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1991 DIGILAW 81 (KER)

Premkumar v. R. T. A. Trichur

1991-02-13

RADHAKRISHNA MENON

body1991
Judgment :- Facts stated in these Original Petitions would show that applications of the petitioners' for regular permits, were rejected by the R.T.A. on the ground of 'diesel crisis' one of the concomitants brought about by the Gulf War. The State Transport Appellate Tribunal before which these orders were challenged, was of the view that the ground stated by the R.T.A to reject the applications, namely 'diesel crisis' is not a legal one and consequently the orders were set aside and the petitions were remanded to the R.T.A. for fresh consideration. That common judgment of the S.T.A.T is under challenge. 2. The question as to whether the ground 'diesel crisis' based on which the R.T.A. rejected the applications, is a legal ground, no more is a moot question in view of the judgment in O.P.No.262/1991 and connected cases. Another incidental question however arises and it is this: Are the aggrieved parties entitled to get an opportunity to explain the circumstances warranting issuance of permits, ignoring the above ground? 3. The answer to this question depends upon the construction of the second proviso to 8.80(2} of The Motor Vehicles Act, 1988, for short The Act. I shall read the proviso now: "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 applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter". The learned counsel representing the petitioners submit that it is not necessary to give an opportunity of being heard in the matter if the reason for the refusal of the application for the grant of the permit is a valid reason. According to them the wordings employed in the proviso particularly those words "refuses an application for the grant of a permit" indicate that if the R.T.A, taking into account the circumstances of the case and the materials placed before it, is of the view that for such and such reason the application cannot be granted, then there is nothing further to be done by the R.T.A. except to write the said reasons in the order rejecting the application. I am not impressed by this argument. It is no doubt true that the proviso is not very happily worded. I am not impressed by this argument. It is no doubt true that the proviso is not very happily worded. The proviso could have been worded in the manner indicated hereunder so that the true intent of this proviso could have been understood without much deliberation. In fact this proviso intents to convey the meaning namely, that if the R.T.A. proposes to refusing application, for the grant of the permit, it shall give to the applicant in writing its reasons for the refusal of the same. Not only that, the applicant shall also be given an opportunity of being heard before the application is finally disposed of. If this view is not accepted the concluding part of the proviso namely "and an opportunity of being heard in the matter" would become otiose. The R.T.A. thus shall not refuse an application for the grant of permit unless it be that it had given to the applicant its reasons for the refusal of the application and an opportunity of being heard in the matter. An order refusing the application for permit, passed in violation of these provisions, is liable to be declared as one passed without the authority of law; in any event, in violation of the principles of natural justice. The reasons based on which, the R.T.A. refuses to grant the permit therefore, must necessarily be made known to the petitioners before the order is passed. Not only that, an opportunity of being heard in the matter ie. a personal hearing in the matter shall also be given to the applicant before the final order is passed. It is relevant in this context to note the content of S.80 particularly sub-section (2) thereof also. It provides that a R.T.A. shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. That means invariably the applications require to be granted. Refusal to grant the permit is only an exception. If the R.T.A. decides to reject the application for permit then the R.T.A„ before the order refusing to grant the application is passed, shall comply with the provisions contained in the proviso. That does not however, mean, that every application requires to be granted. Refusal to grant the permit is only an exception. If the R.T.A. decides to reject the application for permit then the R.T.A„ before the order refusing to grant the application is passed, shall comply with the provisions contained in the proviso. That does not however, mean, that every application requires to be granted. Considered in this background it should be held that the S.T.A.T. was carried away by the expression "at any time" which, according to him, confers plea nary power on the authority concerned to grant the permit whether or not any reasons exist for the refusal of the same. The S.T.A.T. in my view, omitted to take into account the significance of the second proviso to S.80 and the result was the judgment under challenge. The judgment of the Appellate Tribunal therefore, to the said extent, is not sustainable. 4. Finding it difficult to grapple with the above situation the counsel for the contesting respondents contended that the petitioners have no locus stand to challenge these orders. Dilating on this aspect the counsel submits that the petitioners, inasmuch as they have no right, under the new Act, to object to the grant of the permits, cannot be said to be aggrieved persons. That means they have no right to challenge the order granting the permits. This argument at the first blush is attractive but if we go deep into the question it could be appreciated that this argument cannot be taken cognisance of. It is relevant in this context to refer to the provisions contained in Rules 123 and 128 of the Kerala Motor Vehicles Rules. R.123 provides that a Regional Transport Authority may meet once 'a month on such date, time and place as may be fixed by the Chairman, and also on such other necessary occasions as may be determined by the Chairman for the dispatch of business. Adequate notice of such meetings and of the business to be transacted there at shall be given for the information of such persons who, in the opinion of the Regional Transport Authority or of its Secretary, may reasonably have a claim to be permitted to attend the meeting for the purpose of making representations. Adequate notice of such meetings and of the business to be transacted there at shall be given for the information of such persons who, in the opinion of the Regional Transport Authority or of its Secretary, may reasonably have a claim to be permitted to attend the meeting for the purpose of making representations. That means that those persons who, in the opinion of the R.T.A. or of its Secretary may reasonably have a claim 10 be permitted to be attended the meeting for the purpose d I making representations are persons entitled to be heard in the proceedings. Similarly those persons mentioned in R.128 can also be called upon by the authority concerned to participate at the hearing of the application for grantI. issue of permits. Such persons to my mind, have the right to lake the matter before higher authorities. It therefore follows that those persons who come under these rules, are persons aggrieved. In the case on hand, it is clear from the facts available on record, that the petitioners have participated in the proceeding before the Appellate Tribunal. A reference in this connection to the following observations contained in the common judgment is profitable: "In fact Sri. P. Ravindran" who appeared for the additional respondents allowed to be impleaded in some of these appeals has also highlighted the powers of the Appellate Court in matte like this. So far as an appeal before this Tribunal is concerned, it is S.89 which governs the matter" Similar view was expressed by this court as is seen from the following decisions: i. Smt. N. Girija Devi v. K.T. Mathew & Others, 1991 (1) KLT 353 = (1990 (2) KLJ. 881 ii. Joshy Raphel & Others v, R.T.A. & Others, 1991 (1) KLT 288 = (1991 (1) KLJ 165) iii. Judgment in "W.A. 59 of 1991. The contrary view taker, by the Full Bench of the Andhra Pradesh High Con in Secretary, R.T.A. Guntur v. E. Rama Rao (AIR 1991 A.P. 11 (FB)) with respect cannot agree. 5. In the light of the above observations the R.T.A. is bound to recons all applications and while doing so the R.T.A. is bound to discharge its fund consistent with the provisions contained in the second proviso to sub-section (2) of S 6. The Original Petitions therefore are allowed to the extent indicated and the findings of the S.T.A.T. therefore are vacated. The Original Petitions therefore are allowed to the extent indicated and the findings of the S.T.A.T. therefore are vacated. The R.T.A. accordingly is direct consider and dispose of the applications, keeping in view of the observations and find as expeditiously as possible, in any event, within two months from the date of receive I a copy of the judgment. The petitioners also shall be given an opportunity of being before the matters are finally disposed of. Issue Photostat copy on usual terms.