Kerala High Court
State Of Kerala vs Ganga Sivakumar on 11 June, 2025
Author: Amit Rawal
Bench: Amit Rawal
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W.A.No.444 of 2014 & con. cases
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
WA NO. 444 OF 2014
AGAINST THE JUDGMENT DATED 07.02.2014 IN WPC NO.28394
OF 2013 OF HIGH COURT OF KERALA
APPELLANT/4TH RESPONDENT IN WPC:
KERALA STATE ROAD TRANSPORT CORPORATION
REPRESENTED BY THE MANAGING DIRECTOR, TRANSPORT
BHAVAN, THIRUVANANTHAPURAM-695 013.
BY ADVS.
SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT
CORPN.
SHRI.P.C.SASIDHARAN
SRI.P.C.CHACKO(PARATHANAM)
RESPONDENT/PETITIONER AND RESPONDENTS 1 TO 3 IN WPC:
1 GANGA SIVAKUMAR
W/O.SIVAKUMAR, ERANPURACKAL HOUSE,
ELANKUNNAPUZHA.P.O., ERNAKULAM DISTRICT.
2 THE GOVERNMENT OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY, MINISTRY OF
TRANSPORT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
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3 THE REGIONAL TRANSPORT AUTHORITY
ERNAKULAM, REPRESENTED BY ITS SECRETARY, ERNAKULAM-
682 030.
4 THE SECRETARY
REGIONAL TRANSPORT AUTHORITY, ERNAKULAM-682 030.
5 ADDL R5:THOMAS
S/O AUGUSTINE, VATTAKAVUNKAL HOUSE, MANKUVA PO,
CHINNAR, PIN-685562. [SECRETARY, PRIVATE BUS
OPERATORS ASSOCIATION, ADIMALI UNIT]
6 ADDL R6: P C RAJAN
PUTHENPURACKAL HOUSE, IIND MILE, PALLIVASAL PO,
IDUKKI, PIN-685565. ADDITIONAL RESPONDENTS 5 AND 6
ARE IMPLEADED AS PER ORDER DTD. 15/1/16 IN IA
1371/15
7 ADDL R7:ASHA GOPINATH
W/O MAHESH CHANDRAN, T.C.27/1882 (26/1064), PULLANI
HOUSE, RISHIMANGALAM, VANCHIYOOR PO,
THIRUVANANTHAPURAM-695035.
8 ADDL R8: L.CHANDRAMATHI AMMA
W/O LATE K.SADHASIVAN NAIR, T.C.28/2290,
ALLAPURATHU VEEDU, OVERBRIDGE, FORT PO,
THIRUVANANTHAPURAM-695023.ADDITIONAL RESPONDENTS R7
AND R8 ARE IMPLEADED AS PER ORDER DATED 8.03.18 IN
IA 307/18
9 M.P.PRASAD
ANOTHER IADDITIONAL RESPONDENTS)
BY ADVS.
SHRI.P.DEEPAK (SR.)
SRI.PIRAPPANCODE V.S.SUDHIR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
11.06.2025, ALONG WITH WA.445/2014, 1039/2014 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
WA NO. 445 OF 2014
AGAINST THE JUDGMENT DATED 07.02.2014 IN WPC NO.22693
OF 2013 OF HIGH COURT OF KERALA
APPELLANT/3RD RESPONDENT:
KERALA STATE ROAD TRANSPORT CORPORATION
TRANSPORT BHAVAN, THIRUVANANTHAPURAM, REPRESENTED
BY ITS MANAGING DIRECTOR, REPRESENTED BY THE
DISTRICT TRANSPORT OFFICER, PALAKKAD 678008
BY ADVS.
SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT
CORPN.
SHRI.P.C.SASIDHARAN
SRI.P.C.CHACKO(PARATHANAM)
RESPONDENT/PETITIONER AND RESPONDENTS 1 AND 2:
1 REMESH KUMAR
S/O PAZHANI SWAMI, 4/382, THEKKAMUKKIYOOR HOUSE,
AGALI P.O, KOTTATHARA, MANNARKAD, PALAKKAD
DISTRICT.
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2 REGIONAL TRANSPORT AUTHORITY
PALAKKAD, 678001
3 THE SECRETARY
REGIONAL TRANSPORT AUTHORITY, PALAKKAD, 678001.
4 THOMAS
S/O AUGUSTINE, VATTAKAVUNKAL HOUSE, MANKUVA PO,
CHINNAR, PIN-685562. [SECRETARY, PRIVATE BUS
OPERATORS ASSOCIATION, ADIMALI UNIT]
5 P C RAJAN
PUTHENPURACKAL HOUSE, IIND MILE, PALLIVASAL PO,
IDUKKI, PIN-685565.
6 ASHA GOPINATH
W/O MAHESH CHANDRAN, T.C.27/1882 (26/1064), PULLANI
HOUSE, RISHIMANGALAM, VANCHIYOOR PO,
THIRUVANANTHAPURAM-695035.
7 L.CHANDRAMATHI AMMA
W/O LATE K.SADHASIVAN NAIR, T.C.28/2290,
ALLAPURATHU VEEDU, OVERBRIDGE, FORT PO,
THIRUVANANTHAPURAM-695023.
BY ADV SRI.PIRAPPANCODE V.S.SUDHIR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
11.06.2025, ALONG WITH WA.444/2014 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
WA NO. 1039 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 07.02.2014 IN WPC
NO.28394 OF 2013 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS:
1 STATE OF KERALA
REP. BY PRINCIPAL SECRETARY, MINISTRY OF TRANSPORT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE REGIONAL TRANSPORT AUTHORITY
ERNAKULAM, REPRESENTED BY SECRETARY, ERNAKULAM-
682030.
3 THE SECRETARY
REGIONAL TRANSPORT AUTHORITY, ERNAKULAM-682030.
BY ADV GOVERNMENT PLEADER
RESPONDENT/S:
1 GANGA SIVAKUMAR
W/O.SIVAKUMAR, ERANPURACKAL HOUSE, ELANKUNNAPUZHA
P.O., ERNAKULAM DISTRICT.
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2 KERALA STATE ROAD TRANSPORT CORPORTATION
REPRESENTED BY THE MANAGING DIRECTOR, TRANSPORT
BHAVAN, THIRUVANANTHAPURAM-695013.
BY ADVS.
SHRI.P.C.SASIDHARAN
SHRI.P.DEEPAK (SR.)
SRI.RILGIN V.GEORGE
SRI.P.C.CHACKO(PARATHANAM)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
11.06.2025, ALONG WITH WA.444/2014 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
WP(C) NO. 29614 OF 2016
PETITIONER/S:
1 MUHAMMED P.P.
PADINJAREPPALLA, PAYYANDAM PO, MANNARKKAD, PALAKKAD
2 K. KUNJIMUHAMMED
KALLIANTHODI HOUSE, MAKKARAPARAMBU PO, MALAPPURAM
DISTRICT
3 LUKMANUL HAKEEM
MADATHIL HOUSE, VELLIYAMCHERY, MALATUR, MALAPPURAM
4 GOPALAKRISHNAN
NILATHUMARIL HOUSE, THENKARA PO, MANNARKAD,
PALAKKAD
5 P. ABDUL MAJEED
PALLOR HOUSE, NARANJAPATTA, PERUMBADARI PO,
MANNARKAD
6 K. ABDUL MAJEED
PALLOR HOUSE, CHANDAPADI, MANNARKAD, PALAKAD
7 MUHAMMED BASHEER
CHERAMPADATH HOUSE, BHEEMNAD.P.O, MANNARKAD
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8 ABDULKHADER
PULIKKAL, P.O. KAKKIDAMKUNNU, ALANALLOOR, MANNARKAD
9 P.K. KUNHUMUHAMMED
PUTHOKOLI HOUSE, KARUVARAKUNDU.P.O., MALAPPURAM
DISTRICT
0 MOHAMMED ISHAK
AMBALAPPARAMBAN HOUSE, KARUVARAKUNDU.P.O,
MALAPPURAM DISTRICT
11 K.P.MOHAMMED
KALLIPARAMBAN HOUSE, PERUMBADARY, MANNARKAD,
PALAKKAD
12 ABDUL RAZAK
KURIKKAL HOUSE, PERUMBADARY, MANNARKAD, PALAKKAD
13 O.D. JOSEPH
OZHAKAL HOUSE, PAYYANADAM, MANNARKAD, PALAKAD
14 ABDUL HAMMED
KUTHIPPUHA, MANNARKA, PALAKAD
15 MAMMI.P
PUTHUPPARAMBIL, KOTTEPPADM. P.O, MANNARKAD
16 T.MOIDUTTY
THATTASSERY VEDU, KANDAMANGALM, MANNARKAD, PALAKKAD
BY ADVS.
SRI.P.V.JAYACHANDRAN
SRI.NIDHI BALACHANDRAN
SRI.E.B.SHIVANANDAN
SHRI.S.SUDHEESHKAR
RESPONDENT/S:
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1 THE REGIONAL TRANSPORT AUTHORITY
REGIONAL TRANSPORT OFFICE, MANNARKAD, PALAKAD,
REPRESENTED BY ITS SECRETARY-678582
2 THE TRANSPORT COMMISSIONER
VAZHUTHACAUD, THIRUVANANTHAPURAM-695002
3 DISTRICT TRANSPORT OFFICER
OFFICE OF THE KERALA STATE TRANSPORET CORPORATION
(K.S.R.T.C) PALAKKAD-678001
BY ADVS.
GOVERNMENT PLEADER
SRI.P.C.CHACKO(PARATHANAM)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.06.2025, ALONG WITH WA.444/2014 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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10
JUDGMENT
[WA Nos.444/2014, 445/2014, 1039/2014, 29614/2016]
Amit Rawal, J.
Three intracourt appeals have been filed -
one by the State of Kerala (W.A.No.1039 of 2014) and
other two by the Kerala State Transport Corporation
(W.A.Nos.444 and 445 of 2014) against the judgment
of the Single Bench dated 07.02.2014 whereby two
writ petitions bearing Nos.28934 of 2013 and 22693
of 2013, with the following prayers, have been
allowed:
(i) Declare that Rule 212 of the Kerala
Motor Vehicles, 1989 to the extent it ousts
the jurisdiction of the transport authority to
prescribe a schedule of timings for stage
carriages belonging to the State Transport
Undertakings is ultra vires the Motor Vehicles
Act,1988.
(ii) Issue a writ in the nature of mandamus
or such other writ order or direction
commanding the 3 rd
respondent to forthwith
convene a timing conference and settle the
time schedule for operation of the service on
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the KSRTC on the route NJARAKKAL-KAKKANAD via
LIGHT HOUSE, more specifically detailed in
Exhibit P3 notice, with notice and opportunity
of being heard to the petitioner and other
affected en route operators.
(iii) Issue a writ in the nature of mandamus
or such other writ order or direction
commanding the 2 nd
respondent to produce the
entire records leading to the grant and issue
of permit to the KSRTC to conduct service on
the route NJARAKKAL-KA.KKANAD via LIGHT HOUSE,
more specifically detailed in Exhibit P3
notice before this Honorable Court."
i) to issue a writ of mandamus or any other
appropriate writ, direction or order under
Article 226 of the Constitution of India
commanding the 2nd respondent to consider
Ext.P5 objection submitted by the petitioner
and revise the timings of the 3rd respondent's
service presently operating on the route Agali-
Palakkad as expeditiously as possible at any
rate within a short period as stipulated by
this Hon'ble Court.
ii) to issue a writ of mandamus or any other
appropriate writ, direction or order commanding
the 3rd respondent to stop operation on the
route Agali-Palakkad if the same is not on the
strength of a valid permit issued by the
competent authority."
W.P(C).No.29614 of 2013 preferred by Muhammed P.P
and others is on the same line as has been allowed
by the learned Single Bench in the aforementioned
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writ petitions.
2. The pith and substance of the grievance
raised by the writ petitioners before the Single
Bench was that all the petitioners were holders of
the stage carriage permits issued under Section 80
of the Motor Vehicles Act, 1988 in a non-scheme
area. Sections 70, 71 and 72 of the Act under
Chapter V prescribe a complete procedure for
submission of the application for stage carriage
permit, procedure of Regional Transport Authority
in considering the application for stage carriage
permit and grant of stage carriage permits. The same
read as under:
"70. Application for stage carriage permit.--(1)
An application for a permit in respect of a
stage carriage (in this Chapter referred to as
a stage carriage permit) or as a reserve stage
carriage shall, as far as may be, contain the
following particulars, namely:--
(a) the route or routes or the area or areas
to which the application relates;
(b) the type and seating capacity of each such
vehicle;
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(c) the minimum and maximum number of daily
trips proposed to be provided and the time-
table of the normal trips.
Explanation.--For the purposes of this section,
section 72, section 80 and section 102, "trip"
means a single journey from one point to
another, and every return journey shall be
deemed to be a separate trip;
(d) the number of vehicles intended to be kept
in reserve to maintain the service and to
provide for special occasions;
(e) the arrangements intended to be made for
the housing, maintenance and repair of the
vehicles, for the comfort and convenience of
passengers and for the storage and safe
custody of luggage;
(f) such other matters as may be prescribed.
(2) An application referred to in sub-section
(1) shall be accompanied by such documents as
may be prescribed.
71. Procedure of Regional Transport Authority
in considering application for stage carriage
permit.--
(1) A Regional Transport Authority shall,
while considering an application for a stage
carriage permit, have regard to the objects of
this Act.
(2) A Regional Transport Authority shall
refuse to grant a stage carriage permit if it
appears from any time-table furnished that the
provisions of this Act relating to the speed
at which vehicles may be driven are likely to
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be contravened: Provided that before such
refusal an opportunity shall be given to the
applicant to amend the timetable so as to
conform to the said provisions.
(3) (a) The State Government shall, if so
directed by the Central Government having
regard to the number of vehicles, road
conditions and other relevant matters, by
notification in the Official Gazette, direct a
State Transport Authority and a Regional
Transport Authority to limit the number of
stage carriages generally or of any specified
type, as may be fixed and specified in the
notification, operating on city routes in
towns with a population of not less than five
lakhs.
(b) Where the number of stage carriages are
fixed under clause (a), the Government of the
State shall reserve in the State certain
percentage of stage carriage permits for the
scheduled castes and the scheduled tribes in
the same ratio as in the case of appointments
made by direct recruitment to public services
in the State.
(c) Where the number of stage carriages are
fixed under clause (a), the Regional Transport
Authority shall reserve such number of permits
for the scheduled castes and the scheduled
tribes as may be fixed by the State Government
under sub-clause (b).
(d) After reserving such number of permits as
is referred to in clause (c), the Regional
Transport Authority shall in considering an
application have regard to the following
matters, namely:-- (i) financial stability of
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the applicant;
(ii) satisfactory performance as a stage
carriage operator including payment of tax if
the applicant is or has been an operator of
stage carriage service; and
(iii) such other matters as may be prescribed
by the State Government:
Provided that, other conditions being equal,
preference shall be given to applications for
permits from--
(i) State transport undertakings;
(ii) co-operative societies registered or
deemed to have been registered under any
enactment for the time being in force;
(iii) ex-servicemen; 2 [or] 2
(iv) any other class or category of persons,
as the State government may, for reasons to be
recorded in writing consider necessary;]
Explanation.--For the purposes of this section
"company" means any body corporate, and
includes a firm or other association of
individuals; and "director", in relation to a
firm, means a partner in the firm.
72. Grant of stage carriage permits.--
(1) Subject to the provisions of section 71, a
Regional Transport Authority may, on an
application made to it under section 70, grant
a stage carriage permit in accordance with the
application or with such modifications as it
deems fit or refuse to grant such a permit:
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Provided that no such permit shall be granted
in respect of any route or area not specified
in the application.
(2) The Regional Transport Authority, if it
decides to grant a stage carriage permit, may
grant the permit for a stage carriage of a
specified description and may, subject to any
rules that may be made under this Act, attach
to the permit any one or more of the following
conditions, namely:--
(i) that the vehicles shall be used only in a
specified area, or on a specified route or
routes;
(ii) that the operation of the stage carriage
shall be commenced with effect from a
specified date;
(iii) the minimum and maximum number of daily
trips to be provided in relation to any route
or area generally or on specified days and
occasions;
(iv) that copies of the time-table of the
stage carriage approved by the Regional
Transport Authority shall be exhibited on the
vehicles and at specified stands and halts on
the route or within the area;
(v) that the stage carriage shall be operated
within such margins of deviation from the
approved time-table as the Regional Transport
Authority may from time to time specify;
(vi) that within municipal limits and such
other areas and places as may be prescribed,
passengers or goods shall not be taken up or
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set down except at specified points;
(vii) the maximum number of passengers and
the maximum weight of luggage that may be
carried on the stage carriage, either
generally or on specified occasions or at
specified times and seasons;
(viii) the weight and nature of passengers'
luggage that shall be carried free of charge,
the total weight of luggage that may be
carried in relation to each passenger, and the
arrangements that shall be made for the
carriage of luggage without causing
inconvenience to passengers;
(ix) the rate of charge that may be levied for
passengers' luggage in excess of the free
allowance;
(x) that vehicles of a specified type fitted
with body conforming to approved
specifications shall be used: Provided that
the attachment of this condition to a permit
shall not prevent the continued use, for a
period of two years from the date of
publication of the approved specifications, of
any vehicle operating on that date
(xi) that specified standards of comfort
and cleanliness shall be maintained in the
vehicles; (xii) the conditions subject to
which goods may be carried in the stage
carriage in addition to or to the exclusion of
passengers;
(xiii) that fares shall be charged in
accordance with the approved fare table;
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(xiv) that a copy of, or extract from, the
fare table approved by the Regional Transport
Authority and particulars of any special fares
or rates of fares so approved for particular
occasions shall be exhibited on the stage
carriage and at specified stands and halts;
(xv) that tickets bearing specified
particulars shall be issued to passengers and
shall show the fares actually charged and that
records of tickets issued shall be kept in a
specified manner;
(xvi) that mails shall be carried on the
vehicle subject to such conditions (including
conditions as to the time in which mails are
to be carried and the charges which may be
levied) as may be specified;
(xvii) the vehicles to be kept as reserve by
the holder of the permit to maintain the
operation and to provide for special
occasions;
(xviii) the conditions subject to which
vehicle may be used as a contract carriage;
(xix) that specified arrangements shall be
made for the housing, maintenance and repair
of vehicle;
(xx) that any specified bus station or shelter
maintained by Government or a local authority
shall be used and that any specified rent or
fee shall be paid for such use;
(xxi) that the conditions of the permit shall
not be departed from, save with the approval
of the Regional Transport Authority;
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(xxii) that the Regional Transport Authority
may, after giving notice of not less than one
month,--
(a) vary the conditions of the permit;
(b) attach to the permit further conditions:
Provided that the conditions specified in
pursuance of clause (i) shall not be varied so
as to alter the distance covered by the
original route by more than 24 kilometers, and
any variation within such limits shall be made
only after the Regional Transport Authority is
satisfied that such variation will serve the
convenience of the public and that it is not
expedient to grant a separate permit in
respect of the original route as so varied or
any part thereof;
(xxiii) that the holder of a permit shall
furnish to the Regional Transport Authority
such periodical returns, statistics and other
information as the State Government may from
time to time prescribe;
(xxiv) any other conditions which may be
prescribed."
3. While deriving the powers under Section
96 of the Central Motor Vehicles Act, the State of
Kerala framed the Kerala Motor Vehicle Rules, 1989.
Rule 212, subject matter of challenge in the writ
petitions, excluded the role of State Transport
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Authority and Regional Transport Authority with
regard to the timings to the State Transport
Undertakings. On perusal of the aforementioned
provisions of the Act, it is evident that a separate
time table has to be issued by the RTA or the STA or
by the Secretary under delegation while issuing the
permits to different private stage carriage holders,
so that there is no overlapping. In other words, the
time granted to two or more stage carriages are not
identical or near identical, depending on the
quality of route, the amount of traffic, density of
passenger traffic and in order to prevent any
unhealthy competition leading to excessive speed
endangering the life of public. It is no doubt that
on routes specified and plied by the private stage
carriages, Kerala State Road Transport Corporation
(KSRTC) established under the Public Transport
Corporation Act (State Transport Undertaking
("STU")) can also come in competition, where the
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route is not falling under the scheme area provided
under Chapter VI of the Motor Vehicles Act. The
procedure for submission of the application for
stage carriage permit, consideration and grant of
the permit to the STU is also similar in Chapter V
of the Central Motor Vehicles Act.
4. No doubt, Rule 212 framed by the State of
Kerala while exercising the power under Section 96
was in existence since 1989, however came to be
applied only in 2013, whereby the formation of two
writ petitions leading to the judgment under
challenge vide Exts.R3(a) to R3(d) and R4(a) to
R4(d) permits were issued to the State Transport
Undertakings on a part of the route already plied by
the private stage carriage operators by having an
overlapping on the time table already issued.
5. Sections of the Central Motor Vehicles Act
extracted supra, provides that it is the prerogative
of the STA or the RTA or the secretary under the
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delegated power, to issue the time table and in case
the time table has to be changed, an opportunity of
hearing has to be considered so that the affected
parties are not taken aback or to prevent the
overlapping. However in the instant case, on perusal
of the stage carriage permits, exhibits referred to
above, though have been issued by the concerned
authorities, ie, the Secretary under the delegated
power to the State Transport undertaking but the
time table has been provided by the District
Transport Officer's approval. It is the said act
which was agitated in the writ petitions, with the
reliefs aforementioned.
6. Learned Single Bench, noticing the rival
contentions of the State as well as the KSRTC, much
less the private operators, in paragraph 47 onwards
till paragraphs 54 held as under:
"47. In the instant case, there is in place a
legislation by the Parliament, being the Act of
1988. The Rules of 1989 framed by the State does
not invoke the legislative power conferred on
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the State under List III; nor is it in exercise
of an executive power conferred under Article
162. The power invoked in framing the Rules is
that granted under Section 96 of the Act. In
invoking such powers, the State has to frame
Rules in accordance with the power conferred and
cannot transgress outside the scope of such
powers and then seek to sustain it as an
executive action or a policy decision.
48. Rule 212, which is challenged herein, has
been framed in accordance with the power
conferred under Section 96 for carrying forward
the purposes of that Chapter and not invoking
any other power. Though monopoly, by way of
nationalization, could be conferred by
legislation and it is done so under Chapter VI;
that cannot be extended to non-notified routes
not covered by a scheme, where control is
exercised by the Transport Authorities under
Chapter V. In applying for permits under Chapter
V, the binding precedents noticed above clearly
indicate that it should be a level playing
field, where the STU, involved in a commercial
enterprise, competes with a private stage
carriage operator on equal footing. As was
noticed earlier, the provision for grant of
permit, the rule relating to the procedure for
application and the form prescribed therein have
to be read together. An STU, while making an
application, has to comply with all the
conditions of the provisions including the form
and attach a time-table along with the
application. It cannot be gainsaid that, the
time-table would serve only the purpose of
effecting rejection only on the speed limits
being violated.
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49. Hence, while making a rule under the
specific power conferred for promoting the
purposes of the Chapter, a statutory mandate
cannot be given a go-by; nor can the power
conferred by the statute, on the Transport
Authorities constituted under the statute, be
usurped by a provision in the Rules framed. It
is to be noticed that nowhere is it mandated
that a time schedule can be settled in the case
of STU by DTO of the STU. Relying on Rule 212,
the procedure followed by the STU cannot even be
said to be an executive action, since the STU
herein is an independent Corporation engaged in
commercial business. The business carried on by
the Corporation is not an extension of the
normal business of the State. There is no power
conferred expressly by the Constitution, by
legislation or even implied; to be exercised by
the Corporation.
50. The subject being covered under List III,
and there being a legislation by the Parliament,
with respect to 'Control of Vehicles', the State
cannot invoke its powers under Article 162 to
provide for an exclusion in the case of STUs.
That is also not the power invoked in framing
Rule 212 and the power invoked is specifically
that conferred under Section 96 of Chapter V of
the Act of 1988. Though the executive power of
the State is co-extensive with its legislative
powers, Article 162 is subject to the other
provisions of the Constitution and cannot be
exercised in contravention of any law.
51. The KSRTC has also an alternative
contention that as per Section 98 of Chapter VI
of the Act; the provisions framed thereunder
have overriding powers and has effect
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notwithstanding anything inconsistent therewith
contained in Chapter V. Such an argument would
be misplaced, especially in the context of the
permits of the STU, assailed in both the writ
petitions, being not in a nationalized route,
which alone would be covered under Chapter VI. A
Constitution Bench of the Supreme Court in Abdul
Gafoor v. State of Mysore [AIR 1961 SC 1556]
considered the effect of Section 68-B of Chapter
IVA of the old Act, on Chapter IV. Adopting the
very same reasoning, the overriding effect given
to the provisions of Chapter VI, provides
negatively that if any question arises as
regards any provisions of Chapter VI, then,
despite it being in conflict with any or some
provisions of Chapter V; would have effect. The
question when it crops up under Chapter VI, has
to be considered on facts and the provisions of
that Chapter has to be applied de hors any
inconsistency or conflict with Chapter V. But
that is not to say that even when an issue
arises under Chapter V, the provisions of
Chapter VI ought to be taken into account, so as
to efface the effect of the provisions of
Chapter V. Such argument would be "fallacious"
as noticed by the Hon'ble Supreme Court.
52. The contention of the KSRTC that after the
Act of 1988, none could object to a permit is
also not relevant, since the challenge in both
writ petitions is not against the grant of
permit, but the non-settlement of timings with
respect to the permits. Definitely without
settlement of timings by the appropriate
authority, no operator, including an STU, could
operate under the provisions of Chapter V. It
has to be reiterated that in the instant case we
are not concerned with Chapter VI at all or a
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scheme notified under the provisions of that
Chapter or such route.
53. The settlement of timings by the DTO of the
STU is neither conferred by the Act nor can be
delegated. Going by the procedure followed at
present and assailed herein; on a granted
permit, the DTO could change the timings at any
time, which need not even be published , thus
edging out the private operators who were
operating on a valid permit with settled timings
in a route. While the private operator, for
revision of timings, has to approach the
Secretary of the RTA, the DTO of the STU could,
at his will and caprice, change the timings of
the stage carriages operated by the STU. Such a
discrimination is not contemplated under Chapter
V and would violate Article 14 of the
Constitution of India. Whenever the provisions
of the Chapter relating to "Control of Transport
Vehicles", whether it be in the old Act or in
the new Act, came up for consideration before
the Constitutional Courts, the same was held to
be distinct from the power to bring out a scheme
of nationalization.
54. The conclusions emanating from the
discussion above as also the findings rendered
are as follows: The application for grant of a
permit has to contain the particulars provided
under Chapter V, more specifically Sections 71
and 72 read with Rule 143 and the form
prescribed, being "P.St.S.A." even in the case
of an STU. Hence, a time-table necessarily has
to accompany the application, which the RTA
considers only for the purpose of ensuring the
speed limits being maintained; but the delegated
authority, being the Secretary, is enjoined upon
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to consider; for settlement of timings after a
public notice and after hearing the objections
of rival operators; which has been judicially
recognized as furthering public interest. The
provisions under Chapter V and VI are quite
distinctive. But for a preference to the STU,
that too on all other conditions being equal;
there is no reservation, monopoly or exemption,
under Chapter V granted to the STU. Chapter V
postulates a level playing field, when permits
are applied for by the STU, as also any other
private operator; being a citizen or a body
corporate. The RTA has been conferred with the
power to settle the timings also, which is
possible of delegation to the Secretary. But the
exemption granted under Rule 212, being a rule
promulgated to further the provisions of Chapter
V, cannot confer the STU with a benefit which
does not flow from the provisions of the
Chapter. The exclusion provided under Rule 212
to the STUs, in respect of settlement of
timings, does not have legislative sanction and
cannot be sustained under Article 162 of the
Constitution of India. The RTA's authority to
settle the timings, and properly delegated to
the Secretary, cannot be arrogated by the STU to
itself on the strength of the exclusion
provided. The exclusion provided in Rule 212 in
so far as excluding the STUs from settlement of
timings, is ultra vires. The Rule has, hence, to
be read down and any settlement of timings, even
for a STU, for a permit under Chapter V has to
be found to be validly settled, only by the
authority conferred with such power under the
statute or the one delegated with such powers.
The operation of the stage carriage vehicles by
the KSRTC on the basis of the settlement of
timings now made by its DTO is illegal. However,
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in public interest, the KSRTC is permitted to
ply the vehicles in the routes in which the
petitioners are operating for a further period
of three months, within which, the timings will
have to be settled as statutorily prescribed,
after hearing the objections of the affected
parties."
7. On perusal of the aforementioned
findings, it is found that the Rule of 1989 framed
by the State did not invoke the legislative power
conferred by the State List-III nor was in exercise
of the executive power conferred under Article 162
of the Constitution of India. It is also noticed
that while making a rule under a specific power for
promoting the purpose of the Chapter, a statutory
mandate cannot be given a go-by; nor the power
conferred by the statute on the Transport
Authorities constituted under the statute, be
usurped by incorporating a provision in the Rules.
8. Rule 212 challenged in the writ petitions,
for the sake of brevity is extracted hereinbelow:
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"212. Schedule of timings:- (1) The State or
Regional Transport Authority may from time to
time - (a) by a general order prescribe a
schedule of timings for stage carriages other
than those belonging to State Transport
Undertakings running on specified routes, or
(b) by a special order prescribe a schedule
of timings for each stage carriage other than
that belonging to State Transport
Undertaking.
(2) The changes ordered by the Transport
Authority in the timings of a service shall
not be considered as variation of permit
under sub-section (3) of section 80 of the
Act.
(3) The State Transport Authority or the
Regional Transport Authority may, by
resolution, delegate to its Secretary the
powers conferred on it under this rule
subject to any conditions that it may
prescribe:
Provided that the State or Regional Transport
Authority shall not however vary the timings
of a service without giving to the interested
permit holders an opportunity to represent
their case"
9. On perusal of the aforementioned Rule
212 of the Kerala Motor Vehicle Rules, 1989, it is
evident that unbridled powers have been given to
other authorities with regard to the State Transport
undertakings running on a specified route as well as
for timings of the State Transport Undertaking. No
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doubt, proviso to sub rule (3) thereof envisages
that the State or Regional Transport Authority shall
not however vary the timings of a service without
giving the interested permit holders an opportunity
to represent their case.
10. By applying Rule 212 on the request received
by the KSRTC, the powers to issue the permit and
time table has to be strictly as per Chapter V and
cannot be delegated in deviation to the provisions
provided under Chapter V to other authorities as
mentioned in the rule under challenge. Not only
this, even by entertaining the application, though
the permits were issued to the State Transport
Undertaking by the competent authority ie, the
secretary under delegation, but the time table
approved by the DTO was attached with the permit and
there is no compliance of the proviso to sub rule 3
of Rule 212. Considering the exercising of the
uncontrolled and contumacious powers of the State,
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the aforementioned rule at the behest of the
respondents-writ petitioners was challenged and has
been struck down to be ultra vires. A fainted
attempt has been made during the course of
intracourt appeals by citing the judgment of the
Supreme Court in D.R.Venkatachalam v. Dy. Transport
Commissioner and another [AIR 1977 SC 842], wherein
under the erstwhile provisions of the Motor Vehicle
Act, Section 47 thereof, gave the preference to the
State Transport Undertakings or Co-operative
Societies registered or deemed to have been
registered under any Act/enactment for issuance of
stage carriage permit and on challenge by the
private stage carriage owners, was upheld. On
similar lines, in the judgment in Indian Drugs and
Pharm Ltd and Others etc v. Punjab Drugs
Manufactuers Association and Others [AIR 1999 SC
1626] by pressing into force the violation of
fundamental rights as enshrined under Article 19(1)
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(g), 19(b), 162, 14 of the Constitution of India,
the Government policy directing the Government
departments to purchase certain drugs from public
sector undertakings was assailed to be a
monopolistic act but was not accepted in the cited
judgment, as it was found to be in exercise of the
executive power of State under Article 162 of the
Constitution of India. Article 162 of the
Constitution of India empowers the State Government
by executive order, to deal with matters with
respect to which the legislate state has power to
make laws with a proviso. The same reads as under:
"162. Extent of executive power of State:
Subject to the provisions of this
Constitution, the executive power of a State
shall extend to the matters with respect to
which the Legislature of the State has power
to make laws:
Provided that in any matter with respect to
which the Legislature of a State and
Parliament have power to make laws, the
executive power of the State shall be subject
to, and limited by, the executive power
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expressly conferred by the Constitution or by
any law made by Parliament upon the Union or
authorities thereof.
11. On perusal of the provisions of Rule
212, it is evident that the competent authority
defined under the Central Act has been deviated by
non-exercise of specific powers attempted to be
derived from Section 96 of the Central Act excluding
the applicability of the Central Act to the State
Transport undertaking, which, in our prima facie
view, is a violation of Article 19 being
discriminatory and 19(1)(g) for the following
reasons:
1. Though the permits have been issued by the
Secretary, but the time table provided by the
DTO has been issued to the STUs. There is no
provision in the Central Act for preparation of
the time table and submission of the same by DTO
to the secretary or STU or RTO.
2.The rule making power was not exercised under
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Article 162 as it was not in public interest.
3. A discrimination has been caused among the same
class viz-a-viz private stage carriage operators
as well as STU in a non-scheme area.
4.The State Transport Undertaking plying on a
notified route by promulgation of the scheme may
be ordered to encroach upon the routes in a non-
scheme area. Unbridled and unfettered powers
have been given to the authorities than the one
prescribed under the Act.
12. We would be failing in our duty in not
extracting the definition of 'stage carriage',
'transport vehicle' and 'public service transport'
as provided in the Act. The same read as under:
2(40)- "stage carriage" means a motor vehicle
constructed or adapted to carry more than six
passengers excluding the driver for hire or
reward at separate fares paid by or for
individual passengers, either for the whole
journey or for stages of the journey;
2(47) transport vehicle means a public service
vehicle, a goods carriage, an educational
institution bus or a private service vehicle;
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2(35) public service vehicle means any motor
vehicle used or adapted to be used for the
carriage of passengers for hire or reward, and
includes a maxicab, a motorcab, contract
carriage, and stage carriage;
13. On perusal of the definition of transport
vehicle, it means a goods carriage and a public
service vehicle whereas a public transport also
deals with the vehicle carrying on the passengers.
However, if at all the public transport service
contain the elements of carrying the passengers,
legislature would not have defined the stage
carriage as it meant to carry more than 6
passengers. In all the cases of stage carriage
permits, more than six passengers are being carried
in a transport vehicle plied by the private
operators as well as by the State transport
undertakings. Thus we cannot shut our eyes to the
definition of stage carriage permit. However, Rule
212 is totally contrary to the definition of stage
carriage permit as it is providing an absolute
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control to the authorities which are not statutorily
defined under the central statute to control, manage
and operate though attempted to be in a regulated
manner, the STUs. The ratio of the aforementioned
judgments relied upon by the appellant pertains to
the facts and circumstance of the case, but not as
referred to by us in the preceding part of the
judgment as well as noted by the Single Bench while
allowing the writ petition.
As an upshot of our findings, We do not find
any illegality and perversity in the judgment of the
Single Bench. Writ petitions are dismissed upholding
the judgment under challenge. W.P(C) No.29614 of
2016 is allowed in the same terms as Single Bench
allowed the writ petitions by, holding Rule 212 to
be ultra vires.
Sd/-
AMIT RAWAL, JUDGE
sd/-
P. V. BALAKRISHNAN, JUDGE
scl
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APPENDIX OF WP(C) 29614/2016
PETITIONER EXHIBITS
P1 TRUE COPY OF THE COMPLAINT DATED 8/8/2016
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W.A.No.444 of 2014 & con. cases
PETITIONER ANNEXURES
Annexure I TRUE COPY OF NOTIFICATION NO.GO(P) NO.
15/2023/TRAN DATED.23.06.2023 ISSUED BY
THE GOVERNMENT OF KERALA.
Annexure II TRUE COPY OF THE LIST OF DEPOTS, SUB
DEPOTS AND OPERATING CENTRES OWNED BY
KERALA STATE ROAD TRANSPORT CORPORATION
IS PRODUCED HEREWITH AND MARKED AS
ANNEXURE-II.
