Himachal Pradesh High Court
Niji Bus Operator Kalyan Sabha vs State Of H.P. & Ors on 28 May, 2015
Bench: Rajiv Sharma, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1297 of 2015 with CWP Nos. 1313, .
1916 and 2100 of 2015.
Judgement reserved on: 12.5.2015.
Date of decision: 28.05.2015.
1. CWP No. 1297 of 2015.
Niji Bus Operator Kalyan Sabha ..... Petitioner.
Vs.
State of H.P. & ors. .... Respondents.
2. CWP No. 1313 of 2015.
Praveen Dutt Sharma & ors. ..... Petitioners.
Vs.
Union of India & ors. .... Respondents.
3. CWP No. 2100 of 2015.
Dineshwar Singh Naryal & ors. ..... Petitioners.
Vs.
State of H.P. & ors. .... Respondents.
4. CWP No. 1916 of 2015.
Shyam Sharma & anr. ..... Petitioners.
Vs.
Union of India & ors. .... Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1For the petitioners: Mr. Ajay Sharma, Mr. Jagdish Thakur and Ms. Ranjana Parmar, Advocates, for the petitioners, in respective petitions.
For the respondents: Mr. Shrawan Dogra, Advocate General with Mr. Romesh Verma and Mr. Anup Whether the reporters of the local papers may be allowed to see the Judgment?
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Rattan, Additional Advocate Generals, for the respondent -State.
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Mr. Ashok Sharma, Assistant Solicitor General of India, for the Union of India.
Mr. R.S.Chandel, Advocate vice counsel for respondent- Bus Stand Management & Development Authority, in respective petitions.
Mr. Raman Jamalta, Mr. Varun Chandel and Mr. B.N. Sharma, Advocates, for the HRTC, in respective petitions.
Tarlok Singh Chauhan, Judge.
The petitioners are the private bus operators and are aggrieved by the action of the respondents, whereby the buses procured by the respondents under Jawaharlal Nehr u National Urban Renewal Mission (JnNURM) scheme have been permitted to run on concessional fare. They are further aggrieved by the action of the respondents whereby they have permitted these buses to run in inter-
district and inter-State routes without obtaining the stage carriage permit that too without any particular time table.
For the purpose of adjudication of these petitions, CWP No. 1313 of 2015 titled Praveen Dutt Sharma & others vs. Union of India and others is taken as the lead case.
2. The respondent- State in exercise of powers vested in it, under section 67 of the Motors Vehicles Act, issued notification dated 30.9.2013, whereby the buses received under JnNURM scheme were exempted from payment of State road tax and token tax by invoking the provisions of Section 14(3) of Himachal Pradesh Motor Vehicles Taxation Act, 1972.
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3. On 7.11.2009, another notification was issued whereby the fare of Stage Carriage buses received under JnNURM scheme .
was fixed in the following manner:-
Sr. No. Distance Range Passenger Fare
1. 0 to 5 KMs Rs.5/-
2. 6 to 10 KMs Rs.10/-
3. 11 to 15 KMs Rs.15/-
4. On 16.8.2013, the respondent No. 1 sanctioned one thousand buses with passenger focus on hilly States under the JnNURM scheme. On 30.9.2013, the State issued another notification whereby the fare of ordinary buses was fixed in the following manner:-
Roads in Plains = 90 paise per kilometer
Roads in Hills = 145 paise per kilometer
5. On 27.1.2014, the Himachal Road Transport
Corporation filed an application for grant of route permit on behalf of the buses received under the JnNURM scheme, and the same was granted on 31.1.2014.
6. On the above stated facts, the grievance of the petitioner(s) is that buses received under the JnNURM scheme cannot be plied beyond the city limits of Shimla and the permission/ relaxation granted to these buses is only on account of concerted effort of the Managing Director H.R.T.C. who also happens to be the Director Transport, H.P, Chairman, Regional Transport Authority and the Chief Executive Officer of H.P. Bus Adda Management and Development Authority. It is further contended that issuance of various notifications and plying of buses under the JnNURM scheme ::: Downloaded on - 15/04/2017 18:16:28 :::HCHP ...4...
is contrary to the provisions of Motor Vehicles Act and Rules framed thereunder as the State was bound to adhere to the JnNURM .
scheme.
7. In response to the petitions, the Himachal Road Transport Corporation and H.P. Bus Stand Management and Development Authority have filed a joint reply wherein it is stated that Himachal Road Transport Corporation has been constituted under the provisions of Road Transport Corporation Act, 1950 and is a State Transport Undertaking within the meaning of Motor Vehicles Act.
Being a Public Sector Undertaking that too constituted under the Road Transport Corporation Act, it is under an obligation to provide transportation facilities to the people of the State living in far-flung areas regardless of the commercial considerations. Section 34 of the Road Transport Corporation Act empowers the State Government to issue directions to the Corporation, which it is obliged to comply with, though the same may result in its operation going in losses.
8. It is further contended that Motor Vehicles Act also accounts for the necessity of having a kind of transport operation i.e. undertaken by a State Transport Undertaking and is independent of the provisions and requirements of Chapter-V of the Motor Vehicles Act. The provisions of Chapter VI are specifically incorporated in the Act to provide special conditions for operation of buses by the State Transport Undertaking independent of the private sector operation governed by Chapter-V of the Act. The State Transport Undertakings do not apply for permit under Chapter V of the Act, because Section ::: Downloaded on - 15/04/2017 18:16:28 :::HCHP ...5...
99 provides for notification of a scheme of routes, where the State Transport Undertaking i.e. H.R.T.C. can ply.
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9. It is also averred that scheme under section 99 has been notified by the State Government for inviting objections for grant of route permits under JnNURM scheme operation as well as the other operations of HRTC pending finalization of the route permits under section 99, temporary route permits under section 101 of the Act have been issued in favour of the HRTC. The corporation had received 367 number of buses under the JnNURM scheme from Government of India and these buses were being plied on those routes where there was overloading of passenger s and the routes where route permits are already existing by replacing the old buses of HRTC with the intention to minimize the crowed in the buses in compliance to the directions issued by this court in CWPIL No. 20 of 2012 decided on 7.1.2014.
10. It is fur ther averred that respondent No.5 launched a scheme for massive city modernization known as Jawahar Lal Nehru National Urban Renewal Mission (hereinafter referred to as JnNURM). The said scheme was a huge mission launched on 3rd December, 2005 in order to improve the quality of life and infrastructure in the cities which was initially for a period of seven years i.e. March 2012, aimed to encourage cities to initiate steps for bringing phased improvement in their civic level and thereafter the same was extended for two years i.e. from April, 2012 to 31 March, 2014.
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11. The JnNURM scheme has been approved for the whole State of Himachal Pradish except the tribal areas, as a result some of .
these buses are also plying in 13 clusters/ Planning area notified by the H.P. Govt. and approved by the Ministry of Urban Development of India.
12. It was also claimed that the fare was being charged as per the notification dated 30.11.2013, which only indicated the maximum fare to be charged from the passengers and the respondent was charging less than the minimum with the intention to provide best service to the public at large. The respondent being a public undertaking was under an obligation to provide all transport facilities to the people of the State living in the rural areas regardless to the commercial considerations and was also providing free traveling facilities to 20 categories of the society at the instance of the State Government. On the other hand the petitioners and the other private bus operators were only plying the buses on profitable routes without providing free traveling facilities to any of the category as covered by the H.R.T.C. Therefore, law of equity was in their favour.
13. The State of Himachal Pradesh, Director of Transport and the Regional Transport Authority of different regions have filed a common reply, wherein apart what has been stated by the H.R.T.C. and H.P. Bus Stand Management & Development Authority (supra), it has been submitted that the first scheme sanctioned by the Union Government under JnNURM Scheme-1 was only for Shimla town, whereas the present JnNurm Scheme-II sanctioned by the Union Government in the year 2013 is applicable to the entire State.
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14. In this scheme Special Purpose Vehicles (SPV) are being operated and if the city is small and is fed from adjoining area/ .
cities then the State Government was to notify all such cities and adjoining areas as local planning area and constitute the SPV for such areas. Such SPV after constitution are being operated as city buses under the sc heme in a manner that maximum headway in peak time and non peak time is similar to city bus operations. For this purpose, highly populated areas of the State have been notified in 13 clusters/ planning area and there is no bar for plying buses on another/ cluster routes which were notified by the State Government under section 99 of the Motor Vehicles Act, 1988. It is also reiterated that scheme under section 99 has been notified by the State government hereby objections have been invited for grant of route permits under JnNURM scheme operation as well as other operations of H.R.T.C. We have heard the learned counsel for the parties and have gone through the records of the case.
15. The learned counsel for the petitioners have vehemently argued that JnNURM buses firstly cannot be plied by the H.R.T.C. and if plied, the same can be plied in urban areas of Shimla alone and under no circumstances can be plied either inter district or inter-
State.
16. In so far as plying of these buses on inter-State is concer ned, it has been clarified by the respondents that these buses as of now are not plying inter-State routes. Therefore, now it only remains to be determined as to whether the operation of JnNURM ::: Downloaded on - 15/04/2017 18:16:28 :::HCHP ...8...
buses is confined to the urban area or the same can also be plied in clusters of cities as canvassed by the respondents.
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17. The petitioners themselves have placed on record the guidelines for financing/ purchases of buses and ancillary infrastructure for urban transport systems under JnNURM scheme issued by the Ministry of Urban Development (Urban Transport Division). The relevant clauses of these guidelines are as under:-
"1. Additional Central Assistant (ACA) to the State plans shall be provided for procurement of upto 10,000 buses and ancillary infrastructure for urban transport systems under JnNURM as per the following guidelines.
2. General:
2.1 The sanction of new projects would be allowed in 2013-14 but the completion of projects and release of ACA shall be co-
terminus with JnNURM Phase-1.
2.2. All cities and towns covered under the Urban Infrastructure Governance (UIG) and Urban Infrastructure Development Scheme for Small and Medium Towns and Cities (UIDSSMT) components of the JnNURM will be eligible for ACA.
3. Definitions:
3.1. 'States' shall mean 'States and Union Territories'. 3.2. 'City' shall mean city/ urban agglomeration/ metropolitan area /local planning area, as notified by the State under the relevant statute.
3.3. 'SPV' shall mean a Special Purpose Vehicle set up specifically to operate, manage and maintain city bus service for a particular city. Corporations set up for city specific transport like Delhi Transport Corporation (DTC), Bangalore Metropolitan Transport Corporation (BMTC), BEST, Mumbai would also be included in the definition of SPV.
3.4. .... ......
3.5. SPV for a cluster of cities: If the city is small and is fed from adjoining area/ cities, the State Government can notify all such cities and adjoining areas as 'local planning area' and constitute an SPV for such area. Such SPV can operate city buses under Stage Carriage Permit in the local 'planning area' in a manner that the ::: Downloaded on - 15/04/2017 18:16:28 :::HCHP ...9...
maximum headway in peak time and non peak time is similar to city bus operations.
4. Eligible Components:
.
4.1 & 4.2 ..... ......
4.3. The financing for buses under JnNURM is exclusively for urban transport i.e. city bus service and/ or bus rapid transit system for the city for which buses are procured.
4.4. In order that the buses procured under JnNURM are utilized exclusively for urban transport and also for their efficient and sustainable operation and maintenance, the States/ULBs/para-
statals shall set up a wholly owned SPV for the city for controlling and managing the city bus service/BRTS, if such SPV does not exist presently. All these buses would be operated under stage/city carriage permit only.
5. Detailed Project Report:
5.1 r Detailed Project Report (DPR) shall have to be submitted by State Government/State Level Nodal Agency (SLNA) including details about city bus service/BRTS planning, requirement of ancillary infrastructure, up-gradation of existing infrastructure, financing arrangements, sustainability, user charges, operation, maximum headway in peak and non-peak time, maintenance, the ultimate benefit/outcomes which will become available to the urban commuters (the model guidelines for preparing the DPR as well as a model DPR have been uploaded the MoUD's web-site www.moud.gov.in). In case of city bus service proposed for cluster of cities, the DPR should be a single DPR for the cluster.
...... ....... .......
6.0 Appraisal of Projects:
6.1 The Detailed Project Reports shall be appraised by the
Institute of Urban Transport (IUT) and /or such other institutions as may be approved in future keeping in view the detailed guidelines of the programme and submitted to the Urban Transport Wing of the Ministry, which shall scrutinize the same before placing such proposal for sanction before the Central Sanctioning and Monitoring Committee (CSMC).
7.0 Sanction of Projects :
7.1 The projects duly recommended by States/by the State Level Steering Committee (SLSC) would be submitted to MoUD.
7.2. ..... ..... .....
7.3 The CSMC is authorized to appraise and sanction projects costing upto Rs.500 crore, without further reference to the Expenditure Finance Committee (EFC)/Cabinet Committee on Economic Affairs (CCEA). However, projects costing above Rs.100 crore will require approval of Minister for Urban Development and Finance Minister, in each case. All projects costing above Rs. 500 crore will be approved by the competent authorities as envisaged in Ministry of Finance (Department of Expenditure) O.M. No. 1(26)-
E.II(A)/2002 dated 21.12.2002 as amended from time to time.
7.4 to 7.7 ..... .... ......
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7.8 There is no state-wise or city-wise allocation. The projects would be approved on "first come first served basis" and on the basis of preparedness of the State and the cities.
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7.9 For the North-Eastern region and hill states i.e. J&K, Himachal Pradesh and Uttarakhand, a minimum of 20% of ACA and minimum of 2,000 buses would be earmarked. In case these states are not able to utilize this allocation by 31st January, 2014, their unutilized allocation shall be re-distributed among the other States on the basis of their needs, capacity and preparedness.
8.0 State Level Steering Committee 8.1 At the State level, a State Level Steering Committee (SLSC) would be set up by each State for deciding and prioritizing the projects under the Mission and monitoring the effective and efficient implementation. The SLSC would comprise:
1. Chief Minister or Urban Development Minister or Minister of Housing of the State Chairman r 2. Minister, Urban Development Vice-Chairman
3. Minister, Housing Member
4. Mayors/Chairpersons of Urban Local Bodies (ULBs) concerned Member
5. Secretary (PHE) Member
6. Secretary (MA) Member
7. Secretary (Finance) Member
8. Secretary (Housing) Member
9. Secretary (Transport) Member
10. Secretary (Planning) Member
11. Secretary (UD) Member Secretary
9. ..... ....... .....
10. Financing Pattern 10.1 to 10.3 ...... ..... ......
10.4 In order to prepare City Comprehensive Mobility Plan (CMP), detailed Project Reports (DPRs), Training & Capacity Building, Community Participation, Information, Education and Communication (IEC), a provision of 5% of the Central grant or the actual requirement, whichever is less, may be kept for sanction to cities/towns covered under JnNURM.
11.0 Release of Funds 11.1. to 11.5. ..... ...... ......
11.6 The second installment of 40% of ACA will be released upon receipt of Utilization Certificate (UC) to the extent of 70% of the grants (Central and State) and subject to route permission from competent Transport Authority and operational tie-up."
18. A perusal of the aforesaid guidelines would clearly go to indicate that city has not been defined to mean the city alone but would include city/ urban agglomeration/ metropolitan area/ local planning area as notified by the State under the relevant statute.
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Under clause 3.5, it has been specifically provided that if the city is small and is fed from adjoining area/ cities, then State Government .
can notify all such cities and adjoi ning areas as local planning area and constitute an SPV for such area and such SPV can operate city buses under stage carriage permit in the local planning area in the manner that the maximum headway in peak time and non peak time is similar to city bus operations. Clause 5 provides for preparation of detailed project report (DPR), while clause 6 provides for appraisal of projects and clause-7 qua sanction of projects.
19. The question therefore, arises as to whether respondents have complied with these provisions and is it only thereafter that the buses have been received by them under the scheme. For this purpose, we have to fall back on the minutes of the 3rd CSMC meeting held on 9.10.2013, which have been annexed by the petitioners themselves. Clause 9 pertains to Himachal Pradesh and reads thus:-
"Himachal Pradesh 9.1. On behalf of Urban Development Department, Govt. of Himachal Pradesh, MD, Himachal Road Transport Corporation attended the CSMC meeting and made a comprehensive presentation. He informed that they have prepared detailed DPRs for 13 clusters and requested CSMC to sanction 1100 buses for improvement of public transport system in these clusters. He informed that they deal with around 75 lakh floating population which comes from tourism sector. They have declared 49 semi- urban areas. O&M is being done by HRTC. They have also set up SPV under the Hon'ble Chief Minister. At present they have around 23 depots. They have enough land availability for depot. They have also floated Eol for developing the land in Depot on PPP mode.
9.2. Secretary (UD) requested MD, HRTC to create SPV cluster- wise and it would be appropriate that the SPV should be headed by city/ cluster heads who are actually involved in operation of these buses and Hon'ble CM should not be bothered. He stated that the Ministry's mandate to improve the city transport system and hence Ministry can provide financial assistance for buses/ ancillary infrastructure for cities/ urban agglomeration areas. He requested them to notify the local planning area/ urban agglomeration area to have it a legal status and run the buses to these clusters. OSD(UT) ::: Downloaded on - 15/04/2017 18:16:28 :::HCHP ...12...
& EOJS enquired from MD, HRTC the average route length which HRTC replied that it is around 40 km. After detailed discussion, CSMC sanctioned 800 buses for these 13 cluster of cities as well as ancillary infrastructure subject to the conditions mentioned in .
Para 4 above. "
20. Now in the teeth of what has been recorded in the aforesaid minutes, it does not lie in the mouth of the petitioners to contend that procedural formalities had not been completed either by the central government or the State government before putting these buses to use. The respondents had prepared a detailed DPR for 13 clusters and on the representation of the respondents that SPV would be headed by city/ cluster heads who are actually involved in operation of these buses, the CSMC sanctioned 800 buses for these clusters of cities which were to be operated by the existing operation of HRTC.
21. The next submission of the petitioners' that the respondents have not notified the scheme as envisaged under section 99 of the Act is equally without merit. This court vide order dated 8.4.2015 on the representation of the respondents had permitted them to file supplementary affidavit. The Director Transport has filed an affidavit placing on record the notification dated 10.3.2015 published in the gazette on 20.3.2015. Though as rightly pointed out by the petitioners, the notification does not contain the schedule. However, the respondents have assured this court that necessary schedule shall be issued by way of corrigendum.
22. However, at this state, it only needs to be clarified that since the respondents have notified the scheme under section 99 of the Act, they will be obliged to invite objections and dispose of the same by passing a speaking order in terms of recent judgement of ::: Downloaded on - 15/04/2017 18:16:28 :::HCHP ...13...
Hon'ble Supreme Court in B.A. Linga Reddy and others vs. Karnataka State Transport Authority and others (2015) 4 SCC .
515, wherein the Supreme Court held as follows:-
"16. The pari materia provisions contained in sections 99 and 102 of the Act of 1988 are reproduced hereunder:
"99. Preparation and publication of proposal regarding road transport service of a State transport undertaking.-[(1)] Where any State Government is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of r such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State Government may formulate a proposal regarding a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and other relevant particulars respecting thereto and shall publish such proposal in the Official Gazette of the State formulating such proposal and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deem fit.
[(2) Notwithstanding anything contained in sub- section (1), when a proposal is published under that sub- section, then from the date of publication of such proposal, no permit shall be granted to any person, except a temporary permit during the pendency of the proposal and such temporary permit shall be valid only for a period of one year from the date of its issue or till the date of final publication of the scheme under section 100, whichever is earlier.
xxxxx
102. Cancellation or modification of scheme .-(1) The State Government may, at any time, if it considers necessary, in the public interest so to do, modify any approved scheme after giving-
(i) the State transport undertaking; and
(ii) any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification, an opportunity of being heard in respect of the proposed modification.
(2) The State Government shall publish any modification proposed under sub- section (1) in the Official Gazette and in one of the newspapers in the regional languages circulating in the area in which it is proposed to be covered ::: Downloaded on - 15/04/2017 18:16:28 :::HCHP ...14...
by such modification, together with the date, not being less than thirty days from such publication in the Official Gazette, and the time and place at which any representation received in this behalf will be heard by the State Government."
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17. It is apparent from the provisions that the scheme is framed for providing efficient, adequate, economical and properly co- ordinated road transport service in public interest. Section 102 of the Act of 1988 does not lay down the requirement of recording any express finding on any particular aspect; whereas the duty is to hear and consider the objections. It requires the State Government to act in public interest to cancel or modify a scheme after giving the State Transport Undertaking or any other affected person by the proposed modification an opportunity of hearing. The State is supposed to be acting in public interest while exercising the power under the provision. However, that does not dispense with the requirement to record reasons while dealing with objections. Modification of the scheme is a quasi-judicial function while modifying or cancelling a scheme. The State Government is duty-
bound to consider the objections and to give reasons either to accept or reject them. The rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice.
23. We now proceed to deal with the third contention of the petitioner that after notifying the fares, the HRTC cannot fix lower fare than what has been fixed vide notification dated 30.9.2013. We find force in this submission because after inviting the private players to compete and operate, the HRTC cannot indulge in unfair practice by introducing these promotional fares. This has not only introduced unhealthy competition but has the effect of virtually eliminating the private operators. All the buses procured under JnNURM are new buses and with concessional fares, it is but obvious that majority of passengers would board these buses, whereas the private operators would be left high and dry.
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24. In such situation, it becomes imperative that time table(s) be drawn up even for these buses i.e. JnNURM, that too in .
such a manner that there is equal distribution of passengers and the private bus operators also get their fair share of business. The respondents owe a duty to ensure that there is no heart burning and also to ensure that there is no unhealthy competition. Accordingly, this contention of the petitioners is accepted.
25. In view of the aforesaid discussion, these petitions are partly allowed and directions are issued to the following effect: -
(i) The respondents are directed to finalize the scheme as notified under Section 99 of the Act strictly in terms of the judgement of Hon'ble Supreme Court in B.A.Linga Reddy's case (supra).
(ii) The HRTC is restrained from charging lower fare than the one notified vide notification dated 30.9.2013;
(iii) The respondents are directed to draw up the time table(s) in such a manner so as to ensure equitable distribution of passengers between the buses run by the HRTC and the private operators so that there is no unnecessary heart burning amongst the private operators.
(iv) Remaining reliefs as claimed are declined.
26. With these observations, the petitions are disposed of in the aforesaid terms, leaving the parties to bear their own costs.
( Rajiv Sharma ), Judge.
May 28th , 2015. ( Tarlok Singh Chauhan ),
(Hem) Judge.
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