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2006 DIGILAW 635 (KER)

Anoj Abraham v. The State Transport Authority

2006-09-28

K.BALAKRISHNAN NAIR

body2006
Judgment :- WPC 24227/06 The point that arises for decision in this case, is whether the State Transport Authority, by issuing administrative instructions, can fetter the discretion of the RTA in granting temporary permits under Section 87(1)(c) of the Motor Vehicles Act. The brief facts of the case are the following: 2. The petitioner is a stage carriage operator, operating on the route Kottayam-Puthenthodu. He applied for a temporary permit on the route Puthenthode-Kottayam, for a period of 20 days. But, the permit was granted, only for a period of five days, as evident from Ext.P1. The term of the permit was restricted to five days, relying on clause 4 of Ext.P2 circular issued by the State Transport authority. The relevant clause of the said circular reads as follows: “Temporary Permits under clause (c) of the section shall be granted only for a period not exceeding five days at a time.” The Petitioner submits, the above clause is plainly ultra vires of and unauthorised by the provisions of the Act. While granting a temporary permit, the RTA or the Secretary is exercising a quasi-judicial function. The said power cannot be fettered by administrative instructions like Clause 4 of Ext.P2. In support of this submission, reliance is placed on the decision of the Apex Court in B. Rajagopala Naidu v. S.T.A.T., Madras (AIR 1964 SC 1573). 3. The respondents have filed a statement, resisting the prayers in the Writ Petition. They would submit that the STA has issued the circular, in exercise of its power under Section 68(4) read with Section 68(3) of the Motor Vehicles Act. The RTAs are indiscriminately issuing temporary permits and the same is creating unnecessary competition. New entrants in the field of stage carriage operation, often obtain short term permits on various routes for testing the waters. Such operators are causing great hardship to the existing operators. So, to present such operators from getting permits and operating, the STA issued Ext.P2 circulate, it is submitted. 4. The point raised by the petitioner is squarely covered by the decision of the Apex Court in Rajagopala Naidu’s case mentioned above. I feel that none of the provisions relied on by the respondents will authorise the STA to ask the RTAs not to grant temporary permits under Section 87(1)(c) of the Motor Vehicles Act, for a period exceeding five days. I feel that none of the provisions relied on by the respondents will authorise the STA to ask the RTAs not to grant temporary permits under Section 87(1)(c) of the Motor Vehicles Act, for a period exceeding five days. Sections 68(3) and (4) of the Act read as follows: “68(3) The State Transport Authority and every Regional Transport authority shall give effect to any directions issued under section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State, the following powers and functions, namely:- (a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the State; (b) to perform the duties of a Regional Transport authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority to perform those duties in respect of any route common to two or more regions; (c) to settle all disputes and decide all matters on which differences of opinion arise between Regional Transport Authorities; and [(ca) Government to formulate routes for plying stages carriages;] (d) to discharge such other functions as may be prescribed. (4) For the purpose of exercising and discharging the powers and functions specified in sub-section (3), a State Transport authority may, subject to such conditions as may be prescribed, issue directions to any Regional Transport authority and the Regional Transport Authority shall, in the discharge of its functions under this Act, give effect to and be guided by such directions.” The power of the State Transport authority under Section 68(3)(a) is, mainly, an administrative power to co-ordinate and regulate the activities of the Regional Transport Authorities. The same does not confer any power on the State Transport Authority to interfere with the Quasi-judicial functions of the RTAs. In this context, it is apposite to quote the decision of the Apex Court in Rajagopala Naidu’s case (supra). The relevant portion of the said Judgment reads as follows: “In interpreting S.43A, 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 Tribunals 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 administrative 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 discretion conferred on a quasi-judicial authority 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 notion 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. But, what law and the provisions of law may legitimately do, cannot be permitted to be done by administrative or executive orders. This position is so well established that we are reluctant to hold that in enacting S.43-A, the Madras Legislature intended to confer power on the State Government to invade the domain of the exercise of judicial power.” The above statement of law made about Section 43A of the Motor Vehicles Act, 1939 will squarely apply to the interpretation of sub-sections (3) and (4) of Section 68 of the Motor Vehicles Act, 1988. The grant of temporary permits is dealt with under Section 87 of the Act, which reads as follows: “(1) A Regional Transport Authority and the State Transport Authority may, without following the procedure laid down in section 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 religious 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: Provided that a Regional Transport Authority or as the case may be, State Transport Authority may, in the case of goods carriages, under the circumstances of an exceptional nature and for reasons to be recorded in writing, grant a permit for a period exceeding four months, but not exceeding one year.” 5. The grant of a permit is a quasi judicial function. The same has to be exercised in accordance with the satisfaction of the RTA/Secretary concerned. No superior authority can dictate, in what manner the power vested in the RTA/Secretary, has to be exercised. If the temporary need is for a period of one month, the RTA should be conceded freedom to grant the permit for a period of one month. The STA has no authority to say that even if the temporary need exists for a period of one month, permit can be granted only for a period of five days. If the RTA, when it feel that the temporary need is for a longer period, grants permit only for five days, the same will amount to acting under dictation. Concerning the concept of dictation, learned author H.W.R. Wade, in his Administrative Law 8th edition, has stated as follows: “The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. Concerning the concept of dictation, learned author H.W.R. Wade, in his Administrative Law 8th edition, has stated as follows: “The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void.” In view of the above legal position, Ext.P1 decision of the RTA is invalid. In the light of the decision in Rajagopala Naidu’s case (supra) the Parliament cannot be intended to have conferred power on the STA to issue instructions under Section 68 to interfere with the quasi-judicial functions of the RTAs. So, the contention of the petitioner that Clause 4 of Ext.P2 is ultra vires of and unauthorised by the provisions of the Motor Vehicles Act, is upheld. Accordingly, the said clause is quashed. Any application filed by the petitioner for temporary permit shall be disposed of, ignoring Clause 4 of Ext.P2. WPC No.18282/06 6. The point raised by the petitioner herein is covered by the Judgment in Writ Petition (C) No.24427/06. Accordingly, it is ordered that the Judgment in that case will govern this case also. The Writ petitions are disposed of as above.