IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 14782 of 2009(P) -------------------------- PETITIONER(S): --------------- KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR,TRANSPORT BHAVAN,FORT,THIRUVANANTHAPURAM. BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC RESPONDENT(S): --------------- 1. SAJEESH BABU, S/O.APPUKUTTAN,AGED 37, CHANDRA BHAVAN,ARUVIKUZHY.PO. 2. THE REGIONAL TRANSPORT AUTHORITY,IDUKKI, REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY,R.T.A.,IDUKKI. ADV. SRI.P.DEEPAK FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.8.2009, ALONG WITH W.P.(C).14767/09 AND CONNECTED CASES, THE COURT ON 7.10.2009 DELIVERED THE FOLLOWING: WP(C).No. 14782 of 2009 ORDER IN. I.A.7216/2009 DISMISSED 7.10.2009 SD/- V.GIRI, JUDGE V.GIRI, J ....................... W.P.(C)s.14782, 14767, 21279, 14744 & 14869/2009 ....................... Dated this the 7th day October, 2009 JUDGMENT The Kerala State Road Transport Corporation challenges Ext.P2 order passed by the State Transport Appellate Tribunal, by which the Tribunal allowed the revision filed by the 1st respondent herein against the decision taken by the RTA declining an application filed by the 1st respondent for conversion of his service from a Limited Stop Ordinary Service (LSOS) to Fast Passenger Service. The grounds of challenge raised in the other writ petitions are also identical. Therefore, they have been heard together and are being disposed of by a common judgment. I will refer to the facts in W.P.(C). 14782/2009 and discussion therein will govern the other writ petitions also. 2. 1st respondent herein is the owner of a stage carriage bearing registration No.KL-05/S 3979. He had obtained a permit for the vehicle as Limited Stop Ordinary Service and is operating on the strength of the said permit on the route Chemmannur – Kottayam. The route has a length of 157 Kms. W.P.(C).14782/09 & Connected Cases 2 3. The permit holder filed an application before the RTA, Idukki, the 2nd respondent, for conversion of the service as Fast Passenger Service. By Ext.P1 order, the RTA rejected the application for the following reasons. (i).The conversion of ordinary service to higher class (FP) without changing the existing facility will adversely affect the travelling public (ii).The students will be avoided and the existing commuters have to pay higher fare. (iii).The permit holder has the liberty to modify the route by curtailing route length to 140 Kms in compliance with rule 2(oa). (iv).The route objectionably overlaps the notified routes Ernakulam – Thekkady and Kottayam – Kattappana published vide notification No.6122/B1/Trans dated 15.9.2008 and as per clause 4 and 19 of the said notification, the existing permits on the route shall continue till the date of expiry and the right to operate fresh service and increase trips is exclusively reserved for STU. W.P.(C).14782/09 & Connected Cases 3 4. Permit holder challenged Ext.P1 before the State Transport Appellate Tribunal in a revision under Section 90 of the Kerala Motor Vehicles Act. Petitioner was also a party to the said revision. Tribunal held that the route length exceeds 140 Kms and therefore, the operation of the service as ordinary service or LSOS is in violation of Rule 2(oa) of the Kerala Motor Vehicles Rules. As per Rule 2(oa) of the Rules, the facility of Fast Passenger Service can be extended to a route having a distance upto 160 Kms. The route length in the present case is 157 Kms. It was found that the objection regarding scheme violation was not available while considering the request for conversion of service depending on the route length. There are other ordinary services on the route to cater to the needs of the short distance passengers. Tribunal therefore, allowed the revision and directed the RTA to grant the conversion of service as prayed for by the petitioner subject to settlement of timings. This has been challenged in the writ petition. 5. A detailed counter affidavit has been filed by the W.P.(C).14782/09 & Connected Cases 4 Operator supporting the impugned order. I heard Mr.Johnson P.John, learned counsel for the KSRTC, Mr.Gopinathan Nair, Mr.Deepak and Mr.Fayaz, learned counsel for the operators as also the learned senior Government Pleader. 6. Learned counsel for the Corporation submits that the Tribunal had allowed the plea for conversion of LSOS into Fast Passenger Service merely going by the route length. Tribunal ought to have considered the other aspects also. That the Tribunal should have found that the conversion of Ordinary service to a higher class (Fast passenger service) without changing the existing facility will adversely affect the travelling public. Further ordinary service would be catering to the interest of the students and other travelling public and the existing commuters will have to pay higher fare. Other reasons cited by the RTA that the route objectionably overlaps the notified route should have also been taken into account by the STAT, contends the learned counsel for the petitioner. W.P.(C).14782/09 & Connected Cases 5 7. Learned counsel for the petitioner also relies on the judgment of a Bench of this Court in State of Kerala v. Sebastian (1995 (1) KLT 421) wherein it was noted that the Government had not fixed any guideline in the form of Rules prescribing requirements of the 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 Fast Passenger, Express etc., depending on the route length by the transport authority and this would not only lead to arbitrary decisions but will also enable the permit holders to realise higher fare without providing any additional amenity to the travelling public. Government was therefore, directed to determine the amenities to be maintained by the vehicles which are to be granted permits for plying as Fast Passenger, Super Fast etc. It was pointed out that the principle on the basis of which such directions are issued by the Division Bench in Sebastian, have not been kept in mind by the STAT while passing the order impugned. Reference was made to Ext.P3 judgment by a learned Judge of this Court interfering with the order passed by the STAT directing conversion of an W.P.(C).14782/09 & Connected Cases 6 Ordinary bus service into Fast Passenger service and Ex.P4 judgment of the Division Bench which had affirmed Ext.P3. Reference was also made to Ext.P5 judgment which had upheld the validity of certain amendments to the Kerala Motor Vehicles Rules effected in the year 1999 (except as regards the definition of 'fleet owner'). It was contended that the route length alone should not have been determinative of the question as to whether a conversion of an Ordinary service into a Fast Passenger should be granted or not. 8. Per contra learned counsel for the permit holders contended that none of the objections mentioned in the orders passed by the respective RTAs were relevant or sustainable. Admittedly, the route length in the present case is in excess of 140 Kms and therefore, application for conversion into a Fast Passenger service was in consonance with the definition of an Ordinary service and Fast Passenger service as defined in Rule 2(ea) and 2(oa) of the Kerala Motor Vehicles Rules brought in by the amendment in 1999. Since the route length in the present cases have exceeded 140 Kms, service cannot any longer be operated as an W.P.(C).14782/09 & Connected Cases 7 Ordinary service and it is therefore, that they sought for conversion as a Fast Passenger service. 9. State of Kerala v. Sebastian was rendered at a point of time when Fast Passenger service or even Ordinary service as such was not defined under the Motor Vehicles Rules. Nor did the Rules contain any prescription regarding any conditions that were to be complied with by a stage carriage operating as a Fast Passenger, Express etc. It was pursuant to a direction issued in Sebastian that Rules were amended in the year 1999. Therefore, the direction laid down in Sebastian do not in any manner stand in the way of conversion of an Ordinary service into a Fast Passenger service where the route length exceeds 140 Kms and is below 160 Kms. 10. So also Exts.P3 and P4 judgments were rendered prior to the amendment of the Motor Vehicles Rules in 1999. The observations made therein have no application subsequent to the amended Rules. W.P.(C).14782/09 & Connected Cases 8 11. The conversion of an Ordinary service into a Fast Passenger service is essentially related to the definition of the two services, as contained in the Rules. Rule 2(ea) and 2(oa) defining Fast Passenger and Ordinary service are extracted herein. Rule 2(ea) “Fast Passenger Service” means a service, which is operated by fleet owner, with limited stops on a route, having a distance of not less than 70 Kms., and not more than 160 Kms. Rule 2(oa) “Ordinary Service” means a service, which is operated on a route having a distance of not more than 140 Kms, with one or more stops in every fare stage. 12. The stage carriages involved in these cases have been operating as Ordinary services and permits were issued prior to the amendment of the Rules in the year 1999. As stated above, neither a Fast Passenger service nor a luxury service, Super Deluxe service or Super Express service were the terms defined in the statute prior to the amendment in the W.P.(C).14782/09 & Connected Cases 9 year 1999. It was therefore, that permits were being issued for Ordinary services and other services without there being any statutory guidelines in that regard. It was this situation where there was absence of any statutory prescription, that was taken note of in Sebastian and taking note of the huge potential for arbitrary and capricious decisions being taken by the transporting authorities under the Act in the matter of grant of permits for services under different categories that the Bench had in Sebastian directed that permits shall not be issued for Fast Passenger service, Express, Deluxe or Super Deluxe service unless Rules were framed by the Government in that behalf, taking into account the additional amenities that may have to be provided or conditions that will have to be complied with by the permit holders requiring permission to operate service as Fast Passenger, Express, Deluxe etc. It is an irrefutable fact that the amendment to the Rules in 1999 is in consequence of the directions so issued by this Court in Sebastian. Division Bench of this Court had, in Ext.P5 judgment also, specifically referred to and affirmed the said fact. It is also relevant to note in this context that the validity of the Motor Vehicles amendment Rules of 1999 W.P.(C).14782/09 & Connected Cases 10 including classification of the service into Ordinary service, Fast Passenger service, etc., was also questioned by various operators before this Court and it ultimately led to Ext.P5 judgment of the Division Bench wherein the Rules as such, but for the definition of 'fleet owner', were upheld. Decisions taken by the STAT that have been impugned in these writ petitions will have to be considered in the above background. 13. The definition of ordinary service and Fast Passenger service as contained in Rule 2(ea) and 2(oa) of the Rules shows that the Ordinary service means a service which is operated on the route having a distance of not more than 140 Kms. Where therefore, the route length exceeds 140 Kms, the continued operation of the service as an Ordinary service would be in violation of Rule 2(oa) of the Rules. A continued service in such a case as an Ordinary service would require curtailment of the route so as to bring it within 140 Kms. 14. What has been done in the instant cases by the permit holders is to seek endorsement of their service as a Fast W.P.(C).14782/09 & Connected Cases 11 Passenger service which as statutorily defined has a route having a distance of not less than 70 Kms and not more than 160 Kms. The route length in the present case is more than 70 Kms and less than 160 Kms. The request made by the operators to treat their service as Fast Passenger service is in consonance with the statutory definition of a 'Fast Passenger service' under the Rules. In fact, a conversion of these routes from Ordinary service into Fast Passenger service is necessary to effect compliance with the Rules as such. 15. It may also have to be observed in this context that though Fast Passenger service is defined as service which is operated by a fleet owner, such part of the definition is liable to be eschewed from consideration, since a Bench of this Court had in Ext.P5 judgment declared the definition of 'fleet owner' as unconstitutional. Rule making authority has not thereafter, taken any steps to bring about a different definition of 'fleet owner', though such a response was clearly possible as observed by the Division Bench itself in Ext.P5 judgment. Thus, eschewing the words 'fleet owner' from the definition of 'Fast Passenger service' as contained in Rule 2 W.P.(C).14782/09 & Connected Cases 12 (ea) of the Rules, it could be seen that statutorily service on a route having a length more than 70 Kms and less than 160 Kms and with limited stops are not only eligible but also liable to be treated as Fast Passenger service. In these circumstances, the applications filed by the operators in the instant cases for conversion of their Ordinary service into a Fast Passenger service were clearly maintainable. In fact, such conversion was called for in the light of the amended Motor Vehicles Rules. 16. Learned counsel for the Corporation Mr.Johnson submits that a mere definition of 'Ordinary service' and a 'Fast Passenger service' cannot be treated as sufficient to order conversion going by the directions issued by the Bench of this Court in Sebastian since amended Rules do not contemplate or provide for any additional facilities to be provided or additional conditions to be complied with, by an operator, operating a Fast Passenger service. Learned counsel for the respondents submits that this is not so going by Rule 260A of the Rules which provides for special provisions applicable to a stage carriage permitted to be W.P.(C).14782/09 & Connected Cases 13 operated as certain classes of services. Rule 260A reads as follows. Rule 260A. Special provisions applicable to a stage carriage permitted to be operated as certain classes of services – A stage carriage older than five years from the date of its registration shall not be permitted to be operated as fast passenger service and a stage carriage older than three years from the date of its registration shall not be permitted to be operated as Super fast service and a stage carriage older than two years, from the date of its registration shall not be permitted to be operated as a Luxury service, a deluxe service or a Super express service. 17. I find force in the submission. Obviously a stage carriage older than five years from the date of its registration cannot be permitted to be operated as Fast Passenger service and the permit holders in the instant cases will obviously have to produce vehicles less than five years old, to operate as Fast Passenger service. Mr.Johnson submitted that the interest of the travelling public would be affected if the services which have been operating as W.P.(C).14782/09 & Connected Cases 14 Ordinary services are converted as Fast Passenger services. Students and other persons travelling short distance will be affected, it is contended. 18. What is to be noted is that these buses traverse a distance of more than 140 Kms. It is not reasonable to assume that commuters of travelling public travelling short distance would prefer to travel by such long distance services. If they nevertheless prefer to do so, then there is nothing unreasonable about requiring them to pay higher fare, to travel in such buses which obviously would take only a shorter time to cover the same route, since the number of stops over the same distance would be lesser in the case of Fast Passenger services. Again, as rightly pointed out by the learned counsel for the petitioners, present services are Limited Stop Ordinary Services and its conversion into Fast Passenger Services does not mean that the stops would also change. Learned counsel for the petitioner contends that it would always be open to the permit holder operating an Ordinary Service to curtail the route length to bring it within 140 Kms and thereby comply with the amended Rules. It is W.P.(C).14782/09 & Connected Cases 15 not open to the Corporation to insist that an operator, operating service with the route length in excess of 140 Kms on the strength of a permit which was issued prior to the amendment of Motor Vehicles Rules effected in the year 1999, to curtail its route length for the purpose of operating the service as an Ordinary service. In fact conversion of the Ordinary service operating over a distance of more than 140 Kms, but less than 160 Kms into a Fast Passenger service is only an action taken to confirm to the Rules as amended in the year 1999. 19. Further objection stated by the RTA regarding Scheme violation, is clearly not available while considering the request for conversion of the service depending on the route length as rightly held by the STAT. 20. For all these reasons, I am of the view that the objections raised by the Corporation against the impugned order of the STAT are neither tenable nor sustainable. But there is one aspect which, in my view, requires to be considered by the RTA before endorsing conversion of the W.P.(C).14782/09 & Connected Cases 16 service and proceeding to settle the timings as already directed by the STAT. One of the objections which has been taken by the RTA is the possible detriment that would be caused to the travelling public especially the students if the existing services which have been operating for a long number of years suddenly decide to stop only at fewer points. In the circumstances, RTA shall consider whether the services operated by the permit holders in these cases should be required to stop at more number of points, in exercise of its powers under Rule 206 of the Rules. If the stops abided by the services being operated by the permit holders in the instant cases are sufficient to satisfy the needs of the travelling public, then no further variation is called for, for endorsing the conversion from Ordinary service into a Fast Passenger service. But if more stops are found to be necessary then, it shall be open to the RTA to stipulate that such stops are also to be included in the route being operated by the permit holders in the present case and obviously settlement of timings on conversion, will take into account such stops also. But this is a matter that will have to be considered by the respective RTA. W.P.(C).14782/09 & Connected Cases 17 21. For all these reasons mentioned above, I am of the view that the orders passed by the STAT and impugned in these writ petitions do not warrant any interference, subject to the direction issued herein in the immediately preceding paragraph. Writ petitions are therefore dismissed subject to the above observations and directions. V.GIRI, Judge mrcs