Regional Transport Authority Ernakulam v. Jacob N.L.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 6TH DAY OF AUGUST 2018 / 15TH SRAVANA, 1940** **OP(C).No. 1792 of 2018** ## **AGAINST THE ORDER/JUDGMENT IN MVAA 105/2018 of STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM DATED 25-05-2018** ## **PETITIONER(S)** - **1 THE REGIONAL TRANSPORT AUTHORITY** **ERNAKULAM, REP. BY ITS SECRETARY.** - **2 THE SECRETARY,** **REGIONAL TRANSPORT AUTHORITY, ERNAKULAM.** ## **BY SENIOR GOVERNMENT PLEADER SRI. P. SANTHOSH KUMAR** ## **RESPONDENT(S):** **JACOB.N.L NELLIKKAPILLY HOUSE, PALLURUTHY, COCHIN.** **R1 BY ADV. SRI.K.V.GOPINATHAN NAIR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 1792 of 2018 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.C1/17605/18/E DATED 17.03.2018.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THE STATE TRANSPORT APPELLATE TRIBUNAL IN MVAA NO.105/2018.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1(A) A TRUE COPY OF THE TEMPORARY PERMIT ISSUED TO THE PETITIONER FOR HIS LATER MODEL VEHICLE KL-07/AR 8172 VALID FROM 5.2.2018** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - O.P.(C)No.1792 of 2018** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of August, 2018** ## **J U D G M E N T** In this case, the Regional Transport Authority, Ernakulam is challenging the judgment of the State Transport Appellate Tribunal, Ernakulam rendered on their order in M.V.A.A.No.105/2018. 2. The facts in a nutshell is that the respondent is a vehicle owner having a regular permit for stage carriage to operate service on the route Fort Kochi – EdaKochi - Willingdon Island and the said permit is valid till 8.10.2018. It is the case that the vehicle shown in the permit was an old one and will attain the age of 15 years as on 9.1.2018. Thus, naturally he garaged the vehicle and the vehicle was not plying. Thereafter the permit cancelled. 3. The case of the respondent is that a G-Form (intimation to the authorities regarding non-operation of the vehicle) was given with effect from 1.1.2018. Thereafter on 5.2.2018 he started to commence operation with another vehicle as allowed by the authorities. Thus what happened is 2 O.P.(C)No.1792 of 2018 that on 17.3.2018 the respondent's application for replacement of the vehicle was rejected as well as the permit was cancelled. 4. The respondent herein moved before the State Transport Appellate Tribunal, Ernakulam by filing M.V.A.A.No.105/2018, wherein the impugned judgment passed and the order by which the permit was cancelled was set aside and further the second respondent therein i.e. the Secretary, RTA, Ernakulam was directed to grant replacement, if there is no other legal impediment, in accordance with law within one month from the date of receipt of the copy of the judgment. 5. When the original petition came up for hearing the learned Government Pleader appearing for the petitioners submitted before this court that the Tribunal relied upon a decision of this court in **Aysha v. R.T.A., Kasaragode [2006 KHC 1033]** . But there is a fact that Rule 152 of the Kerala Motor Vehicles Rules, 1989 was not considered by the Tribunal. Under such circumstances the O.P.(C)No.1792 of 2018 3 ## impugned judgment was happened to be passed. 6. I heard the learned counsel appearing for the respondent. The learned counsel for the respondent submitted that even filing of an appeal like this by the RTA is not a good practice. It is a quasi-judicial body and the filing of original petition was considered and deprecated by a Division Bench of this court in W.A.Nos.337 and 423/1981 by judgment dated 18.7.1994. It is also the submission that even though there is Rule 152 of the Kerala Motor Vehicles Rules, it mandates a notice. Learned counsel appearing for the respondent fairly conceded that while pronouncing the judgment, the Tribunal not considered Rule 152 of the Kerala Motor Vehicles Rules. 7. After hearing the learned counsel, I perused the judgment. Surely the court below relied upon Aysha's case (supra). It was also a case where the cancellation of the permit by the RTA was challenged. There the court considered the validity of the period. The cancellation was prior to the same. Considering the similarity of facts, surely, 4 ## O.P.(C)No.1792 of 2018 the court below cannot be blamed with for passing the impugned order. But at the very same time it is to be remembered that Rule 152 of the Rules is therein which can be used by the authority in appropriate cases. There cannot be a doubt or dispute regarding the non-issuance of notice in this matter. Rule 152 states as follows: ## **152. Failure to use transport vehicle** .- It shall be a condition of the permit of every transport vehicle (other than a private service vehicle permit) that the vehicle shall be so maintained as to be available for the service for which the permit was granted, for the entire period of currency of the permit and that the permit is liable to be suspended or cancelled, **after due notice** to the permit holder, If the vehicle has not been used for the purpose for which the permit was granted, for any day in the case of a stage carriage unless a reserve bus duly authorized in this behalf has conducted substitute service in the place of the route-bus which defaulted service, and for a continuous period of fifteen days or more in the case of other transport vehicles, during the period for which the permit authorizes the use of the vehicle on the road, unless the State or Regional Transport Authority is satisfied that the permit O.P.(C)No.1792 of 2018 5 holder was prevented by sufficient cause from running the service or that the permit holder had obtained the previous permission of the State or Regional Transport Authority to suspend the service for such period during which the vehicle was not operated. 8. Surely, in this case the petitioners got a case that the non-operation of the vehicle was informed to the authority in the month of January,2018 itself. It is also the case of the respondent that with the knowledge of the RTA, a substitute vehicle was also plying till the cancellation. But for Rule 152 of the Rules, the finding or order regarding the cancellation of the permit sustainable. But at the very same time, Rule 152 of the Kerala Motor Vehicles Rules is not considered by the Tribunal below. Under such circumstances, the impugned judgment by the appellate authority as well as the impugned order of the Tribunal are hereby set aside for the reasons highlighted above. 9. Thus, what now remains is that the application for replacement is before the RTA. Thus, the RTA is hereby O.P.(C)No.1792 of 2018 6 directed to consider the said application on merit, keeping in mind that till substitute vehicle was allegedly allowed to be plied, no action was taken, even though the communication was allegedly given as back as on 1.1.2018. Secondly it should be further considered that whether a belated notice is warranted under Rule 152 of the Rules in this particular case. Thus, it is ordered that anyway the application shall be disposed of on or before 8.10.2018. Till 8.10.2018 or till the disposal of the application, which ever is earlier, the status quo will continue. Sd/- **K.P. JYOTHINDRANATH JUDGE** shg/