Thomas Lucka v. Secretary R. T. A. — 1991 DIGILAW 277 (KER)

Judgment :- Bhat, Ag. CJ. Petitioner in O.P. No. 2529 of 1991 has filed this appeal challenging the dismissal of the O.P. 2. Appellant is an existing operator with a pucca permit on the Kottayam-Kunnonni route. Third respondent was granted temporary permit for 20 days under Ext.P2 on a partly overlapping route, with the timings shown therein. Appellant's stage carriage was passing through Palai at 8.57 AM. According to the timings given in Ext. P2, the third respondent's stage carriage will pass through Palai at 8.55 AM. Appellant filed a Revision Petition before the State Transport appellate Tribunal challenging the timings granted to the third respondent. The Tribunal directed the Secretary, Regional Transport Authority, to consider the appellant's objections with notice to the third respondent, as is seen from Ext. P3 order. The Secretary, Regional Transport Authority, the first respondent, thereafter passed Ext. P4 order. According to this order, appellant's stage carnage will pass through Palai at 8.57 AM. and the third respondent's stage carriage will pass through Palai at 9 A.M. While matters remained so, the Regional Transport Authority granted a regular permit to the third respondent under Ext. P5 with a set of timings. By Ext. P5 the timings granted by Ext. P2 order to the third respondent were restored, that is the stage carriage of the third respondent will pass through Palai at 8.55 A.M. Ext. P5, it is noticed, refers to the timings as "settled timings". That does not appear to be correct. Thereupon appellant gave Ext. P6 representation to the first respondent against the timings given in Ext. P5. The first 'respondent sent Ext. P7 reply stating thai because of the interval of two minutes there is no clash of timings. Appellant thereupon filed the Writ Petition challenging Exts. P5 and P7. 3. Learned Single Judge, adverting to Ss.70 and 71 of the Motor Vehicles Act, 1988, took the view that once it is found that the timings would not offend the provisions of the Act regarding speed limit, the timings have to be approved, and at that stage likelihood of conflict with another operator would not arise, and the order approving the timings as contemplated under S.71(2) cannot be challenged by another operator already on the route or covering a part of the route on the ground that the said timings are in conflict with the timings given to his vehicle. Learned Single Judge further held that even accepting that there will be conflict with the timings given to such operators, there is no need for the Regional Transport Authority to give such operators an opportunity of being heard before the said timings are settled and the latter cannot challenge the timings approved. It is also indicated that the only aspect the Regional Transport Authority is bound to take into account while accepting the lime-table submitted along with an application is the one contemplated under S.71(2). Referring to the proviso to Rule 212 which states that the State or Regional Transport Authority shall not vary the timings of the service without giving all the interest permit holders an opportunity to represent their case, learned judge held that I he proviso 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. It applies only where the Authority decides. from time to time to issue a general order prescribing the schedule of timings for stage carriages or prescribes a schedule of timings for each stage carriage by special order. 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 would not, it is said, apply to the earlier stage of approving timings suggested by the applicant for a permit. 4. S.70 deals with application for stage carriage permit. Sub-section (1) requires that an application for a permit of a stage carriage should, as far as may be, contain the particulars prescribed in clauses (a) to (f) of sub-section (1), namely, the route or routes or the area or areas to which the application relates, the type and seating Capacity of each such vehicle, the minimum and maximum number of daily trips proposed to be provided and the time-table of the normal trips, the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions, the arrangements intended to be made for various purposes indicated in clause (e), and such other matters as may be prescribed. S.71 deals with procedure of RTA in considering application for stage carriage permit. According to sub-section (1) the authority shall have regard to the objects of the Act. S.71 deals with procedure of RTA in considering application for stage carriage permit. According to sub-section (1) the authority shall have regard to the objects of the Act. Sub-section (2) states: " A Regional Transport-Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the 'provisions of this Act relating to the speed at which vehicles may be driven are likely to be corn ravened; Provided that before such refusal an opportunity shall be given to the applicant to amend the time-table so as to conform to the said provisions". S.72 deals with grant of stage carriage permits. Sub-section (1) states: "Subject to the provisions of S.71, a Regional Transport Authority may, on an application made to it under S.70, grant a stage carriage permit in accordance with the application or with such modification as it deems fit or refuse to grant such a permit; Provided that no such permit shall he granted in respect of any route or area not specified in the application". 5. It is necessary that an applicant should indicate in the application the proposed timings and the minimum and maximum number of daily trips. These particulars are necessary for more purpose than one. They are necessary because the authority must satisfy itself that the provisions of the Act relating to the speed limit are not likely to be contravened. This aspect can be decided on a study of the timings and the distance of the route and the like. These particulars relating to timings have to be furnished in the application and require approval for another reason too. Public interest requires that the authority granting a permit should ensure elimination of unhealthy competition between operators, if the timings granted to two or more stage carnages are identical or near identical, depending on. the locality, the amount of traffic obtaining therein, density of passenger traffic and the like, there is every possibility of unhealthy competition leading to excessive speed, endangering safety of public. This is an aspect which has been well-recognised over the years. This aspect is not covered by S.71(2) as rightly pointed out by the learned judge. The attention of the learned judge was not drawn to S.72(1). This is an aspect which has been well-recognised over the years. This aspect is not covered by S.71(2) as rightly pointed out by the learned judge. The attention of the learned judge was not drawn to S.72(1). S.72(1) of the Act empowers the Authority to grant permit in accordance with the application or with such modification as it deems fit or refuse to grant such a permit. Where the timings given in the application are such that the provision of the Act relating to speed are likely to be contravened and for that reason the application is likely to be rejected, the proviso to S.71(2) enables the applicant to amend the time-table suitably. S.71(2) does not empower the Statutory Authority to modify the time-table suggested by the applicant. However, such a power is clearly spelt out from sub-section (1) of S.72, in as much as it grams power to make modifications as it deems fit. The modification could as well-he in regard to the timings suggested in the application. The Statutory Authority has power to fix timings in public interest, even deviating from the timings suggested in the application. 6. The question which next arises for consideration is whether the existing operators have a right to an opportunity to represent their case in regard to the timings suggested in art application for permit or where the Authority desires to modify the same. S.90 dealswith Revision. S.90 enables the Tribunal, on an application made to it, to call for the record of any case in which an order has been made by statutory authority against which no appeal lies, and if it appears to the Tribunal that the order made by the statutory authority is improper or illegal, it may pass such order in relation to the case as it deems fit and every such order shall be final. S.89 deals with Appeals. S.89 does not provide for an appeal against an order passed by the statutory authority on timings. Undoubtedly, a revision would lie against such an order. Every person who is adversely affected by the order on timings is entitled to approach the Tribunal. S.89 deals with Appeals. S.89 does not provide for an appeal against an order passed by the statutory authority on timings. Undoubtedly, a revision would lie against such an order. Every person who is adversely affected by the order on timings is entitled to approach the Tribunal. He may be an applicant for a permit who is granted a permit with timings which he is challenging, or he may be an existing operator who is able to show that the operation of his stage carriage will be adversely affected by the timings so granted or whose timings are altered. If an operator can file a revision against the order on timings for a service on a new permit, there is no justification to hold that he cannot represent his case in that regard at the earlier stage where the Statutory Authority approves or modifies the timings suggested in an application for permit. 7. It maybe useful to examine Rules 123 and 21.2 of the Kerala Motor Vehicles Rules, 1989, in the light of the above provisions. Rule 123 deals with Meetings of Regional Transport Authority. Sub-rule (1) slates that a Regional Transport Authority may meet once a month on such date, lime and place as may be fixed by the Chairman, and also on such other necessary occasions as may be determined by the Chairman for the dispatch of business. Sub-rule (2) states: "Adequate notice of such meetings and of the business to be transacted thereat shall be given for the information of such persons who, in the opinion of the Regional Transport Authority or of its Secretary, may reasonably have a claim to he permitted to attend the meeting for the purpose of making representations". It is not necessary for us to consider exhaustively the various categories of operators to whom notice is necessary. We art: only concerned with grant of approval to or modification of timings staled in an application. In a meeting which is to take up an application for permit, operators who may be affected by the suggested timings or by proposed modifications of timings have locus standi to appear and make representations. The Regional Transport Authority will have to regard such operators as having a reasonable claim to be permitted to attend the meeting for the purpose of making representations. Such persons, according to Rule 123 are entitled to notice. The Regional Transport Authority will have to regard such operators as having a reasonable claim to be permitted to attend the meeting for the purpose of making representations. Such persons, according to Rule 123 are entitled to notice. The expression 'notice' occurring in Rule 123 (2) may have different connotations depending on facts and circumstances. It may not be practicable for the Authority to find out all the operators who may have a reasonable claim to be permitted to attend the meeting; it would be sufficient for the Authority to issue a general notice by publication of notice in the office of the Authority, and to issue individual notice to the person in regard to whose stage carriage the timing dispute has arisen, and the person who has filed a representation against the proposed timings. We therefore hold that existing operators, who may be adversely affected by the timings given in an application for a permit or timings which may possibly be modified, have a right to have an opportunity of making a representation before a decision is taken under S.72(1). This right is available also in a proceeding before the delegated authority, namely, Secretary, Regional Transport Authority. 8. Rule 212 deals with schedule of timings. It reads thus: "(1.) The State or Regional Transport I Authority may from time to time. (a) by a general order prescribe a schedule of timings for stage carriages other than those belonging to Slate 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 I he 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". 9. 9. Sub-rule (1) of Rule 212 contemplates two types of orders prescribing schedule of timings; one is general type of order, and the other is a special type of order prescribing schedule of timings for each stage carriage, of course other than those belonging to the State Transport undertakings. These orders may be passed from time to time. Sub-rule (3) deals with delegation of the authority to the Secretary. According to the proviso, the authority shall not however vary the timings of a service without giving to the interested permit holders an opportunity to represent their case. According to the learned single judge the proviso docs not relate to the stage of considering the time table attached to an application for permit. We have already held at the stage of considering the timings attached to an application for permit, excising operators whose service is likely to be affected adversely arc entitled to an opportunity of making representation. For that purpose it is unnecessary to have recourse to Rule 212. We agree that Rule 212 docs not deal with the earlier stage contemplated in S.72(1). 10. Learned Judge also held that proviso requires an opportunity to represent his case being given only to an operator the trimmings given tow homage sought to be varied. Rule 212 deals with general orders or special orders issued from time to time. Necessarily they deal with variations made or sought to be made in regard to timings of any stage carriage. It would be useful to examine the language of the proviso to Rule 212(3) carefully. It reads: " shall not however vary the timings of a service without giving to the interested permit holders an opportunity to represent their case". (emphasis supplied) The language docs not spell out the conclusion that only the person, the timings of whose stage carriage arc sought to be varied is entitled to an opportunity to represent his case. All interested permit holders are entitled to an opportunity to represent their case, whenever the timings of "a service" are sought to be varied. The right is not confined only to the operator the timings of whose stage carriage is to be varied. The right is also available to other permit holders, who may have a real and substantial interest in the timings of a service. However, personal notice to all such permit holders would not be practicable. The right is not confined only to the operator the timings of whose stage carriage is to be varied. The right is also available to other permit holders, who may have a real and substantial interest in the timings of a service. However, personal notice to all such permit holders would not be practicable. It is sufficient if a notice is published in the notice board of the Office of the authority, though individual notice will have to go to the owner of the stage carriage the timings of whose service are sought to be varied and the owner of the state carriage at whose instance variation is sought to be made. In the light of the above discussion, we reverse the impugned judgment. We allow the O.P. and quash Ext. P7. The first respondent is directed to consider the representation given by the appellant in regard to Ext. P5 timings and pass orders in accordance with law. Writ appeal is thus allowed. In the circumstances, there will be no order as to costs.