JUDGMENT

I.A. Ansari, J.

1. The petitioners are permit holders of contract carriage, the permit having been granted by the concerned authorities of the Government of Nagaland and the petitioners have been running accordingly their vehicles as tourist taxis, the primary route of plying of these taxis is between Mokokchung and other places like Kohima, Dimapur, Tuensang in Nagaland. While the petitioners were smoothly running their taxis as contract carriage, respondent No. 2, namely, Secretary, Regional Transport Authority, Mokokchung, issued a licence to the private respondent, i.e., the respondent No. 5, namely, owner of M/s. Link Transport Agency for sale of tickets of public service vehicles. Immediately, after grant of licence to respondent No. 5 as mentioned hereinbefore, the respondent No. 5 asked some of the petitioners to register themselves with the travelling agency of the respondent No. 5 and carry, in their respective taxis, only those passengers, who purchase tickets issued by the said travelling agency. The petitioners, who were so approached by the respondent No. 5, declined and continued to run their business by picking up passengers from the fixed destinations and drop them at the fixed destinations in terms of their respective permits. As the petitioners declined to accede to what the respondent No. 5 had demanded, an order was issued, on 29.9.2004, by the respondent No. 3, namely, District Transport Officer, Mokokchung, directing that, the operators of the commercial public vehicles, within Mokokchung zone, must, with immediate effect, use tickets from the authorized counters only failing which, the authorities would take appropriate action under the Motor Vehicles Act, 1988 (in short "the MV Act, 1988"). The effect of the order, dated 29.9.2004, aforementioned was though all the tourist taxis operating in Mokokchung area had to carry only those passengers to whom the tickets were sold by the said travelling agency of the respondent No. 5. Notwithstanding the order, dated 29.9.2004, aforementioned, as the petitioners continued to run their business as in the past, the respondents/authorities concerned collectively and individually started, according to the petitioners, harassing the petitioners by detaining the vehicles of the petitioners and, at times, seizing their vehicles, and also the documents of the vehicle concerned.

2. In the above backdrop, the petitioners have approached this Court seeking to get set aside and quashed the order, dated 29.9.2004, aforementioned, their case being, in brief, thus : The respondent No. 2 has no authority to grant licence under Section 93 of the MV Act, 1988, to agents or canvassers for sale of tickets for travel by public service vehicles, for, the condition precedent for granting of the licence under Section 93 is that the Government must prescribe the terms and conditions subject to which such licence can be issued or obtained by the agent or canvassers. As far as the State of Nagaland is concerned, the Government has not made any Rules under the MV Act, 1988, nor has the Government prescribed any condition for grant of licence to agents or canvassers in terms of Section 93. This apart, the directions contained in the order, dated 29.9.2004, aforementioned, have been passed purportedly under Section 93 of the MV Act, 1988, though Section 93 gives no such powers to anyone and, more so, to respondent No. 3.

3. The State respondents have resisted the reliefs, which the petitioners have sought for by filing their affidavit-in-opposition, the case of the respondent Nos. 1, 2 and 3 being, briefly stated, thus : The petitioners have not been operating their vehicles as contract carriage for carrying tourists, but have been operating as stage carriage by soliciting passengers on individual basis. The petitioners have been operating their vehicles -in violation of Section 93(1)(i) inasmuch as they are soliciting customers as agent or canvassers for their respective vehicles. The licence to the respondent No. 5 has been granted under the proviso to Sub-rules (5) and (8) of Rule 108 of the Nagaland Motor Vehicles Draft Rules, 2001, read with Section 93(1)(i) of the MV Act, 1988, The respondent No. 2, namely, Secretary, Regional Transport Authority, Mokokochung, is also the District Transport Officer, under Section 93 of the MV Act, 1988. The impugned order has not made it compulsory for the stage carriage permit holders to carry in their vehicles only those passengers, who obtain their tickets from the respondent No. 5. The respondent No. 2 is a competent authority under Sections 206 and 213 of the MV Act, 1988 to oversee the proper implementation of the MV Act, 1988, and it is in exercise of these powers that they have seized the vehicles and the documents. These respondents have good and sufficient reasons for such seizure.

4. As far as the respondent No. 5 is concerned, her case is, inter alia, that the petitioners have no locus standi to challenge the licence issued to herby the respondent No. 2, the licence was validly granted to her and as the concerned authority had granted the licence allowing the respondent No. 5 to work as an agent or canvasser for sale of tickets for travel by public service vehicles, it was not wrong, on the part of the authorities concerned, to inform everyone that they should purchase their tickets only from respondent No. 5. The impugned order, dated 29.9.2004, aforementioned has not adversely affected any of the constitutional or legal rights of the petitioners. The writ petition is wholly without merit and has no legs to stand and the same, therefore, deserves to be dismissed.

5. I have heard Mr. I Longjem, learned Counsel for the petitioners, and Ms. Y. Longkumer, learned Government Advocate, appearing on behalf of the respondent Nos. 1, 2, 3 and 4. I have also heard Mr. B.N. Sharma, learned senior counsel for the respondent No. 5.

6. Before entering into the merit of the present writ petition, it needs to be borne in mind as to what a contract carriage vis-a-vis stage carriage means.

7. While considering the above aspect of the matter, it is also important to bear in mind that as a precursor to the present MV Act, 1988, the Motor Vehicles Act, 1939 (in short "MV Act of 1939") too made provisions for 'contract carriage' as well as 'stage carriage'. While Section 2(7) of the MV Act, 1988, defines as to what a 'contract carriage' is, it was Section 2(3), which defined under the MV Act of 1939, as to what the 'contract carriage' was. Similarly, while the Section 2(40) of the MV Act, 1988, defines 'stage carriage', it was Section 2(29) of the MV Act of 1939, which defined 'stage carriage'. For the sake of brevity, the comparative survey of the definitions of 'contract carriage' and 'stage carriage', in the said two enactments are provided hereinbelow :

8. Under Section 2(7) of the MV Act, 1988, "Contract carriage" means a motor vehicle, which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum -

(a) on a time basis, whether or not with reference to any route or distance ; or

(b) from one point to another,

and in either case, without sloping to pick up or set down passengers not included in the contract anywhere during the journey, and includes -

(i) a maxicab ; and

(ii) a motorcab notwithstanding that separate fares are charged for its passengers.

9. Under Section 2(3) of the MV Act of 1939, 'contract carriage' means a motor vehicle, which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum -

(i) on a time basis whether or not with reference to any route or distance, or

(ii) from one point to another and in either case without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares.

10. Turning to 'stage carriage', it may be noted that under Section 2(40) of the MV Act, 1988, "stage carriage' means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. On the other hand, 'stage carriage', under Section 3(29) of the MV Act of 1939, means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stage of the journey.

11. It may be noted that the definitions of 'contract carriage' and 'stage carriage' in both the said enactments have remained substantially the same. The Apex Court had the occasion to decide as to what is the difference between a 'contract carriage' and 'stage carriage' in Roshan Lal Gautham v. The State of U.P. and Ors. . Laying down the distinctions between the 'contract carriage' and 'stage carriage', the Apex Court observed as follows :

8. By Section 2(3) a 'contract carnage' is defined as a motor vehicle which carries a passenger or passengers on hire or reward under a contract from one point to another without stopping to pick up or set down along the line of that route passengers not included in the contract. A 'stage carnage' is defined as a motor vehicle carrying or adopted to carry passengers for hire or reward at separate fares paid for the whole journey or for stages of the journey. The distinction between the two is this : the contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up other passengers en route. The stage carriage, on the other hand runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel.

12. As already indicated hereinabove, since the definitions of 'contract carriage' and 'stage carriage' have, under MV Act, 1988, remained substantially the same as in the Act of 1939, it follows that the distinction pointed out in Roshan Lal Gautham (supra) still holds the field. Logically, therefore, the distinction between the two is that while the 'contract carriage' is engaged for whole of the journey between two points for carriage of person(s) hiring and has no right to pick up any passenger en route, the 'stage carriage' runs between two points irrespective of any prior contract and it can allow passengers to Board in en route, who pay the fare for the distance that the passengers, in question, propose to travel.

13. In the case at hand, as the petitioners are holders of permit for 'carriage contract', they can ply their respective vehicles on contract basis for the whole of the journey between the two points and cannot pick up any passenger en route. If they violate this condition, the legal consequences would follow ; but from the very nature of the definition of the 'contract carriage' given in Section 2(7) of the MV Act, 1988, it is, admittedly, clear that there is no scope for forcing a carriage contract to pick up only those passenger(s), who buy tickets from any particular travelling agency.

14. Let us, now, turn to Section 93, whereunder the licence to the respondent No. 5 has been granted as agent or canvasser. Section 93 reads as follows :

93. Agent or canvasser to obtain licence. - (1) No person shall engage himself -

(i) as an agent or a canvasser, in the sale of tickets for travel by public service vehicles or in otherwise soliciting customers for such vehicles, or

(ii) as an agent in the business of collecting, forwarding or distributing goods carried by goods carriages, unless he has obtained a licence from such authority and subject to such conditions as may be prescribed by the State Government.

(2) The conditions referred to in Sub-section (1) may include all or any of the following matters, namely :

(a) the period for which a licence may be granted or renewed ;

(b) the fee payable for the issue or renewal of the licence ;

(c) the deposit of security -

(i) of a sum of not exceeding rupees fifty thousand in the case of an agent in the business of collecting, forwarding or distributing goods carried by goods carnages ;

(ii) of sum not exceeding rupees five thousand in the case of any other agent or canvasser, and the circumstances under which the security may be forfeited ;

(d) the provision by the agent of insurance of goods in transit ;

(e) the authority by which and the circumstances under which the licence may be suspended or revoked ;

(f) such other conditions as may be prescribed by the State Government.

(3) It shall be a condition of every licence that no agent or canvasser to whom the licence is granted shall advertise in any newspaper, book, list, classified directory or other publication unless there is contained in such advertisement appearing in such newspaper, book, list, classified directory or other publication the licence number, the date of expiry of licence and the particulars of the authority which granted the licence.

15. Bearing in mind the fact that the definition of "contract carriage', contained in Section 2(7), no way implies that the holder of a permit of 'contract carriage' must pick up passengers, who have obtained tickets from any particular travelling agent or canvasser, who has been granted licence under Section 93, when I turn to analyse Section 93, I notice that no one can engage himself as an agent or a canvasser for sale of tickets for travel by public service vehicles unless he has obtained a licence from such authority and subject to such condition as may be prescribed by the State Government. The Government of Nagaland has, admittedly, not framed any Rules till today under the MV Act, 1988, and no conditions have been prescribed by the State Government by way of any notification or otherwise empowering the Regional or District Transport Authorities to grant licence. In the absence of any such Rules and/or notifications and/or orders as indicated hereinabove, it is wholly impermissible to grant licence as an agent or canvasser to any one. The State respondents have sought to take resort to Sub-rules (5) and (8) of Rule 108 of the Nagaland Motor Vehicles Draft Rules, 2001, to trace their power to issue licence, such as, the one, which has been granted to the respondent No. 5, In view of the fact that the Rules aforementioned are draft rules, it does not empower, in any way, the Regional or District Transport Authorities to grant licence in terms of Section 93. When the granting of the very licence under Section 93 in favour of the respondent No. 5 is not in accordance with law, question of passing of further order(s) by the authorities concerned directing the respondent No. 5 as to how the business of respondent No. 5, as an agent or canvasser, shall be conducted, does not arise at all.

16. Be that as it may, let me, now, come to the impugned order, dated 29.9.2004 aforementioned. For better appreciation of the kind of directions, which the respondent No. 3 has passed, it is appropriate that this order is read in extenso. The impugned order is, therefore, quoted hereinbelow :

Under the provision of Section 93 of the MV Act, 1988 and the conditions made herein by the department, and whereas in the larger interest of the public service, it is hereby ordered all the operators of the commercial public service vehicles within the Mokokchung Zone to used Tickets from the authorized counter only with immediate effect. Failing which, the authority will take appropriate action as per the Act.

17. On a microscopic reading of the impugned order, dated 29.9.2004, aforementioned, what attracts the eyes, most prominently, is that according to the impugned order, all operators of the public service vehicles within Mokokchung Zone are required to use or take tickets from the authorized counter of respondent No. 5. The scheme of the MV Act, 1988, does not prohibit the holder of a 'carriage contract' or of 'stage carriage' contract from allowing passengers to Board in their vehicles, who have not bought their tickets through any particular agent or canvasser appointed under Section 93. There is nothing in the MV Act, 1988, to indicate that if a parson wishes to board a 'contract carriage', he cannot have a direct dealing and contract with the holder of permit of the 'contract carriage' and travel on the basis of the contract, which he or she enters into with the holder of such permit. At the same time, the provisions of Section 93 do not prohibit the holders of 'contract carriage' permit from entering into contract directly with any passenger and carrying him to any destination as per the contract, which the 'stage carriage' enters into with its passenger, the only limitation being that such carriage cannot pick up passenger en route between two points, i.e., the point, where the passengers boards the vehicle on the basis of the contract, and the point, where the passenger alights from the vehicle. Thus, the direction contained in the impugned order, dated 29.9.2004, aforementioned puts wholly illegal and highly unreasonable restraint on the holders of the permit of 'carriage contract', such as, the petitioners. This apart, as already indicated hereinabove, even a passenger cannot be directed to purchase tickets from any particular agent or canvasser appointed under Section 93 of the MV Act, 1988, for, there is nothing in the MV Act, 1988, which stops a person from travelling in a 'stage carriage' in terms of the contract, which he directly enters into with the permit holder of the 'contract carriage'. In no way, therefore, the impugned order can be sustained. In fact, if the impugned order is not interfered with, it will only put unreasonable restraint on the petitioners, it would adversely affect their rights to run their business and will also demonstrate that the State is discriminating against them and favouring the respondent No.

5.

18. What emerges from the above discussion is that the directions contained in the impugned order are untenable in law and if the same are not interfered with, it will cause serious miscarriage of justice. In view, however, of the fact that the petitioners have not sought for cancellation of the licence, which has been granted by the respondent No. 3, I do not interfere with the licence granted in favour of the respondent No. 5.

19. In the result and for the foregoing reasons, the impugned order, dated 29.9.2004, is hereby set aside and quashed.

20. So far as the seizured documents are concerned, the same shall be returned to the petitioners in accordance with law. Since the documents are said to have been seized for specific violation of the provisions of the MV Act, 1988, I do not propose to interfere with the same.

21. Let the parties bear their own costs.