Balaji Automobile vs The State Of Rajasthan And Ors on 26 March, 2019

[Cites 11, Cited by 1]

Rajasthan High Court - Jodhpur

Balaji Automobile vs The State Of Rajasthan And Ors on 26 March, 2019

1. By way of this writ petition, the petitioner has questioned legality of public notice dated 7.2.18 issued by the Regional Transport Authority, Bikaner whereby while notifying the list of 15 years old diesel operated auto-rickshaws, the permit holders thereof are informed to replace their vehicles by auto-rickshaws having LPG/CNG engine within a period of 15 days. The petitioner has also questioned the legality of notification dated 15.12.16 issued by the Department of Transport, Government of Rajasthan, in exercise of the power conferred under sub-section (3) (a) of (Downloaded on 30/06/2019 at 04:45:30 AM) (2 of 12) [CW-3080/2018] Section 74 of the Motor Vehicles Act, 1988 (for short "the Act"), the number of contract carriage permits for operating auto- rickshaw/auto tonga has been restricted to 6000 and it is directed that the new permits shall be issued only in respect of the vehicles operated by LPG/CNG fuel and further the existing three wheeler vehicles shall only be permitted to be replaced by LPG/CNG operated vehicles.

2. The petitioner, a proprietorship concern, engaged in sale of commercial vehicles is an authorised dealer of M/s. PIAGGIO Vehicles Pvt.Ltd. (PVPL) which is one of the leading three wheeler commercial vehicles manufacturer in India. As per the averments made in the petition, presently, PVPL manufactures various three and four wheelers models with the technology BS IV Engine operated by use of fuel diesel, petrol and gas.

3. Precisely, the case set out by the petitioner is that as per order dated 29.3.17 passed by the Apex Court in M.C.Mehta vs. Union of India, AIR 2017 SC 2430, on and from 1.4.17 such vehicles that are not Bharat Stage-IV (BS-IV) compliant shall not be sold in India by any manufacturer or dealer and accordingly, all the vehicle registering authorities under the Act are prohibited from registering such vehicle on and from 1.4.17 that do not meet BS-IV emission standards, except on proof that such a vehicle has already been sold on or before 31.3.17. According to the petitioner, the action of the respondent authorities in issuing impugned notification prohibiting the registration of the vehicles and grant of permit for diesel auto-rickshaw completely even if it has compatibility of BS-IV engine is ex facie illegal and arbitrary being contrary to the specific directions issued by the Apex Court as aforesaid. It is submitted that the State Government and its (Downloaded on 30/06/2019 at 04:45:30 AM) (3 of 12) [CW-3080/2018] agencies are permitting the diesel auto-rickshaw in the rural area or the places where the facilities to refill LPG/CNG is not available and thus, the impugned notification issued bears no nexus with the objects sought to be achieved inasmuch as, even in the city areas of State of Rajasthan, the infrastructure for LPG/CNG has not been made available.

4. A reply to the writ petition has been filed on behalf of the respondents taking the stand that under clause (a) of sub-section (3) of Section 74 of the Act, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, the State Government may by notification in the Official Gazette direct State Transport Authority and Regional Transport Authority to limit the number of contract carriages generally or of any specified type as may be fixed and specified in the notification, operating on the city routes in towns with a population of not less than 5 lacs. It is submitted that vide notification dated 13.8.03 issued by the Department of Road Transport and National Highways, in exercise of the power conferred under sub-section (3) of Section 74 of the Act, the Government of Rajasthan has been directed to issue notification in the Official Gazette directing State Transport Authority and the Regional Transport Authority to limit the number of stage carriage or contract carriage vehicles inter alia in the city of Bikaner and accordingly, in the first instance vide notification dated 29.10.05 published in the Official Gazette dated 31.10.05 the State Government directed Regional Transport Authority, Bikaner to restrict the number of three wheelers auto-rickshaw/auto tonga vehicles to be operated as contract carriage to 4000 which was later increased to 5000 and now by way of impugned notification it (Downloaded on 30/06/2019 at 04:45:30 AM) (4 of 12) [CW-3080/2018] stands further increased to 6000. It is submitted that the action of the respondents in restricting the number of auto-rickshaw/auto tonga to be operated in the Bikaner city which has population more than 5 lacs is in conformity with the provisions of sub- section (3)(a) of Section 74 of the Act and the notification issued by the Government of India and the State Government thereunder and thus, the writ petition deserves to be dismissed.

5. Learned counsel appearing for the petitioner contended that the action of the respondent authorities in not permitting the diesel auto-rickshaws which comply with BS-IV standards is absolutely illegal, arbitrary and runs contrary to the directions given by the Supreme Court in M.C.Mehta's case. Learned counsel submitted that the diesel based auto-rickshaws having BS-IV emission standard is comparable to the low pollution standards of an LPG or CNG auto-rickshaw and thus, banning of diesel auto- rickshaws in the city of Bikaner is absolutely unjustified. It is submitted that the action of the respondents in permitting the numerous cars having diesel engine with BS-IV compatibility and denying the similar treatment in respect of BS-IV standards diesel auto-rickshaws in the city of Bikaner is ex facie discriminatory. Learned counsel submitted that in M.C.Mehta's case, the Supreme Court has directed the Central Government and the State Government not to register any vehicle which is not BS-IV standards but no directions have been issued to ban the registration of BS-IV compatible diesel auto-rickshaw and thus, viewed from any angle, the action of the respondents in prohibiting the operation of such auto-rickshaws in the city of Bikaner in perfunctory manner falls foul of Article 14 of the Constitution of India.

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6. On the other hand, the counsel appearing for the State while reiterating the stand taken in reply to the writ petition, submitted that the action of the respondents in restricting the number of auto-rickshaw/auto tonga to be operated in the Bikaner city which has population more than 5 lacs is in conformity with the provisions of sub-section (3)(a) of Section 74 of the Act and the notification issued by the Government of India and the State Government thereunder and thus, the writ petition deserves to be dismissed. Learned counsel submitted that in a recent decision in the matter of 'M.C.Mehta vs. Union of India & Ors.', 2019(1) WLC 1, the Supreme Court has issued categorical directions that no motor vehicle conforming to the emission standard BS-IV shall be sold or registered in the entire country w.e.f. 1.4.2020 and thus, the standard laid down in M.C. Mehta's case regarding operation of BS-IV compliant vehicles does not survive.

7. Mr.J.L.Purohit, Senior Advocate appearing on behalf of applicant Indian National Auto Driver Union (INTUC), which has preferred an application for impleadment as party respondent in the matter has supported the notification dated 15.12.16 issued by the State Government.

8. I have considered the rival submissions and perused the material on record.

9. Sub-section (1) of Section 59 of the Act empowers the Central Government that it may, having regard to the public safety, convenience, and objects of the Act, by notification in Official Gazette specify the life of a motor vehicle reckoned from the date of its manufacture, after expiry of which the motor vehicle shall not be deemed to comply with the requirement of the Act and the Rules made thereunder. As per proviso to Section (Downloaded on 30/06/2019 at 04:45:30 AM) (6 of 12) [CW-3080/2018] 59(1), the Central Government may specify different ages for different classes or different types of motor vehicles.

10. As per clause (a) of sub-section (3) of Section 71, the State Government shall, if so directed by the Central Government, having regard to number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct the State Transport Authority or Regional Transport Authority to limit the number of stage carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than 5 lacs.

11. Similarly, as per clause (a) of sub-section (3) of Section 74 of the Act, the State Government shall, if so directed by the Central Government, having regard to number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct the State Transport Authority or Regional Transport Authority to limit the number of contract carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than 5 lacs.

12. Indisputably, the notification dated 29.10.05 issued by the State Government directing the Regional Transport Authority, Bikaner to restrict the number of permits for three wheeler auto- rickshaw/auto tonga to be operated in the city of Bikaner as contract carriage to 4000 was preceded by notification dated 13.8.03 issued by the Department of Road Transport and National Highways in exercise of the power conferred under sub-section (3) of Section 74 of the Act, whereby the Government of Rajasthan was directed to issue notification in the Official Gazette to limit the number of stage carriages or contract carriages of generally or (Downloaded on 30/06/2019 at 04:45:30 AM) (7 of 12) [CW-3080/2018] specified type inter alia in the city of Bikaner. Admittedly, the number of three wheeler auto-rickshaws/auto tonga to be operated as contract carriage in the city of Bikaner was later increased to 5000 vide notification dated 19.9.11 and now by way of impugned notification it stands increased to 6000.

13. It is pertinent to note that while challenging the notification dated 15.12.16, the petitioner has not laid challenge to the notification dated 13.8.03 issued by the Department of Road Transport and National Highways in exercise of the power conferred under sub-section (3) of Section 74 of the Act directing the State Government to limit the number of stage carriages or contract carriages vehicles to be operated in the city of Bikaner. That apart, the original notification dated 29.10.05 issued by the State Government pursuant to the notification dated 13.8.03 issued by the Central Government, restricting the number of three wheeler auto-rickshaw/auto tonga vehicles to be operated in the city of Bikaner as contract carriage to 4000, is also not impugned in the present writ petition.

14. As a matter of fact, the challenge in the petition is not to the action of the respondents in restricting the number of auto- rickshaw and auto tonga to be operated as contract carriage to a number specified rather, the petitioner is aggrieved by the action of the State Government in directing that new permits in respect of the said vehicles to the extent of the number specified shall be issued only in respect of LPG/CNG fuel operated vehicles and such existing vehicles shall also be permitted to be replaced only by LPG/CNG fuel vehicles.

15. It is noticed that the condition with regard to the grant of new contract carriage permits only in respect of LPG/CNG three (Downloaded on 30/06/2019 at 04:45:30 AM) (8 of 12) [CW-3080/2018] wheelers and a replacement of the existing vehicles by LPG/CNG fuels vehicle was imposed in the first instance vide notification dated 19.9.11 issued by the State Government when the number of contract carriage vehicles in the city of Bikaner was increased from 4000 to 5000 and therefore, the same has been reiterated in the impugned notification dated 15.12.16 while increasing the number of contract carriage vehicles from 5000 to 6000.

16. A bare perusal of the sub-section (3)(a) of Section 74 of the Act as noticed above, empowers the Central Government to direct the State Government, having regard to number of vehicles, road conditions and other relevant matters, to limit the number of contract carriage vehicles generally or of any specified type, as may be fixed and specified in the notification, operating on city routes, in towns with the population of not less than 5 lacs. Accordingly, vide notification dated 13.8.03, the Central Government directed the State Government to restrict number of stage carriage or contract carriage vehicles in the city of Bikaner and pursuant thereto, in the first instance vide notification dated 29.10.05, the State Government restricted the number of permits for operating contract carriage vehicles in the city of Bikaner to 4000 which was later increased vide notifications dated 19.9.11 and 15.12.16 to 5000 and 6000 respectively. But then, while issuing said notifications, the additional restriction was imposed om terms that new contract carriage permits shall be granted only in respect of LPG/CNG operated vehicles and the replacement of existing diesel operated three wheelers shall also be permitted only by LPG/ CNG fuel operating vehicles, which is not within the scope of provisions of Section 74 (3) (a) of the Act or the (Downloaded on 30/06/2019 at 04:45:30 AM) (9 of 12) [CW-3080/2018] notification issued by the Central Government in exercise of the power conferred under the said provision.

17. The matter with regard to emission of smoke, vapour etc. from the motor vehicles is regulated by Rule 115 of the Central Motor Vehicles Rules, 1989 ("the Rules"). The issue with regard to the sale and registration of the vehicles not meeting the emission standards prescribed was dealt with by the Supreme Court in the matter of M.C.Mehta Vs. Union of India and Ors. (AIR 2017 SC 2430), wherein after due consideration, the Supreme Court issued the directions as under :

"Accordingly, for detailed reasons that will follow, we direct that:

(a) On and from 1st April, 2017 such vehicles that are not BS-IV compliant shall not be sold in India by any manufacturer or dealer, that is to say that such vehicles whether two wheeler, three wheeler, four wheeler or commercial vehicles will not be sold in India by any manufacturer or dealer on and from 1st April, 2017.

(b) All the vehicle registering authorities under the Motor Vehicles Act, 1988 are prohibited for registering such vehicles on and from 1st April, 2017 that do not meet BS-IV emission standards, except on proof that such a vehicle has already been sold on or before 31 st March, 2017."

18. As a matter of fact, two or three wheelers vehicles were made subject to BS-III norms with effect from 1.4.10 by insertion of sub-rule (16) in Rule 115 of the Rules. Thereafter, sub-rule (17) was inserted in Rule 115 on 12.6.15, whereby in respect of new models of three wheelers, BS-IV standard was made applicable with effect from 1.4.16 and consequently, only those three wheeler vehicles which are BS-IV compliant are permitted to be sold after 1.4.17.

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19. Thereafter, vide notification dated 20.2.18, the Central Government amended the sub-rule (21) of Rule 115 of the Rules, the amended Rule reads as under:

"115. Emission of smoke, vapour, etc., from motor vehicles.-(1) Every motor vehicle other than motor cycles of engine capacity not exceeding 70 cc. manufactured prior to the first day of March 1990, shall be maintained in such condition and shall be so driven so as to comply with the standards prescribed in these rules.

.....xxxx........xxxxx.........

21. New motor vehicles conforming to Emission Standard Bharat Stage-IV, manufactured before the 1st April, 2020 shall not be registered after the 30th June, 2020.

Provided that the new motor vehicles of categories M and N conforming to Emission Standard Bharat Stage-IV, manufactured before the 1st April, 2020 and sold in the form of drive away chassis, shall not be registered after the 30th September, 2020."

20. Recently, in M.C. Mehta's case (supra) [2019 (1) WLC Civil 1], the Supreme Court while holding sub-rule (21) of Rule 115 of the Rules as very vague and violative of Article 21 of the Constitution of India while reading down the said provision, observed:-

"19. In view of the fact that these proceedings have been pending in court of a long time and also in view of the fact that it is because of orders of this Court that BS-IV and now BSVI norms have been introduced from the dates which were not even thought of by the Government, we feel that we have to take suo moto notice of the Rules. At the outset, we may notice that sub-rule 21 of Rule 115 is very vague. It does not talk of sale of vehicles. It only mentions registration of vehicles and permits registration of vehicles conforming to BS-IV norms up to 30.06.2020 and in case of categories M & N, up to 30.09.2020. This rule, in our view, is violative of Article 21 of the Constitution in as much as it extends time for registration of vehicles beyond 31.03.2020 and must be accordingly read down. Any extension of time in introducing the new norms which is not absolutely necessary adversely impacts the health of the citizens and is, therefore, violative of Article 21 of the Constitution of India. This Rule goes against the spirit of all the orders passed earlier by this (Downloaded on 30/06/2019 at 04:45:30 AM) (11 of 12) [CW-3080/2018] Court. In the month of March, 2017 we were dealing with a situation when BS-VI norms were to be made effective throughout the country with effect from 01.04.2020 and this Court had directed that non-BS-IV compliant vehicles shall not be registered on or after 01.04.2017. The situation in the present case is totally different. 31.03.2020 is almost 1½ years away. There is sufficient time for the manufacture to change over to the new system and, therefore, we see no reason why they should be given a window of three or six months for sale of accumulated vehicles. Every vehicle sold after the cutoff date of 01.04.2020 is bound to cause more pollution and therefore, the manufacturers, in our considered view, cannot be permitted to sell any non BSVI compliant vehicle on or after 01.04.2020. On the one hand, the Government has been proactive in spending huge amounts of money to move to the BSVI technology, but on the other hand, the automobile industry is coming up with a variety of untenable excuses just to delay the introduction of BSVI compliant vehicles by a few months. We, in our judgment dated 13.04.2017, had clearly held "when the health of millions of our countryman is involved, notification relating to commercial activities ought not to be interpreted in a literal manner". We have to give a purposive interpretation to notifications specially those dealing with public health issues and even more so, when health not only of the citizens at present but also the citizens in the future is involved. There is more than sufficient time for the manufacturers to manufacture BSVI compliant vehicles. They already have the technology to do so. The automobile industry must show the will, responsibility and urgency in this regard.

20. The Government has developed a policy of phasing out polluting vehicles and discouraging the manufacturers of polluting vehicles. This has been done in a gradual manner. Europe introduced EuroIV fuel in the year 2009 and EuroVI standards in 2015. We are already many years behind them. We cannot afford to fall back further even by a single day. The need of the hour is to move to a cleaner fuel as early as possible.

21. Therefore, in exercise of the power vested in this Court under Article 142 of the Constitution, we read down sub-rule 21 of Rule 115 and direct that sub-rule 21 of Rule 115 shall be interpreted and understood to read that no motor vehicle conforming to the emission standard Bharat StageIV shall be sold or registered in the entire country with effect from 01.04.2020."

21. In view of the directions issued by the Supreme Court in M.C.Mehta's cases (supra), the registration and substitution of the vehicles to be operated in the country must conform to the norms (Downloaded on 30/06/2019 at 04:45:30 AM) (12 of 12) [CW-3080/2018] laid down by the Central Government read down by the Supreme Court as aforesaid.

22. In view of the discussion above, the vehicles which do not conform to the norms laid down by the Central Government under Rule 115 of the Rules, as clarified/read down by the Supreme Court in M.C.Mehta's case (supra), cannot be permitted to be registered or substituted after the cutoff dates specified as aforesaid.

23. Accordingly, while upholding the notifications issued by the State Government restricting the number of three wheelers auto- rickshaw/auto tonga in the city of Bikaner by way of notifications issued from time to time, it is directed that the registration and substitution of the existing vehicles shall be governed by the norms of standard laid down by the Central Government under Rule 115 of the Rules, as read down by the Hon'ble Supreme Court in M.C.Mehta's case (supra).

24. The writ petition stands disposed of accordingly. No order as to costs.

(SANGEET LODHA),J 16-Aditya/-

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Rajasthan High Court - Jodhpur