Noushad, Joby Mathai and Marakkar v. Sub Regional Transport Officer, Perumbavoor; Regional Transport Officer, Ernakulam; Transport Commissioner and State of Kerala (W.P.(C) Nos. 1175 & 1176 of 2020)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941** ## **WP(C).No.1175 OF 2020(V)** ## **PETITIONERS:** **1 NOUSHAD,AGED 47 YEARS,S/O.HASSAN MARAKKAR, CHEMMALAKKUDY THACHAYIL, PATTIMATTOM P.O., PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, (OWNER OF TWO LORRIES BEARING REGISTRATION NOS. KL-40-K-6564 AND KL-40-L-1174).** - **2 JOBY MATHAI,AGED 36 YEARS,S/O.MATHAI, OLANGETTU HOUSE, KUMARAPURAM P.O., KUNNATHUNADU VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, (OWNER IN POSSESSION OF TWO LORRIES BEARING REGISTRATION NOS. KL-40-L-6650 AND KL-40-L-8078).** - **3 MARAKKAR,AGED 47 YEARS,S/O.HAMEED, CHEMMALAKKUDY THACHAYIL, VENGOLA P.O., PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, (OWNER OF LORRY BEARING REGISTRATION NO. KL-40-P-4877).** **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENTS:** - **1 THE SUB REGIONAL TRANSPORT OFFICER PERUMBAVOOR, ERNAKULAM DISTRICT-683545.** - **2 THE REGIONAL TRANSPORT OFFICER,ERNAKULAM-682030.** - **3 THE TRANSPORT COMMISSIONER,DEPARTMENT OF MOTOR VEHICLES, STATE OF KERALA, THIRUVANANTHAPURAM-695001.** - **4 STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT, MOTOR VEHICLE DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM695001.** ## **OTHER PRESENT:** ## **SRI.JESTIN MATHEW, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2020, ALONG WITH WP(C).1176/2020(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.1175 & 1176/2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941** ## **WP(C).No.1176 OF 2020(V)** ## **PETITIONERS:** |**1**||**MOHAMMED SHARIF,**| |---|---|---| |||**AGED 60 YEARS**| |||**PONNATHAZHATH HOUSE, FOUZY MANZIL, MARUTHUR POST,**| |||**PATTAMBI, PALAKKAD DISTRICT.**| |**2**||**MOHAMMED FOUZY,**| |||**PONNATHAZHATH HOUSE, FOUZY MANZIL, MARUTHUR POST,**| |||**PATTAMBI, PALAKKAD DISTRICT.**| |||**BY ADV. SRI.P.DEEPAK**| |**RESPONDENTS**<br>**:**||| |**1**||**THE STATE OF KERALA,**| |||**REPRESENTED BY ITS CHIEF SECRETARY, MAIN BLOCK,**| |||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**||**THE TRANSPORT COMMISSIONER,**| |||**TRANS TOWERS, VAZHUTHACAUD, THYCAUD P.O., PIN-**| |||**695014.**| |**3**||**THE JOINT REGIONAL TRANSPORT OFFICER,**| |||**PATTAMBI, SUB REGIONAL TRANSPORT OFFICE, PATTAMBI,**| |||**PIN-679303.**| |**4**||**THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS,**| |||**GOVERNMENT OF INDIA, TRANSPORT BHAVAN, 1,**| |||**PARLIAMENT STREET, NEW DELHI-110001, REPRESENTED BY**| |||**ITS SECRETARY.**| ## **OTHER PRESENT:** **SRI.JESTIN MATHEW, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** W.P.(C)Nos.1175 & 1176/2020 3 **16.01.2020, ALONG WITH WP(C).1175/2020(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.1175 & 1176/2020 4 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)Nos.1175 & 1176 of 2020 ---------------------------------------------Dated this the 16[th] day of January, 2020 ## **JUDGMENT** The prayers in W.P.(C)No.1175/2020 are as follows: _“A. Issue a writ of mandamus or other appropriate writ, order or direction to the first respondent to receive the tax of vehicles of petitioners bearing registration Nos.KL-40K-6564, KL-40-J-1174, KL-40-L-6650, KL-40-L-8078 and KL-40-P-4877 without considering the fact that check reports are pending against the vehicles of petitioners._ _B. Issue a writ of mandamus or other appropriate writ, order or direction to the first respondent to receive the application for duplicate permit in connection with vehicle bearing registration No.KL-40-L-6650 owned by second petitioner and issue duplicate permit within a reasonable period which this Honourable Court may deem fit and proper in the interest of justice and circumstances of the case without considering that some check report are pending against the second petitioner._ 2. The prayers in W.P.(C)No.1176/2020 are as follows:- _“(i) Issue a writ in the nature of certiorari or such other writ, order or direction calling for the records leading to Exhibit P2 and quash the same._ _(ii) Issue a writ in the nature of mandamus or such other writ, order or direction commanding the 3[rd] respondent to receive motor vehicles tax for the QE 31/03/2020 in respect of the goods carriages bearing registration numbers KL-52-H-4852 & KL-52-H-2854 covered by Exhibit P1 & P1(a) certificates of registration in physical mode (manually) as laid down in Exhibit P3 judgment.”_ 3. Heard Sri.P.M. Ziraj, learned counsel appearing for the petitioners in W.P.(C)No.1175/2020, Sri. P. Deepak, learned counsel W.P.(C)Nos.1175 & 1176/2020 5 appearing for the petitioners in W.P.(C)No.1176/2020 and Sri. Jestin Mathew, learned Government Pleader appearing for the official respondents in these cases. 4. The matter in issue raised in these petitions are covered in favour of the petitioners as per the dictum laid down by this Court in decisions as in _**Kerala Bus Transport Association**_ v. _**Transport Commisisoner**_ [2013 (1) KLT 440] and as in many of the judgments as in Ext.P3 judgment dated 18.12.2019 in W.P.(C)No.32285/2019 (Ext.P3 in W.P. (C)No.1176/2020) and this Court, in the decision as in _**Kerala Bus Transport Association**_ v. _**Transport Commisisoner**_ [2013 (1) KLT 440] held as follows in paragraph 11 thereof: _“11. I have no hesitation to hold that clauses 20 and 30 of Ext.P1 circular enabling the refusal of renewal of permit or declining the certificate of fitness because of the mere pendency of a 'check report' is wholly inequitable. The owner/permit holder cannot be kept on tenterhooks awaiting the culmination of the proceedings pursuant to a 'check report' for him to continue the service being operated. Clauses 20 and 30 of Ext.P1 circular would pressurise the owner/permit holder to part with Rs.10,000/- on receipt of a charge memo even in the absence of a prior decision of the Transport Authority as regards breach. The likelihood of a 'check report' being misused by a Checking officer to extract money from the vehicles whose permit is on the verge of renewal cannot at all be overlooked. Clauses 20 and 30 of Ext.P1 circular are arbitrary and falls foul of Art.14 of the Constitution of India besides offending the right guaranteed to the operators to carry on the business under Art.19(1)(g) of the Constitution of India. I quash clauses 20 and 30 of Ext.P1 circular and the other clauses thereof would operate with full efficacy as there is no challenge to the same in this writ petition.”_ So it is now well settled that in the absence of a statutory enabling provision, when a check report is issued against a person, he cannot be W.P.(C)Nos.1175 & 1176/2020 6 denied statutory rights to prove that his vehicle is a roadworthy. Any technical parameters that are entered into the website of the 'Parivahan Sewa' to prevent the owner of a vehicle to transact in accordance with statutory provisions cannot stand in the way of the petitioner in remitting tax or seeking renewal of fitness certificate. 5. Accordingly, it is ordered that the impugned order as per Ext.P2 in W.P.(C)No.1176/2020 will stand quashed and set aside. Further it is ordered that R1 in W.P.(C) No.1175/2020 will receive tax of the petitioners’ vehicles as mentioned in the prayer portion of that W.P.(C)., without considering the fact that the check reports are pending against the vehicles of the petitioners. Further it is also ordered that R1 in W.P.(C)No.1175/2020 will receive the application for duplicate permit filed by the petitioners herein in connection with vehicle bearing No.KL-40-L/6650 and consider the issue of duplicate permit within a reasonable period, without taking into account the check reports that may be pending as against the petitioners' vehicles and if the request is otherwise in order, grant the said request without much delay preferably within a period of two weeks from the date of production of a certified copy of this order. It is also ordered that R3 in W.P.(C)No.1176/2020 will receive the motor vehicle tax for the quarter ending, 31.3.2020 in respect of the goods carriages bearing the registration numbers of which are W.P.(C)Nos.1175 & 1176/2020 7 mentioned in prayer No.2 of W.P.(C)No.1176/2020 covered by the certificate of registration produced therein in physical mode (manually), as ordered in the judgment produced as Ext.P3 in W.P.(C)No.1176/2020. With these observations and directions, the above Writ Petition (civil) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)Nos.1175 & 1176/2020 8 ## **APPENDIX OF WP(C) 1175/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF LORRY BEARING REGISTRATION NO.KL-40-K6564. EXHIBIT P2 TRUE COPY OF THE REGISTRATION CERTIFICATE OF LORRY BEARING REGISTRATION NO.KL-40-J1174. EXHIBIT P3 TRUE COPY OF THE REGISTRATION CERTIFICATE OF LORRY BEARING REGISTRATION NO.KL-40-L6650. EXHIBIT P4 TRUE COPY OF THE REGISTRATION CERTIFICATE OF LORRY BEARING REGISTRATION NO.KL-40-L8078. EXHIBIT P5 TRUE COPY OF THE REGISTRATION CERTIFICATE OF LORRY BEARING REGISTRATION NO.KL-40-P4877.** W.P.(C)Nos.1175 & 1176/2020 9 ## **APPENDIX OF WP(C) 1176/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF KL-52-H-4852.** **EXHIBIT P1(A) A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF KL-52-H-2854.** **EXHIBIT P2 A TRUE COPY OF THE LETTER DATED 14.01.2020 OF THE 3RD RESPONDENT ADDRESSED TO THE 2ND PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 18.12.2019 IN WPC NUMBER 32285 OF 2019.**