IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 12222 of 2010(C) --------------------------------------- PETITIONER(S): ---------------------- K.P.MURALEEDHARAN, KURUNTHAZHA PUTHEN VEEDU, CHELORA, P.O.NOWANCHERY, KANNUR DISTRICT. BY ADV. SRI.P.DEEPAK RESPONDENT(S): -------------------------- 1. THE REGIONAL TRANSPORT AUTHORITY, KANNUR. 2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KANNUR. 3. STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM. 4. K.SAJEEVAN, CHALIYAPARAMBA HOUSE, P.O.VENGAD. R1 TO R3 BY GOVT.PLEADER SRI.K.C.SANTHOSHKUMAR R-4 BY ADV. SRI.O.D.SIVADAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON 25/06/2010 DELIVERED THE FOLLOWING: W.P.C NO.12222 OF 2010 ORDER ON I.A.NO.7959 OF 2010 IN W.P.C NO.12222 OF 2010 DISMISSED 25/06/2010 SD/- K.SURENDRA MOHAN, JUDGE //TRUE COPY// P.A.TO JUDGE K.SURENDRA MOHAN, J. -------------------------------- W.P.(C).No.12222 of 2010 ---------------------------------------- Dated this the 25th day of June, 2010 JUDGMENT The petitioner is a stage carriage operator conducting services on the route Kannur-Mattannur via Chakkarakalle, Ancharakandy and Keezhallor. The 4th respondent is also conducting service on the route Kannur-Mattannur to Kolary L.P.School. The 4th respondent had approached the 2nd respondent for the revision of his own timings. However, his request was rejected. Thereupon the 4th respondent challenged the rejection of his request by filing a revision petition before the State Transport Appellate Tribunal ('STAT' for short). However, the revision was filed by the 4th respondent without making the petitioner as well as the other objectors parties to the same. In W.P.(C). No.30604/2007 the order of the STAT was set aside for the reason that the 4th respondent had not made all the persons who had objected to the timings parties to the revision petition. The said revision petition was filed by the petitioner herein and another person. Thereafter, though W. P.(C).No.12222 of 2010 2 the 4th respondent had filed a review petition as well as a writ appeal challenging Ext.P1, both were dismissed. In Writ Appeal No.207/2008, the 4th respondent was however permitted to implead all affected parties in the revision filed by him and the STAT was directed to consider the matter afresh. 2. Pursuant to the remand, the revision filed by the 4th respondent was considered and was dismissed as per Ext.P3. The 4th respondent challenged Ext.P3 before this Court in W.P.(C).No.26646/2008. As per Ext.P4 judgment, this Court permitted the petitioner to file a fresh application seeking revision of his own timings. Accordingly the petitioner submitted a fresh application. On the basis of his request, his timings were re-settled as per Ext.P5. While re- settling the timings on 17.6.2009, all interested parties including the petitioner were heard. Shortly thereafter, the 4threspondent submitted an application proposing a variation by curtailing a portion of his route. However, the 1st respondent rejected the said application finding that such W. P.(C).No.12222 of 2010 3 curtailment of a portion of his route would affect the traveling public. The 4th respondent thereupon challenged the rejection of the application by filing an appeal before the STAT as MVAA No.409 of 2007. It is to be noticed that the 4th respondent did not make the petitioner or the other objectors parties to the said appeal, though they had participated in the timing conference conducted by the 1st respondent on 11.8.2009. The STAT after considering the matter allowed the appeal, directed the 1st respondent to grant the variation as sought for by the appellant, subject to settlement of timings. The petitioner has filed this writ petition challenging the said judgment, Ext.P7. 3. According to the counsel for the petitioner, though the petitioner had objected to the request made by the 4th respondent for the revision of his timings, in Ext.P7 appeal, he had not been made a party. It is pointed out that the variation that was sought, relates only to a very small portion of the route of the 4th respondent and was actually intended to achieve the object of procuring a change in the W. P.(C).No.12222 of 2010 4 timings subject to which the 4th respondent was operating his services. 4. The counsel for the 4th respondent Shri.O.D Sivadas on the other hand counters the above submissions by pointing out that his application was not a request for revision of timings but was one for the variation of his permit so as to change the halting place. At the meeting of the 1st respondent, though the petitioner was present, he had not objected to the variation that was sought. In spite of the above, the 1st respondent had rejected the 4th respondent's application. Since it was the rejection of a request for the variation of his permit that was challenged in the appeal before the STAT it was not necessary for the petitioner to have been made a party to the said appeal. Therefore, it is contented that the judgment Ext.P7 was not passed behind back of the petitioner. It is also pointed out that the petitioner has no right to challenge the variation granted to the 4th respondent as held by this Court in various decisions. It is further submitted that the timings W. P.(C).No.12222 of 2010 5 of the 4th respondent on the varied route have not been settled and therefore the grievance if any of the petitioner would arise only upon such settlement of his timings. Since the petitioner has no grievance to be agitated, it is submitted that this writ petition is liable to be dismissed. The 4th respondent also relies on the judgment of this Court in W.P.(C).No.21282 of 2007 which has been produced as Ext.R4(a) along with his counter affidavit. 5. The counsel for the petitioner meets the above contentions pointing out that though the application of the 4th respondent was filed for variation the same was intended to obtain the revision of his timings. The object of the petitioner was to unsettle the timings that were settled as per Ext.P5 after hearing all the affected parties. Since the petitioner had also objected before the 1st respondent it is pointed out that it was necessary that the petitioner was made a party to the appeal that ended in Ext.P7 judgment. He also relies on the decision reported in Yusuf V. R.T.A., Ernakulam, (2009 (4) KLT 426) as well as the judgment W. P.(C).No.12222 of 2010 6 of this Court in W.P.(C).NO.21281/2007. 6. I have heard the learned counsel for the petitioner Shri.P.Deepak as well as Shri. O.D.Sivadas who appears for the 4th respondent. 7. It is worth noticing that the timings of the 4th respondent was initially sought to be revised by an application submitted to the 1st respondent, which was objected to by the petitioner. After hearing the objections of the petitioner also, the timings were settled on 25.4.2007. However, when the 4th respondent challenged the said proceedings in M.V.A.A.No.409 of 2007, the petitioner and the other objectors were not made parties to the same. For the said reason, as per Ext.P1 judgment, the order of the STAT was set aside. In writ appeal, the matter was remanded back with a specific direction to consider the revision petition afresh after impleading all the persons who had objected to the settlement of the timings of the stage carriage of the 4th respondent. Subsequently the matter was considered by the STAT and as per Ext.P3, the W. P.(C).No.12222 of 2010 7 revision was dismissed. The 4th respondent challenged Ext.P3 in W.P.(C).N0.26646/2008 and as per Ext.P4 judgment, the 4th respondent was permitted to submit a fresh application for the revision of his timings. Accordingly he submitted a fresh application and his timings were settled as per Ext.P5 on 17.6.2009. It is shortly thereafter, that the 4th respondent has moved his application for the variation of his permit. The said application was considered by the 1st respondent on 11.8.2009 and was rejected. It is not disputed that the petitioner was also heard in the matter. However, while filing an appeal challenging the said proceedings of the 1st respondent the petitioner was not made a party by the 4th respondent. 8. Relying on the decision of this Court reported in Binu Chacho V. R.T.A. Pathanamthitta (2006 (2) KLT 172) it is contended that an existing operator has no right to challenge the grant of permit to another operator for the only reason that it prejudicially affects his rights. It is pointed out that the said dictum has been made applicable W. P.(C).No.12222 of 2010 8 to the variation of a permit also, as is clear from Ext.R4(a) judgment. However, as per the decision reported in Yusuf V. R.T.A., Ernakulam, (Supra) it has been held that an existing operator has the right to challenge the grant of variation of an existing permit, the reason being that the grant of such variation does not amount to the issue of a fresh permit. The above decision is a later decision that has referred to all the above decisions including Ext.R4(a). The counsel for the petitioner also relies on the judgment of this Court dated 30.7.2007 in W.P.(C) No.21951/2007 to contend that the omission to implead the objectors as parties to an appeal or revision before the STAT vitiates the order/judgment passed in the appeal. 9. In the present case, as found above, though the 4th respondent has moved an application for the variation of his permit, it is not merely an application for variation of his permit but also an attempt to vary his timings. The petitioner though he was heard at the timing conference dated 11.8.2009, was not made a party to W. P.(C).No.12222 of 2010 9 M.V.A.A.No.409/2009. Since the petitioner was not made a party to the same, Ext.P7 judgment is vitiated. 10. For the above reasons, the direction contained in Ext.P7 to grant the variation as sought for by the appellant subject to the settlement of timings is set aside. Since the order rejecting the application submitted by the petitioner has also been set aside by the STAT, it is sufficient that the 4th respondent is directed to consider the application afresh after considering the objections, if any of the petitioner also. K.SURENDRA MOHAN, JUDGE. mns The figure and word “4th respondent” occurring in the last sentence of paragraph 10 of the judgment in WP(C) 12222/2010 are corrected and substituted as the “first respondent, the Regional Transport Authority, Kannur”vide order dated 03/ 01/2011 in I.A 17000/2010. Sd/- Registrar (Judicial)