Rajasthan High Court - Jaipur
Rajasthan State Road Transport ... vs R.T.A., Bikaner And Ors. on 31 March, 1995
Equivalent citations: AIR1996RAJ11, 1995(2)WLC690, 1995(1)WLN471
ORDER N.K. Jain, J.
1. By this writ petition, the petitioner seeks to quash the order dt/- 25-11-1993 passed by the Regional Transport Authority, Bikaner granting one non-temporary stage carriage permit each in favour of the respondents No. 2 and 3 on the Sangaria-Delhi inter-State route, so also the order of the same date in opening the said inter-State route may kindly be quashed and set aside.
2. In brief the facts of the case as alleged by the petitioner-R.S.R.T.C. are that petitioner-Corporation has been established and constituted in the State of Rajasthan for the purpose of providing road and transport service. It is alleged that under the reciprocal transport agreement arrived at in between the State of Rajasthan and State of Haryana, the petitioner is providing transport services on the Ganganagar-Delhi via Hanumangarh, Sangaria, Dabwali, Hisar etc. It is alleged that the respondents Nos. 2 and 3 and one Jagdish Singh submitted applications before the respondent No. 1 on 7-10-1993 and 21-10-1993 respectively for granting one non-temporary stage carriage permit each by opening a new inter-State route Sangaria to Delhi via Dabwali, Hisar without mentioning therein the necessary particulars. It is alleged that Circulation Note D/- 21-10-1993 was sent by the Secretary to the R. T. A., Bikaner saying therein that the applicants have not disclosed the complete particulars of the Sangaria-Delhi route, its overlapping by any notified route and the length of the aforesaid route has also not been shown. It is also alleged that the Secretary to the Regional Transport Authority, Bikaner thereafter under the Circulation Note dt/- 28-10-1993 stated that on 27-10-1993 all the three applicants submitted amended applications on 27-10-1993 for Sangaria-Delhi inter-State route in a length of 359 Kms. out of which a small portion in a length of 3 Kms. only lies in the State of Rajasthan and a portion in a length of 323 Kms. lies in the State of Haryana and the remaining portion of 33 Kms. lies in Delhi of the said inter-State Sangaria-Delhi route. It is further alleged that the Regional Transport Authority, Bikaner after considering the Circulation Notes, sent by the Secretary to the R.T.A., Bikaner by the order dt/- 25-11-1993 decided to open the aforesaid new Sangaria-Delhi inter-State route and granted one non-temporary stage carriage permit each to the respondents Nos. 2 and 3, however, rejected the application of Jagdish Singh for the grant of the permit without hearing the petitioner. Being aggrieved with the impugned order dt/- 25-11-1993 the petitioner has filed this writ petition on 24-3-1994.
3. Notice to show cause was issued on 19-4-1994. In pursuance to the notice, the R. T. A. respondent No. 1 has filed reply on 8-2-1995 stating that in view of Sahib Ram's case, permit can be granted by the R. T. A. and no other operator can be said to be aggrieved person. The petitioner also filed rejoinder stating that the Rajasthan portion of the route is only 3 Kms. and the provisions of the Act do not envisage of a grant of permit on a route in a length of 3 Kms. and the Regional Transport Authority has no jurisdiction rather grossly misused its power and had acted in utter violation of the provisions of the Act, in opening the route.
4. Mr. Maheshwari has raised preliminary objections about the maintainability of the writ petition. He has contended that the alternative remedy is available to the petitioner. He has also contended that the petitioner is not an aggrieved party. He has further contended that the petitioner has filed this writ petition at a belated stage and further that the petitioner did not object grant of permit on the route to some other persons.
5. Mr. Munshi has urged that the impugned order being patently illegal can be very well challenged in the writ jurisdiction and alternative remedy is no bar and that the delay of four months in filing the writ petition is not fatal when the order is without jurisdiction. He has also contended that the petitioners route is overlapped and being an existing operator on the route which is a part and parcel of the Ganganagar-Delhi inter-
State route being an effected party can challenge the impugned permit which has been issued without authority. He has also submitted that against the grant of stage carriage permit to some other persons have nothing to do with the impugned order as the procedure and consideration in the matter of grant of stage carriage permit on an inter-regional or intra-regional route is quite different which is legally required to be followed in respect of inter-State route. He further submits that against the grant of stage carriage permit, writ petition has been filed which is pending and scope part is already under challenge.
6. Having considered the submissions of Mr. Maheshwari with regard to maintainability of the writ petition, I find no substance in the preliminary objections in view of the reply given by Mr. Munshi.
7. On merits, Mr. Munshi has contended that the R. T. A., Bikaner has no jurisdiction to open or create a new route i.e. Sangaria to Delhi when there exists no agreement between the State of Rajasthan, State of Haryana and State of Delhi that too when the length of route lies in the State of Rajasthan is only 3 Kms. He has further contended that the R.T.A., Bikaner has committed a serious error of law in mis-interpreting the provisions contained in Sub-section (1) of Section 88 of the Motor Vehicles Act, 1988. He has lastly contended that the R. T. A. Bikaner while granting permit on this new route has referred to a decision of this Court given in D. B. Civil Special Appeal No. 231/1993 observing that after rejection of the special appeal there remains no hurdle in the grant of impugned permit but that was in relation to grant of permit on the existing route Ganganagar to Dabwali and not for opening of route and that appeal has nothing to do with regard to opening of this inter-State route between three States. He has submitted that the decisions given in Sahib Ram v. State, (C. W. Petition No. 1309/90) decided on 28-8-92 and S. K. Ajmera v. State Transport Authority, Gwalior (C. Spl. Appeal No. 158/92) decided on 20-5-93 are not applicable.
8. I have heard learned counsel for the parties and perused the material on record as well as the case law cited at the Bar.
9. The validation of permits for use outside region was earlier governed by Section 63 of the Old Motor Vehicles Act, 1939, which is replaced by Section 88 of the New Motor Vehicles Act, 1988. Section 88 of the Act of 1988 reads as under :--
88(1) Validation of permits for the outside region in which granted (1) Except as may be otherwise prescribed, a limit 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 :
Provided that a goods carriage permit granted by the Regional Transport Authority of one region, for any area in any other region or regions within the same State shall be valid in that area without the countersignature of the Regional Transport Authority of the other region or of each of the other regions concerned :
Provided further that where both the starting point and the terminal point of a route are situate within the same State, but part of such route lies in any other State and the length of such part does not exceed sixteen kilometres, the permit shall be valid in the other State in respect of the part of the route which is in that other State notwithstanding that such permit has not been countersigned by the State Transport Authority or the Regional Transport Authority of that (sic) State.
(2) to (4) ........
(5) Every proposal to enter into an agreement between the States to fix the number of permits which is proposed to be granted or countersigned in respect of each route or area, shall be published by each of the State Government concerned in the Official Gazette and in any one or more of the newspapers in regional language circulating in the area or route proposed to be covered by the agreement together with a notice of the date before which representations in connection therewith may be submitted, and the date not being less than thirty days from the date of publication in the Official Gazette, on which, and the authority by which, and the time and place at which, the proposal and any representation received in connection therewith will be considered.
(6) Every agreement arrived at between the States shall, in so far as it relates to the grant of countersignature of permits, be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in the regional language circulating in the area or route covered by the agreement and the State Transport Authority of the State and the Regional Transport Authority concerned shall give effect to it.
A careful reading of the aforesaid Section clearly provides that the Regional Transport Authority of the State is empowered to grant permit on the inter-State route but that will not be valid in any other State unless the permit has been countersigned by the State Transport Authority of that State or Regional Transport Authority of that region. Likewise the case law on the subject viz. the decisions of this Court rendered in Sahib Ram's case (supra) as well as in Sunil Kumar Ajmera's case (supra), it has been held that if there is already an existing inter-State route concerned the two or more States and where there is no reciprocal transport agreement arrived at between the two or more States fixing the respective reciprocity in the matter of providing of the transport services in the concerned respective States then under Subsection (1) of Section 88 of the Act of 1988, the Regional Transport Authority of that State is empowered to grant a permit on such an inter-State route and the permit, in the absence of the reciprocal transport agreement, will be operating in the other State only when the Transport Authority of the other concerned State accords its counter-signatures on the permit so granted.
10. In the light of the above, the legal position which emerges is that under the provisions of the Motor Vehicles Act, 1988, it is the prerogative of the two or more concerned States only to open, establish and create an inter-State route lying in their respective jurisdiction by entering into a reciprocal transport agreement and to get it finalized by following the procedure prescribed under Sub-sections (5) and (6) of Section 88 of the Act of 1988. In the instant case undisputedly there exists no such agreement amongst the concerned States. More so, this route does not exist prior to the passing of the impugned order and it was for the first time that the route Sangaria-Delhi has been opened by the RTA. Therefore, in the absence of any specific provision in this regard empowering RTA to open the inter-State route without following procedure that too when there was neither any agreement to this effect nor there existed such route, in my view, the contention of the counsel for the petitioner that the RTA has committed illegality, has some substance which find support from the fact that the petitioner being an operator on Ganganagar-Delhi via Dabwali, Hisar inter-State route under a reciprocal agreement between the State of Rajasthan and Haryana and is plying bus which is fully overlapped by the impugned permit granted on Sangaria to Delhi inter-State route. Undoubtedly, private operators are excluded and no permit could be granted on the area or a portion thereof except to the extent excluded under the scheme itself. However, permit can be granted on an existing route beyond over all limit of the agreement but vehicle can be plied in the other States only after counter-signatures of the competent authority of that State as per the provisions of Section 80 of the Motor Vehicles Act. Though opening of a route and fixing of scope is an administrative matter but without following the prescribed procedure as per law, the R.T.A. has no jurisdiction to create a new inter-State route as it is also necessary to specify route and number of trips in the inter-State agreement. Under the circumstances, the impugned order of the R.T.A. is liable to be set aside being without jurisdiction, and per se illegal.
11. Mr. Maheshwari, counsel for the respondent has contended that the respondent is entitled to ply his vehicle on the route which falls within the State of Rajasthan in view of Sahib Ram's case (supra) and Sunil Kumar Ajmera's case (supra). It is true that the grant of permit is a rule and refusal is an exception under the Act, 1988 and there is no prohibition on granting permit for the convenience of the public beyond the ceiling limit of reciprocal agreements. Out of the three categories of permit seekers viz. within the region, inter-regional or intra-regional and inter-State route. However, the consideration and procedure is quite different and distinct which is legally required to be followed in respect of inter-State route. In case the permit is covered by the agreement, then the counter-signature is a right of the permit holder but in the absence thereof procedure under Sec. 80 is required to be followed. In Sahib Ram's case (supra) though the agreement dt. 5-8-1986 was held to be bad for want of compliance of provisions of the Act but it was held that the concerned R.T.A. can grant permit on the inter-State route beyond the ceiling limit provided it is counter-signed by the competent authority of the other State. In S. K. Ajmera's case (supra) it was contended that the permits should be granted strictly in accordance with the reciprocal agreement and even when there is prohibition clause in the agreement, the R.T.A. cannot grant permit beyond the ceiling limit. The Division Bench of this Court has held that the R.T.A. can grant permit over and above the ceiling limit fixed by the reciprocal agreement as the agreement cannot override the provisions of law but the formalities required under Sec. 80 of the Act are to be completed. As already stated the principle of law enunciated in the aforesaid decisions is not disputed but they are not applicable to the facts of the present case as the point which is involved in this writ petition was not raised and has not been considered in both these cases and this position has not been disputed and further in the case of Sahib Ram route was in existence and in S.K. Ajmera's case, agreement itself was there whereas in this case as already stated neither there is any agreement between the concerning three States nor the route is in existence rather the same has been opened for the first time by way of impugned grant without following any procedure by the R.T.A. Thus liable to be-set aside. That apart it cannot be said that to allow the petitioner to ply the vehicle on the; route of 3 Kms. length within the State, would be in public interest particularly when there exists no Dhani or village on the 3 Kms. route as alleged by the petitioner. Therefore, the permission to ply the vehicle as requested by Mr. Maheshwari cannot be granted. After the arguments were concluded and order was reserved, Mr. Maheshwari filed an application in the garb of written arguments requesting that the respondent may be given advantage of decision given in Rai Sahib v. State (S.B.C.W. Petition No. 4842/94) decided on 24-1-95 and to allow them to approach the concerned authority for counter-signature and also alleged that the permit of the petitioner has already expired and stood repealed. The question of giving permission to move before the concerned authority of the other States for counter-signature in view of Rai Sahib's case (supra) does not arise when as stated above the grant of permit in favour of the respondents has been held to be illegal and it has already been held that the respondent is not entitled to ply vehicle on 3 Kms. route which cannot be said to be for public convenience on the basis of impugned grant, which is illegal. Further the question of expiry of petitioner's permit cannot be considered and given effect at this stage as the point was not agitated in the reply and apart from that it is a question of fact which requires investigation.
12. In view of what I have discussed above, the impugned order deserves to be set aside. The net result is that this writ petition is allowed. The impugned order dt. 25-11-1993 passed by the Regional Transport Authority, Bikaner granting permit in favour of the respondents Nos. 2 and 3 on the Sangaria-Delhi, inter-State route, is quashed. No order as to costs.