Sathish Nayak vs Regional Transport Authority and Another

Hari Nath Tilhari, J.—Heard Sri Puttige R. Ramesh, learned Counsel for the petitioner, Sri C.B. Sreenivasan assisted by Sri C.V. Kumar,

learned Counsel for the second respondent and Sri B. H. Satish, learned Government Advocate for the first respondent.

This writ petition is directed against the resolution of the Regional Transport Authority, Udupi Dist., Udupi (Respondent-1 herein) dated 24-11-

2000 in Subject No. 69/2000-01, the copy of which is produced as Annexure-B to the writ petition. The petitioner has also prayed for a direction

declaring that the order of the Regional Transport Authority, Udupi District, Udupi vide Annexure-B has the effect of nullifying the judgment of this

Court in Writ Petition No. 37394/1999 a copy of which is produced at Annexure-A to the Writ Petition.

The petitioner claimed to be an operator operating stage carriage service on the strength of permit bearing No. 20/98-99 according to the

petitioner is valid upto 28-6-2003. The petitioner''s case is that he has applied for permit of the stage carriage on the routes as mentioned in

paragraph 1 of the writ petition. Sri H. Devadas Hegde the second respondent in this writ petition was the holder of stage carriage permit issued

u/s 47/57 of the Motor Vehicles Act. 1939 which permit did bear No. 4/SK/ 52 and was valid only upto 1-3-1996. The second respondent had

not got his permit renewed before the expiry of the period of permit i.e., 1-3-1996, Subsequently on the basis of the decision in Gajraj Singh etc.

Vs. The State Transport Appellate Tribunal and others etc., , the petitioner made application before the concerned authority for the grant of permit

on the same lines as the old permit. The said request was rejected by a resolution dated 20-7-1998 on Subject No. (sic)-99. The present second

respondent had filed the appeal before the Transport Tribunal. The Tribunal by its judgment dated 2-7-1999 dismissed the second respondent''s

appeal and upheld the resolution of the State Transport Authority dated 20-7-1998 and from that decision of the Tribunal the second respondent

preferred a Writ Petition No. 37394/99 and this Court vide its judgment dated 7-8-2000 delivered in the writ petition refused to interfere with the

order of the State Transport Appellate Tribunal and dismissed the said writ petition. No doubt, a direction was issued to the second respondent

Regional Transport Officer, Udupi to treat the present second respondent''s application dated 16-1-1998 vide Annexure-C as an application

made under the new Act for grant of fresh permit and the same shall be disposed of by an appropriate order in accordance with law, within 30

days from the date of communication of the order. Thereafter, the first respondent-Regional Transport Authority, Udupi District, Udupi, held its

meeting on 24-11-2000 and it was again requested by the second respondent to grant renewal of the stage carriage permit bearing No. 04/SK/52

which was valid upto 1-3-1996 for a further period of five years from the date of the expiry of the period and it was requested that in view of the

amendment introduced in the Motor Vehicles Act, 1988 by the Motor Vehicles (Amendment) Act 2000 (Act No. 27 of 2000) to pass the order

of renewal of the old permit u/s 217-A as has been introduced. The Regional Transport Authority, Udupi, had opined that under the provisions

viz., Section 217A, it has got power to renew and passed the order of renewal & it condoned the delay by fixing the compounding fine amount of

Rs. 10,000/- for late submission of the application for the renewal and renewed it for a further period of five years with usual conditions attached in

the permit. The Regional Transport Authority has ordered that the renewed permit shall be valid from 1-3-1996 onwards for a period of five years

and directed the Secretary to take appropriate action as per law. Feeling aggrieved of the said resolution of the Regional Transport Authority,

Udupi District, Udupi, the petitioner has come up before this Court by writ petition under Article 226 of the Constitution of India.

I have heard the learned Counsels for the parties as mentioned above.

The first and the foremost contention that has been advanced by Sri P.R. Ramesh, learned Counsel for the petitioner that as laid down in Gajraj

Singh etc. Vs. The State Transport Appellate Tribunal and others etc., with the enforcement of the Motor Vehicles Act, 1988 and the repeal of

Act of 1939 the provisions of Sections 47 and 57 of the Motor Vehicles Act, 1939 stood repealed and there has been no provision for the

renewal of the permits granted under the Motor Vehicles Act, 1939. Their Lordships laid it down that the permit holders after the expiry of the

permits viz., after the coming into force of the Act could apply u/s 70/72 of the Motor Vehicles Act, 1988 for any further period but there could be

no renewal of the permit issued under old Act and Section 81 of the Act of 1988 did not cover those cases i.e., cases relating to the permits which

had been granted under the old Act and expiring after the date of the coming into force of the new Motor Vehicles Act 1988. In view of that

decision, when the writ petition was filed in this Court earlier i.e., W.P. No. 37349/1999 this Court vide its judgment delivered by the Hon''ble Mr.

Justice Mohamed Anwar refused to interfere with the order of the State Transport Appellate Tribunal and directed the State Transport Appellate

Tribunal to consider the application filed for the renewal of permit by the petitioner of that writ petition treating the same as an application for fresh

permit under the Motor Vehicles Act, 1988 and to proceed in accordance with law. When once this direction had been given that direction had to

be followed by the authority concerned.

The respondent No. 1 the Regional Transport Authority, in spite of this Court''s direction, opined that there is provision, as per amended Act for

renewal of stage carriage permit issued under the old Act of 1939 vide Section 217-A and it passed resolution renewing the said old permit which

had been granted under the old Motor Vehicles Act for the period from 1-3-1996 for further period of five years in spite of the Court''s view and

that of Supreme Court that there could not be renewal of old permit under new Motor Vehicles Act and the application made for renewal may be

treated to be as one made for grant of fresh permit in the context of the earlier application. The Regional Transport Authority concerned appears to

ignore and violate the direction issued by this Court as such it acted in breach of against basic norms of the judicial discipline. I do not wish to use

the harsh words as committing contempt. Anyway, the direction was not followed. I hope this above note will suffice its object to enlighten the

Subordinate Judiciary and tribunals.

The authority concerned was persuaded by the advocacy of the second respondent to go astray and to pass the order of renewal of old permit

i.e., old permit granted under the Motor Vehicles Act, 1939 which had expired and died its death long before the coming into force of Section

217A of the Motor Vehicles (Amendment) Act, 2000. The authority did not apply its mind whether the powers u/s 217A could be applied and

were available for being exercised with reference to the permit that has lived its life and expired long before the amendment made the Motor

Vehicles Act of 1988, by insertion of Section 217-A. Had the second respondent made the application for the fresh permit under the new Act

before the expiry of the old permit and that application could have been considered as fresh application. No doubt, the authority could grant the

permit, if requisites of law had been fulfilled and satisfied. But, here the authority has proceeded to grant the order of renewal by assuming that it

had got that power.

The learned Counsel for the respondent No. 2 Shri C.B. Sriniwasan contended that the provision u/s 217-A is procedural one and the

procedural provision is deemed to have been retrospective in effect. The learned counsel has referred to the decision of the Hon''ble Supreme

Court in K.S. Paripoornan Vs. State of Kerala and Others, , under the Land Acquisition Act (1 of 1894) wherein Section 23(1A) was inserted by

Amendment Act 68 of 1984. The learned counsel contended that Section 23(1A) was given retrospective erect. This decision is not applicable to

the facts of the present case, as in that case Section 30 of Amending Act very clearly provided the amendment therein are to operate

retrospectively with reference to the certain back dates referred to in that section. In that section the Legislature used the expression shall be

inserted and shall always be deemed to have been inserted. Under the law if it so provided that it shall always be deemed to have been inserted

from the back dates''. The intention of the Legislature is always to be taken to be of retrospective as per section of that Act. But, in the present

case Section 5 of Act No. 27 of 2000 used the expression that Section 217A shall be inserted. It will be appropriate to quote Section 5 of the

Motor Vehicles (Amendment) Act 2000 (No. 27 of 2000), it reads as follows:

After Section 217 of the principal Act the following section shall be inserted namely.

217A. Notwithstanding the repeal by Sub-section (1) of Section 217 of the enactments referred to that sub-section any certificate of fitness or

registration or licence or permit issued or granted under the said enactments may be renewed under this Act.

The expression shall be inserted and there being no such expression used in this section as shall always be deemed to have been inserted, the

amendment and introduction of Section 217A by Act No. 27 of 2000 cannot be taken to be retrospective in operation, it is always prospective. It

could apply only to those cases where licence issued under the old Act expires after 11-8-2000 with respect to those cases it could be said that

power u/s 217A may be exercised. That the amending section not having been retrospective in operation as such as per the Legislatures intent the

power could not be exercised with reference to the permits issued under the old Act which had expired earlier to 11-8-2000. In the present case,

the permit in question which had been granted to the second respondent under the Motor Vehicles Act of 1939 had expired and had out lived its

life on 1-3-1996. Therefore, there was no power to renew that permit.

Shri C.B. Sreenivasan, learned counsel appearing for the second respondent raised two contentions and submitted that the provision

mentioned is a procedural provision, so it is deemed to be retrospective effect. But, no doubt substitution provision of law conferring any power or

right unless expressly provided to have retrospective will be prospective. So far as the basic principle of law is concerned, there cannot be any

dispute. As regards the proposition of law that the provision of law which confer right or power has to be taken to be prospective in operation,

unless the Legislative intent is expressed in the Act giving it retrospective operation and ordinarily procedural law in respect thereof if amendment is

made it may have retrospective effect. Section 217A, confers power no doubt on the Regional Transport Authority/State Transport Authority to

renew permits which were granted under the Motor Vehicles Act of 1939 and which ceased to exist on the coming into force of the Motor

Vehicles Act, 1988 with the repeal Act of 1939. No doubt, when the power is conferred a duty also follows and when the duty follows the

beneficiary from that duty gets right or to claim that right. In this context if we examine Section 217A, this provision i.e., Section 217-A as

introduced by Act No. 27 of 2000 confers power and right to renew the old permits under the Motor Vehicles Act of 1939 which power to

renew old permits issued under the Motor Vehicles Act of 1939 had ceased with the coming into operation of Motor Vehicles Act, 1988 as well

by repeal by Motor Vehicles Act of 1939. Thus considered, Section 217A cannot be said to have been introduced with retrospective effect. The

permit in this case as mentioned earlier, had expired almost more than four years earlier to the coming into force of the Motor Vehicles

(Amendment) Act No. 27 of 2000. As such, there was no power vested in Regional Transport Authority/State Transport Authority to grant

renewal of the old permits issued under old Act, which has expired and had out lived its life period long before the date of enforcement of Act No.

27 of 2000.

Sri C.B. Sreenivasan, learned counsel for the second respondent also raised a preliminary objection at the earlier stage that the petitioner had a

remedy of filing appeal or revision against the impugned order and therefore the writ petition should not be entertained and it should be thrown out

on the ground of alternative remedy. It is a well settled principle of law that the alternative remedy is no statutory bar by itself against the exercise

of jurisdiction under Article 226 of the Constitution by this Court. It does not curtail the power of this Court to entertain the writ petition and the

law on this aspect has been laid down by the Supreme Court in State of U.P. v. Mohammad Noon, AIR 1958 SC 86. It will be appropriate to

quote the observations made and law laid in the said decision by the Constitution bench of the Supreme Court. As paragraph 10 of the said report

the observations read as under :

In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where

there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal

has been conferred by statute, (Halsbury''s Laws of England, 3rd Edn., Vol. 11. p. 130 and the cases cited there). The fact that the aggrieved

party has another and adequate remedy may be taken into consideration by the superior Court in arriving at a conclusion as to whether it should in

exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior Courts subordinate to it and ordinarily the

superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the

exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and

instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In

the King v. Post Master General; Ex parte Car Michael (1928) 1 KB 1291 (E), a certiorari was issued although the aggrieved party had an

alternative remedy by way of appeal. It has been held that the superior Court will readily issue a certiorari in a case where there has been a denial

of natural justice before a Court of summary jurisdiction . The case of Rex v. Wandsworth Justices; Ex parte Read (1942) 1 KB 281 (F) is an

authority in point.

Their Lordships further observed in paragraph 11 as under :--

On the authorities referred to above it appears to us that there may conceivably be cases and the instant case is in point where the error,

irregularity or illegality touching jurisdiction or procedure committed by an inferior Court or Tribunal of first instance is so patent and loudly

obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an

inferior Court or Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the

proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the

superior Courts'' sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to

correct the error of the Court or Tribunal of first instance even if an appeal to another inferior Court or Tribunal was available and recourse was

not had to it or if recourse was had to it, it confirmed that ex facie was a nullity for reasons aforementioned. This would be all the more if the

Tribunals holding the original trial and the Tribunals hearing the appeal or revision were merely departmental Tribunals composed of persons

belonging to the departmentally hierarchy without adequate legal training and back ground and whose glaring lapses occasionally come to our

notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned

above it has the power to do so and may and should exercise it. We say no more than that.

This decision and the subsequent decision of their Lordships of the Supreme Court on this subject have been considered, later on, in the case

of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, and their Lordships of the Supreme Court at paragraphs 20 and 21

held as under;

Much water has since flown beneath the bridge, but there had been no corrosive effect on these decisions which, though old, continue to hold

the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution in spite of

the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no

jurisdiction or had purported to usurp jurisdiction without any legal foundation.

21, That being so, the High Court was not justified in dismissing the writ petition at the initial stage without exampling the contention that the show

cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in

acting as the TRIBUNAL"".

In the present case, I find that the Regional Transport Authority, Udupi District, Udupi has acted in excess of the jurisdiction in passing the

order of renewal of old permit which had been granted under the old Act of 1939 by wrongly assuming the jurisdiction to grant renewal, on the

basis of wrong Interpretation and consideration of Section 217A. As Section 217A did not apply and there has been a specific direction of this

Court to consider the application above for fresh permit, the Regional Transport Authority ignored that direction and passed the order without

jurisdiction. Therefore, the impugned order deserves to be quashed and a note of caution is to be issued to the Regional Transport Authority,

Udupi District, Udupi, that the direction issued by this Court has to be given weight and followed, Non-following of the direction of this Court may

result in serious consequence and serious view may be taken.

The writ petition, as such, is hereby allowed.

The resolution dated 24-11-2000 passed by the Regional Transport Authority, Udupi District, Udupi, in Subject No. 69/2000-01 (Annexure-

B) is hereby quashed.

Let the operative portion of this order be made available to the parties on payment of necessary charges.