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2000 DIGILAW 13 (KER)

Ushakumari v. Abdul Azeez

2000-01-05

A.R.LAKSHMANAN, D.SREEDEVI

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JUDGMENT A.R. Lakshmanan, J. 1. This appeal is directed against the judgment of a learned single Judge in O. P. 22830/98 dated 9-2-1999. Respondent No.1 in the Original Petition is the appellant herein. She submitted an application for grant of a regular permit to operate on Kozhikode city route Moozhikkal city stop under the provisions of the Kerala Motor Vehicles Act, 1988. The appellant's application for grant of a regular permit was considered by the Regional Transport Authority, Kozhikode as per Ext. P2 and the same was rejected. In the said order it is stated that no vehicle is offered and that the route is saturated and overlapped the nationalised route. It is further stated that the grant of permit will cause unhealthy competition and danger to public life and is not in conformity with S.91 of the Motor Vehicles Act. Against the order of the second respondent, the appellant filed a statutory appeal before the State Transport Appellate Tribunal as M. V. A. A. 288/98. The Tribunal called for the records of the case from the second respondent and perused the same. The Tribunal, under Ext. P6 order allowed the appeal and directed the Regional Transport Authority, Kozhikode to grant regular permit to the appellant as prayed for. Aggrieved against Ext. P6, first respondent has filed the present Original Petition. The main grievance of the first respondent as mentioned in para.4 of the Original Petition is as follows: "If the time is settled without hearing the petitioner that would harvestly affect the interests of the petitioner. Hence the petitioner wanted to get himself impleaded as a party in Ext. P3 appeal." Thus it is seen that the first respondent has attacked Ext. P6 order that the Tribunal did not consider the question regarding the vehicle. In the Original Petition the appellant filed a detailed counter affidavit pointing out that the Original Petition itself is not maintainable and that the first respondent has no locus standi to challenge Ext. P6 on any reason. It was also submitted that the timing in respect of the service is not so far fixed and the same can be settled after hearing the first respondent also and that the Original Petition itself is virtually premature. 2. The learned single Judge, by the impugned judgment quashed Ext. P6 and remanded the case to the Tribunal observing that Ext. It was also submitted that the timing in respect of the service is not so far fixed and the same can be settled after hearing the first respondent also and that the Original Petition itself is virtually premature. 2. The learned single Judge, by the impugned judgment quashed Ext. P6 and remanded the case to the Tribunal observing that Ext. P2 contains sufficient reasons to reject a permit and the Tribunal should have adverted to each and every aspects of the grounds stated in Ext. P2. It is also observed that oversaturation and competition will affect certainly the public life. 3. According to the learned counsel for appellants none of the findings of the Tribunal was under challenge in the Original Petition and they were not at all the subject matter for consideration. Moreover, after perusing the records and taking into consideration all relevant aspects, the tribunal passed Ext. P6 judgment. It is also submitted that the learned single Judge has not appreciated the real facts and well settled position of this court and also of the Hon'ble Supreme Court, while rendering the impugned judgment. 4. The Writ Appeal was admitted and this court granted stay of pronouncing the judgment in M. V. A. A. 288/98 by the State Transport Appellate Tribunal, Ernakulam, if the same was not pronounced as on 18-6-1999. In this appeal respondent No.1 has filed a detailed counter affidavit reiterating the contentions raised in the Original Petition. Along with the appeal, the appellant has also filed Annexure Al, which is the explanatory note of the notification issued by the Government of Kerala dated 18-2-1993. Per contra, learned counsel for the first respondent raised five contentions before us. According to the first respondent, the existing operators have no right to object the grant of a permit. It is further submitted that the time cannot be settled without hearing the first respondent and if the time is settled without giving an opportunity to the first respondent/petitioner, that will adversely affect the interests of the first respondent. It is further submitted that the applicant cannot be granted a permit unless she is ready with the vehicle. It is also submitted in the counter affidavit filed by the first respondent in the Writ Appeal that the appellant has fraudulently incorporated certain data in the application which she had filed for the regular permit. On the other hand Mr. It is further submitted that the applicant cannot be granted a permit unless she is ready with the vehicle. It is also submitted in the counter affidavit filed by the first respondent in the Writ Appeal that the appellant has fraudulently incorporated certain data in the application which she had filed for the regular permit. On the other hand Mr. Gopinathan Nair submitted that the Original Petition itself is not maintainable on law or on facts. 5. According to the first respondent, he claims to be an existing operator. The right of an existing operator to object the grant of a permit in favour of another person under the provisions of the Motor Vehicles Act, 1988 has been taken away and his right is only confined to the objections regarding timings. This position has been already considered by the Hon'ble Supreme Court in Mithilesh Garg and others v. Union of India and others 1992 (1) KLJ 247. A Division Bench of this court in Girija Devi v. K. T. Mathew 1991 (1) KLT 353 and The Secretary, Changanacherry T.R.B.T. Co. Coop. Society Ltd. v. Mathew Job and others 1992 (1) KLJ 262 held that the existing perators have no right to object the grant of a permit and their right is only confined to the objection regarding timings to be assigned for a new service. Therefore it is useful to extract the relevant passage from the above judgment: "The right of existing operators to file objections and the provisions to impose limit on the number of operators have been taken away. There is no similar provision to that of S.47 and S.57 under the Act. The statement of objects and reasons the Act shows that the purpose of bringing in the Act was to liberalise the grant of permits. S.71(1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. There is no provision under the Act like that of S.47(3) of the old Act and as such no limit for the grant of permits can be fixed under the Act. There is no provision under the Act like that of S.47(3) of the old Act and as such no limit for the grant of permits can be fixed under the Act. There is, however, a provision under S.71(3)(a) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within town having population of more than five lakhs." The Hon'ble Supreme Court further observed that: "There should be plenty of operators on every route to provide ample choice to the commuter public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of the weaker section of the profession, is without any basis." The Division Bench of this court in 1991 (1) KLT 353 , while considering the powers of the Regional Transport Authority held thus: "Under the Motor Vehicles Act, 1988, no right as such for objecting to the grant of stage carriage permit has been granted. It is in this background that the appellant's counsel contends, that the question of impleading the first respondent in the appeal before the State Transport Appellate Tribunal does not rise. Hence, it is submitted, that the learned single Judge was not justified in interfering with the decision of the Tribunal, solely on the ground that the first respondent was not impleaded as a party in the appeal. What is more fundamental error committed by the Regional Transport is in granting the permit to the appellant varying the route in respect of which he had applied for the grant of stage carriage permit. The route so varied as to ensure that the service of the appellant does not, in any way, overlap the sector on which the first respondent has been operating, as noted earlier." It is further held that: "The question of hearing the first respondent in the situation like this would not arise under any circumstances. The route so varied as to ensure that the service of the appellant does not, in any way, overlap the sector on which the first respondent has been operating, as noted earlier." It is further held that: "The question of hearing the first respondent in the situation like this would not arise under any circumstances. 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 all parties will have a right to place their respective cases before the Secretary of the Regional Transport Authority before finally assigning timings. We have, therefore, no hesitation in taking the view that interference with the decision of the Tribunal was not justified, for the reasons above stated". Following the above decision, a Division Bench of this court in 1992 (1) KLJ held that: "Existing operators have no right to object to the grant of a permit to another operator only right is to make a representation before a decision is taken as to the timings." 6. From the above rulings, it is clearly seen that the existing operator has no right to object the grant of a permit and his grievance can only be in respect of timings which can be agitated before the Secretary, Regional Transport Authority at the appropriate stage. Therefore, this submission made by the learned counsel for the first respondent at this point fail. Respondent No.1 submitted that at the time of considering the application, the appellant has not offered any vehicle. It is important to note that the first respondent's contention is not sustainable. The Tribunal, after perusing the records and considering the factual positions, allowed the appeal and directed the second respondent to grant regular permit to the appellant. This apart, the permit is yet to be granted by the second respondent. In the meantime first respondent filed the above Original Petition challenging Ext. P6. As already noticed, the first respondent has raised only the question of settlement of timings in the Original Petition. It is submitted by the counsel for appellants that the vehicle was under the process of transfer and it is enough that while granting the permit by the second respondent, the vehicle must be ready. P6. As already noticed, the first respondent has raised only the question of settlement of timings in the Original Petition. It is submitted by the counsel for appellants that the vehicle was under the process of transfer and it is enough that while granting the permit by the second respondent, the vehicle must be ready. In the instant case, it is stated in the Writ Appeal that the vehicle KLZ 8010 has already been transferred in the name of the appellant and the permit is also yet to be granted. In this case the appellant has submitted an application for grant of a regular permit under the provisions of the Motor Vehicles Act. As per R.159 of the Kerala Motor Vehicles Rules, it is only necessary to produce the current records within the statutory period of 30 days from the date of grant of permit or upto four months which the authority may allow by extending the same. Therefore, it is not mandatory on the part of the applicant to produce the records at the time of consideration. This legal position has already been considered by this court in the Full Bench decision reported in Narayanan v. RTA, Trichur, 1980 KLT 249 . In this case the appellant has already procured the vehicle and the vehicle has been already transferred in her name which was also produced along with the counter affidavit. Therefore the ground on which the petitioner attacked Ext. P6 in the original petition is not maintainable or sustainable. Another important feature which this court has failed to notice is that the route in question is a city route. The request of the appellant was to grant permit on a city route. The second respondent in a most irresponsible manner only with a view to reject the application merely stated a vague statement that the route is saturated. It is important to note that there is a notification issued under S.71(3) of the Motor Vehicles Act by the Government fixing the number of permits in Kozhikode city as 1150 out of which 50 permits are reserved for State Transport undertaking and the balance to be allotted to private operators as 1100. Therefore only less than 500 permits are granted by the second respondent and about 600 vacancies are still existing. Therefore only less than 500 permits are granted by the second respondent and about 600 vacancies are still existing. This notification is issued taking into consideration the population, number of vehicles, condition of road, necessity of stage carriage operation and all other relevant aspects. When the Government, after taking into consideration all these aspects with the consent of the Central Government issued such a notification finding that there must be 1150 permits, it is absolutely improper and arbitrary on the part of the 2nd respondent to deny the same. The order passed by the 2nd respondent is without any justification. Similarly, the nationalisation scheme is not at all applicable for city permits and, therefore, the reasoning of the second respondent in rejecting the application was patently illegal. 7. Learned counsel for the first respondent stated in the counter affidavit filed in the writ appeal that the appellant has fraudulently incorporated certain data in the application which she had filed for the regular permit. We summoned the original records from the second respondent as well as from the Tribunal. We have perused the entire records. We do not find any material alteration as alleged by the learned counsel for the respondent. Learned counsel for the first respondent was also allowed to peruse the records in court and he could not also find any material alteration or interpolation as alleged in the counter affidavit. Therefore this contention also fails. 8. Ext. R1(a), which is a photostat copy of the relevant page of the registration certificate is produced along with the counter affidavit in the Original Petition and marked as such. Therefore, the contention of the first respondent that the appellant has not mentioned the vehicle number in the application is also not correct. By Ext. P6 judgment the Tribunal has directed the second respondent to reconsider and grant the permit. In our opinion, no such direction is necessary in the light of the discussions made in the earlier part of this judgment. The entire grounds raised by the first respondent/petitioner is absolutely without any merits. We therefore, allow the appeal and dismiss the Original Petition. The judgment of the learned single Judge is set aside and appeal sands allowed. However there will be no order as to costs. The entire grounds raised by the first respondent/petitioner is absolutely without any merits. We therefore, allow the appeal and dismiss the Original Petition. The judgment of the learned single Judge is set aside and appeal sands allowed. However there will be no order as to costs. We make it clear that the second respondent before fixing the timings will also hear the objections from the first respondent and then fix the timings.