Madhya Pradesh High Court
Moh. Ansar (Anwar) vs The State Transport Appellate Tribunal on 13 December, 2018
THE HIGH COURT OF MADHYA PRADESH
MP.722.2018
Moh. Ansar (Anwar)
Vs.
The State Transport Appellate Tribunal & Ors
1
________________________________________________________________
Gwalior, Dated : 13.12.2018
Shri R.D. Sharma, learned counsel for the
petitioner.
Shri Praveen Newaskar, learned
Government Advocate, for respondent/State.
Shri M.S. Jadon and Shri Santosh Agrawal, learned counsel for respondents No.3 and 4.
With the consent of learned counsel for the parties, the matter is finally heard.
Challenge is to an order dated 03.01.2018 passed by the State Transport Appellate Tribunal; whereby, while allowing the revisions filed by respondents No.3 and 4, the Tribunal quashed the regular permit No.SCP 79/2015 issued by order dated 22.04.2015 for the period from 11.07.2015 to 10.07.2020 on Sultanganj to Bhopal (Region) route for one return trip daily.
The petitioner had applied on 05.01.2015 for the grant of fresh permit on said route proposing to put new vehicle of 2014 or 2015 model with seating capacity 32+2 under Rule 72 of Madhya Pradesh Motor Vehicles Rules 1994. Respondents No.3 and 4, part route operators filed objections. The Regional Transport Authority vide order dated 22.04.2015 rejected the objections and granted permit No.SCP THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 2 ________________________________________________________________ 79/2015 issued thereunder on vehicle No.MP04PA3088 of 2015 model having seating capacity 32+2 w.e.f. 11.07.2015 to 10.07.2020.
Aggrieved, respondents No.3 and 4preferred revision before the State Transport Appellate Tribunal. The Tribunal vide order dated 03.01.2018 quashed the order of grant of regular permit on the findings that on the date of application under Rule 72, the petitioner had not fulfilled the criteria laid down in sub-rule (3) of Rule 72 of the Rules of 1994. The Tribunal observed:
^^08& nksuksa gh fuxjkfu;ksa essa vkyksP; vkns'k dks bl vk/kkj ij pqukSrh nh xbZ gS fd e-iz- eksVj;ku fu;e 1994 ds fu;e 72¼3½ ds izko/kkukuqlkj vko';d nLrkost is'k ugha fd;s x;s ,oa vkosnu izLrqr djrs le; rFkk vkyksP; vkns'k ikfjr djrs le; rd okgu vfLrRo esas gksdj Lis;j esa ugha Fkk bl dkj.k ls izfr fuxjkuhdrkZ Øekad&2 dk vkosnu Lohdkj ;ksX; gh ugha FkkA bl laca/k esa izfr fuxjkuhdrkZ Øekad&2 dk vius fuxjkuh ds tokc esa ;g dguk gS fd vuqKk Lohd`fr vkns'k ikfjr gksus rd okgu Lis;j esa gksuk vko";d ugha gS] cfYd vuqKk Lohd`fr ds i"pkr vuqKk i= tkjh djkrs le; okgu Lis;j esa gksuk pkfg;sA bl izdkj ls izfr fuxjkuhdrkZ Øekad&2 dk Lo;a ;g dguk ugha gS fd vkosnu izLrqr djrs le; ;k vkyksP; vkns'k ikfjr djrs le; ftl okgu ij vuqKk i= tkjh fd;k x;k gS] og vfLrRo esa gksdj izfrfuxjkuhdrkZ Øekad&2 ds vkf/kiR; esa FkkA bl ckor~ fjdkMZ dk Hkh voyksdu fd;k tk;s rks izfr fuxjkuhdrkZ Øekad&2 us tks vuqKk gsrq vkosnu is'k fd;k] mlesa fdlh Hkh okgu Øekad dk mYys[k ugha fd;k gS dsoy U;w okgu gksuk ys[k gS u gh vkosnu ds lkFk THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 3 ________________________________________________________________ fdlh okgu ds nLrkost is"k fd;s x;s gSaA vkyksP; vkns'k esa Hkh vkjVh, Hkksiky us vkns'k ds iSjk&6 esa mYys[k fd;k gS fd vkosnd }kjk vuqKk i= lapkyu gsrq dksbZ okgu izLrkfor ugha dh gSA vkyksP; vkns'k fnukad 22-04-2015 ds Lohd`r gksus ds i"pkr izkf/kdkj ds fjdkMZ esa izfr fuxjkuhdrkZ dzekad&2 }kjk fnukad 10-07-2015 dks vkosnu nsrs gq;s okgu Øekad&,e-ih-&04&ih,&3088 ij ij LFkk;h vuqKk i= tkjh fd;s tkus dh izkFkZuk dh xbZ gS] ftlds lkFk bU'kksjsal dh QksVksdkWih is'k gS ml vuqlkj ;g U;w okgu gS rFkk fuxjkuh Øekad&291@2015 esa fuxjkuhdrkZ us bl okgu dks ifjogu foHkkx ds csolkbV ls fudkys x;s fooj.k dh izfr ih&05 is'k dh gS] ml vuqlkj ;g okgu fnukad 09-07-2015 dks iathc) gqvk gS ftl laca/k esa izfr fuxjkuhdrkZ Øekad&2 us dksbZ vkifRr ugha dh gS blfy;s fjdkMZ ls gh ;g rF; izekf.kr gS fd vkyksP; vkns'k fnukad 22-04-2015 dks Hkh izfr fuxjkuhdrkZ Øekad&2 us u rks dksbZ okgu izLrkfor fd;k vkSj u gh mlds ikl dksbZ okgu Lis;j esa Fkk rFkk ftl okgu ij vuqKk i= tkjh djk;k gS og vkyksP; vkns'k fnukad dks vfLrRo esa gh ugha Fkk] cfYd ckn esa Ø; dj iath;u djk;k x;k gSA 09& fuxjkuhdrkZx.k dh vksj ls ekuuh; e-iz- mPp U;k;ky; dk U;k;kn`"Vkar inepUn xqIrk o vU; cuke ,l-Vh-, o vU; 2014¼1½ ,e-ih-,y-ts- ist&124 is'k fd;k gS] ftlesa ekuuh; mPp U;k;ky; us bl vk'k; dk vfHker O;Dr fd;k gS fd vkosnu ij lquokbZ ds le; okgu Lis;j esa gksuk vko';d gS ftldh vko';drk e-iz- eksVj;ku fu;e 1994 ds fu;e 72¼3½ ds izko/kkukuqlkj gksuk Hkh vko';d crk;k x;k gS] ftlds vuqlkj vkosnu ds lkFk okgu ds LokfeRo ds nLrkost is'k gksuk Hkh vfuok;Z crk;k x;k gS] tks vkosnu ds lkFk izLrqr u djus ij vkosnu dh lquokbZ fnukad rd vko';d :i ls is'k gksus dh vko';drk crk;h xbZ gS fcuk okgu ds vkosnu Lohdkj gksdj vuqKk Lohd`r fd;s tkus dh ik=rk u gksuk O;Dr fd;k gSA Qyr% ekuuh; e-iz- mPp U;k;ky; ds U;k;n`"Vkar vuqlkj izfr fuxjkuhdrkZ THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 4 ________________________________________________________________ Øekad&2 ds i{k esa okgu gh Lis;j esa u gksus ls vuqKk Lohd`r ;ksX; gh ugha Fkh blfy;s mijksDrkuqlkj ;g ik;k tkrk gS fd izfr fuxjkuhdrkZ Øekad&2 ds i{k esa tks vkyksP; vkns'k ikfjr fd;k x;k gS og fof/k ds foijhr gksdj vikLr fd;s tkus ;ksX; gS 10& pwafd izfr fuxjkuhdrkZ Øekad&2 ij okgu gh ugha Fkk blfy;s mlds i{k esa vuqKk Lohd`r ugha dh tk ldrh Fkh vkSj ml dkj.k ls vkyksP; vkns'k fu;e ds fo:) gksdj vikLr fd;s tkus ;ksX; ik;k x;k gSA Qyr% le; pØ ds vk/kkj ij Hkh tks fuxjkuh is'k dh xbZ gS mldk foospu djus dh vko';drk ugha jg tkrhA mijksDrkuqlkj nksuksa fuxjkuh Lohdkj dj vkyksP; vkns'k fnukad 22-04-2015 okgu ds vHkko esa vikLr fd;k tkrk gSA Aggrieved, petitioner challenges the order on the ground that the Tribunal grossly erred in misconstruing the provisions contained in sub- rule (3) of Rule 72 of the Rules of 1994 which are held to be directory and not mandatory. Reliance is placed on the decision by a Division Bench of this Court in M/s Sukh Sagar Transport Proprietor - Sunit Khatod Vs. State Transport Appellate Tribunal and others: WP.1223/1997 decided on 01.08.1998. It is also contended that the Tribunal glossed over the fact that the respondents No.3 and 4 were part route operators and had no locus to challenge the Regular Permit. Reliance is placed on the decision in "Mohd. Ibrahim, etc. Vs. The State THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 5 ________________________________________________________________ Transport Appellate Tribunal, Madras, etc. [AIR 1970 SC 1542]" and "Munnawar Jahan Begum (Smt.) and another Vs. Union of India and others [1992 JLJ 180]". [See also "The Secretary, Regional Transport Authority, Guntur and another Etc. Vs. E. Rama Rao and others Etc. [AIR 1991 Andhra Pradesh 11]" (19, 20 and 21).
Respondents No.3 and 4, on their turn, have supported the order passed by the Tribunal.
Considered rival submissions and perused the pleadings and relevant material on record.
Before dwelling on the scope of sub-rule (3) of Rule 72 of 1994 Rules, firstly, it is to be seen whether it was within the ambit of respondents No.3 and 4 to have questioned the grant of permit when they were not the applicants and are only part route operators.
Section 80 of the Motor Vehicles Act 1988 lays down the procedure in applying for and granting permits. A Division Bench of this Court in "Munnawar Jahan Begum (Smt.) and another Vs. Union of India and others [1992 JLJ 180]" while dwelling on the validity of Section 80 on the touchstone that it leaves no scope for raising objections, held:
THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 6 ________________________________________________________________ "2. Referring to sub-sections (1) and (3) of section 47 of the Motor Vehicles Act, 1939, (in short, the "old Act") the learned counsel for the petitioners argued that while considering an application for a stage carriage permit, the Regional Transport Authority was bound to consider the various matters enumerated in sub-section (1), as also to "take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies", and that he could "limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region" in exercise of his powers under sub-section (3) and having regard to the matters specified in sub-section (1).
Absence of similar safe-guards and restrictions rendered the provisions of section 80 of the new Act invalid.
3. The argument has no substance. As held by the Supreme Court in Mohd. Ibrahim Vs. S.T.A. Tribunal, Madras (A.I.R. 1970 S.C. 1542), at the stage of limiting the number of permits under section 47(3) of the old Act, the existing operators had THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 7 ________________________________________________________________ no legal right of making representation, or that of hearing. ...............Accordingly if the new Act makes no restriction to the number of permits that may be granted under section 80, the petitioners can have no say that any of their right is taken away."
Similar view that, existing operator has no legal right to raise any objection when an application under Section 72 read with Sections 70, 71 and 80 of 1988 Act has been taken by Full Bench of Andhra Pradesh High Court in "The Secretary, Regional Transport Authority, Guntur and another Etc. Vs. E. Rama Rao and others Etc. [AIR 1991 Andhra Pradesh 11]" wherein the reference was "Whether the existing operators on a route are entitled to file representations before the Regional Transport Authority while the said Authority is dealing with grant of stage carriage permits to fresh applicants under Section 72 read with Ss.70, 71 and 80 of the Motor Vehicles Act, 1988". After taking into consideration various authorities in the field, the Bench observed:
"12. So far as the right of existing operators to send representations and seek a right of hearing are concerned, identical questions arose in the State of THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 8 ________________________________________________________________ Uttar Pradesh after the State amendment in U.P. Act 25 of 1972. By that amendment, S.47(1) was amended by omitting the right of representation to existing operators given under the Central Act. However that right in so far as local and police authorities were/concerned was retained. It was held by a Division Bench of the Allahabad High Court in Mithanlal V. S.T.A. Tribunal AIR 1976 All 286 that, after the U.P. Amendment, the right of representation by existing operators has ceased to exist as the said provision is dropped.
13. The said U.P. amendment omitting the right of representation by existing operators, came up for consideration before the Supreme Court in Hans Raj Kehar V. State of U.P. AIR 1975 SC 389. Adverting to the right of a rival operator to object to the grant of the application of other persons, the Supreme Court referred to Art. 19(1)(g) and (6) of the Constitution of India and held that rival operators have no right to represent against the grant of permit to other persons. Such a right to represent, if it has to be conferred on an existing operator, it can be done only by way of a law made under Art. 19(6) in the interests of the general public. The Supreme Court observed (in para 8) "The fact that some others have also been enabled to obtain permits for running buses cannot constitute a violation of appellants' rights under the above two cls. (f) and (g) of Art. THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 9 ________________________________________________________________ 19 of the Constitution. The above provisions are not intended to grant a monopoly to a few bus operators to the exclusion of other eligible persons. No right guaranteed to any private party by Art. 19 of the Constitution of carrying on trade and business without competition from other eligible persons. Cl.(g) of Art. 19(1) gives a right to all citizens subject to Art.19(6), to practise any profession or to carry on any occupation, trade or business. It is an enabling provision and does not confer a right on those already practising a profession or carrying on any occupation, trade or business to exclude and debar fresh eligible entrants from practising that profession or from carrying on the occupation, trade or business. The said provision is not intended to make any profession, business or trade the exclusive perverse of a few persons."
The aforesaid judgment of the Supreme Court, therefore, makes it clear that an existing operator has no fundamental right to a monopoly of the trade, business or occupation and after the omission by the U.P. Amending Act of 1972 of the right of representation by existing operators, no such right could be claimed. We may add that viewing the matter from the point of view of the new applicant's fundamental right under Article 19(1)(g), the said right can be fettered only to the extent specified THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 10 ________________________________________________________________ by law made under Art.19(6). Under the old Act, the fetters on this fundamental right of the new applicant included a right conferred on existing operators and others under Ss.47(1), 57(3), (5) to represent. Those fetters have now been removed under S.71(1) and S.80(2) of the new Act of 1988. An existing operator, in our view, cannot, therefore, claim a right of representation or a right to be heard before the R.T.A. These rights have been specifically omitted in the new Act by Parliament.
29. The only and limited question therefore decided by us is that whenever fresh applications are filed under S.72 read with Ss.70, 71 and 80 of the new Motor Vehicles Act, 1988, existing operators have no legal right to file representations before the R.T.A. Nor can they claim any right to be heard by the R.T.A. It may however be open to them to send whatever representations they may like to send, as a matter of information, to the R.T.A. but this they cannot claim as of right. If any representations are so sent, it is open to the R.T.A. to consider them if there is anything relevant in the said representations. But the R.T.A. may or may not consider every such representation sent by the existing operators. Nor can the existing operators claim any legal right to be heard before the R.T.A. under any circumstances. They cannot also claim a right to be given certified copies under R.166 of the A.P. Motor Vehicles Rules, 1989, of any THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 11 ________________________________________________________________ applications filed by fresh applicants (who are seeking stage carriage permits) on the ground that such copies are necessary, 'for filing effective representations' before the R.T.A. We do not decide any other question or questions which may have been incidentally referred to during the arguments, as it is not relevant for the question being decided by us."
In the case at hand, it is observed that respondents No.3 and 4 were not the applicants for the route for which petitioner applied, but were operating over part of said route. And though objections were raised in respect of the locus of respondents No.3 and 4 to challenge the grant of permit (which is evident from averments in paragraph 1 of the written submissions), the Tribunal did not advert to the same, there is no finding to that effect in the impugned order.
In view whereof and taking note of the law laid down in Mohd. Ibrahim (supra) Munnawar Jahan Begum (Smt.) (supra) and E. Rama Rao (supra), there remains no iota of doubt that the respondents No.3 and 4 had no locus to question the grant of Stage Carriage Permit in favour of the petitioner. It was incumbent upon the Tribunal to have dismissed the revisions on said ground alone.
THE HIGH COURT OF MADHYA PRADESH MP.722.2018 Moh. Ansar (Anwar) Vs. The State Transport Appellate Tribunal & Ors 12 ________________________________________________________________ The Tribunal, in the considered opinion of this Court, grossly erred in entertaining the revisions.
Consequently, while setting aside the order passed by the Tribunal, the Revision Petitions preferred by respondents No.3 and 4 are dismissed.
Other legal issues raised in the petition are kept open to be decided in appropriate case.
In the result, the petition is disposed of finally in above terms. No costs.
(Sanjay Yadav) Judge pd PAWAN DHARKAR 2018.12.19 19:06:45 +05'30'