In The Land Transport Appeals Tribunal
Sitting At Nausori

Appeal #’s 35 of 2006 and
36 of 2006.

Between:

Rajendra Deo Prasad
Appellant

And:

Land Transport Authority
1st Respondent

And:

Prem Chand and Sons T/A Dwarka Buses Limited
Prem Chand and Sons Limited
Parmod Enterprises
Interested Parties

Appearances/Representations:
For Appellant: Mr. Ramesh Prakash (at the Time of the Hearing) – Currently Mr A. Pal
For LTA: Mr. Seremaia Waqainabete (at time of Hearing) – Currently Mr Stephens. 
For Interested Party: Mr. Viren Kapadia (Parmod Enterprises)

Judgment

Introduction

These Appeals were heard by the previous Tribunal (Mr Bale) on 13th April 2009 and the judgments for these matters were on notice. When the matter was called before the current Tribunal the parties agreed that this Tribunal peruse the records and minutes of the previous Tribunal together with all documents and deliver a judgement in the two pending appeals.

The two appeals arise from a decision of the LTA dated 9th August 2006 and communicated via letter dated 16th August 2006 to reissue and transfer road route permit 12/23/52 (permit no.52) and transfer road route permit 12/23/24 (permit no. 24) from Prem Chand and Sons trading as Dwarka Buses to Parmod Enterprises Limited.

Appeal No. 35 of 2006

Is the appeal against the decision of 16th August 2006 whereby LTA granted an application for transfer of a Road Permit (Road Route License 12/23/52) from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited and also approved the re-issue of Road Route License 12/23/52. 

13 grounds of appeal were listed in the notice of appeal filed on 30th August 2006 as follows:

“1.	THAT the Authority erred in proceeding to hear the application for Transfer of Road Route Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granted the application when;

a.	The Authority had earlier heard the same application on the 16th of February 2006 and decided as follows;

“1.	The status quo remains – Parmod to continue with the existing services until further notice

1.	Issue a temporary licence for three months
2.	Management to advertise “Expression of Interest” and interested parties to apply”

b.	The Authority did not set aside or revoke its earlier decision of 6th March 2006 and it failed to implement it by not calling any “Expression of Interest” in accordance with the said decision.

c.	The Authority acted unreasonably and did not pay any heed to its earlier decision of 6th March 2006 and totally ignored it without any lawful justification. 

2.	THAT the Authority erred in proceeding to hear the application for Transfer of Road Route Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granting the application when an appeal (being Appeal No. 19/06) had been filed against its earlier decision of 6th March 2006 and;

a.	Which appeal remained pending and/or had not been properly or lawfully disposed and/or properly or lawfully discontinued or withdrawn,

b.	Directions where given by the Land Transport Appeals Tribunal on the 24th April 2006 on the future conduct of the said appeal,

c.	That little or no weight was given to submissions of the Appellant in objecting to further hearing of the application, and 

d.	The Authority made an error of jurisdiction and/or exceeded its jurisdiction in hearing the application for Transfer of Road Service Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granting the application 

3.	THAT the Authority erred in proceeding to hear the application for Transfer of Road Route Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granting the application when;

a.	the application before the Authority was defective in form and substance and did not comply with the Land Transport Act and the Regulations,

b.	the Appellant was not provided with full disclosures of all materials, documents and reports relied on by the Authority at the hearing and the decision of the Authority has been arrived at unfairly and/or unreasonably. 

4.	THAT the Authority erred in proceeding to hear the application for Transfer of Road Route Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granting the application without deciding upon another application that was before the Authority for Transfer of Road Service Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarka Buses Limited to Prem Chand and Sons Limited. 

5.	THAT the Authority erred in failing to give any or any adequate reasons for its decision of 16th August 2006 to transfer the Road Route Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited;

6.	THAT the Authority erred in granting the application to transfer the Road Route Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited when at the date of hearing of the application the business and/or firm registered as Prem Chand and Sons had ceased its operations and had given a Notice of Cessation under the Registration of Business Name Act[Cap.218];

7.	THAT the Authority erred in granting the application to transfer the Road Route Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited without having the said permit properly and/or lawfully re-issued in accordance with the requirement of the Land Transport (Public Service Vehicles) Regulations 2000;

8.	THAT the Authority erred in failing to give any or any adequate reasons for its decision of 16th August 2006 to re-issue the Road Route Licence No. 12/23/52;

9.	THAT the Authority erred in hearing and granting the application for re-issue of Road Route Licence No. 12/23/52 when the said application was not made within the period as required under the Land Transport (Public Service Vehicles) regulations 2000;

10.	THAT the Authority erred in hearing and granting the application for re-issue of Road Route Licence No. 12/23/52 in failing to advertise for expression of interest to operate the services authorized by Road Route Licence no. 12/23/52 as required under the Land Transport (Public Service Vehicles ) Regulations 2000;

11.	THAT the Authority erred in hearing and granting the application for re-issue of Road Route Licence No. 12/23/52 to Prem Chand and Sons T/A Dwarka Buses Limited when at the date of hearing of the application the business and/or firm registered as Prem Chand and Sons had ceased its operation and had given a Notice of Cessation under the Regulation of Business Name Act[Cap.218];

12.	THAT the Authority failed to properly evaluate the documents and evidence before it in coming to its decision to transfer Road Route Licence No. 12/23/52 from Prem Chand and Sons T/A Dwarks Buses Limited to Parmod Enterprises Limited and re-issue of Road Route Licence No. 12/23/52 and the said decision of the Authority is procedurally unfair, unreasonable and fiawed and cannot be supported having regard to all evidence, facts and circumstances.

13.	And such other additional and/or amended grounds that the Appellant may give notice of after the receipt of the record of proceedings of the Authority’s meeting held on the 9th August 2006.” 

Appeal No. 36 of 2006

Is the appeal against the decision of 16th August 2006 whereby LTA granted an application for transfer of a Road Permit (Road Route License 12/23/24) from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited.

7 grounds of appeal were listed in the notice of appeal filed on 30th August 2006. Which are as follows:

“1.	THAT the Authority erred in proceeding to hear the application for Transfer of Road Route Licence No. 12/23/24 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granted the application when;

a.	The Authority had earlier heard the same application on the 16th of February 2006 and decided as follows;

“1.	The status quo remains – Parmod to continue with the existing services until further notice

2.	Issue a temporary licence for three months

3.	Management to advertise “Expression of Interest” and interested parties to apply.”

b.	The Authority did not set aside or revoke its earlier decision of 6th March 2006 and it failed to implement it by not calling any “Expression of Interest” in accordance with the said decision.

c.	The Authority acted unreasonably and did not pay any heed to its earlier decision of 6th March 2006 and totally ignored it without any lawful justification. 

2. 	THAT the Authority erred in proceeding to hear the application for Transfer of Road Route Licence No. 12/23/24 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granting the application when an appeal (being Appeal No. 19/06) had been filed against its earlier decision of 6th March 2006 and;

a.	which appeal remained pending and/or had not been properly or lawfully disposed and/or properly or lawfully discontinued or withdrawn,

b.	directions where given by the Land Transport Appeals Tribunal on the 24th April 2006 on the future conduct of the said appeal,

c.	that little or no weight was given to submissions of the Appellant in objecting to further hearing of the application, and 

d.	the Authority made an error of jurisdiction and/or exceeded its jurisdiction in hearing the application for Transfer of Road Service Licence No. 12/23/24 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granting the application 

3.	THAT the Authority erred in proceeding to hear the application for Transfer of Road Route Licence No. 12/23/24 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granting the application when;

a.	the application before the Authority was defective in form and substance and did not comply with the Land Transport Act and the Regulations,

b.	the Appellant was not provided with full disclosures of all materials, documents and reports relied on by the Authority at the hearing and the decision of the Authority has been arrived at unfairly and/or unreasonably. 

4.	THAT the Authority erred in proceeding to hear the application for Transfer of Road Route Licence No. 12/23/24 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited on the 9th August 2006 and granting the application without deciding upon another application that was before the Authority for Transfer of Road Service Licence No. 12/23/24 from Prem Chand and Sons T/A Dwarka Buses Limited to Prem Chand and Sons Limited. 

5.	THAT the Authority erred in failing to give any or any adequate reasons for its decision of 16th August 2006 to transfer the Road Route Licence No. 12/23/24 from Prem Chand and Sons T/A Dwarka Buses Limited to Parmod Enterprises Limited;

6.	THAT the Authority failed to properly evaluate the documents and evidence before it in coming to its decision and the said decision of the Authoirty is procedurally unfair, unreasonable and flawed and cannot be supported having regard to all evidence, facts and circumstances. 

7.	And such other additional and/or amended grounds that the Appellant may give notice of after the receipt of the record of proceedings of the Authority’s meeting held on the 9th August 2006.” 

The Function and Powers of the Tribunal

Section 40 (2) of the Land Transport Act provides for the function of the Tribunal, which is “to hear and determine appeals against decisions of the Authority relating to -

(a) licensing of drivers under section 56;
(b) any matter requiring a decision of the Authority under  Part VI; and any other matter prescribed by the Minister by regulations."

The powers of the Tribunal for the purposes of hearing and determining appeals according to Section 46 are to "(a) to issue a summons to a witness in the prescribed for; (b) to call for the production of books, plans and documents; (c) to examine witnesses on oath or affirmation; (d) to admit any evidence whether written or oral and whether or not such evidence would be admissible in civil or criminal proceedings; (e) to exclude any person if necessary so as to ensure the proper conduct of the appeal or to preserve order."

Furthermore, under Section 46 (2) "on an appeal under this Part the Tribunal may dismiss the appeal or make such order as it thinks just and reasonable in the circumstances directing the Authority to issue, transfer, or cancel any licence, certificate or permit, or to impose, vary, or remove any condition or restriction in respect of a licence, certificate or permit, and the Authority shall comply with that order." And under Section 46 (3) "Upon the determination of an appeal under this section the Tribunal may make such order as it thinks just with the respect to the costs of the appeal, and any person to whom any such costs are awarded may recover the amount of those costs in any court of competent jurisdiction, as a debt due from the person against whom those costs are awarded."

According to Section 47 the Tribunal "for the purposes of the hearing and determination of any appeal the Tribunal shall have regard to those matters which the Authority is required to have regard to in considering an application under this Act."

Analysis

The Locus of the parties was an issue raised in this matter. At the outset The Tribunal would like to clarify that all parties that appear and are parties before the Land Transport Authority have the right to challenge its decision on appeal to the Tribunal. All the Parties in this action were parties before the LTA therefore they all have locus in the matter before the Tribunal.
The Tribunal from the submission of the LTA Counsel at the hearing noted the concessions made and the admission of numerous errors on LTA's part. This Tribunal is also mindful of the delay in the delivery of the judgment of the appeal and the frustration of the Parties as a result of the delays. It is now almost 9 years from the time of the date of the decision by LTA which is on appeal. 

The Tribunal has noted that The LTA in its deliberations did not note the reasons or give any reason for the decision to alter its decision of 16th February 2006 to approve the transfer of the permit after it had stated:

"1. The status quo remains – Parmod to continue with the existing services until further notice.
2.	Issue a temporary licence for three months.
3.	Management to advertise "Expression of Interest" and interested parties to apply."

From the material before the Tribunal it is clear that no expression of interest was called for as was decided by LTA on 6th March 2006. When the decision of 10th August 2006 was made the LTA did not refer to the 6th March 2006 decision. In fact by deciding on 10th August 2006 to approve the transfer of the permit the LTA effectively set aside its own decision. No mention is made or reasons given why no expression of interest was called for between 6th March and 10th August 2006. 

The LTA informed the Tribunal at the hearing that the first step after finding out that Prem Chand and Sons Limited had not been complying with the permit should have been that Prem Chand and Sons Limited should have called upon to show-cause why their permit should be suspended or cancelled. There was admission by LTA that "the Authority should accept the mistake and move forward in order to solve the transport anomaly." This acceptance by LTA was in relation to registration and subsequent transfer request by Prem Chand and Sons.

The LTA also in dealing with the transfer of permit did not give any reasons for its decision for resolving to approve the transfer. Noting from the minutes of the meeting of the LTA the Tribunal notes that LTA was in a quandary when the issues of the transfer came before them. Firstly, they grappled with the issues relating to registration issue of Prem Chand Sons and Prem Chand and Sons Limited. They sought legal advice. It seems to the Tribunal that LTA was mindful of the demand to provide public service and the fact that the temporary road permit granted for 3 months was non-renewable. They had to decide on the transfer. They resolved to approve the transfer.

This Tribunal also noted from the minutes of 9th August 2006 that the Chairperson excused himself after declaring his interest in the related matter. The interest of the Chairperson is not noted in the minutes. The Minutes of the next day, which is 10th August 2006 shows that the Chairperson was part of the deliberations and discussion in relation to the transfer. The minutes are not clear as to why he declared his interest one day when the issue was being dealt with and sat in the following day when the decision was being made. 

The Tribunal also notes that the LTA conveniently and in order to remedy the mistakes which included issuance of the road permit to a non-existent entity and balance the need for public service moved to deal with the transfer application by Parmod Enterprises. The LTA did not even mention or deal with the application by Prem Chand and Sons trading as Dwarka Buses Limited to Prem Chand and Sons Limited. What happened to this application is not explained. 

The Tribunal from the materials before it finds that there are many procedural irregularities. These have been accepted and even acknowledged by LTA at the hearing. No explanation has been given what happened to the first set of applications of transfer from Prem Chand and sons to Prem Chand and Sons Limited. Whether this was granted or not is not known. The minutes show that the LTA accepted that they had overlooked who should have been the correct permit holder and proceeded to move on and deal with the second set of application of transfer from Prem Chand and Sons Limited to Parmod Enterprises. The Tribunal notes from the minutes that LTA accepted its mistakes and in proceeding to deal with this transfer, LTA regularized the transfer from Prem Chand and sons to Prem Chand and Sons Limited. 

The Transfer of permits is regulated by Regulation 11 of the Land Transport (Public Service Vehicles) Regulation 2000. In 2005 the Regulation had a different set of guidelines as to which is in place now. It provided as follows: "subject to sub-regulation (2), the Authority may, upon application being made transfer a permit for any unexpired term of the permit if- …(c) …… (ii) a person or company with whom the permit holder has an existing business relationship involving the permit; or…."

In considering the transfer application LTA was required to apply sub-regulation 11 (2) that the transferee is a fit and proper person to hold a permit and that adequate provision will be made for the observances of any condition or restriction imposed in respect of the permit. The transferee, Parmod Enterprises was an existing operator who had continued to service the route that had been applied for. The compliance aspect of the requirements of sub-regulation 11 (2) is not clear. The LTA deliberations do not show any record in the minutes if this factor was considered. The Transferee might have complied with it by virtue of being an existing operator. The LTA had notice and the records of the transferee with them as the regulating body. They would have relied upon those in deciding the transfer application. 

The Tribunal's reading of the records and the material before it is that the LTA in dealing with the transfer application was mindful of the existing situation, which was the service of the routes by Parmod Enterprises. They were also mindful of the fact that the transferors (Prem Chand) had not been providing service and as a result Parmod Enterprises was granted 3 months temporary permit. The period for the 3 months temporary permit was expiring and the LTA needed to act to see that service of the routes was continued. The Tribunal further notes that the LTA in trying to balance the need for public service and noting the administrative bungles that were caused acted to approve the transfer of the permit. The LTA had powers to act under the Regulations to allow the transfer. While one of the permits had expired according to LTA records the application for its renewal was made by the transferors (Prem Chand) within time before the transfer to Parmod Enterprises was made. This is also allowed by the Regulations. Regulation 10 (4) provides that "if an application for re-issue of a permit is lodged within the period specified in regulation 3 (6) and is not disposed of, before the permit expires, the permit continues until the application is disposed of."

The Tribunal notes that a number of irregularities and procedural anomalies existed in the process of the decision undertaken by LTA. However, given the fact that they acknowledged these and they saw that the Tranferee (Parmod Enterprises) had a business dealing with Prem Chand, were existing operators and were fit and proper to provide service applied for. According to the Tribunal this seems to have been the analysis of LTA and the reason for the approval of the application. The LTA needed to minute its decisions and note the reasons. 

For the reasons given herein the appeal partially succeeds in that this Tribunal finds that the LTA did not follow procedures, it needed to clearly record the reasons for the recusal of the Chairperson and why he sat in at the next meeting. This Tribunal however finds that the LTA had to determine the transfer application given the circumstances that prevailed at the time. The need for continuity in providing public service was a paramount factor for them. LTA went ahead and determined the application, while reasons for the decision was not given the LTA members unanimously agreed on the transfer. The Regulations at the time allowed transfer of permit and the LTA deliberated the matter and weighed various factors before it made a decision. This Tribunal will not interfere with the decision made by LTA on the transfer of the Permit, given the circumstances and factors existing and in consideration at that moment in time. 

Right to appeal.

Chaitanya Lakshman
Land Transport Authority Tribunal
10th July 2015