IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 WP(C).No. 26320 of 2010(L) -------------------------------------- PETITIONER(S): ---------------------- MOHAMMEDALI, S/O. KUNHALAN, MADANPATH HOUSE, MARAKKARA, KADAMPUZHA. BY ADV. SRI.P.DEEPAK RESPONDENT(S): ------------------------ THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, MALAPPURAM-676505. BY GOVERNMENT PLEADER SRI. K.C.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2010, ALONG WITH WPC NO. 26333 OF 2010, WPC NO. 26376 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts “C.R.” C.T.RAVIKUMAR, J. ---------------------------------------------------------------- W.P(C)Nos.26320, 26333 & 26376 of 2010 ---------------------------------------------------------------- Dated 29th September, 2010 JUDGMENT In these writ petitions, a common question posed for consideration. The petitioners are existing stage carriage operators. They have applied for variation of permits and for that purpose they have submitted applications under Section 80(3) of the Motor Vehicles Act, 1988 (for short `the Act'). Admittedly, in all these cases variation of permits were granted by the Regional Transport Authority and obviously the grant was subject to settlement of timings. The grievance of the petitioners is that despite the grant of variation sought for by the Regional Transport Authority, the Secretary, Regional Transport Authority is refusing to endorse the same and thereby, they are disabled from operating with the varied conditions. 2. It is contended by the petitioners that when the Regional Transport Authority grants variation after considering an application under Section 80(3) of the Act, it will be beyond the scope of authority of the Secretary, Regional Transport Authority to refuse to endorse the same citing the reason that such endorsement could be made only after settlement of timings. In essence, the contention is that once the RTA grants the variation it leaves no room for exercise of discretion by the WP(C).No.26320/2010 & connected cases 2 Secretary, RTA and the latter is duty bound to endorse the variation without waiting for settlement of timings. To buttress the said contention, the petitioners placed reliance on a common judgment of this Court in O.P.Nos.10598, 10599 and 10600 of 1996 and also another common judgment in O.P.Nos.29200 and 30553 of 1999. 3. I have heard the learned counsel appearing for the petitioners as also the learned Government pleader. 4. The learned Government Pleader submitted that the challenge against the action of the Secretary, RTA is unsustainable in view of the decision in the common judgment in O.P.Nos.29200 and 30553 of 1999. When the RTA granted variation of permits subject to settlement of timings, in the light of Rule 131 of the Kerala Motor Vehicles Rules, 1989 (for short `the Rules'), the Secretary is bound to implement the said decision and for the purpose of giving effect to the decision of the RTA, he is bound to convene a conference to settle the timings, it is further submitted. 5. Section 80 of the Act in so far as it is relevant for the purpose of these cases reads thus:- “80.Procedure in applying for and granting permits:- xx xx (3) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion 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 WP(C).No.26320/2010 & connected cases 3 of a stage carriage permits 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: Provided that it shall not be necessary so to treat an application made by the holder of stage carriage permit who provides the only service on any route to increase the frequency of the service so provided without any increase in the number of vehicles Provided further that,- (i) in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometres; (ii) in the case of extension, the distance covered by extension shall not exceed twenty-four kilometres from the termini, and any such variation or extension within such limits shall be made only after the transport authority is satisfied 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 as so varied or extended or any part thereof. (4) Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub- section (1) of section 66 may, before such date as may be specified by it in this behalf, replace any permit granted by it before the said date by a fresh permit conforming to the provisions of section 72 or section 74 or section 76 or section 79, as the case may be, and the fresh permit shall be valid for the same route or routes or the same area for which the replaced permit was valid: Provided that no condition other than a condition which was already attached to the replaced permit or which could have been attached thereto under the law WP(C).No.26320/2010 & connected cases 4 in force when that permit was granted shall be attached to the fresh permit except with the consent in writing of the holder of the permit. (5) Notwithstanding anything contained in section 81, a permit issued under the provisions of sub-section (4) shall be effective without renewal for the remainder of the period during which the replaced permit would have been so effective.” (emphasis supplied) True that, going by section 80(2) of the Act a liberal policy is called for in the matter of granting permits and therefore, application for permit of any kind made at any time under the Act will not be ordinarily refused. A bare perusal of section 80(3) of the Act would reveal that certain applications to vary the conditions of permit shall be treated as an application for the grant of a new permit. Section 70 of the Act deals with the application for stage carriage permit. Section 70 reads thus:- “70. Application for stage carriage permit:- (1) An application for a permit in respect of a stage carriage (in this Chapter referred to as a stage carriage permit) or as a reserve stage carriage shall, as far as may be, contain the following particulars, namely:- (a) the route or routes or the area or areas to which the application relates; (b) the type and seating capacity of each such vehicle; (c) the minimum and maximum number of daily trips proposed to be provided and the time- table of the normal type.” WP(C).No.26320/2010 & connected cases 5 Rules 143 and 144 of the Rules prescribe the form of application for permits. Rule 147 of the Rules provides that the State or Regional Transport Authority granting a permit may attach to it any one or more of the conditions provided for in the Act or prescribed in the Rules. Rule 179 of the Rules deals with variation of permit conditions and Rule 212 of the Rules deals with the schedule of timings. Rule 212 of the Rules reads thus:- “212. Schedule of timings:- The State or Regional Transport Authority may from time to time- (a) by a general order prescribe a schedule of timings for stage carriages other than those belonging to State Transport Undertakings running on specified routes, or (b) by a special order prescribe a schedule of timings for each stage carriage other than that belonging to State Transport Undertaking. (2) The changes ordered by the Transport Authority in the timings of a service shall not be considered as variation of permit under sub-section (3) of section 80 of the Act. (3) The State Transport Authority or the Regional Transport Authority may, by resolution, delegate to its Secretary the powers conferred on it under this rule subject to any conditions that it may prescribe: Provided that the State or Regional Transport Authority shall not however vary the timings of a service without giving to the interested permit holders an opportunity to represent their case.” 6. The combined effect of the above mentioned rules would WP(C).No.26320/2010 & connected cases 6 make it incumbent on an applicant seeking variation of conditions of permit to furnish a proposed time schedule as well. The RTA has to take a decision as to whether the variation is to be granted as per the set of timings proposed by the applicant. If there is no mention in the decision of the RTA that the variation is granted subject to settlement of timings then it should be taken to mean that the RTA has granted the variation with the set of proposed timings. In other words, a decision has to be taken by the RTA while dealing with an application under section 80(3) of the Act whether it calls for settlement of timings and if so, whether the variation should be granted with the proposed timings or whether timings should be settled separately. When the RTA granted variation of permit subject to settlement of timings it should be understood that as per the RTA a relative spacing in time of the concerned stage carriage taking into account the scheduled timings of other stage carriages operating on the route is essential. In terms of Rule 212(3) of the Rules the Secretary, RTA also could exercise the power to prescribe a schedule of timings. Therefore, if the RTA granted variation subject to settlement of timings it can safely be understood that the RTA left the power to prescribe a schedule of timings even after granting the variation, with the Secretary, RTA. In that view of the matter Rule 131 of the Rules assumes relevance and it reads thus:- WP(C).No.26320/2010 & connected cases 7 “131. Executive Officer to give effect to decisions:- All decisions of the Regional Transport Authority shall be given effect to by the Secretary expeditiously.” Therefore, there cannot be any doubt that when variation of permit conditions is granted by the RTA, the Secretary, RTA is bound to endorse the same so as to give effect to the said decision of the RTA. But, when the variation was granted subject to the settlement of timings it casts a duty upon the Secretary, RTA to endorse the variation and also to settle the timings in respect of the said vehicle in such a manner to see that the said vehicle is able to operate with the varied conditions and also with the settled timings pursuant to the order of the RTA. There cannot be any doubt that once the variation is endorsed by the RTA in the permit it would enable the petitioners to operate with the proposed timings in which event it may adversely affect the existing operators and therefore, the condition put in by the RTA cannot be said to be unintentional decision or a decision without a specific purpose. In fact, it can only be taken as a decision consciously taken to obviate any possible grievances of the existing operators while implementing the varied conditions. Therefore, endorsing the varied conditions without settlement of timings and thereby enabling the applicant operator to operate with the varied conditions without settling the timings pursuant to the grant may adversely affect the rights of the existing operators and would thus go against the very WP(C).No.26320/2010 & connected cases 8 order of grant. In that view of the matter contra contentions of the petitioners cannot be countenanced. At the same time, I may hasten to add that whenever the RTA grants variation of permit conditions subject to settlement of timings, the Secretary, RTA has to expedite the process of settlement of timings and make all endeavour to settle the timings within the least possible time. Since variation of permit conditions is granted taking into account the public convenience delaying settlement of timings and disabling the operator to operate with the varied conditions at the earliest would be against the public interest. 7. As already noticed hereinbefore, the petitioners have relied on two common judgments viz., common judgment in O.P.Nos. 10598, 10599 and 10600 of 1996 and common judgment in O.P.Nos.29200 and 30553 of 1999. Paragraph 2 of the former judgment reads thus:- “2. Learned counsel for the petitioners submitted that there was no objection with regard to the timings when the matter was taken up before the Regional Transport Authority. But the Secretary has not so far issued orders, probably thinking that it can be issued only after the settlement of timings. Under Rule 131 of the Kerala Motor Vehicles Rules, Secretary has to give effect to the decisions of the Regional Transport Authority expeditiously.” It is thus evident that the contention was that there was no objection with regard to the timings when the matter was taken up before the WP(C).No.26320/2010 & connected cases 9 Regional Transport Authority and even then the Secretary, RTA was not giving effect to the orders. In the said circumstances, direction was issued to implement the orders of the RTA in the light of Rule 131 of the Rules. A bare perusal of the judgment would undoubtedly reveal the fact that the issue raised in these writ petitions has not been pointedly posed for consideration in those cases. 8. As regards the latter common judgment it would virtually go against the contentions of the petitioners. It is observed thereunder:- “There is no mention in Ext.P3 that decision was taken to grant regular permit subject to settlement of timings. In so far as there is no mention in the order that the grant of permit was subject to settlement of timings, it has to be understood that Ext.P3 is a decision taken by the Regional Transport Authority to grant permit on approving the set of timings proposed by the first respondent.” A close scrutiny of the latter common judgment would thus go to show that it virtually supports my view. 9. In all these cases, the variation was granted by the RTA for about three months back and I am of the view that there cannot be any justification for such a delay for convening of the time conference and to settle the timings. The learned Government Pleader submitted that the Secretary has already scheduled a time conference for the purpose of settlement of timings. In the said circumstances, there will be a direction to the respondent to settle the timings in respect of the WP(C).No.26320/2010 & connected cases 10 stage carriages belong to the petitioners for which variation has been granted by the RTA, in the next meeting itself as scheduled. All these writ petitions are disposed of accordingly. C.T.RAVIKUMAR Judge TKS