IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.07.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.1126 of 2010 & M.P.No.2 of 2010 P.S.Shanmugasundaram ... Petitioner Versus 1.The Regional Transport Authority, Erode District, Erode. 2.The State Transport Appellate Tribunal, Chennai, High Court Buildings, Chennai – 104. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of certiorarified mandamus, calling for the records of the second respondent made in Appeal No.74 of 2009 dated 05.11.2009, confirming the order of the first respondent made in proceedings No.4047/A/2009 dated 25.02.2009 and quash the same and direct the first respondent to renew the fitness certificate of the vehicle bearing Registration No.TCG 3115 permitted to ply on the route Kodumudi Busstand to Nadupalayam and further direct the first respondent to receive the renewal application of the petitioner dated 22.01.2009 in respect of the above vehicle, plying on the route Kodumudi Bus Stand to Nadupalayam and dispose the same in accordance with law. For Petitioner : Mr.M.Palani For Respondents: Mrs.Lita Srinivasan Government Advocate - - - O R D E R The petitioner is a single mini bus operator. The first respondent granted mini bus permit to the petitioner by an order dated 17.02.2004 for five years from 17.02.2004 to 16.02.2009 to ply on the route Kodumudi Bus Stand to Nadupalayam in respect of the bus https://hcservices.ecourts.gov.in/hcservices/ bearing Registration No.TCG 3115. 2. The fitness certificate expired on 24.11.2005. Since there was some major repair works, the petitioner was not able to keep the bus fit so as to operate on the road. The bus was admittedly not operated after 24.11.2005. Being a single bus operator, the petitioner was in a bad financial condition and therefore he was not able to carry out the major repair works immediately. He handed over the bus to one Sri Balaji Coach (Labour Works) to carry out the repair works. 3. With great difficulty, the repair works were carried out and it is stated that huge amounts were spent to carry out the major repair works. Thereafter, he made an application dated 22.01.2009 to the Regional Transport Authority, Erode seeking renewal of fitness certificate, indicating that he proposed to transfer the name after renewal of the fitness. By another application dated 22.01.2009, he sought renewal of permit. Since he was not able to operate the vehicle, he incurred heavy loss and that he wanted to transfer the vehicle. 4.On receipt of the application for renewal of fitness certificate, the first respondent issued a show-cause notice dated 09.02.2009, complaining that the petitioner contravened Section 84(a) of the Motor Vehicles Act 1988, shortly "the Act" read with Rule 172(6) of the Tamil Nadu Motor Vehicles Rules 1989, shortly the "Rules" and proposing to cancel the permit. The petitioner submitted his explanation on 10.02.2009. 5.However, the first respondent passed an order dated 25.02.2009 cancelling the permit under Section 86(1)(a) of the Motor Vehicles Act, 1988 stating that the cancellation was for the violation of Section 84(a) of the Motor Vehicles Act 1988 read with Rule 172(6) of the Tamil Nadu Motor Vehicles Rules 1989, by the petitioner. 6.The petitioner preferred an appeal before the second respondent-State Transport Appellate Tribunal against the order of the first respondent dated 25.02.2009. The Appellate Tribunal passed an order dated 05.11.2009, in Appeal No.74 of 2009, confirming the order of the first respondent. The second respondent proceeded on the basis that the petitioner ceased to own the vehicle and that therefore he could not claim the relief. 7.In the meantime, the application dated 22.01.2009 seeking renewal of permit was returned by the Regional Transport Officer, Erode, vide order dated 09.10.2009 on the ground that the same could be considered subject to the result of the appeal that was preferred by the petitioner against the order dated 25.02.2009 of the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 8.The petitioner has now filed the present writ petition seeking to quash the order dated 25.02.2009 of the first respondent and the order dated 05.11.2009 of the second respondent and for a consequential direction to the first respondent to renew the fitness certificate of the vehicle bearing Registration No.TCG 3115 and for further direction to the first respondent to receive the renewal application of the petitioner dated 22.01.2009 in respect of the above vehicle, to ply on the route Kodumudi Bus Stand to Nadupalayam. 9.Notice of motion was ordered on 25.01.2010. 10.Heard Mr.M.Palani, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents. 11.The learned Government Advocate made her submissions based on instructions. 12.The learned counsel for the petitioner submits that the impugned order dated 25.02.2009 is without jurisdiction. According to the learned counsel for the petitioner, Section 84(a) of the Motor Vehicles Act, could not be applied in this case. It is submitted that Section 84(a) prohibits operation of vehicle on the road without fitness certificate. Since the petitioner did not operate the bus without fitness certificate, Section 84(a) could not be invoked to cancel the license. Alternatively, the learned counsel submits that cancellation of permit is not proper punishment that could be imposed on the petitioner. According to him, the punishment of cancellation of permit is an extreme and too severe a punishment, disproportionate to the delinquency alleged. The learned counsel for the petitioner heavily relies on Section 86 (5) of the Motor Vehicles Act read with Rule 206 of the Tamil Nadu Motor Vehicle Rules, in this regard. According to him, by taking into account the circumstances of the case and the gravity of offence and more particularly, the economic situation of single bus operator, the punishment could be modified by collecting fine as provided under Section 86 (5) of the Motor Vehicles Act read with Rule 206 of the Tamil Nadu Motor Vehicle Rules. 13. The learned counsel for the petitioner also relies on a Division Bench Judgment of Andhra Pradesh High Court in Y.Babji Vs. T.Khadgadera Rao and others reported in 2000(1) ALT 1 and the judgment of a learned single Judge of this Court in W.P.Nos.5559 to 5563 of 2004 dated 14.11.2006, following the said judgment. 14. The learned counsel for the petitioner further submits that the new Act, viz., the Motor Vehicles Act, 1988 contemplates https://hcservices.ecourts.gov.in/hcservices/ grant of permit without any restriction. There is no use in cancelling the permit, particularly, in the facts and circumstances of the case. 15. On the other hand, the learned Government Advocate submits that the petitioner already sold the bus to one Mrs.S.Kalaivani and that therefore the petitioner could not agitate against cancellation of permit. The learned Government Advocate further submits that the order dated 25.02.2009 passed by the first respondent was on the application dated 22.01.2009 preferred by the petitioner seeking renewal of fitness certificate. According to the learned Government Advocate, the period of permit was for 17.02.2004 to 16.02.2009. Now the permit is cancelled. Therefore, the petitioner could not seek for renewal of permit. 16. I have considered the submissions made on either side and perused the materials available on record. 17. The very first submission of the learned counsel for the petitioner is that the impugned order of the first respondent dated 25.02.2009 is without jurisdiction, as Section 84(a) of the Motor Vehicles Act, 1988 could not be invoked in this case. Section 84 of the Act is extracted here-under:- "84. General conditions attaching to all permits.-The following shall be conditions of every permit- (a) that a vehicle to which the permit relates carries valid certificate of fitness issued under Section 56 and is at all times so maintained as to comply with the requirements of this Act and the rules made thereunder; (b) that the vehicle to which the permit relates is not driven at a speed exceeding the speed permitted under this Act; (c) that any prohibition or restriction imposed and any fares or freight fixed by notification made under Section 67 are observed in connection with the vehicle to which the permit relates; (d) that the vehicle to which the permit relates is not driven in contravention of the provisions of Section 5 or Section 113; (e) that the provisions of this Act limiting the hours of work of drivers are observed in connection with any vehicle or vehicles to which the permit relates; (f) that the provisions of Chapters X, XI, and XII so far as they apply to the holder of the permit are observed; and https://hcservices.ecourts.gov.in/hcservices/ (g) that the name and address of the operator shall be painted or otherwise firmly affixed to every vehicle to which the permit relates on the exterior of the body of that vehicle on both sides thereof in a colour or colours vividly contrasting to the colour of the vehicles centered as high as practicable below the window line in bold letters." The learned counsel relies on the first portion of Section 84(a) of the Act and submits that there is a prohibition for operating a vehicle without fitness certificate. According to him, since he did not operate the vehicle without fitness certificate, this could not be invoked. It is his case that the petitioner did not commit any violation on Section 84(a) of the Act. 18.In my considered view, the interpretation placed by the petitioner on Section 84(a) of the Act is not correct. The learned counsel for the petitioner has conveniently omitted to read the second portion of the 84(a) of the Act which mandates that the fitness of the vehicle has to be maintained through out and that whenever the vehicle could not be operated, permission should be obtained from the competent authority to take off the road the vehicle as per Rule 172(6) of the Tamil Nadu Motor Vehicles Rules. Admittedly, the petitioner did not seek permission under Rule 172 (6). The authority is empowered to permit the petitioner to keep off the road the vehicle. Therefore, it cannot be said that the petitioner has not violated Section 84(a) of the Motor Vehicles Act. Thus, the argument of the learned counsel for the petitioner does not merit acceptance. 19.The next submission of the learned counsel for the petitioner is that the impugned order was passed under Section 86(1) (a) of the Act, cancelling the permit, while the petitioner sought renewal of fitness certificate as well as renewal of permit. It is true that he did not seek permission of the authorities to keep off the road the vehicle as contemplated under Rule 172(6) of the Tamil Nadu Motor Vehicles Rules. However, the learned counsel submits that Section 86(5) of the Act read with Rule 206 of the Rules contemplates awarding of lesser punishment in lieu of cancellation in proper cases. According to him, this is a proper case wherein discretion ought to have been exercised by the authorities under section 86(5) of the Act read with Rule 206 of the Rules. Sections 86(1) and 86(5) of the Act and Rule 206 of the Tamil Nadu Motor Vehicles Rules are extracted here-under:- "86.Cancellation and suspension of permit.- (1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it https://hcservices.ecourts.gov.in/hcservices/ thinks fit- (a) On a breach of any condition specified in Section 84 or of any condition contained in the permit, or (b) If the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or (c) If the holder of the permit ceases to own the vehicle covered by the permit, or (d) If the holder of the permit has obtained the permit by fraud or misrepresentation, or (e) If the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purpose for which the permit was granted. (f) If the holder of the permit acquires the citizenship of any foreign country. Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation. (2) The transport authority may exercise the powers conferred on it under sub-section (1) in relation to a permit granted by any authority or person to whom power in this behalf has been delegated under sub-section (5) of Section 68 as if the said permit was a permit granted by the transport authority. (3) Where a transport authority cancels or suspends a permit, it shall give to the holder in writing its reasons for the action taken. (4) The powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit may be exercised by any authority or person to whom such powers have been delegated under sub-section (5) of Section 68. (5) Where a permit is liable to be cancelled or suspended under clause (a) or clause (b) or clause(e) of sub-section (1) and the transport authority is of opinion that having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit if the holder of the permit agrees to pay a certain sum of money, then, notwithstanding anything contained in sub-section (1), the transport authority may, instead of cancelling or suspending the permit, as the case may be, recover from the holder of the permit the sum of money agreed upon. (6) The powers exercisable by the transport authority under sub-section (5) may, where an appeal has been preferred under Section 89, be exercised also by the appellate authority. https://hcservices.ecourts.gov.in/hcservices/ (7) In relation to a permit referred to in sub- section (9) of Section 88, the powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit, may be exercised by an transport authority and any authority or persons to whom power in this behalf has been delegated under sub-section (5) of Section 68, as if the said permit was a permit granted by any such authority or persons. Rule 206. Compounding of offences.- The Transport Authority shall in determining the sum of money to be recovered in lieu of cancellation or suspension of different classes of permits, have regard to the following namely:- (a) nature, gravity and frequency of the offence committed; (b) the quantum of punishment that would otherwise have been imposed; and (c) earning capacity of the vehicles with reference to the nature of the route and passenger capacity in the case of stage carriage and average daily kilometreage of the vehicle and hire charges, if any, in respect of other classes of transport vehicles: Provided that the amount so recoverable in lieu of suspension shall in no case be less than the minimum or more than the maximum specified in the table below:- THE TABLE Sl .N o Class of vehicle (1) Minimum per day of suspension (2) Maximum for the whole period of suspensio n (3) 1 Stage carriage- (a) For plying without a tax or permit or for overload ... (b) For other offences ... 300 100 9,000 3,000 https://hcservices.ecourts.gov.in/hcservices/ Sl .N o Class of vehicle (1) Minimum per day of suspension (2) Maximum for the whole period of suspensio n (3) 2 Goods carriage- (a) For plying without a tax or permit or for overload ... (b) For other offences ... 100 50 5,000 1,500 3 Contract carriage- (a) Maxicab ... (b) Taxis (big, medium and baby)... (c) Autorickshaws ... 100 100 100 1,000 500 500 4 Omni buses including luxury tourist coaches and omni buses covered by private service permit- (i) for plying without payment of tax or permit or for overload ... (ii) for other offences ... 500 200 10,000 5,000 Provided further that the Transport Authority while determining the amount so recoverable in lieu of suspension shall specify in its order, making the permit holder to pay the compounding fee within 15 days from the date of determination failing which the cancellation or the suspension of permit shall be given effect to. The Transport Authority or the Secretary of the Transport Authority, if so authorised by the Transport Authority, may if satisfied on an application made to it in writing by the permit holder within the period of 15 days aforesaid, that there is sufficient ground, grant an extension of time not exceeding 45 days in aggregate to pay the compounding fee: Provided also that where orders of suspension https://hcservices.ecourts.gov.in/hcservices/ could not be given effect for the reason that the vehicle concerned is not covered by valid certificate of fitness or for any other reasons, the compounding fee shall be recovered notwithstanding the time limit prescribed above: Provided also that where the major punishment of cancellation of permit has been imposed, the minor punishment of suspension of the permit for some other offense, shall not be insisted to be implemented before actual cancellation of the permit and the permit holder shall not be required to compound the fee in lieu of suspension." 20.As rightly contended by the learned counsel for the petitioner, Section 86(5) grants discretion to the Authority to modify the punishment of cancellation in proper case, taking into account entire circumstances of the case. The word "having regard to the circumstances of the case" is used in Section 86(5) of the Act. Taking into account the circumstances of the case, the authorities could impose fine in lieu of cancelling the permit. Rule 206 of the Tamil Nadu Motor Vehicle Rules contemplates compounding of offences, by imposing of fine in lieu of cancellation taking into account (a) nature, gravity and frequency of the offence committed; (b) the quantum of punishment that would otherwise have been imposed; and (c) earning capacity of the vehicles with reference to the nature of the route and passenger capacity in the case of stage carriage and average daily kilometreage of the vehicle and hire charges, if any, in respect of other classes of transport vehicles. 21. As rightly pointed out by the learned counsel for the petitioner, taking into account the entire circumstances of the case, I am of the considered view that cancellation should not be the only option left to the authorities. The learned counsel has correctly brought to my notice Sections 86(1)(b), 86(1)(d) and 86(1) (e) of the Motor Vehicles Act. According to him, those are all grave offences. Sections 86(1)(b), 86(1)(d) and 86(1)(e) of the Motor Vehicles Act were extracted above. 22. The violation of Section 84(1)(a) of the Motor Vehicles Act read with Rule 172(6) of the Tamil Nadu Motor Vehicle Rules committed by the petitioner could not be compared with other offences contemplated in Sections 86(1)(b), 86(1)(d) and 86(1)(e) of the Motor Vehicles Act. Likewise, it is a first time that the petitioner committed this offence. Taking into account that the petitioner is a single bus operator and the nature of the offence and that it was the first time he committed the offence, the punishment of cancellation of permit is too harsh. https://hcservices.ecourts.gov.in/hcservices/ 23. Taking into account the entirety of the circumstances, I am of the considered view that the cancellation of permit has to be modified into fine as provided under Section 86(5) of the Act read with Rule 206 of the Rules. However, the order of the first respondent was confirmed by the second respondent without taking into account the aforesaid relevant factors. The second respondent proceeded on the basis that the petitioner ceased to own the vehicle and that therefore he could not claim the relief. Though the petitioner proposed to sell the vehicle, the same did not takes place. As rightly contended by the learned counsel for the petitioner, the insurance certificate enclosed at page No.9 of the typed-set of papers makes it clear that the same stands in the name of the petitioner. Furthermore, the financier with whose assistance the petitioner purchased the vehicle gave "no objection certificate" on 22.01.2009 for renewal of permit. He could not sell and transfer the permit without settling the financier. Admittedly, no transfer took place and registration certificate also stands in the name of the petitioner. 24. In view of the financial crisis, it is true that the petitioner obtained some financial assistance from one Mrs.S.Kalaivani and assured her to sell the vehicle after renewal of the fitness certificate as well as renewal of permit of the vehicle. That is, after renewal of fitness certificate and renewal of permit, the petitioner proposed to sell the vehicle along with permit. 25. At this juncture, the learned counsel for the petitioner has brought to my notice the legislative policy that was brought about Sections 72 and 80 of the Motor vehicles Act, 1988. According to Sections 72 and 80 of the Motor Vehicles Act, 1988, permits are now granted to all the persons, who sought for. If that is the statutory policy of the new Motor Vehicles Act, 1988, there is no use in refusing to cancel the permit, particularly when the petitioner repaired the vehicle after spending huge amount and applied for renewal of fitness certificate and also sought renewal of permit. 26. Furthermore, the learned counsel for the petitioner has brought to my notice Rule 181 of the Tamil Nadu Motor vehicles Rules which is in pari material with Rule 192 of the Andhra Pradesh Motor Vehicle Rules. A person, who has been granted permit, has to produce the vehicle within three months. Suppose, if the person fails to produce the vehicle, the permit could be revoked. The revocation of permit was put to challenge and the Division Bench of the Andhra Pradesh High court considered the same in Y.Babji Vs. T.Khadgadera Rao and others reported in 2000(1) ALT 1. The following passage of the said judgment on the charge in the legislative policy by way of Sections 72 and 80 of the Motor Vehicles Act is relevant https://hcservices.ecourts.gov.in/hcservices/ for this case and the same is extracted here-under:- "Cancellation of the permit at this stage would be against the public interest specially when the appellant does not suffer any substantial injustice. In view of the revised policy under the Motor Vehicles Act to grant permit to as many number of persons who apply to facilitate the public as observed in Mithilesh Garg Vs. Union of India it would be a mere ritual to set aside the impugned order under appeal and permit the petitioner to apply afresh for grant of permit and to issue the same in compliance with Rule 192 of the Rules. Since in view of the peculiar facts and circumstances of the case we are of the opinion that the appeal does not call for any interference in the discretion exercised by the learned Single Judge doing substantial justice, we keep all the questions raised by the appellant open to be decided in appropriate case." The said judgment was followed by a learned Single Judge of this Court in W.P.Nos.5559 to 5563 of 2004 dated 14.11.2006 27. Taking into account the entire circumstances of the case, I am of the considered the view that the impugned orders are to be interfered with and accordingly, the impugned orders are quashed. It is a fit case, wherein Section 86 (5) of the Motor Vehicles Act read with Rule 206 of the Tamil Nadu Motor Vehicle Rules has to be invoked and the punishment of cancellation of permit has to be modified into that of fine as provided under Section 86 (5) of the Motor Vehicles Act read with Rule 206 of the Tamil Nadu Motor Vehicle Rules. 28. The learned counsel for the petitioner, at this juncture, submits that the Tamil Nadu Motor Vehicle Rules contemplates maximum fine of Rs.9,000/- and that, he is willing to pay the maximum fine. Thus, the punishment of cancellation of permit imposed under the impugned order is modified into that of fine and the petitioner is directed to pay the sum of Rs.9,000/- within a period of 30 days from the date of receipt of a copy of this order. On such payment of fine being made,