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Kerala High Court · body

2014 DIGILAW 204 (KER)

Rajesh v. Secretary, Regional Transport Authority

2014-03-04

K.VINOD CHANDRAN

body2014
JUDGMENT : 1. The grievance ventilated by the various petitioners herein are with respect to the refusal to grant contract carriage permit under the Motor Vehicles Act, 1988 (for brevity “the Act”) and the denial of consideration of requests made for change of parking place with respect to permits already issued. 2. The above batch of Writ Petitions were posted together, since the issue of refusal to grant contract carriage permits to autorickshaws were many a time raised before this Court. This Court had, on many occasions, found that unless the Government restricts the number of permits to be issued, within an area by way of a notification, under S.74(3)(a) of the Act, it is not permissible for the Regional Transport Officer or the Regional Transport Authority to impose restrictions by themselves. The Government sought to draw a distinction, in so far as, such judgments curtailed the discretion granted to the authority constituted under the enactment. 3. It is not disputed that this Court has in recent times; repeatedly and consistently, spoken about such restriction not being permissible unless by way of a notification as is indicated in Exhibit P3 judgment produced in W.P.(C).No.3998 of 2014. That is a judgment in W.P.(C).No.19817 of 2013 dated 25.9.2013, wherein it was held so: “2. In fact, a learned Single Judge of this Court had considered the very same issue with respect to an order passed by the Secretary, R.T.A, Malappuram itself in W.P.(C).No.13912 of 2013. The contention that in the absence of a notification under S.74(3)(a) of the Motor Vehicles Act, 1988, it is not permissible for the Regional Transport Officer or the RTA to impose restrictions in issuing permits in the Municipal area was accepted by the Court. While reserving the right of the Government to issue a notification bringing in such restriction, the reasons stated by the R.T.A. for refusal of grant of permit was found to be extraneous, especially since a notification in that respect was absent. It was categorically held that the scheme of the Act and the provisions thereunder interdict any such restriction, which would in fact result in infringing the fundamental rights of the persons residing in the area. It was categorically held that the scheme of the Act and the provisions thereunder interdict any such restriction, which would in fact result in infringing the fundamental rights of the persons residing in the area. In the light of the binding precedent, Exhibit P5 order is set aside and the 1st respondent is directed to pass appropriate orders issuing the permit as applied for, within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is allowed. No costs”. 4. The learned counsel appearing for the various petitioners would urge that the matter is no longer res integra and in the teeth of such binding precedent, seek that the Writ Petitions be allowed, issuing appropriate directions to the authority under the Act to make and issue the grant and also permit change of parking places as requested. 5. The learned Government Pleader, however, would contend that an unlimited mandate to grant contract carriage permits would in fact impede public interest and it is on consideration of over-crowding of Municipal areas, as also the congestion caused by indiscriminate parking of autorickshaws, that, such restrictions were imposed by the Regional Transport Authorities, limiting the issue of contract carriage permits. 6. This Court was convinced that, prima facie the provision on which and the principle which weighed with this Court in directing such grant, in the absence of a notification under S.74(3)(a) of the Act; needed a fresh look. This Court appointed Sri. P. Deepak as Amicus Curiae. This Court has heard the various counsel appearing for the petitioners, the learned Government Pleader as also the learned Amicus Curiae. 7. Section 74(3)(a) of the Act provides for a restriction in the number of contract carriages, operating on city routes in towns with a population of not less than five lakhs and also mandates such restriction to be brought in by the State Government, by notification and as directed by the Central Government. It is also pertinent that sub-clause (a) permits such restriction by notification, only in towns with a population exceeding five lakhs. It is an admitted fact that except in the three cities, being Thiruvananthapuram, Kochi and Kozhikode, there is no town within the State of Kerala with population exceeding five lakhs. It is also pertinent that sub-clause (a) permits such restriction by notification, only in towns with a population exceeding five lakhs. It is an admitted fact that except in the three cities, being Thiruvananthapuram, Kochi and Kozhikode, there is no town within the State of Kerala with population exceeding five lakhs. A question could be raised as to the wisdom behind such prescription, since the more, the population, the more, the need for public transport. To prohibit limitation of permits, in the event of lesser population, would in fact work against the spirit of such restriction, which intends to balance the need for quick and prompt transport service; enuring to the benefit of the travelling public and the number of vehicles, road conditions and other relevant factors. But, however, this Court cannot ponder on the legislative wisdom and the provision, as it exists, has to be given effect, in the event of there being no ambiguity or travesty of law. 8. It is based on the above provision, it has been found by this Court that; sans a notification limiting the number of permits, by the State Government, there could be no such limit and refusal to grant permits by a Regional Transport Authority or the State Transport Authority would be violative of the provisions of the Act. The directions of the Transport Commissioner, according to the learned counsel for the petitioners, again, has absolutely no statutory backing, since the Transport Commissioner is the administrative head and cannot, by reason only of his heading the Transport Department, usurp to himself the powers conferred on the State Government by the enactment. 9. The learned counsel for the petitioners would urge, on the strength of the decision in Mithilesh Garg v. Union of India ( AIR 1992 SC 443 ), that the Hon’ble Supreme Court had noticed the liberalized scheme brought in under the new enactment of 1988; while under the earlier enactment of 1939, the Regional Transport Authorities were enjoined upon to decide the applications for grant of permits keeping in view the criteria laid down in S.47(1) and the limit fixed under S.47(3). By the new enactment, the above features were completely effaced. The new enactment brought in, a liberalized scheme and the Supreme Court has emphasized the fact that a permit has to be issued for the mere asking, is the argument. 10. By the new enactment, the above features were completely effaced. The new enactment brought in, a liberalized scheme and the Supreme Court has emphasized the fact that a permit has to be issued for the mere asking, is the argument. 10. The learned Amicus Curiae, however, would tread a different path and distinguish between the right of a rival operator to object to the grant and the discretion conferred on the authority in issuing or refusing such grant. 11. As was noticed above, S.74 deals with the grant of contract carriage permits and sub-clause (a) of sub-s.(3) deals with the power to limit the number, only as provided therein and on the conditions stipulated thereon. Similar is the provision with respect to stage carriage permits as provided under S. 71(3)(a). Hence, the decisions with respect to stage carriage permits would squarely apply in the case of contract carriage permits also. The “procedure to be applied for and granting permits”; again applicable to both stage carriages and contract carriages are provided in S.80. Sub-s.(2) of S.80 provides that a Regional Transport Authority, State Transport Authority or any prescribed authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. The first proviso also speaks of instances in which summary refusal can be made by the authority; those instances being the existence of a notification under S. 71(3)(a), 74(3)(a) and a grant exceeding the limit specified therein. The second proviso further provides for refusal of an application for the grant of a permit to be made in writing after an opportunity is granted to the applicant. 12. A reading of S.80 would, hence, indicate that, an application for grant of permit could be summarily rejected only in the event of the grant resulting in the limits specified in a notification under S.71(3)(a) or S.74(3)(a) being exceeded, which summary rejection is provided for in the first proviso. The sub-section which speaks of the procedure for grant does not oblige the authority, to grant and issue permits whenever an application is made. On the contrary, it provides that the authority shall not ordinarily refuse the grant of a permit. This would only indicate that the Parliament had envisaged a situation in which such refusal would be possible. The sub-section which speaks of the procedure for grant does not oblige the authority, to grant and issue permits whenever an application is made. On the contrary, it provides that the authority shall not ordinarily refuse the grant of a permit. This would only indicate that the Parliament had envisaged a situation in which such refusal would be possible. It could not, also, be said that such refusal is possible only in the event of a notification as provided under Ss.71(3)(a) and 74(3)(a), since, by the proviso, power was conferred on the authority to summarily refuse a grant in the event of such grant exceeding the limit prescribed under a notification. The summary rejection, hence, would not even need a reasoning. 13. The Parliament further provided that in the event of a refusal to grant an application, the authority shall give the applicant, in writing, its reasons for such refusal and an opportunity before the refusal itself is effected in writing. Again it cannot be said that the second proviso to sub-s.(2) of S.80 is confined to a case in which the grant would exceed the limit of a notification. Sub-s.(2) and the provisos, hence, indicate that the Parliament definitely took note of a situation in which a Regional Transport Authority, State Transport Authority or any prescribed authority would have to exercise its discretion, to decide on the grant or refusal of a permit; when an application is made. The scheme, being ordinarily a prohibition against refusal; read with the proviso permitting summary refusal, as also the proviso for refusal with reasoning; makes it clear that the Regional Transport Authority has an amount of discretion in considering the application for permits, whether it be stage carriage or contract carriage. 14. Having gone through the various judgments placed before this Court by the petitioners in W.P.(C).No.34871 of 2010 dated 05.01.2012, W.P.(C).No.18283 of 2012 dated 30.11.2012, W.P.(C).No.13912 of 2013 dated 22.07.2013 and W.P.(C).No.19817 of 2013 dated 25.09.2013, it is to be noticed that this Court on various occasions, while holding that the restriction could only be by a notification under S.71(3)(a), did not notice the provisions in S.80. In such circumstance, this Court is of the definite opinion that the matter need not be referred to a larger Bench. 15. In this context, the distinction pointed out by the learned Amicus Curiae would assume significance. In such circumstance, this Court is of the definite opinion that the matter need not be referred to a larger Bench. 15. In this context, the distinction pointed out by the learned Amicus Curiae would assume significance. True, a liberalized scheme was brought in and as was noticed in Mithilesh Garg (supra), the scheme envisaged under Ss.47 and 57 of the old Act has been completely done away with, by the new enactment. “The right of existing operators to file objections and the provision to impose limit on the number of permits have been taken away” (sic). S.71(1) was noticed and S.80(2) was termed as the “harbinger of liberalisation”, wherein the provision was ordinarily against refusal. The limit as provided under S.47(3) of the old Act was found to have been completely effaced and a new provision made under S.71(3)(a) for providing limits to the number of permits. Hence, the liberalized scheme, as indicated by the Hon’ble Supreme Court, was with respect of the fact that there could be no limit prescribed by the authorities under the Act; nor even by the State, unless by or under a notification and no rival operator could file an objection against a grant. 16. But that, however, is not to say that the Regional Transport Authority has no discretion in refusing the grant. In fact, the Hon’ble Supreme Court in Mithilesh Garg (supra) said so in paragraph 14: “The petitioners have further contended that the conditions of roads, social status of the applicants, possibility of small operators being eliminated by big operators, conditions of hilly routes, fuel availability and pollution control are some of the important factors which the Regional Transport Authority is bound to take into consideration while taking a decision on an application for grant, of permit. These are the matters which are supposed to be within the comprehension of the transport authorities. The legislative policy under the Act cannot be challenged on these grounds. It is not disputed that the Regional Transport Authority has the power under the Act to refuse an application for grant of permit by giving reasons. It is for the authority to take into, consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits. It is not disputed that the Regional Transport Authority has the power under the Act to refuse an application for grant of permit by giving reasons. It is for the authority to take into, consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits. The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of power in granting permits under the liberalised policy”. 17. A learned Single Judge of this Court in Joseph Chacko v. Regional Transport Authority, Kottayam (AIR 2000 Ker.356) held so: “A Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act. It may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages. Thus, the Regional Transport Authority have the discretion to refuse to grant a permit. In case the permit is refused to be granted, reasons have to be stated. In these cases, the number of permits has not been restricted by any order of the Government. Respondents cannot merely refuse to grant a permit on the ground that there are number of operators operating on the route and that the route is oversaturated”. The learned Single Judge also specifically noticed paragraph 14 of the decision in Mithilesh Garg (supra) and found that: “The primary duty for the Regional Transport Authority is to find out whether the issue of permit is necessary for the travelling public”. 18. Though only of persuasive import, a Division Bench of the Calcutta High Court in State of West Bengal & Ors. v. Kalyan Chakrabarty ( 2006 (4) CHN 578 ), while declining to interfere with a similar issue, where an applicant for an autorickshaw permit claimed an unfettered right to get a permit under S.74, held so in paragraphs 25 and 30: “25. The Court is, however, called upon to decide as to whether the authority concerned while discharging its duty acted with fairness and impartiality or not. As a public authority, its duty is to decide in accordance with law and to exercise discretion reasonably. It has the further duty to come to a reasonable decision. It has also the duty to hold the balance fairly. As a public authority, its duty is to decide in accordance with law and to exercise discretion reasonably. It has the further duty to come to a reasonable decision. It has also the duty to hold the balance fairly. In the case under reference, the request for grant of permit was, no doubt, turned down again and again may be for different reasons. On the last occasion, it was refused on the ground that the route for which such permit was sought for is congested. The question arises as to whether the Regional Transport Authority has any discretion or not. We are afraid that the authority cannot be left to function without any power to exercise discretion - of course, on valid grounds.There are occasions when the Court must resist the temptation to interfere. It cannot be denied that within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. The Court must strive to apply an objective standard which leave to the deciding authority the full range of choices which the Legislature is presumed to have intended. xxx xxx xxx 30. Considering all such facts and circumstances and having regard to the aforesaid discussion we are of the opinion that the respondent cannot be said to have unfettered right to get a permit for operating an Auto-Rickshaw in the route for which application was made. The right under S.74 of the Motor Vehicles Act, 1988 is also subject to reasonable restrictions. Such restrictions may emanate from various sources which include a subsequent change of situation arising out of too little space for too many vehicles, congestion, pollution, road conditions, public conveyance and so on and so forth”. 19. On the reasoning above, as also the precedents noticed, it has to be unequivocally found and declared that the Regional Transport Authority or any other prescribed authority while considering the grant of permit, whether it be a stage carriage or a contract carriage permit, is not statutorily shackled by an unfettered right on the part of the applicant to be granted a permit. It is conferred with the power to summarily refuse in the event of the grant exceeding the limit of a notification issued by the State Government. Again it cannot be gainsaid that; that alone would be the solitary instance where the grant could be refused. It is conferred with the power to summarily refuse in the event of the grant exceeding the limit of a notification issued by the State Government. Again it cannot be gainsaid that; that alone would be the solitary instance where the grant could be refused. The mere existence of a number of permits and the decision by the Regional Transport Authority or a higher authority to restrict the grant based on numbers alone would fall foul, since such limits could be prescribed only by the State Government under a notification. But necessarily, the authority could take into account the population in an area, the need for public transport, the mode of transport ordinarily used by the majority of the residents of an area, the number of roads and the condition of such roads, the traffic congestion caused by indiscriminate parking and so on and so forth in considering the applications. These are all significant and relevant factors which could be taken into account by the authority who considers the individual application for grant of a permit. 20. But, the Regional Transport Authority, even on such consideration, could not make a general order that only a certain number of permits would be granted in an area, which, as noticed above, would, as the provisions now stand, be an usurpation of the powers specifically assigned to the State Government by the enactment. Each of such applications would have to be considered individually, failing which the opportunity specifically conferred on the applicant for a hearing, before a refusal under the second proviso of sub-s.(2) of S.80 would be rendered otiose; when general orders are passed. 21. In giving such interpretation, I am fortified by the judgment of K.T. Thomas, J. (as he then was) in Joshy Raphael v. R.T.A. & Ors. ( 1991 (1) KLT 288 ). The word “ordinarily” used in sub-s.(2) of S.80 was held as not having the meaning of “invariably”. It was found to mean only that, in majority of cases refusal would not be made and imports a certain degree of elasticity to the rule. With respect to the discretion conferred on the Regional Transport Authority to grant or refuse a stage carriage permit, it was held so in paragraph 7: “The second proviso to S.80 obliges the Transport Authority to give reasons in writing for refusal of the application. With respect to the discretion conferred on the Regional Transport Authority to grant or refuse a stage carriage permit, it was held so in paragraph 7: “The second proviso to S.80 obliges the Transport Authority to give reasons in writing for refusal of the application. This shows that the application can be dismissed if there are good reasons for doing so. S.71(2) mandates that the Transport Authority shall refuse to grant a permit on the ground mentioned herein. It does not mean that the Transport Authority has no power to refuse on any other ground. S.72(1) confers a discretion on the Transport Authority to grant a stage carriage permit or to refuse to grant a permit. This discretion is subject to the condition that the Transport Authority shall give its reasons for refusal in writing after giving an opportunity of being heard. The Transport Authority has, under the new Act, wide discretion in the matter. In exercising the discretion, the Transport Authority has to consider all relevant factors. The Act does not exhaust the relevant factors which a Regional Transport Authority may take into account in exercising the discretion. What is relevant for consideration in such exercise depends upon facts in each case and on each application. But the argument that a Regional Transport Authority has no power to dismiss an application (except on the grounds specified in the Act) is not correct”. 22. That was a case in which a project report submitted by National Transportation Planning and Research Centre (NATPAC) was relied upon to refuse the grant. Such a refusal was held to be bad, since the report had no statutory force and since there was nothing to show that the Government have accepted the report. Though it was held that the report would be one of the factors, which could be taken into account by the Transport Authorities, treating the said report as the final word was held to be bad. The matter was remanded for fresh consideration by the Transport Authority. 23. In the above view of the matter, the applications are to be considered on its individual merits and the grant is the rule, while refusal the exception. The matter was remanded for fresh consideration by the Transport Authority. 23. In the above view of the matter, the applications are to be considered on its individual merits and the grant is the rule, while refusal the exception. When making such refusal, it is the statutory mandate that, an opportunity for hearing is granted and there is a further mandate in so far as the refusal being in writing and speaking loud and clear about the reasons for such refusal. The principles laid down for a grant or refusal would equally apply in the case of an application for variation, especially so when sub-s.(3) of S.80 provides for consideration of such applications as if the same is an application for the grant of a new permit. 24. W.P.(C).No.3998 of 2014 raised the issue of refusal of grant on the basis of an order of the Transport Commissioner restricting the grant of permits in Cities, Corporations and Municipalities within the State. Exhibit P2 is the order refusing the grant quoting the order of the Transport Commissioner, which necessarily has to be set aside on the basis of the declaration made by this Court in this judgment. The Transport Commissioner cannot fetter the discretion conferred on the Regional Transport Authority, by the statute; as specifically noticed in Mithilesh Garg (supra) by the Hon’ble Supreme Court. Exhibit P2 is, hence, set aside and there shall be a direction to the 1st respondent to place the application of the petitioner before the concerned Regional Transport Authority. 25. The other Writ Petitions deal with issue of variation of condition of permit. The petitioners therein are valid permit holders who seek for the variation of halting place/parking place from one point to another. W.P.(C).Nos.28379 of 2013, 30768 of 2013, 30998 of 2013, 31028 of 2013, 31070 of 2013, 31079 of 2013, 31199 of 2013, 31245 of 2013 and 31262 of 2013 speak of instances where the applications for variation of condition of permits, produced in all the said Writ Petitions, were returned with the endorsement that no new applications are being granted as per the decision of the R.T.A., Malappuram and the decision of the Transport Commissioner, since the area to which the petitioners seek transfer is a Municipal area. The general decision taken by the R.T.A. is bad for the very same reason pointed out to invalidate the decision of the Transport Commissioner. The general decision taken by the R.T.A. is bad for the very same reason pointed out to invalidate the decision of the Transport Commissioner. Hence, the 2nd respondent in the said Writ Petitions, being the R.T.A., Malappuram, is directed to accept the applications and consider the same after affording an opportunity of hearing to the petitioners. 26. W.P.(C).Nos.3459 of 2014 and 3470 of 2014 again deals with the shifting of parking place. In the said cases, there was a rejection of such change in halting place sought for by the petitioners, which order was challenged before the State Transport Appellate Tribunal in appeal. Though report was called for, it is contended that before such report came, orders were passed by the Tribunal. It is also clear from the order of the Tribunal that the dismissal was for reason that the petitioner/appellant did not challenge the report of the Field Officer, which is relied on, for rejection of the applications. The petitioners point out that in fact there was a specific ground in the appeal memorandum, as is evident from Exhibit P3, wherein the Field Officer’s report and the facts noticed therein were disputed. In such circumstance, the judgment of the Tribunal, exhibited as Exhibit P4 in the respective Writ Petitions are set aside. The matter is remanded to the Tribunal for fresh consideration. 27. W.P.(C).No.3554 of 2014 only seeks a consideration of Exhibit P1 application for permit. That shall be done by the respondents on the basis of the findings rendered in this judgment. 28. W.P.(C).No.3469 of 2014 is only for consideration of Exhibit P1 application filed for grant of variation of permit. The same shall be considered in accordance with the findings rendered above. 29. In W.P.(C).No.4659 of 2014, though Exhibit P1 application was for change of halting place, the RTA treated the same to be an application for fresh permit; rightly so under sub-s.(3) of S.80, and refused the same by Exhibit P2. Though various reasons are stated in the order of rejection, the authority has indicated the decision of the RTA to limit or reject new city permits in the Corporation and that seems to be the reigning consideration for the rejection. The refusal again is without hearing the applicant. In such circumstance, Exhibit P2 is set aside for facilitating the reconsideration of the petitioner’s application. The refusal again is without hearing the applicant. In such circumstance, Exhibit P2 is set aside for facilitating the reconsideration of the petitioner’s application. It is made clear that this Court has not looked into the various reasons stated by the R.T.A. and the application made by the petitioner ought to be considered, on the principles stated in this judgment. 30. Before parting with the case, this Court places on record its appreciation, of the manner in which Sri. P. Deepak, learned Amicus Curiae adroitly argued the above case, in the true traditions of an officer of this Court. Writ Petitions disposed of as above. No costs.