Kerala High Court
The Principal, Sabari Ptb Smaraka H.S.S vs The Additional Registering Authority, ... on 6 April, 2022
Author: Anil K. Narendran
Bench: Anil K.Narendran
WP(C) No.23021/2018 1 / 20
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
Wednesday, the 6th day of April 2022 / 16th Chaithra, 1944
WP(C) NO. 23021 OF 2018(C)
PETITIONER:
THE PRINCIPAL, SABARI PTB SMARAKA H.S.S ADAKKAPUTHUR, OTTAPALAM.
BY ADV.SRI.P.DEEPAK
RESPONDENTS:
1. THE ADDITIONAL REGISTERING AUTHORITY, OTTAPALAM -679101.
2. ADDL.R2. P.M.SHAJI, MOTOR VEHICLES INSPECTOR, SUB REGIONAL TRANSPORT
OFFICE, SBI BUILDING, NEAR MUNCIPAL BUS STAND, OTTAPALAM, PIN 671
521. ADDITIONAL 2ND RESPONDENT SUO MOTU IMPLEADED AS PER ORDER DATED
05/09/2019.
3. ADDL R3, THE TRANSPORT COMMISSIONER, KERALA, TRANSPORT
COMMISSIONERATE, 2ND FLOOR, TRANS TOWERS, VAZHUTHACAUD, THYCAUD P.O,
THIRUVANANTHAPURAM-695 014 IS SUO MOTU IMPLEADED AS PER ORDER DATED
28-10-2019 IN WP(C)23021/2018.THIRUVANANTHAPURAM
BY GOVERNMENT PLEADER FOR RESPONDENTS
ASGI FOR RESPONDENTS
This Writ petition(Civil) coming up for orders on 06/04/2022, upon
perusing the judgement dated 28/10/2019 IN WP(C) 23021/2018 and this
court's order dated 15/12/21, the court passed the following:
WP(C) No.23021/2018 2 / 20
ANIL K. NARENDRAN, J.
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W.P.(C)No.23021 of 2018
-----------------------------------
Dated this the 6th day of April, 2022
ORDER
In Avishek Goenka v. Union of India [(2012) 5 SCC 321], after referring to the provisions under Rules 100, 104, 104A, 106, 119 and 120 of the Central Motor Vehicles Rules, 1989 the Apex Court held that the Central Motor Vehicles Rules deal with every minute detail of construction and maintenance of a vehicle. In other words, the standards, sizes and specifications which the manufacturer of a vehicle is required to adhere to while manufacturing the vehicle are exhaustively dealt with under the Rules. What is permitted has been specifically provided for and what has not been specifically stated would obviously be deemed to have been excluded from these Rules. It would neither be permissible nor possible for the court to read into these statutory provisions, what is not specifically provided for. The provisions of the Central Motor Vehicles Rules demonstrate the extent of minuteness in the Rules and the efforts of the framers to ensure, not only the appropriate manner of construction and maintenance of vehicle, but also the safety of other users of the road. The Apex Court WP(C) No.23021/2018 3 / 20 W.P.(C)No.23021 of 2018 2 held further that, the legislative intent attaching due significance to 'public safety' is evident from the object and reasons of the Motor Vehicles Act, 1988, the provisions of the said Act and more particularly, the rules framed thereunder.
2. In the instant case, the petitioner, who is the Principal of Sabari PTB Smaraka Higher Secondary School, Adakkaputhur, Ottappalam, filed the writ petition seeking a writ of mandamus commanding the 1st respondent Additional Registering Authority, Ottappalam to endorse the class of vehicle bearing registration No. KL-09/L-8719, covered by Ext. P5 certificate of registration, as Educational Institution Bus (Contract Carriage), without insisting compliance of Rule 125C of the Central Motor Vehicles Rules.
3. In the judgment dated 28.10.2019 - Principal, Sabari PTB Smaraka H.S.S. v. Additional Registering Authority and others [2020 (2) KHC SN 9 : 2020 (2) KLJ 662 : 2019 SCC OnLine Ker 7998] this Court held that the petitioner's vehicle, which does not meet the safety standards for installation of lighting, light-signalling devices and retro-reflectors specified in Safety Standards No.15.1, followed by AIS-008/2001 and S.O.1365(E) dated 13.12.2004, cannot be permitted to be used WP(C) No.23021/2018 4 / 20 W.P.(C)No.23021 of 2018 3 in any public place, since use of such vehicles in any public place is likely to endanger the safety of other road users. Since the registration mark on the petitioner's vehicle is not displayed as per the statutory mandate of Rules 50 and 51 of the Central Motor Vehicles Rules and also Regulation 36 of the Motor Vehicles (Driving) Regulations, 2017; and the vehicle is not provided with an emergency exit, as specified in sub-rule (1) of Rule 291A of the Kerala Motor Vehicles Rules, for evacuation of the children, in case of emergency; the said vehicle cannot be said to be a motor vehicle that complies with the provisions of the Motor Vehicles Act and the rules made thereunder, for the purpose of granting certificate of fitness in Form 38, under Rule 62 of the Central Motor Vehicles Rules, by the inspecting authority or the authorised testing station. On noticing that, despite the direction issued by this Court in Ma'Din Public School v. Regional Transport Officer [2019 (2) KLT 1011 : 2019 SCC OnLine Ker 1040] and Saji v. Deputy Transport Commissioner [2019 (3) KHC 836 : 2019 SCC OnLine Ker 2047], motor vehicles which are likely to endanger the safety of other road users, are being permitted to be used in public place by the Registering Authorities in the WP(C) No.23021/2018 5 / 20 W.P.(C)No.23021 of 2018 4 State, this Court issued various directions to the Transport Commissioner, Kerala in Paras.126 to 131 of that judgment, who was directed to file action taken report before this Court on or before 04.04.2020.
4. On 24.11.2020, the Joint Transport Commissioner (Enforcement) has filed action taken report for and on behalf of the additional 3rd respondent Transport Commissioner, producing therewith Annexure R3(a) statement showing the details of check reports prepared, the amount of compounding fee collected, etc.
5. On 15.01.22021, along with a memo filed by the learned Special Government Pleader, a copy of Circular No.69/CAMP/ADGP(HQ)/2019 dated 14.12.2020 of the State Police Chief was placed on record, whereby all officers in Police Department are directed to remove contraband articles (window curtains, bull bars, sun films, etc.), if any, from all the vehicles of Police department. In the circular it is stated that, it will be the personal responsibility of the officers to ascertain that department vehicles under their control are not fitted with these contraband articles.
6. Along with the memo filed on 15.01.2021, the WP(C) No.23021/2018 6 / 20 W.P.(C)No.23021 of 2018 5 learned Special Government Pleader has also placed on record a copy of Circular No.G3/858/2019/Home dated 30.12.2020 issued by the Government of Kerala, Home Department, regarding use of window curtains/black films in official vehicles of various Government Departments, whereby all Government Departments are instructed to ensure that none of the vehicles under their administrative control use curtains/dark films or any material which affects the visual light transmission percentage, through the windscreens/ windows, as stipulated in the Motor Vehicles Act, 1988.
7. On 01.02.2021, the learned Special Government Pleader submitted that, for the period from 17.01.2021 to 20.01.2021, under the special drive 'Operation Screen', 5,775 vehicles were booked for using cooling films, curtains, etc. On 23.03.2021, the Joint Transport Commissioner (Enforcement) has filed a statement for and on behalf of the additional 3 rd respondent Transport Commissioner, wherein it is stated that in the special drive 'Operation Screen' an amount of Rs.14,43,709/- has been recovered for fixing cooling films and sliding curtains in motor vehicles.
8. In the order dated 09.04.2021, this Court noticed WP(C) No.23021/2018 7 / 20 W.P.(C)No.23021 of 2018 6 that, large number of motor vehicles, including stage carriages, contract carriages and goods vehicles, which are likely to endanger the safety of other road users, are being permitted to be used in public place, in violation of the safety standards prescribed in AIS-008/AIS-009/2001/AIS-030/2001. The light emitted from the additional headlamps/lamps installed on the face cowl is capable of dazzling the drivers of the oncoming vehicles directly, and also the drivers of the vehicles proceeding in front, indirectly, through the rear-view mirrors and/or other reflecting surfaces of their vehicle. The light emitted from such additional headlamps/lamps is also capable of dazzling the pedestrians. Motor vehicles are being permitted to be used in public place after putting objects in front of the lighting, light- signalling devices or reflectors. Large number of motor vehicles, especially motor cars are being permitted to be used in public place after replacing the prototype approved reflectors on the rear bumper with after-market LED brake lights/direction indicator lights. Flashing lamps are being permitted to be used in lamps other than direction indicators and hazard-warning signal, in violation of Para.5.9 of AIS-008. Large number of motor vehicles, especially stage carriages, WP(C) No.23021/2018 8 / 20 W.P.(C)No.23021 of 2018 7 contract carriages and goods vehicles are being permitted to be used in public place with red flashing stop lamps, flashing lamps inside headlight assembly, flashing lamps on the roof top of the cabin, etc. The light emitted from such lamps is capable of dazzling the drivers of the oncoming vehicles and also the pedestrians. Large number of motor vehicles, especially motor cars and motor cycles are being permitted to be used in public place after 'tinting' lighting, light-signalling devices (i.e., headlights, tail lights, indicators, daytime running light, etc.) or reflectors by fixing vinyl tint film sticker. Video contents of such alterations and also the use of such vehicles in public place are being uploaded on online video platforms like 'YouTube' by the registered owners of such vehicles or by the vloggers.
9. In the judgment dated 28.10.2019 (Para.128) this Court directed the additional 3rd respondent Transport Commissioner to take necessary steps to ensure through the concerned officers in the Motor Vehicles Department that no motor vehicle, including transport vehicle, is permitted to be used in any public place, without displaying the registration mark on a licence plate having the specification prescribed in clause (vi) of sub-rule (1) of Rules 50 and 51 of the Central WP(C) No.23021/2018 9 / 20 W.P.(C)No.23021 of 2018 8 Motor Vehicles Rules and Regulation 36 of the Motor Vehicles (Driving) Regulations, 2017; and without 'rear registration plate (mark) illuminating lamp', illuminating the space accommodating the rear registration plate. The registration mark on every motor vehicle shall be displayed clearly and legibly using fonts having 'uniform thickness'. The display of registration mark using 'fancy fonts' or 'decorative fonts', shall not be permitted.
10. In the judgment dated 28.10.2019 (Para.128) this Court held that, the use of emblem and display of flag shall be permitted only on vehicles carrying the constitutional authorities and other dignitaries specified in Part I and Part II of Schedule II of the State Emblem of India (Regulation of Use) Rules, 2007/the dignitaries specified in clauses (1) to (7) of Paragraph 3.44 of the Flag Code of India, 2002. The 'Official Emblem of the State Government', after incorporating the 'State Emblem of India' or any part thereof, shall not be displayed on a motor vehicle, other than a vehicle carrying the constitutional authorities specified in Part II of Schedule II of the said Rules. Such vehicles shall also display registration mark in the form and manner specified under Rule 50; and the WP(C) No.23021/2018 10 / 20 W.P.(C)No.23021 of 2018 9 size of letters and numerals of the registration mark shall be as specified in Rule 51, which shall be exhibited on a licence plate having the size of 500 × 120 mm. Similarly, the vehicles carrying senior officers of Indian Army, Indian Air Force, Coast Guard, etc., who are permitted to fly official distinguishing flags and display star plates to denote their presence, under the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations, 1963 made by the Central Government in exercise of the powers conferred by Section 184 of the Navy Act, 1957 and similar provisions applicable to Indian Army, Indian Air Force, Coast Guard, etc. shall also display registration mark in the manner specified in Rule 74 of the Central Motor Vehicles Rules, 1989. In view of Sub-regulation (3) of Regulation 36 of the Motor Vehicles (Driving) Regulations, 2017, no letter, word, figure, picture or symbol other than the registration number shall be displayed or inscribed or written on the registration plate of a motor vehicle, including a motor vehicle carrying the constitutional authorities and other dignitaries specified in Part I and Part II of Schedule II of the State Emblem of India (Regulation of Use) Rules, 2007/dignitaries specified in clauses (1) to (7) of Paragraph 3.44 of the Flag Code of India, 2002. WP(C) No.23021/2018 11 / 20 W.P.(C)No.23021 of 2018 10
11. In the judgment dated 28.10.2019 (Para.105) this Court noticed that, the rule making power under clause (p) of sub-section (2) of Section 62 of the Motor Vehicles Act does not empower the State Government to permit use of any emblem/star plate or display of any flag on a motor vehicle, other than a vehicle carrying the constitutional authorities and other dignitaries specified in Part I and Part II of Schedule II of the State Emblem of India (Regulation of Use) Rules, 2007/ clauses (1) to (7) of Paragraph 3.44 of the Flag Code of India, 2002. The rule making power under clause (p) of sub-section (2) of Section 62 of the Motor Vehicles Act does not empower the State Government to permit use of 'name board' on a motor vehicle.
12. In the order dated 09.04.2021, this Court noticed that, the Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, Government of India, has issued Office Memorandum No.A-27023/30/2016-Ad.VI(A) dated 03.11.2017 against unauthorised use of the State Emblem on official cars used by the officers posted in the various field units/zones, without any authority and in gross violation of the statutory provisions of the State Emblem of India (Regulation WP(C) No.23021/2018 12 / 20 W.P.(C)No.23021 of 2018 11 of Use) Rules, 2007.
13. In Manoj Padmanabhan v. State of Kerala and others [judgment dated 22.01.2021 in W.P.(C)No.19242 of 2014] one of the reliefs sought for was a writ of mandamus commanding the Chief Secretary, Government of Kerala, to prohibit the use of flags and similar insignia by IAS, IFS and such other public officials in their cars, except those permitted by law for the uniformed personnel. The petitioner has also sought for an order directing the Secretary to Government, Transport Department and the Transport Commissioner, Kerala to strictly regulate the use of boards on cars such that it does not cover the registration number plates and it is not used extensively in order to secure a privilege while on roads. In Para.10 of the judgment, the Division Bench of this Court noticed that flags and other insignia are not being used by the public officials except the Constitutional Authorities.
14. In the order dated 09.04.2021, this Court noticed that, despite the specific directions contained in the judgment of this Court dated 28.10.2019, motor vehicles other than those carrying the constitutional authorities and other dignitaries specified in Part I and Part II of Schedule II of the WP(C) No.23021/2018 13 / 20 W.P.(C)No.23021 of 2018 12 State Emblem of India (Regulation of Use) Rules, 2007/ dignitaries specified in clauses (1) to (7) of Paragraph 3.44 of the Flag Code of India, 2002 are being permitted to be used in public place displaying emblems and flags. In most of such vehicles the registration mark is not displayed in the form and manner specified under Rules 50 and 51 of the Central Motor Vehicles Rules, on a licence plate having the size of 500 × 120 mm. Letters, words and symbols other than the registration mark are inscribed or written on the registration plate of such vehicles, in violation of the provisions under sub-regulation (3) of Regulation 36 of the Motor Vehicles (Driving) Regulations, 2017.
15. Justice Verma Committee was constituted by the Government of India, vide Notification No.SO(3003)E dated 23.12.2012 to look into possible amendments of the Criminal Law to provide for quicker trial and enhanced punishment for criminals committing sexual assault of extreme nature against women. The immediate cause for the constitution of the Committee was the brutal gang rape of a young woman in Delhi, in a public transport vehicle, in the late evening of 16.12.2012. Chapter 10 of the report dated 23.01.2013 deals WP(C) No.23021/2018 14 / 20 W.P.(C)No.23021 of 2018 13 with provision of adequate safety measures and amenities in respect of women. After referring to the law laid down by the Delhi High Court in Court on its Own Motion v. Union of India [(2007) 139 DLT 244] and also the law laid down by the Apex Court in Avishek Goenka v. Union of India [(2012) 5 SCC 321] prohibiting the use of black films of any visual transmission of light percentage or any other material upon the safety glasses, windscreens (front and rear) and side glasses of all vehicles throughout the country, the Committee observed as follows in Para.6 of the report;
"6. A cursory glance on any of India's roads at any time of day or night will show that these directions of the Supreme Court are being openly flouted by all and sundry. It saddens the Committee to note that the police forces of this country enforce these directions, and indeed law, only when orders are passed by various courts, and then again, only take action for a few days." (underline supplied)
16. In the order dated 09.04.2021, this Court noticed that, though, the Apex Court in Avishek Goenka [(2012) 5 SCC 321] prohibited the use of black films or any other materials upon the safety glasses, windscreens and side glasses of all vehicles throughout the country, since use of such films and other materials certainly help the criminals to escape WP(C) No.23021/2018 15 / 20 W.P.(C)No.23021 of 2018 14 from the eyes of the police and aids in commission of heinous crimes like sexual assault on women, robberies, kidnapping, etc., even after nearly a decade, the directions issued by the Apex Court are being openly flouted by all. Several vehicles with cooling films pasted on the safety glass, which are even fitted with sliding cloth curtains, are even now permitted to be used in public place and some of such vehicles are seen parked on the side of the road in front of the High Court Building, with 'garlands' hanging on the rear-view mirror fitted on windscreen, in order to identify the political party. The enforcement agencies in the Motor Vehicles Department and the Police are not taking any action against such vehicles.
17. Use of any emblem and display of any flag on a motor vehicle, other than a vehicle carrying the constitutional authorities and other dignitaries specified in Part I and Part II of Schedule II of the State Emblem of India (Regulation of Use) Rules, 2007/clauses (1) to (7) of Paragraph 3.44 of the Flag Code of India, 2002 is legally impermissible. Similarly, flying of official distinguishing flags and display star plates on cars are restricted to senior officers of Indian Army, Indian Air Force, Coast Guard, etc., as specified under the provisions of the WP(C) No.23021/2018 16 / 20 W.P.(C)No.23021 of 2018 15 Naval Ceremonial, Conditions of Service and Miscellaneous Regulations, 1963 and similar provisions made by the Central Government.
18. Many vehicles are seen plying in the State, carrying the name board "Government of India", "Government of Kerala", "Kerala State", "Government Vehicle", etc., to mislead the Police, the Enforcement Officers of the Motor Vehicles Department, etc. by giving an impression that the said vehicles are owned by a Government Department. Persons in such vehicles are pretending as if they are Government servants and they are misusing such name boards to escape from the checking of vehicle by the Police, Enforcement Officers of the Motor Vehicles Department, etc., and to avoid payment of toll at the toll booths. It is the duty of the Police and the Enforcement Officers of the Motor Vehicles Department to keep an eye on such vehicles, subject them to through checking, besides verifying the identity of persons in it, and initiate appropriate proceedings in accordance with law.
19. Several vehicles with such name boards are pasted with cooling films on the safety glass or fitted with sliding cloth curtains. The enforcement agencies in the Motor Vehicles WP(C) No.23021/2018 17 / 20 W.P.(C)No.23021 of 2018 16 Department and the Police are not taking any action against the use of such vehicles on public place. Few images of such vehicles are reproduced hereunder;WP(C) No.23021/2018 18 / 20
W.P.(C)No.23021 of 2018 17
20. As per sub-rule (1) of Rule 108 of the Central Motor Vehicles Rules, 1989 no motor vehicle shall show a red light to the front or light other than red to rear. Some of the vehicles are even fitted with 'backlit name boards' showing red light to WP(C) No.23021/2018 19 / 20 W.P.(C)No.23021 of 2018 18 the front, in violation of the provisions under sub-rule (1) of Rule 108 of the said Rules.
21. Registry to issue a copy of this order to the learned Assistant Solicitor General of India (ASGI). Show the name of the learned ASGI in the cause list.
List on 08.04.2022 at 1.45 pm. Sd/-
ANIL K. NARENDRAN
JUDGE
yd
06-04-2022 /True Copy/ Assistant Registrar
WP(C) No.23021/2018 20 / 20
APPENDIX OF WP(C) 23021/2018
EXT.P5 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF
KL-09/L 8719
EXT.P6 A TRUE COPY OF THE JUDGMENT IN WPC.NO.1015 OF 2018 AND
CONNECTED CASES.
ANNEXURE R3(a) TRUE COPY OF THE DEATAILED INSPECTION REPORTS