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1991 DIGILAW 121 (KER)

Thomas Luka v. Secretary R. T. A.

1991-03-13

RADHAKRISHNA MENON

body1991
Judgment :- The reliefs prayed for in the O.P. read:- "(i) call for the records leading to Exts. P5 and P7 and quash the same by the issuance of a writ of certiorari or any other appropriate writ of certiorari or any other appropriate writ direction or order; (ii) direct the 1st respondent to restore Ext. p4 timings; by considering Ext. P6 objections; (iii) stay the operation of Ext. P5 timings with liberty to operate the service by the 3rd respondent on the basis of Ext. P4 timings, pending the final disposal of the original petition; (iv) pass such other orders deemed fit in the circumstances of the case; and (v) award the costs of the petitioner." 2. By Ext. P2 order the Secretary, R.T.A., Kottayam, granted to the 3rd respondent a temporary permit for twenty days to operate his vehicle KEK1203 on the route Kaippally-Palai via., Bharananganam, Ambaranirappel, Erattupetta and Poonjar with the timings made mention of therein. The petitioner challenged Ext. P2 before the S.T.A.T. by filing a revision, the S.T.A.T. while sustaining the grant directed the Secretary to consider the objections, the petitioner has filed, to the timings given to the 3rd respondent, and pass appropriate orders within one week from the date of receipt of the order. This order reads:- "Learned Standing Counsel also. 3rd Respondent's permit is for 20 days. Hence the Secretary is directed to consider Ext. P2 objections with notice to 3rd respondent, in one week. Petition allowed to this extent". 3. The Secretary incompliance with the above direction considered the objections of the petitioner and issued Ext. P4 order rescheduling the timings. 4. This was the state of affairs when the R.T.A. granted the regular permit to the petitioner on the route which till then was being operated by him with the vehicle KEK 1203 on the basis of the temporary permit mentioned above. On the grant of the regular permit the 3rd respondent surrendered his temporary permit. Taking all these aspects and the convenience of the travelling public into account, the Secretary issued the regular permit with the timings made mention of in Ext. P5. 5. On going through Ext.P5, the learned counsel for the petitioner submits, it can be seen that the Secretary, R.T.A. has restored Ext. P2 timings which had been set aside by the S.T.A.T. by Ext. P3 order. P5. 5. On going through Ext.P5, the learned counsel for the petitioner submits, it can be seen that the Secretary, R.T.A. has restored Ext. P2 timings which had been set aside by the S.T.A.T. by Ext. P3 order. The Secretary, R.T.A., it is further submitted, has no authority to restore Ext. P2 timings. The petitioner therefore was constrained to file Ext. P6 representation before the Secretary seeking a revision of the timings evidenced by Ext. P5. The Secretary by Ext. P7 order rejected Ext. p6. Ext. P7 order reads:- "You are informed that enquiry conducted through the Joint R.T.O., Palai revealed that there is no chance for clash in the timings of KRO 3155 with KEK 1139 on any trip. It is also seen that the passing time of S.C. KEK 1203 at Palai is 8.57 and that of S.C. KEK 1139 is 8.55 A.M. There is a gap of only 2 minutes. Hence your objection deserves no consideration". This order Ext.P7 as also Ext. P5 order of the Secretary, R.T.A., according to the learned counsel, are not sustainable and therefore they are liable to be set aside. 6. It is argued on behalf of the petitioner that Ext. P5 order restoring Ext. P2 timings is one passed in violation of the order of the appellate Tribunal, Ext. P3, and therefore the same is not sustainable in law. lam not impressed by this argument. As has rightly been stated by the R.T.A. under the changed circumstances the timings settled by Ext. P5, required revision. This finding based on materials/ evidence is beyond challenge. 7. It was then argued that the timings given to a vehicle on the grant of a new permit shall not clash with the timings given to the vehicle already plying on the same route. If there is the likelihood of any such clash the same can be resolved only after due notice to interested parties. In support of this plea the counsel for the petitioner pressed into service the provisions contained in rule 212 of The Kerala Motor Vehicles Rules. The Rule reads: "212. If there is the likelihood of any such clash the same can be resolved only after due notice to interested parties. In support of this plea the counsel for the petitioner pressed into service the provisions contained in rule 212 of The Kerala Motor Vehicles Rules. The Rule reads: "212. Schedule of timings.--(1) The State or Regional Transport Authority may from time to time- (a) by a general order prescribe a schedule of timings for stage carriages other than those belonging to State Transport Undertakings running on specified routes, or (b) by a special order prescribe a schedule of timings for each stage carriage other than that belonging to State Transport Undertaking. (2) The changes ordered by the Transport Authority in the timings of a service shall not be considered as variation of permit under sub-section (3) of S.80 of the Act. (3) The State Transport Authority or the Regional Transport Authority may, by resolution, delegate to its Secretary the powers conferred on it under this rule subject to any conditions that it may prescribe: Provided that the State or Regional Transport Authority shall not however vary the timings of a service without giving to the interested permit holders an opportunity to represent their case". This Rule confers authority on the State or Regional Transport Authority to prescribe from time to time a schedule of timings for stage carriage other than those belonging to the State Transport undertakings run on specified routes by a general order. The said authorities have also the power to prescribe from time to time a schedule of timings for each stage carriage other than that belonging to the State Transport undertaking by a special order. Clause 2 mentioned above provides that changes ordered by the Transport Authority in the timings of services however, will not be considered as variation of the permit under sub-section 3 of S.80 of The Act. 8. The scope of the proviso, I shall now consider. From the plain and unambiguous language employed in the proviso it can be said that the R.T. A. cannot vary the timings of a service without giving to the interested permit holders an opportunity to represent their case. In other words there cannot be any variation of the timings given to a service without affording all other interested permit holders, an opportunity to represent their case. In other words there cannot be any variation of the timings given to a service without affording all other interested permit holders, an opportunity to represent their case. The argument of the counsel for the petitioner based on this proviso therefore is sound. But the same, the Government Pleader submits, cannot be accepted as the proviso is in conflict with or repugnant to the provisions of the enactment, under which the rule is framed, governing the settlement of timings. 9. Can this argument of the learned Government Pleader be taken cognisance of is the question, we have to tackle. A reference in this connection to Ss.70,71 and 72 of The Act is relevant. S.70 says that an application for a permit in respect of a stage carriage or as a reserve stage carriage, as far as may be, contain the following particulars, namely:- leaving out parts of the Section which are not relevant here (c) the minimum and maximum number of daily trips proposed to be provided and the time-table of the normal trips. While considering such an application for the grant of the permit, whether permanent or temporary, if the R.T.A. is of opinion that the time table furnished by the applicant, if approved, would result in the stage carriage being driven at a speed more than the speed at which the vehicles can be driven as per the provisions of the Act, the R.T.A. is bound to refuse to grant the permit. To put it differently the R.T.A. shall refuse to grant the stage permit if it appears from any time table furnished that the provisions of the Act relating to the speed at which the vehicles maybe driven are likely to be contravened (vide sub-section 2 of S.71). The Act however does not contain any provision, it is conceded, warranting the issuance of notice to the other operators who are also operating on the route 01 part of the route made mention of in the application before the time table attached to the application is accepted by the R.T.A. The question as to whether there is the likelihood of a conflict of the timings given to another operator on the time table being accepted, in my view, does not arise for consideration. That is the scheme of the provisions of the Act relating to settlement of the timings. That is the scheme of the provisions of the Act relating to settlement of the timings. The approved time table, the operator is bound to exhibit on the vehicles and at specified stands and halts on the route or within the area as provided for under clause (iv) of sub-section 2 of S. t2. The cumulative effect of these provisions is that when once the time table, an applicant would produce alongwith his application for the grant of a permit, is approved by the R.T.A. on the said authority being satisfied that there is no possibility of contravention of any of the provisions relating to the speed at which the vehicles can be driven, then the order according sanction to such a time table cannot be challenged by another operator already on the route or covering part of the route on the ground that the said timing is in conflict with the timings given to his vehicle. Even accepting that there will be conflict in the timings given to such operators, there is no need for the R.T.A. to give such operators an opportunity of being heard before the said timings is settled. I wish to state in this connection that no other provision relating to the settling of timings has been brought to my notice. 10. It is in this background the above argument of the petitioner requires to be considered. As already noted the Statute does not contain any provision warranting the issuance of notice to the operator who is plying his vehicle on the route or part of the route made mention of in the application for the grant of the permit. On the other hand the only aspect the R.T.A is bound to take into account while accepting the time table is the one contemplated under sub-section 2 of S.71. The proviso to Rule 212 on the other hand, as already noted, says that the State or Regional Transport Authority shall not vary the timings of the service without giving all the interested permit holders an opportunity to represent their case. This proviso in my view, has no role to play while considering the question as to whether the time table attached to the application for the grant of a permit is acceptable or not. This proviso in my view, has no role to play while considering the question as to whether the time table attached to the application for the grant of a permit is acceptable or not. Only when the State or the R.T.A. decides from time to time to issue a general order prescribing the schedule of timings for stage carriages or prescribe a schedule of timings for each stage carriage by special order, the proviso is attracted. Such a situation would arise only after the issuance of the permit on the basis of the order granting the permit with the time table approved. The proviso thus can be said to prescribe that the timings already given to an operator can be varied only after giving him an opportunity to represent his case. Considered in the light of the discussion above, the reliefs prayed for in the O.P cannot be granted. The O.P. fails. Accordingly the same is dismissed.