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2002 DIGILAW 802 (KER)

Bhaskaran v. RTA, Alleppey

2002-12-10

M.RAMACHANDRAN

body2002
Judgment :- 1. The brief facts of the case are as following: The second respondent is the registered owner of a stage carriage bearing registration No. KLY 9250 covered by a regular permit on the route Thykattussery, Cherthala that is valid up to 7.1.2003. The said vehicle had defaulted service and finding the vacancy the petitioner had made an application in respect of his stage carriage No. KL-04/L.5524. Ext. P1 is the permit so granted as a substituted service. It is issued for four months and is valid up to 21.2.2003. 2. While the petitioner was so conducting service on the strength of Ext. P1, a copy of the order dated 20.11.2002 issued by the Secretary, Regional Transport Authority, Alappuzha (Ext. P2) had been served on him. This showed that a temporary permit was granted for four months in respect of state carriage No. KL-04/J. 8929 in the place of KLY 9250 in favour of the registered owner of vehicle No. KLY 9250 (2nd respondent). Reference is made to Ext. P1 proceedings in the text of the order, but it is stated that: "In the meantime, the regd. owner in respect of S.C. KLY 9250 and KL. 04/J. 8929 jointly submitted a lease agreement in a stamp paper worth Rs. 50/-. It is stated that the regd. owner in respect of S.C. KL. 04/J. 8929 agreed to give the vehicle to Sri. Cherian, regd. owner in respect of S.C. KLY 9250 to conduct service in place of defaulted vehicle on the basis of hire for a period of 4 months. Sri. Cherian had applied for substitute T.P. for 4 months in respect of S.C. KL. 04/J. 8929 in place of S.C. KLY 9250." The resultant position was that Ext. P1 was to be treated as impliedly cancelled, though no formal orders have been issued. As Ext. P2 adversely affected the petitioner, the Original Petition has been filed. 3. The learned counsel for the petitioner submits that the grant in favour of the petitioner is valid for four months in the defaulted vacancy and the grant did not incorporate any condition that the stage carriage will have to be taken off the road in any such contingency. He submits further that he was not heard before Ext. P2 order was issued and the proceedings violated principles of natural justice. He submits further that he was not heard before Ext. P2 order was issued and the proceedings violated principles of natural justice. It is pointed out by him that the vehicle now claimed as made available, is already having a hire purchase agreement with a financier and it would not have been possible for arranging a lease in respect of the vehicle with the second respondent and the transaction claimed was illegal, inoperative and also sham. He further submits that so long as he admittedly was not the registered owner of the vehicle now sought to be introduced, the Secretary, RTA erred in passing the order and it was therefore liable to be set aside. 4. The Original Petition had been entertained at a time when the regular sitting of the State Transport Appellate Tribunal had not commenced for want of notification. Taking note of the legal aspects involved and the contention of the petitioner that the present grant is irregular, the matter was decided to be examined in these proceedings. 5. A counter affidavit has been filed by the second respondent and he submits that there were no principles of natural justice involved. The operation with the original stage carriage was found impossible, since it became an out modelled vehicle and a substitution had been attempted to in the aforesaid context. As the petitioner was permitted to operate specifically in a vacancy, when the original permit holder came prepared with a new vehicle the petitioner had no scope for contending that he will not leave the scene. He claimed that the arrangement for making available a stage carriage on lease basis was not irregular as suggested, and reference was made to the judgment of this Court, reported in 1990 (2) KLT 885 (Dakshayani v. State Transport Appellate Tribunal). According to him, Ext. P2 was valid, issued with jurisdiction and the petitioner had no place, when once the new grant became operative. 6. In view of the interim orders passed, the petitioner is continuing operation on the basis of Ext. P1. The issue presently voiced was as to whether the second respondent is entitled to get the benefit of Ext. P2 on the basis of a lease arrangement with the owner of the stage carriage KL-04/J. 8929 (the number of the vehicle is not very certain from the order). P1. The issue presently voiced was as to whether the second respondent is entitled to get the benefit of Ext. P2 on the basis of a lease arrangement with the owner of the stage carriage KL-04/J. 8929 (the number of the vehicle is not very certain from the order). He has not refuted the allegation that the vehicle is already covered with hire purchase agreement. Though this might have been a disabling factor, for want of materials, it may not be proper for me to finally decide upon the issue and the Secretary, RTA will be in an advantageous position to examine whether such vehicle was free to be negotiated for a lease arrangement as is claimed. However, this also may not be necessary, since I am of the view that a grantee should as well has to be registered owner of the vehicle which he is obliged to produce under R.159(2) of the Kerala Motor Vehicles Rules. Of course, the second respondent has relied on the decision (cited supra) which in its turn had relied on a earlier decision of the Supreme Court in Viswanatha v. Shanmugham (AIR 1969 SC 493), the Court had observed that notwithstanding the introduction of the new Motor Vehicles Act the substantive section was remaining unchanged, and it therefore that the principles on the basis of the earlier Act have been relied on. The learned judge had observed as following: "Learned counsel for the petitioner tried to draw a distinction for application of the said ratio to the facts of the present case. He pointed out that the said decision was rendered when the word "owner" in the Motor Vehicles Act, 1939 did not contain a condition that the owner should be the registered owner, whereas the definition of "owner" in the present Act contains such a condition. With this change in the definition of owner, according to the learned counsel, the ratio laid down in Viswanata's case has no application. It is difficult to accept this contention. I do not think that the definition of owner in the present Act has any bearing on the question in dispute in this case. With this change in the definition of owner, according to the learned counsel, the ratio laid down in Viswanata's case has no application. It is difficult to accept this contention. I do not think that the definition of owner in the present Act has any bearing on the question in dispute in this case. If the provisions in the Act imposed a restriction that a permit can be issued only to the owner of a vehicle, then perhaps the change in the definition of "owner" can bear some weight in disregarding the ratio laid down by the Supreme Court in Viswanatha's case. S.66(1) of the Act, or any other provision or rule does not impose any such restriction. Therefore, the legal position continues without change under the present Act." I am of the view that the attention of the learned judge had not been drawn to any certain other provisions in the statute which clearly indicates that the permit holder should also be the owner of the vehicle. 7. Section refers to cancellation and suspension of permits. The transport authority which grants the permit is authorised to cancel the permit or suspend it under S.86(c) if the holder of the permit ceases to own the vehicle covered by the permit. R.176 refers to entry of new address in the permit. Upon receipt of intimation about the change of address the transport authority is obliged after due enquiries to record the changed address in the Certificate of Registration and enter the permit in the new address. These two requirements conclusively indicate that the permit has to be in respect of the vehicle which stands registered obviously in the name of the registered owner. Over and above that, S.2(30) defines an owner in whose name a motor vehicle stands registered. As had been suggested by the respondent in the case cited, the definition was sufficient to change the existing situation. It is undisputed that in the matter of dues towards fee and taxes there is a charge on the vehicle and when a permit holder has no ownership over the vehicle, such provisions automatically gets defeated. 8. Under R.159, entry of registration marks in the permit is compulsory. It is undisputed that in the matter of dues towards fee and taxes there is a charge on the vehicle and when a permit holder has no ownership over the vehicle, such provisions automatically gets defeated. 8. Under R.159, entry of registration marks in the permit is compulsory. It is laid down that when the applicant is unable to produce the Certificate of Registration on the date of his application for permit the applicant shall within one month of the sanctioning of the application or other extended time should produce the Certificate of Registration, so that the registration marks may be entered in the permit. The rule uses the expression "duly registered" and this can be accepted as "duly registered in the name of the permit holder". Of course being a movable item, it may ordinarily be possible to assume that ownership goes with possession. But as far as the motor vehicle is concerned, especially taking note of the public interest involved, it is not only the possession, that matters. Elaborate procedure has been prescribed, touching a variety of requirements, in the matter of transfer of ownership and permits. The predominant purpose, as I find it, is public interest. Thus in the case of a vehicle covered by hire purchase in the matter of registration, grant of permit and renewal of the same, the Act and Rules impose conditions for making available No Objection Certificate. This is to ensure that during the grant of permit, if the vehicle is taken back by the legal owner, it will adversely affect public interest. Likewise the lessor, as in the present case, can repossess the vehicle at his will and pleasure so long as he is the registered owner of the vehicle. The cancellation, referred to in S.86(c) has come to be in the statute book, in the aforesaid context. Therefore, the contention of the respondent that the lease arrangement entitle him to have a permit in respect of the vehicle held on the strength of lease is difficult to be accepted. I am not following the decision cited, as the learned judge had not been appraised of all the relevant aspects. Ownership as a registered owner is a condition precedent for grant of permit in the name. 9. Taking note of the above factual situation, I am of the opinion that the permit granted on arrangements ratified by Ext. I am not following the decision cited, as the learned judge had not been appraised of all the relevant aspects. Ownership as a registered owner is a condition precedent for grant of permit in the name. 9. Taking note of the above factual situation, I am of the opinion that the permit granted on arrangements ratified by Ext. P2 prima facie is irregular. Consequently, this cannot have any legal force entitling the second respondent to ply the vehicle as authorised by the permit. Ext. P2 is irregular and invalid and it is set aside. The Original Petition is allowed. The petitioner will have the authority to operate the vehicle for the full period, as authorised by Ext. P1.