Cannanore District Bus Operators Association and Others v. State of Kerala and Others (WA No.993 of 2017)

C.R. IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 15TH DAY OF JUNE 2017/25TH JYAISHTA, 1939 WA. No.993 of 2017 () ----------------------------(AGAINST THE JUDGMENT DATED 28-03-2017 IN WP(C) 9361/2017) ## APPELLANTS/PETITIONERS: ------------------------------------- 1. CANNANORE DISTRICT BUS OPERATORS ASSOCIATION MANORAMA JUNCTION, VALIYAVALAPU KAVU ROAD, KANNUR- 670 002, REP. BY ITS SECRETARY RAJKUMAR KARUVARATH, AGED 59 YEARS, S/O. KUMARAN, SEENAS, T.CHOVVA P.O., KANNUR- 670 018 2. THALASSERY PRIVATE BUS OPERATORS ASSOCIATION, ACHOOTY ARCADE, NARANGA PURAM, THALASSERY- 670 101, REP. BY ITS GENERAL SECRETARY K. GANGADHARAN, AGED 67 YEARS, S/O. MANNAN, GIREESH VILLA, VENGAD P.O., KANNUR- 670 612. 3. P.RAJAN, AGED 60 YEARS, S/O. CHANDUKUTTTY NAIR, PARAMMEL HOUSE, ANCHARAKANDY P.O., MURUNGELI, KANNUR- 670 612. 4. SEENA PUNNAKKAL, AGED 52 YEARS, D/O. JAYARAM, SEENAS, T.CHOVVA P.O., KANNUR- 670 018. BY ADVS.SRI.P.B.SAHASRANAMAN SRI.RAAJESH S.SUBRAHMANIAN ## RESPONDENTS/RESPONDENTS: ------------------------------------------- 1. STATE OF KERALA, - REP. BY ITS TRANSPORT SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM- 696 001. 2. DEPUTY TRANSPORT COMMISSIONER, NORTH ZONE, KOZHIKODE- 673 501. 3. REGIONAL TRANSPORT AUTHORITY, REPRESENTED BY ITS SECRETARY, KANNUR- 670 001. ...2/- WA. No.993 of 2017 () :2: 4. REGIONAL TRANSPORT OFFICER, OFFICE OF THE RTO, KANNUR- 670 001. ## ADDITIONAL RESPONDENT IS IMPLEADED: 5. JIJITH, S/O. NAMHRAN, RAM NIVAS, THOODEEKALAM, KANNAVAM-670 001. - (ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 15.06.2017 IN I.A. NO.666 OF 2017.) ## R5 BY ADV. SRI.I.DINESH MENON AS DIRECTED BY THE COURT R1 TO R4 BY SPECIAL GOVERNMENT PLEADER MR. P. SANTHOSH KUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **'C.R.'** # **NAVANITI PRASAD SINGH, C.J. & RAJA VIJAYARAGHAVAN V., J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No.993 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of June, 2017 ## **JUDGMENT** ## Navaniti Prasad Singh, C.J. Aggrieved by the judgment of the learned Single Judge dated 28.03.2017 in W.P(C) No.9361 of 2017, refusing to interfere in the matter, this appeal has been filed by the writ petitioners. Pursuant to the orders of this Court an impleading petition was filed. The private respondent was noticed and he was also heard. We have heard the learned Special Government Pleader Mr.P.Santhosh Kumar as well. With consent of parties, we are disposing of this appeal at this stage itself. 2. The dispute appears to be quite innocuous at the first look, but has much larger ramification if looked closely. It appears that the private respondent had made an application for grant of permanent permit of a stage carriage for a particular route to the Regional Transport Authority in terms of Section 80 of the Motor Vehicles Act, 1980 (for short, the 'Act'). While that application was pending consideration of the statutory authority, he made an **-:2:-** WA.993/17 application before the Secretary of the Regional Transport Authority for grant of temporary permit for the same route on the ground that having made an application for permanent permit, till permanent permit is not granted, temporary permit may be issued. This not having been done, he moved this Court by filing W.P.(C) No.37585 of 2016 which was disposed of by judgment dated 24.11.2016. We would quote some parts of the judgment in the said writ petition. “The grievance of the petitioner in the writ petition concerns the inaction on the part of the respondent in granting the temporary permit sought by him.” “Since the application preferred by the petitioner for grant of a regular permit on the very same route and timings is pending, I deem it appropriate to dispose of the writ petition directing the respondent to consider Ext.P1 application and grant the temporary permit sought by the petitioner, if there is no impediment for the same. This shall be done within two weeks from today.” 3. Consequent to the above observations and directions, the private respondent was granted temporary permit pending consideration of grant of permanent permit. The Association of Bus Operators of the area, as also some individuals, then noticed that **-:3:-** WA.993/17 taking advantage of the above observations of this Court, several persons have started preferring applications for permanent permits and then apply for temporary permits which were being granted. This was not the legislative intent, for the authority to grant temporary permits, as contained in Section 87 of the Act. The allegation thus is that the order is being unscrupulously used to violate the law with impunity. It is with that object and to seek clarification of this Court, the appellants have filed W.P.(C) No.9361 of 2017, which was dismissed by judgment and order dated 28.03.2017 wherein, noticing that the private respondent's permit has been cancelled, the court was not inclined to interfere, even though it was informed that cancellation had been stayed by the Appellate Tribunal. It is being aggrieved by the said judgment, this appeal has been preferred. 4. On behalf of the private respondent, strong reliance has been placed on the judgment of the Apex Court in **Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal (M.P.)** v. **B. P. Upadhyaya, Regional Transport Authority, Raipur and Others** [AIR 1966 SC 156]. It is submitted that the Apex Court in clear terms held that pending grant of **-:4:-** WA.993/17 permanent permit, an applicant could be considered for grant of temporary permit and that being so, there was nothing wrong in the judgment passed by the learned Single Judge. 5. We have perused the judgment of the Apex Court and are unable to agree with the proposition as can be broadly stated as above. Mere application for a permanent permit will not entitle a person to apply for a temporary permit, much less demand the same. This is what exactly the private respondent did, as would be apparent from the first order passed by the learned Single Judge in this case. He came to this Court making a grievance that as he has made an application for permanent permit, the authorities be directed to grant him temporary permit pending consideration of grant of permanent permit and the court issued directions as quoted above. In our view, the judgment of the Apex Court has to be read as a whole. It does not say that _de hors_ the provisions of Section 66 (now Section 87 under the new Act), temporary permit can be granted. It points out the fact that the application made for grant of permanent permit shows that there is a necessity and that being so, if other conditions specified under Section 66 (now Section 87) of the Act are satisfied, temporary permit can be granted. The **-:5:-** WA.993/17 judgment cannot be extended to laying down a proposition that whenever an application for permanent permit is made, the applicant gets a right to get temporary permit. That would be destructive of the entire statutory scheme. Section 87 of the Act clearly lays down the contingencies under which a temporary permit can be granted. 6. If we refer to Section 87(1)(d) of the Act, it clearly talks of grant of temporary permit pending application for renewal of permit. But, nowhere the section provides that where a person has made an application for permanent permit, pending grant thereof, temporary permit can be granted. The reason is obvious. Temporary permit cannot be an indirect route to get a permanent permit. Temporary permit can only be considered for grant on conditions as specified in Section 87 of the Act and not more. 7. We would like to observe one thing here as well. When the private respondent has made an application for permanent permit and there was delay in considering the same, he could have approached this Court, if at all, for a mandamus to the authorities to dispose of his application expeditiously or within a fixed time WA.993/17 ## **-:6:-** limit. He did not make any such prayer. Rather he made an application in the interregnum for temporary permit and sought a mandamus for grant of temporary permit, instead of grant of permanent permit. This fact is noted in the order quoted above. This clearly shows that this was mere abuse of process and not sanctified by Section 87 of the Act. It was circumventing the restrictions put by law. 8. We must remember that it is well established principle of law that if a statute provides a manner of exercise of power, then the power and authority has to be exercised in that manner and all other modes are impliedly prohibited - see **Hukum Chand Shyam Lal** v. **Union of India and others** (AIR 1976 SC 789). The relevant portion reads thus: “It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performances are necessarily forbidden.” 9. Thus seen, we clarify that merely because an application for permanent permit (not renewal) is pending consideration, **-:7:-** WA.993/17 temporary permit cannot be granted. For grant of temporary permit, the authorities are required to consider the conditions as stipulated in Section 87 of the Act and only if one or the other of those conditions is satisfied, then for a limited period as stipulated in the said section, temporary permit can be granted. With the above direction and observation, this appeal stands disposed of. Let a copy of this judgment be sent to the State Transport Commissioner for being communicated to all relevant authorities for guidance. Sd/Navaniti Prasad Singh, Chief Justice Sd/- Raja Vijayaraghavan V., Judge krj.16/6 /TRUE COPY/ P.A. TO JUDGE