Madras High Court
K.Bhoopathi vs The Regional Transport Authority on 28 August, 2023
Author: S.Srimathy
Bench: S.Srimathy
W.P.(MD)No.6877 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.08.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No. 6877 of 2019
and
W.M.P.(MD)Nos. 5487, 5488 & 6224 of 2019
K.Bhoopathi,
Sri Lakshmi Krishna Transports. ... Petitioner
Vs.
1. The Regional Transport Authority,
Tiruchirappalli,
Srirangam Region.
2. A.Mohamed Ismail
3. P.Subramanian
4. E.Ramasamy
5. Tvl.K.P.M. Transports,
34, Karur Road,
TIruchirappalli -2.
6. M.Ramasamy
7. Jabarullahthan
8. H.Hamatnal
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W.P.(MD)No.6877 of 2019
9. The Managing Director,
Tamil Nadu State Transport Corporation (Kumbakonam),
Periyamilaguparai,
Trichy – 1.
10. M.S.Durairaj
11. Trichy District Bus Operators Association,
Trichy. ... Respondents
[Respondents 2 to 11 are added as per order of this Court, dated 28.08.2023]
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, calling for the records of the
Respondent in R.No.64901/B1/2011, dated 02.02.2019 rejecting the application
of the Petitioner dated, December 2005 and 14.07.2004 seeking variation of
permit condition and diversion of route in respect of Stage Carriage TN-48/
J-1717, since replaced by TN-48/AF-1717 plying on the route Thiruvanaikoil to
Regional Engineering College and to quash the same and further direct the
respondent to permit the petitioner to ply his vehicle via West Bouleward Road on
onward journey and via. Market, Madurai Road on the return journey.
For Petitioner : M/s.Radha Gopalan, Senior Counsel , for
Mr.A.C.Asaithambi
For Respondents : Mr.C.Baskaran
Government Advocate, for R-1
Mr.S.C.Herold Singh,
Standing counsel, for R-9
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W.P.(MD)No.6877 of 2019
ORDER
This writ petition is filed for Writ of Certiorarified Mandamus, to quash the impugned order, dated 02.02.2019 rejecting the application of the Petitioner, dated, December 2005 and 14.07.2004 seeking variation of permit condition and diversion of route in respect of Stage Carriage TN-48/ J-1717, since replaced by TN-48/AF-1717 plying on the route Thiruvanaikoil to Regional Engineering College and further direct the respondent to permit the petitioner to ply his vehicle via west Bouleward Road on onward journey and via, Market, Madurai Road on the return journey.
2. The brief facts of the case is that the petitioner is a stage carriage operator, operating a stage carriage town service bearing Registration No.TN-48/AF-1717 Route No.69A with the following Trips:
(i). Thiruvanaikovil to Regional Engineering College (via) Main Guard Gate, Butterworth Road, East Rouleward Road, Market, Ariyamangalam, Thiruvarambur, BHEL. : 16 Single Trips
(ii). And independent Shuttle trips as Thiruvanaikoil to BHEL Main Office via. Main Guard Gate, Butterworth Road, East Buleward Road, Market, Ariyamangalam, Thiruvarambur, BHEL : 2 Single trips 3/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019
3. The petitioner submitted an application for variation of the route in the year 1996 with the following requests:
i. Extension of route from Thiruvanaikil to Srirangam ii. Extension of route from Market to Central Bus Stand iii. Curtailment of sector from Main Guard Gate to Market via, East Bouleward Road iv. Deviation of route from Main Guard Gate to Market via, West Bouleward Road.
4. Based on the amendment issued in G.O.Ms.No.758 Home Department dated 25.05.1996, the term “variation” was omitted and hence the petitioner had filed modified request in the year 2004 for grant of following variation:
a. Curtailment of sector between Main Guard and Market via, East Bouleward Road for all the 18 singles b. Deviation of route from Main Guard Gate Market via, West Bouleward Road for all the 18 singles The said modification request was notified and objections were called for as required under the Rules and hearing was fixed on 08.09.2005. The respondent 4/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 after hearing the petitioner had rejected the application on 31.03.2012 on three grounds:
(i). The respondents have stated that under Rule 4(4) of the Rules framed under the Act defining the term 'variation' has been omitted the respondent has no jurisdiction to grant variation.
(ii). There is a Comprehensive Approved Scheme that is in existence.
(iii). In so far as curtailment sector only six buses are doing 77 single trips whereas in the deviation sector 155 buses are doing 3310 single trips which will lead to heavy traffic congestion on the curtailment sector and therefore, the respondents have dismissed the petitioner's request.
Aggrieved over the same, the petitioner had preferred an appeal before the State Transport Appellate Tribunal, Chennai in Appeal No.104/2012 on the ground that it cannot be said that the respondent has no authority or power to grant variation since as per Section 6(2) of the Act 41 of 1992 the respondents have powers to vary the conditions of stage carriage permit.
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5. Aggrieved over the same the petitioner had preferred an appeal before the State Transport Appellate Tribunal, Chennai in Appeal No.104 of 2012 on the ground that it cannot be said that the respondent has no authority or power to grant variation by virtue of the removal of explanation clause in Rule4(4) of the Rules. As per section 6(2) of Act 41 of 1992, the respondent has powers to vary the conditions of stage carriage permit. In fact, this Hon’ble Court in W.P.No.12083 of 2010 dated 25.09.2012 has held that “By inserting an explanation in the schedule of act, the main provisions of the act cannot be defeated”. Merely because the explanation to Rule 4 was taken away subsequently by way of amendment, it cannot be said that the jurisdiction is taken away. As long as Rule 6(2) and Rule 4 are in the Statute book, it is for the authority to consider the application. Hence, the respondent has got every jurisdiction to consider the application. As far as the merits of the case is concerned, the petitioner has stated that the sector where the curtailment is sought i.e. East Bouleward Road, the width of the road is only 20 feet, whereas the width of the in which the deviation is sort i.e. West Bouleward Road the road with is 40 feet. Moreover, in the East Bouleward Road, there is no one-way traffic on the 6/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 vehicle are running up and down. Whereas in West Bouleward Road it is one-way traffic and vehicles are allowed to proceed on the West Bouleward Road towards the market and on the return journey they have to go only via Marakaadai, Madurai Road. Further on both the sides of East Bouleward Road, the banana market, fish market and sheds are there and it is used for the loading and uploading of goods vehicles. Even in the 20 feet road in the East Bouleward Road, there is a Central Meridian which occupies 2 feet. Therefore, there is heavy traffic congestion on the roads.
6. In the meantime, the petitioner had filed W.P.(MD)No.14093 of 2012 and contended that due to heavy traffic the petitioner could not operate the stage carriage via East Bouleward Road, hence an Advocate Commissioner was appointed, wherein the photographs showed the traffic congestion. Hence the Hon’ble Court had rendered a finding that the route is highly congested and permitted the petitioner to continue to ply in the diverted route i.e. West Bouleward Road till such time a final decision is taken on the request of the petitioner. In the meanwhile the case came up for hearing before the Appellate Tribunal and the petitioner had produced the copy of the aforesaid judgement and 7/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 also the Advocate Commissioner’s Report. The Tribunal after going through the said judgment has stated that the Regional Transport Authority has not taken any steps to consider the judgment of the Hon’ble High Court and no records were produced to that effect, hence based on the facts and circumstances of the case the Tribunal had remitted the case back to the Regional Transport Authority for fresh consideration and directed to pass order as per law and in the light of the order passed in W.P.(MD)No.14093 of 2012.
7. Pursuant to the order of remand by the Tribunal, the respondent had taken the petitioner’s application for hearing, but vide proceeding dated 02.02.2019 rejected the application on the very same reasoning that has been given for rejection of the application in the year 2012 and the perusal of the order would show that the reasoning given by the respondent in this order is almost the same as that of the order of the respondent dated 31.03.2012. The respondents stated that the market had been shifted and there is no congestion. In so far as the deviation of the route is concerned, inspite of the view taken by the Hon’ble Court in W.P.(MD)No.12083 of 2010 dated 25.09.2012 the respondent relied on the omission of the explanatory clause and had again held the respondent cannot 8/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 grant any variation since the comprehensive approved scheme, no new permit or variation can be granted.
8. It is pertinent to state that the Advocate Commissioner’s Report, it is specifically stated that no passenger vehicles are operating either by State Corporation or private sector. When the Motor Vehicles Inspector was enquired who was present at the time of inspection also replied that only one permit of the petitioner and two permits of the Corporation are granted and though some other buses are also having permit in this route, they are not operating the vehicles including the State-owned Corporation. The authority very well know that no other buses are operating and to prove that there is the evidence of Advocate Commissioner’s Report also. Therefore, purposefully again and again the reasoning of the authority that East Boulevard Road is not congested is objectionable. The 2nd respondent herein is the District Collector, who knows the fact that the new market was constructed but has not come into operation till the rejection of the petitioner application. The respondent had stated that the market has been totally shifted outside the city three months back which is false which is evident from the newspaper reports. All these things goes to show that the 9/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 respondent here and has purposefully rejected the application without taking into the account of the Advocate Commissioner’s Report and the order of the Hon’ble Court in W.P.(MD)No.14093 of 2012 dated 05.06.2014 and the remand order of the Tribunal to consider the application after hearing the parties and the objections as per provisions and in the light of the judgement rendered in W.P.(MD)No.14093 of 2012.
9. The petitioner contended that the Tribunal to have granted the relief following the observations of the High Court instead of remanding the case to the respondents. If the respondents had taken the real position of the East Bouleward Road, the respondent would have granted the deviation, but the respondents are driving the petitioner from pillar to post on the same issue from one forum to another despite the observations of Hon’ble Court. Hence it would be futile exercise to knock the doors of the Regional Transport Authority. Hence the petitioner had filed this petition.
10. The respondents have filed counter wherein it is stated that the Government of Tamil Nadu took a policy decision to permit private operators to 10/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 get their routes extended or varied. Accordingly, the Tamil Nadu Motor Vehicles (Special Provisions) Rules, 1995 were formulated under the provisions of Tamil Nadu Motor Vehicles Special Provisions Act 1992 (Act 41 of 1992) and notified in G.O.Ms.No.718 Home Department dated 18.05.1995 prescribing the procedure for considering the application for such variation by the Regional Transport Authorities in the State. The explanation to the term “variation” was also inserted in the said rules by the amendment issued. Based on the amendment the petitioner had submitted the application and the same was notified by the Secretary, Regional Transport Authority, Tiruchirappalli on 06.02.1996 as required under Rule4(2) of the Rules, 1995 and objections were received from the sector operators. Final orders were not passed due to the explanation to the term “variation” given in G.O. was omitted by the further amendment issued in G.O.Ms.No.758 Home Department dated 25.05.1996.
11. By virtue of the said omission all variations granted during the period between 24.01.1996 and 24.05.1996 were cancelled by the enactment of the Tamil Nadu Motor Vehicles Special Provisions (Cancellation of Variation) Act 1996 (Act 19 of 1996) by the State Legislature on 04.07.1996. And also the 11/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 Hon’ble Court had not given any observation on the maintainability of pending applications in the judgment dated 07.08.2003 in W.P.No.23854 of 2001 which was filed challenging Act 19 of 1996 by the operators. Therefore it was clarified that it does not mean that fresh applications for grant of variations could be entertained by the Regional Transport Authorities but it is subject to the policy decision taken by the government. Hence the petitioner had filed modified request dated 14.07.2004 and the same was notified on 22.07.2005 and hearing was fixed on 08.09.2005. Pending consideration, the petitioner had approached the High Court in W.P.No.13599 of 2011 and this Court vide order dated 09.10.2012 had directed the respondents to consider and pass orders. Accordingly, the Regional Transport Authority has conducted hearing and then final orders were passed on 31.03.2012 by rejecting the application dated December 1995 for variation of permit condition and application dated 14.07.2004 for modified route application. Aggrieved over Appeal No.104/2012 was preferred before Tribunal.
12. In the meantime, the petitioner had preferred W.P.(MD)No. 14093/2012 and the same was disposed of vide order dated 05.06.2014 with direction to take final decision. The Tribunal had passed orders on 12.11.2018, 12/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 wherein the case was remitted back for reconsideration. Hence hearing was fixed on 22.01.2019, wherein the objectors had submitted that presently there is no traffic congestion in East Bouleward Road and all the buses plying without difficulty, further only lesser number of buses are plying hence the praying of curtailment of 18 singles are against public interest and prayed to dismiss the petition. The State Transport Corporation Kumbakonam Ltd had also objected, wherein it is stated that all the private bus operators are plying in West Bouleward Road as against the original route of East Bouleward Road, hence public is suffering.
13. At the time of hearing the petitioner quoted the judgment, dated 25.09.2012 passed in W.P.No.12083 of 2010. After hearing the submissions of the petitioner and based on the facts and circumstances of the case the order was passed. As stated by the State Transport Undertakings that in the curtailment sector only 6 buses are doing 77 singles trips, whereas in the deviation sector 155 buses are doing 3310 single trips, therefore the plea of the petitioner that there is heavy traffic congestion is not acceptable. The contention of the petitioner that there is traffic congestion due to loading and unloading of goods cannot be 13/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 accepted, since the market was shifted three months back and the East Bouleward Road is free from market vehicle menace. Hence this cannot be a reason for totally curtailing the 18 trips now performed on the stretch of route and hence the curtailment is against the public interest. As far as deviation of route, section 6(2) of the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 empowers the Regional Transport Authority to grant variation of permit conditions to existing small operators protected under the said Act so as to overlap on notified routes subject to the rules to be framed in this regard. Rule 4(4) of said Rules and explanation clause defining the term “variation” was provided by a notification dated 29.12.1995 and all applications for variations were granted by various Regional Transport Authorities during the period between 24.01.2006 to 24.05.2006 by virtue of the said explanation only. But the same was omitted and it has not been restored till date.
14. In W.P.No.22854 etc. of 2001 the Hon’ble Court had held variations already granted pursuant to 6(2) read with Rule 4 are not affected by mere omission of explanation from the rules. Hence it is inferred that the Regional Transport Authority are empowered to grant variation by virtue of 14/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 explanation clause only and on omission the Regional Transport Authority cannot come to its own conclusion. Hence the respondent submitted that even though deviation of route in respect of notified route could be considered under section 6(2) the request of the petitioner cannot be considered consequent on the omission of the explanation clause to Rule 4(4) of the Rules framed under Act 41 of 1992.
15. Further the Regional Transport Authority had considered the plea of the petitioner and rejected the same for the reasons that any curtailment etc. would amount to new permit under section 80(3), no new stage carriage permit be granted after 30.06.1990 in respect of notified route, district wise area scheme of nationalization covering all revenue districts was notified on 23.05.1995, explanation of “variation” was omitted, section 66(3) is applicable on unforeseen circumstances, but the same is not applicable to the present case, market is shifted and hence no congestion, only 6 buses are doing 77 single trips in EB Road, but 155 buses doing 3310 single trips in WB Road. Further the persons residing in EB Road would be deprived of the facility. The respondents further submitted that the other sector operators who are operating their buses in course via EB Road 15/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 have not raised such difficulties. There is no public representation warranting the need to impose any restriction on the operation of bus service on this stretch of EB Road. Due to shifting of market and also the police officials had taken steps to regulate the traffic on the above said route there is no traffic congestion as alleged. The impugned order was passed after granting adequate opportunity to the petitioner and hence, there is no violation of principles of natural of justice. The respondents had also filed additional counter affidavit stating the writ petition is not maintainable. The issue of variation was considered by Hon’ble Supreme Court in Civil Appeal No. 4480 of 1998, vide order dated 19.07.2016 it is held that grant of variation will be as good as grant of a new permit and hence variation cannot be ordered. The Hon’ble Division Bench had quashed the G.O.Ms.No.136 dated 23.11.2011 vide judgment dated 22.12.2022 in W.A.No. 222 of 2017 and consequently the 1999 scheme is revived. The Tiruchirapalli approved modified scheme was published in G.O.Ms.No.1537 Home (Transport III) Department dated 17.11.1999 and the same is in force which cannot be modified. The petitioner is having alternative remedy of appeal. Hence the respondent prayed that the writ petition may be dismissed. 16/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019
16. Heard M/s.Radha Gopalan, the Learned Senior Counsel, for Mr.A.C.Asaithambi, appearing for the petitioner, Mr.C.Baskaran, the Learned Government Advocate appearing for the 1st respondent, Mr.S.C.Herold Singh, the Learned Standing counsel appearing for the 9th respondent and Mr.M.Mohamed Zamil, he Learned Advocate Commissioner and perused the Advocate Commissioner’s report and other material documents available on record.
17. The first contention of the petitioner is that when the petitioner had filed writ petition in W.P.No.14093 of 2012 the petitioner had contended that due to heavy traffic the petitioner is not able to operate the stage carriage via. East Bouleward Road to reach the destination in time. Hence the Court appointed an Advocate Commissioner in the aforesaid writ petition and upon inspection, the Advocate Commissioner filed his report. Based on the report, the Court has also held that the said route is highly congested by the traffic and smooth operation is not possible. The petitioner contended that the same situation prevails as on date also. But the same was refuted by the respondent and submitted that the market was shifted to the newly constructed market place. This submission of the respondents was vehemently opposed by the Learned Senior Counsel and hence 17/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 this Court in order to ascertain the fact whether the market was shifted, had appointed an Advocate Commissioner, who had filed his report stating that the market is still functioning in East Bouleward Road and the relevant paragraph is extracted hereunder:
“To inspect the disputed area and ascertain whether market has been totally shifted, whether there is traffic congestion in the East Bouleward Road:
(i) I started my inspection in the (Gandhi Market) in which I could see that the whole sale market and retail market were functioning. Agents were buying and selling whole sale vegetables, fruits in that place and lorries, mini lorries, auto rikshaw were loading and unloading the whole sale vegetables, fruits and Food grains.
(ii) Though the new market building in (Panjappur), Tiruchirappali District was opened much earlier, the said Market has not shifted so far.
(iii) The entire route of East Bouleward Road i.e., from Butter Worth Street to Market Bus Stop length about 1.9 kilometer in that the damaged medians and roads were subsequently redeveloped and Pucca Thar road was formed and the same was reopened in the month of May-2023. During my inspection in the entire East Bouleward Road I could see Heavy traffic congestion for about 350 meters from Banana market to the Market bus stand. In the Banana market both the margins of the road where all loaded lorries, unloaded lorries, Mini 18/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 lorries and auto rickshaws were parked and I could see nominal traffic in the remaining portion of the East Bouleward Road”.
Based on the report, this Court is of the considered opinion that the Market is still functioning. The difficulty raised by the petitioner is valid. The petitioner cannot run through East Bouleward Road and also cannot reach the destination in time, which will lead to business loss to the petitioner.
18. Further the Advocate Commissioner was directed to ascertain how many Private and Government operators are functioning in the East Bouleward Road. In his report, the Advocate Commissioner stated that in the East Bouleward Road 5 private buses has been permitted to do 74 single trips and 5 Government buses to do 13 trips, 7 up trips and 6 down trips as per the records furnished by the Regional Transport Officer. Though 6 private buses were given permission to do 77 single trips on East Bouleward Road, they are not operating in the East Bouleward Road and in his entire inspection the Advocate Commissioner could not see any private buses via East Bouleward Road. Based on the said report this Court is of the considered opinion that no private operators 19/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 are operating inspite of permission granted to operate and the prayer of the petitioner ought to be considered.
19. The next contention of the petitioner is that the respondents have passed the verbatim same order and the same amounts to non-application of mind. It is seen while passing order dated 31.12.2012 the respondents have stated the points for determination and the same is extracted hereunder:
“In the After careful analysis of the said facts and circumstances of the case, the point for determination was listed is under:
(a) whether the request of the applicant is in public and whether it can be allowed on grounds of traffic congestion on the stretch via East Bouleward Ward.
(b) whether the grant of deviation of route on a notified route is permissible by law in the light of New Comprehensive Scheme 2011.
(c) whether even after the omission of the explanation clause in rule 4(4) of the Tamil Nadu Motor Vehicles (Special Provisions) Rules 1995 Regional Transport Authority is empowered to allow the request of the applicant”.
While considering the points for consideration the respondents had held that 3310 single trips by 155 buses are carried out in West Bouleward Road whereas only 20/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 77 single trips by 6 buses are carried out in East Bouleward Road, if the 18 single trips of the petitioner is curtailed the same would be against public, moreover the traffic congestion cannot be cited as reason and hence point (a) is held against the petitioner. As far as deviation is concerned the respondents had held that the section 6(2) of Act 1992 empowers the Regional Transport Authority to grant variation of permit conditions so as to overlap on notified routes subject to the rules. Rule 4(4) of the said rules an explanation clause defined the term “variation’ was provided, but the said explanation clause was omitted and it has not been restored till date. The respondents had relied on the order passed in W.P.No.22854 of 2001 etc. vide judgment dated 07.08.2003 it is held that the said omission is prospectively and hence the variation granted would not be affected by mere omission. The respondents further stated in the order that, “Therefore, it was inferred that the Regional Transport Authority are empowered to grant variation by virtue of the said explanation clause only and after the omission of the said explanation clause the law is silent and the Regional Transport Authority cannot come to its own conclusion. I therefore come to conclusion that even though deviation of route in respect of notified route could be considered under section 6(20 of the Act 1992, the request of the applicant cannot be considered consequent on the 21/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 omission of the explanation clause to Rule 4(4) of the rules from under Act 41/1992. The points (b) and (c) are answered accordingly.” Aggrieved over the above order the petitioner had filed Appeal No.104 of 2012 and also filed W.P.(MD)No.14093 of 2012 and both the cases were disposed of by directing the respondents to consider the case of the petitioner. The contention of the petitioner is that while considering, the respondents have passed an order dated 02.02.2019 and had given the same reasoning, which is extracted in a nutshell:
i.That any curtailment etc. would amount to new permit under section 80(3), ii. According to section 6(4) no new stage carriage permit be granted after 30.06.1990 in respect of notified route, iii. District wise area scheme of nationalization covering all revenue districts was notified on 23.05.1995 and no new permit can be granted after 23.05.1995.
iv. According to Rule 4(4) explanation clause defining the term variation was provided but explanation of “variation” was omitted v. Section 66(3) is applicable on unforeseen circumstances, but the same is not applicable to the present case, vi. market is shifted and hence no congestion, 22/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 vii. Only 6 buses are doing 77 single trips in EB Road, but 155 buses doing 3310 single trips in WB Road.
viii. Further the persons residing in EB Road would be deprived of the facility.
20. On perusing the order dated 31.12.2012 and 02.02.2019, this Court is of the considered opinion that the respondent have stated that same reason for declining the plea of the petitioner. As far as the traffic congestion is concerned based on the Advocate Commissioner’s Report dated 25.07.2023, this Court had held that there is traffic congestion since the market is not shifted.
Hence the respondents cannot cite the 3310 trips and decline the petitioner’s claim. As far the explanation of “variation” is concerned, the issue was already considered in W.P.12083 of 2010, wherein vide order dated 25.09.2012 it is held as under:
“13. The Tamil Nadu Motor Vehicles (Special Provisions Act), 1992 and The Tamil Nadu Motor Vehicles (Special Provisions) Rules, 1995 gives jurisdiction to the statutory authority to consider the application for variation. Explanation was inserted for the purpose of giving more clarity to the concept 23/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 of variation. Merely because the Explanation was taken away it cannot be said that the authority has become powerless to consider the application for variation. Explanation to Rule 4 contains nine instances to be treated as variation. Merely because those instances were taken away subsequently by way of amendment, it cannot be said that the jurisdiction itself was taken away. So long as Section 6(2) of the Act and Rule 4 are in the statute book, it is open to the Regional Transport Authority to consider the application for variation.
14. The Regional Transport Authority proceeded as if, the moment the Explanation is taken away, it would foreclose its authority to consider the application for variation. It is to be noted that even before introducing the Explanation by way of amendment, the provision regarding variation has been in existence and the authority has also been exercising the power of variation. Therefore, I am of the view that the Regional Transport Authority clearly erred in rejecting the application for variation.” In the aforesaid judgment it has been held that the respondents are empowered to consider the claim of variation under Section 6(2) of the Act and Rule 4 of the Rules. It has been specifically held that until the provisions of section 6(2) and Rule 4 are in the statute book, it is open to the Regional Transport Authority to consider the application for variation. The aforesaid judgment squarely applicable 24/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6877 of 2019 to the present case and the said judgment was produced by the petitioner before the respondents at the time of hearing. Inspite of the same the present impugned order is being passed stating that the respondents are empowered only based on the explanation clause and after the omission of the said explanation clause, the law is silent and hence the Regional Transport Authority cannot come to its own conclusion. The respondents further stated even though deviation of route in respect of notified route could be considered under section 6(2) of the Act 1992, the request of the applicant cannot be considered consequent on the omission of the explanation clause to Rule 4(4) of the rules from under Act 41/1992.” Therefore, there is total non-application of mind. Also, when the issue is settled in the aforesaid judgment in W.P.12083 of 2010, hence the reasoning stated by the respondents are absurd.
21. The respondents further submitted that the other sector operators who are operating their buses in course via EB Road have not raised such difficulties. But as per Advocate Commissioner’s report none of the private operators are plying their buses in the EB Road.
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22. A feeble attempt was made by the respondents stating that there is no public representation warranting the need to impose any restriction on the operation of bus service on this stretch of EB Road. Moreover, due to shifting of market and also the police officials had taken steps to regulate the traffic on the above said route there is no traffic congestion as alleged. But as stated supra when there is traffic congestion in East Bouleward Road and when the market is still functioning in the East Bouleward Road as stated in the Advocate Commissioner’s report, then there is no need for any public representation.
23. For the reasons stated supra the impugned order is liable to be quashed and accordingly, the impugned order, dated 02.02.2019 is hereby quashed. Consequently, the respondents are directed to grant permission to the petitioner to ply his vehicle via West Bouleward Road on onward journey and via. Market, Madurai Road on the return journey.
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24. With these observations, this Writ Petition is allowed. No costs. Consequently, W.M.P.(MD)Nos.5487, 5488 of 2019 are closed and W.M.P(MD)No.6224 of 2019 is allowed.
Index : Yes / No 28.08.2023
Internet : Yes
NCC : Yes / No
ksa
To
The Regional Transport Authority,
Tiruchirappalli,
Srirangam Region.
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W.P.(MD)No.6877 of 2019
S.SRIMATHY, J
ksa
Order made in
W.P.(MD)No. 6877 of 2019
28.08.2023
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