IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 W.A.No. 2877 of 2009 ----------------------------------- AGAINST THE JUDGEMENT IN WPC.32997/2009 Dated 07/12/2009 .................... APPELLANT/2ND RESPONDENT: ----------------- ABDUL GAFOOR KHAN P.T., S/O. MUHAMMEDALI, PARATHODI HOUSE, MANJERI. BY ADVS. SRI.SAJEEV KUMAR K.GOPAL & SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S)/PETITIONER AND 1ST RESPONDENT: ----------------------- 1. A. ABDUL KARIM, S/O.KUNJIMUHAMMED HAJI, ALANGADAN HOUSE, KARAKUNNU, MANJERI. 2. SECRETARY, REGIONAL TRANSPORT AUTHORITY, MALAPPURAM. R1 BY ADV. SRI. K.V. GOPINATHAN NAIR. R2 BY GOVT. PLEADER SRI. NOBLE MATHEW. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A. No.2877 of 2009 ------------------------------ Dated this, the 18th day of December, 2009 JUDGMENT Balakrishnan Nair, J. The second respondent in the Writ Petition is the appellant. This appeal is filed by him challenging the interim order passed by the learned Single Judge. The brief facts of the case are the following: The writ petitioner is a stage carriage operator operating on the route Areacode - Chembrassery, in accordance with Ext.P1 time schedule. The appellant/second respondent was granted a regular permit on the route, Manjeri - Pandikkad, subject to settlement of timings. His time schedule was settled as per Ext.P2, which also modified Ext.P1 time schedule of the writ petitioner, so as to find a time gap for the service of the appellant. Later, the appellant, who was dissatisfied with the time schedule granted as per Ext.P2, filed a revision, Ext.P3, before the State Transport Appellate Tribunal (for short, 'the Tribunal') challenging Ext.P2. Except the R.T.A., Malappuram W.A.No.2877 of 2009 - 2 - and its Secretary, none of the operators on the route, who may be affected, including the writ petitioner, was impleaded in the said revision. But, the Tribunal, by Ext.P4 order, allowed the revision holding that the grievance of the appellant is genuine. The operative portion of the order of the Tribunal reads as follows:- “2. Having gone through the averments in the revision petition in the light of the impugned timings, I am of the view that the grievance of the petitioner is not unreal or imaginary. Accordingly, I am inclined to set aside the impugned order, thereby remanding the matter to the second respondent to resettle the impugned timings in respect of the petitioner's service after giving him and other affected operators on the route an opportunity of being heard. In the result, this revision petition is allowed to the extent of setting aside the impugned order and remanding the matter to the second respondent to resettle the timings of the petitioner's service after giving him as also the affected operators an opportunity of being heard. Till such resettlement of timings the status quo will continue.” (emphasis supplied). W.A.No.2877 of 2009 - 3 - Pursuant to the said direction, it appears, no action was taken by the Secretary, R.T.A. So, the appellant moved this Court by filing W.P.(C) No.23386 of 2009. The said Writ Petition was disposed of, by Ext.R2(a) judgment, directing the Secretary, R.T.A. to implement Ext.P4 order of the Tribunal and resettle the time schedule in accordance with the directions of the Tribunal. Thereafter, on 13.8.2009, a timing conference was held, to which all the affected operators were invited. The Secretary, R.T.A., after considering the objections of the rival operators, issued Ext.P5 proceedings, resettling the time schedule of the appellant. The said time schedule affected the service of the writ petitioner. Therefore, the Writ Petition was filed challenging Exts.P4 and P5. 2. According to the writ petitioner, the Tribunal should not have entertained Ext.P3 revision petition or rendered Ext.P4 judgment, without there being the affected operators like the petitioner on the party array. The said duty not only flows from the obligation of the Tribunal to act fairly, but also is mandatory, as per Section 90 of the Motor W.A.No.2877 of 2009 - 4 - Vehicles Act, 1988 and Rule 212 of the Kerala Motor Vehicles Rules, 1989. The learned Single Judge entertained the Writ Petition and granted stay of Exts.P4 order and P5 time schedule and all further proceedings pursuant to them. The appellant herein moved for vacating the interim order, after filing a counter affidavit. According to him, after the remand by the Tribunal, the Secretary, R.T.A. has heard all operators including the petitioner before Ext.P5 order was passed. The petitioner has participated in the proceedings. Only thereafter, when Ext.P5 order was issued, this Writ Petition was filed. But, the learned Single Judge by the order under appeal, declined to vacate the interim order. Hence, this appeal challenging that order. 3. The learned counsel for the appellant submitted that when revision petitions are filed before the Tribunal, challenging proceedings granting time schedule, it is not normal to implead all the operators, who participated in the timing conference, pursuant to which the impugned time schedule was issued. Secondly, it is submitted that Ext.P5 W.A.No.2877 of 2009 - 5 - order was issued, pursuant to the mandamus issued by this Court, as per Ext.R2(a) judgment. Thirdly, it is contended that Ext.P4 has already been implemented and Ext.P5 order has been issued. Therefore, the challenge against Ext.P4 is not sustainable. Finally, it is submitted that if the petitioner is aggrieved by Ext.P5 time schedule, he may file a revision petition against it before the Tribunal. 4. We notice that in Ext.P4, there is a finding in favour of the appellant, that his claim is genuine and thereafter the remand is made. So, the Secretary, R.T.A. is bound by that finding. Even if other operators on the route are heard, the Secretary, R.T.A. is bound to redress the grievance of the appellant, which has been found to be genuine by the Tribunal. Therefore, before making such an observation on merits, the Tribunal should have given an opportunity of being heard to the affected operators. It should have insisted that all those, who are operating on the route and who participated in the timing conference, based on which Ext.P2 was issued should have been impleaded. W.A.No.2877 of 2009 - 6 - Otherwise, the revision petition should have been dismissed. The illegal practice followed by the Tribunal cannot be pressed into service as a ground to defend Ext.P4. The next ground urged is the issuance of a mandamus to implement Ext.P4. The writ petitioner was not a party to Ext.R2(a) judgment. Therefore, that judgment cannot affect the rights of the petitioner and preclude him from challenging Ext.P4. When Ext.P4 is challenged, pointing out the irregularities, the learned Single Judge is justified in interfering with Ext.P4, notwithstanding the direction in Ext.R2(a) judgment. The Secretary, R.T.A. has got a duty to implement Ext.P4 as long as the same is in force. So, the mandamus for the same was issued in Ext.R2(a). But, if this Court quashed Ext.P4 for not hearing necessary parties, the same cannot be said to be unjustified. In that event, the direction to implement Ext.P4 contained in Ext.R2(a) will become infructuous. The contention that the learned Single Judge cannot touch Ext.P4, in view of Ext.R2(a), cannot be accepted. Another contention raised by the appellant that Ext.P4 order has already been implemented and therefore, the same cannot be challenged, is W.A.No.2877 of 2009 - 7 - also plainly untenable. Even if a decree is executed, an appeal against the decree can be heard and allowed. The provisions for restitution will take care of the resultant situation. Further, all proceedings taken in implementation of the decree being dependent proceedings will also collapse, once the decree is reversed. The same principle will apply here also. Finally, it is pointed out by the learned counsel for the appellant that the writ petitioner can challenge Ext.P5 by filing revision petition before the Tribunal. But, we notice that as long as the observation of the Tribunal in Ext.P4 regarding the merits of the case of the appellant remains, the said challenge will not be efficacious. In view of the above position, we find no merit in the Writ Appeal and it is accordingly dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)