IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9932 of 2010(N)
1. K.ABOOBACKER,
... Petitioner
Vs
1. THE SECRETARY,
... Respondent
2. P.AMEER, S/O.KOMU HAJI,
For Petitioner :SRI.ANIL SIVARAMAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :05/04/2010
O R D E R
K.SURENDRA MOHAN, J
...........................................
WP(C).NO.9932 OF 2010
............................................
DATED THIS THE 5TH DAY OF APRIL, 2010
JUDGMENT
The petitioner is a Stage Carriage operator conducting services
on the route Vettikad-Perinthalmanna on the strength of a regular
permit granted to his Stage Carriage bearing registration No.KL-10/N
7711. He has filed this writ petition challenging Ext.P4 order of the
STAT, allowing a revision petition filed by the second respondent
herein under Section 90 of the Motor Vehicles Act, 1988. The second
respondent had challenged Ext.P3, which is the approved timings
issued for the conduct of his services, before the State Transport
Appellate Tribunal(STAT). Ext.P3 order shows that the same was
rendered after hearing all the affected parties. However, before the
STAT, all affected persons were not made parties. Only some of the
parties, who came to know of the proceedings got themselves
impleaded. As per Ext.P4 order, Ext.P3 timings were set aside and the
matter was remanded for fresh settlement of the timings, after hearing
all interested parties. Accordingly, Ext.P6 timings have been issued.
Wpc 9932/2010 2
The petitioner has submitted Ext.P7 objections to Ext.P6. It is the
contention of the petitioner that since Ext.P6 is only a consequential
order issued pursuant to Ext.P4 judgment of the STAT, it is a futile
exercise challenging the same before the said Tribunal.
2. According to the counsel for the petitioner, the mandate of the
Division Bench which is contained in Ext.P5 judgment to the effect
that all affected persons should be made parties before the STAT has
been flouted in passing Ext.P4. Consequently, the petitioner, who is
an interested person was not heard before Ext.P4 was passed, causing
irreparable injury and injustice to the petitioner. As a consequence, the
petitioner is in a situation where it is not possible for him to challenge
Ext.P6 effectively. Therefore, he prays for setting aside Ext.P4 and P6.
3. The learned Senior Government Pleader, Mr.K.C.Santhosh
Kumar, points out that though the petitioner was not a party to Ext.P4,
when a timing conference was held pursuant to the said order on
25.1.2010, the petitioner also participated and his objections were
specifically considered. In view of the above, it is submitted that the
grievances of the petitioner do not survive. It is long after the issue of
Wpc 9932/2010 3
Ext.P6 that Ext.P7 objections have been filed on 7.3.2010. Therefore,
he prays for dismissal of the writ petition.
4. I notice from Ext.P3 that the same was issued on the basis of a
timing conference conducted on 17.2.2009 in which the second
respondent as well as other 64 operators including the KSRTC had
attended. Therefore, Ext.P3 shows that the timings therein were issued
after hearing all the interested persons. However, Ext.P4 shows that the
revision petition was initially filed with only the RTA and the Secretary
thereof as parties and that respondents 3 to 11 were subsequently
impleaded. Though 64 enroute operators were heard before passing
Ext.P3, only nine operators were parties to Ext.P4. It is the above
practice of passing orders without all the interested persons on the
party array that has been deprecated by the Division Bench in Ext.P5
judgment. In the said judgment dated 18.12.2009 in W.A.2877 of
2009, after considering the contentions of the parties, the Division
Bench has made the following observations.
” We notice that in Ext.P4, there is a finding in
favour of the appellant, that his claim is genuine
and thereafter the remand is made. So, the
Wpc 9932/2010 4
Secretary, R.T.A is bound by that finding. Even
if other operators on the route are heard, the
Secretary, R.T.A is bound to redress the
grievance of the appellant, which has been found
to be genuine by the Tribunal. Therefore, before
making such an observation on merits, the
Tribunal should have given an opportunity of
being heard to the affected operators. It should
have insisted that all those, who are operating on
the route and who participated in the timing
conference, based on which Ext.P2 was issued
should have been impleaded. Otherwise, the
revision petition should have been dismissed.
The illegal practice followed by the Tribunal
cannot be pressed into service as a ground to
defend Ext.P4″.
The Division Bench has gone on to conclude the issue in the following
words:-
“Finally, it is pointed out by the learned counsel
for the appellant that the writ petitioner can
challenge Ext.P5 by filing revision petition
before the Tribunal. But, we notice that as long
as the observation of the Tribunal in Ext.P4
Wpc 9932/2010 5
regarding the merits of the case of the appellant
remains, the said challenge will not be
efficacious”.
5. In view of the above authoritative pronouncement, there could
be no doubt that the remand made in Ext.P4 by the STAT, without all
the affected parties on the party array, was uncalled for. The said order
has become final and a consequential order Ext.P6 has also been
passed pursuant to the same. The petitioner participated in the timing
conference in which Ext.P6 was settled. His objections have also been
considered. In view of the fact that Ext.P7 has already been issued, the
proper remedy for the petitioner is to challenge Ext.P7 before the
STAT. It is for the petitioner to point out the circumstances under
which Ext.P4 was passed without the petitioner on the party array. I do
not find any reason to presume that the contentions of the petitioner
would not be considered by the authority in the proper perspective. I
also notice that the STAT had directed in Ext.P4 to settle the timings
afresh ” after giving an opportunity to all concerned of being heard”.
However, as observed by the Division Bench in the passages quoted
Wpc 9932/2010 6
above, an opportunity of being heard at the time of settlement of
timings cannot cure the defect of not being made a party before the
STAT.
6. For the foregoing reasons, this writ petition is disposed of
directing the petitioner to challenge Ext.P6 before the STAT. In the
event of the petitioner challenging the same before the said authority,
the STAT shall consider the same in accordance with law, and shall
pass appropriate orders thereon, untrammelled by any of the
observations made by it in its order dated 6.4.2009 in MVARP No.90
of 2009 evidenced herein by Ext.P4. No costs.
K.SURENDRA MOHAN, JUDGE
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