Kerala High Court
K.J.Ajaz vs The Secretary on 8 April, 2021
W.P.(C) No.786/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 8TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(C).No.786 OF 2021(W)
PETITIONER:
K.J.AJAZ,
AGED 32 YEARS
S/O. K.M.JAMAL, D-14.1A, KUTTIKKATTU HOUSE,
UDYOGAMANDAL P.O., ALUVA
BY ADV. SHRI.P.DEEPAK
RESPONDENT:
THE SECRETARY
REGIONAL TRANSPORT AUTHORITY, ERNAKULAM, REGIONAL
TRANSPORT OFFICE, KAKKANAD, KERALA-682 030
R1 BY GOVERNMENT PLEADER BIMAL K.NATH
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 2
JUDGMENT
Dated this the 8th th day of April 2021
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.
2. 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.
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.
3. 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.
4. 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
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.
5. 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
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.
6. 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.
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
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.
8. 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.
The writ petition is accordingly dismissed.
Sd/-
SUNIL THOMAS
dpk JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
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
