CHOKLI MOIDEENKUTTY Vs. S T A T ERNAKULAM

JUDGEMENT

(1.) This appeal is against the judgment of the learned single Judge in O.P. No 6414 of 1988. The second respondent, the Regional Transport Authority, Malappuram passed an order as per Ext. P1 on 23-5-1985 for the purpose of introduction of a stage carriage serviced for the route Kuttur North - Kozhikode via A. R. Nagar Kakkadumpuram Kunnumpuram - Kondotty and Ramanattukara, it being satisfied that there is need for grant of a stage carriage permit for one trip. The said route is an inter district route falling within the jurisdictions of the Regional Transport Authority, Malappuram and the Regional Transport Authority, Kozhikode. In pursuance of that decision applications were invited under S.57(2) of the Motor Vehicles Act by notification dated 5-12-1985, published in the gazette dated the 21st of January 1986. The said notification is extracted as follows:

(2.) There is no dispute between the appellant on the one hand and the contesting 4th respondent on the other that they have equal merit for claiming grant of permit for the route in question. The appellant would be entitled to claim preference over the 4th respondent only if he is able to establish that the route in question is a short route, as a new entrant is entitled to be preferred other things being equal in view of R.177A(3) of the rules. Hence the entire controversy centres round the question as to what is the precise distance of the route and as to what is the date with reference to which the distance of the route should be measured. R.177A classifies routes covering a distance of not more than 40 KMs as short routes, routes covering a distance of more than 40 KMs. but not more than 80 KMs. as medium routes and routes covering a distance of more than 80 KMs. as long routes. Whereas the appellant contends that the distance of the route in question is less than 40KMs. and is therefore a short route, the 4th respondent contends that the route in question is more than 40 KMs. and therefore a medium route. The route in question passes through the city of Kozhikode. Certain traffic regulations were issued introducing one way traffic system. As a result of these regulations the buses passing through Calicut from Kuttor North side have to travel a longer distance than they were doing before. According to the appellant, the length of the route before the introduction of these regulations was 39.4 Kms. If the route to be followed in accordance with the traffic regulations is measured, it may exceed the limit of 40 KMs. The traffic regulations may therefore have the effect of converting a short route into a medium route. The 4th respondent, however, contends that the route measured more than 40 KMs. even before the introduction of the traffic regulations. As the question as to whether the appellant is entitled to claim preference under R.177A(3) of the rules depends entirely on the distance of the route, the date with reference to which the route should be measured assumes crucial importance.

(3.) Learned counsel for the 4th respondent submitted that the relevant date to be taken into consideration is the date on which all the applications for grant of permit for the route in question were first considered by the R.T. A. on the 17th of May 1986. Reliance was placed in support of this contention on the Full Bench decision of this court reported in 1962 KLT 446 between Cannanore District Motor Transport Employees Cooperative Society Limited and Malabar Public Conveyance which has been reaffirmed in the subsequent Full Bench decision reported in 1980 KLT 249 between Narayanan and R.T.A. Trichur, afresh taking into consideration the judgment of the Supreme Court reported in AIR 1971 SC 1804 between the Maharashtra State Road Transport Corporation and Malgrulpir Joint Motor Service Co. (P) Ltd. and others. These decisions have been consistently followed by this court in subsequent decisions reported in 1985 KLT 1026 between Manikanda Kumar and Ramakrishnan and in W. A. No. 445 of 1987. The law that is well settled by these decisions is that the date on which the R. T. A. takes up the subject for final consideration is the date for assessment of the relative merits of the applicants for grant of permit and not any anterior or subsequent date. But this is not a case in which there is any dispute in regard to the qualifications. Neither the appellant nor the 4th respondent has put forward any case that he has subsequently acquired any qualification which is required to be taken into consideration. As both the parties proceed on the basis that they were equally qualified as on the date of first consideration of the application by the R.T.A. namely 17-5-1986, the question of applying the principle laid down in the aforesaid decision does not arise. We are concerned in this case not with the qualifications of the appellant or the 4th respondent but with the question as to what is the distance of the route which should be taken into consideration for the purpose of R.177A(3) of the rules.