Sujith Kumar v. Regional Transport Authority, Pathanamthitta and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938** **WP(C).No. 7609 of 2017 (A) ---------------------------** **PETITIONER:** ## **-----------** **SUJITH KUMAR, PUTHUPARAMBIL, THRIKODITHANAM, CHANGANACHERRY.** **BY ADV. SRI.P.DEEPAK** **RESPONDENT(S):** - **--------------** **1. THE REGIONAL TRANSPORT AUTHORITY, PATHANAMTHITTA PIN 689 645.** ## **2. THE SECRETARY,** - **REGIONAL TRANSPORT AUTHORITY, PATHANAMTHITTA 689 645.** **3. THE PATHANAMTHITTA DISTRICT PRIVATE BUS OPERATORS ASSOCIATION, NEAR REGIONAL TRANSPORT OFFICE, PATHANAMTHITTA 689 645.** **4. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, PATHANAMTHITTA 689 645.** **R1,R2 BY SENIOR GOVERNMENT PLEADER SMT C.S.SHEEJA R4 BY ADV. SRI.JOHN MATHEW, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **WP(C).No. 7609 of 2017 (A)** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------EXT.P1 A TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 30.11.2016** **EXT.P2 A TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 28.9.2016 EXT.P3 A TRUE COPY OF JUDGMENT REPORTED IN AIR 2000 KERALA 356** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** ## **/TRUE COPY/** **P.A.TO JUDGE** **J.V.** ## _**C.R.**_ ## **P.B.SURESH KUMAR, J.** **--------------------------------------------** ## **W.P.(C).No.7609 of 2017-A** **---------------------------------------------------------------** **Dated this the 10[th] day of March, 2017** ## **J U D G M E N T** Admit. Government Pleader takes notice for respondents 1 and 2. Standing Counsel takes notice for the fourth respondent. Notice to the third respondent is dispensed with as it is unnecessary to issue notice to the third respondent for adjudicating the issue raised in this writ petition. As agreed to by the counsel on either side, the writ petition is disposed of at the admission stage itself by this judgment. The matter arises under the Motor Vehicles Act, 1988 ('the Act' for short). 2. The petitioner has applied to the first respondent for grant of a regular permit to operate a stage **W.P.(C).No.7609/2017-A** 2 carriage service. The application preferred by the petitioner has been rejected by the first respondent as per Ext.P1 order holding that the route is over saturated and it had already taken a decision to refrain from issuing further permits on the route. The decision of the first respondent as referred to in Ext.P1 is Ext.P2. Ext.P2 is a decision taken on applications preferred by the third respondent, an association of private bus operators and the fourth respondent, the Kerala State Road Transport Corporation, requesting the first respondent to refrain from issuing further permits on the route. According to the petitioner, Ext.P2 decision was never brought to his notice and Ext.P1 order is, therefore, vitiated for non compliance of the principles of natural justice. It is also the case of the petitioner that an application preferred under the Act for grant of a permit to operate a stage carriage service cannot be rejected on the ground that the route is over saturated. **W.P.(C).No.7609/2017-A** 3 Since Ext.P1 order is vitiated for non compliance of the principles of natural justice, according to the petitioner, he is entitled to challenge the same in this proceedings under Article 226 of the Constitution, notwithstanding the alternative remedies available to him. Hence this writ petition. 3. The learned counsel for the petitioner contended that if the first respondent had already taken a decision that fresh permits need not be issued as the route is over saturated, and if the first respondent proposed to decide the application preferred by the petitioner solely based on the said decision, the petitioner is certainly entitled to be heard on the correctness of the said decision. According to the learned counsel, Ext.P1 being an order issued solely based on an earlier decision taken by the first respondent without affording the petitioner an opportunity of hearing on the correctness of the said decision, the same can be regarded only as an order passed without compliance **W.P.(C).No.7609/2017-A** 4 of the principles of natural justice. Relying on the decision of the Apex Court in _**Mithilesh Garg v. Union of India**_ (AIR 1992 SC 443), the learned counsel for the petitioner also contended that an application preferred under the Act for grant of a permit to operate a stage carriage service cannot be rejected on the ground that the route is over saturated. 4. Per contra, the learned Government Pleader contended that an enquiry has been conducted through the Motor Vehicles Inspector concerned on the applications preferred by respondents 3 and 4 and it was found in the said enquiry that the route is over saturated. According to the learned Government Pleader, it is on account of the said reason that Ext.P2 decision was taken. The report of the Motor Vehicles Inspector, on the basis of which Ext.P2 decision was taken, was also made available to the Court at the time of hearing. 5. The issue arises for consideration is whether an application preferred under the Act for grant of a permit **W.P.(C).No.7609/2017-A** 5 to operate a stage carriage service can be decided solely based on a general policy decision already taken by the statutory authority as regards disposal of a class or category of applications. Two decisions of the English Courts, on which reliance was placed by the learned counsel for the petitioner, give a convincing idea as to the principles to be applied in matters like this. As regards the right of licensing bodies to lay down itself a general policy to guide its decisions and the procedure to be followed in the matter of dealing with the applications in such cases, it was held in _**Sagnata Investments v. Norwich Corpn.**_ ([1971] 2 All ER 1441), as under: “There has been much discussion lately on the right of a licensing body to lay down for itself a general policy to guide its decisions. In the past recourse has been had to the words of Bankes LJ in R v Port of London Authority, ex parte Kynoch Ltd, and to the judgment of Lord Goddard CJ in R v Torquay Licensing Justices, ex parte Brockman; but these cases have now to be read in the light of the decisions of Cooke J in Stringer v Minister of Housing and Local Government and of the House of Lords in British Oxygen Co Ltd v Minister of Technology and of this court in Cumings v Birkenhead Corpn. I take it to be perfectly clear now 6 ## **W.P.(C).No.7609/2017-A** that an administrative body, including a licensing body, which may have to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, provided always that it is a reasonable policy which it is fair and just to apply. Once laid down, the administrative body is entitled to apply the policy in the individual cases which come before it. The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not 'shut its ears to an application'. The applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not be applied to him. But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others.” (underline supplied) The question whether a licensing body is entitled to decide applications solely by reference to a preordained policy was answered in _**R** v._ _**Windsor Licensing Justices, ex parte Hodes**_ ([1983] 2 All ER 551) thus: “The power conferred on licensing justices by s 3(1) and (2) of the 1964 Act to grant justices' licences 'as a new licence or by way of renewal' to such properly qualified persons 'as they think fit and proper' is a power expressed in permissive terms, which is exercisable or not at their discretion. The authorities show that this discretion is a very wide one, both in the case of an original grant and of a renewal: see, for example, Sharp v Wakefield [1891] AC 173, [1886 - 90] All ER Rep 651. Nevertheless, it is a discretion which must be exercised according to reason and justice, not in an **W.P.(C).No.7609/2017-A** 7 arbitrary manner (see, for example, [1891] AC 173 at 179, [1886-90] All ER Rep 651 at 653). It is therefore well established that licensing justices must exercise their discretion in each case that comes before them and cannot properly determine an application simply by reference to a preordained policy relating to applications of a particular class, without reference to the particular facts of the application before them.” (underline supplied). The principles laid down in the aforesaid cases synchronise with the scheme of our Constitution. In the circumstances, it can be concluded that an administrative/quasi-judicial body is entitled to formulate a general policy for arriving at individual decisions provided, the same is fair, just and reasonable, and the same shall be applied with reference to the facts of each case. But, if an authority proposes to reject an application based on the general policy arrived at, the general policy should be brought to the notice of the individual applicant and he should be given an opportunity to contend that the policy should be changed or that it should not be applied to him. 6. It is beyond dispute that Ext.P1 order is passed solely based on Ext.P2 decision. Admittedly, the petitioner 8 ## **W.P.(C).No.7609/2017-A** has not been given notice of Ext.P2 decision of the first respondent. In the circumstances, Ext.P2 decision should not have been relied on to reject the application preferred by the petitioner. I am, therefore, inclined to accept the case set up by the petitioner that Ext.P1 order is vitiated for non compliance of principles of natural justice. In the result, the writ petition is allowed, Ext.P1 order is quashed and the first respondent is directed to take a fresh decision on the application preferred by the petitioner for grant of permit after affording the petitioner an effective opportunity of hearing as to the correctness of the finding rendered in Ext.P2 decision that the route is over saturated and on the question as to whether an application for grant of permit can be rejected on the ground that the route is over saturated. The report relied on by the first respondent to take Ext.P2 decision shall also be served on the petitioner in advance. A decision in this regard shall be taken within a month from the date of receipt of a copy of 9 ## **W.P.(C).No.7609/2017-A** this judgment. Sd/- **P.B.SURESH KUMAR, JUDGE.** rsr