Allowed

Kerala State Road Transport Corporation v. the Regional Transport Authority

Kerala HC18 Jul 2016WP(C)/11749/2012

Case brief

AI extract

What is this about?

The High Court allowed the writ petition filed by KSRTC challenging the State Transport Appellate Tribunal's order allowing an operator's appeal. The Court found the Tribunal failed to apply legal principles regarding objectionable overlapping versus inevitable intersection and remanded the matter for re-consideration by the Regional Transport Authority.

What did the court decide?

The order of the State Transport Appellate Tribunal is set aside; the 1st respondent is directed to re-consider the application within six weeks taking into account relevant judgments.

Kerala State Road Transport Corporation Vs the… — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 18TH DAY OF JULY 2016/27TH ASHADHA, 1938

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WP(C).No. 11749 of 2012 (P)

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PETITIONER :

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THE KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM-695 023, REPRESENTED BY ITS CHIEF LAW OFFICER, P. SURESH KUMAR.

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BY ADVS.SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC SRI.P.C.CHACKO, SC, KSRTC

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RESPONDENT(S):

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1. THE REGIONAL TRANSPORT AUTHORITY, THRISSUR-680 001, REPRESENTED BY ITS SECRETARY.

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2. E.A.PAUL, S/O LATE AUGUSTY, ENLINJELY HOUSE, K. KUNNU P.O., MELOOR, THRISSUR DISTRICT, PIN-680 311.

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R1 BY SR GOVERNMENT PLEADER SMT. K.A.SANJEETHA R2 BY ADVS. SRI.SAJU J.VALLYARA

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SRI.P.V.PAULSON

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.11749/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT P1: TRUE COPY OF THE NOTIFICATION NO.G.O.(P)42/2009/TRAN DATED 14.7.2009 PUBLISHED IN THE KERALA GAZETTE DATED 14.7.2009.

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EXHIBIT P2: TRUE COPY OF THE DECISION NO.G-121923/2009 R DATED 18.6.2010 OF THE 1ST RESPONDENT.

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EXHIBIT P3: TRUE COPY OF THE JUDGMENT DATED 2.12.2010 IN M.V.A.A. NO.246/2010 OF THE LEARNED STAT, ERNAKULAM.

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EXHIBIT P4: TRUE COPY OF THE DECISION DATED 25.2.2011 OF THE 1ST RESPONDENT.

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EXHIBIT P5: TRUE PHOTOCOPY OF THE JUDGMENT IN KARNATAKA STATE RAOD TRANSPORT CORPORATION V. ASHRAFULLA KHAN AND OTHERS REPORTED IN 2002 (2) SCC 560 OF THE HON'BLE SUPREME COURT OF INDIA.

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EXHIBIT P6: TRUE COPY OF THE JUDGMENT DATED 10.1.2012 IN M.V.A.A.NO.271/2011 OF THE LEARNED STATE, ERNAKULAM.

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EXHIBIT P7: TRUE COPY OF THE ORDER DATED 8.5.2012 IN W.P.()NO.10933/2012 OF THIS HON'BLE COURT.

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RESPONDENTS' EXHIBITS :

NIL

/TRUE COPY/

P.S.TO JUDGE

sts

SHAJI P. CHALY, J.

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W.P.(C) No.11749 of 2012

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----------------------------------------------Dated this the 18^th day of July, 2016

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JUDGMENT

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This writ petition is filed by the petitioner Corporation, challenging Ext.P6 judgment of the State Transport Appellate Tribunal, Ernakulam (for short, 'the Tribunal'). On the basis of the said judgment, 2^nd respondent is issued with permit by the 1^st respondent. The 2^nd respondent has filed an application before the 1^st respondent seeking grant of permit, which was declined. The same was challenged by the 2^nd respondent before the Tribunal and the Tribunal remanded the matter to the 1^st respondent as per Ext.P3, for re-consideration. On remand, 1^st respondent again considered the matter and rejected the application of the petitioner as per Ext.P4 order, holding that the permit sought for by the petitioner is passing through objectionable overlapping areas in accordance with the notification in vogue. Aggrieved by the same, 2^nd respondent preferred appeal before the Tribunal and as per Ext.P6 judgment, the Tribunal allowed the appeal. It is thus challenging Ext.P6, petitioner has filed this writ petition before

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W.P.(C) No.11749 of 2012

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this Court.

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Heard learned counsel for the petitioner, learned Senior Government Pleader as well as the learned counsel appearing for the 2^nd respondent.

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Learned counsel for the petitioner reiterated the contentions raised in the writ petition. The thrust of the contention put forth by the learned counsel for the petitioner is that, based on clauses 5(c) and 19 of Ext.P1 notification, the proposal was objected and it was thereupon that the 1^st respondent rejected the application as per Ext.P2 order. That apart, it is also contended that, the issue with respect to the objectionable overlapping and inevitable intersection was considered by this Court in the judgment in 'Kerala State Road Transport Corporation v. Regional Transport

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Authority ' [2013 (2) KLT 280] and has described the nature of inevitable intersection. According to the learned counsel, the route in question is having an objectionable overlapping of

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2.4 kms. and therefore the Tribunal erred absolutely in allowing the appeal preferred by the petitioner as per Ext.P6 judgment.

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W.P.(C) No.11749 of 2012

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That apart, it is contended by the learned counsel that, the subject issue was considered in 'Karnataka State Road Transport Corporation v. Ashrafulla Khan and others' [(2002) 2 SCC 560], in which also it was held that, providing permit on the same line of route in violation of the notification amounts to objectionable overlapping and the same cannot be termed as inevitable intersection. Learned counsel has also invited my attention to the judgment of the Apex Court in ' B.A. Linga Reddy and others v. Karnataka State Transport Authority and others' [(2015) 4 SCC 515], in which it was held that the judgment in ' Ashrafulla Khan ' cited supra , is having retrospective operation and therefore the orders passed by the State Government in violation of the directions contained thereunder cannot be sustained. It is in this background, learned counsel for the petitioner submitted that Ext.P6 order passed by the Tribunal cannot be sustained under law.

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Learned Senior Government Pleader supported the arguments advanced by the petitioner Corporation. On the other hand, learned counsel for the 2^nd respondent contended that, there is no overlapping at all and the same is only

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W.P.(C) No.11749 of 2012 4

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inevitable intersection, since there are no other way to travel on the route and therefore Ext.P6 order passed by the Tribunal may not be interfered with.

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Anyhow, as I have pointed out earlier, so far as overlapping and inevitable intersection are concerned, the Apex Court as well as this Court in the judgments cited supra have already decided the issue and therefore it is for the authority to ultimately reach a conclusion to its satisfaction as to whether the route in question is passing objectionable overlapping or inevitable intersection. Anyhow, based on Ext.P6 order, permit is issued to the petitioner. In view of the judgments cited supra and the fundamental legal position rendered by the Apex Court as well as this Court, I am of the considered opinion that Ext.P6 order passed by the Tribunal has not taken into account the legal principles laid down by the aforesaid judgments, and therefore the same is liable to be interfered with.

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Hence, I set aside the order of the Tribunal and direct the 1^st respondent to re-consider the application submitted by the petitioner taking into account the stipulations and parameters provided as per the judgments of the Apex

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W.P.(C) No.11749 of 2012

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Court and this Court cited supra . Since permit is already issued, 2^nd respondent can be allowed to operate on the basis of the permit, till a decision is taken by the 1^st respondent. A decision in accordance with the directions contained in the judgments supra shall be taken by the 1^st respondent within a period of six weeks from the date of receipt of a copy of this judgment. Needless to say, 2^nd respondent will be at liberty to file any modified proposal and if any such proposal is made, the same will also be taken into consideration by the 1^st respondent.

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The writ petition is disposed of accordingly.

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Sd/- SHAJI P. CHALY JUDGE

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//true copy//

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P.S. to Judge

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St/18.07.2016

Kerala State Road Transport Corporation v. the Regional Transport Authority

Case brief

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Kerala State Road Transport Corporation v. the Regional Transport Authority

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