IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 WP(C).No. 28524 of 2011(M) ------------------------------------ PETITIONER(S): ---------------------- MATHEW SCARIA, S/O.SCARIA, PUTHIYAPARAMBIL HOUSE, EZHUKUMVAYAL. BY ADVS. SRI.K.V.GOPINATHAN NAIR SMT.G.CHITRA RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA REPRESENTED BY THE HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE SUB INSPECTOR OF POLICE, NEDUMKANDAM - 685 553. 3. THE DEPUTY SUPERINTENDENT OF POLICE, KATTAPPANA - 685 508. 4. K.C.JOSEPH, KALATHIKUNNEL HOUSE, EZHUKUMVAYAL 685 553. 5. JOSEKUTTY @ JOSEKUTTY NIRAPPEL, BHAGAVATHY PARAMBIL, EZHUKUMVAYAL 685 553. 6. SABU, MANIMALAKUNNEL HOUSE, EZHUKUMVAYAL 685 553. ADV. SRI.P.DEEPAK FOR R4-6 R1 TO R3 BY Sr. GOVERNMENT PLEADER M.K. ABOOBACKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dlk WP(C).No. 28524 of 2011(M) APPENDIX PETITIONER(S) EXHIBITS EXT.P-1 TRUE COPY OF THE REGULAR PERMIT ISSUED TO STAGE CARRIAGE KL-37/1039 ISSUED ON 12.12.2006 EXT.P-2 TRUE COPY OF THE REGULAR PERMIT ISSUED TO STAGE CARRIAGE KL-37A 5962 ISSUED ON 10.10.2011 EXT.P-3 ROUGH SKETCH OF THE ROUTE. EXT.P-4 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 2 AND 3 DATED 21.10.2011 RESPONDENTS' EXHIBITS : NIL //TRUE COPY/ P.A. TO JUDGE. dlk PIUS C. KURIAKOSE & K.HARILAL,JJ. ------------------------------------------------- W.P.(c)No.28524 of 2011 ------------------------------------- Dated this the 15th day of December, 2011 JUDGMENT K.HARILAL,J The petitioner is the permit holder of two stage carriages bearing Nos.KL-37/1039 and KL-37/A 5962 operating on the route Cumbummettu-Kattappana touching Nedumkandam and Nedumkandam-Kaattappana via.Chembalam. The permit for KL- 37/1039 was issued on 12.12.2006 and the permit for KL-37/A 5962 was issued on 10.10.2011. The permits are produced and marked as Exts.P1 and P2. According to the averments in the petition, as per the permits issued, the petitioner is liable to operate the vehicle via.Thookupalam Erattayar and Thovala only. 2. Now the grievance of the petitioner is that respondents 4 to 6 with certain local people who claims to be the supporters of respondents 4 and 6 forcibly prevented the operation of the service while reaching the vehicle at a place called 'Assari Kavala' which is situated between Chembalam and Thovala. They prevented the operation of the service by insisting that the service shall divert from Assari Kavala to the place called W.P.(c)No.28524 of 2011 2 Ezhukumvayal Kurisumala Kavala which is situated more than 1 kilometer away from Asari Kavala and come back again for proceeding further in the operation of service. According to the petitioner, they insisting to operate the bus through an unauthorised place with fully loaded passengers against the terms and conditions of Exts.P1 and P2 permits. The petitioner further alleged that the insistence of such an operation by respondents 4 to 6 is only due to their personal interest and that now the petitioner is compelled to violate the permit conditions. Therefore, the petitioner sought for police protection for these two stage carriages to operate on the permitted route shown in Exts.P1 and P2 from the illegal and unauthorised obstruction causing by respondents 4 to 6. 3. Respondents 4 to 6 filed a counter affidavit contending that there are eleven fare stages on the above route and Ezhukumvayal is a fare stage approved by RTA and fares are collected by the operators taking into account the above fact that Ezhukumvayal is a place more than 1 kilometer north from Asari Kavala. Therefore, the stage carriages are bound to operate W.P.(c)No.28524 of 2011 3 touching Ezhukumvayal and they collect enhanced fares on the basis of eleven fare stages and then turn around and say that they are not required to touch Ezhukumvayal. Timings-schedule is also fixed on the above basis. They further contended that the permits issued only specify the termini of the route and the important intermediate points only and all approved bus stops and fare stages are not expressly enumerated in the permit. They have produced Ext.R4(a), copy of the fare stages and Ext.R4(b), proceeding of the timing schedule. 4. Strangely, the 7th respondent also filed a statement virtually inconsonance with the contentions put forward by respondents 4 to 6 and it is contended that as per the permit of the stage carriage vehicles have to go up to Ezhukumvayal which is about 1 km north of Asari Kavala. After reaching Ezhukumvayal, the vehicles have to return back to Asari Kavala and then to proceed to Nedumkandam and vice versa and the 7th respondent also stated that the fare stage was fixed taking into consideration Ezhukumvayal a place 1 km away from Asarikavala also therefore, the petitioner is liable to operate the vehicle W.P.(c)No.28524 of 2011 4 touching Ezhukumvayal a place 1 km away from Asari Kavala. 5. The learned counsel for the respondent Nos.4 to 7 submitted that all the vehicles in this route except the petitioner's vehicle are being operated touching Ezhukumvayal and as per the fare stage fixed by the authorities, the petitioner is liable to operate the vehicle touching Ezhukumvayal as the fare stage was fixed taking into consideration Ezhukumvayal also a place 1 km north from Asari Kavala and 5th respondent has produced Exts.R4(a) and R4(b). R4(a) is the proceedings of Secretary, Regional Transport Authority, Idukki fixing the fare stage in respect of the stage carriage KL-37/1039 and R4(b) is the procedure fixing the timing schedule for the above said vehicle. In these two proceedings 'Ezhukumvayal' is also shown as a point for timing and fare stage. To meet this argument, the petitioner has filed an additional counter affidavit and produced Exts.P5 and P6. Ext.P5 is the proceeding fixing fare stages on the basis of the recommendation of NATPAK. In Ext.P5 the distance between each point is specifically shown. 6. The learned counsel for the petitioner argued that W.P.(c)No.28524 of 2011 5 Ezhukumvayal shown in the fare stage is not a place 1 km away from Asari Kavala and it is a place in the Kattappana- Nedumkandom main route 1.8 kms west to Kowndi and 1.9 kms east from Anjumukku. Therefore, he argued that while fixing the fare stage, the authority has not taken Ezhukumvayal as a place 1 km north from Asari Kavala. Eventhough, the 7th respondent filed statement inconsonance with contentions raised by the respondents 4 to 6, in the statement the 7th respondent admitted that as per Ext.P5 proceedings fare stage distance from Anjumukku to Asari Kavala is 1.9 kms and from Asari Kavala to Kowndi is 1.8 kms. Though the kilometer shown in the fare stage is 1.9 and 1.8 respectively, all the vehicle plying via Assari Kavala has to go upto Ezhukumvayal which is about 1 km north from Asari Kavala. Thus the 7th respondent admitted that while fixing the fare stage Ezhukumvayal was not taken as a place 1 km north from Asari Kavala and the contention of the 7th respondent is that as per Rule 211 of the Kerala Motor Vehicle Rules, the minimum distance of each fare stage shall not exceed 6.5 kms. Therefore, 1 km excess running as claimed by the W.P.(c)No.28524 of 2011 6 petitioner from Asarikavala to Ezhukumvayal does not violate the provisions of law. Thus it is clear that the 7th respondent also admitted that Asari Kavala is the place which is shown in Ext.R4 (b) as Ezhukumvayal and the operators are not legally bound to operate the state carriage upto Ezhukumvayal, as per the permit and the state carriages reach there as a concession from their part. The counsel for the 5th respondent submitted that the fare stage and timing schedule can be taken into consideration for the determination of the route and the operator is liable to operate the vehicle in accordance with fare stages. 7. Though this is a writ petition seeking police protection in view of the rival contentions put forward by the petitioner and respondents, we are constrained to look into the concerned provisions in the Motor Vehicles Act 1998 and Kerala Motor Vehicle Rules 1989 governing the granting of permit and fixing of fare stages and timing-schedule. The permits are being issued as per Section 72 of the Motor Vehicles Act 1988 and as per Section 72(1)(a) a condition is also attached with the permits stating that the vehicle shall be used only in a specified area or W.P.(c)No.28524 of 2011 7 on a specified routes or roads. Similarly as per Section 86 of the Motor Vehicles Act, the transport authority which granted a permit may cancell the permit or may suspend it, for such period as it think fit, if the holder of the permit uses or causes or allows a vehicles to be used in any manner not authorised by the permit. Whereas the fixation of fare stages for stage carriages and schedule of timing are mere proceedings under Rule 211 and 212 of the Kerala Motor Vehicles Rules. Therefore, we find that as far as stage carriage is concerned, the permit is a valid and most important document which gives the right to operate the vehicle in a specified area or on a specified route or routes. The violation of the permit condition warrants suspension or cancellation of permits. It means that the operator shall not use or cause or allow the vehicle to be used, on a route, unless that route is specified in the permit. The operator is not liable to operate the vehicle on a route, unless that route is specified in the permit and he cannot be compelled to operate the vehicle on that route which is not specified. We are not inclined to accept the argument that the permit holder is liable to operate the vehicle in W.P.(c)No.28524 of 2011 8 accordance with places shown in the proceedings of fare stage and timing schedule. The permit which gives the right to use the vehicle on a route is neither presumable nor speculative in accordance with fare stages. Likewise, fare stage proceedings or timing schedule is not a substitute for permit as such proceedings do not confer a right to use the vehicle. Needless to say that fare stage and timing schedule proceedings are proceedings made in exercise of power conferred under Subordinate Legislation only. 8. In view of the above discussion, it could be seen that the petitioner is liable to operate the vehicle through the routes specified by the authorities in Exts.P1 and P2 permits only and he cannot be compelled to operate vehicle touching Ezhukumvayal- Kurusumalakavala, 1 km north of Asari Kavala. The counsel for the 5th respondent submitted that all vehicles except this vehicle are being operated touching Ezhukumvayal(Kurisumala Kavala) and the writ petition is filed with an intention to escape from such an operation but the above submission is not sustainable in view W.P.(c)No.28524 of 2011 9 of the documents produced by the 5th respondent. On going by the documents, it could be seen that all stage carriages except one stage carriage are being operated without touching Ezhukumvayal and the people in the locality as well as the representatives of the people raised it as a fresh demand for their convenience and they don't have a case that these stage carriage operators are violating the permits. In the above circumstances, we are inclined to grant police protection to operate the stage carriages touching the places specifically mentioned in the permits only. In the result: The respondents 2 and 3 are directed to afford necessary and adequate police protection for the operation of the petitioner's stage carriages KL-37/1039 and KL 37/A 5962 on the permitted route specified in Exts.P1 and P2 from the unauthorised obstruction causing by respondents 4 to 6 and their supporters. Considering the grievances of the people in the locality of Ezhukumvayal-Kurusumalakavala, we make it clear that this W.P.(c)No.28524 of 2011 10 order will not stand in the way of considering their grievances in accordance with law by the concerned authorities. Writ Petition stands allowed. PIUS C. KURIAKOSE, JUDGE K.HARILAL, JUDGE ln