Siju vs R.T.A., Kannur and Others

K.S. Radhakrishnan, J.—Question that has come up for consideration in this case is whether the Secretary, Regional Transport Authority, has got power to grant temporary permit on an inter-District Route without obtaining prior concurrence from the sister authorities. Third respondent submitted an application for regular permit on the route Cherupuza-Thrissur in respect of his stage carriage before the Regional Transport Authority, Kannur. Application was rejected by stating that the proposed route is well-served and the service would lead to traffic congestion and accidents. Third respondent then preferred appeal as M.V.A.A. No. 1306 of 1997 before the state Transport Appellate Tribunal against that order Tribunal allowed the appeal and granted the regular permit to the third respondent.

Third respondent then produced the KL-8/K 1629 before the Secretary, Regional Transport Authority, kannur, and requested the Secretary to issue regular permit. Secretary, issued the regular permit to the vehicle to operate on inter-District route via Alakkode as ordinary limited stop service, valid for a period of five year a set of timings subject to countersignature from the Regional Transport Authorities, kozhikode Malappuram and Thrissur.

Secretary, Regional Transport Authority, Kannur in the meantime, began to issue successive short term temporary permits for 20 days without obtaining concurrence or countersignature from the Regional Transport Authorities, Kozhikode, Malappuram, and Thrissur. Petitioner, a regular permit holder of stage carriage KL/8E 1555, on an inter-District route, Thrissur-Kannur, aggrieved by the action of the Secretary, submitted several objections before the second respondent, highlighting the illegal operation of the vehicle by the third respondent, as well as against issuance of successive temporary permits on inter-District routes without prior concurrence or countersignature from the sister Regional Transport Authorities. Since no action has been taken by the second respondent, petitioner has approached this Court.

Counsel for the petitioner contended that the Secretary, Regional Transport Authority has no power to issue temporary permits to the third respondent to operate his vehicle on inter-District routes, without obtaining counter signatures or concurrence of other Regional Transport Authorities. Counsel for the third respondent, however, maintained the stand that Sec. 88(7) of the Motor Vehicles Act read with Rules 171 and 133 of the Kerala Motor Vehicles Rules would enable the Secretary to issue successive temporary permits on inter-District routes without countersignature or concurrence.

In order to examine the rival contentions it is necessary to examine the various provisions of the Act and the Rules. Sec. 72 of the Act enables a Regional Transport Authority to entertain an application under Sec. 70 and grant a regular stage carriage permit in the respective region in which it has got jurisdiction. A permit granted by a Regional Transport Authority under Sec. 72 of the Act is valid within the region in which the primary authority has got jurisdiction. A Regional Transport Authority can entertain an application for inter-District route and grant the same. Sec. 88 of the Act validates the permits so granted by the primary authority to be operative in other regions as well after obtaining countersignature or getting concurrence from Regional Transport Authorities of other regions. In this connection, reference may be made to S. 88(1) of the Act, which is extracted below:

Validation of permits for use outside the region in which granted:--(1) 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 cocerned:

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Rule 171 of the Rules deals with grant of regular permit for other regions without countersignature. Rule 171 is extracted below:

Grant of Regular permit for other regions without countersignature:-- (1) The Regional Transport Authority of any one region may, subject to the provisions of Sec. 72 of the Act, grant a permit, other than a permit referred to in R. 170 to be valid in any other region or regions in this State without the countersignature 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 region or regions concerned.

(3)......

(emphasis supplied)

Section 88(1) starts with the words "except as may be otherwise prescribed". The meaning of those words in the context of Motor Vehicles Act, 1939 which is similar to Sec. 88 of the present Act was considered by the Supreme Court in Bundelkhand Motor Transport Company, Nowgaon Vs. Behari Lal Chaurasia and Another, , which was followed by this court in Parameswaran Nair v. R.T.O., Thrissur, (1990) 2 KLT 812. This court held that Rule 171 does not supersede the procedure laid down in Sec. 88(1) but only supplements Sec. 88(1). It is therefore for the Regional Transport Authority of one region before which the application is made to decide whether it should accept either of the two procedures, ie. counter signature or concurrence.

On a conjoint reading of Secs. 72 and 88(1) and Rule 171 of the Kerala Rules, it is clear that a regular permit granted by a Regional Transport Authority of one region under Sec. 2 could be validated in other region or region provided permit is countersigned by the Regional Transport Authorities of other region or regions or after obtaining concurrence. This is the position as far as regular permit applications are concerned.

We will now consider the question of grant of temporary permits. Just like Sec. 72 postulates issuance of a regular permit by a Regional Transport Authority in a region, Sec. 87 postulates issuance of a temporary permit by a Regional Transport Authority in a region. Sec. 87 reads as follows:

Temporary permits.- (1) A Regional Transport Authority and the State Transport Authority may without following the procedure laid down in Sec. 80 grant permits to be effective for a limited period which shall not in any case exceed four months, to authorise the use of a transport vehicle temporarily.

(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings; or

(b) for the purposes of a seasonal business, or

(c) to meet a particular temporary need, or

(d) pending decision on an application for the renewal of a permit, and may attach to any such permit such condition as it may think fit.

Provided.....

A Regional Transport Authority therefore could issue temporary permits in the region in which it has got jurisdiction without following the procedure laid down in Sec. 80 to be effective for a limited period which shall not in any case exceed four months.

A temporary permit issued by a Regional Transport Authority on a inter-District route under Sec. 87 of the Act could be validated in other region or regions also in accordance with Sec. 88(7) of the Act. Sec. 88(7) reads as follows:

88(7) Notwithstanding anything contained in sub-section (1), a Regional Transport Authority of one region may issue a temporary permit under Sec. 87 to be valid in another region or State with the concurrence, given generally or for the particular occasion of the Regional Transport Authority of that other region or of the State Transport Authority of that other State, as the case may be.

On a combined reading of Secs. 87 and 88(7) of the Act, it is clear that a temporary permit issued by a Regional Transport Authority in one region will be valid in another region or State with the concurrence given generally or for the particular occasion of the Regional transport Authority of that other region or of the State Transport Authority of that other State, as the case may be. However, Rule 170 of the Kerala Rules validates a temporary permit granted by a Regional Transport Authority in other region or regions without counter signature. The said rule is extracted below for easy reference:

Grant of temporary permit for other regions without counter signature.-- A temporary permit granted by a Regional Transport Authority shall be valid in any other region or regions in this State without countersignature by the Regional Transport Authority of the other region or regions in the following cases:

(a) a temporary permit granted under clause (a) or (c) of Sec. 87 of the Act for a period not exceeding 20 days;

(b) a temporary permit under clause. (c) of Sec. 87 of the Act for a period exceeding 20 days and under clause (b) of Sec. 87 of the Act granted to a contract carriage.

(c) a temporary permit under clause (c) of Sec. 87 of the Act for a period exceeding 20 days and under clause (b) of Sec. 87 of the Act granted to a stage carriage, provided that prior concurrence of the Regional Transport Authority or Regional Transport Authorities concerned shall have been obtained for the issue of the temporary permit.

Provided that such concurrence shall not be necessary for the grant of a temporary permit to perform substitute service in a place of a vehicle already covered by a valid permit for operation on any inter-District route.

(d) a temporary permit granted under clause (d) of Sec. 87 of the Act, provided that the permit in respect of which application for renewal is pending is renewable under these rules without countersignature by the Regional Transport Authority or Regional Transport Authorities concerned.

(emphasis supplied)

On a combined reading of Sec. 87 and 88(7) and Rule 170 of the Kerala Rules, it is clear that a Regional Transport Authority of a particular region could issue a temporary permit in certain cases to be valid in other region or regions with the concurrence given generally or for the particular occasion of the Regional Transport Authority of other region or regions. A temporary permit granted under clause (a) or (c) of Sec. 87 of the Act, for a period not exceeding 20 days, and also a temporary permit granted under clauses (c) and (b) of Sec. 87 of the Act exceeding 20 days is operative in other regions, provided prior concurrence of sister authorities have been obtained. This is the position so far as temporary permit granted by a Regional Transport Authority of a region is concerned.

Now we shall examine the powers of Secretary, Regional Transport Authority, who as per Rule 121 of the Kerala Rules is the Regional Transport Officer, and therefore the Executive Officer of the Regional Transport Authority. Regional Transport Authority may for the prompt and convenient dispatch of business by general or special resolution delegate to the Secretary certain functions which are enumerated in Rule 133 of the Kerala Rules, some of which relevant for our purpose, are extracted below:

Power of Regional Transport Authority-Delegation to Secretary.--(1) The Regional Transport Authority may, for the prompt and convenient despatch of business, by general or special resolution, delegate to the Secretary, any or all of the following functions.

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(j) power under Sec. 87 of the Act to grant or refuse a temporary permit.

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(m) power to grant temporary permit under sub-section (7) of Sec. 88 of the Act,

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(4) The Regional Transport Authority may, by general resolution, delegate to Chairman the power to grant prior concurrence referred to in sub-rule (c) of R. 170.

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Above mentioned rule says that Regional Transport Authority may delegate to its Secretary certain functions. Only those functions which are enumerated in the Rule could be delegated. Under Rule 133(1)(j), the power under Sec. 87 of the Act to grant or refuse a temporary permit could be delegated to the Secretary. So also the power to grant temporary permit under sub-section (7) of Sec. 88 of the Act on inter-District route also could be delegated by a general or special resolution.

Now let us examine the powers vested on the Secretary of a Regional Transport Authority under Sec. 87 as well as under Sec. 88(7) of the Act, with which we are primarily concerned in this case. As already mentioned, just like Sec. 72, authorises a Regional Transport Authority to issue a regular permit in a region, Sec. 87 also authorises a Regional Transport Authority to issue temporary permit in a region. Only the powers exercised by a Regional Transport Authority under Secs. 87 and 88(7) have been delegated to the Secretary, Regional Transport Authority, under Rule 133(1)(j) and (m) respectively, and not the powers to be exercised by a Regional Transport Authority under Rule 170, 171 etc. Rule making authority has conferred those powers only to the Regional Transport Authority and not to its Secretary. Secretary, Regional Transport Authority is only a delegate, and must be strictly confined to the powers delegated to him by the statute. The Secretary of a Regional Transport Authority therefore could issue temporary permit only in exercise of powers under Sec. 88(7) of the Act in a region to be valid in other regions, and this too only after obtaining prior concurrence of the Regional Transport Authorities of other region or regions.

The rule-making authority in its wisdom thought Secretary of a Regional Transport Authority being an Executive Officer of a Regional Transport Authority shall not temporary permit beyond the jurisdiction of the respective Regional Transport Authority, unless he gets concurrence of other sister authorities. Secretary of a Regional Transport Authority who is the Regional Transport Officer of a region is only an executive officer and therefore not expected to usurp the jurisdiction of a Regional Transport Authority of other regions without their concurrence. Under Sec. 87 read with Rule 133(1)(j) Secretary, Regional Transport Authority, can always issue temporary permit within the region of the Regional Transport Authority, of which he is the Secretary. But if the temporary permit is for on Inter-District route, he has to obtain prior concurrence, whether the period exceeds 20 days or not because no time limit is prescribed in Sec. 88(7) of the Act.

Secretary is not an authority as defined under Sec. 68 of the Act. Sec. 68 states that the State Government shall, by notification in the official gazette, constitute for the State, a State Transport Authority to exercise and discharge the powers and functions specified in sub-section (3) and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (regions) as may be specified in the notification in respect of each Regional Transport Authority, the powers and functions conferred by or under Chap. V on such authorities. In this connection, reference may be made to Sec. 68(2) which constitutes STA/RTAs. Sub-section (2) of Sec. 68 reads as follows:

(2) A State Transport Authority or a Regional Transport Authority shall consist of a Chairman who has had judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order to take any decision under any law and in the case of a State Transport Authority, such other persons (whether, officials or not) not being more than four, and in the case of a Regional Transport Authority such other persons (whether officials or not) not being more than two, as the State Government may think fit to appoint, but no person who has any financial interest whether, as proprietor employee or otherwise in any transport undertaking shall be appointed or continue to be a member of a State or Regional Transport Authority, and, if any, person being a member of any such Authority acquires a financial interest in any transport undertaking he shall within four weeks of so doing, give notice in writing to the State Government of the acquisition of such interest and shall vacate office.

Provided........

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(5) The State Transport Authority, and any Regional Transport Authority, if authorised, in this behalf by rules made under Sec. 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.

Regional Transport Authorities and State Transport Authorities are quasi-judicial authorities constituted under Sec. 68 of the Act primarily intended to entertain applications for regular permit and temporary permit. However, for the prompt and convenient despatch of business, a Regional Transport Authority, under Sec. 68(5) read with Rule 133 of the Kerala Rules, may delegate such of its functions and powers specifically enumerated. Secretary exercises, that power as a delegate, Delegate those power delegated to him. Special powers given by the rule making authority under R. 170 or 171 to the Regional Transport Authority have not been delegated to Secretary. Only power delegated to Secretary is the power to grant temporary permit in a particular region under Sec. 87 of the Act and also the power given to a Regional Transport Authority to issue a temporary permit in a particular region to be valid in other with the concurrence of other Regional Transport Authorities under Rule 133(1)(j) and (m) respectively, and nothing more. A delegate can function only within the parameters of those power delegated A delegate can act only intravires the powers granted. Whenever a delegate acts beyond the power conferred upon him by statute, such act becomes ultra vires and according void. In order to determine as to whether a delegate has acted in excess of the powers, reference has to be made to the specific provisions made in the relevant statute conferring the power and object and purpose of the Rules. Where power is given to do certain thing in certain way, that thing must be done in that way or not at all. Rule making authority has conferred the power under R. 170 and 171 only on the Regional Transport Authority, and not no the Secretary of a Regional Transport Authority. Therefore it can safely be concluded that Secretary of a Regional Transport Authority has no power to grand temporary permit outside the areas of the respective Regional Transport Authorities without the concurrence of the sister authorities, a power which can be exercised only by the Regional Transport Authorities in exercise of powers under Rule 170 of the Kerala Rules.

In this case, regular permit has already been granted by the Tribunal, and therefore it is for the Regional. Transport Authority Kannur, to obtain either countersignature or concurrence from the Regional Transport Authorities of Kozhikode, Malappuram and Thrissur Accordingly there will be a direction to the Secretary Regional Transport Authority Kannur, to place the matter before the Regional Transport Authority Kannur so as to seek countersignature /concurrence from the Regional Transport Authority Kozhikode, Malappuram and Thrissur Since I have already found that the Secretary, Regional Transport Authority, has no jurisdiction to issue temporary permit on inter--District routes without obtaining concurrence from sister Regional Transport Authorities, I declare that all the temporary obtaining concurrence are illegal and void

Counsel for the third respondent contended that an existing operator can not object to the grant of regular permit in favour of the third respondent. Reliance was placed on the decisions of the Supreme Court in Mithilesh Garg, Vs. Union of India and others etc. etc., and the decisions of this Court in Girija Devi v. Mathew, (1991) 1 KLT 253 and Secretary, C.T.R.B.T. Co-op. Society v. Mathew Job, (1992) 1 KLT 297. I am of the view that those decisions are not applicable to the facts of this case, since petitioner has not objected to the grant. The question involved is one of jurisdiction of the Secretary, Regional Transport Authority, to issue successive temporary permits without concurrence. It is declared that the Secretary, Regional Transport Authority has no jurisdiction to grant temporary permit on inter-District route without prior concurrence of the Regional Transport Authorities of other regions. Temporary permits issued to the third respondent without prior Concurrence of the other Regional Transport Authorities are declared as Illegal and void.

O.P. is allowed.