Shaji, S/o. Jacob v. Secretary, Regional Transport Authority cum Regional Transport Officer, Alappuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940** **WP(C).No. 39996 of 2018** ## **PETITIONER:** **SHAJI, S/O. JACOB, 248/13, PALLIPARAMBIL HOUSE, PATHIRAPPALLY, ALAPPUZHA** **BY ADVS. SRI.G.PRABHAKARAN SMT.R.PADMAKUMARI** ## **RESPONDENT:** **THE SECRETARY,** **REGIONAL TRANSPORT AUTHORITY CUM REGIONAL TRANSPORT OFFICER, ALAPPUZHA-688 001** **SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)39996 OF 2018 ## **JUDGMENT** The petitioner, who is a regular stage carriage operator on the route Kalavoor-Alappuzha Railway Station in respect of the stage carriage bearing registration No.KL-3/J-1141, with Ext.P1 regular permit, which is valid up to 08.07.2022, has submitted Ext.P4 application for replacement dated 08.11.2018, which has been returned, vide Ext.P7 communication dated 16.11.2018 of the respondent, the Secretary of the Regional Transport Authority, Alappuzha. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondent to accept Ext.P4 application for replacement of stage carriage bearing registration No.KL-3/J1141 on the route Kalavoor-Alappuzha Railway Station and also the fee remitted vide Ext.P5 Bank's cheque dated 13.11.2018 and grant replacement of the vehicle or process that application by placing Ext.P4 application for consideration before the Regional Transport Authority, by giving an opportunity for hearing. The petitioner has also sought for a writ of mandamus commanding the respondent to issue consequential orders in exercise of the powers under Section WP(C)39996 OF 2018 3 68 (1) of the Motor Vehicles Act, enhancing the life span of stage carriages from 15 to 20 years from the date of its registration, thereby effectuating Ext.P3 draft rules and its consequential orders. 2. On 10.12.2018, when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions. Thereafter, on 19.12.2018 and 15.01.2019, the writ petition was adjourned at the instance of the learned counsel for the petitioner. 3. On 25.01.2019, when this writ petition came up for consideration, the learned Senior Government Pleader pointed out that in Ext.P4 application made by the petitioner for replacement, the registration particulars of the incoming vehicle is not mentioned. The learned counsel for the petitioner sought adjournment and accordingly, the matter was adjourned to 30.01.2019 and thereafter to this date. 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondent. 5. As can be seen from Ext.P7 communication, Ext.P4 application made by the petitioner for replacement of stage WP(C)39996 OF 2018 4 carriage bearing registration No.KL-03/J-1141 attached to Ext.P1 regular permit, has been returned as the particulars of the incoming vehicle is not furnished in Ext.P4 application. During the course of arguments, the learned counsel for the petitioner would submit that the petitioner is expecting Government Order for enhancing the life span of stage carriage from 15 to 20 years and it is for that reason that the particulars of the incoming vehicle was not mentioned in Ext.P4. 6. Section 83 of the Motor Vehicles Act, 1988 deals with replacement of vehicle. As per Section 83, 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. The procedure for replacement of vehicle is contemplated under Rule 174 of the Kerala Motor Vehicle Rules, 1989, which reads thus; “174. Permit-Replacement of vehicles (1) If the holder of a permit desires at any time to replace a vehicle covered by the permit with another vehicle, he shall forward the permit and apply in the form “P.V.A” with the fee prescribed in Rule 180 to the Transport Authority which granted the permit stating the reasons for the proposed replacement and shall:- - (a) If the new vehicle is not in his possession, 5 WP(C)39996 OF 2018 state the material particulars in respect of which the new vehicle differs from the old; and - (b) If the new vehicle is in his possession forward the certificate of registration thereof. - (2) Upon receipt of the application, the Transport Authority may in his discretion, reject the application- (a) If it has previous to the date of receipt of the application given reasonable notice of its intention to reduce the number of Transport Vehicles of that class generally or in respect of the route or area to which the permit applies; or - (b) if the new vehicle proposed differs in material respects from the old; or - (c) if the new vehicle proposed is older than the one sought to be replaced; or - (d) if the holder of the permit has contravened the provisions thereof or has been deprived of possession of the old vehicle under the provisions of any agreement of hire purchase, hypothecation or lease. - (3) If the new vehicle proposed does not differ in material respects from the old, the application for replacement of the vehicle may be allowed. If there is material difference between the two vehicles, the application shall be treated as if it were for a fresh permit.” 7. After considering the provisions under Section 83 of the Act and also Rule 174 of the Rules, a Division Bench of this Court in **Regional Transport Authority and another v. Shaju (ILR 2017 (3) Kerala 720)** held that clause (c) of sub-rule (2) of Rule 174 of the Rules to the extent it restricts WP(C)39996 OF 2018 6 the use of an older model vehicle (stage carriage) to replace the existing vehicle is inconsistent with Section 83 of the Act and hence inoperative. As per Section 83 of the Act, the vehicle has to be replaced by another vehicle of same nature and the provision does not interdict replacement of the existing vehicles with an older model vehicle. The Division Bench held further that, if the vehicle is roadworthy, then it cannot be said that by replacing a vehicle with an older roadworthy vehicle the safety of passengers would in any manner be jeopardised. 8. In **Usha Nanthini M. V. Secretary, Regional Transport Authority, Palakkad & another (2018 (2) KHC 89)** this Court held that, in view of the law laid down by the Division Bench in **Shaju's case (supra)** no request made by a permit holder for replacement of vehicle can be declined merely for the reason that the incoming vehicle is an older model, subject, of course, to the older model vehicle being certified as roadworthy. After referring to the decision of the Apex Court in **M.C. Metha's case [(1997) 8 SCC 770]** , wherein it was held that the requirement of maintaining the motor vehicles in the manner prescribed and its use if roadworthy in a manner which does not endanger public, has WP(C)39996 OF 2018 7 to be ensured by the authorities and this is the aim of the provisions enacted in the Motor Vehicles Act; and also the provisions under Section 56 of the Motor Vehicles Act, which deals with certification of fitness of transport vehicles and Rule 62 of the Central Motor Vehicles Rules, which deals with validity of certificate of fitness, this Court in **Usha Nanthini's case** held that, a vehicle which no longer complies with all the requirements of the Motor Vehicles Act and the rules made thereunder cannot be permitted to be driven or plied on the road. Therefore, roadworthiness and viability of the incoming vehicle shall be the consideration in an application for replacement, rather than the model of the incoming vehicle. 9. An Application for replacement can be entertained by the appropriate authority only if the particulars of the incoming vehicle is mentioned in that application. Therefore, Ext.P4 application made by the petitioner for replacement, without providing the details of the incoming vehicle, cannot be entertained, which is rightly returned by the respondent as per Ext.P7 communication. In such circumstances, the petitioner is not entitled for reconsideration of Ext.P4 application for replacement, as sought for in this writ petition. 8 WP(C)39996 OF 2018 10. Another relief sought for in this writ petition is a writ of mandamus commanding the respondent to issue consequential orders in exercise of the powers under subsection (1) of Section 68 of the Motor Vehicles Act, enhancing the life span of stage carriages from 15 to 20 years from the date of registration, thereby effectuating the decision mentioned in Ext.P3 and for consequential orders. Ext.P3 is a Government notification dated 17.11.2018 proposing an amendment to Rule 260A of the Kerala Motor Vehicles Rules, 1989. The notification, if any, issued by the Government amending the said rules, is not on record. In the absence of any such material, the petitioner is not legally entitled to seek the second relief sought for in this writ petition. In the result, this writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 9 WP(C)39996 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGULAR PERMIT NO.P.ST.4/48/2002 EXHIBIT P2 TRUE COPY OF THE R.C.BOOK WITH ITS VEHICLE NO.KL 3/J 1141** **EXHIBIT P3 TRUE COPY OF THE NOTIFICATION DATED 17.11.2018 PUBLISHED IN THE TRANSPORT(B) DEPARTMENT EXHIBIT P4 TRUE COPY OF THE REPLACEMENT APPLICATION DATED 8.11.2018 EXHIBIT P5 TRUE COPY OF THE DEMAND DRAFT DATED 13.11.2018 EXHIBIT P6 TRUE COPY OF THE COVERING LETTER SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT DATED 13.11.2018 EXHIBIT P7 TRUE COPY OF THE INTIMATION ISSUED BY THE RESPONDENT DATED 16.11.2018** ## **RESPONDENTS' EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**