IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 11518 of 2009(H) -------------------------- PETITIONER(S): --------------- P.V.MATHEW, AGED 53, S/O.VARKEY, PULIKAYIL HOUSE CHOTTUPARA, POOMALA PO TRICHUR. BY ADV. SRI.P.GOPALAKRISHNA MENON SRI.M.JITHESH MENON RESPONDENT(S): --------------- 1. T.J.JOHN, THARAYIL HOUSE PO ARIMBOOR, TRICHUR 2. THE REGIONAL TRANSPORT AUTHORITY TRICHUR, REPRESENTED BY ITS SECRETARY 3. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY TRICHUR 4. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION TRICHUR 5. THE STATE TRANSPORT APPELLATE TRIBUNAL ERNAKULAM ADV. SRI.A.INEES FOR R1 SR. GOVERNMENT PLEADER SRI.K.S.MOHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.11518/09 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF TIMINGS DT 18.7.07. P2 COPY OF THE ORDER OF R2 DT 22.8.07. P3 COPY OF THE OBJECTION DT 24.11.08 P4 COPY OF ORDER OF R2 DT 25.11.08 P5 COPY OF PETITION FOR IMPLEADMENT DT 27.1.09. P6 COPY OF COUNTER AFFIDAVIT DT 5.2.09. P7 COPY OF REPLY AFFIDAVIT DT 9.2.09 P8 COPY OF ORDER DT 11.3.09. RESPONDENT'S EXHIBITS R1(A) COPY OF ORDER THE TRIBUNAL DT 10.12.07 R1(B) COPY OF MVAA.15/09 FILED BY R1 BEFORE R5 R1(C) COPY OF SKETCH OF THE ROUTES OF THE PETITIONER AND R1 R1(D) COPY OF TIMINGS PROPOSED BY R1. // True Copy // P.A. to Judge S. SIRI JAGAN, J ............................................... W.P(C) No. 11518 of 2009 H ................................................. Dated this the 9th day of September, 2009 J U D G M E N T The petitioner is an existing operator on the route Oorakam-Pattambi via Thrissur, Wadakkanchery, Shornur and Kulappully. The 1st respondent also holds a permit on the route Anthathod - Ottappalam which runs through part of the route in which petitioner operates. The 1st respondent applied for two extensions in respect of two trips and revision of his timings in tune with the extension. The petitioner objected to the same on the ground that the grant of the variation sought for would upset the entire timings, which would be detrimental to the petitioner. The 2nd respondent, taking into consideration, the objection raised by the petitioner, also rejected the application for variation submitted by the 1st respondent. The 1st respondent challenged Ext.P4 order before the State Transport Appellate Tribunal by filing appeal No. M.V.A.A. No. 15/09. The 1st respondent did not choose to implead the petitioner as a party to the appeal. The petitioner filed Ext.P5 application for getting himself impleaded in the appeal. That application was rejected by the Tribunal by Ext.P8 order on the ground that the petitioner W.P(C) No. 11518 of 2009 -2- is aggrieved only by the timings and he can raise his objections at the time of settlement of timings. The petitioner is challenging Ext.P8 order. The contention of the petitioner is that for granting the variation applied for, necessarily, the entire timings of the 1st respondent have to be changed which will adversely affect the petitioner’s permit. Therefore, according to him, even if he is not a necessary party, he is a proper party and therefore he is entitled to be impleaded in the appeal. 2. The 1st respondent opposes the petitioner’s contention. According to him, an existing operator is not entitled to object to the grant a permit to another operator, which would include variation of the permit also which is the law laid down by Full Bench of this Court in Binu Chacho v. RTA, Pathanamthitta [2006 (2) KLT 172 (FB)]. The 1st respondent would further contend that as is evident from Ext.P7, the petitioner himself had categorically admitted that the petitioner has no objection to the variation at all. If he has no objection to the variation and his objection is only regarding timings, then he can raise all his objections at the time of settlement of timings for which purpose the petitioner need not be impleaded in the appeal filed by the 1st respondent is the contention raised by the 1st respondent. W.P(C) No. 11518 of 2009 -3- 3. The petitioner would contend that even though he is not aggrieved by the variation as such, since that variation would result in change of the entire timings, the grant of the variation would itself affect the petitioner and therefore even though he has no objection in granting the variation in view of the unavoidable change of timings as a result of the variation he is entitled to be impleaded in the appeal. He also points out that as is clear from Ext.P4, that was also one of the ground on which the variation sought for was rejected. Therefore according to him, he is certainly a proper party to be impleaded in the appeal. 4. I have heard the rival contentions in detail. 5. The order impugned in the appeal is Ext.P4 which reads thus: “1. There is extension of route from Thrissur to Ayyanthole in which a distance of 2 Kms from Thrissur to West Fort objectionable overlaps notified route Kottayam - Kozhikode. The route violates clause 4 of Notification No. 6122/B1/2008/Tran dated 15.09.2008. 2. There is no change of circumstances for allowing variation of permit u/s. 80 (3) and KMV Rule 145 (7). 3. Most of the timings offered in the proposed route are changed. The intention of the applicant is to revise the existing timings by way of variation. 4. The change of timings will adversely affect the regular passengers presently enjoyed on the route Andathode - Ottappalam. W.P(C) No. 11518 of 2009 -4- 5. Strong objection from Public.” (Underlining supplied) That essentially means that a variation requested for by the 1st respondent has been rejected by that order. It is true that in Binu Chacho's case this court had held that an existing operator cannot object to grant of permit to another operator. But the Full Bench themselves had held that appeal is available to a person aggrieved by refusal to grant a permit or by variation of any condition attached to a permit granted. Here what the 1st respondent seeks is variation on a condition attached to his permit. If that variation had been allowed then the petitioner would certainly have been entitled to file an appeal against grant of that variation in view of the Full Bench decision itself. If he is entitled to file an appeal against grant of variation, certainly he is entitled to be impleaded in an appeal filed by the 1st respondent against the rejection of the application for variation. Therefore, I do not find any merit in the contention raised by the 1st respondent on the basis of the Full Bench decision. Although, in Ext.P7 the petitioner had specifically admitted that he has no objection to the grant of variation it is a fact that the application for variation submitted by the 1st respondent was rejected also on the ground that “most of the W.P(C) No. 11518 of 2009 -5- timings offered in the proposed routes are changed and the intention of the applicant is to revise the existing timings by way of variation”. Therefore, even if the petitioner has no objection to the grant of variation as such, since his objection regarding grant of variation on the ground that the timings offered for the proposed variation would be changed and the intention of the 1st respondent is for getting the timings revised, I do not think that 1st respondent can validly oppose the impleading of the petitioner. Even otherwise the 1st respondent would not be in any way prejudiced if the petitioner is impleaded as a party to the appeal. Therefore, I hold that the petitioner is a proper party to be impleaded in the appeal. In view of that finding, Ext.P8 order in M.P. No.201 of 2009 in M.V.A.A. No. 15 of 2009 is liable to be set aside. Accordingly, I set aside Ext.P8 order. M.P. No. 201 of 2009 would stand allowed and the petitioner would stand impleaded as additional respondent in the M.V.A.A. No. 15 of 2009. The State Transport Appeal Tribunal shall proceed further with the appeal accordingly. S. SIRI JAGAN, JUDGE rhs