IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 10TH DAY OF JUNE 2011/20TH JYAISHTA 1933 WP(C).No. 38682 of 2010 (I) --------------------------- PETITIONER(S): ----------------------- TIRUR TALUK PRIVATE BUS OPERATORS ASSOCIATION, REPRESENTED BY ITS SECRETARY, V.P. KUTTY HASSAN, AL-SILAH TOWER, NEAR BUS STAND, CHEMBRA ROAD, TIRUR- 676 101, MALAPPURAM DISTRICT. BY ADV. SRI.MILLU DANDAPANI. RESPONDENT(S): --------------------------- 1. TIRUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY , TIRUR- 676 101. 2. D.T.O., KSRTC, TIRUR, MALAPPURAM DIST. 3. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THIRUVANANTHAPURAM. R1 BY ADV. MR.K.I. ABDUL RASHEED. R2 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR, SC, KSRTC. R3 BY GOVT. PLEADER MR.K. RAMESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-06-2011, ALONG WITH W.P.(C) NO.7803 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. WP(C).No. 38682 of 2010 (I) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 COPY OF THE REPRESENTATION DATED 10/02/2010 SUBMITTED BY THE SECRETARY OF THE ASSOCIATION TO THE SECRETARY OF THE MUNICIPALITY. EXT.P2 COPY OF THE NOTICE DATED19/03/2010 ISSUED BY THE TIRUR MUNICIPALITY. EXT.P3 COPY OF THE DECISION TAKEN BY THE MUNICIPALITY IN THE MEETING HELD ON 17/02/2010. EXT.P4 COPY OF THE REPRESENTATION DATED 09/04/2010 MADE BY THE SECRETARY OF THE ASSOCIATION TO THE SECRETARY OF THE MUNICIPALITY. EXT.P5 COPY OF THE JUDGMENT IN W.P.(C)NO. 23282/2010 OF THIS HON'BLE COURT. EXT.P6 COPY OF THE ORDER DATED 23/09/2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXT.P7 COPY OF THE NEWS PAPER REPORT APPEARED IN MATHRUBHUMI DAILY DATED 16/12/2010. EXT.P7A COPY OF THE NEWS PAPER REPORT APPEARED IN MADHYAMAM DAILY DATED 15/12/2010. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs. C.T.RAVIKUMAR, J. ------------------------------- W.P.(C)Nos.38682 of 2010 & 7803 of 2011 ------------------------------- Dated 10th June, 2011 JUDGMENT The former writ petition filed by Tirur Taluk Private Bus Operator's Association consisting of about 340 operators mainly carries the prayer to quash Ext.P3, decision of the first respondent i.e., Tirur Municipality dated 17.2.2010 and Ext.P6 order dated 23.9.2010 of the Tribunal for Local Self Government Institutions. The latter writ petition has been filed by two of its members who are holding valid permits to operate state carriage service on the routes which pass through the limits of various local authorities including Tirur Municipality, the common respondent in both the writ petitions. The petitioners are aggrieved by the decision of the Tirur Municipal council dated 17.2.2010 to provide space for Station Master's office to the Kerala State Road Transport Corporation ('KSRTC' for short). The said decision has been produced in the former writ petition as Ext.P3. Aggrieved by Ext.P3 decision the petitioner in the former writ petition submitted Ext.P4 representation requesting for reconsideration of the decision. At the same time, the said petitioner had preferred an appeal viz., Appeal No.634/2010 before the Tribunal for Local Self Government Institutions WP(C).No.38682/2010 & 7803/2011 2 against Ext.P1. On the stay petition moved along with the appeal, notice was ordered to KSRTC. Pending the said appeal the petitioner Association moved WP(C).No.23282/2010 before this Court. In fact, in the said appeal and stay petition before the Tribunal, KSRTC was not made a party. Upon the submission of the Senior Counsel who appeared for the Association that appropriate application would be made before the Tribunal for impleading KSRTC, that writ petition was disposed of as per Ext.P5 judgment without prejudice to the remedy of the petitioner to seek appropriate orders from the Tribunal. Later, after hearing all the sides the Tribunal dismissed the appeal as per Ext.P6 order dated 23.9.2010. The former writ petition has been filed on 27.12.2010 challenging Exts.P3 and P6 therein. The said writ petition is not yet admitted. The petitioners in the latter writ petition are, in fact, members of the petitioner Association in the former writ petition. The latter writ petition has been filed only on 11.3.2011, seeking the following reliefs:- (i) to issue a writ of mandamus or any other appropriate writ, direction or order directing the 2nd respondent to make available the entire private bus stand for private stage carriages instead of allotting any particular space to the 3rd respondent – Corporation for the starting and halting of their service; (ii) to issue a writ of mandamus or any other appropriate writ, direction or order directing the 1st respondent to WP(C).No.38682/2010 & 7803/2011 3 consider Ext.P2 application submitted by the petitioners for revoking the sanction given to the 2nd respondent for Tirur Bus Stand under Rule 207 of the Kerala Motor Vehicles Rules, forthwith, or at any rate within a time limit to be fixed by this Honourable Court, in the interest of justice. They filed Ext.P2 representation dated 14.2.2011 before the first respondent Municipality requesting to withdraw the sanction for setting up Station Master's office in the space alloted for that purpose. The inaction on the part of the first respondent on Ext.P2 representation that virtually carries their grievance and objections against the decision on the part of the Tirur Municipality to provide space in the commercial complex for using a Station Master's office, that constrained the petitioners to file the said writ petition. Thus, in short, the petitioners in both these writ petitions got common grievance against the very same decision taken by the Municipal Council on 17.2.2010 as per Ext.P3 in the former writ petition. 2. Various contentions have been raised by the petitioners to assail Ext.P3 and also Ext.P6. Virtually, the petitioners raise same contentions. According to the petitioners, in terms of Rule 207 of the Kerala Motor Vehicles Rules, 1989 (for short 'the Rules'), the local authority is bound to provide facilities for drinking water supply, lighting, latrine and waiting sheds for passengers and convenient WP(C).No.38682/2010 & 7803/2011 4 parking places. A bus stand can be established only with the approval of the Regional Transport Authority. It is contended that the present facilities are insufficient even for the private bus operators and therefore, the decision on the part of the Municipal Council without looking into any of such aspects in Rule 207 of the Rules especially, the approval of the Regional Transport Authority or the State Transport Authority cannot be sustained. The petitioners have preferred Ext.P1 representation. Admittedly, they had also moved the Tribunal for Local Self Government Institutions by filing an appeal against Ext.P3 decision. The appeal against Ext.P3 was dismissed as per Ext.P6. The contention of the petitioner in the former writ petition is that the decision of the Tribunal in Ext.P6 is liable to be interfered with on various grounds. Firstly, the very conclusion that the order in question was passed under Section 215 of the Kerala Municipality Act (in short 'the Act') is unsustainable and in fact, according to the petitioners, as against the decision under Sec.472 of the Act, an appeal will lie under Sec.509(7) of the Act. For a proper consideration of the contentions raised by the petitioners to assail Ext.P6, it is necessary to refer relevant portions of the Act. Sec.215 of the Act reads as follows:- “215. Power of Municipality to acquire and dispose of property:- (1) A Municipality may in the manner prescribed, acquire any property such as land WP(C).No.38682/2010 & 7803/2011 5 or building within or outside its Municipal area or dispose of any of its properties with the prior approval of the Government for providing any arrangement or facility for a public purpose. (2) (a) A Municipality may construct commercial or other buildings and let them out to the public who need them on licence and may charge such fees as it may fix for the use and occupation of the same, in the manner prescribed. (b) xx xx Provided that after the said period, a licence may be renewed subject to such terms and conditions as may be fixed at that time; (c) In all cases except renewal of licence or rehabilitation of a licensee, licence shall be granted only by public auction or tender. (3) Every licence under sub-section (2) shall contain terms and conditions governing the use and occupation of the building or room or space therein and the rate and time of payment of fees and such terms and conditions shall be reduced in writing in the form of an agreement in stamp paper of the appropriate value. (4) No building or room or space let out under sub-section (2) shall be sub-let by the licensee to any person nor the nature of use changed without the prior approval of the Municipality. Provided that the Municipality may at the instance of a licensee transfer the licence to any other person subject to such terms and conditions as it may deem fit to impose and upon such transfer, it shall be deemed to be a fresh licence for all purposes. (5) Where at any time it appears to the Secretary that any building, room or space let out to any person under sub-section (2) has been sub-let, he WP(C).No.38682/2010 & 7803/2011 6 shall by order, immediately cancel the licence issued to such person and direct the person or persons in use and occupation of the building, room or space, as the case may be, to vacate within such time as may be specified in the order: Provided that the Secretary shall, before issuing an order cancelling the licence and evicting the user or occupier give notice to such person requiring him to show cause within a reasonable time to be specified in the notice, why such an order should not be made. 6) Where an order issued under sub-section (5) is not complied with within the time specified therein, the Secretary shall cause such person or persons to be removed from the building, room or space with the assistance of police and close down the building, room or space as the case may be, and thereupon all properties found in such premises shall, belong to the Municipality and shall be disposed of and the proceeds credited to the Municipal fund. 7) Every person to whom a licence has been issued under sub-section (2) shall pay without demand the licence fee and other charges at the rate specified in the agreement within such time as may be specified therein.” Section 472 of the Act reads as follows:- “472. Provision of public cart stands etc.:- (1) A Municipality may, subject to such guidelines as the Government may issue in this behalf, construct or provide public landing places, halting places and cart stands and may levy fees for the use of the same. (2) The Municipality may - (a) place the collection of any such fees WP(C).No.38682/2010 & 7803/2011 7 under the management of such person as may appear to it to be proper; or (b) farm out the collection of any such fees for any period not exceeding three years at a time and on such terms and conditions as it may think it. (3) A statement in English and the language of the locality, showing the fees fixed by the Municipality for the use of such place, shall be put up in a conspicuous part thereof. Explanation:- A cart stand shall, for the purposes of this Act, include a bus stand, taxi stand, autorickshaw stand, lorry stand and stand for other vehicles arid for animals.” Rule 207 of the Rules is also relevant in this case, which reads as follows:- “207. Starting places and termini:- In the case of public service vehicles (other than motor cabs) the State or Regional Transport Authority may, after consultation with such other authority as it may deem desirable, fix such places at the termini of the bus routes and in the course of the routes, as may be necessary, at which the vehicle may stop and wait for picking up or setting down passenger. Where a local authority has provided and maintains a public stand for motor vehicles with facilities for drinking water supply, lighting, latrine and waiting sheds for passengers and convenient parking places, the State or Regional Transport Authority may approve the use of that stand for the purpose of picking up or setting down passengers of public service vehicles (other than motor cabs) and thereafter every vehicle shall make use of that stand. The approval granted by a WP(C).No.38682/2010 & 7803/2011 8 Transport Authority may be revoked by it, if the facilities provided at the stand cease to be to its satisfaction: Provided that if bus stands or parking places or stopping places have been fixed either in accordance with this rule or in accordance with rule, as the case may be, no public service vehicle other than a stage carriage shall be stopped in such places for the purpose of picking up any passenger waiting there and intending to travel by stage carriages.” 3. I may, firstly deal with the contentions raised based on Rule 207 of the Rules. A perusal of Rule 207 would reveal that, where a local authority has provided and maintains a public stand for motor vehicles with facilities for drinking water supply, lighting, latrine and waiting sheds for passengers and convenient parking places, the State or Regional Transport Authority may approve the use of that stand for the purpose of picking up or setting down passengers of public service vehicles (other than motor cabs) and thereafter every vehicle shall make use of that stand. It is further provided that the approval granted by a Transport Authority may be revoked by it, if the facilities provided at the stand cease to be to its satisfaction. 4. Admittedly in this case, the Tirur Municipality provided and has been maintaining a public bus stand for motor vehicles. The facilities specifically referred to in Rule 207 have been provided with. WP(C).No.38682/2010 & 7803/2011 9 The contention is that such facilities provided and maintained by the Municipality were taken note of by the Regional Transport Authority for the purpose of granting approval and therefore, the Municipality is not authorised to make any further change which may adversely affect the provided facilities. At any rate, it is contended that any such steps could be taken only with the approval of the Transport Authority. Obviously, Rule 207 of the Rules carries no such inhibition as contended by the petitioners. At best, one can say that any reduction in the facilities might persuade the Transport Authority who approved the use of the bus stand provided and maintained by the local authority to revoke the same on cessation of the facilities provided with, for getting the permission of that authority. At any rate, such an action would not and could not be taken by that authority without taking stock of the entire situation or unilaterally, without proper intimation to the concerned local authority. There is no case for the petitioners that the Transport Authority has initiated any such step so far, or taking such steps for revocation of the approval of the bus stand. In fact, the very contention of the petitioners is that for providing a space for housing the Station Master's Office of the Kerala State Road Transport Corporation the Municipality has to obtain approval from the Transport Authority as the bus stand in question is one approved by the Transport Authority. I cannot countenance with the said contention. In fact, a scanning of WP(C).No.38682/2010 & 7803/2011 10 Rule 207 of the Rules would reveal that it does not contemplate any such approval. In other words, there is no statutory requirement that before taking such a decision approval from the Transport Authority is to be obtained. In the said circumstances, there is no basis for the contention that in terms of the provisions under Rule 207 of the Rules it is mandatory for the local authority to obtain approval of the Transport Authority to take a decision, as in this case, for the purpose of providing space for housing Station Master's Office in the concerned bus stand. Therefore, the contentions raised by the petitioners relying on Rule 207 has to fail. 5. What remains to be considered in these writ petitions is whether the decision of the Tribunal that Ext.P3 dated 17.2.2010 of the Tirur Municipal Council to provide space for housing Station Master's Office for the Kerala State Road Transport Corporation is a decision taken invoking the provisions under section 215 of the Act or whether it is a decision taken exercising the powers under section 472 of the Act. After considering all the facts the Tribunal arrived at the conclusion that the order impugned was passed by invoking the powers under section 215 of the Act. According to the petitioners, the said conclusion arrived at by the Tribunal is absolutely unsustainable and in fact, the decision in Ext.P3 is one passed by invoking powers under section 472 of the Act. WP(C).No.38682/2010 & 7803/2011 11 To know whether there exists any substance in the said contention the factual situation has to be scanned in the light of the relevant provisions. Section 472 of the Act provides for public cart stands etc. It enables the Municipality to construct or provide cart stands subject to such guidelines issued by the Government from time to time. The explanation thereunder makes it clear that a cart stand for the purpose of the Act will include a bus stand as well. Evidently, the bus stand in question was established by virtue of the power under section 472 of the Act and the concerned Transport Authority has already granted its approval in terms of Rule 207 of the Rules. In this case, the impugned decision in Ext.P3 does not pertain to the establishment of a cart stand. A perusal of Ext.P3 would reveal that as per the same, the Council took a decision to provide space for housing Station Master's Office for the Kerala State Road Transport Corporation. It could only be a decision to augment further facilities to the travelling public in an already established cart stand. The contention of the petitioners is that granting space for housing such Station master's Office would diminish the facilities provided in the bus stand and, therefore, it would violate the provisions under Rule 207 of the Rules. There is no basis or reason for raising any grievance based on Rule 207 of the Rules by the petitioners as it would not in anyway affect their right to use the said public bus stand. The very purport of Rule 207 would make it clear that it cannot WP(C).No.38682/2010 & 7803/2011 12 stand in the way of affording more facilities and more utility of the stand, to the travelling public. In this case, the Tribunal after appreciation of the factual situation arrived at a conclusion that the decision in Ext.P3 is one taken by invoking the powers under section 215 of the Act. There cannot be any doubt with respect to the position that taking a decision to let out a building whether with fee or without fee is a matter which falls within the purview of section 215 of the Act. In the said circumstances, I cannot find any illegality in the decision in Ext.P6 by the Tribunal. A decision of the Tribunal could be interfered with if its conclusions are unsupported by materials or if it is palpably perverse. In that view of the matter, neither Ext.P3 nor Ext.P6 calls for any interference. There is no scope for any judicial review. Accordingly, W.P.(C)No.38682 of 2010 is dismissed. The petitioners in the latter writ petition are members of the association of the petitioner in the former writ petition. They have taken up the matter before the Regional Transport Authority alleging that the action on the part of the local authority in taking a decision to provide space for housing Station Master's Office would diminish the facilities provided in the bus stand and, therefore, it is a matter to be looked into by the Regional Transport Authority under the provisions in Rule 207 of the Rules. After appreciating the facts involved in this case WP(C).No.38682/2010 & 7803/2011 13 I have already arrived at the conclusion that the facts involved in these writ petitions are not one falling within the scope of Rule 207 of the Rules. That apart, if the decision of the Municipality would diminish the facilities provided in the bus stand in question, it would only enable the Transport Authority to consider whether the approval granted to the bus stand in question should be revoked or not. I am of the firm belief that the Regional Transport Authority also would appreciate and acknowledge providing of further facilities in a private bus stand. At any rate, there is nothing in Rule 207 of the Rules or in any of the provisions relied on by the petitioners that empowers the Regional Transport Authority to interfere with the decision of the Municipality to provide space for housing Station Master's Office for the Kerala State Road Transport Corporation. Therefore, at the instance of the petitioners a direction could not be issued to the Regional Transport Authority to consider the sustainability or otherwise of the decision of the local authority taken as per Ext.P3. The relief is in the nature of mandamus. It is elementary that this Court will issue a writ of mandamus to an authority only if it is shown that the said authority has failed to exercise a duty and a corresponding right in the applicant to seek performance of that duty. I am at a loss to understand, in view of the facts obtained in this case, how can the petitioners contend that the RTA has failed to exercise a duty and they got a corresponding right to seek performance WP(C).No.38682/2010 & 7803/2011 14 of that duty. It is paradoxical that the petitioners who are bus operators using the bus stand calls for intervention of RTA that too, even after pointing out that reduction of facilities might persuade the RTA to revoke the approval. Any vested private interest cannot be permitted to defeat the public interest and necessarily, the private interest must give way to the larger public interest. Setting up of Station Master's Office to the KSRTC in the bus stand cannot be said to be against the interest of the public. At any rate, there is no scope for issuing a direction to the Regional Transport Authority to look into the correctness or otherwise of the decision in Ext.P3 or to interfere with the same. No provision of law has been brought to my notice empowering the RTA to sit in appeal over such a decision of a local authority. Therefore, there is no merit in the said writ petition. Accordingly, W.P.(C)No.7803 of 2011 is also dismissed. Sd/- C.T.RAVIKUMAR Judge Kvs/TKS