Ziaul Islam v. State Of U.P.

Mahesh Chandra Tripathi, J. - Heard Shri L.P. Naithani, learned Senior Counsel assisted by Shri H.P. Dube, learned counsel for the petitioners; Shri Pankaj Rai, learned Addl. Chief Standing Counsel along with Shri Sanjay Kumar Singh, learned Standing Counsel for the State respondents; Shri Shashi Nandan, learned Senior Counsel assisted by Shri G.K. Malviya, learned counsel for eighth and ninth respondent; Shri Vikas Chandra Tripathi, learned counsel for fifth respondent and Shri Vivek Saran, learned counsel for sixth respondent.

2. Present writ petition has been filed against the order dated 13.1.2017 passed by the State Transport Appellate Tribunal, U.P., Lucknow (in short "the STAT")-second respondent in Appeal No. 78 of 2011 (Haji Rasheed Ahmad v. S.T.A. U.P. & Anr.) and Appeal No. 82 of 2011 (Zafar Ullah Khan v. S.T.A. U.P.) by which the STAT had accorded permits to the eighth and ninth respondent to ply their buses on the route namely "Mahoba-Chhatarpur via Malehra".

3. On the matter being taken up on 10.05.2017, an interim order was passed in favour of the petitioners with following effect:-

"........Till the next date of listing, the operation and effect of the order dated 13.1.2017 passed by the State Transport Appellate Tribunal, Lucknow in Appeal No. 78 of 2011 (Haji Rasheed Ahmad v. S.T.A. U.P. and another) and Appeal No. 82 of 2011 (Zafar Ullah Khan v. S.T.A. U.P.) shall remain stayed and the respondents no. 8 and 9 are restrained from operating their vehicles on the route Mahoba-Chhatarpur via Malehra."

4. The aforementioned interim order was subjected to challenge before Hon''''ble the Apex Court in Special Leave to Appeal (c) No(s). 15790 of 2017 (Haji Rasheed Ahmad & Anr. v. The State of U.P. & Ors.) and the same was disposed of on 27.6.2017 with following observations:-

"The impugned order being interim in nature, we are not inclined to interfere. We are informed that the writ petition out of which this special leave petition arises, itself is fixed for final disposal before the concerned bench on 26.07.2017. If that be so, we request the High Court to decide the writ petition on the said date or as early as possible on merits, uninfluenced by any one of the observations made in the interim order because they were only made for the purpose of issuing notice and not beyond that.

With these observations, we dispose of this special leave petition."

Thereafter, the matter was listed on 26.7.2017 and the Court has proceeded to pass the following order:-

"The Application moved by Shri G.K. Malviya, Advocate is taken on record.

Heard Shri L.P. Naithani, Senior Advocate assisted by Shri H.P. Dube, learned counsel for the petitioners; Shri Shashi Nandan, Senior Advocate assisted by Shri G.K. Malviya, learned counsel for the respondent and learned Standing Counsel for the State respondents.

On the matter being taken up today, the order dated 06.07.2017 passed in the Special Leave to Appeal No. 38259 of 2012 (Ziyaul Islam and another v. State of U.P. and another) has been produced before this Court wherein the date fixed by the Apex Court is 09.08.2017 and as such parties to the dispute has jointly requested that the present matter may be fixed thereafter.

On the joint request, put up this matter in Computer List on 16.08.2017.

In the meantime office is directed to submit a fresh report regarding service to other respondents.

Interim order, if any, is extended till the next date of listing."

5. Thereafter, the matter was listed on 16.08.2017 and 31.08.2017. Finally the matter was heard on 04.09.2017 and on the basis of observation made by Hon''''ble Apex Court the Court has proceeded to decide the case on the merits of the issue.

6. The factual matrix given rise to the present writ petition, which is reflected from the record, is that there is a route (51 kilo-meters) known as "Mahoba-Chhatarpur via Malehra" (in short "the route in question"), which is an Inter-State Route partly lying within the territorial jurisdiction of the State of U.P. (22 kilometers) and partly within the territorial jurisdiction of the State of M.P (29 kilometers). The route in question is overlapped by other Inter-State Routes also namely:-(i) Mahoba-Fwalior via Malehrhhatarpur; (ii) Charkhari-Chhatarpur via Supa-Srinagar and (iii) Mahoba-Sagar via Chhatarpur. The operation of a transport vehicle on a public road is regulated under the provisions of the relevant Statutes enacted/framed by the Parliament as well as the concerned States. It is stated that prior to advent of the Motor Vehicles Act, 1988 (in short "the Act of 1988"), the Motor Vehicles Act, 1939 (in short "the Act of 1939") was in vogue and the grant and issue of permits to the operators for plying the vehicles at the strength thereof were regulated under the provisions of the Act of 1939 and the Rules framed thereunder either by the Central Government or by the concerned State Governments.

7. It is contended that as per the provisions contained in Section 63-A of the Act of 1939, grant and issue of permits and operation of vehicles on Inter-State Routes was to be governed under the provisions of the reciprocal agreement arrived at between the concerned States in whose territorial jurisdiction such an Inter-State Route fell. In the present matter, in view of the mandatory provisions as contained in Section 63-A of the Act of 1939, the reciprocal agreement between the State of U.P. and the State of M.P. was arrived at in the year 1963, which was revised by both the States from time to time. A final reciprocal agreement dated 15.09.1980 was published in the official gazette of both the States and the route in question was shown at Sl. No. 5 in the said reciprocal agreement. In view of the said reciprocal agreement, 6 Stage Carriage Permits were to be granted by the State Transport Authority (STA) U.P. Lucknow for performing 12 single trips, whereas 7 Regular Stage Carriage Permits were to be granted by the State Transport Authority, M.P. for performing 14 single trips. The petitioners claim that they jointly hold Regular Stage Carriage Permit for the route in question and the same was renewed from time to time by both the States.

8. An approved scheme was published by the State of M.P. as per the provisions contained under Section 68-D (3) of the Act of 1939 in the official gazette on 4.4.1985 nationalizing certain routes, which were part of the reciprocal agreement dated 15.09.1980 including the present route in question of the petitioners. It is stated that the scheme numbers 30, 67 and 68 are relevant for the purposes of the present controversy inasmuch as these schemes cover the route of the petitioners. However, the Scheme No. 67 entirely covers the route in question, which was published on 4.4.1985.

9. The Act of 1939 was repealed by the Parliament by enacting the Act of 1988, which was enforced w.e.f. 1.7.1989. There is drastic change made in the Act of 1988 with respect to grant and issue of permits for operating public service vehicles. As the earlier reciprocal agreement published on 15.9.1980 with respect to Inter-State Routes lying with the State of U.P. and the State of M.P. had outlived their significance and utility, looking into the increase of population and therefore, both the State Governments had published a proposal of a fresh/revised reciprocal agreement on 2.4.1992 on the basis of provisions contained under Section 88 (5) of the Act of 1988 and the objections were invited from the persons likely to the affected. Finally the reciprocal agreement dated 27.5.1994 was published by both the States in the official gazettes.

10. In this backdrop, it is claimed that in the proposal dated 2.4.1992 only the trips were sought to be increased but in the final notification containing the reciprocal agreement, number of permits were also increased, which led the bone of contention between the parties. Aggrieved with the same, a number of writ petitions were filed by the existing operators of the Inter-State routes in this High Court challenging the said reciprocal agreement dated 27.5.1994 as published on 1.6.1994. The petitioners had also assailed the agreement dated 27.5.1994 on the ground that in view of the Scheme No. 67 dated 4.4.1985 and other schemes, number of permits could not be increased, unless and until the scheme of nationalization is modified by the concerned State Government in view of the provisions contained under Section 102 of the Act of 1988. After hearing the matters at length, the High Court had granted interim orders staying the effect and operation of the said reciprocal agreement dated 27.5.1994. It has also been claimed that the State of M.P. issued a clarificatory notification dated 6.3.1997 in exercise of the powers under Section 102 of the Act of 1988 specifically providing that the existing operators operating their vehicles on such Inter-State Routes covered under the Scheme No. 67 dated 4.4.1985 prior to 4.7.1996 shall continue to operate their vehicles even after publication of the said scheme and consequently the permit of the petitioners stood saved under the Scheme No. 67 dated 4.4.1985.

11. The main plank of arguments advanced by Shri L.P. Naithani, learned Senior Counsel is that in view of the factual position as enumerated above, the existing operators of Inter-State Route plying their vehicles prior to 4.7.1996 were saved even though the route in question become nationalised and consequently no permit could be accorded to any private operator in route inspite of the fact that number of permits were increased in the reciprocal agreement. It is stated that the aforesaid reciprocal agreement dated 27.5.1994 was subjected to challenge in Writ Petition No. 24324 of 1994 and vide judgment and order dated 27.7.2005 the Court had quashed the reciprocal agreement dated 27.5.1994 with respect to Inter-State routes lying between both the States and directed that looking into the increase in population, Government of both the States may enter into a fresh reciprocal agreement so as to subserve the need of the travelling public of both the States. Consequently, both the States have mooted a fresh proposal and entered into an agreement and the same was published in official gazette of both the States on 21.11.2006, whereby number of permits as well as number of trips both were increased. Meanwhile on 15.05.2008 the State Government of Madhya Pradesh had rescinded scheme no. 67 of 1985. Consequently, certain private operators made applications for grant of permits. Those applications were rejected by the State Transport Authority by order dated 17.03.2011, the appeals giving rise to the present proceeding, were filed against that order.

12. It is at that stage the petitioners claim to have filed writ petition no. 34467 of 2012 before this Court for the following relief:-

"i. Issue a writ, order or direction in the nature of mandamus directing the State Transport Authority, U.P. not to countersign any permit granted on Mahoba-Chhatarpur via Malehra by State Transport Authority, M.P. In pursuance of reciprocal agreement dated 21.11.2006 or under any other reciprocal agreement executed therefor.

ii. Issue a writ, order or direction in the nature of mandamus directing the State Transport Authority M.P. Not to grant any permit on the petitioner''''s route ''''Mahoba-Chhatarpur via Malehra'''' or on any portion thereof;"

13. In the aforesaid writ petition it appears that four persons filed impleadment applications and claimed that pursuant to de-notification of the scheme no. 67 of 1985 by the Government of Madhya Pradesh, they had obtained permits which had been signed and counter signed by the Government of Madhya Pradesh and Government of Uttar Pradesh, therefore, the writ petition has become infructuous. Apparently, the applications for grant of permit (as filed by respondent nos. 8 and 9) had been allowed.

14. By order dated 19.07.2012 the Division Bench of this Court allowed the aforesaid impleadment application, called for affidavits and thereafter provided:-

"However, in the mean time, status-quo with regard to plying of the buses will be continued till further order/s to be passed by this Court."

15. Later, the Division Bench of this Court dismissed the aforesaid writ petition on 29.11.2012 rejecting the submissions of the petitioners that prior approval of the Central Government was necessary to rescind the scheme and that the decision made by the Government of Madhya Pradesh without such approval was bad.

16. Against the aforesaid judgment of this Court, the petitioners approached the Supreme Court through Special Leave to Appeal (Civil) no. 38259 of 2012. The Supreme Court while entertaining the above leave to appeal issued notices to the respondents and granted interim protection vide its order dated 14.12.2012 as quoted below :-

"Let notice be issued to other respondents.

The order of status quo with regard to plying of buses as granted by the High Court on 19.7.2012 shall continue until further orders."

17. Thereafter, it appears that certain other persons who claimed to have been granted permits subsequent to the judgment of this Court dated 29.11.2012 but before the interim order granted by the Supreme Court on 14.12.2012, applied to the Supreme Court, through an impleadment application and prayed for interim protection. On that application, the Supreme Court by its order dated 16.04.2013 provided as under:-

"as an interim measure we direct the official respondents to allow the applicants herein in this application to ply their vehicles on the respective routs on which they had been granted permits/executed trips by the competent authority and duly counter-signed by the State Transport Authority Lucknow, U.P."

18. The aforesaid protection was granted by the Supreme Court in view of public interest as noted in that order.

19. To complete the facts it is also relevant to note that the act of rescinding the scheme no. 67 of 1985 had been made by the Government of Madhya Pradesh as it did not want to run it''''s Roadways Corporation being MPSRTC, principally, for whose benefit the scheme had been notified.

20. The action of Government of Madhya Pradesh to wind up it''''s Corporation became subject matter of challenge in a writ petition filed before the Madhya Pradesh High Court by certain employees of that Corporation. In that writ petition no relief was granted and the SLP being no. 23463 of 2011 was also dismissed on 04.05.2012.

21. Also, upon notified scheme being rescinded, a PIL by one Kashmiri Lal Batra is said to have been preferred before the Madhya Pradesh High Court being writ petition no. 8678 of 2013 (PIL) for issuance of permits of certain inter-State routes in accordance with the reciprocal agreement. That petition was decided by a judgment dated 26.11.2014 with the following directions:-

"17. Consequently, this petition is disposed of with the following directions:-

(1) The State of M.P. Shall initiate proceedings in regard to grant of stage carriage permanent permits for trips allocated to it in accordance with the reciprocal agreement mentioned in Schedule B of the Reciprocal Agreement and complete the process of allotment of permits within a period of two months from the date of passing of this order.

(2) After issuance of permits to the operators, the State of U.P.-respondent no. 1 shall counter sign the same within a period of 15 days and shall also provide facilities to the stage carriage buses and vehicles of parking in the State of U.P. at part with the vehicles of State of U.P.

No order as to costs."

22. In this backdrop, Shri L.P. Naithani, learned Senior Counsel assisted by Shri H.P. Dube, learned counsel for the petitioners has vehemently contended that in the aforementioned facts there is hardly any dispute regarding the route in question, which was notified by the State of M.P. on 4.4.1985 known as Scheme No. 67 of 1985. The petitioners were permit holders and as such they are very much saved under the scheme and only in this backdrop they were plying their vehicles on the route in question. Shri Naithani, learned Senior Counsel has further made submissions that the issue is sub-judice in the proceeding pending before Hon''''ble the Apex Court in Special Leave to Appeal (Civil) No. 38259 of 2012 and the rights of the parties are to be governed in the fore corner of the interim order accorded by the Apex Court. Once the Apex Court in its order dated 14.12.2012 had maintained the interim order so accorded by the Division Bench of this Court dated 19.7.2012 and thus only the persons those are permit holders can ply their vehicles on the route in question and so far as other persons are concerned specially the contesting private respondents, the order of status quo with regard to plying of the vehicle has to be construed to have injected them from plying of their vehicles on the disputed route in question. As such he argued that no other person could enter on the basis of alleged permission without leave of Hon''''ble Apex Court. He further made submission that only exception was accorded by Apex Court in its order dated 16.4.2013, whereby the persons those have filed impleadment application in SLP No. 38259 of 2012 were permitted to ply their buses on the route involved in those proceedings and once there is no modification of the order passed by the Apex Court, no other person is entitled to get license and as such the STAT has erred in law while according permit to the contesting respondent Nos. 8 and 9.

23. On the basis of aforementioned facts, the State Transport Authority (STA), U.P. having full knowledge of status quo order dated 14.12.2012 passed by Hon''''ble Apex Court in SLP (C) No. 38259 of 2012 had proceeded to issue permits in favour of eighth and ninth respondent on the route in question allegedly in compliance of the direction issued by the STAT in the impugned judgment and order dated 13.1.2017 passed in Appeal Nos. 78 of 2011 and 82 of 2011, as such the impugned permits in favour of eighth and ninth respondent is in clear violation of status quo order passed by Hon''''ble Apex Court in aforementioned case and therefore, the order passed by STAT is void ab initio. In support of his submissions he has placed reliance on the judgments in Mulraj v. Murti Raghonathji Maharaj, AIR 1967 SC 1386; Capt. Dushyant Somal v. Smt. Sushma Somal & Anr. & connected matter, (1981) 2 SCC 277; Satyendra Pal v. The Regional Transport Authority, Agra & Anr., 1982 All.L.J. 310; Shyam Kumar Nirmal & Ors. v. Municipal Board, Vrindavan & Ors., 1992 AWC 1263; Delhi Development Authority v. Skipper Construction Co. (P) Ltd. & Anr., (1996) 4 SCC 622; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc., AIR 1997 SC 1240; Mohd. Sajid Ansari v. State of U.P. & Ors., 2006 (4) ADJ 273 and Rasid Javed & Ors. v. State of U.P. & Anr., (2010) 7 SCC 781.

24. On the basis of aforesaid judgments, it has been suggested that if any order is made or something is done in violation of any stay order/injunction, the same is liable to be undone and the status quo ante is necessary to be maintained so as to meet the ends of justice and to maintain the majesty of Hon''''ble Court''''s order. As such Shri Naithani, learned Senior Counsel submitted that the issue and countersignature of the impugned permits is absolutely nullity and as such the same deserves to be quashed by this Court.

25. Per contra, Shri Shashi Nandan, learned Senior Counsel assisted by Shri G.K. Malviya appearing for eighth and ninth respondent has vehemently opposed the writ petition and submitted that the Act of 1988 guaranteed right to every citizen whether rich or poor to take up and carry on, if he so wishes, motor transport vehicles. It is only the concerned State, which can impose reasonable restrictions. Present Act is more liberal, which provides liberal policy for grant of permit to those, who intend to enter the motor transport business as such it is suggested that the transport business cannot be monopolised and the petitioners just to monopolise their business on the route in question either one reason or the other are infringing the rightful claim of other stake holders. Once the State Government of Madya Pradesh rescinded all the scheme of nationalisation including Scheme No. 67 w.e.f. 1.6.2008, then the petitioners cannot have exclusive right over the route in question. He further made submissions that once the State Government has rescinded the Scheme No. 67, therefore, the entire claim, which was based upon the earlier reciprocal agreement was no more in existence. So far as status quo order passed in Special Leave to Appeal (C) No. 38259 of 2012 dated 14.12.2012 is concerned, the same protects the rights of the petitioners alone and once the permit has been increased from 6 to 8 and two vacancies were there, then the respondents had every right to accord permit on the same. At no point of time the authority on spot has flouted the status quo order passed by the Apex Court. On the basis of status quo order the petitioners are claiming exclusive inter-state rights on the route in question and that they should only be permitted to ply their vehicle on the route in question. While according permission in favour of eighth and ninth respondent, the status quo order has not been flouted and the petitioners are still plying their vehicles.

26. Moreover the subsequent notification issued by the State of M.P. on 15.5.2008 was approved by the High court of Madhya Pradesh vide judgment and order dated 21.07.2011 passed in Writ Petition No. 15166 of 2007 and the same was also approved by the Apex Court in SLP (C) No. 23463 of 2011 vide judgment and order dated 4.5.2012. Once the notification dated 15.5.2008 had been approved and the route became non-nationalised, therefore, by no stretch of imagination the argument advanced by the petitioners can be accepted. Moreover while according status quo order in favour of the petitioners, Hon''''ble the Apex Court had not conceived that the status quo order would be in rem. Once the route became non-nationalised, there was no impediment in according any license or permit in favour of the private respondents. The said license had been accorded on account of increase of two permits.

27. Heard rival submissions and perused the record.

28. In the present matter, admittedly the petitioners are the operators on the route in question and definitely they are trying hard not to accord any permit to other players on the said route. It is relevant to indicate that under Section 47 (3) of the Act of 1939 the strength of route could only be fixed by RTA. The concept of strength had been deliberately omitted in the Act of 1988. The obvious reason in the mind of the framers for omitting any provision analogous to Section 47 (3) of the Act of 1939 in the Act of 1988 was that there should be competition, and because under the old Act the existing operators would obstruct grant of permit of their route on the basis of strength fixed by RTA and thus they created a monopoly in their favour. The said feature was not in the interest of public at large as competition ensures quality of service and reasonable rates. The entire aim and object behind the Act of 1980 was policy of liberalisation. The Hon''''ble Apex Court in Mithilesh Garg v. Union of India & Ors., AIR 1992 SC 443 has held in para 5 as under:-

"A comparative reading of the provisions of the Act and the old Act makes it clear that the procedure for grant of permits under the Act has been liberalised to such an extent that an intended operator can get a permit for asking irrespective of the number of operators already in the field."

29. In para 7 of the said judgment, the Supreme Court observed that there is no threat to the existing operators as their fundamental right guaranteed under Article 19(1)(g) is not being threatened in any manner merely because others are also being given permit to operate on the route. The only effort of the existing operators is to stop new operators from coming in the field as competitors. The Supreme Court observed that this stand of the petitioner was not justified. More operators means healthy-competitions and efficient transport system. Overcrowded buses, passengers standing in the aisle, clinging to the bus-doors and even sitting on the rooftops are some of the common sights in this country. More often one finds a bus which has noisy engine, old upholstery, uncomfortable seats and continuous emission of black-smoke from the exhaust pipe, which is not in the public Interest.

30. Hon''''ble Apex Court in Vishundas Hundumal v. The State of Madhya Pradesh & Ors., AIR 1981 SC 1636 has interfered in the matter of discrimination and scheme of nationalisation of routes. Certain existing operators allowed to operate on overlapping portions of notified routes while petitioners (in the said matter) were denied such facility. The Supreme Court directed the petitioners also to be given similar facility.

31. Moreover the similar controversy has also been considered by the Apex Court in Mithilesh Garg (Supra), wherein the liberalisation for private sector operations in the road transport field under Section 80 and other provisions of the Act of 1988 was subjected to challenge before the Apex Court primarily on the ground that existing operators were adversely affected. The claim has been negated by the Apex Court as there is no justification for the petitioners to complain against the liberalisation policy for grant of permit under the Act. The relevant paragraphs of the judgment are extracted below:-

"Article 19(1)(g) of the Constitution of India guarantees to all citizens the right to practice any profession, or to carry on any occupation, trade or business subject to reasonable restrictions imposed by the State under Article 19(6) of the Constitution of India. A Constitution Bench of this Court in Saghir Ahmad v. The State of U.P. and Others, [1955] 1 S.C.R. 707 held that the fundamental right under Article 19(1)(g) entitles, any member of the public to carry on the business of transporting passengers with the aid of the vehicles. Mukerjea, J. speaking for the Court observed as under:

"Within the limits imposed by State regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in Article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article."

It is thus a guaranteed fight of every citizen whether rich or poor to take up and carry on, if he so wishes, the motor transport business. It is only the State which can impose reasonable restrictions within the ambit of Article 19(6) of the Constitution of India. Section 47(3) and 57 of the old Act were some of the restrictions which were imposed by the State on the enjoyment of the fight under Article 19(1)(g) so far as the motor transport business was concerned. The said restrictions have been taken away and the provisions of Section 47(3) and 57 of the old Act have been repealed from the Statute Book. The Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business. The provisions of the Act are in conformity with Article 19(1)(g) of the Constitution of India. The petitioners are asking this Court to do what the Parliament has undone. When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of India in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint by the petitioners."

32. In the present matter as per the provisions contained under Clause 3 of Article 348 of the Constitution of India, the notification dated 21st November, 2006 was notified and as per the requirement of sub-section (5) of Section 88 of the Act of 1988 (Act No. 59 of 1988) proposed draft of the agreement entered into between Government of Uttar Pradesh and Government of Madhya Pradesh. In the said agreement it is provided in sub-clause (1) of Clause 4 of the agreement that reciprocal agreement with regard to operation of stage on inter-state routes between Uttar Pradesh and Madhya Pradesh shall be as per Annexure-A and B provided that if any route included in Annexure-A is notified by any reciprocating State, the State whose scheme is effective shall issue permits in accordance with the provisions of the Scheme only and further sub-clause (iii) provided that if the scheme of any route included in Annexure-B is modified, so as to allow operation by the private operators, such route shall deem to have been converted into Annexure-A. It is further submitted that in view of the aforesaid provision Annexure-A is meant details of "inter state routes for the operation of private operators" and Annexure-B is meant details of "inter state routes for the operation of transport corporation." As such on the basis of aforesaid provisions the private respondents were accorded permits on the route in question from U.P. side at Sl. No. 89 in Annexure-A in the said agreement, which was meant for private operators and there were two vacancies existing since 2006, as such existing operators specially the petitioners, who wanted to create monopoly on the route in question had questioned the grant of permit of the respondents in the present matter on the basis of two vacancies, which were existing since 2006, and permits were accorded in their favour. The same was also countersigned in public interest under the terms and conditions of the aforesaid agreement. The relevant portion of Annexure-A is reproduced as under:-

S. No.

Name of the Route

Kilometers

Agreed Trips

Number of Permits

Total Kilometers

Uttar Pradesh

Madhya Pradesh

Total Kilometers

Uttar Pradesh

Madhya Pradesh

Uttar Pradesh

Madhya Pradesh

In Madhya Pradesh by the operators of Uttar Pradesh

In Uttar Pradesh by the operators of Madhya Pradesh

1

2

3

4

5

6

7

8

9

10

11

?..

?..

?..

?..

?..

?..

?..

?..

?..

?..

?..

89

Mahoba-Chatarpur Via Malhera

22

29

51

24

24

8

8

696

528

?..

?..

?..

?..

?..

?..

?..

?..

?..

?..

?..

33. The said notification was subjected to challenge before the Division Bench in a judgment reported in ADJ 2011 (2) 191 (Avinash Kumar Jain & Ors. v. State of U.P. & Ors.) in which it was held that both the States i.e. State of U.P. and State of M.P. are bound by the terms and conditions of the agreement dated 21.11.2006. The same was subjected to challenge before the Apex Court in S.L.P. (C) No. 20210 of 2011 along with connected S.L.Ps. and vide judgment and order dated 1.3.2016 the same was dismissed and as such the notification/agreement dated 21.11.2006 was very much approved by the Apex Court, whereby two permits were also increased by both the States from 6 to 8 and against only two increased permits, rights have been conferred in favour of eighth and ninth respondent.

34. It is also relevant to submit that in Writ Petition No. 34467 of 2012 four private operators have been impleaded as opposite parties as they were granted regular stage carriage permits by the State Transport Authority, Gwalior, M.P. on the non notified inter state route known as ''''Mahoba to Gwalior via Garhi Malehra-Chattarpur-Navgaon-Mauranipur-Jhansi-Dabra'''', which is at Sl. No. 185 of the aforesaid reciprocal agreement. The counter signature upon the permits of the applicants had also been made by the Secretary, S.T.A., U.P. Lucknow. In the said writ petition, an interim order was passed on 19.7.2012 to the effect that in the meantime, status quo with regard to ply of the buses will be continued till further orders to be passed by this Court. Thereafter, during the pendency of the aforesaid writ petition some private operators of MP applied for grant of regular stage carriage permit on the route No. 89 in the Annexure ''''A'''' of the aforesaid reciprocal agreement dated 21.11.2006. The STA Gwalior granted permits to the aforesaid private operators and the Secretary, STA, U.P. in its turn countersigned the aforesaid permits. Thereafter, the petitioner filed Contempt Petition No. 4174 of 2012 for violating the order dated 19.7.2012 granting permits and extending the trips to the private operators. The said contempt petition has been dismissed as infructuous on 20.12.2016. Finally the Writ Petition No. 34467 of 2012 along with Writ Petition No. 58112 of 2012 have been dismissed vide order dated 29.11.2012.

35. Aggrieved with the aforesaid judgment dated 29.11.2012, SLP (C) Nos. 38259 of 2012 and 11898 of 2013 have been filed before the Apex Court in which an interim order was passed by the Supreme Court on 14.12.2012 directing status quo with regard to plying of buses as granted by the High Court on 19.7.2012. Since due to interim order the Secretary, STA, U.P. Lucknow had stopped plying of the vehicles of the private operators, they filed impleadment applications in SLP (C) No. 38259 of 2012, which were allowed. Thereafter, on application being moved by them for direction/clarification of the order dated 14.12.2012, the Supreme Court taking note of public interest passed the order dated 16.4.2013 directing the respondents to allow the applicants to ply their vehicles on the respective routes.

36. It is contended that the respondents were neither the parties before the High Court nor before the Supreme Court and as such the interim order passed by the Supreme Court will not have binding effect on the respondents. The permits and and countersignatures have been granted to the respondents conditionally subject to final decision of SLP No. 38259 of 2012. The existing operators are six in numbers and they have filed several writ petitions any how to restrain other private operators for entering into the field of transport business and want to establish monopoly on the route in question.

37. In the aforementioned facts and circumstances, it is apparent that the existing operators under the new Act (Act of 1988) have no locus to challenge the grant of motor permits vide Mukesh Kumar v. Regional Transport Authority, Ghaziabad & Ors., 2003 (51) ALR 84. The relevant paras of the said judgment is quoted as under:-

"3. The petitioner is an operator on the said route and obviously, he does not want others to be granted a permit on the said route. In this connection, it may be noted that under section 47(3) of the Motor Vehicles Act, 1939 strength of the route could be fixed by the R.T.A. This concept of strength has been deliberately omitted in the Motor Vehicles Act, 1988 and now there is no concept of strength. It is obvious that the intention of omitting any provision analogous to section 47 (3) of the Motor Vehicles Act, 1939 in the Motor Vehicles Act, 1988 was that there should be competition because under the old Act, the existing operators would obstruct grant of permits on their routes on the basis of the strength fixed by the R.T.A., and thus, they created a monopoly in their favour. This was obviously not in the interest of the public as competition ensures that the rates are kept at a reasonably low level and the quality of service provided is good. Since there was a policy of liberalisation in the Motor Vehicles Act, 1988 this Court cannot obstruct the aforesaid the said policy of Parliament.

4. In Smt. Mithlesh v. Union Of India & Anr., AIR 1992 SC 443, the Supreme Court referred to the liberalised policy under the Motor Vehicles Act, 1988.

5. In para 5 of the said judgment, the Supreme Court observed :

"A comparative reading of the provisions of the Act and the old Act makes it clear that the procedure for grant of permits under the Act has been liberalised to such an extent that an intended operator can get a permit for asking irrespective of the number of operators already in the field."

6. In para 7 of the said judgment, the Supreme Court observed that there is no threat to the existing operators as their fundamental right guaranteed under Article 19(1)(g) is not being threatened in any manner merely because others are also being given permit to operate on the route. The only effort of the existing operators is to stop new operators from coming in the field as competitors. The Supreme Court observed that this stand of the petitioner was not justified. More operators means healthy-competitions and efficient transport system. Overcrowded buses, passengers standing in the aisle, clinging to the bus-doors and even sitting on the rooftops are some of the common sights in this country. More often one finds a bus which has noisy engine, old upholstery, uncomfortable seats and continuous emission of black-smoke from the exhaust pipe, which is not in the public Interest.

7. The Supreme Court referred to several earlier decisions of the Court, e.g., Jashbhai Desai v. Roshan Kumar, AIR 1976 SC 578 ; Rice and Flour Mills v. N. Teekappa Gowda and Ors., AIR 1971 SC 246, etc. in which it was held that rival operators have no locus standi to file a writ petition. The Supreme Court observed that the Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business. The provisions of the new Act are in conformity with Article 19(1)(g).

8. Learned counsel for the petitioner referred to para 14 of the aforesaid judgment. In our opinion, para 14 of the aforesaid judgment goes against the petitioner as the said para discloses the contention of the petitioner that it is in the public interest to limit the grant of permits on the route was negatived.

9. Learned counsel for the petitioner has relied upon the Division Bench decision of this Court in Surendra Rao v. R.T.A. Gorakhpur, 1992 (2) AWC 849 : AIR 1992 Allahabad 211, and has referred to para 4 of the said decision. He has submitted that while existing operators cannot oppose the grant of permit nor can they challenge the order granting permit, it has also been observed in para 4 of the said judgment that the area of the route cannot be permitted to be converted into a racing ground for heavy vehicles in order to pick up more passengers en route thereby exposing both the person and property of the public to great danger.

10. In our opinion, the aforesaid observation in para 4 of the decision in Surendra Rao''''s case (supra), cannot be interpreted to mean that grant of permit can be denied on the ground that there are already enough motor vehicles on the route. If a route is being converted into a racing ground, then those who are inefficient will be eliminated by competition. In our opinion, the applicant for permit on any route (except a nationalised route) has to be granted the permit on his paying the requisite fees. For this purpose, the observation in para 4 of the Surendra Rao''''s case (supra), is to be read along with decision of the Supreme Court in Mithlesh Kumar''''s case (supra), where it was observed in para 5 that a permit has to be granted on asking for it. The observations of the Supreme Court are binding on the High Court under Article 141 of the Constitution, and this Court cannot take a view contrary to that of the Supreme Court.

11. Competition is healthy and good and is in the public interest because it ensures low rates and efficient transport system. If a contrary view is taken, the will of Parliament as evident from omission of Section 47 (3) of the old Act will be frustrated by indirect methods."

38. The rights of existing operators have been done away by deleting Section 47 and 57 from the Statute Book by which the existing operators had right to object the grant of permit. In the present matter the entire exercise has been done by the respondents in public interest against the existing two vacancies, which were lying vacant since 2006. The counter signature has also been endorsed upon the permits of the contesting respondents subject to final decision in SLP (C) Nos. 38259 of 2012; 58112 of 2013 and 8033 of 2015.

39. Hon''''ble the Apex Court while passing the order dated 27.6.2017 in Special Leave to Appeal (c) No(s).15790 of 2017 had directed this Court to decide the matter on merits, and moreover on the basis of status quo order the petitioners are not uprooted from the route in question and admittedly they are plying their vehicles. Once the two vacancies, which were lying vacant since 2006, on the basis of gazette notification dated 21.11.2006, and the same was also approved by the Apex Court, then in such situation for all practical purposes it cannot be presumed that meanwhile two permits could not be accorded to some one else.

40. In view of above, the Court does not find any infirmity or illegality in the impugned order. The writ petition is dismissed accordingly.