HIGH COURT OF ORISSA: CUTTACK W.P.(C) No. 15843 of 2011 In the matter of an application under Articles 226 & 227 of the Constitution of India. ----------- Private Bus Owners’ Association, Puri Represented by its Secretary Sri Lokanath Pani, At/P.O.- Badasnkha, Gajapati Nagar, P.S. Kumbharpada, Dist: Puri & others … Petitioners -Versus- State of Orissa and others … Opp. Parties For Petitioners : Mr. S.K.Padhi, (Sr. Advocate), M/s. P. Behera & B.A.Prusty. For Opp. Parties : Government Advocate (For O.P. no.1) M/s. Goutam Mishra & D. K. Patra ( for O.P. No. 2). ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 17.10. 2012 B.N.MAHAPATRA,J. This writ petition has been filed with a prayer to quash the decision of opp. Party no. 1-State of Orissa represented by Secretary, Housing and Urban Development Department and opp. Party no.2-Bhubaneswar-Puri Transport Service Limited, a Government of Odisha Company identifying /clubbing the route Jagannath Temple (Puri) to Master Canteen (Bhubaneswar) in the cluster of routes under Annexures-6 and 7 in the city route of Puri Town. Further prayer of the petitioner is to hold and declare that the route Jagannath Temple (Puri) to Master Canteen (Bhubaneswar) cannot be said to be a city route or within the city limit of Bhubaneswar and Puri, so as to provide the city bus services under the scheme Jawaharlal Nehru National Urban Renewal Mission (hereinafter referred to as “JNNURM”) on the ground that the same is illegal and against the object of the National Urban Transport Policy as the said route cannot be a city route. 2. Petitioners’ case is that for implementation of Urban Transport Policy, the Government of India has formulated the scheme JNNURM as per which Government of India has provided 100% central grant to the implementing agency. The Mission under JNNURM is to encourage reforms and fast track planned development of identified cities. The main thrust of the mission will be on infrastructure projects relating to water supply and sanitation, sewerage, solid waste management, road network, urban transport and redevelopment of old city areas with a view to upgrading infrastructure therein. Under the JNNURM Scheme, cities in Orissa i.e. Bhubaneswar and Puri under category ‘C’ are identified and the Government of India has 2 provided 100% assistance to the State Government to procure buses to operate as city bus service within the city limit of Bhubaneswar and Puri. For implementation of above project under JNNURM, the Government of India has appointed Urban Mass Transit Company Limited ( in short, “UMTCL”) a wholly public sector company to help in preparation of project report, detailed design of operational plan and contracting of operators etc. and to provide consultancy service to implementing agencies. The Government of Orissa in Housing and Urban Development Department vide its letter dated 28.7.2009 requested the UMTCL for necessary presentation on the findings of Route Identification Study-City Bus Service in Bhubaneswar and Puri under JNNURM. The UMTCL had conducted detailed survey and presented the routing plan for Bhubaneswar and Puri. After detailed survey of route conducted by the UMTCL and procuring vehicles under the Government of India assistance, the Government of Orissa has taken decision to outsource the operation of city buses to private operators. While taking decision to outsource the operation of the city bus service in favour of the private operators, the State Government identified the cluster of routes where Jagannath temple (Puri) and the Master Canteen (Bhubaneswar) have been included in the cluster of route in Puri city for operation as city bus service. Being aggrieved by the decision taken by the opp. Parties, the present writ petition is filed. 3 3. Mr. S.K. Padhi, learned Senior Advocate, appearing for the petitioners submitted that the petitioners are affected by operation of city bus on the inter-regional route between the Jagannath temple (Puri) to Master Canteen (Bhubaneswar). As the petitioners are providing services on this route and their applications for grant of permit on this route in respect of new vehicles are rejected by the Transport Commissioner on the ground of traffic congestion as the route between Puri and Bhubaneswar is an inter-regional route, city bus service should not be allowed to ply which is against the policy. The Government has not provided any city bus service within the Puri city till date. The operation between Puri and Bhubaneswar is in contravention of transport policy and thereby giving additional benefit to the private operator-opp. Party no.3 ignoring the need of providing basic transport service to the city people. The Government of Orissa being the implementing agency, cannot change the policy of Government of India, the sole object of which is to provide city bus service to the urban people. The UMTC is the joint venture Company of Ministry of Urban Development Department, Government of India and IL & FS engaged only for providing consultancy service for various aspects relating to Urban Transport like providing city bus services on PPS basis, comprehensive mobility plan, intelligent transport system, Project Development, Project Management consultancy, etc. The route identified by UMTC sitting with opp. Party 4 no.2 cannot be said to be an approval of the Central Government. No approval is made by the Government of India for operation of city buses on the inter-regional route between Jagannath Temple to Master Canteen. The route between Jagannath temple, (Puri) to Master Canteen, (Bhubaneswar) cannot be said to be a route within the urban area of either Puri or Bhubaneswar. Opp. Party no.2 is the public sector company created by the government of Orissa to utilize, manage and regulate the city bus service under the JNNURM scheme to provide transport as a basic service to the city people. Therefore, very action of opp. Party no.2 to outsource the operation of the city bus service out side urban limits of Puri and Bhubaneswar is arbitrary and unreasonable and the same is against the scheme. 4. Mr. Padhi, learned Senior Advocate further submitted that the very object of Urban Transport Policy is to ensure safe, affordable, quick, comfortable, reliable and sustainable access for the growing number of city residents to jobs, education, recreation and such other needs within the city. The urban local bodies are responsible for delivering transport services under the JNNURM scheme, the said basic services could be done in partnership with private sector to improve efficiency of operations and lower the over all cost of serving the public and thereby improve financial sustainability. The urban transport could not improve efficiency of transport operation when it engaged in inter 5 regional routes or the route beyond the urban areas. The decision to operate in the route in question i.e. Jagannath Temple, Puri to Master Canteen, Bhubaneswar is bound to have a negative impact on the passengers for transport. Concluding his arguments Mr. Padhi has prayed for grant of the relief sought for in the writ petition. 5. Learned Government Advocate appearing for opp. Party no.1 submitted that the writ petition as laid, is not maintainable in law as well as on facts and the same is liable to be dismissed. Further the contentions made in the writ petition are misconceived, baseless and devoid of any merit. 6. Learned Government Advocate further submitted that consequent upon the suggestion of the Transaction Advisor for City Bus Service engaged by opp. Party no.1 i.e UMTCL, several rounds of discussions have taken place for finalizing the routes. For re-planning of the routes as per the requirement, Bhubaneswar-Puri Transport Service Ltd. was also authorized in the agreement to launch new routes. Although the final route planning as per detailed project report prepared by UMTCL has been shared with the Govt. of India, they have never objected to it. The route planning for development of connectivity between Bhubaneswar and Puri has been prepared keeping in view the public interest and to achieve the following objectives: (1) Linking the two JNNURM Cities of Bhubaneswar and Puri. 6 (2) Linking to important tourist destinations. In due compliance with the orders of the High Court, 15 number of City Buses have already been deployed in Cuttack City to run between Cuttack- Bhubaneswar to cater the needs of the public. It is further submitted that no undue favour has been shown to opp. Party no.3 i.e. the DTS Operator of City Bus Service. Prior to entering into agreement with the operator, a request for proposal was floated for the purpose indicating the coverage of the Route i.e. Bhubaneswar (Master canteen) to Puri (Jagannath Temple). Further it is clarified that only five standard buses have been plying in between Puri and Bhubaneswar out of 125 buses procured under the scheme implying thereby that profit was never the motivation for identifying this route. The Transaction Advisor i.e. UMTCL has identified the route in question i.e. from Master canteen, (Bhubaneswar) to Jagannath Temple, (Puri) and Government has also agreed to the proposal for establishing a link between two important heritage cities and tourists destinations keeping in view the public interest. SPV created by the Government for City Bus Service is in conformity with the guidelines of Government of India under JNNURM. Hence the allegations made by the petitioners are devoid of merit. The route plan has been prepared after detailed traffic and passenger volume study keeping in view the objectives of service to public and commercial viability. 7 7. Mr. G. Mishra, leaned counsel appearing on behalf of opp. Party no.2 reiterating the stand taken in the counter filed by opp. Party no.2 submitted that inclusion of route Jagannath Temple (Puri) to Master Canteen (Bhubaneswar) is in consonance with the objectives sought to be achieved by the JNNURM and will further for providing of safe, convenient and affordable connectivity between Bhubaneswar and Puri and the same will substantially serve the interest of the common man as well as thousands of pilgrims visiting Sri Jagannath Temple. As per the detailed project report, it was proposed that a total of 125 buses would be required for the two cities of Bhubaneswar and Puri, i.e. 100 buses for Bhubaneswar and 25 for Puri to cater to the needs of the public. This was sanctioned by the Ministry of Urban Development at an approximate cost of Rs.15 crores. This had a two fold objective. Firstly, it seeks to introduce a formalized public transport in order to meet the increasing demand for public transport. Secondly, it seeks to bring about a significant improvement in the quality of the public transport system, which presently is in form of three wheelers/small four wheelers, so that a section of the personal motor vehicle users is also attracted to public transport. This two-pronged approach would help in reducing congestion. Taking into account the fact that there is no formal public transport system in both the cities for intra-city public Transport services, it was proposed in the Detailed Project Report that a Special 8 Purpose Vehicle (Bhubaneswar-Puri Transport Services Limited-BPTSL) (opp. Party no.2) would be set up to manage the city bus operations. This will be a joint venture of the Bhubaneswar development Authority (BDA), Bhubaneswar Municipal Corporation (BMC), Orissa State Road Transport Corporation (OSRTC), Puri-Konark Development Authority and Puri Municipality. A break up of the shareholding pattern of these stake holders in this SPV is also provided. The object/role of this SPV is to provide or promote an efficient, economical, reliable and properly coordinated system of city road transport and to plan, establish, regulate and monitor the operations of city bus services etc. Furthermore, it was stated that this SPV will own the buses sanctioned under JNNURM but outsource the operations through a transparent bidding process. The fixed infrastructure in terms of the depot and terminals would be owned and managed by BPTSL. 8. Opp. Party nos. 1 and 2 invited bids from private operators for operation of city bus service on PPP mode in the cities of Bhubaneswar and Puri. Pursuant to this bid, it is submitted that the single bid of opp. Party no.3 was accepted by the Government of Odisha and accordingly opp. Party no.2 entered into an agreement with opp. Party no.3 for operation of city bus services on public private partnership mode. The decision to ply buses between Puri and Bhubaneswar is a considered decision on the part of the Government after many 9 deliberations at the highest level and the same is purely policy matter which may not be subject to judicial review. The Hon’ble apex Court has laid down that the Government must be given a free hand when it comes to policy decisions and the courts can only interfere when the policy decision is arbitrary, discriminatory, mala fide or actuated by bias. In the present case, the Government’s decision is not actuated by any extraneous consideration but only in the interest of public. The said buses would also boost tourism as Puri is a prominent tourist hub and is a part of the famed tourist golden triangle. 9. It is further submitted that one of the primary objectives of running the buses in the present route was to improve the public transport in this route and to bring it at par with other cities like Bangalore, Hyderabad, Chandigarh. Bhubaneswar is a rapidly developing city in terms of industrialization, IT offices, educational hub etc. There is an influx of large number of people from outside the State and Puri being a tourist destination, it is desirable that it should be well connected to the capital city of Bhubaneswar through public transport which is safe, affordable and reliable. By plying of new buses the existing operators are no way harmed and their rights are not curbed in any manner. Their only effort is to stop the new operators from coming in the field as competitors. More operators mean healthy-competition and efficient transport system. Over-crowded buses, passengers are standing 10 in the aisle, persons clinging to the bus-doors in this country. The contention of the petitioner is basically to promote a monopoly and prevent healthy competition. The route has been selected by the UMTCL entrusted for the purpose. The allegation of the petitioner is not correct and true objective of the JNNURM project have been achieved. One of the stated objectives of JNNURM is the planned development of identified cities including peri urban areas, outgrowths and urban corridors leading to disbursed urbanization. 10. From the Detailed Project Report submitted by UMTCL, it is seen that the city of Bhubaneswar is projected to grow towards Pipli and Puri. Keeping this growth in mind and the convenience of the public, the route between Jagannath Temple (Puri) to Master canteen (Bhubaneswar) has been selected and the same would serve the interests of the public immensely. Further more, the matter relates to purely a policy matter and thus the same may not be open for judicial review. Moreover the route has been identified by the UMTCL, New Delhi and opp. Party no.2 has no opinion or comments to offer. The proposal and suggestion given by UMTCL was discussed at various levels and was finalized for operation of bus operation from Puri to Master canteen and the said decision is not arbitrary so as to warrant interference under writ jurisdiction. It is also submitted that no undue favour has been shown to opp. Party no.3 i.e. the Dream Team Sahara, operator of city bus 11 services, because prior to the agreement entered into with the operator, the RFP (Request For Proposal) was floated. The entire process has been handled in a transparent manner. The route was surveyed by UMTCL and on the basis of the report the routes were finalized after detailed discussions. Further the route was also decided as per guidelines of Govt. of India under JNNURM Scheme. The detailed route chart has been prepared on the basis of the report submitted by the UMTCL and keeping in view of volume of passengers and the avowed objective of providing good service to the traveling public. The route has been allotted to Puri on the basis of the survey report conducted by an independent agency. Therefore, the allegation made by the petitioner has no basis at all. Puri is an important tourist place of Orissa and under the City bus services scheme buses have been provided from Capital city of Bhubaneswar to Puri. The scheme has been implemented on the basis of the survey report and also considering the value of the traffic in the route. Keeping in view of present volume of passengers and few numbers of city buses plying on the route, the apprehension seems to be hypothetical only and the new buses would promote healthy competition and ensure better onboard amenities. 11. Mr. Pal, learned Standing Counsel appearing for opp. Party no.4-Transport Commissioner-cum-Chairman, State Transport Authority, Orissa submitted that under the Motor Vehicles Act, 1988, no 12 operator has any right to object to grant of permit, as such the Private Bus Owners’ Association has no locus standi to object to the grant of permits to co-operators. They have filed this writ application challenging the plying of buses between Bhubaneswar to Puri under JNNURM for which the State Government had entered into the agreement with the opposite party no.3 in Public Private Partnership mode for operation of bus services under the Scheme. The writ application is not maintainable as after the new Act i.e. the Motor Vehicles Act, 1988, came into force with effect from 1st July, 1988. Under the provisions of new Act, there is no such provisions that a co-operator can object to the grant of permit. Under the M.V.Act, 1988 grant of permit has been liberalized. Therefore, keeping in view the provisions of new Act, no co-operator has any right under the Act to object the grant of any permit, which has also been upheld by the Hon’ble Supreme Court in their judgment in the case of Mithilesh Garg V. Union of India and others, reported in AIR 1992 SC 443. 12. It was further submitted that buses of BPTSL are owned by the State Government. On the basis of application made by BPTSL to operate bus services between Bhubaneswar to Puri, Temporary Permits have been granted by the State Transport Authority in the interest of traveling public at large. The petitioners-Association has no locus standi to challenge grant of permits by the State Transport Authority to BPTSL 13 as there is no provision under the M.V. Act, 1988 to object grant of permits to co-operator. 13. On the rival contentions advanced by the parties, the only question arises for consideration is as to whether the decision taken by opp. Party nos. 1 and 2 in identifying/clubbing the route Jagannath Temple, (Puri) to Master Canteen, Bhubaneswar in the cluster of routes for operation of city buses is in consonance with the objectives sought to be achieved by the JNNURM and whether that will provide safe, convenience and affordable connectivity between the two cities and will serve the interest of the common men as well as thousands of pilgrims visiting the temple of Lord Jagannath ? 14. The petitioners’ specific case is that the buses in question are being plied in the route “Master Canteen to Jagannath Temple” in contravention of the policy formulated under the JNNURM. The petitioners further contended that the said policy does not bring within its ambit of operations of city buses between Bhubaneswar and Puri. The buses under the policy are only supposed to run within the limits of the city concerned. But the city bus service between Bhubaneswar and Puri is not within the limits of the city of either of the cities. 15. Undisputedly Urban Mass Transit Company Limited is a Government of India undertaking which has been created to implement the scheme JNNURM in different cities all over the country and the said 14 Government of India Undertaking has approved the route in question. It is also undisputed that the permits granted to the individual members of the petitioners’ association have not been cancelled/withdrawn/ suspended. They are not deprived of plying their buses on the route in question. Similar bus services are also provided from Cuttack to Bhubaneswar and Bhubaneswar to Jatni. Bus service in question between the Jagannath Temple (Puri) and Master Canteen (Bhubaneswar) effected by the plying of the buses in question undoubtedly is in the public interest. 16. At this juncture, it is necessary to extract the decision of the Hon’ble Supreme Court in the case of Mithilesh Garg (supra) : “6. The petitioners are existing stage-carriage operators on different routes. They hold permits granted by the Regional Transport Authorities concerned. Mithlesh Garg, petitioner in Civil Writ Petition No. 1345 /1989 has stated that he holds a stage carriage permit and plies his vehicles on the Meerut Parikshitgarh- Hasifabad-Laliana and allied routes under the jurisdiction of the Regional Transport Authority, Meerut. According to him prior to the enforcement of the Act, 23 permit-holders were operating on the said route but thereafter under Section 80 of the At the Regional Transport Authority, Meerut has issued 272 more permits in respect of the same route. Similar facts have been stated in the other writ petitions. As mentioned above the petitioners are permit holders and are existing operators. They are plying their vehicles on the routes assigned to them under the permits. They are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g). of the Constitution of India. There is no threat of any kind whatsoever from any authority to the 15 enjoyment of their right to carry on the occupation of transport operators. There is no complaint of infringement of any of their statutory rights. Their only effort is to stop the new operators from coming in the field as competitors. We see no justification in the petitioners' stand. More operators mean healthy- competition and efficient transport system. Over- crowded buses, passengers standing in the aisle, clinging to the bus-doors and even sitting on the roof- tops are some of the common sights in this country. More often one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black-smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter-public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favoritism in the process of granting permits. Restricted licensing under the old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monoply, adversely affecting the public interest. The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession is without any basis. The transport business is bound to be ironed-out ultimately by the rationale of demand and supply. Cost of a vehicle being as it is the business requires huge investment. The intending operators are likely to be conscious of the economics underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a state is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal. The petitioners who are already in the business want to keep the fresh entrants out of it and as such eliminate the healthy competition which is necessary to bring efficiency in the trade.” 16 17. There is no doubt that public at large are benefited for plying of buses on the route in question under the JNNURM scheme. Therefore, we are of the view that the decision taken by opp. Parties 1 and 2 in identifying/clubbing the route from Jagannath Temple, Puri to Master Canteen, Bhubaneswar in the cluster of