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Madhya Pradesh High Court · body

2017 DIGILAW 174 (MP)

Banshilal v. Union of India

2017-02-02

P.K.JAISWAL, VIRENDER SINGH

body2017
ORDER : P.K. Jaiswal, J. 1. The petitioner who is practicing law at Ujjain has filed this writ petition under Pro Bono Publico raising a grievance that the respondents were misusing the funds granted by the Union of India under the scheme known as "Jawahar Lal Nehru National Urban Renewal Mission" (herein after referred as "JNNURM") by operating the transport service outside the Ujjain city whereas the funding was only for the purpose of providing transport service for the city of Ujjain only, ie., by operating transport vehicle outside the urban area of Ujjain city. It is alleged that this action is malicious action and the local government and its officers in collusion have started the bus services by obtaining permit from Ujjain to Dewas, Ujjain to Shajapur, Ujjain to Makdon and other areas outside the city of Ujjain whereas, the respondent No.8 - Municipal Corporation is not authorised to use these funds except for city bus operations that too within the Corporation area of Ujjain. 2. According to the petitioner the State Government and the Ujjain Municipal Corporation has no authority to change and misuse the funds provided by the Union of India under the JNNURNM scheme beyond the urban area of Ujjain Municipal Corporation, Ujjain and prayed for issuance of writ of mandamus directing the respondents No.2 to 8 to improve urban area Ujjain and provide better public transport service within the urban area of Municipal Corporation under the JNNURNM scheme. He has also prayed for issuance of writ of prohibition, prohibiting the use of fund provided under the JNNURNM, beyond the territorial urban city of Ujjain city and direct the respondent No.7 not to grant permit to the respondent No.8 for the buses under the JNNURNM scheme beyond the territorial urban area of Ujjain city. 3. A preliminary objection has been raised by the respondent No.8 as to how the ply of bus services outside the city of Ujjain thereby connecting the Ujjain city from nearby area is detrimental to the public interest. 4. The case of the petitioner is that for implementation of urban transport policy, the Government of India has formulated the scheme know as 'JNNURNM' as per which the Government of India, has provided 100% central grant to the implementing agency. The mission under JNNURNM is to encourage reforms and pass fast track planned development of identified cities. 4. The case of the petitioner is that for implementation of urban transport policy, the Government of India has formulated the scheme know as 'JNNURNM' as per which the Government of India, has provided 100% central grant to the implementing agency. The mission under JNNURNM is to encourage reforms and pass fast track planned development of identified cities. The main thrust of the mission will be on infrastructure projects relating to water supply and sanitation, sewerage, solid waste management, road network, urban transport and redevelopment of old city areas with a view to upgrading infrastructure therein. Under the JNNURM Scheme, cities in Madhya Pradesh, ie., Bhopal, Indore, Jabalpur and Ujjain are identified and the Government of India has provided 100% assistance to the State Government to procure buses to operate as city bus service within the city limit of Bhopal, Indore and Ujjain. For implementation of above project under JNNURM, the Government of India has appointed Urban Mass Transit Company Limited (in short, "UMTCL") a wholly public sector company to help in preparation of project report, detailed design of operational plan and contracting of operators etc. and to provide consultancy service to implementing agencies. As per the scheme of JNNURNM the financing of buses to be undertaken successfully for obtaining transport/urban area in order to ensure that the buses procured under JNNURNM are successfully utilized for urban transport. The States are to setup SPV (Special Purpose Vehicle)/umbrella public body for controlling and managing the said transport operations. 5. In Ujjain, the Ujjain transport service limited has been incorporated, which is a company owned by Ujjain Municipal Corporation. This company controls the entire transport operation and is the owner of the fleet of buses procured under the JNNURNM scheme. As per Annexure R/6 letter dated 12.1.2009, the Government of India decided that states as a one time measure would be provided assistance under the JNNURNM scheme for the purchase of buses for their urban transport system. Para 2 and 3 of letter dated 12.1.2009 is relevant which reads as under :- "2. As per Annexure R/6 letter dated 12.1.2009, the Government of India decided that states as a one time measure would be provided assistance under the JNNURNM scheme for the purchase of buses for their urban transport system. Para 2 and 3 of letter dated 12.1.2009 is relevant which reads as under :- "2. Accordingly, it has been decided, with the approval of Competent Authority that the Central financial assistance in the form of grant shall be provided for procurement of buses for urban transport under JNNURNM as per detailed guidelines attached as Annexure I. The financing is meant exclusively for city bus service and Bus Rapid Transit System (BRTS) for all Mission cities. 3. The parastatals/ULB shall have to prepare proposal in the form of a detailed project report (DRP) giving details of city bus service/BRTS planning financing arrangement, user, charges, sustainability analysis, operations, maintenance, the ultimate benefit which will accrue to the urban commuters colour scheme and logo for display of JNNURNM prominently on the buses etc." 6. As per Annexure 1 of the said scheme a detailed project report for finance assistance is to be submitted to the committee sanctioning the fund and after approval of a detailed project report, the funds are released for the said purpose. Sub clause (i), (ii) and (iii) of Clause 2.0 of guidelines for extending additional central assistance are relevant which reads as under :- (i) All JNNURM cities will be eligible for Additional Central Assistance (ACA) for procurement of buses for urban transport. (ii) The financing for buses under JNNURM is exclusively for urban transport ie., city bus service and/or BRTS for the city/urban area for which buses are procured. In order to ensure that the buses procured under JNNURM are utilised exclusively for urban transport, the States/UTs/ULBs/para-statals shall set up a city specific wholly owned SPV/umbrella public body for controlling and managing the city bus service/BRTS. (iii) Detailed Project Report shall have to be submitted by State Government/SLNA including details about city bus service/BRTS planning, financing arrangements, sustainability, user charges, operation, maintenance, the ultimate benefit which will become available to the urban commuters (Annexure II). 7. Number of routes have been identified for operation of city bus services outside the city of Ujjain, which are Ujjain to Dewas, Ujjain to Shajapur and Ujjain to Makdon and other areas outside the city of Ujjain. 7. Number of routes have been identified for operation of city bus services outside the city of Ujjain, which are Ujjain to Dewas, Ujjain to Shajapur and Ujjain to Makdon and other areas outside the city of Ujjain. Being aggrieved by the decision taken by the respondents No.1 and 8, the present writ petition is filed on the ground that the operation between Ujjain to Dewas, Ujjain to Shajapur, Ujjain to Mackdon and other areas outside the city of Ujjain is in contravention of transport policy as well as JNNURNM scheme framed by the Union of India. The said scheme was framed for the urban area of Ujjain, ie., within the Ujjain Municipal Corporation area for providing basic transport service to the city people only with a view to provide utilities to the urban poor. The financing is meant exclusively for city bus service and Bus Rapid Transit System (BRTS) for all Mission cities. Under the scheme there is no provision for inter district bus service. The route identified by the (UCTSL) is a joint venture company of the Government of India and the State Government, relating to the urban transport like providing city bus services on PPS basis. The route for plying the entire district bus service identified by UCTSL is contrary to the scheme of JNNURNM. No approval is being made by the Government of India for operating the city buses on the inter regional route between Ujjain to Dewas, Ujjain to Shajapur, Ujjain to Makdon. The route between Ujjain to Dewas, Ujjain to Shajapur, Ujjain to Makdon cannot be said to be route within the urban area of Ujjain, Jabalpur, Bhopal and Indore. Therefore, the action of respondent No.8 to out source the operation of the city bus services outside the urban limit of Ujjain is arbitrary and unreasonable and the same is against the scheme. 8. Shri C.L. Yadav, learned Senior counsel for the petitioner has submitted that the object of urban transport policy is to ensure safe, affordable, quick, comfortable, reliable and sustainable access for the growing number of city residents to jobs, education, recreation and such other needs within the city. 8. Shri C.L. Yadav, learned Senior counsel for the petitioner has submitted that the object of urban transport policy is to ensure safe, affordable, quick, comfortable, reliable and sustainable access for the growing number of city residents to jobs, education, recreation and such other needs within the city. The urban local bodies are responsible for delivering transport services under the JNNURM scheme, the said basic services could be done in partnership with private sector to improve efficiency of operations and lower the over all cost of serving the public and thereby improve financial sustainability. The urban transport could not improve efficiency of transport operation when it engaged in inter regional routes or the route beyond the urban areas. The decision to operate in the route in question is bound to have a negative impact on the passengers for transport. With the aforesaid, he has prayed for grant of the relief sought for in the writ petition. 9. Per contra, Ms. Mini Ravindran, learned counsel for the respondent No.8 has submitted that under the JNNURNM scheme and the detailed project reports, which has been sanctioned by the Ministry of Urban Development in its CSMC meeting, it had categorically mentioned the routes on which the operation of transport service was to be undertaken. The said DPR was sanctioned vide order dated 22.8.2013 (Annexure R/1). After the sanctioned of the DPR the fund for purchase of the buses has been accepted by letter dated 22.8.2013, the payment of Rs.378.76 lacs was released in favour of the respondent No.2 (Annexure R/12). The buses purchased by the respondent No.8 are well equipped with the latest State of Art Technology and are as per as the Urband bus specification, these buses contain GPS system, CCTV cameras, Electronic tickets wending machines, maintain safety towards women passengers are two doored low floored buses for easy alighting buses, well equipped separate seats of women passengers, having displays depicting information of the arrivals and departure of buses. These facilities are provided on very economical rates which are people friendly and looking to the facilities which are provided are much better than the various other stage carriage buses which are plied on the route. These facilities are provided on very economical rates which are people friendly and looking to the facilities which are provided are much better than the various other stage carriage buses which are plied on the route. The private player is only engaged to bring his expertise in management of the transport system for the purpose of management only, the private players is involved as per as the feature and guidelines laid down in the JNNURNM scheme. There is no violation to any of the provisions of any prevalent law or is detrimental to the fundamental rights as guaranteed by the Constitution of India. 10. As per IInd DPR for procuring the finance assistance to run the bus operation and after taking into consideration the detailed project report, the financial assistance has been approved and granted by the mission director of JNNURM. The funding has been done by the Union of India. All the sanctions which includes financial assistance and route in question has been approved and thereafter, the Union of India granted financial assistance for procuring of buses. The entire process has been handled in transparent manner. The allegation made by the petitioner has no basis at all. Ujjain is an important tourist and pilgrimage place of State of Madhya Pradesh. The permits have been granted under the Motor Vehicles Act, 1988 and Rules framed therein. There is no contravention in any of the condition and policy formulated under JNNURM and prayed for dismissal of the writ petition. 11. It is not disputed that Ujjain City Transport Service Ltd is a Government undertaking, which has been created to implement scheme JNNURM in Ujjain city. The bus service provided under the route in question undoubtedly is in public interest. 12. The Apex Court in the case of Mitlesh Garg & Ors. v. Union of India & Ors. reported as 1992 (1) SCC 168 has held the following in para 6 :- "6. The petitioners are existing stage-carriage operators on different routes. They hold permits granted by the Regional Transport Authorities concerned. Mithlesh Garg, petitioner in Civil Writ Petition No. 1345/1989 has stated that he holds a stage carriage permit and plies his vehicles on the Meerut Parikshitgarh-Hasifabad-Laliana and allied routes under the jurisdiction of the Regional Transport Authority, Meerut. The petitioners are existing stage-carriage operators on different routes. They hold permits granted by the Regional Transport Authorities concerned. Mithlesh Garg, petitioner in Civil Writ Petition No. 1345/1989 has stated that he holds a stage carriage permit and plies his vehicles on the Meerut Parikshitgarh-Hasifabad-Laliana and allied routes under the jurisdiction of the Regional Transport Authority, Meerut. According to him prior to the enforcement of the Act, 23 permit-holders were operating on the said route but thereafter under Section 80 of the Act the Regional Transport Authority, Meerut has issued 272 more permits in respect of the same route. Similar facts have been stated in the other writ petitions. As mentioned above the petitioners are permit holders and are existing operators. They are plying their vehicles on the routes assigned to them under the permits. They are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g). of the Constitution of India. There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators. There is no complaint of infringement of any of their statutory rights. Their only effort is to stop the new operators from coming in the field as competitors. We see no justification in the petitioners' stand. More operators mean healthy-competition and efficient transport system. Overcrowded buses, passengers standing in the aisle, clinging to the bus-doors and even sitting on the roof-tops are some of the common sights in this country. More often one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black-smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter-public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monoply, adversely affecting the public interest. The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession is without any basis. Restricted licensing under the old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monoply, adversely affecting the public interest. The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession is without any basis. The transport business is bound to be ironed-out ultimately by the rationale of demand and supply. Cost of a vehicle being as it is the business requires huge investment. The intending operators are likely to be conscious of the economics underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a state is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal. The petitioners who are already in the business want to keep the fresh entrants out of it and as such eliminate the healthy competition which is necessary to bring efficiency in the trade. This court in Jasbhai Motibhai Desai v. Roshan Kumar posed the following questions for its determination :- "Whether the proprietor of a cinema theater holding a licence for exhibiting cinematograph films, is entitled to invoke the certiorari jurisdiction ex-debito justitiae to get a 'No-Objection Certificate', granted under Rule 6 of the Bombay Cinema Rules, 1954 (for short, the Rules) by the District Magistrate in favour of a rival in the trade, brought up and quashed on the ground that it suffers from a defect of jurisdiction, is the principal question that falls to be determined in this appeal by special leave." " 13. In the first phase under the bus funding scheme a total number of 50 buses were sanctioned with Ujjain on 26.2.2009. Thereafter a DPR was prepared in the year 2011 wherein, the entire district routes were proposed as given in the DPR and it was requested that for these operations a change of category of buses be sanctioned so that project be most viable. The CMC meeting held on 13.1.2012 sanctioned the buses and the funding by way of instalment by approving the DPR. The CMC meeting held on 13.1.2012 sanctioned the buses and the funding by way of instalment by approving the DPR. The DPR phase 2 for financial assistance under the JNNURM for purchase of buses was prepared and submitted wherein also inter district route proposal was submitted which was approved vide letter dated 22.8.2013. 14. The basic moto of JNNURUM scheme is the upliftment of the urban poor by providing basic people friendly infrastructure one of which is urban transport system for the urban people in the city of Ujjain who commute in and out of the city of Ujjain. The Ujjain city being a pilgrimage city is bound to have tourists and also more people traveling in an out of the city therefore looking to the demand of a effective economical and pocket friendly transport system the need for undertaking transportation operations connecting the city of Ujjain from other cities was felt and accordingly DPR was prepared and the same was approved and sanctioned by the committee of the Central Government and funds were released under the JNNURUM scheme. It is not the case of the petitioner that entire district bus service area of Ujjain for plying the city bus under JNNURUM has been taken by the respondent No.8 or UCTCL Company. The decision to ply the buses outside the urban areas of Ujjain has been approved by the respondent No.1 and, therefore, we are of the view that the decision taken by the respondent No.8 in plying the buses outside the urban area of Ujjain is in consonance with the objectives sought to be achieved by the JNNURM and that will provide a safe, convenient and affordable connectivity with latest technology between the adjoining cities of Ujjain and will serve the interest of common man as well as thousands of pilgrimages visiting to Lord Mahakal temple at Ujjain. 15. For these reasons, the writ petition filed by the petitioner has no merit and is accordingly, dismissed. There shall be no order as to costs.