Kerala High Court
Kasaragode District Bus Owners ... vs The State Of Kerala And Ors. on 6 August, 1990
Equivalent citations: AIR1991KER139, ILR(KER) 1991 (2)KER601, AIR 1991 KERALA 139, (1990) 2 KER LT 830, (1990) 2 KER LJ 845
JUDGMENT
1. O.P. 5003/1990 is filed by Kasaragod District Bus Owners Association represented by its Secretary, M. Balakrishnan Nambiar and O.P. 5561 is filed by individual operator. Both the original petitions challenge the nationalisation of 5 routes mentioned in the draft scheme lying between Kasaragod and Kanhangad. Since the challenge is against one and the same notification, I refer exhibits with respect to O.P. 5003/1990. As the Government of Kerala was of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated passenger road transport service, it was necessary in the public interest that the passenger road transport services mentioned in the 5 routes should be run and operated by the State Transport Undertaking, viz. the third respondent, the first respondent published a scheme in Kerala Gazette dated 18-1-1990. The scheme provided that the 5 routes detailed in annexure to Ext. P-2 will be operated by State Transport Undertaking in the manner provided therein. It is also provided that the transport authorities shall not grant any permit or vary and existing permit to operate any moffussil or town services affecting any of the routes in relation to any portion between Kasaragod and Kalnadu Junction. Inter State services operating on the strength of agreements entered into between Kerala and neighbouring States will not be affected by the scheme. The other services viz. existing service was allowed to operate only on the portion between Kalnadu Junction and Kanhangad. The maximum and minimum number and details of the vehicles etc. are provided. The scheme stated that the latest type of buses will be provided to give maximum comfort to the passengers. The buses will be equipped with rubber cushioned seats and wide gangway. The schedule mentioned that about 20% of the scheduled number of buses calculated on the total number of fleet operating in the moffussil routes shall be kept in reserve. It is stated that service will be introduced only after routes concerned are declared for vehicle traffic by the authorities concerned. The draft of the scheme is also published in Desabhimani daily dated 7-2-1990. The notification provides that any person affected by the scheme may file his objection addressed to the Secretary to Government of Kerala, Public Works and Transport (M) Department, Tri-vandrum within 30 days from the date of publication of the scheme in the manner specified under the Motor Vehicles Act. Section 100 read with Rule 237 of the Kerala Motor Vehicles Rules stipulates the manner of filing objections and the details to be given in the objection. The petitioner in O.P. 5003 /1990 filed objection and'the other petitioner in O.P. 5561/1990 did not file any objection. The petitioner's objection in O.P. 5003/1990 is Ext. P-4. Ext. P-4 objection is not seen in, the proper form mentioned in Rule 237. Ext. P-4 raised three objections. The first of the objections is to effect that there are many private operators operating up to Chemnad Ferry and if the route from Kasara-god to Kanhangad through the bridge over Chandraigiri is nationalised, it will not become profitable for the private operators to conduct the service. Therefore they will be forced to cancel the service itself. In that view of the matter the travelling public will be inconvenienced. The second objection is that on the commissioning of the bridge over Chandragiri river, the distance from Kanhangad to Kasaragod will be considerably reduced and therefore people will travel only by the stage carriage passing through the Chandragiri bridge. If the service of the private operators also is allowed it will be advantageous to the travelling public. Lastly it is stated that the nationalisation will result in the decline of the private bus service in the route. Hence it is prayed that the nationalisation proposal itself be dropped. The objections were heard by the Transport Minister on 9-4-1990. At the meeting the petitioner says that he has submitted Ext. P-7 representation as well. Thereafter the State Government heard the objectors on their objections and the representatives of the State Transport Undertaking. The Government considering the entire aspect came to the conclusion that the scheme should be implemented and therefore in exercise of power under Section 100, Sub-section (2) of the Motor Vehicles Act, 1988 the scheme was approved in toto. Ext. P-8 is the approved scheme. The petitioners challenge Ext. P-2 draft scheme as well as Ext. P-8 approved scheme. After the scheme was approved notice was given to the operators for curtailment of the route as required under Section 103 read with Rule 242. It is in the above circumstances the petitioner approached this Court for quashing the said notification relating to the approved scheme.
2. The contentions raised on behalf of the petitioner is that the scheme as proposed has been approved in toto and that shows there is no application of the mind of the authority at all. It is also submitted that with respect to routes Nos. 2 and 5, the said routes have not come into existence at the time when the draft scheme is published and therefore the scheme proposed to the extent it related to a non-existing route is illegal or without authority of law. Further it is also submitted that there is no material at all before the authority to come to the conclusion that the scheme is essential for providing an efficient, adequate, economical and properly co-ordinated passenger road transport services. Hence the scheme is illegal and arbitrary. It is also submitted that the grievance of the public has not been taken into account at all in considering the draft scheme. The further argument is that the scheme itself has been framed at the instance of the employees of Kerala State Road Transport Corporation and therefore the necessary satisfaction on the part of the Government was not in existence which according to the petitioner is a condition precedent for the validity of the scheme.
3. A counter-affidavit has been filed on behalf of the Government in which it is stated that as per Section 99 of the M. V. Act, 1988 the State Government was of the opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated . road transport service, it is necessary in public interest that the passenger road transport services should be run by the State Transport Undertaking. The Government was of the opinion that in public ipterest it is necessary that the services through Chandragiri Bridge should be operated by the State Transport Undertaking. It is to be stated that there was no service operated by any of the private operators through Chandragiri bridge and the service through Chandragiri bridge was operated only after the scheme. Further it is stated that the scheme is intended for the benefit of the public and it is not for the benefit of the employees of K.S.R.T.C. After the approved scheme the R. T. A. granted regular permit as per rules and the K.S.R.T.C. is operating their services in the routes. It is also stated that the K.S.R.T.C. is a public sector undertaking and public utility is also to be considered in the operation of services by K.S.R.T.C. It is in public interest to nationalise the roads and the Government have followed all the statutory formalities in implementing the scheme. The statement that as a result of the nationalisation, the passenger road transport services in Kerala had been proved to cause great hardship to the travelling public is denied. It is stated in paragraph 9 of the counter-affidavit that the scheme of nationalisation was mooted by the K.S. R.T.C. But there is no mala fide in the issue of the notification. The entire nationalised route has not been in complete exclusion of the private operators only the sector between Kalnadu and Kasaragod has been exclusively reserved for operation by the State Transport Undertaking.
4. The third respondent, K.S.R.T.C., is also filed a counter-affidavit in which it is pointed out that the scheme has been finalised by Government after complying with all the formalities mentioned in Sections 99 and 100 of Act and after hearing all the complaints legally filed before the Government. It is also pointed out that the petitioners have no legal right to claim extension of their services to Kasaragod through newly opened bridge. It is stated that the K.S.R.T.C. was an instrumentality of the State of Kerala to provide efficient, adequate, economical and properly co-ordinated road transport service for the interest of the public. Even at the risk of incurring heavy losses the Stat Transport Undertaking is operating passenger road transport services taking into account the benefit of the travelling public as a whole. The K.S.R.T.C. is bound to carry out the social obligations of the Government with respect to the passenger road transport service which include concessions granted to handicapped, blind etc. and providing facilities to the travelling public. The nationalisation according to the K.S.R.T.C. was also in the interest of the public. According to the K.S.R.T.C. the aspiration of the petitioners is to derive more profit by operating their services through the new routes after curtailing the portion of existing routes and thus denying travelling facility of the passengers in the existing route. The petitioners also have a case that the Kerala Gazette is not available in that area and the paper in which the scheme was published was not read by all members of the association.
5. The petitioner in O.P. 5561/ 1990 has specifically taken the Ground (G) that the petitioners could not file objections against Ext. P-2 notification because the Gazette was not available in Kasaragod in time. For this purpose he produced Ext. P-3 paper report in the Mathrubhumi daily dated 8-3-1990 wherein it is stated that normally the gazette will reach Kasaragod only after a month of its publication.
6. The scheme is prepared and published as laid down in Section 99. It is for the purpose of providing an efficient adequate, economical and properly co-ordinated passenger road transport service. The proposal regarding the scheme giving particulars of the nature of the service to be rendered, the area or route proposed to be covered and other relevant particulars was published in the official gazetteer and also in Desabhimani. Desabhimani is a newspaper in the regional language circulating in the area proposed to be covered by such a scheme. The scheme proposed to be covered from Kanhangad to Kasaragod and Desabhimani is certainly a newspaper in the regional language circulating in that area. The fact that the proposal has been accepted in toto is not a ground to say that the person who is required to exercise the power of examining the proposal has not considered or failed to carry out the function vested in the Act. In the decision in T. G. Mudaliarv. State ofT. N. the Supreme Court observed: , "The mere fact that the schemes were approved without any modification cannot establish that the Secretary. Home, who exercised the functions of the State Government under Section 68-D had failed to carry out his functions as laid down in Section 68-D or that he had approved the schemes without any modification merely because the Government orders contained language of mandatory nature."
7. When the scheme is published in the manner provided under Section 99, the petitioners and other operators are required under the law to file objection in the manner provided, within 30 days from the date of its publication in the official gazette. Rule 237 of the Kerala Motor Vehicles Rules provides for the manner of filing objections. Any person affected by the scheme published under Section 99 of the Act may within 30 days from the date of publication of the scheme in the official gazette file his objections thereto before the Secretary to Government, Public Works and Transport Department, Secretariat, Trivandrum. The objector should furnish the particulars provided in Rule 237 containing the name and address of the objector, memorandum setting forth concisely the grounds of objection, signed by the objector or his authorised agent indicating the area or route included in the scheme notified by the State Government and the route with termini and intermediate stations for which the operator holds the permit; the route length in kilometre extent of overlapping on the route, number of single trips operated in a day, the timing of services operated, registration number of vehicles operated etc. Rule 237 is a salutary provision so that the authority can advert to a grievance of the objector in this regard. The objector has to show in what respect the scheme is wanting. He has to explain what manner the consideration has not been given and whether the scheme failed to provide for efficient, adequate, economical and properly co-ordinated passenger road transport services. For considering all these aspects the objection in the prescribed manner is required. The objector has to point out that the scheme is not calculated for providing a Road Transport Service which can be considered efficient, adequate, economical and properly co-ordinated road transport service. Non-compliance to the manner of providing objection itself will be a ground for dismissing the writ petition. The statutory objection filed by the petitioner in O.P. 5003/1990 is Ext. P-4 and in the other original petition no objection has been filed by the petitioner.
8. Ext. P-4 does not contain the details required under Rules 236 and 237, the objection has not detailed to the road transport service cannot be considered efficient, adequate, economical or properly co-ordinated road transport services. It also does not provide how it is harmful the existing operator. Therefore non-compliance to the rule itself a ground for dismissing the objection.
Section 99 requires two things to be given in the scheme that is the nature of the service proposed to be rendered and the area of the route proposed to be covered so long as the scheme gives these things which the section itself prescribes there will be a prima facie compliance for the purpose of validity of the scheme. This section does not direct the disclosure of the material which assisted for the formation of the opinion. This is the effect of the decision reported in M. G. Sadananda v. State, AIR 1969 Mysore 319, was held that at p. 326 of AIR 1969 Mys:
"It is well settled that a proceeding under Section 68-C has close resemblance to a judicial proceeding, and that, if any of the parties to that proceeding wishes to produce evidence in support of his or its case, that opportunity could not be refused. In C.M.P. Co-operative Societies, Bhopal v. State of Madhya Pradesh, AIR 1967 SC 1815, in which the scope of an enquiry under that section was explained, there was a discussion of the manner in which a proceeding under Section 68-C can validly originate, and, elucidation made in that part of the judgment is that if the scheme prepared by the State Transport Undertaking furnishes the information to which Section 68-C refers, there is a proceeding which validly originates under that Section. It was explained that since Section 68-C requires that the nature of the services proposed to be rendered and the area or the routes proposed to be covered by the State Transporting Undertaking should be specified, and that the scheme should also enumerate the other particulars which are prescribed by the rules made under Section 68-1 the scheme prepared by the State Transport Undertaking would be above criticism if those particulars are set out in the proposals made."
The petitioner contends with respect to routes 2 and 5 that the routes were not in existence. It is not requirement in law that the route in respect of which a draft scheme for nationalisation is proposed must be an existing route prior to the publication of the draft scheme. A similar contention has been raised in the decision reported in Abdul Aziz v. State, AIR 1977 Rajasthan 226. That decision refers to an appeal filed to the Supreme Court against the decision taking the same view and as that appeal has been dismissed the matter now appears to be concluded. In my opinion whether the route is not in existence at the time when the draft scheme is published or on the date of approval, will not make any difference where the route is nationalised on commissioning the route is it will be operated as nationalised route. In this connection it has to be stated that the distinction between the route as a notional line and a route as the physical track disappears in the working of nationalisation under Chapter VI of the Motor Vehicles Act, 1988. In Standard Motor v. Kerala State, AIR 1969 SC 273, the Supreme Court observed at Page 275, AIR 1969 SC:
"For the purpose of Chapters IV and IVA there is no practical distinction between the route or the notional line from one terminus to another for which the permit is granted and the road over which the transport services are run and operated."
9. Absence of knowledge of the draft publication by particular operator is also immaterial. What is required under the Act is to publish the scheme of nationalisation in the Official Gazette as well as in a newspaper in the regional language circulating in that area or the route proposed to be covered. There is no requirement that individual notice should be given. Therefore the knowledge of any particular person or operator is immaterial. The requirement is only publication in the manner mentioned in the gazette and in the daily having circulation in the area covered by route proposed to be nationalised. Therefore the absence of knowledge of the publication in the official gazette by any particular operator is immaterial. This question strictly will not apply in these cases as the petitioner in O.P. 5003/1990 in fact filed objection and the other petitioner is an operator who is also a member of the association cannot disclaim knowledge of the publication of the scheme. The purpose of nationalisation is to bring into being an efficient, adequate and economical and properly co-ordinated passenger road transport service between two termini. Any inconvenience caused to the passengers performing a journey between the other points and the distance cannot afford a ground for challenging the scheme as invalid. It is a duty of the State Undertaking to arrange its service on the nationalised route that those through passengers are subjected to the least inconvenience. The arguments of inconvenience to the public because of the natioanlisation is not a ground for invalidation. This has been so held in the decision reported in Vishwanath Rao v. State, AIR 1968 Mysore 104 and I am in respectful agreement of the same. If there is no co-ordinated service or if there are difficulties to the public because of the uncoordinated service it can be remedied by subsequent modifications as provided in Section 103 or by proper time schedule. The first petitioner's objection has been considered and the second petitioner did not file any objection. The duty is only to consider the objection in the manner mentioned in the rule. If the petitioner did not raise the objection in the manner provided he cannot raise objection subsequently before this Court for invalidating the scheme. The 5 routes in this case run from Kanhangad to Kasaragod. The total exclusion is only from Kalnadu Junction to Kasaragod and that too only over the bridge of Chandragiri. There was no existing route or permit over Chandragiri bridge as the bridge itself was newly commissioned. The operators can still go to K'asara-god through Kalnadu Jn, Chattanchal etc. The existing operators have no right to get extension of their permit in a way to operate through the newly commissioned Chandragiri bridge.
I do not find any merit in these writ petitions. The Original Petitions are dismissed.