Research › Browse › Judgment

Karnataka High Court · body

1989 DIGILAW 244 (KAR)

PERCY PINTO v. R. T. A. D. K. , MANGALORE

1989-07-19

H.G.BALAKRISHNA

body1989
H. G. BALAKRISHNA, J. ( 1 ) THE petitioner in W. P. 15765/1988 is aggrieved by the impugned common Judgement passed by the State Transport Appellate Tribunal, Bangalore, in Appeals Nos. 7 and 118/86 dated 29-10-1988 under Annexure-H and seeking restoration of the order of selection made by the R. T. A. Dakshina Kannada, Mangalore, in Sub. No. 327/85-86 dated 25-9-1985 - Annexure-A. ( 2 ) THE point for consideration is whether the Resolution passed by the R. T. A. , Dakshina Kannada, Mangalore, in Sub. No. 327/ 85-86 on 25-9-1985 selecting the petitioner for grant of permit should be restored in the light of new provisions of Motor Vehicles Act, 1988 in the background of the repeal of the Act that was prevalent when the said Resolution was passed. ( 3 ) IT is necessary to make reference to some of the new provisions dealing with the situation under the Motor Vehicles Act, 1988. S. 80 of the Motor Vehicles Act, 1988 (hereinafter called as the 'act') reads as follows:"80 : Procedure in Applying for and Granting Permits- (1) An application for a permit of any kind may be made at any time. (2) A regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act: provided that the Regional Transport Authority may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a Notification in the Official Gazette under Cl. (a) of sub-sec. (3) of S. 71 or of contract carriages as fixed and specified in a Notification in the Official Gazette under Cl. (d) of sub-sec. (3) of S. 74 provided further that where a Regional Transport Authority refuses an application for the grant of a permit of any kind under this Act, it shall give to the appellant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter. "it is thus seen that liberty is given to the applicant to make an application for grant of permit of any kind at any time and that the Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act. With. "it is thus seen that liberty is given to the applicant to make an application for grant of permit of any kind at any time and that the Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act. With. the introduction of this provision of law in the Act there is a substantial change in the situation that prevailed earlier under the provisions of the repealed act i. e. , Motor Vehicles Act, 1939. The field is left wide open for free competition among the applicants for grant of permit. The limitation for the grant of permit is to be found in the first proviso to sub-sec. (2) of S. 80 and the second proviso envisages the assignment of reasons in the event of refusal. In the instant case, the application for grant of permit made under the provisions of the repealed Act, by the petitioner was duly considered by the Regional Transport Authority along with the applications filed by others and a Resolution was passed selecting the petitioner for grant of permit. The writ petition arose in the circumstances that the rival applicants who are two in number contested selection of the petitioner for the permit. Obviously, such a situation would not arise if the provisions of the Motor Vehicles Act, 1988 are to be applied and if the applications of all the three contending applicants had been filed under the provisions of the new Act. Even today if the rival applicants make a fresh application for grant of permit the Regional Transport Authority is bound to consider their applications irrespective of the nature of the application and the time of the application and it is not open to the Regional Transport Authority to ordinarily refuse to grant the permit to each of them. This of course is subject to the first proviso which imposes limitation on the number of vehicles. In these circumstances, since the new Act has already come into force, it would not be proper and advisable to pin down the petitioner and the rival applicants to the provisions of the repealed Act for competition in the matter of selection of permit holder. In these circumstances, since the new Act has already come into force, it would not be proper and advisable to pin down the petitioner and the rival applicants to the provisions of the repealed Act for competition in the matter of selection of permit holder. With the advent of the new Act (Motor Vehicles Act, 1988) and the substantially changed provisions in identical situation, it would be necessary to take the view that would be warranted had the application been filed under the provisions of the new Act. ( 4 ) AT this juncture, it is necessary to make a reference to Writ Petition No. 16461/1988 wherein the petitioner was unlucky and could not succeed before any of the authorities in securing a permit. Being aggrieved by the impugned orders of the Regional Transport Authority as well as the Tribunal, the petitioner therein approached this Court for necessary relief contending that the petitioner is the most ideal operator and he deserves to be selected as the permit holder among the three rival claimants. In the case of the petitioner in W. P. No. 16461/88 the position appears to be slightly different from the position of the other rival claimants. Respondent 4 in Writ Petition No. 15765/ 1988 and respondent 3 in Writ Petition No. 16461/1988 being one and same person is the recipient of a permit at the hands of the Tribunal and the situation in so far as this respondent is concerned is analogous to that of the petitioner in Writ Petition No. 15765/ 1988. The legal position appears to be the same in so far as the petitioner in Writ Petition No. 15765 of 1988 and respondent 4 in the said writ petition is concerned. However, in the case of the petitioner in W. P. No. 16461 / 1988 it cannot be said that he would go without a legal remedy since the provisions of the Motor Vehicles Act, 1988 come to his aid. The question is at what stage? This petitioner is entitled to make an application under S. 71 read with S. 80 of the Motor Vehicles Act, 1988. The question is at what stage? This petitioner is entitled to make an application under S. 71 read with S. 80 of the Motor Vehicles Act, 1988. Therefore, the petitioner could make an application for grant of permit under the said provision or this Court could issue a direction to the Regional Transport Authority to consider the application of the petitioner in the light of the new provisions of Motor Vehicles Act, 1988 under S. 71 read with S. 80 without the need to make a fresh application in that behalf. I think the latter proposition would be more just and reasonable since the new Act does not impede such a consideration and further the time-consuming process of making a fresh application and the procedure to be followed thereafter could be avoided by resorting to a direction from this Court as mentioned earlier. ( 5 ) THE scheme of the new Act aims at the liberalisation of grant of permits and warrants liberal interpretation of provisions which depart from the rigours and rigidity of the repealed Act. With justification it may be said in the context that it is the spirit and not ,the form of law that keeps justice alive. ( 6 ) IT is apt to quote Justice Holmes in the context:"the principle of precedent was the outcome of a quest for probabilities. Principles and precedents thus generated, carry throughout their lives the birth-marks of their origin. They are in truth, provisional hypothesis born in doubt and travail, expressing the adjustment which commended itself at the moment between competing possibilities. "equally relevant are the observations of Cardozo:"the 'meaning of any rule could not be confined within the words in which it was originally cast; its purpose, not its form, was the principle basis for judgment. " ( 7 ) IN so far as Writ Petition No. 15765/88 is concerned, it would be just and proper to allow the writ petition to the extent that the Resolution passed by the Regional Transport Authority on 25-9-1985 granting a permit to the petitioner is confirmed without prejudice to the right of respondent 4 to the benefit of a permit. By the confirmation of the said Resolution, it is made clear that respondent 4 will not be deprived of his permit to operate his motor vehicle. By the confirmation of the said Resolution, it is made clear that respondent 4 will not be deprived of his permit to operate his motor vehicle. ( 8 ) IN the case of the petitioner in Writ Petition No. 14661/88, I direct the Regional Transport Authority, Dakshina Kannada, Mangalore, to consider the existing application of the petitioner for grant of permit in the light of the provisions of S. 71 read with S. 80 of the Motor Vehicles Act, 1988. The spirit of S. 80 of the Motor Vehicles Act, 1988 which provides for grant of permit of any kind at any time ought to be liberally construed while considering the case of the petitioner in Writ Petition No. 16461/88. As already observed, the new Act seems to extend liberal treatment to the applicants and has paved the way for free and fair competition among the Motor Vehicle operators. The compulsion of proof of need, limitation on the number of permits to be issued, and the friction of competing interest which the provisions of the repealed Act had generated are not to be found in the new provisions of the Motor Vehicles Act, 1988. It may be observed that the Regional Transport Authority is not tied down by rigid consideration in the matter of grant of permit and therefore, the petitioner in Writ Petition No. 16461/88 could not be placed in an unfavourable situation. ( 9 ) THE application for grant of permit of the petitioner in Writ Petition No. 16461/88 as provided under the Rules has to be disposed of within 30 days from the date of receipt of a copy of his order and secondly in so far as the timings are concerned, the petitioner in Writ Petition No. 15765/88 and respondent 4 therein are permitted to operate their vehicles on the basis of existing timings and after application of the petitioner in Writ Petition No. 16461/88 is disposed of, the overall timings will have to be reconsidered and reassigned by the Secretary Regional Transport Authority, in accordance with law. Order accordingly. --- *** --- .