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Bharath Motors Vs. Kerala State Transport Appellate Tribunal, Ernakulam and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberO.P. No. 3570 of 1980
Judge
Reported inAIR1982Ker241
ActsMotor Vehicles Act, 1939 - Sections 24(2), 46, 49, 50, 57, 57(7) and 63(7); ;Kerala Motor Vehicles Rules, 1961 - Rules 186, 186(2), 329CI and 329CI(7)
AppellantBharath Motors
RespondentKerala State Transport Appellate Tribunal, Ernakulam and ors.
Appellant Advocate S. Narayanan Poti, Adv.
Respondent Advocate Thampan Thomas,; V.M. Narayanan,; K.P. Dandapani,;
DispositionPetition allowed
Cases ReferredState Transport Authority v. Chinnaraju
Excerpt:
.....that no vehicle was ready to be put on road - regional transport authority (rta) is authorised to grant permit in respect of vehicles and bound to give reason for rejection under section 57 (7) - rta failed to state reason of rejection - decision of rta not justified. - - ' 12. the above quoted provision clearly says that an applicant can be called upon to produce the documents which will support his ownership and possession of the vehicle only after an order sanctioning the permit is passed and communicated to him. the principles stated by the full bench in narayanan's case (air 1980 ker 115) would govern such application as well. the state transport authority would be perfectly justified in sanctioning grant of a permit to an applicant who has a ready vehicle, which conforms to..........motor vehicles act, 1939 (hereinafter mentioned as the act) enables a state transport authority to grant permits valid for the whole or any part of india in respect of such number of tourist vehicles as the central government may in respect of that state specify in that behalf. the grant of permits thereunder, as provided for therein, would be governed by the rules that may be made under the act. the provisions of sections 49, 50, 51, 57, 58, 59, 59a, 60, 61 and 64 shall, as far as may be, apply in relation to permits granted under section 63 (7) of the act. under the proviso to sub-section (7) preference is to be given to applications for permits from the india tourism development corporation; a state tourism development corporation; a state tourist department; and such operators of.....
Judgment:

George Vadakkel, J.

1. Sub-section (7) of Section 63 of the Motor Vehicles Act, 1939 (hereinafter mentioned as the Act) enables a State Transport Authority to grant permits valid for the whole or any part of India in respect of such number of tourist vehicles as the Central Government may in respect of that State specify in that behalf. The grant of permits thereunder, as provided for therein, would be governed by the Rules that may be made under the Act. The provisions of Sections 49, 50, 51, 57, 58, 59, 59A, 60, 61 and 64 shall, as far as may be, apply in relation to permits granted under Section 63 (7) of the Act. Under the proviso to Sub-section (7) preference is to be given to applications for permits from the India Tourism Development Corporation; a State Tourism Development Corporation; a State Tourist Department; and such operators of tourist cars, or such travel agents, as may be approved in this behalf by the Ministry of the Central Government dealing in tourism.

2. The question raised in this case is as to whether Rule 186 of the Kerala Motor Vehicles Rules, 1961 framed by this Stale in exercise of powers conferred on it by the provisions of the Act would be attracted to grant of permits under Sub-section (7) of Section 63 of the Act. The State Transport Authority, the second respondent herein, as per Ext. p. 1 order took the view that the same would not be attracted to such a case. According to the second respondent, only those applicants who offer ready vehicles registered in their names in Kerala on the date of hearing of the application would be entitled to permits under Section 63 (7) of the Act. Stating that the applicant did not have any ready vehicle his applica-- tion for permit under Section 63 (7) of (he Act was rejected by the second respondent along with some other applications as per Ext. P. 1 order dated 23-2-1980. The petitioner preferred Ext- P. 2 appeal before the State Transport Appellate Tribunal, Ernakulam, the first respondent herein. That Tribunal upheld the rejection of the application submitted by the petitioner by the second respondent-authority on the ground that the petitioner had no ready vehicle. It appears from Ext p. 3 judgment in an appeal filed by another applicant that according to the first respondent Tribunal also, it was necessary that the applicant should have a vehicle ready to be put on the road fin case the permit is granted to him) at least by the time when his application comes up for consideration.

3. Rule 186 reads :--

'186. Permits -- Entry of registration mark compulsory -- Time for entry - (1) No permit shall be issued until the registration mark of the vehicle to which it relates has been entered therein.

(2) When the applicant is unable to produce the certificate of registration on the date of his application for the permit, owing to the fact that he is not on that date in possession of the vehicle duly registered, or for some other reason, the applicant shall within one month of the sanctioning of the application by the Regional or State Transport Authority, or such longer period or periods not exceeding four months in theaggregate as the Authority may specify produce the certificate of registration of the vehicle before that Authority in order that the particulars of the registration mark may be entered in the permit, In the event of any applicant failing to produce the certificate of registration within the period specified by the Transport Authority, the Authority may revoke its sanction of the application.

(3) The power vested in the Regional or State Transport Authority under Sub-rule (2) shall also be exercised by its delegate in respect of orders passed under the delegated powers.'

4. Commenting upon sub-rule (2) of Rule 186 a Full Bench of this Court in Narayanan v. R. T. A., Trichur (1980 Ker LT 249): (AIR 1980 Ker 115) said in respect of an application for permit for a stage carriage that such an application cannot be rejected for the sole reason that it does not contain the particulars of the vehicle owned or possessed by him and that if the applicant is otherwiss found suitable for the grant of such a permit, its grant can be ordered even in cases where he is not ready with a vehicle on the dale of the application or its consideration.

5. No doubt, the aforesaid case concerned grant of stage carriage permit under Sections 46 and 47 of the Act. However, it was conceded by the learned Government Pleader that Sub-rule (1) of Rule 188 would govern issue of all kinds of permits under the Act. But according to him, Sub-rule (2) would not be attracted to grant of permit under Section 63 (7) of the Act in respect of a tourist vehicle. It is difficult to accept the submission as aforesaid, because applying the normal rule of construction, the word 'permit' in both the sub-rules, Sub-rules (1) and (2) of Rule 186, is to be presumed to have been used in the same sense. 'It has justly been remarked that, when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events reasonable to presume that the same meaning is implied by the use of the same expression in every part of the Act'--Maxwell on the Interpretation of Statutes, 12th Edn. P. 278. So understood, sub-rule (2) would be attracted to the issue: of any kind of permit in respect of any kind of vehicle under the Act.

6. It is contended that the Full Bench decision referred to above turned on the form P. S, P. A. contemplated by Rule 175 of the Rules. Rule 175 provides that an application for a permit shall bo in one of the forms mentioned therein and the form P. Section P. A. is the form prescribed for applying for a permit in respect of a stage carriage. The form prescribed lor applying for a permit in respect of a tourist vehicle is form T. V. P. A, It has been so prescribed by Rule 329CI (ii)of the Rules. The submission is that the form P.S.p.A. contains a statement to the effect that: 'I/We have come in possession of the vehicle on....I/We have not yet obtained possession of the vehicle'--According to the learned Government Pleader the Full Bench noticing this statement in the alternate, took the view that the form itself envisages a situation where the applicant has not yet obtained possession of the vehicle. The learned Government Pleader submits that in Form T.V.P.A. there is no such statement 9nd that therefore the Full Bench decision would not be attracted to the sanctioning of the grant of a permit in respect of a tourist vehicle.

7. No doubt, the Full Bench in Nara-yanan's case (AIR 1980 Ker 115) overruled the arguments advanced on behalf of the respondents based on the statement in the alternate in form P.S.P.A, The argument advanced was that in view of the requirement mentioned in form P.S.P.A. that the application should show the 'registration mark', 'type of vehicle', 'seating capacity' and 'maximum laden weight' of the vehicle, it is mandatory under Section 46 read with Rule 175 (a) that the applicant should have obtained possession of the vehicle on the date of the application. This argument was dismissed by referring to the provision thai the form itself envisages a situation where the applicant is not in possession of the vehicle. However, it cannot be said that the decision was based on the form. The decision is rested on Ihe construction placed on the Rule. Moreover, so far as form T.V.P.A. is concerned, the applicant is not required thereunder to state either that he possesses the vehicle or he does not possess the vehicle. In that view, I do not think that any thing turns on the absence of a provision as regards possession of the vehicle for which permit is sought in form T.V.P.A.

8. The learned Government Pleader referred me to Section 46 of the Act, It is jointed out that an application for permit thereunder need contain the parti-culars mentioned therein, only 'as far as may be'. The submission is that under Section 49 of the Act, which deals with application for permit in respect of contract carriages, the application shall contain the particulars mentioned therein, The particulars required to be mentioned in an application under Section 49 are: the type and seating capacity of the vehicle or each of the vehicles, the area for which the permit is required and so on. Elaborating this argument it is submit led that a tourist vehicle as defined in Section 2 (29A) of the Act is one class oi contract carriages and Section 49 is attracted to an application for permit under Section 63 (1) by that provision itself and that thereunder it is peremptory and mandatory on the part of the applicant to mention in the application the type and seating capacity of Ihe vehicle or each of the vehicles in respect of which permit or permits are sought for.

9. A 'tourist vehicle' as per Section 2 (29A) of the Art being a contract carriage and since Section 63 (7) in terms says that among other Sections of the Act, Sections49 to 51 shall aPPly in relation to an All-India tourist-vehicle-permit, it can safely be said that Section 49 governs the petitioner's application for permit; Section 50 prescribes the procedure to be followed by *'e second respondent in considering that application; and Section 51 deals with the disposal of that application, as contended for by the learned Government Pleader, His further argument in support of Exts. P. 1 and P. 2 orders is that unlike Section 46 which provides that an application for stage-carriage-permit shall, 'as far as may be' contain Ihe particulars mentioned therein, Section 49 requires that the application for a contract-carriage-permit 'shall contain' the particulars mentioned therein one of which is 'the type and seating capacity of the vehicle or each ot the vehicles', and that unless the applicant is in possession of the vehicle on the date of the application he would not be in a position t0 furnish the details as regards the type and sealing capacity of the vehicle in the application,

10. What Section 49 requires is that the application shall contain the type and sealing capacity of the vehicle the applicant proposes to use as a conlract-carriage in public places, whereupon use of transport vehicles is, by Section 42 of the Act, prohibited, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority. That section does not, however, say that the application shall contain the registration mark assigned under Section 24 (3) of the Act to the vehicle proposed to be used as a contract carriage or the contents Or even the sub-Stance of the certificate of regislralion concerning the vehicle issued tender Section 24 (2) of the Act. These are the matters which would prove ownership and possession of a vehicle tor the purposes of the Act,

11. Rule 329C-I (vii) relating to issue of permit under Section 63 (7) of the Ad reads:--

'329C-I. Grant of permits for Tourists Vehicles for AH India Operaiion.

XX XX XX Xx(vii) Issue of permit -- On receipt ofthe order sanctioning the permitthe grantee shall, within 'heprescribed period, produce thecurrent records of the vehicle'including the certificate of registration,certificate of fitness, certificate of insurance, evidence for payment of lax dueunder the provisions of the relevantTaxation Act and a certificate from theRegistering Authority concerned to theeffect that the vehicle in respect ofwhich the permit is to be issued, conforms to the description, requirementregarding the seating capacity, standardsof comforts, amenities and other matterswhich the Central Government mayspecify from time to time under Clause (i) ofSub-section (10) of Section 63 of the Act.'

12. The above quoted provision clearly says that an applicant can be called upon to produce the documents which will support his ownership and possession of the vehicle only after an order sanctioning the permit is passed and communicated to him. Even thereafter he is required to produce such documents only within the prescribed period. It cannot have been the intention of the legislature that the applicant is required to slate such facts in his application, which on being contradicted or doubted, he cannot be compelled to prove and establish. The only provision that prescribes a period in that behalf is Rule 186 occurring in Chap, V of the Rules containing Rules relating to the 'Control of Transport Vehicles'. In this context it is to be noticed that Section 63 (7) of the Act occurs in Chapter IV of the Act containing provisions on 'Control of Transport Vehicles' and that a contract carriage, (andtherefore, also a tourist vehicle) is a public service vehicle as defined in Section 2 (25) and consequently, both are transport vehicles within the meaning of the definition clause, Section 2 (33) of the Act.

13. It may in (his connection be mentioned that very often Ihe grant of a per-mil will be delayed for many reasons. In this case itself Ihe first notification inviting applications was issued in the Gazelle dated 21-7-1978 (1979?) and the second, in that dated 9-10-1979. Whatever the reason, the consideration of the applications received within 30 days of the Gazette notifications as required by the respective notification look place only on 23-2-1980. It will be too much to expect of an applicant, who submitted his application within 30 days of 21-7-1979 and 9-10-1979, to be possessed of the vehicle in respect of which the application is submitted and to have the same kept idle till the consideration of the said application long thereafter. It should also be borne in mind that anybody who applies for permit in respect of a tourist vehicle, even if he is possessed of such a vehicle on the date of application, would not as of right be entitled to a permil. This is so because permits can be issued only in respect at such number of tourist vehicles as have been allocated to each State by the Central Government -- the present allocation so far as this State is concerned is 50 such vehicles. Taking into account these pragmatic considerations and the legal provisions discussed above, it appears lo me that Rule 186 (2) of the Rules would govern an application for permil in respect of a tourist vehicle submitted under Section 63 (7) of the Acl read with Rule 329 CI of the Rules.

14. I am supported in the view taken as aforesaid by a Division Bench decision of the Mardras High Court in State Transport Authority v. Chinnaraju, (AIR 1981 Mad 74). That decision concerned grant of 'national permit under Section 63 (11) Of the Act, Under Sub-section (11) of Section 63 the appropriate authority may, for the purpose of encouraging long distance inter-Slate road transport, grant, in a Slate, national permits to the owners of motor vehicles who use, or intend to use, such vehicles for the carriage of goods, for hire or reward. Under that sub-section also the Central Government is in specify the number of motor vehicles for which such national permit could he given in relation to a State. The said sub-section says that the grant of a national permit under that sub-section is to be 'subject to the rules that may be made by the Central Government under Sub-section (15)' of Section 63. (Mark, there is no such limitation so far as Sub-section (7) of Section 63 in concerned, which provides that the grant of a permit thereunder is to be 'subject to any rules that may be made under this Act'). Considering the question as to whether Rule 163 (b) of the Tamil Nadu Motor Vehicles Rules, 1940, which substantially corresponds to Rule 186 (2) of the Rules would govern an application for permit under Section 63 (11), the Madras High Court said that the same would be attracted. It was pointed out therein that the provisions in Rule 163 (b) of the Tamil Nadu Motor Vehicles Rules, 1940 is very general in terms and that therefore the same would govern an application for national permit.

15. In view of what is stated above, the guideline drawn up by the respondents that unless the applicant is ready with the vehicle on the date the application is taken up for consideration, the application need not be considered cannot be sustained. The principles stated by the Full Bench in Narayanan's case (AIR 1980 Ker 115) would govern such application as well. In fact this guideline formulated by the respondents is against the contention raised by the learned Government Pleader before me which is that Section 49 and form T.V.P.A. require the applicant to mention in the application the type and seating capacity of the vehicle and that this cannot be done unless the applicant is in possession of the vehicle on the date of the application.

16. Section 63 (7) and Rule 329C-I (v) require the State Transport Authority to consider every application for the grant of All India Tourist Permit in accordance with the procedure laid down in Sections50 and 57 of the Act. Under Section 50 the application is to be considered having regard to the extent to which additional contract carriages, that is tourist vehicles, may be necessary or desirable in the public interest, and, taking into consideration representations that may then be made or which may previously have been made by persons already holding permits in the region or by any local authority or police authority in the region about the sufficiency or insufficiency of the number of tourist vehicles with reference to the needs of the region or any area within the region. The StateTransport Authority has also to assess the necessity for different regions in the State and apportion the total number of permits specified by the Central Government in respect of this State amongst the different regions in the State according to region-wise necessity; See Rule 329C-I (i). The relevant provisions in Section 57 in relation to an application for permit for an All India Tourist Permit are Sub-sections. (1), (6) and (7) thereof relating to time-limit, hearing of representations and the need to give reasons for refusal of permit. Besides these mentioned above, the State Transport Authority has also to consider the suitability of the vehicle for tourist purposes, the experience of the applicant in tourist trade, the bona fides of the applicant, and the interest of the public generally as ascertained by such enquiries as may be deemed necessary. The State Transport Authority is also to be guided bv the matters mentioned in Sub-clause (a) to (c) of Clause (v) of Sub-rule I of Rule 329C of the Rules, and the proviso thereto.

17. While Rule 186 would govern an application for an All India Tourist permit and the sanctioning of the grant of such a permit, it is to be pointed out, that neither the possession of the vehicle for which such a permit is sought by the applicant on the date of his application or on the date of consideration of his application nor mention of such details as registration mark in the application itself or furnishing of such details at the time the application is considered, would in any way disqualify him for the grant of the permit, if he is otherwise qualified for the same. The State Transport Authority would be perfectly justified in sanctioning grant of a permit to an applicant who has a ready vehicle, which conforms to the required specifications, provided he is otherwise qualified and is suitable, in preference to another also equally qualified and equally suitable but who has no ready vehicle. What is to be borna in mind is that, the letter's application cannot be rejected summarily and in limine, for the sole reason that he has no ready vehicle or that his application does not show that he has a ready vehicle. However, if judged by the basic factor of public interest, the latter is more qualified and more suitable than the one who offers a ready vehicle, there is no impropriety or illegality in rejecting the former's application, sanctioning the grant of permit to the latter. In other words, if on a comparative assessment of both, the applicant ready with the vehicle and the other not so ready with the vehicle, as if each of the is ready with the vehicle of the type and seating capacity mentioned in the respective application as required by Section 49 of the Act, the latter not ready with the vehicle is adjudged as more qualified and suitable, the State Transport Authority can and shall sanction grant of permit to the latter in preference to the former, giving the latter time to produce the certificate of registration of the vehicle as provided for in Rule 182 (2) (for the purpose of entering its registration mark in the permit to be issued) along with the other documents mentioned in Clause (vii) of sub-rule of Rule 329C (for the purpose of being (satisfied that permit can be issued pursuant to the sanctioning of grant of 'permit).

18. Section 49 of the Act requires that the application shall contain the particulars mentioned in Clauses (a) to (d) therein. Unlike Section 46 dealing with the contents of an application for stage carriage permit, which requires the applicant to state the particulars detailed therein only as far as may be possible, Section 49 requires that the applicant shall state the parti-iculars mentioned therein. There is still another difference between the two sections, and that is: while Section 49 requires that the application shall contain the type and seating capacity of the vehicle or each of the vehicles, Section 46 is silent about it. However, both the provisions have one similar provision, namely, that the application under Section 46, shall, as far as may be and that under Section 49, shall, contain such other matters as, or any other particulars which, may be prescribed. Both the forms, P.S.A.P. and T.V.P.A. prescribed respectively for an application for stage carriage permit and for All India Tourist Permit require the applicant to mention in the application the registration mark, which under Rule 186 is required to be entered in the permit to be issued with reference to the certificate of registration the applicant has to produce before the issue of the permit Under form T.V.P.A. the applicant has to state further such details of the vehicle as make, year of manufacture, date of registration as new, type of body, seating capacity, colour of body, and 'whether, air conditioned/de luxe. How-ever since the applicant need, as per note 2 in the Form, state therein onlysuch of the details as are applicable to him, it cannot be said that it is mandatory that the application shall contain all these details, except those required to be slated by Section 49 of the Act.

19. The second respondent divided the applications more than 150 in number into 7 groups; (i) those of applicants who were not present to press heir applications; (ii) those of applicants who did not own any ready vehicle; (iii) those in respect of vehicles which did not conform to limit (of seat-ing capacity) specified by the Government of India; (iv) those in respect of vehicles of 1975 and earlier models; (v) 'hose of applicants who did not produce certificate of registration; (vi) those in relation to vehicles which have not been transferred to the applicants; and (vii) those in respect of vehicles registered outside Kerala in the name of the concerned applicant but in different address. One of the applicants, Sl. No. 8, though present did not press his applications. The state Transport Authority's consideration of the matter is as follows:

'The State Transport Authority carefully considered all the applications including those of the absentees and evaluated their relative merits in the light of the guidelines adopted by them. They have also considered all the representations made in connection with the consideration of the applications as laid down in Section 50 of the M. V. Act. In the light of the foregoing, the State Transport Authority decided to select the following applicants and grant them one permit each in respect of the vehicle offered by them.'

So stating the second respondent-Authority sanctioned grant of permit to 5 applicants. They are respondents 4 to 8 herein.

20. The second respondent has, to say the least that could be said about the manner in which it discharged its statutory responsibility, acted perfunctorily. The order does not show that the Authority has applied its mind to the several matters that it is required to take into consideration by the Act and the Rules, nor has it given any reason for refusal of the large number of applications which it is bound to give under Section 57 (7) of the Act. It is necessary to remind that Authority that under the scheme of the Act and the Rules and in public interest, a grave responsibility is cast on it in the matter of sanctioning grant of permits under the Act which it cannot discharge in such puerile manner. The order refusing grant of permit is an appealable order and therefore also it is necessary for this Authority to write a speaking order revealing as to how its mind worked whenever it refused an application for permit. Suffice to point out that the way in which the second respondent has dealt with the matter is very unsatisfactory,

21. It does not appear that the petitioner has preferred any appeal against the order granting permits to respondents 4 to 8 and the learned counsel for ihe petitioner fairly conceded before me at the time of arguments that no relief is sought for against these respondents. The petitioner's appeal before Ihe first respondent-Tribunal concerned only the rejection of the petitioner's application. The Tribunal dismissed this appeal for she reason that the petitioner had no ready vehicle at the time the second respondent considered the applications nor when Ext. p-1 order was passed by the second respondent nor even when the first respondent-Tribunal was hearing the matter. In the backdrop of the discussion on this point earlier herein, Ext. P-2 order cannoi be sustained and I quash the same. The first respondent-Tribunal is directed to consider the petitioner's appeal, M- V. A. A. 141 of 1980 on its file afresh and to dispose of the same in the light of the principles discussed hereinbefore and in accordance with law.

22. Petitioner has produced Ext. p-3, appellate judgment in M. V. A. A. No. 74 of 1980 rendered by the first respondent-Tribunal stating that the first respondent has formulated therein the legal point,' arising in Ihe several cases and that Ihe answers thereto given by the Tribunal in Ext. P-3 were applied in petitioner's Ext. P-2 appeal and other appeals against Ext. P-1 order of the second respondent Authority; and has sought to quash the same. No case on facts has been pleaded, or advanced before me against Ext. p-3 judgment. M. V. A. A. No. 74 of 1980 in which Ext. P-3 decision, was given by the first respondent-Tribunal was filed by the 9th respondent herein. By that decision the first respondent-Tribunal allowing the appeal sanctioned grant of one permit to the 9th respondent giving him time to produce the registration certificate and other documents before the second respondent-Authority within 30 days of that decision. No grounds have been made out to interfere with that decision,

23. Respondents 10 to 19 are also persons whose applications were rejected by the second respondent-Authority and to whom, allowing their respective appeals, the first respondent-Tribunal sanctioned grant of permits. Though the learned counsel for the petitioner sought to have the decisions sanctioning permits to them set aside, as in the case concerning the nineth respondent, there is absolutely no pleading on facts warranting interference with thesa decisions. Moreover, even the judgments disposing of their appeals are not before me. Nor has the petitioner asked for any relief as against those respondents or in respect of the decisions in their favour of ihe first respondent-Tribunal. In the result this original petition is allowed to the extent indicated in paragraph 21 above. The parlies shall suffer their costs,


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