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1989 DIGILAW 204 (KER)

Narayanankutty v. R. T. A Palghat

1989-06-02

BHASKARAN NAMBIAR, MALIMATH

body1989
Judgment :- 1. These two original petitions are directed against the judgment of the State Transport Appellate Tribunal, Ext.P7, dated 14th May, 1986. The reference to exhibits in this judgment will be to those marked in O.P.No.4279/86. Two applicants applied for the grant of stage carriage permit on the route Palghat-Guruvayur. The R.T.A., Palghat by its decision dated 19 3-84 granted the permit in favour of Narayanankutty, who rejected the other application. That decision was challenged before the State Transport Appellate Tribunal. The Tribunal by its order dated 31-7-84, Ext.P2, set aside the grant in favour of Narayanankutty and remitted the case for fresh consideration of the applications by the R.T.A. After remand, the R.T.A, Palghat by its decision dated 31-1-1985 granted the permit in favour of the petitioner in O.P.No.4279 of 1986, the Managing Partner of Mayilvahanam Roadlines, Shoranur. That decision was once again challenged before the State Transport Appellate Tribunal. The Tribunal by its order dated 27-6-1985 (Ext.P4) remitted the case for fresh consideration. The R.T.A. after fresh consideration took a decision as per Ext.P-5 dated 3-12-1985 and granted the permit in favour of Narayanankutty. That decision was again challenged in appeal before the State Transport Appellate Tribunal. The Tribunal by its order dated 14-5-1986, Ext.P-7, granted the permit in favour of Smt. Rugmini Amma, the contesting respondent in both these writ petitions. It is the said decision that is challenged in these two writ petitions by Narayanankutty and the Managing Partner of Mayilvahanam Roadlines. 2. At the outset, a preliminary objection was raised by the Counsel for Rugmini Amma in both these writ petitions in regard to the maintainability of these writ petitions without all the contesting applicants being impleaded as parties. In the writ petition of Narayanankutty, he has not impleaded the Managing Partner of Mayilvahanam Roadlines and in the writ petition filed by Managing Partner of Mayilvahanam Roadlines, Naryanankutty has not been impleaded. But it is obvious that both these parties are before this court in the two cases. It is in this background that the learned counsel for the petitioners in these two cases took time and got the other applicant impleaded in these two writ petitions. Therefore the preliminary objection regarding maintainability for non joinder of necessary parties does not now survive. 3. It is in this background that the learned counsel for the petitioners in these two cases took time and got the other applicant impleaded in these two writ petitions. Therefore the preliminary objection regarding maintainability for non joinder of necessary parties does not now survive. 3. The principal contention of the petitioners in these two cases is that the R.T.A. as also the State Transport Appellate Tribunal considered the merits of the rival applicants with reference to the date 19-3-1984 when the question of selecting a proper person for the grant of a stage carriage permit for the route was taken up for consideration and a decision was taken by the R.T.A. The contention of the petitioners is that that cannot be regarded as the first date of consideration of all the applications with reference to which date alone the merits of the rival applicants have to be assessed as laid down by this court in Cannanore District Motor Transport Employees' Co-operative Society Ltd. v. Malabar Public Conveyance (1962 KLT. 446 (F.B.) and by the Division Bench of this court reported in Manikanda Kumar v. Ramakrishnan (1985 KLT. 1026). This Court has consistently followed the aforesaid decisions holding that the assessment of merit of the applicants must be with reference to the date of first consideration by the R.T. A even in cases where the said decision is set aside by the Appellate Tribunal and the case is remitted for fresh consideration. The crucial date therefore is the date of first consideration of the applications on merits. The contention of the counsel for the petitioners is that though the date of first consideration of the applications in this case was 19-3-1984 that in law cannot be regarded as the date of first consideration. It is contended that Mayilvahanam Roadlines, the petitioner in O.P.No:4279/86, was not duly served with the notice of the proceedings before the R.T. A. and he could not therefore participate in the proceedings before the R.T.A. on 19-3-1984. In such circumstances it cannot be said that there was consideration of all the applications on that date as required by law. This contention receives full support from the decision of this court rendered in W.A.No.445/ 87 on 27th May, 1987. In such circumstances it cannot be said that there was consideration of all the applications on that date as required by law. This contention receives full support from the decision of this court rendered in W.A.No.445/ 87 on 27th May, 1987. This is what has been laid down in the said case: "On facts it is therefore quite clear that on 1-3-1986 all the applications in respect of the route in question which were required to be considered on that date were not considered and that one of the applications by the 4th respondent was not considered for the reason that he was not even duly notified about the date of hearing. That being the position, we have no hesitation in taking the view that there was no final consideration of all the applications on 1-3-1986 applying the principle laid down in Narayanan's case (1980 K.L.T. 249)" "As the first order was made without consideration of the application of the 4th respondent and without notice to him, that order is non-est and void in law That being the position it is not possible to take the view that the merits of the rival applicants should be considered as on 1-3-1986". The position is identical in this case. On 19-3-1984 one of the applicants, namely, Managing Director of Mayilvahanam Roadlines was not duly served and therefore was not present at the time of consideration. It is precisely for this reason that the S.T.A.T. set aside that decision and remanded the case for fresh consideration. 4. As all the applications were not considered on 19-4-1984, that cannot be regarded as the first date on which all the applications were considered for the purpose of assessment of relative merits of the applicants. The proceedings of the R.T.A. dated 10-3-1984 indicate that Mayilvahanam Roadlines was regarded as absent. The records as also the appellate order Ext.P2 dated 31-7-1984 clearly show that the said applicant was served only later. Therefore there was mistake on the part of R.T.A. in assuming that Mayilvahanam Roadlines was actually served but has remained absent on 19-3-1984. If the R.T.A. had realised the correct position that all the applicants including Mayilvahanam Roadlines had not been duly served the only course open to the R.T.A. would have been to adjourn the case to another date to hear all the applicants after notifying them the date of hearing. If the R.T.A. had realised the correct position that all the applicants including Mayilvahanam Roadlines had not been duly served the only course open to the R.T.A. would have been to adjourn the case to another date to hear all the applicants after notifying them the date of hearing. As the R.T.A. took the decision on 19-3-1984 even before one of the applicants was served and without giving him an opportunity of hearing, it's decision is void and non-est. The first, date of consideration contemplated in the decision of the Full Bench in the case reported in Cannanore District Motor Transport Employees' Co-operative Society Ltd. v. Malabar Public Conveyance (1962 K.L.T. 446) is the date when all the applications are considered after giving an opportunity to all the applicants of being heard. It is, therefore, obvious that 19-3-1984 cannot be regarded as the first date on which all the applications were considered. We have, therefore, no hesitation in holding that the R.T.A. as well as the S.T.A.T. committed an error apparent on the face of the records when they proceeded to assess the relative merits of the applicants with reference to the date 19-3-1984. The date of first consideration of all the applications in this case is 31-1-1985, as it is on that date all the applicants were heard. The relative merits of all the applicants was, therefore, required to be assessed with reference to that date. As that has not been done the impugned order of the S.T.A.T. is liable to be quashed. 5. For the reasons stated above, both these writ petitions are allowed and the order of the S.T.A.T. Ext.P7 is set aside. We remit the case to the S.T.A.T. for fresh consideration of all the application after giving opportunity to all the parties to produce such further evidence as they choose to produce in support of their respective cases for the purpose of assessing relative merit of the applicants with reference to the date 31-1-1985. The S.T.A.T. shall not remit the case to the R.T.A. for fresh consideration. As the matter has been pending for a long time, the S.T.A.T. is directed to dispose of the matter expeditiously. The contesting respondent, Smt.Rugmini Amma, has been admittedly operating the service on the route during the pendency of these proceedings. The S.T.A.T. shall not remit the case to the R.T.A. for fresh consideration. As the matter has been pending for a long time, the S.T.A.T. is directed to dispose of the matter expeditiously. The contesting respondent, Smt.Rugmini Amma, has been admittedly operating the service on the route during the pendency of these proceedings. Bearing in mind the interest of the travelling public, we direct the Secretary, R.T.A. Palghat to grant temporary permit in favour of the said Rugmini Amma till the disposal of the appeal by the S.T.A.T. Let a copy of this judgment be forwarded to the S.T.A.T. forthwith.