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2001 DIGILAW 748 (ALL)

GYAN SINGH v. REGIONAL TRANSPORT AUTHORITY, ALIGARH

2001-07-26

SUDHIR NARAIN, V.M.SAHAI

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SUDHIR NARAIN, J. ( 1 ) THE petitioner seeks a writ of mandamus commanding the respondents to decide his objection in respect of grant of temporary or permanent stage carriage permit on the route Sikandara rau-Jalesar-Hathras Junction (in short the route ). ( 2 ) THE petitioner is an existing operator on the route in question. His version is that 40 stage carriages are being piled on the aforesaid route on the basts of permanent permits granted to him and other operators by the authority concerned. The respondents are also going to extend the route in question, which will overlap 15 kms. route of the petitioner out of 25 kms. , the total length of the route. Certain other persons have applied for grant of permit on the route in question. The petitioner is alleged to have filed objection before the Regional Transport authority, Aligarh, respondent No. 1 against the grant of any further permit. His grievance is that if other permit is granted to other persons on the route in question, the petitioner and other operators will not be able to meet out the expenses of vehicles, which they are running along with the taxes, which they are liable to pay. The question is whether the petitioner has a right to seek mandamus commanding the respondents to consider his objection by a speaking order and thereby to function as a quasi-judlcial authority taking into consideration the interest of the petitioner and the persons to whom permit is to be granted. ( 3 ) IN this respect, we have to trace out the history of legislation. Section 46 of the Motor vehicles Act. 1939 (in short the act) provided for submission of the application for grant of stage carriage permit. Section 47 of the said Act provided the procedure in considering application for stage carriage permit by the Regional Transport Authority. Sub-section (1) of section 47 provided for various guidelines, which were to be, considered by the Regional transport Authority white considering an application for stage carriage permit. Clause (f) of sub-section (1) of Section 47 of the Act reads as under ; "47. Procedure of Regional Transport Authority in considering application for stage carriage permit. (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure of Regional Transport Authority in considering application for stage carriage permit. (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (f) the condition of the roads included in the proposed route or area ; and shall also take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose Jurisdiction any part of the proposed route or area lies : provided that other conditions being equal, an application for a stage carriage permit from a cooperative society registered or deemed to have been re-registered under any enactment in force for the time being [and an application for a stage carriage permit from a person who has a valid licence for driving transport vehicles shall, as far as may be, be given preference over applications from individual owners)" ( 4 ) THE Act was repealed by Section 217 of the Motor Vehicles Act. 1988 (in short 1988 Act ). Section 70 of 1988 Act laid down the conditions for grant of permit. Section 71 lays down the procedure of Regional Transport Authority in considering the application for stage carriage permit. It does not contain any provision for considering any representation of any person who is already providing passenger transport facilities. The legislation deliberately deleted this provision with the result that an existing operator cannot claim any right of entertaining his objection and give him opportunity of hearing. This question was considered by the Apex Court in Mithilesh Garg, etc. etc. v. Union of India and others etc. etc. , AIR 1992 SC 443 , where the existing operators challenged the liberalization of private sector operations in the Road Transport field. It was held that Article 19 (1) (g) of the Constitution of India guarantees to all citizens the right to practise any profession, or to carry on any occupation, trade or business subject to reasonable restrictions imposed by the State under Article 19 (6) of the Constitution of India. And in that context, the State can grant permit to private operators and the existing operators have no right to challenge the authority of the State Government to grant such permits. In regard to the filing of objections by the existing operators, the Supreme Court took note of the amendments and held that the right to file objection has been taken away under the new Act. It was observed as under : "the Parliament in its wisdom has completely effaced the above features. The scheme envisaged under Sections 47 and 57 of the old Act has been completely done away with by the Act. The right of existlng-operators to file objections and the provision to impose limit on the number of permits have been taken away. There is no similar provision to that of Section 47 and Section 57 under the Act. The Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalise the grant of permits. Section 71 (1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act. The Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalise the grant of permits. Section 71 (1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act. Section 80 (2), which is the harbinger of liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. There is no provision under the Act like that of Section 47 (3) of the Old Act and as such no limit for the grant of permits can be fixed under the Act. There is. however, a provision under Section 71 (3) (a) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having population of more than five lakhs. " ( 5 ) LEARNED counsel for the petitioner has placed reliance upon the decision of this Court in subhash Chandra Sharma and Regional Transport Authority, Aligarh Region, Aligarh. 1997 (3)ALR 542. In this case, the petitioner had filed a writ of mandamus commanding the Regional transport Authority, Aligarh, not to grant any permit on the route prayed for therein. The Court disposed of the writ petition with the observations that the petitioner can raise the objection before the Regional Transport Authority. In this case, the Court was not considering whether a mandamus can be issued to the Regional Transport Authority to decide an objection. It had also not taken note of the decision of the Supreme Court in Mithilesh Carg (supra ). ( 6 ) IT is also well-settled that mandamus will be issued to enforce the duty laid on a particular officer under law but if no duty is cast under any statute or law, the Court will not issue a mandamus to decide the matter in quasi-Judicial manner treating the objection as a Us between the two parties vide Praga Tools Corporation v. C. V. Imanual and Ors. AIR 1969 SC 1306 . AIR 1969 SC 1306 . If the authority is going to take decision, it may consider various aspects including the objection of any person but unless the authority is bound under law to decide objections of an objector after providing the opportunity of hearing to the objector and pass the order by speaking order, the high Court is not bound to issue any mandamus in exercise of its power to issue a writ of mandamus under Article 226 of the Constitution to decide such objection. ( 7 ) IN view of the above, the writ petition is dismissed. .