Rajasthan High Court - Jaipur
Rai Sahib And Etc. Etc. vs State Of Haryana And Anr., Etc. Etc. on 24 January, 1995
Equivalent citations: AIR1996RAJ83
Author: P.P. Naolekar
Bench: P.P. Naolekar
ORDER P.P. Naolekar, J.
1. These petitions were heard together and are decided by a common order as the questions involved for determination and the facts are same.
2. Petitioners are the grantees of the stage carriage permits on inter-Statal route, issued by the Regional Transport Authority (R.T.A.) of the State of Rajasthan. According to the petitioners, they have been granted permits on inter-statal route under a reciprocal agreement concluded between the States of Rajasthan and Haryana arrived at in the joint meeting held on 5th, 6th, 7th and 8th February, 1968, at Chandigarh. When the petitioners approached the R.T.A. of another State for counter-signature of the inter-State route permits, the R.T.A. refused to countersign the permits orally. The R.T.A. is bound to countersign the inter-State permits issued under the reciprocal agreement.
3. According to the respondents, the writ petitions as they are filed, are not maintainable. The petitioners have an alternative remedy of filing an appeal under Section 89(d) of the Motor Vehicles Act, 1988 (for short 'the Act') or to approach the R.T.A. for passing an order in writing and thereafter file an appeal against that order if aggrieved. It is further said that the R.T.A. is an appropriate authority to decide the matter of counter-signature on the inter-Statal permits and is not bound to countersign it, as the agreement of 1968 was rescinded.
4. It is argued by the learned counsel for the petitioners and Mr. R. N. Munshi, learned counsel for the intervenor in two petitions that the agreement of 1968 still subsists and it is not legally rescinded because (i) the notice rescinding the agreement was not given by mutual agreement; and (ii) for rescinding the agreement, the mandatory procedure prescribed in Section 88(5) of the Act was not followed, which is necessary in view of Section 21 of the General Clauses Act, 1897. It is further submitted that in view of the decision rendered by a Division Bench of this Court in Kana Ram v. The Regional Transport Authority, AIR 1990 Raj 143 the reciprocal transport agreement between the States of Rajasthan and Haryana dated 5th, 6th, 7th and 8th February, 1968, is still subsisting.
5. In order to appreciate the rival contentions, it is necessary to consider Section 88 of the Act. Sub-section (1) of Section 88 of the Act lays down that if a permit is granted by one R.T. A. on inter-regional route, then it shall not be valid unless it is contersigned by the other R.T.A. of the other region in that State. Similarly, it provides that R.T.A. of the concerned region of the State can grant a permit for other region of another State and that permit shall be valid if it is countersigned by the State Transport Authority (S.T.A.) of that State or the R.T.A. concerned of that region in the State, that is to say, the R.T.A. of the concerned region can grant a permit on a route or portion thereof which lies in the region of another State and that permit shall be valid if it is countersigned by the R.T.A. of the other State of the concerned region. By virtue of Section 88, the inter-State permit can be issued by the R.T.A. and the permit granted for inter-Statal route shall be valid in other State if it is countersigned by the R.T.A. concerned of that other State. We are not concerned with the other proviso of Sub-section (1) in this case. Sub-section (3) further provides that the countersigning authority while countersigning the permit may attach condition, which could be imposed under the Act, if he had granted the permit and may likewise vary any condition attached to the permit by the authority by which the permit was granted. Thus, by virtue of Sub-section (3), the R.T.A. of another State, who countersigns the permit, steps into the shoes of the R.T.A. who issued the permit so far as imposing the conditions to the permit or for the purpose of varying condition attached to the permit. Sub-section (4) is the provision whereunder Chapter V of the Motor Vehicles Act is imported with relation to grant, revocation and suspension of counter-signatures of permits. However, under the proviso, it is not necessary to follow the procedure laid down in Section 80 for grant of counter-signature of permits where the permit is granted under a reciprocal agreement between the two States where the permits issued by the S.T.A. are required to be countersigned by the S.T.A. or R.T.A. Thus, if there is a reciprocal agreement between the two States, the R.T.A. of the concerned other State, who is a counter-signing authority, shall countersign it without following the procedure laid down in Section 80 of the Act. In this case, if the agreement of 1968 still subsists, then the petitioners shall be entitled to enforce the respondents to countersign the permits issued on the inter-statal route without following the procedure laid down in Section 80 of the Act.
6. By notice dated 7-6-88 exercising the powers under Clause 1 of the inter-State reciprocal transport agreement dated 5th, 6th, 7th and 8th February, 1968, the Commissioner and Secretary to Govt. of Haryana, Transport Department, Chandigarh, had rescinded the agreement entered between the transport authority of Haryana and Rajas-than States after the expiry of six months' notice. Clause 1 of the agreement is as under:--
"This agreement shall be valid till such time as a new agreement between the two States is arrived at or the existing one is rescinded after issue of six months' notice on either side provided that it may be reviewed or modified at the instance of either State and by mutual agreement at any time." .
7. Under Clause 1 of the agreement, the agreement is valid until a new agreement between the two States is arrived at or the existing one i.e. the agreement dated 5th, 6th, 7th and 8th February, 1968, is rescinded by six months' notice on either side. Under the same clause, the agreement could be reviewed or modified at the instance of either State and by mutual agreement at any time. On a plain reading of this Clause 1, the mutual agreement was necessary for review or modification of the terms of the agreement and not for rescission of the agreement between the two States. It is manifest from the language used that either side to the agreement can rescind the agreement by giving six months' notice, for that purpose, the mutual agreement of the two States is not a necessary condition. This is so, because if the parties do not want to continue the agreement, it can be terminated by anyone of them, but only after giving six months' notice so that the rights, expectations and obligations inter se can be adjusted, whereas the mutual consent of the parties is essential condition, where although the agreement continues but the terms of the agreement are reviewed or modified, because in that case both the parties shall be bound by the terms of the continued agreement.
8. Sub-section (5) of Section 88 requires that every proposal for reciprocal 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 Governments concerned in the Official Gazette and in any one or more of the newspapers in regional language having circulation in the area or route proposed to be covered by the agreement together with a notice giving a date by which the representation in connection therewith may be submitted, and that date shall not be less than 30 days from the date of publication in the Official Gazette, the name of the authority, the time and place at which the proposal and any representation received in connection therewith will be considered. Sub-section (6) of Section 8 requires that the reciprocal agreement arrived at between the two States in so far as it relates to the grant of counter-signature of permits, shall 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 having circulation in the area or route covered by the agreement. The S.T.A. of the State and the R.T.A. of concerned shall give effect to it. Sub-sections (5) and (6) are relating to the procedure which is required to be undertaken before and after the reciprocal agreement is arrived at between the States. There is nothing in Sub-sections (5) and (6) or in other provision of the Motor Vehicles Act that for rescinding the reciprocal agreement, the same procedure shall be followed. Section 21 of the General Clauses Act, 1897, also does not provide such procedure for the rescission of the agreement. Section 21 of the General Clauses Act, 1897, lays down that where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. This section provides that the power to rescind shall be exercised in the like manner. To bring about an effective addition, amendment or cancellation of statutory orders, rules or bye-laws, the order or rule or bye-law effecting addition, amendment or cancellation must be made in the manner the original order or rule is required to be made. Section 21 of the General Clauses Act, 1897, in terms applies to the statutory rules or bye-laws, notifications, orders and not to the contracts entered between the parties. It is not necessary to take up the similar procedure to rescind the agreement entered between the States as provided by Sub-section (5) of Section 88 of the Act.
9. No doubt it has been held in para 17 of Kana Ram's case, AIR 1990 Raj 143 (supra), that the inter-statal agreements of February, 1968 as well as of 1969 modified in 1981 are valid agreements unless they are modified or rescinded in accordance with law. But while deciding the question of validity of 1968 agreement, the point for rescission of the agreement of 1968 by six months' notice which expired on 12-8-88 was not taken into consideration and was expressly left open when it is said in para 16 "it may be stated that even if in case of valid agreement, and 1968 agreement has been held to be valid by us and we have refused to say anything about the alleged rescission of above agreement after six months' notice on December 8, 1988, as stated by Mr. Khan, counter-signatures were done only for periods of four months i.e. for less than three years or for duration of permits". It is manifest from the aforesaid that the Court has not considered the effect of the notice given by the State of Haryana while holding that the agreement of 1968 entered into between the State of Rajasthan and State of Haryana is a valid agreement. For the reasons stated in the aforesaid paragraph, I am of the view that the reciprocal transport agreement concluded between the States of Rajasthan and Haryana arrived at in the joint meeting held on 5th, 6th, 7th and 8th February, 1968, was legally rescinded by notice dated 7-6-88 of six months which expired on 12-8-88.
10. As there is no existing reciprocal agreement of 1968 between the States, the petitioners cannot enforce counter-signatures as provided by proviso to Sub-section (4) of Section 88. However, it is open to the petitioners to approach the authority for counter-signature Under Section 88(1) of the Act by taking recourse to Section 80 of the Act. It is for the countersigning authority to countersign the permits issued in favour of the petitioners by imposing the conditions as provided in Section 72(2) of the Act and other conditions, which are applicable under Chapter V of the Act, if necessary. But if it refuses to countersign the permits of the inter-Statal route, then provisions of Section 80(2) of the Act shall be attracted. Section 80(2) is to the effect that where the R.T.A. refuses an application for grant of permit of any kind under the Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter. The order of the R.T.A. refusing the counter-signature is appealable Under Section 89(d) of the Act and thus it is not permissible for the R.T.A. to refuse the counter-signature of the permit of inter-statal route by oral order as complained by the petitioners. The R.T.A. can refuse counter-signature of the permit only after hearing the parties effected, by an order in writing.
In view of the aforesaid, the petitioners are directed to approach the countersigning authority for counter-signature of the inter-statal route permits granted to them and the authority shall pass an order in writing in respect thereof in accordance with law.
11. In view of the aforesaid, the petitions are partly allowed and the parties shall bear their own costs.