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Binu Jacob And Ors v. State Of Kerala And Ors

Binu Jacob And Ors v. State Of Kerala And Ors

(High Court Of Kerala)

W.P.(C)NO.40896 OF 2022 | 22-12-2022

Anil K. Narendran, J.

1. The petitioners, who are residents near Erumeli-Pamba Valley Bypass Road, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to prohibit the plying of Taurus tippers, National Permit lorries and other multi-axle heavy duty vehicles through Erumeli-Pamba Valley Bypass Road, during Sabarimala season, so as to reduce traffic jams, accidents and also damage to the road. The petitioners have also sought for a writ of mandamus commanding the respondents to make regular and periodical inspections and checking at Erumeli-Pamba Valley Bypass Road to prevent the illegal plying of heavy/excess loaded Taurus tippers, National Permit lorries and other multi-axle heavy duty vehicles. A document marked as Ext.P1 is a news item that appeared in Malayala Manorama daily dated 06.12.2022 regarding plying of Taurus tippers through Manipuzha-Venkurinji Road, during school hours. The document marked as Ext.P2 are photographs of Goods vehicles, Taurus tippers, etc., carrying overload, causing accidents, traffic jam, etc. The document marked as Ext.P3 is an order dated 25.11.2022 of the 3rd respondent District Collector, Kottayam, as the Chairperson of the District Disaster Management Authority, cancelling the permission granted by the Geologist to excavate earth from Block No. 27 in Erumeli South Village, during Mandala-Makaravilakku festival season of 1198 M.E. (2022-23). The document marked as Ext.P5 is a news item that appeared in Malayala Manoram Daily dated 19.11.2022 regarding a motor accident which occurred on 18.11.2022 at Attivalavu near Kanamala Junction, involving a KSRTC bus and a contract carriage carrying Sabarimala pilgrims from Andhra Pradesh. According to the petitioners, despite the prohibitory orders, Taurus tippers, National Permit lorries and other multi-axle heavy duty vehicles are allowed being permitted to be plied through Erumeli-Pamba Valley Bypass Road, posing threat to the safety of other road users, including Sabarimala pilgrims. There are heavy traffic jams and accidents on the road. Many portions of the road have been damaged due to plying of overloaded Taurus tippers and other heavy vehicles. The petitioners submitted Ext.P5 representation dated 09.12.2022 before the 3rd respondent District Collector, Kottayam and the 4th respondent District Collector, Pathanamthitta. Alleging inaction on the part of the respondents, the petitioners are before this Court in this writ petition, seeking the aforesaid reliefs.

2. On 16.12.2022, when this writ petition came up for admission, the matter was referred to the Division Bench dealing with Devaswom matters.

3. On 20.12.2022, when this writ petition came up for consideration, the Transport Commissioner, Kerala, was suo motu impleaded as the additional 10th respondent. The learned Senior Government Pleader sought time to get instructions from respondents 3 to 8 and also additional 10th respondent. By the order dated 20.12.2022, the Police and the Enforcement Wing of the Motor Vehicles Department were directed to take necessary steps to ensure strict compliance of the directions contained in the judgment of this Court in Anoop K.A. and another v. State of Kerala and Others 2019 (5) KHC 414].

4. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader for the respondents.

5. During the course of arguments, the learned Senior Government Pleader has made available for the perusal of this Court, the proceedings dated 08.10.2018 of the 4th respondent District Collector, Pathanamthitta prohibiting the movement of tipper lorries in Pathanamthitta District from 8.30 a.m. to 10.00 a.m. and thereafter from 3.00 p.m to 4.30 p.m. The operative portion of that order reads thus;

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6. The learned Senior Government Pleader has also made available for the perusal of this Court, the order dated 13.01.2022 of the 4th respondent District Collector, Pathanamthitta regulating the movement of tipper lorries during this Makaravilakku festival season of 1198 M.E. The said order reads thus;

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7. In Anoop K.A. and another v. State of Kerala and others 2019 (5) KHC 414] this Court directed the State of Kerala and also the Transport Commissioner, Kerala to take necessary steps, through the duly authorised police officers and the officers of the Motor Vehicles Department to ensure strict compliance of the Road Safety Policy and also the provisions under the Motor Vehicles Act and the Motor Vehicles (Driving) Regulations, 2017 in the State of Kerala, as directed by the Apex Court in S.Rajaseekaran v. Union of India  (2018) 13 SCC 532].

8. In Anoop K.A.  2019 (5) KHC 414] this Court noticed that, grant of national permits in respect of goods carriages under sub-section (12) of Section 88 of the Motor Vehicles Act, read with Rule 90 of the Central Motor Vehicles Rules is for the purpose of encouraging long distance inter-state road transport. In view of the prohibition contained in clause (7) of Rule 90, goods carriages which are issued with national permits in States other than State of Kerala shall not be permitted to pick up or set down goods between two points in the State of Kerala. In view of the provisions under clause (8) of Rule 21 of the Central Motor Vehicles Rules, carrying overload in goods carriages shall constitute an act, which is likely to cause nuisance or danger to the public, for the purpose of clause (f) of sub-section (1) of Section 19 of the Motor Vehicles Act. As held in V. Rajendran v. Regional Transport Officer, Thanjavur and Peethambaran T.R. v. Additional Licensing Authority and another 2012 (3) KHC 917], the power of the Licensing Authority under sub-section (1) of Section 19 for making an order disqualifying the holder of driving licence for a specified period for holding or obtaining any driving licence to drive all or any classes or descriptions of vehicles specified in the licence; or revoke any such licence, is not dependent upon a conviction of the offender. The said power can be invoked immediately upon the commission of the offence, where the Licensing Authority is satisfied of the existence of the conditions stipulated in that provision. As held in Ashish Gosain v. Department of Transport and another  AIR 2016 Delhi 162], compounding of an offence under Section 200 of the Motor Vehicles Act does not, in any manner, affect the power of the Licensing Authority in exercising its power under sub-section (1) of Section 19 of the said Act. As held by the Apex Court in Paramjit Bhasin v. Union of India  (2005) 12 SCC 642], compounding can be done either before or after the institution of the prosecution in respect of the enumerated offences in Section 200 of the Motor Vehicles Act. However, after compounding an offence punishable under Section 194 of the Act relating to excess load, that excess load cannot be permitted to be carried in the vehicle concerned. Such carriage would amount to infraction of Section 113 of the Act. The intention of uploading the excess load is apparent from a bare reading of sub-section (1) of Section 194. The liability to pay charge for uploading of the excess load is fixed on one who drives a vehicle or causes a motor vehicle to be driven in contravention of the provisions of Sections 113, 114 and 115 of the Act.

9. In Anoop K.A. 2019 (5) KHC 414] this Court noticed that as per sub-regulation (1) of Regulation 35 of the Motor Vehicles (Driving) Regulations, 2017, the driver shall at all times ensure that loads, including load restraints and loading equipment, in the vehicle are stowed and restrained in such manner that these cannot slip, fall over, roll around, fall off the vehicle or produce avoidable noise, even in an emergency braking situation or if the vehicle swerves suddenly. As per sub-regulation (2), no driver shall drive in any public place a motor vehicle which is loaded in a manner which is likely to cause danger to any person. As per sub-regulation (3), the load or any part thereof, or any other object in the vehicle shall not extend laterally beyond the sides of the body or to the front or to the rear or exceed in height or weight the limits specified in the certificate of registration of the vehicle.

10. In Anoop K.A. 2019 (5) KHC 414] this Court held that, in view of the law laid down in V. Rajendran v. Regional Transport Officer, Thanjavur  Peethambaran T.R. v. Additional Licensing Authority and another  2012 (3) KHC 917], Ashish Gosain v. Department of Transport and another  AIR 2016 Delhi 162], Ajith v. State of Kerala and others 2017 (1) KHC 328], S. Rajaseekaran v. Union of India (2014) 6 SCC 36], S. Rajaseekaran v. Union of India (2018) 13 SCC 532], and Paramjit Bhasin v. Union of India (2005) 12 SCC 642], and also the directions issued by the Supreme Committee on Road Safety on 18.08.2015, in cases in which offences like driving at a speed exceeding the specified limit; carrying overload in goods carriages; driving vehicles under the influence of drinks and drugs; using mobile phone while driving a vehicle; etc. are detected, the duly authorised police officers and the officers of the Motor Vehicles Department shall forthwith forward the driving licence of the driver of the vehicle to the Licensing Authority, for initiating proceedings under sub-section (1) of Section 19 of the Motor Vehicles Act. The compounding, if any, of the offence under Section 200 of the Motor Vehicles Act (either before or after the institution of any prosecution) shall not in any manner affect the proceedings initiated by the Licensing Authority under sub-section (1) of Section 19 of the said Act.

11. In Anoop K.A.2019 (5) KHC 414] this Court directed the State of Kerala and the Transport Commissioner, Kerala, to take necessary steps, through duly authorised police officers and the officers of the Motor Vehicles Department, including the Deputy Transport Commissioner, Central Zone-II, Ernakulam and the Regional Transport Officer, Ernakulam, to ensure strict implementation of the Road Safety Policy and also the provisions under the Motor Vehicles Act and the Motor Vehicles (Driving) Regulations, 2017 in the State of Kerala, as directed by the Apex Court in S. Rajaseekaran (2018) 13 SCC 532]. In view of the law laid down in V. Rajendran Peethambaran T.R.  2012 (3) KHC 917], Ashish Gosain AIR 2016 Delhi 162], Ajith 2017 (1) KHC 328], S. Rajaseekaran (2014) 6 SCC 36], S. Rajaseekaran (2018) 13 SCC 532], and Paramjit Bhasin (2005) 12 SCC 642], and also the directions issued by the Supreme Committee on Road Safety in Ext.P1, in cases in which offences like driving at a speed exceeding the specified limit; carrying overload in goods carriages; driving vehicles under the influence of drinks and drugs; using mobile phone while driving a vehicle; etc. are detected, the duly authorised police officers and the officers of the Motor Vehicles Department shall forthwith forward the driving licence of the driver of the vehicle to the Licensing Authority, for initiating proceedings under sub-section (1) of Section 19 of the Motor Vehicles Act. This Court ordered that, stern action shall be taken against the use of goods carriages and trailers in contravention of the provisions of Section 113 or Section 114 or Section 115 [which deals with power to restrict the use of vehicle] of the Motor Vehicles Act or clause (7) of Rule 90 of the Central Motor Vehicles Rules, and also for carrying persons in contravention of sub-regulations (2) and (3) of Regulation 32; for carrying load in contravention of sub-regulations (1) and (2) of Regulation 35 of the Motor Vehicles (Driving) Regulations, 2017. This Court further ordered that, considering the increase in the number of 'hit and run' accidents reported every year, stern action shall be taken against the use of motor vehicles, including goods carriages and trailers, in contravention of the provisions under Regulation 36 of the Motor Vehicles (Driving) Regulations, 2017, i.e., against the use of motor vehicles on public roads without displaying the registration plates as prescribed by the Motor Vehicles Act and the rules made thereunder.

12. Though the plying of Taurus tippers, National Permit lorries and other multi-axle heavy duty vehicles through Erumeli-Pamba Valley Bypass Road cannot be prohibited during Mandala-Makaravilakku festival season of 1198 M.E., the Police and the Enforcement Wing of the Motor Vehicles Department can be directed to regulate the movement of such vehicles strictly in terms of the statutory provisions referred to in the judgment of this Court in Anoop K.A.  2019 (5) KHC 414] and also the law laid down in that decision, in order to ensure the safety of road users, including Sabarimala pilgrims.

In such circumstances, this writ petition is disposed of by directing the Police and the Enforcement Wing of the Motor Vehicles Department to take necessary steps to ensure strict compliance of the directions contained in the judgment of this Court in Anoop K.A.  2019 (5) KHC 414] and also the orders issued by the 4th respondent District Collector, Pathanamthitta dated 08.10.2018 and 13.01.2022, while regulating the plying of Taurus tippers, National Permit lorries and other multi-axle heavy duty vehicles on public place in Pathanamthitta District.

Advocate List

  • P.M.RAFEEK U.NIDHIN SARA JOHN

  • SRI S.RAJMOHAN- SR. GOVERNMENT PLEADER

Bench
  • HON'BLE MR. JUSTICE ANIL K.NARENDRAN
  • HON'BLE MR. JUSTICE P.G.AJITHKUMAR
Eq Citations
  • 1 (2023) ACC 607 (Ker)
  • 1 (2023) ACC 612 (Ker)
  • LQ/KerHC/2022/6711
Head Note

Motor Vehicles Act, 1988 — Ss. 88(12), 19(1)(f), 21(8) and 194 — Road Safety Policy — Motor Vehicles (Driving) Regulations, 2017 — Overloading of goods carriages — Carrying overload in goods carriages shall constitute an act, which is likely to cause nuisance or danger to the public, for the purpose of clause (f) of sub-section (1) of Section 19 of the Motor Vehicles Act — Power of the Licensing Authority under sub-section (1) of Section 19 for making an order disqualifying the holder of driving licence for a specified period for holding or obtaining any driving licence to drive all or any classes or descriptions of vehicles specified in the licence; or revoke any such licence, is not dependent upon a conviction of the offender — Such power can be invoked immediately upon the commission of the offence, where the Licensing Authority is satisfied of the existence of the conditions stipulated in that provision — Compounding of an offence under Section 200 of the Motor Vehicles Act does not, in any manner, affect the power of the Licensing Authority in exercising its power under sub-section (1) of Section 19 of the said Act — After compounding an offence punishable under Section 194 of the Act relating to excess load, that excess load cannot be permitted to be carried in the vehicle concerned — Such carriage would amount to infraction of Section 113 of the Act — The intention of uploading the excess load is apparent from a bare reading of sub-section (1) of Section 194 — The liability to pay charge for uploading of the excess load is fixed on one who drives a vehicle or causes a motor vehicle to be driven in contravention of the provisions of Sections 113, 114 and 115 of the Act — In cases in which offences like driving at a speed exceeding the specified limit; carrying overload in goods carriages; driving vehicles under the influence of drinks and drugs; using mobile phone while driving a vehicle; etc. are committed, the Licensing Authority shall take immediate action to disqualify the holder of driving licence for a specified period for holding or obtaining any driving licence to drive all or any classes or descriptions of vehicles specified in the licence; or revoke any such licence — State of Kerala and also the Transport Commissioner, Kerala directed to take necessary steps, through the duly authorised police officers and the officers of the Motor Vehicles Department to ensure strict compliance of the Road Safety Policy and also the provisions under the Motor Vehicles Act and the Motor Vehicles (Driving) Regulations, 2017 in the State of Kerala, as directed by the Apex Court in S. Rajaseekaran v. Union of India (2018) 13 SCC 532] — District Collector, Pathanamthitta directed to prohibit the movement of tipper lorries in Pathanamthitta District from 8.30 a.m. to 10.00 a.m. and thereafter from 3.00 p.m to 4.30 p.m. during the Makaravilakku festival season of 1198 M.E..