K.A. Sherif v. Regional Transport Authority, Kottayam and Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **FRIDAY, THE 11TH DAY OF AUGUST 2017/20TH SRAVANA, 1939** ## **WP(C).No. 17202 of 2017 (A)** **----------------------------** **PETITIONER(S): ------------------------** **K.A.SHERIF, BAHIRA MANZIL, KILIROOR NORTH P.O., KOTTAYAM.** ## **BY ADV. SRI.P.DEEPAK** **RESPONDENT(S): --------------------------** **1. THE REGIONAL TRANSPORT AUTHORITY KOTTAYAM, REPRESENTED BY ITS SECRETARY, KOTTAYAM - 686 001.** **2. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPURAM - 695 001.** **R1 BY SENIOR GOVERNMENT PLEADER SMT.C.S SHEEJA R2 BY ADVS. SRI.P.C.CHACKO, SC SRI.JOHN MATHEW, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 17202 of 2017 (A)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------EXHIBIT P1 A TRUE COPY OF THE APPROVED SCHEME OF NATIONALIZATION DATED 14.07.2009. EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 20.06.2011 IN MVARP NO. 22 OF 2011.** **EXHIBIT P3 A TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 02.02.2017.** **RESPONDENT(S)' EXHIBITS - NIL.** **-------------------------------------------------** ## **/TRUE COPY/** **PS TO JUDGE** **TS** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C) No.17202 of 2017 ----------------------------------------------Dated this the 11[th] day of August, 2017** ## **J U D G M E N T** This writ petition is filed by the petitioner seeking to quash Ext.P3 order dated 2.2.2017 passed by the 1[st] respondent, whereby renewal of regular permit in respect of the vehicle operated by the petitioner was rejected and the Secretary, RTA is given liberty to issue four months temporary permit until KSRTC resumes service on the route in question. 2. Material facts for the disposal of the writ petition are as follows; petitioner applied for the grant of regular permit to conduct service on the route Kanjiram Jetty - Kottayam, a short distance of 8 Kms falling completely within the jurisdiction of the 1[st] respondent. The said application was considered by the 1[st] respondent in its meeting held on 23.12.2010. On that occasion, it was contended by the 2[nd] respondent that, the grant of permit as sought for by the petitioner would offend the approved scheme of W.P.(C). No.17202 of 2017 2 nationalization published as G.O(P) No.42/2009/Tran. which came into force on 14.7.2009. The said contention of the 2[nd] respondent was upheld by the 1[st] respondent and the petitioner's application for fresh permit was rejected by an order dated 23.12.2010. Aggrieved by the said decision of the 1[st] respondent, petitioner filed a revision before the State Transport Appellate Tribunal under section 90 of the Motor Vehicles Act, 1988 as MVARP No.22 of 2011. The 2[nd] respondent was the 3[rd] respondent in the said revision petition. The Appellate Tribunal after calling for the records and after hearing the petitioner and the 2[nd] respondent, allowed the revision petition as per Ext.P2 order dated 20.6.2011 setting aside the decision of the 1[st] respondent and it was further directed to grant regular permit as sought for by the petitioner. The said order passed by the Appellate Tribunal has become final. 3. Thereupon, petitioner was issued with a regular permit valid for a period of 5 years from 11.11.2011 to W.P.(C). No.17202 of 2017 3 10.11.2016. During October, 2016 petitioner applied for renewal of the permit for a further period of 5 years from 11.11.2016. The said application was taken up for consideration in the meeting of the 1[st] respondent held on 2.2.2017. However, petitioner is served with Ext.P3 order refusing renewal of permit. It is thus challenging Ext.P3, this writ petition is filed. 4. First respondent has filed a counter affidavit refuting the allegations and claims and demands raised by the petitioner. Basically it is contended that, Ext.P3 order is passed by the 1[st] respondent in accordance with law since the Government Notification, 42/09 dated 14.7.2009 prohibits grant of permit to the petitioner. As per clause 5(c) of the above notification permit cannot be granted to the private operators, if the overlapping is 5 Kms. or 5% of the route length, whichever is less on the notified route. That part it is stated that, even though, the State Transport Appellate Tribunal has passed Ext.P2 order, petitioner is not W.P.(C). No.17202 of 2017 4 entitled to get renewal of permit. In the judgment rendered by this court in **Kerala State Road Transport Corporation v. Regional Transport Authority** [2013(2) KLT 280] it is held that a private operator of stage carriage service traversing the same line of travel on notified route cannot be permitted to overlap for a distance beyond the limit prescribed on the ground that it is an inevitable intersection. That apart it is contended that, the said judgment was rendered by this court on the basis of the dictum laid down by the Apex Court in **Karnataka State Road Transport Corporation v. Ashrafulla Khan** [(2002) 2 SCC 560 = 2002 KHC 1150]. Therefore, according to the 2[nd] respondent, no interference is warranted to Ext.P3 order. 5. Heard learned counsel for the petitioner, learned Senior Government Pleader and learned Standing Counsel for the 2[nd] respondent. 6. The paramount contention advanced by learned W.P.(C). No.17202 of 2017 5 counsel for the petitioner is that, Ext.P2 order of the Appellate Tribunal has attained statutory finality and therefore, the 1[st] respondent herein, who is bound by the findings in Ext.P2 order, and since acquiesced with the same ought to have renewed the permit granted to the petitioner. It is also the contention of the learned counsel that, Ext.P2 order of the Appellate Tribunal is unimpeachable and thoroughly in consonance with the proposition of law laid down by the Supreme Court in **Ashrafulla** (supra). Learned counsel has invited my attention to the said judgment of the Apex Court and specifically to paragraph 25, which read thus: “25. An example posed by the Full Bench in its judgment as to what happens when an operator on a non-notified route has to cut across a notified route by taking 'U' turn on a notified route and then taking left turn to enter on a non-notified route was not an appropriate. In such a case, it may not amount to overlapping. It would be only intersection. There may be a crossing where there is an island in the centre W.P.(C). No.17202 of 2017 6 and a private operator in order to go from nonnotified route to another non-notified route has to make a semi circle of a notified route. In that case also, it would be not overlapping, but it would be an intersection because it only cuts across the notified route because of size of crossing or traffic regulations.” 7. It is also contended that, Ext.P3 has been rendered in exercise of the powers conferred under sub-section(2) of Section 103 for giving effect to an approved scheme of nationalization, however, the said power cannot be exercised in respect of a permit, which has been granted after the scheme has come into effect. 8. On the other hand learned Government Pleader contended that, Ext.P3 order passed by the 2[nd] respondent is absolutely justified in view of the Notification, 42/2009 and therefore, there are no justifiable circumstances warranting interference of this court. So also learned counsel for the 2[nd] respondent Corporation has invited my attention to the judgment of the Apex Court in **B.A.Linga Reddy and** W.P.(C). No.17202 of 2017 7 **others v. Karnataka State Transport Authority and others** [(2015) 4 SCC 515]. Relying on the said judgment learned counsel contended that, the scheme permitting exceptions only when non-notified routes cut across or intersect notified routes and therefore, a permit cannot be granted for a non-notified route which overlaps or traverses the same line of travel as a portion of notified route. It is also contended that, it is not of significance whether area of overlapping is a small area or a larger area or whether it falls within the local limits of a town or a village. Learned counsel has also relied on the judgment of this court in **Kerala State Road Transport Corporation** (supra) wherein it is held that, a private operator of stage carriage service traversing the same line of travel on notified route cannot be permitted to overlap for a distance beyond the limit prescribed on the ground that it is an 'inevitable intersection'. 9. On evaluation of the contentions advanced by the W.P.(C). No.17202 of 2017 8 respective counsel, the formidable question that arises for consideration is whether Ext.P3 order passed by the 1[st] respondent by virtue of Ext.P2 order passed by the Tribunal in MVARP No.22/2011 dated 20.6.2011 can be sustained under law. Ext.P2 order passed by the Tribunal, it is held in paragraph 3 as follows: “According to the learned counsel for the petitioner, the overlapping on the notified route from Seemati Round to Gomathi Pumb Junction and pulimoodu Junction to Gandhi Square is only due to inevitable intersection as there is no alternate way for the stage carriages to reach Nagampadam Bus Stand. It it is inevitable intersection, the said overlapping cannot be said to be objectionable. The authority below while considering the said question has vaguely mentioned in the impugned order that “the applicant could reach the destination without such overlapping through other alternative route.” The learned counsel for the petitioner has pointed out that if there W.P.(C). No.17202 of 2017 9 is any such alternative route for avoiding such overlapping, the authority below ought to have issued the permit through such alternate route. It has been pointed out that there is no such alternate way for stage carriages on account of the traffic restrictions in Kottayam. The Chairman of the Kottayam Municipality has issued Ext.P5 certificate stating that due to the traffic restrictions in Kottayam Town stage carriages can enter Nagampadam Bus Stand from Seemati Round through Baker Junction and from Ceaser Palace Junction. When there is no alternate route is available, the said overlapping can only be treated as inevitable intersection. Matters being so, the impugned order is liable to be set aside.” 10. Therefore, the respondents have no case that, the inter-party order so passed in revision has not attained finality even though learned counsel for the 2[nd] respondent has a contention that the issue was considered by this court in **Kerala State Road Transport Corporation** (supra). In W.P.(C). No.17202 of 2017 10 my considered opinion, since a specific finding was rendered by the State Transport Appellate Tribunal in respect of the route in question, same is an inter party order binding on the respective parties therein. The respondents were parties in the aforesaid proceedings. Therefore, the said order has become final and conclusive. In that view of the matter, I am of the considered opinion that, 1[st] respondent ought to have followed the same, being a binding order liable to be followed by the 1[st] respondent. That apart 2[nd] respondent is not having a case that, the vehicle operated by the petitioner could traverse through any other route to reach the destination. The expression intersection is a proposition or doctrine brought forth by the Apex Court in the judgment in **Mysore State Road Transport Corporation** v. **Mysore Revenue Transport Appellate Tribunal** [1975(1) SCR 493 (See **Karnataka State Road Transport Corporation v. Ashrafulla Khan** [(2002) 2 SCC 560]. In this regard para 25 of **Ashrafulla** referred to supra is relevant. In my W.P.(C). No.17202 of 2017 11 considered opinion, an inevitable intersection is an unavoidable one and it depends on place to place, District to District and State to State. This is more so, in a small State like Kerala, wherein the roads are narrow, congested and density of traffic is high. When two terminus are provided for a stage carriage to traverse, the stage carriages can only traverse through broader and wider routes. Therefore, even if there are roads narrow in nature, the stage carriages cannot be operated through such narrow routes due to the restrictions in the event and otherwise made to traverse through the same. Therefore, if the stage carriage has to travel through an intersection to reach the destination, it is an inevitable intersection, coherent in the route provided. 11. Yet another aspect that has come into my notice from Ext.P3 order is that, the 1[st] respondent is of the opinion that, the 2[nd] respondent is not operating sufficient vehicles to cater the needs of the public and it was thereupon that, a direction is issued to the Secretary, RTA to issue four W.P.(C). No.17202 of 2017 12 months temporary permit until KSRTC resumes service on the said route. 12. The above discussion would also make it clear that, 1[st] respondent has not taken into account Ext.P2 order and other legal circumstances while passing Ext.P3 order. Therefore, petitioner is entitled to succeed in this writ petition. Accordingly, I quash Ext.P3 and direct the 1[st] respondent to renew the permit in accordance with law as is sought for in the application at the earliest. Writ petition is allowed accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 07.08.2017