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2017 DIGILAW 626 (KER)

Muhammed Riyas v. State of Kerala

2017-03-30

P.B.SURESH KUMAR

body2017
JUDGMENT : 1. The issue which this Court is cafled upon to adjudicate in this batch of writ petitions is one and the same. As such, writ petitions are disposed of by this common judgment. The documents referred to herein are the documents in W.P.(C). No. 151 of 2017. 2. Mass Emission Standards to regulate the output of air pollutants from the internal combustion engines of automobiles are set by the Central Pollution Control Board and the same are implemented place by place in the country by the Central Government by amending sob-rule 15(a) of Rule 115 of the Central Motor Vehicles Roles (‘the Rules’) framed under the Motor Vehicles Act; 1988 (‘the Act’). Sub rule 15(a) of Rule 115 provides that Bharat Stage IV Mass Emission Standards (‘BS-IV Standards’) shall come into force in thirteen cities specified therein for four wheeled vehicles manufactured on or after 1.4.2010. Later, by virtue of the subsequent amendments introduced by way of provisos to sub rule 15(a) of Rule 115, BS-IV Standards have been implemented in other Cities/States also for four wheeled vehicles manufactured on or after the respective dates mentioned therein. Ext.PI was the latest amendment to sub rule 15(a) of Rule 115. By virtue of the said amendment, BS-IV Standards have been introduced to a few States including the State of Kerala in respect of four wheeled vehicles manufactured on or after 1.4.2016. A batch of writ petitions were filed before this Court challenging Ext.Pl amendment to sub-rule 15(a) of Rule 115. Interim orders have been granted by this Court in the said writ petitions directing the registering authorities concerned to register the vehicles involved inthe said cases. Later, by Exts.PlO and Pll judgments, the writ petitions were dismissed. Consequently, the petitioners in the writ petitions were deprived of the benefit of the interim orders granted to them. This batch of writ petitions were filed thereafter, seeking directions to the State Government i@ exempt the vehicles involved in Exts.PlO and Pll cases from the requirement of sub-rule 15(a) of Rule 115 of the Rules. It is alleged in the writ petitions that the petitioners are unable to use the vehicles purchased by them investing sizeable amounts ipr any purpose whatsoever on account of Exts.PlO and Pit judgments. It is alleged in the writ petitions that the petitioners are unable to use the vehicles purchased by them investing sizeable amounts ipr any purpose whatsoever on account of Exts.PlO and Pit judgments. Clause (b) of sub-section (3) of Section 110 of the Act was relied on by the petitioners to sustain the relief claimed in the writ petitions. 3. On 09.01.2017, this Court passed an interim order directing the State Government to take a decision on the question as to whether the vehicles referred to in the writ petitions could be exempted from the fifth proviso to sub-rule (15)(a) of Rule 115 of the Roles under clause (b) of sub-section (3) of Section 110 of the Act. 4. On 06.02.2017, when these matters were taken up, the learned Special Government Pleader submitted that the State Government have decided to exempt the vehicles which have secured temporary registrations based on interim orders passed by this Court in the earlier round litigations from the operation of the fifth proviso to sub-rule 15(a) of Rule 115 of the Rules in public interest under clause (b) of sub-section 3 of Section 110 of the Act and sought approval of the Central Government for the same. The intimation given by the State Government to the Advocate General was also made available to the Court. The learned counsel for the petitioners then submitted that there is no need at all for the State Government to obtain the approval of the Central Government for granting exemption to the vehicles, in exercise of the said power. However, since a doubt arose as to whether the approval of the Central Government is required for the State Government to exercise the power under the statutory provision referred to above, this Court passed an interim order directing the registering authorities to register the vehicles of the petitioners which have secured temporary registrations based on the interim orders passed by this Court in the earlier round litigations, which resulted in Exts.PIO and Pll judgments, subject to the outcome of the writ, petitions. 5. On 23.03.2017, when these matters came up for consideration again, the learned counsel for the petitioners pointed out that the vehicles of the petitioners have been registered pursuant to the interim order passed by this Court on 6.2.2017 and called upon this Court to dispose of the writ petitions making the said interim order absolute. 5. On 23.03.2017, when these matters came up for consideration again, the learned counsel for the petitioners pointed out that the vehicles of the petitioners have been registered pursuant to the interim order passed by this Court on 6.2.2017 and called upon this Court to dispose of the writ petitions making the said interim order absolute. The learned Special Government Pleader then pointed out that the decision taken by the State Government to exempt the vehicles involved in these matters was subject to the approval of the Centra! Government and therefore, the question whether the approval of the Central Government is required has to be considered before making the interim order absolute. To a pointed question as to the provision requiring approval of the Central Government for exercise of the power of exemption under clause (b) of sub-section (3) of Section 110, it was clarified by the learned Government Pleader that such a decision was taken by the State Government in the light of the specific provision contained in clause (b) to the effect that exemptions under the said provision are to be granted subject to such conditions as may be prescribed by the Central Government. The learned counsel on either side were, accordingly, heard on the said issue. 6. Chapter VII of the Act deals with construction, equipment and maintenance of motor vehicles. Sub section (1) of Section 110 in the said chapter empowers the Central Government to make rules regulating the construction, equipment and maintenance of motor vehicles with respect to ail or any of the matters specified therein. Clause (g) to sub-section (1) of Section 110 empowers the Central Government to frame rules regulating the emission of smoke, visible vapour, sparks, ashes, grid or oil from the motor vehicles. Rule 115 of the Rules and Ext.Pl amendment made to the same are made by the Central Government in exercise of the said power. Sub-section (3) of Section 110 of the Act reads thus:- “(3) Notwithstanding anything contained in this section,- (a) The Central Government may exempt any class of motor vehicles from the provisions of this Chapter; (b) A State Government may exempt any motor vehicle or any class or description of motor vehicles from the rules made under sub-section (1) subject to such conditions as may be prescribed by the Central Government. It is evident from clause (b) of sub-section (3) of Section 110 of the Act that power is conferred on the State Government under the said provision to exempt any motor vehicle or any class or description of motor vehicles from the rules made under sub-section (1) of Section 110 of the Act subject to such conditions as may be prescribed by the Central Government. The word ‘prescribed’ is defined in section 2(32) of the Act to mean prescribed by rules made under the Act. It is a fact that Rules have not been framed by the Central Government prescribing the manner and conditions subject to which State Governments have to exercise the power of exemption conferred under clause (b) of sub-section (3) of Section 110 of the Act. The question, therefore, is whether the State Government is empowered to exercise the power conferred on it by clause (b) of sub-section (3) of Section 110 of the Act in the absence of any rules made by the Central Government in this behalf. 7. Displaced Persons (Compensation and Rehabilitation) Act, 1954 provided for disposal of properties forming part of the compensation pool referred to in the said statue subject to the rules framed by the Central Government. An issue arose as to whether the authority constituted under the said Act for the disposal of property forming part of the compensation pool is entitled to exercise the power of disposal in the absence of any rules framed by the Central Government. The said issue was answered by the Apex Court in Surinder Singh v. Central Govt. ( (1986)4 SCC 667 ) thus : “Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression “subject to the rules” only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute. The expression “subject to the rules” only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute. In the context of the expression ‘in such manner as may be prescribed’, the Apex Court in Orissa State (Prevention & Control of Pollution) Board v. Orient Paper Mills ( (2003) 10 SCC 421 ) held that once the manner is prescribed under the rules undoubtedly, the power shall be exercised in accordance with the manner prescribed, but absence of rules will not render the Act inoperative and the power conferred by the statute would still be exercisable as provided for under the provision and non-framing of the rules does not in any way curtail the power conferred by the statute. It is also held by the Apex Court in the said case that “in such manner as may be prescribed” would spring Into operation only after such manner is prescribed by framing the rules, Paragraph 20 of the said judgment reads thus:- “20. We feel that so far as the point relating to the meaning of the word “may” used under Section 19 of the Act is concerned, it is not relevant for resolving the controversy we are concerned with. Once the manner is prescribed under the rules undoubtedly, the declaration of the area has to be only in accordance with the manner prescribed but absence of rules will not render the Act inoperative. The power vested under Section 19 of the Act, would still be exercisable as provided under the provision i.e. by declaring an area as air pollution control area by publication of notification in the Official Gazette. Non-framing of rules does not curtail the power of the State Government to declare any area as air pollution control area by means of a notification published in the Official Gazette. The part of the provision “in such manner as may be prescribed” would spring into operation only after such manner is prescribed by framing the rules under Section 54(2) (k) of the Act. The part of the provision “in such manner as may be prescribed” would spring into operation only after such manner is prescribed by framing the rules under Section 54(2) (k) of the Act. This view as indicated earlier, is amply supported by the decision of this Court referred to above in the case of T, Cajee which is a decision by a Constitution Bench of this Court. It has been followed in a subsequent decision of this Court reported in Surinder Singh v. Central Govt The Central Government had not framed rules in respect of disposal of property forming part of the compensation pool as contemplated under the provisions of the relevant Act. It was claimed by one of the parties that the authority constituted under, the Act had no jurisdiction to dispose of urban agricultural property by auction-sale in absence of rules. The contention was repelled with the following observations: (SCC p. 673, para 6) “Where a statute confers powers on art authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression ‘subject to the rules’ only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute. A reference was also made to the decisions of this Court in the cases reported in B.N. Nagarajan v. State of Mysore and Mysore SRTC v. Gopinath Gundachar Char. Reliance was also placed on U.P. SEB v. City Board, Mussoorie.” As noted above, clause (b) of sub-section (3) of Section 110 of the Act does not provide that the power of exemption conferred on the State Government by virtue of the said provision shall be exercised by the State Government only subject to such conditions as may be prescribed by the Central Government. In the circumstances, in the light of the decisions of the Apex Court referred to above, it can be safely concluded that the State Government is entitled to exercise the power conferred under clause (b) of sub-section (3) of Section 110 of the Act and the approval of the Central Government is not required for the same. 8. It is brought to the notice of this Court that in W.A.No.2511 of 2016 and connected cases, a Division Bench of this court has expressed a contrary view as regards the power of the State Government to exempt vehicles under clause (b) of sub-section (3) of Section 110 of the Act. It is observed by the Division Bench in the said case that the power of the State Government under clause (b) of sub-section (3) of Section 110 of the Act can be exercised only subject to the conditions as may be prescribed by the Central Government for granting exemption and since the Central Government has not prescribed any rules enabling the State Government to exempt the provisions contained in sub-rule 15(a) of Rule 115 of the Rules, the State Government cannot exercise that power. Since the State Government have decided to obtain the approval of the Central Government to exempt the vehicles involved in these matters on the very same ground on which the Division Bench expressed the view that the State Government cannot exercise the power of exemption conferred on it under clause (b) of sub-section (3) of Section 110 of the Act, it is necessary to consider the question whether this Court is bound by the said observation/finding rendered by the Division Bench. 9. Writ Appeal No.2511 of 2016 and connected cases were preferred challenging Ext. P10 judgement of this Court. The challenge fn the writ petitions from which Writ Appeal No.2511 of 2016 and connected cases arose was against Ext.Pl amendment made to sub-rule 15(a) of Rule 115 of the Rules. By Ext. P10 judgment, this Court repelled the challenge. The only question arose for consideration in the appeals, therefore, was whether the challenge against Ext.Pl amendment to the Rules is sustainable. By Ext. P10 judgment, this Court repelled the challenge. The only question arose for consideration in the appeals, therefore, was whether the challenge against Ext.Pl amendment to the Rules is sustainable. The question whether the State Government can exempt any vehicle or class of vehicles from the operation of sub-rule 15(a) of Rule 115 of the Rules did not arise for consideration at all in Writ Appeal No.2511 of 2016 and connected cases, for, the said question would arise only when Ext P10 judgment is confirmed. In other words, the observations aforesaid have been made by the Division Bench am an issue which was not necessary to be resolved in the matters before the Division Bench. The question is whether the observations made by the Division Bench on an issue which was not necessary for the adjudication of the matters before it would bind this Court. The principle on the point has been succinctly stated in “Salmond on Jurisprudence” (Twelth Edition). The relevant passage reads thus : “In the course of his judgment, however, a judge may let fall various observations not precisely relevant to the issue before him. He may for instance illustrate his general reasoning by reference to hypothetical situations and the law which he considers to apply to them. Here of course, since the issue is not one that arises between the parties, full argument by counsel will be lacking, so that it would be unwise to accord the observation equal weight with that given to his actual decision. Or again, having decided the case on one point, the judge may feel it unnecessary to pronounce on the other points raised by the parties, but he may nevertheless want to indicate how he would have decided these points if necessary. Here again we are not given the judge’s final decision on a live issue, so that once more it would be unwise to endow it with as much authority as the actual decision. These observations by the way, obiter dicta, are without binding authority, but are nonetheless important: not only do they help to rationalise the law but they serve to suggest solutions to problems not yet decided by the courts.......” The aforesaid principle has been elaborated by the Apex court in Arun Kumar Aggarwal v. State of Madhya Pradesh and others ( (2014)13 SCC 707 ) thus: “24. At this stage, it is pertinent to consider the nature and scope of a mere observation or obiter dictum in the order of the Court. The expression “obiter dicta” or “dicta” has been discussed in American Jurisprudence 2d, Vol. 20, at p. 437 as thus: “74. Dicta Ordinarily, a court will decide only the questions necessary for determining the particular case presented. But once a court acquires jurisdiction, all material questions are open for its decision; it may properly decide all questions so involved, even though it is not absolutely essential to the result that all should be decided. It may, for instance, determine the question of the constitutionality of a statute, although it is not absolutely necessary to the disposition of the case, if the issue of constitutionality is involved in the suit and its settlement is of public importance. An expression in an opinion which is not necessary to support the decision reached by the court is dictum or obiter dictum. ‘Dictum’ or ‘obiter dictum’ is distinguished from the holding of the court in that the so-called ‘law of the case’ does not extend to mere dicta, and mere dicta are not binding under the doctrine of stare decisis. As applied to a particular opinion, the question of whether or not a certain part thereof is or is not a mere dictum is sometimes a matter of argument. And while the terms ‘dictum’ and “obiter dictum’ are generally used synonymously with regard to expressions in an opinion which are not necessary to support the decision, in connection with the doctrine of stare decisis, a distinction has been drawn between mere obiter and ‘judicial dicta’, the latter being an expression of opinion on a point deliberately passed upon by the court.” (emphasis supplied) Further at pp. 525 and 526, the effect of dictum has been discussed: “190. Decision on legal point; effect of dictum ... In applying the doctrine of stare decisis, a distinction is made between a holding and a dictum. Generally stare decisis does not attach to such parts of an opinion of a court which are mere dicta. 525 and 526, the effect of dictum has been discussed: “190. Decision on legal point; effect of dictum ... In applying the doctrine of stare decisis, a distinction is made between a holding and a dictum. Generally stare decisis does not attach to such parts of an opinion of a court which are mere dicta. The reason for distinguishing a dictum from a holding has been said to be that a question actually before the court and decided by it is investigated with care and considered in its full extent, whereas other principles, although considered in their relation to the case decided, are seldom completely investigated as to their possible bearing on other cases. Nevertheless courts have sometimes given dicta the same effect as holdings, particularly where ‘judicial dicta’ as distinguished from ‘obiter dicta’ are involved.” 25. According to P. Ramanatha Aiyar’s Advanced Law Lexicon (3rd Edn., 2005), the expression “observation” means a “view, reflection; remark; statement; observed truth or facts; remarks in speech or writing in reference to something observed”. 26, Wharton’s Law Lexicon (14th Edn., 1993) defines the term “obiter dictum” as an opinion not necessary to a Judgment; an observation as to the law made by a Judge in the course of a case, but not necessary to its decision, and therefore, of no binding effect; often called as obiter dictum, ‘a remark by the way’. 27. Black’s Law Dictionary, (9th Edn., 2009) defines the term “obiter dictum” as: “Obiter dictum.-A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). - Often shortened to dictum or, less commonly, obiter.... ‘Strictly speaking an “obiter dictum” is a remark made or opinion expressed by a judge, in his decision upon a cause, “by the way”- that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the Judge or court merely by way of illustration, argument, analogy, or suggestion.... In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as “dicta”, or “obiter dicta”, these two terms being used interchangeably.’“ 28. Words and Phrases, Permanent Edn., Vol. In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as “dicta”, or “obiter dicta”, these two terms being used interchangeably.’“ 28. Words and Phrases, Permanent Edn., Vol. 29 defines the expression “obiter dicta” or “dicta” thus: “Dicta are opinions of a Judge which do not embody the resolution or determination of the court, and made without argument or full consideration of the point, are not the professed deliberate determinations of the Judge himself; obiter dicta are opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects; it is mere observation by a Judge on a legal question suggested by the case before him, but not arising in such a manner as to require decision by him; ‘obiter dictum’ is made as argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in the particular issue, not binding as a precedent, but entitled to receive the respect due to the opinion of the Judge who utters them; discussion in an opinion of principles of law which are not pertinent, relevant, or essential to determination of issues before court is “obiter dictum’.” 29. The concept of “dicta” has also been considered in Corpus Juris Secundum, Vol. 21, at pp. 309-12 as thus: “190. Dicta a. In general A dictum is an opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication; an opinion expressed by a Judge on a point not necessarily arising in the case; a statement or holding in an opinion not responsive to any issue and not necessary to the decision of the case; an opinion expressed on a point in which the judicial mind is not directed to the precise question necessary to be determined to fix the rights of the parties; or an opinion of a Judge which does not embody the resolution or determination of the court, and made without argument, or full consideration of the point, not the professed deliberate determination of the Judge himself. The term ‘dictum’ is generally used as an abbreviation of ‘obiter dictum’ which means a remark or opinion uttered by the way. The term ‘dictum’ is generally used as an abbreviation of ‘obiter dictum’ which means a remark or opinion uttered by the way. Such an expression or opinion, as a general rule, is not binding as authority or precedent within the stare decisis rule, even on courts inferior to the court from which such expression emanated, no matter how often it may be repeated. This general rule is particularly applicable where there are prior decisions to the contrary of the statement regarded as dictum; where the statement is declared, on rehearing, to be dictum; where the dictum is on a question which the court expressly states that it does not decide; or where it is contrary to statute and would produce an inequitable result. It has also been held that a dictum is not the ‘law of the case nor res judicata.” 30. The concept of “diets has been discussed in Halsbury’s Laws of England, 4th Edn. (Reissue), Vol. 26, Para 574 as thus: “574. Dicta,- Sta’ merits which are not necessary to the decision, which go beyond the occasion and lay down a rule that it is unnecessary for the purpose in hand are generally termed ‘dicta’. They have no binding authority on another court, although they may have some persuasive efficacy. Mere passing remarks of a Judge are known as ‘obiter dicta’, whilst considered enunciations of the Judge’s opinion on a point not arising for decision, and so not part of the ratio decidendi, have been termed ‘Judicial dicta’. A third type of dictum may consist in a statement by a Judge as to what has been done in other cases which have not been reported. ... Practice notes, being directions given without argument, do not have binding judicial effect. Interlocutory observations by members of a court during argument, while of persuasive weight, are not judicial pronouncements and do not decide anything.” 31. In MCD v. Gurnam Kaur (SCC p. Ill, para 12) and Karnataka SRTC v. Mahadeva Shetty (See Karnataka SRTC v, Mahadeva Shetty.), this Court has observed that: “12. ... Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.” 32. In State of Haryana v. Ranbir, this Court has discussed the concept of the “obiter dictum” thus: (SCC pp. 171-72, para 13) “13. ... ... Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.” 32. In State of Haryana v. Ranbir, this Court has discussed the concept of the “obiter dictum” thus: (SCC pp. 171-72, para 13) “13. ... A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla. It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative.” 33. In Girnar Traders v. State of Maharashtra this Court has held: (SCC p. 586, para 53) “53. ... Thus, observations of the court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the court, is not of much avail to the respondents.” 34, in view of the above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of-the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment.” In the light of the aforesaid authorities, I am of the view that the observations made by the Division Bench in Writ Appeal No.2511 of 2016 and connected cases are oniy obiter dicta and the same do not preclude this Court from upholding the decision taken by the Government to exempt-the vehicles referred to in these cases from the operation of sub-rule 15(a) of Rule 115 of the Rules. In the result, the writ petitions are allowed and the interim orders passed in these matters are made absolute.