K.T. Rajashekara v. M.S. Poornima & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938** ## **WP(C).No. 17426 of 2013 (C)** **----------------------------** **MVAA 140/2011 OF STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM** **-------------** **PETITIONER:** **----------** **K.T.RAJASHEKARA, AGED 69 YEARS, S/O.LATE K.GOWDA, PROPRIETOR, SRS TRAVELS, NO.321, T.S.P ROAD, KALASIPALYAM, BANGALORE-560 002.** **BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENT(S):** - **--------------** **1. SMT.M.S.POORNIMA, PROPRIETOR, MODERN TRAVELS, SHANKAR MUTT ROAD, MYSROE-570 004.** **2. STATE TRANSPORT AUTHORITY, KERALA, THIRUVANANTHAPURAM-695 001.** **REP. BY ITS SECRETARY.** **3. THE SECRETARY,** - **STATE TRANSPORT AUTHORITY, KERALA, THIRUVANANTHAPURAM. 695 001.** **4. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 695 001.** - **ADDL R4 IMPLEADED** **5. KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL OFFICE,SARIGA BHAVANA,SANTHINAGAR, BANGALORE,REPRESENTED BY THE CHIEF LAW OFFICER.** - **ADDL R5 IS IMPLEADED AS PER ORDER DATED 22/11/2016 IN IA NO 3373/2014.** **R2,R3 BY SPL GOVERNMENT PLEADER SRI SANTHOSH KUMAR P R4 BY ADV. SRI.P.C.CHACKO, SC, R5 BY ADV. SRI.K.P.JUSTINE (KARIPAT)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 17426 of 2013 (C)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **-----------------------** - **P1- TRUE COPY OF THE JUDGMENT IN APPEAL NO.1268/2007 RENDERED BY THE STATE TRANSPORT APPELLATE TRIBUNAL, KARNATAKA, DATED 15.10.2007.** - **P2- TRUE COPY OF THE DECISION OF THE STATE TRANSPORT AUTHORITY, KARNATAKA AT THE MEETING HELD ON 21.1.2008.** - **P3- TRUE COPY OF THE VARIATION OF CONDITIONS GRANTED IN THE REGULAR PERMIT BY THE STATE TRANSPORT AUTHORITY, KARNATAKA.** - **P4- TRUE COPY OF THE PROCEEDINGS OF THE STATE TRANSPORT AUTHORITY IN THE MEETING HELD ON 18.4.2008 IN THE TRANSPORT COMMISSIONERATE, THIRUVANANTHAPURAM.** - **P5- TRUE COPY OF THE JUDGMENT RENDERED IN M.V.A.A. 384/2008, DATED 10.9.2008.** - **P6- TRUE COPY OF THE JUDGMENT IN WP[C] 162/2010, DATED 1.6.2010.** - **P7- TRUE COPY OF THE PROCEEDINGS OF THE MEETING OF THE STATE TRANSPORT AUTHORITY, KERALA HELD ON 4.1.2011.** - **P8- TRUE COPY OF THE MEMORANDUM OF APPEAL IN M.V.A.A 140/2011, DATED 4.4.2011.** - **P9- TRUE COPY OF THE JUDGMENT IN M.V.A.A. 140/2011, DATED 6.5.2013.** - **P10 COPY OF THE ORDER NO CT/STA-5/TRPR 13/2011-12 DATED 7.7.2011.** - **P11: COPY OF THE ENDORSEMENT OF TRANSFER OF STAGE CARRIAGE PERMIT.** - **P12: COPY OF THE JUDGMENT DATED 22.10.2008 IN WPC 36173/2004.** **RESPONDENT(S)' EXHIBITS** - **-----------------------** **R4(A) COPY OF THE AGREEMENT DATED 30.6.1976 BETWEEN STATE OF KERALA AND KARNATAKA.** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **A. MUHAMED MUSTAQUE, J.** -------------------------------------------------- W.P.(C) No. 17426 of 2013 -------------------------------------------------Dated this the 19[th] day of December, 2016 ## **J U D G M E N T** - 1.The short issue in this writ petition is whether a single permit can be used for more than one carriage to operate on a route. Answering it in the negative, the State Transport Appellate Authority dismissed the appeal filed by the writ petitioner, challenging the rejection of counter signature of parties in Kerala by the State Transport Authority, the 2[nd] respondent. - 2.The route in question is covered by an interstate agreement entered into between the State of Kerala and Karnataka. The agreement was entered into on 29.06.1976. As per the said agreement, certain routes are allotted for exclusive operation by the Karnataka operators. In this writ petition, the route between Mysore and Mananthavady is involved. The maximum number of single trips in this route is fixed at six. The W.P.(C) No. 17426 of 2013 ..2.. petitioner was granted a permit to operate on this route for two round trips, i.e., four single trips. This, in fact, is originally issued in the name of the petitioner's predecessor-in-interest, who is the 1[st] respondent. As the predecessor-in-interest of the petitioner wanted to operate one more stage carriage using the same permit, she approached the State Transport Authority for counter signature for permit by varying permit conditions including one more stage carriage, which was declined by Ext.P7. This was challenged before the tribunal, which was affirmed by Ext.P9. During the pendency of the appeal, transfer was effected in favour of the petitioner. - 3.It is to be noted that the petitioner submitted an application for variation before the State Transport Authority, Karnataka, which was dismissed. However, this was allowed by the Karnataka State Appellate Authority. - 4.It is also to be noted that before the State Transport Authority and before the State Transport Appellate W.P.(C) No. 17426 of 2013 **==> picture [20 x 9] intentionally omitted <==** Tribunal, the KSRTC was also impleaded. KSRTC raised an objection contending that the State Transport Authority has no authority to grant additional vehicle as there is an interstate agreement. - 5.In this writ petition, the Karnataka State Road Transport Corporation got impleaded as additional 5[th] respondent, which also have raised similar objections. - 6.The learned senior counsel for the petitioner points out that the permit now issued to operate on the route will have to cover more than 450 kms in a day. The single road length is 114 kms. It is submitted that, covering 450 kms on a single day has been difficult for the operator as well as for the passengers. It is argued that there is no impediment in law to operate with one more stage carriage in a single permit. To substantiate this argument, the learned senior counsel relies on a decision of the Hon'ble Supreme Court in **Maharashtra State Road Transport Corporation** v. **State Transport Authority & Another** [(1973) 4 SCC 222] and also on an unreported decision of the Division W.P.(C) No. 17426 of 2013 **==> picture [20 x 9] intentionally omitted <==** Bench of this Court in W.A. No.1812/2002 dated 10.01.2003. 7.On the other hand, the learned Government Pleader as well as the learned Standing Counsel for the KSRTC, relying upon Section 83 of the Motor Vehicles Act, 1988, (for short, “the Act”) and also the definition under Section 2(31), would submit that more than one vehicle cannot be used for a permit issued under the Act. Further, the learned Standing Counsel for the KSRTC submits that to operate one more vehicle on this route, an agreement has to be entered between the two States and without such an agreement, more than one vehicle cannot be permitted. To substantiate the said contention, the learned Standing Counsel relies on the Full Bench decisions of the apex court in **R.Venkatesham Chetty** v. **State Transport Authority, Kerala** [(2004) 11 SCC 207] and **R.Venkatesham Chetty** v. **Karnataka & Others** [(2004) 13 SCC 659]. 8.The stand of the KSRTC before this Court is that if the W.P.(C) No. 17426 of 2013 ..5.. claim of the petitioner is allowed, it would amount to variation of permit and such variation would affect their operation. In this context, it is appropriate to refer to the relevant provisions, Sections 2(31), 70 & 72, of the Act. Section 2(31) of the Act is reproduced as follows; “(31) “permit” means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;” Section 70 of the Act is reproduced as follows; “70. Application for stage carriage permit.— (1) An application for a permit in respect of a stage carriage (in this Chapter referred to as a stage carriage permit) or as a reserve stage carriage shall, as far as may be, contain the following particulars, namely:— (a) the route or routes or the area or areas to which the application relates; (b) the type and seating capacity of each such vehicle; (c) the minimum and maximum number of daily trips proposed to be provided and the time-table of the normal trips. Explanation.— For the purposes of this section, section 72, section 80 and section 102, “trip” means a single journey from one point to another, and every return journey shall be deemed to be a separate trip; W.P.(C) No. 17426 of 2013 ..6.. (d) the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions; (e) the arrangements intended to be made for the housing, maintenance and repair of the vehicles, for the comfort and convenience of passengers and for the storage and safe custody of luggage; (f) such other matters as may be prescribed. (2) An application referred to in sub-section (1) shall be accompanied by such documents as may be prescribed.” ## Section 72 of the Act is reproduced as follows; “72. Grant of stage carriage permit.— (1) Subject to the provisions of section 71, a Regional Transport Authority may, on an application made to it under section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: Provided that no such permit shall be granted in respect of any route or area not specified in the application. (2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under this Act, attach to the permit any one or more of the following conditions, namely:— (i) that the vehicles shall be used only in a specified area, or on a specified route or routes; (ii) that the operation of the stage carriage shall be commenced with effect from a specified date; (iii) the minimum and maximum number of W.P.(C) No. 17426 of 2013 ..7.. daily trips to be provided in relation to any route or area generally or on specified days and occasions; (iv) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area; (v) that the stage carriage shall be operated within such margins of deviation from the approved time-table as the Regional Transport Authority may from time to time specify; (vi) that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down except at specified points; (vii) the maximum number of passengers and the maximum weight of luggage that may be carried on the stage carriage, either generally or on specified occasions or at specified times and seasons; (viii) the weight and nature of passengers’ luggage that shall be carried free of charge, the total weight of luggage that may be carried in relation to each passenger, and the arrangements that shall be made for the carriage of luggage without causing inconvenience to passengers; (ix) the rate of charge that may be levied for passengers’ luggage in excess of the free allowance; (x) that vehicles of a specified type fitted with body conforming to approved specifications shall be used: Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operating on that date; W.P.(C) No. 17426 of 2013 ..8.. (xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles; (xii) the conditions subject to which goods may be carried in the stage carriage in addition to or to the exclusion of passengers; (xiii) that fares shall be charged is accordance with the approved fare table; (xiv) that a copy of or extract from the fare table approved by the Regional Transport Authority and particulars of any special fares or rates of fares so approved for particular occasions shall be exhibited on the stage carriage and at specified stands and halts; (xv) that tickets bearing specified particulars shall be issued to passengers and shall show the fares actually charged and that records of tickets issued shall be kept in a specified manner; (xvi) that mails shall be carried on the vehicle subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified; (xvii) the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions; (xviii) the conditions subject to which vehicle may be used as a contract carriage; (xix) that specified arrangements shall be made for the housing, maintenance and repair of vehicle; (xx) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use; W.P.(C) No. 17426 of 2013 ..9.. (xxi) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority; (xxii) that the Regional Transport Authority may, after giving notice of not less than one month,— (a) vary the conditions of the permit; (b) attach to the permit further conditions: Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof; (xxiii) that the holder of a permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may from time to time prescribe; (xxiv) any other conditions which may be prescribed.” 9.The petitioner seeks permission for operating one more vehicle using the same permit, which was issued in favour of the petitioner to operate on the route. He neither seeks any additional trip nor any variation of permit conditions. He wants to confine the operation on the route with maximum trips allotted to him as per W.P.(C) No. 17426 of 2013 **==> picture [26 x 9] intentionally omitted <==** the permit, i.e., four trips. Therefore, the only question is whether the petitioner can be permitted to use one more stage carriage to operate with the permit already issued to him in respect of the vehicle, bearing Reg.No.KA-09A/-6171, as per Ext.P3. 10.Section 2(31) of the Act only refers to a permit issued in respect of a motor vehicle. Nowhere it is stipulated that a permit cannot be used for more than one vehicle. The emphasis under Section 2(31) of the Act is the use of a vehicle as transport vehicle. Therefore, to use the vehicle as a transport vehicle, a permit is necessary and it cannot be said in the teeth of Section 2(31) that one vehicle alone can be used with a permit issued under the Act. Section 70 refers to the application for stage carriage permit. This provision also does not indicate that permit can only be confined to the use of single vehicle. Section 71 refers to the procedure of Regional Transport Authority in considering the application for stage carriage permit. This Section is corresponding to Section 44 of 1937 Act. Section 72 refers to the grant W.P.(C) No. 17426 of 2013 ..11.. of stage carriage permit. A combined reading of these provisions does not indicate that the permit can be confined to the use of one vehicle alone. The only limitation under the Act is against the use of a vehicle as a transport vehicle without having a valid permit. Therefore, in appropriate circumstances, it is open for the authority to permit an operator to use the same permit for more than one vehicle. 11.In this context, it is appropriate to refer to an unreported Division Bench decision (WA No.1812/2002) of this Court passed in the similar circumstances. This Court considered the matter in a dispute where the State Transport Authority held that the permit cannot be given in respect of more than one vehicle. This Court, after a detailed discussion, held that increase in the number of vehicles under one permit would not be inconsistent with the provisions of the approved scheme. It is to be noted that in that case, additional number of trips was sought to be included by varying permit conditions in terms of Section 83 of the Act. W.P.(C) No. 17426 of 2013 ..12.. ## 12.The apex court, in **Maharashtra** 's (cited supra) case, ## observed in paragraph 3 as follows; “....It may be that the R.T.A. may give a single permit for more than one carriage or one permit for each carriage. That is merely a matter of procedure. The next contention of Mr.Agrawala was that the fixation of the number of trips made by the R.T.A. was illegal. No such contention was taken before the Appellate Committee. Therefore that contention cannot be entertained for the first time in this Court.” (emphasis supplied) 13.It is to be noted that the petitioner has approached the State Appellate Authority under Section 83 of the Act. In fact, there is no precise procedure prescribed under the Act for such a use of additional vehicle based on a single permit. Though the petitioner filed the application under Section 83 of the Act, it would not come under Section 83 as the petitioner wants to operate in accordance with the permit conditions already issued, by deploying one more vehicle. Instead of using one vehicle, it would be convenient to use two vehicles on the route with maximum trips already allocated. 14.However, the learned Standing Counsel for the KSRTC W.P.(C) No. 17426 of 2013 ..13.. as well as the Karnataka State Road Transport Corporation submits that the petitioner's attempt is to operate more trips than allotted in a clandestine manner in the guise of using one more vehicle with the permit. It is further submitted that if the petitioner is allowed to operate with one more stage carriage, it will result in revenue loss to the State Transport Authorities. 15.Misuse of permit is different from consideration of extending permit for use of more than one vehicle. Certainly, if there is any misuse, it is for the authority to consider such grievance of the Transport Authorities. In such circumstances, it is also open for the authorities to take an appropriate action including cancellation of the permit granted. Merely because of the likelihood of misusing the permission to use one more vehicle, permission shall not be refused, which otherwise could have been granted under the Act and Rules. It is also to be noted that there would be absolutely no revenue loss to the States if the petitioner is allowed to use W.P.(C) No. 17426 of 2013 ..14.. more than one vehicle by using the permit already issued. Therefore, I do not find any reason to withhold permission to operate one more vehicle on the basis of the permit issued under the Act. - 16.Accordingly, the writ petition is disposed of as follows; - The impugned orders are set aside. - There shall be a direction to the 3[rd] respondent to issue counter signature for the vehicle, bearing Reg.No.KA 01/AB/1079, to operate on the route, Mysore - Mananthavady. - It is made clear that the petitioner cannot have any additional trips than already permitted under the permit and the petitioner shall operate strictly in accordance with Ext.P3. - Needful shall be done within a period of one month from the date of receipt of a copy of this judgment. Sd/- **A. MUHAMED MUSTAQUE JUDGE** bka/-