JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for enforcement of the Government Order dated 01.07.1999 (Annex. 1) by which the Chief Secretary of the State of U.P. has issued directions to all the District Magistrates and the Senior Superintendents of Police that bus stands for the private bus operators be fixed minimum at a distance of one kilometer from the respective roadways bus stand.
2. The writ petition has been filed by Shramik Samaj Kalyan Sangh, Pariwahan Nigam, U.P. through its Regional President pointing that the petitioner is a registered association and is aggrieved of non-compliance of the aforesaid Government Order by the District Magistrate and the Senior Superintendent of Police of the concerned districts and because of non-compliance thereof, the U.P. State Road Transport Corporation (hereinafter called the "Corporation") is suffering financial loss. The Corporation is taking action against its employees for fall of income, therefore, the petition deserves to be allowed and this Court must issue directions to the District Magistrates and the Senior Superintendents of Police to fix the bus stands of private bus operators according to the said Government Order.
3. We have heard Shri V.D. Dubey, learned Counsel for the petitioner, Shri Samir Sharma for the Corporation and learned Standing Counsel for respondents No. 1 to 4.
4. The only grievance raised in this petition is that the bus stands for the private bus operators have not been fixed by the District Magistrates in accordance with said Government Order dated 01.07.1999 as issued by the Chief Secretary of the State of U.P.
5. The question does arise as to whether such a Government Order could have been issued by the Chief Secretary of the State of U.P. as the bus stand is fixed by the Transport Authorities under the Motor Vehicles Act, 1988 (for short the 'Act').
6. The issue involved herein is no more res integra as it has been considered by the Hon'ble Apex Court time and again. The control of transport vehicles or traffic is to be governed by the provisions of the Act, and the relevant provision of it is Section 96(2)(xxi), which empowers the State Government to make Rules for the purpose of carrying into effect the provisions of Chapter VII of the Act in response to all or any of the matters mentioned therein. Clause 21 of the same reads as under:-
21, Prohibiting the picking-up or setting down of passengers by State or contract carriages at specified places or in specified area or at the place other than duly notified stand or halting places and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by the passenger desiring to board or alight from the vehicle at the notified halting place.
7. Section 117 of the Act provides that the State Government or any authority authorised in this behalf by the State Government, may in consultation with the local authority having jurisdiction in the area concerned, determine the places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which the public service vehicles may stop for 6 longer time than is necessary for the taking-up and setting-down a passenger. Section 138 empowers the State Government to make Rules. Clause (e) of Sub-section (2) of Section 138 provides for making Rules for the maintenance and management of a parking place and stand and the fee, if any, which may be charged for their use. The cumulative effect of all these provisions, if they are read together, comes to that: the provisions of Section 96 provides provisions to determine the place for plying of vehicles or terminating the same and it provides for the "duly notified stand". This provision was considered in T.B. Ibrahim, Proprietor, Bus Stand, Tanjore v. The Regional Transport Authority, Tanjore , and the Hon'ble Supreme Court observed as under:-
The expression "duly notified stands" is not defined in the Act but it is reasonable to presume that a duly notified stand must be one which is notified by the Transport Authority and by none other.
8. A similar question arose in Municipal Board, Pushkar v. State Transport Authority, Rajasthan and Ors. , wherein the Apex Court followed its earlier judgment in T.B. Ibrahim (supra) and held that the provisions of Section 76 of the Motor Vehicles Act, 1939 (for short 'the Old Act) (corresponding to Section 117 of the New Act) had nothing to do with the fixation or alternation of a bus-stand and the power to issue a notification fixing a bus-stand was implied in the provisions of Section 68(2)(r) of the Old Act (corresponding to Section 96 of the New Act). It was further held that such a power can be exercised only by the Transport Authority having jurisdiction over the area. Similar view has been taken in Municipal Council, Bhopal v. Sindhi Sahiti Multipurpose Transport Cooperative Society Ltd. and Anr. , Similarly, an identical issue was decided by the Apex Court in Hari Om Gautam v. District Magistrate, Mathura and Anr. , and it approved its earlier judgments and reiterated the same view.
9. Thus, in view of the above, it does not seem to be an order passed by the authority under the Act. The bus stands can be fixed only by State Transport Authorities under the Act and the District Magistrate or Superintendent of Police does not have any competence to pass any order in this respect. Nor such a direction could be issued by the Chief Secretary of the State of U.P.
10. It is settled legal proposition of law that while considering the issue of enforcement of an order, it must be examined by the Court as to whether the same has been passed by the authority under the Act.
11. The Hon'ble Supreme Court in Poona City Municipal Corporation v. Dattatraya Nagesh Deodher , while interpreting the provision under the Bombay Provincial Municipal Corporation Act, 1949, observed as under:-
The benefit of this section would be available to the Corporation only if it was held that this deduction of ten per cent was 'an act done or purported to be done in pursuance or execution or intended execution of this Act.' We have already held that this levy was not in pursuance or execution of the Act. It is equally clear that in view of the provisions of Section 127(4) (to which we have already referred) the levy could not be said to be purported to be done in pursuance or execution or intended execution of the Act.' For, what is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act.
12. The Hon'ble Supreme Court, in Municipal Corporation, Indore v. Sri Niyamatulla AIR 1971 SC 97, interpreted Section 135(2) of the Indore Municipal Act, 1909, which is similar to Section 233(1)(a) of the Act in the following terms:-
The provisions contained in Section 135 of the Indore Municipal Act will be applicable to things done under the Act. It is manifest that in the present case the order of dismissal passed by Shri Ghatpande was beyond his jurisdiction and is, therefore, not an act done under the Act.
(Emphasis added)
13. The aforesaid judgments were reconsidered and approved by the Hon'ble Supreme Court in J.N. Ganatra v. Morvi Municipality, Morvi AIR 1996 SC 2520. Similar view has been reiterated in Borosil Glass Works Ltd. Employees Union v. D.D. Bambode and Ors. AIR 2001 SC 378.
14. In view of the above, it appears that the Government Order (Annex. 1) has been issued by the authority not competent to issue such directions nor such directions could have been issued to the District Magistrates/Senior Superintendents of Police. Such an order cannot be enforced rather requires to be ignored in view of the law laid down by the Hon'ble Apex Court in Ram Ganesh Tripathi and Ors v. State of U.P. and Ors. as it has no sanctity in law.
15. The Courts are meant to enforce the law. Thus, no direction can be issued to any authority under the Act in contravention of law nor this Court is competent to issue direction to any authority to act in contravention of law.(Vide State of Punjab and Ors. v. Renuka Singla and Ors. ; Union of India and Anr. v. Kirloskar Pneumatic Co. Ltd. ; State of U.P. and Ors. v. Harish Chandra and Ors. ; Vice Chancellor University of Allahabad and Ors. v. Dr. Anand Prakash Mishra and Ors. ; & Karnataka State Road Transport Corporation v. Ashrafulla Khan and Ors. ;).
16. In view of the above, as we are of the considered opinion that the order Sought to be enforced does not have any sanctity of law nor It has been passed by the Statutory Authority, it does not require to be executed or enforced. The so called Government Order has been issued without taking into consideration the statutory provisions of the Act, 'therefore, has no force in law.
17. Petition is devoid of any merit and is accordingly dismissed.