N. Mudappa vs The Secretary, Regional Transport Authority and Another

Hari Nath Tilhari, J.

This petition under Article 226 of the Constitution of India is directed against the order dated 13.2.1997 passed by Regional Transport Authority, Bangalore reviewing and modifying the timings and their assignment. The contention of the learned Counsel for the petitioner is that the authority has modified the order, without complying with the requirements of provisions of law as contained in Section 72(2) (XXII) of Motor Vehicles Act 1988 without giving any notice to the petitioner. He has further contended that no power of review did vest in the authority. On behalf of the respondents this submission has not been disputed that the modification or variation of timings has been done without any notice to the petitioner. A perusal of the order particularly, the later part is material also to be quoted :

TIMINGS MODIFIED AND ASSIGNED Bangalore D. 7-10 am A. 1.30 p.m. Nelamangala A. 8-55 am D.12.15 pm D. 9-00 am S. Temple A. 9-25 am D. 11.15 am D. 9-30 am A. 11.10 am Dodballapura A.10.00 am D.10.30 am

If any occasion arises for modification of the schedule of timings, notice will be issued to the grantee and if the grantee appears shall be heard before modifying the assigned schedule.

Sri V. Basavaraju, the permit holder appeared and submitted a written statement pointing out the anomaly in the timings assigned which according to him is prejudicial to other two existing operators. According to his request the timings is remobilized so as to suit to public convenience and to avoid identical timings and overtaking".

From the perusal of the order, it appears that modification in the timings has been done only on the request submitted by Sri V. Basavaraju and as admitted by the parties, no notice had been issued: when the request was made for modification of the timings; to the respondents. Section 72 of the Act deals with the grant of Stage Carriage Permit. Section 72(2) of the Act reads as under :

(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:

(1) that the vehicles shall be used only in a specified area, or on a specified route or routes.

(2) that the operation of the stage carriage shall be commenced with effect from a specified date;

(3) the minimum and maximum number of daily trips to be provided in relation to any route or area generally or on specified days and occasions;

(4) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at a specified stands and halts on the route or within the area;

(5) that the stage carnage shall be operated within such margins, of deviation from the approved time-table as the Regional Transport Authority may from time to time specify;

(6) that within municipal limits of such other areas and places at may be prescribed, passengers or goods shall not be taken up or set down except at specified points;

(7) the maximum number of passengers and the maximum weight of luggage that may be carried on the stage carriage, either generally or on specified occasions or at specified times and seasons;

(8) the weight and nature of passengers'' luggage that shall be carried free of charge, the total weight of luggage that may be carried in relation to each passenger, and the arrangements that shall be made for the carriage of luggage without causing inconvenience to passengers;

(9) the rate of charge that may be levied for passengers'' luggage in excess of the free allowance;

(10) that vehicles of a specified type fitted with body conforming to approved specifications shall be used:

Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operation on that date;

(11) that specified standards of comfort and cleanliness shall be maintained in the vehicles;

(12) the conditions subject to which goods may be carried in the stage carriage in addition to or to the exclusion of passengers;

(13) that fares shall be charged in accordance with the approved fare table;

(14) that a copy of, or extract from, the fare table approved by the Regional Transport Authority and particulars of any special fares or rates of fares so approved for particular occasions shall be exhibited on the stage carriage and at specified stands and halts;

(15) that tickets bearing specified particulars shall be issued to passengers and shall show the fares actually charged and that records of tickets issued shall be kept in a specified manner.

(16) that mails shall be carried on the vehicle subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified.

(17) the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions;

(18) the conditions subject to which the vehicle may be used as a contract carriage;

(19) that specified arrangements shall be made for the housing, maintenance and repair of vehicle;

(20) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use;

(21) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority;

(22) that the Regional Transport Authority may, after giving notice of not less that one month, -

(a) vary the conditions of the permit;

(b) attach to the permit further conditions:

Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof;

(23) that the holder of a permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may from time to time prescribe;

(24) any other conditions which may be prescribed;

A perusal of Section 72(2) Clause (XXII) perse reveals that Regional Transport Authority is empowered to vary or modify the conditions of permit which may include the timetable vide the Clause VI of Section 72(2). He is also entitled to attach further conditions to the permit. It means as regards the power to vary conditions from time to time there power vests in the Regional Transport Authority and it cannot be said that Regional Transport Authority has no power to review its order or modify the timings or the conditions of the permit nor can it be said that no further conditions can be attached to the permit. A reading of Section 72 per se reveals that such power to modify or vary the conditions of the permit vests in Regional Transport Authority and that power to vary the condition includes the power to change the timings. How this power is to be exercised, that has also been specially indicated and shown as provided in Section 72(2)(XXlI) of Motor Vehicles Act, 1988, that before exercising such power, Regional Transport Authority is required to give a notice of not less than one month period. Giving of notice is not a mere formality. It means that notice should be given and if any party or permit holder is effected, files any objection, then his objections have also got to be considered and it is thereafter any order varying the condition of the permit or attaching any further conditions may be passed. When the law so provides, the manner for doing or exercising of this power, the intention of the legislature appears to be that power to vary condition or to attach further conditions shall not be exercised otherwise than the mode provided u/s 72(2}(XXII). In other words it can be said that there is now power to modify the conditions vested in the authority is not exercisable without giving due notice of a period of not less than one month. The power to vary is excisable only after giving notice to the party affected under law and after hearing the objections. In the present case when I so observe, I find support for my view from the decision of their Lordships of Privy Council in famous Nazir Ahamad''s case in AIR 1936 253 (Privy Council) . Their Lordships of the Privy Council laid down and observed at page 257 while dealing with a question on Section 164 of Cr.PC observed as under :

"The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain wav the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden".

This decision of Nazir Ahamad has ben followed by their Lordships of the Supreme Court in the case of State of Uttar Pradesh Vs. Singhara Singh and Others, . (Sarkar J.) In paras -7 and 8 of the said decision, their Lordships observed after having made reference to the two decisions viz., the decision of the Privy Council in Nazir Ahmed''s case and the decision of the Chancery Division in Taylor v. Taylor observed as under :

"Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted."

In the case of Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, their Lordships of the Supreme Court in para 46 emphasised on this aspect of the matter. Their Lordships were dealing in that case with the Circular of the State Government dated 6.2.1990 whereby the existing appointments in the Office of the Government Counsel were terminated with effect from 28.2.1990. Their Lordships in paras-35 and 36 of the report observed-

"35...... Arbitrariness is the very negation of the rule of law....

"36..... Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be your ever so high, the laws are above you. This is what men in power must remember, always."

Further in para-46 of the Report in Shrilekha Vidyarthi''s case, Supreme Court observed as under :

"Viewed in any manner the Circular dated 6.2.1990 is arbitrary. It terminates all the appointments of Government Counsel in the districts of the State of Uttar Pradesh by an omnibus order, even though these appointments were all individual. No common reason applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown. The submission on behalf of the State of Uttar Pradesh at the hearing that many of them were likely to be reappointed is by itself ample proof of the fact that there was total non-application of mind to the individual cases before issuing the general order terminating all the appointments. This was done inspite of the clear provisions in the L.R. Manual laying down detailed procedure for appointment, termination and renewal of tenure & the requirement to first consider the existing incumbent renewal of his tenure and to take steps for a fresh appointment in his place only if the existing incumbent is not found suitable in comparison to more suitable persons available for appointment at the time of renewal. In the case of existing appointees, a decision has to be first reached about their non-suitability for renewal before deciding to take steps for making fresh appointments to replace them. None of these steps were taken and no material has been produced to show that any existing incumbent was found unsuitable for the office on objective assessment before the decision to replace all by fresh appointees was taken. The prescribed procedure laid down in the L.R. Manual which has to regulate exercise of this power was totally ignored. In short, nothing worthwhile has been shown on behalf of the State of U.P. to support the impugned action as reasonable and non-arbitrary. The impugned circular must, therefore, perish on the ground or arbitrariness which is an available ground for judicial review in such a situation."

Their Lordships further observed that nonarbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason and no humour, whim or caprice. A perusal of this decision also reveals that if procedure is laid down, that has got to be followed in every possible manner and has got to be applied otherwise action may be said to be illegal on account of arbitrariness. In the present case, in my opinion, the order impugned has been passed otherwise than in accordance with the requirements of Section 72(2)(XXII) of the Act and without following the procedure and manner prescribed by law and such orders deserves to be quashed. Writ Petition is allowed. The order impugned dated 13.2.97 copy of which is annexure as annexure-B is hereby quashed. Writ Petition is allowed. Costs are made easy.