Dismissed

Motor Vehicle Operators Association (KERALA0 State Committee v. Government of Kerala

Kerala HC30 Oct 2018WP(C)/8803/2018

Case brief

AI extract

What is this about?

Mandatory door shutters for town and city buses were challenged by private operators. The court upheld the amended rules and enforcement proceedings, rejected statutory and constitutional objections, and dismissed the petitions. It directed police and transport authorities to enforce shutter requirements and initiate proceedings against specified unsafe practices.

What did the court decide?

Police and transport authorities directed to enforce door shutters and initiate proceedings for removed or tied shutters and opening or closing shutters while buses are moving.

Motor Vehicle Operators Association… — Constitutional and Fundamental Rights | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY, THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940

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WP(C).No. 21920 of 2016

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PETITIONERS:

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1 KERALA BUS TRANSPORT ASSOCIATION

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[REG.NO.TCR 710/2006], DOOR NO.35/1085, 4,5 M.K.K NAYAR ROAD, PALARIVATTOM, KOCHI 682 025, REPRESENTED BY ITS SECRETARY, K.M.NAVAS.

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2 GAFOOR P.A PATTIYAMCHERY HOUSE,EDAPPALLY P.O, KOCHI 682 024.

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BY ADV. SRI.P.DEEPAK

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RESPONDENTS:

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1 THE GOVERNMENT OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF TRANSPORT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001.

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2 THE TRANSPORT COMMISSIONER TRANS TOWERS, THIRUVANANTHAPURAM 695 001.

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SRI P.SANTHOSH KUMAR, SPECIAL GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.08.2018, ALONG WITH W.P.(C)Nos.21924 and 22032 of 2016, 36987 of 2017 and 8803 of 2018, THE COURT ON 30.10.2018 DELIVERED THE FOLLOWING:

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -2-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY ,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940

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WP(C).No. 21924 of 2016

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PETITIONERS:

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1 THE KERALA STATE PRIVATE BUS OPERATORS FEDERATION

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REG.NO.609/1993), CAMP OFFICE, ANANDAVALLESHWARAM,KOLLAM-9, REPRESENTED BY ITS GENERAL SECRETARY,LAWRENCE BABU.

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2 K.B. SUNIR PUTTINGAL HOUSE, PADAMUGAL, KAKKAND, ERNAKULAM.

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BY ADV. SRI.P.DEEPAK

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RESPONDENTS:

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1 GOVERNMENT OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE TRANSPORT COMMISSIONER TRANS TOWERS, THIRUVANANTHAPURAM-695001.

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SRI P.SANTHOSH KUMAR, SPECIAL GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.08.2018, ALONG WITH W.P.(C)Nos.21920 and 22032 of 2016, 36987 of 2017 and 8803 of 2018, THE COURT ON 30.10.2018 DELIVERED THE FOLLOWING:

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -3-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY ,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940

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WP(C).No. 22032 of 2016

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PETITIONERS:

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1 ERNAKULAM DISTRICT BUS OPERATORS' ORGANIZATION AGED 55 YEARS

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NO. XXI/598, F1, N.S.S.KARAYOGAM BUILDING, NEAR MUNICIPAL BUS STAND, TRIPPUNITHURA REG.NO.PGT-642/99),REPRESENTED BY ITS GENERAL SECRETARY, K.S.RAJAN.

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2 N.A.SADANANDAN NERISSERANTHARA HOUSE, PUTHUKALAVATTOM, ELAMAKKARA, ERNAKULAM (S/C KL 7/AN 7189).

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BY ADV. SRI.G.PRABHAKARAN

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RESPONDENTS:

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1 THE GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT MINISTRY OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE TRANSPORT COMMISSIONER TRANS TOWERS, THIRUVANANTHAPURAM-695001.

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SRI P.SANTHOSH KUMAR, SPECIAL GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.08.2018, ALONG WITH W.P.(C)Nos.21920 AND 21924 of 2016, 36987 of 2017 and 8803 of 2018, THE COURT ON 30.10.2018 DELIVERED THE FOLLOWING:

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY, THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940

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WP(C).No. 36987 of 2017

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PETITIONERS:

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1 KOCHI WHEELZ UNITED LLP

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(REG. NO.AA1-2793), EDAYADIL BUILDING, DOOR NO.L-4, THRIPUNITHURA, REPRESENTED BY ITS DESIGNATORY PARTNER SRI. K. M. NAVAS, KARPPAI HOUSE, THAIKKATTUKKARA P.O., ALUVA.

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2 GAFOOR P. A. PATTIYAMCHERY HOUSE, EDAPPALLY P.0., KOCHI682024.

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BY ADV. SRI.P.DEEPAK

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RESPONDENTS:

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1 GOVERNMENT OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001.

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2 THE TRANSPORT COMMISSIONER TRANS TOWERS, THIRUVANANTHAPURAM 695001.

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3 THE REGIONAL TRANSPORT AUTHORITY ERNAKULAM 682030.

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4 THE SECRETARY REGIONAL TRANSPORT AUTHORITY, ERNAKULAM 682030.

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -5-

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W.P.(C)No. 36987/2018

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ADDL. ADDL.R5 ADDED: R5 ERNAKULAM PRIVATE BUS OPERATORS ASSOCIATION WITH ITS REGISTRATION NO.TCR 609/93, 408, ASSOCIATION BUILDING, PALARIVATTOM JUNCTION, KOCHI-682025, REPRESENTED BY ITS SECRETARY. (ADDL.R5 IMPLEADED AS PER ORDER DATED 21.2.2018 IN I.A.No.3106/2018) BY ADVS. R1 TO R4 BY SRI P.SANTHOSH KUMAR, SPECIAL GOVERNMENT PLEADER ADDL.R5 BY SRI.G.PRABHAKARAN SRI.K.T.RAVEENDRAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.08.2018, ALONG WITH W.P.(C)Nos.21920, 21924 AND 22032 of 2016, and 8803 of 2018, THE COURT ON 30.10.2018 DELIVERED THE FOLLOWING:

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -6-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940

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WP(C).No. 8803 of 2018

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PETITIONERS:

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1 MOTOR VEHICLE OPERATORS ASSOCIATION (KERALA) STATE COMMITTEE (REGN.NO.EKM/TC/527/2016), REPRESENTED BY ITS PRESIDENT BIJU JOHN, AMBADAMKUZHY LANE VYTILA P.O.

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2 ABDUL HAKKIM K.K. S/O. KOCHUNNI, CUCKOO VILLA, KOLLAMPARAMBIL, MANJUMMEL, ELOOR, N.PARAVOOR.

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BY ADV. SRI.PRASAD CHANDRAN

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RESPONDENTS:

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1 GOVERNMENT OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE TRANSPORT COMMISSIONER TRANS TOWERS, THIRUVANANTHAPURAM - 695 001.

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3 THE REGIONAL TRANSPORT AUTHORITY ERNAKULAM - 682 030.

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4 THE SECRETARY REGIONAL TRANSPORT AUTHORITY, ERNAKULAM - 682 030.

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SRI P.SANTHOSH KUMAR, SPECIAL GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.08.2018, ALONG WITH W.P.(C)Nos.21920, 21924 AND 22032 of 2016 AND 36987 of 2017, THE COURT ON 30.10.2018 DELIVERED THE FOLLOWING:

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -7-

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JUDGMENT

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The first petitioner in these writ petitions are registered associations of private bus operators in Kerala and the 2^nd petitioner in the respective writ petitions are members of those associations, who are holding stage carriage permits, which are operated as 'city service'. They have filed these writ petitions invoking writ jurisdiction of this Court under Article 226 of Constitution of India challenging certain amendments made to the Kerala Motor Vehicle Rules, 1989, whereby door shutters are insisted for stage carriages operating as city and town services. Since common issues are raised, these writ petitions were heard together and are being disposed of by this common judgment.

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2.1. W.P.(C)No.21920 of 2016:- The first petitioner, the Kerala

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Bus Transport Association, is a registered association of stage carriage operators in Kerala and the second petitioner is a member of that association, who is the holder of a regular permit on the route Aluva-Palluruthy, in respect of stage carriage bearing

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -8-

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registration No.KL-07/AK-4447, which is operated as 'city service'. The petitioners have filed this writ petition seeking a declaration that the Kerala Motor Vehicles (Second Amendment) Rules, 2016 is ultra vires the Motor Vehicles Act, 1988 in particular clause (x) of sub-section (2) of Section 72 of the said Act. The petitioners have also sought for a writ of mandamus commanding the first respondent State to finalise and approve Ext.P3 draft Rules, subject to modifications and in consistence with clause (x) of sub-section (2) of Section 72 of the Motor Vehicles Act, 1988. On 26.08.2016, when this petition came up for admission, learned Government Pleader took notice for the respondents and sought time to file counter affidavit. A Counter Affidavit has been filed by the first respondent opposing the reliefs sought for in this writ petition.

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2.2. W.P.(C)No.21924 of 2016:- The first petitioner, the

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Kerala State Private Bus Operators Federation, is a registered association of stage carriage operators in Kerala and the second petitioner is a member of that association, who is the holder of a regular permit on the route Kakkanad-Konthuruthy, in respect of

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -9-

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stage carriage bearing registration No.KL-07/BF-6363, which is

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operated as 'city service'. The petitioners have filed this writ petition seeking the very same reliefs sought for in W.P. (C)No.21920 of 2016. On 26.06.2016, when this writ petition came up for admission, the learned Special Government Pleader took notice for the respondents and sought time to file counter affidavit. The learned Special Government Pleader has filed a memo dated 27.06.2018 adopting the counter affidavit filed in W.P.(C)No.21920 of 2016 as the counter affidavit in this writ petition.

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2.3. W.P.(C)No.22032 of 2016:- The first petitioner, the

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Ernakulam District Bus Operators Organisation, is a registered association of stage carriage operators in Kerala and the second petitioner is a member of that association, who is the holder of a regular permit on the route Elamakkara-Chottanikkara, in respect of stage carriage bearing registration No.KL-07/AN-7189, which is operated as 'city service'. The petitioners have filed this writ petition seeking the very same reliefs sought for in W.P. (C)No.21920 of 2016. On 26.08.2016 when this petition came for

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -10-

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admission the learned Government Pleader took notice for the respondents and sought time to file counter affidavit. The learned Special Government Pleader has filed a memo dated 27.06.2018 adopting the counter affidavit filed in W.P.(C)No.21920 of 2016 as the counter affidavit in this writ petition.

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2.4. W.P.(C)No.36987 of 2017:- The first petitioner, the Kochi Wheelz United LLP, is an association of stage carriage operators in Kochi incorporated under the provisions of the Limited Liability Partnership Act, 2008 and the second petitioner is a member of that association, who is the holder of a regular permit on the route Aluva-Palluruthy, in respect of stage carriage bearing registration No.KL-07/AK-4447, which is operated as 'city service'. The petitioners have filed this writ petition seeking a writ of certiorari to quash Ext.P3 order of the Regional Transport Authority, Ernakulam dated 23.09.2017; a writ of mandamus or such other order or direction interdicting the respondents from enforcing Ext.P2 notification, i.e., the Kerala Motor Vehicles (Second Amendment) Rules, 2016 till finalisation of Ext.P4 draft Rules; and a declaration that the Kerala Motor Vehicles (Second

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018

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Amendment) Rules, 2016 is ultra vires Rule 125C of the Central

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Motor Vehicles Rules, 1989 and AIS-052 (Revision-1)-2008 as amended from time to time. On 17.11.2017, when this writ petition came up for admission, the learned Government Pleader took notice for the respondents. This Court granted an interim order, whereby further proceedings pertaining to Ext.P3 was stayed for a period of one month, confining the relief to the petitioner. The said interim order, which was extended from time to time, was in force till 23.03.2018. A Counter affidavit has been filed by the first respondent opposing the reliefs sought for in this writ petition.

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2.5. W.P.(C)No.8803 of 2018:- The first petitioner, the

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Motor Vehicles Operators Association (Kerala), is a registered association of stage carriage operators in Kerala and the second petitioner is a member of that association, who is the holder of a regular permit on the route Thevara Ferry-Eloor, in respect of stage carriage bearing registration No.KL-42/333, which is operated as 'city service'. The petitioners have filed this writ petition seeking the very same reliefs sought for in W.P.

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -12-

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(C)No.36987 of 2017. On 16.03.2018, when this writ petition came for admission, the learned Government Pleader took notice

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for the respondents and this Court granted an interim order, whereby further proceedings pertaining to Ext.P3 was stayed for a period of one month, confining to the petitioner. On 20.04.2018, the said interim order was revived and extended for a period of two months. The learned Special Government Pleader has filed an adoption memo dated 27.06.2018, adopting the counter affidavit filed in W.P.(C)No.36987 of 2017 as the Counter affidavit in this writ petition.

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Heard the learned counsel for the petitioners in the respective writ petitions and also the learned Special Government Pleader for the respondents.

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The Motor Vehicles Act, 1988 (for brevity, 'the MV Act') was enacted by the Parliament to consolidate and amend

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the law relating to motor vehicles, namely, the Motor Vehicles Act, 1939 to take into account, inter alia , the need for encouraging adoption of higher technology in automotive sector; laying down standards for the components and parts of motor

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -13-

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vehicles; concern for road safety standards and pollution control measures, standards for transportation of hazardous and explosive materials; etc. Clause (40) of Section 2 of the MV Act define the term 'stage carriage' to mean a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey.

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Chapter V of the MV Act deals with registration of vehicles. Section 56 of the MV Act deals with certificate of fitness of transport vehicles. As per sub-section (1) of Section 56, subject to the provisions of Section 59 (which deals with power to fix age limit of motor vehicles) and Section 60 (which deals with registration of vehicles belonging to the Central Government), a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018

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authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of the MV Act and the rules made thereunder.

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Chapter VI of the MV Act deals with control of transport vehicles. Section 70 of the MV Act deals with application for stage carriage permit and Section 71 deals with procedure of Regional Transport Authority in considering application for stage carriage permit. Section 72 deals with grant of stage carriage permit. As per sub-section (2) of Section 72, the Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under the MV Act, attach to the permit any one or more of the conditions enumerated in clauses (i) to (xxiv) of sub-section (2). As per clause (x) of sub-section (2) of Section 72 of the Act, one of the conditions that can be attached to a stage carriage permit is that vehicles of a specified type fitted with body conforming to approved specifications shall be used, and as per the proviso to clause (x), the attachment of such condition to a

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -15-

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permit shall not prevent the continued use for a period of two years from the date of publication of the approved specification, if any vehicle operating on that date. Section 84 of the Act deals with the general conditions attached to all permits. Section 86 of the Act deals with cancellation and suspension of permits. As per sub-section (1) of Section 86, the transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit for any of the reasons enumerated in clauses (a) to (f) of sub-section (1).

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Section 95 of the MV Act deals with the power of State

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Government to make rules as to stage carriages and contract carriages. As per sub-section (1) of Section 95, a State Government may make rules to regulate, in respect of stage carriages and contract carriages and the conduct of passengers in such vehicles. As per sub-section (2) of Section 95, without prejudice to the generality of the provisions under sub-section (1), such rules may deal with the matters enumerated in clauses (a) to (i) of sub-section (2). Section 96 of the Act deals with the

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power of State Government to make rules for the purpose of

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -16-

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Chapter VI of the said Act, which deals with control of transport vehicles. As per sub-section (1) of Section 96, a State Government may make rules for the purpose of carrying into effect the provisions of Chapter VI of the Act. As per sub-section (2) of Section 96, without prejudice to the generality of the power under sub-rule (1), rules under Section 96 may be made with respect to all or any of the matters enumerated in clauses (i) to (xxxiii) of sub-section (2). As per clause (xiv), the State Government may make rules with respect to the construction and fittings of, and the equipment to be carried by, stage and contract carriages, whether generally or in specified areas.

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Chapter VII of the MV Act deals with construction, equipment and maintenance of motor vehicles. Section 109 of the Act deals with general provision regarding construction and maintenance of vehicles and Section 110 deals with power of Central Government to make rules. As per sub-section (1) of Section 110, the Central Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all or any of the matters enumerated

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in clauses (a) to (p) of sub-section (1). Section 111 of the Act deals with power of State Government to make rules. As per subsection (1) of Section 111, a State Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all matters other than the matters specified in sub-section (1) of Section 110.

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The Central Motor Vehicles Rules, 1989 (for brevity, 'CMV Rules') made by the Central Government, in exercise of its rule making power under the relevant provisions of the MV Act was published vide notification dated 02.06.1989. Rule 62 of the CMV Rules deals with validity of certificate of fitness. As per subrule (1) of Rules 62, a certificate of fitness in respect of a transport vehicle granted under section 56 shall be in Form 38 and such certificate when granted or renewed shall be valid for the period specified in clause (a) to (d) of sub-rule (1). As per clause (a) of sub-rule (1), the certificate of fitness in respect of a new transport vehicle shall be valid for two years. As per the proviso to sub-rule (1) of Rule 62, the renewal of a fitness certificate shall be made only after the inspecting authority or

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authorised testing station as referred to in sub-section (1) of

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Section 56 of the MV Act has carried the tests specified in the Table given in Rule 62. The certificate of fitness of a transport vehicle issued in Form No.38 contains a certification by the inspecting authority or the authorised testing station that the vehicle complies with the provisions of the MV Act and the rules made thereunder.

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Chapter V of the CMV Rules deals with construction, equipment and maintenance of motor vehicles. As per sub-rule (1) of Rule 92, no person shall use or cause or allow to be used in any public place any motor vehicle which does not comply with the provisions of Chapter V. As per the proviso to sub-rule (1), nothing contained in Rule 92 shall apply to vehicles manufactured prior to the coming into force of the Central Motor Vehicles (Amendment) Rules, 1993. As per sub-rule (2), nothing in Rule 92 shall apply to a motor vehicle enumerated in clause (a) to (c).

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Rule 125C of the CMV Rules deals with body building and approval. As per sub-rule (1) of Rule 125C, on and after the 1^st day of October, 2014, the testing and approval for body

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building of new models of buses with seating capacity of 13 or more passengers excluding driver shall be in accordance with AIS: 052 (Revision-1) 2008 as amended from time to time, for vehicles mentioned therein, till corresponding BIS specifications are notified under the Bureau of Indian Standards Act, 1986. As per the first proviso to sub-rule (1), the provisions of this rule shall be implemented in two phases. In first phase, the provisions of AIS: 052 (Revision-1) 2008 excluding the parameters and requirements given in Table-1 below the first proviso shall be applicable on and after 1^st day of January, 2017. In second phase, the provisions of AIS: 052 (Revision-1) 2008, as amended from time to time, and the parameters and requirements given in Table-1 below the first proviso shall be applicable on and after the 1^st day of January, 2018. Sub-rule (2) of Rule 125C deals with school buses; sub-rule (3) deals with goods vehicles of Category N2 and of Category N3; sub-rule (4) deals with sleeper coaches; and sub-rule (5) deals with double decker buses.

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Rule 128 of the CMV Rules deals with special provision

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for tourist vehicles other than motor cabs, etc. As per Rule 128, a

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018 -20-

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tourist vehicle other than motorcab, taxicab, campers van house trailer, shall conform to the specifications enumerated in subrules (1) to (13). Sub-rule (3) of Rule 128, which deals with passenger entrance and exit, provides that the passenger entrance-cum-exit door shall be located on the left side of the vehicle and minimum door width shall be 685 mm. The door handle should be capable of being handled from inside as well as from outside. The door may be operated pneumatically or hydraulically or electrically with suitable locking devices.

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The Kerala Motor Vehicles Rules, 1989 (for brevity, 'the KMV Rules') made by the State Government, in exercise of its rule making power under the relevant provisions of the MV Act was published vide notification dated 25.07.1989. Chapter VII of the KMV Rules deals with construction, equipment and maintenance of motor vehicles. As per sub-rule (1) of Rule 249, no person shall use and no person shall cause or allow to be used or to be in any public place any motor vehicle which does not comply with the rules contained in Chapter VII or with any order thereunder made by the competent authority. As per Rule 261,

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the body of every transport vehicle shall be soundly constructed

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and securely fastened to the frame of the vehicle and in accordance with the specifications, if any, laid down by the State or Regional Transport Authority. Rule 277 of the KMV Rules, which deals with body of stage carriage, provides that, save as otherwise permitted by the State or Regional Transport Authority, every stage carriage shall have a body of the saloon type.

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Rule 280 of the KMV Rules deals with entrance and exist. Rule 280, as it stood prior to its amendment by the Kerala Motor Vehicles (Second Amendment) Rules, 2016 reads thus;

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“280. Entrance and exit.- (1) Every stage carriage shall be provided with two doors, one at the front and the other at the rear of the left hand side of the body, having at least sixty-three centimetres width and sufficient height.

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Provided that this rule shall not apply to stage carriages with wheel base up to and including 407 centimeters.

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(2) Every door of a stage carriage shall be provided with shutters which can be opened outward from inside as well as outside, except in the case of town and city services.

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(3) On both sides of every door in a stage carriage there shall be provided a partition wall upto a height of

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eighty-five centimetres from the floor of the vehicle.

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(4) Every stage carriage shall be provided with an emergency exit in the form of a frame fixed with a safety glass with dimensions one hundred and fifty centimeters horizontally and one hundred and twenty centimeters vertically or in the form of a door with the same dimensions hinged at the top capable of being operated both from inside and outside. The emergency exit shall be fitted at the rear windscreen. The words "EMERGENCY EXIT" shall be prominently inscribed in red colour on a white background both inside and outside of the emergency exit:

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Provided that in the case of stage carriages with wheel base up to and including 407 centimetres the emergency exit shall be of the dimensions 120 centimetres horizontally and 100 centimetres vertically.

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(5) The provisions of this rule shall not so apply to a stage carriage registered before 1.8.2002 but shall apply when its body is reconstructed, at any time, subsequent to the above date.” (underline supplied)

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By the Kerala Motor Vehicles (Second Amendment)

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Rules, 2016, which came into force with effect from 01.07.2016, the words “except in the case of town and city services” stand omitted from sub-rule (2) of Rule 280 of the KMV Rules. Sub-rule

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(2) of Rule 280, after its amendment by the Kerala Motor

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Vehicles (Second Amendment) Rules, 2016 reads thus;

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“(2) Every door of a stage carriage shall be provided with shutters which can be opened outward from inside as well as outside.”

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As per the Kerala Motor Vehicles (Fourth Amendment)

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Rules, 2017 provisos were inserted in sub-rules (1), (2) and (4)

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of Rule 280 of the KMV Rules. The second proviso inserted in sub-rule (1) of Rule 280 reads thus;

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“Provided further that the doors provided in buses that are registered on or after the 1^st day of October, 2017 shall be in accordance with AIS: 052 (Revision-1) 2008 as amended from time to time.”

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The proviso inserted in sub-rule (2) of Rule 280 reads

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thus;

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“Provided that the shutters provided in buses that are registered on or after the 1^st day of October, 2017 shall be in accordance with AIS: 052 (Revision-1) 2008 as amended from time to time.”

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The second proviso inserted in sub-rule (4) of Rule

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280 reads thus;

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“Provided further that the emergency doors provided in buses that are registered on or after the 1^st day of October, 2017 shall be in accordance with AIS: 052 (Revision-1) 2008 as amended from time to time.”

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As already noticed, as per Rule 277 of the KMV Rules, save as otherwise permitted by the State or Regional Transport Authority every stage carriage shall have a body of the saloon type. The very concept of the saloon type body is a vehicle with doors. In none of these writ petitions, sub-rule (2) of Rule 280 of the KMV Rules as it stood prior to its amendment by the Kerala Motor Vehicles (Second Amendment) Rules, 2016, is not under challenge, which provides that every door of a stage carriage shall be provided with shutters which can be opened outward from inside as well as outside, except in the case of town and city services. The said provision introduced by the Kerala Motor Vehicles (Amendment) Rules, 2002 came into force with effect from 01.08.2002. Now, in exercise of the powers conferred by Section 96 of the MV Act, the State Government amended subrule (2) of Rule 280 of the KMV Rules, by the Kerala Motor Vehicle (Second Amendment) Rules, 2016, whereby the stage carriages operating as town and city services are also brought under the purview of sub-rule (2) of Rule 280, by omitting the words “except in the case of town and city services” from sub-

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rule (2) of Rule 280. The condition imposed by the said amendment is in the interest of the public at large, with a view to ensure safe and secure public transport facility to passengers, by reducing the chances of untoward incidents.

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In the counter affidavit filed on behalf of the 1^st respondent, it is pointed out that in Annexure-R1(a) order of a Division Bench of this Court dated 24.02.2010 in MACA No.1162 of 2004, the Government was directed to take immediate steps for amendment of the relevant rules, so that, stage carriages are operated with doors and with employees to man the doors. It is pursuant to the directions contained in that order that, the State Government made amendment to sub-rule (2) of Rule 280 of the KMV Rules by the Kerala Motor Vehicles (Second Amendment) Rules, 2016, whereby the words “except in the case of town and city services” in sub-rule (2) of Rule 280 stand omitted. In the explanatory note to the Kerala Motor Vehicles (Second Amendment) Rules, 2016, the object of the said amendment is noted as follows:-

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“It has come to the notice of the Government that lack of

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shutters in city and town service is causing accidents. Hence, the Government have decided to implement door shutters in city and town services also.”

¶187

Subsequent to the amendment made to Rule 280 of

¶188

KMV Rules by the Kerala Motor Vehicles (Second Amendment) Rules, 2016, the State Government, vide the Kerala Motor Vehicles (Fourth Amendment) Rules, 2017 inserted provisos to sub-rules (1), (2) and (4) of Rule 280. The said amendments were made, taking note of the provisions under sub-rule (1) of Rule 125C of the CMV Rules, which provides for compliance of the specification under AIS: 052 (Revision-1) 2008 as amended from time to time in phased manner in the matter of body building and approval of new models of buses with seating capacity of 13 or more passengers excluding driver. Therefore, the provisions under Rule 280 of the KMV Rules, after its amendment by the Kerala Motor Vehicles (Fourth Amendment Rules), 2017 provides for a different specification for stage carriages which are governed by Rule 125C of the CMV Rules, and the provisions under sub-rule (2) of Rule 280 of the KMV Rules, as amended by the Kerala Motor Vehicles (Second

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Amendment) Rules, 2016 are applicable in the case of stage

¶191

carriages which are not governed by the provisions under Rule 125C of the CMV Rules.

¶192

In M.C. Mehta v. Union of India [(1997) 8 SCC

¶193

770] a Three-Judge Bench of the Apex Court held that the existing provisions under the Motor Vehicles Act, 1989 alone are sufficient to clothe the members of the Police force and the transport authorities with ample powers to control and regulate the traffic in appropriate manner, so that no vehicle being used in a public place, poses any danger to the public in any form . The requirement of maintaining the motor vehicles in the manner prescribed and its use if road worthy in a manner, which does not endanger the public, has to be ensured by the authorities and this is the aim of the provisions enacted in the Motor Vehicles Act.

¶194

In Subhash Chandra v. State of U.P. [(1980) 2 SCC 324] the Apex Court held that the provisions under the Motor Vehicles Act, 1939 are geared for public safety and not private profit and casts a duty upon the authorities to protect

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Indian lives moving in buses, walking on roads or even standing

¶197

on margins. This aspect is exemplified on a bare perusal of the provisions of the Act, which makes it luminously clear that the Act has been enacted not for granting benefit to stage carriage operators or to facilitate or guarantee profit and benefits to transport operators, but with the object of regulating the entire field of motor vehicles, transport, traffic, road safety, compensation to victims of motor accidents, security, comfort and protection of passengers, public safety, prevention of pollution, protection of road conditions, regulation and control of transport vehicles including provisions for grant of permits, preventing unhealthy competitions between the transporters amongst several other issues relating to motor vehicles and transport. It is therefore clear from a perusal of the provisions of the Act that the extent of the right to operate stage carriages under the Act is subservient and subject to the right, amongst others, to safe and secure transport of the traveling passengers and the right to pollution free environment and good road conditions of the public at large.

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The 1^st petitioner in these writ petitions are registered associations of stage carriage operators in the State and the 2^nd petitioner in the respective writ petitions are holders of regular stage carriage permits, which are being operated as city services. It is trite law that the fundamental rights guaranteed by Article 19 of the Constitution of India can be enforced only by citizens and not by non-citizens like the registered associations of stage carriage operators.

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The 2^nd petitioner in the respective writ petitions, who are stage carriage operators, though have a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India to trade and commerce, the said right cannot be extended or stretched to encompass a fundamental right to operate their stage carriages unfettered by any conditions or restrictions in total disregard to security, safety and convenience of the passengers and the public at large. The stage carriage operation of the 2^nd petitioner in the respective writ petitions are regulated by the provisions under the MV Act, the rules made thereunder and also the conditions attached to the stage carriage permits

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granted to them. Therefore, while they may have fundamental right under Article 19(1)(g) of the Constitution of India to trade and commerce of their choice, they do not have any right to operate stage carriages without any restrictions and conditions. The fundamental right of stage carriage operators under Article 19(1)(g) of the Constitution of India is inferior and subordinate and has to give way to paramount consideration of public safety, security and convenience of passengers and other relevant considerations under the MV Act and the rules made thereunder.

¶204

The vehicle used for stage carriage service, being a transport vehicle, should carry a certificate of fitness as provided under sub-section (1) of Section 56 of the MV Act, read with Rule 62 of the CMV Rules. In the certificate of fitness issued in Form No.38, the prescribed authority or the authorised testing station mentioned in sub-section (2) of Section 56 of the Act has to certify that the vehicle complies for the time being with all requirements of the MV Act and the rules made thereunder. In view of the provisions under sub-section (1) of Section 56, a transport vehicle shall not be deemed to be validly registered for

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the purposes of Section 39, unless it carries a certificate of

¶208

fitness in the form prescribed by the Central Government. Therefore, when the provisions under the MV Act or the rules made thereunder are amended with effect from the date specified in the notification, prescribing any additional requirement for transport vehicles, every transport vehicle has to comply with the additional requirement so prescribed, with effect from the date specified in that notification. The proviso to clause (x) of sub-section (2) of Section 72 of the MV Act has no application in such cases. In Raghavan v. Regional Transport Officer, Kollam [2001 (2) KLT 209] , a decision relied on by the learned counsel for the petitioners, the Division Bench of this Court was considering the legality of a decision taken by the Regional Transport Authority under clause (x) of sub-section (2) of Section 72 of the MV Act restricting the age of vehicle for the grant of permit for stage carriage operations. In such circumstances, the contention of the petitioners in W.P. (C)Nos.21920 of 2016, 21924 of 2016 and 22032 of 2016 that the provisions under the Kerala Motor Vehicles Rules (Second

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W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018

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Amendment) Rules, 2016 are ultra vires the MV Act, in particular,

¶212

clause (x) of sub-section (2) of Section 72 can only be repelled.

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In W.P.(C)Nos.36987 of 2017 and 8803 of 2018 it is

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contended that the provisions under the Kerala Motor Vehicles (Second Amendment) Rules, 2016 are ultra vires Rule 125C of the Central Motor Vehicles Rules, 1989 and AIS-052 (Revision-1)2008 as amended from time to time. During the pendency of these writ petitions, provisos are inserted to sub-rules (1), (2) and (4) of Rule 280 of the KMV Rules, by the Kerala Motor Vehicles (Fourth Amendment) Rules, 2017 taking note of the provisions under sub-rule (1) of Rule 125C of the CMV Rules, which provides for compliance of the specification under AIS: 052 (Revision-1) 2008 as amended from time to time in phased manner in the matter of body building and approval of new models of buses with seating capacity of 13 or more passengers excluding driver. After the said amendment, the provisions under Rule 280 of the KMV Rules provides for a different specification for stage carriages which are governed by Rule 125C of the CMV Rules, and the provisions under sub-rule (2) of Rule 280 of the

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KMV Rules, as amended by the Kerala Motor Vehicles (Second Amendment) Rules, 2016 are applicable in the case of stage carriages which are not governed by the provisions under Rule 125C of the CMV Rules. In such circumstances, the contention that the provisions under the Kerala Motor Vehicles (Second Amendment) Rules, 2016 are ultra vires Rule 125C of the Central Motor Vehicles Rules, 1989 and AIS-052 (Revision-1)-2008 as amended from time to time, can only be repelled.

¶217

The provisions under the Kerala Motor Vehicles (Second Amendment) Rules, 2016 are intended to ensure safe and convenient public transport facility to the passengers by reducing the chances of untoward incidents and as such, the said provisions are in the interest of the public at large. The said provisions, which are in consonance with and in furtherance of the object and the purpose of the MV Act and the rules made thereunder are only reasonable restrictions, which can legitimately be imposed in the interests of the general public as provided by and permissible under Article 19(6) of the Constitution of India on the fundamental right to trade and

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commerce guaranteed under Article 19(1)(g) of the Constitution of India. In that view of the matter, no interference is warranted either on the provisions of the Kerala Motor Vehicles (Second Amendment) Rules, 2016 or the proceedings dated 23.09.2017 of the Regional Transport Authority, Ernakulam (Ext.P3 in W.P. (C)Nos.36987 of 2017 and 8803 of 2018), whereby the Secretary of that Regional Transport Authority is directed to implement the amended provisions of sub-rule (2) of Rule 280 of the KMV Rules as amended by the KMV (Second Amendment) Rules, 2016 with immediate effect and ensure that all stage carriages issued with a permit by the Regional Transport Authority, Ernakulam are provided with door shutters during service.

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The Police and the transport authorities shall take necessary steps to ensure that all stage carriages, including stage carriages operating as town and city services are fitted with door shutters as mandated by sub-rule (2) of Rule 280 of the KMV Rules. Appropriate proceedings shall be initiated against the owners/permit holders and also the employees of the stage carriages plying with door shutters either removed or tied to bus

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body. Proceedings shall also be initiated against the employees

¶224

for opening or closing door shutters while the stage carriage is in motion.

¶225

In the result, these writ petitions fail and they are accordingly dismissed. No order as to costs.

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Sd/-

¶227

ANIL K. NARENDRAN JUDGE

¶228

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APPENDIX OF WP(C) 21920/2016

¶232

PETITIONER'S/S EXHIBITS:

¶233

EXHIBIT P1. COPY OF THE NOTIFICATION DATED 31.5.16 [G.O (P) NO.40/2016/TRAN]

¶234

EXHIBIT P2. COPY OF SRO NO.482/02 WITH EFFECT FROM 01.08.02.

¶235

EXHIBIT P3. COPY OF THE DRAFT RULE PUBLISHED IN THE OFFICIAL GAZETTE DATED 10.5.11.

¶236

RESPONDENTS' EXTS:

¶237

EXT.R1(A): TRUE COPY OF ORDER OF THE DIVISION BENCH OF THIS COURT IN MACA 1162/2004 DT.24.2.2010.

¶238

TRUE COPY

¶239

P.S. TO JUDGE

¶240

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PETITIONER'S EXHIBITS:

¶244

P1 TRUE COPY OF THE NOTIFICATION DATED 31.5.2016 G.O(P) NO.40/2016/TRAN) P2 TRUE COPY OF SRO NO.482/02 WITH EFFECT FROM 01.08.2002.

¶245

P3 TRUE COPY OF THE DRAFT RULE PUBLISHED IN THE OFFICIAL GAZETTE DATED 10.5.2011.

¶246

RESPONDENTS' EXTS:

¶247

EXT.R1(A):

¶248

TRUE COPY OF ORDER OF THE DIVISION BENCH OF THIS COURT IN MACA 1162/2004 DT.24.2.2010.

¶249

TRUE COPY

¶250

P.S. TO JUDGE

¶251

W.P.(C)Nos.21920, 21924 & 22032/2016, 36987/2017 & 8803/2018

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APPENDIX OF WPC 22032/2016

¶254

PETITIONER'S EXS :

¶255

P1 TRUE COPY OF THE NOTIFICATION DATED 315-2016 (G.O.(P)NO. 40/2016/TRAN).

¶256

P2 TRUE COPY OF SRO NO.482/02 WITH EFFECT FROM 1-8-2002.

¶257

P3 TRUE COPY OF THE DRAFT RULE PUBLISHED IN THE OFFICIAL GAZETTE DATED 10-5-2011.

¶258

RESPONDENTS' EXTS:

¶259

EXT.R1(A):

¶260

TRUE COPY OF ORDER OF THE DIVISION BENCH OF THIS COURT IN MACA 1162/2004 DT.24.2.2010.

¶261

TRUE COPY

¶262

P.S. TO JUDGE

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APPENDIX OF WP(C) 36987/2017

¶266

PETITIONER'S EXHIBITS:

¶267

EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF INCORPORATION DATED 16.01.2017 IN RELATION TO THE 1ST PETITIONER.

¶268

EXHIBIT P2 A TRUE COPY OF THE NOTIFICATION DATED 31.05.2016(G.O.(P) NO.40/2016/TRAN).

¶269

EXHIBIT P3 A TRUE COPY OF THE DECISION OF THE 3RD RESPONDENT DATED 23.09.2017.

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EXHIBIT P4 A TRUE COPY OF THE NOTIFICATION DATED 27.02.2017.

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EXHIBIT P5 A TRUE COPY OF AIS-052 (REVISION-1)2008 (RELEVANT PAGES ONLY).

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EXHIBIT P6 A TRUE COPY OF SRO NO.482/02 WITH EFFECT FROM 01.08.2002.

¶273

EXHIBIT P7 A TRUE COPY OF THE DRAFT RULE PUBLISHED IN THE OFFICIAL GAZETTE DATED 10.05.2011.

¶274

RESPONDENTS' EXTS:

¶275

EXT.R1(A): TRUE COPY OF ORDER OF THE DIVISION BENCH OF THIS COURT IN MACA 1162/2004 DT.24.2.2010.

¶276

TRUE COPY

¶277

P.S. TO JUDGE

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APPENDIX OF WPC 8803 OF 2018

¶281

EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED TO THE 1ST PETITIONER ASSOCIATION.

¶282

EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO. G.O. (P)NO. 40/2016 (TRAN)DATED 31.05.2016.

¶283

EXHIBIT P3 TRUE COPY OF THE DECISION OF THE 3RD RESPONDENT DATED 23.09.2017.

¶284

EXHIBIT P4 TRUE COPY OF NOTIFICATION DATED 27.02.2017.

¶285

EXHIBIT P5 TRUE COPY OF RELEVANT PAGES OF AIS052(REVISION-1)

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EXHIBIT P6 TRUE COPY OF SRO NO. 482/02 WITH EFFECT FROM 01.08.2002.

¶287

EXHIBIT P7 TRUE COPY OF THE DRAFT RULE PUBLISHED IN THE OFFICIAL GAZETTEE DATED 10.05.2011.

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RESPONDENTS' EXTS:

¶289

EXT.R1(A): TRUE COPY OF ORDER OF THE DIVISION BENCH OF THIS COURT IN MACA 1162/2004 DT.24.2.2010.

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TRUE COPY

¶291

P.S. TO JUDGE

Motor Vehicle Operators Association (KERALA0 State Committee v. Government of Kerala

Case brief

What is this about?

What did the court decide?

Motor Vehicle Operators Association (KERALA0 State Committee v. Government of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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