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Manjeri Public Conveyance, Manjeri P.O. Vs. Secretary, Regional Transport Authority, Malappuram and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberO.P. No. 4112 of 1976
Judge
Reported inAIR1977Ker64
ActsMotor Vehicles Act, 1939 - Sections 47(3), 55(2), 57(2) and 57(3)
AppellantManjeri Public Conveyance, Manjeri P.O.
RespondentSecretary, Regional Transport Authority, Malappuram and ors.
Appellant Advocate A. Inees Chiriyankandath, Adv.
Respondent Advocate K. Neelakanda Menon and; P. Gopalakrishnan, Advs.
DispositionPetition allowed
Cases ReferredAjanthe Transports v. T. V. K. Transports
Excerpt:
.....47 (3), 55 (2), 57 (2) and 57 (3) of motor vehicles act, 1939 - whether suo motu application or belated application be clubbed with application made in time as per notification under section 57 (2) - belated application can not be treated as application receive in accordance with notification - held, belated application cannot be clubbed with application made in time as per notification under section 57 (2). (ii) application - whether regional transport authority (rta) can summarily reject application for permit even if belated in absence of limit fixed under section 47 (3) or section 55 (2) - summary rejection allowed where limit has been fixed under section 47 (3) or section 55 (2) - rta wrong in rejecting summarily application even though it was belated. - - learned counsel..........that arises for consideration in this original petition is whether a suo motu application or a belated application can be clubbed with an application made in time in response to a notification under section 57 (2) of the motor vehicles act, 1939, for short the act. a question whether the regional transport authority can summarily reject an application for a permit, even if belated, in the absence of any limit fixed under section 47 (3) or section 55 (2) of the act also arises for consideration.2. by order dated 9-10-1975 the 2nd respondent -- regional transport authority, malappuram decided to invite applications for a pucca permit in the route manjeri-vazhikkadavu via. thiruvali wandur, vadapuram, nilambur, edakkara. the 4th respondent who was having a pucoa permit on the route did.....
Judgment:

K.K. Narendran, J.

In Ramanumni Nair v. State Transport Appellate Tribunal, 1975 Ker LT 204 - (AIR 1975 Ker 104) I said that there is nothing in the Motor Vehicles Act, 1939 which prohibits the clubbing of two suo motu applications for a permit and giving them a common disposal, It was also pointed out that in that case the State Transport Appellate Tribunal was in the wrong in not giving a direction to the Regional Transport Authority to club the suo motu applications of the petitioner and the 5th respondent. The question that arises for consideration in this original petition is whether a suo motu application or a belated application can be clubbed with an application made in time in response to a notification under Section 57 (2) of the Motor Vehicles Act, 1939, for short the Act. A question whether the Regional Transport Authority can summarily reject an application for a permit, even if belated, in the absence of any limit fixed under Section 47 (3) or Section 55 (2) of the Act also arises for consideration.

2. By order dated 9-10-1975 the 2nd respondent -- Regional Transport Authority, Malappuram decided to invite applications for a pucca permit in the route Manjeri-Vazhikkadavu via. Thiruvali Wandur, Vadapuram, Nilambur, Edakkara. The 4th respondent who was having a pucoa permit on the route did not file an application for renewal of the permit in time and his belated application was rejected by the 2nd respondent by order dated 6-9-1975. In pursuance of the order dated 9-10-1975 Ext. P-1 notification under Section 57 (2) of the Act was published appointing a date for the receipt of applications. In Ext. P-1 it was also made clear that belated applications will not be entertained. The petitioner filed an application in time. The application of the 4th respondent was belated. The 4th respondent also applied for the reissue of a temporary permit on the route. The 2nd respondent by Ext. P-2 proceedings dated 19-5-1976 rejected both the applications, the application submitted in pursuance of Ext P-1 notification was rejected as belated. The petitioner's application was sent for publication in the Kerala Gazette and Ext. P-3 is the Gazette Notification under Section 57 (3) of the Act. On 19-6-1976 the 4th respondent filed a suo motu Application also for a pucca permit on the same route. But the 2nd respondent did not entertain the same. Against that order, the 4th respondent appealed to the 3rd respondent-State Transport Appellate Tribunal and the 3rd respondent by Ext. P-4 judgment allowed that appeal holding that the suo motu application has to be published under Section 57 (3) Of the Act. Against Ext. P-2 order rejecting the belated application also the 4th respondent filed an appeal to the 3rd respondent. The petitioner got itself impleaded in that appeal. Though the State Transport Appellate Tribunal by Ext. P-5 judgment held that the application was belated and that it cannot be treated as an application received in pursuance of Ext. P-1 notification, the summary rejection of the application was found not sustainable and the matter was remanded to the Regional Transport Authority for disposal according to law. In this original petition the petitioner questions the above judgment Ext. P-5 of the State Transport Appellate Tribunal. The main objection of the petitioner is to an observation made by the STAT which reads

'The RTA will be at liberty to con-eider the application of the appellant either independently or along with the applications received in pursuance of the notification inviting applications.'

3. The 4th respondent has filed a counter-affidavit and along with the counter-affidavit Exts. R-1 to R-5 are also produced. The petitioner has filed a reply affidavit and along with the reply affidavit Exts. P-6 to P-20 are produced. The 4th respondent has chosen to file an additional counter-affidavit also and along with the same Exts. R-6 to R-10 are also produced. Ext. P-8 is a proceeding dated 24-8-1976 by which the 2nd respondent RTA decided by a majority to club together the petitioner's application and the suo motu application of the 4th respondent, for consideration.

4. Shri A. Inees, learned counsel for the petitioner contends that the 3rd respondent went wrong in making the observation that the RTA will be at liberty to consider the 4th respondent's belated application along with the applications received in pursuance of Ext. P-1 notification inviting applications. Learned counsel points out that the application made in pursuance of a notification under Section 57 (2) of the Act and a suo motu application cannot be disposed of together because in that case appointing dates by the RTA under the sub-section will become meaningless. In support of his contention learned counsel refers to Bharat Motor Service v. Secy., Regional Transport Authority, Cannanore (O. P. No. 111 of 1976) (Ker). In the above case, considering the question whether an application made in pursuance of a notification under Section 57 (2) can be clubbed with a suo motu application. Mr. Justice Chan-drasekhara Menon said:

'Therefore, I would direct the Regional Transport Authority Cannanore to dispose of the petitioner's application for stage carriage permit on the route Padna-Thalapaddy via. Pallikkara evidenced by Exts. P-2 and P-3 in accordance with law independently and apart from the application filed by the 2nd respondent and without in any way clubbing together the two applications.

Learned counsel also justifies Ext. P-2 order of the 2nd respondent summarily rejecting the 4th respondent's belated application on the ground that when the only vacancy on the route is notified under Section 57 (2) of the Act it is to be taken for granted that a limit is fixed under Section 47 (3) of the Act. It is also contended that a belated application filed in pursuance of a notification under Section 57 (2) will not become a suo motu application under the first part of Section 57 (2).

5. Learned Government Pleader appearing for respondents 1 and 2 refers to Section 57 (2) of the Act and Rule 161 (1) (f) of the Kerala Motor Vehicles Rules, 1961, for short the Rules, and contends that the RTA has the power to fix dates, it is then contended that when an application is invited for a permit that is to be taken as a limit fixed as the vacancy is only one and hence a summary rejection of a belated application is possible under the proviso to Section 57 (3) of the Act. Reference is then made to Mohd, Ibrahim v. S.T.A. Tribunal (AIR 1970 SC 1542) and Gajendra Transport (P.) Ltd. v. Anamallias Bus Transport (P) Ltd. (AIR 1975 SC 386). In the latter case the Supreme Court has said:

'Where the Regional Transport Authority issues a notification under Section 57 (2) inviting applications for a permit for an additional bus on an existing route, it can reasonably be held that the RTA has arrived at a decision as to the limit of the number of permits as required under Section 47 (3) because it is not the form but the substance of the order that has to be considered.''

Learned Government Pleader then refers to the decision of Mr. Justice Chandra-sekhara Menon in Bharat Motor Service's case (O. P. No. 111 of 1976) (Ker) and contends that the S.T.A.T. went wrong in making the observation in Ext. P-5 objected to by the petitioner.

6. Shri K. Neelakanta Menon learned counsel for the 4th respondent, contends that the summary rejection of the 4th respondent's application as belated was against the scheme of Section 57 of the Act. Learned counsel points out that only in oases where a limit is fixed by the RTA summary rejection is possible. Learned counsel refers to Gajendra Transport's case (AIR 1975 SC 386) and points out that Ext. P-1 notification is not in respect of a new route or an additional permit in an existing route and hence it cannot be said by Ext. P-1 noti-fication inviting applications for a pucca permit in a vacancy, a limit has been fixed. It is then contended that Ext. P-5 judgment of the STAT does not call for any interference since what has been held therein is that the summary dismissal of the 4th respondent's application by the RTA by Ext. P-2 was wrong. It is also pointed out that the 4th respondent did not in the appeal pray for a clubbing of the applications and the STAT has also not given a direction in Ext. P-5 to the RTA to club the applications. Learned counsel then contends that the discretion of the RTA under Section 57 (5) of the Act is in fact as the only direction given in Ext. P-5 is to publish the 4th respondent's application, It is pointed out that in pursuance of the direction in Ext. P-5 judgment the RTA published the 4th respondent's application on 18-9-1976 while the petitioner's application became ripe for consideration on 22-7-1976. It is further pointed out that by Ext. R-8 proceedings dated 24-8-1976 the RTA has taken a decision to club the applications of the petitioner and the 4th respondent and give them a common disposal. Learned counsel then contends that such a clubbing is not in any way prohibited by the Act and it will only be more in the interests of the travelling public as the RTA gets an opportunity to choose the best operator. According to the learned counsel, the petitioner cannot really suffer any harm by standing a comparison to the 4th respondent. Reference is also made to Ajanthe Transports v. T. V. K. Transports (AIR 1975 SC 123) wherein the Supreme Court has said that the dominant object in the matter of issue of a stage carriage permit is the interests of the public generally. Learned counsel then contends that the R.T.A. has the right to change the dates appointed in the notification under Section 57 (2) by virtue of Section 21 of the General Clauses Act as there is no statutory bar. It is then pointed out that the R.T.A. or its Secretary has no power to specify in the notification that belated applications will not be entertained. Pointing out that the 4th respondent's application was late only by one day and that the 4th respondent was having a pucca permit on the route, learned counsel contends that equitable considerations ought to have weighed with the R.T.A. Learned counsel then refers to Bharath Motor Service's case (O. P. No. 111 of 1976) (Ker) and contends that that decision is not applicable to the facts of this case. According to the learned counsel, the reason for not allowing the clubbing of applications in that case was that having filed no representation in time, one cannot object by filing a suo motu application for a permit. Learned counsel points out that in this case the 4th respondent has filed his objections to the petitioner's application in time. Learned counsel also contends that the petitioner has no locus standi to bring this original petition at this stage as no legal right of his has been taken away or no order adverse to his interest has been passed.

7. Learned counsel for the petitioner in his reply points out that by Ext. R-8 proceedings passed pending this original petition, the R.T.A. has only taken a decision to club the applications and that the applications for the permit has not been disposed of so far. Learned counsel points out that the observation in Ext. P-5 objected to by the petitioner has been taken as a direction by the R.T.A. and the decision for clubbing in Ext. R-8 is because of that

8. Section 57 of the Act reads: 57 (1) An application for a contract carriage permit or a private carrier's permit may be made at any time.

(2) An application for a stage carriage permit or a public carrier's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates.

(3) On receipt of an application for stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which, and the time and place at which, the application and any representations received will be considered:

Provided that, if the grant of any permit in accordance with the application or with modification would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the application relates, beyond the Section 47 or Sub-section (2) of Section 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub-section.

9. Under Section 57 (2) the Regional Transport Authority has the power to appoint dates for the receipt of application for stage carriage permits when a notification is issued inviting applications. What should be done when a belated application is received? Can it be summarily rejected? This can be done only under the proviso to Section 57 (3) and the proviso provides for summary rejection where a limit has been already fixed under Section 47 (3) or Section 55 (2). When the R.T.A. issues a notification inviting applications for an additional bus on an existing route, it can be said that the R.T.A. has taken a decision to limit the number of permits but where the applications are invited for a permit In an existing vacancy as in this case, it cannot be said that a limit has been fixed by the notification inviting applications. So, the R.T.A. was in the wrong in rejecting summarily the 4th respondent's application though it was belated. In that case, it was only wrong on the part of the 1st respondent to specify in Ext. P-1 notification that belated applications will not be entertained. But the further question is whether a belated application can be clubbed with applications made in accordance with the notification, and given a common disposal. A belated application cannot be treated as an application received in accordance with the notification. No doubt a belated application will also be a suo motu application became a suo motu application is one which can be made at any time without ascertaining whether there is a vacancy or whether a notification inviting applications is there. As the R.T.A. has appointed a date for receipt of applications in Ext. P-1 notification and as this is well within its powers as per Section 57 (2) of the Act, an application received after the date fixed in the notification cannot be considered along with applications made in accordance with the notification. Otherwise, there is no meaning in appointing dates by the notification. A belated applicant cannot take shelter under 'the interests of the public generally' and insist that his application should be clubbed with applications made as per the notification under Section 57 (2) and given a common disposal. When applications are invited by a notification under Section 57 (2) the choice is restricted to those who make the applications in accordance with the notification. Though it is true that the STAT did not give any direction for clubbing in Ext. P-5 judgment, by the observation in the last sentence the STAT has given a green signal to the RTA for clubbing. Ext. R-8 proceeding also justifies this conclusion. I quash the last sentence in Ext. P-5 which contains the observation objected to by the petitioner. In the result, Ext. P-5 judgment without the last sentence is sustained. The 2nd respondent R.T.A. is to dispose of the petitioner's application and the applications of the 4th respondent in the light of what is said in this judgment.

10. The original petition is allowed as above. There will be no order as to costs.

Issue carbon copies of this judgment to the Government Pleader appearing in the case free of costs and to the counsel for the petitioner and the 4th respondent.


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