Skip to content


R.K.V. Motors and Timbers Ltd. Vs. Regional Transport Authority, Trivandrum - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberO.P. No. 217 of 1959
Judge
Reported inAIR1960Ker35
ActsConstitution of India - Article 226; Motor Vehicles Act, 1939 - Sections 62 and 64
AppellantR.K.V. Motors and Timbers Ltd.
RespondentRegional Transport Authority, Trivandrum
Appellant Advocate T.N. Subramonia Iyer,; K.S. Paripoornan and; P.R. Balach
Respondent AdvocateGovt. Pleader
DispositionPetition allowed
Cases ReferredMotor Transport Society v. State of Bombay
Excerpt:
.....act, 1939 and article 226 of constitution of india - petition challenging grant of temporary permit - permit granted without ascertaining need of such permit - such order made in disregard to provisions of act - writ petition can be filed to challenge such order - impugned order set aside. - - 3. in deciding the preliminary objection, it has to be taken, that the petitioner has a good and sustainahle case on the merits. was different, as, on the merits of the case, the order sought to be quashed, was found to be perfectly valid and supportable, by reason of an amendment introduced in the act by the madras state government. if, therefore, in the exercise of his jurisdiction the authority disre-gards or violates the plain provisions of the statute i fail to see how the..........by this court whichwere mentioned by the learned counsel for the petitioner, in which temporary permits issued by theregional transport authority were quashed, arebalagangadharan v. regional transport board, 1957,ker lt 1259: (air 1958 kerala 144) and kunjumenon v. secretary. r. t. board, trichur, air 1957trav-co. 255; but m these no preliminary objectionto the competency of the petitioner under article 226,was raised or determined. the first of the aboveobjections was, however, pointedly raised in newkerala bus transport v. regional transport authority, cannanore, 1959 ker lt 405: (air 1959 kerala398), and upheld by t. k. joseph, j. following twodecisions of the supreme court, notably the decision in state of uttar pradesh v. mahammed nooh,air 1958 sc 86, which has laid down the.....
Judgment:

S. Velu Pillai, J.

1. This is a petition under Article 226 of the Constitution by R. K. V. Motors and Timbers (Private) Ltd., a motor transport company, for the issue of a writ of certiorari, quashing the Order Ext. B, dated 31-1-1959, passed by the first respondent, who is the Secretary, Regional Transport Authority, Trivandrum, granting a temporary stage carriage permit to the second respondent, the Director of State Transport, Kerala State, for the route Trivandrum (Cantonment)-Neyyattinkara via Kattakada. This route, among others was served by the petitioner, for about six or seven years in the past by providing motor transport under a stage carriage permit held by it. The Java Service (Private) Ltd., Nevvattinkara, or shortly the Jaya Service, is an-other motor transport company, who had been similarly serving the same route, under a stage car-riage permit held by it, till a few months before the date of this petition when it ceased to do so.

On 21-1-1959, the petitioner made an application to the first respondent, for the issue to it of a temporary permit for an additional bus to operate the same route, on the ground, that the Jaya Service had defaulted in service; this was rejected on the same day, by the order, copy of which is Ext. A, On 30-1-1959, the second respondent applied to the 1st respondent, for the issue to the department of a temporary permit for one of its buses, on the ground, that there was public need of departmental transport service to operate on the same route. By Ext. B, the order sought to be quashed, a temporary permit was granted to the 2nd respondent to operate a service on the route, for a period of four months from 1-2-1959, in substitution of the service operated by the Jaya Service. The petitioner's chief contention is that the grant of a temporary permit to the 2nd respondent, was not warranted by the terms of Section 62 of the M. V. Act, 1939, hereinafter referred to as the Act and was therefore wanting in jurisdiction.

2. The learned Government Pleader, who appeared for both respondents has placed in my hands, the papers in the office of the 1st respondent relating to the issue of the permits. He has raised a two-fold objection to the issue of a writ under Article 226 of the Constitution as prayed for; firstly, that if Ext. B was illegal the petitioner had its remedy under Section 64A of the Act, by way of revision to the State Transport Authority and secondly, that by applying on 21-1-1959 for the issue of a temporary permit, the petitioner had submitted to the jurisdiction of the Regional Transport Authority represented by the 1st respondent, and that it cannot now be heard to contend against it, and impeach Ext. B as lacking in jurisdiction.

Two reported cases decided by this court whichwere mentioned by the learned counsel for the petitioner, in which temporary permits issued by theRegional Transport Authority were quashed, areBalagangadharan v. Regional Transport Board, 1957,Ker LT 1259: (AIR 1958 Kerala 144) and KunjuMenon v. Secretary. R. T. Board, Trichur, AIR 1957Trav-Co. 255; but m these no preliminary objectionto the competency of the petitioner under Article 226,was raised or determined. The first of the aboveobjections was, however, pointedly raised in NewKerala Bus Transport v. Regional Transport Authority, Cannanore, 1959 Ker LT 405: (AIR 1959 Kerala398), and upheld by T. K. Joseph, J. following twodecisions of the Supreme Court, notably the decision in State of Uttar Pradesh v. Mahammed Nooh,AIR 1958 SC 86, which has laid down the limitations, to the exercise of this special jurisdiction bythe Court.

3. In deciding the preliminary objection, it has to be taken, that the petitioner has a good and sustainahle case on the merits. The case of AIR 1958 SC 86 has decided that though there is no rule that certiorari will lie only where there is no other equally effective remedy provided the requi-site grounds exist, it will lie, notwithstanding a right of appeal. But ordinarily, the Superior Court will decline to interfere, until the aggrieved party has exhausted his other remedies. But this rule is one of policy, convenience and discretion, rather than a rule of law. Their Lordships observed:

'If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accented rules or procedure, and which offends the superior court's sense of fair play, the superior court may quite properly exercise its power to issue the prerogative writ or certiorari to correct the error of the court or tribunal of first instance, even if nn appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned.'

The case itself was decided on the ground of a violation of natural justice in a departmental trial, in which the officer holding the trial offered himself as a witness against the persons put on trial.

4. The earlier case decided by the Supreme Court on which Joseph J., relied, was Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192, where the scope of Article 226, was defined in these terms :

'Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.'

The need for interference must therefore depend on the nature and gravity of the error com-mitted by the inferior tribunal. Coming to the present case, if the petitioner is able to satisfy the court, that in granting the temporary permit to the 2nd respondent, 1st respondent has acted, not merely erroneously but in patent and total disregard of the provisions of the Act, or in flagrant violation thereof, there is nothing in the dicta of the Supreme Court referred to above, which debars this Court from exercising the jurisdiction under Article 226, on the ground, that the petitioner could have obtained his remedy in some other manner.

5. It is necessary to see how the first respondent granted the permit. At the hearing of this peti-tion before me, the argument proceeded on the as-pumption that the permit to the Jaya Service is still in force, and that notwithstanding default committed by it in maintaining the service, it had power to resume the service at any moment this might spell a 'temporary need'. But on perusing the eapers, which the learned Government Pleader had furished to me, it is seen, that the permit originally issued to the Jaya Service had been cancelled on the 21st January, and the temporary permit was expressly stated Co be 'to operate as substitute service' in the place of the bus previously operated by the Jaya Service.

On the cancellation of the permit which had been issued to the Jaya Service, the need, which it was intended to meet, and which was non-temporary, stood revived. This, without anything more, cannot stand converted into a temporary need. The counter-affidavit of the 1st respondent, while asserting the existence of a temporary need, as supporting the grant of the permit, did not disclose what it is. The covering letter of the 2nd respondent, which accompanied his application for a temporary permit, disclosed temporary need; the need, if it was one, was expressed to be, 'what was felt by the public and by the local M.L.A.', for departmental services on the route. Plainly, this was not a temporary need. It is strange, that the counter-affidavit of the 1st respondent did not disclose the material fact that the permit to the Jaya Service had been cancelled, and left this to be glanced from the papers supplied to me.

Notwithstanding the allegation in the covering letter by the second respondent, of a non-temporary need and the revival of a need of that description, consequent on the cancellation of the permit to the Jaya Service, the 1st respondent chose to issue a temporary permit which could be done under Section 62 (c) of the Act, only in the event of a temporary need. It was not alleged by the 1st respondent, nor was it contended on his behalf, that on account of the shortage of the number of buses on the route upon the cancellation of the permit, he thought fit to issue a temporary permit, till a regular permit could be granted, after going through the procedure prescribed by Section 57 of the Act, as in Jairamdas v. Regional Transport Authority, AIR 1957 Raj 162. In AIR 1957 Trav-Co. 255, a temporary permit was issued to be in force for the duration of a stay order, pending an appeal against the grant of a regular pucca permit; yet this court held, it was not a valid issue.

What was achieved by the Jst respondent, was to set at naught the provisions of Section 62 of the Act, and to issue a temporary permit, in the teeth of an allegation of a non-temporary need, without his satisfying himself as to any particular temporary need and without being able even now to point out, in his counter-affidavit when challenged to do so in these proceedings, what if any, the particular temporary need was. I am, therefore, of the view, that this is a case in which the 1st respondent has acted, in patent and total disregard of the provisions of the Act and in excess of his powers and therefore the first preliminary objection cannot stand. The case of 1959 Ker LT 405: (AIR 1959 Kerala 398) decided by T. K. Joseph, J. was different, as, on the merits of the case, the order sought to be quashed, was found to be perfectly valid and supportable, by reason of an amendment introduced in the Act by the Madras State Government.

6. It remains to dispose of the second preliminary objection, that the petitioner, by its having made the application of the 21st January, had submitted to the jurisdiction of the 1st respondent. The case relied on in support of this, was Ponkunnam Erattupetta Motor Service v. R. T. A., Kottayam, 1958 Ker LT 1034, decided by Varadaraja Iyengar, J. on the principle, that the jurisdiction under Article 226, cannot be invoked by a party who had submitted to the jurisdiction of the inferior tribunal. In support of this, Varadaraja Iyengar, J. relied, on Pannalal Binraj v. Union of India, (S) AIR 1957 SC 397 decided by the Supreme Court, and Gandhi-nagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202.

In the former, the petitioner-assessce by reason of several antecedent proceedings, in which he had participated, had submitted to the jurisdiction of the Income-tax Officer at Delhi, to which the assessment case had been transferred under the provisions of Section 5 (7) A of the Income-tax Act, 1922 and afterwards he sought to challenge the validity of five original transfer, on the ground, that Section 5 (7) A was ultra vires. In the latter on second appeal against the decision of the State Transport Authority, in the matter of the issue of a permit under the Motor Vehicles Act, Government set aside the order, and the party aggrieved thereby invoked the jurisdiction under Article 226, contending that Government had no jurisdiction to sit in appeal over the decision of the State Transport Authority, Chagla C, J., held, that having omitted in appeal to object to the jurisdiction of the Government the writ jurisdiction under Article 226, which is a special jurisdiction, the limits and conditions of which could be set by the High Court for itself, could not be extended to him.

These are not analogous to the present case. In the case before Varadaraja Iyengar, J. pending an appeal against the issue of a pucca permit, action was instituted for the issue of a temporary permit and rival claimants opposed one another, apparently iu the proceeding and one of them who was disappointed, challenged the jurisdiction of the authority before whom he had applied, to issue the permit, by a petition under Article 226; it was held he was precluded from doing so.

7. The petitioner, here, had made his appli-cation for the issue of a temporary permit, on 2lst January, to the 1st respondent, who had every authority to issue a temporary permit, in circum-stances warranted by law. Though in issuing a temporary permit it is not necessary to conform to Section 57 or the Act, there are matters to be considered by the authority in granting such permit. The first respondent in his counter-affidavit has affirmed, that the petitioner's application was rejected, not be-cause the need was not temporary, but because it suffered from a disqualification that it had not pro-vided adequate transport facilities even on the routes for which it held permits.

The petitioner's present contention is not, that under no circumstances the 1st respondent has jurisdiction to issue a temporary permit; if, therefore, in the exercise of his jurisdiction the authority disre-gards or violates the plain provisions of the statute I fail to see how the petitioner, whose locus standi to oppose the grant to the 2nd respondent is not open to question, can be precluded from seeking to quash the grant by a petition under Article 226, if the other conditions are fulfilled. Unlike the case in 1958 Ker LT 1034 here, at the material time, there was only one proceeding, for the issue of a permit to the 2nd respondent of which the petitioner became aware, only after the second respondent had commenced to operate a service, pursuant to the grant of a temporary permit to him, I am, therefore, of the view, that the second ground of the preliminary objection too is not sustainable.

8. The reasons discussed above while dealingwith the first preliminary objection, are sufficient tohold, that Ext. B order was made in flagrant violation of the provisions of the Act and cannot stand;it is hereby quashed. The petition is accordinglyallowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //