Dr. R. R. Misra, J. - (1.) THE two petitioners in this petition are joint-holders of regular stage carriage no. 153 covered by vehicle no. UMU-9922 on Saharanpur-Muzaffarnagar via Gagalhari-Deoband Bawanhari and allied routes.
(2.) BY means of the present writ petition, the petitioners have challenged the grant of six temporary permits to opposite parties nos. 4 to 9 on the Saharanpur-Muzaffarnagar route by the Secretary of the State Transport Authority who has also been arrayed personally as opposite party no. 3 to the writ petition. The first submission made by the learned counsel for the petitioners is that the Secretary of the State Transport Authority had no jurisdiction to grant six temporary permits in question as he has no power to do the same. We, however, find that the relevant provisions in this regard are contained in Rule 4 -A of the U. P. Motor Vehicles Rules, 1940, whereunder a regional Transport Authority may, by general or special resolution recorded in its proceedings and subject to such conditions as may be specified in the resolution, delegate the power to grant temporary permits to its Secretaty. At the time of hearing learned Standing Counsel had placed before us the relevant resolution of the Regional Transport Authority delegating such a power to its Secretary as contemplated by Rule 44-A of the said Rules. The challenge thrown by the learned counsel for the petitioners is that the power to grant temporary permits under Section 62 of the Motor Vehicles Act, 1939 does not take within its fold the grant of permits under Section 68-F (1) (c) of the Act. For this submission reliance has been placed by the learned counsel for the petitioners on a decision of the Calcutta High Court in the case of Shri Krishnagopal Dutta v. Regional Transport Authority, Burdwan, AIR 1970 Calcutta 104. The view taken in that case is that the power to grant temporary permits has been conferred upon the Regional Transport Authority itself under Section 62 of the Motor Vehicles Act and it cannot be delegated to any other person or authority without a sanction in law. In support of his said submission learned counsel for the petitioners has placed further reliance on the case of Tulsiram v. State Transport Appellate Tribunal, AIR 1982 Alld. 366 wherein this Court has held that for the proposition that in case grant is made by an Authority incompetent to do so, grantees cannot become permit holders. We, however, find that the provisions of Rule 44-A of the said Rules, which were framed in the exercise of powers conferred by Sections 21 and 41 of the Motor Vehicles Act, 1939 were not placed before the Calcutta High Court in that case and that reliance on the case of Tulsiram (Supra) is merely consequential to the above submission. On this aspect of the matter we, however, find that so far as this Court is concerned, problem posed above no longer survives and is by now squarely covered by a decision of this Court in the case of Shiv Dutt Misra v. State of U. P., C. M. Application No. 5986 of 1975 connected with C. M. Applications No. 5987, 5983, 5989 and 1990 of 1975, decided by a common order dated 6th May, 1976 holding that the Secretary of the State Transport Authority has jurisdiction to grant the temporary permits. This decision of the High Court has also been affirmed by the Supreme Court in S. L. P. No. 1044-48/78. In this view of the matter, we find no force in the said submission made by the learned counsel for the petitioners that the Secretary of the State Transport Authority could not grant the permits in question. .
(3.) COMING now to the challenge of validity of Rule 44-A as aforesaid, we find from a perusal of the writ petition that there is no whisper in the petition as to how the validity of that provision is being challenged. In our opinion, for challenging the validity of a provision, necessary foundation has got to be laid first in the writ petition and the same cannot be gone into in abstract or vacuum as held by the Supreme Court in the case of Sant Lai Bharti v. State of Punjab, AIR 1988 SC 485. In the circumstances we decline to entertain the aforesaid plea of the learned counsel for the petitioners. At the time of hearing it was found that the parties are at variance as to whether any vacancy existed for the grant of the six permits in question. Learned counsel for the petitioners submits that there is no vacancy, whereas on the part of the State, the learned Standing Counsel has stoutly submitted that there did exist vacancies for the grant of six permits and the same have been granted accordingly. On the basis of a letter dated 24-4-1989 produced before us by Sri Rakesh Sharma, learned Standing Counsel, it was also urged by the learned counsellor the petitioners that on the basis of that letter the present petitioners already hold a permit for Meerut-Ambala route which overlaps to some part of the present route. Since the said permit was not renewed by the State Transport Authority the present petitioners had filed a writ petition and obtained a stay order and are holding permits for the route in question. It was vehemently submitted by the learned Standing Counsel appearing for the Regional Transport Authority that the petitioners have got a monopoly over the route in question for the last several years and whenever a vacancy occurs and a permit is issued, the present petitioners file a writ petition in that regard. The argument proceeds that having regard the conduct of the petitioners, the present writ petition is not bonafide. Be that it may be, we are not inclined to determine this question.;