Kumaran, M.C. vs Jacob, K.M. and Another

K. Sreedharan, J.—Second Respondent in O.P. 18223 of 1994 is the Appellant. Even though he was made second Respondent in the Original Petition, no notice was issued to him. Without affording him an opportunity of being beard in the matter, the learned Single Judge allowed the original petition after hearing the learned Government Pleader, who seems to have represented the Secretary, Regional Transport Authority, Ernakulam. Hence this appeal.

On behalf of first Respondent in the appeal, who was the writ Petitioner, Sri K.V. Gopinathan Nair entered appearance. We heard arguments of counsel appearing on either side in extenso. We are finally disposing of the appeal.

Petitioner in the Original Petition and the second Respondent are stage carriage operators. Petitioner''s vehicle, bearing registration No. KCF 9727, is covered by a permit on the route Vattaparambu-Mulamkuzhy via. Angamaly, Kalady and Malayattoor. While he was plying the vehicle on that route, Regional Transport Authority, Ernakulam considered the application of the second Respondent, Appellant herein, for the grant of a permit on the route Koovappady-Mulamkuzhy via. Perumbavoor and Kalady in relation to the vehicle KEE 2642. That application was allowed and a permit was granted subject to settlement of timings. First Respondent by proceedings No. C5/57435/94/E, dated 8th November 1994 issued a set of timings for the vehicle of the second Respondent. Alleging that the said set of timings granted to the vehicle of the second Respondent clashes with the timings of the writ Petitioner''s vehicle, he filed a representation before the first Respondent on 11th November 1994. This was done without taking any step to question the correctness of the proceedings issued by the first Respondent on 8th November 1994. After filing Exhibit P-1 representation before the first Respondent in the Original Petition, he approached this Court by filing O.P. 18223/94 on 24th December 1994 and got the Original Petition disposed of by judgment dated 30th December 1994 by directing the first Respondent to dispose of Exhibit P-1 representation.

The judgment rendered by the learned Single Judge may appear to be innocuous, not prejudicially affecting the interest of the second Respondent, who was not heard in the matter. But on a closer scrutiny, it is evident that Petitioner has stolen a march over the second Respondent in getting Annexure A-1 varied without recourse to the remedy that is provided by the Motor Vehicles Act. Under the cover of the impugned judgment, Petitioner wants to have the proceedings dated 8th November 1994 varied to his advantage. Can such a step be permitted?

Identical issue came up for consideration before a Division Bench of this Court in Krishnankutty v. John 1992 (2) KLT 883. This Court went into the scope and effect of Rule 212 of the Kerala Motor Vehicles Rules, 1989. After an exhaustive survey of the entire legal position, Division Bench observed as follows:

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 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 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 Rule 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.

We are in respectful agreement with the above observations made by the Bench. No change of situation has been brought out warranting an interference with the timings granted to the second Respondent in the Original Petition as per proceedings dated 8th November 1994. Therefore, the representation, Exhibit P-1, filed before the first Respondent cannot be taken as one seeking for alteration of the timings invoking provisions contained in Rule 212 of the Kerala Motor Vehicles Rules, 1989. Exhibit P-1 has not been shown to be a statutory representation either. In such a situation, no writ in the nature of mandamus could have been issued for its disposal by the first Respondent.

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.

In view of what has been stated above, we set aside the impugned judgment and allow the Writ Appeal with costs, including Advocate''s fee of Rs. 1,000. First Respondent should pay this costs to the Appellant herein.