Madras High Court
S.Raja vs The Secretary on 6 October, 2020
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.No.12531 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.10.2020
CORAM:
THE HONOURABLE Mr. JUSTICE N.ANAND VENKATESH
W.P.No.12531 of 2020 and
W.M.P.Nos.15782 & 15784 of 2020
S.Raja ... Petitioner
Vs.
1.The Secretary
(Home) Transport III Department,
State Government of Tamilnadu,
Fort St. George, Chennai – 600 009.
2.The State Transport Authority -cum-
The Transport Commissioner,
Chepauk, Chennai – 600 005.
3.The Regional Transport Authority, Salem.
4.The Regional Transport Officer,
Salem (West), Salem.
5.The Regional Transport Officer,
Salem (East), Salem.
6.The Regional Transport Officer,
Salem (South)
Salem.
7.The Regional Transport Officer,
1/22
http://www.judis.nic.in
W.P.No.12531 of 2020
Sankagiri, Salem District.
8.The Regional Transport Officer,
Mettur, Salem District.
9.The Regional Transport Officer,
Attur, Salem District. ` ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
praying to issue a writ of certiorarified mandamus calling for the records of
the impugned circular issued by the 4th respondent published in the District
Gazette of Salem District vide No.34 (Na.Ka.No.6213/2019 (E-4) dated
21.11.2019) 27.11.2019 and to quash the same and further to direct the
respondents to grant the auto rickshaw permit to the petitioner as per the
G.O.Ms.No.463 dated 13.5.2020 of the 1st respondent.
For Petitioner : Mr. S.Govindraman
For Respondents : Mr. Mani Gopi
Government Advocate
ORDER
This Writ Petition has been filed challenging the impugned circular issued by the fourth respondent dated 27.11.2019 and for a consequential direction to grant auto rickshaw permit to the petitioner.
2.Heard Mr.S.Govindraman, learned counsel for the petitioner and Mr.Mani Gopi, learned Government Advocate for respondents.
3.The brief facts of the case are as follows:
2/22http://www.judis.nic.in W.P.No.12531 of 2020 The petitioner submitted an application for grant of permit before the fourth respondent. The fourth respondent informed the petitioner that there is an order of ban for the grant of auto rickshaw permits in Salem District and therefore, no permit can be granted in favour of the petitioner. The fourth respondent issued the impugned circular dated 27.11.2019 to the effect that grant of auto rickshaw permit is permanently banned at Salem District. Aggrieved by the same, the present writ petition has been filed before this Court.
4.The learned counsel for the petitioner attacked the impugned circular issued by the fourth respondent mainly on the ground that it runs contrary to the decision taken by the Government in G.O.Ms.No.463 dated 13.05.2010 wherein the Government has lifted the ban on grant of new auto rickshaw permits throughout the State. Therefore, the learned counsel submitted that the circular is ultra vires, the Government Order issued by the first respondent. The learned counsel further submitted that similarly placed person, for whom the auto rickshaw permit was denied by the fourth respondent, approached the State Transport Appellate Tribunal and the State 3/22 http://www.judis.nic.in W.P.No.12531 of 2020 Transport Appellate Tribunal, Chennai, by an order dated 16.09.2019, allowed the appeal and directed the fourth respondent to issue contract carriage auto rickshaw permit within the time stipulated by the Tribunal.
The learned counsel submitted that pursuant to the orders passed by the Tribunal, permit was also issued to the concerned appellant. The learned counsel further submitted that the fourth respondent has issued the circular only based on some objections given by other contract carriage permit holders and there is absolutely no power or authority for the fourth respondent to issue such a circular.
5.The fourth respondent has filed a counter affidavit. The relevant portions in the counter affidavit are extracted hereunder:
"6.It is further respectfully submitted that Salem District Bus Owners Association represented by its Secretary filed writ petition No.23866/2001 under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondents herein to regulate the operation of five seater auto rickshaws by issuing proper and complete guidelines so as to enforce their plying in accordance with the provisions of the Motor Vehicles Act 1988 and the rules framed therein. In the above 4/22 http://www.judis.nic.in W.P.No.12531 of 2020 said writ petition the Salem District Bus Owners Association stated that the auto rickshaws which come under the category of contract carriages as per sec.2(7) of the Motor Vehicles Act, 1988 are bound to comply with the conditions applicable to contract carriages. The grievance of the petitioner is that the auto rickshaws are being operated on town services routes, by collecting individual fare from the passengers, who are picked upo and set down, at all points as a regular stage carriages which is in contravention of the government order. In the writ petition, the above writ petitioner stated that though the Government and transport authorities have always come down heavily on the misuse of the contract carriages and imposed heavy penalty besides, levy of tax for the reasons best known to the transport authorities and the auto rickshaws normally parked near the bus stand, from where they commence their journey, they stop, pick up or set down the passengers along the routes, in the same way as town buses are operated by the members of the Bus Owner's association and therefore, it causes prejudice and financial hardship to the members of the Bus Owners association. In the mean time, in a batch of writ petitions made in W.P.Nos.1423 etc., of 2006 dated: 11.2.2006 and in the Writ Petition No.23866 of 2001 this Hon'ble Court has disposed of those writ petitions dated: 01.02.2010 with the following directions to the Regional Transport Authority, 5/22 http://www.judis.nic.in W.P.No.12531 of 2020 Salem i.e., third respondent in the above writ petition for strict compliance. The extract of the directions of Hon'ble High Court are as under:
1.The Auto rickshaws (Three or six seater) shall not be allowed to operate more than the maximum permitted capacity.
2.The Auto rickshaws shall not be allowed to be altered by .. seating capacity than the permitted limit.
3.No conductor shall be allowed to travel in the auto-rickshaws along with the driver.
4.The auto rickshaws shall not be allowed to either pickup or setting down the passengers at least 200 feet before the bus stops which are earmarked for the stage carriage operators to stop their buses for picking up and setting down the passengers.
5.It shall also be ensured that the auto rickshaws are parked only in the parking zones earmarked as auto stand. For the said purpose, the Regional Transport Authority may also identify a place in between two bus stops preferably in the middle, so as to enable the auto-rickshaws to either pick up or setting down the passengers.
6.The above directions shall be strictly adhered to and its compliance shall be ensured by the Regional Transport authority, Salem himself and that any violation of the condition of permit shall be viewed seriously and stringent action under 6/22 http://www.judis.nic.in W.P.No.12531 of 2020 sec. 86 of the Act shall be initiated against those auto-
rickshaws which violate the above directions by either or suspending the permit granted The petitioners are also entitled to bring to the notice of this court as to the non compliance of any one of the above directions for further action by this Court.
7.It is further respectfully submitted that the Salem Bus Owner's Association represented by its secretary submitted complaint to the Regional Transport Officer, Salem (West - ie., Fourth respondent herein) on 22.06.2017 to ensure that the Auto rickshaws should not be allowed to operate more than the maximum permitted capacity and not be allowed to be altered by providing more seating capacity than the permitted limits. It was also represented that the auto rickshaws should not be allowed either to .. setting down the passengers at least 200 feet before the bus stops which are earmarked for the stage carriage operators to stop their buses for picking up and setting down the passengers and ensured that the auto rickshaws are parked only in the parking zones earmarked as auto stand. For the said purpose, the Regional Transport Authority may also identify a place in between two bus stops preferably in the middle, so as to enable the auto rickshaws to either pick up or setting down the passengers as directed by this Hon'ble Court. Subsequently another complaint was given by the Salem Bus Owner's Association to the same authority on 7/22 http://www.judis.nic.in W.P.No.12531 of 2020 04.08.2017, complaining that the auto rickshaws operating at the entrance of the bus stand which disrupted the traffic and that the buses are unable to come out of the bus stand on time which act also affecting the passengers those who enter the bus stand and further stating that the auto rickshaws pick up or setting down the passengers at the bus stops though it was not earmarked to the auto rickshaws and this act causes inconvenience to the operation of the town buses. The Tamil Nadu State Transport Corporation, Salem Division had also given complaint to the Regional Transport Officer, Salem (West) on 02.02.2018 that the Three Wheeler Auto rickshaws carrying excess passenger than the permitted limit ie., more than seven passengers as share auto and this causes revenue loss to the Tamil Nadu State Transport Corporation, Salem to the tune of Rs.1,50,000/- per day out of the collections of the town buses of the corporation and the auto rickshaws are picking up and setting down the passengers at the bus stop and the same is also causing inconvenience to the public and who are waiting to board and alight the buses at the bus stop. Even though proper action was taken now and then on the erring auto drivers, the Salem Bus Owner's Association again filed W.P.No.30613/2018 before the Hon'ble High Court of Judicature at Chennai with a prayer that this Hon'ble High Court may be pleased to issue a Writ of Mandamus or any 8/22 http://www.judis.nic.in W.P.No.12531 of 2020 other appropriate writ or order or direction in the nature of writ, directing the respondents (ie 1,2,3, 4th ie. The Commissioner of Police, Salem) and 5th ie. Deputy Commissioner of Police, Crime and Traffic Salem) respondents in the aforestated W.P.No.30613/2018 compliance of the direction of this Hon'ble Court dated 01.02.2020 W.P.No.23866/2001 following the judgment of this Hon'ble court in W.P.No.1423 of 2006 dated: 11.02.2006 in letter and spirit and take stringent action against the auto rickshaws violating the conditions and the direction of this Hon'ble court referred ibid and pass or other orders as this Hon'ble court as deemed fit and the writ petition No.30613/2018 is pending before High Court of Judicature at Chennai. In the writ petition the Salem Bus Owner's Association i.e., petitioner has stated 3+1 contract carriage auto-rickshaws have been permitted besides 50 (50+1) seater share auto permits have been issued so as to enable the commuters avail the transport facilities among the public in and around 30 Kilometers radious within Salem city praying to direct the authorities to regulate the plying of three seater auto-rickshaws by issuing proper guidelines by the respondents herein.
8. It is further respectfully submitted that there are about 7003 auto rickshaws are in the district which is excess more than the public use and admitted that the number of permit 9/22 http://www.judis.nic.in W.P.No.12531 of 2020 compare with other Districts of the State is on the higher side. Admittedly, that the Police Department, Bus Operators association, State Transport Corporation had given opinion not to issue new permit for auto rickshaws and in this regard Salem Bus owner's Association filed writ petition W.P.No.30613/2018 seeking action on the auto rickshaw violators and regulating permits. Besides several allegations were raised against the auto rickshaws and to avoid traffic congestion considering the number of town buses both private and Tamil Nadu State Transport Corporation as well in Salem city. It was also reported that the haphazard operation of atuos would pose a problem for more pollution and accident in the district as the existing autos are more than the required public use. Therefore on the aforesaid grounds the 3rd respondent has in exercise of the powers under the Act and Rule 165 of the Tamilnadu Motor Vehicles Rules 1989 imposed a limit upon the number of permits of any class which may be granted for a specified route or a specified area and has already granted such number of permits of that class the Regional Transport Authority, Salem had passed orders banning the grant of auto rickshaw permits in Salem District in the interest of safeguarding the public from the pollution and prevent of accidents and that therefore, the order passed by the Regional Transport Authority Salem is fair, justifiable, quite reasonable 10/22 http://www.judis.nic.in W.P.No.12531 of 2020 and based on the directions of this Hon'ble Court.
9.It is respectfully submitted that it is false and incorrect to say by the petitioner that there is no appropriate remedy to the petitioner except to approach this Hon'ble High Court under article 226 of the Constitution of India. Alternative remedy is available to the petitioner under Sec 89 of Motor Vehicles Act 1988 to seek remedy before approaching the Hon'ble High Court under Article 226 of the constitution. Hence, the petitioner could have approached the State Transport Appellate Tribunal for obtaining such relief that sought for in the writ petition. Further one Thiru.S.Muralidharan, S/o.Sekar 661, VeeranamHarijan Colony, Veeranam, Salem 636 122 had submitted an application to the Regional Transport Officer, Salem (East) for grant of new auto rickshaw permit and the same was rejected on the ground that there is a ban for issuing new auto rickshaw permit and then the petitioner approached the State Transport Appellate Tribunal for obtaining a new auto rickshaw permit and the same was obtained as there appears remedy to the petitioner."
6.Mr.Mani Gopi, learned Government Advocate appearing on behalf of the respondents submitted that a writ petition has been filed before this 11/22 http://www.judis.nic.in W.P.No.12531 of 2020 Court by the Salem Bus Owners' Association in W.P.No.30613 of 2018 wherein a complaint has been made to the effect that the auto rickshaw drivers are violating the terms and conditions of permit and are carrying excess passengers and a lot of traffic congestion is caused near the bus stand. The learned Government Advocate submitted that there are sufficient number of auto rickshaws that are running in Salem District and the same is enough to take care of the existing population in the District and therefore, the fourth respondent has rightly taken a decision not to issue any fresh permit for auto rickshaws. The learned counsel further submitted that the petitioner can await final orders in W.P.No.30613 of 2018 and any directions given by this Court in the said writ petition will be taken into consideration by the fourth respondent and decision will be taken.
7.This Court has carefully considered the submissions made on either side and the materials available on record.
8.The issue involved in the present writ petition has been lucidly dealt with by the State Transport Appellate Tribunal, Chennai in M.V.Appeal 12/22 http://www.judis.nic.in W.P.No.12531 of 2020 No.20 of 2018. It will be relevant to extract the reasonings given by the Tribunal while allowing the appeal filed by a similarly placed person.
"9.Section 74(3)(a) of the Motor Vehicles Act, 1988, reads as follows:
"The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of contract carriage generally or of any specified type as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than lakhs."
But, as read above, the Tamilnadu Government has not fixed any limit considering the population and other grounds in the number of contract carriages and also, has not issued any notification as per Section 74(3)(a) of the Motor Vehicles Act, 1988.
Rule 165 of the Tamil Nadu Motor Vehicles Rules, 1989 reads as follows:
"Limit upon number of permits: When a transport authority has in exercise of its powers under the Act, imposed a limit upon the number of permits of any class which may be granted for a specified route or a specified area and has already granted such number of permits of that class, the Transport authority or the Secretary of the Transport Authority, if authorized in this behalf by the Transport Authority, may decline to receive further application for such permits in respect of any such route or areas."
While so, when the Transport Authority in exercise of its power provided under Section 74(3)(a) of the Motor Vehicles Act, 1988, has not limited the number of permits of contract 13/22 http://www.judis.nic.in W.P.No.12531 of 2020 carriage for the specified route or the specified area and considering the population then, the act of the respondent, rejecting the appellant's application for new grant on the said ground is against law. On the contrary, it is seen that the Government has issued a notification in G.O.Ms.No.463, Home (Transport III) Department, dated 13.5.2010, lifting the ban on grant of new auto rickshaw permit throughout the State. Hence, the reasons mentioned by the respondent authority for rejection is unsustainable.
9.In the case of C.Sukumar Vs. The Transport Commissioner, State Transport Authority, Chennai 5 and another, in W.P.Nos.17636 to 17644 of 2015 dated 19.06.2015, our Hon'ble High court has held "5. This Court is unable to appreciate the above contention for the simple reason that when G.O.Ms.No.463 Home (Transport III) Department dated 13.05.2010 was issued five years ago lifting the ban with immediate effect, ......The second respondent (s) ought not to have refused to receive the applications for grant of auto rickshaw permit."
"6. This Court intends to make it clear to the Authorities concerned that while they are bound to act only based on Rules and Regulations governing them, at the same time, they should also be alive to the social responsibility in applying the set or rules in such a manner that none of their acts should disturb the essential concessions already made available to the public, in particular, to those who are socially and economically backward."
High Court has further held that, "7. ... in the light of the above G.O.Ms.No.463 Home (Transport III) Department dated 13.05.2010, the second respondent in each of the writ petition is hereby directed to 14/22 http://www.judis.nic.in W.P.No.12531 of 2020 receive the applications of the petitioners along with requisite fee forthwith and grant auto rickshaw permits within a period to two weeks from the date of receipt of a copy of this order."
Therefore, the above case law squarely applies to the instant case and in view of the observation made in the above case law, the reasonings of the respondent cannot be considered under any of the aspects mentioned in the impugned order.
10. It is also relevant to cite the ratio laid down by the Hon'ble Apex Court in Mithilesh Gang Vs. Union of India and others reported in AIR 1992 SC 443. In the said Judgment, the Hon'ble Supreme Court has held as follows, 'Motor Vehicles Act (59 of 1988) ..... The Statement of Objects and Reasons of the Act (Motor Vehicles Act, 1988) shows that the purpose of bringing in the Act was to liberalise the grant of permits.
There is no threat of any kind whatsoever under the new Act from any authority to the enjoyment of the right of the existing operators under Article 19(1)(g) to carry on the occupation of transport operators. More operators mean healthy competition and efficient transport system. ... The policy to grant permits liberally under the Act is directed towards the said goal."
Thus, the reasons stated by the respondent authority for the returning of the appellant's application for new grant is apparently against the ratio laid down in the above mentioned case laws. Moreover, before issuing new grant, on mere surmise and conjecture, the respondent cannot reject the appellant's application, which is against the statutory right of the appellant. Further, in the above mentioned Mithilesh Garg case, the Hon'ble Apex Court has observed that Section 80(2), which is the harbinger of Liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. Therefore, in view of the liberalized policy of grant of permits under the Motor Vehicles Act, 1988, the grant 15/22 http://www.judis.nic.in W.P.No.12531 of 2020 of permit is the rule and the refusal of permit an exception. Hence, from the overall analysis of the facts and circumstances of this instant case and also, taking into consideration the dictum laid down by the Hon'ble Apex Court that a lenient and liberal view has to be taken in view of liberalized policy enshrined in the Motor vehicles Act, 1988 and also giving due weight by giving the benefit of the benevolent provisions of the Act and by giving paramount consideration of public interest and above all, the Government has ordered lifting the ban on grant of new autorickshaw permits throughout the State, this Tribunal is of the view that the respondent has rejected the appellant's application for new grant on unacceptable and unsustainable grounds and hence, needs interference. Therefore, the impugned order passed by the respondent is hereby set aside and the appellant is entitled to get the contract carriage autorickshaw permit, subject to the production of valid necessary documents. Hence, this appeal deserves to be allowed and thus, the points are answered accordingly.
In the result, the appeal is allowed and the order of the Regional Transport Authority, Salem (East), Salem made in R.A.T.Mu.7171/E4/2018, dated 14.03.2018 is hereby set aside. The appellant is entitled for a contract carriage autorickshaw permit and the respondent is directed to grant a contract carriage autorickshaw permit to the appellant within a period of four weeks from the date of receipt of the copy of this judgment along with the appellant's application along with its enclosures and connected records."
9.The first respondent has thought it fit not to fix any limits for the grant of auto rickshaw permits throughout the State of Tamil Nadu. As rightly held by the Tribunal, the fourth respondent cannot issue a circular 16/22 http://www.judis.nic.in W.P.No.12531 of 2020 contrary to the Government Order. That apart, no notification has been issued under Section 74(3)(a) of the Motor Vehicles Act, 1988 limiting the number of permits of contract carriage for the specified route or the specified area. In view of the same, the fourth respondent does not have the jurisdiction to issue the impugned circular dated 27.11.2019. It is clearly ultra vires the Government Order passed in G.O.Ms.No.463 dated 13.05.2010. The reasoning given by the Appellate Tribunal is perfectly right and the same will also apply to the case of the petitioner.
10.Insofar as the pending writ petition that was brought to the notice of this Court in W.P.No.30613 of 2018 is concerned, that writ petition is a case where a complaint has been made by the Bus Owners' Association that auto rickshaws are violating the terms and conditions of permit and are carrying excess passengers than permitted and are causing a lot of disturbance in the bus stand. This is an independent issue over which an action has to be taken by the fourth respondent and it will be well within his powers. The same cannot be extended and applied even for cases where a new permit is sought for. Such applications will have to be independently 17/22 http://www.judis.nic.in W.P.No.12531 of 2020 considered in line with the Government Order. Taking action against the auto rickshaws who are violating the permit conditions has no nexus for considering a fresh application for issue of a permit to an auto rickshaw.
Two issues which have absolutely no connection whatsoever is unnecessarily clubbed together and the fourth respondent has proceeded to issue the impugned circular.
11.In the considered view of this Court, the impugned circular issued by the fourth respondent dated 27.11.2019 is beyond his jurisdiction and it is ultra vires G.O.Ms.No.463, dated 13.05.2010. In view of the same, this Court has no hesitation to interfere with the said circular issued by the fourth respondent and accordingly, the same is quashed. The fourth respondent is directed to consider the application submitted by the petitioner for grant of auto rickshaw permit and necessary orders shall be passed within a period of four weeks from the date of receipt of copy of this order.
The petitioner is directed to make a fresh application before the fourth respondent along with all relevant documents and a copy of this order.
12.This Writ Petition is allowed with the above directions. No costs.
18/22http://www.judis.nic.in W.P.No.12531 of 2020 Consequently, connected miscellaneous petitions are closed.
06.10.2020
Speaking order : Yes/No
Index : Yes/No
Sgl
To
1.The Secretary
(Home) Transport III Department,
State Government of Tamilnadu,
Fort St. George, Chennai – 600 009.
2.The State Transport Authority -cum-
The Transport Commissioner,
Chepauk, Chennai – 600 005.
3.The Regional Transport Authority, Salem.
4.The Regional Transport Officer, Salem (West), Salem.
5.The Regional Transport Officer, Salem (East), Salem.
6.The Regional Transport Officer, Salem (South) Salem.
7.The Regional Transport Officer, Sankagiri, Salem District.
8.The Regional Transport Officer, Mettur, Salem District.
19/22http://www.judis.nic.in W.P.No.12531 of 2020
9.The Regional Transport Officer, Attur, Salem District.
20/22http://www.judis.nic.in W.P.No.12531 of 2020 N.ANAND VENKATESH, J., Sgl W.P.No.12531 of 2020 06.10.2020 21/22 http://www.judis.nic.in