P K POULOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) In this batch of writ petitions the validity of the Government's notification G.O.(P) No. 19/94/PW and T, Public Works and Transport (M) Department dated 28-3-1994 issued as S.R.O. No. 364 of 1994, is challenged. Indifferent writ petitions slightly different prayers are made. But the main attack is against Ext. P10. The main reliefs prayed for are as follows : to issue a writ of certiorari to quash S.R.O No. 364 of 1994; to issue a writ of mandamus to allow the petitioners to operate services as fast passenger services in terms of valid permits or in forms of permits that are to be issued, collecting fares as prescribed in the fare revision without insisting upon the fulfilment of the conditions in Clause F of S. R. O. No. 364/94.

(2.) The historical background for this litigation has to be stated in brief. Originally private operators (petitioners) were not permitted to operate limited stop services, fast passenger services, fast passenger with limited stop services, super fast services, express services, super express services etc. Government reserved this right of running express service, fast passenger services etc., to fleet owners who are running a fleet of more than 150 stage carriages. It was exclusively reserved to the Kerala State Road Transport Corporation which was the only fleet operator with more than 150 stage carriages. That reservation was challenged in a batch of writ petitions and this Court by judgment dated 9-8-1989 in O.P. No. 10375/88 held that the scheme of the Motor Vehicles Act of 1939 does not provide for any exclusive privilege for the fleet owners to run the fast passenger services and that exclusive right conferred by a notification issued under Section 43(1)(i) cannot interfere with the scheme of the Act and that the definition of "fleet owner" in that notification dated 6-11-87 does not bar the right of the private operators to run fast passenger or express services. Subsequently after the new Motor Vehicles Act came into force on 1-7-1989 the writ appeal filed against that judgment was dismissed as not pressed. Subsequent to that litigation coming to close a number of private operators agitated for their right to run express services and fast passenger services and the State Transport Appellate Tribunal upheld their claim in a batch of appeals. Questioning the decision of the State Transport Appellate Tribunal the State Government of Kerala filed O.P. No. 731 of 1993 and other original petitions and they are still pending. In that original petition the State Government filed C.M.P. 'No'. 1377/1993 and sought stay of the judgment dated 18-11-1992 of the State Transport Appellate Tribunal. This Court refused to grant stay as prayed for. As the State was unable to obtain stay 'order in O. P. N.731 / 93 and thus prevent the private operators from operating fast passenger services and express services the State then came forward with an ingenious method to defeat the claims of the private operators from running fast passenger, limited stop fast passenger, express and super express services by issuing S.R.O. No. 364/94.On the pretext of revising the fares in exercise of it powers under Section 67 of the New Motor Vehicles Act, the State has imposed several onerous conditions which virtually make it impossible for the private operators to run the fast passenger, fast passenger limited stop and express services. By imposing several unworkable restrictions in paragraph F of the notification the Government virtually is trying to prevent the private operators from running the fast passenger and express services. Conditions (ii), (iii) and (iv) of Paragraph F are impossible of compliance. The net result of the notification is to exclude the petitioners from operating fast passenger and express services.

(3.) In this batch of writ petitions Sri P. Gopalakrishna Menon led the arguments and his arguments were adopted by the other petitioners and certain other learned advocates supplemented his arguments. Smt. Sumathi Dandapani and Sri K.V. Gopinathan Nair advanced additional argument to support the petitioners' claims. The sum and substance of the arguments can be briefly stated. The notification issued as S.R.O. No. 364/94 is one issued under S. 67(1) of the Motor Vehicles Act, 1988. That section only contemplates mere revision of fares and freights. The various conditions imposed by way of directions in the notification are outside the ambit of Section 67(1). Conditions (ii), (iii) and (iv) of Paragraph F of the notification are impossible of performance. No private operator who is anxious to run the fast passenger and express services can afford to provide advance reservation facilities of seven days reservation at both ends of the route and at all important stations on the route. Similarly no private operator can provide his own bus stations/ garages with retiring rooms, latrines, urinals separately for ladies and gents, refreshment stall and reservation centres at all the places of halting of the stage carriage. The notification also prohibits the operators from treating bus stations owned and provided by the local bodies as those provided by the private operators. Irrespective of the fleet strength they are also expected to keep a Reserve Bus as contemplated under Rule 182 of the Kerala Motor Vehicles Rules, 1989. It is also urged that under the guise of issuing directions under Section 67(1) the State is now trying to impose onerous conditions which are impossible of performance and it is also imposing conditions which are contrary to the provisions of the Motor Vehicles Act and various other statutes.