Kerala High Court
Chokli Moideenkutty vs The State Transport Appellate ... on 23 November, 1988
Equivalent citations: AIR1989KER271, AIR 1989 KERALA 271, (1989) 1 KER LT 9, ILR (1989) 1 KER 693, (1989) ILR(KER) 1 KER 693, (1988) 27 REPORTS 471, (1988) 2 KER LJ 872
JUDGMENT Malimath, C.J.
1. This appeal is against the judgment of the learned single Judge in O.P. No. 6414 of 1988. The second respondent, the Regional Transport Authority, Malappuram passed an order as per Ext. P1 on 23-5-1985 for the purpose of introduction of a stage carriage service for the route Kuttur North-Kozhikode v. A. R. Nagar Kakkadumpuram Kunnumpuram-Kondotty and Ramanattukara, it being satisfied that there is need for grant of a stage carriage permit for one trip. The said route is an inter-district route falling within the jurisdiction of the Regional Transport Authority, Malappuram and the Regional Transport Authority, Kozhikode. In pursuance of that decision applications were invited under Section 57(2) of the Motor Vehicles Act by notification dt. 5-12-1985, published in the gazette dt. the 21st Jan. 1986. The said notification is extracted as follows :
"In pursuance of the decision of the R.T. A., Malappuram dt. 23-2-1985 the Secretary, R.T.A., Malapuram will receive applications till 30 days from the date of publication of this notification in the Kerala Gazette for the issue of pucca stage carriage permit for a vehicle to ply on the following route.
The application should be made in form P.S.P.A. and accompanied by chalan receipts for Rs. 57/- remitted under the head of account "041 (a) taxes on vehicles" and revenue deposit for Rs. 200/- under the head of account "Revenue Deposit". Belated and defective applications will not be entertained. In the case of Companies/Partnership firms a copy of memoranda of Association/ Partnership deed also be produced along with application.
No. G2/2280/85/M 5th December. 1985.
Route :-- Kuttor North-Kozhikode via A. R. Nagar-Kakkadumpuram-Kunnum-puram-Kondotty and Ramanattukara.
Malappuram.
Sd/-
Secretary, Regional Transport Authority".
The appellant, the 4th respondent and several others applied for the grant of stage carriage permit in response to the said notification. The R.T.A. by its order Ext. P4 dt. 17-5-1986 granted the permit in favour of the appellant, after coming to the conclusion that the route in question is a short route and that therefore the appellant who is a new entrant is entitled to preference under Rule 177A(3) of the Kerala Motor Vehicles Rules. The 4th respondent is admittedly not a new entrant and is an operator in respect of a medium route. The 4th respondent challenged the decision of the R.T.A. before the State Transport Appellate Tribunal. The Tribunal allowed the appeal and remitted the case to the R.T. A. as per Ext. P6 dt. 1-10-1986. The R.T.A. after fresh consideration of the matter passed an order on 22-11-1986 as per Ext. P7 granting the permit in favour of the appellant after coming to the conclusion that the route in question is a short route and not a medium route as contended by the 4th respondent. The decision of the R.T.A.. Malappuram was challenged by the 4th respondent in appeal before the S.T.A.T. The Tribunal by its order Ext. P16 dt, 6-6-1988 allowed the appeal, set aside the order of the R.T.A. and remitted the case for fresh consideration in the light of the directions contained in para 9, wherein the said authority is called upon to decide as to whether one way traffic at Calicut and trafic through byepass at Kondotty were made applicable on or before 17-6-1986. It is the said decision of the Tribunal that was challenged by the appellant in O.P. No. 6414/88. The learned single Judge disposed of the writ petition observing that if as a matter of fact there is any error as contended by the appellant in para 7 of the Tribunal, that is a matter which should be brought to the notice of the Tribunal for appropriate rectification and that is not a matter which calls for interference in the writ petition. It is the said judgment that is challenged by the appellant in this appeal,
2. There is no dispute between the appellant on the one hand and the contesting 4th respondent on the other that they have equal merit for claiming grant of permit for the route in question. The appellant would be entitled to claim preference over the 4th respondent only if he is able to establish that the route in question is a short route, as a new entrant is entitled to be preferred other things being equal in view of Rule 177A(3) of the rules. Hence the entire controversy centres round the question as to what is the precise distance of the route and as to what is the date with reference to which the distance of the route should be measured. Rule 177A classifies routes covering a distance of not more than 40 Kms. as short routes, routes covering a distance of more than 40 KMs. but not more than 80 KMs. as medium routes and routes covering a distance of more than 80 KMs. as long routes. Whereas the appellant contends that the distance of the route in question is less than 40 KMs. and is therefore a short route, the 4th respondent contends that the route in question is more than 40 KMs. and therefore a medium route. The route in question passes through the city of Kozhikode. Certain traffic regulations were issued introducing one way traffic system. As a result of these regulations the buses passing through. Calicut from Kuttor North side have to travel a longer distance than they were doing before. According to the appellant, the length of the route before the introduction of these regulations was 39.4 KMs. If the route to be followed in accordance with the traffic regulations is measured, it may exceed the limit of 40 KMs. The traffic regulations may therefore have the effect of converting a short route into a medium route. The 4th respondent, however, contends that the route measured more than 40 KMs. even before the introduction of the traffic regulations. As the question as to whether the appellant is entitled to claim preference under Rule 177A(3) of the rules depends entirely on the distance of the route, the date with reference to which the route should be measured assumes crucial importance.
3. Learned counsel for the 4th respondent submitted that the relevant date to be taken into consideration is the date on which all the applications for grant of permit for the route in question were first considered by the R.T.A. on the 17th May, 1986. Reliance was placed in support of this contention on the Full Bench decision of this Court reported in 1962 Ker LT 446 : (AIR 1962 Ker 341) between Cannanore District Motor Transport Employees Co-operative Society Limited v. Malabar Public Conveyance which has been re-affirmed in the subsequent Full Bench decision reported in 1980 Ker LT 249 : (AIR 1980 Ker 115) between Narayanan v. R.T.A. Trichur, after taking into consideration the judgment of the Supreme Court reported in AIR 1971 S-C 1804 between the Maharashtra State Road Transport Corporation v. Malgrulpir Joint Service Co. (P) Ltd. These decisions have been consistently followed by this Court in subsequent decisions reported in 1985 Ker LT 1026 : (AIR 1986 Ker 191) between Manikanda Kumar v. Ramakrishnan and in W. A. No. 445 of 1987. The law that is well settled by these decisions is that the date on which the R.T.A. takes up the subject for final consideration is the date for assessment of the relative merits of the applicants for grant of permit and not any anterior or subsequent date, But this is not a case in which there is any dispute in regard to the qualifications. Neither the appellant nor the 4th respondent has put forward any Case that he has subsequently acquired any qualification which is required to be taken into consideration. As both the parties proceed on the basis that they were equally qualified as on the date of final consideration of the application by the R.T.A. namely 17-5-1986, the question of applying the principle laid down in the aforesaid decision does not arise. We are concerned in this case not with the qualifications of the appellant or the 4th respondent but with the question as to what is the distance of the route which should be taken into consideration for the purpose of Rule 377A(3) of the rules.
4. As already staled Rule 177A(3) requires preference being given to a new entrant if the route is a short route. The expression 'route' has been defined in Section 2(28A) of the Act to mean 'a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another' That is not a notional line 'as the crow flies', but the actual highway as a motor vehicle travels from one terminus to another as stated by the Supreme Court in AIR 1977 SC 1170 between Venkamma v. Govt. of A.P. The line of the route must therefore be clear, certain and specific, Section 46 which provides for making applications for grant of a stage carriage permit requires the applicant to state the route to which the application related. Condition of the road included in the proposed route is one of the factors to be taken into consideration by the R.T.A. in dealing with the applications for grant of stage carriage permits. It is only after taking into consideration the entire length of the route, the line it takes and the condition of the entire route that the R.T.A. has to decide to open a particular route. The applications for stage carriage permits are required to be considered following the procedure prescribed by Section 57 of the Act. Sub-section (3) of the said section requires publication of the application or the substance thereof. This is done with a view to enable the persons likely to be affected or interested to make representations to the R.T.A. The representations are required to be made with reference to the route for which the applications are made. The route notified, in respect of which applications are called for has therefore to be clear, certain and specified and riot nebulous. This is obviously so, because persons likely to be affected are given a right of making representations and they ought to know with reference to which particular route that they can present their representations. It is therefore obvious that there must be precision in regard to the route in respect of which applications are called for by the R.T.A. As the route in respect of which notification is issued and.applieations arc called for is the route in respect of which anterior decision was taken by the R.T.A., it is the date of decision to open the route that must be rcgared as the crucial date in regard to the line of the route and its measurement. Any subsequent alteration of the line of the route consequent upon the issuance of traffic regulations could not have been in the mind of R.T.A. when it decided to open the route. As the route must be clear, certain and specific, it is obvious that it is only that route in respect of which decision was taken by the R.T.A. that should be taken into consideration. We, therefore, hold that the relevant date for measuring the line of the route is the date on which the R.T.A. takes the decision to notify the particular route and invite applications for grant of a permit in respect of that route.
5. It may become impossible to operate on the notified route on account of subsequent events like the closure of the road or the falling of the bridge or as a consequence of imposition of certain traffic regulations. If the alternate lins of the route that may be required to be followed substantially affect the integrity of the route, it would amount to varying the route. If the notified route is varied, the proper course to be adopted would be to drop the proceedings. In such an event, fresh applications may be called for the grant of permit for the altered route.
6. When a route passes through a village, town or city, there may exist several alternative entry points and exit points. When the R.T.A. takes the decision to open a route, one of the several alternatives available will have been chosen. If on account of subsequent traffic regulations, motor vehicles are not permitted to go by the particular road contemplated by the notified route and traffic is permitted by other alternative road, the question for consideration is as to whether it amounts to variation of the notified route. Such alterations within the limits of the city resulting from traffic regulations are minimal and cannot he regarded as having the effect of varying the notified route itself. In such a situation, it would not be necessary to abandon the proceedings initiated for grant of stage carriage permit for the notified route. But so far as the measuring of the distance for the purpose of Rule 177A(3) is concerned, it is the line of the route in respect of which the R.T.A. took the decision to open the route that should be measured and not the altered line of the route brought about by traffic regulations. It is a matter of common knowledge that notifications are not promptly published. There is every possibility of the situation being altered consequent upon the traffic regulations being modified between the date of the decision and the date of publication. As the route notified has to be clear, certain and specific, subsequent events should not enter into the picture. We therefore hold that the distance should be measured for the purpose of Rule 177A(3) as on the date on which the R.T.A. took the decision to open the route in respect of which the notification is issued inviting applications, though the notification takes effect only from the date of publication. In this case the decision was taken by the R.T.A. on 23rd Feb., 1985. That is the date that should be taken into account for measuring the distance though the notification inviting applications was published in the gazette on the 23rd January, 1986. As there is dispute in regard to the actual distance of the notified route as on 23-1-1985, the matter has to be remitted to the R.T.A. to examine this limited aspect and to arrive at a fresh decision. It has to take a decision taking into account 23-2-1985 as the relevant date for measuring the distance. If as a consequence of such consideration, the R.T.A. comes to the conclusion that the route notified was a short route, it shall proceed to consider the preference to which the appellant as a new entrant would be entitled to under Rule 177A(3) of the rules. If, however, it comes to the conclusion that the route is a medium route, it shall dispose of the applications in accordance with law.
For the reasons, stated above this writ appeal is allowed and the judgment of the learned single Judge and the orders of the Regional Transport Authority and State Transport Appellate Tribunal are set aside and the case is remitted back to the R.T.A. for fresh disposal in the light of the observations made above. Till fresh disposal by the R.T.A. is in pursuance of the directions contained in this judgment, the appellant shall be permitted to continue to operate on a temporary basis. As the matter has been pending for a long time, we consider it appropriate to direct the R.T.A. to dispose of the entire matter as expeditiously as possible and preferably within a period of three months from the date of receipt of this judgment.
Let a copy of this judgment be sent to the Regional Transport Authority. Malappuram.