Vinod Chand v. State of Rajasthan (59) — 1992 DIGILAW 929 (RAJ)

Honble A.K. MATHUR, J. — The petitioner by this writ petition has prayed that Rule 5.16 of the Rajasthan Motor Vehicles Rules, 1990 may be declared as ultra-vires and it may be declared that there is no provision either under the Motor Vehicles Act, 1988 or the Rajasthan Motor Vehicles Rules, 1990, authorising the Regional Transport Authority to fix rotation of the stage carriages on a route and lastly, it is also prayed that the order dated 3.9.1991 of the Regional Transport Authority, Udaipur may be quashed. 2. The brief facts giving rise to this writ petition are that Banswara to Sallopat route lies in Udaipur Region. It is 70 kms. in length and is A Class route. The Regional Transport Authority, Udaipur earlier sanctioned five stage carriage permits on the route. The petitioner is holding one out of the said five permits being permit No. P. St. 2274/85 valid upto 2.6.1993. The Regional Transport Authority by the resolution dated 24.2.1990 included Sallopat to Monadungar 21 kms. portion in the said permit, out of which 6 kms. lies in the State of Rajasthan 15 Kms. in the State of Gujarat. Hence the route has become Banswara to Monadungar and the petitioner is providing a regular passenger transport service on the route. Respondent No. 3 on 16.10 1990 submitted an application for grant of a stage carriage permit on the said route. He also proposed his time-table in column No. 12 of the application. The Regional Transport Authority, Udaipur in its meeting dated 15.3. 1991 granted three permits including the one granted in favour of the respondent No. 3. It was endorsed that the petitioner will provide one return service daily. The said resolution of the Regional Transport Authority was challenged in a revision petition before the State Transport Appellate Tribunal, Jaipur and stay order was granted in favour of two other grantees. The respondent No . 3, however, availed the sanctioned permit before the said resolution was reducedinto writing and permit was also issued to respondents No. 3 and 4. With the issue of the permits simultaneously the time table as proposed by him was sanctioned by the Regional Transport Authority. The petitioner received a notice from the Secretary, Regional Transport Authority, Udaipur in the second week of August, 1991. With the issue of the permits simultaneously the time table as proposed by him was sanctioned by the Regional Transport Authority. The petitioner received a notice from the Secretary, Regional Transport Authority, Udaipur in the second week of August, 1991. In the said notice it was mentioned that the respondent No. 3 has submitted an application on 3.7.1991 for permitting him to ply his bus in rotation with the existing permit holders. A copy of the application was not endorsed. However, the copy of the notice which was received by the petitioner has been placed on the record as Annex. 4. The date fixed was 28.8.1991, but, as the date was too short, therefore, the matter was adjourerd to 25.9.1991. A copy of the time table fixed by the Authority for providing five daily services on the route by the order dated 30.4.1990 is submitted as Annex. 5 on the record. During the pendency of these proceedings which were initiated on the application moved by the respondent No. 3 dated 3.7.1991, the petitioner came to know on 18.9.1991 that the Member, Regional Transport Authority, Udaipur on 3.9.1991 passed an order directing all the permit holders including the petitioner to ply their vehicles by rotation with the respondent No. 3. The Secretary, Regional Transport Authority, Udaipur in pursuance of the said order issued letters to the existing permit holders including the petitioner to ply their buses in rotation with the respondent No. 3. A copy of the letter has been placed on the record as Annex. 6. In this back-ground the present writ petition has been filed by the petitioner challenging the validity of Rule 5.16 of the Rajasthan Motor Vehicles Rules, 1990 (referred to hereinafter as the Rules of 1990) and the order Annex. 6 as well as the order dated 3.9.1991. 3. Returns have been filed by the respondent No. 3 as well as by the State Government and they have traversed the grounds raised by the petitioner. 4. We have heard the learned counsel for the parties and have also perused the record. 5. Learned counsel for the petitioner first submitted that Rule 5.16 of the Rules of 1990 is arbitrary. Therefore, it is violative of Article 14 of the Constitution of India and it should be struck down, as it has no guidelines provided therein. 4. We have heard the learned counsel for the parties and have also perused the record. 5. Learned counsel for the petitioner first submitted that Rule 5.16 of the Rules of 1990 is arbitrary. Therefore, it is violative of Article 14 of the Constitution of India and it should be struck down, as it has no guidelines provided therein. Learned counsel next submitted that this rule has also now become redundant in view of the provisions of Sections 70 (1), (c), 70 (2), 71(1) and 71 (2) of the Motor Vehicles Act, 1988 (referred to hereinafter as the the Act of 1988). 6. In the alternative, learned counsel submitted that the applicant is master of his time-table and the Regional Transport Authority cannot direct him to operate contrary to what he had applied for in his application at the time of the grant of the permits. Learned counsel for petitioner further submitted that unless the rules are part of the permit, the rules cannot read as part of the permit so as to enable the Regional Transport Authority to fix the time-table in terms of Rule 5.16 of the Rules of 1990. Learned counsel further submitted that once the Regional Transport Authority granted a permit and in that it has been mentioned that the petitioner shall ply one trip daily then subsequently he cannot direct him to ply in rotation. Learned counsel submitted that Rule 90 of Rules of the 1990 has already been repealed and the decision given in the case of Malik Ram vs. Regional Transport Authority, Jaipur (1), is no more good law. Therefore, this decision cannot be decissive in the matter. 7. As against this Mr. Vyas, learned counsel appearing on behalf of respondent No. 3 and the Deputy Government Advocate appearing for the State have strenuously urged that Rule 5.16 of the Rules of 1990 is neither arbitrary nor has it become redundant in view of the provisions of Sections 70, 71 and 72 of the Act of 1988. Learned counsel further submitted that the condition of time-table as given in the permit does not amount to bearing a condition of permit in view of the decision given in the case of Kalusingh vs. Transport Appellate Tribunal (2). Learned counsel further submitted that the condition of time-table as given in the permit does not amount to bearing a condition of permit in view of the decision given in the case of Kalusingh vs. Transport Appellate Tribunal (2). Learned counsel further submitted that in the case of Ram Kumar vs. Regional Transport Authority (3), similar question was also agitated and the learned Single Judge has taken the same view that the change of time-table as given in the permits does not amount to change of condition of permit. Learned counsel submitted that the timetable as given in the permit has not been changed, therefore, the petitioners right to ply the vehicle will not affect by plying the vehicle in rotation. Learned counsel further submitted that the order of the Regional Transport Authority is a provisional one and it is subject to revision. Therefore, this Court should not interfere with it at the instance of the petitioner in its extraordinary jurisdiction and the petitioner should be directed to file a revision against that order. 8. We have heard learned counsel and have also gone through the record. 9. The first question before us is regarding the validity of rule 5.16 of the; Rules of 1990. Rule 5.16 reads as under :- "5.16 Stage carriage regular service. Every Stage carriage shall perform regular service in the manner required by the Transport Authority and shall immediately notify that authority of any failure to do so, with the reason thereof, failure without good reason to render the regular service on any prescribed route shall render the permit liable to suspension or cancellation by the Transport Authority." 10. The Rajasthan Rules have been framed in the purported exercise of the power conferred by the Act of 1988. Rule 5.16 only enables the Regional Transport Authority to regulate the traffic. It is the Transport Authority who shall notify that in what way the stage carriages shall perform the services and failure thereof may render the permit liable to suspension or cancellation by the Transport Authority. The discretion conferred by Rule 5.16 cannot be said to be a blanket discretion but it is a discretion regulated with the need of the traffic and mandate that the stage carriages shall perform regular services in the manner required by the Transport Authority. The discretion conferred by Rule 5.16 cannot be said to be a blanket discretion but it is a discretion regulated with the need of the traffic and mandate that the stage carriages shall perform regular services in the manner required by the Transport Authority. Therefore, the Transport Authorities under the Act of 1988 are the authorities who regulate the transport services and can certainly lay down the manner in which the permit holders shall ply their stage carriages. If there is no regulatory authority then it might lead to chaos. Thus, a power has been conferred on the Transport Authorities under the Act of 1988 to regulate the traffic and a liberal power has been given to them so that they can regulate the traffic looking to the need of the travelling public for providing better services to the public at large. Thus, this discretion conferred on the Transport Authority under Act of 1988 cannot be said to arbitrary so as to be violative of Article 14 of the Constitution of India. 11. The next question is whether Rule 5.16 is redundant on account of the provisions of Sections 70, 71 and 72 of the Act. Section 70 of the Act of 1988 lays down that the applicant shall make an application for a permit and he shall apply for a route or route or the area or areas to which the application is made and proposed to be provided by him and the time table of the normal trips. Section 71 lays down the procedure which shall be adopted by the Regional Transport Authority in considering the application for grant of a stage carriage permit. Sub-sec. (2) says that the Regional Transport Authority can refuse to grant a stage carriage permit if it appears from the time table furnished that the provisions of the Act relating to the speed at which the vehicles may be driven are likely to be contravened. Then, it is further provided that such application can be refused after giving an opportunity to the applicant either to amend the time table so as to conform to the provisions of the Act of 1988. 12. Then, it is further provided that such application can be refused after giving an opportunity to the applicant either to amend the time table so as to conform to the provisions of the Act of 1988. 12. The effect of sub-section (2) of Section 71 of the Act of 1988 is that when the time-table is given by the applicant the Regional Transport Authority shall examine the question whether the time-table given by the applicant conforms to the provision of the speed provided under the Act or not. He shall give him an opportunity of hearing before refusing to grant him permit or he can direct him to amend his time-table so as to conform to the provisions of the speed as given in the Act. Sec. 72 deals with the grant of State carriage permits. Sec. 72 lays down that subject to the provisions of secs. 70 and 71 the permit shall be granted in accordance with the application or with such modification as it deems fit or refuse to grant such a permit. Sub-sec.(2) says that the Regional Transport Authority if it decides to grant a stage carriage permit may grant the permit for a stage carriage of a specified description and may subject to any rules that may be made under the Act and attach to the. permit any one or more of the conditions mentioned in sub-sec.(2) i.e. clauses (i) to (xxiv). Sub sec. (2) clearly says that the Regional Transport Authority while granting the permit can attach any of the conditions mentioned in clauses (i) to (xxiv) to sub-sec. (2) and it further lays down that the grant shall be subject to the provisions of the rules framed under the Act. That shows that the rules which have been framed under the Act are necessarily part of the conditions of the permit and it is absolutely wrong to say that Rule 5.16 has now become redundant, nor can it be said to be beyond the scope of the provisions of Secs. 70, 71 and 72 of the Act. These three provisions i.e. Sections 70, 71 and 72 are a code in itself, as the applications are made under Section 70 and under Sec. 71 the applications are considered and under Section 72 the grant is made on the conditions mentioned in Section 72. 70, 71 and 72 of the Act. These three provisions i.e. Sections 70, 71 and 72 are a code in itself, as the applications are made under Section 70 and under Sec. 71 the applications are considered and under Section 72 the grant is made on the conditions mentioned in Section 72. That includes the rules and other conditions mentioned in sub-section (2) of Section 72. Thus, the rules framed under the Act by the State are neceesarily part of the permits and it cannot be said that the framing of the rules and specially Rule 5.16 is redundant or contrary to Sections 70, 71 and 72 of the Act of 1988. Hence, this contention of Mr. Maheshwari is over-ruled and it is declared that Rule 5.16 of the Rules of 1990 is not ultra-vires either of Article 14 of the Constitution or Sections 70, 71 and 72 of the Act of 1988. 13. Next, Mr. Maheshwari, learned counsel for the petitioner contended that the applicant is the master of his time-table. This contention of the learned counsel is also without any basis. It is true that while applying for grant of a stage carriage he will have to give his time-table for daily trips but that does not mean that simply because he ha* given his time-table, the Regional Transport Authority will not be able to regulate the traffic and the permit holder will be master of regulating the traffic. This submission of the learned counsel is absolutely without any basis. Simply making an application for grant of a permit that does not necessarily mean that the applicant can dictate the terms and the act in an arbitrary way in plying the vehicle in whatever way he likes. The traffic has been regulated by some authority so as to provide properly co-ordinated transport service to the travelling public. The need of the traffic authorities is necessary and precisely for that purpose Rule 5.16 was incorporated. Sub-sec. (2) of Sec. 71 only lays down that while giving the time-table if the time-table given by the applicant appears to be beyond the speed limit fixed by the Regional Transport Authority then he can reject the application or he can ask the applicant to amend the same but he has to be given an opportunity before rejecting the application. (2) of Sec. 71 only lays down that while giving the time-table if the time-table given by the applicant appears to be beyond the speed limit fixed by the Regional Transport Authority then he can reject the application or he can ask the applicant to amend the same but he has to be given an opportunity before rejecting the application. The very fact that a discretion has been given to the Regional Transport Authority to direct the applicant to amend his time-table is indicative of the fact that it is the Transport Authority who is the master who regulates the traffic not the permit holder. 14. In this connection, it will be out of place to refer here the Full Bench decision of this Court given in the case of Malik Ram (supra;, in that case also the same question came up for consideration while interpreting the Rule 90 of the Rajasthan Motor Vehicles Rule, 1951 framed under the Motor Vehicles Act, 1939. Rule 90 and Rule 5.16 is also para material with each other. Rule 90 of the Rules of 1951 reads as under :- "93. State carriages regular daily service by, and limitation capacity of-Every stage carriage shall perform a regular daily service in the manner required by the Transport Authority and shall immediately notify that Authority of any failure to do so, with the reasons therefore. Failure without good reason to render a regular service on any prescribed route shall render the permit liable to suspension or cancellation by the Transport Authority." 15. While dealing with the scope of rule 90, the Full Bench of this Court observed as under :- Subject to the observations (in the judgment - para 9) the Transport Authority is not under a duty so to fix the time-table as to allow every stage carriage holding a permit on a particular route to run thereon daily, and the fixing of a time-table and allowing the stage carriage to run by rotation is not in contravention of rule 90. But it must be made clear that there is a limit to this, and, it would be a waste of national wealth if such a large number of buses are permitted on a certain route that each one gets a turn say only once or twice a week according to the trips fixed per day." 16. But it must be made clear that there is a limit to this, and, it would be a waste of national wealth if such a large number of buses are permitted on a certain route that each one gets a turn say only once or twice a week according to the trips fixed per day." 16. Therefore, the need was emphasised by the Full Bench also that there is some one to regulate the traffic and in the absence of such an authority it will result in a chaos and it will not be in the interest of the travelling public. However, it was observed that the rotation should be fixed in such a way that each bus operator should have a regular service. Thus, the contention of Mr. Maheshwari does not appear to be well founded. 17. Mr. Maheshwari, learned counsel further submitted that once the permit is granted and it is mentioned that the permit holder shall undertake a daily trip, therefore, it has become a part of the conditions of the permit and the Regional Transport Authority cannot subsequently vary the conditions of the permit and direct that the incumbent shall run his vehicle in rotation. In this connection, it may be mentioned that it is a normal practice that whenever there is change of time-table then the provisional time-table is issued and thereafter the objections are invited from the operators on the route and thereafter the time-table is finalised after hearing all the concerned. This appears to be so because the time-table, which has been placed on the record as Annex. 5 by the petitioner dated 30.4.1990 which also says that this provisional time-table is issued on account of the extension of the route. This is further borne out from the fact that when the respondent No. 3 was also inducted as one of the operators on the route a nodes was also to be given to all the concerned parties for hearing and the matter was pending finalisation. But unfortunately, suddenly on an application moved by the incumbent the Regional Transport Authority passed the order on that very application directing the Secretary, Regional Transport to parmit the petitioner to run in rotation. But unfortunately, suddenly on an application moved by the incumbent the Regional Transport Authority passed the order on that very application directing the Secretary, Regional Transport to parmit the petitioner to run in rotation. But the fact is that the simple mention of a daily trip in the permit is not decisive factor so as to deprive the Regional Transport Authority for further regulating the traffic by changing the time-table. Simply because the Regional Transport Authority has mentioned that the incumbent shall take a return trip it does not mean that the Regional Transport Authority is denuded of its power to regulate the service of that permit holder and other persons operating on the same route. Moreover, this Court has already held that the change of time-table given in the permit does not amount to varying the conditions of the permit. 18. In Kalusingh & ors. (supra) a division bench of this Court has categorically laid down that the change of time-table does not amount to varying the conditions of the permit. It was observed as under :- "We may go so far as to hold that merely because a fixed time-table is mentioned in a permit, it cannot be said that by variation of the time - table, there is a variation in the condition of the permit because it is the exhibition part and punctuality aspect of the conditions which must be deemed to be essential parts of these conditions and unless there is variation in the eye of law." It is further observed in para 39 with reference to the decision of various High Courts in the country as under :- "We are in respectful agreement with these High Courts for the reasons mentioned in these judgments and hold the view that variation in the time-table will not be a variation in the condition of permit." 19. Therefore, after this decision of the division bench, the argument of Mr. Maheshwari is absolutely unwarranted and |the same is overruled. Learned counsel further submitted that the decision given in the case of Malik Ram (supra) was with reference to Section 47 (1) (c) of the Motor Vehicles Act, 1939. But the Motor Vehicles Act, 1939 has been repealed and Section 47 now does not survive. Therefore, the law laid down in the case of Malik Ram (supra) is no more good law. The contention of Mr. But the Motor Vehicles Act, 1939 has been repealed and Section 47 now does not survive. Therefore, the law laid down in the case of Malik Ram (supra) is no more good law. The contention of Mr. Maheshwari is with-out any basis. We have reproduced above both the provisions i e. old rule 90 as well as rule 5.16 as framed under the Rules of 1990 by the State of Rajasthan. Both are para material with each other with hardly any change. So far as the discretion of the Regional Transport Authority is concerned as we have discussed above has not been taken away for fixation of the time-table and more-so, the division bench of this Court has already held that variation in the time-table does not amount to variation in the conditions of the permit. Therefore, the ratio laid down by the Full Bench in the case of Malik Ram (supra) still holds good. A similar view has been taken by a learned Single Judge in the case of Ram Kumar and we have also considered this judgment and we are of the view that this case also correctly lays down the law. 20. Mr. Vyas, learned counsel for the respondent submitted that the petitioner could have filed a revision against the order dated 39.1991 passed by the Regional Transport Authority, Udaipur directing the respondent No. 3 to operate in rotation with the other operators. Therefore, this Court should not interfere with this order and direct the petitioner to file a revision if he feels aggrieved. This will not be proper at this stage as we are deciding all the issues involved in the writ petition, therefore, we think it will be proper to overrule this objection of the learned counsel for the respondent. However, we direct the Regional Transport Authority that when he has already issued the notice inviting all the objections. There was no hurry to have passed this order suddenly and atleast he should have waited till the Secretary, Regional Transport Authority put all the material before him in pursuance of the notice issued by him. It is quite possible that the Regional Transport Authority might not be aware of the issuance of the notice. There was no hurry to have passed this order suddenly and atleast he should have waited till the Secretary, Regional Transport Authority put all the material before him in pursuance of the notice issued by him. It is quite possible that the Regional Transport Authority might not be aware of the issuance of the notice. Be that, as it may, it is directed that the Regional Transport Authority shall hear the petitioner along with respondent No. 3 and finalise the matter of rotation to the convenience of all the operators so that each one gets a fair deal in the matter. This should be done by the Regional Transport Authority expeditiously. 21. In the result, the writ petition has no merit, and therefore, the same is dismissed with the above observations.