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Madhya Pradesh High Court · body

2021 DIGILAW 167 (MP)

Ritesh Khandelwal v. State of M. P.

2021-02-17

VIVEK RUSIA

body2021
ORDER : Vivek Rusia, J. 1. The petitioner has filed the present petition being aggrieved by the order dated 16.10.2019 passed by the respondents No. 1. Regional Transport Authority (RTA), Indore whereby timing in the Stage Carriage Permit (SCP) of respondent No. 2 has been changed. 2. Brief facts of the case are as under: The petitioner is holding the regular Stage Carriage Permit No. SCP-156/2016 for the route - Indore to Kukshi via Manpur, Dhamnod, Khalghat and Manawar for one return trip daily for the period from 1.1.2017 to 31.12.2021. Likewise, respondent No. 2 is also holding the regular Stage Carriage Permit No. SCP02/2016 for the route - Indore to Manawar via Manpur, Dhamnod, Khalghat one return trip daily for the period from 4.4.2016 to 2.4.2021. Respondent No. 2 submitted an application before respondent No. 1 seeking change in the timing of the permit SCP No. 02/2016. The petitioner submitted an objection on 28.8.2019 raising various objections including the authority of respondent No. 1 to pass any order in respect of change of timing and review its own order. Vide impugned order dated 16.10.2019, respondent No. 1 has allowed the application of respondent No. 2 and changed the timing which is prejudicing and causing immense loss to the petitioner. Being aggrieved by the aforesaid order, the petitioner approached the State Transport Appellate Tribunal (STAT), Gwalior on 7.12.2019 by way of Revision Petition No. 328/2019. Later on, the petitioner filed an application for withdrawal of the Revision with the liberty to approach again. Vide order dated 1.10.2020 learned STAT has permitted the petitioner to withdraw the revision. Thereafter, the petitioner filed the present petition before this Court. 3. The petitioner is assailing the impugned order mainly on the ground that respondent No. 1 has no authority under the Motor Vehicles Act, 1988 and the Rules made thereunder to change the timing in the existing permit. For the sake of arguments even if it is permissible, then it is altogether a new permit for which no route was formulated under the provisions contained in Rule 72(3) of Motor Vehicles Rules. The application filed by respondent No. 2 was not maintainable as no reason has been assigned for a change of timing in the permit. The impugned order is illegal and invalid in view of the provisions contained in 80(3) of the Motor Vehicles Act, 1988. The application filed by respondent No. 2 was not maintainable as no reason has been assigned for a change of timing in the permit. The impugned order is illegal and invalid in view of the provisions contained in 80(3) of the Motor Vehicles Act, 1988. In support of the argument, learned counsel appearing for the petitioner has placed reliance over the judgment passed by the co-ordinate Bench of this Court in the case of M/s. Trivedi Bus Service V/s. Transport Department & others (W.P. No. 14117/2019 decided on 20.2.2020) in which similar controversy has been put to rest by holding that sub-section (3) of Section 80 talks about change of the condition of the permit it does not include change of timing once determined or approved by the Road Transport Authority (RTA). Clause (xxi) of Section 72(2) of the Motor Vehicles Act has no application in the said case. The co-ordinate Bench also rejected the objection in respect of the availability of the remedy of filing the revision petition. 4. After notice, respondent No. 1 has filed the return objecting to the maintainability of the writ petition for want of availability of alternate remedy as provided in Section 90 of the Motor Vehicles Act. The petitioner has availed the remedy of filing the revision but withdrew the same, therefore, he is not permitted to approach this Court and that too without explaining the delay of almost one year in challenging the impugned order. However, during the arguments, learned Penal Lawyer has admitted that there is no dispute in respect of a similar issue decided by this Court in the case of M/s. Trivedi Bus Service (supra), hence no reason to oppose the writ petition on the legal issue by the state. learned Penal Lawyer submits the petitioner is estopped to approach this court after availing the remedy of Revision before State Transport Appellate Tribunal. 5. Respondent No. 2 has also filed the return in supporting the impugned order by raising the issue of maintainability of writ petition for want of alternate remedy of appeal u/s. 89 and remedy of revision u/s. 90 of the Motor Vehicles Act. Ms. 5. Respondent No. 2 has also filed the return in supporting the impugned order by raising the issue of maintainability of writ petition for want of alternate remedy of appeal u/s. 89 and remedy of revision u/s. 90 of the Motor Vehicles Act. Ms. Mini Ravindran, learned counsel appearing for respondent No. 2, elaborates that if the impugned permit is treated to be a new permit, then the petitioner is having remedy of appeal u/s. 89(1)(b) of the Motor Vehicles Act which stipulates that any person aggrieved by any variation of the conditions of the permit may file an appeal and if the appeal is not maintainable, then the petitioner is having remedy of filing revision u/s. 90 of the Motor Vehicles Act before the STAT which he availed but withdrew and approached this Court. Therefore, this petition is not maintainable and liable to be dismissed. 6. On legal issue, Ms. Mini learned counsel submits that while examining the power of review of Regional Transport Authority in the matter of M/s. Trivedi Bus Service (supra) certain other relevant provisions of the MV Act and Rules have not been considered by the coordinate bench like 72 of the Act in which the RTA subject to the provisions contained in Section 71 may on an application submitted under section 70 grant a Stage Carriage Permit or with such modification as it deems fit or refuses to grant such permission. Clause (xxi) of sub-section 2 of Section 72 provides that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority and as per Clause (xxii) the RTA may vary the conditions of the permit. Therefore, these provisions permit the change of conditions i.e. timing of the permit. It is further submitted that rule 77(iii)(b) of M.P. Motor Vehicles Rules, 1994 gives the power of review to the Regional Transport Authority with the aid of Entry 17 of Rule 145 which prescribes fees payable for change of timing, therefore, change of timing is permissible and that is why the Government has provided the fees on an application to be filed for a change of timing. The aforesaid provisions have not been considered in the case of Trivedi Bus Service (supra), hence the said judgment may be declare per incuriam or refer to a larger bench. Therefore, the petition is liable to be dismissed. The aforesaid provisions have not been considered in the case of Trivedi Bus Service (supra), hence the said judgment may be declare per incuriam or refer to a larger bench. Therefore, the petition is liable to be dismissed. I have heard and perused the record. 7. The petitioner and respondent No. 2 both are having an independent Stage Carriage Permit. The petitioner is having the permit for the route from Indore to Kukshi one trip daily and earlier, respondent No. 2 was granted permit from Indore to Manawar with departure at 16.00 hours from Indore and departure from Manawar at 11.45 hours in the return trip. For which there was no clash of timing between the petitioner and respondent No. 2. But after some time Respondent, No. 2 submitted an application seeking a change in the timing in the existing Stage Carriage Permit No. 02/2016. The petitioner has submitted the objection, but that was not considered and vide order dated 16.10.2019 application filed by respondent No. 2 has been allowed by changing in the departure time from 16.00 hours to 9.55 hours from Indore and 13.00 hours from Manawar (in return) which is clashing with the timing of permit of the present petitioner. The details of the new timing are as under : Indore Manpur Dhamnod Khalghat Manawar Petitioner 10.15 11.05/11.07 12.00/12.05 12.15/12.17 13.2 Respondent No. 2. 9.55 11.10/11.15 11.55/1200 12.10/12.15 13 20 M. before 5/8 M. after 5 M. before 5/2 M. before 20 M. before Hence the petitioner has protested in respect of power exercised by the respondent in entertaining the review application. It is settled law that the authority gets the power of review only by way of the statute and in absence of any such power of review, the same cannot be exercised. So far as provisions of Section 72 of the Motor Vehicles Act are concerned, this Court in the case of Trivedi Bus Service (supra) has considered and held that such provisions do not confer the power of review. The provisions of Section 80(3) have also been considered and it has been held that the nature of conditions amenable to variation under sub-section (3) of Section 80 does not include change of time-table determined by the Regional Transport Authority, therefore, Clause (xxi) of Section 72(2) has no application to the controversy involved in the said case. 8. The provisions of Section 80(3) have also been considered and it has been held that the nature of conditions amenable to variation under sub-section (3) of Section 80 does not include change of time-table determined by the Regional Transport Authority, therefore, Clause (xxi) of Section 72(2) has no application to the controversy involved in the said case. 8. So far as the last contention of respondent No. 2 is that Entry 17 of Rule 145 of the Motor Vehicles Rules prescribes fee for change of timing is concerned, although fee has been prescribed but there has to be an enabling provision under the Act and the Rules for changing of time in the existing permit. Even if the fee is prescribed, but there is no power conferred to the authority to entertain the application for a change in the timing. The schedule of the fee does not give power to the authority to pass any order in respect of change of timing. 9. For the sake of repetition, I would like to add my view to the issue raised by the petitioner in this case. That section 71 deals with the procedure to be adopted by the Regional Transport Authority in considering for Stage Carriage Permit under subsection (2) of 72 the Regional Transport Authority shall refuse to grant Stage Carriage Permit if the time table furnished likely to be contravened but before such refusal, an opportunity shall be given to amend the time table, hence amendment in the time table is permitted before grant of Stage Carriage Permit not after its issuance. Section 72(2)(v) also gives power to the Regional Transport Authority allow such deviation in the approved Timetable in the permit but not on the application filed by the permit holder or objector. 10. That section 80 of the Motor Vehicles Act which prescribes the procedure, for applying for the grant of permits timing That section 80(3) says that an application to vary conditions of any permit (others than temporary permit) for the inclusion of new rout or new area and in case of Stage Carriage Permit increase of the number of trips or extension or curtailment of rout shall be treated as an application for a new permit. Hence this section will also not help respondents No. 2 because this also does apply to change in the timing in the current Stage Carriage Permit. Hence this section will also not help respondents No. 2 because this also does apply to change in the timing in the current Stage Carriage Permit. Therefore, there is no substance in the ground raised by respondent No. 2. Hence, I have no reason to take a different view from the view already taken by the co-ordinate Bench of this Court in the case of Trivedi Bus Service (supra). 11. Respondent No. 2 is having a permit for the period from 4.4.2016 to 2.4.2021 and it means, it has only a month is left to expire. The petitioner submitted the objection to the application submitted by respondent No. 2 and the Regional Transport Authority by order dated 16.10.2019 allowed the application of respondent No. 2 for change in the timing. Against the said order, the petitioner preferred a revision on 7.12.2019 which was registered as Revision No. 328/2019. Said revision remained pending for almost one year. On 1.10.2020 the petitioner filed an application for withdrawal of the revision and the STAT has permitted him to withdraw the revision. Copy of the application for withdrawal of the revision and the order of the State Transport Appellate Tribunal permitting him to withdraw the revision both are not before this Court, therefore, the reasons for withdrawal of the revision and whether the State Transport Appellate Tribunal has granted liberty to approach this court is not known to this Court. As per the law laid down by the Apex Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks reported in (1988) 8 SCC 1, when the order is passed without authority, the writ petition is maintainable, but the remedy to appellate or revisional authority never gets barred. In the present case, the revision was also maintainable if filed within 30 days from the date of grant of a permit and it was availed by the petitioner. The State Transport Appellate Tribunal has jurisdiction to entertain the revision in a case where the order passed by the Regional Transport Authority is illegal or improper. It is not the case of the petitioner that he was remedy less and approached this Court by way of the writ petition. The objection was filed on 15.10.2019. It appears that on the basis of the judgment passed by this Court in the case of Trivedi Bus Service (supra), the petitioner has filed the present petition. It is not the case of the petitioner that he was remedy less and approached this Court by way of the writ petition. The objection was filed on 15.10.2019. It appears that on the basis of the judgment passed by this Court in the case of Trivedi Bus Service (supra), the petitioner has filed the present petition. The petitioner could have cited the said judgment before the State Transport Appellate Tribunal also in support of his revision. But he withdrew the revision and filed the present petition. Notices were issued by this Court on 19.10.2020 and now, the period of Stage Carriage Permit of respondent No. 2 is almost over. The entire time has been lapsed in pursuing the remedy before the State Transport Appellate Tribunal, withdrawing the revision and therefore filing the present petition. Therefore, it would not be proper to relegate the petitioner to the State Transport Appellate Tribunal for filling revision petition. But looking to the conduct of the writ petition a cost of Rs. 25,000 is liable to be imposed on the petitioner. Let the cost be deposited before the MP. State Legal Services Authority. 12. Since it is concluded that respondent No. 1 has acted beyond its authority while entertaining the application for change of timing, hence impugned order dated 16.10.2019 passed by the respondents No. 1. Regional Transport Authority (RTA) is quashed resultantly the old Timetable of the Stage Carriage Permit of respondents No. 2 is hereby restored.