IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 WA.No. 1270 of 2009() --------------------- AGAINST THE JUDGMENT IN WPC.28386/2008 DT.21.10.2008 .................... APPELLANT/ 4TH RESPONDENT IN WPC ------------------ THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. BY ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. ADV.SRI.V.NANDAGOPAL NAMBIAR. RESPONDENTS/ PETITIONER & R1, 2 & 3 IN WPC ----------------------------------------- 1. SRI. N.R.BABUDAS, S/O RAMAN NAIR, RESIDING AT NAMBIATH HOUSE, CHOTTANIKKARA P.O. 2. THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM. 3. REGIONAL TRANSPORT AUTHORITY, ERNAKULAM, REPRESENTED BY ITS SECRETARY. 4. SECRETARY, REGIONAL TRANSPORT AUTHORITY, ERNAKULAM. ADV. SRI.P.DEEPAK FOR R1 GOVT.PLEADER, SRI.NOBLE MATHEW FOR R2 TO R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2009, ALONG WITH WA NO. 1291 OF 2009 WA NO. 1292 OF 2009 WA NO. 1293 OF 2009, WA NO. 1294 OF 2009 & WA NO. 1307 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ----------------------------------------------- W.A. Nos. 1270, 1291,1292, 1293, 1294 & 1307 OF 2009 ---------------------------------------------- Dated this, the 1st day of December, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The Kerala State Road Transport Corporation (for short 'K.S.R.T.C.') is the appellant in all these cases. W.A.No.1270/2009 is treated as the main case for the purpose of referring to exhibits and parties. The 1st respondent applied for a temporary permit on the route Vattappara- Ernakulam-Kaloor via Peppathy, Mulanthuruthy, Chottanikkara, Thiruvankulam, Thripunithura, Vyttila and Kaloor Kadavanthra road. It is submitted that he was operating on the route for quite some time. But, when he applied for re-issue of the temporary permit, taking into account the objection raised by the K.S.R.T.C., the application for temporary permit was rejected by Regional Transport Authority, Ernakulam, by issuing Ext.P5 decision dated 19.7.2008. The said order reads as follows: W.A. No.1270/ 2009 etc. - 2 - “Heard. The application is for temporary permit for one year U/S.104. S.104 of the MV Act lays down that “since the scheme is published Under Section 100(3) in respect of any route the RTA shall not grant any permit except in accordance with the provisions of the scheme.” It is a prohibitory clause. However the provision reads that where no application for a permit has been made by the STA in respect of any notified route in pursuance of an approved scheme the RTA may grant temporary permit to any person in respect of such notified route subject to the condition that such permit shall cease to be effective on the issue of permit to the STU in respect of the route. It is a provision to maintain service of S/C in between the period of actual notification and assume service by the STU. It is not a mandatory provision. The scheme approved early on 28.8.1961 No.65598/TA4160/DW as Ernakulam - Muvattupuzha and STU started several Stage Carriage service on the route. Hence the provision to Section 104 is not revelant now. (ii) The temporary permit applied is not in the notified route but only overlaps on the notified route. Hence permit can be granted according to the scheme ie., without connecting and passing through two or more intermediate points. But the W.A. No.1270/ 2009 etc. - 3 - route applied connects and passes through two intermediate points Thiruvankulam and Tripunithura. (iii) Also the portion of the route from Tripunithura to Ernakulam overlaps on the approved supplementation scheme Ernakulam - Thekkady published vide SRO 444/08 dated 06.5.2008. Hence rejected. 2. 1st respondent challenged Ext.P5 before the State Transport Appellate Tribunal. The STAT dismissed the appeal by Ext.P9 judgment dated 10.9.2008. Challenging Exts.P5 and P9, the Writ Petition was filed. The K.S.R.T.C filed a counter affidavit resisting the prayers in the Writ Petition. But, the learned Single Judge, after hearing both sides, allowed the Writ Petition. Hence, this appeal by the K.S.R.T.C. 3. We heard the learned counsel on both sides. The learned standing counsel for the K.S.R.T.C. submitted that they are mainly pressing only point No.(ii) mentioned in Ext.P5 for rejection of the permit. Ernakulam- Muvattupuzha W.A. No.1270/ 2009 etc. - 4 - is a nationalised route covered by Annexure-B nationalisation scheme. Ernakulam - Muvattupuzha is the 1st route mentioned in Annexure-A of the said scheme. Tripunithura, Thiruvankulam, Puthencruz and Valagom are the intermediate points. The K.S.R.T.C. is operating several services on that route. Therefore, the private operators cannot get any permit touching Ernakulam- Muvattupuzha route, except in accordance with the scheme. The scheme provides that private operators cannot operate on any route, connecting or passing through two intermediate points. The route Vattapara-Ernakula-Kaloor touches Thiruvankulam and Tripunithura, which are two intermediate points on Ernakulam Muvattupuzha nationalised route. Therefore, the point No.(ii) mentioned in Ext.P5 for rejecting the application was legal and valid. There was no reason to interfere with the same, it is submitted by the learned standing counsel. The learned counsel for the party respondents supported the view taken by the learned Single Judge. 4. Temporary permits having duration of one year could be granted on a notified route, if the State Transport W.A. No.1270/ 2009 etc. - 5 - Undertaking is not operating on the route. It is common ground that K.S.R.T.C. is operating several services on the route Ernakulam- Muvattupuzha. Therefore, the private operators cannot get any permit on that route, except in accordance with the nationalisation scheme. We notice that it is a complete exclusion scheme with exception. The private operators can operate without connecting or passing through two intermediate points of the notified routes. The permit on the route Vattappara-Ernakulam-Kaloor connects and passes through Thiruvankulam and Tripunithura, which are two intermediate points on the nationalised route Ernakulam- Muvattupuzha. Therefore, the direction of the learned Single Judge to grant temporary permit is unsustainable. 5. We notice that the permits involved in the other connected cases also touches the aforementioned two points, namely , Thiruvankulam and Thripunithura. Therefore, the direction of the learned Single Judge in all the connected cases were also liable to set aside. We do so. W.A. No.1270/ 2009 etc. - 6 - In the result, the Writ Appeals are allowed and the Writ Petitions are dismissed. No costs. (K. BALAKRISHNAN NAIR, JUDGE) (P.BHAVADASAN, JUDGE) ps