Sri A. Somashekar vs The Secretary and Sri Yeshawanth

A.N. Venugopala Gowda, J.—Petitioner is a holder of a stage carriage permit valid up to 01.01.2014 having identical common route with that of respondent No. 2 between Mahadevapura to Arakere and back. Petitioner has questioned in R.P. No. 1595/2012, an order of renewal of permit of respondent No. 2, before the Karnataka State Transport Appellate Tribunal, Bangalore (for short ''the Tribunal''). In the said revision petition, an interim order of stay of the renewal of permit of the 2nd respondent was passed on 01.01.2013. Respondent No. 2 having filed an application on 27.02.2013 for grant of temporary permit, the 1st respondent issued an endorsement dated 28.02.2013, declining to grant the temporary permit on the ground that the order of stay passed in R.P. No. 1595/2012 on 01.01.2013 is in operation. Respondent No. 2 having filed another application on 19.03.2013 for grant of temporary permit, the 1st respondent issued an endorsement of rejection on 20.03.2013. Assailing the endorsements as at Annexures-A and B, the 2nd respondent has filed Appeal Nos. 532/2013 and 709/2013 in the Tribunal. Applications filed by the petitioner under Rule 90 of the Karnataka Motor Vehicles Rules, 1989, to permit him to come on record as respondent No. 2 in the said appeals having been opposed the appellant and the Tribunal having rejected the applications, by identical but separate orders passed on 10.07.2013, vide Annexures-E and F, assailing the orders, these writ petitions have been filed. Sri B.R. Sundararaja Gupta, learned advocate for the petitioner, by placing the reliance on the decision in the case of D.L. Sadashiva Reddy Vs. P. Lala Sheriff and Others, firstly contended that the rejection of the applications for impleading in the appeals is unjust and illegal. Secondly, the Tribunal has not considered the applications in accordance with law. He submitted that the petitioner would be affected, if, a temporary permit were to be ultimately granted in favour of the respondent No. 2 herein. Thirdly, the rejection of the applications has occasioned the failure of justice.

Sri Ajit Shetty, learned advocate for the 2nd respondent, on the other hand contended that in the facts and circumstances of the case, the Tribunal is justified in rejecting the applications, more particularly in view of the petitioner having questioned the renewal of permit No. 1/2004-05 of the 2nd respondent in R.P. No. 1595/2012, which is also devoid of any merit.

The Tribunal has rejected the applications on the ground that, if, it comes to the conclusion that rejection of the applications filed for grant of temporary permit by the Regional Transport Authority, Mandya, then the appeal would be allowed by setting aside the order impugned and the matter would be remitted to the 2nd respondent for reconsideration because, it cannot grant temporary permit and as such, the applicant''s presence is not required to decide the question involved in the appeals.

From the record it is clear that the resolution passed by the RTA, Mandya, in subject No. 77/96-97 dated 03.12.2011 and 25.02.2012 renewing the stage carriage permit bearing No. 1/2004-05 for a period of five years has been questioned in the Tribunal in R.P. No. 1595/2012 and an interim order has been passed, on account of which the permit holder-Y. Yashavanth, has not been operating the service. First respondent rejected the prayer of the 2nd respondent for grant of temporary permit, by issuing the endorsements, as at Annexures-A and B, on account of the pendency of R.P. No. 1595/2012 and the operation of the interim order passed therein on 01.01.2013. In the circumstances, the point for consideration is whether the petitioner is a necessary and proper party in appeal Nos. 532 and 709 of 2013?

It is not in dispute that the petitioner is a holder of a stage carriage permit bearing No. 119/98-99 valid up to 01.01.2014 having identical common route with that of respondent No. 2 between Mahadevapura to Arakere and back. In the case of Sadashiva Reddy (supra), the writ petitions having been disposed of on a preliminary point namely that, the rival operator who could not assail the grant, cannot assail the timings also, in the writ appeals, the question raised for consideration was, whether the rival operator has no right to challenge the assignment of timings by resorting to S. 90 of the Act. While answering the said question it has been held as follows:

Even the observations of the judgment in Mithilesh Garg''s case relied upon by the High Court of Kerala does not support the view that the grant of a permit cannot be questioned by a rival operator. Basically, in the Motor Vehicles Act of 1939, grant of a permit depended on the establishment of a need for the introduction of a stage carriage service and for that purpose, sections 47 and 57 had been enacted. Subject to Chapter VI, Section 72 and 80 of the Act of 1988 has changed the whole basis and grant of a permit is the rule and the rejection is the exception. From this circumstance an inference that there is no right given to an existing operator to challenge the grant, on the ground that it is illegal or improper cannot be inferred. The decision in AIR 1933 Ker. 191, in our opinion, cannot be regarded as an authority for the proposition that a rival operator cannot challenge the grant of a stage carriage permit or: the grounds specified in Section 90 of the Act.

The Division Bench has held that a rival operator on making allegation which prima facie demonstrates a grievance which calls for examination, is entitled to have revision examined or merit in accordance with law and cannot be thrown out on the threshold on the ground that he has no grievance. The decision in R.P. No. 1595/2012 will have a bearing on the pending appeals.

Since, R.P. No. 1595/2012 filed by the petitioner against the respondents, questioning the renewal of 2nd respondent''s stage carriage permit bearing No. 1/2004-05 for a period of five years vide a resolution in Subject No. 77/96-97 dated 03.12.2011/25.02.2012 is pending, the view taken by the Tribunal to reject the applications filed by the petitioner, noticed supra, is unjust and illegal and warrants interference.

Having considered the applications filed by the petitioner for impleading in Appeal Nos. 532/2013 and 709/2013 and also the fact that R.P. No. 1595/2012 filed by the petitioner as against the respondents is pending, petitioner being a person who is likely to be affected by the decision that may be rendered in appeals, in my opinion is a necessary and proper party. The said appeals and R.P. No. 1595/2012 are required to be decided together, to avoid multiplicity of proceedings.

In the result, it is ordered as follows:

1) Writ petitions are allowed and the impugned orders are quashed.

2) I. As. filed by the petitioner before the Tribunal for impleading as respondent No. 2 in Appeal Nos. 532/2013 and 709/2013 stand allowed. Petitioner be permitted to come on record of the appeals as respondent No. 2. Consequential amendment in the cause title of the appeals be incorporated within two weeks'' period.

3) Appeal Nos. 532 and 709 of 2013 be taken up for consideration along with R.P. No. 1595/2012 and decided within a period of six weeks from the date a copy of this order becomes available to the Tribunal, if necessary by proponing R.P. No. 1595/2012 to the date to which the appeals are posted.

No costs.