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Rajasthan High Court · body

2019 DIGILAW 2450 (RAJ)

Mahadev Fitness Center v. State of Rajasthan

2019-09-12

SANGEET LODHA

body2019
JUDGMENT Sangeet Lodha, J. - By way of these writ petitions, the petitioners are seeking directions to the respondents for renewal of their Letter of Authority (LoA) issued by competent authority, under Rule 63 of the Central Motor Vehicles Rules, 1989 (for short "the Rules of 1989"), for operating Fitness Testing Station ('FTS') established to issue or renew a certificate of fitness to a transport vehicle as envisaged under Section 56 of the Motor Vehicles Act, 1988 (for short "the Act of 1988"). In some of the writ petitions, the petitioners have also questioned the validity of Motor Vehicle Fitness Testing Station Regulation Scheme 2018 (FIJA-2018) published by the State Government vide order No.13/18 dated 24.4.18. That apart, in a few petitions, the legality of order issued by the prescribed authority rejecting the application for establishment/renewal of FTS is also impugned. 2. The facts relevant are that the petitioners were granted LoA to operate FTS to issue or renew fitness to a transport vehicle under Rule 63 of the Rules of 1989 for a period of five years. The eligibility to operate FTS and the infrastructure required for operating private FTS at the relevant time were governed by FIJA2011, a scheme for regulation of vehicle fitness verification centres published by the State Government. The scheme FIJA2011 now stands substituted by the scheme FIJA-2018, which has been framed by the State Government while following the norms laid down by the Government of India for periodic auditing and operation supervision of Inspection & Certification Centres by Executing Agency, vide circular dated 3.7.15. The petitioners, who were earlier granted the LoA for operating the FTS are not granted the renewal inasmuch as, they have not fulfilled the requirement to operate the FTS as specified under FIJA-2018. 3. Mr. H.R.Bishnoi, learned counsel appearing for the petitioners submitted that new scheme FIJA-2018 issued by the State Government providing for upgrading of the FTS as per the norms laid down runs contrary to the provisions of Rule 62 to 65 of the Rules of 1989. 3. Mr. H.R.Bishnoi, learned counsel appearing for the petitioners submitted that new scheme FIJA-2018 issued by the State Government providing for upgrading of the FTS as per the norms laid down runs contrary to the provisions of Rule 62 to 65 of the Rules of 1989. Learned counsel submitted that as per Rule 126 of the Rules of 1989, every manufacturer is required to submit a prototype of vehicle, which is subject to testing by Central Government Agency or the other agencies as may be specified by the Central Government, however, under the new scheme FIJA2018, the provision is made for inspection and audit of FTS by other agencies without any basis and thus, the scheme FIJA-2018 being in conflict with the provisions of Rule 126 of the Rules of 1989 cannot be permitted to operate. Drawing the attention of the court to clause 4(e) of FIJA-2018, learned counsel submitted that it requires vehicle fitness testing centre to obtain certificate regarding installation of machinery at the fitness centre from a particular agency selected for testing the vehicle or its prototype whereas, machinery is installed by the manufacturing company itself and further inspection of the FTS is conducted by the respondents as well and thus, the provision made for a third party inspection report which is given after charging lacs of rupees as fee, is ex facie illegal. Learned counsel submitted that in the list of common equipments provision for calibration equipment is mentioned for installation in the FTS whereas, no such requirement of calibration equipment is set out in the Rules of 1989 and therefore, when the equipments were installed and calibrated by the manufacturer of the equipments and inspection and testing is being done by the respondent authorities, there is no point in installation of the calibration set in the fitness centre. Learned counsel submitted that FIJA-2018 provides for calibration of toolset generator and computer whereas, the same is not at all required. It is submitted that there is no necessity of wheel alignment machine and scanner because these are equipments of workshop and not of the FTS, however, these equipments have been wrongly and arbitrarily included in the list of machinery and therefore, the new scheme FIJA-2018 deserves to be quashed and set aside. It is submitted that there is no necessity of wheel alignment machine and scanner because these are equipments of workshop and not of the FTS, however, these equipments have been wrongly and arbitrarily included in the list of machinery and therefore, the new scheme FIJA-2018 deserves to be quashed and set aside. Learned counsel submitted that new scheme FIJA-2018 provides for third party audit of vehicle fitness centre after every two years by the third party auditors selected by the respondents. It is submitted that the respondents are conducting regular audits of the FTS and it is the duty of the respondents to conduct the audit and therefore, no third party audit is required to be done, which will cost lacs of rupees to the petitioners and their likes. Further, there is no provision for third party audit in the Rules of 1989 and thus, the Scheme FIJA-2018 framed being dehors the Rules of 1989, deserves to be quashed and set aside on this count alone. 4. Mr. Manoj Bhandari, learned counsel appearing for M/s. Balaji Fitness Centre, Bhilwara (S.B.C.Writ Petition No.3405/16) and Mr. Sudhir Saruparia, learned counsel appearing on behalf of the petitioner- M/s. Shree Fitness Centre, Udaipur and M/s. Karni Fitness Centre (S.B.C.Writ Petition Nos.16402/18 & 16413/18), submitted that the petitioners have already fulfilled all the requirements of FIJA-2018 including the requirement of inspection and audit report and thus, the respondents deserve to be directed to renew the LoA of the petitioners in accordance with the rules expeditiously. 5. Mr. B.L.Tiwari, learned counsel appearing for M/s. Jodhpur Parivahan Fitness Centre (S.B.C.Writ Petition No.6390/18), submitted that under Rule 63 of the Rules of 1989, the power to grant and renew LoA to operate an authorised testing station is vested in Registering Authority and thus, the State Government cannot inter-meddle in the matter. Learned counsel submitted that the requirement laid down under FIJA-2018 are beyond the provisions of law and cannot be made operative qua the petitioner and its likes, who are already operating FTS. Learned counsel submitted that the requirement laid down under FIJA-2018 are beyond the provisions of law and cannot be made operative qua the petitioner and its likes, who are already operating FTS. Learned counsel submitted that the Act of 1988 is self contained code and all the authorities mentioned therein are statutory authorities, which are bound to discharge their function as specified under the Act of 1988 and the rules made thereunder and therefore, the discretion vested in them, cannot be regulated and controlled by the State Government by introducing a scheme beyond the provisions of the Act. Learned counsel submitted that the Regional Transport Authority has already recommended for renewal of LoA issued in favour of the petitioner and thus, the action of the respondents in withholding the renewal of LoA, is ex facie without jurisdiction. 6. On the other hand, Mr.M.S.Singhvi, Advocate General appearing for the State submitted that the scheme FIJA-2018 has been issued by the State Government in conformity with the provisions of Section 63 to 73 of the Act of 1988 and the same in no manner can be said to be issued in violation of the provisions of the Act of 1988. Learned AG submitted that admittedly, vide order dated 3.7.15, the Government of India has issued detailed instructions regarding Operation and Inspection Methodology, Calibration of Testing Equipments, Maintenance, Test Data Management etc. and it also provides for periodic audit by Executing Agency and thus, the provision for third party audit incorporated is in conformity with the instructions issued in this regard by the Government of India. Learned AG submitted that under Section 56 of the Act of 1988, for registration of a transport vehicle for the purposes of Section 39 of the Act, it must carry a certificate of fitness in such form and particulars and information as may be prescribed by the Central Government, issued by the Prescribed Authority or by an authorised testing station mentioned in sub-section (2) to the effect that the vehicle complies for the time being with all requirements of the Act and the rules made thereunder. Learned counsel submitted that as per sub-section (2) of Section 56, the authorised testing station refers to a vehicle service station or public or private garage which the State Government having regard to the experience, training and ability of the operator of such station or garage and testing equipment and testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages. Learned AG submitted that nobody can claim to operate FTS as a matter of right. The establishment, operation and supervision thereof is controlled by the Prescribed Authority in conformity with the provisions of the Act and the rules made thereunder. Learned AG submitted that as per the provisions of sub-section (4) of Section 56, any fitness certificate issued in respect of a transport vehicle is liable to be cancelled if it does not comply with all the requirements of the Act and the rules made thereunder. Learned AG submitted that as per the mandate of the provisions of Rule 67 of the Rules of 1989, the registering authority or any officer of the Motor Vehicle Department of the State Government duly authorised in this behalf by the registering authority are empowered to conduct test checks at the premises of the authorised testing station with a view to ensure that vehicles are properly tested by the authorised testing station and for this reason, it is absolutely necessary to ensure that the authorised testing station is equipped with the all required machinery, equipments, apparatus and other infrastructure, which are essential for testing of the fitness of a transport vehicle. Learned AG further submitted that the provisions regarding third party audit incorporated in FIJA-2018 specifically refers to the agency which are specified under Rule 126 of the Rules of 1989 and therefore, the provision incorporated for the periodical audit and submission of the report to the registering authority cannot be faulted with. Learned AG further submitted that the provisions regarding third party audit incorporated in FIJA-2018 specifically refers to the agency which are specified under Rule 126 of the Rules of 1989 and therefore, the provision incorporated for the periodical audit and submission of the report to the registering authority cannot be faulted with. Learned AG submitted that Rule 126, which deals with prototype of every motor vehicle which is subject to test as provided, has nothing to do with the operation of authorised testing station established to ensure the compliance of the provisions of Section 56 to 63 of the Act of 1988 and thus, the reference of the agencies specified under Rule 126 for the purpose of the audit as mandated does not mean that the State Government has invoked the provisions of Rule 126 of the Rules of 1989 for making the audit by Executing Agency compulsory. Learned AG submitted that the petitioners who are claiming the authority from the State Government to operate the fitness centre, cannot be permitted to contend that the norms laid down by the State Government revised from time to time are not required to be followed. In support of the contention, learned counsel relied upon a decision of the Supreme Court in the matter of Union of India (UOI) & Ors. vs. International Trading Co. & Ors., (2003) 5 SCC 437 . Learned AG would submit that if a centre is not equipped with the machinery, equipments and apparatus required then even existing FTS cannot be permitted to operate and they cannot claim renewal of the LoA without compliance of the norms laid down, revised from time to time and thus, the petitions preferred are absolutely devoid of any merit and therefore, deserve to be dismissed. Learned AG fairly submitted that there being the requirement of testing of the transport vehicle, even the Prescribed Authority cannot issue the fitness certificate straight away without the testing of the transport vehicle in all respect to ensure the fulfillment of the requirement of the Act and the rules made thereunder and thus, if any such practice is prevailing, the same needs to be stopped. Learned AG fairly submitted that the petitioners who have already submitted the audit report, their matter for grant of authorization/renewal thereof shall be considered by the Prescribed Authority expeditiously. 7. Learned AG fairly submitted that the petitioners who have already submitted the audit report, their matter for grant of authorization/renewal thereof shall be considered by the Prescribed Authority expeditiously. 7. I have considered the rival submissions of the learned counsel for the parties and perused the materials on record. 8. Indisputably, by virtue of provisions of Section 56 of the Act of 1988, subject to provisions of Section 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government issued by the prescribed authority, or by an authorized testing station mentioned in subsection (2) to the effect that the vehicle complies for the time being with all requirements of the Act of 1988 and the rules made thereunder. 9. As per sub-section (2) of Section 56, 'authorized testing station' referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and testing personnel therein may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages. 10. Sub-Section (4) of Section 56 empowers prescribed authority to cancel a certificate for fitness at any time for the reasons to be recorded, if satisfied that the vehicle to which it relates no longer complies with all the requirements of the Act of 1988 and the rules made thereunder. 11. Thus, apparently, no FTS or public or private garage can claim authorization for issuing certificate of fitness to transport vehicles unless having regard to experience, training and ability of the operator of such FTS or garage and testing equipments installed therein, authorization is issued in this regard by the State Government. The FTS once granted the authorization to discharge the function of issuing certificate of fitness in terms of provisions of sub-section (1) of Section 56, cannot claim the renewal of the authorization as a matter of right. Obviously, during the operative period of the authorization as also at the time of renewal, the authorized testing station or garage must satisfy the requirement -as provided for regulation and control of such stations or garages. Obviously, during the operative period of the authorization as also at the time of renewal, the authorized testing station or garage must satisfy the requirement -as provided for regulation and control of such stations or garages. 12. In exercise of the power conferred under Section 64 of the Act of 1988, the Central Government has framed the rules regulating the registration of the motor vehicles, which are incorporated in Chapter III of the Rules of 1989. 13. As per Rule 62 of the Rules of 1989, a fitness certificate to a transport vehicle in the form prescribed is to be granted and the renewal thereof is permissible to be made, only after an inspecting officer or authorized testing station as referred to in sub-section (1) of Section 56 of the Act of 1988 carried out the tests as specified in the Table given under Rule 62 of the Rules of 1989. 14. As per Rule 63 of the Rules of 1989, which provides for regulation and control of authorized testing stations mandates that no operator of an authorized testing station shall issue or renew a certificate of fitness under Section 56 without an LoA in Form 39 granted by the registering authority. As per sub-rule (3) of Rule 63, the registering authority while considering an application for grant or renewal of LoA shall have regard to the matters as specified which includes the eligibility of the applicant and the staff employed, the area of the FTS, the space required for different purposes including erection of testing equipments and other apparatus, the installation of the inspection lanes, testing equipments and apparatus in the manner provided, the maintenance of the equipment and apparatus in good conditions for undertaking tests pertaining to exhaust gas, engine tuning, engine analysis, smoke emission, break system, headlights, wheel alignment, compression, speedometers and other components. The financial resources of the applicant being sufficient to provide for continued maintenance is also a relevant consideration for granting LoA to operate FTS. 15. The financial resources of the applicant being sufficient to provide for continued maintenance is also a relevant consideration for granting LoA to operate FTS. 15. That apart, as per clause (e) of Rule 65 of the Rules of 1989, the holder of LoA is required to keep the premises of FTS, the records and registers maintained by it and all machinery, equipments and apparatus in the premises at reasonable time open for inspection by the registering authority or any person of the Motor Vehicle Department of the State Government established under Section 213 authorized in this behalf by the registering authority. The FTS which are issued LoA are under an obligation to maintain the equipments, machinery and apparatus in good condition during the operative period of LoA and if it fails to maintain the same in good condition, an LoA issued may be suspended or cancelled by virtue of Rule 69 of the Rules of 1989. 16. It is pertinent to note that the relevant rules provides for installation of testing equipments and apparatus in the manner prescribed for undertaking test pertaining to the various components but do not specify the equipments and apparatus required to be installed and specifications thereof, obviously for the reason that with the advancement of the technology, to ensure the accuracy of the tests specified and the availability of better testing facilities, the requirement of testing equipments and apparatus may vary. 17. It is noticed that by way of circular dated 3.7.15, the Government of India while providing for Periodic Auditing and Operation supervision of Inspection and Certification Centers by Executing Agency, has also delineated the scope of work to be undertaken by Executing Agency, which includes Operation and Inspection Methodology, Calibration of Test and Equipment, Maintenance, Test Data Management, Organization Chart and Training records of the personnel, Infrastructure-Safety and Environmental Assessment, Availability and upkeep of necessary utilities, Software Parameters, Transfer of Test data to Ministry of Road Transport and Highways (MoRTH), Customer complaints. The cost of the six audits to be conducted within a period of two years, has also been specified, which is payable only after receipt of the audit report after completion of each audit. 18. The cost of the six audits to be conducted within a period of two years, has also been specified, which is payable only after receipt of the audit report after completion of each audit. 18. A perusal of FIJA-2018 promulgated by the Department of Transport, Government of Rajasthan, vide order dated 24.4.18 reveals that the same has been issued in conformity with the provisions of the Rules of 1989 and the instructions issued by the Central Government in this regard from time to time, which only supplement the rules and in no manner, supplant or violate the Rules of 1989, as claimed by the petitioners. 19. Coming to the applicability of Rule 126 of the Rules of 1989, to the authorized testing station and the reference thereof in clause 7(III) of FIJA-2018, it is true that Rule 126 of the Rules of 1989 deals with prototype of every motor vehicle to be manufactured or imported by the manufacturer or importer being subjected to test by the Vehicle Research and Development Establishment of Ministry of Defence of the Government of India or other agencies as specified in the said rule. But then, bare perusal of the clause 7(III) of the Scheme, makes it abundantly clear that by incorporating said clause, only the agency specified in Rule 126 authorized to the conduct the test of prototype of a motor vehicle, have been designated as the Executing Agency for the purpose of Period Auditing and Operation Supervision of Inspection and Certification Center. In this view of the matter, mere reference of the agencies specified under Rule 126 for the purpose of audit as mandated, does not mean that while framing the scheme and providing for the audit, the State Government has invoked the provisions of Rule 126 of the Rules of 1989. 20. Keeping in view the relevant provisions of the Act of 1988 and the rules made thereunder discussed hereinabove, in the considered opinion of this court, Scheme FIJA-2018 framed by the State Government delineating the methodology for establishment of FTS and regulating the operation and control thereof, is in no manner violative of the Rules of 1989. 20. Keeping in view the relevant provisions of the Act of 1988 and the rules made thereunder discussed hereinabove, in the considered opinion of this court, Scheme FIJA-2018 framed by the State Government delineating the methodology for establishment of FTS and regulating the operation and control thereof, is in no manner violative of the Rules of 1989. The petitioners or their likes cannot claim right to operate FTS as a matter of right even if they had already been granted authorization and are presently, claiming renewal thereof unless they satisfy the requirement of the Rules of 1989 and the Scheme framed by the State Government as aforesaid so as to ensure the compliance of the provisions of the Act of 1988 and Rules of 1989 relating to the certification of fitness of transport vehicles. 21. It is noticed that by virtue of the interim order granted by this court in various matters, some of the petitioners herein, are operating FTS without undergoing the process for authorization/renewal of the FTS as delineated under FIJA-2018. Thus, in the interest of justice, it is considered appropriate to permit them to operate the FTS for a specified period so as to enable them to obtain the audit report as contemplated under Scheme FIJA-2018, for the purpose of renewal of the authorization. 22. In the result, the writ petitions fail, the same are hereby dismissed. The impugned Scheme FIJA-2018 promulgated by the State Government vide order dated 24.4.18 is upheld. However, in the interest of justice, the petitioners are extended two months time to satisfy the requirements of the Scheme FIJA-2018 for the purpose of grant of authorization or renewal thereof to operate Fitness Testing Stations. The petitioners, who are operating the fitness centers without renewal pursuant to the interim order passed by this court, are permitted to operate the FTS for further period of two months without renewal in terms of the Scheme FIJA-2018. It is made clear that if the petitioners fail to fulfill the requirement of the Scheme FIJA-2018 within the stipulated time of two months, the respondents shall be at liberty to close the Fitness Testing Stations being operated by such petitioners forthwith. It is made clear that if the petitioners fail to fulfill the requirement of the Scheme FIJA-2018 within the stipulated time of two months, the respondents shall be at liberty to close the Fitness Testing Stations being operated by such petitioners forthwith. The petitioners, who have already satisfied the requirement of FIJA-2018 including the requirement of audit by Executing Agency, their matter with regard to grant of authorization/renewal thereof shall be considered by the authority concerned with utmost expedition, in any case, within a period of two weeks from the date of this order. Needless to say that if the requirements are fulfilled, the petitioners shall be granted authorization/renewal in accordance with the Rules forthwith. No order as to costs.