Thomas, S/o Devasia Thomas v. State Transport Appellate Tribunal, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938** **WP(C).No. 19403 of 2016 (A) ----------------------------** **PETITIONER:** - **-----------** **THOMAS, S/O DEVASIA THOMAS, MANNANAL HOUSE, LAKKATTOOR P.O, KOTTAYAM.** **BY ADV. SRI.I.DINESH MENON** ## **RESPONDENT(S):** **--------------** - **1.THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM - 682 011.** - **2.THE REGIONAL TRANSPORT AUTHORITY, KOTTAYAM - 686 002.** **3.THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOTTAYAM - 686 002.** - **4.THE D.T.O,** **K.S.R.T.C, KOTTAYAM - 686 001.** **R1 TO R3 BY SENIOR GOVT. PLEADER SRI.K.A.SANJEETHA R4 BY ADV. SRI.P.C.CHACKO, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-06-2016 ALONG WITH WPC.20602/2016, THE COURT ON 29-06-2016 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 19403 of 2016 (A)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** |**-----------------------**| |---| |**EXHIBIT P1 : TRUE COPY OF THE REGULAR PERMIT.**| |**EXHIBIT P2 : TRUE COPY OF THE TEMPORARY PERMIT**| |**DATED 24-11-2015.**| |**EXHIBIT P3 : TRUE COPY OF THE PROCEEDINGS DATED 08-02-2016.**| |**EXHIBIT P4 : TRUE COPY OF THE REVISION PETITION:**| |**EXHIBIT P5 : TRUE COPY OF THE OBJECTION OF KSRTC.**| |**EXHIBIT P6 : TRUE COPY OF THE REPLY TO THE OBJECTION.**| |**EXHIBIT P7 : TRUE COPY OF THE ORDER DATED 03-05-2015.**| |**RESPONDENT(S)' EXHIBITS:**<br>**NIL**| |**-----------------------**| |**//TRUE COPY//**| **P.S. TO JUDGE** **mbr/** ## **SHAJI P. CHALY, J.** ----------------------------------------------- **W.P.(C). Nos.19403 and 20602 of 2016 ----------------------------------------------Dated this the 29[th] day of June, 2016** ## **JUDGMENT** Captioned writ petitions are intrinsically connected and therefore, they are disposed of together. 2. W.P(C) No.19403/2016 is filed by the petitioner seeking direction to the State Transport Appellate Tribunal, Ernakulam to re-consider Ext.P7 order passed in M.P.No.218/2016 in MVARP No.63/2016 dated 3.5.2016 and also a direction to the 3[rd] respondent to grant and issue temporary permit on the route Parippu - Kottayam as town service, in respect of stage carriage bearing No.KlL-07 AX 4946 pending final orders in the revision petition before the Tribunal. W.P.(C) No.20602/2016 is filed by KSRTC, challenging that part of Ext.P7 order granting partial relief to the petitioner in the other writ petition. 3. Brief facts for the disposal of the writ petition are WPC 19403 and 20602 of 2016 2 thus; petitioner was the holder of regular permit on the route Parippu - Kottayam, which was granted and issued by the Regional Transport Authority, Kottayam as town service. The period of validity of the regular permit was from26.03.2015. The application for renewal was submitted at a time and temporary permits were being issued in favour of the petitioner under Section 87(1)(d) of the Motor Vehicles Act and the last of the said permit was valid till 25.3.2016, evident from Ext.P2. The application for renewal was considered by the Regional Transport Authority, Kottayam at its meeting held on 8.2.2016 and it was rejected on two grounds; (a) offending of Kottayam - Neendoor Complete Exclusion Scheme (b) offending of Ernakulam - Thekkady Supplementation Scheme, as per Ext.P3 proceedings. 4. Thus aggrieved by Ext.P3, petitioner has filed revision before the 1[st] respondent Tribunal. The 4[th] respondent has filed objection to the revision petition, to which, petitioner has submitted a reply along with relevant notification dated WPC 19403 and 20602 of 2016 3 14.7.2009 relating to supplementation scheme, that were relied on by the 4[th] respondent and also the draft scheme dated 8.2.2016. It is the contention of the petitioner that private stage carriage operators can operate only in terms of the schemes provided such as; (a) Complete Exclusion Scheme (b) Complete Exclusion Scheme with exception clause (c) Partial exclusion Schemes (d) Supplementation Schemes. According to the petitioner, in the case at hand, the schemes involved are complete exclusion scheme and supplementation scheme. The complete exclusion Kottayam - Neendoor is total exclusion scheme, which prohibits operation as mofussil service on the route covered by scheme. As regarding the Ernakulam-Thekkady scheme, it is a supplementation scheme dated 14.7.2009, wherein there are two things. One is relating to grant of fresh permits and the second is saving clause of existing permits. 5. Petitioner has preferred a petition seeking temporary permit, which was dismissed as per Ext.P7 order dated WPC 19403 and 20602 of 2016 4 3.5.2016. According to the petitioner, in the first half of Ext.P7 order with respect to Kottayam - Neendoor Scheme, it is found in favour of the petitioner. But in second limb, found against the petitioner, wherein it is held that the overlapping exceeds 5%. According to the petitioner, the 1[st] respondent Tribunal ought to have found that clause 5 of the notification dated 14.7.2009 is actually relating to grant of fresh regular permit application and not the clause applicable to renewal of permit. Therefore, it is the contention of the petitioner that the Tribunal went completely wrong in upholding Ernakulam - Thekkady Scheme. That apart it is contended by the petitioner that as per the terms of the scheme itself, petitioner is entitled for grant of temporary permit as the regular permit in question is one issued after 2006. It is also contended by the petitioner that, the reliance placed by the Tribunal in the judgment reported in **Martin v. STAT** [2013 KHC 543] has no applicability to the facts and circumstances of the case, as petitioner sought for permit in terms of the WPC 19403 and 20602 of 2016 5 scheme itself. What is considered in **Martin V. STAT** is granting of fresh permits and the scheme considered are Aluva - Vadakkumpuram and Ernakulam - Thrissur complete exclusion scheme. That apart it is contended that the Tribunal erred in not finding that as per clause 4, till such time the KSRTC takes over the existing stage carriage on initiative of the Chief Executive Officer of the State Transport Undertaking as regarding permit issued after 9.5.2006, temporary permit alone shall be issued. Therefore according to the petitioner, petitioner is entitled to grant of temporary permit by virtue of the scheme itself. Therefore, it is the contention of the petitioner that the Tribunal went wrong by declining temporary permit to the petitioner as per Ext.P7 order. 6. There is no counter affidavit filed by any of the respondents in this writ petition. However the Kerala State Road Transport Corporation has filed W.P.(C) No.20602/2016 seeking to quash Ext.P4 order of the Tribunal corresponding WPC 19403 and 20602 of 2016 6 to Ext.P7 in the other writ petition to the extent of finding that Kottayam - Parippu route applied by the 3[rd] respondent does not violate Ext.P5 scheme. The contention advanced by the Corporation in the said writ petition is that the overlapping exceeds the permissible limit and the 3[rd] respondent, who is the petitioner in the other writ petition, is not entitled to get renewal of permit. That apart it is contended that, the contention advanced by the petitioner before the Tribunal was that the proposed route objectionably overlaps Kottayam - Neendoor Ext.P5 complete exclusion scheme as well as Ernakulam - Thekkady notified route. However, the Tribunal found that the route applied by the 3[rd] respondent is in violation of the Kottayam - Neendoor complete exclusion scheme dated 6.5.1965 and the route only offend the scheme dated 14.07.2009. Therefore, the petitioner Corporation is challenging the impugned order to the extent of finding that Kottayam - Parippu route applied by the 3[rd] respondent does not violate Ext.P5 scheme. WPC 19403 and 20602 of 2016 7 7. Heard learned counsel for the petitioners in the respective writ petitions, learned Senior Government Pleader and perused the pleadings and documents on record. 8. The sole question to be considered is whether any interference is required in the order impugned passed by the Tribunal dated 3.5.2016, produced as Exts.P7 and P4 in the respective writ petitions. So far as the finding with respect to the notification of the complete exclusion Kottayam - Neendoor Scheme is concerned, the Tribunal has found that the permit produced by the petitioner would show that it is issued for conducting service as town service and therefore, the contention of the Corporation that, the route covered by the permit of the petitioner overlaps Kottayam - Neendoor complete exclusion scheme cannot be accepted. That apart it is found by the Tribunal that the said contention raised by the Corporation had been earlier rejected by the Tribunal by its judgment dated 26.09.2009 in M.V.A.A. No.394/2009, by which, the Tribunal directed the authorities concerned to WPC 19403 and 20602 of 2016 8 issue fresh regular permit to the petitioner. The Tribunal concluded the finding by holding that the Corporation was a party to the aforesaid appeal and further that the Corporation has challenged the aforesaid finding of the Tribunal before this court. 9. On an evaluation of the attendant circumstances and the conclusive nature of the findings rendered by the Tribunal in the appeal, as specified above, I am of the considered opinion that there are no legal or factual circumstances warranting interference in the order of the Tribunal with respect to Kottayam - Neendoor complete exclusion scheme. I also do not find any illegality, irrationality or other legal infirmities with respect to the findings of the Tribunal, warranting interference in a judicial review under Article 226 of the Constitution of India. 10. The next question is whether any manner of interference is required with respect to the findings of the Tribunal that the route covered by the permit of the petitioner WPC 19403 and 20602 of 2016 9 overlaps Ernakulam - Thekkady notified route at a distance of 600 meters. According to the Tribunal, there is no dispute with regard to the fact that Ernakulam - Thekkady route is covered by notification dated 14.7.2009. Tribunal has also found that as per the said notification, the maximum distance of overlapping permitted is 5 kms. or 5% of the total route length of the permit whichever is less. Tribunal has also found that the total route length is 10.500 kms. and therefore, there is overlapping from Gomathy Pump Junction to Baker Junction at a distance of 600 meters on the notified route Ernakulam - Thekkady. In such circumstances, Tribunal held that the distance of overlapping exceeds 5% of the total route length and therefore, held that the petitioner has got no prima facie case to get an interim order for granting temporary permit. Tribunal has also relied on the judgment of this court in **Martin v. STAT** referred supra to arrive at the conclusion that if the overlapping exceeds 5 kms. or 5% of the length of their own routes, the same is violation of the WPC 19403 and 20602 of 2016 10 notified route and therefore, cannot be permitted. 11. According to the learned counsel for the petitioner, the Tribunal has legally erred in not evaluating the situation as per clause 4 of the notification which read thus: 4. Whether the services are to be operated by the State Transport Undertaking to the exclusion of other persons or otherwise. Yes, the permits issued in the private sector on before 9.5.2006 will be allowed to continue till the Expiry of the respective permits. Thereafter regular permits will be granted to them. When the State Transport Undertaking applied for introducing new services in the above routes, corresponding number of existing private stage carriage permits in the said routes whose permits expire first after filing application by the state transport undertaking shall not be renewed. As regards to permits issued after 9.5.06 temporary permits alone shall be issued afresh on expiry in these routes or any portion thereof till such WPC 19403 and 20602 of 2016 11 time the State Transport replaces with new services. The decision of the State Transport Undertaking to apply for permit to replace the existing stage carriages as above shall be taken by the Chief Executive of the State Transport Undertaking. 12. On a reading of the said clause contained under Ext.P6, it is categoric and clear that as regards permit issued after 9.5.2006, temporary permit alone shall be issued afresh on expiry in these routes or any portion thereof till such time the State Transport undertaking replaces with new services. To the said pinpointed contention advanced by the learned counsel for the petitioner, learned counsel for the Corporation contented that, as per rule 2(ca) of Kerala Motor Vehicles Rules, 1989, the Government should notify city or town service and since there is no notification in that regard, petitioner is not entitled to operate on the route. That apart it is contended that since the town is not notified, entire area is WPC 19403 and 20602 of 2016 12 to be treated as mofussil area. Learned counsel has invited my attention to Section 104 of the Motor Vehicles Act, which read thus: ## “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 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 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.” 13. Therefore, according to the counsel, no manner of interference is required to the order passed by the Tribunal WPC 19403 and 20602 of 2016 13 with respect to the overlapping of 600 meters in Ernakulam - Thekkady notified route. Learned counsel for the petitioner has invited my attention to the judgment of this court in **Mohammed Naseem v. Regional Transport Authority & Ors.** [2003(1) KHCACJ 501 (Ker) wherein this question was considered and held in paragraph 5 as follows: “The question is whether it may be possible for the RTA to take a stand that because of Ext.P5 scheme application for a city service could be rejected. On a reading of Ext.P5, it is clear that what had been under contemplation was exclusion of mofussil service (see item 3 of Schedule II of the scheme). What is notified is a mofussil service and that alone was in contemplation and never a town service. To insist that this should operate to the disadvantage and exclusion of all others appears to be a rather sinister approach. The state carriages proposed by the KSRTC were a minimum of 10 and minimum of 8. This was a story of 1974. After 26 years, to take a stand that the notification should continue to successfully bind the hands of the RTA , according to me, is unrealistic. This is apart from the basic issue of the nationalisation scheme - if at all only a mofussil service would have been objectionable.” WPC 19403 and 20602 of 2016 14 14. Therefore, counsel contends that the petitioner was permitted to operate the service as town service ever since the grant of permit and therefore, the Tribunal went wrong in holding that since it overlaps 600 meters in the notified route petitioner is not entitled to grant of permit. 15. Taking into account the aforesaid fact situation and reckoning the law with respect to the notified route, evident from Ext.P6 notification, temporary permit can be issued till such time the State Transport Undertaking replaces with new services. That apart 'Note' provided to rule 2(ca) of Kerala Motor Vehicles Rules read thus:- “Nothing contained in this clause shall apply to the permits already granted for operating city or Town services and their renewals.” 16. In my view, the said Note ought to have been taken note of by the Tribunal and considered the issue, especially in view of the fact that, temporary permits were being issued to the petitioner to operate the stage carriage as a city service. In my considered opinion, the Tribunal has also lost sight of WPC 19403 and 20602 of 2016 15 clause 4 of Ext.P6 notification, which led to the finding that, since the petitioner overlaps the route Ernakulam - Thekakdy exceeding 5% of the total route length, petitioner is not entitled to get an interim order for grant of temporary permit. Viewed in that manner, said order suffers from illegality and vice of arbitrariness, persuading this court to interfere with the same. Thus Ext.P7 order passed by the Tribunal dated 3.5.2016 in M.P.No.218/2016 in MVARP No.63/2016 is quashed to the extent it deals with overlapping of Ernakulam - Thekkady notified route. Since the subject matter is pending before the Tribunal in revision, Tribunal is directed to dispose of the revision itself at the earliest and at any rate within a period of one month from the date of receipt of a copy of this judgment, taking into account the provisions of the scheme, and the findings contained above untrammeled by any adverse observations contained in this judgment. However, in view of the findings rendered above, 3[rd] respondent is directed to consider application of the petitioner seeking WPC 19403 and 20602 of 2016 16 temporary permit within a period of two weeks from the date of receipt of a copy of this judgment. Accordingly W.P.(C) No.19403/2016 is allowed and W.P.(C) No.20602/2016 is dismissed. Writ petitions are disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 24.06.2016