Himachal Pradesh High Court
Anand Moudgil vs The Chairman-State Transport ... on 2 November, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.3741 of 2020 Reserved on: 29th October, 2020 Decided on: 2nd November, 2020 .
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Anand Moudgil .....Petitioner Versus The Chairman-State Transport Authority of Himachal Pradesh .....Respondent
------------------------------------------------------------------------------------- Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting? 1 Yes For the Petitioner: In person.
For the Respondent: Mr. Ashok Sharma, Advocate General with Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Additional Advocates General and Mr. Bhupinder Thakur, Ms. Seema Sharma & Mr. Yudhvir Singh Thakur, Deputy Advocates General.
(Through Video Conference)
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Jyotsna Rewal Dua, Judge Application of the petitioner to ply various Stage Carriage Routes was rejected by the respondent, hence, he has preferred instant writ petition.
1 Whether the reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 02/11/2020 20:20:58 :::HCHP 22. The petitioner in 2011 applied for following Stage Carriage Route Permits:-
(i). Shimla to Manali via Bilaspur-Ghumarwin-
.
Hamirpur-Jawalaji-Kangra-Dharamshala.
(ii). Shimla to Dharamshala via Bilaspur-
Ghumarwin-Hamirpur-Jwalaji-Kangra- Dharamshala.
(iii). Shimla to Parwanoo via Solan and vice versa.
(iv). Manali to Shimla via Dharamshala-Kangra-
Jawalaji-Hamirpur-Ghumarwin-Bilaspur.
(v). Dharamshala to Shimla via Kangra-Jawalaji-
Hamirpur-Ghumarwin-Bilaspur.
(vi). Parwanoo to Shimla via Solan and vice versa.
The application was rejected by Regional Transport Authority on 13.06.2012. CWP No.8498 of 2013 filed by the petitioner was disposed of by this Court granting liberty to the petitioner to appeal against the order. Appeal No.35 of 2013 preferred by the petitioner was disposed of by the State Transport Appellate Tribunal on 30.07.2014 by directing STA to consider the application afresh alongwith those filed by the petitioner pursuant to order dated 15.07.2014. The STA passed orders on 17.09.2014. On request of petitioner, he was once again granted opportunity of hearing before STA on 23.11.2019.
Application of petitioner was finally rejected by the respondent vide order dated 23.11.2019 on the grounds:-
::: Downloaded on - 02/11/2020 20:20:58 :::HCHP 32(i). Transport policy formulated in the year 2004 prescribed that all new routes identified in future will have at least 60% rural and interior roads for grant of Stage .
Carriage Permits. No route permit will be granted for a route, which has more than 40% National/State Highway.
All the Stage Carriage Route Permits applied for by the petitioner were completely on National/State Highways.
Therefore, his application could not be allowed.
2(ii).
In CWP No.7295 of 2012, titled Ajay Parihar Versus State of HP & Ors, following interim order was passed on 20.08.2012:-
"There will be a direction to respondent No.1, 2 & 4 not to grant any route permits, for which applications have not been called for by the RTAs. In other words, without the State or RTA concerned first notifying route permit, there shall not be any grant of route permits as suggested or requested by operators."
While deciding the writ petition finally on 18.05.2016, it was held that the Regional Transport Authorities were arbitrarily indulging in dolling out route permits and such flagrant abuse and misuse of power cannot be countenanced. These authorities were not conferred or vested with any discretionary powers to do so and were required to strictly adhere to the procedure prescribed in the Himachal Pradesh Motor Vehicle Rules, ::: Downloaded on - 02/11/2020 20:20:58 :::HCHP 4 1999. It will be apt to reproduce following relevant paras from the judgment:-
"11. Unfortunately these principles have been violated in wholesome in the case in hand, whereby Regional Transport .
Authority has arbitrarily indulged in dolling out route permits.
Such flagrant abuse and misuse of power cannot be countenanced. As a matter of fact, the Regional Transport Authority was not even conferred or even vested with any discretionary power and was thus required to have strictly adhered to the procedure as prescribed in the Rules.
12. Therefore, when an action is taken in furtherance of explicit power given by a statute, the legitimacy of invoking such power shall depend entirely upon the extent of achieving net and objective for which the statute enables the exercise of such power.
13. It is more than settled that law cannot be administered with an evil eye or with an unequal hand or for an oblique or unworthy performance and the arms of this court will be long enough to reach out and strike down such a view with a heavy hand.
14. The Regional Transport Authority, more particularly, the Regional Transport Officer could not have abused his/their power and trust under the camouflage of performance of their public duty and thereby in an arbitrary and illegal manner allotted route permits, that too by receiving suo motu applications in utter disregard and gross violation of the procedure contemplated under the Rules.
15. It needs to be reiterated that public offices, both big and small, are sacred trusts. Such offices are meant for use and not abuse and in case repositories of such offices surpass the rule, then the law is not that powerless and would step in to quash such arbitrary orders.
16. Respondent No.4, being a creation of statute, is admittedly a State within the meaning of Article 12 of the Constitution of India and cannot, therefore, act like a private individual, who is free to act in a manner whatsoever he likes, unless it is interdicted or prohibited by law. It is settled that the State and its instrumentalities have to act strictly within the four corners of law and all its activities are government by Rules, regulations and instructions. It is more than settled that whenever a statutory authority is required to do a thing in a particular manner, then the same must be done in that manner or not at all.
18. From the discussion above, it is manifest that the entire procedure as adopted by the respondents stands vitiated on account of not following the mandatory procedure as prescribed under the Rules. Absence of power apart, such exercise of the respondents is fraught with danger of being ::: Downloaded on - 02/11/2020 20:20:58 :::HCHP 5 activated by extraneous considerations. The action of the respondents, to say the least, is totally arbitrary.
19. In ordinary circumstances, this court would have cancelled all the route permits, but since petitioner too supposedly is a beneficiary of such grant in the past (as observed earlier by this court vide its order dated 15.11.2012), this court instead .
directs respondent No.4 to re-invite the applications for grant of route permits strictly as per procedure prescribed under the Rules within a period of four weeks from today. Till that time, arrangement as continuing as on date shall be continued."
To comply with the directions issued in the judgment in Ajay Parihar's case, supra, the respondent on 12.09.2014 constituted Route Formulation Committees at District Level and at Sub-Division Level for Stage Carriage.
The Government of Himachal Pradesh has proposed to identify routes for plying of private bus operators and has notified a procedure in this regard. Petitioner has repeatedly submitted suo-moto applications on his own for grant of Stage Carriage Route Permits. Since these applications did not comply with the directions issued in the afore-extracted judgment and the provisions of Section 68(3)(ca) of the Motor Vehicle Act, 1988, therefore, the same were rejected. Section 68(3)(ca) reads as under:-
"[(ca) Government to formulate route for plying stage carriage; and]"
3. The petitioner appearing in person submits that reliance placed by the respondent on Transport Policy, 2004 for rejecting his application for grant of Stage Carriage ::: Downloaded on - 02/11/2020 20:20:58 :::HCHP 6 Route Permits is wholly misplaced as it is the Transport Policy, 2014, which would govern the fate of his applications. He further submitted that the interim order .
dated 20.08.2012 passed in CWP No.7295 of 2012 stands automatically vacated upon decision of the writ petition on 18.05.2016. Therefore, his application could not have been rejected on the ground that it was submitted by him suo-moto. His last contention is that the judgments passed by the Hon'ble Apex Court in Pancham Chand and others Versus State of Himachal Pradesh and others, 2008 (7) SCC 117 and Mithilesh Garg Versus Union of India and others, (1992) 1 SCC 168, have been wrongly not considered by the respondent. These judgments clearly apply to the case of the petitioner and thus, makes him entitled to apply for Stage Carriage Route Permits. Rejection of his application vide impugned order is not in consonance with law.
4. Learned Deputy Advocate General submitted that both the Transport Policies, i.e. 2004 as well as 2014, contain a stipulation that new routes identified in future will have to have at least 60% rural and interior routes for grant of Stage Carriage Permits. Petitioner has not disputed ::: Downloaded on - 02/11/2020 20:20:58 :::HCHP 7 this position. He has not even challenged Transport Policies either of 2004 or 2014. No rejoinder to the reply has been filed by him. Transport Policy 2014 has been placed by him .
on record of the case. Relevant extract from this policy is reproduced hereunder:-
"6.1 Stage Carriage Passenger Transport:
An efficient public transport is the need of a developing economy and its people. With the rising incomes, opening of new areas with development of roads, and industrial and tourism development; need for movement has risen manifold.
The growth of passenger transport facilities have unfortunately not kept pace with the rising demand which has lead to the problems of overloading and use of contract carriage and private vehicles to meet the unmet demand. Our review of the current state of affairs in this segment shows that the passenger transport sector suffers from unclear and fragmented responsibilities for different aspects of the supply management of sector services and infrastructure, inadequate resource mobilization and suboptimal utilization of capacity. This has lead to wastage of time and money in moving people, high opportunity cost of resources used to maintain or expand infrastructure capacity or to subsidize certain services, poor safety outcomes causing human sufferings, economic loss and increase in inequalities, and adverse environmental impacts caused due to unplanned vehicular movement and inefficient use of non-renewable energy resources.
The policy of 60:40 will be followed in the formation of new routes and the priority will be given in allocation of permits to ex-servicemen, cooperative societies, women and unemployed people.
The policy initiatives in this segment are:
a) A process of identification of roads, where either no services have been provided or are under served, will be done and an assessment of routes where the problem of overloading 7 exists will be completed within the next six months. After this data is available, routes will be identified for publication under section 68(ca) of the Motor Vehicles Act. Private sector participation will also be solicited along with HRTC;
b) Route planning exercise using the latest techniques used internationally will be done to rationalize the operation of buses and match the services with passenger demand;
c) Introduction of latest luxury bus services within and outside the State including travel by air conditioned buses ::: Downloaded on - 02/11/2020 20:20:58 :::HCHP 8 within the State on fares marginally higher than the normal passenger fare. For encouraging a trend towards this and making such operation economically viable, appropriate tax and non-tax incentives will be given;
d) Encourage the use of latest Information Technology tools including vehicle tracking devices in both public as well as .
private sector transport services to ensure timely service delivery and real time Passenger Information System (PIS);
e) It shall be the endeavour of the Govt. to promote seamless and cashless travel across the modes by introducing pre- paid smart cards based systems. Multi-utility smart card combining all transport needs will be explored within the next six months and piloted in the State;
f) While strengthening the HRTC remains a priority, appropriate performance benchmarks will be developed to judge the performance of the Corporation. The Corporation will ensure provision of timely delivery of services at various points. For doing so, it shall undertake a comprehensive planning process which combines route planning, travel demand, stake holder's consultations and technological interventions with engineering aspects.
g) Today, a time has come when the HRTC could strive for a rbrand image that clearly presents their services as a modern, efficient, reliable, convenient, comfortable and safe transport. Information flow to the travelling public will be improved both on quality and quantity terms so that a passenger gets real time data with regard to movement of each and every bus. Suitable display monitors will be installed in all the bus stands, important boarding and de-
boarding points and through live data on its website;
h) For matters relating to allotment of new routes to the private sector, comprehensive guidelines will be developed to handle issues relating to modification of routes, changes in 8 time table, transfer of permits, and deposit of permits etc. so that clarity and transparency is maintained in disposal of such requests;
i) New services will be added to provide to and fro 'last mile connectivity' between passenger's homes and bus terminals. Late night and early morning availability of such services shall be ensured."
Petitioner has not even disputed that six Stage Carriage Route Permits applied for by him are all 100% on National/State Highways. This ground alone is sufficient to reject his application.
::: Downloaded on - 02/11/2020 20:20:58 :::HCHP 9Further the order dated 20.08.2012 passed in CWP No.7295 of 2012 had directed the respondent not to grant any route permits for which the applications were not .
called for by the Regional Transport Authorities (RTAs). It was clearly directed in the order that RTA concerned has to first notify the route permit. Route Permits were not to be granted on the suggestion or request of any operator. This position was not disturbed in para 19 of the final judgment dated 18.05.2016 passed in CWP No.7295 of 2012. As per the reply, the respondent has now constituted Committees at District and Sub-Division level for Stage Carriage Route Permits and has evolved a procedure for identification of bus routes. It is not the case of the petitioner that six Stage Carriage Route Permits were identified or notified by the respondent. Petitioner had applied for these route permits on his own. Being suo-moto application, it was rightly rejected by the respondent in light of order dated 20.08.2012 and judgment dated 18.05.2016 delivered in CWP No.7295 of 2012 and subsequent steps taken by the respondent.
The judgments cited by the petitioner in the cases of Pancham Chand and Mithilesh Garg, supra, are in ::: Downloaded on - 02/11/2020 20:20:58 :::HCHP 10 different context altogether. These do not pertain to the issue in hand.
We, therefore, find no infirmity in the impugned .
order rejecting the application of the petitioner for plying six Stage Carriage Routes. The writ petition is, therefore, without any merit and is dismissed accordingly alongwith pending miscellaneous application(s), if any.
(Tarlok Singh Chauhan)
r Judge
(Jyotsna Rewal Dua)
November 02, 2020 Judge
Mukesh
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