Raj Transport Company Pvt. Ltd., Amritsar v. M/s Banda Bahadur Highways Pvt. Ltd., Ludhiana

CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Baldev Kapoor, Advocate, for the petitioner. (in CWPs No. 297 and 314 of 2007) Mr. H.S. Sawhney, Senior Advocate, with Mr. Rajinder Sharma, Advocate, for the petitioner. (in CWP No. 316 of 2007) Mr. A.M. Punchhi, Advocate, for the petitioner. (in CWP No. 2921 of 2007) Mr. A.G. Masih, Senior DAG, Punjab. Mr. Jagdish Marwaha, Advocate, for Pepsu Road Transport Corporation. * * * SATISH KUMAR MITTAL, J. This order shall dispose of Civil Writ Petition Nos. 297 of 2007 (Raj Transport Company Pvt. Ltd., Amritsar versus State Transport Appellate Tribunal, Punjab and others), 314 of 2007 (M/s Banda Bahadur Highways Pvt. Ltd., Ludhiana versus State Transport Appellate Tribunal, Punjab and others), 316 of 2007 (Apna Travels Pvt. Ltd., Amritsar versus State Transport Appellate Tribunal, Punjab and others) and 2921 of 2007 (Indian Bus Service (Regd.) Malerkotla versus State of Punjab and others).

All these petitions are arising from a common order dated 4.12.2006, passed by the State Transport Appellate Tribunal, Punjab, Chandigarh (hereinafter referred to as `the Appellate Tribunal'), whereby the separate appeals filed CWP No. 297 of 2007 -3- by all the petitioners against the order dated 10.12.1988, passed by the State Transport Commissioner, Punjab (hereinafter referred to as `the STC') have been dismissed. Before considering the contentions raised by learned counsel for the petitioners to challenge the aforesaid impugned order, it will be appropriate to give brief facts of the case. In the year 1988, when the Motor Vehicles Act, 1939 (hereinafter referred to as `the Act of 1939'), which has now been repealed by the Motor Vehicles Act, 1988 (hereinafter referred to as `the Act of 1988') with effect from 1.7.1989, was in force, the STC vide a notice published in the Motor Transport Gazette (weekly) Chandigarh, invited applications for grant of four stage carriage permits for plying two return trips daily on Samana-Amritsar (via Bhawanigarh, Nabha, Malerkotla) route.

In response to the said notice, 15 applications, including applications of the petitioners and Pepsu Road Transport Corporation (hereinafter referred to as `PRTC'), were received. As per Rules, the contents of those applications were published in the Motor Transport Gazette (Weekly), Chandigarh, for inviting objections, if any. Thereafter, applications of all the applicants were considered on merits by the STC and after hearing all the applicants, the order was reserved on 29.11.1988, which was pronounced on 10.12.1988, whereby in the public interest only two stage carriage permits with one return trip daily were granted to PRTC, who was having experience and knowledge of the route. The remaining two permits CWP No. 297 of 2007 -4- were withheld. Against the said order, the present four petitioners and one Roshan Lal filed five separate appeals. Those appeals were disposed of by a common order dated 8.1.2003, passed by the Appellate Tribunal.

The appeal filed by Indian Bus Service (Regd.) Malerkotla (petitioner in CWP No. 2921 of 2007) was dismissed being barred by limitation, whereas the appeals filed by the other four appellants, including the petitioners in CWPs No. 297, 314 and 316 of 2007), were allowed holding that since two permits were available, therefore, the same be granted to four appellants with half return trip daily on the route in question. Feeling aggrieved against the said order, two writ petitions (CWPs No. 3314 and 10661 of 2003) were filed in this Court. CWP No. 3314 of 2003 was filed by Indian Bus Service (Regd.), Malerkotla where CWP No. 10661 of 2003 was filed by PRTC. The other four appellants, who were granted two permits with half return trip daily on the route in question, did not challenge the said order. In CWP No. 3314 of 2003, case of the petitioner [Indian Bus Service (Regd.), Malerkotla] was that its appeal was wrongly dismissed as time barred and its claim for grant of permits on the route in question was not considered.

In CWP No. 10661 of 2003, PRTC challenged the order of granting two permits with half return trip daily on the route in question to four appellants, on the ground that it (PRTC) had applied for grant of all the four permits and now after coming into force of the Act of 1988 and the new Transport Scheme of the State, the PRTC being a State Transport Undertaking is only entitled to all the permits for the CWP No. 297 of 2007 -5- route, which is a monopoly route. A Division Bench of this Court, vide its order dated 4.8.2006, allowed the writ petitions, set aside the order dated

8.1.2003 and remitted the matter to the Appellate Tribunal to decide it afresh in accordance with law. In the said order, a finding was recorded that the Appellate Tribunal had committed an error of jurisdiction by granting four permits with half return trip daily to four appellants, totally without application of mind and without inviting applications for those permits. While remanding the matter, the petitioners, who were operating on the route in question with half return trip daily, on the basis of the permits granted to them vide order dated 8.1.2003, were permitted to operate till the decision by the Appellate Tribunal. However, PRTC and the Punjab Roadways were granted liberty to raise the points raised by them in CWP No. 10661 of 2001 before the Appellate Tribunal. After the remand, the Appellate Tribunal, vide its impugned order dated 4.12.2006, dismissed all the five appeals i.e. the four appeals filed by the present petitioners and the appeal filed by one Roshan Lal.

It was held that all the appeals were barred by limitation, having not been filed within a period of 30 days, as required under Rule 85 of the Punjab Motor Vehicle Rules, 1989. It was further held that keeping in view the public interest, the two permits, with one return daily, were rightly granted to PRTC, who was having an experience and the knowledge for the route, being existing operators. Regarding the remaining two permits, which were withheld by the STC, it was held that after coming into force of the CWP No. 297 of 2007 -6- Transport Scheme as notified on 9.8.1990, which was subsequently modified vide notification dated 21.10.1997, the same cannot be granted to the private operators, because a stretch of 83 Kms. of the route in question falls on the monopoly route of Punjab Roadways and PRTC, and according to the Transport Scheme, only 20% or upto the distance of 15 Kms. of the monopoly route, whichever is less, can be permitted to be operated by the private operators.

Against the said order, these four petitions have been filed by the four private operators. Learned counsel for the petitioners firstly submitted that while dismissing the appeals of the petitioners on the ground of limitation, the learned Appellate Tribunal has acted illegally and against the material available on record. It is the case of the petitioners that they were required to file appeal against the order of the STC within a period of 30 days from the date of communication of the order, which according to the petitioners was not communicated to them and they filed the appeals within 30 days from the date of their knowledge. Therefore, the appeals should have been treated to be filed within limitation. Without going into the contention raised by learned counsel for the petitioners on the point of limitation, we permitted them to convince the Court on other points, on which the appeals of the petitioners have been dismissed.

It was told to them that the point of limitation will not be taken against them. CWP No. 297 of 2007 -7- Learned counsel for the petitioners, then, assailed the impugned order on the ground that the learned Appellate Tribunal has wrongly held that the two permits were rightly granted to PRTC, who was having an edge over the private operators being having a great experience and knowledge on the route in question, being existing operators. Learned counsel submitted that experience of PRTC, who was having temporary permits under the Act of 1939, should not have been given preference over and above the petitioners, who were also having experience, though not on the route in question, but on other routes. We have considered the submissions made by learned counsel for the petitioners and have also gone through the orders dated 10.12.1988,

8.1.2003 and the impugned order dated 4.12.2006. The authorities below have granted two permits on the route in question with one return trip daily to PRTC by keeping in view the public interest and the experience as well as knowledge of PRTC, which is a State Transport Undertaking. We do not find any illegality in that part of the impugned order. Regarding the remaining two permits, which were withheld by the STC vide his order dated 10.12.1988 and were subsequently granted with half return trip daily to the four private operators by the Appellate Tribunal vide order dated 8.1.2003, learned counsel for the petitioners submitted that the learned Appellate Tribunal was not justified in observing that now these two permits cannot be granted to the private operators after coming into force the Transport Scheme issued by the State Government CWP No. 297 of 2007 -8- vide notification dated 9.8.1990, which was further modified vide notification dated 21.10.1997, as according to the new Transport Scheme, a private operator cannot be allowed to operate on a portion of 20% or upto the distance of 15 Kms. of the monopoly route.

Learned counsel submitted that the new Transport Scheme, which has been formulated and published by the State Government in exercise of Section 99 of the Act of 1988, is not applicable for the allotment of two permits, which were withheld by the STC on 10.12.1988, as this date was to be taken as the date of consideration and it should be relevant date for considering the claim of the appellants for grant of those two stage carriage permits. Learned counsel submitted that the provisions of the Act of 1988 and the new Transport Scheme cannot be made applicable retrospectively to the petitioners, as not only the applications for the allotment of four permits were invited, but the applications were also processed and considered by the STC prior to coming into force of the Act of 1988. In support of his contention, learned counsel for the petitioners relied upon the decision of the Supreme Court in Esskey Roadways (Firm) v.

Anandhakrishnan Bus Service, (1994) 6 Supreme Court Cases 71. On the other hand, learned counsel for PRTC submitted that the route in question from Samana to Amritsar (via Bhawanigarh, Nabha, Malerkotla), which is covering a length of 270 Kms. in single length, is having a monopoly route of PRTC from Nabha to Ludhiana, which is 82 Kms. in single length as per notification dated 9.8.1990 and in the same CWP No. 297 of 2007 -9- manner, part of the route from Jalandhar to Amritsar, which is 83 Kms., is also a monopoly route of Punjab Roadways, vide notification dated

9.8.1990. Therefore, the major portion (165 Kms.) of the route in question is falling on the monopoly route of PRTC and Punjab Roadways. Learned counsel submitted that in exercise of the power conferred under Sections 99 and 100 of the Act of 1988, the State Government has formulated the Transport Scheme, according to which, the private operators can be permitted to cover a distance of only 15 Kms. or 20% of the monopoly route, whichever is less. He submitted that the STC vide his order dated

10.12.1988 withheld the two permits in public interest and during the pendency of the appeal before the Appellate Tribunal, the Act of 1988 and the Transport Scheme came into force. Therefore, the two permits, for which applications of all the persons remained pending, were to be considered in accordance with the Punjab Motor Vehicle Rules, 1989 (framed under the Act of 1988) and the Transport Policy of 1990, which was modified in the year 1997. Learned counsel, while referring to the provisions of Section 98, sub-section (2) of Section 99 and Section 103 of the Act of 1988, submitted that the Act of 1988 will be applicable to all the pending applications. Therefore, after coming into force of the Act of 1988, two permits which were withheld could not have been granted to the petitioners and the learned Appellate Tribunal has rightly not granted those permits to the petitioners and there is no illegality in the impugned order.

After considering the aforesaid submissions made by learned CWP No. 297 of 2007 -10- counsel for the parties, we are of the opinion that there is no force in the contentions raised by learned counsel for the petitioners and there is no illegality in the impugned order, passed by the Appellate Tribunal. Undisputedly, vide order dated 10.12.1988, out of four permits, the STC granted two stage carriage permits with one return trip daily to PRTC and the remaining two permits were withheld for the time being, in the public interest. In view of the law laid down by the Supreme Court in Mohd. Ihrahim, etc. v. The State Transport Appellate Tribunal, Madras, etc. AIR 1970 Supreme Court 1542, the STC was within its right and jurisdiction to withheld the two permits. If the applications are invited for allotment of stage carriage permits, an applicant has right of consideration for the allotment of those permits, but he cannot claim the permit as a matter of right.

When the appeals filed by the petitioners against the said order were pending before the Appellate Tribunal, the Act of 1988, the Rules made thereunder and the Transport Scheme of 1990 (which was further modified in the year 1997) came into operation. Therefore, applications of the petitioners for allotment of the two permits, which were withheld by the STC, were deemed to be pending under the Act of 1988. Under the Act of 1988, Chapter V deals with control of transport vehicles, which includes grant of stage carriage permits by the transport authorities. Chapter VI deals with special provisions relating to State Transport Undertakings. Section 98, which falls under Chapter VI provides that the provisions of this Chapter and the rules and orders made CWP No. 297 of 2007 -11- thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law.

Section 99 deals with preparation and publication of proposal regarding road transport service of a State Transport Undertaking. This section empowers the State Government to formulate a Transport Scheme for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service to the public or for providing transport services in general or any particular class of such service in relation to any area or route or portion thereof to be run and operated by the State Transport Undertaking. Section 103 (1) provides as under : Where, in pursuance of an approved scheme, any State Transport Undertaking applies in such manner as may be prescribed by the State Government in this behalf for a stage carriage permit or a goods carriage permit or a contract carriage permit in respect of a notified area or notified route, the State Transport Authority in any case where the said area or route lies in more than one region and the Regional Transport Authority in any other case shall issue such permit to the State Transport Undertaking, notwithstanding anything to the contrary contained in Chapter V. Sub-section (2) of Section 103 further provides that for the purpose of giving effect to the approved scheme in respect of a notified area or notified CWP No.

297 of 2007 -12- route, the State Transport Authority may by order refuse to entertain any application for the grant of renewal of any other permit or reject any such application as may be pending. Section 104 provides for restriction on grant of permits in respect of a notified area or notified route, which read as under:-

Where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme : Provided that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route.

In the aforesaid provisions, which fall under Chapter VI of the Act, it has been categorically stated that after coming into force of the scheme formulated and published by the State, no permit can be granted for operation by a private operator on the notified monopoly route.

In view of CWP No. 297 of 2007 -13- these provisions, in our opinion, the learned Appellate Tribunal has rightly rejected the claim of the petitioners for allotment of the two remaining stage carriage permits as major portion of the said route, undisputedly, is a monopoly route on which only the State Transport Undertaking can operate. The contention of the petitioners that their case has to be considered under the Act of 1939, because the date of consideration is to be taken as 10.12.1988, when the STC initially passed the order, cannot be accepted. It is well settled that the appeal is continuation of the initial proceedings. When the two permits were withheld by the STC and the appeals filed by the petitioners were pending before the Appellate Tribunal, the Act of 1988 came into operation. Therefore, with regard to those two permits, which were to be granted to eligible applicants, the Act of 1988 and the Transport Scheme formulated thereunder came into operation, therefore, the claim of the eligible applicants were to be considered in accordance with the prevalent law. The date on which the appeals were to be decided was the date of consideration, as far as granting of two permits, which were withheld by the STC, is concerned, as the applications filed by the petitioners were deemed to be pending. Therefore, the date of consideration was not

10.12.1988, but the date when the Appellate Tribunal passed the order. On that date, the Act of 1988 and the Transport Scheme were in operation, according to which the permits cannot be granted to the petitioners. In the last, learned counsel for the petitioners raised one more contention that for the last about five years, the petitioners are plying the CWP No. 297 of 2007 -14- buses with half return trip daily, therefore, in the interest of justice, they should be permitted to continue on the same. In our opinion, when it has been found that under the Act of 1988 and the new Transport Scheme, the petitioners can not be granted permits to operate on monopoly route, they cannot be permitted to continue to operate on the said ground. In view of the above, we do not find any illegality or jurisdictional error in the impugned order passed by the Appellate Tribunal. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE February , 2008 ( RAKESH KUMAR GARG ) JUDGE