Kerala High Court
The Secretary, Changanacherry Taluk ... vs Mathew Job And Ors. on 24 January, 1992
Equivalent citations: AIR1993KER191, AIR 1993 KERALA 191, ILR(KER) 1992 (1) KER 657, (1992) 1 KER LJ 262, (1992) 1 KER LT 297
Author: M. Jagannadha Rao
Bench: M. Jagannadha Rao
JUDGMENT Jagannadha Rao, C.J.
1. The correctness of the decision of this Court in Kunhikrishnan Nair v. R.T.O., Malappuram, 1991 (2) KLT 266 (DB), in so far as it stated that the existing operators have a right to be heard before the grant of a permit under the Motor Vehicles Act, 1988, falls for consideration in this Writ Appeal, in the light of the decision of the Supreme Court in Mithilesh Garg, etc. v. Union of India, 1991 (4) JT(SC) 447. The Writ Petition, out of which this writ appeal arises, was filed by Mathew Job im-pleading the appellant as the first respondent, and questioning the correctness of the order Ext. P4 dated 6-8-1991 passed by the State Transport Appellate Tribunal (hereinafter called the "STAT"). By that order the STAT allowed the appeal filed by the appellant-society in part, and modified the order of the Regional Transport Authority (hereinafter called the "RTA") dated 4-7-1991.
2. The brief facts of the case are as follows. The writ petitioner, Mathew Job, is a stage carriage operator conducting service on the route Changanacherry -- Mundakkayam (via) Karukachal, 14th mile and Ponkunnam. He is operating on the strength of a regular permit granted to his state carriage bearing No. KLB 874 granted in 1969. While so, the appellant-society applied for the grant of a permit on the route Mundakhayam -- Trikkunnapuzha touching Harippad. This is an inter-District route passing through three Districts, namely, Alappuzha, Pathanamthitta and Kottayam. This route overlaps the entire route of the writ petitioner's service from Changanacherry to Mundakkayam for 55 Kms. The length of the route Munkakkayam -- Trikkunnapuzha is 98 Kms. The appellant-society had applied for, and obtained, temporary permits to operate on this route. However, later when the society applied for regular permit, it changed one of the intermediate points, namely, Kanam. Instead of Kanam, it wanted to operate (via) I4th mile. The route Changanacherry Mun-dakkayam (via) 14th mile is extremely overcrowded, and major portion of the route overlaps Kottayam-Kumily road. On this route, there is one bus every minute and it is impossible, according to the petitioner, to accommodate additional service in this route without the danger of racking and consequential accidents. The consideration of the society's application was notified and the writ petitioner, and other existing operators, appeared before the RTA at the time of consideration of the appellant's application, and objected to the grant of a perrnit. They contended that the grant of a permit, as applied for by the appellant, would result in extreme hardship to existing operators, and would strain the already crowded routs further. The RTA, Kottayam, passed an order on 4-7-1991 stating that it had heard the applicant, and the objectors, Mathew Job, DTO, Changanacherry and Josekutty Joseph, that all the objectors wanted to ensure that the appellant's vehicle be operated through Kanam through which place it was operating. The appellant was informed that there was no change of timing. The RTA therefore granted the permit, subject to the above condition, that it would operate through Kanam.
3. Against the said order of the RTA, the appellant-society filed appeal before the STAT. In the memorandum of grounds, Ext. P3, it in stated that the objectors contended before the RTA that permit may be granted through Kanam, through which route the appellant is operating for some time on the strength of the temporary permits, and that the appellant requested that permit may be granted through 14th mile, but the existing operators objected thereto. The appellant contended before the STAT that the existing operators can 'object only regarding timings'. In the instant case there was no change in the timings, and that therefore, the RTA erred in granting a conditional permit to the appellant-society. The RTA had varied the route through Kanam instead of 14th mile, and it should not have done merely because the existing operators raised objections. It was therefore submitted before the STAT that the variation made by the RTA while granting the permit was illegal and unsustainable, and contrary to the provisions of Section 72(1) of the Motor Vehicles Act, 1988. The appellant relied upon a decision of this Court in M. Girija Devi v. K. T. Mathew, 1990(2) KLJ 887 : 1991 (I) KLT 353. The appellant contended before the STAT that it was entitled for the route applied for.
4. The STAT in its judgment dated 6-8-1991, after hearing both sides, stated that the RTA had granted a permit slightly deviating it via. Kanam, and this was done on the ground that the appellant was operating via. Kanam by virtue of temporary permits, and on account of the objections of the existing operators. The STAT further stated that the appellant could rely upon the decision in Girija Devi v. K. T. Mathew, 1991 (1) KLT 353 to contend that the RTA was not entitled to make any modifications in the route applied for by the appellant. The STAT therefore set aside the modifications made by the RTA, but, however, observed that the Secretary, RTA will settle the timings. The appellant was granted a regular permit for the route as applied for by it, and the Secretary, RTA was directed to settle the timings and issue permit within two weeks. Against the said judgment, the objector Methew Job filed the writ petition as stated above.
5. The learned single Judge, after referring to Girija Devi's case and the observation therein that existing operators cannot be heard, and also referring to another decision in Kunhikrishnan Nair v. RTO, Malappuram, 1991 (2) KLT 266, observed that in Girija Devi's case the Division Bench did not notice Rule 123 of the Kerala Motor Vehicles Rules, while the said Rule was considered in Kunhikrishnan Nair's case, where relying on the said Rule, it is stated that the existing operators have to be given an opportunity to make a representation even with regard to grant of a permit to another operator. Rule 123(2) at states that when the meetings of the RTA are held, adequate notice of such meetings and of the business to be transacted thereat shall be given for the information of "such persons who, in the opinion of the RTA, or of its Secretary, may reasonably have a claim to be permitted to attend the meeting for the purpose of making representations". The learned single Judge also observed that the decision of the Andhra Pradesh High Court in Secretary, R.T.A. Guntur v. B. Rama Rao, AIR 1991 AP 11, which held that the existing operators have no right to object, was dissented in Kunhikrishnan Nair's case. The learned single Judge therefore allowed the writ petition in part, and set aside the judgment of the STAT to the extent to which it granted a regular permit for the route applied for by the appellant-society, and observed that in all other respects, Ext. P4 judgment of the STAT, would stand. The learned single Judge further directed the RTA to consider the application of the appellant-society for a regular permit on the above basis, and pass appropriate orders as early as possible with notice to the writ petitioner-objector, and other affected persons. It is against this judgment that the present writ appeal has been preferred.
6. In this appeal it is contended that the decision of this Court in Girija Devi's case is correct, and the decision in Kunhikrishnan Nair's case cannot be accepted in view of the recent decision of the Supreme Court in Mithilesh Garg. etc. v. Union of India, 1991 (4) JT SC 447.
7. In Mithilesh Garg's case the Supreme Court was dealing with a batch of writ petitions, where the question of jurisdiction of the RTA, Meerut, fell for consideration. Mithilesh Garg held a stage carriage permit and was plying his vehicles on the Meerut-Parikshirgarh-Hasifabad-Laliana and aligned routes within the jurisdiction of the RTA, Meerut. According to him prior to the enforcement of the Act. 23 permit-holders were operating on the said route, but thereafter under Section 80 of the new Act the RTA, Meerut, had issued 272 more permits in respect of the same route. Mithilesh Garg and other writ petitioners were therefore existing operators. They objected to the grant of new permits. They challenged the grant of permits by the RTA under Article 32 of the Constitution of India on the ground that their fundamental right under Articles 14 and 19(1)(g) had been adversely affected by the grant of a new permit. The Supreme Court adverted to the difference in the provisions of Sections 47 and 57 of the old Act, and Sections 71, 72 and 80 of the new Act, and observed that on a comparative reading of the provisions of the old Act and the new Act made it clear that the procedure for grant of permits under the new Act had been liberalised to such an extent that an intended operator could get a permit for asking irrespective of the number of operators already in the field. Under Section 57 read with Section 47(1) of the old Act an application for a stage carriage permit was to be published and kept for inspection in the office of the Regional Transport Authority, so that the existing operators could file representations/objections against the said application. The application, along with objections, was required to be decided in a quasi-judicial manner, and Section 47(3) of the old Act further permitted the imposition of limit on the grant of permits in any region, area or on a particular route. The Supreme Court further observed that the Parliament in its wisdom had completely 'effaced' the above provisions. The scheme envisaged under Sections 47 and 57 of the old Act, according to their Lordships, had been done away with by the new Act. The Supreme Court then observed as follows:
"... The right of existing operators to file objections and the provision to impose limit on the number of permits have been taken away. There is no similar provision to that of Sections 47 and 57 under the Act. The Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalise the grant of permits. Section 71(1) of the Act provides that while considering an application for a stage carriage permit, the Regional Transport Authority shall have regard to the objects of the Act. Section 80(2), which is the harbinger of liberalisation, provides that a Regional Transport Authority-shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. There is no provision under the Act like that of Section 47(3) of the old Act, and as such no limit for the grant of permits can be fixed under the Act. There is, however, a provision under Section 71(3)(a) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having population of more than five lakhs."
After observing as stated above, the Supreme Court went on to state that the writ petitioners before it were in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India. Their only effort was to stop the new operators from coming in the field as competitors. There was no justification in the petitioners' stand. More operator meant healthy competition and efficient transport system. There should be plenty of operators on every route to provide sample choice to the commuter-public to board the vehicle of their choice, and patronise the operator who was providing the best service. This was a matter of liberal policy. Restricted licensing under the old Act led to the concentration of business in the hands of few persons, thereby giving rise to a kind of monopoly, adversely affecting the public interest. The Supreme Court further observed that the apprehensions of the writ petitioners that too many operators on a route are likely to affect adversely the interest of weaker section of the profession, was without any basis. Only such number of vehicles would finally remain in operation on a particular route as are economically Viable. The writ petitioners cannot therefore be permitted to keep fresh entrants out of the business. The Supreme Court also pointed out that the restrictions imposed by the State under Article 19(6) of the Constitution of India, and in Sections 47(3) and 57 of the old Act were taken away by the new Act. The provisions of the new Act are in conformity with Article 19(1)(g) of the Constitution of India. The writ petitioners cannot therefore ask the Court to do what the Parliament had undone. Reference was made to an earlier decision of the Supreme Court in Hans Raj Kehar v. State of U.P., (1975) 2 SCR 916 : (AIR 1975 SC 389), which considered the U.P. Amendment of 1972 to the old Act, wherein the said amendment brought in a situation just like the present, where the right of the existing operators to object was taken away by the said UP amendment. The Supreme Court had upheld the said amendment in Hans Raj Kehar's case (supra). The Supreme Court also rejected the contention based on Article 14 of the Constitution of India. Yet another contention was raised to the effect that the decision in Hans Raj Kehar's case was no longer a good law, in view of the later decision of the Supreme Court in Rameshwar Prasad v. State of U.P., (1983) 2 SCC 195 : (AIR 1983 SC 383). This contention was also rejected. The Supreme Court pointed out that the latter case was dealing with a further amendment to the U.P. Act in 1976, which permitted imposition of a limit on number of permits to be issued. The Supreme Court upheld the later legislation also. The Supreme Court further held that each case depended upon relevant amendments to the statute in U.P.
8. In our view, the above said decision of the Supreme Court in Mithilesh Garg's case (supra) clearly lays down that the existing operators have no right to object to the grant of a permit to a new operator under the new Act, 1988, Therefore the observations, to the contrary in Kunhikrishnan Nair's case, 1991 (2) KLT 266 must be held to be invalid. It must also be held by necessary implication that the decision of the Andhra Pradesh High Court in Secretary RTA Guntur v. E. Rama Rao, AIR 1991 AP 11 has been upheld by the Supreme Court to that extent. We agree that the Girija Devi's case to the extent that the said decision states that the existing operators have no right to object to the grant of a permit to another operators. The correctness of the other principles laid down in the Girija Devi's case has not been canvassed before us by the respondents.
9. The learned counsel for the appellant relied upon yet another decision of the Division Bench of this court in Thomas Lucka v. Secretary, RTA (1991) (2) KLT 229. In that case it was only held after a reference to Sections 70, 71 and 72(1) of the Motor Vehicles Act, 1988 that the existing operators who may be adversely affected by the timings given in an application for a permit or timings proposed to be fixed, have a right to have an opportunity to make a representation before a decision is taken under Section 72(1), as to the timings. In so far as the said decision stated that the existing operators have a right to make a representation in respect of the timings to be granted for a new operator, we are in entire agreement with the said decision. If the said decision, as contended by the respondents, intended to lay down that the existing operators have a right to object even to the grant of a permit to a new operator, after the commencement of the new Act, we cannot agree with it.
10. Learned counsel for the respondents then contended that the decision in Kunhikrishnan Nair's case was based upon R. 123 of the Kerala Motor Vehicles Rules, and that the Supreme Court did not have any occasion to consider the said rule.
11. In so far as R. 123(2) is concerned, that rule reads as follows:
"Adequate notice of such meetings and of the business to be transacted thereat shall be given for the information of such persons who, in the opinion of the Regional Transport Authority or of its Secretary, may reasonably have a claim to be permitted to attend the meeting for the purpose of making representations."
The Division Bench in Kunhikrishnan Nair's case, observed that the above rule, Rule 123(2), of the Kerala Rules was pari materia with Rule 132 of the A.P. Rules referred to in Secretary, R.T.A., Guntur v. E, Rama Rao, AIR 1991 AP 11 (FB) and that the view taken by the Full Bench of the A.P. High Court would result in taking away the vigour and efficacy of Rule 132 of the A.P. Rules. According to the Division Bench in Kunhikrishnan Nair's case, there is nothing in Sub-rule (2) of Rule 123 to indicate that a restrictive meaning is to be ascribed to the words "such persons, who in the opinion of the Regional Transport Authority or of its Secretary, may reasonably have a claim to he permitted to attend the meeting for the purpose of making representations."
12. In our view, to the extent to which the Division Bench interpreted Rule 123(2) of the Kerala Rules as enabling the R.T.A. to issue notice to existing operators on the basis that they had a right to make representations, the said view must be deemed to be no longer good law, in view of the recent decision of the Supreme Court in Mithilesh Garg etc. v. Union of India, 1991 (4) JT SC 447, referred to above, wherein the Supreme Court has categorically stated that Parliament has effaced the features of the old Act permitting objections to be filed by existingoperators. In fact, the Supreme Court categorically stated in paragraph 5 of the above said decision that "the right of existing operators to file objections and the provision to impose limit on the number of permits have been taken away." The above view cannot therefore be accepted to this extent.
13. Learned counsel for the respondent then raised another contention that under Section 90 of the new Act, a revision lay to State Transport Appellate Tribunal against any order and that therefore a revision could be filed even against an order of grant of permit and that this would necessarily mean that, at the anterior stage of grant of permit by the Regional Transport Authority, the existing operator must be deemed to have a right to object to the grant of permit to another operator. It is again argued that the Supreme Court did not advert to Section 90 expressly.
14. In our view, after the clear prononcement of the law in Mithilesh Garg's case by the Supreme Court stating that the existing operator has no right to object to the grant of permit to another operator, it is not open to the petitioner to contend that Section 90 of the new Act was not considered by the Supreme Court. We however do not decide whether Section'90 implies a right of revision to object to grant of permit to another operator for that question does not arise in this case. All that we say is that the omission by the Supreme Court to refer to Section 90 of the new Act, makes no difference so far as the ratio of the decision is concerned.
15. For the aforesaid reasons, we hold that Kunhikrishnan Nair's case (199l (2) KLT 266) to the extent it decides that existing operators have a right to object at the stage of grant of permit to another operator is not good law and must be deemed to be impliedly overruled by the Supreme Court in Mithilesh Gang's case. Similarly, if the decision in Thomas Lucka v. Secretary, R.T.A. (1991 (2) KLT 229) laid down any preposition similar to the one in Kunhikrishnan Nair's case, to that extent, it must also be deemed to be partly overruled. We however agree with Thomas Lucka's case, in so far as it stated that existing operators could object in respect of the timings. We also agree with Girija Devi v. K.T. Mathew (1991 (1) KLT 353) to the extent, it held that existing operators have no right to object to the grant of permit to another operator. With regard to the other points decided therein, no contention has been raised before us by the respondents.
16. In the result, the appeal is allowed and the writ petition is dismissed. The order of the S.T.A.T. is restored. The directions given by the S.T.A.T. in so far as the timings are concerned shall stand. There will be no order as to costs.