ORDER
1. In this petition counter affidavit has been filed and learned counsel for parties have agreed that petition may be decided finally at this stage.
2. The short but important and interesting question involved in this petition is as to whether the bar created by Section 104 of the Motor Vehicles Act, 1988 (hereinafter referred to as the New Act) shall take into its sweep even such un-notified and independent route, which for some compelling reason had a diversion and shared a common strip with a notified route, which also faced indentical, diversion for the same reason and passed through the strip which was not originally a portion of the notified route.
3. The facts necessary to appreciate the controversy which is subject matter of this petition are that Muzaffarnagar Bijnor route was covered by a scheme framed under Section 68C and confirmed under Section 68D(3) of the Motor Vehicles Act, 1939 (hereinafter referred to as the Old Act). The route was notified under Section 68D(3) of the Old Act on 5-11-1977. This route admittedly passed through Bhopa-Morna and crossed river Ganges from Rawli Ghat for reaching Bijnor. Another route Meerut-Bijnor was not nationalised and it passed through Mawana-Behsuma-Ramraj Dhara-pur and cross river Ganges at Bidurkuti for reaching Bijnor. The aforesaid two routes, one notified and another unnotified were independent and separate routes till 1985. However, a bridge was constructed known as Ganga Barrage at Dewal and was opened for public use in 1985. After construction of the aforesaid bridge the practice of providing pantoon bridges at Rawali Ghat and Bidur Kuti was abandoned and for this reason the route Muzaffarnagar-Bijnor had a diversion from the place Morna and passing through Bara Sadat and Dewal it passed through Ganga barrage for reaching Bijnor. Similarly the route Meerut-Bijnor also had a diversion and passed through Dewal and crossed river Ganges through Ganga Barrage for reaching Bijnor. The aforesaid two routes thus shared a common strip from Dewal to Bijnor for crossing Ganga river. It is undisputed that the strip from Dewal to Bijnor was not part of the route which was notified on 5-11-1977. It is also undisputed that between Dewal and Bijnor there is no other town and all the pantoon bridges which were earlier being provided at Rawali Ghat, Bidur Kuti and other places have been dismantled. Thus all the routes started passing through Dewal and crossed Ganga Barrage for reaching Bijnor. Regional Transport Authority Meerut by order dated 17-5-1990 granted one regular stage carriage permit to one Shri Abdul Ghaffar and by another order dated 4/5-9-1989 granted 21 regular stage carriage permits. One of the permits so granted was in favour of petitioner Manzoor Ahmad. Om Prakash Gupta, respondent No. 3, who holds a regular stage carriage permit for Meerut-Bijnor via Meerapur Dewal barrage filed two revisions Nos. 5 of 1992, and 52 of 1992, under Section 90 of the New Act challenging the grant of aforesaid permits before the State Transport Appellate Tribunal, U. P. at Lucknow. The present petitioner Manzoor Ahmad was opposite party No. 17 in revision No. 52 of 1992. The Tribunal by order dated 6-2-1993 has allowed both the revisions and set aside the orders of the Regional Transport Authority, Meerut dated 17-5-1990 and 4/5-9-1989. Aggrieved by the aforesaid order of the Tribunal petitioner has approached this Court under Art. 226 of the Constitution.
4. Learned counsel for petitioner has submitted that in view of the fact that the strip of the road between Dewal and Bijnor was not part of the notified route and hence on the basis of the diversion in the notified route after construction of Dewal barrage, it could not be said that the bar created under Section 104 of the New Act (Section 68-FF of the Old Act) could be applied for refusing permits to petitioner, on the ground that this small strip is also being used as part of the Meerut-Bijnor route for crossing Ganga. Learned counsel for petitioner has submitted that diversion in both unnotified and notified routes is by way of compulsion. This strip was not part of the scheme provided under Section 68-C of the old Act. No objections were invited and there was no application of mind for notifying this strip. Though the diverted route may be taken as a notified route for the purpose of Muzaffarnagar-Bijnor route but at the same time merely because this trip between Dewal and Bijnor is being shared, it could not be taken to be part of the notified route for refusing permits to Meerut-Bijnor route as held by the learned Tribunal. Learned counsel for petitioner has submitted that the diversion in both the routes is on account of the compelling circumstances and there is no town between Dewal and Bijnor and by sharing the routes interest of Road Transport Corporation is not affected at all. The facts and circumstances in the present case are entirely different from the facts of the case of Janta Motor Transport versus Regional Transport Authority, Meerut, decided by this Court in Special Appeal No. 883 of 1967 and the judgment of the Division Bench of this Court has been illegally relied on by the learned Tribunal for reversing the order of the Regional Transport Authority granting permit to the petitioner. Learned counsel has relied on the case Mithilesh Garg v. Union of India reported in AIR 1992 SC 443 and has submitted that in view of the liberal policy for grant of permits those who intend to enter into the motor transport business under the New Act, could not be refused permits, it has also been submitted that respondent No. 3 has no locus standi to challenge the grant of permit to the petitioner as held by the Supreme Court in the aforesaid judgment. It has been further submitted that application for grant of permit before the Regional Transport Authority given by petitioner was complete in all respects, affidavit was duly filed and the learned Tribunal has illegally made it a ground for reversing the order. The learned counsel has submitted that the Tribunal has failed to point out specifically as to how and in what manner the grant of permit to the petitioner would adversely affect public interest. The order suffers from manifest error of law and is liable to be quashed.
5. Learned counsel for respondent, on the other hand, has submitted that the Tribunal has rightly allowed the revision filed by the respondent No. 3, and has rightly followed the judgment of the Division Bench of this Court in Re. Janta Motor Transport. Learned counsel has submitted that same view has been taken by another Division Bench of this Court in case of Harpal Singh Beniwal v. Regional Transport Authority, Meerut Region, Meerut in Civil Misc. Writ Petition No. 23264 of 1989 which has been decided on 31-1-1991 (reported in (1991) 18 All LR 9). The learned counsel has submitted that after diversion, the directed route became notified route as held by the Division Bench of this Court in Janta Motor Transport case and the bar of Section 104 applied and permits could not be granted. Learned counsel has further placed reliance in case of . M/s. Adarsh Travels Bus Service v. State of U. P. reported in AIR 1986 SC 319 and has submitted that the view expressed by Hon'ble Supreme Court is squarely applicable in the facts of the present case and the petitioner is not legally entitled for any relief. Learned counsel for respondents has further submitted that respondent No. 3 is a permanent stage carriage permit holder for the route Meerut-Bijnor and he has locus standi to challenge the illegal order passed by the Regional Transport Authority in respect of the route, which is without jurisdiction. Learned counsel has relied on the view expressed by a Division Bench of this Court in Surendra Rao v. Regional Transport Authority, Gorakhpur Region, Gorakhpur reported in AIR 1922 All 211 in support of his submission that respondent No. 3 had locus standi to challenge the illegal order passed by respondent No. 2.
6. I have seriously considered the rival, contentions advanced by learned counsel for parties and the material on record. The point of law which needs consideration in the present writ petition can be better understood if the determination of the Tribunal regarding point No. 3 is reproduced at this place:--
"The revisionist filed a sketch map of Muzaffarnagar-Bijnor and Meerut-Bijnor and allied routes along with his revision petition. No counter map has been filed by any of the opposite parties. Rather the learn-ed counsel for the opposite party No. 8 Sri Sudhir Chandra himself advanced arguments before this Tribunal with reference to the map filed by the Revisionist. I, therefore regard the said map as correct. A perusal of the said map reveals that the route from Dewal Barrage to Bijnor is now common to Muzaffarnagar-Bijnor and Meerut Bijnor routes. The permits to the opposite parties have been granted on Meerut-Bijnor and allied routes via Dewal Barrage. The route Dewal-Bijnor being finally notified, the grant of permits to the opposite parties was bad in law. I am fortified in my belief in this respect by the proposition of law laid down by their Lordships of the Hon'ble Supreme Court in Pandian Roadways Corporation Ltd. v. M.A. Egappan reported in (1987) 2 SCC 47 : (AIR 1987 SC 958) and Adarsh Travels Bus Service v. State of U. P. (1985) 4 SCC 557 : (AIR 1986 SC 319).
7. The learned Tribunal for taking the aforesaid view has relied on the view expressed by Hon'ble Supreme Court in Re. Adarsh Travel Bus Service and in Re Pandiyan Road (sic) expressed by the Division Bench of this Court in Re. Janta Motor Transport and others, hence it is necessary to consider the facts and circumstances in which the views were taken by Hon'ble Supreme Court and the Division Bench in the aforesaid cases.
8. In Janta Motor Transport and others the route in question was Moradabad-Meerut route. Up to 1960 it passed via Gajraula Tigri Garh Mukteshwar. Between Tigri and Garh Mukhteshwar there flows Ganga river. Up to 1960 a ferry service was provided in the rainy season. In the fair whether a pantoon bridge was constructed for the convenience of the traffic. In 1962 a pucca bridge was spanned over the Ganges which was called as Bridge Ghat. After the construction of the pucca bridge the Public Works Department of the Government discontinued the construction of pantoon bridge and substituted this portion of the route by directing the road from Gajraula to Garh Mukteshwar across the Bridge Ghat. The petitioner in that case was operating stage carriage on Delhi Hapur-Garh Mukteshwar route. Beyond Garh Mukteshwar he had no permit. However, after construction of Bride Ghat, he applied for extension of the permit from Garh Mukteshwar to Bridge Ghat which was allowed by the Regional Transport Auth-ority. However, in appeal the State Transport Appellate Tribunal set aside the order. Order of the Tribunal was challenged in this Court and the writ petition was dismissed by learned single Judge which was upheld in Special Appeal by the Division Bench and the following view expressed by the learned single Judge was endorsed :--
"In case, for any reason, a part of the road is replaced by a new patch, which so far as vehicular traffic is concerned completely replaces part of the old road in the sense that it becomes the only existing road on which the vehicular traffic may pass, it cannot for a moment be argued that the old route has ceased to exist and there has come into existence a new route for which fresh proceedings under the 1955 Act (now replaced) by Chapter IV of the Motor Vehicles Act, (1939) are necessary. Several alignments may be necessitated on each road every year a'nd if for the sake of such alignments only, which are made to make the road more useful for vehicular traffic; fresh notices were necessary for publishing and finalising the scheme and to make it a notified route again it would be almost impossible to keep any route a legally notified route for any appreciable length of time. Certainly this could not be the intention of the legislature."
9. A perusal of the aforesaid facts and the reasonings given for dismissing the writ petition it is clear that the diversion was not in respect of both the routes as in the present case, nor for the same compelling reason the two routes shared a common passage for reaching the terminii. Now, coming to the case decided by Hon'ble Supreme Court reported in AIR 1986 SC 319 : (1985) 4 SCC 557, facts were that the appellants held a stage carriage permit over the route Meerut to Ambala via Bamanheri Deoband-Gagalheri Saharanpur. One part of the route, namely Meerut-Bamanheri was also part of the nationalised route Meerut-Bamanheri-Hard war while yet another part of the route, namely Gagalheri to Saharanpur is part of another nationalised route Hardwar-Dehra-dun-Gagalheri-Saharanpur. The question before Hon'ble Supreme Court was as to whether the private stage carriage permit holders could be allowed to ply their vehicles over the whole route Meerut to Ambala with the corridor restriction that they would not pickup or set down any passenger between Meerut and Bamanheri and between Gagalheri and Saharanpur. Hon'ble Supreme Court held that this could not be allowed in view of the bar of Section 68-FF. Another case Pandiyan Roadways Corporation Ltd. v. M.A. Egappan reported in (1987) 2 SCC 47 : (AIR 1987 SC 958) was on the facts that an application for variation of the route mentioned in permit was entertained by the Regional Transport Authority during the intervening period of the publication of the Scheme under Section 68-C and publication of the approved or modified scheme under Section 68-D{3) of the old Act. The Hon'ble Supreme Court took the view that even variation of the route could not be done in view of the bar contained in S. 68-F(l-D) of the old Act.
10. From the facts mentioned above, it is manifestly clear that the facts of the case before the Division Bench and the two cases before Hon'ble Supreme Court relied on by the Tribunal for reversing the order of the Regional Transport Authority were entirely different. In the present case the sharing is of only a small strip just before the termin, i.e. Bijnor and that too for the compelling reason that the facility of pantoon bridge for reaching the destination is now no more available. The unnotified Meerut-Bijnor route and other allied routes had to pass through Dewal barrage because there is no other route available. The analogy adopted by Division Bench of this Court on which basis even after diversion Muzaffarnagar-Bijnor route could be taken to be a notified route cannot be extended that far to include even unnotified routes for the reason of sharing the small strip * at the end. As clear from the judgment of the Division Bench, the view was taken as the route could not be taken to be different one merely on basis of realignments here and there, which are made to make the road more useful and convenient for vehicular traffic. Such view was necessary for purposeful and effective implementation of Scheme. No such necessity is in the present case. On the other hand the same analogy may be extended to other unnotified and allied routes, which may be allowed to retain their status and nature without causing any violation of the provisions of the Act and the Scheme. Such routes may also be subject to realignments to make them more useful and convenient. If the analogy adopted by the learned Tribunal is applied, even if the two independent routes join only for a short distance before reaching the terminii, the bar created by law may be attracted, but in my opinion, this cannot be the intention of law. The Tribunal has committed a manifest error of law in taking the view that the Regional Transport Authority could not grant the permit.
11. So far as the facts of the case of Harpal Singh reported in (1991) 18 All LR 9 are concerned, they are also different. In this case Division Bench was considering the grant of permits in respect of Muzaffarnagar-Bijnor route which is a notified route and after even diversion from Morna for passing through Dewal Barrage, it shall continue to be a notified route.
12. Both the learned counsel have addressed on the question of route and have referred to the definition of the word 'route' provided from time to time in different enactments but, in my opinion, after the enactment of the Central Act in the year 1988, i.e.-enactment of Central Act 59 of 1988, definition of the route earlier given are no more relevant. Section 2(38) defines the word 'route' that it means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another. The definition of the route provided under Section, 2(28A) of the Old Act was identical. A close scrutiny of the definition of the word 'route' leaves no doubt that it denotes a line of travel by a motor vehicle for passing from one place to another which is technically called highway or main road. This line of travel may be subject to changes and whatever line is ultimately specified, shall be route between one terminus and another. This may be irrespective of the fact whether it is a notified route or an un-notified route. On the face of this definition different reasonings cannot be adopted in respect of notified and un-notified route. It does not appear to be either reasonable or equitable ' that only because a small portion is used as line of travel by the motor vehicles plying on notifed route and un-notified route in a situation like the present case, the entire un-notified route should be subjected to bar against granting the permits. The peculiar situation as involved in the present case was not there in any of the cases cited and relied on by the counsel for the respondents. In my opinion, in such cases, the testing point should be as to whether by grant of permit the implementation of the scheme over the notified route would be prejudicially affected. However, before the Tribunal no such question was involved or argued and considered. As already noted the State Road Transport Corporation has never objected against grant of permits. In these circumstances, there should not be any hesitation in permitting two independent routes to be used independi-cantly for motor vehciles.
13. The view taken by the Tribunal can also be tested, on other reasonings. It is an admitted fact that there is no town between Dewal and Bijnor and it cannot affect the State Road Transport Corporation in any manner. The sharing of the way is only for a short distance of 11 kms. between Dewal and Bijnor . Dewal-Bijnor route was not part of the notified route. It has been accepted to be part of the notified route for giving purposeful effect to the scheme already approved and notified on 5-11-1977. The approved scheme of 1977 and published OB 5-11-1977 does not contain a provision that the State Road Transport Undertaking shall operate in exclusion of others. Clause (4) provides as under:--
"(4) persons other than the State Transport Undertaking will be permitted to provide the existing road transport service on the portion Muzaffarngar -- Bijnor of the route specified in clause (2) above."
14. Thus the proviso to Section 68E(1) could not be applicable and the existing scheme published under Section 68D could not be modified except by following the procedure laid down in Sections 68C and 68D of the Old Act and the corresponding nrovi-sion of the New Act. Sections 68C and 68D contain provision for objection and hearing before a route is notified for exclusive operation by State Transport Undertaking. In my opinion, in the situation like the present one this valuable right could not be taken away without following the procedure prescribed by law. If such a view is taken it would be in violation of the right guaranteed under Art. 19(1)(g) of the Constitution. The petitioner has been granted permit for independent and separate route. The sharing of the small patch started in 1985, it was not subject matter of consideration when the Scheme was prepared, published and approved by the State Government in 1977. Even after 1985 no effort has been made by the State Government or the U. P State Road Transport Corporation to get the Scheme modified under Section 68E. The Corporation has not even objected against the grant of permits to petitioner and others by the orders which were challenged before the Tribunal. The revision was filed by respondent No. 3 who himself is operating stage carriage on the same route Meerut-Bijnor via Meerapur Dewal barrage.
15. The learned Tribunal has also set aside the order of the Regional Transport Authority on certain procedural irregularities. The main objection taken is that the applications were not supported by proper affidavits. Petitioners in paras 77, 77A, 77B and 77C of the writ petition have made a categorical assertion that the affidavits were filed by the petitioners and the affidavits were before the learned Tribunal also. Aforesaid paragraph 77 and sub-paras, have been replied in para 69 of the counter affidavit. However, a perusal of para. 69 of the counter affidavit clearly shows that the assertion made by the petitioners that affidavits were filed and they were before the Tribunal has not been controverted. Further the Tribunal has not specified any reason as to how the Regional Transport Authority has violated the provisions in granting the permit. The Tribunal was possessed of the whole record and if there was violation of any provisions of law or the grant of permit was not in the public interest in any manner, the specific reasons ought to have been assigned. In my opinion, the view expressed by the learned Tribunal on this score also cannot be accepted. It is admitted fact that in pursuance of the permits granted buses have already started plying over the route in question for the last about three years and if the view taken by the learned Tribunal is accepted it shall cause hardship to various persons employed and engaged in the business apart from causing great inconvenience to the travelling public. The view taken by the Tribunal, in my opinion, is not in consonance with the liberalisation of the policy enunciated by the Motor Vehicles Act, 1988. The observation of the Hon'ble Supreme Court in the case of Mithilesh Garg (AIR 1992 SC 443) are fully applicable in the present case and ought to have been followed by the learned Tribunal. The observations are as below (Para 7):--
".............. More operators mean healthy competition and efficient transport system. Over crowded buses, passengers standing in the aisle, clinging to the bus-doors and even sitting on the roof-tops are some of the common sights in this country. More often one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black-smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter-public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the Old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. The apprehension of the petitioners, that too many operators on a route arc likely to affect adversely the interest of weaker section of the profession is without any basis. The transport business is bound to be ironed out ultimately by the rationable of demand and supply. Cost of a vehicle being as it is the business requires huge investment. The intending operators are likely to be conscious of the economies underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a State is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal."
16. The last question remains about consideration of the locus standi of respondent No. 3 to challenge the order of the Regional Transport Authority before the Tribunal under Section 90. In my opinion, since I have considered the submissions of both the sides on merits and the Tribunal also considered the case of both the sides on merits, it is not now necessary to decide this question, as on merits it has been found that respondent No. 3 had no case to challenge the grant of permits to the petitioner and others; The Division Bench of this Court in AIR 1992 All 211 has expressed the view in this regard and I am in respectful agreement with the view taken therein. It is always the merits of the challenge which should be the prime consideration for judging the locus standi and in the present case it cannot be said that respondent No. 3 had no arguable case before the Tribunal and the order impugned in the present petition could not be reversed on the ground of locus standi only.
17. For the reasons recorded above, this petition is allowed, the order dated 6-2-1993 of the Tribunal passed in Revision No. 52 of 1992 setting aside the order granting regular stage carriage permit to the petitioner is hereby quashed. There will be no order as to costs.
18. Petition allowed.