North West Karnataka Road Transport Corporation vs Sri. Madhav Naik and Another

Mohan Shantanagoudar, J.—These writ petitions are filed by the North-West Karnataka Road Transport Corporation questioning the validity of the order Annexure-''A'' passed by the 2nd Respondent- Regional Transport Authority, Dharwad, granting permits in favour of the first Respondents (in all these matters) to operate their services between Dharwad and Hubli, and to operate in Dharwad City and sub-urban area.

The records disclose that the routes situated in between Dharwad and Hubli, as well as, Dharwad city and sub-urban area are notified routes by the scheme published by the State Government in the year 1959-60. However, the State Government issued a draft Notification on 17.10.2003 proposing to modify 17 approved schemes, including Hubli-Dharwad scheme. The Petitioner filed objections to the said draft notification. After considering the said objections of Petitioner-Corporation, the State Government issued the Final Notification by modifying the scheme on 31.12.2003 vide Annexure-''D'' permitting the private operators to operate their buses as city services up to the radius of 20 Kms. from Revenue District Headquarters, excluding Bangalore City. Pursuant to the said Notification, 1st Respondents in all these writ petitions, filed applications seeking grant of permits before RTA, Dharwad. The Petitioner herein-KSRTC filed objections to the applications filed by 1st Respondents in all these matters. After hearing, the Regional Transport Authority has resolved to grant permits in favour of the 1st Respondents as per Annexure-''A''. As aforesaid, the KSRTC has sought for quashing the Resolution vide Annexure-''A'' resolving to grant permits in favour of 1st Respondents by filing these writ petitions.

Sri Ashok Harnahalli, learned Counsel appearing on behalf of Petitioner-Corporation herein vehemently contended for allowing the writ petitions, by raising following points:

(i) that the Notification dated 31st December, 2003 vide Annexure-''D'' by which the scheme is modified, permits only the existing operators to apply for grant of city services (stage carriage) permits and the 1st Respondents in all these matters are not the existing operators and consequently are not entitled to get the permits;

(ii) that the modified scheme vide Annexure-''D'' and the Resolution vide Annexure-''A'', permit the operators to operate the vehicles within the distance of 20 K Ms. ; that the distance between Hubli and Dharwad is about 22 K Ms. and therefore the permits granted to the first Respondents to operate their services, in between Hubli and Dharwad are illegal.

(iii) that the joint route survey had to be done by the concerned authority before granting permits, to identify the routes falling within 20 kms distance;

(iv) that the Petitioner is running 1,392 trips exclusively between Hubli and Dharwad with a frequency and interval of two minutes; and therefore additional buses are unnecessary. Even otherwise, the KSRTC should have been given first option to operate additional buses as contained in proviso to Section 71(3) of the M.V. Act.

(v) that the principles of natural justice are violated, inasmuch as, the facts which are relied upon by the Regional Transport Authority for coming to the conclusion are not put to Petitioner-Corporation and consequently, it did not have opportunity to rebut the incorrect statement of facts as contained in the impugned order Annexure-''A'';

Per contra, Sri Vijaya Shankar, learned Senior Counsel appearing on behalf of permit holders-Respondents in all these matters submitted that, KSRTC has not challenged the modified scheme vide Annexure-''D'' dated 31st December 2003; that it is not in dispute that KSRTC was heard by the State Government at the time of modifying the scheme vide Annexure-''D'', as also by the Regional Transport Authority at the time of grant of permits vide Annexure-''A''; that as all the contentions raised by the KSRTC are questions of facts, they will have to be decided by Revisional Authority u/s 90 of the M.V. Act and these writ petitions are liable to be dismissed in view of availability of an alternative remedy to the Petitioners. He further submitted that the intention of the State Government is clear from Para-15 of the impugned order that in order to avoid and overcome the hardship caused to the passengers at large, the scheme is amended so as to permit the private operators to ply the vehicles within 20 K Ms. radius from the District Head quarters; it is also the intention of the State Government to have healthy competition among the operators by ending the monopoly of the KSRTC. Section 80(2) of the Act discloses that the authority shall not ordinarily refuse to grant the application for permit of any kind made under the Act; the route survey in this matter is conducted by the State Government as could be seen from Para-12 of the impugned order vide Annexure-''A''; if any permit holder operates the vehicles by overlapping on the notified route in excess of 20 kms radius from District Head Quarters, it is open for the Karnataka State Road Transport Corporation and other authorities to initiate action against such private operators in accordance with law; and that all the granted routes under the order Annexure-''A'' are within 20 K Ms. radius; On these among other grounds, he argues for dismissal of the writ petitions.

Sri Palakshaiah, learned High Court Government Pleader submits that route survey is conducted by the State Government on 31.12.2003 and on the basis of the said route survey, the Regional Transport Authority has granted permits in these matters within 20 kms radius from District Head Quarters.

The contention urged by Sri Vijay Shankar, learned Senior Counsel appearing for the Respondents, namely that the Petitioner ought to have availed the alternative remedy of revision u/s 90 of the Motor Vehicles Act before the Appellate Tribunal and that the Petitioners cannot file the writ petitions directly cannot be accepted. This Court, in catena of decisions has held that the existence of alternative remedy, particularly in so far as Writs of Certiorari are concerned, is not an absolute bar. The Rule regarding existence of an alternative remedy is more a Rule of prudence than a Rule of Law. It is a self imposed restraint which the Courts have evolved that is invoked while asking a party to have resort to the alternative remedy. Under certain exceptional circumstances, this Court may entertain the writ petitions directly bypassing the alternative remedy. As the matters on hand are argued by the learned Counsels at length on merits, I do not propose to drive the Petitioners to approach the Revisional Authority at this stage.

In these matters, the notification by which the scheme is modified is not challenged by the KSRTC. It is also not in dispute that the KSRTC is heard before amending the scheme, as well as passing the impugned order vide Annexure-''A''.

Re: Point (i)

Sri Ashok Harnahalli, learned Counsel for the Petitioner submits that only existing permit holders are entitled to get the permits and new operators cannot seek for grant of fresh permits. He based the aforesaid submission on the wording used in modified scheme Annexure-''D''. The relevant portion of the modified scheme reads thus:

It is therefore considered necessary to modify the above schemes to allow private operators to operate their services as city service up to the radius of 20 kilometers from the Revenue District Head Quarters exclusing Bangalore City in various notified routes of approved schemes indicated as above.

And whereas, the proposed modification of approved schemes was published as required by Sub-section (2) of Section 102 of the Motor Vehicles Act, 1988 (Central Act 59 of 1988) in Notification No. HTD 134 TMA 2003, dated 17.10.2003 published in part-IV-A of the Karnataka Extraordinary Gazette dated 18.10.2003 No. 1231 and also in newspaper inviting objections and representations from State Transport Corporation and any other persons likely to be affected thereby on or before 16.11.2003.

And whereas, the said Gazette was made available to the public on 17.10.2003.

And whereas, the objections and representations received on the said draft have been heard on 19.11.2003 and considered by the State Government.

Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 102 of the Motor Vehicle Act, 198 (Central Act 59 of 1988), the Government of Karnataka having considered it necessary in the public interest so to do, hereby partially modify the said approved schemes published in the above mentioned notifications to allow the private operators to operate their services as city services up to the radius of 20 (Twenty) kilometers from the Revenue District Headquarters excluding Bangalore City as follows namely:

Modification

Notwithstanding anything contained in the above schemes, the Private Operators are allowed to operate their services as city services as per the conditions of the permit granted by the respective Transport Authority up to a radius of 20 kilometers from the Revenue District Headquarters excluding the Bangalore City.

By order and in the name of the Governor of Karnataka.

(Underline is mine)

According to the Petitioner the words "private operators are allowed to operate their services" would mean that "the existing private operators are allowed to operate their services" i.e., the private operators operating on the route in question, as on the date of publication of modified scheme, only are entitled to ply the buses after obtaining permits. If the contention of the learned Counsel for the Petitioner is to be accepted, then, necessarily there must be some private operators already operating on the routes in question. In this case, it is not in dispute that prior to modification of the scheme, no private operator was allowed to operate the city services on the routes in question in view of the scheme then existing. The Maxi cabs which are operating on the routes are the contract carriages and not the stage carriages. Thus, it is very much clear that no private stage carriage operator was operating the buses as city service on the route in question as the same was a notified route from 1960 till its modification on 31st December, 2003. Thus, the contention of Sri Ashok Harnahalli that only the existing permit holders can operate the services, has not basis in as much as the modification of the scheme is only meant for introduction of fresh services by private operators. The modified scheme cannot be read contrary to the intention of the State. Even from the bare reading of the modified scheme in its entirety, it is clear that it does not prohibit the new operators to seek permits. The modified scheme does not enure to the benefit of only the existing operators. The word "existing" is not found in the scheme and that therefore the said word cannot be read into the scheme. The words "permit granted" cannot also be construed as "permit already granted" in as much as, admittedly not even a single stage carriage permit was granted to the private operators to ply the bus as City Service in Hubli- Dharwad City earlier to the notification Annexure-D, by which scheme is modified. Where the language is plain and admits, of, but one meaning, there cannot be any difficulty of understanding the said provision because the same has to be read as it is. If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. In this view of the matter, by reading the modified scheme, it is clear that the State Government intended to grant permits to the new private operators. Hence, the said contention of the learned Counsel for the Petitioner in this regard cannot be accepted.

Reg. Points No. (ii) and (iii)

By the impugned order Annexure- ''A'', permits are granted to operate the bus services within the radius of 20 K Ms. from the District Headquarters. In this view of the matter, learned Counsel for the Petitioner submitted that the permits holders cannot operate their services for more than 20 K Ms. If they operate the services for more then 20 K Ms. , it amounts to overlapping on the notified route. He further submitted that as the distance between Hubli and Dharwad is about 22 K Ms there will be overlapping for about 2 kms. Therefore the authority should have conducted the joint route survey and should have demarcated the two points within which bus services should be operated. In the absence of route survey, it is difficult to identify as to whether the permit holders are operating within 20 kms or not. According to the Petitioner, no route survey, much less, joint route survey is conducted by the authority before passing the impugned orders. In this connection, learned Counsel relied upon the judgment of this Court reported in the case of KSRTC v. Pauli Govis ILR 1996 Kar. 295. Per-contra, Shri Vijayshankar, learned Senior Counsel, after taking me through the dictionary measuring (sic meaning) of "Radius", submits that all the granted routes are within the purview of 20 kms of radius and that route survey in these matters are totally unnecessary.

In these matters, modified scheme permits the authority to issue permits for the route up to the radius of 20 K Ms. from District Headquarters. Thus, there is no prohibition for the permit holder to operate within the radius of 20 K Ms. from District Headquarters, even on notified routes. In this view of the matter, there will be overlapping only if, the permit holder plies the bus over and above the radius of 20 K Ms. from the District Headquarters. The word "radius" of 20 K Ms used in the amended scheme cannot be construed as "length" of 20 kilometers by road. Radius of 20 kms is nothing but straight line of 20 kms from the centre point to the circumference or a circle. In view of the same, the area within 20 kms of radius may also encompass the length of route of more than 20 kms by road. Therefore it cannot be said that the routes for which the permits are granted should be only within 20 K Ms. from the center point.

In these matters, there cannot be any dispute that the private operators can be granted permits, within the radius of 20 kms from District Head Quarters. Thus, in effect, all routes lying within 20 kms radius from District Head Quarters, cease to the notified routes. Thus the question of determination of overlapping on any notified route within the prescribed range of 20 kms radius, does not arise. Hence conducting of joint route survey in the matter on hand for identifying the routes coming within 20 kms radius may not be necessary. It is relevant to note here itself that, the permit holders, in their statement of objections dated 26.11.2004, filed in these writ petitions have contended that, on the direction of the Commissioner for Transport, dated 6.8.2003, the chairman of RTA and RTO Dharwad have identified the area coming with the radius of 20 kms and submitted the report on 16.2.2004 to the State Government. The said contention is not controverted by the KSRTC. Thus it is clear that the authorities have identified the area within 20 kms of radius from the District Head Quarters.

There cannot be any doubt that whenever there are allegations of overlapping on the notified routes, the safe course would be to have the route survey done. But in these matters as stated above, there cannot be any allegation by KSRTC of overlapping on the notified route within 20 kms of radius from District head quarters. Hence the decision cited supra may not be applicable to the facts of these matters.

It is not in dispute that the granted routes in these case are within the radius of 20 kms from district head quarters. But the contention of Petitioner is that the route between Dharwad and Hubli is having length of about 22 kms and that the permits cannot be granted for the route in excess of length of 20 kms. As aforesaid the length of granted route is irrelevant in these matters, as long as the routes are within 20 kms radius from the District Head Quarters.

Sri Palakshaiah, learned Government Pleader has made available the records of Regional Transport Authority. Looking to the records, it is clear that route survey is conducted by the concerned officers of Motor Vehicles Department. It is also clear from Para-12 of the impugned order Annexure-''A'', that the route survey is conducted by the Regional Transport Officer. It is further clear from the said paragraph of the impugned order that the routes mentioned in the applications for grant of permit fall within 20 K Ms. radius from the District Headquarters. In view of the fact that route survey is conducted by the Regional Transport Officer and in view of the fact that all the granted routes are within the radius of 20 K Ms. from the District Headquarters, as could be seen from the order Annexure-''A'', this Court cannot interfere in the orders of grant of permits on this ground.

It is needless to observe that, if in case any private operator operates his services beyond the radius of 20 Kms. from District Headquarters, i.e., if he contravenes the conditions imposed in the permit, it is always open for the concerned authorities to initiate action on such operator before the statutory forum in accordance with law.

Reg. Point (iv)

Learned Counsel for the Petitioner submitted that KSRTC is operating sufficient number of buses and it is catering to the needs of public at large. According to him, the KSRTC is operating about 1392 trips with a frequency and interval of two minutes and thus, the reasons assigned in the order Annexure-''A'' that the KSRTC is not plying the adequate buses are incorrect. He further submitted that the KSRTC should have been given an opportunity to increase the number of its fleets at the first instance, and if the KSRTC still fails to cater to the needs of public, the authority could have granted the permits in favour of the private operators. The counsel further sought assistance from the proviso to Section 71(3) of M.V. Act, in support of his contention that preference should have been given to KSRTC., while granting the permits. Per Contra learned Counsel for the Respondents relied upon the reasons assigned by the Regional Transport Authority in the impugned order.

Para-6 of the impugned order makes it clear that the KSRTC is operating 446 trips and other private contract carriage permit holders are operating 234 trips of Maxi cabs. The impugned order further discloses that the present services of KSRTC are not sufficient to cater the needs of public at large and consequently, the school going children and old aged citizen are put to greater hardship. As the buses are fully packed, it will be difficult for the public, at times, to enter the buses in peak hours. As these are pure findings of facts, the correctness of the same cannot gone into in Writ Proceedings. To avoid monopoly of the KSRTC and to create healthy competition between KSRTC and other private operators, the Regional Transport Authority felt it proper to grant permits to the private operators in pursuance to the modified scheme. Therefore the action of the authority in granting permits to the private operators cannot be said to be illegal or arbitrary.

The Apex Court in the case of Mithilesh Garg, Vs. Union of India and others etc. etc., has observed thus:

There is no threat of any kind whatsoever under the new Act from any authority to the enjoyment of the right of the existing operators under Article 19(1)(g) to carry on the occupation of transport operators. More operators mean healthy competition and efficient transport system. Overcrowded buses, passengers standing in the aisle, persons clinging to the bus-doors and even sitting on the roof-top are some of the common sights in this country. More often one finds a bus which has noisy engine, old upholstery, uncomfortable seats and continuous emission of black smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter-public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. It cannot be said that too many operators on a route are likely to affect adversely the interest of weaker section of the profession. The transport business is bound to be ironed out ultimately by the rationale of demand and supply. Cost of a vehicle being as it is the business requires huge investment. The intending operators are likely to be conscious of the economics underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a state is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal.

The aforesaid observations of the Apex Court completely answer the contention raised by the Petitioner-KSRTC. The proviso to Section 71(3) of M.V. Act, will not help the Petitioner, is as much as no notification under the said section is published by the State Government.

Reg. Point No. (v)

According to the learned Counsel for the Petitioner, the principles of natural justice are violated by the authorities, inasmuch as, the incriminating facts as found by the authority against the KSRTC are not put to KSRTC at the time of hearing and consequently, the KSRTC was not in a position to rebut such erroneous facts.

It is not in dispute that the KSRTC was heard at length before the Regional Transport Authority before passing the impugned order. It is also not in dispute that the KSRTC was represented by its Law Officer before the Regional Transport Authority and has filed detailed statement of objections. In the statement of objections, the KSRTC has taken almost all the grounds urged in these writ petitions. These facts amply go to show that reasonable opportunity of being heard is given to the Petitioner-Corporation. The Regional Transport Authority cannot try the matter as if it is a civil suit. The RTA is expected to pass appropriate orders after perusing the material on record. Even otherwise, as has been held by the Apex Court in Para-6 of the judgment in the case of Mithilesh Garg (cited supra), the right of existing operator to file objections and the provision to impose limit on number of permits have been taken away. Under such circumstances, it cannot be said that the principles of natural justice are violated.

On overall looking into the facts and circumstances of the case, I find that the permits granted in favour of the Respondents in these writ petitions are in accordance with the modified scheme. The Regional Transport Authority has taken into consideration various factors while issuing permits. The KSRTC is heard not only at the time of modifying the scheme, but also at the time of grant of permits. The permits are issued by the authority after taking into consideration the overcrowding of the KSRTC buses, passengers standing on the foot steps of the bus, clinging to the bus doors and looking to the plight of senior citizens and the school going children. The Regional Transport Authority has also taken into consideration that issuance of such permits will lead to healthy competition between KSRTC and the private operators. In this view of the matter, the passengers at large will be benefited by better facilities and services. The routes for which permits are granted are within 20 kms of radius from District Head Quarters. In view of the above, the grant of permits in favour of Respondents in all these writ petitions cannot be said to be illegal. The KSRTC in not at all affected by such process, inasmuch as, the permits granted to the KSRTC for running city services are not reduced. But, on the other hand, additional permits are granted to the private operators for running city services. It is always open for the KSRTC for ask for additional permits, in its favour, if need be.

In view of the above, I do not find any reason to interfere in the impugned order. Writ petitions are therefore dismissed.