IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 WP(C).No. 2277 of 2010(H) ----------------------------------- PETITIONER(S): ------------------------- K.PRASANNAKUMAR,REMANI MANDIRAM, THAZHUTHALA, KOTTIYAM, KOLLAM. BY ADV.MR.O.D.SIVADAS RESPONDENT(S): ------------------------- 1. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOLLAM. 2. THE REGIONAL TRANSPORT AUTHORITY, KOLLAM REPRESENTED BY ITS SECRETARY. BY GOVT. PLEADER MR.K.S.MUHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K.SURENDRA MOHAN, J. ------------------------- W.P (C) No.2277 of 2010 -------------------------- Dated this the 25th January, 2010 J U D G M E N T Petitioner who is a stage carriage operator was issued with a regular permit to operate on the route Kundara-Mukada-Chirakkara Temple which is valid till 25.12.2010. The permit was endorsed in respect of Stage Carriage No.KL-03/H 5535. According to the petitioner, the said vehicle is a 2002 model vehicle having 28 seats. Since the said vehicle was not fit enough to operate on the route due to mechanical complaints, the petitioner purchased another vehicle, No.KL-6/C 9995 and submitted an application for replacement. The vehicle that was sought to be replaced is a 2005 model vehicle with 38 seats. Since the vehicle was having a higher seating capacity, the petitioner contends that it would have yielded more revenue to the Government. However, the request of the petitioner for replacement has been rejected by Ext.P2 order of the 1st respondent. W.P (C) No.2277 of 2010 2 2. According to the learned counsel for the petitioner, the 1st respondent, Regional Transport Authority has rejected the application for replacement of the petitioner's vehicle in exercise of the power under Rule 133 (1) of the Kerala Motor Vehicles Rules. It is contended that the Secretary has the power only to allow replacement of a vehicle and has no power to reject the application. According to the learned counsel, the matter should have been placed before the 2nd respondent, the Regional Transport Authority. This is because of Rule 174 (3) of the Kerala Motor Vehicle Rules 1989, which stipulates that, where the vehicle that is sought to be replaced is materially different from the earlier vehicle, the application should be treated as if it were an application for a fresh permit. 3. The difference in seating capacity exceeding 25% of that of the earlier vehicle is considered to be a material difference for the purpose of Rule 174 (3). 4. The learned counsel also relies on the decision of this Court in Viswambharan Vs. State of Kerala [2008 (4) KLT 674]. In the said decision, this Court while W.P (C) No.2277 of 2010 3 considering an identical situation has held that the Secretary, Regional Transport Authority as a delegatee is not empowered to reject an application under Section 83 of the Act seeking replacement of one vehicle by another vehicle. It has been held at page 676 of the said decision as follows: " In other words, the Secretary, R.T.A as the delegatee is not empowered to reject an application under Sec.83 of the Act seeking replacement of one vehicle by another. He can consider the application. He can allow the same. It is open to him to place an application before the RTA which of course is competent to deal with it in terms of S.83 of the Act. But, he cannot reject the same." 5. The above legal position is not seriously disputed by the learned Government pleader. In view of the fact that the 1st respondent had no authority to reject the petitioner's application, it is found that Ext.P2 is unsustainable. Accordingly, the same is set aside. There shall be a direction to the 1st respondent to place the petitioner's application for replacement of the vehicle before the 2nd respondent for being considered in accordance with Section 83 of the Act. The matter shall be W.P (C) No.2277 of 2010 4 considered and appropriate orders shall be passed, in accordance with law, as early as possible at, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The Writ petition is disposed of as above. No costs. K.SURENDRA MOHAN,JUDGE ma W.P (C) No.2277 of 2010 5 W.P (C) No.2277 of 2010 6 W.P (C) No.2277 of 2010 7