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2014 Supreme(J&K) 67
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Tashi Rabstan, J.
Gurdeep Singh -Appellant
Versus
State Of J&K & Ors. -Resopndent
OWP No. 853 of 2009, CMA No. 1111 of 2009 & CMA No. D-2049 of 2010
Decided On : 28-01-2014
S.K. Shukla, B.R. Chandan, K.K. Pangotra, R. Koul.
The main legal point established in the judgment is that the scheme approved under SRO 314 of 1976 only applies to A-Class passenger transport service and not to other classes of passenger transport vehicles. The petitioner was held entitled to a temporary permit under Section 87 of the Act of 1988 for its passenger transport vehicle, excluding A-Class passenger transport service, for the route from Jammu to Srinagar and back, for enabling it to carry out contractual obligations with the Army authorities or for some emergency or temporary need.
Headnote:
Transporter - Contract Dispute - SRO 314 of 1976, SRO 358 of 1974, Section 87 of Motor Vehicles Act of 1988 - The court discussed the applicability of SRO 314 of 1976 and SRO 358 of 1974 in relation to the grant of temporary permits for transporting Army troops. It also considered the provisions of Section 87 of the Motor Vehicles Act of 1988 and the exclusivity of A-Class passenger transport service on the Srinagar-Pathankot route. The court held that the scheme approved by the Government and notified under SRO 314 of 1976 only applies to A-Class passenger transport service and not to other classes of passenger transport vehicles. The petitioner was held entitled to a temporary permit under Section 87 of the Act of 1988 for its passenger transport vehicle, excluding A-Class passenger transport service, for the route from Jammu to Srinagar and back, for enabling it to carry out contractual obligations with the Army authorities or for some emergency or temporary need.
Fact of the Case:
The petitioner, a transporter, was awarded a contract to transport Army troops from Jammu to Srinagar and back. However, the respondents denied the petitioner's request for temporary permits, citing SRO 314 of 1976 and SRO 358 of 1974, which they claimed restricted the grant of permits. The petitioner approached the court seeking relief.
Finding of the Court:
The court found that the scheme approved under SRO 314 of 1976 only applies to A-Class passenger transport service and not to other classes of passenger transport vehicles. The petitioner was held entitled to a temporary permit under Section 87 of the Act of 1988 for its passenger transport vehicle, excluding A-Class passenger transport service, for the route from Jammu to Srinagar and back, for enabling it to carry out contractual obligations with the Army authorities or for some emergency or temporary need.
Issues: The primary issues considered by the court were the applicability of SRO 314 of 1976 and SRO 358 of 1974 in relation to the grant of temporary permits, the exclusivity of A-Class passenger transport service on the Srinagar-Pathankot route, and the denial of temporary permits to the petitioner by the respondents.
Ratio Decidendi: The court held that the scheme approved by the Government and notified under SRO 314 of 1976 only applies to A-Class passenger transport service and not to other classes of passenger transport vehicles. The petitioner was held entitled to a temporary permit under Section 87 of the Act of 1988 for its passenger transport vehicle, excluding A-Class passenger transport service, for the route from Jammu to Srinagar and back, for enabling it to carry out contractual obligations with the Army authorities or for some emergency or temporary need.
Final Decision: The court disposed of the case by holding that the petitioner was entitled to a temporary permit under Section 87 of the Act of 1988 for its passenger transport vehicle, excluding A-Class passenger transport service, for the route from Jammu to Srinagar and back, for enabling it to carry out contractual obligations with the Army authorities or for some emergency or temporary need.
2. Respondent No.5, i.e. Jammu and Kashmir State Road Transport Corporation ("J&KSRTC" in short), which claims to have exclusive right to operate their buses on Jammu-Srinagar national highway, suffers from acute shortage of buses and other infrastructural requirement. Respondent No.5 was, thus, not in a position to meet the demand of buses, which were required by respondent No.7 for carriage of its troops from Jammu to Khanabal-Srinagar and back. In view of failure on the part of respondent No.5 to meet the requirement of Army authorities, respondent No.7 with the permission of respondent No.5 decided to carry its troops by engaging the transport vehicles from private transporters at affordable cost. The troops' movement from Jammu to Srinagar and back is necessitated due to the law and order situation in the Valley and to guard the frontiers of the country. Keeping in view the requirement of Army and the failure of Respondent No.5 to provide adequate fleet of buses to meet the emergent situation, Respondent No.6, vide his Order dated 27th March 2006, promulgated a policy in this regard and made a provision for calling of open bids from the interested parties to carry out the job of transporting Army troops from Jammu to Srinagar and back. In pursuance of the policy decision of Respondent No.6, Respondent No.7 invited bids for Civil Hired Contract (CHT) for carrying the troops from Jammu to Khanabal-Srinagar and back in the year 2008-09. Petitioner along with others participated in the bids and eventually emerged as successful bidder.
3. While the contract for carrying the troops had been awarded in favour of petitioner, respondent No.1 vide order dated 22nd February 2008 ordered, inter alia, that private transporter shall ply their vehicles under the control of Managing Director, J&K SRTC. This communication was challenged by KMD Association Private Limited in the Srinagar Wing of this Hon'ble Court. The Hon'ble Court, vide its order dated 25th March 2008, stayed communication dated 22nd February 2008. The petitioner, thus, successfully carried out the contract in the year 2008-09, though unnecessary and uncalled for hindrances were created by respondents Nos. 1 to 5.
4. Again vide No. 31522/CONT/2009-10/ST-11 dated 12th November, 2008, sealed tenders were invited by Respondent No.7 for carriage of its troops by private transporters from Jammu to Khanabal (Srinagar) and back for the year 2009-10. Petitioner, being eligible in terms of the tender notice, submitted his bid along with many others including respondent No.5 and this time as well emerged as successful bidder for the route Jammu/BD Bari to Srinagar and back. While conveying this to petitioner vide communication dated 13th May, 2009, Respondent No. 7 also called upon petitioner to produce the renewal route permits so as to enable Respondent No.7 to finalize the contract. It would be pertinent to mention here that during the year 2007-08, Transport Commissioner-respondent No.2 issued a communication dated 12th February 2008, granting permission to private transporters for transportation of Army troops only for the remaining period of the financial year, i.e. upto 31st March 2008. Similarly, as already submitted, respondent No.2 vide his communication dated 22nd February 2008, further provided that the private buses, if any, engaged by the Army will ply under the control of respondent No.5. Both these communications came to be challenged by petitioner through medium of OWP No. 329 of 2008, in which petitioner, besides seeking a writ of certiorari quashing aforesaid communications, also sough
