Fazalool Rahman K S/o Abdul Shukoor Moula v State 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.29471 of 2017** ## **PETITIONER:** **FAZALOOL RAHMAN K S/O.ABDUL SHUKOOR MOULAVI,SHADULI MANZIL, MANGADAV CHAL, AROLI.P.O, PAPPINISSERY, KANNUR.** **BY ADV. SRI.I.DINESH MENON** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**MINISTRY OF TRANSPORT,SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE REGIONAL TRANSPORT AUTHORITY**| ||**KANNUR-670001.**| |**3**|**THE SECRETARY**| ||**REGIONAL TRANSPORT AUTHORITY,KANNUR-670001.**| |**4**|**THE KERALA STATE ROAD TRANSPORT CORPORATION**| ||**REPRESENTED BY ITS CHAIRMAN & MANAGING**| ||**DIRECTOR,**| ||**TRANSPORT BHAVAN,PATTAM,**| ||**THIRUVANANTHAPURAM-695034.**| ||**BY ADV. SRI.P.C.CHACKO, SC,**| ||**KERALA STATE ROAD TRANSPORT CORPN.**| ||**SRI. PAUL ABRAHAM VAKKANAL, SR GP.**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)29471 OF 2017 ## **JUDGMENT** The petitioner is the holder of a regular permit on the route Thirunelli-Payyannur, which has already been expired. The application for renewal of that permit is pending consideration. Ext.P1 is the temporary permit granted to the petitioner under Section 87(1)(d) of the Motor Vehicles Act, 1988 in respect of stage carriage bearing registration No.KL13/AG-5851, which was valid till 19.08.2017. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that the Kerala Motor Vehicles (1[st] Amendment) Rules, 2017 dated 15.03.2017 produced as Ext.P2 to the extent it prescribes a maximum distance of 140 kms for ordinary limited stop services is ultra virus Sections 69, 70, 71, 72, 80 and 81 of the Motor Vehicles Act, 1988 apart from being in violation of Articles 14 and 19(1)(g) and 21 of the Constitution of India; and a declaration that the Kerala Motor Vehicles (1[st] Amendment) Rules, 2017 dated 23.03.2017, produced as Ext.P3 to the extent it prescribes (Rule 2(oa), a maximum distance of 140 kms for ordinary 3 WP(C)29471 OF 2017 limited stop services is ultra virus Sections 69, 70, 71, 72, 80 and 81 of the Motor Vehicles Act, 1988 apart from being in violation of Articles 14 and 19(1)(g) and 21 of the Constitution of India. The further reliefs sought for are a writ of certiorari to quash Ext.P3 notification dated 15.03.2017; and a writ of mandamus commanding the respondents to accept the application for re-issue of temporary permit notwithstanding the distance embargo brought in clause 4 of the notification dated 23.03.2017. 2. On 13.09.2017, when this writ petition came up for admission, the learned Government Pleader took notice for respondents 1 to 3. The learned Standing Counsel took notice for the 4[th] respondent. This Court granted an interim order directing to accept an application from the petitioner for temporary permit, which will be considered untrammeled by Exts.P2 and P3 notifications at the earliest. 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for KSRTC, representing the 4[th] respondent. 4 WP(C)29471 OF 2017 4. The issue raised in this Writ Petition as to the challenge made against Ext.P2 Gazette notification dated 15.03.2017 and Ext.P3 Gazette notification dated 23.03.2017 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 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 5 WP(C)29471 OF 2017 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 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 pre-existing 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 6 WP(C)29471 OF 2017 ## 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 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 Kerala 7 WP(C)29471 OF 2017 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 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 8 WP(C)29471 OF 2017 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) 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** **yd** 9 WP(C)29471 OF 2017 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TEMPORARY PERMIT DATED 24.4.2017 EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO.GO(P)NO.06/2017/TRAN DATED 15.3.2017 EXHIBIT P3 TRUE COPY OF THE NOTIFICATION NO.GO(P)NO.8/2017/TRAN DATED 23.3.2017 EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER IN WP(C)NO.27381/2017 DATED 18.8.2017.** ## **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**