Sasikumar C v. Secretary, Regional Transport Authority, Thrissur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **WP(C).No.20634 of 2019** ## **PETITIONER:** **SASIKUMR.C AGED 50 YEARS S/O. LATE UNNIKRISHNA MENON, CHELATTU HOUSE, AYYANTHOLE, THRISSUR.** **BY ADV. SRI.I.DINESH MENON** ## **RESPONDENT:** **THE SECRETARY REGIONAL TRANSPORT AUTHORITY, THRISSUR-680003** **BY ADV.** ## **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20634 of 2019 2** ## **JUDGMENT** The petitioner is the holder of Ext.P1 regular permit on the route Ayyanthole-Thrissur-Thriprayar, which is valid till 02.09.2020, in respect of stage carriage bearing registration No.KL-08 Z 5758, a 2004 model vehicle which attained 15 years age on 04.02.2019. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking writ of mandamus commanding the respondent Secretary, of the Regional Transport Authority, Thrissur to consider Ext.P-5 application for replacement and to substitute stage carriage bearing registration No.KL-08/Z-5758 with stage carriage bearing registration No.KL-08/AM-1008, a 2007 model vehicle taken by the petitioner on lease, so as to operate on the route Ayyanthole-Thrissur-Thriprayar, on the strength of Ext.P1 permit, which is valid till 02.09.2020, within a time frame to be fixed by this Court, after giving an opportunity of being heard to the petitioner and other affected operators. 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 **WP(C).No.20634 of 2019 3** 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 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. ## **WP(C).No.20634 of 2019 4** (3) If the new vehicle proposed does not differ in 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. 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 _**Shaju's case (supra)**_ no request made by a ## **WP(C).No.20634 of 2019 5** 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. 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, 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, road worthiness and viability of the incoming vehicle shall be the consideration in an application for replacement, rather than the model of the incoming vehicle. **WP(C).No.20634 of 2019 6** 6. In **Mohammed Rafi v. Secretary, Regional Transport Authority and others [2019 (2) KHC 673]** , this Court held that, while considering an application for replacement of a vehicle with another stage carriage, authority shall ensure that the vehicle is not fitted with unauthorised lights and the vehicle complies with all the statutory requirements with regard to colour scheme, safety glasses of wind screen, side glasses, display of registration mark and fitting of door shutters, etc. Paragraphs 5 to 10 of the said decision reads thus; “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 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 ## **WP(C).No.20634 of 2019 7** 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 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 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 ## **WP(C).No.20634 of 2019 8** 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 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 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 ## **WP(C).No.20634 of 2019 9** 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., 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 sub-rule (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 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 ## **WP(C).No.20634 of 2019 10** 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.” 7. The learned counsel for the petitioner would submit that Ext.P5 application made by the petitioner for replacement of the vehicle covered by Ext.P1 stage carriage permit is pending consideration before the respondent and the same may be directed to be considered, within a time limit to be specified by this Court. 8. The learned Senior Government Pleader, would submit that Ext.P5 application for replacement is one dated 16.07.2019, whereby the petitioner has made a request to replace stage carriage bearing registration No.KL-08/Z-5758 covered by Ext.P1 regular permit with another stage carriage bearing registration No.KL-08/Z-5758. The stage carriage attached to Ext.P1 regular permit attained the age of 15 years on 04.02.2019, much prior to Ext.P5 application. Check reports are pending against stage carriage bearing registration No.KL-08/Z-5758. Ext.P5 application made by the petitioner shall be placed in the next meeting of the Regional Transport Authority and an appropriate decision shall be taken, in accordance with law. ## **WP(C).No.20634 of 2019 11** 9. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the respondent to place Ext.P5 application before the Regional Transport Authority, after obtaining a report of the concerned officer as to the road worthiness of the incoming vehicles in terms of the direction contained in paragraph 10 of the judgment of this Court in **Mohammed Rafi's case (supra).** The petitioner shall produce the said vehicle before the Regional Transport Officer, Trissur, within two weeks from the date of receipt of a certified copy of this judgment. Thereafter, the said Authority shall consider Ext.P5 application for replacement and pass appropriate orders, strictly in accordance with law, taking note of the statutory provisions and the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within six weeks from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN JUDGE** LEK **WP(C).No.20634 of 2019 12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGULAR PERMIT OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE TEMPORARY PERMIT DATED 10.07.2019. EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 22.06.2019. EXHIBIT P4 TRUE COPY OF THE LEASE AGREEMENT DATED 16.07.2019. EXHIBIT P5 TRUE COPY OF THE APPLICATION FOR REPLACEMENT DATED 16.07.2019 WITH CHALAN. EXHIBIT P6 TRUE COPY OF THE DICTUM IN 2010(1) KLT 758. EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 37276/1028 DATED 16.11.2018.** ## **RESPONDENT'S/S EXHIBITS: NIL**