Sunilraj v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY,THE 22ND DAY OF FEBRUARY 2019/3RD PHALGUNA, 1940** ## **WP(C).No. 30346 of 2018** **PETITIONER:** **SUNILRAJ AGED 33 YEARS S/O.SASIDHARAN K, P.S.VILLA, PANTHAPLAVU, KARAKULAM.P.O., NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SMT.P.PARVATHY SRI.RAFEEK. V.K. SMT.SURYA P SHAJI SRI.VISHNU BHUVANENDRAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE REGIONAL TRANSPORT OFFICER, ENCHAKKAL-WESTFORT ROAD,PAZHAVANGADI,TRIVANDRUM-695011 3 THE SUB REGIONAL TRANSPORT OFFICER, 2ND FLOOR ALATHARA COMPLEX, NH 47,NEAR KRISHNA THEATRE, KAZHAKUTTAM,THIRUVANANTHAPURAM, KERALA 695582** - **4 THE ASSISTANT MOTOR VEHICLE INSPECTOR, THE SUB REGIONAL TRANSPORT OFFICE, 2ND FLOOR,ALATHARA COMPLEX, NH 47,NEAR KRISHNA THEATRE, KAZHAKUTTAM,THIRUVANANTHAPURAM KERALA 695582** W.P.(C)No.30346 of 2018 2 **5 THE CHAIRMAN AND MANAGING DIRECOTR, KERALA STATE ROAD TRANSPORT CORPORATION, HEAD OFFICE KSRTC OFFICE OF MANAGING DIRECTOR, TRANSPORT BHAVAN,FORT, TRIVANDRUM,KERALA PIN 695023** **SMT. SHEEJA C.S., SR.GOVERNMENT PLEADER SRI T.P.SAJAN, SC KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2019, THE COURT ON 22.02.2019, DELIVERED THE FOLLOWING:** W.P.(C)No.30346 of 2018 3 ## **“CR”** ## **JUDGMENT** The petitioner is the registered owner of a Mahindra Tourister vehicle, which has been registered as 'LMV Contract Carriage', vide Ext.P1 certificate of registration, with registration No.KL-24/A-9652, with a seating capacity of 11. In Ext.P2 certificate of insurance, the seating capacity of the vehicle is recorded as 11, including driver. In Ext.P3 contract carriage permit, which is valid for the period from 21.03.2014 to 20.03.2019, the maximum passenger capacity of the vehicle is recorded as 10. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] and the 3[rd] respondents, namely the Regional Transport Officer, Thiruvananthapuram and the Sub Regional Transport Officer, Kazhakuttam to release his vehicle bearing registration No.KL-24/A-9652; and a writ of mandamus commanding the 2[nd] and 3[rd] respondents to keep a check on the arbitrary and illegal seizure of contract carriage vehicles by its officers and also to verify and supervise the acts of the 4[th] respondent Assistant Motor Vehicle Inspector in the office of the 3[rd] respondent Sub Regional Transport Officer. W.P.(C)No.30346 of 2018 4 2. On 14.09.2018, when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions. 3. On 18.09.2018, when this writ petition came up for consideration, this Court passed the following order; “The learned Senior Government Pleader on instructions would submit that after intercepting the contract carriage, bearing Registration No.KL/24-A 9652, owned by the petitioner, the Assistant Motor Vehicle Inspector, Sub Regional Transport Officer, Kazhakuttam prepared a check report dated 07.09.2018 and the same has also been signed by the Inspector of Kerala State Road Transport Corporation, who was personally present at the time when the said vehicle was intercepted, while it was being used as a stage carriage. **2.** The learned Senior Government Pleader would submit that the driver of the petitioner's vehicle, one Jabbar Khan, refused to accept copy of the check report and he even refused to take the vehicle to the place suggested by the Assistant Motor Vehicle Inspector. The learned Senior Government Pleader would also submit that, the petitioner can collect a copy of the check report from the Sub Regional Transport Office, Kazhakuttam. The said submission is recorded. The learned Senior Government Pleader shall ensure that the counter affidavit of the 4[th] respondent is placed on record by 25.09.2018.” 4. Thereafter, on 25.09.2018, when this writ petition came up for further consideration, the learned Senior W.P.(C)No.30346 of 2018 5 Government Pleader, on instructions, submitted that the petitioner never approached the 2[nd] respondent for release of his contract carriage bearing registration No.KL-24/A-9652. The learned counsel for the petitioner submitted that, on 26.09.2018 itself the petitioner shall approach the 2[nd] respondent for release of his vehicle. The submission of the learned counsel that, the petitioner shall remit the fine, without prejudice to the contentions taken in this writ petition, was recorded. 5. A counter affidavit has been filed by the 4[th] respondent, opposing the reliefs sought for in this writ petition. The petitioner has also filed a reply affidavit. 6. On 03.12.2018, when this writ petition came up for consideration, the learned Senior Government Pleader was directed to make available for the perusal of this Court the materials in support of the averments in paragraph 6 of the counter affidavit filed by the 4[th] respondent. Pursuant to the said order, along with a memo dated 11.12.2018, nine check reports issued to the petitioner on various dates, in respect of his contract carriage bearing registration No.KL-24/A-9652, is placed on record. 7. Heard the learned counsel for the petitioner, the W.P.(C)No.30346 of 2018 6 learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned Standing Counsel for KSRTC, representing the 5[th] respondent. 8. The fact that the petitioner's vehicle bearing registration No.KL-24/A-9652 is a contract carriage, covered by Ext.P3 contract carriage permit, is not in dispute. As per Ext.P1 certificate of registration, the seating capacity of the vehicle is 11 (inclusive of driver) and as per Ext.P3 contract carriage permit, maximum passenger capacity is 10. 9. Clause (7) of Section 2 of the Motor Vehicles Act, 1988 (for brevity 'the MV Act') define 'contract carriage' to mean a motor vehicle, which carries a passenger or passengers for hire or reward and is engaged under contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum; on a time basis, whether or not with reference to any route or distance; or from one point to another, and in either case, without stopping to pick up and set down passengers not included in the contract anywhere during the journey, and includes a maxicab; and a motrcab W.P.(C)No.30346 of 2018 7 notwithstanding the separate fares are charged for its passengers. On the other hand, clause (40) of Section 2 of the MV Act define 'stage carriage' to mean a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for whole journey or stages of journey. 10. Chapter V of the MV Act deals with control of transport vehicles. Section 66 of the MV Act deals with necessity for permits. As per sub-section (1) of Section 66, no owner of a motor vehicle shall use or permit the use of vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. As per the first proviso to sub-section (1), a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of vehicle as a contract carriage. 11. Section 70 of the MV Act deals with application for W.P.(C)No.30346 of 2018 8 stage carriage permit; Section 71 deals with procedure of Regional Transport Authority in considering the application for stage carriage permit; and Section 72 deals with grant of state carriage permit with any one or more of the conditions enumerated in sub-section (2). On the other hand, Section 73 of the MV Act deals with application for contract carriage permit; and Section 74 deals with grant of contract carriage permit. Sub-section (2) of Section 74 deals with the conditions that may be attached by the Regional Transport Authority to a contract carriage permit. 12. In **Roshan Lal Gautham v. State of U.P. and others [AIR 1965 SC 991]** in the context of clause (3) of Section 2 of the Motor Vehicles Act, 1935, which define 'contract carriage' and clause (29) of Section 2 of the said Act, which define 'stage carriage' a Constitution Bench of the Apex Court held that, by clause (3) of Section 2, a contract carriage is defined as a motor vehicle which carries a passenger or passengers on hire or reward under a contract from one point to another without stopping to pick up or set down along the line of that route passengers not included in the contract. A stage carriage is defined by clause (29) of Section 2, as a motor vehicle carrying or adopted to carry passengers for hire W.P.(C)No.30346 of 2018 9 or reward at separate fares paid for the whole journey or for stages of the journey. The distinction between the two is that, the contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel. 13. In **V. Govindarajulu v. Regional Transport Officer [AIR 1986 AP 7]** the question that came up for consideration before a Full Bench of the Andhra Pradesh High Court was as follows; when is a 'contract carriage' as defined under clause (3) of Section 2 of the Motor Vehicles Act, 1939 said to have been used as a 'stage carriage' as defined under clause (29) of Section 2 of the said Act, in order to attract the levy and demand of the increased rate of tax for a stage carriage, as notified under Section 3 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963. While answering that question, the Full Bench considered the distinguishing features between a 'stage carriage' and a 'contract carriage', and held thus; W.P.(C)No.30346 of 2018 10 "It would be clear from a combined reading of the definition of 'contract carriage', 'stage carriage', 'permit', 'public service vehicle' and 'transport vehicle' that a contract carriage and stage carriage are public service vehicles used for the carriage of passengers for hire or reward. A contract carriage or a stage carriage can be used as a transport vehicle under a permit granted by the State or Regional Transport Authority. The permit is for the use of the transport vehicle as a contract carriage or as a stage carriage. Now the distinction between a contract carriage and a stage carriage is clearly drawn in the definition of 'contract carriage' under Section 2(3) and 'stage carriage' under Section 2(29) of the Act. The definition of 'contract carriage' is plain and the language not too elastic and wide so as to bring within its sweep a situation never intended by the Legislature. A transport vehicle is a contract carriage when the vehicle as a whole is hired for a fixed or agreed sum under a contract express or implied by a passenger or passengers from one point to another or on a time basis whether or not with reference to any route, and in either case without stopping to pick up or set down along the line of route passengers not included in the contract. On the other hand, in the case of a stage carriage a transport vehicle is not hired as a whole and only separate fares are collected from individual passengers either for the whole journey or for stages of the journey and the restrictions relating to a contract carriage use of the vehicle as a whole for a fixed sum and the journey between two points without a right to pick up passengers on route or set down passengers are not there.” (underline supplied) W.P.(C)No.30346 of 2018 11 ## 14. In **State of Andhra Pradesh v. Noorulla Khan** **[(2004) 6 SCC 194]** , in the context of clause (7) of Section 2 of the Motor Vehicles Act, 1988 and clause (40) of Section 2 of the said Act, the Apex Court held that, the distinction between a stage carriage permit or a contract carriage permit as envisaged by the Legislature has to be maintained as the two types of permits are intended to meet different requirements. The contract carriages are for those who want to hire the vehicle collectively or individually for a group or a party for their transport to a destination/destinations. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the contract. There has to be only one contract for carrying the passengers mentioned in the contract from one destination to another. An agent or a group of persons/individuals cannot hire a public service vehicle for going from one place to another with passengers having different purposes. If such a construction is put then there would be no distinction between stage carriage or contract carriage permits. If contract carriage permit holder is permitted to pick up individual or a few of them from the starting point of journey and drop them at the last terminus of the route it would virtually be a Stage Carriage with corridor restriction. Stage carriage is intended to meet the W.P.(C)No.30346 of 2018 12 requirements of the general public travelling from one destination to another having different purposes, whereas a contract carriage is meant for those who want to hire a public service vehicle as a whole collectively for their transport from one destination to another having the same purpose. 15. The fundamental difference between a 'contract carriage' and a 'stage carriage' is that in the former there is a prior contract by the passenger or passengers for that carriage to be used as a whole for a fixed or agreed sum, while in the latter there is absence of such a prior contract and the passengers can board that carriage en route in individual capacity and pay the fare for the distance they travel. Therefore, if a 'contract carriage', which is granted permit under Section 74 of the Motor Vehicles Act, 1988 is operated as a 'stage carriage', which requires grant of stage carriage permit under Section 72 of the said Act, it will amount to contravention of permit conditions. 16. In the writ petition, the case of the petitioner is that his contract carriage bearing registration No.KL-24/A-9652, which was driven by his driver Javadkhan was intercepted by the 4[th] respondent Assistant Motor Vehicle Inspector and others, while the vehicle was returning to Vattapara after a W.P.(C)No.30346 of 2018 13 trip. Though the driver had shown all the records pertaining to the vehicle, the 4[th] respondent arbitrarily seized the vehicle. At the time of seizure there was no passenger in the vehicle other than the driver and the cleaner. 17. In the counter affidavit filed by the 4[th] respondent, it is averred that, when the said respondent was on duty with the squad on 07.09.2018, the petitioner's contract carriage was found proceeding from Kesavadasapuram to Vembayam, picking up and dropping passengers at different places. It was also noticed that one person, who was standing in the door step, was collecting individual fares from the passengers while they were getting down. Therefore, the vehicle was intercepted at Kanakkode, a place near Vembayam. 14 passengers were found travelling in the vehicle and on enquiry the passengers informed that they were going to Vembayam giving individual fares. Since it is an illegal stage carriage operation, the 4[th] respondent prepared Ext.R4(b) check report dated 07.09.2018. By that time, one person who claimed to be the registered owner of the vehicle came there. However, he refused to sign the check report. The driver of the vehicle Javadkhan, who is the holder of driving licence No.21/104126/1997, also refused to sign the check report or W.P.(C)No.30346 of 2018 14 to accept it. In such circumstances, the check report was got signed by Rejikumar R., a KSRTC official and Shri.Bijesh B. Nair, a Civil Police Officer, as witnesses. As the driver refused to take the vehicle, which was seized under Section 207 of the Motor Vehicles Act, the 4[th] respondent drew the vehicle to Peroorkada depot of KSRTC and handed over the same to KSRTC authorities, for safe custody, as per the existing directions, and these facts are mentioned in Ext.R4(b) check report. In the counter affidavit, it has also been stated that, six check reports have already been disposed of in the Sub Regional Transport Office, Nedumangad against the petitioner's contract carriage, prepared by different officers, for the very same offence. 3 more check reports are pending, including Ext.R4(b). In the counter affidavit it has also been stated that, the registered owner of the vehicle has not applied for release of the vehicle since he has to clear all pending check reports for getting the vehicle released. 18. The petitioner has filed a reply affidavit, denying the allegations in the counter affidavit filed by the 4[th] respondent, in which it is contended that there is no pending check reports with respect to the petitioner's contract carriage and there is no suppression of facts in the writ petition. W.P.(C)No.30346 of 2018 15 19. On 11.02.2019, the learned Senior Government Pleader sought time to produce the check reports in respect of the petitioner's contract carriage. 20. The check reports, 9 in number, are placed on record along with a memo dated 11.12.2018 filed by the learned Senior Government Pleader. Check report dated 19.09.2015 issued by Assistant Motor Vehicle Inspector in the Regional Transport Office, Thiruvananthapuram is for unauthorised stage carriage operation after collecting individual fare from the passengers. The petitioner compounded the said offence by remitting a sum of Rs.9,500/on 25.07.2016. Check report dated 12.07.2016 issued by Motor Vehicle Inspector in the Regional Transport Office, Attingal is for unauthorised stage carriage operation, which the petitioner compounded by remitting a sum of Rs.4,000/- on 30.01.2017. Check report dated 26.08.2016 issued by the Officer in the Regional Transport Office, Nationalized Sector, Thiruvananthapuram is for unauthorised stage carriage operation, which the petitioner compounded by remitting a sum of Rs.4,000/- on 30.01.2017. Check report dated 16.02.2017 issued by Assistant Motor Vehicle Inspector in the Regional Transport Office, Thiruvananthapuram is for W.P.(C)No.30346 of 2018 16 unauthorised stage carriage operation. Check report dated 03.07.2017 issued by Assistant Motor Vehicle Inspector in the Sub Regional Transport Office, Kazhakuttam is for unauthorised stage carriage operation. Check report dated 13.03.2018 issued by Assistant Motor Vehicle Inspector in the Regional Transport Office, Thiruvananthapuram is for unauthorised stage carriage operation. Check report dated 26.03.2018 issued by Assistant Motor Vehicle Inspector in the Regional Transport Office, Thiruvananthapuram is for unauthorised stage carriage operation, which the petitioner compounded by remitting a sum of Rs.5,000/- on 29.06.2018. Check report dated 07.09.2018 issued by Assistant Motor Vehicle Inspector in the Regional Transport Office, Kazhakuttam is for unauthorised stage carriage operation, which the petitioner compounded by remitting a sum of Rs.3,500/- on 24.09.2018. 21. Sub-section (1) of Section 192A of the Motor Vehicles Act, 1988 provides that, whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions under sub-section (1) of Section 66 or in contravention of any conditions of permit relating to the route on which or the area in which or the W.P.(C)No.30346 of 2018 17 purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year, but shall not be less than 3 months or with fine, which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both. As per the proviso to sub-section (1), the Court may, for reasons to be recorded, impose a lesser punishment. 22. In **Hardev Motor Transport v. State of Madhya Pradesh 2006 (8) SCC 613** , the Apex Court after referring to the provisions of Sections 66, 74 and 192A of the Motor Vehicles Act, 1988, observed that the 1988 Act contains penal provision for violation of the provisions of the said Act and/or violating the terms and conditions of the permit. 23. The materials placed on record along with the memo filed by the learned Senior Government Pleader would make it explicitly clear that, as stated in the counter affidavit filed by the 4[th] respondent, the petitioner's contract carriage has already been intercepted on different occasions and check reports were issued by different officers, for illegal stage carriage operation, by picking up and dropping passengers W.P.(C)No.30346 of 2018 18 from each and every bus stop and collecting individual fares. Some of those check reports would show that the driver employed by the petitioner refused to obey the directions of the officers concerned and even refused to sign the check reports. It is suppressing the aforesaid material facts that the petitioner has filed this writ petition, seeking interference of this Court and making allegations against the 4[th] respondent, who is an Assistant Motor Vehicle Inspector in the office of the 2[nd] respondent Sub Regional Transport Officer. The check reports other than Ext.R4(b) have been issued by officers other than the 4[th] respondent. At any rate, the conduct of the petitioner in filing this writ petition suppressing material facts has to be deprecated in the strongest terms and I do so. 24. In **Prestige Lights Limited v. State Bank of India [(2007) 8 SCC 449]** the Apex Court held that a prerogative remedy is not a matter of course. Therefore, in exercising extraordinary power, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger W.P.(C)No.30346 of 2018 19 public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the Writ Courts would become impossible. 25. In **Prestige Lights' case (supra)** the Apex Court held further that, under Article 226 of the Constitution of India, the High Court is exercising discretionary and extraordinary jurisdiction. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 26. The petitioner, who has been granted with Ext.P3 contract carriage permit, has absolutely no right to operate the said vehicle as stage carriage. Therefore, the respondents cannot be found fault with in intercepting his vehicle for contravention of permit conditions. W.P.(C)No.30346 of 2018 20 Having considered the submissions made by the learned counsel on both sides, this Court finds that, the petitioner is not entitled for any of the reliefs sought for in this writ petition. In the result, the writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** W.P.(C)No.30346 of 2018 21 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF VEHICLE BEARING REG NO KL-24-A-9652** **EXHIBIT P2 TRUE COPY OF CERTIFICATE OF INSURANCE ISSUED BY NEW INDIA ASSURANCE COMPANY LTD.** **EXHIBIT P3 TRUE COPY OF THE CONTRACT CARRIAGE PERMIT ISSUED BY THE MOTOR VEHICLE DEPARTMENT, GOVERNMENT OF KERALA.** **EXHIBIT P4 TRUE COPY OF THE TAX LICENCE ISSUED BY GOVT OF KERALAA** **EXHIBIT P5 TRUE COPY OF THE POLLUTION CERTIFICATE ISSUED BY GOVT OF KERALA.** - **EXHIBIT P6 TRUE COPY OF THE MARRIAGE INVITATIONS.** ## **RESPONDENTS' EXHIBITS:** **EXT.R4(A) TRUE COPY OF ORDER NO.E/2993/SZ/2014 DT.14.3.2017.** **EXT.R4(B) TRUE COPY OF CHECK REPORT.** **TRUE COPY** **P.A. TO JUDGE**