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2009 DIGILAW 2678 (ALL)

SAFINA BANO v. STATE OF U. P.

2009-07-28

SUNIL AMBWANI, VIRENDRA SINGH

body2009
JUDGMENT By the Court.—Heard Shri R.N. Singh, Senior Advocate assisted by Shri G.K. Malviya for the petitioner. Learned Standing Counsel appears for respondent Nos. 1 to 4. Shri D.K. Agrawal appears for Smt. Neetu Sood-respondent No. 5. 2. By this writ petition the petitioner holding a permanent stage carriage permit on the inter-State non-notified route:- ‘Jhansi-Khajuraho via Mauranipur-Navgaon-Chattarpur-Bamitha’, a part of which falls in the State of U.P. and the other part in the State of Madhya Pradesh, has prayed for direction to quash the order dated 26.2.2009 passed by the Secretary, State Transport Authority, U.P. Lucknow by which he has countersigned the temporary permit of Smt. Neetu Sood-respondent No. 5. He has also prayed for directions to restrain the respondent No. 5 from plying her vehicle on the route in question on the ground that earlier the STA had refused to countersign her temporary permit, on the ground that there was no provision in the reciprocal agreement between the States under Section 88 (4) of the Motor Vehicles Act, 1988, for grant of temporary permits. The time table provided in the temporary permit is also overlapping with the time table of the petitioner’s vehicle affecting his rights, and that as per Clause 4 (iv) of the reciprocal agreement dated 21.11.2006 the time table can be fixed only on mutual agreement of the authorities. 3. The grant of temporary permit to respondent No. 5 has also been challenged on the ground that there is no provision for grant of such temporary permit to private owner of stage carriages. The agreement provides in Clause 5 for grant of temporary permits in case of Kumbh, Ardh Kumbh, Magh Mela and Maiher Fair only to State transport undertaking, as the routes are notified without countersigning in reciprocating State on double point tax basis. Further it is stated that the general concurrence for issue of temporary permits under Clause 9 under Section 88 (7) of the Motor Vehicles Act, 1988 is only for goods carriages and contract carriages (Omni buses and motor cabs) in pursuance to clauses 3.5 and 7 of the agreement, as per the need without requirement of countersignature under Section 88 (1) of the Motor Vehicles Act. 4. 4. Shri R.N. Singh, learned counsel appearing for the petitioner submits that the STA could not have granted and countersigned the temporary permit of respondent No. 5 in violation of Section 88 (3) or (4), and also in contravention of the agreement between the State of U.P. and the State of Madhya Pradesh. The agreement does not provide for grant of temporary permits for stage carriages, which are different vehicles than the Omni buses and motor cabs as explained in T. Govind Raju v. Regional Transport Officer, AIR 1986 AP 7 . There must be a inter-State route, and an agreement providing for grant of temporary permits. The agreement in the present case provides for grant of temporary permits in case of special need of the large fairs such as Kumbh, Ardh Kumb, Magh Mela and Maiher Fair only to the State Transport Undertaking. The reason for such restriction is given in the same Para 5 of the agreement namely that the routes are notified without countersigning in reciprocating State on double point tax basis. Shri R.N. Singh would submit that the Supreme Court in Basant Roadways, AIR 1987 SC 116 deprecated the grant of temporary permits repeatedly. In this case the respondent No. 5 has been granted temporary permits on more than three occasions seriously affecting petitioner’s rights to ply the vehicle on the same route under a valid permanent permit. 5. Shri D.K. Agrawal appearing for the respondent No. 5 submits that the petitioner has no locus standi to maintain the writ petition for the alleged violation of reciprocal agreement dated 21.11.2006. She is neither a signatory nor a party to the agreement. She did not file any objection under Section 88 (5) of the Motor Vehicles Act, 1988 against the draft proposal, and that the grant is under challenge in appeal under Section 89 (1)(a) of the Motor Vehicles Act. The petitioner and her family members have several permits on the inter-State routes and have established monopoly, which is illegal and against the provisions of law. Shri Agrawal submits that the Clauses 3, 4, 7 and 9 of the reciprocal agreement dated 21.11.2006, provides for grant of permits to private operators. Clause 9 refers to Section 87 of the Motor Vehicles Act and gives unlimited powers to State Transport Authority of both the States to issue and countersign temporary permits to private operators. Shri Agrawal submits that the Clauses 3, 4, 7 and 9 of the reciprocal agreement dated 21.11.2006, provides for grant of permits to private operators. Clause 9 refers to Section 87 of the Motor Vehicles Act and gives unlimited powers to State Transport Authority of both the States to issue and countersign temporary permits to private operators. The general concurrence in Clause 9 gives unfettered powers to grant temporary permits. It is stated there are two vacancies of permanent permits out of 6 on the route in question, to which the petitioner has applied and that there is shortage of vehicles on the route causing hardship to the travellers. He has relied upon the open and liberalised policy for grant of stage carriage permits, which does not violate Articles 19 (1)(g) and 14 of the Constitution of India. He has also relied upon the opinions expressed in Mithilesh Garg v. Union of India, AIR 1992 SC 443 ; Surendra Rao v. Regional Transport Authority, Gorakhpur Region, AIR 1992 All 211 and Mohd. Sajid Ansari v. State of U.P., 2006(4) ADJ 273 (DB) in support of his submissions. 6. The Motor Vehicles Act, 1988 provides for open and liberalised policy of grant of permits to the stage carriages. In case of non-notified route falling within two States, Section 88 (4) and (5) of the Act provides for agreement between the States for grant, revocation and suspension of countersignatures of permits. The proviso to Section 88 (4) makes the procedure under Section 80 of the Act, for counter signatures of permits subject to the agreement arrived at between the States and after complying with the requirements of sub-section (5), which also provides for publication of each route or area in the official Gazette and in one or more newspapers. The sub-clause (6) provides that such agreements shall be given effect to, by the State Transport Authority of the State and the Regional Transport Authority concerned. The sub-clause (6) provides that such agreements shall be given effect to, by the State Transport Authority of the State and the Regional Transport Authority concerned. The grant of temporary permit is regulated by sub-section (7) of Section 88 referred to by Shri D.K. Agrawal appearing for the respondent No. 5 is given generally or for particular occasion to the Regional Transport Authority of that other region or to the State Transport Authority of that other State, as the case may be, under the concurrence, which may be shown or subject and which may be subject to and is by way of an exception to sub-section (1) of Section 88 of the Act. 7. The parties have not addressed the Court on any issue with regard to validity of the agreement or its publication in accordance with the provisions of sub-section (5) of Section 88 of the Act. The agreement once signed and notified has to be given effect to by the State Transport Authority of the State and the Regional Transport Authority concerned. In respect of non-notified routes, counter signature has to be governed strictly in accordance with the agreement. 8. We do not find that the agreement notified on November 21st, 2006 provides for grant of temporary permits to stage carriages. The reliance on Clause 3, relates to contract carriage Omni buses and motor cabs and Clause 4 relates to stage carriage permits under Section 72 of the Motor Vehicles Act, 1988. Clause 7 relating to corridor routes. The reference to these clauses are not helpful to the respondent No. 5. Inasmuch as the general concurrence for issue of temporary permits under Clause (9) is confined only to goods carriages and contract carriages (Omni buses and motor cabs) in pursuance of Clauses 3, 5 and 7 of the agreement as per need without requirement of countersignature. The reliance on Clause 5 is also misplaced as temporary permits in case of huge rush of traffic during the famous fairs of Kumbh, Ardh Kumbh, Magh Mela and Maiher fair has been confined only to State transport undertaking, apparently to avoid any conflict of payment of double point tax. 9. The State Transport Tribunal U.P. Lucknow in Revision No. 14 of 2009, Sohail Ahmad v. State Transport Authority and others considered the question of grant of temporary permits under the agreement dated 21.11.2006 and the powers of the countersigning authority. 9. The State Transport Tribunal U.P. Lucknow in Revision No. 14 of 2009, Sohail Ahmad v. State Transport Authority and others considered the question of grant of temporary permits under the agreement dated 21.11.2006 and the powers of the countersigning authority. After referring to the provisions of the agreement the Tribunal referred Nasiruddin v. State Transport Authority, Delhi, AIR 1981 Del 9 ; Janta Motors Pvt. Ltd. v. STA, Delhi, 1984 Supp. SCC 711; A. Venkati Krishnan v. State Transport Authority, Kerala, (2004) 11 SCC 207 ; M/s Basant Roadways v. State Transport Appellate Tribunal, AIR 1987 SC 116 and held that temporary permits issued in favour of Smt. Neetu Sood-respondent No. 5 in this writ petition is beyond the powers and scope of reciprocal agreement, and has also been made in violation of the directions of the Supreme Court in M/s Jagjit Singh Bus Service; M/s Basant Roadways; A. Vishwanathan and National Transport Company cases. The countersigning authority was fully empowered to refuse to countersign on permits in appropriate cases. The Tribunal allowed the revision filed by Shri Sohail Ahmad and held that O.P. No. 4 plying vehicle on the basis of countersignature on her temporary permit will be entitled to ply the vehicle till the making of fresh orders and remanded the matter back to the lower authority with directions that Smt. Neetu Sood-opposite party No. 4 will be entitled to ply her vehicle on the route till passing of fresh order by the road authority on her application for countersignature on temporary permit dated 20.2.2009. 10. On the aforesaid discussion, we find that the agreement dated 21.11.2006 between the State of U.P. and State of M.P. does not provide for issuance of temporary permits on the non notified route to be countersigned by the State transport authority. She is not entitled to ply the vehicle on the basis of such counter signatures. This judgment is, however, without prejudice to her rights to be considered for grant of permanent permit on the route. 11. The writ petition is allowed. The order dated 26.2.2009 passed by the Secretary, State Road Transport Authority, U.P. Lucknow countersigning the temporary permit of respondent No. 5-Smt. Neetu Sood on the subject route is thus quashed. She is restrained from plying the vehicle on the basis of such temporary permit, on the route in question. ————