Shaji Kuruvilla and Chelsia Theresa George v. Regional Transport Authority Ernakulam, The Secretary Regional Transport Authority, Ernakulam, and Kerala State Road Transport Corporation

## **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.8130 OF 2018(M)** ## **PETITIONERS:** |**1**|**SHAJI KURUVILLA**| |---|---| ||**14/129, MONUVILLA, VADAVATHOOR P.O.,**| ||**KOTTAYAM - 686 010.**| |**2**|**CHELSIA THERESA GEORGE**| ||**D/O. LATE GEORGE CHERIYAN, PANACHIKALAYIL**| ||**HOUSE, VETTIMUGAL P.O., ETTUMANOOR, KOTTAYAM.**| ||**BY ADVS.**| ||**SRI.G.PRABHAKARAN**| ||**SMT.R.PADMAKUMARI**| ||**SRI.K.T.RAVEENDRAN**| ## **RESPONDENTS:** |**1**|**THE REGIONAL TRANSPORT AUTHORITY ERNAKULAM**| |---|---| ||**REPRESENTED BY ITS SECRETARY - 682 030.**| |**2**|**THE SECRETARY**| ||**REGIONAL TRANSPORT AUTHORITY,**| ||**ERNAKULAM - 682 030.**| |**3**|**THE KERALA STATE ROAD TRANSPORT CORPORATION**| ||**REPRESENTED BY ITS CHAIRMAN AND MANAGING**| ||**DIRECTOR, TRANSPORT BHAVAN, PATTOM,**| ||**THIRUVANANTHAPURAM - 695 001.**| **R1, R3 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. 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:** 2 WP(C)8130 OF 2018 ## **JUDGMENT** The 1[st] petitioner is the holder of Ext.P1 regular permit on the route Kottayam-Perikkallur, in respect of stage carriage bearing registration No.KL-05/AP-3738. The 2[nd] petitioner is the holder of Ext.P2 regular permit, which was transferred to his name after the demise of his father, on the route Kottayam-Perikkallur, in respect of stage carriage bearing registration No.KL-05/AL-3699. The applications for renewal of those permits are pending consideration. Ext.P7 is the temporary permit granted to the 1[st] petitioner and Ext.P8 is the temporary permit granted to the 2[nd] petitioner under Section 87(1)(d) of the Motor Vehicles Act, 1988, in respect of their stage carriages bearing registration Nos.KL-05/AP-3738 and KL-05/AL-3699, which were valid till 09.06.2018. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P9 and P10 proceedings dated 20.01.2018 of the Regional Transport Authority. The further relief sought for is a writ of mandamus commanding the respondents to consider Exts.P5, P6, P11 and P12 petitions so that status quo is maintained to 3 WP(C)8130 OF 2018 operate in continuation as per Exts.P7 and P8 temporary permits on the route Kottayam-Perikkallur operating with stage carriages bearing registration Nos.KL-05/AP-3738 and KL05/AL-3699, untrammeled by the amendment to Rule 2(oa) of KMV Rules limiting the route length upto 140 kms, till the disposal of the writ petition, challenging the amendment of Rule 2(oa) of the Kerala Motor Vehicles Rules. 2. On 09.03.2018, when this writ petition came up for admission, this Court granted an interim stay to the effect that, if the petitioners are having valid temporary permits in force, status quo shall be maintained. 3. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for respondents 1 and 2 and also the learned Standing Counsel for KSRTC, representing the 3[rd] respondent. 4. The issue raised in this Writ Petition as to the challenge made against Exts.P9 and P10 proceedings dated 20.01.2018 of the Regional Transport Authority, which are issued based on G.O.(P)No.06/2017/Tran dated 15.03.2017 and G.O.(P)No.8/2017/Tran. dated 23.03.2017, is covered in 4 WP(C)8130 OF 2018 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 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 5 WP(C)8130 OF 2018 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 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 6 WP(C)8130 OF 2018 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 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 7 WP(C)8130 OF 2018 (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 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 8 WP(C)8130 OF 2018 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) 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 setting aside Exts.P9 and P10 orders dated 20.01.2018 and by directing the 1[st] respondent Regional Transport Authority to reconsider the applications for renewal of regular permits of the respective vehicles, if pending consideration, taking note of the law laid down by the Division Bench of this Court in the decision 9 WP(C)8130 OF 2018 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** 10 WP(C)8130 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGULAR PERMIT OF THE 1ST PETITIONER DATED 13.10.2011. EXHIBIT P2 TRUE COPY OF THE REGULAR PERMIT OF THE 2ND PETITIONER DATED 18.12.2012 ALONG WITH ENDORSEMENT. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 19.05.2017 IN W.P.C.NO. 16561/2017. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 16.05.2017 IN W.P.(C).NO. 16172/2017. EXHIBIT P5 TRUE COPY OF THE REPLY FILED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT DATED 31.07.2017. EXHIBIT P6 TRUE COPY OF THE REPLY FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT DATED 31.07.2017. EXHIBIT P7 TRUE COPY OF THE TEMPORARY PERMIT OF THE 1ST PETITIONER DATED 19.01.2018. EXHIBIT P8 TRUE COPY OF THE TEMPORARY PERMIT OF THE 2ND PETITIONER DATED 25.01.2018. EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE RTA WITH ITS ORDER NO. C2/192996/2017/E DATED 20.01.2018. EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS OF THE RTA WITH ITS ORDER NO. C4/45873/2012/E DATED 20.01.2018. EXHIBIT P11 TRUE COPY OF THE REPLY FILED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT DATED 01.03.2018. EXHIBIT P12 TRUE COPY OF THE REPLY FILED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT DATED 01.03.2018.** **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**