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2019 DIGILAW 409 (ORI)

Arabinda Mishra v. State Transport Authority

2019-06-19

BISWAJIT MOHANTY

body2019
JUDGMENT : BISWAJIT MOHANTY, J. 1. In this writ application, the petitioner calls in question the Policy decision at Item No.3 taken by the State Transport Authority, Odisha in its 287th Meeting on 22.01.2019 under Annexure-3 whereby the Secretary, Regional Transport Authorities have been authorised to issue and renew National Permit and issue authorisation in respect of goods carriages. 2. The petitioner is a transport operator engaged in goods transport on the strength of goods carriage permit as well as National Permit granted by the State Transport Authority, for short "STA". The last authorisation of National Permit granted in respect of his vehicle bearing Registration No.OD-16A-8353 was valid till 10.4.2019 as per Annexure-1. On 13.3.2019, i.e., much prior to expiry of the above noted validity period, the petitioner applied for authorisation and National Permit before the Chairman, STA (opposite party no.2) in Form-46. However, the said application was not received by the Secretary, STA (opposite party no.3) on the ground that as per the Policy decision under Anexure-3 as indicated earlier the application for National Permit has to be made before the Secretary, Regional Transport Authorities of the concerned region. Questioning such action, the petitioner has filed this present writ application. 3. Mr. Behera, learned counsel for the petitioner contended that such action of the opposite party no.3 directly violates the mandate of Sub-Rule (5) of Rule 43 and Sub-Rules (9) & (10) of Rule 47 of the Orissa Motor Vehicles Rules, 1993, for short "OMV Rules". According to Mr. Behera as per the above noted Rules, application for grant of National Permit is to be made to the STA and STA is the appropriate authority to dispose of such application. In such background, he attacked the impugned Policy decision under Annexure-3 which divests such power of STA and invests such power only in the Regional Transport Authorities, for short, "R.T.As". Accordingly, he prayed that the Policy decision of Clause-3.1 under Item No.3 of Annexure-3 be quashed. 4. Mr. Sharma, leaned Standing Counsel, Transport submitted that vide Clause-3.1 of the policy decision under Item No.3 of Annexure-3 nothing new has been done. It only states the obvious which is in tune with the statutory provisions of the Motor Vehicles Act, 1988, for short "the Act". 4. Mr. Sharma, leaned Standing Counsel, Transport submitted that vide Clause-3.1 of the policy decision under Item No.3 of Annexure-3 nothing new has been done. It only states the obvious which is in tune with the statutory provisions of the Motor Vehicles Act, 1988, for short "the Act". According to him the subject matter of grant of National Permit in respect of goods carriages has been dealt with at Sub-Section (12) of Section 88 of "the Act" which makes it clear that the appropriate authority may for the purpose of encouraging long distance inter-state road transport grant National Permit in respect of goods carriages subject to Rules that may made by the Central Government under Sub-Section (14) of Section 88 of "the Act". Further relying on the Explanation to Section 88 of "the Act", he submitted that Explanation (c) defines "National Permit" to be a permit granted by the appropriate authority to goods carriages to operate through out the country or in such contiguous States not less than four in number including the State in which the permit is issued as maybe specified in such permit in accordance with the choice indicated in the application. Now with regard to phrase "appropriate authority" as used in Explanation (c), he drew attention of this Court to definition of appropriate authority as indicated at Explanation (a) to Section 88 of "the Act" according to which the appropriate authority in relation to a National Permit means the authority which is authorised under "the Act" to grant a goods carriage permit. According to him as per Sub-Section (1) of Section 79 of "the Act" only Regional Transport Authority (RTA) has been authorised to grant a goods carriages permit. In such background, he contended that a conjoint reading of Sub Section (1) of Section 79 and the earlier noted provisions of Section 88 of "the Act" would make it clear that R.T.As. are the appropriate authorities under "the Act" for granting National Permit and none else. Therefore, he submitted that Clause3.1 of Annexure-3 of Item No.3 containing the Policy decision which indicates that henceforth R.T.A. would be dealing with the matter of issuance of renewal of National Permit cannot be said to be legally vulnerable as this is in tune with the above noted provisions of "the Act". Therefore, he submitted that Clause3.1 of Annexure-3 of Item No.3 containing the Policy decision which indicates that henceforth R.T.A. would be dealing with the matter of issuance of renewal of National Permit cannot be said to be legally vulnerable as this is in tune with the above noted provisions of "the Act". With regard to the provisions of Sub-Rule (5) of Rule 43 and Sub-Rules (9) & (10) of Rule 47 of "OMV Rules" he submitted that these provisions should be ignored in the matter relating to grant of National Permit to goods carriages on the face of relevant provisions of "the Act" under Section 79 and Section 88, as provisions of the "OMV Rules" cannot override the provisions of "the Act". He further submitted that the above noted rules cannot be operational in absence of Gazettee notification under Sub Section (2) of Section 69 of "the Act" read with Rule 86 of the Central Motor Vehicles Rules, 1989, for short, "CMV Rules". Secondly, he submitted that now in tune with the above noted statutory provisions of "the Act", the grant of National Permit has been decentralised so that operator from all over Odisha need not approach STA at Cuttack and they can get the National Permit from R.T.As. at district levels. Thirdly, he submitted that the petitioner has not been able to show any prejudice which would be caused to him in case he applies for a National Permit with R.T.A. at Sundargarh which is much nearer to his living place. If he is really interested in getting National Permit he should have applied before the R.T.A., Sundargarh without unnecessarily wasting time by challenging an action which is beneficial to him. In such background, he submitted that the writ application is without any merit and should be dismissed. 5. In order to appreciate the rival contentions, this Court thinks it appropriate to refer to the following relevant provisions of "the Act", "OMV Rules" and "CMV Rules": Provisions of "the Act" "69. In such background, he submitted that the writ application is without any merit and should be dismissed. 5. In order to appreciate the rival contentions, this Court thinks it appropriate to refer to the following relevant provisions of "the Act", "OMV Rules" and "CMV Rules": Provisions of "the Act" "69. General Provision as to applications for permits - (1) Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles: Provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles: Provided further that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, the application shall be made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business. (2) Notwithstanding anything contained in Sub-section (1), the State Government may, by notification in the Official Gazette, direct that in the case of any vehicles or vehicle proposed to be used I two or more regions lying in different States, the application under that Sub-section shall be made to the State Transport Authority of the region in which the applicant resides or has his principal place of business. Section 88 - Validation of permits for use outside region in which granted - (1) to (11) xxx xxx xxx (12) Notwithstanding anything contained in sub-section (1), but, subject to the rules that may be made by the Central Government under sub - section (14), the appropriate authority may, for the purpose of encouraging long distance inter-State road transport, grant in a State, national permits in respect of goods carriages and the provisions of section 69, 77, 79, 80, 81, 82, 83, 84, 85, 86 [clause (d) of Sub-section (1) of Section 87 and Section 89] shall, as far as may be apply to or in relation to the grant of national permits. (13) xxx xxx xxx (14) (a) The Central Government may make rules for carrying out the provisions of this Section. (b) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely : (i) the authorisation fee payable for the issue of a permit referred to in sub- section (9) and (12) ; (ii) the fixation of the laden weight of the motor vehicle; (iii) the distinguishing particulars or marks to be carried or exhibited in or on the motor vehicle ; (iii) the colour or colours in which the motor vehicle is to be painted ; (iv) such other matters as the appropriate authority shall consider in granting a national permit. Explanation :- In this Section, - (a) "appropriate authority", in relation to a national permit, means the authority which is authorised under this Act to grant a goods carriage permit ; (b) xxx xxx xxx (c) "national permit" means a permit granted by the appropriate authority to goods carriages to operate throughout the territory of India or in such contiguous States not being less than four in number, including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application. Section 79 - Grant of goods carriage permit : (1) A Regional Transport Authority may, on an application made to it under section 77, grant a goods carriage permit to be valid throughout the State or in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: 109 Provided that no such permit shall be granted in respect of any area or route not specified in the application. (2) & (3) xxx xxx xxx." The relevant provisions of "OMV Rules" read as follows: "Rule 43. Disposal of application for permits :- (1) to (4) xxx xxx xxx (5) The disposal of an application in relation to a national permit shall be made by the State Transport Authority. (2) & (3) xxx xxx xxx." The relevant provisions of "OMV Rules" read as follows: "Rule 43. Disposal of application for permits :- (1) to (4) xxx xxx xxx (5) The disposal of an application in relation to a national permit shall be made by the State Transport Authority. Rule 47 Area of validity of the permit and extension thereof: - (1) to (8) xxx xxx xxx (9) Every application for the grant of a national permit in respect of a goods carriage shall be made to the State Transport Authority in form accompanied by the fee as prescribed in rule 86 and 87 of Central Motor Vehicle Rules, 1989. (10) On receipt of an application under sub-rule (9), the State Transport Authority shall follow the same procedure in considering the application as for the grant of a goods carriage permit under the Act and these rules and may grant the permit in the prescribed form." The relevant provision of "CMV Rules" reads as follows: "Rule 86. Application for national permit.- An application for the grant of a national permit shall be made in Form 48 to the authority referred to in section 69." A perusal of Explanation (c) to Section 88 of "the Act" shows that it defines National Permit as a permit which is granted by the appropriate authority to goods carriages so as to enable those to operate through out the country or in such contiguous States including the State in which the permit is issued. Appropriate Authority in relation to National Permit has been defined at Explanation (a) to indicate the same to be an authority which is authorised under "the Act" to grant of goods carriage permit. Sub-Section (1) of Section 79 of "OMV Rules" clearly shows that goods carriage permit can only be granted by the Regional Transport Authority (RTA). A conjoint reading of above provisions of "the Act" makes it clear that for the purpose of issuance of National Permit, RTA is the appropriate authority under the provisions of "the Act". 6. Now, let us focus our attention on Sub-section (12) of Section 88 of "the Act". The said Sub-section indicates that appropriate authority can grant National Permit subject to rules made by Central Government and while granting such permit, various provisions of "the Act" as indicated therein shall as far as may apply. 6. Now, let us focus our attention on Sub-section (12) of Section 88 of "the Act". The said Sub-section indicates that appropriate authority can grant National Permit subject to rules made by Central Government and while granting such permit, various provisions of "the Act" as indicated therein shall as far as may apply. Rule 86 of "CMV Rules" as quoted earlier is the relevant rule for our purpose. It says that application for grant of National Permit shall be made to the authority referred to at Section 69 of "the Act". Section 69 of "the Act", which deals with general provision for application for permits in its Sub-Section (1) also speaks about RTA as the appropriate authority to which application for permit is to be made. Though sub-Section (2) of Section 69 of "the Act" permits making of an application for permit before STA, however, the same is made dependent upon issuance of a Notification to that effect by the State Government in Official Gazette. According to Mr. Sharma so far as State of Odisha is concerned, no such Gazette Notification exists under Sub-Section (2) of Section 69 of "the Act". Therefore, for the State of Odisha an application for grant of National Permit has to be made only to RTA. Had there been a Gazette Notification under Sub-section (2) of Section 69 of "the Act", then things would have been different. In such background in the humble opinion of this Court, till Gazette Notification under Sub-section (2) of Section 69 of "the Act", authorising STA in the matter is published; RTA would continue to be the sole authority for granting National Permit. Sub Rule (5) of Rule 43 (5) and Sub Rules (9) and (10) of Rule 47 of "OMV Rules" cannot override the provisions of "the Act" as indicated earlier, which authorise only RTA to grant National Permit. These Sub Rules can only operate after Gazette under Sub-section (2) of Section 69 of "the Act" is published authorising STA to grant permit and not otherwise. So, for all purposes it is clear that at present, RTA is the appropriate authority to grant National Permit. These Sub Rules can only operate after Gazette under Sub-section (2) of Section 69 of "the Act" is published authorising STA to grant permit and not otherwise. So, for all purposes it is clear that at present, RTA is the appropriate authority to grant National Permit. With regard to various provision of "the Act" referred to in Sub-section (12) of Section 88; keeping in mind the use of phrase "as far as may be apply" in the said Sub-section in connection with such provisions, it can safely be concluded that RTA can take help of the said provisions/any of the said provisions while granting National Permit as and when required. In such background, it is reiterated that from a conjoint reading of Clauses (a) and (c) of Explanation to Section 88 read with Sub-section (1) of Section 79 of "the Act", it is clear that at present RTA is the appropriate authority for issuing National Permit. In such view of the matter, this Court is of the opinion that vide the impugned policy decision at clause 3.1 under the heading Item No.3 at Annexure-3, nothing new has been introduced. Probably it has stopped an old practice which was in not tune with the requirements of provisions of "the Act" as indicated and discussed above relating to issuance of National Permit. Further as rightly contended by Mr. Sharma by asking the operators to approach the RTAs, no prejudice can be said to have been caused to the petitioner. Rather it would be beneficial to the petitioner as now he can get National Permit for his goods carriages nearer home from the district headquarter. 7. For all these reasons, this Court finds no merit in this writ application, which is accordingly dismissed.