Kunjumon v. Secretary, Regional Transport Authority, Ernakulam and KSRTC

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 25TH DAY OF JUNE 2012/4TH ASHADHA 1934 WP(C).No. 9587 of 2012 (W) -------------------------- PETITIONER: ------------- KUNJUMON, AGED 43 YEARS S/O.VARKEY, KOZHIPPATTU HOUSE, THURUTHISSERY MAIKKAD P.O, ANKAMALY. BY ADV. SRI.P.DEEPAK RESPONDENTS: -------------- 1. THE SECRETARY REGIONAL TRANSPORT AUTHORITY, ERNAKULAM-682 030. 2. THE KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695 001. BY ADV. GOVERNMENT PLEADER BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC BY GOVERNMENT PLEADER SHRI.G.GOPAKUMAR BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1- A TRUE COPY OF THE REGULAR PERMIT VALID TILL 28.12.2011. EXHIBIT P2- A TRUE COPY OF THE APPLICATION FOR TEMPORARY PERMIT WITH COVERING LETTER DATED 12.3.2012. EXHIBIT P3- A TRUE COPY OF THE ORDER OF THE IST RESPONDENT DATED 16.3.2012. EXHIBIT P4- A TRUE COPY OF QUERY UNDER THE RTI ACT, 2005 DATED 20.3.2012. EXHIBIT P4(A)- A TRUE COPY OF THE COMMUNICATION DATED 28.3.2012. RESPONDENTS' EXHIBITS NIL JJ /TRUE COPY/ P.S.TO JUDGE **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 9587 OF 2012 ----------------------------------------------------------Dated this the 25[th] June, 2012.** ## **JUDGMENT** This writ petition is filed challenging Ext.P3 proceedings of the first respondent rejecting an application for temporary permit submitted by the petitioner. The petitioner is a stage carriage operator. He had applied for the grant of a temporary permit of four months duration on the route Vattaprambu-AngamalyKanakkankadavu. The temporary permit was sought for in the vacancy of stage carriage bearing registration No: KL- 7/AN 1431, with respect to which vehicle, the petitioner himself had been granted a regular permit, Ext.P1. However, according to him, the permit was surrendered by him and cancelled. 2. It is contended by the counsel for the petitioner that, the Kerala State Road Transport Corporation (KSRTC for short) has not been granted a permit to conduct services on the route. Therefore, the petitioner is entitled to seek for the issue of a permit under Section 104 of the Motor Vehicles Act, 1988. The ground on which the application for temporary permit has been rejected in Ext.P3 is WPC 9587/2012 2 that, there is an objectionable overlapping on the route, which exceeds 5% of the route length. The counsel for the petitioner meets the above objection by pointing out that the second respondent is not conducting services on the route and therefore, the petitioner's application for temporary permit can be considered. The counsel for the petitioner also relies on a Division Bench decision of this Court as well as a decision of the Honourable Supreme Court to support his contention. 3. According to the statement filed by the Standing Counsel, the route, Elavoor - Angamaly - Kanakkankadavu over which the petitioner has sought for the issue of a temporary permit under Section 104 of the Motor Vehicles Act, objectionably overlaps the notified route. The Standing Counsel has submitted that the KSRTC is operating sufficient number of trips, in addition to the regular trips operated by private stage carriages over various routes. The said services are sufficient to cater the needs of the travelling public over the route proposed by the petitioner also. According to the statement, the route proposed by the petitioner overlaps the notified route beyond the permissible limit. Therefore, the impugned order rejecting the request of the petitioner for the issue of a temporary permit is fully justified. The counsel for KSRTC therefore submits that the writ petition may be dismissed. WPC 9587/2012 3 4. The scope of Section 104 of the Motor Vehicles Act, 1988 was considered by a Division Bench of this Court in **K.S.R.T.C. v. R.T.O. Ernakulam {1997(2) KLT 330}** . That was also a case in which there was objectionable overlapping on the notified route as in the present case. After considering Sections 103 and 104 of the Motor Vehicles Act, 1988, at paragraph 8 of the said judgment this Court has held as follows:- “ However, we have found that the Corporation has not plied sufficient number of stage carriages in all the nationalised routes during the last 25 to 30 years. Proviso to S.104 of the M.V.Act, 1988 lays down that where no application for a permit has been made by the State Transport undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permit to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State transport undertaking in respect of that area or route. Thus, the State Transport Authority or the Regional Transport Authority are not totally forbidden to grant temporary permits to private operators to ply their stage carriages in the notified routes if no application for a permit has been made by the State Transport WPC 9587/2012 4 undertaking namely the petitioner herein in respect of any notified route in pursuance of the scheme.” 5. The above view gets further support from the dictum of the Honourable Supreme Court in the decision reported in **Punjab Roadways v. Punja Sahib Bus & Transport Co. {(2010) 5 SCC 235}** . The scope of Section 104 has been considered by the Apex Court in paragraphs 33 and 34 of the said decision, which reads as follows:- “33. Section 104 of the Act specifically restricts the grant of permits in respect of notified area or notified route. The said provision is extracted hereunder:- “104. Restriction on grant of permits in respect of a notified area or notified route---Where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme: Provided that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall WPC 9587/2012 5 cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route.” 34. The abovementioned provision states where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the STA or the RTA as the case may be, shall not grant any permit except in accordance with the provisions of the scheme. An exception has been carved out in the proviso to Section 104 stating, where no application for permit has been made by the STU in respect of any notified area or notified route in pursuance of an approved scheme, the STA or the RTA, as the case may be, may grant temporary permits to any person in respect of any such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of permit to the STU in respect of that area or route. In our view same is the situation in respect of a case where an STU in spite of grant of permit does not operate the service or surrenders the permit granted or is not utilising the permit. In such a situation it should be deemed that no application for permit has been made by the STU and it is open to the RTA to grant temporary permit if there is a temporary need. By granting regular permits to the private operators the RTA will be upsetting the ratio fixed under the scheme which is legally impermissible.” WPC 9587/2012 6 6. The position that emerges from the above is that, if the KSRTC has not been granted a permit in respect of the notified route, the authorities are perfectly within their rights to grant temporary permits to other private operators, subject of course to the superior right of the KSRTC to seek a permit in respect of the notified route. On the grant of such a permit, the private operators would have to stop operation. However, in the absence of any service being conducted by the KSRTC, it is open to the authorities to issue temporary permits to private operators on the notified route. It is the issue of a regular permit that is totally prohibited. 7. For the above reasons, Ext.P3 is unsustainable. The same is accordingly set aside. The first respondent or the RTA, as the case may be, shall consider the petitioner's application for temporary permit afresh, in the light of the observations made above. The writ petition is disposed of accordingly. Sd/K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge WPC 9587/2012 7 K. SURENDRA MOHAN Judge jj WPC 9587/2012 8