- (1.) BY this petition, the petitioner has challenged the order granting the Temporary Permit vide order dated 2/3. 12. 1996 copy of which has been annexed at Annexure 'd' to the Writ Petition whereby the Tribunal has been pleased to grant the Temporary Permit under Section 87 (1) (c)and (d) for a period of four months from the date of grant of permit.
(2.) LEARNED counsel points out that the permit which has been granted is to be operative upto 31. 3. 1997. I have heard the Learned Counsel for the petitioner Sri M. R. Venkatnarasimhachar assisted by Sri A. S. P. Kumar for the petitioner as well as Sri A. S. Viswanath for the Respondent no. 2 and Sri Shivayogiswamy Learned Government Pleader. It has been contended before me by the Learned Counsel for the petitioner that this permit which has been granted in favour of respondent No. 2, is illegal and one granted in exercise of jurisdiction not vested. The learned counsel for the petitioner submitted before me that no Temporary Permit can be granted under the Act except in the conditions which may be covered under Section 87 of the Act. The Learned counsel further submitted that under Section 87 a Temporary Permit can be granted only in case of conditions being established under the provision and for a time limit is for a period of four months. There is no provision under the Motor Vehicles Act for renewal of a Temporary Permit. Sri Achar further contended that once a Temporary Permit granted, expires after four months and then it cannot be renewed there is no question of Temporary Permit being granted or renewal in continuity from time to time. Learned Counsel for the petitioner contended that the Temporary permit could not be granted in continuation of long period extending period of four months prescribed under the Act and/or in continuation the temporary permit granted. Grant of temporary Permits in continuation extending its durability beyond four months is nothing but the abuse" of law. The Learned Counsel for the petitioner further contended that petitioner being a holder of a regular permit on the route from one point to the other he could not be granted a temporary Permit for another route or by extending of the route covered by the original permit in the form of a Temporary Permit. In such a case the permit holder should apply for either modification of the conditions of the permit or for a fresh regular permit for that route. Learned counsel contended that in view of the facts of the present case the permit holder should have sought the granting of regular permit instead of Temporary permits in continuation. The Learned counsel contended that the conditions and the circumstances in which regular permit can be granted are distinct from the conditions in which the Temporary permit is granted. The Learned counsel for the petitioner further contended those conditions could not be said to come within the four corners of Section 87 of Motor Vehicles Act, 1988. It is further contended that as the application for regular permit or extension of variation of conditions under the regular permit has been rejected. A Temporary Permit seems to have been granted and renewed on the pretext of pendency of application for extension of Regular permit. The Learned Counsel for the petitioner emphatically contended that no Temporary Permit could be granted during the pendency or consideration of application for grant of a regular permit or for a variation of conditions regarding extension of route for consideration. The Learned Counsel for the petitioner in support of his contention placed reliance on the following decisions: A VISWANATHAN v. STATE transport APPELLATE TRIBUNAL, PONDICHERRY AND ANR. , AIR1987 SC 731 , JT1987 (1 )SC 369 , 1987 (1 )SCALE249 , (1987 )2 scc63 , [1987 ]2 SCR179 , 1987 (1 )UJ621 (SC ), he also made reference to decisions of hon'ble Supreme Court in the case of THE MADHYA PRADESH STATE ROAD transport CORPORATION, BAIRAGARH, BHOPAL v. B. P. UPADHYAYA, regional TRANSPORT AUTHORITY, RAIPUR AND ORS. , AIR1966 SC 156 , [1965 ]3 SCR786. The Learned Counsel for the petitioner further made reference to the decision of the Supreme Court in case of GANDHARA TRANSPORT company v. STATE OF PUNJAB, AIR1964 SC 1245 , [1963 ]supp (1 )SCR800 and decisions of the Supreme Court in the case of ANDHRA PRADESH state ROAD TRANSPORT CORPORATION v. K. VENKATARAMI REDDY AND ORS. , (1971 )3 SCC803. The Learned Counsel further made reference to the decision of the Calcutta High Court in the case of SANJIT KUMAR SARDAR AND ORS. v. STATE OF WEST BENGAL. AND ORS. , AIR1996 Cal 135 , (1996)1 CALLT25 (HC ), 100 CWN489. The Learned Counsel for the petitioner made reference to decisions of this court also with reference to his contention that a Temporary permit could not be granted in favour of a petitioner on permanent permit namely the decision of the Learned Single judge in the W. P. No. 4988/84 decided on 23. 3. 1984 and to the Division Bench decision in the case of SRI GAJANANA MOTOR TRANSPORT COMPANY LIMITED v. SECRETARY, regional TRANSPORT AUTHORITY, SHIMOGA, W. A. No. 1087/84 DD 12. 6. 1984. No other case has been referred by the petitioner's counsel Sri Achar. No other contention has raised by him.
(3.) THE contentions raised on behalf of the petitioners by Sri Achar have hotly been contested by the Learned Government Pleader as well as by Sri A. S. Viswanath. The Learned Counsel for the respondent Sri Viswanath submitted that his Lordship the Supreme Court in the case cited by the petitioner's counsel itself namely Madhya Pradesh State Road Transport Corporation case has interpreted the similar expressions used in Section 62 of Act of 1939 namely particular temporary need and has taken the view that along with the particular permanent requirement or need of a Permanent permit, need for a Temporary Permit can also co-exists. Sri Vishwanath contended that in this decision, their lordships have further interpreted the expression "in Any case" used in Section 62 of Act of 1939 as well as Section 87 of the Act of 1988 and have taken the view that it does not mean that if the Regional Transport Authority grants a second temporary permit or a third Temporary permit in continuation then that will become illegal or invalid ipsofacts or that the permit shall always be treated illegal. Learned Counsel for the respondent-Legal Representatives contended it has laid it down there should not be any abuse of the process or provisions of the law. Such cases, if any apart, if the circumstances do require a second time temporary permit and third permit to be granted it may be granted. But at any one time when temporary permit is granted it should not be for a period more than that of 4 months in one instance. He contended that this view of the Supreme Court has not been over-ruled by any subsequent Supreme Court decision, and it operates. The Learned Counsel contends that when need for a permanent permit exists, and the need for a temporary permit can also exists. It cannot be said that a person holding permanent or regular permit cannot be granted a temporary permit. Sri Viswanath contended that the cases relied by the Learned Counsel for the petitioner i. e. , 1987 Supreme Court 731 is three judges decision and no doubt it is a latter one but as the earlier four judges decision has not been considered in this case. The four judges decision of supreme Court is binding. The Learned Counsel for the respondent contended that the decision in the case of GANDHARA TRANSPORT COMPANY is not on the point involved and it is distinguishable. The Learned Counsel for the Respondent further urged that the two decisions of this court in W. P. 4988/84 and in W. A. 1087/84 are distinguishable and not applicable. Sri viswanath they contended that when the application for grant of permit or for extention of the route and the variation of the condition of the permit of the petitioner had been pending for consideration for a long time and the petitioner had come before this court in an earlier Writ petition namely, W. P. No. 24784/96, this court had the occasion to consider the matter at length and this court had taken the view that if the application for permanent or Regular permit is pending consideration and cannot be disposed off for one reason or another. It is open to the regional Transport Authority, on an application for grant of Temporary Permit to grant temporary Permit under the cover of Clause (c) or (d) of Section 87 of the Act that is the temporary need. Temporary needs may be of varieties and of various nature, which may also include the need of granting Temporary Permit pending disposal of the application for grant of regular Permit or grant of extension of the route and the modification of the conditions. The learned Counsel contended as in the present case the second respondents application had been pending since long for grant of Regular Permit or variation of the condition of the permit by extention of the route it was open to the Respondent No. 1 that the Transport authority to grant that permit as well in view of the law laid down by the Supreme Court in the case of Madhya pradesh Road Transport Corporation v. B. P. Upadhyaya.;