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Easements (Extending Act V Of 1882 )
Article 19(1)(g) in The Constitution Of India 1949
Section 68 in The Motor Vehicles Act, 1988
The Motor Vehicles Act, 1988
Section 68(1) in The Motor Vehicles Act, 1988

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Punjab-Haryana High Court
Haryana Co-Op. Transport ... vs State Of Haryana And Anr. on 21 February, 2000
Equivalent citations: AIR 2000 P H 230, (2000) 126 PLR 180
Author: G Singhvi
Bench: G Singhvi, I Singh

JUDGMENT

G.S. Singhvi, J.

1. Whether the appointment of the State Transport Commissioner, Haryana (respondent No. 2) as Chairman of the Regional Transport Authorities (for short 'RTAs') is ultra vires to Section 68 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') and whether direction given by respondent No. 2 for renewal of route permits of Co-operative Transport Societies subject to the conditions enumerated in the memo Annexure P-4, dated 21-4-1999 is liable to be quashed are the questions which arise for consideration in this petition filed by the Haryana Co-operative Transport Societies Welfare Association, Kurukshetra.

2. A perusal of the record shows that vide notification No. SC90/CA59/88/100/93 dated 3-11-1993, the Government of Haryana notified scheme for grant of stage carriage permits to the Co-operative Transport Societies of unemployed youths on certain routes in Haryana. In pursuance of that scheme, about 1000 permits were granted on various routes. Two of the conditions incorporated in such permits, which have bearing on the decision of this petition, read as under :--

"21. Permit holder shall ensure that the bus stops to pick up and allows to get off passengers only from the authorised bus stops and no passenger is allowed to board or get down at a non-prescribed bus stop. The operator will have to pay service charges @ Rs. 250/- per bus on monthly basis to the Haryana Roadways for using its bus stops.

29. The State Transport Authority may after giving notice of not less than one month,--

(a) Vary the conditions of the permit,

(b) Attach to the permit further conditions."

3. Vide memo Annexure P-3 dated July 20, 1995, respondent No. 2 directed all the General Managers of Haryana Roadways to charge stand fee from the private Co-operative Transport Societies @ Rs. 5/- per trip instead of lump sum fee @ Rs. 250/- per month. This was challenged in Civil Writ Petition No. 11910 of 1995. However, before the matter could be finally decided by the Court, respondent No. 2 withdrew the decision which was under challenge. After about three years, respondent No. 2 issued the memo Annexure P-4 vide which he directed the Secretaries of the RTAs to renew the bus permits of the private Co-operative Transport Societies subject to the conditions stipulated therein, including the following :--

"4. That in future w.e.f. 1-5-99 the concerned General Manager, Haryana Roadways will charge tripwise stand fee @ Rs. 60/- per trip. The concerned General Manager shall send a regular report to the concerned R.T. A. about the running of every Co-op. Transport Society by 7th day of every month and a copy of this shall be sent to the Head Office. In case a Co-op. Transport Society is found to have missed a trip., the concerned Co-op. Society may be issued a show cause notice for cancellation of permit after receiving a report in this regard.

5. That if any Transport Society miss a trip, then a Haryana Roadways Transport Service will be sent for the facility of the passengers in lieu of that."

4. The petitioner, who claims to be the representative of the Co-operative Transport Societies of unemployed youths, has challenged tripwise levy of stand fee @ Rs. 10/- per trip on the following grounds :--

(a) Respondent No. 2 is not competent to give direction for tripwise levy of stand fee because his own appointment as Chairman of the RTAs is contrary to Section 68 of the Act.

(b) The instructions contained in the same Annexure P-3 cannot be applied qua the transport operators, the tenure of whose permits was to expire after 1-5-1999.

5. The respondents have questioned the locus standi of the petitioner to seek invalidation of the impugned condition on the ground that the tenure of the permits granted to the private Co-operative Transport Societyties has already expired and they cannot seek renewal of the permits without fulfilling the conditions laid down by the department. In the written statement filed on their behalf, it has been averred that one of the conditions of the permits granted to the private Cooperative Transport Societies was that their buses should stop at the authorised bus stops of the Haryana Roadways and for user of such bus stops, stand fee @ Rs. 250/- per month per bus was levied. The purpose of imposing this condition was to ensure that the frequent and regular bus service is made available to the general public. However, on receipt of complaints from the public that the private Co-operative Societies were not providing bus services according to the time table, the system of charging tripwise stand fee was introduced after approval by the Cabinet and it is being charged (r) Rs. 10/-per trip w.e.f. 1-5-1999. The respondents have controverted the petitioner's assertion that the instructions contained in memo Annexure P-3 are violative of the scheme framed by the Government for grant of permits to the private Co-operative Transport Societies of unemployed youths. According to them, the condition relating to levy of stand fee was a part of the permit initially granted to such Societies and after five years of the issuance of permits, they cannot turn around and challenge the levy of stand fee simply because the mode for levy has been changed. The respondents have also defended the appointment of the Transport Commissioner as Chairman of the RTAs by contending that even though he is overall incharge of Haryana Roadways and is connected with the management thereof, he is not personally interested in it.

6. Shri Narender Hooda argued that in view of the prohibition contained in Section 68(2) and third proviso appearing below it, the appointment of respondent No. 2 as Chairman of RTAs should be declared as void. Learned counsel submitted that respondent No. 2 is directly connected with the management and operation of the

Haryana Roadways and, therefore, he cannot be expected to act impartially in his capacity as Chairman of a statutory authority constituted under Section 68(1) which is required to enforce the provisions of Chapter V of the Act qua public as well as private transport operators. Shri Hooda read out the provisions of Chapter V of the Act and submitted that the very purpose of constituting Regional Transport Authority for implementing the provisions contained in Chapter V would be defeated if a person like respondent No. 2, who is vitally interested in the well being of Haryana Roadways, is appointed as Chairman of the RTAs. He referred to the averments made In paragraph 11 of the written statement to show that respondent No. 2 is directly connected with the management and operation of Haryana Roadways and submitted that in view of the prohibition contained in the third proviso to Section 68(2), the State Government could not have appointed respondent No. 2 as Chairman of the RTAs. The learned Deputy Advocate General defended the appointment of respondent No. 2 as Chairman of the RTAs by arguing that he does not have any personal or pecuniary interest in the functioning of the Haryana Roadways. He submitted that in his capacity as Head of the Department, respondent No. 2 is bound to exercise certain degree of control but such departmental interest cannot render him ineligible to be appointed as Chairman of the RTAs. Shri Jaswant Singh laid considerable emphasis on the language of third proviso and argued that the said proviso is meant to preclude the appointment of an official who is connected directly with the management or operation of a private transport undertaking and not a public transport undertaking like the Haryana Roadways.

7. We have thoughtfully considered the respective submissions. Section 68(1) and (2) of the Act which provides for constitution of the State Transport Authority and Regional Transport Authorities and composition thereof reads as under :--

"68. Transport Authorities.-- (1) The State Government shall, by notification in the Official Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in Sub-section (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge through-

out such areas (in this chapter referred to as regions) as may be specified in the notification, in respect of each Regional Transport Authority; the powers and functions conferred by or under this Chapter on such Authorities :

Provided that in the Union Territories, the Administrator may abstain from constituting any Regional Transport Authority.

(2) A State Transport Authority or a Regional Transport Authority shall consist of a Chairman who has had judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law and in the case of a State Transport Authority, such other persons (whether officials or not), not being more than two, as the State Government may think fit to appoint; but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking shall be appointed, or continue to be, a member of a State or Regional Transport Authority, and, if any person being a member of any such Authority acquires a financial interest in any transport undertaking, he shall within four weeks, of so doing, give notice in writing to the State Government of the acquisition of such interest and shall vacate office :

Provided that nothing in this sub-section shall prevent any of the members of the State Transport Authority or a Regional Transport Authority, as the case may be, to preside over a meeting of such Authority during the absence of the Chairman, notwithstanding that such member does not possess judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law:

Provided further that the State Government may,--

(i) where it considers necessary or expedient so to do, constitute the State Transport Authority or a Regional Transport Authority for any region so as to consist of only one member who shall be an official with judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law;

(ii) by rules made in this behalf, provide

for the transaction of business of such authority in the absence of the Chairman or any other member and specify the circumstances under which, and the manner in which, such business could be so transacted.

Provided also that nothing in this subsection shall be construed as debarring an official (other than an official connected directly with the management or operation of a transport undertaking) from being appointed or continuing as a member of any such authority merely by reason of the fact that the Government employing the official has, or acquires, any financial interest in a transport undertaking. XX XX XX XX XX XX"

8. An analysis of the above quoted provisions shows that the State Government is required to constitute State Transport Authority to exercise and discharge the powers and functions specified in Sub-section (3) of Section 68 and Regional Transport Authorities to exercise and discharge the powers and functions conferred by or under Chapter V on such authorities. The composition of State Transport Authority and Regional Transport Authorities is regulated by Sub-section (2) of Section 68. It contains an inbuilt prohibition against the appointment of that person as member of the State or Regional Transport Authority, who has any financial interest, whether as proprietor, employee or otherwise in a transport undertaking. It also provides for vacation of office by a member, who, after becoming member of such authority, acquires any financial interest in any transport undertaking. Third proviso to Section 68(2) enables the Government to appoint an official as a member of such authority even though the Government employing the official has, or acquires, any financial interest in a transport undertaking. This is subject to the condition that the official to be appointed by the Government as member of the State or Regional Transport Authority shall not be connected directly with the management or operation of a transport undertaking. In our opinion, the prohibition contained in third proviso to Section 68(2) is attracted only if the official to be appointed as member of the State or Regional Transport Authority is connected directly with the management or operation of a transport undertaking and not otherwise. The use of the expression "connected

directly" in the said proviso is quite significant. It connotes the active involvement of the person in the day to day management or operation of a transport undertaking. In other words, passive or not so active involvement of an official in the management or operator of a transport undertaking will not render him ineligible from being appointed or continuing as a member of any such authority.

9. The issue deserves to be examined from another angle. The prohibition contained in the substantive part of Section 68(2) speaks of financial interest of the person in his capacity as proprietor, employee or otherwise in any transport undertaking. As against this, under the third proviso to Section 68(2) the direct involvement of an official in the management or operation of a transport undertaking renders him ineligible to be appointed as member of the State or Regional Transport Authority. In our opinion, pecuniary interest of a person, howsoever small it may be, would render him ineligible to be appointed as member in view of the prohibition contained in Section 68(2) but the disability clause contained in the third proviso will be attracted only if it is shown that the official concerned is connected directly with the management or operation of a transport undertaking and not otherwise.

10. In the light of the above, it is to be seen whether the appointment of respondent No. 2 as Chairman of the Regional Transport Authority is hit by the prohibition clause contained in third proviso to Section 68(2). In this context, it is important to bear in mind that in his capacity as Head of Transport Department of the Government of Haryana, respondent No. 2 is overall incharge of Haryana Roadways but he cannot be treated as a person connected directly with the management or operation of Haryana Roadways. His role vis-a-vis Haryana Roadways is only supervisory. The power of managing every day affairs of the Haryana Roadways are vested in the General Managers of the respective depots. Therefore, the prohibition contained in the third proviso to Section 68(2) of the Act is not attracted against the appointment of the State Transport Commissioner as Chairman of the RTAs and we are unable to agree with Shri Hooda that appointment of respondent No. 2 as Chairman of the RTAs is ultra vires to Section 68 of the Act.

11. The issue which remains to be decided is whether the direction issued by respondent No. 2 for levy of stand/adda fee @ Rs. 10/- per trip is vitiated due to violation of the principles of natural justice and the condition of the permits granted to private Co-operative Transport Societies. Shri Narender Hooda argued that the charging of stand fee on per trip basis should be declared illegal and quashed because before introducing the change in the mode of collection of fee, respondent No. 2 did not give one month's notice in terms of para 29 of the conditions subject to which permits were granted to the petitioners. He further argued that the impugned decision should be declared ultra vires to Article 19(1)(g) of the Constitution of India because it amounts to imposition of unreasonable restrictions on the right of the private Co-operative Transport Societies to carry on their business. As against this, the learned Deputy Advocate General submitted that the direction issued vide Annexure P-4, namely, the charging of stand fee @ Rs. 10/- per trip is being enforced qua those private Co-operative Transport Societies who have sought renewal after the expiry of term of their permits and the same is not being enforced qua those, the tenure of whose permits is yet to expire. Shri Jaswant Singh submitted that he has been authorised to make a statement before the Court that the instructions contained in Annexure P-4 will not be made applicable qua those private Co-operative Transport Societies who are stopping buses in accordance with the permits granted in pursuance of the 1993 Scheme.

12. In view of the statement made by the learned Deputy Advocate General, the apprehension expressed by the petitioner about the applicability of the revised instructions to those whose permits are still subsisting and who have not sought renewal must be deemed to have been removed. However, with a view to avoid any further complication. We make it clear that the directions contained in Annexure P-4 cannot be enforced against those whose initial permits were subsisting on 1-5-1999 because respondent No. 2 did not give notice to existing permit holders in accordance with Clause 29 of the conditions of their permits.

13. However, we do not find any sub- stance in the argument of Shri Hooda that

the charging of stand fee on per trip basis is violative of the fundamental right guaranteed to the private Co-operative Transport Societies under Article 19(1)(g) of the Constitution of India or that it amounts to unreasonable restrictions on their right to carry on their transport business. A careful perusal of the record shows that it was one of the conditions of the permits granted to the private Co-operative Transport Societies that they shall use the authorised bus stops of Haryana Roadways and pay service charges @ Rs. 250/- per month per bus. They had unreservedly accepted this condition. Therefore, they are estopped from challenging the levy of stand fee/service charges. The change of the mode of charging the stand fee from Rs. 250/- per month per bus to Rs. 10/- per trip was necessitated because of the general complaints that the Co-operative Transport Societies were not providing bus service according to the time table. In our view, in principle the decision taken by the respondents to charge the stand fee @ Rs. 10/- per bus per trip does not, in any manner, offend the rights guaranteed to the private Co-operative Transport Societies under Article 19(1)(g) of the Constitution of India.

14. In the result, the writ petition is partly allowed. It is declared that Annexure P4 shall be applied only qua those cases in which renewal of permit or a fresh permit was granted on 21-4-1999.