Karnataka High Court
Sree Gajanana Motor Transport Company ... vs The Secretary, Regional Transport ... on 15 July, 1998
Equivalent citations: 1998(5)KARLJ467
Author: S.R. Venkatesha Murthy
Bench: Ashok Bhan, S.R. Venkatesha Murthy
JUDGMENT S.R. Venkatesha Murthy, J.
1. Grant of a temporary permit by the Secretary, R.T.A., Shimoga in his proceedings RTA I SMG/PE. 408 of 1996-97 in favour of the third respondent herein was challenged in Writ Petition No. 24724 of 1996 before this Court.
2. The third respondent sought and obtained a temporary permit on the route Choorikatte to Jog and back for the period 2-8-1996 to 30-11-1996 on the ground of a temporary need.
3. Various grounds urged by the appellant herein against the grant of temporary grant under Section 87 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') failed in the writ petition and this writ appeal is presented.
4. Admittedly, the writ petition became infructuous by reason of the expiry of the period of the temporary permit impugned. The question of law as to whether the temporary permit could be granted, in the circumstances of the case to be narrated hereafter, requires to be answered so that the authorities may not issue temporary permit in contravention of the letter and spirit of Section 87 of the Act.
5. Admittedly, the third respondent who operates a stage carriage service under Permit No. 46 of 1991-92 sought a temporary permit during 'spare hours' for operation of the service from Choorikatte and Jog and back via Nalanda Pre-University College, and Kargal for the period 1-8-1996 to 30-11-1996. This request was apparently supported by the MLA of Honnali who wrote a letter to the Secretary, RTA, Shimoga to the effect that the route between Sagar and Jog, being a nationalised route, no permits are given to private operators, as a result of which, the tourists who visit Jog to enjoy the splendour of Jogfalls during rainy season are put to difficulty. The third respondent herein who has been operating the service for the last 8 months under temporary permits should be allowed to operate for a further period of 1-8-1996 to 30-11-1996 by grant of a temporary permit after the expiry of the previous period on 31st of July, 1996. On the basis of this letter, the first respondent made an order to the effect that since there is a temporary need, the temporary permit granted to the third respondent is required to be extended for a further period from 2-8-1996 to 30-11-1996.
6. The grant of the temporary permit as aforesaid is sought to be attacked on the ground that admittedly for a period of one year, consecutively temporary permits have been granted for a period of four months each to enable a continuous operation. It was contended that the grant of a temporary permit during "spare hours" is deprecated by the decisions rendered by this Court and that the application for regular permits on the route in question is still pending examination and in the circum-
stances grant of a temporary permit on a route which is admittedly a notified route is without jurisdiction.
7. None of the contentions of the appellant found favour within the order impugned. In this Court, the learned Counsel for the third respondent sought to support the order including the imposition of costs payable to the respondents herein.
8. The Act of 1988 admittedly has brought about a radical change in the approach for applications for grant of regular permits. The object of liberalisation of the policy of grant of permits under the Act has been explained by the Supreme Court in Mithilesh Garg and Others v Union of India and Others. The Head Note reads as follows:
"More often one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter-public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. It cannot be said that too many operators on a route are likely to affect adversely the interest of weaker section of the profession. The transport business is bound to be ironed out ultimately by the rationale of demand and supply. Cost of a vehicle being as it is, the business requires huge investment. The intending operators are likely to be conscious of the economics underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a State is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal".
9. Though Sections 72 and 80 of the Act made it clear that grant of a permit sought is the rule and rejection is the exception, it is clear that such a grant of permit is subject to the overriding provisions of Chapter VI of the Act. So, the authority granting any stage carriage permit, temporary or regular, would have to find the jurisdictional fact namely that the route applied for does not overlap any notified route under Chapter VI of the Act. Indeed, the procedure for grant of stage carriage permit under the Act was enunciated in Gajraj Singh v State Transport Appellate Tribunal and Others. Thus it is now obligatory that whenever a permit is sought to be granted either under Section 72 read with Section 80 of the Act or under Section 87 of the Act, the State Transport Undertaking would have to be notified to enable to raise its objections, if any.
10. The distinction between Section 72 read with Section 80 and Section 87 of the Act cannot be lost sight of. Though grant of regular permits is liberalised, temporary permits cannot be granted unless any one or more of the conditions stipulated in sub-section (1) of Section 87 are fulfilled by the applicant. At this stage, it is necessary to observe that a mere recitation of one of the grounds of sub-section (1) of Section 87 of the Act would not be available to secure a permit thereunder and a ease has to be made out for grant of the permit under one of the grounds specified under Section 87(1) of the Act - Andhra Pradesh State Road Transport Corporation v K. Venkataramireddy and Others. In the instant case, a reading of the order of the first respondent would show that there was a claim for a permit for the period 2-8-1996 to 30-11-1996 on the ground of the special need of the travelling public namely to visit Jogfalls to view the waterfall in all its splendour. What the first respondent has done is to extend a temporary permit that had been issued since 8 months earlier, by a further period as aforesaid. This shows that notwithstanding the verbage of the order, the authority never really applied its mind as to the existence of the need for the permit sought. For grant of a regular permit under Section 72 read with Section 80 of the Act, establishment of a need is not necessary; whereas in case of grant of a temporary permit, no permit can be issued under Section 87 of Act, unless the conditions stipulated under Section 87(1) of the Act are fulfilled. So the obligation of the authority to be satisfied of the existence of one or the other of the conditions for grant of a temporary permit under Section 87 of the Act continues to exist. The liberalisation of grant of permits under Section 72 and read with Section 80 of the Act cannot cast its shadow on Section 87 of the Act of 1988 to enable grant of temporary permits disregarding the specific requirements enumerated thereunder. No temporary permit can be granted during the pendency of an application for grant of a permit under Section 72 read with Section 80 of the Act, without determination of the jurisdictional fact. Only when an application for renewal of the permit is pending can such a request for a temporary permit be considered and Section 87 does not enumerate the circumstance of pendency of an application for grant of a permit as one of the grounds for grant of a temporary permit.
11. In A. Viswanathan v State Transport Appellate Tribunal, Pondicherry and Another, the Supreme Court has observed that issue of a temporary permit repeatedly is violative of the letter and spirit of Section 62 of the Motor Vehicles Act of 1939. In the instant case, it is clear that successive grants of temporary permits to the third respondent is clearly against the letter and spirit of Section 87 of the Act. The letter of the MLA referred to in the impugned permit appears to have influenced the grant of the temporary permit without even an examination of the route applied for was a notified one or not.
12. The order of the first respondent extending the permit for further period between 2-8-1996 and 30-11-1996 is clearly illegal. The authori-
ties concerned who are empowered to grant temporary permits shall have to take note of the position of law and should desist from issuing such temporary permits.
13. The question as to whether the temporary permits could have been granted during 'spare hours' is also covered by the decisions of this Court in Jwalannaiah Gogi and Kuberappa v Secretary, RTA and Another, confirmed in Writ Appeal No. 1087 of 1984, dated 12th June, 1984 wherein it has been held that grant of temporary permits during 'spare hours' is impermissible. Even on this score the grant of the temporary permit is unsustainable.
14. The imposition of costs in the circumstances against the appellant herein would have to be set aside as the appellant had a justifiable grievance to ventilate in the writ petition filed by him. In terms of this order, the writ appeal is allowed.