Tomy J Alumkal 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.21173 OF 2017(V)** ## **PETITIONER:** **TOMY J ALUMKAL AGED 46 YEARS ALUMKAL HOUSE, ANICKAD EAST P.O., KOTTAYAM.** **BY ADV. SRI.P.DEEPAK** ## **RESPONDENTS:** |**1**|**THE GOVERNMENT OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**MINISTRY OF TRANSPORT, GOVERNMENT**| ||**SECRETARIAT,THIRUVANANTHAPURAM-695001**| |**2**|**THE REGIONAL TRANSPORT AUTHORITY**| ||**ERNAKULAM-682030**| |**3**|**THE SECRETARY**| ||**REGIONAL TRANSPORT AUTHORITY,ERNAKULAM-682030**| |**4**|**THE KERALA STATE ROAD TRANSPORT CORPORATION**| ||**REPRESENTED BY ITS CHAIRMAN & MANAGING**| ||**DIRECTOR,TRANSPORT BHAVAN, PATTOM,**| ||**THIRUVANANTHAPURAM-695004**| **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)21173 OF 2017 ## **JUDGMENT** The petitioner is the holder of a regular permit on the route Pathanamthitta-Chittarikkal. The application for renewal of that permit is pending consideration. Ext.P1 is the temporary permit granted to the petitioner under under Section 87(1)(d) of the Motor Vehicles Act, 1988, in respect of stage carriage bearing registration No.KL-05/AN-3699, which was valid till 16.08.2017. Ext.P2 is the application for renewal of temporary permit granted to the petitioner, which is pending consideration. 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 produced and marked as Ext.P3, to the extent it prescribes a maximum distance of 140 kms for Ordinary Limited Stop Services is ultra vires 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 Constitution of India. The further relief sought for is a writ of certiorari to quash Ext.P4 to the extent it stipulates that the maximum distance prescribed in Rule 2(oa) of the Kerala Motor Vehicles Rules, 1989 shall apply to the 3 WP(C)21173 OF 2017 saved permits. 2. On 28.06.2017, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 to 3. The learned Standing Counsel took notice for the 4[th] respondent. The learned counsel for the petitioner submitted that the petitioner is operating services on the strength of temporary permit issued to him. This Court granted an interim order to the effect that, if the petitioner is operating services on the basis of temporary permit, status quo as on that day shall be maintained and Ext.P2 application filed by the petitioner for reissue of temporary permit shall be considered, untrammeled by Exts.P3 and P4. 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. The issue raised in this Writ Petition as to the challenge made against Ext.P3 Gazette notification dated 15.03.2017 and Ext.P4 notification dated 23.03.2017 is 4 WP(C)21173 OF 2017 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 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)21173 OF 2017 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)21173 OF 2017 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)21173 OF 2017 (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)21173 OF 2017 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 directing consideration of the application for renewal of the regular permit, 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 9 WP(C)21173 OF 2017 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)21173 OF 2017 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE TEMPORARY PERMIT VALID TILL 16/8/2017 EXHIBIT P2 A TRUE COPY OF THE APPLICATION FOR REISSUE OF TEMPORARY PERMIT DATED 13/6/2017 EXHIBIT P3 A TRUE COPY OF THE NOTIFICATION NO.G.O.(P) NO.6/2017/ TRAN DATED 15/3/2017 EXHIBIT P4 TRUE COPY OF G.O.(P) NO.8/2017/TRAN DATED 23/3/2017 EXHIBIT P5 A TRUE COPY OF THE INTERIM ORDER IN WPC NO.11825/2017** ## **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**