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2018 DIGILAW 2146 (HP)

Inder Singh v. State of Himachal Pradesh

2018-12-04

SANDEEP SHARMA, SURYA KANT

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. Being aggrieved and dissatisfied with the publication of Notifications dated 28.2.2008 (Annexure P-1) and dated 14.7.2017 (Annexure P-2), in the official Gazette, petitioner has approached this court in the instant proceedings filed under Art. 226 of the Constitution of India, praying therein to set aside and quash the same. 2. In nutshell, case as projected in the petition and as argued by Mr. Ajay Sharma, learned counsel representing the petitioner, is that Notification in the official Gazette dated 14.7.2017, invoking provisions of Sub-section (5) of Section 88 of the “Punjab Motor Vehicles Act, 1988” thereby notifying Reciprocal Transport Agreement, entered into between respondents No.1 and 2, is unsustainable in the eye of law. As per provisions of Motor Vehicles Act, 1988 (hereafter, ‘Act’), State Transport Undertaking (hereinafter, ‘STU’) in either of the States is a parallel player with private bus operators. Petitioner has averred that as per provisions of the Act, special treatment is available to the STU, in case Government concerned invokes the provisions of Chapter-6 of the Motor Vehicles Act. While invoking provisions contained in Chapter 6, State of Himachal Pradesh had issued Notification for according special permits to the STU, however, same was withdrawn, whereafter Government of Himachal Pradesh, while exercising powers under Section 99 of the Act, again issued Notification, calling for objections. Allegedly, the objections were filed but no further proceedings at any point of time were drawn by the concerned authorities, and as such, STU and private bus operators are same and similarly situate as of today. Petitioner has alleged that grave injustice has been caused to the petitioner and other private bus operators in the State of Himachal Pradesh, details qua which have been given in the body of the petition, because, decision having been taken to their detriment, is at their back, that too contrary to the provisions of the Act and Rules, as such, they are compelled to approach this court in the instant proceedings. 3. Mr. 3. Mr. Ajay Sharma, learned counsel representing the petitioner, while referring to Annexure P-2, Gazette Notification dated 14.7.2017, contended that as per provisions of Subsection (5) of Section 88 of the Act, State of Himachal Pradesh had published the draft of Reciprocal Transport Agreement, proposed to be arrived at between the States of Himachal Pradesh and Punjab, but the same was without complying with provisions of the Act, more particularly, Sub-section 5 of Section 88 of the Act. Aforesaid provision of the Act depicts that every proposal to enter into an agreement between the States to fix the number of permits shall be published by each of the State Governments concerned in the official Gazette and in any one or more of the newspapers in the regional language circulated in the area or routes proposed to be covered by the Agreement. Mr. Sharma, further contended that to the best knowledge of the petitioner, respondent No. 1 had not published Notification in the official Gazette dated 28.2.2008, in any of newspapers and there is no reference of the newspapers, otherwise given in the official Gazette Notification (Annexure P-1). 4. As per petitioner, Annexure P-1 is not in consonance with the provisions of Sub-section 5 of Section 88 of the Act, because another Notification dated 14.7.2017 (Annexure P-2) stands published after a period of ten years from the date of issuance of Annexure P-1 i.e. 28.2.2008. Mr. Sharma, while referring to both the Notifications i.e. Annexure P-1 and Annexure P-2, contended that since more than ten years have elapsed, much water has flown under the bridge, thereby itself making Annexure P-2 invalid and as such, Notification dated 14.7.2017, can not be given effect to. Mr. Sharma, further contended that Annexure P-2 i.e. Notification dated 14.7.2017, has been issued drawing powers from “Punjab Motor Vehicles Act, 1988”, and on the basis of transport Notification of Government of Punjab, dated 23.1.2008 and there is no reference given with regard to Notification by the Government of Himachal Pradesh, whereas, as per provisions of the Act, both the State Governments are required to publish draft Notifications, calling therein for objections and as such, Notifications being not in consonance with the provisions of Sub-section (6) of Section 88 of the Act, deserve to be quashed and set aside. 5. Mr. 5. Mr. Ajay Sharma, learned counsel representing the petitioner, while referring to the Notification referred to herein above, contended that about fifty plus permits have not been shown in the official agreement and mileage in kilometres with respect to private bus operators has been reduced from 2407.5 kms to 1364.5 kms i.e. about 1043 kms, as such, decision taken by the respondents to the detriment of the petitioner that too at his back, cannot be allowed to be sustained. Mr. Sharma, further contended that private bus operators, to whom Corridor Inter-State Permits have been allowed, without entering in the Reciprocal Transport Agreement, are being taxed much more than the required tax as per norms in as much as SRT requires to be paid to the Punjab Government of such Corridor Permit at the rate of Rs.6.13 per kilometre, whereas same entered in the Agreement are required to pay Rs.4.13 per kilometre and not only this, when permits of private bus operators are not added in the Reciprocal Transport Agreement, it becomes difficult to get a time table. As per petitioner, respondents have issued about a hundred Corridor Permits during the years 2002 to 2008 and buses are being plied but the respondents have not included the same in the Reciprocal Transport Agreement and such buses are running from Una to Terrace via Talwara, one side distance of which is 19 kms, however, these buses have been put in Corridor Permit by showing 16 kms, which is totally wrong and arbitrary, as these permits were to be included in the Inter-State routes, thereby grave miscarriage of justice has been caused to the private bus operators. 6. We have heard the learned counsel for the parties and gone through the record carefully. 7. This court, with a view to ascertain the correctness and genuineness of the aforesaid averments contained in the petition and arguments advanced by the learned counsel representing the petitioner, carefully perused the material adduced on record by the respective parties, as well as various provisions of the Motor Vehicles Act, perusal whereof suggests that actually the petitioner is aggrieved by non-inclusion of his stag carrier permit against corridor permit allegedly issued for plying three return trips on Sri Naina Devi Ji-Toba-Anandpur Sahib-Ganguwal-Guru Ka Lahore route. It is not in dispute that the corridor permit is issued in accordance with the provisions of the Act. It is not in dispute that the corridor permit is issued in accordance with the provisions of the Act. Second proviso to Section 88 of the Act suggests that where both, starting point and termination point, of the route are situated within the same State, but part of such route lies in other State and length of route does not exceed 16 kilometres, permit shall be valid in other State in respect of that part of route, which is in the other State as well, notwithstanding that such permit has not been countersigned by the STU or the RTA of other State. In the case at hand, it is not in dispute that the petitioner itself has a stage carrier only for 6 kms, within the territory of respondent No.2. 8. Careful perusal of the response having been filed by the respondents suggests that stage carriage permit No. ST-S 184/REG/STG/08 was actually issued in favour of one Shri Prabhat Singh Chandel son of Shri Anant Ram, resident of Village and Post Office Bhakra, Tehsil Sri Naina Devi Ji, District Bilaspur, Himachal Pradesh by RTO Bilaspur on 9.7.2008 and such permit was issued on route namely Shri Naina Devi Ji-Toba-Anandpur Sahib-Ganguwal-Guru Ka Lahore with three return trips. Subsequently, such permit came to be transferred in the name of petitioner in the year 2010. It is also not in dispute that Notification dated 28.2.2008 (Annexure P-1) came to be issued in the year 2008, whereas, permit, as has been noticed herein above, came to be transferred in the name of petitioner in the year 2010, when he was not holder of above mentioned permit, as such, there appears to be considerable force in the argument of Mr. Pranay Pratap Singh, learned counsel representing respondent No.2 that there is no locus standi in favour of the petitioner to file the present petition, challenging Annexure P-1. Perusal of the Notification, Annexure P-1 dated 28.2.2008, suggests that the same was issued by respondent No.1, proposing therein to enter into a reciprocal agreement with respondent No.2 i.e. State of Punjab. Aforesaid agreement was to be entered into in terms of Sub-section (5) of Section 88 of the Act for plying stage carrier service in the territory of each other, as such, draft Reciprocal Transport Agreement was published by respondent No.2. 9. Aforesaid agreement was to be entered into in terms of Sub-section (5) of Section 88 of the Act for plying stage carrier service in the territory of each other, as such, draft Reciprocal Transport Agreement was published by respondent No.2. 9. Though, the petitioner has categorically stated in the petition that after issuance, no notice was issued to the persons likely to be affected by such proposed agreement, but careful perusal of the reply having been filed by respondent No.2, clearly suggests that in pursuance to agreement referred to herein above, objections/suggestions qua the proposal were invited within thirty days from the date of publication of notice in the official Gazette, but, since no objections were filed by the petitioner at the relevant time, it attained finality. Similarly, a close scrutiny of Notification (Annexure P-2) reveals that the same being draft proposal of Reciprocal Transport Agreement between the State of Himachal and Punjab under Sub-section (5) of Section 88 of the Act for plying stage carriage service into the territory of each State, which was issued on 28.2.2008 came to be published in the official Gazette on 14.3.2008. Replies having been filed by the respondents clearly suggest that both the Notifications as referred to above, were finalized after complying with the conditions contained in Section 88(6) of the Act. Notification was published on 13.7.2017 in the official Gazette, after completion of the necessary codal formalities. As far as mentioning of “Punjab Motor Vehicles Act, 1988” in Notification (Annexure P-2) is concerned, that appears to be a clerical mistake, which fact has been otherwise specifically mentioned in para-6 of the reply filed by respondent No. 2. Respondent No.2, in para-6 of the reply has categorically stated that there is no such Act, as mentioned in this para i.e. “Punjab Motor Vehicles Act, 1988”. It has been stated that on account of typographical error in the Reciprocal Transport Agreement, “Motor Vehicles Act, 1988” was erroneously mentioned as “Punjab Motor Vehicles Act, 1988”. Otherwise also, this court finds that bare perusal of Annexure P-2, clearly suggests that Gazette Notification being referred is actually issued by the State of Himachal Pradesh, wherein only draft Notification proposed to be issued by the State of Punjab is actually reproduced, wherein, inadvertently, words, “Punjab Motor Vehicles Act, 1988” were mentioned. 10. Otherwise also, this court finds that bare perusal of Annexure P-2, clearly suggests that Gazette Notification being referred is actually issued by the State of Himachal Pradesh, wherein only draft Notification proposed to be issued by the State of Punjab is actually reproduced, wherein, inadvertently, words, “Punjab Motor Vehicles Act, 1988” were mentioned. 10. Respondent No.1, State of Himachal Pradesh, while defending Notifications, Annexures P-1 and P-2, has categorically stated in its reply that the petitioner was never granted permit for the route, which was governed by Reciprocal Transport Agreement between the States of Himachal Pradesh and Punjab, as contemplated under Subsections (5) and (6) of Section 88, and the petitioner was granted Corridor Permit under Second proviso to Section 88(1) of the Act, where both, starting point as well as terminal point, of the route are situate in the same State but part of such route lies in other state, length of which part does not exceed 16 kms. Reply having been field by the respondent No.1 reveals that actually the petitioner was granted Corridor Permit on the route Sri Naina Devi Ji-Toba-Anandpur Sahib- Ganguwal-Guru Ka Lahore, on 9.7.2008, for a period of five years, which was renewed for a further period of five years and the object, area and scope of Corridor Permit are entirely different vis-à-vis route permit issued under the Reciprocal Transport Agreement between the States of Himachal and Punjab. Respondent No.1 has specifically denied the allegations of the petitioner that the respondents never resorted to publication in the newspaper nor given any notice before excluding route permit from the category of Reciprocal Transport Agreement between the States of Himachal Pradesh and Punjab. Respondent No.1 has categorically stated that proposal for notification of Reciprocal Transport Agreement was issued on 28.2.2008 and petitioner was not permit holder as on 28.2.2008. 11. This court is in agreement with the learned Advocate General that once provisions of Sub-sections (5) and (6) of Section 88 of the Act were not applicable to the case of petitioner, there was no question of giving any notice with respect to publication or entering into Reciprocal Transport Agreement in the State of Himachal Pradesh and Punjab to the petitioner. In para-7 of the reply, respondent No.1 has categorically stated that before publishing the Notification in official Gazette, a press note of intimation for the general public was published in two Hindi newspapers i.e. “Amar Ujala” and ”Dainik Jagran” on 10.10.2017, which fact totally belies the allegations put forth by the petitioner in the petition at hand. 12. Having heard the learned counsel representing the parties and perused the material available on record, this court is not persuaded to agree with Mr. Ajay Sharma that the Notifications, Annexures P-1 and P-2 are not sustainable, in as much as same have not been issued in consonance with Subsection (6) of Section 88 of the Act, which provides for its publication in any of the newspapers having circulation in the area or route covered by it, in regional language, because replies having been filed by respondents, which have been otherwise taken note of, clearly suggest that before publication of the Notification, not only objections were invited rather, press note of intimation for the general public was published in two Hindi newspapers i.e. “Amar Ujala” and “Dainik Jagran”. 13. Leaving everything aside, this court, having perused the record, is convinced and satisfied that since petitioner was granted Corridor Permit under Second proviso to Sub-section (1) of Section 88 of the Act and there was no permit as on 28.2.2008, rather petitioner was granted the same on 9.7.2008, and as such, plea of giving no notice, having been raised by the petitioner, is devoid of any merit and deserves outright rejection. 14. As far as publication of notification after a delay of ten years from the date of issuance of Annexure P-1 is concerned, this court having noticed such glaring discrepancy on the part of the respondents, summoned the Principal Secretary (Transport) to the Government of Himachal Pradesh, vide order dated 13.9.2018, to explain the circumstances, which led to delay in issuance of Notification (Annexure P-2). On 14.9.2018, this court was informed that the matter is being looked into and compliance shall be reported on the next date of hearing. On 28.9.2018, this court was informed that the respondent- State has filed an application praying therein for extension of time, wherein it has also stated that the Reciprocal Transport Agreement, which was executed on 29.8.2016, is in existence till date in the State of Himachal Pradesh as well as State of Punjab. On 28.9.2018, this court was informed that the respondent- State has filed an application praying therein for extension of time, wherein it has also stated that the Reciprocal Transport Agreement, which was executed on 29.8.2016, is in existence till date in the State of Himachal Pradesh as well as State of Punjab. All the inter-State buses now are plying on the basis of aforesaid agreement hence a meeting has been fixed for 29.9.2018 at 11.00 AM, in the chamber of the Principal Secretary (Transport) to the Government of Himachal Pradesh with his counterpart in the Government of Punjab, to re-look into the matter for the further action. This court, while expressing its displeasure and dissatisfaction with regard to the explanation rendered on record by the respondents, reluctantly granted time to the respondents for doing the needful. On 26.10.2018, this court was informed that a meeting of the Secretaries Transport of three States i.e. Punjab, Haryana and Himachal Pradesh is scheduled to be held on 1.11.2018. 15. Today, during the proceedings of the case, while inviting attention of this court to the communication issued by Principal Secretary (Transport) to the STA, learned Advocate General contended that the authority concerned has been directed to furnish draft of revised agreement, as such, necessary action with regard to revision of Reciprocal Transport Agreement shall be taken on priority basis. 16. Having carefully considered the submissions made by the learned counsel representing the petitioner as well as material adduced on record, this court has no hesitation to conclude that the grounds taken in the petition as well as reasons assigned/taken for declaring the Notifications, Annexures P-1 and P-2, to be illegal, are not sufficient to hold aforesaid Notifications invalid, especially when very locus standi of the petitioner is under a clout. However, this court would have definitely proceeded to quash the aforesaid Notifications on the ground of delay, because, admittedly, Notification publishing draft Reciprocal Transport Agreement, proposed to be entered inter se States of Punjab and Himachal Pradesh in terms of Sub-section (5) of Section 88 of the Act, was issued on 28.2.2008. However, this court would have definitely proceeded to quash the aforesaid Notifications on the ground of delay, because, admittedly, Notification publishing draft Reciprocal Transport Agreement, proposed to be entered inter se States of Punjab and Himachal Pradesh in terms of Sub-section (5) of Section 88 of the Act, was issued on 28.2.2008. As per aforesaid Notification, notices to the affected persons with regard to proposed Reciprocal Transport Agreement were to be called and sent to the Principal Secretary (Transport) to the Government of Himachal Pradesh within thirty days from the date of publication of the notice in the initial Gazette, so that final Notification notifying therein Reciprocal Transport Agreement entered inter two Governments could be published. In the case at hand, second Notification, dated 14.7.2017 (Annexure P-2) and the Reciprocal Transport Agreement between the States of Himachal Pradesh and Punjab, came to be published after approximately ten years. It is strange and astonishing that the Governments, after issuance of first Notification dated 28.2.2008, whereby objections with regard to draft of Reciprocal Transport Agreement were called, kept on permitting vehicles to be plied inter-State without there being a valid Reciprocal Transport Agreement inter se them for long ten years. Though, vide Notification dated 14.7.2017, respondent No. 1 has now published Reciprocal Transport Agreement between the States of Himachal and Punjab, but that is also not in accordance with law, as has been noticed herein above, that is why, during the pendency of the petition, this court repeatedly asked the Government of Himachal Pradesh to take up the matter with the Government of Punjab for rectification/revision of Reciprocal Transport Agreement. 17. In the aforesaid scenario, we would not have hesitated to quash the aforesaid Notifications of our own having noticed aforesaid glaring discrepancies and incompetence on the part of the officers, who were in the helm of the affairs when such Notifications were issued, but, having taken note of the fact that in the event of such a harsh decision being taken by the court, public at large would suffer, we restrain ourselves from passing such an order. However, we put a word of caution to the respondents to be more cautious, while dealing with such matters, which directly relate to the public at large. 18. However, we put a word of caution to the respondents to be more cautious, while dealing with such matters, which directly relate to the public at large. 18. Consequently, in view of the above, present petition is disposed of with a direction to the Principal Secretaries (Transport) to the Governments of Himachal Pradesh and Punjab to jointly take steps for revision of Reciprocal Transport Agreement signed on 19.8.2016, within a period of three weeks from today and thereafter give effect to the same, so that no ambiguity is left in the same. Pending applications, if any, are disposed of.