K S ABRAHAM Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a petition under Art.226 of the Constitution, for quashing two schemes published under S.68C and 68D of the Motor Vehicles Act, 1939 or shortly, the Act, and the relative Government Orders. The second respondent, the Director of State Transport, Trivandrum, published a scheme, Ex. P-l, under S.68C of the Act in respect of the route Punalur-Pathanamthitta, on the 15th April 1958. The objections to it, of the petitioner, who had been operating motor bus service on a part of this route, were rejected by Government by order, Ex. P-3 dated the 9th August, 1958. The approved scheme. Ex. P-4, was then published pursuant to S.68D, on the 12th August, 1958. It may be mentioned, that the above route is in continuation of the route from Trivandrum to Punalur via, Ayoor and Kottarakara, and forms part of the entire route Trivandrum-Pathanamthitta shown in illustration, Ex. P7. Pursuant to the. approved scheme, the second respondent introduced Express bus service on the route Trivandrum-Pathanamthitta, on the 9th September, 1958, but replaced it afterwards by an Ordinary passenger Service on the 16th March 1959. With a view to introduce a deviation in part of the Trivandrum-Pathanamthitta route, on the Ayoor-Punalur section via, Anchal, without touching Kottarakara the second respondent published a scheme, Ext. P5, under S.68C of the Act, on the 30th December, 1958, the objections; of the petitioner to this, were rejected by Government on the 12th May, 1959, by order, Ex. P6. This petition is to quash Ex. P3, P4, P5 and P6 on the ground inter alia, that Ext. P3 was passed after a hearing by the Secretary to the Transport department, who therefore acted as Judge in his own cause, and that in both Exts. P4 and P5, the particulars of the nature of the services proposed to be rendered were not furnished as provided in S.68C of the Act.

(2.) At the hearing of this original petition before me, an objection was taken by the learned Government Pleader on behalf of the first respondent, the State of Kerala, and of the second respondent, that the petitioner is precluded by reason of his acquiescence, and of the delay in preferring this petition, from obtaining any relief in respect of Exts. P3 and P4, and that he has no locus standi to object to Ex. P5 and P6, not being affected by the proposed deviation in the route Ayoor-Punalur via, Anchal. In my opinion, the above objections on the ground of delay, and of the petitioners locus standi must prevail.

(3.) This petition was filed on the 5th June, 1959, more than nine months after the date of the publication of Ex. P4. Interference under Art.226 is always discretionary, and a writ will be refused, in all cases where the petitioner has not acted expeditiously, T.K. Vasudevan Pillai v. State, 1955 KLT 651 . Though it was observed in the case, Arthur Import and Export Co. v. Collector of Customs, 1958 KLT 130 = AIR 1958 Kerala 357, that it is in the discretion of the court to entertain a petition made beyond the conventional period permitted for filing a Civil Revision Petition, the ease also held, that Art.226 must be invoked at the earliest possible moment. In Raman Menon v. Cochin Devaswom Board, 1957 KLT 1082 and Lonappan v. The Nattika Firka Rural Cooperative Bank Ltd., 1957 KLT 56 , a delay of eight months in the former, and a delay of six months in the latter, were considered to be fatal. The explanation for the delay in the present case was, that so long as Express bus service was operated by the second respondent, the petitioner had no serious prejudice as stated in his affidavit; the averments in the affidavits of the petitioner and of an advocate were, that at the hearing on Ex. P1, the second respondent gave an undertaking to operate Express buses only averments which were denied by the second respondent in the counter affidavit. Assuming for the sake of argument, that the second respondent gave such an undertaking, the approved scheme, Ex. P4, is now being attacked as unconstitutional and void; Exs. P1 and P4 are sufficiently comprehensive to include any class of service Express or Ordinary. Even Ex. P3 did not limit the class of service to the undertaking of the second respondent, if any was given. It seems to me, that the petitioner has not therefore satisfactorily explained the delay. It is unnecessary to consider the further objection, that the petitioner, had acquiesced in Ex. P4, pursuant to which, the second respondent had been operating bus service from the 9th September 1958.