Kerala High Court
Quilon District Private Bus Operators ... vs The Regional Transport Authority on 20 May, 2015
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938
WP(C).No. 25603 of 2016 (A)
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PETITIONER:
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1. QUILON DISTRICT PRIVATE BUS OPERATORS ASSOCIATION,
(REG:NO.161/84), ANANDAVALLESHWARAM,
KOLLAM - 691 009, REPRESENTED BY ITS
GENERAL SECRETARY, LAWRENCE BABU.
2. BALACHANDRA PILLAI,
MOHANALAYAM, ASTHAMUDY P.O.,
KOLLAM.
BY ADV. SRI.P.DEEPAK
RESPONDENT(S):
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1. THE REGIONAL TRANSPORT AUTHORITY,
KOLLAM - 691 001.
2. THE SECRETARY,
REGIONAL TRANSPORT AUTHORITY,
KOLLAM - 691 001.
3. THE REGIONAL TRANSPORT AUTHORITY,
ALAPPUZHA - 688 002.
4. THE KERALA STATE ROAD TRANSPORT CORPORATION,
REPRESENTED BY ITS MANAGING DIRECTOR,
TRANSPORT BHAVAN, THIRUVANANTHAPURAM - 695 001.
5. THE DISTRICT TRANSPORT OFFICER,
KERALA STATE ROAD TRANSPORT CORPORATION,
KOLLAM - 691 002.
R1-3 BY SENIOR GOVERNMENT PLEADER SRI PAUL VARGHESE M.
R4 - 5 BY ADV. SRI.P.C.CHACKO, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18-08-2016, THE COURT ON 26-08-2016 DELIVERED THE
FOLLOWING:
K.V.
WP(C).No. 25603 of 2016 (A)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. A TRUE COPY OF THE COMPLAINT DATED 20.05.2015
ADDRESSED TO THE 2ND RESPONDENT.
EXHIBIT P2. A TRUE COPY OF THE AGENDA (RELEVANT EXTRACT) FOR THE
MEETING OF THE 1ST RESPONDENT HELD ON 03.10.2015.
EXHIBIT P3. A TRUE COPY OF THE DECISION OF THE 1ST RESPONDENT
DATED 03.10.2015 IN ITEM NO.117.
EXHIBIT P4. A TRUE COPY OF THE QUERY DATED 08.01.2016 FILED UNDER
THE RTI, ACT 2005.
EXHIBIT P4(A) TRUE COPY OF THE COMMUNICATION DATED 03.02.2016 OF THE
PUBLIC INFORMATION OFFICER ATTACHED TO THE OFFICE OF
THE 5TH RESPONDENT.
EXHIBIT P4(B). TRUE COPY OF THE COMMUNICATION DATED 29.03.2016 OF THE
PUBLIC INFORMATION OFFICER ATTACHED TO THE OFFICE OF
THE 2ND RESPONDENT.
EXHIBIT P5. TRUE COPY OF THE JUDGMENT DATED 31.07.2008 IN WPC
NO:21236 OF 2008.
RESPONDENT(S)' EXHIBITS
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R4(A) COPY OF THE PERMIT ISSUED TO THE 4TH RESPONDENT DATED
14.09.2015 ON THE ROUTE CHENGANOOR-KOLLAM BY THE
SECRETARY RTA THIRUVANATHAPURAM(NATIONALISED SECTOR)
R4(B) COPY OF THE PERMIT ISSUED TO THE 4TH RESPONDENT DATED
15.10.2015 ON THE ROUTE CHENGANNUR-KOLLAM BY THE
SECRETARY,RTA,THIRUVANATHAPURAM(NATIONALISED SECTOR).
R4(C) COPY OF THE PERMIT ISSUED TO THE 4TH RESPONDENT DATED
16.10.2015 ON THE ROUTE CHENGANNUR-KOLLAM BY THE
SECRETARY RTA THIRUVANATHAPURAM(NATIONALISED SECTOR).
R4(D) COPY OF THE PERMIT ISSUED TO THE 4TH RESPONDENT DATED
29/10/2015 ON THE ROUTE CHENGANNUR-KOLLAM BY THE
SECRETARY,RTA,THIRUVANATHAPURAM(NATIONALISED SECTOR).
R5(E) COPY OF THE PERMIT ISSUED TO THE 4TH RESPONDENT DATED
12.04.2016 ON THE ROUTE CHENGANNUR-KOLLAM BY THE
SECRETARY RTA THIRUVANATHAPURAM NATIONALISED SECTOR).
/TRUE COPY/
P.S.TO JUDGE
K.V.
C.R.
SHAJI P. CHALY, J.
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W.P.(C) No.25603 of 2016
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Dated this the 26th day of August, 2016
JUDGMENT
Petitioners have filed this writ petition seeking direction to respondents 1 to 3 to interdict the operation of stage carriages by the 4th respondent on the route Kollam- Chengannur without obtaining permits from the 1st respondent and the same having countersigned by the 3rd respondent, to declare that 1st respondent alone has the jurisdiction to grant permit on the notified route Kollam-Chengannur, also to declare that such grant of permit is to be countersigned by the 3rd respondent, and further to declare that neither the State Transport Authority nor the RTO (NS) has any jurisdiction to grant/issue any permit to the K.S.R.T.C to conduct service on the non-notified route Kollam-Chengannur. Material facts for the disposal of the writ petition are as follows:
2. First petitioner is a registered Association of stage carriage operators. Second petitioner is a member of the 1st petitioner Association and is holder of a regular permit in respect of vehicle bearing registration No.KL-02/AA-7475. The W.P.(C) No.25603 of 2016 2 route Kollam-Chengannur via Anchalamoodu, Kundara, Chittumala & Bharanikavu is an inter-regional route traversing the districts of Kollam and Alappuzha. The total route length is 71 kms., out of which, 41 Kms. fall in Kollam District and 30 Kms. in Alappuzha District. The above route is not a notified route covered by any approved scheme of nationalization and therefore the provisions of Chapter VI of the Motor Vehicles Act, 1988 [hereinafter referred to as 'the Act'] do not apply.
Therefore, the State Transport Undertaking viz., the 4th respondent enjoys no special status or privilege vis-a-vis private operators in the matter of applying for and obtaining permits to operate stage carriages on the above route. In other words, K.S.R.T.C and the private operators are governed by the provisions of Chapter V of the Act. Since major portion of the route lies in Kollam District, application for permit is to be submitted before the 1st respondent and any permit granted by the 1st respondent would have to be countersigned by the 3rd respondent under Sec.88 of the Act for validating the operation of the stage carriage in Alappuzha District.
3. Matters being so, in May, 2015, K.S.R.T.C introduced 10 new stage carriages operating from Kollam to W.P.(C) No.25603 of 2016 3 Chengannur and 5 stage carriages operating in the opposite direction. These services were introduced without obtaining permits from the 1st respondent. Thereupon, Ext.P1 complaint was submitted by the 1st petitioner before the 1st respondent and other authorities seeking immediate cessation of the illegal operation of service by the K.S.R.T.C. Accordingly, the matter was placed for consideration in the meeting of the 1st respondent held on 03.10.2015, evident from Ext.P2, and 1st respondent passed an order directing K.S.R.T.C to submit applications for fresh regular permit with a proposed set of time schedule, evident from Ext.P3. It is contended that, 4th respondent is yet to comply with the above direction and even now continuing with illegal and unauthorized operation. In a reply given to the petitioners under the provisions of the Right to Information Act, 2005, 4th respondent admitted that five stage carriages enumerated in the said reply, are operating service on the route in question and none of the stage carriages are issued with permit from the 1st respondent, evident from Exts.P4 and P4(a). According to petitioners, information received as per Ext.P4(a), corroborated by the 2nd respondent in response to yet another query put by the 1st W.P.(C) No.25603 of 2016 4 petitioner as per Ext.P4(b). Therefore, according to the petitioners, K.S.R.T.C has taken law into their hands and is operating vehicles without taking permit in accordance with law as provided under the Act. It is in this background, this writ petition is filed.
4. Respondents 4 and 5 have filed a joint statement refuting the allegations and statements contained in the writ petition. That apart, it is contended that, 4th respondent has obtained permit from the State Transport Authority (for short, 'STA') on the Chengannur - Kollam route. Since it is an inter- district route, STA is having power and jurisdiction to issue permit. The permits issued to the 4th respondent by the Secretary, Regional Transport Authority (RTA), Thiruvananthapuram are produced as Exts.R4(a) to R4(e). Therefore, Exts.R4(a) to R4(e) clearly show that the 4th respondent is having permit on the route Kollam - Chengannur.
5. It is also contended that, STA is having jurisdiction to issue permit as provided under Sections 88(2), 68(3)(b) and Sec.103 of the Motor Vehicles Act in the inter-regional route lying within the State of Kerala. As per Sec.68(5) of the Act, W.P.(C) No.25603 of 2016 5 STA can delegate such power and function to such authority or person. Similarly, as per Rule 138 of the Kerala Motor Vehicles Rules [hereinafter called 'the State Rules'], STA can delegate its powers and functions to its Secretary and as per Rule 137 (2) of the State Rules, Regional Transport Officer (Nationalized Sector) can exercise the power and perform such function of the Secretary of the STA. Therefore, there is no merit in the contention of the petitioners and the writ petition is liable to be dismissed.
6. Heard learned counsel for the petitioner, learned Senior Government Pleader and the learned Standing Counsel for respondents 4 and 5. Perused the documents on record and the pleadings.
7. Even though the contention raised by the petitioners is that 4th respondent Corporation is operating services on the route in question without securing permit from the 1st respondent countersigned by the 3rd respondent, on production of Exts.R4(a) to R4(e), it is evident that, 4th respondent has secured permits from the Secretary, Regional Transport Authority (Nationalized Sector) to operate services on the route in question. Therefore, the question to be considered, as W.P.(C) No.25603 of 2016 6 projected by the petitioners is, whether the STA (NS) or the delegatee, Secretary, R.T.A., Thiruvananthapuram is vested with powers to issue permits to operate on the route in question.
8. Learned counsel for the petitioners contended that, admittedly, the route in question is a non-notified route and therefore the 4th respondent cannot operate its services without securing permits from the respective statutory authority. According to the counsel, as per Sec.2(31), 'permit' means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act, authorizing the use of a motor vehicle as a transport vehicle. In that regard, learned counsel has invited my attention to Sec.66 of the Act, wherein, it is stipulated that no owner of a motor vehicle shall use, or permit the use of the vehicle, as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority. Learned counsel has invited my attention to Sec.68 of the Act, wherein, the Transport W.P.(C) No.25603 of 2016 7 Authorities are empowered to be notified, to constitute for the State, a State Transport Authority to exercise and discharge the powers and functions specified in sub-section (3) and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas as may be specified in the notification in respect of each Regional Transport Authority; the powers and functions conferred by or under this Chapter on such authorities. Therefore, it is the contention of the counsel that if only a power is conferred under sub-section (3) of Sec.68, the power of issuing permits can be exercised by the authority. Sub-section (3) of Sec.68 and Clauses (a) and (b) read thus:
"(3) The State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under Section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the following powers and functions, namely:--
(a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities if any, of the State;
(b) to perform the duties of a Regional Transport Authority where there is no such Authority and if it thinks fit or if so require by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions;".W.P.(C) No.25603 of 2016 8
8. Learned counsel pin-pointedly argued with reference to clause (b) of sub-section (3) of Sec.68, if and when a Regional Transport Authority is functional, the State Transport Authority is not vested with any powers to issue permit. Learned counsel has also invited my attention to sub-section (5) of Sec.68 where the State Transport Authority and any Regional Transport Authority, if authorized in this behalf by rules made under Sec.96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitations and conditions as may be prescribed by the said Rules. According to the learned counsel, since the 1st and 3rd respondents are functional, the power to issue permit and counter-signature are to be exercised by the said authority, and the action of the STA either performing the power by himself, or authorizing a delegatee to exercise such power under the provisions of the Act and Rules is not warranted. That apart, it is contended that, since clause (b) of sub-section (3) of Sec.68 comprehends a situation, wherein a Regional Transport Authority is not functional and only under that circumstance, the STA is vested with powers to delegate the powers conferred on the STA. Therefore, according to the W.P.(C) No.25603 of 2016 9 learned counsel, since 1st and 3rd respondents are functional and empowered to issue permits under Chapter V, the STA or its delegatee is not vested with powers to issue permits.
9. It is also contended that, as provided under Sec.69, every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles. Since major portion of the route lies with the 1st respondent and since it is an inter-regional service, the application for permit shall be submitted to the 1st respondent and the same is to be countersigned by the 3rd respondent where the minor portion of the service lies. Relying on Rules 137 and 138, it is contended by the learned counsel that the operation of the said Rules depends on the exercise of the power as provided under Secs.68 and 69 of the Act.
10. Per contra, learned Standing Counsel for the 4th and 5th respondents submitted that, STA is vested with powers under sub-section (3) of Sec.68. Learned counsel has invited my attention to sub-section (3) and contended that if and when it thinks fit, and if so required by the Regional Transport Authority, the entire duties empowered under the Act to a W.P.(C) No.25603 of 2016 10 Regional Transport Authority can be exercised by the State Transport Authority. According to the Standing Counsel, Therefore, the STA is vested with sufficient powers to perform the issuance of permit either by himself or by delegation as contemplated under sub-section (5) of Sec.68 and Rules 137 and 138 of the State Rules. That apart, learned counsel has invited my attention to Sections 80(2) and 88(1) and (2) of the Act and contended that there also, power is vested with the STA to issue permits. That apart, counsel contends that there is no interdiction created of any manner of whatsoever nature, from exercising the powers by the STA, being the head of State Transport Department, apart from the powers specifically conferred under the Act and the Rules.
11. Therefore, according to the counsel, the 4th respondent is operating its services in terms of Exts.R4(a) to R4(e) permits in the route in question, which is valid till 2020 and 2021 respectively. According to the counsel, petitioners have submitted applications under the Right to Information Act to the Regional Transport Authorities and since the permits are issued by the STA, the said authorities could not provide the exact information with respect to the operation of the vehicles W.P.(C) No.25603 of 2016 11 by the 4th respondent on the route in question.
12. Taking into account the respective submissions made across the Bar, and reckoning the factual and other legal circumstances, I am of the considered opinion that the State Transport Authority is vested with powers to issue permits under Sec.68(3)(b) and therefore the said authority is also vested with power to delegate its powers under sub-section (5) of Sec.68, in accordance with Rules 137 and 138 of the State Rules. Moreover, even though the power of the State Transport Authority is under challenge, neither the STA nor the State Government are made parties to this writ petition. That apart, as pointed out by the learned Standing Counsel for the 4th respondent, Secs.82 and 88(2) are powerful indicators to show that STA is vested with power under Sec.68(3)(b) to issue permit or delegate the power as contemplated under sub-section (5) of the said section. Moreover, as discussed earlier, STA is the Head of the Transport Department in the State and therefore the orders issued by the STA by exercising the said powers is binding on all the subordinate authorities as provided under Rule 405 of the State Rules. So also, what is performed by the STA or delegatee is an official act, entitled to W.P.(C) No.25603 of 2016 12 be legally presumed in accordance with law. Petitioners have not produced any material, powerful enough to think otherwise. However, Sec.104 of the Act has no bearing in the present fact scenario, since the route in question is not a notified one.
13. Learned counsel for the petitioners even though invited my attention to the judgment of the Apex Court in 'Sher Singh v. Union of India and others' [(1984) 1 SCC 107], to canvass the proposition that the State Transport Undertaking is also bound to operate their vehicles after securing permits in accordance with the provisions of the Act, however, from the findings rendered above, it is crystal clear that 4th respondent is operating their vehicles in accordance with the permits secured as provided under law. Therefore, I am of the considered opinion that, apprehension expressed by the petitioners with respect to the operation of the vehicles by 4th respondent without permits or securing permits from the STA who is not vested with powers to delegate or issue permits is mis-conceived. Therefore, I declare, the State Transport Authority is vested with ample powers under the Act and Rules to issue permits, to the fourth respondent W.P.(C) No.25603 of 2016 13 Corporation, either by himself or delegating the power.
Resultantly, writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
19.08.2016