High Court of KeralaWP(C)/2175/2014disposed of

Shaiju Mathew v. The Secretary, Regional Transport Authority, Kottayam

2015-09-22Honourable Mr. Justice Anil K.Narendran6 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 22ND DAY OF SEPTEMBER 2015/31ST BHADRA, 1937 WP(C).No. 2175 of 2014 (V) --------------------------- PETITIONER(S):

-------------------------- SHAIJU MATHEW KALLIDATHIYIL HOUSE, MANNARKUNNU, ATHIRAMPUZHA. BY ADV. SRI.K.V.GOPINATHAN NAIR RESPONDENT(S):

---------------------------- THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOTTAYAM PIN 686 002.

BY ADV. T.J.MICHAEL, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 2175 of 2014 (V) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS :

------------------------------------- EXT.P-1:

COPY OF THE REGULAR PERMIT ISSUED TO THE PETITIONER ON THE ROUTE NEENDOOR - KOTTAYAM VALID UP TO 14.5.2015 EXT.P-2:

COPY OF THE REGISTRATION PARTICULARS IN RESPECT OF STAGE CARRIAGE KL-05/N 2750.

EXT.P-3:

COPY OF THE REGISTRATION PARTICULARS IN REPSECT OF INCOMING VEHICLE KL-05/X 2822 EXT.P-4:

COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT DATED 30.8.2013 EXT.P-5:

COPY OF THE PROCEEDINGS OF THE RESPONDENT DATED 18.1.2014 RESPONDENT(S)' EXHIBITS: N I L --------------------------------------- //TRUE COPY// P.A. TO JUDGE

ANIL K. NARENDRAN, J.

------------------------------- W.P.(C) No.2175 of 2014 ---------------------------------------------- Dated this the 22nd day of September, 2015

JUDGMENT

The petitioner, who is the holder of a regular permit to operate service on the route Neendoor - Kottayam which is valid up to 14.05.2015, has filed an application for replacement of the existing vehicle bearing registration No.KL-05/N-2750 with another vehicle bearing registration No.KL-05/X-2822. The regular permit was originally issued to KL-05/A-7876, with effect from 15.05.1995. The said application was rejected by Ext.P5 order dated 18.01.2014 mainly for the reason that the existing vehicle bearing registration No.KL-05/N-2750 is having 48 seats in all while the proposed incoming vehicle bearing registration No.KL-05/X-2822 is having 38 seats in all and both outgoing vehicle and incoming vehicle are materially differed more than 25% as far as the number of seats are concerned and as such, the application cannot be considered as per Rule 174 of the Kerala Motor Vehicles Rules. It is aggrieved by the aforesaid order, the petitioner is before this Court in this writ petition.

2. On 28.01.2014, this Court passed an interim order

directing the respondent to allow replacement of the petitioner's present vehicle KL-05/N-2750 with KL-05/X-2822 operating regular permit on the route Neendoor - Kottayam, provisionally and subject to the result of the writ petition.

3. Today, when the case was taken up for final hearing, the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondent submitted that, the issue raised in this writ petition is covered by the judgment of this Court dated 13.03.2015 in W.P.(C). No.5728/2015 and connected cases. Paragraphs 8, 9 and 10 of the judgment reads thus:

"8. There shall be a meaningful interpretation of the Note in the context of the concern expressed by the Government in its Explanatory Note. The concern sought to be addressed by the Government was the loss to the exchequer and public interest caused by successive reduction of seating capacity. As Rule 174 of the KMV Rules exists, before the expansion, a vehicle with a certain seating capacity could be replaced with another vehicle with a lesser seating capacity, the material difference being within the 25% limit. Then when a second replacement is sought, the material difference could be related to the seating capacity of the second vehicle and not the original vehicle endorsed in the permit. It is to

curb such practises that the Government intended to bring a clarification to Rule 174.

However, this Court is afraid, neither the proviso introduced nor the expansion of the Note bring in such clarification. In fact, the restriction should be that, there should be no replacement allowed if the "material difference" is more than 25% of the original vehicle endorsed in the permit. Such restriction should also be maintained only, in the context of a reduction of seating capacity, since an enhancement of seating capacity would serve both the cause of the exchequer as also the public. In such circumstance, this Court is of the opinion that the expansion of the Note as per G.O.(P) No.93/2014/Tran. dated 29.12.2014 has to be set at naught for the same not bringing in the result the Explanatory note intends. The amendment is totally incongruous with the intendment. I do so. The Government would be entitled to bring in sufficient clarification de hors the fact that the expansion in the Note now brought in by the notification has been set aside by this Court.

The writ petitions would stand allowed. The consideration of the applications, in which provisional registration has been granted by way of interim orders of this Court and the writ petitions in which fresh applications have been given, shall be made by the Transport Authority concerned, in accordance with the observations made hereinabove.

The "material difference" shall always be related to the original vehicle, since even the rule as it exists now, could be so

interpreted. The same shall be done within a period of three weeks from the date of receipt of a certified copy of this judgment. Parties are left to suffer their respective costs."

In view of the judgment of this Court dated 13.03.2015 in W.P.(C). No.5728/2015 and connected cases, this writ petition is disposed of setting aside Ext.P5 order dated 18.01.2014. It is also ordered that the reconsideration of the application dated 31.12.2013 submitted by the petitioner, in which provisional replacement has been granted by way of an interim order passed by this Court dated 28.01.2014, shall made by the respondent, in accordance with the observations contained in the judgment of this Court dated 13.03.2015 in W.P.(C). No.5728/2015 and connected cases. The material difference shall always be related to the original vehicle, as the Rule as it exists now, could be so interpreted. The same shall be done within a period of three weeks from the date of receipt of a certified copy of this judgment. No order as to costs.

sd/- ANIL K. NARENDRAN, JUDGE