IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12222 of 2010(C)
1. K.P.MURALEEDHARAN,
... Petitioner
Vs
1. THE REGIONAL TRANSPORT AUTHORITY,
... Respondent
2. THE SECRETARY,
3. STATE TRANSPORT APPELLATE TRIBUNAL,
4. K.SAJEEVAN,
For Petitioner :SRI.P.DEEPAK
For Respondent :SRI.O.D.SIVADAS
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :25/06/2010
O R D E R
K.SURENDRA MOHAN, J.
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W.P.(C).No.12222 of 2010
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Dated this the 25th day of June, 2010
JUDGMENT
The petitioner is a stage carriage operator conducting
services on the route Kannur-Mattannur via Chakkarakalle,
Ancharakandy and Keezhallor. The 4th respondent is also
conducting service on the route Kannur-Mattannur to Kolary
L.P.School. The 4th respondent had approached the 2nd
respondent for the revision of his own timings. However, his
request was rejected. Thereupon the 4th respondent
challenged the rejection of his request by filing a revision
petition before the State Transport Appellate Tribunal
(‘STAT’ for short). However, the revision was filed by the
4th respondent without making the petitioner as well as the
other objectors parties to the same. In W.P.(C).
No.30604/2007 the order of the STAT was set aside for the
reason that the 4th respondent had not made all the
persons who had objected to the timings parties to the
revision petition. The said revision petition was filed by the
petitioner herein and another person. Thereafter, though
W. P.(C).No.12222 of 2010 2
the 4th respondent had filed a review petition as well as a
writ appeal challenging Ext.P1, both were dismissed. In
Writ Appeal No.207/2008, the 4th respondent was however
permitted to implead all affected parties in the revision filed
by him and the STAT was directed to consider the matter
afresh.
2. Pursuant to the remand, the revision filed by the 4th
respondent was considered and was dismissed as per
Ext.P3. The 4th respondent challenged Ext.P3 before this
Court in W.P.(C).No.26646/2008. As per Ext.P4 judgment,
this Court permitted the petitioner to file a fresh application
seeking revision of his own timings. Accordingly the
petitioner submitted a fresh application. On the basis of his
request, his timings were re-settled as per Ext.P5. While re-
settling the timings on 17.6.2009, all interested parties
including the petitioner were heard. Shortly thereafter, the
4threspondent submitted an application proposing a variation
by curtailing a portion of his route. However, the 1st
respondent rejected the said application finding that such
W. P.(C).No.12222 of 2010 3
curtailment of a portion of his route would affect the
traveling public. The 4th respondent thereupon challenged
the rejection of the application by filing an appeal before the
STAT as MVAA No.409 of 2007. It is to be noticed that the
4th respondent did not make the petitioner or the other
objectors parties to the said appeal, though they had
participated in the timing conference conducted by the 1st
respondent on 11.8.2009. The STAT after considering the
matter allowed the appeal, directed the 1st respondent to
grant the variation as sought for by the appellant, subject to
settlement of timings. The petitioner has filed this writ
petition challenging the said judgment, Ext.P7.
3. According to the counsel for the petitioner, though
the petitioner had objected to the request made by the 4th
respondent for the revision of his timings, in Ext.P7 appeal,
he had not been made a party. It is pointed out that the
variation that was sought, relates only to a very small
portion of the route of the 4th respondent and was actually
intended to achieve the object of procuring a change in the
W. P.(C).No.12222 of 2010 4
timings subject to which the 4th respondent was operating
his services.
4. The counsel for the 4th respondent Shri.O.D
Sivadas on the other hand counters the above submissions
by pointing out that his application was not a request for
revision of timings but was one for the variation of his
permit so as to change the halting place. At the meeting of
the 1st respondent, though the petitioner was present, he
had not objected to the variation that was sought. In spite
of the above, the 1st respondent had rejected the 4th
respondent’s application. Since it was the rejection of a
request for the variation of his permit that was challenged
in the appeal before the STAT it was not necessary for the
petitioner to have been made a party to the said appeal.
Therefore, it is contented that the judgment Ext.P7 was not
passed behind back of the petitioner. It is also pointed out
that the petitioner has no right to challenge the variation
granted to the 4th respondent as held by this Court in
various decisions. It is further submitted that the timings
W. P.(C).No.12222 of 2010 5
of the 4th respondent on the varied route have not been
settled and therefore the grievance if any of the petitioner
would arise only upon such settlement of his timings. Since
the petitioner has no grievance to be agitated, it is
submitted that this writ petition is liable to be dismissed.
The 4th respondent also relies on the judgment of this Court
in W.P.(C).No.21282 of 2007 which has been produced as
Ext.R4(a) along with his counter affidavit.
5. The counsel for the petitioner meets the above
contentions pointing out that though the application of the
4th respondent was filed for variation the same was
intended to obtain the revision of his timings. The object of
the petitioner was to unsettle the timings that were settled
as per Ext.P5 after hearing all the affected parties. Since the
petitioner had also objected before the 1st respondent it is
pointed out that it was necessary that the petitioner was
made a party to the appeal that ended in Ext.P7 judgment.
He also relies on the decision reported in Yusuf V. R.T.A.,
Ernakulam, (2009 (4) KLT 426) as well as the judgment
W. P.(C).No.12222 of 2010 6
of this Court in W.P.(C).NO.21281/2007.
6. I have heard the learned counsel for the petitioner
Shri.P.Deepak as well as Shri. O.D.Sivadas who appears for
the 4th respondent.
7. It is worth noticing that the timings of the 4th
respondent was initially sought to be revised by an
application submitted to the 1st respondent, which was
objected to by the petitioner. After hearing the objections
of the petitioner also, the timings were settled on
25.4.2007. However, when the 4th respondent challenged
the said proceedings in M.V.A.A.No.409 of 2007, the
petitioner and the other objectors were not made parties to
the same. For the said reason, as per Ext.P1 judgment, the
order of the STAT was set aside. In writ appeal, the matter
was remanded back with a specific direction to consider
the revision petition afresh after impleading all the persons
who had objected to the settlement of the timings of the
stage carriage of the 4th respondent. Subsequently the
matter was considered by the STAT and as per Ext.P3, the
W. P.(C).No.12222 of 2010 7
revision was dismissed. The 4th respondent challenged
Ext.P3 in W.P.(C).N0.26646/2008 and as per Ext.P4
judgment, the 4th respondent was permitted to submit a
fresh application for the revision of his timings. Accordingly
he submitted a fresh application and his timings were
settled as per Ext.P5 on 17.6.2009. It is shortly thereafter,
that the 4th respondent has moved his application for the
variation of his permit. The said application was considered
by the 1st respondent on 11.8.2009 and was rejected. It is
not disputed that the petitioner was also heard in the
matter. However, while filing an appeal challenging the said
proceedings of the 1st respondent the petitioner was not
made a party by the 4th respondent.
8. Relying on the decision of this Court reported in
Binu Chacho V. R.T.A. Pathanamthitta (2006 (2) KLT
172) it is contended that an existing operator has no right
to challenge the grant of permit to another operator for
the only reason that it prejudicially affects his rights. It is
pointed out that the said dictum has been made applicable
W. P.(C).No.12222 of 2010 8
to the variation of a permit also, as is clear from Ext.R4(a)
judgment. However, as per the decision reported in Yusuf
V. R.T.A., Ernakulam, (Supra) it has been held that an
existing operator has the right to challenge the grant of
variation of an existing permit, the reason being that the
grant of such variation does not amount to the issue of a
fresh permit. The above decision is a later decision that has
referred to all the above decisions including Ext.R4(a). The
counsel for the petitioner also relies on the judgment of this
Court dated 30.7.2007 in W.P.(C) No.21951/2007 to contend
that the omission to implead the objectors as parties to an
appeal or revision before the STAT vitiates the
order/judgment passed in the appeal.
9. In the present case, as found above, though the 4th
respondent has moved an application for the variation of his
permit, it is not merely an application for variation of his
permit but also an attempt to vary his timings. The
petitioner though he was heard at the timing conference
dated 11.8.2009, was not made a party to
W. P.(C).No.12222 of 2010 9
M.V.A.A.No.409/2009. Since the petitioner was not made a
party to the same, Ext.P7 judgment is vitiated.
10. For the above reasons, the direction contained in
Ext.P7 to grant the variation as sought for by the appellant
subject to the settlement of timings is set aside. Since the
order rejecting the application submitted by the petitioner
has also been set aside by the STAT, it is sufficient that the
4th respondent is directed to consider the application afresh
after considering the objections, if any of the petitioner also.
K.SURENDRA MOHAN, JUDGE.
mns