KOZHIKODE AUTO RICKSHAW DRIVERS CO-OPERATIVE SOCIETY LTD., KOZHIKODE v. REGIONAL TRANSPORT AUTHORITY, KOZHIKODE

P.N.RAVINDRAN, J.--------------------------------------WP (C) Nos. 31786 of 2011& 2673 of 2012---------------------------------------Dated this the 3rd day of February, 2012 J U D G M E N T WP (C) No. 31786 of 2011The petitioner is a co-operative society registered underthe Kerala Co-operative Societies Act, 1969. It was formedand registered with a view to promote the welfare of itsmembers by providing autorikshaws and employment to them.In this writ petition, the petitioner seeks an order directing therespondents not to grant autorikshaw permits pursuant to GO(P) No.4/2011/ Trans. dated 27.1.2011, otherwise than asprovided for in section 74 (3) (b) of the Motor Vehicles Act,1988. The brief facts of the case are as follows: 2. By G.O(P) No.4/2011/Trans. dated 27.1.2011, issuedunder clause (a) of sub section (3) of section 74 of the MotorVehicles Act, 1988, the Government of Kerala raised the limitfixed for autorikshaws in the city of Kozhikkode from 4,100 to4,337 taking into consideration the increased necessity. TheRegional Transport Authority, Kozhikkode that met on 2.9.2011 WP (C) Nos. 31786 of 2011& 2673 of 2012-2-thereafter framed Ext.P1 guidelines to be followed for grant ofthe permits. As per the said guidelines, 5% of the total numberof permits is set apart for applicants belonging to the scheduledcastes/scheduled tribes, 5% for ex-service men and 5% forwomen. There is also a reservation of 3% of the permits infavour of disabled persons. Various other conditions are alsostipulated in Ext.P1. In this writ petition the petitioner challengesExt.P1 guidelines on the ground that it offends clause (b) of subsection (3) of section 74 of the Act, which sets out the order ofpreference to be followed in the grant of contract carriagepermits, if the other conditions are equal. It is contended thatthe Regional Transport Authority cannot frame the guidelines andthat the State Government alone have the power to frame theguidelines based on which contract carriage permits can beissued. 3. The first respondent has filed a counter affidavit dated4.1.2012 wherein the only defence put forward is that theconditions stipulated in Ext.P1 were laid down in good faith, inorder to allot autorickshaw permits to desiring persons, so as toavoid disputes among the applicants and that a decision was also WP (C) Nos. 31786 of 2011& 2673 of 2012-3-taken to give priority to persons residing in KozhikkodeCorporation limits, persons having driving license and badge andautorickshaws in a good and road worthy condition, valid permit,registration and other documents. The relevant portion of thecounter affidavit is extracted below for easy reference. “As per the G.O.(P) No.4/2011 dated 27.1.2011 theGovernment of Kerala has decided to limit city permit forAutorickshaw as 234; in order to comply with this order, theRegional Transport Authority, Kozhikode considered this matterin its meeting hold on 2.9.2011 vide item 73 and took thedecision produced Exhibit P1 in the Writ Petition. As per the saiddecision the Regional Transport Authority has decided to grantpermit after fixing certain conditions. As per Section 74(3), ofthe Act, the Regional Transport Authority has to follow certainguidelines while granting permits to Autorickshaws, whichincludes the consideration of the financial stability of theapplicant, satisfactory performances as contract carriage etc., inthe present case. It is submitted that the conditions stipulatedin Ext.P1(2) were laid down for consideration of the applicationfor Autorickshaw permits in the city in good faith, in order toallot city Autorickshaw permits to desiring persons, so as toavoid further dispute among the applicants. It was also decidedgive priority residents of Kozhikode co-operation person havingdriving license and badge, Autorickshaws in good, road worthycondition, valid permit registration and other documents andcertain other advantage over outsiders. The petitioner haschallenged this conditions stating that they are in violation ofSection 74(3)b Kerala Motor Vehicles Act. It is submitted thatstipulations were laid down by the the Regional Transport WP (C) Nos. 31786 of 2011& 2673 of 2012-4-Authority to ensure maximum benefits to the Autorickshawdrivers in the city itself and in good faith, with an intention toavoid unnecessary decides between city dwellers and outsides”. 4. I heard Sri.Jacob Abraham, learned counsel appearingfor the petitioner, Sri.G.Gopakumar, learned Government Pleaderappearing for the first respondent and Sri.Devaprasanth, learnedcounsel appearing for the additional second respondent. I havealso gone through the pleadings and the materials on record. TheRegional Transport Authority has in Ext.P1 laid down certainconditions for grant of contract carriage permits. It also reserved18% of the permits to various categories of persons.5. Sub section (3) of section 74 of the Motor Vehicles Act,1988 reads as follows: 3.(a) The State Government shall, if so directed by theCentral Government, having regard to the number of vehicles,road conditions and other relevant matters, by notification in theOfficial Gazette, direct a State Transport Authority and aRegional Transport Authority to limit the number of contractcarriages generally or of any specified type, as my be fixed andspecified in the notification, operating on city routes in townswith a population of not less than five lakhs. WP (C) Nos. 31786 of 2011& 2673 of 2012-5-(b) Where the number of contract carriages are fixedunder clause (a), the Regional Transport Authority shall, inconsidering an application for the grant of permit in respect ofany such contract carriage, have regard to the followingmatters, namely:-(i)financial stability of the applicant;(ii)satisfactory performance as a contract carriageoperator including payment of tax if the applicant isor has been an operator of contract carriages; and(iii)such other matters as may be prescribed by theState Government:Provided that, other conditions being equal, preferenceshall be given to applications for permits from (i)the India Tourism Development Corporation;(ii)State Tourism Development corporation;(iii)State Tourism Departments;(iv)State Transport undertakings;(v)Co-operative societies registered or deemed tohave been registered under any enactment for the time being in force;(vi)ex-servicemen.6. It is in terms of the stipulation contained in clause (a) ofsub section (3) of the Motor Vehicles Act, that the Governmenthave issued GO(P) No.4/2011/Tran. dated 27.1.2011 raising thenumber of autorickshaw permits that can be issued in the city ofKozhikkode from 4,100 to 4,337. Clause (b) of sub section (3) of WP (C) Nos. 31786 of 2011& 2673 of 2012-6-section 74 of the Act stipulates that where the number ofcontract carriages is fixed under clause (a), the RegionalTransport Authority shall in considering the application for grantof the permit in respect of any such contract carriage have dueregard to the (i) financial stability of the applicant; (ii)satisfactory performance as a contract carriage operator includingpayment of tax if the applicant is or has been an operator ofcontract carriages; and (iii) such other matters as may beprescribed by the State Government. The proviso to clause (b)however stipulates that other conditions being equal, preferenceshall be given to applications for permits from -(i)the India Tourism Development Corporation;(ii)State Tourism Development corporation;(iii)State Tourism Departments;(iv)State Transport undertakings;(v)Co-operative societies registered or deemed tohave been registered under any enactment for the time being in force;(vi)ex-servicemen.7. The respondents have no case that the StateGovernment have prescribed the matters to be taken intoconsideration by the Regional Transport Authority while issuing WP (C) Nos. 31786 of 2011& 2673 of 2012-7-contract carriage permits pursuant to the Government orderdated 27.1.2011. The decision taken by the Regional TransportAuthority cannot therefore be sustained for the reason that thepower to prescribe the matters which have to be taken note of bythe Regional Transport Authority is not vested in it, but only inthe State Government. That apart, the Regional TransportAuthority has by the impugned proceedings altered the order ofpreference set out in the proviso to clause (b) of sub section(3) of section 74 of the Motor Vehicles Act. Therefore for thatreason also, Ext.P1 cannot be sustained. So long as theGovernment have not framed and issued any guidelines inexercise of the power conferred on it under sub clause (ii) ofclause (b) of sub section (3) of section 74 of the Motor VehiclesAct, the Regional Transport Authority cannot frame its ownguidelines for the purpose of granting contract carriage permits.It cannot also alter the order of priority provided for in the Act.Even the State Government cannot tinker with the order ofpriority set out in the proviso to clause (b) of sub section (3) ofsection 74 of the Act. In such circumstances, it has to benecessarily held that the guidelines set out in Ext.P1 cannot be WP (C) Nos. 31786 of 2011& 2673 of 2012-8-enforced or followed while granting autorickshaw permitspursuant to G.O(P) No.4/2011/Trans. dated 27.1.2011. 8. I accordingly dispose of the writ petition with a directionto the Regional Transport Authority, Kozhikkode to dispose of theapplications received by it for grant of contract carriage permitsto operate autorickshaws in Kozhikkode city limits, withoutreference to Ext.P1, but in accordance with the stipulationscontained in clause (b) of sub section (3) of section 74 of theMotor Vehicles Act. Needless to say the order of priority set outin the proviso to clause (b) of sub section (3) of section 74 shallalso be followed. Having regard to the fact that more than anyear has passed after the Government raised number of permitsfrom 4,100 to 4,337, the Regional Transport Authority shall takea final decision on the applications for grant of permitsexpeditiously and in any event within two months from the dateon which the petitioner produces a certified copy of this judgmentbefore the Secretary, Regional Transport Authority, Kozhikkode.WP(C) No.2673 of 2012I have by judgment delivered today disposed of WP(C)No.31786 of 2011 wherein, I have directed the Regional WP (C) Nos. 31786 of 2011& 2673 of 2012-9-Transport Authority, Kozhikkode to dispose of applications forgrant of contract carriage permits to operate autorickshaws inKozhikkode city limits in the light of the provisions contained insection 74(3)(b) of the Motor Vehicles Act, 1988. In suchcircumstances no further orders are called for in this writ petitionexcept to direct that the judgment in WP(C) No.31786 of 2011shall govern this case also. Sd/- P.N.RAVINDRAN, JUDGE.rkc// true copy// PA to Judge