JUDGMENT
K. Balakrishnan Nair, J.
1. The point that arises for decision in this case is, whether the R.T. A., while granting a permit or subsequently, can attach a condition to it, to the effect that the same shall not be transferred for a period of five years. The brief facts of the case are the following:
2. The petitioner purchased an autorickshaw bearing Registration No.KL-13 E 816 from one Shaju.V. It is already covered by a permit, valid upto 2009. It has been allowed to park within the Kannur municipal limits. The petitioner, along with the said Shaju submitted a joint application for transfer of the permit before the respondent on 1-4-2005. The said application is produced as Ext.P2. Later, that application was returned, stating that the permit of the vehicle, which was allowed to park in the municipal area, cannot be transferred, before the expiry of five years from the date of grant of the permit. The petitioner approached this Court, challenging the said stand of the respondents by filing W.P.(C). No. 15581/2005. This Court disposed of that Writ Petition, by Ext.P4 judgment, directing the R.T.A., to consider and pass orders on the said application. The R.T.A. considered and rejected the application, by Ext.P5 decision dated 27-10-2005. The said decision reads as follows:
Perused the judgment and heard the portion, (sic-petitioner). Since the application is not in accordance with RTA’s decision on 19-01-05, the application is rejected.
3. The decision of the R.T.A. dated 19-1-2005 which the petitioner has quoted in para 3 of the Writ Petition reads as follows:
The Municipal parking number once issued shall not be transferred in a period of at least five years. Only one permit will be given to one applicant.
4. This Writ Petition is filed, challenging Ext.PS, as also the decision dated 19-1-2005 quoted above. According to the petitioner, the said decisions violate her fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India. They are highly arbitrary and discriminatory, it is submitted.
5. The respondents have filed a counter affidavit, supporting the impugned decisions. It is submitted that, affluent persons are engaged in trafficking, in permits of autorickshaws, which are authorised to park in Kannur town limits. To prevent the same, 5 years’ period has been fixed. They also relied on Sections 74(2) and 82 of the Kerala Motor Vehicles Act and also Rule 156 of the Kerala Motor Vehicles Rules, in support of their contentions.
6. Heard the learned Counsel on both sides. The right to purchase and ply an autorickshaw, is a fundamental right, guaranteed under Article 19(1)(g) of the Constitution of India. Reasonable restrictions on the said fundamental right are permissible, under Article 19(6) of the Constitution. But, such restrictions should be authorised by the Statutory provisions. So. the point to be decided is, whether the restriction in transferring the permit before the lapse of 5 years from the grant of permit is authorised by any of the provisions of the Act. The learned Government Pleader submitted that, Clauses (i), (ii) and (ix) of Sub-section 2 of Section 74 authorise the R.T.A., to impose conditions relating to contract carriages, similar to the one impugned in this Writ Petition. The said clauses read as follows:
Section 74(2): The Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:
i). that the vehicles shall be used only in a specified area or on a specified route or routes:
ii). that except in accordance with specified conditions, no contract of hiring, other than an extension or modification of a subsisting contract may be entered into outside the specified area:
xxx xxx xxx ix). that the Regional Transport Authority may, after giving notice of not less than one month: a) vary the conditions of the permit; b) attach to the permit further conditions;
7. Clauses (i) and (ii) have nothing to do with the condition impugned in this case. But, Clause ix (b) appears to authorise the R.T.A., to attach further conditions which are not enumerated under Sub-section 2. But, such further conditions stipulated therein, should be conditions authorised by the provisions of the Act or at any rate they should not run counter to the statutory scheme. The said provision does not authorise imposition of conditions affecting, the fundamental rights of the petitioner. So, the point to be examined is, whether the condition imposed in this case, apparently, invoking Clause ix (b) of Section 7(2) is sustainable, in the light of the statutory scheme. To decide this point, the scope of Section 82, which is the substantive provision dealing with transfer of permits, has to be examined. Section 82 provides that, no permit shall be transferred except with the permission of the Transport Authority, which granted the permit, and shall not operate to confer on any person to whom, a vehicle covered by the permit is transferred, any right to use that vehicle in the manner authorised by the permit. Section 82(1) reads as follows.
Save as provided in Sub-section (2), a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not, without such permission, operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by thepermit.
8. The power granted under Section 82 to the R.T.A., is a power coupled with a duty, which has to be exercised, normally, when circumstances warranting the exercise of that power are shown to exist and an application is filed by a person interested, for exercise of that power. In other words, the R.T.A. cannot say that, it will exercise the power, according to its whims and fancies. Rule 156 of the Kerala Motor Vehicles Rules permits imposition of a condition, that a contract carriage covered by a permit, shall be stationed at a place specified in the permit. The said rule also does not stand in the way of transferring the permit, even if, the petitioner wants to operate the vehicle in the Kannur municipal area.
9. The reason which prompted the R.T.A., to impose the impugned condition is that, certain persons are transferring permits, after obtaining, a premium for the same. The reason for margin in the market of permits is the dearth of permits, which can be got over by granting sufficient number of permits. Going by the scheme of the new Motor Vehicles Act, as interpreted in Mithilesh Garg. v. Union of India , normally, any application for permit should be granted. Restrictions, even in relation to grant of stage carriage permits have been done away within the new Motor Vehicles Act. Therefore, the R.T.A., by the decision concerned, is trying to restrain entry of new faces in the passenger transport industry. So, something which runs counter to the scheme of the Act is sought to be imposed, through back door, by its decisions. Normally, a person should be able to transfer his vehicle along with the permit. The R.T.A. should, normally, grant permission for the same also under Section 80. But, here, a condition has been imposed, that a contract carriage permit granted to an autorickshaw can be transferred, only if five years have elapsed after the grant of the permit. There is no such restriction regarding transfer of stage carriage permits. By the impugned condition, the statutory authority has framed a rule, in advance, imposing fetters on its discretion. The same is an abuse of discretion. Every case has to be examined, according to its merits. A condition, framed in advance, to fetter the statutory discretion of the competent authority has been condemned as ultra vires and unauthorised. (See the F.B. decision reported in Kesavan Bhaskaran v. State of Kerala . It was a case, where the Director of Public Instructions was authorised to grant relaxation of age limit for granting the S.S.L.C. certificate. The D.P.I, fixed a norm that, he will not grant relaxation, for more than two years. The Full Bench of this Court quashed the said condition and said that the D.P.I., being a statutory authority conferred with the discretion by the statute, cannot fetter his discretion by framing rules in advance. I think, this principle will apply here also. For grant of permission to transfer a permit, the R.T.A. cannot frame a norm, not authorised by the Act and statute, and in that process fetter its own discretion. The power to grant permission, to transfer permit, as stated earlier, is a power coupled with duty, which has to be exercised, having due regard to the facts of each case.
10. In the result, the decision of the R.T.A. dated 19-1-2005 relied on in Ext.P5, and also Ext.P5 are quashed. The R.T.A. shall consider the joint application, ignoring, its decision dated 19-1-2005. A fresh decision, in this regard, shall be taken, by the R.T.A., as expeditiously as possible, at any rate within two months from the date of production of a copy of this judgment.
The Writ Petition is disposed of as above.