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Madhya Pradesh High Court · body

2003 DIGILAW 1116 (MP)

ORCHA TRANSPORT CO. v. GULSHER AHMED

2003-09-23

RAJENDRA MENON

body2003
ORDER : Invoking the extraordinary jurisdiction of this Court under section 226 and 227 of the Constitution, petitioner's have called in question tenability of the order dated 7-7-2003 passed by the State Transport Appellate Tribunal, M.P., Gwalior Annexure P-4 directing the authorities to counter sign the inter-state permit granted to respondent No. 1 by the authorities of the Govt. of Uttar Pradesh. 2. Petitioners claim that they are old and established regular permit holders in the route Tikamgarh to Mauranipur via Kanera and Tikamgarh to Harpalpur via Kanera for one return trip daily. It is the case of the petitioners that through these permits granted to them, they cover Tikamgarh to Mauranipur which is 68 kilometers in length. It is their case that by the order granting countersignature to respondent No. 1 petitioners right are being adversely affected and an illegal grant of countersignature to the respondent No. 1 is being made. 3. Respondent No. 1 applied for and were granted an interstate permit on Tikamgarh to Jhansi viz Kanera, Mauranipur Niwadi having total distance of 141 kilometers out of which 75 kilometers falls in Madhya Pradesh and 66 kilometers in the state of Uttar Pradesh. The said route is covered by Reciprocal Agreement arrived at between the State of Madhya Pradesh and Uttar Pradesh with effect from 1-6-1994. Under this Reciprocal Agreement, two single trips by one permit each are allotted to the nominee of U.P. and M.P. respectively. Respondent No. 1 was granted a fresh permit on the basis of the said agreement for two single trips by the State Transport Authority, U.P. on 26-10-2002 for a period with effect from 25-11-2002 to 24-11-2007. The said permit being interstate permit has to be countersigned under section 88(1) of the Motor Vehicles Act, 1988 by the M.P. Authority before it comes into effect in Madhya Pradesh for the portion lying in the said State. A copy of the timings of the said permit is annexed as Annexure P-4/A. 4. It is the case of the petitioners that in the route in question i.e. Tikamgarh to Jhansi via Kanera, certain portion is covered by the approved Scheme No.68 published on 12-4-1985. A copy of the timings of the said permit is annexed as Annexure P-4/A. 4. It is the case of the petitioners that in the route in question i.e. Tikamgarh to Jhansi via Kanera, certain portion is covered by the approved Scheme No.68 published on 12-4-1985. Part route between Tikamgarh to Mauranipur viz Kanera being 68 kilometers is reserved for exclusive operation to the M.P.S.R.T.C. and as such no permit for the aforesaid reserved route can be granted to respondent No. 1 in view of the Scheme. It is the case of the petitioners that in view of the bar created by Scheme No. 68, the respondent No. 1 was not entitled to hold the permit as he was not an existing operator as contemplated under Clause-3 of Scheme No. 68. Copy of the Scheme is filed as (Annexure P-5). 5. After the interstate permit was granted to respondent No. 1 by the authorities of the State of Uttar Pradesh, respondent No. 1 applied for countersignature on 30-11-2002. The aforesaid application was opposed by the petitioners vide (Annexure P-6). The Secretary, State Transport Authority, M.P. vide order dated 13-12-2002 (Annexure P-7) has rejected the application for countersignature as it was hit by Scheme No. 68 which covers a portion of the route. 6. Against the aforesaid order of rejecting countersignature, respondent No. 1 preferred an appeal No. 33/2003 before the State Transport Appellate Tribunal, M.P. with a prayer for stay. The petitioners have opposed the appeal as well as the stay application on the ground that no countersignature can be granted in view of the Scheme as well as of clash of timings. Petitioners contend that the timings granted to the respondent No. 1 is also unsustainable. 7. However, while the matter was pending consideration before the State Transport Appellate Tribunal, M.P., a Gazette notification Annexure P-9 in exercise of the powers under section 102 of the Motor Vehicles Act, 1986 was issued by the State of Madhya Pradesh amending Scheme No. 68. Petitioners contend that the timings granted to the respondent No. 1 is also unsustainable. 7. However, while the matter was pending consideration before the State Transport Appellate Tribunal, M.P., a Gazette notification Annexure P-9 in exercise of the powers under section 102 of the Motor Vehicles Act, 1986 was issued by the State of Madhya Pradesh amending Scheme No. 68. Accordingly, the following was added in Scheme No. 68 :- "Notwithstanding anything contained in this Scheme in addition to the Madhya Pradesh Road Transport Corporation Services, the private operators, who will be granted permit by the State Transport Authority on the route Tikamgarh, Jhansi via Kanera, Mauranipur, Niwadi as specified in this scheme under the terms of Reciprocal Transport Agreement between the State of Madhya Pradesh and Uttar Pradesh, shall be allowed to ply Stage Carriage Services." In view of the aforesaid amended provision, the State Transport Appellate Tribunal, M.P. directed for countersignature of the permit as the Scheme stands amended and now permit can be granted. 8. It is submitted by Shri J. P. Gupta, learned Sr. counsel that a bare reading of the aforesaid amendment as contained in Annexure P-9 and the language therein indicates that permits to be granted to private operators are only those private operators who are granted the same after issuance of the notification on 2nd May, 2003. It was argued by him that as permit of respondent No. 1 was granted by the authorities of the State of Uttar Pradesh on 26-10-2002, respondent No. 1 does not fall within the category of private operators who became entitled to ply under the modification. He emphasised that the words used in the notification clearly indicates that the world at large shall get opportunity to seek for grant of permit under the modification provision. Emphasise is made on the following words "who will be granted permit by the State Transport Authority." It is also emphasised by him that the Secretary, Govt. of Madhya Pradesh vide Annexure P-10 has clearly stipulated that opportunity has to be given to all private operators who file applications and after consideration of the applications a decisions has to be taken in judicial manner by the competent authority as to the private operators to whom the permit is to be granted. of Madhya Pradesh vide Annexure P-10 has clearly stipulated that opportunity has to be given to all private operators who file applications and after consideration of the applications a decisions has to be taken in judicial manner by the competent authority as to the private operators to whom the permit is to be granted. It was argued by him that this order does refer to existing private permit holders on the date of the order but it has to be interpreted to mean that it will be only to such holders who applied for permit after the date of the notification i.e. 2-5-2003. It is, therefore, the case of the petitioners that countersignature on a permit granted by the Uttar Pradesh authorities on 26-10-2002 is not permissible under the modified notification Annexure P-9 dated 2-5-2003 and therefore, the order of State Transport Appellate Tribunal, M.P. is unsustainable and the learned Tribunal has misconceived the notification by wrongly applying it to respondent No. 2 for granting countersignature. It is, therefore, the case of the petitioners that countersignature to the respondent No. 1 cannot be granted. 9. On behalf of respondent No. 1, a detailed return has been filed and various preliminary objections have been raised with regard to the locus-standi of the petitioners to challenge the order of the Tribunal and propriety in impugning the action. However, on merit it is submitted that after the Scheme was modified, the right to the respondent No. 1 to apply for countersignature accrued and as the interstate permit granted become a valid permit only after countersignature, the order of the Tribunal is justified. It is argued by Shri B. K. Rawat, learned counsel appearing for the respondent No. 1 that countersignature of permit and grant of permit are in fact the same thing. It is submitted by him that earlier countersignature was refused by the State Transport Authorities vide Annexure P-7 dated 13-12-2002 only on the ground that no private operator can be permitted to ply on the route as part of it is hit by Scheme No. 68. The aforesaid embargo created by the Scheme having been withdrawn vide notification dated 2-5-2003 Annexure P-9, the Tribunal had rightly granted countersignature. The aforesaid embargo created by the Scheme having been withdrawn vide notification dated 2-5-2003 Annexure P-9, the Tribunal had rightly granted countersignature. It was also submitted by learned counsel for the respondent No. 1 that under the existing Reciprocal Agreement entered into between State of Madhya Pradesh and State of Uttar Pradesh in the route in question, one permit each is fixed for both the States. Copy of the agreement is filed as Annexure R(1)/1. Against the quota fixed for M.P. State, State Carriage Permit has been granted to one Smt. Hajjan Hasmat Jahan vide order dated 21-7-2002 Annexure R(1)/2 by the State of Madhya Pradesh and countersignature has been made by the Uttar Pradesh authorities and the vehicle in question is plying on the route. It is submitted that similarly, permit under the quota of Uttar Pradesh State granted to respondent No. 1 is to be countersigned by the State of M. P. which was initially rejected because of the Scheme but subsequently as the Scheme has been modified countersignature has been granted by the Tribunal on 7-7-2003 and with effect from 9-7-2003 respondent's permit has been countersigned. It is, therefore the case of the respondent No. 1 that there is no illegality in the matter and no interference is called for. 10. As far as the question of timing is concerned, the said respondent in the return has indicated that if the petitioners submit an application for alteration of timing in public interest before the granting authority, the respondent submits that he will co-operate with the granting Transport Authority so that the timing can be adjusted suitably in public interest. 11. I have heard learned counsel for the parties at length and perused the records. 12. Even though various preliminary objections were raised but during the course of hearing, Shri B. K. Rawat, learned counsel for respondent No. 1 mainly emphasised with regard to merit of the matter. That being so, I am not inclined to reject the petition on the preliminary objections raised by the respondent No.1 but propose to consider the matter on merit. 13. Admittedly, the permit to respondent No. 1 was granted by the State of Uttar Pradesh on 26-10-2002 on the basis of the Reciprocal Agreement entered into between the States in question. That being so, I am not inclined to reject the petition on the preliminary objections raised by the respondent No.1 but propose to consider the matter on merit. 13. Admittedly, the permit to respondent No. 1 was granted by the State of Uttar Pradesh on 26-10-2002 on the basis of the Reciprocal Agreement entered into between the States in question. The interstate permit is granted in accordance with the agreement and to ply the vehicle in the other State, countersignature under section 88 of the Motor Vehicles Act is required. The interstate permit is not a valid permit until and unless it is countersigned by the other State. The main argument of Shri J. P. Gupta, learned Sr. counsel was that the permit was granted to respondent No. 1 on 26-10-2002 by the authorities of the Uttar Pradesh State and therefore they do not fall within the ambit of private operators who will be granted permit as contemplated in the amended notification Annexure P-9. A permit-holder already having a permit issued prior to 2-5-2003 does not become a private operator who will be granted permit. Emphasizing on the words "who will be granted permit", the argument of learned Sr. counsel is that the modified provision will only apply to such of the private operators who are granted permit after 2-5-2003 and not before that. 14. Even though the aforesaid argument on the face of it may look attractive but to consider the aforesaid preposition putforth by learned Sr. counsel, this, Court is required to consider the matter keeping in view the purpose for which the modification in the Scheme No. 68 has been made and the fact as to whether interstate permit granted by one State and not countersigned by the other State can be said to be a valid permit. 15. As far as the intention of modification is concerned, it is seen that the interstate permit was issued by the authorities of the State of Madhya Pradesh in pursuance to the Reciprocal Agreement to one Smt. Hajjan Hasmat Jahan vide order dated 21-7-2002 Annexure R(1)/2. 15. As far as the intention of modification is concerned, it is seen that the interstate permit was issued by the authorities of the State of Madhya Pradesh in pursuance to the Reciprocal Agreement to one Smt. Hajjan Hasmat Jahan vide order dated 21-7-2002 Annexure R(1)/2. The said person moved an application for modification of the Scheme mainly on the ground that the interstate permit granted to her is of no consequence until and unless Scheme No. 68 is modified as she is unable to ply on the entire route for which permit has been granted to her in view of the Scheme. 16. In this regard, a perusal of the order dated 26-4-2003 (Annexure P-10) issued by the State Govt. indicates that Smt. Hajjan Hasmat Jahan made a complaint and in pursuance thereof, proceedings for modification of Scheme No. 68 and 38 under section 102 of the Motor Vehicles Act was initiated and finally the order was passed for modifying the Scheme. Even though by referring to para 9 of the said order during the course of hearing, Shri J. P. Gupta, learned Sr. counsel tried to emphasise that the order clearly stipulates that applications have to be called for after modification of the Scheme and then permit has to be granted and therefore respondent No. 1 cannot claim countersignature on the basis of the aforesaid modification. It is the considered view of this Court that the observations made in para 9 of Annexure P-10 cannot be read in isolation. The entire order has to be read in its totality. If it is read in its totality, the purpose seems to be to given effect to the interstate agreement and to effectively implement the name. The entire process for amendment under section 102 was initiated at the instance of a interstate permit holder and therefore it cannot be construed that the observations made in para 9 indicates that applications has to be invited and then only permit has to be granted. That may be applicable only in such cases when fresh applications are to be considered on various routes after amendment of the Scheme but it cannot be construed to me that the interstate permit holder cannot seek countersignature on the basis of the aforesaid modification. That may be applicable only in such cases when fresh applications are to be considered on various routes after amendment of the Scheme but it cannot be construed to me that the interstate permit holder cannot seek countersignature on the basis of the aforesaid modification. If Smt. Hajjan Hasmat Jahan can ask for modification of the Scheme for the purpose of utilising the permit already granted to her by the State of Madhya Pradesh, there is no reason why similar benefit cannot be granted to respondent No. 1 who is seeking countersignature of his permit from the State of Madhya Pradesh. The intention, therefore, in issuing the notification Annexure P-9 seems to be only to throw open the portion indicated in the notification for operation of the private operators and the words used cannot be construed in such a manner so as to frustrate the intention. The use of the word "who will be granted permit has to be given a liberal interpretation and therefore the interpretation advanced by learned counsel seems to be misconceived. 17. Apart from the above, I am of the considered view that the order passed by the State Transport Tribunal cannot be interfered with for the reasons that a Permit as defined in section 2(3) of the Motor Vehicles Act, means a permit issued by the State or Regional Transport Authority or any other Authority authorising the use of a motor vehicle or the transport vehicle. It is, therefore, in fact an authorization issued by a competent authority authorizing the use of transport vehicle on certain terms and conditions. An interstate permit issued by one State is not valid in the other State unless countersigned by the competent authority of the other State. The aforesaid is clear from section 88 of the Motor Vehicles Act. It is, therefore seen that an interstate permit granted by one State is not valid in a part falling in another State until and unless it is countersigned by the authorities of the said State. The meaning thereof, that emerges from a bare reading of section 88(1) is that an interstate permit shall be valid only in the State in which it has been granted and in the other State validity is infused into the permit only when it is countersigned by the authority of other State. The meaning thereof, that emerges from a bare reading of section 88(1) is that an interstate permit shall be valid only in the State in which it has been granted and in the other State validity is infused into the permit only when it is countersigned by the authority of other State. The purpose for obtaining permit by an operator is to ply the vehicle on the route for which permit is granted. A permit on interstate route gives right to the permit holder to use it in the other State only if it is countersigned. Therefore, a primary permit issued by one State becomes a permit in accordance with law in the other State only when it is countersigned in accordance with the provisions of section 88(1). In fact to call such an interstate permit a valid permit capable of one in both the States or for on the entire route for which is issued, the requirement of countersignature has to be fulfilled, until and unless a permit granted by one State for a interstate use is countersigned by the authorities of the other State, it does not become a valid permit. In this regard, certain observations made by a Full Bench of the Mysore High Court in the case of T. Narayanaswamy vs. Regional Transport Authority and others, AIR 1971 Mysore 276 may be relevant. 18. After considering the provisions of section 63 of the Motor Vehicles Act, 1939, which is a parameter under section 68 of the present Act and on perusal of the arguments advanced before the Full Bench as reproduced in para 4 and 5 of the aforesaid judgment, it is clear that the question considered was with regard to countersignature of a permit by authorities of one State for validation of interstate permit, after considering various submissions it has been observed that the interstate permit, the moment it is granted by the State authority becomes a permit in the full sense is not correct. It has been held in the aforesaid case that mere grant of permit in respect of a interstate route by one authority having jurisdiction in one State does not at once make the permit valid for operation on entire part of the route. It has been held in the aforesaid case that mere grant of permit in respect of a interstate route by one authority having jurisdiction in one State does not at once make the permit valid for operation on entire part of the route. It has been held after considering various judgments that an interstate permit becomes a valid permit only after countersignature from the concerned authority of the other State is obtained. In this regard, observations made in para 20 and 21 are very relevant. It has been held in the aforesaid case placing reliance of an earlier judgment of the High Court in the case of M. R. Revanna and others vs. The Mysore Revenue Appellate Tribunal, Bangalore and others, AIR 1970 Mysore 219, that what is originally granted is only a primary permit purporting to be an interstate permit and it becomes an interstate permit only when it is countersigned by the concerned authorities of the other State. It has been held that to constitute a valid permit and to continue operation in interstate route, a right accrues to the private operators only after obtaining countersignature from the concerned authorities of the other State. From the aforesaid, it is clear that the interstate permit granted by one State without its countersignature by the concerned authority of the other State is not a valid permit, it becomes valid if it is countersigned by the authorities of the other State. 19. Apart from the aforesaid, it may also relevant to refer to another judgment of the Supreme Court in the Case of T. N. Raghunatha Reddy vs. Mysore State Transport Authority, AIR 1971 SC 1662 where even though the consideration was as to whether a private operator can be said to be an existing permit holder on a particular date, an observation has been made that if the permit holder had not obtained countersignature on the interstate permit on the said date, he does not become an existing permit holder. This observation made in para 11 and 15 of the aforesaid judgment clearly indicates that under the law, an interstate permit becomes a valid permit only if it is countersigned. 20. This observation made in para 11 and 15 of the aforesaid judgment clearly indicates that under the law, an interstate permit becomes a valid permit only if it is countersigned. 20. If the aforesaid-principle is applied, then the permit granted to the respondent No. 1 on 26-11-2002 was a primary permit and it could become a valid interstate permit only, if it was countersigned by the authorities of the State of Madhya Pradesh. When the respondent No. 1 presented the permit for countersignature to validate it, the same was refused to him by the authorities of State of Madhya Pradesh vide order dated 13-12-2002 (Annexure P-7). Rightly so, because on the said date, no permit could be granted on the route in question as it was hit by Scheme No. 68. A perusal of order (Annexure P-7) dated 13-12-2002 clearly indicates that countersignature was not granted because the Scheme of 68 came in the way of the respondent No. 1. However, once the Scheme was amended and notification (Annexure P-9) was issued, the embargo was lifted, respondent No. 1 became entitled to seek validation of his permit and countersignature could be granted after the said date. 21. Considering the aforesaid aspect of the matter, I am of the view that the word 'who will be granted permit' as appearing in the amendment notification Annexure P-9 has to be construed to mean that it would apply to private operators like respondent No. 1 also and the strict interpretation advanced by learned Sr. counsel on behalf of the petitioners cannot be accepted. Even though, the word countersignature is not mentioned in the aforesaid notification but considering the purpose for which the notification was issued and the position that emerges in the backdrop of the judgments referred to hereinabove, it is to be construed to mean that granting of countersignature would also come within the ambit of grant of permit as stipulated therein. 22. Considering the totality of the facts and circumstances of the case in the backdrop of the discussions made hereinabove, no ground to interfere with the order passed by the State Transport Appellate Tribunal directing for countersignature of the respondent No. 1 permit is called for. In that view of the matter, there is no illegality in the order warranting interference by this Court. 23. In that view of the matter, there is no illegality in the order warranting interference by this Court. 23. However, as the question of timing remain undecided and while considering the question vide Annexure P-7 dated 13-12-2002, the authorities have held that as countersignature is being refused, the question of timing is not to be considered and in view of the specific averments made by respondent No. 1 in its return in reply to para B(iii) to the following effect :- "Still, the respondent No. 1 submits that if the petitioners submits any application for alteration of timing in public interest before the granting authority, this respondent submits that he will co-operate with the granting Transport Authority so that the timing can be adjusted suitably in public interest". It is directed that the petitioners may be granted opportunity to file appropriate application before the competent authority with regard to objections regarding timing granted to respondent No. 1 and the said authority shall proceed to dispose of the same in accordance with law. 24. Accordingly, the writ petition stands disposed of with the aforesaid.