High Court of KeralaSingle Judge2012-04-12Writ petition disposed with a direction to cons...

Tomy J. Alumkal v. Secretary, Regional Transport Authority, Ernakulam

Case / Petition Number:WP(C).No. 8233 of 2012 (D)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. N. Ravindran
Judgment Date: 2012-04-12
Court Decision / Holding: I accordingly dispose of the writ petition with a direction to the respondent to take up Ext.P2 for consideration and pass appropriate orders thereon expeditiously and in any event within an outer limit of two weeks from the date of receipt of a certified copy of this judgment. Needful, if replacement is granted, shall be endorsed on the original permit and the necessary clearance certificate issued in respect of the outgoing vehicle.
Final Disposition: Writ petition disposed with a direction to consider Ext.P2 within two weeks; if replacement is granted, endorsement on the permit and clearance for the outgoing vehicle.

Parties to the Case

Appellants / Petitioners

Tomy J. Alumkal

Respondents

Secretary, Regional Transport Authority, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P. Deepak

Counsels for Respondents

• Sri. G. Gopakumar

Case Synopsis & Summary

The petitioner, Tomy J. Alumkal, is a stage carriage operator on the Pathanamthitta-Chittarikkal route, operating a regular permit service with a 2006 KL-05/W 9799 vehicle. Before the permit's validity expired, he applied for renewal and for a four-month temporary permit under section 87(1)(d) of the Motor Vehicles Act. Ext.P1 issued the temporary permit from 18.12.2011 to 17.4.2012. Subsequently, the petitioner leased a newer 2011 model stage carriage (KL-05/AE 1825) and filed Ext.P2 for replacement of the existing vehicle, accompanied by Ext.P3 lease agreement. The respondent refused to act, contending replacement cannot be effected with a leased vehicle. The petitioner argued that the mere expiry of the initial permit should not force retention of the old vehicle for renewal, relying on this Court’s unreported decision in W.P.(C) No.9012 of 2007, and on Raveendran v. RTO (1995 (1) KLT 126), which holds that a permit can be issued in respect of a leased vehicle and that the permit holder need not be the registered owner. The Government Pleader countered that the proposed replacement is hypothecated to Hinduja Leyland Finance Limited and that no objection from the financier is absent. The court found no statutory requirement for financier consent and distinguished the barrier argued; it directed that Ext.P2 be considered on merits and, if approved, the replacement endorsed on the permit with a clearance for the outgoing vehicle within two weeks.

Provisions of Law Cited

Section 87(1)(d) of the Motor Vehicles Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that expiry of a permit cannot by itself compel retention of the old vehicle when renewal is pending. Relying on an unreported decision of this Court in W.P.(C) No.9012 of 2007, he argues that a stage carriage operator may seek replacement with a later model even after expiry, provided renewal has been sought. He also relies on Raveendran v. RTO, 1995 (1) KLT 126, to contend that a permit can be issued in respect of a vehicle taken on lease and that the permit holder need not be the registered owner. The petitioner submits that the absence of a no objection certificate from a financier cannot ordinarily bar consideration of Ext.P2, if there is no statutory provision requiring financier consent for replacement under the MV Act or Rules. He asserts that denial would frustrate the objective of safe and modern public transport and penalize an operator for renewal delays beyond his control. Therefore Ext.P2 should be considered on merits, and if found fit, replacement should be endorsed on the regular permit and the required clearance certificate issued for the outgoing vehicle.

Contentions of Respondents

The respondent submits that the vehicle offered by the petitioner is hypothecated to Hinduja Leyland Finance Limited and that in the absence of a no objection certificate from the financier, the replacement cannot be considered. The Government Pleader argues that financier interests must be safeguarded and that replacement should await consent to avoid encumbrances on the outgoing vehicle. He contends there is no express MV Act or Rules provision requiring such consent; however, lack of an NOC could create financial and legal complications. Consequently, the respondent urges the court to insist on obtaining the financier's consent or NOC before considering Ext.P2. The respondent also requests verification of the lease arrangements and records before allowing replacement.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Unreported decision in W.P.(C) No.9012 of 2007	W.P.(C) No.9012 of 2007 (unreported)	Positive	Cited to support the proposition that expiry of the permit does not compel retaining the old vehicle for renewal and that replacement can be sought while renewal is pending.
Raveendran v. RTO	1995 (1) KLT 126	Positive	Used to support that a permit can be issued for a leased vehicle and that the permit holder need not be the registered owner.
W.P.(C) No.10812 of 2007	W.P.(C) No.10812 of 2007	Positive	Held that there is no requirement for financier consent for replacement under MV Act/Rules; used to justify considering Ext.P2 without financier consent.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Tomy J. Alumkal v. Secretary, Regional Transport Authority, Ernakulam and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934 WP(C).No. 8233 of 2012 (D) -------------------------- PETITIONER(S): ------------- TOMY J.ALUMKAL, ALUMKAL HOUSE, ANICKAD EAST P.O., KOTTAYAM. BY ADV. SRI.P.DEEPAK RESPONDENT(S): -------------- THE SECRETARY REGIONAL TRANSPORT AUTHORITY,ERNAKULAM-682 030. BY GOVT. PLEADER SRI.G.GOPAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 8233/2012 ## APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1. TRUE COPY OF THE TEMPORARY PERMIT ISSUED U/S.87(1)(D) VALID TILL 17/4/2012. EXHIBIT P2. TRUE COPY OF THE APPLICATION FOR REPLACEMENT WITH CONVERING LETTER DATED 27/3/2012. EXHIBIT P3. TRUE COPY OF THE LEASE AGREEMENT DATED 24/3/2012. RESPONDENTS' EXHIBITS NIL /True Copy/ vps PA to Judge ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No.8233 OF 2012 -------------------------Dated this the 12[th] day of April, 2012** ## **J U D G M E N T** The petitioner is a stage carriage operator operating a stage carriage service on the route Pathanamthitta-Chittarikkal on the strength of a regular permit. He was operating the service with stage carriage bearing registration No.KL-05/W 9799, a 2006 model vehicle with a seating capacity of 48 passengers. Even before the validity of the permit expired, the petitioner applied for renewal by submitting an application in time. He also applied for a temporary permit of four months duration under section 87(1)(d) of the Motor Vehicles Act. Thereupon Ext.P1 temporary permit of four months duration valid for the period from 18.12.2011 to 17.4.2012 was issued in respect of stage carriage bearing registration No.KL-05-W-9799. The petitioner thereafter took on lease a 2011 model stage carriage, bearing registration No.KL-05/AE 1825, a vehicle with similar seating capacity and submitted Ext.P2 application dated 27.3.2012 for replacement of the existing vehicle with the said vehicle. Along with the application he produced the original of Ext.P3 lease agreement entered into by him with the registered owner of the incoming vehicle. This writ petition is filed contending that the respondent WPC No.8233/2012 2 declined to act on the application on the ground that replacement cannot be effected with a vehicle taken on lease. In this writ petition, the petitioner seeks an order directing the respondent to grant the request in Ext.P2 application for replacement of the vehicle and to endorse the replacement of the vehicle on the regular permit. 2. I heard Sri.P.Deepak, learned counsel appearing for the petitioner and Sri.G.Gopakumar, learned Government Pleader appearing for the respondent. The learned counsel appearing for the petitioner contended relying on the unreported decision of this Court in W.P.(C) No.9012 of 2007 that the mere fact that the validity of the permit has expired is not a reason to compel the petitioner to retain the old vehicle for the purpose of getting renewal of the permit and that a stage carriage operator can, at any time even after the expiry of the permit, seek replacement of the existing stage carriage with a later model vehicle, provided he has applied for renewal of the permit. The learned counsel appearing for the petitioner contended relying on the decision of this Court in **Raveendran v. RTO** (1995 (1) KLT 126) that a permit can be issued even in respect of a vehicle taken on lease and that a permit holder need not be the registered owner of the vehicle. Per contra, the learned Government Pleader appearing for the respondent submitted on instructions that the vehicle now offered by WPC No.8233/2012 3 the petitioner is hypothecated to M/s. Hinduja Leyland Finance Limited and in the absence of a no objection certificate from the financier, the application for replacement cannot be considered. 3. I have considered the submissions made at the Bar by the learned counsel on either side. The very issue raised by the learned Government Pleader was considered by a learned single Judge of this Court in W.P.(C) No.10812 of 2007. It was held that in the absence of any provision in the Motor Vehicles Act or the Rules which stipulates that for replacement of a stage carriage, the consent of the financier of the outgoing vehicle is necessary, the respondent is bound to consider the application for replacement of the vehicle in accordance with law without insisting on the consent of the financier. If that be so, in the absence of any stipulation to the effect that a no objection certificate from the financier of the incoming vehicle should be produced, I find no reason why the petitioner's application for replacement of the existing vehicle with the later model vehicle offered in Ext.P2, should not be considered and disposed of on the merits. That apart, a learned single Judge of this Court has in W.P.(C) No.9012 of 2007 held that the mere fact that validity of the original permit has expired and the application for renewal is pending, is not a reason to compel the stage carriage operator to retain the old vehicle for the purpose of WPC No.8233/2012 4 seeking renewal and after the permit is renewed, seek replacement of the vehicle. In such circumstances, I am of the opinion that the respondent should consider Ext.P2 application and pass appropriate orders thereon. I accordingly dispose of the writ petition with a direction to the respondent to take up Ext.P2 for consideration and pass appropriate orders thereon expeditiously and in any event within an outer limit of two weeks from the date of receipt of a certified copy of this judgment Needless to say, in the event of replacement being granted, it shall be endorsed on the original of the permit and the necessary clearance certificate shall be issued in respect of the outgoing vehicle. ## **P.N.RAVINDRAN,** ## **(JUDGE)** vps WPC No.8233/2012 5 WPC No.8233/2012 6