Case: KERALA STATE ROAD TRANSPORT CORPORATION Vs. BABY P.P

It was held by this Court in U.P. SRTC and another vs. Sanjida Bano and others, reported in (2005) 10 SCC 280, that irrespective of the number of buses and trips undertaken by the STU, the fact that it is plying its vehicles on the notified route precludes others from taking the benefit of the proviso to Section 104 of the Act. The Court held thus:?5.…Whether or not the number of buses and the trips operated by the State transport undertaking were enough to cater to the volume of need of the commuting public, is not germane to the applicability of the proviso. The scheme provides for as many permits as needed being lifted by the State transport undertaking. The State transport undertaking was operating 36 trips on the date of the order of the High Court and is now operating 40 trips, as stated by the learned counsel for the appellants at the Bar. However, the learned Senior Counsel for the respondents has disputed the correctness of this statement and submitted that the Secretary, Regional Transport Authority had found only 25 trips being in operation. Be that as it may, we are not inclined to hold that in spite of the appellant Corporation operating on the route resort can be had to the proviso to Section 104 of the Act for granting temporary permits.?(emphasis supplied)33. Strangely, the Respondent No.1 sought to produce certain documents before the Court, just about two days prior to the final arguments. Such documents contained so called three temporary permits granted in favour of three private stage carriage operators on the notified route subsequent to the scheme. Relying upon such documents, Mr. Basant argued that same concession as has been given to three private stage carriage operators should be given in favour of the respondent no.1 also. These submissions are rightly objected by Mr. Giri taking an exception to the manner in which these documents were sought to be produced two days prior to the final arguments; these documents were not available on the record before the High Court or before the STAT. Since opportunity was not available to the appellant to have its say on the documents, he submitted that the said documents need to be ignored. It is not clear from any of the record that such temporary permits were granted and even if granted whether they have expired or not. Even otherwise there was no opportunity for the appellant to have its say on alleged permits. Hence, we do not propose to consider and comment upon such documents produced by the contesting respondent.34. Mr. R. Basant relied heavily on Punjab Roadways vs. Punjab Sahib Bus & Transport Co., reported in (2010) 5 SCC 235 , to make a claim that temporary permits may be granted even when the STU has applied for a permit. In that case, this Court held as under:?34. The abovementioned provision states where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the STA or the RTA as the case may be, shall not grant any permit except in accordance with the provisions of the scheme. An exception has been carved out in the proviso to Section 104 stating, where no application for permit has been made by the STU in respect of any notified area or notified route in pursuance of an approved scheme, the STA or the RTA, as the case may be, may grant temporary permits to any person in respect of any such notified area or 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 that area or route. In our view same is the situation in respect of a case where an STU in spite of grant of permit does not operate the service or surrenders the permit granted or is not utilising the permit. In such a situation it should be deemed that no application for permit has been made by the STU and it is open to the RTA to grant temporary permit if there is a temporary need. By granting regular permits to the private operators the RTA will be upsetting the ratio fixed under the scheme which is legally impermissible.?(emphasis supplied)35. Despite the strong submissions made on behalf of the respondent no. 1, it remains that Punjab Roadways (supra) is distinguishable from the present case on facts. In that case, the scheme of the Punjab Government shared all routes on the national and State highways in a specified ratio between STUs and private stage carriage operators. The relevant authorities as well as the High Court held that regular permits may be granted to private stage carriage operators where the STU is not using its permit. However, this Court took exception to the grant of ?regular? permits as relief, as doing so would upset the ratio contained in the scheme. Temporary permits would not upset the balance and were hence preferable in a situation where the scheme mandated that the routes be divided and utilized in a specific ratio. In the case on hand, there is no requirement of division into specific ratios. We see no reason to apply the findings in that case to the present scenario.36. The contention that the subsequent order of the RTA has remained unquestioned, and the respondent no. 1 is therefore entitled to operate his services on the notified route, cannot be accepted. Since the order of the STAT remanding the matter to the RTA with a direction to the RTA to exercise its power under the proviso to Section 104 of the Act, which was confirmed by the High Court, is held to be bad by us in this appeal, the consequent order of the RTA dated 23.02.2017 also needs to be held illegal. Moreover, we have heard the matter in its entirety and the said contention of respondent no.1, in our view, is too technical.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. Since the Scheme on hand partially excludes private stage carriage operators on the notified route, the same is to be adhered to. It is necessary in the public interest that road transport services on notified routes should be run and operated by the STU to the complete or partial exclusions of private stage carriage operators. In a State where the scheme has been published, subject to such scheme formulated by the State, no private stage carriage operator can operate beyond the stipulations of the scheme. This also applies to applications for temporary permits under the proviso to Section 104 of thethe matter on hand, undisputedly, more than 450 buses of the STU ply everyday on the notified route which pass from Angamaly to Perumbavoor. It is not open for the respondent no.1 to claim that the STU is not running sufficient buses from Palliserry to Perumbavoor via Angamaly. Admittedly, Palliserry to Angamaly is not a notified route. The dispute between the parties, thus, virtually relates to the route between Angamaly to Perumbavoor and not the route between Palliserry to Angamaly.20. Even otherwise it is not disputed that the STU is plying 8 trips from Palliserry to Perumbavoor via Angamaly. Apart from the same, the private sector is operating sufficient number of services from Palliserry to Angamaly. It is brought to the notice of this Court by the STU that the STU may provide more buses if required between Palliserry to Angamaly. Moreover, it is open for the respondent no.1 to seek permission as per law before the concerned authority and ply its buses on theroute. However, when it comes to operating on the notified route, that is, in between Angamaly and Perumbavoor, the respondent no.1 cannot operate its services for more than 5 kms or 5% of its route (whichever is less). Admittedly, part of the respondent no.1?s route measuring 13 kms is between Angamaly and Perumbavoor, and that entire patch of 13 kms overlaps the notified route. The total route length applied for by the respondent no.1 is only 28 kms. The overlap thus, permitted on the notified route (in the case on hand) as per the Scheme could only be 1.4 kms whereas the respondent no.1 wants to overlap by 13 kms, i.e. approximately 50% of his route, which is totally impermissible and the same is rightly objected to by the STU, particularly when the STU is operating 452 buses (amounting to 770 trips) in a day on the said route.From the aforementioned, it is clear that the temporary inconvenience, if any, to the travelling public was to be avoided till the permits were taken by the appellant and vehicles were made to ply on the route by it. Since the appellant is running sufficient number of buses/trips on the notified route, no inconvenience to the public is made out. Private stage carriage operators generally would be attempting to wear a mask to infiltrate into forbidden routes or areas or portions thereof, under the pretext of inconvenience to the travelling public, to sabotage the scheme.25. The STAT impliedly interpreted the proviso to Section 104 of the Act to mean that the competent authority would have the power to grant a temporary permit de hors the scheme. Such interpretation deserves to be rejected, i.e., the interpretation that until the STU puts vehicles on the newly carved out route fusingand notified route, temporary permits may be granted to private stage carriage operators. A new route cannot be introduced by fusing aroute with the notified route to seek a temporary permit on a carved out route. This device is obviously impermissible to enter into a frozen area or route or portion thereof, in excess of the limited permit under the scheme, through a back door. The Scheme is a law by itself and until it is varied according to law, no private stage carriage operator has any right to camouflage any device to obtain the permits. The new route introduced by the respondent no.1 fuses aroute (to an extent of 15 kms) and a notified route (to an extent of 13 kms), totally measuring 28 kms. This is contrary to the approved Scheme, since such newly introduced route by the respondent No.1 overlaps with 13 kms of the notified route, which is prohibited as per the Scheme. There cannot be any dispute that there will not be any scope for grant of any permit in that area or route covered by the Scheme, except what is specifically permitted or provided under the Scheme itself.26. In the matter on hand, the Scheme does not permit private stage carriage operators to overlap more than 5 kms or 5 % (whichever is less) of the route proposed by the private stage carriage operator, and as the respondent no. 1 wants to run services overlapping by 13 kms, the prayer is liable to be rejected.27. Thus, the RTA was justified in rejecting the claim of the respondent no.1 seeking temporary permit on the notified route, since the respondent no.1 has sought a temporary permit for the route which overlaps by 13 kms on the notified route; such overlap is clearly prohibited under the Scheme. Since the STU is running hundreds of bus trips on the part of the notified route i.e. from Angamaly to Perumbavoor, it is not open for the respondent no.1 to seek a temporary permit covering that distance.28. Moreover, overlapping to the extent of 5 kms or 5% of the route of respondent no.1 (whichever is less), is only for purposes of intersection under the Scheme. As the proviso to Section 104 of the Act is also subject to the Scheme, it is not open for any private stage carriage operator including the respondent no.1 to claim a temporary permit for traversing and overlapping with the notified route to the extent of 13 kms. The intersection of the notified route may not, in our view, be the same as traversing and overlapping with the route, because the prohibition under the Scheme must apply to the whole or a part of the notified route, and private stage carriage operators cannot be allowed to traverse the same line in the guise of intersection. In this case, as the stage carriage services of the respondent no.1 are to operate on a notified route to an extent of 13 kms, it cannot be considered an intersection. Intersection means ?to cut across?. It is permissible for any private stage carriage operator, under the Scheme in question, to traverse on a notified route up to the permissible limit as contemplated under the Scheme only for the purpose of cutting across the notified route, and to proceed further on aroute. Only in such a case can the temporary permit be granted.Since it is not a case of intersection as contemplated under Clause 5(c) of the Scheme, and as the overlapping sought by the respondent no.1 is more than both 5 kms or 5% of his total route, the prayer of respondent no.1 must be rejected. However, we hasten to add that (as mentioned supra) Clauses 5(c) and 6 of the Scheme provide that the private stage carriages would be allowed to pick up and drop passengers in between any two places on the route covered by the Scheme, provided that the route of the private stage carriage overlaps the notified route maximum to an extent of 5 kms or 5% of the length of its own route (whichever is less).32. At the cost of repetition, we must observe that the respondent no. 1 does not fall within the proviso to Section 104 of the Act. The appellant has been plying sufficient number of buses/trips on the notified route as a STU. Both parties admit that the appellant is running sufficient number of buses on the notified route. It was held by this Court in U.P. SRTC and another vs. Sanjida Bano and others, reported in (2005) 10 SCC 280, that irrespective of the number of buses and trips undertaken by the STU, the fact that it is plying its vehicles on the notified route precludes others from taking the benefit of the proviso to Section 104 of the Act.Despite the strong submissions made on behalf of the respondent no. 1, it remains that Punjab Roadways (supra) is distinguishable from the present case on facts. In that case, the scheme of the Punjab Government shared all routes on the national and State highways in a specified ratio between STUs and private stage carriage operators. The relevant authorities as well as the High Court held that regular permits may be granted to private stage carriage operators where the STU is not using its permit. However, this Court took exception to the grant of ?regular? permits as relief, as doing so would upset the ratio contained in the scheme. Temporary permits would not upset the balance and were hence preferable in a situation where the scheme mandated that the routes be divided and utilized in a specific ratio. In the case on hand, there is no requirement of division into specific ratios. We see no reason to apply the findings in that case to the present scenario.36. The contention that the subsequent order of the RTA has remained unquestioned, and the respondent no. 1 is therefore entitled to operate his services on the notified route, cannot be accepted. Since the order of the STAT remanding the matter to the RTA with a direction to the RTA to exercise its power under the proviso to Section 104 of the Act, which was confirmed by the High Court, is held to be bad by us in this appeal, the consequent order of the RTA dated 23.02.2017 also needs to be held illegal. Moreover, we have heard the matter in its entirety and the said contention of respondent no.1, in our view, is too technical.