MOIUDDIN SHARIFF Vs. K S T A T

JUDGEMENT

(1.) Both these petitions are filed by the same petitioner. In writ petition No. 21364/83, the petitioner has sought for quashing the resolution dated 31-8-1982 passed in Subject No. 60/81-82 by the R.T.A.. Chitradurga, produced as Annexure-B. He has also sought for quashing the order dated 28th September, 1983, passed by the Karnataka State Transport Appellate Tribunal (for short, 'KSTAT') in Appeal No. 895 of 1982 produced as Annexure-C. The petitioner has also sought for a direction to the 2nd respondent to grant permit on the route Chitradurga to Davangere, In Writ Petition No. 2565 of 1983, he has sought for issue of a writ in the nature of prohibition prohibiting the R.T.A. from considering the Agenda in Subject No. 56 of 1982-83 on 8-2-1983 and on any other subsequent dates.

(2.) The petitioner holds a stage carriage permit bearing No. BP36/59-60 on the route Chitradurga to Chickamagalur and back ; and Chitradurga to Davangere and back. He has sought for grant of variation of conditions of the permit by way of grant of one additional trip from Chitradurga to Chickamagalur and back (two round trips) with inclusion of one more vehicle to the existing permit. Alternatively, he has also sought for grant of additional trip from Chitradurga to Davangere and back via Kathral, Chikkabennur, Bharamasagar, Hebbal, Anagodu (non stop express) and three round trips daily with inclusion of one more vehicle to the existing permit. During the course of the proceeding, he has given up the prayer relating to an additional trip from Chitradurga to Chickamagalur and inclusion of one more vehicle to the existing permit. He has only pressed the prayer for additional trips from Chitradurga to Davangere. The R.T.A. has rejected the application on the ground that the variation amounts to grant of a fresh permit which is not permissible having regard to the publication of the Davangere Draft Scheme ; that the K.S.R.T C. has sought for a grant of temporary permit under Section 68F(1A) of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act') ; therefore the additional trip cannot be granted to the petitioner. In the appeal preferred by the petitioner in Appeal No. 895/82,. the KSTAT has agreed with the view taken by the R.T.A and has dismissed the appeal. When the appeal was pending before the KSTAT, the application filed by the K.S.R.T.C. for grant of a temporary permit under Section 68F(lA) of the Act, was listed for consideration. Therefore, the petitioner has filed W.P. No. 2565/8.3 seeking a writ of prohibition, prohibiting the R.T.A from considering the agenda in Subject No. 56/82-83 which includes the route from Chitradurga to Davangere.

(3.) The contention of Sri P.R Ramesh, Learned Counsel for the petitioner, is that the petitioner, being an existing operator, is entitled to have the additional trips granted when the need for granting additional trips is found to exist. Even when the KSRTC files an application for seeking temporary permit under Section 68F(1A) of the Act, on the route Chitradurga to Davangere, the right of the petitioner to seek additional trip is Dot in any way affected. Learned Counsel has placed reliance on a Division Bench decision of this Court reported in AIR1980 Kant 199 , AIR1980 KAR 199 , ILR1980 KAR 993 , 1980 (2 )KarLJ1 , G. T. Venkataswamy Reddy v. KSTAT and also a Full Bench decision of this Court in Writ Appeal No. 949/74, DD. 19-9-1979--KSRTC v. Jayaram and also a decision reported in AIR1984 Kant 221 , AIR1984 KAR 221 , Meenakshi v. STAT. It is not possible to accept this contention. The petitioner is an existing operator with reference to the Davangere Draft Scheme, During the operation of the draft scheme, the permits can be granted only in accordance with the provisions contained in Section 68F of the Act, and not in any manner. No doubt, the existing operator is entitled to seek additional trip if it is found that it is necessary to increase number of vehicles on the route and that determination is made as per the provisions contained in Section 68F(1A) of the Act. But, on such determination being made, if the State Transport Undertaking seeks temporary permit under Section 68F(1 A) of the Act in respect of the very route, the existing operator will not be entitled to the grant of additional trip sought for by him. Such an additional trip can be granted to an existing private operator only if the KSRTC--the State Undertaking-does not seek permit in that regard. Learned Counsel however submits that the grant of additional trip does net amount to grant of fresh permit; therefore, existence of the draft-scheme does not in any way affect the right of an existing operator to seek additional trip. This contention overlooks the mandate of Section 68F (1D) of the Act that during the subsistence of the Draft Scheme, the permits are to he granted only in accordance with the provisions contained in Section 68F(1 A) and (1C) of the Act therefore, it is not possible to accept the contention. The question is not whether it does or does not affect the right of the existing operator; the question will be whether in respect of the additional trip sought for by the existing operator, whether the State Transport Undertaking has sought for grant of permit under Section 68F (1A) of the Act. If the State Transport Undertaking seeks temporary permit under Section 68F(1 A) of the Act, no private operator is entitled to seek temporary permit under Section 68F (1C) of the Act, or grant of additional trip to the existing permit. In the instant case, the KSRTC has sought for such permit.. The aforesaid decisions only lay down that the existing operators are entitled to seek additional trips. They are not rendered in the context of Draft Schemes. Therefore, the scope for granting variation of the conditions of permit during the subsistence of the draft scheme is Pot covered by those decisions. This is governed by the provisions of the Act. Section 68F(1D) of the Act, expressly provides that save as otherwise provided in Sub-section (1A) or Sub-section (1C), no permit shall be granted or renewed during the period intervening between the date of publication, under Section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class or road transport service in relation to an area or route or portion thereof covered by such scheme. The proviso thereof specifically makes it clear that if the permit expires after the publication of the scheme, it can be renewed. Thus, from Sub-section (1D) of Section 68F of the Act, it is clear that during the subsistence of the Draft Scheme, the permits can be granted only in accordance with the provisions of Section 68F (1A) and (1C) of the Act. The contention that the grant of variation of conditions of the permit does not amount to grant of fresh permit; therefore Section 68F of the Act is not attracted, cannot be accepted because if that contention is accepted, the provisions contained in Section 68F (1A) (1C) and (1D) of the Act will be rendered nugatory. As one of the reasons given by the authorities below that the variation is not granted having regard to the fact that the K. S. R. T. C. has filed an application for grant of permit under Section 68F (1A) ' of the Act, is valid, I do not see any justification to interfere with the impugned orders of the authorities below. In Writ Petition 2565/83, no relief can be granted because the application filed by the petitioner for grant of variation of conditions of the permit itself stands rejected.