Arun K. Babu, Sibi George and Dileep Kumar C. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** ## **WP(C).No.15001 OF 2019(A)** ## **PETITIONERS:** - **1 ARUN K.BABU, KUNNUMPURATHU HOUSE, MANARCADU P.O., KOTTAYAM 686 019.** - **2 SIBI GEORGE, PUTHUPARAMBIL, KOTHALA P.O., KOTTAYAM 686 502.** - **3 DILEEP KUMAR.C., MULACKAL HOUSE, PARAMPUZHA P.O., KOTTAYAM 686 004.** ## **BY ADV. SRI.MATHEW PHILIP EDAPPALLIL** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, SECRETARIAT, TRIVANDRUM 695 001.** - **2 TRANSPORT COMMISSIONER, TRANSPORT TOWERS, THYCAUD P.O., TRIVANDRUM 695 014.** - **3 REGIONAL TRANSPORT OFFICER, KOTTAYAM , KOTTAYAM COLLECTORATE P.O., KOTTAYAM 686 002.** ## **SRI K.P.HARISH-SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)15001 OF 2018 ## **JUDGMENT** The petitioners, who are stated to be registered owners of goods carriages bearing registration Nos.KL-38/3813, KL05/J-7774 and KL-05/Q-6628 covered by Exts.P1, P1(a) and P1(b) certificates of registration, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Regional Transport Officer, Kottayam to consider and pass appropriate orders on Ext.P4, P4(a) and P4(b) applications made by the petitioners for change of classification of their vehicles from transport vehicle to non-transport vehicle, in the light of Ext.P2 statutory order No.S.O.1248(E) dated 05.11.2004 of the Ministry of Shipping, Road Transport and Highways and Ext.P3 communication dated 31.10.2011 issued by the 2[nd] respondent Transport Commissioner. 2. Going by the averments in the writ petition, the vehicles covered by Ext.P1, P1(a) and P1(b) certificates of registration are classified as goods vehicles. The petitioners have fixed generator on the platform of their goods carriages and now they want to classify those vehicles as non-transprot 3 WP(C)15001 OF 2018 vehicles. In support of the said claim, the petitioners would place reliance on the judgment of the Division Bench of this Court dated 18.07.2011 in W.A.No.441 of 2011. 3. On 31.05.2019, when this writ petition came up for admission, this Court directed the petitioners to produce their vehicles covered by Exts.P1(a) and P1(b) certificates of registration before the 3[rd] respondent Regional Transport Officer on 03.06.2019. The said respondent was directed to conduct inspection of the vehicles and submit a report before this Court. 4. Pursuant to the order of this Court dated 31.05.2019, the petitioners have produced their vehicles before the 3[rd] respondent and the report of the said respondent is placed on record, on 10.06.2019, producing therewith the photographs of the goods carriages owned by the petitioners as Exts.R3(a), R3(b) and R3(c), respectively. 5. The petitioners have filed reply affidavit, producing therewith Ext.P7 judgment of this Court dated 10.11.2011 in W.P.(C) No.17384 of 2010 and P8 judgment of this Court dated 14.12.2010 in W.P.(C) No.37240 of 2010. 6. Heard the learned counsel for the petitioners and 4 WP(C)15001 OF 2018 also the learned Government Pleader appearing for the respondents. 7. The learned counsel for the petitioners would submit that the only relief sought for in this writ petition is consideration of Exts.P4, P4(a) and P4(b) applications made by the petitioners, in the light of Ext.P2 order dated 05.11.2004 and P3 communication. The learned counsel for the petitioners would also submit that the request made by the petitioners in Exts.P4, P4(a) and P4(b) applications are covered by the judgment of the Division Bench of this Court dated 18.07.2011 in W.A.No.441 of 2011. 8. Per contra, the learned Senior Government Pleader would place reliance on the judgment of the Division Bench of this Court in **Hassan Koya v. Transport Commissioner** **[2015 (1) KLT 916]** and the law laid down by the Apex Court in **Regional Transport Officer and others v. K.Jayachandra [(2019) 3 SCC 722]** . 9. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** , the Apex Court held that 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 5 WP(C)15001 OF 2018 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. 10. In view of the law laid down by the Apex in the decision referred to supra, any direction issued by this Court to the 3[rd] respondent to consider Exts.P4, P4(a) and P4(b) applications made by the petitioners can only be a direction to consider those applications strictly in accordance with law and not in contravention of any of the statutory provisions, as no mandamus can be issued to do something, which is contrary to law. 11. As already noticed, in support of the claim made in Exts.P4, P4(a) and P4(b) applications, the petitioners would place reliance on the judgment of a Division Bench of this Court dated 18.07.2011 in W.A.No.441 of 2011. The petitioners would also place reliance on Ext.P7 judgment dated 10.11.2011 in W.P.(C)No.17384 of 2010 and Ext.P8 judgment 6 WP(C)15001 OF 2018 ## dated 14.12.2010 in W.P.(C)No.37240 of 2010. 12. The judgment of the Division Bench in W.A.No.441 of 2011 and also Exts.P7 and P8 judgments were rendered prior to the law laid down by a Division Bench of this Court in **Bava V. v. State of Kerala and others [2014 (3) KLT 735]** ; **Hassan Koya v. Transport Commissioner, Thiruvananthapuram and another [2015 (1) KLT 916]** ; and the law laid down by the Apex Court in **Regional Transport Officer and others v. K. Jayachandra [(2019) 3 SCC 722]** . 13. The law laid down by the Apex Court in **K.Jayachandra's case (supra)** and that of the Division Bench in **Hassan Koya's case (supra)** were relied on by this Court in **EKK Infrastructure Ltd. and another v. State of Kerala and another [2019 (3) KHC 321]** . In the said decision, this Court has also taken note of the communication No.RT-11036/06/2019 - MVL dated 28.02.2019 issued by the Ministry of Road Transport and Highways on the subject 'alteration in motor vehicles'. Paragraphs 34 to 36 of the said decision read thus; “34. In view of the provisions under Section 52 of the 7 WP(C)15001 OF 2018 Motor Vehicles Act, as amended by the Motor Vehicles (Amendment) Act, 2000; the law laid down by the Apex Court in K. Jayachandra's (supra); and also the clarification issued by the Ministry of Road Transport and Highways in its communication dated 28.02.2019, Ashok Leyland 'Tipper' variant with model No.2518 T/4, which is a 'Heavy Goods Vehicle' under 'Category N3' (as per the specifications of the manufacturer and the Type Approval Certificate issued by the ARAI) cannot be altered as a 'Transit Mixer', which falls under the class of 'Construction Equipment Vehicle' by mounting Transit Mixer manufactured by M/s.Schwing Stetter (India) Pvt. Ltd. Therefore, the petitioners are not entitled to seek alteration of their 'Taurus Tippers' covered by Exts.P1 to P1(g) certificates of registration as 'Transit Mixers'. 35. The request sought for in Ext.P2 representation made by the petitioner is for alteration of their 'Taurus Tippers' covered by Exts.P1 to P1(g) certificates of registration as 'Concrete / Transit Mixers', which is legally impermissible under Section 52 of the Motor Vehicles Act, in view of the law laid down by the Apex Court in K. Jayachandra's case (supra). 36. The law laid down by the Apex Court in the said decision was relied on by this Court in Raju Chacko v. State of Kerala and others [2019 (1) KLT 668] wherein it was held that a 'Heavy Goods Vehicle' under 'Category N3' cannot be altered at variance with the specifications of the manufacturer, as contained in the Prototype Test Certification, and used or registered as a 'Construction Equipment Vehicle', after mounting a 'Boom Concrete 8 WP(C)15001 OF 2018 Pump', and classifying the vehicle as 'Non-Transport Vehicle'.” 14. In such circumstances, this writ petition is disposed of by directing the 3[rd] respondent to consider the requests made by the petitioners in Exts.P4, P4(a) and P4(b) applications and take appropriate decision thereon, strictly in accordance with law, taking note of the law laid down by the Apex Court in **K.Jayachandra's case (supra)** and that of this Court in **Bava's case** , **Hassan Koya's case** and **EKK Infrastructure's case** referred to supra and also the communication dated 28.02.2019 of the Ministry of Road Transport and Highways on the subject 'alteration in motor vehicles'. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 9 WP(C)15001 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF CERTIFICATE OF REGISTRATION IN FAVOUR OF FIRST PETITIONER ARUN K BABU.** **EXHIBIT P1 A TRUE PHOTOCOPY OF CERTIFICATE OF REGISTRATION IN FAVOUR OF SECOND PETITIONER SIBI GEORGE.** - **EXHIBIT P1 B TRUE PHOTOCOPY OF CERTIFICATE OF REGISTRATION IN FAVOUR OF THIRD PETITIONER DILEEP KUMAR.C.** - **EXHIBIT P2 TRUE PHOTOCOPY OF S.O. 1248/(E) DATED 5.11.2004 OF THE MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS.** - **EXHIBIT P3 TRUE PHOTOCOPY OF COMMUNICATION C3/16009/TC/2011 DATED 31.10.2011 OF THE SECOND RESPONDENT.** - **EXHIBIT P4 TRUE PHOTOCOPY OF APPLICATION DATED 20.5.19 FILED BY THE FIRST PETITIONER BEFORE THE THIRD RESPONDENT.** - **EXHIBIT P4 A TRUE PHOTOCOPY OF THE APPLICATION DATED 20.5.19 FILED BY THE SECOND PETITIONER BEFORE THE THIRD RESPONDENT.** - **EXHIBIT P4 B TRUE PHOTOCOPY OF THE APPLICATION DATED 20.5.19 FILED BY THE THIRD PETITIONER BEFORE THE THIRD RESPONDENT.** **EXHIBIT P5 TRUE PHOTOCOPY OF THE POSTAL RECEIPTS OF EXT.P4 EXHIBIT P6 TRUE PHOTOCOPY OF POSTAL ACKNOWLEDGMENT OF EXHIBIT P4. EXHIBIT P7 TRUE COPY OF JUDGMENT IN WPC NO. 17384/2010 (W) DATED 10.11.2011 OF THIS HONOURABLE COURT.** 10 WP(C)15001 OF 2018 **EXHIBIT P8** **TRUE COPY OF JUDGMENT IN WPC NO.37240/2010(D) DATED 14.12.2010 OF THIS HONOURABLE COURT.** ## **3RD RESPONDENT'S ANNEXURES:** **ANNEXURE R3(a) THE COPIES OF PHOTOGRAPHS OF THIS VEHICLE BEARING REGISTRATION NO.KL 38/ 3813 ANNEXURE R3(b) THE COPIES OF PHOTOGRAPHS OF THIS VEHICLE BEARING REGISTRATION NO. KL 05 /J-7774 ANNEXURE R3 (c) THE COPIES OF PHOTOGRAPHS OF THIS VEHICLE BEARING REGISTRATION NO.KL05/Q-6628** **TRUE COPY** **P.A. TO JUDGE**