K. S. R. T. C. v. REGIONAL TRANSPORT AUTHORITY — 1984 DIGILAW 287 (KAR)

K. A. SWAMI, J. ( 1 ) IN these two petitions under Articles 226 and 227 of the Constitution, the petitioner is the Karnataka Road Transport Corporation. It has sought for a writ in the nature of prohibition or any other appropriate writ or direction restraining the first respondent from entertaining and considering the applications filed by respondents-2 and 3, for grant of stage carriage permits on the routes Antharaganga to Sulekere and Sulekere to Antharaganga, being subject Nos. 153 and 154 of 84-85 respectively. ( 2 ) THE petitioner has filed the objections to both the applications. True copies of the same are produced as Annexures-B and D respectively. In the objections, apart from contending that the routes applied for by respondents 2 and 3 overlap the notified routes included in the approved Kolar Pocket scheme; as such the first respondent has no jurisdiction to grant the permit, has also requested the first respondent to appoint a Commission to inspect the routes in order to find out whether there is overlapping of the notified routes included in the Kolar Pocket Scheme. As the first respondent has failed to take steps as per the request of the petitioner and has posted the aforesaid subjects for consideration on 22. 9. 1984, the petitioner has approached this Court for the aforesaid reliefs. ( 3 ) IT is contended on behalf of the petitioner that as held by the Supreme court and this Court, in the case of notified routes included in a scheme of total exclusion, no permit can be granted in respect of a route which overlaps such notified route or routes. Therefore, it is submitted that unless it is found that there is no overlapping of the notified route included in the Kolar Pocket Scheme, it is impermissible to consider the application on merits. In other words, it is submitted that the aforesaid facts constitute jurisdictional facts and as such, those facts are required to be found in order to overcome threshold bar to consider the applications on merits. Therefore, it is submitted that it is incumbent on the 1st respondent to inspect either by itself or to have the route inspected through a Commission to find out whether the routes applied for overlap the notified routes. Therefore, it is submitted that it is incumbent on the 1st respondent to inspect either by itself or to have the route inspected through a Commission to find out whether the routes applied for overlap the notified routes. ( 4 ) SRI Santesh Gureddy, learned Counsel appearing for respondents 2 and 3, submits that respondents 2 and 3 have no objection for the R. T. A. or the Secretary, R. T. A. or appointing a commission, to inspect the routes in question in the company of the applicants and the objectors and their representatives for the purpose of finding out whether the routes applied for overlap the notified routes included in the schemes relied upon by the petitioner. ( 5 ) NO doubt, these petitions can be disposed of in terms of the aforesaid submission made by - Sri Gureddy, learned counsel for respondents 2 and 3. But the experience of this Court shows that the r. T. As and the K. S. T. A. , functioning in the State exercising the power under the motor Vehicles Act (hereinafter referred to as the 'act'), in the matter of granting stage carriage permits, have been proceeding to grant stage carriage permits without determining the question as to whether the routes applied for overlap the notified routes included in the scheme of total exclusion or partial exclusion even though specific objections are raised to that effect. Very recently, this was also noticed by this court in Writ petitions 12871 and 12872 of 1984 connected with Writ petitions 13403 and 13404 of 1984 decided on 27. 8. 1984. Further, Sec. 68ff of the Act, provides"where a scheme has been published under sub-section (3) of Sec. 68d in respect of any notified area, or notified route, the state Transport Authority or the Regional transport Authority as the case may be, shall not grant the permit except in accordance with the provisions of the scheme". Therefore, it is necessary, fo lay down certain procedure and norms to be followed by the R. T. As and KSTA in all such cases, in order to see that the scheme published under sub-section (3) of Sec. 68d of the Act, is not violated. Therefore, it is necessary, fo lay down certain procedure and norms to be followed by the R. T. As and KSTA in all such cases, in order to see that the scheme published under sub-section (3) of Sec. 68d of the Act, is not violated. ( 6 ) THE legal position is well established that if the route applied for overlaps the route included in the scheme of total exclusion, there is no jurisdiction in the r. T. A. or the S. T. A. , as the case may be, to grant stage carriage permit in respect of such route. In the case of MSRTC vs. Mysore State Transport Appellate Tribunal ( AIR 1974 SC 1940 ), it has been held as follows:"where the part of the highway to be used by the private transport owner traverses on a line on the same highway on the notified route, then that application has to be considered only in the light of the scheme as notified. If any conditions are placed then those conditions have to be fulfilled and if there is a total prohibition then the application must be rejected". Further on, in para-12 of the very same decision, it has been held as follows:"this Court has consistently taken the view that if there is a prohibition to operate on a notified route or routes no licences can be granted to any private operator whose route traversed or overlapped any part or whole of that notified route"again in para-19 of the very decision, it has been held that there can be no doubt that no permit or renewal can be granted however short the overlapping may be. "bench of this Court in the case of msrtc vs. MRAT and ORS, reported in 1967 (1) Kar. Law Journal, 148, has held that if the approved scheme is one of total exclusion of private operators from the notified area or route, the authorities under the Act, have no jurisdiction to grant them a permit even with the restriction of making it ineffective in respect of the overlapping part of the notified area or route. Law Journal, 148, has held that if the approved scheme is one of total exclusion of private operators from the notified area or route, the authorities under the Act, have no jurisdiction to grant them a permit even with the restriction of making it ineffective in respect of the overlapping part of the notified area or route. In the aforesaid decision, the Full bench has further held that even in the case of the approved scheme of partial exclusion, if such scheme does not make an express provision for the manner of partial exclusion, but it is clear from the scheme that it does not intend to totally exclude the private operators from the notified routes, the authorities under the Act, may grant or renew permits rendering them ineffective in respect of the overlapping parts provided the authorities are satisfied that by such grant or renewal, the scheme will not be impaired. Therefore, it becomes necessary for the R. T. A. or the S. T. A. as the case may be, in all such cases where the routes applied for overlap the notified routes included in the approved schemes of total exclusion, to determine whether there is overlapping or not. Such a determination is a condition precedent for the exercise of jurisdiction by the authority in as much as if there is overlapping, the application will have to be rejected without going into the merits in as much as the authority will not have jurisdiction to grant permit on such a route. On the contrary, if there is no overlapping, the authority will have jurisdiction to consider the application on merits. ""even in cases where the approved scheme is one of partial exclusion as per the aforesaid decision of the Full Bench, the authority is required to be satisfied that by such grant or renewal of the permit the scheme will not be impaired. Therefore, in such cases also, it becomes necessary to find out the extent of overlapping which fact is necessary and relevant for the purpose of deciding whether the scheme will be impaired or not. " ( 7 ) OF course, what is an overlapping and what is an inter-section, has been considered by the Supreme Court in the aforesaid decision and also by this Court in ksrtc vs. KSTAT, reported in AIR 1979 karnataka, 87. " ( 7 ) OF course, what is an overlapping and what is an inter-section, has been considered by the Supreme Court in the aforesaid decision and also by this Court in ksrtc vs. KSTAT, reported in AIR 1979 karnataka, 87. Very recently, I have also, on referring to the aforesaid two decisions, held in Writ petitions 12871 and 12872 connected with Writ petitions 13403 and 13404 of 1984, decided on 27-8-1984, as follows:"thus, if a common line of travel between the notified route and the route applied for, commences at the one end of a village or town or city limit and continues beyond the other end of a village or town or city limit, it is not possible to hold that there is no overlapping and it is only an intersection. In such a case, there is traversing of the notified route and not intersecting it. As held by the Supreme court in AIR 1974 S. C. 1940 (MSRTC vs. MSTAT), an intersection is not traversing the same line, as it cuts across it. When the common line of travel continues even beyond the limits of a village or a town or a city, there is no cutting across the notified route, but there is overlapping of the notified route as the route applied for traverses the notified route even after crossing the boundary of a village, town or city limits. In such a situation, it is capable of forming two termini to enable the passengers to get in at one point and get down at another point". ( 8 ) IN order to determine whether there is an overlapping or an intersection, it is necessary to collect the material as to what is the extent of common line of travel of the two routes i. e. , the route applied for and the notified route included in the scheme and also the points at which the common line of travel commences and ends; the places situated at or around the common line of travel. It is possible to collect all these information only if the r. T. A. or the S. T. A. as the case may be undertakes inspection of the routes applied for or appoint its Secretary or any other officer as agreed to by the applicants and objectors, to inspect the routes in the company of the applicants and objectors and their representatives. Information so collected will be an authentic one and will be of great assistance in coming to the conclusion. In the absence of such material, the decision of the authority on the aforesaid questions will be without a proper basis. Therefore, in all such cases, it is necessary for the R. T. A. or the s. T. A. as the case may be, either to undertake inspection of the routes applied for, by itself or appoint its Secretary or any other officer as agreed to by the parties to inspect the routes applied for and collect the information on the points referred to above, and then decide the question as to whether the routes applied for overlap the notified route included in the scheme of total or partial exclusion, as the case may be. If the decision of the authority is that there is no overlapping, it can proceed to consider the application on merits. On the contrary, if the decision is otherwise, the application will have to be rejected. In the case of the notified route included in the scheme of partial exclusion, the authority while considering the application on merits, shall have to decide the question as to whether by grant or renewal of the permit, the scheme will or will not be impaired. ( 9 ) FOR the reasons stated above, these writ petitions are allowed in the following terms: as agreed to by the petitioner and respondents 2 and 3, the Secretary, r. T. A. , Bangalore be appointed by the first respondent to inspect the routes applied for by the respondents 2 and 3 being subject Nos. 153 and 154 of 84-85 respectively in the company of the petitioner and respondents 2 and 3 and their representatives and to make a report on the following points: (I) The common line of travel between the routes applied for by respondents 2 and 3 and the notified routes included in the Kolar Pocket Scheme and Kanakapura scheme; (ii) The extent of common line of travel and the points at which the common line of travel begins and ends and the places situated at or around the common line of travel. On submission of such report by the Secretary, r. T. A. , the first respondent shall afford an opportunity to the petitioner and respondents 2 and 3 to file their objections, if any, and then decide the questions as to whether the routes applied for overlap the notified routes included in the Kolar Pocket scheme and Kanakapura Scheme. If the first respondent, on considering the questions, in accordance with the observations made in this order and in accordance with law comes to the conclusion that the routes applied for overlap the notified routes included in the aforesaid two schemes of total exclusion, it shall reject the applications. On the contrary, if the authority comes to the conclusion that there is no overlapping, it shall consider the applications in its next meeting, on merits. ( 10 ) SRI L. M. Pandurangaswamy, learned high Court Government Pleader, is permitted to file his memo of appearance for respondent-1 in six weeks. --- *** --- .