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.
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1. 2009 (2) KLT 583
2. ibid
3. 2008 (4) KLT 603
4. 1995 (2) KLT 450
