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Sudipa Nath v/s Sriram Tarani Kanti & Others

    Cont.Cas(C) No.30 of 2022
    Decided On, 21 September 2022
    At, High Court of Tripura
    By, THE HONOURABLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY & THE HONOURABLE MR. JUSTICE S.G. CHATTOPADHYAY
    For the Petitioner: R. Guha, J. Borah, R. Sarmah, Advocates. For the Respondents: A. Majumder, Sr. Advocate, Bidyut Majumder, Asstt. S.G., Debalay Bhattacharjee, G.A., S. Ghosh, Advocate, Soumyadeep Saha, Advocate.


Judgment Text
Indrajit Mahanty, C.J.

1. The petitioner seeks initiation of contempt proceedings against the respondents for willfully disobeying/disregarding the directions of this Court issued vide order dated 21.12.2021 in WP(C)(PIL) No.30 of 2021, titled as Smt. Sudipa Nath v. Union of India & Ors.

2. PIL was filed by the petitioner herein, inter alia, stating that the Central Government of India, through its various Ministries and Departments has recognized the need to shift to electric vehicles and away from carbon based fuels to ensure protection of the environment. In this regard the Central Government, has taken various initiatives, including but not limited to framing of policies, grant of incentives, and carrying out amendments to the Motor Vehicles Act and Rules framed thereunder. Department of Heavy Industry, had launched schemes, namely Faster Adoption and Manufacturing of (Hybrid &) Electric Vehicles in India (FAME India), for promotion of electric and hybrid vehicles. Another Scheme for Faster Adoption and Manufacturing of Electric Vehicles in India Phase II (FAME India Phase II) was issued with the approval of Union Cabinet for setting up of charging infrastructure, and creating information, education and communication networks for publicity to electric vehicles. One of the stated objectives of the scheme is for faster adoption of electric mobility and development of its manufacturing eco-system in the country. Similarly, the Union of India, through the Ministry of Road Transport and Highways, made amendments in the Central Motor Vehicle Rules 1989. Respondent No.1 also issued a standard operating procedure for the process of registration of vehicles imported by the vehicle manufacturers or through their authorized representatives in India. The petitioner sought directions in public interest to the State of Tripura to forthwith take steps to implement and ensure the effective adoption of the steps identified by the FAME India Phase II scheme issued by the Union of India and to take actions in line with the aforesaid policies, without which the public and residents of the state would not receive the benefits envisaged in an efficient and timely manner. The writ petition sought further directions to the respondents No.1, 2 and the Central Institute of Road Transport, Pune (“CIRT”), to implement the initiatives made by the Central Government in their true spirit by recognizing internationally available and recognized electric vehicles for direct import into India to ensure faster and more effective translation of the policy into reality.

3. It was further highlighted that owing to the distance range issues with currently available batteries, coupled with the meager amount of public charging infrastructure for as on date, there was a general discomfort amongst consumers in purchasing electric vehicles. One of the methods developed to overcome such discomfort, was to put in an electric vehicle, a fuel powered electric generator, that could charge the battery in case of emergencies where charging stations were not readily available during travel. Such a generator/charger, though working on fuel, would not provide traction energy to the motor, but would only charge the battery in case of emergencies to ensure that a consumer was not left stranded. In this context the specific instance of London Taxis presently run on the said technology in United Kingdom and Europe was highlighted. It was however informed that contrary to Rule 2(u), the same was classified as “Hybrid Electric Vehicle” rather than a “Battery Operated Vehicle” by CIRT, so as to deny the incentives promised by the Government.

4. Vide Order dated 21.12.2021, the said PIL was disposed of inter alia with the following observations-

“The present PIL has come to be filed by the petitioner seeking a direction to the State of Tripura to frame a comprehensive electric vehicle policy so as to ensure that the objective of environmental protection through promotion of non-carbon fuel based vehicles be achieved in an efficient and timely manner and in public interest. Further prayer has been made to all the respondents to effectively adopt the scheme for Faster Adoption and Manufacturing of Electric Vehicles in India Phase II (FAME India Phase II) issued by the Union of India on 8th March, 2019 and further a direction has been sought to the respondent No.5, i.e. the Central Institute of Road Transport to set aside the certification made by the respondent No.4 of the London Taxi Model Tx vehicle as a hybrid vehicle.”

“10. It further need be noted that Annexure-C to AIS-049 defines “Pure electric vehicle” to mean “vehicle powered by an electric power train only”. It is asserted that the London Taxi Model Tx is driven by an electric drive train only and traction energy is supplied exclusively by the traction battery which operates the electric motor. It is stated that the said vehicle comes along with a small 1.5 litre “Range Extender generator” which it is asserted can only be used to charge the battery when required in an emergent situation so that the vehicle is not left stranded due to lack of any public charging infrastructure for charging of the battery. It is further asserted that the 1.5 litre Range Extender generator cannot and does not provide traction energy to the motor for propulsion of the vehicle in question. It is further averred that certain erroneous decisions of the CIRT i.e. respondent No.5 certifying the London Taxi Model Tx as a hybrid vehicle and not as an electric vehicle to disentitle this vehicle from receiving any benefit of such classification and prayer has been made seeking a direction to the CIRT, respondent No.5 to correctly apply the definition for battery operated vehicle as contained in the Motor Vehicles Rules and in AIS-053 and Annexure-C to AIS-049 which defines “Pure electric vehicle” since this would also be in consonance with the customs tariff classification, i.e. tariff entry No.8703-80 “other vehicles, vehicles with only electric motor for propulsion”.

“11. Consequently, we dispose of the writ petition with the following directions:

(i) The respondent-State of Tripura is directed to take urgent steps in public interest to implement and adopt necessary steps under the scheme of FAME India Phase II issued by the Union of India on 08.03.2019 and frame a comprehensive electric vehicle policy for the State of Tripura in order to achieve the objective of environmental protection through promotion of non-carbon fuel based vehicles in an efficient and timely manner.

(ii) The respondent No.5, the Central Institute of Road Transport, is directed to forthwith reconsider the certification process for electric vehicles so that it is in tune with Rule 2(u) of the Motor Vehicles Rules, 1989, AIS-053 and Annexure-C to AIS-049 and further reconsider the certification of London Taxi Model Tx with Range Extender generator from hybrid to electric/battery operated vehicle if the said vehicle is propelled exclusively by battery operated electric motor as claimed by the petitioner and communicate its decision taken to the petitioner by a reasoned order within two weeks from today.”

…………………(emphasis supplied)

5. The petitioner thus requested CIRT for compliance with the said order dated 21.12.2021 passed by this Court.

6. In response, on 12.01.2022, the CIRT wrote to the petitioner herein reiterating its original stand on the issue for denying certification of the subject vehicle London Taxi Model Tx with Range Extender generator as a “Battery operated Vehicle”. It was stated that the UK based test agency has issued Whole Vehicle Type Approval dated 14/12/2020 designating the subject vehicle as Onboard Vehicle Charging Hybrid Electric Vehicles (OVC-HEV) at 3.4.1 of Whole Vehicle Type Approval certificate. A letter from VCA also stated that the subject vehicle was OVC-HEV. Therefore, the vehicle cannot be registered as Battery Operated Vehicle/Pure Electric Vehicle. Despite the directions, scope and applicability of Rule 2(u) of the Motor Vehicles Rules, 1989, AIS-053 and Annexure-C to AIS-049 the CIRT was not considered for considering whether the vehicle can be registered as “Battery Operated Vehicle/Pure Electric Vehicle”.

7. Aggrieved thereby, the petitioner preferred the instant Contempt Petition alleging deliberate non-compliance and willful defiance of the order dated 21.12.2021 passed by this Court.

8. Response affidavits were filed by the respondents. The stand taken by the respondents in affidavit is that the subject vehicle London Taxi Model Tx with Range Extender generator is a serial hybrid vehicle. The Vehicle Certification Agency, United Kingdom has also designated the subject vehicle as a hybrid electric vehicle in the Type Approval Certificate dated 14.12.2020. The stand taken in the affidavit of the Under Secretary to the Govt. of India in the Ministry of Road Transport and Highways is mainly as under-

“7. That, it is further submitted that as per Rule 2(u) of CMV Rules, 1989- “Battery Operated Vehicle” means a vehicle adapted for use upon roads and powered exclusively by an electric motor whose traction energy is supplied exclusively by traction battery installed in the vehicle”……..TX London Taxi cannot and ought not to be classified as a “Battery Operated Vehicle”, for the simple reason that it utilizes an internal combustion engine, which engine in turn provides energy to the battery to propel the vehicle. Therefore, traction energy in a TX London Taxi is not exclusively supplied by a traction battery. The spirit and intent of the Rule 2(u) is that the vehicle has only one energy storage system for the purpose of vehicle propulsion, there are no tail pipe emissions, and the vehicle is powered by electric power train exclusively. In the present case, when the battery of the vehicle drains out and it requires charging through the onboard internal combustion engine, the vehicle emits tailpipe emissions.”

……………….(emphasis supplied)

9. Parties were heard and records were carefully perused.

10. The issue that needs consideration is as to whether the respondents complied with the directions and took a decision in tune with Rule 2(u) of the Motor Vehicles Rules, 1989, AIS-053 and Annexure-C to AIS-049, and if the said vehicle is propelled exclusively by battery operated electric motor, whether the respondents complied with the direction to consider the certification of London Taxi Model Tx with Range Extender generator from hybrid to electric/battery operated vehicle in letter and spirit.

11. By GSR 352(E) dated May 27, 2021, Central Government has sought to amend the Central Motor Vehicle Rules, 1989 to include in Rule 81, the following language:

“Provided further that, for the Battery Operated Vehicles as defined in rule 2(u); the items given at Sl. No.4 of the below mentioned TABLE shall be exempted from the payment of fees for the purpose of issue or renewal of registration certificate and assignment of new registration mark.”

………………..(emphasis supplied)

12. Clearly, the intent of the Central Governments is to promote the propagation and adoption of Battery Operated Vehicles in the country.

13. Rules 2(u) of the Motor Vehicles Rules, defines a Battery Operated vehicle as under:

“(u) “Battery Operated Vehicle” means a vehicle adapted for use upon roads and powered exclusively by an electric motor whose traction energy is supplied exclusively by traction battery installed in the vehicle: …..”

……………(emphasis supplied)

14. It is fairly accepted by the respondents that the subject vehicle is powered exclusively by a battery operated electric motor, and that the traction energy of said electric motor is supplied exclusively by traction battery installed on the vehicle. It is candidly admitted by the respondents that the on board range extender generator can only charge the said traction battery installed on the vehicle, and that this generator cannot mechanically propel the vehicle at all. Therefore, we are satisfied that the subject vehicle complies with the definition of “Battery Operated Vehicle” in Rule 2(u) of CMVR, 1989.

15. Annexure C to AIS-049 defines pure electric vehicle as under:

“Pure electric vehicle” means vehicle powered by an electric power train only;”

16. We have also perused the EC Type Approval Certificate which is referred by respondents to deny the classification of vehicle as “Battery Operated / Pure Electric”. Serial No.3.4.3.1.1 of even the said EC Type Approval Certificate clearly certifies the vehicle as “Pure Electric” by recording as follows-

“3.4.3.1.1 Pure Electric: yes/no - Yes”

17. The letter dated 26-Apr-2021 issued by the VCA, which is relied by the respondents to urge that the subject vehicle is an Onboard Vehicle Charging Hybrid Electric Vehicle, also states that- “The onboard internal combustion engine (ICE) has not direct drive connection to the road wheels and can only be used to charge the onboard battery.”

18. It is not even in dispute that the subject vehicle is powered only by electric power train. Therefore, as per AIS-049 the subject vehicle is covered under the definition of pure electric vehicle.

19. We have also seen that even the Customs Department in Bill of Entry no.2004338 dt. 17.12.2020 has correctly classified the subject imported vehicle London Taxi LEVC Model TX with Range Extender under CTH 8703 80, which is for “Other vehicles, with only electric motor for propulsion”. Significantly, even the Customs Department has rightly not classified the subject vehicle under CTH 8703 70 which is for “Other vehicles, with both compression-ignition internal combustion piston engine (diesel or semi diesel) and electric motors as motors for propulsion, capable of being charged by plugging to external source of electric power”.

20. The AIS-053 defines a hybrid electric vehicle as under:

“Hybrid Electric Vehicles (HEV)” means vehicle in which “power train” comprises a combination of two different drive train types:

* an internal combustion engine, and

* one (or several) electric drive train(s) HEV for the purpose of mechanical propulsion, draws energy from both of the following on-vehicle sources of stored energy/power:

* a consumable fuel

* an electrical energy/power storage device (e.g.: battery, capacitor, flywheel/generator etc.)”

……….(emphasis supplied)

21. Even by the aforesaid definitions in AIS-053, a vehicle that does not draw energy from a consumable fuel for mechanical propulsion, but only uses electrical energy for mechanical propulsion, cannot be classified as a “hybrid electric vehicle”. It is thus clear that even as per AIS-053 the subject vehicle is not a “hybrid electric vehicle”.

22. Despite the subject vehicle complying with requirements of Rule 2(u), it is erroneously contended by the respondents that the vehicle may be considered as Hybrid Electric Vehicle. While it is claimed by the respondents that AIS-049 and AIS-053 are to be ignored completely, reference was made by respondents to AIS-102 (Part II).

23. However, the Scope of the AIS 102 (Part 2) as mentioned in its first paragraph is as under:

“1.0 SCOPE

This standard is applicable to hybrid electric vehicles of M and N category of vehicles as defined in AIS-053, whose GVW exceeds 3500 kg.” A reading of the aforesaid scope of AIS-102 (Part 2) clearly shows its application only to particular “hybrid electric vehicle” as defined in AIS-053.

24. Even if Rule 2(u) is strictly applied, such approach taken by the respondents is against the plain language of the said statutory rule. It is also against the policy of the Central Government which is to extend incentives for promoting man

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ufacture, use, import, sale and registration of the Battery Operated Vehicles as defined in rule 2(u). 25. It is fairly accepted by the respondents that in the subject vehicle the onboard generator can only charge the traction battery of the vehicle and it cannot be used to mechanically propel the vehicle at all. Such a generator/charger, though working on fuel, would only charge the traction battery if drained out, so as to ensure that a consumer is not left stranded on road in such exigency till reaching the nearest charging station. Since the public charging infrastructure for Battery Operated vehicles is still very scarce, having such range extender technology to charge the drained out battery of the vehicle in emergent situations would rather be in public interest. 26. We are of the view that the decision of the respondents and their failure to extend benefit of statutory Rule 2(u) of the Central Motor Vehicle Rules, 1989 with further clarificatory definitions contained in the AIS-049 and AIS-053 to the subject Battery Operated Vehicle are in teeth of the directions issued by this Court. 27. However, we still believe that the respondents had taken such decision only to save the incentive/concession by relying on documents and opinions, but not to willfully and deliberately defy the order dated 21.12.2021 passed by this Court. We, therefore, accept their apology. The contempt proceedings are thus dropped. 28. Needless to state that the subject vehicle London Taxi LEVC Model Tx with Range Extender generator merits registration as Battery Operated Vehicle as defined in Rule 2(u) of CMVR, 1989. 29. The contempt petition is accordingly disposed of. 30. Pending application(s), if any, also stands disposed of.
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