Taxi Sumo Stand No vs Ut Of J&K & Others
2024 Latest Caselaw 1617 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Taxi Sumo Stand No vs Ut Of J&K & Others on 25 October, 2024

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

     IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR

                                               Reserved on: 18.10.2024
                                               Pronounced on: 25.10.2024

                         LPA No.166/2024
                         CM No.5875/2024

TAXI SUMO STAND NO.1                             ...APPELLANT(S)
Through: -   Mr. Hilal Ahmad Wani, Advocate.

Vs.

UT OF J&K & OTHERS              ...RESPONDENT(S)
Through:-    Mr. Bikramdeep Singh, Dy. AG.


CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
             HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                            JUDGMENT

Per Sanjeev Kumar 'J'

1) This intra-court appeal by Taxi Sumo Stand No.1,

Mehandi Kadal, Anantnag, filed through its President Abdul

Haq Bhat, is directed against an order and judgment dated

31st May, 2024, passed by learned Single Judge [Writ Court]

of this Court in WP(C) No.282/2020 titled "Taxi Sumo

Stand vs. UT of J&K & Ors." whereby the Writ Court has

dismissed the writ petition filed by the appellants.

2) The appellant is a motor transport undertaking

registered with the Labour Department and Mr. Abdul Haq

Bhat claims to be its President. In the year 2018, the

Transport Commissioner vide notification No.50-MVD of

2018 dated 20th July, 2018, specified a place at Mehandi

Kadal, Anantnag, to be used by the appellants as a stand

for contract carriage (Taxi/Maxi Cabs). The appellants were

permitted to park thirty vehicles which were specified in the

aforesaid notification. This permission was to remain

effective only for a period of one year subject to the validity

of the agreement executed between the parties involved.

The appellants have also placed on record a lease deed

executed between Chief Executive Officer, Municipal

Council, Anantnag, and the appellant through it's the then

President and Secretary. The lease was valid for a period of

three years. The appellant claims that ever since the Taxi

Sumos' attached to the appellant transport undertaking are

operating from Stand No.1 Mehendi Kadal, Anantnag,

without any obstruction or hindrance from any quarter,

there has been no complaint by any person against their

operation from the said taxi stand. It is the case setup by

the appellants that till the year 2020, the Taxi Sumo Stand

No.1 was being operated from Mehandi Kadal but on 3rd

February, 2020, the Executive Officer, Municipal Council,

Anantnag, vide communication No.MC/ANG/20/974-81

called upon the appellant to shift TATA Sumo Stand from

the present location i.e. DOB Stand Mehandi Kadal to

Mehandi Kadal (New Bypass) adjacent to Police Station,

Sadder, on the earmarked space immediately. The

appellant felt aggrieved by the aforesaid communication

and, accordingly, filed WP(C) No/282/2020 seeking, inter

alia, Writ of Certiorari to quash the communication dated

3rd of February, 2020, issued by Municipal Council,

Anantnag, and also for a Writ of Mandamus commanding

the respondents not to shift the Taxi Sumo Stand No.1

Mehandi Kadal, Anantnag, from its present place of

operation. The entire writ petition was premised on the

ground that the Executive Officer, Municipal Council,

Anantnag, was not competent to order shifting of Taxi Sumo

Stand, for the power to notify Taxi Stand and to shift Taxi

stand from one place to another was vested in the

Government or the authorized officer under Section 117 of

the Motor Vehicles Act, 1988. The communication of

Municipal Council, impugned in the writ petition, was also

assailed on the ground that it had the effect of depriving the

appellants of their livelihood and, therefore, violative of

Article 19 and 21 of the Constitution of India.

3) The writ petition filed by the appellants was contested

by the respondents. In the reply affidavit filed by Deputy

Commissioner, Anantnag, it was submitted that the order

impugned in the writ petition was issued by the Executive

Office, Municipal Council, Anantnag, with the consent of

District Administration to decongest the traffic between

Mehendi Kadal to Janglat Mandi. It was submitted that the

unregulated flow of taxies/sumo's from the existing stand

through Anantnag was a single reason responsible for

impeding the free movement of vehicular traffic and causing

huge inconvenience to the public. It was pleaded that due

to inadequate space at Taxi Sumo Stand No.1, the Sumo

Stand operators were routinely parking their vehicles on

roadside and thereby choking the inherently constrained

arterial road of the town leading to District Hospital,

Anantnag. It was further case of the respondents before the

Writ Court that the Sumo Stand No.1 was established in

the year 2018 and registration for operation of the Stand

expired on 31st December, 2019. This was evident from the

communication of ARTO, Anantnag, bearing No.MVD/

ARTO/Ant/2021/1440 dated 14.02.2020. It was, in short,

the stand of the respondents that after 31st December,

2019, there was no registration of the appellant and,

therefore, the appellant and its members were operating

from the Stand in question illegally. Finally, it was pleaded

before the Writ Court that in lieu of the old Sumo Stand,

the respondents have offered a chunk of land measuring

one kanal at Mehandi Kadal itself and the new location was

separated from the old one by a distance of 100 meters.

4) The Writ Court considered the rival contentions and

was of the opinion that the location of a Bus Stand or Taxi

Stand in a public place is a prerogative of the Government

governed by a policy decision to be taken at an appropriate

level and the Writ Court, in the exercise of its jurisdiction

under Article 226 of the Constitution, cannot sit in appeal

over the policy matter of the Government unless the policy

or impugned action is inconsistent with the Constitution or

is found arbitrary, irrational or an act of abuse of power.

The writ petition was, accordingly, dismissed vide order and

judgment impugned in this appeal.

5) Having heard learned counsel for the parties and

perused the material on record, we are of the considered

opinion that the controversy raised by the appellants in

their writ petition and now before us needs to be viewed

from an angle slightly different from the Writ Court.

Indisputably, the appellant and its members are operating

their taxies/sumo from Stand No.1 Mehandi Kadal,

Anantnag, since the year 2018, when in terms of

notification No.50-MVD of 2018 dated 20th July, 2018, the

then Transport Commissioner, J&K Government, specified

the place to be used as Stand by the appellants for contract

carriage (Taxi/Maxi Cabs). As is evident from the

notification, only thirty vehicles were permitted to be

parked in Stand No.1 Mehandi Kadal, Anantnag and the

permission was valid only for a period of one year. Despite

repeated queries from us, learned counsel appearing from

the appellant could not show us the extension of permission

granted vide notification dated 20th July, 2018. Rather

stand of the respondents which is on record in the shape of

reply affidavit of Deputy Commissioner is that there is no

extension of the temporary permission granted by the

Transport Commissioner vide notification dated 20th July,

2018 after the expiry of period of one year stipulated in the

said notification. It is the stand of the Transport

Department that after 20th July, 2019, the appellant is

operating from Stand No.1 Mehandi Kadal illegally and

unauthorizedly. Learned counsel for the appellant placed

strong reliance on the certificate of registration issued by

the Labour Department for operating motor transport

service employing not more than 54 persons on any one day

during the years subject to the provisions of Motor

Transport Workers Act, 1951 and the Rules framed

thereunder, which as per the appellant has been renewed

from time to time. Needless to say, that registration of the

appellant to work as a motor transport undertaking under

the Motor Transport Workers Act, 1951 and the Rules framed

thereunder, is different from the permission that is required

from the Government or an authorized officer in terms of

Section 117 of Motor Vehicles Acts, 1988 for determining a

place to be used as a bus/taxi stand. Section 117 of the

Motor Vehicles Act, 1988, reads thus:

"117. Parking places and halting stations.--The State Government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers."

6) From reading of Section 117 (supra), it clearly

transpires that a place to be used as bus stand is required

to be notified by the Government or an authorized officer in

this behalf in consultation with the local authority. If the

stand to be notified is within the jurisdiction of a local body

like Municipal Council, the consent of such authority is

necessary before the Government or its authorized officer

notifies a particular place as a stand for contract carriage.

7) The plea of learned counsel for the appellants that

since the place was allocated to the appellants for operating

their stand at Mehandi Kadal Anantnag was under the

orders of Transport Commissioner and, as such, the

Executive Officer, Municipal Council, Anantnag, had no

authority to revoke such permission, is without any

substance and deserves outright rejection. The permission

which was granted to the appellants to operate their stand

from Mehandi Kadal Anantnag vide notification dated 20th

July, 2018 was temporary and for a period of one year only.

As we have noticed above and is otherwise an unequivocal

stand of the respondents that this permission granted by

notification dated 20th July, 2018 for one year was never

extended. If that being the position, the operation of the

Taxi Sumo Stand No.1 Mehandi Kadal, Anantnag, by the

appellants is illegal and unauthorized with effect from 21st

July, 2019. Since Taxi Sumo Stand No.1 Mehendi Kadal,

Anantnag, is situate within the territorial limits of

Municipal Council, Anantnag, as such, the Municipal

Council, Anantnag, is well within its power to direct its

shifting to a new location. Needless to say, that for

operating the Taxi Sumo Stand at new location proposed by

Municipal Council, Anantnag, a proper notification under

Section 117 of the Motor Vehicles Act, 1988, read with Rule

180 and 181 of the J&K Motor Vehicles Rules, 1991, is

imperative.

8) Mr. Hilal Wani, learned counsel appearing for the

appellants, vehemently urged that the new location which

is proposed by the Municipal Council is not available on

spot and, therefore, if the appellants are shifted from the

existing place of their operation, they would be left high and

dry and deprived of their only means of livelihood. We have

given our thoughtful consideration to this aspect of matter.

While we do not find any illegality or infirmity in the

communication of Executive Officer, Municipal Council,

Anantnag, impugned before the Writ Court, yet we find that,

with a view to serve the ends of justice, some measures are

required to be taken to adequately rehabilitate the

appellants.

9) For the foregoing reasons, we dispose of this appeal

(I) The appellants have no legal right or justification to operate their taxi sumos' from Taxi Sumo Stand No.1 Mehandi Kadal, Anantnag, which was notified as a stand for contract carriage vide notification No.50-MVD of 2018 dated 20th July, 2018, for parking thirty vehicles only. This is so because the permission granted by the notification was temporary and valid only for a period of one year, which, admittedly, is not extended thereafter.

(II) That the respondents, in particular Deputy Commissioner, Anantnag, shall take requisite steps and ensure that the land measuring one kanal at Mehandi Kadal (Bypass) adjacent to Police Station, Sadder, is made available to the appellants free from any encumbrance on lease/licence basis in accordance with law. The Transport Commissioner

shall thereafter issue a formal notification under Section 117 of Motor Vehicles Act, 1988 read with Rules 180 and 181 of the J&K Motor Vehicles Rules, 1991, notifying the land so allotted to the appellants at Mehandi Kadal (Bypass) adjacent to Police Station, Sadder, as a Stand for contract carriage.

(III) That till the direction No.(II) is implemented in letter and spirit, the appellants and thirty vehicles only, the details whereof are given in notification dated 20th July, 2018, shall be permitted to operate from Taxi Sumo Stand No.1 Mehandi Kadal, Anantnag.

(IV) That immediately after implementation of direction No.(II), the appellant shall shift to the new location without any further waste of time and in case of any resistance, the District Administration shall be within its power to use reasonable power to ensure such shifting.

10) The impugned order and judgment of the Writ Court

is modified to the aforesaid extent.

                                               (RAJESH SEKHRI)            (SANJEEV KUMAR)
                                                    JUDGE                     JUDGE
                                Srinagar,
                                25 .10.2024
                                "Bhat Altaf-Secy"

                                               Whether the order is reportable: Yes/No