1. 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.

2. 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.KL41 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 finalized 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.

3. The sole respondent Transport Commissioner contends that he is competent to issue circulars under S.123(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.

4. 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.

5. I should at the outset take not 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 infact starts with an instruction to the officers subordinate to scrupulously follow the same pending proceedings on 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 oth