Allahabad High Court
Shanti Dham School Karwi Road & ... vs State Of U.P. & Others on 10 December, 2013
Bench: V.K. Shukla, Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
Court No. - 39
Case :- WRIT - A No. - 18432 of 2010
Petitioner :- Shanti Dham School Karwi Road & Another
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Bajrang Bahadur Singh
Counsel for Respondent :- C.S.C.
Connected with
1. Case :- WRIT - A No. - 64382 of 2010
Petitioner :- Narendra Kumar
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Akhilesh Kumar Singh
Counsel for Respondent :- C. S. C.
2. Case :- WRIT - A No. - 21802 of 2010
Petitioner :- Surendra Singh
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Akhilesh Kumar Singh
Counsel for Respondent :- C.S.C.
3. Case :- WRIT - A No. - 21928 of 2010
Petitioner :- Anand Pal
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Akhilesh Kumar Singh
Counsel for Respondent :- C. S. C.
4. Case :- WRIT - A No. - 27009 of 2010
Petitioner :- Santosh Kumar Gupta And Others
Respondent :- State Transport Authority And Anr.
Counsel for Petitioner :- Manu Ghildyal,C.P. Ghildyal
Counsel for Respondent :- C.S.C.
5. Case :- WRIT - A No. - 27010 of 2010
Petitioner :- Sanjay Kumar Gupta And Another
Respondent :- State Transport Authority And Anr.
Counsel for Petitioner :- Manu Ghildyal,C.P. Ghildyal
Counsel for Respondent :- C.S.C.
6. Case :- WRIT - A No. - 28407 of 2010
Petitioner :- Har Kishan
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Akhilesh Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble V.K. Shukla,J.
Hon'ble Suneet Kumar,J.
In this bunch of writ petitions, petitioners have come up with the following relief:
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned circular no. 433-STA/2010-58STA/2007 dated 5.3.2010 issued by respondent no. 2 and order/direction dated 19.03.2010 issued by respondent no. 3 contained as (Annexure no 1 & 2 respectively) to the writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 4 to not interfere in the peaceful operation of the school buses of the petitioners which are being plying to carry the children.
(iii) Issues any other writ, order or direction which this Hon'ble Court may deem fit and proper under circumstances of the case."
Writ No. 18432 of 2010 is being treated as leading writ petition.
Petitioners of the leading writ petition have come up with case that the purposes of providing easy and fair transportation facilities to the students of the institution the petitioners have obtained permits for operation of their vehicle No. MP-17A-2964 Model 1994, U.P. 95-6979, Model 1991, MP-16-A-7475 Model 1998), DL-1P-2778 Model 1992, MP-36-P-0120 Model 1998, MP-16-A-0711 model 1992, U.P. 75-7886 Model 1992, U.P. 07-B-6754 Model 1992 & HR 26-A-1148 model 1992, U.P. 78-B-6327 Model 1992, U.P. 78-B-6551 Model 1992, M.P.16-A-1163 Model 1992, DL-1P-3900 Model 1992. Petitioners have proceeded to mention that meeting of the State Transport Authority had been held on 23.02.2010 for fixation of age of transport vehicles State Transport Authority took decision for fixation of age limit of the transport vehicles in question in the backdrop of road saftey, pollution free transport facility, passenger facility. Thereafter minutes of the meeting dated 23.02.2010 has been circulated by secretary, State Transport Authority in respect of fixation of age of vehicle in question vide circular notice dated 05.03.2010, addressed to each Regional Transport Authority provided therein respective age of vehicles, in respective regions and respective cities in exercise of authority conferred under Sub-Section (4) of Section 68.
Petitioners at this juncture are before this Court and their submission is that fixation of age of vehicles in question is totally arbitrary and without any foundation and basis.
Courter affidavit has been filed and therein stand has been taken that Motor Vehicle Act, 1939 has been amended by Act No. 59 of 1988 and the said Act in question came in force with effect from 1st April 1989 replacing the Motor Vehicle Act, 1939 and the amendment in the aforesaid Act has been made to reduce the vehicle pollution and in order to ensure safety of the road user. Earlier to amendment of Act, 27 of 2000 requirement of obtaining Permits for educational institution buses was not mandatory but after enforcement of amendment Act, 27 of 2000, same has become mandatory. It has also been stated that re-scheduling of the age of motor vehicle has been introduced with the aim and object to maintain the environmental condition and in public interest. State Transport Authority has fixed the said condition for the purpose of grant of permit for use of particular vehicle for a particular period, in the interest of road safety, benefit and security of passengers and students as well as the pollution free transportation system, and accordingly there is no infirmity in the action taken.
Rejoinder affidavit has also been filed appending therein copy of the judgment and order of State Transport Authority in Revision No. 20 of 2010 with connected revisions.
After pleadings mentioned above have been exchanged present writ petition in question has been taken up for final hearing and disposal.
Learned counsel for the petitioners submitted with vehemence that petitioners are running school buses and State Transport Authority has acted with material illegality in fixing different age of the vehicle without considering road worthiness of the vehicle in question and fixation of age of vehicle has no nexus with the object sought to be achieved accordingly the order in question be quashed and petitioner be permitted to ply their buses upto the age of 20 years.
Countering the said submission, learned Standing counsel on the other hand contended that petitioners cannot be permitted to ply their vehicles beyond the prescribed age as described in the policy decision that has been taken by the State Transport authority and specially when its a conscious decision based on road safety, safety of students, pollution free traffic and as larger interest is being served, this Court should not at all interfere as same is virtually in the realm of policy decision.
First issue is to be answered by this Court is as to whether State Transport Authority has transgressed and overstepped its authority in issuing Circular dated 05.03.2010 at the point of time when it proceeds to fixed age of buses run by the institution concerned.
The first enactment relating to motor vehicles in India was the Indian Motor Vehicles Act, 1914. Said Act has subsequently been replaced by Motor Vehicle Act, 1939. The Act of 1939 had been amended several times. In spite of several amendment, it was felt necessary to bring out comprehensive legislation keeping in view the change in transport technology, pattern of passenger and freight movement, development of road network in the country and particularly the improved techniques in the motor vehicles management. In this direction lot of homework was done by Ministry of Transport, by discussing the matter with the Transport Minister of all States and Union Territories, and then Bill had been introduced in the Parliament, with the view to provide an Act to consolidate and amend law relating to motor vehicles, known as Motor Vehicle Act, 1988. After the said Act in question has been enforced, on various occasions amendments have been introduced namely Motor Vehicles (Amendment) Act, 1994; Motor Vehicles (Amendment) Act, 2001.
For the purposes of the case in hand, this Court takes note that under the definition Clause, sub-section (ii) of Section 2 defines "educational institution bus" means an omnibus, which is owned by a college, school or other educational system and used solely for the purpose of transporting student or staff of educational institution in connection with any of its activities. Chapter v deals with control of transport vehicle and Section 66 (1) restricts use of vehicle as transport vehicle in any public place without the permit and if permit is there, then strictly as per the terms and condition of permit. Earlier for school buses, there was no requirement of permit, but by means of amendment introduced by Act No. 27 of 2000, even school bus is required to have a permit. Power to grant permit is conferred in transport authority. Under Section 68 (1) State Government is empowered to constitute for the State, State Transport Authority to exercise and discharge, the powers and functions specified in sub-section (3) and in like manner constitute Regional Transport Authorises. Section 68(3) obligates State Transport Authority and every Regional Transport to effect to any directions issued under section 67, alongwith various other functions. For the purposes of exercising and discharging the power and functions under sub-Section (3), State Transport Authority, may issue directives to "Regional Transport Authority and he is obliged to ensure its compliance.
In order to consider the question as to whether the Regional Transport Authority, while granting permits can impose condition for grant of permit i.e. can he fix the age of the vehicle in question. Section 68 (3) and (4) of the Act, 1988 being relevant for the present case are being extracted below:
"68.Transport Authorities-
(1)............................
(2)........................
(3) The State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the following powers and functions, namely :-
(a) to co-ordinate and regulate the activities and policies of the Regional
Transport Authorities, if any, of the State ;
(b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions;
(c) to settle all disputes and decide all matters on which differences of opinion arise between Regional Transport Authorities;
[(ca) Government to formulate routes for plying stage carriages; and ]
(d) to discharge such other functions as may be prescribed.
(4) For the purpose of exercising and discharging the powers and functions specified in sub-section (3), a State Transport Authority may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority, and the Regional Transport Authority shall, in the discharge of its functions under this Act, give effect to and be guided by such directions."
Under Section 68 (3) of the Act, 1988, as noted and quoted above State Transport Authority subject to the directions issued by the State Government under Section 67 shall exercise and discharge throughout the State the functions and powers as enumerated in sub-section (3) and one of the major functions provided for in sub-section (3) is to co-ordinate and regulate the activities and policies of the Regional Transport Authorities of the State.
Apex Court in the case Subhash Chandra & Ors. Vs. State of U.P. & Ors, reported in AIR 1980 SC 800 in alike circumstances had occasion to consider a condition in Section 51(2) (x) of the Motor Vehicles Act, 1939 to the effect that vehicle should not be more than seven years of age from the date of registration during the validity of permit. The above provision was challenged. The Apex Court upheld the said condition by taking following view:
"4. Section 51(2) (x) authorises the imposition of any condition, of course, having a nexus with the statutory purpose. It is undeniable that human safety is one such purpose. The State's neglect in this area of policing public transport is deplorable but when it does act by prescribing a condition the court cannot be persuaded into little legalism and harmful negativism. The short question is whether the prescription that the bus shall be at a seven-year old model one is relevant to the condition of the vehicle and its passengers' comparative safety and comfort on our chaotic highways. Obviously, it is. The older the model, the less the chances of the latest safety measures being built into the vehicle. Every new model incorporates new devices to reduce danger and promote comfort. Every new model assures its age to be young, fresh and strong, less likely to suffer sudden failures and breakages, less susceptible to wear and tear and mental fatigue leading to unexpected collapse. When we buy a car or any other machine why do we look for the latest model? Vintage vehicles are good for centenarian display of curios and cannot but be mobile menaces on our notoriously neglected highways. We have no hesitation to hold, from the point of view of the human rights of road users, that the condition regarding the model of the permitted bus is within jurisdiction, and not to prescribe such safety clauses is abdication of statutory duty."
Thereafter before the Division Bench judgment of this Court in the case of Radhey Shyam Sharma Vs. Regional Transport Authority, Kathgodam, Nainital, reported in AIR 1991 Alld 158, Rule 88 of Central Motor Vehicles Rules, 1989 which provided that motor vehicle covered under permit should not be more than 9 years old with regard to national permit came up for consideration. The model condition of the aforesaid rule was challenged and the Division Bench of this Court upheld the vires of the rules and also the condition. Relevant extract of the said judgement is as follows:
"22. In view of the reports mentioned above and for the reasons given in the counter-affidavit, Government was fully justified in fixing the age/model condition of nine years of vehicles for use under national permit and it cannot be said that there was no reasons or material with the Government for framing the impugned rules. In fact from the perusal of the aforesaid reports and the reasons given in the counter-affidavit of the Government, we are satisfied that the Government was fully justified in fixing the age limit of nine years of a vehicle for operation under national permit."
The copy of the circular dated 05/3/2010, issued by the STA on the basis of the resolution dated 23/2/2010, issued in exercise of power under Section 68(4) of the Act, 1988 has been brought on record as Annexure SCA-1
Thereafter yet another Division Bench of this Court in the case of Smt. Munni Devi Vs. Regional Transport Authority, Meerut & Ors reported in 1995 AWC 890,. wherein, the R.T.A., Meerut while granting permit has put a condition that not more than 10 years old vehicles be provided. The said condition was assailed by stage carriage permit holders. This Court took the view that the STA can issue direction regarding fixation of age of vehicles. Even grant of permit by the R.T.A of the vehicle owners having 10 years old vehicles was upheld. Relevant extract of the said judgement is as follows:
"6.State Transport Authority, Lucknow (hereinafter referred to as S.T.A.) has fixed the model condition of twenty years for vehicles to be placed under stage carriage permits with the result that an operator is entitled to ply a vehicle which is not more than twenty years old. S.T.A. has also, in this connection, issued direction on 9.3.1993 under sub-section (4) of Section 68, to all the R.T.A.s. in this State requiring them to impose only twenty years model condition for plain routes and ten years model condition for hill routes. These directions have been issued by the S.T.A. in view of the difference of opinion on the question of model condition between the R.T.As. in this State. There is no dispute that S.T.A. can issue such a direction. Direction issued by S.T.A. under the above provisions is binding on the R.T.A. which is to "give effect to and be guided by such directions". R.T.A. while granting permits by the impugned resolution has referred to the aforesaid directions of S.T.A. and was conscious of the fact of fixation twenty years model condition by it and, therefore, it has not fixed any model condition contrary to that fixed by S.T.A. What it has done is that it has granted permits to persons holding vehicles of not more than ten years old. Fixing the model condition and granting permits to better models are two different things. By model condition, the maximum period upto which a vehicle can be used as a stage carriage under a permit is fixed. Without transgressing the model condition, it is always open to the transport authorities to grant permits to those applicants who have vehicles of better model. Such a condition is in the interest of travelling public. The order of the R.T.A. thus is not contrary to the direction issued by the S.T.A."
Even the other High Courts, faced with such a situation has been taking the same view, that such condition of prescribing age for vehicle, can be imposed while granting stage carriage permit. Karnataka High Court in the case of Bharat Kumar Vs. Karnataka State Transport Appellate Tribunal, AIR 1995 Kar 264, took the view that even in the absence of rules, conditions could be prescribed in the permit and such conditions are reasonable and such power to impose condition is traceable to the provision of Act itself. The expression "Specified description" used in Section 72 (2) of 1988 Act is similar to expression used in Section 48 (3) of 1939 Act. Specified description of stage carriage is not confined to its class or make but same includes the year of manufacture also. Calcutta High Court also in the case of Prasanna Kumar Dua Vs. State of West Bengal 2002 (2) ACC 293 (Cal) has taken the view that Transport Authorities are well within their authority to impose condition not to grant stage carriage permit to vehicles which are more than three years old from the date of initial registration for security safety of passengers and to control pollution.
State Transport Authority under the scheme of things provided for has ample authority to fix age of vehicles to be placed under "stage carriage" permits, and issue necessary directive in the said direction to Regional Transport Authorities, who are duty bound to give effect to and be guided by such directions. In view of this Regional Transport Authority being bound by the directive of State Transport Authority, at the point of time, when he proceeds to issue permit, as one of the conditions of permit, can provide for the age of vehicle in question. Such power to impose condition is traceable and referable to the provisions and the scheme of Act itself, and it cannot be said that such power is exercised by the authority beyond its competence or beyond its jurisdiction.
In the present case, this much is clear that Circular dated 05.03.2010 has been issued by the Secretary State Transport Authority on the basis of resolution dated 23.02.2010 issued in exercise of the authority vested under Section 68 (4) of the Act. The circular in question clearly reflects that same deals with specially in respect of school bus by mentioning that for school bus, the security measures and passengers facilities has to be better as compared to other passenger vehicle. As to what should be age fixed for school bus in question, the same has been distinctly dealt with qua the other category passenger bus, and resolve has accordingly been taken. In rural are a age of school bus without CNG has been fixed as 12 years and in urban area without CNG has been fixed as 10 years. Similarly in urban area, age of school bus with CNG has been fixed 12 years and in rural area with CNG has been fixed as 15 yeas. Once no disparity is there, and there is total uniformity, in the matter of fixation of age of bus, in the entire state qua rural area and urban area then said action cannot be faulted. State Transport Authority has neither transgressed nor over stepped its jurisdiction in fixing age of school bus to be placed under stage "carriage permits" for securing safety of students and to control pollution.
This Court would be failing in its duty by not taking note of the order passed in Civil Misc. Writ Petition No. 46190 of 2003 (Ram Prakash and others Vs. State of U.P.) wherein this Court had issued following direction.
" The Secretary, Regional Transport Authority shall issue permit to the petitioner after verifying the fact that the petitioner has a vehicle which is roadworthy and fit in condition. He will ensure that the vehicle which is owned by petitioner is of the model which is within period of 20 years"
This Court finds, that the order that had been passed in the year 2003, on 15.10.2003 is being followed bereft of the order of State Transport Authority dated 05.03.2010, impugned in the present writ petition. The said order has been followed in the following writ petitions. Civil Misc. Writ Petition No. 19461 of 2010, Sri Guru Ram Rai Public School Vs.State of U.P. decided on 09.04.2010 wherein following orders have been passed:
Hon'ble Askok Bhushan,J.
Hon'ble Virendra Singh, J
After hearing the learned counsel for the petitioner and the learned standing counsel, we dispose of this petition in terms of the judgement and order of this Court dated 15.10.2003 passed in Civil Misc. Writ Petition No. 46190 of 2003 (Ram Prakash and another Vs. State of U.P. and others) wherein this Court had issued the following direction:-
"The Secretary, Regional Transport Authority, respondent No.3 shall issue permit to the petitioner after verifying the fact that the petitioner has a vehicle which is roadworthy and fit in condition. He will also ensure that the vehicle which is owned by the petitioner is of the model which is within the period of 20 years."
Order Date: 9.4.2010
This Court in Civil Misc. Writ Petition No. 29567 of 2010 decided on 21.05.2010 passed following orders:
Hon'ble Vineet Saran, J
Hon'ble Ran Vijai Singh,J
After hearing the learned counsel for the petitioner and the learned standing counsel, we dispose of this petition in terms of the judgement and order of this Court dated 15.10.2003 passed in Civil Misc. Writ Petition No. 46190 of 2003 (Ram Prakash and another Vs. State of U.P. and others) wherein this Court had issued the following direction:-
"The Secretary, Regional Transport Authority, respondent No.3 shall issue permit to the petitioner after verifying the fact that the petitioner has a vehicle which is roadworthy and fit in condition. He will also ensure that the vehicle which is owned by the petitioner is of the model which is within the period of 20 years."
Dt. 21.5.2010
This Court in Civil Misc. Writ Petition No. 58181 of 2010 (Vikash Modern School Vs. State of U.P. and others) decided on 21.09.2010 passed following orders;
Hon'ble Amitava Lala, J
Hon'ble Askok Srivastava,J
After hearing the learned counsel for the petitioner and the learned standing counsel, we dispose of this petition in terms of the judgement and order of this Court dated 15.10.2003 passed in Civil Misc. Writ Petition No. 46190 of 2003 (Ram Prakash and another Vs. State of U.P. and others) wherein this Court had issued the following direction:-
"The Secretary, Regional Transport Authority, respondent No.3 shall issue permit to the petitioner after verifying the fact that the petitioner has a vehicle which is roadworthy and fit in condition. He will also ensure that the vehicle which is owned by the petitioner is of the model which is within the period of 20 years.
No order is passed as to cost
Order dated 21.09.2010
Based on various order passed by this Court, and the said order being impugned before the Tribunal, State Transport Authority proceeded to place the impugned resolution of the present writ petition in abeyance on 14.06.2010 for period of one year or till the matter is decided by the Court, whichever is earlier. The travesty of justice is also fully reflected from the circumstances and the fact, that the Tribunal in stead of deciding the matter on merits, in its order dated 08.10.2010, has proceeded to mention that judgment of this Court in Writ Petition No. 19461 of 2010 Sri Guru Ram Rai Public School Vs. State of U.P. has been produced before him wherein judgment in writ petition no. 46190 of 2003 Ram Prakash Vs. State of U.P. has been relied upon and the above mentioned order of High Court is applicable to Revisions therefore, Revisions before him and are allowed. The fact of the matter is that validly of resolution on its merit has not at all been gone into.
Revision before the State Transport Appellate Tribunal U.P. at Lucknow alongwith bunch of Revision has been decided on 08.10.2010 by proceeding to make following observations:
"Revisions are allowed. Impugned orders are set aside. It is hereby directed that the age limit for the stage carriage plying on various routes:single storied vehicles shall be 20 years and for non-C.N.G. city bus shall be 15 years and for C.N.G. city bus shall be 12 years as existed before 23.2.2010. However, the age limit for C.N.G. vehicles in Ghaziabad shall be 15 years.
Record received from the lower authorities be sent back to their offices.
A copy of this judgment be kept on the record of each of Revisions Nos.21/2010 to 41/2010, 43/2010 to 64/2010, 69/2010, 99/2010, 100/2010, 104/2010,107/2010 to 158/2010,175/2010 to 177/2010 & 199/2010 and the original judgment be retained on the record of Revision No.20/2010.
Sd/-illegible
8.102010
(Suresh Kumar Srivastava) Chairman" .
Decision taken in the Revision by the State Transport Appellate Tribunal U.P. at Lucknow was confined only in reference of single storied vehicles, Non-C.N.G vehicles city buses, C.N.G vehicles city buses, and at no point of time before the State Transport Appellate Tribunal U.P. at Lucknow there has been an issue in respect of school buses and the net effect of the same is that as far as school buses are concerned there age has to be dealt with as per the criteria as has been provided therein.
In the case of Mahraj Uddin and others Vs. State of U.P. and others (Civil Misc. Writ Petition No. 26114 of 2011) decided on 26.05.2011, this Court has been dealing the incumbents who have been plying their three wheeler within the municipal limit, in such a situation this Court proceeded to pass following orders :
"In view of the foregoing discussions and conclusions, we dispose of this writ petition with the following directions:
1.The S.T.A. is fully justified to put model condition regarding age of vehicles (including three wheeler).
2.The decision of the STA dated 23/2/2010, which is the basis for putting model condition in the petitioners permit that vehicles are to be changed after 5 years, having been set-aside, the period of 5 years in the model condition in the permits of the petitioners shall stand substituted by the period of 7 years which was prevalent prior to 23/2/2010.
3.The model condition in the petitioners vehicles (which are three wheelers) shall be read to the effect that the petitioners have to change their vehicles after 7 years, failing which their permits shall be treated to be automatically cancelled.
4.That the above directions shall continue till the STA takes any other decision fixing any other age of vehicles (three wheelers) in accordance with law.
The prayer of the petitioners that a direction be issued to the respondent no.2, Regional Transport Officer, Meerut to permit the petitioners to ply their three wheelers up to the age of 20 years, cannot be granted and is refused."
This Court once again in the case of Surise Public School Through Caretaker and others Vs. State of U.P. and others (Civil Misc. Writ Petition No. 9950 2013) decided on 22.02.2013 wherein similar prayer had been made for issuing direction in the nature of mandamus directing the respondents to issue permit and fitness certificate to the petitioners' vehicles fixing the age of vehicles upto 20 years old model has not been accepted and writ petition in question has been dismissed.
Here in the present case also as far as this Court is concerned it will not at all come to the rescue or reprieve of the petitioner by directing the Respondents not to fix age of vehicle at the point of time of issuance of permit/continuance of permit, as condition of permit, as challenge made is unsustainable for the reasons already mentioned above, the same being in the realm of policy decision for securing safety of passenger and control pollution.
In view of this there is no scope of interference and accordingly this bunch of writ petition are dismissed.
(Suneet Kumar, J.) (V.K. Shukla,J.)
Order Date :- 10.12.2013
Dhruv
