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2019 DIGILAW 649 (CHH)

State of Chhattisgarh v. Ashfaq Qumar

2019-05-03

SANJAY K.AGRAWAL

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ORDER : Sanjay K. Agrawal, J. 1. In this batch of writ petitions, common question of law and fact is involved, therefore, they were heard together and are being decided by this common order. [For sake of convenience, facts as incorporated in W.P.(227) No. 900/2014 is being taken up] 2. The dispute relates to grant of inter-State permit between Ambikapur to Dhanbad via Rajpur, Balrampur, Ramanujganj one single trip daily and between Ambikapur to Daltenganj via Rajpur, Balrampur, Ramanujganj, Ranka, Gadhwaroad one single trip daily and between Vishrampur to Gadhwa Road via Ambikapur, Rajpur, Balrampur, Ramanujganj one return trip daily as there is reciprocal agreement between the State of Chhattisgarh and the State of Jharkhand with respect to plying of vehicles by inter-State carriage between the territorial limits of these two States in the year 2006 and the routes were duly formulated as per the provisions contained in Section 88(5) of the Motor Vehicles Act, 1988 (hereinafter called as "the Act of 1988") duly published in the official gazette of Chhattisgarh dated 18.4.2008. Respondent No. 1 applied for grant of permit for plying buses between Ambikapur to Dhanbad via Rajpur, Balrampur, Ramanujganj one single trip daily. After hearing the application and considering all the aspects, the State Transport Authority, Chhattisgarh, Raipur (hereinafter called as "STA") by order dated 29.1.2013 granted permit to respondent No. 1 for the said route for a period of five years from 1.4.2013 to 31.3.2018. It is pertinent to mention here that total length of route on which permit was granted is 531 Kms., out of which 110 Kms. fall within the State of Chhattisgarh and 421 Kms. within the State of Jharkhand Petitioner No. 2 herein/STA granted permit to respondent No. 1 with certain conditions and there was a pre-condition that plying of vehicle on the inter-State route will be valid only if this permit is duly countersigned by the competent transport authority of the State of Jharkhand. 3. It is the case of the petitioners/State that respondent No. 1 did not get the permit countersigned from the State Transport Authority of the State of Jharkhand despite passing of more than one year. 3. It is the case of the petitioners/State that respondent No. 1 did not get the permit countersigned from the State Transport Authority of the State of Jharkhand despite passing of more than one year. Show-cause notice was issued to respondent No. 1 asking him to furnish explanation as the State is not getting sufficient revenue due to non-plying of buses on the said route as well as the passengers are also suffering due to non-plying of buses on the said route, which was replied by respondent No. 1 stating that he has already made an application to the State Transport Authority of the State of Jharkhand on 29.10.2013 for countersigning, but it was not countersigned by the State Transport Authority of the State of Jharkhand. After considering the reply, petitioner No. 2/STA by order dated 22.2.2014 cancelled the permit granted in favour of respondent No. 1 under Section 86(1)(a) of the Act of 1988, which was challenged by respondent No. 1 before the State Transport Appellate Tribunal, Chhattisgarh, Raipur (hereinafter called as "STAT"). The STAT by the impugned order allowed the appeal and set aside the order of the STA, which have been challenged by the State in this batch of writ petitions. 4. Mr. Chandresh Shrivastava, learned Deputy Advocate General appearing for the petitioners/State, would submit that despite precondition in the permit granted to respondent No. 1 that he has to get the permit duly countersigned by the State Transport Authority of the State of Jharkhand, he did not take any steps to get the permit countersigned and sat tight over the said permit, thereby the State is not getting proper revenue due to non-plying of buses as well as passengers of that route are suffering a lot, therefore, in exercise of powers conferred under Section 86(1)(a) of the Act of 1988, permit granted in favour of respondent No. 1 has been revoked by the STA, which has wrongly and improperly been reversed by the STAT, which deserves to be set aside. 5. Mr. Shailendra Kumar Bajpai, learned counsel appearing for respondent No. 1 in W.P. (227) Nos. 5. Mr. Shailendra Kumar Bajpai, learned counsel appearing for respondent No. 1 in W.P. (227) Nos. 900/2014 and 901/2014, would submit that in order to ply the buses on the granted route, respondent No. 2 was obliged to get the said permit countersigned by the State Transport Authority of the State of Jharkhand, which he applied with some delay to the State Transport Authority of the State of Jharkhand, but the said authority did not take any decision on his application for countersigning, for which respondent No. 1 cannot be held responsible. He would further submit that respondent No. 1 has no control over the said authority and it is for that authority to make countersignature on said permit and then only respondent No. 1 can ply his bus, which cannot be held to be breach of any condition specified in Section 84 of the Act of 1988, therefore, his permit could not have been revoked by the STA, which has rightly been set aside by the STAT, as such, the writ petitions deserves to be dismissed. 6. Mr. C.J.K. Rao, learned counsel appearing for respondent No. 1 in W.P. (227) No. 902/2014, would submit that the STAT is absolutely justified in setting aside the order passed by the STA as countersigning by the State Transport Authority of the State of Jharkhand is not within the authority and control of respondent No. 1 as he has already applied for countersigning the permit granted by the STA of the State of Chhattisgarh, as such, the writ petition deserves to be dismissed. 7. I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. The dispute relates to grant of inter-State permit between Ambikapur (State of Chhattisgarh) to Dhanbad (State of Jharkhand) and two other inter-State routes between the said two States for which inter-State route has already been formulated under Section 88(5) of the Act of 1988 on mutual/reciprocal agreement between two States and notified in the official gazette on 18.4.2008, however, the time within which the inter-State permit is to countersigned by other State is not mentioned in the said reciprocal agreement entered into between two States. It is well settled that existence of an inter-State route reciprocally created by two States is a condition precedent for grant of any such permit as defined in Section 88(1) of the Act of 1988. 9. The Supreme Court in the matter of Ashwani Kumar and another v. Regional Transport Authority, Bikaner and another (1999) 8 SCC 364 : ( AIR 1999 SC 3888 ) has clearly held that the existence of a route is a condition precedent for exercise of the power under sub-section (1) of Section 88 of the Act. It was further held that inter-State route under the scheme of the Act has to be reciprocal and cannot be unilaterally created by one State or an authority in the State. 10. The correctness of the decision rendered in the matter of Ashwani Kumar AIR 1999 SC 3888 ) (supra) was doubted and it was referred to the larger Bench, which was answered by Their Lordships of the Supreme Court in the matter of A. Venkatakrishnan v. State Transport Authority, Kerala (2004) 11 SCC 20 : (AIR Online 2004 SC 345) affirming the view taken in Ashwani Kumar (supra) and held as under:-- "13. A purposive and meaningful construction, it is trite, must be given to a statute, so that it is made workable. A statute should not be construed in such a manner, which would create a vacuum. In the absence of any route being fixed in terms of an agreement, in the event it be held that an application for grant of permit for inter-State route can be entertained, the same would lead to a futile exercise. A mutual approval of the States concerned in the matter, therefore, must be held to be mandatory. In other words, the proviso, appended to sub-section (4) of Section 88 of the Act, and, consequently, it must be held that by necessary implication agreements are contemplated for creation of inter-State routes. 14. We are in agreement with the view taken by this Court in the case of Ashwani Kumar case." 11. In other words, the proviso, appended to sub-section (4) of Section 88 of the Act, and, consequently, it must be held that by necessary implication agreements are contemplated for creation of inter-State routes. 14. We are in agreement with the view taken by this Court in the case of Ashwani Kumar case." 11. In the instant case, there is no dispute that inter-State route from Ambikapur to Dhanbad and two other routes between two States have already been formulated as noticed hereinabove and for which respondent No. 1 applied for grant of inter-State permit' which the STA of the State of Chhattisgarh granted by order dated 29.1.2013 subject to certain conditions and one of the condition was that said permit has to be countersigned by the STA of the State of Jharkhand which states as under:-- ^^5-vuqKk dk ÁfrgLrk{kj >kj[k.M jkT; ds le{k ifjogu Ákf/kdkjh ls djk, tkus ds i'pkr gh okgu dk lapkyu oS/k gksxk] ,oa ,sls ÁfrgLrk{kj dh Áfr rRdky fjdkMZ gsrq bl dk;kZy; esa ÁLrqr djuk vko';d gksxkA** Thereafter, in accordance with the order dated 29.1.2013, inter-State permit was also granted in favour of respondent No. 1 on 30.3.2013 incorporating the pre-condition of countersigning by the STA of the Jharkhand which states as under:-- ^^5- vuqKk&i= dk ÁfrgLrk{kj >kj[k.M jkT; ds le{k ifjogu Ákf/kdkj ls djk;k tkuk vko';d gksxk] rRi'pkr gh okgu dk lapkyu oS/k gksxkA** It is the case of the petitioners/State that respondent No. 1 did not obtain requisite countersignature from the STA of the State of Jharkhand and for that defect issued notice on 26.10.2013 to respondent No. 1 under Section 86(1)(a) of the Act of 1988, to which respondent No. 1 replied on 29.10.2013 stating that he has already applied for countersigning by the STA of the State of Jharkhand and it is for that authority to countersign the said permit, he has no control over it, but learned STA of the State of Chhattisgarh not being satisfied with the explanation offered by respondent No. 1 revoked the permit with immediate effect under Section 86(1) of the Act of 1988, but in an appeal preferred by respondent No. 1, the State Transport Appellate Tribunal set-aside the order stating inter-alia that he respondent/licensee cannot be made responsible for not countersigning inter-State permit by the STA of the State of Jharkhand, against which, the petitioners/State have filed these writ petitions questioning these orders. 12. 12. The question for consideration would be whether Section 86(1)(a) of the Act of 1988 has rightly been invoked by the STA of the State of Chhattisgarh in cancelling/revoking inter-State permit granted to respondent No. 1 with above-stated pre-condition of countersigning by the STA of the State of Jharkhand? 13. In order to Judge the correctness of the plea raised at the Bar, it would be appropriate to notice Section 88(1) of the Act of 1988 which states as under:-- "88. Validation of permits for use outside region in which granted.-- (1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned............." A careful perusal of the aforesaid provisions would clearly show that the permit granted by the authority of any one region shall not be valid in any another region unless and until the permit has been countersigned by the authority of that particular region and permit granted in any one State shall not be valid for plying the vehicle in any other State unless countersigned by the authority of that other State or by the RTO concerned. The provisions contained in Section 88(1) of the Act of 1988 is mandatory requirement of the statute for valid inter-State carriage permit. 14. In the matter of State of West Bengal and others v. Mani Bhushan Kumar (2011) 10 SCC 147 : ( AIR 2012 SC 184 ) Their Lord-ships have clearly held that the last limb of sub-section (1) of Section 88 of the Motor Vehicles Act states that a permit granted in any one State shall not be valid in any other State unless counter-signed by the State Transport Authority of that State or by the Regional Transport Authority concerned. 15. 15. The Madhya Pradesh High Court in the matter of Madhya Pradesh State Road Transport Corporation, Gwalior v. Nirmal Kumar Chordia and others, AIR 1989 Madhya Pradesh 212 while dealing with pari materia provisions contained in Section 63(1) of the Motor Vehicles Act, 1939 and while dealing with inter-State permit has clearly held as under:-- "8.......Be it noted in this connection that the provision of countersignature in case of an inter-State permit envisaged under S. 63(1) is mandatory and non-fulfilment of that requirement renders the permit invalid and useless because the legislature has itself made an exception to the provision in the three provisos of the said section, only in the prescribed circumstances." 16. Likewise, the Mysore High Court in the matter of I. Narayanaswamy v. Regional Transport Authority and others, AIR 1971 Mysore 276 while dealing with the need of counter-signing by other State in respect of any inter-State route has clearly held that a permit granted in respect of inter-State route by the competent authority become an inter-State permit only when it is counter-signed by concerned authority of other State and held as under:-- "18. Hence, the mere grant of a permit in respect of an inter-State route by the R.T.A. having the jurisdiction under the second proviso to Section 45 does not at once make it a permit valid for the operation of the vehicle on any part of the route beyond such part of it as lies within the frontier of the State in which the authority is functioning." 17. Thus, from the aforesaid legal analysis, it flows that inter-State permit granted in one State shall not be valid in another State unless countersigned by the STA of other State and it is mandatory requirement of the statute. Inter-State permit so granted cannot be held valid and operative unless it is countersigned by STA of other State. Thus, under Section 88(1) of the Act of 1988, inter-State carriage permit granted by the authority of one State shall not be valid in other State unless the concerned authority of other State affixes its countersignature to it. The word employed in Section 88(1) of the Act of 1988 clearly indicate that until the counter-signature is secured in the inter-State permit from STA of other State, it does not become inter-State permit and would not come in existence and said permit cannot be called as valid permit at all. The word employed in Section 88(1) of the Act of 1988 clearly indicate that until the counter-signature is secured in the inter-State permit from STA of other State, it does not become inter-State permit and would not come in existence and said permit cannot be called as valid permit at all. 18. Reverting to the facts of the present case in the light of principle of law flowing from Section 88(1) of the Act of 1988 and law laid down by Their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that in the instant case inter-State permit was granted by the STA of the State of Chhattisgarh subject to condition as incorporated in the order dated 29.1.2013 as well as condition incorporated in the permit dated 30.3.2013. It would be valid only it is counter-signed by the STA of the State of Jharkhand, which was applied by respondent No. 1 after issuance of notice for cancellation of permit, but it was not countersigned by the STA of the State of Jharkhand, therefore, in view of the provisions contained in Section 88(1) of the Act of 1988, permit granted by the STA of the State of Chhattisgarh on 30.3.2013 in favour of respondent No. 1 is not inter-State permit at all as it has not been counter-signed by the STA of the State of Jharkhand. 19. Now the question would be whether an inter-State permit, which is not countersigned by State Transport Authority of the State of Jharkhand can be subjected to proceeding of cancellation under Section 86(1) of the Act of 1988? 20. Section 86 of the Act of 1988 provides as under:-- "86. Cancellation and suspension of permits.--(1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit- (a) on the breach of any condition specified in section 84 or of any condition contained in the permit, or (b) to (f) xxx xxx xxx Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation." 21. According to Black's Law dictionary, 6th edition, "Grant" means to bestow, to confer upon some or other than the person or entity which makes the grant. According to Black's Law dictionary, 6th edition, "Grant" means to bestow, to confer upon some or other than the person or entity which makes the grant. As distinguished from a mere license, a grant passes some estate or interest, corporeal or incorporeal, in the lands in which it embraces, to give or permit as a right or privilege e.g. grant of route, authority to a public carrier. 22. Thus, "Grant" must create a right in favour of grantee. The inter-State permit granted in terms of Section 88(1) of the Act of 1988 subject to countersigning by the STA of other State crates no right in favour of grantee of inter-State permit unless it is countersigned by the STA of other State and it cannot be said to be grant of inter-State permit in favour of grantee till its countersigning by other State in terms of Section 88(1) of the Act of 1988. Section 86(1) of the Act of 1988 would apply when inter-State permit granted by one State subject to countersigning by other State is actually countersigned by other State and inter-State permit comes into operation and existence. As for invoking Section 86(1) of the Act of 1988, valid and subsisting permit is sine qua non for its cancellation. 23. Falling back to the facts of the present case, though inter-State permit granted for specific route was subject to condition of counter-signing by the STA of the State of Jharkhand, which the State of Jharkhand did not counter-sign till the date of its cancellation, therefore, provisions contained in Section 86(1) of the Act of 1988 could not have been invoked by the STA of the State of Chhattisgarh to cancel inter-State permit granted in favour of respondent No. 1 which was not valid and subsisting inter-State permit for want of fulfillment of the condition of countersigning by the STA of Jharkhand. It is the case of respondent No. 1 that he has already made an application for counter-signing inter-State permit on 29.10.2013, but it has not been counter-signed by the STA of the State of Jharkhand. It is the case of respondent No. 1 that he has already made an application for counter-signing inter-State permit on 29.10.2013, but it has not been counter-signed by the STA of the State of Jharkhand. When there is inter-State agreement between two States as contemplated by Section 88(5) of the Act of 1988, countersigning of inter-State permit granted by one State cannot be opposed or refused by other State, but in the present case it was neither refused nor granted by the STA of the State of Jharkhand and could be compelled in appropriate proceedings such an application for mandamus under Article 226 of the Constitution of India. 24. In sum and substance, it is held that since inter-State permit granted by the STA of the State of Chhattisgarh in favour of respondent No. 1 on 30.3.2013 subject to countersigning by the STA of the State of Jharkhand, which was not countersigned by that authority of the State of Jharkhand, therefore, by virtue of the provisions contained in Section 88(1) of the Act of 1988, inter-State permit granted in favour of respondent No. 1 has not become operative, therefore, it cannot be cancelled in exercise of powers conferred under Section 86(1) of the Act of 1988. Therefore, initiation of proceeding for cancellation and cancellation of said inter-State permit dated 30.3.2013 are without jurisdiction and without authority of law, as such, the order passed by the STA of the State of Chhattisgarh has rightly been set aside by the State Transport Appellate Tribunal, which is affirmed not for the reasons mentioned in that order, but for the reasons assigned hereinabove. 25. As a fallout and consequence of the abovestated discussion, the writ petitions deserve to be and are hereby dismissed leaving the parties to bear their own cost(s).