IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 WP(C).No. 11039 of 2010(D) ---------------------------------------- PETITIONER(S): ------------------------- ALL KERALA TOURIST TAXI OPERATORS ASSOCIATION, REG.NO.T.2846/2002 T.C.20/1114 (1), MANAS NAGAR, HOUSE NO.42, KARAMANA, TRIVANDRUM REP. BY ITS SECRETARY, M.K.RAJAN, S/O.LATE KUNHIRAMAN. BY ADVS. SRI.SAJEEV KUMAR K.GOPAL, SMT.AMBIKA RADHAKRISHNAN. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO TRANSPORT DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. STATE TRANSPORT AUTHORITY TRIVANDRUM REP. BY ITS SECRETARY. 3. SECRETARY, STATE TRANSPORT AUTHORITY, TRIVANDRUM. 4. TRANSPORT COMMISSIONER, TRIVANDRUM. *ADDL.R5 TO R7 IMPLEADED: R5. TRAVEL OPERATORS ASSOCIATION OF KERALA, REG.NO.ER.347/04, 28/1614, K.P.VALLON ROAD, KADAVANTHRA, KOCHI - 20, REPRESENTED BY ITS SECRETARY. (*ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 24/06/2010 IN I.A.NO.8172/2010) Kss ..2/- ..2.... WPC.NO.11039/2010 D R6. P.K.SATHYAN, S/O.NARAYANAN, PANNERIKKOTTU, KALLASSERY, P.O.IRINAVU, KANNUR DISTRICT. R7. A.PADMANABHAN, S/O.KRISHNAN, MUNDERI AMSOM, EACHUR POST, KANNUR DISTRICT. (*ADDL.R6 & R7 ARE IMPLEADED AS PER ORDER DTD. 6/07/2010 IN I.A.NO.8896/2010) R1 TO R4 BY GOVERNMENT PLEADER SRI. BASANT BALAJI ADDL. R5 BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI. ADDL.R6 & R7 BY ADV. SRI.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.RAVINDRAN, J. ---------------------------------------------------- W.P.(Civil) No.11039 of 2010 ---------------------------------------------------- Dated this the 18th day of January, 2011 Judgment In this writ petition, the All Kerala Tourist Taxi Operators Association challenges Ext.P7 circular dated 12.3.2010 issued by the Transport Commissioner to the extent it authorises Regional Transport Offices to accept applications for All India Tourist Taxi Permits and to process them. 2. Under section 88(9) of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act' for short) the authority competent to grant permits in respect of tourist vehicles valid for whole of India or in such contiguous States not being less than three in number including the State in which the permit is issued, is the State Transport Authority. Such power is, however, regulated by the rules framed by the Central Government under sub-section (14) of section 88 of the Motor Vehicles Act. It appears, the State Transport Authority that met on 6.10.2003 decided to delegate the power under section 88(9) of the Act to grant tourist permits to the Regional Transport Officers. Such a decision was taken in exercise of the power rule 138 of the Kerala WPC 11039/10 2 Motor Vehicles Rules. The validity of the said decision was challenged in W.P.(C).No.32027 of 2003. The writ petition was dismissed. The correctness of the said decision was canvassed before a Division Bench of this Court in W.A.No.2153 of 2003 and connected cases. By Ext.P2 judgment delivered on 28.9.2004 the Division Bench held that the power under section 88(9) of the Act which has to be exercised subject to the rules framed under sub- section (14) thereof cannot be delegated by the State Transport Authority in exercise of the power under rule 138 of the Kerala Motor Vehicles Rules. The delegation of the power to issue tourist permits to the Regional Transport Officers was accordingly set aside. It appears, even thereafter applications for tourist taxi permits were not being received by the State Transport Authority. The petitioner thereupon filed W.P.(C).No.5298 of 2005 in this Court. By Ext.P3 judgment delivered on 18.8.2005, a learned Single Judge of this Court held that as Ext.P2 judgment has become final, the State Transport Authority is bound to receive the applications for tourist taxi permits and dispose of them in accordance with law. Shortly thereafter, the State Transport Authority that met on 8.9.2005 ordered as follows: “Considering the decision in the Writ Appeal cited WPC 11039/10 3 above, the STA, Kerala order that (1) Applications for tourist permit shall be received in the Regional Transport Offices and the Sub Regional Transport Offices. (2) The details of the application received shall be forwarded to the State Transport Authority in the prescribed format. (3) The State Transport Authority will consider the applications on merits and the decisions to grant or to refuse Tourist Permit and authorisation will be communicated to the Regional Transport Offices/ Sub Regional Transport Offices. (4) The Regional Transport Officers and the Sub Regional Transport Officers are authorised to authenticate the tourist permit under Rule 132 of the KMV Rules. (5) The records relating to applications received, permits issued, etc. shall be maintained as before. (6) The above order shall come into effect with immediate effect.” The petitioner thereupon filed W.P.(C).No.35305 of 2005 WPC 11039/10 4 challenging the said decision, a copy of which is produced as Ext.P4. It was contended that Ext.P4 is contrary to the judgment of this Court in W.A.No.2153 of 2003 and in gross violation of the statutory provisions. By Ext.P5 judgment delivered on 12.6.2006, a learned Single Judge of this Court held that State Transport Authority cannot impose a stipulation that applications for tourist permits have to be submitted to the Regional Transport Offices. However, in the operative portion of Ext.P5 judgment, the learned Single Judge set aside Ext.P4 only to the extent it authorised the Regional Transport Offices and Sub Regional Transport Offices to authenticate tourist permits and national permits. The learned Single Judge also declared that applications for tourist permits can be filed directly before the State Transport Authority without following the procedure imposed by the State Transport Authority. The operative portion of the said judgment is as follows: “In the aforesaid circumstances, the impugned decision of the STA in so far as it authorises the RTOs and the Sub RTOs to authenticate tourist permits and national permits is set aside and it is declared that any application in terms of Section 88(9) of the Act WPC 11039/10 5 and Rule 82 of the Central Rules in Form 45 can be filed directly before the STA without following the procedure imposed by the STA as per the impugned order and such applications shall be considered and decisions taken by the STA without delay, at any rate, within a period of three weeks of the filing of such applications. The grant of permit shall be by the STA and it shall be issued in such statutory form as is prescribed either under the signature of the STA or the Secretary, STA.” The additional 5th respondent thereupon filed R.P.No.1018 of 2006. By Ext.P6 order passed in R.P.No.1018 of 2006 and connected cases, the learned Single Judge held that if proper guidelines are issued by the State Transport Authority without in any manner, impairing the directions contained in the judgment sought to be reviewed and also in Ext.P6 order, the application forms can be collected and the issued permits with the seal and signature of the Secretary, State Transport Authority can be appropriately distributed, through different Regional Transport Offices. Long thereafter, the Transport Commissioner issued Ext.P7 circular dated 12.3.2010 which has given rise to this writ WPC 11039/10 6 petition. By that circular the Transport Commissioner directed that in terms of the decision taken by the State Transport Authority at its meeting held on 23.2.2010, the Secretary, State Transport Authority can issue all India tourist taxi permits, that applications for all India tourist taxi permits will be accepted through Regional Transport Offices, that the applications will be scrutinised by the Regional Transport Officer who shall receive valid applications and issue acknowledgements to the applicants and take steps to forward the data to the central server so as to enable the Secretary,State Transport Authority to process the applications and to pass orders on them. It is also stated that the permit and authorisation issued by the Secretary, State Transport Authority will be forwarded to the applicants by speed post and a copy to the Regional Transport Officer concerned for information by e-mail. The main contention raised by the petitioner in this writ petition is that the decision taken by the State Transport Authority to accept applications through Regional Transport Offices and to authorise the Regional Transport Officers to process the applications, runs counter to section 88(9) of the Act and the directions issued by this Court in Exts.P2, P3 and P5 judgments. WPC 11039/10 7 3. A counter affidavit dated 13.7.2010 has been filed on behalf of the 4th respondent, the Transport Commissioner, Trivandrum. In paragraphs 8 and 9 thereof it is stated as follows: “8. It is also brought to the notice of this Honourable Court under public demands State Transport Authority, in the meeting held on 23.02.2010 reviewed the existing procedure. In pursuance of the orders of the Honourable High Court in R.P.No.1018/06, 69/07 and COC Nos.1406 & 1497/06 dated 27.02.97, the State Transport Authority decided that the administrative activity leading to the grant of all India Tourist Vehicles permit is to be expedited in the public interest, using the Information Technology of E-mail replacing the existing mode of the applications delivery of the Tourist Vehicles applications at the office of the Secretary, State Transport Authority, Thiruvananthapuram. Therefore the STA took the following decision. “Resolved to direct the RTOs to receive the applicationsfor all services relating to Tourist WPC 11039/10 8 Vehicles, process its validity and endorse its admissibility or otherwise by e-mail within a week from its receipt to the Secretary, STA who is hereby delegated the power to decide on all works relating to Tourist Vehicles vested now with the State Transport Authority u/s 88(9) of MV Act. The Secretary, STA on receipt of such e-mail shall consider and pass appropriate orders within two weeks from the receipt such e-mail and the matter will be replied by e-mail to the RTOs concerned for onward transmission of the permit/decisions to the applicants concerned. The Motor Vehicles Department Officers are also advised to follow up the e-mail communication with a post copy in confirmation.” 9. Thereafter to ensure smooth functioning of revised system and to provide seamless service to the public a circular directions (Exhibit P7) have been issued to RTOs. Such an arrangement is found necessary in public interest to avoid hardships to applicants in traveling to Thiruvananthapuram and to avoid all intermediaries to prevent corruption and WPC 11039/10 9 redtapism. Here, it is again the State Transport Authority that issues permits in office and grants renewal in consonance with the order in W.A.2153/2003 dated 28.08.2004 and the procedure alone is decentralized in public convenience.” It is evident from the counter affidavit filed on behalf of the 4th respondent that the State Transport Authority has not delegated the power conferred on it to issue all India tourist taxi permits or tourist permits. It is evident that the attempt is to streamline the entire process and to ensure that permits are issued expeditiously by avoiding intermediaries and middlemen. From the counter affidavit, it is clear that the directions contained in Ext.P7 have been issued to ensure the smooth functioning of the system and to provide seamless service to the applicants. It is also stated that the permits will be issued and send directly to the applicants by the Secretary, State Transport Authority. The additional 6th respondent has in his application for impleadment taken the stand that Ext.P7 circular is one issued in implementation of the directions in Ext.P6. 4. I heard Sri.Sajeev Kumar K.Gopal, learned counsel appearing for the petitioner, Sri.Basant Balaji, learned WPC 11039/10 10 Government Pleader appearing for respondents 1 to 4 and Sri.K.Jaju Babu, learned counsel appearing for the additional 5th respondent. In Ext.P2 judgment a Division Bench of this Court held that the power under section 88(9) of the Act to issue all India tourist permits or permits valid for contiguous states not being less than three in number including the State in which the permit is issued, cannot be delegated by the State Transport Authority. In the instant case, what is challenged is not such a delegation but the decision taken by the State Transport Authority to authorise Regional Transport Offices at different levels to receive permit applications and authorising the Secretary of the Authority to process the applications and to grant the permits. The delegation of the power by the State Transport Authority to its Secretary is not under challenge. Such delegation is also permissible under rule 138 of the Kerala Motor Vehicles Rules. The petitioner contends relying on the Central Motor Vehicles Rules that an application for the grant of a permit in respect of a tourist vehicle has to be made to the State Transport Authority and therefore the State Transport Authority cannot stipulate that applications can be submitted in the Regional Transport Offices. In my opinion, there is no merit in the WPC 11039/10 11 said contention. The petitioner which is an association of tourist taxi operators cannot contend that all persons aspiring for tourist permits should travel to Trivandrum expending money and submit the application only in the office of the State Transport Authority. Rule 88 does not contemplate such a situation. Therefore, the decision taken by the State Transport Authority that it will receive applications for tourist permits through the Regional Transport Offices cannot be said to be ultra vires the Act or rules or against the decisions of this Court. The acceptance of applications through the Regional Transport Offices does not in any way result in delegation of power by the State Transport Authority in favour of the Regional Transport Officers. As a matter of fact, the learned Single Judge has in Ext.P6 order observed that if proper guidelines are framed, the State Transport Authority can collect applications through different Regional Transport Offices. Likewise, the learned Judge has in Ext.P6 order also observed that permits which have been issued can also be distributed through the Regional Transport Offices. However, Ext.P7 does not permit such a procedure. On the other hand, Ext.P7 directs that permits/ authorisation etc. issued shall be printed and attested by the Secretary, State Transport WPC 11039/10 12 Authority and shall be forwarded to the applicants by speed post and copy by e-mail to Regional Transport Offices concerned for information. I, therefore, find nothing illegal in Ext.P7. Similarly, the challenge to the processing of the applications by the Regional Transport Officers is also without any merit. The Regional Transport Officer only examines the applications, verifies the documents and informs the applicants of the defects, if any. He will also take steps to forward the data furnished in the applications online to the State Transport Authority by e- mail. The applications received online are verified and permits issued by the Secretary of the State Transport Authority. The procedure set out in Ext.P7, according to me, will only help the applicants to rectify the defects and also to take back the original documents after satisfying the Regional Transport Officer that the documents are in order and the application is in tune with the documents. Ext.P7 does not empower or authorise Regional Transport Officers to take a decision on the applications. He only renders help to the applicants by enabling them to ensure that the applications are in order. The stipulations in Ext.P7 are intended only to help the applicants. In the absence of any stipulation in the Act or the rules that applications for tourist WPC 11039/10 13 permits shall not be examined by any one other than the State Transport Authority and no one else shall inform the applicants of the defects, if any, and the steps to be taken to rectify the defects, the petitioner cannot contend that Ext.P7 circular is ultra vires the Act or the rules. The writ petition is in my opinion an abuse the process of the Court and without any merit. The writ petition fails and is accordingly dismissed with costs, which I quantify at Rs.10,000/- payable by the petitioner to the State of Kerala. P.N.RAVINDRAN, JUDGE. srd WPC 11039/10 14