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Madhya Pradesh High Court · body

2015 DIGILAW 47 (MP)

Pawan Arora v. State of M. P.

2015-01-12

ROHIT ARYA

body2015
ORDER 1. As common questions involved in Writ Petitions No. 8077/14, 8152/14, 154/15, 156/15, 158/15, 160/15 and 162/15, they are heard together and decided by this common order. However, for the sake of convenience facts in Writ Petition No.8077/14 have been dealt with. 2. By this petition under Article 226 of the Constitution of India, petitioner a citizen of India and a stage carriage operator has questioned legality, validity and propriety of impugned condition in the notice dated 15.12.2014 (Annexure P-1) passed by the respondent No.2, Secretary, State Transport Authority, M.P., Gwalior [in the purported compliance of order dated 26.11.2014 in Writ Petition No.8678/13 (PIL) (Kashmirilal v. State of M.P. and others), by a Division Bench of this Court, particularly condition No.3 whereunder an applicant aspiring for grant of permanent permit as stage carriage operator is required to submit the documents on a cut off date in respect of the pending applications for consideration of the application fixed as 27.12.2014 which has been further extended upto 29.12.2014 by respondents’/State vide agenda No.6534/Reader/STA/2014 dated 22.12.2014 for the purpose of complying with the requirements of rule 72(3) of the Madhya Pradesh Motor Vehicles Rules, 1994 in respect of the applications filed in the years 2008, 2009 and 2011 and also fresh applications. It has also been specified that neither documents nor applications filed after 29.12.2014 shall be considered on the date of consideration of applications by State Transport Authority (STA) scheduled on 13.1.2015 and 14.1.2015, however, it appears as is informed at Bar, the schedule date of meeting by STA has been revised and now it is scheduled to be held on 19.1.2015, on following grounds : (i) section 80(1) of the Motor Vehicles Act, 1988 deals with the procedure for applying and granting permits but does not prescribe for any time limit in the matter of submission of applications as it provides that an application for permit of any kind may be made at any time and sub-section (2) thereof prescribes that the Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 80 shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Motor Vehicles Act, 1988; (ii) Hon’ble Supreme Court while holding the constitutional validity of the aforesaid section 80 and section 88 of the Motor Vehicles Act, 1988 in Mithilesh Garg v. Union of India and others [ AIR 1992 SC 443 ], held that a bare perusal of the relevant comparative provisions of the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 (referred to as the Act of 1988) makes it clear that grant of permits under the Act of 1988 has been liberalised and an intended operator can get a permit for asking irrespective of th number of operators already in the field. Earlier under section 57 read with section 47(1) of the old Act, an application for a stage carriage permit was to be published and kept for inspection in the office of the Regional Transport Authority so that the existing operators could file representations/objections in respect of the same. Thereafter,the application, along with objections, was required to be decided in a quasi-judicial manner. Besides, section 47(3) of the old Act further permitted the imposition of limit on the grant of permits in any region, area or on a particular route. Therefore, the grant of permit under the old Act was controlled and regulated by statutory provisions. Thereafter,the application, along with objections, was required to be decided in a quasi-judicial manner. Besides, section 47(3) of the old Act further permitted the imposition of limit on the grant of permits in any region, area or on a particular route. Therefore, the grant of permit under the old Act was controlled and regulated by statutory provisions. But under the Act of 1988, the aforesaid features have been completely effaced as contained under sections 47 and 57 of the old Act and has been completely done away with. Neither there is any provision to file objections by existing operators nor there is provision for limiting on the number of permits to be issued as there is no provision corresponding to sections 47 and 57 of the old Act in the new Act. The apex Court while dealing with the constitutional validity of the provisions of Act of 1988 has also referred to the Statement of Objects and Reasons for the purpose of enactment of the Act of 1988 and has held that under the new Act, the process of grant of permits as contemplated under section 71(1) of the Act of 1988 has been liberalised. The RTA while considering an application for stage carriage permit shall have regard to the objects of the Act. The apex Court while bestowing thoughtful consideration to the mandate contained in section 80(1) and 80(2) of the Act of 1988, which is the harbinger of liberalisation, provides that a Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. (iii) By citing the judgment of Hon’ble apex Court in the case of Esskey Roadways (Firm) v. Anandhakrishnan Bus Service [ (1994)6 SCC 71 ], learned counsel submits that there cannot be any cut off date for submissions of documents in respect of the pending applications and the new applications. It is submitted that Hon’ble apex Court held 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 submitted that Hon’ble apex Court held 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. Aforesaid judgment has been followed by a learned single Judge of this Court in Ganesh Prasad Madan v. State Transport Appellate Tribunal [ 2008(3) JLJ 343 = 2008(4) MPLJ 184 ], and subsequently, a Division Bench of this Court in Padam Chand Gupta and another v. State Transport Authority and another [ 2014(2) JLJ 162 =2014(1) MPLJ 124], held in paragraph 19 as under : “It is clear from the above judgments that an applicant has to fulfil qualification required in the rules and in regard to availability of the vehicle at the time of passing of the order by the Regional Transport Authority.” (iv) in the absence of any provision under the Act of 1988 either for publication of application for general public and/or for inviting objections on such applications by the existing operator or others, there is no justification for publication of the application so filed or documents so annexed with the pending applications as provided in the impugned notice (Annexure P-1) and Annexure R-3 calling upon the objectors to file the objections upto 6.1.2015. As such, incorporation of the aforesaid conditions are contrary to the provisions of the Act of 1988 and the judgment of Hon’ble apex Court in the case of Mithilesh Garg (supra); (v) as a matter of fact, there is no provision under the new Act of 1988 or the Rules framed thereunder prescribing any procedure for consideration of applications for grant of permit of any kind. Respondent/State also admits the same in paragraph 3.3 of the counter-affidavit. In the past from the year 1997 upto 15.10.2014 in various scheduled meetings of STA for consideration of grant of permits new applications and the documents in the pending applications have been accepted on the day of the meeting. However, in the selfacclaimed resolution No.114/1997 dated 21.3.1997 annexed with the counteraffidavit as Annexure R-2 which is said to have laid down a procedure, has never been acted upon and the same was not in conformity with the provisions of Act of 1988. However, in the selfacclaimed resolution No.114/1997 dated 21.3.1997 annexed with the counteraffidavit as Annexure R-2 which is said to have laid down a procedure, has never been acted upon and the same was not in conformity with the provisions of Act of 1988. Petitioner has also brought on record, copies of orders of STA dated 24.11.2014 for grant of permits to the routes from Sidhi to Banaras, dated 15.12.2014 from Shahdol to Allahabad and dated 15.12.2014 from Bhind to Agra to submit that in the aforesaid scheduled meetings, there was no cut off date for filing the documents and the applications. The rationale behind enactment of Act of 1988, particularly, in the context of consideration of grant of stage carriage permits is well reflected in the Statement of Objects and Reasons. The relevant paragraph thereof quoted below : “A Working Group was, therefore, constituted in January, 1984 to review all the provisions of the Motor Vehicles Act, 1939, and to submit draft proposals for a comprehensive legislation to replace the existing Act. This Working Group took into account the suggestions and recommendations earlier made by various bodies and institutions like Central Institute of Road Transport, Automative Research Association of India, and other transport organizations including the manufacturers and the general public. Besides, obtaining comments of State Governments on the recommendations of the Working Group, these were discussed in a specially convened meeting of Transport Ministers of all States and Union Territories. Besides, obtaining comments of State Governments on the recommendations of the Working Group, these were discussed in a specially convened meeting of Transport Ministers of all States and Union Territories. Some of the more important modifications so suggested related for taking care of -- (a) the fast increasing number of both commercial vehicles and personal vehicles in the country; (b) the need for encouraging adoption of higher technology in automative sector; (c) the greater flow of passenger and freight with the least impediments so that islands of isolations are not created leading to regional or local imbalances; (d) concern for road safety standards, and pollution control measures, standards for transport hazardous and explosive materials; (e) simplification of procedure and policy liberalizations for private sector operations in the road transport field; and (f) need for effective ways of tracking down traffic offenders.” (Emphasis supplied) (vi) with simplification of procedure and liberalization policy for private sector operators in the road transport field suggests that controls and restrictions in the matter of regulation of grant of stage carriage permits have been done away with and have no place in the new Act of 1988, instead the thrust is for qualitative improvement in providing public transport facilities to the public at large which can be achieved only by determination of competitive claims of stage carriage operators, on the relevant date of consideration of respective applications promoting healthy competition amongst the applicants aspiring for stage carriage permits; (vii) the impugned notice and the stipulations as contained therein besides being contrary to the Act of 1988 and the judgment of Hon’ble apex Court in the case of Mithilesh Garg (supra), even otherwise is totally arbitrary and only to defeat the legitimate claims of the petitioner for grant of stage carriage permit inasmuch as, fresh applications with latest model vehicles etc., are required to be submitted upto 20.12.2014 and the documents therefor, the time was granted upto 27.12.2014. However, in respect of the applications filed earlier, it is not practically possible to provide latest model vehicles within 5 days and even remotely not possible to file the documents of new model vehicles as after purchasing new chasis, it is common knowledge that at least it will take 30 days minimum for completing the vehicle whereas new model vehicles can be procured for which time ought to have been allowed for providing the best facilities to the public at large. As such, denial thereof is violative of Articles 14 and 19(1)(g) of the Constitution of India. 3. It is submitted that such restrictions imposed in the impugned notices by the respondent/State as regards cut off date for submission of documents in respect of the pending applications, filing fresh applications publication of applications in public notice boards, inviting objections thereupon, in fact and in effect, before the relevant date of consideration of applications besides being in violation of the provisions of the Act of 1988 and the Rules framed thereunder, contrary to the judgment of the Hon’ble apex Court in the case of Mithilesh Garg (supra), and also, violative of Articles 14 and 19(1)(g) of the Constitution of India. Hence, unsustainable in the eye of law. 4. Per contra, the respondent/State in the counter-affidavit has laid emphasis on aforesaid exercise of inviting applications or permitting to file the documents in connection with the pending applications upto date fixed thereunder, in the light of the order passed by a Division Bench of this Court in Writ Petition No.8678/2013(PIL) (supra) as for several years pending applications were not considered due to controversy as regards issuance of permanent stage carriage permit and countersignature of State of Uttar Pradesh under the bipartite agreement which stood settled by this Court in the aforesaid order. It is submitted that for fulfilment of requirements of rule 72(3) of the Madhya Pradesh Motor Vehicles Rules, 1994, (hereinafter referred to as the “Rules, 1994”) sufficient time has been provided to the petitioners to file the applications or documents in support of the pending applications for grant of permits in respect of the routes specified in schedule B of the agreement dated 21.11.2006 between the State of Uttar Pradesh and the State of Madhya Pradesh. True it is that, there is no statutory procedure prescribed under the Act of 1988 for grant of permit but the STA is competent to adopt a procedure under Resolution No.114/1997 dated 21.3.1997 (Annexure R-2) and based whereupon, notice has been issued providing cut off date for filing of the applications and the documents in the pending applications, etc., by the aspiring applicants. 5. In paragraph 3.7 of the counteraffidavit, it is submitted by respondents that besides opportunity to file the applications and documents by the applicants, date has also been fixed as 6.1.2015 inviting objections on the applications filed for grant of permits on the fixed date. It is further submitted that under section 70 of the Act of 1988, applications have to be submitted alongwith relevant documents and the details whereof have been provided under rule 72(3) of Rules, 1994. With the aforesaid, it is submitted that the respondent/STA is competent to regulate the procedure for consideration of applications and grant of stage carriage permits. 6. The respondent/State further submits that merely words used in sections 80(1) and 80(2) of the Act of 1988 that an application for permit of any kind may be made at any time cannot be construed to assert that the authorities have no power to provide for cut off date for consideration of fresh applications and the documents related thereto in the pending applications to be considered on a future date by the competent Transport Authority. There is no question of violation of statutory right or fundamental rights of the petitioner under Articles 14 and 19(1)(g) of the Constitution of India. 7. There is also an application, I.A.No.94/2015 filed by Prayag Narayan and others for intervention filed by certain operators supporting the stand of the respondent/State. 8. Heard counsel for the parties. 9. In the opinion of this Court, following questions emerge for determination : “(i) Whether the provisions of Act of 1988 and the Rules, 1994 framed thereunder empower the concerned authority to provide for cut off date for filing of documents in relation to pending applications and the new applications on or before a date fixed for consideration of such applications, on a date to be fixed in the scheduled meeting of STA for grant of permit? (ii) Whether the applications so filed are required to be published for inviting objections thereto? (ii) Whether the applications so filed are required to be published for inviting objections thereto? (iii)Whether the scope, ambit, limit and the extent of mandate contained in section 80(1) and 80(2) of the Act of 1988 in the light of the judgment of the Hon’ble apex Court in the case of Mithilesh Garg (supra), and the subsequent judgments read with clause (e) of the Statement of Objects and Reasons referred to hereinabove provided for control and restrictions, i.e., provision for cut off date of filing of the application, more so, in the teeth of conscious omission of provisions as contained in section 57 of the Act of 1939 in the new Act of 1988? (iv) Whether complaint of the petitioners violation of fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India are justified?” 10. Before addressing upon the aforesaid questions,it is considered apposite to refer to certain provisions of the Act, 1939 and the Act of 1988. 11. Chapter IV dealt with Control of Transport Vehicles whereunder section 46 prescribes that an application for a permit to use a motor vehicle as a stage carriage permit. Section 47 provided for procedure to be followed by RTA in considering the applications for stage carriage permits. Section 48 dealt with the power of RTA to restrict the number of stage carriages and impose conditions on stage carriage permits. Section 49 dealt with contract carriage permits. Sections 50, 51 and 52 dealt with procedure of RTA in considering the application for contract carriage permit, power to restrict the number of contract carriage and impose conditions on contract carriage permits and application for private carrier’s permit. Section 53 provided procedure to be followed by RTA. Section 54 dealt with applications for public carrier’s permit. Sections 55 and 56 dealt with regulations thereof. Section 57 dealt with procedure for grant of permits for the purpose of stage carriage permit. Section 57(2) provided that an application shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the RTA appoints dates for the receipt of such applications, or such dates. Sub-section (3) further provided that on receipt of an application for stage carriage permits ... Section 57(2) provided that an application shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the RTA appoints dates for the receipt of such applications, or such dates. Sub-section (3) further provided that on receipt of an application for stage carriage permits ... the RTA shall make the application available for inspection at the office of Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date,not being less than thirty days from such publication, on which, and the time and place at which, the application and any representations received will be considered. Sub-section (5) provided for manner to dealt with such representation filed under sub-section (3) and the RTA to dispose of the same at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative. As such, (i) detailed procedure was prescribed a regards the period and the cut off date for the purpose of filing an application for grant of permit; (ii) publication of such application as stipulated inviting objections; (iii) period of filing the objections and (iv) date fixed for consideration of objections and disposal thereof; a quasijudicial procedure. 12. Under the Act of 1988, the aforesaid provisions are done away with. There are no such similar provisions under the new Act. The Statement of Objects and Reasons of the Act of 1988 shows that purpose of bringing the new Act was to liberalize the grant of permits with the objective of simplification for procedure and policy liberalizations for private sector operations in the road transport filed. In the aforesaid background for bringing into the new Act of 1988, the provisions contained in section 80(1) and 80(2) of the Act of 1988 assumes importance in the context of period/time for filing the applications for grant of permit and consideration of such applications. Section 80(1) provides for procedure to make an application for a permit of any kind at any time. Sub-section (2) thereof provides for consideration of applications for permit of any kind made at any time under the Act. Section 80(1) provides for procedure to make an application for a permit of any kind at any time. Sub-section (2) thereof provides for consideration of applications for permit of any kind made at any time under the Act. In the opinion of this Court, a conjoint reading of sections 80(1) and 80(2) of the Act of 1988 unambiguously provides for consideration of application filed at any time or at the time of consideration of the application. There is no provision prescribing cut off date for submission of applications, publication of applications inviting objections, consideration of such objections on a fixed date, at a particular place and time and thereafter grant the permit in a manner of quasi-judicial enquiry as contemplated under section 57 of the old Act. Prescription of cut off date for filing of the applications and documents in the pending applications, in the opinion of this Court is not in accordance with the mandate contained in sections 80(1) and 80(2) of the Act of 1988 and is in excess of the authority of law. Likewise, for want of the specific provision in the Act of 1988 for publication of the application on a notice board, inviting objections and decide the same in a quasi-judicial manner, the provision for publication of the application and inviting objections in the impugned agenda No.6632/Reader/STA/14 dated 30.12.2014, Annexure R-3 also suffers from the vice of being excess of authority. Both the impugned acts; i.e., fixing cut off date for submission of documents and applications as well as inviting objections are ultra vires not only of the provisions of sections 80(1) and 80(2) of the Act of 1988 but also the Act of 1988 itself. 13. The Hon’ble apex Court while dealing with the constitutional validity of sections 80 and 88 of the Act of 1988 had undertaken critical analysis of the provisions of the old Act, 1939 and the new Act of 1988 and by detailed study of Statements of Objects and Reasons of the Act has held that the provisions as contained in section 80(1) and 80(2) of the Act are constitutionally valid provisions in paragraphs 5 and 6 of the judgments. Besides, a Division Bench of this Court in Padam Chand Gupta and another (supra), relying on the judgment of the apex Court in the case of Esskey Roadways (Firm) (supra), and various other judgments has ruled in paragraph 19 of the order that the relevant date for consideration of qualitative assessment of the claims of the applicants shall be the time as regards fulfilment of qualifications required in the rules and in regard to availability of the vehicle at the time of passing of the order by the authority. Therefore, as on the date of consideration of and passing of the order by the Authority, the new application so submitted and documents so filed in the pending application are required to be considered by the authority. 14. Admittedly, there is no provision either in the Act of 1988 or Rules framed thereunder prescribing the procedure to be followed for grant of any kind of permit. The respondent/State as submitted as far as back in the year 1997 vide Resolution No.114/97 dated 21.3.1997 (Annexure R-2) has formulated the procedure as regards submission of applications including the details of the applications and the cut off date and the same is claimed to have been followed in the instant case, i.e., in the ensuing meeting scheduled for consideration of applications for grant of permit. The petitioner in the rejoinderaffidavit has specifically stated that the aforesaid handmade procedure has never been acted upon earlier during the meetings scheduled from the years 1997 upto 15.10.2014 as applications submitted on the date of consideration have been duly considered during the course of such meetings for grant of permits. That apart, the STA while granting permits vide its orders dated 24.11.2014 for the routes from Sidhi to Banaras, dated 15.12.2014 from Shahdol to Allahabad and dated 15.12.2014 from Bhind to Agra, the cut off date for submission of documents and applications was not at all fixed. The aforesaid submission made in the rejoinder affidavit has not been controverted by the respondents/State. Respondents have not been able to refer to any provisions of Act of 1988 or the Rules framed thereunder contrary to that. Hence, the aforesaid procedure adopted by the respondent/State in the meeting scheduled for consideration of the application for grant of permit is contrary to the provisions of section 80 of the Act, judgments of the Hon’ble apex Court and this Court referred to hereinabove. Hence, the aforesaid procedure adopted by the respondent/State in the meeting scheduled for consideration of the application for grant of permit is contrary to the provisions of section 80 of the Act, judgments of the Hon’ble apex Court and this Court referred to hereinabove. That apart, respondents cannot be permitted to play fast and loose with the authority for selective application of aforesaid procedure as per their choice which otherwise lacks legal sanction, as brought on record in the rejoinderaffidavit. This Court finds substantial force in the submission advanced by the petitioner as regards right for consideration of applications and documents in the pending application at the time of scheduled meeting for grant of permit shall certainly be in consonance with the simplification of procedure and policy liberalizations for private sector operations in the road transport field and the same shall lead to competitive evaluation of the inter se merits of claim of applicants to provide qualitative, superior and efficient transport service to the public at large; one of the objects for which the Act of 1988 was enacted. 15. In the light of the foregoing discussion and facts and law, the impugned notice Annexure P-1 dated 15.12.2014 fixing the cut off date for submission of applications and filing of the documents in support of the pending applications before the schedule date of meeting and also inviting objections vide Agenda No.6632/Reader/SAT/14 dated 30.12.2014 (Annexure R-3) are hereby quashed. It is directed that the concerned authority shall consider the new applications filed or documents filed in support of the pending applications submitted on the date of consideration of the application for grant of permit for the purpose of grant of stage carriage permit, in accordance with law. 16. Accordingly, the questions formulated are answered affirmative and in favour of petitioners. 17. With the aforesaid directions, all the writ petitions stand allowed and disposed of. 18. A copy of the order be placed in the connected writ petitions. ............