Shibu v. Regional Transport Authority, Ernakulam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938** ## **WP(C).No. 26254 of 2016 (F)** **----------------------------** **PETITIONER(S): -------------** **SHIBU, S/O. VARGHESE, KAIPARAMBATTU HOUSE, PEECHANIKKAD KARA, ANGAMALY.** **BY ADV. SRI.K.V.GOPINATHAN NAIR** **RESPONDENT(S):** **--------------** **1. THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM REPRESENTED BY ITS SECRETARY 682 030.** **2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, ERNAKULAM 682 030.** **3. THE DISTRICT TRANSPORT OFFICER, K.S.R.T.C, ERNAKULAM 682 030.** **R1 & 2 BY SENIOR GOVERNMENT PLEADER SMT.C.S.SHEEJA R BY SRI.P.C.CHACKO, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/8/2016 THE COURT ON 07-09-2016, DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 26254 of 2016 (F)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE ENQUIRY REPORT DATED 23-06-2015 EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P(C) 20262 OF 2015 EXHIBIT P3 TRUE COPY OF THE TEMPORARY PERMIT WHICH WAS BEING OPERATED BY THE PETITIONER VALID UPTO 12-1-2016 EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS REFUSING TO GRANT TEMPORARY PERMIT UNDER SECTION 87(1) (C) EXHIBIT P5 TRUE COPY OF THE APPLICATION FOR TEMPORARY PERMIT SUBMITTED BY THE PETITIONER EXHIBIT P6 TRUE COPY OF THE COVERING LETTER SUBMITTED ALONG WITH THE APPLICATION EXHIBIT P7 TRUE COPY OF THE ORDER IN W.P(C) NO 7502 OF 2016 DATED 26-02-2016 EXHIBIT P8 TRUE COPY OF THE DECISION OF THE 1ST RESPONDENT DATED 5-4-2016 RESPONDENT(S)' EXHIBITS ----------------------ANNEXURE R3(A) TRUE COPY OF THE MVAA NO.48/16 FILED BY THE PETITIONER BEFORE THE STATE TRANSPORT APPELLATE TRIBUNAL ANNEXURE R3(B) TRUE COPY OF THE OBJECTION FILED BY KSRTC IN MVAA NO.48/2016 BEFORE THE STATE TRANSPORT APPELLATE TRIBUNAL** **/ TRUE COPY / P.S. TO JUDGE** **PJ** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.26254 of 2016 ----------------------------------------------Dated this the 7[th] day of September, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner, a stage carriage operator in respect of vehicle bearing registration No.KEE-8787 on the route Anappara - Angamaly - Perumbavoor, seeking to quash Ext.P8 order passed by the 1[st] respondent dated 05.04.2016, whereby temporary permit was declined to petitioner on the route Angamaly - Perumbavoor, on the ground, grant of temporary permit in private sector is violation of the scheme of nationalization. Material facts for the disposal of the writ petition are thus: 2. Regular permit was issued to the petitioner on 15.12.1998, which was valid up to 14.12.2003. Petitioner submitted application for renewal on 31.01.2015. He also filed an application for replacement of the vehicle with stage carriage No.KL-07/AC 9256. Pending application for renewal of permit, petitioner was granted temporary permit in order to operate in place of the above service. In order to issue temporary permit, a route enquiry was conducted through the 2 **W.P.(C) No.26254 of 2016** field officers and Ext.P1 is one among the said reports. The report shows that the service operated by the petitioner is the sole service in the said route and the entire travelling public including students are depending upon the above service. Since there was objection from existing operators, petitioner approached this Court and secured Ext.P2 judgment. Ext.P3 is the true copy of the temporary permit issued to the petitioner, valid up to 12.01.2016. 3. Though, for re-issue of temporary permit, petitioner submitted application, it was refused on the reasoning, petitioner's application for renewal of permit is not granted consequent to the delay, which is not condoned, and therefore since the route is having objectionable overlapping of a portion, Angamaly to Perumbavoor, the temporary permit application submitted under Sec.87(1)(c) of the Motor Vehicles Act, 1988 [for short, 'the Act'] cannot be allowed, evident from Ext.P4. Against the rejection of renewal application of the permit, petitioner preferred appeal as MVAA No.48 of 2016, which is pending consideration before the State Transport Appellate Tribunal. 3 **W.P.(C) No.26254 of 2016** 4. According to the petitioner, the service which is being operated from 15.12.1993 has to be continued on the above said route. Since the authorities are not in a position to issue temporary permit under Sec.87(1)(c) in view of the overlapping of the portion, petitioner submitted application for grant of temporary permit under the proviso to Sec.104 of the Act, evident from Ext.P5, along with Ext.P6 covering letter. Since there was delay in considering the application, petitioner secured Ext.P7 judgment from this Court, whereby it was directed to consider the application in the ensuing meeting of the 1[st] respondent. Thereupon, 1[st] respondent considered the application and passed Ext.P8 order, which is impugned in this writ petition. 5. Third respondent has filed a statement contending that Ext.P8 order passed by the 1[st] respondent is in accordance with law. That the application of the petitioner has to be considered as application for fresh permit on the route and the total route length is 30 kms. out of which 16 kms. from Angamaly to Perumbavoor is objectionably overlapping Kottayam - Kozhikode notified route, vide notification dated 14.07.2009. As per clause 5(c) of the notification, permit can 4 **W.P.(C) No.26254 of 2016** be issued to the private sector if the overlapping is 5 kms. or 5% of the route length whichever is less on the notified route, and in the present case, overlapping exceeds the permissible limit. That apart, it is also contended that, proviso to Sec.104 of the Act is not applicable in respect of the route applied by the petitioner. Out of the total route length of Anappara - Angamaly - Perumbavoor, the portion from Anappara to Angamaly does not form part of the notified route. The notified route is Kottayam - Kozhikode via Muvattupuzha - Perumbavoor - Angamaly - Thrissur, and the 3[rd] respondent is conducting large number of services on the notified route. The proviso to Sec.104 of the Act applies only when State Transport Undertaking is not operating sufficient service on the notified route. Therefore, according to the 3[rd] respondent, Ext.P5 application is not at all maintainable under law. It is also contended that the permit claimed by the petitioner issued on 15.12.1995 and valid up to 14.12.2003 is not saved in the notification dated 14.07.2009. As per Clause 5(b) of the notification, existing service issued with permit on or before 09.05.2006 shall be permitted to continue. Since the permit of the petitioner expired on 14.12.2003, it is not a saved permit 5 ## **W.P.(C) No.26254 of 2016** as held by the Apex Court in _**'T.N. Reghunatha Reddy v. Mysore State Transport Authority**_ ' [AIR 1971 SC 1662]. 6. It is also contended, against Ext.P8 order of rejection of permit, petitioner is having statutory remedy of filing revision under Sec.90 of the Act before the State Transport Appellate Tribunal and the petitioner has not availed the statutory remedy available and there are no circumstances warranting interference of this Court under the writ remedy provided under the Constitution of India. According to the 3[rd] respondent, once a scheme is published as per the provisions of the Motor Vehicles Act in relation to any area or route or portion thereof, no person other than the State Transport Undertaking may operate on the notified route, except as provided under the scheme. Therefore, no private operator can operate his vehicle on part or portion of a notified area or notified route. The 3[rd] respondent has also taken contentions with respect to the law laid down by the Apex Court in its various judgments and contends that petitioner has not made out any case so as to enable this Court to issue a writ quashing Ext.P8 order. 6 **W.P.(C) No.26254 of 2016** 7. Heard learned counsel for the petitioner, learned Standing Counsel for the 3[rd] respondent and the learned Senior Government Pleader. Perused the documents on record and the pleadings put forth. 8. The question arises for consideration in this writ petition is whether any manner of interference is required on Ext.P8 order passed by the 1[st] respondent, declining temporary permit to the petitioner on the ground that a portion of the route sought to be operated by the petitioner has an objectionable overlapping exceeding the limit prescribed under Notification, 2009. Ext.P5 is an application submitted by the petitioner under the proviso to Sec.104 of the Act. The said provision enables an operator to submit an application to operate on a route securing temporary permit. But the said provision is circumscribed by certain conditions. The proviso reads as follows: _“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_ 7 ## **W.P.(C) No.26254 of 2016** _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”._ 9. Therefore, on a reading of the proviso, it is explicit, same is an exception carved out from Sec.104. Sec.104 creates prohibition against grant of permits on a route notified as per sub-section (3) of Sec.100, subject to the scheme. However, the proviso is dealing with a situation where the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme has not submitted any application for permit, the authority is vested with powers to grant temporary permit to any operator in respect of such notified area or notified route subject to the condition that such permit shall be ceased to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route. Therefore, it can be seen that when an application for temporary permit is filed by the operator, a duty is cast upon the statutory authority to ascertain that 3[rd] respondent is operating sufficient number of vehicles so as to cater the needs of the public within the notified area. On a reading of Ext.P8, it is not discernible **W.P.(C) No.26254 of 2016** 8 whether any enquiry was made by the 1[st] respondent to that effect. It only says, counsel representing the 3[rd] respondent has intimated, they are operating sufficient stage carriages in between Angamaly and Perumbavoor. That by itself is not a sufficient reason for declining a temporary permit. It is not discernible from Ext.P8 the number of services operated by 3[rd] respondent taking into account the density of passengers travelling on the route Angamaly to Perumbavoor. 10. However, learned Standing Counsel for the 3[rd] respondent has contended that petitioner is not entitled to apply for a permit since the petitioner was operating the route Anappara - Angamaly - Perumbavoor, out of which Anappara to Angamaly is not a notified route. According to the 3[rd] respondent, an application for a temporary permit can be submitted under the aforesaid proviso only if the entire route length is a notified route. However, learned counsel for the petitioner in that regard has invited my attention to a Division Bench judgment of this Court in _**'Kerala State Road Transport Corporation v. Regional Transport Authority, Kottayam and others'**_ [W.A.No.188 of 1986 dated 16.12.1986], where this question was considered under the **W.P.(C) No.26254 of 2016** 9 provisions of the Motor Vehicles Act, 1939. On a reading of the facts and circumstances stated thereunder, it is clear, the very same question was raised by K.S.R.T.C in the writ appeal. However, this Court held that if the appellant has not applied for grant of stage carriage permit in respect of the route in question, the proviso to Sec.68 FF [presently, proviso to Sec.104] empowers the R.T.A to grant temporary permit till a regular permit is granted in favour of the K.S.R.T.C and accordingly this Court has held that the petitioner is entitled to apply for temporary permit on the route in question in the said case. 11. So also, learned counsel has invited my attention to the judgment of this Court in _**'Mohankumar R. v. Government of Kerala and another**_ ' [2016 (2) KLT 963], following the judgment of the Apex Court in _**'Punjab Roadways v. Punjab Sahib Bus & Transport Co.'**_ [(2010) 5 SCC 235] and contended, merely because the route is notified, and an operator is operating on a route outside the notification, that by itself is not an enabling or sufficient circumstances for the statutory authority to decline a permit. So also, learned counsel has invited my attention to the **W.P.(C) No.26254 of 2016** 10 judgment rendered in _**'T.J. Raju & others v. Regional Transport Authority, Ernakulam and others**_ ' [W.P.(C) No.24089 of 2016 and connected cases], where aforesaid two judgments of this Court and the Apex Court were taken note of and directed the 1[st] respondent statutory authority to consider the temporary permit application of the petitioner therein. 12. On the other hand, learned counsel for the 3[rd] respondent has invited my attention to the judgment of the Apex Court in _**'G.T. Venkataswamy Reddy v. State Transport Authority and others**_ ' [AIR 2016 SC 3469] and contended that so far as a notified route in question is concerned, all provisions are settled and it was held in paragraph 46 that Sec.68FF of the Motor Vehicles Act, 1939 creates a restriction on grant of permits in respect of notified area or notified route and once a route is published, then it prohibits grant of any permit except in accordance with the provisions of the scheme. Therefore, according to the learned Standing Counsel, the law is well-settled and once a scheme is notified, a private operator can seek a temporary permit only if the State Transport Undertaking is not operating sufficient service in the route. Learned counsel has also contended that 11 **W.P.(C) No.26254 of 2016** there are no illegal circumstances in Ext.P8 order enabling the petitioner to approach this Court rather than seeking statutory remedy under the Motor Vehicles Act, 1988. 13. Taking into account the respective submissions made across the Bar, I am of the considered opinion that the question with respect to the maintainability of an application seeking temporary permit on a portion of the notified route is well settled in the judgment in _**'Punjab Roadways'**_ ( _supra_ ) which was taken into account by a Division Bench of this Court in ' _**Mohankumar**_ 's case ( _supra_ ) and has held that the authority should be satisfied that the State Transport Undertaking is operating its vehicles in sufficient strength so as to cater the needs of the travelling public. So also was the circumstances considered by this Court in _**'T.J. Raju'**_ cited _supra_ . Therefore, in my considered opinion, a bounden duty is cast upon the 1[st] respondent, instead of conducting a shallow and peripheral enquiry, to consider an application for temporary permit submitted by a private operator in a more deeper sense in order to ascertain and be satisfied, sufficient services are operated by the State Transport Undertaking on the route in question. First respondent is also to ensure, public 12 **W.P.(C) No.26254 of 2016** is benefited on the route in question by the service operated by the 3[rd] respondent. So also, I am of the considered opinion, if the entire route length of the private operator is to be taken into account to entertain an application under the proviso to Sec.104 of the Act, it may lead to disastrous consequences rather than rendering benefit to the public under the proviso. Which thus means, a passenger cannot undertake a journey in the entire route length, travelling in a single stage carriage, putting the passenger into innumerable difficulties and inconveniences. The betterment of public transport system is a greater need of the day so as to reduce the density of traffic on roads. Merely because the State Transport Undertaking has stated that it is operating sufficient services on the route in question, that by itself, will not suffice the situation. Therefore, in my considered opinion, 1[st] respondent has not exercised the power conferred on him, in a proper and effective manner to arrive at a reasonable and logical conclusion and hence Ext.P8 order suffers from the vice of illegality, arbitrariness, and irrationality warranting interference of this Court under Article 226 of the Constitution of India. **W.P.(C) No.26254 of 2016** 13 14. In the circumstances, I quash Ext.P8 order and direct the 1[st] respondent to re-consider Ext.P5 application submitted by the petitioner, after providing sufficient opportunity to the 3[rd] respondent to contest the proceedings, and take a decision on the same within three weeks from the date of receipt of a copy of this judgment, taking into account the law laid down by the Apex Court and this Court in its various judgments, and as per the observations and directives contained above. Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/01.09.2016