@JUDGMENTTAG-ORDER
S. Abdul Nazeer, J.@mdashIn these petitions, the petitioner has sought for quashing the Composite order passed by the Karnataka State Transport Appellate Tribunal (for short ''the Tribunal'') in RP Nos. 828/99, 1056/99 and 1467/99 dated 31-5-2000 whereby the Tribunal has allowed the revision petitions filed by the Karnataka State Transport Corporation (for short ''the Corporation'') and the other contesting respondents and has set aside the order passed by the Karnataka State Transport Authority (for short ''KSTA'') dated 26-5-1999.
2. Petitioner is the-holder of a Stage Carriage Permit bearing No. 78/98 authorized to operate on the route between Hindupur and Bangalore via Gowribiddanur, Thonddebhavi, D. B. Pura, Hesarghatta and Jalahalli and back to operate at the rate of two round trips a day. The permit has been countersigned by the State Transport Authority, Andhra Pradesh and is saved under Kolar Pocket Scheme.
3. The petitioner filed an application to the second respondent for grant of a variation of conditions of permit by way of deviation of a portion of the route between Doddaballapur and Bangalore via Rajanakunte, Yelahanka, Hebbal instead of Gullahalli, Hesarghatta, Dasarahalli and Jalahalli.
4. The second respondent considered the said application at its meeting held on 21-5-1999 and granted variation by a resolution in Subject No. 100/1999 vide Annexure-A. Thereafter, the petitioner obtained an endorsement of variation and commenced operation of the service. Against the said order, the 3rd respondent filed a Revision Petition before the Tribunal in RP No. 828/ 1999, 4th respondent in RP No. 1056/1999 and 5th respondent-Corporation in RP No. 1467/1999 contending that the second respondent has erred in granting deviation on the monopoly route. The petitioner has contested the said proceedings before the first respondent. However, first respondent by the order impugned in this writ petition, allowed the revision petitions and set aside the grant of variation.
5. The contesting respondents have filed their objections to the writ petition. The 3rd respondent in its objections has stated that the petitioner held a Stage Carriage Permit on the route Hindupur to Bangalore and back via Gowribiddanur, Thondebhavi, Doddaballapura, Hesarghatta and Jalahalli performing two round trips per day. The portion of the route between the State Border to Doddaballapura overlaps the notified route of Kolar Pocket Scheme where the petitioner is an existing saved operator and between Doddaballapura to Bangalore is purely a non-monopoly route with which the petitioner was operating ever-since the permit was transferred to his name. Petitioner has sought curtailment of route between Doddaballapura to Bangalore via Hesaraghatta, Dasarahalli and Jalahalli, and sought a deviation to operate between Rajanakunte to Yelahanka and back which is a noticonditions route under the Kolar Pocket Scheme. Since the deviation granted by the second respondent overlaps the notified route of Kolar Pocket Scheme, the second respondent is not justified in granting variations of the conditions of the permit enabling him to ply the vehicle on the monopoly route. It is further contended that the Tribunal therefore, was justified in allowing the revision petitions filed by the contesting respondents.
6. The 4th and 5th respondents have also filed similar objections to the writ petitions.
7. I have heard the learned counsel for the parties.
8. Learned counsel for the petitioner submits that the petitioner was granted permit in the year 1958 and that Kolar Pocket Scheme is not a complete exclusion scheme. The petitioner was operating between Hindupur to Bangalore. A portion of the said route from Hindupur to Doddaballapura is a notified route and from Doddaballapura to Bangalore is a non-monopoly route. There is no prohibition to grant permit by way of variation of conditions of permit on monopoly route and that the second respondent is justified in granting deviation from non-monopoly route to monopoly route as per Annexure-A. He further submits that the revision filed by the contesting respondents, challenging the order of KSTA before the Tribunal, is not maintainable in law. They should have filed an appeal instead of a re vision. He has pointed out that in similar matters, the Tribunal in RP No. 1453/99 & 1414/1999 dated 2-5-2000 has held that the revision is not maintainable. The petitioner has produced a copy of the order at Annexure-C. The petitioners in those cases being aggrieved by the said order have filed a writ petition in WP No. 23379/2000 and this Court by order dated 13-10-2000 has confirmed the order of the Tribunal. Writ Appeal filed against the said order is also dismissed. Thus, he contends that the Tribunal ought to have dismissed the revisions on the ground that the revisions are not maintainable against the order of the KSTA in granting the deviation of permit. It is further contended that the total curtailment is 50 Kms and the total deviation is 40 Kms. Therefore, the deviation granted is not contrary to Section 80(3) of the MV Act, 1988. He further submits that the Tribunal is not justified in holding that having regard to its previous order in RP 717/1994, the STAT should not have granted deviation of permit. Finally, he submits that since the Kolar Pocket Scheme has been modiconditions by a Notification dated 7-11-2003, the variation or permits conditions granted to the petitioner is saved. Therefore, he prays for setting aside the order impugned and remand the matter to the Tribunal for fresh consideration in view of the modification of the Kolar Pocket Scheme.
9. Per contra, Sri. Prakash Shetty learned counsel for the Corporation submits that Chapter VI of the MV Act, 1988 has an overriding effect. Therefore, the second respondent is not justified in granting deviation of permit enabling the petitioner to ply his vehicle on the monopoly route. Admittedly, the petitioner was granted permit on the monopoly route from Hindupura to Doddaballapura and from Doddaballapura to Bangalore on a non-monopoly route. Under the guise of the deviation, the second respondent could not have granted permission to the petitioner to ply his vehicle on the notified route from Doddaballapur to Bangalore via Rajanakunta, Yelahanka and Hebbal. He further submits that the predecessor of the petitioner has sought a similar deviation and the KSTA had granted the said deviation which was challenged before the Tribunal in RP No. 717/1994. The Tribunal has set aside the said order of the STA which has become final. Since the petitioner has succeeded to the said permit, the order of the Tribunal in RP No. 717/1994 is binding on the petitioner. He further submits that after
10 Sri B.R.S. Gupta, Sri. G. Lingappa, learned counsel appearing for the other con testing respondents have supported the sub mission made by Sri Prakash Shetty.
11. In the light of the aforesaid contentions, the points that arise for consideration are as follows;
(i) Whether the deviation granted by the KSTA from non-monopoly route to monopoly route to a saved operator is permissible in law?
(ii) Whether the proceedings initiated by the petitioner seeking variation of the permit is barred by the principles of res-judicata?
(iii) Whether the Revision petitions filed by the contesting respondents before the Tribunal is maintainable?
(iv) Whether the deviation granted, by the KSTA is contrary to Section 80(3) of the Motor Vehicles Act, 1988?
(v) Whether the matter requires to be remanded for fresh consideration in view of the modification of the Kolar Pocket Scheme by Notification dated 7-11-2003.
Re. Point No. 1 :--
12. There is no dispute that the petitioner was holding a Stage Carriage Permit authorised to operate between Hindupur to Bangalore, since 1958. By a notification dated 10-1-1968, Kolar Pocket Scheme was notified and the route in question was nationalised. The material part of the scheme relevant for our purposes is as follows :
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(d) Whether the services are to be The State'' Transport Undertaking
operated by the State Transport will operate service on all the rout-
Undertaking to the exclusion, es to the complete exclusion of
complete or partial or other per- other persons except that.
sons or otherwise.
(a) That existing permit holders
on the interstate routes, may
continue to operate such inter-
state routes, subject to the con-
dition that their permit shall be
rendered ineffective for the over-
lapping portion of the notified
routes; and
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The said scheme was modified by a Notification dated 10-1-1980. The relevant portion of the scheme is as follows :
------------------------------------------------------------------------------
(d) Whether the services are to be The State Transport Undertaking
operated by the State Transport will operate the service on all rout-
Undertaking the complete exclusion es to the complete exclusion of the
or partial of other persons or other persons except the following.
otherwise.
(a) Operation of services on inter-
state routes by the State Road Transport
Corporation of other States established
under the Road Transport Corporation
Act, 1958 (Central Act 64 of 1950) or
registered under the Companies Act, 1956
(Central Act 1 of 1956);
(b) Xxx
The operation of services by the permit
holders who have already been granted
permits by the Transport Authorities
on the date of publication of the modi-
fied scheme on interstate agreement
entered into by the Government of any
other State provided that the operator on
each route shall not be entitled to pickup
and set down passengers in such portion
of the routes such overlaps on any por-
tions of the Notification.
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During the pendency of these petitions, the scheme was again modified by a Notification dated 7-11-2003. The relevant portion of the scheme is as follows :
"MODIFICATION TO KOLAR APPROVED SCHEME
In the principal scheme published under Sub-section (3) of Section 68-Dofthe Motor Vehicles Act, 1939, (Central Act 4 of 1939) in Notification, No. HD 70(2) TMP 64, dated 10th January 1968 and further modified in Notification I.No. HD 45 TMI 76, dated 10-1-1980 in the entries corresponding to item (d), after Clause (c), the following shall be inserted, namely :--
(d) in the case of permit holders to whom permits are already granted and issued by Transport Authorities after modification of the scheme dated 10-1-1980 on Inter-State, Inter-District and Intra-Districts routes overlapping the road section of the notified routes lying in the scheme of Kolar as on 31-7-1999 and also on the date of the Draft Notification, i.e. 27-5-2003, they are exempted to operate their service. Notwithstanding anything contained in the Bangalore and Anekal Schemes, with a condition that they shall not be entitled to pickup or set down passengers in such portion of the notified route lying the scheme of Kolar."
13. Admittedly, the petitioner was a saved operator. After coming into force, of Motor Vehicles Act, 1988 the petitioner made an application for issue of fresh permit in the light of the decision of the Hon''ble Supreme Court in the case of
"Para 56. It is required to be stated that along with the application u/s 70 filed for grant of permit u/s 72 or renewal u/s 81 made by the named holder of a specified permit in an approved scheme, he should enclose an authenticated copy of the approved scheme, the details of the route on which he was plying his stage carriage with corridor restrictions. The RTA or STA, as the case may be, should verify the original scheme under which the named operator, whose specified permit was saved, whether he is entitled to ply the stage carriage in the approved scheme with the condition of the corridor restrictions imposed in the notified scheme and if so to what extent. What is the duration of his right saved in the approved scheme? Whether he had plied his stage carriage on complying with the law in force? His right to permit u/s 72 or renewal u/s 81 cannot be higher than the original right saved in the approved scheme. The STU also should be heard in that behalf. On consideration of these and all other relevant, facts in relation to grant of stage carriage permit or renewal thereof, the appropriate authority may grant or reject. In the later event, for reasons to be recorded in support of the rejection."
Para 62. Accordingly, we hold that the named transport operators whose permits were saved in the relevant scheme shall apply for permits under Sections 70 and 71 and obtain permits afresh u/s 72 of the Act before the expiry, of the period mentioned in the permit issued either u/s 47 or Section 48 or renewal u/s 58 or Section 68-F(ID) of the Repealed Act. No third party/private operators are entitled to apply for permits on the same notified route or part thereof, nor are their entitled to compete with them for grant of permit, since the right of all other private operators to apply for and operate in the approved notified area, route or a part thereof, has been frozen. The right is reserved only in relation to the named operators and that too for specified permit, and none else. Along with the application u/s 70 filed for grant of permit u/s 72 or renewal u/s 81 made by the named holder of a specified permit in an approved scheme, he should enclose an authenticated copy of the approved scheme, the details of the route on which he was plying his stage carriage with corridor restrictions on overlapping routes. The RTA or STA, as the case may be, should verify the original scheme under which the named operator, whose specified permit was saved, whether he is entitled to ply the stage carriage in the approved scheme with the condition of the corridor restrictions on the notified scheme and if so to what extent. What is the duration of his right saved in the approved scheme? Whether he had plied his stage carriage on complying with the law in force? His right to permit u/s 72 or renewal u/s 81 cannot be higher than the original right saved in the approved scheme. The STU also should be heard in that behalf. On consideration of these and all other relevant facts in relation to grant of stage carriage permit or renewal thereof, the appropriate authority may grant or reject; in the later event, for reasons to be recorded in support of the rejection. The authorities should consider their applications in accordance with the law and the prescribed procedure and may grant new permits u/s 72 and later on before the expiry thereof, to renew it in accordance with the procedure prescribed in Sections 80 and 81, that too on compliance with law, until the scheme is duly modified or cancelled in accordance with law. We reiterate that this right is available exclusively to the named private operators and that too in respect of the specified permits and with same restrictions continued in the scheme and none else and no more"
14. Section 71 of the Motor Vehicles Act, 1988 provides a procedure for consideration of the application for stage carriage permit and Section 72 of the Act, provides for a grant of fresh stage carriage permit. Sub-section (3) of Section 80 provides for granting of variation of conditions of existing permit. Admittedly, the petitioner was permitted to ply his vehicle from Hindupura till Doddaballapur on a notified route and from Doddaballapur via., Gollahalli and Dasarahalli and till Bangalore, which is not a notified route. He has sought variation of the conditions of the permit so as to ply his vehicle from Doddaballapur via. Rajanakunte,- Yelahanka. Hebbal and Bangalore which is a notified route. "Variation of the conditions of the permit'' refers to any alternation of the conditions of the permit including extension of a route or curtailment of route or variation of route or increase or decrease in number of trips. ''Variation of the route'' refers to alteration of the route without changing the termini and is one of the several alterations falling under ''Variation of the conditions of the permit''. A Division Bench of this Case in the Case of
"Section 80(3) uses the terms Vary the conditions of any permit'' and ''variation of the route''. The word ''variation'' when used in the term ''variation of the conditions of the permit'' has a meaning different from the meaning it has, when used in the term ''variation of the route''. ''Variation of conditions of permit'' refers to any alternation of the conditions of the permit, inter alia, including an extension of the route or a curtailment of the route or a variation of the route or increase/decrease in the number of trips. ''Variation of the route'' refers to alternation of the route without changing the termini and is one of the several alterations falling under ''Variation of the conditions of the permit''."
15. Chapter VI of the Motor Vehicles Act, 1988 provides for Special provisions relating to State Transport Undertakings. Section 98 of the Act states that the provisions of Chapter VI of the Act. Rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or instrument having effect by virtue of any such law. The scheme framed under Chapter VI of the Act will prevail over Chapter V of the Act.
16. In the case of
"It is true as contended by Shri Salve that in
17. As noticed above, the petitioner was granted new permit in lieu of his old permit with the same restrictions contained in the same. The question for consideration is whether a deviation can be granted from the non-monopoly route to a monopoly route in the guise of granting variation of the conditions of the permit. A Constitution Bench of the Hon''ble Supreme Court in the case of .
"6. A careful and diligent perusal of Section 68-C, Section 68D(3) and Section 68FF in the light of the definition of the expression ''route'' in Section 2(28A) appears to make it manifestly clear that once a scheme is published u/s 68-D in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other persons or otherwise, no person other than the State Transport Undertaking may operate on the notified area or notified route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit as originally granted to him covered the notified route or area. We are not impressed by the various submissions made on behalf of the appellants by their several counsel. The foremost argument was that based on great inconvenience which may be caused to the travelling public if a passenger is not allowed to travel, say, straight from A to B on a stage carriage, to ply which on the route A to B a person X has a permit, merely because a part of the route from C to D somewhere between the points A and B is part of a notified route. The answer to the question is that this is a factor which will necessarily be taken into consideration by the State Transport Undertaking before publishing the scheme u/s 68-C, by the Government u/s 68D when considering the objections to the scheme and thereafter either by the State Transport inconveniences experienced by the travelling public are brought to their notice. The question is one of weighing in the balance the advantages conferred on the public by the nationalization of the route C-D against the inconveniences suffered by the public wanting to travel straight from A to B. On the other hand it is quite well known that under the guise of the so-called ''corridor restrictions'' permits over longer routes which cover shorter notified routes or ''overlapping'' parts of notified routes are more often than not: misutilised since it is next high impossible to keep a proper check at every point of the route. It is also well known that often times permits for plying stage carriages from a point a short distance beyond one terminus to a point a short distance beyond another terminus of a notified route have been applied for and granted subject to the so-called ''corridor restrictions'' winch are but mere ruses or traps to obtain permits and to frustrate the scheme. If indeed there is any need for protecting the travelling public from inconvenience as suggested by the learned counsel we have no doubt that the State Transport Undertaking and the Government will make a sufficient provision in the scheme itself to avoid inconvenience being cause to the travelling public."
18. In the case of
19. In the case of
"In view of the settled legal position that once the scheme has been approved and notified, right to ply stage carriages by private operators on the notified area, routes or portions thereof is totally frozen. Therefore, they have no right to claim any grant of stage carriage, temporary or contract carriage permits thereunder on the said notified area, routes or portions thereof except to the extent saved by the scheme with restrictions imposed thereunder ".
20. In the case of
21. In the case of
22. In the case of
23. In the case of
"Whether it is permissible to grant variation of the condition of the Stage Carriage Permit held by a saved operator under Kolar Pocket Scheme by increasing the number of trips or vehicles?
The Full Bench has answered the said question in the following terms :
"It is not permissible to grant variation of the conditions of a stage carriage permit held by a saved operator under the Kolar Pocket Scheme or Bellary Pocket Scheme by increasing the number of trips or number of vehicles unless the reciprocal agreement between the States so permits, as held by the Supreme Court in R. Venkatesham Chetty''s case."
24. At this stage learned counsel for the petitioner has cited several decisions of the Hon''ble Supreme Court and of this Court to hold that the STA has jurisdiction to grant variation of conditions of permit by granting deviation of the route or notified route. He has relied on the decisions of the Supreme Court in the case of
25. In
26. In the case of
27. In the case of
28. In the case of
29. Learned counsel further argues that the matter is again referred to a larger bench of the Hon''ble ''Supreme Court for consideration. It is further argued that in the case of
"......The argument of learned counsel M. R. V. Achar is that in the later decision, the earlier decision was not followed. The controversy is not acceptable as it is well-settled law of precedent that where there are two judgments rendered by the Benches considering of equal number of Judges as in this case, the latter in time would prevail and hence we are bound by the decision of the Supreme Court in R. Venkatesham Chetty''s case referred to above "
30. In the light of the above discussion, I am of the view that the petitioner was granted new permit in lieu of his old permit in view of the decision of the Apex Court in
Re. Point No. (ii)
31. It is riot in dispute that on an earlier occasion the KSTA had granted identical deviation on an application filed by the previous holder of the permit. The said decision was challenged before the Tribunal in RP No. 717/1994 on an identical grounds. It is also not in dispute that the Tribunal had allowed the revision and set aside the order of the KSTA. The petitioner is a transferee of the said permit. The Transferor had not challenged the said order. Thus, the order in RP No. 717/1994 becomes final. Learned counsel for the petitioner submits that the said order will not bar the petitioner from making a fresh application for grant of variation of conditions of the permit. He submits that in view of
32. On the other hand, learned counsel for the respondents submit that the permit granted by the STA is after Gajraj Singh''s case in lieu of the previous permit. There fore, the application filed by the petitioner is barred by the principles of res judicata. Learned counsel has relied on the decision in the case of G. V. Chandra Shekar v. The State Transport Authority (WP No. 23486/ 1989, DD 12-10-1999) for the said proposition.
33. In G. V. Chandra Shekar''s case, a similar question came up for consideration before this Court. In the said case, the 2nd respondent has sought for counter signature from the STA, which came to be rejected. That order was challenged before the Tribunal, Bangalore. The Tribunal has al lowed the said RP No. 717/1994 holding that it is not a question of picking up or setting down of the passengers but it is the question of passing on the notified route, which'' cannot be allowed. The Tribunal after considering the matter in detail rejected the appeal. Again the 2nd respondent filed an application before the STA for counter signature. The petitioner filed a writ petition against the KSTA and others for prohibiting him from considering the 2nd application on the ground that the earlier order of rejection has become final between the parties. While allowing the writ petition, this Court has held as follows :
"However, in view of the fact that already the Appellate Tribunal has held that the respondent is not entitled for counter-signature in the order passed therein which has become final. I hold that the attempt of the second respondent is only a futile one and no useful purpose will be served if the STA is directed to consider the applications and pass orders."
The decision in Chandrashekar''s case was also confirmed by the Division Bench in W.A. Nos. 4813-15/1999.
34. In N. Vishwanath''s case AIR 2002 Kant 47 (supra) the Court was considering the effect of granting counter-signatures to a permit when the STA had rejected similar application for counter-signature earlier. It is held that a judgment or a decision rendered by a Court/Tribunal in the absence of challenge becomes final. It is held as follows :--
"If the renewal made to the grantees permit under the New Motor Vehicles Act, in effect was the continuation of the permit earlier granted under the Act 1939, inasmuch as he was the saved operator under the Kolar Pocket Scheme as if his earlier application for counter-signature for the additional trip with the additional vehicle was already rejected by the State Transport Authority, then the further question viz., what is the effect of the earlier order rejecting the counter-signature. The legal position is, "A Judgment or a decision rendered by a Tribunal/Court in the absence of challenge becomes final and binding on both the parties."
35. From the discussion made above, I am of the view that an earlier decision of the Tribunal on the same question has be come final and binding on the parties, since its binding effect inter parties was not set at naught in a manner known to or recognised by law. The principle of res judicata will apply when a matter in dispute is directly and substantially in issue between the same parties or between the parties under whom they claim and it had been heard and finally decided by the Tribunal. The petitioner is the successor for the permit in question. Therefore she is bound by the earlier order of the Tribunal and that she cannot re-agitate the same issue which has become final. Point No. (ii) is answered in the affirmative.
Re. Point No. (iii)
36. It is true that an appeal lies u/s 90 against the order passed by the KSTA granting variation of the conditions of the permit. In this case, the petitioner has filed a revision against the said order. Learned counsel for the petitioner submits that since the revision is not maintainable, the order impugned requires to be set aside and the matter requires to be remitted back to the Tribunal for fresh disposal after directing the petitioners to convert the revision into an appeal.
37. Learned counsel further submits that the Tribunal on an earlier occasion in RP Nos. 1453/99 and 1414/99 dated 2-5-2000 has held that the revision is not maintain able and that the said order was confirmed by this Court in W P No. 23379/00 D/- 13- 10-2000. He further submits that the decision in W P No. 23379/00 was confirmed by a Division Bench of this Court in W A No. 7565/00 D/- 27-3-2003 : (reported in
38. On the other hand, learned counsel for the respondents submits that the Tribunal is vested with both the revisional jurisdiction as also the appellate jurisdiction. It is submitted that the petitioner has not objected before the Tribunal as to the maintainability of the revision. It is argued that the respondents have opposed before the KSTA that the application of the petitioner for variation of conditions of permit is barred by the principles of res judicata and that it is not permissible in law to grant variation of conditions of permit. The KSTA has erred in granting variation without considering their objections. They have relied on the decision of this Court ii the case of
39. It cannot be disputed that against the order of KSTA in granting variation of the conditions of the permit, an appeal lies u/s 90 of the Act. Further, under the scheme of the Act, the Tribunal is an Appellate Authority as also a Revisional Authority. In the case of
"The High Court came to the conclusion that it should not interfere, in its discretionary powers under Articles 226 and 227 with the order of the Appeal Board, because even if the appeal for some reason was incompetent the Appeal Board had the record before it and gave effect to the correct legal position arising from a notified scheme. The same view was expressed also in
40. This Court in the case of Rahamathulla v. Karnataka State Transport Appellate Tribunal reported in ILR 1985 Kant 2749 has held as follows :
"..... Therefore it is clear that when the Appellate Authority is also the revisional authority in certain cases, it can exercise revisional jurisdiction to consider the validity of the order which could have been otherwise considered by it in the appeal. But, the question that still remains, as to whether it is open to the Appellate Authority to exercise revisional power in every case as a matter of course. It appears to me that such a course is not open to the Appellate Authority in every case. It is only in exceptional cases where it is found that the original authority has ignored the law having a bearing on its jurisdiction or has acted without jurisdiction or failed to exercise jurisdiction or has acted arbitrarily or in disregard of the principles of natural justice, in exercise of its jurisdiction or has not complied with the required mandatory procedure; and the order is of such nature that if it is allowed to stand, it would occasion a failure of justice or cause irreparable injury to the party against whom it is made; then only the revisional jurisdiction can be exercised irrespective of the fact that an appeal has not been preferred. It is not permissible for the Appellate Authority to exercise the revisional jurisdiction in cases where there is only a misappreciation of evidence on record. Therefore, with the aforesaid limitation on the exercise of revisional power, it is open to the Appellate Authority to exercise the revisional jurisdiction in cases where an appeal lies but no appeal is preferred......."
41. As noticed above, the Tribunal is an Appellate Authority and the Revisional Authority. As held by this Court, in exceptional cases, when the original authority has ignored the law having a bearing on its jurisdiction or has acted without jurisdiction or failed to exercise jurisdiction or has acted arbitrarily or in disregard of the principles of natural justice in exercise of jurisdiction or has not complied with the required mandatory procedure and the order as of such nature, if it is allowed to stand, it would occasion a failure of justice or cause irreparable injury to the party against whom it is made, a revisional jurisdiction can be exercised irrespective of an appeal has not been preferred. This is a case where the KSTA has passed an order without considering the objections of the contesting respondents that the application filed for variation of condition of permit is barred by principles of res judicata and that it opposed to a decision of the Hon''ble Supreme Court in
Re. Point No. (iv)
42. As noticed above, Section 80(3) of the Act provides for grant, of variation of 1 he conditions of the permit. Admittedly, the curtailment granted was 50 Kms, from Doddaballapura to Bangalore via., Gollahalli and Dasarahalli, and deviation allowed was 40 Kms. from Doddaballapur via., Rajanakunte, Yelhanka and Hebbal.
43. Learned counsel for the petitioner submits that deviation does not amount to extension of 24 Kms. as provided in II Proviso to Sub-section (3) of Section 80 of the Act. Section 80(3) prescribes a limit of 24 Kms. as variation in the route or extension of the route while varying the conditions of the permit. The question is whether the ex tent of curtailment would be accounted for calculating the extent of variation or extension permitted. The Division Bench of this Court in A. Diwakara Naik''s case AIR 2002 Kant 1115 (supra) has held that the extent of curtailment cannot be taken into consideration while calculating the ex tent of variation or extension. The relevant portion is as follows :
"Section 80(3) prescribes a limit of 24 Kms. as variation in route or extension of route, while varying the conditions of permit but there is no such restriction or ceiling in regard to the extent of curtailment. Therefore, curtailment can be of any extent, that is even more than 24 Kms. In H.N. Jayamma v. Karnataka State Transport Authority, a learned single Judge (one of use held that there is no limit in regard to curtailment and the extent of curtailment will not count for calculating the limit of 24 Kms. imposed for variations or extensions of the route). As curtailment is different from variation or extension and as the statute prescribes the ceiling of 24 Kms. only in regard to variation and extension, if follows that there is no limit in regard to the extent of curtailment that can be effected. Further the extent of curtailment cannot be counted for calculating the extent of variation or extension permitted. For example, if the route is from point A to C (60 Km.) via B, and if the permit holder seeks curtailment from B to C (20 Km) retaining the remaining part of the route A to B (40 Km) and seeks extension from B to D (15 Km), then the extension is only 15 Km and not 20 Km + 15 Km (35 Km). We answer point (ii) accordingly."
44. In the present case, the curtailment sought is 50 Kms on a non-notified route, and variation by way of alteration is 40 Kms on a notified route. As held in Diwakar Naik''s case AIR 2002 Kant 1115, extent of curtailment will not count for calculating the limit of 25 Kms imposed for variation. The variation granted by the KSTA is more than 24 Kms is contrary to Sub-section (3) of Section 80 of the Act. I answer Point No. (iv) accordingly.
Re. Point No. (v)
45. Learned counsel for the petitioner lastly submitted that having regard to the modification of the Kolar Pocket Scheme by notification dated 7-11-2003, the permit granted to petitioner is prior to said date and is saved. Therefore, he prays for remanding of the matter for fresh consideration in accordance with the modified scheme dated 7-11-2003.
46. The contention of the petitioner is required to be rejected for the following reasons;
(i) Perusal, of the amended scheme dated 7-11-2003 makes it clear that the permits granted after 1980 till 7-11-2003 are saved. A scheme framed approved and notified under Chapter VI of the Act is held to be the law. Having regard to the language employed in the modified scheme, the fresh permits granted and issued as per Section 72 of the Act are alone saved and not the variation granted to the existing permit as per Sub-section (3) of Section 80.
(ii) The variation granted is contrary to Sub-section (3) of Section 80 of the M.V. Act, 1988 because the deviation granted is more than 24 Kms.
(iii) The KSTA could not have entertained the application of the petitioner for, variation of the conditions of permit since it is barred by the principles of res judicata. KSTA is bound by the previous order of the Tribunal in RP No. 717/94, which has become final and binding between the parties.
Therefore, no useful purpose will be served by remanding the matter to the Tribunal. I answer Point No. (v) accordingly.
47. In the result, these writ petitions fail and they are accordingly dismissed.
No costs.
