SUKUMAR K.K. Vs. REGIONAL TRANSPORT AUTHORITY, ERNAKULAM

JUDGEMENT

(1.) THE petitioner is aggrieved by the rejection of his application for the grant of four months temporary permit in the route Kaloor - Mattancherry and assails Ext. P1 order of the Secretary, Regional Transport Authority (for brevity "RTA"), as affirmed by Ext. P5 judgment of the State Transport Appellate Tribunal (for brevity "STAT), Ernakulam. The petitioner, the owner of a stage carriage, applied for the grant of temporary permit in the vacant timings of another stage carriage, which had abandoned service long back. The application was rejected by Ext. P1, for two reasons. Ext. P1 found that the total length of the route sought for by the petitioner is 26 Kms. and there is objectionable overlapping of 10 Kms., in the notified routes of Trivandrum - Palakkad and Trivandrum - Kannoor Schemes. The scheme is notified by virtue of GO(P) No. 42/2009/Trans. dated 14/07/2009; produced as Ext. R3(a) in the present writ petition. Further, Ext. P1 also found that to grant temporary permit there should be in existence a valid regular permit and the permit sought to be substituted having lapsed long before, the grant of temporary permit cannot be allowed. Ext. P5 upheld the said order.

(2.) THE learned counsel for the petitioner argues that the permits issued in the Ernakulam city area is as per a notification issued under Section 71(3) of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") and the fact that there is a vacancy in one of the regular permits would itself indicate that there is a need for operation in the said route. When the notification under Section 71(3) of the Act specifies the number of permits that could be granted in the city area; in this case, according to the petitioner 700 in number, then the same cannot be altered by a Scheme under Chapter VI of the Act. It is also contended that neither is there a notification brought out superseding or altering the earlier notification under Section 71(3); nor is it evident from Ext. R3(a) that the said notification intended to supersede the earlier notification under Section 71(3). The petitioner also contends that if Ext. R3(a) is to be considered to be a Scheme brought in, in supersession of the notification under Section 71(3), then there could be no private buses plying within the city area, since all of them are plying within the notified routes indicated in Ext. P1. In such circumstance, it is the contention based on the decision in M.P. SRT Corporation v. R.T. Authority : 1966 KHC 392 : AIR 1966 SC 156 : 1965 (3) SCR 786 that a temporary need co -exists with the permanent need. That is to say, when there is a regular permit, that contemplates the need for a service in the said route and in the event of a vacancy in the route caused by the non -operation of the permit, then necessarily it postulates a temporary need. Hence, the petitioner maintains that the application filed under Section 87 of the Act for a temporary permit has to be considered as an application under sub -clause (c) of sub -section (1) of Section 87 and the same was liable to be allowed.

(3.) THE entire case of the petitioner is built on the notification under Section 71(3), which, according to the petitioner, permits 700 regular permits in the city area of Ernakulam. Submissions are made to the effect that the notification prescribes the continuance of 700 regular permits within the city area, as a clear mandate. It is to be mentioned that the notification has not been produced. Even if, for argument sake, it is assumed that 700 stage carriages have been permitted to ply within the city area of Ernakulam, one has to look at the provisions under which the notification has been brought out, to understand as to whether there is a mandate as contended by the petitioner or not. Clause (iii) of subsection (1) of Section 71 confers power on the State Government to bring out a notification limiting the number of stage carriages operating in city routes, having regard to various factors, viz., number of vehicles, road conditions, etc. Sub -section (3) of Section 71 is in the nature of restriction of the number of stage carnages and definitely does not contemplate a mandate. The fact that 700 stage carriages have been specified as per the notification issued by the State Government, is only a restriction on the authority empowered to grant permits and does not indicate a mandate for issuance and continuance of such 700 permits. In the context of the same, the petitioner also cannot merely assume the presumption of a temporary need merely on there being a vacancy in one of the regular permits.