Benny Mathew v. Mohanan — 1998 DIGILAW 506 (KER)

Judgment :- K.S. Radhakrishnan, J. Question that falls for consideration in these cases is whether Secretary of a Regional Transport Authority could issue temporary permits on inter-district routes without concurrence or countersignature from a Regional Transport Authority or Regional Transport Authorities of other region or regions and whether powers conferred on a Regional Transport Authority under R.170 of the Kerala Motor Vehicles Rules could be exercised by its Secretary. 2. The Motor Vehicles Act, 1988 has authorised the State Government under Section 68 of the Act to constitute for the State a State Transport Authority and in the like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (regions) as may be specified in the gazette notification in respect of each Regional Transport Authority the powers and functions conferred by or under Chapter V of the Act. A State Transport Authority or Regional Transport Authority so constituted consists of a Chairman, who has had judicial experience or experience as an appellate or revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law. Regional Transport Authority also consists of other members. An Authority constituted under S.68(2) is to act as a quasi-judicial authority while exercising various powers conferred on it by the Act and Kerala Motor Vehicles Rules, 1989. 3. Every application for a permit shall be made to Regional Transport Authority of a region in which it is proposed to use the vehicle or vehicles in accordance with Section 69 of the Act. If it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles. An application for a permit in respect of a stage carriage shall contain, among other things, the route or routes or the area or areas to which the application relates. The procedure to be followed by a Regional Transport Authority in considering the application for stage carriage permit is dealt with in S.71. An application for a permit in respect of a stage carriage shall contain, among other things, the route or routes or the area or areas to which the application relates. The procedure to be followed by a Regional Transport Authority in considering the application for stage carriage permit is dealt with in S.71. The procedure in applying for and granting permits is dealt with in S.80 of the Act; However, a Regional Transport Authority may without following the procedure laid down in S.80 can grant permits to be effective for a period which shall not, in any case, exceed four months to authorise the use of a transport vehicle temporarily. S.87, in so far as it is material, is extracted below for easy reference: "87. Temporary permits.- (1) A Regional Transport Authority and the State Transport Authority may without following the procedure laid down in S.80, grant permits, to be effective for a limited period which shall not in any case exceed four months to authorise the use of a transport vehicle temporarily - (a) for the conveyance of passengers on special occasions such as to and from fairs and religions gatherings, or (b) for the purposes of a seasonal business, or (c) to meet a particular temporary need, or (d) pending decision on an application for the renewal of a permit, and may attach to any such permit such condition as it may think fit: 4. A Regional Transport Authority under S.87 of the Act could issue a temporary permit to be operative within its region. It can also entertain applications for temporary permits to be operative in other regions as well. A temporary permit issued by a Regional Transport Authority on inter-district route under S.87 could be validated in other region or regions in accordance with S.88(7) of the Act. S.88(7) reads as follows: "Notwithstanding anything contained in sub-s.(1), a Regional Transport Authority of one region may issue a temporary permit under S.87 to be valid in another region or State with the concurrence, given generally or for the particular occasion, of the Regional Transport Authority of that other region or of the State Transport Authority of that other State, as the case maybe". On a combined reading of Ss.87 and 88(7) of the Act, a temporary permit issued by a Regional Transport Authority on inter-district route will be valid in other region or regions in the State with the concurrence of the Regional Transport Authorities of other regions, given generally or for the particular occasion. However, R.170 of the Kerala Rules validates a temporary permit granted by a Regional Transport Authority to be operative in other region or regions without the countersignature of Regional Transport Authorities of other region or regions. The said rule is extracted below: "170. Grant of Temporary permits for other regions without countersignature.- A temporary permit granted by a Regional Transport Authority shall be valid in any other region or regions in this State without countersignature by the Regional Transport Authority of the other region or regions in the following cases: (a) a temporary permit granted under clause (a) or (c) of S.87 of the Act for a period not exceeding 20 days: (b) a temporary permit under clause (c) of S.87 of the Act for a period exceeding 20 days and under clause (b) of S.87 of the Act granted to a contract carriage. (c) a temporary permit under clause (c) of S.87 of the Act for a period exceeding 20 days and under clause (b) of S.87 of the Act granted to a stage carriage, provided that prior concurrence of the Regional Transport Authority or Regional Transport Authorities concerned shall have been obtained for the issue of the temporary permit: Provided that such concurrence shall not be necessary for the grant of a temporary permit to perform substitute service in place of a vehicle already covered by a valid permit for operation on any inter-district route. (d) a temporary permit granted under clause (d) of S.87 of the Act, provided that the permit in respect of which application for renewal is pending is renewable under these rules with out countersignature by the Regional Transport Authority or Regional Transport Authorities concerned". (d) a temporary permit granted under clause (d) of S.87 of the Act, provided that the permit in respect of which application for renewal is pending is renewable under these rules with out countersignature by the Regional Transport Authority or Regional Transport Authorities concerned". (emphasis supplied) On a combined reading of Ss.87 and 88 (7) and R.170 of the Kerala Rules, it is clear that a temporary permit granted by a Regional Transport Authority on an inter-district route shall be valid in any other region or regions without counter signature if the temporary permit is granted for a period not exceeding 20 days for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings or to meet a particular temporary need. Therefore, if the period of the permit is not exceeding 20 days, no countersignature is necessary on inter-district routes if granted by a Regional Transport Authority. However, in the case of a temporary permit on inter-district route granted to meet a particular need, for a period exceeding 20 days. and for the purpose of a seasonal business granted to a stage carriage would be valid in other region or regions, provided prior concurrence of Regional Transport Authority or Regional Transport Authorities of other region or regions have been obtained. Therefore, even for a Regional Transport Authority, before issuing temporary permit for inter-district routes, prior concurrence of other Regional Transport Authorities is necessary, if the period exceeds 20 days and for a permit to be issued under clause (c) of S.87(1) of the Act, and also for a permit to be issued under S.87(1)(b) of the Act. 5. However, for the grant of temporary permit to perform substitute service in the place of a vehicle already covered by a valid permit for operating on any inter-district route, such concurrence is not necessary, if the permit is granted by the R.T.A. 6. The above mentioned are the powers which can be exercised by a Regional Transport Authority while issuing temporary permits in a region as well as on inter district route. Under S.68(5) of the Act, a Regional Transport Authority, if authorised by rules, can delegate such of its powers and functions to such authority or person, subject to such restrictions, limitation and conditions as may be prescribed by the said rules. Under S.68(5) of the Act, a Regional Transport Authority, if authorised by rules, can delegate such of its powers and functions to such authority or person, subject to such restrictions, limitation and conditions as may be prescribed by the said rules. The said sub-section is extracted below for easy reference: "68(5X The State Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under S.96 may delegate such of its powers and functions to such authority or persons subject to such restrictions, limitation and conditions as may be prescribed by the said rules." (emphasis supplied) Section 96 of the Act empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter V. Provisions with which we are primarily concerned are Ss.69 to 71, 72, 87, 88 and 96, which all come within Chapter V. S.96(2)(xi) and (xxxiii) are extracted below for easy reference: "96. Power of State Government to make rules for the purposes of this Chapter. (1)a State Government may make rules for the purpose of carrying into effect the provisions of this Chapter. (2) Without prejudice to the generality of the foregoing power, rules under this Section may be made with respect to all or any of the following matters, namely : (xi) the conditions subject to which, and the extent to which, a permit granted in one region shall be valid in another region within the S tate without countersignature: (xxiii) any other matter which is to be or may be prescribed". The State Government in exercise of the powers conferred under the above mentioned provisions and other provisions enacted the Kerala Motor Vehicles Rules, 1989. R.170 of the Kerala Rules enables a Regional Transport Authority to grant temporary permit valid in other region or regions without countersignature. S.68(5) as already mentioned enables a Regional Transport Authority, if authorised in this behalf. by rules made under S.96 may delegate such of its powers and functions to such authority or person subject to such restrictions, limitation, and conditions as may be prescribed by the said rules. R.133 of the Kerala Rules enables a Regional Transport Authority for the prompt and convenient despatch of business, by general or special resolution, delegate to the Secretary, certain functions, if authorised by rules. Relevant clauses of R.133 with which we are concerned are extracted below: "133. R.133 of the Kerala Rules enables a Regional Transport Authority for the prompt and convenient despatch of business, by general or special resolution, delegate to the Secretary, certain functions, if authorised by rules. Relevant clauses of R.133 with which we are concerned are extracted below: "133. Power of Regional Transport authority. delegation to secretary:-(1) the Regional Transport Authority may, for the prompt and convenient despatch of business, by general or special resolution delegate to the Secretary any or all of the following functions: 0) power under S.87 of the Act to grant or refuse a temporary permit. (fa) power to grant temporary permit under sub-s.(7) of S.88 of theAct". On a combined reading of S.68(5) and 96 and R.133 a Regional Transport Authority can delegate to its Secretary only the powers conferred on it under Ss.87 and 88(7) of the Act. Rule making authority has not authorised a Regional Transport Authority to delegate the powers conferred on it under R.170. S.68(5) specifically says that a Regional Transport Authority, if authorised in this behalf by rules made under Section 96 may delegate such of its powers and functions to the Secretary of a Regional Transport Authority, subject to such restrictions, limitation, and conditions as may be prescribed by the said rules. R.133(1 )(j) and (m) authorises a Regional Transport Authority only to delegate its functions under S.87 and under S.88(7). The jurisdiction given to a Regional Transport Authority to delegate its powers is not absolute. It can delegate only those powers authorised by the rules. 7. The Kerala Motor Vehicles Rules have never authorised a Regional Transport Authority to delegate all powers to its Secretary. Secretary of a Regional Transport Authority could exercise only those powers under Ss.87 and 88(7). S.68(5) specifically says that Regional Transport Authority only if it is authorised in this behalf by rules made under S.96 may delegate such of its powers and functions. In this connection reference may be made to a decision of the Division Bench of the Allahabad High Court in Nadir Husain v. Regional Transport Officer, AIR 1990 All. 35, which, while interpreting S.44(5) which is pari materia to S.68(5), held that the source of power to grant temporary permit under different provisions are distinct and separate. 8. In this connection reference may be made to a decision of the Division Bench of the Allahabad High Court in Nadir Husain v. Regional Transport Officer, AIR 1990 All. 35, which, while interpreting S.44(5) which is pari materia to S.68(5), held that the source of power to grant temporary permit under different provisions are distinct and separate. 8. It is relevant to note that whenever the rule making authority wanted the Regional Transport Authority to delegate its powers, rules have been framed for that purpose. For example, power to be exercised by a Regional Transport Authority to grant prior concurrence has been delegated to its Chairman under R.133(4) of the Kerala Rules, which is extracted below: "The Regional Transport Authority may, by general resolution, delegate to Chairman, the power to grant prior concurrence referred to in sub-r.(c) of R.170". Reference may also made to R.145(7) of the Kerala Rules. R.145 deals with grant, variation, suspension or cancellation, change of timings, etc. of stage carriage permits. In this connection reference may be made to R.145(7) which is extracted below: 'Transport Authorities shall, in deciding whether to grant or refuse additional trips or change of timings, have regard to the following maters, namely: (i) need for provision of additional facilities or for revision of existing timings in the interest of public; special circumstances, such as changes in the railway timings. Changes in the number of permits either on the route or on the sectors of the route, or variation of routes". Rule making authority has therefore, conferred this power on the Transport Authorities, ie., Regional Transport Authorities. The rule making authority under Rule 212(2) and (3) has authorised the Regional Transport Authority to delegate with regard to variation of timings to its Secretary. R.212(2) and (3) is extracted below: "212. (1) (2) The changes ordered by the Transport Authority in the timings of a service shall not be considered as variation of permit under sub-s.(3) of S.80 of the Act. (3) The State Transport Authority or Regional Transport Authority may, by resolution, delegate to its Secretary, the powers conferred on it under this rule subject to any conditions that it may prescribe" (emphasis supplied) Therefore, a power conferred on a Regional Transport Authority under R.212(1) and (2) could be delegated to its Secretary, since rules authorise such delegation. This. satisfies S.68(5) of the Act. This. satisfies S.68(5) of the Act. Therefore, wherever rule-making authority in its wisdom wanted a Regional Transport Authority to delegate its powers to Secretary, provisions have been made. Rule making authority has not-made any provision to delegate powers conferred on a Regional Transport Authority under R.170 to its Secretary. 9. Rule making authority in its wisdom thought Secretary of a Regional Transport Authority being an executive officer of the Authority shall not usurp jurisdiction of other Regional Transport Authorities. Secretary is also not an 'authority' as defined under S.68 of the Act. Therefore, on a combined reading of Ss.68(5), 87 and 88(7) and Rule 133(1)(j) and (m), it is clear that Secretary of a Regional Transport Authority could issue temporary permit on inter-district routes, for a period not exceeding four months, only if the Regional Transport Authority or Regional Transport Authorities of other region or regions had already given concurrence, generally or for the particular occasion, so as to operate in their region or regions by way of temporary permit. Further, the proviso to R.170 only authorises the Regional Transport Authority to grant temporary permit to perform substitute service on inter-district route without prior concurrence. As far as the Secretary is concerned, he has to comply with the condition mentioned in S.88(7) of the Act. 10. In the light of the above mentioned principles, we have to consider the cases at hand. I heard Sri. P. Deepak, counsel appearing for the petitioner in O.P. No. 18226 of 1998, Sri. Ghandramohan Das, counsel appearing for the petitioner in O.P. No. 18812 of 1998, Sri. G. Prabhakaran and Sri. P. Santhosh Kumar (TR), counsel appearing for the petitioner in O.P. No. 18842 of 1998 and Sri. P. Gopalakrishna Menon and Sri. I. Dinesh Menon, on the side of the respondents in O.P. No. 18226 of 1998. 11. In O.P.No.18226 of 1998, Regional Transport Authority, Kannur, had granted regular permit for conducting stage carriage service on the route Rajagiri-Kottayam for vehicles KL-13/A 5409 (replaced by KL-14/9099) and KL-13/A 5517. Permit holder was conducting alternative services, but defaulted services in the year 1997. Secretary, Regional Transport Authority, Kannur, began to issue successive temporary permits to operate substitute service. For the last four months respondents 1 and 2 are operating in the defaulted vacancies on the strength of temporary permits granted to their vehicles KL-5/F 6186 and KL-14/B 1359 respectively. Permit holder was conducting alternative services, but defaulted services in the year 1997. Secretary, Regional Transport Authority, Kannur, began to issue successive temporary permits to operate substitute service. For the last four months respondents 1 and 2 are operating in the defaulted vacancies on the strength of temporary permits granted to their vehicles KL-5/F 6186 and KL-14/B 1359 respectively. First petitioner is operating service on the route Pathanamthitta-Chittarikkal on the strength of a regular permit granted to his stage carriage KL-5/G182 and second petitioner is operating his vehicle KL-5/D 2536 on the route Changanacherry-Konnakkadu. Both the services are long distance inter-district services transversing the Districts of Kottayam, Pathanamthitta, Idukki, Ernakulam, Trichur, Malappuram, Kozhikode, Kannur and Kasaragod. Petitioners noticed that from 1.8.1998 the first and second respondents had commenced operation on an entirely different set of timings, which is prejudicial to their services. According to counsel for the petitioners, instead of proceeding to Rajagiri from Pullingam, the services started proceeding to a place called Vellarikundu on a deviated route. The sector from Pullingam to Rajagiri stood curtailed and the route being operated was Kottayam-Vellarikundu. Enquiries revealed that the original permit holder had sought variation of his route Rajagiri-Kottayam, as Vellarikundu-Kottayam. Application for variation was initially rejected by the Regional Transport Authority, Kannur, but later allowed by the S.T.A.T. Counsel submits permit holder had defaulted services, but this fact was not brought to the notice of the State Transport Appellate Tribunal, who sanctioned variation subject to countersignature of R.T.A., Kasaragod in whose jurisdiction a portion of the varied route falls. Secretary, Regional Transport Authority, however, convened a timing conference on 28.7.1998 and approved a set of timings on the route Vellarikundu-Kottayam. According to petitioners, the Secretary, Regional Transport Authority, Kannur, approved the timings in respect of varied route, Vellarikundu-Kottayam even before the permit holder had got the variation endorsed, which is evident from Ext. P1 itself. The operation of services by respondents 1 and 2 on the varied route, according to petitioners, is illegal and unauthorised. According to petitioners, Secretary, Regional Transport Authority, has no jurisdiction to issue successive temporary permits without obtaining concurrence from the Regional Transport Authority of Pathanamthitta, Idukki, Ernakulam, Trichur, Kottayam, Malappuram, Kozhikode, Kannur and Kasaragod. 12. A counter affidavit has been filed on behalf of respondents 1 and 2. According to petitioners, Secretary, Regional Transport Authority, has no jurisdiction to issue successive temporary permits without obtaining concurrence from the Regional Transport Authority of Pathanamthitta, Idukki, Ernakulam, Trichur, Kottayam, Malappuram, Kozhikode, Kannur and Kasaragod. 12. A counter affidavit has been filed on behalf of respondents 1 and 2. According to them, Secretary of Regional Transport Authority has got jurisdiction to issue successive temporary permits on defaulted vacancy without obtaining concurrence from the Regional Transport Authority of other districts, since permits have beenissued to operate service in substitution of vehicle already covered by a valid regular permit. According to them, they are operating services only through the route Rajagiri-Kottayam and Kottayam-Rajagiri. 13. It is not disputed that Secretary, Regional Transport Authority, Kannur, has been issuing successive temporary permits, without obtaining concurrence from the Regional Transport Authority of other Districts. I have found the Secretary, Regional Transport Authority has no jurisdiction to issue temporary permit without getting prior concurrence, generally or for particular occasion, of Regional Transport Authority of other region or regions before issuing the temporary permit. Therefore, the issuance of successive temporary permits without obtaining concurrence generally or for the particular occasion is unauthorised and without jurisdiction. It is therefore, declared that all the temporary permits granted to respondents 1 and 2 by Secretary, Regional Transport Authority, Kannur, without obtaining prior concurrence generally or for the particular occasion from the Regional Transport Authority of Pathanamthitta, Kottayam, Idukki, Ernakulam, Trichur, Malappuram, Kozhikode, Kannur and Kasaragod are illegal and without jurisdiction and void. 14. Petitioner in O.P. No. 18812 of 1998 submitted an application for grant of a regular permit to operate on the route Madikalmadam-Kannur-Kasaragod before the Regional Transport Authority, Kasaragod, which is the primary authority. Regional Transport Authority considered the same in its meeting held on 28.5.1997 and rejected the same. Appeal was preferred before the State Transport Appellate Tribunal as M.V.A.A. No. 1032 of 1997. Tribunal allowed the appeal and granted the permit, subject to countersignature of Regional Transport Authority, Kannur. Secretary, Regional Transport Authority, Kasaragod, later issued Ext. P3 permit to the petitioner subject to countersignature of Regional Transport Authority, Kannur. Secretary also settled timings vide Ext. P4 order. Petitioner then submitted an application before the Regional Transport Authority, Kannur, for countersigning Ext. P3 permit. The application is pending consideration. Petitioner in the meantimefiledExt. Secretary, Regional Transport Authority, Kasaragod, later issued Ext. P3 permit to the petitioner subject to countersignature of Regional Transport Authority, Kannur. Secretary also settled timings vide Ext. P4 order. Petitioner then submitted an application before the Regional Transport Authority, Kannur, for countersigning Ext. P3 permit. The application is pending consideration. Petitioner in the meantimefiledExt. P6 application for a temporary permit for four months on inter-district route, till the countersignature is obtained from the Regional Transport Authority, Kannur. Secretary, Regional Transport Authority, Kasaragod, however did not issue the temporary permit on inter-district route. Petitioner, therefore, has approached this Court seeking a direction to the Secretary, Regional Transport Authority, Kasaragod, to issue 20 days temporary permit to operate his vehicle on the route Madikalmadam-Kannur-Kasaragod till the disposal of the application for countersignature by the Regional Transport Authority, Kannur. Alternatively, he has also sought for a direction to the Regional Transport Authority, Kannur, to dispose of Ext. P5 application for countersignature. 15. Secretary, Regional Transport Authority, Kasaragod, did not issue the temporary permit to be operative in other districts. I am of the view, rightly since Secretary has no jurisdiction to issue temporary permit to be operative in other districts without getting concurrence from other Regional Transport Authorities concerned. The stand taken by Secretary, Regional Transport Authority, Kasaragod, is only to be upheld. Counsel for the petitioner submitted a direction may be issued to the second respondent to consider Ext. P5 application for countersignature, and pass appropriate orders. I am of the view that the request of the petitioner is justified. Consequently, there will be a direction to the second respondent to pass appropriate orders on Ext. P5 application for countersignature within a period of one month from the date of receipt of a copy of this judgment. 16. O.P.No. 18842 of 1998 is filed for a writ of mandamus directing the Secretary, Regional Transport Authority, Alleppey to issue temporary permit on inter-district route which traverses the district of Pathanamthitta as well. Secretary, Regional Transport Authority, Alleppey did grant the permit, however, limited the operation within the Alleppey District, vide Ext. P4 permit. Aggrieved by the same petitioner has approached this Court. According to petitioner, Secretary, Regional Transport Authority, Alleppey ought to have given temporary permit to operate an inter-district routes, and that no concurrence is necessary since petitioner intends to operate it as substitute service. P4 permit. Aggrieved by the same petitioner has approached this Court. According to petitioner, Secretary, Regional Transport Authority, Alleppey ought to have given temporary permit to operate an inter-district routes, and that no concurrence is necessary since petitioner intends to operate it as substitute service. I have already found that Secretary of a Regional Transport Authority is bound to comply with the provisions of S.88(7), that means, he is bound to get concurrence generally or for the particular occasion even for issuing a temporary permit in a defaulted vacancy. I am of the view that Secretary, Regional Transport Authority, Alleppey is justified in limiting the permit within the Alleppey District, since no concurrence generally or for the particular occasion has been granted for the issuance of the temporary permit by the Regional Transport Authority, Pathanamthitta. Writ Petition therefore, lacks merits and the same is dismissed.