DBSAW No.116/2008 With two connected matters 1 60 to 62 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: JUDGMENT
1 D.B. Civil Special Appeal (W) No.116/2008 Narendra Kumar Vs. State of Raj. & Ors.
2. D.B. Civil Special Appeal (W) No.41/2008 Subey Singh Vs. State of Raj. & Ors.
3. D.B. Civil Special Appeal (W) No.42/2008 Bharat Singh Vs. State of Raj. & Ors. DATE OF JUDGMENT
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13. h January 2014. HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE V.K. MATHUR Mr. B.L. Maheshwari, Sr. Advocate with ]. Mr. Thana Ram ]. Mr. Manish Shishodia ]. Mr. S.P. Arora, ]. Mr. M.A. Siddiqui for Dr. Pratistha Dave ]., for the respective parties. <><><> BY THE COURT: (Per Dinesh Maheshwari,J.) These 3 intra-court appeals (SAW Nos.116/2008, 41/2008 and 42/2008), filed respectively by the writ petitioner and by the respondents Nos.5 and 4 of CWP No.5646/2005 against the same order dated 21.01.2008, have been considered together; and are taken up for disposal by this common judgment. After having heard the learned counsel for the parties and having perused the material placed on record with reference to the law applicable, we have formed an opinion that S.B.Civil Writ Petition No.5646/2005 deserves to be restored for reconsideration of the learned Single Judge of this Court on the merits of the case. DBSAW No.116/2008 With two connected matters 2 As the matter is proposed to be restored to the file of the writ Court, not much of dilatation on the chequred history and background aspects of the matter appears necessary. Only a brief reference to the relevant facts and background aspects would suffice. The matter relates to grant of permits on Inter-State route ‘Rajgarh to Hissar via Jhumpa’ under the Inter-State agreement dated 09.07.1997, entered into between the State of Rajasthan and the State of Haryana. Under the said agreement, 5 permits could have been granted by the State of Rajasthan. Earlier, such 5 permits came to be granted but then, 2 of them, as granted in favour of the Rajasthan State Road Transport Corporation (‘the Corporation’) came to be cancelled after they were put to challenge. There had been a spate of litigation in relation to the vacancies so created but the ultimate position had been that such vacancies of 2 permits with 4 return trips were ordered to be re-advertised. After re- advertisement, several applicants came up before the concerned Regional Transport Authority (‘RTA’), who proceeded to grant 4 permits, of single trip each, to 4 of the applicants, namely Shri Narendra Kumar (Appellant of SAW No.116/2008 – the writ- petitioner), Shri Subey Singh (Appellant of SAW No.41/2008), Shri Bharat Singh (Appellant of SAW No.42/2008) and one Shri Rishi Kumar. Neither the said 4 grantees nor the other applicants were satisfied with the order so passed by RTA, granting 4 permits of one single trip each as against the vacancies of 2 permits of 4 return trips. Thus, the grantees as also the other applicants questioned the order so passed by RTA; and in this manner, 10 appeals came to be preferred before the State Transport Appellate Tribunal (‘STAT’), which were dealt with and decided together by the common impugned order dated 29.07.2005. DBSAW No.116/2008 With two connected matters 3 The STAT found the order so passed by the RTA unsustainable in law; and, with reference to the contentions urged on behalf of the appellants, observed, inter alia, as under: - “5-व द न अध क अप ल र क तक ह कक द य गय आ श व ध व रद त ह ह ह सय सपप भ ह। ह ककस भ पर&ससरतत म* यह आ श ठह& नह , सकत ह। न & जय. क ब च समपनन ह3ए क& & क अन3स & 5 अन3ज पत स क7त र स8नम* 3 प9 म* 8 & अन3ज पत र सर न र&क र इन न. प&ममट. क व रद व प र स,खय एक न च & प&ममट आ -आ 8 & ककय ह?. 8 श य कभ भ व ध क@ म,श नह , र प&ममट क व भ 8न कभ भ नह , ककय 8 सकत ह?.। इस क &ण द य गय आ श ठह&न य गय नह , &ह ह।" The STAT, thereafter, proceeded to consider the comparative merits of the applicants and ultimately held that the appellant Subey Singh, belonging to Scheduled Caste category and the appellant Bharat Singh, being an Ex-serviceman, were entitled to preference. Therefore, while setting aside the order dated 06.12.2004 as passed by the RTA, the STAT ordered granting of one permit each in favour of Shri Subey Singh and Shri Bharat Singh. The STAT finally ordered as under: - “अत: अप ल र गण क@ अप ल व रद पतयर एक स क & क& व प र एक द & प र&त आ श द न ,क :
6. 12.04 क अप सर क& स3बमस,ह भ&तमस,ह क इस अनत& जय य म ग & 8गढ-दहस & य झ3पप र&क सर न. प& एक-एक प&ममट द य 8 त ह। न&नGक3म & ऋ7वIक3म & क आ -आ प&ममट द य गय ह?. उसक तन&सत ककय 8 क& प&9 प&ममट द य 8 न क@ प रन इनक@ अस क & क@ 8 त ह?. तर अनय सभ अप ल र गण श मत चनGकल , झ9म&मल, स3श लक3म &, प नक3म &, ह&फ9ल, & मककशन क इस म ग प& प&ममट द य 8 न क@ प रन पत अस क & क& उनक@ अप ल* तन&सत क@ 8 त ह?.।" The order so passed by the STAT was questioned in the writ petition leading to these appeals, i.e., S.B.Civil Writ Petition No.5646/2005 by the unsuccessful appellant Narendra Kumar, who had earlier been granted the permit of one single trip by the RTA. It appears that before the learned Single Judge, respondents of the writ petition, (the appellants of SAW No.41/2008 and 42/2008, raised the first question about the legality of the proposition adopted by the RTA in granting single trip permit, which practically amounted to granting of half a permit to each of 4 applicants; and it was DBSAW No.116/2008 With two connected matters 4 contended that such a course was entirely impermissible in law. The learned Single Judge proceeded to consider this aspect of the matter and observed that grant of permits on the basis of trip was permissible under the Inter-State agreement. The learned Single Judge referred to the provisions of Sections 70 and 71 of the Motor Vehicles Act, 1988 (‘the Act') as also the definition of permit occurring in Section 2(31) of the Act and observed that the provisions do not indicate anything to the contrary for the purpose of grant of a permit with respect to each trip. The learned Single Judge, therefore, rejected the contentions urged on behalf of the respondents. The learned Single Judge, however, did not deal with any other aspect related with the merits of the case and, on the conclusions drawn in relation to the question of law, held the order of STAT unjustified. The learned Single Judge, therefore, set aside the order of STAT dated 29.07.2005 and restored the order of the RTA dated 06.12.2004. In other words, the learned Single Judge endorsed the course adopted by RTA, of granting 4 permits of single trip each. The learned Single Judge also observed that 4 permits for 4 single trips were nothing but 2 full permits for return trips; and in this regard, referred to the column No.5 and 9 of the Inter-State agreement, which envisage that the number of trips would be double the number of permits mentioned in column No.9 of the agreement. The learned Single Judge, inter alia, observed and ordered as under:-
“6. A perusal of the said interstate agreement and its annexure indicates that the grant of permits on the basis of trip is permissible in law. A perusal of relevant provisions of Section 70 and 71 of the Motor Vehicles Act dealing with the applications for permit and grant of permit read with the definition of word “permit”. in Section 2(31) of the Act also does not indicate anything contrary to the grant of a permit with respect of each trip. The use of word ‘a’ in the Section 70 and 71 does not necessarily mean grant of a permit for the return trip only on the route in question. No binding precedent has also been brought to the notice of this Court, which DBSAW No.116/2008 With two connected matters 5 lays down in any manner that the grant of permit on the basis of Single Trip was not permissible in law.
7. Therefore, this Court does not find any reasonable basis either for the contention raised on behalf of the appellants before the STAT and the consequential finding of the learned STAT when it said in para 5 that grant of permit for Single Trip was not only illegal but a ridicule. This Court is unable to find any basis for these findings holding that the grant of Single Trip Permits was contrary to law. Learned counsel for the respondent Mr. B.L. Maheshwari then drew the attention of this Court to Section 88(5) of the Act, wherein it has been laid down that in the cases of interstate agreement, every proposal to enter into an agreement between the States to fix the number of permits which is proposed to be granted or countersigned in respect of each route or area, shall be published by each of the State Government. He therefore, contents that since the number of permits fixed under the agreement in question was only two as out of five permits available for the State of Rajasthan three having already been granted, therefore, there was no question of grant of four permits for Single Trip. This contention of learned counsel for the respondent is found to be devoid of merit because in effect for the Single Trips, four permits granted by the learned RTA are nothing but two full permits for return trips because in column No.5 and 9 of the interstate agreement as discussed above, the number of trips are double the number of permits permitted in column No.9 of the said agreement. Therefore, in the opinion of this Court, the grant of Single Trips Permits by learned RTA was in accordance with law. This Court need not comment upon the discussion of learned STAT on the comparative merits of each case or merit of application of each of the appellants/applicants, as this Court is satisfied that the very foundation of the impugned order of learned STAT that grant of four Single Trips Permits was contrary to law, is found to be not existing.
8. Consequently, this writ petition is allowed and the impugned order of learned STAT dated 29.07.2005 is quashed and set aside and the order of the learned RTA dated 06.12.2004 is restored. No order as to costs.”
. While questioning the aforesaid observations and the findings on the question of law, the learned counsel for the parties are more or less ad idem that the proposition, as adopted by the RTA and as endorsed by the learned Single Judge, is not envisaged by law and cannot be countenanced. Having examined the matter with reference to the law applicable, we are inclined to uphold the contentions so urged by the learned counsel for the parties. The term “permit”. is defined in clause (31) of Section 2 of the Act as under: - DBSAW No.116/2008 With two connected matters 6 “(31) “permit”. means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;”. Section 70 deals with an application for a permit in respect of stage carriage and reads as under: -
“70. Application for stage carriage permit. - (1) An application for a permit in respect of a stage carriage ( in this Chapter referred to as a stage carriage permit ) or as a reserve stage carriage shall, as far as may be, contain the following particulars, namely :- (a) the route or routes or the area or areas to which the application relates ; (b) the type and seating capacity of each such vehicle ; (c) the minimum and maximum number of daily trips proposed to be provided and the time-table of the normal trips. Explanation. - For the purposes of this section, section 72, section 80 and section 102, “trip”. means a single journey from one point to another, and every return journey shall be deemed to be a separate trip; (d) the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions; (e) the arrangements intended to be made for the housing, maintenance and repair of the vehicles, for the comfort and convenience of passengers and for the storage and safe custody of luggage; (f) such other matters as may be prescribed. (2) An application referred to in sub-section (1) shall be accompanied by such documents as may be prescribed.”
. Section 72 of the Act provides for refusal or grant of stage carriage permit by the RTA in accordance with the application made or with such modifications as it deemed fit. Sub-section (2) of Section 72 makes the provision for attaching one or more of the given conditions in the permit. Condition (iii) envisaged by sub-section (2) of Section 72, being relevant, could be read as under: - “(iii)the minimum and maximum number of daily trips to be provided in relation to any route or area generally or on specified days and occasions;”. DBSAW No.116/2008 With two connected matters 7 In the scheme of the enactment, it is but clear that while the permit means the permission which is issued by the concerned authority, authorising the use of a motor vehicle as transport vehicle, in the application for stage carriage permit, the minimum and maximum number of daily trips proposed to be provided are required to be stated. As per explanation to clause (c) of Section 70, “trip”. means a single journey from one point to another; and every return journey is deemed to be a separate trip. The permit to be granted would be definitely providing for minimum and maximum number of daily trips in relation to any route or area. In the scheme of the Inter-State Agreement entered into between the State of Rajasthan and State of Haryana, the specifications for the route in question had been that it covers 22 kms. in the State of Rajasthan and 48 kms. in the State of Haryana. The number of single trips for Rajasthan are provided as 10 and those for the State of Haryana as 14. The number of permits for the State of Rajasthan are 5; and for the State of Haryana, they are 7. It is clear that so far the State of Rajasthan is concerned, only 5 permits could be granted, of which, 3 are already in operation. The permits have been granted with one return trip each, as co-related with the number of the trips permissible in the Agreement. In the scheme of the provisions above referred and the Agreement between the States, it remains incomprehensible that in the State of Rajasthan, for the remaining 2 vacancies, 4 permits could be granted with one single trip each. If such a proposition is allowed to stand, the result would be that of the State of Rajasthan issuing 7 permits. i.e., 3 already existing and 4 as proposed by RTA. This remains entirely impermissible. DBSAW No.116/2008 With two connected matters 8 The STAT, in our view, has very rightly observed that permit is never envisaged to be divided with reference to the trips to be provided therein. It has never been anyone’s case that more than 2 permits could be granted for the route in question at the relevant point of time by the State Government. The baseless methodology of dividing the permits and thereby trying to satisfy 4 persons, as sought to be adopted by the RTA, had been directly contrary to law and is, apparently, unworkable. The STAT, to that extent, had very rightly disapproved the approach of the RTA. In the totality of the circumstances, with respect, we are unable to approve the order passed by the learned Single Judge in endorsing and restoring the order of RTA for grant of 4 permits with reference to one single trip each. It is clear and understood by all the concerned that only 2 permits with 4 return trips were available to be granted in this matter. So far the next issue as regards the legality and correctness of the grant made in favour of the appellants of SAW Nos. 41/2008 and 42/2008 is concerned, when we find that the learned Single Judge has not examined this aspect of the matter at all in the order impugned; and when the writ petitioner apparently had other arguments to urge on the merits of the case, it was required that all the relevant aspects were dealt with by the writ Court. For the learned Single Judge having not dealt with the merits of the case at all, we do not find it advisable to enter into the merits in these intra- court appeals; and the appropriate course appears to be that of restoring the writ petition for consideration by the learned Single Judge in accordance with law. We may in the passing take note of the submissions made by the learned counsel for the parties that apart from the writ petition DBSAW No.116/2008 With two connected matters 9 leading to these appeals (CWP No.5646/2005), another writ petition, bearing No.4200/2007, has been filed by the other applicant Ramakishan in relation to the same order of STAT, which remains pending before the learned Single Judge. It is also pointed out that one of the petitions filed by other applicant Shri Rishi Kumar, remains pending before Jaipur Bench of this Court. As at present, we consider it proper to set aside the order passed by the learned Single Judge and to restore S.B.Civil Writ Petition No.5646/2005 for its consideration in accordance with law while leaving it open for the parties to make submissions before the learned Single Judge on the merits of the case as also for analogous hearing of the other similar nature writ petition/s. Accordingly, these appeals are partly allowed to the extent and in the manner indicated above. The impugned order dated 21.01.2008 is set aside. S.B.Civil Writ Petition No.5646/2005 stands restored for reconsideration of the learned Single Judge. The Office shall restore the writ petition to its original number and place the same for hearing before the learned Single Judge on 04.02.2014. No costs. (V.K. MATHUR),J.
(DINESH MAHESHWARI),J.
cpgoyal/- DBSAW No.116/2008 With two connected matters 10 D.B. Civil Special Appeal (W) No.41/2008 Subey Singh Vs. State of Raj. & Ors. DATE OF ORDER
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13. h January 2014. HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE V.K. MATHUR Mr. B.L. Maheshwari, Sr. Advocate with ]. Mr. Thana Ram ]. Mr. Manish Shishodia ]. Mr. S.P. Arora, ]. Mr. M.A. Siddiqui for Dr. Pratistha Dave ]., for the respective parties. <><><> This appeal is partly allowed [Vide common order made in D.B. Civil Special Appeal No.116/2008 : Narendra Kumar Vs. State of Raj. & Ors.]. (V.K. MATHUR),J.
(DINESH MAHESHWARI),J.
cpgoyal/- DBSAW No.116/2008 With two connected matters 11 D.B. Civil Special Appeal (W) No.42/2008 Bharat Singh Vs. State of Raj. & Ors. DATE OF ORDER
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13. h January 2014. HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE V.K. MATHUR Mr. B.L. Maheshwari, Sr. Advocate with ]. Mr. Thana Ram ]. Mr. Manish Shishodia ]. Mr. S.P. Arora, ]. Mr. M.A. Siddiqui for Dr. Pratistha Dave ]., for the respective parties. <><><> This appeal is partly allowed [Vide common order made in D.B. Civil Special Appeal No.116/2008 : Narendra Kumar Vs. State of Raj. & Ors.]. (V.K. MATHUR),J.
(DINESH MAHESHWARI),J.
cpgoyal/-