Shameer.T.M. v. The Registering Authority (Regional Transport Officer), Kozhikode

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941** ## **WP(C).No.14347 of 2019** ## **PETITIONER:** **SHAMEER.T.M., AGED 35 YEARS, S/O.MUHAMMED, KARATT HOUSE, CHELAVOOR P.O., KUNNAMANGALAM, PIN-673 571, KOZHIKODE DISTRICT.** **BY ADV. SRI.SAJU J.VALLYARA** ## **RESPONDENT:** **THE REGISTERING AUTHORITY (REGIONAL TRANSPORT OFFICER), KOZHIKODE, PIN-673 020.** **BY GOVERNMENT PLEADER, SRI. MANURAJ K.J.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.14347 of 2019** **-:2:-** ## **JUDGMENT** The petitioner, who is a stage carriage operator, has purchased a Contract Carriage Vehicle (Educational Institution Bus) bearing Registration No.KL-42/E-4686 on 24.04.2019, from its registered owner namely the Manager, Viveka Chandrika Sabha Higher Secondary School, Puthenvelikkara. Ext.P1 is the certificate of registration of that vehicle, which is a 2011 model vehicle with the date of registration 23.06.2011 with a seating capacity of 41. The document marked as Ext.P2 is the clearance certificate issued by the Sub Regional Transport Officer, North Paravoor, regarding transfer of ownership of that vehicle in favour of the petitioner. Thereafter, the petitioner submitted Ext.P3 notice and Ext.P4 report for endorsing the transfer of ownership in Ext.P1 certificate of registration. 2. According to the petitioner, the petitioner intends to use the said vehicle as stage carriage. Therefore, along with Exts.P3 and P4 applications, the petitioner submitted a request before the respondent seeking permission to alter the class of vehicle as stage carriage, by submitting Ext.P5 application. Now **WP(C).No.14347 of 2019** **-:3:-** the petitioner is before this Court in this writ petition seeking a writ of mandamus commanding the respondent to consider Exhibit P-5 request for alteration of class of vehicle as 'stage carriage' from 'Educational Institution Bus, in respect of vehicle KL-42/E-4686 covered by Ext.P1 certificate of registration, without insisting for the compliance of Bus Body Code. 3. A statement has been filed on behalf of the respondent, opposing the reliefs sought for in this writ petition. Paragraphs 4 and 5 of the said statement read thus: “4. An Educational Institution Bus in made or its body is fabricated as per AIS 063. The petitioner's request is for altering the vehicle as stage carriage. The standards of a Stage Carriage prevailing now is specified in AIS 052 which is entirely different from AIS 063 so naturally for altering a vehicle from the class of Educational Institution bus to the category of Stage carriages various changes are to be effected up on vehicle. So direction given to the applicant when such changes are effected in the vehicle, it shall comply the provisions of AIS 052. These standards were prescribed for the safety of passengers and other road users which a modern society cannot discard. 5. By a mere colour change an Educational Institution vehicle cannot be altered as Stage Carriage. The parameters for an Educational Institution Bus is prescribed in AIS 063 while that of a Stage Carriage is prescribed in AIS 052.” **WP(C).No.14347 of 2019** **-:4:-** ## 4. The petitioner has also filed a reply affidavit. 5. The issue raised in this writ petition is as to the applicability of Bus Body Code prescribed under Rule 125C of the Central Motor Vehicle Rules, 1989 (for brevity 'CMV Rules'), while seeking alteration of class of vehicle. The fact that the vehicle in question was originally registered as 'Educational Institution Bus' prior to the introduction of Rule 125C of the CMV Rules is not in dispute. 6. It is submitted by the learned counsel for the petitioner that W.A.No.1678 of 2018 and connected cases, filed by the State challenging the judgment of this Court dated 24.05.2018 in W.P. (C).No.1015 of 2018 and connected cases, ended in dismissal by the judgment of the Division Bench of this Court dated 27.09.2018. Paragraphs 4 to 6 of the said judgment read thus: "4. It is the case of the appellants that, in as much as the writ petitioners had presented transport vehicles, that were earlier registered as educational institution buses/private service vehicles, for alteration of the class of vehicles to stage carriage/contract carriage, the writ petitioners were obliged to ensure that the vehicles presented for alteration of class of vehicles also complied with the new specifications for the bus body in terms of Rule 125C of the Central Rules. 5. We have considered the submissions of the learned Government Pleader for the appellants but, we are afraid, **WP(C).No.14347 of 2019** **-:5:-** we cannot read Rule 125C in the manner suggested by the appellants. A mere perusal of the Rules would indicate that while Rule 125C (1) mandated that only new models of buses with seating capacity of 13 or more passengers excluding driver had to have the body built in accordance with new specifications (AIS:052 (Rev-1) 2008) at the time of presentation for testing and approval for body building, the proviso to the said Rule made the requirement applicable to existing models of such buses as well, on and after 1.4.2015. In either event, the rule applied only when a new model of vehicle was presented with the chasis and a body fitted thereon or when an existing model vehicle chassis was presented with a new body fitted thereon. In the instant Appeals, it is the admitted case that the vehicles, in respect of which the applications for alteration of class were preferred, were all vehicles with unaltered chassis and body. In other words, it was not a case where any of the vehicles had been presented with a request for approval for a new body that was built on a chassis of an existing model of the vehicle. In our view, in such cases, where there is no replacement of the body of the vehicle with a new body, the provisions of Rule 125C (1), together with the proviso thereof would have no application. It needs to be noted further, for the sake of completion, that the amendment that was brought about through the notification dated 20.9.2016 only had the effect of removing the erstwhile proviso and substituting it with a new proviso. The new proviso only clarifies that the implementation of the revised standards, in cases of new models of bus with seating capacity of 13 or more passengers excluding driver, will be done in two **WP(C).No.14347 of 2019** **-:6:-** phases. In other words, the amendment has the effect of doing away with the necessity of compliance with the revised standards, so far as existing models of buses with seating capacity of 13 or more passengers excluding driver are concerned. As already noted above, we are of the view that, in the case of the writ petitioners, the proviso to the unamended Rule had no application. The amendment to the Rule, therefore, did not impact them in any way. 6. We are therefore in complete agreement with the findings of the learned single Judge on the issue of necessity for the vehicles in question, to comply with the requirement of the revised standards under Rule 125C of the Central Rules as a pre-condition for the consideration of the applications for alteration of class of vehicle. The Writ Appeals consequently fail and are accordingly dismissed.” (underline supplied) 7. A reading of the judgment in W.A.No.1678 of 2018 and connected cases would make it clear that the provisions under Rule 125C of the CMV Rules have application only to new models of buses with seating capacity of 13 or more passengers excluding driver. In respect of those vehicles, the body has to be built in accordance with new specifications (AIS:052 (Rev-1) 2008) at the time of presentation for testing and approval for body building. The proviso to the said Rule, made the requirement applicable to existing models of such buses as well, on and after 01.04.2015. In either event, the rule applies only when a new model of vehicle **WP(C).No.14347 of 2019** **-:7:-** was presented with the chassis and a body fitted thereon or when an existing model vehicle chassis was presented with a new body fitted thereon. 8. In the judgment in W.A.No.1678 of 2018 and connected cases, the Division Bench noticed that in the appeals it is the admitted case that the vehicles, in respect of which the applications for alteration of class were preferred, were all vehicles with unaltered chassis and body. In other words, it was not a case where any of the vehicles had been presented with a request for approval for a new body that was built on a chassis of an existing model of the vehicle. Therefore, the Division Bench held that in such cases, where there is no replacement of the body of the vehicle with a new body, the provisions of sub-rule (1) of Rule 125C of CMV Rules, together with the proviso thereof would have no application. ## 9. In **Regional Transport Officer and others v. K. Jayachandra and others [(2019) 3 SCC 722: 2019 (1)** **SCALE 317]** the question came up for consideration before the Apex Court was as to the permissible alteration in a motor vehicle in view of the provisions contained in Section 52 of the Motor Vehicles Act, Rule 126 of the Central Motor Vehicles Rules and the **WP(C).No.14347 of 2019** **-:8:-** effect of Rules 96, 103 and 261 of the Kerala Motor Vehicle Rules. The validity of Circular No.7/2006 issued by the Transport Commissioner, Kerala to all the Registering Authorities stating that the body of the vehicle constructed in violation of the prototype test certificate and which was not built in strict compliance of the specifications given by the manufacturer are to be denied registration, was also under challenge. After referring to the provisions under Section 32 of the Motor Vehicles Act, 1939 and the provisions under Section 52 of the Motor Vehicles Act, 1988 as originally enacted and later amended by the Motor Vehicles (Amendment) Act, 2000, the Apex Court held that, Section 52 has been amended with the purpose to prohibit alteration of vehicles in any manner including to prohibit alteration of vehicles in any manner including change of tyres of higher capacity, keeping in view road safety and protection of environment. ## 10. In **K. Jayachandra's case (supra)** , the Apex Court held that, the very object of the amendment of sub-section (1) of Section 52 of the Motor Vehicles Act, 1988 by the Motor Vehicles (Amendment) Act, 2000 is to prohibit alteration of a vehicle as provided including the change of tyres of higher capacity. The **WP(C).No.14347 of 2019** **-:9:-** amended sub-section (1) of Section 52 has specified the extent to which vehicle cannot be altered. A reading of the provisions makes it clear that no vehicle can be altered in a manner where particulars in the certificate of registration are at variance with ' ' those originally specified by the manufacturer . The first proviso to sub-section (1) of Section 52 permits modification of the engine, or any part thereof, of a vehicle for facilitating its operation by a different type of fuel or source of energy including battery, etc., such modification is permissible to be carried out subject to such conditions as may be prescribed. The second proviso to sub-section (1) of Section 52 empowers the Central Government to prescribe specifications, conditions for approval, retro-fitment and other related matters for such conversion kits. The Central Government has power to grant an exemption for alteration of vehicles for any specific purpose. Sub-section (2) of Section 52 authorises a State Government to issue a notification and permit any person owning not less than 10 transport vehicles to alter any vehicle owned by him so as to replace the 'engine' with an engine of the same make and type, without the approval of the Registering Authority. Sub-section (3) of Section 52 provides that where the alteration has been made without the **WP(C).No.14347 of 2019** **-:10:-** approval of the Registering Authority, obviously the one which is permissible in the motor vehicle, the owner of the vehicle has to report the same within 14 days to make an entry in the - particulars of the registration. The provisions of sub sections (2) to (5) have to be read harmoniously. The Explanation to Section 52 says that 'alteration' means a change in the structure of a vehicle which results in a change in its basic feature. The alterations which do not change the basic features are outside the purview of alteration. The object and the clear intent of the amended Section 52 is that the vehicle cannot be so altered that the particulars contained in the certificate of registration are at variance with those 'originally specified by the manufacturer'. 11. In **K. Jayachandra's case (supra)** , after referring to the provisions under clause (a) of sub-rule (1) of Rule 47 of the Central Motor Vehicles Rules, which deals with sale certificate to be issued in Form 21 and Rule 48 of the said Rules, which deals with certificate of registration, the Apex Court held further that, the vehicle has to comply with the provisions of the Rules contained in Chapter V of the Central Motor Vehicles Rules as - provided in sub rule (1) of Rule 92, which has to be read as subservient to the provisions contained in Section 52 of the **WP(C).No.14347 of 2019** ## **-:11:-** Motor Vehicles Act and what is prohibited therein, to allow the same is not the intendment of the Rules contained in the Chapter. Various provisions in Chapter V are additional safeguards to what is prohibited in sub-section (1) of Section 52 of the Act, that is to say, what has been specified originally by the manufacturers and once that has been entered in the particulars in the certificate of registration, cannot be varied. No vehicle can be altered so as to change original specification made by manufacturer. Such particulars cannot be altered which have been specified by the manufacturer for the purpose of entry in the certificate of registration. It is provided in Rule 126 of the Central Motor Vehicles Rules that prototype of every type of vehicle is subject to test. The provisions of Rule 126 intend for fitness of vehicle to be plied on the road by the agencies which are specified therein. Approval and certification of motor vehicles for compliance to these Rules shall be in accordance with the AIS: 017-2000. Rule 93 deals with overall dimensions of the motor vehicles such as width, length, height, overhang, etc. No doubt about it that the vehicle has to be in conformity with the Rules also, but Rules cannot be so interpreted so as to permit - the alteration as prohibited under sub section (1) of Section 52 **WP(C).No.14347 of 2019** **-:12:-** of the Act. The alteration under the Rules is permissible except as prohibited by Section 52. The specification of the Rules would hold good with respect to the matters as not specifically covered under sub-section (1) of Section 52 and not specified therein by - manufacturer. The emphasis of sub section (1) of Section 52 is ' ' not to vary the original specifications by the manufacturer . Remaining particulars in a certificate of registration can be modified and changed and can be noted in the certificate of registration as provided in sub-sections (2) to (5) of Section 52 of the Act and the Rules. Under sub-section (5) of Section 52 of the Act, in case a person is holding a vehicle on a hire purchase agreement, he shall not make any alteration except with the written consent of the original owner. Accordingly, the Apex Court set aside the judgment of the Division Bench of this Court holding that, the Rules are subservient to the provisions of the Act and the particulars in certificate of registration can also be changed except to the extent of the entries made in the same as per the specifications originally made by the manufacturer. Circular No.7/2006 is also to be read in that spirit and the authorities have to act accordingly. 12. In **Avishek Goenka v. Union of India [(2012) 5** **WP(C).No.14347 of 2019** **-:13:-** **SCC 321]** , after referring to the provisions under Rules 100, 104, 104A, 106, 119 and 120 of the Central Motor Vehicles Rules, the Apex Court held that the Rules deal with every minute detail of construction and maintenance of a vehicle. In other words, the standards, sizes and specifications which the manufacturer of a vehicle is required to adhere to while manufacturing the vehicle are exhaustively dealt with under the Rules. What is permitted has been specifically provided for and what has not been specifically stated would obviously be deemed to have been excluded from these Rules. It would neither be permissible nor possible for the court to read into these statutory provisions, what is not specifically provided for. The provisions of the Central Motor Vehicles Rules demonstrate the extent of minuteness in the Rules and the efforts of the framers to ensure, not only the appropriate manner of construction and maintenance of vehicle, but also the safety of other users of the road. The Apex Court held further that, the legislative intent attaching due significance to the 'public safety' is evident from the object and reasons of the MV Act, 1988, the provisions of the said Act and more particularly, the rules framed thereunder. **WP(C).No.14347 of 2019** ## **-:14:-** 13. In **K. Jayachandra's case (supra)** , after referring to the law laid down in **Avishek Goenka's case (supra)** , the Apex Court held that the court should give an interpretation of the Central Motor Vehicles Rules which would serve the legislative intent and the object of framing such Rules, in preference to the one which would defeat the very purpose of enacting the Rules as well as undermining the public safety and interest. The Rules deal in minute details with the construction and maintenance of the vehicle. The Rules also deal with the safety of other users on the road. If some individual interest is likely to suffer, such individual interest must give way to the larger public interest. 14. In view of the law laid down by the Apex Court in **K. Jayachandra's case (supra)** no alteration is permissible in a motor vehicle at variance with the specifications of the manufacturer, as contained in the Prototype Test Certification. The very object of the amendment of sub-section (1) of Section 52 of the Motor Vehicles Act, 1988 by the Motor Vehicles (Amendment) Act, 2000 is to prohibit alteration of a vehicle as provided including the change of tyres of higher capacity. The amended sub-section (1) of Section 52 has specified the extent **WP(C).No.14347 of 2019** **-:15:-** to which vehicle cannot be altered. The emphasis of sub-section (1) of Section 52 is not to vary the 'original specifications by the ' manufacturer . Remaining particulars in a certificate of registration can be modified and changed and can be noted in the certificate of registration as provided in sub-sections (2) to (5) of Section 52 of the Act and the Rules. The object and the clear intent of the amended Section 52 is that the vehicle cannot be so altered that the particulars contained in the certificate of registration are at variance with those 'originally specified by the manufacturer'. The first proviso to sub-section (1) of Section 52 permits modification of the engine, or any part thereof, of a vehicle for facilitating its operation by a different type of fuel or source of energy including battery, etc., such modification is permissible to be carried out subject to such conditions as may be prescribed. 15. The Ministry of Road Transport and Highways, has issued communication No.RT-11036/06/2019-MVL dated 28.02.2019, addressed to the Principal Secretaries/Secretaries, Department of Transport of all States and Union Territory Administrations and also to the Transport Commissioners of all the States/Union Territory Administrations on the subject **WP(C).No.14347 of 2019** ## **-:16:-** 'alterations in motor vehicles', wherein it has been stated that, in view of the judgment of the Apex Court in **K. Jayachandra's case (supra)** , the particulars in the Certificate of Registration cannot be changed except to the extent of entries made in the same as per the specifications originally made by the manufacturer. A motor vehicle, modified by incorporating optional components offered by its manufacturer or otherwise modified so that it continues to comply with the manufacturer's specifications, may not require further certification. In the said communication, the Ministry has prescribed that the modifications that can be carried out by the vehicle owner and would not entail further certifications are: (a) Replacement of parts or components by the identical parts or components. (b) Replacement parts or components with parts or components with equivalent functional performance. (c) Optional parts or components as prescribed by the vehicle's manufacturer. (d) Following alterations are permissible in the motor vehicles, subject to the conditions mentioned below: |Sr.<br>No.|Changes of parameter|Subject to compliance of<br>the following| |---|---|---| |1|Seats<br>A. Lateral/Side facing seat<br>fitment or alteration in 4|1. Vehicle Weight after the<br>alteration/changes not to<br>exceed the permissible<br>Gross Vehicle Weight.| **WP(C).No.14347 of 2019** ## **-:17:-** ||Wheelers<br>B. Deletion of seats*|2. Seating capacity to<br>remain within the same<br>motor vehicle category.<br>3. Seating dimensions as<br>per<br>prescribed<br>specifications.<br>4. Seats fitted should not<br>obstruct<br>other<br>occupant(s).<br>5. Folding seats, if fitted,<br>should have auto lock in<br>both<br>used<br>/unused<br>position.<br>6. Such seats shall be<br>fitted in rows other than<br>1strow of the driver.<br>7. Such fitments shall not<br>obstruct<br>ingress<br>and<br>egress.| |---|---|---| |2|Soft Top to Hard Top or vice<br>versa in L-5 and M-1<br>vehicles<br>(L-5 means three-wheeled<br>motor vehicle, and M-1<br>means a motor vehicle for<br>carriage of passengers,<br>comprising not more than<br>eight seats in addition to<br>driver's seat.)|| |3|Side door or bars in<br>passenger area of L5M on<br>right hand side of driver.<br>[(L5-M<br>three<br>wheeled<br>passenger carrier (Auto-<br>Rickshaw)]|| |* No reduction in State / Centre Tax||| Subject to above, the vehicle owner is not required to get the permissible alterations, as mentioned above, recorded in the certification of registration. The Ministry of Road Transport and Highways has made clear in the communication dated 28.02.2019 that, the States may take necessary action against other unauthorised modification on the motor vehicles. In such circumstances, this writ petition is disposed of by directing the respondent Registering Authority to consider Ext.P5 application made by the petitioner for alteration of the class of his vehicle, taking note of the decision of the Division Bench of this Court in W.A.No.1678 of 2018 and connected cases and the **WP(C).No.14347 of 2019** **-:18:-** law laid down by the Apex Court in **Regional Transport Officer v. K.Jayachandra [(2019) 3 SCC 722]** and after conducting an inspection of the vehicle with reference to the relevant provisions under the Motor Vehicles Act and Rules made thereunder. A decision in this regard shall be taken, as expeditiously as possible and 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** DST **WP(C).No.14347 of 2019** **-:19:-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **PHOTOCOPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING REGN.NO.KL-42-E4686.** - **EXHIBIT P2 PHOTOCOPY OF THE CLEARANCE CERTIFICATE VIDE NO.21466/2019 DATED 24.04.2019 IN RESPECT OF THE VEHICLE NO.KL-43-E-4686 ISSUED BY THE SUB REGIONAL TRANSPORT OFFICE, NORTH PARAVOOR.** - **EXHIBIT P3 PHOTOCOPY OF THE NOTICE OF TRANSFER OF OWNERSHIP IN FORM 29 IN RESPECT OF THE VEHICLE, KL-42-E-4686.** - **EXHIBIT P4 PHOTOCOPY OF THE REPORT OF TRANSFER OF OWNERSHIP IN FROM 30 IN RESPECT OF THE VEHICLE KL-42 E-4686 SUBMITTED BEFORE THE RESPONDENT.** - **EXHIBIT P5 PHOTOCOPY OF THE REQUEST DATED 24.04.2019 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT IN RESPECT OF VEHICLE KL-42 E 4686.** **RESPONDENTS EXHIBITS NIL** **//True copy//** **P.A.To Judge**