N. Kamalolbhavan v. Regional Transport Authority, Thiruvananthapuram and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 3RD DAY OF FEBRUARY 2014/14TH MAGHA, 1935** ## **WP(C).No. 32186 of 2013 (W)** **----------------------------------------** ## **PETITIONER(S):** **-----------------------** **N.KAMALOLBHAVAN, A.M.C. 13/423, MANI MANDIRAM, ATTINGAL.** **BY ADV. SRI.K.V.GOPINATHAN NAIR** ## **RESPONDENT(S):** - **-------------------------** **1. THE REGIONAL TRANSPORT AUTHORITY, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY 695039.** **2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, THIRUVANANTHAPURAM 695039.** **3. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM 695039.** **4. M. ANWAR HUSSAIN, MIDLAND, VENJARAMOODU P.O, THIRUVANANTHAPURAM 695607.** **5. ARUNA UNNIKRISHNAN, RITA NIVAS, KANAKAKUNNU LANE, THIRUVANANTHAPURAM 695023** **R1 & 2 BY GOVERNMENT PLEADER SMT.R.REMA R3 BY ADV. SRI.P.C.CHACKO, SC, KSRTC. R4 BY ADVS. SRI.P.RAVINDRAN (SR.) SRI.SREEDHAR RAVINDRAN R5 BY ADVS. SRI.MILLU DANDAPANI SMT.ANNA THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 32186 of 2013 (W) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DATED 19-12-1994 GRANTING REGULAR PERMIT TO THE PETITIONER** - **EXHIBIT P2 TRUE COPY OF THE REGULAR PERMIT ISSUED TO THE PETITIONER 30-06-1995** - **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DATED 12-05-1997** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP NO 25906/1997 DATED 10-09-1997** - **EXHIBIT P5 TRUE COPY OF THEJUDGMENT OF THE STATE TRANSPORT APPELLATE TRIBUNAL IN MVAA NO 654/1997 DATED 20-03-2000** - **EXHIBIT P6 TRUE COPY OF THE ORDER OF THIS HONOURABLE COURT IN PWC NO 7607/2012 DATED 29-03-2012** - **EXHIBIT P7 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 04-10-2012** - **EXHIBIT P8 TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE IST REPSONDENT DATED 08-11-2012** - **EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DATED 08-11-2012** - **EXHIBIT P10 TRUE COPY OF THE APPEAL MAMORANDUM AS MVAA NO 72/2013 DATED 15-02-2013 WITHOUT EXHIBITS** - **EXHIBIT P11 TRUE COPY OF THE JUDGMENT OF THE STATE TRANSPORT APPELLATE TRIBUNAL I N MVAA NO 73/2013 DATED 07-11-2013** - **EXHIBIT P12 TRUE COPY OF THE PROCEEDING OF THE 1ST RESPONDENT GRANTING RENEWAL OF REGULAR PERMIT TO THE 4TH RESPONDENT BY CIRCULATION ON 25/4/2013** **RESPONDENT(S)' EXHIBITS ---------------------------------------** **EXHIBIT R3(A)TRUE COPY OF THE NOTIFICATION DATED 14/7/2-00-9 VIDE NO.GO(P) 42/2009 TRANS DATED 14/7/2009** **EXHIBIT R3(B) TRUE COPY OF THE JUDGMENT DATED 25/10/2013 IN WPC.NO.12862 OF 2013** **PJ** **....2/-** **..2..** ## **WP(C).No. 32186 of 2013 (W)** **----------------------------------------** **EXHIBIT R3(C) TRUE COPY OF THE RELEVANT PORTION OF THE DECISION OF THE 1ST RESPONDENT DATED 29/12/1994** **EXHIBIT R4(A) TRUE COPY OF THE INTERIM ORDER IN OP.NO.11220/2000 DATED 7/4/2000** **EXHIBIT R4(B) TRUE COPY OF THE PROCEEDINGS DATED 19/3/2003 EXHIBIT R4(C) TRUE COPY OF THE JUDGMENT IN OP.NO.11220/2000 DATED 17/1/06 EXHIBIT R4(D) TRUE COPY OF THE PERMIT DATED 12/2/09 EXHIBIT R4(E) TRUE COPY OF THE RENEWAL OF PERMIT DATED 13/5/2013.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 32186 of 2013 - - - - - - - - - - - - - - - - Dated 3[rd] February, 2014 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The dispute, which relates to more than two decades back, is agitated by the petitioner in this writ petition contending that though there were interventions by the Tribunal twice, the consideration of issuance of regular permits has not been done in the manner indicated by the Tribunal in Ext.P5. The dispute relates back to 1994 when the State Government decided to grant 100 permits in the city of Thiruvananthapuram to private stage carriage operators. Since there was a proliferation of applications for permits, in routes devised by the applicants themselves, it was decided that the RTA would determine 50 routes, in each of which two regular permits would be granted. The present dispute is confined to the permits in the route Thamalam - Vazhayila which admittedly is one of the 50 routes. 2. By Ext.P1, RTA decided to grant regular permit in the aforementioned route to the petitioner and the 5[th] respondent. This was challenged by the 4[th] respondent before the State **WP(C).32186/13** 2 Transport Appellate Tribunal (STAT) and the Tribunal set aside Ext.P1 directing reconsideration of the issue. The petitioner and respondents 4 and 5 hence were relegated to the RTA. The RTA considered the issue afresh and granted permits to respondents 5 and 4, while declining the same to the petitioner. The petitioner approached the Tribunal against the said order and while the appeal before the Tribunal was pending, on the petitioner being declined permission to operate even on temporary permit, the petitioner was before this Court with an Original Petition. The said OP concluded in Ext.P4 by which the petitioner was also directed to be granted a temporary permit in the very same route since the issue regarding who is to be preferred among the petitioner and respondents 4 and 5 were live before the Tribunal. 3. On considering the appeal filed by the petitioner, the Tribunal found that the order passed by the Transport Authority was not in compliance with Rule 145(5) of the Kerala Motor Vehicles Rules and was also not accompanied by a tabular statement of the marks awarded to each applicant. The absence **WP(C).32186/13** 3 of a tabular statement was found to be vital since the order, then, did not disclose the reason for eliminating one of the applicants. The order of the RTA, challenged before the Tribunal, granting regular permits in the route to respondents 4 and 5 (respondents 3 and 4 in the said appeal), hence was set aside and the RTA was again directed to consider the issue. Following Ext.P4 judgment of this Court, the Tribunal also directed that the statusquo with respect to the operation of stage carriages may be maintained. 4. Hence, all the three respondents were continuing operation in the route with respondents 4 and 5 on regular permits which were set aside by Ext.P5 and the petitioner by a temporary permit which was granted in accordance with Ext.P4. The circumstance that respondents 4 and 5 were continuing on a regular permit and the petitioner on a temporary permit is not at all significant, according to the learned counsel for the petitioner, since that was just a temporary adjustment to maintain statusquo, that was resorted to by the Regional Transport Authority, till a final decision is taken with respect to **WP(C).32186/13** 4 the regular permits granted. 5. Subsequently, when temporary permit was declined to the petitioner and the regular permits granted to respondents 4 and 5 were renewed, petitioner was again before this Court. This Court by Ext.P6 interim order, directed continuance of the temporary permit issued to the petitioner till a final decision is taken. In fact, the specific direction in Ext.P6 is that the temporary permit would be granted until such time as a final decision is taken in the appeal filed against rejection of temporary grant. The petitioner then had challenged the rejection of temporary permit before the Tribunal. 6. Purportedly for taking a final decision as per Ext.P6, Ext.P7 notice was issued. However, it is to be noticed that Ext.P7 notice was not with respect to the decision directed to be taken by the Tribunal in Ext.P5. In item No.13, Ext.P7, provided the agenda for consideration of issuance of temporary permit in the route Thamalam - Vazhayila, though the agenda also stated that this is to dispose of the direction of the Tribunal in Ext.P5. **WP(C).32186/13** 5 Despite Ext.P5 being referred to, the agenda merely included the issuance of temporary permit in the route. The petitioner hence was before the Regional Transport Authority with Ext.P8 wherein the entire facts were stated and the issuance of regular permits in the route Thamalam - Vazhayila relating back to 1994 was pointedly referred to. By Ext.P9, the RTA considered the issue but rejected the petitioner's application for temporary permit since there was in force two regular permits in the route Thamalam - Vazhayila. Ext.P9 obviously was referring to the regular permits issued to respondents 4 and 5 which stood set aside by Ext.P5. 7. The learned counsel for the 4[th] respondent submits that Ext.P5 was challenged before this Court in O.P.11220/2000 and there was an interim stay of Ext.P5 order. However, the said OP was dismissed as infructuous since the 4[th] respondent was granted renewal of permit subsequently. The renewal of permit, according to the learned counsel, has to be treated as a fresh permit as is provided in the statute. Without a challenge to such renewal, deemed to be a fresh permit, the instant writ petition **WP(C).32186/13** 6 would not be maintainable is the contention. It is also the contention that when OP.11220/2000 was dismissed as infructuous, the petitioner who was a party therein had acquiesced to the renewal. Hence he cannot maintain this writ petition which in effect would undo the renewal. Such an argument is far fetched since it was the 4[th] respondent, who was the petitioner in O.P.11220/2000, who was the master of that litigation, who had sought for a dismissal of his writ petition. The 4[th] respondent in fact gave up his challenge of Ext.P5 remand, on his being granted renewal and has to suffer the consequences flowing from the remand. 8. The learned counsel for the 5[th] respondent however, would contend that the dispute is between the petitioner and the 4[th] respondent and there being two permits available in the route, her eligibility to get one of them cannot at all be assailed. The 5[th] respondent also asserts that her regular permit was also renewed and the arguments addressed on behalf of the 4[th] respondent would equally apply to her; regarding the maintainability. The learned Standing Counsel for the KSRTC **WP(C).32186/13** 7 would contend that in the light of the situation explained above, there are three persons operating in the route and that cannot be continued since admittedly there are only two permits which can be granted to private stage carriage operators in the aforesaid route. 9. The 5[th] respondent asserts that, she need not join the issue with the petitioner and the 4[th] respondent since there is no dispute raised against her permit. Going by Ext.P5 judgment of the Tribunal, it is clear that the appeal was filed challenging the regular permits issued to respondents 3 and 4 on the route Thamalam - Vazhayila (respondents 4 and 5 herein). Though the petitioner was aggrieved by the rejection of his application, he had in fact challenged the order issuing regular permits to both the rival operators and the Tribunal also set aside the same on the ground that the order issued was not in compliance with Rule 145(5) of the Rules and that a tabular statement as mandated by the statute did not accompany the order. In such circumstances, the regular permit granted to both respondents 4 and 5 are found to have been set aside by Ext.P5. **WP(C).32186/13** 8 10. With respect to the other common contention, that the renewal of permit has to be deemed to be a regular permit, the decision of the Honourable Supreme Court in **Karnataka State Road Transport Corporation, Bangalore v. B.A. Jayaram and others (AIR 1984 SC, 790)** is apposite. Though the statute speaks of deeming the renewal also to be a grant of fresh permit, the same would be applicable only when it is an application to vary the conditions of a permit; that too only with respect to the procedure followed and it does not confer the renewed permit the same character of a regular permit. The decision of the Honourable Supreme Court in **V.C.K.Bus Service v. RTA, Coimbatore (AIR 1957 SC 489)** can also be referred to in this context. Going by the dictum laid down by the Honourable Supreme Court, when the original permit itself has been cancelled, merely for the reason that there were renewed permits issued, it cannot be gainsaid that such renewed permit would continue to operate despite the cancellation of the regular permits. **WP(C).32186/13** 9 11. The Tribunal before which Ext.P9 was challenged, also proceeded on the basis that the issue which had to be considered by the RTA was only the issuance of temporary permit. It was in that circumstances that in Ext.P11 order, the Tribunal found that the decision of the RTA, not to grant any more permits when there were two regular permits existing in the route, is not liable to be interfered with. 12. On the conclusion that the RTA till date has not complied with the judgment passed by the Tribunal in Ext.P5, it has to be held that Ext.P9 order of the RTA and P11 order confirming the action of the RTA are not to be upheld. Exts.P9 and P11 hence would stand set aside. The matter is relegated back to the RTA. RTA shall issue notice and after hearing the petitioner as also respondents 4 and 5 and the KSRTC, shall expedite the matter and grant regular permits within a period of four months from today, to whoever out of the three is found entitled. In the meanwhile though the petitioner also had been operating on the strength of orders passed by this Court, since the KSRTC has valid objections with respect to the operation of **WP(C).32186/13** 10 more than two permits in the route, respondents 4 and 5 shall be allowed to continue operation, however, subject to the final orders to be passed by the RTA as per the directions issued. Writ petition allowed. No costs. ## **Sd/-** **K.VINOD CHANDRAN, Judge** Mrcs //True Copy//