Patna High Court
Amar Nath Pandey vs State Of Bihar And Ors. on 13 February, 2002
Equivalent citations: 2002(2)BLJR908
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. This writ petition is directed against the order dated 19.2.1999 (Annexure 4), and the consequential order dated 28.9.2000 (Annexure 5), whereby respondent No. 4 (Sunil Kumar Sharma, being the new permit-holder) has been allotted the same timing as the petitioner (the existing permit-holder) for the route Madhubani to Vir Kuer Singh Bus Parav (Patna) via Sakri, Darbhanga, Laheriasarai, Kalyanpur, Kisahanpur Railway Station, Muktapur, Samastipur, Musarigharari, Hajipur (Express), arid the return journey.
2. The petitioner is the holder of permit to ply passenger bus for the route Kako to Vir Kuer Singh Bus Parva (Patna) via the aforesaid stations, vide permit dated 27.8.1990 (Annexure 1), issued by respondent No. 2 (Regional Transport Authority, Darbhanga), and the return journey. The petitioner's approved time-table states that the departure time for the petitioner from Kako is 4.50 a.m., and the arrival and departure time at Madhubani for Patna is 5.10 a.m. and 5.15 a.m. respectively. His departure time for the return journey from Patna to Kako is 1.25 p.m. It appears that respondent No. 4 applied for and was granted similar permit for the same route (less Kako to Madhubani covering 8 kilometres), and the provisional time-table submitted by him proposed that his departure time from Madhubani should be 5.10 a.m. and the departure time from Patna should be 1.30 p.m. The proposed time-table was circulated and objections were invited, as is manifest from Annexure 2. The petitioner submitted his objection dated 3.2.1999 (Annexure 3), wherein he objected to the departure time of respondent No. 4 from Madhubani because of being prior to that of the petitioner, which may result in closure of the petitioner's trips. The petitioner's objection was considered by respondent No. 2 who passed the impugned order dated 19.2.1999 (Annexure 4), whereby he modified the proposed time-table of respondent No. 4, who has been granted 5.15 am. as the departure time from Madhubani in place of 5.10 a.m. and 1.25 p.m. for the return journey from Patna instead of the proposed 1.30 p.m. It is obvious the petitioner's time-table has remained unaltered by the approved time-table of respondent No. 4. It appears that this order was not implemented for quite some time, and the consequential order in implementation of the same has been issued on 28.9.2000 (Annexure 5), notifying the permanent permit and time-table of respondent No. 4.
3. While assailing the validity of the impugned order, learned Counsel for the petitioner submits that respondent No. 4 has been granted the same timing as the petitioner which is fraught with grave consequences and may result in unsafe plying of buses as well as inconvenience to the public. In his submission, there must be reasonable gap of departure timing between two buses for the same route in public interest. He relies on the judgment dated 24.7.2000 (Annexure 6), of a learned Single Judge of this Court in CWJC No. 8371 of 1997 (Baldeo Choudhary and Ors.) and the analogous writ petitions. He further relies on the order dated 14.9.2001, passed by a learned Single Judge of this Court in CWJC No. 9970 of 2001 Amar Nath Singh v. State of Bihar and Ors.). He also relies on the judgment of the Kerala High Court K. Mohammad Siddique v. The Secretary Regional Transport Authority Kozhakode and Ors. which, in his submission, lays down to the effect that in matters of change of timing of stage carriage, principles of natural justice must be adhered to and personal notice to existing permit holder(s) is necessary.
4. Mr. Amar Nath Singh, learned Standing Counsel No. VIII, has taken me through the scheme of the Act with particular emphasis on the provisions relating to grant of permanent permit and allotment of timings. In his submission, the emphasis is on free trade, the applicants are largely left to their own discretion, and the statutory control is minimal under the Motor Vehicles Act, 1986 (hereinafter referred to as 'the Act1), and the Rules thereunder making a fundamental departure from the old Act. He relies on the judgment of the Supreme Court Mithilesh Garg and Ors. v. Union of India and Ors.
5. I have carefully considered the rival submissions. Section 80 of the Act is headed "Procedure in applying for and granting permits" and inter alia, lays down to the effect that an application for permit of any kind may be made at any time. Grant of permit is the rule. Only with respect to stage carriage or the contract carriage operating on city routes in towns with a population of not less than five lakhs', an application can be rejected on the ground that grant of it will have the effect of increasing the number of stage carriage of contract carriage as fixed and specified in a notification in the Official Gazette under Section 71(3)(a) or 74(3)(a) respectively of the Act. The second proviso to Sub-section 2 of Section 80 provides that application for grant of stage carriage permit can be rejected only after giving an opportunity of being heard in the matter and for the reasons to be stated in writing. Section 70 is headed "Application for stage carriage permit", and Section 70(1)(c) provides that the application shall state the minimum and maximum number of daily trips proposed to be provided and the time-table of the normal trips. Section 72 is headed "Grant of stage carriage permits", and the proviso to Section 72(1) provides that no such permit shall be granted in respect of any route or area not specified in the application. The same obviously by necessary intendment means that the choice of route or area lies with the applicant. Section 72(2) provides that the stage carriage permit shall be granted subject to any one or more of the conditions stated thereunder, Section 72(2)(xxiv) is significant and provides that the stage carriage permits may be granted attaching any other condition which may be prescribed.
6. It appears to me from the scheme of the Act that grant of stage carriage permit is now the rule and can be rejected on the extremely limited conditions provided in the Statute. No such notification fixing the number of stage carriage or contract carriage in terms of Section 71(3)(a) or 74(3)(a) respectively operating on city routes in towns with a population of less than five lakhs is on record, and in fact is not needed for the disposal of the present writ petition. An application for any kind of permit can be rejected only after affording an opportunity of being heard in the matter and the applicant has to be given in writing the reasons for the refusal of the same. The Supreme Court in its judgment of Mithilesh Garg (supra) considered the issue relating to grant of licence under the new Act and noticed the liberalised policy for grant of permits. The aforesaid judgment of the Supreme Court has been followed by a Division Bench of this Court in its judgment reported in 1995 (1) PUR Page 24 Rajeshwari Devi v. State of Bihar, a Division Bench judgment of Kerala High Court Secretary, charganacheny Taluk Road Bus Thozhlali Co-operative Society Ltd. v. Mahew Job and Ors. and the judgment of a learned Single Judge of the Rajasthan High Court Ram Kumar v. Secretary Regional Transport Authority Bekanir.
7. Law is thus clear that the right to carry on the occupation of transport operators under the Act is free trade and is in conformity with Article 19(1)(g) of the Constitution of India. It is only the State which can impose reasonable restriction within the ambit of Article 19(6) of the Constitution and can be found within the four corners of the Statute and the Rules thereunder. No individual can have threat of any kind whatsoever from any authority or individual to the enjoyment of his right to carry on the occupation of transport operators. The existing operator has for one more reason no right to object to a new operator joining the filed is that the right of the existing operator is unaffected by the entry of the new operator. In other words, liberal policy to grant permit in favour of the new operator does not deny or deprive the existing operator of a legal right. He does not sustain any injury to any legally protected interest and the objection of the existing operator to the entry of a new operator is wholly unlawful, being an attempt to prevent the entry of a new-comer which is a guaranteed fundamental right. It will bear repetition that an existing operator has no right of objection to the application of a new operator for permit.
8. The issue relating to approval of the proposed time-table submitted by a new operator has become very contentious all over the State and generally speaking gives rise to problems of two categories. The first one is, in which the time-table of the existing operator is during the course of consideration of the proposed time-table of the new operator altered to give way to that of the latter. The second category is where the proposed time-table of the new operator is altered to give way to the timetable of the existing operator. These two species of the same genus have been giving rise to a lot of litigations, some worthy of contest, the others frivolous and unworthy of contest and are agitated and pursued primarily because the operators can affored the luxury of it. Therefore, the issue relating to the right of the existing as well as the new operators to have their way relating to time-table, and the power of the Regional Transport Authority to alter one or the other, must be dealt with carefully and accurately.
9. The relevant provisions of the Statute may first of all be noticed. Section 70 of the Act is headed "Application for stage carriage permit". Section 70(1)(c) lays down to the effect that an application for a permit in respect of a stage carriage shall, inter alia, stated the minimum and maximum number of daily trips proposed to be provided and the time-table of the normal trips. Section 71 of the Act is headed "Procedure of Regional Transport Authority in considering application for stage-carriage permit", and Sub-section (2) whereof lays down to the effect that a Regional Transport Authority shall refuse to grant a stage-carriage permit if it appears from any time-table furnished that the provisions of this Act relating to the speed at which vehicle may be driven are likely to be contravened. It further provides that before such refusal an opportunity shall be given to the applicant to amend the time-table so as to conform to the said provisions. Section 112 is headed "Limits of speed" which, inter alia, lays down to the effect that no pesson shall drive a motor vehicle or cause or allow a motor vehicle to be driven in any public place a speed exceeding the maximum speed or below the minimum speed fixed for the vehicle under this Act or by or under any other law for the time being in force. It further provides that such maximum speed shall in no case exceed the maximum fixed for any motor vehicle or class or description of motor vehicle by the Central Government by notification in the Official Gazette. Section 72 of the Act is headed "Grant of stage carriage permits". Section 72(2) lays down to the effect that a stage carriage permit may be granted along with any one or more the conditions stated thereunder. Clause (iv) thereunder stipulates that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area. It is manifest from a perusal of this provision that the time-table of the new operator must be approved by the Regional Transport Authority which has the inescapable connotation of approval after application of the mind and consideration of the relevant factors, and also perhaps includes certain amount of discretion. Clause (v) thereunder provides that the stage-carriage shall be operated within such margins of deviation from the approved time-table as the Regional transport Authority may from time to time specify. The same obviously provides the requisite leeway to the operator to deviate from the approved time-table within permissible limits without incurring the displeasure of law. Clause (xxiv) thereunder is significant which lays down that any other conditions which may be prescribed can be attached to the permit. As defined in Section 2(32) of the Act, "Prescribed" means prescribed by rules made under this Act. It appears from a perusal of Section 95 of the Act that the power to make rules in this behalf has been vested with the State Government in contradistinction to the Central Government. Rule 79 of the Bihar Motor Vehicles Rules, 1992, is headed "Additional Conditions in respect of certain permits", and Rule 79(1 )(c) lays down to the effect that the service of stage carriage shall be regularly operated on the specified route in accordance with the approved time-table.
10. Law is well settled that the existing operator has a right of objection to the proposed time-table of the new operator, as has been held in the case of Rajeshwari Dew (supra), in Secretary, Changancherry Taluk Road Bus Thozhlali Co-operative Society Ltd. (supra), and in Raj Kumar (supra). It has been held by the Supreme Court that it would uphold the reasonableness of the restrictive law if the administrative authority who is empowered to affect such rights is required to act quasi-judicially and give his decision after giving an opportunity to be heard to the party to be affected, in conformity with the rules of natural justice. Reference may be made to the judgments Jyoti Pershad v. Union Territory of Delhi Fatechand Himmatlal and Fawk Mohd. v. State of M.P.
11. It thus appears to me on a conjoint reading of the relevant provisions of the Act and the Rules thereunder that there is now almost free trade with respect to the occupation of transport operators, the statutory limitation being minimal, and the right of objection of the existing operator to the application of a new operator for permit being absolutely absent, the proposed time-table of the new operator is also subject to the very limited restriction indicated hereinabove as per the law in existence today. Both the aspects of the matter are governed by the aforesaid provisions of the Act which are in conformity with the fundamental right to trade and business, guaranteed under Article 19(1)(g) of the Constitution and is subject to the reasonable restriction of a very limited nature provided in the Act and summarised hereinabove. Law is equally well-settled that reasonable restriction on fundamental rights can be imposed only by the Legislature and cannot be done by an executive ukase. Reference in this connection may be made to the judgments of the Supreme Court Mineral Development Ltd. v. State of Bihar Mangalove Ganesh Beedi Works v. Union of India and Orient Weaving Mills Ltd. v. Union of India), wherein it has been held that the discretion is not unguided or unfettered where the Legislature has laid down the policy or standard, nor can it be said to be unrestricted where the discretion is to be exercised according to conditions or upon a consideration of the matters specified in the Statute or the Rules made under the Statute, which provide adequate safeguards. It is obvious that the time-table is an adjunct to the permit and has no separate existence of its own De Hors the permit. The same spirit of liberal approach seems to inspire the scheme of the Act with regard to approval of the time-table also. The primary restriction imposed by the Statute on the approval of the time-table is that the same should not violate the prescribed speed limit. I see no other restriction insofar as the powers of the Authority to grant approval to the proposed time-table of the new entrant is concerned. Being a free trade, the existing operator and the new operator are, therefore, at liberty to fix their own time-table subject to the restriction of speed limit, and the scope of objection by the existing operator, and the power of interference with the time-table on the part of the Authority, is limited to the extent of verification of the prescribed speed limitation view of the law as it exists today.
12. Learned Counsel for the petitioner submits that this does not solve the problem of clash of interest between the time-table of different operators. In view of the provisions of Section 72(2)(iv) that the time-table of the stage carriage has to be approved by the Authority, he submits, adequate guidelines have not been provided in the Bihar Rules. The issue being governed by the provisions of Article 19(1)(g) and 19(6) of the Constitution of India, any restriction on approval of the time-table beyond the speed limit cannot be left to the discretion of the executive. The provisions of Section 72(2)(xiv) read with Section 95 of the Act vest adequate powers in the State Government to frame the rules in this behalf. Rule 79 of the Bihar Rules does not provide adequate guidelines for the right of objection, and the power to approve or otherwise a proposed time-table in relation, to that of existing operator. In that view of the matter, the petitioner submits, the State Government would be well advised to make appropriate amendments in the Bihar Rules providing adequate guidelines to the Regional Transport Authority or the statutory authorities exercising appellate or revisional powers with respect to approval or otherwise of a time-table. This being a matter relating to leistative policy, it is not given to this Court to suggest the outline of such a policy. I would, therefore, content myself by summarising hereinbelow the submissions of the learned Counsel for the parties for consideration and guidance of the rule-making authority:
(i) The public interest, safety and the security of the passengers should be the primary consideration.
(ii) In view of the experience of the existing operator, his time-table should get precedence over the proposed time-table.
(iii) In view of the heavy investment and the commercial risk involved in the transport business, time-table proposed by the new operator should be given precedence. Learned Counsel has, inter alia, relied on the Division Bench judgment of the Mysore High Court reported in 1969 Mysore 242 Para 23 M. Akbar Saheb v. Presiding Officer Mysore State Transport Appellate Tribunal.
(iv) The possibility of small operators being eliminated by big operators should be kept in view.
(v) Margin between the two services on the same route should be adequate so that, inter alia, unhealthy competition and the tendency to over take on way to hijack the waiting passengers is eliminated.
(vi) The distinction between an express and passenger service may be maintained.
(vii) In view of the spirit and legislative policy which inspires the scheme of the Act in the present context, namely, free trade, further restrictions/guidelines with regard to approval of time-table is uncalled for.
The aforesaid enumeration of the submissions should not be taken to be an expression of the views of this Court, and the rule-making authority is free to apply its independent mind and take it to its logical conclusion.
13. Insofar as the present case is concerned, the petitioner's timings have remained unaltered by the impugned order. The departure time for both the petitioner and respondent No. 4 from Madhubani to patna and vice-versa is the same. According to the scheme of the Act, this is no ground to interfere with the time-table granted to respondent No. 4. In fact, the proposed time-table of respondent No. 4 has been altered by the impugned order which may provide cause of action to him, i.e., the operator whose time-table has been altered. According to Section 71(2) of the Act, a time-table can be rejected if it has the effect of contravening the speed limit indicated in the Act. No such allegation has been made with respect to the time-table of respondent No. 4 approved by the impugned order. In the scheme of the Act, the approved time-table of the new operator cannot be set aside at the instance of the existing operator on the ground that latter has had been granted the same timings. The petitioner could have raised a grievance if his time-table had been altered during the course of consideration of the time-table of respondent No. 4. None of the petitioner's statutory rights have been been infringed.
14. I must deal with the aforesaid judgments relied upon by the learned Counsel for the petitioner. Insofar as the judgment of this Court in Baldeo Choudhary v. State of Bihar and Ors. (Annexure 6) is concerned, it is stated in paragraph 5 of the judgment that "it is, however, made clear that if need is of more buses to ply at a time, the authority may permit more than one bus to ply but only with a view to facilitate the need of public and after assessing the situation". Further more, the relevant provisions of the Act discussed hereinabove and the judgment of the Supreme Court in Mithilesh Garg (supra), were not brought to the notice of the Bench in Baldeo Choudhary (supra), & Amar Nath Singh (supra). Insofar as the judgment of the Kerala High Court in K. Mohammed Sadique (supra) is concerned, the principles of natural justice have been observed in the present case, The proposed time-table submitted by respondent No. 4 was circulated, as is manifest from Annexure 2, and the petitioner did submit his objection (Annexure 3).
15. In the result, this writ petition is dismissed. The Secretary, Department of Road Transport, Government of Bihar, is hereby directed to take due notice of the observations made in paragraph 12 hereinabove. Let a copy of this judgment be handed other to Mr. Amar Nath Singh, learned Standing Counsel No. VIII, for the needful.