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Poulose and anr. Vs. R.T.A., Trichur and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 5320 of 1981-D and 5790 of 1981-C
Judge
Reported inAIR1982Ker142
ActsMotor Vehicles Act, 1939 - Sections 47(3) and 62; Constitution of India - Article 226
AppellantPoulose and anr.
RespondentR.T.A., Trichur and ors.
Appellant Advocate V. Sivaraman Nair and; M. Krishnakumar, Advs.
Respondent Advocate Govt. Pleader and; A. Inees, Advs.
Cases ReferredV. O. Varkey v. Regional Transport Authority
Excerpt:
.....(3) and 62 of motor vehicles act, 1939 and article 226 of constitution of india - petition against grant of temporary permit to respondents - rta had not come to conclusion on necessity for issue of temporary permit - question whether there existed actual or temporary need for grant of temporary permit on route not decided finally - respondent directed to consider merits of application for grant of temporary permit following procedure under section 62. - - p-2 and p-3 notifications is questioned mainly on two grounds :(1) it was without observing the formalities required under section 47 (3) of the motor vehicles act, 1939, (the act), that the notifications had been issued, and (2) it was without hearing interested persons like the petitioners who were likely to be affected by the..........or not is essentially one of fact to be assessed and decided by the primary authority competent to grant permits, namely, the 1st respondent in these writ petitions. the complaint of the petitioners is that in these notifications the 1st respondent had taken a decision to invite applications for the grant of temporary permits without giving an opportunity for making representations or for being heard. this, according to the petitioners, has prejudicially affected persons having interest in the matter and who are likely to be affected by the grant of the permits. here also i find no merit in the contention raised by the petitioners. no doubt, in inviting applications the r.t.a. had said that it was decided to grant temporary permits. that, however, does not conclude the question in regard.....
Judgment:
ORDER

K. Bhaskaran, J.

1. Though these two writ petitions are seen to have been filed by different persons inasmuch as the notification dated 30-9-1981 inviting applications for the grant of temporary permit On the route Trichur-Peechi issued by the 1st respondent, R. T. A., Trichur (marked as Ext. P-1 under challenge in O. P. No. 5320 of 1981, is under challenge in O. P. No. 5790 of 1981 also, they were heard together and are being disposed of by this common judgment. In O. P. No. 5790 of 1981 not only the notification dated 30-9-1981 issued by the 1st respondent R. T. A., marked as Ext. P-2 (marked as Ext. P-l in O. P. No. 5320 of 1981), but also Ext. P-3 notification dated 27-10-1981 issued by the 1st respondent inviting applications for the grant of temporary permits on the route Ayyanthole-Peechi and Ext. P-4 order of the 2nd respondent, the Secretary, R. T. A., Trichur, granting a temporary permit to each of respondents 3 and 4 for operating service on the route Peechi-Ayyanthole for 20 days are under challenge.

2. The reference to exhibits in this judgment is as marked in O. P. No. 5790 of 1981 the decision in which would dispose of O. P. No. 5320 of 1981 also. The validity of Exts. P-2 and P-3 notifications is questioned mainly on two grounds : (1) it was without observing the formalities required under Section 47 (3) of the Motor Vehicles Act, 1939, (the Act), that the notifications had been issued, and (2) it was without hearing interested persons like the petitioners who were likely to be affected by the grant of the permit that the question of the existence of temporary need had been decided by the 1st respondent R.T.A. Besides those two common grounds a further ground raised to attack Ext. P-3 is that it had been issued to circumvent the effect of the order passed by this Court staying the operation of Ext. P-2 notification. Ext. P-4 order is attacked on the ground that the order for the issue of permits was arbitrary and was made only to circumvent the order of stay passed by this Court in O. P. No. 5320 of 1981.

3. Section 47 (3) of the Act reads as follows:--

'A Regional Transport Authority may, having regard to the matters mentioned in Sub-section (1), limit the number of stage carriages generally or of any specified type for which stage carriage permit may be granted in the region or in any specified area or on any specified route within the region.'

The submission made by the counsel for the petitioners is that after the 1st respondent issued Ext. P-5 notification dated 22-2-1960 (produced along with the reply affidavit in O. P. No. 5790 of 1981) there had not been any notification enlarging the number of vehicles for the issue of permits, and therefore, Exts. P-2 and P-3 notifications could not have been issued and Ext. P-4 order passed validly. I find it difficult to agree with this contention. It is not as though a fresh notification under Section 47 (3) is to precede the grant of each and every temporary or permanent permit. The purpose of Section 47 (3) is to have a general assessment of the traffic potential in the area for the purpose of granting permits, and the grant of the permit could not be challenged as one vitiated by jurisdictional error on the ground that the grant of permit was not preceded by a fresh notification under Section 47 (3) of the Act. I find support for this view expressed by me in the two judgments of a Division Bench of this Court which consisted of M. S.

Menon, C. J., and M. Madhavan Nair, J., in W. A. Nos. 152 and 171 of 1963 wherein, dealing with almost a similar notification, the Division Bench held as follows:--

'A plain reading of the notification, Ext. P-2, shows that it is not an absolute fixation of the number of permits in the region, nor retrospective in effect; and the conduct of the R.T.A. makes clear that it was not meant to be final or retrospective.'

I, therefore, reject the contention of the petitioners that Exts. P-2 and P-3 notifications and the grant of permits as per Ext. P-4 order are vitiated by the non-compliance with the provisions under Section 47 (3) of the Act.

4. It is well settled beyond doubt that no temporary permit would be issued where the need of the travelling public is of a permanent nature. However, the question whether in the given case temporary need justifying the issue of a temporary permit existed or not is essentially one of fact to be assessed and decided by the primary authority competent to grant permits, namely, the 1st respondent in these writ petitions. The complaint of the petitioners is that in these notifications the 1st respondent had taken a decision to invite applications for the grant of temporary permits without giving an opportunity for making representations or for being heard. This, according to the petitioners, has prejudicially affected persons having interest in the matter and who are likely to be affected by the grant of the permits. Here also I find no merit in the contention raised by the petitioners. No doubt, in inviting applications the R.T.A. had said that it was decided to grant temporary permits. That, however, does not conclude the question in regard to the existence or otherwise of the temporary need. Whatever statement contained in Exts. P-2 and P-3 inviting applications could only be of a tentative conclusion or a prima facie conclusion which provided sufficient justification for inviting applications for permits. By no stretch of imagination could it be said that the fact that the R.T.A. had chosen to invite applications for the grant of temporary permits would prevent persons who are likely to be affected by the grant of permits from contesting the issue. It is well settled that before a stage carriage permit is issued, even in the case of temporary permit, not to speak of permanent permit, the persons who are interested in opposing the grant must have the opportunity to satisfy the authority that there did not exist a need for the grant of the permit. If authority for this proposition is wanted, the ruling given by the Division Bench of this Court consisting of M. S. Menon, C. J. and Govindan Nair, J. in V. O. Varkey v. Regional Transport Authority, Trichur, (1969 Ker LT 699) would suffice.

5. Strictly speaking, the petitioners ought not to have filed these writ petitions to attack Exts. P-2 and P-3 inasmuch as none of their rights had been affected or threatened to be affected. They were notifications inviting applications for grant of temporary permits under Section 62 of the Act. The petitioners were not prevented either from applying for the permits or opposing the grant of the permits. If the petitioners' case is that no temporary need warranting the grant of the permits existed, it is quite open to them to raise that point by filing objections and substantiating them at the time of hearing. The petitioners have no case that a permit has been granted in pursuance of Exts. P-2 and P-3 without notice to them or without giving an opportunity to them for being heard.

6. Too much of insistence on the technicalities, stressing the letter of law, forgetting the spirit of it, would virtually defeat the very object of Section 62 of the Act which is a special provision enacted to meet cases of urgent nature without the sanctioning authorities getting themselves caught up in the cobweb of the detailed procedure prescribed in Section 57 of the Act. The convenience of the travelling public should be the paramount consideration; and where the temporary need is found to exist by the R.T.A. on an objective consideration of the material placed before it, this Court should not, broadly speaking, interfere with the grant of the permit except for compelling reasons or for jurisdictional error. From this point of view also I do not think that a case for interference with Exts. P-2 and P-3, which are steps initiated for the grant of temporary permit on the basis of the prima facie conclusion of the R.T.A. has been made out.

7. The counsel for the petitioners submitted that the attempt of the R.T.A. in issuing Exts. P-2 and P-3 notifications Was to get over the decision given by this Court in the judgment dated 20-10-1981 in O. P. No. 4514 of 1981-D, the appeal against which (W. A. No. 494 of 1981) was dismissed by the Division Bench at the stage of admission on 30-10-1981. Though it is not necessary for me to pronounce anything on the merits of the case in the nature of the direction I propose to give in this judgment, I cannot help observing that it related to the route Trichur-Kottapuram, whereas the present notifications are with respect to the routes Trichur-Peechi and Ayyan-thole-Peechi; moreover, the grant of the permit was interfered with by this Court on the ground that in that case the R.T.A. had not come to a conclusion on the necessity for the issue of a temporary permit, so much so that, the question whether there existed actually temporary need for the grant of a temporary permit on that route itself remains without being answered finally and conclusively, I find no merit in the contentions that Exts. P-2 and P-3 notifications have been issued to circumvent the decision of this Court in O. P. No. 4514 of 1981-D.

8. At the time of hearing the counsel for respondents 3 and 4 in O. P. No. 5790 of 1981 submitted that they had no intention to put their vehicles on road pursuant to Ext. P-4 for the reason that the life of the permit was to expire on 22-11-1981. This statement is recorded; and that relieves me of the need for a pronouncement on the validity of Ext. P-4.

9. For the foregoing reasons I would dispose of the writ petitions directing the 1st respondent to consider and decide the merits of the application for the grant of temporary permit received in pursuance of the invitation in Exts. P-2 and P-3 notifications, following the procedure prescribed in Section 62 and other relevant provisions of the Act, and in the light of the observations contain-ed in this judgment, giving opportunity to persons including the petitioners herein, who are interested in the matter and likely to be affected by the grant of permits, to state their case and for being heard. There will be no order as to costs.

A carbon copy of this judgment may be granted to the Government Pleader free of charge and to the counsel for the petitioners and also to the counsel for respondents 3 and 4 in O. P. No. 5790 of 1981 on usual terms if applied for in that behalf.


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