@JUDGMENTTAG-ORDER
Aravind Kumar, J.—Heard Sri M.E. Nagesha, learned Advocate appearing for petitioner, Sri Anantha H., High Court Government Pleader for respondents-1 to 3 and Sri Harish Kumar M.S., learned Advocate appearing for respondent 4. Perused the records.
2. Petitioner is seeking for the following reliefs:
"(1) Issue a writ of certiorari quashing portion of the order passed by the Deputy Commissioner and District Magistrate, Udupi, dated 6-2-2014, in No. RTA/CR/5/2013-14C. No. 67170/C-6 vide Annexure-E to the extent allowing to continue the notification dated 31-7-2004, No. 33/04-05 as per Annexure-C.
(2) Direct the 2nd respondent-RTA, Udupi not to grant city stage carriage permits to the 4th respondent as prayed in Sub. Nos. 125/13-14 to 154/13-14 as per Annexure-F."
3. Petitioner is a stage carriage operator operating city services in Udupi and also rural services after having obtained stage carriage permits. As on the date of presenting of this writ petition, petitioner was having the following permits:
(a) Permit No. 1/SK/53(1), Udupi to Moodabidri and back.
(b) Permit No. l/SK/53(ll),. Udupi to Muniyal.
(c) Permit No. 82/DK/90-91, Udupi to Muniyal.
(d) Permit No. 138/DK/90-91, Udupi to Muthalpadi.
(e) Permit No. 16/DK/92-93, Udupi to Muniyal.
(f) Permit No. 37/DK/93-94, Udupi to Perdoor.
(g) Permit No. 86/DK/2000-01, Udupi to Karkala.
(h) Permit No. 9/UDP/2002-03, Kukkehalli to Ambagilu.
Direction issued by the first respondent to second respondent granting exemption as per notification dated 31-7-2004 and granting fresh city stage carriage permits to fourth respondent by order dated 6-2-2014 - Annexure-E is called in question by the petitioner contending inter alia that Deputy Commissioner has arrived at a conclusion that there is traffic density in Udupi Town and has rejected the stage carriage services inside the city but has allowed the continuation of notification dated 31-7-2004 where under services rendered by KSRTC to enter Udupi''s bus stand has been permitted though similar notification was issued on 11-9-2013 by the Deputy Commissioner, Dakshina Kannada District, Mangalore which would indicate that exemption is given to KSRTC buses to operate in inter-district or inter-State routes. It is further contended by the petitioner that taking advantage of the relaxation granted to KSRTC, it has applied for city permits to operate for 375 trips which has been granted and same is contrary to the earlier notification issued.
3.1 Sri M.E. Nagesh, learned Advocate appearing for petitioner has further contended that in the matter of S. Sadananda Chatra v. R. Gopal and Others, Full Bench of this Court in W.A. No. 629 of 1998 and connected cases, by order dated 7-9-1998 - Annexure-B has held that all authorities are duty bound to take note of the notification and exception having been carved out in the said order indicating that when there is a restriction on the ground of road congestion for private operators to operate, same would equally apply to KSRTC services also and as such, there is discrimination made in the notification dated 31-7-2004 and to the said extent allowing the continuation of the said notification dated 31-7-2004 by impugned order dated 6-2-2014 -Annexure-E is liable to be quashed since it has violated Article 14 of the Constitution of India. He would also submit that certain operators had filed writ petition before this Court seeking for a direction not to issue stage carriage permits to STU, in view of direction issued by Full Bench of this Court which was to the effect that notifications issued under Section 115 of the Motor Vehicles Act, 1988 with regard to grant of permits are to be taken note of by the authorities exempting the KSRTC buses and same is ignored by passing the impugned order and it is illegal and first respondent has exercised its statutory powers in a biased manner.
3.2 He would also submit that Regional Transport Authority, Mangalore had assessed the situation in a legal and holistic manner and had allowed the KBRTC buses only for inter district routes and has not allowed the City services and as such, it has rejected the applications filed by KSRTC for City services, which has not been taken note of by first respondent. He would submit that the area in and around bus stand of Udupi City, roads have not been widened and bus stand can only withstand limited buses and even for the existing permits, it is difficult to balance the buses in the existing bus stand and as such, if additional trips are allowed to be operated by fourth respondent, private operators like that of the petitioner would be put to irreparable loss and injury and this exercise has been undertaken by fourth respondent with an intention to eliminate the private operators from operating their buses in the name of a scheme and not to fulfil the spirit of the scheme. On these grounds, he seeks for quashing of the order dated 6-2-2014 Annexure-E to the extent of continuation of the notification dated 31-7-2004 Annexure-C and also for a direction to second respondent not to grant city stage carriage permits to fourth respondent.
4. Per contra, learned High Court Government Pleader would support the impugned order.
5. Sri Harish Kumar M.S., learned Advocate appearing for fourth respondent-KSRTC by supporting the impugned order would contend that present writ petition is not maintainable since petitioner has not challenged the notification dated 31-7-2004 and even otherwise, impugned order dated 6-2-2014 - Annexure-E would indicate that notification dated 31-7-2004 is only clarificatory in nature and as such, writ petition is liable to be rejected.
5.1 He would further elaborate his submission by contending that petitioner is not affected by the impugned notification in any maimer whatsoever since admittedly, services which petitioner is rendering commences from Udupi to other places and it does not cover Udupi Town. He would further contend that at the time of fourth respondent-Corporation being granted permits, petitioner had raised objection which came to be rejected by order dated 30-12-2014 - Annexure-R1 and same has not been challenged by the petitioner and therefore, it cannot be heard to contend that order dated 6-2-2014 - Annexure-E is liable to be quashed. Hence, he prays for dismissal of the writ petition.
6. Having heard the learned Advocates appearing for parties and on perusal of the material on record, it would indicate that by impugned notification dated 6-2-2014 - Annexure-E, notification dated 31-7-2004 has been allowed to be continued. Undisputedly, petitioner is the holder of permits which are not issued for being operated in the city routes. During the pendency of present proceedings, by order dated 30-12-2014 - Annexure-R1 second respondent has granted city stage carriage permit to fourth respondent which has not been questioned by the petitioner till date. In that view of the matter, prayer (c) sought for by the writ petitioner in this writ petition would not survive for consideration or in other words, it has become in-fructuous.
7. Udupi District came to be carved out in the year 1997 comprising of three Taluks namely, Udupi, Kundapur and Karkala having an area of 69.28 sq. kms. The commercial activities of Udupi District concentrated in and around four major Transit Nodes namely, Udupi, Manipal, Puttur Malpe and Udyavara. By notification dated 26-7-1994, Deputy Commissioner restricted entry of fresh stage carriage permit vehicles to enter Udupi Town which came to be reviewed in the subsequent notification dated 31-7-2004 and ordered that notification dated 26-7-1994 will not be applicable to the stage carriage vehicles owned by Government and exempted KSRTC buses from the restriction imposed therein. However, restriction is continued for all other stage carriage vehicles during the year 2014 pursuant to the direction issued by Division Bench of this Court. Modification of the earlier notification was in turn made and impugned notification came to be passed after considering the report submitted by the Regional Transport Officer and District Police Administration and it would clarify that exemption granted to KSRTC would continue. Thus, exemption granted under the earlier notification and clarified under the impugned notification would enable the KSRTC to operate buses within the State.
8. In fact, impugned notification dated 6-2-2014 - Annexure-E has been modified by the first respondent by issuance of notification dated 25-7-2015 which is at Annexure-R2. As such, on the ground of petitioner not having sought for quashing or setting aside said notification dated 6-12-2015 itself, the present writ petition is liable to be rejected. Even otherwise, if the claim of petitioner is examined on merits, it would indicate that petitioner has sought for quashing of the portion of the order passed by first respondent dated 6-2-2014 - Annexure-E to the extent of allowing continuation of the notification dated 31-7-2004 - Annexure-C. Perusal of the said notification dated 31-7-2004 - Annexure-C would indicate that said notification itself is a clarificatory notification clarifying thereunder that notification dated 26-7-1994 would be inapplicable insofar as Government (KSRTC) Majalu stage carriage buses operated by them and buses operated by KSRTC would be entitled to enter the Udupi Town bus stand. Seeking direction to withdraw notification dated 26-7-1994, writ petition had been filed before this Court which culminated in W.A. Nos. 24 to 27 of 1996 (Smt. Kathiza and Others v. The District Magistrate and Deputy Commissioner, Dakshina Kannada, Mangalore and Others), where under by order dated 24-11-1997 a direction came to be issued by the Division Bench of this Court to the Deputy Commissioner/District Magistrate to the following effect:
"16. In the result, following order is passed:
(a) .......
(b) Writ Petition No. 1300 of 1997 and Writ Appeal Nos. 24 to 27 of 1996 are dismissed. First respondent-District Magistrate, Dakshina Kannada, Mangalore is however directed to periodically review all notifications issued under Section 115 of the Act, and, so far as the three notifications under Section 115 of the Act impugned in these proceedings are concerned, the District Magistrate is directed to undertake review within three months from today.
(c).......... "
Pursuant to such direction being issued, Regional Transport Authority and the Police Department, Udupi jointly conducted survey and submitted a report to the Deputy Commissioner/District Magistrate explaining and reporting thereunder the quantum of increase in vehicular traffic and width of the roads which are required to be widened. Taking into consideration said report and in exercise of powers vested under Section 115 of the Motor Vehicles Act, 1988 and Rule 221 of the Karnataka Motor Vehicles Rules, 1989 notification dated 6-2-2014 came to be issued by first respondent. It is in this notification it has been clarified that concession already extended to Government (KSRTC) indicating stage carriage buses would continue to operate or in other words, by the impugned notification first respondent has clarified that concession extended for the KSRTC stage carriage buses viz., exemption would be allowed to continue and they would continue to operate. Said notification dated 31-7-2004 having not been questioned by the petitioner, he cannot be heard to contend after a lapse of 10 years that said notification being applied or extended to fourth respondent by the impugned notification dated 6-2-2014 is required to be quashed or read down that it is inapplicable to the impugned notification. This Court cannot lose sight of the fact that petitioner is a stage carriage operator operating the city services after obtaining permits as noticed herein above and is very well-conversant with the notifications issued and particularly, notification dated 31-7-2004 as also notification dated 26-7-1994 and if he has chosen not to challenge the same, he cannot be allowed to assail it after a lapse of 12 years or 22 years respectively.
9. In that view of the matter, fourth respondent-Corporation having sought for operating in the Town of Udupi by applying for grant of permits cannot be held as either contrary to the tenor of the notification dated 31-7-2004 or 26-7-1994. Fourth respondent is a public sector undertaking catering to the requirement of the general public and residents of Udupi and they would be entitled for transport facilities and petitioner having obtained stage carriage permits as already noticed herein would in no way be aggrieved by fourth respondent operating within City of Udupi or catering to the requirement of Udupi population, in particular since Udupi Town has grown by metes and bounds and several new layouts in an around Udupi having come up. That apart, as already noticed herein above, pursuant to notification dated 6-2-2014, fourth respondent had sought for grant of permits and at that juncture, writ petitioner herein had raised objections which came to be considered and rejected by order dated 30-2-2014 -Annexure-R1 and same has not been challenged by the petitioner till date.
10. For the reasons assigned herein above, this Court is of the considered view that contentions raised by learned Advocate appearing for petitioner does not merit acceptance and it stands rejected.
11. Hence, I proceed to pass the following:
ORDER
(i) Writ petitions are hereby dismissed.
(ii) Notification dated 6-2-2014 in No. RTA. CR. 5/2013-14C. No. 67170/C-6 passed by Deputy Commissioner and District Magistrate, Rajathadri, Manipal, Udupi District - Annexure-E is upheld.
(iii) No order as to costs.
12. Sri Anantha H., learned HCGP is permitted to file memo of appearance on behalf of respondents 1 to 3 within four weeks from today.
