Subair Kunnil Hamza v Regional Transport Officer, Kasaragod and Others

## **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.18452 OF 2019(F)** ## **PETITIONER/S:** **SUBAIR KUNNIL HAMZA,AGED 47 YEARS S/O.KUNNIL HAMZA, KUNNIL HOUSE, KOTTAKKUNNU, BEKKAL FORT .P.O, KASARAGOD DISTRICT.** **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH** ## **RESPONDENT/S:** - **1 THE REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, KASARAGOD-671314** - **2 THE ASSISTANT MOTOR VEHICLE INSPECTOR, REGIONAL TRANSPORT OFFICE, KASARAGOD-671314** - **3 THE STATION HOUSE OFFICER, KANHANGAD, KASARAGOD-671314** - **4 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TRANSPORT, GOVT SECRETARIAT, TRIVANDRUM-695001** - **5 THE MOTOR VEHILCE INSPECTOR, SUB REGIONAL TRANSPORT OFFICE, KANHANGAD. (IS SUO MOTU IMPLEADED AS P[ER ORDER DATED30.7.2019 IN WP(C) 18452/19.** - **OTHER PRESENT:** **SRI HARISH K.P.-SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No. 18452 of 2019 -2- ## **JUDGMENT** The petitioner, who is the registered owner of a Maruthi Wagon R car bearing Registration No.KL-60/G-5050, covered by Ext.P1 certificate of registration, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Assistant Motor Vehicle Inspector to release the said vehicle, which is now in the custody of the 3[rd] respondent Station House Officer, Kanhangad and permit him to restore the said vehicle into its original position, within such time, which this Court may deem fit. The petitioner has also sought for a writ of mandamus, commanding the respondent to release the certificate of registration of the said vehicle. 2. As per Ext.P1 certificate of registration, the class of vehicle is 'LMV Motor Car' and the type of body is 'Saloon'. On 13.06.2016, the petitioner's vehicle was issued with Ext.P2 check report by the 2[nd] respondent, alleging unauthorised alteration, and the petitioner was directed to produce the vehicle for inspection in the office of the 1[st] respondent Regional Transport Office, within 14 days. Challenging Ext.P2 check report, the petitioner had approached this Court in W.P. W.P.(C) No. 18452 of 2019 -3- (C) No.21696 of 2016. During the pendency of that writ petition, the petitioner was issued with Ext.P3 charge memo dated 29.06.2016 by the 1[st] respondent, invoking Section 86 of the Motor Vehicles Act, for changing the type of body as 'open body' and also for changing the seating capacity. On receipt of Ext.P3 charge memo, the petitioner submitted Ext.P4 reply dated 05.07.2016, seeking permission to compound the offence and to give him an opportunity to file application for regularisation of the alterations already made. In the said reply, the pendency of W.P.(C)No.21696 of 2016 was also brought to the notice of the 1[st] respondent. According to the petitioner, without noticing that W.P. (C)No.21696 of 2016 was dismissed for default on 07.10.2016, he was using the motor car. While so, on 26.04.2019, the 1[st] respondent seized the vehicle and issued Ext.P5 check report, since the body of the vehicle was found altered as 'open body' to use as 'goods vehicle', in violation of the prototype approval and Section 52 of the Motor Vehicles Act, read with section 191 of the said Act. The said officer found that it is not easy to make the vehicle restored to the W.P.(C) No. 18452 of 2019 -4- original condition as per the prototype approval. Therefore, while forwarding the check report for necessary action under Section 53 of the said Act, the vehicle was handed over to the 3[rd] respondent Station House Officer, Kanhangad, under Section 207 of the Motor Vehicles Act for temporary custody. In Ext.P5 check report, it was also noticed that the certificate of registration of the vehicle was not produced. 3. According to the petitioner, he is having a goat farm little away from his house and the vehicle in question is mainly used for the purpose of carrying feeds and other items. He used to bring agricultural products, such as vegetables and fruits, from the farm to his house. Since the farm is in a hilly area with narrow and slippery road, all vehicles cannot be taken there. Big pick-up van cannot be taken to the farm due to the poor condition of the road. Therefore, in order to suit the convenience, the petitioner made certain alterations on the vehicle by making an open body on the rear to carry various articles. 4. On 08.07.2019, when this writ petition came up for admission, the learned Government Pleader was directed to W.P.(C) No. 18452 of 2019 -5- get instructions. The learned counsel for the petitioner sought time to produce the photographs of the vehicle in question. 5. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 6. The petitioner would contend that on account of alteration of the vehicle, there is no violation of either Section 39 or Section 52 of the Motor Vehicles Act. No alterations have been made, which affects the nature and type of the vehicle at variance with that originally specified by the manufacturer. As per the Explanation to Section 52, alteration means change in the structure of the vehicle, which results in a change in its basic feature. The petitioner, while altering the vehicle, has retained its basic features and the structure of the vehicle also remains the same. Therefore, the respondents cannot insist on restoration of the vehicle to its original condition and the vehicle will have to be released to the petitioner forthwith. 7. Per contra, the learned Senior Government Pleader would contend that the alterations made by the petitioner on W.P.(C) No. 18452 of 2019 -6- the vehicle covered by Ext.P1 certificate of registration are legally impermissible, in view of the provisions under Section 52 of the Motor Vehicles Act. In view of the law laid down by the Apex Court in **Regional Transport Officer v. K. Jayachandra [(2019) 3 SCC 722]** and the clarificatory communication dated 28.02.2019 issued by the Ministry of Road Transport and Highways, no such alterations are legally permissible. On account of structural alterations, the vehicle cannot be restored to its original condition as per the prototype approval. Therefore, the vehicle cannot be returned to the petitioner, especially when, despite the issuance of Ext.P2 check report, he continued to use the vehicle untill its seizure by Ext.P5 check report. 8. During the course of arguments, the learned counsel for the petitioner has made available for the perusal of this Court the photographs of the vehicle covered by Ext.P1 certificate of registration. The learned Government Pleader has made available for the perusal of this Court a report dated 20.07.2019 of the additional 5[th] respondent Motor Vehicle Inspector, Sub Regional Transport Office, Kanhangad, along W.P.(C) No. 18452 of 2019 -7- with the photographs of the vehicle in question. A copy of the said report, along with the photographs, is handed over to the learned counsel for the petitioner. 9. As per the report of the additional 5[th] respondent dated 20.07.2019, he seized the vehicle covered by Ext.P1 certificate of registration on 26.04.2019 at 12.45pm, at Kanhangad Alampally, since the vehicle was found altered as open body, in order to operate as goods vehicle. The vehicle is a Maruti Wagon R car manufactured in the year 2014 with a seating capacity of five in all, with type of body as 'Saloon', with an unladen weight of 870kg. The petitioner had altered the structure by cutting the rear portion of the body around 1200mm in length, 1200mm in width and 600mm in depth. By altering the body structure, the seating capacity is changed to two in all, against five in all. The body structure of the vehicle is altered as open body, against Saloon and by altering the body structure the unladen weight is reduced from 870kgs. The class of the vehicle is changed to goods vehicle, against LMV Motor Car less than 1500. Therefore, there is violation of Section 52 of the Motor Vehicles Act, read with W.P.(C) No. 18452 of 2019 -8- Sections 39 and 191 of the said Act. Since the body of the vehicle was modified by cutting almost half portion, it is not possible to restore the same. The petitioner welded pieces of iron rod in the rear wheel arch in order to make a platform at the rear end. On restoration of the vehicle again by welding, the body would not attain the original strength, which is already tested by authorised testing authority at the time of prototype approval, as per Rule 125C and the Rule 126 of the Central Motor Vehicles Rules, in accordance with AIS:0172000. The restoration of the vehicle body will reduce its strength to sustain comprehensive stress, tensile stress and crushing stress, which may directly affect the safety of the passengers as prototype approved saloon body. Hence, the vehicle will have to be dismantled and the certificate of registration has to be cancelled under Sections 53 and 54 of the MV Act. 10. In **Hassan Koya v. Transport Commissioner, Thiruvananthapuram [2015 (1) KHC 741]** a Division Bench of this Court, after referring to the provisions under Sections 41 and 58 of the Motor Vehicles Act, 1988 and Rule W.P.(C) No. 18452 of 2019 -9- 47 of the Central Motor Vehicles Rules, 1989 held that, in Form 20, among the particulars that are required to be furnished, Sl.No.12 refers to ‘class of vehicle’, Sl.No.14 refers to ‘type of body’, Sl.No.15 refers to ‘type of vehicle’ and Sl. No. 24 refers to ‘seating capacity’ (including driver). In respect of Transport Vehicles other than motor cab, certain other particulars are also to be specified which, inter alia, includes the number, description, size and ply rating of tyres, as declared by the manufacturer, gross vehicle weight as certified by the manufacturer, maximum axle weight, the dimensions, etc. The application has to be accompanied by sales certificate in Form 21 to be issued by the manufacturer/dealer. In the said form Sl.No. 1 refers to ‘class of vehicle’, Sl.No.9 refers to ‘seating capacity', which includes driver, and Sl.No.14 refers to ‘type of body’. Rule 48 indicates that after verification of the documents furnished in terms of Rule 47, the Registering Authority shall issue a certificate of registration in Form 23 or 23A. Form 23 is the certificate of registration, which shall contain various particulars and Sl.No.1 refers to ‘class of vehicle’, Sl.No.3 ‘type of body’, W.P.(C) No. 18452 of 2019 -10- Sl.No.11 ‘maker's classification’, Sl.No.13 ‘seating capacity’. Certain additional particulars are to be included in all Transport Vehicles other than motor cabs relating to gross vehicle weight, particulars regarding rating of tyres as declared by manufacturer, axle weight, etc. Therefore it is evident that the class of vehicle is one of the specific particulars to be mentioned in the application for registration, the manufacturer's certificate, as well as registration certificate. 11. In **Hassan Koya's case (supra)** the Division Bench noticed that, Chapter V of the Central Motor Vehicles Rules prescribes the parameters and standards which the vehicles have to maintain which, inter alia, includes overall dimension of the vehicle, emission levels, size of tyres, brake, gear, windscreen wipers, lights, safety devices, etc. The manufacturers are under obligation to comply with the standards prescribed under the Rules. Rule 126, inter alia, provides that every manufacturer of motor vehicle shall submit the prototype of vehicle for test by the Vehicle Research and Development Establishment, Ministry of Defence W.P.(C) No. 18452 of 2019 -11- or Automotive Research Association of India, Pune or such other agencies as recognised by the Government to ensure that they comply with the standards prescribed under the Rules which applies to imported vehicles as well. The Division Bench held that, if a manufacturer classifies the motor vehicle as a goods carriage or goods vehicle, there cannot be any doubt that it is solely constructed or adapted for the carriage of goods. In such an event, the vehicle can only be classified as a goods carriage and therefore a transport vehicle and the Registering Authority has no discretion in the matter. However, it is open for the Central Government to specify by notification in the Official Gazette, to include in the certificate of registration the type of vehicle having regard to the design, construction and use of motor vehicle, as specified under subsection (4) of Section 41 of the Motor Vehicles Act. Every manufacturer has to comply with the prototype test in terms of Rule 126 of the Central Motor Vehicles Rules and the utility of the vehicle depends upon the approved test by the competent agency. After referring to a publication of Automotive Research Association of India (ARAI) published in W.P.(C) No. 18452 of 2019 -12- December, 2005 which categorises vehicles into different categories, the Division Bench held that, when a particular model vehicle is certified by an approved agency under Rule 126, the classification has to be made on that basis. If the model of vehicle is categorised as goods vehicle under N1 Category by the manufacturer, the same entry has to come in the registration certificate as well and the said classification cannot be changed. 12. In **Regional Transport Officer v. K.Jayachandra [(2019) 3 SCC 722]** 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 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 W.P.(C) No. 18452 of 2019 -13- 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 change of tyres of higher capacity, keeping in view road safety and protection of environment. Paragraphs 10 to 13 of the said decision read thus; “ **10.** Section 52 of the Act deals with alteration in the motor vehicle. Prior to that, provision with respect to alteration in motor vehicles was contained in Section 32 of the Motor Vehicles Act, 1939. Section 32 of the Act of 1939 is extracted hereunder: **32. Alternation in motor vehicle.-** (1) No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are no longer accurate, unless- (a) he has given notice to the registering authority within whose jurisdiction he resides of the alteration he proposes to make, and (b) he has obtained the approval of the registering authority to make such alteration: W.P.(C) No. 18452 of 2019 -14- Provided that it shall not be necessary to obtain such approval for making any change in the unladen weight of the motor vehicle consequent on the addition or removal of fittings or accessories if such change does not exceed two percent. of the weight entered in the certificate of registration. (2) Where a registering authority has received notice under sub-section (1), it shall, within seven days of the receipt thereof, communicate, by post, to the owner of the vehicle its approval to the proposed alteration or otherwise: Provided that where the owner of the motor vehicle has not received any such communication within the said period of seven days, the approval of such authority to the proposed alteration shall be deemed to have been given. (3) Notwithstanding anything contained in subsection (1), a State Government may, by notification in the Official Gazette, authorise, subject to such conditions as may be specified in the notification, the owners of not less than ten transport vehicles to alter any vehicle owned by them so as to change its engine number by replacing the engine thereof without the approval of the registering authority. (4) Where any alteration has been made in a motor vehicle either with the approval of the registering authority given or deemed to have been given under sub-section (2) or by reason W.P.(C) No. 18452 of 2019 -15- of any change in its engine number without such approval under subsection (3), the owner of the vehicle shall within fourteen days of the making of the alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of the alteration may be entered therein. (5) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority. (Emphasis supplied) **11.** The alteration in a motor vehicle under the parent Act is dealt with in Section 52 of Motor Vehicles Act, 1988. Section 52 as originally enacted is extracted hereunder: **52. Alternation in a motor vehicle.-** (1) No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are no longer accurate, unless.- (a) he has given notice to the registering authority within whose jurisdiction he has the residence or the place of business where the vehicle is normally kept, as the case may be of the alteration he proposes to make; and (b) he has obtained the approval of that registering authority to make such alteration: W.P.(C) No. 18452 of 2019 -16- Provided that it shall not be necessary to obtain such approval for making any change in the unladen weight of the motor vehicle consequent on the addition or removal of fittings or accessories if such change does not exceed two percent of the weight entered in the certificate of registration. Provided further that 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, compressed natural gas, solar power or any other fuel or source of energy other than liquid petroleum gas shall be treated as an alteration but that shall be subject to such conditions as may be prescribed. (2) Where a registering authority has received notice under sub-section (1), it shall, within seven days of the receipt thereof, communicate, by post, to the owner of the vehicle its approval to the proposed alteration or otherwise: Provided that where the owner of the motor vehicle has not received any such communication within the said period of seven days, the approval of such authority to the proposed alteration shall be deemed to have been given. (3) Notwithstanding anything contained in subsection (1), a State Government may, by notification in the Official Gazette, authorise, subject to such conditions as may be specified W.P.(C) No. 18452 of 2019 -17- in the notification, the owners of not less than ten transport vehicles to alter any vehicle owned by them so as to change its engine number by replacing the engine thereof without the approval of the registering authority. (4) Where any alteration has been made in a motor vehicle either with the approval of the registering authority given or deemed to have been given under sub-section (2) or by reason of any change in its engine number without such approval under sub-section (3), the owner of the vehicle shall within fourteen days of the making of the alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of the alteration may be entered therein. (5) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority. (6) No person holding a vehicle under a hirepurchase agreement shall make any alteration to the vehicle for which approval of the registering authority is required Under Subsection (1) except with the written consent of the registered owner. (Emphasis supplied) **12.** Section 52 has undergone change by way of Amendment Act 27 of 2000. The Statement of Objects W.P.(C) No. 18452 of 2019 -18- and Reasons of Amendment Act 27 of 2000 is extracted hereunder: ## **Amendment Act 27 of 2000 - Statement of** **Objects and Reasons.-** The Motor Vehicles Act, 1988 consolidated and rationalized various laws regulating road transport. The said Act was amended in 1994. 2. Further amendments in the aforesaid Act have become necessary so as to reduce the vehicular pollution and to ensure the safety of the road users. It is, therefore, proposed to prohibit alteration of vehicles in any manner including change of tyres of higher capacity. However, the alteration of vehicles with a view - to facilitating the use of eco friendly fuel including Liquefied Petroleum Gas (LPG) is being permitted. Further, it is proposed to confer powers on the Central Government to allow the alteration of vehicles for certain specified purposes. 3. At present, the educational institutions are not required to obtain permits for the operation of buses owned by them. It is proposed to bring the buses run by these institutions within the purview of the aforesaid Act by requiring them to obtain permits. 4. It is also proposed to allow renewal of permits, driving licences and registration certificates granted under the Motor Vehicles Act, 1939 to be renewed under the Motor Vehicles Act, 1988, by inserting new Section 217A. W.P.(C) No. 18452 of 2019 -19- 5. The proposed amendments are essential in the overall interest of securing road safety and maintaining a clean environment. (Emphasis supplied) **13.** It is apparent that Section 52 has been amended with the purpose to prohibit alteration of vehicles in any manner including change of tyres of higher capacity, keeping in view road safety and protection of environment. Section 52 has been amended by virtue of Amendment Act 27 of 2000 in the following manner: **52. Alteration in a motor vehicle.-** (1) No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are at variance with those originally specified by the manufacturer: Provided that where the owner of a motor vehicle makes modification of the engine, or any part thereof of a vehicle for facilitating its operation by different type of fuel or source of energy including battery, compressed natural gas, solar power, liquid petroleum gas or any other fuel or source of energy, by fitment of a conversion kit, such modification shall be carried out subject to such conditions as may be prescribed: Provided further that the Central Government may prescribe specifications conditions for approval, retrofitment and other related matters for such conversion kits; Provided also that the Central Government may grant an exemption for alteration of vehicles in a manner other than specified above, for any specific purpose. W.P.(C) No. 18452 of 2019 -20- (2) Notwithstanding anything contained in subsection (1), a State Government may, by notification in the Official Gazette, authorise, subject to such conditions as may be specified in the notifications, and permit any person owning not less than ten transport vehicles to alter any vehicle owned by him so as to replace the engine thereof with engine of the same make and type, without the approval of registering authority. (3) Where any alteration has been made in a motor vehicle without the approval of registering authority or by reason of replacement of its engine without such approval under sub-section (2), the owner of the vehicle shall, within fourteen days of the making of the alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of registration may be entered therein. (4) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority. (5) Subject to the provisions made Under Subsection (1), (2), (3) and (4), no person holding a vehicle under a hire-purchase agreement shall make any alteration to the vehicle except with the written consent of the registered owner. W.P.(C) No. 18452 of 2019 -21- Explanation.- For the purpose of this section, ‘alteration’ means a change in the structure of a vehicle which results in change in its basic feature. (Emphasis supplied) 13. The judgment of the Apex Court in **K.Jayachandra's case (supra)** arises out of the judgment of a Division Bench of this Court in **Jayachandran K. v. Regional Transport Officer, Trichur [2012 (4) KHC 684]** (judgment dated 19.11.2012 W.P.(C)Nos.28702 of 2007, 1323 of 2010, 1468 of 2010 and 274 of 2012). Those writ petitions were referred to the Division Bench in view of the conflict in judgments in W.P.(C)No.29946 of 2006 and W.P.(C)No.8836 of 2007 regarding the issue of alteration. The question before the Division Bench was as to whether alteration is permissible at variance with the manufacturer's specification contained in the prototype test certification. In W.P.(C)No.29946 of 2006 decided on 16.01.2007 the learned Single Judge held that Rule 126 of the Central Motor Vehicles Rules does not fetter the powers of the Regional Transport Authorities to intelligently exercise their discretion in terms of the Kerala Motor Vehicles Rules, in particular Rules 96, 103 and 261; W.P.(C) No. 18452 of 2019 -22- whereas a contrary view was taken by another learned Single Judge in W.P.(C)No.8836 of 2007 decided on 23.5.2007 and it was observed that alteration in derogation of prototype test in terms of Rule 126 of the Central Motor Vehicles Rules cannot be approved. 14. Before the Division Bench, in W.P.(C)No.29946 of 2006, the unladen weight of the vehicle before alteration was 2315kg. and the same had been increased on alteration to 2715kg. Besides, there were changes in the measurement of the body, which resulted in declining the permission for registration. In W.P.(C)No. 8836 of 2007, the length of the chassis of the vehicle as per prototype was 832.5cm. but after building the body it was found to have been extended to 885cm. W.P.(C)No.28702 of 2007 was for quashing Circular No.7/2006 and also the order passed on 3.7.2007 declining registration to a medium commercial vehicle, on the ground that the platform of the bus was extended by 37cms. and the body was having an extension of 39cms. from the extreme rear end of the chassis. W.P.(C)Nos.1323 of 2010 and 1468 of 2010 were filed with respect to the denial of registration by W.P.(C) No. 18452 of 2019 -23- the Registering Authorities as the body built over the chassis extended by a length of 15 cms. beyond the chassis, which was not adhering to the specifications given by the manufacturer of the vehicle; W.P.(C)No.274 of 2012 was filed by the owner of the vehicle questioning the denial of registration in view of Rule 126 of the Central Motor Vehicles Rules and Circular No.7/2006; and W.P.(C)No.274 of 2012 was filed against the refusal to grant registration of a vehicle which was re-modelled as a ‘recovery vehicle’, altered in an unauthorised manner, by cutting the chassis of the vehicle by one feet at the rear end, which was not in conformity with the prototype test in terms of Rule 126 of the Central Motor Vehicles Rules. 15. The Division Bench of this Court, by a common judgment dated 19.11.2012 [which was under challenge before the Apex Court in **K.Jayachandra's case (supra)** ] held that Rule 126 of the Central Motor Vehicles Rules mandates prototype of every motor vehicle being subjected to test and certification by the authorities prescribed therein. But, it does not, for a moment, lead to an inference that the W.P.(C) No. 18452 of 2019 -24- body has to be constructed only within the contours of the measurements given in the Prototype Test Certification. If such a view is taken, it would render otiose Rule 93 of the Central Motor Vehicles Rules, which prescribes the overall dimensions of the motor vehicles. Rule 93 prescribes the permissible limits of length, breadth and overhang. Such dimensions are prescribed with reference to the axis of the motor vehicle from which the measurements are to be taken. Section 52 of the Motor Vehicles Act also provides for alteration with respect to motor vehicles, however, with due approval by the registering authority. Rule 96 of the Kerala Motor Vehicles Rules provides for inspection of vehicle prior to registration; Rule 103 provides for recording such alteration; and Rule 261 provides for body construction on a chassis having approved prototype. Rule 96, by its proviso, provides that in the case of any vehicle, the body of which is not factory built or in a pattern previously approved by the registering authority; when presented for registration, the inspecting authority shall prepare and issue a measurement certificate in Form MC. Such measurement certificate shall W.P.(C) No. 18452 of 2019 -25- also be forwarded to the registering authority. This necessarily involves a consideration by the registering authority as to the - road worthiness and safety of the vehicle and it cannot be a mechanical exercise where it is only verified as to whether the measurements conform to the Prototype Test Certificate. The Division Bench noticed that, while Part-I of Form 22A is to be issued by the manufacturer, Part-II is to be issued by the bodybuilder. What is contemplated is that the body can be built on a chassis in compliance with the provisions of the MV Act and the Rules framed thereunder and the safety of such - vehicle and its road worthiness, to be driven with such body built on the chassis, has to be assessed in conformity with the provisions of the Motor Vehicles Act and the Rules by the registering authority. Any specification issued by the State or Regional Transport Authorities also has to be looked into. The registering authority cannot abdicate itself of such authority, which is coupled with a duty to the public at large; relying on the Prototype Test Certification granted under Rule 126 of the Central Motor Vehicles Rules. W.P.(C) No. 18452 of 2019 -26- 16. However, 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 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 W.P.(C) No. 18452 of 2019 -27- 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 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 are that the vehicle cannot be so altered that the particulars contained in W.P.(C) No. 18452 of 2019 -28- the certificate of registration are at variance with those ‘ ’ originally specified by the manufacturer . 17. 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 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 specifications made by manufacturer. Such W.P.(C) No. 18452 of 2019 -29- 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 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 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 W.P.(C) No. 18452 of 2019 -30- 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. 18. In **Avishek Goenka v. Union of India [(2012) 5 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 W.P.(C) No. 18452 of 2019 -31- 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. 19. 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 W.P.(C) No. 18452 of 2019 -32- 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. 20. 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 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 W.P.(C) No. 18452 of 2019 -33- 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 are 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. 21. The Ministry of Road Transport and Highways has issued Ext.P6 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 ‘alterations in motor vehicles’, W.P.(C) No. 18452 of 2019 -34- 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: W.P.(C) No. 18452 of 2019 -35- |Sl.<br>No.|Changes of parameter|Subject to compliance of<br>the following| |---|---|---| |1|Seats<br>A. Lateral/Side facing<br>seat fitment or alteration<br>in 4 Wheelers<br>B. Deletion of seats*|1. Vehicle Weight after the<br>alteration/changes not to<br>exceed the permissible<br>Gross Vehicle Weight.<br>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 other occupant(s).<br>5. Folding seats, if fitted,<br>should have auto lock in<br>both used /unused position.<br>6. Such seats shall be fitted<br>in rows other than 1strow<br>of the driver.<br>7. Such fitments shall not<br>obstruct<br>ingress<br>and<br>egress.| |2|Soft Top to Hard Top or<br>vice versa in L-5 and M-1<br>vehicles<br>(L-5<br>means<br>three-<br>wheeled motor vehicle,<br>and M-1 means a motor<br>vehicle for carriage of<br>passengers, comprising<br>not more than eight<br>seats in addition to<br>driver's seat.)|| |3|Side door or bars in<br>passenger area of L5M<br>on right hand side of<br>driver. [(L5-M three<br>wheeled<br>passenger<br>carrier (Auto-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. 22. The two main types of automobile designs are 'structural shell' and 'structural frame'. 'Monocoque body' falls W.P.(C) No. 18452 of 2019 -36- under the former category, while 'body-on-frame' construction falls under the latter category. The main difference between monocoque body and body-on-frame construction is that in body-on-frame construction, metal tubes, bulkheads and box sections provide the most of the structural integrity. The frame is the load-bearing member and the body is bolted onto the frame separately. On the other hand, monocoque body of a vehicle consists of a single structural shell, where the exterior body panels of the vehicle provide the bulk of the structural integrity. Separately made pressed steel or - aluminum body panels are welded together to form a load - bearing structure. The 'body shell' acts as a load bearing member onto which suspension, engine and transmission are bolted. The body shell distributes the stress generated by the vehicle during motion, throughout the structure, alleviating localised stress. Reinforcements are provided at different sections like doors, bonnet, etc. for crash protection. A vehicle with 'monocoque body' can resist impact from various directions, which contributes to a higher safety factor in monocoque constructions. W.P.(C) No. 18452 of 2019 -37- 23. In the instant case, as per Ext.P1 certificate of registration, the class of the petitioner's vehicle is 'LMV Motor Car and the type of body is 'Saloon'. It is a 2014 model passenger car manufactured by M/s.Maruti Suzuki Ltd., with a seating capacity of five in all, with an unladen weight of 870kg. The petitioner had altered the structure by cutting the rear portion of the body around 1200mm in length, 1200mm in width and 600mm in depth. By altering the body structure, the seating capacity is changed to two in all, against five in all. The type of body is altered as open body. On account of such alterations, the unladen weight of the vehicle is reduced from 870kgs. The petitioner welded pieces of iron rod in the rear wheel arch in order to make a platform at the rear end. According to the additional 5[th] respondent, the restoration of the vehicle body will reduce its strength to sustain comprehensive stress, tensile stress and crushing stress, which may directly affect the safety of the passengers as prototype approved saloon body. Hence, the vehicle will have to be dismantled and the certificate of registration has to be cancelled under Sections 53 and 54 of the MV Act. W.P.(C) No. 18452 of 2019 -38- 24. Maruthi Wagon R car manufactured by M/s.Maruti Suzuki Ltd. is having a monocoque body. Any structural alterations on the pressed steel body panels the said vehicle, - which are welded together to form a load bearing structure, will adversely affect the structural integrity of its monocoque - body. The body shell of Maruthi Wagon R car acts as a load bearing member, which distributes the stress generated by the vehicle during motion, throughout the structure. Reinforcements are provided at different sections, for crash protection. As evident from the photographs, in order to alter the vehicle as open body pickup, the petitioner made structural alterations on the pressed steel body panels of Wagon R car, which distributes throughout the structure the stress generated by the vehicle during motion. The structural alterations made by the petitioner on the pressed steel body panels of Wagon R car would result in the body shell of the vehicle, which acts as a load-bearing member, loosing its structural integrity and also the higher safety factor attached to a monocoque body. 25. As held by the Apex Court in **K.Jayachandra** W.P.(C) No. 18452 of 2019 -39- **[(2019) 3 SCC 722]** , sub-section (1) of Section 52 of the Motor Vehicles Act, 1988 has been amended by the Motor Vehicles (Amendment) Act, 2000, with the purpose to prohibit alteration of vehicles in any manner including change of tyres of higher capacity, keeping in view road safety and protection of environment. 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. A motor vehicle has to comply with the provisions of the Rules contained in Chapter V of the Central Motor Vehicles Rules, 1989, 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 Motor Vehicles Act and what is prohibited therein, to allow the same is not the intendment of the Rules contained in the Chapter. 26. As per Rule 126 of the Central Motor Vehicles Rules, prototype of every motor vehicle shall be subjected to test by the Automotive Research Association of India (ARAI) W.P.(C) No. 18452 of 2019 -40- or other testing agencies referred to in therein. As per Rule 126A, the testing agencies referred to in Rule 126 shall, in accordance with the procedures laid down by the Central Government, also conduct tests on vehicles drawn from the production line of the manufacturer to verify whether these vehicles conform to the provisions of the rules made under Section 110 of the Motor Vehicles Act. As per the procedure for prototype approval, the testing agency has to certify that the base model and the variants of the motor vehicle comply with the provisions of the Central Motor Vehicles Rules, as amended up-to-date, including the requirements as detailed in the Annexures. In the process of prototype approval, the testing agency has to certify that tyres (size & ply rating); brakes; steering gear; safety glass; windscreen wiper; signalling devices, direction indicators & stop lights; position of the indicators; fitment of reflectors; lamps; deflection of lights; horns; rear view mirror; safety belt, seats & their anchorages, head restraints; warning triangle; etc. in the base model and the variants are complying with the relevant provisions of the Central Motor Vehicles Rules and also the W.P.(C) No. 18452 of 2019 -41- relevant AIS/IS standards. The testing agency has to certify the compliance verification of automobile lamps; hydraulic brake hose; accelerator control system; door lock & door retention components; etc. The testing agency has also to specify the test standards for various components, with reference to the relevant AIS/IS standards. 27. As held by the Division Bench of this Court in **Hassan Koya [2015 (1) KHC 741]** , every manufacturer has to comply with the prototype test in terms of Rule 126 of the Central Motor Vehicles Rules and the utility of the vehicle depends upon the approved test by the competent agency. When a particular model vehicle is certified by an approved agency under Rule 126, the classification has to be made on that basis. The same entry has to come in the registration certificate as well and the said classification cannot be changed. 28. In **Saji K.M. v. Deputy Transport Commissioner, Thrissur and others [2019 (3) KHC 836]** this Court held that, in view of the provisions under Rules 102 to 111 of the Central Motor Vehicles Rules, 1989, Rules 249 W.P.(C) No. 18452 of 2019 -42- and 360 of the Kerala Motor Vehicles Rules, 1989, the provisions under the Motor Vehicles (Driving) Regulations, 2017 and also the law laid down by the Apex Court in **Avishek Goenka [(2012) 5 SCC 321]** and **S.Rajaseekaran [(2018) 13 SCC 532]** , every motor vehicle shall be fitted with signalling devices, direction indicators, reflectors, reflective tapes, lamps, parking lights, etc. as per the mandate of the provisions under the Central Motor Vehicles Rules and such signalling devices, direction indicators, reflectors, reflective tapes, lamps, parking lights, etc. have to be maintained as such. As per the mandate of Rule 124 of the Central Motor Vehicles Rules, every manufacturer shall get the prototype of the part, component or sub-assembly used in the manufacture of a vehicle, for which standards have been notified, approved from any agency referred to in Rule 126. Therefore, the signalling devices, direction indicators, reflectors, lamps, parking lights, etc. fitted on a motor vehicle by the manufacturer, after obtaining prototype approval for those parts under Rule 124 of the Central Motor Vehicles Rules, have to be maintained as such. W.P.(C) No. 18452 of 2019 -43- 29. In **Saji's case** , this Court held that, as held by the Apex Court in **Avishek Goenka [(2012) 5 SCC 321]** 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. What is permitted has been specifically provided for and what has not been specifically stated would obviously be deemed to have been excluded from the Central Motor Vehicles Rules. Therefore, no motor vehicle can be fitted with any lights or lighting device other than those specifically provided under the provisions of the Central Motor Vehicles Rules. 30. In the instant case, as evident from the photographs, the petitioner changed the reflectors, lamps, parking lights, etc. fitted on the rear of the vehicle by the manufacturer, after obtaining prototype approval for those parts under Rule 124 of the Central Motor Vehicles Rules. Therefore, in view of the provisions under sub-rule (1) of Rule 96 of the Central Motor Vehicles Rules, the petitioner's vehicle W.P.(C) No. 18452 of 2019 -44- which does not comply with the provisions of Chapter V of the Central Motor Vehicles Rules, cannot be allowed to be used in any public place. 31. In view of the provisions contained in sub-section (1) of Section 52 of the Motor Vehicles Act, 1988, as amended by the Motor Vehicles (Amendment) Act, 2000, the law laid down by the Apex Court in **K.Jayachandra [(2019) 3 SCC 722]** and also Ext.P6 clarificatory communication dated 28.02.2019 issued by the Ministry of Road Transport and Highways, there is prohibition in the alteration of a motor vehicle, in any manner, including change of tyres of higher capacity. Sub-section (1) of Section 52 of the Motor Vehicles Act prohibits any structural alterations on the prototype approved body of a motor vehicle. In the instant case, in order to alter the vehicle as open body, the petitioner made structural alterations on the pressed steel body panels of Maruthi Wagon R car, which distribute throughout the structure the stress generated by the vehicle during motion. The structural alterations made by the petitioner on the pressed steel body panels of Maruthi Wagon R car, in violation W.P.(C) No. 18452 of 2019 -45- of the provisions under sub-rule (1) of Rule 52 of the Motor Vehicles Act, would result in the body shell of the vehicle, which acts as a load-bearing member, loosing its structural integrity and also the higher safety factor attached to a monocoque body. 32. In such circumstances, the 2[nd] respondent Assistant Motor Vehicle Inspector cannot be directed to release the vehicle in question to the petitioner, which is presently in the custody of the 3[rd] respondent Station House Officer, Kanhangad or to release the certificate of registration of that vehicle. Considering the nature of structural alterations made, the request made by the petitioner for restoration of the vehicle into its original position cannot also be permitted, since any such restoration of the body shell will reduce its strength to sustain comprehensive stress, tensile stress and crushing stress, which may directly affect the safety of the passengers. In that view of the matter, the petitioner is not entitled for the reliefs sought for in this writ petition and the writ petition is accordingly dismissed. It is made clear that this judgment will not stand in the W.P.(C) No. 18452 of 2019 -46- way of the 1[st] respondent considering any request made by the petitioner for replacing the entire body shell of the Maruthi Wagon R car covered by Ext.P1 certificate of registration and the 1[st] respondent considering that request in accordance with law, if there is no legal impediments. **Sd/-** **ANIL K.NARENDRAN JUDGE** das W.P.(C) No. 18452 of 2019 -47- ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE RC BOOK OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 13/06/2010.** **EXHIBIT P3 TRUE COPY OF THE CHARGE MEMO ISSUED BY THE 1ST RESPONDENT DATED 29/06/2016.** **EXHIBIT P4 TRUE COPY OF THE REPLY OF THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 05/07/2016.** **EXHIBIT P5** **TRUE COPY OF THE CHECK REPORT OF THE 2ND RESPONDENT DATED 26/04/2019.**