IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 WP(C).No. 4861 of 2005(D) ------------------------- PETITIONER: --------------- P.L. JOSE, PALATHINGAL HOUSE, PALLIKKUNNU, VARANDARAPPILLY. BY ADV. SRI.I.DINESH MENON RESPONDENTS: --------------- 1. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, THRISSUR. ADDL.R2: P.A.GEORGE, RN PINDIYANI HOUSE, PALLIKUNNU, VARANDARAPPILLY. ADDL.R3: M.C.RAGESH, MUNDAKKAL HOUSE, P.O.PARAPPUKKARA. (ADDL.R2 AND R3 IMPLEADED AS PER I.A.NO.3992/2005 DT.14.11.2008) GOVERNMENT PLEADER, SRI.BENJAMIN PUAL FOR 1 ADV.SRI.K.V.GOPINATHAN NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4861/2005 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE PERMIT ALONG WITH THE ENDORSEMENTS DT.20.7.2004. EXT.P2: COPY OF THE APPLICATION FOR REPLACEMENT DT.2.12.2004. EXT.P3: COPY OF THE JUDGMENT IN W.P.37485/2004 DT.7.1.2005. EXT.P4: COPY OF THE PROCEEDINGS DT.17.1.2005. EXT.P5: COPY OF THE APPLICATION FOR TEMPORARY PERMIT DT.19.5.2005. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR,J. ---------------------------------------- W.P.(C) No. 4861 OF 2005 ---------------------------------------- Dated this the 14th day of November, 2008 J U D G M E N T ~~~~~~~~~~~ The petitioner was operating a stage carriage on the route Varandarappally-Mala. The permit was issued in respect of the stage carriage KL-9/B-3213. It was a 1993 model vehicle and the passenger capacity was 48 in all. The petitioner filed Ext.P2 application for replacement of that vehicle with a new vehicle KL-10/J-5301 with a seating capacity of 28. This Court, by Ext.P3 judgment, directed the Secretary to consider the application. He considered Ext.P2 and replacement was sanctioned by his proceedings dated 11.1.2005. Corresponding endorsement was made in the permit also. Later the said officer realised that, since the seating capacity of the new vehicle was substantially less and the difference exceeded more than 25% of the seating capacity of the original vehicle, the application, Ext.P2, should have been treated as an application for a fresh permit. In that view of the matter he has no delegated power to deal with that application. Therefore, he W.P.(C) No.4861/2005 2 recalled the order dated 11.1.2005 by Ext.P4 dated 17.1.2005. This writ petition is filed challenging Ext.P4. 2. When the petitioner had a remedy of revision against that order, this writ petition should not have been entertained. But, it was entertained and since it was pending before this Court for more than three years, I am considering the matter on merit. The petitioner submits, though the application, Ext.P2, is deemed to be an application for a fresh permit, in reality, it is not an application for the grant of a fresh permit and therefore the Secretary is empowered to consider the application. 3. The respondents have filed a counter affidavit stating that under Rule 133, the R.T.A. is authorised to delegate its powers to the Secretary in relation to various matters enumerated in that Rule. The powers under Rule 133(a) and (b) have not so far been delegated by the Secretary of the Thrissur R.T.A. Going by Rule 174 of the Motor Vehicles Rules, Ext.P2 application should be treated as an application for fresh permit and therefore the Secretary was powerless to allow it. So, the W.P.(C) No.4861/2005 3 earlier proceeding was rightly recalled by the present impugned proceeding, Ext.P4, it is submitted. 4. Heard. The Rule 174 reads as follows: “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 the 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 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, hypothication or lease. W.P.(C) No.4861/2005 4 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 different between the two vehicles, the application shall be treated as if it were for a fresh permit. (emphasis supplied) Note:- For the purpose of this rule vehicles which differ by not more than 25 per cent of the Gross Vehicle Weight or seating capacity, as the case may be, shall not be considered as materially different.” The provision under the Motor Vehicles Act dealing with replacement of vehicle is Section 83, which reads as follows: “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.” 5. It is not in dispute that the Secretary of the Thrissur R.T.A. is not empowered to hear an application for grant of a fresh permit by the R.T.A. If that be so, going by the note under Rule 174(3) of the Kerala Motor Vehicles Rules, I feel that the view taken by the Secretary, R.T.A is perfectly justified. The learned counsel for the petitioner relied on the decision of the Apex Court in Shiv Chand Amolak Chand v. R.T.Authority [AIR 1984 SC 9]. The said decision has no application to the facts of this case. The challenge against Ext.P4 is repelled and W.P.(C) No.4861/2005 5 the writ petition is dismissed. But, the R.T.A. may consider Ext.P2 application in view of Ext.P4 proceedings, as expeditiously as possible, preferably at its next meeting. (K.BALAKRISHNAN NAIR, JUDGE) ps