Kamala Swaminathan vs The Registering Authority, Motor Vehicles

S.M. Ali Mohammed, J.—The prayer of the petitioner is to issue a Writ of certiorari or any other appropriate Writ, or order or Direction in

the nature of a Writ, calling for the records relating to the order of the respondent in N. Dis. 32005/D4/95 dated 30.5.1995 and to quash the

same.

The petitioner in the affidavit filed in support of the Writ Petition states that she is the registered owner of vehicle TN-07-C-7173. The further

states that the vehicle is covered by a State Wide Contract Carriage permit for omni bus issued by the State Transport Authority, Madras-5. The

seating capacity of the vehicle as mentioned in the permit is 45+1. It is further stated that the petitioner wanted to reduce the seating capacity from

46 to 36 seats and therefore, she made an application dated 9.5.1995 before the Registering Authority (Motor Vehicles) Madras viz., the

respondent herein. Further, the application of the petitioner was returned on 30.5.1995 with the following endorsement.

The applicant is advised to approach the Secretary State Transport Authority Madras in this regard, since the primary was issued by the State

Transport Authority Madras. She is also advised to apply in the prescribed form PVA.

Aggrieved by the same, the petitioner has filed this writ petition.

It is contended by the learned counsel for the petitioner that even though Section 74(2)(iii) of the Motor Vehicles Act, 1988 (herein after

referred to as the Act) deals with the maximum number of passengers and the maximum weight of luggage that may be carried on the vehicles,

there is no provision for filing an application, for varying the conditions with regard to the capacity of number of passengers in the contract Carriage

Vehicle. It is further submitted that Section 80(3) of the Act provides for an application to be made to vary the conditions of any permit only with

regard to inclusion of a new route or routes or a new area or by altering the route or routes covered by it, or in the case of a stage carriage permit

by increasing the number of trips specified or by variation, extension or curtailment of the route or routes or the area. As the petitioner''s permit

relating to a contract Carriage permit, there is no specific provision u/s 80(3) for an application to be made before the Authority, who issued the

permit for variation of seating capacity and necessarily the petitioner has to approach the Registering Authority of Motor Vehicles Act under Rule

306 of the Tamil Nadu Motor Vehicles Rules, 1989. He further submitted that the impugned order returning the application filed by the petitioner is

unsustainable in law. A counter affidavit has been filed on behalf of the respondent wherein it is stated as follows:-

The petitioner had applied for reduction of seating capacity for his vehicles TN07/ C 7173 from 45+1 to 32+1 to this office thus asking for a total

reduction of 13 seats. The Regional Transport Officer cum Registering Authority returned the application to the permit holder to approach the

State Transport Authority, Madras who has issued the permit of the above vehicle.

According to Rule 216 of T.N.M.V. Rules, 1989 any variation of permit condition shall be made in Form PVA and it should be applied in

advance to the concerned permit issuing authority. Only after getting the orders of the concerned authority, the permit Holder can apply in Form

N.A.M.V. to the registering Authority concerned, for necessary alterations in the Registration Certificate of the Vehicle. As per the Form PVA in

item No. 9, necessary provision has been made for reduction or increase of seating capacity. In this case, the permit holder of the above omni bus

should have applied to the concerned permit issuing authority i.e., the State Transport Authority, Madras in advance in Form PVA with prescribed

fee of Rs. 300/- and should have obtained the permission for any variation in the seating capacity before approaching the concerned Registering

Authority for any alteration to his vehicle.

On the basis of the stand taken by the respondent in the counter affidavit, the learned Government advocate submitted that there is ample power

u/s 80(3) of the Act read with Rule 216 of the Tamil Nadu Motor Vehicles Rules, 1989 for variation of the seating capacity and the concerned

authority is the authority which has granted the permit u/s 74 of the Act, viz., the State Transport Authority. Therefore, there is no infirmity in the

impugned order returning the application of the petitioner dated 9.5.1995 to be presented before the concerned authority. I have considered the

contentions of the learned counsel for the petitioner and the respondent. I am unable to accept the contention of the learned counsel for the

petitioner that there are no powers under the Act to enable the State Transport Authority to vary the condition of the permit. In the instant case, the

power of the Regional Transport Authority has been exercised by the State Transport Authority and necessarily the petitioner has to approach the

State Transport Authority which has issued the contract carriage permit u/s 74 of the Act subject to the various conditions of which one of the

condition is the number of seating capacity i.e. 45+1= 46 in terms of Section 74(iii) of the Act. In this connection, Section 74 of the Act, reads as

follows:-

Grant of Contract Carriage permit:-''1) Subject to the provisions of Sub-Section (3), a Regional Transport Authority may, on a application made

to it u/s 73, grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a

permit; provided that no such permit shall be granted in respect of any area not specified in the application.

(2) The Regional Transport Authority, if it decides to grant a contract carriage permit, may subject to any rules that may be made under this Act,

attach to the permit any one or more of the following conditions viz;-

(i) that the vehicles shall be used only in a specified area or on a specified route or routes;

(ii) that except in accordance with specified conditions no contract or hiring, other than an extension or modification of a subsisting contract; may

be entered into outside the specified area;

(iii) the maximum number of passengers and the maximum weight of luggage that may be carried on the vehicles, either generally or on specified

occasions or at specified times, and seasons:

Section 80(3) reads 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 by

altering the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified

maximum or by the variation, extention or curtailment of the route or routes or the area specified in the permit shall be treated as an application for

the grant of a now permit.

Rule 216 of Tamil Nadu Motor Vehicles Rules, 1989 reads as follows:-

Permit variation : (1) Every application for variation of conditions of permit under Sub-section (3) of Section 80 shall be in form PVA

accompanied by the fee as specified in the Table under Rule 279.

(2) On receipt of the application referred to in sub-rule(1)of the Transport Authority may in its discretion vary the permit or any of the conditions

thereof.

(3) The transport authority granting the application for variation shall call upon the holder of the permit to produce, within four months from the

date of receipt of the order sanctioning the variation, the permit, the registration, certificate of vehicle together with valid certificate of fitness and

proof for payment of current tax under the Tamil Nadu Motor Vehicles Taxation Act, 1974 (Tamil Nadu Act 13 of 1974) so as to make entries of

variation in the permit and then fix a date for convening a timings conference where necessary if the permit holder rails to produce the aforesaid

document within the aforesaid period of four months, the transport authority shall revoke the sanction for the variation.

4) The transport authority may delegate to its Secretary the powers conferred on it under sub-rule(3) in cases where the variation is sanctioned by

the Secretary.

5) The powers referred to in sub-rule(3) shall also be exercisable by the appellate or revisional authority, as the case may be in cases where orders

sanctioning variations are passed by such authority.

A combined reading of Section 74 and Section 80(3) of the Act and Rule 216 of the Tamil Nadu Motor Vehicles Rules 1989, it is clear that the

powers to vary the condition of permit is granted to the authority which has issued the permit. I am unable to accept the contention of the learned

counsel for the petitioner to the effect that just because there is no specific mention in Section 80(3) of the Act with regard to variation in seating

capacity, the authority who issued the permit has no power to vary such conditions. Section 80(3) of the Act specifies for the variation of

conditions which will include all the conditions mentioned in the permit Further Section 74(2)(iii) says that one of the conditions that may be

attached to a contract carriage permit is the maximum number of passengers and the maximum weight of luggage carried on the vehicles which

necessary implication include number of seats in a vehicle. As such, the condition with regard to number of seats of the passengers is also covered

under the conditions of permit. Therefore, I am of the view that there is no force in the contention of the Learned counsel for the petitioner. As

mere is no infirmity in the impugned order returning the application of the petitioner for variation in the seating capacity of the permit to be

presented before the State Transport Authority there are no merits in this writ petition. Writ petition, is therefore dismissed. It is open to the

petitioner to represent his application for the variation of the seating capacity of the passengers before the State Transport Authority within weight

weeks from the date of the receipt of the copy of the order, if so advised. No costs