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MOHD. SAJID ANSARI versus STATE OF U.P. THRU' PRINCIPAL SECRETARY AND OTHERS

High Court of Judicature at Allahabad

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Mohd. Sajid Ansari v. State Of U.P. Thru' Principal Secretary And Others - WRIT - A No. 18277 of 2006 [2006] RD-AH 7549 (10 April 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Representation not to be decided

Court cannot issue direction contrary to law

No permit over and above the ceiling fixed by the reciprocal agreement on inter-State route A.F.R.

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 18277 OF 2006

Mohd. Sajid Ansari

Versus.

State of U.P. & Ors.

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

The instant case relates to the grant of permits and/or counter-signatures increasing the number of trips of vehicles on inter-State routes under the provisions of the Motor Vehicles Act, 1988 (hereinafter called "the Act"). The facts and circumstances giving rise to this case, which are necessary to explain the controversy involved herein, are stated in brief.

Petitioner has a permanent stage carriage permit on inter-State route, Jhansi-Mahoba via Naugaon, a route which runs to 161 Kms., and out of which, 97 Kms. falls within the State of U.P. and 64 Kms. falls within the State of Madhya Pradesh. There is a reciprocal agreement between the States of U.P. and Madhya Pradesh under the provisions of the Act, providing the ceiling of permits on this route, that is, four trips for the operators of U.P., and accordingly,  the Transport Authority in U.P. has granted three permits. The vehicles have four single trips per day on the route in rotation. Petitioner filed an application in 1990 for increasing one more trip so that the need of the travelling public be served meaningfully and comfortably. However, the said application could not be decided as the Transport Authority held that it could not grant any extra trip over and above the ceiling fixed by the reciprocal agreement, and kept the application of the petitioner pending. There has been an attempt to revise the said agreement. An agreement was published in the Official Gazette of the State of U.P. on  2nd April, 1992 (Annex. 1) for revising the strength. However, large number of writ petitions were filed against the said revised agreement and the same stood quashed vide judgment and order dated 27.7.2005 in Writ Petition No. 24324 of 1994 Abdul Khaliq Vs. State of U.P. & Ors., wherein, it was held that because of the changed circumstances, the said agreement had become meaningless as the petitioner in that writ petition had obtained the interim  order. However, liberty was given to both the States to revise the reciprocal agreement as early as possible. The said exercise has not yet been completed. Hence this petition for issuing direction to the respondents to vary the conditions of permit by providing the extra trip on the route.

Shri G.N. Verma, learned Senior Counsel appearing for the petitioner, has submitted that the representation of the petitioner is pending since 1990 and inaction on the part of the respondent authorities is arbitrary and unreasonable, and therefore, the Court should issue a direction to increase the number of trips on the route.

On the contrary, Shri C.K. Rai, learned Standing Counsel appearing for the respondents has vehemently opposed the petition contending that it is beyond the competence of the Court to issue direction to grant permit/counter signature or increase the number of trips of the vehicles over and above the number provided in the reciprocal agreements, therefore, the petition is liable to be dismissed, and unless the reciprocal agreement is revised, no relief can be granted to the petitioner.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

The petition involves the the following legal questions:-

(i) Whether provisions of sub-section (1) of Section 88 of the Act can be construed independent of the other sub-sections, i.e., (5) and (6) of the said Section;

(ii) Whether Section 88 (4) and the proviso appended thereto create two independent and alternative grounds/modes for the grant of counter-signature of stage carriage permits on inter-statal route; and

(iii) Whether the transport authorities, i.e., S.T.A./R.T.A. can grant permit on an inter-State route over and above the ceiling fixed by the inter-State agreement, and if the permit is not counter-signed by the other authority, whether that permit can be termed as valid in view of the provisions of Section 88 (1) of the Act even for part of the route falling within the jurisdiction of the permit granting authority?

The relevant provisions of the Act read as under:-

"88- Validation of permits for use outside region in which granted. (1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned:

..............

(3) A Regional Transport Authority when countersigning the permit may attach to the permit any condition which it might have imposed if it has granted the permit and may like-wise vary any condition attached to the permit by the authority by which the permit was granted.

(4) The provisions of this Chapter relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of countersignatures of permits:

provided that it shall not be necessary to follow the procedure laid down in Section 80 for the grant of countersignatures of permits, where the permits granted in any one State are required to be countersigned by the State Transport Authority of another State or by the Regional Transport Authority concerned as a result of any agreement arrived at between the States after complying with the requirements of Sub-section (5).

(5) Every proposal to enter into an agreement between the States to fix the number of permits which is proposed to be granted or countersigned in respect of each route or area, shall be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in regional language circulating in the area or route proposed to be covered by the agreement together with a notice of the date before which representations in connection therewith may be submitted, and the date not being less than thirty days from the date of publication in the Official Gazette, on which, and the authority by which, and the time and place at which, the proposal and any representation received in connection therewith will be considered.

(6) Every agreement arrived at between the States shall, in so far as it relates to the grant of counter-signature of permits, be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in the regional language circulating in the area or route covered by the agreement and the State Transport Authority of the State and Regional Transport Authority concerned shall give effect to it."

The aforesaid provisions have been interpreted by various High Courts  from time to time expressing conflicting views.

In Mohd Ibrahim Vs. The State Transport Appellate Tribunal, Madras, AIR 1970 SC 1542, the Apex Court has considered the provisions corresponding to the above referred - to in the Motor Vehicles Act, 1939 (hereinafter called "the Old Act") and observed as under:-

"The combined effect of Section 63, 63-A, 63-B and 63-C is that the inter-State commission will deal with the inter-State permit. The Central Government under Section 63-C of the Act is authorised to make rules in regard to the procedure to be followed in considering an application for grant and counter-signature of permits. In the absence of specific rules, the best way of harmonising the powers and functions is to allow these inter-State authorities to exercise their respective spheres in regard to grant and counter-signature of permits by agreement and accord." (Emphasis added)

The Hon'ble Supreme Court, further in para 14 of the judgment, has laid down as follows:-

"We are, therefore, of opinion that Section 47 (3) of the Act will not apply either to grant or to counter-signature of permits both in the case of inter-State and inter-regional permits. The relevant authorities in two States or two regions will ensure agreement and act in concert as the case may be. The number of services in the region can of course be fixed by the Regional Transport Authority but they will be for the region only. The number of services for inter-regional or inter-State routes beyond the frontier of the region will have to be determined by agreement." (Emphasis  added).

This Court in Writ Petition No. 294 of 1965, Chetan Lal Vs. S.T.A.T. & Ors., decided on 3.5.1965, held that on an inter-State route, the Transport authorities have on competence to grant permit or counter-sign over and above the ceiling fixed by agreement between the two States. The Court held as under:-

"It is urged for the contesting respondents that it is not necessary for the two State Transport Authorities to concur when the strength of a route is raised. This may be true, if the route lies entirely within the territories of one State. Section 47 (3) empowers a Regional Transport Authority to limit the number of state carriages for which stage carriages permit may be granted and does not require it to obtain the concurrence of any other authority. But the language of the sub-section will clearly show that  this provision is confined to the region or specified area or specified route within the region, over which the Regional Transport Authority  has jurisdiction. It does not entitle the Regional Transport Authority to raise the limit or strength unilaterally on the route if the route passes from one Region to another. Similarly, it is difficult to hold that where a route passes from one State to another, the S.T.A. of one State alone is entitled by unilateral act to raise the strength on the route."

The aforesaid judgment of the  learned Single Judge dated 3.5.1965 was approved and confirmed by the Division Bench in Special Appeal No. 447 of 1965, decided on 15.9.1969.

In Dalip Singh Vs. S.T.A.T., Lucknow, AIR 1980 All 404, a Division Bench of this Court (Lucknow Bench) held that if the permits are granted on the inter-State route over and above the ceiling fixed by the reciprocal agreement, by Transport Authority under the State "its operation would be extra-territorial and would suffer by the vice of extra-territoriality." Even passing legislation to that effect would not be valid. The court further held as under:-

"In our opinion, it is not within the competence of any State Legislature to take away by force of a legislation enacted by it, power of other State to enter into an agreement and to fix the number of  stage carriage permits which it would permit on the portion of the inter-Statal route lying within that State as such a legislation would have extra-territorial operation."

Similar question arose before the Delhi High Court in Writ Petition No. 906 of 1977, Nasiruddin Vs. S.T.A.T. & Ors., and Writ Petition No. 163 of 1973, Smt. Sharda Devi Vs. S.T.A.T. & Ors. Both writ petitions were dismissed by a common judgment dated 31.1.1979 holding as under:-

(i) That the question of number of permits to be granted and countersign is governed by the inter-State Agreement;

(ii) That as the grant of counter-signature of the permits on the route is covered by the inter-State agreements, the permits are to be granted and countersigned only in accordance with the agreement and it is not permissible to grant or countersign permits above the limit fixed by the inter-State agreement;

(iii) That it could not be the intention of the Legislature that beyond the determined strength of the route the procedure laid down in Section 57 will apply, the scheme of the Act limits the number of stage carriage. If there is an agreement between the two participating State, then beyond the limit fixed there could be no question of operating any services. The effect of following the procedure laid down in Section 57 beyond the limit fixed would have the effect of increasing the number of stage carriages on the inter-State route on which the two States have previously agreed to limit the services. It could not be the intention of the Legislatures to nullify the inter-State agreements. The true combined meaning of Section 63 (3) and its proviso is that the inter-State agreement envisaged by the proviso would make it unnecessary to follow that procedure laid down in Section 57 for the grant of counter-signature of permits on the inter-State routes within the limit fixed, but once there is an agreement, inter alia, limiting the number of services on inter-State route, the main clause of Section 63 (3) ceases to operate.

Against the said judgment, the Division Bench allowed the appeal in Nasiruddin Vs. S.T.A.T., AIR 1981 Del. 9, and held as under:-

(I) That substantive part of Section 63 (3) of the old Act and the proviso thereto are two independent and alternative modes for counter-signature of an inter-State permit;

(II) That the transport authorities of the two States can grant and counter-sign the inter-State permit over and above the ceiling fixed by Inter-State agreement, for such an agreement does not extend beyond that number and the application of proviso to Section 63 (3) is exhausted when the number of permits agreed upon in the agreement are granted;

(III) That the transport authorities can increase the number of permits on an inter-State route above the limit fixed by the Inter-State agreement and this increase of permit can be done at the time of considering the application for permit or counter-signature.

Subsequently, the appeal against the same judgment in Writ Petition No. 163 of 1973 was decided by the Division Bench of Delhi High Court in Smt Sharda Devi Vs. S.T.A.T. & Ors., AIR 1984 NOC 110 (Del) taking the same view.

The Hon'ble Supreme Court considered the appeals against the two Division Bench judgments of the Delhi High Court in Nasiruddin and Smt Sharda Devi (supra) in the case of M/s. Janta Motor Pvt. Ltd. Vs. S.T.A.T. & Ors., 1984 (Suppl) SCC 711, wherein, under the peculiar circumstances, the appellants therein, though withdrew their appeals, the Apex Court thought it proper to lay down the law and the Court impliedly set aside the judgments of the Delhi High Court though without saying so expressly. The Apex Court observed as under:-

"These appeals have, therefore, to be dismissed as not pressed.....We direct that until the inter-State agreement is finalised, as directed above, and steps are taken for grant of permits in respect of the vacancies existing or created under the agreement, the Transport Authority of Union Territory of Delhi should re-consider the decision in the matter of counter-signatures of existing permits issued by the Transport Authority in U.P. If there be any permit already granted by the Transport Authority of Delhi, the Transport Authority in U.P. may similarly consider the question of counter-signature. If there be any counter-signature made in the manner indicated above, it would be a purely temporary measure for the convenience of the travelling public and would not confer any right for claiming preferential treatment in the matter of filling of vacancies on permanent basis. The counter-signature referred to above, if and when made, shall remain valid only upto the grant of permits on the inter-State route."

The Rajasthan High Court in Sunil Kumar Ajmera & Anr. Vs. Secretary, State Transport Authority, Gwalior & Ors., (1993) 1 RLW 426 and New Vijay Laxmi Bhambhu Transport Company & Anr. Vs. State Transport Commissioner & Anr., WLR 1996 Raj 211 held that the Transport Authority draws its competence from the general provisions of law and not from the agreement and the prohibitory clause in the inter-State agreement cannot over-ride the powers available to the transport authority under the Act. The reciprocal agreement between the State cannot render the statutory provisions as nugatory and observed that the authority is not restrained from issuing fresh permits above the ceiling fixed by the agreement and what the law requires is that before a person operates on the route over the limit fixed by the inter-State agreement, obtaining the counter-signature from the transport authority of other State would be a condition precedent and even if it is not done, the permit will remain operative in the territorial jurisdiction of the granting Stated Authority. However, such a grant would not be against the statutory provisions.

However, the observations made by the Hon'ble Supreme Court in M/s. Janta Motors (supra) had not been noticed by this Court while deciding either of these cases.

The Division Bench of Punjab & Haryana High Court, vide judgment and order dated 6.9.1996 in Writ Petition No. 13560 of 1995, Pawan Kumar Vs. State of Punjab & Ors., considered the similar issue while dealing with the reciprocal agreement between the States of Punjab and Rajasthan and held that once the State has promulgated an agreement with other State while exercising its powers under the Statute, as the said agreement is in consonance with the statutory provisions of the Act, there is no scope of raising the averment that the agreement cannot over-ride the statutory provisions. The Court observed as under:-

"On a perusal of the provisions, as noticed above, we are of the view that where there is a reciprocal agreement between the States and the number of permits to be granted and to be countersigned, no additional permit can be granted to the operators in respect of the route covered by the agreement, otherwise the entire exercise, as undertaken in pursuance of Section 88 (5) and (6), would become wholly unnecessary."

The Punjab High Court, also, considered the judgment of Delhi High Court in Nasiruddin and the judgment of the Rajasthan High Court in Sunil Kumar Ajmera (supra) and observed as under:-

"Regretfully, though respectfully, we have our reservations about the view expressed by Their Lordships of Delhi and Rajasthan High Courts. We are of the view that the intention of the Parliament in providing for lengthy procedure under Clauses (5) and (6) of Section 88, was only to extend that every person interested in operating on the inter-State route, on which the number of permit was proposed to be specified, should be heard before proposal is finalised. Once the number has been specified, it would not be possible for the Authority to entertain any application. It was with this intention that even the procedure of Section 80 was not required to be followed in cases where the permits were being countersigned in pursuance of an agreement. However, it does not mean that once an agreement is concluded, it can never be changed. If on public demand or otherwise in view of increase in the number of passengers the Authority feels that the number of permits need revision, it may make a proposal and finalise it after following the procedure prescribed in Clause (5). However, till the agreement is in operation, the number of permits to be issued or counter-signed cannot exceed that number which has been specified in the agreement otherwise the very purpose of entering into an agreement would be defeated. Surely, it cannot be the intention of the Legislature that even parties to the agreement shall not be bound by the terms thereof, or that they should be permitted to violate it.....We hold that in a case where the two States enter into a reciprocal agreement, permits in excess of the specified number on a particular route can neither be issued nor countersigned." (Emphasis added)

A view similar to that of Punjab & Haryana High court has been taken by the Madhya Pradesh High Court in Writ Petition No. 891 of 1989, Jhamaklal Balmukund Vs. Secretary, S.T.A. Gwalior, decided on 22.8.1989, and Madhya Pradesh State Road Transport Corporation Vs. Nirmal Kumar, AIR 1989 M.P. 212. In the latter case,  the Division Bench of Madhya Pradesh High Court held that "any permit granted over and above the strength fixed by the inter-State agreement would be invalid and without jurisdiction for the reason that "the Legislature has itself made an exception to the provision in the three provisos of the said Section only on the prescribed circumstances." The Court went further and examined the scope of the proviso of the Clause (2) of Article 226 of the Constitution of India in respect of exercise of the jurisdiction of the High Court in relation to the territories within which the cause of action, whole or in part, arose for the exercise of such power, and held that the Madhya Pradesh High Court was  competent to quash any grant of counter-signature over and above the agreement of the permits granted by the authority in Rajasthan as the "permits lacking jurisdictional validity, could not be presented for counter-signature and the same would not be validly counter-signed by the Transport Authority of Madhya Pradesh."

The Apex Court in Mithlesh Garg Vs. Union of India & Ors., AIR 1992 SC 443, held that the provisions of Section 47 (3) and 43-A of the Old Act and Section 80 of the Act have no application in cases of inter-State routes for the reason that grant of permit on inter-State routes is governed by inter-State agreement. The Court observed as under:-

"It has been contended in the writ petitions that different yardstics have been provided for inter-region, inter-region and inter-State permits under the Act. According to the petitioners the imposition of limit for grant of inter-state permits is permissible under Section 88 (5) of the Act whereas no such limit can be imposed in respect of intra-region permits. The contention is that the provisions are discriminatory and are violative of Article 14 of the Constitution of India. We are not impressed by the argument. The three categories of permits-seekers cannot be considered to be belonging to the same class. Different criteria have been provided under the Act for granting permits in respect of each of the categories." (Emphasis added)

The issue was also considered by the Hon'ble Apex Court in Ashwani Kumar & Anr. Vs. Regional Transport Authority, Bikaner & Anr., AIR 1999 SC 3888, wherein the Court rejected the contention that the provisions of Section 88 (1) can be construed independently of other sub-sections and held as under:-

"The Act envisages three categories of permit- seekers, namely, (i) inter-region (ii) intra-region; and (iii) inter State. Different criteria and procedure have been provided under the Act for granting permits in respect of each of the categories. The grant of inter- State permits................. is permissible under Section 88 (5) of the Act. .................... Inter State Route under the Scheme of the Act has to be reciprocal.................... The State Governments concerned are supposed to deliberate and decide the routes to be open as inter-State routes by determining the number of trips each route was to have and prescribe other conditions for the smooth functioning of the Act. ............................Accepting the submissions made on behalf of the appellants would result in frustration of the objective sought to be achieved by the Act............................. The existence of permit depends upon the reciprocal agreements between the State covered by the route, which, admittedly, did not exceed in the instant case. The orders of the authority granting permit in favour of the appellants were thus without jurisdiction."

The correctness of the judgment in Ashwani Kumar (supra) wherein it has been laid down that existence of an inter-State route and reciprocal agreement, fixing the ceiling of permits thereon, are conditions precedent for grant of permit, was doubted being in contravention of the law laid down by the Hon'ble Apex Court in Goverdhanlal Dhawan Vs. State of Bihar, 1988 Suppl SCC 642.

In A. Venkatakrishnan Vs. State Transport Authority, Kerala, (2004) 10 SCC 182, the matter was referred to the larger Bench vide order dated 14th October, 2003. The judgments in Goverdhanlal Dhawan as well as in Ashwani Kumar (supra) had been passed by the Bench of two Hon'ble Judges. The larger Bench decided the said Reference in A. Venkatkrishnan Vs. State Transport Authority, Kerala, (2004) 11 SCC 207 and approved the judgment passed in Ashwani Kumar (supra), observing that existence of route and reciprocal agreement between two States are conditions precedent for considering the application for grant of permit on inter-State route, and no permit can be granted over and above the ceiling fixed by the reciprocal agreement. The Court held as under:-

"Sub-sections (5) and (6) of Section 88 of the Act provide for the manner as regards entering into an agreement between the States, inter alia, to fix the number of permit which is proposed to be granted or counter-signed in respect of each route or area, in respect whereof, publication of proposal is required to be made in the Official Gazette by each of the State Governments concerned in any one or more of the newspapers. After an agreement is entered into between the States, the same is required to be published in the Official Gazette and in one or more of the newspapers in the regional circulating in the area or route covered by the agreement. The State Transport Authority and the Regional Transport Authority concerned are obligated to give effect to such agreement."

While considering the similar issue under the provisions of old Act in R. Venkatesham Chetty Vs. The Karnataka State & Ors., (2004) 13 SCC 659. A Bench of three Hon'ble Judges held as under:-

"Section 63 of the Repealed Act provides that no vehicle can be allowed to ply on an inter-State route unless there is a reciprocal agreement between the two States providing for number of vehicles and trips to be operated on the inter-State route by two or more States published in the respective Gazettes. It is not disputed that the said agreement provided for two permits having one return trip from each State and since there were already two return trips being operated from the side of Karnataka, there was no scope for further grant of an additional return trip. For these reasons, the appellant could not have been granted variation in permits by granting additional return trip on the inter-State route."

Thus, in view of the above, the law can be summarised that existence of a route and reciprocal agreement by two States fixing the ceiling of the permit/number of trips by each State are conditions precedent for considering the application for grant of permit on an inter-State route. The Transport Authority of either State is not competent to grant permit or counter signature over and above the strength fixed by the agreement. Similarly, number of trips provided in the agreement cannot be enhanced, as it would amount to variation of conditions of permit, in contravention of the terms and conditions incorporated in the inter-State agreement, and thus, such an order of the authority either granting permit or counter signature or increasing the number of trips would be without jurisdiction. However, in public interest if both the States come to the conclusion that number of vehicle or trips provided in the agreement are not sufficient to cater the need of the travelling public, the law permits the revision of the agreement by both the States adopting the similar procedure as had been adopted at the time of having the reciprocal agreement initially.

In view of the above, it is not permissible in law that the Court may issue direction to the Transport Authority to increase the number of trips to the petitioner, as it would amount to issuing direction to the Authority to act in contravention of the statutory provisions.

The Court has no competence to issue a direction contrary to law. Nor the Court can direct an authority to act in contravention of the statutory provisions. (Vide  State of U.P. & Ors. Vs. Harish Chandra & Ors., AIR 1996 SC 2173; Union of India & Anr. Vs. Kirloskar Pneumatic Co. Ltd., AIR 1996 SC 3285; and Vice Chancellor, University of Allahabad & Ors. Vs. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264).

In State of Punjab & Ors. Vs. Renuka Singla & Ors. (1994) 1 SCC 175, dealing with a similar situation, the Hon'ble Apex Court observed as under:-

"We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations."

Similarly, in Karnataka State Road Transport Corporation Vs. Ashrafulla Khan & Ors., AIR 2002 SC 629, the Hon'ble Apex Court has held as under:-

"The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injected by law."

Shri G.N. Verma, learned counsel for the petitioner, at this juncture, prayed that instead of issuing this direction, the Court may direct the Transport Authority to consider representation to decide the application and pass an appropriate order.

We are afraid that the relief sought cannot be granted for the reason that we are satisfied that no direction can be issued to increase the number of trips in favour of the petitioner unless the agreement is revised. Even otherwise, the request made cannot be exceeded to for the reason that the Hon'ble Apex Court has deprecated this practice observing that when the facts necessary to adjudicate upon the issue involved are available on record, the Court itself should decide the controversy  rather than issuing direction to the authority concerned to decide the case afresh.

In this connection reference may also be made to the decision of the Supreme Court in A.P.S.R.T.C. & Ors. Vs. G. Srinivas Reddy & Ors,. JT 2006 (3) SC 189 in which strong comments were made against issuance of direction to the authorities to decide the representations as under the garb of deciding the representations, time barred claims were entertained by the authorities. The relevant portion of the judgment is as under:-

"We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to ''consider' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to ''consider' the matter afresh. Be that as it may.

There are also several instances where unscrupulous petitioners with the connivance of ''pliable' authorities have misused the direction ''to consider' issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to ''consider' and dispose of the representation. When the court disposes of the petition with a direction to ''consider' the authority grants the relief, taking shelter under the order of the court directing him to ''consider' the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order ''to consider' as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to ''consider', may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of court's direction to ''consider' the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily wagers seeking regularization/absorption into regular service is a species of cases, where there has been a large scale misuse of the orders ''to consider'."

A Division Bench of this Court to which one of us (Dr. B.S. Chauhan, J.) was a party in Writ Petition No. 8642 of 2003, Rajendra Singh Vs. State of U.P. & Ors., decided on 30.7.2003 has also held that without considering the merit of the case, the Court should not issue a direction to decide representation to any of the authorities for the reason that under the garb of getting the representation decided, the party may succeed in getting adjudicated a time barred claim, may be by an authority having no competence or by deciding the representation an order may be reviewed though remedy of review is not provided under the Statute. In the said case, under the garb of getting the representation decided, the party wanted the authority under the U.P. Motor Vehicles Taxation Act, 1997 to review its assessment. This Court while rejecting the writ petition, held as under:-

"The review application is not maintainable against the assessment order nor any order of rectification is permissible asking the said authority to decide representation would amount to directing him to review the said order which is not permissible in law. Creation of a jurisdiction in a Court is a Legislative function and it cannot be conferred by any means by the Court. Reviews/Appeal is a creation of Statute and it cannot be created by acquiescence of a party or by the order of the Court vide United Commercial Bank Ltd. Vs. Their Workmen, AIR 1951 SC 230 and Kesar Singh & Ors. Vs. Sadhu, (1996) 7 SCC 711."

Similar view has been reiterated in Employees State Insurance Corporation Vs. All India I.T.D.C. Employees Union & Ors., JT 2006 (4) SC 26,  wherein it has been observed as under:-

"We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to 'consider' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to 'consider' the matter afresh."

In view of the above, we are not inclined to issue any direction to the Transport authority to decide the representation of the petitioner considering the said application.

We find no force in the petition. It is devoid of any merit, and accordingly, dismissed.

10.4.2006

AKSI


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