Kerala High Court
The Regional Transport Authority vs Chelsia Theresa George on 24 September, 2020
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 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942
W.A.No.1054 OF 2020
AGAINST THE JUDGMENT IN WP(C)32405/2019(A) OF HIGH COURT OF
KERALA DATED 29.11.2019
APPELLANTS/RESPONDENTS 1 AND 2 IN WPC:
1 THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM
REPRESENTED BY ITS SECRETARY, 2ND FLOOR,
CIVIL STATION, KAKKANAD, THRIKKAKKARA P. O.,
ERNAKULAM - 682 030.
2 THE SECRETARY,
REGIONAL TRANSPORT AUTHORITY, 2ND FLOOR,
CIVIL STATION, KAKKANAD, THRIKKAKKARA P. O.,
ERNAKULAM - 682 030.
BY GOVERNMENT PLEADER SRI.P.SANTHOSH KUMAR
RESPONDENTS/PETITIONERS IN WPC:
1 CHELSIA THERESA GEORGE, AGED 21 YEARS
D/O. LATE GEORGE CHERIYAN, PANACHIKALAYIL HOUSE,
VETTIMUGAL P. O., ETTUMANOOR, KOTTAYAM 686 631.
2 SHAJI KURUVILA, MONUVILLA, VADAVATHOOR P. O.,
KOTTAYAM - 686 010.
R1-2 BY ADV. SRI.G.PRABHAKARAN
R1-2 BY ADV. SRI.O.D.SIVADAS
R1-2 BY ADV. SMT.P.ASHA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.1054 OF 2020
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JUDGMENT
Dated this the 24th day of September 2020 S.MANIKUMAR, C.J.
Instant writ appeal is filed challenging the judgment dated 29.11.2019 in W.P.(C)No.32405 of 2019. Appellants herein are the respondents in the writ petition and respondents herein are the petitioners in the writ petition. Impugned judgment reads as follows:
"The petitioners' application for renewal of regular permit has been adjourned by directing the petitioners to file an application for variation of permit by restricting the route length up to 140 Kms. In fact, such restriction has been interfered by the Division Bench of this Court in Kerala State Road Transport Corporation V. Saju Varkey in [2018(4) KHC 617].
2. In the light of above, the application shall be considered without insisting for restriction up to 140 Kms. The application shall be considered in the next meeting.
This writ petition is disposed of as above."
2. Mr.P.Santhosh Kumar, Special Government Pleader, appearing for the appellants submitted that the direction of the writ court to consider the applications for renewal of permits without restricting the route length to 140 km. is unsustainable. Moreover, Government has now issued G.O. (MS)No.22/2020/Trans. dated 1.7.2020 withdrawing G.O.(MS)No. 45/15/ Trans. dated 20.8.2015. Since G.O.(MS)No.45/15/Trans. dated 20.8.2015 is WA.No.1054 OF 2020 :: 3 ::
withdrawn, the writ petitioners are not entitled to get the renewal of their permits on the route exceeding 140 km. It is submitted that necessarily they have to limit the route length to 140 km. The appellants are bound by the Government Order dated 1.7.2020.
3. G.O.(MS)No.22/2020/TRANS dated 1st July, 2020 reads as under:
GOVERNMENT OF KERALA Abstract Transport Department - Issue and renewal of permits to the Private stage carriage operators - G.O.(MS)No.45/2015/Tran Dated 20/08/2015 - Cancelled - Orders issued.
DEPARTMENT G.O.(MS)No.22/2020/TRANS Dated,Thiruvananthapuram, 01/07/2020 Read: G.O.(MS)No.45/2015/Tran dated 20.08.2015.
ORDER As per G.O.(P)No.73/2013/Tran dated 16/07/2013 published as SRO No.555/2013 Government of Kerala have issued a scheme for the operation of Super Class services exclusively for Kerala State Road Transport Corporation u/s. 100 (2) of Motor Vehicle Act, 1988. As per the Scheme Fast Passenger, Super Fast Services, Super Deluxe Services and other Super Class services to be run and operated in the State of Kerala exclusively by the Kerala State Road Transport Corporation. As per clause 3. of the Notification, permit issued in the private sector on or before the date of notification shall be allowed to continue till the date of expiry of the respective permits, thereafter no permit shall be renewed or no regular/temporary permit shall be issued. The above scheme was challenged by the private operators before WA.No.1054 OF 2020 :: 4 ::
the Hon'ble High Court of Kerala and the Writ Petitions were dismissed in Kerala State Limited Stop/Stage Carriage Operators Association Vs. Government of Kerala 2014 (2) KLT 135 against which private operators filed Writ Appeal 661/2014 and connected case before the Hon'ble High Court and stay was not granted. The Kerala State Road Transport Corporation had started about 240 number of services in the place of private operators which were being operators as Superclass service, consequent of the takeover of these permits to many private stage carriage permits were rejected by the Transport Authorities on the basis of Clause (4) of the SRO No.608/2009 and Rule 2(oa) of the Kerala Motor Vehicle Rule 1989. In the above circumstances, private operators approached the Government, and the Government of Kerala issued G.O.(MS)No.45/2015/Tran. Dated 20.08.2015 by which it was directed to issue permit as Ordinary Limited Stop services to those private stage carriage operators who were operating Fast Passenger and other Super Class services. The above said Government Order was only a temporary measure, and as per the order itself Transport Corporation were required to forward necessary proposal for amending the scheme and Kerala Motor Vehicles Rules. Subsequently the Kerala Motor Vehicles Rules was amended. Rule 2(oa) was incorporated giving definition to Ordinary Limited Stop service with a prescription of maximum 140 K.M. G.O.(P)No.45/2015/Tran dated 20.08.2015 was issued subject to the final decision of the cases pending before the Hon'ble High Court at that time. Subsequently, such cases were dismissed by the Hon'ble High Court in Mohan Kumar Vs. Government of Kerala and another, reported in 2016 (2) KLT 963. Therefore, the private operators have no right to continue to operate on the routes having route length above 140 Kms. WA.No.1054 OF 2020 :: 5 ::
Government have examined the matter in detail. Right of STU and private operators have to be governed by the Scheme which is prevailing and operating at any point of time. G.O. (P)No.45/2015/Tran dated 20.08.2015 is not in consonance with statutory provisions of Motor Vehicles Act 1988, read with Clause
(d) of Rule 246 of Kerala Motor Vehicles Rules 1989. The above G.O. cannot prevail over or co-exist with statutory scheme and Rule.
In the circumstances, Government consider it appropriate to withdraw G.O.(P)No.45/2015/Tran dated 20.08.2015 read above and it is here by withdrawn with immediate effect.
(By order of the Governor) K.R.JYOTHILAL PRINCIPAL SECRETARY.
4. G.O.(MS)No.45/2015/Tran dated 20th August, 2015 reads as under:
GOVERNMENT OF KERALA Abstract Transport Department - Scheme notified as SRO No. 608/2009 and SRO No.555/2013 - Issue and renewal of permits to the Private Stage Carriage Operators - Orders issued.
TRANSPORT (B) DEPARTMENT G.O.(MS)No.45/2015/Tran Dated, Thiruvananthapuram, 20/08/2015.
ORDER As per G.O.(P)No.73/2013/Tran dated 16/07/2013 issued under SRO No.555/2013 Government approved a scheme specifying that fact passenger services, Super Fast Services, Super Express Services, Super Deluxe Services and Luxury Services should be run and operated by the STU, by invoking the WA.No.1054 OF 2020 :: 6 ::
powers conferred by sub-section (2) and (3) of section 100 of the Motor Vehicle Act, 1988. Similarly invoking the above powers Government approved a scheme as per GO(P) 42/09/Trans dated 14/07/2009 and issued as SRO No.608/2009 stipulating that the passenger road transport service through 31 routes in the State should be operated by the State Transport Undertaking. Challenging the above scheme, a number of WP(C)s were filed before the Hon'ble Apex Court. In respect of the scheme notified under SRO No.608/2009, eventhough the Hon'ble High Court stayed the operation of clause 4 of the scheme the Hon'ble Court upheld the scheme in the judgment dated 10/04/2015 in WP(C)No.14793/2006, WP(C)No.20520/2009 and connected cases by dismissing the WP(C)s. Likewise the Hon'ble High Court upheld the scheme notified under SRO No.555/2013 in WP(C)No.18959/2013 and connected cases.
The WA filed against the said judgment is pending before the Hon'ble High Court.
By virtue of the above schemes and in accordance with the conditions stipulated in the respective scheme KSRTC applied for permits which were being operated by the private operators. Consequent on the take over of these permits by the KSRTC so many private stage carriages became off road and a crisis emanated in the stage carriage operation sector. This emerged as a vital issue against the survival of the workers employed in their buses as well as the owners who had made huge investment and were subjected to heavy liabilities in various banks and other financial institutions for the procurement and operation of the buses.
The rejection of permits to the above category of stage carriages and the withdrawal of such buses operated by the private stage carriage operators also caused impediments to the travel facilities of the public at large. Representations have also WA.No.1054 OF 2020 :: 7 ::
been received in Government from various quarters urging significant action to solve this complex issue.
Having regard to the above situation and the impending deadlock in the stage carriage operation sector due to the total withdrawal of the private stage carriages from the notified routes and areas Government have examined the matter in its entirety and find it expedient to introduce certain measures as a policy decision of the Government. Accordingly the following orders are issued:
1. The Scheme notified as per SRO No.555/2013 shall remain as such without any modification.
2. The Regional Transport Authorities will issue Ordinary Limited Stop Service permits to those private stage carriages which had been operated as higher class service such as Fast Passenger, Super Fast services etc. and the permits of which were subsequently rejected by the Regional Transport Authorities as a result of coming into the effect of the scheme notified as SRO No.555/2013. The Regional Transport Authorities will also issue ordinary limited stop service permits to those stage carriages the permits of which are liable to be rejected by the Regional Transport Authorities consequent on the coming into being of the scheme notified as SRO No.555/2013.
3. Students will be eligible for concession journey in all the ordinary limited stop services also subject to the other conditions stipulated for granting the concession journey.
4. In all the stage carriages GPS will be introduced to ensure that they are operated strictly in accordance with the permit conditions. The Motor Vehicles Department will take immediate action to implement the scheme.
5. The STA will issue appropriate orders on the age of the buses for being operated as ordinary limited stop services.
WA.No.1054 OF 2020 :: 8 ::
6. Appropriate timing will be granted by the RTAs for the operation of the ordinary limited stop services within a period of 15 days and upto the above period of 15 days the existing timings will be in force.
7. The Regional Transport Authorities will issue Ordinary Limited Stop Service permits to all the existing higher class services operated by the private operators in the routes covered under SRO No.608/09. But those permits which are being operated as ordinary service and ordinary limited stop service shall be allowed to continue as such in the above routes.
8. Notwithstanding anything contained in clause 4 of SRO No.608/2009 or rule 2(oa) of the Kerala Motor Vehicles Rules 1989, the Regional Transport Authorities will issue ordinary limited stop service permits to those private operators whose permits were rejected by the Regional Transport Authorities consequent to the scheme notified as per SRO No.555/2013.
9. The Transport Commissioner and the Chairman & Managing Director, KSRTC will forward necessary proposal for amending clause 4 of SRO No.608/2009 as well as the KMV Rules 1989 within two weeks.
These orders will be subject to the final decision in the cases pending before the Hon'ble Supreme Court and Hon'ble High Court.
By Order of the Governor, Dr.V.M.GOPALA MENON, Secretary to Government.
5. Attention of this court has been drawn to the Government Orders issued periodically, produced along with the memo filed by the Special WA.No.1054 OF 2020 :: 9 ::
Government Pleader dated 9.9.20. Reliance has also been placed on the following judgments in Mohankumar v. Government of Kerala reported in 2016 (2) KLT 963; T.Mohammed v. Secy. R.T.A., Malappuram and others reported in 1993 (1) KLJ 750; Gajraj Singh and others v. State Transport Appellate Tribunal and others reported in (1997) 1 SCC 650;
Firoz v. R.T.A. Malappuram reported in 1997 (2) KLT 110; Kerala State Road Transport Corporation v. Saju Varkey and others reported in 2018 (4) KHC 617 (DB), for reversal of the impugned judgment made in the writ petition.
6. Mr.O.D.Sivadas, learned counsel for the respondent submitted that G.O.(MS)No.22/2020/TRANS dated, 1st July 2020 has been challenged by the respondent in a separate writ petition. He further submitted that W.A.No.1054 of 2020 can be allowed and that the impugned judgment can be set aside with a direction to the writ court to adjudge the correctness of Government Order.
7. In as much as the learned counsel for the respodent has no objection for setting aside the impunged judgment in W.P.(C)No.32405 of 2019 dated 29.11.2019, there is no need for this court to advert to the issues raised in the writ appeal.
8. Adverting to the contentions raised in the Writ Appeal and the supporting documents filed namely, G.O.(MS)No.22/2020/TRANS dated 1st July, 2020 and G.O.(MS)No.45/2015/Tran dated, 20th August, 2015, any discussion on the effect of the Government Orders stated supra and finding, if any, WA.No.1054 OF 2020 :: 10 ::
would have impact on the pending writ petition filed challenging the above said Government Orders. Thus placing on record the submission of the learned counsel for the respondent, impugned judgment in W.P.(C)32405 of 2019 is set aside.
Writ appeal is allowed.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P. CHALY JUDGE jes WA.No.1054 OF 2020 :: 11 ::
APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE I TRUE COPY OF THE GO(MS) NO.22/2020/TRANS. DATED 01.07.2020.
ANNEXURE II TRUE COPY OF GO(P)NO.73/13/TRANS. DATED 16.7.2013.
ANNEXURE III TRUE COPY OF GO(MS)NO.45/15/TRANS. DATED 20.8.2015.
ANNEXURE IV TRUE COPY OF GO(P)NO.42/09/TRANS. DATED 14.7.2009.
ANNEXURE V TRUE COPY OF GO(P)NO.06/17/TRANS. DATED 15.3.2017.
ANNEXURE VI TRUE COPY OF DRAFT NOTIFICATION NO.12878/B1/2015/TRAN DATED 8.2.2016 ANNEXURE VII TRUE COPY OF THE FINAL NOTIFICATION PUBLISHED AS PER GO(P)NO.08/17/TRANS. DATED 23.3.2017.
// TRUE COPY // P.S. TO JUDGE