Karnataka High Court
D.T. Lakshminarasimha Lyengar vs The Karnataka State Transport ... on 22 September, 1980
Equivalent citations: AIR1981KANT173, AIR 1981 KARNATAKA 173
JUDGMENT
1. The petitioner in Writ Petition 11770 of 1977 is one Sri D. T. Lakshmimirasimha lyengar. The petitioner in Writ Petition 639 of 1978 originally was one Sri D. S. Sundar who, during the pendency of to quash order of State Transport Appellate Tribunal, Bangalore, D/- 28-9-1977. the writ petition transferred the permit to one Sri A. M. Ponnuranga Mudaliar Accordingly, Sri Ponnuranga Mudaliar has come on record in place of the original petitioner in Writ Petition .639 of 4978.
2. In both these petition, the validity of the order dated 28th September, 1977 passed by the Karnataka state Transport, appellate Tribunal respondent No. I (hereinafter referred to as 'the Appellate Tribunal') in Appeals Nos. 290/75 and 573/76 and Appeal No. 275/75 and other connected appeals, is in question. The Appellate Tribunal, by the impugned order, has set aside the grant of permit made in favour of the Karnataka State Road Transport Corporation (shortly, KSRTC) for running two trips on the route Bangalore to Pondicherry and has remitted the application of the KSRTC to the State Transport Authority for reconsideration. By the very order, the appellate Tribunal has affirmed the order of the State Transport Authority rejecting the application filed by the petitioner in Writ Petition 11-770 of 1977 and the original petitioner in Writ Petition 639 of 1978.
3. The brief facts of the case were as follows: The petitioner in Writ Petition 11770 of 1977 was holding a permit on the route Bangalore to Pondicherry for one trip per day. Similarly, at the relevant point of time, the original petitioner D. T. Sundar in Writ Petition 639 of 1978 was holding the permit on the very same route for one trip per day. Each one of them made application for grant of additional trip so as to enable them to have daily one round trip each The KSRTC also made an application for grant of permit on the very route for one round trip to be performed by two vehicles. In this connection, it might also be noticed that on 1-5-1973, an inter-State agreement arrived at between the State of Karnataka and Tamil Naidu was published under the provisions of Section 63 (3-B) of the Motor Vehicles Act, 1939 (hereinafter referred to 'as the Act') for operating vehicles with two round trips on the route Bangalore to Pondicherry. The State Transport Authority, after complying with the necessary procedural requirements, took up the applications filed by D. T. Sundar and , that of the KSRTC for consideration. The State Transport Authority, for the reasons stated, in its order, decided to grant the permit to the KSWFC. The application of D.T.S was rejected on the ground that though he was granted a permit for single trip on the route, in question, as long back as on 1-3-1971, and he was able to obtain the counter-signature only recently and was able to commence the service only about two months prior to do passing of the order Further, it was of the view that the distance from Banglore to Pondicherry and back bang 600 kilo metres was not possible to operate the entire route with, one vehicle and that D. T. Sundar bad also not made away provision for keeping reserve vehicle. Accordingly, it granted the application of the KSRTC and rejected that of D. T. Sunder. The application of the petitioner in Writ petition11770 of 1977 also came to be rejected on 27/28th May 1976 in subject. No. 163 if 1976 on the ground that KSLTC had already been grant a permit and the same route therefore there was no vacancy for granting that application of the petitioner. It was also of the view that when the trips were performed by other private operators, there west no representations from the public regarding the inadequacy of the services therefore, it was not desirable to introduce the remaining two angles also shortly after two additional Vehicles were brought on the inter-State agreement. It therefore came to the conclusion that were was no need and also that them was so provision in the inter-State agreement.
4. In the appeal, The appellate Tribunal set wide the grant made in favour of a KSRTC on the ground that irrespective of The agreement, the State Transport Authority ought to have found out Whether there was wed for granting permit on the route in question and without recording such a Boding, the grant made in favour of the KSRTC was not sustainable Accordingly the grant made in favour of the KSRTC was set aside and the application of the KSRTC was remitted by the order dated 28th September 1979 passed in Appeals Nos. 29O/75, 573/76 and 275/75. By the very same order, the appellate Tribunal also affirmed. The order passed by the State Transport Authority rejecting the applications of the petitioners. The Appellate Tribunal came to the conclusion that it was not pos to perform one round trip per day with single vehicle; that to allow the journey to be performed throughout the day and night continuously would not be in the interest of the travelling public that engaging three drivers would be uneconomical the operators and that 1here was no , provision made for spare vehicle. It, was also of the View that it was not certain as to Whether the existing permits were included in the agreement relied upon by the parties; that so further grant of permit to private operators was permissible in view of the agreement between the State of Karnataka and Tamil Naidu per the Government Order M. S. No. 1875, Home, dated 26th July, 1974. It also took the view that there was no agreement between Tamil Naidu and Pondicherry to establish the alleged need Accordingly, it refused to remit the applications of the petitioners and confirmed the order of the State Transport Authority.
5. Sri M. Rangaswamy, the learned counsel for the petitioners in both the writ petitions, submitted that the reasons given by the Appellate Tribunal were not sustainable. He also submitted that the reasoning of the Appellate Tribunal that it was not possible to perform one round trip a day on the route in question by one vehicle was not correct as the total length of one round trip on the route in question would come to 600 kilo metres and the same could be performed in oft day by a single vehicle without contravening any of the provisions of the Act and the Rules framed there under. It was also submitted that it was not required to me a provision for spare driver as it was not a condition precedent for grant of the permit and it was only a restriction regarding the hours of working of the driven as provided by Section 65 of the Act. It was also submitted that under the agreement arrived at between the State of Karnataka and Tamil Naidu as per Exhibit- A, dated 1-5-1973, the permit for one additional trip could have been granted on the route in question to the petition only and not to any other persons inasmuch as the agreement specifically provided for four trips for two buses. It was also submitted that the appellate authority had not correctly read the agreement and had committed an error in referring to the modification of the scheme under Government Order M. S. No. 1975 Home, dated 26th July, 1974 published in the Gazette-extraordinary by the Tamil Naidu Government on 30-7-1974 as agreement. The learned counsel submitted that the appellate authority also failed to am that the material portion of the scheme specifically exempted the operators to whom the permits had been given by the, transport authorities of Karnataka and Pondicherry as per tile agreement between Tamil Naidu, Karnataka and Pondicherry.
6. On the contrary, it was submitted on behalf of the KSRTC that the agreement in question could not be relied upon because the Government of Pondicherry was not a party to agreement; that the finding recorded by the Appellate Tribunal that it was not possible to perform one round trip by a single bus was a finding of fact and was not liable to be disturbed by this Court in a petition under Art. 226 of the Constitution. It was also submitted that the finding regarding the need was also a finding of fact and that the KSRTC being the State Transport Undertaking, was entitled to be preferred in the matter of granting of permit; as such, this was not a matter for interference under Article 226 of the Constitution.
7. Sri Rangaraju, the learned counsel for respondent-6, adopted the contentions put forth by Sri Ramesh, the learned counsel appearing for the KSRTC.
8. Having regard to the rival contentions of the parties, the questions that arise for consideration are:
(1) Whether the Appellate Tribunal was justified in law, in not remitting the applications of the petitioners for consideration along with the application of the KSRTC?
(2) Whether the order passed by the Appellate Tribunal is liable to be interfered with under Arts. 226 and 227 of the Constitution ?
9. It was not disputed that on the date when the KSRTC filed the application i. e., 124-1972, for grant of two trip for two vehicles. The petitioner in Writ Petition 11770 of 1977 and the original petitioner in Writ Petition 639 of 1978 D. T. Sundar, were each granted the permit fog performing one trip from Bangalore TO Pondicherry. The agreement between the State of Karnataka and the Tamil Naidu on the route in question came to be published on 1-5-1973 as per Ext.-A. After the agreement the petitioner in Writ Petition 11770 of 1977 and the petitioner In Writ Petition 639 of 1978 Med separate applications for grant of one additional trip each on the route in question. It was also their case that the agreement also included the route in question and it was they who were entitled to take advantage of the agreement. As already pointed out, the State Transport Authority rejected the applications of the petitioners on the ground that it was not possible to perform one round trip a day by a single vehicle and that there was no provision made for additional driver In the case of petitioner in Writ Petition 11770 of 1977, it was held that in view of a grant made in favour of the KSRTC, then was no vacancy. The State Transport Authority proceeded on a wrong basis in coming to the conclusion that one round trip a day could not be performed by a single vehicle. It was, not disputed that the total length of the route in question for one round trip would not exceed 600-kilo metres. As provided in Section 71 read with VII Schedule of the Act, a heavy passenger motor vehicle could be driven up to a maximum of 60-kilo metres an hour. Even after giving all the margin for stops and limit in the speed at various stages, it cannot be said that the journey cannot be performed in one day in fact, it is brought to the notice of the Court by S.T.M. Rangaswamy, learned counsel for the petitioners, that the Appellate Tribunal has affirmed the grant of additional trip to one Sri G. V. Appanna, on the route Tumkur to Thirupathi for, one vehicle and the distance of which is more than 600 kilo metres. Similarly, the other two reasons given by the Appellate Authority that there is no provision made for, additional driver and that it would be dangerous to the travelling public if the journey is continued day and night are also not tenable. Wherever it is necessary to have an additional driver, it is open for the authority to prescribe it as a condition of grant so that the provisions of S. 65 of the Act are not disobeyed. As far as the observation of die Appellate Tribunal that it would be dangerous to the travelling public if the journey is performed day and night, it appears to me that it has proceeded on the assumption that in the forward as well as in the return journey, the same passengers would be travelling in the bus. This, on the face of it is untenable. It is also brought to the notice of the Court that the Tribunal has not even looked into the time schedule given by the petitioners. According to the time schedule given by the Petitioner in Writ Petition 11770 of 1977, he has proposed departure from Bangalore at 5.30 a.m. and arrival at Pondicherry at 1.30 p.m. and to start return journey from Pondicherry by 3.15 p. m. and reach Bangalore at 10.50 p. m. whereas, the Appellate Authority has proceeded on the basis that the proposed timings given by Sri D. T. Sundar are to start from Pondicherry at 9.30 p.m. and reach Bangalore at 6.00 a. m. As far as the timings are concerned, it is always open for the authority to assign altogether fresh timings if the authority is of the opinion that the timings proposed by the applicant do not suit the convenience of the travelling public.
10. The view taken by the Appellate Tribunal is That the agreement in question does not establish the need as the agreement is not between the, State of Karnataka and Pondicherry. In this regard, it is contended by Sri Ramesh, the learned counsel, for the KSRTC, that the agreement is not valid in as much as under the provisions of the Act, the. agreement must be with reference to the route and all those States through, or in, the territory of which the route passes or lies, must be parties to the agreement and in the instant ease, part of' the route lies in the territory of Pondicherry, Which is not a party to the agreement. It is also further submitted that as Pondicherry is not a party to the agreement in question, as such the same cannot be taken as an agreement for the route from Bangalore to Pondicherry for the purpose the Act.
11. In this connection, it is to be noticed that the object of an agreement arrived at between the State after complying with the requirement of S. 63 (3A) of the Act, is to' do away with the procedure to be followed f or the grant of counter-signature of permits in respect of the route to which the agreement relates as laid down in Section 57 of the Act. This position is clear from the proviso to sub-section (3) of Section 63 of the Act. Thus the agreement published under Section 63 (3B) of the Act enables the grantee to obtain, and the State Transport Authority of another State or the Regional Transport Authority concerned to grant the counter-signature of permit in respect of the route covered by the agreement, without following the procedure prescribed in S. 57 6f the Act. That being so, even though the agreement ma - y relate to the route lying in more than two States, but nevertheless it is open for any two of such States continguously situated to arrive at an agreement in respect of the portion of the route lying within their territory after complying with the, requirements of S. 63(3A) of the Act and publish the same as per S. 63(3B) of the Act. Such an agreement in so far it relates to the route lying within those States would be, a valid agreement and the State Transport Authority of those States and the Regional Transport Authority concerned are to give effect to the same. The fact that the Government at of Pondicherry is not a party to the agreement in question, the does not in any way affect, either the validity or the effect of the agreement arrived at between the states of Karnataka and Tamil Naidu in respect of the route named in the agreement and lying in Karnataka and Tamil Naidu. In other words, the agreement in question does not cease to be an agreement for the purpose of the Act, merely because the Government of Pondicherry is not a party to the same. It only means that in respect, of the route lying in the Territory of Pondicherry, it will be necessary to follow the procedure laid down in See. 57 of the Act for the purpose of granting counter-signature of the permit. There is neither a positive provision in the Act providing that the, agreement must relate to the entire route and all the States within the territory of which the route passes must be parties to the agreement nor is there any prohibition contained in the Act that there cannot be an agreement by some of the States in respect of the portion of the route lying within their territory. Further, as already pointed out, the object served by the agreement being only to dispense with the procedure required to be followed under Section 57 of the Act for the grant of counter-signature of permits it is open for some of the States within whose territory the route passes through, to arrive at an agreement in accordance with the provisions contained in S. 63 (3A) of the Act and publish the same under S. 63 (3B) of the Act Therefore the contention of Sri Ramesh. learned counsel for the KSRTC, that the agreement in question is not valid and it cannot be considered as the agreement in respect of the route from Bangalore to Pondicherry for the purposes of the Act. cannot be accepted.
12. Sri M. Rangaswami, learned counsel for the petitioners, is also right in contending that the Appellate Tribunal is not correct in referring to the scheme as the modification of the agreement. The Scheme dated 26th July, 1974 published by the Tamil Naidu Government exempts the KSRTC of the operators to whom the permits may be given by the Transport Authority of Podicherry and Karnataka as per the inter-State agreement between the Governments of Tamil Naidu, Karnataka and Pondicherry.
13. The Tribunal, having remitted the application filed by the KSRTC (3rd respondent), and the petitioners being the operators on the same route performing one single trip each, ought to have remitted the applications of the petitioners also for consideration along with the application of KSRTC.
14. From what is stated above, it is clear that the conclusions arrived at by the appellate authority are vitiated because of the fact that the agreement in question has not been taken into account and that it has proceeded as strong assumption that one round trip cannot be performed with one vehicle. If a finding of act is arrived at on wrong assumption of facts and on non-consideration of certain material on record, such a finding will not be a valid finding in law and as such it will be liable to be interfered with in exercise of the jurisdiction under, Art. 226 or Art. 227 of the Constitution. That being so, the contention of Sri Ramesh, learned counsel for the KSRTC, and Sri Rangaraiu, learned counsel for respondent No. 6, that the finding recorded by the Appellate Tribunal regarding the possibility of performing one round trip journey with one vehicle being a finding of fact cannot be interfered with, cannot be accepted. In this view of the matter, it is not necessary to refer to several decisions relied upon by the learned counsel for the respondents 3 and 6 regarding the scope of interference by this Court under Article 226 or Art. 227 of the Constitution.
15. For the reasons stated above, these writ petitions are allowed. The order passed by the Appellate Tribunal dated 28-91977 in Appeals Nos. 290/75, 573/76 and 275175 (Exhibit-D) in so far it relates to the rejection of the applications filed by the petitioners, only is hereby quashed. The resolution of the Karnataka State Transport Authority passed in Subject Nos. 229 and 230 of 1975, dated 18/19-4-1975 (Exhibit-B) and in Subject No. 163 of 1976, dated 27/28-5-1976 (Exhibit-C), are hereby quashed. The applications of the petitioners stand remitted to the Karnataka State Transport Authority with a direction to consider the same along with the application of the KSRTC in accordance with law and in the light of the observations made in this order. The Karnataka State Transport Authority is also directed to dispose of all the three applications within four months from the date of receipt of this order.
16. Writ petitions allowed.