Full Judgment Text
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PETITIONER:
N. VENKATESWARA RAO & ORS. ETC.
Vs.
RESPONDENT:
S.T.A & ORS. ETC.
DATE OF JUDGMENT: 21/11/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
WITH
C.A. NOS. 15713-15918/93 [@ SLP (C) Nos. 23497-507,
25867, 26003, 26004, 26005-06, 26020, 26724-42, 26999-27104,
27127-139, 27188-191, 27206-222, 27235-39, 27395-419/95],
C.A NOS. 15919-921/96 [@ SLP (C) NOS. 24395-97/96 (CC
5297/95)], C.A. NOS. 15922-26/96 [@ SLP (C) NOS. 208/96,
209/96, 24400-401/96 (CC 82/96 AND 90/96], C.A. NO. 16011/96
[@ SLP (C) NO. 24403/96 (CC 97/96)], C.A. NOS.15297-16010/96
[@ SLP (C) NOS. 270-299/96, 27757-810/95], C.A. NOS. 16012-
623/96 [@ SLP (C) NOS. 24405-07/96 (CC-160/96), 3595/96,
548-533/96, 24970-71/95, Q.P. No. 259/95, C.A. NO. 16624/96
[@ SLP No. 4928/96] C.A. NOS. 16594-626/96 [@ SLP (C) NOS.
5877-5909/96 (CC 778/96)], C.A. NOS. 16025-16593/96 [@ SLP
(C) Nos. 5021-34/96, 6083, 6145-47, 6149-56/96, 6084-6143,
4951-79, 1220-25, 5538-47/96, 6160-90, 8412-31, 6277-6356,
7824-47, 8534-69, 8575-8605, 10049-083, 10408, 10445-454,
11029-033, 11803-810, 10849-851, 10852-884, 9853, 12027,
10828-840, 12028-037, 11890, 12213, 11875-884, 13043, 13185-
239/96, 14082-085, 14869, 14768-771, 14870-882, 14892,
16952/96, 22641 AND 22642/96]
O R D E R
Permission to file special leave petitions is granted.
Delay condoned.
Leave granted in all the special leave petitions.
These appeals by special leave arise from the judgment
of the Division Bench of the Andhra Pradesh High Court made
in W.P. No. 6211/90 and batch, on December 21, 1991. All the
appellants are owners of public carriers plying in the State
of Andhra Pradesh and registered under the Motor Vehicles
Act, 1988 (hereinafter referred to as the "Act"] and the
Rules made thereunder. Their vehicles have 3 axles and are
called Tauras vehicles. It is their case that due to change
in the size of the tyres of the front axles and the rear
axle and the ply rating, the maximum self-laden weight got
increased. Therefore, with permission of the Regional
Transport Authority they have been plying the vehicles with
increased laden weight from August 1988. But after March 31,
1990, they were interdicted on the ground that the weight
was in excess of maximum permissible laden weight and
maximum safe axle weight and as a consequence thereof their
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business of transporting goods has been interfered with
unnecessarily. As this was being done under the Notification
dated June 8, 1989 issued by the Central Government in
exercise of its power under Section 58 of the Act they
challenged the said Notification as ultra vires the
provisions of the Act. After the judgment of the High Court,
the Rules came to be amended in 1994. When the appeals were
preferred before this Court, by order dated February 1, 1996
this Court pointed out that the Central Government have to
carry out the amendment to the Rules and the Schedule so as
to bring them in conformity with the Amendment Act 54 of
1994. Time, when sought for to do the needful, was granted
to the Government of India. As a result, now the
notification has been issued on October 18, 1996 exercising
the power under Section 58 (1) of the Act and also appended
explanatory note to the said notification.
S/Shri Sudhir Chandra, Rajiv Dhawan, Smt. Amareswari,
learned senior counsel and Shri L.N. Rao, learned counsel
for the appellants, contend that the notification issued by
the Government, in particular the words "whichever is less"
after the end of the three clauses, is in abdication of the
power given to the Central Government under Section 58(1)
which empowers the Central Government to prescribe the
maximum gross vehicle weight and the maximum safe axle
weight by way of an appropriate Notification. The impugned
Notification after referring to the three indices has
provided that the maximum gross vehicle weight and the
maximum safe axle weight shall be out of these three
indicated weights, whichever is less. By providing like
that, it has, instead of fixing such weight itself, has
either abdicated or delegated the power in favour of the
manufacturer. The Notification, as it is, clearly indicates
that the Central Government has not exercised its power
properly but has left determination of maximum gross vehicle
weight and the maximum safe axle weight to the
manufacturers. It was, therefore, submitted that exercise of
the power is thus not consistent with the provisions of the
Act. Shri Rajiv Dhawan has further contended that the
Registering Authority has been given free-hand either to
register or refuse to register the vehicles which is not in
conformity with the Schedule and that, therefore, the action
would always an impediment to have the vehicle registered.
Thereby, the Central Government have obviated the statutory
power given under the Act.
Shri P.P. Malhotra, learned senior counsel for the
Union of India, on the other hand, contends that Section 58
should be read with the Rules. Chapter 7 of the Rules
prescribed various circumstances enumerated in the matter of
construction, equipment and maintenance of the motor
vehicles. After taking into consideration all the relevant
factors, namely, the maximum axle weight, size and ply
rating of the tyres and all other relevant factors, the
manufacturers as well as the testing authorities are
required to ensure that the Act and the Rules made
thereunder are strictly complied with. The notification is
only to ensure such a compliance. Thereby, the Central
Government have not abdicated the power given under Section
58 of the Act to the manufactures nor to the Registering
Authority as its delegatee. Shri Raghuvir, learned senior
counsel appearing for the State of Andhra Pradesh, has
further argued that the indicia provided, namely, ‘whichever
is less’ in the notification would manifests the object that
the roadworthiness requires to be considered when the
vehicle is registered; the entries in the register would
indicate the maximum vehicle weight, axle weight and the
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‘tyre weight’ which would approximately be less than the
maximum prescribed so that the load weight of the goods and
vehicle weight remain constant the roadworthiness of the
vehicle would be continued and the safety of the carriage of
goods would also be ensured. If such a construction is
adopted, the Government of India cannot be said to have
abdicated their power given under Section 58 of the Act.
In view of the rival contentions raised by the learned
counsel on either side, the question is whether the impugned
notification dated October 18, 1996 is in conformity with
the provision of the Act? Section 2(3) of the Act defines
"axle weight" to mean, in relation to an axle of a vehicle,
the total weight transmitted by the several wheels attached
to that axle to the surface on which the vehicle rests.
Section 2 (15) defines "gross vehicle weight" to mean, 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. Section 2 (36) defines
"registered axle weight" to mean, in respect of the axle of
any vehicle, the axle weight certified and registered by the
Registering Authority for that axle. "Registering Authority"
has been defined under Section 2(37) to mean an authority
empowered to register motor vehicles under Chapter IV.
Section 109 in Chapter VII of the Act deals with
construction, equipment and maintenance of the motor
vehicles. It reads as under:
"(1) Every motor vehicle shall be
so construed and so maintained as
to be at all times under the
effective control of the person
driving the vehicle.
(2) Every motor vehicle shall be so
constructed as to have right hand
steering control unless it is
equipped with a mechanical of
electrical signaling device of a
prescribed nature."
The Central Government have been given power under
Section 110 to make rules regulating the construction,
equipment and maintenance of the motor vehicles. Clause (b)
of Section 110(1) provides that the size, nature, maximum
retail price and condition of tyres including embossing
thereon of date and year of manufacture and the maximum load
carrying capacity are required to be prescribed. In
accordance therewith, the Rules have been made. Chapter V of
the Rules deal with construction, equipment and maintenance
of the motor vehicles. Rule 92 gives a general prescription
that "No person shall use or cause or allow to be used in
any public place any motor vehicle which does not comply
with the provisions of this Chapter." Rule 93 gives overall
dimensions of the motor vehicles and Rule 94 prescribes the
conditions of the tyres. Rule 95 prescribes the size, ply
rating of tyres as per the Schedule gives therein, the
details to which we will be dealt with at a later stage.
Suffice it to state that Rule 95 prescribes the sizes of the
tyres of motor vehicles specified in the column and the
table prescribes the maximum weight permitted to be carried
by such tyres specified in the corresponding column 3. Rule
126 provides for the prototype of every motor vehicle to be
subject to test after the Motor Vehicles (Amendment) Rules,
1993 have come into force. It reads as under:
"126. Prototype of every motor
vehicle to be subject to test - On
and from the date of commencement
of Central Motor Vehicles
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(Amendment) Rules, 1993, every
manufacturer of motor vehicles
other than trailers and semi-
trailers shall submit the prototype
of the vehicle to be manufactured
by him for test by the vehicle
Research and Development
Establishment of the Ministry of
Defence of the Government of Indian
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 provisions of the
Act and these rules."
Rule 126-A prescribes that the testing agencies
referred to in Rule 126, shall, in accordance with the
procedure laid down by the Central Government, also conduct
tests on vehicles drawn from the production line of the
manufacturer to verify whether these vehicles conform to the
provisions of Rule 115 of the Rules. Rule 115 speaks of
emissions of smoke, vapour, etc. from motor vehicle and also
other conditions, the details of which are not material for
the purpose of these cases. Registration of motor vehicle is
dealt with under Rule 47 read with Form 20 and Rule 47 (a)
and (b) in conformity with Form 21 and Rule 47 (g), 115(b),
124, 126-A and 127, as specified in Form 27. In Form 20,
column 25 prescribes specification of gross vehicle weight
as specified by the manufacturer and the same has to be
registered in the form. Column 26 specifies maximum axle
weight etc., the details of which have been mentioned in
clauses (a) to (d). Column 30 prescribes number, description
and size of tyres on each axle. Column 31 prescribes maximum
axle weight in respect of each axle. Similarly in Form 21 in
clauses (a) to (d) of column 11 maximum axle weight and
number and description of tyres (in case of transport
vehicle), front axle, rear axle, any other axle, tandem axle
have been specified. Column 13 specifies gross vehicle
weight. Thus it could be seen that all the provisions of the
Act and the Rules specify the maximum weight of axle and
tyres and the required weightage to be mentioned in the
Certificate of Registration in Form 20, 21 and 22
conformably to Rule 47. Equal are the provisions with
respect to the tyres which need no reiteration.
In this behalf, the power of the Central Government has
been crystallized in Section 58 of the Act. Section 58 reads
as under:
"58. Special provisions in regard
to transport vehicles. - (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 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
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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
axle 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 on a registered axle weight
of any of the axle 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:
(4) When by reason of any
alteration in such vehicle,
including an alteration in the
number, nature or size of its
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 shall enter
in the certificate of registration
of the vehicle revised registered
weights which accord with the said
sub-section."
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
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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 vehicle
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 no
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 in built 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 the maximum safe axle weight of each axle
of the vehicle as entered in the certificate of registration
or revised, it there occurred change in the weight.
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
vehicles 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:
"(1) 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 tire(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
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maximum gross vehicle weight given
in the said Schedule."
It is seen that Schedule has been attached to this
notification in which they have mentioned the rigid
vehicles, semi-articulated vehicles as enumerated therein,
the details of which are redundant to be extracted in the
judgment, but they become part of the judgment. It is true
that clause (1) by itself indicates and gives an impression
that the Central Government had abdicated its discretion in
favour of the manufacturer, of rating the gross vehicle
weight and the axle weight respectively. But it must be
understood in the light of the explanatory note added by the
Government which reads as under:
"The notification specifies the
maximum Gross Vehicle Weight and
maximum Safety Axle Weight for
various categories of transport
vehicles. It is not possible to
specify this for each make and
model because of the very large
number of models manufactured by
different manufacturers. Further
with the rapid technological
advancements in the automobile
industry new models are being added
regularly and there will be
practical difficulties and days in
the notification of these models
..........their market
introduction. However, this aspect
has been taken care of by the
requirement of certification to be
issued by the nominated testing
agencies under CMVR for each make
and model of transport vehicles
Further the schedule in this
notification covers the various
categories of vehicles, currently
manufactured in the country and
thus includes each make and model
of transport vehicle.
The notification ensures that the
maximum Gross Vehicle Weight and
the maximum safe axle weight for
registration are in accordance with
the stipulation of the Government
from the point of view of roads and
bridges. Further, it ensures that
the maximum weights permitted to be
carried by the tire are as per rule
95 CMVR. Additionally it ensures
that the vehicle manufacturers’
ratings are never exceeded as this
is fundamental for the safety and
satisfactory operation of the
transport vehicle.
The schedule in the notification
specifies the maximum gross vehicle
weight and safe axle weight. Tyre
sizes are not recommended to be
included in this schedule because
manufacturers have to choose the
appropriate size and number of
tyres from design considerations to
meet various requirements such as
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durability, ground clearance, ride
and handling, braking and steering,
road conditions, standardisation of
tyres on all the axles etc.
A reading of it would indicate that due to rapid
technology and change in the manufacture of the automobile
vehicle by the industry, several new models are being added
regularly; it is practically difficult for the Government to
specify on day-to-day the maximum vehicle weight or the
maximum axle weight which would cause delay in
implementation thereof. Therefore, the Government, having
regard to the changing manufacturing pattern and changing
situation, have decided that the manufacturer specifies the
maximum gross vehicle weight and the axle weight. It
necessarily requires to be decided by the testing agencies
specified in Rule 126 and they should act in conformity with
the provisions of the Act and the Rules and should certify
accordingly. When they so do, it in effect amounts to a
direction by the Central Government to the authorities to
comply with the provisions of the Act. Thereby, before
registration of the vehicle, after the construction of the
motor vehicle with equipment as mentioned in the Act the
Registering Authority shall be required to verify whether it
is in conformity with the provisions of the Act, Rules and
the notification. One that is done, the question of
discrimination or arbitrariness on the part of the
Registering Authority does not arise. Rule 126-A of the
Rules came into force with effect from December 30, 1993.
Therefore, any vehicle registered prior to the said date
should conform with the specifications mentioned in item
(ii) of the notification read with the Schedule attached to
Rule 95 of the Rules. Subsequent thereto, they all required
to comply with the law as enumerated hereinbefore.
Next contention is as to para (ii) of the notification.
There is no quarrel across the Bar as regards clause (ii)
thereof because it specified maximum gross vehicle weight
and the maximum safe axle weight of each vehicle
respectively as specified in the Schedule to the relevant
categories enumerated hereinbefore. A serious contention was
raised with regard to clause (iii) of the notification which
says that the maximum load permitted to be carried by the
tyre(s) as specified in Rule 95 for the size and number of
the tyres fitted on the axle(s) of the relevant make and
model would be "whichever is less" among all the three
clauses. In this behalf it is contended that some
manufacturers have given the maximum vehicle weight of 22
tonnes while Schedule I prescribes 25 tonnes as the maximum
gross vehicle weight in respect of rigid vehicle having 3
axle, two tyres on front axle and eight tyres on rear tandem
axle and the maximum safe axle weight is six tonnes on front
axle and 19 tones on rear tandem axle. This would create
incompatibility for non-registration by the registering
authorities and, therefore, it is not in conformity with the
Act. We find no force in the contention. It is seen that
each manufacturer is required to conform to the provisions
of the Act, Rules and the specifications mentioned by the
Government in that behalf. The manufacturers send them for
testing to the appropriate authority specified in Rule 126
of the Rules. When so tested what is specified in the Rules
is the maximum; but it does not mean that it should be in
excess of it. It may be less. It is seen that the Rules
indicate the minimum of weightage. Take for instance, if the
maximum axle weight is 100 tones and weightage of the tyres
fitted to it is 106 tones, it does not mean that the owner
has the right to fit his tyres in excess of the maximum safe
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axle weight given and registered in the vehicle. In other
words, in an appropriate case the maximum safe axle weight
and the maximum vehicle weight should always be conformable;
though in respect of tyres fitted into the vehicles, the
weight is variable. It should always be less than the
maximum of the safe axle weight mentioned in the certificate
of registration. The words "whichever is less" require to be
understood in that sense. Note II of Rule 95 should be
understood in this perspective. If such a construction is
adopted, in fairness, Shri Sudhir Chandra, learned senior
counsel, has stated that there may not be any impediment in
the enforcement of the provisions of the Act. We agree with
the learned counsel in that behalf. The maximum safe axle
weight would always be the criteria and the maximum vehicle
weight should normally be in conformity with the safe axle
weight so that the roadworthiness of the vehicle, the safety
of the vehicle and also the safety of the carriage of the
goods would always remains without creating any traffic
hazards. The driver would carry the good without any hiatus
in the carriage of the goods. Thus we consider that the
Government have not abdicated its controlling power under
section 58(1) of the Act.
Shri Rajiv Dhawan, learned senior counsel, has placed
reliance on a passage of Administrative Law by H.W.R. Wade
(Seventh Edition) at page 358 which reads thus:
"Closely akin to delegation, and
scarcely distinguishable from it in
some cases, is any arrangement by
which a power conferred upon the
authority is in substance exercised
by another. The proper authority
may share its power with some one
else, or may allow some one else to
dictate to it by declining to act
without their consent or by
submitting to their wishes or
instructions. The effect then is
that the discretion conferred by
Parliament is exercised, at least
in part, by the wrong authority,
and the resulting decision is ultra
vires and void. So strict are the
courts in applying this principle
that they condemn some
administrative arrangements which
must seem quite natural and proper
to those who make them. In this
class might be included the case of
the cinema licensing authority
which, by requiring films to be
approved by the British Board of
Film Censors, was held to have
surrendered its power of control
and also the case of the Police
Complaints Board, which acted as if
it were bound by a decision of the
Director of Public Prosecutions
when only required to ‘have regard’
to it. This doctrine has been
applied to voting by local
councillors.
Ministers and their departments
have several times fallen foul of
the same rule, no doubt equally to
their surprise. The Minister of
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Housing and Local Government made
it a rule to refuse planning
permissions for gravel working on
top-class agricultural land
whenever the application was
opposed by the Minister of
Agriculture. The court held that
this was to put the decisive power
into the hands of the wrong
minister and that a decision so
taken must be quashed. Similarly
the court invalidated a
reinstatement order made under
wartime labour regulations by a
national service officer, who was
empowered to direct reinstatement
of workers dismissed for
misconduct. For the officer was
acting under directions from the
minister, whereas he was a
statutory authority in his own
right and should have exercised his
personal discretion."
It is seen from the above passage that the proper
authority who has been empowered to exercise the power, has
abdicated its power in its exercise of the discretion vested
by the Parliament in its administrative actions. The author
has stated that the Parliament having given the discretion
to the authorities, they cannot abdicate its power to the
officers to exercise that power. Similar is the case of the
British Censor Board etc. It is seen that the said passage
is inapplicable to the facts of this case. As stated
earlier, the Act itself regulates the manner in which the
vehicles are to be constructed, equipped fitted and
maintained and various indicia have been prescribed in that
behalf. The manufacturer is required to conform to the
specifications. As stated earlier, Rule 95 of the Rules
specifies the size of the tyres of the motor vehicles
specified in Column 1 of the Schedule. Rating is specified
in the corresponding entry in column (2) of the Schedule and
the maximum weight permitted to be carried by such tyres is
specified in column 3. The relevant columns specify each
type of tyres.
It is true that Note (ii) of the notification which
gives the above maximum weightage in respect of tyres of
transport vehicle goods, shall be applicable subject to the
conditions that the axle load does not exceed 6% of the
permitted limit. They apply in relation to the registered
axle weight recorded in the certificate of registration of
the vehicle. As stated earlier, this is only to indicate
that the axle load should not exceed 6% or it should always
be above the safe axle load specified in the Rules. As
stated earlier, the safe axle load would always be the
determining factor since roadworthiness and safety would
hinge upon the axle load vis-a-vis the tyres fitted to the
axles as specified in the Act.
This it could be seen that the Central Government have
not abdicated their power of control and prescribing
specification under Section 58 of the Act nor it is a
delegation of the manufacturer. Therefore, we do not find
any illegality in the order passed by the High Court
warranting interference.
The appeals and the writ petition are accordingly
dismissed. No costs.
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