The Managing Director, M/s Day Fresh Bakes and Foods Private Limited v. The State of Kerala and Regional Transport Officer, North Paravur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 29TH DAY OF AUGUST 2018 / 7TH BHADRA, 1940 WP(C).No. 23723 of 2018 ## **PETITIONER** THE MANAGING DIRECTOR, M/S.DAY FRESH BAKES AND FOODS PRIVATE LIMITED, KOTTAYILKOVILAKOM,CHENNAMANGALAM,ERNAKULAM-683512. REPRESENTED BY ITS MANAGING DIRECTOR, SHAMEENA MUNSAR, AGED 37 YEARS,RESIDING AT MULLASSERY ARAVASALA P.O., KAIPAMANGALAM,PIN-680 681. BY ADV.SMT.O.H.NAZEEBA ## **RESPONDENTS:** 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY,DEPARTMENT OF TRANSPORT, STATE SECRETARIAT,THIRUVANANTHAPURAM-695 001. 2. THE REGIONAL TRANSPORT OFFICER, NORTH PARAVUR-683 513. ERNAKULAM DISTRICT. BY SR. GOVERNMENT PLEADER SRI K.P.HARISH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-08-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.23723 of 2018 2 ## **J U D G M E N T** The petitioner, who is the Managing Director of M/s.Day Fresh Bakes and Foods Private Limited, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to issue goods carriage permit to her vehicle bearing Registration No.KL-42/P-3229 within a time limit to be fixed by this Court. 2. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 3. The petitioner is the registered owner of LMV Goods Carriage (open body) bearing Registration No.KL42/P-3229, covered by Ext.P1 certificate of registration. She submitted Ext.P2 application dated 20.03.2018 before the 2[nd] respondent Regional Transport Officer to erect a closed food container on the said vehicle for the purpose of distribution of bakery products. The 2[nd] respondent vide endorsement dated 24.03.2018 made on Ext.P2 application, allowed the petitioner to alter the body as covered. Now, the grievance of the petitioner is that though the petitioner produced the said vehicle with W.P.(C).No.23723 of 2018 3 covered body, the 2[nd] respondent has not granted permit on the ground that instead of metal body, the vehicle should be covered with tarpaulin. It is in such circumstance that the petitioner has approached this Court seeking appropriate reliefs. ## 4. In _**Merry Time Cream Food Pvt. Ltd v. Additional**_ _**Registering Authority [2018 (2) KLT 236]**_ , this Court held that what is contemplated under the provisions of the Motor Vehicles Act and the Rules made thereunder is that the body can be built on a chassis in compliance with the provisions of the Motor Vehicles Act and the Rules framed thereunder and the safety of such vehicle and its roadworthiness, 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. Paragraphs 28 and 29 of the said decision read thus : W.P.(C).No.23723 of 2018 4 _“28. In_ _**Jayachandran v. Regional Transport Officer [2012 (4) KLT 729]** a Division Bench of this Court, in the context of Section 52 of the MV Act, Rule 126 of the CMV Rules and Rule 96 of the KMV Rules, held that Rule 26 of the CMV 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 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 CMV Rules, which prescribes the overall dimensions of the motor vehicles. Rule 93 of CMV Rules 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 MV Act also provides for alteration with respect to motor vehicles, however, with due approval by the registering authority. Rule 96 of the KMV 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_ W.P.(C).No.23723 of 2018 5 _registering authority; when presented for registration, the inspecting authority shall prepare and issue a measurement certificate in Form MC. Such measurement certificate shall 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._ _29. In_ _**Jayachandran's case (supra)** , the Division Bench held further that, sub-rule (2) of Rule 96 of KMV Rules speaks of the inspection and mandates a comparative scrutiny of the particulars contained in the application, with the physical features of the vehicle, and for ascertaining its fitness for use in public place. The proviso specifically enumerates the procedure of inspection with respect to a transport vehicle of which the body is not factory-built or stereo-typed pattern previously approved by the registering authority. The proviso mandates the measurement certificate to be forwarded to the registering authority, which is also insisted upon by sub-rule (2) of Rule 103. Rule 103 also provides for ascertaining the suitability of alteration by the registering authority itself; if found necessary. The stipulation in Rule 261 also is to make sound_ W.P.(C).No.23723 of 2018 6 _and secure construction of the vehicle, in accordance with the specifications, if any, laid down by the State or Regional Transport Authorities. 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 body builder. 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 MV 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 CMV Rules.”_ 5. The learned Senior Government Pleader on instructions would submit that if the petitioner is producing the vehicle bearing Registration No.KL-42/P3229 before the 2[nd] respondent Regional Transport Officer, the said respondent shall conduct an inspection of the vehicle, taking note of the law laid down by this Court in _**Merry Time Cream Foods Pvt. Ltd.'s case (supra)**_ W.P.(C).No.23723 of 2018 7 and thereafter consider the application made by the petitioner for grant of goods carriage permit. In such circumstances, this writ petition is disposed of with the following directions : - i) Within ten days from the date of receipt of - a certified copy of this judgment, the petitioner shall produce her vehicle bearing registration No.KL-42/P-3229 before the 2[nd] respondent for inspection. - ii) On such production, the 2[nd] respondent shall conduct inspection of the vehicle as to its roadworthiness, taking note of the law laid down by this Court in _**Merry Time Cream Foods**_ - _**Pvt. Ltd.'s case (supra),**_ and thereafter consider the application made by the petitioner for goods carriage permit. - iii) The 2[nd] respondent shall pass necessary - orders on the request made by the petitioner, as expeditiously as possible, at any rate, within a period of three weeks from the date of production of the vehicle. ## **Sd/ANIL K.NARENDRAN JUDGE** AV/4/9 W.P.(C).No.23723 of 2018 8 APPENDIX ## PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE BEARING REGISTRATION NO.KL 42 P 3229. EXT.P2: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 20/3/2018. EXT.P3: TRUE COPY OF THE PHOTOGRAPH OF THE VEHICLE. EXT.P4: TRUE COPY OF THE CERTIFICATE ISSUED BY AI-SAFA ELECTRONIC WEIGHBRIDGE DATED 29/6/2018. RESPONDENTS' EXTS: NIL TRUE COPY P.S. TO JUDGE dsn