IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 12132 of 2009(S) ---------------------------------- PETITIONER(S): --------------------- DEJO KAPPEN,MANAGING TRUSTEE, CENTRE FOR CONSUMER EDUCATION, (REG.NO.497/88),MAIN ROAD,PALA, KOTTAYAM DISTRICT. BY ADVS. SRI.SANTHOSH MATHEW & SRI.SATHISH NINAN RESPONDENT(S): ------------------------ 1. THE SECRETARY (RTO), REGIONAL TRANSPORT AUTHORITY, KOTTAYAM. 2. THE TRANSPORT SECRETARY, THIRUVANANTHAPURAM. 3. THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM. 4. THE DEPUTY TRANSPORT COMMISSIONER, MOTOR VEHICLES DEPT., CENTRAL ZONE, ERNAKULAM. 5. V.P.SUKUMARAN, VALIYAPARAMBIL, NADAKKAVU P.O., ERNAKULAM. 6. MARIYAMMA THOMAS, KUMBALAMTHANATHU HOUSE, AYARKUNNAM, KOTTAYAM. 7. BIJU LAL, ASSISTANT MOTOR VEHICLE INSPECTOR, R.T.O.OFFICE, ALLEPPEY. R1 TO R4 BY GOVERNMENT PLEADER SRI. NOBLE MATHEW. R5 & 6 BY ADV. SRI.P.DEEPAK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(c) No.12132 of 2009: APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the route map. Ext.P2: Photocopy of G.O.(P) No.19/94/PW & T dated 28.3.1994. Ext.P3: Photocopy of the judgment dt.28.10.1994 in O.P. No.5657 of 1994. Ext.P4: Photocopy of the order dt.28.1.1995 in W.A. No.1403 of 1994 and connected cases. Ext.P5: Photo copy of the judgment in O.P.No.731/93 dt. 21.11.1996 and connected cases. Ext.P6: Photocopy of the judgment in W.A. No.1976 of 1996 dated 4.4.1997. Ext.P7: Photo copy of the Amended Kerala Motor Vehicle Rules (SRO No.118/99) published in the Kerala Gazette dt.3.2.1999. Ext.P8: Photo copy of the judgment dt. 30.6.2003 in O.P.No.7211 and 8235 of 1999. Ext.P9: Photocopy of Draft notification No.6122/B1/2008/Tran. Ext.P10: Photocopy of the route enquiry report and sketch. Ext.P11: Photocopy of the sketch of the road and major main roads in Kottayam District. Ext.P12: Photographs of the Panchayat roads. Ext.P13: Photocopy of the judgment dt. 13.7.2007 in W.P.(C) No.14567 of 2007. Ext.P14: Photocopy of the proceedings of the R.T.A. Kottayam dated 7.12.2007. Ext.P15: Photocopy of the order dated 19.2.2008 of the STAT in M.V.A.A.No.91 and 93 of 2008. Ext.P16: Photocopy of the judgment dt. 16.2.2009 in W.P.(C) No.37228 of 2008. Ext.P17: Photocopy of the representation submitted by the petitioner on 19.2.2009. Ext.P18: Photocopy of the orders of the R.T.A., Idukki dt.25.11.2008 and the order passed by the STAT in MVARP 78 of 2008 setting aside the order of the RTA dt.25.11.2008 and the order passed in MVARP 21 of 2006. Ext.P19: Photocopy of the news item published in New Indian Express daily dated 1.4.2009. Ext.P20: Photocopy of the statement filed by the first respondent herein before this Hon'ble Court in W.A. No.849 of 2009. Ext.P21: Photo copy of the order of the first respondent dt. 2.6.2009. Respondent's Exhibits: Ext.R1(a): Copy of the route map proposed by the applicants. (True copy) K. BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------ W.P.(C) No.12132 of 2009 ------------------------------ Dated this, the 29th day of September, 2009 JUDGMENT Balakrishnan Nair, J. The petitioner is a public interest litigant. He feels aggrieved by the grant of permit to respondents 5 and 6 to operate on the routes which are unsuitable for the class of vehicles which they propose to operate. In the above background, the petitioner has filed the Writ Petition seeking the following reliefs: “1. issue a writ of mandamus or any other appropriate direction commanding the State Transport Authorities and State Transport Appellate Tribunal not to grant till the Government lay down the Rule and the eligibility of the applicants who can apply for such permits and standard and requirements of the vehicles which can be put in use for super deluxe service and also the average speed, running time, width of roads etc. through which WPC No.12132 of 2009 - 2 - the services could be operated which would ensure the safety of the public at large. 2. issue a writ of mandamus or any other appropriate writ, order or direction to the State Government to ensure that Super Class Services can be permitted to operate only through National Highways, State Highways and Major district roads which have 2 line road width etc. which permits the average speed of 50 & 40 KMS. 3. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the State Government to ensure that Super Deluxe permits are granted without affecting the availability of ordinary services which are relied on by the students and short distance commuters.” It is elementary that this Court cannot be issue any writ against a statutory authority restraining it from exercising its statutory duties and powers. Under the provisions of the Motor Vehicles Act, if an application for permit is submitted, the transport authority concerned is bound to consider it and pass orders thereon. If anybody challenges this order, the State Transport Appellate Authority is also bound to hear and decide WPC No.12132 of 2009 - 3 - that appeal. In appropriate cases, the Appellate Tribunal is duty bound to order grant of permit also. When the statutory authorities are discharging statutory functions, this Court cannot issue any omnibus order restraining them from discharging their statutory duties and functions. So, the first prayer fails. The prayers 2 and 3 are directions sought against the State Government. As per the provisions of the Motor Vehicles Act, 1988, the Government have no role in granting permits or controlling the operation of the vehicles. Specified authorities are entrusted with those duties. When we pointed out that under the Motor Vehicles Act, 1988, the Government do not have any duty referable to the prayers 2 and 3, the learned counsel for the petitioner brought to our notice Ext.P4 judgment of a Division Bench of this Court, wherein it was held as follows: “16. Government have not fixed any guidelines in the form of rules prescribing the requirements of vehicles to be used as Fast Passenger, Super Fast, Express, Super Express, Deluxe or Super Deluxe. A vehicle which can be granted ordinary permit can be given permit as WPC No.12132 of 2009 - 4 - Fast Passenger, Express etc. depending on the whims and fancies of the transport authority. This will lead to arbitrary decisions. As a result of this, the permit holders realize higher fare without providing any additional amenity to the travelling public. So, we consider it highly essential to direct the Government to fix the standard to be maintained by the vehicles which are to be granted the permits for plying as Fast Passenger, Super Fast, Express, etc. The transport system in the State is meant for the benefits and convenience of the public. The policy to grant permits liberally under the 1988 Act is one directed to achieve the said goal. If permits are granted to vehicles which are not having any additional facility than that required for getting a permit to ply as ordinary passenger vehicle and allow the permit holders to realize higher rates of fares, it will certainly undermine the above policy. Therefore, we direct the Government to come out with appropriate rules fixing the standard to be maintained by vehicles which are to be granted permits as Fast Passenger, Super Fast, Express, etc. The absence of such rule leads to arbitrary grant of such permits. Therefore, we think it proper to direct State Transport Authority, Regional Transport Authorities and the State Transport WPC No.12132 of 2009 - 5 - Appellate Tribunal not to grant permits for Fast Passenger, Super Fast, Express, Super Express, Deluxe or Super Deluxe till the Government lay down the standard and requirements of the vehicle which can be put in use as Fast Passenger, Super Fast, Express, Super Express, Deluxe or Super Deluxe. We do so.” Pursuant to the above quoted direction, the Government have framed Ext.P7 Rules. It is also pointed out that the definition of “fleet owner” in Ext.P7 has been struck down by this Court, as per Ext.P8 judgment. We notice that, regarding framing of rules, which is a legislative function, no court can issue a mandamus to the Government. (See, the decisions of the Apex Court in M/s.Narinder Chand Hem Raj v. Lt.Governor, Administrator, Union Territory, Himachal Pradesh AIR 1972 SC 2399 and several other decisions). The learned counsel for the petitioner submitted that he has got a right flowing from Ext.P4 judgment. If Ext.P4 is not properly implemented, and if the same gives rise to any cause of action to the petitioner, he may pursue that. Subject to WPC No.12132 of 2009 - 6 - this observation, this Writ Petition is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P.Bhavadasan, Judge. DK. (True copy)