High Court Kerala High Court

L.Radhika vs The Regional Transport Authority on 19 January, 2009

Kerala High Court
L.Radhika vs The Regional Transport Authority on 19 January, 2009
       

  

  

 
 
  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.
                         ==============
                    W.P.(C) NO. 34902 OF 2008 (E)
                    ====================

               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.

WPC 34902/08
:2 :

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
:3 :

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
:4 :

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
:5 :

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