Vahida and Ahammedkutty v. Secretary, Regional Transport Authority, Malappuram and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940 OP(C).No. 1185 of 2018** **MVARP 113/2017 OF S.T.A.TRIBUNAL,ERNAKULAM** **PETITIONER(S):** **1 VAHIDA, W/O. YOONUS, PAIKKAT HOUSE, PATHANAPURAM, VALILAPUZHA P.O, PIN - 673 639.** **2 AHAMMEDKUTTY, S/O. KUNHIMUTTY, 2/258, PANTHALAMCHERRY HOUSE, KOZHUKOOR, MORAYOOR, MALAPPURAM.** **BY ADV.SRI.K.V.GOPINATHAN NAIR** **RESPONDENT(S):** **1. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, MALAPPURAM, PIN - 676 505.** **2. SMT. RASEENA, W/O. MUHAMMED, PALLIPARAMBAN HOUSE, KIZHUPARAMBA P.O, AREACODE, MALAPPURAM - 673 639.** **3. REGIONAL TRANSPORT AUTHORITY, REPRESENTED BY THE SECRETARY, MALAPPURAM - 676 505.** **R1 & R3 BY GOVERNMENT PLEADER** **R2 BY ADV. SRI.STALIN PETER DAVIS** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-06-2018, THE COURT ON 12-06-2018, DELIVERED THE FOLLOWING:** ## **PBS** ## **OP(C).No. 1185 of 2018 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE REGULAR PERMIT OF THE 1ST PETITIONER. EXHIBIT P2 TRUE COPY OF THE DECISION OF THE REGIONAL TRANSPORT AUTHORITY, MALAPPURAM DATED 11.7.2016. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER. EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.13510/2017 DATED 12.4.2017 OF THIS HON'BLE COURT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 9735/2017 DATED 15.6.2017 OF THIS HON'BLE COURT. EXHIBIT P6 TRUE COPY OF THE DECISION OF THE REGIONAL TRANSPORT AUTHORITY DATED 10.5.2017. EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN M.V.A.R.P NO.113/2017 DATED 30.12.2017 OF THE STATE TRANSPORT APPELLATE TRIBUNAL. EXHIBIT P8 TRUE COPY OF THE NOTICE WITH REGARD TO THE TIMING CONFERENCE ADJOURNED TO 10.5.2018 BY THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS** **EXHIBIT R2(A) A TRUE COPY JUDGMENT IN WP(C) 12220/18 DT. 9/4/18.** ## **/TRUE COPY/** **PS TO JUDGE** **PBS 13/6/2018** ## **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = O. P. (C) No.1185 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 12[th] day of June, 2018** ## **J U D G M E N T** Can an existing permit holder challenge the grant of a new permit to another; if yes, then to what extent? The law has been laid down by a Larger Bench of this Court in _**Ratheesh M. C. and Another v. Secretary, Regional Transport Authority [2015 (1) KLT 248]**_ as follows: (1) The existing permit holder has no right to challenge grant of permit under the Act, 1988 on the sole ground that such grant shall adversely affect their commercial interest. For the above purpose, he cannot be treated to be “a person aggrieved” within the meaning of S.90 of the Act, 1988. (2) The existing permit holder can be treated to be “aggrieved person” within the meaning of S.90 of the Act, 1988 in the event his challenge to the grant of permit is on the ground of any violation of the provisions of the Act or O. P. (C) No.1185 of 2018 :- 2 :- Rules. (3) The proviso to R.212 gives a statutory right to the existing permit holder to be heard in the event timings of his service is sought to be changed. However, his right under the proviso to R.212 confines to challenge the variation of timings and the said right cannot be read as a right to challenge the very grant of permit. (4) The Full Bench judgment in Binu Chacko's case (supra) is explained and clarified in the above manner.” Therefore, generally the right of an existing operator is only to voice a grievance regarding the timings and not regarding the grant of permit. However, as laid down by the Larger Bench, there are exceptions to the said general proposition, like grant of permit in violation of statutory provisions. 2. The petitioners are existing permit holders. On 11.07.2016, the second respondent, was granted permit with a direction to produce the records of suitable stage carriage within 30 days from the date of communication, in terms of Rule 159(2) of O. P. (C) No.1185 of 2018 :- 3 :- the Kerala Motor Vehicle Rules, 1989 (herein after referred to as “Rules”. The certificate of registration of the vehicle was not produced within the period of 30 days as was directed. The second respondent, on 18.04.17 produced details of the vehicle. The first petitioner had in the meanwhile, submitted a representation to the first respondent requesting to drop further proceedings regarding grant of permit to the second respondent since the particulars of the vehicle was not made available by the second respondent within the period stipulated or within the period of four months provided for under Rule 159(2) of the Rules. The second respondent approached this Court in W.P.(C) No.13510/17 seeking a direction to the first respondent herein to issue permit in terms of the original order stating that though the petitionersecond respondent herein could not produce the details of the vehicle within a period of 30 days, she had filed an application for extension of time and the same is pending. The first petitioner herein, in the meanwhile, had already approached O. P. (C) No.1185 of 2018 :- 4 :- this Court, by way of W.P.(C) No.9735/17, apprehending that extension of time would be sought for by the second respondent herein. It was further pointed out that already an objection has been filed by the first petitioner regarding extension of time. W.P.(C) No.13510/17 was disposed of by this Court directing the first respondent to take a decision on the application filed by the second respondent herein for extension of time, clarifying that the issuance of permit, if the application is allowed, shall be subject to the outcome of W.P.(C) No.9735/17. Thereafter, on 15.06.17, W.P.(C) No.9735/17 was disposed of directing the first respondent herein to consider the objection submitted by the first petitioner herein regarding grant of extension of time for the second respondent. Noticeably, in the meanwhile, on 10.05.17, the first respondent passed an order rejecting the application in terms of Rule 159(2). It was held that the Authority does not find any reason to condone the delay. The second respondent herein challenged the order of the RTA before the O. P. (C) No.1185 of 2018 :- 5 :- Appellate Tribunal. The Appellate Tribunal as per order dated 30.12.17 allowed the revision and directed issuance of permit to the second respondent herein. The said order is under challenge in this original petition. 3. The grounds of challenge urged are─(1) violation of Rule 159(2) of the Motor Vehicle Rules insofar as extension of time could not be granted beyond the period of four months as mandated under the Rule; (2) the petitioners were necessary parties to the revision, but were not impleaded. 4. As held by the Larger Bench of this Court, when there is allegation of violation of a statutory provision, an existing operator could be considered as a person aggrieved or affected by the order. If the impugned order was one passed by the RTA-first respondent, the petitioners would be entitled to challenge the same before the Appellate Tribunal under Section 90 of the Motor Vehicles Act. So also is the fact that going by the judgments of this Court in W.P.(C) Nos.13510/17 and 9735/17 referred to supra, the objections of the O. P. (C) No.1185 of 2018 :- 6 :- petitioners herein are also to be considered. This is apparent in view of the direction in W.P.(C) No.13510/17 that the issuance of permit to the second respondent will be subject to the outcome of W.P.(C) No.9735/17 and the direction in the latter writ petition, to the first respondent to consider the objection of the first petitioner herein also. It is pertinent to note that, even in the impugned order the Appellate Tribunal has clarified that the issuance of permit will be subject to the outcome of W.P.(C) No.9735/17, though in the meanwhile, the same was already disposed of directing consideration of the objections raised by the first petitioner herein. Suffice to notice that the petitioners herein also have, in the circumstances, a right to be heard in the proceedings, before grant of extension of time to the second respondent. The petitioners, if not necessary parties, could be held to be proper parties to M.V.A.R.P. No.113/17. 5. In the result, order dated 30.12.17 in M.V.A.R.P. No.113/17 of the State Transport O. P. (C) No.1185 of 2018 :- 7 :- Appellate Tribunal, Ernakulam, is set aside. The petitioners herein shall stand impleaded in the said proceedings as additional respondents 3 and 4. The Appellate Tribunal shall pass fresh orders after hearing all the parties. The revision petition shall be disposed of within a period of one month from the date of receipt of a copy of this judgment. In the meanwhile, regarding the issuance of permit, status quo as on today shall be maintained. The original petition is allowed as above. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge