Nandakumar M.N. & Rajesh Krishnan v State of Kerala and Others

**C. R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943** ## **WP(C) NO. 8352 OF 2021** ## **PETITIONERS:** 1 NANDAKUMAR M.N AGED 54 YEARS S/O.NARAYANA MENON, RESIDING AT MALIKATHAZHATH HOUSE, PANDIT KARUPPAN ROAD, CHERANALLUR 682 034 2 RAJESH KRISHNAN AGED 39 YEARS S/O.KRISHNAN, RESIDING AT VLIYATH AMBALAKKADAVU, CHERANALLUR, ERNAKULAM 682 034 BY ADVS. V.HARISH P.DEEPAK SRI.RAJAN VISHNURAJ ## **RESPONDENTS:** 1 STATE OF KERALA REP.BY THE SECRETARY, DEPARTMENT OF TRANSPORT, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 REGIONAL TRANSPORT AUTHORITY ERNAKULAM 682 030 REP.BY ITS SECRETARY 3 THE SECRETARY REGIONAL TRANSPORT AUTHORITY, ERNAKULAM 682 030 4 REGIONAL TRANSPORT OFFICER 2ND FLOOR, CIVIL STATION, KAKKANAD, THRIKKAKARA P.O., ERNAKULAM 682 030 5 AREA MANAGER SOUTHERN RAILWAYS, ERNAKULAM 682 012 ## **WP(C) NO. 8352 OF 2021 -2-** 6 ASSISTANT COMMISSIONER TRAFFIC POLICE WEST, OFFICE OF THE ASSISTANT COMMISSIONER (TRAFFIC WEST), ERNAKULAM 682 012 BY ADVS. BY SPL. GOVT. PLEADER SRI.P.SANTHOSH KUMAR SRI.K.SHRI HARI RAO, SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C. R.** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W. P. (C) No.8352 of 2021** **= = = = = = = = = = = = = = = = = = Dated this the 26[th] day of November, 2021** **J U D G M E N T** Can the place of residence be an eligibility criteria for applying for a contract carriage permit? Ext.P7 is the order of the Secretary, Regional Transport Authority imposing such condition for grant of permit for autorickshaws. The same is under challenge in this writ petition. 2. Heard Sri.P.Deepak, the learned counsel for the petitioners and Sri.P.Santhosh Kumar, Special Government Pleader. I was taken exhaustively through the relevant provisions of the Motor Vehicles Act and Rules. 3. Section 74 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') deals with the grant of contract carriage permit. Sub-section 3(a) of Section 74 enables a State Transport Authority and a Regional Transport Authority, if directed by the Government, to limit the number of contract carriages generally, or of any specified type, operating on the ## **W. P. (C) No.8352 of 2021** **==> picture [34 x 10] intentionally omitted <==** city routes in towns with a population of not less than 5 lakhs. Ext.P5 is such a notification issued in terms of Section 74(3)(a). Thereunder, insofar as Kochi City is concerned, the permits for autorickshaws is limited at 3,600 numbers. Ext.P5 is dated 12.12.1995. 4. Thereafter, as per Ext.P6 notification dated 22.11.2018, the Regional Transport Authorities were permitted to grant/issue permits for another 3000 numbers of LPG/LNG/CNG/electric autorickshaws. As per the notification, out of the 3000 permits, 2000 permits were to be allotted for electric autos and 1000 permits to be allotted to autorickshaws run by other fuels like CNG/LNG/LPG. Pursuant to the Government Order, the Regional Transport Authority, Ernakulam, in its meeting held on 19.01.2019, as item No.63 resolved as follows:- _“In obedience with the order of the Hon'ble Government of Kerala as per GOP No.41/2018 dated 22/11/2018 this authority is hereby fixed the limit for autorickshaws LPG/LNG/CNG/Electric autorickshaws in Kochi city as 3000 numbers in_ **W. P. (C) No.8352 of 2021** -: 3 :- _which 2000 permits will be allotted only for electric autos and a separate quota of 1000 permits will be allotted to other fuels like CNG/LNG/LPG apart from the autorickshaws already fixed. The Secretary, RTA is entrusted to disburse the permit among the deserving applicants.”_ 5. Pursuant thereto, the Secretary, Regional Transport Authority issued Ext.P7 order, whereunder, sanction was accorded for grant of permits subject to the twelve conditions specified therein. The petitioners are aggrieved by condition numbers 1, 5 and 8 therein, whereunder, residence within Kochi Corporation is made an eligibility criteria for permit. The imposition of such a condition is beyond the authority of the RTA and is not sanctioned under Section 74 of the Act or the Rules made thereunder, is the contention. 6. As to what all factors could go into the zone of consideration while granting a permit have been stated in Section 74(3)(b) of the Act. A reference to **W. P. (C) No.8352 of 2021** -: 4 :- the said provision being of relevance, is extracted ## hereunder:- _“_ _**74. Grant of contract carriage permit.** -(1) Subject to the provisions of sub-section (3), a Regional Transport Authority may, on an application made to it under Section 73, grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit._ _(3) (a) xxxxx xxxxx_ _(b) Where the number of contract carriages are fixed under clause (a), the Regional Transport Authority shall, in considering an application for the grant of permit in respect of any such contract carriage, have regard to the following matters, namely:-_ _(i) Financial stability of the applicant;_ _(ii) Satisfactory performance as a contract carriage operator including payment of tax if the applicant is or has been an operator of contract carriages; and_ **W. P. (C) No.8352 of 2021** -: 5 :- _(iii) Such other matters as may be prescribed by the Stage Government.”_ 7. Sub-clauses (i) and (ii) to sub-section (b) relate to financial stability, and satisfactory performance as a contract carriage operator if he had been such an operator. Sub-clause (iii) states, “such other matters as may be prescribed”. Section 2(32) defines the term “prescribed” thus, “prescribed” means prescribed by the Rules made under the Act. Therefore, any other criteria other than sub-clauses (i) and (ii), if intended to be included, shall be by way of a Rule. Admittedly, as of now, there is no such Rule under the Central or Kerala Motor Vehicle Rules, prescribing residence as a criteria for grant of a contract permit. Therefore, reliance on Section 74(3)(b)(iii), is of no avail to the respondent. 8. That apart, as could be noticed, sub-section (b) of Section 74(3) only stipulates factors to be ## **W. P. (C) No.8352 of 2021** -: 6 :- considered for the grant of permit and does not fix any eligibility criteria for making an application. Fixation of any such eligibility criteria for submitting an application or even for the grant of a contract permit, is not enabled under Section 74 of the Act. 9. Sri.P.Deepak, the learned counsel for the petitioner drew my attention to Rule 145 of the Kerala Motor Vehicles Rules which deals with grant of stage carriage permits. Sub-rule (3) of Rule 145 provides certain guiding principles for grant of permits. Under sub-heading 'A' thereto, residential qualification is included as a criteria. Such a provision is conspicuously absent in the case of grant of permits for contract carriages. 10. A somewhat similar situation came up for consideration before the High Court of Bombay in _**Shivpujan Kumar v. State of Maharashtra AIR (2017) Bom 198.**_ That also related to grant of permits to contract carriages- **W. P. (C) No.8352 of 2021** -: 7 :- autorickshaws. The Transport Commissioner published a notice inviting applications for grant of permits. In the notice a condition was incorporated thus:- _“The applicant should have knowledge of Marathi language and geographical knowledge of the local area as per Rule 24 of the Maharashtra Motor Vehicles Rules, 1989.”_ 11. Referring to Section 74 of the Motor Vehicles Act, the Division Bench of the Court held that, under Section 74 there is no power to impose such an eligibility criteria to apply for grant of permit. Though Rule 24 of the Maharashtra Motor Vehicles Rules provided topographical knowledge of the area as a condition, the Court noticed that the Rule does not apply to motor cabs. The Court held that, without there being an enabling provision under the Act and the Rules, such a condition could not have been imposed by the authorities. The Division Bench referred to the judgment of the Apex Court in _**Pancham Chand v. State of Himachal**_ **W. P. (C) No.8352 of 2021** -: 8 :- ## _**Pradesh (2008) 7 SCC 117,**_ which held, _“The Act is a self-contained code. All the authorities mentioned therein are statutory authorities. They are bound by the provisions of the Act. They must act within the four corners thereof. The State, although, has a general control but such control must be exercised strictly in terms of Article 162 of the Constitution of India.......The Regional Transport Authority being a statutory body is bound to act strictly in terms of the provisions thereof. It cannot act in derogation of the powers conferred upon it. While acting as a statutory authority it must act having regard to the procedures laid down in the Act. It cannot bye-pass or ignore the same”_ . ## 12. On an elaborate discussion, the Division Bench ## concluded thus:- _“19. Unless there is a specific provision under the said Act or under the Rules framed in exercise of power under the said Act empowering the State Government to prescribe such qualifications for the applicants who want to apply for Contract Carriage Permits in respect of autorickshaws, the_ **W. P. (C) No.8352 of 2021** -: 9 :- _State Government could not have lawfully imposed the impugned condition. The State Government is under a mandate to act within four corners of the said Act and the Rules framed thereunder. Nothing prevented the State Government from exercising the Rule making power, if it is otherwise permissible in law, for empowering the Transport Department to impose such condition as a condition precedent for grant of permit. Only by giving an excuse of public interest, the State Government cannot circumvent the provisions of the said Act and the Rules framed thereunder. The State Government cannot apply Rule 24 as it is not applicable to motor cabs.”_ 13. Since neither the Act nor the Rules thereunder stipulate place of residence as an eligibility criteria for grant of a contract carriage permit, such a condition could not have been incorporated by the Secretary, Regional Transport Authority. Ext.P7 order insofar as it incorporates such a condition is bad in law. **W. P. (C) No.8352 of 2021** -: 10 :- 14. Accordingly clauses 1, 5 and 8 in Ext.P7 order of the Secretary, Regional Transport Authority, are quashed. The prescriptions regarding residence, shall stand deleted from Ext.P7 order. Writ petition is allowed as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 8352/2021** PETITIONER EXHIBITS |EXHIBIT P1|A TRUE PHOTOCOPY OF THE R/C PARTICULARS OF| |---|---| ||THE VEHICLE BEARING NO.KL-7 CN 9647 DATED| ||12.7.2018 OF THE 1ST PETITIONER| |EXHIBIT P2|A TRUE PHOTOCOPY OF THE CONTRACT CARRIAGE| ||PERMIT VIDE NO.P.CO. 7/2828/2018 DATED| ||28.7.2018 ISSUED BY THE 2ND RESPONDENT TO THE| ||1ST PETITIONER.| |EXHIBIT P3|A TRUE COPY PHOTOCOPY OF THE R/C PARTICULARS| ||OF THE VEHICLE BEARING NO.KL-7 CR 9657 DATED| ||24.5.2019 OF THE 2ND PETITIONER.| |EXHIBIT P4|A TRUE PHOTOCOPY OF THE CONTRACT CARRIAGE| ||PERMIT VIDE NO.KL/7/CC/AR/2019/156 DATED| ||13.6.2019 ISSUED BY THE 2ND RESPONDENT TO THE| ||2ND PETITIONER.| |EXHIBIT P5|A TRUE PHOTOCOPY OF THE NOTIFICATION SRO| ||NO.1502/95 DATED 12.12.1995 ISSUED BY THE 1ST| ||RESPONDENT.| |EXHIBIT P6|A TRUE PHOTOCOPY OF THE NOTIFICATION G.O.(P)| ||NO.41/2018/TRAN DATED 22.11.2018 ISSUED BY| ||THE 1ST RESPONDENT.| |EXHIBIT P7|A TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE| ||SECRETARY, REGIONAL TRANSPORT AUTHORITY,| ||ERNAKULAM VIDE ORDER NO.G4/11372/2019/E DATED| ||24.2.2020| |Exhibit P8|A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE| ||MINUTES OF THE MEETING OF THE RTA, ERNAKULAM| ||HELD ON 19.1.2021| -----