IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 18777 of 2006 DATE OF DECISION: APRIL 02, 2008 Kuldeep Singh .....PETITIONER Versus The Secretary, R.T.A.,Jalandhar and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE RAKESH KUMAR GARG --- Present: Mr. R.S.Sharma, Advocate, for the petitioner. Mr.N.D.S.Mann, Addl.A.G.,Punjab, for respondents No.1 to 3. Mr.Baldev Kapoor, Advocate, for respondent No.4. .. SATISH KUMAR MITTAL, J. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India for setting aside/modifying the order dated 10.11.2006 passed by the State Transport Appellate Tribunal (hereinafter referred to as `the Appellate Tribunal'), whereby the permit granted to the petitioner by the State Transport Commissioner, exercising the powers of the Regional Transport Authority, Jalandhar (hereinafter referred to as `the STC') vide order dated 16.8.2004 has been cancelled and the same permit has been ordered to be granted in favour of respondent No.4. In the present case, one stage carriage permit for plying one return trip daily on Amritsar to Faridkot via Tarn Taran, Harike and Zira route (hereinafter referred to as `the route in question'), which was earlier granted to Punjab Roadways, Amritsar Depot, was surrendered. For re- granting the said permit, the applications were invited by the STC by C.W.P. No. 18777of 2006 -2- publishing a notice in the Motor Transport Gazette Weekly, Chandigarh dated 1.11.2002. In response to the said notice, 56 applications were received. Subsequently, the contents of those applications were got published and objections were invited, but no objection or representation was received from any quarter. When the matter was taken up for consideration by the STC on 16.10.2003, 19 applicants did not appear in support of their claim. Out of the remaining 37 applicants, 25 applicants were the new entrants and 12 were existing operators. The STC decided that in order to inject new blood in the transport industry and to avoid the monopolistic control of the private operators, the permit should be granted to a new entrant. Accordingly, the STC after taking into consideration the comparative merit of the new entrants, granted the said permit to the petitioner vide order dated 16.8.2004 while observing that he was the most suitable and deserving applicant for grant of the said permit on the route in question as he was a Matriculate holding HTV driving licence. Feeling aggrieved against the aforesaid order, three appeals were filed before the Appellate Tribunal, including respondent No.4, who was an existing operator, on the ground that the stage carriage permit in question was wrongly granted to the petitioner as he was not a new entrant as he was already holding two permits and plying three buses with a daily mileage of 528 Kms. The Appellate Tribunal vide its order dated 10.11.2006 dismissed the two appeals filed by Harbans Lal and Sawinder Singh on limitation. However, the appeal filed by respondent No.4 was allowed and the order dated 16.8.2004 passed by the STC granting one stage carriage permit in favour of the petitioner was cancelled on the ground that he C.W.P. No. 18777of 2006 -3- could not have been treated as a new entrant because admittedly he was already holding two permits and plying three buses with a daily mileage of 528 Kms. After canceling the permit granted to the petitioner, the Appellate Tribunal granted the same to respondent No.4, who was an existing operator, while observing that respondent No.4 has got 29 permits and plying 36 buses with a daily mileage of 10236 Kms. and has a good experience. Against the said order, the instant petition has been filed by the petitioner. Learned counsel for the petitioner argued that the appeal filed by respondent No.4 before the learned Appellate Tribunal was also barred by limitation, but the Appellate Tribunal has illegally held that the appeal filed by respondent No.4 was within limitation. Secondly, learned counsel for the petitioner argued that on merits also the order passed by the Appellate Tribunal is contradictory in itself as on one hand the Appellate Tribunal has cancelled the grant of permit to the petitioner on the ground that he was an existing operator, and on the other hand, after canceling the permit of the petitioner, the Appellate Tribunal has granted the same permit to respondent No.4, who is admittedly also an existing operator. Therefore, the learned counsel submits that the impugned order passed by the Appellate Tribunal is liable to be set aside. Learned counsel for the petitioner further argued that the petitioner has been wrongly considered by the Appellate Tribunal as an existing operator. According to the learned counsel, the STC had considered the petitioner as new entrant because he was having no stage carriage permit for the route in question. Merely because he was holding C.W.P. No. 18777of 2006 -4- two permits for different routes, he could not have been considered as an existing operator. The status of an operator as an existing operator is to be seen on the route in question. On the other hand, learned counsel for respondent No.4 submitted that once the permit granted to the petitioner was cancelled, respondent No.4 was the only available applicant as the two appeals filed by the other applicants were dismissed on the point of limitation, therefore, the learned Appellate Tribunal has rightly granted the permit to respondent No.4, though he was an existing operator. Learned counsel submitted that under law there is no bar that the said permit could not have been granted to an existing operator. After hearing the counsel for the parties, we are of the opinion that the impugned order passed by the Appellate Tribunal is required to be partly modified. The first contention raised by the learned counsel for the petitioner that the appeal filed by respondent No.4 before the Appellate Tribunal was time barred, does not have any force. Undisputedly, in this case the STC after considering the claims of various applicants, including respondent No.4, in the meeting held on 16.10.2003, reserved the order. Subsequently, the order was pronounced on 16.8.2004 in absence of respondent No.4. Undisputedly, the said order was never communicated to respondent No.4. It is admitted case that on 11.1.2005, respondent No.4 filed an application for certified copy which was supplied on the same date and the appeal was filed on 17.1.2005. While taking into consideration all these facts, the Appellate Tribunal has rightly held that the appeal filed by respondent No.4 against the order dated 16.8.2004 C.W.P. No. 18777of 2006 -5- passed by the STC was within limitation. As far as cancellation of the permit of the petitioner is concerned, we do not find any illegality in the impugned order. Undisputedly, the STC while taking into consideration the facts and circumstances of the case and number of applications, and in order to inject new blood in the transport industry and to avoid the monopolistic control of the private operators, had decided to grant the surrendered permit in question to the new entrant. In spite of coming to the said conclusion, the permit was granted to the petitioner, who was already holding two permits and plying three buses with a daily mileage of 528 Kms. The new entrant means a person, who is having no stage carriage permit or is not previously engaged in the transport business. A person who is having many permits, can not be treated as a new entrant merely on the ground that he is not operating on the route in question. Therefore, the Appellate Tribunal was right while canceling the grant of stage carriage permit to the petitioner on the ground that the STC had wrongly treated the petitioner as new entrant because he was already having two permits and plying three buses with a daily mileage of 528 Kms.on different routes. The contention of the learned counsel for the petitioner that the petitioner should have been treated as new entrant because he was having no permit for the route on which the permit in question is to be granted, can not be accepted. However, we find force in the contention of the learned counsel for the petitioner that the impugned order passed by the Appellate Tribunal is contradictory. On the one hand, the permit granted to the petitioner by the STC has been cancelled by the Appellate Tribunal on the C.W.P. No. 18777of 2006 -6- ground that he could not have been treated as a new entrant because he was already holding two permits and plying three buses with a daily mileage of 528 Kms. On the other hand, the Appellate Tribunal has granted the same permit to respondent No.4, who was admittedly an existing operator and was holding many permits and plying many buses. Therefore, granting of the permit in question to respondent No.4 by the Appellate Tribunal is not justified merely on the ground that he was the only appellant available as two other appeals filed by the other claimants were dismissed being barred by limitation. In our opinion, when as a matter of policy it was decided by the STC that the permit in question was to be allotted to the new entrant, then the Appellate Tribunal instead of granting the said permit in favour of respondent No.4, who is an existing operator, should have remanded the matter to the STC to consider the claim of the eligible and capable existing operators for grant of the permit in question. Consequently, this petition is partly allowed and the impugned order to the extent of canceling the permit in favour of the petitioner is affirmed and granting the same permit in favour of respondent No.4 is set aside, and the matter is remanded to the STC to consider the claims of the eligible and capable new entrants for grant of said permit, after providing an opportunity of hearing to them. The STC is directed to take a decision in the matter within a period of three months. (SATISH KUMAR MITTAL) JUDGE April 02, 2008 (RAKESH KUMAR GARG) vkg JUDGE