V. Chitambaresh, J.Is the mere pendency of a check report a justifiable reason to refuse renewal of permit, transfer of ownership, endorsement of hypothecation or its deletion, certificate of fitness etc., in respect of a motor vehicle The issue arises in the wake of a circular issued by the Transport Commissioner for scrupulous adherence by all Deputy, Regional and Joint Regional Transport Officers in the State. The first petitioner is an association of stage carriage operators in the State registered under the provisions of the Travancore-Cochin (Literary, Scientific and Charitable) Societies Registration Act, 1955. The second petitioner is a stage carriage operator conducting service on the route Aluva-Chellanam with his stage carriage bearing registration No. KL 41 B 1691. They challenge clauses 20 and 30 of Circular No. 17/2011 issued by the Transport Commissioner on the ground that it places a fetter on the right of the operators to conduct service across the State. Clause 20 is to the effect that the following requests shall not be processed if a check report is pending without final orders passed thereon in respect of a motor vehicle:

(i) Renewal of permit.

(ii) Transfer of ownership.

(iii) Endorsement of hypothecation or its deletion, and

(iv) Certificate of fitness.

Clause 30 is to the effect that a clearance as regards the check report should be obtained by the owner of a vehicle in order to get a certificate of fitness or renewal of registration from the concerned section of the department. The petitioners point out that the proceedings initiated by a check report are seldom finalised early and that the operators cannot afford to wait till its culmination to continue their service. The petitioners also contend that the impugned clauses transgresses into the right of the State Transport Authority and the Regional Transport Authority who alone are empowered to cancel a permit.

2. The sole respondent Transport Commissioner contends that he is competent to issue circulars under S. 213(5)(f) of the Motor Vehicles Act 1988 (the Act) and R. 405 of the Kerala Motor Vehicles Rules, 1989 (the Rules). The circular as a whole acts as a guidance to the subordinate officers in discharging their official duty and that the same is beyond the scope of judicial review. It is asserted that the Writ Petition is premature since no specific instance of any refusal to renew a permit or to issue a certificate of fitness on the basis of the impugned clauses has been indicated. The circular has been issued with the laudable object of minimising the violation of the provisions of the Act and the Rules and that the fundamental rights of the petitioners are not in any way infringed.

3. I heard Mr. P. Deepak, Advocate on behalf of the petitioners and Mr. C.S. Manilal, Senior Government Pleader on behalf of the respondent. The circular issued by the respondent is marked Ext. P1 in the Writ Petition and the format of a check report and charge memo are marked Exts. R1 (a) and R1 (b) in the counter affidavit filed by the respondent.

4. I should at the outset take note of the fact that Ext. P1 circular was issued on 26.8.2011 and that the operation of clauses 20 and 30 thereof was stayed soon after on 12.10.2011 by an interim order in this Writ Petition. Ext. P1 circular in fact starts with an instruction to the officers subordinate to scrupulously follow the same pending proceeding son the basis of a check report in respect of a vehicle. The counter affidavit concedes that clauses 20 and 30 of Ext. P1 circular would have been enforced with all vigour but for the interim order of stay passed in the Writ Petition. There is therefore no gain in saying that the petitioners have to wait till a renewal of permit is refused or a certificate of fitness declined on the basis of a check report for them to impugn Ext. P1 circular. Moreover Ext. P1 circular is not a mere inter-departmental communication or a noting in an administrative file and on the other hand has even been published in the official web site of the respondent. The decisions in Union of India (UOI) and Others Vs. Vartak Labour Union, and Sethi Auto Service Station and Another Vs. Delhi Development Authority and Others, cited by the respondent is distinguishable on that count. I over-rule the preliminary objection of the respondent that the Writ Petition is premature and that Ext. P1 circular is beyond judicial review under Art. 226 of the Constitution of India.

5. The counter affidavit explains that a check report is normally prepared when " instances of rash and negligent driving, use of air horns, non-fitment of speed governors, non-issue of ticket to passengers, trip curtailments etc, are noticed. It is further stated that the checking officer can himself dispose of the check report if the owner/permit holder expresses his willingness to pay the compounding fee on the spot. Otherwise the check report would be despatched to the Regional Transport Officer who has the option to initiate departmental action or launch prosecution proceedings. A charge memo would be served on the owner/permit holder in the case of departmental action who can either furnish his explanation or remit the compounding fee. The failure to respond by the owner/permit holder would result in the check report being placed before the Regional Transport Authority for initiating steps for suspension or cancellation of permit. A period of three months is specified for completing the exercise on the basis of a check report although Ext. P1 circular is silent about the consequences of non-adherence to the time limit

6. The petitioners assert that the time limit of thirty days for finalising a check report is more often honoured by its breach and that instances are many where the matter is kept pending for long. Should the operators be denied the renewal of permit, (transfer of ownership, endorsement of hypothecation or a certificate of fitness during the interregnum disabling them from continuing their service R. 186(b) of the Rules specifies the sum of money to be recovered in lieu of cancellation or suspension of permit having regard to the nature, gravity and frequency of the breach of conditions committed. The sum of money to be paid as compounding fee ranges from Rs. 1,000/- to Rs. 10,000/- depending upon the different classes of permit and the nature of the breach. But Ext. R1(b) charge memo served pursuant to a check report gives an option to compound the offence by paying the maximum sum of Rs. 10,000/- irrespective of the class of permit or the nature of the breach.

7. The further question is as to whether a compounding fee could be remitted in the head of account in any Regional Transport Office even before the owner/permit holder is found guilty of the violation of the Act or the Rules Should not the payment of compounding fee be preceded by a decision of the Transport Authority that the owner/permit holder has committed breach of the conditions R. 186(b) of the Rules is itself categoric that the sum of money can be recovered as compounding fee only in lieu of cancellation or suspension of different classes of permit. I am of the firm view that accepting compounding fee that too at the highest rate of 10,000/- even before a owner/permit holder is found guilty is quite irrational and wholly arbitrary. It has been held in B.T. Thippajja Vs. Regional Transport Authority, that accepting compounding fee in the absence of a prior decision by the Transport Authority is without any jurisdiction. The owner/permit holder for fear of protraction at the hands of the Transport Authority would part with Rs. 10,000/- the moment a charge memo is served pursuant to a check report to facilitate the continuance of his service. Thus clauses 20 and 30 of Ext. P1 circular is nothing but an arm twisting tactics by the respondent to squeeze money from the owner/permit holder without waiting for the culmination of the proceedings.

8. I do feel that clauses 20 and 30 of Ext. P.1 circular impinges upon the power of the Transport Authority to cancel or suspend a permit under S. 86 of the Act read with Rules 185 or 186 of the Rules. Only the State Transport Authority or the Regional Transport Authority as specified under S. 68 of the Act is empowered to cancel the permit under S. 86 of the Act and Rules 185 or 186 of the Rules. The jurisdiction so vested in the Transport Authority cannot be tinkered with by the Transport Commissioner who is not a Transport Authority as specified under S. 68 of the Act. The Transport Authority is exercising a quasi judicial function in the matter of suspension or cancellation of permit under S. 86 of the Act and Rules 185 or 186 of the Rules, The exercise of such quasi judicial function should be left unfettered by any extraneous guidance by the executive or administrative wing of the State and the impugned clauses are clearly an affront in that regard. A Constitution Bench of the Supreme Court in B. Rajagopala Naidu Vs. State Transport Appellate Tribunal and Others, had occasion to observe as follows:

It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi judicial Tribunal is controlled by any such direction, that forges fetters on the exercise of quasi judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well accepted notion of judicial process.

9. Then again this court in Calicut Wayanad Motor Service (P) Ltd., v. State of Kerala (1986 KLT 1216) held that a statutory functionary cannot pressurise another to perform an act not authorised by statute. It was held therein as follows:

The Collector has evinced unjustified though possibly bona fide exuberance of enthusiasm while resorting to a recovery method not sanctioned by law. He cannot by pursuasion or by pressure, make another statutory functionary do an act which that authority does not possess under the statute under which it functions.

I have no hesitation to hold that clauses 20 and 30 of Ext. P1 circular enabling the refusal of renewal of permit or declining the certificate of fitness because of the mere pendency of a check; report is wholly inequitable. The owner/permit holder cannot be kept on tenterhooks awaiting the culmination of the proceedings pursuant to a check report for him to continue the service being operated. Clauses 20 and 30 of Ext. P1 circular would pressurise the owner/permit holder to part with Rs. 10,000/- on receipt of a charge memo even in the absence of a prior decision of the Transport Authority as regards breach. The likelihood of a check report being misused by a checking officer to extract money from the vehicles whose permit is on the verge of renewal cannot at all be overlooked.

Clauses 20 and 30 of Ext. P1 circular are arbitrary and falls foul of Art. 14 of the Constitution of India besides offending the right guaranteed to the operators to carry on the business under Art. 19(1)(g) of the Constitution of India, I quash clauses 20 and 30 of Ext. P1 circular and the other clauses thereof would operate with full efficacy as there is no challenge to the same in this Writ Petition.

The Writ Petition is allowed. No costs.