IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 WP(C).No. 7660 of 2010(F) ------------------------------------ PETITIONER: ------------------- MRS.SALEENA JOSEPH, W/O.JOSEPH, THE VICE PRESIDENT, PERUVANTHANAM GRAMA PANCHAYATH, PERUVANTHANAM, THEKKAMALA, IDUKKI DISTRICT. BY ADV. SRI.G.PRABHAKARAN. RESPONDENTS: ------------------------ 1. THE REGIONAL TRANSPORT AUTHORITY, KOTTAYAM, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOTTAYAM. 3. SRI.P.T.ANIYAN KUNJU, PUTHENVEETTIL AJI NIVAS, COLLECTORATE P.O., KOTTAYAM. 4. STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM. R1,R2 & R4 BY GOVT. PLEADER SMT. ROSE MICHAEL, R3 BY ADV. SRI.P.DEEPAK. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.7660/2010-F: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE PROCEEDINGS DTD. 07/08/2007. EXT.P.2: COPY OF THE JUDGMENT DTD. 11/02/2008 IN MVAA.NO.743/07. EXT.P.3: COPY OF THE PROCEEDINGS DTD. 16/10/2008. EXT.P.4: COPY OF THE JUDGMENT DTD. 16/01/2009 IN MVAA.NO.78/2009. EXT.P.5: COPY OF THE JUDGMENT DTD. 24/04/2009 IN MVAA NO.78/2009. EXT.P.6: COPY OF THE JUDGMENT DTD. 26/08/2009 IN W.P.(C).NO.24616/2009. RESPONDENT'S EXHIBITS:- EXT.R3.A: COPY OF THE PERMIT ISSUED TO KURIAN MATHEW. EXT.R3.B: COPY OF THE TIME SCHEDULE ISSUED ON 31/05/2000. EXT.R3.C: COPY OF THE APPLICATION IN FORM PVA DTD. 26/02/2007. EXT.R3.D: COPY OF THE MEMORANDUM OF APPEAL IN MVAA.NO.743/2007 . EXT.R3.E: COPY OF THE ADDITIONAL AFFIDAVIT DTD. 2/2/2008. EXT.R3.F: COPY OF THE JUDGMENT DTD. 29/05/2008 IN W.P.(C).NO.15968/2008. EXT.R3.G: COPY OF THE REVISED APPLICATION IN FORM PVA AND COVERING LETTER. EXT.R3.H: COPY OF THE REPRESENTATIONS DTD. 15/10/2008 OF PRESIDENT & VICE PRESIDENT, KOOTIKKAL GRAMA PANCHAYAT. EXT.R3.I: COPY OF THE REPRESENTATION DTD. 15/10/2008 OF PRESIDENT, KOKKAYAR GRAMA PANCHAYAT. EXT.R3.J: COPY OF THE REPRESENTATION DTD. 15/10/2008 MOTHER SUPERIOR, SANTHI NILAYAM. EXT.R3.K: COPY OF THE REPRESENTATION DTD. 15/10/2008 OF PRESIDENT,KCYM, YENDAYAR. EXT.R3.L: COPY OF THE REPRESENTATION DTD. 16/10/2008 OF PRESIDENT, JANATHA GRANDHA SALA, ELAMCODE. EXT.R3.M:COP, REPRESENTATION DTD. 16/10/2008 OF PRESIDENT, SNDP, ELAMCADU. EXT.R3.N: COPY OF THE ORDER OF RTA DTD. 30/07/2009. W.P.(C).NO.7660/2010-F: EXT.R3.O: COPY OF THE NOTICE DTD. 19/02/2010. EXT.R3.P: COPY OF THE REPRESENTATION DTD. 20/02/2010. EXT.R3.Q: COPY OF THE JUDGMENT DTD. 23/02/2010 IN W.P.(C).NO.5914/2010. EXT.R3.R: COPY OF THE ORDER OF R.2. DTD. 3/3/2010. EXT.R3.S: COPY OF THE OBJECTION DTD. 24/02/2010 OF M.M. ABRAHAM. EXT.R3.T: COPY OF THE OBJECTION DTD. 25/02/2010 OF WRIT PETITIONER. EXT.R3.U: COPY OF THE REPRESENTATION DTD. 12/03/2010 UNDER RTI ACT. //TRUE COPY// P.A. TO JUDGE Prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C) No.7660 of 2010 ------------------------------------------- Dated this the 2nd day of December, 2011 J U D G M E N T ---------------------- The petitioner is the Vice President of Peruvanthanam Grama Panchayat. In this writ petition she is challenging Ext.P5 Judgment of the State Transport Appellate Tribunal in MVAA No.78/2009, and also Ext.P7 consequential proceedings issued by the Regional Transport Authority, Kottayam, granting variation of permit to the 3rd respondent. The predecessor in interest of the 3rd respondent, one Sri.Kurian Mathew, who was the stage carriage operator on the route Kottayam-Thekkemala via Ponkunnam, Kanjirappilly, Mundakayam, Paloorkavu, (owner of vehicle bearing No.KL-5/AA 3154) had applied for variation of the permit seeking curtailment of all four trips in the sector from Mundakkayam to Thekkemala, which is having a distance of 10 Km and also for extending the route W.P.(C).7660/10-F -2- from Mundakkayam to Elamkad. The request for variation was objected by the Grama Panchayat on the basis that Thekkemala being a rural area without much transportation facilities, will be affected seriously. In Ext.P1, the RTA, Kottayam had rejected the variation sought for stating the reason that it will adversely affect the travelling public and also finding that it will not serve convenience of the travelling public under Section 80(3) of the Motor Vehicle Act. 2. An appeal preferred by the above said Sri.Kurian Mathew was dismissed by the State Transport Appellate Tribunal as per Ext.P2 upholding the reasons as observed by the Regional Transport Authority. It is specifically found by the State Transport Appellate Tribunal that the files of the RTA show that representations were received from the Grama Panchayat concerned pointing out the difficulties experienced by the travelling public in this sector. The State Transport Appellate Tribunal observed that while considering the request for variation, convenience of the public enjoyed under Section 80(3) is a decisive factor. Sri. W.P.(C).7660/10-F -3- Kurian Mathew had filed a writ petition against Ext.P2 Judgment before this court in W.P(C).No.15965/2008. In the said writ petition, it was conceded that he is limiting claim for variation by way of curtailment only with respect to two trips. This court permitted for filing of an application with modified variation. Accordingly Sri.Kurian Mathew submitted an application for variation of permit in respect of stage carriage KL-5/T 5173 on the route Thekkemala- Kottayam to the extent of curtailment of the first and last trips, retaining the second and third trips as Thekkemala- Kottayam. But the Regional Transport Authority again rejected the applications stating that the variation including curtailment of two trips will adversely affect the existing travelling public, as per Ext.P3. 3. Aggrieved by Ext.P3 decision, Sri.Kurian Mathew had again approached the State Transport Appellate Tribunal. In Ext.P5 Judgment, the Tribunal observed that the report of the Enquiry Officer is to the effect that the proposal now mooted by the applicant is feasible and therefore the RTA was not justified in rejecting the modified W.P.(C).7660/10-F -4- proposal for variation. The Tribunal observed that the modified proposal is in the interest of the travelling public as enjoyed under Section 80(3) of the Motor Vehicle Act. Therefore the impugned order of the RTA was set aside and it was directed to grant the modified variation as sought for, which will result in curtailment of two trips from Mundakkayam to Thekkemala. But it is revealed that the RTA again rejected the variation, which was challenged before this court by the 3rd respondent in W.P(C).24616/09. In Ext.P6 Judgment this court found that when the State Transport Appellate Tribunal had disposed of the appeal granting the modified variation sought for, the RTA was not justified in rejecting the varied permit. Therefore the decision of the RTA was set aside and direction was issued to grant varied permit in accordance with Ext.P5 Judgment of the STAT. Ext.P7 is the variation granted consequent to Ext.P6 Judgment. 4. The petitioner is now seeking to quash Ext.P5 Judgment of the STAT. It is evident that the rejection of the variation sought for at the first instance was mainly on the W.P.(C).7660/10-F -5- basis of the objections raised by the Grama Panchayat. It is noticed that when the decisions of the RTA was challenged before the STAT, predecessor of the 3rd respondent has not impleaded the Grama Panchayat or any of its authorities. However, it is also pertinent to note that neither the petitioner nor the Grama Panchayat had taken any steps to implead themselves before the STAT and to contest the matter. In the counter affidavit filed on behalf of the 3rd respondent it is contended that in an appeal filed under Section 89 of the Motor Vehicles Act challenging the order of RTA, the appellant is required only to array the concerned transport authority as respondent. It is also contended that under Section 89 of the Motor Vehicles Act there is no provision which is akin to 3rd proviso to Section 90 which mandates that the Tribunal shall not pass any order to any person without affording an opportunity of hearing. Further contention of the 3rd respondent that the petitioner herein was not an objector before the RTA and there was no objection raised before the RTA with respect to the deviations sought for. On facts of the case the 3rd W.P.(C).7660/10-F -6- respondent also contended that the area of Thekkemala is now well served with transport facilities and that the petitioner or the Grama Panchayat had not objected variation with respect to the other permits which were serving the sector in question. 5. While considering the rival contentions I am of the view that the petitioner was not a party before the STAT in Ext.P5 appeal. Since Ext.P5 Judgment was pronounced by the STAT without the petitioner being cited in the party array, the proper course left open to the petitioner is to seek review of the Judgment after getting herself impleaded in the matter. It is pointed out that by virtue of Rule 21 of the State Transport Appellate Tribunal Rules, 1988, the Tribunal has power to review its final orders. Since the question requires appreciation of factual aspects as well as evaluation of report and other records, I am of the view that the petitioner can be relegated to the State Transport Appellate Tribunal seeking review of Ext.P5 Judgment, after getting herself impleaded in the appeal in question. Considering the fact that the petitioner had challenged W.P.(C).7660/10-F -7- Ext.P5 Judgment in this writ petition and it was being prosecuted since the year 2010 onwards, I permit the petitioner to seek such review within a short time, despite lapse of the limitation period prescribed under Rule 21. 6. Therefore the writ petition is disposed of directing the petitioner to file review against Ext.P5 Judgment before the State Transport Appellate Tribunal, Ernakulam within a period of two weeks from the date of receipt of a copy of this judgment, along with an application for getting herself impleaded in the appeal in question. If any such applications are received by the State Transport Appellate Tribunal within the time stipulated as above, the same shall be considered on merits and disposed of in accordance with law. Needless to say that the 3rd respondent will have the liberty to object such applications on available grounds. Sd/- C.K.ABDUL REHIM, JUDGE. okb True copy P.A to Judge