W.A. No. 1434 of 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WA.No. 1434 of 2011 --------------------AGAINST THE JUDGEMENT IN WPC.8094/2010 DATED 28/02/2011 .................... ## APPELLANT/3RD RESPONDENT: ---------------------------------- R. NIRANJAN S/O. RAJA, 4/67, MOTHI NIVAS, NANTHANKIZHIYA, ANAMARI, PALAKKAD. BY ADV. SRI.SAJEEV KUMAR K.GOPAL ## RESPONDENTS/APPELLANT& RESPONDENTS 1 & 2: -------------------------------------------------------- 1. THE MANAGING DIRECTOR, THE KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS CHIEF LAW OFFICER, SRI. RANJITH JOSEPH. 2. THE STATE TRANSPORT AUTHORITY, KERALAL THIRUVANANTHAPURAM-695 001. 3. THE SECRETARY, THE STATE TRANSPORT AUTHORITY, KERALA THIRUVANANTHAPURAM-695 001. R1 BY SRI. BABU JOSEPH KURUVATHAZHA, SC, KSRTC. R2 & R3 BY SENIOR GOVT. PLEADER, SMT. K. MEERA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2011, ALONG WITH W.A. Nos.1436 of 2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 1434, 1436, 1443, 1447 & 1500 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of November, 2011 ## **JUDGMENT** ## **Manjula Chellur, Ag. C.J.** By consent of both the parties, the above matters are heard and disposed of on merits. All the appeals are directed against the judgment dated 28.02.2011 by the learned Single Judge in W.P.(C) No.8093 of 2010 and connected cases. 2. It is not in dispute that the appellants herein are plying their carriages on the route Thrissur - Pollachi pursuant to the terms of agreement entered into between the State of Kerala and State of Tamil Nadu, way back in the year 1976. It is also not in dispute that all these private operators originally had sought permit for 'Limited Stop Ordinary' service. It is not in dispute that on this route, apart from the appellants herein, several other private operators, Kerala State Road Transport Corporation(KSRTC for short) and Tamil Nadu Transport Corporation are also operating. Change of Limited Stop Ordinary service into 'Fast Passenger' was sought by these operators which ## W.A. No. 1434 of 2011 and connected cases **==> picture [24 x 10] intentionally omitted <==** came to be dismissed by the State Transport Authority. Against the said order of dismissal, Ext.P1 revision came to be filed before the statutory authority, the State Transport Appellate Tribunal. The Tribunal accepted the contentions raised by the private bus operators and held that the State Transport Authority (STA for short) was not justified in rejecting the conversion of Limited Stop Ordinary service to Fast Passenger service. 3. Aggrieved by this, the Kerala State Road Transport Corporation approached the learned Single Judge with the writ petitions as stated above. The learned Single Judge after referring to several issues and decisions of this Court on earlier occasion on different questions, ultimately allowed the writ petitions on the ground that in the interest of public, the STA was justified in rejecting the conversion of the permit sought by the operators. Aggrieved by the same, the present appellants are before us. 4. According to the learned counsel for the appellants, there was no material as such placed before STA to accept that in the interest of public, such change of Limited Stop Ordinary ## W.A. No. 1434 of 2011 and connected cases **==> picture [24 x 10] intentionally omitted <==** service to Fast Passenger was not warranted. Therefore, there was no justification in rejecting the relief sought by the private operators. The other contention raised by the learned counsel for the appellants is that, the respondent Corporation being the rival operator on the very same route was not entitled to approach this Court invoking writ jurisdiction, therefore, the very entertainment of the writ petitions is against the Full Bench decision of this Court reported in **Binu Chacho v. R.T.A., Pathanamthitta** [ **2006(2) KLT 172** ]. 5. As against this, the learned Government Pleader contends that the only criterion for considering the conversion sought by the private operators, was whether such conversion was feasible having regard to the inconvenience and hardships that would be caused to the general public, especially the student population, who use the Ordinary Service for their regular transportation. So far as the stand of the Corporation, the STA was justified in rejecting the claim of the appellants that in the interest of the student population and the public, such conversion was not feasible. According to them, they are also operating two ## W.A. No. 1434 of 2011 and connected cases **==> picture [24 x 10] intentionally omitted <==** buses as ordinary service and eight buses as fast passengers. The learned counsel for the appellants in reply said that, if they are continued to operate the route as ordinary service, ultimately a day may come for closure of their business, as no long distance passenger would opt to travel in the carriages of these operators, therefore the Court has to take into consideration such facts as well. 6. According to him, Rule 2(ea) and Sub-section (3) of Section 80 of Motor Vehicles Act would apply. We have gone through the judgment in 2006(2) KLT 172(supra). We have also gone through the concerned provision of law; Sub-section (3) of Section 80 as well as the Rule 2(ea). He also brought to our notice Rule 260A of the Kerala Motor Vehicles Rules. On perusal of the orders of STA, we note that the KSRTC raised objection on the ground that the applicant was not a 'fleet owner', therefore he was not entitled to apply for the change of the nature of the permit, i.e., Limited Stop Ordinary service to Fast Passenger service. However, this objection of the KSRTC was rejected by the STA in view of judgment of this Court in W.A. No.1591 of W.A. No. 1434 of 2011 and connected cases **==> picture [24 x 10] intentionally omitted <==** 1997 dated 30.06.2003. The learned counsel for the appellants placed a copy of the unreported judgment for our perusal. 7. We have gone through the said judgment and so far as the provision at Rule 2(ea) regarding the fleet owner alone, seeking change of Ordinary service to Fast Passenger service, the Division Bench of this Court held the said provision as arbitrary. Though this judgment is of 2003, the State has not challenged the said judgment and the opinion of the Division Bench regarding the definition of fleet owner and its entitlement to seek change of permit and the nature of service as arbitrary, is final. However, the rejection of the claim of the appellants is not based on the said fact because though the respondent Corporation raised such ground, same was not taken into consideration in view of the above unreported judgment of W.A. No.1591 of 1997. The last paragraph of this judgment is relevant for the purpose of considering the controversy before us. The Division Bench proceeds to say as under: “It is free for the RTA to consider any application, if any made, strictly in accordance with the guideline regarding length of the route, oldage of the vehicle, rate of the fees, facilities to ## W.A. No. 1434 of 2011 and connected cases ## -:6:- be rendered to the public and the like.” 8. The last paragraph of the observation of the STA would indicate that the claim of the applicants was not justified only because of the inconvenience to the passengers, especially student population. According to the learned counsel for the appellants, there was no material placed before the authority to show how many student population use this ordinary service and how they would be affected. According to him, he had given details of the other private stage carriages which operate ordinary service on this route, therefore, even if the conversion sought by him is accorded, no inconvenience or hardship would be caused to the student population. 9. The learned Government Pleader brought to our notice all such details. There are about 89 schools between Thrissur and Pollachi route, the student population which use ordinary service of these operators are about 15,113 per day. Apart from the student population, different residents living in between Thrissur and Pollachi also have to use the transportation, if they have to travel from place to place. The ## W.A. No. 1434 of 2011 and connected cases **==> picture [24 x 10] intentionally omitted <==** very situation of villages in the State of Kerala would definitely indicate the necessity of public service for the citizens to move from place to place, if they have no private transportation of their own or they want to depend on the public transportation system. In that view of the matter, in the absence of any other transportation possible, the only transportation would be road transportation for the use of the public, whether it is student or otherwise. Keeping in mind the need of the public, the transportation system has to work to the satisfaction of the public. In that regard the transport authority has to think from every angle whenever an application is made for change of service. The transport authority also has to take into consideration the inconvenience or difficulties faced by the operators, passengers and the public. When the inconvenience of the operator is put forth, it is required on the part of the authority concerned to see whether such hardship or inconvenience pleaded by the operator is genuine and whether such conversion sought would be in the interest of the general public and who would be benefited by such conversion. W.A. No. 1434 of 2011 and connected cases -:8:- 10. In the present case, the main grievance of the operators is that they are not benefited by operating ordinary service and they are incurring losses, therefore it may result in loss to their transport business and they need conversion from ordinary service to fast service. The authority concerned took into consideration public requirement between Thrissur to Pollachi. The information placed before us by the Government Pleader indicates there are about 89 schools with student population of about 15,113 who take benefit out of the ordinary service. Therefore, when the authority is faced with an individual need and the public need, definitely, the individual need must yield to the public need. 11. Apart from the contention that the ordinary service is not financially beneficial to the appellants, there is no other serious grievance for them why they wanted to change ordinary service to that of fast passenger. We also note that several other operators are operating ordinary service on this route as indicated in the objection/statement of the very appellant before the learned Single Judge. When other ordinary ## W.A. No. 1434 of 2011 and connected cases **==> picture [24 x 10] intentionally omitted <==** service operators are having no grievance of this nature, we are at loss to understand how these appellant operators alone would sustain any loss in their transportation business. The transport authority has taken into consideration all relevant facts and the reasoning given by the authority for rejecting the conversion of the nature of the service is very clear and indicative that public interest was the only concern upon which such rejection was made. In that view of the matter, we are not able to accept the contention of the appellants that the authority did not have any material to take into consideration the fact situation. The transport authority being an authority to work out the nature of permits, number of routes, number of operators to be permitted to work on a route; definitely would know what is the situation on a particular route and how many passengers would be making use of the facility on a particular route. Therefore, just because that the order did not indicate several details, we cannot accept the contention of the appellants that no material was within the knowledge of the transport authority. W.A. No. 1434 of 2011 and connected cases **==> picture [30 x 10] intentionally omitted <==** 12. Then coming to the other contention whether the respondent Corporation could maintain the writ petitions, the learned Judge relies upon 2006(2) KLT 172(supra). On perusal of this decision, what we notice is the Corporation filed a revision petition and their Lordships in this case observed that the Revision Petition is not maintainable at the instance of the rival operator. In the present case, the rival operator is not pleading that they would suffer loss if such permission is granted to the private operators, i.e. the present appellants. They have only placed on record that public could be inconvenienced, if such permission is granted by the concerned authority. The authority has taken into consideration such need of public and has rejected the application. The Corporation has not approached this Court under the statute filing any revision, but it has approached this Court under Article 226 placing on record the difficulties and hardships caused to the public in general. In that view of the matter, the learned Single was justified in saying that there is no bar for the Corporation to bring to the notice of the Court, the difficulties that could be anticipated, if permission sought is ## W.A. No. 1434 of 2011 and connected cases **==> picture [30 x 10] intentionally omitted <==** granted. Therefore, we are of the opinion that the writ petitions were maintainable. 13. Then coming to the actual provision relevant for consideration, sub-section (3) of Section 80, refers to procedure in applying for and granting permits, which reads as under: “(3) An application to vary the conditions of any permit, other than a temporary permit, by the inclusions of a new route or routes or a new area or by altering the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit shall be treated as an application for the grant of a new permit.” Ultimately sub-section (3) emphasises on the fact that any such variation or extension within such limit shall be made only after the Transport Authorities satisfy that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route so as to vary or extend any part thereof. ## 14. The learned counsel for the appellants, when asked what exactly is the procedure seeking conversion of ## W.A. No. 1434 of 2011 and connected cases **==> picture [30 x 10] intentionally omitted <==** ordinary service to fast service, places reliance on the Statute contending that under sub-section (3) of Section 80, whenever a variance in the permit is sought, this is the only provision he could approach the concerned authority. Once he relies upon this provision of law, we expect the authority to proceed in accordance with the procedure contemplated under this provision. The sole criterion apart from looking to the requirement of the permit would be convenience of the public and this convenience of the public must be to the satisfaction of the authority, who is in charge of the variation of the permit. Apparently, the STA as stated above, has taken into consideration the convenience of the public as the main and sole reason. 15. So far as Rule 2(ea), fast passenger service, as already stated above, was not the ground on which the authority concerned denied change of nature of service sought by the appellants. 16. Coming to Rule 260A, we are of the opinion, to the facts of the present case, this Rule has no application W.A. No. 1434 of 2011 and connected cases **==> picture [30 x 10] intentionally omitted <==** regarding the controversy in question. Accordingly, we decline to say anything so far as this Rule is concerned. Viewed from any angle, in view of the above discussion, we are of the opinion, the appellants are not able to convince us that there is any scope of interference so far as the judgment of the learned Single Judge. Accordingly, the Writ Appeals are dismissed. **Manjula Chellur, Ag. Chief Justice.** **P.R.Ramachandra Menon, Judge.** ttb