&p-''(^ PETITIONER ^^^ R E S P O NJIEN^TS:: IN Ttt HIGH CQURT OF CHHATTISGARH AT BtLASPUR. Writ Petition No.___S_13_t__/2004 SlllfliS Writ petition Under Articte 226(2} of the C o n stitution of India, <h 1. ^/.& ^^ .<$^^^ ^'-% \^i y ^" .<t^v '"c." ^" ...^' -X 3. 5. IVI/s Kanker Roadways, a partnership firm, through the Partner Shri Preetam Singh Gafcha, near Gandhi Udyan, Civil Lines, Raipur (CG). Versus The State of Chhattisgarh, through the Secretary, Department of Transport, D.R. Bhawan, Raipur (CG). The State TransppFt Authority Raipur (CG). The State of Madhya Pradesh, through the Secretary, Transport Department, Vallabh Bhawan, Bhopal (M.P.). The State Trasport Authority, Moti Mahal, Gwalior (CG). The State of Uttar Pradesh, through the Transport Secretary, Lucknow (U,P.). The Stat? Transport Authority, Luoknow (U.P.). Particylars of the Detitioner: As given inthe cause title. ^3^ HI’"H COURT OF JUDICATURE AT BILASPUR, CHHATI'ISGARH Writ Pefifion No.2761 of 2004 Mohd‘ HasanKhan - Versus - 51'a1'e of Chha‘Hisgarh and five ofhers Wri'r Pzfifion No.4858 of 2004 Mohd. Hasan Khan - Versus - S'ra‘re of Chha‘Hisgarh and five ofhers AND Wrif Peti‘rion No.3794 of 2004 M/s. Kanker Roadways — Versus - Sm're of Chhaftisgarh and five m‘hers p4,. POST FOR ORDER ON A my 2005 Ski/- L..C.BHADOO Judge HIGH COURT OF JUDICA', URE AT BILASPUR. CHHATTIsGARH Wrif Pefi‘rion No.2761 of 2004 Mohd. Hasan Khan - Versus - S‘rafe of Chha‘H’isgarh and five o‘rhers Wrif Pe‘rifion No.4858 of 2004 Mohd. Hasan Khan «I , 1" - Versus — Sfaw of Chhaf‘risgar'h and five ofhers AND Wrif Pefifion No.3794 of 2004 M/s. Kanker' Roadways - Versus — S‘ra're of Chha‘r‘risgarh and five oThers Presem': - Mr. B.K. Rawa‘r, Advoca‘re: For The pe‘l’i‘l‘oners. i Mr. Pramod Kumar Verma’ Addl. Advoca‘re General: For The Sfafe/respondenfs No.1 and 2. Mr. Rajeev Shrivasfava, Sfanding Counsel: For respondenfs No.4 & 5 and also for Infervener — MP. Sfafe Road Transpor‘r Corporafion. Mr. Pankaj Shrivas‘rava, Sfanding Counsel: Mr. B.P. Gupl‘a, Advoca're: For The infervener. For respondenfs No.3 & 6. O R D E R (Passed on L771 Fgbruary, 2005)‘ “k LC. BHADOO, J. 1‘ WriT Pefi'rion No.2761/2004 (Mohd. Hasan Khan vs. S‘l'a‘re of Chha‘r‘l'isgarh and five ofhers); Wrif Pe‘l’i'l'ion No.4858/2004 (Mohd. Hasan Khan vs. Sfa‘le of Chhaffisgarh and five ofhers); and Wrif Pe‘ri‘l'ion No.3794/2004 (M/s. Kanker Roadways vs. Sfa‘re of Chhaffisgarh and five o-l'hers) are Page 2 of 9 being disposed of by This common order, as all fhese pe‘ii‘i'ions involve simiiar questions of faci' and law. . By Wri‘i' Pei'i‘i'ion No.2761/2004 Mohd. Hasan Khan, The pe'iii'ioner, has prayed for direc‘rion fo The STaTes of ChhaTTisgarh, Madhya Pradesh (Si UT‘mr Pradesh To finalize The reciprocal agreemenT for plying The sTage carriages beTween The Three STaTes afTer creo'iion of The STaTe of ChhaTTisgarh and for granT of regular inTer-STaTe sTage carriages permiT afTer due modificaTion of The naTionalizaTion scheme under The provisions of SecTion 102 of The MoTor Vehicles AcT, 1988 (hereinafTer referred To as ‘The AcT'), and also To direcT STaTe TransporT AuThoriTy, Lucknow (U.P.) and STaTe TransporT AuThoriTy, Gwalior (M.P.) To counTersign The Temporary permiTs granTed in favour of The peTiTioner in respecT of rouTe from Bilaspur To Allahabad. The peTiTioner was granTed Temporary permiTs for sTage carriages No.CG-O4/E-0273 and CG-O4/E-0274 for The period 1.9.2004 To 28.12.2004. He has also filed W.P.No.4858/2004 wiTh same relief as on expiry of earlier permiTs on 28‘122004 he has been granTed anoTher Temporary permiTs for The period commencing from 29122004 To 26.42005. In WriT PeTiTion No.3794/2004 filed by M/s. Kanker Roadways, a prayer has been made To direcT The STaTes of ChhaTTisgarh, Madhya Pradesh (Si UTTar Pradesh To finalize The reciprocal agreemenT in respecT of inTer-STaTe rouTe from Raipur To Allahabad, and direcT The STaTe TransporT AuThoriTy, Lucknow (Si 5TaTe TransporT AuThoriTy, Gwalior, To counTersign The Temporary permiTs granTed To The peTiTioner. . Brief facTs necessary for The disposal of These wriT peTiTions, as narraTed in The peTiTions, are ThaT The ersTwhile STaTe of’Mgdhya Pradesh and The STaTe of UTTar Pradesh enTered inTo a reciprocal agreemenT as envisaged under SecTion 88 (5) of The AcT, for creaTion of inTer-STaTe rouTe beTween Bilaspur and Allahabad, and The same was published on 315* May, 1994. However, This rouTe was already operaTing as per The earlier reciprocal agreement As per iTem No.186 of The said noTificaTion, a provision was made for plying Two Trips on The rouTe from Bilaspur To Allahabad via Shahdol and Rewa. AfTer re—organizaTion of The STaTe of Page 3 of 9 Madhya Pradesh under- The M.P‘ Re-organiza'rion Acf, 2000, The new S‘mfe of Chhaf‘l’isgar‘h was carved ou'r from fhe S‘l'a‘re of Madhya Pradesh wifh effect from 1.11.2000, and on crea'rion of The new STaTe, The STa‘re of Chhaffisgarh decided 'ro cancel fhe scheme cf 51'a1'e Transporf Underfaking in The S‘rafe of Chho‘l’fisgarh under- Secfion 102 of fhe Act As per The reciprocal agreemen‘r en1'ered info be'fween fhe S‘rai‘es of Madhya Pradesh & U‘Har Pradesh, fhe buses of Madhya Pradesh Sfa're Road Transpori' Corpora‘rion (M.P.S.R.T.C.) and U'H'ar Pradesh S'i‘a'l'e Road Transporf Corporafion (U.P.S‘R.T.C.) were opera‘ring on The sTrengTh of permiTs granTed under The scheme on Bilaspur To Aiiahabad rouTe as The area falling under The rouTe was na‘l'ionaiized. AfTer creaTion of The STaTe of ChhaTTisgarh, The area of The above rouTe falling under The jurisdicTion of The STaTes of Madhya Pradesh & UTTar Pradesh is sTill under naTionalized scheme and The buses of M.P.5.R.T.C. & U.P.S.R.T.C. are plying‘ However, on accounT of cancellaTion of The scheme under SecTion 102 of The AcT by The STaTe of ChhaTTisgarh, no STaTe TransporT CorpornTion is in exisTence in The STaTe of ChhaTTisgarh, and only privaTe operaTors are operaTing Their buses under The permiTs granTed To Them by The STaTe TransporT AuThoriTy, Raipur. Even The STaTe of ChhaTTisgarh sTopped The buses of M.P.5.R.T.C. and U.P.S.R.T.C. To enTer inTo The TerriTory of The STaTe of ChhaTTisgarh. The peTiTioner herein (Mohd. Hasan Khan) applied for Temporary permiT on The said rouTe and The STA, Raipur, granTed Two Temporary permiTs To The peTiTioner, in The firsT insTance for The period from 1.9.2004 To 28.12.2004, ThereafTer, from 29.12.2004 To 26.4.2005, and The respondenTs i.e. STA, Gwalior & STA, Lucknow, are noT counTersigning Those Temporary permiTs which forged The peTiTioner To file The insTanT wriT peTiTions. . Reply has been filed on behalf of The STaTe of Madhya Pradesh and also The STaTe of UTTar Pradesh, and Their reply is similar To The effecT ThaT since The rouTe falling under The STaTes of Madhya Pradesh 6i UTTar Pradesh is naTionalized rouTe and The buses of M.P.S.R.T.C. & U.P.5.R.T.C. are plying, Therefore, on naTionalized rouTe The privaTe operaTors cannoTi/J Page 4 of 9 be gran'l'ed per-mi‘rs. Moreover, on ‘rhese rou‘res even The priva're opera‘rors of 'I'heir own S‘rafes are no? being gran‘red any permit . I have heard learned counsel for fhe parfies. . The main argumenf of learned counsel for fhe pe‘l'i‘l'ioners was Tha‘l' under The provisions of Seci'ions 87 & 88 (7) as also proviso To Sec‘rion 104 of The ACT, The STA, Raipur, can granT Temporary permiTs. His furTher argumenT was ThaT on accounT of The cancellaTion of naTionalized scheme by The STaTe of ChhaTTisgarh under SecTion 102 of The ACT, The rouTe from Bilaspur To Allahabad, as per The reciprocal agreemenT enTered inTo beTween The ersTwhile STaTe of Madhya Pradesh and The STaTe of UTTar Pradesh, is sTill exisTing, Therefore, The STA, Raipur can granT Temporary permiTs under proviso To SecTion 104 of The AcT. . On The oTher hand, learned counsel for The STaTes of Madhya Pradesh & UTTar Pradesh argued ThaT since The area of The rouTe falling under The jurisdicfion of The STaTes of Madhya Pradesh & UTTar Pradesh is under naTionalized scheme and buses of respecTive CorporaTions of Those STaTes are operaTing, on The naTionalized rouTes The STA, Raipur is noT enTiTled To issue any kind of permiT. Similarly, same is The siTuaTion of The rouTe from Raipur To Allahabad; as The rouTe is from Raipur To Bilaspur, ThereafTer, The same Bilaspur—Allahabad rouTe, which is The subjecT maTTer of WP. Nos.2761/2004 & 4858/2004, and on naTionalized rouTe privaTe operaTors cannoT be granTed permiT, ThaT Too unless and unTil any reciprocal agreemenT is enTered inTo b‘eTween The Three STaTes. . Having heard learned counsel for The parTies, I have perused The record of The Three wriT peTiTions. As far as The facTual posiTion is concerned, There is no dispuTe, and iT is admiTTed ThaT prior To re-organizaTion of The STaTe of Madhya Pradesh as per The reciprocal agreemenT enTered inTo beTween The ersTwhile-STaTes of Madhya Pradesh & UTTar Pradesh, The buses of M.P.S.R.T.C. & U.P.5.R.T.C. were plying on The rouTes from Bilaspur To Allahabad and Raipur To Allahabad. However, The problem sTarTed from 1.11.2000 i.e. afTer creaTion of The STaTe of ChhaTTisgarh Page 5 of 9 bifurcming fhe S'rafe of Modhya Pradesh, and The newly crea‘red S‘ra‘re of Chha1'1'isgarh fook a decision 1'0 abolish The Sfafe Road Transpor‘r Corpora‘rion under Secfion 102 of The Ac‘r. Thereafter, fhe Stafe of Chha‘r‘risgarh sfopped 1'he buses of U.P.5.R.T.C. & M.P.S.R.T.C. from emering im'o The TerriTory of ChhaTTisgar'h To reach Bilaspur or Raipur. Therefore, The quesTion for deTerminaTion before This CourT is wheTher The STA, Roipur, is enTiTIed To issue permiTs in The guise of Temporary inTer-STaTe permiTs on The rouTes exTending up To Aliahabad via Madhya Pradesh, whereas, The rouTe faliing in The area of STaTes of Madhya Pradesh & UTTar Pradesh, is naTionaIized and The buses of respecTive CorporaTions are plying, ThaT Too wiThouT any reciprocai agreemenT beTween Those Two STaTes wiTh STaTe of ChhaTTisgarh. 9. SecTion 87 of The AcT deais wiTh issuance of Temporary permiTs by The STA in The four conTingencies menTioned in clauses (a), (b), (c) & (d) of sub-secTion (1). IT seems ThaT The permiT's in quesTion were issued by The STA, Raipur, under clause (c) of sub—secTion (1) of SecTion 87 of The AcT, which envisages ThaT Temporary permiTs can be issued 7‘0 meef a parficu/ar Temporary need. The provisions of sub-secTion (7) of SecTion 88 of The AcT envisages ThaT “NoTwiThsTanding anyThing conTain'ed in sub-secTion (1), a Regional TransporT AuThoriTy of one region may issue a Temporary permiT under secTion 87 To be valid in anoTher region or STaTe wiTh The concurrence, given generally or for The parTicular occasion, of The Regional TransporT AuThoriTy of ThaT oTher region or of The STaTe TransporT AuThoriTy of ThaT oTher STaTe, as The case may be." S “K Therefore, Temporary permiT can also be granTed’by The TA on a rouTe where regular permiTs are granTed considering The provisions of SecTion 87 of The ACT, of course, subjecT To The concurrence given generally or for The parTicular occasion by The STA of ThaT oTher STaTe for which The Temporary permiT is being granTed. Sub-secTions (5) & (6) of 5ecTion 88 of The AcT deal ‘wiTh The agreemenT by The Two or more STaTes for enTering inTo The reciprocal agreemenT for plying The buses by Those STaTes and publicaTion of The same scheme in The Official GazeTTe. These Page 6 of 9‘ Sec‘h’ons fall under- Chap‘rer-V. Fur'rher, ChapTer-VI deals wifh ‘Special provisions relaTing 1'0 Sfa‘re Transporf Underfakings'. Sec‘rion 99 of 1'he Acf deals wifh ‘Prepar-afion and publica‘rion of proposal regarding road franspor* service of a Sfa're Transporf underfaking‘. Secfion 100 of The ACT deals wifh ‘ObJec‘l‘ion To 1'he proposal‘ and pubHcafion of The scheme. Secfion 101 of The Acf deals wi‘rh ‘Opera‘l'ion of addi‘h‘onal services by a Sfa‘l'e franspor‘r underfaking in cerfain circums‘l'ances'. Secfion 102 of fhe Ac‘l' deals wi1'h ‘Cancella‘l'ion or modifica‘l‘ion of scheme'. Secfion 103 of fhe AcT deals wifh ‘issue of permi‘l‘s ‘l‘o Sia‘l'e franspor‘l under‘rakings’. 5ec‘iion 104 of The AcT deals wiTh ‘ResTricTion on granT of permiTs in respecT of a noTified area or noTified rouTe’ which envisages ThaT “Where a scheme has been published under sub—secTion (3) of secTion 100 in respecT of any noTified area or noTified rouTe, The 5TaTe 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". However, proviso To SecTion 104 of The AcT envisages 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". 10.In This connecTion, The l—ion'ble Apex CourT in The maTTer of M/s. Adarsh Travels Bus Service and anofher v. STaTe of U.Pr." and others reporTed in AIR 1986 Supreme Court 319 held ThaT where The rouTe is naTionalieed and scheme ToTally prohibiTs privaTe operaTors from plying sTage carriages on The rouTe, The privaTe operaTors are noT enTiTled To operaTe Their buses and _no permi'l's can be granTed. Even The permiT cannoT be granTed‘ To a privaTe operaTor on a rouTe overlapping The naTionalized rouTe. Similar view has been Taken by The Apex CourT in The ' maTTer of Karnafaka STaTe Road TransporT Corporation v. Ashrafulla Page 7 of 9 Khan and oihers reporfed in (2002) 2 supreme Cour? Cases 560 in which H has been held Thaf The Scheme published nufiomhzing #he rou‘re is a law, which has ‘ro be profec'red and preserved in public inferesf. Fermi? cannof be granfed for a non—no‘l’ified roufe, which overlaps The no‘rified roufe or a porfion of a noiified route. 11. If is admiifed position iha‘r The pam‘ of rou‘l'e‘ from Bilaspur To Allahabad and Raipur To Allahabad, which falls under The jurisdici‘ion of The Sfafes of Madhya Pradesh and Uffar Pradesh, is naiionalized. Sec‘iion 98 of the ACT envisages Thai “The provisions of fhis Chap‘l’er and The rules and orders made fhereunder shall have effecf no‘rwifhsfanding anyfhing 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." Therefore, as per the provisions of Section 98 of the Act, which falls under Chapter—VI (Special Provisions Relating to State Transport Undertakings), it has the overriding effect over Sections 87 at 88 of Chapter V of the Act. In the circumstances, on the nationalized route/ notified route the STA, Raipur, was not authorized to grant temporary permit to private operators under Section 87 or Section 88 (7) of the Act for the area of nationalized route, which falls under the jurisdictions of the States of Madhya Pradesh & Uttar Pradesh. 12.Now, coming to the argument advanced by learned counsel for the petitioners that as per proviso to Section 104 of the Act, till the vacancy on the route from Bilaspur to Allahabad and Raipur to Allahabad, the STA, Raipur, was authorized to issue temporary permits to the petitioners, looking to proviso to Section 104 of the Act, the argument prima facie appears to be convincing. But, if it is examined on merits in accordance with the provisions of the Motor Vehicles Act, 1988, referred in the earlier part of this order, then the some is devoid of merit for the reason that as per proviso to Section 104 of the Act, temporary permits can be granted only in the circumstances where the State transport undertaking had not moved any application for grant of permit on that route‘ Here the 'circumstances are entirely different. As has been mentioned in thel‘ \ i Page 8 of 9 earlier par? of fhis order, earlier f0 reorganizafion of fhe STaTe of Madhya Pradesh and coming info exis‘l'ence of fhe 51'a1'e of Chho‘rTisgarh, fhe buses of M.P.S.R.T.C. and U.P.S.R.T.C. were opera‘ring, and offer coming info opera‘rion of The M.P. Re-organiza‘rion ACT, and coming info exis‘rence of The S'rq‘re of Chhaffisgarh, The Sfafe of Chhaffisgarh has abolished fhe Scheme under Secfion 102 of fhe Ac? i.e. fhe nofified rou‘i'e is nof There Thu-r is fhe roufe s’rarfing from Raipur up To enfr-y info The Sfafe of Madhya Pradesh and roufe sfar‘ring from Bilaspur up To enfry info fhe Sfafe of Madhya Pradesh, are de—nofified. Therefore, by necessary implicafion, fhe $fafe of Chhoffisgarh by de-nofifying fhe roufe has simiiariy canceiied fhe reciprocal agreemenf as far as fhe same relafes fo fhe ferrifory of fhe Sfafe of Chhoffisgarh. In fhe circumsfances, unless and unfil, in fhe firsf insfance all fhe fhree Sfafes enfer info reciprocal agreemenf, fhe STA, Raipur, is nof enfifled fo granf permifs unilaferally for fhe ferrifories of Madhya Pradesh and Uffar Pradesh. 13. Even during fhe course of fhe argumenfs, learned counsel for fhe respondenfs i.e. Sfafes of Madhyu Pradesh & Uffar Pradesh, submiffed fhaf fheir Underfakings are ready fo ply fheir buses on fhe same roufe subjecf fo permission by fhe Sfafe of Chhaffisgarh, which fhey are nof granfing. Therefore, fhis sifuafion has been creafed by fhe Sfafe of Chhaffisgarh ifself and looking fo fhe above facfs and circumsfances of fhe case, proviso fo Secfion 104 of fhe Acf is nof applicable in fhe case. If is nof fhe case where fhe Sfafe Road Transporf Corporafion/ Underfaking is nof making any applicafion for fhe permif. The permif was already wifh fhe M.P.S.R.T.C. and U.P.S.R.T.C., buf on accounf of de— nofifying fhe roufe in respecf of fhe ferrifory‘lof fhe Sfafe of Chhaffisgarh, fhe Sfafe of Chhaffisgarh is nof allowing fhe M‘P.S.R.T.C. and U.P.5.R.T.C. fo operafe fheir buses. 14’ In fhe given sifuafion, as fhe area of fhe roufe falling in fhe ferrifories of Madhya Pradesh and Uffar Pradesh is nofified roufe/nafionalized roufe, fherefore, as per fhe provisions confained in Secfion 104 of fhe Acf, fhe STA, Raipur, is nof aufhorized fo issue even femporary permifs on fhe l Page 9 of 9 rou‘re, and looking To The no‘Hfied rou‘re, 'rhe STA, Lucknow & STA, Gwalior, cannot be direcfed To coun‘rer'sign fhe Temporary permi‘rs issued in favour of The pefifioners. Moreover, The Temporary per-miTs issued in favour of The peTiTioners are in facT regular permiTs in The guise of Temporary permiTs, wiThouT commenTing upon Them I am leaving The same open for fuTure adjudicaTion in appropriaTe case. 15. Now, coming To The quesTion of issuance of direcTions To The STaTes of ChhaTTisgarh, Madhya Pradesh & UTTar Pradesh, for enTering inTo reciprocal agreemenTs for creaTion of rouTe from Bilaspur To Allahabad and Raipur To Allahabad, no such wriT of mandamus can be issued To The respondenTs/STaTes for The reason ThaT The policy decision has already been Taken by The STaTe of ChhaTTisgarh noT To operaTe The STaTe UnderTaking buses. Under The public scheme The area falling under The 5TaTes of Madhya Pradesh & UTTar Pradesh is noTified rouTeand iT is for The concerned 5TaTes To consider The need and convenience of The general public and commuTers To Take appropriaTe decision looking To The grounds, siTuaTion and demand of public’ ParTicularly, such direcTion cannoT be issued on The requesT of a TransporTer who himself is asking for The permiT as he himself is The inTeresTed person in permiTs. 16. Therefore, in The resulT, The wriT peTiTions are devoid of meriT, and The same are liable To be dismissed‘ Accordingly, The wriT peTiTions are dismissed. No cosTs. Ski/— LTC.BHADOO Judge Soma