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Judgment
,,,,,,
Mahabir Singh Sindhu, J",,,,,,
A.V. Dicey in his monumental work “The Law of the Constitution†Ist Edition, Macmillan and co., while explaining the rule of law, stated as",,,,,,
under:-,,,,,,
“With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done",,,,,,
without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the Courts and made in,,,,,,
their personal capacity liable to punishment or to the payment of damages for acts done in their official character but in excess of their lawful,,,,,,
authority.â€,,,,,,
India, being an ardent supporter of the rule of law, hosted an event of the International Commission of Jurists comprising 185 judges, practicing",,,,,,
lawyers and teachers of the law from 53 countries across the world (Declaration of Delhi), on January 5-10, 1959 and Committee on",,,,,,
“The Executive and The Rule of Lawâ€, inter alia, came to the following conclusions:-",,,,,,
“Clause VI:,,,,,,
A citizen who suffers injury as a result of illegal acts of the Executive should have an adequate remedy either in the form of a proceeding against the,,,,,,
State or against the individual wrongdoer, with the assurance of satisfaction of the judgment in the latter case, or bothâ€",,,,,,
Clause VII:,,,,,,
Irrespective of the availability of judicial review to correct illegal action by the Executive after it has occurred, it is generally desirable to institute",,,,,,
appropriate antecedent procedures of hearing, enquiry or consultation through which parties whose rights or interests will be affected may have an",,,,,,
adequate opportunity to make representations so as to minimize the likelihood of unlawful or unreasonable executive action.â€,,,,,,
Clause VIII:,,,,,,
It will further the Rule of Law if the Executive is required to formulate its reasons when reaching its decisions of a judicial or administrative character,,,,,,
and affecting the rights of individuals and at the request of a party concerned to communicate them to him.â€,,,,,,
The decisions of above declaration were duly affirmed in next session of the International Body, held at Lagos from January (3-7), 1961.",,,,,,
Our country is a parliamentary democracy; Central Government as well as State Government are vested with powers limited under the Constitution,,,,,,
and in case such a limit is crossed, the remedy of judicial review can be invoked before the Constitutional Courts to preserve the rule of law. The",,,,,,
Hon’ble Supreme Court while emphasizing on the rule of law observed in the following manner:-,,,,,,
“The Constitution of India is the supreme law of the land, having flown from ""We, the people of India, i.e., Bharat, having solemnly resolved to",,,,,,
constitute India into a sovereign, socialist, secular democratic republic. The sovereign power is distributed among the Legislature, the Executive and",,,,,,
the Judiciary with checks and balances but not in water tight rigid would. In our democracy governed by the rule of law, the Judiciary has expressly",,,,,,
been entrusted with the power of judicial review as sentinal in qui vive. Basically judicial review of administrative actions as also of legislation is,,,,,,
exercised against the action of the,,,,,,
State. Since the State or public authorities act in exercise of their executive or legislative power, they are amenable to the judicial review. The State,",,,,,,
therefore, is subject to etat de droit, i.e. the State is submitted to the law which implies that all actions of the State or its authorities and officials must",,,,,,
be carried out subject to the Constitution and within the limits set by the law, i.e., constitutionalism. In other words, the State is to obey the law. The",,,,,,
more the administrative action in our welfare State expands widely touching the individuals, the more is the scope of judicial review of State action.",,,,,,
Judicial review of administrative action is, therefore, an essential part of rule of law, The judicial control on administrative action, thus, affords the",,,,,,
courts to determine not only the constitutionality of the law but also the procedural part of administrative action as a part of judicial review. The,,,,,,
constitution has devised permanent bureaucracy as part of the political executive. By operation of Article 53 read with Articles 73 and 74 as well as,,,,,,
Article 154 read with Articles 163 and 166, the business of the State is carried on in accordance with the rules of business issued by the President/the",,,,,,
Governor, as the case may be, or the rules made for the subordinate officers in that behalf. The normal principle that the permanent bureaucracy is",,,,,,
accountable to the political executive is subject to judicial review. The doctrine of ""full faith and credit"" applied to the acts done by the officers and",,,,,,
presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in",,,,,,
accordance with the procedure prescribed. It is now settled legal position that the bureaucracy is also accountable for the acts done in accordance,,,,,,
with the rules when judicial review is called to be exercised by the Courts. The hierarchichal responsibility for the decision is their in- built discipline.,,,,,,
But the head of the Department/designated officer is ultimately responsible and accountable to the Court for the result of the action done or decision,,,,,,
taken. Despite this, if there is any special circumstance absolving him of the accountability or if someone else is responsible for the action, he needs to",,,,,,
bring them to the notice of the Court so that appropriate procedure is adopted and action taken. The controlling officer holds each of them responsible,,,,,,
at the pain of disciplinary action. The object thereby is to ensure compliance of the rule of law.†[vide (1997) 4 SCC, 430, State of Bihar and others",,,,,,
Versus Subhash Singh, para 3].",,,,,,
Since concept of the rule of law is quite germane for adjudication of the present controversy, therefore, the above background was quite necessary.",,,,,,
This common order shall dispose off above five writ petitions being identical on facts and law.,,,,,,
Petitioners are the existing stage carriage permit holders in terms of an approved Scheme, notified by the State of Haryana under Section 100 (3) of",,,,,,
the Motor Vehicles Act, 1988 (for short ‘the Act’) and plying their buses on the routes in question. Precisely, their grievance is that private",,,,,,
respondents have also been granted/issued impugned temporary permits on those very routes, but illegally, therefore, the same are liable to be set",,,,,,
aside by this Court under Article 226 of the Constitution.,,,,,,
For brevity, the facts have been noticed from CWP No.8087 of 2020 and prayer clause in nutshell could be summarized as under:-",,,,,,
(i) for issuance of a writ in the nature of certiorari to set aside the impugned Offers of Allotment/Letters of Intent (LOI) dated 08.04.2020 (P-13 to P-,,,,,,
31) as well as permits dated 10.04.2020 & 29.04.2020 (P-32 to P-36), issued in favour of private respondents, and information (P-37 to P-50), relating",,,,,,
thereto;,,,,,,
(ii) to set aside all orders, instructions, letters or actions of respondent Nos.2 and 3 for grant/issuance of above said permits;",,,,,,
(iii) to issue any other appropriate writ, order or direction as this Court deems fit & proper in the facts and circumstances of the case(s);",,,,,,
(iv) to stay the operation of impugned permits (P-32 to P-36) as well as the information supplied vide Annexures P-37 to P-50 and to restrain,,,,,,
respondent No.3 from issuing any time table to operate buses on the routes in question.,,,,,,
It is relevant to mention here that operation of the impugned permits was stayed and that is still continuing.,,,,,,
Facts of the case are that:-,,,,,,
In order to provide an efficient, adequate, economical and properly coordinated road transport service, the State of Haryana while exercising powers",,,,,,
under Section 99 (1) of the Act issued a proposal, vide Gazette Notification dated 25.02.2016. After consideration of the objections, the above",,,,,,
proposal was approved under Section 100 (2) of the Act and thereafter in terms of Section 100 (3) of the Act, it was finally published as an approved",,,,,,
Scheme vide Notification dated 17.02.2017 (P-2). Since the initial proposal under Section 99 (1) of the Act was issued in the year 2016, therefore, the",,,,,,
approved Scheme is commonly known as the Stage Carriage Scheme of 2016 (hereinafter referred to as “Scheme of 2016â€).,,,,,,
According to the above Scheme, all the areas and routes whether inter-State or intra-State, except the routes mentioned in the Schedule, shall",,,,,,
exclusively be reserved for grant of the stage carriage permits to the State Transport Undertakings (for short 'STUs'); however, for the routes",,,,,,
mentioned in the Schedule, stage carriage permits can be granted to the STUs, any person or Society/Firm/Company in the State and the operative",,,,,,
part of the Scheme of 2016 reads as under:-,,,,,,
SCHEME,,,,,,
“1. All the area and routes, whether inter-State or intra-State, except the routes mentioned in the Schedule shall exclusively be reserved for grant",,,,,,
of stage carriage permits to the State Transport Undertaking(s).,,,,,,
(i) The stage carriage permits on the routes mentioned in the Schedule shall be granted to the State Transport Undertaking(s), any person, or",,,,,,
society/firm/company in the State.,,,,,,
(ii) The permits shall be granted as per the terms and conditions fixed by the State Government.,,,,,,
(iii) The permit under the Scheme shall be granted to an applicant subject to the clearance of dues in respect of previous permit, if any.",,,,,,
(iv) Variation in the route as per provisions of Motor Vehicles Act, 1988 shall become part of the Schedule. The termini (starting and terminating",,,,,,
points of the route) shall not be altered in case of variation. No extension or curtailment shall be allowed in the route.,,,,,,
The permits already granted under the City Bus Service Scheme, 2004 shall be valid.â€",,,,,,
Undisputedly, all the petitioners were granted stage carriage permits in pursuance of the Scheme of 2016 during the period 17.03.2017 to 28.03.2017,",,,,,,
which are valid for five years.,,,,,,
4 (i) Aggrieved against the Scheme of 2016, some bus operators filed CWP No.5867 of 2017 (‘Nayabash Coop. Transport Society Ltd. And others",,,,,,
Vs. State of Haryana and others’); during the pendency of the same, the State of Haryana came up with an affidavit dated 16.05.2017, in which",,,,,,
inter alia stated that upon reconsideration of the matter, it has been decided to cancel Scheme of 2016 and a fresh draft modified Scheme shall be",,,,,,
notified within a period of two weeks. Also stated that till such time, the existing Scheme is not cancelled, all the permit-holders shall be entitled to ply",,,,,,
their vehicles as per time-table given in the respective permits and whosoever have got their vehicles registered on the ‘Vahan’ portal will be,,,,,,
entitled for the permit under the Scheme of 2016; but after cancellation of the same, everyone will be entitled to temporary permits as per provisions",,,,,,
of Section 99 (2) of the Act (ibid).,,,,,,
Taking into consideration the above factual position, the above writ petition was disposed off by the Division Bench of this Court on 16.05.2017 (P-3)",,,,,,
while observing in the following manner:-,,,,,,
“that the entire exercise to notify the final scheme shall be completed within a period of six months. Let the needful be done. As 2016 scheme will,,,,,,
remain operative till such time new scheme is notified, the State shall be at liberty to issue permits to the applicants, who had already registered on the",,,,,,
portal of the Transport Department namely “Vahanâ€, under the 2016 scheme on the same terms and conditions as are applicable to the persons,",,,,,,
who have been granted permits earlier under the 2016 Scheme, if they fulfill the conditions applicable.â€",,,,,,
In view of above development, the State Government while exercising powers under Section 99 (1) of the Act issued a fresh proposal, vide",,,,,,
Notification dated 20.06.2017 (P-4), known as Draft Scheme of 2017, which was almost identical to the Scheme of 2016, except the change in the",,,,,,
number of routes i.e. from 273 to 452, and the relevant part of the Draft Scheme is extracted as under:-",,,,,,
DRAFT SCHEME,,,,,,
“1. All the area and routes, whether inter-State or intra-State except the routes mentioned in the Schedule shall exclusively be reserved for grant of",,,,,,
stage carriage permits to the State Transport Undertaking(s).,,,,,,
(i) The stage carriage permits on the routes mentioned in the Schedule shall be granted to the State Transport Undertaking(s), any person, or",,,,,,
society/firm/company in the State.,,,,,,
(ii) The permits shall be granted as per the terms and conditions fixed by the State Government.,,,,,,
(iii) The permit under the Scheme shall be granted to an applicant subject to the clearance of dues in respect of previous permit, if any.",,,,,,
(iv) Variation in the route as per provisions of Motor Vehicles Act, 1988 shall become part of the Schedule. The termini (starting and terminating",,,,,,
points of the route) shall not be altered in case of variation.,,,,,,
The permits already granted under the City Bus Service Scheme, 2004 shall be valid.â€",,,,,,
4 (ii) Also noteworthy that feeling aggrieved against the order dated 16.05.2017, referred above, some private operators filed Review Application",,,,,,
(RA-298 of 2017), but the same was disposed off on 21.07.2017 (P-5) with the following clarification:-",,,,,,
“that the stand taken by the State is that the draft scheme has been notified on 23.06.2017 (sic. 20.06.2017) and any applicant can apply for,,,,,,
issuance of a temporary permit on the routes, as specified in the draft scheme, or of his choice including the routes mentioned in the offer of allotment.",,,,,,
On fulfillment of the conditions required for the purpose, the application so filed shall be considered and final decision shall be taken thereon within a",,,,,,
period of one week from the date of filing of the application.â€,,,,,,
It is necessary to mention here that the order dated 16.05.2017, passed by the Division Bench was also challenged in SLP (C) No.22800 of 2017 by",,,,,,
the Haryana Cooperative Transport Society Ltd. along with other private operators and Hon’ble Supreme Court, vide order dated 04.09.2017,",,,,,,
granted status quo, but the same was modified on 13.10.2017. For reference, operative part of both these orders read as under:-",,,,,,
“Order dated 04.09.2017:,,,,,,
Let the matter be listed on 22.09.2017.,,,,,,
In the meantime, status quo, as it exists today, shall be maintained by the parties.â€",,,,,,
“Order dated 13.10.2017:,,,,,,
Heard Mr. P.S. Patwalia, learned senior counsel for the petitioners and Mr.Tushar Mehta, Learned Additional Solicitor General for the respondents.",,,,,,
Having heard learned counsel for the parties, the order of status quo is modified to the following extent:",,,,,,
a) The respondent-State is at liberty to call for objections and offer hearing to the objectors in respect of the Draft Scheme of 2017 but shall not,,,,,,
finalize the same.,,,,,,
b) The transporters who are continuing on the basis of the 2016 Scheme shall be allowed to operate and if any permit has expired, the same shall be",,,,,,
renewed in accordance with law.,,,,,,
c) If any transporter is eligible to obtain the permit in pursuance of the directions given by the High Court, his case shall be considered and shall not be",,,,,,
refused on the ground that a new policy/ scheme is coming..â€,,,,,,
4 (iii) Pursuant to the order dated 16.05.2017, passed in CWP No.5867 of 2017, respondent No.2 issued a Circular dated 07.02.2018 to all the",,,,,,
Secretaries of the RTAs for grant of temporary permits under the Draft Scheme of 2017 and Circular reads as under:-,,,,,,
“ Government of Haryana,,,,,,
Transport Commissioner, Haryana, Chandigarh",,,,,,
To,,,,,,
All Secretaries,,,,,,
Regional Transport Authorities in State of Haryana,,,,,,
No.9334-9356/T-1/ST-II,,,,,,
Dated: 07.02.2018,,,,,,
Sub: Grant of temporary permit under the draft State Carriage Scheme 2017.,,,,,,
In reference to above.,,,,,,
It is to inform you that the Haryana Govt. has published the draft of new Stage Carriage Scheme 2017 vide notification No. 17/10/2011-3T(II) dated,,,,,,
20.06.2017. The Department has taken the decision to issue the temporary permits under Stage Carriage Scheme 2017 for which the terms and,,,,,,
conditions have been made which is sent for favour of further action.,,,,,,
You are hereby directed that the issuance of temporary permits under the Draft of Stage Carriage Scheme 2017 be made keeping in view the terms,,,,,,
and conditions attached as also in view of the following:-,,,,,,
It be made sure that the entry be made in the register as per the proforma sent for seeking the details of the applications.,,,,,,
On every application, the Sr.No. of the application be made.",,,,,,
Incomplete application will not be accepted and in case of unacceptance the reasons be given to the applicant in writing.,,,,,,
The details of the draft received as fee enclosed with the application, be kept and without any delay be got deposited as per the directions of the",,,,,,
department.,,,,,,
The recipient official will affix its stamp and name.,,,,,,
Permanent time table of the buses on the route will be given within 60 days and till then temporary time table will be issued at the time of grant of,,,,,,
permit.,,,,,,
Sd/-,,,,,,
For Transport Commissioner,",,,,,,
Haryana, Chandigarh.â€",,,,,,
The above communication was challenged in CWP No.4345 of 2018 (Bhanu Cooperative Transport Society Limited and others Vs. State of Haryana,,,,,,
and others), wherein operation of the same was stayed by the Single Bench of this Court, vide order dated 23.02.2018.",,,,,,
Also necessary to mention here that while disposing of a bunch of cases along with CWP No.7671 of 2018, another Single Bench of this Court vide",,,,,,
order dated 22.07.2019 granted permission for temporary permits in terms of Section 99 (2) of the Act for a period of one year as an interim measure,,,,,,
without creating any right to ply buses on regular basis subject to the directions of Hon’ble Supreme Court in SLP(C) No. 22800 of 2017.,,,,,,
While taking into consideration the order dated 22.07.2019, CWP No.4345 of 2018 challenging the circular dated 07.02.2018 was also disposed off by",,,,,,
the same Bench on 24.09.2019 and against that, LPA No.2052 of 2019 was filed.",,,,,,
Another writ petition i.e. CWP 6343 of 2018 (‘Chahal Cooperative Transport Society Ltd. and others Vs. State of Haryana and others), similar to",,,,,,
CWP No.7671 of 2018, was also disposed off on 21.11.2019, which was also challenged in LPA No.1974 of 2019. This LPA was clubbed with LPA",,,,,,
No.2052 of 2019 and the Division Bench restrained the State of Haryana from taking any further steps in the matter vide order dated 04.12.2019 and,,,,,,
the same reads as under:-,,,,,,
“Issue notice of motion to the respondents.,,,,,,
Mr. Sharad Aggarwal, Assistant Advocate General, Haryana accepts notice on behalf of respondents No.1 to 4. Necessary extra sets of petition be",,,,,,
supplied to enable him to submit response within a period of four weeks.,,,,,,
In the meanwhile, it is clarified that the parties shall strictly comply with the interim order passed by the Supreme Court dated 13.10.2017 in Special",,,,,,
Leave Petition (Civil) No. 22800 of 2017 “The Haryana Cooperative Transport Society Ltd. and others v. State of Haryana and othersâ€.,,,,,,
It is further clarified that no steps would be taken by the respondents or any of the parties in purported compliance of the order passed by the learned,,,,,,
Single Judge which would ultimately result in violation of the interim order passed by the Supreme Court.â€,,,,,,
Also necessary to mention here that both the above LPAs are stated to be pending for 20.05.2021.,,,,,,
The order dated 24.09.2019, passed in CWP No. 4345 of 2018, was also challenged in SLP (C) No.26446 of 2019 and which was ordered to be heard",,,,,,
along with SLP (C) No.22800 of 2017.,,,,,,
4 (iv) Hon’ble Supreme Court, after granting leave in the above SLPs, disposed off the same on 21.01.2020 while passing the following order:-",,,,,,
“Applications for impleadment/ intervention are allowed.,,,,,,
Leave granted.,,,,,,
These matters were heard on 13.10.2017 when this Court passed the following order:-,,,,,,
“Having heard learned counsel for the parties, the order of status quo is modified to the following extent:",,,,,,
a) The respondent-State is at liberty to call for objections and offer hearing to the objectors in respect of the Draft Scheme of 2017 but shall not,,,,,,
finalize the same.,,,,,,
b) The transporters who are continuing on the basis of the 2016 Scheme shall be allowed to operate and if any permit has expired, the same shall be",,,,,,
renewed in accordance with law.,,,,,,
c) If any transporter is eligible to obtain the permit in pursuance of the directions given by the High Court, his case shall be considered and shall not be",,,,,,
refused on the ground that a new policy/ scheme is coming.â€,,,,,,
In response to the above order, the State Government has examined the matter at the highest level and it is stated across the Bar by the counsel for",,,,,,
the State that the State Government has decided to withdraw the Draft Scheme of 2017 and all the dispensations afforded under that Scheme. In,,,,,,
other words, the Draft Scheme of 2017, which was the subject matter of challenge in the present proceedings stands completely nullified. We accept",,,,,,
this statement.,,,,,,
The State Government has sought permission to take lawful, permissible action under Section 102 of the Motor Vehicles Act, 1988 to cancel or modify",,,,,,
the Stage Carriage Scheme 2016 by following the prescribed procedure under the law in order to remove all the defects therein.,,,,,,
We find no reason to refuse this permission. The State Government may proceed in the matter in accordance with law after giving due opportunity to,,,,,,
all concerned.,,,,,,
In view of the statement made on behalf of the State Government, referred to above, which we have accepted, nothing remains for consideration in",,,,,,
these appeals. However, we make it clear that all future actions be proceeded in accordance with law.",,,,,,
The appellant (s)/ applicant (s) or any other eligible person will be free to make application (s) to the concerned authority, if already not made, for",,,,,,
registration and for grant of permit within one week from today, and if so made, the competent authority may consider the same as per law",,,,,,
expeditiously and in any case before 20th March, 2020.",,,,,,
If the appellant (s)/ applicant (s) are aggrieved by any decision taken by the competent authority, it will be open to them to pursue such other remedies",,,,,,
as may be permissible in law including under Section 100 (2) of the Motor Vehicles Act, 1988.",,,,,,
In view of the above, nothing survives for consideration in these appeals. Accordingly, the appeals and pending applications, if any, are disposed of.â€",,,,,,
Thereafter, on 28.01.2020, upon mentioning by the appellants, Hon’ble Supreme Court ordered for minor correction in the penultimate paragraph",,,,,,
of the order dated 21.01.2020 to the effect that “Section 100 (2) of the Motor Vehicles Act, 1988†be read as “Section 102 of the Motor",,,,,,
Vehicles Act, 1988â€.",,,,,,
Sr.
No.","Name and address of the
applicant","Details of the route applied for
under the State Carriage Scheme
of 2016",,,,
,,,,,,
Sr.
No.",Category,"No. of permits to be
issued under the Stage
Carriage Scheme of 2016",,,,
1.,"Applicants who have
applied from 21.01.2020 to
28.01.2020 along with DDA
of Rs.25000/- (Category-A)",328,,,,
2.,"Applicant to whom
temporary permits have
been grantedunder draft
Stage Carriage Scheme of
2017 (Category B-I)",93,,,,
3.,"Applicants who had
brought the buses under the
Stage Carriage Scheme of
2016 within 90 days of
issue of LOI but permits
couldn’t be granted to
them
(Category B-II)",9,,,,
4.,"Applicants who have
purchased the buses for the
grant of permit under the
Stage Carriage Scheme of
2016 or 2017 but permit
was not granted to them
(Category C)",197,,,,
Name of
the
District","Applicants
who have
applied
from
21.01.2020
to
28.01.2020
along with
DDA of
Rs.25,000/-
(Category-
A)","Applicant
to whom
temporary
permits
have been
granted
under draft
Stage
Carriage
Scheme of
2017
(Category
B-I)","Applicants
who had
brought the
buses under
the Stage
Carriage
Scheme of
2016 within
90 days of
issue of
LOI but
permits
could not
be granted
to them
(Category
B-II)","Applicants
who have
purchased
the buses
for the
grant of
permit
under the
Stage
Carriage
Scheme of
2016 or
2017 but
permit was
not
granted to
them
(Category
C)",,
Ambala,NIL,1,NIL,1,,
Bhiwani,16,NIL,NIL,NIL,,
Ch.
Dadri",9,NIL,NIL,10,,
Faridaba
d",NIL,NIL,NIL,NIL,,
Fatehaba
d",44,4,1,6,,
Gurgaon,3,NIL,NIL,19,,
Hisar,39,15,NIL,60,,
Jhajjar,46,11,NIL,10,,
Jind,43,17,NIL,21,,
Kaithal,28,5,NIL,18,,
Karnal,1,17,NIL,17,,
Kurukshe
tra",25,NIL,NIL,2,,
Narnaul,5,1,NIL,1,,
Nuh,NIL,NIL,NIL,NIL,,
Palwal,NIL,NIL,NIL,7,,
Panchkul
a",10,NIL,NIL,2,,
Panipat,1,NIL,5,5,,
Rewari,9,7,1,4,,
Rohtak,43,14,NIL,12,,
Sirsa,NIL,1,NIL,NIL,,
Sonipat,6,NIL,2,2,,
Yamunan
agar",NIL,NIL,NIL,NIL,,
Total,328,93,9,197,,
(vi) The petitioners were granted stage carriage permits during 17.03.2017 to 28.03.2017, for a period of five years and they are plying their buses on",,,,,,
the routes in question to the entire satisfaction of general public as well as of authorities concerned. They are also paying taxes, thus, fairly",,,,,,
contributing to the State exchequer; but their rights to carry on business emanating from Article 19 (1) (g) of the Constitution have been infringed by,,,,,,
the private respondents under the garb of illegal temporary permits and as such, the actions of the official respondents are not sustainable in law;",,,,,,
(vii) Since 1993, the State Government has come up with one after another Scheme under the Act, but due to non-application of mind, they are not",,,,,,
able to put in place the proper Scheme. It is a matter of record that on 16.05.2017, respondent No.2 while filing an affidavit before the Division Bench",,,,,,
of this Court stated that the Government has decided to cancel the Scheme of 2016 and as a result thereof, Draft Scheme of 2017 was issued, but,",,,,,,
now on 21.01.2020, the Government has withdrawn the Draft Scheme of 2017 along with all its dispensations with an assurance to the Hon’ble",,,,,,
Supreme Court to cancel or modify the Scheme of 2016; however, till date, no concrete steps have been taken in this regard;",,,,,,
(viii) The State of Haryana itself has withdrawn the Draft Scheme of 2017 along with all its dispensations on 21.01.2020, therefore, the stand of the",,,,,,
official respondents that applications of the private respondents were pending under the said Scheme is wholly erroneous. When the Draft Scheme of,,,,,,
2017 itself has been withdrawn, then there is no occasion for the respondents to contend that applications, submitted under that Scheme are still valid",,,,,,
in law for grant of permits under the Scheme of 2016. Also,,,,,,
submitted that under the Draft Scheme of 2017, the applicant(s) was/were required to deposit a fee of Rs.2000/-, whereas under the Scheme of 2016,",,,,,,
an application should be accompanied by way of demand draft of Rs.25,000/- and in the absence thereof, the same cannot be entertained. It is a",,,,,,
matter of record that demand drafts submitted by all the private respondents pertain to the period 29.01.2020 to 20.03.2020 i.e. subsequent to the,,,,,,
dead-line fixed by the Hon’ble Supreme Court, therefore, by no stretch of imagination, it could be construed that impugned permits were",,,,,,
granted/issued on the basis of applications submitted under the Draft Scheme of 2017;,,,,,,
(ix) Although, State of Haryana tried to justify the grant of impugned permits on the premise that private respondents have purchased buses after",,,,,,
making huge investment and paying taxes to the Government, but that would not be treated as a vested right to ask for permits as a matter of course",,,,,,
without following the provisions of law. Since in the present case, there is absolute non-compliance of the provisions of Section 104 of the Act",,,,,,
inasmuch as no order at all has been passed by respondent No.3 while granting/issuing the impugned permits; rather, it is clearly admitted in their reply",,,,,,
that impugned permits were granted in compliance with the Government decision dated 30.03.2020. Also submitted that despite repeated asking of the,,,,,,
petitioners, no order(s) regarding consideration of the applications of the private respondents has been supplied by respondent No.3 and reference in",,,,,,
this regard was made to para Nos.21 and 22 of the writ petition;,,,,,,
(x) The moment petitioners came to know about the issuance of the impugned permits, they immediately objected the actions of official respondents,",,,,,,
but due to COVID-19, petitioners were not able to get the receipts regarding their objections, however, a copy of one such representation dated",,,,,,
20.02.2020, made by Ramesh Kumar (petitioner in CWP No. 7420 of 2020) has been appended as P-10 and reference in this regard is made to para",,,,,,
14 of the writ petition;,,,,,,
(xi) If there was any doubt in the mind of the official respondents regarding the import of the order dated 21.01.2020 on the point for consideration of,,,,,,
the pending applications under the Draft Scheme of 2017, then appropriate course open for them was to move an appropriate application before the",,,,,,
Hon’ble Supreme Court for clarification or modification of the above order, but certainly at their own, it cannot be interpreted in a manner they",,,,,,
wanted;,,,,,,
(xii) The actions of the official respondents while issuing Memo dated 30.03.2020; consequent offer of allotments/ LOIs as well as impugned permits,,,,,,
are totally illegal, arbitrary, unconstitutional and without jurisdiction, thus, the petitioners are entitled to invoke the jurisdiction of this Court under Article",,,,,,
226 of the Constitution. Reference in this regard is made to judgment of the Hon’ble Supreme Court in 'Sai Chalchitra Vs. Commissioner, Meerut",,,,,,
Mandal and others', (2005) 3 SCC 683;",,,,,,
(xiii) Undisputedly, the petitioners were operating their buses on the routes in question where private respondents have been granted temporary",,,,,,
permits in a secret manner inasmuch as the information was sought by respondent No.2 from all the Secretaries regarding total applications for,,,,,,
seeking permits, within one day in terms of letter dated 20.03.2020 (P-11) without affording any opportunity of hearing to the petitioners being the",,,,,,
affected parties, thus, the action of official respondents violated the principle of natural justice.",,,,,,
ARGUMENTS ON BEHALF OF THE STATE:,,,,,,
(i) The Hon’ble Supreme Court while passing the order dated 21.01.2020, neither prohibited the competent authority to grant permits to the",,,,,,
applicant(s), who submitted their applications after 28.01.2020; nor there was any such observation to the effect that the applications received",,,,,,
between 21.01.2020 to 28.01.2020 would “only†be considered.,,,,,,
Since in the present case(s), private respondents submitted their applications prior to the order dated 21.01.2020 either under the Scheme of 2016 or",,,,,,
Draft Scheme of 2017, therefore, there was nothing wrong while granting/issuing impugned permits in their favour.",,,,,,
(ii) Just for safer side, the applicants, who had submitted their applications either under Draft Scheme of 2017; or Scheme of 2016, but could not be",,,,,,
granted permits due to operation of the interim stay, were asked to submit fresh applications along with demand draft of Rs.25,000/- in terms of",,,,,,
Scheme of 2016, therefore, the same cannot be construed that their applications were received after the cut-off date i.e. 28.01.2020;",,,,,,
(iii) The Hon’ble Supreme Court while passing the order dated 21.01.2020 disposed off matter on the basis of proposal given by the State,,,,,,
Government while permitting the appellants/applicants or any other eligible person to make applications within one week i.e. up to 28.01.2020, if not",,,,,,
already made; but in the cases in hand, as submitted above, the applications of the private respondents were already pending before the Authorities,",,,,,,
therefore, it is wrong to allege that they were granted permits based on the applications submitted after above deadline.",,,,,,
(iv) All the petitioners have been granted permits under the Scheme of 2016, which is open for all being valid as on today. Any person or Society/",,,,,,
Firm/ Company in addition to the STUs can apply for permits and there is no ceiling fixed regarding the number of such permits on the notified routes,,,,,,
and as such, the State Government has rightly followed the equality clause enshrined under Article 14 of the Constitution while granting impugned",,,,,,
permits to the private respondents;,,,,,,
(v) The petitioners being the existing operators want to create their monopoly and wish to obstruct the plying of buses by the private respondents,,,,,,
despite the fact that they have also been issued the valid temporary permits. While concealing true facts, petitioners obtained an interim stay from this",,,,,,
Court and stopped the plying of buses of private respondents without there being any cause of action; rather they have completely misused the,,,,,,
process of the Court in the wake of public interest to secure their private interest;,,,,,,
(vi) The petitioners have selectively impleaded the private respondents as parties and deliberately, did not challenge the permits granted in favour of",,,,,,
some other persons for the reasons best known to them, thus, they have not approached the Court with clean hands, rather this shows their mala fide",,,,,,
intention;,,,,,,
(vii) The actions of the official respondents while granting the impugned permits are perfectly in accordance with the Act, Rules of 1993 and Scheme",,,,,,
of 2016; but on the other hand, petitioners have miserably failed to show the violation of any relevant provisions of law or infringement of their legal",,,,,,
right, thus, they have no locus standi to invoke the jurisdiction of this Court under article 226 of the Constitution;",,,,,,
(viii) Although, there is no violation of the order dated 21.01.2020, referred above, but even if it is found, then appropriate course for the petitioners",,,,,,
would be to file a Contempt Petition before the Hon’ble Supreme Court, instead of invoking the jurisdiction of this Court by way of the present",,,,,,
writ petition(s);,,,,,,
(ix) Private respondents after making huge investment purchased buses; paying taxes to the Government as well as salaries to the drivers &,,,,,,
conductors and they were granted temporary permits for a period of one year, thus, in case the same are invalidated by this Court, the general public",,,,,,
would suffer;,,,,,,
(x) Petitioners have merely annexed the copy of Memo dated 30.03.2020 with their writ petition(s), but there is no specific prayer for setting aside of",,,,,,
the same and as such, they cannot be permitted to challenge the above Memo during the course of arguments.",,,,,,
ARGUMENTS ON BEHALF OF PRIVATE RESPONDENTS,,,,,,
(i) Apart from supporting the contentions raised on behalf of the State, it is submitted by learned counsel for the private respondents that petitioners",,,,,,
have concealed the availability of alternative remedies by way of an Appeal as well as Revision under Sections 89 and 90 of the Act, respectively,",,,,,,
therefore, the writ petitions are liable to be dismissed only on this ground.",,,,,,
Further submitted that petitioners did not approach this Court with clean hands and obtained the interim stay order against the impugned temporary,,,,,,
permits by concealing true facts of the case(s).,,,,,,
Also submitted that the State of Haryana on 21.01.2020 while making a statement before Hon’ble Supreme Court has withdrawn the Draft,,,,,,
Scheme of 2017 along with all its dispensations, but that will not include the pending applications submitted thereunder. Learned counsel while relying",,,,,,
upon the definition of word ‘dispensation’ from ‘Oxford Dictionary’ submitted that ‘dispensation’ means “the action of,,,,,,
distributing or supplying somethingâ€; therefore, according to him, the term ‘dispensation’ is to be construed with reference to the permits only",,,,,,
and not regarding the pending applications under the Draft Scheme of 2017. Thus at best, the State Government decided to withdraw the permits",,,,,,
granted under Draft Scheme of 2017 and not the pending applications. In other words, the contention of learned counsel for the private respondents is",,,,,,
that the Government has never withdrawn the applications pending under the Draft Scheme of 2017; rather only the permits issued thereunder were,,,,,,
sought to be withdrawn and nothing beyond that.,,,,,,
Heard learned counsel for the parties and perused the paperbook as well as the photocopies of the records supplied by learned State Counsel.,,,,,,
The points for consideration to decide the matter in controversy would be as under:-,,,,,,
(A) Whether in view of the facts and circumstances of the present case(s), the State Government was empowered in law to take the purported",,,,,,
executive decision communicated vide Memo dated 30.03.2020?,,,,,,
(B) Whether impugned offer of allotments/LOIs and permits granted/issued in favour of the private respondents are legally sustainable?,,,,,,
POINT ‘A’:,,,,,,
Although, learned State Counsel seriously objected to the contention raised on behalf of the petitioners to challenge the Memo dated 30.03.2020, but",,,,,,
the same is liable to be rejected due to the following reasons:-,,,,,,
(a) In the present case(s), apart from challenging the impugned offer of allotment/ LOIs and permits, specific prayer has been made on behalf of the",,,,,,
petitioners for setting aside “all orders, instructions, letters or actionsâ€, thus, the prayer clause as summarized in para No.3 (supra) of this order",,,,,,
will cover Memo dated 30.03.2020 as well.,,,,,,
(b) Respondent No.2 while circulating above decision of the State Government directed all the Secretaries for its compliance and in response thereto,",,,,,,
the impugned permits were granted/issued, therefore, it would be most relevant to examine the legality of the above said Memo, which will go to the",,,,,,
root of the case(s).,,,,,,
Concededly, the Draft Scheme of 2017 was only a proposal issued under Section 99 (1) of the Act, which has been withdrawn by the State",,,,,,
Government along with all the dispensations afforded thereunder and in view of the order dated 21.01.2020, passed by the Hon’ble Supreme",,,,,,
Court, the above Draft Scheme stands nullified.",,,,,,
This is an admitted position that till date, the State Government has neither cancelled; nor modified the Scheme of 2016 and all the impugned permits",,,,,,
have been issued under this very approved Scheme.,,,,,,
Under the Act, there are three different provisions, which deal with the grant of temporary permit viz. Sections 87, 99 & 104 and the same read as",,,,,,
under:-,,,,,,
“Section 87. Temporary permits.â€"(1) A Regional,,,,,,
Transport Authority and the State Transport Authority may without following the procedure laid down in section 80, grant permits to be effective for a",,,,,,
limited period which shall, not in any case exceed four months, to authorise the use of a transport vehicle temporarilyâ€"",,,,,,
(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or",,,,,,
(b) for the purposes of a seasonal business, or",,,,,,
(c) to meet a particular temporary need, or",,,,,,
(d) pending decision on an application for the renewal of a permit, and may attach to any such permit such condition as it may think fit:",,,,,,
Provided that a Regional Transport Authority or, as the case may be, State Transport Authority may, in the case of goods carriages, under the",,,,,,
circumstances of an exceptional nature, and for reasons to be recorded in writing, grant a permit for a period exceeding four months, but not",,,,,,
exceeding one year.,,,,,,
(2) Notwithstanding anything contained in sub-section,,,,,,
(1), a temporary permit may be granted thereunder in respect of any route or area whereâ€"",,,,,,
(i) no permit could be issued under section 72 or section 74 or section 76 or section 79 in respect of that route or area by reason of an order of a court,,,,,,
or other competent authority restraining the issue of the same, for a period not exceeding the period for which the issue of the permit has been so",,,,,,
restrained;,,,,,,
(ii) as a result of the suspension by a court or other competent authority of the permit of any vehicle in respect of that route or area, there is no",,,,,,
transport vehicle of the same class with a valid permit in respect of that route or area, or there is no adequate number of such vehicles in respect of",,,,,,
that route or area, for a period not exceeding the period of such suspension:",,,,,,
Provided that the number of transport vehicles in respect of which temporary permits are so granted shall not exceed the number of vehicles in,,,,,,
respect of which the issue of the permits have been restrained or, as the case may be, the permit has been suspended.",,,,,,
Section 99. Preparation and publication of proposal regarding road transport service of a State transport undertaking.â€"(1) Where any State,,,,,,
Government is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is",,,,,,
necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion,,,,,,
thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the",,,,,,
State Government may formulate a proposal regarding a scheme giving particulars of the nature of the services proposed to be rendered, the area or",,,,,,
route proposed to be covered and other relevant particulars respecting thereto and shall publish such proposal in the Official Gazette of the State,,,,,,
formulating such proposal and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such,,,,,,
scheme and also in such other manner as the State Government formulating such proposal deem fit.,,,,,,
(2) Notwithstanding anything contained in sub-section,,,,,,
(1), when a proposal is published under that sub-section, then from the date of publication of such proposal, no permit shall be granted to any person,",,,,,,
except a temporary permit during the pendency of the proposal and such temporary permit shall be valid only for a period of one year from the date of,,,,,,
its issue of till the date of final publication of the scheme under section 100, whichever is earlier.]",,,,,,
Section 104. Restriction on grant of permits in respect of a notified area or notified route.â€"Where a scheme has been published under sub-section,,,,,,
(3) of section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may",,,,,,
be, shall not grant any permit except in accordance with the provisions of the scheme:",,,,,,
Provided that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in,,,,,,
pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary",,,,,,
permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue,,,,,,
of a permit to the State transport undertaking in respect of that area or route.â€,,,,,,
Perusal of sub-Section (1) of Section 87, inter alia, reveals that Regional Transport Authority and the State Transport Authority, (for short",,,,,,
‘RTA’ and ‘STA’, respectively), may without following the procedure laid down in Section 80 grant permits temporarily to be effective",,,,,,
for a limited period which shall not in any case exceed four months to authorize the use of a transport vehicle in the circumstances enumerated from,,,,,,
Clause (a) to (d), above, i.e. on special occasions for fair and religious gatherings, seasonal business, temporary need and pending decision on an",,,,,,
application for renewal of a permit.,,,,,,
Sub-Section (2) of Section 87 also talks about grant of temporary permit where no permit could be issued under Sections 72, 74, 76 and 79 on account",,,,,,
of some restraint order passed by a Court or other competent Authority.,,,,,,
Since in the case(s) in hand, the impugned temporary permits are purported to have been granted under the approved Scheme of 2016 for a period of",,,,,,
one year, but the same are not falling under Clauses (a) to (d) of sub-Section (1) of Section 87; nor there was any restraint order on the date of",,,,,,
granting the impugned temporary permits, therefore, the provisions of Section 87 are not attracted.",,,,,,
Perusal of sub-Section (2), Section 99 of the Act reveals that when a proposal is published under sub-Section (1), then from the date of publication of",,,,,,
proposal, no permit shall be granted to any person except a temporary permit during the pendency of such proposal and the same shall be valid only",,,,,,
for a period of one year from the date of its issuance or till the date of final publication of the Scheme under Section 100 (3), whichever is earlier.",,,,,,
Undisputedly, the approved Scheme of 2016 published under Section 100 (3) of the Act is already in existence and as on today, there is no proposal",,,,,,
pending under Section 99 (1), therefore, the provisions of Section 99 (2) are also not relevant to decide the matter in controversy.",,,,,,
Upon consideration of Section 104 of the Act, it is clearly discernible that where a Scheme has been published under Section 100 (3) in respect of any",,,,,,
notified area or notified route, the STA or RTA, as the case may be, shall not grant any permit except in accordance with the provisions of the",,,,,,
Scheme. However, proviso to Section 104 says that where no application for a permit has been made by the STU in respect of any notified area or",,,,,,
notified route in pursuance of an approved Scheme, the STA or RTA, as the case may be, may grant temporary permits to any person in respect of",,,,,,
such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the STU in respect,,,,,,
of the area or route.,,,,,,
In view of the above, it has clearly emerged that provisions of Section 104 of the Act were most relevant for consideration before granting the",,,,,,
impugned temporary permits under the Scheme of 2016, but this aspect of the matter has completely been ignored by respondent No.3.",,,,,,
12 (i) Parties are ad-idem that in view of the provisions of Section 100 (3) of the Act, the Scheme of 2016 is valid as on today.",,,,,,
The Hon’ble Supreme Court in the case of Gajraj Singh etc. vs. State Transport Appellate Tribunal, AIR 1997 SC 412, held that “it is settled",,,,,,
law that scheme approved under Chapter IVA, which is equivalent to Chapter VI of the Act, is a self-contained and self-operative scheme and is a",,,,,,
law by itself. The scheme operates to the exclusion of private operators with non-obstante clause that the STU should obtain permits to run stage,,,,,,
carriages in the notified area, routes or a portion thereof to provide coordinate efficient, adequate and economical road transport service. Thereby the",,,,,,
right to apply for and obtain a stage carriage permit has been frozen to all private operators, except as saved under the scheme itself. Until the scheme",,,,,,
gets modified or cancelled by the State it would continue to be in operation†(vide para 48).,,,,,,
12 (ii) Section 104 of the Act came up for consideration before the Hon’ble Supreme Court in case 'UP State Roadways Transport Corpn.,",,,,,,
Lucknow through its General Manager Vs. Anwar Ahmed & ors.',,,,,,
(1997) 3 SCC 191 and in para 7 thereof, it was held that:-",,,,,,
“It would, therefore, be seen that where the scheme has been published under sub-section (3) of Section 100 in respect of any notified area or",,,,,,
notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance",,,,,,
with the provisions of the scheme. Thus, the appellant-Corporation has the exclusive right or monopoly to ply their stage carriages and obtain the",,,,,,
required permit as per the scheme. The proviso gives only a limited breath of life, namely, until the Corporation puts the vehicles on the notified routes",,,,,,
as per the scheme, temporary permits may be granted to private operators. Thereby, it would be clear that temporary inconvenience to travelling",,,,,,
public is sought to be averted till the permits are taken and vehicles are,,,,,,
put on the route by the appellant. Therefore, the temporary permits will have only limited breath of life. Private operators are attempting to wear the",,,,,,
mask of inconvenience to travelling public to infigurate into forbidden notified area, route or portion thereof to sabotage the scheme. The permits were",,,,,,
taken by the appellant and the vehicles are put on the route in terms of the scheme. Therefore, the direction given by the High Court at the pain of",,,,,,
contempt is obviously illegal.â€,,,,,,
It is relevant to mention here that Section 104 (ibid) is covered under Chapter VI of the Act and in view of the mandate of Section 98, the provisions",,,,,,
of Chapter VI and rules & orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any,,,,,,
other law for the time being in force or in any instrument having effect by virtue of any such law and reference can be made to para 14 of the,,,,,,
judgment of Hon’ble Supreme Court in (1992) 2 SCC 620-Ram Krishna Verma and others Vs. State of UP and others, which reads as under:-",,,,,,
“It is true as contended by Shri Salve that in Mithilesh Garg v. Union of India, this court held that the liberal policy of grant of permits under Section",,,,,,
80 of the Act is directed to eliminate corruption and favouritism in the process of granting permits, eliminate monopoly of few persons and making",,,,,,
operation on particular route economically viable and encourage healthy competition to bring about efficiency in the trade. But the free ply is confined,,,,,,
to grant of permits under Chapter V of the Act. By operation of Section 98 of the Act, Chapter VI overrides Chapter V and other law and shall have",,,,,,
effect notwithstanding anything inconsistent therewith contained in Chapter V or any other law for the time being in force or any instrument having,,,,,,
effect by virtue of such law. The result is that even under the Act the existing scheme under the repealed Act or made under Chapter VI of the Act,,,,,,
shall have over-riding effect on Chapter V notwithstanding any right given to private operators in Chapter V of the Act. No corridor protection to,,,,,,
private operators is permissible.â€,,,,,,
Although, learned State Counsel tried to justify that powers of RTAs have been delegated to the respective Secretaries in terms of Rule 114",,,,,,
(2) of the Rules of 1993 for issuance of the permits, however, there is nothing on record to suggest that powers of STAs or RTAs, which are multi-",,,,,,
members bodies, constituted under Section 68 (2) of the Act, were ever delegated to the Secretaries for the purposes of Section 104 as well. Still",,,,,,
further, Section 104 nowhere provides that the powers of RTA can be delegated to the Secretary for grant of permits while exercising the powers by",,,,,,
way of delegation conferred under Section 68 (5), which concededly is the part of Chapter V of the Act and as a result thereof, the same cannot be",,,,,,
construed that powers of RTAs were delegated to the Secretaries, including respondent No.3, to exercise the jurisdiction under Section 104 of the Act",,,,,,
while granting the impugned permits. Be that as it may, it can be observed with certainty that the State Government was having no powers or",,,,,,
authority in law to take the purported executive decision communicated vide Memo dated 30.03.2020, thereby directing the transport authorities to",,,,,,
grant the impugned LOIs/permits.,,,,,,
Moreover, this is an admitted fact by respondent No.3 also in the reply filed on behalf of respondent Nos.1 to 3 that impugned temporary permits were",,,,,,
issued in compliance of the above Memo.,,,,,,
12 (iii) This Court has gone through the photocopy of the records produced by learned State Counsel, which clearly indicate that after passing of the",,,,,,
order dated 21.01.2020, the matter for grant of permits was submitted for consideration of the Transport Minister by the Principal Secretary, which he",,,,,,
agreed on 20.03.2020; it was approved by the Chief Minister on 27.03.2020 and ultimately, the decision has been communicated by respondent No.2",,,,,,
vide Memo dated 30.03.2020 to all concerned.,,,,,,
Perusal of the above Memo clearly reveals that all the applications were categorized by the Government under four different categories i.e. A, B-I, B-",,,,,,
II & C and all the Secretaries were intimated by respondent No.2 regarding the grant of stage carriage permits under the Scheme of 2016 while,,,,,,
directing that:-,,,,,,
“The approval of Hon’ble CM has been obtained. In compliance thereof, registration of any unregistered bus of B-I, B-II and C categories",,,,,,
shall be done by 31.03.2020. Also, the permits applied for shall be granted to these B-I, B-II and C categories expeditiously. As for category",,,,,,
‘A’, the decision of the Government shall be communicated in due course. Accordingly, the following directions are issued for grant of permits",,,,,,
to applicants falling in categories B-I, B-II and C….â€.",,,,,,
12 (iv) Although the above executive decision is not expressed to have been taken in the name of Governor as per Article 166 (1) of the Constitution,",,,,,,
but in substance, it is duly established that after receipt of complete information, the decision for grant of permits was taken by the Transport Minister,",,,,,,
which was duly approved by the Chief Minister and ultimately, conveyed the all Secretaries in the State. Thus, the Memo will amount to an executive",,,,,,
decision by the State Government, but without any legitimate source of powers at their end.",,,,,,
The law is well settled by the Constitution Bench judgment of Hon’ble Supreme Court in AIR 1964 SC 1823 (Chitralekha vs. State of Mysore),",,,,,,
that provisions of Article 166 (1) are only directory and not mandatory. Reference in this regard can be made to paras 4 & 5 of the above judgment,",,,,,,
which read as under:-,,,,,,
“4. The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of Article 166 of the Constitution. As,,,,,,
the argument turns upon the form of the said Annexure it will be convenient to read the material part thereof.,,,,,,
“Sir,",,,,,,
Sub: Award of marks for the “interview†of the candidates seeking admission to Engineering Colleges and Technical Institution.,,,,,,
With reference to your letter No. AAS. 4. ADW/63/2491, dated the 25th June 1963, on the subject mentioned above, I am directed to state that",,,,,,
Government have decided that 25% of the maximum marks......,,,,,,
Yours faithfully,",,,,,,
Sd/- S. Narasappa,",,,,,,
Under Secretary to Government,,,,,,
Education Department.â€,,,,,,
Ex facie this letter shows that it was a communication of the order issued by the Government under the signature of the Under Secretary to the,,,,,,
Government, Education Department. Under Article 166 of the Constitution all executive action of the Government of a State shall be expressed to be",,,,,,
taken in the name of the Governor, and that orders made in the name of the Governor shall be authenticated in such manner as may be specified in",,,,,,
rules to be made by the Governor and the validity of an order which is so authenticated shall not be called in question on the ground that it is not an,,,,,,
order made by the Governor.,,,,,,
If the conditions laid down in this Article are complied with, the order cannot be called in question on the ground that it is not an order made by the",,,,,,
Governor. It is contended that as the order in question was not issued in the name of the Governor the order was void and no interviews could be held,,,,,,
pursuant to that order. The law on the subject is well settled. In Dattatraya Moreshwar Pangurkar v. State of Bombay, 1952 SCR 612 at p. 625: (AIR",,,,,,
1952 SC 181 at pp. 185-186). Das, J., as he then was, observed:",,,,,,
“Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an,,,,,,
order made by the Governor. If, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the",,,,,,
State.,,,,,,
This, however, does not vitiate the order itself...................................",,,,,,
Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those,,,,,,
provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate",,,,,,
Government must take a decision as to whether the detention order should be confirmed or not under section 11(1).â€,,,,,,
The same view was reiterated by this Court in State of Bombay v. Purushottam Jog Naik, 1952 SCR 674: (AIR 1952 SC 317) where it was pointed",,,,,,
out that though the order in question there was defective in form it was open to the State Government to prove by other means that such an order had,,,,,,
been validly made. This view has been reaffirmed by this Court in subsequent decisions: see Ghaio Mall and Sons v. State of Delhi, 1959 SCR 1424:",,,,,,
(AIR 1959 SC 65) and it is, therefore, settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character",,,,,,
and, if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or",,,,,,
the Governor. The judgment of this Court in Bachhittar Singh v. State of Punjab (1962) Supp 3 SCR 713: (AIR 1963 SC 395) does not help the,,,,,,
appellants, for in that case the order signed by the Revenue Minister was not communicated to the party and, therefore, it was held that there was no",,,,,,
effective order.,,,,,,
(5) In the light of the aforesaid decisions, let us look at the facts of this case. Though Annexure IV does not conform to the provisions of Article 166",,,,,,
of the Constitution, it ex facie says that an order to the effect mentioned therein was issued by the Government and it is not denied that it was",,,,,,
communicated to the selection committee. In neither of the affidavits filed by the appellants there was any specific averment that no such order was,,,,,,
issued by the Government. In the counter affidavit filed by B.R. Verma, Deputy Secretary to the Government of Mysore, Education Department,",,,,,,
there is a clear averment that the Government gave the direction contained in Annexure IV and a similar letter was issued to the Selection Committee,,,,,,
for admission to Medical Colleges and this averment was not denied by the appellants by filing any affidavit. In the circumstances when there are no,,,,,,
allegations at all in the affidavit that the order was not made by the Government, we have no reason to reject the averment made by the Deputy",,,,,,
Secretary to the Government that the order was issued by the Government. There are no merits in this contention.â€,,,,,,
12 (v) Also necessary to observe here that official respondents are not disputing the decision taken by the State Government vide Memo, referred",,,,,,
above; rather in their reply to para Nos.21 & 22, specifically stated that “permits have been granted to respondents No.4 to 22 as per rules and in",,,,,,
compliance of the orders of the Hon’ble Supreme Court and directions issued by the respondent No.1 in memo dated 30.03.2020â€.,,,,,,
(emphasis supplied),,,,,,
In view of the above, there remains no doubt that issuance of Memo dated 30.03.2020 would be the purported executive decision of the Government,",,,,,,
but at the same time, it is observed that neither under the Act; nor as per Rules of 1993 or in terms of Scheme of 2016, the Government was",,,,,,
empowered or authorized to take such a decision, thereby directing the transport authorities to grant the impugned LOIs/permits.",,,,,,
This Court has also perused the Rules of Business of the Government of Haryana, 1977 as well as the Business of the Haryana Government",,,,,,
(Allocation) Rules, 1974 (for short 'Business Rules and Allocation Rules', respectively), but neither under the Business Rules; nor under the Allocation",,,,,,
Rules, Transport Minister or Chief Minister are having any power or authority to intervene in the working of transport authorities in such a manner.",,,,,,
12 (vi) The State Government under the garb of above Memo virtually assumed the power of superior authority over the transport authorities and as,,,,,,
such, negated the entire concept of adjudication by quasi judicial bodies in such like matters. All the Secretaries including respondent No.3 were",,,,,,
directed that permits be issued to Category B-I, B-II & C despite the fact that the State Government was not competent to issue such a mandate for",,,,,,
grant of impugned permits. If the course as suggested by the Government is allowed to prevail, then the whole purpose of establishing the transport",,,,,,
authorities would be frustrated and that would amount to complete negation of the rule of law.,,,,,,
12 (vii) Under the Act, the provisions have been made to constitute the transport authorities as well as for exercise of powers (administrative or quasi",,,,,,
judicial) as the case may be. These authorities are free to decide the matter for grant of permits in accordance with law, but the Government decision",,,,,,
has interfered in their jurisdiction and vitiated the entire exercise for grant of impugned permits. There remains no doubt that the impugned offer of,,,,,,
allotments/ LOIs and permits were issued in compliance of Government decision and as such, the extraneous pressure was created in the mind of",,,,,,
Respondent
No.","Date of
Application","Date of
Demand
Draft","Date of
issuance of
permit",,,
4.,18.03.2020,17.03.2020,13.04.2020,,,
5.,18.03.2020,09.03.2020,10.04.2020,,,
6.,31.03.2020,12.03.2020,10.04.2020,,,
7.,18.03.2020,09.03.2020,10.04.2020,,,
8.,18.03.2020,17.03.2020,10.04.2020,,,
9.,29.01.2020,29.01.2020,10.04.2020,,,
10.,18.03.2020,09.03.2020,10.04.2020,,,
11.,20.03.2020,20.03.2020,10.04.2020,,,
12.,18.03.2020,09.03.2020,10.04.2020,,,
13.,18.03.2020,09.02.2020,10.04.2020,,,
14.,18.03.2020,11.03.2020,10.04.2020,,,
15.,18.03.2020,17.03.2020,29.04.2020,,,
16.,31.03.2020,07.02.2020,10.04.2020,,,
17.,18.03.2020,09.03.2020,10.04.2020,,,
18.,18.03.2020,17.03.2020,10.04.2020,,,
19.,01.04.2020,17.03.2020,24.04.2020,,,
20.,18.03.2020,09.03.2020,10.04.2020,,,
21.,20.03.2020,20.03.2020,10.04.2020,,,
13 (i) Grant of permits by the transport authorities under the approved Scheme is not to be taken as a matter of course; rather it would require due,,,,,,
consideration of an individual application in accordance with law and for that purpose, each case is to be examined carefully. However, in the case(s)",,,,,,
in hand, despite repeated asking by the petitioners, no order has been supplied by respondent No.3 regarding the grant of impugned permits; rather it",,,,,,
simply acted in terms of the directions of the State Government and issued the tailor made permits. Since there is neither any order passed by,,,,,,
respondent No.3 while considering the applications of private respondents; nor any reasons has been assigned except following the mandate of the,,,,,,
State Government to issue permits to three categories i.e. B-I, B-II & C under which all the private respondents are covered. Still further, there is no",,,,,,
consideration of the claim of the private respondents in terms of proviso to Section 104 of the Act read with Scheme of 2016, therefore, plea of the",,,,,,
equality clause under Article 14 of the Constitution raised in support of the private respondents is totally misplaced.,,,,,,
13 (ii) As a matter of proprietary, respondent No.3 ought to have considered the claim of the private respondents for grant of permits on the basis of",,,,,,
respective merits, but it simply followed the Government directions, thus, performed the ministerial act for issuance of the impugned permits, hence the",,,,,,
same are without jurisdiction. As a result thereof, it is clearly established that respondent No.3 instead of following the order of the Hon’ble",,,,,,
Supreme Court preferred to embrace the Memo dated 30.03.2020. 13 (iii) That in para 21 of the writ petition, it is specifically averred by the",,,,,,
petitioners that despite repeated asking from the office of respondent No.3, no copy of the order has been supplied till date; rather verbally told that no",,,,,,
order was passed. Even information was sought under the Right to Information Act, 2005, (for short ‘RTI Act’), but despite that, no copy of",,,,,,
order has been supplied to the petitioners. Even the averments, made in para 21 of the petition, are also not denied by the respondents.",,,,,,
Para 21 of the writ petition along with its reply, being relevant, are extracted as under:-",,,,,,
“21. That as stated hereinabove, the petitioners have repeatedly been approaching the office of respondent No.3 for supplying the copies of the",,,,,,
permits granted in favour of respondent No.4 to 21 and for the supply of certified copy of any order passed while issuing the said permits. However,",,,,,,
the office of respondent No.3 has failed to provide the same and had verbally communicated that no order has been passed while issuing the permits,",,,,,,
other than the offers of allotment dated 08.04.2020 and thus petitioner No.2 was constrained to submit an application dated 02.06.2020 under the Right,,,,,,
to Information Act for the supply of the copies of permits, applications, demand drafts and the orders passed while issuing the permits in favour of",,,,,,
respondents 4 to 21, on the routes in question. True copy of the RTI application dated 02.06.2020 along with its English translation and the postal",,,,,,
receipt dated 02.06.2020, are appended herewith as Annexures P-53 & P-54, respectively.",,,,,,
Reply by official respondents:,,,,,,
That in reply to para No.21 of the writ petition, it is submitted that permits have been granted to the respondents No.4 to 22 as per rules and in",,,,,,
compliance of the orders of the Hon’ble Supreme Court and directions issued by the respondent No.1 in memo dated 30.03.2020.,,,,,,
Reply of private respondents:,,,,,,
That the contents of para No.21 of the writ petition are not relates to the answering respondents and hence need no reply.â€,,,,,,
Perusal of para 21 of writ petition and its reply make it apparently clear that no order at all was passed by respondent No.3 while granting the,,,,,,
impugned permits, therefore, actions of the official respondents are totally illegal, arbitrary and unconstitutional.",,,,,,
As a result thereof, there is no doubt while observing that petitioners have the cause of action as well as locus standi for protection of their lawful",,,,,,
rights by way of the present writ petition(s).,,,,,,
13 (iv) Also noteworthy that as per averments made in para No.14 of the writ petition, attempts were made by the petitioners to file objections against",,,,,,
the grant of impugned permits, but due to COVID-19, they were not able to get the receipt in this regard; however, a true copy of one such",,,,,,
representation dated 20.02.2020 made by Ramesh Kumar (petitioner in CWP No.7420 of 2020) has been attached as P-10. Para 14 of the writ,,,,,,
petition as well as its reply being relevant are extracted as under:-,,,,,,
“14. That when the petitioners came to know that certain applications have been entertained by the office of respondent No.3 even beyond the,,,,,,
period permitted by the Hon’ble Supreme Court of India, they made several attempts to file objections against the grant of permits on the basis of",,,,,,
such illegal applications. However, due to the unprecedented situation arising out of the Covid-19 situation, they were unable to get the same diarized",,,,,,
in the office of Respondent no.3. A true copy of one of the representation dated 20.02.2020, submitted in the office of respondent no.2, by a similarly",,,,,,
situated operator, is attached herewith as Annexure",,,,,,
P/10.â€,,,,,,
Para 14 of the reply of official respondents:-,,,,,,
“14. That in reply to para no.14 of the writ petition, it is submitted that permits have been rightly granted to the respondents no.4 to 22, and any",,,,,,
objections raised by the petitioner is totally meritless.â€,,,,,,
Para 14 of the reply by private respondents:-,,,,,,
“14. That the contents of para no.14 of the writ petition are wrong and hence denied. The permits have been granted to the answering respondents,,,,,,
in accordance with the order passed by the Hon’ble Apex Court. As far as the contents with regard to the representation is matter of record and,,,,,,
need no reply. That the letter dated 20.03.2020 (Annexure P-11) is rightly issued by the authority after considering the matter in view of the order of,,,,,,
the Hon’ble Supreme Court.â€,,,,,,
Perusal of replies of respondents clearly reveal that there is no denial to the factum of representation dated 20.02.2020 (P-10) while raising the,,,,,,
objections against the grant of impugned permits. Still further, para No.3 of the above said representation is also important as it talks about the number",,,,,,
of permits already granted in favour of Haryana Roadways (STU) and other operators on the routes in question in the following manner:-,,,,,,
“The undersigned has now come to know that the authority is now considering 32 applications on the route in question for the grant of stage,,,,,,
carriage permits under the 2016 scheme and would like to humbly point out that no permits should be granted without first conducting a,,,,,,
survey/assessment of the requirement of stage carriage services on the route in question, the number of existing services already plying on the route,",,,,,,
the availability of road infrastructure and parking areas, Traffic congestion, likelihood of violation of provisions of the Act including speed limits, the",,,,,,
possibility of unhealthy competition between operators etc. Besides the fact that it is necessary to fix the number of minimum and maximum trips to be,,,,,,
operated on a notified route under the Scheme, the Hon’ble",,,,,,
Petitioner
No(s).","Route
No.","From To
via","Over-
lapped
by
Respon-
dent
No(s).","Date of
permit","From
To",Category
1.,145,"(Karnal to
Assandh via
Chirao
Mor,
Jundla,
Jalmana)","5
6
7
8
9
10","13.04.2020
10.04.2020
10.04.2020
10.04.2020
10.04.2020
10.04.2020","(Karnal to
Assandh via
Chirao Mor,
Jundla,
Jalmana)","C
B1
B1
B1
B1
C
2.,152,"(Indri to
Pehowa via
Bhadson,
Pipli,
Kurukshetra
, Jyotisar).","21
22","10.04.2020
10.04.2020","(Indri to
Pehowa via
Bhadson,
Pipli,
Kurukshetra,
Jyotisar).","C
B1
3.,146,"(Karnal to
Pundri via
Manjura,
Nissing,
Rasina).","14
15
16
17
18","10.04.2020
10.04.2020
29.04.2020
10.04.2020
10.04.2020","(Karnal to
Pundri via
Manjura,
Nissing,
Rasina).","B1
C
C
C
B1
,,"Kachhwa,
Sitamai,
Kaul.",13,10.04.2020,"Kachhwa,
Sitamai,
Kaul.",C
5.,140,"Karnal to
Radaur via
Samora,
Indri,
Ladwa)","4
5
11","29.04.2020
13.04.2020
15.04.2020","Karnal to
Radaur via
Samora,
Indri,
Ladwa)","C
C
C
6.,150,"(Assandh to
Panipat via
Salwan,
Ballah,
Munakpul,
Kohand)",20,24.04.2020,"(Assandh to
Panipat via
Salwan,
Ballah,
Munakpul,
Kohand)",C
7.,148,"(Karnal to
Shahabad
via
Nilokheri,
Pipli.","19
10","10.04.2020
15.04.2020","(Karnal to
Shahabad via
Nilokheri,
Pipli.","C
B1
Sr.
No.","Date of
Scheme",Challenged in,Decision,,,
1.,"rd
3 November,
1993","CWP No. 6163 of 2004(Shiv
Cooperative Transport
Society Limited Gheer vs.
The State Trasnport
Controller Haryana and
others) and other connected
matter","Allowed and
clause 2 on
scheme was struck
down by Division
Bench on
11.01.2005.",,,
2.,"18
thJune,
1998
(Rescinded by
state
government on
25
thFebruary,
2000)",,,,,
,Schemeâ€,Haryana and others),,,,
,,"LPA No. 93 of 2009 titled as
Sadhu Ram through Rajesh
Kumar vs State of Haryana
and others","th
Dismissed on 10
February, 2010",,,
,,"SLP (Civil) No. 23590 of
2010","Dismissed on
09.08.2010.",,,
4.,"2003 Scheme.
(Withdrawn by
State
Government)",,,,,
basis thereof, challenge was made against the impugned permits;",,,,,,
(iii) petitioners have duly explained in the writ petition(s) regarding the non-impleadment of other permit holders and that is found to be quite,,,,,,
satisfactory.,,,,,,
13 (xii) The plea raised on behalf of the private respondents regarding the literal interpretation of word ‘dispensation’ will not serve any purpose,,,,,,
for the simple reason that there is no material on record to indicate that private respondents were granted permits on the basis of their applications,",,,,,,
submitted under the Draft Scheme of 2017; rather it is duly established that all the impugned permits were granted on the basis of applications, which",,,,,,
were submitted subsequent to the cut-off date i.e. 28.01.2020. Moreover, all dispensation afforded under the Draft Scheme of 2017 have been",,,,,,
withdrawn and that will include the Circular dated 07.02.2018 as well and that was the only basis for grant of temporary permits under that Scheme.,,,,,,
Therefore, once the Scheme as well as Circular dated 07.02.2018 have been withdrawn, then there is no reason to accept that the applications",,,,,,
submitted under that Scheme are still valid in law. Consequently, the above plea of the private respondents is also rejected.",,,,,,
CONCLUSIONS:,,,,,,
In view of the facts and circumstances, discussed hereinabove, the irresistible conclusions are as under:-",,,,,,
i) The State Government was not legally empowered to take the executive decision communicated by respondent No.2 vide Memo dated 30.03.2020,",,,,,,
thus, their actions are found to be without legitimate authority;",,,,,,
ii) As on today, Scheme of 2016 is valid in law; all the petitioners were granted stage carriage permits under this very Scheme on the routes in",,,,,,
question for a period of five years i.e. up to March, 2022; plying their buses and paying the requisite taxes to the Government. On the other hand,",,,,,,
private respondents have been granted the impugned temporary permits on these very routes in breach of the provisions of the Act including proviso to,,,,,,
Section 104 as well as the approved Scheme of 2016;,,,,,,
iii) The private respondents were granted the impugned temporary permits on the basis of applications submitted between the period 29.01.2020 to,,,,,,
31.03.2020 and as such, the same were not submitted within the deadline fixed by Hon’ble Supreme Court. There is no material available on",,,,,,
record either by way of an order or otherwise except tabulation (R-1) that the impugned permits were granted on the basis of pending applications of,,,,,,
the private respondents made prior to 28.01.2020;,,,,,,
iv) The respondent No.3 issued the impugned permits merely in compliance of the Government decision, but without application of mind or in",,,,,,
accordance with law, thus, violated the order dated 21.01.2020, passed by the Hon'ble Supreme Court;",,,,,,
v) Despite repeated asking by the petitioners, respondent No.3 did not produce even a single copy of order showing that applications of the private",,,,,,
respondents were considered at all much less in accordance with law while granting the impugned permits, thus, the entire exercise to that effect is",,,,,,
vitiated being without jurisdiction;,,,,,,
vi) The State Government while directing the Secretaries including the respondent No.3 has interfered in the independent functioning of the transport,,,,,,
authorities, thus, the process for grant of the impugned permits has been influenced, resulting into the complete negation of the rule of law;",,,,,,
vii) The petitioners have already been granted the permits to ply their buses on the routes in question; but the private respondents invaded their lawful,,,,,,
rights under the garb of the impugned permits, which are found to be legally unsustainable and as a result thereof, the rights of the petitioners flowing",,,,,,
from Article 19(1)(g) of the Constitution have been infringed;,,,,,,
viii) The petitioners while approaching this Court have shown not only sufficient, but genuine interest in the subject matter under challenge for the",,,,,,
purpose of locus standi and as such, they have rightly invoked the jurisdiction of this Court under Article 226 of the Constitution;",,,,,,
ix) That all actions of the official respondents are found to be in violation of order of the Hon’ble Supreme Court while not proceeding in,,,,,,
accordance with law.,,,,,,
In view of the discussions, made hereinabove, this Court has no option except to allow the present writ petitions.",,,,,,
Consequently, the writ petitions are allowed; the Government decision communicated by respondent No.2 vide Memo dated 30.03.2020 as well as all",,,,,,
the impugned offer letters/ LOIs along with temporary permits granted/issued in favour of the private respondents are quashed and set aside.,,,,,,
Photocopies of the records be returned back to learned State counsel forthwith.,,,,,,