Mithilesh
Garg Vs. Union of India & Ors [1991] INSC 307
(22 November 1991)
Kuldip
Singh (J) Kuldip Singh (J) Misra, Rangnath (Cj) Kania, M.H.
CITATION:
1992 AIR 443 1991 SCR Supl. (2) 428 1992 SCC (1) 168 JT 1991 (4) 447 1991 SCALE
(2)1088
CITATOR
INFO : D 1992 SC1888 (13)
ACT:
Motor
Vehicles Act, 1988/1939:
Sections
71, 72,80,88/47,5 7---Grant of permits--Libera- lised procedure envisaged in
the new Act--New permits irre- spective of number of persons already in the
route--Rights of existing operators--Whether affected--Different criteria
provided for inter-region, intra-region and inter-State permits--Whether violative
of the Constitutional guarantee under Article 14--Factors to be taken into
consideration by Regional Transport Authority before grant of permit.
Constitution
of India, 1950:
Articles
14 and 19(1)(g)--Provisions of Motor Vehicles Act, 1988 Liberalised procedure
for issue of permits--Grant of more permits in the same route-Different
criteria for inter-region, intra-region and interState permits--Whether violative
of.
HEAD NOTE:
These
Writ Petitions filed before this Court challenged the liberalisation for
private sector operations in the Road Transport field, under the Motor Vehicles
Act, 1988. The petitioners were the existing operators on different routes.
On
behalf of the petitioners, it was contended that the issue of more permits on
the same route adversely affected their rights guaranteed under Articles 14 and
19 of the Constitution of India. It was further contended that though imposition
of limit for grant of inter-State permits was permissible under Section 88(5)
of the Act, it was not so in respect of intra-region permits and hence it is discrimina-
tory; that in public interest the grant of intra-region permits should be limited.
Dismissing
the Writ Petitions, this Court,
HELD:
1.1. Restricted licensing under the old Act led to the 429 concentration of
business in the hands of few persons there- by giving rise to a kind of
monopoly, adversely affecting the public interest. The apprehensions of the petitioners,
that too many operators on a route are likely to affect adversely the interest
of weaker section of the profession, is without any basis. The transport
business is bound to be ironed-out ultimately by the rational of demand and
supply.
Cost
of a vehicle being as it is the business requires huge investment. The
intending operators are likely to be con- scious of the economics underlying
the profession. Only such number of vehicles would finally remain in operation
on a particular route as are economically viable. In any case the transport
system in a State is meant for the benefit and convenience of the public. The
policy to grant permits liberally under the new Act is directed towards the
said goal. [438 A-C].
1.2
The petitioners are in the full enjoyment of their fundamental right guaranteed
to them under Article 19(1)(g) of the Constitution of India. There is no threat
of any kind whatsoever from any authority to the enjoyment of their right to
carry on the occupation of transport operators.
There
is no complaint of infringement of any of their statu- tory rights. More
operators mean healthy competition and efficient transport system. Over-crowded
buses, passengers standing in the aisle, persons clinging to the bus-doors and
even sitting on the roof-top are some of the common sights in this country.
More often one finds a bus which has noisy engine, old upholstery,
uncomfortable seats and continuous emission of blacksmoke from the exhaust
pipe. It is, there- fore, necessary that there should be plenty of operators on
every route to provide ample choice to the commuter-public to board the vehicle
of their choice and patronise the operator who is providing the best service.
Even otherwise the liberal policy is likely to help in the elimination of
corruption and favouritism in the process of granting per- mits. [437 EH;
438-A].
Hans Raj
Kehar & Ors. v. The State of U.P. and Ors., [1975] 2 SCR 916, followed.
Jasbhai
Desai v. Roshan Kumar & Ors., [1976] 3 SCR 58;
,Saghir
Ahmad v. The State of U.P. and Ors., [1955] 1 SCR 707, relied on.
Rameshwar
Prasad & Ors. v. State of Uttar Pradesh
& 0rs.[1983] 2 SCC 195, distinguished.
2. It
is only the State which can impose reasonable res- tric- 430 tions within the
ambit of Article 19(6) of the Constitution of India. Section 47(3) and S7 of
the old Act were some of the restrictions which were imposed by the State on
the enjoyment of the right under Article (19)(1)(g) so far as the motor
transport business was concerned. The said re- strictions have been taken away
and the said provisions have been repealed from the Statute Book. The new Act
provides liberal policy for the grant of permits to those who intend to enter
the motor transport business. The provisions of the Act are in conformity with
Article 19(1)(g) of the Constitu- tion of India. When the State has chosen not to impose any restriction under Article
19(6) of the Constitution of India in respect of motor transport business and
has left the citizens to enjoy their right under Article 19(1)(g) there can be
no cause for complaint. [440 B-D].
3. The
three categories of permit-seekers in respect of interegion, intra-region and
inter-State permits cannot be considered to be belonging to the same class.
Different criteria have been provided under the Act for granting permits in
respect of each of the categories. It is not the case that Section 80 brings
about discrimination in the matter of grant of permits between applicants
belonging to the same class. [442-B] Hans Raj Kehar & Ors. v. The State of U.P. and Ors. [1975] 2 SCR 916, relied on.
4.
Matters such as conditions of roads, social status of the applicants
possibility of small operators being eliminated by big operators, conditions of
hilly routes, fuel availability and pollution control are supposed to be within
the comprehension of the transport authorities. The legislative policy under
the Act cannot be challenged on these grounds. It is not disputed that the
Regional Trans- port Authority has the power under the Act to refuse an
application for grant of permit by giving reasons. It is for the authority to
take into consideration all the relevant factors at the time of quasi-judicial
consideration of the applications for grant of permits. The statutory
authorities under the Act are bound to keep a watch on the erroneous and
illegal exercise of. power in granting permits under the liberalised policy.
[444 D-F]
ORIGINAL
JURISDICTION: Writ Petition (Civil) No. 1345 of 1989.
(Under
Article 32 of the Constitution of India).
431
WITH
WRIT PETITION (Civil) 1110/89, 869/90, 740/90, 1100/90, 194/91, 195/91, 265/90,
327/91, 337/91, 334/91, 333/91, 330/91, 329/91, 322/91, 432/91, 420/91, 431/91,
573/91, 181/91, 316/91, 381/91, 390/91, 238/91, 686/91, 687/91 & 167/91)
R.K. Garg, R.K.Jain, Govind Mukhoty, Ved Prakash Gupta, Suresh Chand Garg, Ms. Bharti
Sharma, Rani Chhabra, B.S. Chauhan, Gaurav Jain, N.K. Goel, D.B. Vohra, Ms. Abha
Jain, Vijay Hansaria, A.K. Tiwari and C.K. Ratnaparkhi for the Petitioners.
Yogeshwar
Prasad, Mrs. S.Dixit, G.V.Rao, A.V.Rangam, B.Parthasarthy and Ms. A. Subhashini
for the Respondents.
The
Judgment of the Court was delivered by KULDIP SINGH, J. The liberalization for
private sector operations in the Road Transport field - under Section 80 and
other provisions of The Motor Vehicles Act, 1988 - has been challenged in these
bunch-petitions under Article 32 of the Constitution, filed by the
existing-operators, primarily on the ground that they have been adversely
affected in the exercise of their rights under Articles 14 and 19 of the
Constitution of India.
It is
necessary to notice the statutory provisions operating in the field of motor
transport business prior to and after the coming into force of The Motor
Vehicles Act, 1988 (hereinafter called 'the Act') The Motor Vehicles Act, 1939
(hereinafter called 'the old Act was enacted and en- forced with the object of
having closer control to establish a coordinated system of transport. The
subject of 'Mechani- cally Propelled Vehicles' being in List-Ill of the VIIth
Schedule to the Constitution, various amendments were made from time to time by
several State Legislatures either adding to or modifying the provisions of the
old Act. Chap- ter IV of the old Act consisted of sections 42 to 68 provid- ing
"control of transport vehicles". Sections 47 and 57, to the
relevant-extent, are re-produced as under:- "47.Procedure of Regional
Transport Authority in considering application for stage carnage permit- (1) A
Regional Transport Authority shall, in considering an application for a stage
carriage permit, have regard to the following matters, namely:-
(a) the
interest of the public generally;
(b)
the advantages to the public of the serv- ice to be provided, 432 including the
saving of time likely to be effected thereby and any convenience arising from
journeys not being broken;
(c) the
adequacy of other passenger transport services operating or likely to operate
in the near future, whether by road or other means, between the places to be
served:
(d) the
benefit to any particular locali- ty or localities likely to be afforded by the
service;
(e) the
operation by the applicant of other transport services, including those in
respect of which applications from him for permits are pending;
(f)
the condition of the roads included in the proposed route or area, and shall
also take into consideration any representations made by persons already pro-
viding passenger transport facilities by any means along or near the proposed
route or area, or by any association representing persons interested in the
provision of road transport facilities recognized in this behalf by the State
Government, or by any local authority or police authority within Whose
jurisdiction any part of the proposed route or area lies; .................
(3) A
Regional Transport Authority may, having regard to the matters mentioned in
sub-section (1), limit the number of stage carriages generally or of any
specified type for which stage carriage permits may be granted in the region or
in any specified area or on any specified route within the region.
57.
Procedure in applying for and granting permits.- (1) An application for a
contract carriage permit or a private carrier's permit may be made at any time.
(2) An
application for a stage carriage permit or a public carrier's permit shall be
made not less than six weeks before the date on which it is desired that the
permit shall take effect, or, if the Regional Transport Authori- ty appoints
dates for the receipt of such applications, on such dates.
(3) On
receipt of an application for a stage carnage permit or a public carrier's
permit, the Regional Transport Authority shall make the application available
for inspection at the office of the Authority and shall publish the application
or the sub' 433 stance thereof in the prescribed manner to- gether with a
notice of the date before which representation in connection therewith may be
submitted and the date, not being less than thirty days from such publication,
on which, and the time and place at which, the applica- tion and any
representations received will be considered:
Provided
that, if the grant of any permit in accordance with the application or with modi-
fications would have the effect of increasing the number of vehicles operating
in the re- gion, or in any area or any route within the region, under the class
Of permits to which the application relates, beyond the limit fixed in that
behalf under sub-section (3) of Section 47 or sub-section (2) of Section 55, as
the case may be,, the Regional Transport Authority may summarily refuse the
application without following the procedure laid down in this sub-section.
The
old Act was repealed by the Act which came into force on July 1, 1989. The Statement of Objects and
Reasons appended to the Act is re-produced as under:- "The Motor Vehicles
Act, 1939 (4 of 1939), consolidates and amends law relating to motor vehicleS.
This has been amended several times to keep it up to date. The need was,
however, felt that this Act should now inter alia, take into account also changes
in the road trans- port technology, pattern of passenger and freight movements,
development of the road network in the country and particularly the improved
techniques in the motor vehicles management.
2.
Various Committees like National Transport Policy Committee, National Police
Commission, Road Safety Committee, Low Powered Two-wheel- ers Committee, as
also the Law Commission have gone into different aspects of road transport.
They
have recommended updating, simplification and rationalisation of this law.
Several Members of Parliament have also urged for comprehensive review of the
Motor Vehicles Act, 1939, to make it relevant to the modern- day requirements.
3. A
Working Group was, therefore, constitut- ed in January, 1984 to review all the provi-
sions of the Motor Vehicles Act, 1939 and to submit draft proposals for a
comprehensive legislation to replace the existing Act. This Working Group took
into account the suggestion and recommendations earlier made by various bodies
and institutions like Central Institute of Road 434 Transport Automotive
Research Association of India, and other transport organisations including the
manufacturers and the general public. Besides, obtaining comments of State
Governments on the recommendations of the Working Group, these were discussed
in a specially convened meeting of Transport Minis- ters of all States and
Union Territories. Some of the more important modifications so sug- gested
related for taking care of- (a)...........................
(b).............................
(c) the
greater flow of passenger and freight with the least impediments so that
islands of isolation are not created leading to regional or local imbalances;
(d).........................
(e) simplification
of procedure and policy liberalization for private sector operations in the
road transport field; and (f).....................
The
proposed legislation has been prepared in the light of the above background.
Some of the more important provisions of the Bill provide for the following matters,
namely:- (a) to (f) ....................................
(g) liberalized
schemes for grant of stage carriage permits on non-nationalized routes, all-india
tourist permits and also national permits for goods carriages...
(h) to
1) .........................
Chapter
V of the Act-substitute for Chapter IV of the old Act consisting of Sections 66
to 96, provides for 'co- ntrol of transport vehicles'. Sections 71, 72 and 80,
to the relevant extent, are reproduced as under:
"71.Procedure
of Regional Transport Authority in considering application for stage carriage
permit. - (1) A Regional Transport Authority shall, while considering an
application for a stage carriage permit, have regard to the objects of this
Act:
Provided
that such permit for a route of fifty kilometers or less shall be granted only
to an individual or a State transport undertaking.
435
(2) A Regional Transport Authority shall refuse to grant a stage carnage permit
if it appears from any time-table furnished that the provisions of this Act
relating to the speed at which vehicles may be driven are likely to be
contravened:
Provided
that before such refusal an opportunity shall be given to the applicant to
amend the time-table so as to conform to the said provisions.
(3)(a)
The State Government shall, if so directed by the Central Government having
regard to the number of vehicles, road condi- tions and other relevant matters,
by notifica- tion in the Official Gazette, direct a State Transport Authority
and a Regional Transport Authority to limit the number of stage car- riages
generally or of any specified type, as may be fixed and specified in the notifica-
tion, operating on city routes in towns with a population of not less than five
lakhs.....................
(4) A
Regional Transport Authority shall not grant more than five stage carriage
permits to any individual or more than ten stage carriage permits to any
company (not being a State transport undertaking).
(5) In
computing the number of permits to be granted under sub-section (4), the
permits held by an applicant in the name of any other persons and the permits
held by any company of which such applicant is a director shall also be taken
into account.
72.
Grant of stage carriage permits - (1) Subject to the provisions of Section 71,
a Regional Transport Authority may, on an appli- cation 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.
80.
Procedure in applying for and granting permits, - (1) An application for a
permit of any kind may be made at any time.
(2) A
Regional Transport Authority shall not ordinarily refuse to grant an
application for permit of any kind made at any time under this Act:
Provided
that the Regional Transport Authority may summarily refuse the application if
the grant of any permit in 436 accordance with the application would have the
effect of increasing the number of stage carriages as fixed and specified in a notifi-
cation in the Official Gazette under clause (a) of sub-section (3) of section
71 or of contract carriages as fixed and specified in a notification in the
Official Gazette under clause (a) of sub-section (3) of Section 74:
Provided
further that where a Regional Transport Authority refuses an application for
the grant of a permit of any kind under this Act, it shall give to the
applicant in writing its reasons for the refusal of the same and an opportunity
of being heard in the matter." A comparative-reading of the provisions of
the Act and the old Act make it clear that the procedure for grant of permits
under the Act has been liberalised to such an extent that an intended operator
can get a permit for asking irre- spective of the number of operators already
in the field.
Under
Sections 57 read with Section 47(1) of the old Act an application for a stage
carnage permit was to be published and kept for inspection in the office of the
Regional Trans- port Authority so that the existing operators could file
representations/objections against the said application. The application, along
with objections, was required to be decided in a quasi-judicial manner, Section
47(3) of the old Act further permitted the imposition of limit on the grant of
permits in any region, area or on a particular route. It is thus obvious that
the main features of Chapter IV "con- trol of transport vehicles"
under old Act were as under:
1. The
applications for grant of permits were published and were made available in the
office of the Regional Transport Authority so that the existing operators could
file repre- sentations;
2. The
applications for grant of permits along with the representations were to be
decided in quasi judicial manner; and
3. The
Regional Transport Authority was to decide the applications for grant of
permits keeping in view the criteria laid down in section 47(1) and also
keeping in view the limit fixed under Section 47(3) of the Act. An application
for grant of permit beyond the limited number fixed under Section 47(3) was to
be rejected summarily.
The
Parliament in its wisdom has completely effaced the above features. The scheme
envisaged under Section 47 and 57 of the old Act has been completely done away
with by the Act. The right of existing- 437 operators to file objections and
the provision to impose limit on the number of permits have been taken away.
There is no similar provision to that of Section 47 and Section 57 under the
Act. The Statement of Objects and Reasons of the Act shows that the purpose of
bringing in the Act was to liberalize the grant of permits. Section 71(1) of
the Act provides that while considering an application for a stage carriage
permit the Regional Transport Authority shall have regard to the objects of the
Act. Section 80(2), which is the harbinger of Liberalisation, provides that a
Regional Transport Authority shall not ordinarily refuse to grant an
application for permit of any kind made at any time under the Act. There is no
provision under the Act like that of Section 47(3) of the old Act and as such
no limit for the grant of permits can be fixed under the Act. There is,
however, a provision under Section 71(3) (a) of the Act under which a limit can
be fixed for the grant of permits in respect of the routes which are within a
town having popula- tion of more than five lakhs.
The
petitioners are existing stage-carnage operators on different routes. They hold
permits granted by the Regional Transport Authorities concerned. Mithlesh Garg,
petitioner in Civil Writ Petition No. 1345/89 has stated that he holds a stage
carnage permit and plies his vehicles on the Meerut-Parikshitgarh-Hasifabad-Laliana
and allied routes under the jurisdiction of the Regional Transport Authority, Meerut.
According to him prior to the enforcement of the Act, 23 permit-holders were
operating on the said route but thereafter under Section 80 of the Act the
Regional Trans- port Authority, Meerut has issued 272 more permits in re- spect
of the same route. Similar facts have been stated in the other writ petitions.
As mentioned above the petitioners are permit holders and are existing
operators. They are plying their vehicles on the routes assigned to them under
the permits. They are in the full enjoyment of their funda- mental right
guaranteed to them under Article 19(1)(g) of the Constitution of India. There
is no threat of any kind whatsoever from any authority to the enjoyment of
their right to carry on the occupation of transport operators.
There
is no complaint of infringement of any of their statu- tory rights. Their only
effort is to stop the new operators from coming in the field as competitors. We
see no justifi- cation in the petitioners' stand. More operators mean
healthy-competition and efficient transport system. Over- crowded buses,
passengers standing in the aisle, persons clinging to the bus-doors and even
sitting on the roof-top are some of the common sights in this country. More
often one finds a bus which has noisy engine, old upholstry, uncomfortable
seats and continuous emission of black-smoke from the exhaust pipe. It is,
therefore, necessary that there should be plenty of operators on every route to
pro- vide ample choice to the commuter-public to board the vehi- cle of their
choice and patronize the operator who is 438 providing the best service. Even
otherwise the liberal policy is likely to help in the elimination of corruption
and favouritism in the process of granting permits. Re- stricted licensing
under the old Act led to the concentra- tion of business in the hands of few
persons thereby giving rise to a kind of monopoly, adversely affecting the
public interest. The apprehensions of the petitioners, that too many operators
on a route are likely to affect adversely the interest of weaker section of the
profession, is without any basis. The transport business is bound to be
ironed-out ultimately by the rationale of demand and supply. Cost of a vehicle
being as it is the business requires huge invest- ment. The intending operators
are likely to be conscious of the economics underlying the profession. Only
such number of vehicles would finally remain in operation on a particular route
as are economically viable. In any case the transport system in a state is
meant for the benefit and convenience of the public. The policy to grant
permits Liberally under the Act is directed towards the said goal. The
petitioners who are already in the business want to keep the fresh entrants out
of it and as such eliminate the healthy compe- tition which is necessary to
bring efficiency in the trade.
This
Court in Jasbhai Desai v. Roshan Kumar & Ors., [1976] 3 S.C.R. 58 posed the
following questions for its determina- tion:- "Whether the proprietor of a
cinema theater holding a licence for exhibiting cinematograph films, is
entitled to invoke the certiorari jurisdiction ex debito justitiae to get a
'No-Objection Certificate', granted under Rule 6 of the Bombay Cinema Rules,
1954 (for short, the Rules) by the District Magistrate in favour of a rival in
the trade, brought up and quashed on the ground that it suffers from a defect
of jurisdiction, is the principal question that falls to be determined in this
appeal by special leave." Sarkaria, J. speaking for the Court an- swered
the question in the following words:- "In the light of the above
discussion, it is demonstrably clear that the appellant has not been denied or
deprived of a legal right. He has not sustained injury to any legally pro- tected
interest. In fact the impugned order does not operate as a decision against him,
much less does it wrongfully affect his title to something. He has not been
subjected to a legal wrong. He has suffered no legal griev- ance. He has no
legal peg for a justiciable claim to hang on...... While a Procrustean approach
should be avoided, as a rule the Court should not interfere at 439 the instance
of 'stranger' unless there are exceptional circumstances involving a grave
miscarriage of justice having an adverse impact on public interests. Assuming
that the appellant is a 'stranger', and not a busybody, then also, there are no
exceptional circum- stances in the present case which would justi- fy the issue
of a writ of certiorari at his instance. On the contrary, the result of the
exercise of these discretionary powers, in his favour, will, on balance, be
against public policy. It will eliminate healthy competition in this business
which is so essential to raise commercial morality; it will tend to prepetuate
the appellant's monopoly of cinema business in the town; and above all, it
will, in effect, seriously injure the fundamental rights of respondents 1 &
2, which they have under Article 19(1) (g) of the Constitution, to carry on
trade or business subject to 'reasonable restrictions' imposed by law. The
instant case fails well-nigh within the ratio of the this Court's decision in
Rice and Flour Mills v. N.T. Gowda, wherein it was held that a rice mill-owner
has no locus standi to challenge under Article 226, the setting up of a new
rice-mill by another-even if such setting up be in contravention of S. 8(3) (c)
of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in
such an appli- cant is infringed. For all the foregoing reasons, we are of
opinion that the appellant had no locus standi to invoke this special
jurisdiction under article 226 of the Consti- tution. Accordingly, we answer
the question posed at the commencement of this judgment, in the negative."
We, therefore, see on justification for the petitioners to complain against the
liberalised policy for grant of permits under the Act.
Article
19(1)(g) of the Constitution of India guarantees to all citizens the right to
practice any profession, or to carry on any occupation, trade or business
subject to rea- sonable restrictions imposed by the State under Article 19(6)
of the Constitution of India. A Constitution Bench of this Court in Saghir
Ahmad v. The State of U.P. and Others, [1955] 1 S.C.R. 707 held that the
fundamental right under Article 19(1)(g) entitles, any member of the public to
carry on the business of transporting passengers with the aid of the vehicles. Mukerjea,
J. speaking for the Court observed as under:
"Within
the limits imposed by State regula- tions any member of the public can ply
motor vehicles on a public road. To that extent he can also carry on the
business of transporting passen- 440 gers with the aid of the vehicles. It is
to this carrying on of the trade or business that the guarantee in article 19(1)(g)
is attracted and a citizen can legitimately complain if any legislation takes
away or curtails that right any more than is permissible under clause (6) of
that article." It is thus a guaranteed fight of every citizen whether rich
or poor to take up and carry on, if he so wishes, the motor transport business.
It is only the State which can impose reasonable restrictions within the ambit
of Article 19(6) of the Constitution of India. Section 47(3) and 57 of the old
Act were some of the restrictions which were imposed by the State on the enjoyment
of the fight under Article 19(1)(g) so far as the motor transport business was
concerned. The said restrictions have been taken away and the provisions of
Section 47(3) and 57 of the old Act have been repealed from the Statute Book.
The Act provides liberal policy for the grant of permits to those who intend to
enter the motor transport business. The provisions of the Act are in con- formity
with Article 19(1)(g) of the Constitution of India.
The
petitioners are asking this Court to do what the Parlia- ment has undone. When
the State has chosen not to impose any restriction under Article 19(6) of the
Constitution of india in respect of motor transport
business and has left the citizens to enjoy their right under Article 19(1)(g)
there can be no cause for complaint by the petitioners.
On an
earlier occasion this Court dealt with somewhat similar situation. The Uttar
Pradesh Government amended the old Act by the Motor Vehicle (U.P. Amendment)
Act, 1972 and inserted Section 43A. The new Section 43-A apart from making
certain changes in Section 47 of the old A Act also omitted sub-section (3) of
Section 47 of the old Act) Section 43A provided that in the case of non nationalised
routes, if the State Government was of the opinion that it was for the public interest
to grant permits to all eligible applicants it might, by notification in the
official gazette issue a direction accordingly. The necessary notification was
issued with the result that the transport authorities were to proceed to grant
permits as if sub-section (3) of section 47 was omitted and there was no limit
for the grant of permits on any specified route within the region. Section 43-A
and the consequent notification was challenged by the existing operators before
the Allahabad High Court. The High Court dismissed the writ petitions. On
appeal this Court in Hans Raj Kehar & Ors. v. The State of U.P. and Ors.,
[1975] 2 S.C,R. 916 dismissed the appeal. Khanna, J.speaking for the Court held
as under;- "It hardly need much argument to show that the larger number of
buses operating on different routes would be for the conven- 441 ience and
benefit of the travelling public and as such would be in the public interest.
Any measure which results in larger number of buses operating on various routes
would neces- sarily eliminate or in any case minimise long hours of waiting at
the bus stands. It would also relieve congestion and provide for quick and
prompt transport service. Good transport service is one of the basic
requirements of a progressive society. Prompt and quick trans- port service
being a great boon for those who travel, any measure which provides for such an
amenity is in the very nature of things in the public interest.................
The conten- tion that the impugned notification is viola- tive of the rights of
the appellants under article 19(1)(f) or (g) of the Constitution(is equally
devoid of force. There is nothing in the notification which prevents the appel-
lants from acquiring, holding and disposing of their property or prevents them from
practis- ing any profession or from carrying on any occupation, trade or
business. The fact that some others have also been enabled to obtain permits
for running buses cannot constitute a violation of the appellants' rights under
the above two clauses of article 19 of the Consti- tution. The above provisions
are not intended to grant a kind of monopoly to a few bus operators to the
exclusion of other eligible persons. No right is guaranteed to any private
party by article 19 of the Constitution of carrying on trade and business
without compe- tition from other eligible persons. Clause (g) of article 19(1)
gives a right to all citizens subject to article 19(6) to practise any
profession or to carry on any occupation, trade or business. It is an enabling provision
and does not confer a right on those already practising a profession or
carrying on any occupation, trade or business to exclude and debar fresh
eligible entrants from practising that profession or from carrying on that
occupation, trade or business. The said provi- sion is not intended to make any
profession, business or trade the exclusive preserve of a few persons. We,
therefore, find no valid basis for holding that the impugned provisions are violative
of article 19".
The
identical situation has been created by Sections 71, 72 and 80 of the Act by
omitting the provisions of Section 47(3) of the old Act. It has been made
easier for any person to obtain a stage carriage permit under the Act. The
attack of the petitioner on Section 80 on the ground of Article 19 has squarely
been answered by this Court in Hans Raj Kehar's case (supra).
It has
been contended in the writ petitions that differ- ent yard-sticks have been
provided for interregion, intra- region and inter-State permits 442 under the
Act. According to the petitioners the imposition of limit for grant of
inter-State permits is permissible under Section 88(5) of the Act whereas no
such limit can be imposed in respect of intra-region permits. The contention is
that the provisions are discriminatory and are violative of article 14 of the
Constitution of India. We are not impressed by the argument. The three
categories of permit- seekers cannot be considered to be belonging to the same
class. Different criteria have been provided under the Act for granting permits
in respect of each of the categories.
It is
nobody's case that Section 80 brings about discrimina- tion in the matter of
grant of permits between applicants belonging to the same class. The argument
on the ground of Article 14 is thus wholly untenable and is rejected. This
question also came for consideration in Hans Raj Kehar's case (supra) and this
Court rejected the contention in the following words:- "Argument has also
been advanced that the deletion of Section 47(3) would have the effect of
removing the limit on the number of permits for intra-region routes but that
fact would not prevent the imposition of a limit for the number of permits for
inter-region routes. This argument has been advanced in the context of the case
of the appellants that the impugned provisions discriminate in the matter of
issue of permits for intraregion routes and those for inter-region routes and
as such are violative of article 14 of the Constitution.
We are
not impressed by this argument for we find no valid basis for the inference
that if there is no limit on the number _of permits for intra-region routes,limit
on the number of permits for interregional routes would' have to be imposed.
The object of the impugned notification is to liberalise the issue of permits
and we fail to see as to how such a liberal measure can have the effect of
intro- ducing strictness or stringency in the matter of grant of permits for
inter-region routes.
Assuming
that a different rule is applicable in the matter of inter-region routes, the
differentiation is based upon reasonable classification. It is nobody's case
that the impugned provision brings about discrimination in the matter of grant
of permits between applicants belonging to the same class. The argument about
the impugned provision being violative of article 14 is wholly trotenable."
The learned counsel for the writ petitioners, have relied upon a later decision
of this Court in Rameshwar Prasad & Ors., v. State of Uttar Pradesh &
Ors., [1983] 2 S.C.C. 195 and have contended that the decision of this Court in
Hans Raj Kehars case (supra) no longer holds the 443 field. There is no force
in the contention. This Court on two occasions interpreted the old Act as
amended by the State of Uttar
Pradesh at the
relevant times. The provisions of law which were interpreted in Hans Raj Kehar's
case were entirely different than those which were before this Court in Rameshwar
Prasad's ease. The legal position with which we are faced in these writ
petitions is almost similar to that which was considered by this Court in Hans Raj
Kehar's case.
What
happened in the State of Uttar
Pradesh was that
after the U.P. Amendment of 1972 to the old Act, which was subject matter of
interpretation before this Court in Hans Raj Kehars ease, it was found that
certain anomalies had arisean in the working of the liberal policy of granting
permits.
With a
view to remedy the situation the U.P. Legislature amended the old Act again by
the U.P. Act 15 of 1976 permit- ting imposition of limit on the number of
permits to be issued. In spite of the restrictions on grant of permits as
provided in the U.P. Act 15 of 1976 the State Government issued notifications
permitting grant of permits to all eligible applicants without any upper limit.
This Court held in Ratneshwar Prasad's ease that the said notifications were
inconsistent with the limitation as to the number of permits introduced by the
U.P. Amending Act 1976 and as such were bad in law. Venkataramiah, J. (as he
then was) speaking for the Court in Rameshwar Prasad's ease observed as under:
"We
may here state that any observations made in Hans Raj Kehar case would be
inapplicable so far as these cases presently before us are concerned. In that
case the court was con- cerned with sub-section (2) of Section 43-A of the Act
as it stood then which was a provision enacted by the legislature. That
sub-section provided that without prejudice to the gener- ality of the power
contained in Section 43- A(1) of the Act where the State Government was of
opinion that it was in public interest to grant stage carriage permits (except
in re- spect of routes or areas for which schemes have been published under
Section 68-C) or contract carriage permits or public carrier permits to all
eligible applicants it may issue appropriate directions as stated there- in.
That sub-section contained a clear legis- lative policy which considered that
there could be no public prejudice if all eligible applicants were granted
permits. Without saying anything more on the point, it may be slated that
whatever this court may have observed while considering that provision would
not apply now as there is a clear depar- ture made by the legislature from that
policy when it enacted the new sub-section (2) of Section 43-A." It is
thus obvious that the reliance by the petitioners on the ratio and observations
of this Court in Rameshwar Prasad's case is wholly mis- 444 placed. The
Parliament has, under the Act, made a clear departure from the policy and has
reverted to the position which was before this Court in Hans Raj Kehar's case.
Relying
on Rameshwar Prasad's case the petitioners contend that it is in 'public
interest' to limit the grant of permits on intra-region routes and while fixing
the limit various factors indicated by this Court in the said case are to be
taken into consideration. We do not agree. The concept of public interest, in
relation to motor transport business, as propounded by this Court in Rameshwar
Prasad's case was only in the context of the old Act as amended by the U.P.
Act.
We are of the view that the Act having brought-in complete change in the policy
of granting permits, the observations of this Court in Rameshwar Prasad's case
are not relevant in the present context. The provisions of law for
consideration before this Court in Hans Raj Kehar's case were almost similar to
Section 80 of the Act. We are, there- fore, bound by the law laid down by the
four-Judges Bench of this Court in Hans Raj Kehar's case.
The
petitioners have further contended that the condi- tions of roads, social
status of the applicants, possibility of small operators being eliminated by
big operators, condi- tions of hilly routes, fuel availability and pollution
control are some of the important factors which the Regional Transport
Authority is bound to take into consideration while taking a decision on an
application for grant of permit. These are the matters which are supposed to be
within the comprehension of the transport authorities. The legislative policy
under the Act cannot be challenged on these grounds. It is not disputed that
the Regional Trans- port Authority has the power under the Act to refuse an
application for grant of permit by giving reasons. It is for the authority to
take into consideration all the relevant factors at the time of quasi-judicial
consideration of the applications for grant of permits. The statutory
authorities under the Act are bound to keep a watch on the erroneous and
illegal exercise of power in granting permits under the liberalised policy.
We,
therefore, see no force in any of the contentions raised by the petitioners and
as such we dismiss the writ petitions. The parties are left to bear their own
costs.
G.N.
Petitions dis- missed.
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