HIGH COURT OF KERALA
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(1.) Petitioner, a grantee of a regular stage carriage permit, is challenging Ext. P5 whereunder the RTA declined an application for condonation of delay filed by the petitioner for production of current records of the vehicle beyond four months for issue of permit. RTA granted a regular stage carriage permit to the petitioner vide Ext. P1 proceedings dated 28.8.2002. It is seen from the photocopy of Ext. P1 produced that the proceeding was signed for communication on 20.9.2002 and on that day the petitioner concedes to have received it. According to the petitioner, petitioner made an application vide Ext. P2 on 19.10.2002 for grant of maximum time for production of current records in terms of R.159(2) of the Kerala Motor Vehicles Rules. According to the petitioner there was no response and the RTA has not revoked Ext. P1 permit granted to the petitioner. Therefore the petitioner produced current records Ext. P3 on 25.2.2003 for issue of permit further to Ext. P1 grant of it. Petitioner also filed Ext. P4 which is in the nature of request for condonation of delay in furnishing current records of the vehicle for issue of permit. It is against this request of the petitioner, that the RTA vide its proceedings dated 27.3.2002 rejected the petitioner's request for time for production of current records of the vehicle or in other words rejected the current records produced by the petitioner beyond the maximum period permissible under R.159(2) of the Kerala Motor Vehicles Rules. According to the petitioner even today RTA has not revoked the permit in terms of R.159(2) of the Rules and the petitioner's prayer in the Original Petition is for a direction to the RTA to condone the delay in production of current records and issue the permit granted to him under Ext. P1, which according to him, is still in force.
(2.) Government Pleader on the other hand contended that issue of permit itself was conditional and as is evident from the endorsement in Ext. P1 wherein the RTA has directed the petitioner to produce the current records within one month in terms of R.159(2) of the rules and as a consequence of the failure on the part of the petitioner, the permit will stand automatically cancelled is his contention. However, the RTA has not taken this extreme view, even in the impugned proceedings dated 27.3.2003. According to the Government Pleader this is on account of the misconception of the RTA about the legal position and the permit no longer survives by operation of the statutory provision particularly R.159(2) read with the condition imposed in Ext. P1 itself under S.72(2) of the Motor Vehicles Act.
(3.) I have gone through the permit granted, namely, Ext. P1 wherein there is a general condition annexed to it in the following lines:
The grantee is directed to produce current records of the vehicle within one month from the date of sanction of this order, failing which the sanction is liable to be revoked without further notice.
It has been held by a Full Bench of this Court in the decision reported in Narayanan v. RTA, Trichur ( 1980 KLT 249 (FB)) that an applicant for regular permit need not produce registration particulars of the vehicle which he is free to produce after grant of the same and within the time provided under the Rule. Eventhough the decision is under the old Rule, the decision is applicable to present Rule, namely, R.159(2) of the Motor Vehicles Rules and this decision has been followed by this Court in later decisions also. Therefore the application filed by the petitioner without being accompanied by registration particulars of the vehicle is consistent with R.159 and the RTA's endorsement in Ext. P1 that the permit is liable to be revoked without notice if current records are not produced with one month from the date of grant is also in terms of the first part of R.159(2). In other words, if an applicant does not produce current records of the vehicle or make an application for extension of time for a maximum period of three months under R.159(2) for production of current records of the vehicle within one month granted by the RTA in the permit, the consequence would be that the permit will no longer be valid after the expiry of one of it's issue by virtue of the operation of the condition provided in it in terms of S.72(2) of the Act read with R.159(2) of the Kerala Rules. However, the position changes when a grantee applies for extension of time in terms of R.159(2) of the Rules for production of registration particulars or current records of the vehicle. In fact the maximum time that can be extended under R.159(2) by the RTA is four months including one month's time granted under the permit. There is no other provision in the M.V. Act or the Kerala Rules enabling the RTA to extend time for production of current records beyond four months from the date of service of the proceedings granting permit. Of course the grant of permit has to be taken as the date of communication to the grantee and the time for production of current records is to be reckoned with reference to the date of service of communication of permit to the grantee. The contention of counsel for the petitioner is that R.159(2) only authorises the RTA to revoke the permit on account of non production of current records within the maximum period of four months, which they have not so far done in the case of the petitioner, and so much so, according to him, the permit survives even after the lapse of four months from the date of grant of permit without production of current records of the vehicle. Government Pleader on the other hand submitted that though the term used in R.159(2) is "may", in the context in which it is used, it has to be taken as "shall" and so much so on expiry of four months from the grant of permit, the permit will automatically expire if the current records of the vehicle and valid registration certificate in favour of the grantee are not furnished within the four months stated in R.159(2) of the Rules. It has been held in large number of decisions that the word "may is prima facie enabling and permissive and in certain context it shall mean "shall". It has been so held by the Allahabad High Court in the decision in Union of India v. Bhagat Ram (AIR 1958 All. 342, 344) by the Rajasthan High Court in State v. Birda (AIR 1957 Raj. 318, 321) and by the Supreme Court in the decisions in M.Karunanidhi v. M.V. Hande ( AIR 1983 SC 558 ) and G.P.S. Kesari v. Lakshminarain Gupta ( AIR 1985 SC 964 ) that Court has unfettered power to ascertain whether a provision is directory or mandatory subject to it's ascertaining the real intention of the Legislature on a careful examination of the scope of the statute. Going by these decisions and in the context in which "may" is used in R.159(2) which does not provide for power to the RTA to extend time for production of current records beyond four months, I am of the view that the word "may" has to be read as "shall" in the context in which the same is used. There is also no provision in the Act or Rules enabling the RTA to condone the delay in furnishing current records beyond four months. The word "may" in the context in which it is used in R.159(2) of the Rules has to be read as meaning "shall" or otherwise the purpose of the Rule will be defeated. It has to be noticed that there is no inherent power vested in the RTA to revive permits which have lapsed by virtue of operation of conditions of permit incorporated by the RTA while granting it in exercise of their powers under S.72(2) read with R.159(2) of the Rules.;
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