High Court Kerala High Court

K.Prasannakumar vs The Secretary on 25 January, 2010

Kerala High Court
K.Prasannakumar vs The Secretary on 25 January, 2010
       

  

  

 
 
  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.
                      -------------------------
                   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