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Monday, August 6, 2012

use of black films but it is a clear violation of law. In terms of Rule 100, no material including films of any VLT can be pasted on the safety glasses of the car and this law is required to be enforced without demur and delay. Thus, we pass the following orders : 1) All the applications filed for clarification and modification are dismissed, however, without any order as to costs. 2) All the Director Generals of Police/Commissioners of Police are hereby again directed to ensure complete compliance of the judgment of this Court in its true spirit and substance. They shall not permit pasting of any material, including films of any VLT, on the safety glasses of any vehicle. 3) We reiterate that the police authorities shall not only challan the offenders but ensure that the black or any other films or material pasted on the safety glasses are removed forthwith. 4) We make it clear at this stage that we would not initiate any proceedings against the Director Generals of Police/Commissioners of Police of the respective States/Union Territories but issue a clear warning that in the event of non-compliance of the judgment of this Court now, and upon it being brought to the notice of this Court, the Court shall be compelled to take appropriate action under the provisions of the Contempt of Courts Act, 1971 without any further notice to the said officers. We do express a pious hope that the high responsible officers of the police cadre like Director General/Commissioner of Police would not permit such a situation to arise and would now ensure compliance of the judgment without default, demur and delay. 5) Copies of this judgment be sent to all concerned by the Registry including the Chief Secretaries of the respective States forthwith. use of black films but it is a clear violation of law. In terms of Rule 100, no material including films of any VLT can be pasted on the safety glasses of the car and this law is required to be enforced without demur and delay. Thus, we pass the following orders : 1) All the applications filed for clarification and modification are dismissed, however, without any order as to costs. 2) All the Director Generals of Police/Commissioners of Police are hereby again directed to ensure complete compliance of the judgment of this Court in its true spirit and substance. They shall not permit pasting of any material, including films of any VLT, on the safety glasses of any vehicle. 3) We reiterate that the police authorities shall not only challan the offenders but ensure that the black or any other films or material pasted on the safety glasses are removed forthwith. 4) We make it clear at this stage that we would not initiate any proceedings against the Director Generals of Police/Commissioners of Police of the respective States/Union Territories but issue a clear warning that in the event of non-compliance of the judgment of this Court now, and upon it being brought to the notice of this Court, the Court shall be compelled to take appropriate action under the provisions of the Contempt of Courts Act, 1971 without any further notice to the said officers. We do express a pious hope that the high responsible officers of the police cadre like Director General/Commissioner of Police would not permit such a situation to arise and would now ensure compliance of the judgment without default, demur and delay. 5) Copies of this judgment be sent to all concerned by the Registry including the Chief Secretaries of the respective States forthwith.



                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION

         IA NOS. 4, 5, IA NOS. 6-8, IA. NOS. 9-11, 12, 13, 14 AND 15
                                     IN
                    WRIT PETITION (CIVIL) NO.265 OF 2011

Avishek Goenka                               ... Appellant
                                   Versus
Union of India & Anr.                        ... Respondents


                               J U D G M E N T


Swatanter Kumar, J.



1.    The applications for impleadment and intervention are allowed  subject
to just exceptions.   All applications for placing documents on  record  are
also allowed.

2.    I.A. No. 5 of 2012 has been filed by the Dealers and  Distributors  of
tinted films in Writ Petition (Civil) No. 265 of  2011  under  Order  XVIII,
Rule 5 of the Supreme  Court  Rules,  1966  against  the  dismissal  of  two
interim applications, i.e.,  seeking  permission  to  file  application  for
impleadment and application for modification by the Registrar of this  Court
vide his Order dated 16th May, 2012.

3.     The  learned  Registrar  vide  the  impugned   order   noticed   that
application for impleadment  was  not  maintainable  inasmuch  as  the  writ
petition in which the application was filed has already  been  disposed  of.
In regard to the application for modification, according to the  applicants,
the petitioner suppressed various aspects  of  the  matter  and  misled  the
court in passing the order and the same order was therefore,  liable  to  be
modified.   Dealing with  this  contention,  the  learned  Registrar,  while
referring to the judgment of this Court in Delhi  Administration  v.  Gurdip
Singh Uban and Ors. [(2000) 7 SCC 269] held that the application,  in  fact,
was an application for review and not for modification.   Thus, he  declined
to receive the application and registered the same in  accordance  with  the
Rules of the Supreme Court.

4.    We hardly find any error of law in the Order of  the  Registrar  under
appeal, but we consider it entirely  unnecessary  to  deliberate  upon  this
issue in any further detail, since, we  have  permitted  the  applicants  to
address the Court on merits of the application. Keeping  in  view  the  fact
that a number of other applications have been filed  for  clarification  and
modification of the judgment of this Court dated 27th April,  2012,  without
commenting upon the merit or otherwise of the present appeal, we would  deal
only with the application for modification or clarification filed  by  these
applicants along with others.

5.     I.A.  No.  15  has  been  filed  by  the  International  Window  Film
Association.  I.A. No. 4 has been filed on behalf of Vipul Gambhir.

6.    An unnumbered I.A.  of  2012  is  filed  by  3M  India  Ltd.   Another
unnumbered I.A. has been filed on behalf of the dealers and distributors  of
the tinted films.

7.    I.A. No. 3 of 2012, an application on  behalf  of  the  petitioner  to
appear in person, is allowed.

8.    I.A. No. 7 of 2012 has been filed on behalf of M/s. Garware  Polyester
Ltd.    I.A. No. 10 of 2012 is an application filed by M/s. Car  Owners  and
Consumer Association.

9.    Another unnumbered  I.A.  has  been  filed  on  behalf  of  M/s.  Gras
Impex  Pvt.  Ltd.   All  these  applications  have  been  filed  by  various
applicants seeking clarification and/or  modification  of  the  judgment  of
this Court dated 27th April, 2012 on various grounds.

10.   The petitioner has filed I.A. No. 11 of 2012 by way of a common  reply
to the grounds taken in all these applications and has also  placed  certain
documents on  record.    The  various  applicants  above-named  have  sought
modification/clarification of the judgment of this Court dated  27th  April,
2012 principally and with emphasis on the following grounds :

1) That the applicants were not parties to the writ petition  and  were  not
   aware of the proceedings before this  Court.    Thus,  their  submissions
   could not be considered by the Court, hence the  judgment  of  the  Court
   requires modification.

2) The applicants have placed material and reports on record  that  the  use
   of films or even black films is permissible scientifically and in law.

3) It is contended that Rule 100(2) uses the expression ‘maintained’   which
   implies that safety glasses, including the wind screen, can be maintained
   with requisite VLT percentage even by use of black films.

4) Lastly, it is contended that para 27 of the judgment  needs  modification
   by substituting the words ‘use of black films of any VLT  percentage’  by
   the words ‘use of black films of impermissible VLT percentage”.

11.   We must notice at the very threshold that in the  main  Writ  Petition
no. 265 of 2011 and even in the present applications, there is no  challenge
to Rule 100 of the Motor Vehicles Rules,  1989  (for  short,  ‘the  Rules’).
This Court vide its judgment dated 27th April,  2012,  has  interpreted  the
said Rule  de  hors  the  other  factors.   Once  this  Court  interprets  a
provision of law, the law so declared would be the law of the land in  terms
of Article 141 of the  Constitution  of  India.   The  law  so  declared  is
binding on all and must be enforced in terms  thereof.   Having  interpreted
the Rule to mean that it is the safety  glasses  alone  with  requisite  VLT
that can be fixed in a vehicle, it is not  for  this  Court  to  change  the
language of the said Rule.  It would, primarily, be a  legislative  function
and no role herein, is to be performed by this Court.

12.   In the applications before us, as already noticed, some  grounds  have
been taken to demonstrate that some other interpretation  of  the  provision
was possible.  These grounds, firstly, are not grounds  of  law.   They  are
primarily the grounds of inconvenience.  Enforcement of law, if  causes  any
inconvenience, is no ground for rendering a provision on  the  statute  book
to be unenforceable.  The challenge to the legislative act can be raised  on
very limited grounds and certainly  not  the  ones  raised  in  the  present
application.  In  fact,  all  the  learned  counsel  appearing  for  various
applicants fairly conceded that they were not raising any challenge to  Rule
100 of the Rules.  Once that position is  accepted,  we  see  no  reason  to
alter the interpretation given by us to the said Rule in our judgment  dated
27th April, 2012.

13.   Still, we  will  proceed  to  discuss  the  contentions  raised.   The
judgment dated 27th April, 2012 was passed in a Public  Interest  Litigation
and the orders passed by this Court would  be  operative  in  rem.   It  was
neither expected of the Court nor is it the  requirement  of  law  that  the
Court should have issued notice  to  every  shopkeeper  selling  the  films,
every  distributor   distributing   the   films   and   every   manufacturer
manufacturing the films.  But, in  any  case,  this  was  a  widely  covered
matter by the Press.  It was incumbent upon the applicants to  approach  the
Court, if they wanted to be heard at that  stage.   The  writ  petition  was
instituted on 6th May, 2011 and the judgment  in  the  case  was  pronounced
after hearing all concerned, including the Union Government, on 27th  April,
2012, nearly after a year.  Hence, this  ground  raised  by  the  applicants
requires noticing only for being rejected.

14.   Not only the present judgment but even the previous judgments of  this
Court, in the cases referred to in the judgment dated 27th April,  2012,  in
some detail have never permitted use of films  on  the  glasses.   What  the
Court permitted was tinted glasses with requisite VLT.  Thus,  the  view  of
this Court has been consistent and does not  require  any  clarification  or
modification.

15.   Equally, without substance  and  merit  is  the  submission  that  the
expression ‘maintained’ used in Rule 100  would  imply  that  subsequent  to
manufacturing, the car can be maintained by use of films with requisite  VLT
of 70 per cent and  50  per  cent  respectively.   In  the  judgment,  after
discussing the scheme of the Act, the Rules framed thereunder and  Rule  100
read in conjunction with Indian Standard  No.2553  Part  II  of  1992,  this
court took the view that the Rule does not permit use of any other  material
except the safety glass ‘manufactured  as  per  the  requirements  of  law’.
Rule 100 categorically states that ‘safety glass’ is the glass which  is  to
be manufactured as per the specification and requirements of explanation  to
Rule 100(1).  It is only the safety glasses alone that can be  used  by  the
manufacturer of the vehicle.  The requisite VLT has to be 70  per  cent  and
50 per cent of the screen and side windows  respectively,  without  external
aid of any kind of material,  including  the  films  pasted  on  the  safety
glasses.  The use of film on the glass would change  the  very  concept  and
requirements of  safety  glass  in  accordance  with  law.   The  expression
‘maintained’ has to be construed  to  say  that,  what  is  required  to  be
manufactured in accordance with law should be continued to be maintained  as
such.  ‘Maintenance’ has to be construed ejusdem generis to manufacture  and
cannot be interpreted in a manner that  alterations  to  motor  vehicles  in
violation of the specific rules have  been  impliedly  permitted  under  the
language of the Rule itself.  The basic features and requirements of  safety
glass are not subject to any alteration.  If  the  interpretation  given  by
the applicants is accepted, it would frustrate the very purpose of  enacting
Rule 100 and would also hurt the safety requirements of a motor  vehicle  as
required under the  Act.   Number  of  Rules  have  been  discussed  in  the
judgment dated  27th  April,  2012  to  demonstrate  that  these  Rules  are
required to be strictly construed otherwise they would  lead  to  disastrous
results and would frustrate the very purpose of enacting such law.

16.   Now, we may come to the last contention that para 27 of  the  judgment
needs modification as noticed above.  Para  27  of  the  judgment  reads  as
under:

           “27.  For the reasons afore-stated, we prohibit the use of black
           films of any VLT percentage  or  any  other  material  upon  the
           safety glasses, windscreens (front and rear) and side glasses of
           all  vehicles  throughout  the  country.  The  Home   Secretary,
           Director  General/Commissioner  of  Police  of  the   respective
           States/Centre shall ensure compliance with this direction.   The
           directions contained in this judgment shall become operative and
           enforceable with effect from 4th May, 2012.”




17.   According to the applicant, the expression ‘we prohibit  the  use  of
black film of any VLT percentage or any other material upon safety glasses’
should  be  substituted  by  ‘we  prohibit  the  use  of  black  films   of
impermissible  VLT  percentage  or  any  other  material  upon  the  safety
glasses’.  The suggestion of the applicants would be in complete  violation
of the substantive part of the judgment.  We have already noticed  that  it
is not the extent of VLT percentage of films which is  objectionable  under
the Rules but it is the very use of black  films  or  any  other  material,
which is impermissible  to  be  used  on  the  safety  glasses.   Once  the
prescribed specifications do not contemplate  use  of  any  other  material
except what is specified in the Explanation to Rule 100(1), then the use of
any such material by  implication  cannot  be  permitted.   Quando  aliquid
prohibetur ex directo, prohibetur et per obliquum.  If  we  substitute  the
plain language in para 27, it would render the entire judgment  ineffective
and  contradictory  in  terms.   Having  already  held  that  no  material,
including the films, can be  used  on  the  safety  glasses,  there  is  no
occasion for us to accept this contention as well.

18.   The manufacturer and distributors have placed certain material before
us, including some photographs and reports of the American Cancer  Society,
to show that mostly skin cancer is caused by too much  exposure  to  ultra-
violet rays.  From these photographs, attempt is made to show that  in  the
day time when the films are pasted upon the safety glasses, still the  face
and the body of the occupant of the car is visible from outside. It is also
stated that certain amendments  were  proposed  in  the  Code  of  Virginia
relating to the use  of  sun  shading  and  tinting  films,  on  the  motor
vehicles.  Relying upon the material relating to America, it is stated that
there are large number of cancer cases in USA and the framers  of  the  law
have amended  the  provisions  or  are  in  the  process  of  amending  the
provisions.  This itself shows that it is a case of change in law  and  not
one of improper interpretation, which is not the function of this Court.

19.   To counter this, the petitioner has filed a detailed reply  supported
by various documents.  This shows that tinted glasses have been banned in a
number of countries and it is not permissible to use such  glasses  on  the
windows of the vehicle.  Annexure A1 and A3 have been placed on  record  in
relation  to  New  South  Wales,  Australia,  Afghanistan  and  some  other
countries.  He has also placed on record a complete research article on the
cancer scenario in India with future  perspective  which  has  specifically
compared India as a developing country with developed  countries  like  USA
and has found that cancer is much less in India despite the fact that  most
of the Indian population is exposed to ultra-violet  rays  for  the  larger
part of the day  for  earning  their  livelihood  for  their  daily  works,
business and other activities.

20.   This controversy arising from  the  submissions  founded  on  factual
matrix does not, in our opinion, call for  any  determination  before  this
Court.  As already noticed, the Court has interpreted Rule 100 as it exists
on  the  statute  book.   The  environment,  atmosphere  and   geographical
conditions of each country are  different.   The  level  of  tolerance  and
likelihood of exposure to a disease  through  sun  rays  or  otherwise  are
subjective matters incapable of  being  examined  objectively  in  judicial
sense.  The Courts are neither required to venture upon such  determination
nor would it be advisable.

21.   It cannot be disputed and is a matter of common knowledge that  there
are a large number of preventive measures that can be taken by a person who
needs to protect himself from the ultra-violet rays. Use  of  creams,  sun-
shed and other amenities would be beneficial for the individual alleged  to
be intolerable to sun rays.  It does not  require  change  of  a  permanent
character in the motor  vehicle,  that  too,  in  utter  violation  of  the
provisions of the statute.  Suffice it to note  that  the  reliance  placed
upon the  literature  before  us  is  misconceived  and  misdirected.   The
interpretation of law is not founded on a single circumstance, particularly
when such circumstance is  so  very  individualistic.   The  Court  is  not
expected to go into individual cases while dealing with  interpretation  of
law.  It is a settled canon of interpretative jurisprudence  that  hardship
of few cannot be the basis for determining the  validity  of  any  statute.
The law must be interpreted and  applied  on  its  plain  language.   (Ref.
Saurabh Chaudri & Ors. v. Union of India & Ors. [AIR 2004 SC 361].

22.   In IA 4, a  similar  request  is  made.   We  are  not  dealing  with
individual cases and individual inconvenience cannot be a ground for giving
the law a different interpretation.

23.   The petitioner argued  with  some  vehemence  that  despite  a  clear
direction of this Court, the appellate  authority  has  utterly  failed  in
enforcing the law.  According to him, in majority of the  vehicles  in  the
NCT Delhi and the surrounding districts of UP,  like  Ghaziabad,  Noida  as
well as towns of Haryana surrounding Delhi, law is violated with  impunity.
All safety glasses are posted either with Jet black films or light coloured
films.  He has referred to two instances, one of rape in Ghaziabad and  the
other of kidnapping, where the cars involved in the commission of the crime
had black films.  He has also stated that as per  the  press  reports,  the
vehicles which are involved in hit and run cases  are  also  vehicles  with
black films posted on the safety glasses.

24.   We are really not emphasizing on the security threat to  the  society
at large by use of black films but it is a  clear  violation  of  law.   In
terms of Rule 100, no material including films of any VLT can be pasted  on
the safety glasses of the car and this  law  is  required  to  be  enforced
without demur and delay.  Thus, we pass the following orders :

1)    All the applications filed for  clarification  and  modification  are
       dismissed, however, without any order as to costs.

2)    All the Director  Generals  of  Police/Commissioners  of  Police  are
       hereby again directed to ensure complete compliance of the  judgment
       of this Court in its true spirit  and  substance.   They  shall  not
       permit pasting of any material, including films of any VLT,  on  the
       safety glasses of any vehicle.

3)    We reiterate that the police authorities shall not only  challan  the
       offenders but ensure that the black or any other films  or  material
       pasted on the safety glasses are removed forthwith.

4)    We make it clear at  this  stage  that  we  would  not  initiate  any
       proceedings against the Director Generals of Police/Commissioners of
       Police of the respective States/Union Territories but issue a  clear
       warning that in the event of non-compliance of the judgment of  this
       Court now, and upon it being  brought to the notice of  this  Court,
       the Court shall be compelled to take appropriate  action  under  the
       provisions of the Contempt of Courts Act, 1971 without  any  further
       notice to the said officers.

      We do express a pious hope that the high responsible officers of  the
      police cadre like Director General/Commissioner of  Police  would  not
      permit such a situation to arise and would now  ensure  compliance  of
      the judgment without default, demur and delay.

5)    Copies of this judgment be sent to  all  concerned  by  the  Registry
       including the Chief Secretaries of the respective States  forthwith.



                                             …….…………......................J.
                                                              (A.K. Patnaik)




                                           ...….…………......................J.
                                                           (Swatanter Kumar)
New Delhi
August 3, 2012