Sunilkumar E.K. and others v. The State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 22ND DAY OF NOVEMBER 2013/1ST AGRAHAYANA, 1935 ## **W.P.(C).No.24688 of 2013 (I)** -------------------------------------------------- PETITIONERS:- -------------------------- 1. SUNILKUMAR E.K., AGED 45 YEARS, S/O.KRISHNANKUTTY, KARTHEDAM, MALIPURAM, NORTH PARAVUR. 2. AMBROSE.P.M., AGED 44 YEARS, S/O.MICHAEL, PAREKKATTIL HOUSE, 5/209, NJARAKKAL P.O. 3. VENUGOPAL, AGED 44 YEARS, S/O.LAKSHMANAN, H.NO.3/172, CHERIKKATHARA, ELAMKUNNAPUZHA, NORTH PARAVUR. 4. P.G.POLY, AGED 56 YEARS, S/O.GIRVADIS, HOUSE NO.415 (7/337), PALAKKAPPILLY HOUSE, VATTAPARAMBU, THATHAPPILLY P.O., MANNAM, NORTH PARAVUR. 5. UNNI.T.K., AGED 54 YEARS, S/O.KUMARAN, THALIKAPURATHU HOUSE, KUDUNGASSERY P.O., NAYARAMBALAM, ERNAKULAM. 6. VINCENT JOSEPH LIVERA, AGED 43 YEARS, S/O.ANTONY LIVERA, ITHITHARA HOUSE, MULAVUKAD P.O., ERNAKULAM. 7. RAJESH.O.A., AGED 36 YEARS, S/O.ANIYAN, H.NO.359/6, OTTATHARA HOUSE, NJARAKKAL.P.O., NORTH PARAVUR, ERNAKULAM. 8. ARUN.P.C., AGED 31 YEARS, S/O.CHENDANKUTTY.P.C., PERATHAN HOUSE, OCHANTHURUTH P.O., ERNAKKULAM. 9. SUDHA, AGED 60 YEARS, W/O.BABU, 338, ERETHARA HOUSE, WARD 6, MULAVUKAD, ERNAKULAM - 682 504. 10. SARASWATHY, AGED 58 YEARS, W/O.KRISHNAN, PERUPADATH HOUSE, ELAMKUNNAPUZHA.P.O., ERNAKULAM - 682 503. 11. SUBISHA.R.S., AGED 35 YEARS, W/O.RAJEEVAN AYICHOTH, RAMADIYIL HOUSE, S.MALIPPURAM, AZHEEKAL.P.O. 12. ROLAND DSILVA, AGED 48 YEARS, S/O.PASCAL DSILVA, MANNEZHATH, PONNARIMANGALA, MULAVUKAD, ERNAKULAM - 682 504. W.P.(C).NO.24688 OF 2013 **- 2 -** ## 13. DINESAN, AGED 48 YEARS, S/O.KESAVAN, - 6/714, THUNDIYIL HOUSE, MULAVUKAD, ERNAKULAM. 14. GEORGE.K.T., AGED 48 YEARS, S/O.THOMAS, KOLLATTUTHARA, BOLGHATTY, PONNARIMANGALAM, ERNAKULAM-682504. BY ADVS.SRI.SHAJI P.CHALY, SRI.R.SANJITH, SMT.C.S.SINDHU KRISHNAH. ## RESPONDENTS:- -------------------------- ## 1. THE STATE OF KERALA, - REPRESENTED BY ITS SECRETARY, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ## 2. TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014. ## 3. REGIONAL TRANSPORT OFFICER, - REGIONAL TRANSPORT OFFICE, 2 FLOOR, A 3 BLOCK, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030. ## 4. CORPORATION OF KOCHI, PARK AVENUE ROAD, ERNAKULAM, COCHIN - 682 011, REPRESENTED BY ITS SECRETARY. ## 5. DISTRICT POLICE CHIEF, CITY POLICE OFFICE, 11TH FLOOR, REVENUE TOWER, OPP. BOAT JETTY, ERNAKULAM - 682 018. R1, R2, R3 & R5 BY SENIOR GOVERNMENT PLEADER SRI.M.MUHAMMED SHAFI. R4 BY STANDING COUNSEL SRI.P.K.SOYUZ. R4 BY STANDING COUNSEL SRI.N.RAVINDREN ACHARY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- WP(C).No.24688 of 2013 (I) -------------------------------------- ## **APPENDIX** ## PETITIONERS' EXHIBITS:- -------------------------------------- EXT.P1: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 1ST PETITIONER. EXT.P2: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 2ND PETITIONER. EXT.P3: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 3RD PETITIONER. EXT.P4: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 4TH PETITIONER. EXT.P5: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 5TH PETITIONER. EXT.P6: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 6TH PETITIONER. EXT.P7: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 7TH PETITIONER. EXT.P8: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 8TH PETITIONER. EXT.P9: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 9TH PETITIONER. EXT.P10: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 10TH PETITIONER. EXT.P11: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 11TH PETITIONER. EXT.P12: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 12TH PETITIONER. EXT.P13: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 13TH PETITIONER. EXT.P14: COPY OF THE APPLICATION FOR CITY PERMITS OF THE 14TH PETITIONER. EXT.P15: COPY OF THE NEWS ARTICLE PUBLISHED IN MALAYALA MANORAMA DAILY DATED 3/9/2013. - EXT.P16: COPY OF THE RIGHT TO INFORMATION APPLICVATION PREFERRED BY THE 1ST PETITIONER. - EXT.P17: COPY OF THE NEWS ARTICLE PUBLISHED IN MALAYALA MANORAMA DAILY DATED 06/10/13. EXT.P18: COPY OF THE REPRESENTATION PREFERRED TO THE 3RD RESPONDENT. EXT.P19: TRUE COPY OF THE REPLY DATED 18.10.2013 BEARING NO.G7/224/2013/RTI/E. W.P.(C).NO.24688 OF 2013 - 2 - ## RESPONDENTS' EXHIBITS:- --------------------------------------- EXT.R3(a) - TRUE COPPY OF THE MINUTES OF THE MEETING HELD ON 16.07.2012. EXT.R3(b) - TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 24.07.2012. EXT.R3(c) - TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 19.11.2012. - EXT.R3(d) - TRUE COPY OF THE DECISION DATRED 29.11.2012. EXT.R3(e) - TRUE COPY OF THE NEWS ITEMS PUBLISHED IN MATHRUBHUMI DAILY DATED 20.06.2013. vku/( true copy ) ## K. Vinod Chandran, J. -------------------------------------- ## W.P.(C).No.24688 of 2013-I -------------------------------------Dated this the 22[nd] day of November, 2013 ## **JUDGMENT** The petitioners are persons who are autorickshaw drivers and are operating the same as contract carriages to eke out their livelihood. The petitioners grievance is that the decision of the Regional Transport Authority (for short “RTA”) to grant permits within the Corporation of Cochin; to only residents of the Corporation of Cochin, is, arbitrary and discriminatory. The issue to be resolved in the above writ petition is the arbitrariness and discrimination projected by the petitioners; pitted against the practical difficulties of the authorities. 2. Admittedly, the petitioners are all persons having valid contract carriage permits to operate in the Panchayat areas in and around the Corporation area of Cochin. The petitioners contend that one fine morning they were intimated of the decision of the RTA, Ernakulam to grant 2,815 autorickshaw permits within the Corporation of Cochin. However, when they approached the RTA with an application, the Registering Authority refused to accept the same on the ground that they are all residents outside the Corporation limits. In that context **- 2 -** W.P.(C).No.24688/2013-I they approached this Court with the above writ petition and sought for consideration of their application without looking into the situs of their residence. The petitioners claim that it is after a long period of time that fresh auto permits are being issued within the Corporation limits and restricting such issuance only to the persons who are residing within the Corporation limits would be a clear act of discrimination and the same is vitiated by arbitrariness. 3. Learned Government Pleader while admitting that no fresh permits had been granted after 1998, contends that the decision of the authorities is not one which was taken on a fine day and that considerable work and deliberation had gone into such a decision. It is submitted that in the past two years 8 Adalats were conducted by the Motor Vehicles Department to arrive at the exact figure of autorickshaws operating within the city limit with valid permits. Public notices were issued and Adalats were conducted to verify as to how many autorickshaws were plying within the city limits. As per G.O.(P) No.189/95/PW&T dated 12.12.1998, the Government had limited the number of permits for autorickshaws within the Corporation limits of Kochi to 4,000. In the Adalats conducted, it was revealed that only 1,387 **- 3 -** W.P.(C).No.24688/2013-I autorickshaws having valid permits are running within the Corporation limits. 4. There is, hence, shortage of autorickshaws and this caused considerable difficulty to the travelling public. As a direct consequence, the autorickshaws plying outside the boundaries of the Corporation also made inroads into the Corporation limits. Though this, to a great extent, alleviated the problems of the travelling public, it created conflict in so far as the autorickshaws with valid city permits oppose the same and in any event the operation of such autorickshaws, which did not have permits to operate within the city limits, were illegal. Litigations were also filed, which resulted in this Court issuing orders to prohibit operation of autorickshaws without permit to operate within the city limits. It was to settle such conflict with law and between permit owners and permitless owners of autorickshaws that the office of the RTO attempted to issue permits in accordance with the G.O., at least to ensure that the permits allowed as per the notification of the Government is satisfied. 5. Towards this end, to avoid any conflict between the autorickshaw drivers and with a view to ensure that sufficient travelling facility is provided to the public, meetings were **- 4 -** W.P.(C).No.24688/2013-I conducted with various authorities, of Police and Revenue and the leaders of the drivers' organization with the Respectful Mayor of Kochi chairing the proceedings. It was after much deliberation, the present decision was taken, is the argument of the learned Government Pleader. 6. The learned Government Pleader, with reference to the counter affidavit, also points out that a survey conducted by the Motor Vehicles Department and the Police revealed that in fact there were 10,000 autorickshaws plying within the city limits, the majority of which are unauthorized; having no permits to operate within city limits. In such circumstance, the Transport authorities had taken up the issue with the Government and has sought for enhancing the permits allowable within the Cochin Corporation to 7,500. However, pending consideration of such request, the authorities were constrained to commence issuance of permits due to acute shortage of travelling facility within the city limits. The Regional Transport Officer also contends, in the counter affidavit, that the restriction to limit the applications to residents in the city limits was only to avoid a large number of applications causing difficulties to the officials of the Department. Such restriction, it is also contended, is not discriminatory or arbitrary, since there is no **- 5 -** W.P.(C).No.24688/2013-I ulterior motive or intention to exclude anybody and the same is only a reasonable classification based on the existing facts. 7. The petitioners allege violation of Article 19(1)(g) and Article 21 of the Constitution of India. The learned counsel for the petitioners contends that the claim of the petitioners to carry on their occupation, cannot be curtailed on the ground, alone, of their having residences outside the city limits. Right to life, a fundamental right guaranteed under the Constitution of India to every citizen, encompasses within its ambit the right to livelihood also and, hence, the restriction is bad, it is strenuously urged. 8. The only bone of contention is with respect to the limitation in granting permits to persons residing outside the Corporation limits. It is pertinent that the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”) does not permit such restrictions. Autorickshaws are plied under the contract carriage permit issued under Section 73 of the Act, the grant of which is controlled by Section 74. The RTA, which is empowered to grant such permit under sub-section (2) of Section 74, is also conferred with the authority to impose any of the conditions mentioned in clauses (i) to (xiii). While the RTA has the power to specify an area of operation or the routes in which a contract carriage has to be **- 6 -** W.P.(C).No.24688/2013-I plied, in the permit itself, none of the conditions in sub-clause (ii) relates to the residence of the drivers or owners of autorickshaws. Though reasonable restrictions on the exercise of the right conferred under sub-clause (g) of Article 19(1) is permissible, no such law evidently has been made regulating the grant of contract carriage permits to persons who are residing within a particular area. 9. It is trite that a public authority however laudable the object, cannot infringe upon the right guaranteed under the Constitution of India. The reference to the judgment of a learned Single Judge in _**Suhara v. K.P.S.C.**_ **[2012 (1) KLT 402]** in the context is apposite. One of the questions raised in the said case was whether while making district-wise appointments weightage can be given to the persons residing within the District itself. This Court held that Constitutional prohibition cannot be watered down by projecting the practical difficulties of the executive. The practical difficulties expressed in the counter affidavit of the Department; that without such a restriction with respect to applications there would be a flood of applications putting the public authority into considerable difficulty; hence, cannot be countenanced. The huge population of the country in general and **- 7 -** W.P.(C).No.24688/2013-I the high density within this particular State and the rampant unemployment cannot be ignored by any public authority and the load of work cannot absolve them from exercising the powers and authorities conferred in a public office with due regard and compliance of the Constitutional provisions. 10. The fact of the petitioners having valid permits in the neighbouring Panchayat areas also cannot be a reason to prohibit their applications, though that being a relevant consideration at the time of processing. The procedure prescribed by law for depriving a person of his fundamental right must conform to norms of justice and fair play, as has been laid down in _**Olga Tellis v. Bombay Municipal Corporation**_ **[AIR 1986 SC 180].** In the context of no law being in existence restricting the grant of permits for plying autorickshaws within the city limits, to only residents of that city, the limitation imposed by the respondent-authority in the present case cannot be sustained by this Court. While this Court does not express any opinion as to whether in fact or on law the petitioners are entitled to grant of permit or not, necessarily their applications cannot be rejected at the threshold on the ground of their having no residence within the Corporation limits. **- 8 -** W.P.(C).No.24688/2013-I 11. It is submitted by the learned Government Pleader that the process of granting permit is going on and that the last date for receipt of application is already over. In the present writ petition there are only 14 (fourteen) petitioners, who have sought for consideration of their applications along with the applications accepted by the respondent-authorities. This Court is of the opinion that since the permits allowed within the Corporation has not been fully granted, the public authority shall accept the applications of the petitioners herein and pass appropriate orders, in accordance with law. The writ petition is allowed. No costs. Sd/K.Vinod Chandran Judge. vku/- ( true copy )