DATED : 22-12-2006
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE J.A.K. SAMPATH KUMAR WRIT PETITION Nos.17464 of 2004, 22302, 22303, 33972, 38263 of 2003, 13291, 15441 to 15443, 15688, 15689, 16209, 16210, 18879, 18880, 18881 to 18884, 18885, 19466, 19467, 19697, 19835, 19906, 12460, 831, 832, 1167 to 1171, 1534, 1776, 2201 to2203, 2735 to 2737, 11273 to 11275 of 2004, 1152 and 3092 of 2005, 3817, 3818, 4301, 4321, 4322, 4585 to 4589, 4409, 14286 of 2004, 2363 of 2001, 6635 of 2006, 2524 of 2004, 26300 and 26301 of 2001, 463 to 476, 4086 to 4093 of 2002 and 26039 of 2003
AND
WPMP.Nos.20741 of 2004, 27609, 27610, 2104, 2105, 41167, 46444 of 2003, 15555, 18338, 18340, 18623, 18624, 19144, 19145, 22629, 22630, 22631 to 22635, 23414, 23415, 23679, 23847, 23961, 1158 to 1162, 1521, 1805, 2250 to 2254, 2820 to 2822, 13225 to 13227 of 2004, 1100, 3186, 6866 and 6229 of 2005, 4490, 4493, 5066, 5086, 5088, 28952, 28953, 5400, 5402, 5404, 5406 of 2004, 620 to 623 of 2005, 5205 of 2004, 3195 of 2001 and 1 of 2006,
V.R. Palaniappan .. Petitioner in WP.17464/04 vS.
1. The Regional Transport Authority,
Madurai South, Madurai.
2. Tamil Nadu State Transport Corporation, Rep. by the Managing Director,
Madurai I Division,
Madurai. .. Respondents in WP.17464/04 For Petitioners : Mr.V.T. Gopalan,
(Madurai Corporation) Senior Counsel for Mr.P. Srinivas
For Petitioners : Mr.M. Palani
For Petitioners : Mr.C.R. Krishnamoorthy For Respondent-1 : Mr.R. Viduthalai
Advocate General for
Mr. Edwin Prabhakar
Respondent-2 : Mr. Rajnish Pathiyal
(TNSTC)
COMMON JUDGMENT
P.K. MISRA, J
The dispute raised in these two batches of writ petitions is a fall out of establishing Mattuthavani bus stand within the limits of Madurai. Initially, there was one bus stand within Madurai, which was known as Periyar Bus Stand. Subsequently, another bus stand known as Anna Bus commenced at a place on the eastern direction of Periyar Bus stand, which was intended to be used by the private operators and transport Corporation buses catering to the need of the travelers from Trichy, Sivagangai and Ramnad. The establishment of such additional Bus stand was challenged in Revision Petition No.570 of 1981 by The Bus Owners' Association and the Revisional Authority observed that the approval granted by the Regional Transport Authority to the additional bus stand was invalid. However, it is not disputed that as a matter of fact the additional bus stand known as Anna Bus Stand became operational after sometime. Thereafter, by press release dated 25.12.1992, two more bus stands were made functional known as 'Palanganatham Bus Stand', which was on the South West of Periyar Bus stand, and 'Arapalayam Bus Stand', which was towards North West of Periyar Bus Stand. Buses coming from Aruppukottai and Rajapalayam Sectors (from Southern side of Madurai) were directed to operate from Palanganatham Bus Stand and buses coming from Dindugul, Theni and Coimbatore were directed to operate from Arapalayam Bus Stand. Subsequently the Commissioner, Madurai Corporation, initiated the proposal for establishing an integrated bus stand at a place known as 'Mattuthavani' and applied for approval of the bus stand at 'Mattuthavani' and by notification dated 24.5.1999 the Regional Transport Authority (hereinafter referred to as 'RTA'), Madurai accorded temporary recognition to the newly constructed integrated bus stand for a period of six months. It was indicated in such notification that the mofussil buses starting and terminating at Anna Bus Stand shall operate from the new bus stand and similarly the express bus stand functioning from near Periyar bus stand will also be shifted to the new integrated bus stand. Subsequently, by way of Press release on 26.5.2000, the RTA, Madurai directed all the Aruppukottai sector buses operating from Palanganatham Bus Stand to go to Mattuthavani bus stand via., South Gate, Teppakulam, Anna Nagar. This arrangement was continuing till 1.11.2000. However, by proceedings of the RTA dated 30.10.2000 it was directed that no mofussil bus shall ply from Palanganatham Bus Stand. It was further directed as follows :-
"2.(i) All the mofussil buses plying from Thirumangalam side shall take diversion at the Innner Ring Road intersection at Kappalur and reach the new integrated bus stand at Mattuthavani via. the Inner Ring Road. No mofussil bus shall ply beyond Kappalur towards Madurai City. ii) All the mofussil buses coming from Thirumangalam side crossing Madurai in their journey towards Arappalayam Bus Stand and from there to various places shall take diversion at Kappalur intersection, proceed to new Integrated Bus Stand at Mattuthavani and from there to Arappalayam Bus Sand via. Goripalayam, Simmakkal, Madurai Coats Bridge. The same route course is to be followed in the return journey also. They shall not proceed beyond Kappalur towards Thiruparankundram side on any account.
iii) All the mofussil buses coming from Thirumangalam side and proceeding towards Melur crossing Madurai, shall take diversion at Kappalur and proceed to new Integrated Bus Stand at Mattuthavani via. Inner Ring Road. The same route course is to be followed in the return journey also.
iv) All the mofussil buses coming from Kariapatti side shall take diversion at Inner Ring Road intersection near Mandela Nagar and proceed to new Integrated Bus Stand at Mattuthavani via. Inner Ring Road and vice versa. On any account they shall not proceed beyond Mandela Nagar towards Perungudi side.
v) All the mofussil buses coming from Aruppukottai side crossing Madurai and Proceeding towards Theni and Dindigul directions shall take diversion at Inner Ring Road intersection at Mandela Nagar to reach new Integrated Bus Stand at Mattuthavani and from there proceed to Arappalayam Bus Stand via. Goripalayam, Simmakkal and Madura Coats Bridge. The same route course is to be followed in the return journey also.
vi) All the mofussil buses coming from Aruppukottai side and proceeding towards Melur and Sivagangai crossing Madurai, shall take diversion at Mandela Nagar and proceed to new Integrated Bus Stand at Mattuthavani via., Inner Ring Road. This route course is to be followed in the return journey also."
This order of RTA was made effective from 1.11.2000. Subsequently, however, on 25.1.2001, a modified order was passed to the following effect :-
"A) The buses having terminus a quo points at Virudhunagar, Sivakasi, Sathur, T. Kallupatti, Saptur, Vathrayiruppu, M. Kallupatti, Elkumalai, Analkaraipatti, Koompatti and Rajapalayam and coming to Madurai shall reach Integrated Bus Stand (via) Kappalur Ring Road junction, Thirunaga, Thiruparankundram Bye Pass Road, Palanganatham junction, Dindigul Bye-Pass road, Kalavasal junction, Guru Theatre, Alamaram, Thathaneri, Sellur, Thevar statue, Thallakulam and the District Court.
The above buses shall stop only at the following stopping places.
1. Thiruparankundram Park
2. Palanganatham junction
3. Kalavasal
4. Alamaram
5. Kalpalam Membalam junction
6. District Court
The above buses while leaving the Integrated Bus Stand towards the above respective destination shall go (via) Meenakshi Mission Hospital, Melur Ring Road junction, Pandikoil Ring Road junction, Viraganur Ring Road junction, Nedungulam Ring Road junction, Mandela Nagar Ring Road junction and Kappalur Ring Road (via) Thirumangalam.
B) The buses having terminus a quo point at Aruppukottai and coming to Madurai shall reach the Integrated Bus Stand through the existing course namely (via) Mandela Nagar Ring Road junction, Nedungulam Ring Road junction, Viraganur Ring Road junction (turning left side), Theppakulam, PTR Bridge, Anna Nagar, Melamadai junction and Lake View Road.
The above buses shall stop only at the following stopping places;
1. Mariamman Theppakulam
2. Anna Nagar near Ambika Theatre
3. Melamadai junction
The above buses while leaving the Integrated Bus Stand for Aruppukottai shall go (via) Meenakshi Mission Hospital, Melur Ring Road junction, Pandikoil Ring Road junction, Viraganur Ring Road junction, Nedungulam Ring Road junction and Mandela Nagar Ring Road junction.
...
D) All other mofussil buses including State Express Transport Corporation buses (other than those mentioned in para A, B, C above) while coming to Madurai and crossing Madurai City shall use only the Ring Road in both directions."
2. The aforesaid proceedings dated 25.1.2001 was challenged by several operators by filing R.P.Nos.41,70 to 74, 78 to 96, 98 to 100 of 2001. The main contentions raised were to the effect that such proceedings were contrary to the provisions contained in Section 72(2)(xxii) of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") inasmuch as notice period of one month as contemplated was not issued and such order was in violation of Rule 246 of the Tamil Nadu Motor Vehicles Rules (hereinafter referred to as "the Rules"). On the side of the contesting respondents in those cases, it was contended that the main order of the RTA dated 30.10.2000 had become final as such order had not been challenged and such order had been implemented and the subsequent impugned order was merely a modified order, which cannot be challenged without challenging the main order. It was also indicated that such changes were effected in order to relieve the traffic congestion. It is also pointed out that an Integrated bus stand had been notified and therefore issuing a direction to the operators to proceed to public stand or bus stand was valid. Before the State Transport Appellate Transport also reliance seems to have been placed on Section 115 of the Motor Vehicles Act. Ultimately the STAT by order dated 9.11.2001 allowed all the revisions and set aside the order dated 25.1.2001 and remanded the matter to the RTA with a direction to follow the procedure contemplated under Section 72(2)(xxii) of the Act and Rule 246 of the Rules. Such order of the STAT has been challenged by the Commissioner, Madurai Corporation, by filing the following writ petitions, namely, W.P.Nos. 463 to 476, 4086 to 4093, 26300, 26311 of 2002 and 26039 of 2003.
3. While such writ petitions were pending, the Transport Secretary had issued a letter dated 6.2.2004 addressed to different officials including the Collector, Madurai and the Commissioner, Corporation of Madurai enclosing copy of the minutes of the meeting held on 20.8.2003. The relevant portion of the minutes of the meeting is extracted hereunder :-
"3. The Transport Secretary explained the position of the Palanganatham Bus stand and the present operation of buses at Maduai.
4. Since the private operator buses are permitted to operate inside Madurai city to reach Mattuthavani Bus stand via Periyar, Simmakal, public prefer only the private buses. The occupancy ratio of STU buses has come down resulting the revenue loss of about Rs.2 crore per month. To avoid the above revenue loss and inconvenience to passengers, Transport Secretary suggested to re-open the Palanganatham Bus Stand so that all South Bound bushes can take trips from Palanganatham itself (including private operators).
5. Law Secretary also emphasized that in violation of the High Court order, the private operator buses are allowed inside Madurai city - via. Periar bus stand. It is also informed that the RTA, Madurai order directing the buses from Palanganatham Bus stand to Mattuthavani Bus stand is not permissible under Section 72(2) and Sec.115 of M.V. Act.
6. After elaborate discussion, it was decided that as a trial measure to permit all the 85 private buses to terminate and emanate from Palanganatham Bus stand itself in accordance with the interim order of STAT and High Court by re- opening the old palanganatham Mufassil Bus stand for them. Further, the STU buses can be allowed inside Madurai City via Periyar Bus Stand to reach Mattuthavani Bus stand as permitted by the R.T.A. and in the return trips the vehicle shall be operated via Ring road towards South direction. The position may be reviewed after a month."
4. This communication, including the minutes, is the subject matter of the challenge in W.P.Nos.3817 & 3818 of 2004.
5. Initially, these two writ petitions (W.P.Nos.3817 and 3818 of 2004) were filed at the instance of the Bus Operators operating their buses towards Southern side, namely, towards Virudhunagar and Aruppukottai and certain interim directions were issued. Subsequently, other bus operators operating from other sectors have filed several writ petitions seeking for Mandamus. Most of the writ petitions filed in Madurai Bench of Madras High Court have been transferred to the Principal Bench and have been heard along with the other writ petitions.
6. The contentions raised by private operators in such subsequent batch of writ petitions are similar to the contentions raised by the operators in the Revision Petitions which have been filed before the STAT and which had been accepted by the STAT under the impugned orders which have been challenged by the Madurai Corporation.
7. In the above background, the contentions, which are necessary to be dealt with, are as follows :- The impugned orders passed by the RTA have the effect of modifying the permit conditions. In this context, the contention of the operators at Tirumangalam and Virudhunagar sectors is to the effect that as per their original permit conditions they were required to go to Palanganatham bus stand from Kappalur. Such portion of the route is now deleted and on the other hand such operators are now asked to proceed towards Mattuthavani bus stand by taking a different route not contemplated in the original permit. Moreover, such a new route covers a distance of about 27.2 kms, which is in excess of 24 kms. and thus contrary to the provisions contained in Section 72(2)(xxii) as well as the provisions contained in Rule 246. Moreover, the RTA has not complied with the principles of natural justice inasmuch as the private operators had not been given any notice. The operators operating from Aruppukottai sector have also raised similar contentions, save and except the fact that in their case the modified route covers a distance of 17.5 kms. The operators from other sectors have not highlighted any particular grievance.
8. On the other hand, the Madurai Corporation, which has filed the writ petitions challenging the order of the STAT has contended that modification is only implementation of the proceedings of the RTA whereunder Mattuthavani bus stand was declared as integrated bus stand and, therefore, all the bus operators are required to go to Mattuthavani bus stand as per the directions now issued, which are only inevitable consequences. It has been further submitted that while considering the matter, various representatives representing various Bus Owners' Associations had been heard and, therefore, it cannot be said that principles of natural justice had been violated and there has been substantial compliance with the provisions contained in Rule 245(f) and no individual notice was required to be given. It is further submitted that since the permit-holder is required to follow Section 72(2)(xx) and Rule 245(i), once a bus station is specified, the permit- holder is required to use such bus station and to that extent the route permit can be taken to be modified.
9. Learned Advocate General appearing for RTA, apart from adopting the submissions made by the Addl. Solicitor General, who was appearing on behalf of Madurai Corporation, has also submitted that the procedure contemplated in Rule 245(f) was only optional and, at any rate, such procedure being directory and there being substantial compliance, the order passed by the RTA should be upheld and that of the STAT should be set aside.
10. To appreciate the contentions raised by various counsels, it is now necessary to notice the relevant provisions of the Act and the Rules.
According to Section 2(40), "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers either for the whole journey or for stages of the journey.
As per Section 66, occurring in Chapter V relating to control of transport vehicles, no owner of a motor vehicle can use a vehicle as a transport vehicle in a public place save in accordance with the conditions of a permit granted or countersigned by appropriate authority authorising the owner the use of the vehicle in that place in the manner in which the vehicle is being used.
Section 69 envisages filing of application for permit before the Regional Transport Authority of the region in which the vehicle is proposed to be used. Under Section 70, an application for a permit in respect of a stage carriage is required to contain among other things the route or routes or the area or areas to which the application relates. Under Section 72(1), a Regional Transport Authority may grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit. Proviso to Section 72(1) contemplates that no such permit shall be granted in respect of any route or area not specified in the application.
"72(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-
(i)- that the vehicles shall be used only in a specified area, or on a specified route or routes;
. . .
(iv) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area;
. . .
(vi) that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down except at specified points.
. . .
(xx) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use.
. . .
(xxii) that the Regional Transport Authority may, after giving notice of not less than one month,-
(a) vary the conditions of the permit;
(b) attach to the permit further conditions: Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof;
. . . "
11. As per Rule 3(u), "Public stand" means any stand maintained by the Government, local authority or any State Transport Undertaking or other body and notified under rule 245 by the Regional Transport Authority as a public stand for the use of stage carriages, contract carriages or goods carriages, as the case may be.
The relevant portion of Rule 245 of Tamil Nadu Motor Vehicles Rules is quoted hereunder :-
"245. Provision of public stands for public service vehicles.- (a) The local authority shall apply to the Regional Transport Authority for approval of any scheme for construction of a public stand . . .
(b) On receipt of the application referred to in sub-rule(1), the Regional Transport Authority may, in consultation with such other authority as it deems desirable and having regard to the interest of the public generally, approve the scheme with or without modification or refuse to approve the scheme. Every order approving the scheme with or without modification shall remain in force for three years or such shorter period as may be specified in the order and may be renewed from time to time by the Regional Transport Authority by a like order for a further period of not more than three years at a time:
Provided that where the Regional Transport Authority refuses to approve the scheme, it shall after giving an opportunity of making its representation if any, and after recording in writing the reasons for such refusal, communicate a copy of the order to the local authority concerned.
. . .
(d) The local authority shall report to the Regional Transport Authority when the scheme has been implemented. On receipt of such a report, the Regional Transport Authority, may after such enquiry or inspection as it thinks fit, notify the stand as a public stand for the particular class of public service vehicles for which the scheme was approved. A copy of such notification shall be put on the notice board at the Office of the Regional Transport Authority.
(f) The Regional Transport Authority may give an opportunity to the permit holders of the existing stage carriage services in the area while approving a public stand or at the time of its renewal.
(h) The Regional Transport Authority may notify separate stands for stage carriages and contract carriages.
(i) When a public stand within the limits of a local authority has been notified by the Regional Transport Authority, any public service vehicle of that class for which the stand is intended shall make use of that stand for purposes of stationing the vehicle for picking up or setting down passengers:
Provided that where there are two or more public stands notified by the Regional Transport Authority for any particular class of vehicles within the limits of the same local authority, it shall be sufficient that in the case of stage carriages, the stand specified by the Regional Transport Authority from time to time, and in any other case any one of the stand is made use of by such vehicle.
. . . "
246. Fixing or altering stages for the stage carriages.- In the case of stage carriages, the Transport Authority shall after consultation with such other authority as it may deem desirable and after hearing the representation of the operators concerned fix or alter stage of all bus routes. The distance of each stage shall not ordinarily - (a) exceed 5 kilometres in the case of metropolitan, city and town services.
(b) exceed 8 kilometres or be less than 4 kilometres in the case of ordinary services; and (c) be less than 25 kilometres in the case of express service.
Explanation.- When a passenger gets into or gets down from a stage carriage at a place lying in between the stages, fare may be collected from him from the stage preceding the place where he gets into the bus to the stage succeeding the place where he gets down."
12. As per Section 72(2), the Regional Transport Authority may attach to the permit any one or more of the conditions envisaged in clause (i) to (xxiv). Clause (xx) of Section 72(2) is one such contemplated condition which can be attached, which provides that any specified bus station maintained by Government or a local authority shall be used. As per Webster's new World Dictionary & Thesaurus, 'station' means, a regular stopping place, with a shelter, platform, etc., as on a bus line or railroad b) the building or buildings at such a place, for passengers, etc. As per Concise Oxford Dictionary, 9th Edition, the expression "Bus stop" means a regular stopping place of a bus.
"Bus stand" means a centre specially in a town, where buses (specially long distance buses) depart and arrive.
13. As per clause (i) of Section 72(2), the vehicle is required to be used only in a specified area or on a specified route. As per clause (xxii), the Regional Transport Authority may after giving notice of not less than one month, vary condition of the permit or attach to the permit further conditions. The proviso, however, contemplates that the conditions specified in clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kms. It also further contemplates that variation within such 24 kms shall be made only after Regional Transport Authority satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the varied route or part thereof.
14. Rule 245 contains the provision of public stands for public service vehicles, which would obviously include the stage carriages. The application for any scheme for construction of a public stand is required to be made to the Regional Transport Authority, which is to consider by keeping in view the aspects enumerated in Rule 245. Once such approval is given, the local authority is required to complete the scheme and thereafter required to report to the Regional Transport Authority that the scheme has been implemented. On receipt of such report, the Regional Transport Authority may notify a stand as a public stand for particular class of public service vehicles. Such order approving the use of the public stand with or without modification shall remain in force for three years or even shorter period if it is so specified in the order and it can be renewed from time to time for a further period of not more than three years at a time.
As per Rule 245(f), the Regional Transport Authority may give an opportunity to the permit holders while approving a public stand or at the time of its renewal.
15. As per Section 72(2)(i), the condition invariably attached to permit is relating to a specified route or routes. No doubt "route" means a line of travel which specifies the highway which may be traversed by a motor vehicle from one terminus to another. (In a generic sense it may be understood that if the bus has to start from Trichy and the last terminus is Madurai, the route remains the same and merely because the bus stand at Trichy or Madurai is changed, it cannot be said that route is changed. Because, ultimately one terminus continues to be Trichy and the other terminus continues to be Madurai. However, when by virtue of change of bus station, the bus is required to travel on a road not envisaged in a permit, to that extent it can be said that the route is changed.) As per Concise Oxford Dictionary, 9th Edition, "highway" means a public road.
16. Section 72(2)(xxii) empowers the Regional Transport Authority to vary the conditions of the permit after giving notice of not less than one month. The proviso to clause (xxii), however, envisages that such condition shall not be varied so as to alter the distance covered by the original route not more than 24 kms. It has been contended by the learned Senior Counsel appearing for Madurai Corporation that as per clause (xx) any specified bus station maintained by a local authority is required to be used by the operator. According to him, Rule 245 envisages for establishing public stand for any class of public service vehicle. At the time of approval, opportunity of hearIng is given to all concerned and thereafter once such public stand is notified by the RTA as contemplated in Section 245(b), the operator is bound to go to such public stand.
17. In our opinion, even though in a normal case once a public stand is notified, the operator is required to go to such stand, wherein change of bus stand involves alteration of the route, opportunity is required to be given.
18. The next question is whether opportunity, which is required to be given, should be way of issuing individual notice to the different bus operators or a general notice would be sufficient.
19. Chapter V of the Rules relates to Control of Transport Vehicles. Rule 137 relating to service of communications is extracted hereunder :-
137. Service of communications.- (1) Any communication issued by the Transport Authorities or the Executive Officers of such authorities or by the Government or by the Tribunal in respect of matters falling under this chapter may be served by the Executive officers of the Transport Authorities or any other officer authorised by them in this behalf, by any one of the following methods, namely -
(a) by delivery or tender of a copy of the communication to the addressee or his agent or the other person duly authorised to receive such communication on his behalf.
(b) by registered post:
Provided that if upon an attempt having been made to serve the communication by any of the above mentioned methods, the serving officer is satisfied that the addressee is avoiding service or that for any other reason, the communication cannot be served by any of the above mentioned methods the Executive Officer of the Transport Authority concerned shall order the service of the communication by affixing a copy thereof on some conspicuous part of addressee's last place of business or garage as notified by him or where the addressee habitually resides and such service shall be as valid as if the addressee has acknowledged in writing.
(2) When the serving officer delivers or tenders a copy of the communication to the addressee personally or to his agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to and acknowledgement of a service endorsed on the original communication and such person shall comply with such requirement."
20. Since a specific method is contemplated in rule 137, the provisions contained in Rule 248 relating to fixing schedule of timing and providing that it shall not be necessary to send individual notice of timing conference to the operators concerned and it shall be sufficient compliance if the notice giving the existing and proposed schedule of timings, and the time, date and place would be affixed in the notice board and the copy of the notice sent to the applicant and the concerned State Transport Undertaking and bus owners Association of the district, may not be applicable to the communications to be made in respect of other matters. Therefore, notwithstanding the provisions in Rule 248 and negativing the submission made by Mr.V.T. Gopalan, learned Senior Counsel, we are of the opinion that notice is required to be issued in accordance with Rule 137. However, it is made clear that even if the method of issuing notice as contemplated under Rule 137 is required to be followed, mere non-observance of such provision may not be construed as vitiating any order, unless prejudice is shown to have been caused.
21. In the present case, it is not in doubt that at the time when the scheme relating to establishing a public stand was considered, general notice was issued and as a matter of fact many of the representatives of the transport Associations have participated. To that extent, it can be said that the provisions contained in Rule 245, particularly 245(f), have been complied with. Therefore, by declaring Mattuthavani bus stand as a bus stand of Madurai Corporation area as such cannot be said to be illegal or irregular in any way.
22. However, as it apparent from the submissions made by the counsels appearing for all parties, the bus stand in question can be approached from different directions, that is to say, through different roads. The materials on record do not indicate that at the time when the bus stand was notified as a bus stand, the road through which different sector bus operators to approach the bus stand had also been specifically indicated. It appears that even after notifying the bus stand, different authorities including RTA have been issuing various directions regarding the roads to be used by different operators.
23. It is no doubt true that while considering which road is to be used, the appropriate authority is required to consider various factors including the question of congestion on the road, convenience of the pubic and, also while so deciding, the authority cannot discriminate between similar types of public service vehicles. For instance, if a particular road is found to be narrow, it would be quite reasonable for the authority to prohibit the user of heavy vehicles on such road. However, while doing so, the authority is not expected to permit a heavy vehicle belonging to one particular organisation to use the very same road, while prohibiting such user by a similar vehicle belonging to some other person. From the materials on record it appears that in the present case even though the public stand has been notified by following proper procedure, thereafter while changing the routes (roads) any consultation process has taken place. Moreover, the allegations indicate as if the public service vehicles belonging to the State Transport undertaking have been allowed to use particular roads within the city, whereas the same privilege has not been made available to private operators. The basis for such different treatment is also not disclosed. On the other hand the minutes of the meeting held by the Secretary of the Transport Department indicates as if the decision is based on the consideration that the State Transport undertaking buses were sustaining loss and therefore such buses were allowed to ply through the city roads, whereas the private operators were asked to go through the outer ring road. The learned Advocate General has submitted that the letter dated 6.2.2004 was issued with a view to meet the situation arising out of the various interim orders passed by the Courts and there won't be any necessity of such direction once all the matters are finalised.
24. A contention was raised on behalf of the operators that in view of the provisions contained in Section 72(2)(xxii) the condition of the permit to the effect that it shall be used only on a specified route as contemplated in Section 72(2)(i) shall not be varied so as to alter the distance covered by the original route by more than 24 kms and, therefore, by asking the operators to go to Mattuthavani bus stand on a particular road which has extended the route by more than 24 kms is not permissible.
25. As per Section 72(2), the Regional Transport Authority may grant permit for a stage carriage and attach to the permit any one or more of the conditions contemplated in clause (i) to (xxiv). However, as per Section 72(2), attaching of such condition is subject to any rules that may be under this Act.
26. Rule 245, which is part of the statutory rules, contemplates the provision for public stands for public service vehicles. The conditions which are attached to the permit by virtue of Section 72(2) being subject to the Rules, it is obvious that when a provision for public stand for public service vehicles is made and the stand is notified as a public stand for particular class of particular service vehicles, particular permit holder would be required to go to such public stand and the fact that the distance to be covered may be more than 24 kms cannot be a ground to refuse to go to such public stand. However, since it will have the effect of changing the route, opportunity of hearing is required to be given, which is also contemplated in Rule 245(f). Both the provisions are to be harmonized and Rule 245 being a specific rule and since Section 72(2) itself has made it clear that condition can be attached subject to any rule made under the Act, it is obvious that public stand fixed under Rule 245 has to be reached through particular road to be specified by the appropriate authority. However, as already indicated, this should be done only after giving opportunity to the operators. While specifying the road to be used, it is obvious that the Regional Transport Authority is required to keep in view all the relevant facts and circumstances including the convenience of the public as well as the convenience or inconvenience, if any, of the operators.
27. Similarly a contention was raised that as per Rule 246, the distance of each stage should not exceed 5 km in the case of metropolitan, city and town services and should not exceed 8 kms or less than 4 kms in the case of ordinary services. However, as the language itself indicates that it is ordinarily the rule to be followed and there may be a situation which need not be followed. It is therefore obvious that in extra-ordinary situation, the distance indicated can be exceeded or it can be less than the distance indicated. It cannot be held as an inexorable rule that in no case the distance of each stage should be within the parameters indicated in various clauses of Rule
246.
28. For the aforesaid reasons, we summarise the conclusions as follows :-
(1) Once a scheme establishing a public stand has been implemented and report to that effect is submitted, the Regional Transport Authority may notify the stand as a public stand for particular class of public service vehicles for which the scheme was approved. However, the Regional Transport Authority is required to give an opportunity to the permit holders of the existing stage carriages while approving a public stand or at the time of its renewal. (2) When a public stand within the limits of a local authority has been notified by the Regional Transport Authority, any public service vehicle of the class concerned is bound to make use of that stand for the purposes of stationing the vehicle for picking up or setting down passengers. Where there are two or more public stands notified by the Regional Transport Authority, the stand specified by the Regional Transport Authority for particular class of vehicle is required to be made use of by such vehicle. Where, however, there are two or more public stands and the Regional Transport Authority has not specified a particular stand, any one of such notified stand can be made use of by such vehicle.
(3) Where by virtue of notifying a public stand the route becomes altered, the Regional Transport Authority is also required to give opportunity to the concerned permit holders, if such altered route has not been contemplated at the time of notifying the public stand. Where, however, such modified route was in contemplation and had been so indicated at the time of establishing a public stand, obviously giving further opportunity would be redundant. (4) The mere fact that by virtue of change in the public stand the altered route exceeds 24 kms, is not a ground to hold that the permit holders need not go to the public stand in question and to that extent the condition in the permit as contemplated in Section 72(2)(xxii) can be subject to the condition contemplated in Section 72(2)(xx) as well as the requirement under Rule 245. (5) While identifying such road to reach the public stand, the concept of not exceeding 24 kms should be kept in view and should be followed as far as possible and only for good and adequate reason a longer road can be identified. (6) The notice contemplated should be in accordance with Rule 137. However, mere non-service of notice may not ipso facto vitiates the proceedings, if the person aggrieved is not otherwise prejudiced.
(7) While considering the matter, the Regional Transport Authority cannot discriminate between the private operators and the State Transport Undertaking and merely because the State Transport Undertaking buses are plying, they cannot be treated differently as compared to the private operators.
(8) It is open to the Regional Transport Authority to notify different bus stands for buses coming from different directions, obviously keeping in view the convenience of the public and merely because the operators from a particular direction are allowed to use a particular bus stand cannot be a ground for the bus operators coming from a different direction to claim similar facility . There should not be any discrimination among the bus operators similarly situated though there can be different provisions for bus operators who are not similarly situated. (9) Since any condition in the permit can be changed, it would be always open to any individual operator or group of operators to seek for any alteration in the route by filing application, which can always be considered by the Regional Transport Authority in accordance with law.
29. In course of hearing, the learned counsels appearing for the private operators had only concentrated on the bus route coming from the direction of Aruppukottai and Thirumanagalam and it appears that no specific grievance had been raised by any counsel representing the bus operators from other directions, such as Coimbatore, Dindigul, Trichy, etc. In fact they had already acted upon the directions issued by the Regional Transport Authority and came to Court long after interim orders were passed in the writ petitions filed by the Madurai Corporation or by the operators coming from Aruppukottai and Thirumangalam. Therefore, the directions already issued by the Regional Transport Authority in respect of such operators are not interfered with. So far as the bus operators coming from the southern side are concerned, the Regional Transport Authority is required to give opportunity of hearing to such operators before specifying a particular route to be followed to come to Mattuthavani bus stand and to return from such bus stand. Till this matter is finalised, the arrangement as existing on the date of the judgment by virtue of status quo order shall continue only so far as those operators are concerned. So far as other bus operators are concerned, the orders passed by the Regional Transport Authority shall become operational forthwith and all interim orders, if any, are vacated. The matter should be finalised as early as possible, preferably within a period of three months from the date of receipt of the order. The writ petitions are disposed of accordingly. No costs.