Reserved Judgment THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 46 of 2010. Ramesh Topwal S/O Sri Rajendra Singh, R/O Village Athurwala Anshik Khandgaon, Doiwala Dehradun. … Petitioner. Vs. 1. State of Uttarakhand through Secretary Transport Civil Secretariat, Dehradun. 2. Regional Transport Authority, through its Secretary, District Dehradun. 3. Secretary, Regional Transport Authority, Dehradun. 4. Jasbeer Singh S/O Sri Harbhajan Singh, R/O 11/4 Guru Road, Dehradun. 5. Pradeep Kumar @ Pradeep Pal S/O Sri Phool Singh, R/O Jolly Grant, Dehradun. …Respondents. WITH Writ Petition (M/S) No. 47 of 2010. Smt. Sarika W/O Kamal Singh, R/O village Tarna Nagal, P.O. Kulhan, Sahastradhara Road, Dehradun. … Petitioner. Vs. 1. State of Uttarakhand through Secretary Transport Civil Secretariat, Dehradun. 2. Regional Transport Authority, through its Secretary, District Dehradun. 3. Secretary, Regional Transport Authority, Dehradun. 4. Jasbeer Singh S/O Sri Harbhajan Singh, R/O 11/4 Guru Road, Dehradun. 5. Pradeep Kumar @ Pradeep Pal S/O Sri Phool Singh, R/O Jolly Grant, Dehradun. …Respondents. Mr. Gopal Narain, Advocate, learned counsel for the petitioners. Mr. K.P.Upadhyay, learned Additional C.S.C. for the respondent Nos. 1 to 3. Mr. Sharad Sharma, Senior Advocate, with Mr. B.C.Bhatt, Advocate, for the respondent no. 4 &5. Date August 10 , 2010. Hon’ble B.S.Verma, J. Since the controversy involved in both the writ petitions is similar and the petitioner in each writ petition has assailed the same 2 impugned order, therefore, for the sake of convenience, both the writ petitions are being decided by this common order. The petitioner in each writ petition has sought the following relief:- I. To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 24-9-2007 passed by respondent no. 3 by which the permit on the route Dehradun-Doiwala had been granted in favour of the respondent nos. 4 and 5. II. To issue a writ, order or direction in the nature of mandamus directing the respondents to consider the application of the petitioner for grant of permit for the route Dehradun-Doiwala. III. Any other order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case. IV. Award cost of the petition. The background facts, giving rise to the present writ petitions, according to the petitioners, are that earlier a survey of Dehradun-Doiwala motor route was conducted by the survey committee consisting of Circle Officer 1st, Dehradun, Regional Transport Officer (Enforcement) Dehradun and Additional City Magistrate, Dehradun, who submitted its report dated 11-5-2005 and it was recommended that considering the facts mentioned in the survey report, 12 permanent permits may be issued on the said route. It emerges out from a perusal of the record that the Regional Transport Authority, Dehradun (for short the R.T.A.) invited applications for issuing permits for plying buses on Dehradun-Doiwala route. It appears that a number of persons applied for the permits. A meeting was held and 15 persons were granted permits on the said route. It appears that the respondent nos. 4 and 5 also applied for grant of permit before the R.T.A. on the said route, which was rejected by the R.T.A. by its decision dated 14-5-2005. Being aggrieved by the order dated 14-5-2005, the respondent nos. 4 and 5 preferred an appeal under Section 89 of the Motor Vehicles Act, 1988 before the State Transport Appellate Tribunal (for short S.T.A.T.), which were registered as Appeal No. 6 of 2005 and Appeal No. 15 of 2005. The 3 S.T.A.T. after hearing the parties ultimately allowed the appeals bearing Appeal Nos. 6 of 2005, 9 of 2005, 10 of 2005, 15 of 2005 and 16 of 2005 by a common order dated 26-9-2005 and quashed the order dated 14-5-2005 passed by the R.T.A. However, the S.T.A.T. had party allowed the appeals preferred by the respondents nos. 4 and 5 bearing Appeal No. 6 of 2005 and Appeal No. 15 of 2005 holding that the applications of the said respondents were wrongly rejected by the R.T.A. but also observed that since the impugned order dated 14-5- 2005 itself being illegal, the same is liable to be quashed, therefore, the appellants are also not entitled to grant of permits. Being aggrieved by the order dated 26-9-2005, Writ Petition No. 1265 of 2005 (MS) Manmohan Singh Bisht and others Vs. State Transport Appellate Tribunal and others, W.P.M.S. No. 1149 of 2005, Alauddin and another Vs. State Transport Appellate Tribunal Uttaranchal and others, WPMS No. 1187 of 2005 Bhanu Prakash Arya and others Vs. State Transport Appellate Tribunal Uttaranchal and others and WPMS No. 1237 of 2005, Chandra Prakash Vs. State Transport Appellate Tribunal Uttaranchal and others, were filed before this Court. Ultimately, this Court by order dated 29-6-2006 allowed all the four writ petitions and the order dated 26-9-2005 passed by the S.T.A.T. was quashed. It appears that the Uttaranchal Road Transport Corporation filed Special Leave Petitions before the Apex Court against the order dated 29-6-2006 passed by this Court. The Special Leave Petitions were dismissed by the Apex Court by order dated 23- 3-2007. The respondent nos. 4 and 5 have filed Writ Petition (M/S) No. 235 of 2006 and 232 of 2006 respectively before this Court, challenging the order dated 26-9-2005 passed by the S.T.A.T. thereby refusing to grant stage carriage permits to the petitioners on Dehradun- Doiwala city bus route. This Court after hearing the parties passed an order dated 10-3-2006 and directed the R.T.A. to the following effect:- 4 “The concerned authority-respondent no.2 shall also consider the application of the petitioner according to rules, if the petitioner is entitled for permit on the concerned route.” According to the petitioners, in compliance of the order dated 10-3-2006, the matter was placed in the meeting of R.T.A. dated 15-5-2006. The R.T.A. took the decision that since the order of the R.T.A. dated 14-5-2005 was set aside by the S.T.A.T., therefore, the permits cannot be granted to the respondent nos. 4 and 5. The R.T.A. also observed that the application of the respondent nos. 4 and 5 would be considered after the advice is received from the Law Secretary. When the applications of the respondent nos. 4 and 5 were not decided by the R.T.A., they preferred Writ Petition Nos. 468 of 2007 (M/S) and 481 of 2007 respectively before this Court for early disposal of their applications by the R.T.A. This Court by order dated May 22, 2007 and order dated May 23, 2007 disposed of the said writ petitions with the direction to R.T.A. to decide the application of the petitioner expeditiously as far as possible without any further delay, if the decision had not yet been taken. It has been stated in paragraph no. 21 of the writ petition that after the order passed by the Apex Court dated 23-3-2007 thereby dismissing the special leave petitions, the respondent nos. 4 and 5 filed a contempt petition Nos. 142 of 2007 and 143 of 2007 on 9-7-2007 before this Court, wherein notices were issued to the respondent to file response. In the said contempt petitions, order dated 24-8-2007 was passed either to comply the Court’s order dated 10-7-2007 within a period of four weeks or to remain present before this Court on 28-9- 2007. Thereafter the Regional Transport Officer, who is the Secretary of the R.T.A., himself granted permits in favour of the respondent nos. 4 and 5 vide order dated 24-9-2007. In the order dated 24-9-2007 the R.T.O. has mentioned that it appears that the intention of the High Court is that both the 5 applicants (respondent nos. 4 and 5) are entitled to get permits, therefore, as per intention of the High Court, Sri Jasbeer Singh and Pradeep Kumar are granted permit with the condition that the validity of the permits shall be effective as per the final order of the High Court. The grievance of the petitioner is that the order dated 24- 9-2007 has been passed by the Secretary of the R.T.A. without jurisdiction because, the Secretary is not empowered under the Motor Vehicles Act and the Motor Vehicles Rules to grant permanent stage carriage permits in favour of any person. The impugned order suffers from grave illegality. On behalf of the respondent no. 1, counter affidavit has been filed. The affidavit has been sworn in by Smt. Sunita Singh, the then Regional Transport Authority, Dehradun. In the counter affidavit, it is stated that the meeting of R.T.A. was held on 14-5-2005 wherein applications for grant of permanent stage carriage permits were considered. The R.T.A. ultimately granted permits to only 15 applicants while all other applications were rejected. In the appeal, the order dated 14-5-2005 was quashed by order dated 26-9-2005 passed by the S.T.A.T. The respondent nos. 4 and 5 filed separate writ petitions before this Court and by order dated 10-3-2006 the R.T.A. was directed to consider the applications of respondent nos. 4 and 5 in accordance with law. The R.T.A. ultimately directed to obtain the opinion of Law Secretary, but the same could not be obtained. In the counter affidavit, the main contention raised by the respondents is that in the writ petition the order dated 24-9-2007 has been challenged after a lapse of about 27 months. It has also been asserted that the writ petition is not maintainable because, the petitioners could have availed statutory remedy of appeals/revision before the S.T.A.T. On behalf of the respondent nos. 4 and 5 counter affidavit has been filed contending therein that the petitioners are not aggrieved persons and they have no right to challenge the order dated 24-9-2007. 6 It is also stated that statutory remedy of revision was available to the petitioners, therefore, the writ petition is not maintainable. It is stated in para iii) of the counter affidavit that permits have been granted to the answering respondents in pursuance to the direction issued by the High Court in Writ Petition Nos. 468 of 2007 and 468 of 2007. The respondent nos. 4 and 5 have filed supplementary counter affidavit wherein it has been stated that the petitioners were not the applicants in the meeting of the R.T.A. held on 14-5-2005 and for the first time the petitioners were the applicant before the RTA in the meeting held on 27-12-2008, therefore, no cause of action has arisen to the petitioners to challenge the impugned order. Again, another counter affidavit was filed on behalf of the respondent nos. 4 and 5 on 24-6-2010 and along with the counter affidavit the respondents have annexed the copy of agenda of meeting of R.T.A. dated 27-12-2008 to show that the approval of the permits granted to the respondent nos. 4 and 5 was done. Rejoinder affidavit has been filed by the petitioner in two sets-one against the supplementary counter affidavit filed by respondent nos. 4 and 5 and the other against the counter affidavit filed by the respondents. In paragraph no. 6 of the rejoinder dated 17-6- 2010, which was filed against the supplementary counter affidavit, the petitioner has in reply to para 4(b) of the supplementary counter affidavit has stated as under:- “6. That the contents of para 4(b) of the supplementary counter affidavit are not correct hence denied. it is stated that from the perusal of judgment and order dated 10.3.06 & 22.5.07 it is abundantly clear that the respondent no. 4&5 challenged the order dated 26.9.05 which has been attained the finality upto Apex Court. Hence it is abundantly clear that respondent no. 4 & 5 did not approach the Hon’ble Court with clean hands and got order by playing the fraud on the court and since it has been established from the record that they got order from the Hon’ble Court by playing fraud 7 therefore as per settled preposition of law the order by which they get the permit can be thrown out at any stage. It is further submitted that the Secretary RTA who is collusion with the respondent no. 4&5 cleverly granted the permit to the petitioner by mentioning the reason that Hon’ble Court shows its intention to grant the permit in favour of respondent no. 4 & 5 while this Hon’ble Court specifically mentioned in its order that the application of respondent no. 4 & 5 may be considered in accordance with law.” I have heard learned counsel for the parties and perused the material placed before this Court. At the outset, it is pertinent to mention that the impugned order dated 24-9-2007 passed by the respondent No.3-Secretary R.T.A. is the ultimate result of the order passed by this Court in Civil Contempt Petition No. 142 of 2007 [arising out of Writ Petition No.232 of 2006 (M/S)], Pradeep Kumar Vs. Arjun Singh Gunjyal, Secretary, Regional Transport Authority/R.T.O., Dehradun and Contempt Petition No. 143 of 2007 (arising out of W.P.M.S. No. 235 of 2006), Jasbeer Singh Vs. Arjun Singh Gunjyal, Secretary, Regional Transport Authority/R.T.O., Dehradun. The applicants Pradeep Kumar and Jasbeer Singh filed two separate writ petitions before this Court referred to above assailing an order dated 26-9-2005 passed by the S.T.A.T. in Appeal No. 15 of 2005, Pradeep Kumar Vs. R.T.A. and Appeal No. 15 of 2005, Jassbeer Singh Vs. R.T.A. In both these writ petitions, the petitioners confined their prayer only to the extent that the meeting is going to be held on 18.3.2006 at R.T.A. Dehradun and that the application of the petitioners be considered by the authority concerned in the meeting. On the prayer of the petitioners, this Court passed an other dated 10-3- 2006 in both the writ petitions that the concerned authority shall also consider the application of the petitioner according to Rules, if the 8 petitioner is entitled for permit on the concerned route. Admittedly the alleged applications of the petitioners could not be disposed of by the authority concerned by or before 29-6-2006 and not even thereafter by May 22, 2007. It is very significant to mention here that much before the filing of W.P.M.S. Nos. 232 of 2006 and 235 of 2006 by Pradeep Kumar and Jasbeer Singh thereby assailing the order dated 26-9-2005 passed by the S.T.A.T. in their respective appeals, which were filed against the order dated 14-5-2005 passed by the R.T.A., the said order dated 26-9-2005 passed by the S.T.A.T. had already been challenged before this Court by other aggrieved persons in four separate Writ Petitions, namely, W.P.M.S. No. 1265 of 2005 (M/S) Manmohan Singh Bisht and seven others Vs. S.T.A.T. and six others. In this writ petition, Jasbeer Singh has been arrayed as respondent no. 5 and Pradeep Kumar @ Pradeep Pal as respondent no.7. In Writ Petition No. 1149 of 2006(M/S) Allauddin and another Vs. S.T.A.T. and six others, Jasbeer Singh has been arrayed as respondent no. 4 and Pradeep Kumar @ Pradeep Pal as respondent no.7. In W.P.M.S. No. 1187 of 2005, Bhanu Prakash Arya and two others Vs. S.T.A.T. and six others, Jasbeer Singh has been arrayed as respondent no. 5 and Pradeep Kumar @ Pradeep Pal as respondent no.7. In fourth writ petition bearing W.P.M.S. No. 1237 of 2005, Chandra Prakash Vs. S.T.A.T. and two others, none of them has been arrayed as respondent. All these four writ petitions were clubbed together and decided on merits by this Court by a common order dated 29-6-2006. The operative portion of the order dated 29-6-2006 reads as under:- “Here in this case the permits have been issued by the State Transport after promulgation of notification dated 5.8.1994 by which private transport operators were permitted to ply buses on the restricted routes. Thus the permits have been issued in conformity with the notification dated 5.8.1994. 9 So far as the findings of learned Tribunal regarding prior survey of the roads regarding wideness, availability of fuel, pollution control etc. are concerned, these are no grounds for refusing the permits issued by the Transport authorities. There is no specific complaint that the roads are not sufficiently spacious for plying the buses, there is no availability of fuel or the pollution would increase if the permitted vehicles would ply on this routs. It is incumbent upon the Transport authorities and the administration to keep watch on such problems, however the Tribunal was not justified to cancel the permits for plying city buses such flimsy and imaginary grounds. In view of above, a writ of certiorari is issues quashing the order dated 26.9.2005 passed by the State Transport Appellate Tribunal, Dehradun. Accordingly, writ petitions are allowed. No order as to costs.” Admittedly, the order dated 29-6-2006 passed by this Court was assailed before the Supreme Court by the Uttaranchal State Road Transport Corporation by filing separate Special Leave Petitions. Ultimately, the Apex Court by order dated 23-3-2007 passed in Special Leave to Appeal (Civil) No. 14885 of 2006 held as under:- “Heard. We see no reason to interfere. The special leave petitions are dismissed.” Thus, by the order dated 23-3-2007 passed by the Apex Court, the order dated 29-6-2006 passed by this Court thereby allowing all the four writ petitions (WPMS Nos. 1265 of 2005, 1149 of 2006, 1187 of 2005 and 1237 of 2005) has attained finality and the order dated 26-9-2005 passed by the S.T.A.T. stood quashed, the order of the R.T.A. dated 14-5-2005 being upheld by this Court. The order is binding on all the parties concerned. 10 In view of the order dated 29-6-2006 passed by this Court it follows that the applications of the applicants including the respondent nos. 4 and 5 herein Jasbeer Singh and Pradeep Kumar @ Pradeep Pal stood rightly dismissed. In view of the order dated 29-6- 2006, which has admittedly attained finality by the order dated 23-3- 2007 passed by the Apex Court, it does not lie in the mouth of the respondent nos. 4 and 5 to say that their applications were any more pending disposal before the Regional Transport Authority in any case after 23-3-2007. It has been vehemently contended by the learned counsel for the respondent nos. 4 and 5 that the order dated 29-6-2006 passed by this Court does not attain finality in so far as the appeals of the respondent nos. 4 and 5 are concerned. The argument advanced by the learned Senior Advocate Mr. Sharad Sharma is not at all acceptable even from a very remote consideration. It is not disputed that the respondent nos. 4 and 5 herein were impleaded as respondents in three writ petitions. It is also admitted that the learned S.T.A.T. has decided as many as five appeals including Appeal No. 6 of 2005, Jasbeer Singh Vs. R.T.A. and Appeal No. 15 of 2005, Pradeep Kumar Vs. R.T.A. In this view of the matter, it cannot be argued that the order dated 29-6- 2006 does not attach finality in respect of applications of respondent nos. 4 and 5 herein. Learned counsel for the petitioner has vehemently argued that the respondent nos. 4 and 5 who are petitioners in W.P.M.S. No. 468 of 2007 and W.P.M.S. No. 481 of 2007 before this Court have deliberately concealed the facts from the Court and did not disclose the true facts before this Court particularly when the order dated 29-6- 2006 had attained finality on 23-3-2007. The respondents filed aforesaid two Writ Petitions subsequent to the order passed by the Supreme Court. Learned counsel further contended that in any view of the matter, after quashing of order dated 26-9-2005 passed by the S.T.A.T. vide dorder dated 29-6-2006, the respondent nos. 4 and 5 11 could not have pressed before this Court as well as before the R.T.A. that their applications for grant of permit was pending for disposal with the R.T.A. Learned counsel for the petitioner Mr. Gopal Narain, Advocate, has also pointed out that in the Writ Petition No. 1265 of 2005 (M/S) Manmohan Singh Bisht and others Vs. S.T.A.T. and others and Writ Petition No. 1149 of 2005 (M/S), Alauddin and another Vs. State Transport Appellate Tribunal and others, the respondent nos. 4 and 5 herein have put in appearance through their counsel Mr. N.C.Gupta, Advocate and have sought time to file counter affidavit as far back as 2005, therefore, it cannot be said that the respondent nos. 4 and 5 herein are innocent and that they had no notice of the writ petitions and challenge of order dated 26-9-2005 passed by the S.T.A.T. therein by the time they filed separate writ petitions in the years 2006 and 2007. The argument of the learned counsel for the petitioner cannot be ignored that the respondents no. 4 and 5 herein had due knowledge that the order dated 26-9-2005 passed by the S.T.A.T. had been under challenge in the said writ petitions and that they were duly represented by a counsel much before the respondent nos. 4 and 5 filed separate writ petitions No. 235 of 2006 (M/S) and WPMS No. 232 of 2006 respectively. Not only this, thereafter, the respondent nos. 4 and 5 filed another writ petition separately registered as W.P.M.S. No. 468 of 2007, Jasbeer Singh Vs. S.T.A.T. and others and WPMS No. 481 of 2007,l Pradeep Kumar Vs. S.T.A.T. and two others, which were disposed of by order dated May 23, 2007. Be that as it may, I am of the view that the respondent nos. 4 and 5 cannot be said to have come with clean hands before this Court at the time they filed writ petitions separately thereby challenge was made to the order 26-9-2005 passed by the S.T.A.T. Moreover, since the order dated 29-6-2006, passed by this Court in Writ Petition No. 1265 of 2005 (M/S) which was allowed along with W.P.M.S. No. 12 1149 of 2005, W.P.M.S. No. 1187 of 2005 and WPMS No. 1237 of 2005, had already attained finality after the Special Leave Petitions, which were filed by the Uttaranchal State Road Transport Corporation before the Hon’ble Apex Court, had been dismissed vide order dated 23-3-2007, the applications, which were filed by the respondent nos. 4 and 5 before the Regional Transport Authority, Dehradun stood finally dismissed. It is pertinent to note that by virtue of order dated 29-6- 2006 passed by this Court, this Court had upheld the order dated 14-5- 2005 passed by the Regional Transport Authority, Dehradun and the R.T.A. Dehradun had already dismissed the applications of the respondent nos. 4 and 5 herein. Thus, it could be seen that after the pronouncement of the judgment dated 29-6-2006 whereby the order dated 26-9-2005 passed by the S.T.A.T. was quashed and the order of the R.T.A. was upheld finally, it was even not open for the respondent nos. 4 and 5 herein to file writ petitions bearing W.P.M.S. No. 468 of 2007, Jasbeer Singh Vs. S.T.A.T. and others and W.P.M.S. No. 481 of 2007, Pradeep Kumar Vs. S.T.A.T. and others for a direction to the R.T.A. to grant stage carriage permits to them alleging that their applications are pending before the R.T.A. or to say before this Court that their applications are pending for disposal before the Regional Transport Authority. It is noteworthy to mention that even the S.T.A.T. in its order dated 26-9-2005 had held that the appellants (including respondent nos. 4 and 5 herein) are not entitled to grant of permits, although their appeals were partly allowed holding that the R.T.A. had illegally rejected their applications. Learned counsel for the petitioner further submitted that the Secretary, Regional Transport Authority, in the impugned order has wrongly mentioned that the permits are being granted to the respondent nos. 4 and 5 herein as per intention of this Court. Learned counsel for the petitioner has pointed out that this Court had not issued any writ of mandamus directing the Regional Transport Authority to grant permits to the respondent nos. 4 and 5. 13 I have perused the impugned order dated 24-9-2007. The order dated 24-9-2007. In this order the Secretary, Regional Transport Authority has mentioned that respondent nos. 4 and 5 have applied for grant of permits in view of the order passed by this Court. It finds place to mention here that this Court in the order dated 10-5-2006