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2013 DIGILAW 532 (KER)

Renjith v. Joint Regional Transport Officer

2013-06-27

A.M.SHAFFIQUE

body2013
JUDGMENT : Petitioner challenges Ext. P9 order passed by the Deputy Transport Commissioner in an appeal filed by the petitioner challenging an order passed by the original authority at Ext. P3 refusing to approve alteration of the vehicle as a national permit carrier. The petitioner's vehicle KL-47/C 6338 is registered under the category of heavy goods vehicle. The petitioner made certain alterations so that he could use the said vehicle for national permit also. On inspection of the vehicle after alteration the Assistant Motor Vehicle Inspector reported that sufficient space is not available in the driver's cabin for providing a seat across its full width behind the driver's seat for spare driver to stretch himself and sleep which is a mandatory requirement in terms of Rule 90(4) of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as the 'Rules'). On this basis Ext. P3 order came to be issued and the request of the petitioner for alteration of the class of the vehicle as national permit was returned. The petitioner preferred an appeal as Ext. P4. In the appeal the petitioner referred to the numbers of various other vehicles of the similar make which had been granted national permit and those are plying as national permit as on the date of filing the appeal. When the appeal was not disposed of, the petitioner filed W.P.(C) No.10270/2013 before this Court and by the judgment dated 10.04.2013, this Court directed the appeal to be disposed of as early as possible. 2. The appellate authority also formed an opinion that the petitioner has to comply with the provisions of Rule 90(4) of the Rules in order to obtain a national permit and therefore the alteration now made does not qualify for approval. During the course of appeal the petitioner had pointed out various instances by which several vehicles of similar make was given national permit and Ext. P5 and P7 series are the documents relating to the same. According to the petitioner when several authorities have granted national permit for similar vehicles without insisting for the compliance of Rule 90(4) of the Rules, the 1st respondent alone has insisted for compliance of Rule 90(4) of the Rules, when the very make of the vehicle is not adapted for such compliance. According to the petitioner when several authorities have granted national permit for similar vehicles without insisting for the compliance of Rule 90(4) of the Rules, the 1st respondent alone has insisted for compliance of Rule 90(4) of the Rules, when the very make of the vehicle is not adapted for such compliance. This according to the petitioner amounts to hostile discrimination and therefore the appellate authority ought to have considered the matter and directed the 1st respondent to accept the alteration of the vehicle for the purpose of using the same for national permit. 3. Counter affidavit is filed by the 1st respondent inter alia supporting the stand taken in Exts.P3 and P9. According to them the compliance of Rule 90(4) of the Rules has to be mandatorily complied with, such a provision has been incorporated considering the road safety and driving during the long distance travels by national permit vehicles. The concept behind providing a facility for a driver to stretch himself and sleep is to provide a spare driver for long distance driving especially for a national permit vehicle. In fact according to the petitioner he had made some changes in the vehicle to arrange enough space for a driver to stretch his legs by removing the additional seats provided. This also according to the respondents is against the stipulation under Rule 90(4) of the Rules and cannot be condoned at all. In regard to the allegation of hostile discrimination it is mentioned that similar type of vehicle was neither given registration as a national permit vehicle by the 1st respondent at any point of time. 4. Heard the learned counsel for the petitioner and the learned Government Pleader appearing on behalf of the respondents. 5. The short question to be considered in this writ petition is whether the respondent authorities were justified in insisting for absolute compliance of Rule 90(4) of the Rules in order to accept the alteration made by the petitioner to the vehicle to enable him to apply for national permit. 6. Rule 90(4) of the Rules reads as under:- “90. 5. The short question to be considered in this writ petition is whether the respondent authorities were justified in insisting for absolute compliance of Rule 90(4) of the Rules in order to accept the alteration made by the petitioner to the vehicle to enable him to apply for national permit. 6. Rule 90(4) of the Rules reads as under:- “90. Additional conditions for national permit:- The national permit issued under sub-section (12) of Section 88 shall be subject to the following additional conditions, namely:- xxx (4) The vehicle shall have a minimum of two drivers and shall be provided with a seat across its full width behind the driver's seat providing facility for the spare driver to stretch himself and sleep: Provided that this sub-rule shall apply to light motor vehicle and medium goods vehicles only from a date to be notified by the Central Government.” There is no dispute regarding the fact that the petitioner's vehicle does not have the facility as provided under the Rule 90(4) of the Rules. The main contention urged by the learned counsel for the petitioner is with reference to Ext. P5 and Ext. P7 series on the premise that several authorities have granted similar permits to similar vehicles. According to the petitioner, by granting such national permits to similar vehicles the authorities may proceed on the basis that what is required was only substantial compliance and not an absolute compliance of Rule 90(4) of the Rules. According to the petitioner he had purchased the vehicle after availing financial facility from the bank and proceeding on the basis he was entitled to get national permit as evident from Ext. P5 and Ext. P7 series of documents. He had made requisite changes/alterations in accordance with the provisions of the Act for the purpose of enabling to obtain a national permit. At this point of time, especially in instance where several other persons were given national permits for similar vehicles without compliance with Rule 90(4) of the Rules. According to the petitioner he is also entitled for similar treatment. 7. On the other hand, the learned Government Pleader submits that when the matter was brought to the notice of the appellate authority especially in regard to various national permits that had been granted in this regard the appellate authority has taken cognizance in the matter and had specifically mentioned in Ext. 7. On the other hand, the learned Government Pleader submits that when the matter was brought to the notice of the appellate authority especially in regard to various national permits that had been granted in this regard the appellate authority has taken cognizance in the matter and had specifically mentioned in Ext. P9 order that steps will be taken to rectify the mistake, if any committed. 8. Having regard to the aforesaid factual circumstances and the arguments raised by the learned counsel appearing on either side I am of the view that the stipulations as contained under Rule 90 of the Rules has to be complied with in letter and spirit. Any deviation from said Rules will affect the purpose and intend for which such Rules had been framed. It is not in dispute that National permit vehicles are intended to transport goods from one state to another and they are intended to be equipped for long distance travels without any stoppage as such. In that view of the matter a strict compliance of the Rules are definitely required in order to see that the transport sector functions in a proper manner and without causing any accident or other damage to public at large. 9. That being the situation, I do not think that the transport authorities will be justified in showing any leniency in respect of specifications to be complied in terms of the Rules specified under the Central Motor Vehicles Rules with reference to the grant of national permits or any other permit as the case may be. 10. The petitioner has relied upon the judgment of Supreme Court in Vishnudas Hundumal and Others v. State of Madhya Pradesh and Others ( (1981) 2 SCC 410 ) in order to contend for the position that when there is a hostile treatment the courts are empowered to pass appropriate orders to take a constructive view to avoid discrimination by putting the petitioners in the same class with reference to the persons who enjoy the similar benefits. On a perusal of judgment, I do not think that the factual circumstances in the said case will have any application to the facts on hand in the present case. On a perusal of judgment, I do not think that the factual circumstances in the said case will have any application to the facts on hand in the present case. That apart in that case the Court had only directed that the conditions in permits curtailing the permits of the petitioners prohibiting them from passing over the overlapping portion of their route with the notified route be quashed and declared to be of no consequence till all the operators including those excluded and similarly situated are similarly treated. This judgment was happened to be passed under a different set of facts wherein a scheme came to be framed and published by the Madhya Pradesh State Transport Corporation covering certain routes. One of the contentions raised was whether the canceling/curtailing of certain permits for routes, parts of which overlapped with the notified routes when there were other permit holders in the same class having stage carriage permits for certain routes parts of which were overlapping with the notified route and in the case of petitioners their permits were curtailed prohibiting them from operating their stage carriages on that portion of the route for which they had permit which was overlapping with the notified route while others though similarly situated, were favourably treated by neither curtailing nor cancelling their permits and were permitted to ply their stage carriages on the routes for which they had permits passing over a portion of the notified route without any let or hindrance. This being the facts of the Vishnudas Hundumal's case (supra) I do not think that the said factual situation has any application to the case on hand. It is a settled proposition that the illegality committed cannot be perpetuated. This is the fundamental principle which is to be borne in mind while considering the case. 11. The learned Government pleader refers to judgment of Supreme Court in Gurusharan Singh and Others v. New Delhi Municipal Committee and Others ( AIR 1996 SC 1175 ). In Paragraph 9 of the said judgment the Supreme Court held as under :- “Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.” 12. In Paragraph 9 of the said judgment the Supreme Court held as under :- “Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.” 12. Therefore, the very concept of discrimination is a legal right to claim that certain persons had been provided with a permit which is legal and which is denied to the petitioner. That is not the situation here. Here is a case where the compliant is that certain authorities have not substantially complied with Rule 90(4) of the Rules whereas it is applied only to the petitioner. Going by the provisions of Rule 90 of the Rules it requires substantial compliance and it does not mean that no compliance at all. The petitioner cannot therefore content that he was discriminated against the persons who are permitted under Ext. P5 and P7 series as the petitioner does not have a legal right to claim a National permit overlooking Rule 90(4) of the Rules. That being the situation I do not find anything wrong with the orders passed in Ext. P3 and P9. Accordingly, this writ petition is dismissed.