Saidalavi Haji v. Regional Transport Authority, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** ## **WP(C).No.14245 of 2019** ## **PETITIONER:** **SAIDALAVI HAJI, KODASSERI HOUSE, KONDOTTY.P.O, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.V.GOPINATHAN NAIR** ## **RESPONDENTS:** - **1 THE REGIONAL TRANSPORT AUTHORITY, PALAKKAD, REPRESENTED BY ITS SECRETARY-679101.** - **2 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, PALAKKAD-679101.** ## **BY ADV. GOVERNMENT PLEADER SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)14245 OF 2019 ## **JUDGMENT** The petitioner's son Sri.Haris K. was the holder of Ext.P1 regular permit on the route Malampuzha-Kozhikode, as limited stop fast passenger, which was valid up to 24.11.2015. Ext.P2 is the application for renewal of that permit submitted by the permit holder, to continue the service as Limited Stop Ordinary Service, in the light of G.O.(MS) No.45/2015 dated 23.08.2015. The 1[st] respondent Regional Transport Authority considered Ext.P2 application for renewal, on 21.01.2017 and adjourned the matter directing the 2[nd] respondent to seek concurrence of the sister authorities for renewal of Ext.P1 permit. Ext.P3 is the proceedings issued by the 1[st] respondent dated 21.01.2017 in this regard. After the issuance of Ext.P3, the permit holder died. His legal heirs obtained Ext.P4 legal heirship certificate dated 13.03.2019 and produced the same along with Ext.P5 affidavit, giving their consent in transferring Ext.P1 permit in favour of the petitioner. On the strength of Exts.P4 and P5, the petitioner submitted Ext.P6 application dated 07.05.2019 under the provisions of sub-section (2) of Section 82 of the Motor Vehicles Act, seeking transfer of 3 WP(C)14245 OF 2019 permit. Ext.P7 is an application for replacement of the vehicle covered by Ext.P1 permit, with another stage carriage bearing registration No.KL-11/AM-650. The petitioner has also submitted Ext.P8 application for temporary permit, in order to operate the said service, pending orders on Ext.P2 application for renewal. Now, the petitioner is before this Court in this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to consider and allow Ext.P2 application for renewal of Ext.P1 permit, as also Ext.P6 application for transfer of permit and Ext.P7 application for replacement of the vehicle, in the light of Exts.P3 to P5, by accepting the required fee from the petitioner, forthwith; and a writ of mandamus commanding the 2[nd] respondent to issue temporary permit on the route Malampuzha-Kozhikode for stage carriage bearing registration No.KL-11/AM-650 by considering Ext.P8 application, pending orders on Ext.P2 renewal application, forthwith. 2. On 23.05.2019, when this writ petition came up for admission, the learned counsel for the petitioner was directed to place on record a copy of the certificate of registration of the incoming vehicle referred to in Ext.P7. The learned 4 WP(C)14245 OF 2019 ## Government Pleader was directed to get instructions. 3. On 03.06.2019, when this writ petition came up for consideration, the learned counsel for the petitioner submitted that incoming vehicle bearing registration No.KL-11/AM-650 is a 2012 model vehicle. A copy of the certificate of registration of that vehicle is placed on record as Ext.P10, along with I.A.No.1 of 2019. 4. A statement has been filed by the 1[st] respondent, opposing the reliefs sought for in this writ petition. In paragraph 11 of the said statement, the 1[st] respondent has stated that concurrence of the sister authorities, i.e., Regional Transport Authority, Kozhikode and Regional Transport Authority, Malappuram, were received on 24.08.2017 and 27.10.2017 respectively. The 1[st] respondent has also raised various contentions as to the maintainability of the applications made by the petitioner for renewal, replacement, etc. 5. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents. 6. In **Usman v. Regional Transport Authority, Malappuram (2015 (4) KLT 25)** , this Court held that only a 5 WP(C)14245 OF 2019 holder of permit can apply for the permission of the Regional Transport Authority for replacement of the vehicle covered by the permit of another vehicle of the same nature. In the said judgment, this Court held further that the mere pendency of an application for renewal of the permit does not make the permit alive essential for replacing the vehicle on the route. Paragraphs 5 and 6 of the said judgment read thus; “5. There is yet another reason as to why the impugned decision of the Regional Transport Authority requires to be set at naught about which I shall delineate hereunder. The replacement of the vehicle covered by the permit by another vehicle of the same nature is governed by Section 83 of the Motor Vehicles Act, 1988 ('the Act' for short) which reads as follows: “83. Replacement of vehicle - The holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other vehicle of the same nature.” (emphasis supplied) Thus only a holder of permit can apply for the permission of the Regional Transport Authority which granted the permit to replace the vehicle covered by the permit by another vehicle of the same nature. The validity of the regular permit enjoyed by the second respondent expired on 15.04.2015 and he ceased to be a holder of a regular permit thereafter. It was on 21.02.2015 did the second respondent apply for replacement of the vehicle at a time 6 WP(C)14245 OF 2019 when the application for renewal of the permit was pending. The holding of a permit or a renewed permit is a sine qua non to enable an applicant to apply for permission to replace the vehicle. But the applications for renewal of the permit and replacement of the vehicle have been dealt with in one breath by the Regional Transport Authority which ought not to have been done. That only a holder of permit can apply for permission of the Regional Transport Authority to replace the vehicle covered by the permit by another is overlooked. 6. The second respondent has a case that no time limit was specified to replace the vehicle on the route while issuing the clearance certificate on 04.10.2013 and that his permit was not revoked. It is also stated that the delay in producing the current records of the replaced vehicle KL-53 H/1186 stands condoned by the payment of Rs.10,000/- to the Road Safety Fund. The second respondent points out that the said sum was deposited pursuant to Ext.R2(b) judgment dated 17.04.2015 in WP(C) No. 12384/2015 by this court. The alleged condonation of delay in producing the current records of the vehicle sought to be replaced does not give life to the expired permit. Moreover the mere pendency of an application for renewal of the permit does not make the permit alive essential for replacing the vehicle on the route. The second respondent has taken the Regional Transport Authority for a ride by producing judgments in the successive writ petitions filed by him which do not advance his case. The wholesome principle that a renewal of permit tantamounts to a fresh grant is of no avail since the parameters for the same are slightly 7 WP(C)14245 OF 2019 ## different.” 7. As per the statement filed by the 1[st] respondent, the concurrence of the sister authorities have already been received on 24.08.2017 and 27.10.2017 respectively. Now, Ext.P2 application for renewal of Ext.P1 regular permit, along with Ext.P6 application for transfer of permit and Ext.P7 application for replacement are pending consideration before the respondents. 8. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i) if Exts.P2 and P6 applications made by the petitioner are in order and the petitioner has remitted the requisite fee, the 2[nd] respondent shall place it before the 1[st] respondent Regional Transport Authority for consideration, since the concurrence of the sister authorities have already been obtained on 24.08.2017 and 27.10.2017 respectively. (ii) Thereafter, the 1[st] respondent shall consider those applications and pass appropriate orders thereon, with notice to the petitioner and other legal 8 WP(C)14245 OF 2019 heirs of the deceased permit holder and after affording them an opportunity of being heard, if possible, in the next meeting of the Regional Transport Authority. (iii) Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. (iv) Based on the orders to be passed on Exts.P2 and P6 applications, Ext.P7 application for replacement shall be considered by the 2[nd] respondent, who is the Secretary of the Regional Transport Authority. (v) The competent among the respondents shall consider Ext.P8 application made by the petitioner for temporary permit, in order to operate the service pending orders on Ext.P2 renewal application, and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and other legal heirs of the deceased permit holder and after affording them an opportunity of being heard. It is made clear that this Court has not expressed anything as to the maintainability of Exts.P2, P6 and P8 9 WP(C)14245 OF 2019 applications and it is for the competent Authority to take appropriate decision, strictly in accordance with law. The contentions raised in the statement filed by the 1[st] respondent are left open. Sd/- **ANIL K. NARENDRAN JUDGE** ## **yd** 10 WP(C)14245 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGULAR PERMIT** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED FOR RENEWAL OF PERMIT.** - **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 21.1.2017** **EXHIBIT P4 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE DATED 13.3.2019** - **EXHIBIT P5 TRU COPY OF THE AFFIDAVIT OF OTHER LEGAL HEIRS** **EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR TRANSFER OF PERMIT DATED 7.5.2019** - **EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR REPLACEMENT** - **EXHIBIT P8 TRUE COPY OF THE APPLICATION FOR TEMPORARY PERMIT** - **EXHIBIT P9 TRUE COPY OF THE FORWARDING LETTER SUBMITTED ALONGWITH THE DOCUMENTS DATED 16.5.2019.** **EXHIBIT P10 TRUE COPY OF THE REGISTRATION CERTIFICATE OF KL-11/AM-650.** ## **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**