IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MARCH, 2017 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.Nos.4281 – 4285/2015 (MV) BETWEEN :
1. SRI IRFAN S/O RAWOOF, AGED ABOUT 31 YEARS, R/AT NO.33, 6TH MAIN, 6TH CROSS, NEW GURAPPANA PALYA, B.T.M. LAYOUT 1ST STAGE, BANGALORE-560 029.
2. SRI LOKESH S/O MUNISHAM REDDY, AGED ABOUT 38 YEARS, R/AT MEDAHALLI, B.E.M.L. LAYOUT, 1ST CROSS, BANGALORE-562 101 3. SRI RAFI S/O RAWOOF, AGED ABOUT 45 YEARS, R/AT NO.33, 6TH MAIN, 6TH CROSS, NEW GURAPPANA PALYA, B.T.M. LAYOUT 1ST STAGE, BANGALORE-560 029.
4. SRI PRASHANTH B.V.
S/O VENKATARAMAREDDY, AGED ABOUT 41 YEARS, BANAHALLI, CHANDAPURA POST, ANEKAL TALUK, BANGALORE-560 081.
5. SRI MURALI S/O MUNISHAM REDDY, AGED ABOUT 41 YEARS, THYAVANAKANA HALLI, BIDARAGUPPE POST, BANGALORE-560 110. ...PETITIONERS (BY SRI A.S.PARASARA KUMAR, ADV.) AND :
1. THE STATE OF KARNATAKA 5TH FLOOR, M.S.BUILDING, Dr. AMBEDKAR VEEDHI, BANGALORE-560 001, REP. BY ITS UNDER SECRETARY TO GOVERNMENT FOR TRANSPORT DEPARTMENT.
2. THE REGIONAL TRANSPORT AUTHORITY BANGALORE CENTRAL, B.D.A. COMPLEX, KORAMANGALA, BANGALORE-560 034, REP. BY ITS CHAIRMAN.
3. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, BANGALORE CENTRAL, B.D.A. COMPLEX, KORAMANGALA, BANGALORE-560 034.
BY ITS SECRETARY.
4. BANGALORE METRO TRANSPORT CORPORATION, K.H.ROAD, SHANTHINAGAR, BANGALORE-560 027.
REP. BY ITS MANAGING DIRECTOR.
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 13.11.2015.) 5. THE MANAGING DIRECTOR KSRTC, CENTRAL OFFICES, K.H.ROAD, SHANTHINAGAR, BENGALURU-27, REP. BY THE CHIEF LAW OFFICER.
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 24.11.2015.) …RESPONDENTS (BY SRI VIJAYA KUMAR A. PATIL, AGA FOR R-1 TO R-3; SRI HAREESH BHANDARY, ADV. FOR R-4;
SRI PALAKSHAIAH, ADV. FOR R-5.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE NOTIFICATION ISSUED BY THE R-1 DATED 30.09.2014 DOES NOT PROHIBIT FOR GRANT OF PERMIT FOR THE ROUTE PROPOSED BY THE PETITIONERS BEYOND THE B.T.S. SCHEME VIDE ANNEX-T & ETC.
THESE PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have challenged the orders passed by the 2nd respondent dated 14.10.2014 in rejecting the application for grant of permit for the route Devanahalli to Bangalore District Border vide Annexures-Q1, Q2, Q3 and Q4, etc.
2. Petitioners contend that they filed applications for grant of stage carriage permits on 18.8.2012 on the route Devanahalli to Bangalore District Border and back – two trips per day. In pursuance of the same, a notice dated 7.9.2012 was issued for conducting the joint route survey by the 1st respondent along with the representative of KSRTC and also BMTC and a joint route survey report was issued indicating the total distance of the route, condition of the route and regarding intersection of the Schemes on the route. The petitioners made representations on 11.7.2013 requesting to grant permit between Devanahalli to Bangalore District Border. The said matter was taken up in the proceedings dated 7.12.2013 and the matter was deferred only on the ground of proposed modification of BTS Scheme. Being aggrieved, the petitioners filed writ petition Nos.14709-713/2014 before this Court which came to be disposed of with a direction to the 1st respondent-R.T.A. to take up the matter and consider the application filed by the petitioners, in accordance with law. Subsequent to the said directions issued by this Court, a notice was issued to the petitioners, directing them to appear on 16.6.2014 to conduct a joint route survey. 1st petitioner on behalf of the other petitioners filed a representation on 12.6.2014 giving a reply to the notice dated 4.6.2014. The said notice dated 4.6.2014 was challenged by the petitioners before this Court in W.P.Nos.42579-583/2014. However, on the submission made by the 2nd respondent that the matter will be considered by the 1st respondent in the meeting scheduled on 14.10.2014 and orders will be passed, writ petitions came to be disposed of directing the 1st respondent to consider the application submitted by the petitioners seeking grant of stage carriage permit before the end of October, 2014. In pursuance of the orders of this Court, the 2nd respondent on 13.10.2014 conducted the route survey without notice and not providing an opportunity of hearing to the petitioners and proceeded to reject the application on the ground that the entire route from Devanahalli to Bangalore District Border comes under BTS Scheme. Hence, these petitions.
3. Learned counsel Sri.Puttige R.Ramesh, appearing for the petitioners submits that no further joint route survey was necessary in view of the categorical observations made by this Court in W.P.Nos.42579-83/2014 based on the assurance of the 2nd respondent before the Court that, the matter will be taken up in the next meeting which was scheduled on 14.10.2014 for consideration of the applications. Surprisingly, the joint route survey was conducted on 13.10.2014, after hearing the parties on 14.10.2014, time was granted till 25.10.2014 to submit the written submissions, but finally, applications were rejected on the same day. The rejection of the applications on the basis of the joint route survey said to have been conducted on 13.10.2014 in the absence of the petitioners is arbitrary, perverse and contrary to the fundamental principles of natural justice. Accordingly, he seeks for allowing the writ petitions and grant permits as prayed for in the application, declaring the notification issued by the 1st respondent dated 30.9.2014 does not prohibit for granting permit for the route proposed by the petitioners beyond the BTS Scheme.
4. Sri.Palakshaiah, learned counsel appearing for the KSRTC, submits that pursuant to the orders passed by this Court in W.P.No.42579-583/2014, the proceedings were concluded on 14.10.2014 after hearing the parties and rightly the 2nd respondent rejected the applications for grant of stage carriage permit for the reason that, portion of the route sought by the petitioners falls within the BTS Scheme. To comply with the time bound order passed by this Court, the 2nd respondent conducted a joint route survey due to the changed circumstances of the modified BTS Scheme dated 30.9.2014. The modified route of the petitioners is overlapping the modified BTS Scheme and as such, the petitions are bereft of any substance and require to be dismissed.
5. Sri.Hareesh Bhandary, learned counsel appearing for respondent No.4 supporting the arguments of the learned counsel for the 5th respondent submits that the petitioners have not challenged the BTS modified Scheme published in the notification dated 30.09.2014. The said modified Scheme contemplates that the BTS Scheme is applicable to all types of permit and only exemption was granted under the original scheme as to moffusil services operated beyond the BTS area, the petitioners are not entitled for any stage carriage permit in view of this modified scheme. The portion of the route overlaps the notified route. Hence, the Authority was justified in rejecting the applications.
6. Learned Addl. Govt. Advocate appearing for respondents No.1 to 3 would contend that the writ petitions are not maintainable in view of the undertaking given by the petitioners before this Court in W.P.Nos. 14709-713/2014 in as much as to restrict their claim to the remaining portion, if there is any overlapping of the route, due to the BTS Scheme. On the joint route survey conducted on 13.10.2014, it is evident that the portion of the route claimed by the petitioners overlaps the portion of BTS Scheme. Hence, non-issuing of notice to the petitioners regarding the joint route survey would not vitiate the proceedings of 14.10.2014, no purpose would be served in remanding the matter to the Authorities to re-do the joint route survey after issuing a notice to the petitioners.
7. In addition to these arguments, all three learned counsel appearing for the respondents submit that these writ petitions are not maintainable for not exhausting the alternative and efficacious remedy available under the statute.
8. Heard the learned counsel for the parties and perused the material on record.
9. The petitioners have filed applications for the stage carriage permits as on 18.8.2012. Subsequent to the joint route survey report, they have curtailed the routes by applications dated 11.7.2013. This is third round of litigation. As could be seen, this Court directed the 1st respondent to take up the matter and consider the applications filed by the petitioners in accordance with law as expeditiously as possible, on any date within three months from the date of receipt of the copy of the order. On the notice of the 2nd respondent proposing a joint route survey for grant of fresh stage carriage permit, the petitioners filed W.P.Nos.42579-583/2014, this Court passed an order in the following terms:
“It is prima facie clear that notice issued for conducting joint route survey on 04.06.2014 vide Annexure-M is intended only to delay/defeat the implementation of the direction issued by this Court on 07.04.2014 in W.P.Nos.14709-713/2014, particularly in the light of the joint route survey already conducted on 28.09.2012 as is evident from Annexure-F. Hence, the 2nd respondent- Secretary, RTA, Bangalore Central is directed to submit his explanation in this regard. He is directed to be present before this Court on 06.10.2014 along with the explanation.”
10. Pursuant to the said order, 2nd respondent was present before Court and on the assurance made by him that the matter will be taken up in the next meeting scheduled on 14.10.2014, the writ petitions came to be disposed of. Indisputably, no notice was issued to the petitioners while conducting the joint route survey on 13.10.2014, which goes to the root of the matter. Natural justice is the rule on which public confidence is reposed. It marks the procedural fairness to ensure a fair decision being reached. Any joint route survey conducted without notifying the affected parties would be void ab initio. The phrase ‘joint route survey’ suggests that affected parties are to be present at the time of the joint route survey. Non notifying the petitioners would not may alter the final decision as contended by the learned counsel for the respondents, but while making judicial review under Articles 226 and 227 of the Constitution, what is relevant for this Court to consider is the decision making process rather than the decision itself.
11. The factual matrix of the case as narrated above indicates that the proceedings were conducted on 14.10.2014, joint route survey was conducted on 13.10.2014 in the absence of the petitioners. On 14.10.2014, respondent No.1 directed the parties to file the written submissions by 25.10.2014 but final orders were passed on the same day i.e. on 14.10.2014. This decision making process is arbitrary, capricious and is vitiated, cannot stand the test of reasonableness. It is well settled legal position that alternative remedy available under the statute cannot be a bar for the petitioners to approach this Court under Articles 226 and 227 of the Constitution of India when the fundamental principles of natural justice are violated. Hence, the arguments canvassed by the learned counsel for the respondents to reject the petitions in limine has no force and is negatived.
12. The changed circumstances of the modified BTS Scheme notified on 30.9.2014 would necessarily call for a fresh joint route survey and the same cannot be construed as unnecessary in view of the joint route survey earlier conducted in the year 2012. However, the same should be conducted in a particular manner notifying the parties affected/involved.
13. The arguments advanced at the hands of the learned counsel for the respondents that the BTS Scheme has expanded and the route now claimed by the petitioners overlaps the notified BTS Scheme are all disputed questions as the same being disputed by the petitioners. No route survey can be conducted unilaterally without following the procedure. Given the changed circumstances, this Court is of the view that the impugned orders at Annexures-Q1 to Q4 are not passed in accordance with law and deserve to be set- aside and are accordingly quashed. The matters are remanded to the respondent No.1 to re-consider the applications of the petitioners for grant of stage carriage permit after conducting the joint route survey, notifying the petitioners and appropriate orders shall be passed in accordance with law, as expeditiously as possible.
14. Since all the parties are represented through their learned counsel, are hereby directed to appear before the 1st respondent to conduct the joint route survey on 18.4.2017 without waiting for any notice. 1st respondent shall conduct the joint route survey on 18.4.2017 and thereafter, shall pass the orders in accordance with law, as expeditiously as possible.
Writ petitions are disposed of in terms of the above.
Sd/- JUDGE ln.