Allowed

Surya Sankaranarayanan v. the Regional Transport Authority

Kerala HC15 Jul 2016WP(C)/7548/2016

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging an order granting renewal and vehicle replacement to a bus service. It held that a rival operator has locus standi to challenge violations of statutory provisions. The Court quashed the order, ruling that a permit renewal cannot be granted without a ready vehicle.

What did the court decide?

Ext.P3 order quashed; authority directed to consider renewal application within six weeks of receipt.

Surya Sankaranarayanan Vs the Regional Transport… — Writ and Judicial Review | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938

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WP(C).No. 7548 of 2016 (P)

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PETITIONER :

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SURYA SANKARANARAYANAN

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AGED 36, S/O.SANKARANARAYANAN, 6/379, IRIKKALIL HOUSE, THANNIAM, THRISSUR, PIN - 680 565.

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BY ADVS. SRI.M.JITHESH MENON

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RESPONDENTS :

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1. THE REGIONAL TRANSPORT AUTHORITY THRISSUR, PIN - 680 001.

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2. THE SECRETARY REGIONAL TRANSPORT AUTHORITY, THRISSUR, PIN - 680 001.

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3. THE MANAGING PARTNER MANIKANDAN BUS SERVICE, M.G.ROAD, THRISSUR-680 001.

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R1 & R2 BY SR. GOVT. PLEADER SMT. K.A. SANJEETHA R3 BY ADV. SRI.SAJEEV KUMAR K.GOPAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2016, THE COURT ON 15-07-2016 DELIVERED THE FOLLOWING:

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...2/-

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WP(C).No. 7548 of 2016 (P)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1. TRUE COPY OF THE REGULAR PERMIT DATED 23.07.2015.

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EXHIBIT P2. TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.17499/2015 DATED 17.06.2015.

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EXHIBIT P3. TRUE EXTRACT OF THE ORDER DATED 03.10.2015 RELATING TO ITEM 168.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

SHAJI P. CHALY, J. ----------------------------------------------- W.P.(C). No.7548 of 2016

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----------------------------------------------Dated this the 15^th day of July, 2016

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JUDGMENT

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This writ petition is filed by the petitioner seeking to quash Ext.P3 order passed by the 1^st respondent whereby renewal of regular permit and replacement of vehicle was granted to the 3^rd respondent and for other related reliefs.

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Necessary facts for the disposal of the writ petition are thus; petitioner is an existing operator in respect of stage carriage No.KL-8 AN 2552 on the route Chemmanampathy - Ayyanthole via.Govindapuram, Kollengode, Nenmmara, Vadakkanchery, Vaniampara and Pattikkad as Limited Stop Ordinary Service (LSOS). The 3^rd respondent had a regular permit to operate on the route Govindapuram - Guruvayoor in respect of stage carriage No.KL-8/Z.9119 and valid till 3.9.2012. Even before the expiry of the regular permit, 3^rd respondent defaulted operation and the vehicle was garaged

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W.P.(C). No.7548 of 2016

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and tax exemption was also sought. Subsequently, the vehicle was dismantled and scrapped and hence the same ceased to be in existence.

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is further contended that, 3^rd respondent had thereafter filed a belated application for renewal and moved this court by filing W.P.(C) No.17499/2015 and secured Ext.P2 judgment, directing the application for renewal to be considered in the next meeting. Third respondent also filed an application for replacement and both the applications were considered simultaneously by the 1^st respondent in the meeting held on 3.10.2015. Now, by Ext.P3 order, the renewal and replacement has been granted through a single order. According to the petitioner, Ext.P3 is unjustifiable and illegal in view of the fact that the application for renewal was submitted by the 3^rd respondent by specifying the vehicle which was not in existence at the time of submission of the application for renewal. That apart it is urged that such application for renewal is not maintainable and such permits

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W.P.(C). No.7548 of 2016

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are not renewable in the light of the judgment rendered by this court in Usman v. Regional Transport Authority [2015 (4) KLT 25] and affirmed in Jaffer v. Usman [2015(4) KLT 590].

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That apart it is also contended that the practice of simultaneous consideration of the application for renewal and replacement has also been deprecated by this court and the renewal has been granted subject to concurrence of the sister authority which is also a procedure not contemplated by the Act and Rules since concurrence has to be obtained only prior to the consideration of the application for renewal. Therefore, aggrieved by Ext.P3, petitioner has approached this court by filing this writ petition.

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Third respondent has filed a counter affidavit refuting the allegations and claims and demands made by the petitioner in the writ petition. The paramount contention raised in the counter affidavit is that, an existing stage carriage operator has no locus standi to challenge the grant of renewal and replacement. According to the 3^rd respondent,

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the said issue is settled as per the judgment of the Apex Court in Mithilesh Garg vs. Union of India [AIR 1992 SC 443]. That the petitioner has got an adequate and effective alternative remedy by way of revision before the State Transport Appellate Tribunal under Section 90 of the Motor Vehicles Act and the petitioner has not highlighted any special circumstances to maintain the writ petition overlooking the statutory remedy provided. That apart it is also contended that petitioner has not made out anything in the writ petition as to how the petitioner is aggrieved by Ext.P3 order. It is also contended that no fundamental rights of the petitioner is violated so as to invoke Article 226 of the Constitution of India. Further it is contended by the 3^rd respondent that, the petitioner's application for renewal of regular permit was pending consideration before the Regional Transport Authority and in the meanwhile, 3^rd respondent was operating on the basis of temporary permit. Thereafter 3^rd respondent purchased a new vehicle bearing registration No.KL-08/AB7005 and made an application for replacement also.

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W.P.(C). No.7548 of 2016

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Temporary permits were continuously issued to the new vehicle and last temporary permit issued was valid upto 20.3.2016.

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Since there was delay in consideration of the application for renewal of the regular permit, 3^rd respondent has approached this court and secured Ext.P2 judgment, is the contention. According to the 3^rd respondent, the contention raised by the petitioner that, the original vehicle owned by the 3^rd respondent is sold as scrap is incorrect. The vehicle covered with permit is still in the garage of the 3^rd respondent and it has never been sold or dismantled. Petitioner has submitted a complaint stating that the 3^rd respondent has dismantled the vehicle and approached this court by filing W.P.(C) No.10445/2016. On the basis of the direction, the matter was enquired into and it was found that the vehicle is in existence but there is some discrepancy regarding the engine number. So 3^rd respondent contends that the averments of the petitioner that the vehicle is not in existence cannot be sustained. According to the 3^rd

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respondent, the petitioner made an attempt to purchase the vehicle owned by the 3^rd respondent and later withdrew from the said attempt and the action of the petitioner is ill motivated. It is also contended that the judgment of Usman cited supra is not applicable to the facts of the present case.

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Petitioner has filed a reply to the counter affidavit refuting the contentions and also denying the allegations made against the petitioner in the counter affidavit.

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Heard learned counsel for the petitioner, learned Senior Government Pleader and learned counsel appearing for the 3^rd respondent.

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Learned counsel for the petitioner reiterated the contentions. That apart it is contended that the judgment of this court in Usman was taken up in appeal and was confirmed by a Division Bench of this Court in Jaffer v. Usman [2015(4) KLT 590] and therefore, the application for renewal of regular permit and replacement of vehicle cannot be considered by the authority together. It is also contended by the learned counsel for the petitioner that if only there is

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W.P.(C). No.7548 of 2016

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vehicle, a renewal of permit can be permitted. The 3^rd respondent did not have a vehicle at its disposal so as to seek renewal of the permit. Learned counsel has taken me through the judgment in Usman and further canvassed that only a holder of permit with respect to a vehicle can apply to replace the vehicle. That apart learned counsel has invited my attention to the Larger Bench judgment of this court in Ratheesh v. Regional Transport Authority [2015(1) KLT 248 (L.B.) to canvass the proposition that if a statutory provision is violated, any person can invoke either Section 90 of the Motor Vehicles Act or the writ jurisdiction or the writ appellate jurisdiction of this court. Therefore, the counsel contends that the action of the 1^st respondent as per Ext.P3 cannot be sustained under law since the 3^rd respondent did not have a vehicle while filing the application for renewal of permit. According to the learned counsel, no application for renewal of permit without registration mark of the vehicle to be covered by the permit, is the provision under the Rules. Therefore, counsel contends that Ext.P3 cannot be sustained

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under law.

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Per contra learned Government Pleader submitted that in terms of the judgment in Usman and confirmation of the same in appeal by a Division Bench of this court cited supra, Ext.P3 cannot be sustained under law. However, learned counsel for the 3^rd respondent contended that petitioner has no locus standi to challenge Ext.P3 order since he is a rival operator. That apart it is also contended that the facts and circumstances in the case of Usman is entirely different from the fact situation available in this case. The predominat contention advanced by the learned counsel is that, petitioner has a efficacious remedy by invoking the revisional jurisdiction of the State Transport Appellate Tribunal, under Section 90 of the Motor Vehicles Act. Moreover, petitioner has not made out any case to invoke the writ jurisdiction of this court under Article 226 of the Constitution of India. On facts, it is contended by the learned counsel that, the original vehicle with registration No.KL-08 AZ 9119 is still with the 3^rd respondent in the garage and therefore,

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it cannot be said that 3^rd respondent has scrapped the vehicle and sold it. However, it is the contention of the 3^rd respondent that at the time of submitting application for renewal there is a ready vehicle available with the 3^rd respondent and therefore, the petitioner is not entitled to contend that 3^rd respondent did not have a vehicle while submitting application for renewal of permit.

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On an evaluation of the facts and circumstances and rival submissions made across the Bar and perusal of the pleadings and documents, the questions to be considered are whether (1) petitioner has locus standi to file this writ petition and seek to quash Ext.P3 order ? (2) Ext.P3 order can be sustained under law in view of the judgment in Usman cited supra ?

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So far as the first question is concerned, the said issue is covered by the Larger Bench judgment of this court in Ratheesh cited supra wherein this court held that if any statutory provision is violated, any person can invoke the revisional jurisdiction, writ jurisdiction or writ appellate jurisdiction of this court. In that view of the matter also, the

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contention advanced by the 3^rd respondent that the petitioner has not made out any circumstance to invoke the writ jurisdiction of this court cannot be sustained. It is also well settled proposition of law that an alternative remedy is not a bar to invoke the writ jurisdiction. Admittedly there is violation of statutory provisions and thereby an arbitrary and illegal order is passed by the 1^st respondent. Therefore, in my considered opinion petitioner has made out a case to invoke the writ jurisdiction of this court. In that view of the matter, contention raised by the 3^rd respondent that petitioner has no locus standi to approach this court cannot be sustained. True, petitioner is a rival operator. But petitioner is not challenging Ext.P3 order on the basis of any commercial interest. Even the 3^rd respondent is not having a case that petitioner has any commercial interest in the matter. That being the situation, I have no hesitation to hold that petitioner has invoked writ jurisdiction of this court on the basis of the violation of the statutory provision while issuing Ext.P3 order.

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Now coming to the 2^nd question, whether the renewal of

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W.P.(C). No.7548 of 2016

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permit can be granted without a vehicle. According to the petitioner, 3^rd respondent has scrapped the vehicle and sold the same. But however, the same is disputed by the 3^rd respondent contending that, 3^rd respondent has not sold the vehicle but the same is in the garage and due to some discrepancies with respect to punching of engine number locally, an enquiry is going on. Admittedly, even according to the 3^rd respondent there was no ready vehicle available with him while seeking renewal of permit. When the renewal of the permit is sought, the mentioning of the registration mark in the application is a necessary requirement and a mere mentioning of a number alone is not sufficient. There should be a ready vehicle available with a person seeking renewal of permit in order to operate the vehicle as per the regular permit.

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On evaluating the facts and circumstances in that manner, it can be seen that even according to the 3^rd respondent, there was no ready vehicle available with the 3^rd respondent for renewal of the permit. Therefore, in my considered opinion, going by the judgment in Usman confirmed in writ appeal, it is categoric and clear that a composite order passed by the 1^st

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respondent by granting renewal of permit and replacement of vehicle cannot be sustained under law. Therefore, Ext.P3 is liable to be quashed. Accordingly I quash Ext.P3 order. However, the same will not stand in the way of the 1^st respondent considering any application submitted by the 3^rd respondent for renewal of the permit in accordance with law. If any such application is filed, the same shall be considered by the authority, and pass necessary orders consequentially also at the earliest and at any rate within a period of six weeks from the date of receipt of a copy of any such application.

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Writ petition is allowed, with the above observations and directions.

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Sd/-

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SHAJI P. CHALY JUDGE

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smv 05.07.2016

Surya Sankaranarayanan v. the Regional Transport Authority

Case brief

What is this about?

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Surya Sankaranarayanan v. the Regional Transport Authority

Case brief

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