ORDER
S. Abdul Nazeer, J.
1. In 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 Gajraj Singh's case : AIR1997SC412 the petitioner was granted the present permit in lieu of the old permit. Thus the petitioner is bound by the order in RP No. 1717/1994. It is further argued that the variation granted is not in conformity with the law and that the variation cannot be granted on a notified route. He further submits that the petitioner is a saved operator only to the extent of what was granted under the scheme and that no deviation could be granted from the original permit. It is further contended that the revisions filed by the contesting respondents before the Tribunal is maintainable. He further submits that without prejudice to his aforesaid contentions, the deviation granted is more than 24 Kms which is opposed to Section 80(3) of the MV Act, 1988.
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 :
------------------------------------------------------------------------------(d) Whether the services are to be The State' Transport Undertakingoperated by the State Transport will operate service on all the rout-Undertaking to the exclusion, es to the complete exclusion ofcomplete or partial or other per- other persons except that.sons or otherwise.(a) That existing permit holderson the interstate routes, maycontinue to operate such inter-state routes, subject to the con-dition that their permit shall berendered ineffective for the over-lapping portion of the notifiedroutes; and------------------------------------------------------------------------------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 Undertakingoperated by the State Transport will operate the service on all rout-Undertaking the complete exclusion es to the complete exclusion of theor partial of other persons or other persons except the following.otherwise.(a) Operation of services on inter-state routes by the State Road TransportCorporation of other States establishedunder the Road Transport CorporationAct, 1958 (Central Act 64 of 1950) or registered under the Companies Act, 1956(Central Act 1 of 1956);(b) XxxThe operation of services by the permitholders who have already been grantedpermits by the Transport Authoritieson the date of publication of the modi-fied scheme on interstate agreemententered into by the Government of anyother State provided that the operator oneach route shall not be entitled to pickupand set down passengers in such portionof the routes such overlaps on any por-tions of the Notification.------------------------------------------------------------------------------
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 Gajraj Singh v. State Transport Appellate Tribunal reported in : AIR1997SC412 . The petitioner was issued a new permit in lieu of the old permit issued under the old Act. In Gajraj Singh's case, the Apex Court has held that the right to permit under Section 72 of the New Act cannot be higher than the original right saved in the approved scheme. It is further held that the right to grant fresh permit is available to the named operators in respect of specified permits with the same restrictions continued in the scheme. The Relevant portion of the decision in Gajraj Singh's case is as follows :
'Para 56. It is required to be stated that along with the application under Section 70 filed for grant of permit under Section 72 or renewal under Section 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 under Section 72 or renewal under Section 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 under Section 72 of the Act before the expiry, of the period mentioned in the permit issued either under Section 47 or Section 48 or renewal under Section 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 under Section 70 filed for grant of permit under Section 72 or renewal under Section 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 under Section 72 or renewal under Section 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 under Section 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 A. Diwakara Naik v. Karnataka State-Transport Authority reported in ILR 2002 Kant 1357 : (2002 AIR -- Kant HCR 1115) has held that the 'variation of the route' is one of the several alterations falling under 'variation of the conditions of the permit'. It is also held as follows :
'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 Ramkrishna Verma v. State of U. P. reported in : [1992]2SCR378 the Hon'ble Supreme Court has held that the scheme approved under Section 68(D) of the Motor Vehicles Act, 1939 is the law and it excludes private operators from area or route or portion thereof covered by the scheme. It is further held that by operation of Section 98 of the Motor Vehicles act, 1988, Chapter VI overrides Chapter V and other law and shall have the effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law. The Court has further held that the liberal policy of grant of permits under Section 80 of the Act is directed to eliminate corruption and favouritism in the process of granting permits, eliminate monopoly of few persons and making operation on a particular route economically viable and encourage healthy competition to bring about efficiency in the Trade. The relevant portion is as follows :
'It is true as contended by Shri Salve that in Mithilesh Garg v. Union of India, : AIR1992SC443 , this Court held that the liberal policy of grant of permits under Section 80 of the Act is directed to eliminate corruption and favouritism in the in the process of granting permits, eliminate monopoly of few persons and making operation on a particular route economically viable and encourage healthy competition to bring about efficiency in the trade. But the free ply is confined to grant of permits under Chapter V of the Act. By operation of Section 98 of the Act, Chapter VI overrides Chapter V and other law and shall have effect not withstanding anything inconsistent therewith contained in Chapter V or any other law for the time being in force or any instrument having effect by virtue of such law. The result is that even under the Act the existing scheme under the repealed Act or made under Chapter VI of the Act shall have overriding effect on Chapter V notwithstanding any right given to private operators in Chapter V of the Act. No corridor protection to private operators is permissible.'
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 . Adarsh Travels Bus Service v. State of U. P. reported in : AIR1986SC319 has held that once a scheme is published Under Section 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. It is held as follows :
'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 under Section 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 under Section 68-C, by the Government under Section 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 R. Raghuram v. P. Jayarama Naidu reported in : AIR1990SC412 the Hon'ble Supreme Court has held that even when the scheme provides that an existing operator is exempted from the operation of the scheme, it only means that he can continue to operate his services with the existing number of trips on the date on which the scheme is published and it does not authorise him to apply for a variation of his permit so that he can increase the number of trips on the overlapping portion of the notified route thus increasing the burden of private operation of vehicles on the notified route.
19. In the case of U. P. State Roadways Transport Corporation, Lucknow through its General Manager v. Anwar Ahmed reported in : (1997)3SCC191 the Hon'ble Supreme Court has held that after a scheme is approved and published, private operators have no right to claim permit to operate their vehicles on the notified area, route or portion thereof except to the extent permitted by the scheme itself. It is further held that the scheme prevails till varied according to law. The relevant portion is as follows :
'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 M. Ramaswamy v. Karnataka State Transport Authority, Bangalore reported in 1998 (6) Kar LJ 214 a Division Bench of this Hon'ble Court has held that where right of private operator to operate on notified route or portion thereof is restricted to the extent he was operating on date of publication of scheme, State Transport Authority has no authority to permit deviation from same. It is further held that since notification is law. State Trans port Authority has no authority to make orders, which are violative of scheme. The Court has further held that the KSTA has to take notice of the law laid down by the Apex Court as also of this Court in various judgments or else on some day they may find themselves trapped in a contempt proceedings.
21. In the case of Karnataka State Road Transport Corporation v. Ashrafulla Khan reported in : [2002]1SCR194 the Hon'ble Supreme Court has held that Kolar Pocket Scheme is for total exclusion of private operators on notified route or portion thereof and that no permit can be granted to private operators on same line of notified route or portion thereof excepting an intersection.
22. In the case of N. Vishwanath v. The State Transport Authority, ILR 2001 Kar 4944 : (2002 AIR -- Kant HCR 47) 'a learned Judge of this Court has held that grant of counter signature for additional trip to be operated by additional vehicle offends Kolar Pocket Scheme.
23. In the case of Karnataka State Road Transport Corporation v. Smt. R. Maheshwari reported in : AIR2003Kant456 the Full Bench of this Court has considered the following questions :
'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 Ramanath Verma v. State of Rajasthan : [1963]2SCR152 , G. T. Venkataswamy Reddy v. Karnataka State Transport Appellate Authority, : AIR1980Kant199 , Karnataka State Road Transport Corporation. Bangalore v. B. Jayaram, : [1984]2SCR768 , M/s. Nehru Motor Transport Co-operative Society Ltd. v. State of Rajasthan, : [1964]1SCR220 and Karnataka State Road Trans port Corporation, Bangalore v. Karnataka State Transport Authority, Bangalore, : AIR1987SC711 .
25. In Ramanath Verma's case : [1963]2SCR152 , the Hon'ble Supreme Court has held that under Section 68-C of the Motor Vehicles Act, 1939, it is open to frame a scheme in which there is partial exclusion of the private operators. Making the permits ineffective for the overlapping part only amounts to partial exclusion of the private operators from that route. In the circumstances, the order making the permit ineffective for the overlapping part would be justified under Section 68-C. In the case of Nehru Motor Transport Co-op. Society Ltd. v. State of Rajasthan, : [1964]1SCR220 the Hon'ble Supreme Court has held that under Section 68-C it is open to take over any area or route to the complete or partial exclusion of other persons. It is open to the State to take over certain routes only and exclude those only who may be plying completely on that route, leaving out of the scheme those who covered the route only partially.
26. In the case of A. P. State Road Trans port Corporation v. P. V. Ramamohan Chowdhury : [1992]1SCR830 , it is held that the exercise of power of cancellation or modification of the scheme under Section 68-E would be dehors the approval granted under Sub-section (2) of Section 68-D of the Act and published under Sub-section (3) of Section 68-D and that the conditions precedent therein are the Government must objectively come to a finding that there exists necessity in public interest and that the approved scheme needs modification and that the Government considers that such necessity to be imperative to modify the scheme.
27. In the case of Mysore State Road Transport Corporation v. Mysore State Transport Appellate Tribunal, : [1975]1SCR615 it is held that any route or area whether wholly or partly can be taken over by a State Undertaking under any scheme published, approved and notified under the provisions of Chapter IV-A of the Act. The provisions of the said Chapter confer a monopoly on the State in respect of transport services to the partial or complete exclusion of other per sons. The above decisions relied on by the learned counsel for the petitioner is not applicable to the facts of this case.
28. In the case of G. T. B Venkataswamy Reddy v. Karnataka State Transport Appellate Authority in : AIR1980Kant199 relied on by the learned counsel for the petitioner, a Division Bench of this Court has held that the exemption granted under the Kolar Pocket Scheme to the existing permit holders on inter-State routes does not prohibit variation of the conditions of such permit by increasing the number of vehicles to be operated under such permits. The said decision was confirmed by the Hon'ble Supreme Court in the case Karnataka State Road Transport Corporation, Bangalore v. B. Jayaram, : [1984]2SCR768 .
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 Karnataka State Road Transport Corporation, Bangalore v. Karnataka State Transport Authority, Bangalore, : AIR1987SC711 the Hon'ble Supreme Court has come to a conclusion that in Adarsh Travels case : AIR1986SC319 the Constitution Bench has not barred granting of variation of conditions of permit on monopoly routes. He further submits that the maximum that can be done is making the permit ineffective for the overlapping portion of the notified route and that there is no prohibition to grant deviation on the route. Similar argument advanced on behalf of the private operators before the Full Bench of this Court in Maheshwari's case (2003 AIR -- Kant HCR 2213) (supra) was rejected by holding as follows :
'......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 Gajraj Singh's case : AIR1997SC412 (supra). The right of the petitioner for grant of fresh permit cannot be higher than the original permit, merely because he was a saved operator. It is well-established that when the scheme provides that an existing operator is exempted from the operation of the scheme, it only means that he can continue to operate his services with the existing conditions of the permit on the date on which the scheme is published. Variation of the route is one of the several alterations falling under 'variation of conditions of permit'. Therefore, an existing operator is not entitled to apply for a variation of permit so that he can deviate from a non-monopoly route to a monopoly route, thus increasing the burden of private operation of vehicles on the notified route. Chapter VI of the Act has overriding effect on Chapter V of the Act notwithstanding any right given to private operators. Therefore, once the scheme is existing under the repealed Act or made under the New Act, in relation to any area, or route or portion thereof, no person other than the State Transport Undertaking may operate on the notified route except as provided in the scheme itself. I am of the view that right of the petitioner to operate his services on the notified route or portion thereof is restricted to the extent he was operating on the date of publication of the scheme. I am also of the view that KSTA has no authority to make an order violative of the scheme. Point No. (i) is answered accordingly-
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 Gajraj Singh's case : AIR1997SC412 , a fresh application was filed for grant of permit and accordingly, the KSTA has granted the fresh permit.
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 (2002 AIR -- Kant HCR 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 under Section 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 : AIR2003Kant326 ). He has relied on a decision of this Court in the case of N. S. Rama Rao v. Regional Transport Authority reported in : ILR1996KAR117 wherein this Court has held that an appeal lies against the order of STA and not a revision.
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 Rahamathulla v. Karnataka State Transport Appellate Tribunal reported in : ILR1985KAR2749 . They submit that the order does not call for interference in exercise of the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
39. It cannot be disputed that against the order of KSTA in granting variation of the conditions of the permit, an appeal lies under Section 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 Nilkanth Prasad v. State of Bihar reported in : AIR1962SC1135 the Hon'ble Supreme Court has held that when the RTA grants permit contrary to law, even though the appeal filed was incompetent, the order could be revised and such an order cannot be interfered with under Article 226/ 227 of the Constitution of India. It is held as follows :
'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 Samarth Transport Co. v. Regional Transport Authority, Nagpur, : [1961]1SCR631 . In our opinion, we should not interfere on this ground either. In this connection, the difference between the two sets of cases arising from the fact whether the Rajya Transport. Bihar, had objected or not, completely disappears.'
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 Adarsh Travels case, : AIR1986SC319 . It is true that the contesting respondents ought to have filed an appeal against the said order instead of a revision. Since, the Appellate Authority and the Revisional Authority are one and the same and since the order of the Tribunal is in conformity with the decisions of the Hon'ble Apex Court, I am of the view that this is n6t a fit case where discretionary powers under Articles 226 and 227 of the Constitution of India should be exercised and the order impugned is interfered with. I answer Point No. (iii) accordingly.
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 (2002 AIR -- Kant HCR 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 (2002 AIR -- Kant HCR 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.