IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 OP.No. 1542 of 2003(H) ---------------------- PETITIONER(S): --------------- 1. DRIVERS WELFARE SOCIETY REG.NO.980/2002, MANJERI REP.BY SECRETARY, (BOBAN THOMAS, AGED 43, S/O.M.V.THOMAS, MANJAPPALLY HOUSE, C.H.C.QUARTERS, CHEMPAKUTHU, EDAVANA P.O., MANJERI) 2. K.ALI AKBAR, AGED 36, S/O. ABUDUL RAHIMAN, KINATTINKAL HOUSE, KARUAMBRAM P.O., MANJERI. BY ADV. SRI.K.S.MADHUSOODANAN SRI.C.P.PEETHAMBARAN RESPONDENT(S): --------------- 1. STATE OF KERALA TO BE REP.BY SECRETARY, MOTOR VEHICLES DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. REGIONAL TRANSPORT AUTHORITY, MALAPPURAM, REP.BY SECRETARY. 3. THE CONTROLLER, LEGAL METROLOGY, VIKAS BHAVAN, THIRUVANANTHAPURAM. 4. SENIOR INSPECTOR, LEGAL METROLOGY MANJERI, MALAPPURAM DISTRICT. GOVERNMENT PLEADER SMT. SMITHA SUKUMARAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 1542/2003. ------------------------------------------------------------- EXT.P1 TRUE COPY OF DETAILS OF PETITIONERS GIVEN IN A CHART. EXT.P2 TRUE COPY OF PERMIT. EXT.P3 CERTIFICATE OF FITNESS/RENEWAL. EXT.P4 PAPER REPORT PUBLISHED IN MALAYA MANORAMA. EXT.P5 RECEIPT ISSUED BY R4. EXT.P6 RECEIPT OF 1ST PETITIONER. EXT.P7 LAWYER NOTICE DT. 2-12-2002. EXT.P8 REPRESENTATION DT. 29-1-2003. EXT.P9 REPRESENTATION DT. 14-2-2003. EXT.P10 COPY OF PURCHASE BILL. EXT.P11 TRUE COPY OF CASH RECEIPT. EXT.P11(a) CERTIFICATE OF VERIFICATION. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R3(a) GOVT LETTER DT.19-11-2002. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 1542 of 2003 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 12th February, 2009. J U D G M E N T The 1st petitioner claims to be a society of autorickshaw drivers and the 2nd petitioner claims to be the member of that society. I am unable to consider the claim of the 1st petitioner since the status of the 1st petitioner has not been stated and proved in this original petition. What is stated in the original petition is that it is a society registered under the Charitable Societies Act. There is no legislation by name Charitable Societies Act. Therefore, I am not inclined to consider the claims of the 1st petitioner in this original petition in so far as it is not proved before me that it is a legal entity. Therefore, I shall confine myself with the claims of the 2nd the petitioner. 2. The complaint of the 2nd petitioner is that although the requirement of fitting of meter in autorickshaw was implemented in Manjeri only in 2002, the 3rd respondent is insisting on the 2nd petitioner paying fees for re-verification of the meter from the year 1992 onwards. The petitioners therefore seek the following reliefs: “i. Call for the records connecting Exts.P2 to P7 from the respondent concerned; ii. Issue a writ of mandamus directing the respondents 3 and 4 to cause the examination and sealing of the taxi meters fitted to the autorikshaws of the members of the 1st petitioner union covered under Ext. P1 list, without insisting any charge for the period 1992 to 1-7-2002; iii. Issue a writ of mandamus directing the 4th respondent to reimburse the charge received from the members of the Union covered under Ext. P1 list for varying periods from 1992 to 2003; iv. Issue a writ of mandamus directing the 2nd respondent to cause the renewal of fitness certificate without insisting the payment of any fee for the period 1992 to 1-7-2002 for sealing the taxi meters insisted by the Legal Metrology Department is paid.” 3. The contention of the 2nd petitioner is that as per Section 74 O.P. No. 1542/2003. -: 2 :- (2)(viii) of the Motor Vehicles Act, 1988, a meter is required to be provided in a motor cab only if prescribed. The 2nd petitioner contends that fitting of meters in autorickshaws in Manjeri was prescribed only in 2002 as evidenced by Ext. P4 and therefore the 2nd petitioner is liable to pay re-verification fee only from 2002 onwards. 4. The learned Government Pleader, on the other hand, submits that the requirement of fitting of meters in motor cabs has been prescribed by Kerala Motor Vehicles Rules, 1989, in 1989 and therefore the requirement of fitting meters in autorickshaws came into force in 1989 in Manjeri also. Ext. P4 does not mean that the requirement came into force only in 2002. That only shows that defaulters were given further time to fit autorickshaws with meters so that the penal consequences can be avoided. Therefore, according to the learned Government Pleader, since it was a requirement from 1989 onwards, all autorickshaws are liable to be fitted with a meter with effect from 1989 and get the meters re-verified every year by paying the re-verification fee every year. The 2nd petitioner cannot escape from the liability by his act in contravention of the Rules which, if permitted, would amount to taking advantage of one's own contravention of the rules, is the submission made. Learned Government Pleader would further submit that the 2nd petitioner is liable to pay re-verification fee for all the years from the date of purchase of the autorickshaw. 5. With the help of Rule 201, the 2nd petitioner would refute those contentions. According to him, Rule 201 contemplates a condition in the permit for requirement of fitting a taxi meter, which would, in turn, go to show that only when an autorickshaw is required by the Regional Transport Authority to be fitted with a taxi meter, the taxi is liable to be fitted with a taxi meter. In this case, according to the 2nd petitioner, his permit did not contain any O.P. No. 1542/2003. -: 3 :- condition that the autorickshaw should be fitted with a meter. In the absence of the same, the 2nd petitioner is not required to fit the autorickshaw with a taxi meter any time before 2002 and consequently, no re-verification fee also can be demanded for any period prior to 2000. He also points out that he had purchased the autorickshaw only in 1997, whereas by Ext. P5, the 2nd petitioner has been directed to pay additional re-verification fee from 1992 to 2002, which, in any event, is illegal, is the contention raised. 6. I have considered the rival contentions in detail. 7. Section 74(2)(viii) reads thus: “74. Grant of contract carriage permit: xx xx xx (2) The Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this act, attach to the permit any one or more of the following conditions, namely:- xx xx xx (viii) that, in the case of motorcabs, a taximeter shall be fitted and maintained in proper working order, if prescribed.” Rule 296 of the Kerala Motor Vehicles Rules, 1989 prescribes thus: “296. Taxi-meter:- (1) Necessity of:- (a) Every motor cab, except when ex-empted in this regard by the State or Regional Transport Authority, shall be fitted with a taxi meter, which shall be fixed to and operated from a non-driving wheel. (b) the vehicle shall not ply for hire unless that taxi meter bears the seal of the State or Regional Transport Authority to indicate that the taxi meter has been tested and is in working order. The seal shall be kept in tact. (c) The owner, driver, attendent of the vehicle or other person who breaks or tampers in any way with the seal, or who, with intention to deceive, tampers with the taxi meter or the O.P. No. 1542/2003. -: 4 :- driving mechanism thereof, shall be deemed to have committed a breach of this rule. (2) Inspection of:- (a) The taxi meter shall, whether for the first time or after repair or adjustment, be submitted to the State or Regional Transport Authority or any such officer as that Authority may from time to time depute in this behalf for examination and test. Wen it is produced for inspection, it shall bear the necessary holes for wires and be provided with the wires for the lead seals to be fixed to it. (b) The taxi meter shall be subjected to a practical road test of eight kilometres for each of the distance scales and time test for detention charges for not less than half an hour. If it passes the test, it shall be sealed in such a manner that it cannot be opened or adjusted without removing the seal. When a meter is inspected for the first time, the inspecting officer shall note the number of the meter in the certificate of registration of the vehicle: Provided that this rule shall not be applicable to a motorised cyclerickshaw converted as a motor cab.” Going by Rule 296, it is very clear that the requirement of fitting motor cabs with meters had come into force in Kerala with effect from the coming into force of the Rules. The Rule came into force in 1989. Therefore, going by Rule 296, the requirement of fitting an autorickshaw with a meter also has come into force with effect from 1989. However, Rule 201 of the Rules prescribes thus: “201. Taxi-meter:- (1) When a Regional Transport Authority requires that a motor cab shall be fitted with a taxi meter, the taxi meter shall be of a pattern approved by the State Transport Authority and shall be fitted in conformity with any instructions that may be issued by the State Transport Authority in this regard. (2) A permit older required to fit a taxi-meter shall produce it fitted to the vehicle before the Inspecting Authority constituted under Chapter IV of the Act so that it may be tested and sealed, and shall produce it for examination subsequently whenever the vehicle to which it is attached is inspected or whenever for any reason it has become necessary to break the seal. O.P. No. 1542/2003. -: 5 :- (3) No person shall drive or cause or permit to be driven any motor cab in the permit of which a condition is attached under clause (viii) of sub section (2) of section o74 of the Act if the taxi- meter is not fitted to the vehicle and sealed or if he knows or has reason to believe that it is not accurate or in proper working order.” From a reading of that Rule, one would understand that a taxi meter shall be fitted in a motor cab only when the Regional Transport Authority requires that meter can be fitted with a taxi meter. But, I am of opinion that Rule 201 must subserve to Rule 296. Therefore, Rule 201 should be read in conjunction with Rule 296 in which case as soon as Rule 296 has come into force, the Regional Transport Authority is duty bound to require every permit holder to fit an autorickshaw with a taxi meter. 8. Regarding the verification fee, Section 24 of the Standards of Weights and Measures (Enforcement) Act, 1985 contains the provisions for imposition of fees for verification of stamping of weights and measures. The fee for verification and stamping is prescribed under the Kerala Standards of Weights and Measures (Enforcement) Rules, 1992. Sub-rule (3) of Rule 17 reads thus: “17. Fee for verification and stamping:- xx xx xx (3) If the weight or measure is presented to the Inspector for re-verification after expiry of the validity of the stamp, and additional fee at half the rates specified in Sch. XII or Rs.50 in aggregate whichever is higher shall be payable for every quarter of year or part thereof.” Going by the above sub rule, the requirement of additional fee for re-verification is only when a weight or measure is presented to the Inspector for re-verification after the expiry of the validity of the stamp. That essentially contemplates an initial stamping, which is O.P. No. 1542/2003. -: 6 :- required to be re-verified after the expiry of the validity of stamp for which only additional fee is payable. In this case, it is not disputed before me that the petitioner has brought the meter for stamping before the 3rd respondent for the first time in 2002. Therefore, the question of re-verification and consequential payment of fees for re- verification does not arise. Perhaps, the 2nd petitioner may be liable to suffer the consequences for failure to fit the autorickshaw with a meter, but that does not mean that the 2nd petitioner should be liable to pay additional fee for re-verification as provided under sub-rule (3) of Rule 17 of the Kerala Standards of Weights and Measures (Enforcement) Rules, 1992. Therefore, Ext. P5 to the extent it requires the 2nd petitioner to pay additional fee from 1992 to 2002 is quashed. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/