JUDGMENT
Ar. Lakshmanan, Ag. C.J.
1. Mr. A. Inees for appellant, Mr. Alexander Thomas, Government Pleader for respondents 1 and 2 and Mr. K. V. Gopinathan Nair for respondent No. 3.
2. The appellant is the petitioner in O. P. 12364/99. He filed this appeal against the judgment in the Original Petition which was filed against Ext. P 2 order by which a temporary permit was issued on the route Eriyad-Manjerto the third respondent by the Secretary, Regional Transport Authority on the direction of the second respondent viz., The Chairman, Regional Transport Authority, Malappuram. The appellant’s contention was that the Chairman, Regional Transport Authority has no jurisdiction to grant a temporary permit and that the temporary permit can be granted only if there is an existence of temporary need under any of the various clauses coming under Section 87(1) (a) to (c) of the Kerala Motor Vehicles Act 1988 and that there should be an existence of temporary need and a finding to that effect while granting a temporary permit. Mr. A. Inees submitted that existence of temporary need is the jurisdictional precondition for the grant of a temporary permit. According to him, the authority which can grant the temporary permit Is the Regional Transport Authority of the respective region where the route lies and that the power of the Regional Transport Authority can be delegated under Rule 133 of the Kerala Motor Vehicles Rules, 1989. The delegated authority Is the Secretary of the Regional Transport Authority according to Rule 133(1)(j) of the Kerala Motor Vehicles Rules, 1989 and that the Chairman, Regional Transport Authority is not delegated with that power. By order dated 15-5-99 the Secretary, Regional Transport Authority, Malappuram Issued a temporary permit for four months to the third respondent to operate on the route in question stating that the
Chairman, Regional Transport Authority directed to issue temporary permit for four months, which is produced and marked as Ext. P 2. It is contended that the Chairman, Regional Transport Authority has absolutely no jurisdictional to grant a temporary permit and the Secretary, RTA cannot issue the temporary permit stating that the Chairman has directed to issue the temporary permit.
3. The contesting third respondent filed a counter-affidavit. According to Mr. K. V. Gopinathan Nair, the Original Petition itself is not maintainable either on law or on facts and that the appellant has no locus standi to challenge Ext. P 2 order before this Court and that the aggrieved party can have a statutory remedy by way of filing a revision petition under Section 90 of the Motor Vehicles Act. Instead of availing the statutory remedy, the appellant filed the Original Petition and therefore the Original Petition, according to him. is liable to be dismissed on that ground Itself. According to Mr. Gopinathan Nair, temporary permits are issued by the Secretary, Regional Transport Authority and the Secretary, RTA is empowered to issue temporary permits on the basis of the powers delegated under Rule 133(1)(j) of the Kerala Motor Vehicles Rules, 1989. He relied on Ext. P1 decision which as issued on 29-2-1996. It is also submitted that the powers are delegated to the Secretary, RTA for the prompt and convenient despatch of business and since the Rule stipulates that the meeting of the RTA have to be convened only after 2 and 3 months and therefore the temporary permits can be granted by the Secretary, RTA in view of Rule 133(1)(j) of the Motor Vehicles Rules on the directions of the Chairman, RTA to issue temporary permit. It is submitted that the Chairman, RTA has not granted regular permit and at the most it can be said that there was a recommendation from the Chairman, RTA. But the permit is sanctioned by the Secretary, RTA itself. Therefore it is submitted that Ext. P2 proceedings issued by the Secretary, RTA is perfectly legal and in accordance with the provisions. Mr. Gopinathan Nair further urged that temporary permit was granted after conducting an enquiry through the field officer and after satisfying that there is temporary need. As per Section 80 of the Motor Vehicles Act an application for a permit to any kind can be submitted by any time and the authorities are bound to grant the same in ordinary circumstances, which exactly postulates that the grant is a normal rule and the rejection of the application is only an exemption. Therefore the appellant who claims to be an existing operator cannot question the finding of a statutory authority and cannot challenge or object the grant of permit in favour of another person.
4. J. B. Koshy, J. by judgment dated 1-7-1999 disposed of the Original Petition with the following observations :–
“Petitioner tiled this Original Petition against Ext. P2 order. Ext. P2 order is a revisable order. Therefore petition under Article 226 of the Constitution of India will not lie. However, since the O. P. was admitted, time for filing revision application from 24-5-1999 till today may be excluded and if the petitioner files a revision application within the statutory limit excluding the period from 24-5-1999 to 1-7-1999, it may be entertained by the State Transport Appellate Tribunal.”
5. Being aggrieved by the above judgment, the above Writ Appeal has been filed. It is submitted by Mr. A. Inees that against the grant of a temporary permit no appeal is provided under the Motor Vehicles Act and immediately on passing Ext. P2 order the temporary permit was issued and therefore no effective order of stay can be obtained from the State Transport Appellate Tribunal. He also relied on the judgment in O. P. 14051/98 dated 28-7-88 wherein K. S. Radhakrishnan, J. has held that the order issued by the Secretary, RTA on the basis of the orders of the Chairman of the RTA, Idukki has no legal effect. The same view was taken by C. S. Rajan, J. in O. P. 12066/98 dated 13-7-98. This apart, this Court in the decisions reported in A. C. Louis v. R. T. A., Kottayam, 1977 Ker LT 241 and Bahuleyan v. RTA, Alleppey, 1977 Ker LT Case No. 14 (S. Notes Page 6) had held the position of law and therefore Mr. Inees submitted that Ext. P2 order was passed without jurisdiction. In the above circumstances and in view of the decisions referred to above the appellant filed the Original Petition against Ext. P2 which was admitted and notice was issued to respondents and the learned single Judge, however disposed of the Original Petition on the ground that Ext. P. 2 is a revisable order. There was no stay during the pendency of the Original Petition and the third respondent was allowed to operate his bus on the route on the basis of
a temporary permit issued to him. Even as directed by the learned single Judge, If a revision is filed before the State Transport Appellate Tribunal, notices will have to be issued to the respondents and the records of the case called for and received, which will take considerable time and the illegality will be perpetuated and the revision petition ultimately will become infructuous. He also cited Ramakrishnan v. State Transport Appellate Tribunal, Ernakulam, 1960 Ker LT 136 : (AIR 1960 Ker 245) for the proposition that as the permit is already issued, no stay order can be obtained from the State Transport Appellate Tribunal in view of the said decision.
6. On the question of maintainability of the writ petition, we are of the opinion that there is force and merit in the submission made by the learned counsel for the appellant. It is pointed out by the counsel for the appellant when Ext. P2 order was passed without Jurisdiction which is a non-appealable order, a writ petition under Article 226 of the Constitution of India is the proper and effective remedy. We, therefore, hold that the writ petition under the circumstances is the proper and effective remedy.
7. We have already noticed that the temporary permit was issued for a period of four months to the third respondent on the directions of the Chairman, RTA. Section 87 of the Motor Vehicles Act deals with the grant of temporary permits which gives power to the RTA to grant a temporary permit on the existence of a temporary need. Section 87 of the Motor Vehicles Act is extracted hereunder :–
“87. Temporary permits (1) A Regional Transport Authority and the State Transport Authority may without following the procedure laid down in Section 80, grant permits, to be effective for a limited period which shall, not in any case exceed four months, to authorise the use of a transport vehicle temporarily-
a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or
b) for the purposes of a seasonal business, or
c) to meet a particular temporary need, or
d) pending decision on an application for the renewal of a permit, and may attach to any such permit such condition as it may
think fit.”
8. The powers of the Regional Transport Authority are delegated under Rule 133 of the Kerala Motor Vehicles Rules 1989. This rule empowers the RTA to delegate his powers to the Secretary for, any/or of the grounds mentioned in the said Rule. In this case we are concerned with the exercise of powers under Section 87 of the Motor Vehicles Act to grant or refuse a temporary permit under Rule 133(1)(j) of the Motor Vehicles Rules, 1989. Rule 133(1)(m) deals with the power of the RTA to grant temporary permit under Sub-section (7) of Section 88 of the Motor Vehicles Act. The only Rule which empowers the RTA to delegate his power to its Chairman is the power to grant prior concurrence referred to in Sub-rule (c) of Rule 170 only. A reading of the above Rule would disclose that there is no delegation of power to the Chairman, RTA to grant permit under Rule 133(4) of the Rules. Rule 133(1)(j), (m) and (4) is extracted hereunder :–
“133. Power of Regional Transport Authority — Delegation to Secretary :– (1) The Regional Transport Authority may, for the prompt and convenient despatch of business, by general or special resolution delegate to the Secretary, any or all of the following functions :–
XX XX X
(j) power under Section 87 of the Act go, grant or refuse a temporary permit;
XX XX (m) power to grant temporary permit under Sub-section (7) of Section 88 of the Act. XX XX X (4) The Regional Transport Authority may, by general resolution, delegate to its Chairman, the power to grant prior concurrence referred to in Sub-rule (c) of Rule 170." It is therefore clear that either the RTA or its Secretary alone has the power to grant temporary permit. We therefore answer the question accordingly. 9. Our attention was drawn to the judgment of K. S. Radhakrishnan, J. in O. P. 14051/98 dated 28-7-98. The learned Judge in paragraph 10 of his judgment has held as follows :-- "Under such circumstances I am of the view that the order issued by the Secretary R.T.A. on the basis of the orders of the
Chairman of the R. T. A., Idukki has no legal effect. In any view the period of the permits will expire on 29-7-1998. Hence I am not quashing the Impugned orders. Since I have found that the Chairman. R. T. A., Idukki, has no power to issue temporary permit, the Secretary can Independently decide as to whether temporary permit could be granted in exercise of the powers conferred under Section 87 of the Act.”
C. S. Rajan, J. also in O. P. 12066/98 dated 13-7-98 in an identical matter held as follows :
“I am of the view that Ext. P 2 order has been issued by the second respondent on the basis of the order of the 1st respondent which is without Jurisdiction. I quash Ext. P2. The quashing of Ext. P2 will not stand in the way of the third respondent in applying and getting a temporary permit in accordance with law.”
10. The Government have also filed a statement in the Writ Appeal and submitted that the Regional Transport Office (Secretary, RTA) was on leave during the relevant time and the Joint Regional Transport Officer was only in charge of the post of R. T. O. and the application was submitted by the third respondent before the Chairman, R. T. A., Malappuram after obtaining the report and the Chairman has allowed four months’ temporary permit, considering the request of one N. Kanna, MLA and President, Pandikkad Grama Panchayat. Hence a temporary permit G2/53/99M valid from 17-5-99 to 16-9-99 was issued to operate on the route Eriyad Manjeri. It is also submitted that the timings conference was fixed on 29-6-1999 to settle the appellant’s objections. But the timing conference could not be settled oh this date due to strong objections from other operators and in the meantime on 22-7-99 the permit holder has surrendered the temporary permit, since another permit was issued to him on another route and due to the cancellation of the permit the appellant’s objection does not exist now and he has no grievance. A careful consideration of the rival submissions made by the respective counsel would only show that the learned single Judge ought to have disposed of the Original Petition on merits. The subject-matter is the grant of temporary permit for four months. This court in similar cases held that the orders passed issuing temporary permit by the Secretary, RTA on the direction of the Chairman, RTA who has no jurisdiction to grant temporary permit is illegal and without jurisdiction. As referred to earlier, Ext. P2 order, in our view was an order passed illegally and without jurisdiction and, therefore, is liable to be set aside. As pointed out by the learned counsel for the appellant that there was no finding of particular temporary need justifying the grant of temporary permit entered into by the Chairman, RTA or by the Secretary, RTA. On this ground also Ext. P2 was liable to be set aside. As the challenge in the Original Petition was purely based on legal questions and no factual disputes are relevant to decide the question of jurisdiction, the writ petition, in our opinion, is maintainable. In this view also we hold that the refusal to exercise Jurisdiction under Article 226 of the Constitution of India was not justified.
11. It is pointed out by the learned counsel for the appellant that the appellant is an operator on the route Kalikavu-Areacode and the third respondent is granted temporary permit on the route Eriyad-Manjeri and that the common sector is from Pandikkad to Manjeri for about 12 kms. and the timings issued to the third respondent is clashing with the timings of the appellant.
12. “The Motor Vehicles Act is only regulatory but in so far as the regulations have been Imposed, it must be followed and applied equally to all persons concerned. In other words, every operator operating under the provisions of the Act and Rules has got a right to insist that the statute is complied with so far as the other operators are concerned, if it is not done it will be a clear discrimination. Apart from that it is a clear case of infringement of the right to operate in accordance with the provisions of the Statute.” The above view was taken by a Division Bench comprising of P. Govinda Menon and P. Govindan Nair, JJ. in P. K. Transport, Calicut v. Calicut-Wynad Motor Service (P) Ltd., 1967 Ker LT 650. With respect we follow the said ruling and apply the principles laid down by the Honourable Judges in the case on hand and hold that the appellant who is also an operator operating under the provisions of the Act has got a right to insist that the provisions of the statute is complied with so far as he is concerned. We therefore hold that the appellant was justified in approaching this Court by filing the above Original Petition. We are justified in disposing of the Writ Appeal on merits in the facts and circumstances of the case on hand and the law on the subject. We are also of the view that the authorities, while granting a temporary permit should give a positive finding of a temporary need and the statement of reasons generally support that finding. It is necessary that the RTA should primarily apply its mind before granting a permit.
13. During the pendency of this appeal, the appellant filed C.M.P. 4425/99 to accept Annexures A to C documents and the additional affidavit in evidence. It is stated in the affidavit in support of the above C.M.P. that the Original Petition was filed against Ext. P2 order by which a temporary permit was Issued on the route Eriyad/Manjeri to the third respondent. The appellant’s contention was that the Chairman, RTA has no jurisdiction to grant a temporary permit. The writ appeal was filed on 20-7-99. On 22-7-99, the first respondent issued a temporary permit on another route Shappinkunnu-Eriyad-Koyalampara to the third respondent which is substantially the same route and also issued a set of timings which is in clash with the appellant’s timings. This temporary permit was issued after surrender of the earlier temporary permit on the route Eriyad-Manjeri by the third respondent, which is the subject matter of O.P. 12364/99 and this Writ Appeal. According to the learned counsel for the appellant the temporary permit was issued after surrender of the earlier temporary permit in order to make the Writ Appeal infructuous. A true copy of the said order dated 22-7-1999 has been filed and marked as Annexure A. In Annexure A order, the first respondent mentioned order of the 2nd respondent dated 9-7-99 as circulation. According to the appellant there was no circulation and the second by himself granted the temporary permit. Therefore, on receipt of the certified copy of the order, the above C.M.P. has been filed along with true copies of Annexures A, B and C. According to the appellant, there was no circulation as contemplated under Rule 130 of the Kerala Motor Vehicles Rules to every members of the authority, viz., the Superintendent of Police, Malappuram and Deputy Transport Commissioner, Central Zone-I, Thrissur. There was also no urgency. Still, respondent No. 2 has granted
the permit/readily, that too stating by circulation. The proceedings, according to the appellant, is a mala fide one and obviously done at the instance of the third respondent to make the writ appeal pending before this Court infructuous. It is therefore prayed that this Court should be pleased to invalidate annexures A to C orders by issuing appropriate Orders. Annexures A to C orders are not the subject-matter of the proceedings in O.P. 12364/99 or the writ appeal. We, therefore, without expressing any opinion on the allegations made in the above affidavit, reserve liberty to the appellant to challenge Annexures A to C by Initiating appropriate proceedings and if such proceedings are initiated, it is open to the third respondent to defend the same in a manner known to law. Writ appeal is allowed. However, there will be no order as to costs.
14. It is represented that RTAs is to meet once in a month only and, therefore, there is likelihood of delay in getting temporary permits. In such a situation, there is no bar in RTAs giving power to the Secretary, RTA under Rule 133(J) of the Rules or circulate the application among the members of the RTA under Rule 130. Unless RTAs take urgent steps to consider and issue temporary permits, the very purpose of submission of application for Temporary permits itself is lost. We, therefore, direct the RTAs to bear this direction in mind and dispose’ of the application in accordance with law.
It is also brought to our notice at the time of hearing that the transport authorities are not strictly following the procedures contemplated for grant of temporary permits under Section 87 and Rules 130 and 133 of the Rules. We, therefore, direct the Registry to forward a copy of this judgment to the Transport Commissioner, Transport Bhavan, East Fort, Thiruvananthapuram with a further direction to forward this judgment to all the Regional Transport Authorities in the State for information and for its strict adherence to the same.
Writ appeal is allowed.