Ajoy L.S. v. Secretary, Regional Transport Authority, Alappuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938** **WP(C).No. 22512 of 2016 (L) ----------------------------** **PETITIONER(S):** **-------------** **AJOY L.S., S/O.K.R.SIVARAMAN NAIR, AGED 49 YEARS, LAKSHMI VILASAM(THIRUVONAM), KIZHAKKENADA, CHENGANNUR.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** **RESPONDENT(S): --------------** **THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, ALAPPUZHA - 688 001.** **BY SENIOR GOVERNMENT PLEADER SMT. K.A. SANJEETHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/7/2016, THE COURT ON 29-07-2016 DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 22512 of 2016 (L) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXT. P1 : TRUE COPY OF THE ORDER NO.41876/2016 DATED 17.6.2016. RESPONDENT(S)' EXHIBITS : ----------------------EXT.R1(A): COPY OF THE JUDGMENT IN WRIT APPEAL NO. 2588/2015. EXT.R1(B): COPY OF THE JUDGMENT REPORTED IN 2016(3) KLT 87. //TRUE COPY// P.A. TO JUDGE** **bp** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No.22512 of 2016 ----------------------------------------------Dated this the 29[th] day of July, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to the respondent to issue clearance certificate to stage carriage bearing No.KL-3-H-3341 since the said vehicle was replaced by another vehicle as could be seen from Ext.P1 and also to declare that the stand taken by the respondent that only on production of current records of the incoming vehicle mentioned in Ext.P1, clearance certificate for the outgoing vehicle can be issued is illegal and arbitrary. 2. Brief facts for the disposal of the writ petition are thus; petitioner is the registered owner of stage carriage bearing No. No.KL-3-H-3341. The above vehicle is covered with a regular permit to operate on the route Changanassery - Thiruvalla - Mavelikkara - Kayamkulam. The said vehicle is 2002 model. Petitioner is also the registered owner of another stage carriage bearing No.KL-4-N-3497. The said vehicle is a 2003 model one. Petitioner submitted an application for replacement of stage carriage No. No.KL-3-H- W.P.(C). No.22512 of 2016 2 3341 with stage carriage No.KL-4-N-3497. Respondent as per Ext.P4 order dated 17.06.2016 allowed the replacement and petitioner was directed to produce the current records of the vehicle bearing No.KL4-N-3497 within 30 days. 3. It is also contended that the stage carriage bearing No.KL-4-N-3497 is under G-form and hence only after adjudication of the G-form regarding the liability of payment of tax and also after taking new insurance, the current records of the vehicle will be able to be produced and for which petitioner is having time as provided in Ext.P1 itself. According to the petitioner, the said time can be further extended for a period of three months. 4. Therefore, petitioner requested the respondent to issue clearance certificate in respect of the outgoing vehicle bearing No.KL-3-H-3341. Petitioner has decided to sell the said vehicle to another operator at Pathanamthitta and for which, necessary agreements are also entered into. That apart it is also stated that, only from the sale proceeds of the said vehicle, petitioner will be able to clear the liability with W.P.(C). No.22512 of 2016 3 respect to the incoming vehicle for the purpose of producing the current records. So also it is contended that, respondent ought to have issued clearance certificate of the outgoing vehicle. Since, replacement the outgoing vehicle has become idle and hence there is no legal bar in issuing the clearance certificate. However, respondent is maintaining a stand that only on production of the current records of the incoming vehicle, the clearance certificate can be granted. According to the petitioner, such a stand adopted by the respondent cannot be legally sustained. It is in this background, this writ petition is filed. 5. Respondent has filed a counter affidavit denying the allegations and claims and demands made by the petitioner. That apart it is contended that, both the vehicle are under G- form and the fitness certificate in respect of the incoming vehicle had expired on 12.3.2016. It is thereupon that petitioner was directed to obtain a till date report regarding the service of the vehicle and to release the incoming vehicle from Form- G for effecting replacement. Instead of clearing W.P.(C). No.22512 of 2016 4 the dues and conducting CF test in respect to the incoming vehicle, petitioner requested to issue permitless certificate from the RTO, Pathanamthitta for conducting service in the jurisdiction. Replacement is possible only when the records of the incoming vehicle is current. Without updation of tax and valid Certificate of Fitness, question of replacement by KL-04-N-3497 does not arise. That apart it is also contended that, vehicle No. KL-03- H-3341, the outgoing vehicle will become permitless only after effecting replacement. So also it is contended that only after replacing the permit covered by the outgoing vehicle by the incoming vehicle, the vehicle becomes free and ready for the issue of permitless certificate. 6. It is also submitted that the intention of the petitioner is to keep the permit in respect of the outgoing vehicle under suspended animation i.e., by detaching the permit from the vehicle and obtain permitless certificate. That apart it is also contended that, there is no provision under the Motor Vehicles Act, 1988 and Central Motor Vehicles Rules, 1989 (hereinafter called “the Act” and “the Rules”) to keep the W.P.(C). No.22512 of 2016 5 permit under suspended animation. It is also urged that the permit cannot be detached from the vehicle and that the permit holders are statutorily bound to make available the vehicle throughout the currency of period of permit for running the service. In the event the permit holders are unable to utilize the vehicle for service, they can very well surrender the permit. That apart it is also contended that, as provided under Section 66 of the Act, no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place. It is also submitted that Section 83 of the Act provides opportunity to replace the vehicle with the permission of the Regional Transport Authority. 7. As per rule 174(4) of the Kerala Motor Vehicles Rules, holder of a permit shall produce RC of the vehicle to make necessary entries to effect replacement. That apart it is further contended that, as per rule 159(1) of the said Rules, no permit shall be issued before entering the registration mark of the vehicle to which it relates, has been entered W.P.(C). No.22512 of 2016 6 therein. Petitioner has been issued with 30 days time to produce the current records of the vehicle, which is said to be replaced. The incoming vehicle is in arrears of tax for the quarter 01.04.2016 to 30.06.2016, for which Form-G has already been submitted. According to the respondent, the vehicle has already covered 13 years of service and there is a possibility that it might be in a bad state of affairs. Otherwise clearing tax dues for a quarter and producing the vehicle for certificate of fitness is not at all a burden for the petitioner and he could have produced the same within 30 days itself. 8. It is the further submission that mere offering of a registration number does not ensure that the vehicle is attached to the permit and release of any vehicle from the permit without replacement is the same wrong process known as “suspended animation', which was the method adopted by the stage carriages for the past 7 years. The permit has effectively lost its existence as it is not attached to any vehicle in contravention to Section 66 r/w. Rule 159. According to the respondent, the issue now raised by the petitioner is W.P.(C). No.22512 of 2016 7 covered in Ext.R1(a) Division Bench Judgment rendered by this court in W.A No.2588/2015 dated 2.2.2015, wherein this court has held as follows: “We find substance in the submission of the learned Government Pleader that there is no Provision under Motor Vehicle Act for giving Clearance Certificate. The vehicle which is attached to permit can only be permitted to be detached on an alternate vehicle or when the permit is cancelled.” 9. It is also stated that the issue was again considered by a Division Bench of this court in **Regional Transport Authority v. Abdul Salam** [2016 (3) KLT 87], in which it was held that neither the court nor the Regional Transport Authority is empowered to release the vehicle from a permit without effecting replacement. It is, therefore, prayed that the petitioner has not made out any case warranting interference of this court as projected by the petitioner. 10. Heard learned counsel for the petitioner, learned Senior Government Pleader and perused the pleadings and documents on record. W.P.(C). No.22512 of 2016 8 11. Learned counsel reiterated the contentions raised in the writ petition. That apart, my attention was brought to Rule 174 of the State Rules, by which the replacement of vehicle is dealt with and specifically to clauses (a) & (b) of sub-rule (1) of the said provision which read thus: “(a) If the new vehicle is not in his possession, state the material particulars in respect of which the new vehicle differs from the old; and' (b) If the new vehicle is in his possession, forward the certificate of registration thereof.” 12. Therefore, according to the learned counsel, production of the vehicle as sought is not required but the petitioner need only comply with the provisions of clauses (a) and (b). Therefore, according to the petitioner, since the petitioner has stated necessary details with respect to the incoming vehicle, there is no prohibition for the respondent under law to provide a clearance certificate of the outgoing vehicle to the petitioner. So also learned counsel contends that, the Division Bench judgment of this court cited supra W.P.(C). No.22512 of 2016 9 has no relevance with respect to the facts of this case and contended that, there the question considered by this court was whether on an application made by the regular permit holder for issuing permitless certificate i.e., detaching the vehicle from the permit by keeping the permit under suspended animation, order can be passed by Regional Transport Authority permitting the permit holder to detach the vehicle from the permit so as to enable the permit holder to use the vehicle for the purpose of any other permit or for purpose of transfer of the vehicle for any other purpose. That apart it is also contended that petitioner intends to raise money from the sale of the outgoing vehicle and remit the tax of the incoming vehicle. That, since the details with respect to the incoming vehicle is fully furnished, petitioner has complied with the legal requirements provided under Rule 174(1) of the State Rules. 13. Per contra learned Senior Government Pleader contended that no clearance certificate can be issued to the petitioner without production of the current records of the W.P.(C). No.22512 of 2016 10 incoming vehicle. The attempt of the petitioner is to keep the permit of the outgoing vehicle under suspended animation and use the said vehicle for other purposes. That apart it is also contended that as per Section 83 of the Act, petitioner is entitled to get the permission of the respondent to replace any vehicle covered by permit by any other vehicle in the same nature. That apart my attention was also invited to rule 159 of the State Rules which deals with permits which read thus: 159. Permits-Entry of Registration marks compulsory - Time for entry:- (1) No permit shall be issued before entering the Registration mark of the vehicle to which it relates has been entered therein. (2) When the applicant is unable to produce the certificate of registration on the date of his application for permit, owing to the fact that he is not on that date in possession of the vehicle duty registered, or for some other reason, the applicant shall within one month of the sanctioning of the application by the Transport Authority or such longer period or periods not exceeding four months in the aggregate as the Authority may specify, produce the certificate of registration of the W.P.(C). No.22512 of 2016 11 vehicle before that Authority so that the particulars of the registration mark may be entered in the permit. In the event of any applicant failing to produce the certificate of registration within the period specified by the Transport Authority, the Authority may revoke its sanction of the application.” 14. Therefore, according to the learned Senior Government Pleader, no permit shall be issued before entering a registration mark of the vehicle to which it relates has been entered therein. If the current records are available with the petitioner, according to the Government Pleader, the same could have been produced by the petitioner within the period of 30 days, which expired on 17.7.2016. It is also contended that, the provision with respect to extension for a period of three months applies only in respect of a fresh grant. Therefore, it is the contention of the counsel that, petitioner is not entitled to get extension when the time provided has expired. 15. On an evaluation of the facts and circumstances and materials on record, the sole question to be considered is W.P.(C). No.22512 of 2016 12 whether petitioner is entitled to get a clearance certificate for the outgoing vehicle before production of the current records of the incoming vehicle ? True, as provided under Rule 174(1) of the State Rules, if the vehicle is not in possession of the petitioner, petitioner needs to state only material particulars if the new vehicle differed from the old and if the new vehicle is in his possession, forward the certificate of registration thereof. It is thereupon that the application can be processed by the respondent as provided under sub-rule (2) of rule 174. Admittedly petitioner is in possession of the vehicle and therefore, petitioner is bound to forward the certificate of registration thereof. Petitioner is not having a case that, petitioner has forwarded the certificate of registration. The sole case put forth by the petitioner is that, petitioner has entered the necessary materials in the application and therefore, on receipt of the application entering the details with respect to the vehicle, petitioner is entitled to get the clearance certificate of the outgoing vehicle. W.P.(C). No.22512 of 2016 13 16. In my considered opinion, the said contention put forth by the petitioner with respect to the particular facts, the petitioner is not entitled to get a clearance certificate due to the very fact that petitioner, who is in possession of the incoming vehicle is liable under the rule 174(1)(b) to forward the certificate of registration thereof mandatorily. I am also satisfied that the judgment cited supra relied on by the learned Senior Government Pleader applies to the facts of this case. Learned Government Pleader has invited my attention to paragraph 15 of the judgment and canvassed the proposition that without surrendering vehicle, petitioner wants to obtain permission of the authority to detach the vehicle from the permit which is not permissible under the statutory scheme. It is also held therein that, the above statutory provisions clearly indicate that the permit holder is specifically obliged to keep the vehicle ready and in use for the entire period of permit and in the event he transfers the vehicle and looses ownership of the vehicle, permit can be suspended or cancelled. When a permit is suspended, W.P.(C). No.22512 of 2016 14 temporary permit can be granted and the object is that service covered by permit should always be one for the benefit of the public and permit holder has an obligation to run the service and in the event he wants to withdraw from the service, he has to surrender the permit with notice, so that the authorities can make proper arrangements. It was also held that the attempt of the petitioner therein was to keep the permit alive, so that in future if they want, they can revive the service. 17. Taking into account the particular fact situation in this case and reckoning the provisions of law and the law laid down by this court in the judgments cited supra, I am satisfied that petitioner is not entitled to get clearance certificate for the outgoing vehicle as sought for in this writ petition without producing the current records of the incoming vehicle. In view of the said discussions, it is amply clear that petitioner has not made out any legal or factual situations warranting interference of this court exercising its power of discretion under Article 226 of the Constitution of India. W.P.(C). No.22512 of 2016 15 18. Petitioner has filed this writ petition before this court on 4.7.2016. While the subject matter is pending before this court, the time granted in Ext.P1 dated 17.6.2016 has expired. Even though Government Pleader contended that since the current records is not produced within the time fixed in Ext.P1, petitioner is not entitled to take advantage of the situation contained under Ext.P1, I am of the considered opinion that, since intrinsic issues are raised by the petitioner in this writ petition, I think it is only just and proper that, the period granted as per Ext.P1 is extended for a period of 10 days from 27.7.2016, thus enabling the petitioner to produce the current records of the incoming vehicle. Accordingly I do so. Therefore, the writ petition is disposed of declining the reliefs sought for by the petitioner, however, subject to the above observations. Sd/- **SHAJI P. CHALY JUDGE** smv/ 19. 07.2016