KERALA STATE ROAD TRANSPORT CORPORATION v. AKASH DEV K.A and others

**'CR'** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941 ## WA.No.42 OF 2016 AGAINST THE ORDER DATED 23.12.2015 IN WPC 36252/2015 DATED 23-12-2015 OF HIGH COURT OF KERALA ## APPELLANT/4TH RESPONDENT: KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM, 695 013, REP. BY ITS CHAIRMAN & MANAGING DIRECTOR. BY ADVS. SRI.P.C.CHACKO(PARATHANAM) SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION ## RESPONDENTS/PETITIONER & RESPONDENTS 1-3: - 1 AKASH DEV K.A KALAHTIL PARAMBIL HOUSE, VALUMMEL , THOPPUMPADY, KOCHI - 682 005. 2 THE GOVERNMENT OF KERALA REP BY PRINCIPAL SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARAIT, THIRUVANANTHPAURAM, 695 001. - 3 THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM 682 001 - 4 THE SECRETARY REGIONAL TRANSPORT AUTHORITY, ERNAKULAM 682 001. R2-4 BY SRI. ARAVIND KUMAR BABU, SR. GOVERNMENT PLEADER R1 BY SRI. P. DEEPAK THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 42/2016 : 2 : ## ' **CR'** ## **JUDGMENT** ## **Dated this the 13th day of February 2020** ## **S. Manikumar, CJ** This appeal is directed against the order dated 23.12.2015 in W.P.(C) No. 36252 of 2015. 2. Today, when the matter is taken up for consideration, learned counsel for respondent No.1 submitted that nothing survives in this appeal for further adjudication. 3. On the other hand, Sri. P.C. Chacko, learned Standing Counsel for the appellant Corporation submitted that the issue is squarely covered, in favour of the appellant by the decision of the Hon'ble Apex Court in **Kerala State** **Road Transport Corporation v. Baby** reported in 2018(2) KLT 974. 4. Short facts leading to the writ appeal are as follows: The first respondent is the owner of a stage carriage bearing Registration No. KL-07/R 5599. Earlier, permit was W.A. No. 42/2016 : 3 : issued to conduct service on Aluva-Panangad route as city service. The vehicle has subsequently defaulted. Therefore, he applied for a temporary permit to operate 'substitute service' in the vacancy of the defaulted route and was issued with Ext.P3 permit valid for a period of four months from 06.07.2015 to 05.07.2015. However, the writ petitioner's application for reissue of temporary permit was rejected as per Ext.P6 order on the ground that grant of permit as sought for by the first respondent would offend Ext.P7 approved scheme of nationalization dated 14.07.2009 published as SRO No. 608 of 2009. According to the first respondent/writ petitioner, in Ext.P6 proceedings, it was admitted that the vacancy of the aforesaid stage carriage was in existence. The first respondent has issued a notification directing the transport authorities in the State to issue permits to operate 'Limited Stop Ordinary Service' (LSOS) permits to all the stage carriage permits which had been issued with permits to operate higher class of services like fast passenger, super fast etc. The grievance of the first respondent/writ W.A. No. 42/2016 : 4 : petitioner is that eventhough Ext.P7 scheme has been made applicable to all the classes of stage carriage services, the benefit of Ext.P9 notification was confined to erstwhile operators of higher class of services. Aggrieved by the same, writ petition has been filed by the first respondent. While admitting the writ petition, writ court directed to reissue temporary permit on the same route pending disposal of the writ petitioner. Hence this appeal. 5. Order dated 23.12.2015 in W.P.(C) No. 36252 of 2015 impugned in this appeal is as follows: “Admit. The petitioner hitherto granted temporary permit in defaulted vacancy shall be re-issued with temporary permit for a period of two weeks on the same route pending disposal of the writ petition. Post on 05.01.2016 along with W.P.(C) No. 38577/2015.” 6. Being aggrieved, instant appeal is filed on the following grounds: “A. The learned single Judge should have found that Ext.P7 scheme published under Sec. 100(3) of the Motor Vehicles Act on 14.07.2009. The validity of the scheme has been upheld by this Hon'ble Court. After the scheme is approved, published, private operators have no right to claim temporary permit to operate their vehicle on the notified route or portion thereof because the scheme W.A. No. 42/2016 : 5 : is a law and prevails till varied according to law. Therefore, private operators cannot be allowed to enter into the prohibited routes or portion thereof covered by the scheme through back doors by taking temporary permit as held by the Hon'ble Supreme Court in UP State Roadways Transport Corporation, Lucknow vs. Anwar Ahammed and others reported in 1997(3) SCC 191. Therefore, the direction of the learned single Judge is to be set aside. B. The learned single Judge should have found that the first respondent is having an alternative efficacious remedy against Ext.P6 order before the State Transport Appellate Tribunal as provided under Section 90 of the Motor Vehicles Act, 1988. As per Exhibit P6 order, the application for temporary permit has been rejected by the 3[rd] respondent stating that the proposed route objectionably overlaps 28 kms from Aluva--Vyttila on the Ernakulam-Thekkady, Thiruvananthapurm--Palakkad notified route as per Exhibit P7 notification. As per clause 5(C) of the above notification, regular or temporary permit cannot be granted if the route overlaps 5 kms or 5% of the length of the route, whichever is less on the notified route. As a matter of fact in the present case admittedly 28 kms objectionably overlaps on the notified route, total route length is 32 km and permissible overlapping is only 1.6 km. C. The contention of the first respondent is that the proposed route Aluva-Panangad is a city service is not correct. The termini of the proposed route is situate away from the city limit. Rule 2(ca) of the Kerala Motor Vehicles Rules 1989 defines city or town service means a service plying within the parameter of a city or Municipal town, notified as city or town service by the Government and both the terminals of which shall not extend beyond 5 kms from the city W.A. No. 42/2016 : 6 : or town limit. In the present case, both the terminals of the proposed route Aluva and Panangad is situate 5 kms away from the Cochin Corporation city limit. D. The learned single Judge should have considered the objection raised by the KSRTC and dismissed the writ petition. As a matter of fact, the issue involved in the case is covered by the dictum laid down by this Hon'ble Court in _**Akash Dev vs. State of Kerala and others**_ reported in 2015(2) KLJ 32, _**Sukumar K.V v. Regional Transport Authority, Ernakulam and others**_ reported in 2013(4) KHC 411 and the _**Managing Director, KSRTC vs. Secretary, Regional Transport Authority**_ reported in 2013(1) KHC 820. Therefore, the order of the learned single Judge is liable to be set aside by this Hon'ble Court. E. The contention of the writ petitioner that the direction contained in Exhibit P9 notification is applicable to all classes of stage carriage services, including city, town services is not correct. Exhibit P9 notification itself is illegal and that is under challenge before this Hon'ble Court and that is not applicable to the writ petitioner also because the benefits of Exhibit P9 notification are applicable only to the person who got regular permit to the passing of Exhibit P7 notification dated 14.07.2009. In the case of the writ petitioner, he has not got any valid regular permit prior to 14.07.2009. Therefore, the writ petitioner is not entitled to get any claim on the basis of Exhibit P9 notification.” ## 7. Though Mr. P. Deepak, learned counsel for respondent No.1 stated that the writ appeal has become infructuous, Mr. P. Santhosh Kumar, learned Senior W.A. No. 42/2016 : 7 : Government Pleader seeks for interference on merits by considering the decision of the Hon'ble Apex Court in **Baby** (supra). True that, considering the period of temporary permit, writ appeal may be infructuous. Notwithstanding the above, when a issue as to whether temporary permit can be issued or not, is raised in this appeal, we decide to consider the request of the State. 8. After considering the scheme and the relevant provisions of the Motor Vehicles Act, 1988, the Hon'ble Apex Court in paragraphs 37 and 38 of the aforesaid decision held thus: 37. In view of this discussion, the following answer emerges:  A temporary permit cannot be issued to a private stage carriage operator to traverse on the notified route which is being served by the STU, in excess of the permissible distance provided under the scheme.  To rephrase, under the facts of this case, it is not open for a private stage carriage operator (the respondent no. 1) to operate its services by overlapping on a notified route for more than 5 kms or 5% (whichever is less) of the route of the private stage carriage operator (as specified under the Scheme) which is being served by the STU. 38. Accordingly, the judgment of STAT, the consequent order of W.A. No. 42/2016 : 8 : the RTA granting temporary permit to the respondent No. 1, as well as the judgment of the High Court, are set aside. The appeals before us are hereby allowed. Consequently, O.P.(C) No. 1827 of 2017, as preferred by the appellant KSRTC, stands allowed. As regards the O.P.(C) No. 1784 of 2017 and O.P.(C) No. 581 of 2017, the same order shall govern their outcome.” 9. Going by the facts of the instant writ appeal, we are of the view that the decision of the Hon'ble Apex Court in **'Baby's** ' case is squarely applicable to the case on hand. In the light of the aforesaid decision, the impugned order is set aside, and writ appeal is allowed accordingly. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** Rv W.A. No. 42/2016 : 9 :