Hameed Kurikkal v. Secretary, Regional Transport Authority, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939** **WP(C).No. 16064 of 2017 (G) ---------------------------** **PETITIONER:** ## **-----------** **HAMEED KURIKKAL, S/O.MOHAMMED KURIKKAL, MANCHERI HOUSE, VETTIKKATTIRI P.O., VALLUVANGAD, PANDIKKAD, MALAPPURAM, REPRESENTED BY POWER OF ATTORNEY HOLDER, MOIDEEN, S/O.MARIYUMMA, KADUVAPPALI HOUSE, CHEMBRASSERY P.O.** ## **BY ADV. SRI.O.D.SIVADAS** **RESPONDENT:** **-----------** **THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, PALAKKAD - 678 001.** ## **BY SENIOR GOVERNMENT PLEADER SMT.C.S.SHEEJA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 16064 of 2017 (G)** ## **----------------------------** ## **APPENDIX** |**PETITIONERS' **|**EXHIBITS**<br>**:**| |---|---| |**EXHIBIT P1.**|<br>**COPY OF THE PERMIT OF THE PETITIONER.**| |**EXHIBIT P2.**|<br>**COPY OF THE ORDER DATED 07.02.2012 ISSUED BY THE**| ||**REGIONAL TRANSPORT AUTHORITY.**| |**EXHIBIT P3.**|<br>**COPY OF THE ENDORSEMENT MADE IN THE PERMIT**| ||**PURSUANT TO THE ORDER OF THE STAT IN M.P**| ||**NO.376/2012 IN MVAA NO.120/2012.**| |**EXHIBIT P4.**|<br>**COPY OF THE JUDGMENT IN MVAA NO.120/2012 OF THE**| ||**STAT, ERNAKULAM.**| |**EXHIBIT P5.**|<br>**COPY OF THE APPLICATION FOR REPLACEMENT**| ||**SUBMITTED BY THE PETITIONER.**| |**EXHIBIT P6.**|<br>**COPY OF THE JUDGMENT DATED 07.03.2017 IN**| ||**WPC 6031/2017.**| |**EXHIBIT P7.**|<br>**COPY OF THE TEMPORARY PERMIT ISSUED TO STAGE**| ||**CARRIAGE NO.**| |**EXHIBIT P8.**|<br>**COPY OF THE JUDGMENT DATED 29.03.2017 IN**| ||**WPC NO.9012 OF 2017.**| |**RESPONDENTS' **|**EXHIBITS**<br>**:**<br>**NIL.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| |**mbr/**|| ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.16064 of 2017 ----------------------------------------------Dated this the 22[nd] day of June, 2017** ## **JUDGMENT** This writ petition is filed by the petitioner seeking a direction to the respondent to issue a permit less certificate to stage carriage bearing No.KL 10 AC/2993, without affecting the right to get renewal of permit. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is an existing stage carriage operator on the route Nenmara - Vazhikkadavu in respect of vehicle bearing No.KL 10 AC/2993, evident from Ext.P1. Petitioner submitted an application for renewal/extension of the route as well as conversion of service as Fast Passenger. As per the extension, the route length became 186 Kms. and thereby as per the relevant rules, the class of service has to be changed as Fast Passenger. In the above background, the application for conversion of service as LSOS was filed. The said application for renewal/extension and conversion was rejected by a composite order, Ext.P2, dated 07.02.2012. The application for renewal of permit was rejected by the Regional 2 **W.P.(C) No.16064 of 2017** Transport Authority, against which, petitioner preferred MVAA No.120 of 2012 before the State Transport Appellate Tribunal, and the Tribunal as per order in M.P.No.376 of 2012 dated 06.06.2012, issued interim direction, which was endorsed in the permit, evident from Ext.P3. The said appeal was allowed by the Tribunal, as per Ext.P4 judgment. 3. According to the petitioner, since the vehicle is not fit for operation, petitioner produced another vehicle bearing No.KL 58 C/6021, and sought a direction to consider the application for replacement, evident from Ext.P5. However, the respondent has not entertained the application for replacement, and thereby petitioner approached this Court by filing W.P.(C) No.6031 of 2017, whereby a direction was issued to the authority to finalize the application in accordance with the directions issued by the Tribunal as per Ext.P4, evident from Ext.P6. Pursuant to the same, the authority granted temporary permit to the incoming vehicle, i.e. stage carriage No.KL 58 C/6021, which was valid till 29.05.2017, evident from Ext.P7. 3 **W.P.(C) No.16064 of 2017** 4. The submission of the petitioner is that, now the petitioner is owning two stage carriages. Since one vehicle is not fit for operation, he has submitted application for replacement, and the respondent issued temporary permit to the incoming vehicle. As per law, the replacement can be granted only after getting renewal of permit. Since the application for renewal of permit has not finally disposed of, petitioner is not in a position to get the replacement. 5. That apart, it is contended that, since the petitioner has already submitted application for replacement and the incoming vehicle is operating on the route in question on the basis of temporary permit issued by the Secretary, Regional Transport Authority, it is not necessary to retain the old vehicle in question. It was under the said circumstances, petitioner has requested the respondent to issue permit less certificate without affecting the right of renewal of permit, and as per law, only after grant of renewal, petitioner needs to produce the records of the vehicle. According to the petitioner, in the instant case, petitioner has already produced records of the incoming vehicle and operating on the route on the basis of temporary permit. Therefore, there is no legal impediment in 4 **W.P.(C) No.16064 of 2017** issuing permit less certificate to stage carriage No.KL 10 AC/2993, without disturbing the right of the petitioner to get renewal of the permit and replacement after passing orders in the application for renewal. 6. According to the petitioner, the very same question was considered by this Court in Ext.P8 judgment in W.P.(C) No.9012 of 2017, and pressed into service the principles of law laid down thereunder in order to issue direction to the respondent to issue permit less certificate to the petitioner. 7. Heard learned counsel for the petitioner and the learned Senior Government Pleader and perused the documents on record and the pleadings put forth by the petitioner. 8. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. However, learned Senior Government Pleader submitted that, since the replacement application is pending consideration, the issue with respect to issuance of permit less certificate does not arise, and without allowing the application for replacement of the vehicle, to which a permit is issued, a permit less certificate cannot be issued. Therefore, it is the contention of **W.P.(C) No.16064 of 2017** 5 the learned Senior Government Pleader that the petitioner is still the holder of the permit of the outgoing vehicle viz., KL-10 AC/2993 kept under suspended animation, since the replacement application is pending consideration. 9. However, learned counsel for the petitioner placed heavy reliance on Ext.P8 judgment rendered by this Court in W.P.(C) No.9012 of 2007 dated 29.03.2007. From paragraph 3 of the said judgment, what I could gather is that, the petitioner therein was operating on the strength of temporary permits on the route, using the new vehicle. Therein, the court was of the opinion that the said petitioner need not retain the old vehicle for the purpose of getting renewal of the permit and thereafter replace it with new vehicle. Therefore, since there is no permit, the petitioner can dispose of his old vehicle, as he pleases. It was further held that, if finally, the petitioner succeeds in getting renewal of the permit, at the relevant time he should be permitted to produce a suitable vehicle, for operating on the route on the strength of that permit. 10. However, in my considered opinion, since the application for replacement of the outgoing vehicle is still 6 **W.P.(C) No.16064 of 2017** under the consideration of the statutory authority, and the application for renewal of permit is pending, it cannot be said that there is no permit for the outgoing vehicle, as it is kept under suspended animation pending consideration of replacement application. The renewal of permit of the outgoing vehicle is still under consideration, and unless and until that permit is declined to be renewed, it cannot be said that the outgoing vehicle is without a permit, even though the same is inactive in the sense, of its operation. 11. In that view of the matter, as pointed out by the learned Government Pleader, the judgment of this Court in _**'Usman v. Regional Transport Authority**_ ' [2015 (4) KLT 25] is a wholesome answer to the issue. The crux of the issue therefore is, in order to endorse the permit, records of incoming vehicle is required, which can be done only after allowing the replacement application. At the same time, mere pendency of an application for renewal of the permit does not make the permit alive essential for replacing the vehicle on the route, as held in ' _**Usman**_ ' ( _supra_ ). Which thus means, no permit shall be so used after the date of its validity or seizure. Rule 172(3) of the Kerala Motor Vehicles Rules, 1989, makes **W.P.(C) No.16064 of 2017** 7 the picture more clearer, which read thus: _“_ _**172. Renewal of permits.** -- (1) x x x x x x x x x x x 2) x x x x x x x x (3) Production of permit.--(a) The Transport Authority sanctioning an application for renewal of a permit shall call upon the permit holder to produce the Registration Certificate of the vehicle and endorse the renewal in the permit and return them to the holder. The Transport Authority may revoke its sanction of the application for renewal if the permit holder fails to produce the documents aforesaid within one month from the date of despatch of the order requiring the production of the records:_ _Provided that the Transport Authority may, if satisfied on an application made to it in writing by the permit holder within the period of one month aforesaid that there are sufficient grounds, grant an extension or extensions of time not exceeding four months in the aggregate for the production of the records._ _(b) The Transport Authority may delegate the powers conferred on it by clause (a) to its Secretary in cases where the Secretary has sanctioned the application for renewal of the permit.”_ The summary of discussion made above persuades me to think that, the consideration in ' _**Usman**_ ' ( _supra_ ), with reference to the provisions of law involved in the subject matter distinguishes it drastically from Ext.P8 judgment, and therefore, I am inclined to follow the proposition of law laid down in ' _**Usman**_ ' ( _supra_ ). 12. Therefore, in my considered opinion, the reliefs sought for by the petitioner in this writ petition to issue a 8 ## **W.P.(C) No.16064 of 2017** permit less certificate to the outgoing vehicle cannot be sustained at this point of time. However, I make it clear that, if and when the permit is renewed, and replacement is allowed by the statutory authority, petitioner is entitled to get a permit less certificate. 13. Therefore, the writ petition is dismissed, however, leaving open the liberty of the petitioner to seek issuance of permit less certificate after securing permission for replacement of the vehicle, and the consequent transfer of permit to the incoming vehicle. The writ petition is dismissed with the above observation. Sd/- **SHAJI P. CHALY JUDGE** St/24.06.2017