Allahabad High Court
Raj Kumar vs State Of U.P. Thru. Prin. Secy. ... on 6 February, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:7918 Court No. - 7 Case :- WRIT - A No. - 1563 of 2025 Petitioner :- Raj Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Transport Deptt. Lko. And 4 Others Counsel for Petitioner :- Alok Saxena Counsel for Respondent :- C.S.C.,Mohd Nazish Iqbal,Sudhir Pande Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel and Shri Mohd. Nazish Iqbal, learned counsel for respondent No.5.
2. The present petition has been filed by the petitioner challenging the order dated 15.10.2024 passed by the State Transport Appellate Tribunal, U.P. Lucknow in Appeal No.13 of 2024, whereby the order impugned before the appellate authority dated 13.03.2024 was set aside and the matter was remanded for consideration afresh in accordance with law.
3. The facts in brief are that respondent No.5, is an operator on the route of Firozabad to Jalesar via Rijawali and holds 9 permits. The petitioner also holds one subsisting permit to run the vehicle on the same routes. It is argued that respondent No.5 applied for grant of as many as 14 permits, which were rejected by means of the order dated 13.03.2024 contained in Annexure No.5 to the petition. While doing so, the authority concerned noticed that respondent No.5 had applied for as many as 14 permits. It is also noticed that in the past also, respondent No.5 had 9 permits issued in his favour and noticing that the issuance of so many permits in favour of the one person, is likely to cause monopoly. It was also observed that it is essential that there should be healthy competition on the routes and based upon the said criteria, the application filed by respondent No.5 for grant of permits was rejected in respect of all the fourteen permits applied for by respondent No.5. The said order dated 13.03.2024 was challenged by respondent No.5 by preferring an appeal under Section 89 of the Motor Vehicles Act before the State Transport Appellate Tribunal, which was registered as Appeal No.13 of 2024. While hearing the said appeal, the Appellate Tribunal framed two points of determination. The first being with regard to the validity of the order dated 13.03.2024. The Appellate Tribunal noticed the provisions of Sections 70, 71, 72 and 80 of the Motor Vehicles Act and after considering the judgement of the High Court in the Case of Mukesh Vs. State Transport Authority and others 2003 (51) ALR 84 proceeded to allow the appeal. While doing so, it was also noticed that it was brought to the knowledge of the Appellate Tribunal that criminal cases were pending against respondent No.5. However, the appeal came to be allowed and the matter was remanded for deciding the matter afresh. However, considering the applications for grant of permits on merits. Challenging the said order, the present petitioner, who is also having the permits on the same routes, has filed the present writ petition.
4. It is specifically argued by learned counsel for the petitioner that the Appellate Tribunal has erred in dealing with the fact with regard to the pendency of the criminal cases against respondent No.5. He further argues that the Appellate Tribunal has erred in not taking into consideration the judgement of the Supreme Court in the case of Mithilesh Garg Vs. Union of India and others AIR 1992 SC 443 and emphasizing on paragraph 15, which is as under:
"The petitioners have further contended that the conditions of roads, social status of the applicants, possibility of small operators being eliminated by big operators, conditions of hilly routes, fuel availability and pollution control are some of the important factors which the Regional Transport Authority is bound to take into consideration while taking a decision on an application for grant of permit. These are the matters which are supposed to be within the comprehension of the transport authorities. The legislative policy under the Act cannot be challenged on these grounds. It is not disputed that the Regional Trans- port Authority has the power under the Act to refuse an application for grant of permit by giving reasons. It is for the authority to take into consideration all the relevant factors at the time of quasi-judicial consideration of the applications for grant of permits. The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of power in granting permits under the liberalized policy."
5. In the light of the said, he argues that the order impugned is liable to be quashed. In terms of the order dated 05.02.2025 passed by this Court, it is informed that after remand, 14 permits have already been granted.
6. Learned counsel for respondent No.5 opposes the petition by arguing that the petitioner is a rival having a permit of the same route and as such petition is initially not maintainable.
7. Reliance is placed upon a judgement of this Court in the case of Ziaul Islam and another Vs. State of U.P. in Writ-A No.14213 of 2017 decided on 22.09.2017. He further relies upon a Full Bench judgement of the Kerala High Court in the case of M.C. Ratheesh and another Vs. the Secretary, Regional Transport Authority AIR 2015 Kerala 86, wherein the Full Bench had occasioned to consider the phrase 'person aggrieved' in the context of a phrase used in Section 90 of the Motor Vehicles Act. He further relies upon a judgement in the case of Smt. Jameela Begum and another Vs. State of U.P. and others; C.M.W.P. No.76001 of 2005, wherein this Court had noticed that the existing operators can avail the remedy of filing a revision under Section 90 of the Motor Vehicle Act.
8. In the light of the said, it is argued that the writ petition deserves to be dismissed. More so, when no injury much less a legal injury has been pleaded in the writ petition.
9. In rejoinder, learned counsel for the petitioner places reliance upon a Full Bench judgement of the Calcutta High Court in the case of Prabhat Pan and Ors Vs. State of West Bengal and Ors; W.P. No.3937 of 2013 decided on 25th February, 2015 and argues that it is not a trite law that the existing operator has no locus to challenge the orders, which are contrary to the statutory provisions. He further argues that in the case of Prabhat Pan (supra), the Calcutta High Court taken into consideration the judgement of the Supreme Court in the case of Mithilesh Garg (supra). He, thus, argues that the petition has rightly been filed and for all infractions, as already argued above, the writ petition deserves to be allowed.
10. Considering the submissions made at Bar, the first issue to be decided is whether the petitioner can file a writ petition challenging the order, in which the petitioner was neither a party. The Calcutta High in the case of Prabhat Pan (supra) had occasion to deal with such an issue and after considering the judgement in the case of Mithilesh Garg (supra) recorded as under:
"The dictum in Mithilesh Garg has, thus, to be confined to a situation where an existing operator is seen to challenge the entry of a rival in his theatre of operation on the ground of the existing operator's business or commercial interests being prejudiced. The judgment cannot be read to imply that an existing operator has no right to complain of an illegal or irregular act of the transport authorities in allowing a new entrant to operate in the same or like field. There is no doubt that it is the commercial interest of an existing operator that may impel him to challenge the grant of a permit to a rival; but if the challenge is based on the perceived irregular or illegal acts and conduct of the transport authorities, the challenge cannot be repelled only on the ground of business rivalry.
The Motor Vehicles Act, 1988 and the rules or policy guidelines framed thereunder bind the transport authorities to act in a particular manner in the matter of grant of permits or allowing commercial plying of vehicles. Several of these statutory provisions have been noticed in the first order of reference and have been referred to by the writ petitioners in course of the present proceedings. Since statutory authorities are bound to act in accordance with law, and the manner in which the law requires them to act, the actions of the statutory authorities are justiciable. If there is a complaint that the grant of a permit or like action is in derogation of the statutory provisions or the rules or policy guidelines framed thereunder or in colourable exercise of authority, the acts complained of can be subjected to judicial review, subject to the complainant suffering or being likely to suffer a degree of prejudice thereby. If the complaint is of the irregular or illegal exercise of authority which results in the complainant being affected or likely to be affected, the status of the complainant as a business rival of the beneficiary of the irregular or illegal executive largesse will not stand in the way of the complaint being received for judicial review. However, if there is a tribunal entitled to receive such complaint, the High Court in exercise of its jurisdiction under Article 226 of the Constitution should be slow to entertain the complaint, unless the act complained of is demonstrably and ex facie without jurisdiction or in complete violation of the principles of natural justice; or, like exceptions apply when the court does not regard the alternative remedy to be efficacious."
11. Similarly, the Kerala High also had occasion to deal with the phrase 'person aggrieved', who can file a revision under Section 90 of the Act. The Kerala High Court was intact with the same in paragraphs 21, 23 and 27.
12. On a conjoint reading of the judgements, it is clear that an existing operator is not absolutely barred from challenging an order. However, it is essential to plead and establish that while passing the directions for grant of permit should be on the ground of illegality or arbitrariness or colourable exercise of power or should be otherwise violative of Article 14 of the Constitution of India.
13. Thus, the first issue is decided accordingly, holding that the private person also has a right to challenge the order. However, challenge is confined to well known criteria of the permit being granted contrary to or derogation of the statutory provisions of the rules or is colourable exercise of the authority.
14. The second issue as arises is whether the grant of permit to respondent No.5 in terms of the order impugned, violates any statutory provisions or any guidelines for the infractions as argued by learned counsel for the petitioner. It is essential to notice that grant of permits is traceable to powers under Section 70, 71 and 72 of the Motor Vehicles Act, 1988. In the State of U.P. for in furtherance of the mandate of the Act, rules have been framed and particularly Rule 62 of the U.P. Motor Vehicles Rules provides for manner of application for permits. The Rules 67 and 68 of the U.P. Motor Vehicles Rules prescribes and confers power upon the transport authority to impose conditions as specified in Rule 67 and Rule 68 of the said Rules. Rules 62, 67 and 68 are quoted herein-below:
"62. Applications for Permits- An application for a permit shall be entered in the register maintained in the office of Secretary, State Transport Authority or the Regional Transport Authority, as the case may be, in the order in which they are received. This register shall be regularly inspected by the Chairman, State Transport Authority/Regional Transport Authority or a senior officer deputed for the purpose by him. The routes available for permits shall be notified publicly on the office notice board and/or through local newspapers. An application for a permit shall specifically mention about ownership of the bus and general reputation or character of applicant. All such applications shall be considered and disposed of by the Authority in accordance with law.
67. Permit: Conditions of- The transport authority shall attach to every permit granted by it the following conditions-
(i) that the vehicle covered by such a permit shall in no case be used in any public place during the period in which the registration certificate and the token relating to it are or have been surrendered in accordance with the provisions of the United Provinces Motor Vehicles Taxation Act, 1935 and the rules made thereunder or have been suspended or cancelled;
(ii) that the vehicle covered by such a permit shall in no case be used in any public place unless the taxes levied by the State Government and payable in respect thereof have been duly paid; and if such tax is not duly paid within the period specified in the United Provinces Motor Vehicles Taxation Act, 1935, The Uttar Pradesh Motor Gadi (Yatrikar) Adhiniyama 1962 or the U.P. Mtor Gadi (Malkar) Adhiniyam, 1964, as the case may be, in shall be presumed that the holder of permit has intentionally evaded the payment of such tax;
(iii) that save as provided in sub-section (1) of Section 82, the permit shall not be transferred to any other person except with the permission of the Transport Authority which granted the permit;
(iv) that the vehicle shall be used in the area or on the route or the routes specified in the permit;
(v) that the maximum number of persons or maximum weight of luggage that may be carried in the vehicle covered by the permit shall not exceed as given in the certificate of registration;
(vi) that only such advertising matters as are directly related to the permit-holder's business in furtherance of which the permit is obtained and which does not in any way change the identity of the vehicle, may be displayed on the vehicle save on any part of the bonnet, front screen, windscreen and dashboard of Vehicle:
Provided that no advertising matter shall cover or be at a distance of less than 20 centimetres of any material descriptions painted, inscribed or fixed in or over the vehicle.
(vii) that the holder of the permit shall cause the permit to be carried in the vehicle in such a manner that it is readily available for inspection at any time by any authorized person.
68 Permits for stage carriages: Special conditions of- The Transport Authority may also attach to a stage carriage permit one or more of the following conditions-
(i) that no person person other than the permit-holder or any other person duly authorised by him or a driver or a conductor or a paid clerk in the employ of the permit-holder shall operate the vehicle; and
(ii) that the vehicle shall cover the entire route for which the permit has been granted in each journey;
(iii) that the copies of the duty lists of Drivers and Conductors shall be exhibited on the vehicle and at specified stands and halts on the route;
(iv) that mail shall be carried on the vehicle subject to such conditions as may be specified and on such rates as are fixed by the Transport Authority in consultation with the postal authorities;
(v) (a) That luggage of passengers up to 20 kilograms per passenger shall be carried free of charge in a Stage Carriage in all the regions.
(b) that the following shall be treated as passenger's luggage and will be carried free of charge on the roof of the stage carriage-Hand harmonium in box, non-folding charkha, pet birds in small cage (they could be carried inside the bus if no inconvenience is caused to the passengers) hand sewing-machine, gramophone, portable typewriter, radio (properly packed unless it can be carried under the seat) dry 6-volt battery;
(c) that the following will be charged separately as for 18 kilograms-children's tricycles, folding campcot, folding table or folding chair not weighing more than 18 kilograms;
(d) the following will be charged separately as for 37 kilograms-bicycles, non-folding chairs, tea tables, small almirahs or racks, beds, etc. which can be conveniently carried on the bus and which do not weigh more than 37 kilograms;
(e) that no charge will be made for the following articles provided they can be carried under the seat occupied by the passenger to whom the articles belong-folding charkha, ghee in a closed tin, thermos flask, small tiffin carrier or small tiffin case, sticks and umbrellas, china tea-set, a set of six tumblers and glass jug, small attache case, book, fruits or articles of food, table fan (packed) and typewriter (standard, packed); provided that one passenger may carry only one such bundle under his seat.
(vi) that when in the interest of public order, public safety or in an emergency, the transport authority by whom the permit is granted issues direction to the permit-holder to use, stage carriage on a route or in an area other than one specified in the permit, the permit-holder shall use the stage carriage on such route or in such area and during such period and at such timings as may be specified in the direction."
15. In the backdrop of the said statutory provisions, it is clear that the grant of permit operates within the framework of the statutory provisions and the rules as recorded above. The provisions which are existing in the old Act being Section 47 and 57 were given away in the new Motor Vehicles Act. The said issue was considered in the case of Mithilesh Garg (supra), wherein the Supreme Court noticed that the effort of the Government was to liberally grant the permits on the routes, which was also noticed in furtherance of the right of the people under Article 19 of the Constitution of India. Paragraph 15 in Mithilesh Garg (supra) considers and explains the manner, in which a regional transport authority can exercise the power in granting or refusing the permit. The transport authority has to act within the framework and boundary of the rules specifically the rules as noticed above for either refusing or granting the permit. There existing no such condition that the permits are to be limited or restricted in favour or against a person so as to prevent the monopoly to any particular operator is neither prescribed under Rule 67 nor under Rule 68 nor does flow from the observations made in paragraph 15 of the judgement in the case of of Mithilesh Garg (supra).
16. As such, I do not find any reason to support the contentions of learned counsel for the petitioner that the grant of so many permits in favour of respondent No.5 by the authority would create monopoly and would be contrary to any statutory scheme. The other issue with regard to the criminal antecedents of respondent No.5, it is no doubt true that in terms of the Rule 62, it is essential that the disclosure with regard to the reputation or character of the applicant have to be made in the application. However, mere pendency of criminal case is not enough to determine the reputation or character of an applicant. Prima facie, there is no material to suggest that respondent No.5 has been convicted of any offence alleged against him. In any case, these aspects are within the domain of the transport authority to consider while granting or refusing the permit. Once the authority has granted the permit to respondent No.5 and there is no challenge to the said permits in the present writ petition, no relief as sought can be granted.
17. The writ petition is devoid of merits and is, accordingly, dismissed.
Order Date :- 6.2.2025/Ashutosh