IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 WP(C).No. 21236 of 2009(Y) -------------------------- PETITIONER: --------------- M.K.ABU, MULAKKAMPILLY HOUSE, PADAMUGAL, KAKKANAD, KOCHI. BY ADV. SRI.G.PRABHAKARAN RESPONDENTS: --------------- 1. THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, ERNAKULAM. 3. THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM. BY GOVERNMENT PLEADER ADV. MR. S. DILIP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21236 of 2009(Y) APPENDIX PETITIONER'S EXHIBITS EXT.P1 : TRUE COPY OF THE COVERING LETTER DATED 10.11.2008 EXT.P2 : TRUE COPY OF THE REQUEST DATED 11.11.2008 EXT.P3 : TRUE COPY OF THE PROCEEDINGS DATED 18.11.2008 EXT.P4 : TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 12.12.2008 EXT.P5 : TRUE COPY OF THE JUDGMENT DATED 6.4.2009 IN MVAA NO. 715/2008 EXT.P6 : TRUE COPY OF TGE REGULAR PERMIT DATED 18.4.2008 EXT.P7 : TRUE COPY OF THE TIME SCHEDULE OF THE STAGE CARRIAGE SERVICE KL.17/D 6699 EXT.P8 : TRUE COPY OF THE TIME SCHEDULE OF THE STAGE CARRIAGE SERVICE KL.7/AS.4352. EXT.P9 : TRUE COPY OF THE PERMIT OPERATING OF THE ROUTE EDACIRRA-KAKKANAD WITH THE VEHICLE KL.40/189 DATED 7.7.2006 EXT.P10 : TRUE COPY OF THE PERMIT OPERATING ON THE ROUTE CHERTHALA-THUTHIYOOR WITH THE VEHICLE KL.7/AE. 9443 DATED 14.2.2008 EXT.P11 : TRUE COPY OF THE REQUEST OF THE EMPLOYEES OF CENTRAL GOVERNMENT WELFARE ASSOCIATION, KUNNUMPURAM DAT ED 11.11.2008 /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 21236 OF 2009 ......................................................................... Dated this the 3rd August, 2011 J U D G M E N T The grievance projected in this writ petition is with regard to the rejection of the claim of the petitioner for variation of route to the extent of 3 Kms between Kunnumpuram and Kakkanad which forms part of the route Kakkanad-Fort Cochin allotted to the petitioner, as per the relevant permit in respect of the stage carriage bearing No.KL.7BB/9030. 2. The case of the petitioner is that the RTA has issued quite a lot of permits in the route Kakkanad-Fort Cochin and the same is over crowded. At same time, it is contended that a new road called 'Civil Lines Road' has come into existence between Kakkanad-Kunnumpuram, through which only very few permits have been issued by the RTA to some stage carriages and they are operating in the route. It is stated that several buildings have come up on the sides of the new road; such as CPWD W.P.(C) No. 21236 OF 2009 2 quarters and other establishments/residential flats. The employees residing in the CPWD quarters allegedly have preferred Ext.P11 request dated 11.11.2008 before the District Collector, Ernakulam, seeking for sanctioning of sufficient number of stage carriages, to be plied through the said route, for the convenience of the employees and general public. It was in the said circumstance, that the petitioner sought for 'route- variation' to an extent of 3 Kms for plying the vehicle in the route Kakkanad-Kunnumpuram through the new road, instead of going through the NGO quarters. The said request was considered by the first respondent, who rejected the same as per Ext. P3 in the following terms “Heard. The variation includes (i) The curtailment of the portion Kakkanad-NGO Quarters-Kunnumpuram (3 Km) which will adversely affect the existing commuters (ii) The deviation via New road is dangerous since the Byepass road is narrow elevated and with two bottle neck junctions. For the above reasons and on road safety aspects the variation is rejected.” W.P.(C) No. 21236 OF 2009 3 Being aggrieved , the petitioner took up the matter before the STAT, Ernakulam, by filing Ext.P4 appeal, raising many a ground on factual and legal basis. After considering the appeal, the same was rejected by the STAT as per Ext.P5, whereby Ext.P3 was confirmed, which in turn forms the subject matter of challenge in this writ petition. 3. Heard the learned Government Pleader as well. 4. The learned Counsel for the petitioner submits that the STAT has rightly observed in paragraph '3' of the impugned verdict, that paramount consideration is the “benefit of general public” as enshrined in Section 80(3) of the M.V.Act. It is also observed that the report of the concerned Field Officer, as borne out from the page '5 'of the RTA files, would go to show that the operation would be beneficial to the Central Government Employees who reside in the Government Quarters. But, it has been observed in the next sentence that the curtailment portion includes the sector where the 'NGO quarters' at Kakkanad is situated; simultaneously pointing out that, it was not clear as to W.P.(C) No. 21236 OF 2009 4 how the Central Government employees residing in the NGO quarters are benefitted by the variation. A doubt is also expressed that, it is not clear whether the concerned Motor Vehicles Inspector was referring to 'any other' Government Quarters where the Central Government employees reside. It was in the said circumstance, that the finding of the first respondent was upheld. The other reason to reject the appeal is with reference to the alleged operation of some other stage carriages through the new road. The reasoning given by the STAT is that factual particulars are not discernible from the materials on record, as to whether the operation of alleged stage carriages through the new road was on the basis of valid documents/sanction . It is also stated that, if other stage carriages are allowed to ply through the sector illegally or mistakenly, the same cannot be treated as a precedent or ground to repeat or perpetuate the mistake and as such, there was nothing wrong on the part of the first respondent for having rejected the claim for variation. 5. After hearing both the sides, this Court finds that the W.P.(C) No. 21236 OF 2009 5 observations made by the first respondent and the STAT are not correct or proper. Primarily, it is to be noted that absolutely no reason, as discussed by the STAT have been given or incorporated in Ext.P3 order passed by the first respondent. Though some discussion is there in the order passed by the STAT, it is more with reference to the “doubt” expressed as to the actual position. Inspite of the “doubt”, the said authority has not called for further report from those concerned, so as to examine the correctness of the averments made by the petitioner and to have a proper fact adjudication, more so, when the STAT has already arrived at a finding that the report of the Field Officer revealed that the variation will be beneficial to the Central Government employees. 6. Coming to the “doubt” expressed in Ext.P5 with regard to the 'Quarters', it is to be borne in mind that the 'NGO quarters' at Kakkanad is the one owned by the State; whereas the Central Government employees are residing in the 'CPWD quarters' situated on the side of the new road/Civil Lines Road which is entirely different. When the STAT has expressed a “doubt” as to W.P.(C) No. 21236 OF 2009 6 whether the concerned Field Officer was referring to some other Government quarters, it was not proper on the part of the STAT to have come to a conclusion rejecting the appeal, without getting further information as to the correct factual position. The impugned order is not sustainable on this score as well. 7. With regard to the alleged perpetuation of the mistake (if without valid permit or otherwise) in permitting other stage carriages to operate through the new road, it is to be noted that the factual position was specifically pleaded by the petitioner, stating that the said vehicles are carrying out operations on the basis of valid permits issued by the concerned authorities, copies of which have been produced as Exts.P9 and P10 along with the reply affidavit filed in the writ petition. In the said circumstance, it has to be noted that the operation of the said vehicles is not by way of any illegal means or by mistake, but on the basis of valid sanction and as such, why the application preferred by the petitioner was not considered, is still a matter to be considered and decided by the concerned authorities. Relevant particulars in this regard are not discernible from the counter affidavit filed W.P.(C) No. 21236 OF 2009 7 by the first and second respondents; wherein nothing is stated as to the application preferred by the petitioner for variation. 8. In the above circumstance, this Court finds that the petitioner is entitled to succeed. The impugned orders (Exts.P1 and P4) are set aside. The first respondent is directed to re- consider the matter afresh, after ascertaining the actual factual particulars and affording an opportunity of hearing to the petitioner. The proceedings shall be finalised as above, in accordance with law, as expeditiously as possible, at any rate, within 'six weeks' from the date of receipt of a copy of the judgment. The writ petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk