R. Rajendra Babu, J.
O.P. No. 17712/2001 :
1. Petitioner K.T. Sureshan applied for four months temporary permit on the route Chaliam-Providence College a city permit as notified by the RTA, Kozhikode in the vacancy of stage carriage bearing Reg. No. KLZ 9659, having a valid regular permit till 16th June, 2000. The permit holder had not renewed the permit and hence there was vacancy for conducting service as a substitute one. Another operator also had applied for four months temporary permit on the above route. Both the applicationswere rejected by the RTA, Kozhikode as per Ext. P1 proceedings, dated 6th February 2001 holding that as per S.R.0.891/2000 the number of stage carriages in Kozhikode city had been limited to 400 and the above number of regular permits had already been exhausted. The petitioner filed this Original Petition challenging Ext. P-3 notification, i.e., S.R.O. 891/2000 issued by the Government under Section 71(3) of the Motor Vehicles Act (hereinafter referred to as 'the Act') limiting the number of permits, as ultra vires the provisions of Section 71(3) (a), (b) and (c) of the Act. It was further contended that the reservation of 40 permits in favour of the State Transport Undertaking was without jurisdiction and as such the above reservation was also liable to be quashed. Later, an additional prayer was made for quashing Ext. P2 notification stating that Ext.P3 notification was issued modifying Ext. P2 notification, i.e., S.R.O. 278/93, issued by the Government under Section 71(3) of the Act.
O.P. No. 31627/2001 :
2. Petitioner, one K.P. Ajith Kumar, filed an application for the grant of regular permit to operate on the route Meenchanda, Medical College, Feroke College (via) Civil Station and Malaparamba. Earlier, the third respondent, Ex-servicemen Cooperative Society was operating on the above said route and they had defaulted. The petitioner applied for regular permit with the same set of timings and initially the application was rejected by the RTA on 13th November, 2000 by Ext. P4 order. The petitioner challenged Ext. P4 order before the STAT in MVAA No. 437/2000 and the Tribunal by Ext. P5 order set aside Ext.P4 order of the RTA and held that the petitioner was entitled to the grant of permit. The matter was again placed.-before the RTA on 2nd March, 2001 and the application was again rejected by Ext. P6 order holding that the number of permits had been limited to 700 in the city of Kochi as per notification SRO 891/2000 and the number has already exhausted. The above order was challenged before the STAT in MVVAA No. 223/2001. By Ext. P9 order the STAT partly allowed the appeal. Aggrieved by the above order the petitioner filed this Original Petition for quashing Ext.P6 order of the RTA, Exts. P7 and P8 notifications (SRO 278/1993 and 891/2000 respectively) issued by the Government under Section 71(3) of the Act and also for quashing Ext.P9 order of the STAT.
3. The first respondent, State of Kerala, filed a counter in O.P. 17712/2001 contending that the Central Government as per notification No. S.O. 701(E), dated 12th September 1990 directed the State Government to limit the number of stage carriages operating in the city routes in the cities-of Kozhikode and Kochi. Accordingly, the Government issued Ext. P2 notification (SRO 278/93) limiting the number of stage carriages operating in the city routes of Kozhikode and Kochi. The total number of stage carriages operating in Kozhikode city was fixed at 1150 and in Kochi at 750 and 50 permits had been reserved for the State Transport Undertaking at Kozhikode and Kochi. Later, the District Road Safety Committee meeting held at Kozhikode on 7thDecember 1996 decided to request the Government to reduce the number of services in Kozhikode considering the road condition, the number of vehicles and all other relevant matte'rs. The matter was again considered by the R.T.A. in its meeting held on 7th April 1997 and decided to take up the matter with the State Transport Authority, Trivandrum and requested the Government to give appropriate action to reduce the number of stage carriages. Accordingly, the earlier notification was amended by reducing the number of stage carriages operating in the city limits of Kozhikode to 400 and 40 permits had been reserved for State Transport Undertaking. The State Government has the power under Section 71(3) of the Act to limit the number of permits having regard to the number of vehicles, road conditions and all other relevant matters and the notification had been issued complying with all the legal formalities and as such those notifications are not liable to be quashed.
4. The additional fourth respondent, the K.S.R.T.C. also filed a counter raising identical contentions as those raised by the first respondent State and prayed that the Original Petition is liable to be dismissed;
5. The third respondent in O.P. 31627/2001, the Ex-servicemen Co-operative Society, represented by its Secretary, filed a counter contending that the petition was not maintainable and was liable to be dismissed. It was contended that the city permit Meenchanda-Medical College stood in the name of the society and as it was valid even now no permit could be granted to the petitioner in its place. It was admitted that the vehicle of the society was garaged for major repairs and is expected to ply on the route with immediate effect and as such no permit can be granted in favour of the petitioner.
6. The learned counsel for the K.S.R.T.C. and also the learned Government Pleader submitted that the counter filed by them in the case O.P. 17712/2001 may be treated as the counter in the other case also. 'Heard Smt. Sumathi Dandapani, the learned counsel for the petitioners, Sri. James Koshy, the learned standing counsel for the K.S.R.T.C., Sri. P. Santhosh Kumar, the learned counsel for the Ex-servicemen Co-operative Society and the learned Government Pleader Smt. M.J. Rajasree.
7. The main relief prayed for in these Original Petitions was to quash Exts. P2 and P3, the two notifications issued by the Government under Section 71(3) of the Act limiting the number of stage carriages to be operated in the city limits of Kozhikode and Kochi. The first notification Ext. P2 (SRO 278/93) was dated 18th February, 1993 and the second notification Ext. P3 (SRO 891/2000) was dated 19th September, 2000. By Ext. P2 notification the number of stage carriage to be operated at Kozhikode was fixed as 1150 and out of which 50 permits were reserved to be operated by the State Transport Undertaking. By Ext. P3 notification, which is an amendment to Ext. P2 notification, ie., SRO 891/2000, the number of stage carriages to be operated inKozhikode city had been amended and reduced to 400 and 40 permits had been reserved for the State Transport Undertaking. The above notifications would reveal that out of the total number of permits 10 per cent had been reserved for SC/ST as provided under Section 71(3) (b) and (c) of the Act.
8. The main argument advanced by the learned counsel for the petitioners was that the reservation of permits in favour of the State Transport Undertaking was without any jurisdiction and S, 71(3) of the Act did not permit or authorise the Government to reserve any permit in favour of the State Transport Undertaking, though a priority had been provided under Section 71 (3)(d) of the Act. It was submitted that when the State Transport Undertaking files an application and when there is a rival applicant and all other conditions contemplated by the law and Rules are equal, the State Transport Undertaking will have the priority in getting the permit granted and beyond such priority, the law did not permit the State to reserve any permit in favour of the State Transport Undertaking. Hence the reservation of the permits in favour of the State Transport Undertaking as per Exts. P2 and P3 notifications are ultra vires the provisions of law and beyond the powers conferred on the State and hence Exts. P2 and P3 notifications are liable to be quashed. It was further argued that as per Ext. P2 notification the number of stage carriages to be operated in the city limits had been fixed and notified as 1150 and that was after considering the number of vehicles, the condition of the road and all other relevant matters and as such the subsequent reduction of the number of stage carriages to be operated in the city, by Ext. P3 notification was without any authority or sanction from the Central Government. It was further argued that Ext. P3 notification did not comply with the provisions of law as it did not specify the reservation of permits in favour of the SC/ST as contemplated by law (Section 71(3) (b) and (c) of the Act) and on the above grounds also Ext. P3 notification was liable to be quashed. The learned Government Pleader as well as the learned Standing Counsel for the K.S.R.T.C. submitted that both the notifications are strictly in accordance with the provisions of law and as such those notifications are not liable to be quashed. Section 71(3) of the Act reads as follows:
'71(3).
(a). The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population 'of not less than five lakhs.
(b) Where a number of stage carriages are fixed under Clause (a), the Government of the State shall reserve in the State certain percentage of stage carriage permits for the Scheduled Castes and Scheduled Tribes in the same ratio as in the case of appointments made by direct recruitment to public services in the State.
(c) Where the number of stage carriagesare fixed under Clause (a), the Regional Transport Authority shall reserve such number of permits for the Scheduled Castes and Scheduled Tribes as may be fixed by the State Government under Sub-clause (b).
(d) After reserving such number of permits as is referred to in Clause (c), the Regional Transport Authority shall in considering an application have regard to the following matters, namely:-
(i) financial stability of the applicant;
(ii) satisfactory performance as a stage carriage operator including payment of tax if the applicant is or has been an operator of stage carriage service; and
(iii) such other matters as may be prescribed by the State Government:
Provided that, other conditions being equal, preference shall be given to applications for permits from-
(i) State Transport Undertakings;
(ii) Co-operative Societies registered or deemed to have been registered under any enactment for the time being in force; or
(iii) ex-servicemen'.
The learned Government Pleader submitted that the Central Government had directed the State Government to limit the number of stage carriages to be operated in the city limits of Kozhikode and Kochi and on the basis of such direction Ext. P2 notification had been issued. It was further argued that as per Clauses (b) and (c) of Sub-section 3 of Section 71 of the Act, 10 per cent of the above number of stage carriages had been reserved for the SC/ST as per Ext. P2 notification and the reservation of 50 permits in favour of the State Transport Undertaking is only limiting the right of the K.S.R.T.C. to operate its service within the city limits. It was further submitted that by the above notification the right conferred by the statute to the State Transport Undertaking is limited so that the remaining permits can be allowed to the private operators and though it is mentioned as a reservation, in fact it is a restriction imposed on the number of permits to be issued to the State Transport Undertaking. It was further argued that the above direction in the notification has to be treated only as an order limiting the number of permits in favour of the State Transport Undertaking and not as reserving certain permits in favour of the K.S.R.T.C. Ext. P2 notification, SRO 278/93 reads as follows:
'GOVERNMENT OF KERALA
Public Works and Transport (M) Department
NOTIFICATION
G.O.(P)No. 12/93/P.W. and T. Thiruvananthapuram, 15th February 1993.
SRO. No. 278/93. Whereas the Central Government have by Notification G.O. 701(E), dated the 12th September, 1990 directed the State Government under Clause (a) of Sub-section (3) ofthe Section 71 of the Motor Vehicles Act, 1988 (59 of 1088) to direct the State Transport Authority and the Regional Transport Authorities concerned to limitby notification in the official gazette, the number of stage carriages operating as city services in the places in the State specified therein.
Now, therefore, in pursuance of the said direction, having regard to the number of vehicles operating in the cities and road conditions and other relevant matters, and in supersession of the Notification No. G.O.(P) 64/91, dated 30th August 1991 published as SRO No. 111.0/91 in the Gazette dated 30th August 1991 the Government of Kerala hereby direct the Regional Transport Authorises concerned to limit the number of stage carriages operating on the cily routes in the cities of Kozhikode and Kochi as fixed and specified in ihe table below:
TABLECityNumber of stage carriages
operated by State Transport
Undertaking (other than fast
passengers, express and
deluxe services)Number of stage
carriages
operated by othersTotal number
of stage
carriages(1)
1. Kozhikode
2. Kochi(2)
50
50(3)
1100
700(4)
1150
750
Ten per cent of the total number of permits in respect of stage carriages as fixed above shall stand reserved for Scheduled Caste and Scheduled Tribes and the quota so reserved shall be filled up by allotting one in every ten permits sanctioned, subject to the condition contained in the provision to Rule 146 of the Kerala Motor Vehicles Rules, 1989.
By order of the Governor,
N. cHANDRASEKHARAN NAIR,
Commissioner and Secretary to Government'.
A reading of Ext. P2 would reveal that the notification was issued on the directions of the Central Government as contemplated under Section 71(3)(a) of the Act and also complying with Section 71(3) (b) and (c) of the Act reserving certain percentage of permits for Scheduled Caste and Scheduled Tribe operators. S, 71(3) does not specifically authorise the State to reserve any permit for the State Transport Undertaking, though a priority is provided under Clause (d) of Sub-section 3 of Section 71 of the Act. The priority provided under Clause (d) of Sub-section 3 of Section 71 of the Act can be available only when the K.S.R.T.C. applies for permit and the conditions mentioned in the same Clause are equal. A preference shall be given to the State Transport Undertaking, only when the State Transport Undertaking files an application for operating its service in the city along with; private operators. When there is no application filed by the K.S.R.T.C., the question of priority does not arise. Section 71(3) of the Act does not authorise the State to reserve any permit in favour of the State Transport Undertaking and the reservationof 40 permits in favour of the State Transport Undertaking is not in accordance with any provisions under the Act, When there Was a specific provision in the same Section that a stipulated percentage of the permits shall be reserved for SC/ST and when there was no similar provision for reserving any permit for the State Transport Undertaking, but there was provision only for giving priority to the State Transport Undertaking, the reservation of permits for the State Transport Undertaking could not be held to be as authorised by law. When the law provided only a priority in the grant of permit, the reservation of 40 permits in favour of the State Transport Undertaking was not bas'ed on any provisions of law. The above reservation of permit for the State Transport Undertaking was beyond the powers conferred under Section 71(3) of the Act.
9. Chapter VI of the Act deals with special provisions relating to Transport Undertakings. Section 99 empowers the State Government to formulate and publish schemes for running of road transport services in any route or area by the State Road Transport Undertaking in exclusion of others complete or partial. It is settled law that when such schemes are published, no permit can be issued to any private operator except as provided under the scheme itself. Thus, the law empowered the State to publish such schemes for monopolising the operation of services on such notified routes or area. But so far as Section 71(3) of the Act was concerned, the law specifically granted a right of priority alone to the State Transport Undertaking. The reservation of certain permits in favour of State Transport Undertaking in Ext. P2 as well as in Ext. P3 notifications was not in accordance with law and was beyond the powers conferred under the Statute and was ultra vires of the powers and those clauses in Exts. P2 and P3 reserving the number of permits in favour of the State Transport Undertaking are liable to be quashed.
10. The learned Standing Counsel for the K.S.R.T.C. submitted that Sub-section 3 of Section 71 of the Act would permit the State Government to reserve any specified type of stage carriages for the operation in the city limits and the usage of such specified type would include the stage carriages owned by the State Transport Undertaking and as such the reservation of certain permits in favour of the State Transport Undertaking was in accordance with law. It was further argued that the stage carriage operated by the K.S.R.T.C. has to be treated as 'specified type' of stage carriages and as such the reservation of permits in favour of the K.S.R.T.C. or State Transport Undertaking would be in accordance with Section 71(3) of the Act. The learned counsel for the petitioners submitted that the specified type of vehicles mentioned in Section 71 of the Act is not relating to the stage carriages being operated by the K.S.R.T.C. or by the State Transport Undertaking, but it relates to the nature or type or model of vehicles. Reliance was placed on the decision of this Court in Antony v. R.T.A., Kottayam, 1960 KLJ 532, where this Court had considered the term 'vehicles of a specified type'. There it was held:
'An argument was advanced that the word 'lypes' cannot cover models, I do not see why it should not be accepted, if the word may be liberally interpreted. However, the words 'specified description' in Sub-section (3) are of sufficient amplitude, as to cover a direction of the kind made.'
The same approach was made by a Division Bench of this Court in Raghavan v. R.T.O., Kollam (2001 (2) KLT 209). There it was held:
'In the light of the above discussion, it has lo be held that the expression 'specified description' appearing in Section 72(2) of the Act has to be understood as taking in the model of the vehicle also with reference to its age.'
S. 74(3) of the Act empowers the State to restrict the number of contract carriages generally or of a specified type. In fact Section 74(3) of the Act is similar to Section 71(3) of the Act. Vehicles of a specified type mentioned in the above sections cannot be taken as vehicles owned by the State Transport Undertaking, when the right of preference in respect of the State Transport Undertaking is specifically dealt with in the same subsection. The vehicles of specified type mentioned therein can only be in respect of the nature or type or model of the vehicle and it can never be taken as the vehicle owned by a person or an undertaking. Hence, the above argument advanced by the learned Standing Counsel for the KSRTC cannot be accepted. The term specified type mentioned in Section 71 of the Act is in respect of the nature or type or model of the vehicles and not in respect of the vehicles owned and operated by the K.S.R.T.C.
11. The learned counsel for the petitioners submitted that Ext. P3 notification is liable to be quashed in toto as the number of stage carriages to be operated within the city limits of Kozhikode had been duly notified as 1150 as per Ext. P2 notification and the further reduction of the number of stage carriages to such a very low number of 400 was without any jurisdiction and without the permission from the Central Government as contemplated by law. The learned Government Pleader submitted that the District Road Safety Committee in its meeting held at Kozhikode on 7th December, 1996 had examined the situation again and decided to reduce the number of city services in Kozhikode city taking into consideration the enormous number of vehicles, the bad road condition and other relevant matters including the large number of traffic accidents. The learned Government Pleader further submitted that Ext. P3 notification was issued only in modification of Ext. P2 notification reducing the number of permits in the city of Kozhikode and in view of Section 21 of the General Clauses Act, the power to issue a notification would include the power to amend the same and as such the State was fully competent to issue Ext.P3 notification. Section 21 of the General Clauses Act reads:
'Power to issue, to include power to add, to amend, vary or rescind, notifications, orders, rules or bye-laws. Where, by any (Central Act) or Regulation, a power to (issuenotifications) orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any (notifications), orders, rule or bye-laws so (issued).'
Ext. P2 notification was issued by the Government in accordance with the direction of the Central Government. Ext. P3 notification is only an amendment to Ext. P2 notification reducing the number of permits to be issued in the city limits. The provision in Ext. P2 regarding the reservation of 10 per cent of the permits in favour of SC/ST operators will remain in force without any modification, though it is not specifically included in Ext P3. In view of Section 21 of the General Clauses Act the amendment to the earlier notification can be made without any specific direction from the Central Government regarding the amendment. The power conferred by the Central Government for the issue of Ext. P2 notification would include the power for the issue of Ext.P3 notification, amending Ext.P2 which was issued on the direction from the Central Government. In view of Section 21 of the General Clauses Act, Ext. P3 notification also was issued on proper authority and it cannot be challenged on the ground that no separate sanction or direction has been obtained from the Central Government. Hence, the above argument advanced by the learned Counsel for the petitioners cannot be accepted.
12. As I have already found that the clause providing a specified number of permits in favour of the State Transport Undertaking in Exts. P2 and P3 notifications is ultra vires, those provisions reserving permits in favour of the State Transport Undertaking in Exts. P2 and P3 notifications shall stand quashed. Hence, the applications filed by the petitioners for the grant of permits will have to be reconsidered.
13. The STAT as per Ext. P9 order dated 13th August 2001 issued the followingdirections:
'I make it clear that the R.T.A. must first of all specify the criteria on the basis, of which a city route is to be identified. This shall be done after hearing alt the appellants and any other interested persons, after giving prior notice to all concerned. After identifying such criteria, the R.T.A. must prepare a fresh list of city route permits already granted till the date of S.R.O. No. 891/2000(19th September, 2000). All grants made subsequently will have to be reconsidered in accordance with law. The R.T.A. must prepare a statement as shown in appendix II showing the city permits, which existed on 19th September, 2000 as also those issued thereafter.
It is further directed that until fresh orders are passed in the matter as directed above, no fresh regular city permits shall be issued to any applicant by the R.T.A.'
The R.T.A. was directed to define the city routes and till city routes are defined the authorities were directed not to issue fresh permits also. The Government h'ad already defined the city or town services by an amendment to the Kerala Motor VehiclesRules by S.R.O. 891/2000. When once the State had defined the city or town services amending the Rules, the R.T.A. has no authority to define the same. In fact the above directions issued by the STAT is illegal and as such the above directions are liable to be set aside. It was submitted that the above notification defining the city services had been stayed by this Court. When the implementation of the above amended provisions has been stayed by this Court, the R.T.A. has to rely on the procedure or the norms adopted earlier for granting the city permits. When once the city services or town services had been defined by the State by incorporating an amendment to the Rules, the R.T.A. has no jurisdiction to define the services and as such the directions given by the STAT shall stand quashed.
In the result, both these Original Petitions are allowed partly. The reservation of permits as 50 and 40 in favour of the State Transport Undertaking in Exts. P2 and P3 notifications issued by the Government, i.e., S.R.O. Nos. 278/1993 and 891/2000 respectively shall stand quashed. In all other respects both the notifications are in accordance with law and are valid. The R.T.A. shall reconsider the applications put forward by the petitioners for the grant of regular permit and those shall be disposed of in accordance with law as expeditiously as possible. So far as O.P. No. 31627/2001 is concerned, the claim of the third respondent also shall be considered in accordance with Clause (d) of Sub-section 3 of Section 71 of the Act.