M. Parameswaran Nair vs The R.T.A. and Another

K.T. Thomas, J.—Petitioner has applied for the grant of a regular stage carriage permit on an inter-district (or inter-regional) route. As major portion of the route lies within the territorial limits of Regional Transport Authority, Trissur, the application was made before that Transport Authority, The Secretary of the Transport Authority, instead of placing the application for consideration before the Transport Authority, addressed a letter to the Secretary of the other Regional Transport Authority. Ext. P3 is a copy of the communication which the Secretary of the Regional Transport Authority, Trissur, addressed to the petitioner in which the petitioner was informed that his "application will be placed before the R.T.A. on receipt of the concurrence". Petitioner challenges the action of the Secretary of the Regional Transport Authority, Trissur, in this Original Petition. The thrust of the contention raised by the learned counsel for the petitioner is that it was open to the Regional Transport Authority of any one region to grant a permit and it is for the permit holder to apply for counter signature by the Regional Transport Authority of the other region. He relied on S. 88 (1) of the Motor Vehicles Act, 1988 (for short ''the Act'') in support of the contention. The sub-section reads thus:

Validation of permits for use outside region in which granted.--Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned.

Since the three provisos to the sub-section are not material for this decision they are omitted). Sub-sections (2), (3) and (4) of Sec, 88 of the Act are also material and hence they are extracted below:

(2) Notwithstanding anything contained in sub-section (1), a permit granted or countersigned by a State Transport Authority shall be valid in the whole state or in such regions within the State as may be specified in the permit.

(3) A Regional Transport Authority when countersigning the permit may attach to the permit any condition which it might have imposed if it had granted the permit and may likewise vary any condition attached to the permit by the authority by which the permit was granted.

(4) The provisions of this Chapter relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of countersignatures of permits:

(Proviso is omitted)

Every application for a permit shall be made, under Sec. 69, to the Regional Transport Authority of the region in which it is proposed to use the vehicle. If it is proposed to use the vehicle in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which major portion of the proposed route or area lies Sec. 72 of the Act empowers the Regional Transport Authority to grant a stage carriage permit of any kind on the application made at any time under the Act. Of course, the Regional Transport Authority has power to summarily reject the application if it falls within the first proviso to Sec. 80 (2).

If one reads Sec. 88 in the background of the above provisions, it would appear that the Transport Authority before whom the application lawfully lies has the power to grant the permit. The only snag is that unless the permit is counter signed by the Transport Authority of the other region the permit shall not fee valid in that region. But the difficulty to follow the said procedure is on account of the commencing words in the subjection "except as may be otherwise prescribed". Those words indicate that the rule making authority shall have the power to prescribe rules providing a different procedure. The Kerala Motor Vehicles Rules, 1989 (for short ''the Rules'') have been made by the Government of Kerala in exercise of the powers conferred on it by different provisions of the Act. Rule 171 of the Rules is the material one and it reads thus:

Grant of regular permit for other regions without countersignature.-

(1) The Regional Transport Authority of any one region may, subject to the provisions of Section 72 of the Act, grant a permit, other than a permit referred to in rule 170 to be valid in any other region or regions in this State without the counter signature of the Regional Transport Authority or Regional Transport Authorities of the other region or regions concerned, and shall, as soon as possible, send a copy of the proceedings relating to the issue of such permit to the State Transport Authority.

(2) The Regional Transport Authority granting a stage carriage permit under sub-rule (1) shall, before granting the permit obtain the concurrence of the Regional Transport Authority or Regional Transport Authorities of the other or regions concerned.

A Constitution Bench of the Supreme Court considered the effect of the opening words "except as may be otherwise prescribed" in Sec. 63 of the Motor Vehicles Act, 1939 in the light of Rule 63 of the C.P. and Berar Motor Vehicles Rules, 1940 (vide Bundelkhand Motor Transport Company, Nowgaon Vs. Behari Lal Chaurasia and Another, ). The Bench observed that the legislature has, by providing in the opening part of sub-sec. (1) "except as may be otherwise prescribed" made the provision subject to the rules framed under Sec. 68 and hence Rule 63 must prevail over the direction of the statute. It was noted in the decision that power to frame rules for carrying into effect the provisions of Chapter IV is expressly granted to the State Government by Sec. 68 and the exercise of that power, if it be utilised for the purpose of carrying into effect the provisions of the Act, is not subject to any other implied limitations. A four Judges'' Bench of the Supreme Court has also observed in the same lines (vide Punjab Sikh Regular Motor Service, Moudhapara Vs. The Regional Transport Authority, Raipur and Another, ). It was held that provisions of Rule 63 must supersede the direction contained in Sec. 63 (1) of the statute. The basis for adopting the said view is that the legislature has made the provision subject to the rules framed by the State Government under Sec. 68 of the Motor Vehicles Act 1939.

It was contended by the learned Government Pleader that in the light of aforesaid decisions the only possible interpretation which can be made is that the procedure prescribed in Rule 171 would prevail over the procedure prescribed in Sec. 88 of the Act. (Sec. 88 of the Act corresponds to Sec. 63 of the Motor Vehicles Act, 1939.) The power to make rules was conferred on the State Government by Sec. 68 of the Motor Vehicles Act, 1939. Sec. 68 (1) of the M.V. Act, 1939 empowered the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV. Subsection (2) was worded like this: "Without prejudice to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following matters, namely,..................... (i) the conditions subject to which a permit granted in one region shall be valid in another region". The two decisions of the Supreme Court were rendered in the light of Sec. 68 as it stood then. But the legislature has amended Clause (h) in sub-section (2) of M.V. Act, 1939 (by inserting another Clause as hh). The amended Clause reads thus:

(hh) the conditions subject to which, and the extent to which a permit granted in another State shall be valid in the State without countersignature;

(i) the conditions subject to which, and the extent to which, a permit granted in one region shall be valid in another region within the State without countersignature;

(ii) the conditions to be attached to permits for the purpose of giving effect to any agreement such as is referred to in clause (iv) of sub-section (I) of section 43;

Sec. 96 of the present Act corresponds to Sec. 68 of the M.V. Act, 1939. The words in Clauses (x), (xi) and (xii) of sub-section (2) of Sec. 96 of the present Act are identical with the words employed in Clause (hh) of Sec. 68 of the M.V. Act. 1939. When Rule 171 of the Rules is read, it admits of no doubt that the said rule was prescribed in exercise of the powers envisaged in Clauses (x), (xi) and (xii) of Sec. 96 (2) of the present Act. An analysis of Sec. 68 vis-a-vis Rule 171 when read in the light of Sec. 96(2), Clauses (x), (xi) and (xii) would indicate without any doubt that rule 171 provides only a supplemental procedure for granting permit which should be valid in another region without countersignature. In other words, S. 88 provides one procedure for granting permit on an inter-regional route which shall not be valid in any other region unless countersigned by the Regional Transport Authority of that other region. Rule 171 empowers the Regional Transport Authority to grant a permit which would be valid even in any other region without countersignature of the Regional Transport Authority of that region When this is understood like that, it appears to me that Rule 171 does not supersede the procedure laid down in S. 88 (1), but only supplements to the other. The effect is this: The Regional transport Authority of any one region can grant a permit subject to the condition that the permit so granted shall be valid in any other region if countersigned by the Regional Transport Authority of that region. It is also possible for the Regional Transport Authority of one region to grand permit. It should be valid in any other region without countersignature if the Regional Transport Authority granting the permit obtains concurrence of the Regional Transport Authority of the other region. It is for the Regional Transport Authority before which the application lies to decide whether it should adopt either of the two procedures.

A learned single Judge of the Andhra Pradesh High Court has held in Y. Muidanna Vs. Regional Transport Authority, Anantapur and another, that what is provided in the rule must be treated as an exception. Another learned single Judge of the Karnataka High Court has held in K.J. Ballal v. M.S.T.A. Tribunal ( AIR 1974 Kar 132) that the Motor Vehicles Rules can only supplement but not supersede the power of the Transport Authority existing under Sec. 63(1) of the M.V. Act, 1939. A Division Bench of the Mysore High Court has observed in Krishna Murthy v. Mysore R.A. Tribunal (AIR 1963 Mys 329) that the expression "except as otherwise prescribed" means that although a permit issued by a Regional Transport Authority in respect of a route lying outside its own region shall not have any validity unless the Regional Transport Authority of that region countersigns it, a rule may nevertheless be made by the Government declaring that it shall have validity in the other region even without such countersignature. "The power created in that way can only supplement but cannot supersede existing power". The above decisions were endered in the light of the newly inserted Clause (hh) in Sec. 68 (2) of the M.V. Act, 1939. Those decisions support the view adopted by me. This Original Petition is ''disposed of by directing the 2nd respondent to place Ext. P1 application on the Agenda of the next meeting of the Regional Transport Authority, Trissur, so as to enable the said authority to take a decision as to which procedure should be followed by it in this matter. Ext. P1 application should be disposed of in accordance with the decisions so taken by the Regional Transport Authority.

I place on record my appreciation and gratitude to Sri. P. Ravindran, advocate, who addressed arguments in this case as amicus curiae on my request.

Original Petition is disposed of in the above terms.