Sunil Kumar C.P. v. Regional Transport Authority, Thrissur; and Binoy v. State of Kerala and Others (WP(C) Nos. 8221 of 2020, 18052 of 2022, and 13899 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944 WP(C) NO. 18052 OF 2022** ## **PETITIONER/S:** BINOY, AGED 49 YEARS S/O. PADMANABHAN, CHNNAGATH HOUSE, KADUPPASSERY VILLAGE, KADUPPASSERY DESOM, KADUPPASSERY P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT , PIN 680 683. BY ADV N.L.BITTO ## **RESPONDENT/S:** 1 THE STATE OF KERALA, REP. BY THE SECRETARY TO THE GOVERNMENT, MOTOR VEHICLE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHPURAM, PIN 695 001. 2 THE REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, CIVIL STATION, AYYANTHOLE P.O, THRISSUR DISTRICT, PIN 680 003. 3 SUB REGIONAL TRANSPORT OFFICER, SUB REGIONAL TRANSPORT OFFICE, MINI CIVIL STATION, IRINJALAKUDA, PIN 680 121. 4 SUNILKUMAR, AGED 51 YEARS S/O. PADMANABHAN, CHNNAGATH HOUSE, KADUPPASSERY VILLAGE, KADUPPASSERY DESOM, KADUPPASSERY P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN 680 683. BY ADV M.JITHESH MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WP(C).8221/2020, 13899/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 18052 OF 2022** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944** ## **WP(C) NO. 8221 OF 2020** ## **PETITIONER/S:** SUNILKUMAR C.P AGED 50 YEARS S/O. LATE PADMANABHAN C.V., CHINNANGATH HOUSE, KADUPPASSERY P.O., THRISSUR. BY ADV M.JITHESH MENON ## **RESPONDENT/S:** |1|THE REGIONAL TRANSPORT AUTHORITY| |---|---| ||THRISSUR, COLLECTORATE, AYYANTHOLE, THRISSUR-680 003.| |2|THE SECRETARY| ||REGIONAL TRANSPORT AUTHORITY, THRISSUR, COLLECTORATE,| ||AYYANTHOLE, THRISSUR-680 003.| |3|THE JOINT REGIONAL TRANSPORT OFFICER| ||IRINJALAKUDA, OFFICE OF THE SUB REGIONAL TRANSPORT| ||OFFICE, MINI CIVIL STATION, IRINJALAKUDA, IN-680 125.| |4|LAIJU| ||W/O. SURYAKUMAR, MADAMBIKATTIL HOSUE, P.O.| ||VELLANIKKARA, MANNUTHY P.O., THRISSUR, PIN-680 651.| |5|BINOY C.P.| ||S/O. LATE PADMANABHAN C.V., CHINNANGATH HOUSE,| ||THUMBOOR P.O., IRINJALAKUDA, THRISSUR, PIN-680 662.| THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WP(C).18052/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 18052 OF 2022** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944** **WP(C) NO. 13899 OF 2022** ## **PETITIONER/S:** BINOY AGED 49 YEARS S/O. PADMANABHAN, CHNNANGATH HOUSE, KADUPPASSERY VILLAGE, KADUPPASSERY DESOM, KADUPPASSERY P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680683. BY ADV N.L.BITTO ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, MOTOR VEHICLE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - PIN - 695001. 2 THE REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, MINI CIVIL STATION, IRINJALAKUDA, PIN - 680121. 3 THE REGIONAL TRANSPORT OFFICER, SUB REGIONAL TRANSPORT OFFICE, MINI CIVIL STATION, IRINJALAKUDA, PIN - 680121. 4 SUNILKUMAR AGED 51 YEARS S/O. PADMANABHAN, CHNNANGATH HOUSE, KADUPPASSERY VILLAGE,KADUPPASSERY DESOM, KADUPPASSERY P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680683. BY ADV M.JITHESH MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WP(C).18052/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 18052 OF 2022** **4** ## **JUDGMENT** This order of mine shall dispose of three writ petitions ie., WP. (C) No.8221 of 2020 titled as Sunilkumar C.P v. Regional Transport Authority, Thrissur and Others challenging the order dated 6.3.2020, Ext.P15 refusing to transfer the vehicles bearing registration No.KL- 40/A 7374 and KL8-AE 4525 on the strength of the clearance certificate issued by the RTA Thrissur Exts.P8 and P9 (hereinafter called the first writ petition) and W.P.(C) No.18052 of 2022 and W.P.(C) No.13899 of 2022 titled as Binoy v. State of Kerala and Others challenging the communication Ext.P3, where the RTA, Irinjalakuda had expressed to transfer the aforementioned vehicles in the name of Sri.Sunil kumar (hereinafter called second and third writ petition). 2. The facts in brief in all the writ petitions are that the aforementioned two vehicles were owned by one Padmanabhan, father of Sri. Binoy, who unfortunately died on 6.3.2018 and left behind a registered will dated 17.5.2018 bequeathing the vehicles in favour of Sunil Kumar, petitioner in WP.(C) No.8221 of 2020. He had taken the possession of the vehicle and submitted an application as per the provisions of Section 82 of the Motor Vehicles Act 1988 **WP(C) NO. 18052 OF 2022** **5** for transfer of the permit. Since no action was taken, a writ petition was filed resulting into an order of this Court dated 2.8.2018. In the meantime, a civil suit for partition of the properties of the deceased Padmanabhan bearing No. O.S 144 of 2018 was preferred resulted into a compromise decree amongst the legal heirs by judgment and decree dated 29.1.2019. Regional Transport Authority vide order dated 5.9.2019, noticing the no objection by the other legal heirs and party to the civil suit passed an order to transfer of permits in favour of Sri.Sunilkumar. Besides, the order, as per the contention of Sri.Sunil kumar, was required to be forwarded to the Secretary, RTA in view of the provisions of Rule 178 of the Kerala Motor Vehicles Rules. Competent authority issued certificates Ext.P8 and P9 ( WP.(C) No.8221 of 2020). An application was submitted by Sri.Sunilkumar on 28.11.2019 for transfer of the vehicle. However before that had approached this Court. This Court passed an order directing the respondent, RTA to consider the application. Intriguingly, by that time, since the compromise decree had been passed, the other legal heirs were not impleaded as party. RTA vide impugned communication dated 6.3.2020 rejected the transfer of the ownership on the basis of the preliminary decree. 3. Mr. M. Jithesh Menon, learned counsel for the petitioner **WP(C) NO. 18052 OF 2022** **6** submitted that the order of the RTA was totally in variation with the previous decision dated 5.9.2019 as once the permit was ordered to be transferred as a natural consequence, the ownership was also required to be transferred particularly, when the other legal heirs had expressed no objection. 4. On the other hand, Sri.Bitto.N.L counsel representing the other brother Binoy by laying challenge to the communication Ext.P3 whereby RTA had expressed the intention to transfer the ownership of the vehicle, assailed the aforementioned finding on the ground that pending preparation of the final decree, transfer/ownership of the vehicle in question cannot be transferred in favour of Sri.Sunilkumar. The no objection was only with respect to transfer of “Permits” considering the fact that he was in possession as well as per the provisions of Section 82 of the Motor Vehicles Act. RTA deliberately ignored the order dated 5.9.2019 wherein no objection was with regard to transfer of permits. 5. I have heard the learned counsel for the parties and appraised the paper book. It would be apt to reproduce the provisions of Section 82 of the Motor Vehicles Act and Rule 178. Section 82: Transfer of permit.—(1) Save as provided in subsection (2), a permit shall not be transferable from one person to another except with the permission of the transport authority **WP(C) NO. 18052 OF 2022** **7** which granted the permit and shall not, without such permission, operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. (2) Where the holder of a permit dies, the person succeeding to the possession of the vehicle covered by the permit may, for a period of three months, use the permit as if it had been granted to himself: Provided that such person has, within thirty days of the death of the holder, informed the transport authority which granted the permit of the death of the holder and of his own intention to use the permit: Provided further that no permit shall be so used after the date on which it would have ceased to be effective without renewal in the hands of the deceased holder. (3) The transport authority may, on application made to it within three months of the death of the holder of a permit, transfer the permit to the person succeeding to the possession of the vehicles covered by the permit: Provided that the transport authority may entertain an application made after the expiry of the said period of three months if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified. Rule 178. Permit‐Transfer of.‐ (1) When the holder of a permit desires to transfer the permit to some other person under sub‐section (1) of Section 82 of the Act he shall, together with the person to whom he desires to make the transfer, make a joint application in writing to the Transport Authority by which the permit was issued setting forth the reasons for the proposed transfer. The fee for transfer of permit shall be the same as prescribed for the grant or renewal ofpermitsunderRule164. (2) On receipt of an application under sub‐rule (1) the Transport Authority may require the holder of the permit and the other party to state in writing whether any premium, payment or other consideration arising out of the transfer is to pass or has passed between them and the nature and amount of any such premium, payment or other consideration. (3) Without prejudice to any other penalty to which the parties máy be liable, any transfer of a permit ordered upon an application which to Transport Authority is subsequently satisfied as false in respect of the matter specified in sub‐rule (2) or in respect of any other material particular shall be void. What is a material particular for purposes of this sub‐rule shall be decided by the Transport Authority in its discretion. (4) The Transport Authority may summon both the parties to the **WP(C) NO. 18052 OF 2022** **8** application for the transfer of a permit to appear before it and may, if it deems fit, deal with the application as if it were an application for a permit. (5) (a) If the Transport Authority is satisfied that the transfer of a permit may property be made it shall call upon the holder of the permit in writing to surrender the permit within seven days of the receipt of the order: 6. On perusal of the same, if on demise of the owner of the vehicle, if one of the legal heir is in possession of the vehicle within three months, is required to move an application for transfer of the permit. This is precisely what was done as per the order dated 5.9.2019. It was on a subject of transfer of permit, not of ownership. The preliminary decree dated 29.1.2019 reads thus: ## _Preliminary decree_ _District - Thrissur Sub District - Kallettumkara Taluk - Mukundapuram Village - Kaduppassery Panchayath - 'do'_ _Survey No. - 307, 308, 321, 322, 309, 304, 303 Sub Division No. 1, 2 Cent - Are -_ ## _Description of A Schedule_ _5 acre 99 cents of land along with, terrace house, cattle shed, log house, Motor shed with all rights and improvements belongs to Padmanabhan who is the husband of the 1st plaintiff and father of the 2nd and 3rd plaintiff by vide document No. 1821 of Kallattumkara SRO,_ _East : Properties of Marottikunnel Kunjitty, Pottathuparambil Lonappan. Veliyathparambil Raman, Kodoth Chathely North: Properties of Pattathuprambil Thoman, Chinnangath Rajan,_ **WP(C) NO. 18052 OF 2022** **9** _West: Properties of Pattathuparambil George, Varkey, Chinnangath Rajan, Paddy land of 1st plaintiff, Manaparambil Chandrahassan South: Properties of Edappully Family, Pattathuprambil Mathew, Chinnangath Rajan_ ## _Description of B Schedule._ _1.21 Ares of property with all rights and improvements therein and the tire resoling shop with all rights and improvements therein belongs to Padmanabhan by vide document No. 1821 of Kallettumkara SRO,_ _East: Public road North: Property sold by Kachappilly West: C.M.S School South: Property sold by Kachappilly_ ## _C Schedule property_ _1. Leyland bus bearing reg. No. KL-40-A-7374 along with route permit and conducting service through Mathilakam-Irinjalakuda-Chalakudy belongs to late Padmanabhan,_ _2 Leyland Bus bearing reg. No. KL-08-AE-4525 along with route permit and conducting service through Mothirakanni, ChalakudyThirumudkunnu-Irinjalakuda owned by late Padmanabhan._ 7. As per the schedule C, the vehicles are also part of the preliminary decree. The order dated 6.3.2020 rejecting the transfer of the ownership in my view is perfectly legal and justified as the parties would be bound by the outcome of the final decree which is still pending as one of the sibling, sister has already moved an application challenging the compromise. Subject to the outcome of the same, as and when the final decree is drawn, till such time all **WP(C) NO. 18052 OF 2022** **10** the legal heirs are the co-owner of the vehicle in question. Exclusive ownership will be only sanctioned and accorded after drawing of the final decree which is still pending adjudication. But for the reasons best known the authority could not have again initiated the action vide communication Ext.P3 assailed by the other legal heir Binoy pointing out the no objection submitted by Sri. Binoy was with regard to the transfer. The order dated 5.9.2019 did not reflect any no obejction on behalf of the petitioner in W.P.(C) No.18052 of 2022 and W.P.(C) No.13899 of 2022 with regard to the transfer/ownership of the vehicle in favour of Sri.Sunilkumar. WP.(C) No.8221 of 2020 is dismissed. W.P.(C) No.18052 of 2022 and W.P.(C) No.13899 of 2022 are allowed by quashing the communication Ext.P3 dated 19.5.2022 and 29.1.2022 respectively. RTA is restrained from transferring the ownership till drawing of the final decree. As and when the final decree is drawn, whoever is declared the owner of the vehicle would be entitled to submit an application for transfer of the ownership, in accordance with law. **Sd/-** sab **AMIT RAWAL** **JUDGE** ## **WP(C) NO. 18052 OF 2022** ## **11** ## **APPENDIX OF WP(C) 8221/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY THE CHALAKUDY MUNICIPALITY DATED 20.6.2018. - EXHIBIT P2 TRUE COPY OF THE WILL EXECUTED BY SRI.PADMANABHAN DATED 17.5.2018. - EXHIBIT P3 TRUE COPY OF THE JUDGMENT RENDERED BY THIS HON'BLE COURT IN WP(C) NO.24810/2018 DATED 2.8.2018. - EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN O.S.NO.144/2018 DATED 29.1.2019. - EXHIBIT P5 TRUE COPY OF THE DECREE IN O.S.NO.144/2018 DATED 29.1.2019 - EXHIBIT P6 TRUE COPY OF THE ORDER DATED 5.9.2019. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 5.9.2019. - EXHIBIT P8 TRUE COPY OF THE CLEARANCE CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 22.11.2019. - EXHIBIT P9 TRUE COPY OF THE CLEARANCE CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 22.11.2019. - EXHIBIT P10 TRUE COPY OF THE APPLICATION FOR TRANSFER OF OWNERSHIP OF THE VEHICLE SUBMITTED BY THE PETITIONER DATED 28.11.2018. - EXHIBIT P11 TRUE COPY OF THE APPLICATION FOR TRANSFER OF OWNERSHIP OF THE VEHICLE SUBMITTED BY THE PETITIONER DATED 28.11.2018. **WP(C) NO. 18052 OF 2022** **12** EXHIBIT P12 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 9.12.2019. EXHIBIT P13 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 9.12.2019. EXHIBIT P14 TRUE COY OF THE JUDGMENT IN WP(C) NO.35353/2019 DATED 20.12.2019. EXHIBIT P15 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 6.3.2020. ## **WP(C) NO. 18052 OF 2022** ## **13** ## **APPENDIX OF WP(C) 13899/2022** |PETITIONER EXHIBITS:|| |---|---| |Exhibit P1|A TRUE COPY OF THE DECREE IN OS. 144 OF 2018 OF THE| ||PRINCIPAL SUB COURT IRINJALAKUDA DATED 29.01.2019.| |Exhibit P2|A TRUE COPY OF THE ORDER PASSED AS C7/727/2020/IJK| ||BY THE JOINT RTO IRINJALAKUDA DATED 6.3.2020.| |Exhibit P3|A TRUE COPY OF THE LETTER ISSUED AS R8/1031/2022 BY| ||THE RTO IRINJALAKUDA DATED 29.01.2022.| |Exhibit P4|A TRUE COPY OF THE REPLY FILED BY THE PETITIONER| ||BEFORE THE 3RD RESPONDENT DATED 10.02.2022.| |Exhibit P5|A TRUE COPY OF THE LETTER ISSUED AS C4/7364/2022 BY| ||THE 3RD RESPONDENT DATED 21.2.2022.| |RESPONDENT EXHIBITS|| |Exhibit R4 A|TRUE COPY OF THE WILL EXECUTED BY SRI.PADMANABHAN| ||DATED 17.5.2018| |Exhibit R4 B|TRUE COPY OF THE JUDGMENT RENDERED BY THIS HON'BLE| ||COURT IN WPC NO-24810/2018 DATED 2.8.2018| |Exhibit R4 C|TRUE COPY OF THE ORDER PASSED BY THE REGIONAL| ||TRANSPORT AUTHORITY THRISSUR DATED 5.9.2019| |Exhibit R4 D|TRUE COPY OF THE CLEARANCE CERTIFICATE ISSUED BY| ||THE SECRETARY, REGIONAL TRANSPORT AUTHORITY,| ||THRISSUR DATED 22.11.2019| |Exhibit R4 E|| ||TRUE COPY OF THE APPLICATION FOR TRANSFER OF| ||OWNERSHIP OF THE VEHICLE FILED BY THE PETITIONER IN| ||THE STATUTORY FROM 31 DATED 28.11.2019| |Exhibit R4 F|TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE| ||COURT IN WPC NO-35353/2019 DATED 20.12.2019| **WP(C) NO. 18052 OF 2022** **14** ## **APPENDIX OF WP(C) 18052/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE DECREE IN OS 144 OF 2018 OF THE PRINCIPAL SUB COURT IRINJALAKUDA DATED 29.01.2019, ALONG WITH ENGLISH TRANSLATION. Exhibit P2 A TRUE COPY OF THE ORDER PASSED AS C7/727/2020/IJK BY THE JOINT RTO IRINJALAKUDA DATED 6.3.2020. Exhibit P3 A TRUE COPY OF THE LETTER ISSUED AS C4/1031/2022 BY THE RTO IRINJALAKUDA DATED 19.05.2022 ALONG WITH ENGLISH TRANSLATION. Exhibit P4 A TRUE COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 25.05.2022 ALONG WITH ENGLISH TRANSLATION. Exhibit P5 A TRUE COPY OF THE STAY ORDER IN W.P.(C) NO. 13899 OF 2022 OF THE HON'BLE HIGH COURT OF KERALA DATED 12.4.2022.