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2019 DIGILAW 347 (RAJ)

Gopal Purohit v. State of Rajasthan

2019-01-30

SANGEET LODHA

body2019
ORDER : Sangeet Lodha, J. 1. By way of these writ petitions, the petitioners have challenged the action of the Secretary, State Transport Authority (STA), Rajasthan Jaipur/Secretary, Regional Transport Authority(RTA), Jodhpur/Bikaner in permitting the extension of the route covered by permit granted in favour of the private respondents beyond the limit permissible under sub-section (3) of Section 80 of Motor Vehicles Act, 1988 (for short "the Act"). 2. The respondents, private operators, operating the buses on the strength of the State Carriage Permit granted on various routes, submitted applications for inclusion of the new routes in the existing routes covered by the permit. The applications were allowed by the STA/RTA and the inclusion as prayed for was granted. The details of the permits granted in favour of the private respondents, the original route, the length of the route, the extension granted by the STA/RTA may be summarised thus: Sr.No. Writ No. Original Route Length of Original Route Extended Route Length of the Extended Route 1. 3461/18 Jodhpur to Jaisalmer 295 kms. Jaisalmer to Ramgarh 65 Kms. 2. 9584/18 Bikaner-Ratangarh (Notified route No.214) 148 kms. 1. Ratangarh to Rajaldesar 16 kms. 2. Rajaldesar to Sardarsahar 81 kms. 3. Sardarsahar to Khuiya 75 kms. 3. 9604/18 Bikaner to Ragangarh (Notified route no.214) 148 kms. 1.Ratangarh to Rajaldesar 16 kms. 2. Rajaldesar to Sardarsahar 81 kms. 3. Sardarsahar to Sahawa 82 kms. 4. Nohar to Sahawa 42 kms. 5. Nohar to Bhadra 88 kms. 3. Precisely, the contention of the petitioners is that the respondents were operating their vehicles on the notified routes covered by notification dated 2.9.15 on the strength of the permits granted under the modified Scheme and thus, inclusion/extension of routes granted by the STA/RTA beyond the scope of the said notification is ex facie illegal inasmuch as, the extended routes are not provided under the notified Scheme. It is submitted that an application to vary the condition of the permits by inclusion of a new route or routes or a new area or by altering the route or routes or area covered by the permit or in case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit is treated to be an application for grant of new permit, under the provisions of sub-section (3) of Section 80 of the Act. Drawing the attention of the court to second proviso to subsection (3) of Section 80, learned counsel submitted that in case of variation, the termini is not permissible to be altered and the distance covered by variation cannot exceed twenty-four kilometers. Similarly, in case of extension, the distance covered by extension shall not exceed twenty-four kilometers from the termini. That apart, before permitting the variation or extension within the limit specified as aforesaid, the Transport Authority must satisfy itself that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof. It is submitted that in the instant case, not only the inclusions/extensions granted are beyond the permissible limit of twenty-four kilometres, the termini of the routes have also been altered and thus, the inclusions/extensions granted by the STA/RTA being apparently in contravention of proviso to sub-section (3) of Section 80, are without jurisdiction. In support of the contention, the learned counsel relied upon the decision of this court in the matter of 'Ram Niwas & Anr. v. State Transport Appellate Tribunal & Ors.', 1993 (2) WLC (Raj) 262. 4. On the other hand, the counsel appearing for the private respondents contended that the order passed by the STA/RTA granting the variation/inclusion of the routes, the remedy of appeal and revision under the provisions of Sections 89 and 90 of the Act respectively being available to the petitioners, there is absolutely no reason as to why they should be permitted to invoke the extraordinary jurisdiction of this court under Article 226 of the Constitution of India. In this regard, learned counsel relied upon order dated 24.7.18 passed by the learned single Judge of this court in S.B.C. Writ Petition No. 5502/18 "Arjun Ram v. State of Rajasthan & Ors.". Learned counsel submitted that the petitioners herein have concealed the factum of availability of alternative remedies under the statute and therefore, the writ petitions deserve to be dismissed. Learned counsel urged that the petitioner Mool Singh who was granted permit on the route Bikaner to Taranagar has obtained inclusion of the route from Taranagar to Bhadra in the length of 52 kms. and thus, the person who is beneficiary of inclusion of the extended route in the length of more than 24 kms. as also the variation of the termini cannot be permitted to invoke the jurisdiction of this court questioning the legality of the inclusion/extension granted in favour of the private respondents. Learned counsel submitted that in absence of any explanation for delay in challenging the order passed by the Secretary, STA/RTA, the writ petitions deserve to be dismissed for this reason also. Learned counsel submitted that the bar regarding the extension of the routes beyond the permissible limit as provided under proviso to sub-section (3) of Section 80 does not apply in case of inclusion of new routes and thus, the inclusion granted cannot be said to be contrary to the proviso to subsection (3) of Section 80 of the Act. It is submitted that the decision of this court in Ram Niwas's case (supra), which relates to grant of extension is not applicable to the facts of the instant cases. Learned counsel would submit that on the strength of the extension granted, the petitioners were plying the vehicles on the included routes and thus, it would be against the public interest to deprive the commuter public from the benefits thereof. 5. The counsel appearing for the petitioners replying the arguments of the counsel for the respondents submitted that the orders impugned passed by the STA/RTA granting inclusion/extension of the routes beyond the permissible limit are ex facie without jurisdiction and thus, the availability of alternative remedy cannot operate as bar against this court entertaining the writ petitions preferred by the petitioners. The counsel appearing for the petitioners replying the arguments of the counsel for the respondents submitted that the orders impugned passed by the STA/RTA granting inclusion/extension of the routes beyond the permissible limit are ex facie without jurisdiction and thus, the availability of alternative remedy cannot operate as bar against this court entertaining the writ petitions preferred by the petitioners. Learned counsel submitted that in Arjun Ram's case, the counsel appearing for the petitioner conceded regarding the availability of the alternative remedy and did not press the question that order passed by the STA/RTA is without jurisdiction and straightway proceeded to withdraw the writ petition with liberty to avail the remedy of appeal and therefore, the said decision does not come in the way of the petitioners in any manner whatsoever. Learned counsel submitted that the petitioners have challenged the decision of the RTA in granting permit with utmost expedition and the delay alleged to have been caused is not fatal to their case wherein challenge is to an action of the RTA granting extension of the routes acting without jurisdiction. Learned counsel submitted that the contention of the respondents that the proviso to sub-section (3) of Section 30 does not apply in case of inclusion of the routes is absolutely fallacious inasmuch as, the thing which is not permitted to be done directly cannot be permitted indirectly. It is submitted that in absence of any provision permitting the inclusion of the routes as claimed by the respondents, the action of the STA/RTA in granting extension as prayed for is per se illegal and without jurisdiction. 6. I have considered the submissions of the learned counsels for the parties and perused the material on record. 7. Indisputably, the private respondents were granted permit on the notified routes pursuant to the Schemes of total exclusion modified by the State Government permitting grant of stage carriage permit to the private operators on the routes, number of permits and trips specified. As per the provisions of Section 104 of the Act, the State Transport Authority or the Regional Transport Authority are not entitled to grant any permit on any notified area or notified route covered by the Scheme published under sub-section (3) of Section 100 of the Act except in accordance with the provisions of the Scheme. As per the provisions of Section 104 of the Act, the State Transport Authority or the Regional Transport Authority are not entitled to grant any permit on any notified area or notified route covered by the Scheme published under sub-section (3) of Section 100 of the Act except in accordance with the provisions of the Scheme. It is not the case of the parties before this Court that the modified schemes permit inclusion of the routes is allowed for the permits granted under the Schemes. 8. Coming to the provisions of sub-section (3) of Section 80 as noticed above, on an application made to vary the condition of permit other than a temporary permit by inclusion of a new route or routes or new area or by altering the route or routes or area covered by it or in case of a stage carriage permit by increasing the number of trips above the specified maximum or by variation, extension or curtailment of the route or routes or the area specified in the permit, shall be treated to be an application for grant of new permit. Thus, inclusion of a new route or routes or extension or curtailment of route or routes applied for, would amount to varying of the condition of the existing permit. 9. A bare perusal of second proviso to subsection (3) makes it abundantly clear that in case of variation, the termini shall not be altered and the distance covered by variation shall not be exceed 24 kilometres and therefore, either by inclusion of a new route or routes or by extension of the route or routes, neither the termini of existing route is permissible to be altered nor the inclusion or the extension of the route could be permitted beyond 24 kilometres. Further, as per sub-clause (ii) of second proviso, in case of extension, the distance covered by the extension shall not exceed 24 kilometres. 10. As noticed hereinabove in para No. 2 of the judgment, by way of the chart giving the details of the variation of the permits by way of inclusion of the routes, in the instant case, not only the termini of the existing routes has been changed, the inclusion/extension granted in each of the cases exceeds the length of 24 kilometers. As noticed hereinabove in para No. 2 of the judgment, by way of the chart giving the details of the variation of the permits by way of inclusion of the routes, in the instant case, not only the termini of the existing routes has been changed, the inclusion/extension granted in each of the cases exceeds the length of 24 kilometers. Thus, the action of the STA/RTA in granting inclusion/extension of the routes beyond the permissible limit is ex facie without jurisdiction and not sustainable in the eyes of law. 11. As a matter of fact, this aspect of the matter, stands covered by decision of this Court in Ram Niwas's case (supra) wherein the Court while examining the identical issue held:- "6. ............If the section is read without referring to the proviso then it simply says that an application for inclusion or a new route or routes or a new area or altering the route or routes or area covered by the permit by increasing the number of trips, all these contingencies, shall be treated as an application for the grant of a new permit. Therefore, in the case of extension if the holder moves an application for inclusion or exclusion or extension or variation or curtailment of the route or routes then in such contingency it shall be treated to be an application for grant of a new permit. But the first proviso to sub-section (3) of Section 80 of the Act of 1988 says that it shall not necessarily be treated as an application made by the holder of stage carriage permit who provides the only service on any route to increase the frequency of the service so provided without any increase in the number of vehicles. It means that if a single operator is operating on that route and he requests for increasing the frequency of service and makes an application to that effect then the increasing the frequency to that applicant on an application made by him that application will not be treated as an application for grant of a new permit. But in the another contingency i.e. if a variation or extension is sought then it is covered by the second proviso. But in the another contingency i.e. if a variation or extension is sought then it is covered by the second proviso. In the second proviso clause (I) deals with variation and clause (ii) says that in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometers. The simple grammatical interpretation of clause (i) of the second proviso is that in case of a stage carriage permit holders moves an application for variation of his permit then the first thing is that the termini shall not be altered and the distance, which can be varied shall not exceed 24 kms. That means that to the extent of 24 kms. from the termini can be varied. The ceiling is 24 kms. No variation will be permitted beyond 24 kms. The idea is that the stage carriage permit holder can be given a variation in his route upto the maximum extent of 24 kms. It does not mean that 24 kms. variation can be given at any number of times. If such construction is put on this clause then that would amount to frustrating the purpose of the provision. The very fact that one point is fixed i.e. termini and from that a deviation can be given only to the extent of 24 kms. Therefore, the ceiling of 24 kms. cannot be lost sight of. The maximum deviation which can be given is of 24 kms. and not beyond that. It is different that the deviation can be given in a piece meal like that 10 kms. at one time and 10 kms. at another time and 4 kms. at other time. That means that the variation can be given at a number of times but the maximum limit is 24 kms. It is not the intention of the legislature to mean that 24 kms. of variation can be given at any number of times. The mere fact that the legislature has chosen the word that variation shall not exceed 24 kms. from the termini, that means that from either of the termini the stage carriage permit holder can get variation/extension to the maximum limit of 24 kms. and not beyond that................ of variation can be given at any number of times. The mere fact that the legislature has chosen the word that variation shall not exceed 24 kms. from the termini, that means that from either of the termini the stage carriage permit holder can get variation/extension to the maximum limit of 24 kms. and not beyond that................ Therefore, if sub-section (3) is read with the second proviso it would mean that in the normal course if any condition of the permit is varied like inclusion or exclusion of some area and increasing the number of trips and application for curtailment of the route then such variation/extension upto extent of 24 kms. that will not be treated to be a new permit. Thus, a reading of sub-section (3) with clauses (i) and (ii) of second proviso would show that the variation and extension upto the limit of 24 kms. from the termini is permissible and that would not amount to grant of a new permit. This proviso is an exception to sub-section (3) and this will only be applicable when extension or variation is to the extent of 24 kms........" xxxxxxx (Emphasis supplied) 12. There is yet another aspect of the matter. As per second proviso, variation and extension within the limit prescribed could be made by the Transport Authority only after being satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route so varied or extended or any part thereof. It is noticed that in Writ Petition No. 9584/18 while granting the extension in respect of the route Bikaner to Ratangarh (148 kms.), the inclusion/extension allowed is of three routes in the length of 172 kms., whereas, in respect of the selfsame route, in Writ Petition No. 9604/18, the inclusion/extension granted is of five routes in the length of 309 kms. There is nothing on record suggesting that while granting the variation of the permits as aforesaid, the authority has recorded its satisfaction that for the public convenience it is necessary to grant the inclusion as prayed for and it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof. Thus, the action of the STA/RTA in granting inclusion/extension dehors the provisions of subsection (3) of Section 80 of the Act is ex facie illegal and arbitrary. 13. It is true that if an alternative and efficacious remedy is available to the petitioner under the relevant statute, the High Court would not ordinarily interfere invoking its extraordinary jurisdiction under Article 226 of the Constitution of India. But then, it is also equally well settled that it is essentially a rule of policy, convenience and discretion rather than rule of law. As laid down by a Constitutional Bench of the Hon'ble Supreme Court in the matters of "Calcutta Discount Company Limited v. Income Tax Officer, Companies District, I and Ors.",: AIR 1961 SC 372 and "A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani & Ors.", AIR 1961 SC 1506 , where there is complete lack of jurisdiction in the authority to take action impugned, it would not be appropriate for the High Court to refuse the relief on the ground of availability of alternative remedy. In the instant cases, as noticed above, the action of the STA/RTA in entertaining and granting the application of the private respondents herein seeking extension/inclusion of the routes in the length beyond 24 kms. as also in permitting the alteration of the termini of the route, is ex facie without jurisdiction and thus, this court is not inclined to non-suit the petitioners on the ground of availability of alternative remedy of appeal/revision under the Act. 14. In Arjun Ram's case (supra), learned counsel appearing for the petitioner conceded that alternative remedy is available and withdrew the petition and thus, the said order passed not deciding any issue, cannot be considered to be a binding precedent. 15. But then, learned counsel appearing for the private respondents is justified in contending that the petitioner Mool Singh in Writ Petition No. 9584/18 and 9604/18, while questioning the order passed by the STA/RTA granting inclusion/extension of routes granted in favour of the respondents cannot be permitted to retain the benefits of similar order passed by the STA granting extension of the route in his favour beyond 24 kms. and therefore, such order passed by the STA in favour of the petitioner Mool Singh also deserves to be quashed and set aside. 16. In view of the discussion above, the writ petitions succeed, the same are hereby allowed. and therefore, such order passed by the STA in favour of the petitioner Mool Singh also deserves to be quashed and set aside. 16. In view of the discussion above, the writ petitions succeed, the same are hereby allowed. The orders impugned passed by the STA/RTA in granting inclusion/extension of the routes in favour of the private respondents as also the inclusion/extension of the routes granted in favour of Mool Singh, the petitioner in Writ Petitions No. 9584/18 and 9604/18, beyond the permissible limits as provided by second proviso to sub-section (3) of Section 80 are quashed. The permits originally granted to the private respondents and the petitioners in respect of the specified notified routes shall remain valid and operative for the period specified in the permit. No order as to costs.