IMPORTANT POINTS
Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.

JUDGMENT :

1. The petitioner, who is stated to be a stage carriage operator with Ext.P1 regular permit on the route Mavoor-Kizhissery via Cherupa, Ooorkkadavu, Vazhakkad, Edavannappara, Omanur and Pothuvettippara with halt at Edavannappara, in respect of stage carriage bearing registration No.KL-10/Q-9955, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to consider and take a decision on Ext.P4 application dated 09.05.2019 with a request to operate stage carriage bearing registration No.KL-10/S-4203, in the place of stage bearing registration No.KL-10/Q-9955, on the route Mavoor-Kizhissery, covered by Ext.P1 permit.

2. On 04.07.2019, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions.

3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.

4. As can be seen from Ext.P3 proceedings dated 19.04.2018 of the 1st respondent Regional Transport Authority, a belated application for replacement made by the petitioner stands rejected with a finding that the petitioner has intentionally missed the opportunity for replacement and his request is against the provisions under Rule 152 of the Kerala Motor Vehicles Rules, 1989. The decision of the 1st respondent Regional Transport Authority in Ext.P3 proceedings (Item No.48) reads thus;

“Heard. This is to consider the belated application for replacement of permit in respect of the stage carriage, KL-10/Q-9955, kept under suspended animation, operating on the route, Mayoor-Keezhissery as ordinary service vide permit No.10/4119/2014/M, which was valid from 10.09.2014 to 09.09.2019 to a later model stage carriage KL-10/S-4203.

The stage carriage KL-10/Q-9955 is covered by regular permit which is valid from 10.09.2014 to 09.09.2019. The permit holder applied for the issue of clearance certificate in respect of the stage carriage KL-10/Q-9955, without surrendering the regular permit and thereby keeping the permit under suspended animation in obedience to the direction from Hon. High Court of Kerala, in W.P. (C)No.14245 of 2015(E), dated 12.05.2015. The Hon. Court has directed to issue the clearance certificate in respect of the stage carriage keeping the permit under suspended animation: Accordingly, the clearance certificate was issued to the stage carriage KL-10/Q-9955. Now, after three years the permit holder has submitted an application on 05.03.2018 for the replacement of the above said suspended animation permit to the later model stage carriage, KL-10/S-4203.

This authority has considered the application and verified connected files in details in view of the directions contained in the judgment of Hon. High Court of Kerala. Normally, a permit which is under suspended animation has to be replaced by another stage carriage within four months from the issue of clearance certificate. Now the permit holder has applied for replacement after three years.

This authority is of the opinion that the applicant has intentionally missed the opportunity for replacement his permit and this is against the provisions of KMVR 152. In the light of the above findings and observations, this authority is of the view that there is no necessity to condone the delay due to the intentional negligence and laxity of the applicant to operate a stage carriage. Hence this authority reject the application for replacement.”

5. Ext.P3 order of the 1st respondent is appealable before the State Transport Appellate Tribunal, under clause (f) of sub-section (1) of Section 89 of the Motor Vehicles Act, 1988, which provides for an appeal by any person aggrieved by the refusal to grant permission under Section 83 of the Act, within the time limit of thirty days of the receipt of the order appealed against, as provided under sub-rule (1) of Rule 141 of the Kerala Motor Vehicles Rules. Rule 141 of the Kerala Motor Vehicles Rules reads thus;

“1