Assankutty v. Secretary, Regional Transport Authority, Malappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 26TH DAY OF JUNE 2018 / 5TH ASHADHA, 1940** **WP(C).No. 21009 of 2018 -----------------------** **PETITIONER :** **-----------** **ASSANKUTTY, S/O.BIYYUTTI, MALAMBRATH CHALIL HOUSE, OTHUKKUNGAL, KOTTAKKAL P.O. MALAPPURAM DISTRICT** **BY ADV.SRI.SAJU J.VALLYARA** **RESPONDENT:** **-----------** **THE SECRETARY, REGIONAL TRANSPORT AUTHORITY MALAPPURAM, PIN - 676 505** **R BY SR.GOVERNMENT PLEADER SRI.K.P.HARISH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-062018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 21009 of 2018** ## **APPENDIX** ## **PETITIONER'S EXHIBITS : ----------------------** **EXHIBIT P1 : PHOTOCOPY OF THE REGULAR PERMIT ISSUED BY THE RESPONDENT TO THE PETITIONER IN RESPECT OF STAGE CARRIAGE KL-10-Q-6589 EXHIBIT P2 : PHOTOCOPY OF THE REGISTRATION CERTIFICATE OF STAGE CARRIAGE KL-10-Q-6589 EXHIBIT P3 : PHOTOCOPY OF THE REGISTRATION CERTIFICATE OF STAGE CARRIAGE KL-49-G-1400 EXHIBIT P4 : PHOTOCOPY OF THE REPLACEMENT APPLICATION DATED 29.05.2018 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXHIBIT P5 : PHOTOCPY COPY OF THE COVERING LETTER DATED 29.05.2018 SUBMITTED BY THE PETITOINER BEFORE THE RESPONDENT ALONG WITH EXHIBIT P4** **RESPONDENTS' EXHIBITS : NIL ----------------------** ## **/TRUE COPY/** **P.A TO JUDGE** **AV/26/6** ## **ANIL K.NARENDRAN, J.** **-----------------------------------** W.P.(C).No.21009 of 2018 **----------------------------------** Dated this the 26[th] day of June, 2018 ## **J U D G M E N T** The petitioner, who is the registered owner of a stage carriage bearing Registration No.KL-10/Q-6589 on the route Kottakkal-Kuttippuram covered by Ext.P1 regular permit, which is valid till 08.04.2022, has approached this Court in this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondent to consider and dispose of Ext.P4 application for replacing the said vehicle, which is a 2003 model vehicle with a seating capacity of 28 in all, with vehicle bearing Registration No.KL-49/G-1400, which is a 2015 model vehicle with the very same seating capacity, covered by Ext.P3 certificate of registration, notwithstanding the fact that the registration validity of the outgoing vehicle is expired during the currency of Ext.P1 regular permit. 2. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondent. 3. Section 83 of the Motor Vehicles Act, 1988 deals with replacement of vehicle. As per Section 83, the holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other W.P.(C).No.21009 of 2018 2 vehicle of the same nature. The procedure for replacement of vehicle is contemplated under Rule 174 of the Kerala Motor Vehicle Rules, 1989, which reads thus; _“174. Permit-Replacement of vehicles (1) If the holder of a permit desires at any time to replace a vehicle covered by the permit with another vehicle, he shall forward the permit and apply in the form “P.V.A” with the fee prescribed in Rule 180 to the Transport Authority which granted the permit stating the reasons for the proposed replacement and shall:-_ _(a) If the new vehicle is not in his possession, state the material particulars in respect of which the new vehicle differs from the old; and_ _(b) If the new vehicle is in his possession forward the certificate of registration thereof._ _(2) Upon receipt of the application, the Transport Authority may in his discretion, reject the application(a) If it has previous to the date of receipt of the application given reasonable notice of its intention to reduce the number of Transport Vehicles of that class generally or in respect of the route or area to which the permit applies; or_ _(b) if the new vehicle proposed differs in material respects from the old; or_ _(c) if the new vehicle proposed is older than the one sought to be replaced; or_ _(d) if the holder of the permit has contravened the provisions thereof or has been deprived of possession of the old vehicle under the provisions of any agreement of hire purchase, hypothecation or lease._ _(3) If the new vehicle proposed does not differ in_ W.P.(C).No.21009 of 2018 3 _material respects from the old, the application for replacement of the vehicle may be allowed. If there is material difference between the two vehicles, the application shall be treated as if it were for a fresh permit.”_ 4. After considering the provisions under Section 83 of the Act and also Rule 174 of the Rules, a Division Bench of this Court in ## **Regional Transport Authority and another v. Shaju (ILR 2017** **(3) Kerala 720)** held that clause (c) of sub-rule (2) of Rule 174 of the Rules to the extent it restricts the use of an older model vehicle (stage carriage) to replace the existing vehicle is inconsistent with Section 83 of the Act and hence inoperative. As per Section 83 of the Act, the vehicle has to be replaced by another vehicle of same nature and the provision does not interdict replacement of the existing vehicles with an older model vehicle. The Division Bench held further that, if the vehicle is roadworthy, then it cannot be said that by replacing a vehicle with an older roadworthy vehicle the safety of passengers would in any manner be jeopardised. Paragraphs 9 and 10 of the said judgment read thus; _“9. We may now come to the Act. Section 83 clearly predicates replacement of the vehicle by vehicle of the “same nature”. The Legislature have used the expression purposely. They could have used various other expressions. To us, the expression is clear. Same nature would mean; a bus by a bus, a mini bus by a mini bus, an air-conditioned bus by an airconditioned bus, a truck by a truck and not a bus by a mini_ W.P.(C).No.21009 of 2018 4 _bus and an air-conditioned bus by a non air-conditioned bus or mini bus by a regular bus; that is the only restriction. When in exercise of delegated authority the subordinate authority, i.e., the State, makes the rules, the rules have to be consistent with the Act. The Rules cannot override the Act or restrict the ambit of the Act. When the expression is vehicle of same nature, then if Rule, 174(2)(c) restricts that an older vehicle cannot be brought in, it would be restricting the right conferred to a person by the provisions of the Act. Surely such an exercise by a delegatee cannot be permitted. Rules have to be consistent with the Act and not restricting or in derogation thereto. The Rules to that extent cannot thus be held to be consistent with the Act and would have to be held to be inoperative._ _10. Learned Government Pleader then submitted that this restriction has been placed for safety of the passengers. We fail to understand how safety of passengers would be jeopardised, if the vehicle is replaced by an older vehicle, subject of course to the vehicle being certified as roadworthy. If the vehicle is roadworthy, then it cannot be said that by replacing a vehicle with an older roadworthy vehicle the safety of passengers would in any manner be jeopardised. Nothing has been brought on record to even substantiate such a submission.”_ (underline supplied) 5. In **Usha Nanthini M. V. Secretary, Regional Transport Authority, Palakkad, & another** (judgment dated 15.1.2018 in W.P.(C)No.39581/2017) this Court held that, in view of the law laid down by the Division Bench in **Shaju's case (supra)** no request made by a permit holder for replacement of vehicle can be declined merely for the reason that the incoming vehicle is an older W.P.(C).No.21009 of 2018 5 model, subject, of course, to the older model vehicle being certified as roadworthy. After referring to the decision of the Apex Court in **M.C. Metha's case [(1997) 8 SCC 770]** , wherein it was held that the requirement of maintaining the motor vehicles in the manner prescribed and its use if roadworthy in a manner which does not endanger public, has to be ensured by the authorities and this is the aim of the provisions enacted in the Motor Vehicles Act; and also the provisions under Section 56 of the Motor Vehicles Act, which deals with certification of fitness of transport vehicles and Rule 62 of the Central Motor Vehicles Rules, which deals with validity of certificate of fitness, this Court in **Usha Nanthini's case** held that, a vehicle which no longer complies with all the requirements of the Motor Vehicles Act and the rules made thereunder cannot be permitted to be driven or plied on the road. Therefore, roadworthiness and viability of the incoming vehicle shall be the consideration in an application for replacement, rather than the model of the incoming vehicle. Paragraphs 12 to 18 of the said judgment read thus; _“12. In view of the law laid down by the Division Bench in_ _**Shaju's case (supra)** no request made by a permit holder for replacement of vehicle can be declined merely for the reason that the incoming vehicle is an older model, subject, of course, to the older model vehicle being certified as roadworthy. In Ext.P4 judgment dated 10.5.2016 in W.P. (C)No.17116/2016, this Court noted the contention raised by the permit holder that the existing vehicle can be replaced_ W.P.(C).No.21009 of 2018 6 _by an older model vehicle provided the same is roadworthy. 13. Section 56 of the Motor Vehicles Act deals with certification of fitness of transport vehicles. As per subsection (1) of Section 56, subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of the Act and the rules made thereunder. As per sub-section (4) of Section 56, the prescribed authority may, for reasons to be recorded in writing, cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of the Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained. Going by the proviso to sub-section (4), no such cancellation shall be made by the prescribed authority unless such authority holds such technical qualification as may be prescribed or where the prescribed authority does not hold such technical qualification on the basis of the report of an officer having such qualifications._ _14. Therefore, a transport vehicle which is registered under Section 39 of the Act can be driven or plied on road only if it possesses a valid fitness certificate. If it is not having a valid fitness certificate, it shall be deemed to be an unregistered motor vehicle. Further, the certificate of fitness issued under Section 56 of the Act in respect of a transport_ W.P.(C).No.21009 of 2018 7 _vehicle is liable to be cancelled at any time, for reasons to be recorded in writing, if the prescribed authority is satisfied that the vehicle to which it relates no longer complies with all the requirements of the Act and the rules made thereunder._ _15. Rule 62 of the Central Motor Vehicles Rules, 1989 deals with validity of registration (sic: validity of certificate of fitness). As per sub-rule (1) of Rule 62, a certificate of fitness in respect of a transport vehicle granted under Section 56 shall be in Form No.38 and such certificate when granted for a new vehicle shall be valid for two years and the renewal of such certificate shall be valid for a period of one year. The proviso to sub-rule (1) of Rule 62 mandates that the renewal of a fitness certificate shall be made only after the inspecting authority or authorised testing station as referred to in subsection (1) of section 56 of the Act has carried the tests specified in the Table given in Rule 62. The method of checking the condition/functioning of each item has been prescribed in the remarks column of the Table._ _16. Rule 62 of the Central Motor Vehicles Rules 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. Rule 62 provides for checking the functioning of all the aforesaid items except the reflectors, bulbs, rear view mirror, safety glasses and exhaust emission. It also provides for checking the make/rating, etc. of spark plug/ suppressor cap/high tension cable, bulbs and safety glass as per original equipment recommendations. As per the remarks column of the Table, beam focus of head lamp beams has to be checked as per Annexure VII. While checking other lights it has to be ensured that unauthorised lights are not fitted;_ W.P.(C).No.21009 of 2018 8 _while checking reflectors it has to be ensured that the colour of reflectors and reflective tapes are as per Rule 104; while 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. The certificate of fitness of a transport vehicle issued in Form No.38 contains a certification by the inspecting authority or the authorised testing station that the vehicle complies with the provisions of the Motor Vehicles Act and the rules made thereunder._ _17. In_ _**M.C. Metha v. Union of India [(1997) 8 SCC 770]** a Three-Judge Bench of the Apex Court held that the existing provisions in the Motor Vehicles Act alone are sufficient to clothe the members of the police force and the transport authorities with ample powers to control and regulate the traffic in an appropriate manner so that no vehicle being used in a public place poses any danger to the public in any form. The requirement of maintaining the motor vehicles in the manner prescribed and its use if roadworthy in a manner which does not endanger public, has to be ensured by the authorities and this is the aim of the provisions enacted in the Motor Vehicles Act._ _18. It cannot be disputed that, use of a transport vehicle which is not roadworthy in the manner prescribed under the Motor Vehicles Act and the rules made thereunder would endanger the life of the travelling public and also the public on the road, as there is every possibility that driving of such vehicles may lead to major road accidents. Therefore, strict compliance with the provisions of Rule 62 of the Central Motor Vehicles Rules, read with the relevant provisions under_ W.P.(C).No.21009 of 2018 9 _Chapter V of the said Rules, in so far as the same are applicable to transport vehicles, is highly essential for permitting the use of a transport vehicle on the road. A vehicle which no longer complies with all the requirements of the Motor Vehicles Act and the rules made thereunder cannot be permitted to be driven or plied on the road. Therefore, roadworthiness and viability of the incoming vehicle shall be the consideration in an application for replacement, rather ” than the model of the incoming vehicle._ (underline supplied) 6. In the instant case, the petitioner has submitted Ext.P4 application dated 29.05.2018 before the respondent for replacement of stage carriage bearing registration No.KL-10/Q-6589, which is a 2003 model vehicle (date of registration 13.05.2003), with seating capacity of 28 in all, with another stage carriage bearing registration No.KL-49/G-1400, which is a 2015 model vehicle (date of registration 07.09.2015), with seating capacity of 28 in all. 7. In such circumstances, this writ petition is disposed of by directing the respondent to consider and pass appropriate orders on Ext.P4 application for replacement made by the petitioner, strictly in accordance with law, taking note of the law laid down by this Court in **Shaju's case** and **Usha Nanthini's case** referred to supra. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of one month from the date of production of a certified copy of this judgment. W.P.(C).No.21009 of 2018 10 It is made clear that this Court has not expressed anything as to the maintainability of Ext.P4 application on account of the expiry of the validity of the outgoing vehicle and it is for the petitioner to raise all legal contentions before the respondent, at appropriate stage. **Sd/ANIL K.NARENDRAN** **JUDGE** AV/26/6