Joji Edattel Vs. the Secretary, R.T.A. - Court Judgment

Excerpt:
- - a decision will be taken within two weeks from the date of production of a copy of this judgment by the petitioners, and only in the event of failure, the r.cyriac joseph, j.1. this writ appeal is filed against the judgment in writ petition no. 28708/2003. the appellant was not a party to the writ petition. he has filed this appeal with the leave of the court. the 2nd respondent was the petitioner in the writ petition.2. the 2nd respondent is the holder of regular permits to operate stage carriage services on the route kumily-ernakulam and thopramkudi-ernakuiam in respect of his stage carriages kl-6/7671 and kl-6/9273. he submitted ext.p1 application dated 28th july, 2003 to the secretary, r.t.a., idukki requesting for change of timings in respect of the above-mentioned permits. in ext.p1 application, he pointed out that the timings had been issued about two years back and during the said period of two years various other services had been introduced on the routes and the operation of the two services was not beneficial to the public to the full extent and hence slight changes were required in the timings of the services. when there was delay in taking decision on ext.p1 application, he filed the writ petition praying for a direction to the only respondent, i.e., the secretary, r.t.a., idukki to consider and dispose of ext.p1 application. the writ petition was disposed of at the admission stage along with a few other writ petitions with the following directions:'the request of the petitioners is only for change of timings for operation of their vehicles on account of alleged clash of timings with other operators. it is not possible for the r.t.o. to hold timing conference each time at the request of every operator. therefore, the r.t.o. will consider the change of time of operation requested for by the petitioners, and after considering the time of operation of other operators in the route, he will make such modification that is required as far as possible without affecting other operators and in a reasonable manner. in this regard he will hear the petitioners and the operators who would be affected. if a revision of timings is possible without grievance for the petitioners and other operators, then the r.t.o. will grant the changes suggested by the petitioners with such modification as he may consider necessary without the necessity of holding a timing conference. however, if there is objection from other operators, then the r.t.o. will have to necessarily settle the timings after hearing other operators in the next timing conference, otherwise scheduled to take place. a decision will be taken within two weeks from the date of production of a copy of this judgment by the petitioners, and only in the event of failure, the r.t.o. should postpone the matter till holding of next timing conference.writ petitions are disposed of as above.'3. aggrieved by the directions contained in the impugned judgment, the appellant who is an operator on the same route has filed this appeal. according to the appellant, if the 2nd respondent was aggrieved by the timings issued in respect of his two stage carriage services he should have filed revision before the state transport appellate tribunal under section 90 of the motor vehicles act, instead of filing ext.p1 application to the secretary, r.t.a. for change of timings. the appellant relies on the decisions of this court in krishnankutty v. john (1992 (2) klt 883) and m.c. kumaran v. k.m. jacob and anr. (1995 (1) klj 296). it is contended that the impugned judgment is against the principles stated in the above-mentioned two decisions of this court.4. sri. rajesh who accepted notice for the 2nd respondent submits that under the provisions of rule 145 and rule 212 of the kerala motor vehicles rules, 1989, the 2nd respondent was entitled to make an application for change of timings and therefore ext.p1 was submitted in accordance with the rules. learned counsel points out that as per rule 145(7)(ii), in deciding whether to grant or refuse change of timings the transport authorities shall have regard to special circumstances such as changes in the number of permits either on the route or on the sectors of the route. the learned counsel further points out that the ground stated in ext.p1 for change of timings was the changes in the number of permits on the route. it is contended that the above- mentioned two decisions of this court have no application to the facts of this case.5. rule 212(1) of the kerala motor vehicles rules, 1989 says that 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.in krishnankutty v. john (1992 (2) klt 883) a division bench of this court held as follows:'7. it was argued that the secretary, r.t. a. can revise the timings 'from time to time' as enjoined in rule 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 edition page 1053. black's law dictionary, 5th edition 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 rule 212 of the motor vehicles rules, 1989. if the interpretation placed by counsel for the first respondent is accepted, it will render rule 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 article 14 of the constitution of india. an interpretation of the statutory provision which will expose it to an attack based on article 14 of the constitution should be avoided, the scope and operation of the statutory power vested in the authority under rule 212 will be construed as to render it legal and effective. so, we hold that under rule 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.'thus the words 'from time to time' mean 'as occasion may arise'. to revise the timings, an occasion should arise. an occasion arises only when there is a change or alteration in the situation or circumstances. hence changes or alteration in the situation or circumstances can be a ground foe granting change of timings. rule 145(7) of the kerala motor vehicles rules, 1985 reads thus:'(7) transport authorities shall, in deciding whether to grant or refuse additional trips or change of timings, have regard to the following matters, namely:-(i) need for provision of additional facilities or for revision of existing timings in the interest of public;(ii) special circumstances, such as changes in the rail way timings, changes in the number of permits either on the route or on the sectors of the route, or variation of routes:provided that whenever rotation of timings is to be enforced, state carriages carrying mails shall be excluded in the public interest, and the relation shall be enforced only in respect of the other stage carriages on the particular route.'hence under rule 145(7), a transport authority is competent to grant change of timings, if there were changes in the number of permits on the route or on the sectors of the route.6. in ext.p1, the 2nd respondent specifically stated that timings had been issued in respect of his stage carriages about two years back and during the said period of two years, various other services had been introduced on the route and consequently the operation of the two stage carriages was not beneficial to the public to the full extent. in other words the 2nd respondent pleaded special circumstances such as charges in the number of permits on the route, which under the rules, could be a relevant consideration for granting change of timings. hence it cannot be said that ext.p1 application was not in accordance with the provisions of the kerala motor vehicles rules, 1989 or that it cannot be considered by the regional transport authority. it cannot also be said that the learned single judge went wrong in directing the respondent r.t.a. to consider ext.p1 application.7. hence we do not find any merit in the contention of the learned counsel for the appellant that the impugned judgment is against the decision of a division bench of this court in krishnankutty v. john (1992 (2) klt 883). there is also no merit in the contention that the impugned judgment is against the decision of a division bench of this court in m.c. kumaran v. k.m. jacob and anr. (1995 (1) klj 296). it may be noted that in m.c. kumaran v. k.m jacob and anr. (1995 (1) klj 296), the earlier decision in krishnankutty v. john (1992 (2) klt 883) was referred to and followed. in m.c. kumaran v. k.m. jacob and anr. (1995 (1) klj 296), the court interfered with the judgment of the learned single judge only because no change of situation had been brought out warranting interference with the timings already granted to the 2nd respondent in the writ petition. the court took the view that the representation in that case could not be taken as one seeking alteration of the timings invoking the provisions contained in rule 212 of the kerala motor vehicles rules and that it was not shown to be a statutory representation. in this case, as already mentioned, ext.p1 application was submitted by the 2nd respondent in accordance with the provisions contained in rules 145(7) and 212 of the kerala motor vehicles rules, 1989 and the 2nd respondent had specifically pleaded a change of situation warranting change of timings, that is, introduction of various other services on the route during the period of about two years after the grant of timings to the 2nd respondent's stage carriages. this is a ground on which change of timings can be granted by the r.t.a. to the stage carriages of the 2nd respondent in view of rule 145(7) of the kerala motor vehicles rules.8. learned counsel for the appellant contended that even though the 2nd respondent requested for change of timings, in ext.p1 application he did not furnish the particulars of the existing timings of his vehicles or the timings and other details of the various other services stated to have been introduced. though it would have been more desirable to furnish those particulars and details also in ext.p1, the applicant can be permitted by the r.t.a. to furnish them before considering ext.p1 application. the absence of those particulars and details in ext.p1 application cannot be a valid reason for refusing to entertain the writ petition or to direct the r.t.a. to consider ext.p1. hence we are not inclined to interfere with the impugned judgment on the ground that ext.p1 application did not contain the above-mentioned particulars and details.9. it is to be noted that as per the impugned judgment, the 1st respondent was directed to hear the petitioners and the operators who would be affected, before effecting any change of timings. it is specifically stated that if a revision of timings is possible without inconvenience for the petitioners and other operators, the 1st respondent may grant the changes suggested by the applicant, with such modification as he may consider necessary without the necessity of holding a timing conference. but if there is objection from other operators, the 1st respondent is bound to settle the timings only after hearing other operators in the next timing conference otherwise scheduled to take place. it is seen that after the impugned judgment, annexure a4 order, dated 6th october, 2003 was passed by the 1st respondent granting change of timings only in respect of stage carriage no. kl 6/9273. it is also seen from the said order, dated 6th october, 2003, that, a timing conference was conducted on 3rd october, 2003 as directed in the impugned judgment and all affected 52 operators were present in the timing conference. it is not disputed that the appellant also was given notice of the timing conference and that he participated in the said timing conference held on 3rd october, 2003. in such circumstances, if the appellant is aggrieved by the decision contained in the order, dated 6th october, 2003 of the 1st respondent, he can resort to the statutory remedy available to him. 10. in the above circumstances, we do not find any valid reason to entertain this writ appeal. there is no merit in the writ appeal and the writ appeal is dismissed.