MOHANAN v. R. T. A. , KOZHIKODE — 1982 DIGILAW 59 (KER)

Judgment :- 1. Petitioner, a pucca operator on the Cannanore-Valayam (via Tellicherry) route, aggrieved by Ext. P1 order of Regional Transport Authority, Kozhikode (1st respondent) granting a temporary permit to the 3rd respondent on 17-12-1981 to operate a service for four months on the new route Pulloor-ambara Parassinikkadavu (Via. Tellicherry) seeks a writ of certiorari to quash Ext P1 and consequential reliefs. The two routes overlap between Cannanore to Tellicherry, a distance of over twenty kilometres. Both the routes stretch across Cannanore and Kozhikode districts. 2. The pleadings and the file placed before the Court by the learned Government Pleader disclose the following facts. Parassinikkadavu is an important centre of religious pilgrimage in Cannanore district. Parassinikkadavu Vikasana Samithi on 21-10-1981 represented to the Regional Transport Authority, Kozhikode that a new bus service should be arranged between Pullurampara-Parassinikkadavu (via. Tellicherry and Cannanore) to meet the requirements of the public. Second respondent, Secretary of Regional Transport Authority made enquiries through the concerned Assistant Motor Vehicle Inspector, who reported that there is real necessity for introduction of such a Bus service as people of the Panchayats on the route visit the temple frequently for worship and a direct bus service will be convenient for the people of the concerned villages. The proposed route has a length of 149.5 kilometres and at present no buses are operating on the portion between Pulloorambara and Nellipoyil, i.e. to a distance of 4 kilometres. Previously there was a bus service through this route. A duly notified meeting of the R.T. A. was held on 26-11-1981 to consider the proposal. Kerala State Road Transport Corporation alone objected to the proposal. Petitioner did not object. Meanwhile, K P. Bhaskaran applied for a temporary permit for this route. R T.A. decided to invite applications for Pucca and temporary permits for this route, and directed consideration of the applications received along with applications to be received in response to the invitation. Third respondent also submitted his application for a temporary permit. At a duly notified meeting of the R.T. A. held on 7-12-1981, it was decided to grant temporary permit to 3rd respondent and to reject the application of K.P.Bhaskaran. Petitioner did not raise any objection. It appears that K. P. Bhaskaran has filed an appeal and the same is pending before the appellate authority. At a duly notified meeting of the R.T. A. held on 7-12-1981, it was decided to grant temporary permit to 3rd respondent and to reject the application of K.P.Bhaskaran. Petitioner did not raise any objection. It appears that K. P. Bhaskaran has filed an appeal and the same is pending before the appellate authority. Third respondent alleges in the counter affidavit that petitioner is the father-in-law and has been set up by K. P. Bhaskaran. Learned counsel for the 3rd respondent has stated that petitioner is not the father-in-law, but the uncle of K. P. Bhaskaran. 3. On behalf of the petitioner it is contended that there is no finding entered by the R.T. A. regarding the existence of a particular temporary need, that there is no speaking order and that the absence of a finding is a jurisdictional error. Respondents contended that there is a finding on the existence of permanent need and an invitation for applications for temporary permit and as such no further specific finding on temporary need is necessary and it is a case of unsatisfied public need for a pucca service constituting a particular temporary need as contemplated in S.61(1) (c) of the Motor Vehicles Act (for short the 'Act'). It is open to this court to scan the files to satisfy itself about the existence of relevant material in support of temporary need. It is further contended that petitioner, not having raised any objection at any stage before the R.T.A. is not really a person "aggrieved" and at any rate, he has an effective alternative remedy by way of revision and as such this Court will not interfere under Art.226 of the Constitution. Learned counsel for the petitioner rebuts these arguments and contends that there is no finding regarding existence of permanent need or temporary need, that the decision of the R T. A. to call for applications for temporary permit is a non-statutory proceeding and cannot be a substitute for recording a finding on temporary need at the time of sanction of permit as required by the Statute. 4. In K. M. Thomas v. R. T. A. Kottayam (1960 KLT.1258) this court quashed the order sanctioning a temporary permit on a suo mote application on the ground that there was no finding regarding the present existence of a particular temporary need. In V O. Varkey v. R. T. A. Trichur (1969 KLT. 4. In K. M. Thomas v. R. T. A. Kottayam (1960 KLT.1258) this court quashed the order sanctioning a temporary permit on a suo mote application on the ground that there was no finding regarding the present existence of a particular temporary need. In V O. Varkey v. R. T. A. Trichur (1969 KLT. 699) a Division Bench of this Court had to deal with sanction of a temporary permit after a notification was issued calling for applications for temporary permit and after overruling the objection raised by petitioner in the original petition regarding existence of a temporary need. The order dealt with the merits and claims of each applicant, but did not mention the existence of temporary need and did not contain a finding thereto. This Court questioned the order, observing as follows: "The statement contained in the notification inviting applications can at best be only a tentative conclusion or a prima facie conclusion which would be sufficient to justify the inviting of the applications for permits. This statement can never take the place of the final conclusions that have to be reached by the Authority before sanctioning the permit. The material on the basis of which the prima facie conclusion is reached may be defective or even may be non-existent and at the time of passing the order there must be a revaluation of such material before reaching a final conclusion. Secondly, the persons who are interested in opposing the gram must have the opportunity to satisfy the authority that the prima facie conclusion seen from the notification is not at all sufficient to say that some statements have been made in the notification. The order granting temporary permit proceeded purely on the assumption that there was a temporary need as visualised by the section. The grant of a permit cannot be on such an assumption. We have not been shown any record in the proceedings other than Ext. RI from which it is possible for us to posit that R.T.A. had applied its mind as to the existence or otherwise of the particular need at the time of grant of permit." A brief order sanctioning temporary permit was upheld by a Division Bench of this Court in M. V. Joseph v. Senapathi and others (1970 KLT. RI from which it is possible for us to posit that R.T.A. had applied its mind as to the existence or otherwise of the particular need at the time of grant of permit." A brief order sanctioning temporary permit was upheld by a Division Bench of this Court in M. V. Joseph v. Senapathi and others (1970 KLT. 1102) because the order showed that the R. T. A. had applied its mind on the existence or otherwise of particular temporary need and had come to a finding and the finding was supported by relevant material. This was a case of suo mote application which was objected to by existing operators. In P. T. Govindan . R.T.A, Cannanore (1972 KLT. 242) this Court had to deal with an order sanctioning temporary permit on a suo mote application regarding which no objection bad been raised before the R.T A. The order did not contain a specific finding on the existence of a temporary need, though it stated that the permit was granted to "meet the present rush of traffic". It was held that to refer to "present rush of traffic" was not to refer to a particular temporary need. The order was set aside. Subramonian Poti, J. (as he then was) pointed out: "Time and again this court had occasion to tell the Regional Transport Authorities that they have a duty to pass speaking orders when issuing temporary permits under S.62." In the decision in Managing Partner, Deccan Travels v. Malabar Motor Cooperative Society Limited (1973 KLT. 734) this Court considered the validity of the sanction of a temporary permit on an "invited application" after notification of temporary need. Existence of particular temporary need was not challenged before the R.T.A The unsuccessful rival challenged the order in appeal and succeeded there. The appellant had not specified the particular need in column 4 of his application or the covering letter; that was because the application was made in response to a notification and an invitation. V. Balakrishna Eradi J. (as he then was) distinguished the decision of the Supreme Court in A. P. State Road Transport Corporation v. Venkatarama Reddy (1970(1) S.C.W.R. 617) on the ground that in that case the application was not in response to an invitation, but was a suo mote application and hence mention of the particular temporary need in the application was mandatory. The ratio of the Supreme Court decision did not apply to the Deccan Travels' Case because the application was in response to an invitation and the invitation could obviously be "only for the purpose of satisfying a particular temporary need considered by the R T.A. to exist" when it called for applications. 5. It is not clear from the judgment in Thozhilali Bus Service, Chalakudy v. Secretary, R.T A. Trichur and others (AIR. 1974 Kerala 188) if the order of the R.T.A. granting a temporary permit contained a finding on the existence of a particular temporary need. All the applications were suo motu; there was no notification calling for applications. Vadakkel, J. scanned the file and was satisfied that the application and the report of the Motor Vehicle Inspector contained sufficient materials to prove the particular temporary need which had not been objected to before the R.T.A. Vadakkel, J. also stressed the need for R.T. As to pass speaking order in Balaji Motors, Trichur v. R T. A. (1976 KLT 13). In this case the impugned orders did not advert to the material available in the file, but contained findings regarding existence of a temporary need. The applications were not responsive to notification and were suo motu. But there were objections to grant of permits Vadakkel, J. examined the file and held that the factual existence of the need had not been made out and quashed the order. The case in A.C. Louis v. R.T A. Kottayam (1977 KLT. 241) dealt with temporary permit granted overruling objections of existing operators. The judgment does not show that application was in response to a notification. Subramonian Poti, J. (as he then was) observed that it is necessary that R.T.A should primarily apply its mind as to which of sub-clauses of S.62(1) would apply to a given case before granting a permit. That alone will enable it to consider the question of temporary permits properly. The minimum required is a positive finding of a temporary need and the statement of reasons which support the finding. That alone will enable it to consider the question of temporary permits properly. The minimum required is a positive finding of a temporary need and the statement of reasons which support the finding. In O. P. No. 4448 of 1973, Vadakkel, J. quashed the sanction of a temporary permit by the R.T.A. on the ground that the order was not a speaking order, that the R.T.A. did not apply its mind and exercise power vested in it properly and that it did not consider any particular need for grant of a temporary permit. The judgment of this Court does not show that there was a notification catling for applications. In O.P. Nos. 876 of 1975 and 983 of 1975, Chandrasekhara Menon J. quashed a temporary permit issued on a suo motu application on the ground that there was no finding regarding the existence of temporary need and no reason also mentioned in the order of the R.T.A On a similar ground a similar stand was taken by this Court in O.P. No. 4541 of 1981 and the appeal filed in W.A. No. 494 of 198! was dismissed at the admission stage. See also Surendranathan v. R T A, Palghat & others (1975 KLT. SN Page 36) and Bahuleyan v. R.T.A Alleppey (1977 KLT. SN. Page 6). 6. A review of the above decisions shows that all those cases dealt with either cases of suo mote applications, with or without objections or cases of objected applications in response to notification and invitation. None of them dealt with a case of a "responsive" or "invited" (as opposed to "suo mote") application where no objection had been raised before the R.T.A. regarding the very existence of a temporary need justifying the grant of a permit. According to learned counsel for the petitioner, there is no difference, statutorily speaking, between "suo mote" applications and "responsive" applications or cases where objections are raised regarding the existence of a temporary need and cases where no such objections are raised. Learned counsel argued that in every case, the order sanctioning a temporary permit must contain a specific finding regarding the existence of the jurisdictional fact, namely temporary need, and the reasons based on relevant materials should be given in support of the finding and the failure to record a finding or give reasons must result in the order being vacated. Learned counsel argued that in every case, the order sanctioning a temporary permit must contain a specific finding regarding the existence of the jurisdictional fact, namely temporary need, and the reasons based on relevant materials should be given in support of the finding and the failure to record a finding or give reasons must result in the order being vacated. This, according to learned counsel, would apply even to "responsive"' applications which are not objected to before the R.T.A. because the finding at the earlier stage of issuing notification and calling for invitations is not contemplated by the statute and is an extra-statutory finding and is no finding in the eye of law. 7. S.62(1) of the Act deals with grant of temporary permits. Under this provision, the R.T.A. may grant temporary permits for a period not exceeding four months, to authorise the use of transport vehicles temporarily in the cases contemplated in clauses (a) to (d); that is. (a) for conveyance of passengers on special occasions such as to and from fairs; religious gatherings, etc., (b) for the purpose of seasonal business etc., (c) to meet a particular temporary need, or (d) pending decision on an application for renewal of permit. However, no temporary permit can be granted pending decision on an application for grant of a new permit. Power under S.62 can be exercised without following the procedure in S.57 The other provisions in S.62 are not relevant for our purpose. S.57 lays down a time limit for submitting applications for permits, that is at least within six weeks before the date on which it is desired that the permit shall take effect or if the R.T.A. appoints date for the receipt of applications, on such date. The applications submitted are to be made available for inspection at the office. R.T.A shall publish the applications or substance thereof in the prescribed manner together with a notice of the date before which representations in connection thereof may be submitted, the date being not less than 30 days from such publication and date and time and the place at which the applications and any representation received will be considered. If representation is made R.T.A. shall dispose of the applications at a public hearing at which the applicant and the objector shall have an opportunity of being heard. If application is refused, he shall be given in writing the reasons thereof. If representation is made R.T.A. shall dispose of the applications at a public hearing at which the applicant and the objector shall have an opportunity of being heard. If application is refused, he shall be given in writing the reasons thereof. S.47 explains who are entitled to make representations, that is, existing operators along or near the proposed route, associations representing persons interested in the provision of road transport recognised in that behalf by the State Government or by the local authority or public authority. 8. S.62 does not contemplate any notification calling for applications for temporary permits. But, S.57 contemplates such an invitation in regard to applications for permits. Naturally, the R. T. A. will not decide to call for applications unless it is tentatively or prima facie satisfied about the need for sanctioning permit for running bus service along the particular route. It the decision relates to pucca permits, the R T. A. will have to be so satisfied regarding the existence of a permanent need within the meaning of the relevant statutory provision. In the case of grant of pucca permit, it is mandatory that the R. T. A. should follow the procedure prescribed in S 57. However, in cases of temporary permits governed by S.62, the procedure under S.57 is not mandatory. S.62 says "R. T. A. may, without following the procedure in S 57, grant permits " This is only an enabling provision, enabling the R. T. A. to dispense with any one or more of the particular procedural mandates of S.57. In regard to temporary permits, the R. T. A. may or may not invite applications or may or may not fix the particular time limit prescribed in S.57, or may or may not publish notice of the particular duration contemplated in S.57. It is left to the option of the R. T. A. to do so or not to do so. The R. T. A is enabled to dispense with this procedure; even if it so dispenses, the proceeding of the R T. A will nevertheless be valid. If it does not dispense with any particular procedure which could have been dispensed with, and follows the procedure to any extent the proceeding does not become extra-statutory or non-statutory; the proceedings are statutory and are entitled to due weight in the eye of law. If it does not dispense with any particular procedure which could have been dispensed with, and follows the procedure to any extent the proceeding does not become extra-statutory or non-statutory; the proceedings are statutory and are entitled to due weight in the eye of law. Inspite of the provision in S.62 enabling the R T. A. to dispense with procedure laid down in S.57, it is quite in order for the R. T. A. to follow to any extent, such dispensable procedure. It is open to the R. T. A. to issue a notification regarding a temporary need and call for applications for temporary permits for the purpose of exercising power under S.62 If it does so, the notification, the invitation and the decision or finding of the R.T. A. forming the basis of the notification or finding regarding the factual existence of conditions attracting operation of sub-section (1) of S.62 are all statutory in character and have due weight as such in the eye of law. The conclusion at that stage is no doubt a tentative conclusion or prima facie conclusion which would be sufficient to justify the inviting of applications It does not take the place of the final conclusion that has to be arrived at by the R.T.A. before sanctioning the temporary permit. That is because the prima facie conclusion may have been based on defective or non-existent materials and hence a revaluation is necessary at the later stage and interested persons must have an opportunity to satisfy the R T.A that the prima facie conclusion should not be adhered to. (See the observations of the Division Bench in V. O. Varkey's case (1969 KLT.699). It may not be obligatory on the R.T.A to give notice by publication Or otherwise. But as observed by another Division Bench in M. V. Joseph's case (1970 KLT.1102), it is highly desirable to give such notice, wherever possible. In practice notice is given in the form of agenda published in advance in the Notice Board of the R.T. A. or by other means. If interested parties come to know of the matter and submit representations challenging the existence of the particular temporary need, etc. it is the duty of the R T.A. to consider the material before it and arrive at a decision on the disputed question. In doing so. If interested parties come to know of the matter and submit representations challenging the existence of the particular temporary need, etc. it is the duty of the R T.A. to consider the material before it and arrive at a decision on the disputed question. In doing so. it is not bound down to its' earlier statement or finding regarding the existence of the relevant need and should arrive at an independent decision. If no interested person appears and submits any representation challenging the existence of a temporary need, there is no reason why the R.T. A. should not act on the decision or finding arrived by it at the earlier stage. In such a case, the sanction of a temporary permit cannot he successfully challenged on the ground that the order granting the permit does not contain a de novo finding on the existence of a particular temporary need etc. or that the order does not give reasons. Certainly it will be open to any aggrieved person to contend before the superior authority that on the earlier occasion there was no finding or application of mind or that no relevant reasons based on materials were given. It will be open to the superior authority to examine those questions and to scan the file for that purpose. None of the decisions referred to earlier go against what I have said here; on the other hand, those decisions and the provisions of S 62 read with S.57 of the Act by necessary implication support the view taken by me in regard to unobjected applications in response to notification and invitation. 9. Statutory authorities are required to follow the mandates of the Statute. It is not every technical breach which will result in the proceedings being quashed. If there is substantial compliance with the mandates, superior courts will, bearing in mind the larger public interest involved in running the transport services, hesitate to intervene, unless it be the rights of affected persons are seriously injured. In considering the order of the R.T. A. passed on an application in response to a notification and invitation and where the existence of the required need is not objected to before the R.T.A., it may not always be sufficient to look only at the order passed. In considering the order of the R.T. A. passed on an application in response to a notification and invitation and where the existence of the required need is not objected to before the R.T.A., it may not always be sufficient to look only at the order passed. Interests of justice would require of the superior court to look at the contents of the agenda and the material found there. The order or the decision has to be read in the light of the agenda. Reading the two together, if this court is satisfied that there has been an application of the mind and a decision arrived at, it may not be justifiable to interfere with the order on the ground of its unsatisfactory brevity or contents. If it is contended that the reasons are not set out in the order or that reasons set out are not relevant or that reasons are not supported by materials, it may be necessary to scan the file to test the correctness of the contention. Where an objection regarding the need has been raised before the R.T. A. the order must disclose the application of mind by the R T. A. regarding the existence of the need and the specific objection raised. This may not arise where no objection has been raised. 10. Let us now turn to the facts of the case. The Parassimkkadavu Vikasana Samithi had moved in the matter detailing the reasons for the new route. There was an enquiry conducted through the concerned Assistant Motor Vehicle Inspector. He reported that there is real necessity for introduction of a bus service in the route Pulloorambara-Parassimkkadavu (Via. Tellicherry, etc.) that the people from the Panchayats enroute visit the temple frequently for worship and hence a direct bus service along the suggested route will be very convenient for the people of those villages and at present there are no buses operating on the period between Pulloorambara to Nellipoyil (enroute). The Kerala State Road Transport Corporation objected to the proposal challenging the pucca need. The agenda of the rneetingon 26-11-1981 mentions the representation of the Samithi, the results of the enquiry and the objection of the Corporation. The R. T. A. accepted the existence of the pucca need and resolved to invite applications for pucca permit and temporary permits. The application of K. P. Bhaskaran was deferred. The agenda of the rneetingon 26-11-1981 mentions the representation of the Samithi, the results of the enquiry and the objection of the Corporation. The R. T. A. accepted the existence of the pucca need and resolved to invite applications for pucca permit and temporary permits. The application of K. P. Bhaskaran was deferred. 3rd respondent applied in response to the invitation. No objections were raised before the R. T. A. regarding the existence of particular temporary need. It was in this context that the R. T. A. took the impugned decision. It is the contention of the respondents that particular temporary need in this case is the unsatisfied public need for a pucca service under S.62 (I) (c) of the Act. 11. Learned counsel have referred to a number of decisions in this connection. (See M.P. State Road Transport Corporation, Bairagarh, Bhopal v. B. P. Upadhyava and others (AIR 1966 SC. 156); Thozhilali Bus Service, Chalakudy v. Secretary, R. T. A. Trichur and others (AIR. 1974 Kerala 188); Balaji Motors v. R. T. A. Trichur (1975 KLT. 602); Louis v. R. T. A Kottayam (1977 KLT. 241) and Govindan v. R. T. A. (1972 KLT. 242)). There may be a public demand for a bus service along a new route and the R. T. A. may on application of its mind regarding relevant considerations and materials decide that there is a need for a pucca or regular service and invite applications. The process of sanctioning pucca permits will naturally take some time as statutory procedure has to be followed. At the same time, if the permanent need is an immediate need, the unsatisfied demand for a pucca service may amount to a particular temporary need, till regular operations are commenced. If, on the other hand, it is a case where in due course a permanent need may develop, there may not be a present or existing temporary need. Permanent need and temporary need need not be antagonistic or mutually exclusive, they may, depending upon the facts and circumstances of a case, co-exist on a particular route. 12. There is no contention urged that at the stage of notification and calling for applications, the R. T. A. did not apply its mind regarding the existence of a present temporary need. R T. A. had decided on the existence of a permanent need on the basis of materials, which are certainly relevant. 12. There is no contention urged that at the stage of notification and calling for applications, the R. T. A. did not apply its mind regarding the existence of a present temporary need. R T. A. had decided on the existence of a permanent need on the basis of materials, which are certainly relevant. It was not a case of a developing permanent need, but one of an existing permanent need. Undoubtedly satisfaction or fulfilment of the need involving cumbersome and dilatory process, would take time. The need was present and pressing. Such an unsatisfied permanent need could certainly create a particular temporary need as contemplated in S.62(1) (c) of the Act. The request of the Samithi and the report of the enquiry officer contain sufficient relevant material to support the conclusion At the stage of sanction of temporary permit, there was no objection by anyone regarding the existence of the particular temporary need. The question of granting temporary permit was taken only after the earlier notification and invitation for applications. In these circumstances, that the impugned order does not, in so many words, disclose a finding or reasons is not a ground to set aside the order. 13. In this view, I do not propose to consider the objection raised by the respondents that the petitioner is not an "aggrieved" person and has an effective alternative remedy by way of revision and therefore he cannot get any relief under Art.226 of the Constitution of India. This original petition is dismissed, but without costs. Issue carbon copies of this judgment to the learned counsels appearing on both sides on usual terms. Dismissed.