IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 29523 of 2008(M) -------------------------------------- PETITIONER: ------------------------ P.NAZAR, PANAGAVIL HOUSE, PAINKANNOOR, KUTTIPPURAM. BY ADV. SRI.I.DINESH MENON RESPONDENTS: ------------------------ 1. THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM. 2. THE REGIONAL TRANSPORT AUTHORITY, PALAKKAD. 3. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, PALAKKAD. SRI. DILEEP MOHAN, GOVERNMENT PLEADER FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29523 of 2008(M) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE JUDGMENT IN MVAA NO.751/2007 DATED 5/1/2008. EXHIBIT P2: TRUE COPY OF THE PROCEEDINGS DATED 21/8/2006. EXHIBIT P3: TRUE COPY OF THE ORDER IN M.P. 3150/2007 IN MVAA NO.816/2007 DATED 14/12/2007. EXHIBIT P4: TRUE COPY OF THE JUDGMENT IN MVAA NO.816/2007 DATED 24/04/2008. EXHIBIT P5: TRUE COPY OF THE PROCEEDINGS DATED 25/06/2008. EXHIBIT P6: TRUE COPY OF THE APPEAL MEMORANDUM IN MVAA NO.483/2008. EXHIBIT P7: TRUE COPY OF THE APPEAL MEMORANDUM IN MVAA NO.487/2008. EXHIBIT P8: TRUE COPY OF THE COMMON JUDGMENT DATED 8/9/2008 IN MVAA NO.483 AND 487 OF 2008. /TRUE COPY/ P.A. TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 29523 of 2008 ................................................. Dated this the 18th day of August, 2009 J U D G M E N T The petitioner is a stage carriage operator. He sought a regular permit to operate his stage carriage on the route Kuttippuram - Muthuthala (via) Moodal, Mukkilapeedika, Moochikkal, Valanchery, Valiyakunnu, T.V.Pura, Anchumoola, Karuvampadi, Vayanasala, Karuvamputhur, Mangeri, Perasannur, Kattiparuthy and Karthalachungam. as per order dated 11.6.2002 RTA Palakkad granted the permit for the period from 10.7.2002 to 9.7.2007. The permit was issued on the specific condition that the petitioner should obtain counter signature from the sister authority, namely RTA Malappuram, as enjoined in section 88(1) of the Motor Vehicles Act, for operating the service in the Malappuram region. The appellant did not apply for such counter signature for about four years. After four years when the appellant sought for the counter signature from the RTA Malappuram, such request was rejected by order dated 29.5.2006, on the ground that the proposed route is in violation W.P(C) No. 29523 of 2008 -2- of Guruvayur - Kozhikode supplementation scheme. That order of the RTA was challenged by the petitioner in M.V.A.A. No. 343 of 2006 before the State Transport appellate Tribunal. The Tribunal by order dated 29.11.2006 set aside the order of the RTA Malappuram and remanded the matter to the RTA to consider whether the objectionable overlapping exceeds 1/10th of the route length or in the alternative 10 kilometers, whichever is less. Even before the filing of that appeal, the petitioner had filed an application before the RTA Palakkad for variation of his permit. When there was delay in considering the application for variation, the petitioner filed the writ petition No. 9179 of 2006 before this court and this court, by order dated 7.4.2006 directed the RTA to consider the application for variation of permit within two months. Pursuant thereto, the petitioner's request for variation was also allowed by the 1st respondent as per order dated 25.5.2006, subject to settlement of timings. But the appellant did not disclose of fact that he did not obtain counter signature of the sister authority under Section 88(1) of the Motor Vehicles Act to operate his service in the region of the sister authority. When there was delay in settling the timings in respect of the modified or varied route of the appellant, he once W.P(C) No. 29523 of 2008 -3- again approached this court by filing W.P(C) No. 20927 of 2006, which was disposed of by this Court on 17.8.2006 directing the RTA to do the needful within 45 days regarding the issuance of the varied permit after settlement of timings. Thereafter the RTA took up the issue relating to the failure of the petitioner to obtain the counter signature of the sister authority and passed an order dated 21.8.2006 by which the permit granted to the appellant as per order dated 11.6.2002 as also the variation granted as per order dated 25.5.2006 were cancelled. The petitioner challenged that order before State Transport Appellate Tribunal in MVAA No. 816 of 2007. By Ext.P4 order, finding everything against the petitioner the Tribunal remanded the matter to the RTA only on the ground that before cancelling the permit, the petitioner was not given an opportunity of being heard. Pursuant thereto, the RTA again considered the matter and by Ext.P5 order again confirmed the earlier decision. The petitioner filed Ext.P6 appeal before State Transport Appellate Tribunal as MVA No. 483 of 2008. The State Transport Appellate Tribunal by Ext.P8 judgment, refused to interfere with the order and rejected the appeal. The petitioner is challenging Ext.P8 order in this writ petition. The contention raised by the W.P(C) No. 29523 of 2008 -4- petitioner is that the tribunal did not address himself to the issue raised by the petitioner in Exts.P6 and P7 appeals. He would submit that the State Transport Appellate Tribunal did not even call for the records of the RTA. He would submit that Ext.P5 order itself is unsustainable since by Ext.P4 judgment the tribunal had remanded the matter for fresh consideration as an open remand. Therefore RTA was bound to reconsider every aspect of the matter including the question as to whether the petitioner is entitled to compound the violations of the permit conditions and the non disclosure of failure to obtain counter signature, in his application for variation. The petitioner would therefore submit that there is absolute non-application of mind by the tribunal in passing Ext.P8 order. 2. A counter affidavit has been filed by the 2nd respondent disputing the contentions of the petitioner. According to the 2nd respondent as per the check reports of the Assistant Motor Vehicle Inspector, Pattambi, dated 10.10.2007, the petitioners vehicle was found operating on the route Muthuthala - Thiruvegapura with a destination board 'Valanchery' at the time of checking. Again the same was found repeated as per check report dated 15.2.2006 and as such according to the 2nd W.P(C) No. 29523 of 2008 -5- respondent the petitioner was in fact operating the vehicle in Malappuram also without obtaining counter signature from the RTA Malappuram. According to him, the permit was issued to the petitioner on the condition that he should obtain counter signature from the RTA Malappuram. He not only did not apply for counter signature for four long years, but also operated in Malappuram without a counter signature. He also did not disclose the fact that he did not apply for counter signature, when he filed an application for variation of the permit in respect of the Malappuram area. That would further compound the action of the petitioner in the matter is the contention raised. 3. The petitioner has filed a reply affidavit in which he seeks to contradict the statement that he had operated in Malappuram without a counter signature. 4. I have considered the rival contentions in detail. 5. I am of opinion that the petitioner is not entitled to invoke the discretionary jurisdiction of this court under Article 226 of the Constitution of India. Admittedly the petitioner did not apply for counter signature of the RTA Malappuram, in accordance with the conditions of the permit granted by the RTA Palakkad. Although he denied the allegation that he has not W.P(C) No. 29523 of 2008 -6- operated in Malappuram, I am inclined to believe the counter affidavit of the 2nd respondent, in which it is specifically stated that on 10.10.2007 and 15.2.2006, the Assistant Motor Vehicle Inspector, Pattambi inspected the vehicle and found that the vehicle was running with a destination board 'Valanchery' which is in Malappuram district. That itself shows that the petitioner was actually operating in Malappuram as well on the strength of the permit which was issued with the condition that he should apply for counter signature of RTA, Malappuram and the petitioner did not even care to apply for counter signature. Added to that the petitioner had the audacity to apply for variation of the permit in respect of the Malapuram area without disclosing the fact that the petitioner did not obtain counter signature from the RTA Malappuram. I do not think that the petitioner is a person who can be trusted with a permit of this nature. Therefore I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner and accordingly the writ petition is dismissed. S. SIRI JAGAN, JUDGE rhs