← Library
High Court of KeralaWP(C)/21339/2014disposed of

Josy Joseph v. The Secretary

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. 21339 of 2014 (N) ---------------------------- PETITIONER:

------------------- JOSY JOSEPH PALLIKKARA HOUSE, KOODALLUR PO, KOTTAYAM BY ADV. SRI.P.DEEPAK RESPONDENT::

---------------------- THE SECRETARY REGIONAL TRANSPORT AUTHORITY, KOTTAYAM 686 001.

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

WP(C).No. 21339 of 2014 (N) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 COPY OF THE COMMUNICATION OF THE RESPONDENT DATED 12/8/2014 EXHIBIT P2 COPY OF THE GO(P) NO.85/2013/TRAN DATED 30/8/2013 EXHIBIT P3 COPY OF THE INTERIM ORDER DATED 25/6/2014 IN WPC NO.15319/2014. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S.TO JUDGE dsn

ANIL K.NARENDRAN, J -------------------------------------------------- W.P.(C.)No.21339 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 Kottayam - Anthyalam which is valid up to 23.1.2016, has filed an application dated 7.8.2014 before the respondent for replacement of the existing vehicle bearing registration No.KL-05/W-8085 with another vehicle bearing registration No.KL-05/AJ 9344. The regular permit was originally issued to stage carriage No.KRO 9005, which was replaced by KL07/F 4006 and was thereafter replaced by the existing vehicle KL05/W-8085. In response to the said application, the petitioner was issued with Ext.P1 communication dated 12.8.2014 of the respondent intimating that the difference in material respects cannot be allowed as per the provisions in the Government Order dated 30.8.2013 and that since the respondent has no power to reject the application for replacement of the vehicle, the application submitted by the petitioner dated 7.8.2014 will be placed before the next RTA meeting for consideration and to take a decision in the matter.

-22. By order dated 18.8.2014, this Court directed the respondent to provisionally replace the existing stage carriage bearing No.KL-05/W-8085 with KL-05/AJ 9344 pending disposal 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

-3such practises that the Government intended to bring a clarification to Rule 174.

9.

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

-4done 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.P1 communication dated 12.8.2014. It is also ordered that the consideration of the application dated 07.8.2014 submitted by the petitioner, in which provisional replacement has been granted by way of an interim order passed by this Court dated 18.8.2014, shall be 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, 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. No order as to costs.

Sd/- ANIL K.NARENDRAN, JUDGE dsn