Jammu & Kashmir High Court
Gurdeep Singh vs State Of J&K And Others on 28 January, 2014
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP No. 853 OF 2009 AND CMA No. 1111 OF 2009 AND CMA No.D-2049 OF 2010 Gurdeep Singh Petitioners State of J&K and others Respondent !Mr. S.K.Shukla, Advocate. ^Mr. B.R.Chandan, G.A. for Respodnents 1 to 4 Mr. R.Koul, Advocate for Respondent no.5 Mr. K.K.Pangotra, ASGI for Resp.6&7 Honble Mr. Justice Tashi Rabstan, Judge Date: 28.01.2014 :J U D G M E N T :
1. Briefly put, the facts as projected in writ petition on hand are that petitioner is a Transporter by profession and engaged in the business of carrying passengers for hire from one place to another and for doing so, owns and operates a fleet of transport vehicles commonly known as Passenger Buses. Petitioner is doing his business under the name and style of M/s Pritam Bus Service.
2. Respondent No.5, i.e. Jammu and Kashmir State Road Transport Corporation (J&KSRTC in short), which claims to have exclusive right to operate their buses on Jammu- Srinagar national highway, suffers from acute shortage of buses and other infrastructural requirement. Respondent No.5 was, thus, not in a position to meet the demand of buses, which were required by respondent No.7 for carriage of its troops from Jammu to Khanabal-Srinagar and back. In view of failure on the part of respondent No.5 to meet the requirement of Army authorities, respondent No.7 with the 2 permission of respondent No.5 decided to carry its troops by engaging the transport vehicles from private transporters at affordable cost. The troops movement from Jammu to Srinagar and back is necessitated due to the law and order situation in the Valley and to guard the frontiers of the country. Keeping in view the requirement of Army and the failure of Respondent No.5 to provide adequate fleet of buses to meet the emergent situation, Respondent No.6, vide his Order dated 27th March 2006, promulgated a policy in this regard and made a provision for calling of open bids from the interested parties to carry out the job of transporting Army troops from Jammu to Srinagar and back. In pursuance of the policy decision of Respondent No.6, Respondent No.7 invited bids for Civil Hired Contract (CHT) for carrying the troops from Jammu to Khanabal-Srinagar and back in the year 2008-09. Petitioner along with others participated in the bids and eventually emerged as successful bidder.
3. While the contract for carrying the troops had been awarded in favour of petitioner, respondent No.1 vide order dated 22nd February 2008 ordered, inter alia, that private transporter shall ply their vehicles under the control of Managing Director, J&K SRTC. This communication was challenged by KMD Association Private Limited in the Srinagar Wing of this Honble Court. The Honble Court, vide its order dated 25th March 2008, stayed communication dated 22nd February 2008. The petitioner, thus, successfully carried out the contract in the year 2008-09, though unnecessary and uncalled for hindrances were created by respondents Nos. 1 to 5.
4. Again vide No. 31522/CONT/2009-10/ST-11 dated 12th November, 2008, sealed tenders were invited by 3 Respondent No.7 for carriage of its troops by private transporters from Jammu to Khanabal (Srinagar) and back for the year 2009-10. Petitioner, being eligible in terms of the tender notice, submitted his bid along with many others including respondent No.5 and this time as well emerged as successful bidder for the route Jammu/BD Bari to Srinagar and back. While conveying this to petitioner vide communication dated 13th May, 2009, Respondent No. 7 also called upon petitioner to produce the renewal route permits so as to enable Respondent No.7 to finalize the contract. It would be pertinent to mention here that during the year 2007-08, Transport Commissioner-respondent No.2 issued a communication dated 12th February 2008, granting permission to private transporters for transportation of Army troops only for the remaining period of the financial year, i.e. upto 31st March 2008. Similarly, as already submitted, respondent No.2 vide his communication dated 22nd February 2008, further provided that the private buses, if any, engaged by the Army will ply under the control of respondent No.5. Both these communications came to be challenged by petitioner through medium of OWP No. 329 of 2008, in which petitioner, besides seeking a writ of certiorari quashing aforesaid communications, also sought a writ of mandamus commanding upon respondents 2 to 4, to issue requisite permits in favour of petitioner for carriage of Army troops from Jammu to Khanabal (Srinagar) and back without any delay. This writ petition was resisted by respondents by taking, inter alia, the stand that in view of provisions of SRO 314 of 1976 dated 26th May, 1976 read with SRO 358 of 1974 dated 23rd July, 1974, the Jammu-Srinagar Highway was a nationalized route and the J&K SRTC was the only authorized authority to ply vehicles on the said route. Similar 4 was the stand taken by J&K SRTC, who also came to be impleaded as party-respondent during pendency of aforesaid writ petition. In the meanwhile, respondent No.3, in pursuance of interim direction dated 28th May 2008 passed in aforesaid writ petition, passed a consideration order vide his No:902-05/RTOJ/08/PA dated 2nd March, 2009 and, thus, rejected the application filed by petitioner on 24th February 2009, for grant/issuance of further temporary permits on the ground that the same was not warranted in light of Clauses
(a) to (d) of Sub Section (1) of Section 87 of Motor Vehicles Act of 1988 (for brevity Act of 1988). In view of this consideration order passed by Respondent No.3, writ petition filed by petitioner, i.e. OWP No.329 of 2008, was rendered infructuous and, accordingly, petitioner sought permission of the Court to withdraw the writ petition with liberty to file fresh petition challenging the order of respondent No.3 dated 2nd March, 2009 (supra). The petition was dismissed by this Court with liberty as prayed for. Since aforesaid writ petition had otherwise become infructuous as communications impugned therein were effective only for financial year 2007-08 and the contract for the said period was already over.
5. While writ petition, i.e. OWP No. 329 of 2008 pertaining to earlier period came to be withdrawn by petitioner, but at the same time, petitioner had once again participated in the bids, invited for the year 2009-10 and emerged a successful bidder for transporting Army troops from Jammu/BD Bari to Srinagar and back. Petitioner along with his bids was also required to submit requisite temporary route permits, which petitioner, after obtaining from respondent No.3, duly submitted. But when petitioner has emerged as successful bidder, respondent No.7 is insisting upon petitioner to 5 produce renewal route permits valid for the contract period so as to enable it to finalize the contract, in which the petitioner has been found to be L-I. This is so apparent in the communication of respondent No.7 dated 13th May 2009.
6. The contract of petitioner was for the financial year 2009-10, as such, was to commence from 1st April, 2009, but even though the month of July 2009 came to an end, same has not been finalized by respondent No.7 on the plea that petitioner has not been able to produce renewal route permits. Petitioner approached respondent No.3 for issuance of requisite temporary route permits so that he could conclude the contract with respondent No.7 and transport Army troops from Jammu/BD Bari to Srinagar and back. However, respondents 2&3 declined to grant the route permits on the plea that only J&K SRTC-respondent No.5 is competent and authorized to ply its vehicles on Jammu- Srinagar National Highway in terms of SRO 358 of 1974 read with SRO 314 of 1976.
7. Faced with the situation, petitioner once again approached this Court through medium of OWP No.658 of 2009. This Court passed order in the said writ petition on 18th June 2009, which for facility of reference, is reproduced hereunder:-
Heard learned Counsel for the petitioner on this CMP.
Respondent 5 is directed to consider petitioners application for issuance of route permits and pass appropriate orders thereon as warranted under law, within a period of two weeks.
8. In pursuance of interim direction, respondent No.3 has once again passed a consideration order vide his No:1919- 23/RTOJ/09/PD dated 22nd July 2009, rejecting petitioners application dated 18th July, 2009 for grant of further 6 temporary permits. With the issuance of this consideration order, writ petition, being OWP No.658 of 2009, too rendered infructuous, which was withdrawn by petitioner with liberty to challenge consideration order. Petitioner contends that the consideration order Annexure-H is not materially different from the order, which was passed by respondent No.3 while considering the similar prayer in terms of interim order dated 28th May, 2008 in OWP No. 329 of 2008, which is already placed on record of the writ petition as Annexure-E. Respondent No.3 vide order dated 22.07.2009, according to petitioner, has reiterated its earlier position and has declined to issue temporary permits, thereby putting the contract with the Army in jeopardy, which would in turn entail serious consequences. The restriction in the movement of Army troops from Jammu to Srinagar and back would jeopardize the security interests of the Nation. It is pleaded that Respondent No.3 has very casually and without application of mind passed consideration orders. Since the consideration order dated 02.03.2009 pertains to the period, which is now over and the consideration order dated 22nd July, 2009, which pertains to the current contract period, entails serious consequences to petitioner as well as respondents 6 and 7. Petitioner, thus, seeks leave of this Court to challenge impugned order dated 22nd July, 2009 (Annexure-H), the provisions of SRO 358 of 1974 dated 23rd July 1974 and SRO 314 of 1976 dated 26th May 1976 on various grounds taken in the writ petition.
9. The orders impugned have been primarily challenged on the following grounds:-
i. That SRO 358 of 1974, relied upon by respondent no.3 to reject petitioners claim for issuance of temporary permits, is not applicable for grant or 7 refusal of temporary permits, which are regulated by the provisions of Section 87 of Act of 1988. SRO 358 of 1974 has been issued under Section 59-B of Motor Vehicles Act, 1939 (now repealed) (for short Act of 1939) and same prohibits only replacement of State carriage on Pathankot-Srinagar, Pathankot-
Jammu inter State routes and Jammu-Srinagar route under private sector. It is claimed by petitioner that he never asked for replacement of his State carriage. He has only asked for issuance of temporary permits within purview of Section 87 of Act of 1988.
ii. That SRO 314 of 1976 is ultra vires. The provisions of the Act of 1939 have been repealed by the Act of 1988. The provisions of Chapter IV-A, relating to State Transport Undertaking, have not been followed in letter and spirit rather same have been observed in breach. Impugned SRO has effect of approving and promulgating the scheme of nationalisation prepared by State Road Transport Undertaking for route Pathankot-Srinagar, which is an inter State route. The scheme, relating to inter- State route, would be deemed to have been approved Scheme only if it has been published in the official gazette with previous approval of Central Government. Since no prior approval of Central Government has been obtained by respondent no.1, as such, the Scheme approved vide impugned SRO is not duly approved scheme, and therefore, inter- State route, i.e. Pathankot-Srinagar, cannot be said to have been duly notified for the purpose of 8 creating monopoly in favour of STU (now SRTC respondent No.5);
iii. That SRO 314 of 1976 even if presumed to be legally valid, it confers only exclusive rights on respondent no.5 to operate A Class passenger transport service, thus, exclusion of private transporter is partial and not total as claimed by respondents.
iv. That impugned order of consideration, by which prayer of petitioner has been rejected by respondent no.3 is in violation of provisions of Section 87, particularly, its clauses (a) to (d). Deployment of Army in large number in Kashmir Valley is necessitated due to law and order situation that erupted in the Valley due to on slot of militancy. Normally Army deployed in the Valley is to be transported through Army vehicles, but to unprecedented deployment, Govt. of India, Ministry of Defence has allowed the Army to enter into a civil hiring contract with private transporters. It is in this background, Army engages private transporters for supply of requisite number of passenger-vehicles throughout the year as per the need projected by Army from time to time. Need to engage private passenger vehicles, is, therefore, to meet the temporary situation. Under similar set of circumstances, private transporters, engaged by J&K SRTC, presently carrying ad hoc contract with Army, have been issued temporary permits under the provisions of Section 87 of Act of 1988. Respondent No.3 cannot adopt different yardsticks for considering petitioners case for grant of 9 temporary permits that what it has adopted in case of buses of private transporters hired by SRTC. v. That Govt. Order No.34-TR of 2009 dated 28.05.2009, permits grant of temporary route permit even on nationalised routes for emergency, social, cultural and religious services. Carrying Army troops from Jammu-Srinagar and back tantamounts to provide emergency service to the Army authorities.
10. Respondents have resisted writ petition filed by the petitioner essentially on following grounds:-
(i) That Jammu-Srinagar highway is a nationalised route and J&K SRTC is the only authorised valid licence holders to ply vehicles on said route in terms of SRO 314 of 1976 dated 26.05.1976 read with SRO 358 of 1974. Section 104 of Act of 1988 imposes restrictions on issuing temporary permits on nationalised/notified routes, as such, any carriage contract on national highway in J&K can be carried out by J&K SRTC, respondent no.5 only.
(ii) That Government of J&K in terms of SRO 358 of 1974, has prohibited replacement of stage carriage on inter state routes.
(iii) That the contract of carriage of troops is a regular and routine job, as such, does not fall within the scope of Section 87 of Act of 1988. Respondent no.3 has, thus, rightly rejected petitioners claim in terms of impugned consideration order.
11. Respondent no.5 has not filed any separate reply in opposition to writ petition but has adopted the Reply filed by respondents 1 to 4 as is evident from order dated 05.02.2010.
1012. Respondents 6&7 have filed their separate reply through Sh. K.K.Pangotra, ASGI who has not opposed writ petition on merits. Respondents 6 and 7 in their reply have only insisted that they are not in a position to award the contract to petitioner despite he being lowest tenderer in absence of temporary permits issued by respondent no.3 in favour of petitioner. Respondents 6 and 7 also claims to have approached respondent no.3 to find out as to whether temporary permits in favour of petitioner has been granted. In response thereto, respondent no.3 has intimated that no such temporary permits has been granted to petitioner.
13. The issues, which primarily require consideration of this Court, can be summarized as under:-
(i) Whether the provisions of SRO 358 of 1974 dated 23.07.1974 impose any restriction for the grant of temporary permit in favour of petitioner for the vehicles to be deployed for carrying Army personnel from Jammu to Srinagar and vice versa;
(ii) Whether SRO 314 of 1976 dated 26.05.1976 is ultra vires provisions of Motor Vehicles Act, 1939 as contained in Chapter IVA of the Act and, therefore, inter State route Srinagar-Pathankot is not a notified route creating monopoly exclusively in favour of the State Transport Undertaking/SRTC to ply its passenger vehicles to the exclusion of other persons.
(iii) Whether SRO 314 of 1976 creates only monopoly of plying only A Class Passenger Transport Services on Srinagar-Pathankot route to the complete exclusion of other persons, therefore, exclusion is partial and not the total, as there is no exclusion of other classes of Passenger Transport Vehicles, which is explicit in SRO 314 of 1976;
(iv) Whether respondents 1 to 4 are legally justified to deny temporary permits to petitioner so as to enable him to carry civil hired transport contract with Army authorities by holding provisions of Section 87 of the Motor Vehicles Act, 1988, not applicable on the notified/ nationalized routes like Srinagar-Pathankot.
1114. Heard learned counsel for parties, perused the record and considered rival submissions made by learned counsel for the parties in the light of relevant Rules and the law on the subject. Accordingly, I proceed to determine the issues one by one in the following manner:-
i. Whether the provisions of SRO 358 of 1974 dated 23.07.1974 imposes any restriction for the grant of temporary permit in favour of the petitioner for the vehicles to be deployed for carrying Army personnel from Jammu to Srinagar and vice versa.
15. Learned counsel for petitioner submits that provisions of SRO 358 of 1974 dated 23.07.1974 are not attracted in the instant case nor can same be interpreted to mean imposition of any restriction for grant of permit, permanent or temporary, in favour of private transporters intending to ply their vehicles on Jammu-Srinagar National Highway and vice versa. Learned counsel for petitioner refers to the provisions of Section 59 of Act of 1939 and contends that as a general condition attached to all permits issued under the Act, permit is not transferable from one person to another except with the permission of the transport authority, which grants the permit. In terms of sub-section 2 of Section 59 of Act of 1939, the holder of permit with the permission of authority, by which permit is granted, is permitted to replace any vehicle covered by permit by another vehicle of the same nature. The attention of this Court is also drawn to Section 59-B. A perusal whereof envisages that for the State of J&K, a special provision has been made with regard to replacement of the vehicle covered by the permit by another vehicle of the same nature. Section 59-B confers upon the State Government power to issue Notification in the Government Gazette if it is of the opinion that it is necessary and expedient to do so 12 and direct the State Transport Authority or the Regional Transport Authority that no replacement of a Motor Vehicle shall be permitted within such area or on such routes or portions thereof as may be specified in the aforesaid Notification. It is in exercise of these powers conferred upon the State Government by Section 59-B that SRO 358 of 1974 has been issued and restriction imposed with regard to replacement of State Carriage on Pathankot- Srinagar, Pathankot-Jammu inter-State routes and Jammu- Srinagar route in private sector. By referring to these provisions, learned counsel for petitioner submits that petitioner is not claiming any replacement of his vehicle covered by permit for plying vehicle on the aforesaid routes by another vehicle of the same nature.
16. On the other hand, learned counsel appearing for respondent No.5 submits that in view of provisions of SRO 358 of 1974, no permit, temporary or permanent, can be granted under the routes specified in aforesaid SRO. Learned counsel, however, could not elaborate as to how provisions of SRO 358 of 1974 are attracted in the matter, particularly when same clearly deal with replacement of vehicle covered by permit by another vehicle of the same nature.
17. I have given thoughtful consideration to the rival arguments and am of the considered opinion that conjoint reading of Sections 59 and 59-B of Act of 1939 make it crystal clear that the provisions deal with replacement of vehicle covered by permit validly issued for a particular route by another vehicle of the same nature and did not deal with grant of permits whether temporary or permanent. Respondents have, therefore, wrongly relied upon the 13 provisions of SRO 358 of 1974 which is issued in exercise of powers by the State Government conferred upon it by Section 59-B of Act of 1939. Accordingly, this issue is decided.
ii. Whether SRO 314 of 1976 dated 26.05.1976 is ultra vires provisions of Motor Vehicles Act, 1939 as contained in Chapter IVA of the Act and therefore inter state route Srinagar-Pathankot is not a notified route creating monopoly exclusively in favour of the State Transport Undertaking/SRTC to ply its passenger vehicles to the exclusion of other persons.
18. Issue No.2 is of vital importance and therefore, needs indepth consideration by this Court. Although the State, which has filed objections, was expected to defend the provisions of SRO 314 of 1976, yet requisite assistance from the State did not come forth. However, learned counsel appearing for respondent No.5, who claims to be beneficiary of SRO 314 of 1976, has resisted the writ petition and has justified validity of aforesaid SRO.
19. Challenging the vires of SRO 314 of 1976, learned counsel for petitioner contends that SRO 314 of 1976 impugned in writ petition, has been issued by Government in terms of provisions contained in Chapter IVA, which was inserted in Motor Vehicles Act, 1939 by the Act of 100 of 1956 w.e.f. 15.02.1957.
20. Mr. Shukla, learned counsel for petitioner has taken this Court to the whole Scheme of aforesaid Act, which was primarily enacted for the purpose of creating monopoly of transport service in favour of the State Transport Undertaking of specific routes. Section 68-C provides for preparation and publication of scheme of the Road Transport Service of a State Transport Undertaking.
14Learned counsel for petitioner contends that as per provisions of Section 68-C, State Transport Undertaking, which may include State Transport Corporation, if is of the 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 transport services in general or any particular class of such service, in relation to any area or route or portion thereof, should be run and operated by the State Transport Undertaking/SRTC whether to the exclusion, complete or partial, of other person or otherwise, the STU may prepare a scheme giving particulars of the nature of services proposed to cover and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the official gazette and also in such other manner as the State Government may direct.
21. In terms of Section 68-D of Act of 1939, affected/ aggrieved persons are entitled to file objection within thirty days from the date of its publication of scheme. The State Government, after considering objections and after giving an opportunity to the objector as well as State Transport Undertaking, may approve or modify the scheme. My attention, in particular, has been invited to proviso to Sub Section 3 of Section 68-D of Act of 1939, which categorically provides that no such scheme, that relates to inter-State routes, would be deemed to be an approved scheme unless it has been published in official gazette with previous approval of Central Government. By referring to aforesaid provisions, learned counsel for petitioner contends that admittedly scheme approved vide SRO 314 of 1976 pertains to inter-State route, i.e. Srinagar- Pathankote, as such, same cannot be deemed to be an 15 approved scheme in terms of Section 68-D of Act of 1939, unless previous approval of Central Government is obtained. Learned counsel, therefore, contends that State Government, undoubtedly is competent to approve the scheme for nationalization of transport service on a route within its territory if it complies with other necessary formalities prescribed by the law. He, however, submits that if the scheme pertains to nationalization of inter-State route then approval by Central Government is sine quo non before the scheme could be called as an approved scheme, capable of being implemented by State Government. My attention has also been drawn to the scheme prepared by State Transport Undertaking which has been placed on record by the counsel for the State in terms of order of this Court dated 13.08.2010. Learned counsel, therefore, further contends that as per the scheme placed on record by the State, it is abundantly clear that erstwhile Government Transport Undertaking prepared two schemes, one pertaining to route Jammu-Pathankote and other pertaining to Srinagar-Pathankote routes scheme prepared by erstwhile GTU, which was approved and modified by the Government as well. The scheme itself stipulates that the route is inter-State route and therefore, the scheme has been prepared to help solve problems arising out of an inter-State character of the route by providing a single agency in the public sector. These are reasons that erstwhile GTU in support of formal scheme have notified the routes Srinagar-Pathankot in terms of SRO 314 of 1976. Learned counsel for petitioner contends that Government approved the scheme for operating only A-Class Transport Service on Srinagar-Pathankote route to the complete exclusion of other persons. The scheme for 16 nationalization of routes, Jammu-Pathankote was, however, not approved. It is contended by Mr. Shukla that as per the record produced by the State pertaining to formulation of scheme of erstwhile GTU and its approval by the Government, it is further cleared that no approval by the State Government was obtained from Central Government. Learned counsel for petitioner in support of his submission has relied upon the judgment of Honble Supreme Court reported in AIR 1974 SC 669, Ch. Khazan Singh v. State of U.P.
22. Drawing support from aforesaid judgment, learned counsel for petitioner submits that approval of Central Government is sine quo non for notifying inter-State route under Chapter IVA, particularly, when the scheme envisages nationalization of transport service not only for that part of the inter-State route, which is within territorial limits of the State Government, but also for remaining part of the route, which is outside States territorial limits as held by the Honble Supreme Court. Further contends, that inter-State route would normally cover entire route and not merely a portion of the route, which is within territorial limit of the State Government which accords approval.
23. Learned counsel for petitioner, therefore, further submits that proviso clearly contemplates that the State Government can, in accordance with the procedure laid down in chapter IVA of the Act, approve a scheme relating to inter-State routes and publish the same. There is, however, limitation on the power of State Government in this respect, i.e. it should before publishing the scheme, obtain prior approval of Central Government. It is, thus, contended that since previous approval of Central Government was admittedly not obtained in respect of the 17 route in question, as such, scheme approved by the Government cannot be said to be legally approved scheme, and therefore, SRO 314 of 1976 dated 26.05.1976 is ultra vires the provisions of Motor Vehicle Act, 1939, the same, for that reason, is liable to be declared null and void and inoperative.
24. On the other hand, learned counsel for respondents submits that SRO 314 of 1976 is in consonance with the provisions of Chapter IVA of Act of 1939.
25. State counsel as well as counsel for respondent no.5, Shri R.Koul, could not show from the record that the approval of Central Government was obtained before publishing the scheme in Government Gazette rather there is admission on part of learned counsel for State that there was no approval from Central Government available in the file. Learned counsel for respondents also could not dispute inter-State character of the route notified by the Government, vide SRO 314 of 1976. Learned counsel for respondent no.5, Shri R.Koul, however, contends that inter- State route notified by impugned SRO also covers area from Jammu to Srinagar which admittedly falls within the territorial jurisdiction of the State of J&K and, as such, that portion of the route can be said to have been properly approved and notified by the Government. In support of his submission, Sh. R.Koul, has relied upon the judgment of Honble Supreme Court reported in AIR 1977 SC 1170 titled K.Venkamma v Govt. of A.P.
26. Drawing support from aforesaid judgment, Mr. Koul, contends that even if it is assumed that in absence of approval from Central Government, route in question, which is inter-State route, cannot be said to be an approved route, yet portion of the route which falls within 18 the State can be said to be an approved route and validly notified under the provisions of Chapter IVA of the Act. Mr. Koul, while relying upon judgment of Honble Supreme Court reported in 1977 SC 441. S.S.M.T. Co-op. Socy. V. State of M.P., contends that the scheme once framed can only be objected to on the ground of efficiency, adequacy, economy and properly coordinated road transport services and on no other grounds.
27. I have considered the rival contentions of both the parties and given my thoughtful consideration thereto. It is beyond pale of doubt that route in question, i.e. Pathankote- Srinagar, which is notified in terms of SRO 314 of 1976 is an inter-State route. This is so apparent from the perusal of the scheme placed on record by the State, which itself gives reason for notifying the route in question under chapter IVA of the Act. One of the reasons indicated in the scheme in paragraph 14(2) is that nationalization is required to help solve problems arising out of an inter-State character of the route if the services are operated by a single agency in the public sector. For facility of reference, paragraph 14(2) of the scheme is reproduced as under :-
2. Pathankot Railway Station continues to be deboarding place for the travelling public coming to the State from routes and areas not directly connected by Jammu Railway Station. Accordingly, a good number of tourists and pilgrims visiting to valley from such areas have necessarily to travel on Pkt-Srinagar route. It will be in the public interest not to leave these tourists to the care of private operators who are primarily governed by profit motive. This undertaking is in a better position than the private operators to provide a standardised sophisticated and efficient tourist class passenger service on this route. The route falls in two States J&K and Punjab. It will help solve problems arising out of an inter-state character of the route if the services are operated by a single agency in the public sector. 19
28. Otherwise also, learned counsel appearing for respondents, have not disputed inter-State character of the route. As held by the Honble Supreme Court in Ch. Khazan Singhs case (AIR 1974 SC 669), route is inter- State, where termini falls in different State, meaning thereby one termini of the route is in one State, and other termini in another State route would be characterised as inter-State route. Admittedly, route, Pathankote-Srinagar, has two termini one falling in State of J&K, i.e. Srinagar, second falling in State of Punjab i.e. Pathankot. However, I find force in contention of Mr. Koul that portion of route, which falls within the State of J&K can still be held to be validly approved route and therefore, SRO 314 of 1976 is perfectly valid and in consonance with the provisions of Chapter IVA. Although, in terms of Section 314 of 1976, whole inter-State route i.e. Pathankot to Srinagar has been notified as nationalized route, yet by applying the doctrine of reading down, it is held that portion of route notified vide SRO impugned, falling within the State of J&K alone shall be held to be an approved route validly notified by the Government in terms of Chapter IVA of the Act. Needless to say, that there is presumption in the constitutionality and validity of the statutory enactment and it is always endeavour of the Court to save statutory enactment being declared ultra vires, if necessary, by reading down the provisions and bringing impugned statutory enactment in conformity with law. I also find support from the judgment of Honble Supreme Court reported in AIR 1977 SC 1170 in which Honble Supreme Court has held as under :-
8. We are inclined to the view that the route, passing, as it does through part of Tamil Nadu, is inter-state' What is the effect of this finding over the scheme of nationalisation? Wholly invalidatory ? or else, what ?20
The proviso to Section 68D(3) i.e. Central Government approval has not been complied with and so qua interstate route the nationalisation does not become effective. Even so, two factors can together salvage this nationalisation scheme.
9. There can be no doubt that the scheme notified by one State will, even in the case of an inter-state route, oper- ate to the extent it lies within that State. Its extraterritorial effect depends on securing of prior Central approval under the proviso to Section 68D(3). That being absent, the permit granted in one State may still be valid in another State if the condition specified in the 2nd proviso to Section 63(1) is fulfilled, We may as well ex- tract Section 63 (1 ) to that extent relevant. "63. Validation of permits for use outside region in which granted--(1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been counter-signed by the Regional Transport Authority of that other region and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned:
x x x Provided further that where both the starting point and the terminal point of a route are situate within the same State, but part of such route lies in any other State and the length of such part does not exceed six- teen kilometres, the permit shall be valid in other State in respect of that part of the route which is in that other State notwith- standing that such permit has not been coun- ter-signed by the State Transport Authority or the Regional Transport Authority of that other State." The portion of the route falling outside Andhra Pradesh (both termini being within that State) is admittedly less than 16 kin. and so no question of counter-signature by the State Transport Authority or the Regional Transport Authori- ty of Tamil Nadu State arises. The conclusion follows that the portions of the inter-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 Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport buses could ply on that strip also in view of the 2nd proviso to Section 63 (1) of the M.V. Act. 21 iii. Whether SRO 314 of 1976 creates only monopoly of plying only A Class Passenger Transport Services on Srinagar-Pathankot route to the complete exclusion of other persons, therefore, exclusion is partial and not the total, as there is no exclusion of other classes of Passenger Transport Vehicles, which is explicit in SRO 314 of 1976;
29. Learned counsel appearing for petitioner submits that even if it is assumed that provisions of SRO 314 of 1976 are valid and in consonance with Chapter IVA of the Act, yet SRO creates monopoly for plying only A-Class passenger transport service that too on Srinagar-Pathankot route to the complete exclusion of other persons. Exclusion, contends Mr. Shukla, is therefore, partial and not total, but is excluded by the scheme approved by the Government and vide Notification SRO 314 of 1976 is only with respect to A-Class Passenger transport service and not for other ordinarily class passenger transport services. Counsel for the petitioner, therefore, contends that so far as petitioner is concerned, he only intends to operate ordinary class of passenger buses, which are not excluded by the scheme approved by Government and Notification of SRO 314 of 1976. He has also invited attention of this Court to the scheme prepared by erstwhile GTO, which clearly envisages exclusion of all types of passenger vehicles without indicating any particular class of vehicle and exclusion proposed in the scheme was total. However, by approving the scheme, modifying the same by specifically providing that there was complete exclusion of other persons only with respect to A-Class passenger transport service and not other types of vehicle i.e. ordinarily passenger vehicles, which are normally engaged by the 22 Army for transporting its personnel from Jammu to Srinagar and vice versa.
30. On the other hand, learned counsel appearing for respondent states that going by the scheme framed by erstwhile GTU, the exclusion was total, though the Government desired that only A-Class passenger transport service would be operated on Srinagar-Pathankot route to cater to safety and comfort of tourists. I am not impressed with the arguments of learned counsel for respondent no.5 Mr. Koul. Rather, I am inclined to accept the submissions made by petitioner that bare reading of SRO 314 of 1976 in the context of scheme framed by erstwhile GTU, reveals that exclusion is only to the extent of A-class passenger transport service and not with respect to other type or class of vehicles. Despite promulgation of SRO 314 of 1976, other type of vehicles can still validly ply on the route in question, of course, after obtaining proper permission from the competent authority.
iv. Whether respondents 1 to 4 are legally justified to deny temporary permits to the petitioner so as to enable him to carry civil hired transport contract with Army authorities by holding provisions of Section 87 of the Motor Vehicles Act, 1988 not applicable on the notified/nationalized routes like Srinagar- Pathankot.
31. It is contended on behalf of respondents that respondents are justified in denying temporary permit to petitioner so as to enable him to carry civil hired transport contract with Army authorities, as contingencies provided under Section 87 of Act of 1988 are not made out. Section 87, contends Mr. Koul appearing for respondent no.5, can be invoked only for conveyance of passengers on special occasion, 23 such as to and from fairs and religious gatherings, (b) for the purpose of a seasonal business, or (c) to meet a particular temporary need. Mr. Koul contends that need of transporting Army personnel from Jammu to Srinagar and vice versa is perennial and not temporary one, which would entitle petitioner to invoke the provisions of Section 87 of Act of 1988 for claiming temporary permit.
32. On the other hand, learned counsel for petitioner contends that argument advanced by Mr. Koul is self defeated for the reasons that SRTC, after entering into a contract with Army for transportation of its persons from Jammu to Srinagar and vice versa, has been subletting the contract to private transporters, who are plying their passengers vehicles after obtaining temporary permit from the Regional Transport Authority concerned on the request of SRTC. Relying upon the judgment of Honble Apex Court reported in 1987 (1) SCC, Mr. Shukla contends that such arrangement made by SRTC, whereby they have sublet the contract to a private party who are plying their vehicles after obtaining temporary permit from the regional transport authority, is not permissible under law. It is, therefore, contended that it is not permissible under the Act for the SRTC to obtain permits under Chapter IVA of Act of 1939 and allow private operators as its nominee to operate under that permit his motor vehicle on the notified routes. Mr. Shukla has invited attention of this Court to a communication of Transport Commissioner, J&K, Srinagar, issued vide No. TC/JK/MV/2009/75/6939-41 dated 12.10.2009, whereby RTO, Jammu, has been directed to issue temporary permit under Section 87 of Act of 1988 in respect of buses hired by J&K SRTC for carriage of Army troops from Jammu to Srinagar and back. Mr. Shukla also 24 placed on record few temporary permits granted to transport the vehicles for carrying Army troops. The communication aforementioned and permits issued by RTO, Jammu, in favour of Vehicle JK02-7627 are available on the record of this file along with CMA No.1464/2009. Mr. Shukla, therefore, contends that it does not lie in the mouth of SRTC and others to contend that temporary permit in terms of Section 87 of Act of 1988 cannot be granted for carrying Army troops for the reasons that it is SRTC itself which has requested RTO concerned to issue temporary permits in favour of private vehicles hired by it for carrying Army troops from Jammu to Srinagar and back.
33. I have considered the rival contentions and given thoughtful consideration thereto. I am of the considered opinion that the stand taken by learned counsel for respondents is not only contrary to the specific provision of Section 87 of Act of 1988, but are self defeating. Regional Transport Authority has itself granted temporary permit to private vehicles and private transporters hired by SRTC for carrying out contract of carrying Army troops from Jammu to Srinagar and back. I am, therefore, of the opinion that need for carrying trucks from Jammu to Srinagar, is temporary need to meet particular situation obtaining in the Valley coupled with non-availability of sufficient number of vehicles with Army to carry its troops. Regional Transport Authority has rightly understood provisions of Section 87 of Act of 1988 and has consciously granted temporary permit to private vehicles hired by SRTC for carrying Army troops from Jammu to Srinagar and back. The contention of learned counsel for respondents, is, therefore, devoid of any merit and is rejected accordingly.
2534. This Court, however, would not comment upon arrangement made by SRTC with private transporters for carrying out its contractual obligation of carrying troops from Jammu to Srinagar and back for the reasons, same is not required for disposal of instant writ petition.
35. In view of the aforesaid discussions and the findings returned on each issue framed for determination, this writ petition is disposed of by holding that in terms of SRO 314 of 1976, the scheme prepared by the Government Transport Undertaking would be deemed to have been approved for operating A Class passenger transport service only on the portion of the Srinagar-Pathankot road falling within the State of J&K to the exclusion of all other persons. The scheme would, however, not operate for any other class or classes of passenger transport service, which are not excluded from operation on the route approved by the Government and notified vide SRO 314 of 1976. The petitioner is, therefore, held entitled to temporary permit in terms of Section 87 of the Act of 1988, for its passenger transport vehicle, excluding A Class passenger transport service for the route, Jammu to Srinagar and back, for enabling it to carry out contractual obligation, if any, entered into between the petitioner and Army authorities for carrying Army troops or for some emergency or temporary need envisaged under Section 87 of the Motor Vehicles Act, 1988.
36. Disposed of as above along with connected CMA(s). (Tashi Rabstan) Judge Jammu 28.01.2014 MadanPS 26 This judgement is announced by me today in terms of Rule 138(3) of the J&K High Court Rules, 1999.
(Bansi Lal Bhat ) Judge Jammu 28/01/2014