SREEJESHKUMR M.V. v. Secretary, Regional Transport Authority, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** ## **WP(C).No.21087 OF 2019(I)** ## **PETITIONER:** **SREEJESHKUMR M.V., AGED 43 YEARS, S/O.SREEDHARAN NAMBIAR, SREENILAYAM, KARIYIL, NIRMALAGIRI P.O., THALASSERY.** **BY ADV. SRI.I.DINESH MENON** ## **RESPONDENT:** **THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, OFFICE OF THE REGIONAL TRANSPORT OFFICER, CIVIL STATION, KANNUR -670 001.** ## **SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)21087 OF 2019 ## **JUDGMENT** The petitioner, who is the registered owner of stage carriage bearing registration No.KL-13/Z-779, which is stated to be a 2013 model vehicle, has submitted Ext.P1 application dated 29.07.2019 before the respondent for temporary permit on the route Malabar Cancer Centre - Ambayathode in the defaulted vacancy of stage carriage bearing registration No.KL13/AJ-8756, which was covered by a regular permit on that route. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondent, the Secretary of the Regional Transport Authority, Kannur, to consider Ext.P1 application for temporary permit on the route Malabar Cancer centre - Ambayathode, in respect of stage carriage bearing registration No.KL-13/Z-779 in the defaulted vacancy of stage carriage bearing registration No.KL-13/AJ-8756 pending consideration of the application for condonation of delay in submitting the renewal application made by the basic permit holder, within a time frame to be fixed by this Court. 2. On 02.08.2019, when this writ petition came up for 3 WP(C)21087 OF 2019 admission, the learned Government Pleader was directed to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondent. 4. Section 87 of the Motor Vehicles Act deals with temporary permits. As per sub-section (1) of Section 87, a Regional Transport Authority and the State Transport Authority may without following the procedure laid down in Section 80, grant permits to be effective for a limited period which shall, not in any case exceed four months, to authorise the use of a transport vehicle temporarily (a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings; or (b) for the purpose of a seasonal business; or (c) to meet a temporary need; or (d) pending decision on an application for the renewal of a permit, and may attach to any such permit such condition as it may think fit. As per the proviso to sub-section (1), a Regional Transport Authority or as the case may be, State Transport Authority may, in the case of goods carriages, under the circumstances 4 WP(C)21087 OF 2019 of an exceptional nature, and for reasons to be recorded in writing, grant a permit for a period exceeding four months, but not exceeding one year. 5. Sub-section (2) of Section 87, which starts with a non-obstante clause provides that, notwithstanding anything contained in sub-section (1), a temporary permit may be granted thereunder in respect of any route or area where (i) no permit could be issued under Section 72 or Section 74 or Section 76 or Section 79 in respect of that route or area by reason of an order of a Court or other competent authority restraining the issue of the same, for a period not exceeding the period for which the issue of the permit has been so restrained; or (ii) as a result of suspension by a Court or other competent authority of the permit of any vehicle in respect of that route or area, there is no transport vehicle of the same class with a valid permit in respect of that route or area, or there is no adequate number of such vehicles in respect of that route or area, for a period not exceeding the period of such suspension. As per the proviso to sub-section (2), the number of transport vehicles in respect of which temporary permits are 5 WP(C)21087 OF 2019 so granted shall not exceed the number of vehicles in respect of which the issue of permits have been restrained or, as the case may be, the permit has been suspended. 6. A reading of the provisions under clause (c) of subsection (1) of Section 87 of the Motor Vehicles Act make it explicitly clear that the grant of a temporary permit under the said clause can only be made for meeting a particular temporary need. Therefore in an application for temporary permit, invoking the provisions under clause (c) of sub-section (1) of Section 87, it is incumbent upon the applicant to state the temporary need on the route applied for, so as to enable the competent authority to entertain such an application. For grant of temporary permit, the competent authority is required to consider the condition stipulated in clause (c) of sub-section (1) of Section 87 of the Act and only if that condition is satisfied, temporary permit can be granted for the time limit specified in that Section. ## 7. 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 6 WP(C)21087 OF 2019 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 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 7 WP(C)21087 OF 2019 vehicle shall be the consideration in an application for replacement, rather than the model of the incoming vehicle. 8. 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 8 WP(C)21087 OF 2019 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 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. 9. In **Jijith's case** ( _supra_ ), this Court held further 9 WP(C)21087 OF 2019 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. 10. 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 10 WP(C)21087 OF 2019 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. 11. In **Mohammed Rafi v. Regional Transport Authority (2019 (2) KLT 139)** this Court held 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 11 WP(C)21087 OF 2019 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. 12. In **Mohammed Rafi's case** ( _supra_ ), this Court directed the Transport Commissioner to 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 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 12 WP(C)21087 OF 2019 replacement. 13. In **Saji v. Deputy Transport Commissioner [2019 (3) KLT 163]** , this Court held that the Transport Commissioner shall take necessary steps to ensure that no motor vehicle, including a Government vehicle, is allowed to be used in any public place, after tampering with the percentage of visual transmission of light of the safety glass of the windscreen, rear window and side windows, either by pasting any material upon the safety glass or by fixing sliding 'cloth ' curtains , etc. and that, the safety glass of the windscreen and rear window of every motor vehicle is always maintained in such a condition that the visual transmission of light is not less than 70% and that of the safety glass used for side windows is not less than 50%, as per the mandate of sub-rule (2) of Rule 100 of the CMV Rules. This Court held further that the Transport Commissioner shall also take necessary steps to ensure strict compliance of the provisions under Rules 102 to 111 of the CMV Rules and no motor vehicle shall be allowed to be used in any public place without maintaining the signalling devices, direction indicators, reflectors, reflective tapes, lamps, 13 WP(C)21087 OF 2019 parking lights, etc. as specified thereunder, in good working condition; since the use of any motor vehicle in a public place without complying with the mandatory requirements of the said rules is likely to endanger the safety of other road users. No motor vehicle shall be permitted to be used in public place putting any object in front of such lighting devices, reflectors, etc. or 'tinting' such lighting devises (i.e., headlights, tail lights, etc.) or reflectors by fixing vinyl tint film sticker. No motor vehicle shall be permitted to be used in any public place, which is fitted with any lights or lighting devices other than those specifically provided under the provisions of the CMV Rules. No motor vehicle shall be permitted to be used in a public place which is fitted with LED bar lights, LED flexible strip lights, after-market (Non-OEM) halogen driving lamps, etc. No transport vehicle, including the vehicles owned/operated by KSRTC and KURTC, shall be permitted to be used in any public place exhibiting advertisements, figures, writings, etc. which are likely to distract the attention of other drivers, cyclists and pedestrians. Exhibition of no such advertisements, figures, writings, etc. shall be permitted on 14 WP(C)21087 OF 2019 the body of the transport vehicle at places intended for exhibiting the name and address of the operator as per clause (g) of Section 84 of the MV Act; the particulars enumerated in clauses (a) to (g) of Rule 93 of the KMV Rules; the reflectors and reflective tapes as per Rule 104 of the CMV Rules; and also on the safety glass of the windscreen, rear window and side windows of a transport vehicle which has to be maintained as per the standards prescribed under sub-rule (2) of Rule 100 of the CMV Rules. 14. In view of the law laid down in the decisions referred to _supra_ , before issuing a temporary permit, based on an application filed under Section 87 of the Motor Vehicles Act, the competent authority has to consider the road worthiness and viability of the vehicle and shall ensure that, the 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 15 WP(C)21087 OF 2019 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 is fitted with door shutters as mandated by sub-rule (2) of Rule 280 of the Kerala Motor Vehicles Rules; etc. 15. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the respondent to consider and pass appropriate orders on Ext.P1 application made by the petitioner for temporary permit under clause (c) of sub-section (1) of Section 87 of the Motor Vehicles Act, strictly in accordance with law, taking note of the law laid down hereinbefore, with notice to the petitioner and after affording him an opportunity of being heard, within a period of three weeks from the date of receipt of a certified copy of this judgment. It is made clear that this Court has not expressed anything as to the merits of the claim made by the petitioner in Ext.P1, as to the existence of any such vacancy or temporary need, as stated in that application, and it is for the WP(C)21087 OF 2019 16 respondent to take an appropriate decision on that application, strictly in accordance with law. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 17 WP(C)21087 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE TEMPORARY PERMIT**| |---|---| ||**APPLICATION DT. 29/7/2019.**| |**EXHIBIT P2**|**TRUE COPY OF THE CHALAN DATED**| ||**29/7/2019.**| |**EXHIBIT P3**|**TRUE COPY OF THE REGULAR PERMIT DATED**| ||**28/11/2018.**| |**EXHIBIT P4**|**TRUE COPY OF THE RENEWAL APPLICATION**| ||**DATED 23/7/2019.**| |**EXHIBIT P5**|**TRUE COPY OF THE CHALAN DATED**| ||**23/7/2019.**| |**EXHIBIT P6**|**TRUE COPY OF THE DELAY PETITION DATED**| ||**23/7/2019.**| ## **RESPONDENT'S EXHIBITS: NIL** **TRUE COPY P.A. TO JUDGE**