O.P.(C) No.3370/2018

O.P.(C) No.3370/2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 27[th] DAY OF NOVEMBER 2019 /6TH AGRAHAYANA, 1941** ## **OP(C).No.3370 OF 2018** **AGAINST THE ORDER/JUDGMENT IN MVAA 248/2017 OF S.T.A.TRIBUNAL,ERNAKULAM** ## **PETITIONER/S:** - **1 SUVESH.P LAKSHMI NIVAS, G.A.COLLEGE P.O., KOZHIKODE.** - **2 BUSHAR, KOOTTIL HOUSE, P.O.ARTS COLLEGE, KOZHIKODE.** - **3 ABDUL NAZEER.V.K. KADEESAS, THANNIKKAL PARAMBA, PANNIYANKARA, KALLAI, KOZHIKODE.** **BY ADV. SRI.I.DINESH MENON** ## **RESPONDENT/S:** - **1 THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM-682 011.** - **2 THE REGIONAL TRANSPORT AUTHORITY, KOZHIKODE-673 101, REPRESENTED BY ITS SECRETARY.** - **3 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOZHIKODE-673 101.** - **4 MAMMEDKOYA, S/O.MOIDEEN KOYA, RASEENA MANZIL, PANIKKARAKANDI PARAMBA, ARAKKINAR, KOZHIKODE. R4 BY ADV.SRI.O.D.SIVADAS SPL.G.P.(MV) SMT.P.SANTHOSH KUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-10-2019, THE COURT ON 27-11-2019 DELIVERED THE FOLLOWING:** 2 ## **JUDGMENT** In this proceeding under Article 227 of the Constitution of India, the petitioners challenge Ext.P5 judgment in MVAA No.248/2017 of the State Transport Appellate Tribunal, Ernakulam and the consequent Ext.P7 order of the RTA dated 14/8/2018. 2. The 4[th] respondent herein had applied for regular permit on the route Beypore -Pulimoodu-Puthippa. That application was rejected by the RTA on 23/6/2016 on the ground that the vehicle held by the 4[th] respondent was not disclosed, that it was city permit route and that the route was not wide enough to ply stage carriages. This was challenged by the 4[th] respondent in MVAA No.118/2016 before the STAT, Ernakulam contending that it was not a city service route and that the vehicle particulars need only be produced after the grant of permit. 3. The learned Tribunal by its order dated 17/11/2016 held that under Rule 159 of the Motor Vehicles Rules, applicant need only produce the vehicle particulars after the grant of the permit. It was held that the reasoning that road was narrow was not , since the road fitness certificate was issued by the concerned authority. It was found that under Rule 71(3) notification was issued in relation to Calicut town, wherein the maximum limit of permit permissible was fixed as 400. It was held by the Tribunal that the service was sought through a coastal area which O.P.(C) No.3370/2018 3 was constructed recently. Whether it was a city route has to be considered on the basis of a separate plan and report to be submitted by the field officer. RTA was directed to consider the application afresh. 4. Accordingly, application was considered after calling for the report from the field officer. Though the report was in favour of the 4[th] respondent, the application was rejected. That decision was challenged by the 4[th] respondent in MVAA No.248/2017. The Tribunal by Ext.P5 impugned order noted that the major portion of the proposed route fell within the Corporation limits. However, the major part of the proposed route traversed through ill served coastal area inhibited by poor fisher folks. It was held that, the above aspect was not considered by the RTA. Hence, the order was set aside and the matter was remanded for fresh consideration. After the remand, RTA considered the application afresh in the light of the direction of the STAT that the route was new and fell within three virgin portions and was not city route. The field officer's report was also considered which had reported that the route was highly beneficial to ill served coastal public. Accordingly, application was allowed and the permit was granted by Ext.P7 order. 6. Ext.P7 order is assailed by the petitioners, who claim themselves to be existing stage carriage operators in the route of Beypore -city-Puthiyappa. Another existing operator had filed I.A.No.2/2019 to get himself impleaded as the additional 5[th] O.P.(C) No.3370/2018 4 respondent. Since he had raised identical contentions as that of the petitioners and had only supplemented the arguments of the petitioners herein,the petitioner was given opportunity of being heard. IA No.2/2019 is closed without impleading him as the additional 5th respondent. 7. Challenging the original petition, the 4[th] respondent raised a preliminary contention that the original petition under Article 227 of the Constitution of India was not legally sustainable in the light of the law laid down in a catena of decisions. Learned counsel relied on the decision in _**Nibaran Chandra Bag v. Mahendra Hath Ghughu(deceased) after him his heir and legal representative(1963KHC 400),**_ in which the Hon'ble Supreme Court considering the scope and nature of jurisdiction under Article 227 of the Constitution of India held that authority under Article 227 of the Constitution was merely to consider whether the Tribunal had out stepped the limits of their jurisdiction and secondly whether the findings recorded were based on no material or were otherwise perverse. 8. In _**Trimbak Gangadhar Telang and Another v. Ramachandra Ganesh Bhide and Others (1977 KHC 552)**_ , the Hon'ble Supreme Court again considered the question and reiterated that only when the order of the Tribunal was violative of the fundamental basic principles of justice and fair ply or where a patent or flagrant error in procedure or law has crept in or where the order O.P.(C) No.3370/2018 5 passed resulted in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution. 9. The above view was reiterated by the Supreme Court in **Mohd.Yunus v. Mohd.Mustaqim and Others[(1983) 4 Supreme Court Cases 566] and in Shalini shyam Shetty and Another v. Rajendra Shankar Patil [(2010) 8 Supreme Court Cases 329].** The Apex Court held that the power under Article 227 of the Constitution can be invoked in both administrative and judicial superintendence. It was held that a proceeding under Article 227 can never be governed under the Original Side Rules of the High Court. However, if there is infringement of fundamental rights, relief under Article 226 of the Constitution can be claimed as of right. 10. Learned counsel heavily relied on the decision of this Court in _**Valsaraj v. Rahan and Others (2019 KHC 613).**_ That was a case where the learned Single Judge of this court specifically considered the question whether the judgment of the STAT can be challenged under Article 226 or under Article 227 of the Constitution of India. It was held that the judicial officer appointed under section 89(2) of the MV Act was exercising powers in the capacity as a persona designata and hence the judgment rendered by him can be challenged before the High Court under Article 226 by filing the writ petition. It was held that it cannot be challenged under Article 227 by invoking supervisory jurisdiction. O.P.(C) No.3370/2018 6 11. To sustain the challenge under Article 227 of the Constitution of India, the learned counsel for the petitioners contended that the petitioners were challenging the order on the ground that the Tribunal committed fundamental errors in ignoring the specific statutory provision and also considering irrelevant considerations. It was contended by the learned counsel that the specific contention of the 4[th] respondent was that the route was not a town service, whereas all the records available before the Tribunal indicated that the it was a town service. The court below went into the question whether the route passed through mofussil area . The court further went into the question whether the route was catering to the need of the fisher folks in the mofussil area ignoring the statutory definition, which was liable to be corrected. It was totally contrary to the statutory definition of the town service under the Act and Rules. It was also contended that the remand order was challenged and hence the original petition under Article 227 of the Constitution was sustainable and was to be considered on the premise whether the court below had committed jurisdictional error. 12. The learned counsel for the petitioners specifically relied on the decision of the Division Bench of this Court in _**Unnumbered W.A.No. Of 2019 arising from O.P.(C) No.2707/2018**_ . An identical question came up before the Division Bench of this Court. Division Bench held that to decide the question, it has to be considered whether the directions issued by the learned Single Judge in the O.P.(C) No.3370/2018 7 impugned judgment were such that they could have been issued only in exercise of the jurisdiction under Article 226 of the Constitution. It was held that, learned Single Judge in that case had found that there was violation of principles of natural justice and hence the authority was directed to consider it afresh. It was held that in the case of jurisdictional error, the original petition under Article 227 of the Constitution of India can be invoked. This seems to be consistent view of the Hon'ble Supreme Court in the decision relied on by the petitioners himself. Applying the above principle, in the facts of this case, I am inclined to hold that the original petition is legally sustainable. 14. It was vehemently contented by the learned counsel for the 4[th] respondent that the original petition was not sustainable for yet another reason also . It was contended that existing operators have no right to make objection regarding the grant of permit to another. A Division Bench of this Court in _**Girija Devi. v. K.T.Mathew(1991 KHC**_ _**111)**_ had held that existing operator of a portion of the route is entitled to be heard in respect of varying of route. However, a different view was taken by the subsequent decision of this court in _**Secretary**_ ## _**Changanacherry TRBT Co-operative Society v. Mathew Job [1992**_ _**(1) KLT 297)**_ , wherein it was held that in the light of the new Act 1988, the right of the existing operators to file objections and the provisions to impose limit on the number of permits have been taken away. There is O.P.(C) No.3370/2018 8 substantial ground in the contention set up by the 4[th] respondent in this case. 14. The specific contention of the learned counsel for the petitioners was that the route was a city service. To substantiate the above contention, learned counsel for the petitioners relied on the claim made by the petitioners herein in the application and also earlier contention taken by the petitioners that it was not a city limit route. The records revealed that it was the city permit route. It was contended that in the light of the Ext.P12 notification issued under section 71(3) of the Motor Vehicles Act, number of permits that can be issued within the limits of the Calicut Corporation was 400 only. Learned counsel further relied on Ext.P9 report of the Motor Vehicle Inspector which in the last remark column indicated that the route was a city permit route and as per the above notification, the city permit was limited. 15. It was contended that the crucial question that was to be decided was whether the route was a city permit route or not. It has to be governed by the parameters laid down in Rule 2 (ca) of the Kerala Motor Vehicles Rules 1989. _**Rule 2 (ca)**_ defines 'City or Town Service” to mean a service plying within the peremeter of a City or Municipal Town, notified as City or Town Services, by the Government, and both the terminals of which shall not extent beyond five kilometres from the city or town limit. This being the definition, the question whether there were three virgin points, whether it was recently laid O.P.(C) No.3370/2018 9 down route and whether it passed through the coastal area thickly populated fishermen folk,etc.were not the crucial conditions. 16. It seems that the contention of the learned counsel for the petitioners to the extent that it related to a city service is correct. However, a perusal of Ext.P7 does not indicate that the permit was granted treating it not as a city permit route. It is true that Ext.P7 refers to the observation of the STAT to consider the application on the ground that it was the route which was a new one, with 3 virgin portions and not as a city route. Though in the order of remand, in MVAA No.248/2017, it was directed to consider not as a city route, the second paragraph of the impugned order completely answers the contention of the learned counsel for the petitioners . It specifically states that the authority has considered that the number of stage carriage permit was limited to 400 by the government. It was stated that due to surrender of city permits by various operators, there were vacancies in this 400 numbers and there was no question of existing number of permits in the city as restricted by the Government. This clearly shows that the RTA understood the application as one in relation to the city permit, treated it so and granted the permit accordingly. The remark that the STAT had directed to consider the application afresh in the light of the three virgin points and not as a city route and are only mere observations made in the order referring to the STAT order. O.P.(C) No.3370/2018 10 17. Hence, the crux of the reasoning by the RTA was that there were permits available within the limit of 400. This beyond any doubt shows that the RTA has considered the application as one in relation to a city service. RTA only additionally referred to the other aspects. Hence, I find absolutely no merit in the contention set up by the learned counsel for the petitioners on this ground. 18. Even though an attempt was made by the learned counsel for the petitioners to contend that though RTA order indicated that there were vacancies in the 400 numbers limit, there was no supporting materials, I am not inclined to accept it, in the absence of any contra material. I find no reason to disbelieve the version of the RTA that sufficient permits were available. 19. There is no scope for challenge to the impugned order on the ground that the road was not wide enough. It was also pertinent to note that the permission was subject to the production of fitness certificate and settlement of timings. Hence, I find no merit in the original petition and accordingly the same is dismissed. **Sd/-** **SUNIL THOMAS** dpk **JUDGE** O.P.(C) No.3370/2018 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PERMIT OF THE FIRST PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE PERMIT OF THE SECOND PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE PERMIT OF THE THIRD PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE APPEAL IN MVAA NO.248/2017.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN MVAA NO.248/2017 DATED 21.07.2018.** - **EXHIBIT P6 TRUE COPY OF THE DECISION IN A998(2)KLT 383.** - **EXHIBIT P7 TRUE COPY OF THE RTA DECISION DATED 14.08.2018.** - **EXHIBIT P8 TRUE COPY OF THE TIMING CONFERENCE NOTICE DATED 04.12.2018 SCHEDULING TIMING CONFERENCE ON 18.12.2018.** **EXHIBIT.P9: COPY OF THE MVI REPORT DATED 14/6/2016** **EXHIBIT.P10: COPY OF THE PROCEEDINGS DATED 23/6/2016.** **EXHIBIT.P11: COPY OF THE JUDGMENT IN MVAA NO.118/2016 DATED 17/11/16** **EXHIBIT.P12: COPY OF THE NOTIFICATION DATED 29/9/2000** **EXHIBIT.P13: COPY OF THE PERMIT DATED 6/4/2019.** RESPONDENTS EXHIBITS: **EXT.R4(A): COPY OF THE PROCEEDINGS OF THE RTA, KOZHIKODE DATED 19/6/2017.** **EXT.R4(B): COPY OF THE FIELD OFFICER'S REPORT PRODUCED BEFORE THE STAT IN MVAA NO. 248/2017** **EXT.R4(C): COPY OF THE REPORT OF THE EXECUTIVE ENGINEER, PWD ROAD DIVISION, KOZHIKODE** .