IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 26-7-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.8066 of 2010 M.P.No.1 of 2010 Dalmia Magnesite Corporation, Salem 636012 rep.by its General Manager, S.Veeraraghavan ... Petitioner Vs. 1. State of Tamil Nadu, rep.by the Commissioner and Secretary to Government, Transport Department, Secretariat, Chennai 9. 2. The Regional Transport Officer, Salem West-10, Salem 636 005. ... Respondents The prayer in the writ petition is to issue a writ of mandamus forbearing the respondents, their men, agents and servants from preventing or interfering with the use, by the petitioner of the private service vehicle bearing No.TN-30/0004 for carrying the children of the Employees of the petitioner. For Petitioner : Mr.T.Poornam For Respondents : Mr.R.Thirugnanam, Special Government Pleader O R D E R
The prayer in the writ petition is for issuing a writ of mandamus forbearing the respondents, their men and agents and servants from preventing or interfering with the use of petitioner’s Private Service Vehicle bearing registration No.TN-30/0004 for carrying the children of the employees of the petitioner Company to Schools.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) The petitioner is a Public Limited Company, registered under the Indian Companies Act, 1913, having its office at Dalmiapuram in Tiruchirapalli District. The head office of the petitioner Company is located at Vellakkalpatti, situated 7 Kms away from Salem Junction.
(b) Petitioner’s factory and staff quarters are situated at a distance of about 3.5 kms from the National Highway No.47, Salem-Bangalore road. According to the petitioner, 72 employes with their family are residing in staff quarters provided by the petitioner company. Totally 42 children of the employees of the petitioner Company are studying in various schools in and around Salem.
(c) According to the petitioner, one town bus route No.77 provide service to the Company Staff Quarters between 6.00 a.m and 9.00 p.m., six trips daily. The said bus is not covering all the schools, where the children of the employees are studying and the timings of the said town bus are not convenient to all the school going children. Some of the children are between the age group of 3 and 9 years and therefore it is very difficult for them to travel in the town bus and cross the roads as the buses do not come near the school gate.
(d) In view of the said difficulties, the petitioner Company, taking note of the welfare of its employees, extended the facility of transporting their children in a Company bus, bearing registration No.TN-30/0004. The permit of the said vehicle is obtained to transport the employees of the petitioner Company from their residential quarters to the factory premises.
(e) The second respondent issued Service Vehicle Permit bearing PSVP No.16/S/2001 which was issued on 12.4.2001. The said bus has been assessed to tax by the second respondent and the petitioner is regularly paying the yearly tax as assessed by the second respondent. The vehicle is also fully insured along with the passengers. The second respondent objected for the transport of the children of the employees of the petitioner company to their schools on the ground that the said action of the petitioner is in violation of the permit condition.
(f) Petitioner by letter dated 22.3.2010 requested the second respondent to amend the permit so as to enable the petitioner to carry the school going children of their employees to travel in the said bus. The said letter was returned by the second respondent on 26.3.2010 stating that there is no provision under the Motor Vehicles Act, 1988 to amend the said permit. Therefore the petitioner has filed this writ petition with the above said prayer.
(g) The grounds raised in the writ petition are that the private vehicles can be used by its owner to transport its employees, their family and their children without collecting any fare; that the petitioner is using the vehicle for the benefit of the school going children of its employees, which does not amount to violation of any of the provisions of the Motor Vehicles Act or the conditions contained in the permit; that there is no prohibition in the Motor Vehicles Act, 1988, or in Rules and a writ of mandamus could be issued to alter the permit condition; that by not granting permission, the rights of the children of the employees of the petitioner Company are very much affected; and that there is no loss of revenue to the Government.
3. The second respondent has filed counter affidavit contending that as per section 2(33) of the Motor Vehicles Act, 1988, a motor vehicle can carry more than six persons, which can be ordinarily used by, or on behalf of the owner, for the purpose of carrying persons for or in connection with his trade or business. ‘Educational Institution Bus’ is defined under section 2(11) of the Act, which must be owned by a College or School or other Educational Institution and used solely for the purpose of transporting students or staff of the Educational Institution in connection with any of its activities. Permit for Educational Institution Bus is to be applied in Form No.PEVA, whereas the application for permit in respect of Private Service Vehicle is to be applied in Form No.PSVPA. The contention of the petitioner that they are carrying employees’ children in Private Service Vehicle in connection with its trade or business for the employees’ welfare, cannot be accepted. As per the permit condition obtained by the petitioner, only the staff of the petitioner company can travel from Company to their respective residence or from their residence to Company. The action of the petitioner being contrary to the permit condition, the second respondent rightly objected the amendment of the permit sought for by the petitioner by returning the application stating that there is no provision for entertaining such amendment petition. If the petitioner is aggrieved it can file revision against the said order under Section 90 of the Motor Vehicles Act 1988, and therefore the writ petition filed without challenging the return of the application is not maintainable. It is also stated that the petitioner having obtained the permit for the vehicle for specific purpose, the school children cannot be permitted to travel in the said vehicle. as it is in violation of the permit condition. The said permit having been issued under Section 2(33) of the Motor Vehicles Act, 1988, mere change of colour like school bus cannot be accepted and the writ petition is liable to be dismissed.
4. The petitioner has filed reply affidavit contending that the Private Service Vehicles of other companies in and around Salem are carrying the children of their staff members to schools and the same is not prevented by the second respondent and therefore the action of the second respondent is discriminatory. The petitioner is extending the benefit to the school going children of its staff, which is a welfare measure, and the petitioner company undertakes to comply with Rule 239(a) of the Tamil Nadu Motor Vehicles Rules, 1989, by changing the colour of the bus.
5. The learned counsel appearing for the petitioner Company reiterated the contentions raised in the affidavit filed in support of the writ petition as well as in the reply affidavit and also cited the decision of the Allahabad High Court reported in AIR 1996 Allahabad 79 (I.T.I.Ltd., Allahabad v. Passenger Tax Officer) and contended that the bus facilities having been extended to the children of the staff as a welfare measure to its staff members, the same cannot be curtailed by the respondent without any valid reason and by extending such welfare measure to the School going children of the staff of the petitioner Company, no prejudice would be caused to the respondents and therefore the interference by the second respondent is unreasonable and violative of Article 14 of the Constitution of India.
6. The learned Special Government Pleader appearing for the respondents relying upon the provisions of the Motor Vehicles Act, 1988 contended that the petitioner Company having applied for staff bus permit, it is not entitled to use the bus for any other purpose other than the one for which permit was granted. The learned Special Government Pleader cited the Supreme Court decision reported in (1997) 8 SCC 770 (M.C.Mehtha v. Union of India) and the decision of the Division Bench made in W.P.No.47114 of 2002 dated 9.10.2007 in support of his contentions.
7. I have considered the rival submissions made by the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents.
8. The petitioner Company is having a staff bus bearing registration No.TN-30/0004 with seating capacity of 42+1. For the said bus permit was granted with permit PSVP No.16/S/2001 on 12.4.2001. The route/area for which the permit is valid is stated as ‘to ply in Salem District limit’. The purpose for which the vehicle may be used is stated as “conveyance of office staff from company to resident”. The said permit contains a specific clause stating that the permit issued shall be subject to all rules relating to permit made under the Motor Vehicles Act, 1988, and in force for the time being. The permit was issued on the basis of a specific application submitted by petitioner in Form PSVPA, which was issued under Rule 170 of the Tamil Nadu Motor Vehicles Rules, 1989. The said application was submitted for the special permit in respect of contract carriage as defined in Section 2(33) of the Act, which defines Private Service Vehicles. In the prescribed form it has to be specifically stated the route or routes or area for which permit is desired. The petitioner having applied for permit under the above prescribed form, is bound to state the route or routes or area, where the permit is sought for. The petitioner having submitted application for the grant of permit under the above referred form and identified the route by specifically stating the reason as “conveyance of office staff from Company to residence”, the petitioner is bound to scrupulously follow the said condition contained in the permit i.e., the said vehicle can be used only for the purpose for which permit was granted, that too only to transport its staff members from Company to their residence.
9. Even according to the petitioner there are 42 children of the employees are studying in various schools in and around Salem. The said statement makes the petitioner’s position clear that wherever the 42 students are admitted viz, one or more schools, the Company bus has to be taken to drop the children and take them back to their residence at least two times. This being the admitted position, there is definitely variation of permit conditions. The same cannot be sought for by the petitioner under Section 182 of the Tamil Nadu Motor Vehicle Rules, 1989, particularly when the variation sought for by the petitioner was for a different purpose altogether.
10. The respondents are insisting the condition not to transport the School Children of the employees to schools not only on the basis of the Motor Vehicles Act, 1988 and Rules, but also in the light of the judgment of the Supreme Court reported in (1997) 8 SCC 770 (M.C.Mehta v. Union of India). In paragraph 14(1) (A)(f) & (g) of the decision the Supreme Court held as follows:
“14.(1)(A)(f) ……………..
No bus belonging to or hired by an educational institution shall be driven by a driver who has
less than ten years of experience;
been challenged more than twice for a minor traffic offence;
been charged for any offence relating to rash and negligent driving.
All such drivers would be dressed in a distinctive uniform, and all such buses shall carry a suitable inscription to indicate that they are in the duty of an educational institution.
(g) To enforce these directions, flying squads made up of inter-departmental teams headed by an SDM shall be constituted and they shall exercise powers under Section 207 as well as Section 84 of the Motor Vehicles Act.
The Government is directed to notify under Section 86(4) the officers of the rank of Assistant Commissioners of Police or above so that these officers are also utilised for constituting the flying squads.”
In W.P.No.47114 of 2002 dated 9.10.2007, the Division Bench of this Court (S.J.M.,J. (as he then was) and N.P.V.,J.) gave further directions to the Transport Department. Paragraphs 3 to 9 of the judgment reads as follows:
“3. On 7th September, 2007, the Home Department, Government of Tamil Nadu, was allowed time to file affidavit and state whether the decision of the Supreme Court rendered in the case of M.C.Mehta supra, has been implemented in the State of Tamil Nadu in its letter and spirit for the safety of the school children.
4. Pursuant to the said order, a Status Report was filed by the 2nd respondent, wherein the following submissions have been made:-
“4. As a first step, the Zonal Officers of the Transport Department have been asked to take necessary steps as detailed below:-
i.The Regional Transport Officers in their jurisdiction shall convene meeting wherein the Headmasters/ Headmistresses/ Principals of the respective schools and colleges should be invited so as to enable them to observe the Directives of the Honourable Supreme Court’s directions and implement them in letter and in spirit.
ii.The Motor Vehicles Inspectors should see that the Supreme Court’s Directives are scrupulously followed at the time of granting/ renewing Fitness Certificates to the Educational Institutions Vehicles and the Regional Transport Officers should closely monitor this aspect.
iii.The Regional Transport Officers should frequently conduct special checks and book cases of overloading in Educational Institution vehicles.”
5. Consequent on the convening of a Meeting with the officials of Education, Transport, Police and with the Headmasters of the leading schools in this State by the Hon’ble Minister for Secondary School Education, Government of Tamil Nadu and also in order to implement the Directives of the guidelines of the Honourable Supreme Court of India and in order to avert accidents, the following guidelines were issued by the Transport Commissioner, Chennai, to all the Officers of the Transport Department in letter No.18590/H3/2006 dated 17.08.2006 which is annexed herewith. (Circular No.21 of 2006).
i.The checking officials of Transport Department should conduct more number of effective checking of school/college vehicles plying over speedily.
ii.Checking shall be conducted on over loading of students exceeding the permitted capacity in Autorickshaws, Vans, Mini Buses and other categories of vehicles without causing hindrance with the functioning of the schools and they shall be impounded wherever warranted.
iii.The licences of the Drivers depending upon the irregularities shall either be suspended/revoked deterrently.
iv.Regional Transport Officers should take suitable action for provision of Speed Breakers and Sign Boards near the premises of the schools and colleges.
v.The correspondents of schools and colleges and their drivers have to be issued with the instructions wherever and whenever ‘plying with overspeed and negligence of driving’ is noticed. Action shall be taken according to law against the erring drivers.
vi.All the vehicles belonging to Educational Institutions shall be prominently written with on the back and front as ‘Educational Institution Vehicle’ and shall be enforced by the checking officials of the Transport Department.
vii.If the Educational Institution hires vehicles they shall be displayed prominently with ‘On School Duty’ and shall be enforced by the checking officials of the Transport Department, at the time of vehicles checking and at the time of renewal of fitness certificate of such vehicles.
viii.First Aid Box should be provided in all the Educational Institution Vehicles and shall be ensured by the field officers of the Transport Department.
ix.Windows of Educational Institution Vehicles shall be fitted with the Horizontal Grills.
x.Fire Extinguishers shall be provided in all Educational Institution Vehicles and this should be watched by the field officers of the Transport Department.
xi.All vehicles shall be written with the school name and telephone number and this shall be ensured by the Transport Officials.
xii.Doors of the Educational Institution Vehicles shall be fitted with reliable locking facilities.
6. It has also been requested that the Regional Transport Officers shall furnish copies of the above Circular to the District Collectors, Superintendents of Police, Revenue Divisional Officers, Deputy Superintendents of Police and also to widely publicise the above issue through media such as Newspapers, Magazines, Pamphlets etc.”
6. Though the aforesaid submissions have been made in the Status Report, but it appears that the concerned authorities have to comply with the observations of the Supreme Court rendered in M.C.Mehta -VS- Union of India and others reported in (1997) 8 Supreme Court Cases 770.
7. In the facts and circumstances, we direct the respondents to comply with the principles laid down by the Supreme Court in the case of M.C.Mehta supra, in respect to School buses and the buses bearing the school children in its letter and spirit. The checking of overloading, over-speeding, license of drivers and checking of drivers whether any of them is driving in intoxicated condition be made periodically not less than four times in a year. It will be duty of the Home Department, concerned authorities of Transport Department, Superintendents of Police and other police officials of a District to comply with the directions of the Supreme court and of this Court in its letter and spirit. All the Institutions will inform the gist of the Supreme Court’s order and directions of this Court by individual letter or by publication in three daily widely circulated newspapers, two vernacular and one English.
8. So far as the question whether the vehicles carrying school children should be provided with a particular colour to be determined by the State, which may take appropriate decision within six weeks. If any particular colour is suggested by the State, they will notify and inform it to all the schools in general.
9. If the order is violated or not complied with in letter and spirit, it will be open to the petitioner or any other party concerned to bring it to the notice of the Court. Let a copy of this order be handed over to the Counsel for the State for information to all officers.”
(Emphasis Supplied)
11. The decision cited by the learned counsel for the petitioner viz., AIR 1996 Allahabad 79 (I.T.I.Ltd., Allahabad v. Passenger Tax Officer) is in respect of payment of passenger tax for the vehicles used for carrying the employees and their children by the bus owned by a Company. The said judgment cannot be applied to the facts of this case as the petitioner is given permit only to transport the staff members from the factory to their residence and the said bus cannot be used for any other purpose, particularly when the schools are located not within the permitted route. The petitioner is bound by the terms and conditions mentioned in the permit.
12. As far as the petitioner’s contention that other companies are using the staff bus to carry the children of its employees to schools, the respondents are duty bound to see that no one is allowed to violate the permit conditions and if anyone is violating, the petitioner can inform the said fact to the second respondent to initiate action. Merely because some Company is violating the permit condition and the second respondent is keeping quiet, the same cannot be a ground to seek any relief as there cannot be equality in illegality as held by the Supreme Court in the decision reported in (2010) 2 SCC 728 (State of Karnataka v. Gadilingappa) and 2010 (4) Supreme 546 (Bondu Ramaswamy v. Bangalore Development Authority & Others). Thus looking at any angle, mandamus as sought for cannot be issued as it would amount to giving a direction to disobey the conditions mentioned in the permit in terms of Motor Vehicles Act, 1988, which was issued based on the application submitted for a specific purpose.
13. It is well settled proposition of law that no mandamus can be issued by any Court in violation of the statutory provisions. The statutory authority can act only within the statute as held in 2009 (2) Supreme 304 (U.P.State Road Transport Corporation v. Assistant Commissioner of Police (Traffic) Delhi). In paragraphs 20 and 24 the Supreme Court held as follows:
“20. The direction that any breach will be considered to be in contravention of the conditions of the permit which could entail suspension/cancellation of the permit and impounding of the vehicle must be read in the light of the provisions of the Act and not de hors the same. This Court could not and, in fact, did not while issuing the said direction confer a statutory authority upon a person who did not have any such authority under the statute. An order passed by an authority without jurisdiction, it is trite, would be a nullity. It would, therefore, be preposterous to presume that this Court would confer jurisdiction upon an authority whose order would be a nullity and, thus, non est in the eye of law.
24. …….. This Court had merely spelt out the consequences emanating from contravention of the directions. Such directions, if read with the provisions of the Act, would mean that the procedure for suspension/cancellation of the permit and impounding of the vehicle must be followed as contained in the Act. Jurisdiction for the said purpose must be exercised by the authority under the statute. No statutory authority, whether empowered by this Court or otherwise, can act de hors the statute.”
14. In view of the above cited decisions, I do not find any merit in the writ petition and consequently the writ petition is dismissed. No costs. Connected miscellaneous petition is also dismissed.
vr
To
1. The Commissioner and Secretary to Government,
Transport Department, State of Tamil Nadu,
Transport Department, Secretariat, Chennai 9.
2. The Regional Transport Officer, Salem West-10,
Salem 636 005