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 11TH JUNE 2010 / 21ST JYAISTHA 1932 W.A.No. 953 of 2010 ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.10396/2010 Dated 26/03/2010 .................... APPELLANT(S): NOT A PARTY IN THE WRIT PETITION: ------------------------------------------------------------------------------------- 1. SIBI JOHN, PULINGAPPALLIL HOUSE, ETTUMANOOR P.O., KOTTAYAM. 2. TOMY CHANDY, VALIYAPARAMBIL HOUSE, THIRUVAMPADY, NEEZHOOR, KOTTAYAM. 3. M.V.THOMAS, MEENKOLIL HOUSE, THAMARACHAL, KIZHAKKAMBALAM, ERNAKULAM. 4. JOHN THOMAS, MYALIL HOUSE, KALLARA SOUTH P.O., VAIKOM. BY ADV. SRI.K.V.GOPINATHAN NAIR SMT.G.CHITRA RESPONDENTS/PETITIONER AND RESPONDENT IN THE W.P.: --------------------------------------------------------------------------------------------------- 1. C.R.MANOHARAN, S/O.LATE RAGHAVAN, KARAYATHARA HOUSE, POONITHURA, ERNAKULAM DIST. 2. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, ERNAKULAM. GOVERNMENT PLEADER SRI.I.V.PRAMOD SRI.SAJEEV KUMAR K GOPAL FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.953 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of June 2010 JUDGMENT Basheer, J. Appellants were not parties to the writ petition which has culminated in the impugned judgment. They have filed this appeal after obtaining leave. 2. Sri.Sajeev Kumar K Gopal accepts notice for respondent No.1 and learned Government Pleader accepts notice for respondent No.2. We have heard learned counsel for the parties. 3. Respondent No.1, who is admittedly a stage carriage operator, filed the writ petition under Article 226 of the Constitution of India praying for issue of a writ in the nature of mandamus commanding respondent No.2, the Regional Transport Authority, Ernakulam to consider Ext.P2 request for revision of timings of his stage carriage plying on Aluva- Kottayam route and to allot certain available “vacant time slots” to his stage carriage. The learned Single Judge disposed of the writ petition at the admission stage itself granting the relief as prayed for. 4. Appellants take exception to the conduct of respondent No.2, alleging that he has obtained the impugned order from the learned Single Judge suppressing very many material and vital facts. It is further contended that there is no change of circumstances warranting a revision of the time schedule allotted to respondent No.1 under Ext.P1 proceedings issued by respondent No.2 in the year 2007 and for that reason alone the W.A.No.953 OF 2010 :: 2 :: prayer for a direction to respondent No.2 to consider Ext.P2 ought to have been repelled in limine. 5. It is further contended by the learned counsel that respondent No.1 has resorted to this devious method after failing in his earlier attempts to get the timings rescheduled. It is pointed out that on the previous occasion also respondent No.1 had alleged that rescheduling was necessary, since there was change of circumstance. But not only respondent No.2 but the State Transport Appellate Tribunal, and more importantly this court, had concurrently found that there was no change of circumstance warranting revision of timings. 6. Per contra, it is contended by learned counsel for respondent No.1 that a perusal of the writ petition will unambiguously show that nothing had been suppressed as alleged. It is true that on a previous occasion, his attempt to get the time slots rescheduled had failed. But going by the provisions contained in Rule 212 of the Kerala Motor Vehicle Rules, it is open to respondent No.1 to make a request to the authority concerned to revise the timings in changed circumstances. In this context, learned counsel submits that he had specifically referred to two or three vacant time slots which could persuade the authority concerned to change the timings. W.A.No.953 OF 2010 :: 3 :: 7. Having heard learned counsel for the appellants and respondent No.1 and having perused the materials available on record, we do not propose to deal with the rival contentions raised by them at this stage at length. But it has to be noticed that the appellants and respondent No.1 had been involved in a series of litigations over the same issue, both before the Tribunal as well as this court. Therefore, it cannot be assumed that respondent No.1 might have been unaware that any rescheduling of the timings would have some repercussions on the time slots allotted to the appellants also. Therefore, it would have been only appropriate if respondent No.1 had impleaded the appellants in the writ petition as is rightly contended by the learned counsel for the appellants. 8. Be that as it may. As we have already indicated, we do not propose to moralise the issue. The short question is only what is the way out to give a level playing field to both sides. Learned counsel for respondent No.1 submits that timing conference has been scheduled to be held on June 15, 2010. He asserts that not only the appellants but all the other affected parties in that sector will necessarily be invited. The appellants will undoubtedly get opportunity to ventilate their grievance, if at all they have any, in case the authority decides to make some changes in the time slots now allotted to respondent No.1. W.A.No.953 OF 2010 :: 4 :: 9. But learned counsel for the appellants has yet another serious contention. He points out that the very maintainability of Ext.P2 application is suspect, especially, for the reason that this court has already found that no rescheduling of timings is warranted, since there is no change of circumstance. Learned counsel submits that the direction issued by the learned Single Judge in the impugned judgment will ipso facto decide the fate of the case. The authority may not consider the question of maintainability at all, he submits. There is some force in the above contention. Anyhow, without expressing any opinion on the question of maintainability of Ext.P2, we make it clear that it will be open to the appellants to raise the above contention before respondent No.2 in which event, the authority concerned shall consider the said issue at the threshold itself. Needless to mention appellants, respondent No.1 and all others shall be afforded sufficient opportunity to be heard before any decision is taken on Ext.P2. With these directions, the writ appeal is disposed of. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes