NAFSAL AFSAL v. GOVERNMENT OF KERALA and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** ## **WP(C).No.38993 OF 2017(Y)** ## **PETITIONERS:** |**1**|**NAFSAL AFSAL,**| |---|---| ||**S/O. MOHAMMED KOYA, VALAPPIL POTTAMMEL HOUSE,**| ||**CHEEKODE, CHERUVAYOOR, MALAPPURAM.**| |**2**|**R. THANKAVELU,**| ||**S/O. RAMAN CHETTIYAR, TAGORE NAGAR,**| ||**KALMANDAPAM, PALAKKAD.**| ||**BY ADV. SRI.K.V.GOPINATHAN NAIR**| |**RESPONDENTS**<br>**:**|| |**1**|**GOVERMENT OF KERALA,**| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**TRANSPORT (B) DEPARTMENT, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE REGIONAL TRANSPORT AUTHORITY,**| ||**MALAPPURAM, REPRESENTED BY THE SECRETARY,**| ||**PIN - 676 505.**| |**3**|**THE REGIONAL TRANSPORT AUTHORITY,**| ||**PALAKKAD, REPRESENTED BY THE SECRETARY,**| ||**PIN - 678 014.**| |**4**|**KERALA STATE ROAD TRANSPORT CORPORATION**| ||**REPRESENTED BY THE MANAGING DIRECTOR,**| ||**TRANSPORT BHAVAN,**| ||**THIRUVANANTHAPURAM - 695 023.**| ||**R1, R4 BY ADV. SRI.P.C.CHACKO, SC, KERALA**| ||**STATE ROAD TRANSPORT CORPN.**| ||**SRI.P.SANTHOSH KUMAR, SPL.GP**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)38993 OF 2017 ## **JUDGMENT** The 1[st] petitioner is the holder of Ext.P1 regular permit on the route Kozhikode-Palakkad (via) Malappuram, in respect of stage carriage bearing registration No.KL-10/AV-997 and Ext.P2 regular permit on the route Perinthalmanna touching Manjeri, in respect of stage carriage bearing registration No.KL-10/AW-997. The 2[nd] petitioner is the holder of a regular permit on the route Anakkatty - Kozhikode Medical College, in respect of stage carriage bearing registration No.KL-09/AE8082, which had expired. The applications for renewal of those permits are pending consideration. The petitioners were operating the service on the strength of the temporary permits granted to the petitioners under under Section 87(1)(d) of the Motor Vehicles Act, 1988. The petitioners have 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 to the extent it prescribes a maximum distance of 140 kms for Ordinary Limited Stop Services is ultra virus Sections 71, 80, 96 and 212 of the Motor Vehicles Act, 1988 apart from being in violation of Articles 14 and 19(1)(g) of the 3 WP(C)38993 OF 2017 Constitution of India. 2. On 05.12.2017, 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 to the effect that, status quo in respect of Exts.P1 to P3 shall be maintained. 3. Heard the learned counsel for the petitioners, the learned 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 Ext.P4 Gazette notification dated 15.03.2017 and Ext.P5 notification dated 23.03.2017 is covered in favour of the petitioners 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 4 WP(C)38993 OF 2017 ## 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 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 5 WP(C)38993 OF 2017 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 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, 6 WP(C)38993 OF 2017 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 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 7 WP(C)38993 OF 2017 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 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 8 WP(C)38993 OF 2017 clause (4) of Ext.P13 scheme, and repelling the challenge against Ext.P12 notification and the amendment notified thereunder.” (Underline supplied) 5. 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)** and by directing consideration of the applications for renewal of the regular permits, if pending consideration, taking note of the law laid down by the Division Bench of this Court in the decision referred to supra. A decision in this regard shall be taken, strictly in accordance with law, as expeditiously as possible, at any rate within a period of two months from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 9 WP(C)38993 OF 2017 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE REGULAR PERMIT IN RESPECT OF KL-10/AV 997** **EXHIBIT P2. TRUE COPY OF THE REGULAR PERMIT IN RESPECT OF KL-10/AW 997 EXHIBIT P3. TRUE COPY OF THE REGULAR PERMIT HOLDING BY THE 2ND PETITIONER** **EXHIBIT P4. TRUE COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT AS PER G.O. (P).NO.6/2017 DATED 15.3.2017 EXHIBIT P5. TRUE COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT AS PER G.O. (P).NO.8/2017 DATED 23.3.2017 PUBLISHED ON 25.3.2017 EXHIBIT P6. TRUE COPY OF THE INTERIM ORDER IN W.P. (C).NO.26204/2017** ## **RESPONDENT'S EXHIBITS:NIL** ## **TRUE COPY** ## **P.A. TO JUDGE**