P.V. Shameer Babu v. The Secretary, Regional Transport Authority, Malappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** # **WEDNESDAY, THE 29TH DAY OF FEBRUARY 2012/10TH PHALGUNA 1933** ## **WP(C).No. 29408 of 2011 (A)** **-----------------------------------** ## **PETITIONER(S): -------------------** **P.V. SHAMEER BABU, S/O. ABU, PUTHAN VALAPPIL HOUSE, KANMANAM P.O. VALANCHERY, TIRUR, MALAPPURAM DISTRICT.** ## **BY ADVS.SRI.G.PRABHAKARAN SMT.R.PADMAKUMARI** ## **RESPONDENT(S):** ## **--------------------** ## **1 THE SECRETARY,** - **REGIONAL TRANSPORT AUTHORITY, MALAPPURAM-676 505.** **BY GOVT. PLEADER SMT. ANITHA RAVINDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **svs** ## **W.P.(C). NO. 29408/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **P1: COPY OF THE PROCEEDINGS OF R. T. A. MALAPPURAM DATED 22.12.2010** - **P2: COPY OF THE RELEVANT PAGES REGISTRATION CERTIFICATE VEHICLE KL-10/Y 9022** - **P3: COPY OF THE PROCEEDINGS OF R. T. A. MALAPPURAM DATED 28.7.2011** **P4: COPY OF THE REQUEST DATED 30.9.2011.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** ## **P.A. TO JUDGE.** **svs** ## **P.N.RAVINDRAN, J.** -------------------------------------WP(C)No. 29408 of 2011 --------------------------------------Dated this the 29[th] day of February, 2012 J U D G M E N T The petitioner applied for a fresh stage carriage to operate a stage carriage service on the route Tirur - Valancheri. In the application he had offered to operate the service with stage carriage bearing registration No.KL-11/P 1272, a 28 seater vehicle. The Regional Transport Authority, Malappuram that met on 22.10.2012 considered the petitioner’s application and decided as per Ext.P1 proceedings to grant the permit subject to settlement of timings. 2. A copy of Ext.P1 proceedings was communicated to the petitioner on 24.1.2011 and thereupon, he produced the current records of stage carriage bearing registration No. KL-11/P 1272 mentioned in the application before the Secretary, Regional Transport Authority, Malappuram on 16.2.2011. Thereupon, a timing conference was held on 25.5.2011 and the time schedule was settled. Shortly after the timing conference was held, but before the permit was issued, the petitioner filed an application dated 15.6.2011 before the Secretary, Regional Transport Authority, Malappuram to issue the permit in respect of stage carriage bearing registration No.KL10/Y 9022, a 23 seater vehicle. WP(C)No. 29408 of 2011 -2- 3. The Secretary, Regional Transport Authority, Malappuram placed that application for consideration before the Regional Transport Authority, Malappuram at its meeting held on 28.7.2011. The Regional Transport Authority issued notice to the petitioner, heard him on 28.7.2011 and allowed that request by issuing Ext.P3 proceedings dated 28.7.2011. The Regional Transport Authority directed that the vehicle shall be identical and shall not be of less seating capacity, that the gross vehicle weight shall that of the offered vehicle, that the wheel base shall not be less than 306 centimetres and the number of wheels shall not be less than 6. The petitioner thereafter filed Ext.P4 representation dated 30.9.2011 pointing out that the vehicle initially offered by him (KL-11/P 1272) is not road worthy, that he therefore purchased the stage carriage bearing registration No.KL10/Y 9022 which is a 6 wheeler vehicle with a wheel base of 310 centimeters and a seating capacity of 23 passengers, that what he had sought in the petition dated 15.6.2011 is a substitution of the vehicle initially offered by him and not a replacement and therefore, the records of stage carriage bearing registration No.KL10/Y 9022 which were enclosed along with Ext.P4 may be accepted and the permit issued without delay. The instant writ petition was thereafter filed seeking the following relief: WP(C)No. 29408 of 2011 -3- “issue a writ of mandamus or any other appropriate writs, order or direction directing the Secretary Regional Transport Authority to implement Exhibit P1 and Exhibit P3 proceedings of the grated permit by issuing the permit in respect of route Tirur - Valanchery for the Stage Carriage vehicle KL 10/Y 9022 within a period of 10 days or within such other period permitted by this Honourable Court, without any conditions mentioned in Exhibit P3 proceedings”. 4. It is contended that as the petitioner has the right to change the vehicle mentioned in the application before the permit is actually issued, the stand taken by the Regional Transport Authority in Ext.P3 that the vehicle which is offered in the place of the vehicle mentioned in the application should be identical to the vehicle initially offered, is not sustainable and that such a condition cannot be stipulated. Reliance is placed on the decision of a learned Judge of this Court in **Vinod Thomas v. R.T.A.,Kottayam 1999 (2) KLJ 1092** and the decision of the Division Bench of this Court in WA No. 2266 of 1992 in support of the said contention. 5. The respondent has been served and he has entered appearance through the learned Government Pleader. The respondent has filed a counter affidavit dated 13.2.2012 wherein it is stated that the request made by the petitioner in his application dated 15.6.2011 WP(C)No. 29408 of 2011 -4- to issue the permit in respect of stage carriage bearing registration No KL10/Y 9022 was considered and allowed by the Regional Transport Authority, Malappuram subject to the condition that the vehicle which is sought to be offered in the place of the vehicle initially offered should be identical and shall not be of a lesser seating capacity or gross vehicle weight, that its wheel base shall not be less than 306 centimeters and the number of wheels shall not be less than 6. It is stated that the vehicle initially offered had a seating capacity of 28 seats while the vehicle now offered has a seating capacity of only 23 seats. It is also stated that upon receipt of Ext.P4 petition, a notice was issued to the petitioner to appear for a hearing but he did not appear. The counter affidavit proceeds to state that the Regional Transport Authority is empowered to impose such conditions while granting the permit and therefore, the relief prayed for by the petitioner cannot be granted. The petitioner has filed a reply affidavit dated 23.2.2012 wherein it is contended that in the light of the decision of this Court in **Vinod Thomas v. R.T.A., Kottayam 1999 (2) KLJ 1092,** wherein it was held that the vehicle offered can be changed before the permit is actually issued, the petitioner is entitled to have the permit issued in respect of stage carriage bearing registration No.KL10/Y 9022. WP(C)No. 29408 of 2011 -5- 6. I heard Smt.R.Padmakumari, learned counsel appearing for the petitioner and Smt. Anitha Ravindran, learned Government Pleader appearing for respondents. It is not in dispute that the petitioner had after the permit was granted by Ext.P1 proceedings produced the current records of stage carriage bearing registration No.KL-11/P 1272 within the time limit stipulated in rule 159 of the Kerala Motor Vehicles Rules. After the timing conference was held on 25.5.2011, the petitioner made a request to the effect that the permit may be issued in respect of stage carriage bearing registration No.KL10/Y 9022, more particularly described in Ext.P2 certificate of registration. The said vehicle has a seating capacity of 23 seats, a wheel base of 3100 centimeters and a gross vehicle weight of 5600 kgs. It is also a six wheeler stage carriage. These facts are not in dispute. However, the Regional Transport Authority which considered the petitioner’s application dated 15.6.2011 took the stand that the vehicle should have an identical seating capacity and consequently directed the petitioner to produce the current records of a suitable vehicle. The said decision was communicated to the petitioner on 14.9.2011. The petitioner thereupon filed Ext.P4 representation dated 30.9.2011 and produced along with it the current records of stage carriage bearing registration No.KL10/Y 9022 and requested that the permit may be WP(C)No. 29408 of 2011 -6- issued in respect of that vehicle. In that representation he pointed out that apart from the fact that the vehicle now offered has a lesser seating capacity, it satisfies the other conditions stipulated in Ext.P3. The respondent did not however issue the permit though the time schedule had been settled on 25.5.2011, but kept the application pending. It was in such circumstances that the instant writ petition was filed seeking the aforesaid relief. 7. In my opinion, on the facts placed before this Court, the petitioner is entitled to succeed. A learned single Judge of this Court in **Vinod Thomas v. R.T.A., Kottayam** (supra) held after a survey of the relevant statutory provisions that an applicant for a stage carriage permit is not bound to give the details of the vehicle in the application or before the grant of the permit. It was held that even in cases where a vehicle is offered in the application for permit, the applicant is entitled to offer another vehicle after the grant of permit but before it is actually issued. The learned single Judge also took note of the fact that a Division Bench of this Court had in W.A No.2266 of 1998 overruled the contention that a permit can be issued only in respect of a vehicle, the details of which are given in the application and therefore the refusal to issue a permit only for the reason that there was a change in the vehicle at the time of production of the current records WP(C)No. 29408 of 2011 -7- cannot be sustained. In the instant case, the petitioner produced the current records of stage carriage bearing registration No.KL-11/P 1272 on 16.2.2011 pursuant to the grant in his favour on 22.12.2010. A permit was not issued immediately thereafter in respect of that vehicle for the reason that the time schedule was not settled. A timing conference was held only three months later on 25.5.2011. Even thereafter the permit was not issued for nearly three weeks. At that stage the petitioner came forward with a request that the permit may be issued in respect of stage carriage bearing registration No.KL10/Y 9022. That request was not entertained and the petitioner was directed to produce a vehicle similar to the vehicle initially offered by him. It is evident from the facts stated above that the petitioner had produced the current records of the vehicle in time and had later offered another vehicle before the permit was actually issued, which except for the seating capacity was identical to the vehicle initially offered by him. The respondent has no case in the counter affidavit that except the seating capacity the vehicle materially differs from the vehicle initially offered by the petitioner. In such circumstances as no permit had been issued pursuant to the production of the current records of stage carriage bearing registration No.KL-11/P 1272 to the petitioner pursuant to the grant in his favour, nothing prevented the WP(C)No. 29408 of 2011 -8- petitioner from offering another vehicle before the permit was issued. Therefore, even assuming that the vehicle now offered has a lesser number of seats, as the permit had not been issued in respect of a stage carriage with a higher seating capacity, the respondent could not have declined the application for substituting the vehicle initially offered with the vehicle offered in the application dated 15.6.2011. I accordingly hold that the petitioner is entitled to succeed. I accordingly allow the writ petition and direct the respondent to issue a regular stage carriage permit pursuant to Ext.P1 proceedings in favour of the petitioner in respect of stage carriage bearing registration No.KL10/Y 9022 with the set of timings that was settled on 25.5.2011. Needful in the matter shall be done and the permit issued within two weeks from the date on which the petitioner produces a certified copy this judgment before the respondent. Sd/- **P.N.RAVINDRAN, JUDGE.** Rkc // true copy// PA to Judge