RP.No. 486 of 2010 in WA No. 1270 of 2009 & RP No. 544 of 2010 in WA No. 1307 of 2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **& THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932** **RP.No. 486 of 2010()** **-----------------------------AGAINST THE JUDGEMENT/ORDER IN WA.1270/2009 DATED 01/12/2010** **....................** ## **REVIEW PETITIONER/1ST RESPONDENT** **-----------------------------------------------------------** **N.R. BABUDAS, S/O.RAMAN NAIR AGED 61 YEARS, RESIDING AT NAMBIATH HOUSE CHOTTANIKKARA PO.** **BY ADV. SRI.P.DEEPAK** ## **RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 4:** **------------------------------------------------------------------------------------** **1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR TRANSPORT BHAVAN, THIRUVANANTHAPURAM.** **2. THE STATE TRANSPORT APPELLATE TRIBUNAL ERNAKULAM.** **3. REGIONAL TRANSPORT AUTHORITY ERNAKULAM, REPRESENTED BY ITS SECRETARY.** **4. THE SECRETARY,** - **REGIONAL TRANSPORT AUTHORITY, ERNAKULAM.** **R1 BY ADVS. MR.V.V. NANDAGOPAL NAMBIAR SC, KSRTC & MR.BENJAMIN PAUL, SC, KSRTC R2 TO R4 BY GOVT. PLEADER** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 13/09/2010, ALONG WITH RP NO. 544 OF 2010, THE COURT ON 01/10/2010 PASSED THE FOLLOWING:** **rs.** ## **THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P. No. 486 of 2010 in W.A. 1270 of 2009 & R.P. No.544 of 2010 in W.A. 1307 of 2009. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of October , 2010. ## **ORDER** ## **Bhavadasan, J,** The petitioners in W.P.(C) No.28386 of 2008 and W.P.(C) No. 29984 of 2008 seek review of the judgment in W.A. No.1270 of 2009 and other connected cases, which were disposed of on 1.12.2009. 2. The matter related to grant of permits under Section 104 of the Motor Vehicles Act. A learned Single Judge of this court had while disposing of a batch of writ petitions raising similar contentions observed as follows: _“For these reasons, I am of the view that the issue requires reconsideration by the Regional Transport Authority. Accordingly, the writ petition [W.P.(C) No.28386/08] is allowed in part. Exts.P5 and P9 are set aside. The application for re-issue of Temporary Permits submitted by the petitioner herein shall be considered by the Regional Transport Authority, Ernakulam, in accordance with law and in the light of the observations_ 2 R.P. 486 & 544/2010. _contained in this judgment, after notice to the petitioners as well as the 4[th] respondent Corporation. Fresh orders shall be passed within one month from the date of receipt of a copy of this judgment.”_ Aggrieved by the judgment of the learned Single Judge, the Kerala State Road Transport Corporation (hereinafter referred to as KSRTC) came up in appeal before this court in various Writ Appeals. Their main grievance was that the routes, through which the petitioners sought temporary permits were notified routes, they touched two intermediate points and also that they fell within the Scheme. There was a total prohibition, which prevented the authorities concerned from issuing any sort of permit to anyone other than KSRTC. This court, accepted the contention put forward by the KSRTC and allowed the writ appeals setting aside the judgment of the learned Single Judge and dismissed the writ petitions. 3. In these review petitions, it is pointed out that while the writ appeals were being considered, it was R.P. 486 & 544/2010. 3 omitted to refer to the proviso to Section 104 of the Motor Vehicles Act, which enables the authorities concerned to grant temporary permits over notified routes till the State Transport Corporation applies for permit over those routes. It is pointed out that it is not in dispute that the routes through which the writ petitioners seek permit are also notified routes and also that there is no case for the KSRTC that they had applied for permit for these routes. According to the review petitioners, even if the route is a notified one, and also the routes over which they seek permits pass through two or more intermediate points, till the State Transport Corporation applies, it is possible for the authorities to grant temporary permits. The review petitioners say that it is not disputed that currently the State Transport Corporation has not applied for permits over the routes, through which temporary permits are sought. It is conceded that once the STC applies, the temporary permits cease to be in force. The above aspect, according to them, was not taken note of by the Division Bench of this R.P. 486 & 544/2010. 4 court while pronouncing the judgment in the Writ Appeals, and that is an error apparent on the face of the record. In support of their contention that it may be possible to grant temporary permits, they relied on the judgment in W.A. 188 of 1986 of this court and also the decision reported in **Punjab Roadways v. Punja Sahib Bus & Transport Co.** ((2010) 5 SCC 235). 4. Learned counsel appearing for the KSRTC contended that no error has been committed by this court in allowing the writ appeals and dismissing the writ petitions. The routes over which the petitioners seek temporary permits admittedly touch two intermediate points and it is a notified route. According to the learned counsel, along the notified routes only the KSRTC can seek permit for plying the vehicles. Therefore, it is contended that the review petitions are without merits and they are liable to be dismissed. 5. It is true that the proviso to Section 104 of the Motor Vehicles Act is not referred to in the decision of the 5 Division Bench in the writ appeals. The decision proceeds on the basis that being a notified route, only the KSRTC is entitled to seek permit and there is a total prohibition as per the scheme. ## 6. Section 104 of the Motor Vehicles Act reads as follows: ## “ _**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 permit to any person in respect of such notified area or notified route_ R.P. 486 & 544/2010. 6 _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.”_ Going by the proviso, it would appear that even if the route is a notified one, it may be possible for the authorities concerned, if they so feel, to consider whether temporary permits could be granted as long as no application for permit along those notified routes had been made by the State Transport Corporation. The proviso also states that in cases where such temporary permits are granted, they will cease to have any effect as soon as permit is granted to the State Transport Corporation. 7. In the decision in W.A. 188 of 1986 disposed of by judgment dated 16.12.1986, it was mentioned as follows: _“For the reasons stated above, this appeal is allowed, the judgment of the learned Single Judge is set aside, the order of the State Transport Appellate Tribunal and the Regional Transport Authority are quashed and the_ R.P. 486 & 544/2010. 7 _application of the 2[nd] respondent for grant of a pucca stage carriage permit is dismissed reserving liberty in the 2[nd] respondent to invoke the proviso to Section 68 FF of the Act and seek grant of temporary permit. We also direct that the 2[nd] respondent will be permitted to operate the service for a period of two months from this date on the relevant route in question.”_ 8. In the decision reported in **Punjab** ## **Roadways, case** it is observed as follows: _“The above mentioned 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 a 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 route subject to the condition that such_ R.P. 486 & 544/2010. 8 _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 utilizing 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._ _In Anwar Ahmed this Court had occasion to examine the scope of the proviso to Section 104 and held as follows:_ _“7. It would, therefore, be seen that where the 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. Thus, the appellant Corporation has the exclusive right or monopoly to ply their stage carriages and_ R.P. 486 & 544/2010. 9 _obtain the required permit as per the scheme. The proviso gives only a limited breath of life, namely, until the Corporation puts the vehicles on the notified routes as per the scheme, temporary permits may be granted to private operators. Thereby, it would be clear the temporary inconvenience to travelling public is sought to be averted till the permits are taken and vehicles are put on the route by the appellant. Therefore, the temporary permits will have only limited breath of life. ”_ 9. The apex court while rendering the above decision has taken note of the hardship and inconvenience that may be caused to the people due to the failure on the part of the State Transport Corporation concerned to ply vehicles through all the notified routes, though permit is taken. There may be instances also where they may not operate services in the route. Whatever that be, the fact remains that the apex court has observed that even in the notified routes, as long as the State Transport Corporation R.P. 486 & 544/2010. 10 do not apply for permits, it is open to the authorities concerned to consider if temporary permits can be issued. 10. There is no reason as to why the principle laid down in the above decisions based on the proviso to Section 104 of the Motor Vehicles Act should not be accepted in these cases also. Accordingly, these review petitions are allowed, the common judgment in the writ appeals are set aside and the judgment of the learned Single Judge is restored. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.