Karnataka High Court
K. Jagadeesh Reddy vs Karnataka State Transport Authority on 27 April, 2015
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF APRIL 2015
PRESENT
THE HON'BLE MR.D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT APPEAL NOS. 2932 OF 2014 & 3507 OF 2014 (MV)
BETWEEN :
K. JAGADEESH REDDY
AGED ABOUT 47 YEARS
S/O LATE T.N RAMALINGA REDDY,
PROPRIETOR, MADANAPALLI MOTORS
MADANAPALLI,CHITTUR DISTRICT
ANDHRA PRADESH - 517 325.
... APPELLANT
(By Sri. P.S. RAJAGOPAL, SR. ADV., FOR
SRI. M.E NAGESH, ADV.,)
AND
1. KARNATAKA STATE TRANSPORT AUTHORITY
PRESENTLY AT BMTC BUILDING,
K H ROAD,
BANGALORE - 560 027.
BY ITS SECRETARY
2
2. KARNATAKA STATE ROAD TRANSPORT
CORPORATION, CENTRAL OFFICE
K H ROAD, SHANTINAGAR,
BANGALORE - 560 027.
BY ITS MANAGING DIRECTOR
3. G.V CHANDRASHEKAR
S/O G.T VENKATASWAMY REDDY,
AGE MAJOR, PROPRIETOR,
VINAYAKA MOTOR SERVICE,
A.V ROAD, KALASIPALYAM
BANGALORE - 560 002.
... RESPONDENTS
(BY SRI. R. DEVDAS, PRL. GOVT. ADV. A/W
SMT. SHWETHA KRISHNAPPA, HCGP FOR R1;
SRI. S. PRAKASH SHETTY, ADV., FOR C/R-2;
R3 SERVED THROUGH HAND SUMMONS -
UNREPRESENTED)
-0-0-0-0-0-
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
NO.3910/2005 DATED 10/10/2014 AND ETC.,
THESE WRIT APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT, THIS DAY, RAM
MOHAN REDDY J., DELIVERED THE FOLLOWING:
3
JUDGMENT
The unsuccessful petitioner in W.P.3910/2005, aggrieved by the order dated 10.10.2014 of the learned Single Judge dismissing the petition has presented these intra court appeals invoking Section 4 of the Karnataka High Court Act, 1961.
2. The learned Single Judge answered in the negative the following question:
" Whether the findings recorded by the tribunal holding that grant of countersignature to the stage carriage permit of the petitioner for the route Tirupati to Bangalore and back, was illegal as it overlapped the approved Kolar Pocket scheme, as modified from time to time warranting interference by this court ?"4
3. Facts briefly stated are :-
I. T.N.Ramalinga Reddy, father of the appellant obtained a stage carriage permit bearing No.33/65 issued by the State Transport Authority, for short 'STA', Andhra Pradesh, valid from 14.12.1965 to 13.12.1970 for the route Tirupati to Bangalore and back (one round trip) under the Motor Vehicles Act, 1939 (Central Act No.4/1939) for short 'MV Act', duly countersigned by the STA, Bangalore.
II. The Government of Mysore issued notification dated 10.1.1968 and exercising jurisdiction under subsection (3) of Section 63-D of MV Act, published an approved scheme, known as 'Kolar Pocket Scheme', a route scheme, creating a monopoly in the 5 State transport undertaking on specified routes in the State of Karnataka, rendering the stage carriage permits of private operators, ineffective insofar as the overlapping portion of the notified route, while treating the said permit holder as a 'saved operator'. T.N.Ramalinga Reddy was a 'saved operator' being the holder of the stage carriage permit No.33/65 and the route overlapping the notified route was rendered ineffective.
III. The Government of Karnataka published in the gazette dated 1.9.1975, the notification dated 28.08.1975, being the agreement entered into with the Government of Andhra Pradesh to regulate the operation of stage carriage services on 6 inter-state routes between the two States, exercising jurisdiction under Subsection (3B) of Section 63 of the MV Act, over grant of countersignature of permits. Part-A of the appendix is a statement showing the inter- state routes to be operated by Karnataka operators while Part-B by Andhra Pradesh operators. Sl.No.35 in Part-B makes reference to the route from Tirupati to Bangalore via Peelru, Kalkeri, Chintamani, Kaivara cross, H-cross, Vijayapura, Devanahalli, Yelahanka, Hebbala, for a distance of 138.4 kms in Andhra Pradesh and 135.2 kms in Karnataka, totaling to 273.6 kms, with a minimum of one permit and a maxim of two and a minimum of one round trip and a maximum of two, as also the corresponding minimum and maximum 7 number of daily services in kilo metres, within both States.
IV. The father of the appellant filed an application on 21.6.1983 before the STA, Hyderabad for grant of fresh stage carriage permit for the route Tirupati to Bangalore with one round trip in the existing vacancy at Sl.No.35 in Part-B of the appendix to the agreement published on 1.9.1975, on the premise that he was a 'saved operator' under the 'Kolar Pocket Scheme' operating one round trip on the said route under permit No.33/1965. That application though rejected at the first instance was allowed on 21.6.1983, which order was called in question by the 2nd respondent- Karnataka State Road Transport 8 Corporation, for short 'KSRTC', as also by the Andhra Pradesh State Road Transport Corporation, for short 'APSTRC' in R.P.Nos.185 and 186, respectively, before the State Transport Appellant Tribunal, for short 'STAT', Andhra Pradesh, whence by common order dated 20.1.1984, was allowed and proceeding remitted for reconsideration. On remand, the application when rejected by order dated 20.4.1989, was called in question in W.P.17015/1989 before the High Court of Andhra Pradesh, during the pendency of which the father of the appellant was reported dead and appellant substituted. That petition was allowed by order dated 19.7.1989 and the proceeding remanded. 9 V. On remand the STA, Andhra Pradesh having rejected the application in its meeting held on 16.10.1989, when challenged in Appeal No.8/2000 before the STAT, Hyderabad, was allowed by order dated 23.8.2002 and proceeding remitted for fresh consideration. The STA, Andhra Pradesh, in its meeting held on 7.2.2004 granted the stage carriage permit in the existing vacancy at Sl.No.35 in Part-B of appendix to the inter-state agreement under the notification dated 28.8.1975 and issued permit bearing No.PSP/1/STA/04 valid from 24.3.2004 to 23.3.2009. VI. Appellant's request for countersignature when acceded by the STA, Bangalore on 15.6.2004, though challenged in Writ Petition by one Gopalakrishna, was rejected 10 on the ground of availability of alternative remedy, whereafterwards, a revision petition though filed was not pressed.
W.P.31958/2004 filed by the 2nd respondent-KSRTC was allowed by Order dated 30.8.2004 and proceeding remitted. On remand, the STA, Bangalore by order dated 15.09.2004 granted countersignature and issued an endorsement on 1.12.2004. The order and endorsement when called in question by KSRTC and the 3rd respondent, numbered as R.P.Nos.537 and 659 of 2004, respectively, the STAT, Karnataka by common order dated 12.1.2005 allowed the petitions and set-aside the countersignature.
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VII. That common order when called in
question by the appellant in
W.P.3910/2005, was confirmed by the
learned Single Judge in the order dated 10.10.2014 impugned herein, dismissing the petition.
3A. Although learned senior counsel for the appellant makes reference to several reported opinions of the Apex Court and that of this Court in relation to the provisions of the M.V.Act, suffice it to notice relevant provisions and decisions as are applicable to the lis brought before Court.
4. Chapter IV-A in the M.V.Act being special in relation to State Transport Undertaking, the non obstante clause in Section 68-B makes the chapter, rules and orders made therein applicable 12 notwithstanding anything inconsistent in Chapter- IV or any other law for the time being in force or any other instrument having effect by virtue of any such law. Section 68-C provides for preparation and publication in the official gazette, as the State Government may direct, of Scheme of Road Transport service of a State Transport Undertaking whether to the exclusion, complete or partial, of other persons or otherwise, giving particulars of the nature of service proposed to be rendered, the area or route proposed to be covered. Section 68-D provides for objections to the Scheme and the publication of an approved scheme. Section 68-E provides for cancellation or modification of the scheme. Section 68-F provides for issue of permits to the State Transport undertakings. 13
5. Section 68-FF restricts the grant of permits in respect of a notified area or notified route whereunder permits are not to be granted except in accordance with the provisions of the Scheme. The proviso therein states that where no application for permit is made by the State Transport undertaking, in respect of any notified area or notified route in pursuance of an approved scheme, the Authorities may grant temporary permits to any person in respect of such notified area or route with a condition that such permit shall cease to be effective on the issue of a permit to the State Transport undertaking in respect of that area or route.
6. The Government of Mysore exercising jurisdiction under Section 63-D(3) of the M.V.Act issued a notification dated 10.1.1968 and published 14 the approved scheme, the schedule to which reads thus:
SCHEDULE
(a) xxxx Xxxxx
(b) xxxx xxxxx
(c) xxxx xxxx
(d) Whether the services The State Transport are to be operated by the Undertaking will operate State Transport service on all the routes to Undertaking to the the complete exclusion of exclusion, complete or other persons except that partial or other persons (a) That existing permit or otherwise. holders on the routes, may continue to operate such routes, subject to the condition that their permit shall be rendered ineffective for the overlapping portion of the notified routes; and
(b) xxxxx
(e) to (s) xxxxx Xxxxxx 15
7. The State Government exercising jurisdiction under Section 68-E of the M.V.Act issued a notification dated 10.1.1980 and published the modification of the approved scheme in the notification dated 10.1.1968 of the State Transport undertaking of Kolar sector, the schedule to which runs thus:
SCHEDULE
(d) Whether the services The State Transport Undertaking will operate the are to be operated by the services on all the routes to State Transport the complete exclusion of other persons except the Undertaking to the following:
complete exclusion or a. Operation of services on partial or other persons or inter-state routes by the otherwise. State Road Transport Corporation of other States established under the Road Transport Corporation Act, 1958 (Central Act 64 of 1950) or registered under the Companies Act, 1956 (Central Act 1 of 1956);
b. That the existing operators whose permits (routes) overlap the road 16 portion from Basepalli to Chelur and Pathapalaya Cross (M.S.6/84) to 22) only may continue to operate such routes subject to the condition that their permit be rendered ineffective for this overlapping portion only;
c. The operation of services by the permit holders who have already been granted permits by the Transport Authorities on the date of publication of the modified scheme on inter-state agreement entered into by the Government of any other State provided that the operator on each route shall not be entitled to pickup and set down passengers in such portion of the routes which overlaps on any portions of the Notification.
8. The Government of Karnataka having noticed that no exemption is provided in the notification dated 10.1.1980 for operation of private 17 services by private operators who have been granted permits by Transport Authorities to ply their services on , inter-district and intra regional routes, proposed to extend the said benefit to such private operators over routes lying in district of Kolar overlapping the notified routes of Kolar approved scheme as on 31.7.1999, exercised jurisdiction under Subsection (1) of Section 102 of the Motor Vehicles Act, 1988 (Central Act 59/1989) the Government of Karnataka modified the approved scheme dated 10.1.1968 and dated 10.1.1980 by notification dated 7.11.2003, the relevant portion of which reads thus:
"(d) in the case of permit holders to whom permits are already granted and issued by Transport Authorities after modification of the scheme dated 10.01.1980 on Inter-State, Inter-District 18 and Intra-Districts routes overlapping the road section of the notified routes lying in the scheme of Kolar as on 31.07.1999 and also on the date of the Draft Notification i.e., 27.05.2003, they are exempted to operate their service. Notwithstanding anything contained in the Bangalore and Anekal Schemes, with a condition that they shall not be entitled to pickup or set down passengers in such portion of the notified route lying in the Scheme of Kolar."
9. Chapter -IV relates to control of transport vehicles. Section 42(1) states that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accordance with the conditions of a permit 19 granted or countersigned by a regional of STA or the Commissioner authorizing the use of the vehicle in that place in the manner in which the vehicle is being used.
10. Section 57 provides for procedure in applying for and granting contract carriage permit or private carrier permits. Subsection (2) states that an application for stage carriage permit shall be made not less than six weeks before the date on which it is desired that permit shall take effect. Subsection (8) provides for an application to vary the conditions of any permit other than a temporary permit by the inclusion of a new route or routes, in case of stage carriage permit by increasing the number of trips above the specified maximum, etc. Section 63(3-A) stipulates that every proposal to enter into an agreement between the States, to fix 20 the number of permits proposed to be granted or countersigned in respect of each route or area to be published by each of the State Government in the official gazette and call for representations in that regard. Subsection (3-B) states that every agreement arrived at between States shall insofar as it relates to grant of countersignature of permits, be published in the official gazette by each of the State concerned and the respective Authorities shall give effect to it.
11. The State of Karnataka published the Inter-State agreement dated 28.8.1975 entered into with the Government of Andhra Pradesh, in the official gazette on 1.9.1975 whereunder, Item No.35 and 71 in Part-B and Part-A of the appendix, respectively, in relation to the route Tirupati to Bangalore reads thus:
21
No. of permits No. of Round Route length in Kms. No. of Daily Services in Kms.
Buses trips
Sl.
Route
No. Andhra Andhra Pradesh Karnataka Total
Prades Karnataka Total Min. Max. Min. Max. Min. Max Min. Max Min. Max
h
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
35 Thirupathi to 138.4 132.4 273.6 1 2 1 2 276.8 553.6 270.4 547.2 540.8 1094 APPE
Bangalore via Peleru NDIX
Kalkiri, Chintamani, PART
Kaiwara Cross, - 'B'
H.Cross, Vijayapura,
Devahanahalli,
Yelahanka, Hebbala
71 Tirupati to Bangalore 141.6 135.2 276.4 1 1 1 1 283.2 283.2 270.3 553.6 270.4 553.6
(via) Chandragiri,
APPE
Naidragunta, Pakala, NDIX
Kallur, Peler,
PART
Chintaparthi, - 'A'
Voyalpadu,
Madanapalli,
Royalpad, Tadigal
Cross, H.Cross,
Vijayapura,
Devanahalli and
Yelahanka
22
12. In T.N.Raghunath Reddy -v- Mysore State Transport Authority1, the Apex Court having regard to the effect of agreements vis-à-vis the provisions of Chapter IV-A of the MV Act, observed thus:
" 15. Regarding the third point, we were unable to appreciate how an agreement overrides the provisions of Chapter IV-A. The agreement is not law and to hold that an agreement overrides Chapter IV-A would be to completely disregard the provisions of Section 68-B of the Act which provides that "the provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law." In this connection reference was made to Article 162 and 1 AIR 1971 SC 1662 23 Article 298 of the Constitution. But we were unable to appreciate what relevance these articles have to the point at issue. Assuming that a State has power to enter into agreement with another State in exercise of its executive powers under Article 162, and under Article 298 it can carry on trade or business, we are unable to see what light these facts throw on the question before us."
13. In the light of the aforesaid statutory provisions, the scheme and its modification, it is needless to state that the non obstante clause in Section 68-B, coupled with Section 68-FF imposing a restriction in the grant of permit in respect of notified route, subject to the provisions of the scheme, the provisions of Chapter IV relating, more appropriately Section 68(34) and (3B) in the matter of the Inter-State agreement are inapplicable. 24
14. In M/s Adarsh Bus Travels -v- State of U.P.2, the Apex Court at paragraph 6 observed thus:
" A careful and diligent perusal of Section 68-C, S.68-D(3) and S.68-FF in the light of the definition of the expression 'route' , in S.2(28A) appears to make it manifestly clear that once a scheme is published under S.68-D in relation to any area or route or portion thereof whether to the exclusion, complete or partial of other persons or otherwise, no person other than the State Transport undertaking may operate on the notified area of notified route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorized so to do by the terms of the scheme itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit as originally granted 2 AIR 1986 SC 319 25 to him covered the notified route or area. Xxxxx "
Further the Apex Court having regard to the pernicious practice followed by Transport Authorities compelled the following observation:
" 6. xxxx on the other hand it is quite well known that under the guise of the so- called 'corridor restrictions' permits over longer routes which cover shorter notified routes or 'overlapping' parts of the notified route are more often than not misutilised since it is next nigh impossible to keep a proper check at every point of the route. It is also well known that often times permits for plying state carriages from a point a shorter distance beyond one terminus to a point a shorter distance beyond another terminus of a notified route have been applied for and granted subject to the so called 'corridor restrictions' which are but mere ruses or traps to obtain permits and to 26 frustrate the scheme. If indeed there is any need for protecting the traveling public from inconvenience as suggested by the learned counsel we have no doubt that the State Transport undertakings and the Government will make a sufficient provision in the scheme itself to avoid inconvenience being caused to traveling public."
15. The approved Scheme and its two modifications renders ineffective all stage carriage permits operating on the routes under the said Scheme on the date of the notification, insofar as they relate to overlapping portion of the notified routes. It is in this context that the permit holders operating services on such routes are termed as 'saved operators'. If regard is had to the aforesaid scheme, provisions of the statute and observations of the Apex Court, it is obvious that a 'saved operator' exempt from the operation of the scheme 27 is entitled to continue to operate services with the existing number of trips in terms of the stage carriage permit, from the date when the scheme was published.
16. In the facts noticed supra, appellant's father was operating stage carriage service of one round trip on route Tirupati to Bangalore under stage carriage permit NO.33/65, as on the date of the approved Scheme under the first notification dated 10.1.1968, being a 'saved operator' was entitled to continue to operate one round trip on the said route, however, with corridor restriction not to pickup or set down passengers on the notified route.
17. The application dated 21.6.1983 filed by the appellant's father for a fresh grant of permit for 28 second round trip for the route Tirupati to Bangalore in view of the Inter-State agreement dated 28.8.1975, providing for a maximum of two permits and two round trips, when rejected was subject matter of proceedings before the Transport Authorities of the State of Andhra Pradesh, as well as, the High Court of Andhra Pradesh, leading to the STA, Hyderabad making a fresh grant of stage carriage permit on 7.2.2004 for one more round trip from Tirupati to Bangalore. In terms of the scheme dated 10.1.1968 duly modified on 11.1.1980 and 7.11.2003, since the appellant's father being a 'saved operator' entitled to continue to operate the service on the route Tirupati to Bangalore for one round trip, was disentitled to a fresh grant of permit on 7.2.2004 for another round trip, and as a necessary consequence was not entitled to a 29 countersignature of the permit by the STA, Bangalore.
18. In the facts and circumstances, the submission of the learned senior counsel that since Sl.No.35 in Part-B of the Appendix to the agreement dated 1.9.1975 provides for two buses and two round trips as the maximum and therefore, STA, Hyderabad granted a fresh stage carriage permit with one round trip, being a 'saved operator' on the notified route in the 'Kolar Pocket scheme' was justifiably rejected both by the STAT, Karnataka and the learned Single Judge.
19. A faint submission that the second round trip between Tirupati and Bangalore was claimed by the appellant by way of increasing the number of round trips to the stage carriage permit No.33/65 is 30 noticed only to be rejected. To the query to furnish a copy of the application dated 21.6.1983 of T.N.Ramalinga Reddy to ascertain as to whether it was for grant of fresh permit for one round trip from Tirupati to Bangalore or to increase the number of round trips to the stage carriage permit No.33/65, learned Senior counsel was unable to place the same on record.
20. The fallacy in the submission of the learned senior counsel is apparently noticeable from the following:
a) The order dated 7.2.2004 of the STA, Hyderabad in R.No.10265/B1 granting fresh stage carriage permit with one round trip from Tirupati to Bangalore and not as a second round trip to the stage carriage permit No.33/65 by way of increase in the number of trips, observed thus:31
"Since the applicant being an existing operator on this route, he is entitled for grant of second permit as per the provision available in the agreement. Hence, the applicant is granted permit on the route Tirupati to Bangalore in existing vacancy."
b) The statement of objections filed by the respondents, arraigned as 2nd respondent in R.P.No.537/2004, at paragraph 4 states thus:
"4. xxxx there was one more vacancy for one bus and one round trip for which the 2nd respondent have filed an application for the grant of the permit. The STA granted the permit in the vacancy found in Sl.No.35 of Appendix-B and in the proceedings No.R.10265/D1 dated 7.2.2004. In pursuance of the said grant to the respondent has been issued with permit No.1/STA/04 valid upto 23.3.2009, covered by vehicle No.AP 03/W-468 to operate on the route referred to above."32
The learned Single Judge, in our considered opinion, was fully justified in rejecting the writ petition by the order impugned.
Appeals devoid of merit, rejected.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE ln.