KERALA STATE ROAD TRANSPORT CORPORATION v. REGIONAL TRANSPORT AUTHORITY, KOLLAM and BALACHANDRAN PILLAI

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934 WP(C).No. 10933 of 2012 (N) --------------------------- PETITIONER: ------------- THE KERALA STATE ROAD TRANSPORT CORPORATION THIRUVANANTHAPURAM-695 023 REPRESENTED BY ITS CHIEF LAW OFFICER P.SURESH KUMAR. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC RESPONDENTS: -------------- 1. THE REGIONAL TRANSPORT AUTHORITY KOLLAM-691 001, REPRESENTED BY ITS SECRETARY. 2. BALACHANDRAN PILLAI S/O.VASU PILLAI, MOHANALAYAM, ASHTAMUDI.P.O. KOLLAM DISTRICT, PIN-691 602. BY ADV. SRI.P.DEEPAK BY GOVERNMENT PLEADER SMT. ANITHA RAVINDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S) EXHIBITS EXT.P1- TRUE COPY OF THE NOTIFICATION NO.G.O.(P) 42/2009/TRAN DATED 14.7.2009 PUBLISHED IN THE KERALA GAZETTE DATED 14.7.2009. EXT.P2- TRUE COPY OF THE ORDER NO.C2/111808/2010/Q DATED 8.12.2010 OF THE IST RESPONDENT. EXT.P2[A]-TRUE PHOTOCOPY OF THE JUDGMENT IN KARNATAKA STATE ROAD TRANSPORT CORPORATION V.ASHRAFULLA KHAN AND OTHERS REPORTED IN 2002(2) SCC 560 OF THE HON'BLE SUPREME COURT OF INDIA. EXT.P3- TRUE COPY OF THE ORDER DATED 11.5.2011 IN M.V.A.A.52/2011 OF THE LEARNED STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM. EXT.P4- TRUE COPY OF THE ORDER NO.C3/111808/2010/Q. DATED 9.4.2012 ISSUED BY THE IST RESPONDENT. EXT.P5- TRUE COPY OF THE ORDER DATED 24.4.2012 IN W.P.[C]NO.10136/2012 OF THIS HON'BLE COURT. EXT.P6: TRUE COPY OF THE TEMPORARY PERMIT NO:C1/47/12/Q ISSUED BY THE REGIONAL TRANSPORT AUTHORITY, KOLLAM EXT.P7: TRUE COPY OF THE MEMORANDUM NO:TR 1-001464/2012 DATED 24-4-2012 ISSUED BY THE KERALA STATE ROAD TRANSPORT CORPRATION EXT.P8: TRUE COPY OF THE JUDGMENT DT.16.3.2012 IN W.A.NO:502/2012 OF THIS HONOURABLE COURT RESPONDENTS' EXHIBITS EXT.R2A: A TRUE COPY OF THE JUDGMENT DT.30-11-2011 IN WPC NO:29763/2011 EXT.R2B: -DO- DT.24.1.2012 IN WA NO:62 OF 2012 EXT.R2C: -DO- DT.30.3.2012 IN WPC 7042 OF 2012 EXT.R2D: -DO- REGULAR PERMIT VALID TILL 12-4-2017 EXT.R2E: -DO- TIMING CONFERENCE DT.21.4.2012 EXT.R2F: -DO- OF COMMUNICATION DT.11-5-2012 EXT.R2G: -DO- OF THE COMPLAINT DT.20.4.2012 JJ /TRUE COPY/ P.S.TO JUDGE **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 10933 OF 2012 ----------------------------------------------------------Dated this the 2[nd] July, 2012.** ## **JUDGMENT** This is a writ petition filed by the Kerala State Road Transport Corporation (KSRTC for short) seeking the following reliefs:- “i) issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exts.P3 and P4; ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1[st] and 2[nd] respondents to strictly follow the mandate in Ext.P1 and the law laid down by the Hon'ble Supreme Court in Karnataka State Road Transport Corporation v. Ashrafulla Khan and others reported in 2002(2) SCC 560 (Ext.P2(a); iii) issue such other writ, order or direction, which may deem fit in the facts and circumstances of the case.” 2. The second respondent had submitted an application for the grant of a regular permit for conducting services on the route Kureepuzha KSRTC junction to Malanada, via Neeravil, Kadavoor, Anchalammoodu, Kundara-Mukkada, Mulavana, Bharanikkavu,Kakkakunnu, Patharam and Chakkuvally. The said WPC 10933/2012 2 route was overlapping the notified Kollam-Kumbalam complete exclusion route to an extent of 700 meters. Therefore, as per Ext.P2 order the application submitted by the second respondent was rejected by the first respondent. The petitioner challenged Ext.P2 before the State Transport Appellate Tribunal (STAT for short) by filing M.V.A.A.52/2011. As per Ext.P3 judgment, the second respondent's appeal was allowed and the first respondent was directed to grant fresh regular permit as sought for. Ext.P3 judgment was the subject matter of challenge in W.P(C)29763/2011 at the instance of the Quilon District Private Bus Operators Association and another person. The petitioner herein was the fourth respondent in the said writ petition. As per Ext.R2(a) judgment, the said writ petition was dismissed. The petitioners in the said writ petition challenged Ext.R2(a) before the Division Bench in W.A.62/2012. As per Ext.R2(b), the writ appeal was also dismissed. 3. Pursuant to the dismissal of the writ appeal the second respondent was granted a regular permit. However, the timings were not settled and therefore the second respondent could not conduct the services. Therefore, the second respondent again approached this Court by filing WP(C) 7042/2012. As per Ext.R2(c) judgment, this Court directed the authorities to convene a timing WPC 10933/2012 3 conference and to settle the timings of the second respondent. Accordingly, a timing conference was conducted on 21-4-2012, as evident from Ext.P4. It was at the said juncture that this writ petition was filed by the petitioner challenging Exts.P3 and P4. 4. This writ petition was admitted on 8-5-2012 and an interim order of stay was granted by this Court. The said interim order is in force till this date. On receipt of notice, the second respondent appeared and has filed counter affidavit disputing the assertions made by the petitioner and challenging even the bonafides in filing this writ petition at such a belated stage. It is contended that the second respondent was running from pillar to post, seeking the issue of a regular permit to conduct services on the route in question. Though the proceedings have continued from 2010 onwards through the STAT as well as this Court, the petitioner was all the time sitting on the fence watching the proceedings. Thereafter, at a point of time when peremptory directions issued by this Court as per Ext.R2(c) were about to be complied with , they have filed this writ petition suppressing Exts.R2(a) and R2(b) and making statements that are contrary to facts. For the above reasons it is contended that this writ petition is liable to be dismissed. WPC 10933/2012 4 5. I have heard Adv.Babu Joseph Kuruvathazha who appears for the petitioner and Adv.P.Deepak who appears for the second respondent at length. I have been taken through the records of the case produced before me. I have been referred to various provisions of the Motor Vehicles Act and the decisions of this Court as well as the Supreme Court. I have considered the rival contentions advanced before me, anxiously. 6. Ext.P1 is the scheme that is relied upon by the petitioner, Clause 5(c) permits overlapping on the notified route to the extent of 5 kms. or 5% of the length of the route of the private operator, whichever is less, for the purpose of intersection. Clause 5(a) mentions that the scheme is only a partial exclusion scheme. According to the counsel for the petitioner, Rule 19 reserves “the right to operate any new service and to increase the trips in the 31 routes in annexure or its portions” for the state transport undertaking. Therefore, it is contended that the grant of permit to the second respondent is impermissible and liable to be set aside. 7. As rightly pointed out by the counsel for the second respondent, Ext.P2 proceedings by which the second respondent's application was initially rejected by the first respondent shows that the only reason for rejection is that, “route portion from Elampalloor to Kundara Mukkada (700 meters) objectionably WPC 10933/2012 5 overlaps Kollam-Kumbalam, complete exclusion scheme”. For the above reason, the petitioner's application for regular permit on the route Kureepuzha KSRTC junction to Malanada was rejected. Ext.P2 was set aside by the STAT as per Ext.P3 judgment. The reasoning of the STAT is contained in paragraph 3 of Ext.P3 which reads as follows:- “It has to be noted that the total route length is 56 kms. Apart for a distance of 2.5 kms from Elampalloor to Kundara Pallimukku, all the remaining portions of the route traverses through interior area. The aforesaid 2.5 kms portion falls on NH 208, which is Kollam-Pamba scheme. A portion of 700 meters from Elampalloor to Mukkada falls within KollamKumbalam complete exclusion scheme. It has to be noted that there is no other way to reach Mukkada from Elampalloor otherwise than through the said 700 ms portion on the complete exclusion scheme. Matters being so, it has to be considered as an inevitable intersection. Considering the same, this Tribunal is of the view that the appellant cannot be deprived of from getting the permit on the ground of a meager inevitable intersection over 700 kms. Therefore, the impugned order is liable to be set aside.” Therefore, it is the STAT that has noted for the first time that apart from the overlapping on the Kollam-Kumbalam complete exclusion WPC 10933/2012 6 scheme, for a distance of 2.5 kms. from Elampalloor to Kundara Pallimukku the route was also overlapping the Kollam-Pamba scheme. The permit has been granted for the reason that the overlapping on Ext.P1 notified route was permissible under Clause 5(c) thereof. The 700 mtrs. of overlapping on the complete exclusion scheme has been found to be an inevitable intersection. 8. As stated above, Ext.P3 was the subject matter of challenge in WP(C) 29763/2011. The said writ petition was dismissed as per Ext.R2(a). A reading of Ext.R2(a) shows that P.N.Ravindran, J has gone into the question of overlapping, considered the various decisions on the point and has come to a conclusion that Ext.P3 did not call for any interference at the hands of this Court. After considering the issue His Lordship has summarized his conclusions in paragraph 5 of Ext.R2(a), which reads as follows:- “I have considered the submissions made at the Bar by the learned counsel on either side. Apart from vaguely alleging that there is an alternate route to proceed from Kundara Mukkada to Elampallur, the petitioner has not described the alternate route with clarity. Ext.P14 sketch does not disclose the alternate route from Kundara Mukkada to Elampallur. The petitioner has also not chosen to give the length of the alternate route. It is also relevant to note that a WPC 10933/2012 7 portion of the route having a length of 2.50 kms is covered by the Kollam - Pampa scheme which is not a complete exclusion scheme. In view of the provisions contained in G.O.(P) No.42/2009/Trans. dated 14[th] July, 2009 as the overlapping is not in excess of 5% of the total route length namely not in excess of 2.80 kilometers a permit can be granted to the petitioner. The Kollam Kumbalam complete exclusion scheme is a 1962 scheme. The Kollam - Pampa scheme is a 2009 scheme. Necessarily therefore by implication it will have to held that the Kollam Kumbalam total exclusion scheme stands modified to the extend covered by the Kollam Pampa scheme. Therefore even assuming that there is an alternate way to proceed from Kundara Mukkada to Elampallur it cannot be stated that there is a complete exclusion on the 700 meters portion of the route from Kundara Mukkada to Elampallur under the Kollam Kumbalam scheme. Therefore for that reason also, I am of the opinion that the State Transport Appellate Tribunal was perfectly right in directing the grant of the permit.” 9. Ext.R2(a) judgment was challenged in W.A.62/2012 by the writ petitioners. The Division Bench of this Court considered the matter and affirmed Ext.R2(a) judgment. 10. One significant aspect that assumes importance on a reading of both Exts.R2(a) and R2(b) judgments is that both the Single Bench of this Court as well as the Division Bench have taken WPC 10933/2012 8 note of the fact that though the KSRTC is the beneficiary of the scheme, the said authority has not chosen to challenge the judgment of the STAT. In Ext.R2(b), in paragraph 8 the Division Bench of this Court has made the following observation:- “That apart, what we notice is, the appellants have no _locus standi_ to challenge the verdict of the Tribunal as well as the judgment of the learned Single Judge in view of the fact that the most important beneficiary of the route, i.e. K.S.R.T.C having not challenged either the order of the Transport Tribunal or the judgment of the learned Single Judge”. According to the counsel for the petitioner, this writ petition has been filed because the Division Bench in Ext.R2(b) has noticed that the KSRTC is the beneficiary of the notified scheme and therefore, they are entitled to file this writ petition. The counsel for the second respondent points out that Ext.P3 judgment of the STAT is dated 11-5-2011 whereas this writ petition is filed only on 7-5-2012 almost an year after Ext.P3 was pronounced. The KSRTC was fully aware of Ext.P3 judgment because it was a party to both Exts.R2 (a) and R2(b) judgments. Ext.R2(a) judgment is dated 30-11-2011 and Ext.R2(b) judgment is dated 24-1-2012. Therefore, this writ petition is filed almost five months after Ext.R2(b). The only reason stated for the delay is in ground C of the writ petition wherein, WPC 10933/2012 9 according to the petitioner due to administrative reasons there was delay in challenging Ext.P3 order. 11. The petitioner being a statutory Corporation and public sector undertaking cannot be presumed to have been unaware of the necessity of challenging Ext.P3 at the appropriate time. It is to be borne in mind that the petitioner has sufficient infrastructure for obtaining legal advice in such matters. Therefore, the casual statements made in ground C cannot be accepted as sufficient or acceptable explanation for the delay that by any standards is inordinate in the present case. 12. That apart, the only grievance advanced by the petitioner in this writ petition is also regarding violation of clause 19 and clause 5(c) of Ext.P1. As already noticed, the said contention has been considered by this Court in the earlier proceedings referred to above. A further contention regarding the actual length of the route of the petitioner is also raised. I am not satisfied that there is any bonafides in the said contention raised at this belated stage. Laches is clear from the overall conduct of the petitioner. Despite having been a party to Exts.P3, R2(a) and R2(b) they had not chosen to challenge Ext.P3 within a reasonable period of time. If the petitioner had any genuine grievance they would certainly have challenged Ext.P3. By not having challenged Ext.P3 the said WPC 10933/2012 10 judgment has become final and conclusive, binding inter parties. The petitioner was arrayed as a respondent in Exts.R2(a) and R2(b). There also the petitioner did not put forward any challenge against Ext.P3. Thereafter, as per Ext.R2(c) this Court directed the authorities to issue the permit to the second respondent and as per Ext.R2(e) a timing conference was also notified. It is only when Ext.P4 was issued on 9-4-2012 that the petitioner thought of challenging Exts.P3 and P4. I am not satisfied that there is any justification in permitting the petitioner to reopen and reagitate the issues that have been concluded by the previous proceedings Exts.P3, R2(a) and R2(b). For the above reasons, the writ petition fails. The same is accordingly dismissed with costs. Sd/K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge WPC 10933/2012 11