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2013 DIGILAW 1260 (MP)

Padam Chand Gupta v. State Transport Authority

2013-10-21

M.K.MUDGAL, S.K.GANGELE

body2013
JUDGMENT S.K. GANGELE, J. The petitioners have filed this petition against the order dated 4-7-2013 (Annexure P/1) passed by the State Transport Appellate Tribunal, Gwalior and the order dated 12-11-2012 passed by the Regional Transport Authority. 2. Number of applicants applied for grant of permanent permit of a route Gwalior to Jhansi via Dabra, Datia of one return trip daily. It is an inter-State route and is a part of a reciprocal agreement between the State of M.P. and U.P. Earlier the route was part of a scheme. After de-notification of the scheme, the route was opened for private operators. Total 45 applications were received by the Regional Transport Authority. 16 persons including the petitioners made their objections. The respondent No. 2 was granted the permanent permit of the route with one return trip. The petitioners also have the permanent permit of the route of different timing. 3. Learned counsel for the petitioners has submitted that the State Transport Appellate Tribunal did not consider the fact that the respondent No. 2 had been given undue benefit in fixing the time because the respondent No. 2 has been granted departure time of 1.30 p.m. from Gwalior and arrival at Jhansi on 4.30 p.m. and thereafter departure time of respondent No. 2 from Jhansi is 5.30 p.m. and arrival at Gwalior at 8.30 p.m. The respondent No. 2 has been granted time ahead of the petitioner, however the respondent No. 2 reaches Jhansi after the petitioner, hence it is arbitrary. It is further submitted that the vehicle, which was covered under the permit granted to the respondent No. 2 was not available on the date of consideration of the permit because at that time the vehicle was covered under another permit No. 558/09 Gwalior to Bhind route, hence the order of grant of permit in favour of respondent No. 2 is contrary to law. 4. Learned counsel appearing on behalf of the respondent No. 2 has submitted that the vehicle No. M.P. 07/P/592 Model 2011 had been leased out to one Chandra Prakash Gour for operation from Gwalior to Bhind route and the aforesaid vehicle was not a spare vehicle on 29-6-2012 as well as on 12-11-2012 on the date of grant of permit. 5. In regard to question of grant of timings to respondent No. 2, he has been granted following timings by RTA :- (Vernacular matter omitted......Ed.) 6. 5. In regard to question of grant of timings to respondent No. 2, he has been granted following timings by RTA :- (Vernacular matter omitted......Ed.) 6. Petitioner No. 1 was granted timing of departure from Gwalior at 13.50 and arrival at Jhansi at 4.25 p.m. Similarly petitioner No. 2 was granted timing of return from Jhansi 5.40 p.m. and arrival at Gwalior at 8.15 p.m. 7. From the aforesaid facts it is clear that the timings of the petitioner No. 1 from Gwalior is 13.50 and arrival at Jhansi is 4.25 p.m. and timings of respondent No. 2 is 13.30 from Gwalior and arrival at Jhansi is 4.30 p.m. Similarly from Jhansi departure is 5.30 p.m. and arrival at Gwalior is 8.30 p.m. and petitioner No. 2 reaches at Gwalior at 8.15 p.m. and his departure time from Jhansi is 5.40 p.m. It means that the petitioner No. 2 reaches Gwalior before respondent No. 2 and his departure from Jhansi is 5.40 p.m. and departure of respondent No. 2 from Jhansi is 5.30 p.m. before the petitioner No. 2 but he reaches Gwalior after the petitioner No. 2 at 8.30 p.m. Similarly departure time of petitioner No. 1 from Gwalior is 13.50 and he reaches Jhansi at 4.25 p.m. but departure time of respondent No. 2 from Gwalior is 13.30 before the petitioner No. 1 and his arrival at Jhansi is 4.30 p.m. after the petitioner No. 1. It means that the respondent No. 2 has been given unfair advantage in comparison to the petitioners. Halt of the petitioners and respondent No. 2 are the same and their stoppage are also same. 8. Rule 72(2) of the M.P. Motor Vehicles Rules, 1994 gives power to the Regional Transport Authority to approve the time schedule of the vehicles. It is obligatory on the part of the Regional Transport Authority to exercise his power reasonably so all the persons be given same benefit and some persons be not given undue benefit. In the present case, in our opinion, the Regional Transport Authority has not applied his mind properly in fixing the timings and time table. It has given undue advantage to the respondent No. 2 in fixing the time, hence, the act of respondent No. 2 is illegal and arbitrary. 9. The next question is in regard to availability of the vehicle at the time of grant of permit. It has given undue advantage to the respondent No. 2 in fixing the time, hence, the act of respondent No. 2 is illegal and arbitrary. 9. The next question is in regard to availability of the vehicle at the time of grant of permit. The petitioners have specifically pleaded that the vehicle was not available to be covered at the time of grant of permit. A certificate issued by the Regional Transport Authority, Morena has been filed as Annexure P/8 along with the petition. In the aforesaid letter, it is mentioned that the vehicle No. MP 07 P0592 Model 2011 of the ownership of Harishankar Singh, the respondent No. 2, was covered under a permit No. 5588/Stage:2009, route-Gealior to Bhind. The vehicle was under operation on the basis of lease agreement from 30-5-2011 to 31-8-2012. The vehicle was released from the aforesaid permit on 31-8-2012. The tax was also deposited up to 31-8-2012. 10. In the return filed by the respondent No. 2, it is pleaded that the vehicle No. MP 07 P0592 Model 2011 is of the ownership of respondent No. 2 and it was granted on lease for another bus operator from 1-6-2011 to 31-5-2012, hence, it was available on the date of hearing i.e. 29-6-2012. It is further pleaded that letter of Secretary, RTA, Chambal Division, Morena dated 19-9-2012 (Annexure P/8) is based on presumptions. Date of 31-8-2012 is mentioned by the authority on the basis of application filed by the permit holder in regard to entry of deletion, however, there is no evidence on record that the said vehicle was in operation up to 31-8-2012. 11. From the pleadings of the respondent No. 2, it is clear that the respondent No. 2 has not denied the fact that the tax of the vehicle was paid up to 31-8-2012. Apart from this, the permit was surrendered on 31-8-2012 and thereafter the vehicle was spared. It means that the vehicle was not available on the date of hearing of grant of permanent permit. 12. State Government has made rules named as Madhya Pradesh Motor Vehicles Rules, 1994 (hereinafter referred Rules of 1994) in exercise of powers conferred by Sections 28, 38, 65, 95, 96, 107, 111, 138, 159, 176, 211 and 213 of the Motor Vehicles Act, 1988 (No. 59 of 1988). Rule 72 of the Rules of 1994 prescribes forms of application for permit. Rule 72 of the Rules of 1994 prescribes forms of application for permit. In accordance with the aforesaid Rule 72(1) of the Rules of 1994, every application for grant of permit in respect of any transport vehicle shall be in one of the following forms and in accordance with the aforesaid Rule 72(3)(a) in respect of stage carriage permit, it would be in the form M.P.M.V.R. 42 (SCPA). Rule 72(3)(b) of the Rules of 1994 prescribes that an application of stage carriage permit shall be accompanied by certain documents and one of the condition is of certificate of registering authority in regard to ownership of vehicle of the applicant. Relevant rule is as under :- (b) “certificate from Registering Authority containing make, model and seating capacity of the vehicles owned by the applicant at the time of making the application.” 13. Appropriate form M.P.M.V.R. 42 (S.C.P.A.) has also been prescribed in accordance with rule, which is part VI of the Rules of 1994. Clause 8 of the form is in regard to details of the vehicle which is to be offered to operate on the route applied for : 8. Details of the vehicle offered to operate on the route applied for :- Vehicle No........... Model................. Make............. Seating Capacity.................. (Proof to be enclosed). There is also provision of reserved vehicle. 14. From the aforesaid statutory provisions, it is clear that an applicant has to submit details of the vehicle, which was offered by him to operate on the route and he must be the owner of the vehicle at the time of making application which is the requirement of Rule 72(3)(b) of the Rules of 1994 as mentioned above in the order. 15. At the time of making an application the respondent No. 2 had leased out the vehicle to come other person. 16. The question that whether an application for stage carriage permit could be rejected on the ground that the particulars of the vehicle being used for the services were not mentioned at the time of submitting the application has been considered by the Full Bench of Kerala High Court in E. L. Narayanan v. R.T.A., Trichur, reported in AIR 1980 Kerala 115. Full Bench has held as under :- “An application for grant of a stage carriage permit cannot be treated as invalid merely on the ground that it does not contain particulars of the vehicle proposed to be used for the service nor can the applicant be disqualified or excluded from consideration on the said ground. If all other qualifications are equal as between two applicants, one of whom had furnished in his application the particulars of his vehicle and the other hand furnished such particulars only at a later stage before the matter was taken up for consideration by the Regional/State Transport Authority and the vehicle offered by the latter is found to be of a later model and better quality (providing better comforts for the passengers) than the vehicle offered by the former, the Regional/State Transport Authority will be perfectly justified in taking the view that it will be in the public interest to grant the permit to the applicant who has offered the better vehicle. However, if in such a case the vehicles offered by both the applicants are found to be substantially of the same type, quality, model etc. and if in respect of other matters both the applicants are equally qualified it will be open to the Regional/State Transport Authority in its discretion to prefer for the grant the applicant who had furnished the particulars of his vehicle in the application itself treating the said circumstance as a ground for tilting the balance as between the two persons whose qualifications are equal in all other respects.” 17. Hon’ble Supreme Court in the case of Maharashtra State Road Transport Corporation v. Mangruloir Joint Motor Service Co. (P) Ltd., reported in AIR 1971 SC 1804 has held as under in this regard :- “The High Court was in error on the second question in holding that the Regional Transport Authority would have to consider the respective qualifications of the applicants as on the date of their applications and not as on the date of the actual consideration by the applications for the grant of permit.” 18. Hon’ble Supreme Court in the case of Esskey Roadways (Firm) v. Anandha-krishnan Bus Service, reported in 1994 (6) SCC 71 has held as under in regard to consideration of relevant date on which the respective claims of the candidates have to be considered for grant of permit :- “3. Hon’ble Supreme Court in the case of Esskey Roadways (Firm) v. Anandha-krishnan Bus Service, reported in 1994 (6) SCC 71 has held as under in regard to consideration of relevant date on which the respective claims of the candidates have to be considered for grant of permit :- “3. Another circumstance arose in Dhani Devi v. Sant Bihari case ( AIR 1970 SC 759 ) was that when one of the applicants before the consideration died and his LRs. were brought on record. When it was questioned, this Court held that the LRs. are entitled to be considered as inhering the estate of the deceased applicant for grant of permit. In A.S. Jalaluddin v. Balasubramania Bus Service (P) Ltd. the question arose that whether the applicant who secured the residential qualification by establishing a branch office at one of the terminus of the route would be considered eligible as on the date of the consideration. This Court held that he is entitled. In view of these considerations, it must be held that the date of consideration is the relevant date for the purpose of considering the eligibility to grant the required marks under Section 46 of Act 4 of 1939. This law being in operation from 1970, we do not think that it requires any reconsideration by this Court by a larger Bench. Accordingly, we hold that the date of consideration is the relevant date on which the respective claims of the candidates have to be considered for award of the marks for grant of permit. It is made clear that this declaration of law is confined to and peculiar of the statutory operation under Section 46 of Act 5 of 1958.” 19. It is clear from the above judgments that an applicant has to fulfil qualification required in the rule and in regard to availability of the vehicle at the time of passing of the order by the Regional Transport Authority. 20. Respondent No. 2 had leased out his vehicle, which was proposed to be plied by him on the route in favour of the another person and it was covered by another permit up to 31-8-2012, thereafter it was released when the permit was surrendered before the RTA. The tax of the vehicle was also paid up to 31-8-2012. 20. Respondent No. 2 had leased out his vehicle, which was proposed to be plied by him on the route in favour of the another person and it was covered by another permit up to 31-8-2012, thereafter it was released when the permit was surrendered before the RTA. The tax of the vehicle was also paid up to 31-8-2012. Hence, in our opinion, the respondent No. 2 did not fulfil the criteria having a vehicle at the time of passing of the order by R.T.A. for grant of permanent permit, hence, he was not eligible to receive the permit. 21. The aforesaid facts and legal position has not been considered by the STAT in the impugned order. Apart from this, respondent No. 2 has been favoured by granting unfair timings. Even though the case could be remanded back to the RTA, to fix the timings, however, we have held that the respondent No. 2 was not eligible for grant of permit because he did not have the vehicle, which could be pressed in service or plied on the route at the time of passing of the order by the RTA. It is a necessary requirement in accordance with the rules and statutory form. 22. Learned counsel for the respondent No. 2 relied on the judgment of this Court in Balwant Rao v. State Transport Appellate Authority reported in Short Note 59 of 1971 MPLJ 34. 23. Facts of the case have not been mentioned in the aforesaid decision, hence, we could not take the assistance from the aforesaid judgment. 24. Counsel for the respondent No. 2 also relied on the judgment in the case of Smt. Aysha v. Regional Transport Authority, reported in AIR 2006 Kerala 360 and some unreported judgments. 25. The aforesaid judgments cited by the learned counsel for respondent No. 2 do not favour the case of respondent No. 2, hence they are distinguishable. 26. Consequently, the petition filed by the petitioners is allowed. Grant of permanent permit in favour of respondent No. 2 by RTA of route Gwalior to Jhansi via Dabra, Datia of one return trip is hereby quashed. The impugned order dated 4-7-2013 (Annexure P/1) passed by the State Transport Appellate Tribunal, Gwalior is hereby quashed. No order as to costs. Petition allowed.