Kerala High Court
B.O.Davis vs B.T.Martin on 16 July, 2013
Author: K.M. Joseph
Bench: K.M.Joseph
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935
WA.No. 1627 of 2013 () IN WP(C).5819/2008
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(AGAINST THE ORDER/JUDGMENT IN WP(C) 5819/2008 of HIGH COURT OF
KERALA DATED 16-07-2013)
APPELLANT(S):
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1. B.O.DAVIS,
S/O.OUSEPH, BHARANIKULANGARA HOUSE, KODUSSERY,
VATTAPARAMBU, ERNAKULAM DISTRICT.
2. SHAJIN,
S/O.JOY, CHILANGARA HOUSE, N.KUTHIATHODE P.O.
NORTH PARUR.
BY ADV. SRI.M.JITHESH MENON
RESPONDENT(S)/WRIT PETITIONERS 1 & 2 & RESPONDENTS:
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1. B.T.MARTIN,
BALIAPADATH HOUSE, ALUVA.681101
2. MAYA MARTIN,
BALIAPADATH HOUSE, ALUVA.681101
3. THE STATE TRANSPORT APPELLATE TRIBUNAL,
ERNAKULAM.682030
4. THE REGIONAL TRANSPORT AUTHORITY,
ERNAKULAM, REPRESENTED BY ITS SECRETARY,
ERNAKULAM,682030
5. THE SECRETARY,
REGIONAL TRANSPORT AUTHORITY,
ERNAKULAM,682030
6. THE KERALA STATE ROAD TRANSPORT CORPORATION,
REPRESENTED BY A.T.O., NORTH PARUR681102
7. P.K.VARGHESE,
S/O.KURIAKOSE, DISTRICT SECRETARY,
KERALA STATE ROAD TRANSPORT EMPLOYEES ASSOCIATION (KSRTEA)
(CITU),K.S.R.T.C. DEPOT, ALUVA.
R6 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT
CORPN.
R1 & R2 BY SRI.P.DEEPAK
R3,R4,R5 BY GOVERNMENT PLEADER SRI.SYAMKUMAR.
R7 BY SRI.K.P.JUSTINE (KARIPAT)
BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. NO.1627/2013
APPENDIX
ANNEXURE I: TRUE COPY OF THE TRIP SHEET ISSUED BY THE DISTRICT
TRANSPORT OFFICER, NORTH PARAVUR DATED 24/10/2013.
ANNEXURE 2.: TRUE COPY OF THE ORDER DATED 23/12/2010 ISSUED BY THE
5TH RESPONDENT.
ANNEXURE 3: TRUE COPY OF THE ORDER DATED 6/12/2011 ISSUED BY THE 4TH
RESPONDENT.
ANNEXURE 4: TRUE COPY OF THE ORDER DATED 11/10/2012 OF THE 5TH
RESPONDENT.
/TRUE COPY/ P.S. TO JUDGE.
CR
K. M. JOSEPH & K. ABRAHAM MATHEW , JJ
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W.A.No. 1627 OF 2013
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Dated this the 4th day of March 2014
J U D G M E N T
K.M. Joseph, J The appellants filed this appeal on the basis of leave granted by the Court. As stage carriage operators, they are operating on the route. Permits were granted in the name of the writ petitioners. On joint applications under Section 82 of the Motor Vehicles Act 1988(hereinafter referred to as the Act for short), the permits were transferred by the writ petitioners to the appellants during the pendency of the writ petition. The writ petitioners in W.P.(C) No.5819/2008, from which the appeal arises, filed the writ petition challenging Ext.P9 which is a common judgment of the State Transport Appellate Tribunal allowing the revision petitions filed by the KSRTC and cancelling the permits issued to the writ petitioners. The Tribunal found that the permits granted to the writ petitioners violated the Aluva - Vadakkumpuram, a complete exclusion scheme, as the proposed route overlaps the route under the W.A. No.1627/2013 2 complete exclusion scheme. The learned Single Judge had dismissed the writ petition and took the following view;
"3. W.P.(C) No. 5819/2008 is also filed challenging Ext.P9 order of the STAT in M.V.A.R.P. No. 527 and 528 of 2007 filed by KSRTC challenging the grant of regular permit to the private operators on the ground that it violates the notified route between North Parur -
Aluva(via) Vedimara, Thekkethazham Engineering College, Manakkappady, Parappilly Kavu temple, Millupady, Kottappuram, U.C. College, East Kadungallur and Thottekkattukara. According to KSRTC the route overlaps Aluva - Vadakkumpuram where there is a complete exclusion as per the Government order dated 17/10/1965. The STATE formed an opinion that as per Aluva - Vhadakkumbhagam scheme is concerned there is a complete exclusion which does not permit overlapping of any portion of the notified route and therefore grant of permit in the case was illegal and directed it to be cancelled and the impugned permit is recalled. In this case also there was an interim stay operation of the judgment. The period of the regular permit expired on 15/10/2012. Therefore, the decision in this case is also academic. "
The complaint of the appellants is that the learned Single Judge has not examined the merits of the matter and dismissed the writ petition on the said basis.
2. We heard the learned counsel for the appellants Sri.P. Deepak, the learned counsel Sri.P.C.Chacko on behalf of the KSRTC and Sri.C.R.Syamkumar learned Government Pleader.
3. Sri.Deepak would make essentially two submissions. W.A. No.1627/2013 3 It is firstly contended that the Aluva - Vadakkumpuram scheme is not a complete exclusion scheme. The next contention is that if it is found that it is a complete exclusion scheme, the said scheme is no longer good law by virtue of the principle of desuetude.
4. In regard to the first contention, it is pointed out that there was an earlier scheme in the year 1961, which is produced as Ext.P4. The said scheme was notified under the provisions of the Section 68C of the Motor Vehicles Act 1939, wherein it is provided inter alia as against the question of routes in relation to which the scheme is proposed-----------.
"Routes as indicated in Annexure A and all routes connecting or passing in two or more intermediate places of such routes."
In Annexure A of the said scheme, as against the first route, which is Ernakulam - Muvattupuzha, the intermediate places are noted as Tripunithura, Thiruvankulam, Puthencruz, Valagom. The second route is Ernakulam - Thiruvankulam. The intermediate places are shown as in the case of Ernakulam - Muvattupuzha, route upto Thiruvankulam. The next route is Ernakulam - Tripunithura. The intermediate places are shown as the same as in regard to Ernakulam Muvattupuza up to Tripunithura. There is also item No.6 W.A. No.1627/2013 4 which is Aluva- Parur route. Therein the intermediate places are shown as UC College, Thattampady, Mannam, Parur. Aluva - Chendamangalm route is item No. 7, wherein intermediate places are the same. It is thereafter, in 1965 that is on 17/6/1965 the Aluva - Vadakkumpuram scheme was notified. As against the querry relating to the route in Schedule I, it is stated that Aluva - Vadakkupuram via Parvur - Nalvazhi. It is on the basis of the said two schemes the learned counsel for the appellants would contend that what is prohibited under Aluva - Vadakkumpuram scheme is only granting of permit for operating on the very same route i.e. Aluva - Vadakkumpuram. If the permit granted did not overlap all the portions of the Aluyva- Vadakkumpuram route, there would be no violation of the allegedly complete exclusion scheme. In this regard, he would point out that there were number of operators who were operating in terms of 1961 Scheme. Aluva - Paravur is one of the routes referred to in Ext.P4 scheme. In the said route, as already noted, private operators can operate, but with the only condition that their operation shall not pass through any two or more intermediate places which have already been noted. It is on the said basis permits were being granted. Large number of W.A. No.1627/2013 5 permits have been granted and operators are still plying on the said understanding of law. He would point out that on perusal of the routes in the scheme, it is understood that in Ext.P4 scheme, some of which we have adverted to viz. Ernakulam - Muvattupuzha, Ernakulam- Thiruvankulm, Ernakulam - Tripunithura, it would show for instance that Ernakulam - Thiruvankulam is a part of Ernakulam - Muvattupuzha route, likewise Ernakulam - Tripunithura route is a part of Ernakulam - Muvattupuzha route. He submits that, therefore, the word 'route' was being understood as the space between two points. Unless the entirety of the said two points is the same, there would be no route. The learned counsel drew our attention to the decisions in Kondala Rao v. A.P.State Road Transport Corporation and others (AIR 1961 SC 82), Nilkanth Prasad v. State of Bihar (AIR 1962 (SC) Page 1135) and the decision in Standard Motors v. Kerala State (AIR 1969 SC 273). He also drew our attention to the Scheme of the Motor Vehicles Act 1939 in regard to the nationalisation of the route.
5. The learned counsel for the KSRTC, however, points out that the entire controversy has been set at rest by the Constitution Bench decision by the Apex Court in Adarsh W.A. No.1627/2013 6 Travels Bus Service v.State of U.P. (1985 (4) SCC 557). Therein the Apex Court inter alia held as follows;
"7. A careful and diligent perusal of Section 68-C, Section 68-D(3) and Section 69-FF in the light of the definition of the expression 'route in Section 2(28-A) appears to make it manifestly clear that once a scheme is published under Section 68-D in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other persons or otherwise, no person other than the State Transport Undertaking may operate on the notified area or notified route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit as originally granted to him covered the notified route or area. We are not impressed by the various submissions made on behalf of the appellants by their several counsel. The foremost argument was that based on the great inconvenience which may be caused to the travelling public if a passenger is not allowed to travel, say, straight from A to B on a stage carriage, to ply which on the route from C to D somewhere between the points A and B is part of a notified route. The answer to the question is that this is a factor which will necessarily be taken into consideration by the State Transport Undertaking before publishing the scheme under Section 68-C, by the Government under Section 68-D when considering the objections to the scheme and thereafter either by the State Transport undertaking or by the Government when the inconveniences experienced by the travelling public are brought to their notice. The question is one of the nationalisation of the route W.A. No.1627/2013 7 C-D against the inconveniences suffered by the public wanting to travel straight from A to B. On the other hand it is quite well known that under the guise of the os-called "corridor restrictions"
permits, over longer routes which cover shorter than not misutilised since it is well nigh impossible to keep a proper times permits for plying stage carriages from a point short distance beyond one terminus to a point a short distance beyond another terminus of a notified route have been applied for and granted subject to the so- called "corridor restrictions" which are but mere ruses or traps to for protecting the travelling public from inconvenience as suggested by the learned counsel we have no doubt that the State Transport Undertaking and the Government will make a sufficient provisions in the scheme itself to avoid inconvenience being caused to the travelling public. "
In the light of this argument of the KSRTC, no private operator can operate his vehicle on any part or portion of the notified route/area, unless the scheme permits him to do so. Under 1965 scheme, it is pointed out that, there is no provision which permits the private operator to operate.
6. To this, the answer of the learned counsel for the appellants is as follows;
In the first place, he drew our attention to paragraph 17 of the judgment in Adarsh Travels Bus Service (cited supra) , which reads inter alia as follows;
"17. We are therefore unable to see any merit in any of the civil appeals since none of the schemes placed before us contains any saving W.A. No.1627/2013 8 clause in favour of operators plying or wanting to ply stage carriages on common sectors. On the other hand, we found that invariably there is a clause to the following effect: "No person other than the State Government Undertaking will be permitted to provide road transport services on the routes specified in paragraph 2 or any part thereof". In the face of a provision of this nature in the scheme totally prohibiting private operators from plying stage carriages on a whole or part of the notified routes, it is futile to contend that any of the appellants can claim to ply their vehicles on the notified routes or part of the notified routes. "
Therefore, it is contended that in the facts of the case came up before the Constitution Bench, under the scheme in question there was a clause which prohibited private operators operating not only on the route but in any part thereof. He immediately points out that there is no such provision in 1965 Scheme. He would next contend that the law was laid down so in view of the insertion of Section 68FF in the Motor Vehicles Act 1939. Section 68FF reads as follows;
Restriction on grant of permits in respect of a notified area or notified route.
"68FF: Where a scheme has been published under sub section (3) of Section 68D in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme:
Provided, that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or W.A. No.1627/2013 9 notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route. "
After insertion of Section 68FF, which was done only in 1969, a private operator could operate in regard to nationalised route only if the scheme expressly authorised the same. But, the legal position prior to the same was that unless there was an exclusion, operator was not interdicted from operating unless the scheme expressly said so. He would submit that this distinction is vital in deciding the ambit of the 1965 scheme.
7. We may now also refer to the contentions raised by the learned counsel for the appellants referring to some of the earlier case law.
In Kondala Rao v. A.P.State Road Transport Corporation and others (1961 SCC page 82)
19. Re. (9) : The last of the arguments attacks the schemes in so far as they include new routes. The new routes included in the schemes are Eluru to Kovvur, and Nidadavol to Jeelugumilli. It is argued that the provisions of S. 68C are concerned with the existing routes only. Support is sought to be drawn for this contention from the provisions of S. 68C of the Act. The relevant part of that section W.A. No.1627/2013 10 says:
"Where any State Transport Undertaking is of opinion that.....it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking....the State transport undertaking may propose a scheme ......."
Now the contention is that the word " route'' in that section refers to a pre-existing route, for it is said that the words " route or portion thereof'' in the section clearly indicate that the route is an existing route, for a scheme cannot be framed in respect of a portion of a proposed route. We do not see any force in this contention. Under S. 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or portion of a route. There is no inherent inconsistency between an " area'' and a " route''. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area with the meaning of S. 68C. We, therefore, hold that S. 68C certainly empowers the State Transport Undertaking to propose a scheme to include new routes."
Thus, the scheme could be permitted where new routes are embraced within the scheme.
In Nilkanth Prasad v. State of Bihar AIR (1962 S.C) Page 1135) paragraphs 7 and 8 reads as follows;
"7. We are now concerned with the merits of the contention that where the scheme notifies, as a route, a part of a larger route operated by a private operator, the two routes must be regard W.A. No.1627/2013 11 as different, and the private operator cannot be prevented from running his omnibuses on that portion of his route which is a different route, although notified. Reliance is placed upon a decision of the Privy Council in Kelani Valley Motor Transit Co., Ltd. v. Colombo Ratnapura Omnibus Co., Ltd,1946 AC 338 : (AIR1916 P C 137). There, the Privy Council was concerned with two Ordinances promulgated in Ceylon intituled the Motor Car Ordinance (N0. 45 of 1938) and the Omnibus Service Licensing Ordinance (No. 47 of 1942). By the first schedule, para.1 of the latter Ordinance, it was provided that if applications were made by two or more persons for road service licences in respect of the same route, preference should be given to (a) an application from a company or partnership comprising the holders of all the licences for the time being in force under the Motor Car Ordinance No. 45 of 1938 authorising the use of omnibuses on such route, and (b) an application from a company or partnership comprising the holders of the majority of the licences referred to in (a) above. Section 7, sub.s 1 provides :
"The issue of road service licences under this Ordinance shall be so regulated by the Commissioner as to secure that different persons are not authorised to provide regular omnibus services on the same section of any highway : Provided, however, that the Commissioner may, where he considers it necessary to do so having regard to the needs and convenience of the public, issue licences to two or more persons authorising the provision of regular omnibus services involving the use of the same section of a highway, if, but only if - (a) that section of the highway is common to the respective routes to be used for the purposes of the services to be provided under each of the licences, but does not constitute the whole or the major part of any such route."
The real question in the case was whether the appellant there could take into account for the W.A. No.1627/2013 12 purpose of the first schedule, six omnibuses which had been licensed for the route, Panadura to Badulla via Colombo and the low level road. Panadura is 16 miles along the coast to Colombo and thence from Colombo to Ratnapura is 50 miles, and from Ratnapura to Badulla, a further 80 miles. It was clear that the route from Panadura to Badulla was not the same or substantially the same route as the route, Colombo to Ratnapura ; but it a licence for an omnibus on the route, Panadura to Badulla, was one authorising the use of the omnibus on the route, Colombo to Ratnapura, then six omnibuses plied by the appellant could be taken into account to turn the scale between the parties. Sir John Beaumont in expounding the meaning of the word "route" observed as follows:
"If 'route' has the same meaning as highway in the Ordinance this argument must prevail, since admittedly an omnibus running on the highway from Panadura to Badulla will pass over the whole of the highway between Colombo and Ratnapura, but in their Lordships' opinion it is impossible to say that 'route' and 'highway' in the two Ordinances are synonymous terms........... A 'highway' is the physical track along which an omnibus runs, whilst a 'route' appears to their Lordships to be an abstract conception of a line of travel between one terminus and another, and to be something distinct from the highway traversed."
8. This distinction between "route" and "road" is relied upon by the appellants to show that the notified route, which we have called 'AB' was a different route from the routes for which renewal of permits was demanded, even though route 'AB 'might have been a portion of the "road' traversed by the omnibuses of the appellants plying on their "routes." The distinction made by the Privy Council is right; but it was made with reference to the W.A. No.1627/2013 13 words used in the Ordinances there under consideration. The question is whether a similar distinction can be made in the context of the Motor Vehicles Act. Mr. Viswanatha Sastri appearing for the appellants took us through Ss. 42 to 57 of the Motor Vehicles Act and drew our attention to those in which the word "route" has been used, contra- distinguished from the word "area," and contended that everywhere the word "route" is used in the sense of a notional line between two termini running a stated course, and is used in contradistinction to what may be conveyed by the word "area". In Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 S C 82, this Court, in dealing with the scheme of the Motor Vehicles Act, declined to make any such distinction between "route" and "area". This Court, speaking through Subba Rao J., observed at p. 93 :
"Under S. 68-C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is no inherent inconsistency between an 'area' and a 'route'. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of S. 68C."
In any event, under S.68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area, and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area, as the case may be, may be either complete or partial, and under S. 68-F (2)(c) (iii), the Regional Transport Authority may modify the terms of any existing permit so as to "curtail the area or route covered by the permit, in so far as such permit relates to the notified area or notified route".
This means that even in those cases where the notified route and the route applied for run over a common sector, the curtailment by virtue of the W.A. No.1627/2013 14 notified scheme would be by excluding that portion of the route or, in other words, the "road" common to both. The distinction between "route" as the notional line and "road" as the physical track disappears in the working of Chap. IVA, because you cannot curtail the route without curtailing a portion of the road, and the ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same. The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap. IV- A, where the intention is to exclude private operators completely from running over certain sectors or routes vested in State. Transport Undertakings. In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme. Those portions cannot be said to be different routes, but must be regarded as portions of the routes of the private operators, from which the private operators stood excluded under S. 68F (2) (c) (iii) of the Act. The decision under appeal was, therefore, correct in all the circumstances of the case."
In Standard Motor v. Kerala State (AIR 1969 SC 273), the court inter alia held as follows;
"A scheme of nationalisation does not suffer any infirmity because it is in Form II where the routes notified are overlapped by the existing routes and both have common road sectors and the scheme in no way interferes with the services on the existing routes and in spite of the scheme the public can get service on the common road sectors from the operators running on the existing routes. In such a case it is impossible to say that the scheme is one of complete exclusion which under R. 3 of the Kerala Motor Vehicles (State Transport Undertaking) Rules (1960) has to be in W.A. No.1627/2013 15 Form I. From the language of Section 68-C and Rule 3 of the Kerala Motor Vehicles (State Transport Undertaking) Rules it appears that a complete exclusion scheme in relation to any area or route would be a scheme which completely excludes the existing road services of private operators on the area or route in question. The route includes the highway over which it runs. If other existing services are allowed to continue over a part of the highway relating to the notified route, the scheme is not one of complete exclusion. A stage carriage permit is granted under Sections 46 to 48 for a specified area. The words "roads included in the proposed route or area" in Section 47 (l) (f) imply that a route includes the road or the physical track. Section 68-F (2) (iii) implies that a portion of the route of an existing permit may relate to a notified route. This happens when the two routes have a common road sector. Section 68-F (2) ((iii) authorises the exclusion of the common portion of the road from the existing permit for giving effect to the scheme for the notified route. For the purposes of Chapters IV and TVA 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. When the impugned scheme does not exclude the road transport services of the existing routes over many sections of the highways relating to the notified routes, it follows that the scheme is not in complete exclusion of existing road transport services in respect of the notified routes and is not required to be in form I. There is no infirmity in the scheme because it was in form II; AIR 1962 SC l135 and AIR 1961 SC 82 and AIR 1966 SC 1661, Rel. on. ILR (1968) 2 Ker 96, Affirmed."
8. Thereafter, we may also notice judgment of the Apex W.A. No.1627/2013 16 Court Mysore S.R.T.c. v. Mysore STAT (1974 (2) SCC
752) . This case was considered by a Bench of three judges. The majority judgment was rendered by Justice Jaganmohan Reddy. Paragraphs 1 and 2 of the above judgment read as follows;
"The Mysore State Road Transport Corporation, the appellant - hereinafter called the 'Corporation' operates on the notified route under Chapter IV of the Motor Vehicles Act, 1939 - hereinafter referred to as "the Act" between Hiriyur and V.V. Sagar. It objected to the renewal of a permit to the third respondent C. Abdul Rahim for the route Hiriyur to Chitradurga and back via V.V. Sagar, Hosadurga and Janakal on the ground that this renewal will authorise an overlapping over three miles on the notified route. Both the Regional Transport Authority, Chitradurga and the State Transport Authority, Bangalore, negatived the objection. It may be mentioned that the ground upon which the appellate Tribunal dismissed the appeal against the order of renewal passed by the Regional Transport Authority was that in some other cases the Mysore Revenue Appellate Tribunal had held that the integrity of a scheme is not impaired if the distance of the overlapping portion is about five miles and if a condition not to pick up or set down passengers on the notified route is attached. On this reasoning the Tribunal thought there were no grounds to interfere with the impugned order. The appellant then filed a writ petition in what is now the Karnataka High Court, but it was dismissed by a Division Bench in limine. This appeal is by special leave against that dismissal order.
2. It appears that the passenger transport services on the routes appearing at Serial Nos. 1 to 22, 214,25,26,27 and 53 of the statement appended to the scheme approved under Section 68D(2) of the Act, subject to the modifications set out in the W.A. No.1627/2013 17 notification dated June 7, 1960, included "services between any two places therein" and the transport services were "to be run and operated by the State Transport Undertaking to the complete exclusion of other operators". The notification then sets out the various details of the said approved scheme known as the Bangalore Scheme. The question at issue is whether the scheme prohibits overlapping of the route or routes of private operators on a part or whole of the notified route. If the route or routes overlaps as aforesaid, then no permit can be granted to those private operators over the notified routes which prohibit them to operate over those routes. This proposition was laid down in several decisions of this Court to which reference will be made hereafter".
It is necessary to note paragraph 10 of the above judgment, which reads as follows:
" In any case under Section 2 (28A) inserted by Section 2 of Act 56 of 1969 the word "route" has been defined as meaning " a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another." This definition co- relates the notional line of travel between two termini with the portion of the highway which has to be traversed on that route. It is, therefore, apparent that where a private transport owner makes an application to operate on a route which overlaps even a portion of the notified route i.e. where the part of the highway to be used by the private transport owner traverses on a line on the same highway on the notified route, then that application has to be considered only in the light of the scheme as notified. If any conditions are placed then those conditions have to be fulfilled and if there is a total prohibition then the application must be rejected."W.A. No.1627/2013 18
We may notice that the majority judgment has been approved by the Constitution Bench in Adarsh Travels Bus Service case (cited supra) .
9. Now the time is ripe for us to refer to the Kerala Motor Vehicles (State Transport Undertakings) Rules 1960. Rule 1 (3) inter alia provides that every scheme proposed by the State Transport Undertaking shall be in Form I when it is in complete exclusion of existing road transport service. In Form II, when the scheme is in partial exclusion of existing road transport service and in Form III when the scheme is in supplementation of existing road transport service. A scheme to modify an existing scheme shall be in Form VI. There is provision for publication, calling for objection and hearing. In Form I, which provides for complete exclusion, it is inter alia provided in the preamble that area/route/routes specified in Schedule I is desired to be run and operated by the Kerala State Transport Department in complete exclusion of the existing passenger transport service on the routes or routes as such or any portion thereof. Thereafter, under Schedule I, the entry is regarding area or route or route in relation to which the scheme is proposed. The Kerala Motor Vehicles State Transport Undertakings Rules 1971 was framed W.A. No.1627/2013 19 thereafter. Rule 3 of which reads as follows;
"3. Manner of notifying schemes:
Every scheme proposed by the State Transport Undertaking for road transport services shall be in Form "A" or Form "B" as the case may be, and shall be published by the State Transport Undertaking in the Gazette and shall also be published at least in one daily newspaper in regional language circulating in the area involved. A copy of every scheme as proposed to be published in the Gazette shall be submitted to Government by the State Transport Undertaking and a copy each shall also be forwarded to the Secretary of the State Transport Authority and the Regional Transport Authority concerned. Copies of the scheme shall also be put up on the notice boards of the Government Secretariat, Offices of the State Transport Undertaking, the State Transport Authority and the Regional Transport Authority concerned. "
10. The learned counsel for the appellants would contend that a perusal of the so called complete exclusion scheme would show that the KSRTC was permitted to operate maximum of 30 trips under Schedule II of the said scheme. The routes with starting points and terminus with important intermediate station and route length are shown as Aluva Transport Bus Station to Vadakkumpuram (via) U.C.College, Kottapuram, Mannam, Paravur Nalvazhi. The distance is shown as about 20 Kms. Under the Motor Vehicles Act 1939 W.A. No.1627/2013 20 Chapter IVA made special provisions relating to State Transport Undertaking. Section 68C inter alia provided for preparation and publication of scheme of road transport service of a State Transport undertaking. Section 68C interalia provided that where any State Transport undertaking is of the opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or in particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport undertaking whether to the exclusion, complete or partial, of other persons or otherwise, it may propose a scheme.
11. Undoubtedly, Section 68D provided for objection to the draft scheme. Section 68E provided for cancellation or modification of the scheme. Section 68F dealt with the provision for grant of permits to State Transport Undertakings. Section 68FF states about restrictions on grant of permits in respect of a notified area or notified route. Section 68FF has its incarnation in Motor Vehicles Act 1988 in Section 104. According to the learned counsel for the appellants, the KSRTC is obliged to, if it wanted to increase the number of trips, W.A. No.1627/2013 21 seek modification of the scheme. He would contend that the ground reality may be borne in mind. At least 100 operators are operating on portions of Aluva - Vadakkumpuram route. None of the authorities ever understood the same as complete exclusion scheme(unless it was a permit for the whole route) and the authorities were proceeding on the basis that unless the private operators sought to operate on the Aluva
-North Parur route as such, no violation on the scheme was occasioned. He would also submit that under 1961 Scheme, under which Aluva - North Parur was one of the notified routes, private operators were permitted to operate as long as it did not pass through two or more intermediate places. He would submit that in this case, the appellants were operating by overlapping partly on the Aluva - Vadakkumpuram route and Aluva - North Parur route which leads also upto Nalvazhi. From Nalvazhi there is diversion, which takes the passengers to Vadakkumpuram and other route which leads to North Parur. The private operators were being granted permits on the basis of the Aluva - Parur notified scheme. As long as the buses did not pass through two or more intermediate points noted in 1961 Aluva - Parur scheme, it was permitted and the appellants were also operating likewise. W.A. No.1627/2013 22 This means that the authorities were also having the same opinion that even with the advent of the 1965 Aluva
-Vadakkumpuram route so long as there is no permit sought for the entire route, Aluva - Vadakkumparam as such it is permissible. In other words, under the 1965 scheme, Aluva- Vadakkumpuram route could not be described as a complete exclusion scheme. The 1965 scheme does not expressly exclude the operators from operating on the portions of the Aluva - Vadakkumpuram route. As long as that is not done and as the scheme was framed prior to the insertion of 68FF, the principle in Adarsh Travels Bus Service (cited supra) will not apply, it is contended.
12. Per contra, learned counsel for the KSRTC and the learned Government Pleader would submit that Aluva - Vadakkumpuram route is a complete exclusion scheme and in the light of the judgment in Adarsh Travels Bus Service (cited supra) approving the Mysore Transport Undertaking's case(supra) there is no scope for any contention otherwise.
13. There is no dispute that before the publication of 1965 Scheme, there was a draft publication in Form I, which we have adverted to, under the 1960 Rules. Form I is meant for a case of complete exclusion. We have already referred to W.A. No.1627/2013 23 the preamble of the Form. The preamble of the Form specifically refers to the scheme as a complete exclusion scheme in relation to the route. It is the route which is mentioned in Schedule I. Therefore, there can be no doubt that in this case after publication of the Scheme in Form I, the route is mentioned as Aluva - Vadakkkumpuram. This means that there has to be complete exclusion of private operators. Under 1965 Scheme there is no permission granted to the private operators to operate on the route or any portion thereof. The judgment in Adarash's case(cites supra) makes it clear that unless the private operator is permitted under the scheme to operate, the operators cannot demand any right to operate on the route or any portion thereof. It may be true that the 1961 Scheme(Ext.P4) was also published in Form No. 1. But, in Schedule I it is, however, provided that routes means routes as indicated in Annexure A and all routes connecting or passing through any two or more intermediate points. When it was published as it might have been published as complete exclusion scheme. But after the matter went through the process of hearing, the final approved scheme was framed permitting operators to operate as long as they did not pass through two or more intermediate W.A. No.1627/2013 24 places. But as far as 1965 scheme is concerned, there is no provision allowing the private operators to overlap on part of Aluva - Vadakkumpuram route as long as it does not pass through two more intermediate points. It is contemplated as a complete exclusion scheme by virtue of the publication of the draft in Form I. The parties understood the same as a complete exclusion Scheme. No objections apparently were filed. Therefore, the draft scheme so published came to be approved as such. Approval of the draft scheme as such would result in emergence of a complete exclusion scheme in regard to the route and necessarily through any portion thereof.
14. We would think that the exclusion of private operators must be implied at any rate by virtue of the circumstances beginning from the publication of the draft scheme in Form No. 1 to the actual terms of the approved scheme. Restrictions in the Scheme must be found from the Scheme itself. In the nature of 1965 scheme and the attending circumstances in which it was made, we have no doubt that it is a complete exclusion scheme. Apart from the fact that it does not contemplate any private operator running his service overlapping the said route in question, we reject W.A. No.1627/2013 25 the contention of the appellants that permits can be granted on the Aluva - Vadakkumpuram route as long as does it over laps on the route as such and it is not sought for the entire route.
The doctrine of desuetude.
15. The next question, which is pressed before us, is that whether, having regard to the facts and after promulgation of 1965 scheme, this scheme itself survives. According to the appellants, operation of the Doctrine of "Desuetude" must be treated as having put an end to the operation of 1965 scheme. It is submitted that from 1965, there has been consistent practice which reveals two dimensions. Firstly, the KSRTC itself has not operated any service on the Aluva - Vadakkumpuram route, for which it had proposed and made the allegedly complete exclusion scheme. Further more, a contrary practice has emerged. The contrary practice consists of Private operators being given permits to operate on portions of the Aluva - Vadakkumpuram route. At least 100 operators, it is pointed out, are operating and overlapping on parts of Aluva- Vadakkumpuram route. Having regard to the passage of more than four decades from the introduction of 1965 scheme, it does not lie in the mouth of the KSRTC to W.A. No.1627/2013 26 press into service 1965 scheme. He relied on the judgment of the Apex Court reported in Monnet Ispat And Energy Limited v. Union of India And Others (2012 (11) SCC Page 1). Therein, the Apex Court inter alia held as follows;
"197. The doctrine of desuetude and its applicability in Indian jurisprudence have been considered by this Court on more than one occasion. In State of Maharashtra v. Narayan Shamrao Puranik (1982) 3 SCC 519), the Court noted the decision of Scrutton. L.J. in R.v.London Country Council, ex.p.Entertainments Protection Assn. Ltd.(1931) 2 KB 215(CA) and the view of renowned author Allen in Law in the Making and observed that the rule concerning desuetude has always met with general disfavour. It was also held that a statute can be abrogated only by express or implied repeal; it cannot fall into desuetude or become inoperative through obsolescence or by lapse of time.
198. In Bharath Forge Co. Ltd. , inter alia the argument was raised that the Notifications of 17/6/1918 have not been implemented till date and therefore these notifications were dead letter and stood repealed "quasily". A three-Judge Bench of this Court entered into consideration of the doctrine of desuetude elaborately. After noticing the English law and Scots law in regard to the doctrine of desuetude, the Court noted the doctrine of desuetude explained in Francis Bennions' Statutory Interpretations; Craies on Statute Law(7th Edn.) and Lord Mackay's view in Brown v. Magistrate of Edinburgh.
199.The Court also referred to Repeal and Desuetude of Statutes, by Aubrey, L: Diamond wherein a reference has been made to the view of Lord Denning, M.R. In Buckoke v Greater London Council. Having noticed as above, the Court in W.A. No.1627/2013 27 para 34 of the Report stated:(Bharat Forge Co. Ltd. Case SCC pp .446 - 47).
"34. Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the 'dead letter'. We would think it would advance the cause of justice to soil is ready to accept this principle; indeed, there is need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become "dead letter". A new path, is , therefore, required to be laid and trodden.".
200.xxxxxxx xxxxxxxxxx
201. From the above, the essentials of the doctrine of desuetude may be summarised as follows;
(i). The doctrine of desuetude denotes a principle of quasi-repeal but this doctrine is ordinarily seen with disfavour.
(ii). Although the doctrine of desuetude has been made applicable in India on few occasions but for its applicability, two factors namely (i) that the statute or legislation has not been in operation for a very considerable period, and (ii) the contrary practice has been followed over a period of time must be clearly satisfied. Both ingredients are essential and want of any one of W.A. No.1627/2013 28 them would not attract the doctrine of desuetude. In other words, a mere neglect of a statute or legislation over a period of time is not sufficient but it must be firmly established that not only the statute or legislation was completely neglected but also the practice contrary to such statute or legislation has been followed for a considerable long period.
202. Insofar as the 1962 and 1969 Notifications are concerned, I am of the view that the doctrine of desuetude is not attracted for more than one reason. In the first place, the notifications are of 1962 and 1969 and non- implementation of such notifications for 30-35 years is not that long a period which may satisfy the first requirement of the doctrine of desuetude, namely, that the statute or legislation has not been in operation for a very considerable period. Moreover, the State of Jharkhand came into existence on 15/11/2000 and it can hardly be said that the 1962 and 1969 Notifications remained neglected by the State Government for a very considerable period. As a matter of fact in 2006, the State Government issued a notification mentioning therein about the reservation make by the 1962 and 1969 Notifications. Thus, the first ingredient necessary for invocation of the doctrine of desuetude is not satisfied. Secondly, and more importantly, even if it is assumed in favour of the appellants that the 1962 and 1969 Notifications remained in disuse for a considerable period having not been implemented for more than 30- 35 years, the second necessary ingredient that a practice contrary to the above notifications has been followed for a considerably long period and such contrary practice has been firmly established is totally absent. As a matter of fact, except stray grant of mining lease for a very small portion of the reserved area to one or two parties there is W.A. No.1627/2013 29 nothing to suggest much less establish the contrary usage or contrary practice that the reservation made in the two notifications has been given a complete go-by."
16. The learned counsel also drew our attention to the judgment of the Division Bench of the Calcutta High Court in Abdul Aziz Sekh v. Siraj Uddin Mollah(AIR 1999 Calcutta
191) wherein the Division Bench approved the principle of "Desuetude" in the context of a case under the Motor Vehicles Act. He would contend that though the Judgment was set aside by the Apex Court, it was done on the basis that the writ petition itself which was allowed by the Division Bench was not maintainable. It is pointed out that the Apex Court has not interfered with the judgment on its finding regarding "Desuetude".
17. Per contra, learned Government Pleader and the learned counsel for the KSRTC would contend that the conditions are not established for applying the doctrine of "Desuetude". It is submitted that the appellants have not established the alleged contrary practice as prevalent from 1965 onwards. It is further contended that, at any rate, it cannot be found that for a very considerable period of time W.A. No.1627/2013 30 the 1965 scheme was not in use.
18. In the affidavit of the KSRTC in the appeal, it is indicated that on the notified route Aluva - Vadakkumpuram, the KSRTC is conducting 292 single trips, 96 town service, 54 generum service on the route Aluva - Paravur. That apart, from Paravur Aluva Depot, the KSRTC is conducting approximately 30 trips on the route Vadakkumpuram - Paravur. For the smooth implementation of the scheme, a sub depot was established at North Paravur on 13/9/1987. From Aluva to Paravur, there is heavy traffic requirement and from Paravoor to Vadakkumpuram, traffic demand is comparatively low and on the basis of traffic requirement, the schedules are arranged.
19. Further an additional affidavit is filed. Therein it is inter alia stated that the total route length of Aluva - Vadakkumpuram route is 20 Kms. Gothuruthu is situated approximately 5 km away from Vadakkumpuram. KSRTC is conducting six single trips from Aluva to Gothuruthu via UC College, Kottapuram, Mannam, Paravur Nalvazhi, Vadakkumpuram. Inclduing the above six direct services, KSRTC is conducting approximately 30 single trips to Vadakkumpuram from various units. It is further stated that W.A. No.1627/2013 31 from Aluva to Paravur via UC College, Kottapuram, Mannam, Paravur Nalvazhi, KSRTC is conducting 292 single trips of ordinary service, 96 single trips of Town to Town service, 54 single trips of Jn'rum service. Annexure 2 order dated 23/12/2010 issued by the 5th respondent is produced along with the additional counter affidavit. It is true, Annexure 2 is an order wherein the 5th respondent rejected the application of another stating that the proposed route objectionably overlaps Aluva - Vadakkumpuram complete exclusion scheme. The appellants have filed an additional affidavit stating that no permit, either regular or temporary has been granted to the KSRTC to conduct service on the route Aluva - Gothurathu. Aluva - Gothurathu route is stated to be not a notified route .
20. The Doctrine of "Desuetude" is not a generally favoured concept. The doctrine of "Desuetude" neither involves express repeal nor implied repeal. It is brought under the category of quasi repeal, for which the law must have fallen into desuetude for a 'very considerable period of time', that is, it must be shown that the law, as such, has not been enforced for a ' very considerable period of time' and further more, it must also be established that there has been a contrary practice.
W.A. No.1627/2013 32
21. In this regard, we must advert to the pleadings in the case. It is true that the writ petitioners have contended before the Tribunal that the 1965 Scheme had not come into effect. It is contended in the writ petition that the 4th respondent(KSRTC) had not filed any objection to the contentions. In ground No. "C" it is alleged that the Aluva _ Vadakkumpuram notified route has not been given effect to, or in other words, implemented till date. It is also stated that the KSRTC has not made endeavour to avail permit under the approved scheme.
22. We have already seen that two conditions must essentially be satisfied to apply doctrine of desuetude. The law must fall into disuse for a 'very considerable period of time'. We have already noted paragraph 202 of the Judgment in Monnet Ispat And Energy Limited 's case (cited supra), wherein the Apex Court took the view that the period of 30-35 years cannot be said to be considerable. In this case, even accepting that the appellants have proved that the scheme was in disuse and also there is a contrary practice, it is difficult for us to hold that it was so for a ' very considerable time'. On this ground alone, we would think that it cannot be appropriate for us to grant relief on the basis of doctrine of W.A. No.1627/2013 33 desuetude.
In such circumstances, the writ appeal is merit less and the same is dismissed.
Sd/-
K. M. JOSEPH, JUDGE .
Sd/-
K.ABRAHAM MAHEW, JUDGE.
Dpk.
/True copy/ P.S to Judge.
W.A. No.1627/2013 34 K. M. JOSEPH & K.ABRAHAM MATHEW, JJ
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Dated this the 16th day of January2014 O R D E R W.A. No.1627/2013 35 K.M. Joseph, J Today, an affidavit is filed by the Chief Law Officer of the KSRTC, wherein it is inter alia stated that, on the notified route Aluva - Vadakkumpuram, the KSRTC is conducting 292 single trips. It is also further stated that for the smooth implementation of the scheme, the Kerala State Road Transport has established a Sub Depot at North Paravur on 13/9/1987 and up to that time direct service from Aluva depot to Vadakkkumpuram was being operated. Exception is taken to the same by the learned counsel for the appellants. When this was put to him, the learned counsel for the KSRTC has pointed out that the statement that the KSRTC is conducting 292 single trips in Aluva - Vadakkumpuram route is not correct and that relates to Aluva - Paravour. In regard to the allegation that direct service from Aluva depot to Vadakkumpuram was being operated till 13/9/1987, we notice that no particulars are there in the affidavit in support of the same. The learned counsel for the KSRTC seeks time to file an additional affidavit. We grant time till Monday (20/1/2014) Post on 20/1/2014.
W.A. No.1627/2013 36
K. M. JOSEPH, JUDGE .
K.ABRAHAM MATHEW, JUDGE.
dpk.