India – Legal Opinion On 27th February, 2019 Clarification Of Ministry Of Road Transport And Highways.

1. That Ministry of Road Transport and Highway (MORTH) vide clarification dated 27th February, 2019 (2019 Clarification) concluded that the compliance to the rules with respect to the safety of the drivers and road safety in general are of prime importance and these are non- negotiable. Further, the Original Equipment Manufacturers (OEM) were requested to ensure that the vehicle meant for carrying the two-wheelers should conform to the rules and they are equally responsible in case of violations.

2. The following queries had arisen with respect to the 2019 Clarification:

   1. a)  Whether the MORTH is empowered to issue clarifications restricting the scope of the Motor Vehicles Rules, 1989 read with the Motor Vehicles Act, 1988.

   2. b)  Whether the certain containers can continue to use fabricated containerized vehicles with more than Double Decks if they are within the overall dimensions under the Motor Vehicles Rules, 1989.

ANALYSIS:

A. AUTHORITY OF MORTH TO ISSUE CLARIFICATIONS

3. Section 110 of the MV Act empowers the Central Government to make rules, regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to matters related to the width, height, length of vehicles and the loads carries by those vehicles.

4. Therefore, in lieu of the same the Central Government has made The Central Motor Vehicle Rules, 1989 (MV Rules), inter-alia, including Rule 93(4) and Rule 93(8) dealing with dimensions of the vehicle and compliance made thereof.

5. It is relevant to point out that the responsibility for governing the matters also includes within its ambit the manner of ensuring the compliance of such matters, either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or in particular circumstances.

B. WHETHER THE CERTAIN CONTAINERS CAN CONTINUE TO USE FABRICATED CONTAINERIZED VEHICLES WITH MORE THAN DOUBLE DECKS IF THEY ARE WITHIN THE OVERALL DIMENSIONS UNDER THE MOTOR VEHICLES RULES, 1989.

6. Rule 93 of Motor Vehicle Rules 1989 deals with the Overall Dimension of the Motor Vehicle. However, sub-rule (4) specifically deals with the overall height of the Motor Vehicle and gives specific measurements whereas Rule 93(8) of Motor Vehicle Rules 1989 deals with the manner in which the vehicles shall not be loaded.

7. Sub-rule 93(8)(ii)clarifies that the motor vehicle shall not be loaded in such a manner that the load or any part extends to the front beyond the foremost part of the load body of the vehicle. Upon analyzing the aforementioned Rules, it is clear that the Rule is segregated as per the categorization of the motor vehicle and the same needs to be understood separately basis their own individuality and the same cannot be generalized else the purpose behind categorization of the rules into sub- categories goes into vein. In this regard, sub-rule 93(4)(i) only talks about the vehicles which are not double decked and the overall height shall not exceed 3.8 meters.

8. Thereafter, Sub-rule 93(4) (ii) specifically deals with double decked vehicles whose overall height shall not exceed 4.75 meters.

9. For all other vehicles, Sub-rule 93(4) (iii) talks about the fabricated containerized motor vehicles whose overall height shall not exceed 4.72 meters.

10. It is evident that in case of sub-rule (i) and (iii), there is no stipulation that the vehicles can be a double deck only. The express provision for ‘fabricated’ vehicles permits containerized vehicles be made such as suit the requirements of the use of vehicle provided the height stipulations set out in the said Rule 93(4) (4) (iii) read with Rule 93(8) are complied with.

11. The intention behind specifying the height of the vehicle or categorizing a vehicle as double decked is to ensure that the overloading of goods does not take place on the vehicle. Thus, it necessary to first manage the weight of the vehicle in order to satisfy the intention behind the enactment of the provision itself. In furtherance of the same it is noteworthy that gross vehicle weight is impacted by the axle combination of the vehicle. Thus, MORTH revised the maximum permissible weight for different configuration of axles. Maximum safe axle weight was specified by MORTH it is clear that the Querist is required to maintain the maximum safe axle weight of their vehicles as per the weight specified by MORTH vide, in addition to the stipulations set out in Rule 93 (4) (iii), as discussed above.

12. We now refer to the said 2019 Clarification a bare reading of the which indicates that:

    1. The observations made by the MORTH are based on deliberations in the Ministry;

    2. The observations are neither executive orders, instructions or amendments to the

       existing rules, but in fact are in the nature of opinions based on deliberations.

13. The Hon’ble Supreme Court of India has held that statutory rules cannot be amended by Executive instructions but "if the rules are silent" on any particular point, Government can fill up the gaps by issuing executive instructions, in conformity with the existing rules [Shiba Shankar Mohapatra and Ors. v. State of Orissa and Ors. (2010) 12 SCC 471]. In the present case the rules are elaborately set out with respect to permitted height of both double deck as well as fabricated vehicle carriers in Rule 93(4) read with Rule 93

    (8) which lays down the permitted dimensions of such vehicles.

     

CONCLUSION

Any instructions by the Central Government cannot go beyond or contrary to the MV Act and the MV Rules and to the extent the 2019 Clarifications seek to restrict us of fabricated vehicle carriers having three decks, the same is bad in law as the MV Rules expressly permit use of fabricated containerized vehicles within permitted height and dimensions.