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M. Madhavan Nair Vs. P.E. Varkey and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberO.P. No. 2363 of 1983-N
Judge
Reported inAIR1983Ker254
ActsMotor Vehicles Act, 1939 - Sections 47 and 47(1); Kerala Motor Vehicles Rules, 1961 - Rule 177A(4)
AppellantM. Madhavan Nair
RespondentP.E. Varkey and ors.
Appellant Advocate P. Ravindran, Adv.
Respondent Advocate K.P. Dandapani,; Sumathi Dandapani,; Sebastian Paul
DispositionPetition dismissed
Cases ReferredLaila Beegum v. R. T. A.
Excerpt:
.....- sections 47 and 47 (1) of motor vehicles act, 1939 and rule 177a (4) of kerala motor vehicles rules, 1961 - order granting permit to first respondent challenged - petitioner and first respondent obtained equal marks on assessment of their relative merits under rule 177-a - first respondent has preference under statutory provisions of section 47 (1) - grant of permit justified. - - it has been well settled by the full bench decision of this court in cannanore dist. it was argued on behalf of the petitioner that the intention of the legislature, as could be gathered from the objects and reasons, was to promote the well being of economically weaker sections of the community, and the 1st respondent on his own snowing having been in the field of passenger transport for about 6 or 7..........ext. p-2 reads as follows :--'applicant no. 3 is absent. heard applicants 1, 2 and 4. this is long route. marks are awarded. applicants 1, 2 and 4 get 5 marks each. applicant no. 1 is having the full sector (104 km) whereas nos. 2 and 4 are having 68 and 88 km respectively. therefore applicant no. 1 is preferred and permit is granted to him. the other applications are rejected.......'the marks awarded, as noted in ext. p2, so far as the petitioner and the 1st respondent are concerned are:'8 (sic) marks to each for sector qualification and 1 mark to each for business or technical experience.'2. it might be noted that under sub-rule (4) of rule 177a of the kerala motor vehicles rules, 1961 (the rules) the maximum number of marks an applicant would earn under the head 'sector qualification'.....
Judgment:
ORDER

K. Bhaskaran, J.

1. In and by the judgment dated 18-3-1983 in M. V. A. A. No. 8 of 1983, a true copy of which is marked Ext. P-6, the 4th respondent the State Transport Appellate Tribunal, Ernakulam, granted a temporary permit on the route Karuvarakundu-Trichur via Thuvur, Pandikkad, Perinthalmanna, Pattambi and Kunnamkulam (vide Ext. P-1 rough sketch) for a period of four months to the 1st respondent, setting aside the relevant proceedings dated 21-12-1982 of the 3rd respondent, the Regional Transport Authority, Malappuram, a true copy of which is marked Ext. P-2, whereunder the permit was ordered to be granted to the petitioner. In Ext. P-2 proceedings of the 3rd respondent the petitioner and the 1st respondent respectively were shown as applicants Nos. 1 and 4; there were two other applicants also. The decision of the 3rd respondent as stated in Ext. P-2 reads as follows :--

'Applicant No. 3 is absent. Heard applicants 1, 2 and 4. This is long route. Marks are awarded. Applicants 1, 2 and 4 get 5 marks each. Applicant No. 1 is having the full sector (104 KM) whereas Nos. 2 and 4 are having 68 and 88 KM respectively. Therefore applicant No. 1 is preferred and permit is granted to him. The other applications are rejected.......'

The marks awarded, as noted in Ext. P2, so far as the petitioner and the 1st respondent are concerned are:

'8 (sic) marks to each for sector qualification and 1 mark to each for business or technical experience.'

2. It might be noted that under sub-rule (4) of Rule 177A of the Kerala Motor Vehicles Rules, 1961 (the Rules) the maximum number of marks an applicant would earn under the head 'sector qualification' is 4, and that is the mark that has been given by the 3rd respondent to each (to the petitioner and to the 1st respondent).

3. There is no dispute that the sector qualification in respect of the 1st respondent extends only to 88 kms. on the 104 kilometre roule. The correctness of the assumption of the 3rd respondent that the petitioner was having 'the full sector (104 k. m.) sector is, however, contested by the 1st respondent. There appears to have been contest on that point before the 4th respondent also, as is evident from what is stated in paragraph 7 of Ext. P6 judgment. The counsel for the petitioner did not dispute the correctness of the assertion by the counsel for the 1st respondent that on the date on which the subject-matter came up for consideration before the 3rd respondent, the distance covered by his (petitioner's) stage carriage did not exceed 88 kms. on the route with respect to which the temporary permit was granted under Ext. P2. Though his stage carriage KRE 8047 was having a pucca permit on the route Paloorkotta-Vazhikkadavu via. Perinthalmanna, Thuvur, Karuvarakundu and Nilambur he applied to and obtained from the 3rd respondent a temporary variation of the route so as to read it to be 'Vazhikkadavu-Guruvayoor via. Nilambur, Wandoor, Pandikka, Perinthalmanna, Pattambi and Kunnamkulam' with effect from 3-12-1980 (omitting the sector Pandikkad, Karuvarakundu, Kalikavu and Nilambur on the present route). When his application for permanent variation was rejected subsequently, he preferred M. V. A. R. P. No. 198 of 1982 before the 4th respondent and M. P. No. 1216 of 1982 he got an interim direction allowing the stage carriage to ply on the route, as temporarily varied, leaving out, as before a portion of the sector covered by the pucca permit granted (which is also included an the route for which a temporary permit was granted under Ext. P2 to the petitioner subsequently). Paragraph 3 of the counter-affidavit filed by the 1st respondent reads as follows:--

'Moreover, though he was favoured with a pucca permit for the stage carriage KLM 1658 on the route Nilambur-Shornur via. Wandoor, Kalikavu, Karuvarakundu, Melattoor and Perinthalmanna, he got variation of this pucca permit also and at present he is plying on the basis of temporary permit on the Nilambur-Shoranur via. Wandoor, Pandikadu and Gravampurum.'

The counsel for the petitioner did not dispute the correctness of the statement extracted above. During the course of the hearing, it was disclosed that M. V. A. R. P. 198 of 1982 referred to in paragraph 3 of the counter-affidavit was dismissed on 22-2-1983. The petitioner, however, instead of operating the full sector of the route for which the temporary permit was granted, on 7-3-1983 filed an application before the 3rd respondent for a permanent variation of the route; but on 10-3-1983 it was rejected by the 3rd respondent.

4. The crux of the argument of the counsel for the 1st respondent is that on the date of Ext. P2 proceedings, namely on 21-12-1982, the petitioner was operating only a part of the route notified, not the full sector (104 Kms.) as wrongly assumed by the 3rd respondent. It has been well settled by the Full Bench decision of this Court in Cannanore Dist. Motor Transport Employees Co-operative Society Ltd. v. Malabar Public Conveyance (1962 Ker LT 446) : (AIR 1962 Ker 341), that the date that is material is the date on which the Regional Transport Authority deals with the application, the later date, the date on which the State Transport Appellate Tribunal decides the appeal, will mean an unwarranted extension of the appellate power.

5. The real factual position, as now admitted by the petitioner himself, being that at the material time when the application for the grant of permit came up for consideration before the 3rd respondent on 21-12-1982, both the petitioner and the 1st respondent had sector qualification only to an extent of 88 Kms. on a 104 Kms. route, and therefore, the grant of the permit by the 3rd respondent to the petitioner on the assumption that the petitioner was having 'the full sector (104 Kms.)' could not be sustained, and for that reason the 4th respondent was justified in setting aside Ext. P2 order.

6. Assuming for argument's sake that the petitioner had full sector qualification on the 104 Kms. route, the petitioners could not have been chosen by the 3rd respondent to give preferential treatment on the ground of 'longer sector qualification' alone, after having awarded to him 4 marks, the maximum number of marks admissible for that qualification under Rule 177A (4) of the Rules. When the framers of the Rifles, for the purpose of awarding marks, classified those who had 75 to 108 per cent sector qualification into one group, and two applicants had obtained the maximum number of marks that could be awarded under that head, to draw a further microscopic distinction and to have a further mini classification do not appear to be justified or warranted, as the intendment of the rule was to ignore such marginal difference while assessing the relative merits of the applicants before the R. T. A. Even if we accept the position that in extreme cases where all the contenders for the permit obtain equal marks under Rule 177A (4), and while disposing of the matter under Section 47 (1) no applicant is found to have any particular qualification to claim an edge over the others, it might be possible to clinch the issue by further probing into actual sector or technical experience each applicant was having, going behind the marks awarded, for want of any other means by which the choice could be made, such a procedure could be quite unwarranted, as in the present case, where there are other factors to be reckoned while assessing the relative merits of the applicants under Section 47 (1) of the Act. No doubt, as Justice Krishna Iyer in his inimitable words observed in Venkatachalam's case (AIR 1977 SC 842)--

'Marks shall guide, not govern the award ......... marks shape but do not clinch the ultimate selection.' All the same, it has to be borne in mind, as Justice Krishna Iyer himself pointed out in paragraph 13 of the very same judgment referred to above:

'For, the marks, these authorities will remember, sway the exercise of judgment, not supersede it.'

Justice Krishna Iyer had more emphatically expressed the same view earlier, in paragraph 7 of the judgment in Kumaraswamy's case (AIR 1976 SC 2202) at 2204 of the report:

'Not that the sub-rules of Rule 155-A can be discarded, but that they may be supplemented or outweighed. Not that, in the name of public interest, something opposed to the sub-rides of Rule 155-A can be done, but that, within the combined framework of Section 47 (1) and Rule 155-A, there is scope for play of the jurisdiction of the Tribunal to promote public interest.'

(The reference to Rule 155-A is to the Rule in the Tamil Nadu Motor Vehicles Rules, corresponding to Rule 177-A of the Kerala Rules.)

7. Normally, therefore, the R. T. A. would not go behind the marks awarded in terms of Rule 177-A (4) in assessing the relative merits of the applicants, particularly when there are other factors to be taken note of to clinch the issue while taking a decision according to the mandates of Section 47 (1) of the Act.

8. The decision of the Supreme Court in Kumaraswamy's case (AIR 1976 SC 2202) provides one instance where the Tribunal could be justified in interfering with the marks given by the R. T. A. under Rule 155-A of the Tamil Nadu Motor Vehicles Rules, corresponding to Rule 177-A of the Kerala Rules on the ground that marks have or have net been awarded on irrelevant considerations. In that case the marks to which the applicant was entitled under the rules were not awarded to him, making a distinction between the experience gained in operating lorry transport on the one hand and passenger transport on the other while the relevant rule did not make any such distinction. This however, is not a case in which the authority granting the permit varies the effect of the quantum of the marks awarded, but corrects the error in taking or not taking into consideration a certain factor which has no relevance, or has relevance, as the case may be,

9. A decision of this Court in O. P. 4048 of 1977--M -- Laila Beegum v. R. T. A., Quilon (Case No. 57 in 1980 KLT. Short Notes, page 24) was relied on by the counsel for the petitioner wherein it is seen observed as follows:--

'Persons with longer experience are generally preferred, for they are more likely than others to render the most efficient service to the public.'

There could possibly be no difference of opinion on the broad proposition that the applicants having longer experience are to be generally preferred. However, that does not mean that for assessing that qualification the marks awarded under the very same head by the application of the principle laid down in Rule 177-A of the Rules, have to be ignored and a fresh assessment on the basis of the exact proportion of the sector qualification or technical experience the parties at contest were having, has to be made. The decision relied on expressly or by necessary implication does not suggest the need for adopting such a procedure. Even after assessing the relative merits or qualifications by awarding marks, there would be other factors to be taken into consideration under Section 47 (1) of the Act. The Supreme Court in Venkaiah's dase ((1981) 4 SCC 105) : (AIR 1981 SC 1910) repelled the contention that the proviso to Clause (a) of Sub-section (iv) of Rule 212 of the Andhra Pradesh Motor Vehicles Rules, 1964, which corresponds to the proviso to Sub-rule (4) of Rule 177-A of the Kerala Rules, was violative of Article 19 of the Constitution. Said the Supreme Court (at P. 1913)

'We do not see how the proviso occurring in Sub-clause (a) of Clause (iv) of Rule 212 is hit by the provisions of Article 19 of the Constitution, It merely states that if an applicant possesses both residential and sector qualifications he is to be given credit only for that one of them which is more advantageous to him. As pointed out by the High Court the rule contained in the proviso is salutary and is obviously meant to avoid monopolies. It appears to us to be eminently reasonable that an applicant is given the option of choosing either the residential or the sector qualification for the award of marks inasmuch as the merit accruing to the applicant by reason of being clothed with one of them would overlap that for which he might get credit by reason of the other.'

If an applicant having both the sector qualification and the residential qualification is not entitled to claim an edge on that ground over his rival who is having only one of the two qualifications, much less could be the right of an applicant who received the maximum number of marks under the head 'sector qualification' or 'technical experience' to demand a further classification so as to see whether in that process his rival, who also obtained the maximum marks under the very same head, could be pushed out from the field. The policy underlying the rule appears to be that marginal differences in the qualification under those heads are only to be ignored; and especially it would be so where there are other factors to be taken into consideration when the matter is decided with reference to the mandates contained in Section 47 (1) of the Act. This being the position, it has to be held that the 3rd respondent, the R. T. A,, in granting the permit to the petitioner in Ext. P-2 proceedings, committed a mistake both in law and on facts.

10. There could be no doubt, as repeatedly held by this Court and indicated by the Supreme Court, that other things being equal, the applicant having longer experience in passenger transport operation would have an edge over others and that is particularly so in a case where the question of awarding marks does not arise. The decision rendered by M. P. Menon J. in O. P. Nos. 2383 and 3320 of 1979 dated 19-2-1982, confirmed by the Division Bench by the judgment in W. A. No. 302 of 1982 dated 27-7-1982, related to the grant of a permit on a short route to which case the question of awarding marks could not have arisen in view of the provisions contained in Clauses (i) and (ii) under 'A' -- Sector or Residential qualification -- in Sub-rule (4) of Rule 177-A of the rules. Those two clauses respectively deal with awarding of marks under the head 'Sector or Residential qualification'. There may also be similar cases under the head 'B' --Business or Technical experience in the field of stage carriage operation, in Sub-rule (4) of Rule 177-A Clauses (i) and (ii) in regard to the awarding of marks to applicants operating stage carriages throughout the State and applicants having experience of more than one year in the operation of stage carriages. Where the process of awarding marks does not come into the picture, it certainly might be open to the R. T. A. to choose whichever applicant was having the longer experience or larger sector qualification, and naturally it might be competent for that authority to choose between the two applicants the one who had the longer experience, in the absence of any other criteria by which they could be differentiated from one another. The decisions cited are, therefore, not authorities for the proposition that, after having awarded marks under sub-rule (4) of Rule 177-A, that could be ignored or superseded by making a fresh assessment of the relative merits under the very same heads for which marks have already been awarded.

11. Now the question that remains for consideration is whether the 4th respondent tribunal was justified in granting the permit to the 1st respondent. It has to be noticed that the tribunal found that the petitioner and the 1st respondent had secured 5 marks each under Rule 177-A and, therefore, other things being equal, the 1st respondent who had a valid licence for driving transport vehicles, was entitled to preference over the petitioner. It was argued on behalf of the petitioner that the intention of the legislature, as could be gathered from the objects and reasons, was to promote the well being of economically weaker sections of the community, and the 1st respondent on his own snowing having been in the field of passenger transport for about 6 or 7 years and being a holder of permits, he could not avail of the preferential treatment by the application of the proviso. The amendment to the proviso entitling a person having a valid licence for driving transport vehicles, to get preferential treatment, other things being equal, over others, came into force only by the Amendment Act, Act 47 of 1978, which came into force on 16-1-1979. The provisions contained in the proviso in terms do not give any such meaning, and it is not for us to read into the section something which is not in the section unless there exists some ambiguity or the plain meaning would lead to some awkward result. In any event, the 1st respondent not having availed of this preference earlier, it would be reasonable to hold that the preference given to him over the petitioner has only to be upheld.

12. The counsel for the petitioner submitted that the route being a long route, the petitioner who was a fleet owner ought to have been preferred. The 1st respondent also admittedly is operating service on long routes, as on the route to which the application relates, as noted in Ext. P-2 order of the 3rd respondent, the 1st respondent is having a sector of 8ft Kms. In any event, such considerations could not override the preference statutorily recognised in favour of the 1st respondent.

13. It was also argued by the counsel for the 1st respondent with reference to the averments made in paragraph 3 of the counter affidavit that the petitioner had sought and obtained variations of the route, avoiding a sector of 16 Kms., (Pandikkad, Karuvarakundu, Kalikavu and Nilambur) to make the enterprise more remunerative and economically viable, forgetting his duty to cater to the needs of the travelling public of that sector. That very sector is involved in the present case also. According to the counsel for the 1st respondent, if the permit is granted to the petitioner, it might so happen that what was done with respect to the routes granted for KRE. 8047 and KLM. 1658 would be repeated, thus depriving the purpose for which the grant of the permit is intended, in so far as the people of the sector Pandikkad, Karuvarakundu, Kalikavu and 'Nilambur are concerned. One cannot predict what the petitioner might choose to do if and when he gets a permit on the route. It is not, however, necessary for this Court to go into such regions of imponderabilities, as I am satisfied on the facts of the case which, after all relates to the grant of a temporary permit, that the 4th respondent has acted bearing in mind the salutary provisions of Section 47 (i) of the Act, namely, that the interest of the public generally, and the advantages to the public of the service to be provided, are the paramount considerations which should weigh with the authority that grants the permit. The petitioner and the 1st respondent having obtained equal marks on assessment of their relative merits under Rule 177-A, in the absence of any other material fact in favour of the petitioner to override the effect of such assessment, the 4th respondent has done only the right thing in granting the permit to the 1st respondent who was entitled to a statutory preference in terms of the first proviso to Rule 177-A (4) of the Rules.

The result therefore, is that the writ petition fails and is dismissed, however, in the circumstances of the case, without any order as to costs.


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