K V SEBASTIAN Vs. R T A KOTTAYAM

JUDGEMENT

(1.) THIS Original Petition is to quash Ext. P2 order of the Regional Transport Authority, Kottayam granting a temporary permit to the 2nd respondent for running a stage carriage on the route Malike-St. Dominic's college. The 1st petitioner is an operator on the basis of a pucca permit on the route Ponkunnam-Erattupetta overlapping 16 ms. on the route in respect of which the temporary permit is granted to the 2nd respondent. The 1st respondent had invited applications for the issue of a pucca permit on the route malike-St. Dominic's College. The 2nd petitioner as well as the 2nd respondent had submitted applications for the grant of pucca permit on the said route. Pending those applications, the 1st respondent has issued a temporary permit to the 2nd respondent on the same route. The first proviso to S. 62 (f)of the Motor Vehicles Act contains an absolute prohibition against the grant of temporary permits in respect of a route with respect to which applications for the grant of a pucca permit under S. 46 are pending. Ext. P2 order of the 1st respondent granting a temporary permit during the pendency of valid applications for the issue of a pucca permit is clearly opposed to S. 62 of the motor Vehicles Act. Learned counsel for the 2nd respondent points out that there had been earlier instances of such grant by the 1st respondent to the 2nd respondent and there had been no objection by the petitioners on those occasions. He relies on Exts. R2 (a) and R2 (b) in support of his contention that the 2nd respondent had been granted temporary permits on earlier occasions. It is however conceded by the learned counsel for the 2nd respondent that at the time when Exts. R2 (a) and R2 (b) temporary permits were granted, there were no applications for a pucca permit pending before the Regional Transport Authority. The grants under exts. R2 (a) and R2 (b) are therefore perfectly legal and cannot be relied on in support of Ext. P2 which I find is opposed to s. 62 of the Act. THIS Court in the decision is Ramachandran v. R. T. A. , cannannore, (1977 KLT. 262) has clearly stated that as per the first proviso to S. 62 (1) of the Act no temporary permit can be granted if an application for the grant of a pucca permit under S. 46 on the very same route is pending even in cases where there is a temporary need over and above the permanent need. The 1st petitioner who is operating for about 16 kms. on the same route is a person competent to object to the grant of Ext. R2 temporary permit to the 2nd respondent is clear from the decision in P. K. Transport, Calicut v. Calicut-Wynad Motor Service (P) Ltd. (1967 KLT. 650 ). Learned counsel for the 2nd respondent relies on an unreported decision of this Court in O. P. No. 2958 of 1953 wherein M. P. Menon, J. on the finding that the temporary permit issued was opposed to S. 62 of the Act quashed the same and even after quashing, permitted the grantee to operate on the route for the reason that there was already an order in his favour for the grant of a pucca permit. THIS decision was followed by Paripoornan, J. in O. P. No. 5988 of 1983. The mere fact that on the peculiar facts of these cases this Court allowed the grantees to operate even after the quashing of the permit in their favour does not persuade me to accept the request of the learned counsel for the 2nd respondent that he should be allowed to operate even without a permit until after the 1st respondent, R. T. A. decides as to the entitlement of his client for the issue of a pucca permit. In O. P. No. 7202 of 1983 this Court after quashing the temporary permit granted in violation of S. 62 of the Act permitted the grantee to operate on the route for a period of 30 days pending decision on the question of his entitlement for the grant of a pucca permit. These precedents should be confined to the facts of the cases dealt with and do not persuade me to give a direction that inspite of the quashing of the order granting the permit, the 2nd respondent should be allowed to operate on the route even without a permit.

(2.) IT is next contended that the petitioner has an alternative remedy of appeal under clause (f) of S. 64 (i) of the Motor Vehicles act. When on the facts admitted I find there is a clear violation of the statutory provision in S. 62 of the Act, the alternative remedy of an appeal will not be a ground to decline relief to the petitioner to enable the 2nd respondent to take advantage of the impugned order passed in violation of the statute. I allow this Original Petition and quash Ext. P2. The parties will suffer their respective costs. . .