IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 28386 of 2008(D) ----------------------------------------- PETITIONER(S): ------------------------- N.R. BABUDAS, S/O RAMAN NAIR, AGED 61 YEARS, RESIDNG AT NAMBIATH HOUSE, CHOTTANIKKARA P.O. BY ADV. SRI.P.DEEPAK RESPONDENT(S): --------------------------- 1. THE STATE TRASPORT APPELLATE TRIBUNAL, ERNAKULAM. 2. REGIONAL TRASPORT AUTHORITY, ERNAKULAM, REPRESENTED BY ITS SECRETARY. 3. SECRETARY, REGIONAL TRANSPORT AUTHORITY, ERNAKULAM. 4. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR,TRANSPORT BHAVAN, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. P.N.SANTHOSH ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28386/2008 D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMUNICATION DTD. 22/09/2008. EXT.P2: COPY OF THE PRELIMINARY SCHEME IN RELATION TO THE ERNAKULAM-MUVATTUPUZHA ROUTE DTD. 13/09/1960. EXT.P3: COPY OF THE APPROVED SCHEME DTD. 28/08/1961. EXT.P4: COPY OF THE TEMPORARY PERMIT VALID TILL 4/09/2008. EXT.P5: COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTD. 19/07/2008. EXT.P6: COPY OF THE MEMORANDUM OF APPEAL IN MVAA NO. 470 OF 2008. EXT.P7: COPY OF THE INTERIM ORDER DTD. 18/08/2008 IN M.P.NO.2026 OF 2008. EXT.P8: COPY OF THE TEMPORARY PERMIT VALID TILL 24/09/2008. EXT.P9: COPY OF THE JUDGMENT DTD. 10/09/2008 IN MVAA 470/2008. RESPONDENT'S EXHIBITS: EXT.R4(A): COPY OF THE ROUTE SKETCH. EXT.R4(B): COPY OF THE JUDGMENT IN W.A.N.1934/2004 DTD. 05/11/2004. /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ------------------------- W.P.(C).Nos.28386, 29810, 29824, 29984, 30004, 30042, 30049, 30075, 30235, 30241 & 30793 of 2008 ------------------------- Dated this the 21st day of October, 2008. JUDGMENT Similar issues arise for consideration in all these writ petitions. The questions of law that arise are also common. Pleadings are complete in W.P.(C)No.28386/08 and therefore, it is taken as the leading case. W.P.(C)No.28386/08: 2. The petitioner is a stage carriage operator, who has been operating on the route Vattappara-Ernakulam Kaloor via Peppathy, Mulamthuruthy, Chottanikkara, Thiruvankulam, Thripunithura, Vyttila & K.K.Road, on the strength of a temporary permit issued in that behalf under the proviso to Section 104 of the Motor Vehicles Act, 1988 {for short 'the New Act'}. 3. The route traversed by the petitioner touches Vyttila - Tripunithua - Chottanikkara - Mulanthuruthy and Peppathypara. The part of the route from Thripunithura-Thiruvankulam falling within the route of Vattapara-Muvattupuzha W.P.(C).NO.28386/08 & Con.cases :: 2 :: overlaps Ernakulam-Muvattupuzha trunk road. Ernakulam-Muvattupuzha road, as such, is a notified route within the meaning of Section (100 (3)} of the New Act. This route was originally proposed by the Kerala State Road Transport Corporation {for short 'the Corporation”}, as evidenced by Ext.P2 dated 13.9.1960 as contemplated by Section 68(c) of the Motor Vehicles Act, 1939 {for short "the Old Act"}. The route, as proposed in this regard and as evidenced by Ext.P2, was Ernakulam-Muvattupuzha with the State Transport bus station at Ernakulam as starting place and Muvattupuzha as a terminus. The intermediate places as proposed were Thripunithura, Thiruvankulam, Puthencruz and Valagom. The route length is 27.1 km. A maximum of 12 and a minimum of 8 stage carriages were to be operated in the said route. The notification of the route or the area, as the case may be, is function of the State Government and as per Ext.P3 approved scheme issued on 28.8.1961, the route or routes finally approved underwent a small change. The notified routes were not only as indicated in Annexure A, but also included all routes W.P.(C).NO.28386/08 & Con.cases :: 3 :: connecting or passing through any two or more intermediate points. The relevant portion of Ext.P3 reads as follows: "Area or route or routes in relation to which the scheme is proposed Routes as indicated in Annexure A and all routes connecting or passing through any two or more intermediate points of such routes." 4. As stated above, the petitioner has been operating on a temporary permit in the route Vattapara-Ernakulam since 1988. It is not disputed that a route, which traverses two or more intermediate points forming part of a notified route notified in that behalf under Section 100 of the New Act, cannot be serviced with a regular permit by any operator other than the State Transport Undertaking. It is, therefore, that the petitioner has, all along, applied for a Temporary Permit under the proviso to Section 104 of the New Act and such Temporary Permits have been granted from year to year. An application filed in this behalf for the re-issue of the Temporary Permit to operate in continuation of Ext.P4, which was valid only upto 4.9.2008, was considered by the Regional Transport Authority and rejected on the ground that the State Transport W.P.(C).NO.28386/08 & Con.cases :: 4 :: Undertaking has maintained as a notified route, the stretch between Ernakulam and Muvattupuzha and therefore, no other stage carriage operator can apply for a Temporary Permit, either in the notified route, but also any route which overlaps the notified route. Finding that the route for which the petitioner has sought for re-issue passes through intermediate points Thiruvankulam – Thripunithura, the Regional Transport Authority, Ernakulam, rejected the said application. Petitioner preferred an appeal as Ext.P6. But the same was also rejected by the State Transport Appellate Tribunal as per Ext.P9 judgment dated 10.9.2008. Exts.P5 and P9 have been challenged in this writ petition. 5. It may be noted herein, at the outset, that the issue involved in all the other writ petitions are almost identical. The petitioners in all the other cases are also stage carriage operators operating on different routes, which overlap the notified route of Ernakulam- Muvattupuzha, inasmuch as that, such routes passes through the intermediate points of either Thiruvankulam, Thripunithura or Puthencruz. In W.P.(C).NO.28386/08 & Con.cases :: 5 :: other words, all such routes overlap the notified route of Ernakulam-Muvattupuzha and on a parity, the Regional Transport Authority and State Transport Appellate Tribunal have rejected the applications for the re-issue of permits. Since what is involved is the correctness of the reasoning given by the Regional Transport Authority and State Transport Appellate Tribunal, which is almost identical in all such cases, I have taken up the said petitions and by consent of parties, they are being disposed of by this common judgment. 6. I heard Mr.Gopinathan Nair, Mr.G.Prabhakaran and Mr.Deepak, learned counsel for the petitioners and Mr.K.Prabhakaran, learned counsel for the Corporation and Mr.P.N.Santhosh, learned Senior Government Pleader. 7. Reference will have to be made to Sections 99 and 100 of the New Act. Section 99(1) of the New Act reads as follows: S.99(1) Where any State Government is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that W.P.(C).NO.28386/08 & Con.cases :: 6 :: road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State Government may formulate a proposal regarding a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and other relevant particulars respecting thereto and shall publish such proposal in the Official Gazette of the State formulating such proposal and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deem fit." 8. Therefore, it is open to the State Government, in the first instance, to formulate the proposal for a scheme, to cover any area, route, or class of services, for the purpose of providing an efficient, adequate and properly co- ordinated route services. The scheme may provide for complte exclusion or partial exclusion of operations therefrom. The draft scheme is to be W.P.(C).NO.28386/08 & Con.cases :: 7 :: published and thereafter the procedure as contemplated by Section 100 will have to be gone through. Sub-Sections 1, 2 and 3 of Section 100 read as follows: "(1) On the publication of any proposal regarding a scheme in the Official Gazette and in not less than one newspaper in the regional language circulating in the area or route which is to be covered by such proposal any person may, within thirty days from the date of its publication in the Official Gazette, file objections to it, before the State Government. (2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, if they so desire, approve or modify such proposal. (3) The scheme relating to the proposal as approved or modified under sub-section (2) shall then be published in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become fianl on the date of its publication in the Official Gazette and shall be W.P.(C).NO.28386/08 & Con.cases :: 8 :: called the approved scheme and the area or route to which it relates shall be called the notified area or notified route: PROVIDED THAT no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government." 9. As per Section 100(3), once a scheme relating to the proposal, as finalised under Section 100(2), is published in the official gazette and in the news paper in the original, the same shall become final on its publication of the official gazette. The scheme shall be called the approved scheme and the area or route shall be called the notified area or notified route. 10. Section 102 of the New Act provides for the cancellation or modification of the scheme. This can be done by the State Government, but the modification, as proposed, will again have to be subjected to the same procedure, as is provided in Section 100. Section 103 deals with the issue of permits to the State Transport Undertakings. Where an application is made by the State Transport Undertaking for a stage carriage permit or a goods carriage permit or a contract W.P.(C).NO.28386/08 & Con.cases :: 9 :: carriage permit in respect of a notified area or a notified route, then the competent transport authority is bound to issue permit to the State Transport Undertaking, notwithstanding anything to the contrary contained in Chapter V. As per Sub- section (2) of Section 103, the transport authority may, for the purpose of giving effect to the approved scheme in respect of a notified area or a notified route, refuse to entertain any application for the grant or refusal of any other permit or reject any such application as may be pending. 11. Section 104 of the New Act deals with the restriction on grant of a permits in respect of a notified area or a notified route. The same being relevant and being the subject matter of controversy, it is extracted hereunder: "Where a scheme has been published under sub-section (3) of Sec.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 W.P.(C).NO.28386/08 & Con.cases :: 10 :: 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,a s the case may be, may grant temporary permits 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 the State Transport Undertaking in respect of that area or route." 12. Thus, under Section 104, where a scheme has been published under Sub-Section (3) of Sec.100, in respect of any notified area or a notified route, the competent authority shall not grant any permit except in accordance with the provisions of the scheme. But the proviso to Section 104 enables the competent authority to grant a Temporary Permit to any person even in respect of such notified area or route, subject to the condition that the permit shall be ceased to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route. 13. Though the scheme in question was notified n the year 1961, and the route from Ernakulam-Muvattupuzha has been treated as a W.P.(C).NO.28386/08 & Con.cases :: 11 :: notified route affirming it as part of the approved route and stage carriage operators have applied for route Temporary Permits under the proviso to Section 104 of the New Act or under Section 68 of the Old Act in certain cases from 1961 onwards, it is only as per the orders impugned in these writ petitions, that the applications for re-issuance of Temporary Permits have been rejected on the premise that the route applied for overlaps a portion of the notified route comprehended by the approved scheme Ext.P2 and therefore, it is not open to the competent transport authority to entertain an application for even a Temporary Permit under the proviso to Section 104. 14. The contention raised by the counsel for the petitioners can be encapsulated as follows: 15. Any area or any route can be the subject matter of a scheme formulated and approved in that behalf by the State Government under Sections 99 and 100 of the New Act. The approved scheme may provide for a notified area or a notified route. W.P.(C).NO.28386/08 & Con.cases :: 12 :: 16. Where a route is notified, then consequences of such notification is also statutorily provided for under Section 104 of the New Act. No permit shall be granted in favour of any operator other than the State Transport Undertaking in respect of any notified area or a notified route except in accordance with the provisions of the scheme; i.e. if there is an approved scheme itself which provides for limited permits being granted in favour of any person or class of persons or bringing any area within the approved scheme. But, there could be a total exclusion of any permit being issued to any private operator in relation to the notified route. There is no dispute in the present case that Ext.P3 scheme is a total exclusion scheme, in the sense that, no private operator can aspire for and obtain a permit to operate in the notified route as such. There is a total ban under Section 104 of the New Act. 17. Neither is there any dispute that the notified route as such originally contemplated is Ernakulam-Muvattupuzha. This is evident from the draft route formulated by the State Transport W.P.(C).NO.28386/08 & Con.cases :: 13 :: Authority, Ext.P2. But, what has been notified ultimately is as follows: "'Routes' as indicated in Annexure A, [in the present case, is Ernakulam- Muvattupuzha] and all routes connecting or passing through any two or more intermediate such routes." 18. Annexure A to Ext.P3 details not only Ernakulam-Muvattupuzha, but 9 other routes including Ernakulam-Thiruvankulam and Ernakulam- Thripunithura, the latter two being the two of the intermediate points in the scheme. What is significant is that the Government thought it appropriate not only to notify Ernakulam- Muvattupuzha as a notified route, but all other routes connecting or passing through any two or more connecting routes. Therefore, any route, which either connects Thiruvankulam-Thripunithura, two of the intermediate points or which passes through any other two or more intermediate routes which is beyond the same and which terminates at a point which is also beyond the 4 intermediate points would also be eligible to be treated as a notified route in the approved scheme Ext.P3. Once this position is accepted, then the W.P.(C).NO.28386/08 & Con.cases :: 14 :: consequences flowing therefrom would also be governed by the statute. The State transport undertaking would, therefore, have an exclusive right to obtain a permit in the route Ernakulam- Muvattupuzha. The State Transport Undertaking would also have a right under Section 103 of the New Act to obtain a permit in all or any other routes connecting or passing though any two or more of the intermediate points lying in the route Ernakulam-Muvattupuzha. There is an exclusivity made available in favour of the State Transport Undertaking by the statute not only between Ernakulam-Muvattupuzha, but also in respect of other routes which, connects two or more other intermediate routes lying within the route Ernakulam-Muvattupuzha. If that be so, then the routes, which were being serviced by the petitioners herein, all of them passing through two or more intermediate routes lying between Ernakulam-Muvattupuzha would also be a notified route for the purpose of Ext.P3 draft scheme and consequently until the State Transport Undertaking applies for and obtains a permit in respect of such routes, a right to apply for a Temporary W.P.(C).NO.28386/08 & Con.cases :: 15 :: Permit under the proviso to Section 104 of the New Act would remain in tact. 19. This is resisted by learned counsel for the respondents on the premise that any route which overlaps the notified route of Ernakulam- Muvattupuzha, would immediately be comprehended by the scheme and consequently, the bar under the first part of Section 104 straight away applies. 20. I have considered this issue anxiously and with reference to the provisions of the statute and I find force in the submission made by learned counsel for the petitioners. 21. There is an exclusivity made available to the State Transport Undertaking in respect of a notified area or a notified route as comprehended by an approved scheme. The exclusivity made in relation to the State Transport Undertaking would enable them to apply for and obtain a permit in respect of any route, which is comprehended by the scheme to the total exclusion of any other private operator. There must be a reason why the statute provides for such an exclusive privilege to the State Transport Undertaking. The State Government which formulates W.P.(C).NO.28386/08 & Con.cases :: 16 :: the scheme under Section 99 of the New Act considers the need of the travelling public and the need to establish a uniform service catering to the needs of such travelling public. Where therefore a route is notified the State Transport Undertaking gets its privilege for applying for and obtaining a permit to exclusively operate on such route. It is not open to any private operator to operate his service such route. But corresponding to this right, there is also an obligation on the part of the State Transport Undertaking to operate its services in the notified routes and where there is an approved scheme, as in the present case, which identifies not only one single stretch between Ernakulam- Muvattupuzha as a notified route, but also provides for any route which traverses two or more intermediate routes which passes through such notified route, then the right available to the State Transport Undertaking in this regard, is to apply for and obtain an exclusive permit, in respect of routes, which would classify as a notified route by reason of the fact that it passes through two or more intermediate routes W.P.(C).NO.28386/08 & Con.cases :: 17 :: falling within the notified route of Ernakulam- Muvattupuzha. As I stated above, the obligation on the part of the State Transport Undertaking in such circumstances, would, therefore, be to operate services in such notified routes also. 22. But the statute also recognises the contingency of the State Transport Undertaking either not being in a position to cover all the notified routes contemporaneously or deciding not to conduct service in all the notified routes, as part of the scheme, at the same time. In such cases, since the needs of the travelling public will have to be satisfied and the same constitues a paramount factor as such, it is open to the transport authority to entertain an application for a Temporary Permit from a private operator and then grant such Temporary Permit, subject to the conditions that could be imposed under the statute. But, here again, it is worthwhile to note that any such Temporary Permit obtained by a private operator will cease to be effective, the moment the State Transport Undertaking obtains a permit on the route in terms of Section 103 of the New Act. It is also relevant to note that insofar W.P.(C).NO.28386/08 & Con.cases :: 18 :: as the route comprehended by the approved scheme is concerned, there is an absolute right for State Transport Undertaking to apply for a permit and obtain it. But there is no unqualified right available to the private operator. They are entitled only to temporary Permits and it is not obligatory on the part of the transport authority to grant such Temporary Permits. 23. What flows out of the above discussion, is that every route, which traverses through two or more points falling within the notified route of Ernakulam-Muvattupuzha, would qualify itself as a notified route within the scope of Section 100 of the New Act. Consequently, the routes, which are being serviced by the petitioners herein on Temporary Permits, will also have to be treated as notified routes within the meaning of Section 100 of the New Act. They are notified routes not by reason of the fact that they operate between Ernakulam-Muvattupuzha, which is one of the notified routes, but for the reason that they traverse two or more intermediate points falling within Ernakulam-Muvattupuzha. Thus, applications for re-issue of Temporary Permits, at W.P.(C).NO.28386/08 & Con.cases :: 19 :: the instance of the petitioners, were maintainable under the proviso to Section 104 of the New Act. Those applications for Temporary Permits were rejected on the ground that the routes overlap the notified route of Ernakulam-Muvattupuzha. The reasoning adopted both by the Regional Transport Authority and State Transport Appellate Tribunal is faulty. The competent transport authority should consider whether the route, in respect of which the re-issuance of Temporary Permit is sought for by the oeprator, is a route in relation to which a permit has been applied for and obtained by the State Transport Undertaking. If the State Transport Undertaking has obtained a permit in relation to such route, then obviously, even an application for a Temporary Permit under the proviso to Section 104 will not be maintainable. Further, even if a Temporary Permit is issued for any notified route, the moment, the State Transport Undertaking applies for and obtains a permit in respect of such route, then the Temporary Permit issued in favour of a private operator ceases to be effective then and there. W.P.(C).NO.28386/08 & Con.cases :: 20 :: 24. For these reasons, I am of the view that the issue requires reconsideration by the Regional Transport Authority. Accordingly the writ petition [W.P.(C)No.28386/08] is allowed in part. Exts.P5 and P9 are set aside. The application for re-issue of Temporary Permits submitted by the petitioner herein shall be considered by the Regional Transport Authority, Ernakulam, in accordance with law and in the light of the observations contained in this judgment, after notice to the petitioners as well as the 4th respondent Corporation. Fresh orders shall be passed within one month from the date of receipt of a copy of this judgment. W.P.(C).Nos.29810, 29824, 29984, 30004, 30042, 30049, 30075, 30235, 30241 & 30793 of 2008 The reasoning adopted in the above case is equally applicable to these cases also. Accordingly, the orders passed by the Regional Transport Authority and the State Transport Appellate Authority, as aforementioned, in all these cases, are also set aside. The Regional Transport Authority, Ernakulam shall pass fresh orders in these cases, in the light of the W.P.(C).NO.28386/08 & Con.cases