P. M. Shamsudeen v. The R T A Alleppey — 1989 DIGILAW 130 (KER)

JUDGMENT K.S. Paripoornan, J. 1. The petitioner is a bus operator. The petitioner, the 4th respondent and another operator were the applicants for the issue of a temporary permit for four months in the route Chengannur - Manavelikkadavu. The petitioner and the 4th respondent alone pressed their applications. The 1st respondent, Regional Transport Authority, granted the permit to the petitioner, applicant No. 1, by order dated 16-2-1987, Ext. P1. In appeal by the 4th respondent herein, applicant No 2, Ext. P1 was set aside by the 3rd respondent, the State Transport Appellate Tribunal, by order dated 9-5-1988, evidenced by Ext. P4. The 3rd respondent directed that if the permit has not expired, the 4th respondent will be issued the permit for the unexpired period. In this O. P. the attack is against Ext. P4, the order passed in appeal by the 3rd respondent. 2. It is common ground that in pursuance to Ext. P1, a temporary permit was granted to the petitioner on 28-12-1987 for a period of 4 months The appeal was heard by the 3rd respondent on 22-4-1988, but the order was rendered on 9-5-1988. On the day Ext. P4 was rendered the period for which the permit was granted to the petitioner had expired. 3. I heard counsel on both sides, and also learned Government Pleader. Counsel for the petitioner attacked Ext. P4 on four grounds. They are: (1) The 3rd respondent, State Transport Appellate Tribunal had no jurisdiction to set aside Ext. P1 order rendered by the 1st respondent by Ext. P4 proceedings, since the period for which the permit was granted by the 1st respondent had expired on 28-4-1988. The, older of the R. T. A. had lapsed or spent itself by efflux of time. The legality or regularity of Ext. P1, was only on an academic nature at the time when the appeal was disposed of. (2) Even if the 3rd respondent had power or jurisdiction to set aside Ext. P1, the jurisdiction should not have been exercised in this case. Pending the appeal the petitioner was allowed to operate the vehicle and so the petitioner should not be prejudiced by setting aside Ext. P1 order. (3) The 3rd respondent (Tribunal) did not apply its mind in passing Ext. P4 order. The permit granted had expired on 28-4-1988 Even so, in Ext. Pending the appeal the petitioner was allowed to operate the vehicle and so the petitioner should not be prejudiced by setting aside Ext. P1 order. (3) The 3rd respondent (Tribunal) did not apply its mind in passing Ext. P4 order. The permit granted had expired on 28-4-1988 Even so, in Ext. P4 order dated 9-5-1988, the 3rd respondent Tribunal had stated that if the period of the permit has not expired, the 4th respondent will be issued permit for the unexpired period. This shows non application of the mind. (4) The 4th respondent did not produce the tax clearance certificate as enjoined in R.177A(3B) of the Motor Vehicles Rules. This is fatal. The 4th respondent's application or objection could not be considered at all. 4. It is common ground that in granting the temporary permit to the petitioner, the 1st respondent did not consider the case of the 4th respondent at all. The 1st respondent placed reliance on an earlier order dated 16-9-1987 to reject the claim or plea of the 4th respondent. Equally, the claim or plea of the petitioner was not considered in detail on merits. In Ext. P4, the 4th respondent adverted to the above aspects and found Ext. P1, passed by the 1st respondent clearly erroneous and illegal The 4th respondent also considered the rival claims of the petitioner and the 4th respondent on the merits. The Tribunal held the 4th respondent, a new entrant, has operational experience in the route, has office and residence in the route, has a later model vehicle with larger number of seats and is also a holder of a heavy motor vehicle licence with badge. It was also noticed that the 4th respondent is an Exserviceman. As against this, the Tribunal held that the residence of the petitioner is away from the route, that his vehicle was registered before the vehicle of the 4th respondent was registered, the seating capacity of the petitioner's vehicle was lesser by one seat and that the petitioner had no driving licence. Briefly stated, the 4th respondent found that on three counts, residence, later model vehicle with larger seating capacity and HPV driving licence, the 4th respondent is better qualified. He is also an Exserviceman. Therefore, he is entitled to the grant of the permit. Briefly stated, the 4th respondent found that on three counts, residence, later model vehicle with larger seating capacity and HPV driving licence, the 4th respondent is better qualified. He is also an Exserviceman. Therefore, he is entitled to the grant of the permit. Incidently the 4th respondent criticised the manner and method in which the 1st respondent dealt with the matter in passing Ext. P1 Regarding the. plea of non production of the vehicle tax clearance certificate for the "scooter" owned by the 4th respondent, the 3rd respondent found that the registration certificate of the "scooter'' produced showed that there was no arrears of vehicle tax and so no disqualification can be alleged on that score. Ext. P1 was found to be illegal, the 4th respondent was found to possess better qualifications and so Ext. P1 was set aside and the permit was ordered to be issued to the 4th respondent for the unexpired period. 5. In scrutinising the legality of Ext. P4 order, in exercise of the powers under Art.226 of the Constitution of India, this Court should bear in mind the approach highlighted by the Supreme Court in Sri Rama Vilas Service (P) Ltd. v. C. Chandrasekaran ( AIR 1965 SC 107 ) at page 110, Para.9. The Supreme Court held that it will be inappropriate for the High Court to intervene mainly or solely on the ground that all reasons have not been set out in the judgment of the authority and the decision on questions of fact under the Motor Vehicles Act by the quasi judicial tribunal should not be interfered with under Art.226 of the Constitution of India unless the well recognised tests in that behalf are satisfied. I will add that' in examining the legality of can order passed by the Tribunal, this Court should read the order as a whole, to determine whether all aspects have been fairly considered with due care, without taking into account irrelevant factors or failing to take into account relevant factors. But the order of the Tribunal should be viewed as a whole and should not be examined sentence by sentence through a microscope, so as to discover a minor lapse or incautious expression of opinion in some place to be used, as a peg for interference. But the order of the Tribunal should be viewed as a whole and should not be examined sentence by sentence through a microscope, so as to discover a minor lapse or incautious expression of opinion in some place to be used, as a peg for interference. Similar words of caution have been stated in the judgment of M. P. Menon J. in Baburajan v. Kesavan ( 1987 (1) KLT 151 ). The learned judge had stated that so long as the (assessment of the rival qualifications by the Tribunal cannot be said to be arbitrary, mala fide or patently illegal, this Court cannot ordinarily interfere under Act. 226 of the Constitution of India. 6. It does not appear that the petitioner raised the question of jurisdiction of the S. T. A. T. to pass Ext. P4 order on the ground that the period for which the permit was granted has expired. The question of jurisdiction was not raised before the Tribunal. In such circumstances, it is not open to the petitioner to raise the plea regarding want of jurisdiction of the 3rd respondent (Tribunal) for the first time in proceedings under Art.226 of the Constitution of India. See Trivandrum Cooperative District Wholesale Society v. Dy. Registrar of Cooperative Societies ( 1975 KLT 589 ). 7. I will now deal with the various grounds raised assailing Ext. P4, seriatim. Since the question of jurisdiction was not raised before the 3rd respondent, it is not open to the petitioner to raise the said plea for the first time in proceedings under Art.226 of the Constitution of India. Even so, it cannot be said that the declaration regarding the grant of the temporary permit as per Ext. P1 was only academic. Consideration of fresh applications for a temporary permit or pucka permit in future will arise in the route. The qualification obtained in pursuance to Ext. P1 grant may be put forward by the petitioner. Unless Ext. P1 is set aside, rival applicants, like the 4th respondent, will be disabled from putting forward their plea. The appeal when filed and heard was competent. It is not as if the appellant (the 4th respondent) did not want to prosecute the appeal or decide the issue. Under S.64 of the Motor Vehicles Act, the 3rd respondent was bound to decide the appeal since the permit was alive the 28-4-1988. The appeal when filed and heard was competent. It is not as if the appellant (the 4th respondent) did not want to prosecute the appeal or decide the issue. Under S.64 of the Motor Vehicles Act, the 3rd respondent was bound to decide the appeal since the permit was alive the 28-4-1988. In these circumstances, the plea that the 3rd respondent had no jurisdiction to set aside Ext. P1, or there was no necessity to set aside Ext. P1, is a far cry. The appeal had not become infructuous. The question posed in the appeal was not academic. The 3rd respondent was bound to decide the appeal so long as the appellant prosecuted the appeal. The argument to the contrary is without force. The decisions in The Madhya Pradesh State Road Transport Corporation v. B P. Upadhaya, Regional Transport Authority ( AIR 1966 SC 156 ), Para.8, Balakrishna Travels v. R. T. O. Malappuram ( 1982 KLT 752 ) Para.10, judgment of Viswanatha Iyer J in O. P. No. 3434 of 1988, dated 30-6-1988, (paragraph 11) support the above view. 8. The second ground of attack was that on the facts of this case, interference with Ext. P1 was uncalled for, since the petitioner was allowed to operate in the route and by any order passed in the appeal, the petitioner should not be prejudiced. This plea has no substance. The 4th respondent filed the appeal against Ext. P1 within the time allowed by law. Once an appeal is filed, the order appealed against is put in jeopardy. The parties to the appeal are subject to the rights and liabilities flowing from the decision to be rendered by the Appellate Court. The fact that the petitioner was allowed to operate the vehicle during the pendency of the appeal is of no consequence. The operation of the vehicle in pursuance to Ext. P1 was subject to the decision in the appeal. The appellate court was fully seized of the matter. It had all the powers of the original authority. The effect of the decision rendered in the appeal is to substitute or replace the original decision. In this perspective, the plea that Ext. P1 should not have been interfered with, is without substance. 9. Thirdly, it was argued that the 3rd respondent did not apply its mind in rendering Ext. P4 order. The effect of the decision rendered in the appeal is to substitute or replace the original decision. In this perspective, the plea that Ext. P1 should not have been interfered with, is without substance. 9. Thirdly, it was argued that the 3rd respondent did not apply its mind in rendering Ext. P4 order. It should be remembered that the appeal was heard on 22-4-1988. The permit was granted on 28-12-1987. There is no material to show that the Tribunal was told that the permit was granted on 28-12-1987 and that it will expire on 28-4-1988 It does not appear that the Tribunal was appraised of the exact date of the issue of the permit. Even so, the appeal was heard on 22-4-1988. The decision was rendered a few days after the expiry of the permit due to unforeseen circumstances. When viewed retrospectively, the observation of the Tribunal, to the effect "that if the period of the permit has not expired, the 4th respondent will be issued permit for the unexpired period," is of no consequence and effect. The said observation should be taken only in the context and circumstances under which it was made. It should only be ignored By itself, it does not show that the 3rd respondent did not apply his mind. 10. The last plea was that tax clearance certificate was not produced before the 1st respondent as enjoined in R.177A(3B) of the Motor Vehicles Rules. The Tribunal perused the registration certificate of the "scooter" produced before it by, the 4th respondent and noticed that there was no tax arrears for the period till 31-3-1988 and so no disqualification can be imposed on that score. The endorsement in the registration certificate of the scooter itself serves the purpose postulated by R.177A(3B) of the Motor Vehicles Rules. The petitioner's counsel stated that the "tax clearance certificate" regarding arrears of the "scooter" was not produced. The petitioner has no case that the 4th respondent did not produce the R. C, of the "scooter" or that the 4th respondent had any other "vehicle" for which arrears of tax was due on the relevant date. These are very relevant aspects in considering the plea regarding non production of the certificate. R.177A(3B) is only enacted as a rule of evidence, to show that there is no arrears of vehicle tax. These are very relevant aspects in considering the plea regarding non production of the certificate. R.177A(3B) is only enacted as a rule of evidence, to show that there is no arrears of vehicle tax. One of the methods by which it can be proved is by producing the "clearance certificate". Production of a 'certificate' is considered sufficient compliance. But, can it exclude the production of the primary document, which is the basis of the certificate? Certainly not. Production of the certificate is not an exclusive method of proof to show that there are no arrears. The registration certificate of the vehicle is the primary record. If such primary record itself is produced, which will show that there is no arrears of vehicle tax, that should be looked into. It is certainly an alternate method of proof, which will substantially serve the purpose enjoined by R.177A(3B) of the Motor Vehicles Rules. The 3rd respondent (Tribunal), who is generally conversant with the relevant matter, has accepted the entries of the registration certificate of the vehicle, to find that there is no tax arrears. It cannot be said to be unauthorised or unwarranted. There has been substantial compliance of the requirement of R.177A(3B) of the Motor Vehicles Rules. That is sufficient. I do not think a literal or technical compliance or wooden approach to R.177A(3B) is called for. The purpose for which the rule is made should be borne in mind. It does not appear that the production of the registration certificate of the 'scooter' by the 4th respondent was objected to at the time of the appeal, when it was considered by the. Tribunal. In the light of the above facts, I do not think that Ext. P4, appellate order passed by the 3rd respondent, can be said to be infirm for non production of the tax clearance certificate by the 4th respondent. Even if there is any irregularity on this score, it is not serious or grave enough, to call it an illegality warranting the exercise of the discretionary jurisdiction of this Court under Art.226 of the Constitution of India. 11. All the grounds urged, assailing Ext. P4 appellate order, fail. In all the circumstances of the case, I see no reason to interfere. The Original Petition is dismissed. No costs.