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1992 DIGILAW 435 (KER)

Krishnankutty v. John

1992-11-10

PARIPOORNAN, USHA

body1992
Judgment :- Paripoornan, J. The second respondent in O.P.No.12735 of 1992 is the appellant in this appeal. The petitioner and the first respondent in the O.P. are the respondents herein. The Original Petition was filed for the issue of a writ of mandamus to the first respondent Secretary, Regional Transport Authority, Ernakulam to dispose of Ext.P1 timings representation dated 7-7-1992 after hearing the petitioner, the second respondent and all other affected parties. This is in brief the prayer, though the actual prayer in the O.P. is cumbersome and ambiguous. 2. A learned single judge of this Court disposed of the O.P. even at the admission stage, after hearing the petitioner in the O.P. and the Government Pleader. The learned single judge, in a brief judgment, directed the first respondent to dispose of Ext.P1 representation filed by the petitioner after hearing him, second respondent and all other affected parties with utmost expedition. The second respondent's the O.P. has come up in writ appeal. 3. We heard counsel for the appellant - Mr. P Gopalakrishna Menon as also counsel for the respondents. 4. Appellant's counsel argued that Ext.P1 representation is regarding the timings of the bus KL-7/A.5751 from Edakochi to Kakkanad. The said bus is operated by the appellant in the route Thevakkal - Kakkanad. One of the services is to start from Edakochi at 1.51 P.M. The main objection of the petitioner in the O.P. is relating to the departure time of the appellant's service, fixed to start from Edakochi at 1.51 P.M. The bus belonging to the petitioner in the O.P. in the route is to start from Edakochi at 1.55P.M. The petitioner wanted that the departure time for his bus should be changed as 1.51 P.M. and to fix the departure time of the appellant's bus KL-7/A.5751 at 1.55 P.M. Counsel for the appellant argued that the revision of the timings regarding KL-7/A.5751 which operated in the Thevakkal - Edakochi route was fixed by the order of the Secretary, R.T.A., Ernakulam dated 14-1-1992 (marked as annexure- a in the writ appeal). The said statutory authority, after due publication of the notice in the notice board, fixed the departure time of the appellant's bus at 1.51 P.M. When the said order was passed, no objection was raised by any of the operators. The petitioner in the O.P. did not object to the timings. The said statutory authority, after due publication of the notice in the notice board, fixed the departure time of the appellant's bus at 1.51 P.M. When the said order was passed, no objection was raised by any of the operators. The petitioner in the O.P. did not object to the timings. If he was aggrieved by the said order (annexure- e) he should have filed a revision under S.90 of the Motor Vehicles Act before the State Transport appellate Tribunal. After having acquiesced in the order of the Secretary, R.T. A., Ernakulam fixing the departure time of the appellant's bus at 1.51 P.M. from Edakochi, the present attempt of the petitioner (1st respondent herein) by filing Ext.P1 is to annul or render nugatory the earlier order passed dated 14-1-1992, which has become final. What is more, the learned single judge directed consideration of Ext.P1 representation filed by the petitioner in the O.P. for changing the departure time of the petitioner's bus as 1.51 P.M. from Edakochi and directed the second respondent herein to consider the matter even without notice to the appellant, who was the second respondent in the O.P. The order passed by the learned single judge is illegal and void. The effect of the order passed by the learned single judge is to direct the Secretary, R.T.A. to consider the plea of the petitioner, that the departure time of his bus from Edakochi should be changed as 1.51 P.M. and allot the departure time for the appellant's bus as 1.55 P.M. The matter is concluded and no such application as Ext.P 1 will lie at the instance of the petitioner in the O.P., in view of the earlier order passed by the Secretary, R.T.A, Ernakulam, especially when there is no change in the situation or circumstances necessitating a revision of the earlier order. On these premises, counsel for the appellant prayed for setting aside the order passed by the learned single judge. 5. Counsel for the first respondent (petitioner in the O.P.) forcibly argued that the learned single judge has directed consideration of Ext.P1 representation and when the matter is considered by the second respondent all the objections of the appellant could be put, forward and the matter adjudicated then. No prejudice has been caused to the appellant by the direction given to the second respondent to consider and dispose of Ext.P1 representation filed by the petitioner. No prejudice has been caused to the appellant by the direction given to the second respondent to consider and dispose of Ext.P1 representation filed by the petitioner. It was argued that R.212 of the Kerala Motor Vehicles Rules, 1989 enables the Secretary, Regional Transport Authority to prescribe a schedule of timings for stage carriages other than those belonging to State Transport Undertakings on specified routes from time to time and so the Secretary, R.T.A is competent to pass a fresh order notwithstanding his earlier order fixing the timings, dated 14-1-1992 (Annexure-B). R.212(1) (a) and (b) of the Kerala Motor Vehicles Rules, 1989 is to the following effcct: "212. Schedule of timings:-(1) The State of Regional Transport Authority may from time to time - (a) by a general order prescribe a schedule of timings for stage carriages other than those belonging to State Transport Undertakings running on specified routes, or (b) by a special order prescribe a schedule of timings for each stage carriage other than that belonging to State Transport Undertaking." 6. Admittedly, in the proceedings for revision of timings in the route Thevakkal - Edakochi, for the appellant's bus KL-7/A, 5751 the departure time from Edakochi was fixed at 1.51 P.M. This was so done after due publication of the notice calling for objections. None of the operators objected. The petitioner in the O.P. was an operator even then. For his bus, the departure time from Edakochi was fixed at 1.55 P.M. He did not object to the order passed by the Secretary, R.T.A dated 14-1-1992. He could have assailed the order by filing a revision under S.90 of the M. V.- Act. He did not do so. He acquiesced in the said order. Long thereafter, by Ext.P1 representation, he wanted that the departure time of his bus, which was earlier fixed at 1.55 P.M., should be changed as 1.51 P.M. and the departure time of the appellant's bus should be fixed at 1.55 P.M. That is the specific request contained in Ext.P1. Having acquiesced in the earlier order dated 14-1-1992, in normal circumstances; the petitioner in the O.P. was incompetent to file Ext.P1. By an indirect method, the effect of the earlier order dated 14-1-1992 cannot be nullified. 7. It was argued that the Secretary, R.T.A. can revise the timings from "time to time" as enjoined in R.212. Having acquiesced in the earlier order dated 14-1-1992, in normal circumstances; the petitioner in the O.P. was incompetent to file Ext.P1. By an indirect method, the effect of the earlier order dated 14-1-1992 cannot be nullified. 7. It was argued that the Secretary, R.T.A. can revise the timings from "time to time" as enjoined in R.212. It was contended that the timings once fixed can be changed or varied any number of times. We are unable to accept this plea. The words "from time to time" means, "as occasion may arise". see Stroud's Judicial Dictionary, 5th Edn. Page 1053. Black's Law Dictionary, 5th Edn., Page 601, gives the meaning "occasionally, at intervals, now and then". It is evident that to revise the timings an "occasion should arise" and it can be so only when there is a change or alteration in the situation or circumstances. Without anything more, the order fixing the timings of the stage carriages cannot be altered or changed at the ipse dixit of the statutory authority under R.212 of the Motor Vehicles Rules, 1989. If the interpretation placed by counsel for the first respondent is accepted, it will render R.212 of the rules infirm. It will clothe the "statutory authority with uncanalised and unguided power to change the timings once made, arbitrarily and without any reason. That will be "unfair" and will be violative of Art.14 of the Constitution of India. An interpretation of the statutory provision which will expose it to an attack based on Art.14 of the Constitution should be avoided. The scope and operation of the statutory power vested in the authority under R.212 will be construed as to render it legal and effective. So, we hold that R.212 of the Motor Vehicles Rules, the statutory authority can act only if any "ground" or "reason" exists for the revision of timings. That can exist only in altered or changed situation or circumstances or by emergence of new state of affairs which did not exist when the earlier order was passed. 8. So, we hold that R.212 of the Motor Vehicles Rules, the statutory authority can act only if any "ground" or "reason" exists for the revision of timings. That can exist only in altered or changed situation or circumstances or by emergence of new state of affairs which did not exist when the earlier order was passed. 8. So, we hold that the request of the petitioner in Ext.P1 to change the departure time of his bus from 1.55 p.m. to 1.51 P.M. and to fix the departure time of appellant's bus KL-7/A-5751 to 1.55 P.M. is incompetent and impermissible in the light of the earlier order dated 14-1-1992 (annexure- e) in the absence of any altered situation or changed circumstances. Accordingly, we hold that Ext.P1 representation itself will not lie. The Secretary, R.T.A. was incompetent to entertain or consider the said representation. 9. The attempt of the petitioner in the O.P. was to direct the Secretary, R.T.A. to consider his representation which will adversely affect the appellant herein in the departure time of his bus. The appellant was impleaded as second respondent in the O.P. Even so, without notice and hearing the second respondent in the O.P. the prayer of the petitioner was allowed and the Secretary, R.T.A. was directed to dispose of Ext.P1 representation. Such a direction affects the appellant adversely. A prejudicial order cannot be passed against the appellant without notice or hearing him. To that extent, the learned single judge was in error in directing the Secretary, R.T.A, to consider Ext.P 1 representation filed by the petitioner in the O.P. The direction so given violates the principles of natural justice. We hold so. 10. We set aside the judgment of the learned single judge and allow this writ appeal with costs, including advocate's fee of Rs.1000/-, two sets, for respondents 1 and 2 separately.