Karnataka High Court
P. Subbarayappa vs The Regional Transport Authority, ... on 29 September, 1988
Equivalent citations: AIR1989KANT297
ORDER
1.This writ petition, coming on for preliminary hearing after notice to respondents, is taken up for final hearing by consent of the learned counsel for both the parties and disposed of by this order.
2. Sri P. R. Ramesh, learned Government Pleader, is directed to take notice for respondent-1.
3. The facts which are necessary for the disposal of this petition are as follows:
The petitioner is an existing operator operating the transport service from Bangalore to Nagamangala and back under permit No. P.St.P.2/88-89 via Tavarakere, Magadi, Huliyurdurga, Amruthur, Haradanahalli and Nagamangala.
3.1. The second respondent is operating his transport service from Bangalore to Mandya via Kunigal, Amruthur, Ramenahalli Cross, Shilpapura, Mylarpatna, Nagamangala T.B., Nagamangala. and on to Mandya under permit No. P.St.P.2/81-82 issued by the first respondent.
3.2. The Regional Transport Authority, Mandya, respondent-1, initiated proceedings by exercising his powers under S. 48(3)(xxi) of the Motor Vehicles Act, 1939, and passed a resolution on 10-8-1988 curtailing the route of 60 kms., to 19 kms., and ordering deviation of the route via Ramenahalli Cross, Haradhanhalli, Kotebetta, Palagrahara, instead of Shilpapura, Mylarapatna, Alathi. Being aggrieved by the said resolution ordering curtailment and deviation, the petitioner has presented this petition. .
4. According to the petitioner, no notice was issued to him by the 1st respondent and no opportunity was afforded to him to file objections and also to be heard, before passing the impugned resolution though his legitimate interest was in jeopardy.
5. The question that arises for consideration in this petition is:
Whether the resolution dated 10-8-1988 passed by the 1st respondent under S. 48(3)(xxi) of the Act is sustainable in law?
6. It was contended by the learned counsel for the petitioner that the principles of natural justice require that even when action had to be taken by the respondent under S. 48(3)(xxi) for varying the conditions of the permit, it was obligatory that the 1st respondent should, give notice of not less than one month not only to the existing operator who is directly concerned with the curtailment and deviation, but also to such other operators who are likely to be affected by such curtailment and deviation of the route.
7. It was also contended that not only the petitioner was not notified despite the statutory obligation but also the 1st respondent did not comply with the requirements of S. 57(8) read with R. 104(A) of the Rules.
8. It was maintained by the learned counsel for the petitioner that the principle of law had been well-settled by a number of decisions of this Court that even the existing operators, who are likely to be affected by the exercise of the powers under S. 48(3)(xxi), should also be notified in addition to the person who is directly concerned with the route in respect of which deviation and curtailment are granted suo moto by the 1st respondent on receipt of application or representation from the travelling public.
9. On behalf of the 2nd respondent it was contended, by the learned counsel, that the petitioner has effective alternate remedy by way of preferring an appeal before the State Transport Appellate Tribunal against the impugned resolution, under S. 64(l)(b) of the Act, and, therefore, this writ petition should not be entertained.
10. It was also contended by the learned counsel for the second respondent that the petitioner is not an aggrieved person since he is not at all affected either by the curtailment or by deviation of the route, both in substance and effect.
11. It was further contended that S. 48(3)(xxi) does not contemplate issue of notice to the existing operators who are likely to be affected and, least of all, to the petitioner. In the statement of objections filed by the 2nd respondent, based on allegations of fact, it is sought to be made out that even with regard to the timings there is virtually no conflict of interest between the petitioner and the 2nd respondent.
12. Finally, it was submitted that the principles of natural justice are not at all attracted to the facts of the instant case.
13. In order to decide the controversy, it is necessary to refer to S. 48(3)(xxi) of the Act, which reads as follows:
"48(3) The Regional Transport Authority, if it decides to grant a stage carriage permit may grant the permit for a service of stage carriages of a specified description or for one or more particular stage carriages, and may, subject to any rules that may be made under this Act attach to the permit any one or more of the following conditions, namely: -
(xxi) that the Regional Transport Authority may, after giving notice of not less than one month,-
(a) vary the conditions of the permit;
(b) xx xx xx xx Provided that the conditions specified in pursuance of Cl. (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such variation shall be made only after the Regional Transport Authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof."
Though this provision of law contemplates giving of notice of not less than one month, it does not specifically state to whom the notice should be issued. Since it is a power exercised not in response to the applications of the permit holders, but on the representation made by the members of the travelling public to the registering authority, it would be necessary, in my opinion, that notice should be issued not only to the permit holders in respect of whose route the curtailment and deviation is to be ordered but also to the existing operators whose rights are likely to be affected as a result of the proposed action. It is no doubt true that the legislature intended that any variation in the condition of the permit proposed to be ordered under the provisions of this section shall be so done only after the registering authority is satisfied that such variation will serve the interest of travelling public and that it is not expedient, to grant a separate permit in respect of the original route so varied or of part thereof. The Regional Transport Authority, before taking a decision to grant variation in the conditions of the permit, should notify the existing permit holders, such as the petitioner, and also take into consideration the necessary factors including public convenience, need and the timings in relation to the balance to be struck with the timings of other operators already operating on the route. Without hearing persons likely to be affected, by making variation in the conditions of the permit, if an order is passed by the authority in my opinion , such an order will not be less than arbitrary. When a particular right has already become vested in a permit holder consequent to the grant of a regular permit in respect of a particular route governed by certain conditions regulating operation of his services within the limit of the timings assigned by the authority, such a right, which has become vested in the operator, cannot be taken away or tinkered with by the authority without conceding the right of hearing to the operators who are likely to be affected. It is no doubt true that the ultimate object to be achieved in granting permit or variation in the condition of the permit is governed by what is known as public convenience or public interest, and that it is the only object sought to be achieved. But the statutory provision regulating the grant of permit or variation in the conditions of the permit cannot be lightly exercised under S. 48(3)(xxi) of the Act. If the argument that under S. 48(3)(xxi) no notice be given to the existing operators has to be accepted, it would lead to the possibility of securing variation in the conditions of permit through public representations by the interested permit holders instead of following the procedure prescribed under S. 57(8) of the Act and the very purpose of the provisions of S. 57(8) would be frustrated. Such contrivances, if allowed, would open Pandora's box.
14. Apart from the above considerations there is a ruling of this Court in B. Gangadharaiah v. Karnataka State Transport Appellate Tribunal, (1980) 1 Kant LJ 313, wherein an identical question was considered by this Court :
"Even though the order granting variation of the conditions of the permit attaching to the permit further conditions under S. 48(3)(xxi) of the Act, may be in the nature of an administrative order and may, in the interest of the travelling public, be necessary to do so, nevertheless, it will not absolve the R.T.A. from its duty to afford an opportunity to the other operators who are likely to be affected by granting such variations."
This decision of the learned single Judge came to be affirmed in writ appeal by a Division Bench of this Court reported in (1980) 1 Kant LJ Sh. Notes of Cases Item No. 157 stating that:
"The R.T.A. should not grant variation of the conditions of the permit permitting the operator to have his stage carriage in two more places on the route, without notice to persons operating in the same route or portion thereof."
No decision contrary to the one stated above in this behalf by this Court subsequent to it is brought to, any notice.
15. It is no doubt true that the power exercised by the authority under S. 48(3)(xxi) is of an administrative nature. Even though the authority exercised its administrative power, if it is likely to affect the rights of other operators, it is necessary that the administrative authority should exercise such power not arbitrarily but fairly, and not unilaterally but after issue of notice and after affording reasonable opportunity of hearing to the persons whose rights are likely to suffer. According to the recent trends in the application of principles of administrative law very little difference is made between the power exercised by the administrative authority and the judicial authority so long as the power so exercised is likely to have a direct impact on the rights of persons interested. From this view point also I am of the opinion that ' the impugned resolution is not capable of being sustained.
15-A. It was very strongly argued by the learned counsel for the 2nd respondent that the petitioner has effective alternative remedy and without exhausting the same available to him under S. 64(l)(b) of the Act he cannot approach this Court under Arts. 226 and 227 of the Constitution and this Court should not entertain the same. The scope of S. 64(l)(b) of the Act, besides other provisions of law, came up for consideration before this Court in B. B. Mali v. Sridhar Rao (sic). This Court held that CL (b) of sub-section (1) of S. 64 does not confer unrestricted right of appeal to a party aggrieved by any condition of permit for two reasons, the first being that the condition ignores the distinct position which S. 57(8) of the Act affords to an applicant for variation of the route as compared to applicants for variation of other conditions; and, secondly such a condition would render Cl. (f) otiose and superfluous. It was also held that the aggrieved person can, however, prefer an appeal as regards variation of the condition relating to the timings inasmuch as the obligation of the variation of the timings is not one of the conditions under sub-see. (8) of S. 57 of the Act.
16. In a Division Bench ruling of this Court in Karnataka State Road Transport Corporation, Bangalore v. Karnataka State Transport Authority, it was held as follows (at p. 10):
"Even where an equally efficacious alternative remedy exists, where, however, fundamental rights are affected, where rules of natural justice are violated or where there is a failure on the part of the authority concerned to confine itself within the bounds of its legitimate jurisdiction or where there is a failure to exercise a jurisdiction vested in it or where there is an error of law apparent on the face of the record, a person aggrieved can invoke the extraordinary jurisdiction of this Court under Art. 226 without reference to any remedy however efficacious it be.The existence of an alternative remedy does not oust the jurisdiction of this Court under Art. 226. The rule that the Court does not entertain a petition under Art. 226 when there is an equally efficacious alternative remedy is not a rule of law; but is a principle the Courts have evolved for the guidance of their own discretion."
In fact, in the said case it was contended by the learned counsel for the KSRTC that the order impugned in the writ petition was one respecting which an appeal was provided under S. 640)(a) of the Act was a selfcontained Code which created new rights and remedies and prescribed a procedure for enforcement of those rights and remedies and that having regard to the frame of the writ petition and the nature of the relief sought the prayer in substance was one for issue of a writ of mandamus directing the performance of a statutory duty and that the Court will, as a general rule and in exercise of its discretion, refuse the issue of a writ of mandamus when there is a specific remedy at law which is both beneficial and effective.
17. Learned Counsel for the 2nd respondent invited my attention to an unreported decision of this Court in Hanuman Transport Co. (P.) Ltd., Udupi v. R.T.A., Mangalore, (Writ Petitions Nos. 17177 to 17180 and 17226 of 1987 - Disposed of on 2-12-1987) wherein it was held that:
"But, there is no extraordinary circumstance for the petitioner to by-pass the provisions of appeal and invoke writ jurisdiction under Art. 226 of the Constitution. In this view the proper thing for the petitioners is to file an appeal before the competent authority under S. 64(l)(b) of the M. V. Act."
18. Admittedly in the instant case, the impugned order was passed by the 1st respondent under S. 48(3)(xxi) of the Act in relation to grant of curtailment and deviation without notice to the petitioner and without hearing him. This by itself does commend to me, particularly in view of the fact that the decision of another learned single Judge of this Court on a similar question came to be confirmed in appeal and the view was that in such circumstances the authorities are bound to issue notice to persons who are likely to be affected.
19. The learned counsel for the 2nd respondent also relied on a decision of the Supreme Court in Ayyaswamy Gounder v. Munnuswamy Gounder, wherein it was held that (at p. 1792) "If the learned single Judge did not agree with that decision he should have referred the matter to a larger Bench and the judicial propriety or decorum did not warrant holding contrary to the decision of the same High Court by him."
I do not think that the above observation is relevant to the facts and the circumstances of this case because the opinion which was expressed was based on a decision of the Division Bench of this Court rendered and reported in KSRTC v. KSTA, , which was subsequently confirmed in appeal by the Supreme Court.
20. As regards the contention of the petitioner that he is not an aggrieved person and that there are facts which go to show that his rights are not affected are the points which have to be looked into and investigated by the 1st respondent, after issuing notice to the petitioner and after affording him a reasonable opportunity of hearing. I may again emphasise that under S. 48(3) (xxi) the petitioner has a right to be heard and that cannot be taken away by the 1st respondent. Unless an opportunity is given to the petitioner it will not be possible to determine the question whether the petitioner is an aggrieved person or not. These are questions of fact which should be necessarily gone into by the 1st respondent. In view of the above discussion, it is not necessary for me to go into other points urged in this writ petition.
21. In the result, this writ petition is allowed and the impugned resolution is quashed. The 1st respondent is directed to issue notice to the petitioner and other existing operators. He is also directed to give reasonable opportunity of hearing to the petitioner and others who are similarly placed and decide the matter on merits and in accordance with law. He is further directed to consider and dispose of the matter within a reasonable time.
22. Learned counsel for the 2nd respondent submitted that this order may be stayed for a reasonable period so as to enable him to obtain a certified copy of this order to prefer an appeal against the same. I do not think that it is feasible and reasonable to grant order of stay. His request is rejected.
23. Petition allowed