(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgement and order dated 14.10.2004 passed by the learned Single Judge of this Court in Special Civil Application No.14643 of 2004 and allied matters, whereby the learned Single Judge had set aside the Circular dated 9.8.2002 issued by the Government and other directions were issued.
2. We have heard Mr.Devnani, learned AGP for the Appellants and Ms.Sachi Mathur for Mr.Jigar Raval, learned Counsel for the respondent – original petitioner.
3. The learned Counsel appearing for both the sides have brought to our notice that the judgement was delivered by the learned Single Judge in the group of matters against which various Letters Patent Appeals were preferred, including Letters Patent Appeal No.1649 of 2007 and allied matters with the present LPA. The other LPAs, being LPA No.1649 of 2007 and the said group had come up for hearing before the Division Bench of this Court (Coram: S. J. Mukhopadhaya, C.J. and Akil Kureshi, J.) and the same came to be disposed of vide judgement dated 14.5.2010, whereby the LPAs were allowed by setting aside the judgement of the learned Single Judge and the circular of the Government was maintained, but with the clarification as observed by the Division Bench.
4. The learned Counsel appearing for both the sides pray that similar order may be passed as was passed by the Division Bench in LPA No.1649 of 2007 and allied matters, since the judgement of the learned Single Judge was common.
5. It does appear that the judgement of the learned Single Judge was common and the main Special Civil Application in the said group was Special Civil Application No.11643 of 2004, in which the present appeal has been preferred. However, it appears that the present LPA might not have been listed before the Division Bench on that day and, therefore, it can be said that the present LPA is a left out matter of the group of LPA No.1649 of 2007 and allied matters. Since the learned Counsel appearing for both the sides are on agreement that the issue involved in the present appeal is covered by the judgement of the Division Bench of this Court in the cognate appeals, no further discussion would be required. We may only record that in the order dated 14.5.2010 passed by the learned Division Bench of this Court in LPA No.1649 of 2007, it was observed, thus:-
1. These appeals arise out of a judgement and order dated 14.10.2004 passed by the Learned Single Judge in Special Civil Application No.11643/2010 and connected petitions. By the said judgment, Learned Single Judge was pleased to quash and set aside a circular dated 9.8.2002 issued by the Government of Gujarat. Learned Judge also declared that if any vehicle is carrying gross laden weight as per the certificate of registration, the respondents shall not take any penal action with respect to such vehicles. Prayer for refund of the penalty already paid was however, not granted.
2. Brief facts may be noted as narrated in Letters Patent Appeal No. 6194/2004 corresponding to Letters Patent Appeal No.1725/2007.
2.1 The petitioner owns and operates Transport Motor Vehicles which are registered in the State of Haryana. Two heavy vehicles bearing registration no. HR38F5703 and HR631803 are registered by the Registering Authority in the State of Haryana with approved Gross Vehicle Weight(“GVW” for short) of 35200 and 44000 Kgms respectively.
2.2 It is the case of the petitioners that though the R.C. book issued by the authorities of State of Haryana record GVW of the vehicles in question of 35200 and 44000 kgms respectively, RTO authorities in the State of Gujarat by disregarding such registration, levied penalty from the petitioner for overloading the vehicles, even though the vehicles do not carry GVW in excess of 35200 and 44000 kgms as the case may be.
2.3 It is the stand of the State Authority that considering the type of vehicles, it cannot carry GVW of 35200 and 44000 kgms respectively. Stand is based on a circular issued by the Joint Director of Transport, State of Gujarat dated 9.8.2002 which provides interalia that the authorities should not assign more GVW than the gross carrying weight of the tractor(horse or price mover) and if any semi articulated vehicle or trucktrailer combination is found plying on the road carrying greater weight than assigned by the manufacturer, then the difference thereof should be treated as overloading and compounding fee should be recovered. To this circular we would refer to at some length later.
2.4 Apparently, it is the case of the petitioner that the said circular dated 9.8.2002 of the State Government is in conflict with the notification dated 18.10.1996 under rule 95 of Central Motor Vehicles Rules 1989, which prescribes maximum GVW and maximum safe axle weight of each axle of of such vehicle having regard to the size, nature and number of tyres and maximum weight permitted to be carried by the tyres. This notification of Government of India shall be referred in later portion of the judgment. Suffice it to note at this stage that the main thrust of the argument of the original petitioners is that circular of State of Gujarat dated 9.8.2002 is in direct conflict with Government of India prescription of maximum GVW and maximum safe axle weight of individual vehicles specified in notification dated 18.10.1996.
2.5 An affidavit in reply dated 22.6.2004 was filed in the said petition by one K.D. Joshi, Assistant Director of Transport, Ahmedabad. In the reply, it is stated interalia that the Registering Authority is bound to consider different aspects such as maximum axle weight of the vehicle and maximum gross laden weight thereof before granting certificate of registration under Section 58 of the Motor Vehicles Act, 1988(“the MV Act” for short). It is further stated that :
“According to the design of the axel, the Gross Vehicle capacity is mentioned for a particular horse, as per Gross Vehicle Weight capacity, the semitrailer is selected to suit the horse. The reason is being that , the load carrying capacity of the trailer, which matches with the pulling capacity of the tractor. If the load is beyond the carrying capacity of the tractor, then the vehicle instead of moving the in the forward motion would be lifted in upward direction, which will make the stearing wheel absolutely free, which would ultimately lead to the driver losing the control and command of the vehicle. The said situation is called torque reaction, which is a dangerous movement of the vehicle, which could be hazardous and lead to a great threat to the other vehicles plying on the road. It is also submitted that, the movement of such vehicle is highly and adversely affected. Therefore, under such circumstances, when such vehicle poses threat to public safety, the same is required to be checked and restrained.”
In the affidavit, it is further stated that notification of Government of India dated 18.10.1996 specifies maximum permissible GVW and maximum safe axle weight for different makes and models of transport vehicles. However, certain Registering Authorities are not assigning GVW in accordance with such notification. It is further pointed out that as per the said notification, maximum GVW and maximum safe axle weight would be the lowest amongst three different sources mentioned in the notification. It is further stated that the National Highway and State High way are constructed taking into account load capacity of different vehicles which are to ply on such roads. Overloaded vehicles cause serious wear and tear to the roads and also cause higher level of pollution because of incapacity of engines to pull the prescribed weight. There is also a threat to the public safety since overloaded vehicles have reduced breaking efficiency which increases the threat of accident.
3. Learned Single Judge after considering the various provisions contained in the Motor Vehicles Act and Rules made therein and several decisions of the Apex Court, came to the conclusion that the State Government would not be justified in issuing directions contrary to the directions issued by the Central Government. Learned Judge was of the opinion that the circular of State of Gujarat was in conflict with the notification of Government of India. Learned Judge put great emphasis on the Registration Certificate granted to such vehicles in other State and observed that revision of weights on account of change in the tyres and alteration of the vehicle is not permissible. In view of registration certificate granted, the only course open for the respondents is to initiate proceedings for cancellation of such registration certificates. However, by issuing a Circular, State Government cannot levy fine on the owners of the vehicles. It was further observed that the notification issued by the Government of India dated 18.10.1996 permits modification in the vehicles and notification issued under Subsection(3) of Section 58 of the Motor Vehicles Act by the Central Government is binding on the State Government. In short, learned Judge put great emphasis on the Registration Certificate issued by RTO authorities which would be apparent from the following observations :
“11.15 I do not find any substance in the contention raised by Mr. Oza that overloaded vehicles not only cause more wear and tear on the road, but also cause more vehicular pollution and such vehicles are prone to accident. In my opinion, this aspect is to be considered at the time of issuance of registration certificate. While issuing the certificate the concerned authority under the Act is required to look into all these aspects and if he is satisfied, then only such registration certificate can be issued. Once a competent authority has issued a valid registration certificate, and if the vehicle is carrying gross weight in accordance with the certificate, then it is not open for the respondent to raise such contentions.”
4. We have heard learned Advocate General for the State and advocates appearing for the respondents.
5. The main contention of the State was that the circular of the State Government dated 9.8.2002 is in no way conflicting with the notification of Government of India dated 18.10.1996. State circular only clarifies and directs the respondent authorities not to register vehicles by accepting GVW or safe axle weight in excess of what is specified by the manufactures.
5.1 It was contended that learned Single Judge committed a serious error in holding that circular issued by the State Government was without authority or that the same was contrary to the notification of Government of India.
5.2 It was contended that Learned Single Judge committed an error in treating the Registration Certificate as supreme for all purposes ignoring other modes of specifications of GVW and safe axle weight.
6. On behalf of the respondents, it was mainly contended that the owners of the motor vehicles had added extra tyres and axle in some of the vehicles. For making such improvement, they had followed the due procedure, got their vehicles registered with competent registering authorities with specified GVW and safe axle weight. Such registration therefore, cannot be ignored simply because the Registering Authority is from another State. It was contended that Registration Certificate granted by the State of Haryana in the present case would be valid for entire country and the State of Gujarat cannot nullify such registration by issuing a circular.
7. Before the Learned Single Judge number of issues seem to have been raised. Before us, entire controversy got considerably narrowed down. Two main aspects of the matter which emerged through submissions of the Counsel and pleadings on record were:
1) Whether the circular of State of Gujarat dated 9.8.2002 is in conflict with the notification of Government of India dated 18.10.1996.
2) Whether the Registration Certificate of a vehicle specifying maximum GVW or safe axle weight would prevail over other modes of prescription referred to in notification of Government of India dated 18.10.1996.
8. Before adverting to these questions, we may take note of contents of such circular at some length.
8.1 Notification dated 18.10.1996 of Government of India was issued in exercise of powers under subsection(1) of Section 58 of the MV Act and states as follows :
“S.O.728(E) In exercise of powers conferred by sub-section(1) section 58 of the Motor Vehicles Act, 1988(50 of 1988), and in supersession of the notification of the Government of India in ministry of Surface Transport No. 479(E), Dated the 4th July 1996 the Central Government hereby specifies that in relation to the Transport Vehicles(other than Motor Cabs) of various categories detailed in the schedule below, the maximum gross vehicle weight and the maximum safe axle weight of each axle of such vehicles shall, having regard to the size, nature and number of tyres and maximum weight permitted to be carried by the tyres as per rule 95 of the Central Motor Vehicles Rules, 1989 be.
(i) vehicle manufacturers rating of the gross vehicle weight andaxle weight respectively for each make and model as duly certified by the testing agencies as per the provisions of Rule 126 of the Central Motor Vehicles rules, 1989(hereinafter referred to as the Rules") or
(ii) the maximum gross vehicle weight and the maximum safe axle weight of each vehicle respectively as specified in the Schedule with the said notification for the relevant category, or
(iii) the maximum load permitted be carried by the tyres as specified in the Rule 95 of the Rules for the size and number of the tyres fitted on the axle of the relevant make and model, whichever is less."
Provided that the maximum gross vehicle weight in respect of all such transport vehicles, including multiaxle vehicles shall not be more than the sum total of all maximum safe axle weight put together subject to the restrictions, if any, on the maximum gross vehicle weight given in the said schedule. ”
8.2 On the other hand circular dated 9.8.2002 of the State of Gujarat states as under :
“It is observed that the Registering Authorities in th State have not been following a uniform policy in the matter of assignment of gross vehicle weight (GVW) of articulated vehicles and truck trailer combinations. The following clarifications are, made therefore, for guidance.
Subsection(1) of Section 58 of the Motor Vehicles Act, 1988 empowers the Central Government in fix maximum gross vehicle weight and maximum axle weight for each make and model of a transport vehicle. Subsection(3) of section 58 prohibits the Registering Authority to enter any weight different from the weights fixed by the Central Government. Subsection(4) of Section 58 allows revision of weights on account of change in the tyres and alternation the vehicle.
The Central Government vide Ministry of Surface Transport Notification No. 728(E) dated 18.10.1996 as amended by Notification No. S.O. 517(E) dated 26.5.2000 has specified maximum gross vehicle weight and maximum safe axle weight for different make and model of transport vehicles. Copies of the said notifications have already been forwarded to you vide this office letter dated 3.10.97 and 16.8.2000 respectively. In these notifications tow restrictions are laid down. Firstly the gross vehicle weight should not exceed the sum total of axle wight. Secondly, the maximum gross vehicle weight is restricted to 44 matric tonne and 49 matric tone as the case may be.
It is noticed that some of the registering authorities do not assign the gross vehicle weight to the tractortrailer as per the Govt. of India Ministry of Surface Transport Notification dated 18.10.1996 as amended by Notification dated 26.5.2000. This is because some dealers in the sale certificates do not correctly show the gross vehicle weight of such vehicles taking into consideration the Maximum Possible Gross Carrying Weight of the tractor coupled with suitable trailer. The Maximum Permissible Gross Weight or of some of the tractors according to the manufactures fating is given in the table below ”
"It is, therefore, directed not to assign more gross vehicle weight than the gross carrying capacity of this tractor (horse or price mover). If any semiarticulated vehicle or trucktrailer combination is found plying on road carrying goods with gross vehicle weight more than the gross carrying capacity assigned by the manufacturer then the difference thereof should be treated as overloading and compounding fee should be recovered."
9. Upon perusal of the notification of Government of India dated 18.10.1996, it becomes clear that maximum GVW and maximum safe axle weight of a vehicle would be specified in three different sources namely :
1) Vehicle manufacturing rating for each make and model is certified by the testing agencies
2) As specified in the schedule to the said circular
3) Maximum load permitted to be carried as specified in rule 95 of the Central Motor Vehicles Rules or the size and number of tyres fitted on the axle(s) of the relevant make and model.
Circular clearly provides that maximum GVW and maximum safe axle weight of each axle of such vehicles shall be minimum of the above three categories.
10. With this background in mind, if we peruse the circular of State of Gujarat dated 9.8.2002, it specifies that circular only clarifies what is already stated in the notification of Government of India. It is stated that some of the Registering Authorities do not assign GVW to the tractor trailer as per the notification of Government of India dated 18.10.1996. This is so because some dealer in the sale certificate do not correctly show the gross vehicle rate of such vehicles taking into consideration maximum gross carrying weight of the tractor coupled with suitable trailer. Circular therefore, provides that GVW higher than gross carrying capacity of a tractor should not be assigned and if any semiarticulated vehicle or trucktrailer combination is found plying on the road carrying weight higher than the assigned capacity assigned by the manufacturer, then it should be treated as overloading and compounding fee should be recovered.
11. In our opinion, there is nothing in the circular of State of Gujarat which runs counter to the notification of Government of India. In fact, the State circular only furthers the object of notification of Government of India and substantially incorporates the terms thereof . To reiterate notification of Government of India provides that out of three modes of prescription of maximum GVW and safe axle weight, the lowest prescription should be adopted. Circular of State of Gujarat only clarifies that in some cases, dealers in the sale certificate do not correctly specify the GVW of such vehicles taking into consideration the maximum possible gross carrying weight of the tractor. Situation has been further clarified by the appellants in their additional affidavit filed in May 2010 in the Letters Patent Appeal. Giving different examples it is clarified that the State Authorities are not challenging the Registration Certificate granted by other State but are only following the standards laid down by the Central Government provided under Section 58 of the MV Act and only if any vehicle is found carrying more GVW than the standard prescribed by the Central Government, excess load is taken into consideration for levying fine.
12. We do not find that stand of the State Government is either illegal or impermissible. Road safety, maintenance of high way and other roads and prevention of accidents are issues of great importance. If the transport vehicles are permitted to carry greater load than its capacity or the prescribed maximum limit, same can be hazardous for traffic safety and would also be damaging the roads built and maintained by or under the Government Authorities.
13. When the notification of Government of India clearly provides that maximum GVW and safe axle weight would be minimum of all the three sources of prescription mentioned in the notification dated 18.10.1996, it would not be permissible for the motor vehicle owners to insist that only the certificate of registration should prevail over all other modes. Accepting such a contention would amount to nullifying the notification of Government of India dated 18.10.1996. Said notification is not under challenge.
14. In short, we are clearly of the opinion that that circular of State of Gujarat dated 9.8.2002 is not in conflict with but in consonance with the notification of Government of India dated 18.10.1996. It is only in the form of clarification and provides for a guideline for the State Transport Authority to follow in all cases. Circular does not seek to either cancel or nullify the effect of registration of a motor vehicle. We do not find that through circular dated 9.8.2002, the State Authorities seek to cancel the registration of motor vehicle granted by the authorities of another State. Circular in no way seeks to tinker with such registration nor the effect of registration is whittle down. Circular only aims at clarifying the position as per the notification of Government of India dated 18.10.1996.
15. In the result, we are of the opinion that Learned Single Judge committed an error in striking down the circular dated 9.8.2002 of State of Gujarat. Decision of Learned Single Judge is therefore, reversed.
16. All petitions stand dismissed. Letters Patent Appeals stand allowed. All appeals with connected civil applications are disposed of accordingly.”
1. The same view deserves to be taken in the present matter as observed in the said LPA and the same direction deserves to be issued as issued by the Division Bench in the aforesaid LPA at paragraphs 14 and 15.
2. Hence, the following order:-
(a) In short, we are clearly of the opinion that that circular of State of Gujarat dated 9.8.2002 is not in conflict with but in consonance with the notification of Government of India dated 18.10.1996. It is only in the form of clarification and provides for a guideline for the State Transport Authority to follow in all cases. Circular does not seek to either cancel or nullify the effect of registration of a motor vehicle. We do not find that through circular dated 9.8.2002, the State Authorities seek to cancel the registration of motor vehicle granted by the authorities of another State. Circular in no way seeks to tinker with such registration, nor the effect of registration is whittled down. Circular only aims at clarifying the position as per the notification of Government of India dated 18.10.1996.
(b) In the result, we are of the opinion that Learned Single Judge committed an error in striking down the circular dated 9.8.2002 of State of Gujarat. Decision of Learned Single Judge is, therefore, reversed.
3. Accordingly, the present appeal is allowed. The main Special Civil Application shall stand dismissed. There shall be no order as to costs.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) vinod