M/S. Shrimankar Gas Car Services ... vs The State Of Delhi And Others
2001 Latest Caselaw 1029 Del

ORDER

Mukul Mudgal, J.

1. Rule : With the consent of the parties this petition is being heard and disposed of at the admission stage itself in view of the urgency of the subject matter.

2. This writ petition contends as under:-

(a) The petitioner-Company is a retrofitter of CNG kits on autorikshawas and pursuant to Hon'ble Supreme Court's orders in M.C. Mehta's case for improving the ambience of Delhi's air by directing the conversion of Autorikshaws to Compressed Natural Gas mode (hereinafter referred to as the 'CNG mode'), received several orders for conversion of petrol driven autorikshaws to CNG mode. The petitioner holds a certificate valid until 2005 issued upon testing a 1998 model autorikshaw retrofitted with petitioner's kit by VRDE Ahmednagar, one of the testing agencies specified in Rule 126 of the Motor Vehicles Rules (hereinafter referred to as the 'the Rules'). The petitioner's kit was also approved by the respondent No. 1, Transport Deptt, Delhi Administration, who accordingly issued a Circular on 27.11.2000 to this effect to all transport authorities including the registration authority.

(b) The relevant portion of the Certificate dated 20th of November, 2000, issued in favor of the petitioner by the Transport Department of Delhi Administration, i.e., respondent No. 1 reads as under:

"1. Based on the study of documents and trials conducted on CNG KIT bearing model No. "SHRIMANKAR" - BS-E/AUTO-02 manufactured by M/s SHRIMANKAR GAS CAR SERVICES PVT. LTD, MUMBAI and retrofitted on BAJAJ THREE WHEELER REAR ENGINE AUtorICKSHAW bearing Regn. No. MH-03-Q 416 manufactured in April 1998, the use of this kit is approved for fitment of BAJAJ THREE WHEELER REAR ENGINE AUTO RICKSHAW as per Ministry of Surface Transport notification No. GSR 99(E) dated 09-02-2000.

2. This certificate is valid up to 19-11-2005 i.e. 5 years from the date of issue of this certificate. The certificate shall be got re-validated for the purpose of COP before 19-11-2005."

(c) Pursuant to the firm bookings and advances received by the petitioner, it had placed corresponding orders on its counterpart manufacturer in Italy incurring an investment of about Rs. 3 crores.

3. This writ petition challenges the Letter dated 29.6.2001 passed by the Transport Deptt. of Delhi Administration, i.e., respondent No. 2 by which the petitioner was forbidden from retrofitting any vehicle manufactured after 31.5.99 on an interpretation of Rule 115B of Motor Vehicles Rules which interpretation was occasioned and indeed guided by the correspondence between respondent Nos. 1 & 2 and respondent No. 3-union of India. Apart from challenging the legality of the aforesaid Letter dated 29.6.2001, which according to the petitioner, is based on a misreading and misunderstanding of Rule 115 B, the petitioner has also challenged the bona fides occasioning the said Letter which plea is based on Para 3 of the impugned Letter dated 29.6.2001 which reads as under:

"03. You are further directed to transfer the bookings done by you in respect of auto-rickshaws manufactured after 31.5.99 to M/s Benzo Triana, 15, Rashid Market, Street No. 2, Delhi-110 051."

That the over-enthusiasm evident in the said para to benefits M/s Benzo Triana indicates the real motive occasioning the said Letter.

4. It is further submitted that what is required to be considered in law is only the requirement of Rule 115 B of the Motor Vehicles Act which reads as under :

"115B. Mass Emission Standards for Compressed Natural Gas Driven Vehicles.

Mass emission standards for vehicles when operating on Compressed Natural Gas shall replace Hydrocarbon by Non Methane Hydrocarbon. Non Methane Hydrocarbon may be estimated by an analyzer or by the following formula, namely:-

NHMC = HC x (1-K/100)

Where HC = total hydrocarbons measured

K= % Methane content in natural gas fuel

Methane content in Compressed Natural Gas to be used as reference fuel shall not be less than 70%.

(i) For gasoline vehicles with OE fitment: Prevalent type approval norms shall be applicable with "Non Methane Hydrocarbon" in place of total Hydrocarbon.

(ii) For in-use gasoline vehicles: The in-use vehicles fitted with CNG kits shall meet the emission norms prescribed for gasoline vehicles as applicable to the prevailing norms corresponding to the year of manufacture of the vehicle. For purposes of CNG kit approval, kit supplier shall obtain the certificate from any of the test agencies authorized under rule 126 based on vehicles of engine capacity in the range of (a) up to 750 cc, (b) from 751 cc to 1300 cc, and (c) from 1301 cc and above, and such kits shall be permissible to be retrofitted on any vehicle falling in the respective engine capacity range. For purposes of COP for such a kit, kit supplier/manufacturer shall have the certificate of the kit renewed after every 5 years.

Provided that the approved kit shall not retrofitted on a vehicle of higher capacity engine that the engine for which it has been tested."

5. The petitioner has thus contended that the only restriction placed on the certificate valid for 5 years, issued in favor of the petitioner, is contained in the proviso, to the effect that the kit cannot be retrofitted on a vehicle of capacity higher than the engine for which it is tested. The petitioner has also advanced certain alternative submissions in Paras 2 & 3 of its written note as under:-

"Alternatively, the VRDE has clarified vide its letter dated 2.7.2001 (Ann.8) that in the test conducted on the Petitioner's CNG kit as per GOI Notification dated 9.2.2000 whereupon the Certificate dated 20.11.2000 was granted to the Petitioner, the testing vehicle was also 'found meeting the India-2000 Emission Norms', i.e., the norms which have come into force under GSR No. 493(E) dated 28.8.97.

Further, alternatively, even going by the Respondents' stand, it may be noted that even in Delhi, insofar as commercial vehicles, including three-wheelers are concerned, the date of enforcement of the new norms comprised in GSR No. 493(E) dated 28.8.97 continues to remain 1.4.2000 inasmuch as it is only in respect of 'non-commercial 4-wheelers' that GSR No. 339(E) dated 1.6.99 has enforced the norms w.e.f. 1.6.99. In other words the norms provided under GSR No. 163(E) dated 29.3.96 are the norms which remain effective for 3-wheelers in Delhi as late as up to 31.3.2000.

Thus, in any case, the Petitioner cannot be prevented from retrofitting 3-wheelers manufactured till 31.3.2000."

6. In reply, the respondents 1 & 2 have contended that the action of the respondents has been occasioned by the clarifications given by the Government of India by the Letter dated 12.4.2001 according to which in spite of a particular Company, i.e., M/s Nugas Technologies (Pvt.) Ltd. having a certificate issued by a designated Testing Agency under Rule 126 of the Central Motor Vehicles Rules, 1989, a certificate for conversion was said to be valid only in respect of buses manufactured between 1992 to 1996 and the Company was not competent to convert in-use diesel buses manufactured from April, 1996 onwards when the higher Mass Emission norms came into force. It is further contended that the clarifications given by the Govt. of India, Ministry of Surface Transport (hereinafter referred to as 'the MOST') are binding in nature for the respondents because it is the administrative ministry and the Central Motor Vehicles Rules have been framed by them. It is also contended that the MOST by letter dated 5.7.2001 interalia clarified "that the certificate issued by an authorised Testing Agency (under Rule 126 of the CMV Rules, 1989) is valid till validity of Mass Emission Norms corresponding to the year of manufacturing of the vehicle on which the Certificate was obtained from the Testing Agency." Reliance has also been placed on the Certificate issued to the petitioner-Company on 6th of June, 2001 which stated that the vehicle fitted by the CNG kit of the petitioner met India-2000 Emission Norms but a certificate of VRDE did not include the words "Mass Emission Standards for vehicles manufactured after 1st of June, 1999 in case of National Capital Region of Delhi as per Rule 115(10A) of the Central Motor Vehicles Rules, 1989". It was further submitted that the Department of Transport has also sought clarification from VRDE by a letter dated 18.4.2001 which was replied on 29th of June, 2001. The said VRDE did not clarify the position of the issue of Mass Emission Standards after retrofitment of CNG Kits manufactured on or after 1st of June, 1999 would met the Emission Norms Bharat Stage-2000. The respondents 1 & 2 have thus pleaded their bona fides which occasioned by the desire to speedily implement the orders of Hon'ble Supreme Court dated 28th of March, 1998, 5th of May, 2000 and 26th of March 2001. However, these orders of the Hon'ble Supreme Court have only been referred in written synopsis submitted after conclusion of arguments and were neither shown to the Court nor annexed with this note.

7. The principal submission of the counsel for respondent No. 3-UOI is as follows:

"In other words, the question is whether, as per Rule 115 B of the CMVR it is enough to ensure that CNG kit proposed to be retrofitted in an 'in-use' petrol driven 3 wheelers conforms to the norms set out in the first part of the said Rule, or is it additionally required that the vehicle in which such kit is to be retrofitted must independently and distinctly conform to the petrol emission norms applicable at the time/year when it was manufactured.

It is respectfully submitted that in the course of appreciating the contentions raised in the petition, the following must not be lost sight of:-

(i) CNG kit (Retrofit) is not to be confused with the preexisting 3-wheeler and its engine and that the vehicle is required to conform to the applicable emission norms irrespective of the CNG kits.

(ii) The controversy of distinction between commercial and non-commercial vehicles and the question, whether Rule 115 B became applicable to 3-wheelers before 1-4-2001 or not, is entirely irrelevant because the impugned action of Respondents 1 and 2 is of June 2001 when Rule 115B is fully operational in respect of both types of vehicle i.e. commercial as well as non-commercial.

(iii) Since w-e-f 1-4-2000 only originally fitted CNG operated 3-wheelers are being registered, the controversy is confirmed only to such 3-wheelers which were manufactured between 1-6-1999 to 31-3-2000.

The answer is provided in the second part of Rule 115-B, which says "the in-use vehicles fitted with CNG kits shall meet the emission norms prescribed for gasoline vehicles as applicable to the prevailing norms corresponding to the year of manufacture of the vehicle."

Therefore it necessarily follows the 'Type Approval Certificates' issued by the authorised test agencies in cases of retrofitment of CNG kits in cases of retrofitment of CNG kits in the in-use three-wheelers would, in effect, be conforming not only to the norm worthiness of the CNG Kit but also that of the Petrol emission norms applicable to it at the time or year when the vehicle was manufactured. Thus, if a 2000 model vehicle is submitted for test, it must comply with the petrol emission norms as applicable to it in the year of its manufacture, in addition to conforming with the CNG norms prescribed in Rule 115-B in relation to the CNG Kit retrofitted therein and submitting for testing."

8. The petitioner has, however, relied upon the following orders of the Hon'ble Supreme Court in the following terms:

"Order dated 29.4.99:

All private (non-commercial) vehicles shall conform to Euro-I norms by 1st june 1999. All private (non-commercial) vehicles shall conform to Euro-II norms by 1st April 2000."

The Supreme Court clarified its Order dated 29.4.99 as follows:

"4. It is also clarified that Euro-I Norms for the purpose of this Order means India 2000 norms as notified by the government of India vide GSR No. 493(E) dated 28.8.97 but those norms would be effective from 1st June, 1999.

5. The restriction imposed by our Order dated 29th April, 1999 for the application of Euro-I and Euro-II norms for registration of vehicles would apply w.e.f. the dates as contained in that Order dated 29.4.00..."

[Emphasis supplied)

9. The said rule 115B essentially requires that the vehicle retrofitted with a CNG kit ought to conform to the emission norms corresponding to the year of the manufacture of the vehicle to which it is being retrofitted. For example if a certificate is held by a retrofitter for retrofitment for a period, say from 1998 to 2003, then a vehicle manufactured in 2000 retrofitted with a CNG kit by such certified retrofitter after refitment, shall have to conform to the emission norms of 2000 and not 1998, the date of the grant of certificate valid for 5 years to the retrofitter. The dispute, however, only centres around the denial of the permission to the petitioner to retrofit the vehicles manufactured between 1.6.99 and 31.3.2000. This is done on the understanding of the above Rule 115 B by respondents 1 & 2 which is sought to be understood through some correspondence between Delhi Administration and the MOST. Some of the correspondence indeed invites clarifications from MOST and the understanding of the Rule by Delhi Administration is based upon such clarifications which have the effect of conveying an impression that the petitioner having got a test conducted by a testing agency specified under Rule 126, i.e., VRDE is not competent to retrofit vehicles manufactured between 1.6.99 and 31.3.2000. Certain later clarifications to this effect from VRDE are also sought to be relied upon.

10. I am of the view that the clarifications given by Government Departments and even of the Central Government cannot be of any avail when statutory rules have been enacted and hold the field. It is the Rule 115 B which has to be given full effect to subserve the intent behind the said Rule which is to improve the environment. In addition one has to be guided by any judgment/order of the Hon'ble Supreme Court having a bearing upon the said Rule 115 B. None of the parties have shown me any order of the Hon'ble Supreme Court having direct bearing on the issue involved in this writ petition. It is also necessary to bear in mind the spirit behind the directions of the Hon'ble Supreme Court particularly those relating to complete switch-over to CNG mode by 30th September, 2001 by autorikshaws and buses. This court as well as other authorities must strive to give full effect to the directions given by Hon'ble Supreme Court so that the switchover to the CNG mode takes place in Delhi smoothly and expeditiously by conforming to the statutory norms.

11. The petitioners have also produced a certificate which shows that the vehicle retrofitted by them has been found by the VRDE to meet even the 2000 emission norms insisted upon by the respondents 1 & 2. The further condition sought to be imposed by the respondents that the vehicles manufactured between 1.6.1999 to 31.3.2001 cannot be retrofitted by the petitioner does not appear to be warranted by the language of Rule 115 B. Indeed the Union of India in its affidavit and its submissions has clearly taken a stand which clearly supports this view. So long as the requirements of the emission norms prescribed for the year of the manufacture of the retrofitted vehicle are not violated, the direction contained in the letter dated 29.6.2001 cannot be sustained and the validity of a certificate secured by a retrofitter must be given its full effect for the period for which the certificate is valid notwithstanding a differing view being adopted in the communications from the Union of India which in my view are extraneous to the determination of the effect of said Rule 115 B. Furthermore the requirement of fulfillment of Rule 115(10-A) which provides for Mass Emission Standards for petrol driven vehicles, is inherent in Rule 115 B except for the substitution of 'non methane hydrocarbon' in place of 'hydrocarbon'. Thus the Rule 115 b(ii) as already explained requires the meeting of emission norms prescribed for gasoline vehicles as applicable to the year of manufacture of the retrofitted vehicle. In this view of the matter, the alternative pleas of the petitioner are not required to be considered. The writ petition is thus allowed in terms of prayer (i) and the letter dated 29.6.2001 Annex. '7' issued by respondent No. 1 is quashed and set aside as being ultra vires of Rule 115 B. The respondents 1 & 2 are further directed not to prevent the retrofitment of vehicles by the petitioners so long as Rule 115 B is complied with and the petitioner holds a valid and current certificate issued by any authority specified in Rule 115 B.

12. In view of the above, the petition is accordingly disposed of.