Kerala High Court
P.Girish Kumar vs The Secretary on 21 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 21ST DAY OF JANUARY 2021/1ST MAGHA, 1942
WP(C).No.18051 OF 2020(F)
PETITIONER:
P.GIRISH KUMAR,
AGED 50 YEARS,
S/O.SUBRAMANIAN,
PUTHIYAVEETTIL,
WEST HILL, KOZHIKODE-5.
BY ADV. SRI.O.D.SIVADAS
RESPONDENTS:
1 THE SECRETARY,
THE REGIONAL TRANSPORT AUTHORITY,
CIVIL STATION,
KOZHIKODE, PIN-673 020.
ADDL. 2 P.MOHANAN,
S/O. BALAN,
PINNANTH HOUSE,
NORTH BEYPORE P.O.,
KOZHIKODE.
(ADDL.R2 IS IMPLEADED AS PER ORDER DATED
24.09.2020 IN IA NO.1/2020.)
R2 BY ADV. I.DINESH MENON
GOVERNMENT PLEADER SMT RASHMI K.M.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21-01-2021, ALONG WITH WP(C).18517/2020(L), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.18051&18517/2020
:2 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 21ST DAY OF JANUARY 2021/1ST MAGHA, 1942
WP(C).No.18517 OF 2020(L)
PETITIONER:
P.MOHANAN,
AGED 59 YEARS,
S/O. BALAN, PINNANATH HOUSE,
NORTH BEYPORE P.O, KOZHIKODE.
BY ADV. SRI.I.DINESH MENON
RESPONDENTS:
1 THE REGIONAL TRANSPORT AUTHORITY,
KOZHIKODE, COLLECTORATE P.O,
KOZHIKODE-673 020
2 THE SECRETARY,
REGIONAL TRANSPORT AUTHORITY,
COLLECTORATE P.O, KOZHIKODE-673 020
3 P. GIRISH KUMAR,
S/O. SUBRAMANIAN, PUTHIYAVEETTIL,
WEST HILL, KOZHIKODE-673 005
4 USHA MURALI,
USHA NIVAS, PUTHIYANGADI,
KOZHIKODE-673 001
NOW ADDRESSED AS:
USHA MURALEEDHARAN, W/O. K.A MURALEEDHARAN,
'PUSHPAM', P.O KOLIYAKODE,
THIRUVANANTHAPURAM, PIN-695 607
WP(C) Nos.18051&18517/2020
:3 :
5 THE MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN, FORT P.O,
THIRUVANANTHAPURAM-695 034
ADDL. 6 SADIKKALI.O.P.,
S/O. LATE MUHAMMED RASHEED,
AGED 51 YEARS, KUNNATH HOUSE,
BEYPORE.P.O., KOZHIKODE.
(ADDL.R6 IS IMPLEADED AS PER ORDER DATED 4-11-
2020 IN IA No.4/2020).
R3 BY ADV. SRI.O.D.SIVADAS
BY ADV. SRI.STALIN PETER DAVIS
R5 BY ADV. SRI.P.C.CHACKO(PARATHANAM), SC
R6 BY ADV. L.RAJESH NARAYAN
R1-2 GOVERNMENT PLEADER SMT RASHMI K.M.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21-01-2021, ALONG WITH WP(C).18051/2020(F), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.18051&18517/2020
:4 :
JUDGMENT
~~~~~~~~~
Dated this the 21st day of January, 2021
[WP(C) Nos.18051 & 18517 of 2020]
These two writ petitions arise out of the same set of
facts, have issues in common and hence are being heard and
disposed of together. W.P.(C) No.18051 of 2020 is filed by a
Stage Carrier Operator seeking to consider his application for
Temporary Permit taking note of the directions of State
Transport Appellate Tribunal. W.P.(C) No.18517 of 2020 has
been filed by another Stage Carriage Operator seeking to
quash Ext.P3 judgment of the said Tribunal in MVAA
No.188/2016 and to direct the Tribunal to reconsider the entire
issue and pass fresh orders. Incidental reliefs are also sought
for. The parties and documents are referred to in this
judgment as they are arrayed/marked in W.P.(C) No.18051 of
2020, for convenience.
WP(C) Nos.18051&18517/2020
2. One Mrs. Usha Murali (the 4 th respondent in W.P.
(C) No.18517 of 2020) was a permit holder of stage carriage
No. KRD/8253 operating on the Beypore-Bhatt Road in
Kozhikode City. She transferred the permit to the petitioner
and the RTA as per decision dated 29.09.2003 allowed the
transfer. As the vehicle No.KRD/8253 had crossed 15 years,
the petitioner produced records in respect of vehicle
No.KL-11R-6457 for the purpose of endorsement of transfer.
The Secretary, Regional Transport Authority (RTA) refused to
endorse the transfer of permit and replacement of the vehicle
on the ground of material difference. Thereupon the petitioner
produced another vehicle KL-11R-5997. The issue of
transfer of permit and replacement of vehicle were placed
before the RTA. In the interregnum, the petitioner was
permitted to operate on the basis of temporary permits issued
by the respondent. The period of the permit expired on
21.08.2006.
3. The RTA rejected petitioner's application for
renewal and replacement on 25.04.2007. The petitioner
WP(C) Nos.18051&18517/2020
challenged the said order in MVAA 327/2007 before the State
Transport Appellate Tribunal (STAT). The Tribunal directed
the RTA to grant renewal and replacement to the petitioner.
The RTA however again rejected the applications. The
petitioner thereupon preferred appeal MVAA 264/2009 before
the STAT. The Tribunal directed the RTA to grant renewal of
the permit and directed the petitioner to make available
current records of the vehicle for necessary endorsement. The
RTA, however, rejected the application again, as per Ext.P1
dated 09.07.2009.
4. Thereupon, the petitioner preferred yet another
appeal MVAA 502/2009 before the STAT. In the said appeal,
the Tribunal passed Ext.P2 judgment on 15.01.2010 directing
the RTA to comply with Ext.P1 order of the Tribunal. The
State of Kerala challenged Ext.P2 order of the Tribunal filing
W.P.(C) No.9902 of 2010. The said writ petition was
dismissed on 12.03.2015 as per Ext.P3 judgment. During the
pendency of the writ petition, due to the interim order in the
writ petition, the petitioner was not able to get renewal of
WP(C) Nos.18051&18517/2020
permit and endorsement of transfer. Finally, the RTA, on
16.02.2016 as per Ext.P4, granted renewal of permit for the
period from 22.08.06 to 21.08.2011. The petitioner was
permitted to replace the vehicle with stage carriage bearing
No.KL-11Q-5601. The RTA granted further renewal of the
permit for the period from 22.08.2011 to 21.08.2016.
5. The additional 2nd respondent, another Stage
Carriage Operator, filed W.P.(C) No.10450 of 2016
challenging Ext.P4 order. This Court, by Ext.P5 judgment
dated 28.03.2016, quashed the order of the RTA on the
ground that simultaneous consideration of an application for
renewal of permit and an application for replacement of the
vehicle, is impermissible in the light of the judgment of this
Court in Usman v. Regional Transport Authority [2015 (4)
KLT 25]. The Regional Transport Authority was directed to
reconsider first the application for renewal of permit. Though
the petitioner challenged the said Ext.P5 judgment of the
learned Single Judge of this Court filing W.A. No.1092 of
2016, a Division Bench of this Court dismissed the writ appeal
WP(C) Nos.18051&18517/2020
with clarifications, as per Ext.P6 judgment.
6. Pursuant to the directions in Exts.P5 and P6
judgments, the RTA considered the application for renewal of
permit and rejected the same on 15.11.2016, as per Ext.P7.
The said Ext.P7 order of the RTA was challenged by the
petitioner filing MVAA No.188 of 2016. The STAT set aside
Ext.P7 order and remitted the issue back to the RTA for
reconsideration on 14.06.2017, as per Ext.P8. The additional
2nd respondent filed O.P.(C) No.2316 of 2017 challenging
Ext.P8 order of the STAT. The said O.P.(C) was disposed of
by this Court on 10.04.2018, as per Ext.P9 judgment directing
the STAT to reconsider the matter. Thereafter, the issue was
reconsidered by the Tribunal and the Tribunal, as per Ext.P10
judgment dated 16.07.2020, held that the order of the RTA
rejecting the application for renewal of permit submitted by the
petitioner is not sustainable. The order of the RTA was set
aside and the RTA was directed to grant renewal of permit to
the petitioner and consider the application of the petitioner for
replacement thereafter.
WP(C) Nos.18051&18517/2020
7. The petitioner states that the application for renewal
is pending with the RTA. Pending the application, the
petitioner submitted a request to grant renewal of permit in
view of Ext.P10. His stage carriage No.KL-11Q-5601 is not
presently available and hence the petitioner submitted Ext.P11
application for replacement with stage carriage No.KL11/X
884. The petitioner also sought for issuance of Temporary
Permit, submitting Ext.P12 request. Ext.P12 request is not
being favourably considered. It is in the said circumstances
that the petitioner seeks intervention of this Court and to direct
the respondent to entertain and consider Ext.P11 (sic)
application for Temporary Permit.
8. W.P.(C) No.18517 of 2020 has been filed by the
additional 2nd respondent in W.P.(C) No.18051 of 2020. The
additional 2nd respondent is an existing operator on the route
Beypore-Puthiyappa with a set of timings. The additional 2 nd
respondent contends that Ext.P10 judgment of the STAT is
legally and factually incorrect. The additional 2 nd respondent
stated that application for renewal of permit can be submitted
WP(C) Nos.18051&18517/2020
by a permit holder only. The petitioner in W.P.(C) No.18051 of
2020 has not become a permit holder. In paragraph 4 of the
judgment in W.A. No.1092 of 2016, a Division Bench of this
Court has held that application for renewal of permit can be
made only by one who is the holder of the permit and that a
holder of a permit cannot be one who stands with a permit
which has expired by eflux of time.
9. The additional 2nd respondent stated that in view of
the judgment of this Court in Usman v. Regional Transport
Authority (supra), a replacement application is maintainable
only by a permit holder. Rule 20 of the STAT Rules prohibits
the Tribunal from usurping the powers of the original authority.
The Tribunal has acted in violation of Rule 20. A transferee of
stage carriage permit cannot automatically step into the shoes
of the permit holder, except by known means of law. As long
as the petitioner remains only a transferee and not a permit
holder, his application for renewal of permit cannot be
entertained. The judgment of the STAT in MVAA No.188/2016
is therefore liable to be set aside.
WP(C) Nos.18051&18517/2020
10. The learned counsel for the petitioner would argue
that in view of the judgment of this Court in Ext.P6 and the
judgment of the STAT in MVAA 188/2016, the petitioner is
entitled to get renewal of permit applied for by him and
thereafter the RTA is bound to consider his application for
replacement. Pending consideration of his application for
renewal of permit, the Authority is bound to issue Temporary
Permit to the petitioner.
11. The learned counsel for the additional 2 nd
respondent would state that an application for renewal of
permit presupposes an existing permit, in view of Section
81(4)(b)(I) of the Motor Vehicles Act, 1988. The language of
Rule 172(3) of the Kerala Motor Vehicles Rules, 1989 would
also show that application for renewal of permit presupposes
an existing permit. The petitioner is not holding any permit at
all and therefore there is no question of granting extension of
permit to the petitioner.
12. The learned counsel for the additional 2 nd
respondent would further submit that permit was in the name
WP(C) Nos.18051&18517/2020
of Mrs.Usha Murali and the said Usha Murali did not submit
application for renewal of permit. The existing permit was for
stage carriage bearing No.KRD-8253 and it expired on
21.08.2006. The said vehicle completed 15 years on
12.08.1997. The learned counsel for the additional 2 nd
respondent relied on the judgment in Rashinlal v. RTA,
Kozhikode [2004 (1) KLT 1091], Abdul Wahab K.S. v.
Secretary Regional Transport Authority [2015 (4) KLT 268]
and Usman v. Regional Road Transport Authority [2015 (4)
KLT 25] and argued that renewal and replacement
applications cannot be considered simultaneously and only
holder of a permit can apply for replacement. This was also
so held in Ext.P21 judgment in W.A. No.1094 of 2016 filed by
the petitioner.
13. The learned counsel for the additional 2 nd
respondent relying on Rule 148 of the Kerala Motor Vehicles
Rules, 1989, argued that if motor vehicles tax in respect of the
stage carriage is not paid in time, the permit will stand
suspended. In view of Section 15 of Motor Vehicles Taxation
WP(C) Nos.18051&18517/2020
Act, 1976, if tax remains unpaid, validity of the permit in
respect of the stage carriage would cease to exist on expiry of
the period.
14. The learned counsel for the additional 2 nd
respondent further argued that the STAT in fact by directing
the RTA to grant permit to the petitioner, has usurped the
power of the RTA, which is prohibited under Rule 20 of the
Kerala State Transport Appellate Tribunal Rules, 1988. The
impugned Ext.P10 order of STAT is therefore grossly illegal
and is liable to be set aside. Relying on the judgment of the
Hon'ble Apex Court in Gajraj Singh v. State Transport
Appellate Tribunal and others [AIR 1997 SC 412], the
learned counsel pointed out that right to renewal of permit is
not a vested right. Therefore, there cannot be a direction to
grant permit to any applicant.
15. The learned counsel for the 4th respondent in W.P.
(C) No.18517 of 2020 who transferred the permit in question
to the petitioner, supported the petitioner in W.P.(C) No.18051
of 2020 and contended that the permit is liable to be renewed
WP(C) Nos.18051&18517/2020
on an application made by the petitioner.
16. Learned counsel for the additional 6 th respondent
who is a permit holder, argued that Section 2(31) of the Motor
Vehicles Act would show that unless a person possesses a
permit in his name, such person cannot be treated as a permit
holder. Rule 144(a) of the Motor Vehicles Rules would also
show that only if a person holds a permit, he can make an
application for renewal of permit. Mere grant of permit is not
sufficient to operate stage carriage and one requires a regular
permit. Rule 172(3) would also make it clear that a mere
order of grant of permit is not sufficient to make a person
permit holder. The learned counsel urged that the transferee
of a permit cannot enter into the shoes of the permit holder, as
long as a permit is not issued to the transferee.
17. I have heard the learned counsel for the petitioner
in W.P.(C) No.18051 of 2020, the learned Government
Pleader appearing for the RTA, the learned counsel appearing
for the additional 2nd respondent (the petitioner in W.P.(C)
No.18517 of 2020), the learned counsel appearing for the 4 th
WP(C) Nos.18051&18517/2020
respondent in W.P.(C) No.18517 of 2020, the learned
Standing Counsel appearing for the Managing Director,
KSRTC, who is the 5th respondent in W.P.(C) No.18517 of
2020, and the learned counsel for the additional 6 th
respondent.
18. The questions arising in these writ petitions are
whether the petitioner is entitled to a Temporary Permit
pending consideration of his application for renewal of permit
by the RTA and whether Ext.P10 judgment of STAT,
Ernakulam in MVAA No.188/2016 is legally sustainable. The
issues arising are to be considered in the light of the peculiar
facts of this case and the various orders passed by the RTA,
STAT and this Court in the long drawn litigation process.
19. Mrs. Usha Murali, the permit holder, transferred the
permit to the petitioner and the RTA allowed the transfer as
per decision dated 29.9.2003. However, endorsement of
transfer was not made in permit since the replacement vehicle
had material difference. The applications for renewal of
permit as well as for replacement were made during the
WP(C) Nos.18051&18517/2020
subsistence of the permit. The permit expired on 21.08.2006.
The RTA rejected the applications for renewal and
replacement only on 25.4.2007. The petitioner filed MVAA
No.327/2007 before STAT against RTA's decision. The
petitioner's appeal was allowed and STAT was directed to
grant renewal and replacement. The RTA, however, again
rejected the applications. Aggrieved, the petitioner filed MVAA
No.264/2009, and the Tribunal again allowed appeal and
remitted the matter, but the RTA again rejected the claim. The
petitioner continued his legal fight before the Tribunal. Every
time the Tribunal found in favour of the petitioner and remitted
the matter back to the RTA, the RTA, as if it is not bound by
the directions of the STAT, kept on rejecting the applications
of the petitioner. The petitioner had to file MVAA
No.327/2007, MVAA No.264/2009 and MVAA No.502/2009.
In MVAA No.502/2009, the Tribunal again found in favour of
the petitioner and directed the RTA to comply with Ext.P1
order of the Tribunal in MVAA No.264/2009.
WP(C) Nos.18051&18517/2020
20. The State of Kerala challenged the judgment of the
Tribunal in MVAA No.502/2009 by filing W.P.(C) No.9902 of
2010. There was an interim order in the writ petition and
hence the petitioner could not get renewal of permit. State's
writ petition was dismissed on 12.03.2015, after five years. It
was only thereafter that the RTA as per Ext.P4 granted
renewal of permit from 22.08.2006 to 21.08.2011 and from
22.08.2011 to 21.08.2016.
21. The additional 2nd respondent challenged Ext.P4
order before this Court, filing W.P.(C) No.10450/2016. This
Court allowed the writ petition on the limited ground that
simultaneous consideration of applications for renewal of
permit and for replacement of vehicle is impermissible in view
of Usman's Case (supra). This Court directed the RTA to
consider the application for renewal first. The writ appeal
preferred against Ext.P5 judgment of this Court was dismissed
by the Division Bench observing that the RTA should be
guided by all the proceedings from the initial application for
transfer of permit.
WP(C) Nos.18051&18517/2020
22. When this Court remitted the matter to RTA for
considering the application for renewal of permit first, one
would expect that in view of various appellate orders of the
Tribunal in favour of the petitioner, the last of which was
upheld by this Court in W.P.(C) No.9902/2010, the RTA would
allow the application for renewal of permit, which was the
direction of the RTA in Ext.P4. However, the RTA rejected the
renewal application observing as follows:-
"Further another application dated 5.2.2016
has been submitted to renew the permit of KRD
8253 State Carriage vehicle from 22.8.2011 to
21.8.2016 and third application to renew from
21.8.2016 also submitted on 1.8.2016. Verified the
files of this Stage Carriage permit and found the
vehicle elapsed 15 years from its registration on
12.8.1997 and all application for renewal submitted
after the vehicle registration validity to operate as
stage carriage permit cannot be entertained. Sri.
Gireeshkumar reported on 29.1.2014 that the vehicle
KRD 8253 has been scrapped since the vehicle
completed 15 years and applied for cancellation of
Registration certificate. Moreover the State Carriage
KRD 8253 stands registered in the name of Smt.
Usha Murali and the transfer of ownership granted
by RTA on 29.92003 never come into force since the
transferee did not turn to submit the current records
within the stipulated period. Hence the renewal of
permit on the City route Beypore - Bhatt Road via
City by Sri. Gireesh in respect of KRD 8253 has
been rejected."
WP(C) Nos.18051&18517/2020
It has to be noted that the Tribunal in Ext.P1 order in MVAA
No.264/2009 had considered the issue and held as follows:-
"The other ground made mention in the
impugned order relating to the non-filing of
replacement application within time and arrears of tax
in respect of the outgoing vehicle are not seen
mentioned in the earlier order of the 1st respondent
dated 25.04.2007. This being the position, those
grounds now stated in the impugned order cannot be
raised by the 1st respondent for the rejection of the
request for renewal of permit. It follows that the
impugned order is vitiated and hence liable to the
interfered with.
To the result, this appeal is allowed and setting
aside the impugned order, the 1st respondent is
directed to grant the renewal of permit in respect of
the new vehicle offered by the petitioner, if he makes
available the current records of that vehicle. The 1 st
respondent is also directed to grant the renewal within
six weeks from the date of receipt of copy of this
judgment."
23. The said Ext.P1 was taken note of by this Court in
W.P.(C) No.9902/2010, and as per Ext.P3 judgment, this
Court had held that there is no justification for denial of
transfer of permit ordered as early as in the year 2003. In
view of Ext.P3 judgment of this Court, the RTA could not have
rejected the application for the reasons contained in Ext.P7
order. The Tribunal in Ext.P10 judgment therefore found that
WP(C) Nos.18051&18517/2020
the impugned order dated 15.11.2016 of the RTA rejecting the
application for renewal of permit is not sustainable.
24. Now, let us consider the legality of Ext.P10
judgment of the Tribunal and sustainability of the arguments
mounted against the said judgment.
25. One argument is that statutory application for
renewal of permit can be made only by a permit holder.
Section 81 of the Motor Vehicles Act, 1988 provides for
duration and renewal of permits. Sub-section (4) of Section
81 explains as to when an RTA/STA may reject an application
for renewal of permit. Section 81 reads as follows:-
"81 Duration and renewal of permits-- (1) A permit
other than a temporary permit issued under section 87
or a special permit issued under sub-section (8) of
section 88 shall be effective [from the date of issuance
or renewal thereof] for a period of five years:
Provided that where the permit is countersigned
under sub-section (1) of section 88, such counter-
signature shall remain effective without renewal for
such period so as to synchronise with the validity of
the primary permit.
(2) A permit may be renewed on an application
made not less than fifteen days before the date of its
expiry.
(3) Notwithstanding anything contained in sub-
section (2), the Regional Transport Authority or the
State Transport Authority as the case may be,
entertain an application for the renewal of a permit
WP(C) Nos.18051&18517/2020
after the last date specified in that sub-section if it is
satisfied that the applicant was prevented by good and
sufficient cause from making an application within the
time specified.
(4) The Regional Transport Authority or the
State Transport Authority, as the case may be, may
reject an application for the renewal of a permit on one
or more of the following grounds, namely:--
(a) the financial condition of the applicant as
evidenced by insolvency, or decrees for payment of
debts remaining unsatisfied for a period of thirty days,
prior to the date of consideration of the application;
(b)the applicant had been punished twice or
more for any of the following offences within twelve
months reckoned from fifteen days prior to the date of
consideration of the application committed as a result
of the operation of a stage carriage service by the
applicant, namely:--
(i) plying any vehicle--
(1) without payment of tax due on such vehicle;
(2) without payment of tax during the grace period
allowed for payment of such tax and then stop the
plying of such vehicle;
(3) on any unauthorised route;
(ii) making unauthorised trips:
Provided that in computing the number of
punishments for the purpose of clause (b), any
punishment stayed by the order of an appellate
authority shall not be taken into account:
Provided further that no application under this
sub-section shall be rejected unless an opportunity of
being heard is given to the applicant.
(5) Where a permit has been renewed under
this section after the expiry of the period thereof, such
renewal shall have effect from the date of such expiry
irrespective of whether or not a temporary permit has
been granted under clause (d) of section 87, and
where a temporary permit has been granted, the fee
paid in respect of such temporary permit shall be
refunded."
WP(C) Nos.18051&18517/2020
Section 81 does not state that an application for renewal of
permit has to be filed by a permit holder himself, as rightly
held by the Tribunal in Ext.P10 judgment.
26. The further argument is that by virtue of Rule 172 of
the Kerala Motor Vehicles Rules, 1989, an application for
renewal permit can only be made by a permit holder. Rule
172 reads as follows:-
"172. Renewal of permits‐ (1) Every application for
the renewal of a permit shall be made to the Transport
Authority which issued the permit.
(2) Application for renewal of permit shall be in
Form "PRA" and shall be accompanied by the permit
where the motor vehicle is subject to a hire purchase,
lease or hypothecation agreement, the certificate or
communication, or as the case may be, the
declaration referred to in sub‐section (8) of Section 51
of the Act.
(3) Production of permit.‐(a) The Transport
Authority sanctioning an application for renewal or a
permit shall call upon the permit holder to produce the
Registration Certificate of the vehicle and endorse the
renewal in the permit and return them to the holder.
The Transport Authority may revoke its sanction of
the application for renewal if the permit holder fails to
produce the documents aforesaid within one month
from the date of despatch of the order requiring the
production of the records:
Provided that the Transport Authority may, if
satisfied on an application made to it in writing by the
permit holder within the period of one month aforesaid
that there are sufficient grounds, grant an extension or
WP(C) Nos.18051&18517/2020
extensions of time not exceeding four months in the
aggregate for the production of the records.
(b) The Transport Authority may delegate the
powers conferred on it by clause (a) to its Secretary in
cases where the Secretary has sanctioned the
application for renewal of the permit."
Sub Rule (3) provides that the RTA/STA shall call upon the
permit holder to produce the Registration Certificate of the
vehicle, endorse the renewal in the permit and return them to
the holder.
27. In the light of Section 81, the argument that Rule
172 implies that an application for renewal of permit can be
made only by the permit holder, is a debatable proposition.
Even assuming so, the case of the petitioner stands on a
different footing. In the petitioner's case, there is a decision to
grant permit to the petitioner by transfer. What is lacking is
only an endorsement of transfer. Therefore, the petitioner in
whose favour the permit is transferred, cannot be said to be
disentitled to apply for renewal of permit.
28. The argument of the counsel for the additional 6 th
respondent is that in view of Rule 144(a) of the Kerala Motor
WP(C) Nos.18051&18517/2020
Vehicles Rules, 1989 and the Form P.St prescribed
thereunder, it has to be held that only a permit holder can
apply for renewal of permit. In this regard, it is to be noted
that the transfer of permit was allowed and effected on
29.09.2003 and the formality remaining was only of an
endorsement by the RTA. The application for renewal of
permit was made by the petitioner in time. The proceedings
were pending. In the circumstances of the case, the Form
P.St to the Rules, 1989 cannot be relied on for the purpose of
denying a statutory right to the petitioners.
29. The arguments of the additional 2nd respondent
based on Rule 20 of the Kerala State Transport Appellate
Tribunal Rules, 1988 are also not sustainable in the facts of
the case. Rule 20 provides that the Tribunal shall not assume
the original jurisdiction of the STAT or RTA while passing final
orders under Sections 64 and 64A of the Motor Vehicles Act.
Section 64 of the Motor Vehicles Act, 1939 provides that the
decision given by the Tribunal in an appeal shall be final.
Section 64A dealing with the revisional powers of the Tribunal
WP(C) Nos.18051&18517/2020
also provides that orders passed by the Tribunal exercising
Section 64A shall be final. It is trite law that an appellate court
must have all the powers of original authority. Therefore, an
appellate Tribunal can pass all orders which the original
authority can pass. In the judgment in Can Transports v.
Saidalavi [2005 (3) KLT 679], this Court held that the State
Transport Appellate Tribunal can direct the RTAs to grant
permits. In S.V.Sivaswami Servai v. Hafez Motor Transport
[(1990) 4 SCC 459], the Apex Court also held that STAT
would be justified in interfering with RTA's order and either
remanding the order to RTA or considering the same itself on
merits. In view of the said judgments, it cannot be said that
the Tribunal has reserved the power of the RTA in passing
Ext.P10 order.
30. The learned counsel for the additional 2 nd
respondent relied on the judgment of this Court in Rashinlal's
Case (supra) and Usman's Case (supra) to contend that
applications for renewal of permit and replacement cannot be
considered simultaneously. The said proposition has become
WP(C) Nos.18051&18517/2020
final in view of Ext.P5 judgment of this Court which was upheld
in Ext.P6 judgment by a Division Bench of this Court. In
Abdul Wahab K.S. v. Secretary, Regional Transport
Authority [2015 (4) KLT 268], this Court held that in the
matter of renewal of permits, a second application filed after
lapse of five years from the expiry of permit, can only be
treated as yet another application for renewal of permit and
that there is no provision in the Motor Vehicles Act to tack one
second application with the first application for renewal of
permit wherein final orders were not passed within a period of
five years. The learned counsel for the 2 nd respondent, relying
on the said judgment, contended that an applicant looses the
benefit for renewal when once the period of five years lapses
after the expiry of the regular permit and the benefit of Section
87(1)(d) of the Act cannot be called in aid.
31. This Court is of the view that the said judgment
cannot be of any aid to the 2 nd respondent since the
application for renewal of permit was preferred by the
petitioner during the currency of the period and the petitioner
WP(C) Nos.18051&18517/2020
was litigating in the matter ever since continuously. The State
Transport Appellate Tribunal had passed orders to grant
renewal of permit to the petitioner, which orders were not
heeded to by the RTA. It was only after Ext.P3 judgment of
this Court that the RTA granted renewal of permit to the
petitioner. The said renewal was under challenge by the
additional 2nd respondent. This Court by Ext.P5 set aside the
order for the sole reason that simultaneous consideration of
renewal application and replacement application, was not
justified. Ultimately, the STAT directed the RTA to grant
permit to the petitioner, as per Ext.P10.
32. In the circumstances, this Court do not find any
illegality or impropriety in Ext.P10 judgment (Ext.P3 impugned
judgment in W.P.(C) No.18517/2020).
33. As regards the application for Temporary Permit
filed by the petitioner, since the application for renewal of
permit is pending consideration, the petitioner should be held
to be eligible for Temporary Permit. It is to be noted that ever
since the permit was transferred to the petitioner in the year
WP(C) Nos.18051&18517/2020
2003, the petitioner was operating the stage carriage on the
basis of Temporary Permits issued to him. A temporary
permit was, however, declined to the petitioner subsequently.
In the facts and circumstances of the case, this Court finds
that the petitioner is entitled to get Temporary Permit pending
consideration of the application for regular permit pursuant to
Ext.P10 judgment.
In the circumstances, W.P.(C) No.18051/2020 is
allowed and the 1st respondent is directed to issue Temporary
Permit to the petitioner forthwith. For the reasons stated
hereinabove, W.P.(C) No.18517/2020 is dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/07.01.2021
WP(C) Nos.18051&18517/2020
APPENDIX OF WP(C) 18051/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN MVAA
264/2009 PASSED BY THE STAT, ERNAKULAM
DATED 09.07.2009.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN MVAA
502/2009 PASSED BY THE STAT, ERNAKULAM
DATED 15.01.2010.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC
9902/2010 DATED 12.03.2015 PASSED BY
THIS HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED
16.02.2016 ISSUED BY THE REGIONAL
TRANSPORT AUTHORITY, KOZHIKODE.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC
10450/2016 DATED 28.03.2016 PASSED BY
THIS HON'BLE COURT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WA
NO.1092/2016 DATED 21.06.2016 PASSED
BY THIS HON'BLE COURT.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED
15.11.2016 ISSUED BY THE REGIONAL
TRANSPORT AUTHORITY, KOZHIKODE.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN MVAA
188/2016 PASSED BY THE STAT, ERNAKULAM
DATED 14.06.2017.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN
OP(C)NO.2316/2017 DATED 10/04/2018
PASSED BY THIS HON'BLE COURT.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN MVAA
188/2016 PASSED BY THE STAT, ERNAKULAM
DATED 16.07.2020.
WP(C) Nos.18051&18517/2020
EXHIBIT P11 TRUE COPY OF THE APPLICATION FOR
REPLACEMENT SUBMITTED BY THE
PETITIONER BEFORE THE RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE APPLICATION FOR
TEMPORARY PERMIT ALONG WITH COVERING
LETTER SUBMITTED BY THE PETITIONER
BEFORE THE RESPONDENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R2(a): TRUE COPY OF THE INTERIM ORDER IN
WP(C)NO.18517 DATED 09/09/2020.
WP(C) No.18051&18517/2020
APPENDIX OF WP(C) 18517/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PERMIT OF THE
PETITIONER.
EXHIBIT P2 TRUE COPY OF THE TIMING ISSUED TO THE
PETITIONER DATED NIL.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN MVAA NO.
188/2016 DATED 16-07-2020
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 15-
11-2016.
EXHIBIT P5 TRUE COPY OF THE APPEAL IN MVAA NO.
188/2016 DATED 17-12-2016 WITHOUT
EXHIBITS
EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT IN
MVAA NO.188/2016 DATED 5-4-2019
EXHIBIT P7 TRUE EXTRACT OF THE ARGUMENTS NOTE IN
MVAA NO.188/2016 DATED 6-07-2020
EXHIBIT P8 TRUE COPY OF THE NOTIFICATION DATED
25-03-2017.
EXHIBIT P9 TRUE COPY OF THE PERMIT ON THE ROUTE
BEYPORE-PUTHIYAPPA DATED 27.8.2020.
EXHIBIT P10 TRUE COPY OF THE TIMING ISSUED TO THE
PETITIONER'S SERVICE.
EXHIBIT P11 TRUE COPY OF THE RC BOOK OF THE
VEHICLE KL-11 AA 9171.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN
WPC.NO.13178/2005 DATED 03/08/2005.
EXHIBIT P13 TRUE COPY OF THE DECISION REPORTED IN
2015[1]KLT 248.
WP(C) No.18051&18517/2020
EXHIBIT P14 TRUE COPY OF THE JUDGMENT IN
OPC.NO.2316/2017 DATED 10/04/2018.
EXHIBIT P15 TRUE COPY OF THE DECISION REPORTED IN
AIR 1997 SC 412.
EXHIBIT P16 TRUE COPY OF THE DECISION REPORTED IN
2015[4]KLT 25.
EXHIBIT P17 TRUE COPY OF THE DECISION REPORTED IN
2015[4]KLT 268.
EXHIBIT P18 TRUE COPY OF THE DECISION REPORTED IN
2015[4]KLT 590.
EXHIBIT P19 TRUE COPY OF THE JUDGMENT IN
WPC.NO.7548/2016 DATED 15/07/2016
EXHIBIT P20 TRUE COPY OF THE JUDGMENT IN
WPC.NO.10450/2016 DATED 28/03/2016
EXHIBIT P21 TRUE COPY OF THE JUDGMENT IN
WA.NO.1092/2016 DATED 21/06/2016.
RESPONDENTS' EXHIBITS:
EXHIBIT R4(1) A TRUE COPY OF THE RELEVANT PORTION
AGENDA DT.10/07/2019, CONSIDERING THE
APPLICATION FOR TRANSFER OF
PETITIONERS PERMIT TO ANOTHER PARTY.
EXHIBIT R4(2) A TRUE COPY OF THE RELEVANT PORTION
DECISION DT.10/7/2019, ALLOWING THE
TRANSFER OF PERMIT OF THE PETITIONER,
WHICH WAS SUPPRESSED BY THE PETITIONER
BEFORE THIS HON.COURT.
EXHIBIT R4(3) A TRUE COPY OF THE REGISTRATION
PARTICULARS OF THE KL.11.AD 3222, SO
CALLED PETITIONER VEHICLE IN WP(c)
EXHIBIT R4(4) A TRUE COPY OF THE JUDGMENT
WP(C)15666/19 DT.3/7/2019, FOLLOWING
WRIT APPEAL 6/2017
EXHIBIT R4(5) A TRUE COPY OF THE AFFIDAVIT FILED BY
THE 4TH RESPONDENT IN WA 1092/2016
WP(C) No.18051&18517/2020
EXHIBIT R3(A) TRUE COPY OF THE RELEVANT PORTION OF
THE DECISION OF THE RTA, KOZHIKODE
DATED 10.07.2019
EXHIBIT R3(B) TRUE COPY OF THE PERMIT ISSUED BY THE
2ND RESPONDENT TO SRI.SADIKKALI
EXHIBIT R3(C) TRUE COPY OF JUDGMENT DATED 12.3.2015
IN WP(C)No.9902 OF 2010 RENDERED BY
THIS HON'BLE COURT.
EXHIBIT R3(D) TRUE COPY OF THE PROCEEDING DATED
16.2.2016 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT R3(E) TRUE COPY OF WPC No.10450/16 FILED BY
THE PETITIONER BEFORE THIS HON'BLE
COURT.
EXHIBIT R3(F) TRUE COPY OF THE JUDGMENT DATED
28.3.2016 IN WP(C)10450/16 OF THIS
HON'BLE COURT.
EXHIBIT R3(G) TRUE COPY OF THE JUDGMENT IN W.A
No.1092 OF 2016 FOR THIS HON'COURT.
EXHIBIT R3(H) TRUE COPY OF PROCEEDING DATED
15.11.2016 OF THE 1ST RESPONDENT.
EXHIBIT R3(I) TRUE COPY OF JUDGMENT IN MVAA NO.188
OF 2016 OF THE ORDER DATED 14.06.2017.
EXHIBIT R3(J) TRUE COPY OF JUDGMENT IN OP(C)No.2316
OF 2017 OF THE ORDER DATED 10.04.2018
EXHIBIT R3(K) TRUE COPY OF JUDGMENT DATED 20.08.2007
IN W.P(c) No.18779/2007 OF THIS
HON'BLE COURT.
EXHIBIT R6(A) TRUE COPY OF THE PERMIT ON THE ROUTE
BEYPORE-PUTHIYAPPA DATED 15.11.2019
EXHIBIT R6(B) TRUE COPY OF THE RC BOOK OF THE
VEHICLE KL-11AD 3222
SR
