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1989 DIGILAW 372 (KER)

Varghese v. R. T. A. Trichur

1989-09-05

SANKARAN NAIR

body1989
Judgment :- 1. Petitioner seeks a writ of mandamus to compel respondents to consider: "(a) an application for a 20 days permit. (b) an application for a four months temporary permit and (c) an application for a regular permit for five years made by him. " The applications are not produced. But, it is submitted that Ext. P3 gives an indication that such applications are pending. The route lies in the jurisdiction of more than one Regional Transport Authority. 2. According to learned counsel for petitioner, the Regional Transport Authority is bound to consider the applications and grant permits if there are no grounds for rejection. Getting counter signature is the responsibility of the applicant, submits counsel. Petitioner would further urge that if counter signature is refused, provision for appeal is provided in S.89 of the Motor Vehicles Act, 1988 and that this is an indication that the duty of the Regional Transport Authority is limited to issuance of a permit and not obtaining concurrence therefor. 3. Learned Government Pleader appearing on notice submits that obtaining concurrence is a pre-requisite for issue of a regular permit. R.171 (2) of the Kerala Motor Vehicles R.1989 is relied on by him to support this view. The rule reads: "The Regional Transport Authority granting a stage carriage permit under sub-rule (1) shall, before granting the permit obtain the concurrence of the Regional Transport Authority or Regional Transport Authorities of the other region or regions concerned". Having regard to the language of R.171(2) it is not possible to assent to the contention that it is not the responsibility of the Regional Transport Authority to seek prior concurrence. It is not merely seeking concurrence, or consultation that is envisioned but obtaining it. Thus concurrence is a precondition to grant. 4. R.170 deals with grant of temporary permits. In cases comprehended by that rule prior concurrence is not necessary. But R.170 governs only cases, covered by S.87 of the Motor Vehicles Act, 1988. S.87(1)(a) to (d) deals with enumerated situations, namely (a) special occasions such as fairs and religious gatherings, (b) seasonal business (c) particular temporary need. (d) a situation where applications for renewal of permit are pending. It is not permissible to stretch S.87, as a cloak over situations that appropriately fall in the compass of S.70. S.87(1)(a) to (d) deals with enumerated situations, namely (a) special occasions such as fairs and religious gatherings, (b) seasonal business (c) particular temporary need. (d) a situation where applications for renewal of permit are pending. It is not permissible to stretch S.87, as a cloak over situations that appropriately fall in the compass of S.70. Veiled attempts are sometimes made to resort to temporary permits, when there is no justification for issue of temporary permits. One cannot do service for the other, nor can the 'need' for a regular permit to the 'need' for a temporary permit. A Division Bench of this court in Achuthan v. Abdul Salam (1989) (1) KLT 83) dealt with the circumstances under which temporary permits can be granted. Such are now found in S.87. 5. Counsel for petitioner relying on the decision in M. Durai Swamy v. Shri. Murugan Bus Service (AIR 1986 S. C. 1980) submitted that granting of concurrence or counter signature is an event to follow the grant. I do not think that the decision is authority for such a proposition. Supreme Court was dealing with a grant already made and subsequently varied. The modalities of counter signature were considered in that context. In the case on hand the situation is one preceding grant. Besides, phraseology of R.163A of the Tamil Nadu Motor Vehicles Rules, considered by the Supreme Court, is different from the phraseology of R.171 of the Kerala Motor Vehicles Rules, 1989. The Tamil Nadu Rules visualise grant without counter signature, followed by communication to the other Regional Transport Authority, while the Kerala Rules postulate concurrence, prior to grant 6. Petitioner is not entitled to get a writ of mandamus to compel the Regional Transport Authority to issue a permit without adhering to the mandatory requirements of R.171(2). There is no public duty in the Regional Transport Authority to grant a permit without concurrence, nor a corresponding public right inhering in the petitioner to get a permit in that manner. The Original petition fails and is dismissed.