Kabeer M.T v. Regional Transport Authority Kozhikode and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019/13TH BHADRA, 1941** ## **WP(C).No.21346 OF 2019(P)** ## **PETITIONER:** **KABEER M.T AGED 44 YEARS S/O. MOHAMMED, MANNIL THODI HOUSE, KUNIYIL, KEEZHUPARAMBA P.O, MALAPPURAM DISTRICT.** **BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H. SMT.K.S.SMITHA SRI.V.R.SANJEEV KUMAR** ## **RESPONDENTS:** **1 REGIONAL TRANSPORT AUTHORITY KOZHIKODE, REPRESENTED BY ITS SECRETARY, PIN673 020 2 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOZHIKODE, PIN673 020 3 MR. AHAMMED N.P, S/O. POCKER, 28/1123, NAITHUKULANGARA HOUSE, CHEVAYUR P.O, KOZHIKODE-673 017 R3 BY ADV. SRI.O.D.SIVADAS** **SRI HARISH K.P- SENIOR GOVERNMENT PLEADER ; SMT SAMEERA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.21346/2019(P)** ..2.. ## **JUDGMENT** The petitioner, who is a stage carriage operator and registered owner of stage carriage bearing Reg.No.KL-57/H6559, on the route Chennamangallur-Kozhikode, Via. Mavoor, Koolimadu, Keezhuparamba, covered by Ext.P1 regular permit, which is valid upto 22.04.2022, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 2[nd] respondent to consider and take a decision on Ext.P3 representation made by the petitioner against settlement of timings of the service of the 3[rd] respondent to be operated with stage carriage bearing Reg.No.KL-53/7788. The petitioner has also sought for writ of mandamus commanding the 2[nd] respondent to hear the petitioner also while settling the timings of the 3[rd] respondent's service, in order to substantiate the contentions made in Ext.P3. 2. On 05.08.2019, when this writ petition came up for admission, learned Government Pleader took notice on **WP(C).No.21346/2019(P)** ..3.. admission for respondents 1 and 2. The learned Government Pleader was directed to get instructions. 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the respondents 1 and 2 and also the learned counsel for the 3[rd] respondent. 4. The issue that arises for consideration in this writ petition, is as to whether the petitioner is entitled for consideration of Ext.P3 representation by the 1[st] respondent Regional Transport Authority against settlement of timings of the service of the 3[rd] respondent's stage carriage bearing Reg.No.KL-53/7788. 5. A reading of Ext.P3 representation would make it explicitly clear that, the timings of the 3[rd] respondent's stage carriage bearing Reg.No.KL-53/7778 has already been settled in the timing conference conducted on 13.06.2019. The petitioner attended that timing conference and submitted his objections. The timings of the stage carriage of the 3[rd] respondent was settled by the 2[nd] respondent after considering the objections raised by the petitioner and other **WP(C).No.21346/2019(P)** ..4.. en route operators. 6. If the petitioner is feeling aggrieved by the revision of timing granted to the 3[rd] respondent, his remedy is to challenge that proceedings by invoking the statutory remedy of revision provided under Section 90 of Motor Vehicles Act 1988. Without invoking the statutory remedy, the petitioner cannot approach the 2[nd] respondent with Ext.P3 representation, seeking interference. 7. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC** **145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; **WP(C).No.21346/2019(P)** ..5.. " **15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodian-cumManaging Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the **WP(C).No.21346/2019(P)** ..6.. force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied) 8. In **Oriental Bank of Commerce v. Sunder Lal** **Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to **WP(C).No.21346/2019(P)** ..7.. enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. : **Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. **WP(C).No.21346/2019(P)** ..8.. **Note 192** .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. **Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled **WP(C).No.21346/2019(P)** ..9.. by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed **WP(C).No.21346/2019(P)** ..10.. as follows in paragraph 15 of the reports: "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing **WP(C).No.21346/2019(P)** ..11.. from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to their case." 9. **In State of U.P. v. Harish Chandra [(1996) 9** **SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by **WP(C).No.21346/2019(P)** ..12.. the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; " **10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no **WP(C).No.21346/2019(P)** ..13.. mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......." 10. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC** **259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of **WP(C).No.21346/2019(P)** ..14.. Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]. 11. In **Vinod Kumar v. District Geologist and others [2019 (3) KHC 79]** in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the District Geologist to consider that application in **WP(C).No.21346/2019(P)** ..15.. contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. 12. In view of the law laid down in the decisions referred to supra, the 2[nd] respondent cannot be directed to consider Ext.P3 representation made by the petitioner, as no mandamus can be issued to do something which is contrary to law. In the result, this writ petition fails and the same is accordingly dismissed; however without prejudice to the right, if any, of the petitioner to invoke the statutory remedy under Section 90 of the Motor Vehicles Act, against the revision of timings granted to the 3[rd] respondent's stage carriage. ## **Sd/ANIL K.NARENDRAN, JUDGE** PR **WP(C).No.21346/2019(P)** ..16.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PERMIT RELATING TO BUS NO. KL 57H-6559 OPERATING ON THE ROUTE CHENNAMANGALLUR-KOZHIKODE VIA MAVOOR, KOOLIMADU, KEEZHUPARAMBA WHICH IS VALID UPTO 22.04.2022.** **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS DATED 13.04.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 17.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **RESPONDENTS' EXTS: NIL**