Ajitha Kumary v. Regional Transport Authority Kollam and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **CR** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** **WP(C) NO. 10640 OF 2021** ## **PETITIONER:** AJITHA KUMARY, W/O. JAYACHANDRA BABU, MELOOTTIL VEEDU, DHARPPAKKADU, AYIRAKUZHAY, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV O.D.SIVADAS ## **RESPONDENT:** 1 THE REGIONAL TRANSPORT AUTHORITY, KOLLAM REPRESENTED BY ITS SECRETARY, PIN-691013. 2 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, KOLLAM, PIN-691013. 3 THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM, PIN695035. R3BY ADV SRI.P.C.CHACKO(PARATHANAM) ## **OTHER PRESENT:** SR.GP BIMAL K NATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2021, THE COURT ON 26/7/2021 DELIVERED THE FOLLOWING: W.P.(C) No.10640/2021 2 ## **JUDGMENT** Petitioner is an existing stage carriage operator conducting service on the route Kallara – Kurissumoodu, evidenced by Ext.P1. The original permit holder had applied for variation of permit by extending the route from Kurissumoodu to Anchal without changing the existing time and without providing additional service. Ext.P2 is the proposed set of timings. The extended route from Kurissumoodu to Anchal falls within the notified route meant for KSRTC service. According to the petitioner, the total route length from Kallara – Kurissumoodu is 40.3 Kms and by virtue of Kerala Motor Vehicles Rules, the permissible overlapping comes to 2.01.Kms. Extension sought for, from Kurissumoodu to Anchal covers a distance of 1.6 Kms which is less than the permissible overlapping of 2.01 Kms. On this basis, petitioner claimed that the overlapping sought was within the permissible limit. However,the application was rejected by the RTA by Ext.P4 order holding that extended portion from Kurissumoodu to Anchal overlapped into the notified scheme, Trivandrum -Kottayam via Ranny and thus violated GO(P)No.8/2017/trans.dated 23/3/2017. Ext.P4 was taken in appeal before the STAT, Ernakulam by filing MVAA No.234/2019. Learned Tribunal, after considering the rival contentions and extension sought for, found that total permissible overlapping was 2.01 Kms and the route for which the extension was sought for was only 1.6 Kms and hence it was within the permissible limit. Accordingly, the impugned order was set aside and the first respondent W.P.(C) No.10640/2021 3 therein was directed to consider whether there was overlapping in the existing route and whether there was overlapping in the entire route, including the varied portion. It was held that if the first respondent found that there was no objectionable overlapping in the entire route and if there was no other legal impediment, variation sought shall be granted. However, the RTA, by Ext.P7 order, rejected the application reiterating the earlier order. In Ext.P7, it was held that the proposed variation included extension of 1.6 kms from Kurisumoodu to Anchal and the entire portion objectionably overlaped the notified route and thus violated the Government Order dated 23/3/2017. Aggrieved by Ext.P7 order, the petitioner has approached this Court. 2. The learned counsel for the petitioner vehemently contended that the authority committed a fundamental error of law which is susceptible in a writ proceeding. It was contended that, RTA failed to notice that the extension sought was within the non objectionable limit, since the one of the termini at Kurissumoodu was sought to be extended to the next station at Anchal. Since the extension sought was within the permissible limit, the Authority could not have ignored the order of the appellate Tribunal, it was contended. 3. Learned senior Government Pleader, supporting the impugned order, contended that the entire length of extension overlapped the notified area and hence the order of the RTA was legally sustainable. Though the extension sought was within the permissible extent, the extended portion completely covered the Nationalised route. Vehemently supporting the impugned order, the learned senior Government Pleader canvassed the proposition that the W.P.(C) No.10640/2021 4 purpose of granting extension overlapping the notified area was only for intersection. It was contended that in the absence of any intersection in this case, there could not be any overlapping, by virtue of the Rules. 4. There is no dispute that the Rule does not prescribe that extension cannot be at one of the either end or entire length of extension sought should not cover the notified area. However, it was contended by the learned Government Pleader that overlapping can only be for intersection. To substantiate this, learned senior Government Pleader relied on the decisions reported in **Karnataka State Road Transport Corporation v. Ashrafulla Khan And Others [(2002) 2 SCC 560]** as well as the three Judges Bench decision of the Supreme Court in **Kerala State Road Transport Corporation v. Baby P.P.and Others (2018 (3) KHC 385)** . In the former decision,the question that came up before the Supreme Court was whether overlapping of portions falling within the notified route can be permitted. or whether it can be permitted for intersection only. Under the concerned Rules, overlapping was not permitted. However, the Supreme Court held that, in spite of this, for the purpose of intersection overlapping can be granted. Interpreting this, the Apex Court held that the extension was only meant for the purpose of intersection and under no circumstance overlapping can be permitted. In Kerala Motor Vehicles Rules, there is no prescription that extension cannot be sought at either terminus or that extension extension can be permitted only for intersection and not for overlapping. However, the Apex Court had occasion to consider the above question directly in KSRTC v. Baby P.P.'s Case W.P.(C) No.10640/2021 5 (supra). In that decision, it was held that the scheme does not permit a private stage carriage to operate more than 5 Kms or 5% (whichever is less) on the route proposed by the private stage carriage operator. It was held that the intersection of the notified route may not be the same as traversing and overlapping with the route, because the prohibition under the Scheme must apply to the whole or a part of the notified route, and private stage carriage operators cannot be allowed to traverse the same line under the guise of intersection. It was further held that it was not open scheme intending total exclusion of private stage carriage operators for a notified route except for intersecting. It was not open for authorities to grant permits to private stage carriage operators to operate on the notified route but may be permitted merely to intersect within the permissible limits. It was held that intersection was not traversing the same line of travel beyond permitted limits through its onward journey. 5. The distinction between intersection and overlapping was directly under consideration of the Hon'ble Supreme Court in Karnataka Road Transport Corporation v. Ashrafulla Khan & Others (supra). After referring to the dictionary meaning of the term”intersection” as aid in interpretation in the absence of a specific definition of the word 'intersection' in the Act, the Supreme Court held that while employing the expression “intersection”, it indicated that in view of the consistent view of the court that no permit can be granted to operate on a notified route or portion thereof, if a scheme prohibits such an operation by a private operator and the only exception was W.P.(C) No.10640/2021 6 where private operator holding permit on non -notified route has to intersect a notified route. It was held by the supreme Court that in earlier decisions, which were referred to by the Supreme Court including _**Adarsh Travels Bus**_ _**Service v. State of U.P., (1985) 4 SCC 557)**_ the view taken was that intersection of a notified route does not amount to traversing or overlapping the notified route, because the provision contained in a scheme applies to a whole or part of the route on the highway on the same line of route. It was further clarified that an intersection cuts across a notified route and does not permit traversing the same line of travel on a notified route. The decision of the Surpreme Court in _**Mysore SRTC v. Mysore Road Transport Appellate Tribunal.(1974 AIR 1940 )**_ explained what the court meant by intersection. The meaning assigned to it was that, an intersection was not traversing the same line of travel, but it cuts across. In other words, if the vehicle was to ply on the same line of travel on a notified route, it was overlapping and if a non notified route cuts across a notified route for its onward journey, it was an intersection. 6. It was held that the expression “intersection” has been employed by the court only to provide a facility to private operator operating on a non notified route to continue on an onward journey, if it cuts across a notified route. It appears that this exception was carved out only to avoid hardship to the travelling public, otherwise, a scheme which was for total exclusion of private operation was held to be untouchable. Reiterating the above, it was reaffirmed by Supreme Court that in an intersection a non notified route, only W.P.(C) No.10640/2021 7 cuts across a notified route only for onward journey. It is only to enable a private operator plying on a non notified route to a non notified route to cut across a notified route. 7. To counter the above contention,learned counsel for the petitioner and the learned counsel for the KSRTC referred to the decision of the Constitution Bench in _**G.T.Venkataswamy Reddy v. State Transport Authority and others(2016) 8 SCC 402**_ ). The above decision essentially considered the question regarding scheme on notified route. It was, inter alia, held that application for variation of permit must be treated as an application for grant of new permit since sub sections (1) to (7) of section 57 of the Motor Vehicles Act, 1939 mandated compliance with various specific requirements which were intricately connected with grant of new permit which were to be mutatis mutandis complied with. 8. Though the learned counsel specifically referred to the Constitution Bench decision, the crucial question that arises in this case i.e. whether an overlapping is permissible over a notified route without any onward journey was not the question involved in the Constitution Bench decision. Hence, it will not help the petitioner in any manner. 9. In the light of the law laid down by the Supreme Court, I am inclined to hold that the question involved in this case is to be considered in the light of decision in Ashrafulla Khan's case (supra). It is to be noted that in the present case, evidently the overlapping is sought in respect of a permissible distance. However, the impact of extension was to extend the existing non W.P.(C) No.10640/2021 8 notified route to the prescribed length, overlapping the notified route. Hence, from Kurissumoodu to Anchal for which the extension is sought, completely overlaps the notified route which was not meant for its onward journey. Definitely, in this case the test of intersection for the purpose of onward journey by cutting across a notified route is not satisfied. Clearly,it is a case of overlapping alone. Accordingly, I find no illegality in the impugned order. The writ petition fails and is accordingly dismissed. Sd/- **SUNIL THOMAS** **Judge** dpk W.P.(C) No.10640/2021 9 ## **APPENDIX OF WP(C) 10640/2021** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE PROCEEDING NO.C4/524/08/Q DATED 2.10.2008 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P2 TRUE COPY OF THE PROPOSED SET OF TIMING SUBMITTED BY THE PETITIONER FOR VARIATION OF PERMIT. - EXHIBIT P3 TRUE COPY OF THE ROUTE ENQUIRY REPORT IN RELATION TO VARIATION OF PERMIT DATED 29.1.2019. - EXHIBIT P4 THE TRUE COPY OF THE PROCEEDING OF THE 1ST RESPONDENT NO.C3/145889/2018/Q DATED 21.2.2019. - EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 19.12.2019 IN MVAA NO.234/2019 ISSUED BY THE STAT, ERNAKULAM. - EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 25.11.2020 WP(C) NO.13621 OF 2020 RENDERED BY THIS HON'BLE COURT. - EXHIBIT P7 THE TRUE COPY OF THE PROCEEDING OF THE 1ST RESPONDENT DATED 10.2.2021 REJECTING THE VARIATION OF PERMIT. Ext.R3(A): COPY OF THE NOTIFICATION DATED 14/7/2009 VIDE GO(P) NO..42/2009