Thomas v. Thomas — 1963 DIGILAW 93 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. In this writ petition Mr. N. K. Varkey, learned counsel for the petitioner, challenges the grant of a temporary permit under S.62 of the Motor Vehicles Act by the 2nd respondent herein viz., the State Transport Authority in favour of the 1st respondent, by its order Ext. P 1 dated 31-1-1963 in respect of a route lying within three regions. 2. Apart from the various grounds of attack levelled as against the order that there is absolutely no justification for grant of a temporary permit on merits, the more serious attack that has been made as against the order, is that the State Transport Authority has acted without jurisdiction in granting the permit evidenced by Ext. P. 1. 3. Mr. K. Neelakanda Menon, learned counsel for the 1st respondent, as well as the learned Government Pleader appearing for the State Transport Authority, the 2nd respondent, have taken up the position that the jurisdiction of the state Transport Authority to grant the permit in question, is to be found in S.44(3)(b) of the Motor Vehicles Act. 4. Therefore, the short question that arises for consideration in this writ petition is as to whether the jurisdiction of the State Transport Authority to pass the order in question is contained in S.44(3)(b) of the Motor Vehicles Act. It is needless to state that if the respondents are not able to sustain the stand taken by them, the grant of the permit whatever may be its correctness on merits will have to be interfered with, on the ground that it is one made without jurisdiction, But I will immediately show that it is not possible for me to accept the contention of Mr. N. K. Varkey, learned counsel for the petitioner. 5. As Mr. N. K. Varkey learned counsel for the petitioner has referred me to certain provisions of the statute, which according to him, really indicate that the jurisdiction in such matters is almost exclusively vested in the Regional Transport Authority and as it is his further contention that S.44(3) of the statute itself clearly shows that the State Transport Authority is to exercise its functions "save as otherwise provided by or under this Act", it is necessary to refer to some of the provisions of the statute referred to me by the learned counsel. 6. 6. S.43 deals with the power of the State Government to control road transport, and it also gives jurisdiction to the State Government, by notification in the official Gazette, to issue directions to the State Transport Authority in respect of the various matters referred to therein. S.44 deals with the constitution of the Transport Authorities. S.44(1), excluding the two provisos, is also material for the present purpose, and it is to the following effect: "44(1) The State Government shall, by notification in the official Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in sub-s.(3), and shall in the like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (in this chapter referred to as regions) as may be specified in the notification, in respect of each Regional Transport Authority, the powers and functions conferred by or under this chapter on such authorities: .. .. .. .." It will be seen from the provisions of S.44 (1) that the State Transport Authority is constituted for the entire State to exercise and discharge the powers and functions specified in sub-s.(3) of S.44. Again it will be seen that the Regional Transport Authorities are to exercise and discharge throughout such areas, which are referred to as the 'regions' the powers and functions conferred by or under the said chapter on such authorities. Therefore it will be seen that under Sub-s.(1) of S.44 the State Transport Authority, which is constituted, has got jurisdiction throughout the State, and the Regional Transport Authorities, that are no doubt constituted under the same sub-section, can exercise and discharge, throughout such areas which are designated as 'regions' and which are to be specified in the notifications constituting those authorities, the powers and functions conferred by or under Chapter IV. It will also be seen that the jurisdiction of the Regional Transport Authority is more or less limited to the region in respect of which it is constituted. But no doubt, it has got jurisdiction to exercise the powers and functions which are conferred upon it by Chapter IV of the Act. 7. It will also be seen that the jurisdiction of the Regional Transport Authority is more or less limited to the region in respect of which it is constituted. But no doubt, it has got jurisdiction to exercise the powers and functions which are conferred upon it by Chapter IV of the Act. 7. Sub-s.(3) of S.44, together with the various sub clauses, is to the following effect: "A State Transport Authority shall give effect to any directions issued under S.43, and subject to such directions and save as otherwise provided by or under this Act shall exercise and discharge throughout the State the following powers and functions, namely, (a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the State; (b) to perform the duties of a Regional Transport authority where there is no such authority and if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions; (c) to settle all disputes and decide all matters on which difference of opinion arises between Regional Transport Authorities; and (d) to discharge such other functions as may be prescribed." It will be seen that the State Transport Authority is bound to give effect to the directions issued under S.43, that is, by the State Government, and it is also to act subject to such directions and "save as otherwise provided by of under this Act." 8. A very serious controversy is raised as to what exactly is meant by the expression "save as otherwise provided by or under this Act." According to Mr. N. K. Varkey, learned counsel for the petitioner, the jurisdiction of the State Transport Authority to function in respect of the matters mentioned in clauses (a) to (d) and referred to in Sub-s.(3) of S.44, should be considered to be subject to the other provisions of the statute in and by which specific powers may have been given to the Regional Transport Authority concerned. On the other hand, the contention of the learned Government Pleader as well as of Mr. On the other hand, the contention of the learned Government Pleader as well as of Mr. Neelacanta Menon, learned counsel for the 1st respondent, is that the said expression will have to be really read along with the obligation imposed upon the State Transport Authority to give effect to the directions issued by the State Government under S.43 and to act subject to those directions. According to both the learned counsel the expression "save as otherwise provided by and under this Act" should really be intended to mean that in all cases where the directions issued by the State Government are not in conflict or are not opposed to matters specially provided for under the Act, there is an obligation on the part of the State Transport Authority to give effect to those directions and to act subject to those directions; but if in any given case any directions that are given by the State Government under S.43 are in conflict with or opposed to a positive provision contained in the statute itself, there is no obligation on the part of the State Transport Authority to act according to the directions issued by the State Government. Then the obligation is that it should act in accordance with the provisions contained in the statute. That is, in other words, the specific provision in the statute overrides the directions that may have been given by the State Government under S.43 to the State Transport Authority. In particular, the power to grant the permit, which is under attack, as I mentioned already is rested by the learned Government Pleader and Mr. Neelacanta Menon on clause (b) of sub-s.(3) of S.44. Clause (b) of sub-s.(3) of S.44 relates to performance of the duties of the Regional Transport Authority by the State Transport Authority under three different circumstances: (a) when there is no Regional Transport Authority, (b) if the State Transport Authority thinks fit, or (c) if the State Transport Authority is required by a Regional Transport Authority; and under anyone of these circumstances jurisdiction is given, according to the respondents, to the State Transport Authority to perform the duties of the Regional Transport Authority in respect of any route common to two or more regions. 9. S.45 of the statute deals with the general provision as to applications for permits. 9. S.45 of the statute deals with the general provision as to applications for permits. It is to the effect that applications for permit are to be made to the Regional Transport Authority of the region in which it is proposed to use the Vehicle or vehicles. On the other hand, the first proviso to the Section is to the effect that if the vehicle or vehicles are proposed to be used in two or more regions lying within the same State, the applications shall be made to the Regional Transport Authority of the Region in which the major portion of the proposed route or area lies; and it also provides that if the portion of the proposed route or area in each of the regions is approximately equal, the application as to be made to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles. That is purely a matter of procedure. There is also a second proviso to S.45, which states that if it is intended to use the vehicle or vehicles in two or more regions lying in different stages, the application is to be made to the Regional Transport Authority of the Region in which the applicant resides or has his principal place of business. 10. The other provision that requires to be noticed is S.62 which deals with grant of temporary permits. No doubt that Section starts by saying that a Regional Transport Authority may, without following the procedure laid down in S.57, grant permits, to be effective for a period not exceeding four months to authorise the use of a transport vehicle temporarily under the circumstances mentioned in the Section itself. In fact, Mr. N. K. Varkey, learned counsel for the petitioner also relied upon the use of the expression 'Regional Transport Authority' occurring in S.62, in support of his contention that the application, even for a temporary permit is to be made to the Regional Transport Authority, and that may have to be done in accordance with the conditions indicated in S.45 of the Act. S.63 deals with validation of permits for use outside the region, unless the permit has been counter signed by the Regional Transport Authority of that other region. S.63 deals with validation of permits for use outside the region, unless the permit has been counter signed by the Regional Transport Authority of that other region. The section also provides that when a permit is granted in any one State, it shall not be valid in any other State unless it is countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned. Sub-s.(4) of S.63, on which some reliance has been placed by Mr. N. K. Varkey, learned counsel for the petitioner, is to the following effect: "Notwithstanding anything contained in sub-s.(1), a Regional Transport Authority of one region may issue a temporary permit under clause (a) or clause (c) of sub-s.(1) of S.62, to be valid in another region or State with the concurrence, given generally for the particular occasion, of the Regional Transport Authority of that other region or of the State Transport Authority of that other State, as the case may be." It will be seen from the above sub-section that the Regional Transport Authority of any one region is given jurisdiction to issue a temporary permit under clause (a) or clause (c) of Sub-s.(1) of S.62, to be valid in another region, with the concurrence, given generally for the particular occasion, of the Regional Transport Authority of that other region or of the State Transport Authority of that other State, as the case may be. That deals with only two circumstances under which a temporary permit can be granted namely clause (a) or clause (c) of Sub-s.(1) of S.62. S.68 gives power to the State Government to make rules for the purpose of Chapter IV. Under clause (hh) of Sub-s.(2) of S.68, it is provided that the State Government may make rules regarding the conditions subject to which, and the extent to which, a permit granted in another State shall be valid in the State without counter signature. 11. It now only remains to refer to rule 203 of the Kerala Motor Vehicles Rules, 1961, which deals with validation of permits for other regions. 11. It now only remains to refer to rule 203 of the Kerala Motor Vehicles Rules, 1961, which deals with validation of permits for other regions. That rule is to the following effect: "A permit granted by a Regional Transport Authority shall be valid in any other region in this State, without counter signature by the Regional Transport authority of that other region, in the following cases: (a) A temporary permit granted under clause (a) or (c) of S.62 of the Act, for a period not exceeding 20 days; and (b) a temporary permit granted under clause (b) or clause (d) of S.62 of the Act, with the previous approval of the State Transport Authority: Provided that the Regional Transport Authority granting the inter region permit under this rule shall soon after the issue of the permit communicate details of such permit to the Regional Transport Authority of the other region." Under this rule it will be seen that power is given to a Regional Transport Authority to grant a permit in any other region in this State, without counter-signature by the Regional Transport Authority of that other region, under clause (a) or (c) of S.62 of the Act for a period not exceeding 20 days; similarly clause (b) of this rule provides for grant of permit under clause (b) or clause (d) of S.62 of the Act, with the previous approval of the State Transport Authority. 12. Mr. N. K. Varkey, learned counsel for the petitioner, no doubt, relied very strongly on these provisions in support of his contention that it is really the Regional Transport Authority that is given jurisdiction to deal with applications for grant of permit under all the circumstances indicated therein. Therefore, according to the learned counsel, the expression "save as otherwise provided by or under this Act" occurring in S.44(3), must really be intended to limit the jurisdiction of the State Transport Authority in respect of the matters mentioned in clause (a) to (d) of sub-s.(3) of S.44, only in respect of those matters where there is no specific provision made in the statute. And, in this case, it is the contention of the learned counsel for the petitioner that, having due regard to the various provisions of the statute, as well as of the rules, referred to above, conferring jurisdiction essentially and solely only on the regional Transport Authority, to deal with applications of the type in question, it must be considered that these are provisions to the contrary contained in the Act, and, therefore, under those circumstances, the State Transport Authority has no jurisdiction to consider the case of a grant of permit or even grant of a temporary permit, as it has done in this case. 13. I have already indicated the stand taken by the learned Government Pleader as well as by Mr. Neelakanda Menon, for the respondents, and f have no hesitation in accepting their contention to the effect that the interpretation sought to be put upon S.44(3) of the Act by Mr. N. K. Varkey, learned counsel for the petitioner, cannot certainly be accepted. Accepting the contention of Mr. N. K. Varkey, learned counsel for the petitioner, will lead to the anomalous result, namely that the provision contained in clause (b) of Sub-s.(3) of S.44, giving power to the State Transport Authority if it thinks fit to perform the duties of a Regional Transport Authority in respect of any route which is common to two or more regions, will serve absolutely no purpose whatsoever. That is, in other words, that provision will become ineffective. I do not think the Legislature, by making such a provision like that, intended that the provision should have no effect whatsoever. On the other hand, the very reasonable interpretation that has to be placed on sub-s.(3) of S.44, and in particular on the expression "save as otherwise provided by and under this Act" occurring in that sub-section, must in my view, be that the Legislature made it more or less obligatory on the part of the State Transport Authority to give effect to any directions that may be issued under S.43 by the State Government. It has made it obligatory on the part of the said authority to act subject to such directions. It has made it obligatory on the part of the said authority to act subject to such directions. But if any of the directions issued by the State Government under S.43 are in conflict with the statute, or if there are directions contrary in the statute itself there is no such obligation on the part of the State Transport Authority to act in accordance with the directions of the State Government. In my view, the legislature did not intend to go further when it used the expression "save as otherwise provided by or under this Act". Mr. N. K. Varkey, learned counsel for the petitioner, no doubt urged that the said expression must be understood to have reference to the various other provisions of the statute, and in particular, to those provisions which I have already referred which according to him limit the jurisdiction of the State Transport Authority. I have no hesitation in rejecting this contention of the learned counsel for the petitioner. As I mentioned already, under clause (b) of sub-s.(3) of S.44, the State Transport Authority can act under three circumstances; that is, it can perform the duties of a Regional Transport Authority if (a) there is no such authority, (b) if it thinks fit, and (c) if so required by a Regional Transport Authority , and under all these circumstances the State Transport Authority can perform the duties of a Regional Transport Authority in respect of any route which is common to two or more regions. I have already indicated that under S.44 the Regional Transport Authorities are constituted for the particular regions referred to in Chap.4. No doubt, S.44 also says that the powers and functions conferred by or under that chapter on the Regional Transport Authorities can be exercised by such authorities. It is really those powers and functions which are so entrusted to the Regional Transport Authorities again, that can be exercised by the State Transport Authority under sub-s.(3) of S.44. Otherwise the position will be that the State Transport Authority, which is admittedly constituted under S.44(1) to exercise and discharge the powers and functions specified in Sub-s.(3) through the State, will have so far as the present purpose is concerned, no jurisdiction at all to function. Otherwise the position will be that the State Transport Authority, which is admittedly constituted under S.44(1) to exercise and discharge the powers and functions specified in Sub-s.(3) through the State, will have so far as the present purpose is concerned, no jurisdiction at all to function. It cannot certainly be stated that in this case there is no Regional Transport Authority functioning and it cannot also be stated that the Regional Transport Authority has required the State Transport Authority to perform those duties. If at all it can only act under the third contingency in clause (b) of sub-s.(3) of S.44, viz., if it thinks fit. As to under what all circumstances the State Transport Authority should think it fit to act, is a matter not easy to define; and in the nature of things, ordinarily one expects the State Transport Authority to allow parties to have recourse to the provisions of the statute before invoking its jurisdiction. We are not concerned in this case with any improper exercise of jurisdiction, and the question that arises, as I mentioned already, is whether the authority, when it passed the order in question, correctly exercised its jurisdiction it had or acted without jurisdiction at all. So far that is concerned, I am perfectly satisfied that the State Transport Authority has got jurisdiction to act in respect of any route common to two or more regions and that is what it has done in this case. 14. No doubt, Mr. N. K. Varkey, learned counsel for the petitioner raised a further contention to the effect that even assuming that the State Transport Authority can ultimately consider the grant of permit in respect of any route common to two or more regions, such exercise of power comes in only when a proper application has been made by the party concerned before the Regional Transport Authority. I am not inclined to accept this contention of the learned counsel. What sub-s.(3) of S.44 says is that the State Transport Authority shall exercise "the following powers and functions". The powers and functions of a Regional Transport Authority do not consist merely of granting an application or rejecting it; in fact, it starts even from an anterior stage of receiving applications, scrutinising them, and also considering the question of making a grant. The powers and functions of a Regional Transport Authority do not consist merely of granting an application or rejecting it; in fact, it starts even from an anterior stage of receiving applications, scrutinising them, and also considering the question of making a grant. Therefore, when the statute gives large and wide powers to the State Transport Authority, namely to exercise the various powers and functions, in my view, the fact that in this case the application itself was made to the State Transport Authority and the further fact that it entertained that application and dealt with it cannot be considered to be without jurisdiction. 15. Mr. N. K. Varkey, learned counsel for the petitioner, as I mentioned earlier, also raised several grounds of attack on merits as against the grant itself. But I do not purpose to go into all those aspects, because the permit is to expire within a short time. 16. The writ petition therefore fails and is dismissed. Parties will bear their own costs.