V.K. Vijayan Pillai vs The R.T.O., Thrissur

R. Rajendra Babu, J.—O.P. 10125/97, 11450/97, 938/98, 6160/98, 24201/98, 35209/2000 and 9977/2002 were filed mainly for directing the respondents, the R.T.A., the Transport Commissioner and the State of Kerala, not to issue any special permits to stage carriages for operation as contract carriages. O.P. 10125/97 was filed by the Secretary of the Kodungallur Area Drivers Union representing the owner-cum-driver of taxi cars and contract carriages. The petitioner in O.P. 11450/97 are owners of vehicles having contract carriage permits. O.P. 35209/2000 was filed by, 47 persons wherein petitioners 1 and 2 are passengers regularly travelling in stage carriages whereas petitioners 3 to 47 are owners operating their vehicles as contract carriages. O.P. 9977/2002 was filed by the Tourist Bus Operators Association, Irinjalakuda. O.P. 938/98 was filed by the All Kerala Contract Carriage Operators Association along with four contract carriage operators. O.P. 6160/98 was filed by the Pathanamthitta District Contract Carriage Operators Association represented by its President and Secretary and two contract carriage operators. O.P. 24201/98 was filed by the District President of the peoples Union for Civil Liberty Ayyanthole, Trichur. The common relief prayed for in all the above O.Ps. was to direct the RTOs. and the Transport Commissioner not to issue any special permits to stage carriages for operation as contract carriages. The petitioners in O.P. 938/98 and 6160/98 further prayed for quashing sec. 88(8) of the Motor Vehicles Act to the extent it permits the issue of special permits to stage carriages to operate as contract carriages as being illegal. Though the petitioner in O.P. 24201/98 sought for quashing the amendment to sec. 88(1) of the Act, the above prayer was not pressed. O.P. 9198/2002 was filed by the Kerala Private Bus Operators Federation for quashing the circular issued by the Transport Commissioner dt. 20.3.2002 prohibiting the issue of special permits to stage carriages to operate as contract carriages and also for directing them to issue special permits to stage carriages to operate as contract carriages on special occasions. O.P. 9621/2000 was filed by a company doing stage carriage operations for directing the R.T.A. to issue special permit as provided under sec. 88(8) of the Act in respect of the spare bus of the petitioner company. Heard the learned counsel appearing for all the petitioners and also the learned Government Pleader. For the sake of convenience the petitioners in O.P. 10125/97, 11450/97, 938/98, 6160/98, 24201/98, 35209/2000 and 9977/2002 are referred hereinafter as petitioners and the petitioners in O.P. 9198/2002 and O.P. 9621/2000 are referred as respondents.

One of the questions arising for consideration was whether the Motor Vehicles Act contemplate the issue of a special permit to a stage carriage to operate as a contract carriage. The learned counsel appearing for the respondents submitted that the law permits the issue of special permits to stage carriages to operate as contract carriages and as such the issue of special permit for the above purpose was in accordance with law and was within the competence of the authority. Sec. 66 of the Motor Vehicles Act says that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place except in accordance with the conditions of the permit granted or countersigned by the Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. The first proviso to sub-sec. (1) of Sec. 66 says:

Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage.

A reading of the above proviso to sub-sec (1) of sec. 66 of the Motor Vehicles Act would reveal that the stage carriage permit itself can authorise the use of the vehicle as a contract carriage subject to the conditions specified in the permit. Sec. 72 deals with the grant and issue of stage carriage A conjoint consideration of all the above provisions in the Act and the Rules would show that a special permit can be issued to operate a stage carriage as a contract carriage within the region of the R.T.A granting the stage carriage permit. It would be relevant to consider Sec. 88(8) of the Motor Vehicles Act which deals with the issue of special permit to stage carriages as well as contract carriages for operation in another region i.e. within the jurisdiction or region of another RTA. Sub-Sec (8) of Sec. 88 stipulates that for the convenience of the public, special permits can be issued by the RTA for operation of a stage carriage as a contract carriage or a contract carriage outside the region i.e. within the jurisdiction of another RTA. Placing reliance on the above provision an argument was advanced by the learned counsel for the petitioners that the RTA had got authority or jurisdiction to grant a special permit to operate as stage carriage only within the jurisdiction of another RTA and it did not have the jurisdiction or authority to permit the use of the vehicle within its own region or jurisdiction as a contract carriage. The above argument cannot be accepted in view of the proviso to Sec. 66 coupled with Sec. 72(2) and the permit conditions. A Division Bench of this Court in W.A. 666/98 considered the question whether a special permit can be issued to a stage carriage to operate as contract carriage. There it was held:

The short question for consideration in this appeal is whether a stage carriage operator is entitled to a special permit. Section 72 of the Motor Vehicles Act relates to the grant of stage carriage permit. Section 88 subsection (8) of the Act beginning with a non-obstanti clause, provides that notwithstanding anything contained in sub-section (1), but subject to any rules that may be made under this Act by the Central Government, the Regional Transport Authority of any region, or, as the case may be, the State Transport Authority, may, for the convenience of the public, grant a special permit to any public service vehicle including any vehicle covered by a permit issued u/s 72. From the perusal of section 88(8), read with section 72, it is manifest that a stage carriage permit holder may be granted a special permit subject to the rules framed under the Act. This legal position is not disputed by the learned Government Pleader.

Thus the Act and the Rules contemplate the issue of special permit to stage carriages to operate as contract carriages.

The next question for consideration is whether special permits for operation of stage carriages as contract carriages can be issued in a routine manner without any restrictions. Though it was held that the law would permit the grant of special permits to stage carriages to operate as contract carriages, the Division Bench in the above cited case had not considered regarding the limitations imposed by the Act as well as the Rules in the grant or issue of special permits. The grant or issue of special permit has to be only in certain circumstances and not in a routine manner. The Supreme Court in Achyut Shivram Gokhale Vs. Regional Transport Officer and Others, had held:

A special permit is ordinarily taken to meet a need that exists for a few days like carrying a marriage party or persons going on a pilgrimage etc.

There it was further held that the R.T.A. granting the special permit can insist the furnishing of names of the passengers to be carried-

It is open to the Regional Transport Authority if it wishes to do so to insist upon the furnishing of the names of passengers, who are proposed to be carried in a bus under the special permit for which an application is made so also a holder of a special permit cannot run his bus empty to another State to pick up passengers, who are not covered by the contract, there, to drop them in that State at the end of the journey and to return to his own State where he had obtained the special permit in an empty bus.

It would be relevant to consider Rule 152 of the Kerala Motor Vehicles Rules also which says:

Failure to use transport vehicle:- It shall be a condition of the permit of every transport vehicle (other than a private service vehicle permit) that the vehicle shall be so maintained as to be available for the service for which the permit was granted, for the entire period of currency of the permit and that the permit is liable to be suspended or cancelled, after due notice to the permit holder, if the vehicle has not been used for the purpose for which the permit was granted, for any day in the case of a stage carriage unless a reserve bus duly authorised in this behalf has conducted substitute service in the place of the route-bus which defaulted service, and for a continuous period for a continuous period of fifteen days or more in the case of other transport vehicles, during the period for which the permit authorises the use of the vehicle on the road, unless the State or regional transport authority is satisfied that the permit holder was prevented by sufficient cause from running the service or that the permit holder had obtained the previous permission of the State or Regional Transport Authority to suspend the service for such period during which the vehicle was not operated.

Rule 152 would reveal that the stage carriage operator has to keep the vehicle available in a fit condition for operating on the routes without any break of service and in accordance with the permit conditions. A conjoint consideration of the relevant provisions of the Act, Rules and permit conditions mentioned above would reveal that special permit to a stage carriage to operate as a contract carriage within the region is a condition in the permit itself. But when that being a condition in the permit, all the other conditions imposed under sec. 72(3) of the Act also should be complied with before the grant or issue of special permit. Clause (xvii) of sec. 72(3) of the Act says that a vehicle should be kept as reserve to maintain the operation and to provide for special occasions. The restrictions imposed as per the different clauses under sub-sec. (3) of sec 72 coupled with Rule 152 and the permit conditions would make it clear that the grant of special permit for operation of a stage carriage as a contract carriage can be made only without any break of the normal operation of a vehicle as a stage carriage in accordance with the regular permit. Though the Legislature contemplates the issue of special permits to stage carriages to operate as contract carriages, the restrictions imposed would indicate that such grant should be made only when there is a substitute vehicle to be operated on the route so that the regular service has to be maintained and a special permit cannot be granted avoiding the operation of the regular permit causing inconvenience to the travelling public who are regularly depending on the stage carriage. A conjoint consideration of all the above provisions would make it abundantly clear that the grant of a special permit should not prevent the regular operation of the stage carriage in accordance with the schedule of timings of regular permit. Thus it is obligatory on the part of the authority to see that the regular operation is not disturbed by the issue of the special permit.

Sec. 88(8) permits the issue of a special permit to operate within the region of another RTA without obtaining counter signature or prior concurrence. But Sec 88(8) says that the issue of special permit shall be

"subject to any rules that may be made under this Act by the Central Government". The learned counsel appearing for the petitioners submitted that so far the Central Government had not passed any rules regarding the issue of special permit under sec. 88(8) and as such no permit can be issued under sec. 88(8) of the Act. The learned Senior Standing Counsel for the Central Government submitted that the Central Government had not so far framed any rules under sec. 88(8) of the Act. The learned counsel appearing for the respondents submitted that the grant of a special permit under sec. 88(8) of the Act is not subject to the framing of any rules and even without framing of any rules special permits can be issued. He placed reliance on a decision of the Supreme Court in Surinder Singh Vs. Central Government and Others, wherein it was held:

Where a statute confers power on an authority to do certain Acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of Rules unless of the statute expressly provides for the same. In other words, framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression subject to the Rules only means, in accordance with the rules, if any. If rules are farmed, the powers so confirmed on authority could be exercised in accordance with the rules, if any. If rules are framed, the powers so confirmed on authority could be exercised in accordance with these rules. But if no rules are framed, there is no void and the authority is not precluded from exercising the power conferred by the statute.

The learned counsel for the respondents further argued that the state Government had already prescribed forms for filing applications for the grant of special permit and also the orders for the issue of special permits in accordance with the statute and the Rules and those forms also have to be considered in resolving the dispute. In the The Maharashtra State Road Transport Corporation Vs. Babu Goverdhan Regular Motor Service and Others, the Supreme Court held that the forms prescribed in accordance with the rules also can be considered. Hence special permits can be issued under sec. 88(8) of the Act though no rules have been framed by the Central Government as stipulated in sec. 88(8) of the Act Further, the State Government have prescribed application forms as well as permit forms in accordance with the provisions of the Statute for the issue of special permits also. Hence the issue of special permit under sec. 88(8) of the Act cannot be said to be illegal or invalid as the statute specifically authorise the issue of special permits to stage carriages to operate as contract carriages.

The learned counsel appearing for the respondents submitted that the circular issued by the Transport Commissioner prohibiting the issue of special permit to stage carriages for marriages purposes is against the spirit of the provisions of the statutes and as such it is illegal. When the statute allows the issue of special permits, though imposing several restrictions, any circular issued by the Transport Commissioner should be in accordance with the Rules and there cannot be an order prohibiting the issue of special permit in to. The Commissioner can issue circulars prescribing the guidelines for the issue of special permits, but the order imposing a total prohibition from issuing special permits is beyond the jurisdiction of the Transport Commissioner and is against the statutory provision and hence the above circular is liable to be quashed. As the Central Government has not framed any rules as stipulated in sec. 88(8) regarding the issue of special permits under sec. 88(8) of the Act, the Central Government has to frame the rules in accordance with sec. 88(8). In the result the circular issued by the Transport Commissioner prohibiting the issue of special permits to stage carriages to operate as contract carriages is hereby quashed. But the Transport Commissioner can issue guidelines for the grant of special permits in accordance with law on special occasions strictly in accordance with law on special occasions strictly in accordance with law and the rules. The Central Government has to frame the rules in accordance with sec. 88(8) of the Act without any further delay.

All the Original Petitions shall stand disposed of accordingly.