CWP No.13940 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13940 of 2009 Date of decision: 02.08.2011 Punjab Roadways Chandigarh ....Petitioner Versus Arjindera Bus Service Regd. and others ....Respondents CWP No.1252 of 2009 Libra Motors Regd. ....Petitioner Versus State Transport Appellate Tribunal, Punjab and others ....Respondents CWP No.1595 of 2009 Guru Teg Bahadur Cooperative Transport Society Ltd., Patiala ....Petitioner Versus State Transport Appellate Tribunal, Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Jaswinder Singh, DAG, Punjab, Mr. Baldev Kapoor, Advocate, and Mr. H.S. Sawhney, Sr. Advocate, with Mr. Vikas Singh, Advocate, for the petitioner(s). Mr. A.M. Punchhi, Advocate, for Arjindra Bus Service. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J. (ORAL) Since all the writ petitions are arising out of the one and same impugned order dated 1.12.2008 passed by State Transport Appellate CWP No.13940 of 2009 2 Tribunal, Punjab, Chandigarh, therefore, with the consent of the learned counsel for the parties, present petitions are being disposed of together by this judgment. For the sake of brevity, CWP No.13940 of 2009 is being treated as leading case. In the present case, Punjab Roadways, Chandigarh, has challenged the order dated 1.12.2008 passed by State Transport Appellate Tribunal, Punjab, thereby granting permanent permit to respondent No.1 Arjindera Bus Service on the route in question i.e. Mohali-Ludhiana via Samrala. Undisputedly, as per the approved transport scheme dated 9.8.1990 as modified on 21.10.1997, the permits were required to be granted in favour of State Transport Undertakings and private operators in the ratio of 50:50 on the route in question. As per the scheme, out of six total permits for the route in question three were to be granted to the State Transport Undertaking and three to the private operators. Learned Transport Commissioner, Punjab, was pleased to grant one each permit to Punjab Roadways, Ropar, Punjab Roadways, Chandigarh and PEPSU Road Transport Corporation, Ludhiana (total three in favour of the State Transport Undertakings) and one each in favour of Gurdev Tourist Bus Service (Regd.), Samrala, Libra Bus Service Pvt. Ltd, Malerkotla, and Libra Express (Regd.), Ludhiana (three total in favour of private operators). Learned State Transport Appellate Tribunal called a report from the Punjab Roadways, Chandigarh, to the effect as to whether Punjab Roadways, Chandigarh, has lifted the permit for the route in CWP No.13940 of 2009 3 question on a application dated 12.8.2008. Regional Transport Authority, Patiala, vide report dated 21.8.2008 has reported that Punjab Roadways, Chandigarh, has not lifted permit granted to the Punjab Roadways, Chandigarh, for the route in question. Learned Tribunal having observed that permit could only be lifted within six months, therefore, now Punjab Roadways, Chandigarh, cannot be allowed to lift the permit in question, therefore, unlifted permit can be granted in favour of the private operator and has allowed the appeal filed by Arjindera Bus Service and granted permit in faovur of Arjindera Bus Service for the route in question. The short question involved in the present petition is as to whether any permit can be granted in favour of the private operator for the quota fixed for STUs? Hon'ble Apex Court in the matter of Punjab Roadways, Moga Vs. Punja Sahib Bus and Transport Company and others reported in (2010) 5 SCC 235 in paragraphs No.28 to 36 has held as under: - “28. We find it difficult to accept the reasoning of the Tribunal. In our view, there is complete misreading of the provisions of 1990 Scheme as amended and provisions of Chapter VI of the Act. Provisions of this Chapter confer a monopoly on the State in respect of transport service to the partial or complete exclusion of other persons. Section 98 says that provisions of above mentioned Chapter and the Rules or orders made thereunder shall have effect notwithstanding, anything inconsistent contained in Chapter V or in any other law for the time being in force or any instrument having effect by virtue of any such law. 29. Section 99 of the Act deals with preparation and publication of proposal regarding road transport services of an STU which enables the State Government to formulate a proposal for the purpose of providing an efficient, adequate, CWP No.13940 of 2009 4 economical and properly co-coordinated road transport service, by giving particulars of the nature of the service proposed to be rendered, the area or route proposed to be covered and other relevant particulars respecting thereof and the Government is also empowered to publish such a proposal in the gazette in public interest. After calling for objections to the proposed scheme, and examining the same the scheme has to be published in accordance with the provisions of Section 100 of the Act. The scheme once published is law and chapter VI has an overriding effect on Chapter V of the Act and it operates against everyone unless it is modified or cancelled by the State Government. 30. The scheme also provides for a ratio with regard to the grant of permits on the notified routes between STUs and private operators which is fixed based on the assessment made by the State Transport Commissioner, Punjab on the basis of the passenger road transport needs which is legally binding on all. The provisions of the scheme including the list of routes mentioned in the various annexures, and the ratio fixed are statutory in character which cannot be tinkered with by the RTAs and have overriding effect over the powers of RTAs under Chapter V of the Act. 31. The power to cancel the Scheme or modify the Scheme rests with the State Government under Section 102 of the Act and the RTA and the Tribunal have committed a grave error in tampering with the Scheme as well as disturbing the ratio fixed by the Scheme by granting regular permits to the private sector from the quota earmarked for STUs. Once a scheme is approved and published, private operators have no right to claim regular permits to operate their vehicles in the notified area, route or portion thereof upsetting the ratio fixed. Since the scheme makes provision for partial exclusion, the private operators are not completely excluded, they may get regular permits on the notified route or portion thereof in accordance with the terms and conditions laid down in the scheme and within the quota earmarked for them. 32. Therefore, a combined reading of Sections 99, 100 and 104 in the light of Section 2(38) of the Act, makes it clear that once a scheme is published CWP No.13940 of 2009 5 under Section 100 in relation to any area or route or portion thereof, whether in complete or partial exclusion of other persons, no persons other than STUs may operate on the notified area or route except as provided in the scheme itself. Reference can be made to the decisions of this Court in Adarsh Travels Bus Service and Anr. vs. State of U.P., U.P. SRTC v. Anwar Ahmad and Ram Krishna Verms v. State of U.P. 33. Section 104 of the Act specifically restricts the grant of permits in respect of notified area or notified route. The said provision is extracted hereunder:- “104. Restriction on grant of permits in respect of a notified area or notified route--- 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 nor 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. 34. The above mentioned provision states where a scheme has been published under Sub- section 3 of Section 100 in respect of any notified area or notified route, STA or the RTA as the case may be shall not grant any permit except in accordance with the provisions of the Scheme. An exception has been carved out in the proviso to Section 104 stating, where no application for permit has been made by the STU in respect of any notified area or notified route in pursuance of an approved scheme, the STA or the RTA, as the case may be, may grant temporary permits to any person in respect of any such notified area or notified route subject to the condition that such permit shall cease to be CWP No.13940 of 2009 6 effective on the issue of permit to the STU in respect of that area or route. In our view same is the situation in respect of a case where an STU inspite of grant of permit does not operate the service or surrenders the permit granted or not utilizing the permit. In such a situation it should be deemed that no application for permit has been made by the STU and it is open to the RTA to grant temporary permit if there is a temporary need. By granting regular permits to the private operators RTA will be upsetting the ratio fixed under the scheme which is legally impermissible. 35. In Anwar Ahmad this Court had occasion to examine the scope of the proviso to Section 104 and held as follows:- "7. it would, therefore, be seen that where the 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. Thus, the appellant-Corporation has the exclusive right or monopoly to ply their stage carriages and obtain the required permit as per the scheme. The proviso gives only a limited breath of life, namely, until the Corporation puts the vehicles on the notified routes as per the scheme, temporary permits may be granted to private operators. Thereby, it would be clear that temporary inconvenience to traveling public is sought to be averted till the permits are taken and vehicles are put on the route by the appellant. Therefore, the temporary permits will have only limited breath of life. Private operators are attempting to wear the mask of inconvenience of traveling public to infiltrate into forbidden notified area, route or portion thereof to sabotage the scheme" 36. We may point out if the public is put to hardship or inconvenience due to failure on the part of the STUs to operate services inspite of grant of permits for a considerable long time, it is always open to the State Government to modify the scheme and make appropriate changes in the ratio fixed on the basis of passenger road transport needs as assessed by the State Transport Commissioner but such a power is not conferred on the RTA and till that is done no private operator can operate his service on any part or portion of a notified area or notified CWP No.13940 of 2009 7 route upsetting the ratio prescribed in the scheme except on a temporary permit granted under the proviso to Section 104 of the Act. Reference can be made to the judgments of this court in UPSRTC v. Sanjida Banu, Madan Mohan Rao v. Union of India and UPSRTC v. Omaditya Verma for understanding the general purport of such Schemes and the provisions of the Act.” In view of the dictum of the Hon'ble Apex Court, learned Transport Tribunal absolutely had no jurisdiction to grant permit in favour of the private operator i.e. Arjindera Bus Service for the route in question on the ground Punjab Roadways, Chandigarh, has failed to lift the permit within six months. Neither RTA nor STA nor Appellate Tribunal are authorized to grant any permit in violation of the scheme although for the limited period temporary permit could have been granted when STU was unable to lift the permit. Therefore, order impugned cannot be sustained in the eye of law. Present petition is allowed. Order impugned is set aside. Permit granted in favour of Arjindera Bus Service stands set aside. (Alok Singh) Judge August 02, 2011 R.S.