Himachal Pradesh High Court
Acc Limited vs The State Of Himachal Pradesh And Others on 19 November, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 10142 of 2011 with
.
CWP's No. 7862, 7882 and 7901 of 2012
Decided on: November 19, 2018
________________________________________________________________
1. CWP No. 10142 of 2011
ACC Limited ... Petitioner
Versus
The State of Himachal Pradesh and others ...Respondents
2. CWP No. 7862 of 2012
Rania Ram Sharma and others ... Petitioners
Versus
State of Himachal Pradesh and others ...Respondents
3. CWP No. 7882 of 2012
Sanjay Sharma and others ... Petitioners
Versus
State of HP and others ... Respondents
4. CWP No. 7901 of 2012
Raj Kumar and others ... Petitioners
Versus
State of Himachal Pradesh and others ...Respondents
________________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
________________________________________________________________
CWP No. 10142 of 2011
For the petitioner: Mr. K.D. Sood, Senior Advocate with Mr.
Het Ram Thakur, Advocate.
For the respondents: Mr. S.C. Sharma, Additional Advocate
General with Mr. Amit Kumar, Deputy
Advocate General, for respondents No.1
to 4.
Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 24/11/2018 22:56:02 :::HCHP
-2-
Mr. Ramakant Sharma, Senior Advocate
with Mr. Basant Pal Thakur, Advocate,
for respondent No.5.
.
Mr. J.L. Bhardwaj, Advocate, for
respondent No. 6.
None for respondent No. 7.
CWP No. 7862 of 2012
For the petitioners: Mr. B.C. Negi, Senior Advocate with Mr.
Pranay Pratap Singh, Advocate.
For the respondents: Mr. S.C. Sharma, Additional Advocate
General with Mr. Amit Kumar, Deputy
Advocate General, for respondents No.1
to 3.
Mr. K.D. Sood, Senior Advocate with Mr.
Het Ram Thakur, Advocate, for
respondent No.4.
Mr. Ramakant Sharma, Senior Advocate
with Mr. Basant Pal Thakur, Advocate,
for respondent No.5.
CWP No. 7882 of 2012
For the petitioners: Mr. Sanjeev Bhushan, Senior Advocate
with Ms. Abhilasha Kaundal, Advocate.
For the respondents: Mr. S.C. Sharma, Additional Advocate
General with Mr. Amit Kumar, Deputy
Advocate General, for respondents No.1
to 3.
Mr. K.D. Sood, Senior Advocate with Mr.
Het Ram Thakur, Advocate, for
respondent No.4.
Mr. Ramakant Sharma, Senior Advocate
with Mr. Basant Pal Thakur, Advocate,
for respondent No.5.
CWP No. 7901 of 2012
For the petitioner: Mr. Sunil Mohan Goel, Advocate.
::: Downloaded on - 24/11/2018 22:56:02 :::HCHP
-3-
For the respondents: Mr. S.C. Sharma, Additional Advocate
General with Mr. Amit Kumar, Deputy
Advocate General, for respondents No.1
.
to 3.
Mr. K.D. Sood, Senior Advocate with Mr.
Het Ram Thakur, Advocate, for
respondent No.4.
Mr. Ramakant Sharma, Senior Advocate
with Mr. Basant Pal Thakur, Advocate,
for respondent No.5.
Mr. Rajnish Maniktala, Advocate, for
respondent No. 6.
________________________________________________________________
Sandeep Sharma, J. (Oral)
Since, common questions of law and facts are involved in all these petitions, same were tagged together and are being disposed of by this common judgment.
2. By way of CWP No. 10142 of 2011, filed under Art. 226 of the Constitution of India, petitioner i.e. ACC Limited, approached this court mainly praying for the following reliefs:
"a. Direct respondents 1 to 4 to ensure free egress and ingress and facilities in the petitioner unit in Barmana, Tehsil Bilaspur, District Bilaspur, H.P. and allow transportation of its raw-material, cement and clinker in trucks/multi-axle trucks hired by them from other unions or private parties or its own trucks to the extent respondent No. 5 union is not able to supply as presently there is shortage of 480 trucks;
b. Direct respondents No.1 to 3 that respondents 5 to 7, its members, workers and employees not cause any interference or obstruction for the transportation of the petitioner product, raw-material within and outside the ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP -4- State of Himachal Pradesh in hired trucks or its own trucks or trucks engaged from any other source other than respondent No.5 to the extent it is not able t supply .
the trucks;
c. Direct the respondents 1 to 4 to maintain law and order and take preventive action for breach of peace and untoward incidents due to the acts of omission and commission on the part of the respondents 5 to 7; d. Director respondents 5 to 7, their employees, agents, servants and members not to interfere with the Constitutional and statutory right of the petitioner to transport its products and causing any obstruction to the petitioner companies goods and finished products within and outside the State of Himachal Pradesh in the trucks hired from any source or its own trucks;"
3. Writ petition having been filed by above named petitioner came to be tagged with CWP No. 9665 of 2011-G titled Lekh Ram Verma and another v. State of Himachal Pradesh and others,(decided on 1.5.2012) and Division Bench of this court passed following order on 24.11.2011:
"The issue raised in these two writ petitions pertains to the perennial problem cropping up periodically with regard to the transportation of goods to and from ACC factory at Barmana, Bilaspur. The promise of the Company was only to provide direct and indirect employment while setting up the cement factory. It appears the oustees and other affected persons had formed a cooperative society, but the membership was limited to the people who owned trucks. There was a restriction with regard to the maximum number of trucks ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP -5- by the members i.e. two trucks. Subsequently, it appears the society did not grant membership to all those applicants, who also came forward with the grievance that .
they are also affected parties. That issue is still pending with various authorities. In the meanwhile, the company faced the serious problem with regard to the transportation of goods. According to them, in view of the disputes and also in view of the inadequate number of trucks available with the members of the society, they are not in a position to handle their work and, therefore, it is the request of the company that they may be given a free hand to engage anybody for transportation of the goods to and from the Company.
Faced with the potential threat on the request made by the company, the members submitted that they may be granted some time to sort out the disputes and according to them the disputes of all the affected parties can be settled amongst themselves. That appears to be a genuine request. The affected parties, if so advised, has to find out the solution to settle the disputes amongst themselves lest they shall not and cannot stand in the way of the work in the factory being smoothly carried out. As suggested, one month's time is granted to the oustees and the affected parties to find out a solution amongst themselves. In case any assistance is required from the Registrar, Cooperative Society, they are free to have the intervention of that Authority as well. The disputes will include the issue on new membership, number of the trucks, type of the trucks etc. Till a resolution of the disputes is found, as above, there has to be an appropriate interim arrangement. We are informed that around 100 multi axil trucks have been purchased prior to 30th September, 2011 by some of the members. The purchase, as above, was made on the understanding that the members are free to replace their ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP -6- old trucks by multi axil trucks. There will be a direction to the Company and others to permit those multi axil trucks purchased by the members and provided with temporary .
numbers on or before 30th September, 2011 to be engaged for the transportation of the goods to and from the Company. It is made clear that no multi axil truck shall be permitted to carry load in excess of the permitted load as entered in the RC book.
There will be a direction to the RTO, Bilaspur and all the Districts through which the goods are carried and also the Superintendents of Police and all other Police personnel working in the Districts to periodically check the load to ensure that the multi axil trucks and other trucks carry the load only to the extent as entered in the RC book. To compensate the work as lost by the ordinary truck owners, the ration of two ordinary trucks to one multi axil truck shall be maintained in the matter of distribution of work. In other words, in place of one multi axil truck, two ordinary trucks shall be permitted to ply for the transportation of goods. In the case of the ordinary trucks also, they shall be permitted to carry only the load as entered in the RC book. The load that is carried by those ordinary trucks shall also be verified periodically by the Motor Vehicle Authorities and the Police, as referred to above and appropriate action shall be taken to ensure that the ordinary and multi axil trucks carry only the load to the extent permitted and as entered in the RC book.
In case after the distribution of work as above, among the multi axil trucks and ordinary trucks from amongst the members of the Cooperative Society, the Company finds that there is still work left, it is open to the company to engage the tucks owned by the affected-non- members. In the distribution of work, as above, also the ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP -7- ratio of 1:2 between multi axil trucks and the ordinary trucks shall be maintained.
There will be a direction to the Company to ensure .
that only the permitted load is put on the trucks and if not they shall also be liable for prosecution and penal consequences. In case, there is any difficulty with regard to the implementation of the orders, as above, all the parties concerned shall seek appropriate clarification from this Court only. It is further made clear that in case there is any obstruction from any quarter with regard to working arrangement, as above, there will be a direction to the Superintendents of Police of all the Districts to see that adequate and effective protection is granted to the company and the trucks plying with the load as above.
All the previous orders passed with regard to the transportation of goods to and from the ACC Barmana will stand modified to this extent.
We make it clear that this order will not stand in the way of the general body of the Society deciding to induct new members. Needless to say that the previous Resolution of the general body shall not stand in the way of the general body of the Society taking fresh decisions.
Post the case for further orders on 29th December, 2011.
All the impleadment applications are allowed and disposed of in both the writ petitions.
Authenticated copy."
4. Subsequently, other petitioners, as captioned herein above, by way of CWP's No. 7862 of 2012, 7882 of 2012 and 7901 of 2012, approached this court with almost similar relief. Main reliefs as sought in CWP No. 7862 of 2012 titled Rania Ram and ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP -8- others v. State of Himachal Pradesh and others, are being extracted herein below:
.
"i) Issue a writ of certiorari to quash proceedings dated 18-08-2012 i.e. annexure P-6 and resolution dated 31-08-
2012 i.e. annexure P-7 to the extent thy debar multi-axle trucks purchased prior to 30-09-2011 which had been functioning/operating in the society in question to be no longer used in the society in question.
ii) Issue a writ of mandamus directing the respondents not to give effect to proceedings dated 18-08-2012 i.e. annexure P-6 and resolution dated 31-08-2012 i.e. annexure P-7 to the extent they debar multi-axle trucks purchased prior to 30-09-2011 which had been functioning/operating in the society in question to be no longer used in the society in question.
iii) Issue a writ of mandamus directing the respondent No.4 to permit multi-axle trucks purchased prior to 30-09- 2011 which had been functioning/operating in the society in question to be used if in case the society in question does not permit the same to function/operate."
5. On 19.9.2012, this court having taken note of averments contained in CWP's No. 7862, 7882 and 7901 of 2012, passed following order:
"The Bilaspur District Truck Operators Cooperative Transport Society Ltd. Barmana has taken a Resolution dated 31.8.2012 to the effect that there shall be no use of multi axil trucks for the transportation and that the multi axil trucks purchased prior to 30th September, 2011 shall also not be permitted to operate. The petitioners in these cases have filed the writ petition aggrieved by the said Resolution. The issue has a chequered history and to ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP -9- some extent, we have referred the history in detailed interim order passed by this Court on 24.11.2011. It is a common order in two cases, namely, CWP No. 9665/2011 .
and CWP No.10142/2011. Only CWP No. 9665 of 2011 was disposed of. CWP No. 10142 of 2011 is still pending. Therefore, interim order dated 24.11.2011 is still in force.
In the said order, this Court issued a direction as follows:
"There will be a direction to the Company and others to permit those multi axil trucks purchased by the members and provided with temporary numbers on or before 30th September, 2011 to be engaged for the transportation of the goods to and from the Company. It is made clear that no multi axil truck shall be permitted to carry load in excess of the permitted load as entered in the RC book."
2. As far as distribution of work, it was made clear in the order that the ratio of 1:2 between multi axil trucks and the ordinary trucks shall be maintained. Still further, it was ordered that " in case, there is any difficulty with regard to the implementation of the orders, as above, all the parties concerned shall seek appropriate clarification from this Court only." That order is still in force. As far as CWP No. 10142 of 2011 is concerned, the Society is a party to the said writ petition. Only CWP No. 9665 of 2011 was disposed of by judgment dated 1st May, 2012 reserving liberty to the Society in its General Body to take appropriate decision in accordance with law.
3. So long as the interim order, referred to above, in CWP No. 10142 of 2012 is still in force, all the parties, including the Company and the Society and Operators are bound by the said order. In that view of the matter, there will be stay of operation of the implementation of the Resolution dated 31st August, 2012 taken by the Society with regard to dis-continuance of multi axil trucks.
4. Post these writ petitions along with CWP No. 10142 of 2011 on 28th September, 2012."
::: Downloaded on - 24/11/2018 22:56:02 :::HCHP- 10 -
6. After passing of order dated 19.9.2012, all the petitions, captioned herein above, are being heard together. Subsequently, .
applicant/respondent No. 5 i.e. Bilaspur District Truck Operators Cooperative Transport Society Ltd., filed CMP No. 7198 of 2015 under Rule 4, Part C of the HP High Court Writ Rules, 1997 for modification of order dated 24.11.2011, which came up for consideration before this court on 11.12.2015, when this court passed following order:
"CMP No. 7198 of 2015 in CWP No. 10142 of 2011 Heard for sometime. In this application applicant-
respondent No. 5, The Bilaspur District Truck Operators, Cooperative Transport Society Limited has sought the permission to replace its existing fleet of old trucks with new multi axle trucks, in modification of the interim order passed in the writ petition on 24.11.2011 whereby the petitioner-Company has been directed to allocate temporary numbers to multi axle trucks, around 100 in number purchased by the members of the applicant- Society prior to 30th September, 2011 and to engage the same for transportation of its goods to and fro, subject to the condition that these trucks should not carry load in excess of the permitted load as per entries in the RC book. Applicant-Society intends to replace its old fleet of trucks more than 2000 in number as per list attached to the supplementary affidavit filed by Sh. Ramesh Thakur, its President on 9.12.2015.
2. This writ petition has been filed by one of the Companies i.e. ACC Limited which has installed its cement plant under the name and style 'Gagal Cement Works' at Barmana in District Bilaspur. There are two more cement plants, namely; Ambuja Cement Plant ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP
- 11 -
installed at Darlaghat, and Jaypee Himachal Cement Plant at Bagga, in District, Solan, H.P. The trucks engaged by Ambuja Cement Plant for transportation of its goods to .
and fro from Darlaghat are being plied to its destination on Shimla-Bilaspur road and connects national highway No. 21 at Nauni, a place approximately 7-8 kilometers behind Bilaspur. The trucks carrying goods from Jaypee Himachal Cement Plant are also being plied from Bagga to Nauni via Jukhala and Brahmpukhar in District Bilaspur.
As a matter of fact, the trucks carrying goods from the cement plants at Darlaghat and Bagha joins each other at Brahmpukhar junction and thereafter being driven to Nauni and take diversion there to Punjab and Haryana side and other destinations. Similarly, the trucks carrying goods of the petitioner herein are also being driven from Barmana towards Punjab, Haryana and other destinations via Bilaspur. The trucks carrying goods from the petitioner Company also joins the trucks carrying goods of the two cement plants as aforesaid at Nauni. As a matter of fact, the trucks carrying goods from all the three cement plants join at Nauni and then can be seen being driven in the form of a convoy. Mostly, the drivers of the trucks due to lack of sensitization, particularly qua traffic rules, not allow the other users of the road to overtake the trucks being driven by them and as a result thereof the people traveling in public transport vehicles/private transport vehicles are forced to bear with smoke and dust being emanated by plying of these trucks. The plight of other users of the road, therefore, is becoming bad to worse particularly when the roads in the State mostly pass through hilly terrain. Therefore, the anxiety and concern of the Court is to protect the safety and comfort of other users of the road.
3. One should, therefore, not lost sight of the fact that allowing to ply multi axle trucks in such a large number ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP
- 12 -
on hilly terrain would obviously result in human problems multifarious in nature. This Court feels that before hearing this application any further, not only the .
applicant-respondent Society but also the petitioner Company as well as the respondent-State to come forward with their suggestions on the following:
i) The ways and means which can be resorted to, to ensure safe, comfortable and pollution free journey by the citizens traveling in their own vehicles, public transport vehicles and private transport vehicles.
ii) The ways and means which can be resorted to, to ease out the congestion/traffic jam on the roads being used by the trucks carrying the goods of the petitioner-Company.
r iii) Uniform procedure to be followed by the applicant-Society qua engagement of Drivers efficient, sensitive and having good knowledge of traffic rules to drive the trucks and the necessity of holding workshops/seminars to impart training to them periodically, particularly to sensitize them about the problems being faced by other users of the road i.e. the people traveling in public transport vehicles/private transport vehicles.
iv) The protection of environment from pollution emanates on account of driving of the trucks in such a large number.
v) How to ensure the maintenance of the roads being used for plying the trucks carrying goods to and fro from the cement plants.
vi) The possibility of fixation of time schedule day i.e. in 24 hours to ply the trucks on the road and no entry thereof after the time so fixed is over.
vii) The construction of separate bay for being used by the trucks carrying goods to and fro from the cement plants.
Besides, the above, respondent-State also to apprise this Court about the steps, if any, taken to regulate the movement of the trucks carrying goods to and fro from the cement plants to ensure the safety and comfort of the people traveling through public or private transport vehicles and other users of the road.
List on 18th December, 2015.
::: Downloaded on - 24/11/2018 22:56:02 :::HCHP- 13 -
The Ambuja and Jaypee Industries having its cement plants at Darlaghat and Bagga though are not party in the present writ petition, however, Mr. K.D. Sood, .
learned Senior Advocate who generally represents these Companies in this Court is requested to supply a copy of this order to the said Companies also and ensure that their suggestions on the above points are also placed on record on the date already fixed.
An authenticated copy to learned Additional Advocate General, Mr. K.D. Sood, learned Senior Advocate and Mr. Ramakant Sharma, learned Senior Advocate for compliance."
7. This court, after having taken note of the averments contained in the aforesaid application, formulated certain points and directed the parties concerned to place on record suggestions qua the same.
8. Today, during the proceedings of the case, learned counsel representing the parties on instructions of their respective clients, stated before this court that it has been amicably resolved inter se parties that prayer made in CMP No. 7198 of 2015 having been filed by respondent No.5, may be accepted. Mr. Ramakant Sharma, learned Senior Advocate stated that as per settlement inter se parties, old trucks in the existing fleet of the society would be permitted to be replaced by new multi-axle trucks i.e. one multi-axle truck will replace two ordinary trucks, which shall not harm or prejudice any party to the lis rather the same would help ensure the very existence and ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP
- 14 -
continuation of M/s Bilaspur District Truck Operators Cooperative Transport Society Ltd.
.
9. Mr. K.D. Sood, learned Senior Advocate, representing the ACC, states that the Company has no objection to aforesaid arrangement but M/s Bilaspur District Truck Operators Cooperative Transport Society Ltd. may be directed to strictly comply with the aforesaid agreement, because, on account of non-adherence, company shall suffer irreparable loss and injury.
He also stated that all the stake-holders may be directed to do the needful within stipulated time, failing which liberty be granted to the ACC Cement Company to make alternative arrangement for transportation of cement so that no undue hardship/financial loss is caused to the company.
10. Consequently, in view of the statement made by the learned counsel representing the parties, on the instructions of their respective clients, CMP No. 7198 of 2015 in CWP No. 10142 of 2011, having been filed by the respondent No. 5, praying therein for modification of order dated 24.11.2011, is allowed and order is modified to the extent that M/s Bilaspur District Truck Operators Cooperative Transport Society Ltd. is permitted to replace its existing fleet of old trucks by means of new multi-axle trucks in the following manner, as agreed:
(a) Two ordinary trucks engaged with the Society shall be replaced by one multi-axle truck.::: Downloaded on - 24/11/2018 22:56:02 :::HCHP
- 15 -
(b) In the cases, where one ordinary truck has been replaced by one multi-axle truck, the work to be .
allotted shall be reduced to half.
(c) In the case as referred to above, where one multi-axle truck has replaced one ordinary truck, option may be given to the owner/members to remove another old /ordinary truck, to maintain equal distribution of work.
11. However, it is made clear that to avoid inconvenience and financial loss to the ACC Company Limited, needful shall be done by all the stake-holders, especially M/s Bilaspur District Truck Operators Cooperative Transport Society Ltd., expeditiously within a period of two months.
12. Accordingly, in view of the above, all the petitions having been rendered infructuous, are accordingly, disposed of alongwith all pending applications.
(Sandeep Sharma) Judge November 19, 2018 (Vikrant) ::: Downloaded on - 24/11/2018 22:56:02 :::HCHP