Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 344 (MP)

Sushil Kumar Maity v. State of M. P.

2015-03-25

ROHIT ARYA

body2015
JUDGMENT : Rohit Arya, J. 1. By this writ petition under Article 226 of the Constitution of India petitioner has challenged orders dated 5/1/2015 and 15/1/2015 passed by respondents no.2 and 3 granting temporary permits to respondents no.4 on Malajkhand to Gondiya interstate route and Saletekari to Malajkhand interdistrict route of Balaghat for one return trip each daily on vehicle No. MP 50-P-0414 on the ground that the same is in violation of the provisions contained in Rule 72 (3) (b) of the M.P. Motor Vehicles Rules, 1994 (hereinafter referred to as 'the Rules of 1994') and contrary to the judgment of this Court in Writ Petition No. 9382/2012 (Sita Devi Mange Vs. State Transport Appellate Tribunal and Others) decided on 11/03/2014 followed in W.P. No. 1756/2014 (Vijay Bajaj vs. State of M.P. and others) decided on 1/5/2014. It is further alleged that respondents no. 2 and 3 while rejecting the objection thereto ignored the aforesaid legal position while granting aforesaid two temporary permits to respondent no.4 on single vehicle fixing the time with narrow margin with the petitioner, who holds permanent stage carriage permit to ply his vehicle on the said route. 2. Sheet anchor of the argument is to the effect that for single vehicle two temporary permits on two separate routes under the garb of new interstate route created Saletekari to Gondiya via Malajkhan; not a specified route in reciprocal agreement, is contrary to law. It is also submitted that the aforesaid grant of permits tantamounts to link permit and is not permissible in view of the judgment of Hon'ble Supreme Court in Ashwani Kumar and another vs. Regional Transport Authority, Bikaner and another, AIR 1999 SC 3888 . 3. Per contra, learned counsel for respondent no.4 submitted that two separate temporary permits by two different authorities on different routes have been granted viz. District Transport Officer/Assistant Secretary, Balaghat has granted temporary permits for the route Malajkhand to Saletekari and Secretary, State Transport Authority has granted temporary permit for the interstate route of Malajkhand to Gondiya under reciprocal agreement. The route Gondiya to Malajkhand is prescribed under the reciprocal agreement and in that regard learned counsel referred to item No. 13 in schedule C appended to the reciprocal agreement on record as Annexure P/4. The route Gondiya to Malajkhand is prescribed under the reciprocal agreement and in that regard learned counsel referred to item No. 13 in schedule C appended to the reciprocal agreement on record as Annexure P/4. It is further submitted that Rule 72 (3) (b) of the Rules of 1994 quoted below does not prohibit grant of two permits on the single vehicle:- "72. Forms of Application For Permits.- (1) XXXXX (2) XXXXXX (3) The application for stage carriage permit or reserved stage carriage permit as required under subsection (1) of Section 70 shall be accompanied by the following documents, namely: (a) XXXXX (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;" The requirement under the aforesaid Rule is only to the effect that the vehicle should be owned by the applicant at the time of making application. There is no dispute that vehicle No. MP-05- P-0414 is owned by respondent no.4, hence, there was no bar for grant of permits referred above, as contended by the counsel for petitioner. It is further submitted that the order dated 12/3/2010 passed by the Single Bench (Hon'ble Shri Justice S.K. Gangele) in Review Petition No. 23/2010 clearly holds that there is no provision in the Motor Vehicles Rules that two permits cannot be covered by a single vehicle. This aforesaid order has also attained finality as SLP (civil) Nos. 20383 and 20384 of 2010 arising from the orders dated 13/11/2009 in Writ Petition No. 3053/2009 and dated 12/3/2010 in Review Petition No. 23/2010 have been dismissed. Orders are on record as Annexures R/1 and R/2. It is also submitted that the aforesaid order has also been relied upon by the Division Bench of this Court (Hon'ble Shri Justice A.K. Shrivastava and Hon'ble Shri Justice Brij Kishore Dube, as Their Lordships then were) in Writ Petition No. 5044/2012 (Mohammad Saleem vs. The Secretary, STA MP, Gwalior and others) and identical point has been decided as referred above. The judgment is on record as Annexure R/3. As regards the contention that the timings allotted to respondent no.4 are very close to the timings of the petitioner, as stated in ground para 6.4, ranging between 10-15 minutes, it is contended that this cannot be a ground for assailing grant of permit. The judgment is on record as Annexure R/3. As regards the contention that the timings allotted to respondent no.4 are very close to the timings of the petitioner, as stated in ground para 6.4, ranging between 10-15 minutes, it is contended that this cannot be a ground for assailing grant of permit. Learned counsel refers to an order of the Division Bench dated 31/3/1993 in MP No. 627/1993, wherein the Division Bench (Hon'ble Shri Justice G.C. Gupta and Hon'ble Shri Justice M.V. Tamaskar, as Their Lordships then were) considering the grievance of the petitioner to the effect that the bus of the respondent will ply 10 minutes before his bus and would, therefore, adversely affect him, held that considering the growing population and consequent increase in the number of travelling public, appellant cannot claim to fulfill that need and, therefore, under such circumstances, even if more than one bus is required to run on the same timing and route, it will not affect anyone but will serve the public interest. Petition was dismissed. Besides, learned counsel referred to the statement of objects and reasons at the time of enactment of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act of 1988') i.e. it consolidates and amends the law relating to motor vehicles and submits that the entire scheme of the Act has undergone a radical change. As a matter of fact, Section 80of the Act of 1988, provides procedure in applying for and granting permits. The Legislature has liberalized the concept and procedure for grant of permits temporary or permanent and an application for permit of any kind may be made any time and the Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of Section 66 of the Act of 1988 shall not ordinarily refuse to grant permit any time made under the Act. It is submitted that the route from Malajkhand to Saletakari is inter-district separate route and route from Malajkhand to Gondiya is an interstate separate route, prescribed in schedule C appended to the reciprocal agreement. The former has been granted by the District Transport Officer and the latter has been granted by the competent authority under the reciprocal agreement. Hence, it is incorrect to say that there is a link permit being granted to the respondent no.4. The former has been granted by the District Transport Officer and the latter has been granted by the competent authority under the reciprocal agreement. Hence, it is incorrect to say that there is a link permit being granted to the respondent no.4. Merely because petitioner is operating on the aforesaid route with permanent transport carriage permit, this by itself cannot be a justification for sustainability of objection filed by the petitioner. That apart, it is submitted that in the judgment referred to by learned counsel for the petitioner dated 11/3/2014 (Sita Devi Mange vs. State Transport Appellate Tribunal and others) in Writ Petition No. 9382/2012 (Hon'ble Shri Justice S.K. Gangele and Hon'ble Shri Justice G.D. Saxena) the Division Bench with the meaning attributed to Rule 72 (3) (b) of the Rules of 1994 that the person not only must be the owner of the vehicle has also defined-if a person files two separate applications for two permits, then he must be the owner of two vehicles, in excess to the plain meaning attributable to Rule 72 (3) (b) of the Rules of 1994 and, therefore, it is not a correct interpretation. It is submitted that the aforesaid provision is clear and unambiguous and it does not attempt of the requirement of two vehicles, as held. That apart, one of the Hon'ble Judges of the Division Bench (supra) [Hon'ble Shri Justice S.K. Gangele] while dismissing Writ Petition No. 3053/2009 and Review Petition No. 23/2010 has held that there is no bar that one vehicle cannot be granted two permits and the same has attained finality in view of dismissal of SLP filed against the same, as referred above. That apart, the order passed by the Division Bench of this Court (Hon'ble Shri Justice A.K. Shrivastava and Hon'ble Shri Justice Brij Kishore Dube, as Their Lordships then were) in Writ Petition No. 5044/2012 dated 30/7/2012 was not brought to the notice of the Division Bench (Hon'ble Shri Justice S.K. Gangele and Hon'ble Shri Justice G.D. Saxena) while deciding Writ Petition No. 9382/2012 vide order dated 11/3/2014. If the Division Bench (Hon'ble Shri Justice S.K. Gangele and Hon'ble Shri Justice G.D. Saxena) was not in agreement with the aforesaid decision of the Division Bench (Hon'ble Shri Justice A.K. Shrivastava and Hon'ble Shri Justice Brij Kishore Dube, as Their Lordships then were), the same ought to have been referred to the Larger Bench in view of Rule 8, Chapter IV of the M.P. High Court Rules, 2008. It is further submitted that, as a matter of fact, the Division Bench judgment dated 30/7/2012 (Hon'ble Shri Justice A.K. Shrivastava and Hon'ble Shri Justice Brij Kishore Dube) is in the line with the orders passed by the Single Bench in Writ Petition No. 3053/2009 and Review Petition No. 23/2010, which withstood judicial scrutiny by the Hon'ble Apex Court, in fact has laid down the correct law. The order passed by the Division Bench in Writ Petition No. 9382/2012 on 11/3/2014 in fact and in effect is not correct law and is per incuriam. With the aforesaid submissions, it is prayed that the writ petition be dismissed. 4. Heard learned counsel for the parties. The controversy in this petition surrounds provisions contained in Rule 72(3) (b) of the Rules of 1994 and the issue involved is as to whether two stage carriage permits can be granted to one motor vehicle of the ownership of a bus operator. The Act of 1988 has been enacted consolidating and amending the law relating to motor vehicles and there is a remarkable departure from the earlier Act particularly in the matter of grant of stage carriage permit. The control, restrictions and regulations in earlier Act are done away with in furtherance of its objects as contained in objects and reasons of the Act inter alia providing simplification of procedure and policy liberalizations for private sector operations in the road transport field regard being had to the fast increase in number of both commercial and personal vehicles in the country with the greater flow of passengers (Emphasis Supplied). Section 80 of the Act of 1988 talks of procedure in applying for and granting permits and inter alia provides that an application for permit of any kind may be made at any time and the prescribed authority shall not ordinarily refuse to grant the permit so applied. Section 80 of the Act of 1988 talks of procedure in applying for and granting permits and inter alia provides that an application for permit of any kind may be made at any time and the prescribed authority shall not ordinarily refuse to grant the permit so applied. Section 68 (3) (ca) of the Act of 1988 provides that the government shall formulate routes for plying the stage carriages. Section 70 provides for application for stage carriage permit and details required to be specified therein. Section 71 provides for procedure of Regional Transport Authority in considering the application for stage carriage permit. Therefore, the scheme underlying the new Act and various provisions contained therein suggest that restrictions, control and regulations provided for in the old repealed Act particularly Sections 48, 50, 51 and 52 in the matter of grant of stage carriage permits on notified routes are done away with. Besides, provisions as regards limitation of time period or cut off date for applying for stage carriage permits, publication of public notices, inviting objections, hearing of objections as regards number of grant of stage carriage permits, number of trips qua the time schedule etc. are also done away with. Now there are no restriction and control either in terms of grant of stage carriage permits or limitation of period in applying for it or number of vehicle plying on the given routes. In this regard it is apposite to refer to the mandate contained in Section 80(1) and 80(2)of the Act of 1988. Section 81 provides for procedure to make an application for permit of any kind at any time. Subsection (2) thereof provides for consideration of application for permit of any kind made at any time under the Act. Conjoint reading of Sections 80(1) and 80 (2) unambiguously provides for consideration of application filed at any time or the application filed at the time of consideration. There is no limit as regards number of applications. Rule 72 provides for forms of application for permits, where-under 72 (3) (b) provides for requirement of the vehicle to have a certificate from the registration authority containing- (i) make, model and seating capacity of the vehicle and (ii) owned by the applicant at the time of making the application. There is no limit as regards number of applications. Rule 72 provides for forms of application for permits, where-under 72 (3) (b) provides for requirement of the vehicle to have a certificate from the registration authority containing- (i) make, model and seating capacity of the vehicle and (ii) owned by the applicant at the time of making the application. The aforementioned twin requirements of Rule 72 (3) (b), in the opinion of this Court, do not restrict or limit only one vehicle for grant of different stage carriage permits. Hence, the contention of learned counsel for the petitioner that on one vehicle only one stage carriage permit can be granted is contrary to the mandate contained in the new Act of 1988 as well as provisions contained therein and Rule of 1994 particularly Rule 72 (3) (b). This Court respectfully agrees with the Division Bench judgment of this Court (Hon'ble Shri Justice A.K. Shrivastava and Hon'ble Shri Justice Brij Kishore Dube) in Writ Petition No. 5044/2012 dated 30/7/2012, which bears the reference of order passed by learned Single Judge in Writ Petition No. 3053/2009 and Review Petition No. 23/2010, which had withstood judicial scrutiny of the Hon'ble Supreme Court in SLP (Civil) Nos. 20383 and 20384 of 2010. The permits granted to respondent no.4 on Malajkhand to Gondiya interstate route and on Saletekari to Malajkhand interdistrict route of Balaghat for one return trip each daily on vehicle No. MP 50-P-0414 are not link permits and have been granted by the competent authority. Accordingly, writ petition sans merits and is hereby dismissed.