Allahabad High Court
Ved Pal Singh And Others vs State Transport Appellate Tribunal, ... on 4 March, 1998
Equivalent citations: 1998(3)AWC1644
Author: D.K. Seth
Bench: M. Katju, D.K. Seth
JUDGMENT D.K. Seth, J.
1. In the present case, it is alleged that the petitioners were granted permits in the route Saharanpur-Shamli pursuant to the resolution dated 36.8.1997. The petitioners who are holding those permits (13 in number) allege that the said route was notified in favour of U. P. State Road Transport Corporation, being the State Transport Undertaking (hereinafter referred to" as U.P.S.R.T.C. and S.T.U. respectively). Therefore, the temporary permits were issued within the scope and ambit of Section 104 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). By an order dated 21.11.1997, all those permits were cancelled. A copy of the said order is Annexure-4 to the writ petition. In the said order, it was pointed out that the permits (13 in number) which were granted in terms of Section 104 of the Act were being cancelled on the ground that U.P.S.R.T.C. had obtained thirty permits on the said route for 120 single trips since the permits were granted subject to the conditions that it would continue till the permits are obtained by the State Transport Undertaking. Against the said order, the petitioners have preferred Revision No. 1/1998 and 5 of 1998 before the State Transport Appellate Tribunal, U. P., Lucknow (hereinafter referred to as S.T.A.T.), in which the order dated 21.11.1997 has been stayed. Now the petitioners by means of this writ petition, in this background, have prayed for following reliefs :
"(a) to issue a writ, order or direction in the nature of mandamus commanding the respondents to strictly comply with the directions of the Appellate Tribunal dated 7.1.1998 and 19.1.1998.
(b) to issue a writ, order or direction in the nature of mandamus commanding the Passenger Tax Officer. Saharanpur to accept the Passenger tax in respect of the Vehicles of the petitioners for operating on the route.
(c) to issue any such other and further suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.
(d) and to award costs of the petition in favour of the petitioners."
2. We have heard Sri C. P. Ghlldyal, learned counsel for the petitioners at some length. It appears, that the writ petition has been moved on behalf of 12 persons holding 13 permits, whereas Revision No. 1 of 1998 was filed by one Sri Vedpal Singh, the petitioner No. 1 and the Revision No. 5 of 1998 was filed by one Sri Subhash Sharma and Smt. Shashl Lata Sharma. Sri Subhash Sharma is not a party to the writ petition. Smt. Shashl Lata Sharma is petitioner No. 12, in this writ petition. Copies of the permits are neither annexed with the writ petition nor were produced in the Court, though inquired by the Court from Sri C. P. Ghlldyal.
3. A perusal of the order, contained in Annexure-4 to the writ petition, indicates that within the scope and ambit of Section 104 of the Motor Vehicles Act, the said temporary permits which contained conditions to the effect that it would cease as soon as permit is obtained by the S.T.U. Originally, 58 temporary permits, were granted on 16.8.1997. The said permits had expired on 30.9.1997. Thereafter only 13 permits have been issued, out of the said 58 temporary permits. The route concerned is part of the notified route, wherein 120 single trips were permitted. (This fact is not disputed by Sri C. P. Ghlldyal and is also so admitted in the writ petition itself). The S.T.U. having obtained 30 permits for 120 single trips on-the concerned route Saharanpur-Shamli, being part of the notified route Saharanpur-Delhi had requested cessation of temporary permits. In the circumstances, the said 13 temporary permits were cancelled.
4. It is against this order the present writ petition has been filed. It is alleged that the petitioners have filed revislonal application before the S.T.A.T., Lucknow. However, from Annexures-7 and '8' to the writ petition, it appears that the said revisions were filed only by the petitioner No. 1 and petitioners No. 12. No material is available before this Court as to whether other petitioners have preferred any revision or not. The certified copy of the order passed in Revision No. 5 of 1998 though indicates that one Sri Subhash Sharma and Smt. Shashllata Sharma, were the revisionists, but it does not indicate that any one else was included as revisionist, particularly, when "Regional Transport Authority, Dehradun and another" was mentioned as respondents in the said order. Similarly in the xerox copy of the certified copy of the order passed in Revision No. 1 of 1998, the name of Sri Vedpal Singh alone is shown as the revisionists, while the "Chairman and others" have been shown as the opposite parties. The certified copy of the order has taken care of mentioning "another" or "other" in respect of opposite parties. In absence of mention of the word "another" or "other" after the name of revisionists. It presupposes that it was the revisionist or revisionists named in the said respective two orders who are the only revisionists. Unless other petitioners are parties to any one or other revision, they cannot claim locus standi to claim the reliefs mentioned in clauses (a) and (b) of the writ petition. Unless the petitioner Nos. 2 to 11 had filed revision and challenged the order and the same is stayed by the S.T.A.T., they cannot maintain the writ petition. Therefore, the writ petition is liable to be dismissed so far as petitioner Nos. 2 to 11 are concerned. However, in absence of any particular materials, we do not propose to go into the said questions, particularly in view of the statement made in para 19 of the writ petition, wherein it has been said that the petitioners had challenged the order dated 21.11.1997 by means of Revision No. 1 of 1998 and other connected revisions and para 22 claiming that each of the petitioners had- preferred revision and obtained interim order, copies whereof were annexed as Annexures-'7' and '8' to the writ petition respectively, (though vaguely).
5. By orders dated 7.1.1998 and 19.1.1998, the S.T.A.T. had stayed the operation of resolution dated 21.11.1997 till U.P.S.R.T.C. starts full service on the route. These orders have been sought to be Implemented through this writ petition. Sri C. P. Ghlldyal contended that since the order dated 16.8.1997 resolving to grant permit stipulated that such permits should be granted till the U.P.S.R.T.C. starts full service in accordance with the Scheme, therefore, temporary permits granted to the petitioners shall remain valid till U.P.S.R.T.C., starts full service and. therefore, this writ petition should be allowed. Since the said two orders dated 7.1.1998 and 19.1.1998 are not under challenge before this Court, we do not express any opinion or view in respect to the said orders.
6. In the present facts and circumstances of the case, two questions arise. Firstly, whether this Court in exercise of writ Jurisdiction would Implement the said orders passed by the S.T.A.T. or, in other words, the Jurisdiction under Article 226 of the Constitution, should be exercised as the executing agency of the S.T.A.T. Secondly, the question that was raised by Sri C. P. Ghildyal is that whether temporary permits granted despite its being limited for the period, can be allowed to continue even beyond the period limited in the permit till U.P.S.R.T.C. starts full service in view of Section 104 of the Act.
7. Sri C. P. Ghildyal further contended that a permit granted in terms of Section 104 is to continue till the State Transport Undertaking starts full service, and the limitation of 4 months provided in Section 87 would not be applicable to permits granted under Section 104 because of its having overriding effect as provided in Section 98 of the Act.
8. One Kaloo Ram had filed Revision No. 5 of 1996. The said revision was decided by an order dated 21st May, 1996. A copy of the said order is Annexure-2 to the writ petition. It appears that the order dated 21.5.1996, Annexure-2 to the writ petition by the S.T.AT. was challenged before this Court in Writ Petition No. 861 (M/B) of 1997 by the State Transport Authority, Lucknow. However, the writ petitioners appear to have avoided making any statement with regard thereto. From Annexure-3 to the writ petition, it appears that Sri Vedpal Singh and others, had challenged the said order of this Court through Special Leave Petition Nos. 8644 and 8645 of 1997. A copy of the order dated 1.12.1997 passed in the said special leave petition is Annexure-3 to the writ petition, which finds mention in para 16 of the writ petition. It is not understood as to why the petitioners have avoided to disclose the fact of moving the High Court by S.T.A.T. challenging the order dated 21.5.1996 passed by S.T.A.T. and the particulars of the judgment or order passed in the said Writ Petition No. 861 of 1997. The fact that the writ petition was preferred by the State Transport Authority and that the special leave petition was moved by Sri Vedpal Slngh and another, clearly indicates that the order dated 21.5.1996 passed by the Tribunal must have been reversed. Otherwise, there was no scope for preferring the special leave petition. It appears from Annexure-3 to the writ petition that the said special leave petition was dismissed with an observation that "We do not see any reason to interfere with the impugned order." The Impugned order is mentioned Annexure-3 to the writ petition as the order dated 10.3.1997 passed in Writ Petition No. 861 of 1997 and the order dated 21.6.1997 passed in the same writ petition. The orders dated 10.3.1997 and 21.6-1997, are not before us. Nothing had been disclosed about the said order in the writ petition nor any order is shown to us, and it seems that the said orders are interim orders and the final order. This appears to us as suppression of material facts.
9. Be that as it may, in absence of the said order, we are unable to enlighten ourselves as to the question decided therein. The prayer for Implementation of the interim order passed by the Tribunal would arise only if the petitioners hold valid temporary permits. The question involved in the said writ petition and special leave petition was as to whether it was justified to incorporate the conditions to the extent that temporary permit would be valid for four months or till the presentation of application for grant of stage carriage permit by U.P.S.R.T.C., whichever is earlier. The Tribunal had held that four months limitation mentioned in Section 87 cannot be incorporated in the temporary permit granted under Section 104 of the Act. Now in absence of any material with regard to the decision in the said Writ Petition No. 861 of 1997. It seems to us that we may proceed to decide the issue as contended by Sri C. P. Ghlldyal.
10. in order to appreciate the position, it is necessary to refer to the relevant provisions of the said Act- The permanent permits are granted under Section 80 of the Act, for which application containing particulars mentioned in Section 70 of the Act is required to be made for grant of stage carriage permit under Section 72. Apart from such permits, temporary permits can be granted under Section 87 provided the conditions laid down in clauses (a) to (d) of subsection (1) thereof are satisfied. Section 87 specifically provides that temporary permits can be effective for a limited period, which "shall not in any case exceed four months......". Section 87 thus "authorised use of transport vehicle temporarily" for the period prescribed therein. This provision for grant of permit is contained in Chapter "V1 of the Act which are of general application. Chapter VI curves out an exception providing a special provision relating to State Transport Undertaking. This special provisions have been given overriding effect notwithstanding anything inconsistent contained in Chapter V. While making special provision for State Transport Undertaking, it also keeps some scope open for general application in respect of persons other than State Transport Undertaking in Section 104 of the Act. The special provision are intended for S.T.U. and not for any other. The special provision relating to the State Transport Undertaking has been given overriding effect, which cannot be challenged on the ground of equality clause, as enshrined under Article 14 of the Constitution. Section 104 of the Act prohibits grant of permit in respect of notified area or notified route except in accordance with the provisions of the Scheme. In the proviso to Section 104, relaxation and exception in the matter of grant of permit, even outside the provision of the scheme, is permitted in certain circumstances. This proviso is an exception to the overriding effect provided in Section 98 of the Act inasmuch as despite such scheme, temporary permit can be granted beyond the provision of the scheme, i.e., to persons other than the S.T.U., when State Transport Undertaking does not make any application for permit in respect of such notified area or route. In pursuance of the approved scheme. By the said proviso, the S.T.A or R.T.A has been empowered to grant temporary permit to any person in respect of such notified area or notified route subject to the conditions that such permit shall "cease to be effective on the issue of permit to the State Transport Undertaking in respect of the area or route. "
11. 'Permit' has been defined in Section 2(31) of the Act to mean a "permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of motor vehicle as a transport vehicle." The authorities to grant permit have been prescribed in Chapter V. Chapter V deals with the control of transport vehicles which requires necessity of permit and provides for 'transport authority' and making of application for grant, renewal and cancellation of permits as well as grant of . temporary permits including framing of the rules for the purposes of the said Chapter. The entire control of vehicles is provided in Chapter V which deals with grant of permit. Section 87 provides for the grant of temporary permits without following the procedure laid down in Section 80. A plain reading of this Chapter shows that in order to obtain permit, procedure has been laid down in Section 80 of the Act. Section 70 provides for contents of the application. Section 72 provides for procedure of making application for stage carriage permit. Section 80 deals with the manner how the permit is granted. Under Section 87(1). "A Regional Transport Authority and the State Transport Authority may without following the procedure laid down in Section 80, grant permits to be effective for a limited period which shall, not in any case exceed four months to authorise the use of transport vehicle temporarily :
(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings,
(b) for the purposes of seasonal business, or
(c) to meet a particular temporary need, or
(d) decision on an application for the renewal of a permit, and may attach to any such permit such condition as it may think fit."
12. Section 104 of the Act provides that, "where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the Scheme ;
Provided that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of the area or route."
13. Thus, we see that Section 104 is a special provision prohibiting grant of permit which is otherwise available to any person in terms of Chapter V, with the relaxation that in case no such permit is obtained by the State Transport Undertaking under the Scheme, then the State Transport Authority or the Regional Transport Authority may grant temporary permit to any person in respect of such area or route, covered under the Scheme with the condition that it would cease to be effective on the issue of permit to the State Transport Undertaking. Therefore, relaxation for grant of temporary permit to any person despite the existence of scheme is not an exception, which is inconsistent with Chapter V. On the other hand, Section 104 of the Act, is saved by reason of Section 98 of the Act, providing overriding effect of Chapter VI, despite its being inconsistent with Chapter V. As soon relaxation with regard to the restriction provided under Section 104 is provided for the purposes of grant of temporary permits, it becomes consistent with Chapter V. Therefore, the aid of Section 98 cannot be availed in respect of relaxation and exception that has been carved out of Section 104 of the Act.
14. Then again the proviso to Section 104 is only permissive which permits grant of temporary permit despite special provision prohibiting grant of such permit on the condition mentioned in the proviso itself through which inconsistency is ignored for the period mentioned therein. Chapter V is the only provision under which permits are granted. Still Chapter VI makes out an exception with regard to the application of Chapter V in respect of State Transport Undertaking. If the Scheme is framed and approved under Chapter VI. The proviso is the only enabling provision and it is not authorising provision. Section 87 is the authorising provision under which temporary permit can be granted. Section 104 does not lay down any procedure for the grant of permit nor does it provide for authorisation of grant of permit. It is only a relaxation and exception on the restriction for grant of permit within the approved Scheme. Under Section 103, the S.T.U. Is also required to apply for permits in the manner prescribed by the State Government. Such permits are also to be applied for by the State Transport Undertaking under Chapter V with the added power to curb the right of other persons to obtain permit under Chapter V to the extent as provided in sub-section (2) of Section 103 of the Act.
15. Admittedly, when the scheme is approved and no permit is obtained by the State Transport Undertaking, there remained a temporary need within the meaning of Section 87(1)(c) of the Act. Therefore, temporary permit can be issued under Section 87 of the Act even in respect of notified area or route covered under the Scheme. Section 104 does not provide for any procedure for grant of temporary permit. Since the temporary permit can only be granted under Section 87, such permits are subject to the restrictions or conditions mentioned in Section 87 of the Act. Section 87 specifically provides that S.T.A. or the R.T.A. while granting temporary permit may attach such conditions, as it may think fit. Section 104, on the other hand, provides that the permits granted within relaxation or exception provided in the proviso to Section 104 shall be subject to the conditions that it would cease to be effective on the issue of permit to S.T.U. Since Section 87 empowers the S.T.A- or the R.T.A. to grant temporary permit to be effective for a limited period not exceeding four months, there cannot be any scope for granting permit exceeding the period of four months even when such permits are granted to meet temporary need in respect of any notified area or route under the approved Scheme in terms of Section 104, The outer-limit can never exceed four months when permit is granted under Section 87, within the scope of the proviso to Section 104, but however, such permit shall cease to be effective as soon as permits are obtained by the S.T.U. on such route though the period of temporary permit may not have expired. Therefore, on the expiry of such permit, a person may obtain fresh temporary permit subject to same conditions and go on repeating such obtaining of permit until S.T.U. obtains permit. Then again the Motor Vehicle Rules provide for various other conditions including payment of fees and other formalities for obtaining temporary permit which also cannot be overlooked on the basis of exception carved out by the proviso to Section 104 from the restriction Imposed by the said section.
16. Therefore, unless the petitioners are in possession of valid temporary permits, there is no scope for implementation of the orders dated 7.1.1998 and 19.1.1998. In the circumstances, it is not possible for this Court to grant relief, prayed for in clause (a) of the writ petition. If the relief under clause (a) cannot be made available to the petitioner, there is no scope for granting relief contained in clause (b) or in clauses (c) and (d) respectively.
17. Then again the S.T.A.T. Is constituted under Section 89(2) which is capable of implementing its own order under the rules framed governing the procedure before the S.T.A-T. Therefore, it ts capable of executing its own order and does not require any aid of any outside agency. When specific provision has been laid down, writ jurisdiction cannot be invoked to reduce the jurisdiction under Article 226 of the Constitution to a provision for execution of orders of an authority which is capable of executing its own order and that too subordinate to the High Court. If such situation is permitted, then this Court's jurisdiction would be used to render the authority and jurisdiction of the subordinate authorities or Court wholly ineffective and would unnecessarily take upon the burden which it would be Impermissible for it to bear for obvious reasons, namely, unnecessarily widening the scope of Article 226. When a particular procedure has been laid down for execution of the order of a particular authority, it is not open to a party to obtain aid of Article 226 of the Constitution for execution of such order without at all approaching such authority, who is competent to execute its own order.
18. That apart, the High Court should not ordinarily grant direction for execution of the order of the authority which is subordinate to the High Court, particularly when the order itself is capable of being challenged or revised by this Court as in that event. It would be putting a stamp of confirmation on the order itself. At the same time, without examining the validity or legality of the order sought to be executed, it is not possible for this Court to pass an order to execute such an order. From a very perusal of the order, we have reservation by reason of the fact that the proviso contemplates cessation of effectiveness of temporary permit granted with the issue of permit and it has not used the term actual service.
19. Be that as it may. we are not called upon to decide the said issue and pre-determine the question which is not issue in the said revision itself before the S.T.A.T.
20. For all these reasons, we are unable to agree with the contention of Sri C. P. Ghildyal. The writ petition, therefore, fails and is accordingly dismissed.
21. Before parting with the matter, we must observe that none of the observations made herein shall in any way effect or prejudice the pending revisional proceedings which should be decided on its merit in accordance with law, independent of any observations made above.
22. There will, however, be no order as to costs.