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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Thottathil B.Radhakrishnan, J .
R.MOHANKUMAR - Appellant
Vs.
THE GOVERNMENT OF KERALA - Respondent
W.A.Nos.667, 666, 668, 670, 671, 700, 771, 772, 773, 774, 804, 818, 851, 859, 878, 890, 895, 879, 912, 1066, 1156, 1185, 1367, 1376, 1378, 1390, 1471, 1475, 1480, 1481, 1491, 1518, 1567, 1625, 1676, 1700, 1720, 1722 & 1735 of 2014 and W.P.(C).No.14421 of 2014
Decided on : 5-02-2016
Constitution of India, 1950 - Art. 31B -Motor Vehicles Act 1988 - S. 99 - Temporary permits - Challenging constitutional validity of Chapter IV A of the 1959 Act - Whether private operators, in the governmental decision-making process leading to the approval of the draft Scheme - Whether constitutional scheme of the relevant statute would be impermissible for the writ court, or any other judicial authority - Whether STC apply for grant of permit through any route which is a notified route or covered by a Scheme - Whether Regional Transport Authority to act on any application for grant of temporary permit to the private operators over such routes - Challenged - Held, The 1988 Act; much less Chapter VI or S.99 therein; is not included in the Ninth Schedule to the Constitution. Obviously therefore, no plea that those provisions are insulated by specific incorporation into that Schedule to be protected under Article 31B can be countenanced. Merely because of the fact that the cognate provisions of the 1939 Act were immune from attack with regard to their constitutionality on the application of Article 31B, the impugned provision in Chapter VI of the 1988 Act does not get such insulation on a parity of reasoning relatable to similar provisions in the subsequent statute - Any new statute in the form of an Act or Regulation which, as its result, supersedes an existing statute, by way of repeal or otherwise; into a statute which is protected under Article 31B by reason of its inclusion in the Ninth Schedule; would not carry with it the protective canopy of Article 31B of the Constitution - 99 do not infract Article 14 and is not unconstitutional - There is no arbitrary, perverse, or capricious exercise of administrative power in defeasance of the constitutional rights, including fundamental rights, of the private operators, in the governmental decision-making process leading to the approval of the draft Scheme - Once the power to make a Scheme is demonstrated to be available in terms of the constitutional scheme of the relevant statute, it would be impermissible for the writ court, or any other judicial authority for that matter, to visit any Scheme formulated and issued by the competent authority in terms of the statutory provisions - If the STC does not apply for grant of permit through any route which is a notified route or covered by a Scheme, temporary permits can be granted to the private operators based on temporary need and if there are routes for which permits have been granted to the STC in relation to notified routes or notified areas and if the STC is not utilising the permit by operating the services, it will be open to the Regional Transport Authority to act on any application for grant of temporary permit to the private operators over such routes.
Thottathil B.Radhakrishnan, J .
1. These matters relate to public transport licensing and priorities in favour of public sector. The challenge is levied by the private operators.
2. The captioned writ appeals arise from a common judgment in different writ petitions which were heard together. One set of appeals is by the operators of private stage carriages, for short, the "private operators". The other set of appeals is by either the Government of Kerala, for short; "GOK", or the Kerala State Road Transport Corporation; "STC", for short. The tagged along solitary writ petition is filed by a private operator challenging the constitutional validity of section 99 of the Motor Vehicles Act, 1988; for short, the "1988 Act". Under challenge in that writ petition is also the Scheme finalized under the provisions of Chapter VI of that Act; the "Scheme", for short; which Scheme was also the subject matter of the writ petitions from which the writ appeals arise. The writ petition and the writ appeals also relate to the challenge by the private operators against certain amendments to the Kerala Motor Vehicles Rules, 1989, for short, the "Rules". The learned single Judge upheld the Scheme, but declared that certain definition clauses in Chapter V of the Rules are invalid to the extent they result in the exclusion of private operators from operating certain classes of vehicles and amount to creating monopoly in favour of the STC for such classes of vehicles, through the process of the amendment to the Rules.
3. Attacking the validity of section 99 of the 1988 Act, the learned senior counsel for the petitioner in the captioned writ petition argued that the legislative competence to enact a statute in the nature of the 1988 Act is within the domain of the Concurrent List in the Seventh Schedule to the Constitution, and therefore, the embedded power in section 99 of the 1988 Act is essentially an authority to create a monopoly in favour of an STU, which is not conceived by the constitutional distribution of legislative power. It is therefore argued that section 99 of the 1988 Act is ultra vires the Constitution. Leading this argument forward, it is pointed out that the consequential impugned Scheme is extra- constitutional from its inception, in the light of the plea of the writ petitioner.
4. In answer to the aforesaid, the learned counsel on behalf of GOK argued, firstly, that section 99 of the 1988 Act is immune from challenge to its validity in view of Article 31B of the Constitution; having regard to the inclusion of the provisions of Chapter IV A of the 1939 Act in the Ninth Schedule to the Constitution, inasmuch as the impugned section 99 of the 1988 Act is in that Chapter of the 1988 Act which corresponds to Chapter IV A of the 1939 Act. He also argued that the challenge sought to be levied as to the validity of section 99 of the 1988 Act is unsustainable inasmuch the legislative competence of the Parliament to make such a law being there, the provisions in Chapter VI of the 1988 Act, which are Special Provisions relating to State Transport Undertakings, stand with the support of Article 19(6) because such provisions have been made in the interest of the general public and they are only reasonable restrictions which relate to matters that would fall under Article 19(6)(ii) of the Constitution. He thus argued that the challenge to the validity of section 99 of the 1988 Act is only to be repelled.
5. The substance of the arguments by the learned advocates appearing on behalf of the private operators, including the senior advocate for the petitioner in the captioned writ petition, is that the impugned Scheme is made in infraction of section 99 of the 1988 Act and that it is the result of concerted efforts to deprive the private operators of their due participation in plying stage carriage vehicles in public interest. The ultimate plea is that the impugned Scheme results in infraction of the equality doctrine, as would apply in the s
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