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1993 DIGILAW 391 (KER)

Quilon Dt. M. T. W. Co-op. Society v. R. T. A.

1993-08-17

P.K.BALASUBRAMANYAN

body1993
Judgment :- The petitioner is a Co-operative Society. The petitioner has approached this court praying for the issue of a writ of certiorari to quash the orders Exts. P1 and P3 rejecting the claim of the petitioner for renewal of the permit to it on the route Kundara-Chinnakada for a period of five years from 23-12-1990. The petitioner was conducting the service on the said route on the basis of a regular permit which was valid upto 22-12-1990. When the permit was about to expire the petitioner made an application for renewal. The permit originally held by the petitioner was under the Motor Vehicles Act, 1939. By the time the petitioner applied for renewal, 1939 Act had been replaced by Motor Vehicles Act, 1988. The route in question was of 22 Kms. The first respondent RTA rejected the application in its view that the permit granted under the 1939 Act cannot be renewed under the Act of 1988. It was observed that the applicant had to make an application for a fresh permit under the 1988 Act. On appeal by the petitioner the State Transport Appellate Tribunal, respondent No. 3 herein following the decision reported in K.S. Krishnadas v. R.TA. Palakkad(O.P.1080 of 1990) held that application filed for renewal under the 1988 Act of a permit obtained under the provisions of the 1939 Act is not maintainable. The State Transport Appellate Tribunal also took note of the fact that an appeal was pending against the decision in O.P. No. 1080 of 1990. The State Transport Appellate Tribunal took the view that the fact that an appeal was pending would not enable that authority to ignore the ratio of the decision in O.P. No. 1080 of 1990. It is this view of the State Transport Appellate Tribunal that is challenged by the petitioner in this Original Petition. 2. Respondent No. 4, claiming that he was a rival applicant for permit in this route got himself impleaded in this Original Petition subsequently and has pressed for a hearing of this Original Petition. That was the reason why this Original Petition itself was taken up for hearing with the consent of parties when C.M.P. No. 3868 of 1991 came up for hearing. 3. That was the reason why this Original Petition itself was taken up for hearing with the consent of parties when C.M.P. No. 3868 of 1991 came up for hearing. 3. The learned counsel for the petitioner points out that W.A. No. 34 of 1991 was allowed by a Division Bench of this court to contend that the renewal of a permit issued under the 1939 Motor Vehicles Act is possible under the Motor Vehicles Act, 1988. The said decision is reported in Krishnadas v. STAT Ernakulam (1991 (2) KLT 203). The learned counsel for the petitioner also relied on the decision reported in M/s. gurucharan Singh v. Yashwant Singh (AIR 1992 SC 180) to contend that the rights which the petitioner had under the 1939 Act are preserved by the transitory provision in the 1988 Act and that there is nothing in the 1988 Act to destroy the entitlement of the petitioner for renewal of the permit. It is also pointed out by the learned counsel for the petitioner that when the order Ext. P1 was passed by the first respondent R.T.A. a Co-operative Society could have had only ten permits. It is pointed out that by amending S.71 of the Act the number of permits a Co-operative Society can have has been enhanced to 50 in number. It is submitted that the petitioner society has only 13 or 14 permits and that therefore there was no prohibition in the permit being renewed in terms of S.71 of the Motor Vehicles Act, 1988. 4. The learned counsel for the 4th respondent on the other hand submits that by virtue of the proviso to S.71(1) of the Motor, Vehicles Act, 1988 no permit for a route of 50 Km or less can be granted to a Co-operative Society like the petitioner. According to him therefore the proviso to S.71 of the Act clearly manifests an intention contrary to the one contained in the 1939 Act and that therefore the order of the STAT refusing to renew the permit in favour of the petitioner does not call for any interference at the hands of this court. 5. S.71(1) of the Motor Vehicles Act, 1988 reads as follows: 71. 5. S.71(1) of the Motor Vehicles Act, 1988 reads as follows: 71. Procedure of Regional Transport Authority in considering application for stage carriage permit.-(1) A Regional Transport Authority shall, while considering a application for a stage carriage permit, have regard to the objects of this Act: Provided that such permit for a route of fifty kilometers or less shall be granted only I an individual or a State Transport Undertaking". By virtue of the proviso it is clear that under the Act no permit for a route having 50 Km or less can be granted to an operator who. is not an individual or a State Transport Undertaking. The petitioner is a Co-operative Society and it is not contended before n that the petitioner society would come within the meaning of 'individual' referred toi the proviso to S.71 of the Act. The route in question has only a distance of 22 Km It is therefore clear that if the permit were to be applied for the first time after It enactment of the Motor Vehicles Act, 1988, the petitioner would not be entitled to permit on this route. 6. The question then is whether notwithstanding this clear intention expressed by the 1988 Act, the right which the petitioner had for renewal under the 1939 Act can said to continue. As I read it the decision in 1991 (2) KLT 203 docs not support petitioner's claim for renewal. In fact in the said decision itself their Lordships have noticed that permits granted validly under the 1939 Act for periods beyond five years would cease to be operative on the coming into force of the new Act as such grants are clearly inconsistent with the provisions of the 1988 Act. This would really indicate that the right to renewal which might be preserved by the General Clauses Act and by the transitory provision contained in S.217 of the 1988 Act cannot extend to a right which is clearly inconsistent with the provisions of the new Act. S.9 of the Interpretation and General Clauses Act 1125 can save the right of the petitioner only if there is no contrary intention expressed in the Motor Vehicles Act, 1988. S.9 of the Interpretation and General Clauses Act 1125 can save the right of the petitioner only if there is no contrary intention expressed in the Motor Vehicles Act, 1988. In my view the proviso to S.71 clearly expresses a contrary intention in that no operator other than an individual or a State Transport Undertaking is entitled to a permit fora route having a distance of 50 Kms or less. 7. In the decision reported in AIR 1992 SC 180 the Supreme Court has held that an application for renewal of permit made under the old Act could be continued under the new Act in view of the saving oflhe right contained in S.217 of the 1988 Act. In dealing with this question in paragraph 5 of the said judgment their Lordships posed the question thus: "Does the new Act indicate any intention to the contrary No express provision debarring renewal of permits, applied for, under old Act could be pointed out". It is therefore clear that if there is a contrary intention manifested by the Motor Vehicles Act, 1988, no operator can claim a right to have the renewal which he might have had under the 1939 Act. In the present case the application for renewal itself was made after the 1988 came into force. S.217(2)(b)of the Motor Vehicles Act, 1988 says only a permit issued under the old Act and provides that it shall continue to have effect after the commencement of the new Act under the same conditions and for the same period as if the new Act had not been passed. This would only mean that if the petitioner had a renewed permit under the Motor Vehicles Act, 1939 and the period of the permit had not expired when the 1939 Act was repealed by the 1988 Act, then by virtue of S.217(2)(b) of the Act the right of the petitioner to continue to operate on the basis of that permit would continue till the expiry of the period of the permit. In the present case the position is that the permit granted under the 1939 Act and which the petitioner could take advantage of by applying S.217(2)(b) of the 1988 Act expired on 22-12-1990. In the present case the position is that the permit granted under the 1939 Act and which the petitioner could take advantage of by applying S.217(2)(b) of the 1988 Act expired on 22-12-1990. The present application made thereafter under the Motor Vehicles Act, 1988 for renewal has to be dealt with in terms of the new Act and if so dealt with it is clear that by virtue of the proviso to S.71 of the Act no permit could be granted to the petitioner on the route in question. In that view I do not find any reason for interfering with the decision of the STAT refusing the renewal of the permit on the route in question to the petitioner. In the result I dismiss this Original Petition. I make no order as to costs.