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2000 DIGILAW 260 (KER)

Mohanan v. R. T. A.

2000-05-23

C.S.RAJAN

body2000
Judgment :- C.S. Rajan, J. The petitioner was granted a temporary permit to operate on the route Kundannoor-Kundannoor (circular) as per the decision of the first respondent in Ext. P3. Ext. P3 says that the petitioner was granted a temporary permit for four months subject to settlement of timings. The decision in Ext. P3 was taken by the first respondent by circulation. The third respondent is an operator of stage carriage with regular permit on the route Vyttila-Vyttila circular. The main contention taken by the third respondent before the fourth respondent-Appellate Tribunal is that there was no positive finding regarding the temporary need on the above route to grant a temporary permit to the petitioner under S.87 of the Motor Vehicles Act (hereinafter referred to as 'the act). In Ext. P9 order of the fourth respondent-Appellate Tribunal the grant of the temporary permit of the petitioner was set aside. The main reason stated for setting aside the grant in favour of the petitioner is that the first respondent without giving a positive finding of a temporary need and without applying its mind granted the permit. The fourth respondent also held that the decision was taken by circulation among the members of the first respondent and there is nothing in the files to indicate that the Secretary to the first respondent got approval of the Chairman to circulate the application among the members under R.130 of the Kerala Motor Vehicles Rules. 2. Sri. P. Gopalakrishna Menon, learned counsel for the petitioner strongly relied ob various rulings of the Supreme Court and of this Court to drive home the point that the third respondent has no locus standi to challenge the grant of temporary permit to the petitioner under the Act. The further grievance of the petitioner is that even though the fourth respondent had referred to the various rulings cited by the petitioner, he has chosen to ignore the law laid down by the various rulings and proceeded to interfere with the grant of the permit to the petitioner. Therefore, according to him, the fourth respondent misdirected itself to the legal point and therefore, erred in interfering with the order of the first respondent in granting the temporary permit. Therefore, according to him, the fourth respondent misdirected itself to the legal point and therefore, erred in interfering with the order of the first respondent in granting the temporary permit. On the other hand, it was connected by learned councel for the third respondent that under S.87 of the Act temporary permits can be granted only to meet a particular temporary need and should be specifically shown in the application filed by the operator. In the application filed by the petitioner no such need was mentioned. Ext. P3 order granting the temporary permit for fourth months is also bereft of any finding of the temporary need. The fourth respondent also had the advantage by perusing the files of the first respondent and found that the files also did not disclose the existence of any temporary need. Thus, it was argued that Ext. P9 does not require any interference by this Court under Arts.226 or 227 of the Constitution. 3. In order to understand the scope and ambit of the argument put forward by both sides it is necessary to refer some of the decisions cited at the bar. In Mithilesh Garg v. Union of India (AIR 1992 SC 443) the Supreme Court considered the legality of granting permits to the stage carriage operators under the Motor Vehicles Act, 1988. The Supreme Court upheld the liberalisation policy adopted and approved by the Government in the matter of granting permits to every operator who applies for the same on the ground that the transport system in a State is meant for the benefit and convenience of the public. The petitioners in the above case were existing stage carriage operators on different routes. They challenged the grant of regular permits to various operators on the same route. Dealing with the above question the Supreme Court held that the existing operators cannot have any grievance against the granting of permits to new entrants. 4. In the ruling reported in Girija Devi v. Mathew (1991 (1) KLT 353) a Division Bench of this Court also took the same view that the question of hearing an objector to the grant of permit would not arise under any circumstances. The only grievance he may make is about the timings and that has to be taken care of by the Secretary to the Regional Transport Authority after holding a timely conference. The only grievance he may make is about the timings and that has to be taken care of by the Secretary to the Regional Transport Authority after holding a timely conference. Still later in Secretary, T.R.B.T. Co-operative Society v. Mathew Job (1992 (1) KLJ 262) a Division Bench of this Court elaborately discussed the question of locus standi of an existing operator who objected the grant of a permit to a new operator under the new Motor Vehicles Act, 1988. In the above ruling a reference was made to Mithilesh Garg's case. In the above case also the Division Bench was considering the granting of a regular permit under the Act. This Court observed that the decision of the Supreme Court in Mithilesh Garg's case clearly laid down that the existing operators have no right to object to the grant of a permit to a new operator under the new Motor Vehicles Act, 1988. The latest ruling on this point by this Court is reported in Ushakumari v. Abdul Azeez (2000 (1) KLJ 141). In that judgment a Division Bench of this Court held that the right of an existing operator to object to the grant of a permit in favour of another person under the provisions of the Motor Vehicles Act, 1988, has been taken away and his right is only confined to the objections regarding timings. The rulings of the Supreme Court and for this Court referred to above have been cited with an approval in Ushakumari's case (2000 (1) KLJ 141). Therefore, according to learned counsel for the petitioner, there is no escape from the positive position that the thirH resnondent has absolutely no locus standi to object to the granting of permit to the petitioner. On the other hand, it was forcibly argued by Sri. Sajeevkumar K. Gopal that the granting of temporary permit must satisfy the requirements of S.87 of the Act. The conditions mentioned for granting the temporary permit under S.87 of the Act are as follows: "(a for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or (b) for the purposes of seasonal business, or (c) to meet a particular temporary need, or (d) pending decision on an application for the renewal of a permit." There are a number of decisions under the old Act. S.67 which corresponding to S.87 of the new Act (please see Louis v. R.T.A., Kottayam 1997 (1) KLT 241). The learned counsel also cited a recent ruling of this Court reported in Manu Kurikkal v. R.T.A., Malappuram (1999 (2) KLJ 461). In that case also there was no finding of a particular temporary need justifying the grant of temporary permit. The appellant in that case was an existing operator on the route. 5. Under these circumstances, this Court has to find out whether an existing operator can successfully challenge the grant of temporary permit to another operator on the ground that there was no finding regarding the existence of a temporary need. If the argument of learned counsel for the petitioner is accepted, then it lead to a situation where no action of the Regional Transport Authority, either illegal or arbitrary, can be challenged before any forum. When this Court has taken a consistent stand by a series of decisions under the old Act and the new Act that a finding of an existing temporary need is a sine qua non for granting a temporary permit, then a decision without following the above finding is without jurisdiction. Such action cannot be interfered by any Tribunal or Court if the argument of locus standi of an existing operator is accepted. It may be noted that in all the rulings wherein it was held that the existing operators have no locus standi under the new Act to challenge the granting of a permit, it was of issuance of regular permit and not temporary permit. That is why the Supreme Court observed that the policy behind the enactment of the new Motor Vehicles Act is to liberalise the operation of the stage carriages in order to benefit the public at large. Therefore it is quite consistent with the policy behind the enactment of a new Motor Vehicles Act that there must be more and more stage carriages plying in the country for the sake of convenience of the people. Such granting of regular permits cannot be objected by the existing operators. 6. At the same time, the granting of temporary permits under S.87 of the Act operates in a different field. Only under certain conditions enumerated in the Section the first respondent can grant temporary permits. Such granting of regular permits cannot be objected by the existing operators. 6. At the same time, the granting of temporary permits under S.87 of the Act operates in a different field. Only under certain conditions enumerated in the Section the first respondent can grant temporary permits. If no such conditions exist in a given case, then such a grant can become illegal and without jurisdiction. Such actions of the Regional Transport Authority can be brought to the notice of the Appellate Tribunal or this Court only by an existing operator. Therefore, the principle of locus standi of an existing operator to challenge the grant of a permit must be restricted to the grant of regular permit and not to the grant of a temporary permit in violation of the mandatory provisions contained in S.87 of the Act. If such a view is taken, I think it is in consonance with the Act and Rulings on the subject. 7. Pitted against this stand, learned counsel for the petitioner brought to my notice the revisional powers of the fourth respondent under Ss.90 and 214(3) of the Act. S.90 of the Act reads as follows: "90. Revision. The State Transport Appellate Tribunal may, on an application made to it, call the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority against which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deem fit and every such order shall be final: Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from the date of the order. Provided further that the State Transport Appellate Tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by good and sufficient cause from making the application in time. Provided also that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard". Provided also that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard". According to the learned counsel for the petitioner, the words "a person aggrieved" in the First Proviso to S.90 disentitles the third respondent from challenging the decision of the first respondent to grant a temporary permit to the petitioner before the fourth respondent by way of revision. I do not think the above argument is quite correct. In the main Section there is no mention of "a person aggrieved" who can file application before the Appellate Tribunal. It merely says that the Appellate Tribunal may on an application made to it call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority against which no appeal lies. The main section further empowers the Appellate Tribunal to pass such order in relation to the case if it appears that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal. Therefore, the State Transport Appellate Tribunal can interfere with any order of the State Transport Authority or Regional Transport Authority if it is improper or illegal. In such cases the question of a person aggrieved does not arise. The first proviso to which learned counsel for the petitioner referred to is with regard to the period of limitation within which the revision is to be filed. 8. The other provision on which reliance was placed by learned counsel for the petitioner is S.214(3) of the Act which reads as follows: "(3) No order made by a competent authority under this Act shall be reversed or altered on appeal or revision on of any error, omission or irregularity in the proceedings unless it appears to the prescribed appellate authority or revisional authority, as the case may be, that such error, omission or irregularity has, in fact, occasioned a failure of justice." According to the learned counsel, the error, omission or irregularity in the proceedings of the first respondent must have occasioned in a failure of justice and then only interference is justified. It cannot be said that there was no failure of justice in a case where the Regional Transport Authority acts without jurisdiction. It cannot be said that there was no failure of justice in a case where the Regional Transport Authority acts without jurisdiction. The jurisdictional factor of granting a temporary permit under S.87 of the Act is the existence of a temporary need. If such a temporary need has not been found by the Regional Transport Authority, the Regional Transport Authority does not have jurisdiction to issue a temporary permit. Definitely such an action leads to a failure of justice. Therefore, I do not find any reason to accept the above argument of learned counsel for the petitioner. 9. Under these circumstances, I do not find any irregularity in Ext. P9 order of the fourth respondent. Therefore, the Original Petition is only to be dismissed.