Delhi High Court
Lalit Mohan Sharma vs Union Of India & Anr on 29 January, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th January, 2016
+ W.P.(C) No.3626/2011
LALIT MOHAN SHARMA ..... Petitioner
Through: Mr. Pardeep Dahiya, Adv.
Versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr. Ruchir Mishra and Mr. Mukesh
Kumar Tiwari, Advs. for UOI.
AND
+ W.P.(C) No. 5691/2012 & CM No.28295/2015 (for deletion of
respondents no.2,3,4,5&6)
LALIT MOHAN SHARMA ..... Petitioner
Through: Mr. Pardeep Dahiya, Adv.
Versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Rajesh Gogna, CGSC for R-1.
Ms. Rachna Gupta, Adv. for R-2.
Ms. Sumedha Dang, Adv. for R-6.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. W.P.(C) No.3626/2011 has been filed seeking mandamus to the
respondent no.2 Bureau of Indian Standards (BIS) to a) establish and publish
Indian Standard for the safety device "Auto-dipper" claimed by the
W.P.(C) Nos.3626/2011 & 5691/2012 Page 1 of 15
petitioner to be an essential safety device under Section 110 of the Motor
Vehicles Act, 1988; and, b) to notify the foreign standard J-565: Semi
Automatic Headlamp Beam Switching Devices in which the petitioner was
holding a patent (and which is stated to have expired in January, 2016) as
Indian Standard under Rule 8 of the Bureau of Indian Standards Rules, 1987
till the time respondent no.2 BIS further evolves and formulates its own
standard.
2. W.P.(C) No.5691/2012 is filed impleading, besides Ministry of Road,
Transport and Highways, Government of India, also, National Road Safety
Council, Vehicle Research and Development Establishment, Automotive
Research Association of India, Central Farm Machinery Testing and
Training Institute and Council of Scientific and Industrial Research (CSIR)-
Indian Institute of Petroleum and seeking directions for mandatory
implementation of Rule 106 of the Motor Vehicles Rules, 1989 read with
110(1)(j) of the Motor Vehicles Act, 1988 and for mandatory fitment of
„Auto-Dipper‟ in every motor vehicle (existing or new).
3. Needless to state that the petitions were entertained, pleadings got
completed and additional affidavit filed.
4. The counsels have been heard.
W.P.(C) Nos.3626/2011 & 5691/2012 Page 2 of 15
5. Section 110 of the Motor Vehicles Act empowers the Central
Government to make rules regulating the construction, equipment and
maintenance of motor vehicles and trailers with respect to all or any of the
maters specified therein. Clause (j) thereunder is as under:-
"(j) safety belts, handle bars of motor cycles, auto-dippers
and other equipments essential for safety of drivers,
passengers and other road users."
6. The counsel for the petitioner contends that the legislature has thus
treated „Auto-Dipper‟ as essential to the safety of drivers, passengers and
other road users. He argues that in exercise of the power under Section
110(j), the Central Government in the year 1993 amended Rule 125 of the
Motor Vehicle Rules to in Sub-Rules (3) and (4) thereof provide that a)
within three years therefrom, every goods vehicle and heavy passenger
vehicle shall be equipped with an „Auto-Dipper‟; and b) within four years
therefrom every motor vehicle other than motor cycles and three-wheeler of
engine capacity not exceeding 500 cc shall be equipped with an „Auto-
Dipper‟.
7. Attention is next invited to the amendment dated 15th January, 1998 to
the Motor Vehicle Rules providing in Rule 125(4) thereof that every motor
W.P.(C) Nos.3626/2011 & 5691/2012 Page 3 of 15
vehicle other than a motorcycle and three-wheeler of engine capacity not
exceeding 500 cc shall be equipped with an „Auto-Dipper‟.
8. It is contended that the petitioner first approached the BIS in the year
2010 for establishing the standard for a „Auto-Dipper‟ but BIS asked the
petitioner to pay cost of Rs.2 crores and upon failure of the petitioner to pay
the same, the BIS did not establish the standard of an auto-dipper and
resulting in, notwithstanding the amendments of the years 1993 and 1998 to
the Motor Vehicle Rules, the provision for mandatory installation of auto-
dipper in the motor vehicles not being implemented, to the prejudice of the
petitioner who as aforesaid was holding the patent therefor.
9. Hence these petitions.
10. The counsel for the petitioner has next drawn attention to Rule 106
titled "Deflection of lights" of the Motor Vehicle Rules to contend that the
same also provides for the headlamps of the motor vehicle to be capable of
being deflected downwards by the driver in such manner as to render it
incapable of dazzling any approaching person and of being extinguished by
the operation of a device which at the same time causes a beam of light to be
emitted from the lamp. It is contended that the amendments aforesaid of the
W.P.(C) Nos.3626/2011 & 5691/2012 Page 4 of 15
years 1993 and 1998 in Rule 125 were to give effect to the said provision in
Rule 106.
11. The counsel however on enquiry admits that Rule 106 by itself does
not mention an „Auto-Dipper‟ but contends that Rule 125(4) as introduced in
1993 and 1998 supra mentions an „Auto-Dipper‟.
12. Attention of the counsel for the petitioner has been invited to the fact
that Rule 106 has been amended vide Notification dated 24th April, 2014 and
which has deleted the clause thereof on which the counsel for the petitioner
was placing reliance. The counsel agreed that Rule 106 as now stands
pursuant to the amendment of 24th April, 2014 does not advance the case of
the petitioner insofar as for mandatory fitment of „Auto-Dipper‟ in motor
vehicles.
13. It is the contention of the counsel for the respondent Union of India
(UOI) that even Rule 125 was amended yet again on 12th September, 2001
and sub Rule (4) providing for mandatory fitment of the „Auto-Dipper‟ in
the motor vehicles has been deleted. He further points out that even after the
amendment of 1993 and 1998, the date of implementation of the provision
for mandatory fitment of motor vehicle with „Auto-Dipper‟ was extended
from time to time and never enforced, till ultimately the said provision was
W.P.(C) Nos.3626/2011 & 5691/2012 Page 5 of 15
dropped as aforesaid in the year 2001. He thus contends that the premise on
which these petitions have been filed i.e. that fitment of automobiles with
„Auto-Dipper‟ is mandatory, is erroneous.
14. The counsel for the respondent UOI has further drawn attention to the
additional affidavit dated 26th November, 2015 in which it is stated as
under:-
"3. THAT I say and submit that matter was discussed
in detail in the meeting held on 6.10.2015 under the
Chairmanship of Joint Secretary (Transport). It was
informed that the Technical Committee which was earlier
constituted to examine and submit a report on auto-
dipper comprised also of representatives from CIRT
(Central Institute of Road Transport), VRDE (Vehicle
Research and Development Establishment) and OEMs
where ARAI was a facilitator only and not the sole testing
agency which conducted the test and submitted the report.
Besides, separate reports have also been received from
CIRT, ICAT (International Center for Automotive
Technology) and VRDE stating that fitment of auto-
dipper is not necessary and safe in today's traffic
scenario.
4. ICAT's views lab trials at ARAI and field trials at
VRDE (in 2000) as well as Hyderabad (in 2001) had been
conducted to evaluate the on road performance and safety
related aspects of this concept. During these trials
various combinations of the vehicles were tried (bus-bus,
truck-car, car-car etc.). As a result of these experiments,
it was discovered that the concept of Auto-dipper does not
add anything to safety but is more of a safety hazard. The
details of the experiments conducted and their
conclusions are available at ARAI for reference. A copy
W.P.(C) Nos.3626/2011 & 5691/2012 Page 6 of 15
of ICAT's views is annexed hereto and marked as
Annexure A-1.
5. THAT VRDE has furnished its views that Auto
Dipper is a device which will dip when an incoming
vehicle is in high beam. At the same time, the ongoing
vehicle also shall go into dip beam mode and both vehicle
shall cross each other in dip mode and after crossing
shall come back to main beam automatically. The
function of auto dipper as a separate unit is not required
as there is a new standard coming up i.e. Automotive
Industry Standard AIS-127 in the line with ECE R123
standard used in European countries. This standard is for
Adaptive Front Lighting System (AFLS) in which auto
dipper function is one of the functions. The Govt. wanted
to incorporate this advanced device as a mandatory
fitment as it also covers adaptive lighting on to the road
which takes care of incoming traffic lighting conditions,
ongoing traffic conditions, ambient lighting conditions
and cornering while taking, a turn. This device once
made mandatory the function of auto dipper with
additional safety feature will be available to the vehicle
users. A copy of VRDE views annexed hereto and marked
as Annexure A-2.
6. The standard AIS-127 is finalised and will but put
up to the next decision making body CMVR TSC and after
approval will be made mandatory with specific lead
times. This will solve all the problems of dazzling on the
road by various vehicles."
15. What thus becomes evident is, that when the petitioner first
approached the BIS in the year 2010 for establishing and publishing the
standards of „Auto-Dipper‟, not only was there no provision for mandatory
fitment of „Auto-Dipper‟ in motor vehicles but the provision to that effect
W.P.(C) Nos.3626/2011 & 5691/2012 Page 7 of 15
introduced in the year 1993 and 1998 as aforesaid was never implemented
and had been expressly dropped in the year 2001.
16. It has in the circumstances been enquired from the counsel for the
petitioner as to what is the right of the petitioner to claim the reliefs in the
petition.
17. The counsel for the petitioner has again drawn attention to Section 110
supra of the Motor Vehicles Act and has contended that the legislature
having deemed auto-dipper to be essential for the safety of drivers,
passengers and other road users, the decision of the Central Government not
to make the same mandatory is fallacious.
18. Attention of the counsel has however been drawn to the word „may‟
used in Section 110 (1) of the Motor Vehicles Act while empowering the
Central Government to make rules with respect to "all or any of the
following matters" contained in clauses (a) to (p) thereunder and it has been
enquired as to how a mandate can be sought against the subordinate
legislature, as the status of the Central Government is under Section 110(1)
supra, to make a particular law when the legislature itself has left it in the
discretion of the Central Government. It has further been enquired that
whether not, if the legislature was of the view that provision for auto-dipper
W.P.(C) Nos.3626/2011 & 5691/2012 Page 8 of 15
is mandatory, no discretion would have been left to the Central Government
as is also evident from the use of expression "with respect to all or any of the
following matters" in Section 110 (1).
19. The counsel for the petitioner has relied on the judgment dated 24 th
July, 2015 in Crl.M.P. No.16086/1997 titled Dilip K. Basu Vs. State of West
Bengal in para 9 whereof the Supreme Court, while interpreting Section 21
of the Protection of Human Rights Act, 1993 also using the word „may‟
while providing for the State Governments to constitute the State Human
Rights Commission, held that the same could not be read as leaving it to the
discretion of the State Governments whether to set up the State Human
Rights Commission or not. On the basis thereof it is contended that similarly
mere use of the word „may‟ in Section 110 of the Motor Vehicles Act does
not mean that the Central Government has a discretion whether to regulate
the motor vehicles by providing for installation of „Auto-Dipper‟ therein
which were deemed by the legislature to be essential for safety of drivers,
passengers and other road users.
20. I am afraid no parallel can be drawn between the two provisions.
Though it is no longer res integra that the words „may‟ and „shall‟ are
capable of being interpreted interchangeably but in the context of Section
W.P.(C) Nos.3626/2011 & 5691/2012 Page 9 of 15
110, it cannot be said that the legislature intended the Central Government to
necessarily make the Rules with respect to the matters mentioned therein.
What prevailed with the Supreme Court in Dilip K. Basu supra to interpret
the word „may‟ as „shall‟ was the purpose for creation of State Human
Rights Commission i.e. to protect the fundamental rights of the citizens. It
was held that the functions to be performed by the State Human Rights
Commission are critical for the promotion and protection of human rights at
the State level and the State Government cannot frustrate the object
underlying the legislation. However Section 110 has not only used the word
„may‟ but also the words "with respect to all or any of the following matters"
and Section 110 (3) also leaves it to the discretion of the Central
Government as well as State Government to exempt any class of motor
vehicles from the provisions of the Chapter of the Act in which Section
110(1) is located.
21. While this judgment is being dictated, the counsel for the petitioner
has also relied on Radhakrishnan Vs. State of Kerala 2002 SCC Online Ker
120 where the Division Bench of the High Court of Kerala in exercise of its
power under Article 226 of the Constitution of India directed that all stage
carriage permits and heavy transport vehicle permits should contain a
W.P.(C) Nos.3626/2011 & 5691/2012 Page 10 of 15
stipulation as to installation of a suitable speed governor to ensure that the
vehicle is not driven at a speed in excess of what is notified in respect
thereof.
22. In the present case the Government has given cogent reasons in the
additional affidavit for arriving at a decision that mandatory fitment of
„Auto-Dipper‟ is not in the interest of general public. The same is a policy
decision which is in the domain of the executive and the powers of judicial
review thereof are to a very limited extent.
23. Not only so, in the present case the direction which the petitioner is
effectively seeking is a mandate to the Central Government to, as
subordinate legislature, make subordinate legislation.
24. The question is not merely of interpretation of the language of Section
110 as was the case in Dilip K. Basu supra. In my opinion, no mandate can
be given for making of any law including subordinate legislation. Supreme
Court in Mallikarjuna Rao Vs. State of Andhra Pradesh (1990) 2 SCC 707
and V.K. Sood Vs. Secretary, Civil Aviation 1993 Supp. (3) SCC 9 held that
a writ Court has no power to require the executive to exercise its law making
power. The Court observed that it is neither legal nor proper for the High
Court to issue direction or advisory sermons to the executive in respect of
W.P.(C) Nos.3626/2011 & 5691/2012 Page 11 of 15
the sphere which is exclusively within the domain of the executive under the
constitution. With reference to the power under Article 309 of the
Constitution of India to frame rules regulating the recruitment and
conditions of service, it was held that it is a legislative power and the Court
cannot usurp the functions assigned to the executive and cannot even
indirectly require the executive to exercise its law making power in any way.
It was held that the Court cannot assume to itself a supervisory role over the
rule making power of the executive. Mention may also be made of M/s.
Narinder Chand Hem Raj Vs. Lt. Governor, Administrator, Union
Territory, Himachal Pradesh (1971) 2 SCC 747 holding that legislative
power can be exercised only by the legislature or its delegate and by none
else. A slightly different note though was struck in Delhi Jal Board Vs.
National Campaign for Dignity and Rights of Sewerage and Allied
Workers (2011) 8 SCC 568 where it was observed that in exceptional
circumstances where there is inaction by the executive, the judiciary must
step in to provide a solution till such time the legislature or its delegate
performs its role, by enacting a proper legislation to cover the field.
However subsequently in V.K. Naswa Vs. Home Secretary, Union of India
(2012) 2 SCC 542, it has been held that the role of the Court remains a
W.P.(C) Nos.3626/2011 & 5691/2012 Page 12 of 15
limited one and the Court can neither legislate nor has any competence to
issue directions to the legislature or its delegate to enact the law. The Full
Bench of this Court in R.K. Singh Vs. Union of India 88 (2000) DLT 2005
has held that just like writ of mandamus cannot be issued to the legislature to
enact a legislation, the same is true as regards the executive, when it
exercises the power to make rules which are in the nature of subordinate
legislation. It was held that when executive authority exercises legislative
power by way of subordinate legislation, such executive authority cannot be
asked to enact a law which he has been empowered to do with delegated
legislative authority. Reliance was placed on A.K. Roy Vs. Union of India
(1982) 1 SCC 271 and Narinder Chand Hem Raj supra holding that a writ
of mandamus will not compel a person to complete legislative function in a
particular manner.
25. Not only so, it is also not as if there is any inaction in the matter on the
part of the Central Government. Though the Central Government in 1993
and 1998 introduced the provisions for mandatory fitment of „Auto-Dipper‟
but did not implement the said law. The petitioner also did not seek any
direction in this regard as indeed could not have been sought. Mention in this
regard may also be made of the judgment in Common Cause Vs. Union of
W.P.(C) Nos.3626/2011 & 5691/2012 Page 13 of 15
India (2003) 8 SCC 250 holding that no direction to the Government to
bring a law into force even can be given. Not only so, the petitioner did not
challenge the amendment of the year 2001 doing away with the provision in
the Rules for mandatory fitment of „Auto-Dipper‟ in the motor vehicles. The
petitioner, without challenging the amendment of the year 2001 as well as
the amendment of the year 2014 supra cannot be entitled to the reliefs which
have been claimed. No such challenge has been made in the present petitions
also which are being pursued before this Bench and which challenge can be
made only before the Division Bench as per the Roster of this Court.
26. On these grounds alone the petitions are not maintainable.
27. In this view of the matter the need to go into the contentions of the
counsel for the petitioner of non-application of mind in doing away with the
provision of mandatory fitment of auto-dipper does not arise.
28. The counsel for the petitioner at this stage contends that for the said
reasoning, only the second petition being W.P.(C) No.5691/2012 would be
not maintainable but W.P.(C) No.3626/2011 would still be maintainable.
The counsel for the petitioner states that the petitioner therein is aggrieved
from the demand of the BIS of cost from the petitioner for establishing the
W.P.(C) Nos.3626/2011 & 5691/2012 Page 14 of 15
BIS standards of auto-dipper. He states that the said aspect is admitted in the
counter affidavit.
29. The petitioner has however in W.P.(C) No.3626/2011 not challenged
the said demand.
30. There is no merit in the petitions. The same indeed are found to be
misconceived and are dismissed. However, I refrain from imposing any
costs.
RAJIV SAHAI ENDLAW, J.
JANUARY 29, 2016 „pp/gsr‟..
W.P.(C) Nos.3626/2011 & 5691/2012 Page 15 of 15