IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WA.No. 890 of 2009 --------- -------------------- AGAINST THE JUDGEMENT IN WPC.9234/2008 Dated 30/03/2009 .................... APPELLANT(S): 3RD RESPONDENT -------------------- SAJI THOMAS, PULLANAPPALLIL, S.H.MOUNT P.O., KOTTAYAM. BY ADV. SRI.M.A.FAYAZ RESPONDENT(S): PETITIONER ------------------------- 1. SHEEBA REJI, REJI BHAVAN, VELLOOR, PAMPADY, KOTTAYAM. 2. REGIONAL TRANSPORT AUTHORITY, KOTTAYAM, REPRESENTED BY SECRETARY. 3. SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOTTAYAM. R1 BY ADV. SRI.K.V.GOPINATHAN NAIR R2 AND R3 BY GOVT. PLEADER SRI. NOBLE MATHEW. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.S. GOPINATHAN, JJ. ------------------------------ W.A. No.890 of 2009 ------------------------------ Dated this, the 18th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the third respondent in the writ petition. The writ petition was filed by the first respondent herein, challenging Ext.P2 order of the Regional Transport Authority, Kottayam dated 9.3.2007 and Ext.P6 order of the State Transport Appellate Tribunal, dated 4.12.2007. The brief facts of the case are the following: The R.T.A., Kottayam by Ext.P1 decision dated 30.5.2006 granted a regular permit to the appellant on the route Pampady - Kottayam. According to the appellant, the copy of the said proceedings was never served on him and he went to the office of the R.T.A. and collected it in December 2006. The said fact is seriously disputed by the first respondent. The appellant moved the R.T.A. for extension of W.A. No.890 of 2009 - 2 - time for producing the current records. The said application was allowed by the R.T.A. by Ext.P2 decision dated 9.3.2007. According to him, it was communicated to him on 31.5.2007. He produced the current records on 12.6.2007 and got the permit issued. On the strength of the permit, he started operation. 2. The first respondent herein was operating stage carriages on various routes, some of which, overlapped the route of the appellant. So, he applied for certified copy of Ext.P2 and challenged the same by filing Ext.P3 revision before the S.T.A.T.. He also moved an application for condoning the delay of 40 days in filing the revision. The Tribunal, by Ext.P6 order dismissed the revision. It was held that there was no justification for condoning the delay. It was also held that the first respondent has no locus standi to challenge Ext.P2 order, in view of the decision of the Full Bench in Binu Chacko v. R.T.A., Pathanamthitta, 2006 (2) KLT 172. The first respondent, being aggrieved by Exts.P2 and P6 orders approached this Court by filing the writ petition, impugning those orders. According to W.A. No.890 of 2009 - 3 - him, since the current records were not produced within the time limit prescribed under Rule 159(2) of the Kerala Motor Vehicles Rules, the decision of the R.T.A. to grant the permit ceased to exist. Therefore, by granting extension of time, life cannot be breathed into a dead grant. Though he cannot challenge the grant of permit in favour of the appellant, he has locus standi to challenge the grant of extension of time allowed, contrary to law, it was submitted. Though the writ petition was resisted pointing out the decision in Binu Chacko's case (supra), it was allowed by the learned Single Judge upholding the contentions of the petitioner/first respondent. Exts.P2 and P6 orders were quashed and the matter was remitted to the R.T.A. Kottayam for a fresh consideration of the application of the appellant for extension of time, in accordance with law. The appellant was permitted to operate on the route till the R.T.A. took a decision as directed. Feeling aggrieved by the said judgment, this writ appeal is preferred by the appellant. 3. We heard Sri.M.A.Fayaz, the learned counsel for the appellant and Sri.K.V.Gopinathan Nair, the learned counsel W.A. No.890 of 2009 - 4 - for the first respondent. We also heard the learned Government Pleader for respondents 2 and 3, who made available to us the records pertaining to the case. 4. The learned counsel for the appellant submitted that none of the legal rights or legally protected interest of the first respondent is affected by Ext.P2 order. Therefore, he has no locus standi to maintain the writ petition in view of the Full Bench decision in Binu Chacko's case (supra). Special reference was made to paragraphs 25 and 27 of the said decision. The learned counsel for the first respondent on the other hand submitted that the Full Bench in Binu Chacko's case (supra) has stated that the locus standi of a rival operator is not restricted to challenge against time schedule only. The possibility of maintaining a revision by a rival operator on certain other grounds also cannot be ruled out. Learned counsel made special reference to paragraph 28 of the aforementioned decision. W.A. No.890 of 2009 - 5 - 5. We considered the rival submissions made at the Bar. Since both sides relied on the decision in Binu Chacko's case, we extract below the relevant portion of it for convenient reference. “25. S.71 of the Act postulates the R.T.A. to bear in mind only two aspects in considering applications for stage carriage permits: (i) R.T.A. shall have regard to the broad objects of the Act and (ii) must be satisfied that the time table furnished does not contravene the provisions of the Act relating to the speed at which vehicles may be driven. Jurisdiction vested in the STAT to examine the correctness of orders passed refusing permit, etc. under S.89 is an appellate power whereas the jurisdiction vested in the same Tribunal under S.90 to pass orders in respect of improper or illegal orders of STA and RTA is revisional. Appeal is available only to a person aggrieved by the refusal to grant a permit, or by any condition attached to a permit granted; the revocation of suspension of the permit, or any variation of the conditions thereof, the refusal to transfer the permit etc. any vehicle or by any other order which may be prescribed, but there is no right of appeal against the grant of a permit, W.A. No.890 of 2009 - 6 - renewal of a permit, etc. Corresponding provision in the old Act relating to right of appeal was S.64. One important legislative change which compels attention is the absence of provisions similar to S.64)(1)(f), (h)and (hh), obviously in tune with the liberalised policy which is the redeeming feature of the Act. The correlation between an application made to STAT by a person aggrieved and the jurisdiction of the STAT to exercise the revisional power under S.90 of the Act in respect of improper or illegal orders has to be borne in mind. S.90 does not confer power on the STAT to pass orders under that Section merely for the reason that the order of the STA or RTA is improper or illegal. The jurisdiction will be exercised only when an application is filed by a person aggrieved. To hold otherwise will be to render the words 'person aggrieved' in S.90 of the Act redundant and otiose. xxxx xxxx xxxx 27. Contentions raised at the instance of existing operators, even under the old Act were repelled by the Apex Court holding that “the fact that some others have also been enabled to obtain permits for running buses cannot constitute a violation of the appellants' rights under Art.19 of W.A. No.890 of 2009 - 7 - the Constitution and that the said provisions “were not intended to grant a kind of monopoly to a few bus operators to exclusion of other eligible persons. The Apex Court in Hans Raj Kehar v. State of U.P (AIR 1975 SC 389) held in categorical terms as follows: “No right is guaranteed to any private party by Art.19 of carrying on trade and business without competition from other eligible persons.” Following the dictum in Exp Sidebotham, re Sidebotham (1880) 14 Ch d 458) and the statement of law made in Nagar Rice and Flour Mills v. N.T.Gowda (1970) 1 SCC 575) the Apex Court in Jasbhai Motibhai Desai v. Roshan Kumar ((1976) 1 SCC 671) held as follows: “In sum, the appellant (a rival in trade) has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a person aggrieved and has no locus standi to challenge the grant of the no-objection certificate.” W.A. No.890 of 2009 - 8 - Citing the decision of the Apex Court in Jayaraj v. Commissioner of Excise (2000(3)KLT 820) it was contended by counsel for the petitioner that the Apex Court has taken notice of the expanded concept of locus standi and has adopted the liberal approach so as to protect public interest. He also contended that the said liberal view accords with the views expressed by the House of Lords in Arsenal Football Club Ltd. and those by the Court of Appeal in Cook v. Southend Borough Council (supra). We are of the view that the statement of law in Jayaraj v. Commissioner of Excise (2000(3) KLT 820) cannot be made applicable to fact situations arising under the Motor Vehicles Act. As rightly pointed out by the learned Judge in the Reference Order what is considered in the Jayaraj's case is a piece of law relatable to the privilege of vending liquor, whereas the matters relating to Motor Vehicles Act stand on a different footing. Though counsel for the petitioners would contend that having regard to the expanded concept of locus standi, the view expressed in Jayaraj's case may be preferred to that in Jasbhai Motibhai Desai's case, we are not inclined to agree to that proposition. It is very pertinent to note that the Apex Court in Mithilesh Garg placed reliance on the dictum in W.A. No.890 of 2009 - 9 - Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed (1976)1 SCC 671) and quoting paragraphs 47, 49, 50 and 51 of that judgment held that a rival in the business has no right to complain against the liberalised policy for grant of permits under the Act. It is true that what was decided in Mithilesh Garg was the constitutional validity of certain provisions of the Act and what has been completely taken away by the Act is the right to participate in the decision making process anterior to the grant of permit to a new entrant. However, the fact remains that the views expressed by the Apex Court in Mithilesh Garg throw light on the nature of grievance an existing operator is entitled to raise. It is a relevant criterion though not the sole test while invoking S.90 of the Act or Art.226 of the Constitution of India. 28. We are of the view that the existing operator cannot invoke the revisional jurisdiction on the sole ground that the grant of permit to the opposite party prejudicially affects his rights. It is not as though he can impeach each and every order of the RTA or STA alleging illegality or impropriety. He can challenge only those orders against which he can have a legal grievance. He cannot be a person aggrieved in respect of every action or decision of RTA or STA. There are W.A. No.890 of 2009 - 10 - grievances which would give rise to a cause of action exclusively for the passengers only or sometimes to a local authority and the like. If the existing operator is given the right to challenge the very grant of permit or renewal of permit on the ground that he is aggrieved by such grant, it will amount to resurrecting a right which he was entitled to avail only under the old Act. It will be illogical and irrational to interpret the expression “persons aggrieved” in S.90 of the Act in such a manner as to take away the right given to a new entrant at the pre-permit stage to have a permit under the Act without obstruction from those already in the business, the very moment he is granted or issued a permit. Under normal circumstances, grievance of the existing operator shall be confined to disputes relating to settlement of timings and cannot be entertained against the grant of permit or renewal of permit as such. We are unable to concur with the reasoning and the final conclusion arrived at by the learned Judges in D.L.Sadashiva Reddy v. P.Lala Sheriff (AIR 1999 Karnataka 5). We agree with the views expressed by the Division Bench in Girija Devi v. K.T.Mathew (1991(1) KLT 353) and in C.T.R.B.T. Co-op. Society's case that an existing operator will be a person aggrieved as far as settlement of timings is W.A. No.890 of 2009 - 11 - concerned. However, it may not be proper or expedient to restrict the scope of the words “persons aggrieved” to settlement of timings only, though under the scheme of the Act, existing operators may have in the normal course, legal grievance against settlement of timings only. We therefore, do not rule out any other grievance of a similar nature which would tilt the balance in favour of one operator and against another as a consequence of orders issued by R.T.A. or S.T.A. The applicant is required not only to establish that the order impugned suffers from illegality or impropriety of a substantial nature but also has to discharge the burden to satisfy the Tribunal that he has a legal grievance against that order, and therefore, is a person aggrieved. This exercise the STAT has to do by applying its mind to the facts and circumstances of each case and this implies that the Tribunal may not throw a revision petition overboard at the threshold.”. (emphasis supplied) 6. The Full Bench noticed that the right of the rival operator to challenge the grant of permit has been expressly excluded under Section 89 of the Motor Vehicles Act, 1988. W.A. No.890 of 2009 - 12 - The Full Bench also made a comparison with the parallel provision, Sections 64 of the Motor Vehicles Act, 1939. In the context of comparison of the said provisions, it was held that a person who cannot maintain an appeal cannot be allowed to enter the portals of the S.T.A.T. by invoking the revisional jurisdiction under Section 90 of the M.V.Act, 1988. A revision can be maintained, if only any of the legal rights or legally protected interest of the applicant is affected. The Full Bench followed the concept of 'person aggrieved' as explained by the Apex Court in Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed (1976)1 SCC 671). 7. In this case, between the grant of permit and the issuance of permit, according to the first respondent, the R.T.A. has committed an illegality. If the first respondent has no locus standi to challenge the grant, we think it is rational to hold that he has no locus standi to challenge an order between the grant and issuance of the permit. By the illegality, if any, committed by the R.T.A. in passing Ext.P2 order, none of the W.A. No.890 of 2009 - 13 - legal rights or legally protected interest of the first respondent is affected. The result of the decision contained in Ext.P2 is that, the appellant will start operation on the relevant route on the strength of a permit. Admittedly, the first respondent cannot challenge the grant of permit. He cannot be allowed to do that indirectly by entertaining his challenge against the extension of time granted to produce current records. The real grievance that can be canvassed by the first respondent is regarding the clash of timings of the appellant's services with the service of the first respondent on the route or allied routes. Even going by paragraph 28 of the Full Bench decision cited above, what is not ruled out is the possibility of an operator challenging other orders of the R.T.A., other than the orders fixing the time schedule, if he has any legal grievance against that order. He can have a legal grievance, if only his legal rights or legally protected interest are affected. In this case, we notice that none of the rights, stricto sensu, of the first respondent is affected by Ext.P2 order. Therefore, he has no right to maintain the revision petition. W.A. No.890 of 2009 - 14 - In the result, the writ appeal is allowed, the judgment under appeal is reversed and the writ petition is dismissed. But, it is clarified that, if the first respondent is having any grievance against the time schedule granted to the appellant, he will be free to challenge it before the State Transport Appellate Tribunal. In that event, we hope the same will not be dismissed on the technical ground of delay, as the first respondent was pursuing bona fide a remedy, which he thought would redress his grievance. Now the said remedy is finally rejected only today. So, the Tribunal shall consider the revision in accordance with law, if the first respondent moves the Tribunal within a reasonable time, say, within one month from today along with an application to condone delay. Sd/- K. Balakrishnan Nair, Judge. Sd/- P.S. Gopinathan, Judge. DK. (True copy)