Madras High Court
S. Suresh Kumar vs The Union Of India (Uoi) Rep. By Its ... on 3 February, 2003
ORDER
1. In W.P. No.9284 of 1999, the petitioner, S.Suresh Kumar, has prayed for the issue of a writ of mandamus forbearing the respondents from interfering and preventing the petitioner from using non-subsidised Liquefied Petroleum Gas in Maruti 800 C.C. Car bearing Registration No. TN-09-A 5010 or seizing the vehicle, removing the cylinder and LPG kits, suspending or cancelling the certificate of registration of the aforesaid vehicle.
2. In W.P. No.10882 of 1999, the petitioner, M/s.Victory Group, has prayed for the issue of a writ of certiorarified mandamus calling for the records of the second respondent herein in Lr. No.E.No.31109/H2/99 dated 1.5.99, quash the same and forbear the respondents from in any way booking, seizing or taking action against any vehicles fitted with LPG conversion kit supplied by the petitioner and pass such further or other orders as this Hon'ble Court may deem fit.
3. In W.P. No.11680 of 1999, the petitioner Mr.A.Chandrasekaran, has prayed for the issue of a writ of certiorarified mandamus calling for the records of the second respondent herein in Lr. No.E.No.31109/H2/99 dated 1.5.99, quash the same and forbear the respondents from in any way booking, seizing or taking action against any vehicles fitted with LPG conversion kit supplied by the petitioner and pass such further or other orders as this Hon'ble Court may deem fit.
4. In W.P. No.11731 of 1999, the petitioner S.S.Nalinichander, has prayed for the issue of a writ of certiorarified mandamus calling for the records of the second respondent herein in Lr. No.E.No.31109/M2/99 dated 1.5.99, quash the same and forbear the respondents from in any way booking, seizing or taking action against any vehicles fitted with LPG conversion kit supplied by the petitioner.
5. The petitioner in W.P. No.9284 of 1999, who claims to be the owner of Maruthi 800 CC petrol car bearing Registration No. TN-09-A-5010, after purchase modified the petrol car to run by using Liquefied Petroleum Gas (LPG for brevity) as well as petrol. It is common in European countries to use LPG as fuel for cars. The petitioner has detailed the conversion process. According to the petitioner, there is no necessity to make any modification in the engine as only regulators of LPG are attached to the vehicle. The Union of India has permitted import of gas conversion kits from Italy as well as USA. Further, by use of LPG, there is no danger of Benzene and other carcinogenic aromatics in the cars. By intensive research in USA, it has been found that in alternative fuel technology LPG alone is being recommended. In various foreign countries natural gas is being used in cars and there is reduction in pollution level.
6. The first respondent issued a green signal for conversion. Very many vehicles have been converted and they are using LPG cylinder across the country. The Union Territory of Delhi has also permitted plying of their buses with LPG as fuel. On 6.5.99 one of the Fiat cars fitted with LPG gas met with an accident near Coimbatore North flyover due to brake failure and, thereafter, the 2nd respondent in a press release entertained complaints regarding misuse of LPG by car owners. The 3rd respondent instructed his subordinate to inspect the care and seize those cars fitted with LPG. Accordingly, the police have seized many cars fitted with LPG kits and also warned the owners. The car owners were threatened with seizure of the vehicle. Representations made to the respondent did not yield any result and they proceeded in taking action.
7. The petitioner's vehicle was intercepted on 19.5.99 by a police constable and on noticing LPG gas, the petitioner was warned and he was directed to remove the same immediately. The respondents are opposing the user of LPG gas on the ground that it is in contravention of Section 52 of The Motor Vehicles Act, 1988.
8. The petitioner contends that user of LPG as fuel will not offend and it is not violative of Section 52 of The Motor Vehicles Act and there could be no penal action under Section 53 of the said Act or to suspend the registration certificate or cancellation of registration under Section 54 of the Act. It is contended that there is no specification under the Motor Vehicles Act or the rules made therein as to the nature of fuel to be used in the vehicles and, therefore, there is no illegality in the petitioner using LPG in his car. Under Section 52 of The Motor Vehicles Act, the owner of the car has to obtain permission from the authority for any alteration, but it will not cover the alteration by used of LPG, which is exempted. It is contended that the 2nd respondent is not competent to initiate proceedings against the owners of the motor vehicles. The action of the respondent is without jurisdiction, illegal and the interpretation placed by them is also a misconception. Hence, the present writ petition, besides the petitioner has sought for an order of injunction forbearing the respondents from interfering with the user of LPG as a fuel in the vehicles.
9. W.P. No.10882 of 1999 has been filed by M/s.Victory Group, who is an authorised dealer doing business of LPG fuel conversion kits from reputed international manufacturer, namely, Lovato Auto Gas. The petitioner has set out the details of conversion and the benefits of conversion as well as safety measures provided in the vehicles. The same contentions are advanced in this writ petition as well. Many benefits accrue by user of LPG as fuel as against petroleum products like petrol or diesel. The same contention as in W.P. No.9284 of 1999 is advanced in this writ petition.
10. The petitioner in W.P. No.11680 of 1999, the petitioner Chandrasekaran, who claims to be a dealer doing business of LPG fuel conversion kits from reputed international manufacturer M/s.Lovato Auto Gas and he has also put forward identical plea in the affidavit filed in support of the writ petition.
11. W.P. No.11731 of 1999 has been filed by another dealer, who claims that he is a dealer, who is dealing in the business of conversion of LPG fuel and identical conversions have been advanced even in this writ petition as well.
12. In W.P. No.9284 of 1999, a counter has been filed by the 2nd respondent. The 2nd respondent, while denying the averments referred to the accident that occurred on 6.5.99 involving a Fiat car fitted with LPG gas. It is stated that number of vehicles have been fitted with LPG without obtaining prior permission from the registering authority in terms of Section 52 of The Motor Vehicles Act. In terms of Section 53(1)(a) of The Motor Vehicles Act, 1988, the registration of Motor Vehicles, which is in such a condition that its use in a public place would constitute a danger to the public or that it fails to comply with the requirements of The Motor Vehicles Act or the rules framed thereunder is liable to be suspended until the defects are rectified. Section 54 provides for cancellation of registration of the vehicles and Section 53 provides for suspension. Rule 101 of The Tamil Nadu Motor Vehicle rules, 1989, requires that no alteration in the existing vehicle proposed by the vehicle owner shall be got approved by the registering authority. It is contended that the Motor Vehicles Manufactured under the design, approval granted by the Government of India should not be altered in any manner without prior approval of the registering authority. Altering the carburettor of an engine also to use LPG is in violation of Section 52. For such violation suspension/cancellation of registration could be resorted to by invoking Sections 53 and 54 of The Motor Vehicles Act, 1988. Modification has been admitted by the petitioner without prior permission of the registering authority and, therefore, it is violative of Section 53 of The Motor Vehicles Act.
13. Section 52 of The Motor Vehicles Act prohibits the use of LPG as fuel in petrol cars by making some alteration. Rule 101 of the Tamil Nadu Motor Vehicle Rules, 1989, requires that alteration in the existing vehicles proposed by the vehicle owner shall be got approved by the registering authority. No motor vehicle manufacturer has designed and was granted design approval by the Government of India and, therefore, the petitioner is not entitled to use LPG as an alternative fuel. It is contended that the District Collector, who is the Regional Transport Authority is the competent authority and he is also the District administrator and he and his subordinates could very well initiate action. The petitioner having failed to get prior permission for the conversion, is not entitled to the relief of mandamus or certiorari as prayed for. The registration of the petitioners' vehicles was on the premise that the user of the vehicle would not constitute danger to the public. For contravention under Section 54, there could be a cancellation of registration of the vehicle. The various contentions advanced by the petitioners are devoid of merits and the respondents have prayed for dismissal of the writ petition.
14. In W.P. No.10882 of 1999, the first respondent has filed a counter after referring to the details of business carried on by the petitioner. The first respondent has stated that routine administrative instructions have been issued to draw the attention and fix the enforcement of the provisions of the Motor Vehicles Act. The material portion of the counter filed by the first respondent reads thus :-
"5. It is submitted that according to Section 52(1) of the Motor Vehicles Act, 1988, alteration of a vehicle to use LPG as a fuel required permission of the registering authority. Hence it is necessary to check if any registered vehicle has been converted to use LPG as a fuel and if so, whether permission of the registering authority has been obtained prior to such conversion. The circular in question was issued with this objective, which is perfectly in line with the duties of this department. Hence, the writ petition questioning the issue of such an administrative instruction deserves to be dismissed.
6. It is submitted that the orders of the Transport Commissioner are appelable to the STAT. Without exhausting the opportunity for appeal, the petitioner has rushed to the High Court invoking writ jurisdiction and on this ground the writ petition deserves to be dismissed.
7. Regarding the averments made in paragraph 8 of the affidavit, it is submitted that according to Section 52(1) of the Motor Vehicle Act, 1988, conversion of a vehicle to use a different type of fuel or source of energy including battery, compressed natural gas, solar power or any other fuel of source of energy shall be treated as an alteration. Any alteration made in the vehicles after the first registration requires permission of the registering authority. As such the conversion of the vehicle to use LPG as a fuel requires permission of the registering authority. It is necessary to check vehicle to know if any vehicle has been converted to use LPG as fuel and if so whether prior permission has been obtained."
15. Heard Mr.G.Ethirajulu and Mr. K.V.Subramanian, learned counsel appearing for the petitioner in the respective writ petitioners, Ms.D.Malarvizhi, learned counsel appearing for the respondent-State Government and Mr.V.Vaithiyalingam, learned Central Government Standing Counsel appearing for the respondent-Central Government. With the consent of counsel for either side, the writ petitions are taken up for final disposal.
16. The learned Central Government Standing Counsel made a statement that the Central Government is not opposing the user of LPG as an alternate fuel to the motor vehicles. The standing counsel also points that certain amendments have already been issued and it is not interfering with the user of LPG cylinder in cars.
17. While placing it on record the statement made by the standing counsel for the Central Government in open Court, we have to take up the points for consideration in these writ petitions. The following points arise for consideration in these writ petitions :-
"i) Whether the action taken against the conversion of petrol fuel to LPG by fixing conversion kits without prior permission of the registering authority is sustainable in law?
ii) Whether the conversion of the vehicles from petrol/diesel to LPG is permissible in law ?
iii) Whether the petitioner's are entitled to the relief as prayed for ?
iv) To what relief the petitioners are entitled to ?"
18. Before referring to the statutory provisions, it is essential to refer to the pronouncement of the Supreme Court. In M.C.MEHTA VS. UNION OF INDIA reported in ; M.C.MEHTA VS. UNION OF INDIA ; M.C.MEHTA VS. UNION OF INDIA ; M.C.MEHTA VS. UNION OF INDIA , various directions have been issued by the Apex Court to protect the health of the people of Delhi and directions have been issued to persuade the Governmental authorities to take such steps as would reduce air pollution. In this context, the Apex Court held thus :-
"3. The concern of this Court in passing various orders since 1986 has only been one, namely, to protect the health of the people of Delhi. It is only with this objective in mind that directions had been issued in an effort to persuade the governmental authorities to take such steps as would reduce the air pollution. It is as a result of intervention by this Court that the following measures were taken in controlling pollution to some extent:
(a) lowering of sulphur content in diesel, first to 0.50% and then to 0.05%;
(b) ensuring supply of only lead-free petrol;
(c) requiring the fitting of catalytic converters;
(d) directing the supply of pre-mix 2T oil for lubrication of engines of two-wheelers and three-wheelers;
(e) directing the phasing out of grossly polluting old vehicles;
(f) directing the lowering of the benzene content in petrol; and
(g) ensuring that new vehicles, petrol and diesel, meet Euro II standards by September 2000.
It was during the course of these proceedings that the Bhure Lal Committee was established under Section 3 of the Environment (Protection) Act, 1986.
4. The Environment Pollution (Prevention and Control) Authority is a statutory authority constituted under Section 3 of the Environment (Protection) Act, 1986, and its directions are final and binding on all persons and organizations concerned. This position has been reiterated by this Court in Sector 14 Residents' Welfare Assn. v. State of Delhi1. It is this authority which had directed the phasing out of non-CNG buses. It is the Bhure Lal Committee which had also recommended the conversion to CNG mode and issued directions that non-CNG buses should be phased out.
* * *
14. The plea of the Government that CNG is in short supply, and that it is unable to supply adequate quantity is incorrect, and this is clearly a deliberate attempt to frustrate the orders passed by this Court. Particulars filed in the Court show that as of today no CNG is being imported. The indigenous produce is far in excess of what is supplied to the transport sector. It is only a small fraction of CNG produced in India which is earmarked for non-industrial use. Overwhelming quantity is allocated to industries, including the power sector."
19. In the light of the said pronouncement referred to above, the emphasis being that natural gas should be used to reduce pollution as level of pollution by user of natural gas in motor vehicles is advantageous to humanity. In other words, pollution is contained or reduced to minimum level and user of LPG has been made compulsory by issue of directions to Delhi Transport Corporation buses. In the light of the above background, we have to consider the present action.
20. Section 52 of The Motor Vehicles Act provides for alteration in Motor Vehicles. The said Section came to be amended by Central Act 27 of 2000. Section 52(1) of The Motor Vehicles Act, 1988 provides that no owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate are no longer accurate unless he has given notice to the registering authority, within whose jurisdiction he resides or place of business where the vehicle is normally kept and he has obtained the approval of the registering authority to make such alteration. The 2nd proviso to Sub-Section (1) further provides that modification of engine or any part thereof of a vehicle for facilitating its operation by a different type of fuel or source of energy including battery, compressed natural gas, solar power or any other fuel or source of energy other than LPG shall be treated as an alteration, but that shall be subject to such conditions as may be prescribed. In other words, for the conversion of a vehicle suitable to use LPG is not an alteration, while conversion of vehicle for facilitating its operation by a different type of fuel or source of energy including battery, compressed natural gas, solar power or any other fuel shall be treated as alteration.
21. User of LPG as a fuel, the Legislature itself provided that it is not a conversion of the vehicle and, consequently, for such conversion no notice need be given to the registering authority nor approval of the registering authority requires to be secured.
22. Section 53 provides for suspension of registration of a vehicle if user of such vehicle is in such a condition that its use in a public place would constitute danger to the public or that it fails to comply with the requirement of the Act or the rules framed therein. When once in terms of second proviso to Section 52, the user of LPG is not an alteration, then the meaning of Section 52 that any alteration made in the vehicle for the user of LPG will not constitute a valid ground for suspension under Section 53. So also there could be no action under Sections 54 or 55 of the Act for cancellation of registration in case LPG is used as a fuel nor suspension of the certificate of registration could be ordered.
23. The learned counsel for the writ petitioners relied upon the pronouncement of the Karnataka High Court in support of their contention and also relied upon the circular issued by the Nationalized Insurance Companies. The Karnataka High Court in RAMASAMY VS. REGIONAL TRANSPORT OFFICER, BANGALORE (E) dated 25.11.1998 in W.P. No.25780 of 1998 allowed a writ petition declaring that the alteration prayed for by the writ petitioner therein in respect of his vehicle is being granted under Sub-Section (2) of Section 52 of The Motor Vehicles Act and for other consequential reliefs. The Karnataka High Court also referred to second proviso to Section 52(1)(b) and held that it is not necessary for a person to seek a permission under Section 52 to use LPG as an alternate fuel to gas link in the motor vehicle and, further, also granted a declaration that the petitioner therein is deemed to have secured the permission in terms of Section 52 of the Act.
24. The explanation appended to Section 52 runs thus :-
"for the purpose of this Section "alteration" means a change in the structure of a vehicle, which results in a change in its basic feature."
25. Therefore, on a consideration of Section 52 as it stood before the amendment by Central Act 27 of 2000, user of LPG as a fuel is not an alteration for which neither permission is required nor it requires to be carried out subject to such conditions as may be prescribed or with the prior permission of the authority as was in force before the amendment.
26. These writ petitions were filed at the time when the Central Act 27 of 2000 has not been enacted. The petitioners were aggrieved since a direction has been issued by the Transport Commissioner who directed that vehicles fitted with LPG should be booked for violation. This circular of the Transport Commissioner is contrary to the statutory provisions of The Motor Vehicles Act. In the light of the provisions as it stood prior to the coming into force of the Central Act 27 of 2000, such a circular runs counter to the statutory provisions insofar as directions have been issued to book the vehicles fitted with LPG cylinders. The contention advanced in this respect by the petitioners is well founded.
27. Though the learned counsel for the petitioner referred to certain parliamentary discussions and other literature to demonstrate that the user of LPG gas reduce the pollution and it is better by all standards, this Court need not go into this case in view of the Supreme Court directions in M.C.Mehta's case.
28. As of today, proviso to Section 52 has been modified by Central Act 27 of 2000. In terms of the amended provision, amended Section 52, no owner of a motor vehicle shall so alter the vehicle with the particulars contained in the certificate are at variance with those originally specified by the manufacturer. The emphasis being that there shall be no alteration even in fuel. The proviso, which has been introduced by Central Act 27 of 2000 reads thus :-
"Provided that where the owner of a motor vehicle makes modification of the engine, or any part thereof, of a vehicle for facilitating its operation by different type of fuel or source of energy including battery, compressed natural gas, solar power, liquid petroleum gas or any other fuel or source of energy, by fitment of a conversion kit, such modification shall be carried out subject to such conditions as may be prescribed :
Provided further that the Central Government may prescribe specifications, conditions for approval, retrofitment and other related matters for such conversion kits : Provided also that the Central Government may grant exemption for alteration of vehicles in a manner other than specified above, for any specific purpose."
29. In terms of proviso to Section 52, as introduced by the amended Act 27 of 2000, the owner of the motor vehicle makes a modification of the engine or any part thereof facilitating its operation by different type of fuel or source of energy including battery, compressed natural gas, solar power, LPG or any other fuel, or source of energy, by fitment of a conversion kit, such modification shall be carried out subject to such conditions as may be prescribed. The 2nd proviso enables the Central Government to prescribe specifications, conditions for approval, retrofitment and other related matters for such conversion kits.
30. Rule 115 of The Central Motor Vehicle Rules, 1989, prescribes the standards in respect of vehicles manufactured prior to 1.3.1990 in respect of mass emission. Mass emission standards for petrol driven vehicles have also been prescribed as well as diesel vehicles. Rule 115-A prescribes the rules relating to emission of smoke and vapour from agricultural tractors and construction equipment vehicles driven by diesel engines. Section 115-B is the rule relating to mass emission standards for compressed natural gas driven vehicles. Section 115-C prescribes mass emission standards for LPG driven vehicles. The said rule enables the manufacturers to fix LPG fitment on new petrol vehicles as well. Rule 115-C was inserted and it came into force on 24.5.2001.
31. Annexure VIII provides for checks for use of LPG fuel in natural combustion engines of power four wheeled vehicles, etc., and Indane Gas Cylinder Rules, 1981. Rule 115 of The Central Motor Vehicles Rules prescribes the standards of emission in respect of various fuels including LPG. Rule 115-C prescribes the mass emission standards for vehicles operating on LPG. A conjoint reading of Rule 115-C (2), (3), (4) and (5), would show that there could be a conversion of original equipment with LPG kit subject to the standards prescribed therein. Therefore, it is clear that on and after 24.5.2001, there could be motor vehicle, which has been hitherto using petrol to use LPG subject to fitment of LPG kit, provided the kit manufacturer or supplier obtains a certificate from the authorities prescribed or authorised in this behalf under Rule 126 as enumerated in Sub-rule (3) of Rule 115.
32. In the light of the said amendment of Section 52 read with Rule 115, what is required is that the petitioner has to comply with the said statutory provision and the rule and the respondents shall satisfy themselves in this respect. It is not as if the user of LPG is totally prohibited as has been viewed by the Transport Commissioner, who had issued a direction nor fuel conversion is prohibited. The very proviso to Section 52 will enable either the manufacturers of vehicle or owners of the vehicle, who subsequent to purchase seeks to convert by fitment of approved conversion kit and such modification shall be carried out subject to conditions as has been prescribed by the rules. The Central Government has already prescribed the standard and specifications, and conditions for approval, retrofitment and other related matters for such conversion kits.
33. In the circumstances, while quashing the impugned action or circular, this Court directs that there will be a direction in terms of Section 52 proviso and connected Central Rules, the owner of the motor vehicles may make modifications of the engine or any part thereof for facilitating its operation by different type of fuel or source of energy including LPG by fitment of approved conversion kits and subject to the condition that such conversion kits shall be as per the standard and specifications provided for in the Central rules. On such conversion and within 14 days of conversion, the vehicle owner shall report the alteration to the registering authority, besides forwarding the certificate of registration to that authority together with prescribed fees in order that alteration particulars be entered in the vehicle as well as in Registration certificate issued in respect of each vehicle. The Registering Authority has to just satisfy as to whether the approved conversion kit has been installed by authorised dealer and release the Registration certificate forthwith.
34. These writ petitions are ordered with the above directions. The parties shall bear their respective costs. Consequently, connected miscellaneous petitions are closed.