DINIL DINESH v. REGIONAL TRANSPORT AUTHORITY, THRISSUR and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **WP(C).No.20963 OF 2020(U)** ## **PETITIONER:** **DINIL DINESH, SUMANGALI, THOPPIL HOUSE, P.O. CHIYARAM, THRISSUR, (REPRESENTED BY POWER OF ATTORNEY HOLDER SALISH T.S. 40 YEARS, S/O SIVASANKARAN, THARAYIL HOUSE, P.O.VADOOKARA, THRISSUR)** **BY ADV. SHRI.P.DEEPAK** ## **RESPONDENTS:** - **1 THE REGIONAL TRANSPORT AUTHORITY REGIONAL TRANSPORT OFFICE, CIVIL STATION, THRISSUR-680003.** - **2 THE SECRETARY REGIONAL TRANSPORT AUTHORITY, THRISSUR, REGIONAL TRANSPORT OFFICE, CIVIL STATION, THRISSUR-680003.** - **3 THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, TRIVANDRUM-695023.** - **4 BIJU P.R. S/O P.K.RAPPAI, PUTHUR HOUSE, CHIYYARAM.P.O, THRISSUR-682026.** **R3 BY ADV. SRI.P.C.CHACKO(PARATHANAM) R4 BY ADV. SRI.I.DINESH MENON SMT SHEEJA C.S, SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20963 OF 2020** **2** ## **JUDGMENT** Invoking the revisional powers under Section 90 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’), the State Transport Appellate Tribunal, set aside the order passed by the RTA, Thrissur, whereby a fresh regular permit was granted to the petitioner herein on 21.1.2020. After setting aside the order, directions were issued to the 1st respondent to reconsider the application filed by the petitioner herein for grant of fresh permit on merits taking into consideration the materials including the field officers report and to take a decision in accordance with law within a time frame. 2. According to the petitioner, the order passed by the Appellate Tribunal is unsustainable as the Tribunal had no jurisdiction to entertain the revision petition filed by the 4th respondent in W.P.(C) No.20963 of 2020, as he had no locus standi to mount a challenge, particularly, when the actual beneficiary, which is the KSRTC, had not challenged the grant of permit. 3. It is contended that the petitioner had purchased a brand new stage carriage and immediately thereafter, applied for the grant of a new regular permit to conduct service on the route, Cherpu-Thrissur. On 5.9.2019, when his application was boarded for consideration before the 1st respondent, the authority proceeded to defer the matter for obtaining a report from the 2nd respondent. Later, the petitioner had to approach this Court and seek directions **WP(C).No.20963 OF 2020** **3** to expedite the proceedings. This Court, by Ext.P4 judgment, issued directions to the 1st respondent to conclude the proceedings in the next meeting after obtaining the report and after hearing the KSRTC. It is stated that when the matter came up for consideration in the meeting held on 21.1.2020, the 1st respondent after hearing the petitioner and the representative of the KSRTC, by Ext.P7 order, allowed the application for regular permit, subject to settlement of timings. It is stated that about 5 months thereafter, i.e., on 22.6.2020, the 4th respondent approached the Tribunal with a revision petition challenging Ext.P7 order asserting that the grant of permit to the petitioner would offend Ext.P9 approved scheme. It is further stated that the 4th respondent had filed an objection against the grant of permit before the 1st respondent only on 23.6.2020, that too, after the filing of the revision petition. It is the case of the petitioner that the 4th respondent herein, who is an existing permit holder and a rival in trade, has no locus standi to challenge the grant of permit to the petitioner by filing a revision petition under Section 90 of the Act on the ground that the grant of permit would violate any approved scheme of nationalisation of the KSRTC. According to the petitioner, only the State Transport Undertaking, who is the sole beneficiary under the Scheme of Nationalization, can be said to be an aggrieved person to invoke the revisional jurisdiction of the State Transport Appellate Tribunal under Section 90 of the Act. It is in the above backdrop that the petitioner is before this Court seeking the following relief: (i) Issue a writ in the nature of certiorari or such other writ order or direction calling for the records leading to Exhibit P20 and quash the **WP(C).No.20963 OF 2020** **4** ## same. 4. In the counter affidavit filed by the 3rd respondent, it is stated that during the course of proceedings before the STAT, a joint route enquiry was ordered and Ext.P19 report was filed wherein it is stated that the total route length is 19.2 km and the overlapping on the notified route is 1.8 km. Since the overlapping is greater than 5% of the total route length, it became objectionable. The 3rd respondent has produced Ext.R3(a) notification dated 14.7.2009 and it is contended that the said notification is issued under Section 100(2) of the Act and forming part of Chapter VI of the Act. According to the 3rd respondent, under section 98 of the Act, the provisions of Chapter VI and orders made thereunder have an overriding effect over other provisions of the Act. It is further stated that the permit cannot be granted in violation of a notification issued under Section 100 of the Act. 5. A counter affidavit has been filed by the 4th respondent wherein it is stated that Section 104 of the Act imposes a restriction on the grant of any permit violating any scheme of nationalisation. It is contended that the RTA as per Ext.P7 proceedings granted regular permit to the petitioner despite objection being raised as to overlapping. It is on getting information about the grant of permit violating the scheme of nationalisation that the 4th respondent preferred the revision petition. While the matters were pending before the learned Tribunal, to ascertain as to whether there is overlapping, a joint inspection was ordered to be conducted with consent of all parties. The 2nd respondent was authorised to conduct inspection and submit a report. The petitioner also **WP(C).No.20963 OF 2020** **5** participated in the enquiry and it was found that there was objectionable overlapping. It is on receipt of the said report that the Tribunal had remanded the matter for fresh consideration after setting aside the grant of permit. It is contended that a larger bench of this Court in **M.C.Ratheesh v. RTA[1]** has conclusively held that though an existing permit holder has no right and cannot be held to be aggrieved when they seek to challenge the grant of permit on the ground that it would affect their commercial interest, but in a case where the grant is a statutory violation, the right to file revision under Section 90 or file writ petition or writ appeal cannot be denied. In the case on hand, in view of the report of the Secretary, it has come out that there is objectionable overlapping and consequently a clear violation of the scheme of nationalisation. If that be the case, the right of the 4th respondent to file a revision petition cannot be objected to. It is contended that the party respondent being a saved operator, he was eminently entitled to bring to the notice the violation of Chapter VI of the Scheme. It is further stated that the Tribunal has relied on a judgment of this Court in W.P.(C) No.25532/2019 while allowing the revision petition and ordering reconsideration of the issue which action was justified under Rule 20 of the STAT Rules as the said provision provides that the Tribunal shall not assume the original jurisdiction of the STA or the RTA. It is stated that the genuineness of three earlier reports were in doubt and it was in the said circumstances that a joint inspection was ordered. All that the Tribunal had done was order reconsideration of the issue and to take a decision within a period of two months 1 [2015 (1) KLT 248] **WP(C).No.20963 OF 2020** **6** which cannot be said to be illegal. According to the respondent, the contention raised by the petitioner that an existing operator cannot object to the grant of permit even if it violates Section 104 of the Act cannot be accepted in view of the law laid down by the Full Bench in **M.C.Ratheesh** (supra). 6. I have heard Sri.P.Deepak, the learned counsel appearing for the petitioner, Sri.P.C.Chacko, the learned standing counsel appearing for the Kerala State Road Transport Corporation, Sri. Dinesh Menon, the learned counsel appearing for the party respondent and the learned Government Pleader. 7. The first question to be decided is as to whether the existing stage carriage operator could have mounted a challenge against the grant of permit particularly when the beneficiary of the notified scheme has not challenged the grant. 8. The sequence of events would show that by Ext.P7 proceedings, the 1st respondent after hearing the petitioner and the representative of the KSRTC allowed the application for regular permit subject to settlement of timings. The said order reads as follows: - (B) Heard the counsel of applicant and others including KSRTC. Perused the specific report submitted by the Secretary, RTA.Route length is 17.5 kms and it is reported that there is no objectionable overlapping, since the proposed route only intersects the notified route Thrissur- Triprayar - Thrissur and Ernakulam -Thrissur at Thiruvullakkavu. Hence, regular permit granted subject to settlement of timings. 9. Being aggrieved, the 4th respondent herein, preferred revision **WP(C).No.20963 OF 2020** **7** petition under Section 90 of the MV Act against the grant of permit on the ground that the grant of permit offended the scheme of nationalisation beyond the permissible limit. The STAT entertained the revision petition and during the course of proceedings passed an order on 13.1.2020, ordering a joint inspection. The reasons which persuaded the STAT to order the joint inspection makes interesting reading. Relevant portion is extracted below for convenience. “The revision petitioner in this case challenges the grant of fresh permit to the 3rd respondent by the 1st respondent. The challenge is mainly on the ground that the proposed route objectionably overlaps on the notified route. The case records have been called for. It would show that twice the field officer inspected the proposed route and filed report. In the first report it is stated that there is no overlapping. In the second report it is stated that there is no overlapping as such, but there is only intersection. Thereafter, another report has been submitted by the field officer on 20/01/2019 clarifying the second report in which it is stated that the proposed route passes through the portion of Trivandrum-Palakkad notified route. 2. The learned counsel for the petitioner submitted that none of the reports mentioned above clearly specify whether there is objectionable overlapping or not. The learned standing counsel for the KSRTC also supported the view expressed by the learned counsel for the petitioner. The reports of the field officer are not specific. The alleged portion of the proposed route which passes through the notified route has not been specified. The petitioner has filed an application for commission to measure the proposed route and to find out whether there is objectionable overlapping or not. Per contra, the learned counsel for the third respondent submitted that **WP(C).No.20963 OF 2020** **8** there is absolutely no overlapping much less objectionable overlapping and the reports of the field officer are clear on the point that there is no overlapping. The learned Standing Counsel for the respondents 1 and 2 also supported the third respondent. Considering the entire facts and circumstances of the case, particularly considering the fact that the reports of the field officer is silent as to the extent of the proposed route which passes through in the notified scheme, I am of the view that for the proper disposal of the revision petition it is necessary to call for a further report. 3. The learned counsel for the petitioner, the learned counsel for the third respondent and the Standing Counsel for the remaining respondents agreed that the second respondent can be directed to conduct the measurement of the proposed route to find out exactly whether there is objectionable overlapping or not. In these circumstances, the following order is passed:- The second respondent is directed to conduct inspection of the proposed route and file a report and plan specifying whether there is objectionable overlapping or not. The report and plan shall specify the length of the route and the length of the objectionable portion, if any. The learned Standing Counsel for the respondents 1 and 2 is directed to inform the second respondent to fix a date within 10 days from today for inspection. If the respondent has any inconvenience to conduct and complete the inspection within 10 days, he shall depute another field officer other than one who already filed report. The inspection shall be conducted with notice to the petitioner, third respondent and KSRTC. All of them shall appear before the second respondent on 17th July 2020 at 11 am. The Secretary shall fix a date on that day and the inspection shall be conducted on the date so fixed.” **WP(C).No.20963 OF 2020** **9** 10. In other words, the STAT on a perusal of the materials found a fresh enquiry is to be conducted to ascertain whether there is objectionable overlapping as the earlier reports submitted by the Field Officer concerned were not specific. The STAT was satisfied that for a proper disposal of the revision petition it was necessary to call for a further report. The order also reveals that the petitioner herein had not raised any objection in calling for a fresh report. 11. Ext.P19 is the report submitted by the Motor Vehicle Inspector. In the said report, he has stated that the total overlapping on the notified route is 1.8 kms, which is greater than 5% of the total route length. Hence, it violates the scheme. At this juncture, it needs to be borne in mind that the approved scheme under the Act is a self-contained and self operative scheme and it is a law by itself. (See **Gajraj Singh v. STAT[2]** ). It is also settled that the Scheme is a law and the same has to be preserved and protected in public interest. (See **Karnataka State Road Transport Corporation v Ashrafulla Khan and Others[3]** . 12. Now the question is whether the party respondent can be treated to be an aggrieved person within the meaning of Section 90 of the Act, on the ground that the grant of permit is on account of violation of the provisions of the Act or the Rules. In **M.C.Ratheesh v. Regional Transport Authority[4]** a 2 [(1997) 1 SCC 650] > 3 (2002) 2 SCC 560) > 4 (2015 (1) KLT 248) **WP(C).No.20963 OF 2020** **10** Larger Bench of this Court had occasion to answer a reference made by a threeJudge Bench doubting the correctness of an earlier Full Bench judgment of this Court in **Binu Chacko v R.T.A., Pathanamthitta[5]** wherein the scope of the phrase “person aggrieved” was interpreted. The question was as to whether an order granting a permit is a revisable order under section 90 of the Motor Vehicles Act,1988 at the instance of a business rival i.e. an existing permit holder. Reference to paragraph No.20 and 22 of the judgment would be profitable. 20. According to us, in a situation where permit granted is clearly in teeth of the statutory provision, the existing permit holders cannot be denied their right to file application under S.90. The power of revision has been entrusted on the Tribunal to ensure that the State or Regional Transport Authority does not pass an illegal or improper order. In an event an illegal order is passed by the State or Regional Transport Authority and there being a power of the State Transport Appellate Tribunal to correct the said order, denial of right to file a revision of existing permit holder shall not advance the object of the Act. It is relevant to notice that the power which was contained in the 1939 Act by S.64A, there was power to exercise the revisional jurisdiction “either on its own motion or on an application made to it”. In S.90, there is no suo motu power to exercise revisional jurisdiction. An application for revision under S.90 is, thus, a must for exercising the revisional jurisdiction. In the event an illegal order is passed and the right of revision is denied to existing permit holders, the wrong shall go uncorrected, which can never be the intention of the legislature. It is useful to notice the observations made by the Apex Court in Mithilesh Garg’s case 5 (2006 (2) KLT 172 (F.B) **WP(C).No.20963 OF 2020** **11** (supra), where the Apex Court has held that the statutory authorities under the Act are bound to keep a watch on the erroneous or illegal exercise of power in granting permit under the liberalised policy. It is useful to quote the following in paragraph 15 of the judgment: " ..... The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of power in granting permits under the liberalised policy.” There may be several other circumstances, where permit is granted in a clear statutory violation. In those events also, it is to be held that right of revision cannot be denied to existing permit holders. ## xxxxxxxxxxxxxxxxx 22. We, thus, conclude that although the existing permit holders have no right and cannot be held to be an aggrieved person when they sought to challenge a grant of permit on the sole ground, that grant of permit shall prejudicially affect their commercial interest. But, in case where the grant is in a statutory violation, the right to file revision under S.90 or file Writ Petition or Writ Appeal cannot be denied. 13. The reference was answered holding that the existing permit holder has no right to challenge grant of permit under the Act, 1988 on the sole ground that such grant shall adversely affect their commercial interest. For the above purpose, he cannot be treated to be “a person aggrieved” within the meaning of Section 90 of the Act, 1988. However, the existing permit holder can be treated **WP(C).No.20963 OF 2020** **12** to be “aggrieved person” within the meaning of Section 90 of the Act, 1988 in the event his challenge to the grant of permit is on the ground of any violation of the provisions of the Act or Rules. 14. In the instant case, the only contention advanced by the 4th respondent to persuade the STAT to invoke revisional jurisdiction is that the grant of permit offended the scheme of Nationalisation. The scheme is a law unto itself and it cannot be said that the objection raised is not one of a substantial nature. The Appellate Tribunal examined the question raised and in its wisdom decided that it had the jurisdiction to entertain the revision petition. Having considered the facts, I find no reason to interfere with that finding. 15. Sri P. Deepak, the learned counsel appearing for the petitioner addressed arguments to substantiate his contention that the extent of overlapping noted by the filed officer is erroneous as he had failed to take into account the one-way traffic regulations prevalent in Thrissur Town. He would contend that the one-way traffic system enforced along Swaraj Round assumes the status of the roundabout and the overlapping of the notified route on account of circumventing the Swaraj Round is only to be reckoned as an “intersection” in the light of the law laid down by the Hon’ble Supreme Court in **Karnataka SRTC Vs Ashrafulla Khan[6]** . These are factual matters best left to the decision of the RTA Thrissur, to which authority the matter has been made over by the STAT for reconsideration. The STAT has also left open the rights of the petitioner to prefer objections and take all legitimate legal contentions to bolster his assertion that 6 (2002 (2) SCC 560) **WP(C).No.20963 OF 2020** **13** there is no objectionable overlapping but instead the same can be reckoned only as an intersection as it cuts across the notified route because of the size of route or traffic regulations. In other words, ample opportunity has been granted to the petitioner to advance all his contentions before the 1st respondent. It is for the petitioner to avail the opportunity so that a decision can be taken by the 1st respondent as per procedure and in accordance with law. I find no reason to interfere with the impugned order. This writ petition will stand dismissed. There will be no order as to costs. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C).No.20963 OF 2020** **14** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF KL-08-BT-7173.** **EXHIBIT P1 (a) TRUE PHOTOSTAT COPY OF A PHOTOGRAPH OF STAGE CARRIAGE KL-08-BT-7173.** **EXHIBIT P2 A TRUE COPY OF THE RESOLUTION OF THE AVINISSERY GRAMA PANCHAYATH DATED 24/06/2019 WITH COVERING LETTER DATED 27/06/2019.** **EXHIBIT P3 A TRUE COPY OF THE DECISION OF THE FIRST RESPONDENT DATED 05/09/2019.** **EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 13/11/2019 IN WP(C) NO.29819 OF 2019.** **EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED 14/01/2020 OF ALPS PERINCHERY.** - **EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION FROM KALLOOR MANA RESIDENTS ASSOCIATION SUBMITTED ON 17/01/2020.** - **EXHIBIT P7 A TRUE COPY OF THE DECISION OF THE FIRST RESPONDENT DATED 21/01/2020.** - **EXHIBIT P8 A TRUE COPY OF THE MEMORANDUM OF REVISION PETITION (WITHOUT EXHIBITS) IN MVARP NO.71/2020 WITH CASE DETAILS.** - **EXHIBIT P9 A TRUE COPY OF APPROVED SCHEME PUBLISHED AS SRO NO.608/2009.** **EXHIBIT P10 A TRUE COPY OF THE JUDGMENT REPORTED IN** **WP(C).No.20963 OF 2020** **15** ## **2015 (1) KLT 248.** **EXHIBIT P11 A TRUE COPY OF THE OBJECTION DATED 21/01/2020 FILED BY THE FOURTH RESPONDENT ON 23/06/2020.** **EXHIBIT P12 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN MVARP NO.71/2020.** **EXHIBIT P13 A TRUE COPY OF THE DECISION REPORTED IN 1994 SUPPLEMENTARY (2) SCC 186.** **EXHIBIT P14 A TRUE COPY OF THE JUDGMENT DATED 23/03/2006 IN WRIT APPEAL NO.319 OF 2005.** **EXHIBIT P15 A TRUE COPY OF THE JUDGMENT DATED 24/01/2012 IN THE WRIT APPEAL NO.62 OF 2012.** **EXHIBIT P16 A TRUE COPY OF THE JUDGMENT DATED 21/07/2006 IN W.P.(C) NO.18498 OF 2006.** **EXHIBIT P17 A TRUE COPY OF THE JUDGMENT REPORTED IN 2016 SCC ONLINE KERALA 14289. EXHIBIT P18 A TRUE COPY OF THE JUDGMENT DATED 16/12/2019 IN W.P (C) NO.25532 OF 2019. EXHIBIT P19 A TRUE COPY OF SPECIFIC REPORT DATED 29/07/2020 FILED IN MVARP NO.71/2020. EXHIBIT P20 A TRUE COPY OF THE JUDGMENT DATED 26/08/2020 IN MVARP NO.71/2020. EXHIBIT P21-A A ROUGH SKETCH OF THE SWARAJ ROUND AT THRISSUR WITH THE PROMINENT EXITS.** **WP(C).No.20963 OF 2020** **16** ## **RESPONDENT(S) EXHIBITS :** **EXHIBIT R4(a)** **TRUE COPY OF THE ORDER DATED 13.07.2020 IN MVARP NO.71/2020.** **EXHIBIT R4(b) TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.8006/2016 DATED 09.09.2016.** **EXHIBIT R4(c) TRUE COPY OF THE JUDGMNET IN O.P.(C) NO.2707/2018 DATED 13.12.2018.** **EXHIBIT R4(d)** **TRUE COPY OF THE REPLY AFFIDAVIT IN MVARP NO.71/2020 DATED 11.07.2020.** **EXHIBIT R3(a) TRUE OF THE NOTIFICATION DATED 14.07.2009 ISSUED BY GOVERNMENT OF KERALA.**