Research › Search › Judgment

Kerala High Court · body

2002 DIGILAW 106 (KER)

P. K. Shamsudin v. The Chairperson

2002-02-13

R.RAJENDRA BABU

body2002
JUDGMENT R. Rajendra Babu, J. 1. Petitioner, who is a stage carriage operator conducting services on the strength of the regular permit granted to him in respect of his stage carriage bearing Reg. No. KBR 585 oft the route Vadekkencherry-Shornur, filed this petition for quashing Exhibit P2 proceedings of the second respondent, Secretary, RTA, Palakkad granting temporary permit for four months to the third respondent in respect of his stage carriage bearing Reg. No. KL-9/J 7834 on the inter-district route Vadekkencherry-Pazhayannur and also the issue of the temporary permit with a set of timings. The only question for consideration is whether the Secretary, RTA is competent to grant a temporary permit for four months on an inter-district route. 2. The third respondent filed a counter contending that the second respondent was fully competent to issue a temporary permit on an inter-district route on the strength of the delegated powers under Rule 133 of the Kerala Motor Vehicles Rules (hereinafter referred to as 'the Rules') and as such the grant of temporary permit by the Secretary, RTA was valid and in accordance with law. 3. Heard the learned Counsel for the petitioner, the third respondent and the learned Government Pleader. 4. Admittedly, as per Exhibit P2 proceedings dated 19.11.2001, the Secretary, RTA, Palakkad granted and issued temporary permit for four months to the third respondent to operate his stage carriage KL-9/J 7834 on the inter-district route Vadekkencherry-Pazhayannur subject to counter signature of RTA, Thrissur. The learned Counsel for the petitioner submitted that the Secretary, RTA was not competent to grant temporary permit in respect of an inter-district route and hence the grant was illegal. The learned Counsel for the third respondent submitted that under the delegated powers, the Secretary, RTA was fully competent to grant and issue temporary permit even on inter-district route. Rule 133 of the Rules deals with the delegation of powers of the RTA to the Secretary. Clause (j) of Sub-Rule 1 of Rule 133 of the Rules says that the power under Section 87 of the Kerala Motor Vehicles Act (hereinafter referred to as 'the Act') to grant or refuse a temporary permit can be delegated to the Secretary and Clause (m) says that the power under Section 88(7) of the Act regarding the grant of permit in an inter-district route also can be delegated. Section 87 of the Act deals with the grant of temporary permits for a maximum period of four months. Sub-section 1 of Section 88 says that except, as may be prescribed, a permit granted by one Regional Transport Authority of one region shall not be valid in any other region unless the permit had been counter-signed by the RTA of the other region. But, if there was prior concurrence, the permit shall be valid under Sub-section 7 of Section 88 of the Act. Sub-section 7 of Section 88 of the Act reads: "Notwithstanding anything contained in Sub-section (1), a Regional Transport Authority of one region may issue a temporary permit under Section 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 may be."� In view of the above provision the grant of inter district temporary permit can be valid only where there is prior concurrence from the sister authority. An identical question had been considered by a Single Bench of this Court in Benny Mathew v. Mohanan 1999 (2) KLT 595 . There it was held: "On a combined reading of Sections 87 and 88(7) and Rule 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 counter-signature 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 Section 87(1) of the Act, and also for a permit to be issued under Section 87(1)(b) of the Act."� It was further held therein that delegation of powers can only be under Sections 87 and 88(7) of the Act. I fully agree with the above approach made by the learned Single Judge. In view of Rule 170 of the Rules, the grant of temporary permit for 20 days in an inter-district route shall be valid without counter-signature. Such grant should be by the RTA. The powers under Rule 170 of the Rules cannot be delegated to the Secretary under Rule 133 of the Rules. The question whether the power of the RTA under Rule 170 can be delegated to the Secretary, is covered by a decision of a Division Bench decision of this Court in Hameed v. Ashokan I (2000) ACC 130 : 1999 (3) KLT 527 . There it was held: "Power under Rule 170 is exercisable only by the Regional Transport Authority as provided by Rule 170 and has not been delegated under Rule 133 of the Rules. We, therefore, hold that only the concerned Regional Transport Authority of the region is competent to consider, decide and grant the temporary permit under Rule 170 of the Kerala Motor Vehicles Rules and not the Secretary, R.T.A."� The Secretary, RTA does not have jurisdiction to grant temporary permit for four months in respect of an inter-district route without prior concurrence of the sister authority and the order granting temporary permit in the absence of prior concurrence cannot be sustained as it is without any authority. Hence, Exhibit P2 order is liable to be set aside. 5. The learned Counsel for the third respondent submitted that the petitioner is not competent to challenge the order and even if the order is not in accordance with law, his remedy is to challenge it before the appropriate Forum and not by approaching this Court by preferring a writ under Article 226 of the Constitution of India. 5. The learned Counsel for the third respondent submitted that the petitioner is not competent to challenge the order and even if the order is not in accordance with law, his remedy is to challenge it before the appropriate Forum and not by approaching this Court by preferring a writ under Article 226 of the Constitution of India. The impugned order being passed by the Secretary, RTA without any authority or jurisdiction and it being an illegal order and the question is purely based on law, such an order can be challenged before this Court by filing an original petition under Article 226 of the Constitution of India. The matter is also covered by the decisions of this Court in Manu Kurikkal v. R.T.A. Malappuram 1999 (2) KLJ 461 , and Mohanan v. R.T.A. I (2001) ACC 330 : 2000 (1) KLJ 819 . In 1999 (2) KLJ 461 (supra) a Division Bench of this Court held: "On the question of maintainability of the writ petition, we are of the opinion that there is force and merit in the submission made by the learned Counsel for the appellant. When Exhibit P2 order was passed without jurisdiction which is a non-appealable order, a writ petition under Article 226 of the Constitution of India is the proper and effective remedy. We, therefore, hold that the writ petition under the circumstances, is the proper and effective remedy. As the challenge in the original petition was purely based on legal questions and no factual disputes are relevant to decide the question of jurisdiction, the writ petition, in our opinion, is maintainable."� In 2000 (1) KLJ 819 (supra) a Single Judge had held that the principle of locus standi of an existing operator in challenging the grant of permit should be restricted only to the grant of regular permit and not in respect of the grant of temporary permit in violation of the mandatory provisions. There it was further held that the existing operator has got a right to challenge the grant of temporary permit if the same was granted without jurisdiction and was illegal. Hence, this original petition is maintainable. In the result, this original petition is allowed. Exhibit P2 order passed by the second respondent, Secretary, RTA, Palakkad is set aside.