IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL Nos.2569-2570 OF 2019 (MV) C/W WRIT APPEAL Nos. 2571-2572 OF 2019 (MV) IN W.A.Nos.2569-70/2019 BETWEEN:
SMT. P.N.NAGARATHNAMMA SINCE DECEASED BY L.R A) P.N.NARASIMHAMURTHY S/O PALLAVALLI ADISHESHAIAH AGE:70 YEARS VIJAYALAKSHMI MOTORS RESIDING AT: VASTANKITHA NILAYA PRASHANTHANAGAR BEHIND CHANDANAHALLI ROAD NEW DEVARAYANAPATNA EXTENTION TUMAKURU – 572 101.
(BY SHRI LOKESH.R, ADVOCATE) AND:
1. KARNATAKA STATE TRANSPORT AUTHORITY 1ST FLOOR, ‘A’ BLOCK, T.T.M.C. COMPLEX BMTC BUILDING KENGAL HANUMANTHAIAH ROAD SHANTHINAGAR BENGALURU – 560 027 BY ITS SECRETARY.
... APPELLANT 2. KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICES K.H.ROAD SHANTHINAGAR BENGALURU - 560 027.
BY ITS MANAGING DIRECTOR.
3. B.G.KRISHNAMURTHY AGE: MAJOR S/O M.P GANGAPPA NO.9-A, RACE COURSE ROAD MADHAVANAGAR BENGALURU – 560 001.
(BY SHRI. C.V.KUMAR, ADVOCATE FOR C/R-3 SHRI I THARANATH POOJARY, AGA FOR R-1) ---
... RESPONDENTS THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE DATED: 11.06.2019 TO THE WRIT PETITION NOS. 11282-11283/2016 FILED BY THE APPELLANTS AND ETC.
IN W.A.Nos.2571-72/2019 BETWEEN:
P.R. MANJUNATH S/O P.M.RANGANATH AGE 50 YEARS, NO.1000 MAIN ROAD, SIRA TOWN TUMAKURU.
(BY SHRI M.E.NAGESH, ADVOCATE) AND:
1. KARNATAKA STATE TRANSPORT AUTHORITY, BMTC BUILDING KENGAL HANUMANTHAIAH ROAD BENGALURU – 560 027 BY ITS SECRETARY.
2. KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICES, K.H.ROAD SHANTHINAGAR BENGALURU - 560 027.
BY ITS MANAGING DIRECTOR.
... APPELLANT 3. B.G.KRISHNAMURTHY AGE: MAJOR S/O M.P GANGAPPA NO.9-A, RACE COURSE ROAD MADHAVANAGAR BENGALURU – 560 001.
4. SMT. P.N.NAGARATHNAMMA SINCE DECEASED BY L.R
(BY SHRI I THARANATH POOJARY, AGA FOR R-1) ---
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE DATED: 11.06.2019 TO THE WRIT PETITION NOS. 11282-11283/2016 FILED BY THE APPELLANTS AND ETC.
THESE APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Writ Appeal Nos. 2569-2570 of 2019 Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.
2. The appellant and her husband were granted permits under the provisions of the Motor Vehicles Act, 1988. Revision Petitions were filed by the second respondent-Karnataka State Road Transport Corporation for challenging the permits. The permit granted in the name of the appellant (Smt.P.Nagarathnamma) was permit No.1/2014-15 which was valid till 22nd June 2019. The second permit was granted to appellant No.1(a) being permit No.8/2014-15. The said permit is valid till 23rd September 2019.
3. Both the permits were challenged by the second respondent by preferring the revision petitions before the Karnataka State Transport Appellate Tribunal. One of the main contentions raised in the revision petitions was that there is overlapping of the notified route and the route covered by the permits granted to the appellant and such overlapping is not permitted as per the provisions of the Bangalore Route Scheme. The second argument was that sub-section (1) of Section 88 of the Motor Vehicles Act, 1988 (for short ‘the said Act of 1988’) was applicable to permits and the counter- signature of the State Transport Authority of another State was required. The Tribunal accepted both the contentions by the judgment and order dated 16th February 2016 and proceeded to set aside the orders, under which permits were directed to be granted to the appellant No.1 and appellant No.1(a). The present appellant subjected the said order to challenge by filing writ petitions which have been rejected by impugned order dated 11th June 2019.
4. The first submission of the learned counsel appearing for the appellant is that there is no over-lapping as held by the Tribunal and in any case, there was no violation of Section 140 of the said Act of 1988. The second submission is that the second proviso to sub-section (1) of section 88 of the said Act of 1988 is applicable and therefore, sub-section (1) of Section 88 will have no application.
Writ Appeal Nos. 2571-2572 of 2019 5. In writ appeal Nos.2571-2572/2019, an application for grant of leave has been filed as the appellant was not a party to the proceeding before the Tribunal as well as before the learned single Judge. The learned Counsel for the appellant submitted that the findings recorded by learned single Judge will bind the respondents and therefore, the appellant is aggrieved by the findings.
6. As far as writ appeal Nos.1571-1572/2019 is concerned, we must note here that by the impugned judgment and order, the learned Single Judge has affirmed the findings recorded by the Tribunal by order dated 16th February 2016. The findings have been recorded while considering the issue whether the permit granted to the appellants deserves to be set aside. The findings recorded by the Tribunal were never challenged by the appellant and now, the said findings are sought to be challenged by filing an application for leave to file an appeal.
7. Apart from this aspect, writ appeals at the instance of the appellant cannot be entertained in as much as though he was aggrieved by the order passed by the Tribunal and the findings recorded by the Tribunal, the appellant has not chosen to challenge the same by filing a writ petition. Moreover, what is done by the learned single Judge is the affirmation of factual findings recorded by the Tribunal and the findings of the Tribunal are recorded for the purpose of deciding the legality of the permits granted in favour of the appellants in writ appeals Nos.2569-2570 of 2019. Hence, this appeal cannot be entertained.
8. Now, coming to writ appeal Nos.2569-2570/2019, the learned counsel appearing for the appellant tendered a new comprehensive area scheme for the entire State of Karnataka dated 07th March 2019. He submits that in view of the said comprehensive area scheme, the application for renewal of the permit which has expired be ordered to be considered.
9. Section 104 of the said Act of 1988 reads thus:
"104. Restriction on grant of permits in respect of a notified area or notified route.—Where a scheme has been published under sub-section (3) of section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme:
Provided that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State transport undertaking in respect of that area or route.”
10. Perusal of the order of the Tribunal shows that a categorical finding of fact has been recorded regarding overlapping of notified route and the route for which permits have been granted and therefore, there is a finding that the grant of permit is in violation of Section 104 of the said Act of 1988. There are elaborate factual findings recorded by the Tribunal on this aspect recording the conclusion that there is a overlap which is prohibited by Section 104 of the said Act of 1988.
11. The submissions made by the learned counsel for the appellant have been reproduced by the learned single Judge in Paragraph 5 of the petitions in detail. Close scrutiny of Paragraph 5 shows that as far as finding regarding overlapping by the Tribunal is concerned, there is no challenge at all. The entire argument seems to be on the question whether sub-section (1) of Section 88 will apply or the second proviso thereto will apply. There is a finding of fact recorded by the Tribunal regarding overlap which is not permissible as per Section 140 of the said Act of 1988. There is not a single submission recorded regarding the challenge to finding on the issue of overlap which was a finding of fact. Therefore, in appeal, for the first time, we cannot allow the appellant to agitate the said contention. If according to the case of the appellant, the challenge to the finding on the ground of overlap was argued and is not considered, the remedy of the appellant is before the learned single Judge. Thus, it follows that the grant of permit was itself in violation of Section 140 of the said Act of 1988 and therefore, appellant cannot get benefit of the new comprehensive area scheme dated 07th March 2019. As the impugned order is being confirmed on one of the two findings recorded by the Tribunal, it is not necessary to go into the other issue.
12. Accordingly, we find no merit in the appeals. The appeals are dismissed.
The pending interlocutory applications do not survive and are accordingly, disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bnv