WP(C) Nos. 19506/2022 & 19533/2022: Vineesh M.V. vs State of Kerala & Others; Sakeer Hussain K.M. vs State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944`** ## **`WP(C) NO. 19506 OF 2022`** ## **`PETITIONERS:`** ``` 1VINEESH M.V., AGED 39 YEARS, S/O.VIJAYAN M.R., MUTHIRAPARAMBIL HOUSE, PAINGARAPPILLY P.O., MULAMTHURUTHY, ERNAKULAM DISTRICT, PIN – 682314 2AMAL GEORGE, AGED 36 YEARS, S/O.GEORGE M.V., MANAKKAKUDIYIL HOUSE, VADAYAMPADI, ERNAKULAM DISTRICT PIN – 682308 3SIYAS PAREED, AGED 35 YEARS, S/O.PAREED, KOYAMPARAMBIL HOUSE, PERINGALA P.O., KUNNATHUNADU, ERNAKULAM DISTRICT PIN – 683565 BY ADVS. BABU S. NAIR SMITHA BABU P.A.RAJESH SHAMSEERA. C.ASHRAF R.B.RAJESH JINU ANTONY ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN – 695001 2THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM, PIN – 682030 ``` ``` WP(C) NO. 19506 OF 2022 -2- ``` - `3 THE DISTRICT POLICE CHIEF, KOCHI CITY, ERNAKULAM, ERNAKULAM DISTRICT, PIN – 682031` - `4 THE DISTRICT POLICE CHIEF, ALUVA RURAL, ERNAKULAM DISTRICT, PIN – 683101` - `5 THE REGIONAL TRANSPORT OFFICER (ENFORCEMENT), REGIONAL TRANSPORT OFFICE, KAKKANAD, ERNAKULAM DISTRICT, PIN – 682030` - `6 THE REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, MOOVATTUPUZHA, ERNAKULAM DISTRICT, PIN – 686661` - `BY ADV. SRI.P.SANTHOSH KUMAR, SPECIAL GOVERNMENT PLEADER` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON 07.07.2022 DELIVERED THE FOLLOWING: ``` WPC.19506/22&19533/22 3 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944 WP(C) NO. 19533 OF 2022 ``` ## **`PETITIONERS:`** ``` 1SAKEER HUSSAIN K.M., AGED 41 YEARS, S/O.MUHAMMED, KAITHAVALAPPIL HOUSE, CHANTHIROOR P.O., CHERTHALA, ALAPPUZHA DISTRICT, PIN – 688547 2SHAJI T.S., AGED 47 YEARS, S/O.SHAMSUDHEEN, THANATT HOUSE, THURAVOOR P.O., CHERTHALA, ALAPPUZHA DISTRICT, PIN – 688532 3PREETHI A.C., AGED 42 YEARS, W/O.SIJIMON S., 'NANDANAM', KODAMTHURUTHY, KUTHIYATHODU P.O., ALAPPUZHA DISTRICT, PIN – 688533 BY ADVS. BABU S. NAIR SMITHA BABU ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN – 695001 ``` - `2 THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA,` WPC.19506/22&19533/22 4 ``` ALAPPUZHA, PIN – 688001 ``` - `3 THE DISTRICT POLICE CHIEF, DISTRICT POLICE OFFICE, CCSB ROAD, CIVIL STATION WARD, ALAPPUZHA, ALAPPUZHA DISTRICT, PIN – 688012` - `4 THE REGIONAL TRANSPORT OFFICER (ENFORCEMENT), REGIONAL TRANSPORT OFFICE , ALAPPUZHA, ALAPPUZHA DISTRICT, PIN – 688001` ``` BY ADV. SRI.P.SANTHOSH KUMAR, SPECIAL GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON 07.07.2022 DELIVERED THE FOLLOWING: ``` WPC.19506/22&19533/22 5 ## **`JUDGMENT`** This order of mine shall dispose of two writ petitions preferred by two different sets of petitioners challenging an identical notification of the District Collector dated 25.06.2020 and 2.6.2022 restricting the timing of the tipper lorries/vehicles with tipping mechanism as per the provisions of Section 115 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short). Petitioners in both writ petitions are the owners of mini lorries or tipper lorries having carriage permits, equipped with an hydraulic device for unloading. 2. The contention of the petitioners is that Secretary to Government, State of Kerala has passed an order dated 15.12.2012 based upon the directions of this Court restricting the movement of vehicles equipped with tipping mechanism all over Kerala during the time period from 8 a.m. to 10 a.m. and from 3p.m. to 5p.m. Provisions of Section 115 of the Act empowers the State Government or any authority authorized in this behalf by WPC.19506/22&19533/22 6 the State Government, if satisfied to restrict the use of the vehicle. It is clear that the order has to be on the basis of public interest or public safety or convenience considering the nature of road or bridge prohibitions or restrictions. Therefore, there cannot be any general order passed throughout a District or throughout a State. Section 138 of the Act authorizes the State Government to make rules for the purpose of carrying into effect the provisions under Chapter VIII, accordingly, Kerala Motor Vehicles Rules were enacted in 1989. As per the said Rule for carrying out the effect the provisions under Section 115 of the main Act, the power vested with the authority is either the State or the Regional Transport authority and not the District Collector. 3. Mr.Babu S.Nair, learned counsel appearing on behalf of the petitioners submitted that the vehicles of the petitioners are mainly used for carrying construction materials and it can be operated only during day time. None of the petitioners are operating their vehicles WPC.19506/22&19533/22 7 during the night time and the restriction of operation of three hours during day time is totally without logic and reasoning, which put the petitioners into manifest injustice in the hike fuel price, road tax etc. Such decisions have resulted into infringement of the fundamental rights guaranteed to the petitioners under Articles 14, 19(1)(g) and 21 of the Constitution of India. 4. On the other hand, Mr.P.Santhosh Kumar, learned Special Government Pleader appearing on behalf of the respondents submits that the expression 'state or authorized authority' used in Section 115 of the Act read with Rule 339 of the Kerala Motor Vehicles Rules leaves no manner of doubt that the Government can authorise the person competent to issue notification by restricting the movement of the tippers. Same type of notification was issued way back in 2014 and now on 05.06.2018 whereby the Government had authorised the District Collector, Pathanamthitta to extend the restriction on timing of tipper lorries from 8.30 a.m to 10 a.m and from WPC.19506/22&19533/22 8 3 p.m. to 4.30 p.m. for the safety of the school/college children in Thiruvalla Municipality as the School/college hours are from 9 a.m. to 3.30 p.m. Orders have been passed in the same lines at earlier point of time also, but it has now been changed though the previous orders on the same lines and had been in existence for a period of more than seven and half years. 5. I have heard learned counsel for the parties and appraised the paper books and there is no force or merit in the writ petitions. 6. Counsel for the petitioner relied upon the judgment of the Patna High Court in **JSP Projects Private Limited vs. The Union of India** (CWJC No.4310/2021 dated 25.4.2022) to contend that Chapter VIII of the Motor Vehicles Act gives the State authority different kinds of powers to effectively implement policies and protect their roads. The State Government has the power of regulating traffic, restricting entry of certain vehicles at a particular place. Since rule making WPC.19506/22&19533/22 9 power is not confined to the subject of goods, the Government can frame rules for the prevention of danger, injury or annoyance to the public or any person, or of danger or injury to the property or of obstruction to traffic. Section 113 of the Act allows the State Government to prescribe the conditions for issuing permits for transport vehicles by the State or Regional Transport Authorities. It can also prohibit the use of such vehicles in any area or route. Paragraphs 70, 72 and 74 of the judgment reads thus: “70. The very Chapter VIII under which Section 115 was https://morth.nic.in/sites/default/files/circulars_document /Advisory_regarding_revision_of_safe_axle_1.pdf Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 invoked gives the State Authorities different kinds of power to effectively implement policies and protect their roads. Section 112 (2) gives the State Government the authority to restrict motor vehicle speed in the interest of public safety, considering the nature of the road or bridge. Section 113 empowers the State Government to prescribe conditions for the issue of permits by the State/ Regional Transport Authorities for transport vehicles and to restrict the use of such vehicles on any area or route etc. Section 114 empowers the Motor Vehicle Department or any other person authorized by the State Government to weigh a vehicle within specific parameters as prescribed. The State Government has the power of regulating traffic restricting entry of certain vehicles at a particular place. But did the State do so? No. Why not so? No explanation is forthcoming. 72. Rule making power is not confined to the subject of goods, though under clause (i) to sub-section (2) of Section 138 of MV WPC.19506/22&19533/22 10 Act, the Government may frame rules generally for the prevention of danger, injury or annoyance to the public or any person, or of danger or injury to the property or of obstruction to traffic. We notice that Chapter VIII, which Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 generally deals with traffic control, also enables the State Government to frame rules (Section 138) in the interest of road safety to regulate certain activities. Significantly, Section 113 of the Act allows the State Government to prescribe the conditions for issuing permits for transport vehicles by the State or Regional Transport Authorities. It may also prohibit the use of such vehicles in any area or route. 74. Elaborating further, Section 115 enables the State Government upon its satisfaction and necessity arising out of interest of public safety and convenience of plying of the vehicle on any road or bridge. The power to prohibit or restrict, subject to such exception and conditions, is regarding- (a) driving of a motor vehicle; (b) of any specified class; (c) description; (d) use of trailer; (e) in any specified area or specified road. The power to restrict and prohibit, in our considered view, is specific only to a motor vehicle, be it of whatever description, but not goods carried by such vehicle. That power rests only with the State Government/Regional Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 Transport Authority issuing the permit for carriage of goods. The Transport Authority, a creation of the Statute, is an authority independent of the State. Hence, in our considered view, the impugned action is totally contrary to the law and is not sustainable in law.” 7. In the facts and circumstances, Government cannot impose restriction and regulation with regard to the movement of motor vehicles. Here restriction is with regard to the movement of tipper lorries. The facts and circumstances of the judgment cited supra and the WPC.19506/22&19533/22 11 instant case are not similar and therefore cannot be applicable to this case. 8. For the sake of brevity, Section 115 of the Act and Rule 339 of the Motor Vehicle Rules read thus: “ **115. Power to restrict use of vehicles -** The State government or any authority authorized in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience or because of the nature of any road or bridge may by notification in the official gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notifications, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under Section 116 at suitable places. Provided that where any prohibition or restriction under this section is to remain in force, for not more than 1 month, notification thereof, in the official gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction. WPC.19506/22&19533/22 12 ## **339. Authority to restrict the use of motor vehicles:** The State or Regional Transport Authority shall be competent to prohibit or restrict the use of motor vehicles under the provisions of Section 115 of the Act provided that in the case of any prohibition or restriction deemed necessary solely due to the deteriorated condition of any road or bridge, any officer of the Public Works Department not below the rank of an Executive Engineer who is in charge of such road or bridge shall be competent to impose the prohibition or restrictions.” 9. The expression 'State Government or any authority authorised in this behalf by the State Government' is used in the Central Act i.e., Section 115 of the Act. The contention of the counsel in the first blush appeared to be attractive that as per Rule 339 it is only the State or the Regional Transport Authority. The said provision do not authorise the District Collector to issue such orders. But Rule 339 cannot be read in isolation has to be in conjunction with Section 115 of the Act which empowers the State Government to authorize WPC.19506/22&19533/22 13 any authority on behalf of the State Government. By virtue of the notification of the Government dated 05.06.2018, the District Collector was authorised to issue such type of directions. Relevant portion of the said notification reads as under: “As per the Government order read (1) above, movement of tipper lorries/vehicles using tipping mechanism were prohibited on the roads of the State of Kerala from 9 am to 10 am and from 4 pm to 5 pm. As per the letter read (2)nd above, the District Collector Pathanamthitta has requested to extend the restriction on timing of tipper lorries from 8.30 am to 10.00 am and from 3.00 pm to 4.30 pm for the safety of school/ college children in the Thiruvalla municipality, as the school/college hours are from 9 am to 3.30 pm. Government have examined the matter in detail and are pleased to entrust the District Collectors to determine transit time of tipper lorries / vehicles using tipping mechanism under Section 115 of the Motor Vehicles Act, 1988, take into account the safety of the school/ college children and the local situation in each place. If such restriction required for more than one month, a notification to this effect shall be WPC.19506/22&19533/22 14 published in the Official Gazette. Moreover, publicity shall be made at the local level regarding regulation.” 10. In this view of the matter I am of the view that there is no force or merit. The argument has no substance. The impugned decisions cannot be interfered by exercising the power of jurisdiction under Article 226 of the Constitution of India. Writ petitions are dismissed. Sd/- ``` AMIT RAWAL JUDGE ``` ``` vv ``` WPC.19506/22&19533/22 15 ## **`APPENDIX OF WP(C) 19506/2022`** ## **`PETITIONER EXHIBITS`** - `Exhibit P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE FIRST PETITIONER` - `Exhibit P2 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE SECOND PETITIONER` - `Exhibit P3 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE THIRD PETITIONER` - `Exhibit4 A TRUE COPY OF NOTIFICATION AS S.R.O.NO.864/2012 OF THE FIRST RESPONDENT DATED, 15-12-2012` - `Exhibit P5 A TRUE COPY OF THE JUDGMENT IN W.A.NO.105/2012 OF THIS HON'BLE COURT DATED, 18-7-2013` - `Exhibit P6 A TRUE COPY OF THE NOTIFICATION AS G.O.(P)NO.13/2014/TRAN. DATED, 17-22014(SRO NO.137/2014)` - `Exhibit P7 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED, 2-6-2022 AS NO.DCEKM/4053/2020-A5` - `Exhibit P7(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P7` WPC.19506/22&19533/22 16 ## **`APPENDIX OF WP(C) 19533/2022`** ## **`PETITIONER EXHIBITS`** - `Exhibit P1` - `A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE FIRST PETITIONER` - `Exhibit P2 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE SECOND PETITIONER` - `Exhibit P3 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE THIRD PETITIONER` - `Exhibit4 A TRUE COPY OF NOTIFICATION AS S.R.O.NO.864/2012 OF THE FIRST RESPONDENT DATED, 15-12-2012` - `Exhibit P5 A TRUE COPY OF THE JUDGMENT IN W.A.NO.105/2012 OF THIS HON'BLE COURT DATED, 18-7-2013` - `Exhibit P6 A TRUE COPY OF THE NOTIFICATION AS G.O.(P)NO.13/2014/TRAN. DATED, 17-22014(SRO NO.137/2014)` - `Exhibit P7 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED, 25-6-2022 AS NO.DCEKM/2067/2020-DCALP` - `Exhibit P7(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P7`