IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2277 of 2010(H)
1. K.PRASANNAKUMAR,REMANI MANDIRAM,
... Petitioner
Vs
1. THE SECRETARY, REGIONAL TRANSPORT
... Respondent
2. THE REGIONAL TRANSPORT AUTHORITY, KOLLAM
For Petitioner :SRI.O.D.SIVADAS
For Respondent : No Appearance
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :25/01/2010
O R D E R
K.SURENDRA MOHAN, J.
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W.P (C) No.2277 of 2010
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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.
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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
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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
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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
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