Nirmal Kumar v. State of Rajasthan — 1997 DIGILAW 1224 (RAJ)

Honble SINGHAL, J. – All the above writ petitions are disposed of by this common judgment since the controversy is common. (2). The dispute which has been raised before me is in respect of the reciprocal transport agreement entered into between the State of Rajasthan and State of Haryana in which the number of permits as published in the proposal were lessand have been increased while the agreement was entered into. (3). The submission of learned counsel for the petitioners is that such an agreement is contrary to the provisions of Sec. 88(5) of the Motor Vehicles Act, 1988 and two State Authorities have no jurisdiction to enter into an agreement contrary to the proposal. The number of permits cannot be increased as the right of the peti-tioner to raise the objection on such enhanced number of permit is denied. (4). For the sake of convenience, facts of Nirmal Kumar vs. State of Raj. & Ors. (S.B.C.W.P. No. 3112/97), are taken into consideration. The petitioner was taken into consideration. The petitioner was granted a stage carriage permit on Bhadra to Hisar via Bagla inter-State route. The reciprocal transport agreement was enteredinto between the authorities of the State of Rajasthan and Haryana on 9th July, 1997. The said agreement was published in Rajasthan Patrika and Punjab Kesari on 22nd July, 1997. Before executing the final agreement in terms of sub-section 5 and 6 of Sec. 88 of the Act of 1988, the proposal was published in the news paper on 29.4.1997. The proposal was for one permit on the said route while final agreementhas been entered into by the two States for two permits. In the proposal dated 5th April, 1997 published in Rajasthan Patrika on 29th April, 1994 it was provided that with the coming into force of the agreement, all previous bilateral agreements in the matter of road transport between the State of Rajasthan and the State of Haryana shall stand rescinded and all the counter-signatures obtained by each State shall stand cancelled automatically. For grant of counter signature, fresh recommendations, shall be issued by both the Governments as per final agreement. The finalagreement published in Rajasthan Patrika on 22nd July, 1997 which was executed on 9th July, 1997 has provided that all the previous stage carriage permits which are countersigned by either State before coming into force of the agreement shall remain in force. The finalagreement published in Rajasthan Patrika on 22nd July, 1997 which was executed on 9th July, 1997 has provided that all the previous stage carriage permits which are countersigned by either State before coming into force of the agreement shall remain in force. The reciprocal agreements with regard to operations of stage carriages on inter-State routes between Rajasthan and Haryana shall be as perAnnex. 1 & Annex. 2 of the agreement. On the basis of conditions of the agreement, it is submitted that though the right of the petitioner, existing operator under the old agreement is protected, yet the increase in the number of permit beyond the proposal is contrary to the provisions of Sec. 88 (5) of the Act. (5). On behalf of the respondents, it is stated that there is no prohibition or re-striction while entering into an agreement in changing number of permits, after the proposals are notified. The legal requirement is only to consider the representations in respect of the proposed inter-State route and number of permits thereof. Mr. Jangid submits that representations could be for increasing number of the permits or it could be for decreasing the number thereof. The authorities of theState are bound to take into consideration all the representations and an agreement has to be entered into after taking into consideration all such representations. The representations were in fact considered and it is not necessary that representations for decreasing the number of the permits alone are to be considered, it could be for increasing the number of the permits as well. (6). Mr. Kothari submits that in the case of Sahib Ram vs. State of Raj. (1), decided on 28th August, 1992 it was observed that R.T.A. of the concerned region of State can grant a permit for other region in inter-State route and that permit shall be valid if it is countersigned by the State Transport Authority of that State and R.T.A. of the concerned region of other State. Thus it was considered that R.T.A. of theconcerned region can grant a permit on route or portion thereof beyond the agreement entered into and the grant of additional permit beyond agreement on inter-statal route has not been prohibited. The provisions of Sec. 88 of the Act of 1988 were taken into consideration which aims libralization of road transport services. Thus it was considered that R.T.A. of theconcerned region can grant a permit on route or portion thereof beyond the agreement entered into and the grant of additional permit beyond agreement on inter-statal route has not been prohibited. The provisions of Sec. 88 of the Act of 1988 were taken into consideration which aims libralization of road transport services. It was observed that for grant of permit on inter-statal route there is noprohibition. The only thing required was that permit is to be counter- signed by the concerned R.T.A. of the region of the other State. This judgment was considered in the case of Sunil Kumar Ajmera vs. State Transport Authority (2), where the Division Bench has gone a step more than the judgment of Sahib Rams case and it was observed that power to grant permit on inter-statal route even beyond ceiling limitfixed in the agreement, is permissible even in a case where there is a prohibitory clause in the agreement which could not come in the way in granting such a permit as the provisions of the Act have not contemplated such a restriction. In New Vijay Laxmi Bhambhu Transport Company & Anr. vs. State Transport Commissioner (3), the Division Bench directed to counter-sign the permits granted by the Authoritiesof the concerned regions of Rajasthan, though counter-signature on permits outside the scope of agreement was left with the discretion of the Authorities of State of Haryana. The provisions of Sec. 88(5) of the Act of 1988 which are relevant for the purpose of adjudicating the dispute are as under :– ``S. 88 (5) — Every proposal to enter into an agreement between the States to fix the number of permits which is proposed to be granted or countersigned in respect of each route or area, shall be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in regional language circulating in the area or route proposed to be covered by the agreement together with a notice of the date before which representations in connection therewith may be submitted, and the date not being less than thirty days from the date of publication in the Official Gazette, on which, and the authority by which, and the time and place at which, the proposal and any representation received in connection therewith will be considered. (7). (7). From bare perusal of provisions of Sec. 88(5) it would be evident that procedure for entering into an agreement has been provided (i) the proposal has to be for entering into an agreement between the States to fix the number of permitswhich is proposed to be granted or counter-signed in respect of each route or area, (ii) the proposal has to be published by `each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in the regional language circulating in the area or route proposed to be covered by the agreement, (iii) a notice of the date before which representations in connection with the pro-posal are required to be submitted has to be notified, (iv) the time of not less than 30 days from the date of publication of such proposal in the official gazette has to be given (v) the authority by which and the time and place at which, proposal and any representation received is to be considered also is to be notified. (8). So far as procedural part contemplated by Sec. 88(5) of the Act is concer-ned, it is apparently complied with. The dispute is only with the proposal fixing the number of permit which is not adhered in the final agreement, entered into between the States. The Act of 1988 is based on the liberal policy in granting of permits so that free flow of passenger traffic is achieved and irregularities and corruption, favourtism etc. in granting of permit is eliminated. The transport busi-ness may not remain restricted in the hand of a few person, new enterprenure through better conditions of the vehicle etc. and better services may come in the field, if on the basis of the representations received, the number of permits can be produced, then from bare perusal of the provisions of Sec. 88(5) it cannot be inferred that number of permit cannot be increased, what is contemplated by lawis that there must be consideration of the representations. The representations which are received could be either for increasing the number of permits looking to the traffic load, better convenience and other facilities to public, it could be even for reducing the number of permits. The representations can be made by the operators as well as by public. The representations which are received could be either for increasing the number of permits looking to the traffic load, better convenience and other facilities to public, it could be even for reducing the number of permits. The representations can be made by the operators as well as by public. It is no doubt true that right of the permit holder al-ready plying vehicle on the said route to some extent is effected but grant of more permits on the said route is not taking away the legal right of such operator, even agreement dt. 9th July, 1997 has protected the permits already granted earlier under the new agreement. An operator could always be interested that permit number should be reduced as by lesser number of the vehicles, the passengers may be morein a vehicle at a time, resulting in more financial benefits but better convenience to the public also has to be seen at the same time. The provisions of Sec. 88 (5) which have contemplated the consideration of the representations will take into consideration not only the representations of the operators but also the representations of the public in general as also the information which the State Authori-ties may have regarding the traffic load, on the route, conditions of vehicles etc. The consideration is of representations and not of objections. It is not alleged that no consideration of the representations was made. The consideration of the representations for reducing the number or restricting the number to the extent of permits contemplated in the proposal is one aspect and the other aspect is that con- sideration of those representations which have proposed increase for the number of permits. Every transporter in such a situation can only be interested either in keeping the number of permits as less as possible and not to increase it. The other representations which may be for increasing will also fall within the category of representations and therefore, if those representations have been accepted, it cannot be considered that representation for reducing the number of the permits have not properly been considered or the permit holders have been deprived of making any representation because the number of the permit is increased in the agreement from the proposal. Provision of Sec. 88(5) has contemplated that repre-sentations are to be considered. The representations which are relevant or considered proper by the two State Authorities is their discretion. Provision of Sec. 88(5) has contemplated that repre-sentations are to be considered. The representations which are relevant or considered proper by the two State Authorities is their discretion. No mala fide is alleged while entering into such an agreement for increasing the number of the permits. The provisions of Sec. 88(5) do not prohibit increasing the number of permit. According to learned counsel for the petitioner the number of the permit could bereduced in the agreement than shown in the proposal but cannot be increased. This is not the correct interpretation of the provisions of Sec. 88 (5). If the Authorities before entering into an agreement have notified the proposal, they have the right to increase the number of the permit as well as reduce the number of the permit. It depends on the facts and circumstances of the each case and the representationswhich have been received. (9). The right of the petitioners to make the representation in a case where the number is increased is not otherwise denied because it is an open fact that transporter will never prefer increase of the number of the permits on their route. Their representations will only be either to reduce the number of the permit or tokeep as minimum as possible so that their income is not effected. No arguments were advanced as to why the number of permits should be reduced nor any basis is shown by which it could be considered that by providing further opportunity to the petitioner now, any useful purpose could be served. In cases where permits have already been granted, such operators have not been impleaded as respondentsin the petitioners. The grant of more permits does not effect legal rights but it is only a reasonable restriction contemplated by the Legislature so that more vehicles may be operated on a particular route or area. If after considering the representation, State Authorities come to the conclusion that number of the permits has to be increased, they are within their jurisdiction to do so. Not only that, even theDivision Bench of this Court has taken a consistent view that permits could be granted on inter-State route beyond the scope of an agreement. I am not on that point, as this is not the controversy in this case. The controversy is limited only for increasing the number of permits in the agreement which are more than the proposal. I am not on that point, as this is not the controversy in this case. The controversy is limited only for increasing the number of permits in the agreement which are more than the proposal. A proposal become final only when a final shape is given to it and finalshape is by way of an agreement in which proposal can be varied either way, and as such contention which has been raised by the learned counsel for the petitioner that the agreement entered into is not in accordance with the provisions of Sec. 88(5) of the Act of 1988 has no substance. The writ petitions are accordingly dismissed.