V.A. Thampi v. State Transport Appellate Tribunal, Ernakulam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938** **WP(C).No. 32586 of 2015 (W) ----------------------------** **PETITIONER(S)/PETITIONER: ------------------------** **V.A.THAMPI,** **S/O. ABRAHAM, RESIDING AT 'MAYILVAHANAM', SHORNUR.** ## **BY ADV. SRI.I.DINESH MENON** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM-682 011.** **2. THE REGIONAL TRANSPOT AUTHORITY, THRISSUR-686 002.** **3. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, THRISSUR-686 002.** **4. MOHAMMED FAISAL, POKKAKILATH HOUSE, RAHAT MANZIL, OVUNGAL BAZAR, CHAVAKKAD-680 553.** **R1-R3 BY GOVERNMENT PLEADER SMT.A.C.VIDHYA R4 BY ADV. SRI.K.V.GOPINATHAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2016 ALONG WITH WPC. 28293/2016, THE COURT ON 28-11-2016, DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 32586 of 2015 (W)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1- TRUE COPY OF THE PERMIT OF THE PETITIONER. EXHIBIT P2- TRUE COPY OF THE PROCEEDINGS DATED 8-8-2011. EXHIBIT P3- TRUE COPY OF THE APPEAL MEMORANDUM IN MVAA NO. 397/2011 DATED 8-11-2011.** **EXHIBIT P4- TRUE COPY OF THE JUDGMENT IN MVAA NO. 397/2011 DATED 16-5-2015.** **EXHIBIT P5- TRUE COPY OF THE COMMUNICATION DATED 17-7-2014. EXHIBIT P6- TRUE COPY OF THE COMMUNICATION DATED 19-9-2014. EXHIBIT P7- TRUE COPY OF THE COMMUNICATION DTD.25.5.2016. EXHIBIT P8- TRUE COPY OF THE TIMINGS VEHICLE DETAILS OF KL-11 N 9330.** **IA.13631/2016 IN WPC.32586/2015** **-------------------------------** **EXHIBIT P1 TRUE COPY OF THE PERMIT IN RESPECT OF KL-09 R 4900.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXT.R4(a): TRUE COPY OF THE PERMIT IN RESPECT OF STAGE CARRIAGE KL-51/A 8542 ISSUED TO P.RAVI.** **EXT.R4(b): TRUE COPY OF THE DECISION OF THE 2ND RESPONDENT GRANTING REPLACEMENT DTD.22.7.2010.** **EXT.R4(c): TRUE COPY OF THE TEMPORARY PERMIT ISSUED ON 11.5.2011.** **EXT.R4(d): TRUE COPY OF THE DECISION OF THE 2ND RESPONDENT DTD.3.10.2015.** ## **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.32586 of 2015** ## **&** ## **W.P.(C) No.28293 of 2016** ## **-----------------------------------------------** ## **Dated 28[th] November, 2016** ## **J U D G M E N T** Common issues arise for consideration in these matters and as such, they are disposed of by this common judgment. The parties and exhibits are referred to in this judgment as they appear in W.P.(C) No.32586 of 2015. The matters arise under the Motor Vehicles Act, 1988 ('the Act'). 2. The undisputed facts are the following: The fourth respondent was operating a stage carriage service on a regular permit on the route Chavakkad – Pattambi. The permit issued to the fourth respondent was valid till 28.10.2009. KL-08/C-9080 was the vehicle in respect of which permit has been issued to the fourth respondent. The said vehicle attained 15 years on 29.11.2008. In view of the restrictions against the use of vehicles which have completed WPC 32586/15 & 28293/16 2 15 years for operating stage carriage services, the fourth respondent was not operating service thereafter. On 12.10.2009, the fourth respondent preferred an application for renewal of the permit issued to him. On the same day, he has preferred another application for replacement of the original vehicle with the vehicle bearing No.KL-11/N-9330. About eight months after the expiry of the permit, the fourth respondent submitted a fresh application for replacement of the original vehicle with vehicle bearing No.KL-09/F-666. The application submitted by the fourth respondent for renewal of the permit as also the application submitted by him for replacement of the original vehicle with vehicle bearing No.KL-09/F-666, were taken up for consideration by the Regional Transport Authority and by Ext.R4(b) order, the application for replacement was allowed and the application for renewal was adjourned for want of concurrence from the sister Regional Transport Authority. Later, as per Ext.P2 order, the Regional Transport Authority rejected the application for renewal submitted by the fourth respondent holding that he has not applied for replacement of WPC 32586/15 & 28293/16 3 the vehicle before the expiry of the permit. Ext.P2 order was challenged by the fourth respondent in M.V.A.A.No.397 of 2011 before the State Transport Appellate Tribunal. As per Ext.P4 judgment, the Tribunal allowed the said appeal and remitted the matter for fresh consideration, after setting aside Ext.P2 order. Pursuant to Ext.P4 judgment, the matter was reconsidered and the fourth respondent was granted the renewal of the permit sought by him. Ext.R4(d) is the order passed by the Regional Transport Authority in this connection on 3.10.2015. The above writ petitions are filed in the above factual background by a rival operator, of which W.P.(C) No.32586 of 2015 was against Ext.P4 judgment of the State Transport Appellate Tribunal and W.P.(C) No.28293 of 2016 was against Ext.R4(d) order passed by the Regional Transport Authority. 3. Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned counsel for the fourth respondent. 4. Ext.P4 judgment of the Tribunal is challenged WPC 32586/15 & 28293/16 4 by the petitioner mainly on the ground that the same was rendered on a concession made by the Standing Counsel for the respondents therein. According to the learned counsel for the petitioner, the Tribunal should not have set aside an order passed by the Regional Transport Authority merely on a concession given by the Standing Counsel for the respondents. There is force in this contention. Normally, in a case of this nature, this Court would have set aside Ext.P4 judgment on that score and directed the matter to be considered afresh by the Tribunal. But, I do not propose to adopt the said course in this case for the reason that the renewal of the permit sought by the fourth respondent has been granted by the Regional Transport Authority pursuant to Ext.P4 judgment before the institution of the writ petition itself and if the course referred to above is adopted, the same will have the effect of nullifying the said order, even if the same is in order. I, therefore, propose to decide the correctness of the order passed on the application preferred by the fourth respondent for renewal of permit on its merit. WPC 32586/15 & 28293/16 5 5. In **Binu Chacko v. R.T.A. Pathanamthitta** (2006(2) KLT 172), a Full Bench of this Court held that the existing stage carriage operators cannot be said to be aggrieved for invoking the revisional jurisdiction of the State Transport Appellate Tribunal under Section 90 of the Act to challenge the grant of a fresh permit. In **Ratheesh M.C. v. Secretary, Regional Transport Authority, Thrissur** (2015 (1) KLT 248), a Larger Bench of this Court, however, clarified the Full Bench decision to the effect that although the existing permit holders have no right and cannot be held to be aggrieved when they seek to challenge the grant of permit on the ground that the same would prejudicially affect their commercial interest, the right to file a revision under Section 90 of the Act or file a writ petition, cannot be denied in a case where the grant is against the statutory provision. In other words, if grant of a fresh permit is contrary to the provisions contained in the Act, a revision under Section 90 of the Act or a writ petition, as the case may be, at the instance of the rival operator cannot be rejected as not maintainable. The short WPC 32586/15 & 28293/16 6 question that falls for consideration, therefore, is whether there has been any statutory infraction in the matter of rendering Ext.R4(d) order . 6. Since the question referred to above involves interpretation of the provisions of the Act, it is worth referring to the scheme of the Act. In **Mithilesh Garg and others v. Union of India** (AIR 1992 SC 443), the Apex Court held, on a comparative reading of the provisions of the Act and the provisions of the Motor Vehicles Act, 1939, that the procedure for grant of permit under the Act has been liberalised to such an extent that an intended operator can get a permit for the mere sake of asking. It is also held by the Apex Court in the said case that the scheme of the Act is such that there shall be enough and more operators on every route to provide ample choice to the commuter public. When the statute adopts a liberal policy for grant of permits to those who intend to enter the motor transport business, according to me, the provisions in the statute have to be interpreted liberally in favour of grant of permits which include renewal of permits as well. WPC 32586/15 & 28293/16 7 7. Reverting to the facts of the present case, the permit issued to the fourth respondent was valid till 28.10.2009. He could not operate service beyond 29.11.2008 as the vehicle in respect of which the permit has been issued completed 15 years. In the light of the decision of this Court in **Aysha v. R.T.A., Kasargode** (2006(3) KLT 1013), the fourth respondent was entitled to get the vehicle replaced before the expiry of the permit on 28.10.2009. The fourth respondent has applied for renewal of the permit before the expiry of the permit on 12.10.2009. On the same day, he has also applied for replacement of the vehicle. The prayer in the said application was to replace the vehicle with the vehicle bearing No.KL 11/N-9330. According to the petitioner, the said vehicle was neither under the ownership nor under the possession of the fourth respondent. It is stated by the petitioner that the fourth respondent could secure a vehicle only about eight months after the expiry of the permit and it is in the said circumstances that he submitted yet another application for replacement of the vehicle with the vehicle secured by him WPC 32586/15 & 28293/16 8 namely, KL-09/F 666. It is the case of the petitioner that since the fourth respondent was not in possession of a vehicle at the time when he submitted the application for replacement, the application for renewal of the permit filed by him was not maintainable and the same was rightly rejected by the Regional Transport Authority as per Ext.P2 order. The learned counsel for the petitioner, relying on Rule 172 of the Kerala Motor Vehicles Rules, contended that an applicant for renewal of a permit should have a ready vehicle with him. The learned counsel for the petitioner, relying on Exts.P7 and P8 documents, also contended that the fourth respondent was not the owner nor the person in possession of the vehicle bearing No.KL-11 N 9330 in respect of which the renewal of the permit was sought by him. I am not impressed by the case set up by the petitioner. The fact that the fourth respondent has submitted an application for renewal within time is not in dispute. Likewise, the fact that the petitioner has submitted an application for replacement of the vehicle during the validity of the permit is also not in dispute. The illegality highlighted by WPC 32586/15 & 28293/16 9 the petitioner is that the claim of the fourth respondent in the application for renewal submitted by him that he had a ready vehicle in his possession, namely, the vehicle referred to in the first application for replacement , is incorrect. The said case is sought to be substantiated by the petitioner relying on the subsequent conduct of the fourth respondent in submitting another application for replacement. According to me, there shall not be any impediment for submitting a fresh application for replacement during the pendency of an earlier application for replacement when the prayer in the application is for replacing the vehicle with a later model vehicle. Such applications are to be treated as applications for modifying the earlier proposal for replacement and if such course is not permitted, even a person who is able to purchase a new vehicle in course of time will be constrained to operate service with the old model vehicle in respect of which replacement is sought and will be constrained to repeat the process of replacement. Once an operator seeks to substitute the vehicle with a later model vehicle, before orders are passed on the application for WPC 32586/15 & 28293/16 10 replacement, there is no need to go into the question as to whether the earlier vehicle was in his possession or not, for, such an enquiry would only be for the purpose of refusing the application, if any, submitted by him for renewal, which is against the scheme of the statute. The petitioner has no case that the vehicle bearing No.KL-09/F 666 was not a vehicle in the possession of the fourth respondent. As such, once it is found that the application for replacement of the vehicle submitted by the fourth respondent was in order, there was nothing wrong in granting the renewal of the permit sought by the petitioner. The writ petitions, in the circumstances, are devoid of merits and the same are, accordingly, dismissed. ## **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)