Karnataka High Court
Karnataka State Road Transport ... vs The State Of Karnataka on 24 June, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
-1-
NC: 2024:KHC:22974
WP No. 7413 of 2023
C/W WP No. 9886 of 2023
WP No. 12361 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 7413 OF 2023 (MV)
C/W
WRIT PETITION NO. 9886 OF 2023 (MV)
WRIT PETITION NO. 12361 OF 2023 (MV)
IN WP NO. 7413/2023
BETWEEN:
SRI. V. GOPI
S/O J. VENKATACHALAMAIAH,
AGED 59 YEARS,
BAMBOOM BAZAAR,
CHINTAMANI,
CHIKKABALAPURA DISTRICT 563125.
...PETITIONER
Digitally signed (BY SRI. B R SUNDARA RAJA GUPTA.,ADVOCATE)
by
NARASIMHA AND:
MURTHY
VANAMALA
Location: HIGH 1. THE STATE OF KARNATAKA
COURT OF REP. BY SECRETARY TO GOVERNMENT
KARNATAKA
TRANSPORT DEPARTMENT,
MULTISTORIED BUILDING,
1ST FLOOR, DR.AMBEDKAR VEEDHI,
BANGALORE-560001.
2. THE KARNATAKA STATE
TRANSPORT AUTHORITY
BY ITS SECRETARY,
-2-
NC: 2024:KHC:22974
WP No. 7413 of 2023
C/W WP No. 9886 of 2023
WP No. 12361 of 2023
TTMC BUILDING, 1ST FLOOR,
SHANTHINAGAR,
BENGALURU-560027.
3. ADDITIONAL COMMISSIOENR
FOR TRANSPORTS AND SECRETARY
KARNATAKA STATE TRANSPORT AUTHORITY,
TTMC BUILDING, 1ST FLOOR,
SHANTHINAGAR,
BENGALURU 560027.
4. SMT SHARADAMMA
W/O LATE VENKATARAMANAPPA,
MAJOR,
PROPRITRIX SLN MOTORS
RAGUTTAHALLI, CHINTAMANI
CHIKKABALLAPURA DISTRICT 63123.
...RESPONDENTS
(BY SRI.P.S. RAJA GOPAL., SENIOR ADVOCATE FOR
SRI. C.V. KUMAR & SRI. V. SUBHASH REDDY,
ADVOCATES FOR C/R4;
SRI. VIKRAM HUILGOL, AAG A/W
SMT. JYOTHI M MARADI, HCGP FOR R1 TO R3)
THIS WP IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTIFICATIONS BEARING NO.TD 343 TDO
2019 DATED 04.03.2023 AND TD 343 (1) TDD 2019
DATED 04.03.2023 MARKED UNDER ANNX - O AND P
ISSUED BY RESPONDENT NO.1 ISSUE OF A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT
ORDER OF DIRECTION.
-3-
NC: 2024:KHC:22974
WP No. 7413 of 2023
C/W WP No. 9886 of 2023
WP No. 12361 of 2023
IN WP NO. 9886/2023
BETWEEN:
KARNATAKA STATE ROAD TRANSPORT
CORPORATION
CENTRAL OFFICE,
K H ROAD,
SHANTHINAGAR,
BENGALURU 560027
REPRESENTED BY ITS CHIEF LAW OFFICER.
...PETITIONER
(BY SRI. HAREESH BHANDARY T.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
TRANSPORT DEPARTMENT
ROOM NO 153, GATE NO 3,
M S BUILDING, DR AMBEDKAR VEEDI,
BENGALURU 560001.
2. UNDER SECRETARY TO GOVERNMENT
TRANSPORT DEPARTMENT
GATE NO 3,
M S BUILDING,
DR AMBEDKAR VEEDI,
BENGALURU 560001.
3. KARNATAKA STATE TRANSPORT AUTHORITY
REPRESENTED BY ITS SECRETARY,
TRANSPORT DEPARTMENT
TTMC BUILDING, FIRST FLOOR,
SHANTHINAGAR BUS STAND
-4-
NC: 2024:KHC:22974
WP No. 7413 of 2023
C/W WP No. 9886 of 2023
WP No. 12361 of 2023
SHANTHINAGAR,
BENGALURU 560027.
4. THE SECRETARY
TRANSPORT DEPARTMENT
TTMC BUILDING, FIRST FLOOR,
SHANTHINAGAR BUS STAND
SHANTHINAGAR,
BENGALURU 560027.
5. SMT SHARADAMMA
AGED ABOUT 65 YEARS,
W/O LATE VENKATARAMANAPPA,
RAGHUTTAHALLI VILLAGE,
CHINTAMANI TALUK
CHIKKABALLAPUR DISTRICT 563123.
...RESPONDENTS
(BY SRI.P.S. RAJAGOPAL., SENIOR ADVOCATE FOR
SRI.C.V. KUMAR & SRI. V. SUBHASH REDDY,
ADVOCATE FOR C/R5;
NOTICE NOT RETURNED IN R/O R1 TO R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING THE NOTIFICATION DATED 4.3.23 BEARING
NO. TD 343 TDO 2019 AT ANNEXURE-A AND QUASHING
THE NOTIFICATION DATED 4.3.23 BEARING NO. TD
343(1) TDO 2019 BOTH ISSUED BY THE SECOND
RESPONDENT, ANNEXURE-B OF WRIT PETITION
RESPECTIVELY.
-5-
NC: 2024:KHC:22974
WP No. 7413 of 2023
C/W WP No. 9886 of 2023
WP No. 12361 of 2023
IN WP NO. 12361/2023
BETWEEN:
1. SRINIVASA NAIDU
AGED 59 YEARS,
S/O NARAYANASWAMY NAIDU,
SRI ANNAPOORNESHWARI NILAYA,
ANJANI EXTENSION, CHINTAMANI,
CHIKKABALLAPUR-563125.
2. SMT SHANTHAKUMARI P
AGED 57 YEARS,
W/O N SRINIVASA NAIDU,
SRI ANNAPOORNESHWARI NILAYA,
ANJANI EXTENSION, CHINTAMANI,
CHIKKABALLAPUR-563125.
...PETITIONERS
(BY SRI. M E NAGESH.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY TO TRANSPORT,
GATE NO.3, MS BUILDING,
DR.AMBEDKAR VEEDHI,
BENGALURU-560001.
2. THE UNDER SECRETARY TO GOVERNMENT,
TRANSPORT DEPARTMENT,
GATE NO.3, MS BUILDING,
DR.AMBEDKAR VEEDHI,
BENGALURU-560001.
3. THE STATE TRANSPORT AUTHORITY
TTMC BUILDING, K H ROAD,
SHANTHINAGAR,
-6-
NC: 2024:KHC:22974
WP No. 7413 of 2023
C/W WP No. 9886 of 2023
WP No. 12361 of 2023
BENGALURU-560027,
BY ITS SECRETARY.
4. THE SECRETARY,
STATE TRANSPORT AUTHORITY,
TTMC BUILDING, K H ROAD,
SHANTHINAGAR,
BENGALURU-560027.
5. SMT SHARADAMMA
AGE 65 YEARS,
W/O LATE VENKATARAMANAPPA,
RAGHUTTAHALLI VILLAGE,
CHINTAMANI TALUK,
CHIKKABALLAPUR DISTRICT-563123.
...RESPONDENTS
(BY SRI.P.S. RAJA GOPAL., SENIOR ADVOCATE FOR
SRI. C.V. KUMAR & SRI. V. SUBHASH, ADVOCATE
FOR C/R5; SRI. VIKRAM HUILGOL, AAG A/W
SMT. JYOTHI M. MARADI, HCGP FOR R1 TO R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS QUASHING THE NOTIFICATION DATED
04.03.2023 NO. TD 343 (1) TDO 2019 AS PER ANNX-J
AND ALSO THE CIRCULATION ORDER OF THE STATE
TRANSPORT AUTHORITY DATED 21.03.2023 IN SL
NO.13/SUB NO.13/2022-23 AS PER ANNX-K.
THESE PETITIONS, COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE
THE FOLLOWING:
-7-
NC: 2024:KHC:22974
WP No. 7413 of 2023
C/W WP No. 9886 of 2023
WP No. 12361 of 2023
ORDER
These batch of writ petitions are filed calling in question the notifications issued by the Government of the State of Karnataka [the State Government] in exercise of powers provided under the provisions of Section 67 [2] and 67 [3] and 88 of the Motor Vehicle Act,1988 [for short, 'the MV Act'], and additionally, the petitioners in WP No. 9886/2023 and WP No. 12361/2023 have also impugned the Circulation Note/ Order issued by the Karnataka State Transport Authority [KSTA]. The details of the notifications and the Circulation Note/ Order impugned in the respective writ petitions read as under:
Writ Petition Number. The details of the Impugned Notification/Circular Order WP No. 7413/2023 [i] Notification bearing No. TD 343 TDO 219 [Annexure O] filed by Sri. V Gopi dated 04-03-2023 issued by the first respondent under Section 88 [6] of the MV Act and -8- NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 [ii] Notification bearing No. TD 343 [1] TDO 2019 dated 04-
03-2023[Annexure P] issued by the first respondent under Section 67 [2] and [3] of the MV Act.
WP No. 9886/2023 filed [i] Notification bearing No. TD by Karnataka State Road 343 TDO 219 [Annexure A] Transport Corporation dated 04-03-2023 by the [KSRTC] first respondent under Section 88 [6] of the MV Act [ii] Notifications bearing TD 343 [1] TDO 2019 dated 04-
03-2023[Annexure B]
issued by the first
respondent under Section
67 [2] and [3] of the MV
Act.
[iii] Circulation Note in KSTA:
SI.No.13/Sub.No.13/
2022-23 dated:
21.03.2023 [Annexure S]
issued by the third
respondent.
-9-
NC: 2024:KHC:22974
WP No. 7413 of 2023
C/W WP No. 9886 of 2023
WP No. 12361 of 2023
WP No. 12361/2023 [i] Notification bearing No. TD
filed by Sri. Srinivasa 343 [1] TDO 2019 dated 04-
Naidu and Smt. 03-2023[Annexure J] issued
Shanthakumari. P by the first respondent
under Section 67 [2] and [3]
of the MV Act.
[ii] Circulation Order in KSTA:
SI.No.13/Sub.No.13/ 2022-
23 dated: 21.03.2023
[Annexure K] issued by the
third respondent.
These petitions are after a set of earlier writ proceedings apart from certain proceedings under the provisions of the MV Act about renewal of permits. This Court, before referring to these different proceedings, must record the details of the material circumstances leading to earlier writ proceedings.
Inter-State Agreement dated 01.09.1975 and Seventh Supplemental Agreement and addendum to such notification in the years 2005 and 2006.
- 10 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023
2. The State Governments of Karnataka and Andhra Pradesh have entered into an Inter-State Agreement dated 01.09.1975 for the grant of inter- state Contract Carriage Permits to operators from the corresponding States for bus transport services in the States, and over the years these Governments have entered into different Supplementary Agreements. These State Governments, because certain permits were issued over a period of time outside the Inter- State Agreements and with the Apex Court1 stipulating that the permits could not be issued without necessary Inter-State Agreements, have published and gazetted Draft Seventh Supplemental Agreement and addendums to such Agreement in the years 2005 and 2006.
1 The reference must be made to the decision of the Apex Court in Ashwani Kumar Vs R.T.A, Bikaner reported in AIR (1999) 8 SCC Page 364 and Venkatakrishnan V/s States Transport Authorities reported in (2004) 11 SCC
207.
- 11 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023
3. The State Government [the Government of Karnataka] has published the draft of the Seventh Supplemental Agreement on 08.08.2005 and Gazetted the same on 17.08.2005, and whereas the Addendum [the First Addendum] to this Seventh Supplemental Agreement with the details of the permits as furnished in Annexure - VIII is published on 07.01.2006 and Gazetted on 17.01.2006. The notifications in this regard are under Section 88[5] of the MV Act.
The Notification of the Second Addendum dated 01.10.2007 in TRD 02 TMI 2003
4. The First Addendum dated 07.01.2006 pertained only to certain permits, but upon ascertaining that permits are indeed issued in both the States for a higher number of routes, a subsequent decision is taken to include all the routes under the existing permits [5061.6 kilometres in the combined state of Andhra Pradesh and 6563.4
- 12 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 kilometres in the state of Karnataka]. Therefore, the Second Addendum dated 01.10.2007 to the Seventh Supplemental Agreement is notified and gazetted on 01.10.2007. This Court, for the purposes of the present writ petition, must observe that the Addendum gazetted on 01.10.2007 refers to 4 permits granted to Sri Venkataramanappa, and these details of the permits are as follows:
Permit Validity Details of the No of Route No. Route Singles Length 17/99 26.05.2009 Chintamani to B 2 47 km Kothakota 58/98 24.11.2008 B Kothakota to 6 47km Chintamani 58/98 24.11.2008 B Kothakota to 1 47 km Chintamani2 66/98 12.01.2009 B Kothakota to 7 47 km Chintamani [Additional Vehicle to operate seven singles]
2 Seven Single trips by each vehicle.
- 13 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 The details of the Final Agreement notified vide the Notification in No. TRD 02 TMI 2003 dated 07.03.2008
5. If the State Government had notified the Final Notification under Section 88 [6] of the MV Act in terms of the Addendum gazetted on 01.10.2007, perhaps, the thread of litigation resulting in the present writ petitions could have been avoided. However, the State Government, while considering certain representations filed in response to the Second Addendum gazetted on 01.10.2007 [as asserted], has issued Final Notification dated 07.03.20083 modifying permits that will enable Sri Venkataramanappa to operate between Kadri to Bangalore based on the existing permits. If Sri Venkataramanappa's permits are from B Kothakota to Chintamani with certain trips and vehicles via 3 The Government of Andhra Pradesh has notified the corresponding Agreement on 30.07.2009 [Gazetted on 01.08.2009] modifying the existing schemes to enable the operators to operate their services on the interstate routes as mentioned in the Annexure-VII, VIII & IX of the Notification dated 07-03-2008.
- 14 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 different routes, by this Final Agreements the fourth respondent's permits [referred to as the Subject Permits] are modified permitting services between Kadri to Bangalore. The details of the modifications are as follows:
Permit Validity Details of the No of Route No. Route Singles Length 17/99 26.05.2009 Gowribidanur to B 2 115 km Kothakota4 58/98 24.11.2008 Kadri to Bangalore 6 187 km 58/98 24.11.2008 Kadri to Bangalore 1 187 km 66/98 12.01.2009 Kadri to Bangalore 7 187 km [Additional Vehicle to operate seven singles] 5.1 The permits held by Sri. Venkataramanappa, upon his death, have been transferred to his wife, Mrs. Sharadamma [the fourth 4 The only modification for this permit is in the distance. If the Addendum dated 01.10.2007 mentioned distance as 39 km in the State of Karnataka and 9 km in the State of Andhra Pradesh, in the Final Notification dated 07.03.2008, the distance is mentioned as 106 km in the State of Karnataka and 9 km in the State of Andhra Pradesh.
- 15 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 respondent in WP No. 7413/2023 and the fifth respondent in the other two petitions herein]. This respondent, for convenience, is referred to in this course of this Order as 'the fourth respondent'. The fourth respondent has participated in all the different proceedings that are mentioned hereinafter.
The details of the proceedings resulting from challenge to the Final Agreement is notified on 07.03.2008 - in WP Nos. 4950/2008, WP No. 5148/2008 and WP 10597/20085.
6. The Final Agreement notified on 07.03.2008 is called in question by persons, who are not parties to the present proceedings, in WP Nos. 4950/2008, 5148/2008 and WP 10597/2008 with KSRTC and Sri Venkataramanappa [along with the combined State of Andhra Pradesh and the State of Karnataka] as respondents. The petitions are tagged 5 Some of these petitioners have also challenged the final notification dated 07.03.2008 insofar as it related to certain permits of other private parties in WP Nos. 5566/2008 and 9852/2008.
- 16 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 along with other petitions filed challenging certain other permits6. This Court has allowed these petitions [and connected petitions] on 08.12.2010 and the agreement insofar as Annexure VIII and IX appended to the Final Agreement notified on 07.03.2008 are quashed.
6.1 This Court, considering the provisions of Section 88 of the MV Act, has opined that the modification of Final Agreement as regards the fourth respondent's permits is not in consonance with the draft notification [the Second Addendum dated 01.10.2007] but reserving certain liberty to the State Government. The liberty reserved by this Court reads as under:
"It is, therefore, I am of the opinion that the final agreement/notification bearing No.s ¸ÁjE 2 nJAL 2003 dated 7.3.2008 has to be 6 The writ petition in WP No. 9852/2008 is filed challenging permit in Sl. No.13 in Annexure XI and the writ petition in WP No. 5566/2008 is filed challenging permit in Sl No. 42 in Annexure VIII.
- 17 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 necessarily quashed for not being fully in consonance with the draft agreement but liberty is reserved to the state government to come up with a final agreement to be published in terms of sub-section [6] of Section 88 of the Act in furtherance with the draft agreement/notification in No. nDgïr 2 nJAL 2003 dated 1.10.2007 and after bestowing its attention to the representations that the authority has already received and to publish such final agreement/notification in accordance with law."
The details of the intra-court appeals filed as against the Common order dated 08.12.2010 in WP No. 4950/2008 and connected matters and the subsequent proceedings before Apex Court
7. Sri Venkataramanappa has impugned the order dated 08.12.2010 in a set of intra court appeals in WA Nos.5548-5550/2011, and on 20.02.2015 the Division Bench has dismissed the appeals affirming the reasoning of this Court's order dated 08.12.2010. The Division Bench in its decision in another set of intra-court appeals has confined the decision in WP
- 18 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 No. 4950/2008 and connected matters to the Fourth Respondent's Subject Permits [17/99, 58/98 and 66/98 with extension from B. Kothakota to Kadri and from Chintamani to Bangalore]. The fourth respondent has challenged the Division Bench's order dated 20.02.2015 in WA Nos.5548-5550/2011 with the Apex Court in SLP [C] Nos.17234- 17242/2015, and Apex Court has dismissed this SLP on 10.07.2015 confirming the Division Bench's order.
The details of the subsequent Addendum in No. SARIE 124 SAENYA 2008 and Corrigendum in No. SARIE 124 SAENYA 2008 both of which are dated 23.03.2018
8. The State Government, ostensibly because of the liberty reserved in terms of the Common Order dated 08.12.2010 in WP No. 4950/2008 and connected matters, has issued Corrigendum 23.03.2018 as also the even dated Addendum to the quashed Final Agreement notified on 07.03.2008.
- 19 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 The Addendum dated 23.03.2018, which is published under Section 88 [5] of the MV Act, notifies that all those persons who wish to make representations/ suggestions to the proposed modifications in the fourth respondent's permits are given such opportunity. The proposed modification are as follows:
Permit No.17 /99: Chintamani to B Kothakota to be modified as Bangalore to Kadri with a distance of 116 in Karnataka and 79 in Andhra Pradesh with 2 trips.
Permit No. 58/98: B Kothakota to Chintamani to be modified as Kadri to Bangalore with distance of 108 kilometres in Karnataka and 79 kilometres in Andhra Pradesh.
Permit No. 66/98: B Kothakota to Chintamani to be modified as Kadri to Bangalore with distance of 108 kilometres in Karnataka and 79 kilometres in Andhra Pradesh
- 20 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 8.1 The simultaneous Corrigendum dated 23.03.2018 is issued mentioning that it is required to be issued to be in compliance with the directions issued by this Court in the order dated 08.12.2010 and stipulating that it is being issued subject to the terms and conditions of the original Notification dated 07.03.2008. However, the details of the permits as mentioned in the Second Addendum [in Annexure - VIII] dated 01.10.2007 are retained in the Corrigendum dated 23.03.2018. The fourth respondent's request for modification [extension] of route and increase in trips and vehicles is incorporated in the Addendum dated 23.03.2018 and not in the Corrigendum dated 23.03.2018.
The details of the proceedings challenging Corrigendum in No. SARIE 124 SAENYA 2008 dated 23.03.2018:
- 21 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023
9. WP No. 19212/2018 and 19750/2018:
The petitioner in WP No. 7413/2023 [one of the petitions in the present batch of writ petitions] has filed the petition in WP No. 19212/2018 impugning the Corrigendum dated 23.03.2018, and this Court, on 18.06.2018, has stayed the operation of this Corrigendum. M/s KSRTC, the petitioner in WP No. 9886/2023 [one of the other petitions in the present batch of writ petitions] has filed the petition in WP No. 19750/2018 also challenging the Corrigendum dated 23.08.2018. These writ petitions are presently tagged vide this Court's order dated 18.06.2018 with two other writ petitions in WP Nos. 13454/2018 and 20489/2022.
9.1 WP No. 13454/2018: The Karnataka State Transport Authority [KSTA] has considered Sri Venkataramanappa's application for grant of additional trip with additional vehicle for the Permit in No. 58/98 by its order dated 28.11.1998.
- 22 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 This order is called in question before Karnataka State Transport Appellate Tribunal [for short, the 'Appellate Tribunal'], initially in the proceedings initiated as a revision, but the proceedings are converted into an appeal [Appeal No. 364/2015] which, after the intervention by this Court in WP No.1699/2016, is considered by the Appellate Tribunal by its order dated 23.12.2017. The KSTA's order dated 28.11.1998 is set aside, and this KSTA's order is subject matter of the petition in WP No 13454/ 2018.
9.2 WP No. 20489/2022: A third party has impugned KSTA's order dated 16.12.2020 to grant renewal of Permit in No. 17/99 in Revision Petition in No.49/2021. The Appellate Tribunal has dismissed the in Revision Petition in No.49/2021 and as such, this third party has filed this writ petition calling in the Appellate Tribunal's order. This
- 23 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 petition is tagged with the other three petitions by a subsequent order.
The details of the writ proceedings as against the Addendum in No.SARIE124 SAENYA 2008 dated 23.03.2018:
10. WP No. 720/2021: This writ petition is filed by the petitioner in WP No 7413/2023 calling in question the Addendum dated 23.03.2018, and as canvassed, urging many grounds. This Court, on 24.06.2021, has disposed of the petition observing that, because this Addendum is only in the form of a draft and the petitioner has an opportunity to file his representation. However, the State Government is directed to consider the representation filed by the petitioner before issuing the Final Notification based on the addendum.
10.1 WP No. 11707/2021: This writ petition is filed by M/s KSRTC [the petitioner in WP No. 9886/2023] calling question the Addendum dated
- 24 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 23.03.2018, and again on grounds similar as in WP No. 720/2021. This Court, on 05.07.2021, has disposed of the petition in terms of the order passed in WP No. 720/2021.
The details of the Interim Order in WP No. 19212/2018:
11. This Court in WP No. 19212/2018 [the first of the writ petitions filed challenging the Corrigendum and not the Addendum dated 23.03.2018 which has the changes], considering the request for interim order, has granted stay of the operation of the Corrigendum dated 23.03.2018.
However on 08.02.2022, this Court, because of the disposal of the writ petition in WP No. 720/2021, has continued such interim order with the observation that the Authorities shall consider the applications for renewal without being influenced by the order of stay.
- 25 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 The details of the consideration of the different representations/ suggestions
12. The petitioner in WP No. 7413/2023 and M/s KSRTC [the petitioner in WP No. 9886/2023] have filed their Representations and Suggestions [by way of Objections] to the suggested changes in the Addendum dated 23.03.2018 to the fourth respondent's permits in No. 17/99, 58/198 and 66/98 viz. extension from Kadri to Bangalore instead of B Kothakota to Chintamani and vice versa with additional trips and vehicles [Subject Permits]. These representations are considered after the directions in WP No. 720/2021 and WP No.11707/2021.
12.1 The petitioners in each of these petitions have produced copies of the Office Notes7 pertaining to consideration of these representations and suggestions. These Notes inter alia establish that 7 Annexure Q to the petition in WP number 9886/2023, Annexure N to the petition in WP number 7413/2023 and Annexure H to the petition in WP number 12361/2023
- 26 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 a Deputy Opposition Leader, Karnataka Legislative Council and former MLA has written for modification [issuance of extension] for the fourth respondent's Subject Permits as published in the Addendum dated 23.03.2018. The details of the Office Note relevant for the purposes of answering one of the questions framed are referred to and discussed while answering the same.
The Comprehensive Area Scheme dated 07.03.2019 and the proceedings challenging the decision to renew the fourth respondent's Subject Permits.
13. In the meanwhile the State Government, in supersession of the earlier Scheme/s, has published the Comprehensive Area Scheme on 07.03.2019 [Annexure P in WP No 9886/2023] allowing the STUs to operate on all the routes in the States exempting the private operators to operate on the Scheme Routes only in respect of services in operation with the permits valid and operational as
- 27 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 on 18.12.2014. In fact, presently another Comprehensive Scheme is published, and the permits valid and operational as on 18.12.2014, amongst others, are saved.
13.1 The fourth respondent has filed applications for renewal of the Subject Permits. The same is considered by the KSTA on 21.04.2022 [after the proceedings on 03.03.2022 and 22.03.2022] and the renewals sought for are granted. The KSTA's order for grant of renewal is challenged before the Appellate Tribunal [by the petitioner in WP No. 7413/2023] in R. P. Nos. 63 & 64 and by M/s KSRTC in RP Nos 79 & 80/2022. The Appellate Tribunal by its order dated 23.08.2022 has remanded the matter to the authority to reconsider the renewal application afresh and has allowed for the operation of the permits until the afresh disposal of the remand. It is submitted that no decision is taken in this regard after the Appellate Tribunal's aforesaid order.
- 28 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 The details of the impugned Notifications/ Circular which are the cause for the present petitions.
A] Notification bearing No. TD 343 TDO 219 dated 04-03-2023:
14. This Notification is issued notifying the corrections in the Seventh Supplemental Agreement published on 07.03.2008 referring to the earlier proceedings starting from the first notification of the Seventh Supplemental Agreement in the year 2005 and recording that after the orders of this Court in WP No.720/2021 and WP No.11707/2021 the representations/suggestions filed have been considered by the State Government on 19.01.2022 and 26.05.2022. The terms notified, stipulating that the similar notification Gazetted by the State of Andhra Pradesh will apply, read as under:
• The Inter-state routes, in relation to the permits indicated in Column No. 3 are
- 29 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 modified as indicated at Column No. 4, n Annexure-VIII of this Notification.
• All the covenants and clauses
narrated in the 7th Supplemental
Inter-State Transport Reciprocal
Agreement published in the
Notification No. TRD 02 TMI 2003,
Bangalore dated 7th March 2008/
published in Karnataka Gazette Part IV-A dated: 07-03-2008 shall be applicable.
14.1 Thus, the State Government, in exercise of the powers under Section 88[6] of MV Act, has published the Final Agreement between the States of Karnataka and Andhra Pradesh in relation to the fourth respondent's routes indicated in serial No.6, 43 & 68 and 69 of Annexure-VIII [enabling extension of the Routes between Kadri to B Kothakota and Chintamani to Bangalore with additional trips and vehicle] while correcting the error in mentioning the distance as 188 [116+79] instead of 195.
- 30 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 B] Notification bearing No. TD 343 [1] TDO 219 dated 04.03. 2023 14.2 The State Government has relaxed the provisions of Section 80[3] of the Act insofar as the Permits No. 17/99, 58/98 and 66/98 [the fourth respondent's Subject Permits as modified in the Seventh Supplemental Inter-State Agreement notified on 04.03.2008] referring to the different Comprehensive Schemes published as of 04.03.2023 and assertedly in public interest and upon being fully satisfied with the need to provide additional transport facility. The State Government in this Notification has stipulated [a] that all the covenants and clauses narrated in the Seventh Supplemental Inter-state Transport Reciprocal Agreement are applicable to these permits and [b] that the terms of the modified approved Scheme as notified by the State of Andhra Pradesh on 30.07.2009 shall also apply. Further, the State Government has issued directions to the KSTA to issue requisite Endorsements and assign timings.
- 31 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 C] Circulation note KSTA:SL.No13/Sub.No.13/ 2022-23 dated 21.03.2023 14.3 The KSTA, pursuant to the afore Notifications dated 04.03.2023, has directed the Additional Commissioner for Transport and Secretary, KSTA to give effect to the directions issued in these Notification by issuing suitable directions/ orders/ Endorsement to the fourth respondent assigning suitable timings to the Permit in Nos. 17/99, 58 /98 and 66/ 98 on the modified routes while also stipulating that the fourth respondent must obtain counter signature from the Andhra Pradesh State Transport Authority within 30 days from the date of the Endorsement.
The Interim Arrangement in these writ petitions and the amendment of the petition in No. 9886/2023 [By KSRTC].
15. This Court, on 05.04.2023, at the first instance in WP No. 7413/2023, while providing
- 32 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 for tagging of this petition with another petition in WP No. 7373/20238, has granted Interim Order, and this Interim Order reads as follows:
"it is made clear that in the event permit is issued in the interregnum the same will be subject to the outcome of the writ petition".
Later, the other two petitions in 9886/2023 and 12361/2023 are tagged, and with the pleadings being completed, the petition is taken up for final disposal as requested by the learned counsels for the parties.
16. The petition in WP No 9886/2023 [by M/s KSRTC] is amended to raise additional grounds such as personal bias against one of the members of the KSTA who is the party to the impugned Circulation Note dated 21.03.2023 and the fourth respondent is also permitted to produce additional documents to refute the allegations of personal bias. However, on 22.11.2023, KSRTC has 8 This writ petition is later de-tagged and disposed of as withdrawn pursuant to compromise on 25.05.2023.
- 33 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 given up the ground of personal bias, and as such, the merits of the rival submissions in this regard are not examined.
Questions formulated for consideration
17. In the light of the facts and circumstances and the rival submissions, the following questions are formulated for consideration:
[A] Whether these petitions must be dismissed on the ground that the petitioners do not have locus standi to challenge the impugned Notifications dated 04.03.2023/ Circulation Note dated 21.03.2023 that inures to the advantage of the fourth respondent.
[B] Whether the petitioners justifiably contend that the impugned Notifications dated 04.03.2023 could not have been issued because its Seventh Supplemental Agreement vide Notification dated 07.03.2008 issued under Section 88[6] of the MV Act insofar as the fourth respondent's
- 34 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 Subject Permits is quashed or upset in the earlier proceedings.
[C] Whether the State Government could have issued the impugned Notifications dated 04.03.2023, in exercise of its powers under Section 67 and 88[6] of the MV Act granting relaxation from the rigours of Section 80[3] of the MV Act.
[D][i] Whether the impugned Notifications dated 04.03.2023 could have been issued when the writ petitions in WP Nos.19212/2018 and 19750/2018 are pending consideration.
D[ii] What would be the impact of this Court's decision in these writ petitions on the outcome in WP Nos.19212/2018 and 19750/2018.
The rival submissions on Question [A]:
18. Sri P S Rajagopal, the learned senior counsel for the fourth respondent, submits that the petitioner in WP Nos. 7413/2023 and 12361/2023
- 35 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 operate their permits between Kadri to Bangalore, but their lines of travel are different; that M/s. KSRTC does not even operate between Kadri to Bangalore, and therefore, none of these petitioners are affected by the State Government's decision to modify the Seventh Supplemental Agreement to include the fourth respondents permits [Subject Permits] to operate between to Kadri to Bangalore via B Kothakota and Chintamani.
18.1 Sri P S Rajagopal relying, upon the decision of the Apex Court in Northern Plastics Ltd. v. Hindustan Photo Films Manufacturing Co. Ltd. and others9, submits that the settled position is that to earn locus standi a person aggrieved must show that he/ she has a direct legal interest in the adjudication process and that if a person cannot establish that a particular legal interest is infringed, 9 [1977] 4 Supreme Court Cases 452
- 36 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 locus akin to the wider concept of locus standi in public interest litigation cannot be invoked.
18.2 Sri B R S Gupta and Sri M.E. Nagesh, the learned counsels for the petitioners in WP No. 7413/2023 and 12361/2023 respectively, without disputing this proposition canvas that it cannot be applied in the facts and circumstances of the present petitions because, though lines of travel may not be exactly the same for these petitioners, if the subject permits are operated, the carriage for these petitioners would be affected because the petitioners' lines of travel are as follows:.
• the termini for the petitioner in WP 7413 of 2023 is Hindupur and B Kothakota and the overlapping line of travel would be between Siddlaghatta and Chintamani, and • the termini for the petitioners' in WP 12361/ 2023 [i] The first petitioner-
Murugamalla and Bangalore via Chintamani in a loop route and [ii] The
- 37 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 second petitioner- Chintamani and Kadri via Cheluru.
The learned counsels also emphasize that one of the termini for these petitioners is definitely Kadri or Bangalore or B Kothakota and that the fourth respondent who can, as per the existing permits, operate only between B Kothakota to Chintamani, if the modification prevails, will operate between Kadri to Bangalore via Chintamani and Siddlaghatta.
18.3 Sri P S Rajagopal, as regards the petition by M/s KSRTC, additionally contends that, because M/s KSRTC is a State Road Corporation, the directions issued under Section 67 of the MV Act partake the character of directions under Section 34 of the Road Transport Corporation Act, 1950 [1950 Act] and that M/s KSRTC, which is a creation of the State under Section 3 of the 1950 Act and is wholly- owned by the State Government, cannot have a stand different from that of the State Government.
- 38 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 This Court's conclusion on Question [A]:
19. The lines of travel for the petitioners in WP 7413/2023 and 12361/2023 and the fourth respondent can be represented in the following manner for the purposes of the present writ petitions without showing the lines of travel in all its details. The fourth respondent's line of travel is indicated in Green. The line of travel for the petitioner in WP No. 7413/2023 is indicated in Blue and the lines of travel for the petitioners in WP No.12361/2023 are indicated in Red and Purple respectively.
- 39 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 19.1 It can be seen from the above that though the petitioners in WP No. 7431/2023 and WP No.12361/2023 and the fourth respondent do not have the same line of travel, but definitely their lines of travel will either overlap in some sections or cross at some place because of the impugned Notifications. The respective lines of travel overlap in itself should be material because one the essential questions for consideration in these petitions at the instance of the petitioners is whether the State Government could have granted relaxation from the provisions of Section 80[3] of the MV Act to enable modification of the fourth respondent's Subject Permits enabling her to operate between Kadri to Bangalore via B. Kothakota and Chintamani.
19.2 This Court's consistent view is that any aggrieved person or a person whose rights are affected can either avail appellate remedy under Section 89 or under Section 90 of the MV Act. As
- 40 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 regards the right of an 'aggrieved person' to avail appellate remedy under Section 89 of the MV Act, this Court must refer to the decision in N.S. Abdul Gafoor v. Karnataka State Transport Authority10, and as regards the right to avail remedy under Section 90 of the MV Act, this Court must refer to the decisions in Sadashiva Reddy v. Lala Sheriff11 and in V. Yakeen Ali v. the Secretary, KSRTC12.
19.3 The petitioners' specific case, even in the earlier order of litigation, has been to contend that the fourth respondent is being given the benefit of extension of more than 24 km contrary to the provisions of Section 80[3] of the MV Act; and in the present proceedings, apart from this ground, these petitioners also propose to contend that the State Government could not have, either while considering the objections/presentations for issuance of final 10 2017 SCC OnLine Kar 1565 11 lLR 1999 Kar. 666 [Division Bench] 12 ILR 2007 Kar 1773
- 41 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 notification under Section 88[6] of the MV Act or even otherwise, exercised its jurisdiction under Section 67 of the MV Act.
19.4 The petitioners' case is that their carriage permits will be affected with the fourth respondent operating the subject permits between Kadri to Bangalore via B Kothakota and Chintamani, but as regards the locus to challenge the impugned notifications on this ground, this Court must observe that the possible impact on the commercial interests of these petitioners in itself will not confer any locus. However, as has been held by the five judges' bench of the Kerala High Court in M C Ratheesh v. Regional Transport Authority13 if it could be shown that a decision is taken to enable permits contrary to the statutory provisions, the Court must infer locus. The observation in this case reads as hereunder:
13 2014 SCC Online Ker 26668
- 42 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 "We, thus, conclude that although the existing permit holders have no right and cannot be held to be aggrieved person when they sought to challenge a grant of permanent on the sole ground, that the grant of permit shall prejudicially affect their commercial interest. But, in case where the grant is in a statutory violation, the right to file revision under Section 90 or file Writ petition or writ appeal cannot be denied."
19.5 If locus to challenge the impugned Notifications/Circulation Note is thus recognized in the individual petitioners, this Court is of the considered view that locus in M/s KSRTC to challenge the impugned notifications/Circulation Note must necessarily be accepted because it enjoys preferential right under the appropriate Comprehensive Schemes to the exclusion of others [except those who hold permits that are saved].
19.6 As regards the maintainability of the petition in WP No. 9886/2023 by M/s KSRTC,
- 43 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 reliance is placed upon the provisions of Section 34 of the Road Transport Corporation Act, and these provisions read as under:
"34. Directions by the State Government
-
[1] The State Government may, after
consultation with a Corporation
established by such Government,
give to the Corporation general
instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks.
[2] In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub-section [1] except with the previous permission of the State Government.
- 44 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 19.7 A reading of these provisions leaves no room for doubt that when a state government invokes the jurisdiction under this section and issues any specific direction, or even general directions, a Road Transport Corporation cannot depart from these directions unless the state government concerned grants prior permission. However, in the present factual matrix it is nobody's case that the State Government has invoked jurisdiction under Section 34 of this Act to issue any direction, and in fact, the directions in the impugned notification dated 04.03.2023 are under the provisions of the MV Act to the KSTA to issue endorsement to facilitate timings and other requirements. This Court, in the light of the circumstances in which locus is inferred and for reasons above, must answer Question [A] in favour of the petitioners holding that the petitions cannot be dismissed on the ground of lack of locus, and is answered accordingly.
- 45 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 The rival submissions on Question [B]
20. Sri M.E. Nagesh, Sri B.R.S. Gupta, Sri Hareesh Bhandary [the learned Counsel for M/s KSRTC] contend that the final Seventh Supplemental Agreement between the States of Karnataka and Andhra Pradesh dated 07.03.2008 is published and gazetted by the Governments of Karnataka and Andhra Pradesh and that this Agreement would have prevailed without any change [including the subject the fourth respondent's permits to operate between Kadri and Bangalore via B Kothakota and Chintamani], but for the order in the writ proceedings in WP No. 4950/2008 and connected matters which is confirmed both by the Division Bench in WA No. 5548-5550/2011 on 20.02.2015, concluding with the Supreme Court's order dated 10.07.2015 in SLP [C] No. 17234 - 17242/2015.
20.1 Sri M.E. Nagesh, supported by Sri B.R.S. Gupta and Sri Hareesh Bhandary and relying
- 46 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 upon the assertion as above, canvasses that the consequence of intervention in these proceedings is that the fourth respondent's Subject Permits cannot be part of the Seventh Supplemental Agreement, and they contend that nevertheless, the State Government has continued with its efforts to incorporate the fourth respondent's Subject Permits into the Seventh Supplemental Agreement with the issuance of Addendum dated 23.03.2018 [which is subject to the orders of this Court in writ petitions in WP No.720/2021 and WP No.11707/2021] and Corrigendum dated 23.03.2018 [the merits of which is pending consideration in WP No. 19212/2018 and connected writ petition].
20.2 In rebuttal, Sri P S Rajagopal points out that the grievance of the petitioners in WP Nos 4950/2008 and connected matters with the Final Notification dated 07.03.2008 was only with the modification of the Seventh Supplemental Agreement
- 47 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 in respect of the fourth respondent's permits at Sl.Nos.43, 68 and 69 [Subject Permits] because the details as published under this notification were different from the terms of the Draft Notification dated 01.10.2007 and therefore, the petitioners cannot contend that the Final Notification dated 07.03.2008 is quashed or that the further notifications could not have been issued to incorporate the proposed modifications. This Court's conclusion on Question [B]:
21. However, this Court must observe that neither the petitioners nor the respondent can dispute that certain third parties, whose permits could be construed as disturbed by the Common order dated 08.12.2010 in WP Nos. 4950/2008, 5148/2008 and 10597/2008, have challenged the order dated in another set of intra-court appeals in WA Nos. 5536-5540/2011 and connected appeals
- 48 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 were filed. These intra - court appeals are allowed on 11.03.2013 observing thus:
"In the result, the appeals are allowed. The order passed by the Learned Single Judge in WP No.4950/2008 and other connected matters dt.8.12.2010 is hereby modified holding that the said order will not bind the appellants and their permits and it is made it very clear that the said order would confine to the Sl.No.43, 68 and 69 of Venkataramanappa who was the 3rd respondent before the learned Single Judge. It is also made it clear, against the order passed by the Learned Single Judge, Venkataramanappa, has also filed separate appeal which will be dealt with separately. Wherever the appellants are not parties before the learned Single Judge, no relief was sought against them."
In the light of this observation by the Division Bench, this Court must opine that it remains beyond dispute that the Final Notification dated 07.03.2008 issued to bring into being Seventh Supplemental Agreement is not quashed in its entirety and that the order dated
- 49 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 08.12.2010 in WP No.4950/2008 and connected matters would only be confined to the fourth respondent's Subject Permits.
21.1 Further, if the Seventh Supplemental Agreement dated 07.03.2008 issued under Section 88[6] of the MV Act thus subsists otherwise, the issuance of the Notification dated 23.03.2018 under Section 88[5] of the MV Act as Addendum to such Final Notification, especially with the liberty reserved by this Court in WP No. 4950/2008 and connected matters, would not even suffer from a technical difficulty. As the Seventh Supplemental Agreement subsists it must necessarily follow, with the liberty as aforesaid, that the State Government could have exercised its jurisdiction under Section 88[5] of the MV Act to issue Addendum dated 23.03.2018.
- 50 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 21.2 Therefore, the Addendum dated 23.03.2018 must be held to be permissible, and if the impugned Notification dated 04.03.2023 is issued under Section 88[6] of the MV Act, after considering the objections/representations filed in response to the Addendum dated 23.03.2018, this Court cannot opine that such Notification dated 04.03.2023 could not have been issued under Section 88[6] of the MV Act as addendum to the Final Notification dated 07.03.2008. The Question No. [B] is answered accordingly.
The rival submissions on Question [C]
22. Sri M.E. Nagesh, the learned counsel who leads for the petitioners in the submissions based on which the present question is formulated for consideration, submits that the State Government has chosen to modify the fourth respondent's Subject Permits notwithstanding certain circumstances and definite provisions of the MV Act, and therefore, the
- 51 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 impugned notifications and the circulation note/order are vitiated, and the learned counsel elaborates his submissions in this regard as captured next.
22.1 Sri M.E. Nagesh argues that a State Government can publish, acting in exercise of the provisions of Section 99 of the Chapter-VI of the MV Act, a proposal for a Scheme when it is of the opinion that it is required in the public interest for the purposes of providing an efficient, adequate, economical and properly coordinated transport service or that the road transport service [in general or in particular class of such service in relation to any area or route, or portion thereof] should be run and operated only by the STUs to the complete or partial exclusion of the others. A State Government can also modify or approve a Scheme published under Section 100[3] of the MV Act upon considering the objections
- 52 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 filed to the proposal, and after hearing the objectors or their representatives.
22.2 Sri M.E. Nagesh, while emphasizing that Section 98 of the Act gives precedence to the provisions in Chapter VI of the Act, contends that the settled position is that a Scheme so published is a law and there cannot be any decision that undermines the terms of a Scheme published in any manner unless the Scheme is either cancelled or modified, as is contemplated under Section 102 of the MV Act, after giving an opportunity to the STU or any other person who is likely to be affected by the proposal; and that once a Scheme is published under Section 100[3] of the MV Act, STA [or RTA] cannot grant any permit except in accordance with the scheme as stipulated Section 104 of the MV Act.
22.3 Sri M.E. Nagesh, underscoring the afore as preface, submits that the State Government
- 53 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 has notified New Comprehensive Area Scheme for the entire State vide Notification dated 07.03.2019 stipulating that only M/s KSRTC shall operate services to the complete exclusion of other persons subject to certain exceptions, and insofar as private operators the exception is only in favour of the following:
[i] the permits granted and are in operation as of 18.12.2014 and where the request for renewal to operate services on interstate/intrastate and inter district/intra district rules are pending consideration, [ii] the existing stage carriage permits that are in operation as on 24.03.2018 with trips and vehicles and operating on non-monopoly routes, and [iii] the existing permits in operation according to the Notification dated 28.09.2017 subject to the decision of this court in pending matters.
- 54 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 The learned Counsel submits that therefore, the fourth respondent' Subject Permits, which are only from B. Kothakota to Chintamani and back with certain trips and vehicles could be saved in terms of the afore New Comprehensive Scheme, but modification to the Subject Permits enabling the fourth respondent to operate from Kadri to Bangalore and back will be despite the Scheme.
22.4 Sri M.E. Nagesh contends that petitioners have filed their representations/objections objecting to any further notification pursuant to the Notification dated 23.03.2023, and that while considering these representations/objections, the impugned notifications are issued invoking simultaneously the provisions of Section 67 of the MV Act. Thus, the submissions are to contend that the impugned notifications are vitiated and without due consideration of the petitioners' representations and
- 55 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 objections. Sri M.E. Nagesh next argues these further grounds.
[i] the impugned notifications modify [by variation] the fourth respondent's inter-state permits, and any variation of even the inter-state permits will have to be according to the procedure contemplated under Section 80 of the MV Act, and in that event the variation can only be upto 24 Kms as is stipulated under Section 80[3] of the MV Act. The State Government could not have resorted to provisions of Section 88 of the MV Act to grant variation of the fourth respondent's Subject Permits ignoring the provisions of Section 80[3] of the MV Act.
- 56 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 [ii] The provisions of Section 67 [3] of the M.V. Act, which is invoked to issue the Notification dated 04.03.2023 bearing No. TD 343 [1] TDO 2019, begins with a non-
obstante clause but Section 67[4] specifically stipulates that any Scheme framed under sub-section [1] thereof shall specify the fee to be charged apart from the form of application for grant of licences, and that unless the relevant rules are framed in this regard, the State Government will have no power under Section 67[3] to modify any permit much less inter-state permits.
22.5 Sri P.S. Rajagopal, on the other hand, at the outset refutes the contention that the State Government has not considered the
- 57 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 representations/ objections filed in response to the Addendum dated 23.03.2018 as directed by this Court in WP No. 720/2021 and WP No.11707/2021, asserting that this Court cannot interfere with the impugned Notifications, or the impugned Circulation Note, adverting to the Office Note [which records the details of the proceedings with the Government of Karnataka] because the Representations/Objections have been considered in the meetings presided by the Principal Secretary and after conclusion of the hearing in which the petitioners and others are extended due opportunity.
22.6 Sri P.S. Rajagopal emphasizes that after due consideration of all the Representations/Objections, and given the jurisdiction of a state government under Section 67 and 88 of the MV Act, the Transport Minister has ultimately decided on issuance of the impugned notifications, and in the circumstances in which the
- 58 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 decision is taken and in the absence of any material to establish legal malice, this Court cannot reasonably opine that the impugned notifications are vitiated or that it is arbitrarily issued without considering the Representations/Objections.
22.7 Sri P.S. Rajagopal, as regards the other contentions, submits that the provisions of Section 67[1] are substituted by the MV Amendment Act 2019 vesting in the State Government the jurisdiction to issue directions for passengers' convenience, to ensure economically competitive fares and road safety and to prevent overcrowding having regard, inter alia, to the promotion of effective competition among the transport service providers. The learned Senior Counsel contends that this amendment substitutes the earlier corresponding provision which contemplated desirability of preventing uneconomic competition among permit holders.
- 59 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 22.8 Sri P.S. Rajagopal argues that the object of this amendment by substitution is to encourage effective competition amongst the transport service providers [including STU] and is a departure from the earlier stipulation, and the importance of promoting effective competition is underscored by the proviso to Section 67[2] of the MV Act which empowers the State to relax all or any of the provisions under Chapter-V including Section 67[1] with a view to achieve the objective of promoting effective competition among transport service providers. The learned Senior Counsel argues that the obvious corollary is that a State Government under Section 67[3] of the MV Act may relax even the applicability of the provisions of Section 80[3] which restricts the power to allow variation beyond 24 KMS while modifying permits.
22.9 Sri P.S. Rajagopal contends that the provisions of Section 67[3] of the MV Act which begin
- 60 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 with non obstante clause as against anything contained in the Act empower the State Government by notification to modify any permit issued under the Act or to make a Scheme for transportation of goods and passengers and to ensure, amongst others, last mile connectivity, rural transport, better utilization of transportation assets and increase in the accessibility and mobility of people.
22.10 Sri P.S. Rajagopal argues that the State Government under Section 67[3] of the MV Act may either make a scheme or modify an existing permit, and only when a scheme is framed, rules as contemplated under Section 67[4] of the MV Act would be required and not otherwise, and the learned Senior Counsel refutes the contention on behalf of the petitioners that even for modification of permits as contemplated under Section 67[3] of the MV Act there must be rules is a contrived reading of the provisions.
- 61 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 22.11 Sri P.S. Rajagopal submits that once the notification under Section 67[3] of the MV Act is issued what is required is the ministerial act of issuing appropriate endorsement and a decision on timing, without the need for any separate rules, and this position will not be novel to the MV Act inasmuch as when a scheme is approved under Chapter -VI, the STA or the RTA issues permits notwithstanding the provisions of Chapter-V. In this regard, the learned Senior Counsel draws that attention of this Court to the provisions of Section 103 of MV Act.
This Court's conclusion on Question [C]:
23. The rival submissions must indeed be considered, amongst others, in the light of the fact that the petitioners have not challenged the vires of any provision of Section 67 of MV Act and the salient proposition that for inter-state permits, there must be
- 62 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 inter-state agreement between the two concerned States14 and that such agreement can come about only when a draft notification is published [and gazetted] under Section 88[5] of the MV Act and final notification is published [and gazetted] under Section 88[6] of the MV Act after consideration of objections and representations filed. In the present case, the question whether there is an inter-state agreement insofar as the fourth respondent's Subject Permits [i.e. permits in 17/99/ 58/98 and 66/98 for trips between Kadri and Bangalore via Chintamani] must first be examined in the light of the indisputable fact that the State of Andhra Pradesh has published its Notification in this regard on 30.07.2009 and signified its consent to the modification of the fourth respondent's Subject Permits to operate from Kadri to Bengaluru.
14 The reference is to the proposition exposited by the Apex Court in Ashwini Kumar and S. Venkatakrishna Cases [supra]
- 63 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 23.1 This Court, insofar as the notification of the fourth respondent's Subject Permits as part of such inter-state agreement by the State Government, must observe that it is subject matter of different litigation ultimately resulting in the Addendum notified on 23.03.2018 under Section 88[5] of the MV Act. The impugned notification dated 04.03.2023 in No. TD 343 TDO 2019 under Section 88[6] after this notification dated 23.03.2018, according to the State Government and the fourth respondent, is issued after considering the objections/ representations filed by the petitioners and others pursuant to the Addendum notified 23.03.2018.
23.2 This Court has opined while answering Question No. [B] that no exception can be taken with the issuance of Notification dated 23.03.2018 under Section 88[5] of the MV Act as an addendum to the Final Notification dated 07.03.2008
- 64 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 or the impugned Notification dated 04.03.2023 on the ground that the Final Notification 07.03.2008 is quashed in its entirety or otherwise. This Court in this regard has considered the import of the orders of the Division Bench in WA Nos. 5536-5540/2011 and the liberty reserved in WP No. 4950/2008 and connected matters which is not disturbed howsoever.
23.3 The petitioners contend that with the issuance of Notification dated 23.03.2018 as an Addendum to the Final Notification dated 07.03.2008 to include the fourth respondent's Subject Permits in the Seventh Supplemental Agreement, the Notification dated 23.03.2018 [Addendum] is called in question and that this Court in WP No.720/2021 and in WP No. 11907/2021 [filed impugning the Notification dated 23.03.2018] has directed the Principal Secretary, Department of Transport, to consider the petitioners' objections. It is argued that this Authority has heard the petitioners and others
- 65 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 on the objections filed, but the representations and objections are not considered and in a manner of changing tack, simultaneous notifications are issued on 04.03.2023 under the provisions of Section 88[6] and Section 67[2] and [3] of the MV Act.
23.4 The petitioners as also the fourth respondent rely upon the office Note to demonstrate the respective positions. This Court to resolve the controversy in this regard as perused the Office Note, and the following emerge as indisputable contents of the Office Note.
[A] A Deputy Opposition Leader, Karnataka Legislative Council and former MLA has written for modification [issuance of extension] for the fourth respondent's permit in number 17/99, 58/98 and 66/98 as published in the Corrigendum dated 23.03.2018.
- 66 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 [B] It is recorded [Note No. 8 dated 06.02.2020] that affirmation is sought from the State Government of Andhra Pradesh on the extension for the permits, but the same is not received. However, the State Government of Andhra Pradesh has expressed its willingness for such modification [variation] even before the issuance of Final Notification dated 07.03.2008 and notified the Agreement on 30.07.2009.
[C] The fourth respondent has also filed an application seeking relaxation from the rigours under Section 80[3] of the MV Act while seeking modification [extension] for the permits.
- 67 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 [D] The amendment of the provisions of Section 67 of the MV Act as amended with effect from 01.09.2019 vide Motor Vehicles [Amendment] Act, 2019 [MV Amendment Act 2019] is taken note of observing that a decision will have to be taken in public interest because there would be no railway or main road facilities in rural areas and to provide for effective and economical last mile connectivity, and given the density of travelling between the two states appropriate. [E] The provisions of Section 67 of the MV Act are read to infer that they empower the State Government to relax the rigours of Section 80[3] of the Act as also the other provisions.
- 68 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 [F] The initial proposal, in view of the above is to either:
Issue Notification under Section 67[2] and [3] of the MV Act granting relaxation from the requirements of Section 80[3] 88[4] and 88 [5] Act for the fourth respondent's permits in No. 17/99, 58/98 and 66/98 or After considering the objections and the suggestions filed as contemplated under Section 88 [5] of the MV Act, decide on issuing notification under Section 88[6] of the Act.
[G] There is a reference to the objections of the KSRTC [i.e., there cannot be inter-state permits without inter-state agreements in view of the decision of the Apex Court] and private operators based on the earlier proceedings.
- 69 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 [H] There is also a reference to the meeting chaired by principal Secretary and the communication to the participants stating that the suggestions and objections would be considered, and appropriate decision taken in accordance with.
[J] As seen in Note No.115, a reference is made to the opinion of the Law Department that it would be open to the Transport Department to either:
Await the outcome of the petitions in WP No. 19212/2018 and 19750 of 2018 or Take further action on the request for notification under Section 67 of the MV Act subject to the outcome in these writ petitions.
- 70 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 [K] Finally, it seen from Note No. 120 dated 04.02.2023, which is by the then Transport Minister, a decision seems to be taken for issuance of notifications both under Section 88 [6] and Section 67 of the MV Act and this becomes rather obvious with the Note in No. 128, which is dated 04.03.2023. 23.5 This Court in the light of the above cannot opine that the representations/ Objections have not at all been considered, or that these representations and objections have not been considered only because the impugned notifications are simultaneously published under Section 88[6] and Section 67[3] of the MV Act. Insofar as the invocation of jurisdiction under Section 67[3] of the MV Act, the same must be examined in the light of the rival contentions.
- 71 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 23.6 The petitioners' primary assertions as regards the exercise of jurisdiction under Section 67 of the MV Act are that such jurisdiction cannot be exercised contrary to a Comprehensive Scheme published under Chapter-V in view of the provisions of Section 98 of the Act, and that if a permit cannot be varied beyond 24 Kms in view of the prohibition under Section 80[3] of the Act, the same cannot be achieved either by simultaneously invoking Section 88 and 67[3] of the Act or invoking Section 67 of the Act by itself.
23.7 The provisions of Section 67[1] with the amendment as aforesaid reads as under:
(1) A State Government, having regard to--
(a) the advantages offered to the public, trade and industry by the development of motor transport,
(b) the desirability of coordinating road and rail transport,
(c) the desirability of preventing the deterioration of the road system, and
- 72 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023
(d) promoting effective competition among the transport service providers, may, from time to time, by notification in the Official Gazette issue directions both to the State Transport Authority and Regional Transport Authority regarding the passengers' convenience, economically competitive fares, prevention of overcrowding and road safety.
The amendment of Section 67[1] is by substitution and on a juxtaposed reading of the initial and substituted provisions of Section 67[1] 15 of the MV Act it is obvious that there is a substantial departure 15 67. Power to State Government to control road transport-- (1) A State Government, having regard to--
(a) the advantages offered to the public, trade and industry by the development of motor transport,
(b) the desirability of coordinating road and rail transport,
(c) the desirability of preventing the deterioration of the road system, and
(d) the desirability of preventing uneconomic competition among holders of permits, may, from time to time, by notification in the Official Gazette, issue directions both to the State Transport Authority and Regional Transport Authority-- Note:- The other part of this Section prior to amendment is about the nature of directions that could be issued and the conditions to subject which directions could be issued.
- 73 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 to vest with the State Government jurisdiction to issue directions to STA and RTA as regards passengers convenience, competitive fares, prevention of overcrowding and road safety having regard to, amongst others, the promotion of effective competition amongst the transport service providers. The contrast brought about by this amendment as regards promoting competition amongst transport service providers read as under:
Subsequent to Amendment Prior to Amendment promoting effective competition the desirability of preventing among the transport service uneconomic competition among providers holders of permits 23.8 The State Government, with this shift in focus from desirability of preventing uneconomic competition to promoting effective competition amongst transport service providers, can issue directions to the STA [or RTA] to ensure passengers' convenience, economically competitive fares, prevention of overcrowding and road safety
- 74 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 keeping in mind the different facets mentioned in the first part of the Section. If this is the change in Section 67[1], the provisions of Section 67[3] and 67[4] inserted by way amendment add a wider dimension to the powers of a state government under this Section. The provisions of Section provisions of Section 67[3] and 67[4] of the MV Act read as under:
"(3) Notwithstanding anything contained in this Act, the State Government may, by notification in the Official Gazette, modify any permit issued under this Act or make schemes for the transportation of goods and passengers and issue licences under such scheme for the promotion of development and efficiency in transportation--
(a) last mile connectivity,
(b) rural transport,
(c) reducing traffic congestion,
(d) improving urban transport,
(e) safety of road users,
(f) better utilisation of transportation assets; (g) the enhancement of economic vitality of the area, through competitiveness, productivity and efficiency,
- 75 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023
(h) the increase in the accessibility and mobility of people; (i) the protection and enhancement of the environment; (j) the promotion of energy conservation,
(k) improvement of the quality of life,
(l) enhance integration and connectivity of the transportation system, across and between modes of transport; and
(m) such other matters as the Central Government may deem fit.
(4) The scheme framed under sub-section (3), shall specify the fees to be charged, form of application and grant of a licence including the renewal, suspension, cancellation or modification of such licence.".
23.9 The provisions of 67[3] of the MV Act read, notwithstanding anything contained in the Act, a state government is empowered to either modify permit or make a Scheme for the purposes listed therein. This Court must opine that the first reading of this provision must be that a state government, acting under this Section, can modify all permits including the inter-state permit. However, the petitioners contend that, given the provisions of
- 76 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 Section 9816 of the Act, the New Comprehensive Scheme notified on 07.03.2019 [which limits only to the permits as they exist with the number of trips and vehicles would only be saved] published under Section 100[3] of the MV Act will prevail, and that this Scheme cannot be altered invoking the provisions of Section 67[3]. They assert that the impugned Notification dated 04.03.2023 has the effect of altering this Comprehensive Scheme.
23.10 The provisions of Section 98 of the MV Act do indeed stipulate that the provisions of Chapter VI shall have effect notwithstanding anything contained in Chapter V [Section 67 is part of this Chapter] and the provisions of Section 67[3] also begins with the expression Notwithstanding anything 16 98. Chapter to override Chapter V and other laws:--
The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law
- 77 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 contained in this Act. This Court is thus called upon to resolve the conflict between these two provisions.
This Court must refer to the decision of the Supreme Court in State of Bihar vs Bihar Rajya MSESKK Mahasangh17: The exposition in this decision is that when two or more laws or provisions operate in the same field and each contains a non-obstante clause stating that its provision will override those of any other provisions or law, a question arises for interpretation and this question must be answered with reference to the object and purpose of each of the two provisions containing non-obstante clause and no settled principles can be applied. It is also exposited that the two provisions in the same Act, each containing a non-obstante clause, requires a harmonious interpretation to resolve the two seemingly conflicting provisions.
17 2005 [9] SCC 129
- 78 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 23.11 The Supreme Court's decision in this regards reads as under:
"46. When two or more laws or provisions operate in the same field and each contains a non obstante clause stating that its provision will override those of any other provisions or law, stimulating and intricate problems of interpretation arise. In resolving such problems of interpretation, no settled principles can be applied except to refer to the object and purpose of each of the two provisions, containing a non obstante clause. Two provisions in the same Act, each containing a non obstante clause, require a harmonious interpretation of the two seemingly conflicting provisions in the same Act. In this difficult exercise, there are involved proper considerations of giving effect to the object and purpose of two provisions and the language employed in each."
(Underlining by this Court)
- 79 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 23.12 As such, a harmonious reading of the two provisions in the context of the purpose sought to be achieved is inevitable. This Court must also observe that the Statement of Objects appended to a Statute or bringing an amendment to a Statute would be an external aid that could be examined while interpreting the provisions of the concerned statute, and insofar as the decision of the Supreme Court in this regard a reference could be made to the following decisions:
[a] Registrar of Firms, Societies and Chits v. Secured Investment Co.18 [b] Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd.19 The Statement of Objects appended to the MV Amendment Act 2019 insofar as Section 67 of the MV Act reads as under:
18 1988 Supp SCC 248 19 (1996) 1 SCC 642
- 80 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 "Clause 31 seeks to amend Section 67 of the Act to empower the State Government to issue directions to the State Transport Authority and the Regional Transport Authority to safeguard the convenience of passengers, prevent overcrowding, promote road safety and provide economically competitive fares. It also empowers the State Government to relax any of the provisions made under Chapter V and modify permits and make schemes for the transportation of goods and passengers to enhance last mile connectivity and rural transport, reduce traffic congestion, improve urban transport, promote safety of road users, better utilisation of transport assets, enhance regional economic vitality, increase accessibility and mobility, protect the environment, promote energy conservation, improve the quality of life and enhance multimodal integration among other purposes."
23.13 It is obvious from this Statement of Objects that the amendment is intended to relax the provisions of Chapter-V and permit modification of permits [and make scheme] to enhance last mile connectivity and rural transport and also increase
- 81 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 accessibility and mobility while providing for better utilisation of transport assets. However, the provisions of Section 67[3] of the MV Act begin with the expression "notwithstanding anything contained in this Act" and does not begin with the expression "notwithstanding anything contained in this chapter"
which should have been if the Legislature intended that the powers under Section 67[3] of the MV Act was to prevail only over the provisions of Chapter-V of the Act.
23.14 This departure in providing for the non-obstante clause as against all the Chapters of the MV Act and not limiting it to Chapter-V, in this Court's considered view, is material. Further, this Court must presume that the Legislature, in its wisdom being aware of the provisions of Section 98 of the MV Act and the consequences thereof given the judicial pronouncements, has amended the other provisions of the Act. In the light of the above this
- 82 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 Court must opine that a harmonious reading of the provisions of Section 67 - more specifically Section 67[3] - of the MV Act with the provisions of Section 98 thereof, insofar as the modification of permits can only be that a state government is not hindered by any of the provisions of Chapter V or the Scheme published under Chapter VI so long as such modification is to achieve the objectives listed in Sub-
clauses [a] to [m] in Section 67[3] of the MV Act.
23.15 This Court, even as regards modification of an inter-state permit, must opine that power under Section 67[3] of the MV Act may be exercised, subject to achieving the objectives as aforesaid, only if there is an inter-state agreement with the concerned State/s and not otherwise, any other reading will enable a State to encroach, by its unilateral action upon, the powers of State/s. This Court for these reasons cannot accept the contention on behalf of the petitioner that modification of
- 83 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 permits [even inter-state permits] can only be under Section 80[3] of the MV Act though the reliance on the proviso to Section 67[2] cannot be accepted. The power of relaxation under proviso to Section 67[2] it is obvious is contextual and is therefore confined to the circumstance stated therein. The provisions of Section 67[2] and the proviso therein read as hereunder:
"Any direction under sub-section [1] regarding the fixing of fares and freights for stage carriages, contract carriages and goods carriages may provide that such fares or freights shall be inclusive of the tax payable by the passengers or the consignors of the goods, as the case may be, to the operators of the stage carriages, contract carriages or goods carriages under any law for the time being in force relating to tax on passengers and goods. Provided that the State Government may subject to such conditions as it may deem fit, and with a view to achieving the objectives specified in clause (d) of sub-
- 84 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 section (1), relax all or any of the provisions made under this Chapter."
23.16 As regards, the contention that the permits cannot be modified because the Rules have not been formulated by the State Government as required under Section 67[4] of the Act, this Court must record that the provisions of Section 67[3] of the Act contemplate [a] modification of permits and [b] making of a Scheme and issue of licences under such Scheme, and Section 67[4] stipulates that when a Scheme is framed, the same shall specify the fee to be charged and the other details. This requirement cannot be read into a situation that arises when a permit is modified, especially when, given the practice, as argued by Sri P S Rajagopal, in the light of the provisions of Section 103 of the MV Act20. 20
"103. Issue of permits to State transport undertakings.-(1) Where, in pursuance of an approved scheme, any State transport undertaking applies in such manner as may be prescribed by the State Government in this behalf for a stage carriage permit or a goods carriage permit or a contract carriage permit in respect of a notified area or notified route, the State Transport Authority in any case where the said area or route lies in more than one region
- 85 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 The Question [C] is answered positively holding the State Government could have issued the impugned Notifications in TD 343 TDO 219 and TD 343 [1] TDO 219 dated 04.03.2023 in exercise of its powers under Section 67[3] beyond the rigours of Section 80[3] of the MV Act.
Regarding Questions D[i] & [ii]
24. The Corrigendum dated 23.03.2018 is issued simultaneously with the Addendum dated 23.03.2018. The Addendum dated 23.03.2018 is and the Regional Transport Authority in any other case shall issue such permit to the State transport undertaking, notwithstanding anything to the contrary contained in Chapter V. (2) For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the State Transport Authority or, as the case may be Regional Transport Authority concerned may, by order,-
(a) refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending; (b) cancel any existing permit; (c) modify the terms of any existing permit so as to- (i)render the permit ineffective beyond a specified date (ii)reduce the number of vehicles authorized to be used under the permit; (iii)curtail the area or route covered by the permit insofar as such permit relates to the notified area or notified route."
- 86 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 challenged in WP No. 720/2021 and 11707/2021, and contending inter alia that the Final Notification dated 07.03.2008 notifying the Seventh Supplemental Agreement is quashed. This Court has disposed of the writ petition in WP No. 720/2021 directing the State Government to examine Representations/Objection filed in response to the issuance of Addendum dated 23.03.2018 and finalize the final notification under Section 88[6] of the MV Act. This Court's Order in WP No. 720/2021 as regards the above reads as under:
"2. Perusal of the impugned notification dated 23.03.2018 which is addendum to the notification dated 01.10.2007 is in the form of draft. Therefore, the petitioner has statutory right to submit his representation for consideration. It is learnt that petitioner is stated to have submitted representation. In view of these facts and circumstances, the present writ petition is premature. Accordingly, writ petition stands disposed of. The concerned official respondents is hereby directed to take note of the petitioner's
- 87 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 representation and proceed to finalise notification vide Annexure - F dated 23.03.2018 in accordance with law, if it is not already finalised as on this day."
24.1 This Court's interim Order dated 18.06.2018 in WP No.19212/2018 filed calling in question Corrigendum dated 23.03.2018 and the Orders dated 24.06.2021 and 05.07.2021 in WP No. 720/2021 and WP No. 11707/2021 respectively have been accepted by all the parties without demur on such consideration because WP No.19212/2018 and WP No.19750/2018 are pending. It is now contended that the State Government, could not have issued the impugned notifications because the Corrigendum and Addendum dated 23.03.2018 are issued simultaneously and the challenge to the Corrigendum is pending consideration in the aforesaid two petitions in WP No. 19212/2018 and 19750/2018. This Court, as part of hearing for disposal of these petitions, as called upon the learned counsels to file responses in
- 88 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 writing, as a matter of clarification for this Court, on the impact of this Court's decision in these petitions on the pending writ petitions in WP 19212/2018 and connected writ petitions.
24.2 The learned counsels have filed such responses on 03.06.2024. If Sri B R S Gupta [the learned counsel for the petitioner in WP No. 7413/2023] has filed response stating that this Court's decision in petitions will be subject to the result of the decision to be taken in WP 19212/2018 and 19750/2018, Sri Hareesh Bhandary [the learned counsel for the petitioner in WP No. 9886/2023] and Sri C.V. Kumar, the learned Counsel for the fourth respondent, have filed response stating that the decision in this petition will not have any impact on the pending writ petitions in WP Nos.19212/2018 and 19750/2018.
- 89 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 24.3 The questions whether the State Government could have issued the impugned notifications and whether this Court's decision in these writ petitions will have any impact on the pending writ petitions in WP No. 19212/2018 and 19750/2018 will also have to be considered in the backdrop of the following circumstances. After the culmination of the earlier proceedings with the decision of the apex court in SLP No. 17234/2015 on 10.07.2015, the State Government has issued both Addendum and Corrigendum dated 23.03.2018.
24.4 This simultaneous Corrigendum dated 23.03.2018 is published mentioning that it is required to be issued to be in compliance with the directions issued by this Court in the order dated 08.12.2010 and stipulating that it is being issued subject to the terms and conditions of the original Notification dated 07.03.2008. However, the details of the permits as mentioned in the Addendum
- 90 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 [Annexure - VIII] dated 01.10.2007 are retained in the Corrigendum dated 23.03.2018, and thus, the fourth respondent's request for modification [extension] of route and increase in trips and vehicles are incorporated in the Addendum dated 23.03.2018 and not in the Corrigendum dated 23.03.2018.
24.5 This Court may observe that this Corrigendum dated 23.03.2018 seems to be intended only to pre-empt complaints about failure to comply with the requirements of the provisions of Section 88[5] of the MV Act. The challenge to the Corrigendum dated 23.03.2018 is pending consideration in WP Nos.19212/2018 and 19750/2018, and the writ petitions in WP Nos.720/2021 and 11707/2021 filed challenging the Addendum dated 23.03.2018 are disposed of on terms culminating with the notifications impugned in these petitions. This Court, in the peculiarities of the case, is of the opinion that with the questions framed
- 91 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 for consideration in these petitions answers all controversies as regards the modification of the fourth respondent's Subject Permits and therefore, subject to any further proceedings as against this order, the conclusions in the present writ petitions should put to quietus controversy even in WP Nos.19202/2018 and 19750/2018.
24.6 This Court in recording the opinion as aforesaid for consideration is guided by the propositions exposited by the Supreme Court in the following decision. The Supreme Court in M. Nagabhushana v. State of Karnataka21 observing that grounds which were substantially raised by the appellant in the previous appeal have been raised again in this appeal has held thus:
"That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no 21 (2011) 3 SCC 408
- 92 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties."
Further, the Supreme Court has referred to following in its decision in K.K. Modi v. K.N. Modi22.
"One of the examples cited as an abuse of the process of the court is re-litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the 22 (1998) 3 SCC 573
- 93 -
NC: 2024:KHC:22974 WP No. 7413 of 2023 C/W WP No. 9886 of 2023 WP No. 12361 of 2023 same issue is sought to be reagitated, it also amounts to an abuse of the process of the court."
The writ petitions, for the aforesaid reasons, are rejected.
Sd/-
JUDGE nv*