IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 8817 of 2007 DATE OF DECISION : 28.03.2008 Kalgidhar Motors Regd., Bus Stand, Ludhiana .... PETITIONER Versus The State Transport Appellate Tribunal, Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Baldev Kapoor, Advocate, for the petitioner. Mr. N.D.S. Mann, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. The petitioner has filed this petition under Article 226 of the Constitution of India for quashing of the order dated 25.5.2005, passed by the State Transport Appellate Tribunal, Punjab, Chandigarh (hereinafter referred to as `the Appellate Tribunal'), dismissing the appeal filed by the petitioner against the order dated 20.9.2000, passed by the State Transport Commissioner, Punjab, exercising the powers of the Regional Transport Authority, Jalandhar (hereinafter referred to as `the STC'), whereby while considering the claim of all the eligible applicants, after rejecting the claim of other applicants, including the petitioner, one stage carriage permit for CWP No. 8817 of 2007 -2- plying two return trips daily each was granted in favour of the Punjab Roadwyas, Nawanshahar and Sunrise Transport Company Regd., Ludhiana, (respondents No.3 and 4 respectively herein) on Nawanshahar-Ludhiana via Bohara, Aur, Nagar, Phillaur route (hereinafter referred to as `the route in question'). In the present case, the STC got published a notice in the Motor Transport Gazette Weekly, Chandigarh, dated 1.1.1999 and invited applications for the grant of two stage carriage permits with four return trips daily on the route in question. In response to the said notice, 71 applications (including the application of the petitioner) were received. Since the single length of the route in question is 61 Kms., out of which portion of 40 Kms. falls on the district roads and the remaining portion of 21 Kms., on the National Highway. The STC, keeping in view the Transport Scheme dated 9.8.1990, decided to grant one permit with two return trips daily each in favour of the State Transport Undertaking and private operator. Further, the STC also took the decision to grant one permit only to the new entrants to avoid monopolistic control of the existing operators in the transport industry. Thereafter, after comparing the inter-se merits of all the eligible candidates, the STC granted one permit with two return trips daily each in favour of respondents No.3 and 4. Against the aforesaid order, various unsuccessful applicants, including the petitioner, filed separate appeals. During the pendency of those appeals, the petitioner was granted one regular stage carriage permit CWP No. 8817 of 2007 -3- on Ludhiana to Fatehgarh Sahib via Khanna route, which is valid upto 13.8.2009. Keeping in view this fact, the Appellate Tribunal dismissed the appeal of the petitioner, while coming to the conclusion that the STC has rightly granted one permit to respondent No.4, finding it more suitable applicant. Against the said order, the instant petition has been filed. Learned counsel for the petitioner raised sole contention that as per the remarks dated 9.1.2007 by the Secretary, Regional Transport Authority, Jalandhar, on the application dated 20.12.2006 (Annexure P-6) moved by the petitioner, respondent No.3 has not lifted the permit, which was granted to it on the route in question, therefore, the said permit should be granted to the petitioner. Counsel for the petitioner contends that since the route in question does not fall on any monopoly route of the State Transport Undertaking, therefore, the said permit, if not lifted by respondent No.3, a State Transport Undertaking, can be granted to the private operator, as there is no such bar in the Transport Scheme dated 9.8.1990, which has been modified vide notification dated 21.10.1997 to give such permit to the private operator. While referring to the written statement, filed on behalf of respondent No.3, counsel for the respondents submitted that respondent No.3 has not surrendered its mileage on the route in question. It has already applied for lifting the permit granted to it, by depositing the requisite fee and the said matter is pending before the Regional Transport Authority, CWP No. 8817 of 2007 -4- Jalandhar, who is not considering the prayer because of the pendency of the case. Counsel for the respondents submits that respondent No.3 is willing to lift the permit granted to it. After hearing counsel for the parties, we do not find any force in the contention of learned counsel for the petitioner that the one permit granted in favour of respondent No.3, which according to the petitioner has not been lifted so far, should be granted to the petitioner. Undisputedly, out of two permits, the STC decided to grant one permit in favour of respondent No.3, a State Transport Undertaking, keeping in view the Transport Scheme dated 9.8.1990, which provides ratio of 40:60 to be shared by the State Transport Undertakings and the private operators, on the District Road and National Highway. One permit was decided to be granted to the private operators, who were new entrants in the business. The petitioner has claimed only against the said permit and both the authorities, while considering the claim of all the eligible applicants in that category, have granted the permit to respondent No.4, after rejecting the claim of the petitioner. In the appeal filed by the petitioner before the Appellate Tribunal, the petitioner claimed that instead of respondent No.4, it was more suitable for grant of permit in that category. For the first time, in this writ petition, the petitioner is raising the point that it should be granted the permit, which has not been lifted by respondent No.3, though in the reply, respondent No.3 has specifically stated that they have already applied for lifting the permit with requisite fee and their prayer is pending. CWP No. 8817 of 2007 -5- In view of the aforesaid facts, we are of the opinion that the claim of the petitioner on the permit granted in favour of respondent No.3 cannot be allowed. Even otherwise, as per the provision of Section 104 of the Motor Vehicles Act, 1988, 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 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 the said notified area or notified route in pursuance of an approved scheme, the State Transport Authority may grant the said permit temporarily to the private operator 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 route. Undisputedly, a transport scheme has been formulated, approved and notified by the State Government in exercise of the power under sub section (3) of Section 100 of the Act, in respect of the notified route, which prescribe the ratio, on which the State Transport Undertakings and the private operators will be permitted to operate on the District or National Highway. In pursuance of the said scheme, out of two permits, the STC has decided to grant one permit to respondent No.3, a State Transport Undertaking. If that permit has not been lifted or has been surrendered, for the time being the same can be granted to a private operator only on temporary basis, subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Transport CWP No. 8817 of 2007 -6- Undertaking in respect of that route. Since in the instant case, respondent No.3, a State Transport Undertaking, is willing to lift the said permit and its prayer for the same is pending before the appropriate authority, the said permit cannot be granted to the petitioner, a private operator, even on temporary basis. In view of the above, there is no merit in the instant petition and the same is, hereby, dismissed. ( SATISH KUMAR MITTAL ) JUDGE March 28, 2008 ( RAKESH KUMAR GARG ) ndj JUDGE