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Hanuman Transport Co. Pvt. Ltd. Vs. R.T.A. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberW.P. Nos. 1793 of 1985 etc.
Judge
Reported inILR1985KAR4124; 1986(1)KarLJ330
ActsMotor Vehicles Act, 1939 - Sections 62(1), 47(3) and 48(3)
AppellantHanuman Transport Co. Pvt. Ltd.
RespondentR.T.A.
Appellant AdvocateM. Rangaswamy, Adv.
Respondent AdvocateAbdul Khader, HCGP for R-1, ;Ananda Shetty and ;M.R.V. Achar, Advs. for R-2
Excerpt:
.....regarding need remains to be met -- open to rto to consider application for temporary stage carriage permit whether filed earlier or subsequent to determination under section 47(3) -- application not to be considered if pursuant to determination under section 47(3) application/s for grant of stage carriage permit is/are pending on that day and received on that day and there is no bar to consider the same -- assigning of timings quasi - judicial function -- authority to consider proposals and counter proposals and assign without affecting priority of existing operators as far as possible.;no doubt, mere opening of a route under section 47(3) of the act, is not by itself sufficient to grant temporary permit. but, pursuant to the opening of a route, no application for grant..........of the second respondent in each one of these writ petitions.2. in w. p. no. 1793/1985 a temporary stage carriage permit granted in favour of the second respondent (smt. manorama a. kumar) on the route mangalore to nallur for the period 1-1-1985 to 30-4-1985, in subject no. 655/ 1984-85 by the r. t. a. mangalore is challenged. in w.p. 3602/1985 a temporary stage carriage permit granted in favour of the 2nd respondent (h. prasad ballal) on the route nallikatte to kemthur, for the period 1-2-1985 to 30-4-1985. in subject no. 729/1984-85, by the same r.t.a. is challenged. similarly, in w.p. 3596/1985. similarly another temporary stage carriage permit granted in favour of the 2nd respondent (k. jeevandhar adhikari) on the route karvase to udupi and udupi to karkala, for the period 1-2-1985.....
Judgment:
ORDER

K. A. Swami, J.

1. In all these three petitions, the petitioner is the same. It has challenged the temporary permits granted in favour of the second respondent in each one of these Writ Petitions.

2. In W. P. No. 1793/1985 a temporary stage carriage permit granted in favour of the second respondent (Smt. Manorama A. Kumar) on the route Mangalore to Nallur for the period 1-1-1985 to 30-4-1985, in subject No. 655/ 1984-85 by the R. T. A. Mangalore is challenged. In W.P. 3602/1985 a temporary stage carriage permit granted in favour of the 2nd respondent (H. Prasad Ballal) on the route Nallikatte to Kemthur, for the period 1-2-1985 to 30-4-1985. in subject No. 729/1984-85, by the same R.T.A. is challenged. Similarly, in W.P. 3596/1985. Similarly another temporary stage carriage permit granted in favour of the 2nd respondent (K. Jeevandhar Adhikari) on the route Karvase to Udupi and Udupi to Karkala, for the period 1-2-1985 to 30-5-1985 in subject No. 723/1984-85 by the same R.T.A. is challenged.

3. The applications for the grant of the temporary stage carriage permit concerned in W.Ps. 3596/1985 and 3602/1985 have been filed subsequent to the opening of the routesunder Section 47 (3) of the Motor Vehicles Act (hereinafter referred to as the 'Act'). The R.T.A. has on 17-11-1984 in subject No. 153/1984-85 opened the routes Karkala to Udupi and Udupi to Karkala. Similarly, on 17-11-1984, it has opened the routes Nallikatte to Kemthur, in Subject No. 156/1984-85. It is only in respect of the temporary stage carriage permit involved in W. P. No. 1793/1985 the application has been filed for grant of a temporary stage carriage permit prior to the determination made under Section 47 (3) of the Act, The determination has been made in Subject No. 180/1984-85 on 15 12-1984, for opening the route from Mangalore to Nellur. The application is filed on 5-12-1984 but it has been granted on 15-12-1984 subsequent to the opening of the route.

4. Shri M. Rangaswamy, Learned Counsel appearing for the petitioners, has advanced four contentions, which are as follows:

(1) On the date the application was preferred by the second respondent - Smt. Manorama AKumar in W. P. No. 1793/1985, there was no determination made under Section 47(3) of the Act : thereforethe application could not have been granted pursuant to the opening of the route.

(2) That a mere opening of a route is not sufficient to grant a temporary stage carriage permit.

(3) At any rate, it is submitted that the sequence in which the grant of temporary permit has taken place makes it abundantly clear that the R.T.A. has opened the routes only keeping an eye on the application filed by the second respondent for grant of temporary permit : therefore, in such a situation it cannot be held that the need so determined by opening the route under Section 47(3) of the Act falls under Section 62(1)(c) of the Act.

(4) That the timings assigned to all the three temporary permit affect the petitioner. Further there is no speaking order passedregarding assigning of timings. Hence, the timings assigned to all these three temporary stage carriage permits are liable to be quashed.

5. Contentions 1 and 2 can be dealt with together. No doubt on 5-12-1984 when the application was filed by the second respondent (Smt. Manorama A.Kumar) in W.P.1793/ 1985 for grant of a stage carriage permit on the route Mangalore to Nellur, there was no determination made under Section 47(3) of the Act and the route had not been opened. The application also did not disclose theparticular temporary need. The R.T.A. has opened the route by its resolution dated 15th December, 1985, passed in Subject No. 180/84-85. The validity of this resolution is not in question in this Writ Petition because the petitioner has challenged the same separately before the KSTAT under Section 64-A of the Act. Similarly, the determinations made in respect of the other three routes under Section 47(3) of the Act, are also not in challenge as the same are challenged before the KSTAT under Section 64A of the Act, and those Revision Petitions are pending. It is also stated that the KSTAT has passed an interim order directing the R.T.A. not to consider theapplication/s filed pursuant to the aforesaid determinations for grant of puccastage carriage permits. That being so, it is not just and appropriate to go into the validity of the resolutions passed by the R.T.A. opening the routes in question.

6.1. No doubt, mere opening of a route under Section47(3) of the Act, is not by itself sufficient to grant temporary permit. But, pursuant to the opening of a route, no application for grant of pucca stage carriage permit is received or even if received, the RTA is prevented from considering the same, because of the order passed by the superior authority or the pucca permit granted is cancelled, temporary stage carriage permit can be granted. In the instant case, on the date of granting temporary stage carriage permit in question, no application for grant of pucca stage carriage permit had bean received. Hence, it is not a case in which it can be said that the temporary stage carriage permits are granted on a mere opening of the routes.

6.2. Whether an application for grant of a temporary stage carriage permit is filed earlier or subsequent to the opening of the route, it does not make any difference as long as there is no application filed for grant of pucca stage carriage permit pursuant to such determination on the date of consideration of the application filed for grant of a temporary stage carriage permit. In such a situation, the need so determined, as long as it remains to be met by granting a pucca permit and for that purpose no applications are received, can very well be held to fall under the expression 'particular temporary need' thereby attracting Section 62(1)(c) of the Act. Therefore, in such a situation it is always open to the R.T.A. to consider the application whether filed earlier or subsequent to the determination made under Section 47(3) of the Act, for grant of temporary stage carriage permit. The Supreme Court in Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal(M.P) - v. - B. P. Upadhyaya, Regional Transport Authority, Raipur and others : [1965]3SCR786 has held that in a situation like the one existing in the instant case, Section 62(1)(1)(c) of the Act is attracted. Sri Rangaswamy, Learned Counsel for the petitioner relying upon the very decision submits that in the said decision the applications were received pursuant to the opening of the route and the permit had been granted, but the grant came to be revoked for non-production of the documents and the vehicle, therefore, it was under those circumstances, Learned Counsel submits the Supreme Court has held that the need so established on the opening of the route can be held to be a particular temporary need falling under Section 62(1)(c) of the Act. It appears to me that there is no difference between the case where pursuant to the determination made under Section 47(3) of the Act the applications are filed for grant of pucca permit and are considered, granted and subsequently cancelled and the case where no applications are received pursuant to the determination made under Section 47 (3) of the Act. In either case, the determination regarding need made under Section 47(3) of the Act remains to be met. It is in such situation the Supreme Court holds that the case falls under Section 62 (1) (c) of the Act. Therefore, it is not possible to hold that merely because the application under Section 62 of the Act is filed prior to the determination made under Section 47(3) of the Act, it cannot be considered pursuant to such determination. Of course, such an application cannot be considered if pursuant to thedetermination made under Section 47(3) of the Act, application/a for grant of stage carriage permit is/are either pending on that day or received on that day and there is no bar whatsoever to consider the same. Such a situation does not exist in the case on hand. Determination has been made under Section 47(3) of the Act, route is opened and no application is received or pending on the date the temporary permit is granted. For the reasons stated above, the contentions 1 and 2 are negatived.

7. Contention No. 3 : It is not necessary to decide this contention having regard to the fact that the revision petitions challenging the determinations in question, made under Section 47(3) of the Act, are pending before the K.S.T.A.T. However, it is necessary to say a word or two regarding the manner in which the R. T. A., Mangalore is exercising the power under Section 47(3) of the Act. The exercise of power by the R. T. A. in the facts andcircumstances of this case having regard to the sequence of events appears to be not proper. This Court has come across several cases from R.T.A., Mangalore, and it is noticed that it is exercising the power to open the route under Section 47(3) of the Act keeping an eye on the applications filed for grant of temporary stage carriage permits. There are severalroutes which have been opened under the aforesaid resolutions without conforming to law. Only because 1 or 2 kms. are added to the existing route a new route is opened even though several services exist on the routes, without taking into consideration the number of existing services and the adequacy or otherwise of them. In such a situation, it is always open to the R.T.A, to issue a direction under Section 48(3) (xxi) of the Act. As far as the routes in Mangalore District are concerned, especially from Mangalore to Byndoor, Mangalore to Padubidri and Mangalore to Karkal, Belmon, Padubidri, there are innumerable bus services. Therefore, it appears to mo that the R.T.A., Mangalore, is not discharging its statutory function properly in the matter of opening of new route/s under Section 47(3) of the Act. It appears to me that on some of the routes which have been opened, there may not even be possible to assign the timings as there are several buses. One of the relevant and valid considerations for opening a new route under Section 47(3 of the Act is as to whether the existing services on the route are adequate to meet the requirement of thetraveling public. The decision on this question is possible only if the R. T. A. gets the route survey conducted in detail and a comprehensive report is made. The resolution passed under Section 47(3) of the Act must advert to the number of services existing on the route and the timings assigned to them, volume of traffic, adequacy or otherwise of existing services, and whether there is still scope for opening new route/s. It is noticed that an operator in MangaloreDistrict tries to tag on a mile or two to the existing route in order to make it a new route. In such a case, it is not always necessary to open a new route, as a direction can be issued to the existing operators under Section 48(3) (xxi) of the Act to cover that portion which is added to the proposed new route. Further, the need in respect of such virgin portion of the route can also be met by granting variationof conditions of the permit by extending the route. Of course, even after taking into consideration all these aspects, still the R..T.A. is of the view that there is a need tointroduce a new service, it must do so, but before opening the route it shall take into consideration the aforesaid factors among others, which are necessary for opening a new route.

8. Now what remains is only the contention No. 4 relating to timings. On this aspect of the matter, there isno dispute among the parties that the timings assigned affect the petitioner and other operators,In addition to this, no reasons are given by the Secretary, R.T.A. for assigning the timings. This Court has held that the assigning of timing is as much aquasi judicial function as the granting of the permit and the authority is required to consider theproposals and counter proposals regarding the timings and assign the timings in such a manner that as far as possible the priority of the existing operators is not affected.

9. For the reasons stated above, these Writ Petitions are allowed in part. The timings assigned to all the three temporary permits in question are hereby quashed. The Secretary, R. T. A, is directed to assign the timings afresh within two weeks from the date of receipt of this order. Until then, the grantees are permitted to operate on the existing timings.


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