VIJAYA N. RAI v. STATE OF KARNATAKA — 1997 DIGILAW 30 (KAR)

H. N. TILHARI, J. ( 1 ) HEARD Sri c. s. shanthamallappa, learned counsel for the petitioner and Smt. Sujatha, learned government pleader. ( 2 ) BY this petition, the petitioner has prayed for issue of a writ of certiorari for quashing the endorsement dated 8-1-1997 in case No. Rta : dk: b-l: pr: 15: 96-97 (annexure-'e' to the petition) whereby the opposite party the regional transport officer, dakshina kannada, mangalore, has refused to grant special permit to the petitioner simply on the ground that,"under Section 88 (8) of the Motor Vehicles Act of 1988, there is no specific direction received in respect of issue of special permit and in respect of this taxation slab is not received at this stage, there is no provision to consider the application for special permit. This endorsement is issued in respect of stage carriages only". ( 3 ) ACCORDING to the petitioner, the head master of south canara high school, ajjavara, sullya, requested the petitioner to take the students of their school for educational tour to certain districts in the State of Karnataka for a period of six days from 16-1-1997 to 21-1-1997. The petitioner has stated that the list of students signed by the head master had also been provided and the letter and the list have been annexed as annexures-'a' and *b' to the writ petition. Petitioner's case is that there upon the petitioner filed an application before the regional transport officer, dakshina kannada, for grant of special permit under Section 88 (8) of the Motor Vehicles Act, 1988, as amended by the Karnataka contract carriages (acquisition) (Amendment) ordinance, 1996. By Section 2 of the ordinance, the Karnataka contract carriages (acquisition) Act, 1976, had been amended from 12-12-1976, and according to the petitioner in Section 24 of the Karnataka contract carriages (acquisition) Act, 1976 (karnataka act 21 of 1976), clauses (iii) and (iv) have been inserted with immediate effect. Petitioner's case is that in view of this amendment, the Provisions of Karnataka Act 21 of 1976 did not apply to any public service vehicle in respect of which special permit is issued. The petitioner has further stated that by order dated 8-1-1997, the authorities have intimated the petitioner that as the authorities have not received any instructions in respect of tax to be collected, special permit cannot be issued. The petitioner has further stated that by order dated 8-1-1997, the authorities have intimated the petitioner that as the authorities have not received any instructions in respect of tax to be collected, special permit cannot be issued. Feeling aggrieved from that Order, the petitioner has come up before this court. ( 4 ) I have heard Sri c. s. shanthamallappa, learned counsel for the petitioner, as well as Smt. Sujatha, learned government pleader. ( 5 ) LEARNED counsel for the petitioner has submitted that on ceclause (iv) has been added to Section 24 of the Karnataka Act No. 21 of 1976, special permit could be granted under Section 88 (8) of the motor vehicles Act, 1988. Learned counsel submitted that the authority illegally refused to grant special permit simply on the ground that tax slab has not been received from the higher authorities and that no directions have been received from the higher authorities to issue special permit. Learned counsel contended that the law provides for grant of special permit under Section 88 (8) of the act and therefore there was no question of any directions being issued by higher authorities to the regional transport officer or being received from the regional transport officer for giving special permit. Learned counsel submitted as such the endorsement dated 8-1-1997 (annexure-'e') is nothing but illegal refusal to exercise jurisdictional power vested under Section 88 (8) of the act. Learned counsel further contended that even if tax slab has not been received from the higher authorities by the regional transport officer, that should not have created a bar against or situation for refusal to grant special permit because the petitioner has deposited in advance a sum of Rs. 20,400/- as tax and the petitioner has always been prepared to produce an undertaking to pay any further tax, if and when required under law by the authorities, even in relation to this special permit. As such, the learned counsel submitted that a direction may be issued to the regional transport officer that the petitioner may be granted special permit for the period from 16-1-1997 to 21-1-1997. The petitioner undertakes to pay any tax, if and when required, with respect to this special permit to the regional transport officer. As such, the learned counsel submitted that a direction may be issued to the regional transport officer that the petitioner may be granted special permit for the period from 16-1-1997 to 21-1-1997. The petitioner undertakes to pay any tax, if and when required, with respect to this special permit to the regional transport officer. ( 6 ) LEARNED government pleader submitted that there is certain other ingredients which have to be satisfied before a special carriage permit can be granted and unless they are satisfied, authority cannot grant special permit such as petitioner must have a permit to move the motor vehicle on the public road along with insurance policy etc. , and it has not been shown that other conditions have been satisfied. So there is no question of issuing a writ of certiorari quashing annexure-'e'. She further submitted no doubt concession may be given to the effect that if otherwise the petitioner satisfies other conditions, then subject to petitioner undertaking or furnishing an undertaking to deposit and pay the tax which under law may be required, special permit may be granted by the regional transport officer. ( 7 ) I have applied my mind to the contentions raised by the learned counsel for the parties. Section 88 of the Motor Vehicles Act, 1988, provides for validation of permits for use outside the region in which it is granted. ( 7 ) I have applied my mind to the contentions raised by the learned counsel for the parties. Section 88 of the Motor Vehicles Act, 1988, provides for validation of permits for use outside the region in which it is granted. Sub-section (8) of Section 88 may be quoted herewith:"section 88 (8):notwithstanding anything contained in sub-section (1), but subject to any rules that may be made under this act by the central government, the regional transport authority of any one region or, as the case may be, the state transport authority, may, for the convenience" of the public, grant a special permit to any public service vehicle including any vehicle covered by a permit issued under Section 72 (including a reserve stage carriage) or under Section 74 or under sub-section (9) of this Section for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down along the line of route passengers not included in the contract, and in every case where such special permit is granted, the regional transport authority shall assign to the vehicle, for display thereon, a special distinguishing mark in the form and manner specified by the central government and such special permit shall be valid in any other region or state without the counter-signature of the regional transport authority of the other region or of the state transport authority of the other state, as the case may be". a reading of this Section per se reveals that under this Section, notwithstanding what is contained in sub-section (1) of Section 88, the regional transport authority of the region as well as the state transport authority have been empowered, subject to any rules made under the Act, to grant special permit to any public service vehicle including the vehicles covered by a permit issued under Section 72 or under Section 74 or under sub-section (9) of the act. The conditions are specified subject to which special permit has to be granted and the period for which it shall be valid and it provides that it shall be valid in other states without being counter-signed. A reading of the Section reveals that no higher authority is required to issue directions to the regional transport authority, regional transport officer or state transport authority to grant special permits. A reading of the Section reveals that no higher authority is required to issue directions to the regional transport authority, regional transport officer or state transport authority to grant special permits. Section 88 (8) empowers the state transport authority or the regional transport authority, as the case may be, subject to what is provided under sub-section (8), for the convenience of the public, to issue special carriage permit. The question of public convenience may also include the convenience or interest of the students or public involved in educational activities as well as to broaden the vision of the students from the narrow limits of townships of regionalism to that of higher regions namely students of villages may have the light of towns, cities or other regions as well as other parts of the country. So far as the purpose mentioned, the convenience of the public and for educational interest of the public, particularly the student community, the transport authority, regional or state, can grant the permit, but subject to the conditions prescribed in the act or subject to the rules made by the government. So, in my opinion, the regional transport officer has mistaken by refusing to grant special permit on the ground that it has not received any direction from the higher authorities. There was no question of higher authority issuing any directions when the act itself so provides. No doubt, Karnataka Act No. 21 of 1976, Karnataka contract carriages (acquisition) Act, provides for exclusive privilege of running any contract carriages in favour of the state transport corporation. A reading of Section 20 of the Karnataka contract carriages (acquisition) Act, 1976, provides as under:"section 20. Corporation to have exclusive privilege of running any contract carriage. No doubt, Karnataka Act No. 21 of 1976, Karnataka contract carriages (acquisition) Act, provides for exclusive privilege of running any contract carriages in favour of the state transport corporation. A reading of Section 20 of the Karnataka contract carriages (acquisition) Act, 1976, provides as under:"section 20. Corporation to have exclusive privilege of running any contract carriage. Notwithstanding anything in the Motor Vehicles Act, with effect on and from the notified date (1) all contract carriage permits granted or renewed in respect of any vehicle other than a vehicle (i) acquired under this act; or (ii) belonging to the corporation; or (iii) referred to in Section 24, shall stand cancelled; (2) the corporation shall be entitled, subject to the Provisions of Section 24, to the grant or renewal of contract carriage permits to the exclusion of all other persons; and (3) no officer or authority shall invite any application or entertain any such application of persons other than the corporation for the grant of permit for the running of any contract carriage". a reading of this Section shows that permit is granted with exception to vehicles mentioned in sub-clauses (i), (ii) and (iii) of clause (1 ). A reading of this Section indicates that the exclusive privilege conferred to the corporation which will not effect adversely the carriages covered by Section 24. Section 24 of act No. 21 of 1976 is exemptions clause. It provides as under:"section 24. Exemptions. Nothing contained in this act shall apply to (i ). . . . . . . . . . . . . . . . . . . . . . Not relevant. (ii ). . . . . . . . . . . . . . . . . . . . . not relevant. (iii ). . . . . . . . . . . . . . . . . . . . . not relevant". clause (iv) which has been added and inserted by the amendment ordinance namely the Karnataka contract carriages (acquisition) (Amendment) ordinance, 1996, reads as under:"clause (iv) of Section 24: any public service vehicle including any vehicle covered by permit issued under Section 72 (including reserved stage carriages) or under sub-section (9) of Section 88 of the Motor Vehicles Act, 1988, to which a permit under sub-section (8) of Section 88 of the said act is issued". the Provisions of Section 24 of the act No. 21 of 1976 will not apply to any public service vehicle including other vehicles referred to in respect of which a permit under Section 88 (8) of the Motor Vehicles Act is or has been issued. It means it may apply to the cases where permit under Section 88 (8) has not been issued. ( 8 ) THUS, considered in my opinion, the state transport authority and regional transport authority have full jurisdiction to consider the application of the petitioner for grant of special permit on merits and it could not assume that it had no jurisdiction to consider it unless directions from higher authorities are issued. The other reason on which the regional transport authority appeared to have refused to grant special pemit is that taxation slab has not been received from higher authorities. Taxation slab if not have been received, in my opinion, it should not have caused any hindrance in the matter of considering and disposing of the application for grant of special permit. The authority could have taken an undertaking from the applicant or claimant undertaking to pay the tax legally payable under the tax slab once the tax slab is received with reference to this permit or with respect to the tour under the special carriage permit, or requiring the claimant to furnish certain security for the payment of that tax, then it can always grant such a permit and realise the tax assessed later on from the operation under special carriage permit. No such conditions have been shown to me by the learned government pleader that fixation of tax and realisation of tax is not a condition precedent to issuance of the permit. In my opinion, in such a case, the order revising to grant the special permit to the petitioner suffers from jurisdictional error. It means refusal to exercise jurisdiction power vested under Section 88 (8) of the Motor Vehicles Act on the basis of misconception of law and its power under the aforesaid sub-section (8) of section 88. ( 9 ) THIS writ petition is allowed with the following directions. (a) endorsement dated 8-1-1997 (annexure-'e') passed by the regional transport officer is hereby quashed. ( 9 ) THIS writ petition is allowed with the following directions. (a) endorsement dated 8-1-1997 (annexure-'e') passed by the regional transport officer is hereby quashed. (B) the regional transport officer is directed to consider the petitioner's application for special permit and if petitioner satisfies all other requisite conditions and ingredients under Section 88 (8) of the Motor Vehicles Act and the rules framed thereunder and the authorities are satisfied about that, then the regional transport officer may issue special permit to the petitioner subject to petitioner furnishing an undertaking in writing in the form of an affidavit and if necessary by furnishing security as well to the satisfaction of the regional transport officer for payment of tax with reference to the special permit and the vehicle taking the number of students on tour, on the tax being assessed subsequently, if necessary, after the tax slab is received by the regional transport officer from competent authority and a notice of order of assessment and demand of the tax being issued and in every case, he should undertake to pay the tax within two weeks from the date of receipt of such notice of demand in respect thereof. (C) the regional transport officer is directed to dispose of this matter within a period of two complete days from the date of service of this order or operative portion of the order at least, on the regional transport officer. Let a copy of the operative portion of the order be issued to the petitioner today on furnishing necessary charges, and special intimation may he sent to the authority telegraphically on petitioner's furnishing the necessary charges therefor. ( 10 ) THE writ petition is thus finally disposed of as allowed. --- *** --- .