IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 10084 of 2009(E) --------------------------------------- PETITIONER: ------------------- P.R. THOMAS, AGED 56, S/O. RAPHEAL, PADAMATTUMMEL HOUSE, CHETTIKKAD, KUNJITHAI.P.O., VADAKKEKARA, NORTH PARUR. BY ADVS. MR.P.GOPALAKRISHNA MENON, MR.M.JITHESH MENON. RESPONDENTS: ------------------------ 1. THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM. 2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, ERNAKULAM. 3. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, ERNAKULAM. 4. THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM. R1,R2 & R4 BY GOVT. PLEADER SMT. SMITHA, R3 BY MR.JOHNSON P.JOHN, SC, KSRTC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10084/2009-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION IN THE PRESCRIBED FORM P.ST. S.A FILED BY THE PETITIONER DTD. 16/07/07. EXT.P.2: COPY OF THE COVERING LETTER FILED BY THE PETITIONER DTD. 16/07/07 CONTAINING THE TIMINGS. EXT.P.3: COPY OF THE ORDER OF THE R.1. DTD. 21/08/07. EXT.P.4: COPY OF THE JUDGMENT IN MVAA.NO.697/07 DTD. 18/09/08. EXT.P.5: COPY OF THE ORDER OF THE R.1. DTD. 18/11/08. EXT.P.6: COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER AS MVAA.NO.13/09 (WITHOUT EXHIBITS) DTD. 29/12/08. EXT.P.7: COPY OF THE JUDGMENT IN MVAA.NO.13/09 DTD. 16/02/09. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C).No.10084 OF 2009 ------------------------ Dated this the 9th day of September, 2009. JUDGMENT Petitioner submitted Ext.P1 application for a regular permit on the route Munambam-North Paravoor- Kakkanad. That was rejected by the RTA on the ground of overlapping, as per Ext.P3 proceedings. By Ext.P4 judgment, the STAT set aside Ext.P3 order and directed the RTA to reconsider the matter in the light of the judgment of this court in Vijayan V. State of Kerala(2008(3) ILR Kerala 476). In so far as the second reason for rejection that the proposed route connects and passes through two intermediate points at North Paravur and Mannam in Aluva- Kuriappilly scheme with exceptional clause, that objection was overruled by the STAT. 2. The matter was accordingly reconsidered but however the application was again rejected as per Ext.P5 WP(c).No.10084/09 2 proceedings, on the ground that the route overlaps the modified settlement scheme published by notification dated 15.9.2008. Further it is also stated that portion of the route from Edapally to Palarivattom objectionably overlaps the notified route Ernakulam-Palakkad by 3 Kms. Again Ext.P6 appeal was filed before the Tribunal and by Ext.P7 judgment the Tribunal allowed the appeal and set aside the impugned order. Accordingly, the matter was remitted to the first respondent for reconsideration. It is aggrieved by the remand order thus passed the writ petition is filed. 3. Two contentions are raised. One is that in Ext.P7, the findings of the Tribunal is that the draft notification relied on in Ext.P5 did not enable the RTA to reject the application. Contentions raised by the counsel for the petitioner is that since the matter was already considered and rejected and was again remitted his eligibility for the grant of permit has to be reckoned with reference to the position as prevailing as on the date of the first consideration of his application. In WP(c).No.10084/09 3 support of this contention, counsel placed reliance on the Division Bench judgment of this court in Manikandakumar V. Ramakrishnan (1985 KLT 1026). Another contention raised by the petitioner is that subsequent promulgation of the scheme as mentioned in Ext.P5, was not in derogation of the existing complete exclusion scheme and therefore the matter has to be decided in that view. In support of this contention counsel place reliance on a Division Bench judgment of this court in O.P.No.3790/1974 and connected cases. 4. In my view, though there is considerable force in the submissions made by the counsel for the petitioner, the matter has to be decided by the primary authority. This necessarily has to be consistent with the law as laid down by this court in the judgment relied on by the counsel. Accordingly, I dispose of this writ petition directing that the first respondent shall reconsider Ext.P1 application for regular permit made, in the light of Ext.P7 order passed by the STAT and also in the light of the principles laid down in WP(c).No.10084/09 4 the judgment referred to above. This shall be done as expeditiously as possible and at any rate within 8 weeks from the date of production of a copy of the judgment. (ANTONY DOMINIC) JUDGE vi/