Research › Search › Judgment

Allahabad High Court · body

2003 DIGILAW 1901 (ALL)

MOHD SAGIR v. REGIONAL TRANSPORT AUTHORITY ALIGARH THROUGH ITS CHAIRMAN

2003-08-25

B.S.CHAUHAN

body2003
B. S. CHAUHAN, J. This writ petition has been filed raising the grievance that the petitioner is an existing operator and permits are granted on his route on temporary basis repeatedly, which is not permissible in law. 2. Facts and circumstances giving rise to this case are that petitioner claims to hold a permanent stage carriage permit on the route in question, namely, Aligarh-Sikandera Rau, Jalesar- Hathras Junction. His grievance is that the Regional Transport Authority, respondent No. 1 is successively/repeatedly granting temporary stage carriage permits on the said route,which is not permissible in law. Petitioner has filed representation/objections dated 30-3-2002 before the respondent No. 1 Regional Transport Authority, Aligarh, which has not yet been decided. Hence this petition. 3. Shri A. R. Dube, learned Counsel for the petitioner has submitted that granting temporary stage carriage permit successively/repeatedly is not envisaged under the Motor Vehicles Act, 1988 (hereinafter called the Act, 1988) nor such a course was permissible under the Motor Vehicles Act, 1939 (hereinafter called the Act 1939) and temporary permits are being granted in violation of the statutory provisions. The petitioner has filed representation before the respondent No. 1 which has not been decided. Hence this Court should issue direction to decide the said representation after giving an opportunity of hearing to the petitioner. 4. Learned Standing Counsel has vehemently opposed the petition contending that not a single person who had been granted temporary permit has been impleaded nor any particulars of such grant has been furnished. Petition is not maintainable on such vague pleadings. Even otherwise if petitioner is aggrieved of such a grant, he is free to maintain the revision under the Act, 1988, but writ petition does not lie. Hence the petition is liable to be dismissed. 5. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 6. In identical cases, this Court has directed the petitioners to file representation and directed the authorities to dispose of the same in accordance with law. Therefore, Shri A. R. Dubey, learned Counsel for the petitioner has prayed that the same directions may be issued. 7. The issue of grant of temporary permit repeatedly is no more res integra and it has been considered by the Honble Supreme Court from time to time. 8. Therefore, Shri A. R. Dubey, learned Counsel for the petitioner has prayed that the same directions may be issued. 7. The issue of grant of temporary permit repeatedly is no more res integra and it has been considered by the Honble Supreme Court from time to time. 8. In Gandhara Transport Company Ltd. v. State of Punjab, AIR 1964 SC 1245 and Andhra Pradesh State Road Transport Corporation v. K. Venkatarami Reddy, AIR 1972 SC 683, the Honble Supreme Court held that renewal or re- valuation of a temporary permit or extension of period, for which a temporary permit is issued, is not contemplated by law. The issue of temporary permit by the State Transport Authority continuously for a number of years, is clearly in violation of the Statute for the reason that temporary permit can be granted only and only if the permit is required for the purpose or reasons mentioned in Clauses (a) to (d) of Section 62 (1) of the Act 1939. 9. In M/s Basant Roadways v. State Transport Appellate Tribunal and others, AIR 1987 SC 116 , the Honble Supreme Court has held that such a recourse cannot be taken under the provisions of law, as temporary permit cannot be re-issued repeatedly even when it is made-out that there is a grave need for increasing the regular number of service on the route in question in the public interest. 10. Similarly, in A. Vishwanathan v. State Transport Appellate Tribunal, Pondichery, AIR 1987 SC 731 , the Honble Supreme Court observed as under : "the action taken by the State Transport Authority is issuing temporary permit repeatedly for a long period of years is clearly in violation of the letter and spirit of Section 62 of the Act, under which such temporary permits are issued. . . . . . . . . . . Under Section 62 of the Act, it is permissible to a Regional Transport Authority to issue temporary permits to be effective for a limited period not exceeding four months without following the procedure laid down in Section 57 of the Act. . . . . . . . . . . Under Section 62 of the Act, it is permissible to a Regional Transport Authority to issue temporary permits to be effective for a limited period not exceeding four months without following the procedure laid down in Section 57 of the Act. Such temporary permits can be issued only for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings or for the purposes of a seasonal business or to meet a particular temporary need or pending decision on an application for the renewal of a permit. The Regional Transport Authority cannot grant a temporary permit for a route or area specified in an application for grant of a new permit under Section 46 or Section 54 of the Act during the pendency of the application. That section further provides that a temporary permit issued under that section shall in no case be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such application for renewal. " 11. Thus in view of the above, it is evident that a temporary permit cannot be issued repeatedly/successively, nor its period can be extended and any such grant cannot be held to have been made under the Act. 12. However, the question does arise as to whether petitioner has a right to be heard by the Regional Transport Authority at the initial stage of grant of permit. 13. The authority, while considering the applications for grant of stage carriage permit under the Act, 1939, was under a legal duty to take into consideration "any representation made by the persons already provided Passenger Transport Facilities by any means alongwith/near the proposed route or area. " There is no provision analogous to the proviso to sub-section (1) of Section 47 of the Act, 1939 in the provisions of Section 71 of the Act, 1988. Under the Act, 1988, there is also no provision analogous to sub-section (3) of Section 47 of 1988 Act,which provided for fixing the ceiling of permits on the route. " There is no provision analogous to the proviso to sub-section (1) of Section 47 of the Act, 1939 in the provisions of Section 71 of the Act, 1988. Under the Act, 1988, there is also no provision analogous to sub-section (3) of Section 47 of 1988 Act,which provided for fixing the ceiling of permits on the route. The Legislature has consciously made a departure from the old Act and taken away the right of hearing of the existing operators under the new Act at the time of consideration of applications for grant of permits under the Act, 1988, thus, the existing operators have been deprived of the right of raising any objection, are being heard at the time of grant of permit. Thus, the question arises whether a person, who has no right of hearing at the time of grant of permit, can be heard under Article 226 of the Constitution of India to canvass that the permit would or might be granted in violation of law laid down by this Court. 14. In Mithilesh Garg v. Union of India and others, AIR 1992 SC 443 , the Honble apex Court held that the Act, 1988 excludes the participation of the existing operators in the proceedings pertaining to grant of permit. In view of the provisions of the Act, and existing operator can neither oppose the grant of permit on the ground that his right under Articles 14 and 19 of the Constitution will be affected, for these articles do not confer any right of monopoly on him, nor can he challenge the order of the Transport Authority granting permit on the ground that his income will be adversely affected by induction of more operators on his route. 15. In Secretary, R. T. A. , Guntur and others v. E. Ramarao and others, AIR 1991 AP 11 , the Full Bench of Andhra Pradesh High Court considered the effect of having no provision in the new Act corresponding to the Proviso to Section 47 (1) of the Act,1939 and observed as under : "we are of the view that Parliament intended to negative any right to the existing operators either to submit their representations or to a right of hearing under Section 71 (1) of Section 80 (2) of the new Act. It is, therefore, not open to the Court to imply principles of natural justice and add further restriction than what Parliament has considered sufficient, according to its new legislative party. " 16. Thus, if the existing operator has lost the right of making a representation before a permit is granted to a person on his route, it is beyond imagination that he will have a right to approach the writ Court seeking a direction that before granting Stage carriage permit (Permanent/temporary) he should be heard. 17. In a given case, the private operator may maintain a revision under Section 90 of the Act, 1988 provided he satisfies the State Transport appellate Tribunal that the Transport Authorities exercised their power of granting permit erroneously or illegally and as the existing operator has an alternative remedy of revision before the Tribunal, the writ petition should not be entertained. (Vide Surendra Rao v. Regional Transport Authority, Gorakhpur Region, Gorakhpur and others, AIR 1992 All 211 ). 18. In Sheela Devi v. Jaspal Singh, (1999)1 SCC 209, the Honble Supreme Court set aside the judgment of the High Court without considering its merit, only in 3-lined order on the ground that the High Court had entertained the writ petition though the aggrieved party ought to have availed the remedy by filing revision provided in the Act. 19. A Constitution Bench of the Honble Supreme Court in G. Veerappa Pillai v. Raman and Ramah Ltd. and others, AIR 1952 SC 192 , the Honble apex Court has observed as under : "thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had. As observed already, the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right. " 20. Thus in view of the above, this writ petition should not be entertained as petitioner has approached this Court without exhausting the statutory remedies. 21. As observed already, the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right. " 20. Thus in view of the above, this writ petition should not be entertained as petitioner has approached this Court without exhausting the statutory remedies. 21. Even otherwise, there are no proper pleadings as on what date the temporary permits have been issued and who are the persons to whom the same have been issued? Petition is not maintainable on such vague pleadings nor any effective order can be passed asking respondent No. 1 to decide the representation of the petitioner after giving an opportunity of hearing to him as it would amount to issuing a direction contrary to law. 22. The Court has no competence to issue a direction contrary to law. (Vide Union of India and another v. Kirloskar Pneumatic Co. Ltd. , (1996)4 SCC 453 ; State of U. P. and others v. Harish Chandra and others, (1996)9 SCC 309 and Vice-Chancellor, University of Allahabad and others v. Dr. Anand Prakash Mishra and others, (1997)10 SCC 264 ). 23. In State of Punjab and others v. Renuka Singh and others, (1994)1 SCC 175 , dealing with a similar situation, the Honble apex Court observed as under : "we fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations. " 24. Similarly, in Karnataka State Road Transport Corporation v. Ashrafulla Khan and others, 2002 (1) JCLR 274 (All) : JT 2002 (2) SC 113, the Honble apex Court has held as under : "the High Court under Article 226 of the Constitution is required to enforce the rule of law and not pass order or direction which is contrary to what has been injected by law. " 25. Shri Dube, learned Counsel appearing for the petitioner had produced before us some orders passed by this Court earlier, while in a similar situation, direction to the authorities concerned had been issued to consider the representation made by the existing operators. In view thereof it has been submitted by Shri Dube that petitioner cannot be treated discriminately and he is entitled for similar relief. In view thereof it has been submitted by Shri Dube that petitioner cannot be treated discriminately and he is entitled for similar relief. We do not find any substance in the submission made by Shri Dube for the reason that the Constitution of India does not contemplate the doctrine of negative equality. Article 14 is not meant to perpetuate an illegality. Therefore, we are not bound to repeat the wrong action done by us earlier. This view stands fortified by the judgments of the Honble apex Court e. g. , Snehprabha v. State of U. P. and others, 1996 (1) JCLR 323 (SC) : AIR 1996 SC 540 ; Secretary, Jaipur Development Authority v. Daulat Mal Jain, 1998 (2) JCLR 129 (SC) : (1997)1 SCC 35 ; State of Haryana v. Ram Kumar Maan, (1997)3 SCC 321 and M/s. Faridabad Ct. Scan Centre v. Director General, Health Services and others, (1997)7 SCC 752 . 26. In Finance Commissioner (Revenue) v. Gulab Chandra and another, 2001 AIR SCW 4774, the Honble apex Court rejected the contention that as other similarly situated persons had been retained in service, the petitioner could not have been discharged during the period of probation observing that if no action has been taken in a similar situation against similarly situated persons, it did not confer any legal right upon the petitioner therein. 27. In Jalandhar Improvement Trust v. Sampuran Singh, AIR 1999 SC 1347 and Union of India and others v. Rakesh Kumar, 2001 AIR SCW 1458, the Honble Supreme Court held that Court cannot issue direction that some mistake be perpetuated on the ground of discrimination or hardship. 28. Any action/order contrary to law does not confer any right upon any person for similar treatment. (Vide State of Punjab and others v. Dr. Rajeev Sarwal, (1999)9 SCC 240 ; Yogesh Kumar and others v. Government of NCT, Delhi and others, 2003 (3) SCC 548 and Union of India and another v. International Trading Company and another, (2003)5 SCC 437 ). 29. Thus in view of the above, it becomes crystal clear that a wrong action taken or order passed cannot be perpetuated on the ground of equal treatment or hardship. The contention in this behalf raised by Shri Dube is preposterous and hence rejected. 30. 29. Thus in view of the above, it becomes crystal clear that a wrong action taken or order passed cannot be perpetuated on the ground of equal treatment or hardship. The contention in this behalf raised by Shri Dube is preposterous and hence rejected. 30. As in the instant case, issuing a direction to the Regional Transport Authority to consider the representation would amount to reviving the provisions of Section 47 of the Act 1939, and as no provision analogous thereto has been incorporated in the Act 1988, such a direction is not warranted by the Court at all. Thus, the petition is liable to be dismissed. 31. In case temporary permits are successively granted by the Regional Transport Authority and petitioner feels aggrieved, he may file a revision under Section 90 of the Act 1988 before the State Transport Appellate Tribunal and it is needless to say that it would be dealt with in accordance with law. 32. With these observations, petition stands dismissed. Petition dismissed. .