Aju George and Deepu C Jose v. Transport Commissioner, Trans Tower, Thiruvananthapuram; Joint Regional Transport Officers, Adoor and Uzhavoor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** ## **WP(C).No. 13135 of 2017** ## **PETITIONERS:** |**1**|**AJU GEORGE,**| |---|---| ||**S/O.GEORGE KUTTY, OVIL AJU HOUSE,**| ||**ANGADICKAL NORTH P.O, VIA KAIPPATTOOR,**| ||**ADOOR.**| |**2**|**DEEPU C JOSE,**| ||**S/O.VC.JOSE, VADAKKEKUDY RUPPIL HOUSE,**| ||**UZHAVOOR P.O, KOTTAYAM.**| ||**BY ADV. SRI.O.D.SIVADAS**| ## **RESPONDENTS:** - **1 THE TRANSPORT COMMISSIONER, TRANS TOWER, THRIUVANANTHAPURAM-695 001.** - **2 THE JOINT REGIONAL TRANSPORT OFFICER, ADOOR-689 694.** - **3 THE JOINT REGIONAL TRANSPORT OFFICER, UZHAVOOR-686 634.** **BY SRI.BIMAL K NATH, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C.13135/2017 2 ## **J U D G M E N T** The 1[st] petitioner is the owner of a stage carriage bearing registration No.KL-30 E/131, KL-35 E/3510, KL-38 E/1080 and KL26 G/7626 and the 2[nd] petitioner is the owner of vehicle bearing registration No.KL-67 A/3637. They have filed this writ petition under Article 226 of the Constitution of India seeking a direction to call for the records leading to Ext.P3 circular issued by the 1[st] respondent, Transport Commissioner and also a writ of certiorari to quash Ext.P3. The petitioner has also sought for declaration that painting of figures and photos in the vehicles do not amount of advertisement and no fee is liable to be levied as per Rule 191 of the Kerala Motor Vehicle Rules; and appropriate writ order or direction commanding the 2[nd] and 3[rd] respondents to renew the certificate of fitness of the vehicles belongs to the petitioners without insisting the payment of any amount as fee for advertisement. 2. On 16.06.2017 when this writ petition came up for admission this Court admitted the matter. The learned Government Pleader took notice for respondents and sought time to file counter affidavit. A counter affidavit has been filed by the 2[nd] respondent, opposing the reliefs sought for in this writ petition. 3. Heard the learned counsel for the petitioners and the W.P.C.13135/2017 3 learned senior Government Pleader appearing for respondents 1 to 3. 4. The learned Government Pleader has filed an adoption memo dated 05.07.2017 to adopt the counter affidavit filed in W.P. (C).No.12351 of 2017 in this writ petition. 5. Ext.P1 photographs produced along with the writ petition would show that the entire body of the petitioners' contract carriage is having gigantic figures, graphics etc. 6. The petitioner would contend that the exhibition of such gigantic figures, graphics, writings, etc. would not amount to advertisement and as such, the demand for advertisement fee is legally impermissible. The petitioner has also challenged Ext.P3 Circular No.11/2016 dated 12.04.2016 issued by the 1[st] respondent Transport Commissioner, wherein it is provided that all the officers concerned shall take action as per law against exhibition of large figures and words on contract carriages, without obtaining sanction under Rule 191 of the Kerala Motor Vehicles Rules, from the State or Regional Transport Authorities, and fee under Rule 191 of the Kerala Motor Vehicles Rules shall be collected from such vehicles. While issuing sanction, it may be noted that the figures and words so exhibited do not cross the limit of morality. W.P.C.13135/2017 4 7. This Court has already repelled the challenge made against the demand for advertisement fee under Rule 191 of the Kerala Motor Vehicles Rules, 1989 for exhibiting gigantic figures, graphics, writings, etc. all over the body of the contract carriage and also the challenge made against Ext.P3 Circular No.11/2016 dated 12.04.2016 issued by the Transport Commissioner. 8. In **Ruby v. Transport Commissioner [2019 (1) KLT 45]** this Court held that the paintwork or varnish of every transport vehicle shall be maintained in a clean and sound condition, which is the mandate of Rule 264 of the Kerala Motor Vehicles Rules, 1989. If the State or Regional Transport Authority has laid down any specifications like uniform colour scheme, the paintwork of the transport vehicle shall be in accordance with that specifications. Any figure or writing exhibited on the transport vehicle, other than the name and address of the operator to be painted or otherwise firmly affixed as per clause (g) of Section 84 of the Motor Vehicles Act, 1988; the 'emergency information panel' provided under Rule 134 of the Central Motor Vehicles Rules, 1989 for goods carriages used for transporting any dangerous or hazardous goods; the particulars enumerated in clauses (a) to (g) of Rule 93 of the Kerala Motor Vehicles Rules, painted on the body of the vehicle; the name of the institution exhibited in educational W.P.C.13135/2017 5 institution bus and private service vehicle as per Rule 291 of the Kerala Motor Vehicles Rules; etc., falls within the scope of Rule 191 of the Kerala Motor Vehicles Rules. Any such figure or writing exhibited on the transport vehicle with an object to invite public attention and to promote the contract or stage carriage service of the operator will attract the provisions of Rule 191 of the Kerala Motor Vehicles Rules. Therefore, any demand for levy and collection of fee for exhibiting such figures and wordings on the contract carriage, in terms of the provisions under Rule 191 of the Kerala Motor Vehicles Rules, taking note of Circular No.11/2016 dated 12.04.2016, is perfectly legal and the direction contained in the said circular to that extent is perfectly legal. Paragraph 45 of the said decision reads thus; “45. The fact that the petitioner exhibited gigantic figures of eminent international football players all over the body of her contract carriage, without obtaining permission under Rule 191 of the K.M.V. Rules and remitting the requisite fee as per sub-rule (1) of Rule 191, is not in dispute. The photographs of the vehicle, placed on record as Ext. P3 and Ext. R2(a), would make it explicitly clear that the figures and writings are exhibited in that vehicle with the sole object to invite public attention and to promote the contract carriage service of the petitioner, which squarely fall within the scope of Rule 191 of the K.M.V. Rules, attracting levy and collection of the fee prescribed under sub-rule (1) of Rule 191. Therefore, any demand for levy and collection of W.P.C.13135/2017 6 fee for exhibiting such figures and wordings on the petitioner's contract carriage, in terms of the provisions under Rule 191 of the K.M.V. Rules, taking note of Ext. P1 circular, is perfectly legal and the direction contained in Ext. P1 circular to that extent is perfectly legal. However, the question that has to be decided is whether on payment of the requisite fee the petitioner can be granted sanction to exhibit such figures and writing on her contract carriage.” 9. In **Ruby's case (supra)** this Court held further that the exhibition of writings and gigantic figures on vehicles by its very nature are intended to attract attention, which would cause distraction to the drivers of other vehicles, cyclists and even pedestrians on the public road. Earning of revenue by the State by the levy of fee under Rule 191 of the Kerala Motor Vehicles Rules or generation of some additional income by the operator of the transport vehicle should not be at the cost of public safety. Therefore, exhibition of writings or figures with the sole object to invite public attention and to promote the contract or stage carriage service should not be permitted by levying fee under Rule 191 of the Kerala Motor Vehicles Rules. Paragraphs 46 and 47 of the said decision read thus; “46. The exhibition of writings and gigantic figures on vehicles by its very nature are intended to attract attention, which would cause distraction to the drivers of other vehicles, cyclists and even pedestrians on the public road. Driver distraction is one of the major cause of road W.P.C.13135/2017 7 accidents, which is a situation where the attention of the driver is diverted to any other forms of activities, which may affect the concentration of driving activity as well as the safety of the passengers and others on public road. Earning of revenue by the State by the levy of fee under Rule 191 of the K.M.V. Rules or generation of some additional income by the operator of the transport vehicle should not be at the cost of public safety. Therefore, exhibition of writings or figures with the sole object to invite public attention and to promote the contract or stage carriage service should not be permitted by levying fee under Rule 191 of the K.M.V. Rules. 47. As already noticed, the paintwork of every transport vehicle shall be maintained in a clean and sound condition, as contemplated by Rule 264 of the K.M.V. Rules. While approving the matter intended to be exhibited on the vehicle, in exercise of the powers under sub-rule (2) of Rule 191 of the K.M.V. Rules, the State or the Regional Transport Authority shall ensure that it does not cause distraction to the drivers of other vehicles and also cyclists and pedestrians on public road. No approval under sub-rule (2) of Rule 191, shall be granted for exhibition of any advertisements, writings, figures, graphics, etc. On the body of a transport vehicle, at places intended for exhibiting the name and address of the operator as per clause (g) of Section 84 of the MV Act; the 'emergency information panel' as per Rule 134 of the CMV Rules for goods carriages used for transporting any dangerous or hazardous goods; the particulars enumerated in clauses (a) to (g) of Rule 93 of the K.M.V. Rules; the name of the institution exhibited in educational institution bus and private service vehicle as per Rule 291 of the K.M.V. Rules; etc. In the case of a stage carriage in respect of which uniform colour scheme has been W.P.C.13135/2017 8 implemented under Rule 264 of the K.M.V. Rules, vide the decision of the State Transport Authority dated 04.01.2018, no approval under sub-rule (2) of Rule 191, shall be granted for exhibition of any advertisements, writings, figures, graphics, etc., over the three equally spaced white lines painted below the height of the wheel arch.” 10. In **Ruby's case (supra)** , after referring to the law laid down by the Apex Court in **Avishek Goenka v. Union of India [(2012) 5 SCC 321]** and **Avishek Goenka (2) v. Union of India [(2012) 8 SCC 441]** this Court held that, in view of the provisions under Rule 100 of the Central Motor Vehicles Rules and the law laid down by the Apex Court in the decisions referred to supra, tampering with the percentage of visual transmission of light of the safety glass of the windscreen, rear window and side windows of a motor vehicle, either by pasting any material upon the safety glass or by fixing sliding 'cloth curtains', etc. are legally impermissible. No approval under sub-rule (2) of Rule 191 of the Kerala Motor Vehicles Rules, shall be granted for exhibition of any advertisements, writings, figures, graphics, etc. on the safety glasses of a transport vehicle, which shall always be maintained in such a condition that the visual transmission of light is not less than that prescribed under sub-rule (2) of Rule 100 of the Central Motor Vehicles Rules. Paragraphs 48 to 53 of the said decision read thus; W.P.C.13135/2017 9 “48. Rule 100 of the CMV Rules deals with safety glasses. As per sub-rule (2) of Rule 100, the glass of the windscreen and rear window of every motor vehicle shall be such and shall be maintained in such a condition that the visual transmission of light is not less than 70%. The glasses used for side window are such and shall be maintained in such condition that the visual transmission of light is not less than 50% and shall conform to the standards specified in subrule (2). In the instant case, Ext. P3 and Ext. R2(a) [wrongly marked as Ext. R3(a)] photographs would show that there are writings and figures on the safety glass fitted on the petitioner's contract carriage. The safety glass used for rear window is almost covered by two gigantic figures of international football players, thereby reducing visual transmission of light to 0% in respect of a considerably large area of the rear window. The colour photographs produced as Ext. R2(a), along with the counter affidavit filed by the 2nd respondent, would show that the safety glass of the rear window and that of the side windows are covered by sliding 'cloth curtains' and it appears that 'sun control' film, i.e., 'tinted film' is pasted on the safety glass. Figures and writings are there on the safety glass fixed on both sides, i.e., the left and right sides of the vehicle. ## 49. In **Avishek Goenka v. Union of India [(2012) 5 SCC** **321]** the Apex Court prohibited the use of black films of any visual transmission of light percentage or any other material upon the safety glasses, windscreens (front and rear) and side glasses of all vehicles throughout the country. The Apex Court ordered that the Home Secretary, Director General/Commissioner of Police of the respective States/Centre shall ensure compliance with the direction contained in the judgment, which shall become operative W.P.C.13135/2017 10 and enforceable with effect from 04.05.2012. Paragraphs 39 and 40 of the said decision reads thus; "39. The manufacturer of the vehicle may manufacture the vehicles with tinted glasses which have visual light transmission (VLT) of safety glasses windscreen (front and rear) as 70% VLT and side glasses as 40% VLT, respectively. No black film or any other material can be pasted on the windscreens and side glasses of a vehicle. 40. For the reasons aforestated, we prohibit the use of black films of any VLT percentage or any other material upon the safety glasses, windscreens (front and rear) and side glasses of all vehicles throughout the country. The Home Secretary, Director General/Commissioner of Police of the respective States/Centre shall ensure compliance with this direction. The directions contained in this judgment shall become operative and enforceable with effect from 4.5.2012." 50. In **Avishek Goenka's case (supra)** the Apex Court held further that, the legislative intent attaching due significance to the 'public safety' is evident from the object and reasons of the MV Act, 1988, the provisions of the said Act and more particularly, the rules framed thereunder. The Apex Court noticed that use of black films certainly helps the criminals to escape from the eyes of the police and aids in the commission of heinous crimes like sexual assault on women, robberies, kidnapping, etc. If these crimes can be reduced by enforcing the prohibition of law, it would further the cause of Rule of Law and Public Interest as well. Paragraph 19 of the said decision reads thus; "19. The legislative intent attaching due significance to the 'public safety' is evident from the object and W.P.C.13135/2017 11 reasons of the Act, the provisions of the Act and more particularly, the Rules framed thereunder. Even if we assume, for the sake of argument, that Rule 100 is capable of any interpretation, then this Court should give it an interpretation which would serve the legislative intent and the object of framing such rules, in preference to one which would frustrate the very purpose of enacting the Rules as well as undermining the public safety and interest. Use of these black films have been proved to be criminal's paradise and a social evil. The petitioner has rightly brought on record the unanimous view of various police authorities right from the States of Calcutta, Tamil Nadu and Delhi to the Ministry of Home Affairs that use of black films on vehicles has jeopardized the security and safety interests of the State and public at large. This certainly helps the criminals to escape from the eyes of the police and aids in commission of heinous crimes like sexual assault on women, robberies, kidnapping, etc. If these crimes can be reduced by enforcing the prohibition of law, it would further the cause of Rule of Law and Public Interest as well." 51. In **Avishek Goenka (2) v. Union of India [(2012) 8 SCC 441]** the Apex Court, while dismissing all applications filed seeking clarification and modification of the judgment in **Avishek Goenka's case [(2012) 5 SCC 321]** reiterated that, in terms of Rule 100 of the CMV Rules, no material including films of any issual transmission of light can be pasted on the safety glasses of the car and this law is required to be enforced without demur and delay. Paragraph 23 of the said decision reads thus; "23. We are really not emphasizing on the security threat to the society at large by use of black films W.P.C.13135/2017 12 but it is a clear violation of law. Thus, we pass the following orders: (1) All the applications filed for clarification and modification are dismissed, however, without any order as to costs. (2) All the Director Generals of Police/ Commissioners of Police are hereby again directed to ensure complete compliance of the judgment of this Court in its true spirit and substance. They shall not permit pasting of any material, including films of any VLT, on the safety glasses of any vehicle. (3) We reiterate that the police authorities shall not only challan the offenders but ensure that the black or any other films or material pasted on the safety glasses are removed forthwith. (4) We make it clear at this stage that we would not initiate any proceedings against the Director Generals of Police/Commissioners of Police of the respective States/Union Territories but issue a clear warning that in the event of non-compliance of the judgment of this Court now, and upon it being brought to the notice of this Court, the Court shall be compelled to take appropriate action under the provisions of the Contempt of Courts Act, 1971 without any further notice to the said officers. We do express a pious hope that the high responsible officers of the police cadre like Director General/ Commissioner of Police would not permit such a situation to arise and would now ensure compliance of the judgment without default, demur and delay. (5) Copies of this judgment be sent to all concerned by the Registry including the Chief Secretaries of the respective States forthwith." 52. In **Avishek Goenka's case (2)** , in the applications filed by the manufacturers and distributors of 'tinted films', one W.P.C.13135/2017 13 of the contentions raised was that in the day time when 'tinted films' are pasted upon the safety glasses, still the face and the body of the occupant of the car is visible from outside. In order to substantiate the said fact certain photographs were placed on record. The Apex Court, while dismissing the interlocutory applications observed that, the case put forward by the applicants is a case of change in law and not one of improper interpretation, which is not the function of the Apex Court, and that, the Court has interpreted Rule 100 of the CMV Rules as it exists on the Statute book. Paragraphs 17 to 19 of the said decision read thus; "17. The manufacturer and distributors have placed certain material before us, including some photographs and reports of the American Cancer Society, to show that mostly skin cancer is caused by too much exposure to ultra - violet rays. From these photographs, attempt is made to show that in the day time when the films are pasted upon the safety glasses, still the face and the body of the occupant of the car is visible from outside. It is also stated that certain amendments were proposed in the Code of Virginia relating to the use of sun shading and tinting films, on the motor vehicles. Relying upon the material relating to America, it is stated that there are large number of cancer cases in USA and the framers of the law have amended the provisions or are in the process of amending the provisions. This itself shows that it is a case of change in law and not one of improper interpretation, which is not the function of this Court. 18. To counter this, the petitioner has filed a detailed reply supported by various documents. This shows that tinted glasses have been banned in a number of W.P.C.13135/2017 14 countries and it is not permissible to use such glasses on the windows of the vehicle. Annexure-A1 and A3 have been placed on record in relation to New South Wales, Australia, Afghanistan and some other countries. He has also placed on record a complete research article on the cancer scenario in India with future perspective which has specifically compared India as a developing country with developed countries like USA and has found that cancer is much less in India despite the fact that most of the Indian population is exposed to ultraviolet rays for the larger part of the day for earning their livelihood for their daily works, business and other activities. 19. This controversy arising from the submissions founded on factual matrix does not, in our opinion, call for any determination before this Court. As already noticed, the Court has interpreted Rule 100 as it exists on the Statute book. The environment, atmosphere and geographical conditions of each country are different. The level of tolerance and likelihood of exposure to a disease through sun rays or otherwise are subjective matters incapable of being examined objectively in judicial sense. The Courts are neither required to venture upon such determination nor would it be advisable." (underline supplied) 53. A reading of the provisions under Rule 100 of the CMV Rules, which deals with safety glasses, makes it explicitly clear that the glass of the windscreen and rear window of every motor vehicle shall always be maintained in such a condition that the visual transmission of light is not less than 70%. Similarly, the glasses used for side windows of every motor vehicle shall always be maintained in such a condition W.P.C.13135/2017 15 that the visual transmission of light is not less than 50%. The specifications for safety glasses, which the manufacturer of a motor vehicle is required to adhere to while manufacturing the vehicle are exhaustively dealt with under Rule 100 of the CMV Rules. After referring to the said provisions, the Apex Court in **Avishek Goenka's case (supra)** prohibited the use of black films of any visual transmission of light percentage or any other material upon the safety glasses, windscreens (front and rear) and side glasses of all vehicles throughout the country. In **Avishek Goenka's case (2)** , the applications filed by the manufacturers and distributors of 'tinted films' seeking clarification and modification of the judgment in **Avishek Goenka's case (supra)** were dismissed, repelling their contention that that in the day time when 'tinted films' are pasted upon the safety glasses, still the face and the body of the occupant of the car is visible from outside. Therefore, in view of the provisions under Rule 100 of the CMV Rules and the law laid down by the Apex Court in the decisions referred to supra, tampering with the percentage of visual transmission of light of the safety glass of the windscreen, rear window and side windows of a motor vehicle, either by pasting any material upon the safety glass or by fixing sliding 'cloth curtains', etc. are legally impermissible. No approval under sub-rule (2) of Rule 191, shall be granted for exhibition of any advertisements, writings, figures, graphics, etc. on the safety glasses of a transport vehicle, which shall always be maintained in such a condition that the visual transmission of light is not less than that prescribed under sub-rule (2) of Rule 100. The colour photographs produced as Ext. R2(a) [wrongly marked as Ext. R3(a)], along with the counter affidavit filed by the 2nd respondent, would W.P.C.13135/2017 16 show that the safety glasses fitted on the petitioner's contract carriage are not maintained as per the specifications prescribed under Rule 100 of the CMV Rules.” 11. In **Ruby's case (supra)** this Court held that, going by the mandate of Rules 50 and 51 of the Central Motor Vehicles Rules, every motor vehicle used in any public place shall display registration mark as specified in the aforesaid Rules, at the specified place. In view of the law laid down by the Apex Court in **Avishek Goenka's case (supra)** every motor vehicle, including transport vehicles shall be fitted with the lights which are specifically provided for in the Central Motor Vehicles Rules and what has not been specifically stated in the said Rules would obviously be deemed to have been excluded from that Rules. The certificate of fitness of a transport vehicle issued in Form No.38 contains a certification that the vehicle complies with the provisions of the Motor Vehicles Act and the rules made thereunder. Therefore, a transport vehicle fitted with unauthorised lights, cannot be treated as a vehicle which complies with the provisions of the Motor Vehicles Act and the rules made thereunder, for the purpose of grant of certificate of fitness. Paragraphs 54 to 59 of the said decision read thus; “54. Rule 50 of the CMV Rules, which deals with the form and manner of display of registration marks on motor vehicles and clauses (i) to (iv) deals with the specifications W.P.C.13135/2017 17 of the security license plate, which shall be displayed on both front and rear of the motor vehicles clearly and legibly. Clause (vi) of sub-rule (1) of Rule 50 specifies the size of the plates for different categories of vehicles. Sub-rule (2) of Rule 50 deals with the manner in which the registration mark of a motor vehicle has to be displayed. As per clause (a) of sub-rule (2), the registration mark exhibited at the rear of a transport vehicle shall be at the right hand side, at a distance not exceeding one metre from ground. As per clause (b) of sub-rule (2), the registration marks shall also be painted on the right and left side on the body of a vehicle in the case of a transport vehicle. As per sub-rule (3) of Rule 50, registration marks shall be exhibited in two line, the State code and registration code forming the first line and rest forming the second line, one below the other. As per the third proviso to sub-rule (3), the registration mark of the light motor vehicle may be in the center with illumination. Sub-rule (4) of Rule 50 mandates that every motor vehicle except motor cab and motorcar, manufactured on and from the date of commencement of the Central Motor Vehicle (Amendment) Rules, 1993 shall be provided with sufficient place in the rear for display of registration mark in two lines. Rule 51 deals with the size of letters and numerals of registration mark, which provides for the dimension of letters or figures of the registration mark and the space between different letters and numbers and letters and edge to the plain surface in the case of various motor vehicles. 55. Going by the mandate of Rules 50 and 51 of the CMV Rules, every motor vehicle used in any public place shall display registration mark as specified in the aforesaid Rules, at the specified place. In the case of a transport vehicle, the registration mark exhibited on the rear shall be on the right W.P.C.13135/2017 18 hand side, as mandated by clause (a) of sub-rule (2); the registration mark shall be painted on the right and left side on the body, as mandated by clause (b) of sub-rule (2); and the registration mark shall be exhibited in two lines, the State code and registering authority code forming the first line and rest forming the second line, one below the other, as mandated by sub-rule (3) of Rule 50. In the instant case, Ext. P3 and Ext. R2(a) [wrongly marked as Ext. R3(a)] photographs would show that, the registration mark exhibited on the rear of the petitioner's contract carriage is not on the right hand side; the registration mark is not painted on the right and left side on the body, instead number plates are fitted over the figures painted on the body. As per clause (b) of sub-rule (2) of Rule 50, the registration mark on the right and left side of every transport vehicle has to be painted on the body and the mandate of the said clause cannot be complied with by affixing registration mark on the body using self adhesive stickers or by affixing number plates. As per sub-regulation (1) of Regulation 36 of the Driving Regulations, 2017, no vehicle shall be driven or parked on a public road without displaying registration plates as prescribed by the MV Act and the Rules made thereunder. 56. Rule 102 of the CMV Rules deals with signalling devices, direction indicators and stop lights; Rule 104 deals with fitment of reflectors; and Rule 105 deals with lamps. As per sub-rule (1) of Rule 105, save as provided in the said Rule, every motor vehicle, while being driven in public place during the period half an hour after sunset and at any time when there is no sufficient light, shall be lit with the lamps enumerated in clauses (a) to (d) of sub-rule (1). Rule 106 of the CMV Rules provides for deflection of lights; Rule 107 W.P.C.13135/2017 19 deals with top lights for goods vehicle including trailer and semi-trailer other than three wheelers and vehicle with overall width not exceeding 2.1 metres; Rule 108 deals with use of red, white or blue light for certain purposes; Rule 109 deals with parking lights; and Rule 111 deals with prohibition of spot lights; etc. 57. In **Avishek Goenka's case [(2012) 5 SCC 321]** , after referring to the provisions under Rules 100, 104, 104A, 106, 119 and 120 of the CMV Rules, the Apex Court held that the CMV Rules deal with every minute detail of construction and maintenance of a vehicle. In other words, the standards, sizes and specifications which the manufacturer of a vehicle is required to adhere to while manufacturing the vehicle are exhaustively dealt with under the Rules. What is permitted has been specifically provided for and what has not been specifically stated would obviously be deemed to have been excluded from these Rules. It would neither be permissible nor possible for the court to read into these statutory provisions, what is not specifically provided for. The Apex Court held further that, these provisions demonstrate the extent of minuteness in the Rules and the efforts of the framers to ensure, not only the appropriate manner of construction and maintenance of vehicle, but also the safety of other users of the road. Paragraphs 18 to 21 of the said decision read thus; "18. From the above provisions, it is clear that the Rules deal with every minute detail of construction and maintenance of a vehicle. In other words, the standards, sizes and specifications which the manufacturer of a vehicle is required to adhere to while manufacturing the vehicle are exhaustively dealt with under the Rules. What is permitted has W.P.C.13135/2017 20 been specifically provided for and what has not been specifically stated would obviously be deemed to have been excluded from these Rules. It would neither be permissible nor possible for the Court to read into these statutory provisions, what is not specifically provided for. These are the specifications which are in consonance with the prescribed IS No. 2553 - Part 2 of 1992 and nothing is ambiguous or uncertain. 19. Let us take a few examples. Rule 104 requires that every motor vehicle, other than three wheelers and motor cycles shall be fitted with two red reflectors, one each on both sides at their rear. Every motor cycle, shall be fitted with at least one red reflector at the rear. Rule 104A, provides that two white reflex in the front of the vehicle on each side and visible to oncoming vehicles from the front at night. 20. Rule 106 deals with deflections of lights and requires that no lamp showing a light to the front shall be used on any motor vehicle including construction equipment vehicle unless such lamp is so constructed, fitted and maintained that the beam of light emitted therefrom is permanently deflected downwards to such an extent that it is not capable of dazzling any person whose eye position is at a distance of 8 metres from the front of lamp etc. Rule 119 and Rule 120 specify the kind, size and manner in which the horn and silencer are to be fixed in a vehicle. 21. These provisions demonstrate the extent of minuteness in the Rules and the efforts of the framers to ensure, not only the appropriate manner of construction and maintenance of vehicle, but also the safety of other users of the road." W.P.C.13135/2017 21 58. In view of the law laid down by the Apex Court in **Avishek Goenka's case (supra)** every motor vehicle, including transport vehicles shall be fitted with the lights which are specifically provided for in the CMV Rules and what has not been specifically stated in the said Rules would obviously be deemed to have been excluded from that Rules. Therefore, no motor vehicle, including a transport vehicle, can be fitted with lights which are not specifically provided for in the CMV Rules. In the instant case, Ext. P3 and Ext. R2(a) [wrongly marked as Ext. R3(a)] photographs would show that unauthorised lights are fitted on the petitioner's contract carriage. 59. The certificate of fitness of a transport vehicle issued in Form No. 38 contains a certification that the vehicle complies with the provisions of the MV Act and the rules made thereunder. As per the proviso to sub-rule (1) of Rule 62, the renewal of a fitness certificate shall be made only after carrying out the tests specified in the Table given in Rule 62. Rule 62 contemplates checking the condition of spark plug/suppressor cap/high tension cable, head lamp beams, other lights, reflectors, bulbs, rear view mirror, safety glass, horn, silencer, dash board equipment, windshield wiper, exhaust emission, braking system, speedometer and steering gear; functioning of all the aforesaid items except the reflectors, bulbs, rear view mirror, safety glasses and exhaust emission; the make/rating, etc. of spark plug/suppressor cap/high tension cable, bulbs and safety glass as per original equipment recommendations. While checking other lights it has to be ensured that unauthorised lights are not fitted; while checking reflectors it has to be ensured that the colour of reflectors and reflective tapes are as per Rule 104; while W.P.C.13135/2017 22 checking bulbs it has to be ensured that head light bulbs wattage, especially halogen, is not higher than those indicated in IS 1606-1993 and also that halogen bulbs with P45t caps are not used in all vehicles; while checking safety glasses it has to be ensured that laminated windscreen glass is used for vehicles manufactured from April, 1996 onwards; etc. Therefore, a transport vehicle fitted with unauthorised lights, cannot be treated as a vehicle which complies with the provisions of the MV Act and the rules made thereunder, for the purpose of grant of certificate of fitness.” 12. As per sub-rule (1) of Rule 108 of the Central Motor Vehicles Rules, no motor vehicle shall show a red light to the front or light other than red to rear. Going by clause (i) of the proviso to sub-rule (1), the provisions under this rule shall not apply to the internal lighting of the vehicle. Rule 128 of the Central Motor Vehicle Rules deals with special provisions for tourist vehicles, which are granted tourist permits under sub-section (9) of Section 88 of the Motor Vehicles Act, read with Rule 82 of the Central Motor Vehicles Rules, by the State Transport Authority. Sub-rule (12) of Rule 128 deals with lighting of tourist vehicles. As per clause (i) of sub-rule (12), the passenger compartment of a tourist vehicle shall be adequately illuminated; arrangement shall be provided to eliminate reflection of the light from the passenger compartment on the windscreen; and in addition to the lights in passenger compartment, at least two night-lights with coloured W.P.C.13135/2017 23 domes, shall be provided in the passenger compartment. As per clause (iii) of sub-rule (12), one independently operated light fitting shall be provided for illumination of the driver’s or attendant’s seat area. 13. Clause (35) of Section 2 of the Motor Vehicles Act define 'public service vehicle' to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage. Part III of Chapter VII of the Kerala Motor Vehicles Rules deals with special rules applicable to every public service vehicle other than an autorickshaw. Rule 286 of the Kerala Motor Vehicles Rules, which deals with internal lighting, provides that every vehicle shall be furnished with one or more electric lights adequate to give reasonable illumination throughout the passenger compartment or compartments but of such power or so screened as not to impair the forward vision of the driver. 14. The internal lighting in a contract carriage, which is a public service vehicle, is for the purpose of providing reasonable illumination throughout the passenger compartment. As provided under Rule 286 of the Kerala Motor Vehicles Rules, the passenger compartment of a public service vehicle shall be furnished with electric lights adequate to give reasonable illumination throughout W.P.C.13135/2017 24 the passenger compartment. Therefore, the passenger compartment of a contract carriage cannot be fitted with continuously blinking multi-coloured LED lights, laser lights, etc., in order to convert it as a dancing floor. 15. As per clause (o) of sub-section (1) of Section 110 of the Motor Vehicles Act, the Central Government may make rules with respect to the placement of audio-visual or radio or tape recorder type of devices in public vehicles. Clause (g) of subsection (2) of Section 111, which empowered the State Government to make rules with respect to the placement of audiovisual or radio or tape recorder type of devices in the vehicle, was omitted by the Motor Vehicles (Amendment) Act, 1994. Rule 289 of the Kerala Motor Vehicles Rules made by the State Government, in exercise of its power under clause (g) of sub-section (2) of Section 111 (prior to its omission), provides that no public service vehicle other than a contract carriage shall be installed with any audio-visual devices. In **George v. State of Kerala [2005 (2) KLT 717]** , a decision relied on by the learned Senior Counsel for the petitioners, this Court held that Rule 289 of the Kerala Motor Vehicles Rules framed by the State Government, in exercise of its power under clause (g) of sub-section (2) of Section 111 of the Motor Vehicles Act, continues to be in force until repealed or W.P.C.13135/2017 25 replaced by new rules framed by the Central Government. 16. As per Regulation 3 of the Motor Vehicles (Driving) Regulations, 2017 made by the Central Government, in exercise of the power conferred by Section 118 of the Motor Vehicles Act, which deals with duty towards other road users and general public, no vehicle shall be driven, stopped or parked on a road or in a public place in such a manner as is likely to endanger the safety of or cause inconvenience to other road users. Regulation 5 deals with duties of drivers and riders. As per clause (3) of Regulation 5, the driver shall at all times maintain a good lookout and concentrate on the road and traffic and avoid any activity which distract or is likely to distract his attention. As per clause (6), the driver shall ensure that his view is not obstructed and his hearing is not impaired by passengers, animals, load, equipment in the vehicle or by the conditions of the vehicle. Clause (10) of Regulation 5 mandates that the driver shall ensure that loud music is not played in the vehicle. 17. Neither the provisions of Rule 289 of the Kerala Motor Vehicles Rules nor the provisions under AIS: 052 (Rev.-1): 2008 enable installation of high-power audio system with multiple power amplifiers, speakers and sub-woofers in a contract carriage. Loud music from such high-power audio systems will certainly endanger W.P.C.13135/2017 26 the safety of other road users and will cause inconvenience to them; will distract the attention of the attention of the driver of the vehicle and impair his hearing; thereby violating the provisions under Regulations 3 and also clauses (3) and (6) of Regulation 5 of the Motor Vehicles (Driving) Regulations, 2017. Loud music from such high-power audio systems will also violate the provisions of clause (10) of Regulation 5, which provides that the driver shall ensure that loud music is not played in the vehicle. 18. Installation of high-power audio system with multiple booster/power amplifiers, speakers and sub-woofers cannot be permitted in a motor vehicle, since the loud sound produced by such audio systems with rating of several thousand watts of Peak Music Power Output will not only impair the hearing of the driver and the passengers, but also cause distraction to other drivers and road users. Therefore, no motor vehicle can be fitted with highpower speakers or sub-woofers with multiple booster/ power amplifiers. Fixing high-power speakers or sub-woofers, with enclosures made of wood or other materials, inside the passenger compartment of a motor vehicle cannot be permitted. Similarly, installation of DJ (Disc Jockey) sound system with DJ mixer, DJ rotating LED lights, laser lights, Karaoke systems, etc. which are typically meant for dance party, cannot be permitted in the W.P.C.13135/2017 27 passenger compartment of a transport vehicle. The continuously blinking DJ rotating LED lights, multi-coloured LED/ laser lights fitted in the passenger compartment, in order to convert it as a dancing floor for the passengers, will certainly cause distraction to other drivers and also to road users. Moreover, mixing up of AC and DC power supply for such high-power audio systems with DJ mixer, DJ dancing lights, laser lights, etc., violating safety standards, poses a potential fire hazard to the passengers. 19. In **Forum, Prevention of Environmental and Sound Pollution v. Union of India [(2005) 5 SCC 733]** the Apex Court, in the context of noise pollution in public place vis a vis right to life enshrined in Article 21 of the Constitution of India, observed that Indian judicial opinion has been uniform in recognising the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution, and noise pollution beyond permissible limits as an inroad into that right. People indulge in making noise beyond tolerable limits and create a health hazard unmindful of consequences which are likely to befall not only others but also themselves who create noise. Not only the use of loudspeakers and playing of hi-fi amplifier systems has to be regulated, even the playing of high sound instruments like drums, tom-toms, trumpets, bugles and the like which create W.P.C.13135/2017 28 noise beyond tolerable limits need to be regulated. The law enforcing agencies must be equipped with necessary instruments and facilities out of which sound level meters conforming to the Bureau of Indian Standards (BIS) code are a bare necessity. 20. The loud sound produced by such high-power audio systems in the passenger compartment of a motor vehicle poses a potential health hazard to the passengers. The use of high-power audio system with multiple booster/power amplifiers, speakers and sub-woofers producing such loud noise is legally impermissible in a motor vehicle, in view of the provisions under the Motor Vehicles (Driving) Regulations, 2017 referred to hereinbefore and also the provisions under Noise Pollution (Regulation and Control) Rules, 2000. Therefore, the petitioners' contract carriages, which are fitted with high-power audio system having multiple booster/power amplifiers, speakers and sub-woofers producing loud noise, and also DJ rotating LED lights, continuously blinking multi-coloured LED lights, laser lights, etc. cannot be treated as vehicles which comply with the provisions of the Motor Vehicles Act and the rules made thereunder, for the purpose of grant of certificate of fitness. 21. In the instant case, admittedly the petitioners have not obtained any sanction under Rule 191 of the Kerala Motor Vehicles W.P.C.13135/2017 29 Rules for the purpose of displaying any advertisements, figures or writings on their contract carriages. Therefore, it is for the petitioners to remove all such figures, writings, etc., exhibited on their vehicles with an object to invite public attention and to promote their contract carriage services, and maintain the paintwork of their transport vehicles in a clean and sound condition, as contemplated by Rule 264 of the Kerala Motor Vehicles Rules. The petitioners shall remove the unauthorised lights fitted on their vehicles and provide signalling devices, direction indicators, reflectors, lights, etc. as specified in Rules 102, 104, 105, etc. of the Central Motor Vehicles Rules. The petitioners shall remove any DJ rotating LED lights, continuously blinking multi-coloured LED lights, laser lights, etc. used for internal lighting and maintain electric lights adequate to give reasonable illumination throughout the passenger compartment, as specified under Rule 286 of the Kerala Motor Vehicles Rules. The petitioners shall remove high-power audio system installed in their vehicles, having multiple booster/power amplifiers, speakers and sub-woofers producing loud noise, and also DJ rotating LED lights, continuously blinking multi-coloured LED lights, laser lights, etc. and maintain an audio system with four or six speakers, depending upon the size of the passenger compartment, with W.P.C.13135/2017 30 sufficient power to distribute reasonable sound throughout the passenger compartment. The petitioners shall also maintain the safety glasses of their vehicles as per the specifications prescribed under Rule 100 of the Central Motor Vehicles Rules; display the registration marks as prescribed by Rules 50 and 51 of the Central Motor Vehicles Rules; exhibit the name and address of the operator as specified in clause (g) of Section 84 of the Motor Vehicles Act; exhibit the particulars enumerated in clauses (a) to (g) of Rule 93 of the Kerala Motor Vehicles Rules; etc. Thereafter, the petitioners shall produce their vehicles for inspection before the 2[nd] respondent within three weeks from the date of receipt of a certified copy of this judgment. On such production, the 2[nd] respondent shall conduct inspection of the vehicles by an inspection team consisting of officers holding the requisite technical qualification, in order to satisfy that the vehicles comply with the provisions under the Motor Vehicles Act and the rules made thereunder. 22. Minor defects, if any, found on such inspection shall be permitted to be rectified by the petitioners, within a time limit to be fixed by the 2[nd] respondent. If, based on the report of the inspection team, the Registering Authority is satisfied that the petitioners' contract carriages, which have been issued with a W.P.C.13135/2017 31 fitness certificate, no longer comply with all the requirements of the Motor Vehicles Act and the rules made thereunder, proceedings under sub-section (4) of Section 56 of the Motor Vehicles Act for cancellation of the certificate of fitness of the petitioners vehicles shall be initiated forthwith, in accordance with the procedure contemplated under sub-section (4), which shall be finalised without any delay. In the result, the challenge made in this writ petition against Ext.P3 Circular No.11/2016 dated 12.04.2016 is repelled for the reasons stated hereinbefore and the writ petition is disposed of with the aforesaid directions. The petitioners are also not entitled for other reliefs sought for and the writ petition is disposed of with the aforesaid directions. It will be open to the petitioners to submit their objections, if any, to the demand for advertisement fee made by the 2[nd] respondent, which shall be considered by the said respondent, with notice to the petitioner, before proceeding further. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN** ## **JUDGE** DG W.P.C.13135/2017 32 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE PHOTOGRAPHS OF THE 1ST PETITIONER'S VEHICLES.** - **EXHIBIT P2 COPY OF THE PHOTOGRAPH OF THE 2ND PETITIONER'S VEHICLE.** - **EXHIBIT P3** - **TRUE COPY OF THE CIRCULAR NO. 11/2016 DATED 12.04.2016 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE DRAFT RULE ISSUED BY THE GOVERNMENT AS PER NOTIFICATION DATED 07.03.2014.** **EXHIBIT P5 TRUE COPY OF THE DRAFT RULE ISSUED BY THE GOVERNMENT AS PER NOTIFICATION DATED 21.11.2015.** **RESPONDENTS' EXTS:** **EXT.R2(A): TRUE COPIES OF PHOTOGRAPHS.** **EXT.R2(B): TRUE COPY OF DETAILS OF FEE REMITTED.** **EXT.R2(C): TRUE COPY OF SANCTION ORDER.**