Kerala High Court
Sushamma vs The Regional Transport Authority on 30 November, 2013
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY,THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936
W.P.(C).No.948 of 2014 (P)
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AGAINST THE ORDER IN M.V.A.R.P.No.268/2013 DATED 30.11.2013
OF THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM.
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PETITIONER(S):-
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SUSHAMMA, AGED 50, W/O.REGHU,
KADAMATTUSSERY HOUSE, EZHIKKARA,
NORTH PARUR.
BY ADVS.SRI.M.JITHESH MENON
SMT.K.INDU (POURNAMI).
RESPONDENT(S):-
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1. THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM,
CIVIL LINES, KAKKANAD, KOCHI - 30.
2. THE SECRETARY
REGIONAL TRANSPORT AUTHORITY, ERNAKULAM,
CIVIL LINES, KAKKANAD, KOCHI - 30.
3. THE KERALA STATE ROAD TRANSPORT CORPORATION,
REP.BY ITS DISTRICT TRANSPORT OFFICER,
ERNAKULAM, KOCHI - 11.
R1 & R2 BY GOVERNMENT PLEADER SMT.REMA.
R3 BY STANDING COUNSEL SRI.P.C.CHACKO.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19-03-2014, COURT ON 26-03-2014 DELIVERED THE FOLLOWING:-
WP(C).No.948 of 2014 (P)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXT.P-1: TRUE COPY OF THE CERTIFIED COPY OF THE REPORT
DATED 29.8.2013.
EXT.P-2: TRUE COPY OF THE REPORT DATED 5.7.2013.
EXT.P-3: TRUE COPY OF THE REGISTRATION CERTIFICATE FROM
PAGES 2 AND 3 IN RESPECT OF KL-17/D.4347.
EXT.P-4: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
DATED 16.7.2013.
EXT.P-5: TRUE COPY OF THE SCHEMES AN ALUVA-CHATHANAD AND
ALUVA-CHERAI DATED 28.8.1961.
EXT.P-6: TRUE COPY OF THE REVISION PETITION AS MVARP NO.268/13
(WITHOUT EXHIBITS) FILED BY THE PETITIONER DATED 7.9.2013.
EXT.P-7: TRUE COPY OF THE ORDER IN MVARP NO.268/13 DATED 30.11.2013.
EXT.P-8: TRUE COPY OF THE JUDGMENT IN O.P.NO.3790 OF 1974 AND
CONNECTED CASES DATED 13.12.1974.
EXT.P-9: TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.23824/2003
DATED 18.03.2004.
EXT.P-10: TRUE COPY OF THE JUDGMENT IN W.A.NO.1058/2004
DATED 22.03.2006.
RESPONDENT(S)' EXHIBITS:-
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EXT.R3(a) TRUE COPY OF THE DRAFT NOTIFICATION DATED 30.08.1960.
EXT.R3(b) TRUE COPY OF THE KERALA MOTOR VEHICLES (STATE
TRANSPORT UNDERTAKING) RULES, 1960 PUBLISHED ON 8.3.1960.
EXT.R3(c) TRUE COPY OF THE TRIP SHEET ISSUED BY THE DISTRICT
TRANSPORT OFFICER, NORTH PARAVUR DATED 24.10.2013.
vku/- ( true copy )
"C.R."
K. Vinod Chandran, J.
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W.P.(C).No.948 of 2014-P
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Dated this the 26th day of March, 2014
JUDGMENT
Objectionable overlapping over a notified route; is the issue raised in the writ petition. The petitioner herein applied for a regular permit to operate on the route Chathanad-North Parur-Munambam. The Regional Transport Authority (for brevity "RTA") called for reports from the Field Officer, twice, which are produced as Exhibits P1 and P2. In both the reports though overlapping was noticed in the notified routes Aluva-Chathanad and Aluva-Cherai; such overlapping was found to be not objectionable, since the same came within an exception clause. Despite such reports, the RTA declined grant of permit on the reasoning that the proposed route touches two intermediate points of the notified routes. The essential dispute to be resolved in the above case is as to whether the "intermediate points" referred to in Schedule-I can be equated to the "intermediate places" as indicated in Annexure-A to the approved scheme, produced as Exhibit P5.
WP(C).No.948 of 2014-P - 2 -
2. The petitioner had filed a revision before the State Transport Appellate Tribunal (for brevity "the Tribunal"), who has disposed of the same, directing reconsideration by the RTA after notice to the Kerala State Road Transport Corporation (for brevity "KSRTC"). The petitioner is aggrieved insofar as the Tribunal has noticed that the petitioner, who was the revision petitioner before the Tribunal, had expressed an intention to make a modified proposal, on the strength of which the matter was remanded. The petitioner seeks consideration of his contentions, since he would be tied down by the so termed undertaking; which he refutes to have made.
3. The petitioner would contend that, in fact there is no objectionable overlapping, as has been specifically reported by the Field Officer in Exhibits P1 and P2. The petitioner would also contend that the route, admittedly does not pass through the two intermediate places specified in Annexure-A of Exhibit P5 scheme. The intermediate places as specified in Annexure-A of the route Aluva-Cherai are U.C.College, Thattampady, Mannam and Parur and in respect of the route Aluva-Chathanad are U.C.College, Thattampady, Mannam, Parur, Kadamamgalam Temple Junction. WP(C).No.948 of 2014-P - 3 - The proposed route of the petitioner, but for touching Parur, which is an intermediate place in both the notified routes, does not touch on any of the other places specified therein. Hence, looking at Schedule-I, which notified the "routes as indicated in Annexure-A and all routes connecting two intermediate points of such routes", it is the contention that the "intermediate points" referred to in Schedule-I are the "intermediate places" in Annexure-A. The learned counsel for the petitioner relies on K.S.R.T.C. v. R.T.A., Kollam [2005 (2) KLT 217], judgments in W.A.No.1627 of 2013 dated 04.03.2014, O.P.No.3790 of 1974 and connected cases dated 13.12.1974, W.P.(C).No.23824 of 2003 dated 18.03.2004 and W.A.No.1058 & 1059 of 2004 dated 22.03.2006.
4. The learned Standing Counsel for the KSRTC draws a distinction between the "intermediate points" referred to in Schedule-I and the "intermediate places" specified in Annexure-A. It is the contention of the KSRTC that, if the route proposed passes through two points in a notified route, then necessarily the same would be an objectionable overlapping. Especially since, Exhibit P5 scheme is in Form-I, which format is of a scheme of WP(C).No.948 of 2014-P - 4 - total exclusion. The learned counsel specifically refers to the Kerala Motor Vehicles (State Transport Undertakings) Rules, 1960 (for brevity "STU Rules"), wherein Rule 3 specifies Form-I, Form-II and Form-III, being the format for publication of a scheme in complete exclusion; in partial exclusion; and in supplementation of existing road transport service, respectively. The learned counsel also draws attention to the Forms appended to the Rules and argues that while Form-II and Form-III have columns indicating the number of stage carriages to be operated by private operators, such a column is glaringly absent in Form-I, which definitely points to the fact that there is total exclusion and no exception could be carved out from such scheme published in Form-I. The learned Standing Counsel would also refer to a decision of a Division Bench of this Court reported in K.S.R.T.C. v. The Regional Transport Authority [1991 (3) ILR Kerala 40].
5. Looking at the decisions placed before this Court in its chronological order, the common judgment in O.P.No.3790 of 1974 and other Original Petitions dated 13.12.1974 produced as Exhibit P8, in my opinion, may not really be relevant to resolve the present dispute. That was essentially concerned with two WP(C).No.948 of 2014-P - 5 - schemes, one notifying the route Ernakulam-Thrissur and the other Ernakulam-Guruvayoor. Ernakulam-Thrissur scheme was a complete exclusion, while the subsequent scheme Ernakulam-Guruvayoor was a "scheme of supplementation"
envisaged by Form III under Rule 3 of the STU Rules. The KSRTC challenged the permits issued to private stage carriage operators in the route Ernakulam-Thrissur passing through more than two intermediate points mentioned in the exclusion scheme. The contention that the subsequent supplementation scheme, was in supersession of the earlier scheme, was negatived by this Court. It was held that though the subsequent scheme dealt with the route Ernakulam-Guruvayoor and a portion of the route, being Thrissur-Guruvayoor, was dealt with in a manner different from Ernakulam-Thrissur in the earlier complete exclusion scheme, that alone would not indicate any modification having been effected by the subsequent scheme.
6. The decision in 1991 (3) ILR Kerala 40 (supra) drew a distinction between the "intermediate points" and "intermediate places", is the contention of the KSRTC. The grant of a regular permit in the route Payyippad-Oachira District Border was assailed WP(C).No.948 of 2014-P - 6 - by the KSRTC in the aforesaid case. Admittedly the portion Kayamkulam-Oachira coming within the said route was a part of the nationalized route Alleppey-Quilon and were two intermediate places in the route. The private stage carriage operator, having obtained a mandamus from this Court, was before the RTA, who granted the permit in the route Payyippad-Oachira District Border, the latter of which was held to be only a demarcating line and not a point. The contention of the private stage carriage operator was that since Kayamkulam and Oachira were the two intermediate places specified in the nationalized route Quilon-Alleppey, the proposed route of the private stage carriage operator not touching the two intermediate places, but terminating at Oachira District Border would not be an objectionable overlapping. The Division Bench found that the devise employed by the RTA to curtail the route at an imaginary point was a perverse attempt, especially since there was no place called "Oachira District Border".
7. In W.P.(C).No.23824 of 2003, the refusal to grant a permit, overlapping the Aluva-Angamali nationalized route from Athani to Aluva came up for consideration. The KSRTC maintained that even a small overlapping of the route Aluva-Angamali, WP(C).No.948 of 2014-P - 7 - between Athani and Aluva, two intermediate places, cannot be conceded to the private operators. The KSRTC challenged the Tribunal's order permitting the grant, since two intermediate points were traversed, being Desom and Kariyad, though not two intermediate places. Schedule-I of the subject scheme was, as indicated in Exhibit P5, "all routes connecting or passing through any two or more intermediate points of such route". The KSRTC relied on 1991 (3) ILR Kerala 40 (supra), which was quoted from by the learned Single Judge, to hold that the dictum laid down has to be understood on the facts of that case; the curtailment at Oachira District Border, being a perverse devise employed by the RTA, since such a place did not at all exist. The contention of the KSRTC was negated, holding that if the scheme which was the subject matter of the above writ petition was a total exclusion scheme, then the words employed in Schedule-I extracted herein above would have been rendered redundant.
8. 2005 (2) KLT 217 (supra) was also a case in which 1991 (3) ILR Kerala 40 (supra) was cited and considered. The scheme which was the subject matter therein, was Trivandrum-Quilon-Kottarakkara-Trivandrum (Circular). There was WP(C).No.948 of 2014-P - 8 - objectionable overlapping pointed out in the impugned renewal of regular permit in the route Kilimanoor Market Junction-Kollam Andamukkom Private Bus Stand. The intermediate points in the circular route as indicated in the scheme were Kazhakootam, Attingal, Parippally, Chathannoor, Quilon, Kilikolloor, Kundara, Ezhukone, Kottarakkara, Ayoor, Nilamel, Kilimanoor, Venjarammoodu, Vattappara, Pattom. The impugned order, according to the party respondent, did not touch any of the intermediate places, being Parippilly, Chathannoor or Quilon, which alone was relevant and terminated at Kilimanoor Market Junction. It was the contention that even if the terminus was found to be an intermediate place, there can be no objection raised. The route terminates at that point and it would not violate the principle of "passing through two or more intermediate points". Again the contention was that it was not a total exclusion scheme and the decision also noticed the different forms, being Form No.I, II and III, and the purposes for which they are used. However, it is not clear as to, in what form the scheme relevant in the said case, was issued in. This decision also held that unless the routes which does not pass through two or more intermediate points or connect WP(C).No.948 of 2014-P - 9 - them, are granted to private stage carriage operators, the latter portion of Schedule-I would become redundant and superfluous.
9. 1991 (3) ILR Kerala 40 (supra) revolved around a fictitious terminus, being Oachira District Border. In para 4, it was only held that the emphasis, on the facts disclosed is on 'intermediate points' and not 'intermediate places'. It was held that the notified route covers all intermediate points between Quilon and Alleppay and between the intermediate places. Hence, it was found that merely avoiding Oachira, an intermediate place and terminating the route at a point, near to Oachira, but still on the notified route, offends the scheme. This interpretation was on the facts of the said case wherein the RTA employed a perverse devise to get over objectionable overlapping. There would be many points within a notified route which are not included as intermediary places in Annexure-A, but one has to understand how the words are used in the scheme. Whether it is used in distinction of each other or as interchangeable. 1991 (3) ILR Kerala 40 (supra) is only an authority for the proposition that intermediate points cannot be any imaginary place or point, either as a devise to escape from objectionable overlapping or to find such overlapping. WP(C).No.948 of 2014-P - 10 -
10. If "intermediate points" are not equated with "intermediate places", then the question would arise as to what are the intermediate points which have to be taken into account to see whether the overlapping is objectionable or not. The words employed in Schedule-I cannot definitely be in futility and no interpretation can be placed to make it redundant. When intermediate places are specifically mentioned in the Annexure, which falls within the notified routes, then the objectionable overlapping indicated in Schedule-I has to be necessarily considered to be those passing or connecting two or more intermediate places.
11. It is also to be noticed that 2005 (2) KLT 217 (supra) notices and follows the decision in O.P.No.9465 of 1983. The scheme dealt with therein was Alleppey-Ernakulam and the route applied for was Aroonmukkom-Shertallai. The service was to start from or end at Shertallai and pass through Thuravoor and Eramalloor. Shertallai, Thuravoor and Eramalloor were intermediate places in the nationalized route. The contention raised on behalf of the private operators was that objectionable overlapping can be found, only if the connection to or passing WP(C).No.948 of 2014-P - 11 - through; the intermediate points are through the nationalized route itself. Though Shertallai, Thuravoor and Eramalloor were traversed by the private operator, it did so by first traversing through the nationalized route and then deviating and again joining the nationalized route. It was held that, the reservation in the scheme was not merely to routes connecting intermediate points but also of "routes passing through any two or more intermediate points". Hence, the overlapping in the said case was found to be objectionable.
12. The scheme, hence, was amended to get over the judgment, with the following words:-
"Routes as indicated in Annexure A and all routes connecting or passing directly along the line of the notified routes through any two or more intermediate points of such route".
Looking at the amendment brought in, it is clear that even the Government understood the "intermediate points" in the Schedule and "intermediate places" in Annexure as one and the same. It was to remove the objectionable overlapping; in connecting Shertallai, Thuravoor and Eramalloor, the intermediate places, when such WP(C).No.948 of 2014-P - 12 - route not directly in the line of the notified route; that amendments were brought in to the Schedule to provide the exclusion to only those routes connecting or passing directly, along the line of the notified route of any two or more intermediate points. The explanatory note to the said modified scheme read as follows:
"(This is not part of the notification but to indicate its general purport).
The High Court in O.P.No.9465/83 have set aside the permits issued by the Regional Transport Authority, Alleppey to private bus operators in the route connecting or passing through Shertallai, Thuravoor, Kuthiathodu, Eramalloor in Alleppey-Ernakulam route which is a route notified under S.68-D(2) of the M.V.Act.
Cancellation of the above permits in the route mentioned caused serious difficulties to the travelling public in the area. Regarding the difficulties faced by the travelling public, several representations were received by Government. Government have examined the matter and they have decided to modify the scheme of Road Transport Services approved by it in Notification No.18824/T60/PW dated 11.11.1960. Hence this notification".
The scheme has the force of law and the amendment brought in, to overcome the defect pointed out by the High Court, has to be WP(C).No.948 of 2014-P - 13 - examined in the background of the well-known principle of contemporanea expositio est optima et fortissima in lege (in law what is most powerful is a contemporaneous exposition). The executive Government too hence understood the intermediate 'points' and 'places' to be one and the same.
13. In the above circumstance, this Court is of the opinion that the present route in which the petitioner seeks a permit does not connect two or more intermediate places/points as indicated in Schedule-I and Annexure-A. The route only touches Parur, which is one of the intermediate places in the notified routes of Aluva-Chathanad and Aluva-Cherai.
14. One other contention raised by the KSRTC in defence was that the form in which Exhibit P5 has been notified is one of exclusion, being Form-I. It is trite that the Form does not control the rule and as long as the rule provides for exclusion, the words employed in the scheme has to decide the true purport of the scheme, whether it is in, complete exclusion, partial exclusion or supplementation of existing road transport service. The fact that the Form was one of total exclusion does not at all deviate from the fact that Schedule-I provided for partial exclusion. WP(C).No.948 of 2014-P - 14 -
The writ petition, hence, is allowed and it is directed that the permit as applied for by the petitioner shall be considered afresh and in accordance with law as also the observations made herein above. The order of the Tribunal, Exhibit P7, is set aside and so is Exhibit P4 rejection of permit. The parties are directed to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
( true copy )