HaneeFa v. M. Vijayan and The Secretary, Regional Transport Authority cum Regional Transport Officer, Malappuram & Kozhikode

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 ``` ``` WA NO. 1356 OF 2021 ``` ``` AGAINST THE JUDGMENT IN WP(C) 19439/2020 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/3RD PARTY:`** ``` HANEEFA AGED 55 YEARS, S/O. ABDDURAHIMAN, ADEEPATT HOUSE, B.P.ANGADI, TIRUR, MALAPPURAM. ``` ``` BY ADVS. I.DINESH MENON M.JITHESH MENON ``` ## **`RESPONDENTS/PETITIONER & RESPONDENT IN WPC:`** ``` 1M.VIJAYAN S/O. PANHAN, MALAYIL HOUSE, K.PURAM, THANALUR, TANUR, MALAPPURAM DISTRICT. ``` ``` 2THE SECRETARY REGIONAL TRANSPORT AUTHORITY CUM REGIONAL TRANSPORT OFFICER, COLLECTORATE P.O., MALAPPURAM-676 505 COLLECTORATE P.O., KOZHIKODE-673 020. ``` ``` BY ADVS. P.ASHA SHRI.K.P.HARISH, SENIOR G.P.(B/O) O.D.SIVADAS ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.1356 of 2021** **2** ## **JUDGMENT** Dated this the 24[th] day of February, 2022 ## **S.Manikumar, C.J.** Before the writ court, the writ petitioner has sought for the following relief: “i) issue a writ of mandamus or any other writ, order or direction directing the respondent to consider and finally dispose of Exhibit P2 request submitted by the petitioner for revision of timings in respect of his stage carriage KL 55/M 5816 operating on the route AlinchuvaduKozhikode, within a period of one month, by hearing the petitioner and others, if any, by conducting a timing conference, or otherwise as requested.” 2. Short facts leading to the filing of the writ petition are as hereunder: The petitioner is a regular stage carriage permit holder operating on the route Alinchuvadu-Kozhikode, operating now with stage carriage KL-55/M-5816. The timing of this service was last issued on 23.2.2017. Several services have been introduced through this route, covering major portions of the route. There were also revision of timings **W.A.No.1356 of 2021** **3** and also surrender of permits on this portion of the route. Petitioner has relied on Rule 145(7) of the Kerala Motor Vehicles Rules coupled with the Division Bench judgment in **Krishnankutty v. John** reported in 1992 (2) KLT 883 and in **Joji Edattel v. Secretary, KTA** reported in 2004(1) KLT 493. It is respectfully submitted that Exhibit P2 request filed by the petitioner before the Secretary, Regional Transport Authority-respondent therein, has not been considered and the petitioner is afraid to operate his services due to acute time clash with that of other stage carriage services, which ultimately will affect the safety of the public. 3. After hearing the learned counsel for the petitioner and the learned Government Pleader, writ court vide judgment in W.P.(C)No.19439 of 2020 dated 22.09.2020, issued the following directions: - “a) The respondent shall obtain a report from the Motor Vehicles Inspector and ensure that the provisional timings offered by the petitioner and noted in Exhibit P1 do not **W.A.No.1356 of 2021** **4** clash with the timings of other vehicles operating on the same route. If there is a likelihood of a clash of timings, the timing shall be modified accordingly. On the basis of the same, the respondent shall revise the timings provisionally within a period of four weeks from the date of receipt of a copy of this judgment. It is made clear that the timing so fixed shall be provisional in nature. - b) The above direction shall be subject to settlement of timings formally at a timing conference which shall be scheduled by the concerned authority. If the situation is not conducive to hold an open meeting in physical mode, the respondent may hold the conference virtually, if there are no other impediments. - c) It is also made clear that the issuance of the permit with provisional timing as directed in direction (a) above will not be seen as conferring any right on the petitioner to insist on the same timings at the time of settlement of the timings at the formal meeting to be convened by the Regional Transport Authority as per direction (b).” ## 4. Being aggrieved, instant writ appeal is filed inter alia on the following grounds: - a. This Hon’ble Court by the impugned judgment disposed of the writ petition directing that the timings suggested by the writ petitioner shall be treated as provisional timings after getting a report from the AMVI and ascertain whether there is time **W.A.No.1356 of 2021** **5** clash with the timings of existing operators also and also the convenience of the travelling public and to fix the same within a time frame on a provisional basis. Such issue of revised timings provisionally when there is already a settled set of timings, is against Rule 212 of the Kerala Motor Vehicles Rules and is not permissible as laid down by this Hon’ble Court in the decision reported in 1968 KLT 73 and 1973 KLT 266 and in all subsequent decisions. The direction contained to issue revised timings on a provisional basis is even beyond the prayer and direction contained in Ext P2 judgment. The same seriously affects the legal and legitimate rights of the appellants and the direction contained in the impugned judgment is an error or law apparent on the face of the records itself. b. In certain cases where fresh regular permit is already granted and the service could not operate for want of time schedule, after settlement of timings, this Hon’ble Court had occasion to direct issue of a set of timings provisionally in order to commence the operation pending settlement of timings. Such a procedure cannot be adopted in the case of services already operating with settled set of timings The statute does not **W.A.No.1356 of 2021** **6** contemplate the procedure in issuing revised timings provisionally when there is already a settled set of timings. Rule 212 of the Kerala Motor Vehicles Rules clearly mandates that before the revision of timings in respect of a service opportunity have to be given to the concerned operators before effecting such changes. This also postulates that there cannot be any revision of timings on provisional basis and thereafter hearing objections. As far as 1[st] respondent is concerned there is already a settled set of timings issued as per Annexure A1 and any change can be only in accordance with Rule 212 of the Kerala Motor Vehicles Rules and by convening a timing conference in which operators have to be heard. Therefore the 1[st] respondent is not entitled for any relief sought in the writ petition. c. The impugned judgment also does not provide any objections to be raised by existing operators. It also does not provide for any enquiry in terms with Rule 145[7] of the K.M.V. Rules. Revision of timings cannot be sought for as a matter of course. Any hearing conducted will be in force, as the learned single Judge had already ordered allotment of provisional timings. **W.A.No.1356 of 2021** **7** Now hasty steps are taken to implement the impugned judgment. 5. That apart, attention of this court was also invited to the decisions of this court in **Krishnankutty v. John** reported in 1992 KHC 464 and **M.C.Kumaran v. K.M.Jacob and Another** reported in 1995 KHC 214. 6. Taking note of the above, on 20.10.2021, when the matter came up for admission, we granted leave and directed the learned Senior Government Pleader to take notice on behalf of the 2[nd] respondent/Secretary, Regional Transport Authority cum Regional Transport Officer. 7. Subsequently on 25.10.2021, we admitted the writ appeal and granted stay of the directions issued in W.P. (C)No.19439 of 2020 dated 22.09.2020. 8. We also ordered notice to respondent No.1 returnable in two weeks. 9. As per the Registry’s note dated 06.01.2022, service is completed on respondent No.1 and that he has entered **W.A.No.1356 of 2021** **8** appearance. Name of the learned counsel for the respondent No.1 is shown in today’s cause list. But there is no appearance. The issue involved in the instant writ appeal has already been dealt with in the above rendered decisions, which we have taken note of in the judgment in W.A.No.936 of 2021 dated 09.08.2021. 10. For brevity, we deem it fit to extract paragraph No.11 of the judgment in W.A.No.936 of 2021: “11. Taking into account the respective submissions made across the Bar, we are of the considered view that interference is required to the judgment of the learned single Judge to the extent it directed to accept the timing suggested by the writ petitioner/first respondent as provisional timing after getting a report from the AMVI, and accordingly, we vacate the said direction and consequently there will be a direction to the statutory authority to consider the directions issued by the State Transport Appellate Tribunal in regard to the representation submitted by the writ petitioner/first respondent for revision of timing in accordance with law, after complying with all the statutory requirements including providing notice of hearing to all concerned at the earliest and at any **9** ## **W.A.No.1356 of 2021** rate within a month from the date of receipt of a copy of this judgment.” 11. In the light of the above settled position, directions issued in W.P.(C)No.19439 of 2020 dated 22.09.2020 are set aside, except the convening of timing conference by the Secretary, Regional Transport Authority cum Regional Transport Officer, Malappuram, respondent No.2. Writ appeal is allowed as above. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** **10** ## **W.A.No.1356 of 2021** ## **`APPENDIX OF WA 1356/2021`** ## **`PETITIONER’S ANNEXURES`** |`Annexure A-1`|`TRUE COPY OF THE DECISION IN 1992 (2)`| |---|---| ||`KLT 883.`| |`Annexure A-2`|`TRUE COPY OF THE DECISION IN 1995 (1)`| ||`KLJ 296.`| |`Annexure A-3`|`TRUE COPY OF THE JUDGMENT IN`| ||`W.A.NO.936/2021 DATED 9.8.2021.`| |`Annexure A-4`|`TRUE COPY OF THE JUDGMENT IN`| ||`W.A.NO.996/2021 DATED 9.8.2021.`| //true copy// P.A. to Judge