TaxTMI 
TaxTMI 
2013 (5) TMI 965
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....hri Imtiaz Ahmed, learned counsel appearing for the RSRTC that this court must examine whether 'Jugaad' is a vehicle under the Act, and in case, it is a motor vehicle under Section 2(28) of the Act, whether such 'Jugaad' is required to be insured and registered before it is permitted to ply on the road and whether the driver of 'Jugaad' must compulsorily have a driving licence. As such important issues have been raised by Shri Imtiaz Ahmed, we had requested Shri H.P. Raval, learned ASG to assist the court, after taking instructions from the Road Transport Ministry of the Central Government about the status of 'Jugaad' under the Act. Shri Raval responded to the aforesaid queries on 13.4.2012 and submitted that it is a motor vehicle as defined under Section 2(28) of the Act, and the Ministry of Shipping, Road Transport and Highways had issued a circular dated 26.7.2007 issuing instructions to all State transport authorities clarifying that 'Jugaad' is a vehicle under Section 2(28) of the Act and all the States are under a legal obligation to enforce the same. Therefore, no person should be permitted to ply a 'Jugaad' as it violates all the provisions of the Act. It must have a regist....
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.... prohibited completely, it will create a serious problem for the farmers, as seizure/impounding of "Jugaad" would have penal consequences. The 'Jugaad' is nothing, but an improved version of a bullock cart which has been used for centuries in the villages. The farmer communities should not be restrained from using the improved carts/jugaad in the villages to and from houses to the farms and for bringing the agricultural produces from their agricultural lands. 7. Some of the lawyers have raised the issue that issuing any kind of direction by this Court in these regards would amount to legislation which is not permissible in law. Thus, they have suggested that instead of issuing the directions, the Central Government and the State authorities be directed to frame a policy, amend the rules specifically and enforce the same. However, other lawyers have opposed this view and submitted that the issue involved herein is restricted only with enforcement of law and not with legislation. As the "Jugaad" is a vehicle within the meaning of Section 2(28) of the Act. 8. We have considered the rival submissions made by learned counsel for the parties and perused the record. So far as the....
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....e powers conferred upon it by Article 32 r/w Article 142 of the Constitution, the directions issued by this Court were valid and laudable, as the same had been made to fill the vacuum that existed in the absence of any legislation, to ensure that only genuine SC/ST and OBC candidates would be able to secure the benefits of certificates issued, and that bogus candidates would be kept out. Simply filling up an existing vacuum till the legislature chooses to make appropriate laws, does not amount to taking over the functions of the legislature. 12. In its activist streak, this Court has also imparted new vigour to the process of constitutional interpretation. For instance, this Court has insightfully identified Article 32 as the constitutional provision that provides for the enforcement of fundamental rights in areas of legislative vacuum. Not only has it held that fundamental rights are limitations upon the State power, but the right to constitutional remedies is itself a fundamental right enshrined in Article 32 of the Constitution, and in the case of an infringement of a fundamental right by the State, an aggrieved party can approach this Court for a remedy. 13. In Vishaka & ....
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....upreme Court Bar Association v. Union of India, AIR 1998 SC 1895; and Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2005 SC 972). 15. Thus, the aforesaid cases clearly reveal that the courts in India have not violated the mandatory constitutional requirement, rather they have only issued certain directions to meet the exigencies. Some of them are admittedly legislative in nature, but the same have been issued only to fill up the existing vacuum, till the legislature enacts a particular law to deal with the situation. In view of the same, it is permissible to issue directions if the law does not provide a solution of a problem, as an interim measure, till the proper law is enacted by the legislature. We may also issue necessary directions as an interim measure, if the need so arisen. 16. The Act replaced the Motor Vehicles Act, 1939, in view of the changes in transport technology, pattern of passenger and freight movements, taking into consideration the road safety standards, pollution control measures, standards in transportation of hazardous and explosive materials. 17. In M.K. Kunhimohammed v. P.A. Ahmedkutty & Ors., AIR 1987 SC 2158, this Court has made certain suggest....
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....tc. 20. Section 2(28) of the Act defines "Motor Vehicle" as under: "Motor Vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty five cubic centimeters." (Emphasis added) Thus, any vehicle which is mechanically propelled and adapted for use upon roads and does not fall within the exceptions provided therein, is a Motor Vehicle within the meaning of Section 2(28) of the Act. 21. In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors., AIR 2005 SC 3428, this Court dealt with the issue while dealing with "Tractor" and held as under: "Under Section 61 of the 1988 Act, which comes within Chapter IV dealing with registration of motor vehicles, registration of trailers is made compulsory. Under Section 61(2), the registra....
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....above test, ....... the tractor- trailer ...... falls under Section 2(14) as a "goods carriage" and consequently, it falls under the definition of "transport vehicle" under Section 2(47) of the M.V. Act, 1988." 22. The Tractor is a machine run by diesel or petrol. It is a self- propelled vehicle for hauling other vehicles. It is used for different purposes. It is also used for agricultural purposes, along with other implements; such as harrows, ploughs, tillers, blade-terracers, seed- drills etc. It is a self-propelled vehicle capable of pulling alone as defined under the definition of Motor Vehicles. It does not fall within any of the exclusions as defined under the Act. Thus, it is a Motor Vehicle in terms of the definition under Section 2(28) of the Act, which definition has been adopted by the Act. So, even without referring to the definition of the Tractor, if the definition of the Motor Vehicle as given under the Act is strictly construed, even then the Tractor is a Motor Vehicle as defined under the Act. The Tractor is not only used for agricultural purposes but is also used for other purposes as stated above. Therefore, it cannot be said that the Tractor in its popular m....
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....yana has submitted that even the Punjab and Haryana High Court while delivering the judgment as early as 29.3.1995 had directed the State authorities to ensure that no 'Jugaad' shall be permitted to ply in the State of Haryana under any circumstance. The relevant part of the said judgment reads as under: "An interim direction is issued that no such Jugars shall be permitted to ply in the State of Haryana under any circumstance. All such Jugars being plied shall be seized by the concerned law enforcing agencies of the State. Since the aforesaid vehicles are being plied against the provisions of law and these vehicles are not recognised under the Motor Vehicles Act, the same cannot be released in favour of a person, who is not even admitted to be the registered owner of such vehicle. Despite directions, we have not been intimated as to how such unauthorised vehicles were ordered to be released and by whom. Prima facie, it appears to us that the aforesaid Jugars could not be released either by the law enforcing agencies or by the Magistrates." (Emphasis added) 27. As such 'Jugaads' were being plied against the provisions of the Act and the rules framed under it, and in cas....