K.T. THOMAS and RAJESH K. JACOB v REGIONAL TRANSPORT AUTHORITY, KOTTAYAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 17TH DAY OF MARCH 2017/26TH PHALGUNA, 1938** **WP(C).No. 1786 of 2017 (W) --------------------------** **PETITIONERS:** **------------** **1. K.T.THOMAS, KAVUNKAL HOUSE, ELAMPPALLY P.O., PALLICKATHODE, KOTTAYAM.** **2. RAJESH K. JACOB, KAYUNNAPPARA HOUSE, ANICKADU EAST P.O., KOTTAYAM** ## **BY ADV. SRI.P.DEEPAK** **RESPONDENTS:** **------------** **1. THE REGIONAL TRANSPORT AUTHORITY, KOTTAYAM - 686001.** **2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOTTAYAM - 686001.** **BY SPECIAL GOVERNMENT PLEADER SRI.P.SANTHOSH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-03-2017, THE COURT ON 17-03-2017 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 1786 of 2017 (W) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1:**|<br>**A TRUE COPY OF THE REGULAR PERMIT ISSUED TO THE**| |---|---| ||**1ST PETITIONER ON THE ROUTE ELAMKAD-PANATHUR.**| |**EXHIBIT P1(A):**|**A TRUE COPY OF THE REGULAR PERMIT ISSUED TO THE**| ||**2ND PETITIONER ON THE ROUTE ELAMKAD-PANATHUR**| |**EXHIBIT P2:**|**A TRUE COPY OF THE PROCEEDINGS OF THE RTA,**| ||**KASARAGOD DATED 20.7.2012.**| |**EXHIBIT P2(A):**|**A TRUE COPY OF THE PROCEEDINGS OF THE RTA,**| ||**KANNUR DATED 25.8.2011.**| |**EXHIBIT P2(B):**|**A TRUE COPY OF THE PROCEEDINGS OF THE RTA,**| ||**VATAKARA DATED 02.9.2011.**| |**EXHIBIT P2(C):**|**A TRUE COPY OF THE PROCEEDINGS OF THE RTA,**| ||**KOZHIKODE DATED 02.9.2011.**| |**EXHIBIT P2(D):**|**A TRUE COPY OF THE PROCEEDINGS OF THE RTA,**| ||**MALAPPURAM DATED 23.4.2012.**| |**EXHIBIT P2(E):**|**A TRUE COPY OF THE PROCEEDINGS OF THE RTA,**| ||**THRISSUR DATED 4.6.2012.**| |**EXHIBIT P2(F):**|**A TRUE COPY OF THE PROCEEDINGS OF THE RTA,**| ||**MUVATTUPUZHA DATED 02.1.2012.**| |**EXHIBIT P2(G):**|**A TRUE COPY OF THE PROCEEDINGS OF THE RTA,**| ||**ERNAKULAM DATED 12.6.2012.**| |**EXHIBIT P3:**|**A TRUE COPY OF THE PROCEEDINGS OF THE**| ||**1ST RESPONDENT DATED 14.8.2014.**| |**EXHIBIT P4:**|**TRUE COPY OF THE APPLICATION FOR RENEWAL OF**| ||**PERMIT FILED BY THE 1ST PETITIONER**| ||**ON 11.11.2014.**| |**EXHIBIT P4(A):**|**TRUE COPY OF THE APPLICATION FOR RENEWAL OF**| ||**PERMIT FILED BY THE 2ND PETITIONER**| ||**ON 15.11.2014.**| |**EXHIBIT P5:**|**TRUE COPY OF THE TEMPORARY PERMIT ISSUED TO THE**| ||**1ST PETITIONER DATED 10.11.2016.**| |**RESPONDENTS' EXHIBITS**<br>**:**<br>**NIL.**|| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| **mbr/** **C.R.** ## **P.B.SURESH KUMAR, J.** **--------------------------------------------** **W.P.(C).No.1786 of 2017** **--------------------------------------------------------------Dated this the 17[th] day of March, 2017** ## **J U D G M E N T** Petitioners are stage carriage operators. They operate services on an inter-regional route. Permit was obtained by the second petitioner for the service in the year 1999 and the first petitioner in the year 2000. The grants in favour of the petitioners were subject to condition that they should obtain countersignatures from the sister Regional Transport Authorities for operation of the services within their jurisdiction. The petitioners have, accordingly, obtained countersignatures on their permits from all the sister Regional Transport Authorities and were W.P.(c).No.1786 of 2017 : 2 : operating services on that basis. The permits granted to the petitioners were renewed on their applications later upto the year 2009 and 2010 respectively by the first respondent, the primary Regional Transport Authority, after obtaining orders of concurrence from the sister Regional Transport Authorities. Later, when the petitioners applied for renewal of the permits for the period upto the year 2014 and 2015 respectively, the first respondent again sought and obtained orders of concurrence from the sister Regional Transport Authorities. Exhibits P2 series are the orders of concurrence obtained by the first respondent for renewal of the permits of the petitioners. It is stated by the petitioners that though orders of concurrence have been obtained from the sister Regional Transport Authorities for renewal of the permits of the petitioners during the year 2012 itself, the first respondent is yet to renew the permits on account of the objection raised by the Kerala State Road Transport Corporation. Consequently, the petitioners are operating services based on temporary permits. In the meanwhile, W.P.(c).No.1786 of 2017 : 3 : since the term for which renewal was sought by the petitioners expired, the petitioners have applied for renewal of the permits for the period upto the year 2019 and 2020 respectively also. Exhibit P4 series are the applications preferred by the petitioners for renewal of their permits in this connection. Since orders have not been passed on the applications for renewal preferred by the petitioners for the former period, Ext.P4 series applications for renewal of the permits for the latter period have not been taken up, submit the petitioners. It is alleged by the petitioners that the first respondent is taking the stand that orders of concurrence are to be obtained from the sister Regional Transport Authorities again for considering Ext.P4 series applications. According to the petitioners, since they have obtained countersignatures on the permits from all the sister Regional Transport Authorities, it is not necessary for the first respondent to obtain orders of concurrence from the sister Regional Transport Authorities for considering Ext.P4 series applications and the petitioners, therefore, seek directions to W.P.(c).No.1786 of 2017 : 4 : the first respondent to consider Ext.P4 series of applications without insisting orders of concurrence from the sister Regional Transport Authorities. Alternatively, the petitioners pray for a direction to the first respondent to consider Ext.P4 series applications on the basis of Ext.P2 series orders of concurrence. 2. A statement has been filed on behalf of the respondents. In the statement, the respondents do not deny the case of the petitioners that the first respondent is taking the stand that orders of concurrence are to be obtained from the sister Regional Transport Authorities for considering Ext.P4 series applications. On the other hand, it is reiterated by the respondents that the applications preferred by the petitioners for renewal of the permits cannot be considered without obtaining orders of concurrence from the sister Regional Transport Authorities. 3. Heard the learned counsel for the petitioners as also the learned Special Government Pleader. 4. The learned counsel for the petitioners, W.P.(c).No.1786 of 2017 : 5 : relying on the proviso to Sub section (1) of Section 81 of the Motor Vehicles Act (the Act), contended that where a permit is countersigned under sub-section (1) of Section 88 of the Act to be valid in other regions, such countersignature will remain effective without renewal for such period so as to synchronise with the validity of the primary permit. According to the learned counsel, the procedure laid down by Rule 171 of the Kerala Motor Vehicles Rules, 1989 (the Rules) is a supplementary provision for grant of permits to be valid in other regions and the said procedure need not be followed for renewal of the permits on which countersignatures have been obtained under sub-section (1) of Section 88 of the Act. Alternatively, it was also contended by the learned counsel for the petitioners that in so far as the permits issued to the petitioners had been renewed once following the procedure laid down in Rule 171 of the Rules, the said procedure need not be repeated for the subsequent renewals, for, even the said procedure is contemplated only for the grant of permits and the procedure is not required to W.P.(c).No.1786 of 2017 : 6 : be repeated for renewal of the permits granted in accordance with Rule 171 of the Rules. 5. Per contra, relying on the decision of the Apex Court in **Gajraj Singh and Others v State Transport Appellate Tribunal and Others** [(1997) 1 SCC 650], the learned Special Government Pleader contended that renewal of a permit issued under the Act is a fresh grant and therefore, the statute contemplates countersignatures for renewal as well. Though the learned Special Government Pleader agrees with the proposition that the procedure provided for in Rule 171 of the Rules is a supplementary provision for grant of permits to be valid in other regions, it was contended by him that the said procedure is also to be repeated for renewal of the permits. As regards the contention based on the proviso to sub section (1) of Section 81, the learned Special Government Pleader contended that the proviso only means that countersignature need not be renewed within the original term of the permit. According to the learned Special W.P.(c).No.1786 of 2017 : 7 : Government Pleader, countersignature is required for renewed permits to be valid in other regions, as otherwise, objectionable overlapping over the routes covered under the schemes notified under Section 100 of the Act will go unnoticed. 6. I shall now proceed to consider the contentions advanced by the learned counsel either side. As noted above, permits have been granted to the petitioners by the first respondent for conducting services outside its region also. Section 88 of the Act deals with the validation of permits for use outside the region. Sub section (1) of Section 88 provides that except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region. Sub-section (3) of section 88 provides that a Regional Transport Authority when countersigning the permit may attach to the permit any condition which it might have imposed if it had granted the W.P.(c).No.1786 of 2017 : 8 : permit and may likewise vary any condition attached to the permit by the authority by which the permit was granted. Sub-section (4) of Section 88 provides that the provisions of Chapter V relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of countersignatures of permits also. Rule 169 of the Rules dealing with the procedure in respect of countersignature provides that the provisions of the Act and the Rules relating to application for permits and the grant, refusal, suspension or cancellation of permits and all matters connected therewith, including appeals and provisions, shall apply to countersignatures of permits, except when otherwise provided for specifically. It is clear from the provisions contained in section 88 of the Act and Rule 169 of the Rules that countersignature is virtually a permit for all practical purposes. The question to be resolved is whether countersignature is required to be obtained on renewal of permit, for the same to be operative in regions other than the region of the authority which granted the renewal. W.P.(c).No.1786 of 2017 : 9 : Section 81 of the Act deals with duration and renewal of permit. Sub-section (1) of Section 81 reads thus: _**(1) A permit other than a temporary permit issued under Section 87 or a special permit issued under sub-section (8) of Section 88 shall be effective from the date of issuance or renewal thereof] for a period of five years:**_ _**Provided that where the permit is countersigned under subsection (1) of Section 88, such counter-signature shall remain effective without renewal for such period so as to synchronise with the validity of the primary permit.**_ While the substantive provision contained in sub-section (1) of Section 81 provides that a permit other than permits issued under Section 87 and sub-section (8) of Section 88, shall be effective for a period of five years from the date of issuance or its renewal thereof, the proviso to the said Section clarifies that if a permit is countersigned as provided for under section 88 of the Act, such countersignature shall remain effective without renewal for such period so as to synchronise with the validity of the primary permit. Even while the statute provides that the provisions of Chapter V relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of W.P.(c).No.1786 of 2017 : 10 : countersignatures of permits and the Rules provide that the provisions of the Act and the Rules relating to application for permits and the grant, refusal, suspension or cancellation of permits and all matters connected therewith, including appeals and provisions, shall apply to countersignatures of permits, except when otherwise provided for specifically, the statute does not provide for its renewal. There is also no provision to the effect that countersignature has to be obtained when a permit is renewed. On the other hand, as noted above, the proviso to sub-section (1) of Section 81 links the countersignature with the validity of the permit and provides categorically that countersignature once obtained shall be effective without renewal for such period so as to synchronize with the validity of the primary permit, indicating clearly that the countersignature will be valid until the permit is valid. I have, therefore, no hesitation to hold that countersignature need not be obtained on renewal of permit and the same once obtained will be valid until the permit is valid. W.P.(c).No.1786 of 2017 : 11 : ## 7. Rule 171 of the Rules reads thus: _**“171. Grant of regular permit for other regions without countersignature - (1) The Regional Transport Authority of any one region may, subject to the provisions of Section 72 of the Act, grant a permit, other than a permit referred to in Rule 170 to be valid in any other region or regions in this State without the countersignature of the Regional Transport Authority or Regional Transport Authorities of the other region or regions concerned, and shall, as soon as possible, send a copy of the proceedings relating to the issue of such permit to the State Transport Authority.**_ _**(2) The Regional Transport Authority granting a stage carriage permit under sub-rule (1) shall, before granting the permit obtain the concurrence of the Regional Transport Authority or Regional Transport Authorities of the other region or regions concerned.**_ _**(3) The provisions of sub-rule (2) shall apply also in the case of variation of the conditions of a stage carriage permit either by the inclusion of a new route or routes or a new area in any other region or regions, or the exclusion of any such route or routes or area.”**_ A reading of the provisions contained in Rule 171 indicates beyond doubt that it is a supplementary mechanism introduced for grant of permits to be valid on other regions. Section 88 of the Act dealing with validation of permits for use outside the region in which it is granted confers power on the rule-making authority to introduce such supplementary mechanism in the Rules, for, the said provision starts with the expression “except as may be otherwise prescribed”. I am fortified in this conclusion by W.P.(c).No.1786 of 2017 : 12 : the decision of this Court in **Parameswaran Nair v. R.T.O, Trissur** [1990 (2) KLT 812]. In other words, if a permit is granted in accordance with the procedure laid down in Rule 171 of the Rules, countersignatures need not be obtained for the same to be valid in other regions. It is relevant to note that Rule 171 of the Rules only deals with grant of permits. It does not provide that the procedure laid down therein has to be followed for renewal of permits. Further, Rule 172 of the Rules dealing with renewal of permits does not also provide that the procedure contained in Rule 171 of the Rules has to be followed while renewing the permit. The purpose of countersignature provided for in sub-section (1) of Section 88 and the concurrence provided for in Rule 171 of the Rules being one and the same, in the light of the proviso to subsection (1) of Section 81 of the Act, there is no difficulty in arriving at the conclusion that the procedure prescribed in Rule 171 of the Rules need not be followed for renewing the permits already issued. The said view, according to me, would go in tune with the statutory scheme. W.P.(c).No.1786 of 2017 : 13 : 8. Now I shall deal with the contentions raised by the learned Special Government Pleader. The main contention of the learned Special Government Pleader is that every renewal of a permit issued under the Act is a fresh grant and therefore, the statute contemplates countersignature for renewal as well. There cannot be any doubt that the renewal of a permit amounts to a fresh grant. But, the permits can be granted and renewed only in accordance with the provisions contained in the Act and the Rules. Separate provisions are made in the Act and Rules for grant of permit as also for its renewal. Since the grant of permit and its renewal are governed by the specific provisions contained in the Act and the Rules, in the absence of any provision to the effect that countersignatures have to be obtained on renewal of the permits issued on inter-regional routes, or that renewal of permits issued on inter-regional routes shall be granted only following the procedure prescribed in Rule 171 of the Rules, it cannot be contended that countersignatures shall be obtained on W.P.(c).No.1786 of 2017 : 14 : renewal of the permits issued in respect of inter-regional routes to be valid on other regions merely for the reason that renewal amounts to a fresh grant. The question considered by the Apex Court in **Gajraj Singh's case** _(supra)_ was whether the holder of a stage carriage permit under the repealed Motor Vehicles Act is required to obtain fresh permit or a renewal of the permit under the Act for the same to be operative. The observations made by the Apex Court in the said case have to be understood in the context of the said question. Looking at the said judgment in that perspective, I do not think that the said judgment would support the proposition advanced by the learned Special Government Pleader. 9. Another contention raised by the learned Special Government Pleader is that objectionable overlapping over the routes covered under the schemes will go unnoticed if countersignature is not insisted for renewal of the permit to be valid on other regions. There is no basis for this contention as well. First of all, renewal of permit is W.P.(c).No.1786 of 2017 : 15 : granted in accordance with the provisions contained in the Act and the Rules. The statutory authorities cannot introduce a procedure in the matter of renewing the permits which is not contemplated by the statute merely for the reason that the same would serve the purposes of the Act according to them. I have found that the statute does not contemplate countersignature on renewal of permits to be operative on other regions nor does it contemplate insistence of concurrence for renewing permits issued on inter-regional routes, for, the same to be valid on other regions. Further, Section 103 of the Act takes care of the situation pointed out by the learned Special Government Pleader. Section 103 of the Act empowers the State Transport Authority and the Regional Transport Authorities to cancel existing permits or modify the terms of the existing permits which are issued contrary to the provisions of any scheme notified under Chapter VI of the Act. In the light of the provisions contained in Section 103 of the Act, the aforesaid contention of the learned Special Government Pleader also fails. W.P.(c).No.1786 of 2017 : 16 : 10. Coming to the facts of the case, as noted above, the petitioners have obtained countersignatures of the sister Regional Transport Authorities on their permits. Further, when the petitioners have applied for renewal of the permits for the first time, the same were granted only after obtaining orders of concurrence from the sister Regional Transport Authorities. Again for the renewal of the permits sought by the petitioners for the periods upto 2014 and 2015 respectively, the first respondent has obtained Ext.P2 series orders of concurrence. In the circumstances, in the light of the finding that permits issued for conducting stage carriage service on inter-regional routes need not be countersigned on renewal to be valid in other regions, and the finding that orders of concurrence from sister Regional Transport Authorities need not be insisted for renewing the permits issued after following the procedure prescribed in Rule 171 of the Rules, the petitioners are entitled to the reliefs sought in the writ petition. In the result, the writ petition is allowed and the W.P.(c).No.1786 of 2017 : 17 : first respondent is directed to consider Exts.P4 and P4(a) applications and grant the renewal sought without insisting orders of concurrence from the Regional Transport Authorities of other regions, if the applications are otherwise in order. This shall be done simultaneously with the applications for renewal referred to in Ext.P3, in the next meeting of the Regional Transport Authority. Sd/- **P.B.SURESH KUMAR JUDGE** rsr