IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI WRIT PETITION No.23418/2012 (MV) BETWEEN:
Sri. Melvin Lewis S/o Sri. Nobert Lewis Aged about 45 years, Bus Operator, Yadapadavu, Shibarikere Post, Mangalore, D.K. … Petitioner (By Sri. Puttige R. Ramesh, Adv.) AND:
1. The Karnataka State Transport Authority, Bangalore, 5th Floor, M.S.Building, Dr.Ambedkar Veedhi, Bangalore-560 001.
By its Chairman.
2. Smt.Shalini Jain, W/o Rathnakar Jain, Jain Travels, Korangalapadi, Mangalore, D.K.
(permit transferred from Smt.K.Lakshmi w.e.f. 31.7.2004) ... Respondents (By Sri.E.S.Indiresh, AGA for R-1 and Sri.M.E.Nagesh, Adv. For C/R-2) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order passed by respondent No.1 dated 16.12.2003 in Sl.No.377/Sub.No.88/2002(d) vide Annexure-C in granting the variation of condition of permit No.75/DK/99-00 and the order passed by the Tribunal dated 28.10.2011 in dismissing the Appeal No.2153/2007 filed by the petitioner vide Annexure-P.
This Writ Petition coming on for preliminary hearing ‘B’ group, this day, the Court made the following:
O R D E R In the instant petition, the petitioner has assailed the orders dated 16.12.2003 and 28.10.2011 of the Chairman and Member, Karnataka State Transport Authority, Bengaluru (for short ‘KSTA’) and Karnataka State Transport Appellate Tribunal, Bengaluru (for short ‘Tribunal’), respectively.
2. The petitioner had the permit from Mangaluru to Moodabidri in the year 1992-93. He is aggrieved by the variation of conditions of permit granted to one Smt.K.Lakshmi dated 16.12.2003. Smt.K.Lakshmi had permit from Mangaluru to Karkala via Kaikamba, Moodabidre for two rounds and Mangalore to Ganjimutt via Gurukula, Kaikamba for one trip. The said permit was granted in the year 1999 and it was in force up to 2.11.2004. In this background, Smt.K.Lakshmi filed an application for variation of conditions of permit on 16.7.2001. After due consideration of her application, she was granted variation of conditions of permit in between Mangaluru and Karkala. Feeling aggrieved and dissatisfied and that petitioner’s business would be affected, the petitioner herein had filed Appeal No.2153/2007 before the Tribunal against the order of the STAT dated 16.12.2003. The Appellate Tribunal set aside the variation of conditions of permit dated 16.12.2003 by order dated 31.8.2009 and it was subject matter of W.P.Nos.28713-28718/2009 before this Court. The said Writ Petition was disposed of on 8.10.2009. During the pendency of the appeal before the Appellate Tribunal on 31.7.2004, the permit was transferred from Smt. K.Lakshmi to the present second respondent-Smt.Shalini Jain. Feeling aggrieved by the order of the learned Single Judge dated 8.10.2009 in W.P.Nos.28713-28718/2009, Writ Appeal Nos.3848-
3853/2009 c/w W.A.No.3879/2009 were filed, which were also disposed of on 1.12.2009 while remanding the matter to the KSTA.
3. Appeal filed by the petitioner in No.2153/2007 was decided by the Appellate Tribunal while allowing the appeal on 27.5.2010. The second respondent filed W.P.Nos.23504-508/2010 and W.P.No.23510/2010, which were dismissed by this Court on 14.2.2011. Against which, the second respondent filed W.A.Nos.2772-2776/2011 and W.A.No.2777/2011 wherein, the Division Bench while disposing of the Writ Appeals on 8.8.2011 remanded the matter to the Appellate Tribunal. The Appellate Tribunal dismissed the petitioner’s appeal on 28.10.2011. Pursuant to the order of the Appellate Tribunal dated 28.10.2011, on 13.6.2012, timings for the second respondent was assigned with reference to the grant dated 16.12.2003, against which Appeal No.153/2013 was preferred and it was dismissed on 12.2.2015. One Balakrishna Rai feeling aggrieved by the rejection of appeal in 2266/2007 on 28.10.2011, filed in W.P.No.18667/2012 which was disposed of on 8.6.2017 as it had become infructuous. Thus petitioner presented this petition.
4. Counsel for the petitioner vehemently contended that variation of conditions of permit granted to the second respondent amounts to new permit in terms of sub-section (3) of Section 80 of the Motor Vehicles Act, 1988 (for short ‘MV Act’). Further it was contended that timings can be granted in terms of the permit. On these counts, second respondent cannot run the motor vehicle for the third round from Mangaluru to Karkala. The learned counsel for the petitioner relied on notification dated 6.4.1993 issued by the District Magistrate under Section 115 of the MV Act. He has also relied on two decisions in Neelakanteshwara Motor Service Vs. Karnataka State Transport Appellate Tribunal and Other (AIR 2013 Karnataka 7) (para 4) and Full Bench decision of this Court passed in W.A.No.629/98 and connected matters-S.Sadananda Chadra Vs. R.Gopal and others disposed of on 7.9.1998 (paras 10 and 11) to contend that grant of variation of conditions of permit to the second respondent dated 16.12.2003 would be contrary to sub-section (3) of Section 80 of the MV Act read with notification dated 6.4.1993 passed under Section 115 of the MV Act.
5. Per contra, learned counsel for second respondent submitted that saving clause under the notification dated 6.4.1993 (Annexure-Q) is required to be taken note of. It was contended that second respondent had the permit from Mangaluru to Karkala for two rounds. By virtue of variation of conditions of grant permit dated 16.12.2003 what has been granted is additional trip from Mangaluru to Karkala. Notification dated 6.4.1993 would not be a hurdle for the second respondent to use the motor vehicle for additional trip from Mangaluru to Karkala in view of proviso (i) of sub-section (3) of Section 80 of the MV Act to the extent that there is vaiation to the conditions stipulated in the proviso. In other words, the second respondent had the permit from Mangaluru to Karkala via Gunjimutt. Now what has been extended under variation of conditions of permit is one additional trip from Mangaluru to Karkala. It was further submitted that under the notification dated 6.4.1993, second respondent is entitled to run the motor vehicle from Mangaluru to Karkala which has been saved in resepct of existing permits. Further the learned counsel for the second respondent pointed out that later notification dated 11.9.2013 issued under Section 115 of the MV Act wherein also saving clause has been incorporated to such of those permits prior to 11.9.2013 to run motor vehicle from one point to another. It was further submitted that the cited decisions have no application to the present case since the decision in Neelakanteshwara Motor Service (supra) relates to a particular scheme and Full Bench decision of this Court is relating to grant of fresh permit and not relating to variation of conditions of permit. The learned State counsel supported the order of the Chairman and Member, Karnataka State Transport Authority, Bengaluru dated 16.12.2003 and the order of the Karnataka State Transport Appellate Tribunal, Bengaluru dated 28.10.2011 and further the timings fixed by the competent authroity on 13.6.2012. He has relied on proviso (i) of sub-section (3) of Section 80 of the MV Act. It was pointed out that the petitioner has failed to question the timings that is fixed for the second respondent vide endorsement dated 31.7.2004 read with 13.6.2012. Hence, no interference is called for.
6. Heard the learned counsel for the parties.
7. Crux of the matter in the present petition is, ‘Whether grant of permit dated 16.12.2003 r/w order of the Appellate Tribunal dated 28.10.2011 vide Annexures-‘C’ and ‘P’ are in terms of proviso to sub- section (3) of Section 80 r/w Section 115 of the MV Act or not’.
8. Undisputed facts are that Smt.K.Lakshmi was the original permit holder to run the motor vehicle from Mangaluru to Karkala was in vogue from 1999 to 2004. She had submitted an application for variation of conditions of permit on 16.11.2001 and it was granted on 16.12.2003. It is undisputed that making application for grant of variation of conditions of permit amounts to new permit as is evident from sub-section (3) of Section 80 of the MV Act. On 31.7.2004 permit which stood in the name of Smt.K.Lakshmi got transferred in the name of Smt.Shalini Jain–second respondent herein. The contention of the petitioner that grant of permit dated 16.12.2003 amounts to new permit and therefore second respondent is not permitted to enter Mangaluru for the third trip (additional trip) in terms of grant permit dated 16.12.2003 in terms of notification dated 6.4.1993 issued by the District Magistrate pursuant to Section 115 of the MV Act. Reading of proviso (i) and (ii) of sub- section (3) of Section 80 of the MV Act r/w saving clause in the notification dated 6.4.1993 Annexure-Q, it is evident that such of those permit holders were extended the benefit of permit. In the present case second respondent had the permit from Mangaluru to Karkala. Under variation of conditions of permit what has been improved is additional trip from Mangalore to Karkala. When the second respondent was permitted to enter into Mangaluru for two rounds, there was no hurdle for the third round. Notification dated 6.4.1993 do not specify that if a permit holder was already entering into the restricted area by virtue of earlier permit i.e., prior to 6.4.1993. That apart provisio (i) of sub-section (3) of Section 80 of the MV Act read as under:
“80(3)(i) in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometres;
The aforesaid clause relates to where the termini shall not be altered. In the present case, there is no altration of termini. In other words, the termini is required to be examined with reference to starting and end point. Mangaluru and Karkala could be termini point for the second respondent. There is no definition of termini to assume that it amounts to start or end point.
9. The cited decision in Neelakanteshwara Motor Service (Supra) and the the dicision of the Full Bench in W.A.No.629/1998 and connected matters have no application to the present case for the reason that in the case of Neelakanteshwara Motor Service, the matter relates to a particular scheme and the Full Bench decision is not relating to variation of conditions of permit and it is relating to grant of fresh permit. In both the cited decisions, interpretation of proviso to sub-section (3) of Section 80 of the MV Act read with saving clause of notification dated 6.4.1993 are not the subject matter. Hence, the cited decisions are hereby distinguished. That apart, the petitioner has not questioned the validity of the timings assigned to the second respondent vide endorsement dated 31.7.2004 and further pursuant to the order of the Appellate Tribunal dated 28.10.2011, fresh timings are fixed on 13.6.2012. At this stage, it is to be noticed that timings fixed on 13.6.2012 was subject matter of Appeal No.153/2013 wherein it was upheld on 12.2.2015. Even the order of the KSTA dated 16.12.2003 was subject matter of W.P.No.18667/2012 filed by Balakrishna Rai which was disposed of on 8.6.2017 as it had become infructuous. In view of these facts and legal aspects narrated supra, that the petitioner has not made out a case for interference in the orders dated 16.12.2003 and 28.10.2011 at Annexures-‘C’ and ‘P’.
10. In view of the forgoing discussions, orders dated 16.12.2003 and 28.10.2011 at Annexure ‘C’ and ‘P’ are upheld.
11. Accordingly, the petition stands dismissed.
12. Interlocutory applications, if any pending, would stand disposed of.
Sd/- JUDGE RS/*