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2018 DIGILAW 275 (JK)

Western Bus Service Ltd. v. Union of India

2018-05-07

M.K.HANJURA

body2018
JUDGMENT : 1. Aggrieved by the Notification – SRO 50 dated 16th of February, 2016, issued by the Government of J&K, in terms of which, all the passenger vehicles, run, managed and operated by the petitioners under the Motor Transport Service Licenses, have been directed to equip their vehicles with ‘Speed Governors’ conforming to the Standard AIS : 018/2001, the petitioners have filed this petition on the grounds, inter alia, that the amendment carried out in the Central Motor Vehicles Rules, 1989 (for short Rules of 1989), vide Notification No. G.S.R. 290 (E) dated 15-04-2015 and in terms of sub rule (2) of the said Notification, the State Governments have been empowered to issue appropriate Notifications and it has been left at the discretion of the State Government to apply the requirement of Rule 118 of the Rules of 1989, which reads as under : “118. Speed governor:- (1) Every transport vehicle notified by the Central Government under sub section (4) 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 state or at the dealership stage, with a speed governor (speed limiting device or speed limiting function) having maximum pre-set speed of 80 kilometer per hour conforming to the Standard A IS 018/2011 as amended from 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 (MI Category) and not exceeding 3500 kilogram gross vehicle weight); (iv) Fire tenderer ; (v) 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 vehicles, 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 manufacture, 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 A IS 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 operator of such vehicle (sic) April, 2016 with a speed limiting function) having maximum pre-set speed of 80 kilometer 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 from time to time. Provided that the categories of transport vehicles carrying hazardous goods and those transport vehicles and 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 kilometer per hour or such other lower speed limit as may be specified by the State Government, conforming to the Standard AIS: 018/2001, as amended from time to time.” 2. The petitioners have further stated that the amendment has given a liberty to the State Governments to identify the vehicles that need to be fitted with the ‘Speed Governors’. It is further stated that such a power delegated to the State Governments is patently arbitrary as there is nothing to state as to which kind of vehicles have to be equipped with the ‘Speed Governors’ in the rule 118 of the Rules of 1989. The petitioners have further stated that sub rule (2) of Rule 118, conferring unbridled and unchannelized power to the State Governments, is violative of Article 14 of the Constitution of India as it suffers from the vice of arbitrariness. The petitioners have further stated that they have no grievance in so far as new vehicles are concerned, as the same are already fitted with such devices, which monitor and reduce the speed. However, they are peeved about the amendment made in the Rules of 1989, directing fitting of the ‘Speed Governors’ to the vehicles, which have been registered prior to 01-10-2015. The petitioners have further stated that as a policy decision, the Central Government empowered the State Governments to issue appropriate Notification, keeping in view the requirement of each State, with regard to the transport vehicles, which is not uniform and there are States where majority of the areas are hilly and the condition of the roads is such that it is impossible for the drivers of the vehicles to increase the speed and ply them at a speed of more than 30/40 kmh. In this view of the matter, installation of the Speed Controlling Devices, which costs between Rs.15000/- to Rs. 20,000/- would be a cumbersome burden on the owners of the vehicles besides being futile. In this view of the matter, installation of the Speed Controlling Devices, which costs between Rs.15000/- to Rs. 20,000/- would be a cumbersome burden on the owners of the vehicles besides being futile. The petitioners have further stated that in the State of J&K, particularly in the valley of Kashmir, hardly has any accident been caused by a speeding vehicle as the roads are not spacious and are not wide enough to allow the driver to drive the vehicle beyond the speed of 60 kmh. The petitioners have further stated that the authorities ought to have worked out a plan and obtained technical opinion on the over all effect, of the installation of the ‘Speed Governors’. The State Government, without considering the pros and cons and without applying its mind to all these aspects, has, in an arbitrary manner, issued the impugned Notification. The petitioners have further stated that this move of the State Government is impeding the transport industry from seeking Fitness Certificates from the concerned quarters, thus, there is every apprehension that the transport industry would come to a halt. The petitioners have further stated that having regard to the pathetic plight of the transport industry, which is in a very bad shape, given the state of affairs in the valley of Kashmir, they are not in a position to incur an extra expenditure to the tune of Rs. 20,000/- for installation of ‘Speed Control Device’ and that too from a retrospective date. The petitioners have further stated that in terms of the existing position of the vehicles, the vehicles completing 25 years of service are to be phased out, therefore, there is no logic in directing installation of the said device on the vehicles which are to be phased out within next few months. It is further stated that the impugned Notification has left the petitioners with no choice but to approach the Hon’ble Court by the medium of this writ petition seeking a restraint to be placed on the respondents from applying the Notification impugned to the vehicles registered prior to 01-10-2015. 3. It is further stated that the impugned Notification has left the petitioners with no choice but to approach the Hon’ble Court by the medium of this writ petition seeking a restraint to be placed on the respondents from applying the Notification impugned to the vehicles registered prior to 01-10-2015. 3. In the objections filed by the official respondents, in addition to challenging the maintainability of the writ petition, it is stated that in pursuance to the Notification bearing No. 290-(E) dated 15-04-2015, issued by the Government of India, with regard to the installation of ‘Speed Governors’ in all transport vehicles registered prior to 01-10-2015, the State Government also issued a Notification vide SRO 50 dated 16-02-2016, indicating that the vehicles registered in the State of J&K prior to 01-10-2015 should be fitted with ‘Speed Governors’. It is pleaded in the objections that the figures given by the petitioners for phasing out of the condemned vehicles in the coming years, is exaggerated and totally wrong and baseless aimed at misleading the Hon’ble Court. It is further stated that the State Government is committed to provide best transport services to the people and they are in the process of formulating policy to provide the vehicles, which are modern, comfortable, eco-friendly and fuel efficient to the people to change the entire scenario of the public transport in the State and in this regard the recommendations of the stake holders are in active consideration of the Government. Respondents have further stated that the date of the compliance of the impugned Notification was extended by the Government by three months to provide a breathing time to the transport companies. The respondents have further stated that the issue of installation of ‘Speed Governors’ was discussed threadbare in a meeting held on 06-04-2016, attended by the MD, J&K SRTC, General Manager, J&K SRTC, Transport Commissioner and the Secretary to Government, Transport Department. The transport associations were also subsequently called and the issue of effective implementation of the ‘Speed Governors’ was discussed. It is also contended that the cost of each Speed Governor is in the range of Rs.3000 to Rs.12000 and the petitioners have projected an exaggerated account of events. The transport associations were also subsequently called and the issue of effective implementation of the ‘Speed Governors’ was discussed. It is also contended that the cost of each Speed Governor is in the range of Rs.3000 to Rs.12000 and the petitioners have projected an exaggerated account of events. The respondents have further stated that there being a genuine need for regulating the transport system in the State in order to minimize the intensity of the road accidents resulting in loss of precious lives due to over speeding, the impugned Notification was issued. It is further stated that there are guidelines issued by the Ministry of Road Transport & Highways as also by the Hon’ble Supreme Court for implementation of Notification for installation of ‘Speed Governors’, and the same have been circulated to the respondents, who are duty bound to effectively monitor and ensure its strict compliance. In the end, the respondents have prayed for the dismissal of the writ petition. 4. Heard and considered. 5. The judicial review is a developing subject. Its scope varies from case to case. It is considered to be a basic feature of the Constitution. The apex Court has, in a catena of judgments, defined the outline of the sovereign power, as vested in the three pillars of the Government, that are the Legislature, the Executive & the Judiciary. In Kesavananda Bharti’s case, the apex Court explained the term ‘basic feature’. The Court said that it is supposed to be the sum total of the core of our Constitution. The apex Court, wile interpreting the meaning of ‘judicial review’, said that the power of the ‘judicial review’ is, however, confined not merely to deciding whether, in making the impugned laws, the Central or State Legislatures have acted within the four corners of the legislative lists earmarked for them ; the Courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution. It further said that as long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened…………… Review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of provisions of statutes. If the provisions of the Statute are found to be violative of any Article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions. 6. The law also provides that the correctness of the reasons that prompted the Government to take a decision and take one course of action instead of the other, is not a matter of concern in the judicial review and the Court is not the appropriate forum for conducting such investigations. The scope of the judicial review has to be confined to find out whether the Government decision was against the statutory provisions or violative of the fundamental rights of the citizens of the State. 7. In the case of Federation of Railway Officers Association and others versus Union of India, reported in AIR 2003 SC 1344 , the apex Court said that the wholesome rule in regard to judicial interference in an administrative decision is that if the Government takes into consideration all the relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, Courts would keep off the same. 8. In the case of BALCO Employees Union (Regd.) versus Union of India and others, reported in MANU/SC/0779/2001, the apex Court said that it is evident that it is neither within the domain of the Court nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. 9. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. 9. The object of the policy evolved by the Government under and in terms of SRO 50 dated 16th of February, 2016, is laudable. Every now and then we see people dying on the roads due to over speeding of the vehicles. The mad rage and race in which the operators ply their vehicles scratch many a people to death on the roads leaving their kith and kin in a lurch. Speed Governors will at least carry checks and balances in maintaining the speed of the vehicles and will work as a remedy to minimize the intensity of the road accidents. By their installation the vehicles in which these have to be fitted on the face of the SRO cited above cannot ply beyond a particular speed limit. Over speeding of vehicles resulting in a numberless loss to human lives has precipitated the worst cries. The promulgation of the SRO is aimed at saving precious human lives from reckless driving. The SRO taken under the safety value of the public interest cannot be tampered with. The Courts shall have to be loath in interfering in a policy decision taken by the Government unless it smacks of arbitrariness or to put it in other words that it is irrational and not circumspect or is wayward, aberrant, malicious and capricious offending the basic requirement of Article 14 of the Constitution. The Apex Court has in a chain of judgments repeated and reiterated this principle. It is replete with such platitudes that the Court cannot sit in judgment over the policy decisions of the Government. It is beyond the jurisdiction of the Court to advise the Government about the policy decisions it may take. The Courts cannot embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether the one better than that could be evolved. 10. It is beyond the jurisdiction of the Court to advise the Government about the policy decisions it may take. The Courts cannot embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether the one better than that could be evolved. 10. Looking at the instant petition from yet another angle, in the case of M.C. Mehta versus Union of India & others (1997) 8 SCC 770 , the Supreme Court directed as under : “(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, 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.” 11. Subsequently, in the case of Suraksha Foundation versus Union of India & others, Writ Petition (Civil) No. 793 of 2015, in which the State of J&K has been impleaded as a party respondent and figures at S.No.18, the apex Court by an order dated 01-12-2015 directed the State Governments, Union Territories as also the Union of India to submit the reports with regard to the implementation of the judgment of the Court delivered in the case of M.C. Mehta versus Union of India and others. 12. Again in the case of Dr. S.Rajaseekaran (II) versus Union of India and others, Writ Petition (Civil) No. 295 of 2012, the apex Court, by an order dated 30-11-2017, directed as under : S.No. Issue contained in Note of Amicus Curie Views by Ministry of Road Transport & Highways Orders prayed by the AC xvii. Speed Governors: It is prayed that State Governments be directed to take steps to ensure that approved Speed Governors are fitted in the existing transport vehicles and given Unique Identification Number. These numbers should be uploaded in the VAHAN Database along with the details of the vehicle. Speed Governors: It is prayed that State Governments be directed to take steps to ensure that approved Speed Governors are fitted in the existing transport vehicles and given Unique Identification Number. These numbers should be uploaded in the VAHAN Database along with the details of the vehicle. The instructions issued by the Committee on Road Safety in this regard may kindly be directed to be strictly followed. Ministry of Road Transport & Highways has already issued guidelines for fitment of approved Speed Limited Device (speed governors) on transport vehicles. The suggestion to upload the Unique Identification Number of the Speed Governor in the VAHAN database is acceptable. Order proposed: State Governments be directed to take steps to ensure that approved speed Governors are fitted in the existing transport vehicles and given unique Identification Number. These numbers should be uploaded in the VAHAN Database along with the details of the vehicle. The instructions issued by Committee on Road Safety in this regard may kindly be directed to be strictly followed.” 13. The Court further directed that as far as the Speed Governors are concerned, the guidelines in this regard have already been issued by the Ministry of Road Transport & Highways (MORTH). It has agreed to upload the Unique Identification Number of the Speed Governors of the VAHAN Database. This should be followed up by the MORTH with expedition. 14. The relevant excerpts of the procedure and the guidelines to be followed for the fitment of the Speed Limiting Devices, issued by the Government of India, Ministry of MORTH, on 02-08-2016, are detailed below : “In continuation of the guidelines dated 16-06-2016 and in super session of all earlier communications regarding installation of Speed Limiting Devices, it is clarified that vehicle owner should be at his liberty to choose the Speed Limiting Devices from any source/vendor as long as it is duly type approved by any of the test agencies under rule 126 of CMVR. It is strongly recommended that the State Governments do not restrict the freedom of the vehicle owners to choose the type approved Speed Limiting devices of any manufacturer. It will be the responsibility of the manufacturer to comply with the requirements of the AIS 018 along with the guidelines prescribed in the letter dated 16-06-2016. The State Government would have to ensure the effective implementation of the Notification for fitment of the Speed Limiting Device. It will be the responsibility of the manufacturer to comply with the requirements of the AIS 018 along with the guidelines prescribed in the letter dated 16-06-2016. The State Government would have to ensure the effective implementation of the Notification for fitment of the Speed Limiting Device. The State Government may, however, choose to impose eligibility and price criteria while selecting the Vendors for fitment of Speed Governors on the vehicles owned by it or any Transport Undertakings, Corporations or a local authority under its control.” 15. SRO 50 dated 16-02-2016 and sub rule (2) of rule 118, by which, the amendment was carried out in the Central Motor Vehicles Rules 1989, are in tune and in line with the directions extended by the apex Court from time to time and the guidelines detailed herein before. Therefore, these cannot be tinkered with. The orders, directions and the judgments delivered by the Supreme Court are binding on all the Courts and these are as sacred as a command for us for having been rendered by the highest Court of justice in the country. 16. In the backdrop of all that has been said and done above, this writ petition sans merit. It entails dismissal and is, accordingly, dismissed along with connected IAs. Interim direction, if any, shall stand vacated.