Bindu Reghunandanan v. Regional Transport Authority, Thrissur and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938** ## **WP(C).No. 27878 of 2016 (H)** ## **----------------------------------------** ## **PETITIONER(S):** ## **------------------------** ## **BINDU REGHUNANDANAN, W/O.REGHUNANDANAN (LATE), PUTHUMANA HOUSE, PERINGAVU, THRISSUR.** ## **BY ADV. SRI.P.DEEPAK** ## **RESPONDENT(S):** - **--------------------------------** **1. THE REGIONAL TRANSPORT AUTHORITY, THRISSUR, REPRESENTED BY ITS SECRETARYTHRISSUR-680002.** ## **2. THE SECRETARY,** ## **REGIONAL TRANSPORT AUTHORITY, THRISSUR-680002.** **3. M.S.PREMKUMAR, MANAMMEL HOUSE, MSM TRANSPORT, KONATHUKUNNU P.O., THRISSUR-680131.** **4. P.PRASHOB,S/O.M.S.PREMKUMAR, MANAMMEL HOUSE, MSM TRANSPORT, KONATHUKUNNU P.O., THRISSUR-680131.** ## *** ADDL. RESPONDENT5 & 6 IMPLEADED** **5. P.ANOOP, S/O.M.S.PREMKUMAR, MANAMMEL HOUSE, MSM TRANSPORT, KONATHUKUNNU P.O., THRISSUR-680131.** ## **6. ASHADEVI,W/O.REGHUNANDANAN (LATE), PUTHUMANA HOUSE, PERINGAVU, THRISSUR** - **ADDL. RESPONDENTS 5 & 6 IMPLEADEDAS PER ORDER DATED 30.09.2016 IN I.A NOS.14238 & 14293 OF 2016** **R3-R4 BY ADV. SRI.M.JITHESH MENON** **R ADDL.5 BY ADV. SRI.SAJU J.VALLYARA R ADDL.6 BY ADV. SRI.SAJEEV KUMAR K.GOPAL R1 & R2 BY GOVERNMENT PLEADER SMT.A.C.VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AD** ## **WP(C).No. 27878 of 2016 (H) --------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------------------------EXT. P1 A TRUE COPY OF THE REGULAR PERMIT (PERMIT NO.P.ST.C9/51/91).** - **EXT. P2 A TRUE COPY OF THE DEATH CERTIFICATE DT.27-12-2008.** - **EXT. P3 A TRUE COPY OF THE INTIMATION DT.9-1-2009.** - **EXT. P4 A TRUE COPY OF THE DECLARATION DT.20-3-2009.** - **EXT. P5 A TRUE COPY OF THE APPLICATION FOR TRANSFER DT.20-3-2009.** - **EXT. P6 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE DT.15-7-2010.** - **EXT. P7 TRUE COPY OF THE REPRESENTATION DT.4-9-2010.** - **EXT. P8 A TRUE COPY OF THE RECEIPT DT.4-9-2010 FEE FOR REPLACEMENT.** - **EXT. P9 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DT.13-9-2010.** - **EXT. P10 A TRUE COPY OF THE RECEIPT DT.5-9-2011 FEE FOR RENEWAL.** - **EXT. P11 TRUE COPY OF THE APPLICATION FOR REPLACEMENT WITH COVERING LETTER DT.19-2-2015.** - **EXT. P12 TRUE COPY OF THE PROCEEDINGS OF 1ST RESPONDENT DT.12-3-2015. EXT. P13 TRUE COPY OF THE ORDER DT.30-7-2015 IN MP 588/15 IN MVAA 177/15.** - **EXT. P14 TRUE COPY OF THE ORDER DT.19-8-2015 IN WPC 25375/15.** - **EXT. P15 TRUE COPY OF THE TEMPORARY PERMIT VALID TILL 29-10-2015.** - **EXT. P15(A) TRUE COPY OF THE TEMPORARY PERMIT VALID TILL 28-11-15. EXT. P16 TRUE COPY OF THE JUDGMENT DT.28-4-2016 IN MVAA 177/15.** - **EXT. P17 A TRUE COPY OF THE SAID ORDER IN WA 848/2016 DT.22-4-2016. EXT. P18 TRUE COPY OF THE NOTIFICATION DT.30-7-2016 (C7/6461/2015/R) EXT. P18(A) TRUE COPY OF THE NOTIFICATION DT.30-7-2016 (C7/6459/2015/R). EXT. P19 TRUE COPY OF THE OBJECTION DT.16-8-2016.** - **EXT. P20 TRUE COPY OF THE APPLICATION FOR TEMPORARY PERMIT DT.19-8-2016.** ## **RESPONDENT(S)' EXHIBITS** **-------------------------------------------** **EXT.R3(A): TRUE COPY OF THE ORDER OF THE SECTRETARY, REGIONAL TRANSPORT AUTHORITY, THRISSUR DATED 8.12.2015** **EXT.R3(B): TRUE COPYOF THE ORDER OF THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, THRISSUR DATED 9.6.2016** **EXT.R5(A): TRUE COPY OF THE PERMIT DATED 18.7.2013** ## **//TRUE COPY//** **P.A. TO JUDGE** **AD** _**“C.R.”**_ ## **P.B.SURESH KUMAR, J.** ## **---------------------------------------** ## **WP(C).No.27878 of 2016** ## **---------------------------------------Dated this the 30[th] day of September, 2016** ## **JUDGMENT** This case is an illustration of the complexities of procedure and delay defeating the ends of justice. 2. The short facts relevant for decision are the following: The husband of the petitioner was operating a stage carriage service on Exhibit P1 regular permit which was valid till 19.09.2011. The permit was obtained in respect of stage carriage bearing No. KL 08/F 2021. The permit holder died on 22.10.2008. The death of the permit holder was intimated to the Transport Authority on 09.01.2009 as per Ext.P3 communication, as required by Section 82 of the Motor Vehicles Act 1988 (“the Act” for short). Thereupon, within the time stipulated by section 82 of the Act, the petitioner submitted Ext.P5 application for transfer of the permit to her name, accompanied by the consent of the remaining legal representatives of the _WP(C) No.27878 of 2016 2_ permit holder. According to the petitioner, Ext.P5 application was not considered by the Transport Authority on the ground that the petitioner has not produced the heir ship certificate of the permit holder. It is stated by the petitioner that she could obtain the heir ship certificate of the permit holder only during June, 2010. Thereupon, she submitted Ext.P7 application requesting the Transport Authority to consider Ext.P5 application. The vehicle in respect of which the permit was obtained has completed 15 years during the pendency of Ext.P5 application. Consequently, the petitioner submitted Ext.P8 application also for replacement of the said vehicle with vehicle bearing No.KL-08/L 3420. Exts.P5 and P8 applications were granted by the Transport Authority as per Ext.P9 order. There was, however, a rider in Ext.P9 order to the effect that the petitioner shall produce No Objection Certificate (NOC) of the financier of the vehicle sought to be substituted in the permit. While the petitioner was making earnest efforts to get NOC from the financier of the vehicle, she submitted an application on 5.9.2011 for _WP(C) No.27878 of 2016 3_ renewal of the permit also, as the term of the permit was due to expire on 19.9.2011. It is seen that by the time, the vehicle permitted to be substituted as per Ext.P9 order namely KL-08/L 3420 has also completed 15 years. Consequently, the petitioner submitted Ext.P11 application for replacement of the said vehicle with another one. The applications for renewal as also replacement referred to above have been rejected by the Transport Authority as per Ext.P12 order. The petitioner challenged Ext.P12 order in MVAA No.177/2015 before the State Transport Appellate Tribunal. In the said appeal, the petitioner sought extension of the validity of the permit by way of an interim order invoking Section 214(2) of the Act. The interim relief sought by the petitioner was rejected by the Tribunal as per Exhibit P13 order. The petitioner challenged Ext.P13 order in WP(C) No.25375/2015. It is seen that the petitioner could obtain temporary permits to operate service on the route twice, on the strength of Ext.P14 interim order passed by this Court in the said writ petition. While so, MVAA _WP(C) No.27878 of 2016 4_ No.177/2015 was dismissed by the Tribunal as per Ext.P16 judgment. Ext.P12 decision of the Transport Authority and Ext.P16 judgment of the State Transport Appellate Tribunal are under challenge in this writ petition. 3. Heard the learned counsel for the petitioner, the learned Government Pleader, as also the learned counsel for respondents 3 to 6, who are some among the operators of stage carriage service on the very same route. ## 4. Section 82 of the Act dealing with the operation of stage carriage service on the death of the permit holder, reads thus: 82. “Transfer of permit- (1) Save as provided in subsection (2), a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not, without such permission, operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. (2) Where the holder of a permit dies, the person succeeding to the possession of the vehicle covered by the permit may, for a period of three months, use the permit as if it had been granted to himself: Provided that such person has, within thirty days of the death of the holder, informed the transport authority which granted the permit of the death of the holder and of _WP(C) No.27878 of 2016_ _5_ his own intention to use the permit: Provided further that no permit shall be so used after the date on which it would have ceased to be effective without renewal in the hands of the deceased holder. (3) The transport authority may, on application made to it within three months of the death of the holder of a permit, transfer the permit to the person succeeding to the possession of the vehicles covered by the permit: Provided that the transport authority may entertain an application made after the expiry of the said period of three months if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified.” The provisions extracted above indicate beyond doubt that if the permit holder dies, the person succeeding to the possession of the vehicle covered by the permit is entitled to operate the service as if the permit had been granted to him for a period of three months, after informing the Transport Authority about the death of the permit holder and his intention to continue the operation of the service. The statute prescribes a time limit of 30 days for passing on the said information to the Transport Authority. It is also provided that such operation can be continued only for a period of three months from the date of death of the permit holder. The section further provides _WP(C) No.27878 of 2016 6_ that within the said period, the person operating the service shall prefer an application for transfer of permit to his name. In other words, the scheme of the Act is that if the permit holder dies, the service can be continued by the person succeeding to the possession of the vehicle, if he informs the Transport Authority the death of the permit holder and his intention to continue the service within 30 days and submits an application within three months for transfer of the permit to his name. Though there is no provision in the section which makes it mandatory for the Transport Authority to dispose of the application for transfer within three months, it is evident from the scheme of the Act that it is obligatory for the Transport Authority to dispose of the application for transfer of permit within the period during which the applicant is permitted to operate the service by virtue of the provisions contained in the Act, as otherwise, the same would affect the interests of the travelling public. The correctness of the decisions impugned in the writ petition has to be examined in the aforesaid background. _WP(C) No.27878 of 2016_ _7_ 5. The application submitted by the petitioner for renewal of the permit as also Ext.P11 application for replacement of the vehicle, are seen rejected by the Transport Authority as per Ext.P12 order holding that since the petitioner could not produce the vehicle permitted to be substituted as per Ext.P9 order, there was no valid permit in her name to be renewed and that therefore the application for renewal submitted by the petitioner is not maintainable. The view taken by the Transport Authority is that there cannot be a renewal in vacuum without there being a vehicle. The said order has been confirmed by the State Transport Appellate Tribunal following the decision of this Court in **Usman** v. **Regional Transport Authority** (2015(4) KLT 25). Paragraph 7 of Exhibit P16 judgment which evidences the said fact reads thus: “7. Rule 172 of the Kerala Motor Vehicles Rules, 1989 deals with the renewal of permit. Rule 170(2) states that application for renewal of permit shall be in form “PRA”. This, every application for renewal of permit shall be in form 'PRA' which is mandatory. Entry No.2 in the form is the 'registration mark of the vehicle covered by the permit'. No _WP(C) No.27878 of 2016_ _8_ application for renewal of permit would lie without the registration mark is to ensure uninterrupted operation of service on the route for which a vehicle should be at the disposal of the applicant on the date of application (See Usman vs. R.T.A , Malappuram : 2015(4) KHC 779: 2015(4) KLT 25).” The question that falls for consideration is, therefore, whether the said view of the Transport Authority, as confirmed by the Tribunal, is correct. 6. It is beyond dispute that the petitioner has informed the death of the permit holder as also her intention to continue the operation of the service to the Transport Authority within the time stipulated in Section 82 of the Act. It is also beyond dispute that the petitioner has submitted the application for transfer of the permit to her name within the time stipulated in the said Section. It is seen that the application preferred by the petitioner for transfer of the permit has not been considered by the Transport Authority until she preferred Exhibit P7 application, after producing the heir ship certificate of the permit holder. There is no requirement in the Act or in the Rules made thereunder that the applications for transfer _WP(C) No.27878 of 2016_ _9_ of permit in the said nature shall be accompanied by the heir ship certificate of the permit holder. The only requirement in the statute is that the Transport Authority shall satisfy that the applicant has succeeded to the possession of the vehicle covered by the permit. The fact that the petitioner has succeeded to the possession of the vehicle covered by the permit is not in dispute. In other words, though the application of the petitioner was in order, the same was not considered within the time contemplated by the statute. Had the application been considered within the said time, there would not have been any impediment at all in allowing the same. In other words, the delay on the part of the Transport Authority in considering the application preferred by the petitioner for transfer of permit has compelled the petitioner to submit an application for substitution of the vehicle also, for, the vehicle had completed 15 years while the application for transfer of permit was pending. It is on the said application, the Transport Authority imposed a condition that the petitioner should produce NOC of the financier of _WP(C) No.27878 of 2016 10_ the vehicle. There is no provision which enables the Transport Authority to impose such a condition while permitting replacement of the vehicle. It is beyond dispute that it is on account of the inability of the petitioner to produce the NOC of the financier of the vehicle that she could not get the transfer of permit and replacement of vehicle endorsed in the permit. But for such a condition, the petitioner would have got the replacement of the vehicle as also transfer endorsed in the permit and in that case there would not have any defect at all in the application for renewal of the permit submitted by the petitioner. In other words, had the application preferred by the petitioner for transfer of permit been considered by the Transport Authority as contemplated by the statute, the bottle neck created on account of the condition directing her to produce NOC of the vehicle, would not have arisen. As noted above, all the aforesaid bottlenecks were created on account of the delay on the part of the Transport Authority in considering the application submitted by the petitioner for transfer of the permit to _WP(C) No.27878 of 2016 11_ her name. The principle _Nemo ex alterius facto praegravari debet (_ no man ought to be burdened in consequence of the act of another) applies squarely to the facts of this case. In the circumstances, according to me, the legitimate rights of the petitioner cannot be denied, even if there is any shortfall in the application submitted by the petitioner for renewal of permit. Further, though the permit has not been issued in the name of the petitioner in respect of the vehicle permitted to be substituted pursuant to Ext.P9 order, in law, the permit stood transferred in the name of the petitioner in respect of the vehicle permitted to be substituted in the light of Ext.P9 order. The decision of this Court in **Usman** (supra) has no application to the facts of this case. In the said case, the permit holder kept the permit under suspended animation for about 19 months and later, attempted to get the said permit renewed without there being a vehicle. This Court held in the case that there cannot be any renewal in vacuum. As far as the present case is concerned, the inability of the petitioner to get the _WP(C) No.27878 of 2016_ _12_ replacement endorsed in the permit was on account of the illegal condition imposed by the Transport Authority and but for the said illegal condition, the application would have been in order with the vehicle permitted to be substituted. Above all, it is seen that the petitioner was running from pillar to post from 2008 onwards to get the permit, on the basis of which her deceased husband was operating a stage carriage service transferred to her name. As noted above, she has done all that is expected from her under the statute for getting the permit transferred to her name. During this period, she could operate the service only for a period of three months after the death of the permit holder as provided for under Section 82 the Act and during the period for which she was granted temporary permits based on interim orders passed by this Court in the writ petition preferred challenging the interim order passed by the State Transport Appellate Tribunal. In the circumstances, I am of the view that it was highly arbitrary and unfair to reject the application for renewal submitted by the petitioner on _WP(C) No.27878 of 2016 13_ the ground that the permit was not a valid one as on the date of the application for renewal. I take this view also for the reason that a person in the position of the petitioner who did all what is required under law to get the permit in the name of her deceased husband transferred to her name, could not have done anything else to get over the procedure hurdles. 7. The learned counsel for the party respondents vehemently contended that since the petitioner has not got the transfer and replacement as per Ext P9 endorsed in the permit, the permit in respect of which renewal was sought was a dead permit in all respects and that the attempt of the petitioner is to resurrect the said permit. As noted above, this is the stand taken by the authorities below as well. As I have rejected the said stand for the reasons stated above, it is not necessary to deal with this contention again. 8. In the result, the writ petition is allowed, Ext.P12 order of the Regional Transport Authority and Ext.P16 order of the State Transport Appellate Tribunal _WP(C) No.27878 of 2016 14_ are quashed. The application submitted by the petitioner for renewal of the permit as also Ext.P11 application submitted by the petitioner for replacement of the vehicle will stand allowed. The respondent concerned shall endorse the transfer of permit in favour of the petitioner as also the replacement of the vehicle requested for as per Ext.P11 in the permit so as to enable the petitioner to operate the service. The above directions shall be complied with, within one month from the date of receipt of a copy of the judgment. Sd/- **P.B.SURESH KUMAR, JUDGE** AD