Rahath vs The Secretary

K. Surendra Mohan, J.—The petitioner who was not a party to W.P. s(C) No. 12891 of 2014 has filed this review petition seeking review of the judgment dated 28.5.2014 by which the writ petition has been finally disposed of. According to the review petitioner, the writ petitioner had not placed the entire facts before this Court. Therefore, the judgment sought to be reviewed has been passed without being considering all the material facts.

According to Sri. K.V. Gopinathan Nair, who appears for the review petitioner, it is true that the second respondent had been conducting services on the route, Eloor Depot-Chilavannoor with a stage carriage vehicle bearing registration No. KBE. 1591. However, the said vehicle was sold by him on 7.6.2001, as evident from Annexure-A1 copy of the registration particulars of the vehicle. Reliance is placed on Annexure-A2 proceedings to point out that the vehicle had become permitless as on 8.6.2001 and therefore, without any objection, the ownership of the vehicle was transferred to the name of the purchaser. The service has been remaining disrupted, ever since. According to the counsel, in view of the notification issued by the State Government on 14.7.2009 it is not possible for a city service to be conducted from Eloor-Chilavannoor for the reason that, there would be overlapping on the notified route, exceeding 5%. It is further pointed out that, in view of the above, applications for regular permit submitted by other operators to conduct services in the vacancy of the second respondent had been rejected. Annexure-A3 is a copy of one such order of rejection, though the reason for rejection stated therein is violation of rule 2C(a) of the Kerala Motor Vehicles Rules. It is the contention of the counsel for the review petitioner that, the direction in the judgment, sought to be reviewed, would not have been issued, had the above facts been placed before this Court, before disposing of the writ petition.

A counter affidavit has been filed by the second respondent refuting the contentions of the review petitioner. The second respondent disputes the locus standi of the petitioner. According to the counsel for the second respondent, no permit has been produced by the review petitioner to substantiate his claim that he is a stage carriage operator. Therefore, this Court is left in the dark, as to the route over which the review petitioner is conducting his services and the timings subject to which, he is conducting the services. According to the counsel for the second respondent, if there is violation of the notified scheme as complained by the petitioner, it is for the K.S.R.T.C. to complain and not the review petitioner. It is also contended that, there has been no suppression of any material fact in the writ petition for the reason that, it has been disclosed in the writ petition that, the permit of the petitioner had expired and that he had not been operating his service. Since no other operator has been granted with permit to conduct services on the route, he had applied the grant of a temporary permit of 4 months'' duration under section 87(1)(c) of the Kerala Motor Vehicles Act, 1988. It is further pointed out by the counsel that what has been ordered this Court is only to consider the application, with no positive direction.

The counsel for the review petitioner on the other hand takes exception to the direction in the judgment, sought to be reviewed, which is to the effect that, the temporary permit shall be issued, if the records of the vehicle are in order and the vacancy is still subsisting. It is pointed out that, as a consequence, the first respondent has been, by implication, directed not to consider inter alia, the effect of the scheme of nationalisation as well as the notification dated 14.7.2009. Therefore, it is contended that at least to the limited extent of permitting the authority to consider the application afresh, the review petition is necessary to be allowed.

Heard. The operative portion of the judgment sought to be reviewed is extracted herein for convenience of reference:

"In view of the above, this writ petition is disposed of directing the respondent to consider Ext. P3 application in accordance with law and to pass appropriate orders thereon, as expeditiously as possible and at any rate within a period of two weeks. The respondent shall issue the temporary permit if the records of the vehicle are in order and the vacancy is still subsisting."

It is true that, what has been directed by me in the judgment was only to consider the second respondent''s application in accordance with law, and to pass appropriate orders thereon within the time limit stipulated therein. However, there is a further direction to issue the temporary permit, if the records of the vehicle are in order, and the vacancy still subsisting.

Having heard the counsel appearing for the respective parties, I am satisfied that the said direction requires to be reviewed and modified. It had not been brought to my notice that there was a likelihood of the scheme of nationalization being violated or that the notification dated 14.7.2009 was likely to be violated in the process of granting the temporary permit that was sought for. However, it is required to be noted that, the direction issued by me was to consider the petitioner''s application, "in accordance with law". Therefore, the further direction to grant the permit cannot be construed as disentitling the authority from considering the matter and passing appropriate orders, in accordance with law. It is not in dispute that, the second respondent has already been issued with a temporary permit in compliance with the direction of this Court. It is absolutely necessary that the first respondent recalls the temporary permit that has been issued and reconsiders the matter with notice to the review petitioner also. In the event of it being found that, there is violation of the scheme of nationalization or the notification dated 14.7.2009, it is made clear that, the authority would be at liberty to pass appropriate orders as enjoined by law.

In order to facilitate the first respondent to comply with the above clarification, the following directions are issued:

The review petition is allowed to the extent of withdrawing the directions to the first respondent to issue the temporary permit, if the records of the vehicle are in order and the vacancy is still subsisting.

The first respondent shall consider the application for temporary permit submitted by the second respondent afresh, in accordance with law, with notice to the petitioner as well as the second respondent and shall pass appropriate orders thereon, as expeditiously as possible, and at any rate within a period of three weeks of the date of receipt of a copy of this judgment.

The review petition is allowed as above.