ORDER
D. Murugesan, J.
1. Since the issues raised in all these writ petitions are one and the same, they are taken up together for hearing and disposal by this common order.
2. In order to alleviate the traffic problems as well as the unmanageable situation prevailed in the then existing bus terminals in Esplanade, Basin Bridge, Broadway and MUC grounds, the Chennai Metropolitan Development Authority (hereinafter referred to as the 'CMDA'), was permitted to construct the Chennai Mofussial Bus Termimus (hereinafter referred to as the 'CMBT') at the periphery of the city along Jawaharlal Nehur Salai (Inner Ring Road) at Koyambedu. The funds for construction were raised by CMDA from HUDCO and TUFIDCO. The Member Secretary, CMDA, applied to the Government on 13.4.2002 for approval of a scheme for construction of a bus stand at Koyambedu under Rule 245 of the Tamil Nadu Motor Vehicles Rules, 1989 (hereinafter referred to as the 'Rules'). The shecme for construction of the public stand at T.S.No. 1/1, Block No.64 at Koyambedu, was approved by the Government. This bus stand was also notified in proceedings dated 15.11.2002 as 'Special Class Bus Stand' for a period of three years from 15.11.2002 to 14.11.2005 by the Regional Transport Authority in exercise of powers conferred under the above Rule. The Government Order and the subsequent proceedings of the Regional Transport Authority in establishing the CMBT for buses plied on the strength of stage carriage permits are not questioned in these writ petitions, as the petitioners are the operators of Omni buses operating the vehicles on the strength of contract carriage permits.
3. After the scheme for construction of CMBT was approved and the constructions were completed, the Member-Secretary, CMDA in his letter dated 7.1.2002 requested the Government for orders on the maintenance of CMBT and the related issues. While the Government issued orders in G.O.Ms. No. 208. Housing and Urban Development (U.D.3-1) Department dated 20.8.2002 as to the maintenance of the CMBT, in paragraph 3(d) and (e) had also directed as follows :
'(d) Three (3) acres of land near Koyambedu Wholesale market complex shall be allotted by Chennai Metropolitan Development Authority to operate Omni buses, and Chennai Metropolitan Development Authority should provide water, electricity, toilets, etc., and to collect Rs. 50 per bus per day as entry fee.
The Omni Buses should not be parked or operated in Chennai City other than Koyambedu Market Complex. Necessary instructions will be issued by Home and Transport Department separately.
(e) Buses from Southern Districts shall enter Chennai Mofussil Bus Terminus through Tambaram and Kathipara Junction. Buses from Western Districts may enter Chennai Mofussil Bus Terminus through EVR Salai and Koyambedu Commercial Complex Road so as to avoid congestion at the junction of EVR Salai and Jawaharlal Nehur Road, the traffic should be diverted through K.K. Nagar, Kaliamman Koil Road (Nesapakkam Road) by expanding the existing Kaliamman Koil Road after acquiring necessary land by Chennai Metropolitan Development Authority. All State Express Buses, Point to Point Buses and Omni Buses should use only Tambaram NH By-pass Road. The State Government will address the Central Government to exempt State Buses from payment of Toll by State Buses by using Tambaram NH By-pass. Necessary instruction will be issued separately by the Transport and the Home Department'.
The Commissioner of Police, Greater Chennai in his proceedings dated 16.11.2002 and the State Transport Authority, Chennai in his proceedings dated 25.11.2002, directed the operation of the South Bound Stage Carriage buses operated by private persons and Omni buses or other Contract Carriage buses to take the route via NH-45 Tambaram Erumbuliyur new bridge, NH By-pass road (200 feet road), NH-4 Maduravoyal Koyambedu Market Road and Nesapakkam road both for the onward and downward journey to CMBT, the West Bound Stage Carriage buses operated by private persons and Omni Buses or other Contract Carriage buses to take the route via NH-4 Koyambedu Market Road and Nesapakkam Road both for the onward and downward journey to CMBT and the North Bound Stage Carriage buses operated by private and Omni buses or other Contract Carriage buses to take the route via. NH 5, Inner Ring Road, Koyambedu Round about, NH-4, Koyambedu Market road and Nesapakam road both for the onward and downward journey to CMBT.
4. The petitioners are all operators of Omni buses, with valid permits to operate within the city, for State wide operation, All India permits issued by the Transport Authorities of Tamil Nadu to enable the operators to operate at least in minimum three States, All India permits issued by other States that are valid in the State of Tamil Nadu, permits to operate within the districts etc. The petitioners have questioned the impugned Government order firstly on the ground that the bus stand must be duly notified by the Transport Authority under Rule 245 of the Tamil Nadu Motor Vehicles Rules, 1989. In the absence of such notification by the Transport Authority viz., the Joint Transport Commissioner-cum-Regional Transport Authority, Ayanavaram, Chennai, the impugned order of the Government is illegal and is liable to be quashed. Secondly, there cannot be a total restriction for the Omni buses to enter into the city of Chennai, as by the nature of permits, the operations require pickup and dropout of passengers within the city. The passengers who have engaged the Omni buses may intend to go for hotels, temples, etc., situate within the city and hence, the movement of the Omni buses in the city cannot be restricted. Thirdly, in terms of the definition of Omni buses, which also includes Maxi Cabs, the restriction for entry into the city is imposed only on the Omni buses and not on the Maxi Cabs, would be discriminatory. Finally, even in respect of heavy vehicles, there is no total restriction, as they are allowed to enter into the city between 8.00 p.m. and 8.00 a.m. Whereas the operation of the Omni buses are totally restricted.
5. The impugned order is sought to be justified by the Government on the ground that the decision to provide a separate bus terminal for Omni buses was taken only to alleviate the existing traffic problems, to avoid traffic congestion and also to regulate the traffic within the city. The Government is empowered to take such decision in exercise of power under Section 115 and Rule 370 of the Act and Rules. Insofar as the challenge on the ground of discrimination, it is the stand of the Government that the movement of State Transport Corporation Buses (STC), State Express Transport Corporation Buses (SETC), other State Transport Corporation Buses, Stage Carriages operated by private persons and Omni buses or other Contract Carriage Buses which are running point to point for a distance of more than 100 kms to Chennai city on a daily trip basis or alternative day trip basis or daily more than one trip basis or a trip of specified fixed day or days of weekly or monthly basis, etc., are alone restricted in a specified route. Though the definition of Omni buses includes Maxi Cabs, in view of the maximum capacity of 13 passengers including the driver those vehicles are allowed to enter into the city, whereas the Omni buses in question have the capacity of more than 13 passengers. Insofar as the submission as to allowing the heavy vehicles between 8.00 p.m. and 8.00 a.m., it is stated that those vehicles were allowed in view of the necessity to reach the respective godowns to load and unload the goods and question of parking of those vehicles in the roads within the city does not arise and hence such permission cannot be equated to the restriction on Omni buses.
6. Article 19(1)(g) of the Constitution of India guarantees all citizens the right to practice any profession or to carry on any occupation, trade or business subject to reasonable restrictions imposed by the State under Article 19(6) of the Constitution of India. In order to liberalise the procedure for grant of permits to the extent that an intended operator can get permit irrespective of number of operators in the field, the Motor Vehicles Act, 1988 was enacted. The fundamental right under Article 19(1)(g) entitles any member of the public to carry on the business of transporting passenger with the aid of the vehicles. In this context, reference to the Constitution Bench judgment of the Apex Court in Saghir Ahmad v. State of U.P., : [1955]1SCR707 , is useful. In page 735 the Apex Court has held as follows :
'within the limits imposed by State regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in Article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under Clause (6) of that article'.
When the liberalisation policy of grant of permits came up for consideration, the Apex Court in Mithlesh Garg, etc., v. Union of India and Ors., : AIR1992SC443 , has also authoritatively ruled that it is a guaranteed right of every citizen whether rich or poor to take up and carry on, if he so desires, the motor transport business of course, subject to reasonable restrictions. The reasonable restrictions shall also not violate any of the provisions of the Act or the Rules made thereunder.
7. In exercise of powers under Section 96(xxi), the Government is empowered to make rules prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place. By virtue of the said power, the Tamil Nadu Motor Vehicle Rules, 1989 were made. Rule 245 contemplates a detailed procedure for provision of public stands for public service vehicles. The said rule applies only in a case where the local authority apply to the Regional Transport Authority for approval of any scheme for construction of a public stand for any class of public service vehicles. A detailed procedure for processing the application and the notification by the Regional Transport Authority concerned are set out in the Rule. An almost similar Rule 268 of the Madras Motor Vehicles Rules came up for consideration before a Constitution Bench of the Apex Court in T.B. labrahim, Proprietor, Bus Stand, Tanjore v. The Regional Transport Authority, Tanjore, : [1953]4SCR290 . The Apex Court has held that 'a duly notified stand must be one which is notified by the Transport Authority and by none other. This principle of law was again reiterated by a subsequent Constitution Bench of the Apex Court in Municipal Board, Pushkar v. State Transport Authority, Rajasthan and Ors., : AIR1965SC458 .
8. In view of the above authoritative pronouncements of the Apex Court, it is now well settled that in terms of Rule 245 of the Rules, the Local Authority must firstly apply to the Regional Transport Authority for approval of a scheme for construction of the bus stand. The Regional Transport Authority concerned shall approve the scheme. After construction, the Regional Transport Authority concerned must notify the bus stand. Though in the impugned order, the Government only directed the CMDA to allot three acres of land near Koyambedu Wholesale Market complex for operation of Omni buses, by the direction that the Omni buses should not be parked or operated in Chennai city other than Koyambedu Market complex, the earmarked place shall be considered only for use of Omni buses as a public stand. Insofar as the establishment of CMBT, the Regional Transport Authority has rightly notified the bus stand as a 'Special Class Bus Stand' in his proceedings dated 15.11.2002. Insofar as the bus stand for Omni buses, we find no request from the Member-Secretary, CMDA to Regional Transport Authority for approval of scheme for construction of bus stand and a notification by the Regional Transport Authority viz, the Joint Transport Commissioner-cum-Regional Transport Authority, Ayanavaram, Chennai.
9. Alter the impugned Government Order was passed, it appears that the Transport Commissioner in his letter dated 11.9.2002 called for a meeting to be held on 18.9.2002, wherein the President and Secretary of Tamil Nadu Omni Bus Owners' Association as well as one Thiru M. Panneerselvam, Proprietor of Omni bus also participated. The petitioners had objected to the total restrictions imposed on Omni Buses to enter into Chennai city. No final decision was taken in the said meeting and the meeting was adjourned to 7.10.2002. Thereafter, no such meeting was held, but the Regional Transport Authority, Chennai city had only notified the 'CMBT' as 'Special Class Bus Stand' in his proceedings dated 15.11.2002.
10. From the above proceedings, we are convinced that the Local authority had never made application to the Regional Transport Authority for approval of scheme for construction of bus stand for Omni buses and the bus stand was not notified under Rule 245 of the Rules. Rule 370 much relied upon by the respondents, relates only to the restriction of speed, weights' etc. The said rule does not relate to either approval of construction of a bus stand or the notification by the Regional Transport Authority. In the absence of compliance of Rule 245 the establishment of a bus stand for Omni buses in the Koyambedu Market Complex is illegal as the same is not in conformity with Rule 245 of the Rules. For the above reasons, we have no hesitation to hold that the impugned Government order and the subsequent proceedings directing the Omni bus operators only to pick up and dropout the passengers from the Koyambedu Wholesale Market complex is illegal.
11. Insofar as the restrictions imposed on the Omni buses from entering into Chennai city, we have already referred to the judgment of the Apex Court as to the liberalization policy in transport operations and the right of the operators to get permits to operate the vehicles subject to reasonable restrictions. There is no dispute that the petitioners are the contract carriage permit holder to operate Omni buses. An intending contract carriage operator makes an application under Section 73 of the Act to the Regional Transport Authority for grant of permit. The application shall contain the type and seating capacity of the vehicle, the area for which the permit is required and any other particulars that may be prescribed. Considering the application, the Regional Transport Authority may grant such permit under Sub-section (1) of Section 74. Proviso to Sub-section (1) of Section 74 mandates that no such permit shall be grant in respect of any area not specified in the application. By this proviso, it is implied that once the permit is granted, to operate the stage carriage in the area covered by the permit the operator is entitled to operate on the said area. Sub-section (2) of Section 74 relates to the conditions that the vehicle shall be used only for a specified period or a specified route or routes in the permit. Such conditions can be varied only by the Regional Transport Authority. Of course, the State Government is empowered to direct the State Transport Authority and the Regional Transport Authority to limit the number of contract carriages depending upon the number of vehicles already permitted, route conditions and other relevant matters. Such directions could be given only by a notification in the official gazette. An indepth reading of Section 74 makes it clear that so long as the contract carriage permit is in force and the Omni buses are operated, strictly in accordance with the conditions of permit, any deviation in the route would amount to variation of conditions of permit which would in turn result in the cancellation of permit. In this context, the reliance placed on Section 115 and Rule 370 is referable. The State Government or any authority authorized in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, may by notification in the official gazette prohibit or restrict subject to such exception and conditions as may be specified in the notification, the driving of motor vehicles or any of the specified class or description of motor vehicles. The learned Advocate General would contend that the power to pass impugned Government Order could be traced to Section 115 and Rule 370 of the Act and Rules. The power of the State Government or any authority authorized in this behalf by the State Government to prohibit or restrict the movement of the vehicle in the interest of public safety or convenience cannot be disputed. However, exercise of such power again should not be arbitrary and discriminatory.
12. Sub-Section (29) of Section 2 defines an 'Omni Bus' meaning any motor vehicle constructed or adopted to carry more than 6 persons excluding the driver. Sub-Section (22) of Section 2 defines a 'Maxi Cab' meaning any motor vehicle constructed or adopted to carry more than 6 passengers, but not more than 12 passengers, excluding the driver, for hire or reward. In the case of Omni buses, there is no restriction on maximum passengers except the minimum of 6 passengers, whereas there is a restriction of only 13 passengers including the driver in the case of Maxi cab. Both the Maxi cab and Omni bus are also known as contract carriages. Though the restriction is imposed for Omni buses to use only Tambaram National High-way By-pass, such restriction is not admittedly imposed in the case of Maxi Cab. That apart, the heavy vehicles were allowed to operate between 8.00 p.m. and 8.00 a.m. The President and the Secretary of the Tamil Nadu Omni Bus Operators' Association represented in the meeting held on 18.9.2002 to permit them to operate within the city between 5.00 p.m. and 5.00 a.m., we absolutely do not find any justification in imposing total restriction in the case of Omni buses operated by the petitioners, as the same is unreasonable, arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
13. How far the restrictions imposed on the petitioners from operating their vehicles within the Chennai city is reasonable and justifiable is a further matter for consideration. In the case of the city permit holders, the restrictions even from entering into the city would offend the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. Insofar as the other All India Permit holders, by the fact of the permit they can necessarily operate to the destination of the passengers' choice. When such restrictions are imposed, certainly, that would offend the right guaranteed under Article 19(1)(g) of the Constitution of India. Insofar as the operators, equally the right guaranteed for freedom of the movement of the passengers is also restricted. The imposition of a total restriction from entering into Chennai city in respect of All India permit holders is totally unreasonable and contrary to the permit conditions. For the same reason the contract carriage buses operating on the strength of state permits also cannot be restricted from entering into the city. In the common counter affidavit filed on behalf of the respondents, it is stated that a sample survey on the vehicular traffic on the high ways taken on 18.9.2000 and 19.9.2000 showed an average of 72,739 vehicles plying within the city. According to the respondents, around 500 Omni buses are plying. Compared to the total number of vehicles, movement of 500 numbers of Omni bus are negligible. When the Stage Carriage buses operated by the State Transport Undertakings and private operators are allowed to operate within the city at least upto Kathipara junction and then to terminate at CMBT and the heavy vehicles are allowed to enter into the city within 8.00 p.m. and 8.00 a.m., and other type of vehicles are allowed to enter the city, we find absolutely no reason as to when the Omni buses approximately numbering only 500, should be restricted even from entering into the city. For the above reasons, we find the restrictions imposed on the Omni buses operated on the strength of contract carriage permits from entering into the city is violative of Article 19(1)(g) of the Constitution of India as such restriction is unreasonable.
14. There is another side of the picture. Though we have held that the restrictions for omni buses even to enter into Chennai city would amount to unreasonable restrictions we would hasten to add that any restriction in regard to parking of the vehicles within the Chennai city except for picking up and dropping of passengers, cannot be said to be unreasonable, as such restriction would be in the interest of not only the public safety but also the convenience. There cannot be an element of unreasonableness attached to any restriction in regard to the parking of vehicles within the city in order to avoid the free flow of traffic, to avoid traffic congestion and also to the other users of the road. While quashing the impugned Government Order in regard to the construction of a bus stand at the Koyambedu Wholesale Market place and also the restrictions imposed on omni buses from entering into the Chennai City, we make it clear that no Omni buses of the petitioners shall be permanently parked on the road sides of the Chennai city except for stoppage of the buses for pick up and drop out of passengers.
15. For the above reasons, the impugned Government Order is quashed to the extent indicated and the writ petitions are allowed. No costs. Consequently, all the connected W.P.M.Ps. are closed.