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V.G. Sabhahit, JJ.—Writ Appeal Nos.4052-54/2004 are filed by the petitioner in W.P.Nos.8807-8809/2001 being aggrieved by the order dated 6-8-2004 wherein the learned Single Judge of this Court has dismissed the writ petitions declining to interfere with the common order passed by the Karnataka State Transport Appellate Tribunal, Bangalore (hereinafter called the ''KSTAT) in R.P.Nos.828/1999, 1056/1999 & 1467/1999 dated 31-5-2000 vide Annexure-E to the writ petitions.
Writ Appeal No.2633/2004 is filed by the petitioner in W.P.No.44994/2002 wherein the learned Single Judge of this Court, by order dated 4-3-2004 has declined to interfere with the order passed by the KSTAT in Appeal Nos. 115, 116 & 119/2002 and R.P.Nos. 158/2002 & 186/2002 dated 29-8-2002.
W.P.No.48446/2004 is filed under Articles 226 & 227 of the Constitution of India, being aggrieved by the order passed by the KSTAT dated 30-10-2004 in Appeal Nos. 123/2002 & 124/2002 wherein the KSTAT has set
aside the resolution of the Karnataka State Transport Authority granting modification of the permit as sought for.
Similarly, W.P.Nos.49336/2004 and 48419/2004 are also filed by the petitioners being aggrieved by the order of the KSTAT dated 30-10-2004 in Appeal Nos. 1269/2001. 127 & 130/2002. 128/2002, 1114/2000, 594/2004, 1113/2004, 125/2002, 126/2002, 129/2002, 133/2002, 1247/2001, 131/2002 & 27/2002 respectively wherein the Tribunal has set aside the resolution of the Karnataka State Transport Authority granting modification of the permit as sought for.
For the purpose of narrating the facts, we reiterate the facts as averred in W.A.Nos.4052-54/2004 with reference to the rank of the parties in W.P.Nos.8807-8809/2001.
It is the case of the petitioner in the said cases that the petitioner was granted Stage Carriage Permit in the year 1958 and is saved operator under the Kolar Pocket Scheme . After coming into force of the Motor Vehicles Act. 1988, he made an application for grant of permit and permit has been granted as saved operator. The relevant portion of the Kolar Pocket Scheme to the exclusion of the private operators reads as follows:
(d) Whether the service are to be operated by the State Transport undertaking the complete exclusion or partial of other persons or otherwise. The State Transport Undertaking will operate the services on all routes to the complete exclusion of the other persons except the following.
(a) Operation of serves on interstate routes by the State Road Transport Corporation of Other States established under the Road Transport Corporation Act, 1958 (Central Act under the Companies Act 1956 (Central Act 1 of 1956):
(b) XXX The operation of services by the permit holders who have already been granted permits by the Transport Authorities on the date of publication of the modified scheme on interstate agreement entered into by the Government of any other State provided that the operator on each route shall not be entitled to pickup and set down passengers in such portion of the routes such overlaps on any portions of the Notification.
During the pendency of the petition, the scheme was again modified by notification dated 7-11-2003 which had been set aside by us in a separate order passed today in W.P. No. 6616/2008 and connected matters wherein modification of the scheme was challenged by the KSRTC.
The Petitioner made an application for deviation of the permit which he was holding i.e. from Doddabaliapur to Bangalore via Hesaraghatta. Dasarahalli and Jalahalli to Doddabaliapur to Bangalore via Rajanakunte. Yelahanka and Hebbal which is notified route as per the Kolar Pocket Scheme. The Karnataka State Transport Authority granted variation. Being aggrieved by the same, KSRTC and others preferred revision petitions before the KSTAT and the KSTAT by order dated 31-5-2000 allowed the revision petitions and set aside the order of variation of the permit granted by the Karnataka State Transport Authority permitting variation of the route from Doddabaliapur to Bangalore via Hesaraghatta, Dasarahalli and Jalahalli to Doddabaliapur to Bangalore via Rajanakunte, Yelahanka and Hebbal. Being aggrieved, Petitioner had filed the writ petitions Nos. 8807-8809/2001.
It was contended by the Petitioner that he was granted permit in the year 1958 and there was no prohibition for the Karnataka State Transport Authority to grant deviation from non-monopoly route to monopoly route and the revision petitions filed by the contesting Respondents are not maintainable as the said order was appeallable. He further submitted that the order passed in the earlier proceedings is not binding upon the Petitioner and the same would not amount to resjudicata and variation granted is not contrary to Section 80(3) of the Motor Vehicles Act, 1988 and if there is any violation, matter is to be remanded for fresh consideration in view of the Kolar Pocket Scheme by notification dated 7-11-2003.
The petitions were resisted by the Respondents contending that Petitioner is a saved operator and his permit was subject to the same terms and conditions which had been granted in the same route which was saved under the Kolar pocket scheme and the same could not have been varied so as to enable plying of the vehicle only in the notified route and therefore, variation could not be granted. It was also contended that the order passed by the Karnataka State Transport Authority was illegal and contrary to the decision of the Supreme Court wherein it has been stated that status of saved operators would be subject to the same terms and conditions upon which permit had been granted and saved under the scheme and are not entitled to any more right as right cannot be anything more or less. It was also contended that an application for variation had been filed by predecessor in interest and the same was rejected and the same was confirmed in R.P. No. 717/1994 and therefore the Karnataka State Transport Authority could not have granted variation of the permit.
The learned Single Judge after hearing the counsel appearing for the parties and other material on record, held that deviation granted by Karnataka State Transport Authority from non-monopoly route to monopoly route for saved operator is not permissible in law; that the proceedings initiated by the Petitioner seeking variation of the permit is barred by the principles of resjudicata; that revision is maintainable though it is appealable order; and the variation granted by Karnataka State Transport Authority is contrary to Sub-section (3) of Section 80 of the Motor Vehicles Act as the extent of deviation is more than prescribed limit of 24 kms and the matter need not be remanded. Being aggrieved by the said order dated 6-8-2004, these writ appeals are filed.
The question of law that arises for our consideration is "whether the deviation granted by the Karnataka State Transport Authority from non-monopoly route to monopoly route to a saved operator is permissible in law?"
We have heard the learned Counsel appearing for the Appellants and the learned Counsel appearing for the Respondents.
The learned Counsel appearing for the Appellants submitted that since a new permit has been obtained after the formation of the Kolar Pocket Scheme in the year 1968 and the Appellant was admittedly a saved operator, the variation of permit was permissible and in view of the fact that modification of the Kolar Pocket Scheme has been made on 17-11 -2003 and permits were given liberally after the enactment of Motor Vehicles Act, 1988.
On the other hand, learned Counsel for the Respondents submitted that the order passed by the KSTAT and the learned Single Judge is justified in view of the decision of the Hon''ble Supreme Court and what is saved is the permit that was in force on the date of Kolar Pocket Scheme which was promulgated on 10-1-1968 and subject to modification of the scheme, the rights cannot be extended and variation cannot be granted to ply the vehicles on the monopoly route and the modification of the scheme dated 7-11-2003 cannot be sustained and the same has been challenged before this Court.
We have given careful consideration to the contentions of learned Counsel appearing for the parties and scrutinized the material on record.
It may be noted at the outset that there is no merit in the contention of learned Counsel appearing for the Appellants-Petitioners that in view of the modification of the scheme on 7-11-2003 route can be varied, cannot be accepted as the said modification of the scheme has been set aside by us in a separate order passed today in W.P. No. 6616/2004 and connected matters.
So far as granting deviation from non-monopoly route to monopoly route is concerned, now it is well settled that in view of the decisions of the Hon''ble Supreme Court in R. Raghuram Vs. P. Jayarama Naidu and Others, , Gajraj Singh etc. Vs. The State Transport Appellate Tribunal and others etc., , Ram Krishna Verma and Others Vs. State of U.P. and Others, and Adarsh Travels Bus Service and Another Vs. State of U.P. and Others, that once a scheme is published in relation to any area or route or the portion thereof, to the complete exclusion of other persons, no person other than the State Transport Undertaking may operate on the notified route except as provided in the scheme itself and the rights of saved operators is available exclusively to the named private operator and that too, in respect of specified permits and with same restrictions continued in the scheme and none else and no more. In view of the above said decisions of the Hon''ble Supreme Court, which has been followed by the learned Single Judge, it is clear that finding of the learned Single Judge that deviation granted by Karnataka State Transport Authority from non-monopoly route to monopoly route cannot be sustained, is justified and on the facts and circumstances, other findings given on other points for determination is also justified as the predecessor in interest of the Petitioner-Appellant herein had made an application for variation and the same was rejected and the same would be binding upon the Appellant and though appeal is maintainable, revision cannot be thrown out when the order is without jurisdiction and the appeal lies to the same authority as rightly held by the learned Single Judge and deviation is also contrary to Section 83 of the Motor Vehicles Act, 1988 and the matter need not be remanded in view of the modification of the Kolar Pocket Scheme by notification dated 7-11-2003 and the said scheme has now been set aside by us by a separate order. Therefore it is clear that variation granted by the Karnataka State Transport Authority to the Petitioners who are saved operators from non-monopoly route to monopoly route cannot be sustained and the same is liable to be set aside and therefore, the order of the learned Single Judge in W.P. Nos. 8807-8809/2001 is justified.
In view of the said finding, the order passed by the learned Single Judge in W.A. No. 2633/2004 and the order passed by the KSTAT which had been challenged in W.P. Nos. 48446/2004, 49336/2004 and 48419/2004 are entitled to be confirmed.
Accordingly, we pass the following:
ORDER
All the writ appeals and writ petitions are dismissed.