Jyothi vs The Regional Transport Authority ...
2021 Latest Caselaw 23916 Ker

W.A.No. 706/2021                    :1:



               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                     &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

     MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943

                             WA NO. 706 OF 2021

AGAINST THE JUDGMENT DATED 30.03.2021 IN WP(C) 6516/2020 OF HIGH COURT

                                 OF KERALA

APPELLANT/WRIT PETITIONER:

           JYOTHI,
           AGED 42 YEARS
           11/112, VADAKKATHU VALAPPIL HOUSE, THAVANNOOR P.O. PONNANI,
           MALAPPURAM.

           BY ADV P.DEEPAK



RESPONDENTS

     1     THE REGIONAL TRANSPORT AUTHORITY MALAPPURAM,
           REPRESENTED BY ITS SECRETARY, REGIONAL TRANSPORT OFFICE,
           CIVIL STATION, MALAPPURAM 676 504.

     2     THE SECRETARY,
           REGIONAL TRANSPORT AUTHORITY REGIONAL TRANSPORT OFFICE,
           CIVIL STATION, MALAPPURAM 676 504.

           BY ADV GOVERNMENT PLEADER




           SRI.K.P.HARISH, SR GOVERNMENT PLEADER




      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2021, THE

     COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No. 706/2021                     :2:




                     Dated this the 13th day of December, 2021.

                                   JUDGMENT

SHAJI P. CHALY,J.

This appeal is preferred by the petitioner in W.P.(C) No. 6516 of

2020 challenging the judgment of the learned single Judge dated

30.03.2021 in the aforesaid writ petition, whereby the learned single

Judge dismissed the writ petition and declined the following reliefs

sought for:

1. Issue a writ in the nature of certiorari or such other writ, order or direction calling for the records leading to Ext.P7 and quash the same.

2. Issue a writ in the nature of mandamus or such other writ, order or direction commanding the first respondent to forthwith grant the renewal of permit and replacement of vehicle as ordered by the State Transport Appellate Tribunal vide Ext.P5 judgment.

2. Brief material facts for the disposal of the appeal are as

follows:

The appellant is a stage carriage operator operating the service

on the strength of Ext. P1 permit dated 14.06.2013, which was valid

from 03.01.2009 to 02.01.2014 and subsequently renewed and

extended upto 02.01.2019, granted by the Regional Transport

Authority, Malappuram-- first respondent. Later, she filed an

application under Section 83 of the Motor Vehicles Act, 1988 ('Act,

1988' for short) for replacing the vehicle covered by Ext. P1 regular

permit with a suitable other vehicle of the same nature. However, the

appellant's application for replacement was rejected by the first

respondent vide Ext. P5 proceedings dated 10.07.2019 on the ground

that the seating capacity of the proposed incoming vehicle offered for

replacement is 31 in all; whereas, the seating capacity of the primary

vehicle i.e., the vehicle originally issued with Ext. P1 permit, had a

seating capacity of 43, and therefore the difference in the seating

capacity exceeds 25%; and accordingly reckoned the vehicle

materially different, and rejected the application as provided under

Rule 174(2) (b) of the Kerala Motor Vehicles Rules, 1989 ('Rules, 1989'

for short). Being aggrieved, Ext. P5 decision passed by the first

respondent was impugned before the State Transport Appellate

Tribunal in a statutory appeal filed under Section 89 of the Act, 1988.

3. According to the appellant, it was contended before the

Tribunal that the primary vehicle having a seating capacity of 43 in all

had been replaced subsequently with the existing vehicle covered by

Ext. P1 permit, having a seating capacity of 33 in all. The case of the

appellant is that the aforesaid contention was accepted by the Tribunal

and by Ext. P6 judgment dated 31.10.2019, Ext. P5, decision of the

first respondent was set aside and directed to reconsider the

application for replacement as well as renewal on merits and pass

orders in accordance with law. But, it was made clear that the first

respondent shall grant renewal and replacement, if there was no other

legal impediment. The contention of the appellant is that in spite of

the directions so issued, the first respondent, as per Ext. P7 decision

dated 07.01.20220, again rejected the application for replacement

stating that there is material difference between the primary vehicle

and the proposed incoming vehicle. In arriving at Ext. P7 decision, the

first respondent placed reliance on the judgment of this Court in

Rapheal Mathew v. the Secretary, Regional Transport Authority

[unreported judgment of this Court dated 13.03.2015 in W.P.(C) No.

5728 of 2015 and connected cases] to substantiate its finding that the

difference in seating capacity has to be reckoned with respect to the

primary vehicle. It was, thus, challenging Ext. P7 decision of the first

respondent, the writ petition in question was filed.

4. The learned single Judge, after considering the contentions

advanced by the appellant as above, has dismissed the writ petition

basically holding that on a reasonable interpretation of Section 83 of

the Act, 1988 and the Rule 174 of the Rules,1989 and the note

attached to it, it is evident that it is a clarification intended to ensure

that by a gradual process of successive replacement, the original

vehicle cannot be replaced with a much substantially different vehicle;

otherwise if the incoming vehicle has to be compared with the existing

vehicle, if the difference does not exceed 25% at one stretch, by

successive replacements, one can replace even with a new vehicle

100% different from the primary vehicle still maintaining the

difference of 25% between two successive vehicles; and that seems to

be not the intention of the statue. Therefore, the learned single Judge

found that Ext. P7 impugned order passed by the first respondent was

in accordance with law.

5. In fact, the Secretary, Regional Transport Authority,

Malappuram, the second respondent, has filed a detailed statement

and a counter affidavit refuting the allegations and supporting the

order passed by the Regional Transport Authority, and in the

statement, history of the vehicle and service operated by the appellant

is detailed at paragraph 3, and it reads thus:

3. It is submitted that the stage carriage, KL 08 Z 3969, stands registered in the name of petitioner and was operating on the route, Pengamuck- Kuttipuram, Via Chirakkal , Pazhanji, Porkulam, Parembadam, Kunnamkulam, Perumbilab, Changaramkulam, Edappal, Kalady And Nadakav as Ordinary Stage vide Permit No. 10/51/1994/M, which was

valid from 03.01.2014 to 02.01.2019. The permit holder applied for the replacement of the Permit to a later model stage carriage, KL 54 L 2343 on 16.02.2019 i.e., only after the expiry of permit. On verification of the records, it was found that the material difference between the stage carriages was beyond 25 %. The Primary permit was to the Stage Carriage, KLL 8888 with seating Capacity, 43 in all. The seating capacity of the vehicle, KL 54 L 2343, which has been produced for replacement, is 31 in all. Since, the material difference in terms of seating capacity is beyond 25%, the matter was placed before the R.T.A. Meeting held on 10.07.2019, as item no. 83. Meanwhile, the application for the renewal of permit was submitted, which was also pending.

6. It was also submitted that the permit holder has submitted

an application for replacement of vehicle with a lesser seating capacity

than its primary vehicle, which is having a seating capacity of 43; that

the permit holder has presently applied for replacement of vehicle with

a seating capacity of 31 and thus, the material difference between two

vehicles is more than 25%; that the right to replace the vehicle has

been dealt with under Section Section 83 of the Act, 1988, whereby

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; that Rule 174 of the

Rules, 1989 has to be read with Section 83 of the Act, 1988, and on a

conjoint reading of the provision, it is clear that the material difference

with more than 25% need not be entertained for replacement.

7. That apart, it was contended that the appellant has increased

the seating capacity of the incoming vehicle bearing registration No. KL

08 Z 3969, the permit of which expired on 03.01.2019; and that the

renewal of the permit was granted by the Regional Transport Authority,

Malappuram in its meeting held on 07.01.2020 and the said decision

was communicated to the appellant. But, in spite of the direction for

producing the current records of the vehicle KL 08 Z 3969, the

appellant kept the vehicle in non use intimation, in form G.

8. That apart, it is pointed out that the vehicle is in continuous

form G for the period from 01.05.2019 to 31.12.2020 and from

01.07.2021 to 30.06.2022. The service verification reports dated

27.01.2021, 27.02.2021, 27.10.2021 and 10.07.2021 are produced

and marked as Ext. R2(a) to R2(d) and the other records are produced

to show that the tax exemption was granted to the appellant. That

apart, it is pointed out that Section 15 of the Kerala Motor Vehicles

Taxation Act, 1976 clearly stipulates that the validity of the permit of a

transport vehicle will become ineffective on non payment of tax within

the stipulated time period.

9. It is also contended that as per Section 83 of Act, 1988 and

Rule 174 of the Rules, 1989, only the holder of a permit can apply for

the permission of the Regional Transport Authority to replace its

vehicle having permit with any other vehicle and therefore, when a

person seeks replacement of the vehicle under a permit, he must keep

the permit effective as on the date of the said application. It is further

submitted that the permit of the vehicle in question has expired on

02.01.2019: however the replacement application was filed only on

16.02.2019, but without paying the tax in respect of the vehicle

covered under the permit and therefore, the permit holder is not

entitled to seek replacement of the vehicle covered under the permit.

10. That apart, it is contended that at the time of filing of the

application, and while considering the replacement application by the

authority on 10.07.2020, the appellant had not paid the arrears of tax

and therefore, the permit was ineffective and thus, the appellant

ceased to be a holder of a regular permit and his application under the

above provisions cannot be considered. Therefore, according to the

respondents, the prayer to reconsider the replacement application,

which was rejected by Ext. P7, cannot be sustained in the light of the

facts and circumstances pointed out above.

11. It is further contended that the appellant deliberately

omitted to mention that the renewal of permit was granted by the

Regional Transport Authority, Malappuram in its meeting held on

07.01.2020, but the current records of the vehicle bearing No.KL 08 Z

3969 was not produced for the purpose of endorsing the granted

renewal of permit. It is also pointed out that the certificate of fitness

of the vehicle has also expired on 10.04.2019 and since the permit is

not in existence, there is no valid permit to reconsider the replacement

application at present. Therefore according to the respondents the

appellant has not made out any case for interference with the

judgment of the learned single Judge.

12. The paramount contention advanced by the appellant in the

appeal is that the learned single Judge has lost sight of the fact, that the

finding in Ext. P8 judgment in W.P.(C) No. 5728 of 2015 and connected

cases, that Rule 174 of Rules, 1989, even as it exists now, could be

interpreted in such a manner that the material difference is to be related

to the original vehicle, is clearly an obiter, and there is no precedential

value to have been followed; and that the learned single Judge erred in

overlooking Ext. P9 draft Rules published by the rule making authority

proposing suitable amendments to Rule 174 of the Rules, 1989 so as to

reckon the material difference between the vehicles in relation to the

primary vehicle. It is also contended that Section 83 of Act, 1988 and

Rule 174 of the Rules, 1989, as it stands today, is absolutely clear and

unambiguous and the phraseology used in both the provisions is vehicle

'covered' by the permit and not original vehicle covered by the permit or

'primary vehicle' and therefore, the finding of the learned single Judge

that the vehicle produced by the appellant for replacement exceeds 25%

as contemplated under Rule 174 of the Rules, 1989, cannot be sustained

under law.

13. It is further contended that the learned single Judge went

wrong in considering Ext. P8 judgment rendered by the learned single

Judge of this Court in W.P.(C) No. 5728 of 2015, since the observation

contained thereunder is only obiter, and therefore it could not have been

relied upon to substantiate the findings of the learned single Judge.

14. On the other hand, the learned Senior Government Pleader,

submitted that the stand adopted by the Regional Transport Authority

is correct, since the same is passed, taking into account the applicable

provisions of law and therefore, the judgment rendered by the learned

single Judge upholding the order passed by the Regional Transport

Authority cannot be found fault with at all.

15. We have heard, Shri. P. Deepak appeared for the appellant,

and learned Senior Government Pleader Sri. K.P. Harish for the State

officials, who have addressed arguments in accordance with the

respective submissions recorded above, and perused the pleadings and

materials on record.

16. The issue with respect to the replacement of the vehicle is

guided by Section 83 of the Act, 1988, which reads thus:

"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."

17. On a reading of the said provision, it is clear that the vehicle

that is offered for replacement shall be of the same nature, which is,

no doubt, a definite requirement under law. In fact, the State

Government has introduced the Rules to implement the provisions of

Act, 1988. Rule 174 of the Rules, 1989 deals with 'replacement of

vehicles' and it reads thus:

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.V.A." with the fee prescribed in Rule 180 to the Transport Authority which granted the permit 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

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

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

(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 or area to which the permit applies; or

(b) if the new vehicle proposed differs in material respects from the old; or

(c) if the new vehicle proposed is older than the one sought to be replaced; or]

(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.

(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.

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.

[No replacement shall be allowed to a vehicle with material difference for a second time even if the material difference is less than 25 per cent and such an application shall be treated as if it is for a fresh permit.] (4) If the Transport Authority grants an application for 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."

18. On an analysis of the said Rules, it is clear that a clearcut

formula and procedure is prescribed in the matter of replacement of

the vehicle. Note to Rule 174 makes it clear that for the purpose of

the 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 for the purpose of

replacement. Which thus also means, a vehicle having a material

difference of more than 25% cannot be reckoned for replacement.

The second limb of the note introduced on and with effect from

16.01.2015 makes it clear that no replacement shall be allowed to a

vehicle with material difference for a second time, even if the material

difference is less than 25%, and such application shall be treated as if

it is for a fresh permit.

19. Therefore, insofar as the appellant's vehicle is concerned,

the note, as it originally stood would apply, and by virtue of the second

limb of the note, it can only be interpreted to mean that, the issue of

difference of 25% can only be applied against the original vehicle,

because the second limb was introduced into the rules to avoid any

interpretation defusing the rigor of the first limb of the note to Rule

174. Otherwise, there would not be any purpose for introducing the

second limb to the note. That apart, from the permit and the

registration details produced by the appellant, it is clear that the

vehicle bearing registration No. KL 08 Z 3969 against the permit

granted is a Heavy Passenger Motor Vehicle-- Stage Carriage, which is

discernible from the registration details.

20. However, from Ext. P3 registration details, in respect of

vehicle bearing registration No. KL 54 L 2343 offered for replacement

it is evident that it is a Medium Passenger Motor Vehicle -- Stage

Carriage. Therefore, it is clear that the vehicle produced by the

appellant for replacement is not a vehicle of the same nature in

contemplation of Section 83 of Act 1988. Apart from the above, the

Additional Registering Authority, Ponnani canceled the said alteration

done in the vehicle bearing registration No. KL 54 L 2343 as per its

order dated 22.11.2021 i.e., during the pendency of the writ appeal,

which is produced as Ext. R2(e) along with I.A. No. 2 of 2021 dated

23rd November, 2021, by the 2nd respondent. For convenience and

understanding the real nature of the vehicle offered for replacement,

the said order is extracted:

Proceedings of the Additional Registering Authority, Ponnani

(Present: S.A Sankara Pillai)

Sub: Motor Vehicles Department-KL 54 L 2343 Seat alteration-

Cancellation-Orders issuing of

Read: 1. Request dated 26.08.2021 submitted by Smt. Jyothi, Vadakkath, Valappil, Kaladi P.O., Kuttipuram

2. Alteration Report dated 05.10.2021 submitted by Motor Vehicles Inspector, Ponnani.

3. Order No. SC2/108C/707/2021/KL10 dated 16.11.2021

4. Report dated 18.11.2021 submitted by Expert Committee received on 21.11.2021.

Order No.54C/159 /2021-KL54 dated 22/11/2021

As per the paper read as 1, an application for seat alteration in respect of the vehicle KL 54 L 2343, submitted by Smt.Jyothi, was received in this office. Based on the report received as per the paper read as 2, seat alteration was effected in the vehicle.

As per the paper read as 3 above, the Regional Transport Officer, Malappuram Constituted an Expert Committee on the basis of recommendation made by this authority, in order to confirm the veracity of the alteration done in the vehicle. Regional Transport Officer, Malappuram, as per the paper read as 3 above, has also directed to take necessary steps on the basis of the report submitted by Expert Committee.

Expert Committee consisting of Sri.Appu, Motor Vehicles Inspector, Sub Regional Transport Office, Chittur, Sri.Pramod Shankar, Motor Vehicles Inspector, Sub Regional Transport Office, Tirurangadi and Sri.Arun M V, Motor Vehicles Inspector, Regional Transport Office (Enforcement), Malappuram submitted its report as per the paper read as 4 which was received on 21-11-2021.

According to the Committee, any parameter or a bus body can only be altered as per the type approval compliance certificate issued by a test agency. The alteration done in the vehicle, KL 54 L 2343, was that two sandwich passenger seats were fitted in front of the passenger exit. Besides, a single passenger seat which had already been fitted was relocated at the opening to the emergency exit. The Committee view that the alteration done in the vehicle is against the prevailing rules and directions and shall be reverted at the earliest.

Considering the Expert Committee opinion and as per the direction of

the Regional Transport Office, Malappuram, as per the paper read as 3, 1, Additional Registering Authority, Ponnani, hereby cancel the seat alteration done in the vehicle bearing registration mark KL 54 L 2343 with immediate effect.

The registered owner of the vehicle is directed to produce the vehicle before this authority by removing the additional seats fitted within one day from the date of receipt of this order positively. The Registered owner is also directed to surrender the Certificate of Registration of the vehicle in order to cancel the alteration effected.

S.A. Sankara Pillai, Joint Regional Transport Officer, Ponnani.

To Smt. Jyothi, Vadakkath, Valappil, Kalady P.O. Kuttippuram."

21. The learned counsel for the appellant has also advanced a

contention that going by the definition of Heavy Passenger Motor

Vehicle and Medium Passenger Motor Vehicle contained under Section

2(17) and 2(24) respectively of Act, 1988, there is no material

difference by and between the said classes of vehicles. That apart, it

was submitted that a reference to Rule 17 of the Rules, 1989 dealing

with 'addition to driving license' makes it clear that Heavy Passenger

Vehicle and the Medium Passenger vehicle are to be treated as a

similar class of vehicle for the purpose of consideration for

replacement in contemplation of Section 83 of the Act, 1988 and Rule

174 of the Rules, 1989.

22. Above all, going by the provisions of Rule 174 of the Rules,

1989 and the note thereto, it is clear that 25% difference prescribed

as per note is with reference to the original vehicle covered by the

permit. Otherwise, it would have been clearly specified in the said

Rules. Moreover, even according to the appellant, Ext. P9 draft Rules

was made by the Government apparently to clarify that the vehicle

dealt with under Rule 174 of the Rules, 1989 for the purpose of

considering whether the alteration exceeds 25% of the original vehicle

or not. It is basically clarificatory in nature, and that would not give

any indication at all to the effect that as of now, in Rule 174 of the

Rules, 1989, the vehicle intended is the vehicle in operation and which

has replaced the original vehicle as per the permit. Insofar as the

argument addressed by the counsel for the appellant concerning the

class of vehicle referring to the Heavy Passenger Motor Vehicle vis-a-

vis the Medium Passenger Motor Vehicle and the addition of license

etc., they are all incorporated in the statute for the purpose of dealing

with different situations, and they would not enure to the benefit of

the appellant in any manner, especially due to the fact that the

replacement of a vehicle is clearly guided by Section 83 of Act, 1988

r/w Rule 174 of the Rules, 1989.

23. Addressing the issues so, we are of the considered opinion

that the appellant has not made out any case for interference with the

judgment of the learned single Judge, there being no jurisdictional

error or other legal infirmities justifying us to do so.

Needless to say, writ appeal fails and accordingly it is dismissed,

however this judgment will not stand in the way of the appellant

seeking a fresh permit in contemplation of Note to Rule 174(3) of

Rules, 1989.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WA 706/2021

PETITIONER'S ANNEXURE:

ANNEXURE A1 TRUE COPY OF THE INTERIM ORDER DATED 21/01/2021 IN WPC NO. 6516 OF 2020.

ANNEXURE A2 CERTIFIED COPY OF THE JUDGMENT DATED 30.03.2021 IN WPC NO. 6516 OF 2020.

ANNEXURE A3 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF KL-54-L-2343.

ANNEXURE A4 TRUE COPY OF TEH TAX RECEIPT DATED 28.10.2021.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

P.S to Judge.

rv