Hira Ram Toofani v. State Of Bihar — 1988 DIGILAW 142 (PAT)

Judgment 1. In this writ application the petitioner has prayed for issuance of a writ of certiorari for quashing the orders dated 26th, 27th and 28th Aug. 1982 as contained in Annexure-3 to the writ application, whereby and whereunder the State Transport Authority, Bihar granted permits for the route of Baikunthpur to Ranchi in favour of the respondent Nos. 2 to 5 as also for a writ of or in the nature of mandamus directing the State Government to comply with the provisions of S.47(1-A) and (1-B) of the Motor Vehicles Act 1939 by making provisions of reservation of permits for the members of Scheduled- Caste and Scheduled Tribe. The petitioner allegedly is a member of the Scheduled Caste being belonging to the Chamar Community. 2. In this writ application this Court is not concerned with the other provisions of the Motor Vehicles Act except Chapter IV thereof. Sec. 48 of the Motor Vehicles Act enables a Regional Transport Authority to grant stage carriage permit on an application made to it under S.46, the consideration for grant of permit, however, would be subject to the provisions contained in S.47 of the Motor Vehicles Act. Proviso to the aforementioned S.48 provides that no such permit shall be granted in respect of any rule or area not specified in the application. Sub-Sec. 3 of S.48 provides for conditions, which were to be attached to every permit granted under the said Act. Sec. 47 of the said Act provides for procedure. which are to be followed in the matter of consideration for grant of such carriage permit. 3. By reason of the Act No. 47 of 1978 the Parliament amended the said provision by inserting various Sub-Sections thereto which are as follows :- "(1A) The Government of a State shall reserve in that State certain percentage of stage carriage permits for the Scheduled Caste and Scheduled Tribes. Explanation :- In this Section and in S.55 and 63," Scheduled Castes" and "Scheduled Tribes" have the meanings respectively assigned to them in Art.366 of the Constitution. (1B) The reservation of permits under Sub-Section (1A) shall be in the same ratio as in the case of appointments made by direct recruitment to public services in the State. Explanation :- In this Section and in S.55 and 63," Scheduled Castes" and "Scheduled Tribes" have the meanings respectively assigned to them in Art.366 of the Constitution. (1B) The reservation of permits under Sub-Section (1A) shall be in the same ratio as in the case of appointments made by direct recruitment to public services in the State. (1C) The Government of a State may, having regard to the extent to which persons belonging to economically weaker sections of the community have been granted stage carriage permits in that State - (a) reserve in that State such percentage of stage carriage permits, as may be prescribed for persons belonging to economically weaker sections of the community; or (b) notwithstanding anything contained in the proviso to Sub-Section (1), give preference, in such manner as may be prescribed, to applications for stage carriage permits from such persons. Explanation :- 1. In this Section and in (Ss. 55 and 68) a person shall be deemed to belong to economically weaker Section of the community, if and only if, on the prescribed date,- (a) the annual income of such persons together with the annual income, if any, of the members of his family; or (b) the extent of land (whether in one class or in different classes) held by such person together with that, if any, held, by the members of his family; or (c) the annual income and the extent of land aforesaid does or do, not exceed such limit, as may be prescribed. Explanation :- II For the purposes of Explanation 1 family in relation to an individual, means the wife or husband as the case may be of such individual and the minor children of such individual. (1D) The number of permits reserved under Sub-Sec. (1B) and Cl.(a) of Sub-Sec. (IC) shall not exceed fifty percent of the total number of stage carriage permits granted during a calendar year." (1E) In giving effect to the provisions of Sub-Sec. (1B) and Cl.(a) of Sub-Sec. (1C), the Regional Transport Authority or the State Transport Authority may, if it considers necessary or expedient so to do, group the various routes within its jurisdiction. (1F) Where any stage carriage permit is to be granted from the quota reserved under Sub-Sec. (1B) or Cl.(a) of Sub-Sec. (1C) to any co-operative society registered or deemed to have been registered under any enactment in force for the time being or any firm to which the provisions of the Indian Partnership Act, 1932 (9 of 19821) apply, no permit shall be granted to such society or firm unless the members of the co-operative society or the partners of the firm belong to the Scheduled Castes, the Scheduled Tribes or economically weaker sections of the community : Provided that where the members of such co-operative society or the partners of such firm are partly from the Scheduled Castes, partly from the Scheduled Tribes and partly from the economically weaker sections of the community, or from any two of these categories, any permit under this Sub-Section shall be granted to such society or firm only from the quota reserved for the category to which the largest number of members of the co-operative society or, as the case may be partners of the firm belong : Provided further that where no reservation has been made in the State for economically weaker Section of the community under Cl.(a) of Sub-Sec. (1C), no permit under this Sub-Section shall be granted to a co-operative society or firm unless the members of such society or partners of such firm belong to the Scheduled Castes or the Scheduled Tribes and the permit to such society or firm shall be granted only from the quota reserved for the Scheduled Castes or the Scheduled Tribes according as to whether the larger number of the members of the co-operative society, or partners of the firm, belong to the Scheduled Castes or the Scheduled Tribes. (1G) The circumstances under which, the manner in which, and the extent to which, reservation under Sub-Section (1A) and Cl.(a) of Sub-Sec. (1C) may be carried forward shall be such as may be prescribed. (1G) The circumstances under which, the manner in which, and the extent to which, reservation under Sub-Section (1A) and Cl.(a) of Sub-Sec. (1C) may be carried forward shall be such as may be prescribed. (1H) Notwithstanding anything contained in this Section, an application for a stage carriage permit from a State Transport undertaking for operating in any inter-State route shall be given preference overall other applications :- Provided that the authority shall not grant a permit under this Sub-Section unless it is satisfied that the State Transport undertaking would be able to operate in the inter-State route without detriment to its responsibility for providing efficient and adequate road transport service in any notified area or notified route as is referred to in Sub-Sec. (3) of S.68D where the undertaking operates the service. Explanation :- For the purposes of this Sub-Section inter-State route means any route lying contiguously in two or more States. 3A. The said amended Act 47 of 1978 camel into force with effect from 16-1-1979. It is admitted that till the filing of this writ application, the State of Bihar had not issued any order by a published notification for reservation of quota in or permits in favour of the members of the Scheduled Caste and Scheduled Tribes. In other words the aforementioned provisions inserted by Act No. 47 of 1978 were not given effect to by the State of Bihar. It is relevant to mention here that Motor Vehicles Act, 1939 was amended by Bihar Act. No. 4 of 1979 whereby and whereunder provisions were made for reservation in the matter of grant of permits to the weaker sections of the society and unemployed youth. By a notification dated 15th May, 1978, the Government of Bihar issued a direction in terms of S.43A of the Act as inserted by the State of Bihar laying down a policy of reservation for the grant of permits to the various categories of persons, organisations mentioned therein. A copy of the said notification is contained in Annexure-1 to the writ application. 4. By a notification as contained in Annexure-2 to the writ application the State of Bihar prohibited grant of more than one permit to one family. The said notification was issued in terms of S.43(A-2) of the said Act as amended in the State of Bihar. 5. 4. By a notification as contained in Annexure-2 to the writ application the State of Bihar prohibited grant of more than one permit to one family. The said notification was issued in terms of S.43(A-2) of the said Act as amended in the State of Bihar. 5. The respondent No. 1 invited applications for grant of stage carriage permit each for one trip only for the route Ranchi-Baikunthpur via Ramanujganj Ambikapur. Pursuant to the said advertisement various persons including the petitioner and the respondent Nos. 2 to 5 applied therefor. The respondent No. 1 took up the matter relating to the grant of permits in its meeting dated 26th, 27th and 28th Aug. 1982, 6. According to the petitioner, apart from the fact that he was a member of the Scheduled Castes, he was also holder of B.Sc. degree in agriculture and that he is an unemployed graduate. The petitioner allegedly booked orders for two bus chassis of 1982 model and further in the said meeting produced evidence of financial arrangement made in his favour by the financial institutions. According to the petitioner he was bound to get atleast one out of the four permits, even if his case was to be compared with the general candidates without following the policy of reservation. The petitioner in his writ application has also questioned the claim of the respondent Nos. 2 to 5 one their merits who as stated herein before have been granted said permits. 7. Mr. Karuna Nidhan Keshav, the learned counsel appearing on behalf of the petitioner apart from the aforementioned provisions of the Motor Vehicles Act, 1973 has drawn my attention in the following provisions thereof i.e. S.55, 55(1A), and (B) S.57(3), S.63 S.63(1A) and S.68(c)(i). 8. From a perusal of the impugned orders as contained in Annexure-3 to the writ application, it appears that the permits in respect of the aforementioned route was granted after taking into consideration the claims of the various applicants. The petitioners application for grant of permit was rejected on the ground that his financial condition was not good compared to the other applicants i.e. respondent Nos. 4 and 5. The petitioners application for grant of permit was rejected on the ground that his financial condition was not good compared to the other applicants i.e. respondent Nos. 4 and 5. It has further been mentioned in the said order that the respondent No. 5 is also an unemployed engineer and further the respondent No. 4 had the experience of stage carriage, in view of the fact that his father has a permit in respect of a portion of the route. The said permit being inter-State in nature was directed to remain valid for a period of five years. 9. In this case no counter affidavit has been filed on behalf of the respondents. However, on behalf of respondent No. 1 a notification dated 2nd April, 1984 bearing S.O. No. 453 was produced, from a perusal whereof it appears that the State of Bihar in exercise of its power conferred upon it under S.47(1A). 55 (1A) and 63(11A) directed that in respect of the permits to be granted under Ss.48, 56 and 63(ii) of the Act 14% of the routes are to be reserved for the members of the Scheduled Castes and 10% thereof for the member of Scheduled Tribes. Prior to that it appears that a notification was issued on 7th Nov. 1983 being S.O. No. 1357. By reason of the said notification a similar provision had been made. However, by reason of the aforementioned notification dated 2nd April, 1984 the aforementioned notification dated 7th Nov. 1983 was cancelled. 10. In this case evidently at the point of time when the impugned orders have been passed no notification in terms of S.47(1A) or 55(1A) or under S.63(11A) of the Act came into being. In terms of S.47(1A) of the Act the State Government has been enjoined with a duty to reserve certain percentage of State carriage permit, for the members of Scheduled Castes and Scheduled Tribes. By reason of S.47(1B) thereof the reservation is to be made in the same ratio as in the case of appointments made by direct recruitment of public servant in the State. By reason of S.47(1B) thereof the reservation is to be made in the same ratio as in the case of appointments made by direct recruitment of public servant in the State. So far as the backward community is concerned, as notices hereinbefore in terms of Sub-Sec.(2) of S.43-A as amended by the State of Bihar by Bihar Act No. 4 of 1979 the State was empowered to issue direction from time to time in the interest of promotion of economic welfare of the weaker sections of the people and to give priority to applicants of such class or category in granting permits. 11. The power of the State Government to issue such direction in terms of S.43A(1) of the Act as amended by the State of Bihar has received the sanction of the Parliament by reason of S.47(1C) of the Act. By reason of the provision contained in S.47(1B), the total percentage of the permits which were to be granted during calendar year in terms of S.47(1B) and 5. 47(1C) of the Act would not exceed 50%, thereof. In terms of Sub-Section(1E) of S.47 of the Act, the Regional Transport Authority or the State Transport Authority, may, if it considers necessary or expedient so to do, group the various routes within its jurisdiction. As notices hereinbefore by reason of the impugned orders as contained in Annexure-3 to the writ application, permits have been granted for a period of five years. 12. The learned counsel has in this connection referred to the case of A. Viswanathan V/s. State Transport Appellate Tribunal, Pondicherry, AIR 1987 SC 731 and drew my attention to para 3 of the said judgement. In the said judgement the practice of the transport Authorities to issue temporary permits repeatedly was deprecated inter alia on the ground that thereby the interest of persons belonging to the Scheduled Castes, Scheduled Tribes or economically weaker sections of the community had been prejudiced as they were notable to enjoy the benefit of the reservation. 13. As noticed hereinbefore, by reason of the impugned order itself, the applications for grant of permit to the petitioner was rejected mainly on the ground that the financial condition of the respondent Nos. 4 and 5 are better compared to that of the petitioner. This comparison might have been relevant for the purpose of considering the grant of permit of a general candidate. 4 and 5 are better compared to that of the petitioner. This comparison might have been relevant for the purpose of considering the grant of permit of a general candidate. However, the very fact that the petitioners application has been rejected only on that ground is a point to the fact that intent and object of Parliament in inserting of Act No. 47 of 1978 could not be achieved in view of the callous attitude on the part of the State of Bihar. The State of Bihar although as noticed hereinbefore had issued notifications in exercise of its power conferred upon it under S.43A(2) of the Motor Vehicles Act as amended by Bihar Act No. 4 of 1979, but had evidently failed to comply with the statutory mandate as was required by the aforementioned Act No. 47 of 1978 immediately after the same came into force. It may be mentioned that by reason of the aforementioned Notification as contained in Annexure-1 to the writ application, the State of Bihar did lay down a reservation policy whereby and whereunder 15% permits were to be reserved for the candidates belonging to the Schedule Castes and Scheduled Tribes. However, in the instant case, the learned counsel for the petitioner fairly and rightly did not press into service the aforementioned notification as contained in Annexure-1 to the writ application as the same had no application to the facts and circumstances of the case. 14. From a perusal of the impugned order as contained in Annexure-3 to the writ application, although it appears that the petitioner has drawn attention of the respondent No. 1 authority to the fact that he is a member of Scheduled Castes as also an unemployed graduate but evidently the question as to whether the petitioner should get priority in view of the fact that he was a member of Scheduled Castes could not be taken into consideration by the respondent authority in view of the fact that no notification was issued by the State in terms of S.47(1A) of the Act. 15. There is, however, no dispute that the State of Bihar has not yet framed any rule in terms of S.66(1C) in respect of the matter relating to percentage of State carriage permit or public carriers permits to be reserved under S.47 or 55 for economically weaker sections of the community. 16. 15. There is, however, no dispute that the State of Bihar has not yet framed any rule in terms of S.66(1C) in respect of the matter relating to percentage of State carriage permit or public carriers permits to be reserved under S.47 or 55 for economically weaker sections of the community. 16. However, it is now a settled law that, the power to make rule being a legislative power the High Court in exercise of its writ jurisdiction can/could not issue any writ directing the State to frame any rule in this regard. Now, it is evident that the State of Bihar has issued such a notification being S.O. No. 453 dated 2nd April, 1984,. However, as noticed hereinbefore no rule has yet been framed in terms of S.68(C1) of the Act. The very fact, that in terms of S.48 of the Act, a stage carriage permit can be granted by Regional Transport Authority on an application made to it under S.46 of the Act is always subject to the provisions of S.47, thereof clearly goes to show that before grant of such permit, the factors enumerated under S.47 thereto must be fulfilled. By reason of the Act No. 47 of 1978 several factors meaning thereby the factors enumerated under S.47(1A)(h) are bound to be complied with. 17. The State Transport Authority or a Regional Transport Authority are constituted by the State Government in terms of S.44 of the said Act. The Regional Transport Authority is to exercise the powers and functions conferred by or under Chapter IV thereof. It is needless to add that grant of permit is within the domain of the Regional Transport Authority. The power, however to grant such permit as noticed hereinbefore is circumscribed by the factors enumerated in S.47 thereto and further before grant of such permit, the Regional Transport Authority or the State Transport Authority, as the case may be, must comply with the procedure as laid down under S.57 thereof. In this connection, the scheme of the Act in the matter of grant of stage carriage permit is well known and need not be repeated here. The aforementioned matter has been dealt with by the Supreme Court in Abdul Mateen V/s. Ram Kailash Pandey reported in (1963) 3 SCR 523 : ( AIR 1963 SC 64 ). 18. In this connection, the scheme of the Act in the matter of grant of stage carriage permit is well known and need not be repeated here. The aforementioned matter has been dealt with by the Supreme Court in Abdul Mateen V/s. Ram Kailash Pandey reported in (1963) 3 SCR 523 : ( AIR 1963 SC 64 ). 18. In this view of the matter there cannot be any doubt that although the impugned order is not vitiated by reason of non compliance of the provisions contained in S.47(1A) of the Act, but there cannot be any doubt whatever that in future whenever permits are granted, the authorities must comply with the aforementioned provisions and comply with the reservation policy as reflected in the aforementioned amendment Act read with the aforementioned notification bearing No. S.O. 453 dated 2nd April, 1984. Evidently the aforementioned provisions have been inserted in tune with Cl.4 of Art.15 of the Constitution of India. There is no doubt that the State of Bihar took long time in complying with the mandate of the statute but once it has been done, the same should be implemented in right earnest. 19. Mr. Karuna Nidhan Keshav informed that inspite of the issuance of the aforementioned notification, the authorities concerned have not yet given effect to the aforementioned notification. If that be so, the attitude of the authorities must be condemned. 20. The learned Standing Counsel No. 1 on the other hand, assures me that the State of Bihar intend to implement the aforementioned provisions of the Act relating, to reservation of quota for the members of Schedule Castes and Scheduled Tribes and with regard to weaker Section of the community in its right earnest. 21. In this view of the matter, although no relief can be granted in this writ petition, it is hereby declared that the provisions contained in S.47(1A) S.55(1A) S.63(11A) of the Act are mandatory in nature and before grant of permits under S.48, 56 and 63(ii) of the Act, the transport authorities must comply with the requirements of law, as stated herein before. 22. With the aforementioned directions and observations this application is disposed of. However, there will be no order as to costs.