Kerala High Court
State Of Kerala vs Palaksha on 12 April, 2002
Equivalent citations: I(2003)ACC105
JUDGMENT R. Rajendra Babu, J.
1. Sri. M.S. Palaksha was holding an interstate permit to operate his stage carriage on the route Mysore-Mananthawady. He was operating one round trip from Mysore to Mananthawady and back. He filed an application for variation of the condition of the permit before the State Transport Authority, Karnataka, by allowing him to operate two more single trips between Mysore and Mananthawady and also for increasing the number of vehicle. The State Transport Authority granted variation subject to the condition that the varied service shall be operated on single point tax basis under interstate agreement and subject to counter signature of the State Transport Authority, Kerala. The State Transport Authority, Kerala, rejected the application for counter signature holding that the grant of variation by including one more vehicle under the same permit was illegal and not authorised by law. The 2nd respondent challenged the above order before the S.T.A.T., Ernakulam, in MVAA 943/2000. The S.T.A.T. allowed the appeal and directed the S.T.A, to grant counter signature. Aggrieved by the above order, the State has come up before this Court challenging the above order of the S.T.A.T. in MVAA 943/2000 by filing O.P. 33875/01.
2. O.P. 35367/01 was filed by Sri. M.S. Palaksha (1st respondent in O.P. 33875/01) for directing the State Transport Authority, Trivandrum, and the Secretary, S.T.A.T. to implement the order of the STAT and to make endorsement of counter signature for two additional trips as have been granted, on the permit and also for directing the 2nd respondent to pay cost of Rs. 25,000/-.
3. O.P. 36188/01 was filed by K.S.R.T.C. challenging the above order of the S.T.A.T. in MVAA 943/2000 granting counter signature as prayed for by M.S. Palaksha. Identical grounds as raised by the State in O.R 33875/01 had been raised by the K.S.R.T.C. also. It was further alleged that as per the interstate agreement executed between the State of Karnataka and the State of Kerala, services on the above route are earmarked for joint operation of the services of the State Transport Undertakings of both States and as such no permit can be issued to a private operator to operate any stage carriage on the above route.
4. Heard the learned Govt. Pleader, the standing counsel for K.S.R.T.C. and also the learned counsel for the respondent Sri.M.S. Palaksha (hereafter to be referred as the respondent).
5. The respondent was operating his stage carriage on the route Mysore-Mananthawady on interstate permit granted by the State Transport Authority, Karnataka. He was operating one round trip from Mysore to Mananthawady and back. He filed an application under Section 80(3) of the Motor Vehicles Act for increasing the number of trips by allowing him to operate one more round trip and as it could not be operated with one vehicle, he wanted another vehicle also to be added to the permit. The State Transport Authority, Karnataka, allowed the above variation prayed for subject to the counter signature of the State Transport Authority, Kerala. The State Transport Authority, Kerala, rejected the prayer for counter signature holding that by variation under Section 80(3) of the Act, permit cannot be issued to another vehicle also. The order of the State Transport Authority, Trivandrum reads:
"Heard the counsel for the applicant and the representative of KSRTC. It is noted that the permit was issued to stage carriage KA 09/A/990 as per Permit No. 41/99 valid from 15.11.99 to 14.11.2004. It is further noted that the existing permit has been modified by including one vehicle under the same permit and State Transport Authority, Karnataka has granted variation with the original permit by including one more vehicle.
There is no provision for issue of a permit to another vehicle after varying the regular permit. This is violation of the provisions of MV Act & Rules and Section 80(3) of the MV Act. Hence the application for grant of counter signature is rejected."
The respondent challenged the above order before the S.T.A.T. in MVAA 943/2000. The S.T.A.T. allowed the appeal, set aside the above order and directed the State Transport Authority to grant counter signature as prayed for within a stipulated time. Aggrieved by the above order the State filed O.R 33875/01 and later the K.S.R.T.C. filed O.R 36188/01 challenging the above order.
6. The main question for consideration is whether by variation of conditions of permit Under Section 80(3) of the Motor Vehicles Act, the number of vehicles can be increased.
The learned Government Pleader as well as the learned standing counsel for the K.S.R.T.C. submitted that Section 80(3) does not contemplate the increase of the number of vehicles by variation of the conditions of permit. It was further submitted that what was contemplated under Sub-section (3) of Section 80 was the inclusion of a new route or routes or a new area or by variation or extension or curtailment of the route or routes or by increasing the number of trips above the specified maximum and though as per Section 57(8) of the old Act of 1939, the number of vehicles could have been increased by variation in respect of contract carriages or public carriers, the above provision had been deleted in the corresponding provision in Section 80(3) of the present Act. It was further argued that as there was no provision in the Act or in the Rules for increasing the number of vehicles by varying the conditions of permit, the order of the STAT was illegal and was liable to be quashed. The learned counsel for the respondent argued that the number of vehicles also can be increased by varying the conditions of permit and there was no statutory bar or prohibition in increasing the number of the vehicles by variation of conditions of permit. Reliance was placed on the decision of the Supreme Court in K.S.R.T. Corporation, Bangalore v. B.A. Jayaram (AIR 1984 SC 790). There it was held:
"In the case of an existing inter-State permit exempted under the approved scheme an increase in the number of trips or the number of vehicles allowed to be operated under such a permit would not be inconsistent with the provisions of the approved scheme. There is no inconsistency between an increase in the number of vehicles or trips allowed under such a permit and the provisions of the scheme."
There the Supreme Court further held that Section 57(8) did not create a legal fiction and the grant of application for variation in the conditions of the permit in respect of a matter set out in Section 57(8) did not result in the grant of a new permit. It was further held that the usage of the words "shall be treated as an application for the grant of a new permit" in Section 57(8) would mean that the procedure to be followed with an application for variation of the conditions of the permit referred to in that sub-section would be the procedure under Sub-sections (3) to (7) to be followed as in respect of an application for a new stage carriage permit. In a later decision in R. Raghuram v. P. Jayarama Naidu (1990 (Supp.) SCC 361) the Supreme Court took the view that the variation authorising increasing the number of trips, in fact, would amount to granting of a fresh permit to run one more stage carriage service. There it was held:
"The variation authorising increasing the number of trips in fact amounts to granting of a fresh permit to run one more stage carriage service doing one round trip on the notified route and that would be in violation of the scheme itself because the scheme protects only the number of trips which were being operated at the time of its publication.
4. Our attention is, however, drawn to another decision of this Court in Karnataka State Road Transport Corporation v. B.A. Jayaram in which it has been held by a Bench consisting of two learned Judges that Section 57(8) does not create a legal fiction and grant of an application for variation in the conditions of one existing permit in respect of matters set out in Section 57(8) does not result in the grant of new permit in every case. With great respect to the learned Judges who decided the said case we feel that the said opinion is erroneous because the increase in the number of trips of vehicles which were being run under the existing permit does amount to grant of a new permit to operate one more stage carriage. Such a thing could not be permitted particularly in view of the decision in Adarsh Travels case."
Both the above decisions were made on Section 57(8) of the old Act. But Section 80(3) of the present Act is materially different from the old Section 57(8). A learned single Judge of this Court in Unni Nair v. R.T.A. (1991 (2) KLJ 140). While considering Section 80(3) of the present Act regarding the extension of an already extended route held:
"Section 72(2) of the new Act corresponds to Section 48(3) of the old Act. Clause (xxii) of the sub-section empowers the Transport Authority to vary the conditions of the permit and its proviso contains a restriction in regard to such variation in the same line as provided in Clause (xxi) of Section 48(3) of the Old Act. But Section 80(3) of the New Act is an innovation. There was no provision in the old Act which would correspond with it. Section 80(3) contains an absolute ban that in the case of extension, the distance covered by extension shall not exceed twenty-four kilometers from the termini."
It would be convenient to consider the provisions Under Section 80(3) of the present Act and Section 57(8) of the old Act. Section 80(3) of the Motor Vehicles Act, 1988 reads:
"An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or by altering the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit shall be treated as an application for the grant of a new permit:
Provided that it shall not be necessary so to treat an application made by the holder of stage carriage permit who provides the only service or any route to increase the frequency of the service so provided without any increase in the number of vehicles:
Provided further that, -
(i) in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometers;
(ii) in the case of extension, the distance covered by extension shall not exceed twenty-four kilometers from the termini, and any such variation or extension within such limits shall be made only after the transport authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof."
Section 57(8) which was the corresponding provision in 1939 Act reads:
"An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carrier's permit, by increasing the number of vehicles covered by the permit, shall be treated as an application for the grant of a new permit:
Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route or in any area to increase the frequency of the service so provided, without any increase in the number of vehicles."
A consideration of the above provision would reveal that Section 80(3) is substantially different from Section 57(8) of the old Act. Hence I do not think that the respondent can place much reliance on the decision of the Supreme Court in AIR 1984 SC 790 (supra). The specific provision Under Section 57(8) of the old Act to treat an application for the increase of the number of vehicles in respect of permits for contract carriages and public carriers, as applications for new permits, would clearly indicate that the law contemplated increase of the number of vehicles so far as contract carriage permits and public carrier permits were concerned. The absence of the above provision in Section 80(3) of the present Act was a clear indication that the Legislature wanted to avoid the increase of the number of vehicles by variation in the conditions of the permit invoking Section 80(3) of the Act. Thus by the omission of the above provision in the new Act, the Legislature did not intend to introduce new vehicles by variation of the permit conditions. The S.T.A.T. was mainly relying on some of the provisions in the statute which would indicate that a permit could be issued in respect of more than one vehicle. It is true that the provisions indicate that a permit can be in respect of more than one vehicle, but Section 80(3) does not contemplate the introduction of more vehicles in respect of the same permit by variation of the conditions of the permit. As per the new Act though the grant of permit was made more liberal, more restrictions had been imposed in the case of variation of permits.
7. The respondent was holding a permit in respect of a vehicle and was operating a round trip from Mysore to Mananthawady and back. He wanted to have another round trip by increasing the number of trip. In fact the variation sought for was for the introduction of a new vehicle by increasing an identical trip. Virtually by the variation sought for he was seeking another permit for another vehicle. Sub-section (3) of Section 80 does not contemplate the grant of such variation in effect so as to grant another identical permit in respect of another vehicle. Hence the variation sought for cannot be granted under Section 80(3). It is true that the number of trips can be increased, but that does not include the increase of number of trips by bringing in new vehicles or additional vehicles. Though such situation had been contemplated under the old Act, by the non-inclusion of similar provision in Section 80(3) of the present Act, the Legislature did not contemplate the introduction of new vehicles by variation under Section 80(3) of the Act though the number of trips could be increased in respect of the same vehicle.
8. The learned counsel for the respondent advanced a further argument that the countersigning authority was bound to accept the variation granted by the primary authority and to grant counter signature. The learned Government Pleader submitted that the countersigning authority was fully competent either to modify the conditions in the grant or refuse to counter sign. Reliance was placed on the decision of the Mysore High Court in M. Akbar Saheb v. Presiding Officer, The Mysore, S.T.A.T., AIR 1969 Mysore 242. There it was held:
"The effect of the Proviso to Section 63(3) is that when there is an inter-State agreement, the counter-signature of the permit could not be opposed and so could not be refused. But Section 63(2) invests the counter-signing authority to add conditions to the permit to be counter-signed and to vary the conditions which the primary permit incorporates. That power is an independent power uncontrolled by the duty to make the counter-signature, is plain from Section 63(2)."
I respectfully agree with the above approach and hence the countersigning authority was fully competent to refuse counter-signature or modify the conditions of grant.
9. The learned counsel for the K.S.R.T.C. submitted that by inter-State agreement entered into between the Karnataka State and the Kerala State on 23.10.1998, both the States have agreed for operating on the vacant routes by joint operation by the State Transport Undertakings. Ext. P1 in O.P. 33875/01 is the draft of the inter-State agreement entered into between the States of Kerala and Karnataka. The above agreement was the third supplemental inter-State agreement. Clause (3) deals with the operation of services on the routes which are earmarked for joint operation which reads:
"Both the State Transport Undertakings shall be entitled to operate the maximum number of buses and trips on the routes shown under joint operation in the two earlier agreements and any vacancy that exists under joint operation under any other Appendices or Annexures, shall beclaimed by the respective State Transport Undertakings and permits granted and countersigned."
The learned counsel for the respondent submitted that Ext. P1 is only a draft notification and the final notification approving the same has not been published and as such no reliance can be placed on it. It was further submitted that the first inter-State agreement between the above States was on 30.6.1976 (Ext. R1 produced along with the counter). As per Ext. R1 inter-State agreement, certain routes were allocated for the exclusive operation by the Karnataka operators. It was further submitted that Item No. 1 related to Mysore-Mananthawady and the maximum number of round trips to be operated was 6 and the petitioner was operating only one round trip and as such there were vacant trips for operation; and as the respondent was allowed to operate one more round trip and as it was in accordance with the inter-State agreement between the two States executed on 30.6.1976, the grant was proper and allowable. There was a supplemental agreement between the States of Kerala and Karnataka on 14.5.1992 as per SRO 584/92. That was the second supplemental agreement. The above agreement was subject to the other conditions of the existing inter-State agreement whereby both the States have agreed for the operation of inter-State routes exclusively by the State Transport Undertakings. It was further agreed in Clause(II) that in the case of any vacancy due to any breakdown or accident of any regular stage carriage service, State Transport Undertakings shall operate its vehicle in the above vacancy. Clause (II) reads:
"It is agreed to operate any vehicle of State Transport Undertakings on any inter-State route covered by the agreement in the event of breakdown, accident, etc., without exceeding the number of vehicles and trips. An intimation to this effect shall be sent to the reciprocating Transport Authorities within a fortnight from the date of such operation."
Thereafter in 1998 the third supplemental agreement was executed. Therein also both the States had agreed that any vacancy that exists under joint operation shall be operated by the State Transport Undertakings. In view of the above agreement between the two States, any vacant route will have to be operated by the State Transport Undertakings and the grant of an additional round trip with a new vehicle, in fact, would amount to the grant of a new permit and such a new permit cannot be granted in view of the supplemental agreement between the two States. On that ground also the order passed by the S.T.A.T. directing the State Transport Authority for countersignature has only to be set aside and the order of the State Transport Authority to be restored.
In the result O.P. 33875/01 and 36188/01 are allowed and the order of the S.T.A.T. in MVAA 943/2000 is set aside and the order of the State Transport Authority, Trivandrum, shall stand restored. O.P. 35367/01 shall stand dismissed.