Madhya Pradesh High Court
Dilip Manglani vs The State Of Madhya Pradesh on 30 June, 2015
1
W.P. No. 9845/2014
30.6.2015
Shri Brijesh Dubey, learned counsel for the petitioner.
Shri Deepak Awasthy, learned Government Advocate for
respondent Nos. 1 to 3.
Intervenor in person.
That, by order dated 1.4.2015 intervenor Ravindra Nath Tripathi was permitted to intervene. Petitioner to implead him as respondent No. 4. Steps within ten days.
I.A. No. 1052/2015, an application for vacating stay order dated 27.10.2014 and I.A. No. 5295/2015, reply thereof are taken up for consideration.
That, by order dated 27.10.2014, operation of order passed by Principal Secretary, Transport Department, Government of Madhya Pradesh on 4.6.2014 was stayed by taking into consideration that by Indore Bench of this Court an order of stay in W.P. No. 4365/2014 has been passed.
The order impugned, i.e., order dated 4.6.2014 is in following terms:
e/; izns'k 'kklu ifjogu foHkkx ea«kky;]Hkksiky dzekad Hkksiky fnukad 04@06@2014 izfr] leLr {sk«kh; ifjogu izkf/kdkj leLr {sk«kh;@vfrfjDr@ftyk ifjogu vf/kdkjh e/;izns'k 2 fo'k; %& ijfeV tkjh djus ds laca/k esa funsZ'k A eksVj;ku vf/kfu;e dh /kkjk 80 esa ijfeVksa ds fy;s vkosnu djus vkSj bUgsa nsus dh izfdz;k fu/kkZfjr dh xbZ gSa A /kkjk 80 ,d esa ;g izko/kku gS] fd fdlh Hkh izdkj ijfeV ds fy, vkosnu fdlh Hkh le; fd;k tk ldsxk A /kkjk 80 nks esa ;g izko/kku fd;k x;k gS fd izknsf'kd ifjogu izkf/kdj.k] jkT; ifjogu izkf/kdkjh ;k vU; fpafgr izkf/kdj.k lk/kkj.kr bl vf/kfu;e ds v/khu fdlh Hkh le; fdlh Hkh izdkj ds ijfeV ds fy;s vkosnu eatwj djus ls badkj ugha djsxk A tgka Hkh dksbZ fofgr izkf/kdj.k bl vf/kfu;e ds v/khu fdlh Hkh izdkj ijfeV nsus lca/kh vkosnu ukeatwj djrs gS rks vkosnd dk ukeatwj fd;s tkus okys dkj.k fyf[kr #i esa nsaxs vkSj bl fo"k; esa lquokbZ dk volj Hkh nsaxs A mi;qZDr izko/kkuksa dks ekuuh; mPpre U;k;ky; }kjk , +vkbZ +vkj + 1992 ,l0lh0 143 feFkys'k xxZ rFkk ekuuh; mPp U;k;ky; e/;izns'k }kjk Hkh vusd U;k; n`'Vkrksa esa Li"V fd;k x;k gS fd lkekU;r% fdlh Hkh ijfeV dks ukeatwj ugha fd;k x;k tk ldsxk A izk;% ;g ns[kk x;k gS lHkh Lrjks ij ijfeV ds vkosnu dkQh yacs le; rd lquokzbZ vFkok vU; dkj.kksa ls yafcr jgrs gS blls ,d vkSj vke turk dks vkokxeu esa dfBukbZ gksrh gS nwljh vkSj 'kklu dks jktLo dh gkfu Hkh gksrh gS A ekuuh; lqizhe dksVZ us fefFkys'k flag fo#} ;wfu;u vkQ bafM;k ds vius fu.kZ; esa ;g ekxZnf'Zkr fd;k gS fd eksVj;ku vf/kfu;e 1988 ds }kjk ijfeV dh la[;k dks lhfer djrs vFkok lafofy;u dks vLia'V ifjfeV ,oa vkifRr yxkus dk vf/kdkj lekIr dj fn;k tkosxk mi;qDr ifjfLFfr esa vLi'V ifjogu izkf/kdkjh }kjk vkeaf ér dh tkus okyh vkifRr ,oa lquokbZ dk dksb vk/kkj ugh gS A ,slh fLFfr esa fu/kkZfjr++&&&&& lHkh ifjogu izkf/kdj.k ijfeV gsrq izkIr vkosnuksa dk &&&&&&&& vk/kkj ij vLFkkbZ ijfeV dh fLFfr esa 10 fnol rFkk LFkkbZ ijfeV dh fLFfr esa 30 fnol dh le;kof/k 3 esa foÌeku izko/kkuksa ds vuqlj.k esa fujkd.k djsxk A lacaf/kr izfrekg izkIr vkosnu rFkk fujkdj.k dh tkudkjh vxys ekg dh 5 rkjh[k rd ea«kky; ,oa ifjogu eq[;ky; dks vko';d #i ls Hksatsaxs A Apparent it is from the order that it is in consonance with the existing provisions contained in the Motor Vehicles Act, 1988 and as substituted vide Chapter V as Control of Transport Vehicles :
Sections 71, 72 and 80 and the decision rendered by the Supreme Court in Mithilesh Garg v. Union of India and others (AIR 1992 SC 443) wherein it is held:
"5. A comparative-reading of the provisions of the Act and the old Act make it clear that the procedure for grant of permits under the Act has been liberalised to such an extent that an intended operator can get a permit for asking irrespective of the number of operators already in the field.
Under Section 57 read with Section 47 (1) of the old Act an application for a stage carnage permit was to be published and kept for inspection in the office of the Regional Trans- port Authority so that the existing operators could file representations/objections against the said application. The application, along with objections, was required to be decided in a quasi-judicial manner, Section 47 (3) of the old Act further permitted the imposition of limit on the grant of permits in any region, area or on a particular route. It is thus obvious that the main features of Chapter IV "control of transport vehicles" under old Act were as under:
1. The applications for grant of permits were published and were made available in the office of the Regional Transport Authority so that the existing operators could file representations;4
2. The applications for grant of permits along with the representations were to be decided in quasi judicial manner;
and
3. The Regional Transport Authority was to decide the applications for grant of permits keeping in view the criteria laid down in Section 47 (1) and also keeping in view the limit fixed under Section 47 (3) of the Act. An application for grant of permit beyond the limited number fixed under Section 47 (3) was to be rejected summarily.
6. The Parliament in its wisdom has completely effaced the above features. The scheme envisaged under Section 47 and 57 of the old Act has been completely done away with by the Act. The right of existing- operators to file objections and the provision to impose limit on the number of permits have been taken away. There is no similar provision to that of Section 47 and Section 57 under the Act. The Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalize the grant of permits. Section 71 (1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act. Section 80 (2), which is the harbinger of Liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. There is no provision under the Act like that of Section 47 (3) of the old Act and as such no limit for the grant of permits can be fixed under the Act. There is, however, a provision under Section 71 (3) (a) of the Act under which a limit can be fixed for the 5 grant of permits in respect of the routes which are within a town having population of more than five lakhs."
The petitioners in the present writ petition are existing Stage Carriage Operator have filed this petition seeking quashment of order dated 4.6.2014 mainly on the ground that the same is contrary to the principles of natural justice as the operators like petitioners are deprived from raising any objection when a fresh application is being considered for grant of permit. Along with writ petition the petitioner also sought an interim direction for stay of operation of the said order. In support of the claim for interim relief the petitioners had placed reliance on the order dated 20.6.2014 in W.P. No. 4365/2014 by Indore Bench of the Court. The said order is on record as Annexure P/4 wherein after hearing the learned counsel for the parties, it was ordered:
"After hearing the learned counsel for the parties and after carefully going through the aforesaid judgment delivered by the apex court in the case of Mithilesh Garg (supra), this court is of the considered opinion that in the aforesaid judgment it has been nowhere held that objectors will have no right to file any objection in case an application is submitted for grant of permit/temporary permit/fresh permit. Not only this, the judgment delivered by Division Bench of this Court in various cases held that hearing of such an objection is a necessary factor. The first judgment which has been relied upon is the judgment passed by the Division Bench in case of Kalim Mohd. v. STAT decided on 3.9.1993 reported in 1994 (1) 22. In the aforesaid case, it was also a case for 6 grant of stage carriage permit. It has been held that all objectors are required to be heard and even the objectors who have not filed objections were granted opportunity of hearing by Division Bench of this Court. Similarly, in the case of MPSRTC V. STAT reported in 1994 (1) MP Weekly Notes Note 16, which was a case relating to appeal u/s 89 of the Motor Vehicles Act, 1988. The Division Bench of this Court has held that all objectors before the RTA were required to be heard and the order passed by the STAT was set aside and the matter was remanded back to STAT for hearing all parties including the objectors. This Court again in the case of Chenram Jain vs. STAT passed in MP No. 730/1993 decided on 21.4.1993, which is again a judgment delivered by the Division Bench wherein the right of objectors of hearing was upheld. Another judgment which is on record is of the case of Madanlal Chabda and another v. STAT and others, passed in M.P. No. 969/1993, wherein it has been held that the objectors are required to be heard in the matter.
This court keeping in view the totality of the facts and circumstances of the case is of the considered opinion that the impugned order to the extent the right of the objectors have been closed by the State Government deserves to be stayed.
Accordingly, the impugned order dated 5.6.2014 (Annexure P-1) as it closes the right of the objectors to 7 file an objection in the matter of grant of permit/temporary permit is accordingly stayed........" Intervener takes exception to the interlocutory order on the count that the same is contrary to the decision rendered by the Supreme Court in Mithilesh Garg (supra). It is contended that since it has been categorically held in Mithilesh Garg (supra) that the right of existing operators to file objections and the provision to impose limit on the number of permits have been taken away, it is beyond the right of the operators, as the petitioners, to question the correctness of impugned order dated 4.6.2014 which is in consonance with the present policy and the decision by the Supreme Court . It is further contended that the Supreme Court in Jagdip Singh v. Jagir Chand and another (AIR 2001 SC 3027) having held that it would be unjust to put fetter on the exercise of fundamental rights of those persons who intend to carry on the business as transport operators, the interim order staying the operation of order dated 4.6.2014 deserves to be vacated.
On his turn the petitioner has relied on the decision by Division Bench of this Court in M.P. No. 738/1993 decided on 21.4.1993 and Vivek Dwivedi and another v. Prem Narain and others (AIR 1999 MP 1).
Having perused the decision rendered in M.P. No. 738/1993 and Vivek Dwivedi and others (supra), it is noted with due respect that both the decisions do not take into consideration the mandate of Supreme Court as contained in paragraphs 6 and 7 of the decision in Mithilesh Garg (supra). Similarly while passing the order dated 20.6.2014 in W.P. No. 4365/2014, the aforesaid mandate of Supreme Court has not been taken note of; wherein it is categorically held (i.e., 8 in Mithilesh Garg) that with amendment caused in the Motor Vehicles Act, 1988 with insertion of Chapter V of the Act substituted Chapter IV of old Act that the scheme under Sections 47 and 57 of the old Act has been completely done away with and "the right of existing operator to file objections and provisions to impose limit on number of permits have been taken away".
There is a substantial force in the submissions put-forth on behalf of intervener/respondent that since there is no legal right in the petitioners, existing operators to raise objection against the application filed for grant of permit, and the issuance of impugned order dated 4.6.2014 being in consonance with the provisions of the Act in vogue and the decision rendered by the Supreme Court in Mithilesh Garg the stay order dated 27.10.2014 is hereby vacated.
I.A. No. 1052/2015 stands disposed of.
(SANJAY YADAV) JUDGE Vivek Tripathi