Velayudhan vs R.T.A., Kottayam and Another

P. Govindan Nair, J.—We are disposing of these writ applications by a single judgment because they raise a common question. And the common question is whether the Regional Transport Authority acted against the mandatory provisions contained in the first proviso to Section 62 of the Motor Vehicles Act in granting temporary permits to the second respondent in each of these writ applications on the route Kottayam to Ernakulam Via Vaikom. The facts are the following: The petitioner in O.P. No. 3154 of 1965 was an applicant for the issue of a stage carriage permit on the route Kottayam-Ernakulam via Vaikom. During the pendency of his application for such a permit on the motion of the second respondent a temporary permit has been issued to him on the identical route.

The petitioner in O.P. No. 3196 of 1965 holds two regular permits one from Kottayam to Vaikom and another from Vaikom to Ernakulam. Applications were pending before the Regional Transport Authority made by other persons for regular permits on the route Kottayam-Ernakulam Via Vaikom. It was then that the second respondent to this writ application moved before the Regional Transport Authority for the grant of a temporary permit on the route Kottayam-Ernakulam via Vaikom and this too has been granted. The grants are evidenced by Ext. P. 5 in O.P. 3154 and Ext. P. 1 in O.P. 3196. These orders are impugned in these writ applications.

Section 62 reads thus:

Temporary permits--A Regional Transport Authority may without following the procedure laid down in section 57, grant permits, to be effective for a limited period not in any case To 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 any condition it thinks fit;

Provided that a temporary permit under this section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit u/s 46 or section 54 during the pendency of the application:

Provided further that a temporary permit under this section shall, in no case be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such application for renewal.

In order to understand what is meant by the expression that ''a temporary permit shall in no case, be granted in respect of any route or area specified in an application for the grant of a new permit u/s 46 or Section 54 during the pendency of the application'' it is necessary to refer to the relevant Sections of the Act. Section 42 insists that

No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority............

It is provided in Section 45:

Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles;

There are four categories of permits contemplated by the statute, stage carriage permits, contract carriage permits, private carrier''s permits, and public carrier''s permits. Section 46, the marginal note of which states ''application for stage carriage permit'' details the particulars that should be contained in an application for a stage carriage permit. Similar provisions are made in Section 49 regarding applications for contract carriage permits, in Section 52 in regard to applications for private carriage permits and in Section 54 in regard to applications for public carriage permits. It is unnecessary to refer to the various Sections 46, 49, 52 and 54. We may refer to Sections 47 and 48. Section 47 provides that a Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the matters specified in sub-section (1) of that Section and Section 48 states that:

Subject to the provisions of Section 47, a Regional Transport Authority may, on an application made to it u/s 46, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:

There is an omnibus section, Section 57. We say omnibus section because it deals with all the various types of applications that have been referred to and that Section which is headed ''Procedure in applying for and granting permits'' deals with the manner in which the applications should be dealt with and it is only after complying with the provisions of that Section can an application be refused or granted as envisaged by the statute.

In the light of the above provisions, it appears to us to be clear that what is meant by ''......specified in an application for the grant of a new permit u/s 46 or Section 54'' mentioned in the first proviso to Section 62, already read, means an application either for a stage carriage permit as visualised by Section 46 or an application for a public carriage permit as envisaged by Section 54. It was pointed out that an application can only be u/s 57 and Section 46 merely enumerates the details that should be contained in an application. However, the statute has deemed it necessary and fit to term an application for the issue of stage carriage permit as an application for the grant of a permit u/s 46. This is clear from Section 48. The same wording has been used in the proviso to Section 62. So what is meant is evident, namely, the route specified in an application for the grant of a stage carriage permit or the route specified in an application for the grant of a public carriage permit. This is so notwithstanding the provision in Rule 175 read with the various forms prescribed to which our attention has been invited. These forms have referred to Sections 42, 45, 46 and 57 (Form P. S. P. A. in the matter of an application for the grant of a stage carriage permit) and similar references are made in the forms of the applications for other permits, for instance, in the matter of an application for a public carriage permit to Sections 42, 54 and 57. These only state that the application is in accordance with these Sections. In any view, these provisions in the rules and in the forms cannot have any greater value than what is mentioned in the statute itself.

Understanding the proviso in the manner in which we have understood it, it appears to us that there can be little doubt that there is an inhibition which is imperative in terms and nature so far as the grant of a temporary permit under Sub-section (a), (b), (c) or (d) of Section 62 on the route specified in an application for the grant of a stage carriage permit during the pendency of that application. We are unable to see any means by which it is possible to get over this inhibition which we have already pointed out is mandatory in character. Even so various attempts have been made by counsel to nullify the apparent effect of the proviso. Our attention has been invited to the use of the word ''new'' in the expression ''new permit'' in the proviso to Section 62 and it was suggested that the proviso will be attracted only in such cases where applications have been made for the grant of a permit in an entirely new route, which counsel termed as a virgin route, meaning thereby a route on which no vehicle had been granted permits to run. We do not see how we can limit the meaning of the proviso to applications made for permits on routes on which no vehicles ply. It seems to us that the ''new'' is contradistinct to an application for the renewal of a permit which is dealt with under sub-section (d) of Section 62 (1). It is also not possible to limit the proviso to cases where suo moto applications have been made without there being any indication from the Regional Transport Authority that those applications will be entertained, i.e., without any notice being issued as contemplated by Section 57 of the Motor Vehicles Act fixing the date within which applications should be made. We therefore come to the conclusion that during the pendency of applications for the issue of stage carnage or public carrier''s permits no temporary permit can be granted on the routes for which such applications have been made.

It is suggested that the conclusion that has been reached is opposed to the view that has been taken by the Supreme Court and our attention has been drawn to the decision of the Supreme Court in The Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal (M. P.) v. B. P. Upadhyaya, Regional Transport Authority, Raipur and others--reported in (1965) II S. C. W. R. 510.

The question that arose for consideration therein was whether there could be the grant of a temporary permit for the alleged temporary need that arose during the time before the grant of a regular permit, to satisfy a permanent need. This question has been dealt with in paragraph 3 of the judgment and the first contention that is raised on behalf of the appellant before the Supreme Court was

"......that there was a particular temporary need for the provision of transport facilities and the High Court was erroneous in taking the view that whenever there was a permanent need there could be no temporary need, and so temporary permit could not be granted under S. 62 (c) of the Motor Vehicles Act.

This contention was accepted by the Supreme Court.

The only further contention that was raised before the Supreme Court and decided by the Supreme Court has been dealt with in paragraph 4 of the judgment. We may read the relevant portion of that paragraph: Learned counsel placed reliance on the words ''in any case'' appearing in S. 62 of the Motor Vehicles Act which has already been quoted. It was urged that the words ''in any case'' mean that under no circumstances a temporary permit can be granted on any route for more than a total period of 4 months. We are of opinion that the words ''in any case'' do not mean ''in any circumstance''. The section means that at any time the Regional Transport Authority is not permitted to issue to any person a temporary permit for a period exceeding 4 months, but if the temporary need persists, as, for example, where the formalities under S. 57 are not completed within a period of 4 months, it would, in our opinion, be permissible for the Regional Transport Authority to grant a second temporary permit in order to meet the temporary need. We should, of course, make it clear that the Regional Transport Authority cannot abuse its power and go on granting temporary permits in quick succession and not take speedy action for completing the procedure under S. 57 of the Motor Vehicles Act.

We understand the above passage only to mean that there is no bar in granting temporary permits repeatedly for periods which at any one time do not exceed four months. We are not suggesting that the passage relied on by counsel, and repeatedly stressed, reading as under:

......but if the temporary need persists as, for example, where the formalities under S. 57 are not completed within a period of 4 months, it would, in our opinion, be permissible for the Regional Transport Authority to grant a second temporary permit in order to meet the temporary need.

does not create some difficulty. In fact, the learned Judge who referred these cases to the Division Bench expressed in the reference order

......and, as I see it, these formalities can commence only on receipt of an application so that it would appear that there should be an application pending so as to attract the first proviso to section 62......

taking the view that the formalities, which it is said will have to be completed, commence only with the presentation of an application, the Supreme Court decision can mean that before such formalities are completed temporary permits can be granted. We do not think that it will be correct to understand the passage of the Supreme Court in that manner. The Supreme Court has extracted Section 62 in its judgment shortly before writing the passage to which we have referred. Not only that no question about the applicability of the proviso arose for consideration before the Supreme Court but the temporary permit that was granted which was the subject matter of challenge was granted on 25th November, 1964. At the time there were no applications for a regular permit before the Regional Transport Authority. In fact it is clear from the facts stated that the Regional Transport Authority had granted a regular permit to the third respondent to the appeal. This was however cancelled. Thereafter fresh applications were invited only on 14th December, 1964. This is also seen from paragraph 7 of the judgment. So it is evident that no applications for a regular permit were before the Regional Transport Authority on 25th November, 1964. No question could therefore have arisen about the applicability of the proviso and it is impossible to understand the passage to mean that notwithstanding the imperative terms of the proviso the Supreme Court meant to say that the temporary permits can be issued even while applications were pending before the Regional Transport Authority.

In the result, we quash Ext. P. 5 in O.P. 3154 and Ext. P. 1 in O.P. 3196 and allow these writ applications. We make no order as to costs.