Mohammed Rafi v. Secretary, Regional Transport Authority, Malappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940** ## **WP(C).No. 2096 of 2019** ## **PETITIONER:** **MOHAMMED RAFI AGED 54 YEARS** **KADIYARAKATH KAKKATHARYIL HOUSE, VELIYANCODE, PONNANI, MALAPPURAM.** **BY ADV. SRI.I.DINESH MENON** ## **RESPONDENT:** **1 THE SECRETARY REGIONAL TRANSPORT AUTHORITY, MALAPPURAM-676505.** **ADDL.R2 & R3 IMPLEADED** **ADDL. R2 THE REGIONAL TRANSPORT AUTHORITY, MALAPPURAM-676 505. ADDL.R3 THE TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, KERALA, 2ND FLOOR, TRANS TOWERS, VAZHUTHACAUD, THYCAUD P.O, THIRUVANANTHAPURAM – 14.** **ADDL.RESPONDENTS 2 & 3 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 07.02.2019 IN WPC** **BY SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2096 of 2019** **2** ## // **CR** // ## **JUDGMENT** The petitioner is the holder of a regular permit on the route Puduponnani-Edappal in respect of stage carriage bearing registration No.KL-18/855, with seating capacity 28 in all, with date of registration as 13.01.2003, which has attained the age of 15 years on 12.01.2018. On 07.01.2019, the petitioner made Ext.P3 application for replacement of the said vehicle with another stage carriage bearing registration No.KL54/6364, with seating capacity 28 in all, with date of registration as 04.10.2007. The petitioner has moved this Court in this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Secretary of the Regional Transport Authority, Malappuram to consider Ext.P3 application for replacement of stage carriage bearing registration No.KL-18/855 with stage carriage bearing **WP(C).No.2096 of 2019** **3** registration No.54/6364, so as to operate on the route Puduponnani-Edappal, on the strength of Ext.P1 permit, in the light of the decision reported in **Aysha v. R.T.A., Kasaragod [2006 (3) KLT 1013]** . The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to make necessary endorsement on Ext.P1 permit relating to replacement of the said vehicles; and a writ of mandamus commanding the 1[st] respondent to consider Ext.P6 application for temporary permit on the above route, in respect of stage carriage bearing registration No.KL-54/6364, in place of stage carriage bearing registration No.KL-18/855, and grant the same, if there is no other legal impediment. 2. On 24.01.2019, when this writ petition came up for admission, the learned Senior Government Pleader was directed to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 4. The learned Senior Government Pleader, on **WP(C).No.2096 of 2019** **4** instructions, would submit that the 1[st] respondent shall place Ext.P3 application made by the petitioner for replacement, before the 2[nd] respondent Regional Transport Authority, after conducting an inspection of the incoming vehicle. Thereafter, the 2[nd] respondent shall consider that application with notice to the petitioner and pass appropriate orders thereon, within a time limit to be fixed by this Court. The learned Government Pleader would also submit that the 1[st] respondent shall consider and pass orders on Ext.P6 application for temporary permit, within a time limit to be fixed by this Court. 5. In **Usha Nanthini M. V. Secretary, Regional Transport Authority, Palakkad & another** [ **2018 (2) KHC 89]** this Court held that, in view of the law laid down by the Division Bench in **Regional Transport Authority and another** v. **Shaju [ILR 2017 (3) Kerala 720]** , 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 **WP(C).No.2096 of 2019 5** certified as roadworthy. This Court, after referring to the decision of the Apex Court in **M.C. Metha v Union of** **India [(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) 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. 6. In **Jijith v. State of Kerala and others [2019 (1) KHC 463]** , this Court held that a transport **WP(C).No.2096 of 2019 6** vehicle fitted with unauthorised lights cannot be treated as a vehicle which complies with the provisions of the Motor Vehicles Act, 1988 and the Rules made thereunder, for the purpose of grant of certificate of fitness. The paintwork of every transport vehicle shall be maintained in a clean and sound condition, as contemplated by Rule 264 of the Kerala Motor Vehicles Rules, 1989. 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 Kerala Motor Vehicles 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 Motor Vehicles Act; the 'emergency information panel' as per Rule 134 of the Central Motor Vehicles Rules for goods **WP(C).No.2096 of 2019** **7** 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; the name of the institution exhibited in educational institution bus and private service vehicle as per Rule 291 of the Kerala Motor Vehicles Rules; etc. In the case of a stage carriage in respect of which uniform colour scheme has been implemented under Rule 264 of the Kerala Motor Vehicles 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. In the said decision, this Court held further that exhibition of writings or figures with the sole object to invite public attention and to promote the contract carriage or stage carriage service should not be permitted by levying fee under Rule 191 of the Kerala Motor Vehicles Rules. 7. In **Jijith's case supra** this Court held further **WP(C).No.2096 of 2019 8** that, in view of the provisions under Rule 100 of the Central Motor Vehicles Rules, 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. In view of the provisions under Rule 50 of the Central Motor Vehicles Rules, the registration mark on the right and left side of every transport vehicle has to be painted on the body and it has to be displayed as per Rule 50 read with Rule 51, at the specified place, in the manner specified in those rules. 8. In **Kerala Bus Transport Association v. Government of Kerala (2018 (4) KLT 947)** , this Court held that the provisions under the Kerala Motor Vehicles (2[nd] Amendment) Rules, 2016, are intended to ensure safe and convenient public transport facility to the passengers by reducing the chances of untoward incidents and as such, the said provisions are in the **WP(C).No.2096 of 2019 9** interest of the public at large. By the said judgment, this Court has directed that, the Police and the Transport authorities shall take necessary steps to ensure that all stage carriages, including stage carriages operating as town and city services are fitted with door shutters as mandated by sub-rule (2) of Rule 280 of the Kerala Motor Vehicles Rules and that, appropriate proceedings shall be initiated against the owners/permit holders and also the employees of the stage carriages plying with door shutters either removed or tied to bus body and that, proceedings shall also be initiated against the employees for opening or closing door shutters while the stage carriage is in motion. 9. In view of the law laid down by this Court in the decisions referred to supra, conclusion is irresistible that on an application for replacement, the competent authority has to consider the road worthiness and viability of the incoming vehicle and shall ensure that, the incoming vehicle complies with the provisions of the Motor Vehicles Act and the Rules made thereunder, i.e., **WP(C).No.2096 of 2019** **10** the vehicle is not fitted with any unauthorised lights; that it is painted in the uniform colour scheme, if any, specified under Rule 264 of the Kerala Motor Vehicles Rules; that the safety glasses of the wind screen, rear window and side windows are maintained as per the mandate of Rule 100 of the Central Motor Vehicles Rules, without tampering the percentage of visual transmission of light, as specified in the said Rules; that the registration mark is displayed as per Rule 50 of the Central Motor vehicles Rules, read with Rule 51, at the specified places, in the manner specified in those Rules; that it is fitted with door shutters as mandated by subrule (2) of Rule 280 of the Kerala Motor Vehicles Rules; etc. 10. The additional 3[rd] respondent Transport Commissioner shall ensure strict compliance of the aforesaid provisions, by the officers in the Motor Vehicles Department, while considering an application made by a stage carriage operator for replacement of the vehicle attached to stage carriage permit. After conducting an **WP(C).No.2096 of 2019** **11** inspection of the incoming vehicle, the officer concerned shall prepare a report as to the road worthiness of that vehicle and that the said vehicle complies with the provisions of the Motor Vehicles Act and the Rules made thereunder for being plied as a transport vehicle. The report of the officer concerned shall be referred to in the proceedings issued on the application for replacement. 11. In such circumstances, this writ petition is disposed of by directing the 1[st] respondent to place Ext.P3 application made by the petitioner for replacement of the vehicle covered by Ext.P1 permit, before the additional 2[nd] respondent Regional Transport Authority, after obtaining a report as to the road worthiness and the statutory compliance of the incoming vehicle with the provisions of the Motor Vehicles Act and the Rules made thereunder. Thereafter the said Authority shall consider and pass appropriate orders on Ext.P1 application, taking note of the law laid down in the decisions referred to supra and that laid down in this judgment. A decision in this regard shall be taken, as expeditiously as possible, **WP(C).No.2096 of 2019** **12** at any rate, within a period of six weeks, with notice to the petitioner and after affording him an opportunity of being heard. The 1[st] respondent is also directed to consider Ext.P6 application made by the petitioner for temporary permit, on the route Puduponnani-Edappal, in respect of stage carriage bearing registration No.KL-54/6364, strictly in accordance with law, with notice to the petitioner and after affording him an opportunity of being heard, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of this judgment. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/12/2 **WP(C).No.2096 of 2019** **13** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE COPY OF THE REGULAR PERMIT DATED 14/02/2014. EXHIBIT P2 TRUE COPY OF THE RC BOOK OF KL-18 855. EXHIBIT P3 TRUE COPY OF THE APPLICATION REPLACEMENT DATED 07/1/2019. WITH CHALAN DATED 07/01/2019. EXHIBIT P4 TRUE COPY OF THE RC BOOK OF KL-54 6364. EXHIBIT P5 TRUE COPY OF THE DECISION IN 2006(3) KLT 1013. EXHIBIT P6 TRUE COPY OF THE TEMPORARY PERMIT APPLICATION 14/1/2019 WITH CHALAN. EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WP(C)NO.22848/18 DT.20/07/2018. RESPONDENTS' EXTS: NIL**