Karnataka High Court
N S Abdul Gafoor vs The Karnataka State Transport ... on 15 March, 2017
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
W.P.Nos.12560 - 12561/2015 (MV)
BETWEEN :
1. N.S.ABDUL GAFOOR
S/O N.SAHUNHI HAJI,
AGE 46 YEARS, NEKKRE HOUSE,
MANGALANTHI, MANJANADY,
MANGALURU, D.K.DISTRICT-575 022.
2. ABDUL AJEEZ
S/O HAJI P.M.MOHAMMED,
AGE 40 YEARS,
PARTHIPADY HOUSE,
MANJANADY VILLAGE,
MANGALURU, D.K.DISTRICT-575022. ...PETITIONERS
(BY SRI M.E.NAGESH, ADV.)
AND :
1. THE KARNATAKA STATE
TRANSPORT AUTHORITY
BMTC BUILDING, K.H.ROAD,
BENGALURU-560 027
BY ITS SECRETARY.
2. U.MAHABALA SHETTY
S/O SANKAPPA SHETTY,
AGE 58 YEARS, PRAKASH NAGAR,
KOTEKAR, SOMESHWARA VILLAGE,
MANGALURU, D.K.DISTRICT-575 022.
3. THE SECRETARY
KARNATAKA STATE TRANSPORT
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AUTHORITY, BMTC BUILDING,
K.H.ROAD, BENGALURU-560 027. ...RESPONDENTS
(BY SRI VIJAYAKUMAR Y.H., AGA FOR R-1 & R-3;
SRI A.SRIKANTH, ADV. FOR C/R-2.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR RECORDS AND QUASH THE ORDER PASSEDBY THE
STATE TRANSPORT APPELLATE TRIBUNAL PASSED IN APPEAL
NO.940/2014 AND 941/2014 DATED 06.03.2015 VIDE ANN-B &
C AND ALSO THE ORDER OF THE STATE TRANSPORT
AUTHORITY, BENGALURU PASSED IN THE MEETING HELD ON
12.6.2014 DECISION PRONOUNCED ON 31.7.2014 VIDE ANN-A.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are challenging the order passed by the Karnataka State Transport Appellate Tribunal (the 'Tribunal' for short) in Appeal No.940/2014 and 941/2014 dated 06.03.2015 (Annexures-B and C) and proceedings of the 1st respondent, Authority (Annexure-A) to the writ petitions.
2. The 1st petitioner is the holder of stage carriage permit No.142/90-91 valid upto 26.9.2015 for the route B.C. road to Mangaluru and back via. Pane Mangaluru, Nikar, Cheloor, Kurnad, Mudipu, -3- Manjanady, Deralakatte, Thokkottu three round trips per day. The 2nd petitioner is also the holder of stage carriage permit No.265/DK/98-99 valid upto 22.11.2018 for the route Konaje to State Bank via, Deralakatte, Thokkottu, Balamatta seven round trips per day. The 2nd respondent herein is the holder of Stage Carriage permit No.137/93-94 valid upto 14.12.2013 for the route from Nithilapadavu to Mangaluru Bus Stand and back via, Kunjathoor, Thalapady, Kotekar, Someshwara, Ullala, Mastikatte, Thokkottu, Pumpwell, Jyothi, A.B.Shetty Circle eight round trips per day. The said respondent filed an application for grant of variation of permit conditions. The Authority has placed the subject at subject No.226/2012-2013, wherein, the Authority granted the variations as prayed for by the 2nd respondent and directed the Secretary, STA to assign timings as per the variation granted. Aggrieved by the same, the petitioners preferred the appeals under the provisions of Section 89 -4- of the Motor Vehicles Act ('the Act' for short) 1988 before the Tribunal. The Tribunal formulated the issue on maintainability of the appeals and rejected the appeals as not maintainable. Hence, these petitions.
3. The learned counsel Sri. M.E.Nagesh, appearing for the petitioners placing reliance on the judgment of this Court in the case of 'SREE GAJANANA MOTOR TRANSPORT COMPANY LIMITED, MANDALI, SHIMOGA VS. THE KARNATAKA STATE TRANSPORT APPELLATE TRIBUNAL, BANGALORE AND OTHERS' reported in 2004 (2) KAR.LJ 1987, submits that the petitioners are 'aggrieved persons'. 'Any person' occurring under Section 89 of the Act, has to be interpreted with reference to "aggrieved person". The Tribunal failed to appreciate the Division Bench judgment of this Court in SREE GAJANANA MOTOR TRANSPORT COMPANY LIMITED, (supra) and placed reliance on the judgment of this Court in 'SRI LANCY -5- PAIS VS. THE KARNATAKA STATE TRANSPORT APPELLATE TRIBUNAL AND OTHERS' IN W.P.No.38901/1995 (DD 9th November 1995).
4. The learned counsel further submits that, the Tribunal failed to notice that the order of Regional Transport Authority or State Transport Authority can be called in question by the aggrieved operators. A rival operator aggrieved by the order of variations of permit granted, prima facie, is an 'aggrieved person'. The appeal remedy available under Section 89 of the Act, to the petitioner can not be denied on mere technicalities. In support of his contentions, the learned counsel placed reliance on yet another Division Bench Judgment of this Court in the case of 'A. DIWAKARA NAIK VS. KARNATAKA STATE TRANSPORT AUTHORITY,' reported in ILR 2002 KARNATAKA 1357.
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5. The learned counsel Sri.A.Srikanth, appearing for the respondent No.2 supporting the impugned orders submits that, the phrase 'aggrieved person' contemplated under Section 89 of the Act, has to be read in a restrictive sense. It is only the parties to the proceedings are to be construed as the 'aggrieved person' relating to a particular order. The Tribunal considered the maintainability of the appeals in a right perspective placing reliance on the Judgment of this Court in 'SRI LANCY PAIS' case supra, the petitioners have no right to challenge variation/ curtailment/ extension of permit granted in terms of the Act to a particular service operator. Hence, the writ petitions are liable to be dismissed.
6. Learned Government Advocate appearing for respondent Nos.1 and 3 supports the contention of the learned counsel appearing for respondent No.2
7. Heard the learned counsel for the parties and perused the material on record.
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8. The only question that subsists for consideration in these writ petitions is, "Whether the appeals filed by the petitioners are maintainable under Section 89 of the Act?"
9. It is apt to refer to Section 89 of the Act, which runs thus:
"89. Appeals. - (1) Any person-
a. aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or b. aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or c. aggrieved by the refusal to transfer the permit under Section 82, or d. aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such counter- signature, or -8- e. aggrieved by the refusal of renewal of a permit, or f. aggrieved by the refusal to grant permission under Section 83, or g. aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-Section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.
10. Clause (b) of Section 89 (1), makes it clear that, 'any person aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof', can challenge the said order by filing the appeal.
11. In the Division Bench judgment of this Court in the case of A. DIWAKAR NAIK Supra, it is categorically held as under:
"22. It is therefore clear that before granting any extension, variation or -9- curtailment of the route, the Transport Authority should examine the matter and record a finding that (a) the variation or extension of the route sought does not exceed 24 kms with reference to the original route; (b) such variation/extension will serve the convenience of public; and (c) it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof. If any of the three conditions is not satisfied, the request for variation of the conditions will have to be rejected. Further, if the resolution/order of the Transport Authority does not expressly or impliedly indicate the application of mind and decision on these three aspects, the resolution/order of the Transport Authority will not be in accordance with Section 80(3) and thus, will be open to challenge. We therefore agree with the learned Single Judge that recording of findings on these three aspects by the Transport Authority is necessary to confer validity on the order granting variation of the conditions of the permit."
12. In the Division Bench judgment of this Court in SREE GAJANANA MOTOR TRANSPORT COMPANY LIMITED Supra, the very same issue inasmuch as the locus-standi of a person for filing an appeal under Section 89(1) of the Act fell for consideration and this Court has held thus:
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"The words "any person" may not include each and every person regardless of the context or the circumstance in which the word "any" as an adjective is used. Generally speaking, in interpreting the words "any person" occurring under Section 89 of the Act in the context of availing an appeal remedy, perhaps, it cannot be said that a total stranger or a person who is not at all aggrieved can prefer an appeal under Section 89 of the Act. But, the words "any person" in the context should undoubtedly include "every aggrieved person". Therefore, the appeal remedy provided in Section 89 of the Act is available to any aggrieved person. In this case, the appellant is aggrieved by the order of the State Transport Appellate Tribunal impugned in the writ petition. Therefore, it cannot be said that the appellant does not fall within the expression "any person aggrieved" occurring in Section 89 of the Act. Therefore, the appellant is entitled to prefer an appeal to the State Transport Appellate Tribunal under Section 89(b) of the Act "
13. Further, it is held as under:
"The contention that the phrase "within thirty days from the date of receipt of the order" occurring in sub-rule (1) of Rule 88 would unmistakably suggest that limitation is applicable to a person receiving the copy of the order and not to others and if it is so understood, it goes without saying that only such person who receives the copy of the
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order sent under Section 80 of the Act could prefer an appeal under Section 89 of the Act and not a third party like the writ petitioner. This contention is not well-founded for more than one reason. If the above contention is accepted, it would result in an awkward situation thereby meaning that if two or more persons are aggrieved by the same order with regard to the same cause of action, one aggrieved party has to pursue legal remedy by way of an appeal under Section 89 and the other by way of revision under Section 90 and such an interpretation cannot be placed because it will create an invidious discrimination violating Article 14 postulates because, an appeal is undoubtedly more comprehensive and better legal remedy compared to a revision or review remedies. No dichotomy in the matter of providing legal remedies arising out of same cause of action and same order can be supported by any cannons of law or supporting authorities."
14. In the case of Sri. Lancy Pais, this Court while considering the case of a commuter and a member of the General Public using the services on the route in question therein held that: "the petitioner being the commuter is not an 'aggrieved person', could neither maintain the revision petition nor the writ petition. It is always open to the petitioner therein and affected
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commuters to make a representation to the Regional Transport Authority for grant of new permits in the affected route which will be taken note of by the Transport Authority for future reference and use." The said judgment being rendered in the context of the matter wherein the commuter approached this Court challenging the variation or curtailment or extension granted to an operator, it was held that, the commuter is not an aggrieved person and the said judgment is not applicable to the facts of the present case. As held in the judgment of SREE GAJANANA MOTOR TRANSPORT COMPANY LIMITED Supra, any person aggrieved by any variation or curtailment or extension of the conditions of the permit can be construed as an "aggrieved person".
15. The next question would be who are all aggrieved by any such variation or curtailment or extension. It is clear that a total stranger or a person who is not at all concerned with the variation of
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services, cannot prefer the appeal under Section 89 of the Act. The Rival operators/Sector operators who are aggrieved by any such variation/curtailment/extension or assignment of timings to a service operator cannot be said that they do not fall within the expression "any person aggrieved" as provided under Section 89 of the Act. An appeal is a statutory remedy available to the 'aggrieved person' as a matter of right. Such right cannot be curtailed with a narrower interpretation of the word "aggrieved person" relating only to the parties concerned in the proceedings. In view of the Division Bench judgment of this Court in DIWAKARA NAIK, the parameters set out for granting any extension/ variation/curtailment of the route, if expressly or impliedly indicates no application of mind and contrary to the three basis factors, i.e. (i) variation or extension of the route sought does not exceed 24 KMS. (ii) It is in the interest and convenience of the travelling public and
(iii) the nature of the original route should not be
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disturbed, interference by the Court is warranted. Keeping these factors in mind, the authority has to consider the application filed by the service operator for variation/curtailment/extension. If there is any departure from the parameters as expressed by this Court, it obviously affects the other rival operators/Sector operators who are operating their services in the routes concerned. In this background, it can be held that the petitioners being aggrieved by the order of the Authority in granting variation, have the right to file the appeals. It is also pointed out by the learned counsel appearing for the petitioners that in appeal No. 548/2013 and connected matters, (D.D. 26th November 2015), the Tribunal, distinguishing the judgment of this Court in Sri. Lancy Pais case has taken a different view. Be it as may be, for the reasons aforesaid, the order impugned herein is not fit to be sustained. Accordingly, the impugned orders are quashed.
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16. The petitions are allowed and the matters are remanded to the Tribunal to consider the appeals on merits and to pass appropriate orders, as expeditiously as possible, after hearing both the parties.
Sd/-
JUDGE tsn*