Kerala High Court

K.V.Sreekumar vs Prakasan on 16 February, 2022

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                   &

             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943

                        WA NO. 229 OF 2022

 AGAINST THE JUDGMENT IN WP(C) 22860/2021 OF HIGH COURT OF KERALA

APPELLANT/2ND RESPONDENT:

          K.V.SREEKUMAR
          AGED 38 YEARS, S/O. VENKITESWARAN,
          KATTUKARAN HOUSE, KUZHUPPILLY,
          AYYAMPILLY P.O., NORTH PARUR, PIN-682 501.

          BY ADV M.JITHESH MENON


RESPONDENTS/PETITIONER AND 1ST RESPONDENT:

    1     PRAKASAN
          S/O. RAMAN, HOUSE NO.14/462, MANNALI HOUSE,
          CHERAI P.O., NORTH PARUR, PIN-683 514.

    2     THE SECRETARY,
          REGIONAL TRANSPORT AUTHORITY, ERNAKULAM,
          OFFICE OF THE REGIONAL TRANSPORT OFFICER,
          CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-682 030.

          SRI. PRASAD CHANDRAN FOR R1
          SRI. V.TEKCHAND, SR GP FOR R2


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.229 of 2022
                                   2


                                JUDGMENT

Dated this the 16th day of February, 2022

S.Manikumar, C.J.

Before the writ court, the petitioner therein has sought

for the following reliefs:

"i. Issue a writ of mandamus or any other appropriate writ direction or order directing the 1 st respondent to consider Exhibit P2 objection submitted by the petitioner in respect of the set of timings issued to the 2nd respondent on the route Vypin - Munambam in respect of his stage carriage KL-28/5671 forthwith or within a time limit;

ii) Issue a writ of mandamus or any other appropriate writ direction or order directing the 1 st respondent to convene a timing conference by considering Exhibit P2 objection and make necessary changes as envisaged under rule 145(7) in respect of the timings issued to the 2nd respondent forthwith or within a time limit"

2. Facts leading to the filing of the writ petition are as

hereunder:

Petitioner is operating service on the route Munambam- W.A.No.229 of 2022

Vypin-High Court. The 2nd respondent is issued with a set of

timings ahead of the petitioner's service. It is pertinent to

note that the time gap of the petitioner's service is

considerably reduced and the 2nd respondent is not presently

adhering to the timings in respect of his service also. It is

submitted that the timing of the petitioner, who is a senior

permit holder, has been arbitrarily and considerably reduced

and thereby he is seriously aggrieved and affected. Petitioner

submitted Exhibit P2 and the Secretary, Regional Transport

Authority, 1st respondent, is duty bound to settle the timings

after taking into consideration the objections of the

petitioner.

3. After hearing the learned counsel for the petitioner,

vide judgment in W.P.(C)No.22860 of 2021 dated 29.10.2021, a

learned single Judge of this court directed the Secretary,

Regional Transport Authority, the 1st respondent therein, to

consider Exhibit P2 objections against the timings of

Mr.K.V.Sreekumar, the appellant herein. W.A.No.229 of 2022

4. Being aggrieved, instant writ appeal is filed on the

grounds inter alia that the said directions are contrary to the

law laid down by this court in Krishnankutty v. John reported

in 1992 (2) KLT 883 and M.C.Kumaran v. K.M.Jacob and

Another reported in 1995 KHC 214.

5. Contention has also been made that the Regional

Transport Authority, Ernakulam on 12.12.2019, had convened

timing conference which was attended by 60 operators on the

sector including KSRTC. Thereafter, permits were issued with

settled set of timings. Submission is also advanced that the

said timing was not challenged in accordance with law and

therefore, no objections can be received by the Secretary,

Regional Transport Authority, Ernakulam (respondent No.1).

6. It is the sum and substance of the appellant's

contention that the impugned judgment is contrary to the

statutory provisions and the settled position of law, thus

warranting interference.

7. When attention of the above said decisions were W.A.No.229 of 2022

brought to the notice of Mr.Prasad Chandran, learned counsel

for respondent No.1, he submitted that a revision under

Section 90 of the Motor Vehicles Act, 1988 would be

preferred, challenging the timing conference fixed on

12.12.2019 (Annexure A). Submission of the learned counsel

for the respondent No.1 is placed on record.

8. Heard learned counsel for the parties and perused the

material available on record.

9. Annexure A order in timing conference held on

12.12.2019, settling the timings, is reproduced:

"Proceedings of the Secretary, RTA, Ernakulam Present: K. Manoj Kumar

Sub:- MVs Dept. - S/C KL 28-5671 - operating on the route - Vypin-Munambam With extension from Kalamukku Jn To Collector's Square Through Goshree Bridges as ordinary MOFFUSIL Service - Variation of permit granted - Settlement of Timings - Proceedings - Issued - reg.

Ref:-1) Decision of RTA Ernakulam dated 18.09.2019 vide item No.86

2) Minutes of Timing conference dated 12.12.2019.

W.A.No.229 of 2022

Order No.N3/10204/2019/E dated 12.12.2019

The S/C KL 28-5671-covers a regular permit 7/2/1997 to operate on the route Vypin-Munambam With Extension From Kalamukku Jn To Collector's Square Through Goshree Bridges.

The permit holder applied for variation of permit so as to operate Second trip from Munambam I R Valavu to Kuzhipilly via Cherai Beach, Kuzhipilly Beach and in the second trip curtail the route portion from Kalamukku Junction to Vyppin and the same trip extended from Kalamukku to High Court.

Vide reference 1st cited, the application is considered by the RTA in its sitting dated 18.09.2019 vide item No. 86 and granted the variation, subject to settlement of timings. Accordingly a timing conference was convened on 12.12.2019 with due notice, 60 offenders on the sector including KSRTC were attended and a clash free and objection free timings was arrived at the conference.

Hence, I, the secretary, RTA, Ernakulam, here by approve and issue the settled set of timings to stage carriage KL 28-5671 for operating service on the varied route Munambam - Vypin - High Court as granted by RTA with immediate effect. (Time sheet attached separately).

Secretary, RTA, Ernakulam"

W.A.No.229 of 2022

10. In the decision in Krishnankutty v. John (supra), the

2nd respondent in O.P.No.12735 of 1992 was the appellant

therein. Petitioner and the first respondent in the original

petition were the respondents. The original petition was filed

for the issuance of a mandamus directing the first respondent

therein namely the Secretary, Regional Transport Authority,

Ernakulam to dispose of Exhibit P1 timings representation

dated 7.7.1992, after hearing the petitioner, the 2 nd

respondent and other affected parties.

11. A learned single Judge of this court disposed of the

original petition at the admission stage itself, directing the

representation to be considered. Being aggrieved, respondent

No.2 in the original petition preferred the appeal.

12. After considering Rule 212 of the Kerala Motor

Vehicles Rules, 1989, which deals with the schedule of timings

and in particular, the expression 'from time to time', a Hon'ble

Division Bench of this court set aside the direction issued by W.A.No.229 of 2022

the learned single Judge.

13. It is worthwhile to extract paragraph 7 to 9 of the

judgment in Krishnankutty v. John (supra):

"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 W.A.No.229 of 2022

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" exist 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-B) 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 W.A.No.229 of 2022

hearing him. To that extent, the learned single Judge was in error in directing the Secretary, R.T.A, to consider Ext.P1 representation filed by the petitioner in the O.P. The direction so given violates the principles of natural justice. We hold so."

14. In yet another decision in M.C.Kumaran v. K.M.Jacob

(supra), another Hon'ble Division Bench of this court had an

occasion to consider a similar matter and following the

judgment in Krishnankutty's case, held thus:

"6. The learned single Judge has lost sight of the law stated by Division Bench of this Court in the decision referred to earlier while disposing of the Original Petition. The party affected by the decision, namely the second respondent, was not afforded an opportunity of being heard in the matter either. Consequently, we are clear in our mind that the judgment rendered by the learned single Judge is void and it cannot be sustained. So, the only course that is now open to us is to set aside the judgment rendered by the learned single Judge. We do so."

15. Perusal of the judgments show that in both the cases

the Hon'ble Division Bench had imposed costs on the

respondents therein. Going through the material on record, W.A.No.229 of 2022

particularly the impugned order, we find that no notice has

been ordered to the appellant nor the learned single Judge

had occasion to consider the Division Bench judgments stated

supra.

16. In the light of the settled proposition of law, as

extracted in the foregoing paragraphs, the impugned

judgment warrants interference. Accordingly, the directions

issued in W.P.(C)No.22860 of 2021 dated 29.10.2021 is set

aside.

17. Section 90 of the Motor Vehicles Act, 1988 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 W.A.No.229 of 2022

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 the 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."

18. As per the version of Mr.Prasad Chandran, learned

counsel for the respondent No.1, a revision would be filed as

against the proceedings of the Secretary, Regional Transport

Authority, Ernakulam (respondent No.2) dated 12.12.2019

fixing the timings.

19. Statute provides a revision with an application for

delay. It is for the State Transport Appellate Tribunal to

entertain the revision if it is satisfied that the revision

petitioner was prevented by any sufficient cause from making W.A.No.229 of 2022

the same in time.

Thus, giving liberty to the 1 st respondent to prefer a

revision as per section 90, writ appeal is allowed.