Sijo Paul and Saji v. Secretary, Regional Transport Authority, Idukki

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941** ## **WP(C).No.19322 of 2019** ## **PETITIONER:** **1 SIJO PAUL, S/O.M.D.PAULOSE, MUTTAMTHOTTIL HOUSE, MARUTHUKAVALA, PERUMBAVOOR.** **2 SAJI, S/O YACOB, CHEERAKATHOTTATHIL HOUSE, PAINGATTOOR P.O., KOTHAMANGALAM.** **BY ADV. SRI.K.T.RAVEENDRAN** ## **RESPONDENT:** **THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, IDUKKI - 685 603.** ## **SRI K.P.HARISH- SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C.19322/19 2 ## **'CR'** ## **JUDGMENT** The 1[st] petitioner is the registered owner of a stage carriage bearing No.KL-11/BD-2131, which is being operated on the route Aluva-Kanthaloor, on the strength of Ext.P2 temporary permit, which is valid till 27.09.2019. The 2[nd] respondent, who is another stage carriage operator, submitted Ext.P4 application dated 09.07.2019 for grant of fresh temporary permit on the aforesaid route. Thereafter, the petitioners have moved this Court in this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondent to forthwith issue temporary permit on Exhibit P4 application so as to enable the 2[nd] petitioner to operate his stage carriage bearing Registration No.KL-33/B-9610 on the route Aluva-Kanthaloor, in the vacancy of stage carriage bearing registration No.KL-07/J-8283, for a period of four months or in continuation of Ext.P2 permit from 21.07.2019 onwards subject to resumption of service of the defaulted stage carriage. 2. On 18.07.2019, when this writ petition came up for W.P.C.19322/19 3 admission the learned Government Pleader was directed to get instructions. 3. Heard the learned counsel for the petitioner and also the learned senior Government Pleader appearing for the respondents. 4. The issue that arises for consideration in this writ petition is as to whether the petitioners are entitled for the reliefs sought for in this writ petition. 5. Section 87 of the Motor Vehicles Act deals with temporary permits. As per sub-section (1) of Section 87, a Regional Transport Authority and the State Transport Authority may without following the procedure laid down in Section 80, grant permits to be effective for a limited period which shall, not in any case exceed four months, to authorise the use of a transport vehicle temporarily (a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings; or (b) for the purpose of a seasonal business; or (c) to meet a temporary need; or (d) pending decision on an application for the renewal of a permit, and may attach to any such permit such condition as it may think fit. As W.P.C.19322/19 4 per the proviso to sub-section (1), a Regional Transport Authority or as the case may be, State Transport Authority may, in the case of goods carriages, under the circumstances of an exceptional nature, and for reasons to be recorded in writing, grant a permit for a period exceeding four months, but not exceeding one year. 6. Sub-section (2) of Section 87, which starts with a non-obstante clause provides that, notwithstanding anything contained in sub-section (1), a temporary permit may be granted thereunder in respect of any route or area where (i) no permit could be issued under Section 72 or Section 74 or Section 76 or Section 79 in respect of that route or area by reason of an order of a Court or other competent authority restraining the issue of the same, for a period not exceeding the period for which the issue of the permit has been so restrained; or (ii) as a result of suspension by a Court or other competent authority of the permit of any vehicle in respect of that route or area, there is no transport vehicle of the same class with a valid permit in respect of that route or area, or there is no adequate number of such vehicles in respect of that route or area, for a W.P.C.19322/19 5 period not exceeding the period of such suspension. As per the proviso to sub-section (2), the number of transport vehicles in respect of which temporary permits are so granted shall not exceed the number of vehicles in respect of which the issue of permits have been restrained or, as the case may be, the permit has been suspended. 7. A reading of the provisions under clause (c) of subsection (1) of Section 87 of the Motor Vehicles Act make it explicitly clear that the grant of a temporary permit under the said clause can only be made for meeting a particular temporary need. Therefore in an application for temporary permit, invoking the provisions under clause (c) of sub-section (1) of Section 87, it is incumbent upon the applicant to state the temporary need on the route applied for, so as to enable the competent authority to entertain such an application. For grant of temporary permit, the competent authority is required to consider the condition stipulated in clause (c) of sub-section (1) of Section 87 of the Act and only if that condition is satisfied, temporary permit can be granted for the time limit specified in that Section. W.P.C.19322/19 6 ## 8. 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 with in the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; " **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 with in 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-cum-Managing W.P.C.19322/19 7 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 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) 9. 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 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. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, W.P.C.19322/19 8 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. Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and W.P.C.19322/19 9 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 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 W.P.C.19322/19 10 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 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 W.P.C.19322/19 11 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 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." W.P.C.19322/19 12 ## 10. 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 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 W.P.C.19322/19 13 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 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. ......." (underline supplied) ## 11. 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 the 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** W.P.C.19322/19 14 **Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264]** and **Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]** . 12. In the instant case, Section 87 of the Motor Vehicles Act does not contemplate either renewal or re-issue of a temporary permit granted under clause (c) of sub-section (1) of Section 87. It contemplates only fresh application for temporary permit and its consideration, subject to the conditions stipulated in clause (c) of sub-section (1) of Section 87. The competent authority has to consider fresh applications, if any, made for temporary permit and take an appropriate decision, considering the temporary need on that route. In such circumstances, the 1[st] petitioner, who has been granted Ext.P2 temporary permit on the route in question, for the period till 27.09.2019, cannot move a writ petition before this Court along with the 2[nd] petitioner, who has applied for a temporary permit on the said route, by submitting Ext.P4 application, seeking a writ of mandamus commanding the respondent to issue temporary permit, based on Ext.P4 application, so as to enable the 2[nd] petitioner to operate his stage carriage, on the route in W.P.C.19322/19 15 question, in the vacancy of stage carriage bearing registration No.KL-07/J-8283, in continuation of Ext.P2 permit from 21.07.2019 onwards. 13. In the result, this writ petition fails and the same is accordingly dismissed. It is made clear that the dismissal of this writ petition will not stand in the way of the 2[nd] petitioner pursuing before the appropriate authority any application for temporary permit, on the route in question, subject to the condition in clause (c) of sub-section (1) of Section 87 of the Motor Vehicles Act. ## **Sd/-** ## **ANIL K.NARENDRAN** DG ## **JUDGE** The word 'the 2[nd] respondent' appearing in the second sentence in paragraph 1 of the judgment dated 18.07.2019 in W.P.(C).No.19322/2019 is corrected as the '2[nd] petitioner' as per the order dated 22.08.2019 in W.P.(C).No.19322/2019. **==> picture [48 x 11] intentionally omitted <==** JOINT REGISTRAR W.P.C.19322/19 16 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**A TRUE COPY OF THE JUDGMENT DATED**| ||**10.05.2019 IN WPC NO. 13429 OF 2019**| |**EXHIBIT P2**|**A TRUE COPY OF THE TEMPORARY PERMIT**| ||**VALID TILL 27.09.2019 ISSUED TO THE 1ST**| ||**PETITIONER**| |**EXHIBIT P3**|**A TRUE COPY OF THE SURRENDER INTIMATION**| ||**DATED 12.07.2019**| |**EXHIBIT P4**|**A TRUE COPY OF THE APPLICATION FOR**| ||**TEMPORARY PERMIT DATED 09.07.2019 FILED**| ||**BY THE 2ND PETITIONER**|