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2018 Supreme(Ker) 166

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, J.
Merry Time Cream Food Pvt. Ltd. – Petitioner
Vs.
The Additional Registering Authority Tirurangadi & Ors. – Respondents
WP(C).No. 35165 of 2017
Decided On : 20-03-2018

Advocates Appeared:
For the Petitioner: Sri. V. Krishna Menon
For the Respondents: Sri. Bimal K. Nath Sr. Government Pleader

Headnote:

Constitution of India- Art. 14, Art.226- The Central Motor Vehicles Rules, 1989-Rule 126 - Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.

Statement of facts:

The petitioner, which is a company involved in the manufacture and sale of ice creams and frozen desserts, has approached this Court in this writ petition filed under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P4 order dated 22.8.2017 of the 1st respondent Additional Registering Authority rejecting the application for registration of the petitioner's 'Medium Goods Vehicle' with temporary registration No.KL-10/S-Temp-4666 and also Ext.P9 order dated 26.10.2017 of the 2nd respondent Deputy Transport Commissioner, who is the appellate authority.

Finding of the court:

Directed to reconsider Ext.P5 appeal and pass appropriate orders on the request made by the petitioner for registration of its 'Medium Goods Vehicle' with temporary registration No.KL-10/S-Temp-4666, after inspecting the said vehicle by an inspection team constituted by the 3rd respondent Transport Commissioner consisting of a technically qualified person nominated by the Principal, Sree Chitra Thirunal College of Engineering, Thiruvananthapuram-695018, from among the faculty members in the Mechanical (Automobile) Engineering Department of that College, and two Motor Vehicle Inspectors nominated by the 3rd respondent, out side the office of the 1st respondent Additional Registering Authority.

Result: Writ petition is disposed of

JUDGMENT :

1. The petitioner, which is a company involved in the manufacture and sale of ice creams and frozen desserts, has approached this Court in this writ petition filed under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P4 order dated 22.8.2017 of the 1st respondent Additional Registering Authority rejecting the application for registration of the petitioner's 'Medium Goods Vehicle' with temporary registration No.KL-10/S-Temp-4666 and also Ext.P9 order dated 26.10.2017 of the 2nd respondent Deputy Transport Commissioner, who is the appellate authority.

2. The 1st respondent Additional Registering Authority, who is also arrayed in his personal capacity as the 4th respondent, has filed a counter affidavit dated 19.12.2017 opposing the reliefs sought for in this writ petition. By the order dated 16.2.2018 in I.A.No.2982 of 2018, the heading of the counter affidavit was corrected as one filed by 'the 1st respondent'.

3. In the counter affidavit, the 1st respondent has contended that, on physical measurement it was found that the overall height of the petitioner's vehicle with closed body is 3420 mm, which has exceeded the overall height of 2420 mm mentioned in Ext.P10 Type Approval Certificate issued by the Automotive Research Association of India (for brevity, 'the ARAI') under Rule 126 of the Central Motor Vehicles Rules, 1989 (for brevity, 'the CMV Rules'). In Ext.P10 certificate, different overall heights ranging from 2420 mm to 3130 mm are stipulated for vehicle with a wheel base of 3760 mm. However, vehicles with overall height ranging from 2455 to 3130 have increased overall width ranging from 2255 mm to 2370 mm and increased overall length ranging from 7195 mm to 7240 mm. Since the overall height of the petitioner's vehicle is not conforming to the stipulated height mentioned in the prototype approval, the 1st respondent found that the said vehicle violates Rule 126 of the CMV Rules. The 1st respondent has also contended that the maximum overall height of 3800 mm prescribed under Rule 93 of the CMV Rules cannot be permitted in smaller vehicles. Therefore, the 1st respondent rejected the application for registration vide Ext.P4 order and the findings in the said order was upheld by the 2nd respondent appellate authority in Ext.P9 order. The petitioner has also filed a reply affidavit reiterating the contentions raised in the writ petition.

4. During the pendency of this writ petition, the petitioner has filed I.A.No.180 of 2018 seeking an order to implead the Director of Vigilance and Anti-Corruption Bureau and also the manufacturer of the vehicle as additional 6th and 7th respondents. The petitioner has also filed I.A.No.181 of 2018 seeking an order directing the additional 6th respondent to submit action-taken report in File No.R7718 (A636/2017/MPM) NRK. In the said interlocutory application, the 1st respondent filed a counter affidavit dated 9.1.2018, raising serious allegations against the Managing Director of the petitioner. Along with the said counter affidavit, the 1st respondent has also produced Ext.R1(a) submission made by the Assistant Motor Vehicle Inspector, who conducted inspection of the petitioner's vehicle, regarding threatening 'WhatsApp' messages received by him and his colleagues. A true copy of the printout of such 'WhatsApp' messages is placed on record as Ext.R1(b). The petitioner has filed reply affidavit dated 13.1.2018 in I.A.No.180 of 2018 explaining the circumstances under which he had sent such 'WhatsApp' messages. Later, the petitioner has filed I.A.No.1882 of 2018 seeking permission to withdraw I.A.Nos.180 of 2018 and 181 of 2018. In the affidavit accompanying to I.A.No.1882 of 2018, the Managing Director of the petitioner has stated that, as he realised that his action in having sent messages to the officials of the Motor Vehicles Department was wrong, inappropriate and unjustified and that he may be permitted to withdraw the aforesaid interlocutory app






















































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