Mohd. Firoz vs State Of U.P. Thru. Prin.Secy. ...
2017 Latest Caselaw 1811 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved 
 

 

 
Case :- MISC. BENCH No. - 3454 of 2017
 

 
Petitioner :- Mohd. Firoz
 
Respondent :- State Of U.P. Thru. Prin.Secy. Transport Deptt.& 3 Ors.
 
Counsel for Petitioner :- Dr. Deepti Tripathi,Randheer Singh Malik
 
Counsel for Respondent :- C.S.C,C.B. Pandey
 

 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Sheo Kumar Singh-I,J.

(Delivered by Sheo Kumar Singh-I, J.)

1. By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-

I. Issue a writ in the nature of mandamus commanding to the respondent no.1 and 2 to modify the notification no.7/2016/1125/XXX-2-2016-03(25)/16 dated 14th September 2016 as well as final notification No. 1/2017/1416XXX-2-2016-03 (25)/16 dated 03.01.2017 in reference to route Muzaffarnagar-Kutehshra via Rohana and allied route and include/accommodate the petitioner's permit number P.St.P No. 447/3443 along with other four similarly situated permit holder's permit numbers mentioned in Column 4 (4) in final notification dated 03.01.2017.

II. Issue a writ, order or direction in the nature of mandamus commanding the Respondent Nos.1 and 2 to include/accommodate the petitioner's permit along with buses of Uttar Pradesh State Road Transport Corporation in notification dated 29.05.1993 as modified by pre-notification no. 7/2016/1125/30-2-2016-03 (25)/16 dated 14th September, 2016 as well as final notification No.1/2017/1416/XXX-2-2016-03(25)/16 dated 03.01.2017 and permitted to ply their vehicle on the route Muzaffarnagar-Kutehshra via Rohana and allied routes as other four similarly situated permit holders have been included/accommodated and mentioned their permit numbers in column no.4 (4) in the notification dated 03.01.2017 under Section 102 of the Motor Vehicle Act, 1988 in public interest.

III. Issue a writ in the nature of mandamus commanding the respondent nos. 1 and 2 to not give effect the impugned Notification No.1/2017/1416/XXX-2-2016-03(25)16 dated 03.01.2017 [contained as Annexure No.6] until and unless to include/accommodate the petitioner's permit no. 447/3443 along with other four similarly situated permit holders holding permit nos. 1558/3444; 1562/3442; 1565/3441; 1755/3440, which have been included/accommodate in the notification dated 03.01.2017 mentioned at column no.4 [4] in scheme dated 29.05.1993 modified with pre-notification no. 7/2016/1125/30-02-2016-03(25)/16 dated 14th September, 2016 and finally notified as final notification no. 1/2017/1416/XXX-2-2016 -03(25)16 dated 03.01.2017 to ply their vehicle on the route Muzaffarnagar-Kutehshra via Rohana and allied routes. Their permit numbers have been mentioned in proposed modification Column-4 under Section 102 of the Motor Vehicle Act, 1988 [Act No. 59 of 1988] read with rule 128 and rule 129 of the Uttar Pradesh Motor Vehicle Rules, 1998 in public interest.

IV. Issue a writ in the nature of mandamus commanding the relevant respondents to permit the petitioner to ply his vehicle along with other four similarly situated permit holders on the route in question on the basis of his regular stage carriage permit in the interest of justice.

2. The brief facts giving rise to filing of the present writ petition are that the petitioner is a regular stage carriage permit holder for route Muzaffarnagar-Kutehshra via Rohana and allied routes. Before 13.02.1986, five permit holders were permitted to ply the buses on the route in question and the petitioner was one of them regular stage carriage permit holder but while issuing the order impugned dated 03.01.2017 the permit of the petitioner was not included in the list of the persons authorised to ply the vehicles on above route, thus, the present writ petition.

3. For proper adjudication of the controversy involved in the present writ petition, it would be just to reproduce below the relevant provisions of Motor Vehicle Act 1988 -

2. Definitions. - In this Act, unless the context otherwise requires, -

(38) "route" means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another ;

98. Chapter to override Chapter V and other laws.- The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law.

99. Preparation and publication of proposal regarding road transport service of a State transport undertaking. - (1) Where any State Government is of 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 road 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, whether to the exclusion, complete or partial, of other persons or otherwise, the State Government may formulate a proposal regarding a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and other relevant particulars respecting thereto and shall publish such proposal in the Official Gazette of the State formulating such proposal and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deem fit.

(2) Notwithstanding anything contained in sub-section (1), when a proposal is published under that sub-section , then from the date of publication of such proposal, no permit shall be granted to any person, except a temporary permit during the pendency of the proposal and such temporary permit shall be valid only for a period on one year from the date of its issue or till the date of final publication of the scheme under section 100, whichever is earlier.

100. Objection to the proposal. - (1) On the publication of any proposal regarding a scheme in the Official Gazette and in not less than one newspaper in the regional language circulating in the area or route which is to be covered by such proposal any person may, within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Government.

(2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State transport undertaking to be heard in the matter, if they so desire, approve or modify such proposal.

(3) The scheme relating to the proposal as approved or modified under subsection (2) shall then be published in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become final on the date of its publication in the Official Gazette and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route ;

Provided that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government.

(4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under sub-section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under sub-section (1), the proposal shall be deemed to have lapsed.

Explanation. - In computing the period of one year referred to in this subsection, any period or periods during which the publication of the approved scheme under sub-section (3) was held up on account of any stay or injunction by the order of any Court shall be excluded.

101. Operation of additional services by a State transport undertaking in certain circumstances. - Notwithstanding anything contained in section 87, a State transport undertaking may, in the public interest operate additional services for the conveyance of the passengers on special occasions such as to and from fairs and religious gatherings.

Provided that the State transport undertaking shall inform about the operation of such additional services to the concerned Transport Authority without delay.

102. Cancellation or modification of scheme.- (1) The State Government may, at any time, if it considers necessary, in the public interest so to do, modify any approved scheme after giving -

(i) the State transport undertaking ; and

(ii) any other person who, in the opinion of the State Government , is likely to be affected by the proposed modification, an opportunity of being heard in respect of the proposed modification.

(2) The State Government shall publish any modification proposed under sub-section (1) in the Official Gazette and in one of the newspapers in the regional languages circulating in the area in which it is proposed to be covered by such modification, together with the date, not being less than thirty days from such publication in the Official Gazette, and the time and place at which any representation received in this behalf will be heard by the State Government.

103. Issue of permits to State transport undertakings. - (1) Where, in pursuance of an approved scheme, any State Transport undertaking applies in such manner as may be prescribed by the State Government in this behalf for a stage carriage permit or a goods carriage permit or a contract carriage permit in respect of a notified area or notified route, the State Transport Authority in any case where the said area or route lies in more than one region and the Regional Transport Authority in any other case shall issue such permit to the State Transport undertaking, notwithstanding anything to the contrary contained in Chapter V. (2) For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the State Transport Authority or, as the case may be, the Regional Transport Authority concerned may, by order,-

(a) refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending ;

(b) cancel any existing permit ;

(c) modify the terms of any existing permit so as to -

(i) render the permit ineffective beyond a specified date ;

(ii) reduce the number of vehicles authorised to be used under the permit;

(iii) curtail the are or route covered by the permit in so far as such permit relates to the notified area or notified route.

(3) For the removal of doubts, it is hereby declared that no appeal shall lie against any action taken, or order passed, by the State Transport Authority or any Regional Transport Authority under sub-section (1) or sub-section (2).

104. Restriction on grant of permits in respect of a notified area or notified route. - 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 that area or route.

4. Section 100 deals with the objection to the proposal. Under sub-section (1), any person can file objections within thirty days from the date of publication of the scheme in the official Gazette, before the State Government. Under sub-section (2), the State Government had to decide the objections and thereafter, under sub-section (3), it is to be published in the official Gazette and not less than one newspaper in the regional language circulating in the area or route covered by such scheme. Sub-section (4) provides a limitation of one year for publication of the approved scheme from the date of publication of the proposal otherwise the proposal would be deemed to have lapsed. However, the period of stay or injunction by the order of any Court is to be excluded while counting the period of one year.

5. Under Section 101, the State Transport Undertaking has been empowered to operate additional service for the conveyance of the passengers on special occasions, like fairs and religious gatherings, after informing the Transport Authority concerned.

6. Under Section 102 the State Government has been empowered to modify any approval scheme in the public interest but it could be done only after giving an opportunity of being heard to the State Transport undertaking and to any person who is likely to be affected by the proposed modification.

7. Section 103 deals with the provisions for the issuance of permits to the State Transport Undertaking after a scheme has been approved. It obliges the State Transport Authority or the Regional Transport Authority to issue permit to the State Transport Undertaking if it so applies. Under Sub-section (2), the Authority has been empowered to refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending, cancel any existing permit or modify the terms of any existing permit rendering it ineffective beyond a specified date or to reduce the number of vehicles authorized to be used under the permit or to curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route. Sub-section (3) makes the order of the Authority final as it provides that no appeal shall lie against any action taken, or order passed sub-section (1) or sub Section (2).

8. Section 104 prohibits grant of any permit except in accordance with the provisions of the notified scheme. However, under the proviso, if the State Transport Undertaking has not made any application for a permit in respect of any notified area or notified route pursuant to the approved scheme, the Transport Authority 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. This provision is analogous to Section 68FF or the 1939 Act.

9. Learned counsel for the petitioner has argued that the petitioner was one of the regular stage carriage permit holder but his permit has not been included in the latest notification issued on 03.01.2017. He has further argued that it is violative of Article 14 and 19(1)(g) of the Constitution of India.

10. Learned counsel for the respondents has submitted that on 13.02.1986 a scheme was proposed to notify 38 routes under Section 68(c) of the old Act, having the effect of totally excluding all private operators from the said route. Objections raised by the existing operators were considered by the hearing authority and it was held that the scheme stands lapsed under Section 100(4) after the notification of the new Motor Vehicles Act 1988. The aforesaid decision was challenged before this Court and objections challenging the orders were dismissed. The said judgment was challenged before the Supreme Court in the case of Ram Krishna Verma v. State of U.P. reported in (1992) 2 SCC 620 and the judgment of the High Court was reversed and it was affirmed that the scheme had not lapsed and the same was required to be finalized. Subsequently vide notification dated 29.05.1993 published under section 100(3) of the Act, a scheme was finalized, totally excluding the private operators giving exclusive right of operation to the U.P. State Road Transport Corporation (for short UPSRTC). The said notification was again challenged by filing the writ petitions which were dismissed but the Special Leave Petitions filed against the judgment were allowed and the matter was again remanded back to the hearing authority to consider the objections which had been filed by the private operators and which were under consideration when the impugned notification had been issued. The hearing authority vide its order dated 02.11.2001 allowed the existing operators to ply on the route in question along with UPSRTC. A writ petition No.CMWP 9333 of 2002 was allowed vide order and judgment dated 01.06.2007 holding that permit holders who were granted permits prior to 1986 were entitled to get compensation according to the provisions of Motor Vehicles Act, 1988. The State Government vide its order dated 09.08.2007 took a decision to allow the private operators to operate on the route in question along with UPSRTC and subsequently a final notification was issued on 28.03.2008 allowing private operators to operate on the notified route in question along with the UPSRTC. The State authorities in meeting dated 22.08.2009, after hearing the objections of the permit holders, decided to allow the private operators to ply on the non-nationalized part of the routes and accordingly, to issue permits. On 22.08.2009 permits to private operators were issued on Kasauli-Kuteshra-Dahchand-Rohana-Khampur-Khudda Nagla and allied routes excluding the nationalized part of the route. The State Government on 14.09.2016 issued notification under Section 102(1) & (2) in which four permits included in the scheme dated 29.05.1993 and permitted to ply on the said route alongwith UPSRTC but the petitioner's permit was not notified.

11. The contention of the learned counsel for the petitioner is that the permit of the petitioner was excluded on the route in question despite the fact that the petitioner's permit is also prior to 19.02.1986 and is at par with other four permit holders included in the notification dated 14.09.2016 issued under Section 100 (1) & 2) of the new Act.

12. Learned counsel for the respondents has submitted that the State Government prior to issuance of the notification dated 14.09.2016 had sought a report from the Transport Commissioner, U.P. with respect to various representations on the subject matter and the Transport Commissioner had submitted its report dated 23.05.2016 according to which Deputy Transport Commissioner, Meerut Zone, had submitted report dated 29.04.2016 that four buses by private operators are plying on Muzaffarnagar-Kuteshra via Rohana and allied route and accordingly the State Government granted permit to four private operators on the said route and as such those four private operators had been included in the notification dated 14.09.2016. The petitioner had moved a representation with the request to include his permit number in the notification and the hearing authority heard the petitioner and decided the objection vide order dated 02.11.2016. The hearing authority was of the view that he has no jurisdiction to decide the issue regarding inclusion of other connecting/allied routes as the same is the prerogative of the State Government. Since the permit of the petitioner was not included in the notification dated 14.09.2016 issued by the State Government hence the hearing authority held that he has no jurisdiction to decide the issue regarding inclusion of the permit of the petitioner in the notification dated 14.09.2016. The Transport Commissioner vide report dated 23.05.2016 had submitted that only four private operators are operating their buses on the said route and the petitioner's name was not included in the aforesaid list. Thus, the petitioner's permit No.447/3443 has not been included in the said notification.

13. One Babu Ram has filed affidavit in which it has been stated that the petitioner has transferred his permit in favour of Anuj Kumar son of Shri Karan Pal resident of 765/1, Civil Lines, South-8, District Muzaffar Nagar and a joint application dated 22.07.2015 had been filed before filing the present writ petition. The information as submitted by the deponent has been given by the Assistant Regional Transport Officer (Administration) Saharanpur under Right to Information Act, 2005 on 15.04.2017 on the application of one Suresh Chand Tyagi, the operator of the route in question. The copy of the information supplied by the Public Information Officer/Assistant Regional Transport Officer (Administration) Saharanpur dated 15.04.2017 has been filed and is on record and the same has not been contradicted by the petitioner.

14. On the ground mentioned above it has been contended by the learned counsel for the respondents that the petitioner has lost his interest in the permit and has willfully concealed this fact and has filed the present writ petition concealing the material facts.

15. Considering the facts as mentioned above and in light of the fact that the petitioner was not plying the vehicle on the route in question as reported by the Transport Commissioner and he has transferred his permit in favour of another person, the writ petition is not maintainable, lacks merit and deserves to be dismissed. The petition is accordingly dismissed. No order as to costs.

Dated: 04.07.2017.

 
A. Katiyar
 
(Sheo Kumar Singh-I, J.)              (Shri Narayan Shukla, J.)