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Taxi Drivers' Union and Anr. Vs. Kerala State Road Transport Corporation and Ors. (10.03.1982 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberO.P. No. 2400 of 1981-R
Judge
Reported inAIR1983Ker69
ActsMotor Vehicles Act, 1939 - Sections 2(24) and 42(1)
AppellantTaxi Drivers' Union and Anr.
RespondentKerala State Road Transport Corporation and Ors.
Appellant Advocate George Varghese Kannanthanam,; P.C. Joseph Pasheparambil,;
Respondent Advocate George Mathew Kalappurackal, Adv. and;Sr. Central Govt. Standing Counsel
DispositionPetition dismissed
Excerpt:
.....42 (1) of motor vehicles act, 1939 - petitioners objected plying of buses of respondents through link road on ground that same was public place under section 2 (24) and requisite permission under section 42 (1) not obtained - passing through link road not matter of right but access purely permissive - element of right of access dominates in definition of public place - disputed place not public place and no permit required to ply buses - no violation of section 42 (1) - held, petition dismissed. - - first, by way of illustration, or of enumeration of the forms the thing denned commonly assumes, by naming things that clearly come within fee meaning given. ' in the present case inclusive definition is not given by way of illustration or enumeration of places which clearly come..........the national highway and the aerodrome building is called for the purpose of this case as, the 'link road'. the first respondent, kerala state road transport corporation, decided to introduce with effect from 18-5-1981 two stage carriage services under the name 'boeing limited slop past passenger' from cochin aerodrome to guruvayoor for the convenience of passengers reaching cochin from bombay by boeing flights. the buses have stops at ernakulam jose junction, always by-pass, angamali, chalakkudi, kodakara, amballoor, trichur, kunnamkulam and chavakkad. these two buses are to start not from the point in the national highway nearest to the aerodrome building. they start right from the parking area adjacent to the aerodrome building, pass through the link road and reach the national.....
Judgment:
ORDER

U.L. Bhat, J.

1. The first petitioner is the Taxi Drivers' Union and the second petitioner, a taxi driver, is the Secretary of the Union. Members of the Union and other taxi drivers have been parking their taxis in the parking urea adjacent to the Cochin Aerodrome buildings and collecting passengers alighting from the various flights. The right to collect fees for the use of the parking area has been given on contract under Ext. P2 (a). Aerodrome building and the park area are situated about one furlong away from the National Highway. The road connecting the national highway and the aerodrome building is called for the purpose of this case as, the 'link road'. The first respondent, Kerala State Road Transport Corporation, decided to introduce with effect from 18-5-1981 two stage carriage services under the name 'Boeing Limited Slop Past Passenger' from Cochin Aerodrome to Guruvayoor for the convenience of passengers reaching Cochin from Bombay by Boeing flights. The buses have stops at Ernakulam Jose Junction, Always By-pass, Angamali, Chalakkudi, Kodakara, Amballoor, Trichur, Kunnamkulam and Chavakkad. These two buses are to start not from the point in the National Highway nearest to the aerodrome building. They start right from the parking area adjacent to the aerodrome building, pass through the link road and reach the National Highway. Petitioners have no grievance i the two buses start from the point in the National Highway nearest to the Aerodrome building without passing through the link road OB reaching the parking area in the aerodrome. They apprehend that if these buses are allowed to pass through the link road and teach the parking area, passengers with destination towards north up to Guruvayoor would prefer to travel by these buses, which are cheaper, rather than engaging taxis andthereby the custom and income of the taxi drivers would be considerably reduced. The learned counsel for the petitioners urged two main contentions against the introduction of the two bus services from the parking area of the aerodrome. The first contention is that the parking area and the link road arc 'public places' and in order to operate stage carriage services in a public place, permit is necessary under Section 42 of the Motor Vehicles Act, 1939 (for short the 'Act') and no such permit to cover the link road and the aerodrome parking place has been obtained by the first respondent. The second contention is that the first respondent has a right to obtain a permit under Chap. TVA only for operating stage carriage services in a highway; and the link road and the parking area adjacent to the aerodrome building are not part of any highway and therefore the first respondent is not entitled to a permit under Chap. IVA of the Act.

2. The first respondent is the Keraia State Road Transport Corporation, represented by its Chairman. The second respondent is the Government of India, represented by its Secretary, Civil Aviation Department and the 3rd respondent is the Aerodrome Officer, Cochin Airport. The 3rd respondent has filed a counter-affidavit on behalf of respondents 1 to 3 stating, inter alia, Cochin Aerodrome is actually a Naval Air Station belonging to the Defence Department of the Government of India and is a protected place, that Civil Aviation Department is permitted use of the land on the terms and conditions contained in Ext. Rf for construction of a civil enclave temporarily and additional land was allowed for this purpose under Exts. R2 and R3 and construction of certain buildings also was sanctioned. Cochin Aerodrome and premises are even now under the control of the Navy, that site of the link road also belongs to the Defence Department and it was made available to the Civil Aviation Department as per Ext. R3, that terminal building was put up by the Civil Aviation Department, that the link road has gates at its approach near the National High-Way, and that link road is open for use by those having connection with flights and at other times the gates are kept locked for security reasons. Public has no right of access to the link road or the parking place adjacent to the aerodrome building and unless there is such a right of access, this place cannot be regarded as public place for the purpose of the Act. In this view no permit is necessary under the provisions of the Act. On the request of the first respondent andfor the convenience of the passengers using Indian Airlines flights, the Civil Aviation Department granted permission to the first respondent to bring their buses right up to the terminal building and the same is lawful. Petitioners have not suffered any legal injury and have no locus standi to question this. Petitioners have also filed a reply affidavit rebutting these contentions.

3. Cochin Aerodrome lies about a furlong away from the nearest point in the National Highway. In between is the link road, which begins from the National Highway and ends at the place in front of the terminal building where parking facilities are provided. It is actually a Naval Air Station belonging to the defence department of the Government of India. Civil Aviation Department has been permitted to use the land and the facilities and also to make necessary constructions for use as a Civil Enclave. Indian Airlines, a Corporation constituted under the Air Corporations Act, 26 of 1953 is using the Aerodrome for commercial flights. The link road is part of the land belonging to the Defence Department. It is actually not part of the Aerodrome. In this view, ordinarily, it cannot be said that either the link road or the two ends of the link load are places where public have access as a matter of right. It would appear that any such access is based primarily on the permission given by the Defence Department, if not the Civil Aviation Department.

4. The matter has to be considered in the light of the definition of 'public place' in Section 2 (24) of the Act. 'Public place' has been defined thus:

''Public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage.'From what has been discussed above in regard to the right to the land and the aerodrome vesting in the defence department and the civil aviation department and Indian Airlines having been allowed to operate commercial flights on that basis, it must follow that public have no access to the place as a matter of right.

5. However, according to the learned counsel for the petitioners, provisions of the Air Corporation Act and the Air Craft Rules will show that at least a section of the public have a right of access to the link road, parking area and the aerodrome. Section 2 (8) of the Air Corporation Act, 27 of 1953states that 'Scheduled air transport service' means 'an air transport service undertaken between the same two or more places and operated according to a published time table or with flights so regular or frequent that they constitute a recognisably systematic series, each flight being open to use by themembers of the public'. Rule 78 (c) of the Air Craft Rules authorises Civil Aviation Department to grant permission to any vehicle to enter the Aerodrome. It is also made clear that the Government Aerodrome shall not be open to use by any member of the public except to the extent determined by the Government. From these provisions it follows that each flight in this Airport is open to use by members of the public, though the aerodrome shall not be open to use by any member of the public except to the extent delcrmined by the Government Possibly, the rule has reference to use of the aerodrome by aircraft. A member of the public to whom Indian Airlines issues a flight ticket is certainly entitled to perform his journey by the concerned flight from this Aerodrome. For that purpose he will have also the right to reach the Aerodrome. In this case he can reach the aerodrome- only by using the link road and the parking place. But this is a right which does not vest in all members of the public or in a definite section of the public. It is a right contingent on the member of the public purchasing an air ticket from the Corporation. He passes through the link road and the parking urea not in exercise of any right vesterf in him as a member of the public, but on account of the permission given by the concerned department. In other words, the access is purely permissive, ft may be that Civil Aviation Department or the Defence Department are obliged to grant permission to passengers to pass through the link road. that will not mean that such passengers or members of the public have a right of access as such. I, therefore, hold that the first part of the definition of the word 'public place' in Section 2 (24) of the Act will not apply to the instant case since public has no right of access to the link road or the parking area in the aerodrome premises.

6. The definition of 'public place' contains an inclusive definition. 'Public place' includes 'any place or stand at which passengers are picked up or set down by a stage carriage'. The argument advanced on behalf of the petitioners is that parking area where the buses having traversed file link road stop, is a place where passengers arepicked up and set down and therefore it is 'public place' whether or not public have a right of access to that place. Learned counsel for the petitioners explained that whenever a stage carriage of the just respondent reaches the parking area and sets down or picks up passengers, that place of setting down or picking up becomes a 'public place' within the meaning of the Act. The learned counsel (or the first respondent and the learned Central Government standing counsel contend that inclusive definition is only intended to remove any ambiguity in the first part of the definition and it does not extend the scope of the definition and will not bring in ;t category which is actually outside the purview of the definition.

7. The considerations which should be borne in mind in interpreting an inclusive definition have been considered by a Full Bench of this Court in the decision reported in Krishnan Nair V. Sivraman Nambudiri (1967 Ker LT 78): (AIR 1967 Ker 270). That case dealt with definition of 'kanom' which also contained an inclusive definition. The Full Bench observed as follows (at p. 278 of AIR):

'A definition which first tells us what a thing means and then goes on to say what it includes, can use the inclusive device for three entirely different purposes. First, by way of illustration, or of enumeration of the forms the thing denned commonly assumes, by naming things that clearly come within fee meaning given. Secondly, for roping in things that either partly or in whole, would not come, within the meaning. Thirdly, by Way of abundant caution, so as to put it beyond doubt that certain things do come within the meaning.'

In the present case inclusive definition is not given by way of illustration or enumeration of places which clearly come within the meaning of 'public place' given in the earlier part of the definition. According to the learned counsel for the petitioners, inclusive definition has been given to rope in places which would not come within the meaning of the word 'public place' as defined in the earlier part of the definition. According to the learned counsel for the respondents, the inclusive definition has been given by way of abundant caution to put it beyond doubt that certain places do not come within the meaning of 'public place'.

8. It appears to me that the contention of the respondents has to be accepted. What is defined is not a place but a 'publicplace'. Emphasis is on the word 'public'.'Public place' is defined in the main partof the definition as 'a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access', the accent is not on the circumstance that public have access, but it is on the circumstance that public have a right of access. Element of right of access dominates the definition. It may be that in certain cases a doubt may arise whether a place or stand at which passengers are picked up or set down is also a public place. That is because a particular place or stand may not be regarded as a road or street or way or other place mentioned in the definition. The expression 'other place' must be treated as 'ejusdem generis' with the expression 'street, road or way'. Thus, there can be a view that 'other places' mentioned earlier must necessarily be something like a 'road, street or way' and cannot be a place for picking up or setting down passengers, since the other essential element of 'road, street or way' is absent. It appears to me that it is to clear this ambiguity, if any, and by way of abundant caution that the inclusive definition is given in Section 2 (24) of the Act. Even in order that a place may fall within the ambit of the inclusive definition, the element of right of access on the part of the public is a necessary concomitant. To hold that the inclusive definition is intended to rope in places where public have no right of access would be to enlarge the definition to an unrecognisable proportion and in such a case, every private place, where passengers are picked up and set down may have to be regarded as 'public place'. An analysis of the various sections of the Act would show that driving licence, permit, speed, laden weight of the vehicles, traffic signs, production of licence and R.C. on demand by certain officers, etc. all have relevance to a 'public place'. It cannot be said that these provisions could have any application to a place where public have no right of access. Therefore, it cannot be accepted that in considering whether the inclusive definition applies to a given case, the element of right of access to the public need not be insisted upon. In the instant case, even though the buses belonging to the first respondent traverse through the link road and use the parking area in front of the aerodrome building for picking up and setting down passengers, since the public have no right of access as a matter of right, but have access only by way of permission, I hold that these places, viz., the link road and parking area are not 'public places' as defined in the Act.

9. Section 42(1) of the Act states, inter alia, that 'no owner of a transport vehicle shall use or permit the use of the vehicle m any public place (whether or not such vehicle is actually carrying any passenger or goods) save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority ......'. There is no dispute that the first respondent has obtained permits for operating along the route up to Guruvayoor.

Respondents have no case that the permit mentions the link road or the parking area in front of the terminal building in the aerodrome. It is unnecessary to mention in the permits these places, since this road or the place is not a 'public place'. The permit is required only if the transport vehicle is to be used in a public place. Absence of a permit to ply buses of the first respondent along the link road or to take the buses to the parking area in the aerodrome cannot be violation of Section 42 (1) of the Act.

10. It is open to the first respondent to apply for permission under Section 42. At the same lime Chapter IVA gives certain additional privileges to the State Transport Undertaking liks the first respondent. Section 68-C deals with preparation and publication of a scheme of road transport service of a State Transport Undertaking, either in relation to any area or in relation to a route or part (hereof. Section 68-D contemplates objections being filed to the scheme by interested parties. After hearing objections, if any, the authority concerned may cancel the scheme or modify the scheme under Section 68-E of the Act. When once a scheme is finalised under Section 68-E, by virtue of Section 68-F, State Transport Undertaking gets a right to obtain permit in respect of a notified area or a notified route. It is open to the State Transport Undertaking to follow the procedure laid down in Chap. IVA. We are not concerned with the expression 'notified area' found in Chap. IVA. The word 'route' is defined in Section 2 (28A) of the Act as 'a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another'. 'Highway' has not been denned in the Act. According to Black's Law Dictionary, 'highway' is 'free and public road, way or street one where every person has a right to use'. It is the stand taken by the petitioners as well as by the respondents that the link road and the parking area near the terminal building in the aerodrome is not a 'public street, road or way' where every member of the public has a right of access. Obviously it is not ahighway. If that be so, these places cannot be included in a notified route or part thereof.

11. It is argued by the learned counsel for the petitioners that if the link road and the parking area cannot be included in a notified area or route, under Section 68-F, the respondent cannot get a permit to ply buses in the link road and the parking area in the aerodrome. I am afraid, this conclusion does not follow. The conclusion can only he that if a certain road or a certain place is not a 'public place' and is not part of 'highway', no permit is necessary for the first respondent to ply the buses in that road or to reach that place. In other words, for the purpose of the M.V. Act, though not for the purpose of other statutes, the link road and the parking area are not public places. That being so, the first respondent does not require any permit to operate buses along the link road and to the parking place in the aerodrome. What is required is only permission from the Civil Aviation Department and that permission has been granted as is seen from the counter-affidavit.

12. In this view, there is no illegality or violation of the provisions of the M.V. Act in the first respondent operating two buses along the link road and picking up or setting down passengers at the parking area in front of the terminal building at Cochin Aerodrome. Hence, it is unnecessary for me to consider whether petitioners have thereby suffered any legal injury or whether petitioners have locus standi to file this original petition.

In the result, this original petition is dismissed, but without costs.


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