IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WA.No. 866 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.34902/2008 Dated 19/01/2009 .................... APPELLANT/PETITIONER IN WPC ------------------------------- L.RADHIKA, 18/1700, K.R.R.A.NO.182, THAMALAM, POOJAPPURA P.O., TRIVANDRUM, PIN-695 005. BY ADV. SRI.A.INEES RESPONDENTS/ RESPONDENTS IN WPC --------------------------------- 1. THE REGIONAL TRANSPORT AUTHORITY, THIRUVANANTHAPURAM, REP.BY ITS SECRETARY. 2. SRI.N.S.PRADEEP, VAZHUVELI TIMBERS, THAMPANOOR, THIRUVANANTHAPURAM. ADV. SRI.K.V.GOPINATHAN NAIR FOR R2 SR.GOVT.PLEADER, SRI.BENNY GERVASIS FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------- W.A.No.866 OF 2009 ------------------------------- Dated this the 30th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner. She claimed that she is a new entrant in the field of stage carriage operation. She being a resident of Thiruvananthapuram city, she is interested in operating stage carriage services in the said city. 2. The second respondent herein was a stage carriage operator, who was operating on the route Poongumoodu - Neeramankara, which is admittedly a city route. The grantee of regular permit on the route has defaulted and therefore, the second respondent was operating on the strength of temporary permits, granted from time to time. While so, he submitted a regular permit application on the route on 4.12.2006. The said application was considered by the R.T.A., Thiruvananthapuram at its meeting held on 19.9.2007 and by Ext.P6 decision the R.T.A. rejected the same. The decision of the R.T.A. reads as follows: W.A. No.866 of 2009 - 2 - “This is a fresh permit. As per notification No.12951/07 dated 9-5-2007 new permit can only be granted to KSRTC on the notified area. Hence, rejected.” 3. The second respondent filed M.V.A.A. No.832 of 2007 before the State Transport Appellate Tribunal, Ernakulam, challenging Ext.P6 order. The said appeal was heard and allowed by the Tribunal, by Ext.P7 judgment dated 30.8.2008. The R.T.A. rejected the application for permit based on the finding that, in view of the notification issued by the Government under Section 99 of the Motor Vehicles Act, 1988, permit could be granted only to the K.S.R.T.C.. The Tribunal found that, the said notification will not cover grant of city permits and, therefore, allowed the appeal. It was also ordered to grant the permit to the second respondent, who was the appellant before the Tribunal. 4. Feeling aggrieved by the decision of the State Transport Appellate Tribunal, directing to straightaway grant the permit to the second respondent, the writ petition was filed. The learned Single Judge noticed that the appellant was W.A. No.866 of 2009 - 3 - nowhere in the field as far as the operation of the stage carriage on the aforementioned route is concerned and she did not file any objection when the matter came up before the R.T.A.. So, the learned Single Judge took the view that, at the instance of the appellant, it is not proper to interfere with Ext.P7. The learned Single Judge also found that the permit was rejected only on the ground that the same can be granted to the K.S.R.T.C. only. When that ground was found to be untenable, the Tribunal was justified in ordering to grant the permit straightaway to the second respondent. In view of the above findings, the writ petition was dismissed. Feeling aggrieved, this appeal is filed by the writ petitioner. 5. We heard Sri.A.Inees, the learned counsel for the appellant and Sri.K.V.Gopinathan Nair, the learned counsel for the second respondent. We also heard the learned Senior Government Pleader, Sri.Benny Gervasis. 6. The appellant would point out that second respondent's claim was never considered by the R.T.A. on merits. It was rejected at the threshold noticing a notification W.A. No.866 of 2009 - 4 - issued under Section 99 of the Motor Vehicles Act. Earlier, the R.T.A. in similar circumstances, have decided to invite applications to fill up the vacancies of regular permits in Thiruvananthapuram City, without straightaway allowing the applications made by individuals, on their own, for regular permits. In support of this submission, reference is made to Exts.P2 and P3 orders of the R.T.A., Thiruvananthapuram. The appellant submits that, if the R.T.A. found that the notification will not govern the grant of city permits, it would have adjourned the matter for invitation of the applications and in that event the appellant who was a new entrant could have also applied. So, it is pointed out that the direction of the Tribunal to straightaway grant the permit is illegal. The learned counsel also pointed out that the appellant being a new entrant, she was not able to know what was happening in the office of the R.T.A., and therefore, her failure to object to the application of the second respondent before the R.T.A. will not disentitle her from challenging an illegal decision of the State Transport Appellate Tribunal. So, the appellant prays that, the W.A. No.866 of 2009 - 5 - matter may be remitted to the R.T.A. for a fresh decision on the application, in the light of Section 71(3) of the Motor Vehicles Act. The second respondent, on the other hand, fully supported the findings of the learned Single Judge. Having regard to the conduct of the appellant, the learned Single Judge has rightly declined jurisdiction, it is pointed out. Further, when the only reason for rejection of his application was found to be faulty, the State Transport Appellate Tribunal was fully justified in ordering to grant the permit. The learned Senior Government Pleader submitted that the R.T.A. should be given a chance to consider the matter in accordance with law. 7. We considered the rival submissions made at the Bar. We also perused the documents and the materials on record. Going by Ext.P5, we notice that the 2nd respondent's application was not considered on merits by the Regional Transport Authority. The R.T.A proceeded on the footing that the notification issued under Section 99 will stand in the way of it considering the application. So, at the threshold, it was rejected. So, even if, the said finding is found to be not correct, W.A. No.866 of 2009 - 6 - there cannot be any automatic grant of the permit. The view to the contrary taken by the Tribunal, which was affirmed by the learned Judge, cannot be supported. The normal course open to the S.T.A.T., having regard to the facts of this case was to remit the application for fresh decision to the R.T.A in accordance with law. 8. Further, we notice that the number of permits in Trivandrum city is limited. If there is a vacancy, then only a permit can be granted. At the first instance also, the hundred permits were not granted on the basis of 'first come first serve' basis. There was a notification inviting applications and considering the relative merits of the applicants with reference to the parameters laid down in Section 71(3)(d), permits were granted. In view of the above position, whenever there is a vacancy and a permit has to be granted in that vacancy, normally, there should be fresh invitation of applications and consideration of the claims of various applicants. But, the learned counsel for the respondent relying on first proviso to Section 80(2) submitted that even where permits are limited, there can be submission of applications by persons desirous of W.A. No.866 of 2009 - 7 - getting permits and their consideration by the Regional Transport Authority. The said provision does not contemplate any notification. But, we notice that on earlier occasions, when there were vacancies, the R.T.A has decided to invite applications as evident from Exts.P2 and P3. In this case, whether such a procedure should be followed or not, is a matter for the R.T.A to decide, even assuming the said authority has power to grant permit without inviting applications. Further, the view taken by the learned Judge that the appellant has no business to object to the grant of permit is plainly untenable. She is a new entrant. When a new entrant comes, she may not have any previous connection with the operation of vehicles on any particular route. If applications were invited to fill the vacancy, she could also have applied. The possibility of the R.T.A deciding to invite applications, if the matter was remitted by the S.T.A.T, cannot be ruled out. In view of the above position, we find that the view taken by the learned Single Judge on that point is also unsupportable. W.A. No.866 of 2009 - 8 - 9. In the result, the judgment under appeal is reversed and Ext.P7 order of the S.T.A.T to the extent it orders to grant permit to the 2nd respondent is set aside. The permit granted to 2nd respondent being a dependent proceeding will no longer survive. The Regional Transport Authority shall consider the application of the 2nd respondent for regular permit, in accordance with law, after affording an opportunity of being heard to the appellant and other persons objecting to the grant of the permit. This the R.T.A shall do within two months from the date of production/receipt of a copy of this judgment. Till the R.T.A takes a decision as directed above, if the 2nd respondent is now operating on the route, he can continue to operate. The Writ Appeal is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps