Madhya Pradesh High Court
Mohd. Anwar Khan vs The State Of Madhya Pradesh on 6 August, 2021
Equivalent citations: AIRONLINE 2021 MP 1548
Author: Vivek Rusia
Bench: Vivek Rusia
-: 1 :-
W.P. Nos.1402/2021, 1467/2021,
1739/2021, 1750/2021 & 7831/2021.
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH: HON. Mr. JUSTICE VIVEK RUSIA)
W.P. No. 1402 OF 2021
Mohd. Farhan Khan S/o. Mohd. Anwar Khan
Aged : 38 years, Occupation : Business,
Address : 86, University Road, Freeganj, Ujjain. .. Petitioner.
Vs.
1. State of M.P. through Principal Secretary,
Transport Deptt., Mantralaya, Vallabh Bhawan,
Bhopal
2. Transport Commissioner, Moti Mahal, Gwalior.
3. Regional Transport Authority,
Regional Transport Office, Bharatpuri, Ujjain.
4. Secrertary, Regional Transport Authority,
Regional Transport Office, Bharatpuri, Ujjain.
5. Karan Yadav S/o. Shri Bal Krishna Yadav
Age - Adult, Occupation : Business,
R/o. 29, Nikas Chauraha, Ujjain (M.P.). .. Respondents.
W.P. No. 1467 OF 2021
Mohd. Anwar Khan S/o. Late Mushtaq Ahmed Khan
Aged : 68 years, Occupation : Business,
Address : 86, University Road, Freeganj,
Ujjain (M.P.) .. Petitioner.
Vs.
1. State of M.P. through Principal Secretary,
Transport Deptt., Mantralaya, Vallabh Bhawan,
Bhopal
2. Transport Commissioner, Moti Mahal, Gwalior.
3. Regional Transport Authority,
Regional Transport Office, Bharatpuri, Ujjain.
4. Secrertary, Regional Transport Authority,
Regional Transport Office, Bharatpuri, Ujjain.
5. Kunal Yadav S/o. Shri Bal Balkishan Yadav
Age - Adult, Occupation : Business,
R/o. 29, Nikas Chauraha, Ujjain (M.P.). .. Respondents.
W.P. No. 1739 OF 2021
Mo. Iliyas S/o. Haji Ismail
Aged 45 years, Occ. Bus Operator,
R/o. Patel Park Agar, District Agar (M.P.). .. Petitioner.
Vs.
-: 2 :-
W.P. Nos.1402/2021, 1467/2021,
1739/2021, 1750/2021 & 7831/2021.
1. The Secretary, Regional Transport Authority,
Ujjain.
2. The Chartered Bus Pvt. Ltd. through the
Director, R/o. 30, Residency Area, A.B. Road,
City Transport Campus, Indore. .. Respondents.
W.P. No. 1750 OF 2021
Mo. Harun S/o. Haji Ismail
Aged 62 years, Occ. Bus Operator,
R/o. Patel Park Agar, District Agar (M.P.). .. Petitioner.
Vs.
1. The Secretary, Regional Transport Authority,
Ujjain.
2. The Chartered Bus Pvt. Ltd. through the
Director, R/o. 30, Residency Area, A.B. Road,
City Transport Campus, Indore. .. Respondents.
W.P. No. 7831 OF 2021
Mohammad Waseem S/o. Mohammad Harun
Aged 35 years, Occupation : Business,
Address : 16/3, Chipa Bakil, Indore (MP). .. Petitioner.
Vs.
1. State of M.P. through Principal Secretary,
Transport Deptt., Mantralaya, Vallabh Bhawan,
Bhopal
2. Transport Commissioner, Moti Mahal, Gwalior.
3. Regional Transport Authority,
Regional Transport Office, Bharatpuri, Ujjain.
4. Secrertary, Regional Transport Authority,
Regional Transport Office, Bharatpuri, Ujjain.
5. Chartered Bus Pvt. Ltd. through its
Authorised Signatory, R/o. 30, Residency Area,
A.B. Road, Indore. .. Respondents.
***********************
Shri Amit S. Agrawal, Sr. Advocate with Shri Arjun Agrawal, Advocate for
the petitioners in W.P. Nos. 1402/2021, 1467/2021 & 7831/2021.
Shri Moeed Ali Bohra, Advocate for petitioners in W.P. Nos. 1739/2021
& 1750/2021.
Smt. Archana Kher, Dy. Advocate General for the respondents/State.
Ms Mini Ravindran, Advocate for private respondents.
***********************
ORDER
(Passed on 6th August 2021) As the facts and grounds pleaded in all the aforesaid writ petitions are identical, therefore, they are being disposed of by this common -: 3 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
order. For the sake of convenience, the facts and grounds mentioned in W.P. No.1402/2021 are being taken into consideration.
1. Facts of the case, in short, are as under:
The petitioner is engaged in the business of public transportation and having stage carriage permit No. 675/TP/20/0027 on the route Neemuch to Indore via Jaora valid for the period from 1.12.2020 up to 31.1.2021. Respondent No.5 who is also engaged in the business of public transportation applied for a grant of temporary permit on the route Neemuch to Indore via Jaora for the period 7.10.2020 to 31.1.2021. The petitioner submitted an objection by raising a specific ground of lack of jurisdiction of respondents No. 4 to entertain the application for a temporary permit. By the impugned order dated 3.12.2020, respondent No.4 has granted the temporary permit to respondent No.5 ignoring the objection taken by the petitioner. Against the aforesaid grant of the temporary permit, the petitioner preferred the revision under section 90 of the Motor Vehicles Act, 1988 (hereinafter referred as "MV Act" for short) before State Transport Appellate Tribunal, Gwalior (in short :the STAT). Vide order dated 12.1.2021 the STAT has dismissed the revision, hence the present petition before this Court.
Since the period of temporary permit given to respondent No.5 had already been expired, since the petitioner is questioning the authority of respondent No. 4 hence the writ petition is being decided. In the other four petitions, the petitioners are challenging the similar action of respondent No.4 because the application for temporary permits are being continuously considered regularly without authority.
After notice, respondents No. 1 to 4 and respondent No.5 have filed separate returns.
2. Shri Amit S. Agrawal, learned senior counsel appearing for the petitioner argued that by the impugned order the STAT has not only affirmed the order passed by respondent No.4, but also held that the petitioner has no locus to raise an objection and prefer a revision before the STAT. Learned senior counsel further submitted that under the provisions of Section 68(1) of the MV Act, the State Government has the power to constitute State -: 4 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
Transport Authority (STA) as well as Regional Transport Authority (RTA) to exercise and discharge the powers and functions specified in sub-section (3). There has to be an official Gazette Notification u/s. 68(1) of the MV Act for the constitution of STA and RTA. Rule 2(h) of M.P. Motor Vehicles Rules, 1994 (hereinafter referred to as "MV Rules" for short) defines "Regional Transport Authority" which includes Additional Regional Transport Authority and Assistant Regional Transport Authority. Under rule 67 of the MV Rules, the RTA has the power to delegate his power to Chairman, Secretary, Additional Secretary or Assistant Secretary and as per rule 64 of the MV Rules, any officer not below the rank of Regional Transport Officer (RTO) shall be the Secretary of the RTA. Likewise, Additional RTO will be the Additional Secretary to RTA and Assistant RTO will be the Assistant Secretary to RTA. It is further submitted that vide Gazette Notification dated 5.11.2015 the State Government constituted a Single Member RTA for various regions including Ujjain for discharge of the functions within the limits of 10 regions and for each region, Regional Dy. Transport Commissioner ex-officio has been appointed, but for the Ujjain region, the Regional Transport Commissioner was appointed as RTA ex-officio. However, in the English version of the said Notification dated 5.11.2015, Regional Dy. Transport Commissioner, Ujjain is mentioned, but in the State of M.P. where the official language is Hindi, therefore, as per the Hindi version Regional Dy. Transport Commissioner has been appointed as RTA.
Shri Amit S. Agrawal learned senior counsel, further submitted that vide order dated 4.6.2020 one Santosh Kumar Malviya being Assistant RTO, Jabalpur has been given the charge of Assistant RTO, Ujjain and by order dated 1.10.2020 one Mr. Arun Kumar Singh who is Regional Dy. Transport Commissioner, Gwalior, Chambal Region has been given the additional charge of various other regions viz. Indore, Ujjain, Bhopal, Narmadapuram, Sagar, Jabalpur, Rewa and Shehdol and has also been conferred with the powers to perform the duties as RTA. Since Mr Arun Kumar Singh is a Regional Dy. Transport Commissioner, therefore, could not have exercised the power of RTA in Ujjain Division by virtue of the Hindi version of -: 5 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
Gazette Notification dated 5.11.2015. In support of his contention, he has placed reliance on the judgment passed by this Court in the case of Surendra Tanwani V/s. State of M.P. (W.P. No.4001/2017) wherein this Court has held that STA or RTA can be constituted by the State Government only by publishing a notification in the Official Gazette and not otherwise. Therefore, the impugned temporary permit issued by respondent No.4 is without any authority and the STAT has committed an error of law in dismissing the revision.
So far as locus standi of an existing operator is concerned, Shri Amit S. Agrawal, learned senior counsel for the petitioner, submitted that in the case of Mithilesh Garg V/s. Union of India : (1992) 1 SCC 168 the apex Court has nowhere held that the existing operators do not have the right to object. The Division Bench of this Court in MPSRTC V/s. STAT : 1994 (I) MPWN 16 and in the case of Kalim Mohd. V/s. STAT : 1994 (I) MPWN 15 has held that the existing operators have the right to object to the grant of a permit. By way of an alternative submission, Shri Agrawal learned senior counsel has submitted that this court comes to the conclusion that the existing operators have no locus to raise an objection in an application submitted for grant of the temporary permit than it may kindly held that in a case of illegality in issuing the temporary permit, then it may kindly be held that any person can challenge the said permit by way of a revision before the STAT The Full Bench of Calcutta High Court in the case of Prabhat Pan V/s. State of Bengal : AIR 2015 Cal. 112; and the judgment passed by five Judges Special Bench of Kerala High Court in the case of M.C. Ratheesh V/s. The Secretary, RT : AIR 2015 Ker. 86, have held that the existing operator has a right to raise an objection on the ground of illegality in granting the temporary permit, the right of the existing operator to file a revision u/s. 90 of the MV Act or a writ petition or a writ appeal cannot be denied.
The petitioner has raised other objections on the merits of the case like non-compliance of Rule 72(3) of the MV Rules; objective determination of particular temporary need; formulation of the route; etc. As said above, since -: 6 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
the impugned permit is not in existence now, therefore, all these objections have become otiose for consideration in this petition and this Court is entertaining these petitions only on the issue of jurisdiction of respondent No.4 and the locus of the petitioner.
3. Per contra , Smt. Archana Kher learned Dy. Advocate General appearing for respondents/State, submitted that vide Notification dated 5.11.2015 the State Government in the exercise of powers conferred under sub-section (2) of Section 68 of the MV Act constituted a Single Member RTA who shall exercise and discharge the powers and functions throughout the related areas. Sub-section (3) of Section 213 of the MV Act provides that the State Government shall make rules to regulate the discharge of functions by the officer of the Department and Rule 244 (1) gives authority to the Secretary, Transport Commissioner; Secretary, State Transport Authority; Dy. Transport Commissioner; and Assistant Secretary, Assistant Transport Commissioner to exercise the jurisdiction over the entire State of M.P. Therefore, vide order dated 1.10.2020 Arun Kumar Singh Dy Transport Commissioner has been directed to discharge the powers of RTA, Ujjain and other regions of Gwalior. It is further submitted that there was a typing mistake in the Hindi version of Gazette Notification dated 5.11.2015, hence by way of Gazette Notification dated 24.2.2021 the anomaly occurred in the Hindi version of Notification dated 5.11.2015 has been omitted by replacing the words "Kshetriya Parivahan Ayukta Ujjain Sambhag" from the words "Kshetriya Up Parivahan Ayukta Ujjain Sambhag". Therefore, the sole ground raised by the petitioner in respect of the authority of respondent No.4 goes.
It is further submitted by the learned Dy Advocate General that learned senior counsel for the petitioner has argued that the Santosh Kumar Malviya was not regularly posted as RTO Ujjain hence he could not have acted as Secretary Regional Transport Authority without notification, is unfounded , because the petitioner is having the permit issued by the same authority. Section 68(5) of the MV Act authorises the Regional Transport Authority to delegate its power and functions to such authority or person, to -: 7 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
Chairman, Secretary, Additional Secretary or Assistant Secretary under rule 67 of the MV Rules. Therefore, the conjoint reading of Section 87 and sub- section (7) of Section 88 ,rule 64, 65 of the MV Rules,and the resolution dated 3.10.2020 empowering the ARTO to Act as secretary Regional Transport Authority, there is no illegality in issuing the permit in favour of respondent No.5. The Division Bench of this Court in the case of Sheikh Mohammad Anees V/s. State of M.P. : 2019 (3) MPLJ 656 has held that the RTA, as well as RTO both, are competent to grant the permit. The Division Bench has distinguished the judgment passed in the case of Surendra Tanwani (supra) by holding that the Gazette Notification dated 5.11.2015 issued u/s. 68 of the MV Act authorising Divisional Dy. Transport Commissioner to act as RTO was not brought to the notice of the Court. Learned Dy. Advocate General further submitted that in view of the dictum of law laid down by the Apex Court in the case of Mithilesh Garg (supra) and Munavar Jahan Begum V/s. Union of India: 1992 JLJ 180 it has been settled that the rival operators cannot raise objection in respect of grant of permit to another transporter as there is no prejudice caused to them. The State Government has the power to issue as many as permits looking to the current need in the said locality. The validity of such power had already been upheld by this Court as well as by the apex Court.
4. Ms. Mini Ravindran, learned counsel appearing for respondent No.5 has adopted the argument of the respondent/State Government. She has further added that once the existing operator has no right to raise any objection in respect of grant of permit, then the right to file a revision or a writ petition under Article 226 of the Constitution of India before this Court would not be available to them. Once it has been held that it is purely a prerogative of the State Government for issuing as many as permits and the existing permit holder has no locus to take a plea that there was no need for a temporary permit, and it will affect their business. The law laid down by the Allahabad High Court and Kerala High Court is not binding on the State Government. Hence, no interference is called for and the petitions have been rendered infructuous. No academic issue is involved, and the petitions are -: 8 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
liable to be dismissed.
5. Issues to be decided:
Issue No.1 - Whether the temporary permit issued by respondent No.4 is without any authority?
The impugned permit dated 12.10.2020 is signed and issued by the Secretary, RTA, Ujjain and according to the petitioner, Santosh Kumar Malviya is holding additional charge of ARTO Ujjain has no authority to entertain the application for grant of temporary permit and issue such a permit although the petitioner is also enjoying the stage carriage permit for the same route issued by the same authority i.e. Secretary, RTA, Ujjain. But since it is a legal issue, therefore, this Court is deciding the same in the interests of justice.
Rule 2(h) of M.P. Motor Vehicles Rules, 1994 defines - "Regional Transport Officer: "Additional Regional Transport Officer" or "Assistant Regional Transport Officer" means any officer appointed as such by the State Government for any region or area to perform the duties and functions under the Act and these rules. As per rule 64, the RTA is a Single Member authority in which the RTO or any other officer of the Transport Department not below the rank of RTO shall be the Secretary to the RTA. It further says that the Additional RTO shall be the Additional Secretary of the RTA and there may be an Assistant Secretary not below the rank of Assistant RTO, as may be nominated by the Chairman, RTA. Rule 67 of the MV Rules provides delegation of powers of the RTA. The RTA may by general or special resolution recorded in its proceedings and subject to such restrictions, limitations and conditions, delegate its powers to Chairman, Secretary, Additional secretary, or Assistant Secretary of the authority to grant, refuse or renew stage carriage permit u/s. 72 and 74 of the M.V. Act. Under sub-rule (2) of rule 67, the RTA may also be general or special resolution delegate the power to a Collector of the District to grant a temporary permit under clauses (a) and (b) of sub-section (1) & (7) of Section 87 and Section 88 of the MV Act, as the case may be, for a limited period. Therefore, it is clear from the aforesaid two provisions that under -: 9 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
rule 64 the RTO shall be the Secretary of the RTA; Additional RTO shall be the Additional Secretary of RTA; and Assistant Secretary shall be Assistant RTO, and under rule 67 (1) & (2) the RTA by way of a special resolution may delegate its powers to Chairman, Secretary, Additional Secretary or Assistant Secretary of the Authority to exercise the powers u/s. 72 and 87 of the MV Act, which deals with the issuance of a stage carriage permit or temporary permit. Under rule 2(h), the RTO, Additional RTO, Assistant RTO are the officers appointed by the State Government for any region or area to perform the duties and functions under the MV Act and MV Rules, more precisely, power to grant or refuse to grant stage carriage permit and temporary permit. Therefore, there is no distinction between RTO, Additional RTO and Assistant RTO and all are authorized and competent to exercise the power of RTA under section 72 and 87 of MV Act while holding the post of Secretary, Additional Secretary and Assistant Secretary of RTO by virtue of resolution issued under rule 67 by the RTA. Hence, the ground taken by the petitioner that Santosh Kumar Malviya being Secretary, RTA is not competent authority to issue a permit is not tenable and liable to be rejected.
According to the petitioner, Santosh Kumar Malviya, the Assistant RTO, Regional Dy. Transport Commissioner was given additional charge of the post of Regional Transport Officer, Ujjain in place of Ms Reena Kirade vide order dated 4.6.2020 and Arun Kumar Singh, the Divisional Dy. Transport Commissioner, Chambal Division was given the additional charge of the post of Divisional Dy. Transport Commissioner, Indore, Ujjain, Bhopal, Narmadapuram, Sagar, Jabalpur, Rewa and Shehdol with a specific direction to discharge the duties of RTA vide order dated 1.10.2020. According to the petitioner, u/s. 68(1) of the MV Act, there has to be a notification to the said effect, but as held above, Notification dated 5.11.2015 read with Notification dated 24.2.2021, the Regional Dy.
Transport Commissioner Ex-officio has been appointed as RTA of Ujjain Division. Therefore, no individual Notification is required to be issued by the name of the transport officers for the appointment as RTA. Whosoever is -: 10 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
posted against the post of Regional Dy. Transport Commissioner shall be an RTA of that Division. Since Arun Kumar Singh is posted as Regional Dy. Transport Commissioner at Gwalior, therefore, by virtue of rule 244(1) of the MV Rules, the Secretary; the Transport Commissioner; the Secretary, STA; the Dy. Transport Commissioner; and Assistant Transport Commissioner shall exercise jurisdiction over the entire State of Madhya Pradesh. Therefore, conferring power to Arun Kumar Singh to discharge the powers of RTA, Ujjain division by order dated 1.10.2020 is valid in the eyes of law.
So far as the posting of Santosh Kumar Malviya is concerned, the respondent/State Government has filed the copy of the order dated 25.9.2020 vide Annexure R/4 whereby he has been transferred from Jabalpur to Ujjain in the capacity of RTO, Ujjain. Vide Resolution dated 3.10.2020, Arun Kumar Singh, Divisional Dy. Transport Commissioner & Regional Transport Authority, Indore, Ujjain, Bhopal, Narmadapuram, Sagar, Jabalpur, Rewa & Shehdol, has delegated its powers u/s. 87(1)(c) of the MV Act to the Secretary/Additional Secretary of RTA, Indore, Ujjain, Bhopal, Narmadapuram, Jabalpur, Sagar, Rewa & Shehdol in exercise of powers under rule 67(1) and 64(1) of the MV Rules. The Division Bench of this Court in the case of Sheikh Mohammad (supra has held that the Divisional Dy. Transport Commissioner becomes RTA by virtue of Gazette Notification dated 5.11.2015 and he was an Authority to act as an RTA u/s. 68 of the MV Act and there is no illegality in the permit granted by him. Therefore, this ground is also not tenable. Respondent No.4 has not committed any error in issuing the temporary permit in favour of respondent No.5 and the STAT has also not committed any error in dismissing the revision filed by the petitioner.
Issue No.2 - Anomaly occurred in Hindi and English version of Gazette Notification dated 5.11.2015 :
In the Hindi version of Gazette Notification dated 5.11.2015, there is mention of "Regional Transport Commissioner" and in the English version, there is mention of "Regional Dy. Transport Commissioner" and the said -: 11 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
anomaly has been rectified by issuing Gazette Notification dated 24.2.2021 and in Hindi version, the words "Kshetriya Parivahan Ayukta Ujjain" have been replaced by the words "Kshetriya Up Parivahan Ayukta Ujjain" and this amendment will relate back to the original date of Gazette Notification dated 5.11.2015. There was a typing mistake in the Hindi version because except in Ujjain, in every Division the power of RTA has been given to the Regional Dy. Transport Commissioner, then there was no reason for conferring the power to Regional Transport Commissioner in Ujjain Division only.
Issue No. 3 - Locus of the petitioner :
So far as the issue of locus of the petitioner i.e. existing permit holder in objecting to the grant of temporary permit is concerned, this Court in the case of Sattar Khan V/s. Secretary, Regional Transport Authority (W.P. No.6889/2020 decided on 19.3.2020) has held that the existing transporter or permit holder has no locus to raise an objection in the application submitted for grant of the temporary permit, therefore, I have no reason to take a different view.
Shri Amit S. Agrawal, learned senior counsel appearing for the petitioner, has raised an alternative submission that even if it is held that the petitioner being an existing operator has no locus to object, but he has locus to challenge the temporary permit by way of filing of revision or by way of a writ petition alleging illegality in the permit. In support of his contention, he has placed reliance on the judgment passed by the five Judges Bench of Kerala High Court and Calcutta High Court.
So far as the right of revision is concerned, it is settled law that it is a statutory right given under the statute. U/s. 90 of the MV Act, the STAT may or on an application made to it call for a record of the case in which the order has been made by the Transport Authority or STA or RTA against which no appeal lies and if it appears that the impugned order made by the authority is improper or illegal, the STAT may pass such order in relation to the case as it deems fit. This right of revision has not been restricted to any person. The STAT may entertain an application made to it calling upon the -: 12 :- W.P. Nos.1402/2021, 1467/2021, 1739/2021, 1750/2021 & 7831/2021.
legality and validity of the order passed by the STA or RTA, therefore, any person can prefer a revision. The right u/s. 89 of the MV Act is also available to any person, but he should be aggrieved by the eventuality mentioned in sub-clause (a) to (g) of sub-section (1) of section 89. Therefore, the existing permit holder who has a grievance against the grant of the temporary permit has no right to file an appeal u/s. 89 because no appeal lies against the grant of the permit. An appeal lies only on refusal to grant the permit or any condition attached to the permit granted to him. Therefore, the petitioner has a right to file a revision against the order passed by the STA or RTA if the challenge is based on the perceived irregularity and illegal act or the conduct of the Transport Authority within the scope of revisional power. Hence, this allowed only to the extent that the STAT has wrongly held that the petitioner has no locus to file a revision against the grant of permit.
In view of the above discussion, this petition is allowed in part, impugned order dated 12.1.2021 passed by the STAT is set aside to the extent indicated above. The photocopy of this order be kept in other connected writ petitions.
No order as to cost.
( VIVEK RUSIA ) JUDGE.
Alok/-Digitally signed by ALOK GARGAV
Date: 2021.08.06 18:12:08 +05'30'