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2000 DIGILAW 334 (ORI)

SAILENDRA KUMAR SINGH v. STATE OF ORISSA

2000-07-04

L.MOHAPATRA, PRADIPTA RAY

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JUDGMENT : Pradipta Ray, J. - The writ petitioner has been plying one of his vehicles in the route from Sambalpur in Orissa to Raipur in Madhya Pradesh on the basis of a temporary permit granted in his favour. The petitioner applied for a second temporary permit for the aforesaid Sambalpur-Raipur route in respect of his vehicle bearing No. OIS 5100. By letter dated December 22, 1999 the Under Secretary of the State Transport Authority, Orissa informed the petitioner that the Transport Commissioner and Chairman, State Transport Authority was pleased to reject the petitioner's application for temporary permit in view of the State Government's Notification No. 15077 dated November 17, 1998. It appears that the State Government issued the above Notification dated November 17, 1998 in exercise of its powers conferred by Clause (iii) of Sub-section (1) of Section 67 of the Motor Vehicles Act giving the following direction both to the State Transport Authority (in short 'S.T.A.') and the Regional Transport Authorities (in short 'R.T.A.') No new temporary permit shall be issued or countersigned by the State Transport Authority or any Regional Transport Authority in respect of Stage Carriages for introduction of additional services on any inter-state route except the existing services operating in the existing inter-State routes until further direction. In this writ application the petitioner has challenged the legality and validity of the aforesaid Notification dated November 17,1998. 2. The main submission as made by Mr. Rao, learned Advocate for the petitioner in support of the challenge is that u/s 67(1) of the Motor Vehicles Act (hereinafter referred to as the 'Act') the State Government cannot issue any order or direction in respect of any quasi-judicial power of the S.T.A. and the R.T.A. According to Mr. Rao, grant of temporary permit u/s 87 of the Act is a quasi-judicial power and beyond the pale of any administrative orders issued by the State Government. 3. Mr. Rao relies upon a decision of the Supreme court in B. Rajagopala Naidu Vs. State Transport Appellate Tribunal and Others. Rao, grant of temporary permit u/s 87 of the Act is a quasi-judicial power and beyond the pale of any administrative orders issued by the State Government. 3. Mr. Rao relies upon a decision of the Supreme court in B. Rajagopala Naidu Vs. State Transport Appellate Tribunal and Others. In B. Rajagopala's case the Supreme Court was considering the legality of an order issued by the State Government of Madras u/s 43A as inserted by the State amendment to the Motor Vehicles Act, 1939 by which the State of Madras introduced a method of awarding marks to be adopted by the State Transport Authority or the R.T.A., while considering applications for grant of permits. In the said context the Supreme Court held: In interpreting Section 43-A, we think, it would be legitimate to assume that the Legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi-judicial function the Tribunal constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. If the exercise of the discretion conferred on a quasi-judicial Tribunal is controlled by any such direction, that forges fetters on the exercise of quasi-judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well-accepted motion of judicial process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters the Tribunals constituted by it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. The scope of the jurisdiction of the Tribunals constituted by Statute can well be regulated by the statute and principles for guidance of the said Tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. By what law and the rights provisions of law may legitimately do cannot be permitted to be done by administrative or execute orders. By what law and the rights provisions of law may legitimately do cannot be permitted to be done by administrative or execute orders. This position is so well established that we are reluctant to hold that in enacting Section 43-A the Madras Legislature intended to confer power on the State Government to invade the domain of the exercise of judicial power. xxx xxx xxx xxx xxx xxx It is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long to consider the validity of the Government order which on. the construction suggested by the respondent would clearly invade the domain of quasi-judicial administration. 4. In the present case by the impugned direction the State Government has not intended to issue any guidelines or manner in which the S.T.A. or R.T.A. is to consider an application for the temporary permit. By the impugned direction the State Government has imposed a restriction on granting temporary stage-carriage permits for introduction of additional services on any inter-State route. Section 67 of the Act confers power on the State Government to issue directions to S.T.A. and R.T.A. by Notification in the Official Gazette among others regarding any matter which may appear to the State Government necessary or expedient for giving effect to any agreement entered into with the Central Government or any other State Government or the Government of any other country. The procedure to be followed before issuing any Notification u/s 67 of the Act has also been laid down under the proviso to Section 67 of the Act. By the impugned direction the State Government has not sought for regulating the manner of arriving at a decision by the S.T.A. or R.T.A. but in fact it has prohibited grant of further temporary permit in any inter-State route. Thus the question here is not interference with exercise of quasi-judicial power, but a prohibition amounting to temporary suspension of the provisions of Section 67 of the Act in respect of inter-State routes or imposition of a moratorium. 5. Section 67(1)(c)(iii) of the Act authorises the State Government to issue an order or direction in the prescribed manner for the purpose of giving effect to any arrangement entered into with any other State. 5. Section 67(1)(c)(iii) of the Act authorises the State Government to issue an order or direction in the prescribed manner for the purpose of giving effect to any arrangement entered into with any other State. It appears from the impugned Notification itself that the same has been issued after complying with the procedure provided in the said Section 67. This Notification is a statutory Notification issued in the prescribed manner and not just an administrative order issued u/s 43-A of the Motor Vehicles Act, 1939. The nature of a statutory Notification is quite different from a general administrative order issued without considering the view point of the persons likely to be affected thereby. 6. On the basis of the submission made on behalf of the petitioner, it is also to be considered whether the power conferred by Section 87 of the Act corresponding to Section 62 of the Act of 1939 is a quasi-Judicial power or an administrative power. In paragraph 12 of the judgment in B. Rajagopala's case the Supreme Court has mentioned the sections of the Act of 1939 which dealt with quasi-judicial powers and functions. Section 62 of the Act of 1939 dealing with grant of temporary permits has not been included. A quasi-judicial function involves determination of a dispute. Temporary permits can be granted only under circumstances mentioned in Section 87. It does not confer any right on an applicant to get a temporary permit but it empowers the S.T.A. or R.T.A. to grant temporary permits under the prescribed circumstances. Application by any intending person is only for the purpose of drawing attention of the S.T.A. or R.T.A. to existence of a situation enabling the concerned authority to grant temporary permit and his intention to ply his vehicle on a temporary permit. In this connection the difference between Section 80 and Section 87 is significant. Section 80 under which permanent permits are granted has made it mandatory to give an opportunity of hearing and to give reasons in case of refusal to grant permit. No such requirement is there u/s 87. Section 87 requires satisfaction of the S.T.A. or R.T.A. on the basis of its own information or materials placed before it. In fact the temporary permits are being granted by the Secretary of the R.T.A. or S.T.A. by way of administrative exercise. No such requirement is there u/s 87. Section 87 requires satisfaction of the S.T.A. or R.T.A. on the basis of its own information or materials placed before it. In fact the temporary permits are being granted by the Secretary of the R.T.A. or S.T.A. by way of administrative exercise. In this connection we may refer to the observations of a Division Bench of this Court in Jubla Kumar Jothi and etc. Vs. State Transport Authority and Others that for the purpose of granting temporary permits the Competent Authority is only required to take a decision and find out whether any of the conditions contained in Clauses (a) to (d) of Sub-section (1) of Section 87 is fulfilled for which temporary permit can be granted to an applicant; that there is no requirement in law to ask for objection opposing grant of such permit and that there is no computation/competition between rival applicants. Accordingly, it is not possible to hold that the S.T.A. or R.T.A. is exercising quasi-judicial power while granting temporary permits u/s 87 of the Act. 7. Even assuming that the Competent Authority exercises quasi-judicial power while considering temporary permit u/s 87 the impugned decision is not a decision interfering with the mode or manner of determination. By the said Notification/order the State Government has imposed a moratorium on grant of temporary permit in existing inter-State routes. As already pointed in Rajagopala's case the Supreme Court was considering the nature of the power exercisable by the Appellate Tribunal under the provisions of the Motor Vehicles Act, 1939. Decision of the Supreme Court in Rajagopala's case is not applicable to the present case. 8. However, the impugned Notification was issued on November 17,1998. Moratorium imposed by the said Notification should not continue for indefinite period. The power u/s 67(1)(d)(iii) of the Act is to be exercised in public interest and accordingly, the State Government is required to examine from time to time whether the public interest for which the said notification was issued in November, 1998 still exists or not. Moratorium cannot be imposed for an indefinite period. 9. For the foregoing reasons, we dispose of this writ petition by directing the State of Orissa, opposite party No. 1 to examine and take a decision whether said impugned Notification should still remain operative or not. Moratorium cannot be imposed for an indefinite period. 9. For the foregoing reasons, we dispose of this writ petition by directing the State of Orissa, opposite party No. 1 to examine and take a decision whether said impugned Notification should still remain operative or not. Such decision should be taken within a period of six weeks from the date of communication of this order and the said decision should be duly circulated. L. Mohapatra, J. 10. I agree.