IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35729 of 2009(I)
1. ANILKUMAR.S, ANUPAM,
... Petitioner
Vs
1. THE SECRETARY
... Respondent
For Petitioner :SRI.I.DINESH MENON
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :20/01/2010
O R D E R
C.R.
P.N.RAVINDRAN, J.
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W.P.(C)No.35729 of 2009
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Dated 20th January, 2010
JUDGMENT
The petitioner applied for the grant of a fresh regular
permit to operate a stage carriage on the route Olappara-
Nedumparambu. In the application for regular permit the petitioner
had offered to make available a vehicle before the permit is issued.
The Regional Transport Authority, Kollam considered the application at
its meeting held on 27.7.2009 and resolved to grant a regular permit
to the petitioner subject to settlement of timings. Ext.P1 is a copy of
the proceedings issued by the Regional Transport Authority, Kollam in
that regard.
2. After Ext.P1 was issued, the petitioner obtained a stage
carriage bearing registration No.KL 16D-4302 on lease from
Smt.T.Suja, the registered owner of the said vehicle. Ext.P2 is a copy
of the lease deed dated 9.12.2009 entered into between the petitioner
and the registered owner of the said vehicle. Ext.P3 is a true copy of
the certificate of registration in respect of the vehicle leased out to the
petitioner by Smt.Suja. The petitioner produced the originals of
Exts.P2 and P3 along with other records before the Secretary, Regional
WP(C).No.35729/2009 2
Transport Authority, Kollam. It is stated that the Secretary, Regional
Transport Authority, Kollam declined to issue a permit on the short
ground that the petitioner is not the registered owner of the vehicle
described in Ext.P3 certificate of registration. This writ petition is filed
contending that a stage carriage operator need not necessarily own
the stage carriage which is offered for service and it is enough if he is
in lawful possession of the vehicle under a lease agreement. Reliance
is placed on the decision of a Division Bench of this Court in
M.Raveendran v. R.T.O. & Another (1995 (1) KLJ 96). In this writ
petition, the petitioner seeks a direction to the Secretary, Regional
Transport Authority, Kollam to issue a fresh regular permit in respect
of the vehicle described in Ext.P3 certificate of registration to operate
the stage carriage on the route Olappara-Nedumparambu, within a
time limit to be fixed by this Court.
3. Sri.I.Dinesh Menon, the learned counsel appearing for
the petitioner, relying on the decision of the Division Bench of this
Court in M.Raveendran’s case (supra) and the decision of a learned
Single Judge of this Court in Dakshayani v. State Transport
Appellate Tribunal (1990 (2) KLT 885) contended that the petitioner
who is in lawful possession of the stage carriage described in Ext.P3
certificate of registration under Ext.P2 lease deed is an owner as
defined in Section 2(30) of the Motor Vehicles Act, 1988 and therefore
WP(C).No.35729/2009 3
the respondent ought to have issued a permit in respect of the said
vehicle to him, giving effect to Ext.P1 proceedings of the Regional
Transport Authority, Kollam. Per contra, Sri.K.S.Mohammed Hashim,
the learned Senior Government Pleader appearing for the respondent
submitted that a learned Single Judge of this Court has in Bhaskaran
v. R.T.A., Alleppey (2003 (1) KLT 106) held that a permit can be
issued only to a registered owner. He submitted that in view of the
conflict of opinion in the matter, this writ petition may be referred to a
Division Bench for consideration. He also submitted that though on an
earlier occasion O.P.No.11495 of 2003 was referred to a Division
Bench, in view of the contrary view taken by the learned Single Judge
in Bhaskaran’s case (supra), the Division Bench did not pronounce
on the issue and that the said writ petition was disposed of without
resolving the conflict of opinion.
4. I have considered the submissions made at the Bar by
the learned counsel appearing on either side. The term “owner” was
defined in section 2(19) of the Motor Vehicles Act, 1939 as follows:
“”owner” means, where the person in
possession of a motor vehicle is a minor, the
guardian of such minor, and in relation to a
motor vehicle which is the subject of a hire
purchase agreement, the person in possession
of the vehicle under that agreement;”
The term “owner” is defined in section 2(30) of the Motor Vehicles Act,
1988 as follows:
WP(C).No.35729/2009 4
“”Owner” means a person in whose name a motor
vehicle stands registered, and where such person is
a minor, the guardian of such minor, and in relation
to a motor vehicle which is the subject of a hire
purchase, agreement or an agreement of lease or
an agreement of hypothecation, the person in
possession of the vehicle under that agreement;”
5. In Viswanathan v. Shanmugan (AIR 1969 SC 493),
the Apex Court, interpreting sections 2(19) and 42 of the Motor
Vehicles Act, 1939 held that section 42 does not require that the
owner himself should obtain the permit and that it only stipulates that
the owner of a transport vehicle shall not use or permit the use of the
vehicle except in accordance with the conditions of a permit. The Apex
Court held that the definition of the term “permit” in section 2(20) of
the Motor Vehicles Act, 1939 itself shows that all permits need not be
in the name of the owner. The Apex Court approved the view taken by
the Allahabad High Court in Khalil-ul-Rahman Khan v. State
Transport Appellate Tribunal (AIR 1963 All. 383) that it is not the
requirement of the Motor Vehicles Act that in each case the person in
whose favour the permit has been issued should necessarily be the
owner of the vehicle covered by it.
6. The interpretation to be placed on section 2(30) of the
Motor Vehicles Act, 1988, arose for consideration before a learned
Single Judge of this Court in Dakshayani v. State Transport
Appellate Tribunal (1990 (2) KLT 885). In that case, the Regional
WP(C).No.35729/2009 5
Transport Authority, Alleppey dismissed the application for a
temporary permit on the ground that the applicant was not the
registered owner of the vehicle. He filed an appeal before the State
Transport Appellate Tribunal. By judgment delivered on 27.9.2009 the
Appellate Tribunal allowed the appeal, set aside the order passed by
the Regional Transport Authority and directed the authority to enquire
whether the temporary need mentioned is true and in existence and if
so to issue a temporary permit for a period of 20 days. The said order
was challenged in this Court by another stage carriage operator on the
ground that the applicant is not the registered owner of the vehicle
and therefore he cannot apply for a permit. Relying on the decision of
the Apex Court in Viswanathan v. Shanmugan (AIR 1969 SC 493)
the learned Single Judge in Dakshayani’s case (supra)held that even
after the amendment of the definition of the term “owner” in the
Motor Vehicles Act, 1988, the legal position continues to be that any
person in lawful possession of a motor vehicle is entitled to apply for a
permit. It was held that the definition of the term “owner” in the
Motor Vehicles Act, 1988, only enlarges the meaning of the term
“owner” as defined in section 2(19) of the Motor Vehicles Act, 1939.
7. The correctness of the decision of the learned Single
Judge in Dakshayani’s case (supra) was canvassed in W.A.No.733 of
1990. The Division Bench of this Court upheld the decision of the
WP(C).No.35729/2009 6
learned Single Judge in Dakshayani’s case (supra) and held that even
after the enactment and coming into force of the Motor Vehicles Act,
1988, there is no change in the definition of the term `owner’ and that
it is not necessary that the applicant for a permit should be the
registered owner of the vehicle. The Division Bench while deciding
W.A.No.733 of 1990 also placed reliance on the decision of the Apex
Court in Viswanathan’s case (supra).
8. When the same issue again arose in O.P.No.16158 of
1994, a learned Single Judge of this Court held that only an owner can
apply for a permit. O.P.No.16158 of 1994 was accordingly dismissed.
The correctness of the said decision was canvassed in W.A.No.1643 of
1994. In Raveendran’s case (supra), the Division Bench which
decided W.A.No.1643 of 1994 set aside the decision of the learned
Single Judge and approved the dictum laid down by the learned Single
Judge in Dakshayani’s case (supra) and by the Division Bench in
W.A.No.733 of 1990. The Division Bench in Raveendran’s case
(supra) held that the term “owner” as defined in Section 2(30) of the
Motor Vehicles Act, 1988 includes a person in whose name the motor
vehicle stands registered as well as the person in lawful possession of
the vehicle under an agreement which includes a lease deed also. The
Division Bench held that the definition in the new Act has in effect
enlarged the ambit of the definition in the Motor Vehicles Act, 1939
WP(C).No.35729/2009 7
and that nothing contained in Section 66(1) of the Act stands in the
way of a person other than the registered owner from applying for a
permit. Later another learned Single Judge of this Court in
Bhaskaran’s case (supra) held that only a registered owner can
apply for a permit. The attention of the learned Single Judge was not
drawn to the binding decisions of the Division Bench of this Court in
Raveendran’s case (supra) and in W.A.No.733 of 1990.
9. It is now well settled by a series of decisions of this
Court including the decision of the Division Bench in W.A.No.733 of
1990 and in Raveendran’s case (supra) that even after the Motor
Vehicles Act, 1988 was enacted and brought into force, a person other
than the registered owner of a vehicle can apply for a regular permit or
a temporary permit. In the light of the authoritative pronouncements
of the Division Bench of this Court in the aforesaid decisions it has to
be necessarily held that the petitioner, who is in lawful possession of
the motor vehicle described in Ext.P3 certificate of registration under
Ext.P2 lease deed is entitled to apply for and obtain a regular permit or
a temporary permit to operate a stage carriage under the provisions of
the Motor Vehicles Act, 1988. In such circumstances, the stand taken
by the Secretary, Regional Transport Authority, Kollam that a regular
permit cannot be issued to the petitioner in respect of the stage
carriage described in Ext.P3 certificate of registration for the reason
WP(C).No.35729/2009 8
that he is not the registered owner thereof cannot be sustained.
I accordingly overrule the said objection and dispose of the
writ petition with a direction to the respondent to issue a regular
permit to the petitioner pursuant to Ext.P1 proceedings of the Regional
Transport Authority, Kollam in respect of the vehicle described in
Ext.P3 certificate of registration. Necessary steps in that regard shall
be taken and a regular permit issued within one month from the date
on which the petitioner produces a certified copy of this judgment
before the respondent, after settlement of timings.
P.N.RAVINDRAN
Judge
TKS