Allahabad High Court
Wahid Ali vs State Of U.P. And Ors. on 31 August, 2004
Bench: Pradeep Kant, Y.R. Tripathi
JUDGMENT
1. The petitioner, an existing operator and holder of regular stage carriagepermit for plying on Jhansi-Tehroli-via-Mauranipur-Todi Fatehpur-Bijna route,has approached this Court by means of the present writ petition challenging theaction of the Regional Transport Authority, Jhansi in entertaining theapplication for grant of permits on the aforesaid route and also on 20 otherroutes, which have been mentioned in Para 4 of the writ petition.The main ground of challenge to the action of the Regional TransportAuthority is that the aforesaid routes are inter-state routes running about 100kms. out of which about 89 kms. portion lies in the State of U.P. and about 11kms. portion lies in the State of Madhya Pradesh. The case of the petitioner isthat apparently the aforesaid routes are inter-state routes as the route extendsfrom one State, namely, State of Uttar Pradesh to the other State, namely Stateof Madhya Pradesh and, therefore, even if the starting point and the terminalpoint of the route lies in the State of Uttar Pradesh and though the route whichfalls in the State of Madhya Pradesh is less than 16 kms, the Regional TransportAuthority, Jhansi was not competent to entertain the applications for grant ofpermit and the permit, if at all could be granted for such routes, could begrantedonly when a reciprocal agreement is entered into between the two States andpermits are granted by the State Transport Authorities as per Section 88 of theMotor Vehicles Act, 1988.
2. The aforesaid claim of the petitioner is being refuted by Sri SudhirPandey, learned counsel for the State, who submits in response that in view ofthe second proviso to Section 88(1) of the Motor Vehicles Act, 1988, routes inquestion having only 11.20 kms. portion in the State of Madhya Pradesh, doesnot require that there should be a reciprocal agreement between the two Statesand that counter signatures from the authority of the State of Madhya Pradesh isalso not required.
3. Initially when this petition was filed in the year 1992, an interim orderofstay was passed restraining the Regional Transport Authority, Jhansi fromgranting any permits. However, writ petition was dismissed in default on21.4.2000 and thereafter it was restored vide order dated 5.8.04 but the interimorder of stay was not restored.
4. Learned counsel for the respondent-State has submitted that the petitionis pre mature and if the petition if at all could be filed, it was only when thepermits were granted by the Regional Transport Authority, Jhansi, of the routesin question and if the permits had been granted, the petitioner was at libertytochallenge the same by filing an appeal and the revision under the Act itself. Hefurther says that in the absence of any permit being granted, no cause of actioncan be said to have accrued merely on the apprehension of the petitioner thatapplication has been received by the Regional Transport Authority, Jhansi,therefore, permits would necessarily be granted, and that too illegally.One more aspect of the matter brought to the notice of this Court by thelearned counsel for the respondents is that the petitioner himself who is anexisting operator and holder of a permit granted by the Regional TransportAuthority, Jhansi for one of the same routes, which are in question, namely,Jhansi-Tehroli-via-Mauranipur-Todi Fatehpur-Bijna route, which route also isof the same nature, namely, 11.20 kms. portion of the said route lies in theStateof Madhya Pradesh and for which there is no reciprocal agreement, could nothave brought the action before the Court, he having taken advantage of the samevery provisions in securing the permit. The petitioner had applied for renewalofhis permit to the Regional Transport Authority, Jhansi and has also obtained therenewal. His submission, therefore, is that the petitioner is himself enjoyingthepermit granted by the Regional Transport Authority, Jhansi for the same routefor which he has approached this Court under Article 226 of the Constitution forrestraining the willing persons from getting permits, therefore, the petitionercould not have asked the Regional Transport Authority, Jhansi not to considerthe grant of any other permit.
5. Learned counsel for the petitioner could not answer satisfactorily as towhen the petitioner himself is enjoying the same kind of permit then in whatmanner and under what circumstances, consideration of the application of otherpersons could be objected to by him.
6. Learned counsel for the petitioner Sri C.B. Pandey could not answer asto when the petitioner was granted the permit under the same existingconditions and under the same Rules, then why the permit could not have beengranted to other aspirants. The petitioner having taken advantage of thepermits,which according to his own showing, was granted legally, cannot raise anygrievance against the authority of the Regional Transport Authority, Jhansi, inconsidering and granting permits to other persons.
7. On the admitted facts aforesaid, it can very safely be presumed that thepetitioner has no claim for objecting the grant of permits by the RegionalTransport Authority, Jhansi, for the routes in question.
8. In regard to the case of the petitioner that unless there is a reciprocalagreement between the two States, namely, the State of Uttar Pradesh and theState of Madhya Pradesh, no permit can be granted of the routes in question andthat permit can only be granted after a reciprocal agreement is entered into andthat too by the State Transport Authority, is concerned, the learned counsel forthe petitioner has relied upon the case of Ashwini Kumar and Anr. v.Regional Transport Authority, Bikaner and Anr., (1999) 8 SCC 364. Hissubmission is that irrespective of the length of the route in the other State,permit cannot be granted by the Regional Transport Authority unless areciprocal agreement has been entered into between the two States and till suchagreement is entered into, the route cannot be termed as an inter-state routeand no permit could be granted by the Regional Transport Authority, and ifpermit could be granted, it was to be countersigned by the Regional TransportAuthority of the other State.Reliance has been emphatically placed upon Para 6 of the aforesaidjudgement, wherein the plea of the learned counsel for the appellant Mrs. RaniChhabra that sub section (1) of Section 88 has to be construed independently,which, according to her, did not prescribe the existence of a reciprocalagreement regarding the inter-State permits and that the existence of areciprocal agreement would not come in the way of sub sections (5) and (6) forthe Regional Transport Authority to grant permit in the State which, whengranted, becomes valid in the other State upon it being countersigned, wasrejected. The argument that the grant of such permits under Section 88 subsection (5) and (6) was within competence of the Regional Transport Authoritywas rejected by the Apex Court after observing that such an argumentcompletely ignores the opening word of the section "except as may be otherwiseprescribed".
9. The Apex Court was considering the route, which was lying in the Statesof Rajasthan, Haryana and Union Territory of Delhi. Out of the entire route in alength of 359 kilometers, 3 kilometers lay in the State of Rajasthan, 323kilometers in the State of Haryana and remaining portion of 33 kilometers wasin the Union Territory of Delhi.
10. The Supreme Court was dealing with a route, which was apparently inter-State route and was not attracted by the second proviso of Section 88(1).Counsel Mrs. Rani Chhabra also did not place any reliance on the secondproviso of Section 88(1) of the Act but raised an argument that sub section (1)of Section 88 was an independent provision as against sub sections (5) and (6),which does not call for any reciprocal agreement or reciprocal arrangementbeing made and, therefore, submitted that there being no such requirement ofreciprocal agreement under Section 88(1), the RTA cannot be stopped frommaking arrangement under Section 88(1). This argument was repelled by the Apex Court. The Apex Court categorically observed that 'the grant of inter-State permits with which the Apex Court was concerned in the appeals, ispermissible under Section 88(5) and (6) of the Act. Thus, the Supreme Court didnot have any occasion to consider the effect and import of second proviso toSection 88(1) of Motor Vehicles Act, 1988.
11. Section 88(1) of the Motor Vehicles Act, 1988 says as under:
"88. Validation of permits for use outside region in whichgranted.-(1) Except as may be otherwise prescribed, a permit grantedby the Regional Transport Authority of any one region shall not be validin any other region, unless the permit has been countersigned by theRegional Transport Authority of that other region, and a permit grantedin any one State shall not be valid in any other State unlesscountersigned by the State Transport Authority of that other State or bythe Regional Transport Authority concerned:"
12. The 2nd proviso attached to the aforesaid Section reads as under:
"Provided further that where both the starting point and theterminal point of a route are situate within the same State, but part ofsuch route lies in any other State and the length of such part does notexceed sixteen kilometres, the permit shall be valid in the other State inrespect of that part of the route which is in that other Statenotwithstanding that such permit has not been countersigned by theState Transport Authority or the Regional Transport Authority of thatother State:"
13. Sub Section (5) and (6) of Section 88 speak of an agreement between theStates and also the manner and procedure and the authority to grant permits ofsuch inter-State routes. Second proviso to Section 88(1) of the Act carves outan exception to the requirement of having reciprocal agreement or countersigning the permits by the RTA of the other State, in case such route in theother State is less than sixteen kilometers and both the points, namely,starting point and the terminal point lie within the same State from which theroute has emerged. The second proviso which is a non obstante clause takes careof such routes, where the length of the route is less than sixteen kilometers inthe other State and both the points, namely, starting point and the terminalpoint lie within the first State and says that notwithstanding that such permithas not been countersigned by the State Transport Authority or the RegionalTransport Authority of that other State, permit can be granted by the RegionalTransport Authority. This clause has no ambiguity in respect of grant ofpermits, which are covered by the second proviso to section 88(1).Section 88 is a complete code in itself and gives a complete arrangementand the scheme, which has to be followed including the authority which hasbeen vested with the power to grant permit in case of inter-State route forvalidation of permits for use outside the region in which it was granted andalso lays down conditions and the authority and the manner in which such permitcan be granted or can be held to be valid or can be validated.A proviso carves out an exception to the main provision to which it hasbeen enacted as a proviso as has been held in the case of Commissioner ofCommercial Taxes, Board of Revenue, Madras and Anr. v. Ramkishan Shrikishan Jhaver, AIR 1968 S.C. 59.
14. Learned counsel for both the parties rely on the case of E. Venkamma v.The Govt. of Andhra Pradesh and Ors., AIR 1977 S.C. 1170. In this case theroute in question did fall in two States, namely, State of Andhra Pradesh andState of Tamilnadu. In Tamilnadu it had a length of eight kilometers, therefore,the question arose regarding the authority to issue permits. The Apex Courtconsidering the second proviso to Section 63(1) in the old Act which gaveparameters for granting permits, held that it was not necessary that permit becounter signed by the concerned authority in the State of Tamilnadu. Theobservations made by the Supreme Court read as under:
"The portion of the route falling outside Andhra Pradesh (both terminibeing within that State) is admittedly less than 16 km. and so noquestion of counter-signature by the State Transport Authority ofTamilnadu State arises. The conclusion follows that the portions of theinter-State route which fall within Andhra Pradesh stand nationalised,and consequently excludes private operators. But that strip of the inter-State route which falls within Tamilnadu cannot be taken to have beennationalised to the exclusion of private operators although the AndhraPradesh State Transport buses could ply on that strip also in view of the2nd proviso to S. 63 (1) of the M.V. Act.We, therefore, reach the conclusion that (a) the route Nellore-Ramapuram is an inter-State route; (b) the scheme of nationalisation isoperative even in the absence of the previous approval of the CentralGovernment, so far as the portion which fall within Andhra Pradesh areconcerned and (c) the nationalisation cannot become effective over thetiny strip in Tamil Nadu and private operators may still be permitted toply their services over that strip by the concerned authority within TamilNadu State; but (d) the Andhra Pradesh State Transport Corporation mayply its buses over the Tamil Nadu enclave even without counter-signature, exemption having been granted in that behalf by the 2ndproviso to S. 63(1) of the M.V. Act. In this view, the appeal mustsubstantially fail except to the extent of the little modification we haveindicated, which does not profit the appellant. In the circumstances,while dismissing the appeal we direct the parties to suffer their coststhroughout."
15. Learned counsel for the petitioner has made an attempt to justify his caseby saying that the Supreme Court in the case of E. Venkamma (supra) has no doubt dealt with 2nd proviso to Section 63(1) which is on the same terms andwith the same language as in the present 2nd proviso to Section 88(1) but ifthat judgement is read with the judgement in the case of Ashwini Kumar (supra),it would mean that even if length of the route in the other State was less than16 km. and starting and terminal points fell within the first State, there hasto be a reciprocal agreement as it is the cardinal and basic characteristic ofan inter-State route and in the absence of such reciprocal agreement, and in theabsence of permit being countersigned by the concerned authority of the otherState, permit cannot be granted nor they can be used outside the State fromwhere, they are granted.
16. We find that the judgement in the case of E. Venkamma (supra) was considering the 2nd proviso to Section 63(1) wherein the Apex Court has heldthat the no counter signature was needed and permit granted in one State can bevalidly operated in the other State and in the case of Ashwini Kumar (supra) theSupreme Court was dealing with the provisions of Section 88 sub-section (5)and (6) and not with the 2nd proviso to Section 88(1) of the Motor Vehicles Act.In view of the aforesaid legal position, we do not find any merit in thewrit petition, which is hereby dismissed.
17. Before parting, we would like to observe that the petitioner, ought tohave clearly stated in the writ petition that he himself is a beneficiary of asimilar permit of the same route on which he stalled consideration of issue ofpermits since the year 1992 i.e. for the last about 12 years. The petitionerforgot that the creation of the routes, issuance of permits for plying the buseson these routes are all for the benefit of travelling public and in publicinterest.
18. With the aforesaid observations, the writ petition is dismissed.