Zainudheen v. Transport Commissioner and Regional Transport Officer, Tirur

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 WA NO. 782 OF 2016 ``` ``` AGAINST THE JUDGMENT IN WPC 13516/2012 OF HIGH COURT OF KERALA ``` ## **`APPELLANTS/RESPONDENTS IN WPC:`** ``` 1THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM – 695 001. ``` ``` 2THE REGIONAL TRANSPORT OFFICER, TIRUR, MALAPPURAM DISTRICT – 676 552. ``` ``` BY SR. GOVERNMENT PLEADER SRI.K.P. HARISH ``` ## **`RESPONDENT/PETITIONER IN WPC:`** ``` ZAINUDHEEN, S/O.MOIDU, ORAVAKKOTTIL HOUSE, TOLAVNOORE P.O., VALANCHERRY (VIA), MALAPPURAM. ``` ``` ADV.SRI.C.M.KAMMAPPU ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.782 of 2016** **2** ## **JUDGMENT** Dated this the 26[th ] day of October, 2022 ## **S.Manikumar, C.J.** ## Before the writ court, petitioner in W.P.(C)No.13516 of 2012 has sought for the following relief: “1. Issue a writ of mandamus or any other appropriate writ order or direction commanding direction to the second respondent to register the petitioners Mahindra Genio DDC VX 2wd Bs 3 vehicle as a non transport vehicle.” 2. Short facts leading to the filing of the writ petition are as under: ## 2.1. Petitioner has purchased a Mahindra Genio DDC VX 2wd Bs 3 vehicle. The said vehicle is a double cabin pick up truck which possesses 2 cabins. Petitioner intended to use the vehicle for personal purpose. He apprehended that the respondents will not allow the vehicle of above make and type to be registered as a private vehicle. 2.2. It was contended that this court in identical circumstances in **Cherian v. Transport Commissioner** **3** ## **W.A.No.782 of 2016** reported in 2009 (2) KLT 583, held that Mahindra Bolero Camper vehicle can be registered as light motor vehicle. It was also held that when the vehicle is not designed for carriage of goods, user of vehicle has to be considered for deciding whether it is to be treated as a transport vehicle or as a nontransport vehicle. Hence, seeking a direction to the Regional Transport Officer, Tirur - 2[nd] respondent, to register the petitioner’s vehicle as a non-transport vehicle, writ petition was filed. 3. After considering the material on record and taking note of the decision in **Cherian v. Transport Commissioner** reported in 2009 (2) KLT 583, by common judgment dated 13.06.2013 in W.P.(C)No.2633 of 2012 and connected cases, writ court allowed the writ petition and granted the prayers. 4. When the appeal came up on 19.10.2022, Mr.K.P.Harish, learned Senior Government Pleader submitted that the judgment relied on by the learned single Judge has been reversed by a Hon’ble Division Bench in **Hassan Koya v. Transport Commissioner** reported in 2015 (1) KLT 916. **W.A.No.782 of 2016** **4** Taking note of the above, we directed the learned Senior Government Pleader to ascertain as to the implementation of the impugned judgment and the current status as to whether the vehicle is in operation. 5. Reverting, on instructions, Mr.K.P.Harish, learned Senior Government Pleader submitted that the said vehicle bearing registration No.KL-55/K-9993 is still in operation and that certain alteration has also been permitted. 6. The decision in **Cherian v. Transport Commissioner** (supra) has been reversed in **Hassan Koya v. Transport Commissioner** (supra) in the following manner: “22. The issue involved in the aforesaid Writ Appeals and writ petition is in regard to the registration of a motor vehicle, which is dealt with under Chapter IV of the Act. Registration has to be made by every owner of a motor vehicle by a Registering Authority in whose jurisdiction he has the residence or place of residence where the vehicle is normally kept (Section 40). Section 41 of the Act indicates the particulars regarding the procedure to be followed for registration of a motor vehicle. An application has to be submitted in the prescribed form and it has to accompany such documents, particulars and information as prescribed by the Central Government. Section 41(4) gives power to the Central Government to issue notification to **W.A.No.782 of 2016** **5** include in the registration certificate the type of vehicle having regard to its design, construction and use. Section 58(2) of the Act also provides that a Registering Authority when registering a transport vehicle other than a motor cab shall enter in the record of registration and certificate of registration of the vehicle the particulars regarding the unladen weight of the vehicle, the number, nature, size of tyre attached to the wheels, the gross vehicle weight, the registered axle weight etc. Section 58(2)(d) provides that if the vehicle is used or adapted to be used for carriage of passengers solely or in addition to goods, the number of passengers for whom accommodation is provided and the owner of the vehicle shall have the said particulars exhibited in the prescribed manner on the vehicle. 23. Chapter III of CMV Rules, prescribes the particulars to be submitted for registration of a vehicle. As per Rule 47 of CMV Rules, an application for registration of a motor vehicle has to submitted in Form No.20. In Form No.20, among the particulars that are required to be furnished, Sl.No.12 refers to “class of vehicle”, Sl.No.14 refers to type of body, Sl.No.15 refers to type of vehicle. Sl.No.24 refers to seating capacity (including driver). In respect of transport vehicles other than motor cab, certain other particulars are also to be specified which inter alia includes the number, description, size and ply rating of tyres, as declared by the manufacturer, gross vehicle weight as certified by the manufacturer, maximum axle weight, the dimensions etc. The application has to be accompanied by sales certificate in Form No.21 to be **W.A.No.782 of 2016** **6** issued by the manufacturer/dealer. In the said form Sl.No.1 refers to class of vehicle, Sl.No.9 refers to seating capacity which includes driver and Sl.No.14 refers to type of body. Rule 48 indicates that after verification of the documents furnished in terms of Rule 47, the Registering Authority shall issue a certificate of registration in Form No.23 or 23A. Form No.23 is the certificate of registration, which shall contain various particulars and Sl.No.1 refers to class of vehicle, Sl.No.3 type of body, Sl.No.11 maker's classification, Sl.No.13 seating capacity. Certain additional particulars are to be included in all transport vehicles other than motor cabs relating to gross vehicle weight, particulars regarding rating of tyres as declared by manufacturer, axle weight etc. Therefore it is evident that the class of vehicle is one of the specific particulars to be mentioned in the application for registration, the manufacturer's certificate as well as registration certificate. 24. In all these cases, the request of the petitioners is to classify the vehicle as a non-transport vehicle on the allegation that they do not intend to use the vehicle as a goods carriage which is a transport vehicle. The vehicles admittedly have a goods carriage portion also, in addition to seating capacity of upto 5 seats. The contentions are twofold. One is that the vehicle is not solely constructed or adapted for carriage of goods and secondly they have not purchased it for carriage of goods. 25. The issue to be decided is whether the **W.A.No.782 of 2016** **7** Registering Authority can register a vehicle, which is certified by the manufacturer as a goods vehicle, as a nontransport vehicle based on the use to which the owner of the vehicle intends to use it. 26. Let us now advert to the definition of a transport vehicle and the different classes of vehicles coming within the said meaning. Section 2(47) : 'transport vehicle' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle; Section 2(35) : 'public service vehicle' means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi cab, a motor cab, contract carriage and a stage carriage; Section 2(14) : 'goods carriage' means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods; Section 2(11) : 'educational institution bus' means an omni bus which is owned by a college, school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities; Section 2(33) : 'private service vehicle' means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes; 27. Chapter V of the CMV Rules prescribes the parameters and standards which the vehicles have to maintain which inter alia includes over all dimension of **W.A.No.782 of 2016** **8** the4 vehicles' emission levels, size of tyres, break, gear, windscreen wipers, lights, safety devices etc. The manufacturers are under obligation to comply with the standards prescribed under the Rules. Rule 126 inter alia provides that every manufacturer of motor vehicle shall submit the prototype of vehicle for test by the Vehicle Research and Development Establishment, Ministry of Defence or Automotive Research Association of India, Pune or such other agencies as recognised by the Government to ensure that they comply with the standards prescribed under the Rules which applies to imported vehicles as well. 28. The Learned Government Pleader made available to us the Kerala Motor Vehicles Manual which are the instructions given to the Registering Authority. Specific reference is made to Chapter IV which relates to registration of a motor vehicle. The manual gives a general idea about how the officers have to take note of the particulars regarding registration as provided under the statutory provisions. She referred to the class of vehicle which had to be classified as light motor vehicle, medium motor vehicle, heavy motor vehicle etc. The Manual contains provisions which are available under the statutory provisions and we do not think that a reference to the manual is required for a proper adjudication of the case. 29. Having regard to the aforesaid statutory provisions, what is required to be considered is whether a vehicle can be classified based on the actual use by the **W.A.No.782 of 2016** **9** owner of the vehicle. In Cheriyan's case (supra), the learned Single Judge observed that if the owner of a vehicle is using the vehicle only for the purpose of carrying persons, it can be classified as a non-transport vehicle, whereas it is open for the registering authority to subsequently verify whether the vehicle is being used as a goods carriage, in which event, appropriate steps can be taken in the matter. Transport vehicle apparently is a vehicle used for transportation of passengers or goods. We are concerned with a particular type of vehicle which can be utilised for carrying persons as well as goods. Goods have been defined under Section 2(13) of the Act as 'goods' includes live-stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle;'. Therefore, if a motor vehicle is used to carry anything other than living persons or personal luggage/effects as defined under section 2(13), it amounts to carriage of goods within the meaning of Section 2(14). Transport vehicle apparently includes 'goods carriage' and therefore the meaning of 'goods carriage' would clarify the point in issue. To be a goods carriage, it should primarily be a 'motor vehicle constructed or adapted for use solely for the carriage of goods' The first question therefore would be whether the motor vehicle which is sought to be registered is constructed or adapted solely for carriage of goods. It is in this background that a reference has to be made to the **W.A.No.782 of 2016** **10** certification issued by the manufacturer. If a manufacturer classifies the motor vehicle as a goods carriage or goods vehicle, there cannot be any doubt that it is solely constructed or adapted for the carriage of goods. In such an event, the vehicle can only be classified as a goods carriage and therefore a transport vehicle and the Registering Authority has no discretion in the matter. However it is open for the Central Government to specify by notification in the official gazette, to include in the certificate of registration the type of vehicle having regard to the design, construction and use of motor vehicle, as specified under section 41(4) of the Act. No such notification has been brought to our notice in this regard. As already indicated, every manufacturer has to comply with the prototype test in terms of Rule 126 of CMV Rules and the utility of the vehicle depends upon the approved test by the competent agency. This position has been well stated in Sunny Scaria and Father Jose Panakezham (supra). If such agencies have certified the vehicle to be of a class which comes under 'goods carriage', it can only be treated as a transport vehicle. 30. Several manufacturers come up with different type of vehicles as evident from Ext.P1 in W.A.No.51/2014 which is a passenger cum goods vehicle. But that is not the certification for the vehicle involved in the said case whereas it was a certification issued with reference to some other vehicle. Therefore, primarily, classification of the vehicle has to depend upon the manufacturer's certification. Only in case, there is any ambiguity regarding **W.A.No.782 of 2016** **11** such classification that the Transport Commissioner or any other competent authority is required to issue any clarification. The fact that the CMV Rules clearly specifies about an entry to be made in the registration certificate based on the class of vehicle as certified by the manufacturer strengthens our aforesaid view. 31. Now coming to the second part of the definition of 'goods carriage', that is 'any motor vehicle not so constructed or adapted when used for the carriage of goods', relates to a different situation. There might be instances of vehicles, though not constructed or adapted solely for carriage of goods are used for that purpose. In such an event, the Registering Authority can treat the same as a goods carriage. But, as far as registration is concerned, which is the primary aspect to be complied for plying the vehicles on road, classification depends purely upon the certificate issued by the manufacturer and the notification if any issued under section 41(4) of the Act. 32. The learned Government Pleader also brought to our notice the various categories of vehicles by way of Annexures in the Writ Appeal. Annexure II is a publication of ARAI published in December 2005 which categorizes vehicles into different categories. Specific reference has been given to Category N which means a motor vehicle with at least four wheels used for carrying goods. It further specifies that these vehicles can carry persons in addition to the goods subject to the conditions in Clause 3.2. Clause 3.2 indicates that a vehicle which is designed to **W.A.No.782 of 2016** **12** carry persons in addition to goods shall be categorized as N category vehicle, if certain conditions are met. One of the conditions is that seating position excluding the driver shall not be more than six. There are other conditions as well regarding weight, goods carriage etc. Therefore, according to the Learned Government Pleader, these vehicles come under N category. She refers to Annexure III certificate of ARAI which refers to Mahindra Bolero Camper VX-2WD. The type of vehicle is shown as goods vehicle normal control-N1. Seating capacity is 5 persons, load carrying capacity 370 Kgs. Annexure IV is a certificate issued by Vehicles Research and Development Establishment, another recognised agency in respect of Mahindra Bolero - DX 2WD - 8 seater which is categorized as M1 and is a passenger vehicle. Annexure V is with reference to Tata Xenon which is described as goods carriage coming under N1. The very same vehicle has other variants of passenger vehicle coming under M1. Certain models are categorized as M1 and certain as N1. Annexure VI refers to Tata Xenon which is categorized as goods carriage. Therefore it is evident that even if the seating capacity is 5 seats, still it could be a goods carriage. 33. It is therefore clear from the aforesaid documents that when a particular model vehicle is certified by an approved agency under R. 126, the classification has to be made on that basis. If the model of vehicle is categorized as goods vehicle under N1 category by the manufacturer, the same entry has to come in the registration certificate as well and the said classification **W.A.No.782 of 2016** **13** cannot be changed. 34. In Cheriyan's case (supra) as well as in Vijay Kumar and Alex Thomas (supra) directions have been issued to verify the use of vehicle in order to ascertain the classification. Such a view, according to us, is not the correct approach to be made in the matter. The second part of the definition of 'goods carriage' to the extent it indicates that a motor vehicle which is not constructed or adapted solely for carriage of goods can be treated as a goods carriage when it is used as a goods carriage, only means that vehicles which are not classified as goods carriage in the certification of the manufacturer, can be treated as goods carriage, if it is used by the owner as a goods carriage. It is not the other way. A vehicle classified as goods carriage or goods vehicle by the manufacturer remains as a goods carriage for the purpose of registration. 35. Learned counsel for the writ petitioners however would contend that if the goods carriage is to be treated as transport vehicle it has to comply with certain other norms, namely, that it has to be driven by a qualified licence holder having badge, certification of fitness has to be obtained periodically and the vehicle has to be painted with a particular colour. Apparently, those are statutory provisions which have to be complied with if the vehicle belongs to a particular classification. 36. A reference to the definition of light motor **W.A.No.782 of 2016** **14** vehicle would be useful as in most of the cases the request is to register the vehicle as Light Motor Vehicle (non transport). S.2(21): "light motor vehicle" means a transport vehicle or omni bus the gross vehicle weight of either of which or a motor cab or road roller the unladen weight of any of which, does not exceed 7500 Kilo Grams; such a classification depends upon the weight of the vehicle and cannot be a reason to classify the same as "non transport, if it actually is a goods carriage. Therefore, we do not think that Cheriyan's case (supra) has laid down the correct law and we set aside the said judgment.” Following the judgment in **Hassan Koya v. Transport Commissioner** (supra), writ appeal is allowed. Consequently, W.P.(C)No.13516 of 2012 is dismissed. Appellants are directed to take appropriate action on the basis of delay. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** //TRUE COPY// P.A. TO JUDGE