Allowed

The Secretary, Regional Transport Authority v. Janardhanan M.V

Kerala HC26 Oct 2022WA/2758/2015

Case brief

AI extract

What is this about?

The Division Bench of the High Court of Kerala allowed a writ appeal against a single judge's order. The court held that issuing a clearance certificate to detach a vehicle from a permit without surrendering the permit is impermissible, affirming the legal position laid down in Abdul Salam.

What did the court decide?

The writ appeal was allowed, setting aside the learned Single Judge's judgment to the extent of the proposition that clearance could be issued without surrendering the permit.

The Secretary, Regional Transport Authority… — Pension and Retirement Benefits | Kerala HC (2022)

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W.A. No. 2758/2015

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 26^TH DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944

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WA NO. 2758 OF 2015

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AGAINST THE JUDGMENT DATED 18.09.2015 IN WPC 27798/2015 OF HIGH

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COURT OF KERALA

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APPELLANT/RESPONDENT IN W.P.©:

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THE SECRETARY, REGIONAL TRANSPORT AUTHORITY KANNUR 670 002 BY ADV SRI. K.P. HARISH, SR. GOVERNMENT PLEADER

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RESPONDENT/PETITIONER IN W.P.©:

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JANARDHANAN M.V AGED 52 YEARS

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S/O. GOVINDAN NAMBIAR, VAYORA HOUSE, KUTTAVU PERUVALATHUPARAMBA P.O, KANNUR – 670 593.

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R1 BY SRI. G. PRABHAKARAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 2758/2015

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S. MANIKUMAR, CJ & SHAJI P. CHALY, J.

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--------------------------------------------------------W.A. No. 2758 of 2015

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--------------------------------------------------------Dated this the 26^th day of October, 2022.

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JUDGMENT

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SHAJI P. CHALY, J.

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The appellant, a State official who is the first respondent in W.P.(C) No. 27798 of 2015, has preferred the captioned appeal, challenging the judgment of the learned single Judge dated 18.09.2015.

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The subject issue arises under the Motor Vehicles Act, 1988 and the Kerala Motor Vehicle Rules, 1989 in regard to the issuance of a clearance certificate for selling a stage carriage bearing No. KL-59/K-7987 operating on the route Kannur-IrittyKuttavu without surrendering or cancelling or transferring permit and by keeping the permit under suspended animation.

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Anyhow, the learned single Judge in the judgment has directed the appellant to grant clearance certificate without insisting on the surrender of the existing regular permit in respect of the vehicle, after ensuring that all dues to the Government, including the check reports, and also to the Kerala Motor Transport Workers Welfare Fund Board, are satisfied.

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In fact, the writ appeal was pending before this Court

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without securing any interim orders for the past 7 years.

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However, the issue with respect to the issuance of clearance certificate without surrendering the existing regular permit was considered by a Division Bench of this Court in Regional Transport Authority v. Abdul Salam [2016 (3) KLT 87 and overruled the said judgment holding as follows:

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“11. The Scheme of the 1988 Act needs to be noted for answering the aforesaid issue.

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Section 2(31) of the 1988 Act defines permit which is to the following effect:

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“2(31) “permit” means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle.”

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Permit thus is a permit issued by the R.T.A. authorizing the use of “a motor vehicle as a transport vehicle.” Permit is thus granted with regard to a motor vehicle. An application for permit as per R.143 of the 1989 Rules has to be made in the prescribed form. For a stage carriage the application has to be made in Form P.St.S.A. Form P.St.S.A. contains a column, i.e., Column 6, which is to the following effect:

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“FORM P.St.S.A.

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Registration mark”

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There is another Rule, R.159 which relates to issuance of permit. R.159(1) provides that no permit shall be issued before entering

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the registration mark.

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R.159(2) further provided that when the applicant is unable to produce the certificate of registration on the date of his application for permit, the applicant shall within one month of the sanctioning of the application by the R.T.A. or such longer period not exceeding four months produce the certificate of registration. R.159(1) is as follows:

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“159. Permits -- Entry of registration marks compulsory. -- Time for entry (1) No permit shall be issued before entering the registration mark of the vehicle to which it relates has been entered therein.”

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Rule 159(2) thus permits an applicant to seek time for submitting the registration mark which can be granted upto four months. As per R.159(1), permit shall not be issued unless entry of registration mark is made in the permit. Thus for issuance of permit, registration mark in the permit is mandatory and permits are issued in reference to a vehicle.

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Section 83 of the 1988 Act permits a holder of a permit with the permission of the authority to replace the vehicle covered by the permit. S.83 is as follows:

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“83. Replacement of vehicles.-- The holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other vehicle of the same nature.”

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Rule 174 of the 1989 Rules relates to replacement of vehicles which is to the following effect:

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“174. Permit-Replacement of vehicles.-- (1) If the holder of a permit desires at any time to replace a vehicle covered by the permit with another vehicle, he shall forward the permit and apply in Form “P.Y.A.” with the fee prescribed in Rule 180 to the Transport Authority which granted the permit

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stating the reasons for the proposed replacement and shall,-(a) if the new vehicle is not in his possession, state the material particulars in respect of which the new vehicle differs from the old; and

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(b) if the new vehicle is in his possession, forward the certificate of registration thereof.

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(2) Upon receipt of the application, the Transport Authority may in his discretion, reject the application-

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(a) if it has previous to the date of receipt of the application given reasonable notice of its intention to reduce the number of Transport Vehicles of that class generally or in respect of the route area to which the permit applies; or (b) if the new vehicle proposed differs in material respect from the old; or

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(d) if the holder of the permit has contravened the provisions thereof or has been deprived of possession of the old vehicle under the provisions of any agreement of hire purchase, hypothecation or lease.

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(3) If the new vehicle proposed does not differ in material respects from the old, the application for replacement of the vehicle may be allowed. If there is material difference between the two vehicles, the application shall be treated as if it were for a fresh permit:

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Note - For the purpose of this rule vehicles which differ by not more than 25 percent of the Gross Vehicle Weight or seating capacity, as the case may be, shall not be considered as materially different.

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(4) If the Transport Authority grants an application far the 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 its seal and signature and return them to the holder.”

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Section 86 of the 1988 Act contains provisions for

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cancellation/suspension of permits.

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S.86 provides as follows:

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“86. Cancellation and suspension of permits.--

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(1) The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit - (a) on the breach of any condition specified in Section 84 or of any condition contained in the permit, or (b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or (c) if the holder of the permit ceases to own the vehicle covered by the permit, or (d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or

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(e) if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purposes for which the permit was granted, or (f) if the holder of the permit acquires the citizenship of any foreign country: Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation.”

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A perusal of Section 86(l)(c) indicates that when the holder of the permit ceases to own the vehicle his licence/permit can be suspended/cancelled.

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When a licence of the permit holder is suspended, he is not authorised to run the vehicle. As per R.185, if the permit is suspended he has to inform the R.T.A. where the vehicle is to be kept during suspension. R.185(1) which is relevant is quoted below:

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“185. Permit.-- Suspension or cancellation – The State or Regional Transport Authority may suspend or cancel the permit of any vehicle. When the State or Regional Transport Authority suspend or cancels a permit-

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(a) the holder shall surrender the permit or the temporary permit, as the case may be, within seven days of the receipt of a demand in writing by the Transport Authority concerned or any Authority authorised by the Transport Authority;

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(b) the holder of the permit shall, if so required by the Regional Transport Authority, intimate to it within 24 hours of the receipt of the order of suspension the place where the vehicle in respect of which the order is passed will be kept during the period of suspension and shall not remove the vehicle from the place so intimated without the prior sanction of the Regional Transport Authority;

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(c) the Transport Authority or any authority authorised by the Transport Authority in this behalf shall record in the permit or on the temporary permit, as the case may be, the order of suspension, cancellation or composition; and

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(d) send intimation to any authority by which the permit has been endorsed or extended if such endorsement or extension is in force at the time of suspension or cancellation.” Further S.87(2) provides that temporary permit can be granted to meet a temporary need and S.87(2)(ii) specifically provides that temporary permit can be granted as a result of suspension of by a Court or other competent authority of the permit. R.152 provides that it shall be a condition of the permit of every transport vehicle that the vehicle shall be so maintained as to be available for the service for which the permit was granted for the entire service.

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Rule 152 is quoted below:

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“152. Failure to use transport vehicle. - It shall be a condition of the permit of every transport vehicle (other than a private service vehicle permit that the vehicle shall be so maintained as to be available for the service for which the permit was granted, for the entire period of currency of the permit and that the permit is liable to be suspended or canceled, after due notice to the permit holder, if the vehicle has not been used for the purpose for which the permit was granted, for any day in the case of a stage carriage unless a reserve bus duly authorised in this behalf has conducted substitute service in the place of the route-bus which defaulted service, and for a continuous period of fifteen days or more in the case of other transport vehicles, during the period for which the permit authorises the use of the vehicle on the road, unless the State or Regional Transport Authority is satisfied that the permit holder was prevented by

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sufficient cause from running the service or that the permit holder had obtained the previous permission of the State or Regional Transport Authority to suspend the service for such period during which the vehicle was not operated.”

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Permit holder is entitled to surrender his vehicle after notice to the R.T.A. R.217 deals with obtaining sanction when permit holder wants to withdraw before the expiry of the permit the services which the vehicle covered by the permit was providing.

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R.217 is quoted below:

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“217. Withdrawal of bus from service -- If the holder of a stage carriage permit proposes to withdraw before the expiry of the permit the service which the vehicle covered by the permit is providing, he shall, unless prevented by unavoidable circumstances, give at least one month’s notice of his intention to the Transport Authority which issued the permit, and shall surrender the permit on the date from which the service are withdrawn. Upon receipt of the notice, the Transport Authority shall post a copy of the notice on the notice board of the Authority.”

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The above statutory provisions clearly indicate that the permit holder is specifically obliged to keep the vehicle ready and in use for the entire period of permit. In the event he transfers the vehicle and loses ownership of the vehicle, permit can be suspended or cancelled. When a permit is suspended, temporary permit can be granted. Object is that service covered by permit should always be run for the benefit of the public and permit holder has an obligation to run the service and in the event he wants to withdraw from service, he has to surrender the permit with notice so that the authorities can make proper arrangement. In the appeals before us the request of the petitioners is to issue a clearance certificate permitting them to withdraw/detach the vehicle from the permit and allow the permit to continue. The petitioners want to keep their permits alive, so that in future if they want they can revive the service. There is no prohibition under the 1988 Act and the 1989 Rules for

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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, petitioners want to obtain permission of the authority to detach the vehicle from the permit which is not permissible under the statutory scheme.

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To accept the contention of the petitioners that they are entitled to receive clearance certificate from the authority to detach the vehicle from the permit to use the vehicle for any other permit or other purpose including transfer of the vehicle is to allow the permit which was held by them to remain unserved causing prejudice to the general public whom transport services are provided and regulated by the authority. Request from the petitioners for keeping the permit under suspended animation may range from months to years and permitting such request is nothing but denying the use of services by the general public. Petitioners did not want their permits to be kept under suspension. Since in the event of permit holder loses ownership of the vehicle, power of suspension is granted under S.86 and on suspension temporary permit can be issued on the route. Petitioners wanted their permits to remain alive without it being suspended and detach the vehicle for the use of the vehicle for some other purpose which is clearly contrary to the object and purpose of the 1988 Act and the 1989 Rules as noted above.”

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Therefore, it is clear from the judgment in Abdul Salam (supra) that the view adopted by the learned single Judge was overruled by the Division Bench on 6^th April, 2016. It is informed by the learned Senior Government Pleader Sri. K.P. Harish that the judgment of the Division Bench in Abdul Salam (supra) even now

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holds the field. In the light of the judgment in Abdul Salam , which we are in respectful agreement, instant appeal is to be allowed. Needless to say, all necessary consequential actions shall also follow in terms of this judgment and the principles of law laid down by the Division Bench in Abdul Salam (supra).

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Therefore, the appeal is allowed, making it clear that the judgment of the learned single Judge shall not stand in the way of the authorities implementing the provisions of the Act, 1988, the Rules, 1989 and in accordance with the proposition of law laid down in the judgment in Abdul Salam (supra).

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/-

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SHAJI P. CHALY, JUDGE.

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The Secretary, Regional Transport Authority v. Janardhanan M.V

Case brief

What is this about?

What did the court decide?

The Secretary, Regional Transport Authority v. Janardhanan M.V

Case brief

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