1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. (1) S.B.Civil Writ Petition No. 2067/2007 Jodhpur City Bus Owners Union vs. The State of Raj. & ors. & anr. (2) S.B.Civil Writ Petition No.2390/07 Chiman Singh & anr. vs. The State of Raj. & ors. (3) S.B. Civil Writ Petition No.3537/2007 Tikam Chand Kothari & ors. vs. The State of Raj. & ors. (4) S.B. Civil Writ Petition No.3896/2007 Bansi Lal Lohar vs. The State of Raj. & ors. under Article 226 of the Constitution of India. Date of Judgment: August 30th ,2007. PRESENT HON'BLE MR. PRAKASH TATIA,J. Mr. Girish Joshi for the petitioners Mr. B.P. Bohra for the petitioner in SBCW No.3896/07. Mr. N.M. Lodha, AAG. for the State. Mr. B.L. Maheshwari for the respondents. Mr. B.L. Tinwari for respondent no.5 in SBCW No.3537/07 Mr. V.K. Mathur for respondent no.6 in SBCW No.3537/07 BY THE COURT: REPORTABLE The State Government opened various routes for plying buses of Rapid Transport System vide notification dated 4.11.2006.The State Government further vide another notification dated 2 12.12.2006 granted approval of the State Government for implementation of Bus Rapid Transport System (for short BRTS) in the cities of Udaipur, Jodhpur and Kota in Rajasthan. By the same order dated 12.12.2006, the State further granted approval for constitution of Special Bus Vehicles (SPV)- a city level transport company for each of the above cities with the names (1) “Udaipur City Transport Services Limited” for the city of Udaipur, (2) “Jodhpur City Transport Services Limited” for the city of Jodhpur and (3) “Kota City Transport Services Limited” for the city of Kota. The above four writ petitions have been filed to challenge these notifications opening routes for BRTS and against the grant of approval for implementation of BRTS as well as against grant of approval for constitution of companies mentioned above for the area of Jodhpur and Udaipur cities. The S.B.Civil Writ Petition No.2067/07 has been filed by the Jodhpur City Bus Owners Union through its authorised representative of said Union and by one Chetan Singh, who has been impleaded in the writ petition as petitioner in his individual capacity on the ground that his fundamental rights are violated by 3 the above action of the State. In this writ petition which was filed before any permit was granted by the respondent-Transport Authority to respondents no.6 or 7, therefore, the permits which were granted in favour of respondent no.7 subsequent to the filing of the above writ petition, have not been challenged and only relief of prohibition against grant of permit has been sought. Another S.B.Civil Writ Petition No.2390/07 has been filed by Chiman Singh and Arjun Parihar for the same reliefs as claimed in above S.B.Civil Writ Petition No.2067/07 but with challenge to orders granting permits to Mahadev Travels(respondent). S.B.Civil Writ Petition No.3537/07 has been filed by Udaipur Kendriya Auto Tempo Sharmik Union and one Tikam Chand Kothari who is permit holder and is plying stage carriage vehicle on the route no.2 in the city of . On the basis of same facts and grounds as in identical above two writ petitions No.2067/07 and No.2390/07, the petitioners have challenged the orders dated 27.10.2007, 23.5.2007 and 7.5.2007 as well as permits granted to respondent no.6-U.N. Speedways Pvt. Ltd. dated 16.4.2007 and 7.5.2007. These orders and permits are for the route opened in city of 4 Udaipur. By the Writ Petition No.3896/07, the petitioner Bansi Lal, the permit holder of stage carriage vehicle on the route in Udaipur City, has challenged the orders of the State Government dated 27.10.2006 and 23.5.2007 as well as the permit granted to respondent no.6- U.N. Speedways Pvt. Ltd. dated 16.4.2006 and 7.5.2007. S.B.Civil Writ Petitions No.3537/07 and 3896/07, are therefore, for challenging the same orders of the State Government, by which the routes were opened by the orders of the State Government in the city of Udaipur and grant of permit over the above routes. Meaning thereby in all the four writ petitions, the challenge is to the decision of the State Government of opening various routes under BRTS and grant of permits for the routes opened under BRTS as well as against the approval of implementation of BRTS and constitution of above three companies and, therefore, all these writ petitions were heard together and are being decided of by this common judgment. The petitioners' contention in all these writ petitions are that 5 the State Government by order dated 12.12.2006, granted approval for implementation of BRTS in the cities of Udiapur, Jodhpur and Kota as well as by the same order granted approval for constitution of Special Purpose Vehicle (SPV)-a city level transport company, for each of the above cities, namely, Udaipur, Jodhpur and Kota. According to the petitioners, though by order dated 12.12.2006, it has not been specifically and expressly conveyed that these companies are State Transport Undertakings as defined under sub- section (42) of Section 2 of the Motor Vehicles Act, 1988 but in fact, they are State Transport Undertakings. According to the petitioners in the State of Rajasthan, there can be only one State Transport Undertaking because of the reason that though the State may have power to constitute State Transport Undertaking or a State Transport undertaking can be constituted by local bodies also under sub-section (42) of Section 2 of the Act of 1988 but the State itself by framing sub-clause (c) of Rule 6.1 in the Rajasthan Motor Vehicles Rules, 1990, restricted its constitution and by rule and declared that only the Rajasthan State Road Transport Corporation shall be the State Transport Undertaking. Clause (c) of Rule 6.1 of 6 Rules of 1990 provides that State Transport Undertaking means the Rajasthan State Road Transport Corporation established under section 3 of the Road Transport Corporation Act of 1950. In view of the above legal position, the State Government had no power to grant approval for constitution of companies, like the companies referred above, which may provide service of motor vehicle for carrying passengers for hire or reward, unless the rule 6.1(c) is amended. Another contention of the petitioners is that the State Transport Undertaking can be allowed to provide services only on the area or route for which the scheme has been prepared by the State Government by following procedure under Chapter VI, particularly as provided under Sections 99, 100, 101 and 103 of the Act of 1988. The State Government has not prepared any “scheme” as defined by rule 6.1 (b) of the Rules of 1990 nor declared any area or route to be the area or route under the scheme under Section 99 of the Act of 1988 for the purpose of allowing the State Transport Undertaking to ply their vehicles and to create complete or partial monopoly of said State Transport Undertaking for plying the vehicles in the area or route which may be declared as such area or route under Chapter VI of the Act of 1988. It is also submitted that 7 “Scheme” is also defined under sub-clause (b) of Rule 6.1 of the Rules of 1990 and “Scheme” means a scheme framed in pursuance of Section 99 of the Act of 1988. How the scheme can be framed is provided under Section 99 of the Act and it gives opportunity to all persons to examine the scheme and submit the objections to the proposals of the Government under Section 100 of the Act of 1988. Once the scheme is approved after observing the requirements of law as provided under sub-section (1) of Section 99 and after considering the objections, as may be submitted under Section 100, the State is required to publish the scheme in the official gazette and further it is required that the scheme shall be published in at least one news-paper in regional language circulating in the area or route covered by such scheme. With the publication of notification in official gazette in newspaper, as per sub-section (3) of Section 100 of the Act of 1988, the scheme becomes the “approved scheme” and the area and the routes under the scheme are called “notified area” or “notified route”. This is the only procedure provided by which monopoly can be created of State Transport Undertaking in the matter of providing service of motor vehicle for 8 carrying passengers for hire and reward and for rest of the routes, there cannot be any monopoly even for State Transport Undertaking.The State Transport Undertaking is also at par with any private operator when State Transport Undertaking wants to ply their vehicles on the route opened under Chapter V of the Act of 1988. According to the petitioners, there cannot be any monopoly when route is formulated and opened by the State Government under Chapter V. The petitioner or the members of the petitioner, they are having stage carriage permits and are plying their vehicles on the routes which are overlapping on the route opened by various notifications issued by the State Government and which are impugned in all the four writ petitions. Therefore, the State excluded the petitioners and petitioner's members from plying their vehicles on the route in question by creating monopoly of respondent companies. It is also contended that the BRTS is in fact an scheme, as defined under sub-clause (b) of Rule 6.1 of the Rules of 1990 but the scheme has been declared without following the procedure as provided under Chapter VI and by complying with the requirements 9 of law as provided under Sections 99 and 100 of the Act of 1988, the State Government by giving name “system” to BRTS, cannot avoid to follow the procedure as provided under Chapter VI of the Act of 1988. According to the petitioners, the routes in questions were opened though prior to the approval of the State for constitution of the companies but from the notification, opening the route itself, it is clear that the State Government decided to implement the BRTS and opened the route only for the BRTS and, therefore, only the company constituted by the State Government by its approval dated 12.12.2006 alone was likely to get permit to ply their vehicles and, therefore, Jodhpur City Bus Owners Union immediately before grant of permit to any body, preferred S.B.Civil Writ Petition No.2067/07. In other three writ petitions, the permits which were granted to the private respondents, also have been challenged. The petitioner in these writ petitions submitted that any person who has any financial interest whether as proprietor, employee or otherwise, in any transport undertaking, is not eligible to be appointed and is not entitled to continue as member of the 10 State or Regional Transport Authority as per sub-section (2) of Section 68 of the Act of1988. Not only this, under sub-section (2) of Section 68 of the Act of 1988, it is clearly provided that even if any person being a member of any State or regional Transport Undertaking, acquires financial interest in any transport undertaking, is required to give notice in writing to the State Government of such interest within four weeks on his acquiring financial interest in transport undertaking and further he is required to vacate the office also. In the present case, the State Government by the same notification dated 12.12.2006 referred above, granted approval of the composition of Board of Directors of the said companies by including the Regional Transport Officers as Member of the Board of Directors. According to the petitioners, the company constituted by the approval of the State dated 12.12.2006 is a transport operator only even if it is a State Transport Undertaking or a company. The above companies are competitors in the routes in questions with other transport operators. The Regional Transport Officer is required to take a quasi judicial decision and pass orders on the applications submitted by the above referred 11 companies in competition to other operators and, therefore, the Regional Transport Officer could not have been appointed as Member in the Board of Directors of the companies because of simple reason that it may influence his decision in the matter of grant of permits, obviously in favour of the company in which he is one of the Director. In all these writ petitions, the petitioners have neither challenged the appointment of Regional Transport Authority as Director of the companies constituted and approved by the Government by order dated 12.12.2006 and nor have challenged his continuation as Regional Transport Officer. The petitioners in all writ petitions sought only relief that since the Regional Transport Officer is beneficiary of company, therefore, respondent cannot grant permit to respondent-company. According to the petitioners, after obtaining approval of the State Government by the respondent-Companies, the said companies have issued notice inviting tender (Annex.6) dated 6.1.2007 (respondent-Jodhpur City Transport Services Limited for Jodhpur area ) and dated 4.1.2007 (Annex.4) by the Udaipur City Transport Services Limited for Udaipur area. According to the 12 petitioners, the above two companies also issued Form for inviting expression of interest and offer to operate the city buses in the city of Jodhpur and Udaipur respectively. The copy of the said Form also has been placed on record by the petitioners to show that in this Form, the company conveyed that the company has obtained permits from the Road Transport Authority for the routes which were opened by the State Government under the BRTS. The companies invited operators to operate the city buses on various routes on the basis of the route-wise offers and for which the operator is required to pay the permit fee on monthly basis, therefore, the petitioners, in S.B.Civil Writ Petition NO.2067/07, without delay and without waiting for grant of permit, challenged the action of the respondent; the action of the State for implementation of BRTS(Scheme), granting approval for constitution of the companies which in fact are State Transport Undertakings and against the proposed action of the Transport authorities to grant permits to the companies and granting permit to any of persons who intend to get the permit through the respondent- Companies. However, subsequent to the filing of the S.B.Civil Writ 13 Petition No.2067/07, since the permits have been granted in the name of the private respondents but with clear intervention of the respondent-companies, therefore, the petitioners have challenged the permits granted to the private respondents for operating their buses on the routes opened by the State Government by various impugned orders, copies of which have been placed on record of all these four writ petitions. Apart from above grounds, the petitioners have raised issue of public interest and according to the petitioners, the action of the respondents is against the public interest. According to the petitioners, buses which are sought to be allowed on the route formulated by the State vide order dated 4.11.2006 are not fit for running the said buses. It is also stated that in the entire Jodhpur city there exists only 3% of roads on which the buses of such type can ply. According to the petitioners (in writ petition No.2067/2007) there are no appropriate road widths in the route opened where the said buses even can take turn. The petitioner specifically identified the points in Jodhpur City where buses cannot take turn in writ petition pertaining to Jodhpur City and it is 14 said that the same is the position in Udaipur as well as in entire Rajasthan. Not only this but in city limit, only light motor vehicles can be allowed to run and light motor vehicle has been defined in sub-section (21) of Section 2 of the Act of 1988. As per the definition of light motor vehicle as given in sub-section (21) of Section 2, its weight should not exceed 7500 kgs. (unladen) and petitioners are already plying their vehicles whose gross weight is not exceeding 7500 kgs. and even all the vehicles held by the petitioners' members are of 5300 kgs. only whereas the vehicles sought to be used in BRT System are having weight of 16200 kgs. The learned counsel for the petitioners also pointed out that the respondents in their reply virtually admitted the fact that roads in the city of Jodhpur are not meant for plying the vehicles which are sought to be allowed by opening the routes under the BRT System and, therefore, even the respondent-Company sought certain diversion and modifications in the route opened by the State vide order dated 4.11.2006. The petitioner in reply to the respondent's application for modification of the stay order, submitted that the vehicles in question will be employed in densely populated area 15 and further if the proposals submitted by the respondent-Company are accepted then that cannot be done as according to the respondents the companies are not the permit holders. The respondent pointed out that at Jodhpur in Fidusar Chopar to Boranada route 17 bus stand stoppages have been shown but in the proposed diversion and extension, 40 bus stoppages have been shown and for Banar to Chopasani there were 13 bus stand stoppages but in the proposed diversion and extension, there are 50 bus stoppages have been shown. For Jogari Nadi Pool to Boranada, originally 44 bus stand stoppages have been shown whereas in the proposed diversion and extension, 52 bus stoppages have been shown and in the same way, in Banar to Fidusar Chopar, it has been increased from 34 to 38, in Chopasani to Ossian there being increased from 29 to 35, In Mandore to Salawas stoppages have been increased from 21 to 26. The buses are required to be stopped at least two minutes on each bus stop. The petitioners, therefore, tried to show that by this, huge time will be consumed only at bus stoppages. The petitioners also raised objection about the speed on which the new vehicles will run. It is also submitted that the 16 revision in the order opening route has been sought by the respondent-Company, whereas revision, diversion or extension of route can be sought only by the permit holders. The petitioners also submitted that the routes have been increased from 24 kms. whereas as per sub-clause (i) of provision under sub-section (3) of Section 80, it cannot exceed 24 kms. The petitioner also placed on record certain photographs along with his aforesaid reply to respondent's application for modification of order to show that the road width in particular area is very small and the proposed buses having dimension of 9' x 30' will create havoc for the public and will put the life of the citizens in danger. Lastly, the petitioner submitted one more reply which was in response to the respondent's application which was filed to explain the BRT System dated 19.7.2007. In this reply, the petitioner submitted that the respondent wants to implement the UIDSSMT Scheme which according to the petitioner's knowledge means, “Urban Infrastructure Development Scheme for Small, Medium Town. According to the petitioner, before implementing said UIDSSMT Scheme, the State was required to develop the road system in the 17 cities first but that has not been developed and without making any study and survey and without developing the basic infrastructure, the respondent is implementing the BRT System under the alleged UIDSSMT Scheme and in the light of the facts pleaded by the petitioner, said UIDSSMT Scheme cannot be implemented in the city like Jodhpur, what to say of cities having less population and if these buses will be allowed to run, they will be against the public interest. The learned counsel for the petitioner in support of his contentions, relied upon several judgments which will be considered at relevant places. Shri N.M. Lodha, learned Addl. Advocate General appearing for the State has raised preliminary objections against the maintainability of all the four writ petitions. According to Shri Lodha, the writ petition preferred by Jodhpur City Bus Owners Union and another deserves to be dismissed as the Jodhpur City Bus Owners Union neither sought any permit for the route in question nor its members intending to apply for the permit as admitted by the learned counsel for the petitioner, therefore, they are not 18 aggrieved persons hence have no locus standi to challenge the orders of the State. Further these petitions are not public interest petitions . Not only this, the petitioner tried to mislead this Court by submitting that any objection has been submitted by the petitioner or its members against the implementation of BRT System. The petitioner Jodhpur City Bus Owners Union stated wrong facts that the Jodhpur City Bus Owners Union submitted their objection/representation on 9.11.2006 and copy of which has been placed on record as Annex.5. The said representation was submitted not by or on behalf on the petitioner Association or its members but was submitted by the Central City Bus Owners Association, Jodhpur through its President Hari Singh Arya. Said Hari Singh Arya thereafter himself became the Director of the Jodhpur City Transport Services Ltd. Itself. It is also submitted that in view of the above facts alone, the writ petition of the petitioner deserves to be dismissed. It is also submitted that the petitioner has challenged the order of the State Government dated 4.11.2006 opening the route and for that route, none of the member of the petitioner is seeking any permit to ply buses then they cannot be 19 said to be aggrieved persons against the order dated 4.11.2006 (Annex.4). It is also submitted that the writ petition to challenge the order dated 12.12.2006 is not maintainable in view of the fact that that was administrative order effecting no body and the petitioners failed to show any reason for their grievance against the constitution of Company or grant of approval by the State Government of the constitution of Company. It is also submitted that the petitioner sought relief against the respondent- JCTS Pvt. Ltd. and U.N. Speedways Pvt. Ltd. on the ground that the monopoly has been created for these companies for the route formulated by order dated 4.11.2006, whereas said companies have neither applied nor have been granted any permit to ply any bus over the routes in question. Therefore also, the writ petitions of the petitioners are without any basis. It is also submitted that the petitioner has raised several disputed questions of fact that their exists no appropriate road and infrastructure on which the buses proposed to be allowed on the route can ply. The petitioner has not placed on record any expert opinion to prove this fact, therefore, the disputed question 20 of fact cannot be determined by this Court in writ jurisdiction about the availability of appropriate road and infrastructure for the route in question and the averments have been made without there being any factual foundation in the writ petitions. Further it is submitted that the members of the petitioner- Union are already plying their buses on the various routes opened by the order of the State Government and some buses are plying on the route in question as the routes of the members of the petitioner-Union are overlapping on the routes in question, therefore, the writ petitions are not for the public interest but have been filed for personal gain. Another preliminary objection is that the opening of route by order dated 4.11.2006, the approval of the State Government for constitution of Company dated 12.12.2006, the constitution of the Company itself by getting it registered under the Companies Act, allowing the Regional Transport Authority to become the Director in the Company, are separate and independent matters and may give rise to entirely distinct, separate and unconnected causes of action and all those causes of actions cannot be joined together and, 21 therefore, the writ petition of the petitioner suffers from error of misjoinder of causes of action. The petitioner also joined two causes of action, one for their own benefit and another of alleged public interest and two cannot go together in one writ petition. There cannot be question of public interest when the petitioners themselves says that they themselves are adversely affected in business competition