Piaggio Vehicles Pvt. Ltd vs State Of Rajasthan And Ors. ...
2023 Latest Caselaw 3563 Raj

[2023/RJJD/011825]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODH-

PUR S.B. Civil Writ Petition No. 7548/2018

Piaggio Vehicles Private Ltd., Having Its Registered Office At E-2, Midc Area, Baramati 413 133 And Its Corporate Office At Sky One 8Th Floor, S.no. 210, Final Plot No. 72, Town Planning Scheme, Yerwada No. 1, Kalyani Nagar, Pune- 411 006, Through Its Authorised Signatory Shri Pushkar Sinha, Dgm- Business De- velopment.

----Petitioner Versus

1. The State Of Rajasthan Through Secretary, Motor Trans-

port, Department, State Secretariat Jaipur- 302005 Ra- jasthan.

2. The State Transport Authority, Jaipur Through Member., State Secretariat Jaipur- 302005 Rajasthan

3. Regional Transport Authority, Jodhpur, Rto Office, Banar Road, Bjs. Colony, Jodhpur- 342006

----Respondents

For Petitioner(s) : Mr. Sharad Kothari For Respondent(s) : Mr. Saransh Viz for Mr. Sudhir Tak, AAG

HON'BLE DR. JUSTICE NUPUR BHATI

Order

25/04/2023

1. Counsel for the respondent submit that the issue raised in

present writ petition is squarely covered by judgment rendered by

Co-ordinate Bench of this Court in Balaji Automobiles Vs. State

of Rajasthan & Ors. (S.B. Civil Writ Petition No.3080/2018, de-

cided on 26.03.2019). The judgment reads as follows:-

"1. By way of this writ petition, the petitioner has ques- tioned legality of public notice dated 7.2.18 issued by the Regional Transport Authority, Bikaner whereby while notify- ing the list of 15 years old diesel operated auto-rickshaws, the permit holders thereof are informed to replace their ve-

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hicles by auto-rickshaws having LPG/CNG engine within a period of 15 days. The petitioner has also questioned the le- gality of notification dated 15.12.16 issued by the Depart- ment of Transport, Government of Rajasthan, in exercise of the power conferred under sub-section (3) (a) of Section 74 of the Motor Vehicles Act, 1988 (for short "the Act"), the number of contract carriage permits for operating autorick- shaw/auto tonga has been restricted to 6000 and it is di- rected 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. PIAG- GIO 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) compli- ant 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, ex- cept 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 per- mit for diesel auto-rickshaw completely even if it has com- patibility of BS-IV engine is ex facie illegal and arbitrary be- ing contrary to the specific directions issued by the Apex Court as aforesaid. It is submitted that the State Govern- ment and its agencies are permitting the diesel auto-rick-

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shaw in the rural area or the places where the facilities to refill LPG/CNG is not available and thus, the impugned noti- fication issued bears no nexus with the objects sought to be achieved inasmuch as, even in the city areas of State of Ra- jasthan, 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 vehi- cles, 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 notifica- tion, 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 Govern- ment 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 no- tification 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 stands fur- ther 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 popula- tion more than 5 lacs is in conformity with the provisions of subsection (3)(a) of Section 74 of the Act and the notifica- tion issued by the Government of India and the State Gov-

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ernment 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 permit- ting 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 autorickshaws in the city of Bikaner is absolutely unjustified. It is submitted that the ac- tion 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 discrimina- tory. 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-rick- shaw and thus, viewed from any angle, the action of the re- spondents in prohibiting the operation of such auto-rick- shaws in the city of Bikaner in perfunctory manner falls foul of Article 14 of the Constitution of India.

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 Sec- tion 74 of the Act and the notification issued by the Govern- ment 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 mo-

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tor 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 re- garding operation of BS-IV compliant vehicles does not sur- vive.

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 re- spondent 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 reck- oned 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 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 Gov- ernment, having regard to number of vehicles, road condi- tions and other relevant matters, by notification in the Offi- cial 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 vehi-

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cles, road conditions and other relevant matters, by notifica- tion in the Official Gazette, direct the State Transport Au- thority 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 Au- thority, Bikaner to restrict the number of permits for three wheeler autorickshaw/auto tonga to be operated in the city of Bikaner as contract carriage to 4000 was preceded by no- tification 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 speci- fied 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 notifica- tion 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 Govern- ment, restricting the number of three wheeler auto-rick- shaw/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.

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14. As a matter of fact, the challenge in the petition is not to the action of the respondents in restricting the number of autorickshaw and auto tonga to be operated as contract car- riage to a number specified rather, the petitioner is ag- grieved by the action of the State Government in directing that new permits in respect of the said vehicles to the ex- tent of the number specified shall be issued only in respect of LPG/CNG fuel operated vehicles and such existing vehi- cles 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 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 Govern- ment to direct the State Government, having regard to number of vehicles, road conditions and other relevant mat- ters, to limit the number of contract carriage vehicles gener- ally 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 noti- fication 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 pur- suant 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.

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But then, while issuing said notifications, the additional re- striction was imposed om terms that new contract carriage permits shall be granted only in respect of LPG/CNG oper- ated vehicles and the replacement of existing diesel oper- ated 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 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 vehi- cles will not be sold in India by any manufac- turer 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 stan- dards, except on proof that such a vehicle has already been sold on or before 31st 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 in- sertion 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 conse- quently, 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 mo- tor 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 condi- tion 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 or- ders of this Court that BS-IV and now BSVI norms have been introduced from the dates which were not even thought of by the Govern- ment, we feel that we have to take suo moto no- tice 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 men- tions registration of vehicles and permits regis- tration 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 viola- tive of Article 21 of the Constitution in as much as it extends time for registration of vehicles be- yond 31.03.2020 and must be accordingly read down. Any extension of time in introducing the new norms which is not absolutely necessary ad- versely impacts the health of the citizens and is, therefore, violative of Article 21 of the Constitu- tion of India. This Rule goes against the spirit of all the orders passed earlier by this Court. In the month of March, 2017 we were dealing with a situation when BS-VI norms were to be made ef-

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fective throughout the country with effect from 01.04.2020 and this Court had directed that non-BS-IV compliant vehicles shall not be regis- tered 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, can- not 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 introduc- tion 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 in- volved. 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 intro- duced EuroIV fuel in the year 2009 and EuroVI standards in 2015. We are already many years behind them. We cannot afford to fall back fur- ther 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

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to the norms 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 Govern- ment 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 autorickshaw/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 or-

der as to costs."

2. Counsel for the petitioner is not in a position to dispute the

same.

3. In view of the submissions made, the writ petition filed by

the petitioner is disposed of in terms of the judgment of Balaji

Automobiles Vs. State of Rajasthan & Ors. (supra).

The stay application also stands dismissed.

(DR.NUPUR BHATI),J 52-Sanjay/-

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