Madras High Court
Tmt. Suganthi, Prop. Veerappa ... vs M. Palanivelu And The Secretary, State ... on 26 September, 2006
Equivalent citations: (2006)4MLJ1374, AIR 2007 (NOC) 588 (MAD)
Author: D. Murugesan
Bench: D. Murugesan, V. Ramasubramanian
JUDGMENT D. Murugesan, J.
Page 2644
1. The writ appeal raises the following two points:
(1) Whether the variation granted, but not implemented, in respect of a stage carriage under Section 57(8) of the Motor Vehicles Act, 1939 (Act 4/1939), as amended by the Motor Vehicles (Amendment) Act, 1969 (Act 56/1969), is saved by the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 (Tamil Nadu Act 41/1992) after the Motor Vehicles Act, 1988 and the Motor Vehicles (Amendment) Act, 2000 (Act 27/2000) had come into force?
(2) Whether in terms of Rule 208(d) read with Rule 163(b) of the Tamil Nadu Motor Vehicles Rules, 1940, the variation granted automatically deemed to be revoked, in case the permit holder fails to produce the certificate of registration of the vehicle before the State Transport Authority within a period of four months from the date of variation?
2. The facts that give rise to the above points may briefly be stated as follows:
The appellant was a stage carriage permit holder for the bus MSQ 7297 to ply on the route Maduranthakam to Keelputhupattu (via) Acharapakkam, Thozhuppadu, Ongur, Tindivanam, Marukkeri, Brammadesam, Alathur Cross Road and Marakkanam. The said permit was granted under the Motor Vehicles Act, 1939 (hereinafter referred to as the "old Act"). The appellant applied to the Secretary, State Transport Authority on 9.6.84 for extension of the route from Keelputhupattu to Gorimedu upto Tamil Nadu border (via) Kottakuppam and Pondicherry bus stand with revision of timings. Pursuant to the above, the State Transport Authority notified the application under Section 57(3) of the old Act and after considering the representations received, by his proceedings dated 29.10.85, the variation was granted. As the extended route overlapped the scheme route, the timing conference was not held in view of the judgment of the Supreme Court in Pandiyan Roadways Corporation v. M.A. Egappan . Subsequently, the Government of Tamil Nadu enacted the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 (Tamil Nadu Act 41/1992) to validate all orders for granting permits or renewal or transfer of such permits or variation specified in a stage carriage permit and for the said purpose, Section 10 was introduced. Under Section 8 of the said Act, the Tamil Nadu Motor Vehicles (Special Provisions) Rules, 1995 were framed and the same was notified in G.O.Ms. No. 718 Home (Transport III) Department dated 18.5.1995. By the framing of the above Rules, the said Act was brought into force. On the ground that the variation granted under the old Act was saved, the appellant filed W.P. No. 12929 of 1995 Page 2645 seeking for a direction for implementation of the variation by holding the timing conference and this Court directed the timing conference to be convened. Accordingly, the Secretary, State Transport Authority notified on 28.4.97 fixing the timing conference on 13.6.97.
3. The first respondent, who is also a stage carriage operator, on the strength of the inter-state route permit plying on the route Palankulathur to Pondicherry (via) Tindivanam and Marakkanam, approached this Court in W.P. No. 8919 of 1997 seeking to forbear the Secretary, State Transport Authority from proceeding further with the timing conference notification dated 28.4.97. The said writ petition was admitted and in W.M.P. No. 14231 of 1997 by order dated 20.6.97, this Court ordered that the timing conference to go on, but the same should not be implemented until further orders. Subsequently, the writ petition itself came to be allowed by order dated 29.12.97. The learned Judge accepted the contention of the first respondent and held that inasmuch as no permit was granted under the new Motor Vehicles Act, the provisions of the Tamil Nadu Act 41 of 1992 are not applicable and consequently, the notice of timing conference was unsustainable. The learned Judge also accepted the contention of the first respondent that in terms of Rule 208(d) read with Rule 163(b), the variation granted deemed to be automatically cancelled as the appellant did not produce the certificate of registration within the prescribed period before the State Transport Authority.
4. Challenging the above findings, the appellant filed the Review Application before the learned single Judge and the same was also dismissed. The veracity of the above orders is put in issue in this writ appeal.
5. Miss. P. Vedavalle, the learned Counsel for the appellant would contend that in view of the Tamil Nadu Act 41 of 1992 and the subsequent provisions of Section 217A introduced by the Motor Vehicles (Amendment) Act, 2000, all permits including the variation of permits granted under the old Act are saved. She would also contend that inasmuch as the State Transport Authority did not require the appellant to produce the certificate of registration at the time when the variation was granted, question of production of the said certificate and that too, within a period of four months does not arise. Hence, on both the grounds the orders of the learned single Judge are liable to be set aside.
6. On the other hand, Mrs. Radha Gopalan, the learned Counsel for the first respondent argued in support of the findings of the learned single Judge on both the grounds. We have also heard Mr. A. Arumugham, the learned Additional Government Pleader for the State.
7. Point No. 1 : It is not in dispute that the route for which the variation of permit was granted is a scheme route. An application for variation could be made and considered by the Regional Transport Authority in terms of Sub-section (8) of Section 57 of the old Act. Though the variation was granted on 29.10.85, the same was not implemented in view of the judgment of the Supreme Court in Pandiyan Roadways Corporation case (supra), wherein the Supreme Court had held that no permit including variation shall be Page 2646 granted in a scheme route. In view of the said judgment, the timing conference was not held and the variation of permit was not given effect to. In the meantime, the old Act was repealed by the enactment of the Motor Vehicles Act, 1988 in terms of Section 217. Though under Section 217(2)(f) "the permits issued under Sub-section (1-A) of Section 68-F of the old Act or under the corresponding provisions that were in force were saved", the provision is silent as to the variation of permit. Therefore, the Government, in order to save the permits or variation of permits granted under the old Act, enacted the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992, which got the assent of the President on 31.7.92. Section 10 of the said Act relating to variation, reads as under:
10. Validation.-- Notwithstanding anything contained in Chapter V or VI including Section 98 of the Motor Vehicles Act, all proceedings taken for the grant of and all orders passed granting permits or renewal or transfer of such permits or any variation, modification, extension or curtailment of the route or routes specified in a stage carriage permit the publication of this Act in the Tamil Nadu Government Gazette, shall, for all purposes be deemed to be and to have always been taken or passed in accordance with the provisions of this Act as if this Act had been in force at all material times.
Subsequently, by the Motor Vehicles (Amendment) Act, 2000, Section 217A was inserted, after Section 217 of the new Act, and the said Section reads as under:
217A.- Notwithstanding the repeal by Sub-section (1) of Section 217 of the enactments referred to in that sub-section, any certificate of fitness or registration or licence or permit issued or granted under the said enactments may be renewed under this Act.
8. The object for the enactment of the Tamil Nadu Act 41 of 1992 is only to protect and save all proceedings taken for the grant and all orders passed granting permits or renewal or transfer of such permits or any variation, modification, extension or curtailment of the route or routes specified in a stage carriage permit, and, for all purposes shall be deemed to be and to have always been taken or passed in accordance with the provisions of the said Act as if the said Act had been in force at all material times. The enactment became necessary in view of the judgment of the Supreme Court in Pandiyan Roadways Corporation case (supra). In fact, by insertion of Section 217A, all permits including variations under the old Act are saved. Though the said section is not happily worded in express terms as to the validation of the permits granted under the old Act, the undisputed fact is that any certificate of fitness or registration or licence or permit issued or granted under the old Act could be renewed under the new Act. The provisions of Section 217A should be read keeping in mind the object of insertion of the said section. When the legislature intended for inclusion of a provision for renewal of permits granted under the old Act, it must necessarily mean and should be understood to include the validation of all permits, variation etc., granted under the old Act.
Page 2647
9. In T.P.K. Thilagavathy v. The Regional Transport Authority, Periyar District, Erode and Ors. , while considering the purport of the Act, the Supreme Court held that "the purport of the Act was to protect those operators who had been issued permits between 1976 and 30.6.90". The Tamil Nadu Act 41 of 1992 is a piece of "validating enactment" and going by the very object of the Act, the permits granted under the old Act including the variation are saved.
10. The same question came up for consideration before a Division Bench of this Court in Cheran Transport Corporation Ltd., Coimbatore and Anr. v. Sri Marappa Bus Transports, Erode and Ors. reported in AIR 1998 Madras 24, wherein the Division Bench, after referring to the judgment of the Supreme Court in Thilagavathy's case, held that "the variation granted even on 29.6.89 after the new Act has come into force was saved by the Tamil Nadu Act 41 of 1992". We may also refer to an unreported decision of P. Sathasivam, J. in W.P. No. 9302 of 1995 dated 5.12.2000 holding that "all permits granted under the old Act are saved in view of Section 217A of the new Act". Similarly, in another unreported decision, P.K. Misra, J. in W.P. No. 14014 of 1995 dated 26.9.2001 has also held "that after the insertion of Section 217A in the Amendment Act, 2000, the permit granted under the old Act is saved".
11. In view of the above discussion, we answer the point No. 1 by holding that by virtue of the Tamil Nadu Act 41 of 1992 as well as the amendment Act 27 of 2000, the variation of permit granted to the appellant on 29.10.85 is saved.
12. Point No. 2 : To answer this point, we must first consider as to whether it is mandatory on the part of the operator to produce the certificate of fitness at the time of grant of variation or such document could be produced only after the permit holder is directed to do so by the State Transport Authority. Rule 163(b), framed under the old Act, reads as under:
163.(b) When the applicant is unable to produce the certificate of registration on the date of his application for the permit, for the reason that he is not on that date in possession of a vehicle duly registered, or for some other reason, the Transport Authority of the Tribunal, as the case may be shall be grant him four month's time to be, reckoned from the date of receipt of the orders passed by them on the application, to produce the certificate of registration of the vehicle before the Transport Authority which has to issue the permit in order that particulars of registration mark may be entered in the permit. In cases where the State Transport Appellate Tribunal and is subsequently vacated, the time for production of the registration certificate should be calculated from the date of receipt of the order of State Transport Appellate Tribunal confirming the Transport Authority's order. If, however, the applicant acquired the vehicles and is able to produce the certificate of registration thereof within the four month's time allowed under this rule, the Transport Authority concerned shall issue the permit in respect of that vehicle.
The acquisition of a vehicle in pursuance of an order sanctioning the permit shall be at the sole risk of the applicant as the order sanctioning the permit may be reversed on appeal or revision under the Motor Vehicles Act and Page 2648 Rules and such acquisition shall not be deemed to be a point in favour of the applicant while disposing of the appeal or revision. If any applicant fails to produce the certificate of registration, together with current fitness certificate, within the four month's time, the Transport Authority, or the Tribunal, as the case may be shall revoke the sanction.
Provided that in the case of permits for tourist vehicles, the time for production of certificate of registration of the vehicle shall be six months reckoned from the date of receipt of orders passed on the application to produce the certificate of registration of the vehicle before the Transport Authority.
This rule, of course, relates to the permit. Rule 208 relates to permit variation and the said rule reads as under:
208.(a) Upon application made in writing by the holder of any permit, the Transport Authority may, at any time, in its discretion, vary the permit or any of the conditions thereof subject to the provisions of Sub-rule (b).
(b) If the application is for the variation of the permit by the inclusion of an additional vehicle or vehicles or if the grant of variation would authorise transport facilities materially different from those authorised by the original permit, the Transport Authority shall deal with the application as if it were an application for a permit. Provided that nothing contained in this rule shall prevent the Transport Authority or its Secretary, if authorised in this behalf, from summarily rejecting an application for the variation of a stage carriage permit so as to provide transport facilities on a road which has been or is certified to be unfit for motor vehicular traffic by an officer not below the rank of Divisional Engineer of the Highways Department.
(c) Every application for variation of conditions of permit under Sub-section (8) of Section 57 of the Act in respect of a transport vehicle shall be in form PVA.
(d) The provisions of Rule 163(b) shall mutatis mutandis apply to applications for variation of permit conditions like extension, curtailment or deviation of routes, replacement of vehicles, etc. and to applications for variation of counter-signature or extension.
13. So far as Sub-rule (d) of Rule 208 is concerned, the provision of Rule 163(b) shall mutatis mutandis apply to the application for variation of permit conditions like extension, curtailment or deviation of routes, replacement of vehicles etc., and to applications for variation of counter-signature or extension. Coming to Rule 163(a), no permit shall be issued until registration mark of the vehicle to which it relates has been entered therein. That rule requires entry of registration mark in the permit. For compliance of Rule 163(a), an applicant shall produce the certificate of registration on the date of his application for permit. As this rule is applicable to the application for variation as well, the applicant should also produce the certificate of registration at the time of application. In the event the same is not produced, thereafter, the State Transport Authority is obligated to grant him four month's time to be reckoned from the date of receipt of the orders passed by him on the application to produce the certificate of registration of the vehicle. In the event the certificate is not produced as directed, the State Transport Authority Page 2649 shall revoke the permit or the variation of permit as in this case. A plain reading of the said rule shows that it is a pre-condition on the part of the applicant to produce the certificate of registration along with the copy of the permit at the time of grant of permit or the variation as in this case. There is no pre-condition for the Transport Authority to require the operator to produce the records and only thereafter, the operator could produce the same. In fact, the rule does not speak so. In this context, Rule 216 of the Tamil Nadu Motor Vehicles Rules specifically contemplates the Transport Authority to call upon the operator to produce such records. Of course, he would have a further period of four month's time, as the said period could be given to such permit holder by the State Transport Authority to enable him to produce the certificate. In any case, the certificate must be produced within a period of four month's by the permit holder. The object of the said rule appears to be in the public interest. The permit to apply on a particular route and equally the variation of such permit to apply on an extended route is granted keeping in mind the interest of the travelling public and such permit was considered to be not merely an individual right or benefit or privilege, but is given in the public interest to an individual to carry out the directions. In the absence of compliance of Rule 163(b) framed under the old Act, the State Transport Authority is empowered to cancel the permit or the variation of permit as the case may be. The power conferred on the State Transport Authority to cancel the variation of permit is only ministerial attaching no further obligation to provide opportunity to the operator to explain the non-production of records. The moment the period of four month's time comes to an end, the permit or the variation of permit shall stand automatically cancelled by the operation of Rule 163(b). Even if there is no specific order cancelling the permit or the variation of permit passed by the State Transport Authority, in terms of the rule, such permit and variation could have no force after the expiry of four months and shall automatically stand cancelled. In fact, the very same view has been taken by this Court in A.M.V. Jayaraman v. The Secretary to the Regional Transport Authority, Periyar District at Erode reported in 1984 Writ L.R. 31. Raju, J. (as he then was) has also taken a similar view in an unreported decision in W.P. Nos. 11841 and 11856 of 1989 dated 20.7.94. Hence the contention of the appellant that he did not produce the records as the State Transport Authority did not call for the records has no merits and consequently is liable to be rejected.
14. In view of the above discussion, we answer the point No. 2 by holding that by virtue of the provisions of Rule 208(d) read with Rule 163(b), the variation granted in favour of the appellant is deemed to have been revoked and hence the same cannot be implemented by convening the timing conference.
15. For all the above reasons, we find no merits in the writ appeal and accordingly, the writ appeal is dismissed. No costs. Consequently, C.M.P. Nos. 14262 & 14263 of 2000 are also dismissed.