IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 637 of 2005 with connected CWPs No. 723/2004, 724/2004, 1096/2005, 1097/2005,113/2005, 114/2005, 186/2005, 306/2005, 307/2005, 44/2005, 489/2005, 491/2005, 629/2005, 65/2005, 718/2005, 719/2005, 748/2005, 749/2005, 754/2005, 88/2005, 518/2005, 1084/2006, 1085/2006, 1326/2006, 89/2005, 488/2006, 59/2006, 661/2006, 479/2007, 481/2007 & 620/2008 Judgment reserved on: 9.4.2008 Date of Decision: June 6, 2008 ________________________________________________________________ 1.CWP No. 637 of 2005. Shiv Kumar Kaul … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 2.CWP No. 723 of 2004. Durga Dass … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Atul Jhinga & Ms. Shilpa Sood, Advocates. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. ______________________________________________________________ - 2 - 3.CWP No. 724/2004 Pawan Kumar … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Atul Jhinga & Ms. Shilpa Sood, Advocates. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 4.CWP No. 1096/2005 Rajiv Mahajan … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 5.CWP No. 1097/2005 G.L. Galoda … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 6.CWP No. 113/2005 M/s Mahajan Bus Service … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Anuj Nag, Advocate. - 3 - For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 7.CWP No. 114/2005 M/s Mahajan Bus Service … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 8.CWP No. 186/2005 Kamal Kishore Mahajan … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Sanjay Jaswal, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 9.CWP No. 306/2005 Dehra Friends Transport Society … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 10.CWP No. 307/2005 The Beas View Ex-servicemen … Petitioner(s) Versus - 4 - State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 11.CWP No. 44/2005 Pritam Chand ` … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Anuj Nag, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 12.CWP No. 489/2005 M/s National Bus Service … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Anuj Nag, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 13.CWP No. 491/2005 M/s New National Bus Service … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ - 5 - 14.CWP No. 629/2005 Rajan Bus Service ` … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaul, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 15.CWP No. 65 of 2005 Kusum Sood … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Suneet Goel, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 16.CWP No. 718 of 2005 Rajinder Rana … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaul, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 17.CWP No. 719 of 2005 Vinay Rana … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaur, Advocate. - 6 - For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 18.CWP No. 748 of 2005 Devender Khosla … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 19.CWP No. 749 of 2005 Ravi Chaddha … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 20.CWP No. 754 of 2005 V.K.Mahajan … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 21.CWP No. 88 of 2005 Satish Kumar … Petitioner(s) Versus - 7 - State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaul, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 22.CWP No. 518 of 2005 Asha Kumari … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaul, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 23.CWP No. 1084 of 2006 K.K.Aggarwal … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaul Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 24.CWP No. 1085 of 2006 Happy Awasthiy … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaul, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ - 8 - 25.CWP No. 1326 of 2006 Bharati Bus Service` … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 26.CWP No. 89 of 2005 Sanjay Kumar Vig … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaul, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 27.CWP No. 488 of 2006 Naresh Kareer … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Suneet Goel, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 28.CWP No. 59 of 2006 Naresh Pal Singh … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Shashi Kant Sharma, Advocate. - 9 - For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 29.CWP No. 661 of 2006 M/s Sainik Bus Service … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaul, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 30.CWP No. 479 of 2007 Kuldeep Kumar … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 31.CWP No. 481 of 2007 Sansar Chand … Petitioner(s) Versus State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Vinay Kuthiala, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. _______________________________________________________________ 32.CWP No. 620 of 2008 Mandeep Singh … Petitioner(s) Versus - 10 - State of H.P. & ors. … Respondent(s). For the Petitioner (s) : Mr. Naresh Kaul, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General. Mr. N.K.Thakur, Advocate, for HRTC. ______________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? Yes For the Petitioner (s) :M/s Vinay Kuthiala, Ajay Sharma, Suneet Goel, Naresh Kaul, Sanjay Jaswal & Shashi Kant Sharma, Advocates in all the CWPs. For the Respondents : Mr. R.M.Bisht, Deputy Advocate for the State & Mr. N.K.Thakur, Advocate for HRTC ________________________________________________________________ Deepak Gupta, J. All the aforesaid writ petitions are being disposed of by this judgment since common questions of fact and law arise in these cases. Briefly stated the facts of the case are that all the petitioners are running transport business in the State of Himachal Pradesh. All of them have more than one stage carriage/bus. The previous practice being followed in this State was that whenever a route permit was issued to a transporter who had more than one vehicle, the registration numbers of all the vehicles would be mentioned in the route permit. This meant that the transporter could depute any one of his buses on any - 11 - route. The State thereafter took a decision to grant one route permit for one specific bus only and the practice of mentioning the registration number of all the vehicles available in the fleet with the transporter was discontinued. In some cases the respondent- transport authority without even issuing notice to the transporters varied the terms of the route permit and the registration numbers of all buses in the fleet of the operator were removed and only the registration number of one bus was mentioned. In some cases notices were issued and after considering the reply of the transport operator the similar variation was made. In all these cases, the petitioners who are transport operators have challenged the action of the respondent- transport authority in varying the conditions of the notice. It is contended that the terms and conditions of the route permit could not be changed without notice of the permit holder. It is also contended that the State does not have any authority in terms of the Motor Vehicles Act, 1988 the Central Motor Vehicles Rules or the H.P. Motor Vehicles to prescribe a condition that the route permit should be in respect one bus alone. It is contended that even otherwise the interest of the public is better served in case - 12 - the entire fleet is mentioned in the route permit. According to the petitioners, the practice of mentioning more than one bus on the combined route permit is the best practice which was being followed for long. This allows the permit holder to depute any bus on any route. Therefore, if for some reason one bus cannot be deputed on a route, another bus can be deputed and as such the public does not suffer. It is also contended that the action of the State is against the aims and objects of the Act and lastly it is contended that the action of the State is discriminatory inasmuch as the public sector undertaking, i.e, Himachal Road Transport Corporation (HRTC) is still being given route permits for the entire fleet whereas in respect of private transporters, only one route permit per bus is being issued. To appreciate the rival contentions of the parties, it would be appropriate to refer to certain provisions of the Motor Vehicles Act, 1988 hereinafter referred to as the Act. Section 55 of the Act provides that no vehicle can be used as a transport vehicle, save and except, in accordance with the conditions of the permit granted by - 13 - the Regional or State Transport Authority. In the present case, we are concerned with stage carriage permits. Section 70 of the Act provides that an application for a permit in respect of a stage carriage or as a reserve stage carriage shall be filed in a particular manner. The details required to be given are the route or routes and the area or areas to which the application relates; the type and seating capacity of each such vehicle; the number of trips propose to be provided; the number of vehicles intended to be kept in reserve; the arrangements for servicing, repairs and maintenance of the vehicles etc., and such other matters as may be prescribed. Section 71 lays down the procedure which should be followed by the Regional Transport Authority while considering the application for grant of permit. Section 72 deals with the grant of state carriage permit. Since all the arguments revolve around the interpretation of this section, the same is being quoted in extenso:- 72. Grant of stage carriage permit. (1) Subject to the provisions of section 71, a Regional Transport Authority may, on an application made to it under section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: Provided that no such permit shall be granted in respect of any route or area not specified in the application. - 14 - (2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under this Act, attach to the permit any one or more of the following conditions, namely:— (i) that the vehicles shall be used only in a specified area, or on a specified route or routes; (ii) that the operation of the stage carriage shall be commenced with effect from a specified date; (iii) the minimum and maximum number of daily trips to be provided in relation to any route or area generally or on specified days and occasions; (iv) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area; (v) that the stage carriage shall be operated within such margins of deviation from the approved time-table as the Regional Transport Authority may from time to time specify; (vi) that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down except at specified points; (vii) the maximum number of passengers and the maximum weight of luggage that may be carried on the stage carriage, either generally or on specified occasions or at specified times and seasons; (viii) the weight and nature of passengers' luggage that shall be carried free of charge, the total weight of luggage that may be carried in relation to each passenger, and the arrangements that shall be made for the carriage of luggage without causing inconvenience to passengers; (ix) the rate of charge that may be levied for passengers' luggage in excess of the free allowance; (x) that vehicles of a specified type fitted with body conforming to approved specifications shall be used: Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operating on that date; (xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles; (xii) the conditions subject to which goods may be carried in the stage carriage in addition to or to the exclusion of passengers; (xiii) that fares shall be charged is accordance with the approved fare table; (xiv) that a copy of or extract from the fare table approved by the Regional Transport Authority and particulars of any special fares or rates of fares so approved for particular occasions shall be exhibited on the stage carriage and at specified stands and halts; - 15 - (xv) that tickets bearing specified particulars shall be issued to passengers and shall show the fares actually charged and that records of tickets issued shall be kept in a specified manner; (xvi) that mails shall be carried on the vehicle subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified; (xvii) the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions; (xviii) the conditions subject to which vehicle may be used as a contract carriage; (xix) that specified arrangements shall be made for the housing, maintenance and repair of vehicle; (xx) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use; (xxi) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority; (xxii) that the Regional Transport Authority may, after giving notice of not less than one month,— (a) vary the conditions of the permit; (b) attach to the permit further conditions: Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof; (xxiii) that the holder of a permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may from time to time prescribe; (xxiv) any other conditions which may be prescribed.” A reading of the aforesaid section shows that the Regional Transport Authority can lay down any of the conditions mentioned therein including the condition that the vehicle shall be used only in a specified area or on any specified route or routes. The copies of the time table - 16 - of the stage carriage as approved by the Regional Transport Authority (for short: RTA) have to be exhibited on the vehicle. Under this section, the RTA is entitled to lay down the conditions mentioned in Section 72 (2)(i) to (xx). Clause (xxiv) of sub-section (2) of Section 72 provides that the RTA can also incorporate any other conditions in the route permit which may be prescribed. It is, therefore, apparent that in addition to the conditions laid down in Section 72 (2)(i) to (xx) the RTA can attach such a condition in the permit which is prescribed. Obviously, such a condition must be prescribed by the competent authority in accordance with the provisions of the Act and the rules. Section 84 lays down general conditions attaching to all permits which obviously includes the permits in respect of stage carriages also. This section reads as follows:- 84. General conditions attaching to all permits. The following shall be conditions of every permit— (a) that the vehicle to which the permit relates carries valid certificate of fitness issued under section 56 and is at all times so maintained as to comply with the requirements of this Act and the rules made thereunder; (b) that the vehicle to which the permit relates is not driven at a speed exceeding the speed permitted under this Act; (c) that any prohibition or restriction imposed any fares or freight fixed by notification made under section 67 are observed in connection with the vehicle to which the permit relates; - 17 - (d) that the vehicle to which the permit relates is not driven in contravention of the provisions of section 5 or section 113; (e) that the provisions of this Act limiting the hours of work of drivers are observed in connection with any vehicle or vehicles to which the permit relates; (f) that the provisions of Chapters X, XI, and XII so far as they apply to the holder of the permit are observed; and (g) that the name and address of the operator shall be painted or otherwise firmly affixed to every vehicle to which the permit relates on the exterior of the body of that vehicle on both sides thereof in a colour or colours vividly contrasting to the colour of the vehicle centred as high as practicable below the window line in bold letters. A bare perusal of Section 72 (2) (xxii) clearly shows that the RTA may after giving notice of not less than one month either vary the conditions of the permit or attach further conditions to the permit. It is clear that once a route permit has been issued then the conditions of the permit cannot be varied without giving notice of one month to the permit holder. The provisions of this section are in consonance with the rules of natural justice. Therefore, whenever any modification is to be done in the route permit which is likely to affect the rights of the permit holder, he must be given a notice and he has the right to put forth his case in reply to the notice within one month thereafter. This is a statutory protection given to the permit holder and in our considered opinion, this salutary provision is couched in mandatory language and any action taken in violation has to be struck down as illegal. - 18 - Therefore, in all cases, where the conditions of the route permit have been varied without giving notice to the permit holder, the action of the respondent-RTA is arbitrary, illegal and ultra vires of Section 72 (2)(xxii) and is, therefore, struck down. Coming to the cases where variations in the route permit has been made after issuance of such notice(s). Even in these cases we are of the considered view that the conditions now sought to be attached to the route permit cannot be attached. The only condition which can be attached to a stage carriage route permit are mentioned in Section 72 which section has been quoted above in extenso. General conditions can be imposed under Section 84. Both these provisions do not empower the transport authority to prescribe a condition that each route permit will be qua one bus only. The respondents have failed to point out any provision in the Act or the rules whereby such a condition can be incorporated in the route permit. On behalf of the respondents, the main case set up is that the transport department in order to benefit the general public had decided that route and time table of the private buses should be displayed on the body of the - 19 - bus. According to the respondents-State, complaints were being received from the general public that the transporters do not adhere to the routes and time tables prescribed. The State also felt that the transporters were misusing the combined or composite route permit(s) to avoid payment of taxes. The so called grounds which have been taken may or may not be correct. We are, at this stage, not commenting on the correctness of the same. However, we are clearly of the view that the authority which lays down a condition in a route permit must show the power under which such a condition has been laid down. It would be pertinent to mention here that the State of H.P, has framed the H.P. Motor Vehicles Rules, 1999. Rule 63