Kerala High Court
K.S.R.T.C. vs R.T.A. on 25 November, 2004
Equivalent citations: 2005(2)KLT217
Author: K.M. Joseph
Bench: K.M. Joseph
JUDGMENT K.M. Joseph, J.
1. The Writ Petitioner, Kerala State Road Transport Corporation challenges Ext.P3. The complaint of the petitioner is directed against Ext.P4 by which the Regional Transport Authority, Kollam has granted renewal of regular permit on the route (inter-district) Kilimanoor Market Junction-- Kollam Andamukkom Private bus stand. According to the petitioner the grant of said permit cannot be countenanced in view of the fact that the said permit is against Ext.P2 approved scheme. The petitioner filed Ext.Pl objections against the grant of the renewal, but, it was, according to the petitioner, illegally overlooking the valid objections raised therein that the impugned decision has been taken. Ext.P2 scheme is dated 12.9.1961. Schedule I of the said scheme reads as follows:
"Routes as indicated in Annexure A and all routes connecting or passing through any two or more intermediate points of such routes".
The scheme is Trivandrum-Quilon-Kottarakkara-Trivandrum (Circular). The complaint of the petitioner is that the route as granted overlaps a distance of about 21.5 kms. The petitioner also complaints that the impugned grant is in violation of Ext.P3 Scheme. Ext.P3 is Trivandrum-Thrissur scheme. Therein also Schedule I provides as is provided in Ext.P2 scheme. Learned counsel appearing for the petitioner brought to my notice various decisions of the Supreme Court and also of this Court taking the view that once a scheme is approved and notified, a permit can be granted only in accordance with the terms of the said scheme. He drew my attention to the sketch produced along with the counter affidavit filed by the second respondent to point out that there is indeed overlapping along the notified route in respect of the grant made in the impugned decision. On the other hand the second respondent has filed a counter affidavit. The petitioner has not filed any reply affidavit to the counter affidavit. In the counter affidavit the second respondent has contended that what is objectionable as per Exts.P2 and P3 schemes relied upon by the petitioner is operation on the routes shown in Annexure A and all routes connecting or passing through any two or more intermediate points of such routes. He points out that the permit as issued to him in Ext.P4 would show that the relevant intermediate places as per the said notification are Parippally, Chathannur and Kottiyam. He would point out that the sketch would show that the route in question covers 1.5 kms. from Kalluvathukkal to Spinning Mill and 15 kms. from Thirumukku to Chinnakada in N.H.47. He also points out that the service does not touch Kilimanoor in the M.C. Road as alleged but Kilimanoor Market Junction in the Bye-route Parippally-Kilimanoor. It is further stated that even if Kilimanoor Market Junction is taken as Kilimannoor, the route terminates there and hence not objectionable as held by this Court in the decision reported in K.S.R.T.C. v. The Regional Transport Authority, Alleppey and Ors., 1991 (3) ILR Ker.40. He points out that there are several private stage carriages covering the portion from Thirumukku-Chinnakada on the N.H.47 and that it is unfair on the part of the petitioner to pick and choose the second respondent's service alone. Learned counsel for the respondents would also raise a contention that an effective alternate remedy was hence available to the petitioner in as much as it is open to the petitioner to approach the State Transport Appellate Tribunal. He espouses this contention by pointing out that the original authority was pleased to grant him the renewal vide Ext.P4 after being satisfied that the route for which the permit was granted does not offend the terms of Ext.P2 or Ext.P3 schemes. He would thus say that this being purely a factual matter, it is not open to the petitioner to invoke the extraordinary jurisdiction of this Court when an effective alternate remedy is available. Met with this situation, learned counsel for the petitioner invited my attention to the decision reported in B. Rajagopal v. S.T.A. Tribunal, AIR 1964 SC 1573, for the proposition that it is open to the petitioner to directly approach this Court in proceedings under Article 226 of the Constitution and that this is an appropriate case where the Court need not relegate the petitioner to the alternate forum. It is no doubt true that unlike in a writ of mandamus, it is certainly open to the party approaching for a writ of certiorari, to seek to entertain the petition even though there is alternate remedy. In other words, there is no rule that the party approaching for a writ of certiorari should be relegated to the alternate remedy. It is no doubt true that even if a Writ Petition is admitted if the Court feels at the stage that the matter is being heard that it is appropriate to relegate the petitioner to the alternate forum, the mere fact that the Writ Petition was admitted cannot stand in the way of the Court so relegating him to an alternate remedy. The contention of the respondent turns on the actual scope of the prohibition contemplated in the schemes Exts.P2 and P3. If indeed it is a matter which were to turn on, whether the route as granted under Ext.P4 violates the schemes in question for the reason that intermediate points are either touched or the route passes through the intermediate points, then I would have thought that it cannot be but appropriate to relegate the petitioner to avail itself of the alternate remedy provided under law. This is because, as contended for by the second respondent it cannot be said that the alternate forum provided in law in the form of revision to the STAT is inadequate. However, faced with this situation, learned counsel for the petitioner would contend that he is limiting his complaint to the contention that under Exts. P2 and P3 schemes no permit can be granted or renewed which will have the effect of a private operator traversing even a portion of the notified routes, namely, Exts. P2 and P3. In other words, his contention is that he will go by the sketch as produced by the second respondent as depicting the correct state of affairs in point of fact and he would contend that a mere perusal of the rough sketch would unambiguously indicate that indeed the impugned grant results in a private operator traversing the notified routes to the extent of merely 21.5 kms. He would say that this is impermissible having regard to the terms of the scheme and to the position obtaining at law as reflected by a catena of decisions referred to me. The counsel also referred me to Schedule II of Exts.P2 and P3 to indicate that what is contemplated under the schemes is running of the operation of transport services by the petitioner. He emphasis this with reference to Annexure A in both the cases.
2. Learned counsel for the second respondent on the other hand placed reliance on the decision of this Court reported in K.S.R.T.C. v. The Regional Transport Authority, Alleppey, 1991 (3) ILR Ker. 40. Interestingly, learned counsel for the petitioner also relied upon the said decision to contend that the impugned grant is unsustainable. It is important to notice the facts as involved in the above decision. It related to Quilon-Alleppey route. The private operator in that case was operating on the route Payippad to Oachira from the year 1951. The intermediate places as mentioned were Kavanad, Neendakara, Chavara, Edappally-Cottah, Karunagappally, Puthiakavu, Vavvakavu, Oachira, Kayamkulam, Kareelakulangara, Cheppad, Haripad, Karuvatta, Thottappally, Purakkad, Ambalappuzha, Punnapra and Kalaroode. The petitioner, namely, the K.S.R.T.C. objected to the renewal of the permit on the ground that the route of the operator overlaps the Nationalised route Alleppey-Quilon between Kayamkulam-Oachira District Border. The ground that on ingenious device was adopted by the Regional Transport Authority to make it appear that the scheme was being respected while granting renewal in favour of the private operator therein. It appears that the fact was that the Regional Transport Authority took the view that the intermediate places mentioned in the scheme in respect of the route Alleppey-Quilon being Kayamkulam and Oachira, there is nothing to prevent a renewal being granted by shifting the terminus from Oachira to the District Border, slightly towards Kayamkulam side. The Court found that the District Border and Oachira are fairly close to each other and no real or substantial distinction can be made and that by shifting the terminus from Oachira to the District Border, the Regional Transport Authority has circumvented the scheme. The scheme in question enacted a prohibition which is similar to the prohibition which is notified under Exts.P2 and P3 in this case also. The Court then proceeded to find that emphasis on intermediate points and not on the intermediate places. Learned counsel laid emphasis on the words in the judgment.
"The clear effect of the scheme therefore is the entire route Quilon-Alleppey being a nationalised route, overlapping on this route between any two points has the effect of offending the scheme. Therefore, by merely avoiding Oachira as the terminus and fixing the District Border as the terminus, the Regional Transport Authority has not succeeded in preventing overlapping of the route between Kayamkulam and District Border".
3. Learned counsel for the second respondent on the other hand would also brought support from the dictum laid down by this Court in the said decision by pointing out that the service was approved by Ext.P4 does not touch Kilimanoor in the M.C. Road, but Kilimanoor Market Junction in the Bye-route Parippally-Kilimanoor and even if Kilimanoor Market Junction is taken as Kilimanoor, the route terminates there and therefore not objectionable. He would further say that the relevant intermediate points as per the notifications are Parippally, Chathannoor and Kottiyam and none of those intermediate places are touched by the service. The intermediate points in relation to Ext.P2 scheme as indicated in Annexure A in respect of the route Trivandrum-Quilon Kottarakara-Trivandrum (Circular) are Kazhakootam, Attingal, Parippally, Chathannoor, Quilon, Kilikolloor, Kundara, Ezhukone, Kottarakkara, Ayoor, Nilamel, Kilimanoor, Venjarammoodu, Vattappara, Pattom. A perusal of Ext.R2(b) sketch would indicate that the route as approved does not appear to touch Parippally, Chathannoor or Quilon. But indeed from the point Kalluvathukkal to Spinning Mill the nationalised route is traversed by the second respondent's service, likewise from Thirumukku to Kottiyam. By the impugned grant the second respondent is permitted to operate along the route for a distance of about 4 kms. From the point Kottiyam till Chinnakkada there is indeed overlapping by the operation of the second respondent's stage carriage to the extent of 11 kms. In this state of admitted facts, the question therefore arises that even assuming that the second respondent's service does not either passes through or connect two intermediate points as mentioned in Schedule I in both Exts. P2 and P3 schemes, whether the grant is offensive for the reason that there is overlapping over the nationalised routes. For termination of this question it is necessary to find out what indeed does the schemes prohibit. There are different kinds of schemes which have been formulated by the State Transport undertaking under the provisions of Section 68 of the Motor Vehicles Act. As held by the Supreme Court once a scheme is approved and notified, it is to be treated as law and thereafter the existence or non existence of a right with the private operator will depend upon the terms of the schemes in question. There can be no quarrel with this proposition which has been established by an unbroken line of decisions. But the question is do Exts. P2 and P3 totally taboo overlapping of any kind in operation over the entire notified routes or is the interdiction limited to granting of permits in favour of private stage carriage operators in a manner where they would either touch two intermediate points or pass through two intermediate points. In other words, do the schemes in question by virtue of the fact that it uses the words routes as indicated in Annexure A in the respective schemes, declare the law to be that the private stage carriage operators cannot operate over any portion of the said routes as contended by the learned counsel for the petitioner. Learned counsel for the respondents would contend that this is not a total exclusion scheme. It will not be out of place to point out that in the State of Kerala in exercise of its statutory powers Rules were framed by the Government for the purpose of giving effect to right to use nationalised routes. The Rules made in the year 1960 provided for three different forms. Form No. 1 related to schemes intended to totally exclude private operators. They were known as total exclusion scheme. Form No. II on the other hand intended to partially exclude private operators. The third category of restriction was embodied in what is called supplementation scheme. It is the contention of the respondents that the schemes in question are not total exclusion schemes. In other words, the schemes in question do not completely exclude services by private operators. In short, according to the second respondent the schemes do contemplate services by private operators so long as they do not touch or pass through intermediate points as indicated in the schemes. I am not inclined to accept the extreme contention taken by the petitioner that the schemes Exts.P2 and P3 did not contemplate any private operator operating along the notified routes and that the bar is absolute.
4. The wording in Schedule I clearly contemplate that in respect of the routes covered by the said schemes no doubt there will be a bar as such. But having regard to the latter portion as stated in Schedule I in both the schemes it is clear that the framers of the schemes contemplated operators from the private sector being granted permits so long as the routes as applied for by them did not result in connecting or passing through two or more intermediate points. In other words, permits can be granted under Exts.P2 and P3 schemes as long as the route does not connect two or more intermediate points or pass through two or more intermediate points. Any other interpretation would result in rendering the latter portion of the routes in Schedule I redundant, superfluous and meaningless. In fact there have been many such schemes which are worded similarly as the schemes Exts.P2 and P3. One such scheme became the subject matter of a Writ Petition before this Court. O.P.9465 of 1983 decided by U.L. Bhat, J. as His Lordship then was dealt with the Alleppey-Ernakulam scheme. There in also the routes also shown as the routes as indicated in Annexure A and all routes connecting or passing through any two or more intermediate points of such routes. The route applied for in that case was Aroonmukkom-Shertallai via Aroor, Palliyarakavu, Aroor Temple Junction, Eramelloor, Ezhupunna, Vallethody, Nalukulangara, Chavadi, Thuravoor, Ponnamveli, Vayalar Junction, Valayar Bridge and Manorama Junction. This service was to start from or end at Sherthallai and pass through Thuravoor, Eramalloor also. Sherthallai, Thuravoor and Eramalloor was intermediate points on the nationalised route. The contention on behalf of the operators was that a new route would be objectionable only if it connects the intermediate points directly and that since new routes starts from Shertallai and proceeds to some distance along the nationalised route, joins the nationalised route and reaches Thuravoor. Thereafter it broke away from the nationalised route takes a different route and again joins the nationalised route to pass through Eramalloor. Therein this Court held as follows:
"If the reservation in Ext.P2 is "routes as indicated in Annexure A and all routes connecting any two or more intermediate points", the contention of second respondent would perhaps have been valid. The proposed route does not connect any two intermediate points such as Shertallai and Thuravoor or Thuravoor and Eramalloor. That is, it does not directly connect them. Therefore, it may perhaps be said to be unobjectionable. But the reservation in Ext.P2 is not merely to routes connecting intermediate points but also of "routes passing through any two or more intermediate points". This would be satisfied whenever a new route passes through any two or more intermediate points. The new route proposed by first respondent certainly passes through Shertallai, Thuravoor and Eramalloor. Therefore, it has to be regarded as objectionable. In order to attract the prohibition involved in the scheme it is not required that the new route must directly connect any two intermediate points".
The Court proceeded to hold that the permit issued to the party therein pass through two or more intermediate points and therefore the authority could not have granted the permit. In fact, pursuant to this judgment the said scheme itself was modified and the scheme as it presently obtains provides as follows:
"Routes as indicated in Annexure A and all routes connecting or passing directly along the line of the notified routes through any two or more intermediate points of such route".
The explanatory note to the said modified scheme reads as follows:
"(This is not part of the notification but to indicate its general purport) The High Court in O.P.No. 9465/83 have set aside the permits issued by the Regional Transport Authority, Alleppey to private bus operators in the route connecting or passing through Shertallai, Thuravoor, Kuthiathodu, Eramalloor in Alleppey-Ernakulam route which is a route notified under Section 68-D(2) of the M.V.Act.
Cancellation of the above permits in the route mentioned caused serious difficulties to the travelling public in the area. Regarding the difficulties faced by the travelling public, several representations were received by Government. Government have examined the matter and they have decided to modify the scheme of Road Transport Services approved by it in Notification No. 18824/T60/PW dated 11.11.1960. Hence this notification".
5. The limited complaint in this Writ Petition is not that it either passes or connects two or more intermediate points as approved in Ext.P4. This being the position, I am inclined to take the view that there is no merit in the challenge made to Ext.P4 grant of renewal of permit in favour of the second respondent merely on the ground that the route as sanctioned by Ext.P4 allows the second respondent to traverse portions of the routes mentioned in Exts.P2 and P3. The complaint arises out of a misconception of the true purport and scope of the scheme. I am inclined to agree with the view taken by this Court in O.P.9465 of 1983 referred to above. The decision of the Division Bench reported in K.S.R.T.C v. The Regional Transport Authority, Alleppey, 1991 (3) ILR Ker. 40, also turned on the peculiar facts and the Court in the said decision has not held as impermissible plying of the stage carriage without passing or connecting intermediate points. All the decisions cited by the learned counsel for the petitioner tuned upon the construction to be placed on the terms of the schemes in question. Learned counsel placed particular reliance on the decisions of the Supreme Court reported in Gajraj Singh v. State Transport Appellate Tribunal, AIR 1997 SC 412, as also in U.P. State Road Roadways Transport Corporation v. Anwar Ahmed, (1997)3 SCC 191. In the decision in U.P. State Road Roadways Transport Corporation's case the Court reiterates that once a scheme has been approved and notified, the right to ply stage carriages by private operators on the notified area, routes or portion thereof is totally frozen. However, the Court further proceeded to hold as follows:
"Therefore, they have no right to claim any grant of stage carriage, temporary or contract carriage permits thereunder on the said notified area, routes or portions thereof except to the extent saves by the scheme with restrictions imposed thereunder".
The case related to the grant of a temporary permit in violation of the scheme. It would appear that the scheme in question cannot be likened to the schemes which have arisen for my consideration. As far as the decision of the Supreme Court in Gajraj Singh's case is concerned the Supreme Court has certainly after exhaustively reviewing the case law on the point proceeded to reiterate the scheme as supreme and no rights can be upheld if they are not permissible under the scheme. Learned counsel for the petitioner has not been able to point out anything in the said decision of the Supreme Court which militates against the view which I have now expressed in regard to Exts.P2 and P3 schemes. The decision of the Supreme Court in Adarsh Travels Bus Service v. State of U.P., (1985) 4 SCC 557, no doubt set at rest any controversy that may arisen in regard to the effect of a scheme which is approved and duly published under the Motor Vehicles Act. Therein Their Lordships states as follows:
"A careful and diligent perusal of Section 68C, S.D(3) and Section 68-FF in the light of the definition of the expression 'route' in Section 2(28-A) appears to make it manifestly clear that once a scheme is published under Section 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 or 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 authorised 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 to him covered the notified route or area".
6. I am of the view that the said pronouncement came to be made in the context of the scheme which left no room for any doubt that the exclusion is unambiguous as it was complete. It cannot be open to doubt that as held by the Apex Court everything turns on the terms of the particular scheme in question. Having regard to the terms of Exts.P2 and P3 scheme and having regard to the view taken by this Court in O.P.9465 of 1983 and the decision of this Court reported in K.S.R.T.C. v. The Regional Transport Authority, Alleppey, 1991 (3) ILR Ker. 40, I am of the view that the contention advanced on behalf of the petitioner that Exts.P2 and P3 prohibits traversing of even a portion of the routes mentioned cannot be accepted.
Accordingly the Writ Petition fails and it is dismissed. There will be no order as to costs.