Ganesh N. Shetty vs Regional Transport Authority

Aravind Kumar, J.—Though writ petitions are listed in Preliminary Hearing in ''B'' Group, by consent of learned Advocates appearing for parties they are taken up for final disposal.

Heard Sri H.B. Nagaraja and Sri M.E. Nagesh, learned Advocates appearing for petitioners, Sri A.S. Parasara Kumar, learned Counsel appearing for respondent No. 2 and Sri Anantha H., learned High Court Government Pleader appearing for the State.

Petitioner is a holder of Stage Carriage Permit which is valid up to 26.11.2013 in respect of route from State Bank to Inoli and back via Kankanady, Thokkottu, Deralakatte, Konaje, Gramachavadi, etc. Second respondent is a holder of Stage Carriage Permit for the route State Bank to Thoudagoli and back via, Jyothi, Balmatta, Kankanady, Pumpwell for six round trips. Second respondent filed an application for grant of variation of route under Section 80(3) of the Motor Vehicles Act, 1988, by way of curtailment of route from Deralakatte via Kulya, Beeri and Madyar and for a deviation from Thokkottu to Deralakatte via Kuthaar, Yenapoya College, K.S. Hegde Hospital with revision of timings, which prayer was objected to by petitioners and after hearing the representatives appearing for respective parties, the Regional Transport Authority, Mangalore-first respondent by order dated 24.11.2012 rejected the prayer of second respondent for variation in the existing route.

Being aggrieved by this order, second respondent preferred an appeal before Appellate Tribunal in Appeal No. 1966 of 2012 under Section 89 of the Motor Vehicles Act, 1988. Appellate Authority by impugned order dated 22.6.2013 - Annexure-B allowed the appeal, set aside the order dated 20.10.2012 - Annexure-A and granted the prayer sought for by second respondent herein namely variation of condition in Permit No. 233/DK/1998-99 and second "respondent herein was permitted to operate in the revised route from Thokkottu to Derlakatte via Kuttar, Yenopoya College, K.S. Hegde Hospital by way of extension curtailing the via route of Kolya, Beeri, Madya from Thokkottu to Derlakatte. Said order is impugned in this writ petition.

It is the contention of learned Advocates appearing for petitioners that impugned order passed is in violation of principles of natural justice and Appellate Tribunal ought to have issued notice to petitioners or persons who are likely to be affected by grant of such variation. On account of such an exercise having not been undertaken by Appellate Tribunal it has resulted in violation of principles of natural justice and impugned order is contrary to Section 80(3) of the Motor Vehicles Act, 1988. They would elaborate their submissions by contending that Original Authority while examining the claim of second respondent had considered the representations submitted by the Village Panchayaths to reject the prayer of second respondent and this aspect has not been dealt with by the Appellate Tribunal and as such, it has resulted in an erroneous order being passed. It is also contended that maximum limit of variation permit being 24 kms. and the aggregate permit being the same, Tribunal before granting such variation ought to have verified whether there is any earlier variation granted to second respondent-permit holder and on account of such non-examination of factual aspect by Appellate Tribunal, it has resulted in impugned order being passed erroneously. On these grounds they seek for setting aside the impugned order.

Per contra, Sri A.S. Parasara Kumar, learned Counsel appearing for respondent No. 2 supporting the impugned order would contend that Karnataka Motor Vehicles Rules, 1999 enables the aggrieved person to appear before the Tribunal namely Rule 90 and present petitioners having not filed an application for getting themselves impleaded are precluded from contending that on account of variation granted to second respondent they Would be aggrieved persons. He would further elaborate his submission by contending that Appellate Tribunal while accepting the prayer of second respondent and permitting the variation had also directed the jurisdictional Secretary to assign timings to the grant made to appellant therein i.e., second respondent herein and after hearing the existing sector operators, which includes the petitioners, the Secretary, RTA, Dakshina Kannada, Mangalore had fixed the timings to route operators and as such, there is no prejudice caused to petitioners.

He would also draw the attention of the Court to order passed by the Revisional Authority rejecting the revision petitions filed by route operators who had questioned timings allotted to second respondent and contends thereby issue of variation of route itself has reached finality and it is no more an issue required to be agitated or adjudicated. Hence, he prays for rejection of writ petitions.

Having heard the learned Advocates appearing for parties and on perusal of records it would indicate that second respondent herein had obtained a permit bearing No. 233/DK/1998-99 and was operating on the route Thokkottu to Deralakatte via Kolya, Beeri and Madya and sought for variation of route as Thokkottu to Derlakatte via Kutthar, Yenopoya College, K.S. Hegde Hospital instead via Kolya, Beeri, Madyar. This application filed before the first respondent was resisted to by writ petitioners and after considering the report of Village Panchayath and also the resultant effect of it to the residents of Madya, Beeri and Kolya, first respondent by order dated 20.10.2012 - Annexure-A rejected the application of second respondent.

Being aggrieved by this rejection order an appeal came to be filed before Appellate Tribunal in Appeal No. 1966 of 2012 under Section 89 of the Motor Vehicles Act, 1999. Appellate Tribunal by impugned order dated 22.6.2013 - Annexure-B, allowed the appeal and granted the prayer of second respondent herein as already noticed here in above.

In view of the fact that petitioners herein being existing route operators having assailed the impugned order as one passed in violation of principles of natural justice namely without hearing them on the ground they had objected it. But on the other hand, second respondent would support the impugned order and contending that it is not in violation of principles of natural justice by relying upon Rule 90 of the Karnataka Motor Vehicles Rules, 1999. Hence, it would be appropriate to extract said Rule and it reads as under:

"90. Procedure in appeal or revision.

-(1) After the State Transport Appellate Tribunal had admitted an appeal under Section 90, it shall appoint time and place for the hearing of the appeal or revision application, as the case may be, give an intimation to the authority against whose order the appeal or revision application is made and also to the appellate or applicant concerned and any other person likely to be effected by the grant of the relief prayed for, such appellant, respondent or the person interested shall appear before the Tribunal in person or through an authorised representative with original documents or records pertaining to the case on the appointed date and place of the hearing, if any.

(2)xxxx

(3)xxxx

(emphasis supplied)

4 bare reading of sub-rule (1) of Rule 90 would clearly indicate that Appellate Tribunal when it admits an appeal under Section 90 it is required to fix the date and time of hearing of the appeal and it is required to intimate the Authority against whose order the appeal or revision application has been filed and also to the appellant or applicant concerned and any other persons likely to be effected by the grant of relief prayed for in the appeal. This provision would clearly indicate that in order to ensure that either existing beneficiaries of the route who are likely to be affected by any variation that may be made by Appellate Authority or persons likely to be affected by such variation are required to be notified and also the persons who are operating in the said route by holding a valid permit, since such variation may likely affect their right also.

A perusal of impugned order does not even remotely suggest about any such notice having been issued to the persons who were likely to be affected by the order of variation of the route or any notice having been issued to the petitioners who had undisputedly objected before the first respondent. In that view of the matter, the only irresistible conclusion which has to he arrived is that impugned order has been passed in contravention of sub-rule (1) of Rule 90 anti it is in violation of principles of natural justice.

At the same time, this Court cannot lose sight of the fact that pursuant to order permitting variation of route in favour of second respondent herein, route timings have also been fixed and challenge to allocation of timings has also resulted in Revision Petition No. 1639 of 2013 and Appeal No. 1942 of 2013 being dismissed as per Annexures-R6 and R7 respectively. Thereby second respondent has been operating the route as per variation route permitted by the Appellate Tribunal. Thus, ends of justice would be met if second respondent is permitted to continue to operate in the variation route granted by Appellate Tribunal till the matter is adjudicated by Tribunal afresh, impugned order dated 22.6.2013 is being set aside and matter is being remitted back to Tribunal for adjudication afresh. It is also made clear that second respondent herein shall continue to operate in the said route for a Period of eight (8) weeks from the date of hearing within which period Tribunal shall dispose of the appeal after hearing the writ petitioners and second respondent herein. It is made clear that petitioners will not be issued With any fresh notice by the Appellate Tribunal and they shall appear before he Appellate Tribunal on 13.6.2016 at 11.30 a.m. without waiting for final notice.

For the reasons stated here in above, writ petitions stand disposed of ordered accordingly.

Sri Anantha H., learned High Court Government Pleader is permitted to file a memo of appearance within a period of four (4) weeks from today.