Dismissed

Shanavas v. Registering Authority

Kerala HC1 Nov 2022WA/1131/2015

Case brief

AI extract

What is this about?

Writ appeals against a common judgment dismissing writ petitions that sought registration of crane-mounted goods carriage vehicles as non-transport vehicles. The court, agreeing with the Division Bench decisions holding that classification depends on the manufacturer's prototype certification and cannot be altered at the owner's will, found no illegality in the Single Judge's view and dismissed th

What the court decided

AI extract

Shanavas Vs Registering Authority — Kerala HC (2022) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 1^ST DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944

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WA NO. 1131 OF 2015

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AGAINST THE JUDGMENT IN WPC 30028/2014 OF HIGH COURT OF KERALA DATED 13.3.2015

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APPELLANT/PETITIONER:

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SHANAVAS

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S/O. MOIDEENKUTTY, THALATHODIKA HOUSE, KAVANUR P.O., SOUTH PUTHALAM, MALAPPURAM DISTRICT.

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BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.

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RESPONDENT/RESPONDENT:

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REGISTERING AUTHORITY, REGIONAL TRANSPORT OFFICE, MALAPPURAM DISTRICT-676 505.

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BY ADVS. SENIOR GOVERNMENT PLEADER SRI.TEKCHAND

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH WA.1231/2015, 1232/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 1^ST DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944

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WA NO. 1231 OF 2015

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AGAINST THE JUDGMENT IN WPC 14108/2012 OF HIGH COURT OF KERALA DATED 13.3.2015

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APPELLANT/PETITIONER:

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ABDUSSALAM, S/O ABOOBACKER HAJI, KURUKKOLI HOUSE, THALAKKADATHOOR PO, MALAPPURAM DIST 676 103 BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.

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RESPONDENT/RESPONDENT:

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REGISTERING AUTHORITY SUB REGIONAL TRANSPORT OFFICE, TIRUR, MALAPPURAM DIST 679 577

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ADV. TEK CHAND, SR.GOVT.PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH WA.1131/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 1^ST DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944

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WA NO. 1232 OF 2015

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AGAINST THE JUDGMENT IN WPC 28773/2011 OF HIGH COURT OF KERALA DATED 13.3.2015

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APPELLANT/PETITIONER:

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ABDUSSALAM, S/O.ABOOBACKER HAJI, KURUKKOLI HOUSE, THALAKKADATHOOR P.O.,, MALAPPURAM DISTRICT -676 103.

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BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.

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RESPONDENTS:

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1 REGISTERING AUTHORITY SUB REGIONAL TRANSPORT OFFICE,, TIRUR, MALAPPURAM DISTRICT, PIN 679 577.

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2 THE TRANSPORT COMMISSIONER THIRUVANANTHAPURAM 695001

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3 THE PRINCIPAL SECRETARY TO GOVERNMENT MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, PARLIAMENT STREET, NEW DELHI 110001

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BY ADV. TEK CHAND, SR.GOVT.PLEADER SRI.MANU S., DSG OF INDIA

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH WA.1131/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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JUDGMENT

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[W.A.Nos.1131/2015, 1231/2015 & 1232/2015] Dated this the 1^st day of November 2022

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S.MANIKUMAR, C.J.

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Since the issues involved in these writ appeals are common, they are being disposed of by this common judgment.

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The issue involved in these writ appeals is as to whether the vehicles of the appellants are eligible to be classified as non transport vehicles. These three writ appeals are filed against the common judgment dated 13.3.2015 in W.P.(C)Nos.30028/2014, 14108/2012 and 28773/2011.

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Short facts leading to the filing of these writ appeals are as under:

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The three writ petitions were with respect to the classification of a crane mounted vehicle as a nontransport vehicle. W.P.(C).No.28773 of 2011 deals with a Bolero Camper SCXL Flat Bed BS3 2WD vehicle and W.P.

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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(C).No.30028 of 2014 concerns a Mahindra Bolero Maxi Truck; both of which are classified as “Light Motor Vehicle Goods Carriage Trucks” by the manufacturer according to the prototype classification. Similar is the case of Tata LPT 909 EX2 vehicle, which is the subject matter of W.P. (C).No.14107 of 2012. The Bolero vehicles have a seating capacity of two, with an open platform for carriage of goods. The Tata vehicle has a seating capacity of three, again with an open plat-form for carriage of goods. According to the appellants, they have mounted a mechanism in the open platform intended for carriage of goods and submitted that as per the notification issued under sub-section (4) of Section 41 of the Motor Vehicles Act, 1988, as S.O. No.1248(E) dated 05.11.2004, the vehicles are to be classified as a 'Non-Transport Vehicle'.

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After considering the rival contentions and the facts and circumstances of the case, by a common judgment dated 13.3.2015 in W.P.(C)Nos.30028/2014 and connected cases, writ court dismissed the writ petitions, which reads thus:

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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“4. The aspect of registration has to be looked at in the background of the provisions of the Act of 1988. The Act of 1988 does not provide for a registration of a vehicle as “Non-Transport Vehicle”. Any vehicle which is not a transport vehicle would be a non-transport vehicle, for e.g., Light Motor Vehicle, which is used for private use. This is how the Central Motor Vehicles Rules, 1989 specify the category of non-transport vehicles. The counter affidavit of the State also indicates that the notification relied on by the petitioner, is with respect to the original prototype as approved by the Automobile Association of India and manufactured as a Crane mounted vehicle, Tow Truck, Breakdown Van and Recovery Vehicle. Hence, an alteration made by the purchaser on a vehicle produced by the manufacturer as a 'Goods Carriage Truck' would be a Transport Vehicle as per the MV Act of 1988. On conversion or alteration, the vehicle does not cease to be a 'Goods Carriage Truck'.

¶68

In the present cases, all the vehicles are Goods Carriage Vehicles and there can be no registration effected as a Non-Transport Vehicle, since a Goods Carriage vehicle comes within the definition of “Transport Vehicle”. The definition of “Goods Carriage” and “Transport Vehicle” are extracted hereunder:

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“S.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”.

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“S.2(47) “Transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle”.

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The vehicle being manufactured solely for the carriage of goods and the same being categorised as a “Goods Carriage” vehicle, it cannot be classified as a “NonTransport Vehicle”. The alteration being not permissible under Section 52 also stands against the petitioners.

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The writ petitions would stand dismissed. No costs.”

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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In appeal, various contentions are raised by the appellants against the common impugned judgment. According to the appellants, no reason had been assigned by the respondent while refusing to register the vehicles as a non transport vehicle. Appellants contended that the Transport Commissioner has intimated that about 1743 vehicles have been registered as Non-Transport Vehicle, which are Crain mounted recovery vans and has also categorically asserted that the conversion of the goods vehicle as recovery van/Crane Mounted vehicle will not attract the provisions of Section 52 of the Motor Vehicles Act. In similar cases, other persons have been granted permanent registration to their Crain mounted vehicle as non transport category. Therefore, the refusal to register the vehicles of the appellants as non transport vehicle is discriminatory. Therefore, appellants sought for interference of this court in the matter.

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Mr.Tek Chand, learned Senior Government Pleader submitted that the issue raised in the appeals is

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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covered against the appellants by a Division Bench judgment of this court in Hassan Koya v. Transport Commissioner reported in 2015 (1) KLT 916 in the following manner:

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“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 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.

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Chapter III of CMV Rules, prescribes the particulars to be submitted for registration of a

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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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 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.

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In all these cases, the request of the petitioners is to classify the vehicle as a nontransport 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

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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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.

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The issue to be decided is whether the Registering Authority can register a vehicle, which is certified by the manufacturer as a goods vehicle, as a non-transport vehicle based on the use to which the owner of the vehicle intends to use it.

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Let us now advert to the definition of a transport vehicle and the different classes of vehicles coming within the said meaning.

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Section 2(47) : 'transport vehicle' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;

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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;

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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;

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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;

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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

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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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;

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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 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.

¶100

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.

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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 owner of the vehicle. In Cheriyan's

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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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 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

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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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.

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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 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.

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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

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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issued by the manufacturer and the notification if any issued under section 41(4) of the Act.

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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 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 VX2WD. 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.

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It is therefore clear from the aforesaid documents that when a particular model vehicle is

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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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 cannot be changed.

¶118

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.

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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.

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A reference to the definition of light motor 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

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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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.”

¶124

This court’s attention has also been drawn to yet another Division Bench decision in Vinu Vincent v. Additional Registering Authority reported in 2020 (3) KLT 547 wherein it is held thus:

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We agree with the learned Single Judge that the subject matter is squarely covered by the judgment in Hassan Koya. In Hassan Koya the question raised and decided was whether the Registering Authority can register a vehicle 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 put it to. A batch of appeals arose for consideration, in which the type of vehicles classified by the manufacturer and shown as 'Goods & Passenger vehicle, Normal Control' were sought to be registered as a non-transport vehicle while the classification as per the MV Act specifically included vehicles adapted for carriage of goods as transport vehicles. After adverting to the various definitions as found in the MV Act, the learned Division Bench held that if a motor vehicle is adapted for carriage of goods, it falls within the meaning of a goods carriage vehicle and would, hence, be a transport vehicle as defined under the Act. The certification issued by the manufacturer in accordance with the prototype approval obtained from the competent authority cannot be differed from and the Registering Authority has no discretion in the matter.

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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The Division Bench in Hassan Koya specifically observed that the Central Government has the power under Section 41(4) of the Act to specify by notification in the Official Gazette; the type of vehicle to be indicated in the Registration Certificate, having regard to the design, construction and use of motor vehicle and it was held that there is no such notification brought out by the Central Government. It is in this context we have to look at the notification relied on by the appellant. Identical Exhibit P11 and P12, produced in the writ petitions, is a notification issued under Section 41(4). It categorizes 'Tow Trucks, Breakdown Van and Recovery Vehicles' as 'nontransport vehicles'. But, that is not to say that any vehicle, the prototype for which has been approved as a goods carriage; can be converted into a tow truck and used as such, being registered as a non-transport vehicle. The notification cannot run counter to the specifications in the statute. The power under Section 41(4) only enables the Central Government to prescribe, by notification, the other particulars required to be included in the Certificate of Registration and also specify the type of the motor vehicle. It cannot run counter to the definitions of the various categories of vehicles as provided under Section 2; nor can the prototype approval be differed from and a vehicle categorized as one type, registered as another. The definition of 'transport vehicle' includes a goods carriage vehicle and the prototype approval specifically requires the body to be built on the chassis in accordance with the specification so as to load goods on the body built over the chassis. The vehicle cannot be altered or modified at the will of the purchaser/owner to adapt it for other use. Hassan Koya held that the use or intention cannot decide the particulars to be entered in the Registration Certificate.

¶129

The decision in a batch of writ petitions as seen at Exhibit R1(g) produced in the writ petition from which W.A.No.685 of 2018 arises, is squarely on the point. Exhibit R1(g) judgment dealt with two types of vehicles, one having a seating capacity of two and the other having a seating capacity of 3; both with

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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open platform on the rear over the chassis for carriage of goods. The very same notification produced as Exhibits P11 and P12 were referred to therein. It was contended that though the prototype classification is 'goods carriage truck', the registration has to be on the basis of the intention of the owner of the vehicle. The intention was projected to be use as a crane mounted vehicle/breakdown van/recovery van. Reliance was placed on Hassan Koya to find that the intention of the user is not a relevant aspect for registration. It was also held that sub-section (4) of Section 41 does not confer power on the Central Government to specify the type of vehicle on the intended use. The power is one enabling specification in accordance with the 'designed construction and use'. The use cannot deviate from the design and construction at the will of the purchaser/owner.

¶133

In both the afore-cited decisions of this Court the issue was on the question of registration of transport vehicle, as a non-transport vehicle, which issue was projected only on the lesser tax effect for the latter. There is yet another legal impediment in registering the appellant's vehicle as a 'non-transport vehicle'. As we noticed, the manufacturer has classified the vehicle as 'N1' category as per the CMVR Certificate and the type indicated is 'goods carrier'. This comes squarely within the definition under Rule 2(p) of the Central Motor Vehicles Rules, 1989, which reads as follows:

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“(p) 'Category N1' means a motor vehicle used for carriage of goods and having a Gross Vehicle Weight not exceeding 3.5 tonnes”.

¶135

A goods carriage vehicle is a transport vehicle as per Section 2(47) of the M.V. Act.

¶136

In this case, what is projected is not only the question of registration as a transport vehicle, but the very denial of registration as a tow truck/recovery van as has been ordered by the

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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Registering Authority. It has been held that the alteration made does not conform to the prescriptions of the MV Act and the prototype approval granted by the Automobile Research Association of India, as obtained by the manufacturer. In this context, the decision of the Hon'ble Supreme Court in K.Jayachandra assumes significance. The aforesaid judgment arose from a Division Bench judgment of this Court, authored by one of us [K.Vinod Chandran,J.]. The issue was with respect to registration of a vehicle, the chassis of which was purchased from the manufacturer and a body built on it as permissible under the MV Act and Rules. The challenge before this Court was against the Circular issued by the Transport Commissioner requiring the Regional Transport Authorities to deny registration to those vehicles constructed in violation of the Prototype Test Certificate and which are built not in strict compliance with the specifications given by the manufacturer. The Division Bench of this Court held that Rule 126 of the Central Rules does not fetter the power of the Regional Transport Authorities to exercise their discretion in terms of the Kerala Rules, in particular Rules 96, 103 and 261.

¶140

The Hon'ble Supreme Court reversed the decision of this Court, finding that the Division Bench had failed to give effect to the provisions contained in Section 52(1) of the MV Act and has laid emphasis on the Rules. The amendment made to Section 52 in the year 1994 was specifically referred to and it was held so in paragraph 29:

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“29. The object and the clear intent of amended Section 52 is that the vehicle cannot be so altered that the particulars contained in the certificate of registration are at variance with those “originally specified by the manufacturer”. The manufacturer issues sale certificate in Form 21 which has been framed under Rule 47(1)(a) of the Central Rules. Rule 47(1)(a) is extracted hereunder:

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“47. Application for registration of motor vehicles .—(1) An application for registration of a

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W.A.Nos.1131/2015, 1231/2015 & 1232/2015

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motor vehicle shall be made in Form 20 to the registering authority within a period of seven days from the date of taking delivery of such vehicle, excluding the period of journey and shall be accompanied by—

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(a) sale certificate in Form 21;”

¶147

After extracting Form 20 and 21, it was authoritatively held so in paragraph 33 as herein below:

¶148

“33. The vehicle has to comply with the provisions of the Rules contained in Chapter V of the Central Rules as provided in Rule 92(1). Rule 92(1) has to be read as subservient to the provisions contained in Section 52 of the Act and what is prohibited therein to allow the same is not the intendment of the Rules contained in the Chapter. Various provisions in Chapter V are additional safeguards to what is prohibited in Section 52(1), that is to say, what has been specified originally by the manufacturers and once that has been entered in the particulars in the certificate of registration, cannot be varied. No vehicle can be altered so as to change original specification made by the manufacturer. Such particulars cannot be altered which have been specified by the manufacturer for the purpose of entry in the certificate of registration. It is provided in Rule 126 of the Central Rules, prototype of every type of vehicle is subject to test. The provisions of Rule 126 intend for fitness of vehicle to be plied on the road by the agencies which are specified therein. Approval and certification of motor vehicles for compliance to these rules shall be in accordance with the AIS:017-2000. Rule 93 deals with overall dimensions of the motor vehicles such as width, length, height, overhang, etc. No doubt about it that the vehicle has to be in conformity with the Rules also but Rules cannot be so interpreted so as to permit the alteration as prohibited under Section 52(1) of the Act. The alteration under the Rules is permissible except as prohibited by Section 52. The specification of the Rules would hold good with

¶149

W.A.Nos.1131/2015, 1231/2015 & 1232/2015

¶150

:: 21 ::

¶151

respect to the matters as not specifically covered under Section 52(1) and not specified therein by the manufacturer. The emphasis of Section 52(1) is not to vary the “original specifications by the manufacturer”. Remaining particulars in a certificate of registration can be modified and changed and can be noted in the certificate of registration as provided in Sections 52(2), (3) and (5) and the Rules. Under Section 52(5), in case a person is holding a vehicle on a hire-purchase agreement, he shall not make any alteration except with the written consent of the original owner.

¶152

[underlining by us for emphasis]

¶153

Hence, there could be no alteration made in variance to the original specification by the manufacturer. As was noticed, the vehicle has been designed and manufactured in accordance with the prototype, which permits carriage of goods in a platform or a suitable body constructed on the chassis of the vehicle behind the driver's compartment, which allows seating to two persons including the driver. The crane mounted vehicle, which is intended to carry a broken down vehicle, was not the intention for which the vehicle has been designed and constructed. The various aspects pointed out by the authority as we have noticed hereinabove, are perfectly in order and there could be no such alteration made from that available in the Prototype Test Certificate. The specifications of the manufacturer as available in the CMVR Certificate produced as Exhibit P2 has been deviated from in making an alteration quite contrary to the design approved by the competent authority. We conclude that the alteration made would not enable registration as a non-transport vehicle and in addition, would result in the registration itself being declined, as has been rightly done by the authorities. We find absolutely no reason to interfere with the decision of the authorities, as affirmed by the impugned judgment.”

¶154

W.A.Nos.1131/2015, 1231/2015 & 1232/2015

¶155

:: 22 ::

¶156

In the light of the above legal position to which we are in respectful agreement, we find no illegality or irregularity in the view taken by the learned Single Judge. Therefore, no interference of this court is required to the judgment of the learned Single Judge. Appeals fail. Accordingly, writ appeals are dismissed.

¶157

Pending interlocutory applications, if any, shall stand closed.

¶158

SD/S.MANIKUMAR CHIEF JUSTICE

¶159

SD/SHAJI P. CHALY JUDGE

¶160

jes

Shanavas v. Registering Authority

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Shanavas v. Registering Authority

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