T. Mohammed v. Secy RTA Malappuram — 1992 DIGILAW 322 (KER)

JUDGMENT M. Jagannadha Rao, C.J. 1. This Writ Appeal is preferred by Sri. T. Mohammed against the judgment of the learned Single Judge in O. P. No. 5884 of 1992 filed by the fourth respondent writ petitioner, Sri. K. Marakkar. 2. In the Writ Petition, the fourth respondent writ petitioner has stated that he submitted application for grant of a regular permit for operating on the route Kozhikode - Kalikavu (via) Medical College, Karanthur, Kunuamangalam, Mukkam, Areacode, Edavanna, Tiruvali. It is an inter district route falling within the jurisdiction of the Regional Transport Authority Malappuram and Kozhikode, major portion of which falling within the jurisdiction of the former. The fourth respondent further has stated that the Regional Transport Authority, Kozhikode in its meeting held on 4-10-1991 has granted concurrence for introduction of the service. After other statutory formalities were completed, the application of the writ petitioner was placed before the meeting of the Regional Transport Authority on 27-11-1991 and the petitioner appeared before the authority and explained the need for granting a permit At the time of consideration of the application, the writ petitioner was not in possession of any vehicle. He however filed an affidavit before the Regional Transport Authority undertaking that he would produce a 1980 or a later model vehicle within the time contemplated under R.159(2) of the Kerala Motor Vehicles Rules, as per Ext. P2. The grievance of the writ petitioner was that inspite of that the Regional Transport Authority had deferred the issue of permit on the ground that the petitioner has not filed an affidavit undertaking that the vehicle will be produced within 30 days, vide Ext. P3. In that order the Regional Transport Authority stated as follows: "..... The applicant has not produced a ready vehicle or furnished a proper affidavit in the required stamp paper undertaking production of the vehicle within 30 days. Hence the application is deferred". The said order also reproduced the timings proposed by the writ petitioner for the proposed vehicle. P3. In that order the Regional Transport Authority stated as follows: "..... The applicant has not produced a ready vehicle or furnished a proper affidavit in the required stamp paper undertaking production of the vehicle within 30 days. Hence the application is deferred". The said order also reproduced the timings proposed by the writ petitioner for the proposed vehicle. Thereafter, the petitioner states that he procured a vehicle KEF 7990, a 1984 model vehicle to operate on the above route, Contending that for five months there was no meeting of the Regional Transport Authority, and five families are depending upon the vehicle, and the petitioner has to pay monthly instalments to the financing company, the petitioner approached this Court for the issue of a writ of mandamus directing the Secretary, RTA (first respondent in the Writ Petition) to issue a regular permit to the writ petitioner for the above said route as per the timings proposed by the petitioner, which are extracted in Ext. P3, in respect of stage carriage KEF 7990. The writ petitioner also sought a further direction to the Secretary, RTA to issue a regular permit to operate on the above route on the basis of the timings which was referred to in Ext. P3 order. This Writ Petition was filed on 7-5-1992, and came up for admission on the 8th. The learned Single Judge after observing that the Govt. Pleader took notice on behalf of the respondents, passed an order as follows: "The Ist respondent is directed to Issue a regular permit to the petitioner to operate on the route Kozhikode - Kalikavu (via) Medical College, Karanthur, Kannamgalam, Mukkam, Areacode, Edavanna, Tiruvali, on the basis of the timings shown in Ext. P3 in respect of stage carriage KEF 7990 within 10 days from the date of receipt of a copy of this judgment. O. P. is disposed of with the above direction." Thereafter the appellant Sri. T Mohammed, filed the present appeal, and sought leave of this Court by filing a CMP. His contention was that the timings awarded to the writ petitioner without notice to the appellant would affect the running of his bus on the same route. On the basis, we granted leave in the CMP, and had the appeal registered. 3. T Mohammed, filed the present appeal, and sought leave of this Court by filing a CMP. His contention was that the timings awarded to the writ petitioner without notice to the appellant would affect the running of his bus on the same route. On the basis, we granted leave in the CMP, and had the appeal registered. 3. The appellant, in his memorandum of appeal, stated that he is conducting a service on the route Manjeri - Thiruvambady (via) Areacode - Mukkom. He has regular permit for his vehicle KLM 9739. His grievance is that the writ petitioner (fourth respondent) is granted a regular permit on the route Areacode - Kalikavu. He contends that the writ petitioner applied for a regular permit on the route Kozhikode - Kalikavu, and also proposed a set of timings for the new permit, which timings would clash with the appellant's timings. The proposed route of the fourth respondent has a common sector with the appellant in respect of 25 KMs from Areacode - Mukkom. As par the timings allotted to the appellant's stage carriage it is to depart from Areacode at 10. 50 AM, whereas the fourth respondent's stage carriage would now arrive at Areacode at 10.45 A. M. and depart at 10.50 A M. This, according to the appellant, would enable the fourth respondent to reach Areacode ahead of the appellant's service and collect the entire complement of passengers from Areacode to Mukkom. It is further pointed out that on 27-11-1991 when the RTA took up the application of the fourth respondent, the latter did not even have a vehicle and the RTA deferred the decision a view to permitting the writ petitioner to procure a vehicle. This is clear from Ext. P3. The writ petitioner instead of procuring the vehicle, rushed to this Court and filed O. P. No. 5884 of 1992 on a wrong representation that he had a ready vehicle KEF 7990, and produced registration certificate as per Ext. P4. It is stated that as a matter of fact, the said vehicle on the date of filing of the Writ Petition, or on the date of rendering of the judgment by the learned Single Judge, was covered by a valid permit for another route, Annexure A 1, namely, Areacode - Kailkavu, and could not have been used for the present route. The writ petitioner obtained orders from this Court on a misrepresentation of facts. The appellant also objected to the timings granted to the writ petitioner, which would clash with the appellant's timings. It is also pointed out that after the order of the learned Single Judge, the RTA has now issued order of permit in favour of the writ petitioner as per Annexure A2 with fee timings mentioned by the writ petitioner in Ext P3 proceedings. 4. The writ petitioner has filed a counter affidavit and has produced Ext. P6 decision of the RTA, Malappuram, at its meeting held on 2-6-1992 23-6-1992 and 1-8-1992 as per item No. 7. In Ext. P6, it is stated, after referring to the timings mentioned is Ext. P3, as follows: "Heard applicant. No objections. The permit has already been granted as per orders of the Hon. High Court. This is confirmed subject to settlement of time clash if any by the Sy. RTA and subject to modification of timings on account of opening of the new bus stand at Malappuram, This is granted on the condition that the applicant will not curtail any portion of the route or apply for another route curtailing/varying any portion of this route. The permit will stand automatically cancelled as and when the vehicle causes an accident. Sd/- Chairman, RTA, Malappuram." 5. Learned counsel for the respondent writ petitioner contended that while the appellant is entitled to leave in so far as the timings are concerned he should not be permitted to question the grant of permit by the RTA to him in view of the liberalised provisions of the Motor Vehicles Act, 1988 and also the judgment of the Supreme Court in Mithilesh Garg v. Union of India, AIR 1992 SC 443 , which has since been followed by this Court in Secretary C. T. R. B. T. Coop. Society v. Mathew Job, 1992 (1) KLT 297 , and also the judgment of the Andhra Pradesh High Court la Secretary, R. T. A., Guntur v. E. Rama Rao, AIR 1991 AP 11 . It is contended that the appellant cannot be said to be aggrieved by the grant of permit to the writ petitioner, and to that extend, he cannot be allowed to appeal. It is contended that the appellant cannot be said to be aggrieved by the grant of permit to the writ petitioner, and to that extend, he cannot be allowed to appeal. Reference in this connection is also made to the decision of this Court in Girija Devi v. Mathew, 1991 (1) KLT 353 , which was followed in Mathew job's case (supra). 6. The following points arise for consideration: (1) Whether merely because a rival operator is not entitled to file objections or seek for being heard in connection with the application for grant of a permit to another operator under S.71, 72 and 80 of the new Motor Vehicles Act, 1988, High Court could issue a writ of mandamus for grant of a regular permit or whether the court could direct the RTA to consider the application for grant of permit? (2) whether the appellant, who it aggrieved by the timings issued to the writ petitioner pursuant to the order of the learned single Judge now under appeal, can be said to be an aggrieved person atleast insofar as the timings granted to the writ petitioner are concerned? (3) whether on the facts of the case, the order of the learned single Judge is to be confirmed Insofar as it directed permit to be granted to the will petitioner, and whether there ate any other circumstances brought to the notice of this Court, such as misrepresentation, etc., on the part of the writ petitioner, which require the order of the learned single Judge to be set aside ? (4) what is the relief to be granted ? 7. Point No 1: - It is true that under the Motor Vehicles Act, 1988 a rival operator is not now entitled to file any objections in respect of an application filed by another applicant for grant of permit. It is also true that the rival operator is not entitled to any hearing. It is also true that the provision for the grant of permit have been liberalised. This is dear from the decision of the Supreme Court in Mithilesh Garg's case (supra), as well as the decision of this Court in Secretary, CTRBT Coop. It is also true that the rival operator is not entitled to any hearing. It is also true that the provision for the grant of permit have been liberalised. This is dear from the decision of the Supreme Court in Mithilesh Garg's case (supra), as well as the decision of this Court in Secretary, CTRBT Coop. Society v. Mathew Job, 1992 (1) KLT 297 , End in Girija Devi's case, 1991 (1) KLT 353 , and also the decision of the Andhra Pradesh High Court in Secretary, RTA, Guntur v. E. Rama Rao, AIR 1991 AP 11 . But that, in our opinion, does not mean that the RTA is performing a purely ministerial function while granting permits Under the Act, the RTA is still exercising quasi judicial functions. This is clear from sub-s.(2) of S.80 of the new act which reads as follows : "80(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 at fixed and fixed in a notification in the Official Gazette under clause (a) of sub-s.(3) of S.71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-s.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 applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter." Further S.71 of the Act which deals with procedure of RTA in considering application for stage carriage permit reads as follows-: "71(1). A Regional Transport Authority shall, while considering an application for a stage carriage permit, having regard to the objects of this Act: Provided that such permit for a route of fifty kilometers to less shall be granted only to an individual or a State transport undertaking. A Regional Transport Authority shall, while considering an application for a stage carriage permit, having regard to the objects of this Act: Provided that such permit for a route of fifty kilometers to less shall be granted only to an individual or a State transport undertaking. (2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened; Provided that before such refusal an opportunity shall be given to the applicant to amend the time table so as to conform to the said provisions. (3)(a) The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs. ......................................... (4) A Regional Transport Authority shall not grant more than five stage carriage permits to any individual or more than ten stage carriage permits to any company (not being a State transport undertaking) (5) In computing the number of permits to be granted under sub-s.(4), the permits held by an applicant in the name of any other person, and the permits held by any company of which such applicant is a director shall also be taken into account." S.72 which deals with grant of stage carriage permits is also relevant in this context. It reads as follows: "72(1). Subject to the provisions of S.71, a Regional Transport Authority may, on an application made to it under S.70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: Provided that no such permit shall be granted in respect of any route or area not specified in the application. ............................................ ............................................ " From the aforesaid provisions it is clear that while the procedure has been liberalised for grant of permits and the rival operators are excluded from objection and from hearing, it is not as if the RTA is bound to grant permit, whenever it is prayed for even without taking into consideration the various factors mentioned in S.71, 72 and 80(2) of the Act. The above said sections still require that certain factors have to be considered by the RTA. Further, under S.72 it will be for the RTA to grant permit in accordance with the application or with such modifications as it deems fit or refuse to grant such permit. In other words, the RTA still performs quasi judicial functions and has to pass orders after considering the various factors mentioned in S.71, 72 and 80(2), notwithstanding the fact that the rival operator does not come into the picture. 8. This does not, however, mean that the RTA can reject applications arbitrarily or that it can resort to the pre-1988 situation. What we want to say is that the procedure is liberalised but, even so, the RTA functions as a quasi judicial body and has to consider the factors mentioned in S.71, 72 and 80(2) of the new Act. 9. If that be the position, it must necessarily follow that no operator could approach this Court straightaway for the issue of a writ of mandamus directing the RTA to issue permit, Nor can this Court, in exercise of its power under Art.226 of the Constitution of India, issue a writ of mandamus, directing grant of permit. This court can only direct the RTA to exercise its powers in accordance with the provisions of law, and cannot itself take over the powers and functions of issuing permits. When statutory authorities or quasi judicial authorities constituted by the Legislature do not properly exercise their power or fail to exercise their power, the High Court has to make those authorities or quasi judicial authorities to perform their statutory duties. If the operators approach this Court while the applications are still pending before the RTA, this Court cannot itself apply the relevant provisions and pass final orders directing issue of permits. The proper procedure in such circumstances would be to direct such authorities to perform their functions. If the operators approach this Court while the applications are still pending before the RTA, this Court cannot itself apply the relevant provisions and pass final orders directing issue of permits. The proper procedure in such circumstances would be to direct such authorities to perform their functions. This is well settled from the earlier decision of the Supreme Court in C. C. Revenue Authority v. M. S. Mills, AIR 1950 SC 218 . The question again came up before the Supreme Court in M/s Chingleput Bottlers v. M/s Majestic Bottling Co., AIR 1984 SC 1030 . In that case, liquor licence had to be granted by the competent authority subject to approval of the State Government as per R.7 of the Tamil Nadu Arrack (Manufacture) Rules, 1981. The Commissioner rejected the rival applicant's application for grant of liquor licence under R.7. But the High Court of Madras, while coming to the conclusion that there was error apparent on the face of the record in rejecting one of the applications and quashing the order of the Commissioner, instead of sending it back to the Commissioner, directed that licence should be granted to a particular applicant. The Supreme Court pointed out that the proper thing for the High Court to do was to issue a writ of mandamus to the Commissioner to redetermine the question as to the grant of such privilege. In yet another case in State of U.P. v. Raja Ram Jaiswal, AIR 1985 SC 1108 , the Supreme Court, while dealing with licence to exhibit a cinematograph, observed that the jurisdiction of the High Court "came to an end" upon quashing an order and "the High Court could not then proceed to take over the functions of the licensing authority and direct the licensing authority by a mandamus to grant a licence". We, therefore, hold on Point No. 1 that this Court ought not to have directed issue of permit, but ought to have directed the authority to consider the application of the petitioner in accordance with the provisions of the Act and Rules. Point No. 1 is found accordingly. 10. Point No. 2: - So far as this aspect is concerned, there was no dispute before us even by counsel for the respondent writ petitioner. Point No. 1 is found accordingly. 10. Point No. 2: - So far as this aspect is concerned, there was no dispute before us even by counsel for the respondent writ petitioner. Before we leave this point, one thing must be placed on record as to the manner in which the respondent writ petitioner sought for particular timings proposed by him from this Court. 11. The respondent writ petitioner filed Ext. P3 proceedings of the RTA as a material document and the writ petitioner described the same as follows: "A perusal of Ext. P3 will show that the second respondent (RTA) was convinced the need and deferred the issue of permit for getting the details of the vehicle to operate on the route." Ext. P3, on the other hand, would read as follows: "Heard applicant and objectors. The request is for grant of regular S/C permit on the route Kozhikode - Kalikavu, via. Medical College, Karanthoor, Mukkam, Areacode, Edavanna, Thiruvalv, Wandoor and Vaniyambalam. The applicant has not produced a ready vehicle or furnished a proper affidavit in the required stamp paper undertaking production of the vehicle within 30 days. Hence the application is deferred. Sd/- Chairman & Members." There is nothing in the said proceedings to indicate that the RTA had applied his mind to the provisions of S.71, 72 and 80 of the Act, and decided to grant the permit. The said Ext. P3 order, in the paragraph previous to the paragraph extracted above, referred to the timings 'proposed' by the petitioner. Obviously, the petitioner gave an impression to the learned single Judge that the permit could be directed to be granted on the basis of the timings "mentioned" in Ext. P3, and the learned single Judge thus granted direction to grant permit according to the timings proposed by the writ petitioner. We are of the view that the writ petitioner was not fair to the Court in mentioning the true facts. He should have informed the learned single Judge that the matter of timings was not decided by the authorities concerned and that, in fact, notice is to be given to the other operators who are likely to be aggrieved by these timings. 12. He should have informed the learned single Judge that the matter of timings was not decided by the authorities concerned and that, in fact, notice is to be given to the other operators who are likely to be aggrieved by these timings. 12. Be that as it may, it is now conceded for the fourth respondent writ petitioner that the appellant whose route overlaps with the route prayed for by the petitioner by 25 Kms is an aggrieved party, so far as the timings are concerned. In fact, as per the timings now granted pursuant to the order of the learned single Judge the respondent writ petitioner's bus arrives five minutes earlier at a particular place and the grievance is that the passengers are getting into that bus rather than the bus of the appellant. We, therefore, hold in favour of the appellant that he has a right to object to the timings granted to the writ petitioner, and the matter is remitted to the competent authority for deciding the issue regarding timings. Point No. 2 is found accordingly. 13. Point No. 3: - Learned counsel for the respondent writ petitioner contended that the leave granted to the rival operator, namely, appellant, should be confined only to the question of timings and the appellant is not entitled to object to the grant of permit to the writ petitioner in view of the judgment of the Supreme Court in Mithilesh Garg's case and other cases. There is indeed substance in this contention raised on behalf of the writ petitioner. While we hold, as stated in our decision on Point No. 1, that this Court ought not to have granted penult, but should have remitted the matter to the RTA for considering the writ petitioner's application, at the same time, we would necessarily hold that a person such as the appellant who obtained leave to appeal against the judgment of the learned single Judge could normally confine his appeal to his grievance, namely, one relating to timings. 14. But the appellant has brought to our notice an additional fact, namely, that the respondent writ petitioner obtained directions even for grant of a permit from this Court by clear misrepresentation. 14. But the appellant has brought to our notice an additional fact, namely, that the respondent writ petitioner obtained directions even for grant of a permit from this Court by clear misrepresentation. It is his case that as per Annexure Al permit, the fourth respondent has been using this very vehicle, KEF 7990 with effect from 3-8-1990 on the route Areacode - Kalikavu (via) Edavanna, Thiruvali, Wandoor and Vaniyambalam with extension from Areacode to Othai and Vettilappara. Annexure A1 is the permit granted in favour of the writ petitioner with effect from 20-11-1989 initially for the vehicle, KLM 6618 (1982-Tata), but replaced by KEF 7990 with effect from 3-8-1990 (1984-Tata - S/C 43 in all DCR 14-5-1984). Ext. A1 shows that the validity of the permit is upto 1-7-1995 Ext. A1 further shows that KLM 6618 was permitted to be replaced by KEF 7990 with effect from 3-8-1990, subject to the conditions already attached. The order of the learned single Judge is dated 8-5-1992, pursuant to which the writ petitioner obtained Ext. A 2 permit for the route Kozhikode Kalikavu (via) Medical College, Karanthur, Kunnamangalam, REC, Mukkam, Areacode, Edavanna, Tiruvali and Wandoor as per the timings specified in Ext. P3, and this permit, Annexure A2 is to have validity from 15-5-1992 to 14-5-1997. It was only after getting Annexure A2 permit, pursuant to the order of the learned single Judge dated 8-5-1992 that the writ petitioner has now obtained an endorsement on the original permit, Ext. Al referable to this vehicle, KEF 7990 as follows: "Cancelled and surrendered w.e.f. 15-5-1992." In other words, the statement in the writ petition in Para.2 to the following effect appears to be wrong: "It is submitted that the petitioner has already procured KEF 7990, a 1984 model vehicle to operate on the above route and thereby complied with the directions of the Regional Transport Authority." Only a photocopy of the registration certificate of KEF 7990 was filed in this Court as Ext. P4. But it was nowhere disclosed in the writ petition that that vehicle was operating on a different route as now shown by the appellant as per Annexure A2. 15. P4. But it was nowhere disclosed in the writ petition that that vehicle was operating on a different route as now shown by the appellant as per Annexure A2. 15. In our view though the appellant has locus standi only for the purpose of timings, if he had brought on record certain facts which show that the respondent writ petitioner had obtained an order from this Court by suppression of material fact, this Court cannot ignore the said facts. We, therefore, hold that the impugned order was passed by the learned single Judge on account of suppression of the real facts by the writ petitioner. Point No. 4 is held accordingly. 16. We, therefore, set aside the judgment of the learned single Judge not only in regard to timings - for which there is no contest by the writ petitioner - respondent - but also in regard to the grant of permit. All consequential orders of the RTA passed pursuant to the impugned B judgment of the learned single Judge in favour of the writ petitioner would automatically cease to be operative. The RTA will now consider the application of the writ petitioner for grant of permit expeditiously and preferably in the next meeting in accordance with law. In case permit is granted, it shall hear the appellant or other objectors if any on the question of timings. The Writ Appeal is allowed accordingly.