2012 Supreme(P&H) 1640

IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Surya Kant
The Hon’ble Mr. Justice R.P. Nagrath
CWP No.15786 of 1999 (O&M)
M/s. Vijayant Travels & Anr.
v.
State of Punjab & Ors.
{Decided on 20/12/2012}

Headnote:Motor Vehicles--Permit--Stage carriage permit--Held; If the Scheme notified under Section 99 is to the partial exclusion of private operators, the Stage Carriage Permits to the private operators to the extent of their permissibility are to be granted in accordance with the Scheme only and not under Chapter-V of the 1988 Act.

       Motor Vehicles--Permit--Stage carriage permit--Scheme as modified on 20th Dec 2011--Second proviso to Clause (3), and proviso to Clause (10), clause (8) and clause (9) having been found contrary to legislative object of S.99, Scheme is struck down.

       (A) Motor Vehicles Act, 1988, S.99--Permit--Stage carriage permit--Held; So long as a Scheme formulated under section 99 of Act is operative, no stage carriage permit can be issued under Chapter V of 1988 Act.

       (B) Motor Vehicles Act, 1988, S.99--Permit--Stage carriage permit--Held; If the Scheme notified under Section 99 is to the partial exclusion of private operators, the Stage Carriage Permits to the private operators to the extent of their permissibility are to be granted in accordance with the Scheme only and not under Chapter-V of the 1988 Act;

       (C) Motor Vehicles Act, 1988, S.99--Permit--Stage carriage permit--Scheme as modified on 20th Dec 2011--Second proviso to Clause (3), and proviso to Clause (10), clause (8) and clause (9) having been found contrary to legislative object of S.99, Scheme is struck down.

       Second proviso to clause 3-The actual effect of the second proviso when read in conjunction with Clause (3), is that while the private operators continue with their current operations, the STUs can get exclusive permits in ‘future’ only--If the STUs do not have HVAC buses, it is undoubted that they cannot get a Stage Carriage Permit under the second proviso to Clause (3) even in future also--The second proviso thus discreetly creates monopoly in favour of the private operators having the vehicle of a specific ‘make’ which the others might not have--The penultimate effect of the second proviso therefore is directly opposite to the object of Section 99 and hence it cannot sustain in law. (Para 90)

       Proviso to Clause (10)-The mischief behind the insertion of this proviso appears to monopolise in favour of existing operators--If new permits are issued, it is evident that part of them, as per the prescribed ratio [except Clause (4)] will have to be granted to the private operators also by inviting applications and through a transparent modicum--The solitary object of this proviso is to deny the prospective private operators as well as the STUs from seeking additional permits.--In the absence of inbuilt guidelines for the extension of existing permits, proviso to Clause (10) is ex facie arbitrary and cannot stand the test of Article 14 of the Constitution or Section 99 of the 1988 Act--The said proviso to Clause (10) of the Scheme is accordingly struck down. (Para 106)

       Clause (8) and Clause (9)-Having held that Section 217-A is retroactive and operates to cover even those permits which were issued or granted much before it was born or the principal legislation i.e. 1988 Act came into force, we find no difficulty in upholding Clause (9) of the Scheme which enables renewal of the existing permits in accordance with Section 81 of the 1988 Act though with a caveat that the phrase “all existing permits” contained in Clause (9) cannot and shall not include those permits which, by virtue of two decisions of this Court in Sirhind Bus Service Registered & Maharaja Travels Registered and that of the Hon’ble Supreme Court in Jagdip Singh, are deemed to have been granted illegally as such permits cannot be legitimized through the newly added omnibus Clauses (8) & (9) of the Scheme--The petitioners are thus labouring under a wrong misconception that the ‘existing operators’ are being protected through the Scheme whereas the fact of the matter is that they have been shielded by the Legislature through Section 217-A, the vires whereof is not under challenge in these proceedings. (Para 104)

       (D) Motor Vehicles Act, 1988, S.99--Stage carriage permit--Invitation of applications in prescribed period from private operators--Though derogatory to scheme of liberalization the Rule has been framed to give effect to Section 99 of Chapter-VI, namely, the permits to be awarded to private operators under the Scheme--Rule held to be constitutionally valid--Punjab Motor Vehicles Rules, 1989, R.128. (Para 80)

       (E) Motor Vehicles Act, 1988, S.217-A--Renewal of Permits issued or granted under Act of 1939--Held; S.217-A is retro active in nature.

       The purpose, namely, renewal of the permits issued or granted under the 1939 Act which is so explicit in Section 217-A, can be achieved only if the newly added provision is construed to mean that irrespective of the expiry of a permit issued or granted under the repealed Act, it can be renewed and re-validated under the 1988 Act--It does not amount to giving retrospective effect to Section 217-A in the sense that the power thereunder can be invoked to renew the expired permits from a date prior to August 11, 2000--It simply means that the subject provision takes stock of the facts antecedent to its enactment to enable the renewal of expired permits prospectively from the date of its addition to the Statute Book--Section 217-A thus does not create or adversely affect any right retrospectively though it is retroactive in nature. (Para 103)

       (F) Motor Vehicles Act, 1988, S.99--Mini Bus permits issued or renewed illegally are declared illegal, null and void--Punjab Mini Bus Service Scheme, 2010.

       The respondents’ pleas that mini buses are also stage carriage permits of smaller sizes or that the 2010 Mini Bus Scheme is supplemental to the main Scheme of 1990 as modified on December 20, 2011 are totally vague and self-contradictory. If there already is a Scheme in relation to the Stage Carriage Permits, where is the occasion to supplement it with another Scheme relating to such vehicles which are not even owned by the STUs? Drawing support from the decisions in Jagdip Singh and Subhash Chander & Anr. cases and a string of other decisions cited earlier that a Scheme under Section 99 can be formulated only for taking over exclusive or partial operations of road transport services by the State Transport Undertakings, we hold that the impugned Punjab Mini Bus Service Scheme, 2010 neither serves the four-pronged purpose contemplated by Section 99 nor does it conform to the object of the 1988 Act and is consequently struck down in entirety--All the permits issued or renewed under Clause (8)(ii) of the Scheme dated August 9, 1990, under Clause (7-A) of the Scheme as modified on October 21, 1997, under the Punjab Mini Bus Services Scheme, 2007 which lapsed on November 14, 2008 as well as those issued under the 2010 Scheme, are hereby declared illegal, null and void--All those areas or routes for which these illegal mini bus permits were issued or renewed shall be thrown open under Chapter-V of the 1988 Act save as not included in a validly formulated Scheme notified under Sections 99 & 100 of Chapter-VI of the 1988 Act. (Para 123)

       (G) Constitution of India, 1950, Art.19--Reasonable Restriction on Trade or Business--Stage Carriage Permit--Formulation of Scheme, is constitutionally valid--Motor Vehicles Act, 1988, S.99.

       (i) the fundamental right to carry on trade or business within the meaning of Article 19[1][g] is not an absolute right and is subject to not only the reasonable restrictions that the State may impose but also to the law for carrying on any trade, business, industry or service by the State or by a Corporation owned or controlled by the State, whether to the exclusion, complete or partial, of citizens or otherwise;

       (ii) Section 99 of the 1988 Act is consistent with Article 19[6][ii] of the Constitution and it has been so upheld in various cited decisions;

       (iii) Since the Constitution itself enables the State to legislate and monopolise its control over any trade, business, industry or service to the complete or partial exclusion of the citizens, it is unarguable to say that a Scheme to be formulated under Section 99 of the 1988 Act cannot be to the complete or partial exclusion of private operators;

       (iv) Once the State Government formulates a Scheme by following the procedure or the preconditions enumerated in Section 99, such Scheme, notwithstanding anything inconsistent therewith, shall override Chapter-V or any other law for the time being in force;

       (v) There are two facts of the legislative policy embodied in the 1988 Act, namely, liberalization of permits to be issued on demand under Chapter-V so as to infuse a healthy competition inter se amongst the private and State-run operators but the other side engraved in Chapter-VI suspends the liberalized policy and creates monopoly in favour of the STUs on the notified routes provided that it is so necessary in public interest;

       (vi) Thus when there is a Scheme which in itself is law, the liberal policy of Chapter-V becomes quiescent and the entire field is occupied by the Scheme only;

       (vii) If the Scheme has been formulated to the partial exclusion of private operators, the permits in respect of the exempted routes or area or portion thereof shall also be granted under the Scheme only and not under Chapter-V, for the latter becomes latent with the enforcement of the Scheme;

       (viii) As regards the notified routes to be operated upon by the STUs, whether labelled as monopoly routes, State Highways etc., the Authorities under the Act have no discretion except to issue permit in favour of the STUs only for such routes save as where the STUs fail to apply for issuance of permits that proviso to Section 104 can be invoked to issue temporary permits to private operators;

       (ix) The popular terms of the trade like, ‘corridor protection’ or ‘over-lapping routes’ etc. are also to be construed and settled in terms of the notified Scheme.

       (H) Motor Vehicles Act, 1988, S.99--Stage Carriage Permit--Scheme--Haryana Scheme dated November 3, 1993 are also illegal and cannot be validated or renewed under a subsequent Scheme--These permits, however, are directed to be treated as temporary permits till the finalization of the proposed Scheme notified on October 1, 2012 or till September 30, 2013, whichever is earlier. (Para 136)