IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34902 of 2008(E)
1. L.RADHIKA, 18/1700, K.R.R.A.NO.182,
... Petitioner
Vs
1. THE REGIONAL TRANSPORT AUTHORITY,
... Respondent
2. SRI.N.S.PRADEEP, VAZHUVELI TIMBERS,
For Petitioner :SRI.A.INEES
For Respondent :SRI.K.V.GOPINATHAN NAIR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :19/01/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 34902 OF 2008 (E)
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Dated this the 19th day of January, 2009
J U D G M E N T
The prayer in this writ petition is to quash Ext.P7, a judgment
rendered by the State Transport Appellate Tribunal in MVAA 832/07.
Petitioner contends that in the route Pongumoodu-Neeramankara, there
arose vacancy of a regular permit. According to her, in Ext.P1 guidelines
framed in 1994 in the matter of grant of regular permits in Trivandrum
city, which was upheld by this Court in OP 18144/96 and confirmed in WA
1865/96, has laid down the norms which are to be followed by the RTA in
the grant of permits in the city route. It is stated that although Ext.P1 is
of 1994, this has been followed in the subsequent occasions also, as is
seen from Exts. P2 and P3.
2. Petitioner submits that despite this position, the 2nd
respondent made an application for regular permit in the route mentioned
above. Ext.P4 is an objection that was filed by a rival aspirant. By Ext.P5
proceedings, the RTA rejected the application of the 2nd respondent and
the reason stated is as follows:
This is a fresh permit. As per notification No.12951/07 dt
9.5.2007 new permit can only be granted to KSRTC on the
notified area. Hence rejected.
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3. It is stated that aggrieved by Ext.P5, the 2nd respondent filed
Ext.P6 appeal before the Tribunal, which was allowed as per Ext.P7. The
relevant portion of the order reads as under.
In so far as, the route applied for by the appellant
is from out of those 100 city permits. There is no
justification to deny regular permit on the ground of
scheme violation or on the basis of the draft notification
dated 9.5.2007. Int hat view of the matter, I find that
the impugned order refusing the regular permit is illegal
and hence liable to be set aside.
In the result, this appeal is allowed. Setting aside
the impugned order,the 1st respondent is directed to
grant regular permit to the appellant as sought for by
him, subject to settlement of timings.
4. Petitioner submits that if at all the Tribunal is to allow the
appeal, the Tribunal could have only remanded the matter for fresh
consideration, dealing with the merits of the application made by the 2nd
respondent and that the Tribunal could not have assumed the role of the
RTA against the mandate contained in Rule 20 of the STAT Rules. Counsel
also placed reliance on the judgment of this Court in WP(C) No.34437/03
in relation to the city permits in Kochi city and contended that if any fresh
permit is to be granted, the same should be notified and applications
invited and considered.
5. Yet another contention raised was that the grant of permit in
the city routes can only be in terms of Ext.P1 and that in terms of Ext.P1,
WPC 34902/08
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the 2nd respondent is an ineligible candidate.
6. Counter affidavit has been filed by the 2nd respondent. In the
counter affidavit, it is contended by the 2nd respondent that in the route
mentioned above, a regular permit was granted by the RTA and that the
operator had defaulted service. It is stated that in the default vacancy,
the 2nd respondent applied for temporary permit and Ext.R2(a) is the first
temporary permit that was granted to him w.e.f. 20/5/2003. It is stated
that since then he has been continuously operating in the route on
temporary permits.
7. In the meanwhile, regular permit granted has expired and that
the operator did not apply for its renewal. It is stated that during all this
period, none other than him, had applied for permit either temporary or
regular in the route in question and therefore he was being issued
temporary permits successively.
8. When he made application for regular permit, that was
considered by the RTA on 20th of March, 2007 and there was no objection.
It is is stated that the proceedings were adjourned to the next meeting and
the matter came up for consideration before the RTA again on 19/9/2007.
According to the 2nd respondent, at no point of time, petitioner made any
application for temporary permit or regular permit or even raised any
WPC 34902/08
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objection against granting the permit to the 2nd respondent.
9. It is stated that despite all this, the RTA by Ext.P5 rejected the
application on the ground that the route in question was covered by the
draft notification dated 9/5/2007. It is stated that aggrieved by Ext.P5, he
filed a statutory appeal before the Tribunal impleading the KSRTC also as a
respondent. The appeal was heard and the Tribunal allowed the appeal
as per Ext.P7 and rejected the grant in favour of the 2nd respondent. It is
stated that there is absolutely no bonafides in the contentions raised.
10. On facts, it can therefore be seen that since 20/5/2003, the
2nd respondent has been operating on the route on the strength of
temporary permits. At no point of time has the petitioner made any
application either for regular permit or temporary permit. Even before the
RTA, when the application made by the 2nd respondent came up for
consideration in the meeting of 19/9/07, petitioner has no case that she
has raised any objection. On the other hand, she is relying on Ext.P4
objection field by yet another stranger.
11. A reading of Ext.P5 shows that the only reason on the basis of
which the RTA rejected the application of the 2nd respondent was that the
route in question was covered by the notification dated 9/5/2007.
Necessarily, therefore, in the appeal filed against Ext.P5, the Tribunal was
WPC 34902/08
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called upon to decide the correctness of the reason assigned by the RTA. A
reading of Ext.P7 shows that the Tribunal held that though notification in
question covers the route as well, since what was applied for by the 2nd
respondent was one out of the 100 city permits granted in 1994, the
notification is irrelevant. This conclusion by the STAT cannot be assailed.
Since the Tribunal overruled the only ground on which permit was
rejected, as a necessary consequence, Tribunal moulded relief by directing
grant of permit in favour of the 2nd respondent.
12. On facts, I do not think that this Court should exercise the
discretionary jurisdiction in a case like this where the petitioner was
nowhere in the picture until the writ petition is filed.
13. I am also not interested by the argument that Rule 20 of the
Tribunal Rules is attracted. A reading of the rule shows that the Tribunal is
prohibited from exercising the original power of the RTA. But then, here in
this case, Ext.P7 reflects the exercise of appellate power and that is not hit
by Rule 20.
I am not persuaded to interfere. Writ petition fails and is dismissed.
ANTONY DOMINIC, JUDGE
Rp