Gauhati High Court
Meghalaya Commercial Truck Owners & ... vs The State Of Meghalaya & Ors on 11 April, 2011
Author: T Vaiphei
Bench: T Vaiphei
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
SHILLONG BENCH
W.P.(C) No. 42(SH) of 2011.
Meghalaya Commercial Truck
Owners & Operator Association
Represented by its President
Shri Augustine Shanpru
S/o (L) H Shanpru
R/o Lumkshaid, Lower Mawprem
Shillong-793002 - Petitioner.
-VS-
1.The State of Meghalaya
represented by the Chief
Secretary to the Govt. of Meghalaya,
Shillong.
2. The Principal Secretary
to the Govt. of Meghalaya
Transport Department,
Meghalaya, Shillong
3. The Commissioner & Secretary to
the Govt. of Meghalaya,
Shillong.
4. The Director of Mines and Minerals
Govt. of Meghalaya, Shillong. Respondents
BEFORE THE HON'BLE MR JUSTICE T VAIPHEI For the Petitioner: Mr Subir Sen, Mr HL Shangreiso, Advs For the Respondents: Mr KS Kynjing, Advocate General Mr ND Chullai, Sr GA Date of hearing : 10.03.2011.
Date of judgment : 11.04.2011
JUDGMENT AND ORDER
The legality of the Notification dated 11-2-2011 issued by the State-respondents imposing restrictions on the height of coal laden 2 trucks up to a maximum of 1 metre measured from the surface of the body of the trucks over which the body rests while plying within the State of Meghalaya is called into question by the petitioner-association in this writ petition and of prohibiting the entry and plying of such vehicles within Meghalaya along the NH 44 Shillong-Jowai-Malidar, NH 44E Nonjgstoin-Shillong, NH 40 Gauhati-Shillong, NH 62 Dudnoi- Baghmara-Dalu and the State Highway from Nonstoin-Tura via Shillong.
2. The material facts of the case, as pleaded by the petitioner- association, are that their association under the name and style of "MEGHALAYA COMMERCIAL TRUCK OWNERS AND OPERATORS ASSOCIATION" comprises of truck owners plying their trucks in the National Highways running through the State of Meghalaya and is formed for their economic and commercial well being. The Districts of Jantia Hills, East Khasi Hills and Ri-bhoi are connected with the rest of the country by National Highway Nos. 37, 40 and 44 and in the absence of other mode of transportation, these Highways serve as the lifeline not only for these three districts but also for the whole of Meghalaya. The development, maintenance and management as well as control of the National Highways is regulated by the National Highways Act, 1956 ("the Act" for short) and the National Highways Authority of India Act, 1988. Under the Motor Vehicles Act, 1988, some powers have been delegated to the Transport Department of the State Governments, which includes weighment of vehicles, etc. Section 138 of the Motor Vehicles Act, 1988 further empowers the State Governments to make rules for the purpose of weighment of vehicles and other duties entrusted to them under the Act pertaining to traffic control, etc. The 3 members of the petitioner-association are having different types of vehicles such as heavy commercial trucks, light goods vehicles, etc., and these are plying in various National Highways for transporting minerals and other materials from the State of Meghalaya to other places. The trucks belonging to the petitioner-association carrying coals, minerals, etc. with the appropriate weight and measurement are regulated and controlled by the State Government through various weigh bridges run by it or through its authorised lessee; the members of the petitioner-association are regularly paying the weigh bridge fixed and imposed by the State-respondents from time to time. Much to the consternation of the petitioner-association, the impugned notification has been issued by the State-respondents purportedly in pursuance of the order dated 9-11-2005 read with the order dated 6-12-2010 passed by the Hon‟ble Supreme Court in WP(C) No. 136 of 2003 and under Section 113(1) of the Motor Vehicles Act, 1988. These restrictions have seriously affected their rights and interests of the members of the petitioner-association inasmuch as they do not only carry coal but also other minerals such as house appliances, furniture, essential commodities, clothes etc., which have bigger size/volume but less weight than coal, limestone, etc. depending on the season and the availability of hirers. Aggrieved by this, they are now approaching this Court for appropriate directions.
3. The writ petition is resisted by the State respondents, who have now filed their affidavit-in-opposition through the Secretary to the Government of Meghalaya, Transport Department. The contentions of the State-respondents are that Section 113 of the Motor Vehicles Act empowers the State Government to impose restriction on the laden 4 weight of vehicles to be driven on public roads, and of late the issue about over-loading of vehicles, especially trucks, has frequently come up from time to time in the public domain and has, therefore, engaged the attention of the State Government. The matter has even gone up to the Apex Court by way of some writ petitions. The attempt made by the State Government hitherto to check and control the overloading of trucks has not been very successful due to the multitude of trucks plying on the highways every hour of every day and shortage of manpower to carry out regular checking of the trucks. It has been realized by the State Government that control of overloading trucks cannot be effectively made so long as the trucks are allowed to have large bodies with huge loading space which enables truckers to overload their trucks. If such trucks have smaller bodies with lesser loading space, then the problem of overloading can eliminated. This prompted the State-respondents to restrict the size of the bodies of the trucks so as to ensure that the trucks carry their loads within the permissible limit of 9 metric (?) tons. This is how the impugned notification came to be issued.
4. It is also the case of the State-respondents that they have made their calculation, based on the volumetric determination of the weight of coal carried by trucks before arriving at this decision. According to the answering respondent, a majority of trucks plying on the National Highways are coal carrying trucks which are responsible for overloading and other traffic violations and accidents, and the Government is contemplating restriction of the body height of other trucks plying on the National Highways and State Highways of Meghalaya after the impugned notification, which relates only to coal 5 trucks, is effectively implemented on the ground. It is a fact that the Apex Court in the cited case did not mention anything about restricting the height of the bodies of the trucks but only mention restricting the loading of trucks to 9 MT (9 tons?). However, it is found that controlling of overloaded trucks, especially of coal carrying trucks, is extremely difficult due to practical of checking of each and every trucks and the impugned decision is found to be the most effective way of controlling and checking of such vehicles at source. The Government of Bangladesh recognized the volume metric determination of the weight of coal consignment transported by trucks. The petitioner nowhere in their writ petition states that the height restricted to a maximum of one metre is less than 9 tons; it is a well-known fact that coal laden truck after crossing the weighbridges will re-load the coal beyond the permissible limit of 9 tons. It is with a view to eliminate such malpractices that the impugned notification has been issued. These are the sum and substance of the pleaded case of the State-respondents.
5. In order to appreciate the controversy involved in this writ petition, it will be useful to refer to the relevant portion of the impugned notification, which reads thus:
"GOVERNMENT OF MEGHAYALA TRANSPORT DEPARTMENT NOTIFICATION Dated Shillong the 11th February 2011.
No. TPT.123/2008/214: In pursuance of the Supreme Order dated 9- 11-2005 in WP(C) 126 of 2006 read with order dated 6-12-2010 and to ensure compliance of all trucks especially coal carrying trucks plying in the State of Meghalaya with the stipulation of the Order of Supreme Court for trucks of 16.2 GVW with two axles to carry a load of about 9 MT (sic), the State Government hereby stipulates under Section 113(1) of the Motor Vehicles Act, 1988 that all coal carrying trucks with this specification shall have a body height restricted to a maximum of 1 6 metre, measured from the surface of which the body rests, while plying within the State of Meghalaya.
Further, the State Government under Section 113(1) Motor Vehicles Act, 1988 prohibits entry and plying of such coal carrying vehicles within Meghalaya along the NH 44 Shillong-Jowai-Malidar, NH 44E Nongstoin-Shillong, NH 40 Gauhati-Shillong, NH 62 Dudnoi- Baghmara-Dalu and the state highway from Nongstoin-Tura via Shillong, that do not conform to the body height restriction of 1 metre as referred to above.
This Notification shall take effect from the 22nd February 2011.
Sd/-
Principal Secretary to the Govt. of Meghalaya, Transport Department."
The impugned Notification, simply stated, thus (1) stipulates that all coal carrying trucks shall, while plying within the State of Meghalya, have a body height only up to 1 metre, which is to be measured from the surface on which its body rests and (2) prohibits the entry and plying of coal carrying vehicles not conforming to the above stipulations within the State of Meghalaya along NH 44 Shillong-Jowai- Malidar, NH 44 E Nongstoing-Shillong, NH Gauhati-Shillong, NH 62 Dudnoi-Baghmara-Dalu and the State highway from Nongstoin-Tura via Shallang. The impugned Notification has been issued by the respondent authorities under Section 113(1) of the Motor Vehicles Act, 1988 purportedly under the direction of the Apex Court contained in the order dated 6-12-2010. Since the bone of contention between the parties relates to the power of the State Government to issue the impugned Notification, it may also this stage be profitable to reproduce here the provisions of Sections 110 and 113 of the Motor Vehicles Act:
"110. Power of Central Government to make rules.─(1) The Central Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all or any of the following matters, namely:-7
(a) the width, height and overhand of
vehicles and of the loads carried;
(b) the size, nature, maximum retail price
and conditions of tyres, including embossing thereon of date and year of manufacture, and the maximum load carrying capacity;
(c) brakes and steering gear; (d) the use of safety glasses including
prohibition of the use of tinted safety glasses;
(e) signalling appliances, lamps and
reflections;
(f) speed governors;
(g) the emission of smoke, visible vapour,
sparks, ashes, grit or oil;
(h) the reduction of noise emitted by or
caused by vehicles;
(i) the embossment of chassis number and
engine number and the date of manufacture;
(j) safety belts, handle bars of motor cycles,
auto dippers and other equipments essential for safety of drivers, passengers and other road-users;
(k) standards of the components used in the
vehicle as in-built safety devices;
(l) provisions for transportation of goods of
dangerous or hazardous nature to human life;
(m) standards for emission of air pollutants;
(n) installation of catalytic convertors in the
class of vehicles to be prescribed;
(o) the placement of audio-visual or radio or
tape recorder type of devices in public vehicles;
(p) warranty after sale of vehicle and norms
therefore:
Provided that any rules relating to the matters dealing with the protection of environment, so far as may be, shall be made after consultation with the Ministry of the Government of India dealing with environment.
(2) Rules may be made under sub-section (1) governing the matters mentioned therein, including the manner of ensuring the compliance with such matters and the maintenance of motor vehicles in respect of such matters, either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or in particular circumstances.
(3) Notwithstanding anything contained in this section,─
(a) the Central Government may exempt any class of motor vehicles from the provisions of this Chapter;
(b) a State Government may exempt any motor vehicle or any class or description of motor 8 vehicles from the rules made under sub-section (1)subject to such conditions as may be prescribed by the Central Government.
"113. Limits of weight and limitation on use.─(1) The State Government may prescribe the conditions for issue of permits for transport vehicles by the State or Regional Transport Authorities and may prohibit or restrict the use of such vehicles in any area or route.
(2) Except as otherwise may be prescribed, no person shall drive or cause or allow to be driven in any public place any motor vehicle which is not fitted with pneumatic tyres.
(3) No person shall drive or cause or allow to be driven in any public placed any motor vehicle or trailer─
(a) the unladen weight of which exceeds the unladen weight specified in the certificate of registration.
(b) the laden weight of which exceeds the gross vehicle weight specified in the certificate registration.
(4) Where the driver or person in charge of a motor vehicle or trailer driven in contravention of sub-
section (2) or clause (a) of sub-section (3) is not the owner, a Court may presume that the offence was committed with the knowledge of or under the orders of the owner of the motor vehicle or trailer.
6. Mr. S. Sen, the learned counsel for the petitioner, submits that the impugned Notification is beyond the direction of the Apex Court, and the said order of the Apex Court never directed the State- respondents to restrict the height of the coal carrying trucks plying within the State of Meghalaya; all that the order of the Apex Court directed is that such of the trucks of 16.2 GVW with two axles should carry a minerals not exceeding 9 metric tonnes (sic). In fact, according to the learned counsel, fixing the height of the coal carrying trucks to a maximum of 1 metre was never the issue before the Apex Court ion WP(C) No. 136 of 2003. He further contends that under Section 110(1) of the Act, only the Central Government is empowered to regulate the 9 height of trucks/vehicles and no such power is conferred upon the State Government for fixing the height of coal carrying trucks. He maintains that the members of the petitioner-association not only carry coal but also carry other commodities during off-season or when other goods/articles are available for hire, which may have bigger volumes/sizes but less weight than coal, limestone, etc. and that when lighter materials are carried in their trucks, the height of the trucks should be kept higher so as to prevent the falling of the goods on the one hand and to put the vehicle to optimum use without exceeding the permissible 9 tonnes. It is also the contention of the learned counsel for the petitioner-association, that the trucks belonging to the members of the association are custom-made for carrying coal and the impugned Notification has make them workless during off-seasons. He, therefore, argues that restricting the height of the trucks belonging to the petitioner-association has forced them to incur huge expenses by re- arranging the height of the truck and, above all, seriously affect their daily business and the impugned Notification is thus liable to be quashed as it suffers from the vice of unreasonableness and is ultra vires the provisions of Section 110(1) of the Motor Vehicles Act.
7. On the other hand, Mr. K.S. Kynjing, the learned Advocate General, contends that the impugned Notification has been issued by the State-respondents to check and control the widespread practice by truck owners to load trucks with coals beyond the permissible weight limits imposed by the State-respondents: if left uncontrolled and unchecked, there is every danger of vehicular accidents, as already happened, which is in public interest and for public safety. Moreover, submits the learned Advocate General, the State has been losing 10 enormous revenues every year because of over-loading of trucks with coal, limestone, etc. According to the learned Advocate General, due to shortage of traffic police, it is also not physically possible on the part of the Transport Department to detect the practice of overloading of trucks on the aforesaid highways: the new system introduced in the impugned Notification is considered to be a more effective way of complying with the direction of the Apex Court. He maintains that there is no violation of the provisions of the Motor Vehicles Act, 1988 inasmuch as the Central Government does not impose any restriction on the height of coal laden truck. He also draws my attention to the volumetric determination of the weight of coal consignment transported by vehicle by using six coal laden trucks to demonstrate that even when the height of such coal laden trucks are between 1.6 metre and 1.45 metre, the minimum excess quantity being transported is not less than 7.54 tonnes. He, therefore, submits that the impugned Notification does not call for interference from this Court.
8. The Central Government, in exercise of the rule-making powers conferred upon it by Section 110 of the Motor Vehicles Act, 1988, framed a set of rules known as "the Central Motor Vehicles Act, 1989 ("the Rules" for short). Rule 93(4) of the Rules is relevant and is reproduced herein below:
"(4) The overall height of a motor vehicle measured from the surface on which the vehicle rests,─
(i) in the case of a vehicle other than a double-decked transport vehicle shall not exceed 3.8 metres;
(ii) in the case of a double-decked transport vehicle shall not exceed 4.75 metres;
(ii-a) in the case as tractor trailer goods vehicle shall not exceed 4.20 metres.
11
(iii) in the case of a laden trailer carrying ISO series 1 Freight Container shall not exceed 4.2 metres:
Provided that the provisions of clauses (i) to (iii) shall not apply to fire-escape tower wagons and other special purpose vehicles exempted by general or special order of registering authority.
Rule 4(i) is the appropriate provision in this case, which says that the overall height of a motor vehicle other than a double-
decked transport vehicle shall not exceed 3.8 metres. Thus, the Central Government has prescribed the maximum height permissible for a vehicle like coal carrying truck to be 3.8 metres. What State-respondent prescribed in the impugned Notification is a maximum height of one metre from the surface on which vehicle rests. On reading and re-
reading the provision of Rule 93 (4)(i), I have no doubt in my mind that the Central Government only prescribes the maximum height which can be permitted for a coal carrying vehicle or, for that matter, any truck other than a double decked vehicles indicated therein but does not prescribe that the height of such vehicle should not less than 3.8 metres from the surface on which the truck rests. The question to be determined then is whether the impugned Notification is repugnant to or inconsistent with Rule 93(4)(i) of the Rules? In my judgment, the answer is „No‟. The law is well-settled that repugnancy has to be founded on the impossibility of co-existence. The new restriction on the height of a coal carrying vehicle imposed by the impugned Notification will undoubtedly affect the interest of coal laden vehicles plying on the National and State Highways of the State of Meghalaya, but that does not necessarily mean that the restriction is anything more than an addition or supplement to Rule 93(4)(i) of the Rules. Far from being in conflict with Rule 93(4)(i), the impugned Notification complement and 12 supplement the provisions of the Rules. That being so, the doctrine of ultra vires cannot be attracted in this case. To borrow from the observations of the Apex Court in Paramjit Bhasin v. Union of India, (2005) 12 SCC 642, the object for which the maximum height has been fixed by the State-respondents is crystal clear. Overloading causes significant damage to the road surface and also cause pollution through auto-emissions. Besides, overloaded vehicles are safety hazards not only for themselves, but also for other road users. Responsibility for enforcing the provisions of the Motor Vehicles Act and Central Rules being that of the State Government, no exception can be taken if the State Government decides to adopt more practical method of detection and prevention of overload vehicles when such vehicles are plying on the designated National and State Highways. Complementing or supplementing Central laws by the State Government to ensure effective implementation of such laws cannot be assailed as long as the methods adopted such as the impugned Notification falls within the four corners of Rule 93(4)(i) of the Rules. In my opinion, the impugned Notification is simply filling the gap left behind by the Central Government for more effective implementation of the Rules: both the impugned Notification and Rule 93(4)(i) can co-exist. As for the contention of Mr. Sen, the learned counsel for the petitioner-association that by the impugned restriction, the trucks belonging to the members of the association will not be able to carry other lighter goods requiring high body when these trucks do not carry coal, the learned Advocate General submits that the apprehension of the petitioner-association in this behalf is misplaced as these trucks are exclusively acquired for carrying coal and other minerals and invites my attention to the first sentence of paragraph 2 of the writ petition to say that the trucks 13 belonging to members of the petitioner-association "are engaged in the business of transporting coals, mostly using the National Highways Nos. 37, 40 and 44".