Palakkad Jilla Bus Operators Association v. Government of Kerala
2017-07-07
SHAJI P.CHALY
body2017
DigiLaw.ai
JUDGMENT : S.P. CHALY, J. 1. W.P.(C). Nos. 33075/2016 and 37936/2016 are filed challenging Ext. P6 proceedings issued by the second respondent dated 13.07.2016, whereby the path of traverse of seven notified routes published vide G.O.(P.) No. 42/2009/Tran. dated 14.07.2009 are finalised, contending that the said order amounts to modification of the notified routes finalised by the State Government. In the said writ petitions, stay of operation of Ext. P6 proceedings was granted by this Court, when the matters were admitted to the files. Writ petitions other than W.P.(C). No. 29022/2014 are filed by petitioners, whose application for grant of regular permit, grant of variation of permit, grant of temporary permit etc., etc., are not being considered in the light of the stay granted in the other two writ petitions referred to above. W.P.(C). No. 29022/2014 is filed by Ponnani Taluk Private Bus Operators Association and another seeking to declare that Route No. 25 Kozhikode-Guruvayur via Kuttippuram contained in Ext. P3 notification dated 14.07.2009 is not specific, and not in consonance with Section 2(38) as well as Section 100(3) of the Motor Vehicles Act, 1988 (for short the 'M.V. Act') and for other related reliefs. Learned counsel for the petitioner in the said writ petition submitted that in view of issuance of Ext. P6 order by the Regional Transport Authority, Palakkad which is under challenge in the two writ petitions, the reliefs sought for in the writ petition has become infructuous. The short discussion would make it clear that the subject matter of the writ petitions are materially and relatively connected and therefore, I heard them together and propose to pass a common judgment. Facts discernible from W.P.(C). No. 33075/2016 are referred to dispose of the writ petitions. 2. Petitioners are association of private stage carriage operators. According to them, the second respondent has unilaterally modified the terms of an approved scheme of nationalisation and published by the first respondent under Section 100 of the M.V. Act, which is an unlawful and ultra vires act on the part of the second respondent, ostensibly undertaken in the guise of 'clarification' but virtually modified the terms of the approved scheme, which could be done only by the first respondent under Section 102 of the M.V. Act.
On 14.07.2009, first respondent approved and published a scheme of nationalisation notifying 31 routes enumerated in the Annexure to the said scheme to be operated by the third respondent in partial exclusion of the services existing in the private sector, evident from Ext. P1. Out of the 31 notified routes in the Annexure to Ext. P1, six notified routes marked as Serial Nos. 6, 7, 19, 21, 23 and 24 thereat, traverse through Palakkad District within the jurisdiction of the second respondent. On 12.02.2015, the second respondent acting on the request of the third respondent to fix the various route portions passing through Palakkad town area with intermediate points and distances decided to constitute a committee for the purpose of fixing the actual notified routes in Palakkad District with the existing notifications for the consideration and approval of the second respondent, evident from Ext. P2. It is also contended that Ext. P2 decision was taken in the teeth of the objections raised by the Kerala State Road Transport Corporation (for short the 'KSRTC') and the petitioners, that the exercise undertaken is wholly without jurisdiction and that the proper course is to move the Government under Section 102 of the M.V. Act. On 20.07.2015, a report submitted by the third respondent clarifying the exact path of the notified routes with intermediate points was published for general information, evident from Ext. P3. As per Ext. P4 proceedings, it was decided by the second respondent to obtain an additional report from the Kerala State Road Transport Corporation showing the exact intermediate points with exact path of traverse in Palakkad District through which they are operating between the places mentioned in the routes specified above in the Annexure to Ext. P1 Scheme. It was also decided that after obtaining the report from KSRTC, the second respondent shall take a final decision in the mater. In the meeting held on 05.12.2015, KSRTC filed Ext. P5 objection pointing out the lack of jurisdiction of the second respondent to undertake the proposed exercise. It is also stated that similar objections are submitted by the petitioners. 3. However, without even adverting to the specific plea of lack of jurisdiction expressly raised before it, first respondent has passed Ext.
In the meeting held on 05.12.2015, KSRTC filed Ext. P5 objection pointing out the lack of jurisdiction of the second respondent to undertake the proposed exercise. It is also stated that similar objections are submitted by the petitioners. 3. However, without even adverting to the specific plea of lack of jurisdiction expressly raised before it, first respondent has passed Ext. P6 order dated 13.07.2016 clarifying the intermediate places and the line of travel of the notified routes for the purpose of assessing the uniform assessment of overlapping distances on the notified routes. Thereupon, petitioners have submitted Exts. P7 and P7(a) representations before the District Collector, who is the Chairman of the second respondent and the District Collector for the time being suspended the operation of Ext. P6 decision, so as to enable the petitioners herein to move the first respondent. Accordingly, petitioners have submitted Ext. P8 and P8(a) respectively, before the first respondent seeking to take appropriate action under Section 102 of the M.V. Act to amend, modify or clarify, Ext. P1 scheme. Therefore, according to the petitioners, it is imperative that the first respondent State Government, takes a decision in the matter. Further, if Ext. P6 decision is allowed to stand, it would severely prejudice the petitioners herein and the individual operators, who are members of the petitioner Associations, since they would be subjected to face proceedings under Clause 4 of Ext. P1, as clarified by Ext. P6 for the reason that the routes covered by their permits come within the mischief of the clarification. 4. The third respondent has filed a counter affidavit, contending that the second respondent in its meeting held on 13.07.2016, in item No. 1 in the agenda, only clarified the intermediate points and path of traverse of the notified routes, passing through Palakkad District in Serial Nos. 6, 7, 19, 21, 23, 24 and 25 mentioned in the Annexure to Ext. P1 notification without modifying, changing or altering the original scheme published by the Government of Kerala. That apart, it is submitted that as per Section 100(2) of the M.V. Act, 1988, the Government of Kerala has finalised 31 notified routes. While originally publishing the scheme during 1960's, there was no ambiguity regarding the path of notified route between the intermediate points mentioned in the notified routes.
That apart, it is submitted that as per Section 100(2) of the M.V. Act, 1988, the Government of Kerala has finalised 31 notified routes. While originally publishing the scheme during 1960's, there was no ambiguity regarding the path of notified route between the intermediate points mentioned in the notified routes. However, elapse of fifty years have contributed many changes in the line of travel, emergence of roads, disappearance of roads etc., etc., between the intermediate points mentioned in the notified route. It is also stated that the scheme pertaining to the above seven notified routes are not area schemes. 5. It is also submitted that so far as the second respondent is concerned, it has faced many instances in regard to the stretches of route portions reported both as overlapping stretches with notified routes and vice-versa in various items placed before Regional Transport Authority in the same meeting. The enquiry officers, who are conducting route enquiry on applications for fresh stage carriage permits are often confused between 'notified route portions' and 'present path of KSRTC due to traffic regulation or any other reason'. Improper reports due to non-mentioning of important intermediate points between the places mentioned in the notified routes causes litigations before this Court as well as the State Transport Appellate Tribunal. 6. That apart, it is stated that though the second respondent is not empowered to alter, modify or change the schemes published by the State Government, but clarifying or determining the exact notified route would be essential as the same are jurisdictional facts, without which the second respondent cannot take the proper decision on application submitted before it. It was thereupon that second respondent has clarified/determined the path of notified route published by Government of Kerala in order to have un-desired deviations and mis-interpretation of the scheme published. Therefore, according to the respondents, if Ext. P6 is set aside, the same will lead to uncertainty and the second respondent will not be able to exercise its quasi-judicial power based on the schemes published by the Government. According to the third respondent, when the decision taken in the meeting convened by the second respondent on 13.07.2016 was published, the petitioners threatened with a strike on 07.10.2016 withdrawing buses from the route.
According to the third respondent, when the decision taken in the meeting convened by the second respondent on 13.07.2016 was published, the petitioners threatened with a strike on 07.10.2016 withdrawing buses from the route. Thereupon, in order to avert the strike, the District Collector convened a meeting on 05.10.2016 of all concerned and orally directed the Secretary to freeze the decision taken, as per Ext. P6. A route sketch namely, Ext. R3(a) is produced and submitted that KSRTC is operating service from Palakkad to Kannur, through the route marked as ABC (Via, Town bus stand, Puthiya Palam, Victoria College etc.,). The route clearly travels to the north and thus obviously it should be treated as the path of scheme mentioned in Sl. No. 23. All vehicles coming to Palakkad from Kannur side are to be deviated from Sekharipuram Junction, since the road marked as ABC has no sufficient width to accommodate two way traffic and moreover passengers coming into the town are to be alighted at different places within the town. Due to the aforesaid two reasons, the deviation is incorporated and buses reach KSRTC bus stand touching stadium bus stand and Civil Station area. The portion between stadium bus stand and Civil Station need not be a part of the scheme, shown as ABC in the sketch. The KSRTC stand buses ought to return through the same route, which is the part of the scheme. The portion marked as BDEFG through which KSRTC buses return to the stand is only a part of traffic arrangement made within the city to avoid traffic blocks. 7. The fourth respondent has filed a counter affidavit supporting the stand adopted by the petitioners in the writ petitions and contends that the second respondent is not having jurisdiction or authority to decide the intermediate places and line of travel of the routes mentioned in Ext. P1 notification because the same is issued by the Government under Section 100(3) of the M.V. Act and therefore, the Government is alone having jurisdiction and the authority to fix the line of travel or intermediate places of the notified route. It was under such circumstances, objections were filed before the statutory authority, in the meeting convened for the purpose. 8. Heard learned counsel for the petitioners, learned Government Pleader, learned Standing Counsel appearing for KSRTC and the counsel appearing for intervenors in the writ petition challenging Ext.
It was under such circumstances, objections were filed before the statutory authority, in the meeting convened for the purpose. 8. Heard learned counsel for the petitioners, learned Government Pleader, learned Standing Counsel appearing for KSRTC and the counsel appearing for intervenors in the writ petition challenging Ext. P6 proceedings. 9. On evaluating the fact situations, the exact question to be considered is whether Ext. P6 proceedings of the second respondent will in any manner interfere with Ext. P1 notification issued by the State Government dated 14.07.2009 exercising the power conferred under Section 100 of the M.V. Act, and whether it interferes with the power vested with the State Government under Section 102 of the M.V. Act to cancel or modify a scheme. Section 100(3) of the M.V. Act, read thus:- "100. Objection to the proposal.- xxx (3) The scheme relating to the proposal as approved or modified under sub-section (2) shall then be published in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become final on the date of its publication in the Official Gazette and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route. Provided that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government." Section 102 of the M.V. Act read thus:- "102. Cancellation or modification of scheme.- (1) The State Government may at any time, if it considers necessary, in the public interest so to do, modify any approved scheme after giving- (i) the State transport undertaking; and (ii) any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification.
Cancellation or modification of scheme.- (1) The State Government may at any time, if it considers necessary, in the public interest so to do, modify any approved scheme after giving- (i) the State transport undertaking; and (ii) any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification. (2) The State Government shall publish any modification proposed under sub-section (1) in the Official Gazette and in one of the newspapers in the regional languages circulating in the area in which it is proposed to be covered by such modification, together with the date, not being less than thirty days from such publication in the Official Gazette, and the time and place at which any representation received in this behalf will be heard by the State Government." 10. On evaluation of Section 100(3) of the M.V. Act, what I could gather is that the scheme notified and published in the official gazette by the State Government will become final on the date of its publication in the Official Gazette. True as per Section 102 of the M.V. Act, the Government is vested with powers to cancel or modify the scheme, after giving the State Transport Undertaking and any affected person an opportunity of being heard in respect of the proposed modification, and thereupon consequential action shall be taken in respect of the modified scheme. On a reference to Annexure of Ext. P1 notification in respect of the seven notified routes, so far as concerning Ext. P6 proceedings, it can be gathered that only intermediate points are referred to therein. To cite an example, serial No. 6 is Thrivuvananthapuram-Palakkad route in which the intermediate points shown are Via., Quilon-Alleppey-Ernakulam-Alwaye-Thrissur-Alathur. Therefore, it is clear that as per Annexure, the line of path within the town or Palakkad District is not specifically incorporated therein. Which thus means, the line of path to be traversed is not described in Ext. P1 notification. By giving the important intermediate points, the route is notified, but in order to traverse through the town/city/district the line of path is to be identified. To put it more straight, in order to reach the main Highway, there will be several roads within the town or within the district, therefore unless and until the line of path is clarified innumerable difficulties will be caused.
To put it more straight, in order to reach the main Highway, there will be several roads within the town or within the district, therefore unless and until the line of path is clarified innumerable difficulties will be caused. If the Government intended that the line of path is to be provided also along with the Annexure to Ext. P1 notification it should have definitely incorporated so. However, in order to give life and blood to Ext. P1 notification and the intermediate points referred to in the Annexure to Ext. P1, definitely the line of path is to be identified. Merely because the line of path is identified by the second respondent, it cannot be said that the route contained in Ext. P1 notification is in any manner interfered with by the second respondent, or intruded into powers conferred on the Government under Section 102 of the M.V. Act. Section 102 of the M.V. Act only deals with cancellation or modification of any approved scheme. Merely because the line of path is fixed by the second respondent, it can never be termed as cancellation or modification of Ext. P1 scheme notified by the Government. In this context route defined under the M.V. Act is relevant, which read thus:- " 'route' means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another". So much so it is clear and convincing that merely by identifying path of traverse in the notified route by the statutory authority, it will not in any manner infracts the power conferred on the State Government under Section 102 of the M.V. Act. 11. In my considered opinion, the fixation of line of path for the route to be traversed within the district is not included in Annexure to Ext. P1 with the obvious intention of empowering the concerned statutory authority to finalise the same taking into account the nature and width of the road, density of traffic and other specific issues within the city/town/district. Therefore, in my considered opinion, the second respondent statutory authority has only fixed the line of path so as to avoid any discrepancy in the subject matter, while granting permit to private operators. Furthermore, it can be seen that by fixing exact path of travel in order to augment the need of Ext.
Therefore, in my considered opinion, the second respondent statutory authority has only fixed the line of path so as to avoid any discrepancy in the subject matter, while granting permit to private operators. Furthermore, it can be seen that by fixing exact path of travel in order to augment the need of Ext. P1 will avoid unnecessary intricacies in the subject matter and make the situation more clear and transparent while considering the permit applications by the second respondent. This will also help the statutory functionaries to take decisions in a serene and composed manner with definiteness and clarity, thus eliminating opening up of unnecessary litigations and disputes. In my considered opinion, such a clarification is the need of the hour and the day, and it shall also be scrupulously carried out in all the notified routes. Such actions will also ensure proper and effective utilisation of man power for productive purposes. Moreover unnecessary allegations, complexities, contradictions etc., etc., in the subject issue can be avoided. 12. Taking into account, the aggregate circumstances, reckoning the law and the reasons assigned in Ext. P6, I am persuaded to arrive at a conclusion that there is no illegality, arbitrariness or any other legal infirmity justifying interference of this Court in Ext. P6 proceedings. Therefore, the challenge fails. Accordingly, W.P.(C). Nos. 33075/2016 and 37936/2016 are dismissed. 13. Having found so, as I have already pointed out, W.P.(C). No. 29022/2014, consequent to passage of Ext. P6 order has become redundant and inconsequential and therefore, the same is dismissed as infructuous. Likewise, the other writ petitions in respect of applications filed by the petitioners seeking various reliefs in respect of their stage carriages are concerned, there will be a direction to the appropriate statutory authority to consider and pass orders, at the earliest possible time, and at any rate, within six weeks from the date of receipt of a copy of this judgment, after providing sufficient opportunity to any affected persons and in accordance with law. W.P.(C). Nos. 3255/2017, 9843/2017, 4717/2017 and 19740/2017 are disposed of, accordingly. The petitioners therein are directed to produce a copy of respective writ petition and documents along with a certified copy of the judgment before the respective statutory authority.