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CASE NO.: Appeal (civil)  1732 of 2008

PETITIONER: Pancham Chand and others

RESPONDENT: State of Himachal Pradesh and others

DATE OF JUDGMENT: 04/03/2008

BENCH: S.B. SINHA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  1732  OF 2008 (Arising out of SLP ) NO. 1615 OF 2006)

S,B. SINHA, J.

       Leave granted.

1.      Whether Chief Minister of a State has any role to play in a matter of  grant of permit of a Stage Carriage Permit in terms of the provisions of the  Motor Vehicles Act, 1988 (for short the Act) is in question in this appeal  which arises out of a judgment and order dated 15th September, 2005 passed  by a Division Bench of the Himachal Pradesh High Court, Shimla, in  C.W.P. No. 1217 of 2004.

2.      The basic fact of the matter is not in dispute.   

       Appellants are the bus owners.  They applied for grant of stage  carriage permits for different routes before the Regional Transport Officer as  envisaged under Section 70 of the Act.   While Appellant No.1 had applied  for grant of route \026 Tikri to Palampur, Palampur to Chahiar and Palampur to  Jaisinhpur, Appellant No.2 had applied for grant of permit for the route  Palampur to Jaisinhpur, Jaisinhpur to Baijnath and Jaisnhpur to Palampur,  Appellant No.3 had applied for the route Indora to Kaaza, Maclodganj to  Mandi and Damtal to Manali.   

3.      Fourth respondent, who is said to have a political connection being a  leader of Congress Party, approached the State Chief Minister directly by a  letter, which reads thus :-

               "The Hon’ble Chief Minister,                 Himachal Pradesh, Shimla

               Subject :-      Application regarding route permit

               Hon’ble Sir,

With due regards, it is requested that I have  previously requested for the route permit, but I was not  given any route permit in the meeting of RTA.  I have  come to the Oakover and I have again stated that no  buses are running on the route and still then I was not  given any route.  It is, therefore, requested that the  following route may kindly be granted in my favour.

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Baijnath \026 Tikkari \026 Panchrukhi \026 6RT.

               This route was notified, but not issued to any one.

                                                       Yours faithfully,                                                                 Sd/-                                                         (Rajinder Rana)                                                Tehsil Baijnath, District Kangara"        

4.      The said letter was addressed on the letter head of Mandal Congress  Committee, Rajgir Panchukhi, Himachal Pradesh.  Respondent No.4  described himself to be the President thereof.   The said letter was received  in the official residence of the Chief Minister.  The Chief Minister’s office  by a letter dated 9th March, 2004 addressed to the Commissioner (Transport),  Himachal Pradesh, respondent No.5, directed :-

"       It has been approved that permit may be  sanctioned in favour of Shri Rajender Rana, VOP  Rakkar, Tehsil Baijnath Tikri, Panchrukhi-G RT route.   A copy of his application is enclosed.

Commissioner Transport, H.P. is requested to  please take further action accordingly and send  compliance report to this office.

Sd/-                                                               Additional Secretary to                 Dt. 9.3.2004                                      Chief Minister, HP"

5.      The Director Transport-Respondent No.2 herein, in turn,  communicated the said order to the Regional Transport Officer by his letter  dated 16th March, 2004 asking him to place the said proposal in the next  meeting of the Regional Transport Authority after obtaining an application  from the applicant in the prescribed format.  It furthermore appears that the  Chief Minister’s Office again on 9th June, 2004 issued another letter to the  second respondent indicating approval for grant of a route permit in favour  of the 4th respondent.  Respondent No.2 was requested to take action as per  observations of the Hon’ble Chief Minister.   

6.      Indisputably a meeting of the Authority was held on 3rd July, 2004 but  no decision was taken on the applications filed by the appellants, although  the same were made prior in time to that of the one filed by the respondent  No.4, who had approached the Chief Minister.  A Stage Carriage Permit was  granted in favour of the fourth respondent for the said route.  

7.      Aggrieved, a writ petition was filed by the appellants before the  Himachal Pradesh High Court which was marked as CWP No. 1217 of  2004. While issuing notice in the said writ petition, operation of the permit  granted in favour of the fourth respondent was directed to be stayed by the  High Court.   

8.      In their counter-affidavit, the State of Himachal Pradesh, Director  (Transport), Regional Transport Authority and Commissioner (Transport)  inter alia contended that the routes applied for by the appellants and that of  respondent No.4 are different and the permit was granted in his favour   purely on merit.  A rejoinder thereto was filed by the appellants stating that  the permit was being granted only on the instructions of the higher  authorities and not in accordance with law.     

9.      By reason of the impugned judgment the Division Bench of the High  Court dismissed the writ petition of the appellants, stating :-

"       It is the admitted case of the parties that the route  in respect (of) which permit has been granted to

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respondent No.4 is different from the routes in respect of  which applications have been made by the writ  petitioners.  Therefore, in our considered view the writ  petitioners can have no grievance against respondent  No.4.   

       Now the Directorate of Transport, Shimla, vide  communicaton dated 4th January, 2005 (annexure R-1)  with a view to implementing the provision of Section  68(3)(ca) of the Motor Vehicles Act has conveyed the  decision of the State Government to all the Regional  Transport Officers that all the applications pending with  the Regional Transport Authority for grant of route  permit, except those which are in respect of 100%  exclusively rural routes or 109 notified routes, are to be  deemed to have been rejected.  In view of the issuance of  this communication by the Directorate of Transport,  Shimla, we direct respondent No.3, i.e.. Regional  Transport Authority, Dharamshala Through its Secretary,  to consider the pending applications of the writ  petitioners for grant of permits, if those applications or  any of them pertain to route(s) which are 100%  exclusively rural route(s) or which are among 109  notified routes within a period of six weeks from today.   With these directions, the writ petition is disposed of."

10.     Notice was issued by this Court on 30th January, 2006 confined only  to the question as to whether the application for grant of permit filed under  the Motor Vehicles Act can be filed before any authority other than the one  prescribed thereunder.  

11.     Mr. Ravi Bakshi, learned counsel appearing on behalf of the  appellants urged that the High Court committed manifest error in refusing to  apply the legal principles involved in the matter inasmuch as under no  circumstances, applications for grant of permit could be filed before the  Chief Minister or any other authority or processed by them, other than those  specified in the Act.

12.     Mr. J.S. Aattri, learned counsel appearing on behalf of the State and  Dr. R.P. Sharma, learned counsel appearing on behalf of respondent No.4,  on the other hand, urged that the permit was granted having regard to the  need of the public and not under the direction of the Chief Minister.  Even  otherwise it was urged that the State has the requisite jurisdiction to issue  instructions laying down the policy for grant of permits.

13.     The Motor Vehicles Act, 1988 was enacted to consolidate and amend  the law relating to motor vehicles.  While enacting the Act the Parliament  inter alia took into account changes in the road transport 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.    The Parliament also took into consideration the reports of various  Committees and the Working Groups appointed for the said purpose.   

14.     Section  2(41) of the Act defines "permit" to mean a permit issued by  a State or Regional Transport Authority or any authority prescribed in this  behalf under the Act authorizing the use of a motor vehicle as a transport  vehicle.  "Transport vehicle" has been defined in Section 2(47) to mean a  public service vehicle, a goods carriage, an educational institution bus or a  private service vehicle.    

15.     Chapter V of the Act provides for control of transport vehicles.   Section 66 provides for necessity for permits in terms whereof a statutory  embargo has been placed to the effect that no owner of a motor vehicle shall

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use or permit the use thereof as a transport vehicle, save in accordance with  the conditions of a permit granted or countersigned by a Regional or State  Transport Authority or any prescribed authority   

16.     Section 67 of the Act empowers the State Government to control road  transport having regard to the factors enumerated therein.  Section 68  provides for constitution of the State Transport Authority.  An application  for grant of Stage Carriage Permit, as envisaged under Section 69 of the Act,  is to be filed in terms of Section 70 thereof, detailing the particulars  specified therein.  Section 71 provides for the procedures to be followed by  the  Regional Transport Authority in considering application for stage  carriage permit.  Section 72 empowers the Regional Transport Authority to  grant stage carriage permit in respect of any route or the area specified in the  application.  The other provisions contained in the said Chapter provide for  the mode and manner for dealing with the applications for grant of other  types of permits.   

17.     The Act is a self contained Code.  All the authorities mentioned  therein are statutory authorities.  They are bound by the provisions of the  Act.  They must act within the four corners thereof.  The State, although,  have a general control but such control must be exercised strictly in terms of  Article 162 of the Constitution of India.  Having regard to the nature and the  manner of the control specified therein, it may lay down a policy.  Statutory  authorities are bound to act in terms thereof, but per se the same  does not  authorize any Minister including the Chief Minister to Act in derogation of  the statutory provisions.  Constitution of India does not envisage functioning  of the Government through the Chief Minister alone.  It speaks of Council of  Ministers.  The duties or functions of the Council of Ministers are ordinarily  governed by the provisions contained in the Rules of Business framed under  Article 166 of the Constitution of India. All governmental orders must  comply with the requirements of a statute as also the constitutional  provisions.  Our Constitution envisages a rule of law and not rule of men.  It  recognizes that, how so ever high one may be, he is under law and the  Constitution.  All the constitutional functionaries must, therefore, function  within the constitutional limits.   

18.     Apart from the fact that nothing has been placed on record to show  that the Chief Minister in his capacity even as a Member of the Cabinet was  authorized to deal with the matter of transport in his official capacity, he had  even otherwise absolutely no business to interfere with the functioning of the  Regional Transport Authority.  Regional Transport Authority being a  statutory body is bound to act strictly in terms of the provisions thereof.  It  cannot act in derogation of the powers conferred upon it.  While acting as a  statutory authority it must act having regard to the procedures laid down in  the Act.  It cannot bye-pass or ignore the same.   

19.     Factual matrix, as indicated hereinbefore, clearly goes to show that the  fourth respondent filed the application before the Chief Minister  straightaway.   Office of the Chief Minister communicated the order of the  Chief Minister, not once but twice.  Respondent No.2 acted thereupon.  It  advised the Regional Transport Authority to proceed, after obtaining a  proper application from respondent No.4 in that behalf.  This itself goes to  show that prior thereto no proper application was filed before the Regional  Transport Authority.  Such an interference on the part of any authority upon  whom the Act does not confer any jurisdiction, is wholly unwarranted in  law.  It violates the constitutional scheme.  It interferes with the independent  functioning of a quasi judicial authority.  A permit, if granted, confers a  valuable right.  An applicant must earn the same.   

       In D. Nataraja Mudaliar  vs. The State Transport Authority, Madras :  AIR 1979 SC 114 = (1978) 4 SCC 290 this Court held : "9. The Authority must, remember that a permit holder  has an ordinary right of renewal unless it is shown that  outweighing reasons of public interest lead to a contrary  result. Permits are not bounty but right, restricted

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reasonably by the Motor Vehicles Act."

       The application of the respondent No.4, therefore, was to be  entertained alongwith other similarly situated persons.   

20.     In the matter of grant of permit to individual applicant, the State has  no say.  The Chief Minister or any authority, other than the statutory  authority, therefore, could not entertain an application for grant of permit nor  could issue any order thereupon.  Even any authority under the Act,  including the appellate authority cannot issue any direction, except when the  matter comes up before it under the statute.

21.     In Commissioner of Police   vs. Gordhandas Bhanji  : AIR 1952 SC  16, this Court held :-

"       It is clear to us from a perusal of these rules that  the only person vested with authority to grant or refuse a  license for the erection of a building to be used for  purposes of public amusement is the Commissioner of  Police.  It is also clear that under Rule 250 he has been  vested with the absolute discretion at any time to cancel  or suspend any license which has been granted under the  rules.  But the power to do so is vested in him and not in  the State Government and can only be exercised by him  at his discretion.  No other person or authority can do it."  

22.     Yet again in Mohinder Singh Gill and another   vs.  The Chief  Election Commissioner, New Delhi and others : AIR 1978 SC 851 = (1978)  1 SCC 405  "8. The second equally relevant matter is that when a  statutory functionary makes an order based on certain  grounds, its validity must be judged by the reasons so  mentioned and cannot be supplemented by fresh reasons  in the shape of affidavit or otherwise. Otherwise, an order  bad in the beginning may, by the time it comes to court  on account of a challenge, get validated by additional  grounds later brought out. We may here draw attention to  the observations of Bose, J. in Gordhandas Bhanji :  "Public orders, publicly made, in exercise of a  statutory authority cannot be construed in the light  of explanations subsequently given by the officer  making the order of what he meant, or of what was  in his mind, or what he intended to do. Public  orders made by public authorities are meant to  have public effect and are intended to affect the  actings and conduct of those to whom they are  addressed and must be construed objectively with  reference to the language used in the order itself."  Orders are not like old wine becoming better as they  grow older."

23.     It is not a case where the statutory authority was hearing a grievance  from the public that buses are not plying in a particular route as a result  whereof the villagers were suffering.   

24.     Respondent No.4 appears to be the owner of a fleet of buses.  He had  a political connection.  Such political connection encouraged him to file an  application for grant of permit before the Chief Minister directly.   The Chief  Minister could not have entertained the same nor usurp the function of the  Regional Transport Authority.   

25.     Similarly, the respondent No.2 committed a serious illegality in  forwarding the same to the respondent No.3 with the purported

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recommendations of the Chief Minister.   

26.     We also fail to understand as to how an independent quasi judicial  body, like the respondent No.3, could affirm an affidavit together with the  State.  Its duty before the High Court, in response to the rule issued by it,  was to place the facts as borne out from the records.  It was not supposed to  take any stand one way or the other.  It had no business to defend the State  or the Chief Minister.  

27.     For the reasons aforementioned, the appeal is allowed with costs. The  impugned judgment is set aside.  As a limited notice was issued, we need not  pass any consequential order which is within the realm of the Regional  Transport Authority.   

28.     We impose a cost of Rupees one lakh upon the State which may be  paid to the National Legal Services Authority.  The said amount may be  deposited within a period of four weeks failing which it will be open to the  National Legal Services Authority to realize the same with interest @ 12 %  per annum.