Chelsia Theresa George v. Government of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941** ## **WP(C).No.16172 of 2017** ## **PETITIONER :** **CHELSIA THERESA GEORGE D/O. LATE GEORGE CHERIYAN, PANACHIKALAYIL HOUSE VETTIMUGAL.P.O.ETTUMANOOR, KOTTAYAM BY ADV. SRI.K.T.RAVEENDRAN** ## **RESPONDENTS:** **1 THE GOVERNMENT OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001 2 THE REGIONAL TRNAPORT AUTHORITY ERNAKULAM, REPRESENTED BY ITS SECRETARY- 682 030 3 THE SECRETARY REGIONAL TRANSPORT AUTHORITY, ERNAKULAM- 682 030** - **4 THE KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, PATTOM, THIRUVANANTHAPURAM- 695 001** **BY SRI. PAUL ABRAHAM VAKKANAL SR GP SRI P C CHACKO SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16172 of 2017** **2** ## **JUDGMENT** The petitioner, who is the holder of regular permit to operate on the route Kottayam-Perikkalloor as Limited Stop Ordinary Service with stage carriage bearing registration No.KL-5/AL-3699, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 notification dated 15.03.2017 issued by the 1[st] respondent to the extent it prescribes a maximum distance of 140 kilometers for 'Ordinary Limited Stop Service'. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent Secretary, Regional Transport Authority to re-issue four months temporary permit to the petitioner in respect of the aforesaid stage carriage on the said route as Limited Stop Ordinary Service by considering Ext.P4 application in continuation of Ext.P2 untrammelled by Ext.P3. 2. On 16.05.2017, when this writ petition came up **WP(C).No.16172 of 2017** **3** for admission, this Court passed the following order; _“Admit. The learned Government Pleader takes notice for respondents 1 to 3. The learned Standing Counsel takes notice for the 4[th] respondent._ _I notice that the assertion of the petitioner is that she is operating services on the strength of temporary permits issued to her. If this be so, and if the petitioner is operating on the strength of such temporary permits, I deem it necessary that status quo as on today be maintained, and the applications, if any, filed by the petitioner for re-issue of temporary permits be considered by the competent authority untrammelled by Ext.P3 notification dated 15.3.2017 and notification dated 23.3.2017.”_ 3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for KSRTC representing the 4[th] respondent. 4. The issue raised in this Writ Petition as to the challenge made against Exhibit-P3 Gazette notification dated 15.3.2017 is covered in favour of the petitioner by the judgment of the learned Single Judge in W.P.(C) No.11825 of 2017 and connected cases. The challenge **WP(C).No.16172 of 2017** **4** made against that judgment by KSRTC ended in dismissal by the judgment dated 20.8.2018 in W.A.No.1098 of 2018 and connected cases, i.e., _**Kerala State Road Transport Corporation v. Saju Varkey and Others [2018 (4) KHC 617]**_ . Paragraphs 13 to 18 of the said judgment read thus: “13. On a consideration of the submissions made on this issue, we find that the law governing the formulation of schemes is to be found in Sections 99 and 100 of the Motor Vehicles Act. The said provisions mandate that, if the State Government is of the opinion that, for the purpose of providing efficient, adequate, economical and properly guaranteed road transport services in relation to any area or route or operation thereto, these road transport services should be run and operated by the STU’s to the exclusion, either complete or partial, of private stage carriage operators, a proposal in the official gazette shall be published as provided under Section 99 of the Act. Objections to the said proposal will be invited before the State Government under Section 100, and after considering the objections and after affording an opportunity to the objectors or their representatives, and the representatives of the STU, the State government may approve or modify such proposals. The same procedure is followed for the purposes of **WP(C).No.16172 of 2017** **5** modifying an existing scheme, as seen from Section 102. 14. The provisions of Sections 99, 100 and 102 indicate that the procedure to be followed, while introducing a scheme, or modifying an existing one, is one that is designed to ensure transparency and fairness in a matter involving pre-existing rights of private transport operators. It follows, therefore, that there cannot be any finalization of a scheme, which is different from the one that was proposed, and in respect of which objections were invited. The introduction of a restrictive element (in the instant case, the stipulation that the maximum distance limit would apply to the saved permits), while finalising a draft that did not contain such a stipulation has, therefore, to be seen as breaching the aforesaid statutory safeguard. A question arises, however, as to whether, in these cases, the petitioners had a preexisting right, relatable to Ext.P5 scheme, to operate ordinary and OLS services without any restriction as regards distance? Although the learned counsel for the respondent KSRTC would vehemently contend that the said rights accrued to the private operators, not through Ext.P5 scheme, but only through Ext.P9 G.O., we are of the view that the rights/privileges granted to the petitioners through Ext.P9 G.O. cannot be seen as divorced from Ext.P5. 15. As already noted, Ext.P9 G.O. was issued in the wake of Ext.P7 scheme, that deprived private **WP(C).No.16172 of 2017** **6** operators of their right to operate higher class of services in the State, and the rights granted through the G.O. were with a view to ameliorate their situation. The rights that they obtained, in respect of stage carriage operation, were pursuant to Ext.P5 scheme on notified routes and Ext.P9 G.O. for operation in the State. The modification proposed by the State, through Ext.P10 notification, was with a view to incorporate their rights, as obtained through Ext.P9 G.O., in Ext.P5 Scheme, through the modification procedure under Section 102. It is in this backdrop that we have to consider the pre-existing rights of the private transport operators, prior to the modification process. 16. Thus viewed, the conclusion is inescapable that, Ext.P10 draft scheme proposed to retain the rights obtained by the private operators through Ext.P9 G.O, while modifying Ext.P5 Scheme, and while finalising the said draft scheme, the State Government could not have made the stipulation with regard to maximum distance applicable to the permits saved by Ext.P5 scheme. We therefore find in favour of the petitioners on the said issue and quash Clause (4) of Ext.P13 scheme that makes the maximum distance in Rule 2 (oa) of the KMV Rules applicable to the saved permits. _Re: Challenge to the amendment of the Rule_ 17. As regards the challenge in the writ petitions to the validity of the amendments brought about to the **WP(C).No.16172 of 2017** **7** Kerala Motor Vehicle Rules through Ext.P12 notification, it needs to be noted that the contentions raised are more or less identical to those raised in respect of the challenge to the modified scheme. It is contended that, insofar as Rule 2 (oa), as amended, contained a stipulation of maximum distance of 140 km, in the definition of Ordinary Limited Stop Services, but this stipulation was not there in the draft Rule that was notified through Ext.P11 notification, the principles of natural justice, as envisaged in the statutory procedure, had been breached, thereby vitiating the amendment and rendering it invalid. Although, at first blush, it appeared to us that the same reasons that led to the quashing of the impugned clause in the modified scheme would lead us to hold the amended Rule also as invalid, we find on a closer scrutiny, that the right to operate ordinary and OLS services, without distance restrictions, was one that accrued to private operators affected by Exts.P5 and P7 schemes, in terms of the said schemes, read with Ext.P9 G.O. In other words, there was no pre-existing right in the private operators, conferred under the MV Act and Rules, to operate an OLS service. 18. Such being the case, the draft amendment introduced, for the first time, a definition of Ordinary Limited Stop Service in the Rules. Although the definition contained in the draft notification did not stipulate a maximum distance, it is difficult to **WP(C).No.16172 of 2017** **8** conceive of any objection that a private operator could have raised against the introduction of a new class of service for the first time. Similarly, the private operators could not have insisted that, the OLS service that was being introduced, had to be one without any stipulation as to maximum distance, for that would tantamount to dictating a policy to the State Government. Under the circumstances, we cannot accept the contention urged on behalf of the petitioners that, in introducing a stipulation as regards maximum distance, while finalising the draft Rules, the State Government had breached the statutory procedure. We also note that, as a matter of fact the State Government did consider the objections raised with regard to the stipulation, in the draft Rule, that the vehicle used for the OLS service could not be older than ten years from the date of registration, and removed the said stipulation from the definition of OLS service while notifying the amended Rule. We therefore reject the challenge to the validity of the amendment, and to Ext.P12 notification that notified the same. The writ petitions are thus partly allowed, quashing clause (4) of Ext.P13 scheme, and repelling the challenge against Ext.P12 notification and the amendment notified thereunder.” (Underline supplied) **WP(C).No.16172 of 2017** **9** In the result, this writ petition is disposed of in terms of the law laid down by the Division Bench of this Court in _**Saju Varkey's case (supra)**_ . **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/6/7 **WP(C).No.16172 of 2017** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE NOTIFICATION VIDE NO. 536/B2/2016/ TRAN DATED 19.2.2016 ISSUED BY 1ST RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE TEMPORARY PERMIT WITH ITS NO.P.TEM/7/123/2017 DATED 20.1.2017** **EXHIBIT P3 TRUE COPY OF THE NOTIFICATION VIDE GO(P) NO.6/2017/TRAN DATED 15.3.2017(S.R.O NO. 127/2017) ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR REISSUE OF FOUR MONTHS TEMPORARY PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 9.5.2017** **EXHIBIT P5 TRUE COPY OF THE CHELAN RECEIPT DATED 9.5.2017** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 12.4.2017 IN WPC NO 13155/2017**