IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :27.04.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.1645 & 1646 OF 2010 and WRIT PETITION Nos.22634 to 22636, 20961, 19331, 19332, 15437, 21997 and 21998 of 2009 and connected miscellaneous petitions. 1.B.R.Prakash Kumar .. Petitioner in W.P.No.1645/2010 2.D.Shivamadu .. Petitioner in W.P.No.1646/2010 3.B.V.Prajwal .. Petitioner in W.P.No.22634 of 2009 4.N.Mahendra .. Petitioner in W.P.No.22635 of 2009 5.P.J.Suresh Babu .. Petitioner in W.P.No.22636 of 2009 6.P.Siddasha .. Petitioner in W.P.No.20961 of 2009 7.C.Babu .. Petitioner in W.P.Nos.19331 and 19332 of 2009 8.N.SampathKumar .. Petitioner in W.P.No.15437 of 2009 9.Mahadeva Gowda .. Petitioner in W.P.No.21997 of 2009 10.B.V.Prajwal .. Petitioner in W.P.NO.21998 of 2009 vs. 1.The Collector-cum-Regional Transport Authority, The Nilgiris. 2.The Regional Transport Officer, The Nilgiris 3.The District Forest Officer, Forest Department, Mudumalai, The Nilgiris. .. Respondents 1 to 3 in all W.Ps. https://hcservices.ecourts.gov.in/hcservices/ 4.The District Superintendent of Police, Nilgiris. ... 4th respondent in W.P.Nos.22634 to 22636, 20961, 19331 and 19332, 15437 and 21997 and 21998 of 2009 5.S. Jeyachandran .. 5th respondent in W.P.No.22635 of 2009 (R5 impleaded as per order dated 1.2.2010 in MP.No.1/10 in WP.22635/09) Prayer in W.P.No.1645 of 2010: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movement of the petitioner's vehicles bearing Registration Nos.KA- 09-A-7421 and KA-55-283, SWARAJ MAZDA based on the oral conferences published in The Nilgiris News papers (Dinakaran and Dina Thanthi) both dated 26.08.2008 by the first respondent on the Kalahatti road to reach Masanagudi. Prayer in W.P.No.1646 of 2010: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movement of the petitioner's vehicles bearing Registration Nos.KA- 09-A-6611 and KA-09-A-8856, Maxi Cab based on the oral conferences published in The Nilgiris News papers (Dinakaran and Dina Thanthi) both dated 26.08.2008 by the first respondent on the Kalahatti road to reach Masanagudi. Prayer in W.P.No.22634 of 2009: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movements of the petitioner's vehicles bearing Registration Nos.KA-69-A-6517 and KA-55-645, (MAXI CAB), based on the oral conferences published in The Nilgiris News papers (Dinakaran and Dina Thanthi) dated 26.08.2008 by the first respondent herein, namely, the Collector-cum-Regional Transport Authority, The Nilgiris, on the Kalahatti road to reach Masanagudi. Prayer in W.P.No.22635 of 2009: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movements of the petitioner's vehicles bearing Registration Nos.KA-09-A-5273 and KA-09-A-5275, (SWARAJ MAZDA), based on the oral conferences published in The Nilgiris News papers (Dinakaran https://hcservices.ecourts.gov.in/hcservices/ and Dina Thanthi) dated 26.08.2008 by the first respondent herein, namely, the Collector-cum-Regional Transport Authority, The Nilgiris, on the Kalhatti road to reach Masanagudi. Prayer in W.P.No.22636 of 2009: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movements of the petitioner's vehicle bearing Registration No.KA- 09-A-6684 and KA-09-A-9215 (MAXI CAB), based on the oral conferences published in The Nilgiris News papers (Dinakaran and Dina Thanthi) dated 26.08.2008 by the first respondent herein, namely, the Collector-cum-Regional Transport Authority, The Nilgiris, on the Kalahatti road to reach Masanagudi. Prayer in W.P.No.20961 of 2009: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movements of the petitioner's vehicle bearing Registration No.KA- 09-B-26 (MAXI CAB), based on the oral conferences published in The Nilgiris News papers (Dinakaran and Dina Thanthi) dated 26.08.2008 by the first respondent herein, namely, the Collector-cum-Regional Transport Authority, The Nilgiris, on the Kalahatti road to reach Masanagudi. Prayer in W.P.No.19331 of 2009: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movements of the petitioner's vehicle bearing Registration No.TN- A-3855, (MAXI CAB), based on the oral conferences published in The Nilgiris News papers (Dinakaran and Dina Thanthi) dated 26.08.2008 by the first respondent herein, namely, the Collector-cum-Regional Transport Authority, The Nilgiris, on the Kalahatti road to reach Masanagudi. Prayer in W.P.No.19332 of 2009: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movements of the petitioner's vehicles bearing Registration Nos.TN-43-B-6890 and TN-43-C-0320, (MAXI CAB), based on the oral conferences published in The Nilgiris News papers (Dinakaran and Dina Thanthi) dated 26.08.2008 by the first respondent herein, namely, the Collector-cum-Regional Transport Authority, The Nilgiris, on the Kalahatti road to reach Masanagudi. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.15437 of 2009: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 to 4 to interfere with the movement of the petitioner's vehicles based on the oral conferences published in The Nilgiris News papers (Dinakaran and Dina Thanthi) in respect of vehicles bearing Regn.No.KA-55-322 and KA-55-871, dated 26.08.2008 by the first respondent herein, namely, the Collector-cum-Regional Transport Authority, The Nilgiris, on the Kalahatti road to reach Ooty. Prayer in W.P.No.21997 of 2009: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movements of the petitioner's vehicle bearing Registration No.KA- 55-1074, based on the publication published in the Nilgiris News Papers (Dinakaran and Dina Thanthi) dated 26.08.2008 by the first respondent herein, namely, the Collector-cum-Regional Transport Authority, The Nilgiris, on the Kalahatti road to reach Masanagudi. Prayer in W.P.No.21998 of 2009: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, forbearing the respondents 1 and 2 to interfere with the movements of the petitioner's vehicles bearing Registration Nos.KA-69A-6517 and KA-55-645 (MAXI Cab), based on the oral conferences publication published in the Nilgiris News Papers (Dinakaran and Dina Thanthi) dated 26.08.2008 by the first respondent herein, namely, the Collector-cum-Regional Transport Authority, The Nilgiris, on the Kalahatti road to reach Masanagudi. For petitioners : Ms.P.Vedavalli in all the Wps. For respondents : Ms.Lita Srinivasan 1 2,& 4 in all Wps. Government Advocate. For R.3 : Mr.K.Rajasekaran, Government Advocate. Mr.M.R.Shivakumar for R5 (in WP.22635/10) .. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The writ petitioners are the tourist operators having obtained All India Maxi Cabs permit to operate through out India. 2.The writ petitioner in W.P.No.1645 of 2010 has the permit in respect of his vehicles Nos.KA-09-A-7421 with valid permit from 15.02.2007 to 14.02.2012 and KA-55-283, with valid permit from 27.03.2008 to 26.02.2013. The petitioner in W.P.No.1646 of 2010 is having vehicle bearing Reg.No.KA-09-A-6611 with valid permit from 11.10.2006 to 10.10.2011 and KA-09-A-8856 with valid permit from 07.08.2007 to 06.08.2012. The petitioner in W.P.No.24634 of 2009 in respect of vehicle bearing Reg.No.KA-09-A-6517 with a valid permit from 03.10.2006 to 02.10.2011 and KA-55-645 with a valid permit between 17.10.2008 to 16.10.2013. The petitioner in W.P.No.22635 of 2009, is having vehicle bearing in Reg.No.KA-09-A-5273 with valid permit from 15.05.2008 to 14.05.2009 and KA-09-A-5275 with valid permit from 15.05.2006 to 14.05.2011. The petitioner in W.P.No.22636 of 2009 is having vehicle bearing Reg.No.KA-09-A-6684 with valid permit from 21.10.2006 to 20.10.2011 and KA-09-A-9215 with valid permit from 25.09.2007 to 24.09.2012. The petitioner in W.P.No.20961 of 2009 is having a vehicle bearing Regn.No.KA-09-B-26 with valid permit from 07.03.2008 to 06.03.2013. The petitioner in W.P.No.19331 of 2009 having vehicle bearing Regn.No.TN-43-A-3855 with valid permit from 07.05.2006 to 06.05.2011. The petitioner in W.P.No.19331 of 2009 having vehicle bearing Regn.No.TN-43-B-6890 with valid permit from 09.3.2007 to 04.05.2013 and TN-43-C-0320 with valid permit from 16.04.2008 to 15.04.2013. The petitioner in W.P.No.15437 of 2009 having vehicle bearing Reg.No.KA-55-332 with valid permit from 05.05.2008 to 04.05.2013 and KA-55/871 with valid permit from 17.04.2009 to 16.04.2014. The petitioner in W.P.No.21997 of 2009 having vehicle bearing Regn.No.KA-55/1074 with valid permit from 11.09.2009 to https://hcservices.ecourts.gov.in/hcservices/ 16.09.2014. The petitioner in W.P.No.21998 of 2009 having vehicle bearing Regn.No.KA-09-A-6517 with valid permit from 03.10.2006 to 02.10.2001 and KA-55-645 with valid permit from 17.10.2008 to 16.10.2013. 3.In all these cases, permits were granted to the petitioners by the Karnataka State Transport Authority and Tamil Nadu Authority for operating Mysore to Ooty and other places of tourist importance and they have office at Ooty and some of the vehicles are parked at Masanagudi in the Ghat section and those vehicles have to ply through the forest area from Theppakadu to Ooty namely, Sagur, Kallahatty, Thalakadu, It is stated to be the shortest course covering a distance of nearly 36 kms from Ooty. The District Collector, Nilgiris has issued a Gazette notification on 01.02.1992 closing all vehicular traffic on the Thalakunda, Theppakadu Road (via) Kalahatty except relating to State Transport Corporation buses and Government vehicles belonging to the Central and State Governments and that was issued by the Collector as per the powers under Section 74 of the Motor Vehicles Act, 1939 which Act has been repealed. The reason assigned for stopping the said vehicular movement is to preserve animal movements and environmental and ecology of the area. The validity of the said notification was challenged on the basis that it is against public interest depriving the people from the area in the village between Theppakadu, Masanagudi, Sagur, Ekuin, Kallahatty of their existing car and van facilities in case of emergencies and it was unreasonable restriction and having failed to apply its mind in respect of the extent which is only 36 kms up and down while the operators are made to travel 76 kms from Theppakadu (via) Gudalur, Naduvattam, Pykara, Thalakunda, which is a circuitous road. It is stated that the said notification was quashed by the High Court. However, the first respondent Collector being the Regional Transport Authority has called for press notification informing that in a meeting of Superintendent of Police and Regional Transport Officer, he has banned the operation of vehicles like Swaraj Mazda, Maxicab, Tempo Travellers from operating via Kallahatty to Masanakudi and the said report has been published in Dinakaran and Daily Thanthi in Nilgiris edition, dated 26.08.2008. In those circumstances, the present writ petitions have been filed by the tourist operators to forbear the respondents 1 and 2 from interfering with the movement of the petitioners' vehicle based on the said oral reference on the Kallahatty to Masanakudi Route on the ground that such press notification is opposed to the principles of natural justice and violative of Article 14 of the Constitution of India especially when the tourist buses and buses operated by the State owned Transport Corporations are permitted; https://hcservices.ecourts.gov.in/hcservices/ that prohibition of the above said vehicles for movement especially when the High Court has earlier quashed the notification issued as per the provision of the Act; that the petitioners have invested a huge amount in purchasing of the vehicles and having paid road tax to the Karnataka and Tamil Nadu Governments and paid insurance, are unable to operate and that the petitioners and travelling public at large are put to irreparable loss because of such conduct of the first respondent. 4.In the counter affidavit of the First respondent District Collector, in all these cases, it is stated that the permit granted to these petitioners to ply on road is subject to right to exempt those prohibited areas. The permit given are not unfettered and they are subject to various restrictions and there is no vested right to use the road by the petitioners in the Forest Defence and other sensitive areas which are subject to regulation and restrictions which are the matter of requirement. 5.It is also stated that the Karnataka High Court in a public interest litigation has restricted the vehicular movement between 9 p.m. to 6 a.m in a public interest litigation. 6.It is denied that the vehicles parked at Masanagudi have to ply within Forest area to Theppakadu to Ooty, Segur, Kallhatty, Thalakunda. It is stated that it is a NH-67 extension which connects Mysore to Ooty via Gudalur – Theppakadu – Kakkanalla and Bandipur whereas the road passing through Segur, Kallahatty which is in the forest area covering shortest distance of only 37 kms from Ooty and the petitioners, as a matter of right cannot claim that they should be permitted to ply only in the said route unmindful of the other facts. 7.It is stated that the notification earlier given on 01.02.1992 was superseded by another notification issued by the respondents, dated 26.04.2001 published in the Nilgiris Gazette notification, dated 05.05.2001. It is as per the said notification, the Collector as Regional Transport Authority has closed the vehicular traffic on Thalaikunda – Theppakadu road via Kallahatty from 11 p.m. to 6 a.m. 8.The movement of vehicles namely Maxi cabs, trucks etc., on Ooty – Theppakadu via Kallahatty was examined on the background of steep gradient and danger to the wild animals and the forest areas and on assessment of the entire facts, it was decided not to allow https://hcservices.ecourts.gov.in/hcservices/ the vehicle except the Corporation buses and Government vehicles. It was also due to the reason that Ooty-Thalaikunda-Theppakadu Road is very steep in gradient having 36 hairpin bends which are sharp and narrow making it inconvenience for negotiating upcoming and downward vehicles to avoid accidents and the vehicles running on this road have to pass a distance of 26 kms through Wild Animal Sanctuary disturbing free movement of wild animals on either side of the road causing disturbance to ecology, flora and fauna. It is disturbed wild habitation as night traffic affects the behavioral biology of animals like mating, breeding etc., 9.It was taking into consideration the above said factors the road between Thalaikunda - Theppakadu passing through forest area was closed between 11 p.m. To 6 a.m. in the proceedings, dated 26.04.2001 and notified with the concurrence of the State Transport Authority, dated 25.04.2001. Further, it is stated that the road from Theppakadu to Kallahatty is passing through forest areas and areas notified for Project Tiger and Elephant Corridor for the free movements of elephants are located in the forests on the said route. The movement of the vehicles does not curtail the movement of the local residents during emergency and check post authorities instructed to allow the vehicles in case of emergency. 10.In the counter affidavit, the details of the 52 accidents which have taken place during 2005 to 2009 in the said area involving Tempo travelers, Maxi cab, Jeep, Car etc., are given stating that in the accident 24 persons were killed, 78 persons involving in grievous injuries and 202 in simple injury. Therefore, it is not correct to state that the restriction has been imposed without application of mind. It is stated that the road passing through Gudalur is a National Highway wide enough to stand the pressure of vehicles on either side and has all facilities for safe navigation and with many tourist spots like Mudumalai Sanctuary, Frog Hill View Point, Rose Wood Sanctuary view point, Mukurthi Dam, Pykara Dam, Kamaraj Sagar Dam etc., 11.It is also denied that more accidents have happened in the national highway. On the contrary, the road between Theppakadu and Kallahatty is not only steep but also has 36 hairpin bends. It is stated that the notification was issued on 26.04.2001 which is in the public interest. It is stated, by virtue of the order of injunction passed by this Court, the petitioners are using the prohibited area between Theppakadu and Thalaikunda via Kallahatty hampering the free movement of wild animals during night hours and the petitioners have not awarded right to use the said route. https://hcservices.ecourts.gov.in/hcservices/ 12.S.Jeyachandran, the President of the Tamil Nadu Green Movement, which is a non governmental Organisation has filed M.P.No.1 of 2010 in W.P.No.22635 of 2009 to implead himself as a party stating that it is an organisation started with an object of protecting environment, nature and wild life. It is stated that the road Ooty to Mysore through Kallahatti ghat section is too steep almost 45 degree passing through Mudhumalai Tiger Reserve and also Elephant Sanctuary and there are 36 hairpin bends causing accidents very often resulting in killing of wild animals. Therefore, it is stated that the Collector cum Regional Transport Authority in the proceedings dated 26.04.2001 has imposed a ban on vehicular movement in Ooty-Masanagudi Road via Kallahatti and the same has been adhered to by all the local residents, except through emergency service. However, the writ petitioners were operating commercial vehicles from Ooty to Mysore without taking NH-67 which connects Ooty via Gudalur to Mysore in order to minimise the area of 30 kms by affecting the wild life only for their personal advantage. 13.He has also referred about the judgment of the Karnataka High Court in a Public Interest Litigation prohibiting traffic in Bhandipur National Park in Ooty-Mysore Highway between Bhandhipur and Kakkanalla between 9 p.m. and 6 a.m. and therefore, the vehicles are parked in the jungle through out the night and the passengers getting down from the vehicle and sleeping on the road and by eating the parcels brought by them and throwing the plastic papers inside the protected area. It is stated that the animals classified as endangered species under Schedule-I of the Wild Life Protection Act, 1972 are feeding on the wastes thrown by such passengers and also the plastic carry bags resulting in their death. 14.It is stated that the first Bench of this Court in W.P.No.16907 of 2009 in a Public Interest Litigation seeking prohibition of movement between 9 p.m. to 6 a.m in Ooty-Mysore NH- 67, between the Thorapalli and Kakkanalla Stretch, by order dated 27.08.2009 has directed the Collector to take action expeditiously on the representation and these facts and the order of this Court have been suppressed by the petitioners by filing writ petitions and the same is opposed to the public and the wild life. 15.A reference to the earlier order passed by this Court, in W.P.Nos.14579 and 23163 of 1995 dated 25.10.1995 shows that the notification issued by the District Collector dated 01.02.1992 https://hcservices.ecourts.gov.in/hcservices/ prohibiting the movement between Thalakunda, Theppakadu Road Via, Kalahatty was under Section 74 of the Motor Vehicles Act, 1939 which came to be repealed by the Motor Vehicles Act (Central Act) 59/1988 and it was in those circumstances, a direction was issued not to interfere with the petitioner's vehicle based on the said notification based on the repealed Act and the writ petition came to be allowed. The grievance of the petitioner is that after the original order came to be set aside by this Court, without following the provisions of the Motor Vehicles Act, 1988 by virtue of the paper publication a restriction regarding the movement of the vehicles on the above said routes have been effected which is unauthorised. 16.The contention that has been raised on behalf of the petitioners as submitted by Ms.P.Vedavalli, the learned counsel for the petitioners in these cases, is that the vehicles of the petitioners have never involved in any accident and in such a case, there is a provision under Section 89 of the Motor Vehicles Act for the purpose of cancellation of permit. It is her submission that while in respect of State owned buses there is no bar such bar given to the private operators like that of the petitioners is only arbitrary. When the vehicles of the Government can be plied between 11 p.m to 6 a.m there is no rationale to restrict it for private operators during night time. 17.On the other hand, it is the submission of the respondents as well as the impleading party that the steps have been taken only for the purpose of protection of wild life animals during the restricted hours in the night and that cannot be said to be an unreasonable restriction. 18.I have considered the submissions made on either side and perused the materials available on record and also given my anxious thought to the issue involved in this case. 19.Section 115 of the Motor Vehicles Act, 1988 enables the State Government or any authority, authorised by the Government in the interest of public safety or convenience to restrict or prohibit the driving of motor vehicles or of any description by the official gazette. It also provides that in cases that such restrictions are to be kept for 30 days, the notification is not necessary, it could be by a legal publication. https://hcservices.ecourts.gov.in/hcservices/ 20.Section 115 of the Motor Vehicles Act, is as follows: "115.Power to restrict the use of vehicles:-The State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may by notification in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification,the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under Section 116 at suitable places: Provided that where any prohibition or restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction”. 21.Rule 370 of the Tamil Nadu Motor Vehicles Rules, enables the State Transport authority or the Regional Transport Authority to impose such restriction which is as follows: “370.Powers of Transport authority to restrict speed, weights etc.,:-1)The State Transport Authority and Regional Transport Authority shall have the power to impose speed limits, to impose limits on the laden weight or axle weight or dimensions of motor vehicles and to prohibit or restrict the use of motor vehicles generally or of a particular class or trailers in a specified area or in respect of any road; Provided that no limits or prohibition or restrictions shall be imposed by the Regional Transport Authority without the specific concurrence of the State Transport Authority. (2)The Commissioner of Police in the City of Chennai and the Superintendent of Police in the district shall exercise the powers- https://hcservices.ecourts.gov.in/hcservices/ i)to impose speed limits including the minimum speed; and ii)to designate any road as a main road; Provided that the power conferred by this sub-rule shall be subject to the control of the State Transport Authority”. 22.It is seen that by virtue of the said powers conferred under the Motor Vehicles Act 1988, the first respondent District Collector cum Regional Transport Authority has issued a restriction order by District gazette notification, dated 05.05.2001 which is as follows: “These restrictions are ordered considering the dangers involved on the above road in the interest of public safety and also in view of election and also of tourist season. In the case of emergency, any class of vehicles can ply on the above route only with the prior permission of the Collector of the Nilgiris-cum-the Regional Transport Authority. This notification is issued with the concurrence of the State Transport Authority vide R.No.31448/H2/2001, dated 25th April 2001. This notification come into force with immediate effect”. 23.The existence of such notification, has been mentioned by the first respondent in the counter affidavit, as stated above. Inasmuch as the said statutory notification which had been issued by the first respondent Regional Transport authority remains not challenged, now it is not open to the petitioners to file the above said writ petitions to forbear the respondents to interfere with the movement of their vehicles. In fact, the