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2002 DIGILAW 743 (KER)

Sunny Abraham v. The Secretary

2002-11-15

M.RAMACHANDRAN

body2002
Judgment :- The petitioner challenges Ext.P2 grant of Temporary Permit, which has been issued in favour of the second respondent, for a period of four months, on 22.07.2002. He claims to be an existing operator on the route Kaipuzhamuttu – Ernakulam. According to him, the second respondent had applied for grant of a regular permit on the route Poothotta – T.V.Puram. This had been rejected by the Regional Transport Authority, Kottayam on the ground that the route overlaps the notified route. 2. It is not disputed that the second respondent had filed an appeal against the said order and the State Transport Appellate Tribunal had allowed the appeal and directed to issue the permit. However, at the instance of the Kerala State Road Transport Corporation, the operation of the order of the STAT stands stayed in O.P.No.9790 of 2002 by order dated 26.6.2002. It is averred that thereafter the second respondent had been issued with a Temporary Permit, as referred to earlier, under section 104 of the Motor Vehicles Act. It is stated that for a considerable distance the second respondent’s service overlaps the petitioner’s route of operation. He claims that an application for a certified copy of the proceedings had been filed, but this had been issued belatedly. It is further stated that the certified copy so issued to him is Ext.P4. However, the averments in paragraph 3 of the Original Petition appear to be totally confusing. The grant of the permit is on 22.07.2002 and the application for certified copy is dated 27.08.2002. It is stated that delaying it for two months a copy was supplied on 29.09.2001. This is impossible. Ext.P4 however shows that it is a grant of Temporary Permit for 20 days. Therefore, it cannot be the permit which ahs been under challenge. No reference thereafter is made about Ext.P4. The relief is confined to a challenge of Ext.P2. The petitioner has not explained as to why such details are given. However, in these proceedings we will confine as to the justifiability of the grant of permit, evidenced by Ext.P2. 3. The contention is that the permit has been issued under section 104 of the Motor Vehicles Act. Only the Regional Transport Authority is competent to grant a permit under the said section and the power has not been delegated to the Secretary. The petitioner relies on Ext.P5 judgment for this proposition. 3. The contention is that the permit has been issued under section 104 of the Motor Vehicles Act. Only the Regional Transport Authority is competent to grant a permit under the said section and the power has not been delegated to the Secretary. The petitioner relies on Ext.P5 judgment for this proposition. In a nut shell, the submission is that the grant of permit by the Secretary, Regional Transport Authority was illegal and the proceedings are to be quashed. 4. But more details had been supplied, at the instance of the second respondent. In respect of his vehicle he had applied for the grant of a permit on the route and Ext.R2(a) is the decision rejecting the application. The reason pointed was that the route overlaps the notified route Ernakulam – Thekkady for a distance of 10 kms. This had been the subject matter of challenge and the State Transport Appellate Authority by Ext.R2(b) held that the second respondent is entitled to the grant of a regular permit and a direction had been issued to that effect. 5. The Tribunal had held that private operators are excluded from the route notified under the Ernakulam Kottayam scheme only if the proposed route would completely overlap or fall within the routes notified under Ernakulam Kottayam scheme. The route in question, according to the State Transport Appellate Tribunal did not fall within the scheme, nor did it overlap the routes notified under the scheme and therefore the objections were not sustainable. Operation of this order, however, as pointed out earlier, stands stayed. 6. The second respondent was operating on the route on the basis of a Temporary Permit earlier and it is valid up to 03.07.2002. He had submitted an application for re-issue of the permit under section 87 of the M.V.Act, by Ext.R2(d). As it was found that there was delay in processing of the application, pointing out that under section 87(2) of the Act he was entitled to a temporary permit, since the regular permit was not possible to be issued due to the stay granted and praying for expediting action he had filed O.P.No.18358/2002. This Court had, taking note of the situations, directed the Secretary, Regional transport Authority to consider the application so field. A copy of the judgment is produced as Ext.R2(e). This Court had, taking note of the situations, directed the Secretary, Regional transport Authority to consider the application so field. A copy of the judgment is produced as Ext.R2(e). Ext.P2 temporary permit had been issued consequent to such direction and according to him there was no illegality in the grant. 7. Therefore, the question is whether such grant is hit by the principles that had been laid down by the judgment in O.P.No.188358/2002. Whether it is one issued under section 87(2) of the Motor Vehicles Act or one issued under section 104 of the Act comes to be examined. 8. In Ext.P5 judgment, (in O.P.No.10388 of 2002 dated 07.06.2002) it appears that the grant of a permit had been under attack as was there in this case. The contention was also similar that the Secretary, Regional Transport Authority was incompetent to issue a permit, as applied for, since there was no delegation of power as provided in Rule 133 of the Kerala Motor Vehicles Rules. Reliance was also placed by the learned Judge on the judgment of this Court reported in 1996(2) KLT 465 Manoharan v. RTO, Ernakulam for pointing out that the permit issued under the respective sections were not identical. It was in this view that the learned Judge had interfered in the matter. 9. From a reading of the judgment, it does not appear that an objection as in the present case has been urged, that it was as a matter of fact a grant under section 87 of the Act and not under section 104 of the Act. Bearing in mind the distinction that had been drawn between the two grants, it may be examined in this case as to whether the grant is as claimed by the second respondent or one as suggested by the petitioner. 10. Bearing in mind the distinction that had been drawn between the two grants, it may be examined in this case as to whether the grant is as claimed by the second respondent or one as suggested by the petitioner. 10. Section 87(2)(i) of the Kerala Motor Vehicles Act is to the following effect: “Notwithstanding anything contained in sub-section (1), a temporary permit may be granted there under in respect of any route of area where (i) no permit could be issued under section 72 or section 74 or section 76 or section 79 in respect of that route or area by reason of an order of a court or other competent authority restraining the issue of the same, for a period not exceeding the period for which the issue of the permit has been so restrained; or” Section 104 of the Act deals with restriction on grant of permits in respect of a notified area or notified route. It is provided that where a scheme has been published under section 100(3) in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme. A proviso is also there in the section that where no application for a permit has been made by the State transport undertaking (KSRTC) in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permit to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State transport undertaking in respect of that area or route. 11. From a reading of the above two sections, it is clear that Ext.P2 grant can never be treated as one coming under section 104 of the Act. It was not a grant by the State Transport Authority or the Regional Transport Authority and as pointed out by the State Transport Appellate Tribunal, the route in question did not come within the scheme nor did it overlap any route notified under the scheme. It was not a grant by the State Transport Authority or the Regional Transport Authority and as pointed out by the State Transport Appellate Tribunal, the route in question did not come within the scheme nor did it overlap any route notified under the scheme. Further, it was evidently a grant under section 87(2) of the Act, since a permit could not have been issued under section 72, because of the reason of an order of a count restraining the issue of the same. Ext.P2 was for a period not exceeding the periods for which the issue of the permit had been restrained. The objection, according to me, is not therefore sustainable. 12. Ext.R2(c) deals with the grant made by the State Transport Appellate Tribunal and also refers to the interim order that had been passed on which reliance is placed on Ext.P1. An application for a Temporary Permit is to be made in the form prescribed under Rule 144(e) as P.Tem. However, though Ext.P2 is issued in Form P.Tem. invocation of Rule 145(c) is seen to have been made. This obviously is a mistake and therefore need not be taken serious note of. Ext.R2(e) which is the judgment which led to the permit shows that the application was for a grant under Section 87 only. The learned Judge had discussed the entire background of the case in the judgment, and submission comes without grace from the petitioner that nevertheless it is a grant under section 104. I hold that a defect of non-delegation under section 133 of the Kerala Motor Vehicles Rules is not there in respect of the present grant. The Original Petition therefore fails and it is dismissed.