KERALA BUS TRANSPORT ASSOCIATION Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) The Kerala Motor Vehicles (1st amendment) Rules, 2016 is under challenge in this batch of writ petitions. By virtue of the said Rules, a new proviso is introduced to sub-rule (2) of Rule 105 of the Kerala Motor Vehicles Rules, 1989 ('the Rules'). The newly introduced proviso directs that no officer of the Motor Vehicles Department shall accept an application for the grant of or renewal of certificate of fitness or other services, except for remittance of tax with respect to a transport vehicle, unless the same is accompanied by a clearance certificate in the prescribed form from the original registering authority to the effect that there are no Government dues or arrears of Motor Vehicles Tax in respect of the vehicle and that no legal action is pending in respect of the vehicle in that office. It is stated in the Explanatory Note to the amending rules that there is no provision at present in the Rules insisting that an application for grant of or renewal of certificate of fitness in respect of a transport vehicle will not be entertained unless check reports or other Government dues in respect of the vehicle are cleared; that absence of such a provision causes delay in clearing check reports and Government dues by the operators; that the same results in revenue loss and that therefore, the Government have decided to amend the Rules. The petitioners are individuals who own transport vehicles and their associations. It is alleged by the petitioners that check reports are issued to transport vehicles for violation of the provisions contained in the Motor Vehicles Act ('the Act') and the rules made thereunder, such as, non-fitment of speed governors, trip curtailments, over weight etc.; that going by the practise prevailing, proceedings initiated based on check reports are not finalised within a reasonable time by the statutory authorities and that if check reports are not cleared on the spot by the operators or their crews by agreeing to pay compounding fee, only the compounding fee agreed to by the parties can be realised as per the provisions of the Act, in the event violation is found by the competent authority at a later stage. According to the petitioners, the impugned proviso is, therefore, intended to coerce the petitioners and other similarly placed persons to clear check reports in respect of their vehicles by remitting compounding fee before an adjudication is made by the competent authority as to the alleged violation of the statutory provision. It is pointed out by the petitioners that the Transport Commissioner had earlier issued a circular incorporating provisions similar to the provisions contained in the impugned proviso and the said provisions were found by a learned Single Judge of this Court to be arbitrary and violative of the right guaranteed to the petitioners and similarly placed persons to carry on their avocation under 19(1)(g) of the Constitution and the said decision has been confirmed in appeal. According to the petitioners, the impugned proviso is, therefore, one introduced without any bona fides also with a view to negate the binding decisions of this Court. It is also contended by the petitioners that the impugned proviso is arbitrary even otherwise also, for, the various expressions used therein like 'other services', 'Government dues' and 'any other legal action pending' are so vague that it cannot be predicted with certainty as to what is intended by those expressions. In short, according to the petitioners, the direction in the impugned proviso that operators of transport vehicles shall wait till check reports issued in respect of the vehicles are finalised/cleared for availing services in respect of their vehicles, including renewal of certificate of fitness, is violative of the fundamental right guaranteed to the individual petitioners under Articles 14 and 19(1)(g) of the Constitution.

(2.) A counter affidavit has been filed by the Government in WP(C).No.16046 of 2016 supporting the impugned amendment. It is contended by the Government in the counter affidavit that check reports are issued for violation of the provisions of the Act and the rules made thereunder; that vehicle owners in the State are not in the habit of compounding the breach of the provisions of the Act on their part by paying compounding fee; that the Accountant General has stated in the audit reports submitted to the Government about the reduction in the collection of compounding fee and that it is in the said circumstances that the impugned amendment was introduced to the Rules. It is also asserted in the counter affidavit that the Government is empowered under Sec. 65 of the Act to make rules in the nature of one impugned in the writ petition.

(3.) Heard the learned counsel for the petitioners and the learned Special Government Pleader for the State.