Madras High Court
V.Jayaprakash vs The State Of Tamil Nadu on 3 October, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
2024:MHC:3513
W.P.No.9093 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 29.08.2024
PRONOUNCED ON : 03.10.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.9093 of 2011
and M.P.Nos.1 & 2 of 2011
V.Jayaprakash ... Petitioner
-Vs-
1. The State of Tamil Nadu,
Rep. by its Secretary,
Home (Transport) Department,
Fort St. George,
Chennai – 600 009.
2. The Union Territory of Pondicherry,
Rep. by its Secretary,
Home (Transport) Department,
Puducherry.
3. The State Transport Authority,
Chepauk,
Chennai – 5.
4. N.Gopalakrishnan ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records of the first
respondent made in G.O.Ms.No.118 Home (Transport III) dated
18.02.2011 as published in the Tamil Nadu Government Gazette
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Page 1 of 32
W.P.No.9093 of 2011
Extraordinary in Part II Section 2 dated 18.02.2011 and quash the same
so far as it pertains to the inclusion of the route of the fourth respondent
namely Pondicherry to Cuddaore via Reddichavadi found at Sl.No.24 in
Annexure II to the Supplementary Reciprocal agreement.
For Petitioner : Mr.M.Palani
For Respondents
For R1 & R3 : Mr.N.Naveen Kumar
Government Advocate
For R2 : Mr.V.Vasantha Kumar
Additional Government Pleader (Pondy)
For R4 : Mr.S.Radha Gopalan
ORDER
This writ petition has been filed challenging the order passed
by the first respondent in G.O.Ms.No.118 Home (Transport III)
Department dated 18.02.2011, insofar as it relates to the inclusion of the
route of the fourth respondent viz., Pondicherry to Cuddalore viz
Reddichavadi found at Sl.No.24 in Annexure II to the supplementary
reciprocal agreement.
Facts of the case :
2. The petitioner is the stage carriage operator in Pondicherry.
He owned stage carriage bearing registration No.PY-01-V-7479 by
permit inter-State route Pondicherry to Cuddalore. It is covered by the
inter-State agreement arrived between the government of Puducherry and
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Tamil Nadu in the year 1985. The petitioner is a protected operator on the
inter-State route in terms of Tamil Nadu Act 41 of 1992 and Area
Approved Scheme published by the government of Tamil Nadu. The
fourth respondent herein obtained an inter-State permit in respect of route
Pondicherry to Cuddalore on transfer, from one Kaliamoorthy. The said
Kaliamoorthy was operating the said route from Pondicherry to
Cuddalore New Town Bus stand or Pondicherry to Kuruvinatham
Colony.
3. Originally, the said Kaliamoorthy was granted permit to ply
stage carriage on the route Pondicherry to Kannikoil. In the said route 3
kms distance from Kattupalayam to Reddichavadi situated in the State of
Tamil Nadu. Therefore, he submitted application for variation involving
extension of the route from Kannikoil to Kuruvinatham Colony via.,
Cuddalore New Town Bus stand. The State Transport Authority,
Pondicherry, granted the said variation under the impression that the
variation is only an intrastate route, as both the terminals of the route, lies
in Pondicherry and the portion of the route lying in Tamil Nadu is only
15.08 kms, as such no counter signature was necessary as contemplated
under Section 63(1) of the Old Act. It was challenged before the State
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Transport Appellate Tribunal, Pondicherry in Appeal Nos.180 & 162 of
1986. In the said appeals, the said Kaliamoorthy restricted the route up to
Cuddalore on the ground that part of the extended route from Maruthadu
to Kuruvinatham Colony was not motorable. Accordingly, the appeals
were partly allowed by an order dated 27.05.1987 and granted the
extension of the route restricting it upto Cuddalore.
4. Therefore, without obtaining counter signature from the
Tamil Nadu authorities and without paying tax to the Tamil Nadu
authorities, the predecessor of the fourth respondent cannot operate the
route upto Kuruvinatham Colony. Therefore, he made an application for
counter signature before the third respondent on 19.05.1987 and on
receipt of the same, the third respondent directed the applicant viz., the
predecessor of the fourth respondent, to produce the order of the State
Transport Authority, Pondicherry, copy of the permit, registration
certificate, fitness certificate and insurance certificate for making
necessary endorsement, by its communication dated 11.06.1987.
5. However, the said Kaliamoorthy approached the State
Transport Appellate Tribunal, Pondicherry, in I.A.No.767 of 1987 in
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Appeal Nos.162 & 180 of 1986 seeking the relief of permit him to
operate on the varied route as per the proceedings of the State Transport
Authority, Pondicherry dated 28.01.1986. Though the appeals were
already disposed of, the Appellate Tribunal had entertained the said
application and ordered as prayed for, in the application filed by the
predecessor of the fourth respondent, by an order dated 06.07.1987 and
order to maintain status quo. It was subsequently made absolute.
6. Thereafter, the said Kaliamoorthy made an application to
modify the variation granted by the State Transport Appellate Tribunal,
Pondicherry, and on receipt of the same, the State Transport Authority,
Pondicherry, by its communication dated 08.12.1987, directed him to get
counter signature from the Tamil Nadu Transport Authority for modified
route as the route is not covered by the inter-State agreement. However,
he made representation dated 07.05.1990 to the State Transport
Authority, Pondicherry, to make necessary entries in his permit so as to
get counter signature from the Tamil Nadu Transport Authorities.
However, it was returned by an order dated 07.06.1990, on the ground
that it could not carry out the variation entries in the permit unless the
State Transport Authority, Tamil Nadu grants concurrence to the
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variation as grated by the State Appellate Tribunal, Pondicherry. But
once again by an order dated 07.04.1993, the State Transport Authority,
Pondicherry, implemented the order of the Appellate Tribunal without
obtaining concurrence of the State Transport Authority, Tamil Nadu.
Accordingly, the said route become an inter-State route and he is liable to
pay tax to both States.
7. On the other hand, it was challenged before this Court in
W.P.No.8570 of 1993 and this Court by an order dated 22.06.1993
dismissed the writ petition. Aggrieved by the same, writ appeals were
filed in W.A.No.1107 of 1993 and W.A.No.173 of 1997 in respect of
demand of tax. While pending the writ appeals, the fourth respondent
stepped into the shoes of his predecessor and transferred the permit in his
favour. This Court by an order dated 19.09.1997, permitted the fourth
respondent to operate inter-State route on payment of tax to both States
and also permitted to operate till finalization of next inter-State
agreement. Accordingly, the third respondent by its proceedings dated
17.03.2004, accorded counter signature in favour of the fourth respondent
to operate inter-State route on payment of tax due to the State of Tamil
Nadu.
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8. Aggrieved by the counter signature granted in favour of the
fourth respondent, the petitioner challenged the same in W.P.Nos.10428
& 10358 of 2004 on the ground of lack of jurisdiction and it affects the
petitioner's interest as the entire sector from Pondicherry to Cuddalore
forms part of the petitioner's route in between his route to the distance of
24 kms. While pending the writ petition, the first and second respondents
included the route of the fourth respondent in the supplementary
agreement which is impugned in this writ petition and also published in
the government gezette in both States on 18.02.2011.
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Rival Contentions of Counsels :-
9. The learned counsel appearing for the petitioner submitted
that the route of the fourth respondent is included in the inter-State
agreement for extraneous consideration though the said counter signature
accorded by the third respondent is totally illegal and without jurisdiction
and it is hit by Tamil Nadu Act, 41 of 1992. Though the variation was
granted in the year 1987 as inter-State route by the State Appellate
Tribunal, but the same was counter signed by the third respondent only
on 17.03.2004 that too in pursuant to the order passed by this Court. The
reason for inclusion of private operators route in the inter-State
agreement is that a person from other States who obtained the grant of
permit or variation and counter signature from the third respondent on or
before, 30.06.1990 but not found in the principal agreement alone are
permitted to be included in the inter-State agreement, because the
government of Tamil Nadu brought a legislation to protect the existing
small bus operators who are operating on the approval scheme/notified
route and obtained those permits in between 04.06.1976 to 30.06.1990,
who are high by such approved scheme.
9.1. He further submitted that on or after 01.07.1990, the Act
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prohibits grant of any new permit on the notified route. Therefore though
the fourth respondent obtained counter signature on 17.03.2004, it is hit
by the Tamil Nadu Act 41 of 1992. Therefore, the first and second
respondents have no jurisdiction and erred in validating the order which
is nullity and non est in the eye of law by including in the supplementary
agreement. Further, the draft supplementary notification under Section
88(5) of the Motor Vehicles Act, 1988 (hereinafter referred to as “the MV
Act”) was published on 18.12.2009 fixing the date of hearing with
reference to the objections received by it on 25.01.2010. The hearing was
taken place on 25.01.2010 and the enquiry was conducted by the then
Home Secretary by named S.Malathi. Subsequently, she was transferred
from the Home Department and posted as Commissioner of Vigilance,
Administrative Reforms. After hearing the then Home Secretary reserved
the order. After her transfer, the order of final agreement was passed on
18.11.2010 by the present incumbent. It is a settled law that such an order
which is heard by one authority and passed order by another authority is
in gross violation of principle of natural justice and non-est in the eye of
law.
10. The third respondent filed counter and the learned
Government Advocate appearing for the respondents 1&3 submitted that
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the variation referred to by the petitioner has not been included and does
not find place in the inter-State agreement between Tamil Nadu and
Puducherry in G.O.Ms.No.118 Home Department dated 18.02.2011. The
third respondent could not grant concurrence for the counter signature of
permit for the varied route. However, the original route has been included
in the supplemental reciprocal agreement between the State of Tamil
Nadu and Puducherry.
10.1. The first draft supplemental agreement was notified in
G.O.Ms.No.1079, Home department dated 18.12.2009 as required under
Section 88(5) of the MV Act. After publication of notification, issued
notice to submit representations, objections and suggestion, if any before
the first respondent and also to conduct enquiry. The petitioner also
submitted objections. Accordingly, the enquiry was conducted on
25.01.2010 in which many stage carriage operators/representatives and
other members of the public attended the hearing and raised objections.
Finally, the first respondent passed order on 18.02.2011 in
G.O.Ms.No.118, Home Department for publication of the final
supplemental reciprocal agreement between the State of Tamil Nadu and
Puducherry under sub Section (6) of Section 88 of the MV Act.
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11. The fourth respondent filed counter and the learned counsel
appearing for the fourth respondent submitted that the petitioner cannot
challenge the inclusion of a route in the inter-State agreement since the
petitioner has no locus standi to object the same and he cannot be
regarded as a person aggrieved. The two State governments are involved
and entered into the inter-State agreement. Therefore, the operator cannot
challenge the inclusion of a route for the reason that inclusion or non-
inclusion is an essential matter to be considered between the two
governments on the principles of reciprocity and other factors. Therefore,
the existing operator cannot have any say that the particular route could
not include in the inter-State agreement or question the principles on
which the route is included or not. The consequence of inclusion of a
route in inter-State agreement is automatic grant of countersignature of
permit and exemption from payment of double tax i.e., to countersigning
State.
11.1. She further submitted that in fact, though no hearing is
statutorily provided for entering into a final agreement, the operators are
heard in connection with the draft reciprocal agreement and ultimately it
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is the order of the government and therefore the government is entering
into an agreement under Section 88(5) of the MV Act. Further, the
existing operators cannot take up overlapping in a scheme route to
persons or inter-State operator. They are getting permit or
countersignature when the route as such is covered in the inter-State
agreement. Further it is public interest that matters and it is not vexatious
personal interest of rival operators, which tantamount to the principle that
governs the administration of MV Act viz., public interest alone.
11.2. Therefore, once the route is included in the inter-State
agreement, it protects that said route and permit from saving clauses in
nationalization schemes. She further submitted that a batch of writ
petitions were filed challenging the inter-State agreement entered
between the Union Territory of Puducherry and the State of Tamil Nadu.
This Court by an order dated 26.11.2019 dismissed all the writ petitions
with directions to seek consideration for inclusion of their route in any
subsequent inter-State agreement that may be conceived or entered into
by and between the governments. Aggrieved by the same writ appeals
were filed in W.A.No.335 of 2020 etc., batch and the same was also
dismissed by confirming the order passed by the learned Single Judge, by
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an order dated 08.07.2020. In fact, the fourth respondent herein is one of
the party in W.P.Nos.9094 & 9095 of 2011. Therefore, the writ petition
itself is not maintained and liable to be dismissed.
12. Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
Discussions:
13. This Court already dismissed a batch of writ petitions in
W.P.No.26278 of 2007 etc., batch, by an order dated 27.11.2019
including the present writ petition. However, liberty was granted to all the
petitioners to seek consideration for issuance of stage transport carriage
permit or any other permit as permitted by law in any other subsequent
inter-State agreement that may be conceived or entered into by and
between the governments. Subsequently, insofar as the present writ
petition is concerned, the order was recalled and delinked the present writ
petition by an order dated 03.12.2019.
14. Further, the petitioner already challenged the grant of
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countersignature in favour of the fourth respondent in W.P.Nos.10428
and 13058 of 2004. While pending the writ petitions, the inter-State
agreement was entered between the State of Tamil Nadu and Puducherry
in G.O.Ms.No.118 Home Department dated 18.02.2011, thereby
extended the route and included in the inter-State agreement and the
fourth respondent is permitted to operate the buses on the extended
between Puducherry to Cuddalore viz Kannikoil. Therefore, the above
writ petitions were dismissed as infractuous with liberty to challenge the
inclusion of the said extention of route of the fourth respondent in the
inter-State agreement between the government of Tamil Nadu and
Puducherry by a separate proceedings.
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15. Though the said order was challenged in W.A.No.2009 of
2012, the Hon'ble Division Bench of this Court by an order dated
08.10.2014 recorded that already the petitioner filed this present writ
petition (writ petition number wrongly mentioned as W.P.No.9091 of
2011 instead of W.P.No.9093 of 2011) and disposed the appeal with
liberty to raise all grounds legal contention in the present writ petition.
Therefore, this writ petition is very much maintainable.
Validation of permit :-
16. The petitioner is a stage carriage operator in the Union
Territory of Puducherry, operating his stage carriage on the inter-State
route Puducherry and Cuddalore. This route is covered by an inter-State
agreement between the Government of Puducherry and Tamil Nadu in
the year 1985 and the said agreement was also published in Puducherry
government gazette dated 19.04.1985. The fourth respondent is the
transferee of the permit from one Kaliamoorthy, who was earlier
operating on the route Puducherry to Kannikoil. In the said route a
distance of 3 kms from Kattupalayam to Reddichavadi though lies in
Tamil Nadu, the counter signature from the neighbouring State is
dispensed with as required under Section 88(1) of the MV Act. It is
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relevant to extract the provisions under Section 88(1) of the MV Act as
follows :-
“88.Validation of permits for use outside region in
which granted-Except as may be otherwise prescribed, a
permit granted by the Regional Transport Authority of any
one region shall not be valid in any other region, unless
the permit has been countersigned by the Regional
Transport Authority of that other region and a permit
granted in any one State shall not be valid in any other
State unless countersigned by the State Transport
Authority of that other State or by the Regional Transport
Authority concerned;
Provided further that where both the starting point
and the terminal point of a route are situate within the
same State, but part of such route lies in any other State
and the length of such part does not exceed sixteen
kilometres, the permit shall be valid in the other State in
respect of that part of the route which is in that other
State"
17. While being so, the original permit holder made an
application for variation, involving extension of the route from Kannikoil
to Kuruvinatham Colony via Cuddalore. The State Transport Authority,
Puducherry, granted permission for variation by the proceedings dated
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28.01.1986 under the impression that both the terminus of the route lies
in the Union Territory of Puducherry and only a distance of 15.8 kms lies
in Tamil Nadu territory, it does not attract the second proviso to Section
88(1) of the MV Act. It was challenged before the State Transport
Appellate Tribunal, Pondicherry, in Appeal Nos.162 & 180 of 1986.
However, while pendency of those appeals, the original permit holder
filed a memo stating that he is not pressing his application seeking
extension from Cuddalore to Kuruvinatham Colony and restricted upto
Cuddalore. Accordingly, the appeals were allowed and restricted the
extension up to Cuddalore by an order dated 27.05.1987. Therefore, it
requires the counter signature from the State of Tamil Nadu in terms of
Section 88(1) of the MV Act.
18. Accordingly, the original permit holder filed application for
want of counter signature on 18.05.1987. In the said application, the
original permit holder directed to produce the proceedings granting
extension upto Cuddalore. The State Transport Authority, Puducherry, by
its proceedings dated 07.04.1993, implemented the order passed by the
Appellate Tribunal and granted variation as Pondicherry to Cuddalore
though the Tamil Nadu State Transport Authority did not give
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concurrence. However, the original permit holder apprehended that he
might be demanded tax by the State Transport Authority of Tamil Nadu,
challenged the said order dated 07.04.1993 in W.P.No. 5870 of 1993 and
the same was dismissed by this Court.
19. Aggrieved by the same, the original permit holder filed
appeals in W.A.Nos.1107 of 1993 and 173 of 1997. During the pendency
of the writ appeals, the fourth respondent stepped into the shoes of the
original permit holder. Based on the directions issued in the writ appeals,
the Tamil Nadu State Transport Authorities granted counter signature,
enabling the fourth respondent to operate on the inter-State route viz.,
Puducherry to Cuddalore by the proceedings dated 17.03.2004. As stated
supra, it was challenged by the petitioner in W.P.Nos.10428 & 13058 of
2004. While pending the writ petition, the variation route of the fourth
respondent was included in the inter-State agreement dated 18.02.2011.
Therefore, this Court by an order dated 10.04.2012, dismissed the writ
petition in W.P.Nos.10428 & 13058 of 2004, with liberty to challenge the
agreement insofar as its inclusion of the route of the fourth respondent.
20. The learned counsel appearing for the petitioner mainly
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raised the following contention :-
(i) The fourth respondent is not a saved operator under the
modified Area Approved Scheme dated 17.11.1999, the inclusion of the
route of the petitioner in the Inter-State Agreement is illegal, as the Inter-
State Agreement cannot over ride the Area Approved Scheme, approved
under Section 100 of the Motor Vehicles Act, 1988.
(ii) The direction issued by this Court to grant counter signature
on the Area Approved Scheme runs against Section 104 of Chapter VI
and section 88(5) and 88(6) of the Motor Vehicles Act which deals with
the Inter-State Agreement.
(iii) Once the route/area is nationalized under Chapter VI of the
Act, no permit shall be granted either by way of fresh permit or variation,
as law propounded by the Hon'ble Supreme Court in catena of decisions
and therefore the direction issued by this Court to grant counter signature
in favour of the fourth respondent on the Area Approved Scheme is
without jurisdiction.
(iv) The direction issued by the Hon'ble Division Bench to grant
counter signastusre is hit by the Inter-State Agreement dated 19.04.1985
under which only two vehicles are permitted with 38 singles on the route
Puducherry to Cuddalore.
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(v) The draft Inter-State Agreement was published under Section
88(5) of the MV Act was heard by one Authority and the order,
approving the same was passed by another Authority and therefore the
same is hit by the principles of natural justice.
Inter-State agreement & overriding effect:-
21. The route in question overlaps on the area approved scheme
in respect of Cuddalore district that was published on 17.11.1999, which
is modified Area Approved Scheme. Accordingly, the State transport
undertakings of other States, the private operators of Tamil Nadu whose
permits are protected by Tamil Nadu Act 41 of 1992 and the permit of the
stage carriage operators on the inter-State route whose routes are covered
by the inter-State agreement on that date were permitted to operate. The
saving clause saves those inter-State operators who are already granted
with the permit and covered by the inter-State agreement and operating
on that date. It does not permit any future operator to be covered by the
inter-State agreement. Further when there is conflict in between the
approved scheme published under Section 68D of the old Act, which is
corresponding to Section 100 of the present Act and inter-State
agreement published under Section 88(16) of the Act, which occurs
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Chapter V of the Act, the approved scheme prevails over the inter-State
agreement and therefore the inter-State agreement is contrary to the terms
of the approved scheme.
22. In order to substantiate this contention, the learned counsel
appearing for the petitioner relied upon the judgment of the Hon'ble
Supreme Court of India reported in 2016 (8) SCC 402 in the case of
G.T.Venkataswamy Reddy vs. State Transport Authority as follows :-
"51.11. Even if there is an inter-State agreement
under Section 63 of the Act for increasing the number of
trips, such an agreement cannot override the provisions
of Chapter IV-A by virtue of Section 68-B of the Act.
Section 63 being in Chapter IV of the Act, the Scheme
approved under Chapter IV-A will prevail over it.”
23. Even before the above Constitution Bench judgment, a case
identical to the present case was arose before the Hon'ble Supreme Court
of India reported in 1970 (1) SCC 541 in the case of T.N.R. Reddy Vs.
M.S. Trans. Authority, wherein the Hon'ble Court held as follows:
"16. Regarding the third point we were unable to
appreciate how an inter-State agreement overrides the
provisions of Chapter IV-A. The inter-State agreement is not
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law and to hold that an inter-State agreement overrides
Chapter IV-A would be to completely disregard the
provisions of Section 68-B of the Act which provides that
"the provisions of this Chapter and the rules and orders
made thereunder shall have effect notwithstanding anything
inconsistent therewith contained in Chapter IV of this Act or
in any other law for the time being in force or in any
instrument having effect by virtue of any such law". In this
connection reference was made to Article 162 and Article
298 of the Constitution. But we were unable to appreciate
what relevance these articles have to the point at issue.
Assuming that a State has power to enter into agreement
with another State in exercise of its executive powers under
Artgicle 162 and under Article 298 it can carry on trade or
business, we are unable to see what light these facts throw
on the question before us."
24. This judgment was later followed by the Hon'ble Supreme
Court of India in a subsequent judgment reported in (1973) 1 SCC 357 in
the case of S. Abdul Khader Vs. Mysore Revenue Appellate Tribunal, as
follows:
"6. The next point on which a great deal of
emphasis has been laid on behalf of the appellant is that
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an inter-state route comes into existence by virtue of an
agreement between the States through which the route
passes. The main provisions in that respect are to be
found in Section 63 of the Act. Any scheme of
nationalisation of a route by a State, as approved under
Section 68-D cannot override the inter-state agreements
in respect of the inter-state routes. This Court has in T.N.
Raghunatha Reddy v. Mysore State Transport Authority
(1970) 1 SCC 541 answered this question in the negative.
It has been held that the inter-state agreement is not law
and to hold that an inter-state agreement overrides
Chapter IV-A would be to completely disregard the
provisions of Section 68-B of the Act. In other words, a
scheme of nationalisation approved under Section 69-D
would prevail over an inter-state agreement in respect of
an inter-state route."
25. A similar view is echoed by the Hon'ble Supreme Court in
the judgment reported in AIR 1990 SC 412 in the case of R. Raghuram
Vs. P.Jayarama Naidu, as follows:
"5. Even if there is an inter-State agreement under
Section 63 of the Act for increasing the number of trips,
such an agreement cannot override the provisions of
Chapter IV-A by virtue of Section 68-B of the Act. Section
63 being in the Chapter IV of the Act the scheme
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approved under Chapter IV-A prevails over it."
26. Therefore, the Scheme being a law, having overriding effect
by virtue of Section 98 of the Motor Vehicles Act, it prevails over not
only the inter-State agreement but also other laws which are in force
which are inconsistent with other law. Therefore, inclusion of the route of
the fourth respondent in the inter-State agreement is without authority of
law, as his route is not saved under the area approved scheme. Therefore,
when there is an approved scheme, unless the approved scheme permits,
no permit shall be granted contrary to the terms of the approved schemes
and also no such permit can be granted either by way of variation,
including additional singles, as law laid down by the Hon'ble Supreme
Court of India.
27. The inter-State agreement is contemplated under Section
88(5) and 88(6) of the MV Act. Section 88(5) of the MV Act
contemplates draft agreement and Section 88(6) of the MV Act
contemplates final agreement. Initially when both the governments
agreed to reach an inter-State agreement, such proposal is published in
the government gazette of both governments, inviting objections and
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fixing the date of hearing. Section 88(6) of the MV Act contemplates
after receipt of the objections, hearing of the same. Before arriving at any
inter-State agreement in the manner referred to above or if there is an
agreement which contemplates number of vehicles and number of singles
to be operated, the State transport authority cannot grant any permit or
entertaining any application for the grant of permit in the inter-State route
in the absence of an inter-State agreement and even if there is an inter-
State agreement, above the number of vehicles and number of singles
prescribed therein.
28. In this regard, the learned counsel appearing for the
petitioner submitted that these two provisions are the subject matter of
interpretation before the Hon'ble Supreme Court of India reported in
(1999) 8 SCC 364 in the case of Ashwani Kumar Vs. Regional
Transport Authority, in which the Hon'ble Supreme Court of India held
as follows:
"6... Inter-State route under the scheme of the Acts
has to be reciprocal and cannot be unilaterally created
by one State or an authority in the State. The State
Governments concerned are supposed to deliberate and
decide the routes to be opened as inter-State routes by
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determining the number of trips each route was to have
and prescribe other conditions for the smooth functioning
of the Act to achieve its objective which is claimed to be a
social welfare legislation.
7..In the absence of the existence of an inter-State
route, the authorities under the Act were not justified in
granting the permits to the appellants. The existence of
permits depends upon the reciprocal agreements between
the States covered by the route which admittedly did not
exist in the instant case. The orders of the authority
granting permit in favour of the appellants were thus
without jurisdiction."
29. An inter-State route under the Scheme of the Act has to be
on reciprocal and cannot be unilaterally created by one State or Authority
in the State. This principle was approved by a three Judge Bench of the
Hon'ble Supreme Court in the decision reported in (2004) 11 SCC 207 in
the case of A. Venkatakrishnan Vs. State Transport Authority, Kerala
which reads as follows:
"Therefore, before an inter-State route in respect
whereof a permit is sought to be granted is determined,
the question of filing any application therefor by a person
before the State Transport Authority of his State would
not arise unless an agreement in relation thereto has
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been entered into by the States concerned and the routes
as also the number of trips are fixed thereunder. We are,
therefore, of the opinion that the State Transport
Authority of one State would have no jurisdiction to
entertain an application for grant of an inter-State route,
particularly when Section 80 of the Act will have no
application in relation thereof unless an agreement is
entered into by the State concerned."
30. Thus it is clear that no inter-State permit can be granted
unless there is an inter-State agreement in respect of the route or if there
is an inter-State agreement, no additional vehicles or additional singles
can be granted above the maximum specified therein. Therefore, the
inclusion of variation route of the fourth respondent in the inter-State
agreement is bad in law and it is clear violation of the provisions of
Sections 88(5) and 88(6) of the MV Act.
Violation of principles of natural justice:
31. Insofar as the violation of principles of natural justice is
concerned, the objections for the draft inter-State agreement was heard by
the then Principal Secretary to Government, Home Department dated
21.05.2010. Thereafter, the said Principal Secretary was transferred and
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another person was appointed as new Home Secretary. The new Secretary
passed an order thereby approved the draft agreement. In this regard, the
learned counsel appearing for the petitioner relied upon the judgment of
the Madurai Bench of this Court in W.P.(MD).No.2893 of 2011 dated
18.04.2018 in the case of P.T.Mahalingam Vs. Government of Tamil
Nadu, which reads as follows:-
"17. The predominant contention of the writ petition is
that the authority who heard the matter shall pass orders. One
person hears and other person passes an order is violative of
principles of natural justice. The Hon'ble Supreme Court in
the case of GULLAPALLI NAGESWARA RAO VS. A.P. STATE
ROAD TRANSPORT CORPORATION reported in 1959 Supp
(1) SCR 319 at paragraph No.31 observed as under:
The second objection is that while the act and the Rules
framed thereunder impose a duty on the State Government to
give a personal hearing, the procedure prescribed by the Rules
impose a duty on the Secretary to hear land the Chief Minister
to decide. This divided responsibility is destructive of the
concept of judicial hearing. Such a procedure defeats the
object of personal hearing. Personal hearing enables the
authority concerned to watch the demeanour of the witnesses
and clear up his doubts during the course of the arguments
and the party appearing to persuade the authority by reasoned
argument to accept his point of view. If one person hears and
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another decides, then personal hearing becomes an empty
formality. We therefore hold that the said procedure followed
in this case also offends another basic principle of judicial
procedure.
18. The Hon'ble Supreme Court in the case of RASID
JABED AND OTHERS V. STATE OF UTTAR PRADESH
reported in (2010) 7 SCC 781 at paragraph No.51 observed as
under:
"That a person who hears must decide and that divided
responsibility is destructive of the concept of judicial hearing
is too fundamental a proposition to be doubted. This settled
principle has also been highlighted by this Court in
GULLAPALLI NAGESWARA RAO but based on such
principle the limited authority of hearing given to the hearing
Authority by the State Government cannot be treated as
enlarged in its scope. A delegate must confine his activity
within four corners of the powers invested in him and if he has
acted beyond that, his action cannot have any legal sanction
unless ratified by the delegator."
Therefore, it is clear case of violation of principals of natural justice and
the order impugned in this writ petition cannot be sustained, insofar as it
relates to variation route of the fourth respondent.
32. It is also seen that the petitioner, from the beginning,
objected the variation route of the fourth respondent. The batch of writ
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petitions were filed challenging the government order in G.O.Ms.No.118
Home (Tra -III) Department dated 18.02.2011, on the ground of non-
inclusion of their variation route. Whereas, the petitioner filed the present
writ petition challenging the inter-State agreement in G.O.Ms.No.118
Home (Tra -III) department dated 18.02.2011, insofar as it relates to
inclusion of variation route of the fourth respondent, entered into the
supplemental agreement. Therefore, the issue in this present writ petition
is completely different from other writ petitions, which were dismissed
by this Court by an order dated 27.11.2019. Therefore, this Court by an
order dated 03.12.2019, recalled the order passed in this writ petition and
delinked from the batch of writ petitions, on the ground that there are
variation in facts between this writ petition and other writ petitions in that
batch.
Conclusion :
33. In view of the above discussions, the inclusion of the fourth
respondent's route in the inter-State agreement is illegal and without
jurisdiction. Accordingly, the government order in G.O.Ms.No.118 Home
(Transport III) dated 18.02.2011 is hereby quashed so far as it pertains to
the inclusion of the route of the fourth respondent namely Pondicherry to
Cuddaore via Reddichavadi found at Sl.No.24 in Annexure II to the
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Supplementary Reciprocal agreement.
34. Accordingly, the Writ Petition stands allowed.
Consequently, connected miscellaneous petitions are closed. There shall
be no order as to costs.
03.10.2024
Index : Yes/No
Speaking/Non Speaking order
Neutral Citation : Yes/No
rts
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G.K.ILANTHIRAIYAN. J,
rts
To
1. The Secretary,
State of Tamil Nadu,
Home (Transport) Department,
Fort St. George,
Chennai – 600 009.
2. The Secretary
Union Territory of Pondicherry,
Home (Transport) Department,
Puducherry.
3. The State Transport Authority,
Chepauk,
Chennai – 5.
ORDER IN
and M.P.Nos.1 & 2 of 2011
03.10.2024
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