Zainaba M.K. v. The Registering Authority cum Regional Transport Officer, Kozhikode and The Transport Commissioner of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940 WP(C).No. 23941 of 2018** ## **PETITIONER/S:** **ZAINABA M.K., AGED 52 YEARS** **HEAD MISTRESS (TEACHER IN CHARGE),CALICUT GIRLS VOCATIONAL & HIGHER SECONDARY SCHOOL,KUNDUNDAL, CALICUT-3** **BY ADVS. SRI.G.PRABHAKARAN SMT.R.PADMAKUMARI** ## **RESPONDENT/S:** - **1 THE REGISTERING AUTHORITY CUM REGIONAL TRANSPORT OFFICER, KOZHIKODE-673 020** **2 THE TRANSPORT COMMISIONER OF KERALA THYCAUD PO, THIRUVANANTHAPURAM-695 014** **BY SRI P.SANTHOSH KUMAR, SPECIAL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGMENT** The petitioner, who purchased a stage carriage bearing Registration No.KL-11/R-3456 covered by Ext.P1 certificate of registration, has filed this writ petition under Article 226 of the **WP(C).No. 23941 of 2018** **2** Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to consider Ext.P5 proceedings for change of class of vehicle as 'stage carriage bus' from 'Educational Institution bus' by granting C.F.etc. for that purpose, without insisting for the compliance of Bus Body Code. The petitioner has submitted Ext.P2 request dated 15.06.2018 for alteration of the class of the said vehicle, which is a 2002 model vehicle with seating capacity of 39 in all, with date of registration 10.04.2003, as 'Educational Institution Bus' from 'stage carriage'. 2. On 18.07.2018, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions. **==> picture [387 x 10] intentionally omitted <==** petitioner and also the learned Special Government Pleader appearing for the respondents. 4. The issue raised in this writ petition is as to the applicability of Bus Body Code prescribed under Rule 125C of the Central Motor **WP(C).No. 23941 of 2018** **3** Vehicle Rules, 1989 (for brevity 'CMV Rules'), while seeking alteration of class of vehicle. The fact that the vehicle in question was originally registered as 'stage carriage' prior to the introduction of Rule 125C of the CMV Rules is not in dispute. 5. During the course of arguments, it is submitted by the learned counsel on both sides that W.A.No.1678 of 2018 and connected cases, filed by the State challenging the judgment of this Court dated 24.05.2018 in W.P.(C).No.1015 of 2018 and connected cases, ended in dismissal by the judgment of the Division Bench of this Court dated 27.09.2018. Paragraphs 4 to 6 of the said judgment read thus: _"4. It is the case of the appellants that, in as much as the writ petitioners had presented transport vehicles, that were earlier registered as educational institution buses/private service vehicles, for alteration of the class of vehicles to stage carriage/contract carriage, the writ petitioners were obliged to ensure that the vehicles presented for alteration of class of vehicles also complied with the new specifications for the bus body in terms of Rule_ **WP(C).No. 23941 of 2018** **4** _125C of the Central Rules._ _5. We have considered the submissions of the learned Government Pleader for the appellants but, we are afraid, we cannot read Rule 125C in the manner suggested by the appellants. A mere perusal of the Rules would indicate that while Rule 125C (1) mandated that only new models of buses with seating capacity of 13 or more passengers excluding driver had to have the body built in accordance with new specifications (AIS:052 (Rev-1) 2008) at the time of presentation for testing and approval for body building, the proviso to the said Rule made the requirement applicable to existing models of such buses as well, on and after 1.4.2015. In either event, the rule applied only when a new model of vehicle was presented with the chasis and a body fitted thereon or when an existing model vehicle chassis was presented with a new body fitted thereon. In the instant Appeals, it is the admitted case that the vehicles, in respect of which the applications for alteration of class were preferred, were all vehicles with unaltered chassis and body. In other words, it was not a case where any of the vehicles had been presented with a request for approval for a new body that was built on a chassis of an existing model of the vehicle. In our view, in such cases, where there is no replacement of the body of the vehicle with a new body, the provisions of Rule 125C (1), together with the proviso thereof would have no application. It needs to be noted further, for the sake of_ **WP(C).No. 23941 of 2018** **5** _completion, that the amendment that was brought about through the notification dated 20.9.2016 only had the effect of removing the erstwhile proviso and substituting it with a new proviso. The new proviso only clarifies that the implementation of the revised standards, in cases of new models of bus with seating capacity of 13 or more passengers excluding driver, will be done in two phases. In other words, the amendment has the effect of doing away with the necessity of compliance with the revised standards, so far as existing models of buses with seating capacity of 13 or more passengers excluding driver are concerned. As already noted above, we are of the view that, in the case of the writ petitioners, the proviso to the unamended Rule had no application. The amendment to the Rule, therefore, did not impact them in any way._ _6. We are therefore in complete agreement with the findings of the learned single Judge on the issue of necessity for the vehicles in question, to comply with the requirement of the revised standards under Rule 125C of the Central Rules as a pre-condition for the consideration of the applications for alteration of class of vehicle. The Writ Appeals consequently fail and are accordingly dismissed.” (underline supplied)_ 6. A reading of the judgment in W.A.No.1678 of 2018 and connected cases would make it clear that the provisions under Rule 125C of the CMV Rules **WP(C).No. 23941 of 2018** **6** have application only to new models of buses with seating capacity of 13 or more passengers excluding driver. In respect of those vehicles, the body has to be built in accordance with new specifications (AIS:052 (Rev-1) 2008) at the time of presentation for testing and approval for body building. The proviso to the said Rule, made the requirement applicable to existing models of such buses as well, on and after 01.04.2015. In either event, the rule applies only when a new model of vehicle was presented with the chassis and a body fitted thereon or when an existing model vehicle chassis was presented with a new body fitted thereon. 7. In the judgment in W.A.No.1678 of 2018 and connected cases, the Division Bench noticed that in the appeals it is the admitted case that the vehicles, in respect of which the applications for alteration of class were preferred, were all vehicles with unaltered chassis and body. In other words, it was not a case where any of the vehicles **WP(C).No. 23941 of 2018** **7** had been presented with a request for approval for a new body that was built on a chassis of an existing model of the vehicle. Therefore, the Division Bench held that in such cases, where there is no replacement of the body of the vehicle with a new body, the provisions of sub-rule (1) of Rule 125C of CMV Rules, together with the proviso thereof would have no application. 8. Having considered the submissions made by the learned counsel on both sides and the judgment of the Division Bench in W.A.No.1678 of 2018 and connected cases, this Court finds that the application made by the petitioner for alteration of the class of vehicle has to be considered by the respondent Registering Authority, taking note of the law laid down by this Court in the decision referred to supra. 9. In **M.C. Metha v. Union of India [(1997) 8** **SCC 770]** , a Three-Judge Bench of the Apex Court held that the existing provisions in the Motor Vehicles Act alone are sufficient to clothe the **WP(C).No. 23941 of 2018** **8** members of the police force and the transport authorities with ample powers to control and regulate the traffic in an appropriate manner so that no vehicle being used in a public place poses any danger to the public in any form. The requirement of maintaining the motor vehicles in the manner prescribed and its use if roadworthy in a manner which does not endanger public, has to be ensured by the authorities and this is the aim of the provisions enacted in the Motor Vehicles Act. 10. In **Usha Nanthini v. Secretary, Regional** ## **Transport Authority, Palakkad and another [2018** **(2) KHC 89]** , in the context of Section 83 of the Motor Vehicles Act, this Court held that use of a transport vehicle which is not roadworthy in the manner prescribed under the Motor Vehicles Act and the rules made thereunder would endanger the life of the travelling public and also the public on the road, as there is every possibility that driving of such vehicles may lead to major road accidents. Therefore, strict compliance with the **WP(C).No. 23941 of 2018** **9** provisions of Rule 62 of the Central Motor Vehicles Rules, read with the relevant provisions under Chapter V of the said Rules, in so far as the same are applicable to transport vehicles, is highly essential for permitting the use of a transport vehicle on the road. A vehicle which no longer complies with all the requirements of the Motor Vehicles Act and the rules made thereunder cannot be permitted to be driven or plied on the road. Therefore, roadworthiness and viability of the incoming vehicle shall be the consideration in an application for replacement, rather than the model of the incoming vehicle. 11. Therefore, roadworthiness and viability of the vehicle shall be the consideration in an application for alteration of the class of a transport vehicle. In that view of the matter, a decision on the request made for alteration of the class of a transport vehicle has to be taken, taking into consideration the nature of the alteration required, the road worthiness and also **WP(C).No. 23941 of 2018** **10** the viability of the vehicle. In such circumstances, this writ petition is disposed of by directing the 1[st] respondent Registering Authority to consider Ext.P2 application made by the petitioner for alteration of the class of her vehicle, taking note of the law laid down by the Division Bench of this Court in W.A.No.1678 of 2018 and connected cases and also the decisions referred to supra, and after conducting an inspection of the vehicle with reference to the provisions under the Motor Vehicles Act and Rules made thereunder, as it stood prior to the introduction to Rule 125C of the Central Motor Vehicle Rules. A decision in this regard shall be taken, as expeditiously as possible and at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. **Sd/-** ## **ANIL K.NARENDRAN,JUDGE** **WP(C).No. 23941 of 2018** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **EXHIBIT P2** **EXHIBIT P3** **TRUE COPY OF THE REGISTRATION CERTIFICATE WITH THE VEHICLE KL 11/R 3456 WITH ENDORSEMENT** - **TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 15.6.2018** - **TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 27.12.2017** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE MEMO ISSUED BY THE 1ST RESPONDENT DATED 12.3.2018** - **EXHIBIT P7** - **EXHIBIT P8** - **TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY TRANSPORT COMMISSIONER KOZHIKODE DATED 16.4.2018** - **TRUE COPY OF THE JUDGMENT DATED 24.5.2018 IN WPC NO.1015/2018** AV/24/10