Kerala High Court
All Kerala Tourist Taxi Association vs The Secretary To Government on 28 September, 2004
Equivalent citations: 2005(1)KLT971
Author: K.K. Denesan
Bench: K.A. Abdul Gafoor, K.K. Denesan
JUDGMENT K.K. Denesan, J.
1. This appeal arises from the judgment of the learned Single Judge dismissing W.P.(C) 32027/2003. All Kerala Tourist Taxi Association is the appellant/petitioner. Reliefs prayed for in the Writ Petition were to quash Ext.P4 and to declare that the power to grant tourist permits is exclusive function of the State Transport Authority and it cannot be delegated to the Regional Transport Officers. The learned Single Judge held that Section 68(5) of the Motor Vehicles Act, 1988 (Central Act 59 of 1988), hereinafter referred to as the 'Act', has authorised the State Transport Authority to delegate its powers to the Regional Transport Officers, provided, the State Government has framed rules in that behalf under Section 96 of the Act and thus sustained Ext.P-4. Aggrieved, this Writ Appeal was filed.
2. Ext.P4 is the copy of the proceedings of the State Transport Authority by which the said authority decided to delegate to the Regional Transport Officers in purported exercise of the powers under Rule 138 of the Kerala Motor Vehicles Rules, 1989, hereinafter referred to as the 'State Rules', the following power among other:
(1) Power under Section 88(9) of the Act to grant tourist permit".
The issue for consideration in this Writ Appeal is whether the power under Section 88(9) of the Act to grant tourist permits can be delegated to the Regional Transport Officers. Section 88(9) reads as follows:
Notwithstanding anything contained in Sub-section (1) but subject to any rules that may be made by the Central Government under Sub-subsection (14), any State Transport Authority may, for the purpose of promoting tourism, grant permits in respect of tourist vehicles valid for the whole of India, or in such contiguous States not being less than three in number including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application and the provisions of Section 73, 74, 80, 81, 82, 83, 84, 85, 86, clause (d) of Sub-section ( 1) of Section 87 and Section 89 shall, as far as may be, apply in relation to such permits".
It is clear from a plain reading of the aforesaid provision that the authority empowered to grant permits in respect of tourist vehicles valid for the whole of India or in such contiguous States not being less than three in number including the State in which the permit is issued, is the State Transport Authority. The above provision does not authorise delegation of the power of any other authority. The operation of Sub-section (9) of Section 88 of the Act is subject to any rules that may be made by the Central Government under Sub-section (14) of Section 88 which says that the Central Government may make rules for carrying out the provisions of Section 88. In exercise of the powers confered by Sub-section (14) of Section 88 as also by Sections 12, 27, 64, 110, 137, 164 & 208 read with Section 211 of the Motor Vehicles Act, 1988, the Central Government has made the Rules called Central Motor Vehicles Rules, 1989, hereinafter referred to, for short, 'the Central Rules'. For the purpose of this case, Rule 82 of the Central Rules is the relevant provision. The said Rule says that an application for the grant of permit in respect of a tourist vehicle shall be made in Form 45 to the State Transport Authority. It is not clear whether the Central Government has got the power under Sub-section (14) of Section 88 to delegate the power conferred on the State Transport Authority by Sub-section (9) of Section 88 of the Act. Whatever that be, we need not examine that question here, because, the Central Rules, as framed, do not delegate or permit any authority to delegate the power to grant permit for tourist vehicles. Therefore, as per Section 88(9) and Rule 82 of the Central Rules, jurisdiction to grant permits for tourist vehicles exclusively vests in the State Transport Authority. It is pertinent to note that Section 88 of the Act itself speaks about the rules to be framed by the Central Government to carry out the purpose of the said Section. This would indicate that there is implied exclusion of the power of the State Government to make rules in respect of matters coming within the purview of Sub-section (9) of Section 88 of the Act. Neither Section 88 nor the Central Rules authorise delegation of the power conferred on State Transport Authority to any other authority. Therefore, it is only reasonable to think that the Parliament as well as the Central Government wants the power to grant permit for tourist vehicles to be exercised by the State Tansport Authority and not by any other authority.
3. Ext.P4 proceedings were issued in purported exercise of the power conferred under Rule 138 of the State Rules framed in exercise of the powers conferred under Sections 26, 28, 38, 65, 96, 107, 111, 138, 169, 176 and 213 of the Act. Relevant portion from Rule 138 of the State Rules may be extracted as follows:
138. Delegation of powers of the State Transport Authority:--The State Transport Authority may, for the prompt and convenient despatch of its business, by general or special resolution delegate:
(1) To its Secretary:
All or any of the powers vested in it provided that no delegation shall be made in respect of the following:
(a) power under clause (a) of Sub-section (3) of Section 68 of the Act, co-ordinate and regulate the activities of the Regional Transport Authorities;
(b) power under Clause (c) of Sub-section (3) of Section 68 of the Act to settle disputes of differences of opinion between the Regional Transport Authorities;
(c) power under Sub-section (4) of Section 68 of the Act, to issue directions to the Regional Transport Authorities;
(d) power under Sections 71 and 72 of the Act to refuse stage carriage permits;
(e) power under Section 73 and 74 of the Act to refuse contract carriage permits;
(f) power under Section 86 of the Act to cancel a permit.
(2) To its Chairman:
(a) all the powers that may be delegated to the Secretary under Sub-rule (1):
Provided that in cases where the Chairman and the Secretary have both been delegated with the same powers of the State Transport Authority, the Secretary shall not exercise the powers which are exercised by the Chairman.
(3) To the Regional Transport Officers:
All the powers that may be delegated to the Secretary under Sub-rule (1)"
4. State Rules are not rules made as provided in Section 88(14) of the Act. The power to make rules under Section 96 of the State Act is a general power conferred on the State Government in respect of matters coming within the purview of Chapter V of the Act whereas the power to make rules for the purpose of carrying out the intendment of Section 88 is a special power conferred exclusively on the Central Government. If that is so, would it be lawful for the State Government to frame Rules in respect of matters which fall within the scope and ambit of Section 88 of the Act? And would it be lawful for the State Government or any other subordinate authority to decide that the power to be exercised exclusively by the State Transport Authority as per the mandate of Section 88(9) be delegated to any other authority? In our view, the answer to the above questions must be in the negative. Here, we may hasten to state that RULE 138 of the State Rules does not speak about Section 88(9) of the Act and neither Sub-rule (1) nor Sub-rule (3) authories delegation of the powers vested in the State Transport Authorities to any other authority. The general power conferred on the State Government under Section 96 of the Act cannot encroach into the area specially and exclusively set apart to be performed by the authorities specifically mentioned in Sub-section (9) of Section 88 of the Act. The newly added Sub-rule (3) in Rule 138 of the State Rules empowering the Regional Transport Officers vesting in them the delegated powers in terms of RULE 138 and Sub-rule (1) of the said rule has therefore to be read down so as to exclude delegation of the power conferred on the State Transport Authority under Sub-section (9) of Section 88 of the Act. Consequently, the same principle and restriction shall apply while construing Sub-section (5) of Section 68 of the Act as well. Section 88(9) and 68(5) of the Act have to be construed harmoniously so as to avoid inconsistency. For easy reference we quote below Section 68 (5) of the Act:
The State Transport Authority and the Regional Transport Authority, if authorised in this behalf by rules made under Section 96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitation and conditions as may be prescribed by the said rules."
5. In the light of the above discussion, we hold that Ext.P4 to the extent it delegates the power to grant permits to tourist vehicles contravenes Section 88(9) of the Act and is liable to be declared illegal.
6. While upholding the impugned order, the learned Single Judge has observed that it is always open to the State Transport Authority to issue general or specific directions to any Regional Transport Authority in regard to issue of permits under Section 88(9); whether suo motu or on application by any party and therefore, the delegation of power by the State Transport Authority vide Ext.P-4 cannot be said to be excessive delegation because the Regional Transport Authorities are always subject to the regulatory and supervisory jurisdiction by the State Transport Authority by virtue of powers under Rule 138(1) of the State Rules. With respect, we cannot agree with that view. As it is clear on a combined reading of Section 88(9) of the Act and the allied provisions that the said provisions do not authorise any such delegation and that the intention of the Legislature is that the power to issue permits to tourist vehicles shall be exercised exclusively by State Transport Authority, the controlling power of the State Transport Authority over the Regional Transport Officers, cannot alter the rule position. For the very same reason we cannot accept the view that delegation of the power can be sustained on grounds of convenience to the applicants for the permits. A reading of Section 88(9) makes it clear that the Parliament in its wisdom wanted the power to grant permits to tourist vehicles exercised by the State Transport Authority. Since we have found that Ext.P-4 is ultra vires to the extent the said proceedings are challenged by the appellants, convenience of parties or avoidance of difficulties to the parties will not make the action valid. It is therefore declared that Ext.P4 is illegal and ultra vires the Act. Ext.P4 is quashed, the impugned judgment is set aside, Writ Petition and Writ Appeal are allowed.