IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.01.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.41698 of 2002 W.M.P.No.61668 of 2002 Rishi Palpu ... Petitioner vs. 1. The Transport Commissioner (Tamil Nadu), Chepauk, Chennai-5. 2. The Regional Transport Officer, Dharmapuri, PIN 636 705, Dharmapuri District. ... Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, to call for the records of the second respondent culminating in the impugned order R.No.54896/A2/2002, dated 15.11.2002 and quash the same. For Petitioner : Mr.N.Karthikeyan For Respondents : Mr.A.Arumugam Addl. Govt. Pleader O R D E R The petitioner, a National Permit Holder of a goods carriage, has sought a Writ of Certiorari to quash the order of the second respondent, dated 15.11.2002 and for further orders. 2. Brief facts leading to the Writ Petition are as follows: The petitioner, is the owner of the Heavy Goods Vehicle (HGV Trailor) manufactured by Volvo India Private Ltd., bearing registration No.NL 02 D 0100. The vehicle is covered with a valid National permit issued by the State Transport Authority, Nagaland and the Authorization is valid throughout India, including Nagaland, Assam, West Bengal Orissa, Andhra Pradesh Karnataka, Tamil Nadu and Kerala. As per the registration certificate and authorization certificate/permit, the Gross Vehicle Weight of the said vehicle is 71,000 Kgs. The number and description of the size of tyres weight entered in column 15 of the registration certificate of the vehicle is described below:- Sl.No Number, description of seize of tyres (a) Front axle 11.00 x 20 = 2 (b) Rear axle 11.00 x 20 = 4 (c) Any other axle 11.00 x 20 = 12 (d) Tandem axle ------ 3. The petitioner is having transport contract with M/s.Steel Authority of India, Karnataka to transport steel to their stockyard at Kochi in Kerala State. As per the permit issued by the Regional Transport Authority at Calcutta, the vehicle can carry load upto the gross vehicle weight of 71,000 kgs. The said gross vehicle weight was fixed on the basis of the number, description of size of tyres and the registered axle weight. The vehicle, while transmitting the goods is using only the National Highways and the State Highways on account of the size of the vehicle and the volume of the load carried by the vehicle. When the operators were faced with certain difficulties in carrying load than the permitted load in the State of Kerala, they filed Original Petition in O.P.No.29044 of 2001 and the High Court of Kerala has granted an interim direction not to detain the vehicles on the ground of excess weight, if the vehicles carry load with gross vehicle weight of 71,000 kgs permitted by the Registering Authority and the interim direction is still in force. Though the said order does not pertain to petitioner's vehicle, the order is generally followed by the Transport Authorities in Kerala State. 4. The petitioner has further submitted that recently, the Motor Vehicle Inspectors attached to the office of the second respondent are interfering with the free movement of the vehicle with the permitted load, alleging over load and on 14.11.2002, petitioner's vehicle was intercepted by the Regional Transport officer, second respondent herein, alleging that the vehicle was carrying load of 51,730 kgs and there was overload of 7,730 kgs, as per Notification of the Government of India in No.S.O.728 E, dated 18.10.1996. The said notification is not applicable to the type of vehicle described in this case, as the vehicle in question is 18 wheeler Trailor with tyre size of 11.00 x 20 and it is reecorded by the original Registering Authority, Nagaland as per specifications prescribed in Rule 95 of the Motor Vehicle Rules. 5. The petitioner has further submitted that the taxation of national permit vehicle are prescribed between the Governments and the petitioner is paying Motor Vehicle Tax in respect of Vehicle No.NL-02-D-0100 for the States of Nagaland, Assam, West Bengal, Orissa, Andra Pradesh, Karnataka, Tamil Nadu and Kerala irrespective of fact whether the vehicle enters the respective states or not. As per Section 46 of the Motor vehicles Act, a Motor Vehicle registered in accordance with the provision of the Act in any State shall not be required to be registered elsewhere in India and the certificate of registration issued or in force under the Act in respect of such vehicle shall be effective througout India. 6. The petitioner has further submitted that once the gross and laden weight is fixed after taking into consideration, the make of the vehicle axle and other conditions required under the Act and the Rules framed thereunder, and when the Registration Certificate is issued, the transport authorities have bound to consider the same as valid in all the States until it is changed in accordance with the law. Once the gross vehicle weight is entered in the registration certificate and the permit is counter signed by the State Transport Authority or any such other authority, the said vehicle can carry a maximum weight mentioned in the certificate and the respondents have no right or authority to detain the vehicle on the ground of increased gross vehicle weight and the loss of tax on account of increase in gross vehicle weight. It is further submitted that as per the Rules, the respondents cannot detain the vehicle in question on the ground of excess weight. Whenever the vehicle enters the State of Tamil Nadu, the vehicle has got valid permit issued by the competent authority, in which, the gross weight of the vehicle is mentioned as 71,000 kgs. 7. The petitioner has further submitted that when the Motor Vehicle Departmental Authorities of Karnataka State have detained the vehicles registered in other states on the ground of carrying excess land than what is permitted by the Karnataka Government, the Division Bench of the Karnataka High Court in W.A.No.894 and 895 of 1998, has held that the action of the respondents in detaining the vehicles is illegal and against the law. In these circumstances, the petitioner has challenged the order of the Regional Transport Authority, dated 15.11.2002, by which, the owner of the vehicle, the petitioner is advised to submit the original Registration Certificate to the District Transport Office, Mokokchung, Nagaland to correct the GVW as 44000 kgs and re-submit the same to the office for taking further action to release the vehicle. The said direction has been issued pursuant to the interception of the vehicle on 15.11.2002, where the Regional Transport Officer, Dharmapurai found that the vehicle was operated with gross vehicle weight of 71000 kgs., as against the maximum Gross vehicle Weight of 44,000 kgs., as per the Government of India (Surface Transport) Notification. Aggrieved by the same, the petitioner has preferred the present Writ Petition. 8. The Regional Transport Officer, Dharmapuri, in his counter affidavit has submitted that the vehicle bearing Registration No.NL 02 D 0100, was checked on 14.11.2002 and found that the vehicle weight was fixed with Gross Vehicle Weight of 71,000 kgs as against the prescribed Gross Vehicle Weight of 41,000 kgs, as prescribed under the Government of India, Surface Transport Notification No.S.O.728 E, dated 18.10.1996 and carrying overload of goods by 7730 kgs and therefore, for overloading, the vehicle was detained. It is further submitted that by memo dated 15.11.2002, the owner of the vehicle was instructed to correct the gross vehicle weight as 41,000 kgs at the District Transport Office, Mokokchung Nagaland and re-submit the records to the office for taking further action for release of the vehicle. 9. The second respondent has further submitted that the authorisation issued to a National permit vehicle by a State is valid through the States, to which, composite fee is being paid. As per the Motor Vehicle Act and the Rules framed thereunder, a vehicle should be produced before the Registering Authority in whose jurisdiction, the owner of the vehicle has residence or place of business where the vehicle is normally kept, along with the following documents, (a) Application in Form 20, (b) Fee as prescribed by Central Government, (c) Sale Certificate, in Form 21 issued by the Dealer, (d) A certificate, in form 22, issued by the Manufacturer, (e) A copy of the resister, in Form 19, to be maintained by the dealer and (f) Proof for the address furnished in the application. On detaining the above vehicle the dealer (as per the Registration Certificate) was addressed to issue the copy of the sale letter the vehicle and on verification of the sale letter copy issued by the manufacture cum Dealer, M/sVolvo India Pvt. Ltd., Bangalore, the following facts are ascertained. "(1) The vehicle was sold to Mr.Rishi Palpu, Sree Valsam 155, 6th Cross, Ramaiah Lay Out, Kananahalli, Bangalore 560 084 on 10.01.2000. (2) The Gross weight of the (4 x 2 Tractor coupled with axle trailer) vehicle is 40,200 kgs." 10. The second respondent has further submitted that as per Section 40 of the Motor Vehicles Act, 1988, the vehicle should have been registered by the Registering Authority, Bangalore, where by the owner of the vehicle has his residence as per the sale certificate issued by the Dealer. But the vehicle was registered by the Registering Authorty, Mokokchung, Nagaland State, quoting the name and address of the owner as Rishi Palpu, S/o. P.R.Palpu, H.S.Raod, Mokokchung, Nagaland, as per the registration certificate produced by the petitioner. As per the Surface Transport Notification S.O.728E, dated 18.10.1996, the maximum Gross Vehicle Weight of the vehicle shall be fixed as per the specifications issued by the manufacturer or as specified in Rule 95 of the Central Motor Vehicles Rules, 1989, 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 the maximum safeaxle weight put together subject to the restrictions, if any on the maximum Gross Vehicle Weight given in the said Schedule. As per the item III (iii) of the Schedule, the Gross Vehicle Weight has been restricted to 44.0 tonnes and as per the sale letter the Gross Vehicle Weight specified is 40.2 tonnes. Whereas, the vehicle was registered by the Registering Authority, Mokokchung, Nagaland State, with Gross Vehicle Weight of 71.0 tonnes as against the specified 40.2 tonnes, neither complying with the manufacturer specification nor complying with surface Transport Notification. 11. It is further submitted that the directions granted by the High Court of Kerala in O.P.No.29044 of 2001 does not pertain to his vehicle and the same is not applicable to the case of the petitioner. The second respondent has further submitted that on perusal of the documents produced by the petitioner, it was found that the vehicle has been registered against the Surface Transport Notification with fraudulent documents by the Registering Authorty, Mokokchung, Nagaland and the Certificate of Registration is liable to be cancelled under Sub 5 of Section 55 of the Motor Vehicles Act, 1988 and it is the bounden duty of the Regional Transport Officer, Dharmapuri and his subordinate officers to follow the provisions of the Motor Vehicles Act and detain the vehicle. For the above said reasons, the respondents have prayed for dismissal of the Writ Petition. 12. Reiterating the contentions made in the affidavit, Mr.karthikeyan, learned counsel for the petitioner submitted that the petitioner's vehicle was intercepted, alleging that it was overloaded by 7,730 kgs. Once the gross vehicle weight and laden weight are mentioned in the Registration Certificate, operation of the vehicle in Tamil Nadu cannot be restricted and the respondents have no authority to treat the same as violation of permit condition. The action to the respondents is contrary to law and it amounts to violation of the Fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. Referring to Section 46 of the Motor Vehicles Act, 1988, he further submitted that once the vehicle is registered in accordance with the provisions of the Act in any State, the same shall be effected through out the Country and therefore, when the gross vehicle weight and laden weight of the vehicle are mentioned in the registration certificate granted by the Motor Vehicle Authority of Nagaland, it is effective throughout India and therefore, the respondents have no authority to detain the vehicle on the ground of excess gross vehicle weight. He further submitted that the impugned order directing the petitioner to correct the gross vehicle weight is contrary to the provisions of the Act and that there is no necessity. 13. Before deciding the correctness of the impugned order, it is relevant to extract some of the provisions of the Motor Vehicles Act, 1988 dealing with Registration and overloading. Section 2(15) of the Motor Vehicles Act, 1988 defines "Gross Vehicle Weight and reads as follows: "in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle." 14. Section 58 of the Act deals with the Special Provisions in regarding transport vehicles and it is extracted hereunder: "(1) The Central Government may, having regard to the number, nature and size of the tyres attached to the wheels of a transport vehicle, (other than a motor cab), and the make and model and other relevant considerations, by notification in the Official Gazette, specify, in relation to each make and model of a transport vehicle, the maximum gross vehicle weight of such vehicle and the maximum safe axle weight of each axle of such vehicle. (2) A registering authority, when registering a transport vehicle, other than a motor cab, shall enter in the record of registration and shall also enter in the certificate of registration of the vehicle the following particulars, namely:- (a) the unladen weight of the vehicle ; (b) the number, nature and size of the tyres attached to each wheel; (c) the gross vehicle weight of the vehicle and the registered axle weights pertaining to the several axles thereof; and (d) if the vehicle is used or adapted to be used for the carriage of passengers solely or in addition to goods, the number of passengers for whom accommodation is provided; and the owner of the vehicle shall have the same particulars exhibited in the prescribed manner on the vehicle. (3) There shall not be entered in the certificate of registration of any such vehicle any gross vehicle weight or a registered axle weight of any of the axles different from that specified in the notification under sub-section (1) in relation to the make and model of such vehicle and to the number, nature and size of the tyres attached to its wheels: Provided that where it appears to the Central Government that heavier weights than those specified in the notification under sub-section (1) may be permitted in a particular locality for vehicles of a particular type, the Central Government may, by order in the Official Gazette direct that the provisions of this sub-section shall apply with such modifications as may be specified in the order. (4) [.........] (Sub-Section (4) was omitted by Act 27 of 2000. (5) In order that the gross vehicle weight entered ini the certificate of registration of a vehicle may be revised in accordance with the provisions of sub-section (3), the registering authority may require the owner of transport vehicle in accordance with such procedure as may be prescribed to produce the certificate of registration within such time as may be specified by the registering authority." 15. The Notification S.O.728(E) dated 18.10.1996 issued by the Government of India as per Section 58 of the Act is as follows: "In exercise of the powers conferred by sub-section (1) of Section 58 of the Motor Vehicles Act, 1988 (59 of 1988), and in supersession of the notification of the Government of India in the Ministry of Surface Transport No.S.O.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 details in the Scheduled 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 and axle weight respectively for each make and model as duly certified by the testing agencies for compliance of Rule 126 of the Central Motor Vehicles Rules, 1989, or (ii) the maximum gross vehicle weight and the maximum safe axle weight of each vehicle respectively as specified in the Schedule below for the relevant category, or (iii) the maximum load permitted to be carried by the tyre(s) as specified in the Rule 95 of the Central Motor Vehicles Rules, 1989 for the size and number of the tyres fitted on the axle (s) of the relevant make and model, whichever is less: Provided that the maximum gross vehicle weight in respect of all such transport vehicles, including multi-axle vehicles shall not be more than the sum total of all the maximum safe axle weight put together subject to the restrictions, if any, on the maximum gross vehicle weight given in the said Schedule:- Transport Vehicles Category Max GVW Maximum safe Tonnes Axle Weight II. Semi-Articulated Vehicles iii. Two Axle Tractor 40.2 Three Axle Trailer Tractor: 2 tyres on front axle 6 tonnes of front axle 4 tyres on rear axle 10.2 tonnes on rear axle Trailer: 12 tyres on 3 axles 24 tonnes on 3 axles 16. Pursuant to the said Notification, the Central Government have prescribed a table containing the size, plying rate and the Maximum weight permitted to be carried by such tyres in Rule 95(1) of the Central Motor Vehicles Rules. As per Rule 95(2) of the Rules, the maximum axle loading capacity shall be verified. Rule 126 of the Central Motor vehicles Rules, deals with prototype of every motor vehicle to be subject to test and it states that on and from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993, every manufacturer or importer of motor vehicles other than trailers and semi-trailers shall submit the prototype of the vehicle to be manufactured or imported by him for test by the Vehicle Research and Development Establishment of the Ministry of Defence of the Government of India or Automotive Research Association of India, Pune or the Central Machinery Testing and Training Institute, Budni (MP), or the Indian Institute of Petroleum, Dehradun, and such other agencies as may be specified by the Central Government for granting a certificate by that agency as to the compliance of the provisions of the Act and these Rules. The effectiveness of registration of the vehicle is deal with in Section 46 of the Act and it states that subject to the provisions of section 47, a motor vehicle registered in accordance with Chapter IV in any State shall not require to be registered elsewhere in India and a certificate of registration issued or in force under this Act in respect of such vehicle shall be effective throughout India. 17. In the light of the provisions of the Motor Vehicles Act, Central Motor Vehicle Rules and the Notification in S.O.728(E) dated 18.10.1996 issued under Section 58(1) of the Act, the issue to be considered as to whether the Registration Certificate and the Authorization Certificate/permit, issued by the State Transport Authority, Nagaland, is valid and whether the same can be effective through out India as per Section 46 of the Act. 18. A conjoint reading of Section 58(1) of the Act and the statutory Notification issued by the Central Government, makes it clear that maximum load permitted to be carried by the tyres (s) specified in Rule 95 of the Central Motor Vehicle Rules, 1989, for the size and number of the tyres fitted on the axle(s) of the relevant make and model, should be 40,200 kgs (Gross Vehicle of the 4/2 Tractor coupled with axle trailer). 19. When the Notification dated 18.10.1996, issued by the Central Government under sub-section (1) of Section 58 was challenged, the Supreme Court in N.Venkateswara Rao v. STA reported in 1997 (2) SCC 320, at Paragraphs 11 and 12 held as follows: "11. A reading thereof would clearly indicate that the Central Government may, having regard to the number, nature and size of the tyres attached to the wheels of a transport vehicle and its make and model and other relevant considerations, by notification in the Official Gazette, specify, in relation to each make and model of a transport vehicle, the maximum gross vehicle weight of such vehicle and the maximum safe axle weight of each axle of such vehicle. When the Registering Authority registers a transport vehicle it should enter in the record of registration and also enter in the certificate of registration of the vehicle, the unladen weight of the vehicle the number, nature and size of the tyres attached to each wheel; the maximum gross vehicle weight of the vehicle and the registered axle weights pertaining to the several axles thereof. When by reason of any alteration in such vehicle including the alteration in the number, nature, size of tyres, the gross vehicle weight of the vehicle or the registered axle weight of any of its axles no longer accords with the provisions of Sub-section (3), the provisions of Section 52 shall apply and the Registering Authority has to enter in the certificate of registration of the vehicle, revised registered weights which should accord with the said sub-section. The scheme of the Act and the Rules would provide an inbuilt procedure under the Act to maintain construction, equipment and maintenance of the motor vehicle as regards its maximum gross vehicle weight, maximum safe axle weight, the nature and size of the tyres fitted to the vehicle and also maximum safe axle weight of each axle of the vehicle as entered in the certificate of registration or revised, if there occurred change in the weight. 12. The question, therefore, is : whether the Government in exercising its power under Section 58(1) of the Act has abdicated its power in favour of the manufacturers as contended by the learned Counsel for the parties? On consideration of the scheme of the Act and the purpose it seeks to serve, namely, roadworthiness and the safety of the vehicle and also the safety of the transport, we think that the Government has not abdicated its power in exercising its power under Section 58(1) of the Act by issuance of the notification dated October 18,1996. It is seen that in the notification the Government specified that in relation to the transport vehicles (other than motor cabs) of various categories detailed in the Schedule, the maximum gross vehicle weight and the maximum safe axle weight of each axle of such vehicle shall, having regard to the size, nature and number of the tyres of the maximum weight permitted to be carried by the tyres as specified in Rule 95 of the Rules which reads as under: (i) Vehicle manufacturers rating of the gross vehicle weight and axle weight respectively for each make and model as duly certified by the testing agencies for compliance of Rule 126 of the Central Motor Vehicles Rules, 1989, or (ii) the maximum gross vehicle weight and the maximum safe axle weight of each vehicle respectively as specified in the Schedule below for the relevant category, or (iii) the maximum load permitted to be carried by the tyre(s) as specified in the Rule 95 of the Central Motor Vehicles Rules, 1989, for the size and number of the tyres fitted on the axle(s) of the relevant make and model, whichever is less: Provided that the maximum gross vehicle weight in respect of all such transport vehicles, including multi-axle vehicles shall not be more than the sum total of all the maximum safe axle weight put together subject