V.S. Sahesh v. Regional Transport Authority, Thrissur, The Secretary Regional Transport Authority, Thrissur, M.K. Rajan and Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938** **WP(C).No. 8006 of 2016 (A) ---------------------------** **PETITIONER:** - **-----------** **V.S SAHESH, S/O.SATHYAN, VAZHINADAKKAL HOUSE, P.O.VADANAPPALLY.** ## **BY ADVS.SRI.P.DEEPAK** ## **P.RAMACHANDRAN, ADVOCATE COMMISSIONER** **RESPONDENT(S):** **--------------** **1. THE REGIONAL TRANSPORT AUTHORITY, THRISSUR, REPRESENTED BY ITS SECRETARY, CIVIL STATION, THRISSUR - 680 002.** **2. THE SECRETARY REGIONAL TRANSPORT AUTHORITY, THRISSUR - 680 002.** **3. M.K.RAJAN, S/O.KARUNAKARAN, MOORKKATTIL HOUSE, POLOOKKARA, ERAVIMANGALAM.P.O., THRISSUR-680 751.** **4. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY CHAIRMAN & MANAGING DIRECTOR, TRANSPORT BHAVAN, PATTAM, THIRUVANANTHAPURAM-695 001.** - **R1 & R2 BY SENIOR GOVT. PLEADER SMT.C.S.SHEEJA R3 BY ADV. SRI.K.V.GOPINATHAN NAIR R4 BY ADV. SRI.P.C.CHACKO, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-09-2016 ALONG WITH WPC.9965/2016 & CONNECTED CASES, THE COURT ON 09-09-2016 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 8006 of 2016 (A) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-----------------------** - **P1A TRUE COPY OF THE REGULAR PERMIT ISSUED TO THE PETITIONER ON THE ROUTE ANAPUZHA-THRISSUR.** - **P2A TRUE COPY OF THE APPLICATION FOR REGULAR PERMIT DATED 24.12.2014 PUT IN BY THE 3RD RESPONDENT.** - **P3TRUE COPY OF THE APPROVED SCHEME DATED 14.07.2009.** - **P4TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 12.03.2015.** - **P5A TRUE COPY OF THE REPRESENTATION DATED 29.06.2015 PUT IN BY THE 3RD RESPONDENT.** - **P6A TRUE COPY OF THE REPORT OF THE MVI, THRISSUR DATED 09.07.2015.** - **P7TRUE COPY OF THE ROUTE DATA PREPARED BY THE RTA, THRISSUR IN CONNECTION WITH THE IMPLEMENTATION OF D3 CIRCULAR.** - **P8A ROUGH SKETCH OF THE ROUTE FROM WEST FORT TO THRISSUR (SAKTHAN STAND).** - **P9A TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 3.10.2015.** - **P10- A TRUE COPY OF THE REPRESENTATION DATED 27.01.2016.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R3(A): TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C).NO.3455 OF 2015 DATED 4.2.2016.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **SHAJI P. CHALY, J.** -------------------------------------------------- **W.P.(C) Nos.8006, 9965, 12772, 13713, 28036 & 24004 of 2016 ----------------------------------------------Dated this the 9th day of September, 2016** ## **JUDGMENT** Captioned writ petitions are filed by the petitioners challenging the permits allegedly granted on the notified route to various stage carriage operators. Since the subject matter of the writ petitions are relatively connected, I heard them together and propose to dispose of by a common judgment. Facts and documents in W.P.(C) No.8006 of 2016 are relied on for the purpose of disposal of the writ petitions. 2. Petitioner is a stage carriage operator in respect of vehicle bearing No.KL-47/5888, on the route Anapuzha - Thrissur via Thriprayar, evident from Ext.P1. Third respondent applied for regular permit to conduct stage carriage service on the route Thrissur- Thriprayar-Chavakkad. The route proposed by the 3[rd] respondent overlaps the route traversed by petitioner's stage carriage from Thrissur to Thriprayar. Ext.P2 application submitted by 3[rd] respondent was considered as item No.6 of the agenda in the meeting of the 1[st] respondent held on 12.03.2015. On the said day the petitioner herein and **W.P.(C) No.8006 of 2016 & conn. cases** 2 other en route operators including the K.S.R.T.C objected to the grant of permit to the 3[rd] respondent, on the ground that the proposed route overlaps the notified routes of the K.S.R.T.C over and above the permissible limits stipulated under Clause 5(c) of the approved scheme of nationalization dated 14.07.2009. It was _inter alia_ contended that a distance of more than 3 Kms. from West Fort to Thrissur overlaps the notified routes Trivandrum-Kannur and Kottayam-Kozhikode. 3. In the light of the objections, 1[st] respondent deferred consideration of the matter with a direction to the 2[nd] respondent to obtain a detailed report with respect to the overlapping of the route alleged by the en route operators, evident from Ext.P4. On 29.06.2015, 3[rd] respondent filed a representation before the 2[nd] respondent contending that the distance from West Fort to Thrissur is only 2 Kms. and the said sector does not traverse any notified route, evident from Ext.P5. On 09.07.2015, the field officer attached to the office of the 2[nd] respondent submitted a report stating that the sector West Fort - Thrissur does indeed overlaps the notified routes of the K.S.R.T.C. However, it was reported that the distance involved is only 2 Kms., evident from Ext.P6. **W.P.(C) No.8006 of 2016 & conn. cases** 3 4. The matter was thereafter considered by the 1[st] respondent in the meeting held on 03.10.2015, and the petitioner herein and other en route operators again appeared before the 1[st] respondent and contended that Ext.P6 report submitted by the field officer cannot be relied upon with respect to the actual distance of overlapping. It was also contended that the actual distance of overlapping from West Fort to Thrissur is 3.4 Kms. and this exceeds 5% of the length of the route proposed, which is only 42 Kms. According to the petitioner, Ext.P7 route data prepared by the 1[st] respondent shows that the distance traversed by a stage carriage between West Fort and Thrissur (Sakthan Stand) far exceeds 2 Kms., noted by the field officer in Ext.P6. However, without adverting to Ext.P7 data prepared by the officials of the Department and the objections raised by the petitioner and other en route operators, 1[st] respondent has taken a decision granting regular permit to the 3[rd] respondent relying on Ext.P6 report of the field officer, evident from Ext.P9. Thereafter, petitioner submitted Ext.P10 representation, being aggrieved by the action of the 1[st] respondent. It is thus challenging Ext.P9 permit granted to the 3[rd] respondent, this writ petition **W.P.(C) No.8006 of 2016 & conn. cases** 4 is filed. 5. When the matter came up for admission on 11.03.2016, this Court appointed an Advocate Commissioner for local inspection, and to ascertain the actual distance from West Fort to Thrissur (Sakthan Stand). Accordingly, the Advocate Commissioner has filed a report stating that the distance from Sakthan Stand to West Fort junction via Kokkala, Thrissur Railway junction and Sankara Iyer Road junction is 2.3 Kms. and the distance from West Fort junction to Sakthan stand via Kerala Varma College junction, Sankara Iyer Road junction and Thrissur Municipal Stand is 4.2 Kms. On the basis of the work memo submitted by the counsel for the petitioner, various other distances were measured between K.S.R.T.C Bus Stand to West Fort junction and Paramekkavu Temple junction to Sakthan Ring Road junction, which varies from 0.3 Kms. to 6.5 Kms. 6. Third respondent has filed a counter affidavit basically contending that the distance from Thrissur Sakthan Bus Stand to K.S.R.T.C Stand via Kokkala Junction is measured by the Advocate Commissioner, however, K.S.R.T.C vehicles are operating from Sakthan Bus Stand Junction **W.P.(C) No.8006 of 2016 & conn. cases** 5 through Mathrubhumi Round, Sakthan Inner Ring Road and reaching KSRTC Bus Stand. Therefore, the measurement made from Sakthan Bus Stand up to KSRTC Stand via Kokkala Junction cannot be considered or treated as notified sector or relating to the route granted to the 3[rd] respondent. Therefore, the portion from Sakthan Bus Stand up to West Fort Junction by which the KSRTC operates is only 1.4 Kms., and from West Fort Junction services towards Kanjani are deviating. Accordingly, it is submitted by 3[rd] respondent that the distance of 2.3 Kms. mentioned in the Commissioner report from West Fort Junction to Thrissur via Sakthan Bus Stand is not correct at all. That apart, it is also stated that all the vehicles were directed to operate through Kerala Varma College Junction, which is a traffic arrangement and therefore the same is not relevant and cannot be considered as overlapping in the light of the Division Bench judgment of this Court in W.A.No.1321 of 2013 dated 02.01.2014. It is also urged, in respect of Paramekkavu Temple Junction to Sakthan Inner Ring Road, it is because of the traffic arrangement, stage carriages are not permitted from Sankara Iyer Road Junction towards KSRTC Stand. That apart, it is contended that, KSRTC services **W.P.(C) No.8006 of 2016 & conn. cases** 6 coming from Palakkad and Mannuthy area is not operating through Paramekkavu Temple Junction whereas all those services are coming through Ikanda Warrier Road, Manorama Round, Mathrubhumi Round, Sakthan Inner Ring Road and reaching KSRTC Bus Stand. Therefore, the actual distance of the notified sector, along which KSRTC operates is only 1.4 Kms. It is thereupon submitted that the contention raised by the petitioner and the report of the Advocate Commissioner cannot be relied upon to arrive at a definite conclusion with respect to the distance from West Fort to the Sakthan Bus Stand. 7. Fourth respondent has also filed a statement, stating that the total route length of the permit granted to the 3[rd] respondent is 42 Kms. Out of which, 1.4 Kms. from KSRTC Bus Stand to West Fort junction, 1 km. from West Fort junction to Sankara Iyer Road Junction on the Ernakulam - Guruvayoor notified route and 1.3 Kms. from Paramekkavu Temple Junction to Sakthan Ring Road via Municipal Bus Stand objectionably overlap the Trivandrum - Kannur notified route, and as per Clause 5(c) of the notification, permit cannot be granted to the private operators, if the overlapping exceeds 5 **W.P.(C) No.8006 of 2016 & conn. cases** 7 Kms. or 5% of the route length whichever is less on the notified route. Therefore, it is contended that the permit granted is in violation of Sec.104 of the Motor Vehicles Act, and the dictum laid down by this Court in the judgment in _**'Kerala State Road Transport Corporation v. Regional Transport Authority**_ ' [2013 (2) KLT 280]. 8. W.P.(C) No.28036 of 2016 is filed by the K.S.R.T.C against the permit granted to the petitioner in the above specified writ petition. W.P.(C) No.12772 of 2016 is against permit granted to 4[th] respondent therein in respect of the same route and similar contentions are raised by the respondents in the said writ petition. W.P.(C) No.13713 of 2016 is also filed challenging the permit granted to the 4[th] respondent in W.P. (C) No.12772 of 2016. W.P.(C) No.9965 of 2016 is filed by the petitioner challenging the permit granted to the 4[th] respondent therein with respect to the very same route. W.P. (C) No.24004 of 2016 is filed by the 3[rd] respondent in W.P.(C) No.8006 of 2016, seeking direction to the respondent therein viz., Secretary Regional Transport Authority, Thrissur to issue temporary permit to the petitioner on the route in question in respect of his stage carriage bearing No.KL-08/V-634 on the **W.P.(C) No.8006 of 2016 & conn. cases** 8 basis of granted regular permit, which is under challenge in the other writ petitions. 9. Party respondents have filed similar counter affidavits, in two of the captioned writ petitions. There is no appearance for the party respondents in two of the writ petitions viz., W.P.(C) Nos.13713 & 12772 of 2016. 10. Heard learned counsel for the petitioners, learned Senior Government Pleader and the learned counsel appearing for the party respondents. Perused the documents on record and the pleadings put forth by the respective parties. 11. The question to be considered is whether the permits granted to the respective party respondents objectionably overlap the notified routes in question. As per the grant, it is evident, 1[st] respondent relied on the route enquiry report submitted by the field officer in which it is stated that even though the route in question is a notified route, the permits granted to the respective parties does not have objectionable overlapping. However, learned counsel for the petitioners contend that in view of the report of the Advocate Commissioner appointed by this Court, it can be seen that the permits granted have objectionable overlapping **W.P.(C) No.8006 of 2016 & conn. cases** 9 exceeding 5% of the route length, and therefore it is crystal clear, 1[st] respondent committed material irregularity by granting permits on the notified route. 12. _Per contra_ , learned counsel for the party respondents submitted that in order to identify the notified route, no manner of enquiry is conducted either by the 1[st] respondent or by the Advocate Commissioner deputed by this Court. It is further contended that, only after identifying the notified route in accordance with the schemes, it can be found out whether there is objectionable overlapping in the grant of permit. However, it is further urged by the learned counsel that, 1[st] respondent relied upon the report of the field officer, who stated that there is only overlapping of 2 Kms. from West Fort to Sakthan Bus Stand which is not objectionable. Therefore, according to the counsel, there is no manner of legal infirmity to the permits granted to the party respondents by the 1[st] respondent. From the facts, circumstances, and the case put forth by the respective parties, it is discernible that the entire issues raised by the petitioners in the writ petitions are based on factual circumstances, on the basis of which an authoritative conclusion cannot be arrived at by this Court. **W.P.(C) No.8006 of 2016 & conn. cases** 10 Therefore, the remedy available to the petitioners against the permits granted is the statutory remedy, by filing appropriate proceedings before the State Transport Appellate Tribunal, who can unearth the intricacies in the issue and finally arrive at a conclusion with respect to the route as per the schemes, as well as whether there is objectionable overlapping in the permits granted to the party respondents, by ascertaining from the records. 13. Even though several judgments were pointed out by learned counsel for the petitioners with respect to various aspects based on the factual circumstances stated above, I do not propose to make any reference to the same. I am of the considered opinion, that since the subject issue is based absolutely on facts, and the dispute with respect to the exact route through which the notified sector passes and the exact objectionable overlapping is allegedly subsisting, the parties are to be relegated to the State Transport Appellate Tribunal. 14. That apart, the report of the field officer differs from the report of the Advocate Commissioner and other study reports produced by the petitioners concerning the alleged objectionable overlapping, accordingly I am satisfied that the **W.P.(C) No.8006 of 2016 & conn. cases** 11 issue raised by the petitioners cannot be considered by this Court in a confused state of affairs. Petitioners could not also establish a clear cut case with respect to the objectionable overlapping alleged in the writ petitions. Therefore, I am unable to arrive at any definite conclusion with respect to the permits granted by the 1[st] respondent to the party respondents. Permits are granted by the 1[st] respondent relying on the route enquiry report submitted by the field officer, an official act, which can only be presumed to be done, at this stage of the proceedings, in accordance with law. 15. Therefore, the above writ petitions are disposed of, leaving open the liberty of the petitioners to approach the State Transport Appellate Tribunal. If the petitioners approach the Tribunal within three weeks from the date of receipt of a copy of this judgment, by instituting suitable proceedings, same shall be treated as proceedings instituted within time, and consider on merit in accordance with law. I make it clear, I have not expressed any opinion on merits of the matter and whatever observations made, and findings rendered, are only for the purpose of arriving at a conclusion in the writ petitions. **W.P.(C) No.8006 of 2016 & conn. cases** 12 16. Petitioners will also be at liberty to move any Interlocutory Applications before the Tribunal, which shall be considered by the Tribunal after providing opportunity of hearing to the respective parties and pass orders in accordance with law. 17. The petitioner in W.P.(C) No.24004 of 2016 who is the party respondent in W.P.(C) No.8006 of 2016 and W.P. (C) No.28036 of 2016 and other party respondents will also be at liberty to file suitable applications seeking any relief during the pendency of the proceedings. These writ petitions are accordingly disposed of with the above directions. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/07.09.2016