SUHAIL T. v. JOINT REGIONAL TRANSPORT OFFICER, TIRUR

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940** **WP(C).No. 24412 of 2018** ## **PETITIONER(S)** **SUHAIL T.** **S/O. ABDU RASAK, THADATHIL HOUSE, MARUTHINCHIRA, MARAKKARA POST, MALAPPURAM.** **BY ADV.SRI.I.DINESH MENON** ## **RESPONDENT(S):** **THE JOINT REGIONAL TRANSPORT OFFICER TIRUR-676101.** **BY Sr.GOVERNMENT PLEADER SRI.K.P.HARISH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 24412 of 2018 (B)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXT.P1. TRUE COPY OF THE SALE CERTIFICATE DATED 23-02-2018. EXT.P2. TRUE COPY OF THE TEMPORARY CERTIFICATE OF REGISTRATION DATED 24-02-2018. EXT.P3. TRUE COPY OF THE APPLICATION FOR REGISTRATION DATED 23-02-2018. EXT.P4. TRUE COPY OF THE JUDGMENT IN WPC NO. 854/2017 DATED 22-3-2017.** - **EXT.P5. TRUE COPY OF THE JUDGMENT IN WP(C) NO.3738/2018 DATED 20-06-2018.** - **EXT.P6. TRUE COPY OF THE RC BOOK OF KL-55 Y 4218.** - **EXT.P7. TRUE COPY OF THE RC BOOK OF KL-55 Y 4227.** **//TRUE COPY//** **P.A.TO JUDGE** ## **ami/** ## **ANIL K.NARENDRAN, J.** **-----------------------------------------------** W.P.(C)No.24412 of 2018 **-----------------------------------------------** Dated this the 8[th] day of August, 2018 ## **J U D G M E N T** The petitioner, who purchased a chassis manufactured by TATA Motors for the purpose of building a LMV Stage Carriage, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondent Joint Regional Transport Officer, Tirur, to consider Ext.P3 application dated 23.2.2018 for permanent registration after inspecting the vehicle having Chassis No.MAT505221JFB02451 and Engine No.4SPCR11BRY607532, in the light of Ext.P4 judgment of this Court dated 22.3.2017 in W.P.(C)No.854/2017 and Ext.P5 judgment dated 20.6.2018 in W.P. (C)No.3738 of 2018, within a time frame to be fixed by this Court. 2. On 20.7.2018, when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions. 3. On 26.7.2018, when this writ petition came up for ## W.P.(C)No.24412 of 2018 :-2-: further consideration, along with W.P.(C)Nos.24327 of 2018 and 24353 of 2018, the learned counsel for the petitioner placed reliance on Exts.P6 and P7 registration particulars of stage carriages bearing registration Nos.KL-55/Y-4218 and KL-55/Y4227. The learned Senior Government Pleader sought time to get instructions and accordingly this writ petition along with connected matters were listed to 31.7.2018 for further consideration. 4. In the counter affidavit filed by the respondent in W.P. (C)No.24327 of 2018, it has been stated that the petitioner is yet to produce the vehicle for inspection before the respondent and that, before registering the vehicle under Section 39 of the Motor Vehicles Act, 1988, the respondent has to verify the documents, including prototype approval, and conduct physical inspection of the vehicle. In paragraph 5 of the said counter affidavit, the respondent has dealt with the registration granted to stage carriages bearing registration Nos.KL-55/Y-4218 and KL-55/Y4227, covered by Exts.P6 and P7 registration particulars. A reading of the said counter affidavit would show that the registration of those vehicles was done based on a letter issued W.P.(C)No.24412 of 2018 :-3-: by the manufacturer stating that, the model of the vehicle was existing as on 1.10.2014 and the approval certificate from ARAI. Apart from that, the owners of those vehicles have filed affidavits affirming that, if any further directions are issued by the Motor Vehicles Department or such authorities, they shall rebuild body as per such directions. 5. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondent. 6. Rule 125C of the Central Motor Vehicles Rules, 1989 deals with body building and approval. The said rule, which was inserted by the Central Motor Vehicles (4[th] Amendment) Rules, 2005, with effect from 16.09.2005, reads thus; “125C. Body building and approval.—(1) On a date to be notified, the testing and approval for body building of buses shall be in accordance with AIS:052:2001 as amended from time to time for vehicles mentioned therein, till the corresponding BIS specifications are notified under the Bureau of Indian Standards Act, 1986 (63 of 1986). (2) The testing and approval for the body building of school buses shall be in accordance with AIS:063:2005 as amended from time to time for vehicles mentioned therein, W.P.(C)No.24412 of 2018 :-4-: till the corresponding BIS specifications are notified under the Bureau of Indian Standards Act, 1986 (63 of 1986).” 7. Sub-rule (3) of Rule 125C was inserted as under, by the Central Motor Vehicles (3[rd] Amendment) Rules, 2012, with effect from 08.08.2012; “(3) With effect from such date as may be notified, the testing and approval for body building of goods vehicles of category N2 and N3 with respect to cabin, bodies, containers, tankers and details thereof shall be in accordance with AIS:093-2008, as amended from time to time, till the corresponding BIS specifications are notified under the Bureau of Indian Standards Act, 1986 (63 of 1986).” 8. Sub-rule (1) of Rule 125 C was substituted as under, by the the Central Motor Vehicles (4[th] Amendment) Rules, 2014, with effect from 22.04.2014; “(1) On and after the 1[st] day of October, 2014, the testing and approval for body building of new models of buses with seating capacity of 13 or more passengers excluding driver shall be in accordance with AIS:052 (Revision 1)-2008, as amended from time to time, for vehicles mentioned therein, till the corresponding BIS specifications are notified under the Bureau of Indian Standards Act, 1986 (63 of 1986): Provided that the provisions of this rule shall be applicable to the existing models of buses with seating capacity 13 or W.P.(C)No.24412 of 2018 :-5-: more passengers excluding driver on and after the 1[st] day of April, 2015.” 9. As per the 4[th] Amendment Rules, 2014 Form 22A appended to the Rules was also amended, whereby the body builder is required to certify that the body of the vehicle has been fabricated by them and the same complies with the provisions of the Motor Vehicles Act, 1988 and the rules made thereunder, i.e., the body built on the chassis conforms to body code in AIS:052 (Revision 1)-2008, as amended from time to time. 10. On 30.04.2015, in exercise of the powers conferred by Section 110 of the Act, the Central Government exempted the existing models of buses with seating capacity of 13 or more passengers excluding driver from the purview of sub-rule (1) of Rule 125C and Form 22A till upto 01.08.2015 or until further orders, whichever is earlier. The said exemption was later extended upto 01.04.2016 and 01.10.2016 respectively or until further orders, whichever is earlier, vide notifications dated 18.01.2016 and 02.05.2016 respectively. 11. Thereupon, the proviso to sub-rule (1) of Rule 125C was substituted as under, by the Central Motor Vehicles (12[th] W.P.(C)No.24412 of 2018 :-6-: ## Amendment) Rules, 2016, with effect from 20.09.2016; “Provided that the provision of this rule shall be implemented in two phases. In first phase, the provisions of AIS:052 (Rev.1)-2008, excluding the parameters and requirements given in TableI below, shall be applicable on and after 1[st] day of January, 2017. In second phase, the provisions of AIS:052 (Rev.1)-2008, as amended from time to time, and the parameters and requirements given in (Table-1) below, shall be applicable on and after 1[st] day of January, 2018. ## (Table-1) [Additional Technical Provisions of AIS:052 (Rev.1)] ” xxx xxx xxx 12. In **Vijayath O. v. Ministry of Road Transport and Highways and others** (Ext.P4 judgment dated 22.03.2017 in W.P.(C)No.854 of 2017 and connected cases) this Court held that, in the light of the proviso introduced to sub-rule (1) of Rule 125C by the Central Motor Vehicles (12[th] Amendment) Rules, 2016 the only inference possible is to hold that testing and approval for body building of models of buses introduced after 01.10.2014 shall be in accordance with the Body Code, excluding the parameters and requirements mentioned in the table below the ## W.P.(C)No.24412 of 2018 :-7-: proviso, on or after 01.01.2017, and shall be in accordance with the Body Code on or after 01.01.2018. In other words, the substantive provision contained in the proviso to sub-rule (1) of Rule 125C as introduced by virtue of the Central Motor Vehicles (4[th] Amendment) Rules, 2014 making the Body Code applicable to the models of buses existing as on 01.10.2014 has been taken away. Not only that, even for the models of buses introduced after 01.10.2014, the Body Code is made applicable only with effect from 01.01.2017 and 01.01.2018 respectively, as indicated in the proviso to the said sub-rule. 13. In **Vijayath's case (supra)** , dealing with the contention that Body Code does not apply to models of vehicles introduced by the manufactures concerned prior to 01.10.2014, this Court held that, Rule 125C of the Central Motor Vehicles Rules applies only to new types of vehicles manufactured after 01.10.2014, after obtaining prototype approval under Rule 126, subject to the provisions contained in the proviso. 14. Following the judgment in **Vijayath'** s case (supra), this Court in **Abdul Gafoor K.K. v. Union of India and another** (Ext.P5 judgment dated 20.6.2018 in W.P.(C)No.3738 of 2018 and W.P.(C)No.24412 of 2018 :-8-: ## connected cases) held as follows; “Having considered the contentions and having perused the judgment of the learned single Judge in W.P.(C).No.854 of 2017 and connected cases and of the Division Bench in W.A.No.2336 of 2017 and connected cases, I am of the opinion that the issue with regard to registration of the vehicles involved in these writ petitions has to be considered on specific examination as to whether the vehicles of the petitioners were models which were existing as on 01.10.2014. In case the petitioners are unable to produce evidence with regard to prototype approval of the vehicles in question, the respondents are free to make an examination as to whether the vehicles are models which were in existence as on 01.10.2014 and to pass orders on the same. In W.P.(C)No.4040 of 2018 Exhibit.P16 series of documents by which the petitioner contended that identical model vehicles had been registered till 30.09.2017 shall also be taken into consideration. Orders in this regard shall be passed by the respondents after examining the material as to the model of the vehicle as contended by the petitioner within a period of one month from the date of receipt of a copy of this judgment.” 15. In W.P.(C)No.33662 of 2017, following Ext.P5 judgment of this Court in W.P.(C)No.3738 of 2018, an interim order was granted to the effect that the Registering Authority shall grant registration to the petitioner's vehicle subject to the result of that W.P.(C)No.24412 of 2018 :-9-: writ petition. That interim order was under challenge before the Division Bench of this Court in W.A.No.2336 of 2017. The said writ appeal was disposed of by judgment dated 23.11.2017. Paragraphs 5 and 6 of the said judgment read thus; “5. According to the learned counsel for the first respondent, his vehicle being one introduced prior to the date mentioned above, the provisions of Rule 125C cannot be pressed into service. It is contended that Ext.P8 judgment having not been appealed against by the appellants, the first respondent is entitled to the benefit thereof. 6. We do find force in the contention of the learned counsel for the first respondent/writ petitioner. However, he can claim the benefit of Ext.P8 judgment only after satisfying the appellant that the model of his vehicle was existing as on 01.10.2014. In such a situation, we cannot say that the learned single Judge committed any illegality in ordering registration of the vehicle, subject to the result of the writ petition.” 16. W.P.(C)No.33662 of 2017 was thereafter disposed of by the judgment dated 19.12.2017 and the operative portion of that judgment reads thus; “In terms of the judgment dated 23.11.2017 in W.A.No.2336/2017, this writ petition is disposed of by holding that if the petitioner satisfies the 2[nd] respondent Registering Authority that the model of his vehicle was an existing one as on 1.10.2014, the same shall be dealt with and appropriate W.P.(C)No.24412 of 2018 :-10-: orders shall be passed on Ext.P6 application without insisting for compliance of Rule 125(C) of the Central Motor Vehicles Rules. The decision in this regard shall be taken, as expeditiously as possible, at any rate within a period of one month from the date of receipt of a certified copy of this judgment.” 17. Rule 126 of the Central Motor Vehicles Rules, substituted by the Central Motor Vehicles (Amendment) Rules, 1993, with effect from 26.03.1993, requires every manufacturer or importer of motor vehicles including trailers, semi-trailers and modular hydraulic trailer to submit the prototype of the vehicle to be manufactured or imported by him for test by the Vehicle Research and Development Establishment of the Ministry of Defence, Government of India or the Automotive Research Association of India, Pune or such other agencies as may be specified by the Central Government, for granting a certificate by that agency as to the compliance of provisions of the Act and the Rules. The first proviso to Rule 126 provides that the procedure for type approval and certification of motor vehicles for compliance to the rules shall be in accordance with AIS:0172000, as amended from time to time. The second proviso to Rule W.P.(C)No.24412 of 2018 :-11-: 126 provides further that, in respect to the vehicles imported into India as completely built units (CBU), the importer shall submit a vehicle of that particular model and type to the testing agencies for granting a certificate by that agency as to the compliance to the provision of the Act and the Rules. 18. The Automotive Industry Standard Committee (AISC) constituted by the Ministry of Surface Transport has prepared the standards for type approval and certification of vehicles for compliance of the Central Motor Vehicles Rules, with the approval of Central Motor Vehicles Rules Technical Standing Committee (CTSC). The Automotive Research Association of India (ARAI), Pune, which is the secretariat of AISC, has published the standard as AIS:017-2000, which describes the procedure to be followed for evaluating the vehicle model and its variants for the issuance of a Certificate of Compliance, as notified by Rule 126 of the Central Motor Vehicles Rules. 19. Paras.2.1 and 2.2 of AIS:017-2000, which define 'model' and 'variant' read thus; “2.1 Model means vehicles of one family with essentially same aspects of construction and design, which is of the W.P.(C)No.24412 of 2018 **==> picture [27 x 10] intentionally omitted <==** same category, and has the same number of axles. The vehicle manufacturer designates a model. A model may include variant(s). 2.2 Variant is a type of vehicle, which has technical specifications differing from that of a model, in any respects, other than those given in 2.1. Variant(s) may have different commercial names. A variant shall need a type approval. (See Para 7.1)” 20. As per Para.2.4 of AIS:017-2000, Type Approval (TA) is the establishment of initial compliance of a model/variant(s) to the provisions of Central Motor Vehicles Rules. Para.7.0, which deals with extension of Type Approval, provides that Type Approval already granted shall need revalidation, by an extension of the Type Approval whenever the technical specifications, already attested by Testing Agency are amended by the manufacturer or whenever there are changes in the provisions. Paras.7.1.1 to 7.1.5 deal with the procedure to be followed in the case of changes in the technical specifications of the model/ variant(s) already Type Approved and Para.7.2 deals with changes in provisions. Paras.7.2.1 to 7.2.3 deal with the procedure to be followed in a case where testing is required for establishing compliance and Para.8.0 deals with the issuance of W.P.(C)No.24412 of 2018 :-13-: Extension of Type Approval. 21. BS-IV emission standards have been made applicable to all four wheeled vehicles coming under 'M' and 'N' categories in the State of Kerala with effect from 01.04.2016. A model/variant of four wheeled vehicle coming under 'M' and 'N' categories, meeting BS-IV emission standards, introduced by a vehicle manufacturer, in order to meet the Mass Emission Standards prescribed under sub-rule (15) of Rule 115 of the Central Motor Vehicles Rules, which came into force in the State with effect from 01.04.2016, requires Type Approval/Extension of Type Approval, since the technical specifications of a vehicle meeting BSIV emission standards are different from one meeting BSIII emission standards. In the instant case, admittedly, the vehicle purchased by the petitioner meets BSIV emission standards. 22. A reading of the provisions of the Motor Vehicles Act and the Central Motor Vehicles Rules referred to hereinbefore and also the law laid down by this Court in the decisions referred to supra, would make it explicitly clear that, the benefit of Ext.P4 judgment in W.P.(C)No.854 of 2017 and connected cases can be W.P.(C)No.24412 of 2018 :-14-: extended only after the registering authority satisfying that the model of the vehicle produced for registration was in existence as on 1.10.2014. Such fact has to be established, with reference to the prototype approval/extension of approval granted by ARAI or any other competent authority; and not based on any communication issued by the manufacturer or the registration granted to identical model of vehicles on the strength of any such communication issued by the manufacturer or affidavit of the owner of such vehicles affirming that, if any further directions are issued by the Motor Vehicles Department or such authorities, they shall rebuild body as per that directions. In such circumstances, this writ petition is disposed of with the following directions; (i) Within two weeks from the date of receipt of a certified copy of this judgment, the petitioner shall produce the vehicle covered by Ext.P1 sale certificate and Ext.P3 application for registration dated 23.2.2018, before the respondent along with the prototype approval/ extension of approval granted by ARAI or any other competent authority to show that the model of the vehicle W.P.(C)No.24412 of 2018 :-15-: produced is an existing model as on 1.10.2014. (ii) On production of vehicle and other supporting materials, the respondent shall conduct inspection of that vehicle and thereafter, pass appropriate orders on Ext.P3 application for registration, taking note of the law laid down as above, as expeditiously as possible, at any rate, within a period of three weeks from the date of production of the vehicle. (iii) The decision so taken shall be communicated to the petitioner, without any delay. Sd/- **ANIL K.NARENDRAN JUDGE** ami/8.8.18 //True copy// P.A.to Judge