Kerala High Court
Fazil N.P vs Kolakkadan Mooza Haji on 30 July, 2021
-1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
WA NO. 911 OF 2021
AGAINST THE JUDGMENT IN WP(C) 28299/2019 AND ORDER IN RP
620/2020 OF HIGH COURT OF KERALA, ERNAKULAM
APPELLANT/S:
FAZIL N.P.
AGED 35 YEARS
S/O.AHAMMED N.P.,28/1123,
NAITHUKULANGARA HOUSE,
CHERUVAYUR P.O.,KOZHIKODE DISTRICT,PIN-673 017.
BY ADV O.D.SIVADAS
RESPONDENT/S:
1 KOLAKKADAN MOOZA HAJI
KOLAKKADAN HOUSE,CHERUVADI P.O.,
KOZHIKODE DISTRICT,PIN-673 661.
2 THE REGIONAL TRANSPORT AUTHORITY,
CIVIL STATION,P.O.UPHILL,MALAPPURAM,
REPRESENTED BY ITS SECRETARY,
PIN-676 505.
3 THE SECRETARY,
REGIONAL TRANSPORT AUHTORITY,
CIVIL STATION, P.O.UPHILL,MALAPPURAM,PIN-676 505.
OTHER PRESENT:
SRI.G.PRABHAKARAN FOR R1 ,
SRI. TEK CHAND SR GP FOR R2 AND R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W. A. No. 911 of 2021 -2-
JUDGMENT
S. Manikumar, C.J.
Writ Appeal No. 911 of 2021 is directed against the judgment
dated 09.12.2019 in W. P. (C) No. 28299 of 2019 and order dated
20.01.2021 in R. P. No. 620 of 2020.
2. W. P. (C) No. 28299 of 2019 has been filed for the following
reliefs:-
"i) issue a writ of certiorari or such other writs order or
direction quashing that part of Exhibit P5 combined order of
STAT made in MVARP No.77/2019 and MVARP No.78/2019
dated 4.10.2019 canceling the variation and the consequential
timing granted to the petitioner's service operating on the route
Melattur-Kozhikode with KL. 13/AE 9294.
ii) to declare that even if the need for variation is not endorsed in
the proceedings granting variation etc., it shall suffice if it is
available in the RTA records, that has to be produced before the
State Transport Appellate Tribunal."
3. Writ court after considering the rival submissions, on
09.12.2019, passed the following order:-
"3. In fact, no objections were raised by the third
respondent before 21.01.2019. What was produced before this
Court in WP(C) No.2369/2019 is objection raised on 22.01.2019.
The writ petition was filed only on 24.01.2019. The learned
Government Pleader made available copy of the objection, that
was dated 29.01.2019. Therefore it is clear that the objection
alleged have been submitted on 22.01.2019 produced as Ext.P5
was not thereon record before application was considered. The
objection produced by the learned Government pleader bears the
date 29.01.2019. The objection that was produced before this
Court in WP(C) No. 2369/2019 was dated 22.01.2019. Such a
person cannot challenge the timing variation settled in a
conference stating that his objections were not considered.
Accordingly the impugned order is set aside and the writ
petition is allowed with cost of `3,000/-. The third respondent
shall pay cost to the petitioner within one month."
4. Alleging apparent error in the judgment, appellant has filed
review petition, R. P. No. 620 of 2020, seeking stay of further
proceedings, pursuant to the judgment dated 09.12.2019 in W. P. (C)
No. 28299 of 2019.
5. Learned Single Judge dismissed the review petition, holding
that there is no reason to review the judgment.
6. Being aggrieved, instant writ appeal is filed on the following
grounds:-
A. The reasoning of the learned Single Judge in the said judgment is
not legal and without considering the contentions of the appellant
as well as the 1st respondent. Since, there was an error in the face
of record of the judgment, appellant has filed review petition,
specifically mentioning the factual aspects. Though, these factual
aspects were brought to the notice of the learned Single Judge,
nothing was considered and the order was rendered. The appellant
is highly aggrieved by the judgment/order rendered by the learned
Single Judge. The same are liable to be set aside in the interest of
justice.
B. The appellant has challenged the grant of variation to the 1 st
respondent as well as the consequential proceeding issued by the
3rd respondent herein, allotting timing to the 1st respondent. Both
are two separate proceedings, one issued by the RTA and one
issued by the Secretary, RTA and both proceedings are amenable
to challenge under Section 90 of the M.V. Act. But, the learned
Single Judge has dealt with only one proceeding, that is timing
only and allowed the writ petition. The finding rendered by the
learned Single Judge is not legal and also without properly
appreciating the contentions raised by the appellant. Hence, the
judgment and order rendered by the learned Single Judge is not
legal and the same is liable to be interfered.
C. Being an existing operator, the appellant is having every right to
challenge the proceeding of the RTA grating variation to the 1 st
respondent. STAT after considering the contentions of the
petitioner and the 3rd respondent, condoned the delay on payment
of costs and pursuant to the above, the matter was considered on
merits. Since, the decision of the RTA was not a speaking order
and further, the was no consideration of the objection raised, the
tribunal set aside the order and directed to consider the matter
afresh. Such reconsideration would not any affect the 1 st
respondent. This aspect was not considered by the learned Single
Judge also.
D. In fact, the appellant had raised substantial points, in the revision
petition. The variation of permit would come under Section 80 (3)
of the MV Act read with Rule 145(6) of the KMV Rules, which
stipulates as follows.
(i) New circumstances have arisen since the route decided, such as
construction of bridge or road.
(ii) Transport requirement of the area to be served were
overlooked or have changed.
The 1st respondent has not stated any ground in Rule 145(6) of the
KMV Rules for curtailing the sector from Areecode to Pannippara.
Whereas, the report of the field officer which stipulates that the
curtailment would affect the traveling public. So, without
considering the report of the filed officer, the RTA has granted
variation of permit to the 1st respondent, which was impugned in
MVARP No. 78 of 2019. Since, the order of the RTA is not legal
and speaking, the same was set aside by the learned STAT. But, the
learned Single Judge without going into the legality of the
contentions of the appellant, decided the matter on factual aspects,
which are not raised by the 1st respondent either before the
Tribunal or in the writ petition. When the writ jurisdiction is
invoked challenging the order of the tribunal, the same is a
supervisory jurisdiction and in such circumstances, the learned
Singe Judge ought to have considered the legal aspects, as well as
the violation to the provisions pleaded and projected by the
petitioner. Actually, the order rendered by the STAT is a remand
order, for which, the extra ordinary jurisdiction under Article 226
cannot be invoked by the 1st respondent, as there is no legal aspect
to be decided. But, the learned Single Judge has decided the matter
by considering one factual aspect, which was not pleaded by the
parties. Since, there was error in the judgment, the appellant filed
review petition and the learned Single Judge dismissed the review
petition also, without appreciating the contentions in the proper
perspective. Hence, according to the appellant, the judgment as
well as the order rendered by the learned Single Judge in the
review petition are not legal and proper and the same are liable to
be interfered.
There are other grounds also on the merits of timing.
7. Heard the learned counsel for the parties and perused the
material on record.
8. Material on record discloses that the appellant has filed W. P.
(C) No. 2369 of 2019 seeking for a writ of mandamus, commanding
the Secretary, Regional Transport Authority, Malappuram, 1st
respondent therein, to consider Ext. P5 objection filed by the
appellant, against the clash of timings, with the proposed set of
timings of Kolakkadan Mooza Haji, 2nd respondent therein.
9. On 9.12.2019, writ court disposed of writ petition directing
the Secretary, Regional Transport Authority, Malappuram, to consider
Ext.P5 objection filed by the petitioner.
10. Being aggrieved, appellant/writ petitioner in W.P.(C).2369
of 2019 has filed R.P. No.620 of 2020. Writ court, upon considering
the grounds raised, vide order dated 20.1.2021, dismissed the Review
petition a hereunder:
"This review petition is filed by the third respondent in the writ
petition. This Court allowed the writ petition setting aside the
order in revision passed by the State Transport Appellate Tribunal,
Ernakulam. This was mainly noting that the review petitioner had
raised objection only after the date of convening of the meeting
for variation. The date of the meeting was 21.1.2019. The
objection was raised only on 22.1.2019. Though the review
petitioner produced annexures along with the review petition,
nothing is made out to show that such objection was made before
21.1.2019. I find no reason to review the judgment. Accordingly,
the review petition is dismissed"
11. From the material on record, it could be deduced that the
appellant had filed W. P. (C) No. 2369 of 2019, on 24.1.2019
contending that his objection was not considered, knowing fully well
that the timing conference was convened and decided on 21.01.2019.
The learned Government Pleader, during the course of hearing of W. P.
(C) No. 28299 of 2019, has submitted that the objection was dated
29.1.2019, much later than the timing already arrived at. Thus, W. P.
(C) No. 28299 of 2019 was dismissed imposing a cost of Rs.3,000/-.
12. Though the appellant has raised several grounds, assailing
the correctness of the judgment in W. P. (C) No. 28299 of 2019 dated
9.12.2019 and the order in Review Petition No.620 of 2020 dated
20.1.2021, posed with a question regarding the prayer in W. P. (C) No.
2369 of 2019, Mr. O.D. Sivadas, learned counsel for the appellant
fairly submitted that the prayer in writ petition is only to consider
Ext.P5 representation. Vide judgment dated 25.1.2019, in W.P(C).
No.2369 of 2019, the learned Judge has granted the prayer. In the
light of the categorical admission, nothing on merits is required to be
considered by the writ court.
13. Objection stated to have been submitted has been
considered by the Authority and that the request has been rejected.
The same has been subsequently challenged in W. P. (C) No. 28299 of
2019.
14. Non-disclosure of the orders passed in the timing
conference as on 21.1.2019, has been noticed by the writ court.
Submission of the objection done, after the conclusion of timing
conference has also been noticed by the writ court. Remedy under
Article 226 of the Constitution of India, is one of equity. When there is
failure to disclose the true facts, for proper and effective adjudication,
courts exercising equitable jurisdiction under Article 226 of the
Constitution of India, can impose costs, which the writ court, in the
case on hand, has done. We do not find any infirmity or illegality. In
the light of the above, we are not inclined to interfere with the
judgment of the learned Single Judge.
15. Though at this juncture, Mr. O. D. Sivadas, learned counsel
for the appellant, sought for permission to withdraw the writ appeal,
we are not inclined to do so.
Accordingly, instant writ appeal is dismissed.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
APPENDIX OF WA 911/2021
PETITIONER ANNEXURE
Annexure A1 TRUE COPY OF THE FILED OFFICERS REPORT OBTAINED
BY THE REVIEW PETITIONER UNDER THE RTI ACT
Annexure A2 TRUE COPY OF THE OBJECTION DATED 22.1.2019
SUBMITTED BY THE REVIEW PETITIONER BEFORE THE
SECRETARY, RTA
Annexure A3 TRUE COPY OF THE COVERING LETTER ENCLOSED ALONG
WITH THE JUDGMENT IN WPC NO 2369/2019
