Shaffique, J. Heard the learned counsel for the appellant, the learned Spl. Government Pleader and the learned Standing Counsel appearing for the Kerala State Road Transport Corporation.
2. This appeal is filed challenging the judgment dated 10-10-2014 in W.P. (C ) No. 14143 of 2013. The facts involved in the case will disclose that the petitioner is holding a regular permit on the route Kudappanakkunnu-Kaimanam in respect of his Stage Carriage KL-01/AT 5969. He sought for extension of the route by 4.5 kms. Initially, the same was rejected but in an appeal filed as MVAA No. 352/2010, the State Transport Appellate Tribunal directed the extension to be granted as sought for by the petitioner. This order came to be challenged by the 3rd respondent in W.P.C. No. 18911 of 2012 inter alia contending that there is objectionable overlapping if Ext.P3 order is complied with. This Court by judgment dated 10-10-2012, remitted the matter back to the Tribunal for fresh consideration, after hearing the 3rd respondent as well.
3. On remand, the Tribunal passed an order dated 25-3-2013 inter alia observing that proviso (i) to Sec. 80 (3) of the M.V. Act applies and since there will be operation of the termini, the petitioner is not entitled for the relief as claimed for. The appeal was, therefore, dismissed.
4. The main contention urged by the learned counsel for the appellant is that the only contention raised by the KSRTC was regarding objectionable overlapping in the said route. The said contention has not been considered. Whereas the Court has proceeded on the basis that proviso(i) to Sec. 80 (3) applies. According to the learned counsel for the appellant the said proviso has no application. In so far as the petitioner is concerned, the variation sought for is only for extension of the route by 4.5 kms., in regard to which proviso (i) of Section 80 (3) has no application.
5. Learned counsel for the 3rd respondent, however, would further submit that there is objectionable overlapping in the route and the Tribunal was justified in coming to the conclusion that proviso (i) to Sec. 80(3 ) applies to the facts of the case.
6. Having regard to the aforesaid contentions, we are of the view that the main contention urged by the 3rd respondent was with reference to objectionable overlapping. The Tribunal ought to have considered the said issue primarily. As far as proviso (i) to Section 80 (3) is concerned, it apparently relates to variation of the permit conditions. The appellant has a case that the appellant has only sought for extension of the route which is different from the variation as specified under Sec. 80(3) and the difference between such claims have been upheld by this Court in several cases.
7. Having regard to the above submissions, we are of the view that the Tribunal did not consider the matter with reference to the scope of remand made by this Court in the judgment dated 10-10-2012 in W.P.C. 18911/2012. The Tribunal ought to have considered the question of objectionable overlapping before proceeding to consider other aspects which has been contended by the parties. In the said circumstances, we do not think that there was justification on the part of the learned Single Judge to have dismissed the Writ Petition, whereas the matter ought to have been remitted back to the Tribunal for fresh consideration.
In the result, this Writ Appeal is allowed. The judgment of the learned Single Judge is set aside The Writ Petition is allowed setting aside Ext.P5 judgment in MVAANo. 352/2010 and the matter is remitted back to the Tribunal. There will be a direction to the State Transport Appellate Tribunal to re-consider Ex.P2 appeal MVAA No. 352 afresh on merits, after hearing all the affected parties. The appeal shall be disposed of as expeditiously as possible.
Sd/-ASHOK BHUSHAN , Ag. CHIEF JUSTICE ani/ Sd/- A.M.SHAFFIQUE, JUDGE /truecopy/ P.S.ToJudge