Kerala High Court
N.Raveendran vs State Of Kerala on 13 April, 2023
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 13TH DAY OF APRIL, 2023 / 23RD CHAITHRA, 1945
WP(C) NO. 15119 OF 2022
PETITIONER:
N. RAVEENDRAN, AGED 66 YEARS
S/O. NANU, RANJINI, OLAVARA, UDUMBANTHALA P. O.,
KASARAGODE.
BY ADV. SRI. ANIL KUMAR M. SIVARAMAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE SECRETARY ,
TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3 KERALA STATE ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN, THIRUVANANTHAPURAM, PIN - 695 035,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.
4 THE CHAIRMAN AND MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN,
THIRUVANANTHAPURAM, PIN - 695 035.
5 KERALA URBAM ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN, THIRUVANANTHAPURAM, PIN - 695 035,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.
6 THE TRANSPORT COMMISSIONER,
MOTOR VEHICLE DEPARTMENT, 2ND FLOOR,
C. V. RAMAN PILLAI ROAD, DPI, VAZHUTHACAUD,
THIRUVANANTHAPURAM - 695 014.
BY ADV. SRI. DEEPU THANKAN, SC, KSRTC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.04.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C): 15119/2022 -:2:-
JUDGMENT
S. Manikumar, CJ Instant public interest writ petition is filed for the following reliefs:
(i) A writ of mandamus or any other appropriate writ, direction or order, commanding respondents 2 to 5, to restore the operation of all the buses of KSRTC and KURTC docked in various depots and yards by repairing the entire vehicles, within a time frame;
(ii) A writ of mandamus or any other appropriate writ, direction or order, directing the 1 st respondent to initiate appropriate legal action against the officials responsible for dumping of 2800 buses in various yards by conducting a detailed enquiry;
(iii) Direct the transport and motor vehicle department to initiate stringent actions against the operators of parallel service of contract carriage vehicles and book them in accordance with law;
(iv) Grant such other appropriate writ, direction or order as this Court may deem fit and proper in the facts and circumstances of the case.
2. Brief facts for disposal of the writ petition are that; petitioner is a retired school teacher, and claims to be right to information activist of Kollam district. His grievance is that Kerala State Road Transport Corporation (KSRTC) has purposefully curtailed their services by canceling more than 1750 schedules per day, which forced the passengers, especially the employees, working in Government and private sector, to opt parallel services of contract carriage vehicles operating almost all the districts in Kerala.
WP(C): 15119/2022 -:3:-3. Petitioner has stated that KSRTC is a Government undertaking, established in 1965, under Section 3 of the Road Transport Corporation Act, 1950. According to him, KSRTC is the successor of Travancore State Transport Department, established in 1938, by His Highness "Sree Chithira Thirunal Balarama Varma" under the supervision and guidance of Mr. "Salter", an efficient Engineer from England. Now, the KSRTC own 413 acres of land, 6380 buses, 93 depots and around 28000 permanent staffs. The sanctioned fleet strength of KSRTC is 5500 schedules per day with sanctioned driver and conductor strength of 14976 each.
4. Petitioner has further stated that after the second wave of COVID-19, the above fleet strength was purposefully curtained or reduced to 2800-3200 schedules per day, by keeping around 2800 buses idle, in various yards. During the first wave of COVID-19 pandemic, there was a specific direction to protect the vehicles by starting the same daily with a short run. But, during the second wave, specific direction was issued to dock all the vehicles in various yards by removing battery and diesel.
5. Relying on Exhibit-P1 newspaper report dated 18.11.2021, petitioner has stated that all the tyres were removed and replaced with dummy tyres. Now the abovesaid vehicles were abandoned in various depots and yards. In addition to that, the buses decked due to minor WP(C): 15119/2022 -:4:- repairs were also abandoned and turning into scrap. No sincere efforts have been made by the management to repair the same and restore the operation in its original sanctioned strength.
6. Petitioner has further stated that it is evident from Exhibit-P1 report that the value of the abandoned vehicles will come to around 700 Crores. However, KSRTC is moving ahead with tender notification, inviting from private operators to take their buses on long lease for operating super class permits.
7. Petitioner has further stated that Kerala Urban Road Transport Corporation (KURTC) is a subsidiary corporation of KSRTC, established in 2015, as per G.O.(Rt.) No.454/2014 dated 09.10.2014, to provide effective, adequate, economical and properly coordinated road transport service in urban and city areas. According to the petitioner, KURTC own 719 buses provided by the Central Government from Jawaharlal Nehru Urban Renewable Mission (JNNRUM). Out of 719 buses, 190 are Volvo A/c Low Floor buses with market price of Rs.94.5 lakhs per vehicle.
8. Petitioner has also stated that now out of 190 Volvo buses, only 40 buses are used for operation and other vehicles are kept idle and dumped in Thevara headquarters and Ernakulam, as evident from Exhibits-P2, P3 and P4 photographs. According to the petitioner, the WP(C): 15119/2022 -:5:- office of KURTC, Thevara is also closed down and a notification is issued in that regard, to let out the building.
9. Referring to Exhibit-P5 online media, petitioner has stated that the steep fall in the number of transport buses in Kerala is very helpful for aggressive contract carriages, operating with the silent consent of police and motor vehicle department. Mismanagement, misuse of official power, lack of experts, deficiency of funds and shortage of spare parts are the main reason for keeping the vehicles in various yards. However, management is trying to buy new buses in the name of K-Swift by spending Crores of rupees from KIIFB. In addition, petitioner has contended that the KSRTC and KURTC are creating problems by denying Government aid and funds and making public opinion that KSRTC is a white elephant.
10. Petitioner has further stated that it is an admitted fact that travelling public are the real sufferers and victims for the unfair and unethical decision of Corporation officials. State Transport undertakings are established to maintain monopoly in public transport sector by notifying routes to provide efficient, adequate, economical and properly coordinated road transport services for poor and needy passengers. But, the Government and the management are purposefully creating an WP(C): 15119/2022 -:6:- atmosphere with an intent to wind up the Corporation to help the private bus operators.
11. He has also stated that KSRTC officials are very crazy in availing funds from KIIFB for purchasing brand new Volvo and Leyland buses by spending Crores. The interesting thing according to the petitioner is, K-
Swift company has no permanent and experienced employees, operational expertise and infrastructural facilities, however, KSRTC is going to take the buses of K-Swift. According to the petitioner, as per the memorandum of association of K-Swift, and Government orders, KSRTC will take the vehicle of K-Swift, for long distance service by availing managerial, technical, infrastructural and operational expertise on lease.
12. On the above pleadings, petitioner has raised the following grounds in the writ petition:
A. KSRTC is a State owned transport undertaking, established under Section 3 of the Road Transport Corporation Act, 1950 and KURTC is a subsidiary for providing adequate, efficient, uninterrupted and properly coordinated transporting facility to people of downtrodden. State Transport undertakings are established to provide cheap and best travel facility in an affordable tariff by creating a monopoly to operate buses. Their service is very valuable and cannot be equated with WP(C): 15119/2022 -:7:- private transport undertaking, which stands for making profit only.
B. It is evident from various media reports that 2800 plus buses, including super class buses, low floor AC Volvo and other valuable buses are dumped in various yards for the last several months. Some of them are decked, due to the lockdown declared by the Government and need only minor repairing for making road worthy. However, the management is not sincere in initiating steps to restore the operation of cancelled schedule by repairing the buses. Now, it is providing the funds and stringent actions to save KSRTC.
C. The KSRTC and KURTC curtailed large number of buses operated through various, which helped the contract carriages doing parallel services throughout Kerala. It is the bounden duty of the Government to provide adequate funds and appoint experts to restore the name and fame of the KSRTC for the interest of the public at large.
13. Refuting the averments made in the writ petition and opposing the prayers sought for, the Chief Law Officer of KSRTC - 3 rd respondent, has filed a counter affidavit, wherein it is contended as hereunder:
A. First of all, the allegation in the writ petition that more than 2800 buses were dumped in various yards of the KSRTC is not correct. It is submitted that most of the figures quoted in the petition are without basis or understanding the facts. KSRTC has an aging fleet with an WP(C): 15119/2022 -:8:- average of 10.16 years. This is very high when compared with the age of the fleet of most of State Transport Undertakings. Prof. Susheel Khanna, Convener of the committee appointed by the State Government to study the problems of the Corporation, has submitted his report namely "KSRTC: crisis and turnaround strategy" on 27.02.2019. In the said report, KSRTC has the highest percentage of staff to bus ratio and the highest percentage of buses on dock etc. KSRTC is operating nearly 100 workshops and 93 depots and the decisions often taken for starting a depot or workshop were due to extraneous conditions rather than scientific or a well thought out managerial decision. The Delhi Transport Corporation has 39 depots and 2 central workshops for a fleet of 4167 buses (STU profile and performance 2016 and 17). The Karnataka SRTC has 80 depots, 14 divisional workshops and two regional workshops for a fleet of 8212 buses.
B. It was further submitted that during the pre- COVID period, the Corporation was having 6202 buses;, operating 4336 schedules everyday, and was carrying more than 26 lakhs passengers everyday. During the lockdown period, all the buses were off the road, and even after the withdrawal of the lockdown, many buses were off the road. The Corporation could not use the air-conditioned buses due to the COVID protocol instructions being issued by the Health Department of the state as well as the Union Government. This is inclusive of the air-conditioned low floor buses supplied under the JNNURM schemes of the WP(C): 15119/2022 -:9:- Central Government. KSRTC has a total number of 219 air- conditioned buses as on 1st March, 2020. Out of the 190 low floor AC buses, only 75 are in the dock, which include 38 buses, which are permanently on dock from 2019 onwards. As of now, 94 are in good condition, suitable for services, and 21 buses require minor repairs to make them useful.
C. It was further contended that the Jawaharlal Nehru National Urban Renewal Mission (JnNURM) buses were supplied by the Government of India. The State was never consulted in deciding the specifications of the buses nor its suitability in Kerala cities and towns were accessed. These low floor buses have a high turning radius of 10.5 meter when compared with other ordinary buses and the width of some of the buses are also high at 2.52 meters when compared with the 2.47 meters width of ordinary buses. 240 buses out of the JNNURM -Phase-I supplied in the year are with rear-engines. These buses have 3 gear cables of length 9.6 mts and each costing around H Rs.29,500/piece with total cost of Rs. 88,500/- per bus. The mileage of the buses was also very low which comes to 3.40 Kms./Liter for city operations. When the ordinary buses were obtaining a mileage of 4.10 Kms./liter on an average these buses were given only 3.4 Kms./L. The low floor rear- engine buses are not preferred by the corporation due to the fact that these cables are often broken and the maintenance cost is very high. Most of the State corporations which obtained these buses are not using them now. Delhi Government is using these buses since the WP(C): 15119/2022 -:10:- repair and service has been outsourced to the manufacturers namely Tata Motors Ltd. The workshops of the DTC are run by the Tata Motors Ltd. Among 239 non- AC JNNURM buses, most of the buses have been abandoned since 2019 and are lying in workshops spread across Kerala. Since these 100 workshops had 2-3 such buses lying there, this never came to the notice of anyone. It came to the notice of public and the media, only when these buses and other buses which were permanently on dock and lying in 100 depots were brought to the yards for assessment on its operability and need for retaining them or scrapping them. The Susheel Khanna report pointed out a high percentage of off road and 83% of fleet utilization out of 6202 buses held. When the present Chairman and This anomaly has been rectified in the fare revision effected from 1st May, 2022.
D. There are 190 low floor air-conditioned buses supplied under the JNNURM scheme in two phases. Of these, 80 buses have been, supplied in the years 2009 to 2013 and are above 9-13 years old. All the 37 buses which are on dock during 2019-2020 belong to this category. Since KSRTC does not have many air-conditioned buses, the attitude of the management was always in favour of using these buses in long distance services. When the present Managing Director took over during June 2020 no AC buses were operating due to COVID. Since there was a reluctance among the public in using air-conditioned buses and there were restrictions by the health WP(C): 15119/2022 -:11:- department on running air-conditioned buses during the pandemic, the fixed windows of one bus was modified with sliding windows and services were operated as non-AC buses once lockdown was lifted temporarily. These buses are designed for the city services and have very rigid plank like seats, not at all suitable for long-distance services. The seats of one bus were also converted as push back seats. But the conversion itself cost a high amount and also it was taking away the looks of the buses and created operational issues. These buses have a very low mileage of 2.5 to 2.7 Kms./L. The consumer price of diesel as on today is Rs. 128.27. and with this mileage, the fuel cost of these buses alone will come to over Rs.47 to 52 per km. The tyres, other maintenance cost insurance etc., will add another Rs.7.40/- per kilometer and with the wages of the crew, this bus can be operated only around Rs.60 to 70 per kilometer. The average earnings per kilometer from these buses will be around Rs. 40 to 50 km when it was successful as long distance "Minnal services". Since KSRTC do not have many air-conditioned buses and the engine conditions and sub-assemblies not creating any problems, KSRTC intends to use these buses as bypass riders, Bus on Demand (BOND) services and for tourist operations. As of now, 94 buses are fully in operational status and 75 are in dock and 21 for minor repairs. It is estimated that Rs. 6.5 crores is required for repair and making the buses on dock operational, and at this stage, it is not economical to operate these buses and therefore management is not WP(C): 15119/2022 -:12:- making any investment for their repair. When the market is ready, it will be operated. As of now, KSRTC is not intending to scrap these buses till replacement air- conditioned buses are procured.
E. It was further stated that KSRTC has 165 BSI buses, 2916 BSII buses and 2968 BSIII buses. The BSI buses are more than 16 years old, BSII more than 10 years old and need replacement to avoid frequent breakdowns. The cost of maintenance of these buses is very high. Government used to fund the purchase of thousands of buses earlier and even then, also, since it has not brought out any positive effect in lowering the ever-mounting losses of the corporation, the Government has stopped the supply of these buses until some real reforms are implemented in the corporation. The last bus bulk purchase was in the year 2017, i.e., 7 years ago, when 101 buses were purchased. Government has originally fixed the maximum permit period of long-distance basis/ super class buses as five years. Due to the shortage of buses, this period was extended by the Government to 7 years. Government wide G.O.(P)No.43/2019/Tran dated 4th December, 2019 has further extended the permit life of 704 buses to 9 years. During the current year 195 buses will go out of service of the super class category and next two year 716 buses will go out of service from the same category. Government is willing to purchase only buses with clean fuels in order to reduce the fuel costs. Thus, electric and CNG buses are under various stages of WP(C): 15119/2022 -:13:- purchase and about 450 such buses will be inducted soon. For the last two years, the Government has provided Rs.50 Cr for the purchase of new diesel buses. These buses are to replace the aging super class buses every year worldwide and India is not an exception. Due to the high cost of maintenance, buses are being hired by Governments in STUS. The Delhi Government has created a new entity under the name Delhi Integrated Multimodal Transport System Ltd. (DIMTS) and runs 3000 odd buses on lease. The bus operator will have to maintain the buses and also provide drivers. Under the present situation, induction of just a hundred buses every year will not take care of the replacement of super class buses and this is the reason why buses are to be hired. There was strong opposition in taking buses on wet lease (with driver) when it was introduced in October 2017, that is with the driver. There were once 42,000 employees in the corporation. Even with around 26,000 employees, at present, the salary cost alone comes to Rs.97 Cr per month. The duty patterns of the employees are fixed as per the Motor Transport Workers Act, 1961. This Act even speaks about the necessity of a conductor when most of the long-distance buses which stop only at depots are having a conductor sitting idle in the bus. These aspects are being negotiated as part of the long-term agreement with the unions and now non-stop buses are being started, amidst opposition from various corners. The effort of the management is to optimize the human resources available through constant negotiations WP(C): 15119/2022 -:14:- with the unions and offers incentives for taking up additional duties.
F. It was further contended that the buses selected for scrapping in KSRTC will have normally covered an age limit of a minimum of 10 years or 10,00,000 Kms. of utilization on road. Before scraping, re-used parts such as Engine, gearbox, battery, etc., will be taken from the buses to be scrapped for future use. The strategy adopted by the management is as follows;
a. Bring all the buses in the dock for a long time in different depots to a few yards. It is submitted that locations all over the state is a time and cost consuming process.
b. A committee formulated consisting of Assistant Works Government Manager (District level), Regional Works Manger, Faculties/ retired faculties from Engineering College/IHRD/LBS/ Mechanical Engineer (Either in service/retired) from Motor Vehicle Department will inspect and submit a report on the physical verification of buses. Then the details will be placed before the Board of directors for approval. On approval by the Board of Directors, the matter will be communicated to the Workshop Heads concerned to salvage the useful items, prepare the vehicle for auction and submit the survey report.
c. Then a committee will be constituted internally for bringing the vehicles to one or two yards from 100 assessing the salvage value.
d. On receipt of salvage value, the details of the buses to be scrapped will be informed to the Metal Scrap Trading Corporation (MSTC) (Central Public Sector Undertaking under the Ministry of Steel) for uploading in their website for bidding.
The above procedure is being followed by the Corporation and is a time consuming one.
WP(C): 15119/2022 -:15:-G. It was further contended that scrapping is also necessitated due to the fact that KSRTC expects to acquire around 750 Buses during the current year. Only about 50- 60 buses can be parked in one acre of land and the depots need space to accommodate the new buses being acquired.
H. It was also submitted that the total number of buses docked as non-operative buses due to pandemic COVID-19 is 1736. Now the present figure of 13 docked buses is 455. Out of the above 1736, 920 buses have been selected for scrap and were approved by the Board for scrapping. Further, among 920 buses, 300 buses have been given to Shop on Wheels (a new business venture by KSRTC converted as Milma stalls, sleepers in places like Munnar etc.) and 620 buses are in the process of scrapping. It is submitted that 148 buses are already auctioned through the MSTC and 30 are uploaded for bidding, 18 numbers were informed to the MSTC for the bidding process. Further, 424 are under different stages of the scrap process.
I. It was further submitted that during COVID, the number of passengers has reduced substantially and consequently operation of the buses was also reduced. Therefore, the Corporation has taken a managerial administrative decision not to use many uneconomical vehicles on the road and decided to park them in two or three yards instead of parking them in different depots as the same was causing inconvenience to the traveling public and also to the Corporation. Thus, most of the buses WP(C): 15119/2022 -:16:- were shifted to yards situated in Thevara, Parassala, Enjakkal, Chadayamangalam, Kanhangad and Edappal.
J. It was further submitted that as regards the remaining 816 buses (1736-920-816), the Corporation decided to utilize the same for service operation, and among them, 458 buses were already released for service operation after making necessary repair works and obtaining fitness certificates, and the rest, 358 buses are being made ready for service operation. Considering the price of the diesel, usage of the old buses is uneconomical for the corporation. Low floor buses are providing only 2.5 Kms per liter of diesel and the price of the diesel or KSRTC is 128/-. Maintaining uneconomical buses is certainly a burden for the Corporation. Considering all these aspects, the Corporation decided to scrap the buses. The following chart shows the number of years completed by each bus selected for scraping.
YEARS RTC BUSES JnNURM 9 to 10 0 7 10 to 11 18 85 11 to 12 12 138 12 to 13 12 9 13 to 14 98 14 to 15 352 15 to 16 23 16 to 19 166 Total 681 239 The above chart shows that most of the vehicles have crossed the 10 years fixed by the corporation and more WP(C): 15119/2022 -:17:- than that maintaining the vehicles is really a burden for the Corporation.
K. It was further submitted that over and above what has been directed to be incorporated in the statement, the Corporation intends to point out one more aspect to bring to the notice of this Court, which is about the steps being taken in the last couple of years by the Corporation and the State Government to uplift the Corporation and to provide better service to the general public. The Corporation is making earnest efforts to reduce the costs and improve the revenues. KSRTC was operating about 100 workshops, 100 offices and 100 stores. As part of cost cutting measures, the workshops are to be limited to 22 locations, the office and stores to 14 to 16 locations. For instance, an operating center which was sanctioned due to extraneous decisions has on an average of incurring a monthly expense around Rs.50 lakhs, whereas it won't even bring in Rs.15 lakhs as income. The efforts of computerization failed miserably in the past. Now the computerization process is in full swing. The employees' pay rolls have been computerized using SPARK. Transferring and posting modules of SPARK, e- office etc., will be implemented soon. The crew rostering software will be implemented during this year. The vehicle management system is in the last stages through DIMTs. The application, which will track the bus movement will be operational within a couple of months. The new Electronic Ticketing machines have been introduced and the data WP(C): 15119/2022 -:18:- from ETMs will be analyzed to understand passenger traffic, loss making segments, etc. Smart cards and season tickets will also be Introduced shortly. The major bus manufacturers have agreed to provide on-site service coordinators to ensure preventive maintenance of vehicles. The workshop modernization, started two years ago, will be completed by next year. Dedicated engine Reconditioning workshops for buses, diesel pump calibration units etc., are also to be set up. Government provides around Rs.50 Crores for computerization, training and modernization every year. The reforms can be done only through the cooperation of employees. Instead of any confrontation, the management has tried to convince the employees through their unions about the need for change. In order to take them into confidence, the long pending salary revision was implemented. But that was done only after ensuring that they agree to implement some hard reforms, which are being currently undertaken, after January 2022, when the long-term agreement was signed. The reorganization of schedules of ordinary and fast passengers are being done by a committee consisting of representatives of three recognized unions at the depot, district and zonal level. The clustering of depots under a unit officer is also being implemented to avoid duplication of schedules. In order to ensure an excess supply of buses during the peak days of Monday and Fridays and holidays, a District Common pool of buses is being created. This will also ensure timely repair of buses, their preventive WP(C): 15119/2022 -:19:- maintenance and optimization of inventory. A separate wing for accounting, bifurcating the administrative wing, with staff having qualifications in accounting, is being created. A separate pool of Driver cum Conductors is to be set up through internal deployment. Excess staff from maintenance is being redeployed to fuel retail outlets, marketing and other new ventures. Now fare revenue is of utmost importance. BOT projects will be undertaken in PPP models not only to generate funds from the depots, but also to ensure decent amenities like toilets, rest rooms, SHE-lodges, etc. for the passengers. Toilets in 30 depots are getting refurbished with the assistance of LSG institutions. For the success of all these reforms, the middle management has to be empowered. The middle management also needs to be convinced and strengthened to take up the challenges for implementing the reforms. Similarly, the attitude of the operating crew needs to be changed. The training of middle management and crew is being undertaken through leading management institutes on a regular basis for which the Government has allocated Rs.1 Crore per annum. Over 100 drivers and conductors have already been trained. It will take some time for bringing in any behavioral change management and reforms in this mammoth organization which operated purely manually relying on the skills of its staff, without computerizing any of its activities. It needs a herculean effort to transform an age-old loss making Corporation to a modern fleet operator, operating on commercial WP(C): 15119/2022 -:20:- principles, but with social objectives of the Government in mind. It would take another three more years for completion of these tasks.
14. Apart from the above, in the counter affidavit filed by the Deputy Law Officer of the KSRTC, on behalf of respondents 2 to 5, it is stated that the primary objective of KSRTC is to serve the public at large, by providing road transport facilities at nominal fares, keeping in mind the weaker section of the society.
15. It is further contended that the KSRTC operates its services to every part of the State, irrespective of its financial viability in operating a large number of services. On account of the social perspective to assist the people, KSRTC is not a profit-oriented establishment and though the KSRTC is lacking funds to carry out its functions and even to pay its employees, it strives to achieve the object of the Act, with the support of the State Government.
16. Relevant portion of the said counter affidavit is reproduced:
A. Kerala State Road Transport Corporation is the largest fleet operator in the public transportation sector in Kerala. Even in this crisis the corporation has taken steps to retain services where public demand is more. But due to some limitations and to reduce further loss, the corporation was forced to take some steps to cut down the operational expenses and have to reduce the services because of the non-availability of sufficient passengers WP(C): 15119/2022 -:21:- due to the COVID-19 pandemic situation. KSRTC has not deliberately curtailed any services to bring a difficulty to the public and has not supported any private sector to operate parallel services or contract carriage. In fact, KSRTC has always objected unauthorized parallel services and has taken several initiatives to stop the parallel service by lodging complaints to respective authorities. Due to the COVID-19 pandemic situation lockdown was imposed by the Government of Kerala on 24th March 2020. Prior to lock down, KSRTC operated 4336 services on an average everyday. But during the lockdown period, limited services were operated by KSRTC to the public as per the restriction imposed by the Government of Kerala from time to time. The main challenge faced by KSRTC during the lockdown period is crucial, facing financial crisis, the accumulation of a large number of buses for a long period in depots/garages. It causes difficulty in the parking of daily operational buses in garage and depot premises. In this scenario, in order to reduce the spare parts purchase and Insurance cost, KSRTC has decided to shift 1736 non-operative and major repair required buses in various places for controlling the expenses. After relaxation in lockdown, there was only a gradual increase in the demand for buses for service operation for a span of two years (2020 to 2021). When the service operation Increased gradually KSRTC released a proportionate number of buses from depots to meet the demand. After the buses available in depots had been fully utilized and it is observed that more buses are needed as per the demand, KSRTC started to release the buses from the reserve pool.
B. First of all, the allegation in the writ petition that more than 2800 buses were dumped is not true. It is also submitted that most of the figures quoted in the petition are without any basis or understanding of the facts. KSRTC has an aging fleet with an average age of 10.16 years. In fact, during the lockdown, all the services, including special services operated by KSRTC have come to halt, except special services for working employees as directed by the Government. The situation has gone out of control of KSRTC and the financial situation has worsened. With WP(C): 15119/2022 -:22:- the financial aid from the Government of Kerala only, KSRTC has managed to provide salaries to all the employees. Due to the non-availability of spare parts including manpower during the core COVID-19 pandemic situation KSRTC has faced challenges in downtime maintenance of buses. However, with minimal manpower KSRTC has somehow managed to do some routine checkups like starting buses daily to avoid damage during the downtime. During the pandemic situation, KSRTC management has foresee that the normal operation of services may take a lot of time. The fleet strength of KSRTC in the pre-COVID-19 situation was 6202 numbers. During the COVID-19 pandemic situation, KSRTC management has decided to shift 1736 numbers of non- operative buses in various selected centers. All these buses are of ordinary class and KSRTC has classified the buses into "Road Worthy" and "To be scrapped". All the buses which fall under "To be scrapped" are very old and those buses which need heavy repair costs.
C. After the post COVID-19 pandemic situation, KSRTC has started releasing 816 nos of buses from the reserve pool in a phased manner based on the demand. This was a period of no revenue and due to the non-availability of parts and difficulty in finding funds for tires, batteries, paint, and other spares there has been a delay in the release of the buses from these centers. Due to scarcity of parts, KSRTC has used the parts removed from the scrapped and reserved pooled buses (Tyre, Battery..etc) to maintain the operating buses. Otherwise, the batteries and tyres would have been damaged if left idle in such a condition. KSRTC has taken all the possible steps for releasing the buses even during the severe crucial financial crisis. The photograph of KSRTC buses shown in Exhibit-P1 is taken during the COVID-19 pandemic period when KSRTC has stopped service due to lockdown. This situation changed after the lockdown. It is evident that KSRTC gradually increased the service operation based on the demand as per Table I. As per KMV Rules buses can be operated as a super class only for up to 5 years. Due to the shortage of new buses for super class service, later Government of Kerala extended the validity to seven years as per G.O.(P) WP(C): 15119/2022 -:23:- No.43/2019/Tran. dated 4th December, 2019. A true copy of the G.O.(P)No.43/2019/Tran dated 4 th December, 2019 is produced herewith and marked as Exhibit R2(A). D. In this COVID-19 pandemic situation, the majority of super class buses were not operated for more than one year and hence KSRTC requested the government of Kerala to extend the super class period of 704 buses to 9 years. On the basis of this, government of Kerala hes extended the permit validity of super class to 9 years as per G.0. (O)No.371/2021/Tran dated 22 October 2021. A true copy of the G.O. (O)No.371/2021/Tran dated 22 Octob produced herewith and marked as Exhibit R2(B) The KSRTC was not getting any funds HSD buses since 2017. To overcome the uncertainty and evaluate the market strategy of hiring the buses, KSRTC has decided to go FOTO replacing the old fleet of super-class ahead with a tender for getting buses from private operators on lease for super class services. The decision to invite tender was only a precautionary measure and further to meet the demand rose by Budget Tourism Cell of KSRTC, which operated 235 buses during the month of April, 2022.
E. It is further submitted that during the pre-COVID period, the Corporation was having 6202 buses and was operating 4336 schedules on an average daily and was carrying more than 28 lakh passengers every day. During the first lockdown period, all most all the buses were off the road, and even after the withdrawal of the lockdown, many buses were off the road. The Corporation could not use the air-conditioned buses due to the COVID protocol instructions being issued by the Health Department of the state as well as the Union Government. This restriction was applicable to the air- conditioned low-floor buses supplied under the JNNURM schemes of the Central Government. KSRTC has a total number of 219 air- conditioned buses as on 1st March, 2020. Out of the 190 low floor AC (JNNRUM) buses, only 75 are in the dock, including 38 buses that are permanently on the dock from 2018 onwards. As of now, 94 are in good condition and suitable for services and 21 buses require minor repairs to make them useful.WP(C): 15119/2022 -:24:-
F. It is further contended that the allegation that the steep fall in a number of transport buses in Kerala is helpful for aggressive contract carriages operating with the silent consent of police and motor vehicle department is not true. After relaxation in lockdown restrictions, there was only a gradual increase in demand. The public was reluctant to use the public transportation system in initial stages, especially after the first lockdown in 2020. As the demand gradually increased KSRTC also Increased the number of services. The media report shown in Exhibit -P5 shows there is a drop of about 4000 buses in the private operating sector. But, KSRTC has maintained the service of buses in those areas where public demand is more absorbing losses. KSRTC has taken steps to introduce new City Services which are become more helpful for the passengers with less ticket charges. KSRTC has not denied any financial aid from the Government of Kerala. In fact, KSRTC is using 116 new K-SWIFT buses in its fleet for super class service operation. It has helped to reduce the illegal service operation in the interstate and instate routes. The KIIFB has only provided funds through K- SWIFT for the implementation of an environment friendly passenger transportation system using clean fuels like CNG, LNG and Electricity. Hence, the KSRTC has decided to prepare the DPR and submit it after creating a new SPV as per KIIFB stipulation namely KSRTC-SWIFT. The funds received from the Government of Kerala are subjected to Auditing by AG (Audit) and apart from this, there is a separate monitoring committee to monitor the utilization of funds under various Government schemes. Therefore, it is irrelevant to say that nothing materialized.
17. Heard the learned counsel for the parties and perused the material available on record.
18. As per notification - G.O.(P) No.43/2019/Trans. Dated 04.12.2019 [Exhibit-R2(a)], Government, after examining the matter in detail, have decided to amend the Rule 260A of the Kerala Motor Vehicles Rules, 1989, WP(C): 15119/2022 -:25:- by allowing the stage carriages to operate as Luxury Service, Super Delux Service or Super Express Service from five years to seven years from the date of its registration. Rule 260A speaks about special provision applicable to a stage carriage permitted to be operated as certain classes of services, and it reads thus:
"260A. Special provision applicable to a stage carriage permitted to be operated as certain classes of services.- A stage carriage older than seven years from the date of its registration shall not be permitted to be operated as Fast Passenger Service, a Super Fast Service, a Luxury Service, a Super Delux Service or a Super Express Service."
19. Exhibit-R2(b) is the order in G.O.(Ord.) No.371/2021/Transport dated 29.01.2021 and it reads thus:
"GOVERNMENT OF KERALA Abstract TRANSPORT DEPARTMENT - PERMISSION HEREBY GRANTED TO KSRTC TO MAKE USE OF 704 SUPER CLASS BUSES AS SUPER CLASS BUSES TILL THEY BECOME 9 YEARS OLD -ORDERS ISSUED
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TRANSPORT (B) DEPARTMENT G.O.(Ord.)No.371/2021/TRANSPORT DATE: THIRUVANANTHAPURAM, 29/10/2021
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ORDER It is requested by the CMD, KSRTC that, in view of the fact that the 704 KSRTC Super Class KSRTC buses like Fast Passenger/Super Fast/Super Express/Super Delux/Premium A/C buses are completing its WP(C): 15119/2022 -:26:- permitted age limit of 7 years before 31.10.2021 and that because of the restrictions owing to COVID -19 the buses were not fully operated for 2 years and in such circumstances and in view of the school reopening and the commencement of Sabarimala Mahotsavam 2021- 22, to extend the tenure of those super class buses which are between the age of 6 to 9, to 9 years, considering the non-operative last 2 years.
The Government has considered the matter in detail and permission is hereby granted to use the 704 super class buses as super class buses till they become 9 years old.
As per the order of Governor Biju Prabhakar, Secretary"
20. In Guruvayur Devaswom Managing Committee & Anr. v.
C.K.Rajan & Others [(2003) 7 SCC 546], the Hon'ble Supreme Court has summarised the principles with respect to the filing of a Public Interest Litigation and they are reproduced:
"(i) The Court, in exercise of powers under Articles 32 and 226 of the Constitution of India, can entertain a petition, filed by any interested person in the welfare of the people, who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.
The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises. [See S.P. Gupta v. Union of India, People's Union for Democratic Rights v. Union of India [(1982) 2 SCC 494], Bandhua Mukti Morcha v. Union of India and Others [(1984) 3 SCC 161] and Janata Dal v. H.S.Chowdhary (1992) 4 SCC 305)] WP(C): 15119/2022 -:27:-
(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-a-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. [See Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi [(1978) 4 SCC 104] and Hussainara Khatoon and Others v. Home Secretary, State of Bihar (1980) 1 SCC 81)]
(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial. In Mrs. Maneka Sanjay Gandhi v. Rani Jethmalani (AIR 1979 SCC 468), it was held:
"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances." (See also Dwarka Prasad Agarwal (D) By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5 SCALE 138) WP(C): 15119/2022 -:28:-
(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333]
(v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition.
(vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504 and Forward Construction Co.
v. Prabhat Mandal (Regd.), Andheri and others, (1986) 1 SCC 100]
(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi v. Union of India and Others, 1989 Supp (1) SCC 251) WP(C): 15119/2022 -:29:-
(viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Others, [(1987) 1 SCC 227]).
(ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. (See Bandhua Mukti Morchai, Rakesh Chandra Narayan v. State of Bihar (1989) Suppl 1 SCC 644, and A.P. Pollution Control Board v. Prof. M.V. Nayudu, [(1999) 2 SCC
718)]. In Sachidanand Panday and Another v. State of West Bengal and others [(1987) 2 SCC 295], this Court held,-
"61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extent its jurisdiction under all available provisions for remedying the hardships and miseries of the need, the underdog and the neglected. I will be second to none in extending help when such is required. But this does mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self- imposed restraint on public interest litigants."
21. Further, in unreported judgment dated 30.06.2020 in B. Radhakrishna Menon v. State of Kerala and Ors. [W.P.(C) No.12109 of 2020], at paragraph 45, this Court held as under:
WP(C): 15119/2022 -:30:-"45. Placing reliance on the above decisions, the learned Senior Government Pleader submitted that a public interest writ petition which lacks bona fides, lack of particulars satisfying the requirements of a PIL, deserves to be dismissed with costs. Having regard to decisions considered in Mythri Residents Association v. Secretary, Tripunithura Municipality and Others, [2019 KHC 832], it has been summarised by the journal thus:
"(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter. (3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.
WP(C): 15119/2022 -:31:-(9) The misuse of public interest litigation is a serious matter of concern for the judicial process.
(10) Both this Court and the High Courts are flooded with litigations and are burdened by arrears.
(11) Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes.
(12) This Court has a long list of pending cases where the personal liberty of citizens is involved.
(13) Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. (14) It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. (15) This has spawned an industry of vested interests in litigation. (16) There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention. (17) Worse still, such petitions pose a grave danger to the credibility of the judicial process.
(18) This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law.
(19) This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services.
(20) Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office.
(21) Courts resolve disputes about legal rights and entitlements. (22) Courts protect the rule of law.
(23) There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space."
WP(C): 15119/2022 -:32:-22. On the aspect of a Public Interest Litigation purely based on newspaper reports, let us consider the following decisions:
(i) In Laxmi Raj Shetty and Another v. State of Tamil Nadu [(1988) 3 SCC 319], at paragraphs 25 and 26, the Hon'ble Supreme Court held as under:
"25. ............ We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspapers is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspapers report cannot be treated as proved of the facts reported therein.
26. It is now well settled that a statement of fact contained in a newspapers is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from Appellant 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balakrishna v. George Femandez and Ors. [(1969) 3 SCR 603]. There the question arose whether Shri George Femandez, the successful candidate returned to Parliament from the Bombay South Parliamentary Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said:
"A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may WP(C): 15119/2022 -:33:- be taken into account with other evidence if the other evidence is forcible."
We need not burden the judgment with many citations. There is nothing on record to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence of Appellant 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged."
(ii) In S.A. Khan v. Ch. Bhajan Lal and Another reported in (1993) 3 SCC 151: AIR 1993 SC 1348, at paragraph 22, the Hon'ble Supreme Court held as under:
"22. In the present case, no evidence has been let in proof of the statement of facts contained in the newspaper report. The absence of any denial by Ch. Bhajan Lal will not absolve the applicant from discharging his obligation of proving the statement of facts as appeared in the Press report. In fact, Ch. Bhajan Lal in his counter affidavit has taken a stand that the statements attributed to him based on the newspaper report are mere hearsay and cannot in law be relied upon for the purpose of initiating such proceedings. Therefore, in the absence of required legal proof, the Court will not be justified in issuing a suo motu notice for contempt of court."
(iii) In Ravinder Kumar Sharma v. The State of Assam and Ors., reported in AIR 1999 SC 3571, at paragraph 25, the Hon'ble Supreme Court held as under:
"25. Newspaper reports regarding the Central Government decision could not be any basis for the respondents to stop action under the Assam Control Order of 1961. The paper reports do not specifically refer to the Assam Control Order, 1961. In fact, Government of Assam itself was not prepared to act on the newspaper reports, as stated in its wireless message. Section 81 of the Evidence Act was relied upon for the appellant, in this behalf, to say that the newspaper reports were evidence and conveyed the necessary information to one and all including the respondents 2 and 3. But the presumption of genuineness attached under Section WP(C): 15119/2022 -:34:- 81 to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are merely hearsay Laxmi Raj Setty v. State of Tamil Nadu [1988CriLJ1783]."
(iv) In Vikas Vashishth v. Allahabad High Court reported in (2004) 13 SCC 485, the Hon'ble Supreme Court held as under:
"4. At the very outset, we put it to the petitioner that a bare perusal of the petition shows that it is based entirely on newspaper reports and asked him whether before filing the petition he has taken care to verify the facts personally. His answer is in the negative. In the writ petition all the 21 High Courts have been included as respondents and Union of India has also been impleaded as the 22nd respondent. We asked the petitioner what has provoked him to implead all the High Courts as respondents and he states that it is his apprehension that similar incidents may occur in other High Courts though there is no factual foundation for such appreciation.
5. After affording the full opportunity of hearing, we are satisfied that what purports to have been filed as a public interest litigation is nothing more than a "publicity interest litigation". It is writ large that it has been filed without any effort at verifying the facts by the petitioner personally."
(v) In Rohit Pandey v. Union of India reported in (2005) 13 SCC 702, Hon'ble Supreme Court held as under:
"1. This petition purporting to be in public interest has been filed by a member of the legal fraternity seeking directions against the respondents to hand over the investigation of the case pertaining to recovery of light machine gun, which is said to have been stolen from the army according to reports published in two newspapers, to the Central Bureau of Investigation for fair investigation to ensure that the real culprits who are behind such theft of army arms and ammunition endangering the integrity and sovereignty of the country may be brought to book and action may be taken against them in accordance with law. The only basis for the petitioner coming to this Court are two newspaper reports dated 25-1-2004, and the other dated 12-2- 2004. This petition was immediately filed on 16-2-2004 after the aforesaid second newspaper report appeared. On enquiry WP(C): 15119/2022 -:35:- from the learned counsel, we have learnt that the petitioner is a young advocate having been in practice for a year or two. The Union of India, the State of Uttar Pradesh and the Chief Minister of the State of Uttar Pradesh, have been arrayed as party respondents. In the newspaper reports, there is no allegation either against the Union of India or against the Chief Minister.
2. We expect that when such a petition is filed in public interest and particularly by a member of the legal profession, it would be filed with all seriousness and after doing the necessary homework and enquiry. If the petitioner is so public-spirited at such a young age as is so professed, the least one would expect is that an enquiry would be made from the authorities concerned as to the nature of investigation which may be going on before filing a petition that the investigation be conducted by the Central Bureau of Investigation. Admittedly, no such measures were taken by the petitioner. There is nothing in the petition as to what, in fact, prompted the petitioner to approach this Court within two-three days of the second publication dated 12-2-2004, in the newspaper Amar Ujala. Further, the State of Uttar Pradesh had filed its affidavit a year earlier i.e. on 7-10-2004, placing on record the steps taken against the accused persons, including the submission of the charge-sheet before the appropriate court. Despite one year having elapsed after the filing of the affidavit by the Special Secretary to the Home Department of the Government of Uttar Pradesh, nothing seems to have been done by the petitioner. The petitioner has not even controverted what is stated in the affidavit. Ordinarily, we would have dismissed such a misconceived petition with exemplary costs but considering that the petitioner is a young advocate, we feel that the ends of justice would be met and the necessary message conveyed if a token cost of rupees one thousand is imposed on the petitioner ."
(vi) In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra and Ors. reported in (2007) 14 SCC 281, the Hon'ble Supreme Court held as under:
"18. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v.WP(C): 15119/2022 -:36:-
Prabhu (1995) ILLJ 622 SC, and Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. [1994] 1 SCR 857. No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See Dr. B.K. Subbarao v. Mr. K. Parasaran (1996 CriLJ 3983)]. Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.
19. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. It is also noticed that petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts."
23. De hors the above on merits as regards Air Conditioned buses, which could not be used, KSRTC, in paragraphs (B) to (D) of their counter affidavit, has given reasons, which this Court cannot say, they are arbitrary or illegal. As regards the contention of the petitioner that 10 to WP(C): 15119/2022 -:37:- 16 years' old buses, which require replacement, KSRTC - the 3 rd respondent, has given valid reasons in paragraphs (E) to (F) of their counter affidavit.
24. Going through the counter affidavit filed on behalf of respondents 2 to 5, it could also be deduced that Kerala State Road Transport Corporation has formed an expert committee consisting of Assistant Works Manager (District Level), Regional Works Manager, Faculties/retired faculty from Government Engineer College/IHRD/LBS/ Mechanical Engineer from Motor Vehicles Department. Said committee has physically verified all the reserve pool buses and decided to scrap the same. On the basis of the expert committee report, KSRTC has removed the usable parts from the recommended buses and the remaining body parts are being auctioned through M/s. Metal Scrap Trade Corporation Limited. The photographs in Exhibit-P6 shows the KSRTC buses parked in Enchakkal yard during COVID-19 lockdown period. According to the 3 rd respondent, the photographs are only a static condition of COVID-19 pandemic on KSRTC services.
25. This is a factual dispute. It is trite law that disputed questions of fact or law cannot be adjudicated in writ proceedings. On the said aspect, reference can be made to a few decisions:
WP(C): 15119/2022 -:38:-(i) In Rourkela Shramik Sangh vs. Steel Authority of India Ltd. and Ors. [(2003) 4 SCC 317], the Hon'ble Supreme Court observed as under:
"24. Furthermore even otherwise, a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors."
(ii) In Himmat Singh v. State of Haryana and Ors. [(2006) 9 SCC 256] the Hon'ble Supreme Court while dealing with a finding of fact by the High Court on affidavit evidence, held as under:
"13................In the grounds of a writ petition only a question of law can be raised and not a statement of fact. No statement has been made in the body of the writ petition. The statement made in the said grounds was also not verified in accordance with the writ rules. Despite the same, as we have noticed hereinbefore, the Fifth Respondent in his affidavit denied or disputed the contents thereof. Whether the statement of the Appellant or the Fifth Respondent was correct or not could not ordinarily be decided in a writ proceeding. It is well known that in a writ petition ordinarily such a disputed question of fact should not be entertained. The High Court arrived at a finding of fact on the basis of affidavit evidence."
(iii) In Sanjay Sitaram Khemka v. State of Maharashtra and Others [(2006) 5 SCC 255], the Hon'ble Apex Court held as under:
"8. Having regard to the allegations and counter- allegations made by the parties before us, we are of the opinion that no relief can be granted to the petitioner in this petition. The writ petition has rightly been held by the High Court to be involving disputed questions of fact. The petitioner has several causes of action wherefor he is required to pursue specific remedies provided therefor in law."WP(C): 15119/2022 -:39:-
9. A writ petition, as has rightly been pointed out by the High Court, for grant of the said reliefs, was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of the controversy as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the petitioner at this stage. We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this Court in exercise of its jurisdiction under Article 136 of, the Constitution."
(iv) In Greater Mohali Area Development Authority and Ors. v. Manju Jain and Ors. [(2010) 9 SCC 157], the Hon'ble Apex Court held as under:
"25.................It is settled legal proposition that pure question of law can be raised at any time of the proceedings but a question of fact which requires investigation and inquiry, and for which no factual foundation has been laid by a party before the Court or Tribunal below, cannot be allowed to be agitated in the Writ Petition. If the Writ court for some compelling circumstances desires to entertain a new factual plea the court must give due opportunity to the opposite party to controvert the same and adduce the evidence to substantiate its pleadings. Thus, it is not permissible for the High Court to consider a new case on facts or mixed question of fact and law which was not the case of the parties before the Court or Tribunal below. (Vide State of U.P. v. Dr. Anupam Gupta: AIR 1992 SC 932; Ram Kumar Agrawal and Anr. v. Thawar Das (D) through Lrs. [(1999) 7 SCC 303]; Vasantha Viswanathan and Ors. v. V.K. Elayalwar and Ors. [(2001) 8 SCC 133]; Anup Kumar Kundu v. Sudip Charan Chakraborty [(2006) 6 SC 666]; Tirupati Jute Industries (P) Ltd. v. State of West Bengal [(2009) 14 SCC 406] and Sanghvi Reconditioners (P) Ltd. v. Union of India and Ors. [(2010) 2 SCC 733]."WP(C): 15119/2022 -:40:-
(v) In Popatrao Vyankatrao Patil v. The State of Maharashtra and Ors. [Civil Appeal No. 1600 of 2020 dated 14.02.2020], the Hon'ble Supreme Court observed as under:
"6. It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India."
26. The details of buses at Enchakkal yard are shown in table III, which reads as under:
Initial parked Scrap Buses Road worthy Remaining Buses buses Buses reserved at ark centre at Enchakkal Enchakkal 295 187 108 85 (all scrap buses)
27. It is also submitted that at present, there are only 85 numbers (73 JnNRUM and 12 RTC) of buses in Enchakkal yard, Trivandrum.
28. The counter affidavit makes it further clear that after the lockdown has been lifted by the Government, KSRTC has not observed any drastic increase in the demand for super-class buses. Now, KSRTC is operating all the super-class (Fast passenger and above) buses that were operated prior to the COVID-19 pandemic situation. KSRTC has increased WP(C): 15119/2022 -:41:- the schedule of operation as existed before COVID, and now, 3800 services on a average are operated daily. When the age of the bus increases, repair and maintenance costs will also increase.
29. From Table IV, stated in the counter affidavit, it is also evident that during the years 2020 and 2021, there were a less number of buses scrapped, due to the COVID-19 lockdown and because of this, the number of buses to be scrapped during 2022 has increased to 920 numbers.
Table-IV reads as under:
Table-IV Year Number of buses scrapped 2015 to 2016 578 Nos.
2016 to 2017 258 Nos.
2017 to 2018 566 Nos.
2018 to 2019 394 Nos.
2019 to 2020 126 Nos.
2020 to 2021 199 Nos
30. That apart, Table-V shows the number of buses still held in KSRTC, even after the withdrawal of 920 buses, which are aged more than 10 years. This includes 2300 BSII model buses, which are needed to be replaced. Table V reads thus:
AGE IN YEARS RTC BUSES
BS-II BUSES BS-III BUSES
WP(C): 15119/2022 -:42:-
10 TO 11 YEARS 157 180
11 TO 12 YEARS 586
12 TO 13 YEARS 583
13 TO 14 YEARS 667
14 TO 15 YEARS 295
15 YEARS AND ABOVE 12
TOTAL 2300 180
31. Going through the statements made in the counter affidavits filed on behalf of respondents 2 to 5, it could be deduced that there is no purposeful act on the side of the Government or KSRTC management to dump the buses and curtail the services to bring panic or difficulty to the public, as contended by the petitioner.
32. On the aspect as to when mandamus can be issued, we deem it fit to consider few decisions.
(i) In State of Kerala v. A. Lakshmi Kutty reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that, a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence WP(C): 15119/2022 -:43:- of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
(ii) In Comptroller and Auditor General of India v.
K.S.Jegannathan, reported in AIR 1987 SC 537 - (1986) 2 SCC 679, a Three-Judge Bench of the Hon'ble Apex Court referred to Halsbury's Laws of England 4th Edition, Vol. I, Paragraph 89, about the efficacy of mandamus:
"89. Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
(iii) In Raisa Begum v. State of U.P., reported in 1995 All.L.J. 534, the Allahabad High Court held that, certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.
(iv) Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or WP(C): 15119/2022 -:44:- inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.
(a) In State of U.P. and Ors. v. Harish Chandra and Ors., reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as under:
"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition...."
(b) In Union of India v. S.B. Vohra reported in (2004) 2 SCC 150, the Hon'ble Apex Court considered the said issue and held that,- 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so."
(c) In Oriental Bank of Commerce v. Sunder Lal Jain reported in (2008) 2 SCC 280, at paragraphs 11 and 12, the Hon'ble Apex Court held as follows:-
"11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
"Note 187.- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the WP(C): 15119/2022 -:45:- jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The WP(C): 15119/2022 -:46:- court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
Note 206.--......The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action."
12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others, AIR 1977 SC 2149, after referring to the earlier decisions in Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer, AIR 1966 SC 334; Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, AIR 1962 SC 1210, and Dr. Umakant Saran v. State of Bihar, AIR 1973 SC 964, this Court observed as follows in paragraph 15 of the reports :
"15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty WP(C): 15119/2022 -:47:- and the aggrieved party has a legal right under the statute to enforce its performance. .... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same."
(v) When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to WP(C): 15119/2022 -:48:- consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
(emphasis supplied)
33. Allegations made by the petitioner are substantially refuted by the respondents, with documents. Writ petition has been filed, without ascertaining the true facts. Further, no material has been produced by the petitioner, except some photographs and newspaper reports, in order to substantiate the contention as regards the mismanagement of KSRTC, relating to the vehicles dumped and turning to scrap.
34. Giving due consideration to the material on record, pleadings and submissions made, in particular, statements made in the counter affidavits filed by the respondents, and also the decisions extracted supra, we are of the view that the petitioner has not made out a case for issuance of any reliefs sought for. Writ petition is accordingly, dismissed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Krj WP(C): 15119/2022 -:49:- APPENDIX PETITIONER'S EXHIBITS:-
P1 COPY OF THE REPORT PUBLISHED IN MATHRUBHUMI DAILY 18.11.2021. P2 PHOTOGRAPH OF THE ABANDONED VEHICLES IN THEVARA YARD IN ERNAKULAM.
P3 PHOTOGRAPH OF THE ABANDONED VEHICLES IN ERNAKULAM YARD. P4 PHOTOGRAPH OF THE ABANDONED VEHICLES IN ERNAKULAM YARD. P5 COPY OF THE MEDIA REPORT RELATING TO THE FALLING NUMBER OF PUBLIC TRANSPORT SERVICE.
P6 PHOTOGRAPH PUBLISHED IN MALAYALA MANORAMA, DAILY DATED 6.2.2022 RELATING TO THE ABANDONED BUSES IN INCHACKAL YARD.
P7 COPY OF THE REPORT PUBLISHED IN KERALA KAUMUDI DATED 18.04.2022, NARRATING THE MISMANAGEMENT OF CORPORATION RELATING TO THE VEHICLES DUMPED AND TURNING IN TO SCRAP.
RESPONDENTS' EXHIBITS:
R-2(A) COPY OF THE G.O. (P)NO.43/2019/TRAN DATED 4TH DECEMBER 2019 R-2(B) COPY OF THE G.O. (O)NO.371/2021/TRAN DATED 22ND OCTOBER 2021 WITH ITS TRANSLATION.
//TRUE COPY// P.A. TO C.J.