The Managing Partner, Mayilvahanan Motors v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940** ## **WP(C).No. 28094 of 2018** ## **PETITIONER :** **THE MANAGING PARTNER, (C.A.ABRAHAM, AGED 70 YEARS, S/O.ABRAHAM), MAYILVAHANAM MOTORS, SHORNUR, PALAKKAD DISTRICT. BY ADV. SAJU J.VALLYARA** ## **RESPONDENTS :** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF TRANSPORTS, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001**| ||**695001**| |**2**|**THE STATE TRANSPORT AUTHORITY,**| ||**THIRUVANANTHAPURAM- 695 001**| |**3**|**THE REGIONAL TRANSPORT AUTHORITY,**| ||**PALAKKAD, PIN – 678 001**| |**4**|**THE SECRETARY, REGIONAL TRANSPORT AUTHORITY,**| ||**PALAKKAD, PIN – 678 001**| **BY SMT MABLE C.KURIEN, GOVERNMENT PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 28094 of 2018** **2** ## **JUDGMENT** The petitioner, who is the registered owner of a stage carriage bearing registration No.KL- 09/N-8046 on the route Guruvayoor-Palakkad (via) Pattambi, Kulapully and Ottapalam as Limited Stop Ordinary Service, with Ext.P1 regular permit (which was valid till 25.08.2018) and Ext.P2 certificate of registration, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P5 decision dated 14.06.2017 of the 2[nd] respondent (Item No.2). The petitioner has also sought for a writ of mandamus commanding the 4[th] respondent to issue four months temporary permit in respect of the aforesaid stage carriage to operate on the said route by considering Ext.P4 application, untrammeled by Ext.P5. 2. On 20.08.2018, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government **WP(C).No. 28094 of 2018** **3** Pleader took notice for the respondents and sought time to file counter affidavit. This Court granted an interim order directing the 4[th] respondent to consider the request made by the petitioner in Ext.P4 for grant of temporary permit, untrammeled by Ext.P5 decision taken by the 2[nd] respondent, dated 14.06.2017, within a period of three weeks from that date. An order of _status quo_ as on 25.08.2018, in respect of the permit in question, was also granted. 4. On 07.01.2019, when this writ petition came up for consideration, the learned Government Pleader, on instructions from the 4[th] respondent, submitted that in terms of the interim order of this Court dated 20.08.2018, the petitioner was issued with a temporary permit, the validity of which expired on 04.10.2018 and that, thereafter, no applications have been made for temporary permit. The learned Government Pleader pointed out that the petitioner secured the interim order **WP(C).No. 28094 of 2018** **4** on 20.08.2018, without disclosing the fact that the motor vehicle tax in respect of the stage carriage bearing registration No.KL-09/N-8046 was paid only up to 30.06.2018. 5. Today, when the case is taken up for consideration, the learned Senior Government Pleader would point out the provisions of the Kerala Motor Vehicles Taxation (Amendment) Rules, 2018, whereby in rule 5 of the Kerala Motor Vehicles Taxation Rules, 1975, after the entries in column (2) against sub-item (ii) of item 2, for the existing proviso, the following proviso was substituted; “Provided that the period within which the tax is to be paid for the quarter commencing from 1[st] day of July, 2018 shall be up to the 30[th] day of September, 2018.” 6. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. **WP(C).No. 28094 of 2018** **5** 7. The challenge made against the decision of the State Transport Authority dated 14.06.2017, insofar as it relates to fixation of age limit for stage carriages in applying and granting fresh stage carriage permits was the issue raised in W.P.(C)No.24680 of 2017 and connected cases. By judgment dated 15.10.2018, those writ petitions are disposed of by setting aside the decision of the State Transport Authority dated 14.06.2017 and the said authority is directed to reconsider the matter. Paragraphs 17 to 25 and the last paragraph of the said judgment read thus: “17. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the decision of the State Transport Authority dated 14.6.2017 (Ext.P8 in W.P.(C)No.24680/2017) fixing age limit for stage carriages in applying and granting fresh regular stage carriage permits cannot be sustained in law, as the same is one issued in fragrant violation of the principles of natural justice, inasmuch as, no reasons whatsoever have been stated in the said decision, in **WP(C).No. 28094 of 2018** **6** support of fixation of age limits for stage carriages. 18. In **Subhash Chandra v. State of U.P. [(1980) 2 SCC 324)** , the Apex Court in the context of the provisions under the Motor Vehicles Act, 1939 held that the provisions under the Motor Vehicles Act are geared to public safety and not private profit and casts a solemn duty upon the authorities to protect Indian lives moving in buses, walking on roads, or even standing on margins. This aspect is exemplified on a bare perusal of the provisions of the Motor Vehicles Act, which makes it luminously clear that the Act has been enacted not for granting benefit to stage carriage operators or facilitate or guarantee profit and benefits to transport operators, but the object of regulating the entire field of motor vehicles, transport, traffic, road safety, compensation to victims of motor accidents, security, comfort and protection of passengers, public safety, prevention of pollution, protection of road conditions, regulation and control of transport vehicles including provision for grant of permits, preventing unhealthy competitions between the transporters amongst several other issues relating to motor vehicle and transports. It is therefore clear from a perusal of the provisions of the Act that the extent of the right to operate stage carriages under the Act is subservient and subject to the right, **WP(C).No. 28094 of 2018** **7** amongst others, to safe and secure transport of the travelling passengers and the right to pollution free environment and good road conditions of the public at large. [Paragraph 77: **Shaheed Khan and others v. State of M.P. and others (2013 (4) MPLJ 439)** ]. 19. In **K.M.Ismeth Ummer v. Regional Transport Authority and anr. [(2011) 15 SCC 288]** , the Apex Court, in the context of Section 72(2) of the Motor Vehicles Act, 1988, held that the expression ' _specified description_ ' is very wide and, therefore, the authorities under the Motor Vehicles Act are perfectly justified in placing restrictions for grant of the permit in public interest, which would include fixing the age of the vehicle also. 20. The learned counsel for the petitioner in W.P.(C)No.24680/2017 would contend that when the direction contained in Ext.P6 judgment of this Court dated 15.12.2016 in W.P. (C)No.33980/2015 and connected cases, while ordering reconsideration of the matter by the State Transport Authority, was only for fixation of maximum age of the vehicle to be used for conducting ordinary stage carriage services in the State, the 4[th] respondent State Transport Authority was not justified in fixing different age limits for ordinary stage carriages, city/town stage carriages and limited stop ordinary services, etc. 21. As held by the Apex Court in **K.M.Ismeth Ummer's case (supra)** , the authorities under **WP(C).No. 28094 of 2018** **8** the Motor Vehicles Act have the authority in placing restrictions for the grant of permit, in public interest, including fixation of the age of the vehicle. Therefore, any decision taken by the State Transport Authority in fixing different age limits for different types of stage carriage is legally permissible. 22. In **M.C.Mehta v. Union of India [(1997)8 SCC 770)** , a Three Bench Judge of the Apex Court held that the existing provisions under the Motor Vehicles Act, 1989 alone are sufficient to clothe the members of the Police force and the transport authorities with ample powers to control and regulate the traffic in appropriate manner, so that no vehicle being used in a public place, causes any danger to the public in any form. The requirement of maintaining the motor vehicle in the manner prescribed and its use if roadworthy in a manner, which does not endanger the public, has to be ensured by the authorities and this is the aim of the provisions enacted in the Motor Vehicles Act. 23. Though the petitioners in this batch of writ petitions, who are stage carriage operators, have a fundamental right to trade and commerce, guaranteed under Article 19(1) (g) of the Constitution of India, the said right cannot be extended or stretched to encompass a fundamental right to operate stage carriages unfettered by any conditions **WP(C).No. 28094 of 2018** **9** or restrictions in total disregard to the security, safety and convenience of the passengers and the public at large. Their fundamental right guaranteed under Article 19(1)(g) of the Constitution is inferior and subordinate and has to give way to the paramount consideration of the public safety, security and convenience of the passengers and other relevant considerations under the provisions of the Motor Vehicles Act and the Rules made thereunder. 24. In the result, these writ petitions are disposed of by setting aside the decision of the State Transport Authority dated 14.6.2017 (Ext.P8 in W.P.(C)No.24680/2017), and the said Authority is directed to reconsider the matter, with notice to the affected parties, including the stage carriage operators in the State, and take an appropriate decision regarding fixation of the age limits for stage carriages in applying and granting fresh regular stage carriage permits, taking note of the provisions under the Motor Vehicles Act and the Rules made thereunder and also the law laid down in the decisions referred to supra. 25. A decision in this regard shall be taken, 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. Till such orders are passed, status quo as on this date in respect of the **WP(C).No. 28094 of 2018** **10** permits/temporary permits, if any, issued to the petitioners shall be continued, if found necessary by issuing temporary permit of two months' duration to operate the service. Based on the orders passed by the State Transport Authority, the respective Regional Transport Authorities shall pass revised orders on the application preferred by the petitioners for grant of regular permit, if situation warrants. It is also ordered that till a fresh decision is taken by the State Transport Authority, based on the direction contained in this judgment, the issuance of regular permit for conducting stage carriage operation, with stage carriages above the age limit specified in the decision of the State Transport Authority dated 14.6.2017, shall be deferred by all the Regional Transport Authorities in the State.” 8. The learned counsel for the petitioner would submit that the petitioner is not using the vehicle as the respondents have not accepted the tax. In such circumstances, no further reliefs are required in this writ petition and the writ petition is, accordingly, closed; however without prejudice to the right of the petitioner to **WP(C).No. 28094 of 2018** **==> picture [15 x 8] intentionally omitted <==** approach the appropriate forum for redressal of his grievance regarding non-acceptance of motor vehicle tax in respect of stage carriage bearing Registration No.KL-09/N-8046. ## **Sd/-** ## **ANIL K.NARENDRAN,JUDGE** AV/29/1 **WP(C).No. 28094 of 2018** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXHIBIT P1** - **PHOTOCOPY OF THE REGULAR PERMIT VIDE NO.P.ST.9/1040/1998 IN RESPECT OF STAGE CARRIAGE KL-09-N-8046 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER** - **EXHIBIT P2 PHOTOCOPY OF THE REGISTRATION CERTIFICATE IN RESPECT OF STAGE CARRIAGE KL-09-N-8046** - **EXHIBIT P3 PHOTOCOPY OF THE APPLICATION FOR RENEWAL OF PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 27.07.2018** - **EXHIBIT P4** - **APPLICATION FOR THE ISSUE OF 4 MONTHS TEMPORARY PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ON 06.08.2018** - **EXHIBIT P5 PHOTOCOPY OF THE DECISION OF THE 2ND RESPONDENT HELD ON 14.06.2017 VIDE DEPARTMENT ITEM NO.2** **EXHIBIT P6 PHOTOCOPY OF THE INTERIM ORDER IN WP(C)NO.41063/2017-G DATED 20.12.2017.**