PANKAJ VAID Vs. STATE

JUDGEMENT

(1.) THE petitioner who has claimed to be a leading transporter of the State has prayed for the issuance of an appropriate direction quashing letter/ order No. 881/RTOJ dated 4.6.1993 and No. U78/R.TOJ dated 186.1993 whereby his application for replacement of the vehicle was rejected. He has further prayed that a command be issued to the respondents to allow replacement of the Vehicle No: 2585/JKS covered under Route Permit No. 7 -MB/RTOJ dated 15 -11 -1988 with vehicle No.2585/JKS in terms of the provisions of Sec. 83 of the Motor Vehicles Act, 1988 and rule 93 of the rules framed thereunder.

(2.) THE Petitioner submits he is in possession of Route Permit bearing No. 7 -MB/RTOJ dated 5.11.1988 which authorises him to ply vehicle No. 2585/JKS on point to point basis between Jammu and Katra - The petitioner has submitted that he ownanother luxury bus bearing No. JKS -9649 which was being operated under All India Tourist Permit from Srinagar to Delhi. The said bus is claimed to be most luxurious and comfortable with seating capacity of 35 person upon which the petitioner is stated to have spent a sum of about Rs. lacs. After the conditions in the Kashmir valley had worsened, operation of the aforesaid vehicle covered by the national permit because uneconomical and the petitioner decided to sell vehicle No. 2585/J.S and in its place ply luxury bus No. 9649/JKS between Katra and Jammu against Route Permit No. 7 -MB/RTOJ. The petitioner made an application in terms of Sec. 83 of the Motor Vehicles Act read with Sec. 93 of the Motor Vehicles Rules (hereinafter referred to as the Act and the Rules respectively praying to the Regional Transport Authority (RTA for short) for replacement of Vehicle No. 9649/JKS. The seating capacity of vehicle No, JKS -2585 was 43 and its wheel base 166" whereas the seating capacity of vehicle No. 9649 JKS is 35 with wheel base of 205". It is submitted that despite his application no action was taken by the respondents with the result that the various reminders in the form of Annexures PC to PF were sent to the respondents who ultimately informed the petitioner vide their letter dated 4 -6 -1993 that prayer for replacement had been rejected. The petitioner again addressed letter dated 7 -6 -1993 to the Member/Secretary of the RTA requesting for reconsideration of his case in the light of the relevant provisions of the Act and the Rules on the subject. The Member/Secretary vide his letter dated 18 -6 -1993 again informed the petitioner that his case had been reconsidered and rejected by the RTA. It is submitted that action of the respondents is illegal, arbitrary and unjustified being in violation of the petitioners statutory and fundamental rights which requires immediate directions from this Court. It is submitted that as the order has been passed at the back of the petitioner without affording him an opportunity of being heard same is liable to be quashed. The orders impugned are alleged to have been issued in a mechanical fashion and without application of mind which are contrary to the provisions of Sec. 83 of the Act and rule 93 of the Rules. It has further been contended that the action of the respondents being violative of the provisions of Article 14 of the Constitution of India, is required to be rectified. As the respondent -authorities are alleged to have acted in an irrational manner resulting in discrimination, it has been prayed that appropriate directions be issued for redressal of the grievance of the petitioner. It is submitted that in case of another transporter engaged in similar business, namely, M/S Bodh Raj Tej Rarn, the respondents allowed their bus No, 9247/ JKP with seating capacity as 43 which wheel base 16â š ¬" to be replaced by Bus No. 6109/JKQ with seating capacity of 35 with wheel base 205". Again that bus was replaced by another bus bearing No. 7576/JKS with seating capacity of 35 and wheel base of 205" on 12 -10 -1991 (Annexure PJ). In another case the bus belonging to the aforesaid transporter was allowed to be replaced with bus No. 5851/3KQ which had the seating capacity of 35 with wheel base 205". It has beens contended that the route -permit in favour of M/S Bodh Raj Tej Ram was also on point to point basis from Jammu to Reasi but upon replacement, the vehicles were allowed to ply only upto Katra. It is contended that the route from Jammu to Katra is highly lucrative route and replacement in favour of the aforesaid transporter by limiting his route to Katra in place of Reasi was done with ulterior motive of conferring undue benefit upon them. It is further contended that one R,N. Dogra was granted a fresh route to ply a bus with seating capacity as 35 and wheeal base 205" on point to point basis from Jammu to Katra. It is contended that the route from Jammu to Katra has been monopolised by the aforesaid two bus operators in collusion with the RTA whose members are stated to be protecting, for obvious reasons, the business interests of M/s Bodh Raj Tej Ram. The case of the petitioner is claimed to be similar to those of the aforesaid two transporters and there was no justification for rejecting his application for replacement and allowing the same in case of other operators.

(3.) IN the objections filed on behalf of the respondents it is submitted that any person aggrieved by the order of refusal of the RTA has an alternate efficacious remedy of filing an appeal Sec. 89 of the Act, before the State Transport Appellate Tribunal. The petitioner, in fact, has availabled of the remedy of filing the appeal and is, therefore, debarred from prosecuting this writ petition. It is submitted that under the Old Act of 1939, efforts were made to ply the vehicles having point to point route permits on zonal basis by rotation with regard to hilly areas and the arrangement worked satisfactorily, The system is stated to have brought a good deal of relief to the travelling populace by ensuring smooth, convenient and regular bus service. The Jammu division has been divided into 5 zones, namely, (I) Jammu -Banihal), (2) Jammu -R.S, Pura, (3) Jammu -Kathua, (4) Jammu Poonch and (5) Jammu -Chhumb). The RTA formulated a policy in that meeting on 19.3.1992 to avoid amongst others the monoply of the transporters arid according to this policy stage carriage permits are being issued for area operations only and not for any particular lucrative route on point to point basis. It is submitted that this policy bas been approved by this Court in Writ Petition No. 231/92. The interim order passed In Writ Petition No, 235/92 was kept in abeyanee by a Division Bench. Rule 82 of the Rules (Central), permits a transporter to make an application for grant of permit in respect of tourist vehicles in Form -45 to the RTA. However, it is provided therein, amongst others, that a tourist permit shall be deemed to be invalid after 5 years. The said rule is stated to have been amended vide notification GSR -33S (E) dated 26 -3 -93 by which the permit has been held to be valid for a period of 7 years. It submitted that as no fundamental or legal right of the petitioner as has been violated, his petition is liable to be dismissed. It is admitted that vehicle No: JKS/2585 was granted a permit on point to point basis for Jammu to Katra but because of the policy the vehicle was not being plied from point to point and was allotted Jammu -Banihal route which included Jammu -Katra as well. The deposit of the route permit with the RTA is admitted but it is denied that vehicle being No. 9649/JKS was plying from Srinagar to Delhi only. It is admitted that the seating capacity of the luxurious coach is 35 persons whereas the seating capacity of vehicle No. JKS/2585 was 43 passengers. The averments regarding the wheel base of the two vehicles has been admitted. It is contended that no vehicle can be permitted to ply from point to point because if this practice is allowed, same shall be against the public policy. It is further contended that if the vehicles are permitted to ply from point to point that no vehicle will ply on hilly and far flung areas having kacha roads wish the result that the people living in those areas would be deprived of transport facilities. Making of the application by the petitioner on 6 -2 -1 992 for replacement of the vehicle has been denied and it is submitted that vehicles No. JKS/2585and No. 9649/JKS are not of the same nature. The applications of the petitioner dated 10 -4 -1993, 19 -5 -1993 and 7 -6 -1993 are admitted to have been received by the respondents. The case of the petitioner was rejected on 74 -5 -1993 after proper appreciation of the rules, intimation of which was given to the petitioner. The application of the petitioner dated 7 6 1993 was rejected by a comprehensive order dated 18 -5 -1993. The respondents have claimed that their action is justified which does not require any interference. Even though no personal hearing was necessary, yet, the petitioners representations made from time to time were considered and later on rejected. It is submitted that the rejection has not been made in a mechanical fashion or without application of mind but is based upon proper appreciation of the provisions of law. The plea of the petitioner that there has been violation of the provisions of Art. 14 of the Constitution, has been vehemently denied It is, however, submitted that only three vehicles bearing registration Nos. JKS -5769, 5776 -JKS and 7687 -JKQ are in operations. Vehicle No. JKP 2461 was replaced by vehicle No. JKS -5851. Vehicle No. JKS -5851 was replaced by vehicle No. JKS 5769 which is operative under permit. No. 22 -MB/RTOJ. No fresh permit has been issued but only replacement has been allowed. The replaced vehicle is stated to be having the seating capacity of 35 passengers and wheel base of 205" like vehicle No. JKQ -5851. Vehicle No. 7576 -JKS is operative against Route permit No. 194/JP/RTA J (363). Previously vehicle No. 9247 -JKP was covered by this route permit, and was replaced by vehicle No. 6197 -JKQ and again by JKS -7576. The replacement of bus No. 9247 -JKP by bus No. 6109 -JKQ was done under the old Act (of 1939) and the rules thereunder and also in the absence of any public policy allowing the plying of vehicles only on Zonal basis. Bus No, 6109 -JKQ was replaced by bus No. 7576 -JKS which is of the same nature. Averments with regard to favour shown by the respondents to M/s Bodh Raj Tilak Raj, have been denied. It is wrong that the route beyond Katra is uneconomical. So for as the route -permit issued in favour of RN. Dogra is concerned, it is submitted that the order was made by the State Government in appreciation of the exceptional gallantary services rendered by him in the defence of the country in recognition of which Vir Chakra was conferred upon him. I it further submitted that in the route permits of the aforesaid three cases a note has been made that those will not be renewed and replaced further on the expiry of the existing period of the route -permits which is to expire by the end of March, 1994. The petitioners case is not identical as those of the aforesaid persons the writ petition is stated to be misconceived and liable to be dismissed.