Research › Browse › Judgment

Kerala High Court · body

1991 DIGILAW 288 (KER)

Kunhikrishnan Nair v. RTO, Malappuram

1991-07-15

KRISHNAMOORTHY, U.L.BHAT

body1991
Judgment :- 1. Appellant herein is aggrieved by the dismissal of O.P.No.1862 of 1991 by the learned Single Judge. Hence this appeal. 2. Appellant is a holder of regular stage carriage permit on the route Kuttippuram-Ponnani. Subsequently he obtained an extension of the permit to cover Ponnani-Puthenpally route. Sometime thereafter he applied for further extension of the route Puthenpally to Kunnamkulam. This was challenged by an existing operator on the extended route before the State Transport Appellate Tribunal. who quashed the order of the Regional Transport Authority on the ground that the two extensions together would exceed the maximum distance of 24 KMs prescribed by S.80(3) of the Motor Vehicles Act. 1988. for short the "Act". Thereupon the appellant herein challenged this order by filing O.P.No.1862 of 1991. which has been dismissed. Hence this appeal. 3. S.80 of the Act relates to procedure in applying for and granting permits. Sub-section (3) of & 80 states that 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. etc.. shall be treated as an application for the grant of anew permit. The second proviso to sub-section (3) of S.80 separately deals with cases of variation. and cases of extension. The first clause of the second proviso states that in the case of variation. the termini shall not be altered. and the distance covered by the variation shall not exceed twenty-four kilometres. The second clause of the second proviso states that in the case of extension the distance covered by extension shall not exceed twenty-four kilometres from the termini. It is this provision which has been invoked in the present case. The proviso proceeds to state that 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. 4. The argument of the learned counsel for the appellant is that in the case of piece-meal extensions. as in the present case. the limit of twenty-four kilometres applies to each of the extensions. and not to all the extensions taken together. 4. The argument of the learned counsel for the appellant is that in the case of piece-meal extensions. as in the present case. the limit of twenty-four kilometres applies to each of the extensions. and not to all the extensions taken together. We are not able to agree. In the new Act several of the restrictions which had been imposed by the predecessor Act of 1938 have been removed. and the grant of permit has been liberalised. Nevertheless certain restrictions have been retained. one such being the restriction wise in the case of variation or extension. It must be taken that legislature deliberately retained this restriction in enacting the new Act. The distance covered by extension shall not exceed twenty-four kilometers from the termini. If the contention of the appellant is accepted. it may not be difficult for an existing operator to seek quite a large number of extensions. keeping care to see that each extension is within the limit of twenty-four kilometers. and thus run on a route which is totally different from the route for which original permit has been granted. Such cannot be the legislative intention. A careful examination of the language used in the second proviso to sub-section (3) of S.80 with reference to "extension". will only support this view. The law cannot be that by subterfuge an. existing operator is able to obtain extension for a considerably long route inspite of the restriction deliberately imposed by the Act. It is true. as rightly pointed out by the learned counsel for the appellant. that the grant of permit has been considerably liberalised under S.80. But the fact that the Legislature retained the provision regarding distance limitation for extension must be attached due significance. If the retention of the provision in the Act has any significance. it must be understood and interpreted in such a manner that the total extension cannot exceed twenty-four kilometres. The Tribunal. and the learned Single Judge. were right in taking the view against the appellant. 5. Learned counsel for the appellant submitted. relying on the decision of a Division Bench of this Court in Smt. N. Girija Devi v. K. T. Mathew and others. 1991 (1) KLT 353 =1990 (2) KLJ 887; and. Secretary. R. T A.. Guhtur v. E. Rama Rao. AIR 1991 AP. 11 (F.B.). 5. Learned counsel for the appellant submitted. relying on the decision of a Division Bench of this Court in Smt. N. Girija Devi v. K. T. Mathew and others. 1991 (1) KLT 353 =1990 (2) KLJ 887; and. Secretary. R. T A.. Guhtur v. E. Rama Rao. AIR 1991 AP. 11 (F.B.). that an existing operator cannot raise objection before the Regional Transport Authority against the proposed extension. and he has no locus standi to file revision before the Tribunal. and he has no right to be heard. and therefore the revision filed by him could not be sustained. Learned counsel for the appellant also brought to our attention the decision of this Court in Premkumar v.R.T.A.Trichur. (1991) 1KLT 745. 6. In Girija Dew's case. the applicant for a stage carriage permit was granted permit for a varied route. She herself filed a Revision before the STAT. who set aside the order of the Regional Transport Authority. and granted the application for the grant of the permit in respect of the route as prayed for. In the Writ Petition filed by the objector the learned Single Judge quashed the order of the State Transport Appellate Tribunal. and remitted the case to the Tribunal on the ground that the objector should have been impleaded as a party before a decision was taken. This is obviously because in the revision filed before the State Transport Appellate Tribunal by the grantee. the objector had not been impleaded. The Division Bench on a consideration of the proviso to S.72(l) came to the conclusion that the Regional Transport Authority had no jurisdiction to grant a permit'in respect of any route or area not specified in the application. It was in this light that the Division Bench observed: "The question of hearing the first respondent in a situation like this would not arise under any circumstances." The Division Bench indicated that on the facts of that case the only grievance he may make is about the timings and that has to be taken care of by the Secretary to the Regional Transport Authority to assign timings after holding a timing conference for that purpose. wherein the first respondent has a right to place his case regarding timings. wherein the first respondent has a right to place his case regarding timings. We do not understand the decision laying down a broad proposition that in no case an existing operator on the route in regard to which an extension or variation is sought has a right to be present and make representation at the Regional Transport Authority meeting. 7. In Secretary. R.T.A.Guntur v. E. Rama Rao. AIR 1991 A.P. 11 (F.B.) a Full Bench of the Andhra Pradesh High Court was dealing with more or less a similar case The Full Bench indicated that when the R.T.A. is dealing with new applications for grant of stage carriage permits. existing operators cannot claim any legal right to file representations or a right for being heard. According to the Full Bench: "It may however be open to them to send whatever representations they may like to send. as a matter of information. to the R.T.A. but this they cannot claim as of right. If any representations are so sent. it is open to the R.T.A. to consider them if there is anything relevant in the said representations. But the R.T.A. may or may not consider every such representation sent by the existing operators. Nor can the existing operators claim any legal right to be heard before the R.T.A. under any circumstances." We are afraid we are not able to agree with the above view. This view takes away the vigour and efficacy of R.132 of the A.P. Rules. which is in pari materia with R.123 of the Kerala Rules. which reads as follows: "Meetings of Regional Transport Authority - (1) A Regional Transport Authority may meet once a month on such date. time 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. (2) 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 be permitted to attend the meeting for the purpose of making representations." There is nothing in sub-rule (2) of R.123 to indicate that a restrictive meaning may be ascribed to the words "such persons. who in the opinion of the Regional Transport Authority or of its Secretary. may reasonably have a claim to be permitted to attend the meeting for the purpose of making representations." There is nothing in sub-rule (2) of R.123 to indicate that a restrictive meaning may be ascribed to the words "such persons. who in the opinion of the Regional Transport Authority or of its Secretary. may reasonably have a claim to be permitted to attend the meeting for the purpose of making representations". Varied may be the circumstances which the Regional Transport Authority may have to consider in regard to the grant of regular permit It cannot always be possible for the Secretary to the Regional Transport Authority or to the department to marshall all those circumstances before the R.T.A. If the existing operators are given an opportunity to make representations. they will certainly take the trouble of marshalling all the circumstances which may have a bearing on the ultimate decision of the R.T.A. We are not prepared to agree as suggested by teamed counsel for the appellant that the right of representation contemplated under R.123(2) must be restricted only in relation to timings. It must be possible for an existing operator to make effective representation regarding the circumstances which may have a bearing on the decision to be ultimately arrived at by the R.T.A 8. We are told that the judgment in Prem. Kumar's case is pending in appeal. and therefore. we do hot want to say anything about that decision. 9. In the view we have taken it must be held that the objecting existing operator has a right to make representation before the R.T.A. and consequently has a right to move the Tribunal in revision. 10. In the result. the Writ Appeal is dismissed. Dismissed.