K.R. Surendran & Others v. Regional Transport Authority, Thrissur; Secretary, Regional Transport Authority, Thrissur; and K. P. Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939** ## **WP(C).No. 19169 of 2017 (U)** ## **----------------------------** **PETITIONER(S): ------------------------** ## **1. K.R.SURENDRAN,** - **64 YEARS, S/O. RAMANKUTTY, KOCHATH HOUSE, ANTHIKKAD P.O, PADIYAM.** **2. T.K.MANZOOR, S/O. KOCHUMOHAMMED,** - **THIRUTHIKKATTIL HOUSE, ANTHIKAD, THRISSUR.** **3. SAHESH, S/O. SATHYAN, VAZHINADAKKAL HOUSE, VADANAPPILLY P.O, THRISSUR.** ## **BY ADV. SRI.P.DEEPAK** ## **RESPONDENT(S):** - **----------------------------** ## **1. THE REGIONAL TRANSPORT AUTHORITY, THRISSUR -680 002** ## **2. THE SECRETARY,** ## **REGIONAL TRANSPORT AUTHORITY, THRISSUR-680 002.** **3. K.P.ANTONY, KAKKASSERY HOUSE, MATTOM P.O, THRISSUR -681 105** ## **R1 & R2 BY SR GOVERNMENT PLEADER SRI.PAUL K. VARGHESE R3 BY ADV. SRI.K.V.GOPINATHAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-11-2017, ALONG WITH WPC.NO. 33151/2017, THE COURT ON 10-11-2017 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 19169 of 2017 (U)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **---------------------------------------** **EXHIBIT P1 A TRUE COPY OF THE REGULAR PERMIT ISSUED TO THE 1ST PETITIONER** - **EXHIBIT P1(A) A TRUE COPY OF THE REGULAR PERMIT ISSUED TO THE 2ND PETITIONER** - **EXHIBIT P1)B) A TRUE COPY OF THE REGULAR PERMIT ISSUED TO THE 3RD PETITIONER** - **EXHIBIT P2 A TRUE COPY OF PROCEEDINGS OF THE 1ST RESPONDENT DATED 12-03-2015 (RELEVANT EXTRACT)** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 02-07-2015 IN WPC NO.18851 OF 2015** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 01-12-2015** - **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 29/12/2015** - **EXHIBIT P6 TRUE COPY OF THE NOTICE FOR TIMING HEARING DATED 16-05-2017** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 12-04-2017 IN MVARP NO.30 OF 2016** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 18-12-2009 IN W.A NO 2877 OF 2009** ## **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** - **EXHIBIT R3(A) TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 12/6/2001 ISSUING TIMINGS TO STAGE CARRIAGE KL-08/P 9484.** - **EXHIBIT R3(B) TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT R3(C) TRUE COPY OF THE ORDER IN R.P.NO.932/2015 DATED 6/11/2015.** - **EXHIBIT R3(D) TRUE COPY OF THE REQUEST SUBMITTED BY THE PRESIDENT, VENKIDANGU GRAMA PANCHAYATH BEFORE THE 2ND RESPONDENT.** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) Nos.19169 & 33151 of 2017 ----------------------------------------------Dated this the 10[th] day of November, 2017** ## **JUDGMENT** The captioned writ petitions are materially connected in respect of order passed by the State Transport Appellate Tribunal (STAT) in M.V.A.R.P No.30 of 2016 dated 12.04.2017. W.P.(C) No. 19169 of 2017 is challenging the said order marked as Ext.P7, whereas W.P.(C) No.33151 of 2017 is filed seeking implementation of the said order, which is marked as Ext.P8. Therefore, I heard them together and propose to deliver a common judgment. 2. Petitioners in W.P.(C) No.19169 of 2017 are stage carriage operators conducting service on the strength of regular permits, evident from Ext.P1 series of document. Petitioner in W.P.(C) No.33151 of 2017 is the 3rd respondent in the other writ petition. 3. By Ext.P2 proceedings of the 1st respondent dated 12.03.2015, 3rd respondent was granted with a regular permit on the route Triprayar-Chavakkad-Thrissur, a route that substantially overlaps the routes covered by Ext.P1 series of **W.P.(C) Nos.19169 & 33151/17** 2 permits issued to the petitioners. Even though regular permit was granted to the 3rd respondent subject to settlement of timings, the 3rd respondent, alleging delay in the settlement of timings and consequential issue of the sanctioned permit, filed W.P.(C) No.18851 of 2015 and secured Ext.P3 judgment, directing to issue permit after affording the affected parties an opportunity of being heard. 4. According to the petitioners, the Secretary, R.T.A, in the guise of implementing the said judgment of this Court, proceeded to issue the regular permit without notice to the affected operators and without settling the timings as ordered by the RTA, evident from Ext.P4. It is also contended that, the Secretary conveniently misquoted Ext.P3 judgment rendered by this Court. Anyhow, consequent to the objections raised by the petitioners, Secretary convened a timing conference on 29.12.2015, evident from Ext.P5 proceedings. It is submitted that, Ext.P5 would reveal that the timings were settled in due compliance with the principles of natural justice. 5. Being aggrieved by Ext.P5 order, 3rd respondent filed revision before the STAT. It is contended that, the petitioners or any of the persons participated in the timing **W.P.(C) Nos.19169 & 33151/17** 3 conference were not made parties and the 3rd respondent operated his stage carriage with Ext.P5 timings, apparently for the reason that the Tribunal did not grant any order of stay. The petitioners came to know of the pendency of the revision before the Tribunal only after 16.05.2017, when the Secretary issued Ext.P6 notice convening a timing conference on 31.05.2017 for resettling the timings of the 3rd respondent's service. It is also submitted that the conduct of the timing conference on 31.05.2017 was objected to by the petitioners herein, as they sought time to ascertain the facts leading to the disposal of the revision before the Tribunal. According to the petitioners, on enquiry, it was found that the revision was disposed of by the Tribunal as per Ext.P7 order. It is thus challenging Ext.P7, the said writ petition is filed. 6. A counter affidavit is filed by the 3rd respondent, disputing the claims and demands raised by the petitioners in the writ petition and also denying the allegations made thereunder with respect to the filing of revision before the Appellate Tribunal. Other circumstances are also pointed out in the counter affidavit justifying the reasons for re-settling the timings provided to the 3rd respondent as per Ext.P5. **W.P.(C) Nos.19169 & 33151/17** 4 7. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition and controverting the statements made in the counter affidavit filed by the 3rd respondent. 8. As I pointed out earlier, W.P.(C) No. 33151 of 2017 is filed by the 3rd respondent in the other writ petition, seeking implementation of the order of the Tribunal passed in revision. 9. Heard learned counsel for the petitioners in the writ petitions respectively, and the learned Senior Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties. 10. The predominant contention advanced by learned counsel for the petitioners in W.P.(C) No.19169 of 2017 is to the effect that, the order passed by the Tribunal in the revision petition filed by the 3rd respondent cannot be sustained for the reason that, the Tribunal did not enter into any finding with respect to any perversity or illegality in the impugned order passed by the statutory authority. According to the learned counsel, without interfering with the order passed by the statutory authority, there is no scope for a remand for reconsideration of the settlement of timings on the basis of the **W.P.(C) Nos.19169 & 33151/17** 5 concession made by the rival operators. It is also contended that, by virtue of Ext.P8 judgment in W.A.No.2877 of 2009 dated 18.12.2009, all the _enroute_ operators who have participated in the timing conference should have been made parties in the revision filed before the Appellate Tribunal. Having not done so, the order passed by the Tribunal in revision is arbitrary and illegal and requires interference of this Court invoking the powers conferred under Article 226 of the Constitution of India. 11. Learned counsel for the 3rd respondent, on the other hand, submitted that the Tribunal has not passed any orders adverse to the petitioners and the Tribunal has only remanded the matter for _denovo_ consideration after providing opportunity of hearing to all affected parties, and therefore, petitioners can never said to be aggrieved by the order passed by the Tribunal in revision. Learned counsel has also invited my attention to a Division Bench judgment of this Court in _**'Thomas Lucka v. Secretary, R.T.A**_ ' [1991 (2) KLT 229], in order to canvass the proposition that all the _enroute_ operators need not be made parties. Paragraph 10 of the judgment is relevant in this context, which read thus: 6 **W.P.(C) Nos.19169 & 33151/17** _“10. Learned Judge also held that proviso requires an opportunity to represent his case being given only to an operator the timings given to whom are sought to be varied. Rule 212 deals with general orders or special orders issued from time to time. Necessarily, they deal with variations made or sought to be made in regard to timings of any stage carriage. It would be useful to examine the language of the proviso to Rule 212(3) carefully. It reads:_ _“............. shall not however vary the timings of a service without giving to the interested permit holders an opportunity to represent their case”. (emphasis supplied)._ _The language does not spell out the conclusion that only the person, the timings of whose stage carriage are sought to be varied is entitled to an opportunity to represent his case. All interested permit holders are entitled to an opportunity to represent their case, whenever the timings of “a service” are sought to be varied. The right is not confined only to the operator the timings of whose stage carriage is to be varied. The right is also available to other permit holders, who may have a real and substantial interest in the timings of a service. However, personal notice to all such permit holders would not be practicable. It is sufficient if a notice is published in the notice board of the Office of the authority, though individual notice will have to go to the owner of the stage carriage the timings of whose service are sought to be varied and the owner of the stage carriage at whose instance variation is sought in be made.”_ ## 12. Having evaluated the fact situations and assimilating the circumstances pointed out by learned counsel on either side, in my view, the sole question to be considered is whether any manner of interference is warranted to the revisional order passed by the Tribunal in MVARP No.30 of 2016. The operative portion of the said order contained in **W.P.(C) Nos.19169 & 33151/17** 7 paragraph 4 is extracted for ready reference: _“4. In the result, the revision petition is disposed of directing the respondents to hear the matter afresh and pass fresh orders after hearing all the affected parties thereto. Until a fresh decision is taken by the Regional Transport Authority after taking into consideration of the entire aspects, the impugned order is allowed to stand without any change. Needless to say that, all the affected parties shall be put on notice in the exercise.”_ 13. On a reading of Ext.P7, it is evident that one of the operators got himself impleaded as additional 3rd respondent in the proceedings before the Tribunal. Paragraph 3 of the order makes it clear that, when the matter was taken up for hearing, the 3rd respondent (revision petitioner) submitted that the appeal may be remanded back to the authority concerned for fresh consideration without setting aside the impugned order. The said submission was recorded and the direction was issued as quoted above. 14. The paramount contention advanced by learned counsel for the petitioners is that, without entering into a finding with respect to the illegality of the order passed by the statutory authority, the stand adopted by the Tribunal in remanding the matter is not legally sustainable. It is also contended that, petitioners are aggrieved persons and **W.P.(C) Nos.19169 & 33151/17** 8 therefore, without they being in the party array, the Tribunal should not have ventured to do so. Learned counsel for the 3rd respondent made his submissions in accordance with the pleadings mainly relying on the judgment in _**'Thomas Lucka**_ ' ( _supra_ ). 15. In my considered opinion, if the Tribunal had passed any order entering into any finding advantageous to the 3rd respondent, it could have been said that the order passed by the Tribunal is affecting the other _enroute_ operators, and thus enabling the statutory authority to pass an order based on such favourable finding in respect of the 3rd respondent. Here is a case where the Tribunal has remanded the matter for fresh consideration after hearing all the affected parties. Therefore, it cannot be said that there is any finding rendered in favour of the 3rd respondent so as to be aggrieved by the order passed by the Tribunal. It is true, normally, a remand is made on the basis of any findings rendered against the order of the statutory authority. But, in my considered opinion, since the remand made is without making any finding on the order passed by the statutory authority, it cannot be said that the petitioners are aggrieved by such an order. Even though **W.P.(C) Nos.19169 & 33151/17** 9 learned counsel has relied on a Division Bench judgment of this Court in W.A.No.2877 of 2009 referred to _supra_ , the same was rendered under a circumstance where a finding was rendered in favour of the appellant therein. Paragraph 4 is relevant to the context, which read thus: _“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. 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._ **==> picture [297 x 36] intentionally omitted <==** 16. On a reading of the said judgment, it is evident that, consequent to the order passed by the Tribunal without the aggrieved persons in the party array, they were affected, and if this Court had not interfered with the same, the statutory authority had no other option than to comply with the directions contained in the order of the Tribunal. **W.P.(C) Nos.19169 & 33151/17** 10 Therefore, in my considered opinion, the said judgment has no bearing to the facts and circumstances involved in this case. 17. In that view of the matter, I think it is only appropriate that the writ petitions are disposed of, directing the respondents to comply with the directives contained in the judgment in M.V.A.R.P No.30 of 2016, at the earliest possible, and at any rate, within six weeks from the date of receipt of a copy of this judgment. 18. I make it clear that, the matter shall be finalized after providing notice of hearing to all the _enroute_ operators. I also make it clear that the observations and findings contained above shall not be construed as any expression of opinion on the merits of the matter or rival interest of the parties. The writ petitions are disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/07.11.2017