Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) No.3265 of 2012

Chairman, Rajasthan State Road Transport …Petitioners

Corporation & Ors.

Versus

Smt. Santosh & Ors. …Respondents

O R D E R

1.Originally this petition had been filed challenging the judgment

and order of the Rajasthan High Court dated 21.9.2011 passed in S.B.

Civil Misc. Appeal No. 480 of 2001, wherein the complete liability of

providing compensation in a vehicular accident had been fixed upon

the appellant-Rajasthan State Road Transport Corporation (hereinafter

referred to as the ‘RSRTC’), while unfastening the liability of the

driver and the owner of the vehicle, known as ‘Jugaad’, under the

provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as

the ‘Act’).

Page 2 2.At the time of hearing the petition, this court vide order dated

6.2.2012 did not consider it proper to examine the issue in respect of

compensation. However, the question was raised by Shri 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.

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Page 3 It must have a registration and insurance and the driver must have a

valid driving license and in case of an accident etc, the liability under

the provisions of the Act, may be properly determined. However, Shri

Raval has raised a grievance that in spite of issuance of such a

circular, most of the States have not enforced the terms of the said

circular issued by the Central Government.

3.Considering the aforesaid grievance raised by Shri Raval, this

court impleaded the Transport Secretary/Commissioner of all the

States as party respondents and asked them to submit their response.

While some of the States have submitted that it is not a vehicle within

the meaning of the provisions of Section 2(28) of the Act. The State of

Karnataka has submitted the vehicle like ‘Jugaad’ was not in existence

in the State.

4.It has further been pointed out by learned counsel for the parties

that enforcement of the provisions of the Act and the rules framed

under it, come within the jurisdiction of the State Governments.

Therefore, they must be directed to ensure strict compliance of the

said provisions of the Act. It has also been pointed out by Shri

Siddharth Luthra, learned ASG that a letter dated 19.7.2012 was sent

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Page 4 by the Director (RT) of the Ministry of Road Transport & Highways,

Government of India, to all the State Authorities to ensure compliance

of the statutory provisions of the Act and the rules.

5.Shri Manish Singhvi, learned senior counsel appearing for the

State of Rajasthan has submitted that the government of Rajasthan has

examined the matter and decided to prohibit the plying of “Jugaad” on

the roads completely. Such a vehicle cannot be used for any

commercial purpose, without being registered and duly insured and in

compliance with the other statutory requirements. However, the State

Government carved out an exception that farmers/poor villagers may

be permitted to use the same for their agricultural purposes as an

interim measure till the rules are framed in this regard. It has further

been submitted that in case ‘Jugaads’ are found plying on the roads,

they shall be impounded and will be dealt with strictly in accordance

with law. A similar stand has been taken by the majority of the States.

6.An application has been filed by Rashtriya Kisan Morcha, for

impleadment/intervention which is allowed. The Morcha raised a

grievance that in case plying of the ‘Jugaad’ is prohibited completely,

it will create a serious problem for the farmers, as seizure/impounding

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Page 5 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 legislation by the court is concerned, as a corollary

to the doctrine of separation of powers, a judge merely applies the law

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Page 6 that it gets from the legislature. Consequently, the Anglo-Saxon legal

tradition has insisted that the judge only reflects the law regardless of

the anticipated consequences, considerations of fairness or public

policy. He is simply not authorised to legislate.

9.In kindred spirit, in M. Nagaraj & Ors. v. Union of India &

Ors., AIR 2007 SC 71, Justice Kapadia, writing for the Constitutional

Bench, observed:

“The Constitution is not an ephemeral legal document

embodying a set of legal rules for the passing hour. It

sets out principles for an expanding future and is

intended to endure for ages to come and consequently to

be adopted to the various crisis of human affairs. . . . A

constitutional provision must be construed not in a

narrow and constricted sense but in a wide and liberal

manner so as to anticipate and take account of changing

conditions and purposes so that a constitutional

provision does not get fossilized but remains flexible

enough to meet the newly emerging problems and

challenges.”

10.Accordingly, in State of U.P. & Ors. v. Jeet S. Bisht & Anr.,

(2007) 6 SCC 586, even though the matter was referred to another

Bench, owing to a split decision—Justice S.B. Sinha aptly described

the modern understanding of the separation of powers thus:

“Separation of power in one sense is a limit on active

jurisdiction of each organ. But it has another deeper and

more relevant purpose: to act as check and balance over

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Page 7 the activities of other organs. Thereby the active

jurisdiction of the organ is not challenged; nevertheless

there are methods of prodding to communicate the

institution of its excesses and shortfall in duty. . .

.Separation of power doctrine has been reinvented in

modern times. . . . The modern view, which is today

gathering momentum in Constitutional Courts world

over, is not only to demarcate the realm of functioning in

a negative sense, but also to define the minimum content

of the demarcated realm of functioning.”

11.In Dayaram v. Sudhir Batham & Ors., (2012) 1 SCC 333,

this Court doubted the competence of this Court to issue such

directions, which were allegedly to be legislative in nature. Therefore,

the matter was referred to a larger bench, and such larger bench held,

that in exercise of the 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.

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Page 8 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 & Ors. v. State of Rajasthan & Ors., AIR 1997

SC 3011, this Court held:

“In view of the above, and the absence of enacted law to

provide for the effective enforcement of the basic human

right of gender equality and guarantee against sexual

harassment and abuse, more particularly against sexual

harassment at work places, we lay down the guidelines

and norms specified hereinafter for due observance at all

workplaces or other institutions, until a legislation is

enacted for the purpose. This is done in exercise of the

power available under Article 32 of the Constitution for

enforcement of the fundamental rights and it is further

emphasised that this would be treated as the law

declared by this Court under Article 141 of the

Constitution.”

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Page 9 14.Providing further reinforcement to the Article 32 jurisprudence,

in Vineet Narain v. Union of India, AIR 1998 SC 889, this Court

noted that the issuance of guidelines and directions, in the exercise of

the powers under Articles 32 and 142, has become an integral part of

our constitutional jurisprudence. It also pointed out that such an

exercise of powers was absolutely necessary to fill the void in areas

with legislative vacuum. In addition, the Court noted:

“As pointed out in Vishaka (supra), it is the duty of the

executive to fill the vacuum by executive orders because

its field is co-terminus with that the legislature, and

where there is inaction even by the executive for

whatever reason, the judiciary must step in, in exercise

of its constitutional obligations under the aforesaid

provisions to provide absolution till such time as the

legislature acts to perform its role by enacting proper

legislation to cover the field.

On this basis, we now proceed to give the directions

enumerated hereafter for rigid compliance till such time

as the legislature steps in to substitute them by proper

legislation. These directions made under Article 32 read

with Article 142 to implement the rule of law wherein the

concept of equality enshrined in Article 14 is embedded,

have the force of law under Article 141 and by virtue of

Article 144 it is the duty of all authorities, civil and

judicial, in the territory of India to act in aid of this

Court.”

(See also: L.K. Pandey v. Union of India & Anr., AIR 1986 SC 272;

D.K. Basu v. State of West Bengal, AIR 1997 SC 610;

Ramamurthy v. State of Karnataka, AIR 1997 SC 1739; Supreme

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Page 10 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.

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Page 11 17.In M.K. Kunhimohammed v. P.A. Ahmedkutty & Ors., AIR

1987 SC 2158, this Court has made certain suggestions to raise the

limit of compensation payable as a result of vehicular accidents in

respect of death and permanent disablement in the event of their being

no proof of fault on the part of the person involved in the accident and

also in hit and run motor accidents. In this case, the court also

suggested the removal of certain disparities in the liability of the

insurer to pay compensation. The said recommendations/suggestions

were also taken into consideration and incorporated in the Act.

18.The object of bringing and repealing the Act 1939 had been to

rationalise certain definitions with additions of certain new definitions

of new types of vehicles, strict procedures relating to grant of driving

licenses and period of validity thereof; standards of anti-pollution

control devices; provisions for issuance of fitness certificates of

vehicles and provision for enhancing compensation in case of no fault

liability and in hit and run vehicular accidents and also maintenance

of State register for driving licenses and vehicles registration.

19.Section 2(2) of the Act defines articulated vehicle which means

a motor vehicle to which a semi-trailer is attached; Section 2(34)

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Page 12 defines public place; Section 2(44) defines `tractor’ as a motor vehicle

which is not itself constructed to carry any load; Section 2(46) defines

`trailer’ which means any vehicle, other than a semi-trailer and a side-

car, drawn or intended to be drawn by a motor vehicle.

Section 3 of the Act provides for necessity for driving license;

Section 5 provides for responsibility of owners of the vehicle for

contravention of Sections 3 and 4; Section 6 provides for restrictions

on the holding of driving license; Section 56 provides for compulsion

for having certificate of fitness for transport vehicles; Section 59

empowers the State to fix the age limit of the vehicles; Section 66

provides for necessity for permits to ply any vehicle for any

commercial purpose; Section 67 empowers the State to control road

transport; Section 112 provides for limits of speed; Sections 133 and

134 imposes a duty on the owners and the drivers of the vehicles in

case of accident and injury to a person; Section 146 provides that no

person shall use any vehicle at a public place unless the vehicle is

insured. In addition thereto, the Motor Vehicle Taxation Act provides

for imposition of passenger tax and road tax etc.

20.Section 2(28) of the Act defines “Motor Vehicle” as under:

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Page 13 “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 registration mark assigned to a trailer

is required to be displaced on the side of the drawing

vehicle. In the present case, we are not concerned with

tractors in the conventional sense. Even the legislature

has used the word "drawing vehicle" in place of tractors.

Under Section 61(3), it is provided that no person shall

drive a motor vehicle to which a trailer is attached

unless the registration mark of the motor vehicle is

displayed on the trailer. Similarly, under Section 66 in

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Page 14 Chapter V which refers to control of transport vehicles,

no owner of a motor vehicle can use the vehicle as a

transport vehicle carrying passengers or goods without a

permit. Under Section 66(2), the holder of a goods

carriage permit may use the vehicle for drawing any

trailer. Therefore, under the M.V. Act, 1988, the

Parliament has kept in mind the existence of a vehicle

classifiable as "tractor-trailer"…

Section 2(28) is a comprehensive definition of the

words "motor vehicle". Although, a "trailer" is

separately defined under Section 2(46) to mean any

vehicle drawn or intended to be drawn by motor vehicle,

it is still included into the definition of the words "motor

vehicle" under Section 2(28). Similarly, the word

"tractor" is defined in Section 2(44) to mean a motor

vehicle which is not itself constructed to carry any load.

Therefore, the words "motor vehicle" have been defined

in the comprehensive sense by the legislature. Therefore,

we have to read the words "motor vehicle" in the

broadest possible sense keeping in mind that the Act has

been enacted in order to keep control over motor

vehicles, transport vehicles etc. A combined reading of

the definitions under Section 2, …….. shows that the

definition of "motor vehicle" includes any mechanically

propelled vehicle apt for use upon roads irrespective of

the source of power and it includes a trailer. Therefore,

even though a trailer is drawn by a motor vehicle, it by

itself being a motor vehicle, the tractor- trailer would

constitute a "goods carriage" under Section 2(14) and

consequently, a "transport vehicle" under Section 2(47).

The test to be applied in such a case is whether the

vehicle is proposed to be used for transporting goods

from one place to another. When a vehicle is so altered

or prepared that it becomes apt for use for transporting

goods, it can be stated that it is adapted for the carriage

of goods. Applying the 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.”

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Page 15 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 meaning is only used for agricultural purposes and, thus,

is not a Motor Vehicle as defined under the Act. The Tractor is a

Motor Vehicle is also proved by this definition under Section 2(44) of

the Act. Different types of Motor Vehicles have been defined under

the provisions of the Act, and the Tractor is one of them. Thus,

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Page 16 considering the question from any angle, the Tractor is a Motor

Vehicle as defined under the Act.

23.Section 3 of the Act casts an obligation on a driver to hold an

effective driving license for the type of vehicle which he intends to

drive. Section 10 of the Act enables the Central Government to

prescribe forms of driving licenses for various categories of vehicles

mentioned in sub-section (2) of the said Section. The definition clause

in Section 2 of the Act defines various categories of vehicles which

are covered in broad types mentioned in sub-section (2) of Section 10.

They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger

motor vehicle', 'invalid carriage', 'light motor vehicle', 'maxi-cab',

'medium goods vehicle', 'medium passenger motor vehicle', 'motor-

cab', 'motorcycle', 'omnibus', 'private service vehicle', 'semi-trailer',

'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'.

24.The Allahabad High Court in Writ Tax No. 573 of 2011-

Kishun Ram v. State of U.P. & Ors., held that ‘Jugaad’ was

squarely covered under the definition of motor vehicles as specified

under Section 2(28) of the Act, since it was mechanically propelled

adapted for use on road and hence other relevant provisions of the

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Page 17 Act/rules were applicable. The Court further directed that as the said

vehicle did not comply with the provisions of the Act/Rules, the

seizure effected by the U.P. authorities could not be interfered with by

the court.

25.Further, in Writ Petition No. 6611(M/B) of 2005 - Avnish

Kumar v. State of U.P. & Ors. decided on 23.2.2011, the Allahabad

High Court has issued directions to the statutory authorities to ensure

compliance of the provisions of the Act and the rules, and to prevent

the illegal plying of such vehicles, the statutory Authorities must take

effective measures in conformity with the statutory rules.

26.Learned standing counsel appearing for the State of Haryana

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

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Page 18 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 case any ‘Jugaad’ is

found on the road and is seized by the police authorities, it could not

be released in favour of its owner either by the law enforcing agency

or even by the Magistrate. Plying of such vehicles was in utter

disregard/violation of the provisions of the Act and the rules framed

thereunder.

28.As to whether a particular vehicle can be defined as motor

vehicle in terms of Section 2(28) of the Act, is to be determined on the

facts of each case taking into consideration the use of the vehicle and

its suitability for being used upon the road. Once it is found to be

suitable for being used on the road, it is immaterial whether it runs on

the public road or private road, for the reason, that actual user for a

particular purpose, is no criteria to decide the name. Definition of

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Page 19 motor vehicle takes within its ambit, a dumper and tractor. Tractor

which is used basically for agricultural purpose and a dumper is used

in the factory premises, can suitable be adapted for being used on the

road, therefore, they will meet the requirement of definition of motor

vehicle under Section 2(28) of the Act. The word `only’ used in

Section 2(28) of the Act clearly shows that the exemption is confined

only to those kinds of vehicles which are exclusively being used in a

factory or in any closed premises. Thus, a vehicle which is not

adapted for use upon the road, is only to be excluded.

29.However, Shri S.C. Maheshwari, learned senior counsel

appearing for the applicant could not satisfactorily reply as under what

circumstances, if the tractor which is exclusively used for agricultural

purpose, does require registration and insurance and driver also

require a driving license, why the same provisions would not apply in

case of `Jugaad’.

30.‘Jugaad’ does not require the permit, insurance or a driving

licence for its driver. There is no specification for its body. It does not

require fitness certificate. However, passenger vehicle has a upper

limit of number of passengers it can carry. The same remains the

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Page 20 position for the goods vehicle as there is a specification for the

maximum load it can carry. The ‘Jugaad’ is not liable to pay any

passenger or road tax like other vehicles.

31.In view of the above, as the `Jugaad’ is covered in the definition

of the motor vehicle under Section 2(28) of the Act, the

statutory authorities cannot escape from their duty to enforce

the law and restrain the plying of `Jugaad’. The statutory

authorities must ensure that `Jugaad’ can be plied only after

meeting the requirements of the Act. The same has become a

menace to public safety as they are causing a very large number

of accidents. ‘Jugaads’ are not insured and the owners of the

`Jugaad’ generally do not have the financial capacity to pay

compensation to persons who suffer disablement and to

dependents of those, who lose life. Thus, considering the

gravity of the circumstances, the statutory authorities must give

strict adherence to the circular referred to hereinabove by the

Central Government.

32.However, we clarify that it is open to the statutory authorities to

make exemptions by issuing a notification/circular specifically if such

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Page 21 a vehicle is exclusively used for agricultural purposes but for that

sufficient specifications have to be provided so that it cannot be used

for commercial purposes.

The matter is closed now.

………………………………..................................J.

(Dr. B.S. CHAUHAN)

………………………………...................................J.

(FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI,

May 10, 2013.

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