Dismissed

K.J.Ajaz v. the Secretary

Kerala HC8 Apr 2021WP(C)/786/2021

Case brief

AI extract

What is this about?

The High Court of Kerala held that the Regional Transport Authority is justified in directing the petitioner to produce current records of the outgoing vehicle before granting a replacement permit. Relying on Rule 174 of the Kerala Motor Vehicles Rules 1989, the Court dismissed the writ petition seeking to relax this statutory requirement.

What did the court decide?

Petitioner directed to produce documents as prescribed; application to set aside the requirement was dismissed.

K.J.Ajaz Vs the Secretary — Company and Corporate | Kerala HC (2021)

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W.P.(C) No.786/2021

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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 SUNIL THOMAS

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THURSDAY, THE 8TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

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WP(C).No.786 OF 2021(W)

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PETITIONER:

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K.J.AJAZ, AGED 32 YEARS S/O. K.M.JAMAL, D-14.1A, KUTTIKKATTU HOUSE,

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UDYOGAMANDAL P.O., ALUVA

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BY ADV. SHRI.P.DEEPAK

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RESPONDENT:

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THE SECRETARY REGIONAL TRANSPORT AUTHORITY, ERNAKULAM, REGIONAL TRANSPORT OFFICE, KAKKANAD, KERALA-682 030

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R1 BY GOVERNMENT PLEADER BIMAL K.NATH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-03-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:

W.P.(C) No.786/2021

JUDGMENT

Dated this the 8^th th day of April 2021

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The petitioner is the registered owner of a stage carriage bearing registration number KL-02-Y-9528, evidenced by Ext.P1 certificate of registration. By Ext.P2 proceedings of Regional Transport Authority, Ernakulam dated 1-2-2020, Ext.P3 regular stage carriage permit bearing number P.S.T.7/10019/2003 in the name of one Kunju Muhammed was transferred to the name of the petitioner. The vehicle covered by Ext.P3 permit was one with registration No.KL-07-AT-1401 standing in the name of the said Kunju Muhammed. The registration certificate of the said vehicle is Ext.P4.

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The petitioner proposed to operate his stage carriage No. KL-02-Y-9528 covered by Ext.P1 certificate on the strength of Ext.P3. Accordingly, Ext.P5 application was submitted by him under section 83 of the Motor Vehicles Act 1988, for replacement of vehicle No. KL-07-AT-1401 with KL-02-Y-9528. According to the petitioner, if the above application is sanctioned and replacement allowed, the transfer of the permit to the name of the petitioner and replacement of the vehicle covered by the permit can be endorsed simultaneously. The grievance of the petitioner is that the respondent, who is authorized to consider the above applications and to grant it in appropriate cases, is taking the stand that Ext.P5 application can be entertained only if the records in relation to the outgoing vehicle KL-07-AT-1401 are made current.

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W.P.(C) No.786/2021

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Contending that the above is an untenable condition and that Rule 174 of the Kerala Motor Vehicles Rules 1989, only prescribes the production of the current records of the incoming vehicle, petitioner has approached this court through this writ petition. It is contended that, in an identical situation, this court has passed orders permitting such transfers without insisting for production of the current records of the outgoing vehicle. The petitioner specifically relied on the judgment of this Court in W.P.(C) No.11581/2014.

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Opposing the writ petition, the learned senior Government Pleader contended that, the above requirement is a statutory requirement which cannot be dispensed with. It was contended that, several situations may arise wherein the vehicle may have been withdrawn from the road, or is not available or dismantled or for reasons known to the petitioner withdrawn from service. Further, whether the vehicle is involved in other cases and also taxes have been remitted are all factors which may play a significant role in considering the above application. It was contended that, the authority is legally bound to insist the production of the current records of the outgoing vehicle and it is a statutory duty cast on the authority.

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The learned counsel for the petitioner strongly placed reliance on the judgment in W.P.(C) No.11581/2014. That was a case wherein the vehicle covered by the regular permit was more than 15 years old. He had requested for replacing the vehicle with a new vehicle. He was conducting the service of the said vehicle on the same route on the strength of a temporary permit issued to him. He was directed by the authority to produce current records of both the

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W.P.(C) No.786/2021

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outgoing and incoming vehicles for consideration of his application for substituting the vehicle. This court taking note of the specific fact that the petitioner was issued with temporary permit in respect of the vehicle, that a new vehicle was offered for conducting the service, that the temporary permit was due for expiry and having regard to the special circumstances that the vehicle had crossed 15 years of age, found that the request of the petitioner to substitute the vehicle cannot be found fault with. It was also noted that the authorities were certainly at liberty to insist that the dues payable by the petitioner by way of tax as well as contribution to the welfare funds applicable, are cleared. However, it was held that the insistence on production of the correct records of the outgoing vehicle was unnecessary. It seems that the above order was passed in the peculiar facts and circumstances of the case. It seems that the legal issue involved in the present case was neither advanced by both sides, nor considered by this court.

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Learned senior Government Pleader specifically referred to the Division Bench decision of this Court in RTA v. Abdul Salam (2016 (3) KLT 87) wherein this court while considering Rule 159,171 and 217 held that there was no provision under the 1988 Act and the 1989 Rules preventing a permit holder from withdrawing the vehicle from the service, but in that event he has to surrender the permit. It was held that the request involved in that case was for issuing clearance certificate for permitting them to withdraw /detach the vehicle from the permit and allow the permit to continue. Petitioners wanted to keep their permit alive, so that in future, if they want, they could revive the service. It

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W.P.(C) No.786/2021

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was held that there was no prohibition under the 1988 Act and the 1989 Rules for a permit holder in withdrawing the vehicle from the service, but in that event he has to surrender the permit. But without surrendering the vehicle, petitioner wants to obtain the permission of the authority to detach the vehicle from the permit it was held to be not permissible under the statutory scheme.

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Coming to the specific issue involved in this case, the specific contention of the petitioner is that Rule 174 of the Kerala Motor Vehicle Rules 1989, prescribes that if the transport authority grants an application for replacement of the vehicle, it shall call upon the holder of the permit to produce the certificate of registration of the new vehicle, if not previously delivered to it and shall make necessary entries in this regard in the permit under the seal and signature and return them to the holder. This applies to a situation wherein application for replacement of the vehicle is granted. However, the relevant provision seems to be Rule 174 (1) which provides that if the holder of a permit decides at any time to replace the vehicle covered by the permit with another vehicle and forward the permit and apply in form PVA with the prescribed fee to the authority which granted the permit stating the reason for the replacement and furnish the details mentioned in Rule 174 (1). Evidently, discretion is cast on the authority, which he has to exercise on cogent reasoning.

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7.Form PVA relates to the application for replacement of the vehicle /variation of the condition of the permit. It is in the form of a joint application by parties to the transaction. The enclosure attached to the above form is relevant. The enclosures along with Form PVA relates to the registration certificate of the

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W.P.(C) No.786/2021

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vehicle and the permit. This clearly shows that along with the application, mandatory condition is that the registration of certificate of the outgoing vehicle and the permit is liable to be produced. Rule 174(2) confers a discretion on the transport authority to reject the application for replacement of the vehicle, if the conditions therein exist. Under Rule 174 (2)(d), authority has to satisfy that condition of permit are not violated and the permit holder is not deprived of his possession.

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Considering the above provisions cumulatively, it is evident that the authority can direct production of current records. Once the application is allowed, the applicant is liable to produce the registration certificate of the incoming vehicle. This makes the statutory provision clear that the stand taken by the authority is justified. Hence there is no scope for any direction as sought in the writ petition. The petitioner shall produce the documents as prescribed and accordingly, if it is so produced, the authority shall proceed with the consideration of the application in accordance with law.

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The writ petition is accordingly dismissed.

Sd/-

SUNIL THOMAS

JUDGE

dpk

W.P.(C) No.786/2021

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF KL-02-Y-9528 EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS OF THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM DATED 01.02.2020 WITH LEGIBLE MANUSCRIPT COPY EXHIBIT P3 A TRUE COPY OF THE REGULAR PERMIT VALID TILL02.04.2023 EXHIBIT P4 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF KL-07-AI-1407 EXHIBIT P5 A TRUE COPY OF THE APPLICATION FOR REPLACEMENT DATED 07.01.2021 EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 22.05.2014 IN WPC NO.11581 OF 2014

K.J.Ajaz v. the Secretary

Case brief

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K.J.Ajaz v. the Secretary

Case brief

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