S.A. Wahab v. Regional Transport Authority, Kasaragod; State Transport Appellate Tribunal, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR** **FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930** **WP(C).No. 31586 of 2004(I)** **----------------------------------------** **PETITIONER(S):** **--------------------------** **S.A.WAHAB, MEHBOOB MOTOR SERVICE, M.G.ROAD, KASARAGOD.** **BY ADV. SRI.P.V.BABY** **RESPONDENT(S):** - **-----------------------------** **1. REGIONAL TRANSPORT AUTHORITY, KASARAGOD, REPRESENTED BY ITS SECRETARY.** **2. SECRETARY, REGIONAL TRANSPORT AUTHORITY, KASARAGOD.** **3. STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM.** **GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL FOR R1 TO 3** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.31586/2004 I** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF PROCEEDINGS DTD. 27/11/2003 OF THE 1ST RESPONDENT. EXT.P2: COPY OF APPEAL MEMORANDUM (MVAA 1136/2003) DTD. 26/12/2003 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH ANNEXURES AT TO A11. EXT.P3: COPY OF JUDGMENT DTD. 15/09/2004 IN MVAA NO.1136/2003 OF THE 3RD RESPONDENT TRIBUNAL.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.A.TO JUDGE** _Kss_ ## **K.BALAKRISHNAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.31586 of 2004 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 28[th] November, 2008 ## **JUDGMENT** The petitioner was a stage carriage operator. He was having a regular permit on the route Kannur-Thalappady for conducting express service. He stopped operation of the service in 1992. The vehicle covered by the permit was on G-form. Since the validity of the permit was going to expire on 21.1.1996, the petitioner submitted application for renewal of that permit on 8.1.1996. Though the petitioner repeatedly represented, the renewal application was not considered. On 20.10.2000, the R.T.O., Kasaragod moved the Kannur R.T.O. for concurrence for renewal of the permit from 21.1.1996. Since the permit even if renewed would have expired on 21.1.2001, he again applied for renewal of the permit from 24.1.2001. It was followed by a representation for early disposal of his application for renewal and also by another representation dated 31.5.2002 praying for renewal as well as permission for replacement of vehicle. Finally, a lawyer notice was caused to be sent by the petitioner on 14.11.2003. Thereupon he was served with Annexure A11 reply produced along with Ext.P2 in this Writ Petition. The said communication stated that the R.T.A.Kasargod considered the W.P.C.No.31586/04 - 2 - application of the petitioner and rejected it by Ext.P1 order. The petitioner challenged that order before the S.T.A.T. by filing Ext.P2 appeal. The appeal was dismissed by Ext.P3 order. Hence this Writ Petition challenging Exts.P1 and P3. 2. The petitioner points out that the main ground taken by him in the appeal memorandum was ground C which reads as follows: “By Annex.A5 the 2[nd] respondent sought for the concurrence of the Secretary, Regional Transport Authority, Kannur. As per the impugned order and in Annex.A11 the statement that the concurrence rejection order was communicated to the appellant is totally wrong and appellant has not so far received any such proceedings. Only on getting proceedings copy the appellant will be able to file appeal before the Appellate Authority. Therefore the said reasoning adopted by the respondents in the impugned proceedings as well as Annex.A11 are totally wrong and not sustainable. As regards statement contained in the impugned proceedings that the appellant is not a fleet operator hence express permit cannot be renewed is also legally unsustainable W.P.C.No.31586/04 - 3 - since S.R.O.No.118/1999 was quashed in O.P.No.7211/1999 by the Hon'ble High Court of Kerala. Therefore it could be seen that all the three reasons mentioned by the 1[st] respondent in the impugned proceedings for rejection of the renewal application sought for are legally unsustainable and therefore the impugned order rendered by the 1[st] respondent is liable to be set aside by this Hon'ble Appellate Authority.” The petitioner submits that the above contentions were not noted or considered by the S.T.A.T. in Ext.P3. So it is vitiated and liable to be set aside. 3. The S.T.A.T. dismissed the appeal by Ext.P3 for the following reasons: “5. The point: Admittedly, the petitioner was operating service on the said route up to December, 1992. Since 1.12.1992 he was not operating service even though there was permit to operate vehicle up to 24.1.1996. While the vehicle was not operating on the route he applied for the renewal. In the order of rejection it is stated that the vehicle KLC 3276, which was having W.P.C.No.31586/04 - 4 - permit, a 1968 model vehicle and the vehicle offered at present viz. KL 14/A 7599 are not eligible for operation as an express service as per rule 260A. In the appeal memorandum it is conceded that the vehicles are not fit for service as an express service. He offered to produce suitable vehicle after the grant if time is granted. But it is relevant to note that renewal stands at the same footing grant with as far as the vehicle is concerned. For making a grant a ready vehicle must be there. Of course as per rule 159(2) the certificate of registration need be produced only after the grant or within such extended period exceeding within 3 months in the aggregate. In Davis v. RTA, Trichur, 1988 (2) KLT 1051, it has been held that before granting a permit the applicant is bound to furnish details of the vehicle to be offered for regular permit. In AIR 1999 Kerala 207, (Natarajan's case) it has been held that ready vehicle must be there at the time of consideration of the application. The ready vehicle is a vehicle which is fit to be operated for the permit claimed for. Hence it is clear that on the date of consideration a W.P.C.No.31586/04 - 5 - ready vehicle fit to operate as express service must be there. But in the appeal memo itself shows that no such vehicle was there. Hence the order of denial is valid and proper. 6. There is another ground too. It is specifically stated that sister authority had refused concurrence for renewal and refusal was communicated with the appellant on 24.2.2001. The order of refusal of concurrence has not been challenged before the sister authority(Sic-STAT). Since concurrence was refused there is no scope to grant permit subject to counter signature. For the above reasons the order of rejection entered into by the RTA is correct and it is liable to be upheld.” 4. Though the first point taken in paragraph 5 of Ext.P3 quoted above that the petitioner did not have a ready vehicle may not be valid, I feel that the second ground taken is sufficient to dismiss the appeal. The petitioner contend that the order rejecting the concurrence was never served on him. But it is only a self serving assertion. Based on that, the order of the statutory authorities cannot be interfered with. The dispute regarding the above question of fact W.P.C.No.31586/04 - 6 - will go against the petitioner. Further asserting that the order rejecting the concurrence has been served on the petitioner, respondents 1 and 2 have filed a statement in this Writ Petition. The petitioner has not chosen to file any reply to that. In view of the above position, the Writ Petition fails and it is dismissed. srd ## **K.BALAKRISHNAN NAIR, JUDGE**