Temporary Permit Can’t Be Issued To Pvt Carrier On Notified Routes Served Sufficiently By State Transport Undertaking: SC [Read Judgment]

“A temporary permit cannot be issued to a private stage carriage operator to traverse on the notified route which is being served by the State Transport Undertaking (STU), in excess of the permissible distance provided under the scheme,” the Supreme Court said on Wednesday.

A bench of Justice Kurian Joseph, Justice Mohan M Shantanagoudar and Justice Navin Sinha said so while deciding an appeal filed by the Kerala State Road Transport Corporation against the decision of the Kerala High Court to the effect that the Regional Transport Authority may exercise power conferred on it by the proviso to Section 104 of the Motor Vehicles Act, 1988 to grant temporary permits to private carrier operators on notified routes.

The case revolves around a government order issued by the State of Kerala on July 14, 2009, notifying a new scheme in exercise of its powers conferred by Section 100 of the Act for the purpose of providing convenient, adequate, economical and properly coordinated passenger road transport services.

As per the said scheme, the route of Kottayam-Kozhikode was made a notified route. Clause 4 of the said scheme provided that the services to be operated by the State Transport Undertaking along the notified route were to the exclusion of private stage carriages operating in the said route.

It provided that the permits which were already issued to the private sector prior to 09.05.2006 will be allowed to continue until the date of expiry of the respective permits. Thereafter, regular permits will be granted to them. However, as and when the STU applies for introducing a new service on the route, the corresponding number of existing private stage carriage permits in the said route, whose permits expire first after the filing of the application by the STU, shall not be renewed.

Clauses 5(c) and 6 of this scheme provided that private services would be allowed to pick up and drop passengers between any two places on the route covered by the scheme, if and only if the route of the private stage carriage overlaps the notified route maximum to an extent of 5 km or 5% of the length of its own route (whichever is less) for purposes of intersection.

Baby PP, a private stage carrier operator, applied for a temporary permit under the proviso to Section 104 of the Act before the Regional Transport Authority to run services for the route Pallissery-Angamaly-Perumbavoor. Total length of this route is 28 km.

The RTA rejected the application stating that part of the route from Angamaly to Perumbavoor is 13 km in length and it objectionably overlaps with the notified route of Kottayam-Kozhikode beyond the permissible limit as contemplated by 2009 scheme.

Baby PP moved STAT against this order which allowed its plea in part and remanded back to STAT for reconsideration.

It then moved the high court along with other similarly placed parties.

The high court allowed their plea while observing that, “…petitioners failed to establish a case that the 1st respondent or any other private operator is not entitled to get a temporary permit, overlapping on a notified route, by invoking proviso to Section 104 of the Act. State Transport Authority or Regional Transport Authority, as the case may be, as a temporary measure and until STU puts vehicles on the route, can grant temporary permits to cater the need of travelling public”.

Aggrieved, the state road transport corporation approached the apex court on the issue whether a temporary permit can be granted to a private stage carriage operator on a notified route (which is already being served by the STU) for a distance that exceeds the permissible limit provided under the scheme, that too not for intersecting but for merely traversing and consequently overlapping its service on the notified route.

Senior advocate V. Giri, appearing for the KSRTC contended that no person other than the STU can operate on the notified route except as provided in the Scheme and the KSRTC is plying sufficient number of buses on the route.

Senior advocate R Basant, appearing for Baby PP, submitted that the scheme does not render the proviso of Section 104 of the Act otiose and temporary permits can be granted when the route is unserved or underserved by STU as the state body has failed to prove that it is plying sufficient number of buses on the route Palliserry-Angamaly-Perumbavoor for which Baby PP has a claim for temporary permit.

The apex court referred to Sections 99 and 100 of the Motor Vehicles Act under which the scheme had been formulated and also the observations of a constitution bench in a 1985 case titled  Adarsh Travels Bus Service and Anr. vs. State of U.P. and Ors., wherein it was held that the government could provide for carrying on of a service to the total exclusion of all the citizens; it may exclude some of the citizens only; it may do business in the entire state or a portion of the state, in a specified route or part thereof.

“Since the Scheme on hand partially excludes private stage carriage operators on the notified route, the same is to be adhered to. It is necessary in the public interest that road transport services on notified routes should be run and operated by the STU to the complete or partial exclusions of private stage carriage operators. In a State where the scheme has been published, subject to such scheme formulated by the State, no private stage carriage operator can operate beyond the stipulations of the scheme. This also applies to applications for temporary permits under the proviso to Section 104 of the Act,” the bench said.

“In the matter on hand, it is the case of the STU that it has been running 452 buses (covering 770 trips) every day on part of the notified route, i.e., from Angamaly to Perumbavoor, wherein overlapping of 13 kms is claimed. So far as the route from Angamaly to Perumbavoor is concerned, the same is undisputedly a notified route. The STU thus has the exclusive right or monopoly to ply its stage carriages and obtain the required permit as per the Scheme to the exclusion of private stage carriage operators. The proviso gives only a limited breath of life to the private sector, viz., only if the vehicles of the STU do not operate on the notified route as per the scheme, in which event temporary permits may be granted to the private stage carriage operators.

“In the matter on hand, undisputedly, more than 450 buses of the STU ply everyday on the notified route which pass from Angamaly to Perumbavoor. It is not open for the respondent no.1 to claim that the STU is not running sufficient buses from Palliserry to Perumbavoor via Angamaly. Admittedly, Palliserry to Angamaly is not a notified route,” the apex court said.

Noting that STU is plying eight trips from Palliserry to Perumbavoor via Angamaly, besides a sufficient number of private sector services from Palliserry to Angamaly, the court was also informed that the STU may provide more buses if required between Palliserry and Angamaly.

“Moreover, it is open for the respondent no.1 to seek permission as per law before the concerned authority and ply its buses on the non-notified route. However, when it comes to operating on the notified route, that is, in between Angamaly and Perumbavoor, the respondent no.1 cannot operate its services for more than 5 km or 5% of its route (whichever is less),” the bench held.

On the contention of inconvenience caused to public due to insufficient service, the court said, “It is quite well known that under the guise of permits over longer routes covering shorter notified routes, or overlapping parts of notified routes, such permits are more often than not mis-utilized, since it is well nigh impossible to keep a proper check at every point of the route. If indeed there is any need for protecting the traveling public from inconvenience…the STU and the Government will make sufficient provisions in the Scheme itself to avoid inconvenience being caused to the traveling public”.