IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 25033 of 2009(Y) ---------------------------------------- PETITIONER(S): ------------------------ MOHAMMEDALI HAJI, S/O.MOIDEENKUTTY HAJI, AGED 56 YEARS, KUTTIYIL HOUSE, PATHARANGADI, VIA THIRURANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.SAJEEV KUMAR K.GOPAL, SMT.AMBIKA RADHAKRISHNAN. RESPONDENT(S): --------------------------- 1. THE REGIONAL TRANSPORT AUTHORITY, MALAPPURAM, REP.BY ITS SECRETARY. 2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, MALAPPURAM. 3. MOHAMMED ABDULLA, S/O.ABDULLA HAJI, MUMTHUS MANZIL, NEDUVA AMSOM, PARAPPANANGADI TALUK, MALAPPURAM DISTRICT, REP.BY HIS POWER OF ATTORNEY HOLDER MOHAMMED SIRAJ. R1 & R2 BY GOVT. PLEADER MR.K.S MOHAMMED HASHIM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C) NO. 25033/2009-y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT ON 19/12/2006. EXT.P2: COPY OF THE APPLICATION IN FORM 29 UNDER RULE 55(1) OF THE CENTRAL MOTOR VEHICLE RULES. EXT.P3: COPY OF THE APPLICATION IN FORM 30 SUBMITTED BEFORE THE REGISTERING AUTHORITY. EXT.P4: COPY OF THE DECISION OF THE RTA TAKEN IN THE MEETING ON 27/12/2007 IN ITEM NO.46. EXT.P5: COPY OF THE MVARP/114/08 PREFERRED BY THE 3RD RESPONDENT. EXT.P6: COPY OF THE ORDER PASSED BY THE STATE TRANSPORT APPELLATE TRIBUNAL DATED 29/07/2008 IN MVARP 114/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.25033 OF 2009 -------------------------------------------- Dated this the 7th day of September, 2010 JUDGMENT The petitioner herein was the third respondent and the third respondent herein was the revision petitioner in MVARP No.114/2008 before the State Transport Appellate Tribunal, Ernakulam. The contention of the petitioner is that for the purpose of transferring the regular permit of stage carriage KL-55-3459, which stands in the name of the third respondent, a joint application for transfer of permit was submitted by the petitioner and the third respondent before the first respondent. Later, the third respondent disowned the same and disputed the factum of submission of such a joint application. As per Ext.P4, the first respondent issued order for transfer of permit in favour of the petitioner based on the aforesaid joint application. MVARP No.114/2008 was filed by the third respondent herein challenging Ext.P4 proceedings of the first respondent. 2. Admittedly, the petitioner had received notice in the said revision petition. However, he remained ex parte. The said revision petition was consequently allowed by the State Transport Appellate Tribunal as per Ext.P6 order. A scanning of Ext.P6 order would reveal W.P.(C) NO.25033/2009 2 that on appreciating the evidence on record, the Tribunal arrived at a conclusion that the first respondent had not conducted any enquiry with respect to the genuineness of the joint application filed by the petitioner and the third respondent. The contention of the petitioner is that it is having arrived at such a conclusion, the Tribunal ought to have remanded the matter for fresh consideration. In short, the grievance of the petitioner is that after arriving at such a conclusion, the Tribunal should not have interfered with Ext.P4. It is contended that taking into account the fact that Ext.P6 order was passed without hearing the third respondent viz., the petitioner herein and believing the version of the third respondent herein that he was not a signatory to the joint application submitted before the first respondent, the matter is liable to be remitted for fresh consideration. When a respondent refuses to appear and fails to raise the necessary plea of defence, he cannot be heard to say that the order passed thereafter is not one heard and finally decided. In fact, such a respondent cannot be permitted to raise grievance based on violation of principles of natural justice. But, in this case, the petitioner who was the third respondent in the revision petition assails Ext.P6 order on certain other grounds. On 28.8.2009, this Court admitted this Writ Petition and ordered notice to the W.P.(C) NO.25033/2009 3 respondents. Subsequently, the petitioner has taken out notice by paper publication. Despite the same, the third respondent did not enter appearance. 3. As already noticed hereinbefore, the contention of the petitioner is that the Tribunal ought to have remitted the matter for fresh consideration to the first respondent. In the context of the contentions, paragraph 3 of Ext.P6 order assumes relevance and the same reads thus:- “Of course, the RTA files would go to show that a joint application was filed by the petitioner and the 3rd respondent for the transfer of the petitioner's permit in favour of the 3rd respondent. But the definite case of the petitioner is that he is not a party to such an application. The petitioner would also point out that he did not appear before the first respondent on 27.12.2007, when the matter was taken up for hearing by the first respondent. So long as the 3rd respondent remained absent in the proceedings before this Tribunal, I find no reason to distrust the case of the petitioner in this regard. Before passing the impugned order, the first respondent is also not seen to have conducted any enquiry about the genuineness of the W.P.(C) NO.25033/2009 4 joint application filed by the petitioner and the 3rd respondent. In such circumstances, I find that the impugned order transferring the petitioner's stage carriage permit in favour of the 3rd respondent has to be set aside.” 4. A scanning of the same would reveal that before the Tribunal the 3rd respondent herein viz., the petitioner herein contended that he did not appear before the first respondent on 27.12.2007 when the joint application was taken up for hearing. Obviously, the Tribunal held that the first respondent had not conducted any enquiry about the genuineness of the joint application filed by the petitioner and the 3rd respondent. In this context, it is apposite to note that in the impugned proceedings of the first respondent, it was recorded that both of them were heard. The verity of the said statement was not verified by the Tribunal going by Ext.P6 order. If the 3rd respondent herein was actually heard by the first respondent and at the time of hearing, he failed to raise any objection whatsoever, the first respondent would be justified in not conducting any enquiry regarding the genuineness of the joint application. If he was not heard by the first respondent, then the observation made by the Tribunal is justified. 5. In the circumstances, having regard to the facts and circumstances and taking into account the contentions raised by the W.P.(C) NO.25033/2009 5 petitioner, I am of the view that Ext.P5 revision petition filed by the third respondent before the Tribunal requires fresh consideration. Evidently, the Tribunal entered into the finding that the first respondent had not conducted any enquiry into the genuineness of the joint application submitted by the petitioner and the third respondent. But, the fact is that at no point of time, such an endeavour has been made. No doubt, it may be because in all these proceedings, one party or the other had chosen to remain ex parte. For all these reasons, I am of the view that Ext.P6 is liable to be set aside and accordingly, it is set aside. The matter is remitted back to the State Transport Appellate Tribunal, Ernakulam for fresh consideration of MVARP 114/2008, in accordance with law. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.25033/2009 6 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.25033/2009 7