High Court of KeralaSingle Judge2021-12-15Writ petition allowed in part; Ext.P4 set aside...

K.P. Mahesh v. Regional Transport Authority, Kottayam

Case / Petition Number:WP(C) No. 26319 of 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-12-15
Court Decision / Holding: The writ petition is allowed in part. Ext.P4 is set aside, and the matter is remanded to the RTA to reconsider the request for a temporary permit in terms of Ext.P1 (the STAT order), after affording the petitioner an opportunity of hearing, and not later than two weeks from the receipt of a copy of the judgment. The court clarifies that if the substituted vehicle KL-06/F 6566 does not have a Fitness Certificate, the RTA is at liberty to reject the relief on that ground.
Final Disposition: Writ petition allowed in part; Ext.P4 set aside; matter remanded to RTA for reconsideration in light of Ext.P1 with hearing; two-week time frame; RTA may reject substituted vehicle if Fitness Certificate is absent.

Parties to the Case

Appellants / Petitioners

K.P. Mahesh

Respondents

The Regional Transport Authority, Kottayam
The Secretary, Regional Transport Authority, Kottayam

Legal Representation & Advocates

Counsels for Petitioners

• I. Dinesh Menon
• L. Rajesh Narayan

Counsels for Respondents

• Smt. Surya Binoy

Case Synopsis & Summary

This writ petition challenges Ext.P4 by the Regional Transport Authority (RTA) which denied a temporary permit to the petitioner’s stage carriage service, despite the directions issued by the State Transport Appellate Tribunal (STAT) in Ext.P1 that a temporary permit should be granted if there are no other legal impediments, and that the petitioner should pay arrears of tax (Rs. 75,000). The petitioner, K.P. Mahesh, an operator who had applied for renewal of his permit, faced Ext.P5 rejection and thus approached the STAT to secure Ext.P1. The STAT directed the RTA to grant a temporary permit if no impediments existed, and to collect the arrears. The petitioner contends that he has remitted the Rs.75,000 as ordered, yet Ext.P4 reproduces Ext.P5 and denies relief; the RTA’s reasons include that the route is serviced by a State Transport Undertaking and private operators; that the Power of Attorney holder was authorized to act only for vehicle KL-35/3802, while the relief sought is for substituting another vehicle KL-06/F 6566; and that the substituted vehicle lacks a Fitness Certificate. The petitioner argues these grounds are untenable or immaterial and that the RTA misapplied the directions. The court finds substantial force in the petitioner’s arguments, sets aside Ext.P4, and directs the RTA to reconsider the matter in light of Ext.P1, affording hearing to the petitioner within two weeks, while clarifying that absence of a Fitness Certificate for the substituted vehicle may still warrant rejection.

Provisions of Law Cited

Article 226 of the Constitution of India

Legal Doctrines & Maxims

Article 226 of the Constitution of India – Writ jurisdiction of High Courts
Mohinder Singh Gill v. Chief Election Commissioner, 1978 (1) SCC 405 – subversion of judicial orders and the role of writs; alt remedy not a bar to exercise jurisdiction when a valid order is subverted

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that Ext.P4 cannot stand because the STAT’s Ext.P1 directing a temporary permit, subject to no impediments, was in effect a binding directive. The RTA’s grounds—(i) the route is already served by STU/private operators, (ii) the Power of Attorney holder’s scope covers only vehicle KL-35/3802 while substitution to KL-06/F 6566 is sought, and (iii) the substituted vehicle lacks a Fitness Certificate—are either misapplied or unjustified. The petitioner argues that the RTA should interpret the STAT order as enabling continued operation of the petitioner’s existing service and that substitution of vehicle, with proper fitness, falls within the contemplated relief. The Power of Attorney’s scope should not defeat the substantive relief sought, and the lack of a Fitness Certificate for the substituted vehicle should be verified by the RTA, not used to deny relief altogether. The Court should set aside Ext.P4 and remand for reconsideration in light of Ext.P1, with opportunity of hearing, and expeditious action.

Contentions of Respondents

The respondents contend that Ext.P1 contains no affirmative directive to grant a temporary permit, only that the RTA may grant one if there are no impediments; Ext.P4 enumerates several impediments, including route overlap with STU/private operators, the scope of the Power of Attorney, and the lack of a Fitness Certificate for the substituted vehicle. They argue that the route context, vehicle substitution, and regulatory compliance require reconsideration by the RTA per statutory directions, and that the petition lacks a sustainable basis for direct interference without proper adjudication of the stated impediments. They further submit that the petition is not maintainable and that the RTA must decide within the statutory framework, including Fitness Certificate verification.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mohinder Singh Gill v. Chief Election Commissioner	1978 (1) SCC 405	Positive	Cited as the leading authority to justify exercising writ jurisdiction to correct subversion of a valid judicial order; the court relies on this principle to permit testing Ext.P4 in light of Ext.P1.
Dictum in 2004(3) KLT 595	2004 (3) KLT 595	Mentioned Only	Exhibit P2 refers to a dictum from this case; cited to support general proposition, but not a controlling basis for the decision in this matter.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943** ## **WP(C) NO. 26319 OF 2021** ## **PETITIONER:** K.P. MAHESH, AGED 50 YEARS MAHESH MANDIRAM, MARIYATHURUTHU P.O., KOTTAYAM, REPRESENTED BY POWER OF ATTORNEY HOLDER, T.C. THOMAS, THAKADIYELPARAMBIL HOUSE, CHANNANIKKADU P.O., KOTTAYAM. BY ADVS. I.DINESH MENON L.RAJESH NARAYAN ## **RESPONDENTS:** 1 THE REGIONAL TRANSPORT AUTHORITY, KOTTAYAM, REGIONAL TRANSPORT OFFICE, COLLECTORATE P.O., KOTTAYAM-686002. 2 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOTTAYAM, REGIONAL TRANSPORT OFFICE, COLLECTORATE P.O., KOTTAYAM-686002. ## **OTHER PRESENT:** SMT.SURYA BINOY.SR.G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(C) NO. 26319 OF 2021 2** ## **JUDGMENT** The petitioner impugns Ext.P4 order of the Regional Transport Authority (RTA) on various grounds, including that it has been issued in blatant violation of the directions of the learned State Transport Appellate Tribunal (STAT), Ernakulam, in Ext.P1 order. 2. Shri.I.Dinesh Menon, learned counsel for the petitioner, pointed out that his client - who is the operator of a stage carriage - had initially applied for renewal of his permit, but it was rejected through Ext.P5 order and he thus became constrained to challenge it before the STAT, to obtain Ext.P1 order. He showed me that the STAT directed the 1[st] respondent – RTA to grant temporary permit to his client, if there are no other legal impediments and he was also directed to pay Rs.75,000/- being the arrears of tax. He added that his client has already remitted Rs.75,000/-, as ordered in Ext.P1, but that the RTA, in spite of the specific directions in ## **WP(C) NO. 26319 OF 2021 3** Ext.P1, issued Ext.P4, which is a verbatim reproduction of Ext.P5, rejecting his client's application for temporary permit. He, therefore, prayed that Ext.P4 be set aside and the RTA be directed to issue his client a temporary permit, as ordered by the STAT in Ext.P1. 3. Smt.Surya Binoy, learned Senior Government Pleader, opposed the afore submissions of Shri.I.Dinesh Menon, saying that there were no affirmative directions in Ext.P1 order to the effect that petitioner's application for temporary permit be allowed or that it be granted. She submitted that all which the STAT has said is that the RTA will grant temporary permit, if there are no other legal impediments; but that in Ext.P4, three such have been narrated. 4. Smt.Surya Binoy pointed out that, for the first, the RTA has found that the route in question is serviced by a State Transport Undertaking, as well as private operators and that a fresh temporary permit need not be issued to the petitioner for ## **WP(C) NO. 26319 OF 2021 4** conducting service therein. 5. For the second, Smt.Surya Binoy submitted that the RTA has found that the Power of Attorney holder of the petitioner has been authorized to act only on behalf of him with respect to the vehicle bearing No.KL-35/3802, but that what has been sought for is to substitute the said vehicle by another one bearing registration No.KL-06/F 6566 and to seek a temporary permit for it. 6. Thirdly and finally, Smt.Surya Binoy submitted that the vehicle sought to be substituted does not have a Fitness Certificate and consequently, that the RTA has been incapacitated from granting any relief as sought for by the petitioner. 7. In reply, Shri.I.Dinesh Menon, learned counsel for the petitioner pointed out that first objection is untenable because when the RTA says that the route is serviced by the State Transport Undertakings and private operators, it includes his client also. He submitted that, therefore, when his client seeks a temporary permit to continue with the service which ## **WP(C) NO. 26319 OF 2021 5** he was operating earlier, an objection of such kind becomes completely untenable. 8. As far as the second objection is concerned, Shri.I. Dinesh Menon submitted that the Power of Attorney given by his client to Shri.T.C.Thomas was to act in furtherance of the application for temporary permit with respect to vehicle bearing No.KL-35/3802. He submitted that, therefore, when the said Power of Attorney makes an application for substitution of the said vehicle with another one, bearing registration No.KL-06/F 6566, it cannot be construed that he is acting on behalf of the second vehicle, but that he is only impelling a claim for temporary permit with respect to a Stage Carriage, sought to be now substituted. 9. In reply to the final objection, Shri.I. Dinesh Menon submitted that the vehicle sought to be replaced, namely bearing registration No.KL-06/F 6566, still has a valid Fitness Certificate and added that if it is not so, then he leaves it with this Court to direct the RTA not to grant the relief as ## **WP(C) NO. 26319 OF 2021 6** sought for by his client. He added that absence of such a certificate to the replaced vehicle is of no consequence in law. 10. I must say that I find substantial force in the afore submissions of Shri.I.Dinesh Menon because, the first objection of the RTA, as reflected in Ext.P4, cannot hold good, because the petitioner is a continuing operator. 11. As far as the second objection relating to the Power of Attorney of the petitioner is concerned, it makes no sense because what was sought for was a temporary permit with respect to a State Carriage, now sought to be substituted by another one because of the statutory and legal requirements. Therefore, merely because the Power Attorney does not mention the number of the vehicle sought to be substituted for the purpose of temporary permit, I cannot see how the RTA can reject the application itself. 12. Finally, as regards the Fitness Certificate of the vehicle sought to be substituted is concerned, certainly it is upto the RTA to verify whether it has **WP(C) NO. 26319 OF 2021 7** one and to reject the application for temporary permit if it is found to be lacking. However, as rightly stated by Shri.I.Dinesh Menon, absence of such a certificate for the vehicle being replaced would be of no relevance since it is not the one to be operated henceforth. 13. Since none of the afore aspects have been properly considered by the RTA, I am certain that this mater will require to be reconsidered by the said Authority within a short time frame. In the afore circumstances, I order this writ petition and set aside Ext.P4, with a consequential direction to the RTA to reconsider the matter in terms of Ext.P1 Order of the STAT; thus culminating in an appropriate order/necessary action thereon, after affording an opportunity of being heard to the petitioner, as expeditiously as is possible, but not later than two weeks from the date of receipt of a copy of this judgment. At this time, Smt.Surya Binoy, learned Senior Government Pleader, intervened to say that her ## **WP(C) NO. 26319 OF 2021 8** submissions are based only on Ext.P4 order, but that the pleadings on the same are lacking in this writ petition. She then added that, in any event of the matter, this writ petition is not maintainable because Ext.P4 is amenable to an alternative remedy under the statute. Even if I am to accept this, it makes no difference because the petitioner has impugned Ext.P4 and hence, the said document will certainly have to be tested on its contents, going by the celebrated judgment of the Hon'ble Supreme Court in _**Mohinder Singh Gill v. Chief Election Commissioner**_ **[1978 (1) SCC 405]** As regards the contentions of the learned Senior Government Pleader on the question of alternative remedy against Ext.P4 is concerned, I do not think that this Court is fettered because, as rightly argued by Shri.I.Dinesh Menon, the STAT had directed the RTA to grant temporary permit if there were no other legal impediments. Obviously, therefore, he was expected to verify the “legal impediments” and not to **WP(C) NO. 26319 OF 2021 9** have made statements in the impugned order as per his own subjective evaluation. In such circumstances, I do not think this Court is inhibited from exercising jurisdiction under Article 226 of the Constitution of India, since in the event of subversion of valid judicial orders, this Court is certainly entitled to step it and rectify the same. I, however, clarify that if the vehicle sought to be substituted, namely having bearing registration No.KL-06/F 6566, does not have a Fitness Certificate, then the RTA will be at full liberty to reject the application of the petitioner for that reason. **==> picture [318 x 14] intentionally omitted <==** **DEVAN RAMACHANDRAN JUDGE** **MC/21.12** ## **WP(C) NO. 26319 OF 2021 10** ## **APPENDIX OF WP(C) 26319/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER IN MP NO.53/2021 IN MVARP NO. 3/2021 DATED 12/02/2021. Exhibit P2 TRUE COPY OF THE DICTUM IN 2004(3) KLT 595. Exhibit P3 TRUE COPY OF THE DEMAND DRAFT DATED 23/02/2021. Exhibit P4 TRUE COPY OF THE PROCEEDINGS DATED 26/02/2021. Exhibit P5 TRUE COPY OF THE PROCEEDINGS DATED 04/12/2020. - Exhibit P6 TRUE COPY OF THE JUDGMENT IN WPC NO. 20338/2020 DATED 29/09/2020. Exhibit P7 TRUE COPY OF THE RC BOOK OF KL 06 F 6466. Exhibit P8 TRUE COPY OF THE NOTICE DATED 27/10/2021. Exhibit P9 TRUE COPY OF THE DEMAND DRAFT DATED 17/11/2021. Exhibit P10 TRUE COPY OF THE REQUEST DATED 17/11/2021.