Dismissed

Sasikumar N., v. the Regional Transport Authority

Kerala HC22 Jul 2022WP(C)/12487/2022

Case brief

AI extract

What is this about?

The petitioner challenges a communication from the Secretary, RTA, directing him to change his stage carriage route. The Court held that the Secretary acted under delegated powers making the order revisable under Section 90 of the Motor Vehicles Act. Thus, the writ petition is dismissed without deciding merits. An alternative remedy exists.

What did the court decide?

Writ petition dismissed without expressing views on merits as alternative remedy via Section 90 revision exists.

Sasikumar N., Vs the Regional Transport Authority — Service and Employment | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

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FRIDAY, THE 22^ND DAY OF JULY 2022 / 31ST ASHADHA, 1944

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WP(C) NO. 12487 OF 2022

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PETITIONER:

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SASIKUMAR N., AGED 59 YEARS S/O. NARAYANA PILLAI, KURUNTHODATH HOUSE, MUTTATHIPARAMBU P. O., CHERTHALA, ALAPPUZHA – 688 527.

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BY ADV P.DEEPAK

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RESPONDENTS:

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1 THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM, REPRESENTED BY ITS SECRETARY, REGIONAL TRANSPORT OFFICE, ERNAKULAM – 673 020.

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2 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, ERNAKULAM, REGIONAL TRANSPORT OFFICE, ERNAKULAM – 673 020. 3 K. PRABHAKARAN, MULLASSERY HOUSE, KSRA-74, KAIRALI STREET, KALOOR, KOCHI – 682 017.

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SRI. K.V.GOPINATHAN NAIR SRI. JIMMY GEORGE - GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.12487 OF 2022

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JUDGMENT

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The petitioner is the owner of stage carriage bearing Registration No.KL-32-D 6660 and holds Ext.P1 regular permit to conduct service on the route Eloor-Cherthala. Ext.P1 permit was issued in the year 1996 and was being renewed from time to time and is valid till 14.08.2024. The route for which the permit is valid has been recorded in Ext.P1 as Eloor – Cherthala via Manjummal, Muttar, Edappally, Palarivattom, Kaloor, Vyttila, Kumbalam, Eramallor, Ezhupunna, Chavadi, Thuravoor and Kalavamkodam.

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According to the petitioner, consequent to the opening of Kaloor – Kadavanthara Road, Ext.P2 decision was taken by the 1^st respondent, the Regional Transport Authority (hereinafter referred to as 'RTA', for short) to re-route the stage carriages through the aforesaid road to avoid the congestion of the traffic in M.G Road and Chittoor Road. Clause (2)

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of Ext.P2 reads as under:-

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“(2) All the mofussil fast passenger and limited stop ordinary stage carriages coming from CHERTHALA, AROOR, KUMBALAM etc. will operate from VYTTILA to KALOOR BUS STAND and back via SAHODARAN AYYAPPAN ROAD, KADAVANTHARA and KALOORKADAVANTHARA ROAD.”

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The petitioner states that, by virtue of Clause 2 of Ext.P2 proceedings, he is operating through Kaloor – Kadavanthara Road for more than seventeen years. While so, after more than 17 years of issuance of Ext.P2, the Secretary, RTA, the 2^nd respondent has issued Ext.P3 communication requiring the petitioner to operate his stage carriage via M.G Road and Chittoor Road, contrary to Ext.P2 decision of the RTA. The petitioner points out that Ext.P3 communication has been issued pursuant to Ext.P4 judgment of this Court wherein this Court had directed the Secretary, RTA to dispose of a complaint filed by the 3^rd respondent, another stage carriage

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WP(C).No.12487 OF 2022

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permit holder, who alleged that the petitioner is plying through Kaloor- Kathrikadavu road without valid permit. The petitioner submits that Ext.P3 decision has been taken by the Secretary, RTA on an erroneous interpretation of Clause (5) of Ext.P2 proceedings which reads as under:-

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“(5) All the mofussil stage carriage services operating via VYTTILA, SAHODARAN AYYAPPAN ROAD, M.G. ROAD/BOAT JETTY and beyond KALOOR towards eastern side like KAKKANAD, COCHIN UNIVERSITY etc. via PALARIVATTOM and northern side like PUTHUKALAVATTOM, PONEKKARA, ELAMAKKARA etc. and back will operate via M.G ROAD/CHITTOOR ROAD.”

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According to the petitioner, the service operated by him is a 'Limited Stop Ordinary Service' (LSOS) and is governed by Clause (2) of Ext.P2; whereas Clause (5) applies to mofussil stage carriages with totally different line of travel. The petitioner contends that Ext.P2 decision is one

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rendered by the RTA and the 2^nd respondent who is only the Executive Officer of the 1^st respondent and enjoined merely to give effect to Ext.P2 decision cannot place contrary construction on the same without the junction of the RTA.

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The 3^rd respondent entered appearance and filed counter affidavit. According to the 3^rd respondent, it is Clause (5) of Ext.P2 that is relevant so far as the service of the petitioner is concerned and Ext.P3 decision of the 2^nd respondent does not suffer from any error of law or error of facts which requires interference by this Court. The 3^rd respondent also submits that Ext.P3 decision has been taken pursuant to Ext.P4 judgment of this Court after hearing the petitioner.

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Heard Sri.P. Deepak, the learned counsel for the petitioner, Sri.K.V. Gopinathan Nair, the learned counsel for the 3^rd respondent and Sri.Jimmy George,

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the learned Government Pleader for respondents 1

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and 2.

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The learned counsel for the 3^rd respondent as well the learned Government Pleader raised a preliminary objection as to the maintainability of the writ petition in view of the alternative remedy of revision before the State Transport Appellate Tribunal under Section 90 of the Motor Vehicles Act, 1988 (‘the Act', for short).

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The learned counsel for the 3^rd respondent would contend that, based on the complaint submitted by the 3^rd respondent regarding violation of route by the petitioner's stage carriage and pursuant to the direction of this Court in Ext.P4 judgment, the Secretary, RTA, after hearing the petitioner, issued Ext.P3 directing the petitioner to operate his service strictly in accordance with the conditions of permit and if the petitioner is aggrieved by Ext.P3 decision, his remedy is to file Revision Petition under Section 90 of the Act. The learned

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counsel refers to Section 72 (2) (i) of the Act which provides that vehicles shall be used only in a specified area, or on a specified route or routes and the petitioner was operating his stage carriage in violation of permitted route and by Ext.P3, the 2^nd respondent directed the petitioner to conduct service as per the conditions of permit.

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The learned counsel for the petitioner, on the other hand, would contend that Ext.P3 is not an order passed by the State Transport Authority or the Regional Transport Authority and therefore no revision would lie under Section 90. It is also contended that Ext.P3 is in the nature of a communication and only an order made by the State Transport Authority or the Regional Transport Authority against which no appeal lies can be challenged in Revision before the State Transport Appellate Tribunal.

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Sri.Jimmy George, the learned Government

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WP(C).No.12487 OF 2022

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Pleader took me through the provisions of the Act and the Kerala Motor Vehicles Rules, 1989 (hereinafter referred to as 'Rules', for short). Section 68 of the Act deals with Transport Authorities and sub-section (1) thereof reads as follows:-

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“68. Transport Authorities.—(1) 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 (in this Chapter referred to as regions) as may be specified in the notification, in respect of each Regional Transport Authority; the powers and functions conferred by or under this Chapter on such Authorities:”

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Sub section (5) of Section 68 deals with delegation of powers under Section 68 and reads as

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follows:-

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(5) The State Transport Authority and any Regional Transport Authority, if authorised in this behalf by

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rules made under section 96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitations and conditions as may be prescribed by the said rules.

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Rule 133 of the Rules deals with delegation

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of powers of RTA to the Secretary and Rule 133 (1)

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reads as follows:

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Rule 133. Power of Regional Transport

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‐ 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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(a) power under Sections 71 and 72 of the Act to grant but not to refuse a stage carriage permit when the number of stage carriages are not fixed under ‐ clause (a) of sub section (3) of Section 71 of the Act; (b) power to attach to a stage carriage permit ‐ conditions under sub section (2) Section 72 of the Act or any prescribed conditions;

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of contract carriages are not fixed under clause (a) of

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WP(C).No.12487 OF 2022

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‐ sub section (3) of Section 74 of the Act and power ‐ under sub section (2) of Section 74 of the Act to attach conditions to a contract carriage permit;

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(d) power under Section 76 of the Act to grant or refuse a private service vehicle permit and power ‐ under sub section (3) of Section 76 of the Act to attach conditions to such permits;

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(e) power under Sections 78 and 79 of the Act to grant or refuse a goods carriage permit and power under ‐ sub section (2) of Section 79 of the Act to attach conditions to a goods carriage permit;

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(f) power to entertain a belated application for renewal ‐ of permit under sub section (3) of Section 81;

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(g) power to renew or refuse to renew a permit under Section 81 of the Act and power to countersign or refuse to countersign a permit under Section 88 of the Act:

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Provided however that this power does not extend to refusing either to renew or to countersign a stage carriage permit.

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(h) power under sub section (1) of Section 82 of the Act to transfer or refuse to transfer a permit save in

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the case of stage carriages and power under sub‐ section (3) of Section 82 of the Act in respect of all

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WP(C).No.12487 OF 2022

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vehicles on the death of a permit holder;

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(i) power under Section 83 of the Act to allow replacement of one vehicle by another;

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

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(k) power to refuse to entertain applications for grant or renewal of permits and for grant of counter‐ signature of permits when such applications are not in accordance with the provisions of the Act and of the rules made thereunder or are inadmissible under any orders passed by the State or Regional Transport Authority in exercise of their powers under the Act;

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(l) power under Section 103 of the Act to grant permits to the State Transport Undertakings;

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(m) power to grant temporary permit under sub‐ section (7) of Section 88 of the Act;

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(n) power to grant special permit under sub section

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(8) of Section 88 of the Act;

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[(na) power to grant national permit in respect of ‐

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goods carriages under sub section (12) of Section 88 of the Act and authorisation for such permit;]

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(o) power under Section 86 of the Act to suspend a ‐ permit, power under sub section (4) of Section 88 of the Act read with Section 86 of the Act to suspend

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‐ ‐ counter signature of permits and power under sub section (5) of Section 86 of the Act to recover from the holder of the permit a sum of money agreed upon to pay, in lieu of suspension of permit or suspension of ‐ counter signature of permit;

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(p) power to vary the conditions of the permit ‐ specified under sub section (3) of Section 80 of the Act;

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(q) power to fix the number of standing passengers the vehicle may be permitted to carry, or the permit holder may be required to carry, in any public service ‐ vehicle other than a motor cab under sub rule (2) of Rule 267;

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(r) power to approve fare table with or without modification in respect of a stage carriage.

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(s) power to grant permission for advertisement or writing on vehicles under Rule 191.]

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Section 72 of the Act deals with grant of

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state carriage permit and Section 72 (1) and (2)

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reads as follows:-

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“72. Grant of stage carriage permits.—(1) Subject to the provisions of section 71, a Regional Transport Authority may, on an application made to it under

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section 70, 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:

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Provided that no such permit shall be granted in respect of any route or area not specified in the application.

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(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-

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(i) that the vehicles shall be used only in a specified area, or on a specified route or routes;”

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The learned Government Pleader has

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handed over to me the proceedings of the RTA, Ernakulam dated 18.09.2019 whereby the powers of the RTA, Ernakulam under Rule 133(1) except clauses (p), (q) and (r) have been delegated to the Secretary, RTA, Ernakulam and duly published under

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Rule 134. It is submitted by the learned Government

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Pleader that Ext.P3 has been issued by the 2^nd respondent in exercise of the delegated powers under Rule 133 and no appeal lies against the said order, but is revisable under Section 90 of the Act.

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Ext.P3 is in the nature of a communication addressed by the 2^nd respondent wherein the petitioner has been directed to adhere to Ext.P2 proceedings of the RTA by conducting service towards Cherthala from Kaloor via Chittoor road. The 2^nd respondent has, in Ext.P3, found that the petitioner is conducting service not on the specified route. The petitioner was directed to conduct service towards Cherthala from Kaloor via Chittoor road as per permit and Ext.P2 proceedings and is informed that any violation in the permitted route will attract punishment. Even going by the averments in the writ petition, the petitioner states that, Ext.P3 is a 'decision' taken on an erroneous construction placed on Ext.P2. It is to be noted that Ext.P3 is an order

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passed pursuant to Ext.P4 judgment of this Court by the Secretary, RTA in exercise of the powers delegated to him under Rule 133 (1) and the order

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passed by the Secretary, RTA in pursuance of the delegation would tantamount to an order of the RTA capable of being revised under Section 90 of the Act. Therefore, without expressing any views on the merits of Ext.P3 and without prejudice to the right of the petitioner to challenge Ext.P3 before the State Transport Appellate Tribunal in revision, this writ petition is dismissed.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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SPR

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WP(C).No.12487 OF 2022

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1 A TRUE COPY OF THE REGULAR PERMIT ISSUED TO THE PETITIONER VALID TILL 14/08/2024. EXHIBIT P2 A TRUE COPY OF THE DECISION OF THE FIRST RESPONDENT DATED 28/04/2005. EXHIBIT P3 A TRUE COPY OF THE COMMUNICATION DATED 17/03/2022 OF THE SECOND RESPONDENT (V3/KL-32/D-6660/2020/E). EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 21/06/2021 IN WPC NO.1005/2021. EXHIBIT P5 A TRUE COPY OF DECISION OF THE 1ST RESPONDENT DATED 07/09/2011.

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RESPONDENTS EXHIBITS:-

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EXHIBIT R3(a) TRUE COPY OF THE OBJECTION FILED BY THE 3RD RESPONDENT DATED 03.03.2021.

Sasikumar N., v. the Regional Transport Authority

Case brief

What is this about?

What did the court decide?

Sasikumar N., v. the Regional Transport Authority

Case brief

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