High Court of Punjab and HaryanaCWP/6861/1991disposed of

M/S Amedkar Bus Service Regd v. The St. Tr. Appellate Tribunal Pb & ORS

2023-09-12Mr. Justice Ajay Kumar Mittal22 pages

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"The only point for consideration in these writ petitions is whether the grant of permit under Schedule Caste category under the Motor Vehicle Act will disqualify a permit for another route under the same very category of reservation. This issue has been dealt with in two decisions of this court, one, in M/s Mohali Bus Service Regd. Jalandhar Versus State Transport Appellate Tribunal, Chandigarh and others reported as AIR 1992 Punjab & Haryana 162 and another decision in Amritsar-Thein Dam Bus Service (Regd.), Amritsar Versus The State Transport Appellate Tribunal, Punjab, Chandigarh and others, Civil Writ Petition No. 3317 of 1991 decided on 18.5.2011 which have held that a fact that the person already holds one or more permits is not a necessarily a disqualifying

factor against him. The paramount consideration on all such matters will be only the interest of the public and a permit is to be granted to the applicant belonging to a reserved category. Unless there is a dispute inter: see the candidates belonging to the same class, there is no scope for rejection of a claim under reserved category for the only reason that there was already a permit. The decisions referred to above squarely answer the point referred to above. The orders passed by the authorities are quashed. The petitioners' claim for grant of permit shall be considered in the light of the notification issued by the government under Section 47:A providing for 25% reservation to members of the schedule caste domiciled in the State of Punjab.

The writ petitions are allowed on the above terms. May 16, 2014"

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"The Notification dated 13.9.1979 (Annexure P:1) issued by the Secretary to Government, Punjab, Department of Transport, which is relevant for the present controversy, is reproduced hereunder for facility of reference::

"In exercise of the powers conferred by sub:section (1A) read with sub:section (1B) of Section 47 of the Motor Vehicles Act, 1939 (Central Act No.4 of 1939), the Governor of Punjab is

pleased to reserve for the members of the Scheduled Castes domiciled in Punjab twenty: five per cent of stage carriage permits to be granted any calendar year"

The above Notification Issued by the Government of Punjab in the Department of Transport clearly provides twenty:five per cent reservation of stage carriage permits to be granted in any calendar year for the members of the Scheduled Castes domiciled in Punjab. In the notice dated 18.2.1988 (Annexure 'P:2), which the State Transport Commissioner, Punjab (respondent No.2) had got published in the issue of Motor Transport Gazette Weekly, Chandigarh, dated 22.2.

1988, inviting applications for the grant of two regular stage carriage permits for plying four return trips daily on Dhilwan: Amritsar Via Beas, Rayya, Tangra, Jandiala, Manawala route and in response whereto the Government Transport Undertakings and Private Transport Companies/Societies, including the petitioner:Company had sent applications, complete in all respects, to respondent No.2, too, it was mentioned that "as per Government policy, a quota of 25% of the stage carriage permits is reserved for Scheduled Castes/Scheduled Tribes".

It is, thus, amply clear that the share for the members of the Scheduled Castes had to be granted to the applicants claiming the grant thereof from out of the said quota and the share of the Scheduled Castes could only be carried forward in the case of non:availability of the applicant belonging to this community. Needless to say, since the petitioner:Company was available for the grant of stage carriage permit from out of the quota reserved for the Scheduled Caste Community, respondent No.2 had committed an error in refusing the grant of such permit to the petitioner:Company and respondent No.1 did not rectify the said error of respondent No.2 while dealing with the appeal of the petitioner:Company.

In this view of the matter and without dilating upon the controversy at hand any further, the petitioner:Company is, of course, entitled to the relief claimed and the order dated 14.9.1988 (Annexure P:

4) passed by the State Transport Commissioner, Punjab (respondent No.2) and the order dated 29.8.1990 (Annexure P:5) passed by the State Transport Appellate Tribunal, Punjab (respondent No.1), in so far as they rejected the claim of the petitioner:Company, deserve to be quashed. Ordered accordingly.

For the aforesaid reasons, this writ petition is allowed, the Impugned orders (Annexures P:4 and P:5), in so far as they rejected the claim of the petitioner:Company, are set aside and respondent No.2 is directed to grant the relief claimed by the petitioner:Company in view of the clear:cut instructions of the Government as contained in Notification (Annexure P:1) and observations made above. Respondent No.2 is

directed to extend the necessary relief to the petitioner:Company within a period of three months from the date of receipt of a copy of this judgment."

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BThe Tribunal was, thus, not justified in remanding the matter to the State Transport Commissioner but it should have at its own considered the claim of the petitioner viz:a: viz the other scheduled caste applicants, if any. In the instant case, the petitioner was the only scheduled caste candidate before the Tribunal whose claim should have been considered objectively in accordance with law instead of directing new applications to be invited. There was, of course, another scheduled caste applicant before the State Transport Commissioner but he did not prefer any appeal against the refusal of the grant of the permit to him. The mere fact that the petitioner is the only candidate left in the field or that he already holds another permit is by itself no ground to refuse a permit to him or to invite fresh applications."

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"- "That in the year of 1988, in Jalandhar Region as much as 505 permits were granted on regular basis, in compliance with the Hon'ble Supreme Court's Judgement dated 27.7.87 in Civil Appeal No. 1522 of 1987, which were being issued on temporary basis earlier. Applying the ratio provided by the scheme (s) of the year 1969/1972 of 60:40, out of 505 permits 303 permits were to be issued in favour of the State Transport Undertakings, whereas rest were to be issued to private operators. It was only the share of private operators which was to be taken into account for the grant of 25% permits to the scheduled caste applicants in view of the notification dated 13.9.79, which is annexed as Annexure R:I. From this, it comes out that the total number of permits which were to be reserved and granted to the scheduled caste candidates were 50 permits only, whereas

in fact they have been granted 70 permits. It is also relevant to mention here that out of 505 permits, total number of permits which have been granted to private operators is 269 and 70 permits which have been granted in favour of the scheduled caste is even more than 25% of this number. The split of 505 permits issued in the year of 1988 is as under:: Sr. No.

Name of the grantees No. of permits.

Punjab Roadways.

P.R.T.C.

Nigam Transport.

Scheduled Caste.

E.W.S.

General (Private) In view of the above cited figure the scheduled caste applicants have so far taken much more than the quota which comes to their share." &

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When, the Special Leave Petition came up for hearing on September 16, notice was issued to the State Transport Commissioner requiring him to show cause as to why he should not be directed to take action on applications made under section 46 of the Act for granting permits to ply stage carriages instead of issuing temporary permits under section 62 of the Act periodically, even though there was permanent need to grant regular stage carriage permits. In reply to the said notice the 1st Respondent has filed a counter: affidavit, the relevant portion of which is as follows:

" In the State of Punjab two separate schemes with regard to the grant of stage carriage permits in favour of the State Trans: port Undertakings and the Private Operators were approved by the Government of Punjab under sub:section (2) of section 68(D) of the Motor Vehicles Act, 1939. Out of the two schemes one is called 'Punjab Roadways Scheme' operative in the erstwhile Punjab areas and the other is called 'Pepsu Road Transport Corporation Scheme' operative in the erstwhile Pepsu areas. The schemes for Punjab Roadways and Pepsu Road Transport Corporation were

published on 19.11.1969 and 18.2.1972 respectively. A copy of both the schemes are exhibited as Annexure R1 and R2.

According to the above notifications the Punjab Government had announced that:

(i) 60% operation will be undertaken by the Punjab Roadways and the remaining 40% by the existing private operators and new entrants in the ratio of 30: 10, respectively in the areas of erstwhile Punjab State. (ii) 60% operation will be undertaken by the Pepsu Road Transport Corporation and 40% by the private operators in Pepsu territory. (iii) Notifications further provided that the schemes will have the effect for a period of 7 years (upto 18.11.1976) in Punjab State and will last till 30th June 1977 in the Pepsu territory.

(iv) After the expiry of 7 years (upto 18.11.1976) in the case of Punjab Scheme and from 1st July, 1977 in the Pepsu territory, 1/3rd operations of the private operators will be taken over by the Punjab Roadways/Pepsu Road Transport Corporation every year to complete the take over in three years.

Neither the Punjab Roadways nor the Pepsu Transport Corporation have taken over the operations from the private operators in the terms of above mentioned notifications nor new schemes have been announced by the Government. The transport operations have, however, to be continued as at present to save the public from inconvenience. At the same time it will not be advisable to grant regular permits on long terms basis in the absence of any transport policy announced by the Punjab Government. Under these circumstances I am granting/issuing permits on temporary basis after following the prescribed procedure laid down under section 47 of the Motor Vehicles Act, 1939 and after giving due hearings to all the applicants at the time of initial grant.

As soon as the new transport policy is finalised by the Government all the stage carriage permits granted on temporary basis due to non:finalisation of transport policy will be granted on regular basis after following the procedure as laid down under sections 57(2) and 57(3) of the Motor Vehicles Act, 1939. It may, however, be added here that the State Government is in the process of finalising a new Transport policy."

A reading of the counter:affidavit filed by the State Transport Commissioner, Punjab practically does not set:up any defence at all to the prayer made by the appellant. The counter:affidavit refers to two schemes, namely, the Punjab Roadways Scheme and the Pepsu Road Transport Corporation Scheme approved under section 68:D of the Act, which were published on 19.11.1969 and 18.2.1972 respectively. It is, however,

admitted that neither the Punjab Roadways nor the Pepsu Road Transport Corporation have taken over the operations from the private operators in terms of the above: mentioned notifications nor any new scheme has been announced by the Punjab Government. The 1st Respondent further states that since there was general inconvenience, the temporary permits were being issued after following the prescribed procedure laid down under the Act. The affidavit further says that due to the non:finalisation of the transport policy by the State Government it was not possible to issue regular permits to run stage carriages by following the procedure prescribed under sections 57(2) and 57(3) of the Act. We are of the view that the entire policy followed by the State Government and the 1st Respondent is contrary to the general scheme of the Act.

The schemes said to have been published under section 68:D of the Act do not specify any notified routes or any notified areas. It is not possible also to find out from the said scheme whether private operators have been excluded from any particular area of route. The schemes appear to be incomplete and, therefore, are ineffective. In the above situation the Regional Transport authorities whose functions have been delegated under the Act to the State Transport Commissioner, Punjab, cannot decline to grant stage carriage permits on applications properly made to them by intending operators only because the State Government has not announced its transport policy. The State Government cannot have any policy different from or independent of the provisions contained in Chapter IV and Chapter IV:A of the Act.

The Transport Authorities which are statutory authorities have to discharge the duties imposed on them by the Act without waiting for any policy to be announced by the State Government. In doing so primary consideration should be given to the public interest and also to the fundamental right of the citizens to carry on motor transport business in accordance with law. It is not denied that there is a permanent need to grant permits to ply stage carriages on the several routes in the State of Punjab. In the circumstances, the policy adopted by the 1st Respondent, namely, issuing of temporary permits from time to time, appears to be a highly irregular one. It is against the language and spirit of section 62 of the Act, which provides for the grant of temporary permits.

This Court has observed in several decisions that a Regional Transport Authority would be failing in its duty if it grants repeatedly temporary permits to ply stage carriages on routes even though it is aware of the fact that there is a permanent need for granting regular permits in respect of the said routes. The fact that the State of Punjab is thinking of finalising a new transport policy can have no bearing on the question in issue.

We are, therefore, of the view that the 1st Respondent cannot successfully resist the writ petition out of which this appeal arises. In the circumstances we feel that it is appropriate to issue a writ in the nature of mandamus to the Regional Transport authorities in Punjab. whose duties are being discharged by the State Transport Commissioner, Punjab, to take immediate steps to invite applications suo motu under section 57(2) of the Act for issuing regular stage carriage permits to deserving applicants, to grant stage carriage permits to deserving applications who make applications for the stage carriage permits in accordance with law and to dispose of the applications for renewal, if any, made under section 58 of the Act by the holders of stage carriage permits.

We accordingly direct the Regional Transport authorities in the State of Punjab to take immediate steps to invite applications suo moat under section 57(2) of the Act for issuing regular permits to deserving applicants to ply stage carriages in respect of the routes where there is a permanent need, to dispose of the applications made by persons who wish to ply stage carriages on the said routes in accordance with law and to dispose of the applications that may be pending before the Regional Transport authorities for renewal of stage carriage permits under section 58 of the Act. All these steps should be taken within four months from today.

The temporary permits which are now in force shall cease on the expiry of the period of four months and the Regional Transport authorities are directed not to issue any fresh temporary permits where there is permanent need for granting a stage carriage permits after four months."

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