Ashoka Transport Company vs The Regional Transport Authority
2022 Latest Caselaw 7004 Raj/2

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                                                                          [CW-10598/2022]


      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 10598/2022

Ashoka Transport Company, Through Proprietor Gaurav Sherawat
S/o Shri Jaisingh, Aged About 34 Years, R/o 203, Uprahi Mohalla,
Near Bhaiya Chowk, Mahipalpur, Delhi South West-110037.
                                                                          ----Petitioner
                                         Versus
The Regional Transport Authority, Alwar Region, Alwar.
                                                                        ----Respondent

For Petitioner(s) : Shri Bharat Vyas, Sr. Advocate with) Shri Satish Kumar Khandelwal For Respondent(s) : Shri M.S. Singhvi, Advocate General with Shri Darsh Pareek) Shri Ganesh Parihar, AAG with Shri Sameer Sharma)

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

04/11/2022

This writ petition has been filed for quashing the order

dated 11.7.2022 passed by the learned State Transport

Appellate Tribunal, Jaipur (for brevity-`the STAT') whereby,

the Appeal No.4/2022 preferred by the petitioner against the

order dated 13.6.2022 passed by the Regional Transport

Officer, Alwar, declining request of the petitioner to

countersign the permit No.IS/Alwar/2 route Delhi to Alwar, has

been dismissed.

The necessary facts leading to the present writ petition

are that the petitioner is a Transport Operator and was issued

a permit No.IS/Alwar/2 route Delhi to Alwar via Haryana

initially in the year 1944 which was renewed from time to time

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and was countersigned by the Transport Department,

Government of Rajasthan, valid till 8.12.2008. An agreement

entered amongst the States of Rajasthan, Haryana, Uttar

Pradesh and Delhi NCR and published under Section 88(5) of

the Motor Vehicles Act, 1988 (for brevity-`the Act of 1988')

vide Rajasthan gazette notification dated 1.12.2021, provided

for countersignature by the State of Rajasthan on two permits

for the Stage Carriage Buses issued by the Delhi NCR on the

Delhi-Alwar via Haryana route. The subject permit issued to

the petitioner was validated from 12.12.2018 to 11.12.2023

by the Government of NCT, Delhi which was requested by the

petitioner to be countersigned by the State of Rajasthan under

its obligation as per the gazette notification dated 1.12.2021;

but, the respondent, vide its letter dated 31.1.2022, refused

to countersign the same on the premise that it was issued

prior to publication of gazette notification dated 1.12.2021.

The refusal was despite recommendation of the Transport

Authority, Delhi to countersign the permit till its validity as

also the letter dated 25.4.2022 issued by the Secretary

(STA)/Special Commissioner, Government of NCT of Delhi

stating therein that the subject permit may be treated as

issued from the date of dispatch of the letter, i.e., after

issuance of the gazette notification. An appeal preferred

thereagainst by the petitioner has been dismissed by the

learned STAT vide its judgement dated 11.7.2022, subject

matter of challenge. Relying upon the Note appended to

Annexure "B" (B1), it is claimed that the permit issued by the

State of Delhi prior to publication of the gazette notification

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was to be treated as valid permit for the purpose of

countersignature. It is, therefore, prayed in the writ petition

that the judgement dated 11.7.2022 be quashed and set aside

and the respondents may be directed to countersign the

permit issued by the Government of NCT in petitioner's favour.

The respondents have, in their reply, stated that since

there exists no clause in the agreement dated 31.8.2021

published in the State gazette on 1.12.2021 which was

executed superseding all the previous agreements, to consider

the permit issued earlier as part of the agreement, the subject

permit issued to the petitioner valid for the period from

12.12.2018 dated 11.12.2023, was not countersigned. It is

further stated that the subject permit is issued for the route

Delhi to Alwar under Annexure-A1 of the agreement which is

not suffixed with a note that a permit issued prior to the

agreement will be its part and hence, they have rightly

refused to countersign the same. It is, therefore, prayed that

the writ petition be dismissed.

The respondents in their additional affidavit dated

3.8.2022 filed through Shri Kanhaiya Lal Swami, the

Commissioner, Transport and Road Safety Department,

Government of Rajasthan, stated that the agreement amongst

the States of Delhi and Rajasthan, Delhi and Uttar Pradesh,

Delhi and Haryana, Rajasthan and Uttar Pradesh, Rajasthan

and Haryana and Uttar Pradesh and Haryana is as per

Annexures A to F of the said agreement and each Annexure is

applicable qua the respective two States mentioned in the

agreement for the route or its portion. As per Annexure-A of

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the earlier transport agreement of the year 2010 executed

amongst the Governments of Delhi, Haryana, Rajasthan and

Uttar Pradesh, route Delhi to Alwar via Haryana did not exist

for the Private Stage Carriage Buses. It is further averred that

after inclusion of the Delhi to Alwar via Haryana route under

Annexure-A1 in the gazette notification dated 1.12.2021, a

permit issued by the Delhi State after publication of the

gazette notification can be countersigned by the State of

Rajasthan for plying of the private carriage buses on the said

route.

In their additional affidavit dated 26.8.2022 filed through

Shri Kanhaiya Lal Swami, the respondents have stated that as

per Annexure-B1 of the agreement-2021, the permit issued by

the Delhi and Haryana for plying private Stage Carriage Buses

are valid for these two States only namely; Delhi and

Haryana.

Shri Kanhaiya Lal Swami, in his additional affidavit dated

26.8.2022 stated that the petitioner had filed a writ petition

no.9598/2017 before the Hon'ble Delhi High Court seeking a

direction for the Regional Transport Authority, Alwar, Rajasthan

to countersign the subject permit no.IS/Alwar-2 which came

to be withdrawn by it on 25.10.2021 without any order in its

favour.

Thereafter, the respondents filed an additional affidavit

through Ms. Rani Jain, the Regional Transport Officer, Alwar

wherein, she stated that an agreement was entered into

between the Government of Rajasthan and Government of

Delhi-NCT on 20.6.2001 which was notified in Rajasthan

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gazette on 3.4.2002 wherein, the route in question, i.e.,

Alwar-Delhi via Nagaon-Sona contemplated the grant of

permit only to the State Transport Undertaking and the

existing permits which were issued earlier in favour of the

private operators were agreed to be continued only till the

period for which the same were granted. It is averred that in

pursuance thereof, the subject permit of the petitioner was not

liable to be renewed by the Government of Delhi-NCT and

consequently, was not liable to be countersigned by the

Transport Authorities, Rajasthan; however, it appears that on

account of inadvertence and ignorance of the condition

no.4(vii) of the agreement dated 20.6.2001, the permit

granted by the Delhi-NCT for Alwar-Delhi route came to be

countersigned by the Regional Transport Authority, Alwar vide

order dated 17.4.2004 which refers the agreement of the year

1985 instead of the agreement of 2001. It is stated that under

the notification dated 22.7.2010, no permit was countersigned

by the State of Rajasthan for the private Stage Carriage Buses

for the Delhi-Alwar route under Annexure-B1. It is further

stated that the petitioner had submitted applications on

14.2.2012 and on 25.2.2014 for countersignature of the

permit issued to it by the Delhi-NCT which was declined as no

such provision existed in the agreement-2010.

The respondents have in their reply-affidavit, stated that

it has filed the S.B. Civil Writ Petition No.6718/2007 against

refusal to operate the bus from authorized bus stand in the

State of Rajasthan which was disposed of by this Court vide

judgement dated 11.9.2007 whereby, the petitioner was

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permitted to file a representation to the State Government

which was to be decided within a period of one month and till

decision, the petitioner was allowed to ply its vehicles from the

bus stand maintained by the Transport Department, Alwar

being used by the RSRTC. It is, therefore, averred that the

petitioner, as a grantee of the Government of Delhi-NCR, was

plying its buses on the strength of a valid permit from Delhi to

Alwar in three States namely; Delhi, Haryana and Rajasthan.

With regard to the agreement dated 3.4.2002, it is averred

that it is an agreement between State of Rajasthan and NCT-

Delhi and not amongst the State of Rajasthan, Haryana and

NCT-Delhi and, therefore, the earlier agreements entered

amongst these States were not superseded or rescinded by it.

It is further stated that in the agreement-2021, the subject

route finds place in Annexure-A1 as also in Annexure-B1 and

the saving clause provided in the note appended with the

routes mentioned at Annexure-A1 and Annexure-B1 says that

the valid permits granted earlier by both the States on which

buses of the private operators are being operated as on the

date, have been considered to be a part of this agreement for

future operation. It is averred that since its permit was

renewed by the STA, Delhi from 12.12.2018 to 11.12.2023, it

is a validly granted permit since grant of renewal is also a

grant of permit.

Learned senior counsel for the petitioner Shri Bharat

Vyas, reiterating the averments made in the writ petition and

reply-affidavit, submitted that the subject permit for the route

Delhi-Alwar via Haryana is operative since 1944 and has been

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countersigned by the Rajasthan State from time to time as per

its obligation under the inter-State agreement. He submitted

that the note appended with Annexure-B1 of the gazette

notification dated 1.12.2021 has to be read as note appended

to Annexure-A1 also inasmuch as while, the first part of

Annexure-A deals with the State Transport Undertaking, the

State Transport Undertaking for the States of Delhi and

Haryana are referred to in Part-II of Annexure-B and the

routes for private Stage Carriage Buses for the Delhi and

Rajasthan vis-à-vis Delhi and Haryana have been kept

together. Relying upon Note-I to Annexure-B1, learned senior

counsel would submit that the valid permits granted earlier

shall have to be considered to be part of the agreement for

future operation and, thus the respondents were under an

obligation to countersign the same. Refuting the contention of

the State that the Alwar-Delhi route via Haryana for private

bus operators is a new route provided for the first time vide

gazette notification dated 1.12.2021, the learned senior

counsel, inviting attention of this Court towards the order

dated 11.9.2007 passed by this Court in S.B. Civil Writ Petition

No.6718/2007, submits that it was operating its bus on the

same route previously also. He, in this regard, also referred to

clause-4(vii) of the notification dated 18.2.2002 published in

the Delhi gazette which provided that private permit holders

would be entitled to continue the services of the National

roads reserved for Stage Carriage till the validity of permit.

He, therefore, prayed that the writ petition be allowed, the

order dated 11.7.2022 passed by the learned STAT be

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quashed and set aside and the respondents be directed to

countersign the subject permit.

Per contra, learned Advocate General Shri M.S. Singhvi,

reiterating the averments made in the reply and in the

additional affidavits, inviting attention of this Court towards

the provisions of Reciprocal Common Transport Agreement

amongst the Governments of Delhi, Haryana, Rajasthan and

Uttar Pradesh published in the Rajasthan gazette on

22.7.2010, would submit that the Delhi-Alwar route via

Haryana was provided for the State Transport Undertaking

only under the agreement in between Delhi and Rajasthan and

this route for the private Stage Carriage Buses was provided

only under the agreement in between Delhi and Haryana

which was not countersigned by the Rajasthan State. He

submits that the subject route for the private Stage Carriage

Buses has been provided for the first time under the

agreement published vide Rajasthan gazette dated 1.12.2021.

Disputing and denying the submission made by the learned

senior counsel for the petitioner that note under Schedule B1,

part of Annexure-B, has to be read as part of Annexure-A1

also since Annexure-A1 and Annexure-B1 both providing for

the list of routes and number of permits for the private Stage

Carriage Buses, have been put together, the learned AG

submits that it is based on misconstruction and

misinterpretation of the provisions of the notification. Inviting

attention of this Court towards various Annexures, part of

gazette notification dated 1.12.2021, he submits that each

and every Annexure has its own note(s) and the note(s) under

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one Annexure cannot be read as note to any other Annexure.

He submits that the judgement of learned STAT dated

11.7.2022 is well reasoned one based on material on record

and does not warrant any interference by this Court under its

limited supervisory jurisdiction vide Article 227 of the

Constitution of India. He, therefore, prays for dismissal of the

writ petition.

Heard. Considered.

To appreciate the controversy involved in the matter, this

Court would first like to refer the statutory scheme for grant of

Stage Carriage permits and its countersignature under the Act

of 1988.

Section 2(31) of the Act defines "permit"-means a permit

issued by a State or Regional Transport Authority or an

Authority prescribed in this behalf under this Act authorising

use of a motor vehicle as a transport vehicle.

Its sub-section (40) provides that "State Carriage"

means a motor vehicle constructed or adapted to carry more

than six passengers excluding the driver for hire or reward at

separate fares paid by or for individual passengers, either for

the whole journey or for stages of the journey.

Section 66 provides that no owner of a motor vehicle

shall use or permit the use of the vehicle as a transport

vehicle in any public place whether or not such vehicle is

actually carrying any passenger or any goods save in

accordance with the conditions of a permit granted or

countersigned by a Regional or State Transport Authority.

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Section 72 provides for grant of Stage Carriage permit by

the Regional Transport Authority.

Section 81 of the Act of 1988 lays down that a permit

other than a temporary permit issued under Section 87 or a

special permit issued under sub-section (8) of Section 88 shall

be effective from the date of issuance or renewal thereof for a

period of five years. Its proviso lays down that where the

permit is countersigned under sub-section (1) of Section 88,

the countersignature shall remain effective without renewal for

such period so as to synchronise with the validity of the

primary permit. Its sub-section (5) provides that where a

permit has been renewed under this Section after the expiry of

the period thereof, such renewal shall have effect from the

date of such expiry.

Section 86 provides for cancellation and suspension of

permits under certain contingencies.

Section 88 of the Act of 1988 lays down the scheme for

validation of permits for use outside region in which granted.

It provides that 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. Its sub-clause (4) provides

that provisions of this Chapter relating to the grant, revocation

and suspension of permits shall apply to the grant, revocation

and suspension of countersignature of permits; provided that

it shall not be necessary to follow the procedure laid down in

Section 80 for grant of countersignature of permits, where the

permits granted in any one State are required to be

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countersigned by the State Transport Authority of another

State or by the Regional Transport Authority concerned as a

result of any agreement arrived at between the States after

complying with the requirements of sub-section (5).

Analysing the provisions of Section 88 of the Act, their

Lordships of the Hon'ble Supreme Court authoritatively held in

case of A. Venkatakrishnan vs. State Transport

Authority, Kerala-(2004) 11 SCC 207, as under:

"12. Furthermore, the definition of "route", as contained in Section 2(38) of the Act means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another. 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 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.

13. A purposive and meaningful construction, it is trite, must be given to a statute, so that it is made workable. A statute should not be construed in such a manner, which would create a vacuum. In the absence of any route being fixed in terms of an agreement, in the event it be held that an application for grant of

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permit for inter-State route can be entertained, the same would lead to a futile exercise. A mutual approval of the States concerned, in the matter, therefore, must be held to be mandatory. In other words, the proviso, appended to sub-section (4) of Section 88 of the Act, must be read conjointly with sub-sections (5) and (6) of Section 88 thereof and, consequently, it must be held that by necessary implication agreements are contemplated for creation of inter-State routes."

A coordinate bench of this Court has also, in the case of

Rajasthan State Road Transport Corporation Ltd., Jaipur

vs. R.T.A., Bikaner & Ors.,-AIR 1996 Rajasthan 11, held

as under:

"10. In the light of the above, the legal position which emerges is that under the provisions of the Motor Vehicles Act, 1988, it is the prerogative of the two or more concerned States only to open, establish and create an inter-State route lying in their respective jurisdiction by entering into a reciprocal transport agreement and to get it finalized by following the procedure prescribed under Sub-sections (5) and (6) of Section 88 of the Act of 1988. In the instant case undisputedly there exists no such agreement amongst the concerned States. More so, this route does not exist prior to the passing of the impugned order and it was for the first time that the route Sangaria-Delhi has been opened by the RTA. Therefore, in the absence of any specific provision in this regard empowering RTA to open the inter-State route without following procedure that too when there was neither any agreement to this effect nor there existed such route, in my view, the contention of the counsel for

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the petitioner that the RTA has committed illegality, has some substance which find support from the fact that the petitioner being an operator on Ganganagar- Delhi via Dabwali, Hisar inter-State route under a reciprocal agreement between the State of Rajasthan and Haryana and is plying bus which is fully overlapped by the impugned permit granted on Sangaria to Delhi inter-State route. Undoubtedly, private operators are excluded and no permit could be granted on the area or a portion thereof except to the extent excluded under the scheme itself. However, permit can be granted on an existing route beyond over all limit of the agreement but vehicle can be plied in the other States only after counter-signatures of the competent authority of that State as per the provisions of Section 80 of the Motor Vehicles Act. Though opening of a route and fixing of scope is an administrative matter but without following the prescribed procedure as per law, the R.T.A. has no jurisdiction to create a new inter-State route as it is also necessary to specify route and number of trips in the inter-State agreement. Under the circumstances, the impugned order of the R.T.A. is liable to be set aside being without jurisdiction, and per se illegal."

Thus, the legal position which emerges from the

aforesaid judgments is that right of an operator to ply vehicle

on inter-State route is governed by the reciprocal agreement

entered into by the States concerned.

The petitioner is claiming its right to get the subject

permit countersigned under the reciprocal common transport

agreement among the Governments of Delhi, Haryana,

Rajasthan and Uttar Pradesh published in the Rajasthan

gazette on 1.12.2021 which supersedes all the previous

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agreements on the subject entered among them for NCR and

provides that it shall have an overriding effect over all other

agreements applicable to the NCR in this regard. The subject

route i.e., Delhi-Alwar via Haryana for Private Stage Carriages

Buses as per agreement in between Delhi and Rajasthan is

provided under Annexure-A-1 with a note underneath that

buses shall originate and terminate at designated bus

terminal. For the routes available for the Private Carriage

Buses under Annexure-B-1 for the States of Delhi and

Haryana, one of the notes underneath provides that the valid

permits granted earlier by both the States on which buses of

private operators are being operated as on date have been

considered to be a part of this agreement for future operation.

The sheet-anchor of the submission of the learned senior

counsel for the petitioner that since, Part-I of Annexure-A,

which deals with State Transport Undertaking, is followed by

Annexure-A-1 dealing with the subject route and Annexure-B1

which provides list of number of permits for the Private Stage

Carriage Buses under the agreement in between Delhi and

Haryana precedes the list of routes for State Transport

Undertaking which is provided under Annexure-B-II, the note

underneath Annexure-B1 should also be read as part of

Annexure-A1 cannot be countenanced for the reason that

notes below two Annexures are not common. In addition to

note no.1, part of Annexure-B1, which validates earlier

permits granted by both the States for the purpose of subject

agreement also, there are three more notes with the note no.4

being common to the note underneath Annexure-A1 and the

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notes nos.2 and 3 leave no room for doubt that these are

specific for the routes provided under Annexure-B1. Even

otherwise also, the subject agreement comprises of as many

as six Annexures some of which are sub-divided in further

Annexures and each Annexure (table) is followed by its own

note(s).

There is another important reason not to find merit in

the submission made by the learned senior counsel for the

petitioner. While, all the 15 routes under Annexure-B1 of the

gazette notification dated 1.12.2021 were existing under

Annexure-B1, a part of preceding reciprocal common transport

agreement among the Governments of Delhi, Haryana,

Rajasthan and Uttar Pradesh published in the gazette

notification dated 22.7.2010, the subject route, i.e., the Delhi-

Alwar via Haryana for the Private Stage Carriage Buses under

the agreement between Delhi and Rajasthan did not exist in

the gazette notification dated 22.7.2010. Therefore, the note-

1, part of Annexure-B1, cannot be treated as part and parcel

of Annexure-A1 merely because Annexure-B1 immediately

follows Annexure-A1.

Refusal to countersign the pre-existing permit issued by

Delhi NCT for the Delhi Alwar route via Haryana is in tune with

the statutory scheme also. Section 71 of the Act provides the

procedure to be adopted by the Regional Transport Authority

in considering the application for Stage Carriage permit. It

provides that as and when applications for grant of Stage

Carriage permit are received, after reserving such number of

permits as provided under clause(c) for the applicants of

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Scheduled Castes and Scheduled Tribes, suitability will be

adjudged on the factors mentioned therein and other

conditions being equal, preference has to be given as provided

under clause (d). The subject route being a new route, proper

notice has to be issued inviting applications for issuance of

permit and the successful applicants only, are entitled for

countersignature of their permit. Indisputably, such a

procedure is yet to be followed in the present case.

The upshot of the aforesaid discussion is that this Court

does not find any merit in this writ petition which is dismissed

accordingly.

Pending application also stands disposed of.

(MAHENDAR KUMAR GOYAL),J

RAVI SHARMA /186

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