TRICHUR DISTRICT PRIVATE BUS OPERATOR'S ASSOCIATION & MOHAMMED RASHEED v. REGIONAL TRANSPORT AUTHORITY, THRISSUR, SECRETARY, REGIONAL TRANSPORT AUTHORITY, THRISSUR; KERALA STATE ROAD TRANSPORT CORPORATION; P.B. RATHEESH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939** ## **WP(C).No. 19139 of 2017 (N)** **----------------------------** **PETITIONER(S): ------------------------** **1. TRICHUR DISTRICT PRIVATE BUS OPERATOR'S ASSOCIATION, REPRESENTED BY ITS PRESIDENT, WEST PALACE ROAD, THRISSUR-680 020.** **2. MOHAMMED RASHEED, 49 YEARS, S/O.IBRAHIM, KARUKAPADATH HOUSE, ERIYAD P.O., KODUNGALLUR.** **BY ADV. SRI.P.DEEPAK.** - **RESPONDENT(S): --------------------------** **1. THE REGIONAL TRANSPORT AUTHORITY, THRISSUR-680 002.** **2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, THRISSUR-680 022.** **3. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY CHAIRMAN & MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695 001.** **4. P.B. RATHEESH, PUTHENKATTIL HOUSE, EDAVILANGU P.O., KODUNGALLUR, THRISSUR-680 115.** - **R1 & R2 BY SR. GOVT. PLEADER SRI.P.M. MANOJ. R3 BY ADV. SRI.P.C.CHACKO, SC. R4 BY ADV. SRI.M.JITHESH MENON.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2017, THE COURT ON 07/07/2017 DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 19139 of 2017 (N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 08-08-2016 IN WPC NO.26268 OF 2016.** - **EXHIBIT P2 A TRUE COPY OF THE OPENING PAGE OF THE AGENDA FOR THE MEETING OF THE RTA HELD ON 26-09-2016.** - **EXHIBIT P3 A TRUE COPY OF THE REGISTRATION PARTICULARS OF KL-07/AM 1020.** - **EXHIBIT P4 A TRUE COPY OF THE OPENING PAGE OF THE AGENDA FOR THE MEETING OF THE RTA HELD ON 05-04-2017.** - **EXHIBIT P5 A TRUE COPY OF THE TIME HEARING NOTICE DATED 02-05-2017 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE DECISION OF THE 1ST RESPONDENT (G/72563/2016) TAKEN BY CIRCULATION OF PAPERS.** - **EXHIBIT P7 A TRUE COPY OF THE OBJECTION DATED 22-05-2017 FILED BY THE 1ST PETITIONER.** - **EXHIBIT P8 A TRUE COPY OF THE DECISION OF THE 1ST RESPONDENT IN ITEM NUMBERED 36 AND SUPPLEMENTARY ITEM NO.36 TAKEN IN THE MEETING HELD ON 29/06/2016.** ## **RESPONDENT'S EXHIBITS:-** - **EXT.R4A COPY OF THE APPLICATION FOR REGULAR PERMIT SUBMITTED BY THE 4TH RESPONDENT DATED 27/11/2015.** - **EXT.R4B COPY OF THE COVERING LETTER FILED BY THE 4TH RESPONDENT DATED 27/11/2015.** - **EXT.R4C COPY OF THE LETTER DATED 18/08/2016.** - **EXT.R4D COPY OF THE REPORT OF THE FIELD OFFICER DATED 08/11/2016.** - **EXT.R4E COPY OF THE ROAD FITNESS CERTIFICATE ISSUED BY THE ASST. ENGINEER, KODUNGALLUR DATED 14/06/2017.** - **EXT.R4F COPY OF THE JUDGMENT RENDERED BY THIS HONOURABLE COURT IN WP(C).NO.18233/2017 DATED 07/06/2017.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.19139 of 2017 ----------------------------------------------Dated this the 7[th] day of July, 2017** ## **JUDGMENT** This writ petition is filed by the petitioners seeking to quash Ext.P6 permit issued by the 1[st] respondent to the 4[th] respondent invoking Rule 130 of the Kerala Motor Vehicle Rules, 1989, by circulation of papers to the members of the Regional Transport Authority, and other related reliefs. Material facts for the disposal of the writ petition are as follows: 2. The 1[st] petitioner is an association of stage carriage operators, and the District Unit of Kerala State Private Bus Operators' Federation. The 2[nd] petitioner is a stage carriage operator and member of the 1[st] petitioner association, holding a regular permit in respect of vehicle bearing No.KL-10/Q 427. The 4[th] respondent applied for a regular permit to conduct service on the route Kodungallur - Maniyamkavu, according to the petitioners, a route substantially overlapping the route traversed by the 2[nd] petitioner's stage carriage. Alleging that the said application is not being considered by the 1[st] **W.P.(C) No.19139 of 2017** 2 respondent, the 4[th] respondent filed W.P.(C) No.26268 of 2016 before this Court, and this Court directed the RTA to consider and dispose of the application in the next meeting scheduled to be held on 30.08.2016. According to the petitioners, Ext.P1 judgment was not produced before the RTA even though the meeting originally scheduled to be held on 30.08.2016 was adjourned and held one month later i.e. on 26.09.2016, evident from Ext.P2 agenda of the meeting. 3. It was on 20.01.2017, i.e. more than three months after Ext.P1 judgment, 4[th] respondent procured a stage carriage bearing registration No.KL-07/AM 1020, a 2003 model vehicle which cannot be operated beyond March, 2018, evident from Ext.P3. On 05.04.2017, there was another meeting of the RTA held at Thrissur. Even though more than 200 matters are boarded up for consideration in the said meeting, the 4[th] respondent's application for regular permit was not one among them, evident from Ext.P4. 4. Nevertheless, on 02.05.2017, almost one month after the meeting of the RTA held on 05.04.2017, a notice was issued by the 2[nd] respondent, scheduling a timing conference on 17.05.2017 for the purpose of settling the timings for the 3 **W.P.(C) No.19139 of 2017** regular permit granted to the 4[th] respondent on the route proposed by him, evident from Ext.P5. It is also submitted that, Ext.P5 notice revealed for the first time that a regular permit had been sanctioned to the 4[th] respondent, even without placing the same in a regular meeting of the RTA, even though such meetings had been held between 08.08.2016 and 03.05.2017, i.e. after the date of Ext.P1 judgment. Ext.P5 further revealed that the permit was granted by RTA by circulation of papers under Rule 130 of Rules, 1989. According to the petitioners, 4[th] respondent had managed to get the regular permit in a surreptitious manner behind the back of all interested/affected operators and enroute operators objecting to the conduct of the timing conference on 17.05.2017, and the same was adjourned. 5. Immediately thereafter, petitioners applied for a copy of the decision of the RTA granting regular permit to the 4[th] respondent, which was issued on 29.05.2017, evident from Ext.P6. According to the petitioners, Ext.P6 suffers from various infirmities including not bearing a date. It is also stated that the permit has been granted by the RTA relying exclusively on the data furnished by a 'route enquiry officer', 4 **W.P.(C) No.19139 of 2017** whose identity is also not revealed. It is further stated that, Ext.P6 overlaps the notified routes of the KSRTC and it is also stated that there is a 'virgin portion' with no stage carriage service. Therefore, according to the petitioners, interference is warranted to Ext.P6 order, since the same being arbitrary and illegal. 6. Fourth respondent has filed a detailed counter affidavit, disputing the allegations and claims and demands raised by the petitioners. The maintainability of the writ petition itself is under challenge, contending that Ext.P6 is a revisable order under Sec.90 of the Motor Vehicles Act. That apart, it is stated that, the 1[st] petitioner association is not having any _locus standi_ or grievance and the 2[nd] petitioner claims to be a stage carriage operator, but has not disclosed the nature of overlapping of his route with the service of the 4[th] respondent. According to the 4[th] respondent, there is no averment made in the writ petition regarding the grievance of the petitioners. That apart, it is submitted that, 4[th] respondent applied for a regular permit to operate on the route Kodungalloor - Maniyamkavu via Thankamkulam etc. etc. on 27.11.2015, evident from the application and covering letter **W.P.(C) No.19139 of 2017** 5 viz., Exts.R4(a) and (b) respectively. According to the 4[th] respondent, the route proposed is through ill-served interior areas of Thrissur District and the 4[th] respondent specified that suitable vehicle will be furnished later. It is also stated that, the application was being kept pending due to the fact that the 1[st] respondent had not met after 03.10.2015. It is also stated that the delay is only attributable to the 1[st] respondent. It is further stated that the availability of a ready vehicle is not a criteria for an application to be considered. It was at that juncture, 4[th] respondent has approached this Court and secured Ext.P1 judgment. It is also stated that Ext.P1 judgment is produced before the 1[st] respondent by a covering letter Ext.R4(c) dated 18.08.2016. Therefore, the allegation raised by the petitioners of not producing the judgment before the 1[st] respondent is not at all correct, according to the 4[th] respondent. The application submitted by the 4[th] respondent was not boarded in the meeting held on 26.09.2016 and on 26.09.2016, the agenda shows that more than 450 items were placed for consideration by the 1[st] respondent. Therefore, it is submitted that, since in view of Ext.P1 judgment directing the application to be considered expeditiously and since no **W.P.(C) No.19139 of 2017** 6 meeting of the 1[st] respondent was scheduled immediately, the files were circulated among the members. That apart, it is stated that, Ext.P1 judgment gave liberty to 1[st] respondent to take a decision by circulation of papers. The 1[st] respondent had also called for a report from the Motor Vehicles Inspector, who had given Ext.R4(d) report dated 08.11.2016, and therein, according to the 4[th] respondent, overlapping of 1.18 Kms. on the notified route is stated. Therefore, it was considering Ext.R4(d) report that Ext.P6 decision was rendered granting regular permit to the 4[th] respondent, also directing to provide one additional trip in the peak hours from S.N. Puram to Maniyankavu. 7. In compliance with the directions in Ext.P6, 4[th] respondent produced a set of timings with additional trip in the peak hours, along with the records of the vehicle KL-07-AM1020 on 21.03.2017. Therefore, according to the 4[th] respondent, direction rendered by the 1[st] respondent in Ext.P6 order is complied with. Other contentions with respect to overlapping of notified route etc. are all denied by the 4[th] respondent. That apart, it is contended that, since there was delay in granting the permit, 4[th] respondent approached this **W.P.(C) No.19139 of 2017** 7 Court and secured Ext.R4(f) judgment. It is also stated that the 2[nd] petitioner is at liberty to raise his objection with regard to the timing in the timing conference scheduled as per the above judgment. 8. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition and also producing Ext.P8 to establish that large number of applications were boarded up for consideration in the meeting held on 29.06.2016. 9. Heard learned counsel for the petitioners, learned Senior Government Pleader and the learned counsel appearing for the 4[th] respondent. Perused the documents on record and the pleadings put forth by the respective parties. 10. Learned counsel for the petitioners relied on Rule 123 of KMV Rules to canvass the proposition that as per subrule (2) thereunder, adequate notice of such meetings and the business to be transacted thereat shall be given for the information of such persons who, in the opinion of the Regional Transport Authority or of its Secretary, may reasonably have a claim to be permitted to attend the meeting for the purpose of making representations. Therefore, according to the learned 8 **W.P.(C) No.19139 of 2017** counsel, instead of circulating papers, necessary notice should have been provided to all the enroute operators enabling them to object to the application submitted by the 4[th] respondent. My attention is also invited to Rule 130 of KMV Rules, which deals with circulation of papers, which read thus: _“_ _**130. Circulation of papers** .--(1) In case of urgency, orders may be taken by the Secretary after getting the approval of the Chairman by circulating papers to the members of the Regional Transport Authority unless any person has a right to be heard in accordance with the provisions of the Act and of these rules. Where papers are circulated, it is open to any member to require that the matter shall be discussed at a meeting of the Authority._ _(2) Nothing contained in sub-rule (1) shall prevent the Regional Transport Authority from deciding by the procedure of circulation any matter which has been considered at a meeting or has been the subject of a hearing and upon which a decision has been reserved.”_ 11. Relying upon the said rule, the predominant contention advanced by the learned counsel is that, Rule 130 can be invoked only in case of urgency in which case orders may be taken by the Secretary, after getting the approval of the Chairman by circulating papers to the members of the RTA. Therefore, according to the learned counsel, if there was urgency, the same ought to have been reflected in Ext.P6 impugned order and in the absence of any reasons assigned 9 **W.P.(C) No.19139 of 2017** for urgency, Ext.P6 lacks _bonafides_ and it amounts to arbitrary and illegal action. 12. Learned counsel for the petitioners has invited my attention to the judgments of the apex court in _**'Swadeshi Cotton Mills v. Union of India'**_ [(1981) 1 SCC 664], _**'Dora Phalauli v. State of Punjab'**_ [(1979) 4 SCC 485], _**'Narayan Govind Gavate v. State of Maharashtra and others'**_ [(1977) 1 SCC 133] and _**'Hukam Chand Shyam Lal v. Union of India'**_ [(1976) 2 SCC 128] and canvassed for the proposition that whenever an urgency clause or emergency clause is invoked by a statutory authority, it is implicit in the rule itself that, in order to invoke the said provision, sufficient reasons should be there, which should also be reflected in the order passed. Except the judgment in _**'Hukam Chand Shyam Lal**_ ' ( _supra_ ), all other judgments were rendered by the apex court in respect of the emergency clauses invoked under the Land Acquisition Act, 1894. Learned counsel has also submitted that applying any parameters, Ext.P6 does not reflect any reason for invoking the urgency clause under Rule 130. **W.P.(C) No.19139 of 2017** 10 13. On the contrary, learned Senior Government Pleader submitted that there is no illegality in passing Ext.P6 order, since the same is passed on a report submitted by the route enquiry officer, and taking into account all the parameters required for consideration under Rule 130, orders are passed. It is also submitted that petitioners are not aggrieved persons entitled to approach this Court, invoking Article 226 of the Constitution of India. 14. Learned counsel appearing for the 4[th] respondent basically contended that the application of the 4[th] respondent was not boarded for consideration of the 1[st] respondent on 26.09.2016, for the reason that there were more than 450 items included in the agenda, especially due to the fact that the RTA has not met ever since 2015. So also, it is contended that, nowhere in the writ petition it is stated, how the permit granted to the 4[th] respondent interferes or overlaps the permit granted to the petitioner and the settlement of timings provided to the 2[nd] petitioner. Moreover, when the matter is placed for settlement of timings, the 2[nd] petitioner is vested with ample liberty to object the settlement of timings if in any manner it affects the operation of timings provided to the 2[nd] 11 **W.P.(C) No.19139 of 2017** petitioner or any other enroute operators. 15. Learned counsel has also submitted that, Ext.P6 order was passed bearing in mind the route enquiry report submitted by the officer concerned. Learned counsel has also invited my attention to the second limb of Rule 130, which enables any member on circulating papers to require that the matter shall be discussed at a meeting of the Authority. Therefore, according to the learned counsel for the 4[th] respondent, being not aggrieved, the _locus standi_ of the petitioners to approach this Court is hit by the law laid down by the Larger Bench judgment of this Court in _**'Ratheesh M.C.**_ ## _**and another v. Secretary, Regional Transport Authority,**_ _**Thrissur and another'**_ [2015 (1) KHC 69 : 2015 (1) KLT 248], and the learned counsel has invited my attention to paragraphs 26 and 27 of the said judgment, which read thus: _“26. In view of the foregoing discussion, we are of the opinion that S.90 cannot be interpreted in a manner to exclude or prohibit an application for revision at the instance of existing permit holder in all circumstances. We further hasten to add that whether a person, who is filing application can be said to be “a person aggrieved” is a question which has to be decided in the facts of each case. There may be cases where the permit holder cannot be said to be aggrieved, nor he can be said to have any right to move the application. But, then the cases under which the permit holder can file application or cannot file an application, cannot be enumerated, nor it is necessary_ 12 **W.P.(C) No.19139 of 2017** _for us to enumerate circumstances under which application can be filed or application cannot be filed. It depends on the facts of each case, which has to be examined at the wisdom of the Appellate Tribunal and we leave the matter there._ _27. In view of the foregoing discussions, we answer the reference in the following manner:_ _(1) The existing permit holder has no right to challenge grant of permit under the Act, 1988 on the sole ground that such grant shall adversely affect their commercial interest. For the above purpose, he cannot be treated to be “a person aggrieved” within the meaning of Section 90 of the Act, 1988._ _(2) The existing permit holder can be treated to be “aggrieved person” within the meaning of Section 90 of the Act, 1988 in the event his challenge to the grant of permit is on the ground of any violation of the provisions of the Act or Rules._ _(3) The proviso to R.212 gives a statutory right to the existing permit holder to be heard in the event timings of his service is sought to be changed. However, his right under the proviso to R.212 confines to challenge the variation of timings and the said right cannot be read as a right to challenge the very grant of permit._ _(4) The Full Bench judgment in Binu Chacko's case (supra) is explained and clarified in the above manner.”_ 16. Therefore, according to the counsel, if the petitioners are really aggrieved persons, they are provided with a remedy as per Sec.90 of the Motor Vehicles Act, 1988. On the contrary, learned counsel for the petitioners submitted that if a statutory provision is violated, the judgment in ' _**Ratheesh**_ ' ( _supra_ ) protects the interests of such persons. 13 **W.P.(C) No.19139 of 2017** According to the counsel, in such circumstances, enroute operators interests are also protected, and invited my attention to paragraph 23, which read thus: _“23. We, thus, conclude that although the existing permit holders have no right and cannot be held to be aggrieved person when they sought to challenge a grant of permit on the sole ground, that grant of permit shall prejudicially affect their commercial interest. But, in case where the grant is in a statutory violation, the right to file revision under S.90 or file Writ Petition or Writ Appeal cannot be denied.”_ 17. Therefore, according to the counsel, since the parameters provided under Rule 130 are not complied with by the 1[st] respondent, there is every right vested with the petitioners to approach this Court for violation of the statutory rules. 18. Having evaluated the contentions put forth by the respective parties across the Bar and perusing the pleadings and documents, the consideration of the issue revolves around Rule 130 of the KMV Rules, 1989. It is true, under Rule 130, there is an imperative condition prescribed with respect to the urgency, thus conferring power to circulate the papers to the members of the RTA. Therefore, the first aspect to be considered is whether from Ext.P6, the urgency can be discerned. It is stated therein that Ext.P1 judgment dated **W.P.(C) No.19139 of 2017** 14 08.08.2016 is perused. Thereafter, the route enquiry officer's report was considered and stated that there is overlapping of 1.18 kms. in the notified route which is less than 5% of the total route length of 26.7 Kms. Further, it is reported that the frequency of service and available time gap is 15 minutes between Kodungallur - Thandamkulam. It is also stated that there is no service to Podiyan Bazar-Edavilangu - 18 minutes, Edavilangu - Mullam Bazar-1 service, Bralam - Konathakunnu - 45 minutes and Konathakunnu - Maniyamkavu - 45 minutes. After discussing so, it is stated that, as per the data, the authority feels that the route portion S.N. Puram to Maniyamkavu need more trips to cater the travelling facility of passengers in this route portion. It is also stated that the distance between S.N. Puram to Maniyankavu is 12.1 kms. which covers 45 percentage of total route portion and the proposed time schedule suggested only two trips to Maniyankavu in the early morning and late night. Therefore, considering the above data and report of the enquiry officer, the fresh permit is granted subject to providing one additional trip in the peak hours, and the Secretary, RTA is instructed to make necessary arrangements to increase one additional trip **W.P.(C) No.19139 of 2017** 15 (up and down service) from S.N. Puram to Maniyankavu in peak hours, and also subject to production of suitable vehicle within one month from the date of communication of the decision, failing which, the permit will be treated as revoked. 19. In my considered opinion, the order reflects assignment of reasons by the 1[st] respondent. Now the question is whether under the circumstances, can it be treated as an urgency. In my considered opinion, what is contemplated under Rule 130 in respect of urgency is the need of the public on the route and it can be even other circumstances. But, it cannot be said that urgency is not reflected in the order. Moreover, from the facts and circumstances narrated in the writ petition, there is no specific and clear averment made by the petitioners with respect to their exact grievances in the issuance of the permit to the 4[th] respondent. Therefore, if at all the petitioners were aggrieved, especially having assigned reasons in Ext.P6 impugned order, there is every right conferred on the petitioners to approach the statutory authority by filing a revision under Sec.90 of Act, 1988. This is what is exactly stated by the Larger Bench judgment in ' _**Ratheesh**_ ' ( _supra_ ). 16 **W.P.(C) No.19139 of 2017** 20. Taking into account a conspectus of the issue and reckoning of law, I am of the considered opinion that there are no sufficient grounds made out by the petitioners warranting interference of this Court under Article 226 of the Constitution of India. Moreover, the judgments cited _supra_ by the learned counsel for the petitioners mostly dealt with invocation of the emergency clause under the Land Acquisition Act, except in the last case referred, which is in respect of invocation of emergency power under the Telegraph Act for disconnection of supply. On a reading of the afore-quoted judgments, it is clear that while invoking such emergency clause, it clearly affects the parties and their rights and interests. Therefore, it was under the said circumstances, the apex court held that while invoking the emergency clause, reasons shall be assigned so as to enable the affected party to know the circumstances under which his rights and interests are infracted. As I have pointed out earlier, here is a case, nowhere in the writ petition, there is a specific plea with respect to the nature of grievances of the petitioners so far as the permit granted to the 4[th] respondent is concerned. Therefore, I find force in the contention advanced by learned counsel for the 4[th] respondent 17 **W.P.(C) No.19139 of 2017** that the petitioners are vested with sufficient liberty to object to the settlement of timings at the time when such conferences are convened. 21. Upshot of the above discussion is that, petitioners have failed to make out any case of arbitrariness, illegality or unfairness warranting interference of this court exercising the power of judicial review. The writ petition fails, accordingly it is dismissed, however, leaving open the liberty to raise objections in appropriately constituted proceedings. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/01.07.2017