VENUGOPALAN v. R. T. A. CANNANORE — 1989 DIGILAW 26 (KER)

Judgment :- 1. The petitioner is an existing stage carriage operator on the route Payyannur S.S. Temple Gurukkanmarkavu. It is a medium route. Pursuant to the invitation for applications for grant of regular permit on the route, issued under S.57(2) of the Motor Vehicles Act, 1939 (the Act), the petitioner, respondents 4 and 5 and two others applied. It was stated in the notification that the Secretary to the Regional Transport Authority (RTA) will receive applications submitted within thirty days of publication thereof in the gazette. This notification was published in the Kerala Gazette dated May 20, 1986. The five applications received were notified under S.57(2) of the Act in the Kerala Gazette dated August 26, 1986 calling for representations, if any. Brief particulars of the five applicants were given, and it was noted that the applications of respondents 4 and 5 were belated, having been made on June 20,1986. A copy of this notification is Ext. P1. Petitioner made his representation Ext. P2 pointing out that the applications of respondents 4 and 5 were liable to be eschewed from consideration as belated. Respondents 4 and 5 in their turn made their representations Exts. P3 and P4. The 5th respondent pointed out inter alia that his application was not belated, as the Kerala Gazette dated May 20, 1986 containing the notification Ext. P1 reached the Civil Station at Cannanore only on June 20, 1986, a fact which could be verified with reference to the seal of the Collector's office on the gazette. The 5th respondent had made his application on the very same day. There was therefore no delay. In any case, the delay, if any, was for reasons beyond his control. His application was therefore liable to be accepted and considered on merits. 2. The R.T.A. considered the applications on October 30,1986. One of the applicants did not press his claim; another did not produce the necessary documents. They were left out of consideration. The R.T.A. then rejected the applications of respondents 4 and 5 as belated. Only one application, namely that of the petitioner, survived for consideration. That was also rejected on the ground that the petitioner had not produced the Income Tax and Motor Vehicles Tax Clearance certificates along with his application, but only subsequently. The R.T.A. decided to invite fresh applications, (in their jargon), for "Pucca and T.P.". A copy of these proceedings is Ext. P5. That was also rejected on the ground that the petitioner had not produced the Income Tax and Motor Vehicles Tax Clearance certificates along with his application, but only subsequently. The R.T.A. decided to invite fresh applications, (in their jargon), for "Pucca and T.P.". A copy of these proceedings is Ext. P5. 3. The petitioner as well as respondents 4 and 5 felt aggrieved, and all of them filed appeals. The petitioner was aggrieved because his was the solitary application remaining to be considered. He was fully qualified. He had produced the necessary clearance certificates before the application was considered. Yet, instead of granting the permit to him, the R.T.A. decided to invite applications afresh. 4. Respondents 4 and 5 appealed as their applications were rejected on the ground of delay. Their case was that the period of 30 days for making the application had to be reckoned only from the date on which the relevant gazette became available to the public. The 4th respondent supported his case by producing a certificate dated January 15, 1987 from the Superintendent of Government Press. Trivandrum testifying that the full gazette concerned was despatched from the Government Press, Trivandrum on June 2,1986 and the department released the same on 4/5 June, 1986 to various places. A copy of that certificate is Ext. P6. 5. The State Transport Appellate Tribunal, the third respondent, disposed of the appeals by a common judgment Ext. P7. The Tribunal set aside the order of the R.T.A. and remitted the matter back for fresh consideration/ of the applications of the petitioner and respondents 4 and 5. The Tribunal held that the applications of respondents 4 and 5 were not belated. The period of 30 days prescribed for submitting applications should be computed from the date of release of the concerned gazette from the Government Press. If so, the applications of respondents 4 and 5. were in time. The Tribunal also held that the petitioner's application had been rejected wrongly. He had produced the tax clearance certificates on the date of consideration and that was sufficient in law. In this view, the appeals were allowed and the matter remitted as stated above. The petitioner challenges Ext.P7 in so far as it holds that the applications of respondents 4 and 5 were in time. He had produced the tax clearance certificates on the date of consideration and that was sufficient in law. In this view, the appeals were allowed and the matter remitted as stated above. The petitioner challenges Ext.P7 in so far as it holds that the applications of respondents 4 and 5 were in time. He submits that, after having found that his application was valid and proper, the Tribunal should have granted the permit to him instead of remitting the matter back. 6. The notification under S.57(2) had directed that the applications for permits should be submitted within 30 days of publication of the notification. in the gazette. The question for consideration is what is the terminus aquo for the period of 30 days, whether it is the date which the gazette bears, as contended by the petitioner, or whether it is the date of release of the gazette from the Government Press, or whether it is the date on which it is received at Cannanore where the parties are situate. 7. The last of these dates can straightaway be eliminated from consideration as the starting point cannot be made to depend upon the vagaries of the Post Office and as to where the parties are situate. I am not elaborating on this point, as it is unnecessary for purpose of this case. 8. S.46 of the Act prescribes the particulars which an application for stage carriage should contain. S.47 contains the procedure to be followed by the R. T. A. in considering an application for stage carriage permit and specifies the various matters to be borne in mind on such consideration. S.48 prescribes that the R. T. A. may make the grant of stage carriage permit on an application made under S.46 and authorises it to impose any one or more of the conditions mentioned in its sub-clause (3). S.57 prescribes the procedure to be followed in applying for, and granting, permits. Sub-s. (3) provides the time limit within which an application for a stage carriage permit shall be made. It shall be not less than six weeks before the date on which it is desired that the permit shall take effect, or if the R.T.A. appoints dates for the receipt of such applications, on such dates. No time limit with reference to the date of publication of the notification in the gazette is prescribed. It shall be not less than six weeks before the date on which it is desired that the permit shall take effect, or if the R.T.A. appoints dates for the receipt of such applications, on such dates. No time limit with reference to the date of publication of the notification in the gazette is prescribed. The period is only with reference to the date on which the permit is to take effect. There should be at least six weeks between this date and the date of submission of the application. It is by virtue of this provision that the R.T.A. prescribed the period of 30 days from the date of publication in the gazette as the period within which the applications should be submitted for the route in question. 9. This court has held that a belated application is not liable to be considered. (Abdul Rahiman v. Rani: 1987 (1) KLT 201986 KLJ 1141). The power to fix dates for receipt of applications under S.57 (2) which is the function of the R.T.A. could be delegated to the Secretary under R.161 (b) of the Kerala Motor Vehicles Rules and it is accordingly that the second respondent, namely the Secretary, fixed 30 days from the date of publication in the gazette as the period within which he will receive the applications. It is admitted by all the parties that there are no rules or circulars or departmental instructions regarding the manner in which the notification under S.57 (2) is to be made or published, though R.176 prescribes the mode in which the subsequent notification under S.57 (3) should be published, namely, by publication in the official gazette as well as in the notice board of the R.T.A. It is in this background that the question has to be considered. 10. This court had in R.K.V. Motors and Timbers v. Regional Transport Officer, 1982 KLT 166 (FB), occasion to consider the question as to when a statutory notification issued under the Kerala Motor Vehicles Taxation Act will take effect. The notification in that case was published in the gazette dated September 29, 1975, but the gazette was released to the public, and was available to those affected by it, only on October 14, 1975. The notification in that case was published in the gazette dated September 29, 1975, but the gazette was released to the public, and was available to those affected by it, only on October 14, 1975. The question arose whether it took effect from October 1, 1975 when the parent Act came into force or on October 14,1975 when the gazette became available to the public. It was held that the notification in question could operate only from the latter date. In doing so, this court took note of the decisions in State of Kerala v. P. J. Joseph, AIR 1958 S. C. 296, State of Maharashtra v. Mayer Bans George AIR 1965 S.C. 722, Gracy v. State of Kerala, 1972 KLT 141 and Narayana Reddi v. State of A.P., (1969) 1 Andhra Weekly Reporter 77. It was observed that adequate publicity to those from whom the law expected obedience was a basic requirement of the law itself. This court observed:? "The necessity that the people affected by law should have sufficient knowledge of the law, had been accepted as a basic tenet and inextricable characteristic of law even by legal theoreticians and jurisprudentialists. Adequate publicity to those from whom law expects obedience thereto has been held as a basic requirement of the law itself. The State has an obligation to speak or to make known a rule, so that it could answer the description of law. "The idea that a person may be governed by a law that cannot be known by him because it is not published or promulgated is revolting to judicial conscience and civilised thought. It has with it a strong odour of totalitarianism and of the Gestapo. It is repugnant to the principles of Justice, Freedom, Equality and Fraternity, cherished by all lovers of Democracy and enshrined in our Constitution". It follows that mere making of a subordinate legislation is not sufficient to give validity to it; publication is necessary for bringing it into force or giving validity. S.28 of the Act which confers rule making powers on the Government provides that such rules are to be made by notification in the Gazette. In the instant case, the notification which brought into force the rules was published in the Kerala Gazette Extraordinary No. 573 dated 29-o-1975 and it was released to the public only on 14-10-1975. S.28 of the Act which confers rule making powers on the Government provides that such rules are to be made by notification in the Gazette. In the instant case, the notification which brought into force the rules was published in the Kerala Gazette Extraordinary No. 573 dated 29-o-1975 and it was released to the public only on 14-10-1975. The benefit of exemption from tax could be claimed by an operator by giving intimation within one week after the release of the Gazette containing the publication of the Rules and the Notification." 11. I may also profitably refer to the decision in Gracy v. State of Kerala, 1972 KLT 141 which was approved by the Full Bench. Poti, J. as he then was, put the matter thus at page 144, inter alia observing that publication in the gazette is the usual mode in which State Legislation is notified to the public and under ordinary circumstances that should be taken to be the proper or the normal course. "But this is not the case with subordinate legislation which often issues from the Secretariat of the Government or other offices. The citizen to whom it is directed is not expected to have notice of it automatically so as to call for his obedience to it unless it is accompanied by such publicity as would normally bring it to his notice. It is open to the statute under which such subordinate legislation is made to prescribe the mode in which publication is to be made. In the absence of any such direction in the parent statute such subordinate legislation would become operative only on publication in one or other modes which is being normally resorted to. The publication in the gazette is the usual mode in which such legislation is notified to the public and under ordinary circumstances that should be taken to be the proper or the normal course. 12. Counsel for respondents 4 and 5 laid considerable stress on the decision in Ranjit Singh Bagh Singh v. State of Punjab A.I.R. 1964 Punjab 32 which concerned a notification issued under S.4 of the Land Acquisition Act, 1894, This provision requires objections to be made the proposal for acquisition within 30 days after the issue of the notification. 12. Counsel for respondents 4 and 5 laid considerable stress on the decision in Ranjit Singh Bagh Singh v. State of Punjab A.I.R. 1964 Punjab 32 which concerned a notification issued under S.4 of the Land Acquisition Act, 1894, This provision requires objections to be made the proposal for acquisition within 30 days after the issue of the notification. The question considered was whether the date of issue of the notification was the date of the gazette, or the date on which the gazette was published. The High Court of Punjab held that the notification became effective only after the public came to know of it. In other words, the date of issue was the date of publication. 13. Counsel also referred to the decision of this court in Varghese v, R.T.A., Malappuram,1984 KLT 991, and the decision of the Division Bench, reported sub nom at page 1082 of the same volume affirming it. These decisions concerned the starting point of time for preferring revision under S.64A of the Act, whether it was the date of the order or the date on which the affected party had actual or constructive knowledge thereof. Following various decisions of the Supreme Court, and others, this court held that time started running only when the affected party had actual or constructive knowledge of the order. 14. There are certain cases arising under the Income Tax Act, namely Awasthi v. Inspecting Assistant Commissioner of Income Tax, (1977) 107 ITR 796, Krishna Lal v. Inspecting Assistant Commissioner (1983) 142 ITR 312 and All India Reporter v. Competent Authority (1986) 162 ITR 697, followed in Manu Bharathy Co-operative Housing Society Ltd. v. C.I.T. (1986) 162 ITR 693. These cases arose under S.269D of the Income Tax Act, 1961 which authorised initiation of proceedings for acquisition of property by publication of a notice in the official gazette. The proviso to the section however barred the initiation of such proceedings after the expiration of a period of nine months from the end of the month in which the instrument of transfer in respect of the property was registered. The question arose as to when the proceedings could be stated to have been initiated, whether it was on the date of the gazette containing the notice or whether it was on the date on which the gazette became available to the public, particularly the persons affected. The question arose as to when the proceedings could be stated to have been initiated, whether it was on the date of the gazette containing the notice or whether it was on the date on which the gazette became available to the public, particularly the persons affected. In Awasthi's case, the High Court of Allahabad held that the publication of the notice was complete only when the gazette containing it became available to the public. This decision was followed in the subsequent decisions referred to above. I am referring to these decisions only to indicate the trend of thinking shaping in such matters' It is however unnecessary for me to place reliance on these decisions as I feel, the decisions of this court referred to earlier, are in point. 15. When the R.T.A. is vested with the power to invite applications and to fix the period of time within which the applications for permit should be made, it is meant to be an effective invitation providing a reasonable time to the operators at large to prefer their applications. When there is no provision in the Act, or in the Rules, or any binding circular or instruction, governing the mode of publication of the notification, publication in the gazette, which is the usual mode of publication of Government orders, regulations and notifications should be accepted as the normal and permitted mode. Publicity and communication to those affected is of the very essence of any statutory action. The primary consideration in the matter of grant of a stage carriage permit is the interest of the public generally and it is imperative that the invitation for applications should reach as wide a range as possible. The operators should have the opportunity to come to know of the notification, and to apply. 16. The notification in this case had stated that the period of time for making the application was thirty days from the date of publication. Therefore, unless and until there was an opportunity for the public to be aware of the notification, it could not be said that there was any publication thereof. Or to put it differently, there was publication only when the gazette became available to the public. The gazette became available to the public when it was released from the Government Press. As to when it reached a particular subscriber or any particular office, is immaterial and irrelevant. 17. Or to put it differently, there was publication only when the gazette became available to the public. The gazette became available to the public when it was released from the Government Press. As to when it reached a particular subscriber or any particular office, is immaterial and irrelevant. 17. The Tribunal has rightly held that the date of release of the gazette from the Government Press, Trivandrum was the date from which the period of thirty days had to be computed. The Tribunal has thus proceeded to hold that the applications of respondents 4 and 5 were in time. This decision is correct and does not call for any interference. 18. Counsel for the petitioner however relied on some stray observation in Jagjit Singh v. State of Rajasthan, A. I. R.1968 Rajasthan 24. In that case certain objectors were called for a personal hearing on December 15, 1961 by a notice published interalia in the gazette dated December 4, 1961. This gazette was not available to the public before December 15,1961. The question was whether the objectors had notice of the hearing. In that context, the Division Bench of High Court of Rajasthan noted the argument of counsel that if the gazette was not out of the press, publication in the gazette could not be deemed to be good notice to the public at large, and observed that this argument had 'considerable force'. I do not find anything in this decision supporting the case of the petitioner. On the other hand, this observation of the Bench in effect supports the conclusion which I have reached, namely that the notification in the gazette could be deemed to be published only when the gazette becomes available to the public. 19. If this be the correct approach to the question in issue, the finding of the Tribunal that the applications of respondents 4 and 5 were not belated has to be upheld. If so, the remit for considering the applications on merits is only proper. There is no scope for any interference with the order Ext. P7. No other points were argued before me. The Original Petition is accordingly dismissed. There will be no order as to costs.