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2013 DIGILAW 509 (MAD)

M. Abdul Rahman v. Transport Commissioner Chepauk

2013-01-23

R.SUDHAKAR

body2013
JUDGMENT 1. The petitioner purchased Omni buses, which were used as Contract Carriages, bearing Registration Nos.TN-33 AD 3444 and TN-33 AD 3939. The two omni buses were registered as Heavy Motor Vehicle Contract Carriages in the certificates of registration. The particulars of the vehicles, as found in the Registration Certificates, are extracted hereunder:- "FIRST VEHICLE: 1. Class of vehicle HMV-PV-Contract Carriage All India Tourist omni bus The motor vehicle is- (a) A new vehicle New (b) Ex-army vehicle (c) Imported vehicle (d) Migration from other States 2. Maker Name M/s Ashok Leyland Ltd 3. Type of body Semi saloon mofussil 4. Month and year of manufacturing Aug-2004 5. Number of cylinders Six 6. Classic Number LWE 536385 7. Engine number MWH 280747 8. Fuel used in engine Diesel 9. Horse Power (B.H.P.) 42.7 10. Cubic Capacity 6014 11. Maker's classification A.Leyland Viking 12. Wheel base 222 WB 13. Seating capacity (including driver) 32 in all 14. Unladen weight 9770 kgs 15. Colour or colour of body, wings and front end. Additional particulars in the case of all transport vehicles other than motor cabs White with blue ribbon border 16. Gross vehicle weight: (a) as certified by the manufacture 15660 Kgms. (b) as registered 15660 Kgms. 17. Number, description and size of tyre- (a) front axle 10.00 x 20 16 pr – 2 (b) rear axle 10.00 x 20 16 pr – 4 (c) any other axle (d) tandem axle " SECOND VEHICLE: 1. Class of vehicle HMV-PV-Contract Carriage All India Tourist omni bus The motor vehicle is (a) A new vehicle New (b) Ex-army vehicle (c) Imported vehicle (d) Migration from other States 2. Maker Name M/s Ashok Leyland Ltd 3. Type of body Semi saloon mofussil 4. Month and year of manufacturing Aug-2004 5. Number of cylinders Six 6. Classic Number LWE 536194 7. Engine number MWH 272644 8. Fuel used in engine Diesel 9. Horse Power (B.H.P.) 42.7 10. Cubic Capacity 6014 11. Maker's classification A.Leyland Viking ALDSI 4/19 12. Wheel base 222 WB 13. Seating capacity (including driver) 32 in all 14. Unladen weight 9820 kgs 15. Colour or colour of body, wings and front end. Additional particulars in the case of all transport vehicles other than motor cabs White with blue ribbon border 16. Gross vehicle weight: (a) as certified by the manufacture 15660 Kgms. (b) as registered 15660 Kgms. 17. Seating capacity (including driver) 32 in all 14. Unladen weight 9820 kgs 15. Colour or colour of body, wings and front end. Additional particulars in the case of all transport vehicles other than motor cabs White with blue ribbon border 16. Gross vehicle weight: (a) as certified by the manufacture 15660 Kgms. (b) as registered 15660 Kgms. 17. Number, description and size of tyre- (a) front axle 10.00 x 20 16 pr – 2 (b) rear axle 10.00 x 20 16 pr – 4 (c) any other axle (d) tandem axle " 2. On purchase of the above vehicles, the petitioner made an application to the second respondent on 10.7.2012 for conversion of the omni buses to goods vehicles and that claim was rejected on 12.7.2012 by referring to Section 52 of the Motor Vehicles Act, 1988 (for short, "the Act") and that order is impugned in the present writ petition. 3. The learned counsel for the petitioner contended that the original specification of the manufacturer has not been altered and it remains the same. Therefore, as per the proviso to Section 52 of the Act, modification of any part thereof is permissible so long as the original specification of the manufacturer is not altered. He relies upon Circular No.25 of 2001 issued by the Transport Commissioner, Government of Tamil Nadu in Letter No.E1/72414/2000 dated 28.5.2001 and the preamble of the circular clearly states as follows:- "In the Notification published in the Government of India Gazette 1st cited, Section 52 of Motor Vehicles Act has been amended by Motor Vehicles (Amendment) Act 2000 (Act 27/2001) by the Government of India with effect from 14.8.2000. The Amendment puts a ban on conversion / alteration in Motor Vehicles which results in variance of the particulars originally specified by the manufacturer. As per the new Amendment 'alteration' means, a change in the structure of a vehicle which results in a change in its basic feature." It speaks about the alteration as altering the basic feature of the vehicle. That circular came to be issued based on the representations received from mini bus owners association, who sought the permission of the Government for allowing conversion of Heavy Motor Vehicles Stage Carriage to Mini Bus or Heavy Motor Vehicles, Goods Vehicles to Mini Bus etc. That circular came to be issued based on the representations received from mini bus owners association, who sought the permission of the Government for allowing conversion of Heavy Motor Vehicles Stage Carriage to Mini Bus or Heavy Motor Vehicles, Goods Vehicles to Mini Bus etc. Considering the factors and in order to implement the mini bus scheme formulated by the Government, the circular was issued allowing the alteration and the nature of circular with regard to alteration is as follows:- "4. Alterations which can be permitted on merits are as follows: 1) Type of body : (a) Passengers version Town – Mofusil – Express and vice versa and Non Transport to Transport vice versa. (b) Goods version Open – Platform – Closed – Tanker and vice versa. 2) Chassis: Replacement by new chassis of the same type supplied by the same manufacturer. 3) Engine: Petrol to Diesel or any engine to be used with source of energy including battery, compressed natural gas, solar power, liquid petroleum gas or any other fuel or source of energy, by fitment of a conversion kit. 4) Fuel used in the engine 5) Horse power 6) Cubic Capacity 7) Seating Capacity 8) Unladen Weight 9) Colour 5. (10) Alterations which may not be permitted are: 1) (a) Class of Vehicle : (Passenger version to Goods version vice versa) (b) Maker's Name 2) Month and year of Manufacture 3) Number of Cylinders 4) Maker's Classification 5) Wheel Base 6) Number and description and size of tyres on each axle 7) Maximum Axle Weight or Gross Vehicle Weight or R.L.W. 8) Others not specifically permitted in para 4 above. 6. All Registering Authorities and Assistant Registering Authorities are instructed to bear in mind, the above clarifications. While allowing alteration in Motor Vehicles, they should ensure that the provisions of Section 52 as amended are enforced effectively without any deviation." 4. He also relied upon a decision of a learned single Judge of the Kerala High Court in K.S. Rajesh Kumar v. The Additional Registering Authority and another in W.P.(C) No.2738 of 2010 decided on 1.2.2010. According to the learned counsel, if the alteration does not affect the basic feature of the vehicle as specified by the manufacturer, then the alteration of the motor vehicle can be permitted. According to the learned counsel, if the alteration does not affect the basic feature of the vehicle as specified by the manufacturer, then the alteration of the motor vehicle can be permitted. In this case, except removing the seating portion and the colour in the body, for the purpose of conversion to goods vehicle, all other specifications of the manufacturer remain as such and therefore the basic feature of the vehicles as originally specified by the manufacturer is not altered. Hence, the claim of the petitioner for alteration of the vehicles should be permitted and the reason adduced in the impugned letter is not in consonance with Section 52 of the Act. 5. A counter affidavit has been filed by the respondents. Paragraphs 5 & 7 of the counter affidavit read as follows:- "5. As regards the averments set out in para 11 of the affidavit it is submitted that the order passed by the Regional Transport Officer/Registering Authority is based on section 52 of Motor Vehicle Act and the clarification Circular No.25/2001 issued by the Transport Commissioner, Chennai and is not baseless as stated in this para. So also the contention that there is no other alternative efficacious remedy is available to the petitioner except to invoke the jurisdiction of the Hon'ble High Court under Article 226 of the Constitution is not correct. There is specific provision in Rule 127 of the Tamil Nadu Motor Vehicle Rules 1989 that the appellate authority for preferring appeal against the orders of the Registering Authority is Deputy Transport Commissioner. Therefore for the reasons best known to the petitioner, he has filed this writ petition skipping the proper forum for appeal as provided in Rule 127 of the Tamil Nadu Motor Vehicle Rules 1989. 7. As regards the averments set out in ground 11(b) of the affidavit it is submitted that in Para No.5 of the Circular No.25/2001 under the heading alteration which may not be permitted are, the first item is class of vehicle (passenger version to goods version and vice versa). Therefore, it is not correct to say that as per Circular No.25/2001, the conversion of class of vehicle is permissible. So also the argument that the alteration does not change the basic feature of the vehicle is also not correct, since the basic feature i.e., carrying passengers is changed as carrying goods after alteration." 6. Therefore, it is not correct to say that as per Circular No.25/2001, the conversion of class of vehicle is permissible. So also the argument that the alteration does not change the basic feature of the vehicle is also not correct, since the basic feature i.e., carrying passengers is changed as carrying goods after alteration." 6. Heard the learned Additional Government Pleader for the respondents also. 7. On going through the provisions of Section 52 of the Act, prima facie, it is evident that certain types of alteration of motor vehicle is permissible. What is not permitted is the variation of the original specification of the manufacturer. If the basic feature of the vehicle remains unchanged, then Section 52 provides for alteration of the motor vehicle. In the present case, the conversion is from omni bus to goods vehicle. The only two changes the petitioner seeks are for removing the seats and the colour and type of the body for the purpose of modifying the omni buses as goods vehicles. Circular No.25 of 2001 dated 28.5.2001 also emphasises that 'alteration' means, the basic feature of the vehicle should not be changed. It allows alteration from non transport to transport vice versa, which means that a transport vehicle can become a non transport vehicle. It may also include a goods vehicle. The only requirement is that the basic feature as specified by the manufacturer should not be changed. This proposition becomes clear on a reading of paragraph-4 of the circular, which clearly provides for certain alterations, namely, petrol to diesel or any engine to be used with source of energy including battery, compressed natural gas, solar power, liquified petroleum gas or any other fuel. This also amounts to conversion as against the original specification of the manufacturer. The horse power, cubic capacity, seating capacity, unladen weight, colour also can be altered. If the circular provides such an alteration which is contrary to the specification of the manufacturer, I am unable to understand as to how a mere change in removal of seats and removal of colour in the body or type of body for conversion into a goods vehicle can fall outside the scope of Section 52. Paragraph-5(1) (a) of the circular, which has been wrongly stated as paragraph-10, states that alteration of passenger to goods version vice versa is not permitted. Paragraph-5(1) (a) of the circular, which has been wrongly stated as paragraph-10, states that alteration of passenger to goods version vice versa is not permitted. This portion of the circular appears to be on the basis of misconception of Section 52, as could be seen from clause (1) of paragraph-4, accepting the conversion of non transport to transport and also transport to non transport. So, clause (1) of paragraph-4 and clause (1)(a) of paragraph-5 are at variance to each other and therefore I am not inclined to give any credence to paragraph-5 (wrongly stated as 10) of the circular which does not clarify the position properly. In any event, the provisions of Section 52 are very clear and unambiguous. So long as the original specification of the manufacturer remains, the proviso enables the modification of the vehicle and that is what is sought to be done by the petitioner. This Court finds justification in the same. This view is also fortified by the decision of a learned single Judge of Kerala High Court in K.S. Rajesh Kumar's case, W.P.(C) No.2738 of 2010 dated 1.2.2010 supra, wherein it has been held as follows:- "8. It is clear from the above provisos that for the purpose of the above provision, alteration means a change in the structure of the vehicle which results in a change in its basic feature. According to the respondents, the basic feature is altered by an alteration of a passenger vehicle to a goods carriage vehicle. The above question has been considered by a learned Single Judge of this Court in O.P.No.2637 of 2003. This Court has also noticed that Stage Carriage Vehicles are produced in the form of chassis and are used as Stage Carriages after building a body on the chassis. Consequently, the details of the body built on the chassis could not be specified in the particulars specified by the manufacturer. Therefore, only an alteration of the chassis would come within the prohibition contained in Section 52(1) of the Motor Vehicles Act. This Court has held as follows:- "The alteration which results in the change in the basic feature of the vehicle, must be concerning those in the chassis supplied by the manufacturer. It is common ground in the case on hand that the change will be only in the body of the vehicle and not in the chassis. This Court has held as follows:- "The alteration which results in the change in the basic feature of the vehicle, must be concerning those in the chassis supplied by the manufacturer. It is common ground in the case on hand that the change will be only in the body of the vehicle and not in the chassis. Therefore, the provision under Section 52(1) of the Act will not apply to the modification made to the body of a stage carriage." 8. For all the above reasons, the impugned proceedings are set aside and a mandamus is issued directing the authorities to consider the application for conversion of the omni buses in question to goods vehicles and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order. The writ petition stands allowed. Consequently, M.P.Nos.1 & 2 of 2012 are closed. No costs.