Quilon District Private Bus Operators' Association v. Regional Transport Authority Kollam and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 24TH DAY OF JANUARY 2012/4TH MAGHA 1933 WA.No. 62 of 2012 IN WPC/29763/2011 --------------------------------------AGAINST THE JUDGMENT IN WPC.29763/2011 DATED 30-11-2011 ..................... ## APPELLANTS/PETITIONERS IN W.P.(C): ------------------------------------------ 1. QUILON DISTRICT PRIVATE BUS OPERATORS' ASSOCIATION BEACH ROAD,KOLLAM REPRESENTED BY ITS GENERAL SECRETARY,LAWRENCE BABU. 2. M.D. RAVI, - “ATHIRA”, THEVALLY, KOLLAM. BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENTS/RESPONDENTS IN W.P.(C): ----------------------------------------------- 1. THE REGIONAL TRANSPORT AUTHORITY KOLLAM-691 001. 2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY,KOLLAM-691 001. 3. SHRI.BALACHANDRAN PILLAI, S/O.VASU PILLAI,RESIDING AT “MOHANALAYAM”, ASHTAMUDI.P.O,KOLLAM-691 002. 4. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPURAM - 695 001. R1 & R2 BY GOVERNMENT PLEADER, SMT. GIRIJA GOPAL R3 BY ADV. SRI.P. DEEPAK R4 BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 62 OF 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of January, 2012 ## **JUDGMENT** ## **Manjula Chellur, Ag. C.J.** Heard the learned counsel for the appellants as well as the party respondents. Heard the learned Senior Counsel, so also the Standing Counsel for the 1[st ] and 3[rd] respondents. 2. The appellants were the petitioners before the learned Single Judge and they have impugned the judgment of the learned Single Judge in W.P.(C) No.29763 of 2011 dated 30.11.2011. The appellants are the Association of Private Bus Operators in the District of Kollam. The appellants impugned the judgment of the State Transport Appellate Tribunal in MV(AA) No.52 of 2011, whereby the State Transport Appellate Tribunal allowed the appeal of the 3[rd] respondent who challenged Ext.P4 order, declining to grant a fresh regular permit for operating on the route Kareepuzha Junction – Malanada. The total length of the route for which permission was sought was 56.20 kilometers. The stand of the appellants was that the proposed route overlaps Kollam-Kumbalam complete exclusion scheme from Elampallur to W.A. No. 62 of 2012 ## -:2:- Kundra Mukkada. Therefore, the authority concerned was justified in rejecting the permission and that Transport Tribunal was erroneous to grant such permit. 3. The learned Single Judge after considering the rival contentions opines that though the contention of the writ petitioners was, another alternate route to proceed from Kundra Mukkada to Elampallur exists, but no details as such placed before the Court to categorically opine existence of such alternate route. That apart, the main consideration for the learned Single Judge to agree with the opinion of the Transport Tribunal was that, subsequent to 1962 Scheme, i.e. Kollam-Kumbalam complete exclusion scheme, another Scheme of 2009 a comprehensive Scheme covering 31 routes came into existence. Therefore, the learned Judge opined that when overlapping is possible to an extent of 5% of the total route length as per 2009 Scheme, there was no reason why the permit sought by the 3[rd] respondent should not be granted. Hence he opined that even otherwise the Kollam-Kumbalam complete exclusion scheme of 1962 and by implication, with the commencement of the Kollam- W.A. No. 62 of 2012 ## -:3:- Pampa Scheme which came into existence in 2009 has to be held as superseded, therefore there was no reason for the authority to reject the permit sought by the 3[rd] respondent and hence the order of the Transport Tribunal was upheld. Aggrieved by the same, the present appeal is filed. 4. According to the learned Senior Counsel, in the light of total exclusion Scheme of 1962, the permit sought by the 3[rd] respondent ought not to have been granted and therefore in the absence of any indication that the Scheme of 1962 is modified, there was no justification on the part of the learned Single Judge to uphold the opinion of the Transport Tribunal. 5. The learned counsel for the 3[rd] respondent brought to our notice the following judgments. First one is ## **Varkey v. State of Kerala** [ **(1968) ILR (Kerala) 96** ]. The question that arose before the Division Bench was, when 11 other Schemes were already in existence, whether the route sought to be nationalized by introducing a new scheme can be granted or not, without modifying or canceling the existing scheme under Section 68(a) of the Act. Their Lordships after referring to W.A. No. 62 of 2012 ## -:4:- several aspects ultimately held that when a new scheme is proposed and approved following the procedure in accordance with the Act applicable, the existing Scheme will yield or give place to the fresh Scheme. Therefore, the existence of some Schemes will be of no obstruction to the promulgation of fresh Scheme, as the case was in the above decision. The said matter was taken up in appeal before the Apex Court in **M/s.Standard Motor Union (P) Ltd. v. The State of Kerala and others** [AIR 1969 SC 273] paragraph 6 is relevant for the purpose of this appeal which reads as under: “6. The impugned scheme is in partial exclusion of operators from Kottayam-Ernakulam and KottayamErattupettah routes and 7 other routes. It is common case that there were earlier schemes relating to the Kottayam-Ernakulam and Kottayam-Erattupettah routes. In so far as the impugned scheme excludes private operators from those routes, it has the effect of modifying the earlier schemes. The appellant's contention is that the impugned scheme is invalid as the modifications of the earlier schemes were made without complying with the provisions of Section 68E. In our opinion, this contention is baseless. The new scheme has been proposed and approved after following the procedure laid down in Section 68C and 68D. In so far as the new scheme modifies the earlier schemes, the modifications could be made under ## W.A. No. 62 of 2012 ## -:5:- Section 68E. As the procedure laid down in Sections 68C and 68D were followed the conditions of Section 68E were satisfied. Section 68E does not require that the new scheme should expressly say that it cancels or modifies the earlier schemes. On the promulgation of the new scheme the earlier schemes stand modified by implication pro tanto.” 6. The gist of the above paragraph indicates that when a new scheme is introduced by following the procedure contemplated, there was no requirement to mention that new scheme was canceling or modifying the earlier schemes which were in existence. Therefore, whenever a new scheme is brought into force, the earlier schemes automatically stand modified by implication of _pro tanto_ . Relying on these, the learned counsel for the 3[rd] respondent contends that by virtue of 2009 Scheme, by necessary implication, one has to consider that 1962 scheme automatically becomes modified to the extent the new scheme was introduced and therefore there was no justification for the appellants to question the route permit given to the 3[rd] respondent. From the above decisions what one can understand is, there need not be any express indication at the time of promulgating a new scheme that the earlier scheme which W.A. No. 62 of 2012 ## -:6:- overlaps with the new scheme is modified or cancelled. The fact that the new scheme is allowed would only indicate, to that extent the earlier scheme was modified or cancelled. 7. During the course of submissions, it was brought to our notice that even 2009 scheme is under challenge in a batch of writ petitions. When we went through the contents of Ext.P9, the 2009 scheme, we note that at column No.8 that as early as 1967 with the introduction of scheme 204 of 1967 Kollam-Pamba route covering Kottarakkara, Adoor, Kaipattoor, Pathanamthitta, Kumbaxha, Mannarakkulanji, Madomon, Laha Rajampara, Moozhiyar, Kakki and Anchal was introduced. It is not in dispute that by virtue of 2009 comprehensive Scheme, 204 of 1967 scheme automatically gets modified. The fact remains that even in spite of the complete exclusion scheme of 1962, the 1967 Scheme came into existence and that was never challenged by any one including the appellants. 8. 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 W.A. No. 62 of 2012 ## -:7:- 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. For this also the learned counsel appearing for the 3[rd] respondent relies upon **Mithilesh Rani v. Regional Transport Authority, Dehradun** [AIR 1994 SC 2229]. It was held in this case, even if a small portion of overlapping of notified route happens if objections are raised by private operators and not by the State Transport, the beneficiary, such objections cannot be entertained. By referring to this AIR 1994 SC 2229, a Division Bench of this Court, in an unreported decision in WA No.319 of 2005 in the case of **Biju Scaria v. Regional Transport Authority** held that in the absence of the actual affected or prejudiced party not questioning the order of the Tribunal, there was no justification for the outsider to question who is not at all concerned with the route in question. In the present case also only the KSRTC could have legitimately objected the route granted in favour of 3[rd] respondent and we find that no such challenge is forthcoming till date. Even otherwise, like the 3[rd] respondent, any private W.A. No. 62 of 2012 -:8:- operators can also apply for the route in question and the same can be considered in accordance with the procedure. Therefore, we are of the opinion that the appellants(Private Bus Operators’ Association) have no _locus standi_ at all to approach the High Court challenging the orders of the Transport Tribunal much less no _locus standi_ to impugne before this Court the judgment of the learned Single Judge. Accordingly, the appeal is dismissed. **Manjula Chellur, Ag. Chief Justice.** **P.R.Ramachandra Menon, Judge.** ttb