Judgment in Cherian’s case permitting registration of transport vehicle as non-transport vehicle depending on user of the vehicle under challenge in writ appeal filed by Transport Authorities

The decision of the learned Single Judge of the Kerala High Court in Cherian v. Transport Commissioner and others¹  has now been challenged at the instance of the Transport authorities in writ appeal filed as W.A. No. 51 of 2014 before a Division Bench of the Kerala High Court. The delay of 1679 days occasioned in preferring the appeal by the Transport authorities was earlier condoned by the Court.

In Cherian², the petitioner had approached the High Court aggrieved by the stand taken by the Regional Transport Officer, Kozhikode and the Regional Transport Authority, Kozhikode that a vehicle ‘Mahindra Bolero Camper 4WD’ which he intended to purchase and use as a private vehicle for non-commercial purposes, could not be registered as a Light Motor Vehicle (LMV)/Motor Car and consequently, preferred the writ petition seeking a direction to the transport authorities to register the said vehicle as a Light Motor Vehicle (LMV)/Motor Car. The petitioner had contended that : (i) the refusal of the respondents to register the Mahindra Bolero Camper 4WD’ is illegal and without jurisdiction inasmuch the same ran contrary to the clarification issued by the Transport Commissioner in his circular to all transport authorities in the State; (ii) the Automotive Research Association of India (ARAI) having certified that the vehicle can be registered as a private vehicle which was accepted by the Transport Commissioner, there could be no justification for the Regional Transport Officer, Kozhikode to deny or delay registration, (iii) “the definition in the Motor Vehicles Act clearly shows that the vehicle which the petitioner intends to purchase is a Light Motor Vehicle, a motor vehicle which is a private service vehicle” and “therefore it cannot be a transport vehicle which means...a public service vehicle”; and (iv) the said vehicle is being registered in every other place in Kerala as well as in other states as a Light Motor Vehicle (LMV)/Motor Car.

The learned Single Judge relying on the ratio in Alex Thomas v. State of Kerala³ held that with respect to a vehicle which is constructed and adapted not for carriage of goods alone, the user of the vehicle is the prime aspect which needs to be considered for deciding the question whether it is to be treated as a transport vehicle or non-transport vehicle, and that in Cherian, since the vehicle in question is a light motor vehicle, it need to be given registration as light motor vehicle provided it is not used as a goods carriage. The learned Single Judge said : “If it is not used as a transport vehicle, it cannot be treated as a transport vehicle, but only as a non-transport vehicle”. Accordingly, the learned Single Judge passed judgment dated 13.03.2009 with directions to the Regional Transport Officer, Kozhikode and the Regional Transport Authority, Kozhikode to “issue registration to ‘Mahindra Bolero Camper 4WD’, if any brought by the petitioner for registration as a non-transport light motor vehicle.”

It is this judgment of the learned Single Judge in Cherian, a decision followed and relied upon in several cases of similar nature, that has now been impugned by the Transport authorities before the Division Bench of the Kerala High Court. 

The Transport authorities have inter alia, contended that : (i) the judgment of the learned Single Judge in Cherian was one passed without noticing or considering the judgment of the Division Bench in Saramma v. Regional Transport Officer, Ernakulam⁴ wherein the Court had held that it is for the authorities to take into account all relevant factors before classifying the vehicles as omnibus or transport vehicle and it is not open to the owners of the vehicle to convert the vehicles to suit their convenience; (ii) the vehicle in question has a gross vehicle weight not exceeding 3.5 tonnes and therefore comes under the N1 category according to the notification issued by the Central Government under sub-section (4) of Section 41 of the central Act, and the learned Single Judge’s findings are without considering the certificate issued by the ARAI; (iii) the judgment in Alex Thomas v. State of Kerala has no application to the case at all since the issues involved in both cases are dissimilar; (iv) when a vehicle is manufactured, built and prototype test conducted for the carriage of goods, which has much sanctity, the same cannot be altered for the carriage of passengers, unless so certified, and that no deviation can be permitted to be made by any registering authority from the classification approved by the manufacturer, based on the declaration of the individual purchaser since certification is an authentic document which determines the class of vehicle to which a particular vehicle can be categorized and (v) as the motor vehicles tax for goods version of vehicle is lesser compared to passenger vehicle certain persons have purchased the goods version of such vehicles in order to evade Sales tax, Excise duty, Customs duty, and motor vehicles tax, which is causing revenue loss to the State Exchequer. The Appellants have also disputed the findings of the learned Single Judge, on facts.

The appeal, when it came up for admission before a Division Bench comprising Acting chief Justice Ashok Bhushan and A.M. Shaffique, today, was listed for further consideration of the Court on 04.12.2014.

 _________

1. 2009 (2) KLT 583

2. ibid

3. 2008 (4) KLT 603

4. 1995 (2) KLT 450