Partly allowed

Shihab, v. P.K.Moosa

Kerala HC4 Nov 2022WA/1251/2022

Case brief

AI extract

What is this about?

Allowed the writ appeals against a single Judge's judgment that had quashed the Order of the State Transport Appellate Tribunal. Held that the Tribunal erred not to hear other permit holders and directed remittal of the issue to the Tribunal for fresh consideration with a hearing to all en-route operators, specifically regarding the conversion to Limited Stop Ordinary Service and route extension.

What did the court decide?

Remitted the matter to the State Transport Appellate Tribunal to reconsider the permit variation application after affording an opportunity of hearing to all en-route operators, including the applican

Shihab, Vs P.K.Moosa — Service and Employment | Kerala HC (2022)

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W.A. Nos. 1251 & 1260 of 2022

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: 1:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 4^TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944

WA NO. 1251 OF 2022

COURT OF KERALA

APPELLANT/4TH RESPONDENT IN W.P.©:

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SHIHAB,

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AGED 39 YEARS S/O. MOOSA, KALANGEDATHIL HOUSE, WEST BAZAR P.O., THENNALA, MALAPPURAM-676 508.

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BY ADV K.V.GOPINATHAN NAIR

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RESPONDENT/S:

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1 P.K.MOOSA, PARUTHIKUNNEL HOUSE, P.K.BROTHERS, EDARIKODE, MALAPPURAM - 676 501

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2 MUHAMMED ABDUL RAHIMAN C.H, CHAKKINGATHODI HOUSE, CHETTIPARAMBA P.O., KODUR, MALAPPURAM - 676 504.

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3 ABDUL KAREEM, S/O. MOOSAKUTTY, THOTTAKATTIL HOUSE, EDARIKODE P.O., MALAPPURAM - 676 501.

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4 SHAJAHAN.T, S/O. LATE MOIDEENKUTTY, THOOMPATHUPARAMBIL HOUSE, PARAPPUR P.O, MALAPPURAM - 676 503.

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5 THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM - 682 011.

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6 REGIONAL TRANSPORT AUTHORITY, REGIONAL TRANSPORT OFFICE, CIVIL STATION P.O., MALAPURAM676 505.

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7 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, REGIONAL TRANSPORT OFFICE, CIVIL STATION P.O., MALAPURAM-676 505.

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ADDL.R8 IMPLEADED.

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8 KERALA STATE ROAD TRANSPORT CORPORATION,

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W.A. Nos. 1251 & 1260 of 2022 : 2:

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TRANSPORT BHAVAN,EAST FORT, THIRUVANANTHAPURAM,KERALA,INDIA-695 014. ITS CHAIRMAN AND MANAGING DIRECTOR.

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[ADDL.R8 IMPLEADED AS PER ORDER DATED 23.9.2022 IN I.A.2/2022] BY ADVS. R1 BY SRI. I.DINESH MENON 8 BY SRI. DEEPU THANKAN R6 & R7 BY SRI. P. SANTHOSH KUMAR, SPL. GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04.11.2022, ALONG WITH WA.1260/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. Nos. 1251 & 1260 of 2022

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: 3:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 4^TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944

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WA NO. 1260 OF 2022

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AGAINST THE JUDGMENT DATED 02.08.2022 IN WP(C) 21369/2022 OF HIGH

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COURT OF KERALA

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APPELLANT/3RD RESPONDENT IN THE W.P.©:

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SHIHAB,

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AGED 39 YEARS S/O. MOOSA, KALANGEDATHIL HOUSE, WEST BAZAR P.O., THENNALA, MALAPPURAM - 676 508. BY ADV K.V.GOPINATHAN NAIR

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RESPONDENTS/PETITONER AND RESPONDENTS 1,2 AND 4 IN W.P.©:

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1 RAVICHANDRAN.P, AGED 59 YEARS

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S/O. PALANISWAMI, 7-B, CORONET APARTMENTS, KANNAMKULANGARA, KOORKANCHERY P.O., THRISSUR - 680 007.

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2 THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM - 682 011.

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3 REGIONAL TRANSPORT AUTHORITY, REGIONAL TRANSPORT OFFICE, CIVIL STATION P.O., MALAPURAM676 505.

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4 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, REGIONAL TRANSPORT OFFICE, CIVIL STATION P.O., MALAPURAM-676 505.

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5 ADDL. R5 IMPLEADED:

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KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM, KERALA, INDIA – 695 014, REP. BY THE CHAIRMAN AND MANAGING DIRECTOR.

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(ADDL.R5 IMPLEADED AS PER ORDER DATED 04.11.2022 IN I.A. NO. 1/2022]

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BY ADVS. R1 BY SRI. P.JITHESH MENON(B/O) SHRI.DEEPU THANKAN, SC, KSRTC

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W.A. Nos. 1251 & 1260 of 2022 : 4:

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R3 & R4 BY SRI. P. SANTHOSH KUMAR, SPL. GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04.11.2022, ALONG WITH WA.1251/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. Nos. 1251 & 1260 of 2022

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: 5:

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S. MANIKUMAR, CJ & SHAJI P. CHALY, J.

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W.A. Nos. 1251 & 1260 of 2022

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--------------------------------------------------------Dated this the 4^th day of November, 2022.

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JUDGMENT

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SHAJI P. CHALY, J.

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The above appeals are filed by one Shihab, who is the appellant in M.V.A.A. No. 68 of 2020 on the files of the State Transport Appellate Tribunal; who was respondent No. 4 and 3 respectively in W.P.(C) Nos. 20705 and 21369 of 2022, challenging the common judgment of the learned single Judge dated 02.08.2022, whereby the writ petitions were allowed and the order passed by the Tribunal was set aside and remitted the matter back to the Tribunal for consideration afresh, after affording an opportunity of hearing to the writ petitioners as well as the appellant within a period of three months from the date of receipt of a copy of the judgment. Parties and exhibits are referred to as in W.A.No. 1251 of 2022.

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Brief material facts for the disposal of the appeal are as follows:

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The appellant has a regular permit to operate the service of a long distance route of Kozhikode-Pattambi having a route length of

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W.A. Nos. 1251 & 1260 of 2022 : 6:

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84.1 kms. He submitted an application for variation of the permit under Section 80(3) of the Motor Vehicles Act, 1988 (‘Act, 1988’ for short), by extending the route from Chemmad to Parappanangadi having a distance of 6.4 kms, which according to the appellant, is not a notified route, and also for permission to operate the service as Limited Stop Ordinary Service.

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It is submitted that the application so submitted has been enquired through the Field Officer, and the enquiry report revealed that; (i) no portion on the route is curtailed, and the extension of existing route from Chemmad to Parappanangadi will be beneficial to the travelling public; (ii) the variation sought is beneficial for long distance passengers and there is no Limited Stop Ordinary Service at present through Pattambi-Kozhikode route and ParappanangadiPattambi route; (iii) necessary stops have been suggested and proposed in the application for avoiding any inconvenience to the short distance passengers and students; and (iv) there is no virgin portion or notified sector included and clause 19 of G.O.(P) No. 8/2017/Trans dated 23.03.2017 is not violated.

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However, the Regional Transport Authority, Malappuram, respondent No.6 in W.A.No. 1251 of 2022, considered the application and it was rejected by Exhibit P5 order dated 07.01.2020 stating that the conversion of the vehicle to a Limited

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W.A. Nos. 1251 & 1260 of 2022 : 7:

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Stop Ordinary Service will defeat the traveling facilities of shortdistance passengers and students; and as per clause 19 of the notified scheme, right to increase the trip on the notified route or portions will be reserved exclusively for the State Transport Undertaking.

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Being aggrieved, the appellant filed M.V.A.A. No. 68 of 2020 before the State Transport Appellate Tribunal under Section 89(1)(a) of the Act, 1988. The Tribunal allowed the appeal as per Exhibit P7 order dated 30.10.2020 holding as follows:

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“4. The variation sought for consists of extension of route from Chemmad to Parappanangadi and conversion of service from Ordinary Service to LImited Stop Ordinary Service. The variation sought for was rejected holding that the conversion of service from Ordinary Service to Limited Stop Ordinary Service would defeat the travelling facilities of short distance passengers, especially students. There is no discussion about the extension sought for in the impugned order. The route enquiry report has been called for and it has been produced as Ext.P2. The column No.15 of the report would show that it is absolutely in favour of the appellant. The route enquiry officer by stating reasons specifically stated that the conversion as well as extension is the interest of travelling public. In the report the officer has stated that there is no overlapping at all. In these circumstances, the first respondent ought to have granted variation sought for. No other legal impediment in granting variation has been stated by the first respondent. Hence, I am of the view that the appellant is entitled for variation sought for.

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In the result, the appeal is allowed. The first respondent is directed to grant variation sought for by the appellant.”

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But, in the appeal, none of the operators ie., the writ

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petitioners were parties. Therefore, being aggrieved, the stage

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W.A. Nos. 1251 & 1260 of 2022 : 8:

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carriage operators on the route have preferred the writ petitions, basically contending that the judgment of the learned single Judge is violative of Rule 179 of the Kerala Motor Vehicles Rules, 1989 (Rules, 1989’ for short), since no hearing was provided to the affected parties by the Tribunal.

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It is submitted that the objections raised by the writ petitioners before the Regional Transport Authority have not been considered by the Tribunal. It is also submitted that the Tribunal ought to have dismissed the appeal for non-joinder of necessary parties. It is also contended that no appeal would lie against an order rejecting the application for conversion of class of vehicle from ordinary to Limited Stop Ordinary Service. It is also contended that the Tribunal had only considered the question regarding the benefit which would accrue to the travelling public in the event of extension being granted.

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That apart, it is submitted that the question as to whether conversion of class of service from ordinary to Limited Stop Ordinary Service would affect the travelling public, was never considered by the Tribunal. It is also pointed out that the Tribunal, instead of remitting the matter back to the Regional Transport Authority to consider the application afresh, allowed the appeal with a positive direction to the Regional Transport Authority to grant

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W.A. Nos. 1251 & 1260 of 2022 : 9:

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variation, which is absolutely beyond jurisdiction and an arbitrary action.

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The learned single Judge, after taking into consideration the rival submissions and the provisions of the Act, 1988 and Rule 179 of the Rules, 1989, allowed the writ petitions after finding that the failure on the part of the Tribunal to hear the affected persons as provided under Rule 179 of the Rules, 1989 is bad in law. It is, thus, challenging the legality and correctness of the judgment of the learned single Judge, writ appeals are preferred by the respondent.

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We have heard the learned counsel for the appellant Sri. K.V. Gopinathan Nair, Sri. I Dinesh Menon and Sri. Jitheseh Menon for the party respondents, Sri. P. Santhosh Kumar, learned Special Government Pleader for the State officials and Sri. Deepu Thankan for the Kerala State Road Transport Corporation, and perused the pleadings and material on record.

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The paramount contention advanced by the learned counsel for the appellant is that the findings of the learned single Judge that the existing operator has a right to object to the conversion of the class of vehicle is illegal and arbitrary. It is also contended that the right of the existing operators for objecting to a permit is only regarding timings. It is further submitted that the settlement of timings is a procedure to be taken place after the

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W.A. Nos. 1251 & 1260 of 2022 : 10:

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grant of permit. Therefore, the sum and substance of the contention advanced by the appellant is that the writ petitions were not maintainable under law.

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That apart, it is contended that the Tribunal has clearly found that there is no overlapping at all and there is no illegal impediment in granting the variation sought for. It is also contended that the findings were rendered by the Tribunal based on the records as well as the reports and also hearing the KSRTC. Therefore, it is submitted that neither the writ petitioners nor the State authorities and the KSRTC are having a case that the extended portions sought for is on a notified route.

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It is further contended that the learned single Judge failed to note that none of the legal rights of the writ petitioners are affected by the judgment of the Tribunal. Other contentions are also raised.

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On the other hand, the learned counsel appearing for the party respondents, learned Special Government Pleader as well as the learned Standing Counsel for the KSRTC advanced arguments in support of the judgment rendered by the learned single Judge.

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It is also submitted by the learned counsel for the party respondents that the finding rendered by the Regional Transport Authority that classes of vehicles cannot be converted against the

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W.A. Nos. 1251 & 1260 of 2022 : 11:

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scheme of 2017 Notification, is in accordance with law. It is further pointed out that the permit of the appellant as well as the others are protected in view of the provisions of the scheme. However, the class of vehicle on the date of introduction of the scheme has to be continued as such and no change of class of vehicle is permissible under law.

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That apart, it is contended that the Tribunal has failed to take note of the imperative conditions of the scheme in the 2017 Notification, and therefore, the learned single Judge was right in allowing the writ petitions and directing the Tribunal to reconsider the matter afresh.

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We have considered the rival submissions made across the Bar. The issue with respect to the variation of permit is guided by Section 80(3) of the Act, 1988, which specifies that an application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or by altering the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit shall be treated as an application for the grant of a new permit.

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However, the proviso thereto states that it shall not be

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W.A. Nos. 1251 & 1260 of 2022 : 12:

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necessary so to treat an application made by the holder of stage carriage permit who provides the only service on any route to increase the frequency of the service so provided without any increase in the number of vehicles. Other conditions are also prescribed thereunder.

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The variation of permit conditions is dealt with under Rule 179 of the Rules, 1989, which reads thus:

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‐ ‐ “179. Permit Conditions variation of. (1) Every application for variation of conditions of permit made ‐ under sub section (3) of Section 80 of the Act or otherwise shall be in Form P.V.A.". (2) Upon receipt of an application made by the holder of the permit to vary any one or more of the conditions ‐ thereof other than those referred to in sub section (3) of Section 80 of the Act, the Transport Authority which granted the permit may allow the application or for reasons to be recorded in writing disallow the same: Provided that if the grant of variation would authorise transport facilities materially different from those authorised by the original permit, the Transport Authority shall dispose of the application only after giving the interested persons, if any, an opportunity of being heard.

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‐ Explanation. For the purpose of this rule, variation of Transport facilities not exceeding 25 per cent of the Gross Vehicle weight or seating capacity in respect of goods carriages and stage carriages respectively shall not be deemed as materially different.”

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W.A. Nos. 1251 & 1260 of 2022 : 13:

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It is the specific case of the writ petitioners that the Regional Transport Authority has passed the order taking into account Notification 2017 in regard to the notified sector operated by the KSRTC and it is held that the conversion of the vehicle sought for from the ordinary service to Limited Stop Ordinary Service violates the scheme. It is also evident and clear that the application submitted by the appellant was objected to by the stage carriage operators on the route on various grounds and it was taking note of the said aspect that the learned single Judge has found that the order of the Tribunal is in violation of the proviso to Rule 179(2) of the Rules, 1989; which makes it clear that the application for variation shall be considered only after giving an opportunity of being heard to the interested persons, if any.

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It is the case of the appellant that the operators in the route are not interested persons, since the extension sought for by the appellant would not, in any manner, affect the operators on the route. However it is contended by the writ petitioners that, if the conversion of a saved permit is made from ordinary service to Ordinary Limited Stop Service, it would be interfering with the scheme of the 2017 Notification issued by the State Government.

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So also, the en-route operators have a case that if the

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W.A. Nos. 1251 & 1260 of 2022 : 14:

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stage carriage of the appellant is permitted to be operated as a Limited Stop Ordinary Service, it would materially affect them for the reason that they would have to carry more students with concession in their stage carriages, since the appellant would be skipping various stops consequent to the conversion of the vehicle as a Limited Stop Ordinary Service.

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The Kerala State Road Transport Corporation has a contention that since a scheme is notified by the State Government in the existing route operated by the appellant, the variation sought for by the appellant and change of class of vehicle would interfere with the smooth operation of the stage carriages of the Kerala State Road Transport Corporation.

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Therefore, in our view, the writ petitioners were interested persons entitled to be heard before any orders were passed by the Tribunal. Considering the facts, circumstances, and law as above, we are of the definite opinion that no interference is required to the judgment of the learned single Judge insofar as the finding with respect to the failure of the Tribunal to grant an opportunity to the en-route operators to participate in the proceedings before the Tribunal.

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However, since we find that the basic issue is to be considered by the Regional Transport Authority, Malappuram, taking

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W.A. Nos. 1251 & 1260 of 2022 : 15:

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into account all the attendant circumstances, including the intricacies of the Notification, 2017, it is apposite that the matter is reconsidered by the Regional Transport Authority, Malappuram after providing an opportunity of hearing and participation to all en-route operators in the matter of variation of the permit.

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Therefore, we decline the relief sought for by the appellant to interfere with the common judgment of the learned single Judge; however, we are inclined to modify that part of the judgment remitting the matter for consideration of the State Transport Appellate Tribunal.

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Accordingly, we direct the Regional Transport Authority, Malappuram to reconsider the matter in accordance with law, taking into consideration all attendant matters required for the purpose, including the scheme as per the Notification, 2017, at the earliest and at any rate within a month from the date of receipt of a copy of this judgment.

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Writ appeal is disposed of as above.

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

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W.A. Nos. 1251 & 1260 of 2022

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: 16:

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APPENDIX OF WA 1251/2022

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APPELLANT’S ANNEXURES:

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Annexure A1 TRUE COPY OF THE REPORT DATED 9.10.2019. Annexure A2 TRUE COPY OF THE JUDGMENT OF THE HON'BLE COURT IN WP(C) NO.30161/2017 DATED 15.3.2018.

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RESPONDENTS’ ANNEXURES: NIL

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True Copy

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PS To Judge.

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Shihab, v. P.K.Moosa

Case brief

What is this about?

What did the court decide?

Shihab, v. P.K.Moosa

Case brief

What is this about?

What did the court decide?

What the court decided

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