Gangadharan v. Regional Transport Authority, Palakkad & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945`** ## **`WP(C) NO. 12108 OF 2023`** ## **`PETITIONER:`** ``` GANGADHARAN., AGED 53 YEARS S/O, PONNUCHAMI, KARAKKOTTUPURA , THEKKEKUNNAM, POST KOTTEKKAD, PALAKKAD, PIN - 678732 ``` ``` BY ADV K.V.GOPINATHAN NAIR ``` ## **`RESPONDENTS:`** - `1 THE REGIONAL TRANSPORT AUTHORITY, PALAKKAD REPRESENTED BY ITS SECRETARY, KENATHUPARAMBU , KUNATHURMEDU, PALAKKAD, PIN - 678001` - `2 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, PALAKKAD, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN - 678001` - `3 DISTRICT TRANSPORT OFFICER, KSRTC, PALAKKAD, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN - 678001` - `4 P.V DAMODARAN NAIR, 132/214 RAMANIVAS, EDAYAR STREET, PALAKKAD, PIN - 641001` - `5 K. RAVINDRA KUMAR, S/O P.V DAMODARAN NAIR, RAMA NIVAS, EDAYAR STREET, PALAKKAD, PIN - 641001 BY ADVS. SHRI.DEEPU THANKAN, SC, KSRTC P.DEEPAK P.C.CHACKO(PARATHANAM) NAZRIN BANU` ``` ADV.JOBY JOSEPH-GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.12108 of 2023 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 27[th] day of September, 2023** 1. The present writ petition has been filed under Article 226 of the Constitution of India by the petitioner aggrieved by Ext.P8 order passed by the Tribunal, whereby the appeal filed by the petitioner against the order of the RTA for renewal of regular permit of the stage carriage of the petitioner bearing registration No. KL-09/V 1952 plying on the route Padlikkad - Palakkad via Kottekkad, Kundukad, Mattumantha, Palayam and Puthur and Palakad- Kannannore via Poodur and Thachankad, has been rejected and the petitioner’s regular permit has been revoked. 2. The case has a long history of litigation. 3. The petitioner was granted regular permit by the 1st respondent on 3rd August 2011 but the same was canceled by the 1st respondent on the ground of overlapping of routes. The petitioner challenged the ``` WP(C) No.12108 of 2023 ``` ``` 3 ``` decision of cancellation of the regular permit of the petitioner before the Tribunal. However, the Tribunal dismissed the appeal. Aggrieved by the said dismissal of the appeal, the petitioner filed W.P(C.) No.2741/2008 before this Court. The writ petition also failed against which the petitioner had filed Writ Appeal No.203/2010. The Division Bench of this Court in order to ascertain the fact of the overlapping, appointed an Advocate Commissioner to take measurement in respect of the route from Palakkad Municipal Stand to Therakkad. The contention of the 3rd respondent was that the distance of 1.5 Kilometers in that section ie.Palakkad Municipal Stand to Therekkad was overlapping. The Advocate Commissioner measured the said section and found the distance only 800 meters which was much below the prescribed limit of 1.5 Kilometers. The Division Bench ``` WP(C) No.12108 of 2023 ``` ``` 4 ``` accepted the report of the Advocate Commissioner and accordingly, directed the Tribunal to consider the appeal filed by the petitioner a fresh. On remand, the Tribunal passed a fresh order Ext.P3. 4. It would be appropriate to note the finding recorded by the Tribunal in Ext.P3 on remand regarding the overlapping . Paragraph 6 of the judgment passed by the Tribunal is relevant and it is extracted here under: “6. The 3 respondent has not filed any objection before this Tribunal. As rightly pointed out by the learned counsel for the appellant, being a rival operator, the 3 respondent has no locus standi in the matter (see Binu Chacko RTA Pathanamthitta reported in 2006(2) KL.T 172). The present case forwarded by the learned standing counsel for the 4" respondent is that the overlapping is not only for the sector from Municipal Bus Stand to Tharekkad, whereas overlapping for a distance of 9.6 kilometres from K.S.R.T.C Stand to Town Stand and 0.8 kilometres from Town Stand to the Municipal Bus Stand are also there. It has to be noted that either the 4 respondent or respondents 1 and 2 had no case before the Hon'ble High Court of Kerala, that there is any such portion of objectionable overlapping. The said ``` WP(C) No.12108 of 2023 ``` ``` 5 ``` argument is taken for the first time before this Tribunal. In fact, the said contention raised by the learned counsel for the 4 respondent is contradictory to the objection filed by the 4[th] respondent before this Tribunal. In paragraph 4 of the said objection it is contended that there is overlapping of a portion of 0.5 kilometres from Palakkad Municipal Bus Stand to Tharekkad junction on the Palakkad Kannur supplementation scheme. The distance of 0.5 kilometres noted in the objection might have been an error and it might have been incorporated instead of 1.5 kilometres. Even in the objection the 4[th] respondent has no case that there is any objectionable overlapping on any other sector other than the sector from Municipal Bus Stand to Tharekkad. In this connection, the appellant has filed an affidavit in support of M.P No.690/2010 in this appeal in which it has been clearly affirmed that the said portion covering the distance from K.S.R.T.C Stand to Town Stand and Town Stand to Municipal Bus Stand are all being covered the existing services due to one way system. Matters being so, the said overlapping can only be considered mere inevitable intersection. The sketch prepared by the Motor Vehicle Inspector, Palakkad, also shows that the distance between Municipal Bus Stand to Tharekkad is 0.8 Kilometres. Therefore, there is no meaning in contending that the distance measured by the Advocate Commissioner is incorrect. From the records and the arguments made by learned counsel for the appellant, it has clearly come out that the only portion over which overlapping is there for the sector from the Municipal Bus Stand to Tharekkad. The said distance is only 0.8 kilometres, which is well within the permissible limits. ``` WP(C) No.12108 of 2023 ``` ``` 6 ``` Matters being so, there is no reason to deny the request of the appellant for a fresh permit on the route Palakkad Palakkad, and therefor the impugned order is liable to be set aside.” 5. The 3rd respondent, being dissatisfied with Ext.P3 order dated 16.11.2010 passed by the Tribunal, filed a W.P(C.) No.15221/2011, before this Court. The said writ petition was disposed of vide Ext.P4 judgment dated 20.03.2013. The learned Single judge of this Court in the said judgment specifically held that overlapping was only for 800 meters which was well within 5% of the total route length of 26 Kms (now 31 Kms) and the said overlapping is permisible as per the modified scheme. It was further held that two other stretches namely IMA Hall to Mission School and Mission School to Therakkad Junction were not pointed out before the Tribunal or the RTA and it was the 1[st] time that was pointed out in the writ petition. ``` WP(C) No.12108 of 2023 ``` ``` 7 ``` Therefore, this Court did not accept the said plea of overlapping in respect of overlapping in stretches ie. IMA Hall to Mission School and Mission School to Therakkad Junction. Paragraph 4,5 and 6 of Ext.P4 judgment passed by this Court dated 20.03.2013 in W.P(C.) No.15221/2011 are extracted hereunder “4. The overlapping of 800 metres is well within 5% of the total route length of 26 kms sought to be operated by the third respondent. An overlapping up to 5 kms or 5% of the total route length is permissible even as per Ext.P3 notification. Two other stretches namely IMA Hall to Mission School and Mission School to Therakkad Junction are pointed out for the first time in the writ petition. I am afraid that I cannot countenance this plea at this belated stage. Such an objection was not raised either before the Regional Transport Authority or the State Transport Appellate Tribunal 5. The finding that the overlapping is only for a length of 800 mts and within the permissible limits is a dead question of fact. Such a finding arrived at by the State Transport Appellate Tribunal is rested on evidence. The same cannot be assailed in a writ petition under Article 226 of the Constitution of India. 6. I however clarify that the KSRTC is entitled to urge all its contentions at the time of renewal of the present permit. The third respondent is operating services ``` WP(C) No.12108 of 2023 ``` ``` 8 ``` on the basis of the interim order passed in this writ petition. No other point arises for consideration in this writ petition.” 6. Thus the question of overlapping was concluded by Ext.P3 judgment of the Tribunal and Ext.P4 judgment passed by this Court. It was held by the Tribunal as well as this Court that the overlapping was only up to 800 meters. The petitioner’s regular permit was valid up to 19.07.2016. The petitioner made an application for renewal before the 1st respondent. It appears that the RTA called for a report regarding overlapping of some distance from the Motor Vehicle Inspector without any notice to the petitioner. The Motor Vehicle Inspector in his report stated that the overlapping was 3.8 Kms from the KSRTC Bus stand to Moyan’s School Junction (1.9 Km) and IMA junction to BEM school junction (1.9 Km) and as per the report, the overlapping distance has been ``` WP(C) No.12108 of 2023 ``` ``` 9 ``` found to be more than 5% of the total route length. It was stated that the petitioner is not entitled to get the protection of a saved permit as per the Government notification dated 23.03.2017. It has been stated that the permit has to be considered afresh and since the regular permit of the petitioner is in violation of clause 5(c) of G.O(P) No.08/2017/Tran dated 23.03.2017, the permit cannot be renewed further and the grant of the permit was revoked. The petitioner challenged the decision of the RTA in Ext.P5 by filing M.V A.A No.241/2018 before the State Transport Appellate Tribunal. In the appeal it has been stated that the observation in the impugned order regarding the overlapping of the route is absolutely incorrect and the portion stated in the impugned order is not notified sector and the operation through the said portion cannot be considered as objectionable ``` WP(C) No.12108 of 2023 ``` ``` 10 ``` overlapping. It has been further stated that the contention of the 3rd respondent is inconsistent and contradictory which cannot be acted upon. 7. The Tribunal, in Ext.P8 judgment dated 31.01.2023, has, however, rejected the appeal without considering the contention that the overlapping area is not notified area and the issue regarding overlapping was covered by the earlier judgment of the Tribunal and the High Court. The Tribunal in Ext.P8 impugned judgment has held that in the new report submitted by the Motor Vehicle Inspector, the overlapping route has been found to be 3.8Kms, which would be in violation of Clause 5(c) of G.O(P) No.08/2017/Tran dated 23.03.2017, as the overlapping is more than 5% of the total route length. The permit issued after 14.07.2009 cannot be saved. 8. The learned counsel for the petitioner submits ``` WP(C) No.12108 of 2023 ``` ``` 11 ``` that the issue regarding the overlapping of the notified route get concluded by the judgment passed by this Court in W.P(C.) No.15221/2011. This issue could not have been reopened by the RTA or the Tribunal in the subsequent proceedings of the renewal of the permit. The RTA as well as the Tribunal have decided the issue while considering the application for renewal of the permit in appeal against the order passed by this Court in W.P(C.) No.15221/2011. The learned counsel submits that the orders passed by the RTA and the Tribunal are illegal and liable to be set aside. 9. It is further submitted that the new stretches, which have been held to be overlapping, are not on the notified area and therefore, even if there is overlapping, since those stretches are not on the objectionable notified area, it would not come in ``` WP(C) No.12108 of 2023 ``` ``` 12 ``` the way for renewal of the regular permit of the petitioner. Learned counsel for the petitioner further submits that while considering an application for renewal of permit, the factors which have been required to be taken into consideration are enumerated under Section 81(4) Motor Vehicle Act. It is further submitted that the renewal application can only be rejected on consideration of factores enumerated under Section 81(4) of the Motor Vehicle Act 1988. To press this point, learned counsel for the petitioner has placed reliance on the judgment of this Court in **Rajendran v. State Transport Appellate Tribunal, Ernakulam** [1991 KHC 89]. Paragraphs 4 and 5 of the said judgment would read as under: 4. S.81 (4) of the new Act reads thus: "The Regional Transport Authority or the State Transport Authority, as the case may be, may reject an application for the renewal of a permit on one or more of the following grounds namely : ``` WP(C) No.12108 of 2023 ``` ``` 13 ``` (a) the financial condition of the applicant as evidenced by insolvency, or decrees for payment of debts remaining unsatisfied for a period of thirty days, prior to the date of consideration of the application; (b) the applicant had been punished twice or more for any of the following offences within twelve months reckoned from fifteen days prior to the date of consideration of the application committed as a result of the operation of a stage carriage service by the applicant, namely:- the following grounds, namely: - (i) plying any vehicle - (1) without payment of tax due on such vehicle; (2) without payment of tax during the grace period allowed for payment of such tax and then stop the plying of such vehicle; - (3) on any unauthorised route; (ii) making unauthorised trips: Provided that in computing the number of punishments for the purpose of clause (b), any punishment stayed by the order of an appellate authority shall not be taken into account Provided further that no application under this subsection shall be rejected unless an opportunity of being heard is given to the applicant.” 5. It is significant that the word "may" is used in the sub-section which indicates that a discretion has been conferred on the Transport Authority to dismiss application for renewal on any of the grounds enumerated in it. Even if any such ground exists the Transport Authority need not necessarily dismiss ``` WP(C) No.12108 of 2023 ``` ``` 14 ``` application. If the Transport Authority thinks that the facts in a particular case are such that notwithstanding the existence of any of the grounds mentioned S.81(4) the application should not be rejected, it has the power to grant application for renewal. eg: If the decree passed against the applicant which remains unsatisfied involves only a small amount, the Transport Authority need not necessarily dismiss the application for renewal. The object of enumerating grounds and conferring a discretion is not to make the grounds merely illustrative Legislature would evidently have intended that the application for renewal should not be dismissed on any ground other than those enumerated in the sub-section. If the legislature intended that the Transport Authority can dismiss the application on any ground whatsoever there is no need to provide sub-s. (4) in this form. The reasonable inference is that the grounds in the sub-section are exhaustive and the Transport Authority has no power to dismiss the application for renewal for any other ground.” 10. It is therefore, submitted that once the issue of overlapping had got concluded finally, the RTA could not empowered to reopen the same and reject the application of the petitioner for renewal. The learned counsel for the petitioner therefore submitted that the order passed by the two ``` WP(C) No.12108 of 2023 ``` ``` 15 ``` Authorities are not sustainable in law and liable to be set aside. 11. On the other hand, Sri. Deepu Thankan, learned counsel for the 3[rd] respondent submitted that this Court in its judgment dated 23.03.2013 in W.P(C.) No.15221/2011 has clarified that the 3[rd] respondent would be entitled to urge all its contentions at the time of renewal of the permit. That would mean that the length of overlapping of route could have been taken up before the RTA at the time of considering of the application of the petitioner for renewal. It is submitted that the RTA was well within the power to call for a report on the overlapping of the route. In the report submitted by the Motor Vehicle Inspector, it has been reported that the overlapping is 3.8Kms and not 800meters. Since, the overlapping is more than permissible limit as per ``` 16 ``` ``` WP(C) No.12108 of 2023 ``` clause 5(C) of G.O(P) No.08/2017/Tran dated 23.03.2017, the RTA has been well within the power to reject the renewal application of the petitioner. He further submitted that the petitioner’s route to the regular permit for the route got expired in the year 2016 and therefore, it has been revoked. He submitted that the order regarding revocation was not required as the permit had already got expired on the date the renewal application was rejected. As the permit was not renewed, the petitioner cannot operate his stage carriage on the route for which the permit was granted. 12. The learned counsel for the 5[th] respondent has also supported the submission of the learned counsel for the 3[rd] respondent. She has further submitted that it was the mistake of the 3[rd] respondent not to raise objection in respect of the ``` WP(C) No.12108 of 2023 ``` ``` 17 ``` overlapping of other stretches other than one stretch. She further submitted that by conjoint reading of Sections 103(2) and 81 of the Motor Vehicle Act,1988, the provisions of the Government Order dated 23.03.2017 have been given effect to. Clause 5(C.) of G.O(P) No.08/2017/Tran dated 23.03.2017 provides issuance of the permit on notified routes where there is overlapping of 5Kms or 5% of the length of the route which ever is less. In this case overlapping is more than 5%. ie, 3.8Kms of 31 Km route and therefore the application for renewal has been rejected. She further submitted that in view of the liberty granted by this Court to the 3[rd] respondent to take all objections at the time of renewal of the permit of the petitioner, the RTA was well within the power to call for a report regarding the exact length of the overlapping, and therefore, ``` WP(C) No.12108 of 2023 ``` ``` 18 ``` the decision taken by the RTA, and the order passed by the Tribunal do not call any interference by this Court. 13. The learned Government Pleader has also supported the said submission. 14. I have considered the submissions advanced on behalf of the learned counsel for the petitioner as well as the respondents. It is not in dispute that the Government Order dated 23.03.2017 is only applicable on the notified route. If there is overlapping on the notified route of 5Kms or 5% which ever is less, then the permit cannot be granted. The question of overlapping on the notified route got finally settled in the earlier ground of litigation before the Tribunal as well as this Court, in which it was categorically held that the overlapping was only to the extent of 800meters. It is the specific ``` WP(C) No.12108 of 2023 ``` ``` 19 ``` stand of the learned counsel for the petitioner that the alleged overlapping is not on the notified route. This contention has not been considered by the RTA or by the Appellate Tribunal and the total length of the overlapping has been taken into consideration for rejecting the renewal application of the petitioner. 15. In the earlier round of litigation before this Court, the question of overlapping was got concluded. This issue could not have been reopened by the RTA and the Tribunal to come to the conclusion ie., overlapping of 3.8 Kms on notified routes by taking into consideration some report submitted by the Motor Vehicle Inspector. There cannot be any dispute regarding the fact that the said scheme has to be given effect to. The question here is not of giving effect to the scheme, but regarding the exact length of the overlapping of the route and ``` WP(C) No.12108 of 2023 ``` ``` 20 ``` whether once the said issue had attained finality, can it be reopened at the time of renewal of the permit of the petitioner. 16. Considering the aforesaid facts and perusing the earlier orders passed by the Tribunal, and this Court in W.P.(C.) No.15221/2011, I am of the view that the impugned order passed by the RTA and the Tribunal are liable to be are set aside. The matter is remanded back to the RTA to consider whether new stretches which have been pointed out in the report of the Motor Vehicle Inspector are on notified route or not. The RTA is directed to pass fresh orders in accordance with law, on the application of the petitioner for renewal, after hearing the petitioner and other affected parties. Till fresh order is passed, the petitioner shall be permitted to operate his stage carriage. ``` WP(C) No.12108 of 2023 ``` ``` 21 ``` 17. With the aforesaid direction, the present writ petition stands finally disposed of. Sd/- ## **DINESH KUMAR SINGH** **JUDGE** AP ``` WP(C) No.12108 of 2023 ``` ``` 22 ``` ## **`APPENDIX OF WP(C) 12108/2023`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE REGULAR PERMIT VALID TILL 19.7.2016 DATED 4.10.2017 EXHIBIT P2TRUE COPY OF THE DECISION OF THE 1ST RESPONDENT DATED 17.9.2007 EXHIBIT P3TRUE COPY OF THE JUDGMENT OF THE TRIBUNAL DATED 16.11.2010 M.V.A.A.A.NO.64/2007 EXHIBIT P4TRUE COPY OF THE JUDGMENT OF THE THIS HON'BLE COURT IN W.P(C).NO.15221/2011 DATED 20.3.2013 EXHIBIT P5TRUE COPY OF THE DECISION OF THE 1ST RESPONDENT DATED 29.5.2018 EXHIBIT P6TRUE COPY OF THE APPEAL MEMORANDUM M.V.A.A 241/18 (WITHOUT EXHIBITS) DATED 30.8.2018 EXHIBIT P7TRUE COPY OF THE TEMPORARY PERMIT ISSUED TO THE PETITIONER VALID TILL 11.3.2023 DATED 17.2.2023 EXHIBIT P8TRUE COPY OF THE JUDGMENT OF THE TRIBUNAL DATED 31.1.2023 IN M.V.A.A 241/2018 EXHIBIT P9THE TRUE COPY OF THE SCHEME DATED 23.03.2017 RESPONDENT EXHIBITS EXHIBIT R6 (A)TRUE COPY OF THE APPROVED SCHEME OF NATIONALIZATION DATED 23 .03 .2017 (RELEVANT EXTRACT ONLY) EXHIBIT R6 (B)TRUE COPY OF THE INTERIM ORDER DATED 22.05.2023 IN M.P NO: 990 OF 2023 IN MVAA NO: 121 OF 2023 EXHIBIT-R3(A)TRUE COPY OF THE NOTIFICATION VIDE G.O.(P) NO. 13/2023/TRANS. DATED 03.05.2023 ISSUED BY THE GOVERNMENT OF KERALA. ```