Citation Codes

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citation codes

Case Number

O.P No. 340 of 1957

Attorney(S)

For the Appellant: K.S. Sebastian, Advocate.
For the Respondent: R1, Government Pleader, R2, P. Govindan Nair, P.K. Kurian, Advocates.

Judges

C.A Vaidialingam, J.

Acts

provisions of sub-rule (b). Sub-rule (b) of Rule 220
sub-rule (b) of Rule 220 of the Rules
MOTOR VEHICLES ACT

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Smart Summary

Structured Summary of the Opinion (Vaidialingam, J.)

Factual and Procedural Background

This is an application under Article 226 of the Constitution seeking a writ of certiorari (or other appropriate writ, order or direction) to call up and quash Order No. K.49PT/57 dated 29-7-57 of the Road Traffic Board, Kottayam (1st respondent). The petitioner, a bus-owner operating services on the Kottayam–Iyerkunnam and Kottayam–Thiruvarpu routes, alleged that by its order dated 29-7-57 the Road Traffic Board sanctioned the 2nd respondent's request to extend permits on the Kottayam–Thiruvarpu and Kanjikuzhi–Thiruvathuckal routes without complying with statutory provisions, and that he was adversely affected by those extensions.

The 2nd respondent, Swaraja Motors (Private) Ltd., Kottayam, stated that it had permits issued in 1946 for running buses on the Kottayam Town Roads which had been extended up to 26-6-1959; that some services had been run on the Kanjikuzhi–Thiruvathuckal and Thiruvarpu routes with the knowledge of the authorities; and that its application dated about 8-2-1957 to the Road Traffic Board sought regularisation and re-fixation of starting and terminal points within Kottayam Town Roads, not variation of permit conditions or grant of a new permit. The Road Traffic Board granted the relief sought by order dated 29-7-57, which the petitioner seeks to quash.

Legal Issues Presented

Whether the Road Traffic Board's order dated 29-7-57 (Ext. P5) granting the 2nd respondent's request was ultra vires, illegal, ineffective and void so as to warrant issuance of a writ of certiorari.
Whether the 2nd respondent's application dated 8-2-1957 should in law be treated as an application for grant of a new permit under section 57(8) of the Motor Vehicles Act because it allegedly included a new route or increased the number of services above the specified maximum.
Whether Clause (proviso) to section 57(8) (exempting certain frequency increases where there is no increase in vehicles) applies to the facts.
Whether sub-rule (b) of Rule 220 (requiring treatment of certain variations as fresh permit applications where variation authorises materially different transport facilities) applied to the order Ext. P5.
Whether changes such as re-fixation of starting/termini or changes in timings amount to variation of permit conditions.

Arguments of the Parties

Petitioner's Arguments

The Road Traffic Board's order of 29-7-57 sanctioning the 2nd respondent's prayer was ultra vires, illegal and void for failure to comply with statutory procedure.
The 2nd respondent's application dated 8-2-57 should be treated as an application for a new permit under section 57(8) of the Motor Vehicles Act because it authorised a new route or increased the number of services above the specified maximum, thereby triggering statutory procedural safeguards for a fresh permit.
The order was passed one day before the petitioner was formally granted his permit for the Kottayam–Thiruvarpu route (petitioner received formal permit on 30-8-57 but claims entitlement earlier), and counsel contended that the timing suggested mala fides; however, no materials were produced to substantiate mala fides.
Relied upon sub-rule (b) of Rule 220 to argue that the variation authorised by Ext. P5 should have been treated as a fresh permit application because it allegedly authorised materially different transport facilities.
Relied upon case law (Mohammed Jamil v. State Transport Authority, Rajasthan) to support the contention that the Board ought to have treated the application as a fresh permit application (as argued by counsel).

2nd Respondent's (Swaraja Motors) Arguments

The 2nd respondent had existing permits dating from 27-6-1946 for running buses in the Kottayam Town Roads and had been operating under those permits; those permits had been extended to 26-6-1959.
The application dated about 8-2-1957 sought only regularisation and re-fixation of starting and terminal points within the Kottayam Town Roads area and was not an application for grant of a fresh permit nor for variation by inclusion of a new route or new area.
The order Ext. P5 did not create any fresh right for a new route; at most it allowed the 2nd respondent to proceed a little further along an existing route, which is not the inclusion of a new route or area as contemplated by section 57(8).
The proviso to section 57(8) applies when the holder provides the only service on any route or area and seeks to increase frequency without increasing vehicles; here there was no evidence of additional vehicles being allowed, and therefore the order is protected by the proviso.
The change (if any) in timings or re-fixation of termini does not amount to variation of the conditions of the permit; the application was simply to regularise and re-fix starting/terminal points.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kali Mudaliar v. Vedachala (A.I.R. 1952 Madras 545)	The principle that timings fixed by the Regional Transport Authority at the time of grant of a permit are not a condition of the permit.	The court agreed with the reasoning of the Division Bench in Kali Mudaliar and held that a change of timings will not amount to variation of the conditions of the permit.
Mohammed Jamil v. State Transport Authority, Rajasthan (A.I.R. 1956 Rajasthan 125)	Authority was relied upon by petitioner-counsel to argue treatment of the application as a fresh permit application (as supporting his contention).	The court held that this decision was not helpful to the petitioner on the facts of the present case because here the 2nd respondent already had the right to run services in Kottayam Town Roads and Ext. P5 only re-fixed starting and termini.

Court's Reasoning and Analysis

The court considered only the portions of the Road Traffic Board's order that related to the Kottayam–Thiruvarpu and Kanjikuzhi–Thiruvathuckal routes and proceeded through the following analytical steps (as expressed in the opinion):

Preliminary locus/standing point: The court stated it was unnecessary to decide whether the petitioners were persons aggrieved for the purpose of entertaining the writ because the court found the application to be without substance on its merits.
Historical permits: The court noted that there was no dispute that the 2nd respondent had four permits for Kottayam Town Roads granted as early as 27-6-1946 (supported by enclosures and extant documents) and that even the petitioner admitted this fact in his affidavit.
Specific factual timing (petitioner's permit): The court observed that the petitioner admitted receiving a formal permit for Kottayam–Thiruvarpu on 30-8-57 but that the impugned order was dated 29-7-57, so the petitioner had no right to challenge the Board's order in respect of that route on those facts; the allegation of mala fides in respect of the timing was unsupported by material.
Main statutory contention (section 57(8) of the Motor Vehicles Act): The court addressed the contention that the 2nd respondent's application should be treated as an application for a new permit under section 57(8) because it allegedly included a new route or increased the number of services. The court held that the application dated 8-2-57 was not an application for varying the conditions of any permit by inclusion of a new route or new area. The permits were for the Kottayam Town Roads and the routes in question were within that area; Ext. P5 did not confer any fresh right in respect of a new route and at most allowed the 2nd respondent to proceed a little farther along the existing route — this did not amount to inclusion of a new route or area nor to an increase in services above the specified maximum.
Application of proviso to section 57(8): The court accepted the 2nd respondent's argument that once a permit had been granted for the Kottayam Town Roads and absent evidence to the contrary, the 2nd respondent provided the only service in the area; consequently, even if Ext. P5 resulted in increased frequency, the proviso protected the action (because there was no increase in vehicles) and the petitioner did not allege that additional buses were permitted.
Rule 220(b) argument: The petitioner invoked sub-rule (b) of Rule 220 (that variations authorising materially different transport facilities or inclusion of additional vehicles must be treated as fresh permit applications). The court found this inapplicable: there was no application to include additional vehicles and the order did not authorise transport facilities materially different from those authorised by the original permit.
Timings and conditions: The court relied upon Kali Mudaliar v. Vedachala to hold that timings fixed by the authority are not conditions of the permit; accordingly, a change of timings does not amount to variation of permit conditions.
On precedent cited by petitioner: The court observed that Mohammed Jamil v. State Transport Authority (Rajasthan) was not helpful on the facts because the present case involved regularisation of existing rights within Kottayam Town Roads rather than grant of a fresh right to a wholly new route.
Conclusion on merits: For these reasons the court concluded that there was no substance in the petitioner's challenge to Ext. P5 and dismissed the application.

Holding and Implications

Final Holding: The application under Article 226 fails and is dismissed. The court awarded costs of Rs. 100 to the 2nd respondent and dismissed C.M.P. 2251/57.

Implications:

Direct effect on the parties: The impugned order Ext. P5 of the Road Traffic Board, Kottayam dated 29-7-57 stands; the petition to quash that order was dismissed and the petitioner must pay the costs fixed by the court.
On broader law: The court applied section 57(8) of the Motor Vehicles Act, its proviso, and sub-rule (b) of Rule 220 to the facts and reaffirmed (by reference to Kali Mudaliar) that changes in timings do not constitute variation of permit conditions. The opinion did not purport to lay down any novel legal principle beyond application of these statutory provisions and existing authority to the admitted facts, and the court treated an application to regularise starting/terminal points within an area covered by extant permits as not amounting to creation of a new route or material variation requiring treatment as a fresh permit application.

This summary is limited strictly to the matters and statements contained in the provided opinion.

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Oommen v. Road Traffic Board, Kottayam And Another

The Judgment of the Court was delivered by

Vaidialingam, J.:— This is an application, under Art. 226 of the Constitution of India, for issue of a writ of certiorari or such appropriate writ, order or direction to the 1st respondent, the Road Traffic Board, Kottayam in order to call up the records and proceedings of their order No. K. 49PT/57 dated 29-7-57 and to quash the said order as ultra vires, illegal, ineffective and void.

2. The petitioner's case is that he is a bus-owner operating a service of two buses on the route Kottayam-Iyerkunnam about 10 miles distance and that he is also operating a service with one bus on the route Kottayam-Thiruvarpu about 5 miles distance. On 29-7-57, the Road Traffic Board, Kottayam, according to the petitioner, sanctioned the 2nd respondent's prayer by extending the permits as prayed for by them on the two routes namely, Kottyam-Thiruvarpu and Kanjikuzhi-Thiruvathuckal. The petitioner alleges that this has been done by the Road Traffic Board without complying with the statutory provisions and he also alleges that he has been adversely affected by the grant of the extended permits in favour of the 2nd respondent. According to the 2nd respondent, the Swaraja Motors (Private) Ltd., Kottayam, they had already obtained permits for running transport buses on the Kottayam Town Roads in 1946 and they were so operating on the Kottayam Town Roads from the date of the issue of the permits and that all these permits have been extended up to 26-6-1959. According to them, from 1949 in view of the one way traffic introduced on the M.C Road, their bus operating between Kottayam District Court-Kodimatha was diverted and was running between Kanjikuzhi and Thiruvathuckal to the knowledge of the Transport authorities. They further alleged that after the construction of the Illickal bridge, their bus operating between Kottayam and Thazhathangadi (Illickal bridge) was also proceeding up to Thiruvarpu to the knowledge of the authorities. They further state that they made an application in or about 8-2-1957 to the Road Traffic Board for regularising certain of their services in the Kottayam Town Roads and for re-fixation of starting and terminal points within the Kottayam Town Road and accordingly, the Road Traffic Board, by its order dated 29-7-57 granted the said request. Their application was not in any way, an application for variation of any of the conditions of the permit and they also contend that the applicants herein have no right to challenge those proceedings.

3. So far as this application is concerned, we are only concerned with that portion of the order of the Road Traffic Board which relates to the Kottayam-Thiruvarpu and Kanjikuzhi-Thiruvathuckal Routes.

4. It is not necessary to consider whether the petitioners are persons aggrieved by the order sought to be quashed, because I am otherwise satisfied that there is no substance in this application.

5. There is no dispute that as early as 27-6-1946 four permits were granted in favour of the 2nd respondent for running their buses on Kottayam Town Roads and permits were issued fixing the starting point and termini in those roads. That such permits for the “Kottayam Town Roads” were granted is clear from enclosures 1, 2, 3 and 4 filed along with the counter-affidavit of the 2nd respondent. This fact also is clear from Exts. P. 2 and P. 3 as also the order which is now sought to be quashed. In fact, even the petitioner himself admits in his affidavit filed in support of his application that the 2nd respondent was granted permits for running buses in the Kottayam Town Roads as early as 1946.

6. It may also be stated at this stage that so far as Kottayam-Thiruvarpu route is concerned, the petitioner himself admits in paragraph 4 of his reply affidavit that he got the formal permit only on 30-8-57 but that it has been granted to him one month earlier by order of the 1st respondent. Taking this statement, it follows that even apart from any other consideration, his interest in this route is only at the most from 30-7-57 whereas the impugned order has already been passed on 29-7-57. Therefore, even on the facts stated by the petitioner himself, he has no right to challenge, at any rate, the order, in so far as it relates to the Kottayam Thiruvarpu route. Mr. K.S Sebastian, learned counsel for the petitioner contends that this order passed just one day previous to his clients being granted a permit must be considered to be mala fide. Absolutely no materials have been placed to justify this contention of the learned counsel.

7. The substantial attack on the order by the learned counsel is based on the fact that the application dated 8-2-57 by the 2nd respondent in consequence of which the impugned order dated 29-7-57 (Ext. P5) was passed should be considered in law as an application for grant of a new permit and the Road Traffic Board should have followed the procedure as laid down in the Motor Vehicles Act and he also relies upon the provisions of clause 8 of section 57 of the Motor Vehicles Act. Section 57(8) of the Act is as follows:

“An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of services above the specified maximum, or in the case of a contract carriage permit or a public carrier's permit, by increasing the number of vehicles covered by the permit, shall be treated as an application for grant of a new permit:

(Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route or in any area to increase the frequency of the service so provided, without any increase in the number of vehicles.)”

8. The learned counsel's contention is that there has been a new route authorised under Ext. P5 or in any event, there has been an increase in the number of services above the specified maximum.

9. On the other hand, Mr. Govindan Nair learned counsel for the 2nd respondent contends that his application was not in any way for grant of a fresh permit or for varying the conditions of any permit already granted to him. He has already got a right to run buses in the Kottayam Town roads by virtue of the permits granted to him in 1946 itself and his application was only to so regularise and re-fix the starting and termini points in the said area. In my opinion, the application dated 8-2-1957 was not an application for varying the conditions of any permit by inclusion of a new route or routes or a new area. We are not really concerned about the validity of the permits issued to the 2nd respondent in 1946. As stated earlier, they are for the Kottayam Town roads and the routes mentioned therein are also within the said Kottayam Town roads area. The order Ext. P5 does not in any way give any fresh right in respect of a new route or routes. At the most, the order gives a right to the 2nd respondent to go in the same route a little longer. This certainly is not inclusion of a new route or a rutes or a new area as contemplated under clause 8 of section 57 which is very strongly relied upon by the learned counsel for the applicant. Nor is this a case of increasing the services above the specified maximum.

10. Mr. Govindan Nair further relies upon the proviso to clause 8 of section 57 which specifically says that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route or in any area to increase the frequency of the service so provided, without any increase in the number of vehicles. Once a permit having been granted to the 2nd respondent for running buses in the Kottayam Town roads, and in the absence of any evidence to the contrary, it follows that the 2nd respondent provides the only service in this area and even if the order Ext. P. 5 has resulted in the increase of the frequency of the service, the said order is amply protected by the said proviso. It is not the case of the petitioner that the 2nd respondent has been allowed to put additional buses in the said area.

11. Mr. Sebastian further relied upon sub-rule (b) of Rule 220 of the Rules framed by the Travancore-Cochin Government under the Act. Rule 220(a) states that the Transport Authority in its discretion may vary the permit or any Conditions thereof subject to the provisions of sub-rule (b). Sub-rule (b) of Rule 220 is as follows:

“(b) If the application is for the variation of the permit by the inclusion of an additional vehicles or if the grant of variation would authorise transport facilities materially different from those authorised by the original permit, the Transport Authority shall deal with the application as if it were an application for a permit.”

12. In my opinion, this sub-rule cannot help Mr. Sebastian. In the first place, there has been no application for the inclusion of an additional vehicle and in my view, the application is not also such as to result in the variation of the transport facilities materially different from those authorised by the original permit. Mr. Sebastian further contended that the order Ext. P. 5 has resulted in the change of bus timings and, therefore, it amounts to variation of the condition of the permit already issued in 1946. A Division Bench consisting of the learned Chief Justice and Mr. Justice Venkatarama Ayyar in the decision reported in Kali Mudaliar v. Vedachala (A.I.R 1952 Madras 545) has held that the timings fixed by the Regional Transport Authority at the time of the grant of permit is not a condition of the permit. I respectfully agree with the reasoning of the learned Judges and I hold that the change of timings will not amount to variation of the conditions of the permit. Mr. Sebastian finally relied upon the decision reported in Mohammed Jamil v. State Transport Authority, Rajasthan (A.I.R 1956 Rajasthan 125). I do not think that the said decision is, in any way, helpful to the petitioner, because in this case as already stated, the petitioner has already been granted the right to run his services in the Kottayam Town roads and what was fixed by the order Ext. P. 5 was only a re-fixation of the starting point and the termini.

13. In the result, the application fails and is dismissed with costs of the 2nd respondent fixed in the sum of Rs. 100/- C.M.P 2251/57 is also dismissed.

Oommen v. Road Traffic Board, Kottayam And Another

Structured Summary of the Opinion (Vaidialingam, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

2nd Respondent's (Swaraja Motors) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Oommen v. Road Traffic Board, Kottayam And Another

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