Kerala High Court
Jaleel vs State Of Kerala on 15 March, 2002
Author: C.N. Ramachandran Nair
Bench: C.N. Ramachandran Nair
JUDGMENT C.N. Ramachandran Nair, J.
1. The petitioners are truck owners acting as Public Carriers for transporting goods across the country under National Permits issued under the Motor Vehicles Act and Rules. In some cases, the truck owners carry goods for their own purposes either for sale or for consumption as raw material or otherwise for industry. The vehicles involved are registered in various States, including the State of Kerala. The grievance of the petitioners is that the "gross vehicle weight" endorsed in the R.C. Book of the vehicles registered in Nagaland, and in some other States, is not accepted by the motor vehicle authorities in Kerala as the same is not in conformity with notification No. S.0.728(E) dated 18.10.1996 issued by the Central Government. According to the petitioners, the endorsement of gross vehicle weight made by these States, particularly, the State of Nagaland, is within the limits prescribed by Rule 95(1) of the Central Motor Vehicles Rules, 1989, hereinafter called the "Rules", which provides a table for computation of the gross vehicle weight on the basis of the number, size and ply rating of tyres fitted in each vehicle. So far as the registered owners of the trucks in Kerala are concerned, their grievance is that the endorsement of the gross vehicle weight by the motor vehicles registering authorities in Kerala is the lowest of the "maximum gross vehicle weight" fixed on the basis of three norms provided in Rule 95(2) of the Rules, which are the same as the criteria laid down in the notification above referred to. The vehicles registered in Nagaland and in some other States have "gross vehicle weight" endorsed in the registration certificates based on the load-capacity of load of all the tyres put together as provided under Rule 95(1), and the motor vehicle authorities of those States have ignored the mandate of Rule 95(2) which says the lowest of the gross vehicle weights coming under the three norms should be endorsed in the RC book.
2. I have heard all counsel appearing for the petitioners in the batch of cases and the learned Advocate General representing the State and the Central Government Standing Counsel. According to the learned Advocate General the Central Government is the sole authority to prescribe the norms for the maximum gross vehicle weight for each make and model of transport vehicle under Section 58(1) of the Motor Vehicles Act, 1988, hereinafter called the 'Act', and Rule 95 of the Rules is prescribed in this regard. The notification dated 18.10.1996 referred to in the Original Petitions is admittedly incorporated in Rule 95(2) of the Rules. He has also referred to the decision of the Supreme Court in N. Venkateswara Rao v. S.T.A. (1997) 2 SCC 320, whereunder the Supreme Court has rejected a challenge against the very same notification on the ground of excessive delegation.
3. The petitioners contend that various types of heavy duty trucks used by them can carry load permitted in terms of the norms prescribed under Rule 95(1) and refusal of the respondents to permit such load being carried, inspite of endorsement in the RC Books issued by the Nagaland and some other States is not justified. According to the petitioners, the only criterion to be adopted is the tyre capacity in terms of the table provided under Rule 95(1) and they are praying for a direction to the respondents to permit such load, whereas the respondents are willing to permit only the lowest of the gross vehicle weight computed by applying the norms provided in Rule 95(2) of the Rules. In respect of various vehicles registered in States like Nagaland, Haryana, etc., where higher gross vehicle weight is endorsed in the RC Books, the petitioners' contention is that the respondents cannot detain those vehicles on account of any excess load. The petitioners' grievance is that the respondents have no objection in transporting the so-called overloads which, according to them, are within the eligible limit under Rule 95( 1) but on payment of fine as per Section 194 of the Act and not on receipt of tax. In other words, respondents are regularly collecting fine on each load without demanding tax.
4. "Gross Vehicle weight" as defined under Section 2(15) of the Act means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle. Section 58 of the Act which gives power to the Central Government to specify the maximum gross vehicle weight in relation to each make and model of a transport vehicle is as follows:
58. Special provisions in regard to transport vehicles :-
(1) The Central Government may, having regard to the number, nature and size of the tyres attached to the wheels of a transport vehicle, (other than a motor cab), and its make and model and other relevant considerations, by notification in the Official Gazette, specify, in relation to each make and model of a transport vehicle, the maximum gross vehicle weight of such vehicle and the maximum gross vehicle weight of each axle of such vehicle.
(2) A registering authority, when registering a transport vehicle, other than a motor cab shall enter in the record of registration and shall also enter in the certificate of registration of the vehicle the following particulars, namely:
(a) the unladen weight of the vehicle;
(b) the number, nature and size of the tyres attached to each wheel;
(c) the gross vehicle weight of the vehicle and the registered axle weights pertaining to the several axles thereof; and,
(d) if the vehicle is used or adapted to be used for the carriage of passengers solely or in addition to goods, the number of passengers for whom accommodation is provided, and the owner of the vehicle shall have the same particulars exhibited in the prescribed manner on the vehicle.
(3) There shall not be entered in the certificateof registration of any such vehicle any gross vehicle weight or a registered axle weight of any of the axles different from that specified in the notification under Sub-section (1) in relation to the make and model of such vehicle and to the number, nature and size of the tyres attached to its wheels :
Provided that where it appears to the Central Government that heavier weights than those specified in the notification under Sub-section (1) may be permitted in aparticular locality for vehicles of a particular type, the Central Government may, by order in the Official Gazette direct that the provisions of this sub-section shall apply with such modifications as may be specified in the order.
(4) xxxxx (5) In order that the gross vehicle weight entered in the certificate of registration or a vehicle may be revised in accordance with the provisions of Sub-section (3) the registering may require the owner of transport vehicle in accordance with such procedure as may be prescribed to produce the certificate of registration within such time as may be specified by the registering authority.
The relevant portion of the notification issued by the Central Government under Section 58(l) is extracted below:
S.0.728 (E) dated 18.10.1996. In exercise of the powers conferred by Sub-section (l)of Section 58 of the Motor Vehicles Act, 1988 (59 of 1988) and in supersession of the notification of the Government of India in the Ministry of Surface Transport.
NOTIFICATIONS No. S.0.479 (E) dated the 4th July, 1996 the Central Government hereby specifies that in relation to the transport vehicles (other than motor cabs) of various categories detailed in the Schedule below, the maximum gross vehicle weight and the maximum safe axle weight of each axle of such vehicles shall, having regard to the size, nature and number of tyres and maximum weight permitted to be carried by the tyres as per Rule 95 of the Central Motor Vehicles Rules, 1989,be-
(i) vehicle manufacturers rating of the gross vehicle weight and axle weight respectively for each make and model as duly certified by the testing agencies for compliance of Rule 126 of the Central Motor Vehicles Rules, 1989, or
(ii) the maximum gross vehicle weight and the maximum safe axle weight of each vehicle respectively as specified in the schedule below for the relevant category, or
(iii) the maximum load permitted to be carried by the tyre(s) specified in the Rule 95 of the Central Motor Vehicles Rules, 1989, for the size and number of the tyres filled on the axle(s) of the relevant make and model, whichever is less:
Provided that the maximum gross vehicle weight in respect of all such transport vehicles, including mufti-axle vehicles shall not be more than the sum total of all the maximum safe axle weight put together subject to the restrictions, if any, on the maximum gross vehicles weight given in the said Schedule:
SCHEDULE Transport Vehicles Category Max GVW Tonnes Maximum Safe Axle Weight xxx XXX XXX XXX XXX Subsequent to the issue of the notification, the Central Government prescribed a table containing size and ply rating of tyres and the maximum weight permitted to be carried by such tyres under Rule 95(1) of the Rules. Similarly, Rule 95(2) provides therein among other things the maximum gross vehicle weight, and the maximum safe axle weight of each vehicle on the same lines as in notification above referred. Rule 126 of the Rules provides for testing of prototype of every motor vehicle by authorised agencies like Vehicle Research and Development Establishment of the Ministry of Defence of the Government of India or Automotive Research Association of India, Pune, or the Central Machinery Testing and Training Institute, Budni (MP) or the Indian Institute of Petroleum, Dehradun, to test whether, the vehicles manufactured conform to various provisions of the Act and Rules. Obviously the transport vehicles manufactured are subjected to test and certification under Rule 126 of the Rules on all aspects including the maximum weight they can carry.
5. The notification referred to above, as well as Rule 95(2) of the Rules provide for endorsement of maximum gross vehicle weight in the certificate of registration, which should be the lowest of the (i) vehicle rating of the gross vehicle weight and axle weight respectively as duly certified by the testing agencies for compliance of the Rule 126, or (ii) the maximum vehicle weight and maximum safe axle weight of each vehicle respectively as notified by the Central Government; or (iii) the maximum total load permitted to be carried by the tyres as specified in Sub-rule (1) for the size and the number of the tyres fitted on the axle (s) of the vehicle. The objection raised by the petitioners is that there is no criterion or basis for endorsement of only the lowest of the gross vehicle weight coming under these three norms. They contend that the vehicles are entitled to certification of gross vehicle weight by applying the formula of calculation based on tyre capacity contained in table of Rule 95(1). According to them, the tyres fitted by the manufacturers are suitable to carry a specific load and therefore the computation of gross vehicle weight based on the number, tyre size and ply rating is the most scientific method. Their case is that practically they have no difficulty in carrying such loads and the allegation of accident and other traffic hazards on account of so-called excess load over the minimum is without any basis. The petitioners contend that the gross vehicle weight sought to be regularised by them in excess of the minimum contained in Rule 95(2) is also the gross vehicle weight authorised by the Central Government in terms of Rule 95(1).
6. The learned Advocate General contended that the very same issue was considered by the Supreme Court in N. Venkateswam Rao v. S.T.A., (1997) 2 SCC 320. I have gone through the said judgment and I find that the Supreme Court has dealt with the very same issue and held that the Central Government has not abdicated its powers under Section 58(1) of the Act in favour of the manufacturers. The Supreme Court has taken note of Rule 126 of the Rules which provides for testing of every make and model of the motor vehicle manufactured by each manufacturer by an authorised agency. The Government is not going by the certification by the manufacturer, but on the basis of certification issued by a technical agency authorised by the Government under Rule 126 of the Rules. Therefore I do not find any substance in the contention of the petitioners that they are entitled to certification of the highest of the maximum gross vehicle weight coming under three norms provided in the notification as well as Rule 95(2) as against the lowest prescribed therein. The contention of the petitioners is that the vehicles registered in States like Nagaland, the maximum gross vehicle weight referred to in Rule 95(2) is endorsed in the RC Book as against the minimum gross vehicle weight and the same will bind the State. This contention cannot be accepted. Section 46 of the Act reads as follows:
"46. Effectiveness in India of registration:-Subject to the provisions of Section 47, a motor vehicle registered in accordance with this Chapter in any State shall not require to be registered elsewhere in India and a certificate of registration issued or in force under this Act in respect of such vehicle shall be effective throughout India.
From the above, it is clear that a certificate of registration is effective only if the same is issued "in accordance with this chapter in any State". Therefore registration not in accordance with the provisions of the Act and Rules to the extent of such inconsistent endorsement shall not bind other State motor vehicle authorities. All that Section 46 says is that a registration certificate issued in accordance with the provisions of the Act and Rules only shall be binding on other State authorities and any violation to that extent in the RC book will riot bindthe other State authorities, and it will be open to them to take action. In other words, the gross vehicle weight admittedly endorsed in the RC book issued by the motor vehicle authorities of Nagaland will not bind the motor vehicle authorities in other States, so as the same is not consistent with Rule 95(2) of the Rules, and appropriate action can be taken by the motor vehicle authorities. Therefore the motor vehicle authorities in Kerala are justified in taking appropriate action in such cases authorised under the Act and Rules.
7. The petitioners have a case that the vehicles used for transport by them are able to carry much higher load than the minimum authorised in the RC book in terms of Rule 95(2). All States in this country are collecting fine and permitting the transport of such excess loads over the permitted loads. Instances of collection of fine by the very same authorities in respect of same vehicle several times have been pointed out by the petitioners. The apprehension of accident, road safety, etc., on account of transport of such excess load also is not substantiated and no statistics on these aspects are furnished by the State. It has come to the notice of this Court that the State is collecting fine under Section 194 of the Act for carrying excess load, and massive corruption is said to be taking place at check-posts for permitting such vehicles with the load. The petitioners contended that in all cases of excess load they are permitted to operate after the checkpost authorities collect money in the name of penalty without even issuing receipt. It is for the State to arrange to cross-check vehicles released from the checkposts and ensure that overload is correctly noted and penalty collected is properly receipted and reaches Government treasury. It is for the State Government to take appropriate action on these matters. However, this is not a ground to permit excess load. Of course, if what the petitioners allege is the factual position, the State should not allow this pernicious system of collection of penalty on regular basis instead of collection of tax to continue. Under-utilisation of capacity of transport vehicles will add to transportation cost leading to cost escalation of goods which ultimately contributes to inflation. Practically every inter-State operator is a petitioner in this Court contending that they are able to transport higher loads than the permitted load and are prepared to pay higher tax instead of the huge penalty now being paid by them, besides the harassment and demand of bribe. I hope the grievance highlighted by the transporters will be an eye-opener to the State and Central Governments to reconsider the matter and make necessary changes permitting maximum load without sacrificing safety.
8. Some of the transporters are operating their vehicles in dedicated routes for regular customers transporting cement, steel, industrial raw materials, etc., only on established National Highways. The manufacturer's certification of goods carrying capacity for a vehicle and the testing under Rule 126 by the authorised agency are for operation of vehicles all over including difficult hilly terrain and in all weather and road conditions. However, there may be operators operating trucks only on even roads, national highways, etc., using dedicated routes for regular customers and usual cargo. In such cases certainly those vehicles are entitled to certification of higher load over the normal load having regard to the special conditions conducive to such operation. The proviso to Section 58(3) also takes into account this situation where under the Central Government can permit certification of higher loads in such cases. Nobody has pointed out any situation whereunder the Central Government has issued any notification for permission under the proviso to Section 58(3). It is also pertinent to note that the excess load in respect of which certification in the RC book is sought for by the petitioners is also within the permissible limits on the basis of the number, nature and size of the tyres, ply rating and capacity of the tyres contained in table to Rule 95( 1) of the Rules. In the circumstances, I direct the Central Government to consider the applications in this regard filed by the truck owners under the proviso to Section 58(3) of the Act and issue appropriate orders. The petitioners have also brought to my notice vehicles of special types such as the Volvo brand which are designed to carry heavy loads and have unique features which require separate norms for certification of gross vehicle weight except in terms of Rule 95(1) or (2). The owners or manufacture of those type of vehicles are free to take up the matter with the Government. However, in the absence of any such order, I hold that the petitioners are not entitled to certification in their RC book of loads in excess of the limit prescribed under Rule 95(2) of the Rules and the notification above referred to, which is the lowest of the gross vehicle weight determined in accordance with three sets of norms provided in Rule 95(2).
9. The petitioners have been operating their vehicles with higher load after obtaining endorsement in the RC book pursuant to interim orders of this Court. Counsel for the petitioners have stated that taxes have been paid for the full first quarter of 2002 and they prayed that in view of the payment of tax upto 31st March, 2002, they may be permitted to operate the vehicles with the higher load. Having regard to the -fact that there is only less that two weeks left out and the petitioners have paid tax in advance, there will be direction to the respondents to permit the operators to operate their vehicles for transporting the load endorsed in the RC Book pursuant to the interim orders of this Court in all cases where tax is paid upto 31st March, 2002. Such petitioners will produce RC books before the concerned R.T.O. for reversal of endorsements of higher weight with effect from 1.4.2002. However, the judgment will be effective for those who have not got endorsement after payment of tax in Kerala for the quarter ending 31st March, 2002.