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2019 DIGILAW 262 (KER)

Jose v. Regional Transport Authority

2019-03-15

ANIL K.NARENDRAN

body2019
JUDGMENT : The petitioners, who are stage carriage operators, have filed this Writ Petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P2 order dated 11.05.2018 of the State Transport Appellate Tribunal, Ernakulam in M.V.A.R.P. No.55/2018, a Revision Petition filed by the 3rd respondent herein, who is another stage carriage operator on the route Kulakkattukurissi to Palakkad with stage carriage bearing registration No.KL-09/R-1819, challenging Ext.P1 proceedings of the 2nd respondent, who is the Secretary of the 1st respondent Regional Transport Authority, to the extent of not granting the vacant timings and not reducing the waiting time of his stage carriage bearing registration No.KL-09/R-1819 for more than three hours in the peak time, on the route Muriyankannikadavu–Palakkad. By Ext.P2 order, the Tribunal directed consideration of objection dated 16.08.2017 (Ext.P4 in M.V.A.R.P.No.55/2018) with regard to the revision of the 3rd respondent’s own timings, within two months from the date of receipt of a copy of that order, after hearing all the parties concerned. The petitioners have also sought for a writ of mandamus commanding the 2nd respondent to consider Ext.P3 objection made by them against the request of the 3rd respondent for revision of timings, in respect of his service, after affording an opportunity of being heard; and to stay the operation and all further proceedings pursuant to Ext.P2 order. 2. On 04.07.2018, when this Writ Petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 and 2. Urgent notice by speed post was ordered to the 3rd respondent, returnable within three weeks. This Court granted an interim stay of the operation and all further proceedings pursuant to Ext.P2 order, for a period of one month. The said interim order, which was extended from time to time, is still in force. 3. A counter affidavit has been filed by the 3rd respondent, opposing the reliefs sought for in this Writ Petition. 4. On 08.03.2019, when this Writ Petition came up for consideration, the 3rd respondent appeared in person, as the counsel engaged by him was absent. This Court appointed Sri. K.T. Thomas, a lawyer of this Court, as Amicus Curiae. Pursuant to that order, the learned counsel for the petitioners served a copy of this Writ Petition to the learned Amicus Curiae. 5. This Court appointed Sri. K.T. Thomas, a lawyer of this Court, as Amicus Curiae. Pursuant to that order, the learned counsel for the petitioners served a copy of this Writ Petition to the learned Amicus Curiae. 5. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for respondents 1 and 2, the 3rd respondent, who appeared in person, and also Sri. K.T. Thomas, the learned Amicus Curiae. 6. The issue that arises for consideration in this Writ Petition is as to whether any interference is warranted on Ext.P2 order of the State Transport Appellate Tribunal in M.V.A.R.P. No.55/2018, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. 7. M.V.A.R.P. No.55/2018 is a Revision Petition filed by the 3rd respondent, under Section 90 of the Motor Vehicles Act, 1988, challenging Ext.P1 order of the 2nd respondent dated 24.04.2018, to the extent of not granting the vacant timings and not reducing the waiting time of his stage carriage bearing registration No.KL-09/R-1819 for more than three hours in peak time, on the route Muriyankannikadavu – Palakkad. The settlement of timings by the 2nd respondent Secretary, by Ext.P1 proceedings, was one made after convening a timing conference on 17.04.2018. In the said proceedings, the name of petitioners 1 and 2 and one V. Guruvayurappan another stage carriage operator have been mentioned. The learned counsel for the petitioners would contend that in a Revision Petition filed before the Tribunal under Section 90 of the Motor Vehicles Act, challenging Ext.P1 order, the 3rd respondent ought to have arrayed the affected persons in the party array. However, the 3rd respondent filed M.V.A.R.P. No.55/2018 before the Tribunal without the affected persons in the party array. Therefore, Ext.P2 order of the Tribunal issued without the affected persons in the party array cannot be sustained in the eye of law. 8. Sri. K.T. Thomas, the learned Amicus Curiae, would address arguments placing reliance on the relevant provisions of the Motor Vehicles Act, 1988 and also the Kerala Motor Vehicles Rules, 1989. 9. M.V.A.R.P. No.55/2018 filed by the 3rd respondent is one invoking the provisions under Section 90 of the Motor Vehicles Act, which deals with revision. Section 90 reads thus; “ 90. K.T. Thomas, the learned Amicus Curiae, would address arguments placing reliance on the relevant provisions of the Motor Vehicles Act, 1988 and also the Kerala Motor Vehicles Rules, 1989. 9. M.V.A.R.P. No.55/2018 filed by the 3rd respondent is one invoking the provisions under Section 90 of the Motor Vehicles Act, which deals with revision. Section 90 reads thus; “ 90. Revision.-- The State Transport Appellate Tribunal may, on an application made to it, call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority against which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final: Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from date of the order: Provided further that the State Transport Appellate Tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by good and sufficient cause from making the application in time. Provided also that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard”. (underline supplied) Therefore, as per the third proviso to Section 90 of the State Transport Appellate Tribunal shall not pass an order in a revision filed under Section 90 of the Act, prejudicial to any person, without giving him a reasonable opportunity of being heard. 10. Rule 212 of the Kerala Motor Vehicles Rules deals with schedule of timings. Rule 212 reads thus; “ 212. Schedule of timings:- - (1) The State or 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. (2) The changes ordered by the Transport Authority in the timings of a service shall not be considered as variation of permit under sub-section (3) of Section 80 of the Act. (3) The State Transport Authority or the Regional Transport Authority may, by resolution, delegate to its Secretary the powers conferred on it under this rule subject to any conditions that it may prescribe: Provided that the State or Regional Transport Authority shall not however vary the timings of a service without giving to the interested permit holders an opportunity to represent their case.” (underline supplied) Therefore, as per the proviso to sub-rule (3) of Rule 212, the State or Regional Transport Authority shall not vary the timings of a service without giving to the interested permit holders, an opportunity to represent their case. 11. Rule 6 of the Kerala State Transport Appellate Tribunal Rules, 1988 deals with presentation of appeals and revision petition. Rule 6 reads thus; “ 6. Presentation of Appeals and Revision Petition.– (1) An appeal or revision petition shall be presented in the office of the Tribunal. (a) by the Party in person or by sending the memorandum of appeal or revision petition by registered post acknowledgment due to the Tribunal so as to reach the office of the Tribunal within the prescribed period, or (b) by the pleader or his registered clerk in person in the office of the Tribunal. (2) When an appeal or revision petition is presented under sub-rule (1)(b) of this rule, it shall be accompanied by a duty executed Vakalath name of the party bearing court fee stamp of the value of Rs.2. (3) In every appeal or revision petition, besides the aggrieved party or parties, the concerned Transport Authority or Authorities and their Secretaries, as the case may be, shall be made respondent or respondents. (4) An appeal or revision petition, as the case may be, shall contain the name and full address of the parties concerned and be in the form of a memorandum setting forth precisely the general grounds of objection to the decision or order which is the subject matter of appeal or revision petition and specify the relief sought for and shall be accompanied by the original or a certified copy of the decision or order. Grounds not urged before, the Regional Transport Authority or the State Transport Authority shall not ordinarily be permitted to be urged before the Tribunal except where the Tribunal finds it necessary to consider such grounds for a just and proper decision of the case. An appeal or revision petition shall be signed by the appellant or revision petitioner and no such appeal or revision petition shall be signed by more than one person. Every appeal or Revision Petition shall also be accompanied by as many copies of the memorandum as there are respondents in addition to the original. A copy of the appeal or revision petition along with a copy of the decision or order impugned shall also be served on the Standing Counsel before filing the appeal or revision petition. (5) The fee for every appeal under sub-section (2) of Section 16, Sections 21F and 64 of the Act shall be as prescribed in Rules 35, 82 and 171 respectively of Kerala Motor Vehicles Rules, 1961. The fee for every revision petitioner under Section 64A of the Act shall be the fee prescribed under Rule 172 of Kerala Motor Vehicles Rules, 1961”. Therefore, as per sub-rule (3) of Rule 6, in every appeal or Revision Petition filed before the Tribunal, besides the aggrieved party or parties, the concerned Transport Authority or Authorities and their Secretaries, as the case may be, shall be made respondent or respondents. 12. Going by the provisions under the Motor Vehicles Act and the Kerala Motor Vehicles Rules, referred to hereinbefore, in a Revision Petition, it is incumbent upon the petitioners to implead the aggrieved party or parties who are likely to be affected by any interference made by the Tribunal based on that appeal or revision. As per the proviso to Section 90 of the Motor Vehicles Act, the Tribunal shall not pass an order prejudicial to any person, without giving him an opportunity of being heard. When no variation of timings of a service under Rule 212 of the Kerala Motor Vehicles Rules can be made, as per the proviso to sub-rule (3), without giving the interested permit holders an opportunity to represent their case, the permit holders who will be adversely affected if the interference sought for in a revision filed before the Tribunal under Section 90 of the Act is granted should be arrayed as respondents in that Revision Petition. 13. 13. The learned Amicus Curiae would place reliance on the judgment of a Division Bench of this Court in Abdul Gafoor Khan P.T. v. A.Abdul Karim & Anr. (judgment dated 18.12.2009 in W.A.No.2877 of 2009), wherein it was held that before making an observation on merits the Tribunal should have given an opportunity of being heard to the affected operators. The Tribunal should have insisted that all those, who are operating on the route and who participated in the timing conference based on which the order impugned was issued should have been impleaded. Otherwise the Revision Petition should have been dismissed. Paragraph 4 of the said judgment reads 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. The next ground urged is the issuance of a mandamus to implement Ext.P4. The writ petitioner was not a party to Ext.R2(a) judgment. Therefore, that judgment cannot affect the rights of the petitioner and preclude him from challenging Ext.P4. When Ext.P4 is challenged, pointing out the irregularities, the learned Single Judge is justified in interfering with Ext.P4, notwithstanding the direction in Ext.R2(a) judgment. The Secretary, R.T.A. has got a duty to implement Ext.P4 as long as the same is in force. So, the mandamus for the same was issued in Ext.R2(a). But, if this Court quashed Ext.P4 for not hearing necessary parties, the same cannot be said to be unjustified. In that event, the direction to implement Ext.P4 contained in Ext.R2(a) will become infructuous. The contention that the learned Single Judge cannot touch Ext.P4, in view of Ext.R2(a), cannot be accepted. So, the mandamus for the same was issued in Ext.R2(a). But, if this Court quashed Ext.P4 for not hearing necessary parties, the same cannot be said to be unjustified. In that event, the direction to implement Ext.P4 contained in Ext.R2(a) will become infructuous. The contention that the learned Single Judge cannot touch Ext.P4, in view of Ext.R2(a), cannot be accepted. Another contention raised by the appellant that Ext.P4 order has already been implemented and therefore, the same cannot be challenged, is also plainly untenable. Even if a decree is executed, an appeal against the decree can be heard and allowed. The provisions for restitution will take care of the resultant situation. Further, all proceedings taken in implementation of the decree being dependent proceedings will also collapse, once the decree is reversed. The same principle will apply here also. Finally, it is pointed out by the learned counsel for the appellant that the writ petitioner can challenge Ext.P5 by filing revision petition before the Tribunal. But, we notice that as long as the observation of the Tribunal in Ext.P4 regarding the merits of the case of the appellant remains, the said challenge will not be efficacious”. (underline supplied) 14. In Thomas Lucka v. Secretary, Regional Transport Authority ( 1991 (2) KLT 229 ) a Division Bench of this Court held that Section 90 of the Motor Vehicles Act enables the Tribunal, on an application made to it, to call for the records of any case in which an order has been made by statutory authority against which no appeal lies and if it appears to be Tribunal that the order made by the statutory authority is improper or illegal, it may not pass such order in relation to the case as it deems fit and every such order shall be final. Every person who is adversely affected by the order on timings is entitled to approach the Tribunal. He may be an applicant for a permit who is granted a permit with timings which he is challenging, or he may be an existing operator who is able to show that the operation of his stage carriage will be adversely affected by the timings so granted or whose timings are altered. 15. The learned Amicus Curiae would place reliance on the judgment of this Court in K.R. Surendran & Ors. v. Regional Transport Authority & Ors. 15. The learned Amicus Curiae would place reliance on the judgment of this Court in K.R. Surendran & Ors. v. Regional Transport Authority & Ors. (judgment dated 10.11.2017 in W.P.(C) No.19169 of 2017). After referring to the law laid down by the Division Bench of this Court in Thomas Lucka’s case and Abdul Gafoor Khan’s case referred to supra, it was held that, in a Revision Petition filed under Section 90 of the Motor Vehicles Act, if the remand is made without making any findings on the order passed by the statutory authority, it cannot be said that the other enroute operators are aggrieved by such an order. The judgment of the Division Bench in Abdul Gafoor Khan’s case (supra) was rendered under a circumstance, where a finding was rendered in favour of the appellant therein. Paragraphs 13 to 16 of the said judgment reads thus; “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 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. 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 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. x x x x x x x x x x x x x x x x” 16. 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. x x x x x x x x x x x x x x x x” 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. Therefore, in my considered opinion, the said judgment has no bearing to the facts and circumstances involved in this case”. (underline supplied) 16. A reading of the aforesaid decisions would make it explicitly clear that in a challenge made against the order passed by the Tribunal in a revision filed under Section 90 of the Motor Vehicles Act, in so far as revision of timings is concerned, the issues that has to be considered is as to whether, by directing consideration of some objections by remanding the matter to the original authority, the Tribunal has entered into any findings advantageous to the petitioner in that Revision Petition or any findings against any of the enroute operators. If the order contained any such findings, certainly a person against whom such findings are made in that order, who is not a party to that proceedings before the Tribunal can very well challenge that order in a Writ Petition on that sole ground, he being a person aggrieved by that findings. This is for the reason that, when the order passed by the Tribunal contains certain observations or findings, the Secretary of the Regional Transport Authority, is not expected to sit over that findings and he is bound to follow the findings in that order. Only in such cases, an enroute operator can be said to be aggrieved by an order passed by the Tribunal in a revision filed under Section 90 of the Act. 17. Only in such cases, an enroute operator can be said to be aggrieved by an order passed by the Tribunal in a revision filed under Section 90 of the Act. 17. In the instant case, a reading of Ext.P2 order of the Tribunal would make it explicitly clear that by directing the 2nd respondent to consider the request made by the petitioner in Ext.P2, the Tribunal has not made any observations, touching the merits of the matter, which was directed to be considered by the 2nd respondent. In that view of the matter, I find absolutely no grounds to interfere with Ext.P2 order of the Tribunal, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. In such circumstances, this Writ Petition fails and the same is accordingly dismissed. It is for the 2nd respondent to consider the objection dated 16.08.2017 of the 3rd respondent (referred to as Ext.P4 in Ext.P2 order of the Tribunal) along with Ext.P3 objection made by the petitioner against the request for revision of timings made by the 3rd respondent and take appropriate decision, with notice to the petitioners, to the 3rd respondent and other enroute operators, within the time limit of two months prescribed in Ext.P2 order; however from the date of receipt of a certified copy of this judgment.