S. Sankarasubban, J.
1. Original Petition is filed challenging Ext, P6 proceedings passed by the second respondent/Regional Transport Authority, Trivandrum. Second respondent decided to grant a regular permit on the route, Poonthura-Pappanamcode in Trivandrum city. But the regular permit was not issued, as the grantee did not produce the current records and because of the pendency of O.P. No. 16137/95 before this Court. The route is reserved for Scheduled Caste and Scheduled Tribe.
2. Thereafter, it was decided to grant temporary permit on theroute. By Ext. P1 dated 18.12.1995, Regional Transport Authority, Trivandrum decided to grant temporary permit for 20 days on the route to the petitioner. On the expiry of the permit, there were two applications; one by the petitioner and the other by the third respondent. Secretary preferred the petitioner on the ground that he is operating on the route. This is evidenced by Ext. P2 order dated 6.1.1996. Subsequently, applications for temporary permit for four months were considered by the Regional Transport Authority. By proceedings dated 8.2.1996 (evidenced by Ext. P3), Regional Transport Authority decided to grant permit to the third respondent on the ground that he has offered latest model vehicle. Ext. P3 proceedings was challenged by the petitioner by filing M.V.A.A. 457/96 before the State Transport Appellate Tribunal, Ernakulam. Appeal was disposed of by Ext. P 4 judgment. Tribunal found that the order passed by the Regional Transport Authority to be defective, but was of the view that it was not necessary to set aside the permit. It directed the Regional Transport Authority and the Secretary to consider the relative merits of the applicants and award marks as required by Rule 145 of the Motor Vehicles Rules and if the permit is not granted in accordance with the marks to specifically state the reasons when they deal with such applications. Both the petitioner and the third respondent challenged Ext. P4 before this Court by filing O.P. No. 9811 /96 and O.P. No. 9471 /96 respectively. In O.P. No. 9471/96 an interim order was passed staying the operation of Ext. P 4 in so far as it fetters the discretion of respondents 1 and 2. Subsequently, both the ^ original petitions were disposed of by judgment dated 21.6.1996. Original Petitions were disposed of by clarifying that the statutory authority will exercise its discretion conferred by the statute uninfluenced by the declaration for any higher authority including the State Transport Appellate Tribunal. In the meanwhile, the permit issued was to expire and hence the second respondent considered the applications for temporary permit and by order dated 27.6.1996 decided to grant the same to the third respondent - Ext. P6. Third respondent was preferred because he secured more marks.
3. Ext. P6 is challenged on various grounds. It was passed in violation of the principles of natural justice as the petitioner was not afforded an opportunity of being heard in the matter. Secretary did not look into the judgment of this Court in the Original Petitions which were filed challenging Ext. P4. It was passed with haste to favour the third respondent. Third respondent does not satisfy the requirement of eligibility for the grant of the permit. According to the petitioner, the documents produced by the third respondent (Exst. P7 and P8) create a suspicion as to the place of business and residence of the third respondent. The marks awarded to the third respondent are not correct. Petitioner lost the opportunity of producing the current records of the latest model vehicle.
4. Third respondent has filed counter affidavit raising the following objections. Ext. P6 order can be challenged in appeal before the State Transport Appellate Tribunal. That is an alternate and efficacious remedy. Power to grant, four months permit has been delegated to the second respondent. No manifest injustice is caused to the petitioner. Vehicle offered by the petitioner is not a permit less vehicle. In view of the judgment in O.P. No. 9471/96 and O.P. No. 9833/96, second respondent is perfectly justified in granting the permit to the third respondent. Petitioner has no residence, office or place of business on the route. So, even if a hearing was given to the petitioner, it would not be of any benefit to the petitioner. Since the permit was to expire on 28.6.1996, second respondent was justified in passing the order on 27.6.1996. There is no violation of any rule. Petitioner is a mere name lender to one Anwar Hussain, whose attempt to operate with the regular permit on the route was unsuccessful. A reply affidavit was filed by the petitioner contending certain allegations made in counter affidavit. jfc
5. Sri K. Radhakrishnan, learned Counsel for the petitioner raised the following contentions: (1) Secretary has no jurisdiction to grant four months permit (2) In so far as both the petitioner and third respondent claimed for the permit, Ext. P6 order should have been passed after hearing the parties. Thus, there has been violation of the principles of natural justice (3) Third respondent did not possess the requisite qualifications for the grant of permit on the route (4) The marks awarded by the second respondent are not correct. Learned Counsel for the third respondent Sri K.C. Sankaran questioned the maintainability of the Original Petition. He contended that there is an alternative remedy. Further, he submitted that for the grant of temporary permit, the procedure prescribed with regard to the grant of regular permit need not be followed. There is no failure of justice and Ext. P6 order was passed in accordance with the Act and the Rules. Ex. R3 (b) judgment grants full discretion to the second respondent to pass the impugned order.
6. First, I shall deal with the question of maintainability of the Original Petition. It is true that an appeal is maintainable under Section 89(1)(a) of the Motor Vehicles Act to the State Transport Appellate Tribunal against Ext. P6 order. Hence, normally, this Court will not entertain a writ petition against Ext. P6 order. But if this Court finds that the order has been in violation of the principles of natural justice putting a party to great disadvantage, this Court will not hesitate to interfere. Further, in this case, second respondent passed the order on the basis of the directions of this Court in Ext. R 3(b) judgment. Hence, I am of the view that the writ petition is entertainable and the petitioner need not be driven to the alternate remedy.
7. Now, I shall go into the contention urged by the petitioner. First contention urged is that the second respondent has no power to grant four month's permit. From a perusal of the files produced by learned Government Pleader, it is seen that Order No. C6/RTA/Tvm/95, the power to grant temporary permit under Section 87 of the Motor Vehicles Act has been delegated to the Secretary. Thus, the contention of the petitioner is to be rejected.
8. Second contention urged is that Ext. P6 order is passed in violation of the principles of natural justice. According to the petitioner, both the petitioner and third respondent should have been heard before Ext. P6 order was passed. Learned Counsel drew sustenance for the above contention from the fact that if the Regional Transport Authority decided the issue, it would have heard the parties in the meeting convened for the purpose. Secretary as the delegate, has to follow the procedure followed by the Regional Transport Authority. He further contended that actually it is a 'lis' between two parties contending for a permit on the route. If the grant of the permit is automatic or if there is only one applicant, a hearing may not be necessary. Where competing claims are considered, the parties should have been given an opportunity to advance their claims and to point out the drawback of the opposite claim. He particularly stressed the inconsistencies between Exts. P 7 and P 8. While in Ext. P 7 it is stated that third respondent is staying in Cherthala, in Ext. P8, it is stated that he is staying in Trivandrum for the last one year. Both the certificates are dated 29.12.1995. Further the qualifications as on the date of the consideration are to be assessed. Thus, an operator may be able to produce current records of a later mode vehicle and also will be able to furnish further informations on the date of consideration of the applications.
9.Learned Counsel for the third respondent and learned Government Pleader contended that temporary permits are granted under Section 87 of the Motor Vehicles Act. This section states that temporary permit can be granted without following the procedure for the grant of regular permit. Further, they submit that temporary permits are issued to meet an urgent necessity and hence no delay can be tolerated. Further, it was contended that Ext. R3(b) judgment directed the authorities to grant permit according to its discretion. Hence, it is not necessary to give an opportunity for hearing.
10. Section 87 of the Motor Vehicles Act deals with grant of temporary permits. Section 87(1) deals With as follows:
87. Temporary permits.-(1) A Regional Transport Authority and the State Transport Authority may without following the procedure laid down in Section 80, grant permits, to be effective for a limited period which shall, not in any case exceed four months, to authorise the use of a transport vehicle temporarily.
Section 80 of the Motor Vehicles Act deals with the procedure for granting regular permits. Relevant clause of Section 80 is as follows:
Provided further that where a Regional Transport Authority refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter.
A perusal of Section 80 of the Motor Vehicles Act shows that no particular procedure is prescribed for granting the permit. This is because after the coming into force of the Motor Vehicles Act, 1988, granting of permit is liberalised. Refusal to grant permit will ordinarily arise if it will affect the number of stage carriage fixed. Proviso to Section 80(2) of the Motor Vehicles Act states that if an application is refused, reasons have to be given and further, an opportunity for hearing should be given. In this context, it is pertinent to note the relevant provisions of 1939 Act. Section 62 of the Motor Vehicles Act dealing with temporary permit is in pari materia with Section 57 of the 1988 Act. Section 57 of the 1939 Act corresponds to Section 80 of the 1988 Act. Relevant portion of Section 57 of the 1939 Act reads as follows:
57(1)....
(2) An application for a stage carriage permit or a public carrier's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates.
(3) On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which and the time and place at which, the application and any representations received will be considered.
Detailed procedure is given in Section 57 of the 1939 Act. Clause (2) fixes a time limit within which the application is to be filed. The substance of the application has to be published in the prescribed manner. Under Clause (4) representations can be filed against the grant. Under Clause (5) when a representation is made, the application has to be disposed of at a public hearing and after giving all the parties an opportunity to be heard.
11. Thus, there is a substantial difference between the old Section 57 and present Section 80. In fact, this has been highlighted by the Supreme Court in Mithilesh Garg v. Union of India 1991 (2)KLT 229 in the following observations
The scheme envisaged under Sections 47 and 57 of the Old Act has been completely done away with by the Act. The right of existing operators to file objections and the provision to impose limit on the number of permits have been taken away. There is no similar provision to mat of Section 47 and Section 57 under the Act. The Statement of Objects and Reasons of the Act shows that the purpose of bringing the Act was to liberalise the grant of permits. Section 71(1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act. Section 80(2), which is the harbinger of liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. There is no provision under the Act like that of Section 47(3) of the Old Act and as such no limit for the grant of permits can be fixed under the Act. There is, however, a provision under Section 71(3)(a) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having population of more than five lakhs.
12. Following the Supreme Court decision, a Division Bench of this Court in The Secretary, Changanacherry T.R.B.T. Co-op. Society Ltd. v. Mathew job and Ors. 1992 (1) KLJ 262, held as follows:
The decision of the Supreme Court in Mithilesh Garg's caseclearly lays down that the existing operations have no right to object to the grant of a permit to a new operator under the new Act 1988. In so far as the decision (in 1991(2) KLT 229) stated that the existing operators have a right to make a representation in respect of the timings to be granted for a new operator, we are in entire agreement with the said decision. If the said decision intended to lay down that the existing operators have a right to object even to the grant of a permit to a new operator, after the commencement of the new Act, we cannot agree with it.
13. Thus, as per the Act; there is no substantial difference between the procedure for granting a regular permit and a temporary permit excepting that under Section 80 when a permit is refused the applicant has to be heard and reasons given for such refusal.
14. Question is whether the Regional Transport Authority can dispense with the hearing in the grant of temporary permit because Section 87 opens by saying 'Regional Transport Authority may grant' without following procedure. The word 'may' has been sometimes understood in the imperative sense and it ordinarily indicates a choice of action and not a command. Normally, the word 'may' is used to grant a discretion and not to indicate a mandatory direction -Sahodara Devi v. Government of India : AIR1971SC1599 . Thus, the mere use of the word 'may' does not rule out the giving of an opportunity for hearing-Discretion has to be exercised by the authority in the facts and circumstances of the case.
15. It is admitted that the consideration of the application for the grant of permit in this case is governed by Rule 145 of the Kerala Motor Vehicles Rules. Since the number of stage carriages are fixed under Section 71(3)(a) detailed procedure is given for considering the application. Applications are first screened and they are liable to be eliminated for any of the disqualifications. Thereafter, eligibility of the candidates is assessed. Marks are given for sector or residential qualification and business or technical experience. If the permit is granted not in accordance with the marks, then, reasons have to be given.
16. It is not disputed that when the procedure Under Rule 145 is exercised by the Regional Transport Authority for the purpose of granting permit under Section 80, the parties are heard. In fact, Rule 123 of me Kerala Motor Vehicles Rules deals with the procedure to be adopted by the Regional Transport Authority. It reads as follows:
123. Meetings of Regional Transport Authority--(1) A Regional Transport Authority may meet once a month on such date, time and place as may be fixed by the Chairman' and also on such other necessary occasions as may be determined by the Chairman for the despatch of business.
(2) Adequate notice of such meetings and of the business to be transacted there at shall be given for the information of such persons who, in the opinion of the Regional Transport Authority or of its Secretary, may reasonably have a claim to be permitted to attend the meeting for the purpose of making representations.
Rule 128 deals with the right of hearing. It reads as follows:
128. Hearing of representations by the Regional Transport Authority--In any case, in which a person has a right to be heard according to the provisions of the Act or of these rules he may appear either in person or by an authorised representative when his personal appearance is specifically required.
17. Thus, when the Regional Transport Authority exercise the procedure Under Rule 145, it hears the parties. Question is whether when such a procedure is followed in granting the temporary permit, an opportunity for hearing should be given. Power to grant temporary permit can be exercised by the Regional Transport Authority. The delegate has also the same power as the principal. I do not find any reason to withhold the right of hearing to the parties in the grant of temporary permit when the same procedure is adopted. Further, the decision to be made by the Regional Transport Authority or the Secretary is to find out who is suitable person and who is the disqualified person. In such a situation, it is always expedient that an opportunity should be given to the parties to meet each others case. Besides, since the order refusing the grant of permit is appealable, it is proper that an opportunity is to be given to the person before refusing his application. It will be difficult for the Appellate Authority to attack the order of the lower authority, if contentions are not advanced before the Secretary. Further, before the Appellate Authority the aggrieved party will have to produce documents to convince that the order of the original authority was bad. If an opportunity is given to the party by the Regional Transport Authority or the Secretary, it would be in compliance with the principles of natural justice. The reason that there was no time to call for the meeting is not acceptable. On a perusal of the files, I find that applications for the grant of permit were filed very early and hence Secretary could have convened meeting before the expiry of the previous permit. Hence, according to me, Ext. P6 order was passed in violation of the principles of natural justice. In the above view of the matter, I am not considering the other contentions advanced by the petitioner.
18. Hence, I quash Ext. P6 order passed by the Secretary, Regional Transport Authority and direct him to consider the applications filed by the petitioner and third respondent within a period of two weeks from today. Third respondent will not get the benefit of operating his service on the basis of Ext. P6. In order to avoid inconvenience to the public, I allow the third respondent to operate his stage carriage on the route in question for two more weeks from today. But even this operation will not give any advantage to the third respondent when his application for temporary permit is considered. Second respondent will consider the applications of the petitioner and third respondent after hearing both of them. If the third respondent is not willing to operate as directed above, petitioner may be directed to operate for two weeks from today. Original Petition is allowed.