IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 486 of 2010()
1. N.R.BABUDAS, S/O.RAMAN NAIR
... Petitioner
Vs
1. THE KERALA STATE ROAD TRANSPORT
... Respondent
2. THE STATE TRANSPORT APPELLATE TRIBUNAL
3. REGIONAL TRANSPORT AUTHORITY
4. THE SECRETARY,
For Petitioner :SRI.P.DEEPAK
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :01/10/2010
O R D E R
THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ.
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R.P. No. 486 of 2010 in W.A. 1270 of 2009 &
R.P. No.544 of 2010 in W.A. 1307 of 2009.
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Dated this the 1st day of October , 2010.
ORDER
Bhavadasan, J,
The petitioners in W.P.(C) No.28386 of 2008 and
W.P.(C) No. 29984 of 2008 seek review of the judgment in
W.A. No.1270 of 2009 and other connected cases, which
were disposed of on 1.12.2009.
2. The matter related to grant of permits under
Section 104 of the Motor Vehicles Act. A learned Single
Judge of this court had while disposing of a batch of writ
petitions raising similar contentions observed as follows:
“For these reasons, I am of the view that the
issue requires reconsideration by the Regional
Transport Authority. Accordingly, the writ petition
[W.P.(C) No.28386/08] is allowed in part. Exts.P5
and P9 are set aside. The application for re-issue
of Temporary Permits submitted by the petitioner
herein shall be considered by the Regional
Transport Authority, Ernakulam, in accordance
with law and in the light of the observations
R.P. 486 & 544/2010. 2
contained in this judgment, after notice to the
petitioners as well as the 4th respondent
Corporation. Fresh orders shall be passed within
one month from the date of receipt of a copy of
this judgment.”
Aggrieved by the judgment of the learned Single Judge, the
Kerala State Road Transport Corporation (hereinafter
referred to as KSRTC) came up in appeal before this court in
various Writ Appeals. Their main grievance was that the
routes, through which the petitioners sought temporary
permits were notified routes, they touched two intermediate
points and also that they fell within the Scheme. There was
a total prohibition, which prevented the authorities
concerned from issuing any sort of permit to anyone other
than KSRTC. This court, accepted the contention put
forward by the KSRTC and allowed the writ appeals setting
aside the judgment of the learned Single Judge and
dismissed the writ petitions.
3. In these review petitions, it is pointed out that
while the writ appeals were being considered, it was
R.P. 486 & 544/2010. 3
omitted to refer to the proviso to Section 104 of the Motor
Vehicles Act, which enables the authorities concerned to
grant temporary permits over notified routes till the State
Transport Corporation applies for permit over those routes.
It is pointed out that it is not in dispute that the routes
through which the writ petitioners seek permit are also
notified routes and also that there is no case for the KSRTC
that they had applied for permit for these routes. According
to the review petitioners, even if the route is a notified one,
and also the routes over which they seek permits pass
through two or more intermediate points, till the State
Transport Corporation applies, it is possible for the
authorities to grant temporary permits. The review
petitioners say that it is not disputed that currently the
State Transport Corporation has not applied for permits over
the routes, through which temporary permits are sought. It
is conceded that once the STC applies, the temporary
permits cease to be in force. The above aspect, according to
them, was not taken note of by the Division Bench of this
R.P. 486 & 544/2010. 4
court while pronouncing the judgment in the Writ Appeals,
and that is an error apparent on the face of the record. In
support of their contention that it may be possible to grant
temporary permits, they relied on the judgment in W.A. 188
of 1986 of this court and also the decision reported in
Punjab Roadways v. Punja Sahib Bus & Transport Co.
((2010) 5 SCC 235).
4. Learned counsel appearing for the KSRTC
contended that no error has been committed by this court in
allowing the writ appeals and dismissing the writ petitions.
The routes over which the petitioners seek temporary
permits admittedly touch two intermediate points and it is a
notified route. According to the learned counsel, along the
notified routes only the KSRTC can seek permit for plying the
vehicles. Therefore, it is contended that the review
petitions are without merits and they are liable to be
dismissed.
5. It is true that the proviso to Section 104 of the
Motor Vehicles Act is not referred to in the decision of the
R.P. 486 & 544/2010. 5
Division Bench in the writ appeals. The decision proceeds on
the basis that being a notified route, only the KSRTC is
entitled to seek permit and there is a total prohibition as per
the scheme.
6. Section 104 of the Motor Vehicles Act reads as
follows:
“104. Restriction on grant of permits in
respect of a notified area or notified route:-
Where a scheme has been published under
sub-section (3) of Section 100 in respect of any
notified area or notified route, the State Transport
Authority or the Regional Transport Authority, as
the case may be, shall not grant any permit
except in accordance with the provisions of the
scheme:
Provided that where no application for a
permit has been made by the State transport
undertaking in respect of any notified area or
notified route in pursuance of an approved
scheme, the State Transport Authority or the
Regional Transport Authority, as the case may be,
may grant temporary permit to any person in
respect of such notified area or notified route
R.P. 486 & 544/2010. 6
subject to the condition that such permit shall
cease to be effective on the issue of a permit to
the State transport undertaking in respect of that
area or route.”
Going by the proviso, it would appear that even if the route
is a notified one, it may be possible for the authorities
concerned, if they so feel, to consider whether temporary
permits could be granted as long as no application for
permit along those notified routes had been made by the
State Transport Corporation. The proviso also states that in
cases where such temporary permits are granted, they will
cease to have any effect as soon as permit is granted to the
State Transport Corporation.
7. In the decision in W.A. 188 of 1986 disposed of
by judgment dated 16.12.1986, it was mentioned as follows:
“For the reasons stated above, this
appeal is allowed, the judgment of the learned
Single Judge is set aside, the order of the State
Transport Appellate Tribunal and the Regional
Transport Authority are quashed and the
R.P. 486 & 544/2010. 7
application of the 2nd respondent for grant of a
pucca stage carriage permit is dismissed
reserving liberty in the 2nd respondent to invoke
the proviso to Section 68 FF of the Act and seek
grant of temporary permit. We also direct that
the 2nd respondent will be permitted to operate
the service for a period of two months from this
date on the relevant route in question.”
8. In the decision reported in Punjab
Roadways, case it is observed as follows:
“The above mentioned provision states
where a scheme has been published under
sub-section (3) of Section 100 in respect of any
notified area or notified route, the STA or the RTA
a the case may be, shall not grant any permit
except in accordance with the provisions of the
scheme. An exception has been carved out in the
proviso to Section 104 stating, where no
application for permit has been made by the STU
in respect of any notified area or notified route in
pursuance of an approved scheme, the STA or the
RTA, as the case may be, may grant temporary
permits to any person in respect of any such
notified route subject to the condition that such
R.P. 486 & 544/2010. 8
permit shall cease to be effective on the issue of
permit to the STU in respect of that area or route.
In our view, same is the situation in respect of a
case where an STU in spite of grant of permit does
not operate the service or surrenders the permit
granted or is not utilizing the permit. In such a
situation, it should be deemed that no application
for permit has been made by the STU and it is
open to the RTA to grant temporary permit if
there is a temporary need. By granting regular
permits to the private operators the RTA will be
upsetting the ratio fixed under the scheme which
is legally impermissible.
In Anwar Ahmed this Court had occasion to
examine the scope of the proviso to Section 104
and held as follows:
“7. It would, therefore, be seen that where
the scheme has been published under sub-section
(3) of Section 100 in respect of any notified area
or notified route, the State Transport Authority or
the Regional Transport Authority, as the case may
be, shall not grant any permit except in
accordance with the provisions of the scheme.
Thus, the appellant Corporation has the exclusive
right or monopoly to ply their stage carriages and
R.P. 486 & 544/2010. 9
obtain the required permit as per the scheme.
The proviso gives only a limited breath of life,
namely, until the Corporation puts the vehicles on
the notified routes as per the scheme, temporary
permits may be granted to private operators.
Thereby, it would be clear the temporary
inconvenience to travelling public is sought to be
averted till the permits are taken and vehicles
are put on the route by the appellant. Therefore,
the temporary permits will have only limited
breath of life. “
9. The apex court while rendering the above
decision has taken note of the hardship and inconvenience
that may be caused to the people due to the failure on the
part of the State Transport Corporation concerned to ply
vehicles through all the notified routes, though permit is
taken. There may be instances also where they may not
operate services in the route. Whatever that be, the fact
remains that the apex court has observed that even in the
notified routes, as long as the State Transport Corporation
R.P. 486 & 544/2010. 10
do not apply for permits, it is open to the authorities
concerned to consider if temporary permits can be issued.
10. There is no reason as to why the principle
laid down in the above decisions based on the proviso to
Section 104 of the Motor Vehicles Act should not be
accepted in these cases also.
Accordingly, these review petitions are allowed,
the common judgment in the writ appeals are set aside and
the judgment of the learned Single Judge is restored.
Thottathil B. Radhakrishnan,
Judge
P. Bhavadasan,
Judge
sb.