IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 WP(C).No. 19558 of 2006(C) -------------------------- PETITIONER: --------------- T.P.SUDHAKARAN, THIRUTHUMMEL HOUSE, KANNANKARA P.O., CHELANNUR, KOZHIKODE. BY ADV. SRI.K.V.GOPINATHAN NAIR RESPONDENTS: --------------- 1. THE REGIONAL TRANSPORT AUTHORITY, KOZHIKODE REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOZHIKODE. 3. K.T.SANTHA, SINDHU HOUSE, PUTHIYANGADI, KOZHIKODE. ADV. SRI.P.DEEPAK FOR R3 SENIOR GOVT. PLEADER SRI.BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 19558/2006 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE REGULAR PERMIT ISSUED TO THE PETITIONER ON THE ROUTE ELATHUR – CITY VALID UP TO 2.8.2000. EXT.P2 - TRUE COPY OF THE TIMING ISSUED TO THE PETITIONER ON THE ROUTE ELATHUR – CITY. EXT.P3 - TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C) NO.24649/2003 DATED 7.8.2003. EXT.P4 - TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT ISSUING 4 MONTHS TEMPORARY PERMIT IN FAVOUR OF THE PETITIONER DATED 26.3.2004. EXT.P5 - TRUE COPY OF THE TEMPORARY PERMIT ISSUED TO THE PETITIONER VALID UP TO 5.8.2004. EXT.P6 - TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT GRANTING REGULAR PERMIT DATED 18.5.2004. EXT.P7 - TRUE COPY OF THE ORDER OF THE S.T.A.T. IN MVARP NO.111/2004 DATED 3.12.2004. EXT.P8 - TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C) NO.18904/2005 DATED 6.9.2005. EXT.P9 - TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.A. NO.1976/2005 DATED 28.9.2005. EXT.P10 - TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 24.10.2005. EXT.P11 - TRUE COPY OF THE REVISION MEMORANDUM AS MVARP NO.10/2006 FILED BY THE PETITIONER BEFORE THE S.T.A.T DATED 6.1.2006. EXT.P12 - TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN MVARP NO.10/2006 DATED 25.3.2006. EXT.P13 - TRUE COPY OF THE ORDER OF THE S.T.A.T. IN MVARP NO.10/2006 DATED 25.4.2006. /TRUE COPY/ K.BALAKRISHNAN NAIR, J. ----------------------------------------- W.P.(C) NO. 19558 OF 2006-C ----------------------------------------- JUDGMENT The petitioner and the 3rd respondent are operating on the route Elathur -City. It is a city route in Kozhikode. Originally, the petitioner was operating on the route as per Ext.P2 time schedule from 1975 onwards. But, in 2001 he had to discontinue the operation of the service due to heavy arrears of motor vehicles tax. In that vacancy the 3rd respondent started operation on the strength of temporary permits granted from time to time. Though, the petitioner was granted renewal of his permit, he could avail of the same, as he failed to clear the arrears of tax within time. He could clear it only after the lapse of three years. Therefore, the renewal lapsed. The petitioner, therefore, applied for a fresh regular permit on the route. The said application along with the application of the 3rd respondent for regular permit on that route was considered by the R.T.A. Both the applications were allowed. But, the time schedule as per Ext.P2 was allotted to the 3rd respondent by the R.T.A., by Ext.P6 proceedings dated 18.5.2004. The petitioner filed a WPC 19558/06 2 revision before the S.T.A.T., feeling aggrieved by the grant of the time schedule in Ext.P2 to the 3rd respondent. The S.T.A.T dismissed the same by Ext.P7 order. This Court by Ext.P8 judgment, set aside the grant of Ext.P2 time schedule to the 3rd respondent by the R.T.A and its affirmation by the S.T.A.T and remitted the matter for fresh consideration in accordance with law by the R.T.A. Pending consideration, the 3rd respondent was permitted to operate as per Ext.P2 time schedule. The said decision in Ext.P8 was affirmed by the Division Bench of this Court also. But, the Division Bench clarified that while considering the matter afresh, the R.T.A shall not be influenced by any observation in Ext.P8 judgment. The R.T.A reconsidered the matter and passed Ext.P10 order on 24.10.2005. The R.T.A justified its decision to prefer Smt.K.T.Santha, the 3rd respondent herein for allotment of Ext.P2 time schedule, for the reason that she was operating on that route from 2001 onwards. The petitioner filed a revision before the S.T.A.T., challenging that decision. The Tribunal considered the matter and upheld the decision of the R.T.A., by Ext.P13 order. The relevant portion of that order reads as follows: WPC 19558/06 3 “7. Hence the question to be considered is whether the option exercised by the R.T.A is correct or not. Here, in the impugned order dated 24.10.2005 the reason for granting the vacant timing to the third respondent is given as that she was operating with the time since 2001. The factum that she has been operating on the route on temporary permit is not disputed. She was operating continuously till 2003, the time of her application for regular permit. Hence on the date of application too, she was operating service. Of course, it is stated that the petitioner had also operated on temporary permit from 6.4.2004 to 5.8.2004. But that grant was made only pending the application for regular permit. But the third respondent made claim while continuously operating on the route on temporary permit for more than two years. Hence, considering the duration of the operation on the temporary permit and the fact that at the time of filing regular permit application third respondent was operating there on the route on temporary permit, the preference given to the claim raised by the third respondent for the vacant timing cannot be said to be illegal or improper. Hence, the allotment of vacant timing to the third respondent is only to be upheld.” Challenging Ext.P10 order of the R.T.A and Ext.P13 order of the S.T.A.T., this Writ Petition was filed. 2. The main ground raised against the said grant is contained in Ground D of this Writ Petition, which reads as follows: “Ext.P13 order rendered by the Tribunal in the revision petition filed by the petitioner is also illegal and unsustainable. Even the basic approach made by the Tribunal is against the well-settled proposition of law laid WPC 19558/06 4 down by the Full Bench of this Honourable Court. The date of consideration is the relevant date and it is not any date anterior or subsequent to the date of consideration. On the date of consideration the petitioner is the existing operator with Ext.P2 timings which has been issued with the permit in preference to the 3rd respondent. That is the crucial and vital aspect the petitioner is entitled to get the timings. Of course, he is operating from 1975 to 2001 also with that timing. When the petitioner was operating for 16 years with that set of timings and on the date of consideration he was the existing operator with that timings, there is absolutely no justification on the part of the 1st respondent or the Tribunal to brush aside the operation of the petitioner and to give undue advantage to the 3rd respondent by virtue of his temporary operation for two years. Therefore, the reasoning of the Tribunal ignoring the claim of the petitioner and justifying the order of the 1st respondent on the basis of a proposition which is contradictory to the well- settled proposition of law laid down by this Honourable Court, is an error of law apparent on the face of the records itself and the order of the Tribunal is illegal and totally unsustainable and liable to be quashed.” In answer the 3rd respondent relied on her pleadings in Ext.P12 counter affidavit filed before the S.T.A.T. The relevant portion of the said counter affidavit reads as follows: “5. The reliance on Exhibit P4 is misplaced. The grant of temporary permit to the revision petitioner vide proceedings of the 1st respondent cannot be relied upon, as the said decision was taken vide circulation of papers and without notice and opportunity of being heard to the deponent. Moreover, the issue of permit was made only on 6.4.2004. It was only when the revision petitioner WPC 19558/06 5 commenced operation on the strength of Exhibit P5 permit from 6.4.2004 onwards that the deponent herein was made aware of Exhibit P4 proceedings. Thereafter, Exhibit P6 order was rendered on 18.5.2004 itself allotting the vacant timings to me to operate the regular permit. In the circumstances it is futile to argue that Exhibit P4 has attained any sort of statutory finality. Moreover, the grant and issue of permit vide Exhibits P4 and P5 was purely subject to the resumption of service by the route bus. With the commencement of service by me on the strength of the regular permit from 29.5.2004 onwards the revision petitioner had to make way.” 3. I heard the learned counsel on both sides, including the learned Government Pleader for the official respondents. No statutory provision governing preference in the matter of grant of time schedule to a particular operator was brought to my notice. It is a matter within the discretion of the R.T.A concerned. In this case, the 3rd respondent was preferred for the reason that she was operating on the route from 2001 onwards. It is true, the petitioner was operating on the strength of substitute permit for a few weeks before the decision in favour of the 3rd respondent was taken on 18.5.2004. If the R.T.A decides to prefer the 3rd respondent, in view of her recent operation of the service for about three years, there is nothing illegal about the same, warranting interference under Article 226 of the Constitution of India. The view WPC 19558/06 6 taken by the R.T.A is a plausible view on the facts. If this Court was considering the matter and this Court feels that it would have taken a different view, even then, this Court is not justified in interfering with the decision of the R.T.A or that of the S.T.A.T., affirming the same, while judicially reviewing those orders. It is a well-settled position in law that two reasonable persons can come to diametrically opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable men. This Court can interfere, if only the decision of the R.T.A./S.T.A.T is shown to be illegal or the discretion is exercised in a perverse manner or in a manner, which no man in his senses will exercise. As mentioned earlier, the view taken by the R.T.A is a plausible view on the facts. Therefore, the Writ Petition fails and it is dismissed. 26th September, 2008. K.BALAKRISHNAN NAIR, JUDGE. Nm/ WPC 19558/06 7