IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WA.No. 203 of 2010() -------------------- ( AGAINST THE JUDGMENT IN W.P.(C)NO.27041/2008) APPELLANT(S): PETITIONER ------------------------ P.GANGADHARAN, S/O.PUNNUCHAMI, AGED 36 YEARS, KARAKOTTUPARA, THEKKANKUNNAM, KOTTEKKAD P.O., PALAKKAD. BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS --------------- 1. THE REGIONAL TRANSPORT AUTHORITY, PALAKKAD, REP. BY ITS SECRETARY. 2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, PALAKKAD. 3. SHRI.K.RAVINDRAKUMAR, PROPRIETOR, KL-8/E 3474, ILLATHUKULAM, OLASSERY P.O., PALAKKAD. 4. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, PALAKKAD. BY SENIOR GOVERNMENT PLEADER SRI.BASANT BALAJI SRI.BENJAMIN PAUL, SC, KSRTC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - W.A.No.203 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of August, 2010 JUDGMENT Basheer, J. Appellant applied for grant of a Regular Permit on the route Palakkad-Palakkad(via) Kottekkad, Kalleppully, Puthoor and trips (1) Padalikkad-Palakkad (Via) Kottekkad, Kundukad, Mattumontha, Palayam and Puthur (2) Palakkad-Kannanore(via) Oodur and Thachankad. 2. Initially the Regional Transport Authority granted a permit to the appellant. But later, apparently on the basis of some objection raised by respondent No.3 herein, the Transport Authority reviewed its earlier order and cancelled the permit as could be seen from Ext.P4 proceedings. Though the appellant challenged the above order before the State Transport Appellate Tribunal, the appeal was dismissed. Ext.P7 order is the order passed by the Tribunal. 3. Thereafter, the appellant filed the writ petition under Article 226 of the Constitution of India seeking to quash Exts.P4 and WA.No.203/2010 2 P7 orders. Learned Single Judge dismissed the writ petition holding that the finding of the Tribunal that the appellant had misrepresented the facts before the Regional Transport Authority appeared to be correct. The above judgment passed by the learned Single Judge is impugned in this appeal. 4. Before we deal with the various contentions raised by the learned counsel for the parties ( Smt.Sumathy Dandapani, learned Senior counsel, who appears for the appellant and also learned counsel who appears for respondent No.3 and the Kerala State Road Transport Corporation), it may at once be noticed that there is a slight change in the scenario as far as the scheme relating to “notified area” is concerned. It is the admitted position that the Government has issued a notification settling the final scheme as evidenced by Annexure A1 in G.O.(P) NO.42/2009/Tran. dated July 14, 2009. 5. Sub Clause ( c) of Clause 4 of the above notification stipulates that “permits will be granted to private stage carriages of other routes permitting them to overlap 5 k.m. or 5% of the length of their own routes whichever is less on the notified routes for the WA.No.203/2010 3 purposes of intersection”. In the draft scheme of the year 2007, such an exclusion clause was not available. 6. Probably noticing this change in the scheme, this court had, at the time when the appeal came up for consideration at the admission stage, appointed an Advocate Commissioner to measure the distance from Palakkad Municipal Bus stand to Tharekkad which is the alleged portion covered by the notified area. The Advocate Commissioner in his report has stated that the distance is 800 metres. The total distance of the route in question is 26 kms. Therefore, going by Sub Clause ( c) of Clause 4, the appellant will fall within the permitted distance. As rightly pointed out by Smt.Sumathy Dandapani, learned senior counsel, the distance that can be overlapped in terms of the Clause referred to above is 1.3 kms ( 26 x 5%), whereas the Advocate Commissioner has found that it is only 800 metres. 7. Learned counsel for respondent No.3, who is a rival operator and who has turned out to be the nemesis of the appellant, submits that the measurement taken by the Advocate Commissioner is not entirely correct. Respondent No.3 has in fact filed an objection to WA.No.203/2010 4 the report of the Commissioner highlighting certain aspects in this regard. 8. We do not propose to deal with those contentions at this stage. However, learned senior counsel who appears for the appellant submits that respondent No.3 being a rival operator has no locus standi to intervene in the matter as has been held by this court in Binu Chacko v. R.T.A., Pathanamthitta ( 2006(2) KLT 172). 9. We refrain from making any observation on this aspect also, in view of the order that we propose to pass in this appeal. It may be noticed that the introduction of the new scheme and its impact on the permit applied for by the appellant was not considered by either by the Regional Transport Authority or the State Transport Appellate Tribunal. Though learned senior counsel made a fervent plea that the issue may be given a quietus here itself without driving the appellant to yet another round of litigation, we are of the view that it will be appropriate if the Appellate Authority decides the issue taking note of the final scheme as well as the report of the Advocate Commissioner. It is seen from the report that the Advocate Commissioner had WA.No.203/2010 5 measured the distance in the presence of all parties concerned particularly, the Motor Vehicles Inspector . If the Tribunal feels that any additional data is to be gathered, it will be open to the Tribunal to do so. The appellant and others can also produce additional materials before the Tribunal, if so advised. In the above facts and circumstances, the appeal is disposed of directing the State Transport Appellate Tribunal to reconsider the matter afresh as indicated above and take a final decision as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. WA.No.203/2010 6