TaxTMI 
TaxTMI 
2010 (4) TMI 1188
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....ransport Authorities of Jalandhar, Patiala and Ferozpur. The order of the Commissioner was confirmed by the State Transport Appellate Tribunal (in short "the Tribunal") vide its order dated 27.4.2005, but interfered with by the High Court in C.W.P No.8483/2005 and C.W.P. No.11768 of 2005 respectively with a positive direction to the Commissioner to grant Stage Carriage Permits to the private operators rejecting the claims of the State Transport Undertakings (STUs). The legality of the order of the High Court is under challenge in these two cases filed by the State of Punjab through the Commissioner and the Punjab Roadways, Moga, represented by its General Manager. 3. The Secretary, Regional Transport Authority, Jalandhar, published a notice in the Motor Transport Gazette, Weekly, Chandigarh in its issue dated 22.2.1999 inviting applications for the grant of four Stage Carriage Permits for plying two return trips daily in the Pathankot - Faridkot via Mukkerian, Dasuya, Jalandhar Nakodar, Moga, Talwandi Bhai, Mudki route a substantial portion of which falls within the National and State Highways. As per the scheme published on 9th August, 1990 (in short the `1990 Scheme') modifi....
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....e `Act') challenging the grant of permits to the private operators and the STUs. Before the Tribunal, it was represented that STUs though granted the permits, were not operating the services and, therefore, those permits be granted to the appellants so that public would not be put to inconvenience. On their request, reports were called for from the Regional Transport Authority (in short the `RTA') to ascertain as to whether the STUs were in fact operating services. The Secretary, RTA, Jalandhar vide his reports dated 5.4.2005 and 20.4.2005 reported that the permit granted to Pepsu Transport Corporation was surrendered by it on 1.6.2002 and that the Punjab Roadways had so far not utilized the permit. The Tribunal considered the comparative merits of the applicants and found no illegality in the order granting the permits to the private operators and found no reason to disturb the grant of permits to STUs. Appeal No.223/2007 was also rejected on the ground of delay so also on the ground that applicant cannot be treated as a new entrant since its sister concern was already granted permit. All the three appeals were therefore rejected by the Tribunal vide its order dated 27.4.2....
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....lenging the orders passed by the Tribunal on 28.10.2005, 17.12.2004, 25.8.2005, 3.10.2005 and 1.8.2005 directing grant of permits to private operators in various notified routes on the ground that Punjab Roadways was not operating services inspite of grant of permits. In these appeals, the Punjab Roadways has contended that the Tribunal as well as the High Court has erred in granting regular permits to ....9/- the private sector over-looking the claims of STUs in gross violation of 1990 scheme as modified in the year 1997 and the provisions of Chapter VI of the Act. 14. The learned counsel for the appellants submitted that the High Court was not justified in directing the Commissioner to grant permits to the private operators on the ground that the STUs had either not utilized the permits, surrendered the permits or not applied for the permits. Learned counsel submitted that substantial portions of the notified route fall under the National/State Highways and as per the provisions of the 1990 scheme as amended in the year 1997 the mileage of different types of routes in the State of Punjab has to be shared by the STUs along with private operators in the prescribed ratio mentioned ....
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.... to Mahilpur is also not a monopoly route and is not a part of the list annexed with the 1990 scheme. Various other infirmities have also been pointed out. 16. The first question for our consideration is whether the Tribunal and the High Court are justified in directing the Commissioner exercising the powers of RTAs to grant regular permits to the private operators on the ground that the STUs had either failed to utilize the permits granted or surrendered the permits or had not applied for the permits in the notified routes. In order to examine that question it is necessary to refer to the 1990 Scheme as amended in the year 1997. 17. The Government of Punjab, in exercise of the powers conferred under Section 100 of the Act, formulated a scheme so as to provide an efficient, adequate, economical and properly co-coordinated road transport service in the State of Punjab. Notification to that effect was published in Punjab Government Gazette (Extra Ordinary ) dated 9th August, 1990 stipulating areas and routes to be operated by the STUs to the complete or partial exclusion of other persons. Clause 5, 6 and 7 of the Scheme are relevant for our purpose and hence extracted hereunder :- ....
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.... a notification to that effect was published in the Punjab Government Gazette (Extraordinary) dated 21.10.1997. Clause 5 of the 1990 Scheme was amended and the ratio 30:30 was substituted by 75:25 and the ratio 50:50 mentioned in Clauses 6 and 7 was substituted by 50:50 are 40:60 respectively as per the amended scheme dated 21.10.1997. The Tribunal in its orders dated 27.04.2005 as well as on 28.10.2005 has stated that the routes for which applications were preferred by the STUs for the grant of permits were notified routes under the Scheme. All the parties had proceeded as if the routes in question were included in the 1990 Scheme. Before the Tribunal it was represented by the private operators that though the Pepsu Transport Corporation was granted a Stage Carriage Permit on the route notified, the same was surrendered by the Corporation on 1.6.2002 and the Punjab Roadways though was granted permit had failed to utilize the permit. Few other instances were also pointed out where inspite of grant of permits the STUs had either surrendered the permits or were not operating the permits on the routes notified. A copy of such an order dated 19.7.2007 passed by the Secretary RTA, ullan....
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....especting thereof and the Government is also empowered to publish such a proposal in the gazette in public interest. After calling for objections to the proposed scheme, and examining the same the scheme has to be published in accordance with the provisions of Section 100 of the Act. The scheme once published is law and chapter VI has an overriding effect on Chapter V of the Act and it operates against everyone unless it is modified or cancelled by the State Government. 22. The scheme also provides for a ratio with regard to the grant of permits on the notified routes between STUs and private operators which is fixed based on the assessment made by the State Transport Commissioner, Punjab on the basis of the passenger road transport needs which is legally binding on all. The provisions of the scheme including the list of routes mentioned in the various annexures, and the ratio fixed are statutory in character which cannot be tinkered with by the RTAs and have overriding effect over the powers of RTAs under Chapter V of the Act. The power to cancel the Scheme or modify the Scheme rests with the State Government under Section 102 of the Act and the RTA and the Tribunal have committe....
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....route. 25. The above mentioned provision states where a scheme has been published under Sub-section 3 of Section 100 in respect of any notified area or notified route, STA or the RTA as the case may be shall not grant any permit except in accordance with the provisions of the Scheme. An exception has been carved out in the proviso to Section 104 stating, where no application for 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 the RTA, as the case may be, may grant temporary permits to any person in respect of any such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of permit to the STU in respect of that area or route. In our view same is the situation in respect of a case where an STU inspite of grant of permit does not operate the service or surrenders the permit granted or not utilizing the permit. In such a situation it should be deemed that no application for permit has been made by the STU and it is open to the RTA to grant temporary permit if there is a temporary need. By granting regular permits to the private operators RTA wil....