IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 30214 of 2008(V) -------------------------- PETITIONER(S): --------------- YUSUF.P.A, POTTEKKATU HOUSE, EDAYAKUNNAM, SOUTH CHITTOOR P.O., ERNAKULAM DISTRICT. BY ADV. SRI.DEEPU THANKAN RESPONDENT(S): --------------- 1. THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM, REPRESENTED BY ITS SECRETARY. 2. STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM. 3. M.B.THAMBI, MULLOOR HOUSE, ESI ROAD, KOCHI. ADV. SRI.G.PRABHAKARAN FOR R3 GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 30214/08. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE PERMIT ISSUED BY R1. P2. COPY OF THE ORDER OF RTA. DTD.18.12.07. P3. COPY OF THE ORDER OF R2 DATED 18.3.2008 P4. COPY OF THE ORDER OF R1 DTD.22.4.08. P5. COPY OF THE NOTIFICATION BY R1. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.30214 of 2008 ================== Dated this the 5th day of October, 2009 J U D G M E N T The petitioner is a stage carriage operator. He has filed this writ petition challenging Exts.P3 and P4 orders of the State Transport Appellate Tribunal and the Regional Transport Authority respectively. Originally, by Ext.P2 order, a variation applied for by the 3rd respondent for his permit was rejected. That was challenged by the 3rd respondent before the Tribunal and the Tribunal, by Ext.P3 judgment, allowed the appeal and directed the respondents to grant variation sought for, subject to settlement of timings. Pursuant thereto, Ext.P4 order was passed by the RTA granting variation subject to settlement of timings. The petitioner challenges Exts.P3 and P4 on the ground that this is against the second proviso to Section 80(3) of the Motor Vehicles Act. The contention is that the 3rd respondent has requested for curtailment of the existing route as well as extension of the route. According to the petitioner, curtailment together with extension would come to more than 24 kilometers, which would violate the second proviso to Section 80(3) of the Act. 2. A counter affidavit has been filed by the 3rd respondent taking the stand that in view of the Full Bench decision of this Court in Binu Chacko v. R.T.A., Pathanamthitta [2006 (2) KLT 172], w.p.c.30214/08 2 wherein a Full Bench has held that existing operator cannot challenge a permit granted to another operator, this writ petition is not maintainable. According to the 3rd respondent, that prohibition is extended to variation of permit also by Ext.R3(a) judgment of this Court in W.P.(C).No.21281/2007. Therefore, according to the 3rd respondent, the challenge by the petitioner against Exts.P3 and P4 orders is incompetent. He would further submit that on merits also, there is no case for the petitioner in so far as the second proviso to Section 80(3) prohibits variation exceeding 24 kilometers and that does not contemplate adding of variation in respect of curtailment to variation in respect of extension for the purpose of calcualting the distance stipulated in the proviso. According to the 3rd respondent, taken separately, the curtailment does not exceed 24 kilometers and the extension also does not exceed 24 kilometers. Therefore, according to the 3rd respondent, there is no violation of the second proviso to Section 80(3) of the Motor Vehicles Act. Thirdly, the 3rd respondent would contend that in any event, the petitioner is not in any way affected by the variation granted and therefore, he has no locus standi to challenge the orders. 3. I have considered the rival contentions in detail. 4. Regarding the objection raised on the maintainability of the writ petition at the hands of the petitioner, the petitioner would w.p.c.30214/08 3 contend that the Full Bench decision applies only to challenge against grant of fresh permits and not to variation of conditions of a permit. According to the petitioner, granting of variation of a permit is not granting of a new permit although Section 80(3) states that extension or curtailment of the route or routes or the area specified in the permit shall be treated as application for grant of a new permit. For this proposition, the petitioner relies on the decision of the Supreme Court in K.S.R.T. Corpn. Bangalore v. B.A.Jayaram (AIR 1984 SC 790), wherein, interpreting identical proviso of Section 57(8) of the erstwhile Motor Vehicles Act 1938, the Supreme Court held that the said section does not create a legal fiction and grant of variation of the conditions of a permit as per Section 57(8) does not result in the grant of a new permit. On this question, I am inclined to agree with the learned counsel for the petitioner for the following reasons. 5. Section 80(3) of the Act reads thus: “80. Procedure in applying for and granting permits:- xxx xxx xxx (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 it, or in the case 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 w.p.c.30214/08 4 without any increase in the number of vehicles:” Section 57(8) of the erstwhile Motor Vehicles Act 1939 reads thus: “57. .... (8) 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, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carrier's permit, by increasing the number of vehicles covered by 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 a stage carriage permit who provides the only service on any route or in any area to increase the frequency of the service so provided, without any increase in the number of vehicles.” Both sections contain the words, “such application for variation shall be treated as an application for grant of a new permit”. Interpreting the second proviso to Section 57(8) of the erstwhile Act, the Supreme Court held thus: “17... Assuming, therefore, that an application for variation of the conditions of a permit referred to in sub-section (8) of Section 57 is to be deemed by an fiction of law to be an application for the grant of a new permit, the question to which we must address ourselves is for what purpose is such an application for variation deemed to be an application for grant of a new permit. Reading sub -sections (3) to (8) of Section 57 as a whole, it is clear that the only purpose is to apply to such an application for variation the procedure prescribed by sub-sections (3) to (7) of Section 57 and not for the purpose of providing that when the application for variation is granted, the permit so varied would be deemed to be a new permit. If a permit so varied were to be deemed to be a new permit, the result would be anomalous....” Therefore, going by the Supreme Court decision, grant of variation of an existing permit would not result in issue of a new permit. In paragraph 25 of the Full Bench decision in Binu Chacko's case it is held thus: w.p.c.30214/08 5 “25. .....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, renewal of a permit, etc...” Reading the Full Bench decision and the Supreme Court decision together, if an existing operator is aggrieved by a variation granted in the conditions of permit to another existing operator, he can certainly challenge the grant of variation. 5. However, I am not inclined to agree with the petitioner on other two points. The petitioner would be entitled to challenge the orders only if he is aggrieved by the variation of the permit. Nowhere in the writ petition has the petitioner stated how he is aggrieved by the variation granted to the 3rd respondent. In fact in answer to a pointed question put to the counsel for the petitioner, by the Court, he admits that the petitioner would not be affected by the variation granted to the 3rd respondent. 6. Apart from that, I do not find any merit in the contention of the petitioner that going by the second proviso to Section 80(3), the requirement is that the variation together with extension shall not exceed 24 kilometers. It is not disputed before me by the petitioner that taken separately variation and extension do not exceeded 24 kilometers. Only if the variation and extension are taken together, the distance would exceed 24 kilometers. Since variation and extension w.p.c.30214/08 6 have been separately dealt with in the proviso, I am of opinion that both should be treated separately and variation and extension separately should not exceed 24 kilometers. That would mean that even if the variation and extension taken together exceeds 24 kilometers, there is no embargo going by the proviso, provided each does not exceed 24 kilometers. For the above reasons, I do not find any merit in the contentions of the petitioner. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge