Affected Persons Were Not Heard: Kerala HC Quashes Notification Restricting Operation Of Private Stage Carriages Upto A Distance Of 140 Km
Tellmy Jolly
8 Nov 2024 2:02 PM IST
Quashing a notification of the State government which restricted the length of routes of private stage carriage operators to a maximum distance of up to 140 kilometres, the Kerala High Court said that the final notification was issued without hearing and duly considering the objections of the affected parties as required under the relevant rules.
For context, Rule 246 of the Kerala Motor Vehicle (MV) Rules provides for modification of the approved scheme which mandates publication of the proposed scheme and the final scheme in Form (E) & (F) respectively. A copy of this scheme shall be sent to the State Transport Undertaking and to any other person, who in the opinion of the State Government is likely to be affected by the proposed modification. It adds that objections can be filed by the person affected by the scheme within 30 days from publication of the scheme which shall be "heard" by the concerned authority.
Referring to this rule, the court held that the proposed scheme did not comply with the mandate of the provision as it did not mention the place, date and time for hearing of the objections of the affected parties.
The order was passed in batch of writ petitions filed by private stage carriage operators challenging the proposed modified scheme, on the ground that the notification was issued without hearing the objections of the affected private bus owners operating in the existing routes. In this case, proposed modified scheme was published in 2020 and final notification was issued in 2023 without giving reasons for rejecting the objections given by the affected persons.
A single judge bench of Justice D K Singh stated that even though the final scheme was published as per Rule 246 in Form (F) (Appendix 1), it did not contain the reasons given for rejecting the objections given by the affected persons after publication of the proposed scheme in Form (E).
“I am of the view that the final notification suffers from illegality, inasmuch as there is nothing on record to suggest that due consideration was given to the objections filed by the petitioners and others and that they were rejected by some reasoned order……. the proposed scheme was not compliant to the mandatory requirement of Rule 246 of KMV Rules, inasmuch as the proposed scheme published on 14.09.2020 did not mention the place, date and time for hearing objections, which is the mandatory requirement of Rule 246. The proposed notification in Form 'E' was defective, and therefore, the final notification cannot be said to be in accordance with law.”
Following discussions and notifications issued since 2007, the State Government published proposed scheme on November 14, 2020 and thereafter issued a final notification on April 03, 2023 / May 05, 2023 stipulating that private stage carriage operators would not operate the route longer than 140 kms. As per the scheme, private buses will not be able to renew their permits now.
The petitioners contended that their objections to the proposed scheme was not considered before issuing the final notification. It was argued that the final notification could not be issued without first publishing the proposed modification of the existing scheme in the Official Gazette and in a regional language newspaper as per Section 102 of the Motor Vehicles (MV) Act. It is also stated that the publication must also include date, time and place for hearing objections and the time for hearing the representation should not be less than 30 days from the date of the publication of the notification. It is stated that there is no public interest involved in modification of the existing scheme with the new scheme when there is a delay in publication.
On the other hand, KSRTC argued that objections were considered and hearings were conducted as per law before issuance of the final notification. It was stated that there was no requirement to give reasons for rejecting the objections. It was also stated that a delay in the publication of the notification would not render the notification illegal.
The Court on analysis of Section 102 of the MV Act stated that before modifying or cancelling the scheme, the State Government is "required to give an opportunity of hearing" to the State Transport Undertaking and any other persons, who, in the opinion of the State Government, is /are likely to be affected by the proposed modifications.
The Court noted that Rule 246 provides for modification of the approved scheme which mandates publication of the proposed scheme and the final scheme in Form (E) & (F) respectively. It further noted that Section 102 of the MV Act pertains to cancellation or modification of an existing scheme.
It said, “Rule 246 of the KMV Rules, provides for the manner of publication of the proposal to modify the approved scheme under Section 102 in Form (E) and the final scheme in Form (F) as provided in Appendix-I of the said Rules.”
The Court referred to the Supreme Court's decision in B. A Linga Reddy v. Karnataka State Transport Authority (2015) which said that it is the duty of the State to give reasons and to pass a speaking order to exclude the arbitrariness in action. It had said that the State is supposed to act in the public interest while exercising powers under Section 102. The requirement of proper hearing, consideration of objections judicially and passing reasoned order pursuance of the objections are the mandatory requirements of the law and non compliance therewith would render modification/cancellation of the scheme invalid, the apex court had said.
The high court said, “The Supreme Court in the case of B. A Linga Reddy (supra) held that the State Government acts as a quasi-judicial authority while considering the objections and in absence of the reasons for rejecting the objections, the final scheme is rendered illegal.”
In the facts of the case, the high court held that the proposed scheme was published in 2020 and final notification was issued on April 03, 2023 / May 05, 2023, without giving reason for rejecting the objections of the affected persons.
"From the impugned scheme, it is evident that there are no reasons even in brief coming forth for rejecting the objections filed by the petitioners to the proposed scheme dated 14.09.2020 except for the saying that the objections were considered, and objectors were heard as mentioned in the final impugned notification dated 03.04.2023 / 04.05.2023...The counter affidavit filed on behalf of the State Government does not disclose any material suggesting in what manner the objections were considered and rejected, and reasons thereof," it said.
It further stated that the final notification came after more than two years and eight months. It said, “If the State Government was of the opinion that the modification of the existing scheme was in public interest, then the final modified scheme ought to have been published immediately after hearing the objectors.”
As such, the notification was set aside and the petitions were allowed.
Case Number: WPC No. 17469/2024 and Connected Cases
Case Title: Baby Joseph v State of Kerala and Connected Cases
Citation: 2024 LiveLaw (Ker) 702
