Kerala High Court
Suo Motu vs State Of Kerala on 21 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 21st day of October 2022 / 29th Aswina, 1944
SSCR NO. 20 OF 2021
IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - SABARIMALA SPECIAL COMMISSIONER
REPORT - SM NO.21/2021 - REPORT REGARDING THE FUNCTIONING OF SAFE ZONE PROJECT,
SABARIMALA - SUO MOTU PROCEEDINGS INITIATED - REG:
PETITIONER:
SUO MOTU
RESPONDENTS:
1. STATE OF KERALA
REPRESENTED BY THE SECRETARY/JOINT SECRETARY TO GOVERNMENT,
TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIATE,
THIRUVANANTHAPURAM-695 001.
2. TRANSPORT COMMISSIONER
(MOTOR VEHICLE DEPARTMENT), TRANSPORT COMMISSIONERATE,
IIND FLO0R, TRANS TOWER, THYCADU P.O., VAZHUTHACADU,
THIRUVANANTHAPURAM-695 014.
3. THE STATE POLICE CHIEF
POLICE HEAD QUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM-695 010.
4. THE DISTRICT POLICE CHIEF
PATHANAMTHITTA-689 645.
5. THE TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, NANTHANCODE, KAWDIAR POST,
THIRUVANANTHAPRUAM-695 003.
*ADDL.R6 & R7 iMPLEADED
6. THE UNION OF INDIA,
REPRESENTED BY SECRETARY (RT&H),
MINISTRY OF ROAD TRANSPORT & HIGHWAYS, PARIVAHAN BHAVAN,
PARLIAMENT STREET, NEW DELHI-110 001
7. THE MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY,
GOVERNMENT OF INDIA, REPRESENTED BY SECRETARY (E & IT),
ELECTRONICS NIKETAN, 6, CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 003
*ARE SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENTS 6 AND 7
AS PER ORDER DATED 14/10/2022 IN SSCR 20/2021
*ADDL.R8 & R9 IMPLEADED
8. SUDHEER A.,
(THE PRESIDENT), TOURIST BUS FEDERATION, THIRUVANANTHAPURAM
REG.NO.TVM/TC/683/2019, HAVING OFFICE AT: ASWATHY NILAYAM
ANNOOR, THIRUMALA P.O., THIRUVANANTHAPURAM, PIN-695006.
9. SHAKKEER
(THE SECRETARY), TOURIST BUS FEDERATION, THIRUVANANTHAPURAM
REG.NO.TVM/TC/683/2019, HAVING OFFICE AT: ASWATHY NILAYAM
ANNOOR, THIRUMALA P.O., THIRUVANANTHAPURAM, PIN-695006.
*ARE IMPLEADED AS ADDL.RESPONDENTS 8 & 9 AS PER ORDER
DATED 14/10/2022 IN IA.NO.2/2022 IN SSCR.NO.20/2021
*ADDL.10 TO 12 IMPLEADED
10. M/S.CONTRACT CARRIAGE OPERATORS ASSOCIATION
REG.NO.TVM/TC/1204/18, NALANDA BHAVAN
KARYAVATTOM, THIRUVANANTHAPURAM - 695 581
11. MILTON LOPEZ
MANAGING PARTNER, M/S.RANI TRAVELS, XL/1575
NORTH RAILWAY STATION ROAD, ERNAKULAM DISTRICT-682018
12. ROYSON JOSEPH
S/O.JOSEPH, M/S.ROYAL TOURS & TRAVELS
PADICKAPARAMBIL HOUSE, RAIL ROAD, ALUVA
ERNAKULAM DISTRICT - 683 101.
*ARE IMPLEADED AS ADDL.RESPONDENTS 10 TO 12 AS PER ORDER
DATED 14/10/2022 IN IA.NO.3/2022 IN SSCR.NO.20/2021
*ADDL.R13 & R14 IMPLEADED
13. THE SECRETARY TO GOVERNMENT,
TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001
14. THE KERALA STATE ROAD TRANSPORT CORPORATION,
REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT,
THIRUVANANTHAPURAM -695023
*ARE SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENTS 13 AND 14
VIDE ORDER DATED 20/10/2022 IN SSCR 20/2021
BY SRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD FOR R5
BY SRI.P.SANTHOSH KUMAR, SPECIAL GOVERNMENT PLEADER FOR R2
BY SRI.S.RAJ MOHAN, SENIOR GOVERNMENT PLEADER FOR R1,3 & 4
BY SRI.N.RAGHURAJ, AMICUS CURIAE FOR SABARIMALA SPECIAL
COMMISSIONER
BY SRI.S.MANU, DEPUTY SOLICITOR GENERAL OF INDIA FOR
ADDL.R6 & R7
BY M/S.B.A.ALOOR, K.P.PRASANTH, VISHNU DILEEP, T.S.KRISHNENDU
ARCHANA SURESH and EMIL SHAJU, ADVOCATES FOR ADDL.R8 AND R9
BY SRI.G.HARIHARAN, ADVOCATES FOR ADDL.R10 TO 12.
HAVING PERUSED THE FINAL ORDER DATED 10/01/2022 AND ADDITIONAL
ORDERS DATED 26/05/2022, 04/07/2022, 08/07/2022, 13/07/2022,
03/08/2022, 23/08/2022, 30/08/2022, 06/10/2022, 10/10/2022, 14/10/2022
AND 20/10/2022 AND THE DIRECTIONS CONTAINED THEREIN AND ALSO HAVING
PERUSED THE SUBMISSIONS MADE BY THE LEARNED SENIOR GOVERNMENT
PLEADER, LEARNED SPECIAL GOVERNMENT PLEADER AND THE LEARNED DEPUTY
SOLICITOR GENERAL FOR THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, THE
COURT ON 21/10/2022 PASSED THE FOLLOWING.
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
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SSCR No.20 of 2021
------------------------------------------------------
Dated this the 21st day of October, 2022
ORDER
Anil K. Narendran, J.
This Report filed by the Special Commissioner, Sabarimala,
regarding the functioning of Safe Zone Project, Sabarimala, by the
Motor Vehicles Department was disposed of by the order dated
10.01.2022 [2022 SCC OnLine Ker 1105 : CDJ 2022 Ker HC 203]
with the directions contained in paragraph 120 of the said order. The
2nd respondent Transport Commissioner and the 3rd respondent State
Police Chief were directed to file action taken reports before this Court
on or before 01.07.2022, which was directed to be placed before the
Bench on 11.07.2022. Registrar General was directed to forward a
copy of the order dated 10.01.2022 to the Secretary, Supreme Court
Committee on Road Safety, for information.
2. In the order dated 26.05.2022 [2022 SCC OnLine Ker
2906 : 2022 (4) KLT 934] this Court noticed that, despite the
directions contained in the order dated 10.01.2022, the Enforcement
Officers under the 2nd respondent Transport Commissioner and the
Police Officers under the 3rd respondent State Police Chief are not
taking earnest efforts to ensure strict enforcement of the provisions
under the Motor Vehicles Act, 1988, the Central Motor Vehicles Rules,
SSCR No.20 of 2021
1989, the Kerala Motor Vehicles Rules, 1989 and the Motor Vehicles
(Driving) Regulations, 2017, taking note of the law laid down in the
decisions referred to in the said order dated 10.01.2022. After the
order of this Court dated 10.01.2022, in motor accidents involving
contract carriages, the passengers in those vehicles and other road
users sustained serious/fatal injuries. Since the use of contract
carriages on public place, flouting the safety standards prescribed in
AIS-008 and AIS-052 (Rev.1) 2008, etc. is posing potential threat to
the safety of the passengers and other road users, the learned
Assistant Solicitor General of India was requested on 26.05.2022, to
address arguments on behalf of the Ministry of Road Transport and
Highways.
3. The orders of this Court dated 06.10.2022 [2022 SCC
OnLine Ker 4898], 10.10.2022 and 14.10.2022 shall be read as part
of this order.
4. In the orders dated 06.10.2022 [2022 SCC OnLine Ker
4898] and 10.10.2022, we noticed that, in view of the directions
contained in the order dated 10.01.2022 [2022 SCC OnLine Ker
1105], which was reiterated in the order dated 26.05.2022 [2022
SCC OnLine Ker 2906], the 2nd respondent Transport Commissioner,
through the Enforcement Officers in the Motor Vehicles Department
and the 3rd respondent State Police Chief, through the District Police
Chief of the concerned Districts are duty bound to take necessary steps
SSCR No.20 of 2021
to prevent the use of contract carriages and other transport vehicles
on public place, flouting the safety standards prescribed in AIS-
008/AIS-052 (Rev.1) 2008 and also the standards prescribed in
relation to control of noise, etc. They are duty bound to take necessary
steps to prevent the use of contract carriages and other transport
vehicles on public place, exhibiting writings, advertisements, graphics,
figures, etc. with the sole object to invite public attention and to
promote the contract carriage service, causing distraction to the
drivers of other vehicles and also cyclists and pedestrians on public
road; since use of such vehicles in public place, flouting the standards
in relation to road safety, is likely to endanger the safety of the
passengers of such vehicles and also other road users.
5. In the order dated 10.10.2022, we found that a total
prohibition on the use of contract carriages violating the safety
standards prescribed in AIS-008/AIS052(Rev.1) 2008 and also the
standards prescribed in relation to control of noise, is highly essential
since plying of such vehicles on public place is posing threat to the
safety of the passengers in those vehicles, and also other road users.
In the said order, we made it clear that, a mere removal of
unauthorised fittings in a contract carriage, without completely
removing the additional wiring and other alterations made in the bus
body, passenger compartment and driver cabin cannot make that
vehicle as one, which complies with the provisions under the Motor
SSCR No.20 of 2021
Vehicles Act and the Rules and Regulations made thereunder for the
purpose of grant of Certificate of Fitness. The bus body, the passenger
compartment and the driver cabin of that contract carriage will have
to be maintained in the appropriate manner of its construction and
maintenance, as per the statutory requirements in the Central Motor
Vehicles Rules/Kerala Motor Vehicles Rules/AIS-008/AIS-052 (Rev.1)
2008, etc., and then only that vehicle can be treated as one which
complies with the provisions of the Motor Vehicles Act and the Rules
and Regulations made thereunder, for the purpose of grant of
Certificate of Fitness, which is the statutory mandate of sub-rule (1)
of Rule 92 of the Central Motor Vehicles Rule and sub-rule (1) of Rule
249 of the Kerala Motor Vehicles Rules. Therefore, the Fitness
Certificate of such a contract carriage has to be suspended with
immediate effect, for a period of three months, within which time the
owner of that vehicle can be directed to make that vehicle as one which
complies with the requirements of the Motor Vehicles Act and the Rules
and Regulations made thereunder, in all respects. After proper
inspection, on being satisfied that the vehicle complies with the
aforesaid requirements, in all respects, the competent authority can
grant Certificate of Fitness to that vehicle. The driving licence of the
driver who had driven such a contract carriage in public place has to
be suspended for a period of three months, as per the statutory
mandate of sub-section (2) of Section 190, which shall be forwarded
SSCR No.20 of 2021
to the licensing authority for disqualification or revocation proceedings,
under Section 19 of the Act. Stringent action has to be taken against
the owner and driver of contract carriages or other transport vehicles,
which are used in public place after tampering with speed governor
installed as provided under Rule 118 of the Central Motor Vehicles
Rules. Stringent action has also to be taken under Section 185 of the
Motor Vehicles Act, once it is found that the contract carriages or other
transport vehicles were driven by a drunken person or by a person
under the influence of drugs.
6. As per clause (xviii) of sub-section (2) of Section 92 of the
Motor Vehicles Act, a State Government may make rules for
regulating the painting or marking of transport vehicle and display of
advertising matters thereon, and in particular prohibiting the painting
or marking of transport vehicles in such colour or manner as to induce
any person to believe that the vehicle is used for the transport of mails.
In exercise of the rule making power under the said clause, the State
Government made Rule 191 of the Kerala Motor Vehicles Rules, which
deals with prohibition of advertisement or writing on vehicles; and
Rule 264, which deals with paintwork or varnish.
7. Sub-rule (1) of Rule 191 of the Kerala Motor Vehicles Rules
provides that, no advertising device, figure or writing shall be
exhibited on any transport vehicle, save as may be specified by the
State or Regional Transport Authority by general or specific order, and
SSCR No.20 of 2021
on payment of the fee prescribed in sub-section (1), for a period of
one year or part thereof for each vehicle. The Motor Vehicles Rules
framed by other States contain provisions similar to Rule 191 of the
Kerala Motor Vehicles Rules. As per Rule 361 of the Andhra Pradesh
Motor Vehicles Rules, no advertising device, figure or writing shall be
exhibited on any public service vehicle save as may be specified by the
Regional Transport Authority or the State Transport Authority, as the
case may be, by general or specified order. As per Regulation 26 of
the Motor Vehicles (Driving) Regulations, which deals with bar on
traffic impairment, unless validly permitted by the competent authority
under the Motor Vehicles Act or the rules made thereunder, no driver
shall display any advertisement on the vehicle.
8. In Hindustan Petroleum Corporation Ltd.,
Kochi v. State of Kerala [2016 (3) KHC 693 : AIR 2016 Ker
187], in the context of Rule 191 of the Kerala Motor Vehicles Rules,
this Court held that the said Rule provides for imposition of fee not
only for advertisements, but also for figures or writings. After referring
to the provisions under Rule 134 of the Central Motor Vehicles Rules,
which deals with 'emergency information panel' for goods carriages
used for transporting any dangerous or hazardous goods, this Court
held that the writings contained in tanker trucks operated by
Hindustan Petroleum Corporation Limited by exhibiting its name in
large and bold letters, even though has the characteristics of imposing
SSCR No.20 of 2021
with fee as prescribed under Rule 191 of the Kerala Motor Vehicles
Rules, in view of the stipulations and prescriptions contained under
Rule 134 of the Central Motor Vehicles Rules, are not liable to be
imposed with fee for such writings made on the tanker trucks.
However, this Court made it clear that, if any inscriptions or writings
are made on such transport vehicles inviting public attention for the
products of the petitioner company, Rule 191 of the Kerala Motor
Vehicles Rules will come into play.
9. Section 74 of the Motor Vehicles Act deals with grant of
contract carriage permits. Section 84 of the said Act deals with general
conditions attaching to all permits. As per clause (g) of Section 84,
the name and address of the operator shall be painted or otherwise
firmly affixed to every vehicle to which the permits relates on the
exterior of the body of that vehicle on both sides thereof in a colour or
colours vividly contrasting to the colour of the vehicle centred as high
as practicable below the window line in bold letters. Similarly, the
particulars enumerated in clauses (a) to (g) of Rule 93 of the Kerala
Motor Vehicles Rules have to be legibly painted on every transport
vehicle, save in the case of a motor cab or any motor vehicle belonging
to the State or Central Government, on the left hand side of the
vehicle, in English letters and numerals, each not less than two and a
half centimetres square. In the case of educational institution bus and
private service vehicle, Rule 291 of the Kerala Motor Vehicles Rules
SSCR No.20 of 2021
provides that the name of the institution shall be written conspicuously
at the top of the front and rear ends and on the left side of the body
of the vehicle and the writings shall be horizontal.
10. Rule 264 of the Kerala Motor Vehicles Rules deals
with paintwork or varnish. As per Rule 264, the paintwork or varnish
of every transport vehicle shall be maintained in a clean and sound
condition and in accordance with the specifications, if any, laid down
by the State or Regional Transport Authority. The Motor Vehicles Rules
framed by other States contain provisions similar to Rule 264 of the
Kerala Motor Vehicles Rules. As per Rule 326 of the Andhra Pradesh
Motor Vehicles Rules, every public service vehicle and all parts
thereof, including paintwork or varnish, shall be maintained in a clean
and sound condition and the engine mechanism and all working parts
in reliable working order.
11. In Jijith and others v. State of Kerala and
others [2019 (1) KHC 463] this Court found that the paintwork or
varnish of every transport vehicle shall be maintained in a clean and
sound condition, which is the mandate of Rule 264 of the Kerala Motor
Vehicles Rules. If the State or Regional Transport Authority has laid
down any specifications like uniform colour scheme, the paintwork of
the transport vehicle shall be in accordance with that specifications.
Any figure or writing exhibited on the transport vehicle, other than the
name and address of the operator to be painted or otherwise firmly
SSCR No.20 of 2021
affixed as per clause (g) of Section 84 of the Motor Vehicles Act; the
'emergency information panel' provided under Rule 134 of the Central
Motor Vehicles Rules for goods carriages used for transporting any
dangerous or hazardous goods; the particulars enumerated in clauses
(a) to (g) of Rule 93 of the Kerala Motor Vehicles Rules, painted on the
body of the vehicle; the name of the institution exhibited in educational
institution bus and private service vehicle as per Rule 291 of the Kerala
Motor Vehicles Rules; etc., falls within the scope of Rule 191 of the
Kerala Motor Vehicles Rules. Any such figure or writing exhibited on
the transport vehicle with an object to invite public attention and to
promote the contract or stage carriage service of the operator will
attract the provisions of Rule 191 of the Kerala Motor Vehicles Rules.
The exhibition of writings and figures on vehicles by its very nature
are intended to attract attention, which would cause distraction to the
drivers of other vehicles, cyclists and even pedestrians on the public
road. Driver distraction is one of the major causes of road accidents,
which is a situation where the attention of the driver is diverted to any
other forms of activities, which may affect the concentration of driving
activity as well as the safety of the passengers and others on public
road. Earning of revenue by the State by the levy of fee under Rule
191 of the Kerala Motor Vehicles Rules or generation of some
additional income by the operator of the transport vehicle should not
be at the cost of public safety. Therefore, this Court held
SSCR No.20 of 2021
that, exhibition of writings or figures with the sole object to invite
public attention and to promote the contract or stage carriage
service should not be permitted by levying fee under Rule 191 of the
Kerala Motor Vehicles Rules.
12. In Jijith [2019 (1) KHC 463] this Court held that the
paintwork of every transport vehicle shall be maintained in a clean and
sound condition, as contemplated by Rule 264 of the Kerala Motor
Vehicles Rules. While approving the matter intended to be exhibited
on the vehicle, in exercise of the powers under sub-rule (2) of Rule
191 of the Kerala Motor Vehicles Rules, the State or the Regional
Transport Authority shall ensure that it does not cause distraction to
the drivers of other vehicles and also cyclists and pedestrians on public
road. No approval under sub-rule (2) of Rule 191 shall be granted for
exhibition of any advertisements, writings, figures, graphics, etc. on
the body of a transport vehicle, at places intended for exhibiting the
name and address of the operator as per clause (g) of Section 84 of
the Motor Vehicles Act; the 'emergency information panel' as per Rule
134 of the Central Motor Vehicles Rules for goods carriages used for
transporting any dangerous or hazardous goods; the particulars
enumerated in clauses (a) to (g) of Rule 93 of the Kerala Motor
Vehicles Rules; the name of the institution exhibited in educational
institution bus and private service vehicle as per Rule 291 of the Kerala
Motor Vehicles Rules; etc. In the case of a stage carriage in respect of
SSCR No.20 of 2021
which uniform colour scheme has been implemented under Rule 264
of the Kerala Motor Vehicles Rules, vide the decision of the State
Transport Authority dated 04.01.2018, no approval under sub-rule (2)
of Rule 191, shall be granted for exhibition of any advertisements,
writings, figures, graphics, etc., over the three equally spaced white
lines painted below the height of the wheel arch.
13. In the order dated 06.10.2022, we have reproduced a few
screenshots of promotion videos/posts of contract carriages with
writings, figures, graphics, etc. on the bus body, with the sole object
to invite public attention and to promote their contract carriage
service, which would cause distraction to the drivers of other vehicles,
cyclists and even pedestrians on the public road, openly flouting the
statutory requirements and also the law laid down by this Court in
Jijith [2019 (1) KHC 463] and reiterated in the order dated
10.01.2022 [2022 SCC OnLine Ker 1105] and the order dated
26.05.2022 [2022 SCC OnLine Ker 2906]. In view of the law laid
down by this Court in Jijith [2019 (1) KHC 463], a decision rendered
on 21.12.2018, no permission under Rule 191 of the Kerala Motor
Vehicles Rules can be granted for the exhibition of writings, figures,
graphics, etc. with the sole object to invite public attention and to
promote the contract or stage carriage service, by levying fee. The law
laid down in the said decision was being openly flouted by the contract
and stage carriage operators. Two screenshots of contract carriages
SSCR No.20 of 2021
with writings, figures, graphics, etc. on the bus body, reproduced in
the order dated 06.10.2022, are reproduced hereunder;
SSCR No.20 of 2021
14. On 14.10.2022, we have viewed in open Court a few
screenshots from the video posted on 'YouTube' regarding removal of
graphic stickers writings, figures, graphics, etc. pasted on the bus body
of contract carriages. As evident from the screenshots reproduced
hereinbelow, the exterior body of the contract carriages, which are
painted in white colour, is wrapped with graphic stickers, openly
flouting the law laid down by this Court in Jijith [2019 (1) KHC 463]
SSCR No.20 of 2021
and reiterated in the subsequent decisions. Two screenshots are
reproduced hereunder;
15. In the order dated 14.10.2022, we have noticed that, as
pointed by the learned Special Government Pleader, most of these
contract carriages were produced for testing for grant of certificate of
SSCR No.20 of 2021
fitness, without graphic stickers, unauthorized fittings, etc. After
obtaining certificate of fitness, such vehicles are being used in public
place, flouting the safety standards and other norms, after affixing
graphic stickers and other materials, unauthorised lights, etc.
16. In the order dated 10.10.2022, we have reproduced a
photograph that appeared in the Hindu daily dated 08.10.2022 of the
employees giving final touches to a KSRTC bus for jungle safari from
KSRTC Bus Depot at Sulthan Bathery to Ponkuzhy on the Kerala-
Karnataka boarder through Kozhikode-Kollengal NH-766, which
passes through the Wayanad Wildlife Sanctuary. The said photograph
is reproduced hereunder;
17. In Saji K.M. v. Deputy Transport Commissioner
[2019 (3) KHC 836] this Court held that the law laid down by this
Court in Jijith [2019 (1) KHC 463] is equally applicable in the case
of transport vehicles owned/operated by KSRTC and KURTC. While
approving the matter intended to be exhibited on a transport vehicle
SSCR No.20 of 2021
operated by KSRTC or KURTC, in exercise of the powers under Rule
191 of the Kerala Motor Vehicles Rules, subject to the conditions, if
any, laid down by the State Government under the first proviso to sub-
rule (1) of Rule 191, the competent authority shall ensure that it does
not cause distraction to the drivers of other vehicles and also cyclists
and pedestrians on public road. No approval shall be granted for
exhibition of any advertisements, writings, figures, graphics, etc. on
the body of a transport vehicle owned/operated by KSRTC or KURTC,
at places intended for exhibiting the name and address of the operator
as per clause (g) of Section 84 of the Motor Vehicles Act; the
particulars enumerated in clauses (a) to (g) of Rule 93 of the Kerala
Motor Vehicles Rules; the reflectors and reflective tapes as per Rule
104 of the Central Motor Vehicles Rules. Similarly, in view of the
provisions under Rule 100 of the Central Motor Vehicles Rules and the
law laid down by the Apex Court in Avishek Goenka v. Union of
India [(2012) 5 SCC 321] and Avishek Goenka (2) v. Union of
India [(2012) 8 SCC 441], tampering with the percentage of visual
transmission of light of the safety glass of the windscreen, rear window
and side windows of transport vehicles owned/operated by KSRTC or
KURTC, either by pasting any material upon the safety glass or by
fixing sliding 'cloth curtains', etc. are legally impermissible. No
approval under Rule 191 of the Kerala Motor Vehicles Rules, shall be
granted for exhibition of any advertisements, writings, figures,
SSCR No.20 of 2021
graphics, etc. on the safety glasses of such transport vehicles, which
shall always be maintained in such a condition that the visual
transmission of light is not less than that prescribed under sub-rule (2)
of Rule 100 of the Central Motor Vehicles Rules.
18. In Saji K.M. [2019 (3) KHC 836] this Court noticed that
the provisions under 'Policy on Roadside Advertisements' formulated
by the Indian Road Congress, vide IRC:46-1972 was introduced when
it was noticed that advertisement can often distract the attention of
drivers of motor vehicles and in that case a public hazard or nuisance.
They may also obstruct the view of the drivers of fast moving vehicles
and are then a public danger. Para.2 of IRC:46-1972 deals with
advertisement control; Para.3 deals with principles on advertisement
control; etc. The Ministry of Road Transport and Highways vide Circular
No.RW/NH-33044/35/2001/S&R(R) dated 16.05.2002 has made it
clear that no advertisement hoardings are permitted on National
Highways within the Right of Way (ROW) except informatory signs of
public interest such as hospitals, bus stations, etc. or advertisement
of temporary nature announcing local events such as Mela, Flower
Show, etc. Besides, IRC:46-1972 titled 'A Policy on Roadside
Advertisements' published in 1972 should also be referred for
comprehensive guidelines on advertisement control on National
Highways.
SSCR No.20 of 2021
19. In Saji K.M. [2019 (3) KHC 836] this Court noticed that
the Ministry of Road Transport and Highways in its letter
No.F.No.RW/NH-33044/18/ 2016/S&R(R) dated 07.09.2016 noticed
that despite the Ministry's policy of not allowing roadside
advertisements, hoardings on National Highways, which cause
distraction and is also one of the causes of accidents on National
Highways, advertisement hoardings have generally been noticed along
the National Highways. Therefore, it was decided that the Regional
Officers/Engineering Liasoning Officers within their jurisdiction shall
inspect the National Highways by prioritising heavily traffic National
Highways and other National Highways in stages and submit inspection
reports to the Ministry for further necessary action, along with their
monthly reports. However, reports from the Regional
Officers/Engineering Laisoning Officers are not being received by the
Ministry and therefore, the Ministry vide letter dated 07.09.2016
directed all the implementing agencies and Regional
Officers/Engineering Liasoning Officers to do joint inspection of all
National Highways within their jurisdiction and sent a consolidated
report regarding advertisement hoardings to the Ministry for further
necessary action. A copy of the said letter is addressed to all
Engineers-in-Chief and Chief Engineers of Public Works Departments
of State/Union Territories dealing with National Highways and other
Centrally Sponsored Schemes.
SSCR No.20 of 2021
20. In Saji K.M. [2019 (3) KHC 836], after taking note of
the provisions under 'Policy on Roadside Advertisements' formulated
by the Indian Road Congress, vide IRC:46-1972, the circular and letter
issued by the Ministry of Road Transport and Highways and also the
provisions under the Motor Vehicles Act and the Rules made
thereunder, this Court held that, since transport vehicles
owned/operated by KSRTC and KURTC are regularly plying on National
Highways, such vehicles shall not be permitted to exhibit any
advertisements which are likely to distract the attention of other
drivers. Earning of additional income by KSRTC or KURTC by the
display of advertisements on their transport vehicles, under Rule 191
of the Kerala Motor Vehicles Rules, should not be at the cost of public
safety.
21. In Saji K.M. [2019 (3) KHC 836] this Court held that,
as per the mandate of sub-rule (1) of Rule 92 of the Central Motor
Vehicles Rules, no person shall use or cause or allow to be used in any
public place any motor vehicle which does not comply with the
provisions of Chapter V of the said Rules (which deals with
construction, equipment and maintenance of motor vehicles).
Therefore, the Enforcement Officers in the Motor Vehicles Department
and also the Police have to take necessary action against the vehicles
owned/operated by KSRTC and KURTC which are used in public place
after tampering with the percentage of visual transmission of light of
SSCR No.20 of 2021
the safety glass of the windscreen, rear window and side windows of
such vehicles, either by pasting any material upon the safety glass or
by fixing sliding 'cloth curtains', etc. Action shall also be taken for
exhibiting advertisements, figures, etc. causing distraction to the
drivers of other vehicles and also cyclists and pedestrians on public
road. In the said decision, this Court held further that, in view of the
provisions under sub-rule (1) of Rule 92 of the Central Motor Vehicles
Rules, the law laid down by the Apex Court in Avishek Goenka
[(2012) 5 SCC 321] and Avishek Goenka (2) [(2012) 8 SCC
441], and also the law laid down by this Court in Jijith [2019 (1)
KHC 463] no motor vehicle, including a Government vehicle, shall be
allowed to be used in any public place, after tampering with the
percentage of visual transmission of light of the safety glass of the
windscreen, rear window and side windows, either by pasting any
material upon the safety glass or by fixing sliding 'cloth curtains', etc.
As per the mandate of sub-rule (2) of Rule 100 of the Central Motor
Vehicles Rules, the safety glass of the windscreen and rear window of
every motor vehicle shall always be maintained in such a condition
that the visual transmission of light is not less than 70% and that of
the safety glass used for side windows is not less than 50%.
22. In the order dated 14.10.2022, we have reproduced the
screenshot of a transport vehicle owned/operated by KURTC exhibiting
advertisements, figures, etc. causing distraction to the drivers of other
SSCR No.20 of 2021
vehicles and also cyclists and pedestrians on public road. The said
screenshot is reproduced hereunder;
23. In the order dated 01.08.2022 in D.B.P.No.36 of 2022, we
have ordered that depending upon the number of pilgrims, KSRTC shall
provide additional buses for Nilakkal-Pamba chain service for
Sabarimala pilgrims, in order to ensure that the number of passengers
carried on each vehicle does not exceed the permitted passenger
capacity (including standing capacity, if any). In the said order, we
have made it clear that, the use of any transport vehicle, which does
not comply with the provisions of Chapter V of the Central Motor
Vehicles Rules, is posing potential threat to the safety of the
passengers and other road users. The directions contained in our
order dated 10.01.2022 in SSCR No.20 of 2021 [2022 SCC OnLine
Ker 1105] have to be complied with by KSRTC/KURTC, while
operating their services, in order to ensure the safety of the
SSCR No.20 of 2021
passengers and other road users. The Enforcement Officers in the
Motor Vehicles Department and the Police shall take stern action
against the operation of any transport vehicle by KSRTC/KURTC
flouting the statutory provisions referred to hereinbefore and also the
law laid down in the decisions referred to supra.
24. The learned Standing Counsel for the additional 14th
respondent KSRTC would submit that steps have already been taken
to remove graphic stickers on KSRTC vehicles for Jungle Safari. The
learned Standing Counsel seeks time to get instructions and file an
affidavit on behalf of the said respondent.
25. In the order dated 14.10.2022, we have made it clear that,
the Enforcement Officers in the Motor Vehicles Department and also
the Police have to take necessary action against the vehicles
owned/operated by KSRTC and KURTC which are used in public place
after tampering with the percentage of visual transmission of light of
the safety glass of the windscreen, rear window and side windows of
such vehicles, either by pasting any material upon the safety glass or
by fixing sliding 'cloth curtains', etc. Action shall also be taken for
exhibiting advertisements, figures, etc. causing distraction to the
drivers of other vehicles and also cyclists and pedestrians on public
road, flouting the statutory provisions referred to hereinbefore and
also the directions contained in the judgment of this Court in Saji K.M.
[2019 (3) KHC 836].
SSCR No.20 of 2021
26. On behalf of the additional 14th respondent KSRTC, its
Managing Director shall file an affidavit explaining the facts and
circumstances, in which vehicles owned/used by KSRTC/KUSRTC were
used in public place openly flouting the law laid down by this Court in
Saji K.M. [2019 (3) KHC 836], a decision rendered on 09.04.2019,
the orders in SSCR No.20 of 2021 and also the order dated 01.08.2022
in D.B.P.No.36 of 2022.
27. In the order dated 14.10.2022, we have reproduced the
screenshots taken by a vlogger by name 'Tigoons', who has uploaded
a video on Sri.Ajay Ettumanoor, in 'You Tube'. Sri.Ajay, who owns 'AJ
Graphics' at Ettumanoor, has done graphics in more than 1,000
contract carriages, including the vehicle of another vlogger by name 'E
bull jet'. The screenshots taken from the video posted by another
vlogger by name 'Technic Youtuber' of a vehicle bearing KL-73/B-777
of the vlogger 'E bull Jet', in which the image of the High Court building
is also shown and the same is reproduced in paragraph 39 of that
order. Paragraphs 38 to 40 of that order read thus;
"38. A vlogger by name 'Tigoons' has uploaded a video on
Sri.Ajay Ettumannoor, in 'YouTube'. Sri.Ajay, who owns 'AJ
Graphics' at Ettumannoor has done graphics in more than 1,000
contract carriages, including the vehicle of another vlogger by
name 'E bull jet'. The images of the contract carriages and other
vehicles in which Sri.Ajay has done extensive graphic work are
shown in that video. A screenshot taken from that video is
reproduced hereunder;
SSCR No.20 of 2021
39. Another vlogger by the name 'Technic Youtuber' posted a
video in 'YouTube' of a vehicle bearing registration number KL-
73/B-777 of the vlogger 'E bull Jet'. In the said post, the image of
the High Court building is also shown, along with the image of the
said vehicle by the name 'Nepoleon E bull jet'. The said vehicle,
which was fitted with unauthorised lights, fittings, graphics, etc.,
was booked by the Enforcement Officers of the Motor Vehicles
Department. The said vehicle was produced before the concerned
Magistrate Court. A screenshot taken from that video uploaded in
'YouTube', after the order of this Court dated 10.01.2022 [2022
SCC OnLine Ker 1105], is reproduced hereunder;
SSCR No.20 of 2021
40. The 2nd respondent Transport Commissioner, through the
concerned Enforcement Officers in the Motor Vehicles Department,
shall take stern action, in accordance with law, against the
vloggers who are using such vehicles in public place, posing threat
to the safety of other road users, and also against the vloggers
who promote such vehicles with unauthorised alternations, and
also those who do such unauthorised alternations on motor
vehicles."
28. In view of the law laid down by this Court in Jijith [2019
(1) KHC 463], a decision rendered on 21.12.2018, no permission
under Rule 191 of the Kerala Motor Vehicles Rules can be granted for
the exhibition of writings, figures, graphics, etc. with the sole object
to invite public attention and to promote the contract or stage carriage
service, by levying fee. The law laid down in the said decision was
being openly flouted by the contract and stage carriage operators,
which is evident from the screenshots of contract carriages with
SSCR No.20 of 2021
writings, figures, graphics, etc. on the bus body, reproduced
hereinbefore at paragraph 13, and also the screenshot reproduced in
the order dated 14.10.2022 (reproduced hereinbefore at paragraph
27) of Sri.Ajay, who owns 'AJ Graphics' at Ettumannoor, who has done
graphics in more than 1,000 contract carriages, including the vehicle
of another vlogger by name 'E bull jet', bearing registration number
KL-73/B-777, which is not even a transport vehicle, which is fitted with
unauthorised lights, fittings, graphics, etc.
29. In Avishek Goenka v. Union of India [2012 (5) SCC
321] 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 vehicles, but also the safety of other users of the
road. In the said decision, the Apex Court held further that, the
SSCR No.20 of 2021
legislative intent attaching due significance to 'public safety' is evident
from the object and reasons of the Motor Vehicles Act, the provisions
of the said Act and more particularly, the rules framed thereunder.
30. As per Regulation 26 of the Motor Vehicles (Driving)
Regulations, 2017, which deals with bar on traffic impairment, unless
validly permitted by the competent authority under the Motor Vehicles
Act or the rules made thereunder, no driver shall display any
advertisement on the vehicle. Rule 191 of the Kerala Motor Vehicles
Rules provides for imposition of fee not only for advertisements, but
also for figures or writings. See: Hindustan Petroleum Corporation
Ltd. [2016 (3) KHC 693]. Rule 191 has application only to transport
vehicles. As held by the Apex Court in Avishek Goenka [2012 (5)
SCC 321], what is permitted has been specifically provided for and
what has not been specifically stated would obviously be deemed to
have been excluded from the Rules. Therefore, there is a total
prohibition of advertisements, figures, writings, etc. on the body of a
motor vehicle other than a transport vehicle.
31. Today, when this matter is taken up for consideration, the
learned Special Government Pleader has made available for the
perusal of this Court a report dated 20.10.2022 of the 2 nd respondent
Transport Commissioner, furnishing the details of the special drive
'Operation Focus-3'. As per that report, during the period from
07.10.2022 till 16.10.2022, 8556 cases were detected. In 448 cases,
SSCR No.20 of 2021
the fitness certificate of the vehicle was cancelled and in 14 cases, the
certificate of registration was either cancelled or suspended. 169
driving licenses are also suspended. The details of the compounding
fee imposed and collected are also furnished in that report.
32. The learned Special Government has made available for
the perusal of this Court copy of the communication dated 21.10.2022
of the Transport Commissioner, addressed to all Deputy Transport
Commissioners, Regional Transport Officer, Enforcement Regional
Transport Officers and Joint Regional Transport Officers and another
communication dated 21.10.2022 addressed to the Chairman &
Managing Director of KSRTC, the Managing Director of KURTC and the
Managing Director of KSRTC-SWIFT to ensure strict compliance of
clauses (a) to (g) of Rule 93 of the Kerala Motor Vehicles Rules in
respect of all transport vehicles. The said communications are issued
pursuant to the direction contained in paragraph 45 of the order of this
Court dated 14.10.2022. As per Rule 93, the following particulars in
respect of every transport vehicle shall be exhibited on the left hand
side of the vehicle in English letters and numerals, each not less than
two and a half centimetres square legibly painted either on a plane
surface of the vehicle or a plate or plates affixed to it;
(a) the name and address in brief of the registered
owner;
(b) the unladen weight of the vehicle;
(c) the number, nature and size of the tyres attached to
SSCR No.20 of 2021
each wheel;
(d) the gross vehicle weight of the vehicle and the
registered axle weight pertaining to the several axles
thereof;
(e) if the vehicle is used or adapted to be used for the
carriage of passengers solely or in addition to goods,
the number of passengers for whom accommodation
is provided;
(f) the name of the insurer with whom the vehicle is
insured; and
(g) the date of expiry of the permit and the date of
expiry of the certificate of fitness.
33. Paragraph 48 of the order of this Court dated 14.10.2022
reads thus;
"48. The learned counsel for additional respondents 8 and
9 and also the learned counsel for additional respondents
10 to 12 would submit that the Tourist Bus Operators in
the State may be granted reasonable time to comply with
the requirements of the uniform colour code for contract
carriages introduced in the state based on the decision of
the State Transport Authority. The learned Special
Government Pleader would submit that the said decision of
the State Transport Authority is under challenge before this
Court in W.P.(C)No.32719 of 2022, in which the learned
Single Judge declined today (14.10.2022) the interim relief
seeking time to comply with the requirements of the
uniform colour code for contract carriages."
34. Today, during the course of arguments, the learned Special
Government Pleader would point out that, the order dated 14.10.2022
SSCR No.20 of 2021
of the learned Single Judge in W.P.(C)No.32719 of 2022, declining
interim relief seeking time to comply with the requirements of the
uniform colour code for contract carriages was under challenge in
W.A.No.1502 of 2022. That Writ Appeal ended in dismissal, by the
judgment dated 19.10.2022 of the Division Bench.
35. We have issued various directions in the orders dated
06.10.2022, 10.10.2022 and 14.10.2022 and 20.10.2022, whereby
the 2nd respondent Transport Commissioner, the 3rd respondent State
Police Chief and also to the additional 6th respondent Union of India,
represented by the Secretary (RT&H), Ministry of Road Transport &
Highways, were directed to take necessary steps to ensure that motor
vehicles flouting the safety standards and the standards prescribed in
relation to control of noise are not used in public place, posing threat
to the safety of the passengers of such vehicles and other road users.
36. The Deputy Solicitor General of India was directed to get
instructions. The learned Deputy Solicitor General of India (DSGI)
would submit that he is awaiting instructions from the Ministry of Road
Transport and Highways and the Ministry of Electronics and
Information Technology, i.e., additional respondents 6 and 7, on the
action that can be initiated against the vloggers and also vehicles
brought through Carnet with extensive modifications, alterations, etc.
Immediately upon receipt of written instructions, an affidavit on behalf
of additional respondents 6 and 7 shall be placed on record.
SSCR No.20 of 2021
37. In the order dated 14.10.2022, we have noticed that
various vloggers are posting videos and posts on online media, like,
'YouTube' regarding 'bus body code' and also 'colour code' applicable
to contract carriages. In the said order, we have reproduced three
screenshots taken from a video posted by 'Focus Body Builders',
Kottappady, of a vehicle bearing Registration No.KL-06/H-1411, which
is fitted with unauthorised lights in the bus body, driver cabin and also
passenger compartment, flouting the safety standards Rule 286 of the
Kerala Motor Vehicles Rules, AIS-008, AIS-052(Rev. 1) 2008, though
the bus body is painted in white colour. Three screenshots taken from
a video posted by 'Focus Body Builders', Kottappady, are reproduced
hereunder;
SSCR No.20 of 2021
38. By the order dated 14.10.2022, we have directed the 2nd
respondent Transport Commissioner, through the concerned
Enforcement Officers in the Motor Vehicles Department, to conduct
inspection of vehicle bearing Registration No.KL-06/H-1411 and
thereafter, initiate appropriate proceedings, in accordance with law,
SSCR No.20 of 2021
against the registered owner and also the body builder, taking note of
directions contained in the order of this Court dated 10.01.2022, which
is reiterated in the order dated 26.05.2022.
39. In the order dated 14.10.2022, we have noticed the
submission made by the learned Special Government Pleader that a
three-tier system has been evolved by the Motor Vehicles Department
for detecting violations by motor vehicles, including contract carriages,
stage carriages, etc. As per the report dated 20.10.2022 of the 2nd
respondent Transport Commissioner, during the period from
07.10.2022 till 16.10.2022, 8556 cases were detected. In 448 cases,
the fitness certificate of the vehicle was cancelled and in 14 cases, the
certificate of registration was either cancelled or suspended. 169
driving licenses are also suspended.
40. The 2nd respondent Transport Commissioner, through the
Enforcement Officers in the Motor Vehicles Department shall ensure
that colour photographs of the exterior body, passenger compartment,
driver cabin and also light and light-signalling devises and retro
reflectors as per the Central Motor Vehicles Rules, AIS-008/AIS-052
(Rev.1) 2008, etc., forms part of the proceedings granting/declining
the certificate of fitness to every transport vehicle.
41. Having considered the materials on record and also the
submission made by the learned Special Government Pleader, we
deem it appropriate to direct the 2nd respondent Transport
SSCR No.20 of 2021
Commissioner or, in his absence, the officer holding charge of
Transport Commissioner, to appear in person before this Court on
28.10.2022 at 3.00 p.m., in order to explain the circumstances in
which contract carriages and other transport vehicles, including
vehicles owned/used by KSRTC/KUSRTC, were granted certificate of
fitness after the decision of this Court in Jijith [2019 (1) KHC 463],
a decision rendered on 21.12.2018/Saji K.M. [2019 (3) KHC 836],
a decision rendered on 09.04.2019, and permitted to be used in
public place, openly flouting the safety standards and the standards
prescribed in relation to control of noise, and also the law laid down by
this Court in those decisions, posing threat to the safety of the
passengers of such vehicles and other road users. The 2nd respondent
shall also explain the action, if any, taken against the owner and driver
of the motor vehicles referred to in the orders dated 06.10.2022,
10.10.2022, 14.10.2022 and 20.10.2022, and also against the
vloggers referred in those orders.
List on 28.10.2022 at 3.00 p.m.
Sd/-
ANIL K. NARENDRAN,
JUDGE
Sd/-
P.G. AJITHKUMAR,
JUDGE
dkr
21-10-2022 /True Copy/ Assistant Registrar
