IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY,THE2D DAY OF JANUARY201412TH POUSHA, 1935 WA.No. 1321 of 2013 () IN WP(C).4435/2011 ------------------------------------------------------------- AGAINST THE JUDGMENT
IN WP(C) 4435/2011 of HIGH COURT OF KERALA DATED1607-2013 APPELLANT/3RD RESPONDENT IN THE WPC : ----------------------------------------------------------------- PRAMOD KUMAR SRIVILAS, WEST VELIYATHUNAD ALANGAD P.O.,PIN - 683 511. BY ADV. SRI.K.V.GOPINATHAN NAIR RESPONDENTS/PETITIONER AND RESPONDENTS12 & 4 IN WP(C): ------------------------------------------------------------------------------------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM- 23.
2. THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM REPRESENTED BY ITS SECRETARY,PIN - 682 030.
3. THE SECRETARY, REGIONAL TRANSPORTAUTHORITY, ERNAKULAM, PIN - 682 030.
4. THE STATETRANSPORTAPPELLATETRIBUNAL, ERNAKULAM, PIN - 682 016. R1 BYADV.SRI. P.C.CHACKO R1 BYADV.SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC R2 TO4BY GOVERNMENT PLEADER SRI. C.R. SYAMKUMAR ADVOCATE COMMISSIONER BY ADV. JEEVAN MATHEW MANAYANI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON0201-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 1321 of 2013 APPENDIX PETITIONER'S EXHIBITS: ------------------------------------ ANNEXURE A1 - COPY OF THE JUDGMENT
OF THE STATE TRANSPORTAPPELLATE TRIBUNAL IN M.V.A.A. NO.474/2009 DATED1912.2009. ANNEXURE A2 - COPY OF THE CERTIFICATEALONG WITH THE CERTIFICATE ISSUED BY THE ASSISTANT ENGINEER, NATIONAL HIGHWAY SUB DIVISION, ALUVA, DATED74.2010 ANNEXURE A3 - COPY OF THE REGULAR PERMIT ISSUED TO THE APPELLANT VALID UP TO1910.2017. RESPONDENTS' EXHIBITS ------------------------------------- NIL // TRUE COPY // sou. C.R. K. M. JOSEPH & A. HARIPRASAD, JJ.
=.=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=.= W. A. No. 1321 of 2013 =.=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=.= Dated this the 2nd day of January, 2014 JUDGMENT
K. M. JOSEPH, J.
Appellant is the 3rd respondent in the writ petition. An application was filed by him for regular permit to operate service on the route Ernakulam High Court Junction - Manjapra which, according to him, has a distance of 59.5 k.ms. The said application was rejected by the 2nd respondent Regional Transport Authority, Ernakulam vide Ext.P1 decision stating that as per clause 5(c) of the approved notification G.O.(P) No.42/Tran/09 dated 14/7/2009 the private stage carriages are permitted to overlap on the notified routes by 5% of their route length or 5 k.m. whichever is less and in this case the route length is 59.5 k.m. and hence the overlap exceeds the permissible WA1321/13 2 limit. Against the said decision, the appellant filed appeal before the State Transport Appellate Tribunal, Ernakulam. The Tribunal by Ext.P2 allowed the appeal and directed the 2nd respondent to grant fresh regular permit to the appellant as applied for, subject to settlement of timings. The writ petition was filed by the Corporation challenging Ext.P2 and for interdicting the operation of stage carriage service by the appellant on the route. The said writ petition was heard along with other writ petitions and the learned Single Judge allowed the writ petition. Being aggrieved by the above, the appellant has approached this Court.
2. We heard the learned counsel for the appellant, learned counsel for the Corporation and the learned Government Pleader.
3. The learned Single Judge allowed the writ petition filed by the Corporation setting aside Ext.P2 and ordered that the permit if any granted to the appellant in terms of Ext.P2 order is liable to be cancelled. The learned Single Judge also observed as follows:- WA1321/13 3 "..This apparently is a question of fact and to decide whether there is an overlapping of the permissible distance or route is purely within the discretion of the transport authority. If the transport authority has found that there is overlapping, in the absence of any material to show that such finding is perverse, I do not think that it would be open for the appellate authority or this Court for that reason to interfere with such findings. The very purpose of a scheme being brought into force is to regulate the operation of stage carriages by providing efficient management of public transport system. If private operators are permitted to operate in notified routes overlooking the scheme, it will not only affect the interest of the State undertaking, it will also give room for private operators to avoid other routes which are not notified. Therefore, a strict interpretation of the scheme is required to be made by the Transport authorities, the Tribunal and the Courts while exercising jurisdiction interfering with the orders passed by the concerned transport authorities. Reference is also made to the judgment of the Supreme Court in U.P.State Road Transport Corporation v. WA1321/13 4 Omaditya Verma (2005(4) SCC424. It is held that once a scheme is notified it prohibits plying of private vehicle except as permitted by the Scheme. As matters stand now, a scheme is in operation and if the scheme provides for overlapping of a notified route for the purpose of intersection only to a limited extend, a strict interpretation of such a provision is required to be made. The tribunal or the court cannot grant any concession in that regard by stating that the overlapping is for the purpose of catering to a mofussil area or cannot form an opinion that it is not an objectionable overlapping though it exceeds the distance mentioned in the notification. Any distance which exceeds the permissible overlapping is objectionable. If the transport authorities have come to such a conclusion and has stated the actual distance of overlapping, in the absence of any other material it may not be possible for the court to take a different view." 4. The learned counsel for the appellant would point out that the route in this case is Ernakulam High Court Junction - Manjapra and it has a distance of 59.5 k.ms. WA1321/13 5 According to him, the overlapping comes to 2.7 k.ms. on the notified route and the same is less than 5% which is within the permissible limit.
5. In this case in fact an Advocate Commissioner was appointed. The Advocate Commissioner reported as follows: "10. The overlapping in NH-47 is 3400 meters (3.40 kms) from Angamaly to High Court Junction. Out of the above 3400 meters overlapping area of 600 meters is due to the installation of medians evident from the sketch of the respondents. With regard to the above 600 meters there is difference of opinion between the counsel for the Appellant and the 1st Respondent." 6. A statement was filed by the counsel for the appellant, relevant portion of which reads as follows: " In N.H. 47 Road for the convenience of traffic a median is provided at the middle of the road. When the service comes from North Parur immediately before Athani Junction the route diverts towards left in order to reach N.H.
47. From the entry to N.H. 47 the service comes to WA1321/13 6 KAMCO Junction which is 0.1 km. (100 meters). From there the vehicle divert through Mekkad and enter N.H. 47 at TELK Junction. From TELK Junction while proceeding to Angamaly the service divert from entrance of Private Bus Stand. The distance between TELK Junction and entrance of Private Bus Stand is 0.7 m. (700 meters). Thereafter the service comes to Private Bus Stand exit and proceeding to Angamaly Federal Bank Junction and divert to Manjapra. The distance on N.H. 47 from Private Bus Stand exist to Angamaly Federal Bank Junction is 1.6 km. (1600 meters). Therefore when the service proceeding from High Court Junction to Manjapra the overlapping on N.H. 47 is 2.4 kms. (2400 meters). When the service return from Manjapra it enter N.H. 47 Angamaly Federal Bank Junction. From there it comes to Private Bus Stand entry which the distance is 1.8 kms. (1800 meters). It enter in the Private Bus Stand and when it comes to exist there is no passage on the mediation to turn to right and the nearest passage is in front of School Junction and after reaching School Junction turn right and passes through Bus Stand entrance which the vehicle WA1321/13 7 already once reached and from there it proceeds 700 meters to TELK Junction. In other words the overlapping portion on N.H. 47 from Angamaly Federal Bank Junction to TELK junction is 1.89 KMS. + 0.7 KM. (2500 meters). From there it divert to Mekkad and enter in N.H. 47 at KAMCO Junction. From KAMCO Junction it proceeds to Athani Junction which the distance of 0.3 km. (300 meters) and from there it proceeds to North Parur and High Court Junction. In other words the overlapping portion on the notified route is from Angamaly Federal Bank Junction to TELK Junction and form KAMCO Junction to Athani ie. 2.5 kms. + 0.3 km. is 2.8 kms. (2800 meters). There is only one route Ernakulam - Thrissur and one road N.H. 47 and the median provided will not make two different route or two different roads. What is mentioned and important in the notification itself is that the overlapping portion on the notified route shall not exceed 5% of the route permitted or 5 kms. on the notified route and therefore the overlapping is 2.8 kms. perfectly within the permissible limit." 7. Going by the sketch of the Advocate Commissioner, WA1321/13 8 we find that the overlapping on the notified route is 2.4 kms. The length of the road is 59.5 k.ms. If that be so, the overlapping is less than 5% and therefore overlapping is within the permissible limit. We notice in this regard a decision of this Court reported in Kissan Roadways V. R.T.A. Malappuram, 1981 KLT689 This Court, inter alia, held as follows: "S.2 (28A) defines the word 'route' as meaning "a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another. The definition only says that such portion of a highway between two termini thereon which may be traversed by a motor vehicle is 'route', irrespective of whether that distance is traversed in one direction or in the opposite direction. Mark, the explanation to S.46 explains the expression "trip" for the purpose of Ss.48 and 57 as meaning "a single journey from one point to another" and goes on to explain that "every return journey shall be deemed to be a separate trip". This would indicate that the journey from point A to B is a trip and the return WA1321/13 9 journey from point B to A would be a separate trip on the same route. To construe otherwise would result in the confusion suggested by the learned counsel for the 4th respondent that the plying back of the bus from point B would be on a route for which no permit has been granted, the route being mentioned in the permit as from A to B. The route is the same as defined in S.2 (28A) namely that that portion of the highway specified as lying between two termini which may be traversed by a motor vehicle, be it that that motor vehicle plies in one direction in the opposite direction." 8. According to the learned counsel for the appellant, having regard to the definition of word "route", there is no violation of the terms of the scheme.
9. The word "route" is defined under section 2 (38) of the Motor Vehicles Act, 1988, which reads as follows: ""route" means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another." 10. Explanation to section 70 of the Motor Vehicles Act reads as follows:- WA1321/13 10 "For the purposes of this section, section 72, section 80 and section 102, "trip", means a single journey from one point to another, and every return journey shall be deemed to be separate trip." 11. If that be so, the exposition of the law by the learned Single Judge appears to be in consonance with the statutory provisions referred to above.
12. The learned Single Judge has proceeded to find that if the transport authority has found that there is overlapping, in the absence of any material to show that such finding is perverse, he does not think that it would be open for the appellate authority or this Court for that reason to interfere with such findings. The said findings fall in to two parts. Firstly, it is found that the Appellate Authority cannot interfere with the finding unless it is perverse and secondly, this Court (writ court) cannot interfere with such findings unless it is perverse.
13. Section 89 (1) of the Motor Vehicles Act reads as follows: WA1321/13 11 "89. Appeals.- (1) Any person - (a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or (b) aggrieved by the revocation suspension of the permit or by any variation of the conditions thereof, or (c) aggrieved by the refusal to transfer the permit under section 82, or (d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such counter-signature, or (e) aggrieved by the refusal of renewal of a permit, or (f) aggrieved by the refusal to grant permission under section 83, or (g) aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final." WA1321/13 12 14. We notice that in exercise of powers conferred under sections 21, 21J and 68 of the Motor Vehicles Act, 1939 the Kerala State Transport Appellate Tribunal Rules, 1988 have been made. They provide for presentation of appeals and revisions, registration of appeals and revisions, limitation, procedures for seeking stay or suspension of the impugned order or for any direction, impleading of additional parties and what is more production of additional documents and also ordering inspections. There is power of review conferred on the Tribunal. We take notice of the fact that the Tribunals are manned by judicial officers in the cadre of District Judges. We further notice the judgment of the learned Single Judge (Paripoornan, J.
as His Lordship then was) reported in Vasudevan V. R.T.A. Cannanore, 1984 KLT81(Case No.132). In the said decision the power of the appellate authority was considered and held as follows: "It is well-settled that the power of the Appellate Authority is co-extensive with that of the original authority--Regional Transport Authority. The appeal is a re-hearing and the WA1321/13 13 appellate power is as wide as the power vested in the original authority" 15. In such circumstances, we are of the view that the finding of the learned Single Judge that the appellate authority can interfere with the finding of the Regional Transport Authority only if it is perverse is unsustainable. An appeal is clearly a re-hearing of the matter and as held by the Single Judge above, the power of the Appellate Authority is co-extensive with that of the original authority. We also notice that there is power with the Appellate Authority to call for reports in relation to facts. Therefore, we see no reason to find that the power of the Appellate Authority is restricted or limited to cases where the finding of the original authority is perverse.
16. The learned counsel for the Corporation relies on a decision of a Division Bench of this Court in Managing Director, KSRTC, Tvm V. Secretary, Regional Transport Authority, Ernakulam and Others, 2013(3) KHC820 In the above decision the Division Bench held as follows:- " Once the scheme is in force and the WA1321/13 14 overlapping is permitted only to a certain extent, it is not possible for this Court to permit grant of temporary permits based on the proviso to Section 104 and permit overlapping beyond the terms of the scheme notified by the Government. The benefit of the proviso to Section 104 can be granted only in instances where there is no scheme and where no permits have been issued in such route. The proviso to Section 104 cannot have any independent application and it is subject to the scheme framed by the Government in respect of nationalised routes. Such being the situation we are of the view that the learned Single Judge has not applied the provisions of the scheme to the facts and circumstances of the case. Hence the authorities were justified in rejecting the application for temporary permit. Therefore the judgments of the learned Single Judge is liable to be set aside and we hold that the right to apply for temporary permits under the proviso to Section 104 of the Motor Vehicles Act will be subject to the restrictions imposed under clause 5(c) of Ext.P2 (a) scheme. Clause 4 of the scheme does not give any special advantage to the petitioners. It is always subject to clause 5(c)." WA1321/13 15 17. We are prima facie unable to subscribe to the view taken with respect to the purport of the proviso. The authority has the power to grant temporary permit notwithstanding the scheme and in effect against the terms of the scheme. The only requirement is that the conditions in the proviso must be satisfied. However, for the purpose of deciding this case it is not necessary for us to go further and hence, we do not refer the matter for consideration by a larger Bench.
18. The offshoot of the above discussion would be the decision of the learned Single Judge in the writ petition leading to quashing of Ext.P2 order of the Appellate Tribunal, it does not appear to be sustainable.
19. We must at this juncture however refer to another argument raised by the learned counsel for the Corporation. According to him, apart from violation of the scheme, which is considered by the Regional Transport Authority, there is yet another scheme in operation. The said scheme is Aluva- Vadakkumpuram Via Parur Naluvazhi. According to him, the WA1321/13 16 permit granted to the appellant involves violation of the said scheme in so far as the scheme being a complete exclusion scheme, in the permit granted to the appellant the route passes through 1.5 k.ms. of the said notified route. It is pointed out that this contention was in fact taken in the writ petition also, but it was not considered. According to him, therefore, even if this Court allows the appeal on the basis of the definition of the word "route", in fact in the facts of the case still the Corporation is entitled to relief.
20. According to the learned counsel for the appellant, on the other hand, the scheme is not implemented at all. The scheme which was framed in the year 1965, nearly 5 decades back. He would further point out that large numbers of persons are plying on the parts of that route. The Corporation has not challenged the same. To that, the answer of the learned counsel for the Corporation is that now they have started to challenge the same.
21. We directed the learned Government Pleader to ascertain how many persons are operating on the route WA1321/13 17 Aluva-Vadakkumpuram. Learned Government Pleader, on instructions, submits that the exact number cannot be ascertained and at least 47 operators are making use of the parts of the nationalized route.
22. Learned counsel for the appellant would point out that when the Regional Transport Authority passed Ext.P1 order, he did not take into account the complete exclusion scheme and that it was not treated as objectionable. Going by Ext.P1 also, no objection is seen raised in regard to violation of the Aluva-Vadakkumpuram scheme. He would submit that the Corporation cannot pick and choose and discriminate between persons who are similarly placed. In support of his contention, he relies on a decision of the Apex Court reported in Vishundas Hundumal, etc. V. The State of Madhya Pradesh and others, AIR1981SC1636 23. One of the suggestions made by the learned counsel for the appellant is that at any rate this is a matter which can engage the attention of the Regional Transport Authority in exercise of the powers under section 103 of the WA1321/13 18 Motor Vehicles Act. Section 103 (2) of the Act reads as follows: "(2) For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the State Transport Authority or, as the case may be, the Regional Transport Authority concerned may, by order,- (a) refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending; (b) cancel any existing permit; (c) modify the terms of any existing permit so as to- (i) render the permit ineffective beyond a specified date; (ii) reduce the number of vehicles authorised to be used under the permit; (iii) Curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route." (emphasis supplied).
24. Learned counsel for the Corporation however pointed out that the said power would not extend to either cancelling or modifying the terms of the permit issued in WA1321/13 19 favour of the appellant and the power is given to cancel or modify permits which existed when the scheme was framed.
25. We are in agreement with the contention of the learned counsel for the Corporation that the power under section 103 to cancel an existing permit or to modify the term of the existing permit will not extend to cancelling or modifying a permit which was granted after the scheme has come into effect. Once the scheme is brought into play under section 103(2)(a) of the Motor Vehicles Act, the authority is expected to refuse to entertain an application for the grant of any permit which goes against the scheme as may be pending.
26. In this regard, we are fortified by the provisions contained under section 99(2) of the Motor Vehicles Act, which reads as follows: "Notwithstanding anything contained in sub- section(1), when a proposal is published under that sub-section, then from the date of publication of such proposal, no permit shall be granted to any person, except a temporary permit during the pendency of the proposal and WA1321/13 20 such temporary permit shall be valid only for a period of one year from the date of its issue or till the date of final publication of the scheme under section 100, whichever is earlier," 27. Section 104 of the Motor Vehicles Act reads as follows:- "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 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 permit 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 WA1321/13 21 the State Transport undertaking in respect of that area or route." 28. Once the approved scheme comes into play, no permit can be granted by the authority contrary to the terms of the approved scheme. If in any case violating the scheme permit is granted, there is no power under section 103 of the Motor Vehicles Act to either cancel or modify the same. However, other remedies are available.
29. In view of the above discussion, we are of the view that the judgment of the learned Single Judge setting aside Ext.P2 cannot be sustained. At the same time contention is seen taken by the Corporation regarding the violation of the Aluva-Vadakkumpuram approved scheme in the grant of permit to the appellant. This question is to be decided by the competent authority. The question was not considered or decided by the Regional Transport Authority. It was also not gone into by the Appellate Authority. It is raised before the learned Single Judge. The learned Single Judge has not ruled on the said aspect but it is pressed before us in the appeal. WA1321/13 22 30. The learned counsel for the appellant would point out that in case if the court is inclined to remit the matter back to the Regional Transport Authority and it finds in favour of the Corporation that there is violation of the Aluva- Vadakkumpuram route, under section 72 of the Motor Vehicles Act it is open to the appellant to seek modification of the route avoiding the objectionable portion. According to the learned counsel for the Corporation, such an exercise can be undertaken only on the strength of fresh application.
31. In such circumstances, the appeal is allowed as follows: The judgment of the learned Single Judge in W. P. (C) No.4435/2011 is set aside. Ext.P2 order is restored, but in the circumstances of the case, we direct the 2nd respondent Regional Transport Authority, Ernakulam to consider the objection of the Corporation to the grant of the permit to the appellant for the route in question on the ground that it is violative of the Aluva-Vadakkumpuram notified scheme. This will be done by the 2nd respondent with notice to the WA1321/13 23 appellant and Corporation. In case the decision is against the appellant, while we do not wish to pronounce on the manner of doing the same, we reserve freedom to appellant to seek remedy available in law for modification. We further observe that we would expect the Corporation being a public sector unit, to act fairly and it would raise and pursue similar objections in respect of similar operators. Sd/- K. M. JOSEPH, JUDGE. Sd/- A. HARIPRASAD, JUDGE. nkm. // True copy //