Jaison C.P. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944** ## **WP(C) NO. 18718 OF 2022** ## **PETITIONER:** MR. JAISON C.P., AGED 43 YEARS S/O. PAULOSE, RESIDING AT CHUNDAPARAMBIL HOUSE, THUMBOOR P.O., THRISSUR - 680662. BY ADVS. SRI. P.DEEPAK SMT. NAZRIN BANU ## **RESPONDENTS:** - 1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695001. - 2 THE SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. - 3 TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, VAZHUTHACAUD, THIRUVANANTHAPURAM -695014. - 4 THE MINISTRY OF ROAD TRANSPORT & HIGHWAYS, GOVERNMENT OF INDIA, TRANSPORT BHAVAN, PARLIAMENT STREET, NEW DELHI-110001. R1 TO R3 BY ADV. SRI. K.R.RANJITH, GP R4 BY ADV. SRI. MANU S., ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C): 18718/2022 **“C.R”** :: 2 :: ## **JUDGMENT** Dated this the 9[th] day of June, 2022 ## **S. MANIKUMAR, CJ** Claiming to be the General Secretary of Thrissur District Committee, Kerala Taurus Tipper Association, an association registered under the provisions of the Travancore – Cochin (Literary, Scientific & Charitable Societies) Registration Act, 1955, petitioner herein has filed the instant public interest writ petition, for the following reliefs: - (i) Issue a writ in the nature of mandamus or such other writ, order or direction commanding the 1[st] respondent - State of Kerala, to comply with Exhibit P2 letter issued by the Ministry of Road Transport and Highways, Government of India (MORTH) dated 6.9.2021 and take proactive measures to remove State Border Check Posts of the MVD with immediate effect. - (ii) Issue a writ in the nature of mandamus or such other writ, order or direction commanding the 3[rd] respondent - Transport Commissioner, to transfer all the officers of the Motor Vehicles Department deployed at the border check posts to road safety enforcement squads of the Motor Vehicles Department. - (iii) Issue a writ in the nature of certiorari or such other writ, order or direction calling for the records leading to Exhibit P1 Circular dated 16.06.2021 and quash the same to the extent it mandates the physical verification of permits or tax receipts obtained after the online remittance of tax and fees. 2. Earlier, petitioner approached this Court highlighting the practices followed by the Motor Vehicles Department _vis-a-vis_ operators WP(C): 18718/2022 :: 3 :: of transport vehicles. Here, he seeks to recall the continued functioning of the border check posts manned by the personnel of MVD, merely as a source of illegal gratification notwithstanding the substantive amendments made to the Motor Vehicles Act, 1988 and also the introduction of GST regime making redundant the continuation of such check posts. 3. Petitioner has submitted that there are 19 border check posts headed by Motor Vehicles Inspectors, established and functioning under the Motor Vehicles Department, within the State of Kerala. Petitioner has also brought to our attention Exhibit-P1 Circular No.12/2021 dated 16.06.2021 issued by the 3[rd] respondent/Transport Commissioner, and submitted that w.e.f 21.06.2021, the services of all the border check posts under the Motor Vehicles Department, Kerala would be connected to Parivahan Software System and will be made available online. 4. It is also submitted that as per Exhibit-P1 circular, an applicant has to apply online through the 'Check Post Module' on the VAHAN portal and pay tax/permit fees/cess/green tax etc., through online. Exhibit-P1 also mandats that the permit/tax receipts obtained after such payment should be printed and submitted for physical verification at the border check posts. WP(C): 18718/2022 :: 4 :: 5. Inviting the attention of this Court to the orders bearing No.A4/59/2021-TC and A3/73/2021-TC dated 27.09.2021, petitioner has submitted that the Transport Commissioner-3[rd] respondent has authorised the posting of 22 Motor Vehicle Inspectors and 70 Assistant Motor Vehicle Inspectors at the 19 border check posts under the MVD. In fact, on 6.9.2021, MoRTH, Government of India, had communicated a letter (Exhibit-P2) to the Principal Secretaries (Transport) of some States, including the 2[nd] respondent, directing removal of check posts at the State borders. Petitioner has contended that despite the issuance of Exhibit-P2, the border check posts under the MVD continue to operate even today, within the State of Kerala. 6. Petitioner has contended that even after issuance of Exhibit-P2 letter, by G.O.(Rt.) No.33/2021/Trans dated 09.11.2021, the 3[rd] respondent – Transport Commissioner, ordered inclusion of willing officers from the Enforcement Wing under RTO (Enforcement) for check post duty, citing scarcity of eligible officers to be deputed, as most of the MVIs and AMVIs are facing disciplinary proceedings, and recommended not to be posted at the check posts. 7. Petitioner has also contended that from 26.08.2020 onwards, Government have issued 'E-POS' machines to the enforcement officers of WP(C): 18718/2022 :: 5 :: MVD. They can, therefore, check all the data and validity of documents of a vehicle with the aid of the E-POS machines. Further, the MVD has introduced E-Seva Kendras near all the Regional Transport Offices and Sub-Regional Transport Offices with the help of Kudumbasree Mission, to facilitate online services to the general public. The department can introduce E-Seva Kendras even in the State borders to facilitate online service in the portal of Vahan Check Post. 8. Petitioner has further contended that under the present circumstances, requiring vehicles to be stopped for physical inspection, is a redundant exercise and would allow the officers and personnel stationed at these check posts to make unlawful gains. 9. Main concern raised by the petitioner is with regard to the rampant corruption prevalent at the border check posts under the MVD, and hence, sought for interference of this court. Another apprehension is that the mandate for physical inspection in Exhibit-P1 Circular dated 16.06.2021 that provides for conversion of services of the check post into online mode, defeats the very objective and purposes of higher transparency, security, convenience, time, and speed efficiency, and also goes against the movement towards faceless and digital transactions spearheaded by the Government of India nationwide. WP(C): 18718/2022 :: 6 :: 10. Heard learned counsel for the parties and perused the material available on record. ## 11. Exhibit-P1 is the Circular No.12/2021 dated 16.06.2021 issued by the Additional D.G.P & Transport Commissioner, Transport Commissuionerate, Kerala, and it reads as under: “No. SSG11250120201/TC Transport Commissionerate, Kerala 2[nd] Floor, Trans Towers, Vazhuthakkaadu, Thriuvananthapuram-14 Phone 0471-2333337/2333317 Fax: 0471-23333141 www.mvd.kerala.gov_in [e-mail- tcoffice@keralamvd.gov.in] Date:16/06/2021 ## **CIRCULAR No:12/2021** Sub:- Motor Vehicles Department-Services of all border check pasts under Motor vehicles Department changed to online mode-Regarding Ref:- Online system of services of all border check posts under Motor Vehicles Department, integrated with Parivahan software system is coming into existence from 21/06/2021 onwards. The Applicant have to pay tax/permit fee/SEZ /green tax etc., through online by submitting online mode application through check post module in Vahan portal. The print out of the permit/tax receipt shall be printed and submitted for inspection on each check post through which the vehicle passes. If the Inspection officer gets convinced that there is a difference in the tax paid, tax shall be received using difference of tax module. Applications of vehicles of non-Vahan States have to be submitted through online mode. The officer has to record the details of vehicles passing through the check post in Movement-entry/exit. The details of amount received in check posts are available in the Day end statement of Report Module. Chelan can be prepared through e-Tressury system. Upon finding out any discrepancies in the vehicles, further proceedings shall be taken by preparing Chelan using E-chelan. M.R. Ajithkumar, IPS Additional D.G.P & Transport Commissioner.” WP(C): 18718/2022 :: 7 :: 12. Exhibit-P2 is the letter dated 6.9.2021 issued by the Under Secretary to the Government of India, Ministry of Road Transport & Highways (Transport Section), New Delhi, to the Principal Secretary (Transport) of State Governments of Maharashtra, Madhya Pradesh, WB, Bihar, Kerala, Telangana, Andhra Pradesh, Puducherry, Goa, Uttrakhand, Chattisgarh and Rajasthan, wherein it was stated as under: “Sir, I am directed to say that after introduction of GST in July 2017, there is no need for having the regular transport check posts at the State Boarders. The online data in respect of vehicles and drivers has been strengthened through VAHAN and SARATHI platforms. 2. Accordingly, majority of the States/UTs the Transport check posts have been abolished. 3. It is, therefore, requested that the present status regarding removal of check posts at State Borders may kindly be intimated to the Ministry at the earliest. Yours faithfully, **==> picture [25 x 13] intentionally omitted <==** Under Secretary to the Govt. of India” 13. Border Check Posts are the exclusive establishments of Commercial Taxes. Protecting our borders from the illegal movement of weapons, drugs, contraband, and people, while promoting lawful entry and exit, is essential for homeland security, economic prosperity, and national sovereignty. WP(C): 18718/2022 :: 8 :: 14. Perusal of the material on record makes it clear that the issue involved in this writ petition is a matter which is under consideration of the Government. In **Rama v. The Muthuramalingam Deputy Superintendent of Police, Tiruvarur District,** reported in 2004 (5) CTC 554, a Hon'ble Division Bench of the Madras High Court, while explaining the scope of judicial review on administrative action, held as under: “11. This Court should not ordinarily interfere in administrative matters, since the administrative authorities are specialists in matters relating to the administration. The Court does not have the expertise in such matters, and ordinarily should leave such matters to the discretion of the administrative authorities. It is only in rare and exceptional cases, where the Wednesbury Principle applies, that the Court should interfere, vide **Tata Cellular v. Union of India** , [(1994) 6 SCC 651]; **Om Kumar v. Union of India** , [(2001) 2 SCC 386], etc. 12. **In Haryana Financial Corporation and another v. Mis Jagdamba Oil Mills and Another** , 2002 (1) CTC 503, the Hon'ble Supreme Court observed: "If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known that more than one choice is available to the administrative authorities. They have a certain amount of discretion available to them. They have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to WP(C): 18718/2022 :: 9 :: which is to be preferred, (per **Lord Diplock in Secretary of State for Education and Science v. Metropolitan Borough Counsel of Tameside** , 1977 AC 1014). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, the Court can intervene. To quote the classic passage from the judgment of Lord **Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation** , 1947 (2) ALL ER 680: "It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably.' Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.” 13. In **Tata Cellular v. Union of India** , AIR 1996 SC 11, (vide paragraph 113), the Hon'ble Supreme Court observed as under: “(1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal over administrative decisions but merely reviews the manner in which the decision was made. WP(C): 18718/2022 :: 10 :: (3) The Court does not have the expertise to correct an administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. In the same decision the Supreme Court observed that judicial review is concerned with reviewing not the merits of the decision but the decision making process (the Wednesbury principle). See also Pramod Kumar Misra v. Indian Oil Corporation, 2002 (4) AWC 3221, State of Kerala v. Joseph Antony, 1994 (1) SCC 301, etc. ## 14. As **Lord Denning** observed: "This power to overturn executive decisions must be exercised very carefully, because you have got to remember that the executive and the local authorities have their very own responsibilities and they have the right to make decisions. The Courts should be very wary about interfering and only interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise you would get a conflict between the Courts and the Government and the authorities, which would be most undesirable. The Courts must act very warily in this matter. (See 'Judging the World' by Garry Sturgess and Philip Chubb).” ## xxxxxxxxxxxxx 33. It must never be forgotten that the administrative authorities have wide experience in administrative matters. No Court should therefore strike down an administrative decision solely because it is perceived by it to be unwise. A Judge cannot act on the belief that he knows better than the executive on administrative matters, because he can never be justifiably certain that he is right. Judicial humility WP(C): 18718/2022 :: 11 :: should therefore prevail over judicial activism in this respect.” In the light of the discussion and decisions, we are not inclined to interfere with the matter. Appeal fails and accordingly, it is dismissed. Sd/- **S.MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P. CHALY JUDGE** jes & krj WP(C): 18718/2022 :: 12 :: ## **APPENDIX** ## PETITIONER EXHIBITS:- - P1 COPY OF THE CIRCULAR NO. 12/2021 DATED 16.06.2021 WITH ITS TRUE ENGLISH TRANSLATION. - P2 COPY OF THE LETTER FROM MORTH DATED 06.09.2021. - P3 COPY OF THE G.O (MS) NO.33/2021/TRANS DATED 09.11.2021. ## RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A. TO C.J.