WP(C) Nos. 20705/2022 and 21369/2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944 WP(C) NO. 20705 OF 2022** ## **PETITIONER/S:** 1 P.K.MOOSA, PARUTHIKUNNEL HOUSE, P.K. BROTHERS, EDARIKODE, MALAPPURAM 2 MUHAMMED ABDUL RAHIMAN C.H. CHAKKINGATHODI HOUSE, CHETTIPARAMBA P.O., KODUR, MALAPPURAM-676504. 3 ABDUL KAREEM, S/O MOOSAKUTTY, THOTTAKKATTIL HOUSE, EDARIKODE P.O., MALAPPURAM - 4 SHAJAHAN T., S/O LATE MOIDEENKUTTY, THOOMPATHUPARAMBIL HOUSE, P.O. PARAPPUR, MALAPPURAM BY ADV I.DINESH MENON ## **RESPONDENT/S:** 1 THE STATE TRANSPORT APPELLATE TRIBUNAL ERMAKULAM - 682011 2 THE REGIONAL TRANSPORT AUTHORITY, MALAPPURAM, REGIONAL TRANSPORT OFFICE, CIVIL STATION P.O., MALAPPURAM-676505. 3 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, MALAPPURAM, REGIONAL TRANSPORT OFFICE, CIVIL STATION P.O., MALAPPURAM-676505. 4 SHIHAB, S/O MOOSA, KALANGEDATHIL HOUSE, WEST BAZAR P.O, THENNALA, MALAPPURAM676 504. BY ADV K.V.GOPINATHAN NAIR ## **OTHER PRESENT:** GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.07.2022, ALONG WITH WP(C).21369/2022, THE COURT ON 2.8.2022, DELIVERED THE FOLLOWING: **WP(C) NO. 20705 OF 2022 and conctd. Case 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944** ## **WP(C) NO. 21369 OF 2022** ## **PETITIONER/S:** RAVICHANDRAN.P, AGED 59 YEARS S/O. PALANISWAMI, 7-B, CORONET APARTMENTS, KANNAMKULANGARA, KOORKANCHERY P.O, THRISSUR. BY ADV M.JITHESH MENON ## **RESPONDENT/S:** 1 THE REGIONAL TRANSPORT AUTHORITY,MALAPPURAM REGIONAL TRANSPORT OFFICE, CIVIL STATION, MALAPPURAM , PIN 676 505, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, MALAPPURAM , REGIONAL TRANSPORT OFFICE, CIVIL STATION, MALAPPURAM, PIN 676 505. 3 SHIHAB, S/O. MOOSA, KALANGEDTHIL HOUSE, WEST BAZAR P.O, THENNALA, MALAPPURAM. 4 THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM, KOCHI 682 011. BY ADV K.V.GOPINATHAN NAIR, GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.7.2022, ALONG WITH WP(C).20705/2022, THE COURT ON 2.8.2022 DELIVERED THE FOLLOWING: **WP(C) NO. 20705 OF 2022 and conctd. Case 3** ## **JUDGMENT** Petitioners, four (4) in number, have filed the present writ petition against the judgment dated 30.10.2020 of the State Transport Appellate Tribunal in MVAA No.68/2020 preferred by the respondent No.4 against the proceedings/order of the Regional Transport Authority, Malappuram dated 7.1.2020, Ext.P5. 2. Petitioners are existing stage carriage operators operating on the routes Valanchery-Parappanangady, Chattiparamba-Kottakkal, Areacode-Kozhikode and ChemmadCherpulassery as per the permits Exts.P1, P2, P3 and P4 respectively. 4[th] respondent had been operating on the route Kozhikode – Pattambi for the last 45 years as ordinary service. A request was submitted for variation to the extent of the route from Chemmad to Parappanangady four (4) single trips and conversion of the category of service from ordinary to limited stop ordinary service. The aforementioned proposal came up before the RTA, Malappuram in the meeting held on 7.1.2020 which was objected to by the petitioners as well as the common public. On consideration of the pleas of the respective parties, respondent No.2 rejected the said application being violative of the notification/Government order **WP(C) NO. 20705 OF 2022 and conctd. Case 4** dated 23.3.2017. 4[th] respondent without impleading the petitioners preferred a statutory appeal before the State Transport Appellate Tribunal by enclosing the field officers report. 3. Learned counsel appearing on behalf of the petitioners submitted that as per the provisions of Section 80(3) of the Motor Vehicle Act and Rule 179 of the Kerala Motor Vehicles Rules, an application to vary the conditions of permit, other than a temporary permit, by the inclusion of a new route or a new area or by alerting the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit, shall be treated as an application for grant of a new permit and it would not be necessary to treat the application submitted by the holder of stage carriage permit who provides service on any route to increase the frequency of the service without increase in the number of vehicles with a proviso that in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometers and in case of extension, the distance covered by extension shall not exceed twenty-four kilometers from the termini. Any such variation or extension within such limits **WP(C) NO. 20705 OF 2022 and conctd. Case 5** shall be made only after the transport authority is satisfied. Whereas Rule 179 deals with every application for variation of conditions of permit made under sub-section 3 of Section 80 of the Act whereby the holder can make an application for variation of the permit other than the condition referred to in sub Section 3 of Section 80 and the Transport Authority is empowered to allow the application for the reasons to be recorded in writing with a proviso that if the variation would authorize transport facilities materially different from those authorized by the original permit. The Tribunal did not notice all these facts and directed the RTA to grant the variation as applied for. There was no discussion about the extension sought as per the impugned order. Petitioners had a right to object to the variation extension of the request submitted by the 4[th] respondent in view of the findings in para 22 of the larger Bench of this Court in _**2015(1) KLT 248 M.Ratheesh vs The Regional Transport Authority** ._ Rule 179 provides the hearing of the affected parties which has not been followed. The objections raised by the petitioners have not been considered by the Tribunal. The Tribunal itself recorded certain facts which were not considered by the RTA which is violative of Rule 20 of the State Transport Appellate Tribunal Rules. **WP(C) NO. 20705 OF 2022 and conctd. Case 6** 4. On the other hand, learned counsel appearing on behalf of the respondent contested the aforementioned plea by submitting that the petitioners cannot challenge Ext.P7 judgment since there is no illegality much less they are not aggrieved persons in any manner and there is no statutory violation. 4[th] respondent was already having a regular permit on the route Kozhikode to Pattambi having a distance of 84.1 km and that service was halting at Chemmad which is being operated as an ordinary service with all stops on the said route. An application under Section 83 of the Act was submitted for extending the route in the morning and evening between Chemmad and Parappanangady. While seeking the variation of the permit, respondent also requested to operate the service on varied routes as 'Limited Stop Ordinary Service' instead of 'Ordinary Service' which was in accordance with the rule 206 of Kerala Motor Vehicles Rules. Limited Stop Ordinary Service is intended to avoid tediousness and hardship of the passengers of long distance route in which there will be a minimum one stop and every fair stage is defined in Rule 2(o)(b) of the Kerala Motor Vehicles Rules. 5. The Regional Transport Authority further conducted an enquiry through field officers which revealed that it was highly **WP(C) NO. 20705 OF 2022 and conctd. Case 7** necessary and essential to grant 'Varied Permit' by varying operation of service as Limited Stop Ordinary Service vide report dated 26.4.2022, Ext.R4(b). 6. I have heard the learned counsel for the parties, appraised the paper book and of the view that the order of the Tribunal dated 30.10.2020, Ext.P7 reveals that while setting aside the order of the Road Transport Authority found that there was no discussion about the extension sought for in the impugned order. The application was not for extension but for variation from Ordinary Service to Limited Stop Service. The notification of the Government dated 23.3.2017 promulgated by the Government of Kerala was to the fact that the passenger road transport service as per the particulars in the Schedule shall be run and operated exclusively by the State Transport Undertaking. The order of the RTA dated 7.1.2020, Ext.P5 rejecting the application of the 4[th] respondent for variation was on the ground that the variation application was for converting the nature of service from ordinary service to Limited Stop Ordinary Service which would defeat the traveling facilities of short distance passengers and the notification dated 23.3.2017 issued by the Government, provided that the Ordinary Service will not be available for traveling public belonging **WP(C) NO. 20705 OF 2022 and conctd. Case 8** to the area and clause 19 of the notification provided that the right to operate any new service and to increase the trips on the notified routes or its portions will be reserved exclusively for State Transport Undertaking. No doubt the clause 19 was noticed by the RTA but the judgment of this Court said that there cannot be a restriction on notified routes. The application of the petitioner reveals that the route was a notified one and since the petitioners were also operating on the same route had submitted an objection before the RTA but for the reasons best known respondent No.4 when filed the appeal did not implead the petitioners. Even otherwise the appellate Tribunal ought to have noticed the fact that the order allowing the appeal would have impacted the existing operators like the petitioners as it was a notified route. Even in the judgment of this Court in W.P.(C) No.30161 of 2017 dated 15.3.2018 held that the application for variation on individual basis can be considered but no application for variation on the notified routes can be accepted. The operative parts reads as under: _15. The impugned orders are therefore set aside. There will be a direction to the concerned Regional Transport Authorities to consider the request of the petitioners for variation or extension on an individual basis and in case there is no variation or extension is sought for on the notified routes, the same shall be taken up and considered, in accordance with the provisionsofSection80(3) of the Motors Vehicles Act, 1988. The respondent, State Transport Undertaking shall also be heard before orders are_ **WP(C) NO. 20705 OF 2022 and conctd. Case 9** _passed._ The appellate Tribunal has also not noticed the impact of the judgment and the notification viz-a-viz the variation of the permit qua notified routes is still in vogue and the order is against the aforementioned notification. Resultantly, the order suffers from arbitrariness and opaqueness much less repungancy; the same is hereby set aside. The matter is remitted to the Tribunal to decide afresh, the appeal preferred by the petitioners, after affording an opportunity of hearing to the petitioners, in both the writ petitions in accordance with law and the observations made herein above. The petitioners are also at liberty to supply additional documents in support of the respective submissions. Let the order be passed within a period of three months from the date of receipt of a certified copy of this judgment. **Sd/-** sab **AMIT RAWAL** **JUDGE** **WP(C) NO. 20705 OF 2022 and conctd. Case 10** ## **APPENDIX OF WP(C) 21369/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGULAR PERMIT OF THE PETITIONER OPERATING ON THE ROUTE KOZHIKODE- THRISSUR DATED 10.06.2022. Exhibit P2 TRUE COPY OF THE TIMINGS WITH WHICH THE PETITIONER IS OPERATING (ISSUED TO HIS PREDECESSOR IN INTEREST) DATED 12.11.2009. Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 7.1.2020. Exhibit P4 TRUE COPY OF THE APPEAL MEMORANDUM IN MVAA NO. 68/2020 DATED 12.03.2020 (WITHOUT EXHIBITS) Exhibit P5 TRUE COPY OF THE JUDGMENT RENDERED BY THE 4TH RESPONDENT IN MVAA NO. 68/2020 DATED 30.10.2020. Exhibit P6 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 20.06.2022 (WITH TRANSLATION). Exhibit P7 TRUE EXTRACT OF THE DECISION RENDERED BY THE 1ST RESPONDENT ON 15.01.2022 RELATING TO ITEM 78. **WP(C) NO. 20705 OF 2022 and conctd. Case 11** ## **APPENDIX OF WP(C) 20705/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE PERMIT ISSUED TO FIRST| ||PETITIONER ON THE ROUTE VALANCHERY| ||PARAPPANANGADI.| |Exhibit P2|TRUE COPY OF THE PERMIT ISSUED TO SECOND| ||PETITIONER ON THE ROUTE CHATTIPARAMBA-| ||KOTTAKKA| |Exhibit P3|TRUE COPY OF THE PERMIT ISSUED TO THIRD| ||PETITIONER ON THE ROUTE AREACODE-| ||KADAMPUZHA| |Exhibit P4|TRUE COPY OF THE PERMIT ISSUED TO FOURTH| ||PETITIONER ON THE ROUTE CHEMMAD-| ||CHERPULASSERY.| |Exhibit P5|TRUE COPY OF THE PROCEEDINGS DATED| ||7.01.2020. ISSUED BY THE 2ND RESPONDENT| |Exhibit P6|TRUE COPY OF THE MEMORANDUM IN APPEAL MVAA| ||NO.68/2020 DATED 12-03-2020.| |Exhibit P7|TRUE COPY OF THE JUDGMENT IN MVAA NO.68 /| ||2020 DATED 30.10.2020| |Exhibit P8|TRUE COPY OF THE DECISION REPORTED IN THE| ||DECISION REPORTED IN 2003[2] KLT 216.| |Exhibit P9|TRUE EXTRACT OF THE DECISION OF THE RTA,| ||MALAPPURAM DATED 15.01.2022.| |RESPONDENT EXHIBITS|| |Exhibit R4(A)|TRUE COPY OF THE JUDGMENT IN W.P(C)| ||15356/2022 DATED 19/05/2022| |Exhibit R4(B)|TRUE COPY OF THE REPORT OF THE FIELD| ||OFFICER ON 26/04/2022|