9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 24.04.2012
% W.P.(C) 719/2011
INDERJEET SINGH AND ANR ..... Petitioner
Through: Mr. Alok Bachawat, Adv.
versus
STATE OF DELHI AND ORS ..... Respondent
Through: Mr. Najmi Waziri, Adv for
respondent no.1.
Ms. Rani Chhabra, Adv. for
respondents 3 to 7.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (Oral)
1. The petitioner has preferred the present writ petition under Article 226 of the Constitution of India to seek a direction to respondents 1 and 2 i.e the Govt. of NCT of Delhi and the Delhi State Transport Authority to cancel the allotment of maxi cab permits allotted to respondents 3 to 7 for the route - Bhai Mati Dass Chowk (Fountain) to Shastri Nagar - Route Code No.9101 or any other route. The petitioner also seeks a mandamus requiring the respondent W.P.(C.) No.719/2011 Page 1 of 11 authorities to advertise the allotment of the permits of maxi cabs for public in general.
2. The petitioners state that they are maxi cab permit holders and operators. Respondents 1 and 2 issue and grant maxi cab permits. Maxi cabs are contract carriages which have capacity of more than 6 and less than 12 passengers.
3. The case of the petitioners is that in the year 1993, respondent no.1 floated a scheme for grant of permits for maxi cabs in order to provide cheap and better public transport in congested areas of Delhi. Consequently, respondent no.2 invited applications by issuing a public advertisement for allotment of these 100 permits under the scheme. The petitioners and other interested persons made their applications for allotment of these 100 permits under the scheme. Consequently, 100 permits were issued and the petitioners were amongst those to whom one permit each was allotted. According to the petitioners, respondent no.3 was made allotment of 10 permits at that stage.
4. The further case of the petitioner is that in the year 2000-2001, in terms of the directions of the Supreme Court in W.P(C) 13029/85 in the matter of M.C. Mehta Vs. UOI, respondent no.2 issued a circular directing maxi cab operators to convert their vehicles to CNG vehicles. It was also stated that if the vehicles are not so converted, the permits would not be renewed. The petitioner further states that out of 100 W.P.(C.) No.719/2011 Page 2 of 11 permits, renewal was granted only in respect of 79 permits, upon conversion to CNG mode. The remaining 21 permits were not renewed or re- allotted. It is also the petitioner's case that these 21 permits, which lapsed, remained un-allotted over the years.
5. The further case of the petitioner is that respondents 1 and 2 did not allot these 21 licensees despite applications being tendered. In fact, the respondents were not even entertaining the applications when tendered. The petitioners submit that respondents 1 and 2, clandestinely, without any prior notice to the general public, entertained the applications made by respondent nos.3 to 7 for allotment of the 21 remaining permits. Respondents 3 to 7 all belong to the same family. Respondent no.3, Sh. Charan Kamal Singh is the father of respondents 4 to 7. The said respondents made their applications and each of these respondents have been allotted 4 permits each.
6. The case of the petitioners is that the said respondents are not even eligible for these permits on their own. It is the case of the petitioners that respondent no.3, who had earlier been allotted 10 permits initially in the year 1993, had transferred/sold 9 out of the 10 permits allotted to him for consideration. In this background, the present petition has been preferred by the petitioner. W.P.(C.) No.719/2011 Page 3 of 11
7. Counter affidavits have been filed by respondents 1 and 2 on the one hand and respondents 3 to 7 on the other hand. The case of respondents 1 and 2 in their counter affidavit is that they had floated a scheme for maxi cab permits in the year 1993 for grant of about 100 permits. In September, 2002, 21 permits were left to be granted. (I may note that learned counsel for respondent nos. 1 and 2 states that there appears to be a typographical error in the counter affidavit of respondent nos. 1 and 2, which states that 79 permits were left to be granted. However, this does not appear to be the position in the light of the averments made in the writ petition, and the fact that the respondents 1 and 2 admit to have allotted 20 permits to respondents 3 to 7).
8. Respondents 1 and 2 admit that respondents 3 to 7 have been allotted 4 permits each, as against their applications for 25 permits each. The case of the respondent authorities is that the applications of respondents 3 to 7 were considered in accordance with Section 74 and related provisions of the Motor Vehicles Act. It is also stated that the letters of intent were issued to respondents 3 to 7 in October 2010, whereas the petitioners had applied for the same permits in December, 2010 . It is also stated that many other applicants had also applied for maxi cab permits, subsequent to the grant of letters of intent to respondents 3 to 7. The further case of respondents 1 and 2 is that W.P.(C.) No.719/2011 Page 4 of 11 there is no provision in Chapter V of the Motor Vehicles Act which requires publication or advertisement of vacancies for issue of permits. Respondents 3 to 7 have been allotted permits in accordance with the provisions of Motor Vehicles Act, and no provision of the Act, had been violated.
9. Respondents 1 and 2 are silent about the petitioner's case that respondent no.3 had initially been allotted 10 permits in the year 1997, out of which he traded 9 permits.
10. Respondents 3 to 7 in their counter affidavit, however, state that respondent no.3 had applied for grant of 1 permit, and only 1 permit was allotted to him in 1997. They further state that since there were about 21 permits lying un-allotted with the respondent authorities, they approached the said authorities by applying for the same.
11. Pertinently, they state in para 11 that "the respondent no.3 approached the said transport authority for grant of permit under vacancies lying unfilled but the respondent State Transport Authority never paid any heed". They further state that in July 2010, they applied for grant of permit on the vacancies lying unfilled. Their applications were received on 07.07.2010 by the respondent State Transport Authority, but were not considered. They again submitted their applications on 23.09.2010. It is further stated in para 14 that since respondent no.3 and his family members had been approaching W.P.(C.) No.719/2011 Page 5 of 11 the said transport authority repeatedly on 12.10.2010, an order was passed granting four permits each on different routes to respondents 3 to 7.
12. Having heard learned counsel for the parties and considered their submissions and the pleadings of the parties, I am inclined to allow the present writ petition.
13. It is clear from the averments of the petitioner as well as respondents 3 to 7 that even though 21 maxi cabs licensees' stood un-allotted in the year 2002, the respondents 1 and 2 did not make the allotment to the said licensees to the persons who made their applications for the said purpose for nearly 8 years. Even in the counter affidavit of respondents 1 and 2 they do not state that applications for allotment of the 21 maxi cabs permits were entertained after September, 2002 till the time 20 of these permits were allotted to respondents 3 to 7. The submission of Mr.Waziri that under the scheme of the Motor Vehicles Act , and particularly under Section 74 of the said Act, there is no requirement that the respondents should advertise and invite applications for grant of permits, and therefore, before granting the said 21 permits, the respondents authorities were not obliged to invite applications cannot be accepted.
W.P.(C.) No.719/2011 Page 6 of 11
14. Section 74 of the Motor Vehicles Act only states that on an application being made to it under Section 73, the Regional Transport Authority may grant a contract carriage permit in accordance with the application, or with such modifications as it deems fit, or refuse to grant such a permit. The aforesaid provision contained in Section 74(1) is subject to the provisions of sub section (3) which states that the Statement Government shall, if so directed by the Central Government, having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of contract carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than 5 lacs.
15. In the present case the admitted position is that the number of contract carriage permits/licenses, which the respondent authorities decided to issue under Section 74 in respect of maxi cabs was limited to 100. It is also the admitted position that when the scheme was initially floated for grant of maxi cabs permits in the year 1993, the respondent authorities invited applications by issuing a public advertisement/notice. If the submission of Mr. Waziri, that there was no obligation in law to issue an advertisement and to invite applications for issuance of permits under Section 74 of the Motor W.P.(C.) No.719/2011 Page 7 of 11 Vehicles Act, were to be accepted, there was no need to issue any such advertisement/public notice even in the year 1993. But the respondent authorities did so. The reason for such procedure being adopted is not difficult to fathom.
16. Section 74 merely states that on application being made, the Regional Transport Authority may grant or refuse to grant a contract carriage permit. It does not state whether, or not, the application would be made after public notice, or by invitation.
17. The grant of permits by the State entails distribution of largesse, when the total number of contract carriage permits, in respect of maxi cabs, has been capped to only 100. It is only by obtaining such permit that its holder gets a right to run the contract carriage of maxi cabs. The permit, when issued, gives an advantage and a financial benefit to the permit holder. Consequently, its distribution and allotment, necessarily, has to be made in a transparent manner, so that all members of public may have an equal and fair opportunity to seek the grant of the said permits. In Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh And Others (2011) 5 Supreme Court SCC 29, the Supreme Court inter alia held as follows:-
" What needs to be emphasised is that the State and /or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whim of the political entities and/or officers of the State. Every action/decision of the State and/or its W.P.(C.) No.719/2011 Page 8 of 11 agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non- discriminatory and non-arbitrary method irrespective of the class of category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouitism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State."
18. The manner in which the allotment of permits to respondent nos.3 to 7 has taken place in the present case, leaves much to be desired and raises serious doubts about the bona fides of the action of the respondent authorities. How is it that suddenly, after 8 years, the respondent authorities decided to entertain applications for grant of the maxi cabs contract carriage permits? How is it that respondent nos. 3 to 7 learnt of the decision of the respondent authorities to entertain such applications, when no prior information in this regard was publicized? These questions have not been answered by the respondent authorities in their counter affidavit. They have only taken the shelter of the language used in Section 74(1) of the Motors Vehicles Act, which is neither here nor there.
W.P.(C.) No.719/2011 Page 9 of 11
19. As notice above, even respondent nos. 3 to 7 state that the respondent authorities were not entertaining the applications for grant of maxi cabs contract permits over the years. Their case appears to be that they had repeatedly applied for these permits, inter alia, in July, 2010 and September, 2010 and it was only when they repeatedly approached the Transport Authorities, an order was passed on 12.10.2010 granting 4 permits to each of respondents. 3 to 7.
20. When the said maxi cabs contract carriage permits were in such short supply, it cannot be appreciated how the respondent authorities could have quietly, and without any prior general public notice, allotted said permits to a handful of persons by allotting 4 permits to each of them. Clearly there appears to be more to it, than meets the eye. The action of the respondent authorities in allotting the permits in question to respondent nos.3 to 7 is discriminatory, arbitrary and offends the petitioners fundamental rights guaranteed by Article 14 of the Constitution of India.
21. For the aforesaid reasons, I allow this writ petition and quash the allotment of the maxi cabs contract carriage permits granted to respondent nos. 3 to 7 by the respondent authorities. I further direct that respondent authorities shall make allotment of the 21 maxi cabs contract carriage permits, or such other permits as it decides to grant, only through the process of inviting applications from the general W.P.(C.) No.719/2011 Page 10 of 11 public by giving sufficient and adequate advance public notice to all concerned.
22. The petitioners are entitled to costs quantified at Rs.10,000/- to be paid by respondents 1 and 2 within four weeks.
VIPIN SANGHI, J APRIL 24, 2012 as/hk W.P.(C.) No.719/2011 Page 11 of 11