Sakeer Hussain K.M vs The State Of Kerala
2022 Latest Caselaw 8757 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
        THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                       WP(C) NO. 19506 OF 2022
PETITIONERS:

    1       VINEESH M.V.,
            AGED 39 YEARS,
            S/O.VIJAYAN M.R., MUTHIRAPARAMBIL HOUSE,
            PAINGARAPPILLY P.O., MULAMTHURUTHY,
            ERNAKULAM DISTRICT,
            PIN - 682314

    2       AMAL GEORGE,
            AGED 36 YEARS,
            S/O.GEORGE M.V., MANAKKAKUDIYIL HOUSE,
            VADAYAMPADI, ERNAKULAM DISTRICT
            PIN - 682308

    3       SIYAS PAREED,
            AGED 35 YEARS,
            S/O.PAREED,
            KOYAMPARAMBIL HOUSE, PERINGALA P.O.,
            KUNNATHUNADU, ERNAKULAM DISTRICT
            PIN - 683565

            BY ADVS.
            BABU S. NAIR
            SMITHA BABU
            P.A.RAJESH
            SHAMSEERA. C.ASHRAF
            R.B.RAJESH
            JINU ANTONY



RESPONDENTS:

    1       THE STATE OF KERALA,
            REPRESENTED BY THE SECRETARY TO GOVERNMENT,
            MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT,
            TRIVANDRUM, PIN - 695001

    2       THE DISTRICT COLLECTOR,
            COLLECTORATE, KAKKANAD,
            ERNAKULAM, PIN - 682030
 WP(C) NO. 19506 OF 2022          -2-



   3        THE DISTRICT POLICE CHIEF,
            KOCHI CITY, ERNAKULAM,
            ERNAKULAM DISTRICT, PIN - 682031

   4        THE DISTRICT POLICE CHIEF,
            ALUVA RURAL, ERNAKULAM DISTRICT, PIN - 683101

   5        THE REGIONAL TRANSPORT OFFICER (ENFORCEMENT),
            REGIONAL TRANSPORT OFFICE,
            KAKKANAD, ERNAKULAM DISTRICT, PIN - 682030

   6        THE REGIONAL TRANSPORT OFFICER,
            REGIONAL TRANSPORT OFFICE,
            MOOVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686661

            BY ADV. SRI.P.SANTHOSH KUMAR, SPECIAL
            GOVERNMENT PLEADER


       THIS   WRIT    PETITION     (CIVIL)    HAVING    COME   UP   FOR
ADMISSION     ON     16.06.2022,     THE     COURT     ON   07.07.2022
DELIVERED THE FOLLOWING:
 WPC.19506/22&19533/22
                              3



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR. JUSTICE AMIT RAWAL
 THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                   WP(C) NO. 19533 OF 2022
PETITIONERS:

    1      SAKEER HUSSAIN K.M.,
           AGED 41 YEARS,
           S/O.MUHAMMED, KAITHAVALAPPIL HOUSE,
           CHANTHIROOR P.O., CHERTHALA,
           ALAPPUZHA DISTRICT,
           PIN - 688547

    2      SHAJI T.S.,
           AGED 47 YEARS,
           S/O.SHAMSUDHEEN, THANATT HOUSE,
           THURAVOOR P.O., CHERTHALA,
           ALAPPUZHA DISTRICT,
           PIN - 688532

    3      PREETHI A.C.,
           AGED 42 YEARS,
           W/O.SIJIMON S., 'NANDANAM',
           KODAMTHURUTHY, KUTHIYATHODU P.O.,
           ALAPPUZHA DISTRICT, PIN - 688533

           BY ADVS.
           BABU S. NAIR
           SMITHA BABU


RESPONDENTS:

    1      THE STATE OF KERALA,
           REPRESENTED BY THE SECRETARY TO GOVERNMENT,
           MOTOR VEHICLES DEPARTMENT,
           GOVERNMENT SECRETARIAT,
           TRIVANDRUM, PIN - 695001

    2      THE DISTRICT COLLECTOR,
           COLLECTORATE, ALAPPUZHA,
 WPC.19506/22&19533/22
                                     4



               ALAPPUZHA, PIN - 688001

    3          THE DISTRICT POLICE CHIEF,
               DISTRICT POLICE OFFICE, CCSB ROAD,
               CIVIL STATION WARD, ALAPPUZHA,
               ALAPPUZHA DISTRICT, PIN - 688012

    4          THE REGIONAL TRANSPORT OFFICER (ENFORCEMENT),
               REGIONAL TRANSPORT OFFICE ,
               ALAPPUZHA, ALAPPUZHA DISTRICT, PIN - 688001

               BY ADV. SRI.P.SANTHOSH KUMAR, SPECIAL
               GOVERNMENT PLEADER


        THIS    WRIT    PETITION     (CIVIL)    HAVING    COME   UP   FOR
ADMISSION        ON    16.06.2022,       THE   COURT     ON   07.07.2022
DELIVERED THE FOLLOWING:
 WPC.19506/22&19533/22
                                  5



                            JUDGMENT

This order of mine shall dispose of two writ petitions

preferred by two different sets of petitioners challenging

an identical notification of the District Collector dated

25.06.2020 and 2.6.2022 restricting the timing of the

tipper lorries/vehicles with tipping mechanism as per the

provisions of Section 115 of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act', for short).

Petitioners in both writ petitions are the owners of mini

lorries or tipper lorries having carriage permits,

equipped with an hydraulic device for unloading.

2. The contention of the petitioners is that

Secretary to Government, State of Kerala has passed an

order dated 15.12.2012 based upon the directions of this

Court restricting the movement of vehicles equipped

with tipping mechanism all over Kerala during the time

period from 8 a.m. to 10 a.m. and from 3p.m. to 5p.m.

Provisions of Section 115 of the Act empowers the State

Government or any authority authorized in this behalf by WPC.19506/22&19533/22

the State Government, if satisfied to restrict the use of

the vehicle. It is clear that the order has to be on the

basis of public interest or public safety or convenience

considering the nature of road or bridge prohibitions or

restrictions. Therefore, there cannot be any general

order passed throughout a District or throughout a State.

Section 138 of the Act authorizes the State Government

to make rules for the purpose of carrying into effect the

provisions under Chapter VIII, accordingly, Kerala Motor

Vehicles Rules were enacted in 1989. As per the said

Rule for carrying out the effect the provisions under

Section 115 of the main Act, the power vested with the

authority is either the State or the Regional Transport

authority and not the District Collector.

3. Mr.Babu S.Nair, learned counsel appearing on

behalf of the petitioners submitted that the vehicles of

the petitioners are mainly used for carrying construction

materials and it can be operated only during day time.

None of the petitioners are operating their vehicles WPC.19506/22&19533/22

during the night time and the restriction of operation of

three hours during day time is totally without logic and

reasoning, which put the petitioners into manifest

injustice in the hike fuel price, road tax etc. Such

decisions have resulted into infringement of the

fundamental rights guaranteed to the petitioners under

Articles 14, 19(1)(g) and 21 of the Constitution of India.

4. On the other hand, Mr.P.Santhosh Kumar,

learned Special Government Pleader appearing on behalf

of the respondents submits that the expression 'state or

authorized authority' used in Section 115 of the Act read

with Rule 339 of the Kerala Motor Vehicles Rules leaves

no manner of doubt that the Government can authorise

the person competent to issue notification by restricting

the movement of the tippers. Same type of notification

was issued way back in 2014 and now on 05.06.2018

whereby the Government had authorised the District

Collector, Pathanamthitta to extend the restriction on

timing of tipper lorries from 8.30 a.m to 10 a.m and from WPC.19506/22&19533/22

3 p.m. to 4.30 p.m. for the safety of the school/college

children in Thiruvalla Municipality as the School/college

hours are from 9 a.m. to 3.30 p.m. Orders have been

passed in the same lines at earlier point of time also, but

it has now been changed though the previous orders on

the same lines and had been in existence for a period of

more than seven and half years.

5. I have heard learned counsel for the parties

and appraised the paper books and there is no force or

merit in the writ petitions.

6. Counsel for the petitioner relied upon the

judgment of the Patna High Court in JSP Projects

Private Limited vs. The Union of India (CWJC

No.4310/2021 dated 25.4.2022) to contend that Chapter

VIII of the Motor Vehicles Act gives the State authority

different kinds of powers to effectively implement

policies and protect their roads. The State Government

has the power of regulating traffic, restricting entry of

certain vehicles at a particular place. Since rule making WPC.19506/22&19533/22

power is not confined to the subject of goods, the

Government can frame rules for the prevention of

danger, injury or annoyance to the public or any person,

or of danger or injury to the property or of obstruction to

traffic. Section 113 of the Act allows the State

Government to prescribe the conditions for issuing

permits for transport vehicles by the State or Regional

Transport Authorities. It can also prohibit the use of

such vehicles in any area or route. Paragraphs 70, 72

and 74 of the judgment reads thus:

"70. The very Chapter VIII under which Section 115 was https://morth.nic.in/sites/default/files/circulars_document /Advisory_regarding_revision_of_safe_axle_1.pdf Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 invoked gives the State Authorities different kinds of power to effectively implement policies and protect their roads. Section 112 (2) gives the State Government the authority to restrict motor vehicle speed in the interest of public safety, considering the nature of the road or bridge. Section 113 empowers the State Government to prescribe conditions for the issue of permits by the State/ Regional Transport Authorities for transport vehicles and to restrict the use of such vehicles on any area or route etc. Section 114 empowers the Motor Vehicle Department or any other person authorized by the State Government to weigh a vehicle within specific parameters as prescribed. The State Government has the power of regulating traffic restricting entry of certain vehicles at a particular place. But did the State do so? No. Why not so? No explanation is forthcoming.

72. Rule making power is not confined to the subject of goods, though under clause (i) to sub-section (2) of Section 138 of MV WPC.19506/22&19533/22

Act, the Government may frame rules generally for the prevention of danger, injury or annoyance to the public or any person, or of danger or injury to the property or of obstruction to traffic. We notice that Chapter VIII, which Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 generally deals with traffic control, also enables the State Government to frame rules (Section 138) in the interest of road safety to regulate certain activities. Significantly, Section 113 of the Act allows the State Government to prescribe the conditions for issuing permits for transport vehicles by the State or Regional Transport Authorities. It may also prohibit the use of such vehicles in any area or route.

74. Elaborating further, Section 115 enables the State Government upon its satisfaction and necessity arising out of interest of public safety and convenience of plying of the vehicle on any road or bridge. The power to prohibit or restrict, subject to such exception and conditions, is regarding-

(a) driving of a motor vehicle; (b) of any specified class; (c) description; (d) use of trailer; (e) in any specified area or specified road. The power to restrict and prohibit, in our considered view, is specific only to a motor vehicle, be it of whatever description, but not goods carried by such vehicle. That power rests only with the State Government/Regional Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 Transport Authority issuing the permit for carriage of goods. The Transport Authority, a creation of the Statute, is an authority independent of the State. Hence, in our considered view, the impugned action is totally contrary to the law and is not sustainable in law."

7. In the facts and circumstances, Government

cannot impose restriction and regulation with regard to

the movement of motor vehicles. Here restriction is

with regard to the movement of tipper lorries. The facts

and circumstances of the judgment cited supra and the WPC.19506/22&19533/22

instant case are not similar and therefore cannot be

applicable to this case.

8. For the sake of brevity, Section 115 of the Act

and Rule 339 of the Motor Vehicle Rules read thus:

"115. Power to restrict use of vehicles - The State government or any authority authorized in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience or because of the nature of any road or bridge may by notification in the official gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notifications, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under Section 116 at suitable places.

Provided that where any prohibition or restriction under this section is to remain in force, for not more than 1 month, notification thereof, in the official gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction.

WPC.19506/22&19533/22

339. Authority to restrict the use of motor vehicles:

The State or Regional Transport Authority shall be competent to prohibit or restrict the use of motor vehicles under the provisions of Section 115 of the Act provided that in the case of any prohibition or restriction deemed necessary solely due to the deteriorated condition of any road or bridge, any officer of the Public Works Department not below the rank of an Executive Engineer who is in charge of such road or bridge shall be competent to impose the prohibition or restrictions."

9. The expression 'State Government or any

authority authorised in this behalf by the State

Government' is used in the Central Act i.e., Section 115

of the Act. The contention of the counsel in the first

blush appeared to be attractive that as per Rule 339 it is

only the State or the Regional Transport Authority. The

said provision do not authorise the District Collector to

issue such orders. But Rule 339 cannot be read in

isolation has to be in conjunction with Section 115 of the

Act which empowers the State Government to authorize WPC.19506/22&19533/22

any authority on behalf of the State Government. By

virtue of the notification of the Government dated

05.06.2018, the District Collector was authorised to issue

such type of directions. Relevant portion of the said

notification reads as under:

"As per the Government order read (1) above, movement of tipper lorries/vehicles using tipping mechanism were prohibited on the roads of the State of Kerala from 9 am to 10 am and from 4 pm to 5 pm.

As per the letter read (2)nd above, the District Collector Pathanamthitta has requested to extend the restriction on timing of tipper lorries from 8.30 am to 10.00 am and from 3.00 pm to 4.30 pm for the safety of school/ college children in the Thiruvalla municipality, as the school/college hours are from 9 am to 3.30 pm.

Government have examined the matter in detail and are pleased to entrust the District Collectors to determine transit time of tipper lorries / vehicles using tipping mechanism under Section 115 of the Motor Vehicles Act, 1988, take into account the safety of the school/ college children and the local situation in each place. If such restriction required for more than one month, a notification to this effect shall be WPC.19506/22&19533/22

published in the Official Gazette. Moreover, publicity shall be made at the local level regarding regulation."

10. In this view of the matter I am of the view that

there is no force or merit. The argument has no

substance. The impugned decisions cannot be interfered

by exercising the power of jurisdiction under Article 226

of the Constitution of India.

Writ petitions are dismissed.

Sd/-

AMIT RAWAL JUDGE vv WPC.19506/22&19533/22

APPENDIX OF WP(C) 19506/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE FIRST PETITIONER

Exhibit P2 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE SECOND PETITIONER

Exhibit P3 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE THIRD PETITIONER

Exhibit4 A TRUE COPY OF NOTIFICATION AS S.R.O.NO.864/2012 OF THE FIRST RESPONDENT DATED, 15-12-2012

Exhibit P5 A TRUE COPY OF THE JUDGMENT IN W.A.NO.105/2012 OF THIS HON'BLE COURT DATED, 18-7-2013

Exhibit P6 A TRUE COPY OF THE NOTIFICATION AS G.O.(P)NO.13/2014/TRAN. DATED, 17-2- 2014(SRO NO.137/2014)

Exhibit P7 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED, 2-6-2022 AS NO.DCEKM/4053/2020-A5

Exhibit P7(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P7 WPC.19506/22&19533/22

APPENDIX OF WP(C) 19533/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE FIRST PETITIONER

Exhibit P2 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE SECOND PETITIONER

Exhibit P3 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE THIRD PETITIONER

Exhibit4 A TRUE COPY OF NOTIFICATION AS S.R.O.NO.864/2012 OF THE FIRST RESPONDENT DATED, 15-12-2012

Exhibit P5 A TRUE COPY OF THE JUDGMENT IN W.A.NO.105/2012 OF THIS HON'BLE COURT DATED, 18-7-2013

Exhibit P6 A TRUE COPY OF THE NOTIFICATION AS G.O.(P)NO.13/2014/TRAN. DATED, 17-2- 2014(SRO NO.137/2014)

Exhibit P7 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED, 25-6-2022 AS NO.DCEKM/2067/2020-DCALP

Exhibit P7(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P7