TATIA, J. - (1.) THE State Government opened various routes for plying buses of Rapid Transport System vide notification dated 4-11-2006. THE State Government further vide another notification dated 12-12-2006 granted approval of the State Government for implementation of Bus Rapid Transport System (for short BRTS) in the cities of Udaipur, Jodhpur and Kota in Rajasthan. By the same order dated 12-12-2006, the State further granted approval for constitution of Special Bus Vehicles (SPV)- a city level transport company for each of the above cities with the names (1) "udaipur City Transport Services Limited" for the city of Udaipur, (2) "jodhpur City Transport Services Limited" for the city of Jodhpur and (3) "kota City Transport Services Limited" for the city of Kota. THE above four writ petitions have been filed to challenge these notifications opening routes for BRTS and against the grant of approval for implementation of BRTS as well as against grant of approval for constitution of companies mentioned above for the area of Jodhpur and Udaipur cities.
(2.) THE S. B. Civil Writ Petition No. 2067/07 has been filed by the Jodhpur City Bus Owners Union through its authorised representative of said Union and by one Chetan Singh, who has been impleaded in the writ petition as petitioner in his individual capacity on the ground that his fundamental rights are violated by the above action of the State. In this writ petition which was filed before any permit was granted by the respondent- Transport Authority to respondents no. 6 or 7, therefore, the permits which were granted in favour of respondent no. 7 subsequent to the filing of the above writ petition, have not been challenged and only relief of prohibition against grant of permit has been sought. Another S. B. Civil Writ Petition No. 2390/07 has been filed by Chiman Singh and Arjun Parihar for the same reliefs as claimed in above S. B. Civil Writ Petition No. 2067/07 but with challenge to orders granting permits to Mahadev Travels (respondent ). S. B. Civil Writ Petition No. 3537/07 has been filed by Udaipur Kendriya Auto Tempo Sharmik Union and one Tikam Chand Kothari who is permit holder and is plying stage carriage vehicle on the route no. 2 in the city of. On the basis of same facts and grounds as in identical above two writ petitions No. 2067/07 and No. 2390/07, the petitioners have challenged the orders dated 27-10-2007, 23-5-2007 and 7-5-2007 as well as permits granted to respondent no. 6-U. N. Speedways Pvt. Ltd. dated 16-4-2007 and 7-5-2007. These orders and permits are for the route opened in city of Udaipur. By the Writ Petition No. 3896/07, the petitioner Bansi Lai, the permit holder of stage carriage vehicle on the route in Udaipur City, has challenged the orders of the State Government dated 27-10-2006 and 23-5-2007 as well as the permit granted to respondent no. 6- U. N. Speedways Pvt. Ltd. dated 16-4-2006 and 7-5-2007. S. B. Civil Writ Petitions No. 3537/07 and 3896/07, are therefore, for challenging the same orders of the State Government, by which the routes were opened by the orders of the State Government in the city of Udaipur and grant of permit over the above routes. Meaning thereby in all the four writ petitions, the challenge is to the decision of the State Government of opening various routes under BRTS and grant of permits for the routes opened under BRTS as well as against the approval of implementation of BRTS and constitution of above three companies and, therefore, all these writ petitions were heard together and are being decided of by this common judgment.
(3.) THE petitioners' contention in all these writ petitions are that the State Government by order dated 12-12-2006, granted approval for implementation of BRTS in the cities of Udaipur, Jodhpur and Kota as well as by the same order granted approval for constitution of Special Purpose Vehicle (SPV)-a city level transport company, for each of the above cities, namely, Udaipur, Jodhpur and Kota. According to the petitioners, though by order dated 12-12-2006, it has not been specifically and expressly conveyed that these companies are State Transport Undertakings as defined under subsection (42) of Section 2 of the Motor Vehicles Act, 1988 but in fact, they are State Transport Undertakings. According to the petitioners in the State of Rajasthan, there can be only one State Transport Undertaking because of the reason that though the State may have power to constitute State Transport Undertaking or a State Transport undertaking can be constituted by local bodies also under sub-section (42) of Section 2 of the Act of 1988 but the State itself by framing sub- clause (c) of Rule 6. 1 in the Rajasthan Motor Vehicles Rules, 1990, restricted its constitution and by rule and declared that only the Rajasthan State Road Transport Corporation shall be the State Transport Undertaking. Clause (c) of Rule 6. 1 of Rules of 1990 provides that State Transport Undertaking means the Rajasthan State Road Transport Corporation established under section 3 of the Road Transport Corporation Act of 1950. In view of the above legal position, the State Government had no power to grant approval for constitution of companies, like the companies referred above, which may provide service of motor vehicle for carrying passengers for hire or reward, unless the rule 6. 1 (c) is amended. Another contention of the petitioners is that the State Transport Undertaking can be allowed to provide services only on the area or route for which the scheme has been prepared by the State Government by following procedure under Chapter VI, particularly as provided under Sections 99, 100, 101 and 103 of the Act of 1988. The State Government has not prepared any "scheme" as defined by rule 6. 1 (b) of the Rules of 1990 nor declared any area or route to be the area or route under the scheme under Section 99 of the Act of 1988 for the purpose of allowing the State Transport Undertaking to ply their vehicles and to create complete or partial monopoly of said State Transport Undertaking for plying the vehicles in the area or route which may be declared as such area or route under Chapter VI of the Act of 1988. It is also submitted that "scheme" is also defined under sub-clause (b) of Rule 6. 1 of the Rules of 1990 and "scheme" means a scheme framed in pursuance of Section 99 of the Act of 1988. How the scheme can be framed is provided under Section 99 of the Act and it gives opportunity to all persons to examine the scheme and submit the objections to the proposals of the Government under Section 100 of the Act of 1988. Once the scheme is approved after observing the requirements of law as provided under sub-section (1) of Section 99 and after considering the objections, as may be submitted under Section 100, the State is required to publish the scheme in the official gazette and further it is required that the scheme shall be published in at least one news-paper in regional language circulating in the area or route covered by such scheme. With the publication of notification in official gazette in newspaper, as per sub-section (3) of Section 100 of the Act of 1988, the scheme becomes the "approved scheme" and the area and the routes under the scheme are called "notified area" or "notified route". This is the only procedure provided by which monopoly can be created of State Transport Undertaking in the matter of providing service of motor vehicle for carrying passengers for hire and reward and for rest of the routes, there cannot be any monopoly even for State Transport Undertaking. The State Transport Undertaking is also at par with any private operator when State Transport Undertaking wants to ply their vehicles on the route opened under Chapter V of the Act of 1988. According to the petitioners, there cannot be any monopoly when route is formulated and opened by the State Government under Chapter V. The petitioner or the members of the petitioner, they are having stage carriage permits and are plying their vehicles on the routes which are overlapping on the route opened by various notifications issued by the State Government and which are impugned in all the four writ petitions. Therefore, the State excluded the petitioners and petitioner's members from plying their vehicles on the route in question by creating monopoly of respondent companies. It is also contended that the BRTS is in fact an scheme, as defined under sub-clause (b) of Rule 6. 1 of the Rules of 1990 but the scheme has been declared without following the procedure as provided under Chapter VI and by complying with the requirements of law as provided under Sections 99 and 100 of the Act of 1988, the State Government by giving name "system" to BRTS, cannot avoid to follow the procedure as provided under Chapter VI of the Act of 1988. ;