Delhi High Court
Rana Motors Pvt. Ltd. vs Govt. Nct Of Delhi & Ors. on 17 September, 2020
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14th August, 2020
Decided on: 17th September, 2020
+ W.P.(C) 9952/2019 & CM APPL. 49727/2019
RANA MOTORS PVT. LTD. ..... Petitioner
Through: Mr. Siddharth Nath, Advocate
versus
GOVT. NCT OF DELHI & ORS. ..... Respondents
Through: Mr. Sanjoy Ghose & Mr.
Anupam Srivastava, ASC with
Mr.Rishabh Jetley &
Mr.Naman Jain, Advocates for
GNCTD.
Mr. Ajay Gupta, Advocate
for R-3.
%
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
PRATEEK JALAN, J.
1. The petitioner has filed the present writ petition challenging the
legality of a notification issued by the Government of NCT of Delhi
[respondent no.1 herein] wherein provisions have been made for
transport vehicles of various categories to be equipped with speed
governors of the specifications set out therein. The said notification,
bearing no. F.No.MLO(VIU)/TPT/2017/165/315 dated 17.07.2018
("the impugned notification"), has purportedly been issued in exercise
of powers conferred by Rule 118(2) of the Central Motor Vehicles
Rules, 1989 ("the Rules") and Section 2(41) of the Motor Vehicles
Act, 1988 ("the Act").
Facts
2. The petitioner is a dealer in motor vehicles, particularly those
manufactured by Maruti Suzuki India Limited. These include the
models Maruti Suzuki Omni Cargo, EECO Cargo, and Super Carry,
which are classified as light goods vehicles. According to the
petitioner, it has been unable to register the said vehicles in Delhi due
to the restrictions laid down in the impugned notification.
3. As far as the present petition is concerned, the petitioner claims
that the vehicles have been verified and specified by an authorized
testing agency to have a rated speed of not more than 80 kilometres
per hour ("kmph"). The present petition does not concern vehicles
registered prior to 01.10.2015.
Provisions of the Act and Rules
4. Section 2(41) of the Act and Rule 118(2) of the Rules have been
cited as the statutory basis for issuance of the impugned notification.
5. Section 2(41) of the Act provides for the definition of the term
"State Government" in relation to a Union Territory. It reads as
follows:
"State Government, in relation to a Union Territory means
the administrator thereof appointed under article 239 of
the Constitution".
6. Rule 118 of the Rules framed by the Central Government,
pursuant to the provisions of the Act, deals with installation of speed
governors. Rule 118, as substituted by an amendment dated
15.04.2015, reads as follows:-
"118. Speed governor.- (1) Every transport vehicle
notified by the Central Government under sub-section (4)
of section 41 of the Motor Vehicles Act, 1988 (59 of 1988),
save as provided herein, and manufactured on or after
the 1st October, 2015 shall be equipped or fitted by the
vehicle manufacturer, either in the manufacturing stage or
at the dealership stage, with a speed governor (speed
limiting device or speed limiting function) having
maximum pre-set speed of 80 kilometre per hour
conforming to the Standard AIS 018/2001, as amended
from time to time:
Provided further that the transport vehicles that are-
(i) two wheelers;
(ii) three wheelers;
(iii) quadricycles;
(iv) four wheeled and used for carriage of passengers
and their luggage, with seating capacity not
exceeding eight passengers in addition to driver seat
(M1 Category) and not exceeding 3500 kilogram
gross vehicle weight;
(v) fire tenders;
(vi) ambulances;
(vii) police vehicles;
(viii) verified and certified by a testing agency specified
in rule 126 to have maximum rated speed of not
more than 80 kilometer per hour,
shall not be required to be equipped or fitted with speed
governor (speed limiting device or speed limiting
function):
Provided further that the transport vehicles manufactured
on or after 1st October, 2015 that are dumpers, tankers,
school buses, those carrying hazardous goods or any other
category of vehicle, as may be specified by the Central
Government by notification in the Official Gazette from
time to time, shall be equipped or fitted by the vehicle
manufacturer, either in the manufacturing stage or at the
dealership stage, with a speed governor (speed limiting
device or speed limiting function) having maximum speed
of 60 kilometer per hour conforming to the Standard AIS
018/2001, as amended from time to time.
(2) The State Government shall, by notification in the
Official Gazette, specify on or before 1st October, 2015,
the categories of transport vehicles registered prior to the
1st October, 2015 which are not already fitted with a speed
governor (speed limiting device or speed limiting
function), and are not covered under the first proviso to
sub-rule 1 above, that such transport vehicles shall be
equipped or fitted by the operators of those vehicles on or
before 1st April, 2016 with a speed governor (speed
limiting device or speed limiting function), having
maximum pre-set speed of 80 kilometre per hour or such
lower speed limit as specified by the State Government
from time to time, conforming to the Standard AIS:
018/2001, as amended time to time:
Provided that the categories of transport vehicles carrying
hazardous goods and those transport vehicles that are
dumpers, tankers or school buses, registered prior to the
1st October, 2015 and not already fitted with a speed
governor (speed limiting device or speed limiting
function), shall be equipped or fitted by the operator of
such vehicle, with a speed governor (speed limiting device
or speed limiting function) having maximum pre-set speed
of 60 kilometre per hour or such other lower speed limit as
may be specified by the State Government, conforming to
the Standard AIS: 08/2001, as amended from time to
time."
(Emphasis supplied)
Impugned notification
7. Before dealing with the contentions of the parties, the relevant
parts of the impugned notification are set out below:-
"TRANSPORT DEPARTMENT
NOTIFICATION
Delhi, the 17th July, 2018
F.No.MLO(VIU)/TPT/2017/165/315.-In exercise of the
powers conferred by sub-rule (2) of rule 118 of the Central
Motor Vehicles Rules, 1989 and clause (41) of section 2 of
the Motor Vehicles Act, 1988 (Act No. 59 of 1988) the
Lieutenant Governor of the National Capital Territory of
Delhi, in supersession of earlier notification bearing No.
PCO/STA/II/2001/PF-2/194, dated 24.02.2003, hereby
orders that, every transport vehicle registered prior to the
1st October, 2015, which are not already fitted with a
speed governor (speed limiting device or speed limiting
function), and are not covered under the first proviso to
sub-rule (1) of rule 118 of the Central Motor Vehicles
Rules, 1989 shall be equipped or fitted by the operator of
those vehicles with a speed governor (speed limiting device
or speed limiting function) conforming to the AIS Standard
018/2001, as amended from time to time, having maximum
pre-set speed as specified below:
TABLE
S.No. Vehicle category Maximum Pre-set
speed in Kilometer
per hour
(1) (2) (3)
(i) Transport vehicles covered with All India 80
Tourist Permits, Interstate Permits and
National Permits, save as provided in (ii)
below
(ii) Dumpers, tankers and vehicles carrying 60
hazardous goods
(iii) School buses covered by any permit, all 40
transport vehicles covered with permits to
ply only within the National Capital
Territory of Delhi or National Capital
Region and all transport vehicles
exempted from the necessity of permits
(iv) Airport Passenger bus referred to in rule 30
93-C of the Central Motor Vehicles
Rules, 1989
Provided that out of the categories of vehicles mentioned
in (iii) tabulated above and registered on or after 1st
October, 2015 & covered by the Hon'ble Supreme Court
Order dated 20th November 1997, in the matter of M.C.
Mehta Vs Union of India & Ors. in WP(C) No.13029 of
1985 i.e. heavy and medium transport vehicles, and light
goods vehicles being four wheeler shall also be equipped
or fitted with a speed governor (speed limiting device or
speed limiting function) having maximum pre-set speed
of 40 Kilometer per hour.
(2) Every speed governor (speed limiting device or speed
limiting function) shall be type approved for the particular
model of the vehicle by any one of the testing agencies
specified under rule 126 of the Central Motor Vehicles
Rules, 1989.
(3) The retro-fitment of Speed Limiting Device shall be in
accordance with guidelines issued by the Ministry of Road
Transport and Highways, Govt of India and Hon'ble
Supreme Court Committee on Road Safety from time to
time.
(4) Every speed limiting device shall be sealed by the
concerned vehicle manufacturer or the manufacture of
concerned speed limiting device or their authorized
representative, whosoever fitted the speed limiting device
with a type of seal specified by the Transport Department,
Government of NCT of Delhi.
(5) The owner / driver of every vehicle equipped with the
speed governor (speed limiting device or speed limiting
function) shall produce a certificate issued by the
concerned vehicle manufacturer or the manufacturer of
concerned speed governor (speed limiting device or speed
limiting function) or their authorized representative,
whosoever fitted the speed governor, confirming the
maximum pre-set speed specified herein above, at the time
of production of vehicle for grant or renewal of certificate
of fitness.
Provided that the issuance of said certificate should
have been made within fifteen days prior to the date of
production of vehicle for grant or renewal of certificate of
fitness."
(Emphasis supplied)
8. It is evident from the above that the principal part of Clause 1 of
the impugned notification deals with transport vehicles registered prior
to 01.10.2015, to the extent that such vehicles are neither fitted with
speed governors nor exempted under the first proviso to Rule 118(1)
of the Rules. Such vehicles are required to be fitted with speed
governors, the maximum speed being specified in the table according
to the category of vehicle. The proviso to Clause 1, in turn, deals with
a class of vehicles registered after 01.10.2015. For those vehicles
which fall within the classes mentioned in the judgment of the
Supreme Court dated 20.11.1997 [reported as M.C. Mehta vs. Union
of India (1997) 8 SCC 770], the proviso to clause 1 requires fitment of
a speed governor with a maximum speed of 40 kilometres per hour.
Submissions of counsel for the parties
9. Although the prayers, as framed in the writ petition, are of
somewhat wider amplitude, Mr. Siddharth Nath, learned counsel for
the petitioner, confined the challenge to the proviso to Clause 1 of the
impugned notification ("the impugned proviso"), which deals with
vehicles registered on or after 01.10.2015. He submitted that the
impugned proviso is ultra vires the powers of GNCTD for the
following reasons:-
a) Rule 118(2) empowers the State Government to issue a
notification in respect of vehicles registered prior to 01.10.2015,
whereas the impugned proviso applies to vehicles registered on or
after 01.10.2015.
b) Rule 118(2) expressly stipulates that the notification in question
must be made by the State Government before 01.10.2015, whereas
the impugned notification was issued only on 17.07.2018 i.e.
almost three years after the date fixed in the Rule.
c) Rule 118(2) empowers the State Government to require the
transport vehicles covered thereunder to be equipped or fitted with
speed governors on or before 01.04.2016. The issuance of the
impugned notification after 01.04.2016 renders the mandate of the
Rule impossible of compliance.
d) The power under Rule 118(2) is only in respect of those
vehicles, which are not covered under the first proviso to Rule
118(1), whereas the light goods vehicles in which the petitioner
deals, are covered under Clause (viii) of the first proviso to Rule
118(1), as they have been verified and certified by a testing agency
specified in Rule 126 to have maximum rated speed of not more
than 80 kmph.
10. Mr. Nath further submitted that, for the category of vehicles
with which the present case is concerned (viz., light goods vehicles
registered on or after 01.10.2015), Rule 118(1) covers the field. The
said Rule provides that the vehicles shall be equipped or fitted by the
manufacturer, either in the manufacturing stage or at the dealership
stage, with a speed governor having maximum pre-set speed of 80
kmph. By virtue of the first proviso to Rule 118(1), various exceptions
have been set out. The exception in Clause (viii) to the first proviso to
Rule 118(1) exempts a vehicle which is verified and certified by a
testing agency to have a maximum rated speed of not more than 80
kmph. Mr. Nath submitted on facts that the light goods vehicles in
which the petitioner deals fall within Clause (viii) of the said proviso.
In any event, he submitted that the maximum speed of 80 kmph
required by Rule 118(1) could not have been reduced to 40 kmph, by
virtue of impugned proviso.
11. Mr. Anupam Srivastava and Mr. Sanjoy Ghose, learned
Standing Counsel for the GNCTD, defended the impugned
notification on the basis of the judgment in M.C. Mehta (supra).
Although it was expressly conceded by learned counsel that the
impugned proviso could not be issued under Rule 118(2), it was
submitted that the aforesaid judgment of the Supreme Court directed
the respondent authorities to ensure that the concerned categories of
vehicles, including light goods vehicles, were fitted with speed
governors with a pre-set speed limit of 40 kmph. Learned counsel
relied particularly upon the directions contained in paragraph 1 of the
annexure to the said judgment.
12. Learned counsel submitted that the judgment in M.C. Mehta is
still in operation by relying upon orders dated 20.11.2015 and
14.12.2015 passed by the Supreme Court in W.P. (C) 793/2015, and
upon a Division Bench judgment of the Punjab and Haryana High
Court in G.R.L. Engineers vs. State of Haryana & Anr., 2017 SCC
OnLine P&H 441 [CWP-380-2017 (O&M), decided on 01.02.2017].
13. In rejoinder, Mr. Nath drew our attention to the opening words
of the impugned notification, which clearly state that the notification
has been issued under Rule 118(2) of the Rules. He submitted that
although the judgment in M.C. Mehta (supra) is referred to in the
impugned proviso and in the counter affidavit dated 14.07.2020 filed
on behalf of GNCTD, the respondent has not sought to derive power
to issue the notification from the said judgment, but from the Rule
itself. Mr. Nath referred to the M.C. Mehta judgment in some detail to
contend that the directions contained in the annexure were intended to
operate only until necessary action was taken by the executive. He
submitted that the intention of the Supreme Court was not to fix a
specific speed limit in perpetuity but for the directions given in the
judgment to hold the field until the executive filled the lacuna. Mr.
Nath relied upon the judgment of this Court in Avtar Singh Hit vs.
Delhi Sikh Gurdwara Management Committee & Ors., (2006) 127
DLT 535 in support of his submission that an authority cannot be
permitted to justify its order on the basis of reasons not found therein
but subsequently placed on affidavit. Learned counsel distinguished
the judgment in G.R.L. Engineers (supra) on the ground that the
Punjab and Haryana High Court was concerned with the question of
empanelment of manufacturers of speed governors and not with the
substantive direction contained in paragraph 1 of the annexure to the
judgment in M.C. Mehta.
Analysis
(a) Scope of consideration
14. From the submissions of counsel as recorded above, it is evident
that the petitioner's challenge has been limited to the impugned
proviso, which the GNCTD seeks to justify, not on the basis of Rule
118(2), but on the judgment of the Supreme Court in M.C. Mehta
(supra).
15. At the outset, we may note that, in the impugned notification,
Rule 118(2) alone has been identified as the source of the power under
which it has been issued. The reference to M.C. Mehta in the proviso
to Rule 118(1) is only for the purpose of identifying the class of
vehicles to which it applies and not as a source of power. Similarly, in
the counter-affidavit to the present petition, the GNCTD has sought to
justify the impugned notification on the basis of the Rules, and has
cited the judgment in M.C. Mehta only to justify the classification
between vehicles having a national permit on the one hand and those,
which have a permit only for NCR/NCT [paragraph 7]. The following
averments are relevant in this regard:
"6. The Petitioner has contended that the State
Government can only concern itself with vehicles
registered prior to 01.10.2015 and not afterwards, and
that too with a notification that should have been issued
prior to 01.10.2015. However, this is nowhere indicated in
the Rules. The Rules do not bar the State Government
from issuing the instant notification, and covering
vehicles manufactured on or after 01.10.2015. Sub-Rule
(1) of Rule 118 provides that those motor vehicles that
have been notified by the Central Government under
Section 41 (4) and manufactured on or after 01.10.2015,
would have to be equipped or fitted by the manufacturer
with a speed governor having maximum pre-set speed of
80 km/hr. It nowhere states that the State Government
does not have the power to issue a Notification enforcing
these requirements.
7. The Petitioner has also challenged the Notification on
the ground that it creates different classes of vehicles,
having National permit and NCR/NCT permit
respectively, with different speed limits, and that there is
no intelligible differentia for the same. However, this
distinction is itself created by the Hon'ble Supreme Court
in M.C. Mehta v. Union of India (1997 8 SCC 770),
where NCR has been treated to be a special case, and
having a more serious traffic situation than other areas.
The Hon'ble Supreme Court, in its directions has held that
heavy, medium transport and light goods vehicles would
not be permitted to operate on roads of NCR/NCT unless
they have speed control devices to ensure that they do not
exceed the speed limit of 40 km/hr. It has been clearly
stated that this would not be applicable to Inter-state
permit and national permit vehicles. Therefore, the
distinction challenged by the Petitioner has been created
by the Hon'ble Supreme Court itself.
xxxx xxxx xxxx
9. Section 110 (1) (f) states that the Central Government
has the power to make rules regarding speed governors.
Rule 118 has been made pursuant to this power, and in
sub-Rule 2, the State Government has been explicitly
directed to specify regarding vehicles prior to 01.10.2015.
However, this does not imply that the State Government
has no power to monitor the vehicles after 01.10.2015,
under sub-Rule (1). Sub-Rule (1) concerns those vehicles
notified by the Central Government under Section 41 (4),
and manufactured on or after 01.10.2015, but nowhere
states that the State Government would have no power to
ensure compliance of Sub-Rule (1).
xxxx xxxx xxxx
11. Therefore, it is evident that the responsibility of
ensuring that transport vehicles are equipped or fitted with
speed governors conforming to the standards, whether
these vehicles were manufactured before or after
01.10.2015, is that of the State Government. The different
categories created by the two Sub-Rules, do not concern
the power of the State Government to ensure enforcement
of the Rule and the standards prescribed therein.
Moreover, it has been recognised that State Governments
would be justified in imposing even additional
requirements concerning speed governors which have not
been provided in the Rules. Therefore, the answering
Respondent had sufficient power and competence to issue
the Impugned Notification, and the same is lawful and
valid."
(Emphasis supplied)
16. It is settled law that an executive order cannot be justified on
grounds which are not borne out by the record, but sought to be urged
during the course of litigation, by way of affidavit or otherwise. The
Constitution Bench judgment of the Supreme Court in Mohinder
Singh Gill & Anr. vs. Chief Election Commissioner, New Delhi &
Ors., (1978) 1 SCC 405 laid down this principle in the following
terms:
"8. The second equally relevant matter is that when a
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise. Otherwise, an
order bad in the beginning may, by the time it comes to
court on account of a challenge, get validated by
additional grounds later brought out. We may here draw
attention to the observations of Bose, J. in Gordhandas
Bhanji [Commr. of Police, Bombay v. Gordhandas
Bhanji, AIR 1952 SC 16] :
"Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the light of
explanations subsequently given by the officer making the
order of what he meant, or of what was in his mind, or
what he intended to do. Public orders made by public
authorities are meant to have public effect and are
intended to affect the actings and conduct of those to
whom they are addressed and must be construed
objectively with reference to the language used in the
order itself."
Orders are not like old wine becoming better as they
grow older."
The judgment in Mohinder Singh Gill (supra) has been followed in
several later judgments of the Supreme Court including inter alia
Dipak Babaria & Anr. vs. State of Gujarat & Ors., (2014) 3 SCC 502
[paragraph 64] and Pavanendra Narayan Verma vs. Sanjay Gandhi
PGI of Medical Sciences & Anr., (2002) 1 SCC 520 [paragraph 34].
17. It is however also the settled position [laid down inter alia in
P.K. Palanisamy vs. N. Arumugham & Anr., (2009) 9 SCC 173
(paragraphs 28 & 29) and Mohd. Shahabuddin vs. State of Bihar &
Ors., (2010) 4 SCC 653 (paragraph 208)] that an act of a public
authority cannot be invalidated merely because a wrong provision or
section was cited as the source of authority. Where an authority is
competent to exercise a particular power, the exercise of that power is
not invalidated merely because the authority has misquoted the
provision under which it acts. So long as the order is within
jurisdiction, a misunderstanding or misstatement as to the source of
the power is not fatal to its exercise.
18. We have therefore examined the respondent's contentions, both
on the basis taken in the counter-affidavit (i.e., that the impugned
proviso flows from the Rules), and the arguments advanced by learned
Standing Counsel (i.e., that it is derived from the directions of the
Supreme Court in M.C. Mehta).
(b) Is the notification ultra vires Rule 118?
19. As far as Rule 118 is concerned, the power conferred under
Rule 118(2) is expressly limited to issuance of a notification in respect
of transport vehicles registered prior to 01.10.2015. The requirement
for installation of speed governors for vehicles registered after the said
date is dealt with in Rule 118(1), which itself lays down the required
specifications, and does not leave it to the State Governments to
prescribe. Inasmuch as the impugned proviso expressly deals with
transport vehicles of certain categories registered on or after
01.10.2015, we are therefore of the view that it cannot be justified by
reference to the aforesaid Rules.
20. Further, the impugned notification was issued only on
17.07.2018, whereas the State Government was required to exercise
the power conferred by Rule 118(2) before 01.10.2015. This limitation
becomes particularly relevant when it is seen that the operators of the
concerned vehicles were required to have the vehicles equipped or
fitted with a speed governor of the specified speed limit on or before
01.04.2016. Thus, Rule 118(2) required the State Government to act
on or before 01.10.2015, after which the operators of the concerned
vehicles would have six months to ensure compliance. The issuance of
the impugned notification in 2018, when read in the context of the
Rule, cannot be justified.
21. Mr. Nath also contended that, even in respect of vehicles
registered prior to 01.10.2015, Rule 118(2) carves out an exception in
respect of vehicles covered by the proviso to Rule 118(1). He
submitted that the vehicles in which the petitioner deals are covered
by clause (viii) of the said proviso. While it is true that the impugned
notification does not appear to take account of this exception, we
would ordinarily have read down the requirement to bring it in line
with the proviso to Rule 118(1). However, in view of our findings
hereinabove regarding the power of the GNCTD, it is not necessary to
enter into this exercise.
(c) Does M.C. Mehta (supra) confer the requisite power upon the
GNCTD?
22. In M.C. Mehta (supra), the Supreme Court was considering a
public interest litigation relating to proper management and control of
traffic in the National Capital Region and in the National Capital
Territory of Delhi. The Court took into account the submissions of
counsel and also required the presence of senior officers of the
respondent authorities. Various directions were thereafter issued and
reproduced in an annexure to the judgment. The following extracts of
the aforesaid judgment are relevant to examine whether the judgment
in fact confers power upon the GNCTD to issue the impugned
notification:-
"2. Having heard all of them and after taking into account
the various suggestions which have been given at the
hearing, we find that there are adequate provisions in the
existing law which, if properly enforced, would take care
of the immediate problem and to a great extent eliminate
the reasons which are the cause of the road accidents in
NCR and NCT, Delhi. In view of the fact that the above
officers expressed some doubt about the extent of powers
of the authorities concerned to take adequate and suitable
measures for speedy enforcement of these provisions and
the remedial steps needed to curb the growing menace of
unregulated and disorderly traffic on the roads, we
consider it expedient to clarify that position in this order
with reference to the relevant provisions of the existing
law. It is obvious that it is primarily for the Executive to
devise suitable measures and provide the machinery for
rigid enforcement of those measures to curb this menace.
However, the inaction in this behalf of the Executive in
spite of the fact that this writ petition is pending since
1985 and the menace instead of being controlled
continues to grow in perpetuation of this hazard to public
safety, it has become necessary for this Court to also
issue certain directions which are required to be promptly
implemented to achieve the desired result. It is needless to
add that these directions are to remain effective till such
time as necessary action in this behalf is taken by the
Executive authorities concerned so that the continuance
thereafter of these directions may not be necessary.
3. In our opinion, the provisions of the Motor Vehicles
Act, 1988, in addition to the provisions in the existing
laws, for example, the Police Act and the Code of
Criminal Procedure, confer ample powers on the
authorities to take the necessary steps to control and
regulate road traffic and to suspend/cancel the
registration or permit of a motor vehicle if it poses a
threat or hazard to public safety. It need hardly be added
that the claim of any right by an individual or even a few
persons cannot override and must be subordinate to the
larger public interest and this is how all provisions
conferring any individual right have to be construed. We
may now refer to some provisions of the Motor Vehicles
Act, 1988 (for short "the Act") which are relevant for the
purpose.
xxxx xxxx xxxx
6. Chapter IV deals with the registration of motor vehicles
wherein Section 39 prescribes the necessity for
registration. It says that unless the vehicle is registered in
accordance with the provisions of the Act, it cannot be
driven in any public place. The responsibility to ensure
that such a vehicle is not driven is not merely on the
person driving the vehicle but also on the owner of the
vehicle. Section 45 permits refusal of registration or
renewal of the certificate of registration inter alia on the
ground that the vehicle is mechanically defective or fails
to comply with the requirements of the Act or the rules
made thereunder. It is obvious that the vehicle must be
roadworthy in the sense that there is no mechanical defect
therein to permit it being used as a motor vehicle. The
necessity of complying with all the requirements makes it
clear that any requirement which is specified under the
Act or by the rules, has to be fully complied with and
such a requirement would include the requirement of a
specified category of motor vehicles being fitted with
speed governors or such other devices as may be
prescribed by law. Section 53 permits suspension of
registration by the registering authority or other
prescribed authority if it has reason to believe that any
motor vehicle 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 this Act or of the
rules made thereunder. It is significant that this power to
suspend the registration is available to the authority even
if the condition of the motor vehicle is found to be such
that its use in a public place would constitute a danger to
the public, irrespective of whether that is a specific
requirement of the Act or the rules. The conferment of this
power is for the obvious reason that a motor vehicle which
is considered to be unsafe or which poses a danger to the
public in a public place, if driven, should not be permitted
to ply at a public place since the paramount need is public
safety. It is, therefore, clear that even if speed governors
are not prescribed for a particular class of motor vehicles
by any requirement of the Act or the rules made
thereunder, it is permissible for the authority concerned
to require the fitting of the speed governors in such motor
vehicles for the purpose of ensuring that there is no
danger to the public by the use of such a motor vehicle in
a public place. The power under Section 53 to this extent is
wider. Section 53 read with Section 45 leaves no doubt
about the amplitude of power of the authorities concerned
whose duty it is to control and regulate the traffic in public
places. The basic test to be applied by them for exercise of
this power is the need to ensure that there is no danger to
the public by use of any motor vehicle in a public place.
7. It is indisputable that heavy and medium vehicles as
well as light goods vehicles are in a class by themselves
insofar as their potential to imperil public safety is
concerned. There is, therefore, immediate need to take
measures such as installation of speed-control devices and
ensuring that such vehicles are driven by authorised
persons. Such measures, designed to further public safety,
would undoubtedly be covered by the aforementioned
provisions.
xxxx xxxx xxxx
14. It is needless for us to add that the entire scope of this
matter and particularly this aspect to which this order
relates, namely, the control and regulation of traffic in
NCR and NCT, Delhi, is a matter of paramount public
safety and, therefore, is evidently within the ambit of
Article 21 of the Constitution. That being so, the making of
this order has become necessary and can no longer be
delayed because of the obligation of this Court under
Article 32 of the Constitution which is invoked with the aid
of Article 142 to give the necessary directions given today
separately.
[Annexure]
Order given on November 20, 1997 in W.P. (C) No. 13029
of 1985 and in W.Ps. (C) No. 9300 of 1982, 939 of 1996,
95 of 1997 and I.As. Nos. 7, 8, 9 & 10 in W.P. (C) No.
13029 of 1985
1. After hearing learned counsel for the parties and
learned amicus curiae, for reasons indicated separately, in
exercise of the power of this Court under Article 32 read
with Article 142 of the Constitution of India, we hereby
give the following directions, namely:
A. The Police and all other authorities entrusted with
the administration and enforcement of the Motor Vehicles
Act and generally with the control of the traffic shall
ensure the following:
(a) No heavy and medium transport vehicles, and light
goods vehicles being four-wheelers would be permitted to
operate on the roads of the NCR and NCT, Delhi, unless
they are fitted with suitable speed-control devices to
ensure that they do not exceed the speed-limit of 40
kmph. This will not apply to transport vehicles operating
on inter-State permits and national goods permits. Such
exempted vehicles would, however, be confined to such
routes and such timings during day and night as the
police/transport authorities may publish. It is made clear
that no vehicle would be permitted on roads other than the
aforementioned exempted roads or during the times other
than the aforesaid time without a speed-control device.
........"
(Emphasis supplied)
23. On a careful reading of the said judgment, we are of the view
that it does not confer power upon the State Government to issue the
impugned notification. The judgment proceeds on the basis that the
Act and Rules contain sufficient provisions to enable the authorities to
act in the interest of curbing the menace of traffic in Delhi. In view of
the inaction of the executive, the Supreme Court issued the directions
contained in the Annexure to the judgment. However it was made
expressly clear in paragraph 2 of the judgment that the directions
issued by the Supreme Court were intended to have effect until the
executive acted to fill the lacuna. As the Rules in respect of speed
governors have been amended thereafter, lastly in 2015, the directions
in para 1(A)(a) of the Annexure to the judgment, cannot be said to
clothe the respondent with the power to issue the impugned proviso.
24. Learned Standing Counsel for the GNCTD submitted that the
judgment of the Supreme Court in M.C. Mehta (supra) continues to
hold the field by reference to orders dated 20.11.2015 and 14.12.2015
passed by the Supreme Court in W.P.(C) 793/2015 titled as Suraksha
Foundation vs. Union of India and Ors. The said orders are set out
below:
Order dated 20.11.2015
" Heard learned counsel for the petitioner and
perused the relevant material.
Issue notice, returnable on 11th January, 2016.
The State Governments, Union Territories as also
the Union of India to submit report(s) with regard to
implementation of the judgment of this Court in M.C.
Mehta Vs. Union of India & Ors [(1997) 8 SCC 770]."
Order dated 14.12.2015
" On due consideration the prayer made in I.A. No.1
of 2015 is allowed. The last para of the order dated
20.11.2015 is modified to read as follows :
"Union of India as well as the States/Union Territories
are directed to furnish reports as regards the steps taken
by them in pursuance of the various judgments passed by
this Hon'ble Court as well as the statutory notifications
and the letter dated 21.08.2009 for the implementation of
the notification dated 15.04.2015 issued by the Ministry
of Road Transport & Highways."
Accordingly, I.A. No.1 of 2015 - Application for
modification is disposed of."
25. Neither of these orders, in our view, supports the argument on
behalf of the GNCTD. Although the order dated 20.11.2015 cites the
judgment in M.C. Mehta, it is clear that the said reference was in fact
deleted by virtue of the order dated 14.12.2015.
26. Similarly, the Division Bench of the Punjab and Haryana High
Court in G.R.L. Engineers (supra), cited by learned Standing Counsel,
concerns empanelment of manufacturers of speed governors. While
tracing the historical background in which the Government of Haryana
had commenced the process of empanelment, the Court referred to
M.C. Mehta (supra) and directions issued by the Union of India to all
State Governments pursuant thereto. While dealing with the eligibility
conditions stipulated in the public notice of the State of Haryana, the
High Court relied upon M.C. Mehta to hold that the provisions of the
Act and various other statutes were sufficient to confer power upon
authorities to take all necessary steps to control and regulate traffic.
The findings of the Court based upon the judgment in M.C. Mehta are
as follows:-
"17. Even assuming that the directions are issued in
exercise of the power of the Supreme Court under Article
142, it would make no difference. We are bound by the
observations and the directions issued by the Supreme
Court. We will restrict our judgment to speed governors
and determine the question of the State Government's
power to stipulate the eligibility criteria for empanelment
of suppliers thereof only on the basis of M.C. Mehta's
case (supra). It is important to note a few aspects of this
judgment. In paragraph 3, it is held that not only the
provisions of the Motor Vehicles Act, 1988 but even the
provisions of other existing laws such as the Police Act
and the Code of Criminal Procedure confer ample power
upon the authorities to take necessary steps to control and
regulate the traffic and to suspend/cancel the registration
or permit of a motor vehicle if it poses a threat or hazard
to public safety. It is the State Governments that exercise
the control under the Police Act. These provisions have
been interpreted by the Supreme Court as conferring
power on the authorities to take steps to control and
regulate road traffic. The power, therefore, is traced not
only under the Motor Vehicles Act but even otherwise.
Further these observations are in respect inter alia of
speed governors. This is clear from the observations in
paragraph 6 of the judgment where firstly it is stated that
section 45 of the Act permits refusal of registration on the
ground that the vehicle fails to comply with the
requirements of the Act or the Rules made thereunder and
that the necessity of complying with all the requirements
makes it clear that any requirement which is specified
under the Act or the rules has to be fully complied with.
The word "requirement" relates to the requirements of
the Act or the Rules. It is of vital importance to note that it
is further held that such requirement would include the
requirement of a specified category of motor vehicles
being fitted with speed governors or such other devices as
may be prescribed by law. The Supreme Court therefore
read into the Act and the Rules the requirement of speed
governors. It is equally, if not more important, to note that
in the last but one sentence, it is held that section 53 read
with section 45 leaves no doubt about the amplitude of the
power of the authorities concerned "whose duty is it to
control and regulate the traffic in public places". As we
noticed earlier the duty to control and regulate the traffic
in public places is also of the State authorities. The doubt
in this regard is set at rest by the observations in
paragraph 12 where it is expressly held that the existing
provisions of the Act alone are sufficient to clothe the
police force and transport authorities with ample power
to control and regulate the traffic in an appropriate
manner so that no vehicle used in a public place poses
any danger to the public in any form. This conclusion was
clarified to be even without reference to the general
powers available to the police officers under the Police
Act and the Code of Criminal Procedure. As noted
earlier, the power was recognized in the State authorities
even under the Police Act and the Code of Criminal
Procedure.
18. In view of the judgment in M.C. Mehta's case
(supra), it is not possible for us to hold that the State
Government has nothing to do with speed governors.
19. Once it is held that the State Governments are also
bound to ensure road safety and to that end are required
to ensure the fitment of speed governors it follows that
they are also bound to ensure that the speed governors
fulfill their purpose and are of good quality. Quality
control in turn can be ensured inter alia by sourcing the
speed governors from qualified suppliers. The suitability
of suppliers can be ensured by stipulating relevant
criteria. The State Governments, therefore, have the
power to stipulate criteria for the empanelment of
suppliers of speed governors."
(Emphasis supplied)
27. The judgment of the High Court of Punjab and Haryana does
not, in our view, hold that M.C. Mehta confers an independent power
upon State Governments to prescribe a speed limit which is at
variance with the mandate of the Rules framed by the Union of India.
Conclusion
28. For the reasons aforesaid, we conclude that the impugned
proviso is neither referable to the powers vested in the respondent
Government of NCT of Delhi under the Rules, nor to the judgment of
the Supreme Court in M.C.Mehta (supra). The proviso to Clause 1 of
the impugned notification dated 17.07.2018, insofar as it deals with
vehicles registered on or after 01.10.2015, is therefore ultra vires the
powers of the respondent/Government of NCT of Delhi, and is hereby
quashed.
29. The writ petition is allowed to the extent aforesaid, but without
any order as to costs.
30. The pending application also stands disposed of.
PRATEEK JALAN, J.
CHIEF JUSTICE
SEPTEMBER 17, 2020
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