Kerala High Court
Sanithjan.S vs State Of Kerala on 30 September, 2019
Equivalent citations: AIRONLINE 2019 KER 704
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 30TH DAY OF SEPTEMBER 2019 / 8TH ASWINA, 1941
WP(C).No.13327 OF 2019(M)
PETITIONER:
SANITHJAN.S,
S/O. SADEERJAN, KERALA LINES,
104/04, NEXT TO SV HOSPITAL,
HOSUR MAIN ROAD, MADIWALA,
BANGALORE, KARNATAKA-560 068
BY ADV. SRI.K.V.GOPINATHAN NAIR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY,
TRANSPORT DEPARTMENT(B),
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 TRANSPORT COMMISSIONER,
TRANS TOWER, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695 001.
3 THE REGIONAL TRANSPORT OFFICER,
CIVIL LINES, S FORT RD, KENATHUPARAMBU,
KUNATHURMEDU, PALAKKAD-678 002
4 THE REGIONAL TRANSPORT OFFICER,
CIVIL STATION, AYYANTHOLE P.O,
THRISSUR-680 003
5 THE REGIONAL TRANSPORT OFFICER,
CIVIL STATION, KAKKANAD, ERNAKULAM-682 030
6 THE REGIONAL TRANSPORT OFFICER,
CIVIL LINES, COLLECTORATE P.O,
KOTTAYAM-686 002
7 THE REGIONAL TRANSPORT OFFICER,
CIVIL LINES, CIVIL STATION, ALAPPUZHA-688 001
8 THE REGIONAL TRANSPORT OFFICER,
PARAYIL BUILDING, COLLEGE RD, MAKAMKUNNU P.O,
PATHANAMTHITTA-689 645
W.P.(C)Nos.13327 & 14695/2019 2
9 THE REGIONAL TRANSPORT OFFICER,
CIVIL LINES, ANANDAVALLE-SWARAM, KOLLAM-695
013.
10 THE REGIONAL TRANSPORT OFFICER,
AVITTAM COMPLEX, MAMAM, ATTINGAL-695 104
11 THE REGIONAL TRANSPORT OFFICER,
TRANSPORT BHAVAN, EAST FORT, FORT P.O,
THIRUVANANTHAPURAM 695 023
12 MOTOR VEHICLES INSPECTOR,
MOTOR VEHICLE CHECK POST, WALAYAR-678 624
SRI.P.SANTHOSH KUMAR, SPL.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.09.2019, ALONG WITH WP(C).14695/2019(J), THE COURT ON
30.09.2019 THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)Nos.13327 & 14695/2019 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 30TH DAY OF SEPTEMBER 2019/8TH ASWINA, 1941
WP(C).No.14695 OF 2019(J)
PETITIONER:
M/S. SRS TRAVELS,
NO.321 TSP ROAD, OPP. BMC KALASIPALYAM,
BANGALORE-560002 REPRESENTED BY ITS
ASST.MANAGER, COCHIN-SREEKANT B.S.,
S/O.BABU RAJENDRAN, AGED 35 YEARS,
RESIDING AT SARADALAYAM PUNNAMADA WARD,
AVALOOKUNNU.P.O., ALAPPUZHA-688006
BY ADVS.
SMT.SUMATHY DANDAPANI (SR.)
SRI.MILLU DANDAPANI
SMT.FATHIMA K.
RESPONDENTS:
1 STATE TRANSPORT AUTHORITY,
THIRUVANANTHAPURAM-695014,
REPRESENTED BY ITS SECRETARY
2 SECRETAY
STATE TRANSPORT AUTHORITY,
THIRUVANANTHAPURAM-695014
3 KARNATAKA STATE TRANSPORT AUTHORITY
1ST FLOOR, TTMC BUILDING, SHANTHINAGAR,
BANGALORE-560027, REPRESENTED BY ITS SECRETARY
R1-2 BY SPL.GOVERNMENT PLEADER SRI SANTHOSH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25.09.2019, ALONG WITH WP(C).13327/2019(M), THE COURT
ON 30.09.2019 DELIVERED THE FOLLOWING:
W.P.(C)Nos.13327 & 14695/2019 4
"CR"
JUDGMENT
Since common issues are raised, these writ petitions were heard together and are being disposed of by this common judgment.
2. W.P.(C)No.13327 of 2019:- The petitioner is a tourist bus operator in the State of Karnataka, who has been issued with Ext.P1 tourist permit under sub-section (9) of Section 88 of the Motor Vehicles Act, 1988 (for brevity 'the MV Act'), read with Rules 64 and 66 of the Karnataka Motor Vehicles Rules, 1989 (for brevity, 'the Kar.MV Rules'), in respect of vehicle bearing registration No.KA-59/1693, with a seating capacity of 52+2 in all, valid throughout India, for the period from 22.04.2019 to 21.04.2024, subject to the conditions enumerated in that permit issued in Form No.49, in addition to the conditions specified under Section 84 and sub- section (11) of Section 88 of the MV Act. The document marked as Ext.P2 is an authorisation dated 22.04.2019 issued in Form No.47, under sub-rule (2) of Rule 83 and sub-rule (2) of Rule 87 of the Kar.MV Rules, in respect of vehicle bearing registration No.KA-59/1693, for the period from 22.04.2019 to W.P.(C)Nos.13327 & 14695/2019 5 21.04.2020.
2.1. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that the respondents and their subordinate officers are not entitled in law to detain the petitioner's vehicles for unreasonable time, under the guise of checking or to insist remittance of compounding fee without providing opportunity to the petitioner to contest the check report and have it adjudicated in accordance with law. The further relief sought for is a writ of mandamus commanding the respondents and their subordinate officers not to detain the petitioner's vehicle having valid tourist permit under the guise of checking and not to insist remittance of compounding fee without providing opportunity to the petitioner to contest the check report and have it adjudicated in accordance with law.
2.2. Going by the averments in the writ petition, among other vehicles, about 15 vehicles owned by the petitioner have been issued with tourist permits under sub-section (9) of Section 88 of the MV Act by the Karnataka State Transport Authority. These vehicles are allowed to operate and are conducting operation based on agreements entered into by the W.P.(C)Nos.13327 & 14695/2019 6 petitioner with various approved travel agencies for the convenience of troops arranged by such agencies. When these vehicles are entering the State of Kerala, the officials under the control of the 2nd respondent Transport Commissioner and respondents 2 to 11 Regional Transport Officers are detaining the vehicles for hours with passengers and tourists in such vehicles causing inconvenience and hardship to such passengers. Alleging violation of the conditions of permit, check reports are prepared and insisted the driver and other crew of the vehicle to sign those check reports and remit the compounding fee, failing which the vehicles will not be allowed to proceed further. On 25.04.2019 the petitioner's vehicle bearing registration No.KA-59/1693 was inspected at 3.00 pm, at Walayar; at 6.30 pm, at Ernakulam; and at 7.35 pm, at Thiruvalla and the crew was compelled to remit the compounding fee to proceed with the passengers. On 03.05.2019, when the petitioner's vehicle bearing registration No.KA-01/AG-5295 was proceeding from Kottarakkara to Bangalore, it was checked at Alappuzha, at 9.15 pm, alleging violation of the conditions of permit and detained for more than 4 hours. There where 40 passengers in that vehicle W.P.(C)Nos.13327 & 14695/2019 7 including women and children. When lady passengers took serious objections the vehicle was allowed to proceed further, after the issuance of Ext.P3 check report.
2.3. On 07.05.2019, when this writ petition came up for admission before Vacation Bench, the matter was adjourned to 14.05.2019 for consideration. On that day, the matter was adjourned after vacation for consideration.
2.4. On 27.05.2019, when this writ petition came up for consideration, the learned counsel for the petitioner sought time to place on record the certificates of registration and the tourist permits of the vehicles owned by the petitioner, which are regularly operating from Bangalore to various destinations in Kerala. On 04.06.2019, along with I.A.No.1 of 2019, the petitioner produced the registration particulars in Form No.23A of vehicles bearing registration Nos.KA-59/1693, KA-01/AG- 5295, KA-01/AG-9253, KA-59/1696, KA-59/1697, KA-01/AG- 5296, KA-51/C-9156, KA-51/C-9165, KA-59/1692, KA- 59/1691, KA-01/AG-9257, KA-01/AH-8226, KA-01/AH-8229, and KA-59/1695, as Exts.P4(a) to P4(o). In Exts.P4(a), P4(d), P4(e), P4(i), P4(j), P4(n) and P4(o) registration particulars issued under Rule 48 of the Kar.MV Rules, the class of vehicle W.P.(C)Nos.13327 & 14695/2019 8 is shown as 'Bus' and in Exts.P4(b), P4(c), P4(f), P4(g), P4(h), P4(k), P4(l) and P4(m) registration particulars, as 'TST Bus'.
2.5. A counter affidavit has been filed by the 7 th respondent opposing the reliefs sought for in this writ petition. In the counter affidavit, it is stated that vehicle bearing registration No.KA-01/AG-5295 owned by the petitioner was checked in the drive 'Operation Night Riders' launched by the Motor Vehicles Department in the wake of an incident that happened at Kochi on 21.04.2019. Approximately 365 tourist buses are operating from Chennai, Bangaluru and Hyderabad and other cities to Kerala. Out of these buses, not even 50 tourist buses have been registered in the State of Kerala. There are innumerable instances of such operators exceeding the speed limit and transporting goods from other States. On 03.05.2019, at 9.30 pm, the petitioner's contract carriage bearing registration No.KA-01/AG-5295 was detained by the checking officials at Alappuzha, while it was proceeding from Kottarakkara to Bangaluru. On inspection, it was found that the said vehicle, which is covered by an All-India Tourist Permit granted under sub-section (9) of Section 88 of the MV Act was being operated as stage carriage. At the time of inspection, the W.P.(C)Nos.13327 & 14695/2019 9 vehicle was conducting service with 25 adult passengers boarded from different places, collecting individual fare. As disclosed by the crew, the remaining passengers were to be picked up from Cochin. Therefore, illegal stage carriage operation was detected, which is liable to be proceeded against for contravention of the provisions under sub-section (1) of Section 66 of the MV Act, under Section 192A. The checking was by officers duly authorised. A contract carriage permit envisaged under clause (7) of Section 2 of the MV Act and a stage carriage permit envisaged under clause (40) of Section 2 are intended for different purposes. A stage carriage is intended to meet the requirements of general travelling public. On the other hand, a contract carriage is for those, who want to hire the vehicle collectively for a group or a party for their transportation and the whole vehicle is at their disposal. As held by the Apex Court in Roshan Lal Goutam v. State of U.P. [AIR 1965 SC 991] the contract shall be prior and the persons, who are to be carried, shall be known prior to the journey, is also clear from the other limitation that the vehicle cannot stop to pick up or get down passengers not included in the contract anywhere during the journey. In the counter W.P.(C)Nos.13327 & 14695/2019 10 affidavit, it is stated that the officials in the Motor Vehicle Department never created any compelling situation to pay fine against the check report. At Alappuzha, the petitioner's vehicle KA-01/AG-5295 was checked in the drive 'Operation Night Riders'. The crew was directed to submit the records of the vehicle for verification, which is an All-India Tourist Vehicle registered in Karnataka. At the time of checking, they were picking passengers from the roadside, in front of a hotel on the arterial road in Alappuzha town. That point being a strategic place, the parking of the petitioner's contract carriage, violating the conditions of permit issued under sub-section (9) of Section 88 of the MV Act, hampered free flow of traffic and the crew was deaf to the directions of the officers for removal of the vehicle and production of records. They distanced themselves from the area, keeping the passengers on board, which impeded the release of vehicle. To ameliorate the suffering of the passengers, the checking officers, after production of copies of vehicle records, allowed the vehicle to proceed and the crew was severely reprimanded for their unprofessional behavior, but no amount was recovered as fine.
2.6. The petitioner has filed a reply affidavit, contending W.P.(C)Nos.13327 & 14695/2019 11 that even if the passengers are boarded from different places, the same does not violate any provisions, so long as the passengers are included in the contract. The contention that the respondents detected illegal stage carriage operation in contravention of the provisions under sub-section (1) of Section 66, which is liable to be proceeded against under Section 192A is absolutely without any basis, as there was no violation of any of the conditions of permit. The detention of the vehicle with passengers for hours is nothing but harassment to pressurise the crew for remitting the compounding fee. The decision of the Apex Court in Roshan Lal Goutam's case (supra) laid down the distinction between a stage carriage and a contract carriage and specified that picking up or setting down passengers is permissible if they are included in the contract. The vehicle was checked and detained at 9.30 pm, as evident from Ext.P4 check report. The entire records relating to the vehicle were available in the vehicle. Whatever be the allegations in the check report, after inspection and verification, which require only 10 to 15 minutes, the officials should have allowed to the vehicle proceed further.
W.P.(C)Nos.13327 & 14695/2019 12
2.7. In paragraph 7 of the reply affidavit, the petitioner has not denied specific allegation contained in paragraph 10 of the counter affidavit filed by the 7 th respondent that, at the time of inspection, the vehicle was parked in front of a hotel in Alappuzha Town, picking up passengers from the roadside. In the reply affidavit, the petitioner has stated that he is a reputed tourist operator, who is conducting operation by following all the provisions of law. The allegation in the check report that the vehicle was conducting stage carriage operation is absolutely wrong. The tourist vehicle is also a contract carriage, as defined in the MV Act, and the petitioner is having all valid permits and licence issued by the authorities including LAPT licence (Licensed Agent for Public Transport licence), to facilitate and arrange passengers and tourists for their journey. The attempt and purpose of checking the vehicle are to compel remittance of money as compounding fee. The question of remittance of compounding fee arises only in the event of a finding regarding punishment and that too, after adjudication by the competent authority.
3. W.P.(C)No.14695 of 2019:- The petitioner, who is a transport operator in the State of Karnataka, who is W.P.(C)Nos.13327 & 14695/2019 13 conducting operations on the strength of Inter-State permits, All-India Tourist permits, etc. has filed this writ petition seeking a writ of certiorari to quash Exts.P4 to P36 check reports, declaring it as arbitrary, illegal and against the provisions of the MV Act and also against Ext.P40 Government Order, i.e., G.O.(P)No.14/2010/Tran. Dated 05.03.2010 issued by the Government of Kerala, Transport (B) Department, whereby, in exercise of the powers under sub-section (1) of Section 200 of the MV Act and in supersession of the notifications dated 20.03.2002 and 22.03.2002, all officers of and above the rank of Assistant Motor Vehicles Inspectors of the Motor Vehicles Department and all officers of and above the rank of Sub Inspectors in the Traffic Branch of the Police Department and where there is no Traffic Branch, all officers of Local Police of the area of and above the rank of Circle Inspector of Police are authorised to compound the offences punishable under various provisions of the MV Act specified in column (2) of the Schedule to that Government Order, for the amounts specified in column (3) thereof. The petitioner has also sought for a declaration that the action taken under Section 66 of the MV Act, read with Section 192A while W.P.(C)Nos.13327 & 14695/2019 14 detaining the vehicles by the Motor Vehicle Inspectors/ Assistant Motor Vehicles Inspectors are against the provisions of the MV Act and the said officials have no authority under the MV Act to check the vehicles; to refund of the compounding fee to the petitioner, as the compounding fee collected as per Ext.P39 series are without jurisdiction; to set aside the check reports issued under the provisions of the MV Act and declare that the action initiated under Section 192A of the MV Act, while issuing check reports by the Motor Vehicle Inspectors/ Assistant Motor Vehicle Inspectors, is per se illegal, since such action is contemplated only by the Court; declare that, being inter-state tourist vehicles, the Motor Vehicle Inspectors and Assistant Motor Vehicle Inspectors of State of Kerala have no authority to check vehicles having All-India Tourist Permit, detain them and collect the compounding fee at spot, in the absence of the provisions under the MV Act or the CMV Rules; direct the 2nd respondent Transport Commissioner to give direction to the respective Regional Transport Officers not to engage Motor Vehicle Inspectors/Assistant Motor Vehicle Inspectors for checking and detaining the vehicles of the petitioner having All-India Tourist Permit, which are entering W.P.(C)Nos.13327 & 14695/2019 15 the State of Karnataka [sic: the State of Kerala], in the absence of any rules made by the Central Government; declare that as per Ext.P7 [sic: Ext.P40] notification, the Assistant Motor Vehicle Inspector has no role in checking the vehicles, even belonging to Kerala Operators and hence checking of vehicles with State Tourist Permit is ex facie wrong; and to return to the petitioner, the original permit impounded by the Assistant Motor Vehicle Inspector, Kollam, on 30.04.2019, as per the endorsement in Ext.P14.
3.1. Going by the averments in the writ petition, the petitioner is the holder of Inter-State permits operating between Bangalore to Munnar (2 vehicles), Bangalore to Kannur (2 vehicles), Chennai to Munnar (2 vehicles), Hyderabad to Calicut (2 vehicles) and Bangalore to Calicut (2 vehicles). He is also the holder of four All-India Tourist Permits granted under sub-section (9) of Section 88 of the MV Act. Presently vehicles bearing registration Nos.KA-01/AF-5540, KA-01/AF-5542, KA-01/AF-5824 and KA-01/AG-4405 (in the place of KA-01/AF-5825, which is under repair) are attached to those permits. The documents marked as Exts.P1 to P3 are tourist permits granted under sub-section (9) of Section 88 of W.P.(C)Nos.13327 & 14695/2019 16 the MV Act, read with Rules 64 and 66 of the Kar.MV Rules, in respect of vehicles bearing registration Nos.KA-01/AF-5540, KA-01/AF-5542 and KA-01/AF-5824 with a seating capacity of 49+2 in all, valid in Karnataka, Andhra Pradesh, Tamil Nadu, Maharashtra, Goa, Kerala, Gujarat, Madhya Pradesh and Rajasthan. Exts.P1 and P2 tourist permits are valid for the period from 11.05.2016 to 10.05.2021 and Ext.P3 tourist permit is valid for the period from 20.05.2016 to 19.05.2021. Exts.P1 to P3 tourist permits are granted subject to the conditions enumerated in those permits issued in Form No.49, in addition to the conditions specified under Section 84 and sub-section (11) of Section 88 of the MV Act.
3.2. The documents marked as Exts.P4 to P34 are check reports issued to the tourist vehicles owned by the petitioner, mainly alleging contravention of the conditions of permit by conducting stage carriage operation, by picking up passengers at different points and permitting them to set down at different places, collecting individual fares. Ext.P4 is the check report dated 24.04.2019 in respect of vehicle bearing registration No.KA-01/AF-5824, alleging violation of Section 66 read with Section 192A of the MV Act, which was checked at Parassala W.P.(C)Nos.13327 & 14695/2019 17 with 17 passengers on board while proceeding from Bangalore. Ext.P5 is the check report dated 24.04.2019 in respect of vehicle bearing registration No.KA-01/AF-5542, alleging violation of Section 66 of the MV Act, which was checked at Thalappady, while proceeding from Mangalore to Trivandrum, with 48 passengers from Kollur, picking up passengers at different points and permitting them to set down at different places (as per the passenger list), collecting individual fares. As per Ext.P14 charge sheet/show cause notice issued on 30.04.2019, the original permit of the petitioner's vehicle bearing registration No.KA-01/AF-5540 was impounded alleging violation of sub-section (1) of Section 66 of the MV Act. Exts.P6 to P13 and P15 to P34 are the check reports issued in respect of the tourist vehicles owned by the petitioner, mainly alleging contravention of the conditions of permit by conducting stage carriage operation, by picking up passengers at different points and permitting them to set down at different places, collecting individual fares. The document marked as Ext.P35 is a copy of the petitioner's reply dated 15.05.2019 to Ext.P36 check report dated 01.05.2019 and Ext.P37 is a copy of the petitioner's reply dated 15.05.2019 to W.P.(C)Nos.13327 & 14695/2019 18 Ext.P37(a) check report dated 02.05.2019. The petitioner submitted Ext.P38 representation dated 15.05.2019 before the 2nd respondent Secretary of the 1 st respondent State Transport Authority, with respect to check report dated 23.04.2019 issued in respect of vehicle bearing registration No.KA-01/AF- 5540. According to the petitioner, the drivers of the vehicles, under coercion, compulsion and due to ignorance remitted the compounding fee under Section 200 of the MV Act against Exts.P4, P6, P7, P9, P16, P19, P20 and P30, to facilitate continuance of service. The documents marked as Ext.P39 are seven cash receipts regarding remittance of compounding fee of Rs.5,000/- each.
3.3. A statement has been filed on behalf of the 2 nd respondent Secretary of the State Transport Authority, opposing the reliefs sought for in this writ petition. In the statement, it is stated that the petitioner has been issued with All-India Tourist Permits under sub-section (9) of Section 88 of the MV Act. Clause (a) of sub-section (14) of Section 88 empowers the Central Government to make Rules for carrying out the provisions of this Section, in respect of matters mentioned in sub-clause (b). Accordingly, the Central W.P.(C)Nos.13327 & 14695/2019 19 Government made Rules 82 to 85 of the CMV Rules. Rule 85 deals with additional conditions of tourist permits. After referring to the provisions under sub-rules (5), (6), (9) and (10) of Rule 85 of the CMV Rules and Section 192A of the MV Act, the 2nd respondent would contend that, a conjoint reading of Rule 85 of the CMV Rules and Section 192A of the MV Act would reveal that the officers under the Motor Vehicles Department can take appropriate legal action against the offenders. The distinction between stage carriage permit and contract carriage permit has to be maintained, as the two types of permits are intended to meet different requirements. The petitioner's vehicles, which are operating from the State of Karnataka to different destinations in Kerala are conducting stage carriage operation by collecting individual fares to different places in between the terminals, violating permit conditions of All-India Tourist Permits. The officers, who checked the vehicles have the power to ascertain the veracity of the records and also the conduct of service. As per sub- section (4) of Section 86 of the MV Act, the powers exercisable under sub-section (1) other than the power to cancel a permit by the Transport Authority, which granted the permit may be W.P.(C)Nos.13327 & 14695/2019 20 exercised by any authority or person to whom such powers have been delegated under sub-section (5) of Section 68. As per sub-section (7) of Section 86, in relation to a permit referred to in sub-section (9) of section 88, the power exercisable under sub-section (1) (other than the power to cancel a permit) by the Transport Authority which granted the permit, may be exercised by any Transport Authority and any authority or persons to whom power in this behalf has been delegated under sub-section (5) of Section 68, as if the said permit was granted by such authority or persons. The 2 nd respondent would contend that, at the time of inspection, the passengers of the inter-state service have to be briefed to get the details of their travelling, to ascertain whether they are travelling individually or under a contract. The luggage cabins of the vehicles will have to be opened and checked for detecting illegal transport of goods and parcels. Due to these factors, certain delay may occur in checking inter-state services. However, instructions from time to time have been given to the checking officers to conduct checking, as fast as they can, and making the least inconvenience to travelling public. As per Ext.P40 notification dated 02.03.2010, all W.P.(C)Nos.13327 & 14695/2019 21 officers of and above the rank of Assistant Motor Vehicle Inspectors of the Motor Vehicles Department and all officers of and above the rank of Sub Inspectors in the Traffic Branch in the Police Department are authorised to compound offences punishable under various provisions of the MV Act.
3.4. The petitioner has filed reply affidavit to the statement filed on behalf of the 2 nd respondent. In the reply affidavit, the petitioner would place reliance on the provisions under the Motor Vehicle (All-India Permit for Tourist Transport Operators) Rules, 1993 issued by the Central Government under sub-section (14) of Section 88 of the MV Act with effect from 10.10.1993. As per sub-rule (4) of Rule 1 of the said Rules, the conditions prescribed in Rules 82 to 85A of the CMV Rules shall not apply to the permits granted under this Scheme. The petitioner squarely comes under the said Rule being a tourist transport operator recognised by the Department of Tourism of the Central Government, as evidenced by Ext.P41 certificate dated 12.03.2014. The period of Ext.P41 certificate expired on 10.03.2019. 16 days before the date of expiry, the petitioner had made arrangements for renewing the same through online. The same is pending W.P.(C)Nos.13327 & 14695/2019 22 consideration before the Ministry of Tourism. The petitioner has also paid the authorisation fee for plying the vehicle through other States. The documents marked as Exts.P42, P43 and P44 are authorisation certificates dated 16.04.2019 in respect of vehicles bearing registration Nos.KA-01/AF-5824, KA-01/AF- 5540 and KA-01/AF-5542, which are valid from 11.05.2016 upto 10.05.2021. The petitioner strictly adheres to the conditions of contract carriage. The list of passengers is prepared sufficiently early and enclosed to the permit. The vehicles had not been stopped to pick up or set down passengers, who are not included in the contract anywhere during the journey with respect of all the vehicles. The list contains all the names of the passengers to carry from one destination to another destination without picking up or setting down enroute passengers for hire or reward. The list discloses all the names of the passengers, who are being boarded from the starting point and the list clearly gives an idea about the setting down of these passengers collecting the amount of the journey which is a fixed or an agreed rate or sum. No passenger is picked up or set down enroute, who is not figuring in the list prepared prior to the journey. No individual fare is W.P.(C)Nos.13327 & 14695/2019 23 also collected by picking up or setting down passengers enroute. The passengers are picked up from one place and they are taken to their destination and therefore, it is a contract carriage within the meaning of sub-section (7) of Section 2 of the MV Act. The rule applicable in the case of the petitioner's vehicle is Rules 81 and 81A of the Kar.MV Rules. Rule 56 of the Kar.MV Rules deals with delegation of powers by the State Transport Authority. Since the Central Government alone can deal with All-India Tourist Permit, whatever rules made under Section 96 of the MV Act has no application to All- India Tourist Operators. Hence under the umbrella of rules made under Section 96, no authorisation delegating the powers and functions could be done, either with respect of Sate Transport Authority or with respect of Regional Transport Authority. The list attached to the permit clearly discloses the data of the passengers, their mobile number, place of boarding, place of alighting, etc. and no single instance of picking up the passenger or setting down a passenger, who is not included in the list had been done by the petitioner's crew. Since the list was scrupulously prepared and the same was handed over at the time of checking, there is no reason for the W.P.(C)Nos.13327 & 14695/2019 24 checking officers to come to a different conclusion and collect the compounding fee. None of the officials had mentioned about the list of the trip handed over to them. There was no comparison with the passengers with that list to determine whether any extra passenger has been boarded. The Assistant Motor Vehicle Inspectors and the Motor Vehicle Inspectors of the Motor Vehicle Department in the State of Kerala cannot intercept the vehicle and impound the document. The power to impound the document or seizure of vehicles can only be exercised by the Police officials under the provision of Section 207 of the MV Act. No Police officials had intercepted during those days when checking was done indiscriminately by the Assistant Motor Vehicle Inspectors and Motor Vehicle Inspectors in the State. Though one case is charge sheeted by the Police at Thiruvananthapuram, that is being contested in the Judicial Magistrate Court at Thiruvananthapuram. In the reply affidavit, the petitioner has stated that, after the filing of the writ petition, within two days, the vehicles were checked and compounding fees were collected.
4. Heard the learned Senior Counsel for the petitioner in W.P.(C)No.14695 of 2019, the learned counsel for the W.P.(C)Nos.13327 & 14695/2019 25 petitioner in W.P.(C)No.13327 of 2019 and also the learned Special Government Pleader appearing for the respondents in W.P.(C)No.13327 of 2019 and for respondents 1 and 2 in W.P. (C)No.14695 of 2019. In view of the amendment made to MV Act by the Motor Vehicles (Amendment) Act, 2019 further arguments were heard on 25.09.2019. The petitioner in W.P. (C)No.14695 of 2019 has filed I.A.No.2 of 2019 seeking an order to release vehicle bearing registration No.KA-01/AF- 5542, which was detained by the Assistant Motor Vehicle Inspector at Thalappady check post on 15.09.2019, vide Ext.P45 check report while proceeding from Trivandrum to Mookambika.
5. The vehicles in question owned by the petitioners in these writ petitions are covered by All-India Tourist Permits issued under sub-section (9) of Section 88 of the MV Act, by the State Transport Authority, Karnataka, which are issued with check reports by the officers of the Motor Vehicles Department in Kerala, not below the rank of Assistant Motor Vehicle Inspectors, mainly alleging use of such vehicles in contravention of sub-section (1) of Section 66 of the MV Act, punishable under Section 192A of the said Act. As per the W.P.(C)Nos.13327 & 14695/2019 26 check reports, at the time of inspection, the vehicles were being operated as stage carriages, with passengers boarded from different places to different destinations, collecting individual fares.
6. The MV Act, 1988 was enacted to consolidate and amend the law relating to motor vehicles. Clause (7) of Section 2 of the MV Act defines 'contract carriage' to mean a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum; (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes; (i) a maxi-cab; and (ii) a motor-cab notwithstanding that separate fares are charged for its passengers. Clause (35) of Section 2 defines 'public service vehicle' to mean any motor vehicle used or adapted to be used W.P.(C)Nos.13327 & 14695/2019 27 for the carriage of passengers for hire or reward, and includes a maxi-cab, a motor-cab, contract carriage, and stage carriage.
6.1. Clause (40) of Section 2 of the MV Act defines 'stage carriage' to mean a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. Clause (43) of Section 2 defines 'tourist vehicle' to mean a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf. Clause (47) of Section 2 defines 'transport vehicle' to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
6.2. Chapter IV of the MV Act deals with registration of motor vehicles. Section 39 of the MV Act deals with necessity for registration. As per Section 39, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with W.P.(C)Nos.13327 & 14695/2019 28 this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. As per the proviso to Section 39, nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. Section 56 deals with certificate of fitness of transport vehicles. As per sub-section (1) of Section 56, subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder.
6.3. Chapter V of the MV Act deals with control of transport vehicles. Section 66 of the Act deals with necessity for permits. As per sub-section (1) of Section 66, no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such W.P.(C)Nos.13327 & 14695/2019 29 vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. As per the first proviso to sub-section (1) of Section 66, a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage. As per the second proviso, a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not. As per the third proviso, a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. As per the fourth proviso to sub-section (1) of Section 66, inserted by Section 29 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019], where a transport vehicle has been issued with any permit or permits, as well as a licence under this Act, such vehicle may be used either under the permit, or W.P.(C)Nos.13327 & 14695/2019 30 permits, so issued to it, or under such licence, at the discretion of the vehicle owner.
6.4. Section 68 of the MV Act deals with transport authorities. As per sub-section (1) of Section 68, the State Government shall, by notification in the Official Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in sub- section (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (referred to as regions in Chapter V) as may be specified in the notification, in respect of each Regional Transport Authority; the powers and functions conferred by or under this Chapter on such Authorities. As per sub-section (3) of Section 68, the State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under Section 67 [which deals with the power of the State Government to control road transport] and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the powers and functions enumerated in clauses (a) to (d) of sub-section (3). W.P.(C)Nos.13327 & 14695/2019 31
6.5. As per sub-section (4) of Section 68 of the MV Act, for the purpose of exercising and discharging the powers and functions specified in sub-section (3), a State Transport Authority, may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority, and the Regional Transport Authority shall, in the discharge of its functions under this Act, give effect to and be guided by such directions. As per sub-section (5) of Section 68, the State Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under Section 96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitations and conditions as may be prescribed by the said rules.
6.6. Section 73 of the MV Act deals with application for contract carriage permit. As per Section 73, an application for a permit in respect of a contract carriage (referred to as a contract carriage permit in Chapter V) shall contain the particulars enumerated in clauses (a) to (c) thereof. Section 74 deals with grant of contract carriage permit. As per sub-section (1) of Section 74, subject to the provisions of sub-section (3), W.P.(C)Nos.13327 & 14695/2019 32 a Regional Transport Authority may, on an application made to it under Section 73, grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit. As per the proviso to sub-section (1), no such permit shall be granted in respect of any area not specified in the application. As per sub-section (2) of Section 74, the Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this Act, attach to the permit any one or more of the conditions enumerated in clauses (i) to (xiii) thereof. As per the proviso to sub-section (2) of Section 74, inserted by Section 33 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019], the Regional Transport Authority may in the interest of last-mile connectivity waive any such conditions in respect of any such types of vehicles as may be specified by the Central Government.
6.7. Section 84 of the MV Act deals with general conditions attaching to all permits. As per Section 84, the conditions enumerated in clauses (a) to (g) thereof shall be the conditions of every permit. As per clause (a), the vehicle to which the permit relates shall carry a valid certificate of fitness W.P.(C)Nos.13327 & 14695/2019 33 issued under Section 56 and is shall at all times so maintained as to comply with the requirements of the MV Act and the rules made thereunder. As per clause (b), the vehicle to which the permit relates shall not be driven at a speed exceeding the speed permitted under the MV Act. As per clause (c), any prohibition or restriction imposed and any fares or freight fixed by notification made under Section 67 shall be observed in connection with the vehicle to which the permit relates.
6.8. Section 86 of the MV Act deals with cancellation and suspension of permits. As per sub-section (1) of Section 86, the Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit on the grounds enumerated in clauses (a) to (f) of sub-section (1). Under clause (a), the Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit on the breach of any condition specified in Section 84 or of any condition contained in the permit, and under clause (b), if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit. Sub-section (7) of Section 86 deals with tourist permit granted under sub-section (9) of Section 88 of the MV W.P.(C)Nos.13327 & 14695/2019 34 Act. Sub-section (7) of Section 86 provides that, in relation to a permit referred to in sub-section (9) of Section 88, the powers exercisable under sub-section (1) (other than the power to cancel a permit) by the Transport Authority which granted the permit, may be exercised by any Transport Authority and any authority or persons to whom power in this behalf has been delegated under sub-section (5) of Section 68, as if the said permit was a permit granted by any such authority or persons. Section 86 of the Act reads thus;
"86. Cancellation and suspension of permits.- (1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit--
(a) on the breach of any condition specified in Section 84 or of any condition contained in the permit, or
(b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or
(c) if the holder of the permit ceases to own the vehicle covered by the permit, or
(d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or
(e) if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purposes for which the permit was granted, or
(f) if the holder of the permit acquires the citizenship of any foreign country:W.P.(C)Nos.13327 & 14695/2019 35
Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation.
(2) The transport authority may exercise the powers conferred on it under sub-section (1) in relation to a permit granted by any authority or person to whom power in this behalf has been delegated under sub-
section (5) of Section 68 as if the said permit was a permit granted by the transport authority.
(3) Where a transport authority cancels or suspends a permit, it shall give to the holder in writing its reasons for the action taken.
(4) The powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit may be exercised by any authority or person to whom such powers have been delegated under sub-section (5) of Section 68. (5) Where a permit is liable to be cancelled or suspended under clause (a) or clause (b) or clause (e) of sub-section (1) and the transport authority is of opinion that having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit if the holder of the permit agrees to pay a certain sum of money, then, notwithstanding anything contained in sub-section (1), the transport authority may, instead of cancelling or suspending the permit, as the case may be, recover from the holder of the permit the sum of money agreed upon.
(6) The powers exercisable by the transport authority under sub-section (5) may, where an appeal has been W.P.(C)Nos.13327 & 14695/2019 36 preferred under Section 89, be exercised also by the appellate authority.
(7) In relation to a permit referred to in sub-section (9) of Section 88, the powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit, may be exercised by any transport authority and any authority or persons to whom power in this behalf has been delegated under sub-section (5) of Section 68, as if the said permit was a permit granted by any such authority or persons."
6.9. Section 88 of the MV Act deals with validation of permits for use outside the region in which it is granted. As per sub-section (1) of Section 88, except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned. However, as per sub-section (9) of Section 88, notwithstanding anything contained in sub-section (1), but subject to any rules that may be made by the Central Government under sub- W.P.(C)Nos.13327 & 14695/2019 37 section (14), any State Transport Authority may, for the purpose of promoting tourism, grant permits in respect of tourist vehicles valid for the whole of India, or in such contiguous States not being less than three in number including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application and the provisions of Sections 73, 74, 80, 81, 82, 83, 84, 85, 86, 62, clause (d) of sub-section (1) of Section 87 and Section 89 shall, as far as may be, apply in relation to such permits.
6.10. As per clause (a) of sub-section (14) of Section 88 of the MV Act, the Central Government may make rules for carrying out the provisions of this section. As per clause (b) of sub-section (14), in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in sub-clauses (i) to (v) thereof. Sub-clause (i) deals with the authorisation fee payable for the issue of a permit referred to in sub-sections (9) and (12); sub-clause (iii) deals with the distinguishing particulars or marks to be carried or exhibited in or on the motor vehicle; sub-clause (iv) deals with the colour or colours in which the W.P.(C)Nos.13327 & 14695/2019 38 motor vehicle is to be painted; etc. Clause (b) of Explanation to Section 88 defines 'authorisation fee' to mean the annual fee, not exceeding one thousand rupees, which may be charged by the appropriate authority of a State to enable a motor vehicle, covered by the permit referred to in sub- sections (9) and (12) to be used in other States subject to the payment of taxes or fees, if any, levied by the States concerned.
6.11. Section 88A of the MV Act, as inserted by Section 34 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019] deals with power of Central Government to make schemes for National, multimodal and inter-state transport of passengers and goods. As per sub-section (1) of Section 88A, notwithstanding anything contained in this Act, the Central Government may, by notification in the Official Gazette, modify any permit issued under this Act or makes schemes for National, multimodal and inter-state transportation of goods or passengers, and issue or modify licences under such scheme for the purposes enumerated in clauses (a) to (k) thereof. As per the proviso to sub-section (1), the Central Government may, before taking any action W.P.(C)Nos.13327 & 14695/2019 39 under this sub-section shall seek concurrence of the State Government. Section 88A of the Act reads thus;
"88A. Power of Central Government to make schemes for national, multimodal and inter-State transport of passengers and goods.- (1) Notwithstanding anything contained in this Act, the Central Government may, by notification in the Official Gazette, modify any permit issued under this Act or make schemes for national, multimodal and inter-State transportation of goods or passengers, and issue or modify licences under, such scheme for the following purposes, namely:--
(a) last mile connectivity;
(b) rural transport;
(c) improving the movement of freight, and logistics;
(d) better utilisation of transportation assets;
(e) the enhancement to the economic vitality of the area, especially by enabling competitiveness, productivity and efficiency;
(f) the increase in the accessibility and mobility of people;
(g) the protection and enhancement of the environment;
(h) the promotion of energy conservation;
(i) improvement of the quality of life;
(j) enhancement of the integration and connectivity of the transportation system, across and between modes of transport; and
(k) such other matters as the Central Government may deem fit:W.P.(C)Nos.13327 & 14695/2019 40
Provided that the Central Government may, before taking any action under this sub-section seek concurrence of the State Governments.
(2) Notwithstanding anything contained in sub-section (1), two or more States may make schemes for the operation within such States for the inter-State transportation of goods or passengers:
Provided that in the event of any repugnancy between the schemes made by the Central Government under sub-section (1) and schemes made by two or more States under this sub-section, the schemes made under sub-section (1) shall prevail."
6.12. Clause (1A) of Section 2 of the MV Act inserted by Section 2 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019] defines 'aggregator' to mean a digital intermediary or market place for a passenger to connect with a driver for the purpose of transportation. As per Section 93 of the MV Act, after its substitution/insertion by Section 36 of the Motor Vehicles (Amendment) Act, 2019, an agent or canvasser or aggregator has to obtain licence. As per sub-section (1) of Section 93, no person shall engage himself (i) as an agent or a canvasser, in the sale of tickets for travel by public service vehicles or in otherwise soliciting customers for such vehicles, or (ii) as an agent in the business of collecting, forwarding or distributing goods carried by goods carriages, or (iii) as an W.P.(C)Nos.13327 & 14695/2019 41 aggregator, unless he has obtained a licence from such authority and subject to such conditions as may be prescribed by the State Government. As per the first proviso to sub-
section (1), while issuing the licence to an aggregator, the State Government may follow such guidelines as may be issued by the Central Government. As per the second proviso, every aggregator shall comply with the provisions of the Information Technology Act, 2000 and the Rules and Regulations made thereunder. As per sub-section (2) of Section 93, the conditions referred to in sub-section (1) may include all or any of the matters enumerated in clauses (a) to (f) thereof. As per sub-section (3) of Section 93, it shall be a condition of every licence that no agent or canvasser to whom the licence is granted shall advertise in any newspaper, book, list, classified directory or other publication unless there is contained in such advertisement appearing in such newspaper, book, list, classified directory or other publication the licence number, the date of expiry of licence and the particulars of the authority which granted the licence.
6.13. Section 95 of the MV Act deals with power of State Government to make rules as to stage carriages and contract W.P.(C)Nos.13327 & 14695/2019 42 carriages. As per sub-section (1) of Section 95, a State Government may make rules to regulate, in respect of stage carriages and contract carriages and the conduct of passengers in such vehicles. As per sub-section (2), without prejudice to the generality of the foregoing provision, such rules may deal with the matters enumerated in clauses (a) to (i) thereof. Section 96 deals with power of State Government to make rules for the purposes of Chapter V [which deals with control of transport vehicles]. As per sub-section (1) of Section 96, a State Government may make rules for the purpose of carrying into effect the provisions of Chapter V. As per sub-section (2), without prejudice to the generality of the foregoing power, rules under this section may be made with respect to all or any of the matters enumerated in clauses (i) to (xxxiii) thereof. Clauses (xxxiia) and (xxxiib), inserted by Section 38 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019] empowers the State Government to make rules with respect to framing of schemes under sub-section (3) of Section 67; and the promotion of effective competition, passenger convenience and safety, competitive fares and prevention of overcrowding, respectively. W.P.(C)Nos.13327 & 14695/2019 43
6.14. Chapter XIII of the MV Act deals with offences, penalties and procedure. As per Section 177, which deals with general provision for punishment of offences, whoever contravenes any provision of this Act or of any rule, regulation or notification made thereunder shall, if no penalty is provided for the offence be punishable for the first offence with fine which may extend to one hundred rupees, and for any second or subsequent offence with fine which may extend to three hundred rupees. By Section 58 of the Motor Vehicles (Amendment) Act, 2019, the words 'one hundred rupees' and 'three hundred rupees' in Section 177 of the MV Act, are substituted with the words 'five hundred rupees' and 'one thousand and five hundred rupees' respectively, with effect from 01.09.2019. As per Section 177A of the MV Act, inserted by Section 59 of the Motor Vehicles (Amendment) Act, 2019, whoever contravenes the regulations made under Section 118, shall be punishable with fine which shall not be less than five hundred rupees, but may extend to one thousand rupees.
6.15. Section 178 of the MV Act deals with penalty for travelling without pass or ticket and for dereliction of duty on the part of conductor and refusal to ply contract carriage, etc. W.P.(C)Nos.13327 & 14695/2019 44 Section 179 of the MV Act deals with disobedience of orders, obstruction and refusal of information. As sub-section (1) of Section 179, whoever wilfully disobeys any direction lawfully given by any person or authority empowered under this Act to give such direction, or obstructs any person or authority in the discharge of any functions which such person or authority is required or empowered under this Act to discharge, shall, if no other penalty is provided for the offence be punishable with fine which may extend to five hundred rupees. As sub-section (2) of Section 179, whoever, being required by or under this Act to supply any information, wilfully withholds such information or gives information which he knows to be false or which he does not believe to be true, shall, if no other penalty is provided for the offence, be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. By Section 61 of the Motor Vehicles (Amendment) Act, 2019, the words 'five hundred rupees' in sub-section (1) and sub-section (2) of Section 179 of the MV Act are substituted with the words 'two thousand rupees', with effect from 01.09.2019.
6.16. Section 183 of the MV Act, which deals with driving W.P.(C)Nos.13327 & 14695/2019 45 at excessive speed, etc. Section 183 of the MV Act, after insertion/substitution/omission by Section 66 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, reads thus;
"183. Driving at excessive speed, etc.- (1) Whoever drives or causes any person who is employed by him or subjects someone under his control to drive a motor vehicle in contravention of the speed limits referred to in Section 112 shall be punishable in the following manner, namely:--
(i) where such motor vehicle is a light motor vehicle with fine which shall not be less than one thousand rupees but may extend to two thousand rupees;
(ii) where such motor vehicle is a medium
goods vehicle or a medium passenger
vehicle or a heavy goods vehicle or a heavy
passenger vehicle with fine which shall not be less than two thousand rupees, but may extend to four thousand rupees; and
(iii) for the second or any subsequent offence under this sub-section the driving licence of such driver shall be impounded as per the provisions of the sub-section (4) of Section
206.
(2) [omitted] (3) No person shall be convicted of an offence punishable under sub-section (1) solely on the evidence of one witness to the effect that in the opinion of the W.P.(C)Nos.13327 & 14695/2019 46 witness such person was driving at a speed which was unlawful, unless that opinion is shown to be based on an estimate obtained by the use of some mechanical or electronic device.
(4) The publication of a time table under which or the giving of any direction that any journey or part of a journey is to be completed within a specified time shall, if in the opinion of the Court it is not practicable in the circumstances of the case for that journey or part of a journey to be completed in the specified time without contravening the speed limits referred to in Section 112 be prima facie evidence that the person who published the time table or gave the direction has committed an offence punishable under sub-section (1)." 6.17. Section 184 of the MV Act deals with driving dangerously. Section 184 of the MV Act, after insertion/ substitution by Section 67 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, reads thus;
"184. Driving dangerously.- Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public or which causes a sense of alarm or distress to the occupants of the vehicle, other road users, and persons near roads, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to one year but shall not be W.P.(C)Nos.13327 & 14695/2019 47 less than six months or with fine which shall not be less than one thousand rupees but may extend to five thousand rupees, or with both, and for any second or subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years, or with fine of ten thousand rupees, or with both. Explanation.- For the purpose of this section,-
(a) jumping a red light;
(b) violating a stop sign;
(c) use of handheld communications devices while driving;
(d) passing or overtaking other vehicles in a manner contrary to law;
(e) driving against the authorised flow of traffic; or
(f) driving in any manner that falls far below what would be expected of a competent and careful driver and where it would be obvious to a competent and careful driver that driving in that manner would be dangerous, shall amount to driving in such manner which is dangerous to the public."
6.18. Section 185 of the MV Act deals with driving by a drunken person or by a person under the influence drugs; Section 186 deals with driving when mentally or physically unfit to drive; Section 187 deals with punishment for offences relating to accident; Section 188 deals with punishment for abatement of certain offences. As per Section 188, whoever W.P.(C)Nos.13327 & 14695/2019 48 abets the commission of an offence under Section 184, Section 185 or Section 186 shall be punishable with the punishment provided for the offence. Section 189 deals with racing and trails of speed; and Section 190 deals with using vehicle in unsafe condition.
6.19. Section 192 of the MV Act deals with using vehicle without registration. As per sub-section (1) of Section 192, whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both. As per the proviso to sub- section (1), the court may, for reasons to be recorded, impose a lesser punishment. As per Explanation to Section192 of the MV Act, inserted by Section 74 of the Motor Vehicles (Amendment) Act, 2019, use of a motor vehicle in contravention of the provisions of Section 56 shall be deemed to be a contravention of the provisions of Section 39 and shall W.P.(C)Nos.13327 & 14695/2019 49 be punishable in the same manner as provided in sub-section (1).
6.20. Section 192A of the MV Act deals with using vehicle without permit. As per sub-section (1) of Section 192A, whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub- section (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both. As per the proviso to sub-section (1) of Section 192A, the court may for reasons to be recorded, impose a lesser punishment.
6.21. Sub-section (1) of Section 192A, as inserted/ substituted by Section 75 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019], provides that whoever drives a motor vehicle or causes or allows a motor W.P.(C)Nos.13327 & 14695/2019 50 vehicle to be used in contravention of the provisions of sub- section (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with imprisonment for a term which may extend to six months and a fine of ten thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than six months or with fine of ten thousand rupees or with both. As per the proviso to sub-section (1) of Section 192A, the Court may for reasons to be recorded, impose a lesser punishment.
6.22. Section 193 of the MV Act, as substituted by Section 77 of the Motor Vehicles (Amendment) Act, 2019, deals with punishment of agents, canvassers and aggregators without proper authority. As per sub-section (1) of Section 193, whoever engages himself as an agent or canvasser in contravention of the provisions of Section 93 or of any rules made thereunder shall be punishable for the first offence with fine of one thousand rupees and for any second or subsequent offence with imprisonment which may extend to six months, or with fine of two thousand rupees, or with both. As per sub- W.P.(C)Nos.13327 & 14695/2019 51 section (2), whoever engages himself as an aggregator in contravention of the provisions of Section 93 or of any rules made thereunder shall be punishable with fine up to one lakh rupees but shall not be less than twenty five thousand rupees. As per sub-section (3), whoever, while operating as an aggregator contravenes a condition of the licence granted under sub-section (1) of section 93, not designated by the State Government as a material condition, shall be punishable with fine of five thousand rupees.
6.23. Section 194 of the MV Act deals with driving vehicle exceeding permissible weight. Section 194A, inserted by Section 79 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019] deals with carriage of excess passengers. As per Section 194A, whoever drives a transport vehicle or causes or allows a transport vehicle to be driven while carrying more passengers than is authorised in the registration certificate of such transport vehicle or the permit conditions applicable to such transport vehicle shall be punishable with a fine of two hundred rupees per excess passenger. As per the proviso to Section 194A, such transport vehicle shall not be allowed to move before the excess W.P.(C)Nos.13327 & 14695/2019 52 passengers are off-loaded and an alternative transport is arranged for such passengers. Section 194F deals with use of horns and silence zones. Section 195 deals with imposition of minimum fine under certain circumstances; Section 196 deals with driving uninsured vehicle; Section 197 deals with taking vehicle without authority; Section 198 deals with unauthorised interference with vehicle; and Section 199 deals with offences by Companies.
6.24. Section 200 of the MV Act deals with composition of certain offences. As per sub-section (1) of Section 200, any offence whether committed before or after the commencement of this Act punishable under Section 177, Section 178, Section 179, Section 180, Section 181, Section 182, sub-section (1) or sub-section (2) of Section 183, Section 184, Section 186, Section 189, sub-section (2) of Section 190, Section 191, Section 192, Section 194, Section 196 or Section 198 may either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf. As per sub-section (2) of Section 200, where an offence has been compounded under W.P.(C)Nos.13327 & 14695/2019 53 sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence. Section 200 of the MV Act, as substituted by Section 86 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019] reads thus;
"200. Composition of certain offences.- (1) Any offence whether committed before or after the commencement of this Act punishable under Section 177, Section 178, Section 179, Section 180, Section 181, Section 182, Sub-section (1) or sub-section (3) or sub- section (4) of Section 182A, Section 182B, sub-section (1) or sub-section (2) of Section 183, Section 184 only to the extent of use of handheld communication devices, Section 186, Section 189, sub-section (2) of Section 190, Section 192, Section 192A, Section 194, Section 194A, Section 194B, Section 194C, Section 194D, Section 194E, Section 194F, Section 196, Section 198 may either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf.
Provided that the State Government may, in addition to such amount, require the offender to undertake a period of community service.
(2) Where an offence has been compounded under sub- section (1) the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence.
Provided that notwithstanding compounding under this W.P.(C)Nos.13327 & 14695/2019 54 section, such offence shall be deemed to be a previous commission of the same offence for the purpose of determining whether a subsequent offence has been committed:
Provided further that compounding of an offence will not discharge the offender from proceedings under sub- section (4) of section 206 or the obligation to complete a driver refresher training course, or the obligation to complete community service, if applicable.
6.25. Section 201 of the MV Act deals with penalty for causing obstruction to free flow of traffic. Section 202 deals with power to arrest without warrant. As per sub-section (1) of Section 202, a police officer in uniform may arrest without warrant any person who in his presence commits an offence punishable under Section 184 or Section 185 or Section 197.
As per sub-section (2), a police officer in uniform may arrest without warrant any person, who has committed an offence under this Act, if such person refuses to give his name and address. Section 202 of the MV Act reads thus;
"202. Power to arrest without warrant.- (1) A police officer in uniform may arrest without warrant any person who in his presence commits an offence punishable under Section 184 or Section 185 or Section 197:
Provided that any person so arrested in connection with an offence punishable under Section 185 shall, within two hours of his arrest, be subjected to a medical W.P.(C)Nos.13327 & 14695/2019 55 examination referred to in Sections 203 and 204 by a registered medical practitioner failing which he shall be released from custody.
(2) A police officer in uniform may arrest without warrant any person, who has committed an offence under this Act, if such person refuses to give his name and address.
(3) A police officer arresting without warrant the driver of a motor vehicle shall if the circumstances so require, take or cause to be taken any steps he may consider proper for the temporary disposal of the vehicle.
6.26. Section 206 of the MV Act deals with power of police officer to impound document. As per sub-section (1) of Section 206, any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that any identification mark carried on a motor vehicle or any licence, permit, certificate of registration, certificate of insurance or other document produced to him by the driver or person in charge of a motor vehicle is a false document within the meaning of Section 464 of the Indian Penal Code, 1860 seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document. As per sub-section (2) of Section 206, any police officer or other person W.P.(C)Nos.13327 & 14695/2019 56 authorised in this behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it to the court taking cognizance of the offence and the said court shall on the first appearance of such driver before it, return the licence to him in exchange for the temporary acknowledgment given under sub- section (3). As per sub-section (3) of Section 206, a police officer or other person seizing a licence under sub-section (2) shall give to the person surrendering the licence a temporary acknowledgment therefor and such acknowledgement shall authorise the holder to drive until the licence has been returned to him or until such date as may be specified by the police officer or other person in the acknowledgement, whichever is earlier. As per the proviso to sub-section (3), if any Magistrate, police officer or other person authorised by the State Government in this behalf is, on an application made to him, satisfied that the licence cannot be, or has not been returned to the holder thereof before the date specified in the acknowledgment for any reason for which the holder is not W.P.(C)Nos.13327 & 14695/2019 57 responsible, the Magistrate, police officer or other person, as the case may be, may extend the period of authorisation to drive to such date as may be specified in the acknowledgment.
6.27. Sub-section (4) of Section 206 of the MV Act, inserted by Section 88 of the of the Motor Vehicles (Amendment) Act, 2019, a police officer or other person authorised in this behalf by the State Government shall, if he has reason to believe that the driver of a motor vehicle has committed an offence under any of Section 183, 184, 185, 189, 190, 194C, 194D, or 194E, seize the driving licence held by such driver and forward it to the licensing authority for disqualification or revocation proceedings under Section 19. As per the proviso to sub-section (4), the person seizing the licence shall give to the person surrendering the licence a temporary acknowledgment therefor, but such acknowledgment shall not authorise the holder to drive until the licence has been returned to him.
6.28. Section 207 of the MV Act deals with power to detain vehicles used without certificate of registration, permit, etc. As per sub-section (1) of Section 207, any police officer or other person authorised in this behalf by the State Government W.P.(C)Nos.13327 & 14695/2019 58 may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle. As per the proviso to sub-section (1) of Section 207, where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub- section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof. As per sub- section (2) of Section 207, where a motor vehicle has been seized and detained under sub-section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents W.P.(C)Nos.13327 & 14695/2019 59 for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.
6.29. Section 213 of the MV Act deals with appointment of motor vehicles officers. As per sub-section (1) of Section 213, the State Government may, for the purpose of carrying into effect the provisions of this Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it think fit. As per sub-section (3) of Section 213, the State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate, the duties to be performed by them, the powers (including the powers exercisable by police officers under this Act) to be exercised by them, and the conditions governing the exercise of such powers. As per sub-section (5) of Section 213, in addition to the powers that may be conferred on any officer of the Motor Vehicles Department under sub-section (3), such officer as W.P.(C)Nos.13327 & 14695/2019 60 may be empowered by the State Government in this behalf shall also have the powers enumerated in clauses (a) to (f) thereof. The exercise of power by an officer of the Motor Vehicles Department, under clause (b) of sub-section (5) of Section 213, to enter, inspect and search any premises which is in the occupation of a person who, he has reason to believe, has committed an offence under this Act or in which a motor vehicle in respect of which such offence has been committed is kept, is regulated by clauses (i) to (iii) of the proviso to sub- clause (b). As per clause (ii) of the proviso to sub-clause (b) of sub-section (5), where the offence is punishable with fine only the search of any premises which is in occupation of any such person or any premises in which a motor vehicle in respect of which such offence has been committed is kept shall not be made after sunset and before sunrise. Section 213 of the MV Act reads thus;
"213. Appointment of motor vehicles officers. - (1) The State Government may, for the purpose of carrying into effect the provisions of this Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it think fit.
(2) Every such officer shall be deemed to be a public servant within W.P.(C)Nos.13327 & 14695/2019 61 the meaning of the Indian Penal Code, 1860. (3) The State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate, the duties to be performed by them, the powers (including the powers exercisable by police officers under this Act) to be exercised by them, and the conditions governing the exercise of such powers.
(4) The Central Government may, having regard to the objects of the Act, by notification in the Official Gazette, prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such.
(5) In addition to the powers that may be conferred on any officer of the Motor Vehicles Department under sub-
section (3), such officer as may be empowered by the State Government in this behalf shall also have the power to, -
(a) make such examination and inquiry as he thinks fit in order to ascertain whether the provisions of this Act and the rules made thereunder are being observed:
(b) with such assistance, it any, as he thinks fit, enter, inspect and search any premises which is in the occupation of a person who, he has reason to believe, has committed an offence under this Act or in which a motor vehicle in respect of which such offence has been committed is kept:W.P.(C)Nos.13327 & 14695/2019 62
Provided that, -
(i) any such search without a warrant shall be made only by an officer of the rank of a Gazetted Officer;
(ii) where the offence is punishable with fine only the search shall not be made after sunset and before sunrise;
(iii) where the search is made without a warrant, the Gazetted Officer concerned shall record in writing the grounds for not obtaining a warrant and report to his immediate superior that such search has been made;
(c) examine any person and require the production of any register or other document maintained in pursuance of this Act, and take on the spot or otherwise statements of any person which he may consider necessary for carrying out the purposes of this Act;
(d) seize or take copies or any registers or documents or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed;
(e) launch prosecutions in respect of any offence under this Act and to take a bond for ensuring the attendance of the offender before any court;
(f) exercise such other powers as may be prescribed;
Provided that no person shall be compelled under this sub-section to answer any question or make any statement tending to incriminate himself.
(6) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be, apply to any W.P.(C)Nos.13327 & 14695/2019 63 search or seizure under this section as they apply to any search or seizure under the authority of any warrant issued under Section 94 of the Code."
7. The CMV Rules, 1989 made by the Central Government, in exercise of its rule making power under the relevant provisions of the MV Act was published vide notification dated 02.06.1989. Chapter IV of the CMV Rules deals with control of transport vehicles. Rule 82 of the CMV Rules deals with tourist permits. As per sub-rule (1) of Rule 82, an application for the grant of permit in respect of a tourist vehicle (hereinafter referred to in these rules as a tourist permit) shall be made in Form 45 to the State Transport Authority. As per clause (a) of sub-rule (2) of Rule 82, a tourist permit shall be deemed to be invalid from the date on which the motor vehicle covered by the permit completes 9 years in the case of a motor cab and 8 years where the motor vehicle is other than a motor cab, unless the motor vehicle is replaced. As per clause (b) of sub-rule (2), where a vehicle covered by a tourist permit is proposed to be replaced by another, the later vehicle shall not be more than two years old on the date of such replacement. As per Explanation to sub-rule (2) of Rule 82, for the purposes of this sub-rule, the period of 9 years or 8 W.P.(C)Nos.13327 & 14695/2019 64 years, shall be computed from the date of initial registration of the motor vehicle.
7.1. Rule 83 of the CMV Rules deals with authorisation fee. As per sub-rule (2) of Rule 83, every authorisation shall be granted in Form 23A, in case the certificate of registration is issued on Smart Card or shall be granted in Form 47, in case the authorisation is in paper document mode, subject to the payment of taxes or fees, if any, levied by the concerned State. As per sub-rule (2A), the authority which grants the authorisation shall inform the State Transport Authorities concerned the registration number of the motor vehicle, the name and address of the permit holder and the period for which the said authorisation is valid. As per the proviso to sub- rule (2A), where the permit holder undertakes to pay the tax direct to the concerned State Transport Authority at the time of entry in his jurisdiction, the authorisation shall expressly state that it has been issued subject to payment of taxes to the concerned State Transport Authority. As per sub-rule (3), the period of validity of an authorisation shall not exceed one year at a time. Rule 83 of the CMV Rules reads thus;
"83. Authorisation fee.--(1) An application for the grant of authorisation for a tourist permit shall be made W.P.(C)Nos.13327 & 14695/2019 65 in Form 46 and shall be accompanied by a fee of Rs 500 per annum in the form of a bank draft.
(2) Every authorisation shall be granted in Form 23A, in case the certificate of registration is issued on Smart Card or shall be granted in Form 47, in case the authorisation is in paper document mode subject to the payment of taxes or fees, if any, levied by the concerned State. The authority which grants the authorisation shall issue to the permit holder separate receipts for such taxes or fees in respect of each bank draft and such receipts shall be security printed water-mark paper carrying such hologram as may be specified by the concerned State/Union Territory:
Provided that the Bank Drafts received in respect of taxes or fees shall invariably be forwarded by the authority which grants the authorisation to the respective States:
Provided also that the use of such security printed water-mark paper carrying such hologram shall come into force on or before six months from the date of commencement of the Central Motor Vehicles (Third Amendment) Rules, 2002.
(2A) The authority which grants the authorisation shall inform the State Transport Authorities concerned the registration number of the motor vehicle, the name and address of the permit holder and the period for which the said authorisation is valid:
Provided that where the permit holder undertakes to pay the tax direct to the concerned State Transport Authority at the time of entry in his jurisdiction, the authorisation shall expressly state that it has been W.P.(C)Nos.13327 & 14695/2019 66 issued subject to payment of taxes to the concerned State Transport Authority.
(3) The period of validity of an authorisation shall not exceed one year at a time."
7.2. Rule 84 of the CMV Rules, which deals with right of operation, provides that no tourist permit shall be deemed to confer the right of operation in any State not included in the authorisation referred to in Rule 83 nor shall it exempt the owner of a vehicle from the payment of tax or fee, if any, leviable in any State. Rule 85 of the CMV Rules deals with additional conditions of tourist permit, granted to a tourist vehicle other than a motor cab under sub-section (9) of Section 88 of the MV Act. As per sub-rule (1) of Rule 85, the permit holder shall cause to be prepared in respect of each trip a list in triplicate of tourist passengers to be carried in the vehicle, giving full particulars as enumerated under clauses (a) to (d) thereof. As per sub-rule (2) of Rule 85, one copy of the list referred to in sub-rule (1) shall be carried in the tourist vehicle and shall be produced on demand by the officers authorised to demand production of documents by or under the provisions of the Act and the Rules, and the second copy shall be preserved by the permit holder.
W.P.(C)Nos.13327 & 14695/2019 67
7.3. As per sub-rule (3) of Rule 85 of the CMV Rules, the tourist vehicle shall either commence its journey or end its journey, circular or otherwise, in the home State, subject to the condition that the vehicle shall not remain outside the home State for a period of more than three months. The permit holder shall see that every return of the tourist vehicle to the home State is reported to the authority which issued the permit. As per the proviso to sub-rule (3), where the contracted journey ends outside the home State, the vehicle shall not be offered for hire within that State or from that State to any other State except for the return journey to any point in the home State. As per sub-rule (4) of Rule 85, the tourist vehicle may operate circular tours of places lying exclusively in home State or in the home State and outside the State if such circular tours are in the list approved by the tourist department of the home State to visit places of tourist, historical or religious importance and the tour is duly advertised beforehand.
7.4. As per sub-rule (5) of Rule 85 of the CMV Rules, the permit holder or his authorised agent shall issue a receipt to the hirer and the counterfoil of the same shall be kept available W.P.(C)Nos.13327 & 14695/2019 68 with him and produced on demand to the officers empowered to demand documents by or under the Act. As per sub-rule (6), the tourist vehicle shall not be parked on any bus stand used by stage carriage and shall not operate from such bus stand. As per sub-rule (7) the tourist vehicle shall exhibit the word 'Tourist' within a circle of sixty centimeters diamerter in a contrast colour on both sides of the vehicle, to the colour of the vehicle, so as to be visible clearly. As per sub-rule (8), the permit holder shall display in the front top of the tourist vehicle a board in yellow with letters in black with the inscription 'Tourist permit valid in State(s) of ...............' in English and Hindi and also, if he so prefers, in regional language of the home State. As per sub-rule (9), the permit holder shall not operate the tourist vehicle as a stage carriage. Rule 85 of the CMV Rules reads thus;
"85. Additional conditions of tourist permit.- The following shall be the additional conditions of every tourist permit granted to a tourist vehicle other than a motor cab under sub-section (9) of Section 88, namely:-
(1) The permit holder shall cause to be prepared in respect of each trip a list in triplicate of tourist passengers to be carried in the vehicle, giving full particulars as under:--
(a) names of the passengers, W.P.(C)Nos.13327 & 14695/2019 69
(b) addresses of the passengers,
(c) age of the passengers,
(d) starting point and the point of destination. (2) One copy of the list referred to in sub-rule (1) shall be carried in the tourist vehicle and shall be produced on demand by the officers authorised to demand production of documents by or under the provisions of the Act and the Rules, and the second copy shall be preserved by the permit holder.
(3) The tourist vehicle shall either commence its journey, or end its journey, circular or otherwise, in the home State, subject to the condition that the vehicle shall not remain outside the home State for a period of more than three months. The permit holder shall see that every return of the tourist vehicle to the home State is reported to the authority which issued the permit:
Provided that where the contracted journey ends outside the home State, the vehicle shall not be offered for hire within that State or from that State to any other State except for the return journey to any point in the home State.
(4) The tourist vehicle may operate circular tours of places lying exclusively in home State or in the home State and outside the State if such circular tours are in the list approved by the tourist department of the home State to visit places of tourist, historical or religious importance and the tour is duly advertised beforehand:
Provided that where such tourist vehicle is registered in the National Capital Region, it shall not operate circular tours of places lying exclusively in the National Capital W.P.(C)Nos.13327 & 14695/2019 70 Region unless it conforms to the mass emission standards (Bharat Stage-IV) specified in sub-rule (15) of Rule 115.
(5) The permit holder or his authorised agent shall issue a receipt to the hirer and the counterfoil of the same shall be kept available with him and produced on demand to the officers empowered to demand documents by or under the Act.
(6) The tourist vehicle shall not be parked on any bus stand used by stage carriage and shall not operate from such bus stand.
(7) The tourist vehicle shall exhibit the word 'Tourist' within a circle of sixty centimeters diameter in a contrast colour on both sides of the vehicle, to the colour of the vehicle, so as to be visible clearly. (8) The permit holder shall display in the front top of the tourist vehicle a board in yellow with letters in black with the inscription 'Tourist permit valid in State(s) of ...............' in English and Hindi and also, if he so prefers, in regional language of the home State. (9) The permit holder shall not operate the tourist vehicle as a stage carriage.
(10) The permit holder shall maintain a day-to-day logbook indicating the name and address of the permit holder and the registration mark of the vehicle, name and address of the driver with the particulars of his driving licence and the starting and destination points of the journey with the time of departure and arrival and the name and address of the hirer.
(11) The permit holder shall furnish every 3 months the information contained in condition (10) to the State W.P.(C)Nos.13327 & 14695/2019 71 Transport Authority which granted the permit and the logbook shall be preserved for a period of 3 years and shall be made available to the said authority on demand along with the records referred to in conditions (2) and (4).
Explanation.- In this rule, 'home State' means the State which has granted the permit under sub-section (9) of Section 88."
8. The KMV Rules, 1989 made by the State Government, in exercise of its rule making power under the relevant provisions of the MV Act was published vide notification dated 25.07.1989. Clause (za) of Rule 2 of the KMV Rules define 'Tourist Permit' to mean a contract carriage permit granted under sub-section (9) of Section 88 of the MV Act. Chapter V of the KMV Rules deals with control of transport vehicles. Rule 117 deals with necessity for permit. As per sub- rule (1) of Rule 117, a permit under sub-section (1) of Section 66 of the MV Act shall be necessary in the case of any motor vehicle other than an omni bus for private use adapted to carry more than nine persons excluding the driver referred to in sub- section (4) of Section 66 of the MV Act unless specifically exempted by a notification issued by the Government.
8.1. Rule 121 of the KMV Rules deals with Regional W.P.(C)Nos.13327 & 14695/2019 72 Transport Authorities and Rule 133 deals with power of the Regional Transport Authority. Rule 137 deals with State Transport Authority and Rule 138 deals with delegation of powers of the State Transport Authority. As per Rule 138, the State Transport Authority may, for the prompt and convenient despatch of its business, by general or special resolution delegate all or any of the powers vested in it to its Secretary, to its Chairman and to the Regional Transport Officers, as stated in the said Rule, provided that no delegation shall be made in respect of the matters enumerated in clauses (a) to
(f) thereof. As per clause (f), no delegation shall be made in respect of the power under Section 86 of the MV Act to cancel a permit. Rule 138 of the KMV Rules read thus;
"138. Delegation of powers of the State Transport Authority.- The State Transport Authority may, for the prompt and convenient despatch of its business, by general or special resolution delegate:
(1) To its Secretary:-
All or any of the powers vested in it provided that no delegation shall be made in respect of the following:-
(a) power under clause (a) of sub-section (3) of Section 68 of the Act, to co-ordinate and regulate the activities of the Regional Transport Authorities;
(b) power under clause (c) of sub-section (3) of Section 68 of the Act, to settle disputes of differences of opinion W.P.(C)Nos.13327 & 14695/2019 73 between the Regional Transport Authorities;
(c) power under sub-section (4) of Section 68 of the Act, to issue directions to the Regional Transport Authorities;
(d) power under Sections 71 and 72 of the Act to refuse stage carriage permits;
(e) power under Sections 73 and 74 of the Act to refuse contract carriage permits;
(f) power under Section 86 of the Act to cancel a permit. (2) To its Chairman:-
(a) all the powers that may be delegated to the Secretary under sub-rule (1):
Provided that in cases where the Chairman and the Secretary have both been delegated with the same powers of the State Transport Authority, the Secretary shall not exercise the powers which are exercised by the Chairman.
(3) To the Regional Transport Officers.- All the powers that may be delegated to the Secretary under sub-rule (1):
Provided that cases where the Chairman, Secretary and the Regional Transport Officers have been delegated with the same powers of the State Transport Authority, the Regional Transport Officers shall not exercise the powers which are exercised by the Chairman or the Secretary."
8.2. Rule 228 of the KMV Rules deals with production of permit on demand. As per Rule 228, permit shall be produced on demand at any reasonable time by the Secretaries of the W.P.(C)Nos.13327 & 14695/2019 74 State or Regional Transport Authorities, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector or Police Officers not below the rank of Sub Inspector. As per the proviso to Rule 228, if a permit is not at the time in possession of the person to whom demand is made, it shall be sufficient compliance with this rule if such person produces it within ten days at any police station in the State which he specifies to the officer. As per Rule 229, which deals with inspecting authority for permit, Magistrates, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector and Police Officers in uniform not below the rank of Sub Inspector may mount any transport vehicle for the purpose of inspecting the permit.
8.3. Rule 231 of the KMV Rules deals with inspection of public service vehicles. As per sub-rule (1) of Rule 231, any of the persons enumerated in clauses (a) to (e) of the said sub-
rule may, at any time when a public service vehicle is in a public place call upon the driver of the vehicle to stop the vehicle and keep it at rest for such time as may be necessary to enable him to make reasonable examination of the number of passengers and other contents of the vehicle so as to satisfy W.P.(C)Nos.13327 & 14695/2019 75 himself that the provisions of the Act and of these rules and the provisions and conditions of the permit in respect of the vehicle are being complied with. As per clause (a) of sub-rule (1) of Rule 231, any officer of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector is authorised to exercise the powers under the said Rule. Rule 231 reads thus;
"231. Inspection of public service vehicles.- (1) Any of the following persons may, at any time when a public service vehicle is in a public place call upon the driver of the vehicle to stop the vehicle and keep it at rest for such time as may be necessary to enable him to make reasonable examination of the number of passengers and other contents of the vehicle so as to satisfy himself that the provisions of the Act and of these rules and the provisions and conditions of the permit in respect of the vehicle are being complied with.
(a) any officer of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector,
(b) any Police Officer in uniform not below the rank of Sub Inspector,
(c) any Officer of the Central Narcotics Department of and above the rank of Sub Inspector authorised in this behalf and carrying on in his person, while on duty, identity card issued by the Narcotics Commissioner,
(d) The District Collector of the respective District, W.P.(C)Nos.13327 & 14695/2019 76
(e) any Minister of the Government.
(2) Any Chowkidar employed in a chowki post may, at any time when a public service vehicle is near or at the chowki post, call upon the driver of the vehicle to stop the vehicle and to keep it at rest for such time as may be necessary to enable him to make reasonable examination of the contents of the vehicle other than the passengers therein.
(3) Any officer of the Central Excise Department in uniform not below the rank of Inspector may, at any time when a public service vehicle is in a public place, call upon the driver of the vehicle to stop the vehicle and keep it at rest for such time as it may be necessary to enable the officer to make a reasonable examination of the contents of the vehicle to satisfy himself that excisable goods and contraband articles are not being carried in the vehicle."
8.4. Rule 348 of the KMV Rules deals with production of certificate of registration and fitness on demand. As per Rule 348, Magistrates, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector and Police Officers in uniform not below the rank of Sub Inspector are authorised to demand the production of the certificate of registration and the certificate of insurance of any vehicle and where the vehicle is a transport vehicle, also the certificate of fitness and the permit. Rule 351 of the KMV Rules deals with W.P.(C)Nos.13327 & 14695/2019 77 officers empowered to seize vehicles and documents. As per sub-rule (1) of Rule 351, Magistrates, Police officers in uniform not below the rank of Sub Inspector, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicle Inspector are authorised to; (a) seize any identification mark carried on, or any document produced by the driver or person in charge of a motor vehicle under the provisions of Section 206 of the Act; and (b) seize, detain and arrange for the temporary safe custody of motor vehicle under the provisions of Section 207 of the Act. Rule 351 reads thus;
"351. Officers empowered to seize vehicles and documents.- (1) Magistrates, Police Officers in uniform not below the rank of Sub Inspector, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicle Inspector are authorised to:
(a) seize any identification mark carried on, or any document produced by the driver or person in charge of a motor vehicle under the provisions of Section 206 of the Act.
(b) seize, detain and arrange for the temporary safe custody of motor vehicle under the provisions of Section 207 of the Act:
Provided that any officer of the Public Works Department not below the rank of Assistant Engineer is also authorised to exercise the powers under clause (b) when by reason of the unauthorised operation of any W.P.(C)Nos.13327 & 14695/2019 78 motor vehicle, on a route or area under the charge of or within the jurisdiction the officer, such action is due under Section 270 of the Act.
(2) Where a motor vehicle is seized under sub-section (1) of Section 207 of the Act by an officer authorised under sub-rule (1), he shall-
(a) prepare a mahazar in triplicate containing the details of the vehicle seized and the offence for which it is seized and a seizure list in quadruple showing the articles found detached in the vehicle at the time of seizure and hand over a copy each thereof, to the person in possession and control of the vehicle, under proper acknowledgement;
(b) arrange or cause to be arranged for the safe custody of the vehicle till it is released under sub-
section (2) of the said section:
Provided that where the vehicle is seized by an officer, other than a police officer, he shall hand over the vehicle, immediately, to the officer-in-charge of the Police Station having jurisdiction over the area within which the vehicle was seized, for custody:
Provided further that where the vehicle is seized in a check post by an officer of the Motor Vehicles Department, he may arrange for the safe custody of the vehicle in the checkpost concerned.
(c) send a report together with copies of the mahazar, seizure list and other records, if any, to the authority or officer authorised by the Government under sub-section (2) of Section 207 of Act to order for the release of the vehicle seized."W.P.(C)Nos.13327 & 14695/2019 79
9. The Motor Vehicles (All-India Permit for Tourist Transport Operators) Rules, 1993 (for brevity, 'All- India Permit for Tourist Operators Rules, 1993') made by the Central Government, in exercise of the rule making powers under sub-section (14) read with sub-section (9) of Section 88 of the MV Act was published vide Notification dated 10.08.1993. As per sub-rule (4) of Rule 1, the conditions prescribed in Rules 82 to 85A of the CMV Rules shall not apply to the permits granted under this scheme. Clause (b) of Rule 2 defines 'authorisation certificate' to mean a certificate issued by an appropriate authority to a recognised Tourist Transport Operator authorising him to operate throughout the territory of India or in such continuous States, not being less than three in number including the State in which the permit is issued, on recognised tourist circuits, as are specified in the All-India Permit for a tourist vehicle granted to him. Clause (c) of Rule 2 defines 'appropriate authority' to mean the authority which is authorised under the MV Act to grant a permit in respect of a tourist vehicle.
9.1. Clause (g) of Rule 2 of the All-India Permit for Tourist Operators Rules defines 'Tourist Transport Operator' to W.P.(C)Nos.13327 & 14695/2019 80 mean a Company or an individual engaged in a business of promotion of tourism by providing tourist transport vehicles on tourist circuits; any travel agency, as specified in sub-clause
(b) of clause (g), run by a Company or an individual who provides all tickets for travel by air, rail, ship, passport, visa and also arrange accommodation, tours, entertainment and other tourism related services; the tour operator Company or individual, as specified in sub-clause (b) of clause (g), who provides for transport, accommodation, sight-seeing, entertainment and other tourist related services for tourist, and is recognised by the Department of Tourism of the Government of India.
"2(g). 'Tourist Transport Operator' means - (a) A company or an individual engaged in a business of promotion of tourism by providing tourist transport vehicles on tourist circuits; or
(b) any travel agency (who possesses his own vehicle or have taken a vehicle on lease for this purpose for a period of at least one year) run by a company or an individual provides all tickets for travel by air, rail, ship, passport, visa and also arrange accommodation, tours, entertainment and other tourism related services; or
(c) the tour operator Company or individual who provides for transport, accommodation, sight-seeing, entertainment and other tourist related services for W.P.(C)Nos.13327 & 14695/2019 81 tourist, and who possesses his own vehicle or has taken a vehicle on lease for this purpose for a period of at least one year and is recognised by the Department of Tourism of the Government of India."
9.2. Clause (h) of Rule 2 of the All-India Permit for Tourist Operators Rules, defines 'tourist circuit' to mean all places of tourist interest situated in a state for which package tours are prepared and sold by the recognised Tourist Transport Operator. Explanation to clause (h) of Rule 2, for the purpose of removal of doubts, clarifies that the permit covering such tourist circuits shall be valid throughout the State. As per Rule 3, authorisation certificate shall be issued only to a Tourist Transport Operator recognised by the Department of Tourism of the Central Government. Rule 4 deals with form, contents and duration, etc., of the authorisation certificate. As per sub- rule (1) of Rule 4, every application for the issue of an authorisation certificate shall be made to the concerned State Transport Authority, in the Form as set forth in the First Schedule. As per sub-rule (2), every authorisation certificate shall be in the Form as set forth in the Second Schedule. As per sub-rule (3), the period of validity of an authorisation certificate shall not exceed one year at a time. As per sub-rule W.P.(C)Nos.13327 & 14695/2019 82 (4), the authorisation certificate may be renewed on an application made not less than fifteen days before the date of its expiry.
9.3. Rule 5 of the All-India Permit for Tourist Operators Rules deals with the procedure of applying for issue of authorisation certificate. As per sub-rule (1) of Rule 5, an application for an authorisation certificate may be made on any working day to the State Transport Authority concerned. As per sub-section (2), a State Transport Authority shall not ordinarily refuse to issue an authorisation certificate applied for under these rules. Sub-rule (3) of Rule 5 provides that, Transport Authority may reject the application made under sub-rule (1) for good and sufficient reasons to be recorded in writing, or where the Authority is of the opinion that this would have the effect of increasing the number of authorisation certificates limited in terms of sub-section (3) of Section 74 of the MV Act. As per the proviso, the authorisation certificate applied for shall be issued or refused within a period of thirty days from the date of receipt of application by the State Transport Authority.
9.4. Rule 6 of the All-India Permit for Tourist Operators W.P.(C)Nos.13327 & 14695/2019 83 Rules deals with transfer of permit (authorisation certificate) and Rule 7 deals with replacement of vehicle covered by the authorisation certificate. As per Rule 7, the holder of an authorisation certificate may, with the permission of the State Transport Authority by which the authorisation certificate was issued, replace any vehicle covered by the authorisation certificate by any other vehicle of the same nature. As per Explanation to Rule 7, the vehicle of same nature would mean having the same seating capacity for which permit has been granted and composite fee paid and such a replacement vehicle could be of any other make or model. As per Rule 10, which deals with seating capacity, an All-India Permit for Tourist Transport Operators shall be issued only in respect of vehicles with a seating capacity of not more than 39 seats, excluding the driver and the conductor. Besides, provision of Rule 128 of the CMV Rules, except for sub-rule (11) of the said rules (which deals with painting and finishing), shall also apply to the tourist vehicles.
9.5. Rule 11 of the All-India Permit for Tourist Operators Rules deals with age of tourist coaches. As per Rule 11, an All- India Permit for Tourist Transport Operators shall be deemed to W.P.(C)Nos.13327 & 14695/2019 84 be invalid from the date on which the vehicle covered by the said permit completes nine years, in the case of a motor cab and eight years in the case of a vehicle other than a motor cab. As per Explanation to Rule 11, for the purpose of this rule, the period of nine or eight years shall be computed from the date of initial registration of the tourist vehicle concerned. As per Rule 12, every motor vehicle or motor cab under the authorisation certificate issued under these rules shall exhibit the words 'All-India Tourist Permit' on the back of the motor vehicle in contrasting colours, so as to be clearly visible.
9.6. Rule 13 of the All-India Permit for Tourist Operators Rules deals with list of tourists. As per Rule 13, a tourist vehicle, other than motor cab, plying under an All-India Permit for a Tourist Transport Operator shall at all times carry a list of tourist-passengers in respect of each trip, and the list shall be produced on demand by the officers authorised to demand production of documents by or under the Act or the rules made thereunder. As per Rule 14, which deals with quarterly returns to be filed by an All-India Tourist Permit Holder, an All-India Tourist Permit holder shall file a quarterly return, in respect of the motor vehicle covered by these rules, in the Form set forth W.P.(C)Nos.13327 & 14695/2019 85 in the Third Schedule to the appropriate authority of the State by which the All-India Permit is granted and the said authority, in turn shall forward copies thereof to the appropriate authorities of other States concerned. In the quarterly returns submitted in the Form set forth in the Third Schedule the Tourist Transport Operator has to state the total distance covered in the respective States and the total distance of operation. In the remarks coulmn, the Tourist Transport Operator has to state reasons for low or high running in any particular State or States and any other factors which caused low or high operations.
9.7. Rule 15 of the All-India Permit for Tourist Operators Rules deals with certificate of recognition. As per sub-rule (1) of Rule 15, the eligibility conditions for a certificate of recognition shall be as set forth in Fourth Schedule. As per sub-rule (2) of Rule 15, every application for a certificate of recognition by the Department of Tourism, Government of India, shall be submitted in the Form prescribed in the Fifth Schedule to the Director General of Tourism, Department of Tourism, Government of India, and as per sub-rule (3), the certificate of recognition shall be granted in the Form W.P.(C)Nos.13327 & 14695/2019 86 prescribed in the Sixth Schedule. Para.A of the Fourth Schedule deals with eligibility condition for recognition as approved Tourist Transport Operator. As per the eligibility conditions, the applicant should have adequate knowledge of handling tourist transport vehicle for transferring tourist from Airport, Railway Stations, etc. for sight-seeing of tourists both foreign and domestic; the Tourist Transport Operator is registered with the appropriate authority for carrying on the business of operating tourist transport vehicles; etc. As per the eligibility conditions in the Fourth Schedule, Tourist Transport Operator granted recognition shall be entitled to such incentives and concessions as may be granted by Government from time to time and shall abide by the terms and conditions of recognition as prescribed from time to time.
10. Distinguishing features between 'stage carriage' and 'contract carriage':-
10.1. Clause (3) of Section 2 of the MV Act, 1939 defined 'contract carriage' to mean a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicles as a whole at or for a fixed or agreed rate of sum and from one point to W.P.(C)Nos.13327 & 14695/2019 87 another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares. By the Motor Vehicles (Amendment) Act, 1969, which came into force with effect from 02.03.1970, clause (3) of Section 2 was amended and after that amendment clause (3) defined 'contract carriage' to mean a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum- (i) on a time basis whether or not with reference to any route or distance, or (ii) from one point to another, and in either case without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares.
10.2. The MV Act, 1939 was repealed and the new Act, i.e., the MV Act, 1988, which came into force with effect from 01.07.1989. There is no change in the definition of 'motor cab' and also 'stage carriage'. However, the definition of 'contract carriage' has been changed. As per clause (7) of Section 2 of W.P.(C)Nos.13327 & 14695/2019 88 the MV Act, 1988 'contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicles as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicles or any person authorised by him in this behalf on a fixed or an agreed rate or sum- (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey; and includes- (i) a maxi cab; and (ii) a motor cab notwithstanding that separate fares are charged for its passengers.
10.3. In Brijendra Kumar Chaudhari v. State of U.P. [(1992) 4 SCC 703] a Three-Judge Bench of the Apex Court viewed that the change in the definition of 'contract carriage' in clause (7) of Section 2 of Act 59 of 1989, was intended to convey more explicitly what the legislature intended to convey by those words even under the old Act.
10.4. The distinguishing features between a 'stage W.P.(C)Nos.13327 & 14695/2019 89 carriage' and a 'contract carriage' came up for consideration before the Apex Court as well as various High Courts, in the context of the provisions under the MV Act, 1935 and the MV Act, 1988, in the following decisions;
10.5. In Roshan Lal Gautham v. State of U.P. and others [AIR 1965 SC 991] in the context of clause (3) of Section 2 of the MV Act, 1935, which defined the term 'contract carriage' and clause (29) of Section 2 of the said Act, which defined the term 'stage carriage' a Constitution Bench of the Apex Court held that, by clause (3) of Section 2, a contract carriage is defined as a motor vehicle which carries a passenger or passengers on hire or reward under a contract from one point to another without stopping to pick up or set down along the line of that route passengers not included in the contract. A stage carriage is defined by clause (29) of Section 2, as a motor vehicle carrying or adapted to carry passengers for hire or reward at separate fares paid for the whole journey or for stages of the journey. The distinction between the two is that the contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up W.P.(C)Nos.13327 & 14695/2019 90 other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel.
10.6. In V. Govindarajulu v. Regional Transport Officer [AIR 1986 AP 7] the question that came up for consideration before a Full Bench of the Andhra Pradesh High Court was as follows; when is a 'contract carriage' as defined under clause (3) of Section 2 of the MV Act, 1939 said to have been used as a 'stage carriage' as defined under clause (29) of Section 2 of the said Act, in order to attract the levy and demand of the increased rate of tax for a stage carriage, as notified under Section 3 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963. While answering that question, the Full Bench considered the distinguishing features between a 'stage carriage' and a 'contract carriage'. The Full Bench held that the definition of 'contract carriage' is plain and the language not too elastic and wide so as to bring within its sweep a situation never intended by the Legislature. The dominant factor that determines whether a transport vehicle is plied as a contract carriage or as a stage carriage is the actual user of the vehicle W.P.(C)Nos.13327 & 14695/2019 91 and not the permit granted authorising the use. Paragraph 7 of the said decision reads thus;
"7. It would be clear from a combined reading of the definitions of 'contract carriage', 'stage carriage', 'permit', 'public service vehicle' and 'transport vehicle' that a contract carriage and a stage carriage are public service vehicles used for the carriage of passengers for hire or reward. A contract carriage or a stage carriage can be used as a transport vehicle under a permit granted by the State or Regional Transport Authority. The permit is for the use of the transport vehicle as a contract carriage or as a stage carriage. Now the distinction between a contract carriage and a stage carriage is clearly drawn in the definition of 'contract carriage' under section 2(3) and 'stage carriage' under section 2(29) of the Act. The definition of 'contract carriage' is plain and the language not too elastic and wide so as to bring within its sweep a situation never intended by the Legislature. A transport vehicle is a contract carriage when the vehicle as a whole is hired for a fixed or agreed sum under a contract express or implied by a passenger or passengers from one point to another or on a time basis whether or not with reference to any route, and in either case without stopping to pick up or set down along the line of route passengers not included in the contract. On the other hand, in the case of a 'stage carriage' a transport vehicle is not hired as a whole and only separate fares are collected from individual passengers either for the whole journey or for stages of the journey and the restrictions relating to a W.P.(C)Nos.13327 & 14695/2019 92 contract carriage use of the vehicle as a whole for a fixed sum and the journey between two points without a right to pick up passengers en route or set down passengers are not there. In this context Rule 213 [sic:
Rule 185] of the Andhra Pradesh Motor Vehicles Rules which lays down additional conditions for the permits becomes relevant. Sub-rule IV condition (vii) [sic: Rule 185(1)(e)(v)] makes it obligatory for the owner of a contract carriage to maintain a list of passengers travelling in the vehicle in the form prescribed therein in respect of each trip and such list shall be produced before the checking officer on demand by him. Thus, it is clear that the dominant factor that determines whether a transport vehicle is plied as a contract carriage or as a stage carriage is the actual user of the vehicle and not the permit granted authorising the use."
(underline supplied) 10.7. In V. Govindarajulu's case (supra) the Full Bench of the Andhra Pradesh High Court was dealing with a case in which, a contract carriage bearing registration No. AAA- 1999 was found carrying 49 adult passengers in all from Tadipatri to Anantapur. It was stopped and checked by the Motor Vehicles Inspector, Anantapur on 25.09.1984 at 4.00 pm near Singanamala tank on Anantapur - Tadipatri road. All the passengers boarded the vehicle at Tadipatri bus stand. They paid an individual fare of Rs.5/- each. All the passengers did W.P.(C)Nos.13327 & 14695/2019 93 not belong to a single party and each was travelling on his own work. The trip sheet maintained in the bus did not indicate any contract, express or implied, between the passengers and the owner of the contract carriage. Therefore, the Motor Vehicles Inspector concluded that the vehicle was illegally used as a stage carriage by collecting individual fares. Based on the check report submitted by the Motor Vehicles Inspector, Anantapur, the Regional Transport Officer issued a show-cause notice to the registered owner of the contract carriage. The registered owner submitted his explanation. The Regional Transport Officer on a consideration of the report of the checking officer found that the contract carriage had been illegally used as a stage carriage, holding that all the passengers that boarded the contract carriage paid individual fare of Rs.5/-, that there was no express or implied contract between the passengers and the contract carriage owner and that the list of passengers maintained did not tally with the passengers that were actually found travelling in the bus. The registered owner was therefore directed to pay the difference of Rs.2750/- for the quarter ending 30.09.1984 being the difference in tax payable when the vehicle is used as a contract W.P.(C)Nos.13327 & 14695/2019 94 carriage and the tax payable when the vehicle is used as a stage carriage. Aggrieved against the said decision, the owner of the contract carriage filed writ petition before the High Court, invoking the extraordinary jurisdiction under Article 226 of the Constitution. When W.P.No.15820 of 1984 came up for hearing before the Division Bench, the learned Judges felt the necessity to have an authoritative pronouncement by a Full Bench on the question and accordingly referred that writ petition and cases involving similar question to the Full Bench.
10.8. In V. Govindarajulu's case (supra), it was contended before the Full Bench that, the mere fact that individual fares were collected from the passengers does not make the vehicle a stage carriage. The permit was for the use of the vehicle as a contract carriage and to ply between two fixed places and all the passengers who travelled in the vehicle were travelling only between those two places and no passenger was picked up on the way, and the user of the vehicle was as a contract carriage and not as a stage carriage. If no passengers were picked up or set down along the line of the route, the vehicle cannot be classified as a stage carriage. The Full Bench found that the said contention ignores the W.P.(C)Nos.13327 & 14695/2019 95 essential part of the definition of 'contract carriage', namely, that the contract, express or implied, to use the vehicle must be as a whole for a fixed sum. The essential condition is that a single party or person should be exercising full control for the use of the vehicle. If there is no single contract in respect of the vehicle and if no person or leader of the party could exercise full control of the vehicle and several passengers have separately contracted for the use of the vehicle and paid individual fares, such a transport vehicle cannot fall within the definition of contract carriage. But if there is a prior contract for the use of the vehicle as a whole with the owner, the mere fact that individual fares were collected by the leader of the party from the passengers does not make the vehicle a stage carriage. Paragraph 8 of the said decision reads thus;
"8. The learned counsel for the petitioners contended:
The mere fact that individual fares were collected from the passengers does not make the vehicle a stage carriage. There must be a valid permit for the use of the vehicle as a stage carriage. The valid permit held by the petitioners in these cases was only for the use of the vehicle as a contract carriage and to ply between two fixed places and all the passengers who travelled in the vehicle were travelling only between those two places and no passenger was picked up on the way and the user of the vehicle was as a contract carriage and not as W.P.(C)Nos.13327 & 14695/2019 96 a stage carriage. It is essential for a contract carriage to be classified as a stage carriage, that the contract carriage should be able to pick up or set down along the line of the route passengers not included in the contract. If no passengers were picked up or set down along the line of the route, the vehicle cannot be classified as a stage carriage. This contention, in our view, ignores the essential part of the definition of 'contract carriage', namely, that the contract, express or implied, to use the vehicle must be as a whole for a fixed sum. The essential condition is that a single party or person should be exercising full control for the use of the vehicle. In other words, was there a single contract in respect of the vehicle as a whole? If there is no single contract in respect of the vehicle and if no person or leader of the party could exercise full control of the vehicle and several passengers have separately contracted for the use of the vehicle and pay individual fares, such a transport vehicle cannot fall within the definition of contract carriage. But if there is a prior contract for the use of the vehicle as a whole with the owner, the mere fact that individual fares were collected by the leader of the party from the passengers does not make the vehicle a stage carriage. Though a contract carriage and a stage carriage are public service vehicles as defined under Section 2(25) of the Act, it is in the nature of the user that the distinction between the two types of transport vehicles is drawn."
(underline supplied) 10.9. In V. Govindarajulu's case (supra), the Full W.P.(C)Nos.13327 & 14695/2019 97 Bench held that, the essential difference between a contract carriage and a stage carriage is that in the former there is a prior contract between the passenger or passengers for the use of the vehicle as a whole for a fixed or agreed sum while in the latter there is absence of such a prior contract and the passengers board the bus en route and pay the fare for the distance they propose to travel. The Full Bench disagreed with the statement of law made by an earlier Division Bench that the essential condition for holding that a motor vehicle was plying as a stage carriage is that it should have picked up passengers en route. Paragraphs 13 to 16 of the said decision read thus;
"13. The Supreme Court in Roshan Lal v. State of U.P., AIR 1965 SC 991 pointed out the distinction between a contract carriage and a stage carriage as defined under section 2(3) and 2(29) thus -
"contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it, but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel."
14. Thus, the essential difference between a contract carriage and a stage carriage is that in the former there W.P.(C)Nos.13327 & 14695/2019 98 is a prior contract between the passenger or passengers for the use of the vehicle as a whole for a fixed or agreed sum while in the latter there is absence of such a prior contract and the passengers board the bus en route and pay the fare for the distance they propose to travel.
15. The unreported decisions of this Court relied upon by the learned counsel for the petitioners in W.P. No. 898 of 1972 and W.A.No.943 of 1973 preferred against the decision in W.P.No.898 of 1972 and W.A.No.17 of 1977 in which decision in W.A.No.943 of 1973 was followed, are not of much assistance to the learned counsel. In W.P.No.898 of 1972 undoubtedly there was a prior agreement entered into by one Babu Rao to take a party of persons from Vijayawada to Hyderabad and back and the vehicle was engaged as a whole for hire for a fixed amount of Rs.400/-. Therefore, the learned Judge rightly held that the transport vehicle was used as a contract carriage. In W.A.No.943 of 1973, the decision in W.P.No.898 of 1972 was merely affirmed and in W.A.No.17 of 1977 the decision in W.A.No.943 of 1973 was followed. The learned counsel, however, submits that there was a discordant note struck from the earlier decision in W.P.No.6127 of 1970 and W.A.No.131 of 1972 in W.P.No.3714 of 1982 by a Division Bench of this Court consisting of Madhava Reddy, A.C.J., and Punnayya, J. It is true that in that case the learned Judges observed that "The essential condition for holding that a motor vehicle was plying as a stage carriage is that it should have picked up passengers or set down W.P.(C)Nos.13327 & 14695/2019 99 passengers en route. So long as all the passengers were picked up at the starting point, in this case at Bangalore and were set down at the last point, i.e., Madras, and were not set down anywhere en route, the contract carriage which was permitted to proceed from Bangalore to Madras with 35 passengers cannot be said to have plied as a stage carriage. Suffice to refer to a judgment of this Court in W.A.No.17 of 1977.
Our learned brother Ramachandra Rao, J., speaking for the Bench held: The mere fact that individual fares were collected from the passengers did not lead to the conclusion that the contract carriage was used as a stage carriage."
16. With great respect to the learned Judges we find it difficult to agree with the statement of law made that the essential condition for holding that a motor vehicle was plying as a stage carriage is that it should have picked up passengers en route. Such limited operation of the definition of contract carriage is not permissible on the plain language employed in the definition."
(underline supplied) 10.10. In Brijendra Kumar Chaudhari v. State of U.P. [(1992) 4 SCC 703], the question that came up for consideration of a Three-Judge Bench of the Apex Court was as to whether the contract carries permit holders of 'mini buses' are entitled to pick up individual passengers at the starting point of their journey. Clause (d) of Section 2 of the U.P. Motor W.P.(C)Nos.13327 & 14695/2019 100 Vehicles (Special Provision) Act, 1976 define 'mini bus' to mean an omni bus which is constructed or adapted to carry not more than thirty five persons excluding the driver. The Apex Court noticed that, clause (3) of Section 2 of the MV Act, 1939 defined 'contract carriage' to mean a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicles as a whole at or for a fixed or agreed rate of sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares. By the Motor Vehicles (Amendment) Act, 1969 (Act 56 of 1969), which came into force with effect from 02.03.1970, clause (3) of Section 2 was amended and after that amendment, clause (3) defined 'contract carriage' to mean a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum- (i) on a time basis whether or not with reference to any route or distance, or (ii) from one point to another, and in either case without stopping to pick up or set down along the W.P.(C)Nos.13327 & 14695/2019 101 line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares. The MV Act, 1939 was repealed and the new Act, i.e., the MV Act, 1988 (Act 59 of 1988) came into force with effect from 01.07.1989. There is no change in the definition of 'motor cab' and also 'stage carriage'. The definition of 'contract carriage', however, has been changed. As per clause (7) of Section 2 of Act 59 of 1988 'contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicles as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicles or any person authorised by him in this behalf on a fixed or an agreed rate or sum- (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey; and includes- (i) a maxi cab; and (ii) a motor cab notwithstanding that separate fares are charged for its passengers. In paragraph 7 of the judgment [@ W.P.(C)Nos.13327 & 14695/2019 102 page 707 of SCC] the Apex Court viewed that the change in the definition of 'contract carriage' in clause (7) of Section 2 of Act 59 of 1989 was intended to convey more explicitly what the legislature intended to convey by those words even under the old Act. The Apex Court noticed that the Legislature has used a new word 'maxi cab' and that is defined in clause (22) of Section 2 of Act 59 of 1989 to mean any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward. There is no definition of 'mini bus' in the MV Act. In the light of the definition set out in clause (d) of Section 2 of the of the U.P. Motor Vehicles (Special Provision) Act, 1976 and the other definitions in Act 59 of 1989 only a motor vehicle constructed or adapted to carry not more than thirty five passengers excluding the driver and which is not a 'maxi cab"
or 'motor cab' will normally be treated as a 'mini bus'. It will not come under the definition of 'motor car' in clause (26) of Section 2, as it is a transport vehicle within the meaning of clause (47) of Section 2. But the definition of 'omni bus' is wide enough to include within it 'mini bus' as well. Therefore, the Apex Court held that a contract carriage permit granted in W.P.(C)Nos.13327 & 14695/2019 103 respect of a 'mini bus' will fall under the main part of the definition in clause (7) of Section 2 of Act 59 of 1989.
Paragraphs 5 to 8 of the said decision read thus;
"5. The question which thus arises for consideration in these appeals is whether the contract carries permit holders of mini buses are entitled to pick up individual passengers at the starting point of their journey.
6. It would be convenient and necessary at this stage to refer to the relevant provisions under the old Motor Vehicles Act, 1939 and the provisions of Motor Vehicles Act, 1988 (hereinafter called the Act). Broadly the public passenger transport motor vehicles recognised under the Act were 'motor cab' and 'omnibus' which in turn with reference to its user permit is either a 'contract carriage' or a 'stage carriage'. These descriptive vehicles were defined in the old Act as it was originally enacted as under:
"2.(15) 'motor cab' means any motor vehicles constructed, adapted or used to carry not more than six passengers excluding the driver, for hire or reward."
'Omnibus' and 'maxi cab' were not defined in the original Act but definition of 'omnibus' was inserted by the Motor Vehicles (Amendment) Act, 1956 which reads as under:
"2.(18A) 'omnibus' means any motor vehicle constructed or adapted to carry more than six persons excluding the driver."
'Stage carriage' was defined in Section 2(29) of the Old Act as follows:
"2.(29) 'stage carriage' means a motor vehicles W.P.(C)Nos.13327 & 14695/2019 104 carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey."
'Contract carriage' was defined in Section 2(3) and that as it stood prior to 1970 was under:
"(3) 'contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicles as a whole at or for a fixed or agreed rate of sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares."
After it was amended by Act 56 of 1969 with effect from March 2, 1970 the definition read:
"(3) 'contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum-
(i) on a time basis whether or not with reference to any route or distance, or
(ii) from one point to another, and in either case without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares."
7. The Motor Vehicles Act, 1939 was repealed and the W.P.(C)Nos.13327 & 14695/2019 105 new Act 59 of 1988 came to force as already stated with effect from July 1, 1989. There is no change in the definition of 'motor cab'. The definition of 'stage carriage' also remains the same. The definition of 'contract carriage', however, has been changed which in our view was intended to convey more explicitly what the legislature intended to convey by those words even under the old Act and that definition reads as follows:
"2.(7) 'contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicles as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicles or any person authorised by him in this behalf on a fixed or an agreed rate or sum-
(a) on a tune basis, whether or not with
reference to any route or distance; or
(b) from one point to another, and in either
case, without stopping to pick up or set
down passengers not included in the
contract anywhere during the journey;
and includes-
(i) a maxi cab; and
(ii) a motor cab notwithstanding that
separate fares are charged for its
passengers."
The Legislature has used a new word 'maxi cab' and that is defined as follows:
"2.(22) 'maxi cab' means any motor vehicle W.P.(C)Nos.13327 & 14695/2019 106 constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward."
8. There is no definition of 'mini bus' in the Motor Vehicles Act but we have to look up to its definition only in the U.P. Act above referred to. In the light of that definition set out above and the other definitions in the New Act only a motor vehicle constructed or adapted to carry not more than thirty five passengers excluding the driver and which is not a 'maxi cab" or 'motor cab' will normally be treated as a mini bus. It will not come under the definition of 'motor car' in Section 2(26) as it is a transport vehicle within the meaning of Section 2(47). But the definition of 'omni bus' is wide enough to include within it mini bus as well. Therefore a contract carriage permit granted in respect of a mini bus will fall under the main part of the definition in Section 2(7) of the Act." (underline supplied) 10.11. In Brijendra Kumar Chaudhari's case (supra) one of the contentions raised before the Three-Judge Bench, by the learned counsel for the appellants was that, though under a contract carriage permit only those persons who are mentioned in the contract could be picked up and stopping on the route to pick up or set down passengers is prohibited, there could be several contracts because definition states that it is a motor vehicle which 'carries a passenger or passengers'. W.P.(C)Nos.13327 & 14695/2019 107 The Apex Court held that it is not possible to read the words 'under a contract' in the context as referring to both a single contract and more than one contract. If the construction placed by the learned counsel is accepted there would be no distinction between stage carriage and contract carriage permits. A stage carriage is intended to meet the requirements of the general travelling public. But the contract carriages are for those who want to hire the vehicle collectively or individually for a group or party for their transport from place to place and the whole vehicle is at their disposal. The contract shall be prior and the persons who are to be carried shall be known prior to the journey is also clear from the other limitation that the vehicle cannot stop to pick up or set down passengers not included in the contract anywhere during the journey. If as contended by the learned counsel, contract carriage permit holder can pick up individual passengers at the starting point of the journey it is virtually a stage carriage with corridor restriction. The definition in the Act has added the words 'for the carriage of passengers mentioned therein (contract)' which were not there earlier. These words clearly show that there must be a prior contract and the passengers W.P.(C)Nos.13327 & 14695/2019 108 shall be settled in advance. Paragraphs 9 and 10 of the said decision read thus;
"9. The argument of the learned Counsel for the appellants was that though under a contract carriage permit only those persons who are mentioned in the contract could be picked up and stopping on the route to pick up or set down passengers is prohibited, there could be several contracts because definition states that it is motor vehicle which 'carries a passenger or passengers'.
10. The definition makes it clear that in order that vehicle could be used to transport passenger or passengers there must be a prior contract express or implied that the contract must indicate as to who are the passengers to be carried that the contract shall have been entered into by a person with the holder of the permit or any person authorised by him and that the engagement under 'a contract' is for use of the vehicle as a whole. It is not possible to read the words 'under a contract' in the context as referring to both a single contract and more that one contract. If the construction placed by the learned counsel is accepted there would be no distinction between stage carriage and contract carriage permits. Both these clauses of permits are intended to meet different requirements. A stage carriage is intended to meet the requirements of the general travelling public. But the contract carriages are for those who want to hire the vehicle collectively or individually for a group or party for their transport from place to place and the whole vehicle is at their disposal.W.P.(C)Nos.13327 & 14695/2019 109
This is also made clear in Section 88(8) of the Act corresponding to Section 63(6) of the old Act wherein it is provided:
"88(8). Notwithstanding anything contained in sub-section (1), but subject to any rules that may be made under this Act by the Central Government, the Regional Transport Authority of any one region or, as the case may be, the State Transport Authority, may, for the convenience of the public, grant a special permit in relation to a vehicle covered by a permit issued under Section 72 (including a reserve stage carriage) or under Section 74 or under sub-section (9) of this Section for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down along the line of route passengers not included in the contract, and in every case where such special permit is granted, the Regional Transport Authority shall assign to the vehicle, for display thereon, a special distinguishing mark in the form and manner specified by the Central Government and such special permit shall be valid in any other region or state without the counter signature of the Regional Transport Authority of the other region or of the State Transport Authority of other State, as the case may be."
That the contract shall be prior and the persons who are to be carried shall be known prior to the journey is also clear from the other limitation that the vehicle cannot stop to pick up or set down passengers not included in W.P.(C)Nos.13327 & 14695/2019 110 the contract anywhere during the journey. As pointed out by this Court in Roshan Lal Gautham v. State of U.P., [1965 (1) SCR 841 : AIR 1961 SC 991]:
"The contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up other passengers on route. The stage carriage on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for distance they propose to travel."
If as contended by the learned counsel, contract carriage permit holder can pick up individual passengers at the starting point of the journey it is virtually a stage carriage with corridor restriction. Some express buses and stage carriages with corridor restriction pick up passengers at the starting point of the journey and drop them at the last termini of the route without the right to pick up or drop passengers on the notified route between the two termini. Further the definition in the Act has added the words 'for the carriage of passenger mentioned therein (contract)' which were not there earlier. These words clearly show that there must be a prior contract and the passengers shall be settled in advance." (underline supplied) 10.12. In Brijendra Kumar Chaudhari's case (supra) another contention raised before the Three-Judge Bench, by the learned counsel for the appellants was that, the latter part of the definition of contract carriage which says that W.P.(C)Nos.13327 & 14695/2019 111 'notwithstanding that separate fares are charged for its passengers' would show that there could be separate fares for its passengers and that, therefore, individual passengers could be picked up at the starting point. Repelling the said contention, the Apex Court held that, the definition of a contract carriage under clause (7) of Section 2 is exhaustive and takes into its fold all types of vehicles which are permitted to ply as contract carriage irrespective of their size and seating capacity. In the main part of the definition which applies to all vehicles, certain limitations and conditions are referred to as implied in the grant of a contract carriage permit. However, an exception has been made in the case of a motor cab and that is notwithstanding separate fares are charged from its passengers a contract carriage permit could be granted in favour of such motor cab. But even in the case of a motor cab the condition relating to not picking up or dropping passengers on the route is applicable. Mini bus is neither a maxi cab nor a motor cab and, therefore, the exception provided in the last part of the definition will not be applicable to the case of a mini bus. Paragraph 11 of the judgment reads thus;
"11. It was then contended by the learned counsel for the appellants that the latter part of the definition of W.P.(C)Nos.13327 & 14695/2019 112 contract carriage which says that 'notwithstanding that separate fares are charged for its passengers' would show that there could be separate fares for its passengers and that, therefore, individual passengers could be picked up at the starting point. According to him this is an exception to an otherwise contract carriage permit under the main part of the definition of Section 2(7). This contention is unsustainable. The definition of a contract carriage under Section 2(7) is exhaustive and takes into its fold all types of vehicles which are permitted to ply as contract carriage irrespective of their size and seating capacity. In the main part of the definition which applies to all vehicles certain limitations and conditions are referred to as implied in the grant of a contract carriage permit. However, an exception has been made in the case of a motor cab and that is notwithstanding separate fares are charged from its passengers a contract carriage permit could be granted in favour of such motor cab. But even in the case of a motor cab the condition relating to not picking up or dropping passengers on the route is applicable. The exception also is applicable only where the motor cab is under its permit or under any law entitled or eligible to charge separate fares from its passengers. The grant of contract carriage permit in respect of a motor cab will automatically attract all the conditions provided in the main part of the section. However, if there is any other provision or law under which the motor cabs are permitted to charge separate fares from its passengers then notwithstanding their entitlement to charge separate fares from its passengers W.P.(C)Nos.13327 & 14695/2019 113 it would be considered as having a contract carriage permit. As already stated mini bus is neither a maxi cab nor a motor cab and, therefore, the exception provided in the last part of the definition will not be applicable to the case of a mini bus. In fact it was not the case of the appellants themselves that they are running a maxi cab or that their vehicles are motor cabs. For the foregoing reasons the appeals were dismissed. No costs."
(underline supplied) 10.13. In Nirmala Jagdishchandra Kabra v.
Transport Commissioner [(1997) 9 SCC 227] the Apex Court held that the very permit for which the contract for carriage of the passengers granted should contain the names of the passengers to carry from one destination to another destination without picking up or setting down en route for hire or reward but when the holder of a permit is another and permits them to carry the passengers and make the contract dehors those mentioned in the list of passengers enclosed to the permit as contract carriage and take the passengers from one destination to another, even without picking up or setting down en route, the necessary consequence would be that the vehicle has been or is being used as a stage carriage but not a contract carriage. Under those circumstances, obviously, the authority had rightly detained the vehicle for the contravention W.P.(C)Nos.13327 & 14695/2019 114 of the conditions of the permit. Paragraph 4 of the said decision reads thus;
"4. It is contended by Shri. Arun Jaitley, learned senior counsel for the petitioner that the petitioner has taken the vehicle on hire basis from the owner of the vehicle who had the permit for contract carriage of the passengers from one destination to another. They are not collecting any individual fare en route by picking up or setting down the passengers. They are picking up passengers from one place and taking them for tour to the other destination and, therefore, it is a 'contract carriage' within the meaning of Section 2(7) of the Act. It is not a Stage carriage permit but one of contract carriage and, therefore, the view taken by the High Court is not correct in law. It is true that if the holder of the vehicle obtains a contract carriage, the owner may carry a passenger or passengers for hire or reward on contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum. In other words, the very permit for which the contract for carriage of the passengers granted should contain the names of the passengers to carry from one destination to another destination without picking up or setting down en route for hire or reward but when the holder of a permit is another and permits them to carry the passengers and make the contract dehors those mentioned in the list of W.P.(C)Nos.13327 & 14695/2019 115 passengers enclosed to the permit as contract carriage and take the passengers from one destination to another, even without picking up or setting down en route, the necessary consequence would be that the vehicle has been or is being used as a stage carriage but not a contract carriage. Under those circumstances, obviously, the authority had rightly detained the vehicle for the contravention of the conditions of the permit. Therefore, the mandamus, as sought for, was rightly refused by the High Court. The learned counsel sought reliance on a judgment of the Madras High Court in N. Krishnasami Chetty v. The Licensing Officer, AIR 1988 Mad. 274. The learned Judges have not correctly appreciated the legal position. Therefore, it is not correct in view of the above law. It is accordingly overruled." (underline supplied) 10.14. In State of A.P. v. Noorulla Khan [(2004) 6 SCC 194] the Apex Court held that, the definition of 'contract carriage' in clause (7) of Section 2 of the Motor Vehicles Act, 1988 makes it clear that, (i) In order that a vehicle can be used to transport passenger/passengers there must a prior contract express or implied; (ii) Contract shall have to be entered into by a person with the holder of the permit or any person authorised by him; (iii) Engagement under the contract must be for use of the vehicle as a whole; (iv) Contract must indicate the names of passengers to be carried in the vehicle;W.P.(C)Nos.13327 & 14695/2019 116
(v) Vehicle is engaged on a fixed or an agreed rate or sum on a time basis whether or not with reference to any route or distance or from one point to another; (vi) Without stopping to pick up or set down passengers not included in the contract anywhere during the journey.
10.15. In Noorulla Khan's case the Apex Court was dealing with the Civil Appeals filed by State of Andhra Pradesh and others challenging the judgment of a Division Bench of Andhra Pradesh High Court, whereby the High Court struck down clause (c) of sub-rule (1) of Rule 297A and clause (f) of sub-rule (6) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules, 1989 being ultra vires the provisions of the Motor Vehicles Act, 1988 and Article 19(1)(g) of the Constitution of India. Clause (c) of sub-rule (1) of Rule 297A and clause (f) of sub-rule (6) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules, read thus;
"297A. Special provisions regarding licensing of agents engaged in the sales of tickets or in otherwise soliciting customers for public service vehicles.- (1) In this rule, unless the context otherwise requires,
(a) & (b) xxx xxx
(c) 'Common purpose of journey' means the intention W.P.(C)Nos.13327 & 14695/2019 117 shared alike by all the persons travelling by the public service vehicles;
(i) to attend a meeting, gathering or function, social, religious, political and the like, or
(ii) to go on a pilgrimage or tour to visit places of tourist's interest or both. But it shall not include the intention or the act of such persons of merely travelling from one common point to another.
xxx xxx xxx xxx (6) An agent's licence shall be subject to the following conditions.-
(a) to (e) xxx xxx
(f) Where the public service vehicle has been, as a whole, engaged by a hiring party an agreement shall be drawn up in writing and executed by the agent and the hiring party or its authorised representative containing the following essential particulars and stipulations, namely:
(i) Name, Father's/Husband's Name, Age/Occupation and full postal address of the members or/representative of the hiring party who executes the agreement;
(ii) An Annexure containing the list of all members of the hiring party giving their particulars in the following form:
1. Serial number,
2. Name of the Member:
3. Father's/Husband's name:
4. Age:
5. Full Postal Address:W.P.(C)Nos.13327 & 14695/2019 118
(iii) The nature of the common purpose of the journey;
(iv) The period for which the vehicle is engaged by the hiring party;
(v) The places to be visited by the hiring party;
(vi) The place or places to be specified where all or some to be specified of the members of the hiring party are to be picked up or let down under the agreement;
(vii) Hire charges;
a) if payable in a lumpsum, the amount so
payable; or
b) if calculable at a rate, the rate so agreed
upon; and
c) in either case, the amount if any paid in
advance and the time for the payment of the
balance.
(viii) Additional charges, if any, payable in case the journey is delayed or extended at the instance of the hiring party."
10.16. In Noorulla Khan's case, in the context of clause
(c) of sub-rule (1) of Rule 297A of Andhra Pradesh Motor Vehicles Rules, 1989 the Apex Court held that, the distinction between a stage carriage permit or a contract carriage permit as envisaged by the Legislature has to be maintained as the two types of permits are intended to meet different requirements. The contract carriages are for those who want to hire the vehicle collectively or individually for a group or a W.P.(C)Nos.13327 & 14695/2019 119 party for their transport to a destination/destinations. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the contract. There has to be only one contract for carrying the passengers mentioned in the contract from one destination to another. An agent or a group of persons/individuals cannot hire a public service vehicle for going from one place to another with passengers having different purposes. If such a construction is put then there would be no distinction between stage carriage or contract carriage permits. If contract carriage permit holder is permitted to pick up individual or a few of them from the starting point of journey and drop them at the last terminus of the route it would virtually be a Stage Carriage with corridor restriction. Stage carriage is intended to meet the requirements of the general public travelling from one destination to another having different purposes whereas a contract carriage is meant for those who want to hire a public service vehicle as a whole collectively for their transport from one destination to another having the same purpose. The Apex Court held that the High Court was not right in holding that the travelling party as a whole need not have a common purpose W.P.(C)Nos.13327 & 14695/2019 120 for their travel and it was sufficient if they had a common destination. The view taken runs counter to the law laid down by the Apex Court in Brijendra Kumar Chaudhari [(1992) 4 SCC 703] and Nirmala Jagdish Chandra Kabra [(1997) 9 SCC 227] and, therefore, bad in law.
10.17. In Noorulla Khan's case (supra), one of the contentions raised before the Apex Court by the holders of All- India Tourist Permits granted under sub-section (9) of Section 88 of the Motor Vehicles Act was that the rules framed by the State Government [i.e., the Andhra Pradesh Motor Vehicles Rules, 1989] under Sections 95 and 96 of the Motor Vehicles Act and the further conditions prescribed in Section 74 of the Act are not applicable to All-India Tourist Permit Vehicles. The Apex Court held that the High Court was not right in declaring ultra vires the Rules framed by the State Government [i.e., clause (c) of sub-rule (1) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules, 1989] providing that the party hiring the contract carriage vehicle should, not only, have the intention of travelling to the same destination but should also have the common purpose of travelling as well. In clause (c) of sub-rule (1) of Rule 297A 'common purpose' has been defined to mean W.P.(C)Nos.13327 & 14695/2019 121 the intention shared alike by all the persons travelling by the public service vehicles to attend a meeting, gathering or function, social, religious, political and the like, or to go to a pilgrimage or visit to place of tourist's interest or both. That it would not include the intention or the act of such persons merely travelling from one common point to another. Clause
(c) of sub-rule (1) of Rule 297A framed by the State Government does not run counter to the provisions of clause (7) of Section 2 of the MV Act either in its intent or in its expression. The rule is in consonance with the intent of clause (7) of Section 2 of the Act. The same has been framed to fulfill the object with which clause (7) of Section 2 has been enacted. Any other interpretation would obliterate the distinction between a stage carriage permit and a contract carriage permit. The Apex Court held clause (c) of sub-rule (1) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules to be intra vires and the finding to the contra recorded by the High Court was set aside. Paragraphs 12 to 16 of the said decision read thus;
"12. In Rule 297A(1)(c) 'common purpose of journey' has been explained to mean common intention shared by all the persons travelling by the vehicle under the W.P.(C)Nos.13327 & 14695/2019 122 contract to attend a meeting, gathering or function which may be social, religious, political and the like or to go on a pilgrimage or place of tourist's interest but it shall not include the intention or the act of such persons of merely travelling from one common point to another.
13. High Court has held that 'common purpose' means that the passengers travelling together need to have, the common intention to travel to a common destination but they need not share the common intention of travelling for the same purpose as well. For instance, where a group of persons engage a contract carriage vehicle for travelling from Delhi to Agra they have the common intention of travelling to the same destination, i.e., from Delhi to Agra but their purpose of travel from Delhi to Agra could be different. In other words, according to the High Court, the words "under a contract" would include both single contract and more than one contract.
14. This point was examined by this Court in Brijendra Kumar Chaudhari v. State of U.P., 1992 (4) SCC 703. It was held that it was not correct to read the words "under a contract" occurring in Section 2(7) of the Act to mean as referring to both a single contract and more than one contract. And in case such a construction is placed then the distinction between the contract carriage and the stage carriage perm would be lost and obliterated. It was held: (SCC pp. 708-10, para.10) "10. xxx [already quoted hereinabove, Para.10.11]"
15. Another case on the point is Nirmala Jagdish Chandra Kabra v. Transport Commissioner, 1997 (9) SCC
227. In this case a writ was filed by an agent who had W.P.(C)Nos.13327 & 14695/2019 123 hired on contract the vehicle from the carriage permit holder seeking an appropriate writ or direction declaring and holding that the authorities had no legal right or power to either seize or detain his vehicles solely on the allegation of collection of individual fare from the passengers at the starting point of journey without picking up or dropping the passengers en route. Petitioner was collecting individual fares per passenger from one destination to another but was not using the vehicle as a tourist vehicle hired to one group party. Writ petition was dismissed by the High Court. Dismissing the appeal it was held by this Court:
"4. xxx [already quoted hereinabove, Para.10.13]"
16. The distinction between a stage carriage permit or a contract carriage permit as envisaged by the Legislature has to be maintained as the two types of permits are intended to meet different requirements. The contract carriages are for those who want to hire the vehicle collectively or individually for a group or a party for their transport to a destination/destinations. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the contract. There has to be only one contract for carrying the passengers mentioned in the contract from one destination to another. An agent or a group of persons/individuals cannot hire a public service vehicle for going from one place to another with passengers having different purposes. If such a construction is put then there would be no distinction between stage carriage or contract carriage permits. If contract carriage permit holder is permitted to pick up individual or a few of them from the starting point of W.P.(C)Nos.13327 & 14695/2019 124 journey and drop them at the last terminus of the route it would virtually be a Stage Carriage with corridor restriction. Stage carriage is intended to meet the requirements of the general public travelling from one destination to another having different purposes whereas a contract carriage is meant for those who want to hire a public service vehicle as a whole collectively for their transport from one destination to another having the same purpose. High Court was not right in holding that the travelling party as a whole need not have a common purpose for their travel and it was sufficient if they had a common destination. The view taken runs counter to the law laid down by this Court in Brijendra Kumar Chaudhari and Anr. and Nirmala Jagdish Chandra Kabra cases (supra) and, therefore, bad in law. High Court was not right in declaring ultra vires the Rules framed by the State Government providing that the party hiring the contract carriage vehicle should, not only, have the intention of travelling to the same destination but should also have the common purpose of travelling as well. In Rule 297A(1)
(c) 'common purpose' has been defined to mean the intention shared alike by all the persons travelling by the public service vehicles to attend a meeting, gathering or function, social, religious, political and the like, or to go to a pilgrimage or visit to place of tourist's interest or both. That it would not include the intention or the act of such persons merely travelling from one common point to another This Rule framed by the State Government does not run counter to the provisions of Section 2(7) of the Act either in its intent or in its expression. The rule W.P.(C)Nos.13327 & 14695/2019 125 is in consonance with the intent of Section 2(7) of the Act. The same has been framed to fulfill the object with which Section 2(7) has been enacted. Any other interpretation would obliterate the distinction between a stage carriage permit and a contract carriage permit." 10.18. In Sunilraj v. State of Kerala and others [2019 (2) KLT 211] this Court held that the fundamental difference between a 'contract carriage' and a 'stage carriage' is that in the former there is a prior contract by the passenger or passengers for that carriage to be used as a whole for a fixed or agreed sum, while in the latter there is absence of such a prior contract and the passengers can board that carriage en route in individual capacity and pay the fare for the distance they travel. Therefore, if a 'contract carriage', which is granted permit under Section 74 of the MV Act is operated as a 'stage carriage', which requires grant of stage carriage permit under Section 72 of the said Act, it will amount to contravention of permit conditions.
10.19. The legal principles that can be culled out from the decisions referred to supra are as follows;
(i) The distinction between a 'contract carriage' and a stage carriage is that a contract carriage is engaged for the whole of the journey between two points for the carriage of a person or persons W.P.(C)Nos.13327 & 14695/2019 126 hiring it but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel. [Roshan Lal Gautham - AIR 1965 SC 991];
(ii) The dominant factor that determines whether a transport vehicle is plied as a 'contract carriage' or as a 'stage carriage' is the actual user of the vehicle and not the permit granted authorising the use. The contract, express or implied, to use the vehicle must be as a whole for a fixed sum. The essential condition is that a single party or person should be exercising full control for the use of the vehicle. If there is no single contract in respect of the vehicle and if no person or leader of the party could exercise full control of the vehicle and several passengers have separately contracted for the use of the vehicle and paid individual fares, such a transport vehicle cannot fall within the definition of 'contract carriage'. But if there is a prior contract for the use of the vehicle as a whole with the owner, the mere fact that individual fares were collected by the leader of the party from the passengers does not make the vehicle a 'stage carriage'. [V. Govindarajulu - AIR 1986 AP 7 (FB)];
(iii) It is not possible to read the words 'under a contract' in clause (7) of Section 2 of the MV Act, 1989 as referring to both a single contract and W.P.(C)Nos.13327 & 14695/2019 127 more than one contract. If such a construction is accepted there would be no distinction between 'stage carriage' and 'contract carriage' permits. A 'stage carriage' is intended to meet the requirements of the general travelling public. On the other hand, 'contract carriages' are for those who want to hire the vehicle collectively or individually for a group or party for their transport from place to place and the whole vehicle is at their disposal. The contract shall be prior and the persons who are to be carried shall be known prior to the journey is also clear from the other limitation that the vehicle cannot stop to pick up or set down passengers not included in the contract anywhere during the journey. If the contract carriage permit holder can pick up individual passengers at the starting point of the journey it is virtually a stage carriage with corridor restriction. The definition of 'contract carriage' in clause (7) of Section 2 of the MV Act, 1988 has added the words 'for the carriage of passengers mentioned therein' (contract) which were not there in clause (3) of Section 2 of the MV Act, 1939 as amended by Act 56 of 1960. These words clearly show that there must be a prior contract and the passengers shall be settled in advance. [Brijendra Kumar Chaudhari - (1992) 4 SCC 703];
(iv) The very permit for which the contract for carriage of the passengers granted should contain the names of the passengers to carry from one destination to another destination without picking W.P.(C)Nos.13327 & 14695/2019 128 up or setting down en route for hire or reward but when the holder of a permit is another and permits them to carry the passengers and make the contract dehors those mentioned in the list of passengers enclosed to the permit as contract carriage and take the passengers from one destination to another, even without picking up or setting down en route, the necessary consequence would be that the vehicle has been or is being used as a 'stage carriage' but not a 'contract carriage'. [Nirmala Jagdishchandra Kabra - (1997) 9 SCC 227]
(v) The distinction between a 'stage carriage' permit and a 'contract carriage' permit, as envisaged by the Legislature has to be maintained as the two types of permits are intended to meet different requirements. The 'contract carriages' are for those who want to hire the vehicle collectively or individually for a group or a party for their transport to a destination/destinations. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the contract. There has to be only one contract for carrying the passengers mentioned in the contract from one destination to another. An agent or a group of persons/individuals cannot hire a public service vehicle for going from one place to another with passengers having different purposes. If contract carriage permit holder is permitted to pick up individual or a few of them from the starting point of journey and drop them at the last terminus of W.P.(C)Nos.13327 & 14695/2019 129 the route it would virtually be a 'stage carriage' with corridor restriction. A 'stage carriage' is intended to meet the requirements of the general public travelling from one destination to another having different purposes whereas a 'contract carriage' is meant for those who want to hire a public service vehicle as a whole collectively for their transport from one destination to another having the same purpose. [Noorulla Khan -
(2004) 6 SCC 194];
(vi) The fundamental difference between a 'contract carriage' and a 'stage carriage' is that in the former there is a prior contract by the passenger or passengers for that carriage to be used as a whole for a fixed or agreed sum, while in the latter there is absence of such a prior contract and the passengers can board that carriage en route in individual capacity and pay the fare for the distance they travel. If a 'contract carriage', which is granted permit under Section 74 of the MV Act is operated as a 'stage carriage', which requires grant of stage carriage permit under Section 72 of the said Act, it will amount to contravention of permit conditions. [Sunilraj - 2019 (2) KLT 211].
10.20. Therefore, a 'contract carriage' is meant for those who want to hire the vehicle collectively or individually for a group or a party having the same purpose, for their transport from one place to another. The vehicle has to be hired as a W.P.(C)Nos.13327 & 14695/2019 130 whole for the carriage of passengers mentioned in the contract, i.e., the whole vehicle will be at their disposal. On the other hand, a 'stage carriage' is intended to meet the requirements of the general public travelling from one place to another having different purposes. Therefore, an agent or a group of persons/individuals cannot hire a 'contract carriage' for going from one place to another with passengers having different purposes. If individual passengers having different purposes are picked up in a 'contract carriage', at the starting point of the journey or en route, even if such passengers are included in the contract, it is virtually a 'stage carriage' with corridor restriction.
11. The concept of 'All-India Permit' - to promote tourism:-
11.1. By sub-section (7) of Section 63 of the MV Act, 1939, which came into force on 01.10.1970 by the Motor Vehicles (Amendment) Act, 1969 a concept of tourist permit for tourist vehicle was introduced enabling State Transport Authority of any State to grant permits valid for the whole or any part of India, in respect of such number of tourist vehicles as the Central Government may, in respect of that State, W.P.(C)Nos.13327 & 14695/2019 131 specify in this behalf. By introduction of sub-section (7) in Section 63, the concept of a permit to be granted by a State Transport Authority of a State within the limits of the quota prescribed by the Central Government was introduced, which would enable the holder of the permit to ply tourist vehicle in the whole or any part of India. The impediment in free flow of tourist traffic was sought to be suitably removed by this provision. The underlying object for creating this new class of permit was to promote tourism.
11.2. The provisions under sub-section (7) of Section 63 of the MV Act, 1939 and sub-section (9) of Section 88 of the MV Act, 1989, which deals with grant of 'All-India Tourist Permits' to promote tourism came up for consideration before the Apex Court and the High Court of Karnataka in the following decisions;
11.3. In B.A. Jayaram v. Union of India [(1984) 1 SCC 168] the Apex Court noticed that, prior to 1969 there was no concept of what may be termed as an 'All-India Permit' which would be valid for the whole of India and which would enable the holder of the permit to ply his contract carriage throughout India. Sub-section (1) of Section 63 of the MV Act, W.P.(C)Nos.13327 & 14695/2019 132 1939 provides that, except as may be otherwise prescribed a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region unless the permit has been countersigned by the Regional Transport Authority of that other region and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned. The procedure prescribed for obtaining the countersignature of the transport authorities of other regions and States was cumbersome and was not conducive to the development of all-India or inter-state tourist traffic. In order to remedy the situation and promote all-India and inter-state tourist traffic, the Parliament amended the MV Act and introduced sub-section (7) of Section 63 by amending Act 56 of 1969. This new provision enables the State Transport Authority of every State to grant permits valid for the whole or any part of India, in respect of such number of tourist vehicles as the Central Government may, in respect of that State specify in that behalf. Preference is to be given, to applications for permits from the India Tourism Development Corporation, a State Tourism Development Corporation, a State Tourist W.P.(C)Nos.13327 & 14695/2019 133 Department and such operators and tourist cars or such travel agents as may be approved in that behalf by the Central Government. The Government of India in exercise of its power under sub-section (7) of Section 63 of the MV Act, issued notifications specifying the number and class of tourist vehicles in respect of which each of the State Transport Authorities of the States could grant All-India Tourist Permits. The last of the notifications specified that each State Transport Authority could issue 50 permits for tourist omnibuses.
11.4. In B.A. Jayaram's case, the Apex Court noticed that the scheme for grant of 'All-India Permits', designed to promote all-India and inter-state tourist traffic, soon fell into abuse at the hands of scheming transport operators. Transport operators from big and comparatively prosperous and advanced States, well versed in the intricacies of the transport business very soon flocked to small and comparatively poor and less advanced States like Manipur and Nagaland to apply for and obtain all-India permits from the State Transport Authorities of those States. Once the permits were obtained and the vehicles were registered these small States saw the last of the operators. These tourist vehicles practically W.P.(C)Nos.13327 & 14695/2019 134 'colonised' Karnataka and like States and started operating more or less as stage carriages within the particular State, never and rarely if ever, moving out of the State. There was no thought or question of undertaking all-India or inter-state tours and out went the worthy object of sub-section (7) of Section 63. In the counter affidavit filed on behalf of the State of Karnataka in some of the Writ Petitions it was stated that, though All-India Tourist Permits were obtained by the residents of other States, the permits were used by taking the vehicles and keeping them in the State of Karnataka. The operators run their tourist buses at fixed timings from particular places like the Stage Carriages operated by the Karnataka State Road Transport Corporation and other private stage carriage operators. On checking of the vehicles and verification of the passengers, it was found that the passengers found in the vehicle were not genuine tourists and the drivers or the persons in charge of the vehicles were not in a position to produce the trip sheet name list with whom they entered into the contract. It was also found that the passengers found in the vehicles had boarded the buses from one point without any contract or otherwise and without they being tourists. The W.P.(C)Nos.13327 & 14695/2019 135 passengers found in the tourist buses are regular passengers going from one place to another for purposes other than tourism. These vehicles were found catering to the needs of general travelers who can make use of the stage carriages operated by the Karnataka State Road Transport Corporation or other private stage carriage operators. As a result of indiscriminate misuse of the vehicles as stage carriages even though the permits were obtained under sub-section (7) of Section 63 of the Motor Vehicles Act for tourism, the State Government has suffered considerable loss in Revenue. The very object of obtaining permits under sub-section (7) of Section 63 of the Act, which intended to promote tourism has been misused by these operators of the tourist buses by plying their vehicles regularly as stage carriages. Most of the permits obtained under sub-section (7) of Section 63 of the Act in the States other than the State of Karnataka are made use of for the purported use of running the tourist buses by actually the permits were misused to run the tourist vehicle either as stage carriages or as contract carriages. The Transport Commissioner of Maharashtra submitted a report to the Government of Maharashtra, a copy of which was made available to the Apex W.P.(C)Nos.13327 & 14695/2019 136 Court, wherein it was stated that most of these buses for all practical purposes operate as stage carriage services masquerading as contract carriages. The All-India Tourist Buses, on the other hand, are exploiting the loopholes available in the law and operate point to point passenger services on routes where the volume of traffic is heavy, viz., routes like Bombay-Kolhapur, Bombay-Mangalore (Bangalore), Bombay-Panaji, Bombay-Belgaum, Bombay-Ahmedabad and Bombay-Indore. On 9/10 April, 1983 the Transport Commissioner had personally visited the check Post bordering Gujarat on the Bombay-Ahmedabad road and found from the records of the check post that as many as 115 All-India Tourist Buses are regularly plying on this route. The petitioners, who are transport operators holding All-India Tourist Permits, denied that any of them was guilty of any malpractice or misuse of the permits held by them. But, notwithstanding the petitioners' denial, the Apex Court observed as follows; "we do not have the slightest doubt that the allegations of misuse and malpractice made in the counter affidavit, filed on behalf of the Karnataka Government are generally and substantially correct". The Apex Court noticed that complaints about the W.P.(C)Nos.13327 & 14695/2019 137 abuse of the scheme have been made to the Central Government and also to the Transport Advisory Council.
Paragraphs 3 and 4 of the said decision read thus;
"3. This scheme for the grant of 'All-India Permits', designed as it was to promote all-India, and inter-state tourist traffic, soon fell into abuse at the hands of scheming transport operators. Within the scheme itself lay the seeds for abuse. The scheme enabled the State Transport Authority of each State to issue fifty all-India permits, uniformly irrespective of the size of the State its resources its accessibility its communications, its facilities, the availability of transport services and operators in the State with the necessary expertise experience and finance to operate all-India tourist services and a host of such brother factors. Apparently it was thought undesirable to make a distinction between State and State on what were perhaps thought to be elusive criteria and possibly the scheme was expected to give a boost to the transport business in the smaller and less advanced States and, of course, it was necessary to obtain the agreement and cooperation of all the States. But the result was that transport operators from big and comparatively prosperous and advanced States, well versed in the intricacies of the transport business very soon flocked to small and comparatively poor and less advanced States like Manipur and Nagaland to apply for and obtain all-India permits from the State Transport Authorities of those States. It is conceded before us that a large number of person holding all-India permits from W.P.(C)Nos.13327 & 14695/2019 138 some of these small States do not belong to these States at all but are transport operators coming from far off States. Another factor which appears to have influenced the flocking of transport operators from other States to States like Nagaland and Manipur is the nationalisation of contract carriage service in States like Karnataka. Once the permits were obtained and the vehicles were registered these small States saw the last of the operators. Having obtained the permits, the operators with their vehicles flocked back to the parent State of the operators (not of the vehicles) or to a State like Karnataka where all contract carriages having been nationalised no private contract carriage was available and there was therefore a great opportunity to ply the vehicles as contract carriages within the State.
4. States like Karnataka were swamped by tourist vehicles from all over the country registered in other States. These tourist vehicles practically 'colonised' Karnataka and like States and started operating more or less as stage carriages within the particular State, never and rarely if ever, moving out of the State. There was no thought or question of undertaking all-India or inter- state tours and out went the worthy object of Section 63(7). Quick and easy money with the least trouble and in the shortest time, by whatever method was the only object. In the counter affidavit filed on behalf of the State of Karnataka in some of the Writ Petitions, it is stated.
"Though the vehicles were registered outside the State of Karnataka and they have been permanently stationed in the State of Karnataka W.P.(C)Nos.13327 & 14695/2019 139 and particularly at Bangalore, and the vehicles were/are being plied as Stage Carriages. Though All-India Tourist Permits were obtained by the residents of other States, the permits were used by taking the vehicles and keeping them in the State of Karnataka. The operators run their tourist buses at fixed timings from particular places like the Stage Carriages operated by the Karnataka State Road Transport Corporation (hereinafter called the KSRTC) and other private stage carriage operators. On checking of the vehicles and verification of the passengers, it was found that the passengers found in the vehicle were not genuine tourists and the drivers or the persons in charge of the vehicles were not in a position to produce the trip sheet name list with whom they entered into contract. It was also found that the passengers found in the vehicles had boarded the buses from one point without any contract or otherwise and without they being tourists. The passengers found in the tourist buses are regular passengers going from one place to another for purposes other than tourism. These vehicles were found catering to the needs of general travelers who can make use of the Stage Carriages operated by the KSRTC or other private stage carriage operators. The respondent produces herewith statements as Annexures 1 to 9 showing the clandestine operation of the vehicles covered by All-India Tourist Permits the remarks and irregularities, noticed by the Motor Vehicles Inspectors while checking the vehicles covered by All-India Tourist W.P.(C)Nos.13327 & 14695/2019 140 Permits the frequent detection of these vehicles, running as Stage Carriages by collecting individual fares and picking passengers from one point and setting down them at another point and bringing different passengers in the return journey. From the statements enclosed, it is clear that the operators of the tourist buses covered by All-India Tourist Permits, have misused the Tourist Buses by running them as regular stage carriages competing with the KSRTC buses and other private stage carriages within the State. As a result of indiscriminate misuse of the vehicles as Stage Carriages even though the permits were obtained under Section 63(7) of the Central Act for Tourism, the State Government has suffered considerable loss in Revenue. These buses actually made use of the passengers which would have normally gone to the KSRTC buses and other private carriages. The very object of obtaining permits under Section 63(7) of the Central Act, which intended to promote tourism has been misused by these operators of the Tourist buses by plying their vehicles regularly as stage carriages. Most of the permits obtained under Section 63(7) of the Central Act in the States other than the State of Karnataka are made use of for the purported use of running the tourist buses by actually the permits were misused to run the tourist vehicle either as stage carriages or as contract carriages."
A survey made by the Transport Commissioner of Maharashtra revealed a similar state of affairs. The W.P.(C)Nos.13327 & 14695/2019 141 Transport Commissioner submitted a report to the Government of Maharashtra a copy of which has been made available to us. It is stated in the report:
"Our estimate is that out of these 1300 permits anything between 300 to 406 buses are operating in Maharashtra with Bombay as the main centre. Most of these buses for all practical purposes operate as stage carriage services masquerading as contract carriages. In Maharashtra the ordinary passenger transport by stage carriages and contract carriages has been completely nationalised. The All-India Tourist Buses on the other hand are exploiting the loopholes available in the law and operate point to point passenger services on routes where the volume of traffic is heavy, viz., routes like Bombay - Kolhapur, Bombay - Mangalore (Bangalore), Bombay - Panaji, Bombay -
Belgaum, Bombay - Ahmedabad and Bombay -
Indore ... ....
On April 9/10, 1983 the Transport Commissioner had personally visited the Charoti Check Naka which is our border check Post bordering Gujarat on the Bombay-Ahmedabad road. From the records of the check post he found that as many as 115 All-India Tourist Buses are regularly plying on this route. After making an analysis of these 115 All-India Tourist Buses he found that 41 permits had been issued by the State Transport Authority of Manipur. 17 had been issued by State Transport Authority Nagar Haveli, 8 by the State Transport Authority.
Meghalaya and 5 by the State Transport W.P.(C)Nos.13327 & 14695/2019 142 Authority Nagaland, A large number of All-India Tourist Buses operating with their base in Bombay appear to have been issued by Manipur. Nagaland and the Union Territory of Dadra Nagar Haveli."
The petitioners, who are transport operators holding all- India permits deny that any of them was guilty of any malpractice or misuse of the permits held by them. But, notwithstanding the petitioners' denial we do not have the slightest doubt that the allegations of misuse and malpractice made in the counter affidavit, filed on behalf of the Karnataka Government are generally and substantially correct. Complaints about the abuse of the scheme appear to have been made to the Central Government and the Transport Advisory Council also. We are also told that the question of meeting the challenge owed by these abuses is receiving the attention of the Central Government." (underline supplied) 11.5. In B.A. Jayaram's case the Apex Court was dealing with the challenge made against the notification dated 31.03.1981 of the State of Karnataka, whereby the concession given to the holders of all-India permits, by way of exempting the all-India tourist vehicles registered in other States from payment of tax under the Karnataka Motor Vehicles Taxation Act, 1957, if tax had already been paid in the home State was withdrawn. In paragraph 8 of the judgment, the Apex Court observed as follows; "Taxes of a compensatory and regulatory W.P.(C)Nos.13327 & 14695/2019 143 character are outside the expanse of Article 301 of the Constitution. Regulatory measures and compensatory taxes far from impeding the free flow of trade and commerce, often promote such free flow of trade and commerce by creating agreeable conditions and providing appropriate services. All that is necessary to uphold a tax which purports to be or is claimed to be compensatory tax is 'the existence of a specific, identifiable object behind the levy and a nexus between the subject and the object of the levy' it is not necessary that the money realised by the levy should be put into a separate fund or that the levy should be proportionate to the expenditure. There can be no bar to an intermingling of the revenue realised from regulatory and compensatory taxes and from the taxes of a general nature nor can there be any objection to more or less expenditure being incurred on the object behind the compensatory and regulatory levy than the realisation from the levy." In Sharma Transport v. Government of A.P. [(2002) 2 SCC 188], the Apex Court held that a mere claim that tax is compensatory would not suffice. To that extent, the observations in Jayaram's case (supra) do not reflect the correct position in law. Whether a tax is compensatory or not W.P.(C)Nos.13327 & 14695/2019 144 cannot be made to depend on the preamble of the statute imposing it. A tax cannot also be said not to be compensatory because the precise or specific amount collected is not actually used to providing any facilities.
11.6. In Ashutosh Swain v. State Transport Authority [(1985) 2 SCC 636], in the context of sub-section (7) of Section 63 of the MV Act, 1939, which came into force on 01.10.1970 by the Amending Act 56 of 1969, the Apex Court held that, by the Amending Act 56 of 1969, a concept of a tourist permit for a tourist vehicle was introduced in the Act. Sub-section (7) of Section 63 was introduced enabling State Transport Authority of any State to grant permits valid for the whole or any part of India, in respect of such number of tourist vehicles as the Central Government may, in respect of that State, specify in this behalf and such applications have to be dealt with according to the provisions of Sections 49, 50, 51, 57, 58, 59, 59A, 60, 61 and 64. This scheme of law would manifestly reveal that a permit without the necessary countersignatures as hereinabove indicated, enabling the permit holder to have the whole of India as its area of operation was unknown to the Act. By introduction of sub- W.P.(C)Nos.13327 & 14695/2019 145 section (7) in Section 63, the concept of a permit to be granted by a State Transport Authority of a State within the limits of the quota prescribed by the Central Government which would enable the holder of the permit to operate in the whole of India, was introduced. The underlying object for creating this new class of permit was to promote tourism. If a tourist vehicle is hired by a tourist party for moving from State to State, the vehicle cannot be taken to another State from the place of commencement of journey unless a valid contract carriage permit of that State is obtained or the existing permit is countersigned. This would impede tourism causing inconvenience to the tourists. To remove this barrier, Parliament introduced sub-section (7) in Section 63 envisaging a new kind of permit to be granted by the State Transport Authority of the State within the prescribed quota which would enable the holder of the permit to ply the tourist vehicle in the whole or any part of India. The impediment in the free flow of tourist traffic was sought to be suitably removed by this provision. Paragraphs 4 and 5 of the said decision read thus;
"4. The scheme of the Motor Vehicles Act forbids an owner of a transport vehicle to use or permit the use of a vehicle in any public place (whether or not such W.P.(C)Nos.13327 & 14695/2019 146 vehicle is actually carrying any passenger or goods) save in accordance with the conditions of a permit granted or countersigned by the authority therein mentioned authorising the use of the vehicle in the place and in the manner in which the vehicle is to be used. The expression 'transport vehicle' is defined in Section 2(33) of the Act to mean 'a public service vehicle or a goods vehicle'. 'Public Service Vehicle' is, defined in Section 2(25) of the Act to mean 'any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage'. Thus the scheme of the Act envisages three kinds of permits in respect of a public service vehicle, namely, permit for the use of motor cab or a permit to use an omnibus for contract carriage or a permit to use the same as a stage carriage. Section 46 provides for application to be made for stage carriage permit. The holder of a stage carriage permit can use the vehicle to carry passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. The second kind of permit in respect of a public service vehicle is the one contemplated by Section 49 and styled as 'contract carriage permit.' A vehicle in respect of which there is a contract carriage permit can be used for carrying passengers for hire or reward under a contract express or implied for the use of the vehicle as a whole at or for a fixed or agreed rate of sum- (i) on a time basis whether or not with reference to any route or distance, or (ii) from one point to another, and in either case without stopping to pick up, or set down W.P.(C)Nos.13327 & 14695/2019 147 along the line of route passengers not included in the contract, and includes a motor cab notwithstanding that the passengers may pay separate fares. By the Amending Act 56 of 1969, a concept of a tourist permit for a tourist vehicle was introduced in the Act. 'Tourist vehicle' is defined in Section 2(29A) to mean 'a contract carnage constructed or adapted and equipped and maintained in accordance with such specification as the State Government may, by notification in the Official Gazette, specify in that behalf.' By the same Amending Act, sub-section (7) of Section 63 was introduced enabling State Transport Authority of any State to grant permits valid for the whole or any part of India, in respect of such number of tourist vehicles as the Central Government may, in respect of that State, specify in this behalf and such applications have to be dealt with according to the provisions of Sections 49, 50, 51, 57, 58, 59, 59A, 60, 61 and 64. Section 44 confers power on the State Government to set up such transport authorities in the State being State Transport Authority and Regional Transport Authority. The State Transport Authority will have its jurisdiction over the whole State and the State will be divided into various regions in respect of which a Regional Transport Authority will be specified. Anyone desiring to obtain either a stage carriage permit or it contract carriage permit has to apply to the Regional Transport Authority in whose jurisdiction the vehicle is sought to be operated. Section 63 provides that permit granted by the Regional Transport Authority of any region, shall not be valid in any other region unless the permit has been W.P.(C)Nos.13327 & 14695/2019 148 countersigned by the Regional Transport Authority of that region and a permit granted in one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned. This scheme of law would manifestly reveal that a permit without the necessary countersignatures as hereinabove indicated, enabling the permit holder to have the whole of India as its area of operation was unknown to the Act. By introduction of sub-section (7) in Section 63, the concept of a permit to be granted by a State Transport Authority of a State within the limits of the quota prescribed by the Central Government which would enable the holder of the permit to operate in the whole of India, was introduced. For the sake of brevity, this permit is described as all-India tourist permit.
5. Sub-section (7) of Section 63 provides that for obtaining such a permit as envisaged therein which enables the holder of such a permit to ply vehicle as a tourist vehicle in the whole of India has to make an application to the State Transport Authority constituted for the State under Section 44. The underlying object for creating this new class of permit was to promote tourism. If a tourist vehicle is hired by a tourist party for moving from State to State, the vehicle cannot be taken to another State from the place of commencement of journey unless a valid contract carriage permit of that State is obtained or the existing permit is countersigned. This would impede tourism causing inconvenience to the tourists. To remove this barrier, Parliament introduced sub-section (7) in Section 63 envisaging a new kind of W.P.(C)Nos.13327 & 14695/2019 149 permit to be granted by the State Transport Authority of the State within the prescribed quota which would enable the holder of the permit to ply the tourist vehicle in the whole or any part of India. The impediment in the free flow of tourist traffic was sought to he suitably removed by this provision." (underline supplied) 11.7. In State of A.P. v. Noorulla Khan [(2004) 6 SCC 194] [a decision referred to hereinbefore at Para. 10.14], in the context of clause (f) of sub-rule (6) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules, 1989, which provides for the execution of a written contract between the hiring party or its authorised representative containing the essential particulars and stipulations contained in sub-clauses (i) to (viii) thereof, while hiring a public service vehicle, the the Apex Court held that the contract may be express or implied as contemplated by sub-section (7) of Section 2 of the Motor Vehicles Act, but the names of the passengers to be carried have to be settled prior to undertaking the journey. Clause (f) of sub-rule (6) of Rule 297A does not go beyond the purview of the Act. Rather it carries out the purpose of the Act. Essentially it provides for settling the names of the passengers undertaking the journey under an agreement for hiring a public service vehicle. Passengers who are to be carried are to be W.P.(C)Nos.13327 & 14695/2019 150 known prior to the journey as the definition of contract carriage in sub-section (7) of Section 2 includes the words 'for the carriage of passengers mentioned therein'. These words clearly show that there must be a prior contract and the passengers shall also be settled in advance. Therefore, the High Court erred in striking down clause (f) of sub-rule (6) of Rule 297A. The Apex Court held that clause (f) of sub-rule (6) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules to be intra vires and the finding to the contra recorded by the High Court was set aside. Paragraphs 17 to 19 of the said decision read thus;
"17. High Court has struck down Rule 297A(6)(f) as it provides for the execution of a written contract between the hiring party and the agent while hiring a public service vehicle. According to the High Court the contract can be in writing as well as an implied contract. Under Section 2(7) a contract could be either express or implied and therefore it was not mandatory to have a written contract only. It could be an oral contract as well. The Rule providing to have a written contract mandatorily goes beyond the purview of the Act and therefore bad in law. Contract could be implied also as the definition of the contract carriage contemplates express as well as an implied contract.
18. Rule 297A(6)(f) provides for drawing up of an agreement in writing, providing therein the list of all the W.P.(C)Nos.13327 & 14695/2019 151 members of the hiring party giving particulars of their names, father's/husband's name, age, full address, the period for which the vehicle is engaged, places to be visited etc. and "the nature of the common purpose of the journey". This Court in Brijendra Kumar Chaudhari & Anr. (supra) while interpreting Section 2(7) of the Act has held that the contract entered between the parties shall be prior and persons who are to be carried shall also be known prior to the journey. Similarly, in Nirmala Jagdish Chandra Kabra case (supra) it has been held that the permit which grants the contract for carriage of the passengers should contain the names of the passengers to be carried from one destination to another without picking up or dropping the passengers en-route. Contract may be express or implied as contemplated by Section 2(7) but the names of the passengers to be carried have to be settled prior to undertaking the journey. Rule 297A(6)(f) does not go beyond the purview of the Act. Rather it carries out the purpose of the Act. Essentially it provides for settling the names of the passengers undertaking the journey under an agreement for hiring a public service vehicle. Passengers who are to be carried are to be known prior to the journey as the definition of contract carriage in Section 2(7) includes the words "for the carriage of passengers mentioned therein". These words clearly show that there must be a prior contract and the passengers shall also be settled in advance. High Court erred in striking down Rule 297A(6)(f).
19. For the reasons stated above both the Rules 297A(1)(c) and 297A(6)(f) are held to be intra vires of W.P.(C)Nos.13327 & 14695/2019 152 the Act and the findings recorded by the High Court to the contrary are set aside."
11.8. In Noorulla Khan's case, after holding clause (c) of sub-rule (1) of Rule 297A and clause (f) of sub-rule (6) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules to be intra vires of the Motor Vehicles Act, the Apex Court dealt with the challenge made against the finding of the High Court that the rules framed by the Central Government under sub-section (14) of Section 88 of the Motor Vehicles Act alone would be applicable to All-India Tourist Permit and not the Rules framed by the State Government. The Apex Court held that under sub- section (9) of Section 88, the State Transport Authority has been empowered to grant All-India Tourist Permit for the purpose of promoting tourism, notwithstanding anything contained in sub-section (1) of Section 88 and subject to the Rules to be made by the Central Government under sub- section (14) of Section 88. From the conjoint reading of sub- sections (9), (11) and (14) of Section 88 of the Motor Vehicles Act, it is abundantly clear that it is the Central Government alone which has been authorised to frame the Rules as well as to prescribe the conditions for the purposes of all-India tourist vehicles. The power to make rules under Sections 95 and 96 W.P.(C)Nos.13327 & 14695/2019 153 would not include the power to frame rules applicable to All- India Tourist Permit which is exclusively vested in the Central Government. The power to frame rules and prescribe conditions for the All-India Tourist Permit is exclusively vested in the Central Government and the High Court was right in holding that the State Government would have no jurisdiction to either frame the Rules or prescribe conditions for All-India Tourist Permits. Paragraphs 20 to 23 of the said decision read thus;
"20. Coming to the last point wherein the High Court has held that the rules framed by the Central Government under Section 88(14) would alone be applicable to all-India tourist permit and not the Rules framed by the State Government, it was contended by the learned counsel for the appellants that all-India tourist permits were basically contract carriages. 'Tourist vehicle' is defined under Section 2(43) to mean a contract carriage. The permits granted under Section 88(9) enable these vehicles to be used in more than one State but only for tourist purposes. Apart from this difference in the actual area of operation there is no other difference between a contract carriage and an all- India tourist vehicle. An all-India tourist vehicle has to comply with the norms of a contract carriage. The vehicle in any case has to be restricted for the journey as a whole from one end to the other without picking up any passenger in between. The journey is one contract W.P.(C)Nos.13327 & 14695/2019 154 of a round trip for the whole journey to and from with one common purpose. On checking it was found that all- India tourist vehicles were indulging in illicit operation as stage carriages and not as contract carriages.
21. We do not find any force in this submission. Section 88 provides that except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned. Sub-section (9) which provides for the grant of all-India tourist permits, which reads as:
"88(9) Notwithstanding anything contained in sub-section (1) but subject to any rules that may be made by the Central Government under sub-section (14), any State Transport Authority may, for the purpose of promoting tourism, grant permits in respect of tourist vehicles valid for the whole of India, or in such contiguous States not being less than three in number including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application and the provisions of Sections 73, 74, 80, 81, 82, 83, 84, 85, 86, clause (d) of sub-section (1) of Section 87 and Section 89 shall, as far as may be, apply in relation to such permits."
22. It is clear from the reading of this provision that the W.P.(C)Nos.13327 & 14695/2019 155 State Transport Authority has been empowered to grant all-India tourist permit for the purpose of promoting tourism, notwithstanding anything contained in sub- section (1) of Section 88 and subject to the Rules to be made by the Central Government under sub-section (14) of Section 88, for the whole of India or such contiguous States not less than three in number including the State in which the permit is issued. Further the provisions of Sections 73, 74, 80, 81, 82, 83, 84, 85, 86, clause (d) of sub-section (1) of Section 87 and Section 89 are applicable as far as may be in relation to such permits. Sub-section (11) reads as under:
"88(11) The following shall be conditions of every permit granted under sub-section (9), namely: -
(i) every motor vehicle in respect of which such permit is granted shall conform to such description, requirement regarding the seating capacity, standards of comforts, amenities and other matters, as the Central Government may specify in this behalf;
(ii) every such motor vehicle shall be driven by a person having such qualifications and satisfying such conditions as may be specified by the Central Government; and
(iii) such other conditions as may be prescribed by the Central Government."
Sub-section (11) provides that every motor vehicle to which all-India tourist permit has been granted shall conform to the description, requirement of seating capacity, standards of comforts, amenities and other W.P.(C)Nos.13327 & 14695/2019 156 matters, as specified by the Central Government in this behalf. Further, such vehicles have to be driven by persons having such qualifications and satisfying such conditions as may be specified by the Central Government. Other such conditions have also to be prescribed by the Central Government.
23. Sub-section (14) reads as under:
"88(14)(a) The Central Government may make rules for carrying out the provisions of this section.
(b) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely.-
(i) the authorisation fee payable of the issue of a permit referred to in sub-sections (9) and (12);
(ii) the fixation of the laden weight of the
motor vehicle;
(iii) the distinguishing particulars or marks to be carried or exhibited in or on the motor vehicle;
(iv) the colour or colours in which the motor vehicle is to be painted;
(v) such other matters as the appropriate
authority shall consider in granting a
national permit.
Explanation.- In this section,
xxx xxx"
This sub-section empowers the Central Government to frame Rules for carrying out the provisions of this Section as well as for providing for all or any of the W.P.(C)Nos.13327 & 14695/2019 157 matters mentioned in clause (b) of this Section. From the conjoint reading of sub-sections (9), (11) and (14), referred to above, it is abundantly clear that it is the Central Government alone which has been authorised to frame the Rules as well as to prescribe the conditions for the purposes of all-India tourist vehicles. The power to make rules under Sections 95 and 96 would not include the power to frame rules applicable to all-India tourist permit which is exclusively vested in the Central Government. The power to frame rules and prescribe conditions for the all-India tourist permit is exclusively vested in the Central Government and the High Court was right in holding that the State Government would have no jurisdiction to either frame the Rules or prescribe conditions for the all-India tourist permits.
Such permits would be exclusively governed by the Rules framed by the Central Government or the conditions prescribed by the Central Government. The judgment of the High Court in so far as it has held that it is the Rules framed by the Central Government only which would be applicable to all-India tourist permits and not the Rules framed by the State Government is upheld."
11.9. In Satish N. Narayan and others v. State of Karnataka and others [2017 ILR (Kar.) 735 : AIR 2017 (NOC) 376 (KAR.)], a learned Judge of the Karnataka High Court held that a permit issued under sub-section (9) of Section 88 of the MV Act, 1988 is only for those vehicles which W.P.(C)Nos.13327 & 14695/2019 158 shall be used 'solely or exclusively for transporting tourists'. Hence, called 'Tourist Vehicles'. Therefore, tourist vehicles cannot carry commuters. The use of the word 'Tourist' which precedes the word 'Permit' cannot be ignored. The use of the said word harks back to the Statement of Objects and Reasons for amending Section 63 of the MV Act, 1939: the vehicle must be 'used solely or exclusively for tourists'. Thus, the permit under sub-section (9) of Section 88 of the MV Act, 1988 is meant for those vehicles which are used 'only for the tourists'. Hence, the permit under Section 74 and sub-section (8) of Section 88 of the Act also differ with regard to the status of the passenger.
11.10. The term 'tourist' means a person, who is visiting a place for pleasure and interest, especially when he is on holiday. The term 'tourism' means the business of providing service to people on holidays, for examples, hotels, restaurants and trips. [Collins Cobuild English Dictionary] 11.11. In B.A. Jayaram' case [(1984) 1 SCC 168] the Apex Court noticed that prior to 1969 there was no concept of 'All-India Permit', which would be valid for the whole of India and which would enable the holder of the permit to ply his W.P.(C)Nos.13327 & 14695/2019 159 contract carriage throughout India. The procedure prescribed for obtaining the countersignature of the transport authorities of other regions and States was cumbersome and was not conducive to the development of all-India or inter-state tourist traffic. In order to remedy the situation and promote all-India and inter-state tourist traffic, the Parliament amended the MV Act, 1935 and introduced sub-section (7) of Section 63, by the Motor Vehicles (Amendment) Act, 1969. In the said decision, the Apex Court noticed further that the scheme for grant of 'All-India Permits', designed to promote all-India and inter- state tourist traffic, soon fell into abuse at the hands of scheming transport operators. These tourist vehicles practically 'colonised' Karnataka and like States and started operating more or less as stage carriages within the particular State, never and rarely if ever, moving out of the State. There was no thought or question of undertaking all-India or inter-state tours and out went the worthy object of sub-section (7) of Section 63 of the MV Act, 1939.
11.12. As already noticed, in B.A. Jayaram' case, in the counter affidavit filed on behalf of State of Karnataka, it was contended that the operators run their tourist buses at fixed W.P.(C)Nos.13327 & 14695/2019 160 timings from particular places like the stage carriages operated by the Karnataka State Road Transport Corporation and other private stage carriage operators. On checking, it was found that the passengers in the vehicles were not genuine tourists and the drivers or the persons in charge of the vehicles were not in a position to produce the trip sheet with list of passengers. The passengers boarded the vehicles from one point without any contract or otherwise and without they being tourists. They are regular passengers going from one place to another for purposes other than tourism. These vehicles were found catering to the needs of general travelers who can make use of the Stage Carriages operated by the Karnataka State Road Transport Corporation or other private stage carriage operators. As a result of indiscriminate misuse of the vehicles as stage carriages even though the permits were obtained under sub-section (7) of Section 63 of the MV Act for tourism, the very object of obtaining permits under sub-section (7) of Section 63 of the Act, which intended to promote tourism has been misused by these operators of the tourist buses by plying their vehicles regularly as stage carriages. Though the petitioners before the Apex Court, who are transport operators W.P.(C)Nos.13327 & 14695/2019 161 holding All-India Permits, denied that any of them was guilty of any malpractice or misuse of the permits held by them, notwithstanding that denial, the Apex Court observed as follows; "we do not have the slightest doubt that the allegations of misuse and malpractice made in the counter affidavit, filed on behalf of the Karnataka Government are generally and substantially correct".
11.13. In Ashutosh Swain's case [(1985) 2 SCC 636], in the context of sub-section (7) of Section 63 of the MV Act, 1939, the Apex Court held that, by introduction of sub- section (7) in Section 63, the concept of a permit to be granted by a State Transport Authority of a State within the limits of the quota prescribed by the Central Government which would enable the holder of the permit to operate in the whole of India, was introduced. The underlying object for creating this new class of permit was to promote tourism. If a tourist vehicle is hired by a tourist party for moving from State to State, the vehicle cannot be taken to another State from the place of commencement of journey unless a valid contract carriage permit of that State is obtained or the existing permit is countersigned. This would impede tourism causing W.P.(C)Nos.13327 & 14695/2019 162 inconvenience to the tourists. The impediment in the free flow of tourist traffic was sought to be suitably removed by this provision.
11.14. In Noorulla Khan's case [(2004) 6 SCC 194] the Apex Court held that, under sub-section (9) of Section 88, the State Transport Authority has been empowered to grant All-India Tourist Permit for the purpose of promoting tourism, notwithstanding anything contained in sub-section (1) of Section 88 and subject to the Rules to be made by the Central Government under sub-section (14) of Section 88.
11.15. In Satish N. Narayan's case [2017 ILR (Kar.) 735] the Karnataka High Court held that a permit issued under sub-section (9) of Section 88 of the MV Act, 1988 is only for those vehicles which shall be used 'solely or exclusively for transporting tourists'. Therefore, tourist vehicles cannot carry commuters. A contract carriage permit under Section 74 and tourist permit issued sub-section (8) of Section 88 of the MV Act differ with regard to the status of the passenger.
11.16. The legal principles that can be culled out from the decisions referred to supra are as follows;
(i) The provisions under sub-section (7) of Section 63 of the MV Act, 1935, introduced by the Motor W.P.(C)Nos.13327 & 14695/2019 163 Vehicles (Amendment) Act, 1969, and that under sub-section (9) of Section 88 of the MV Act, 1988 for grant of 'All-India Tourist Permits' are designed to promote all-India and inter-state tourist traffic;
(ii) A tourist vehicle covered by 'All-India Tourist Permit shall carry only genuine tourist passengers and shall not carry regular passengers/commuters going from one place to another for purposes other than tourism;
12. 'All-India Tourist Permits' - Use of tourist vehicles as stage carriages/contract carriages on inter- state routes:-
12.1. Rule 82 of the CMV Rules deals with tourist permits; Rule 83 deals with authorisation fee; Rule 84 deals with right of operation; and Rule 85 deals with additional conditions of tourist permit. As per sub-rule (1) of Rule 85, the permit holder shall cause to be prepared in respect of each trip a list in triplicate of tourist passengers to be carried in the vehicle, giving full particulars as enumerated under clauses (a) to (d) thereof. The operation of such a tourist vehicle, circular or otherwise, has to be in accordance with the provisions under sub-rules (3) and (4) of Rule 85. As per sub-rule (6) of Rule 85, such a tourist vehicle shall not be parked on any bus stand used by stage carriage and shall not operate from such bus W.P.(C)Nos.13327 & 14695/2019 164 stand. Such a tourist vehicle shall exhibit the word 'Tourist', as per the mandate of sub-rule (7) of Rule 85 and shall display the validity of the tourist permit, as per the mandate of sub-
rule (8) of Rule 85. As per sub-rule (9), the permit holder shall not operate the tourist vehicle as a stage carriage.
12.2. Similarly, as per Rule 13 of the All-India Permit for Tourist Operators Rules, 1993 a tourist vehicle covered by an All-India Tourist Permit granted under sub-section (9) of Section 88 of the MV Act, read with the provisions under the said Rules, shall carry only tourist passengers, included in the list prepared in respect of each trip. As per clause (b) of Rule 2, the 'authorisation certificate' issued to a recognised Tourist Transport Operator authorise him to operate the vehicle throughout the territory of India or in such continuous States, not being less than three in number including the State in which the permit is issued, on recognised tourist circuits, as are specified in the All India Permit for a tourist vehicle granted to him. Clause (h) of Rule 2 defines 'tourist circuit' to mean all places of tourist interest situated in a state for which package tours are prepared and sold by the recognised Tourist Transport Operator. In the quarterly return submitted under W.P.(C)Nos.13327 & 14695/2019 165 Rule 14, the Tourist Transport Operator has to state the total distance covered in the respective States and the total distance of operation and also the reasons for low or high running in any particular State or States and any other factors which caused low or high operations. Such a tourist vehicle shall exhibit the words 'All-India Tourist Permit', as per the mandate of Rule 12. As per Rule 10, an All-India Permit for Tourist Transport Operators shall be issued only in respect of vehicles with a seating capacity of not more than 39 seats, excluding the driver and the conductor.
12.3. In view of the provisions under the CMV Rules and the All-India Permit for Tourist Operators Rules, 1993 a tourist vehicle covered by All-India Tourist permit shall carry only tourist passengers. Such a vehicle cannot be used to conduct regular service between two points, either as a stage carriage or as a contract carriage, carrying one set of passengers for the onward journey and another set of passengers for the return journey.
13. Section 200 of the MV Act - Compounding of an offence punishable under Section 192A of the MV Act:-
13.1. The petitioners would contend that an offence W.P.(C)Nos.13327 & 14695/2019 166 punishable under Section 192A of the MV Act is not compoundable under Section 200 of the said Act. Moreover, compounding of an offence is conditional upon the willingness of the offender to have the same compounded.
13.2. As per sub-section (1) of Section 66 of the MV Act, no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
As per Section 84 of the MV Act, the conditions enumerated in clauses (a) to (g) thereof shall be the conditions of every permit. As per sub-section (1) of Section 192A of the MV Act, whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub- section (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to W.P.(C)Nos.13327 & 14695/2019 167 five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both. As per the proviso to sub-section (1) of Section 192A, the court may for reasons to be recorded, impose a lesser punishment.
13.3. Sub-section (1) of Section 192A, as inserted/ substituted by Section 75 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019], provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub- section (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with imprisonment for a term which may extend to six months and a fine of ten thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than six months or with fine of ten thousand rupees or with both. As per proviso to sub-section (1) of Section 192A, the Court may W.P.(C)Nos.13327 & 14695/2019 168 for reasons to be recorded, impose a lesser punishment.
13.4. Section 200 of the MV Act deals with composition of certain offences. As per sub-section (1) of Section 200, any offence whether committed before or after the commencement of this Act punishable under Section 177, Section 178, Section 179, Section 180, Section 181, Section 182, sub-section (1) or sub-section (2) of Section 183, Section 184, Section 186, Section 189, sub-section (2) of Section 190, Section 191, Section 192, Section 194, Section 196 or Section 198 may either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf. As per sub-section (2) of Section 200, where an offence has been compounded under sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence.
13.5. By G.O.(P)No.14/2010/Tran. Dated 05.03.2010 issued by the Government of Kerala, Transport (B) Department, in exercise of the powers under sub-section (1) of Section 200 of the MV Act and in supersession of the W.P.(C)Nos.13327 & 14695/2019 169 notifications dated 20.03.2002 and 22.03.2002, all officers of and above the rank of Assistant Motor Vehicles Inspectors of the Motor Vehicles Department and all officers of and above the rank of Sub Inspectors in the Traffic Branch of the Police Department and where there is no Traffic Branch, all officers of Local Police of the area of and above the rank of Circle Inspector of Police are authorised to compound the offences punishable under various provisions of the MV Act specified in column (2) of the Schedule to that Government Order, for the amounts specified in column (3) thereof.
13.6. An offence punishable under Section 192A of the MV Act, which was not compoundable under Section 200, till Section 200 of the MV Act was substituted by Section 86 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019. As per sub-section (1) of Section 200, as substituted by Section 86 of the Motor Vehicles (Amendment) Act, 2019, any offence whether committed before or after the commencement of this Act punishable under Section 177, Section 178, Section 179, Section 180, Section 181, Section 182, Sub-section (1) or sub-section (3) or sub-section (4) of Section 182A, Section 182B, sub-section (1) or sub-section (2) W.P.(C)Nos.13327 & 14695/2019 170 of Section 183, Section 184 only to the extent of use of handheld communication devices, Section 186, Section 189, sub-section (2) of Section 190, Section 192, Section 192A, Section 194, Section 194A, Section 194B, Section 194C, Section 194D, Section 194E, Section 194F, Section 196, Section 198 may either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf.
13.7. In Ratnakar Rao v. Govt. of A.P. [(1996) 5 SCC 359] the Apex Court was dealing with a case in which the petitioners therein, who are owners of goods motor vehicles covered by National/State permits, challenged the validity of G.O.(Ms.)No.54 dated 31.03.1995 issued by the Department of Transport, Andhra Pradesh enhancing the compounding fee from Rs.10/- per kg. to Rs.100/- per kg. as being violative of the MV Act, 1988 and arbitrary, being violating Article 14 of the Constitution of India. In the impugned judgment, the Division Bench of Andhra Pradesh High Court upheld the said Government Order. The Division Bench noticed that Section 200 of the Act empowers the authorised officer to compound W.P.(C)Nos.13327 & 14695/2019 171 the offences punishable under the provisions enumerated in sub-section (1) thereof. Section 194 is one of the provisions for the offence of which the officer is empowered either before or after the institution of the proceedings for prosecution, to compound such an offence for such amount as the State Government may by notification in the Official Gazette specify in this behalf. It is not mandatory that the authorised officer would always compound that offence. It is conditional upon the willingness of the accused to have the offences compounded. It may also be done before the institution of the prosecution case. In the event of the petitioner's willing to have the offence compounded, the authorised officer gets jurisdiction and authority to compound the offence and call upon the accused to pay the same. On compliance thereof, the proceedings, if already instituted, would be closed or no further proceedings shall be initiated. It is a matter of volition or willingness on the part of the accused either to accept compounding of the offence or to face the prosecution in the appropriate Court. It is not necessary that Section 200 itself should contain the details in that behalf. The Apex Court held further that, so long as the compounding fee does not exceed the fine prescribed by W.P.(C)Nos.13327 & 14695/2019 172 penal section, the same cannot be declared to be either exorbitant or irrational or bereft of guidance. Paragraphs 3 to 5 of the said decision read thus;
"3. Section 194 of the Act enacts penal sanctions for driving a vehicle in violation of Section 113 to 115 of the Act with a minimum fine of Rs.2,000/- and additional amount of Rs.1,000/- per tonne of excess load together with liability to pay charges for off loading of the excess load. Sub-section (2) thereof imposes penalty on the driver who refuses to stop and submit to do so by the authorised officer in that behalf under Section 114 or refuses to remove or causes to remove the load or part of it, prior to weighment in the form of fine to the extent of Rs.3,000/-. Section 200 of the Act empowers the authorised officer to compound the offences punishable under the provisions enumerated in sub-section (1) thereof. Section 194 is one of the provisions for the offence of which the officer is empowered either before or after the institution of the proceedings for prosecution, to compound such an offence for such amount as the State Government may by notification in the Official Gazette specify in this behalf. Under sub- section (2) thereof, after compounding the offence the accused in custody shall be discharged and the proceedings shall be dropped in respect of such an offence.
4. The contention raised before the High Court and repeated before us by Shri Rajeev Dhavan, learned senior counsel for the petitioners is that the discretion W.P.(C)Nos.13327 & 14695/2019 173 given in Section 200(1) of the Act is unguided, uncanalised and arbitrary. Until an accused is convicted under Section 194, the right to levy penalty thereunder would not arise. When discretion is given to the Court for compounding of the offence for the amount mentioned under Section 200, it cannot be stratified by specified amount. It would, therefore, be clear that the exercise of power to prescribe maximum rates for compounding the offence is illegal, arbitrary and violative of Article 14 of the Constitution. We find no force in the contention. For violation of Section 113 to 115, Section 194 accords penal sanction and on conviction for violation thereof, the Section sanctions punishment with fine as has been enumerated hereinbefore. Section would give guidance to the State Government as a delegate under the statute to specify the amount for compounding the offences enumerated under sub-section (1) of Section 200. It is not mandatory that the authorised officer would always compound that offence. It is conditional upon the willingness of the accused to have the offences compounded. It may also be done before the institution of the prosecution case. In the event of the petitioner's willing to have the offence compounded, the authorised officer gets jurisdiction and authority to compound the offence and call upon the accused to pay the same. On compliance thereof, the proceedings, if already instituted, would be closed or no further proceedings shall be initiated. It is a matter of volition or willingness on the part of the accused either to accept compounding of the offence or to face the prosecution in the W.P.(C)Nos.13327 & 14695/2019 174 appropriate Court. As regards canalisation and prescription of the amount of fine for the offences committed, Section 194, the penal and charging section prescribes the maximum outer limit within which the compounding fee would be prescribed. The discretion exercised by the delegated legislation, i.e. the executive is controlled by the specification in the Act. It is not necessary that Section 200 itself should contain the details in that behalf. So long as the compounding fee does not exceed the fine prescribed by penal section, the same cannot be declared to be either exorbitant or irrational or bereft of guidance.
5. It would, therefore, be clear that the Government as a delegate, did not exceed its power under Section 200 of the Act in prescribing the compounding fee for the offence punishable under Section 194 of the Act."
(underline supplied) 13.8. In Paramjit Bhasin v. Union of India [(2005) 12 SCC 642] the Apex Court reiterated that compounding of offence under Section 200 of the MV Act can be done either before or after the institution of the prosecution in respect of the enumerated offences.
13.9. In Punitha N. v. State of T. N. and others [AIR 2008 Madras 229] the Madras High Court was dealing with a writ petition filed by an operator of contract carriages covered by All-India permits issued by the State Transport Authority, W.P.(C)Nos.13327 & 14695/2019 175 Karnataka. Since the permits issued in favour of the petitioner cover the State of Karnataka, Tamil Nadu, Kerala and Pondicherry, the petitioner has been paying Motor Vehicle Tax to the Primary State of Karnataka as well as to the other States covered by the permit. The Government of Tamil Nadu issued Notification No. II(2)/HO/109/2000, dated 11.01.2000, which was published in the Tamil Nadu Government Gazette, dated 02.02.2000. As per the said notification, the officials of the Transport Department, not below the rank of Motor Vehicle Inspector (Non-Technical) in the check posts of the Transport Department were empowered to levy fine, on the spot, against the vehicles coming from other States, for certain offences notified therein. However, the Transport Commissioner suggested that such powers should also be vested with the officials of the Transport Department in the hinterland to check tax evasion, unauthorised entries and other cognizable offences. The Government of Tamil Nadu accepted the said suggestion of the Transport Commissioner and published G.O. (Ms.)No.1243/Home (Transport VII) Department, dated 14.12.2001, directing that all the officers of the Transport Department not below the rank of Motor Vehicle Inspectors W.P.(C)Nos.13327 & 14695/2019 176 Grade II, shall exercise the powers of compounding of offences in the places other than the check post in respect of vehicles from other States. The said Government Order was issued in exercise of the powers conferred by sub-section (1) of Section 200 of the Motor Vehicles Act. Though the original Notification, i.e., the notification dated 11.01.2000, referred to the power to levy spot fine against the vehicles coming from other States for certain offences notified therein, the notification dated 14.12.2001, issued under Section 200 of the Motor Vehicles Act referred only to compounding of offences against vehicles from other States. It specifically provides that offences punishable under the provisions specified therein may, either before or after the institution of prosecution, be compounded by such officers or such authorities as the Government may specify. In such cases, no further proceedings shall be taken against the person charged. The offences and violations covered by Section 200 of the Motor Vehicles Act relate to cognizable offences concerned with the safety of the vehicles and they did not cover alleged violations of the conditions contained in the permits. Section 200 of the Act specifically provides for compounding of offences by the person charged W.P.(C)Nos.13327 & 14695/2019 177 and it does not provide for levying of spot fine.
13.10. In Punitha's case, in the writ petition, it was alleged that the officers of the Transport Department are stopping the vehicles belonging to the petitioner alleging vague and baseless violations of the conditions contained in the permits. Further, they are collecting spot fines ranging from Rs.100/- to Rs.500/-. The petitioner contended that the Checking Officers can only issue check reports and forward them to the Primary Authority for initiating action for suspension or cancellation of permits for the alleged violations of the conditions of permits. Thereafter, necessary action can be initiated against the permit holders after giving them an opportunity to submit their explanation and by following the procedure prescribed by law. However, the Checking Officers are issuing the check reports on a daily basis alleging violations, like, carrying unaccompanied luggage, non- maintenance of trip sheets, collecting individual fares, etc. The amounts collected are always referred to as spot fine, though notification dated 14.12.2001, as well as Section 200 of the MV Act, refer to compounding of offences and they do not refer to spot fines. Since the Checking Officers are collecting the W.P.(C)Nos.13327 & 14695/2019 178 fine, the drivers of the vehicles have no option except to pay the fine under threat by such officers that the vehicles would be impounded. The petitioner relied on the decision of the Apex Court in P. Ratnakar Rao v. Govt. of A.P. [AIR 1996 SC 2523], wherein it was held that the compounding of offences is conditional upon the willingness of the accused to have the offences compounded. While the offences contemplated under Section 200 would mostly refer to the driver or the person in charge of the vehicle, the offences charged by the Checking Officers relate to permit conditions, which would affect the permit holder.
13.11. In Punitha's case, in the counter affidavit filed by the respondent State it was contended that, the Government had issued notification dated 11.01.2000, delegating the powers to Police Officials for compounding of offences in the Cities of Chennai, Coimbatore, Madurai and Thiruchirappalli and the Transport Officials in the check posts, under Section 200 of the Motor Vehicles Act. The nature of offence and the revised amount of compounding fee were also notified in the said Government Order. The officials of the Transport Department, not below the rank of a Motor Vehicle W.P.(C)Nos.13327 & 14695/2019 179 Inspector (Non-Technical) in the check posts of the Transport Department are empowered, in respect of the vehicles coming from the other States, to collect compounding fees for the offences notified in the Government notification dated 11.01.2000 and also to enhance the amount of compounding fee/spot fine on the vehicles entering into the States of Tamil Nadu from other States. In order to curtail tax evasion and misuse of permits of the vehicles, the Government had amended the delegation of powers by G.O.(Ms.)No.1243/Home (Transport VII) dated 14.12.2001, based on the suggestion made by the Transport Commissioner, whereby all the officers of the Transport Department, not below the rank of Motor Vehicle Inspectors (Grade II), have been empowered to collect spot fines from the transport vehicles of other States, even in places other than the check posts. Section 200 of the Motor Vehicles Act provides for the levy of compounding fee in respect of offences punishable under Sections 177, 178, 179, 180, 181, 182(1), 182(2), 183(1), 183(2), 184, 186, 190(2), 192, 194, 196 and 198 of the said Act. Though the offences relating to the said Sections may seem to relate to permit holders; in fact, the drivers or the person in charge of the W.P.(C)Nos.13327 & 14695/2019 180 vehicles are responsible for the said offences. Since the drivers and the person in charge of the vehicles are mostly based in the State of Karnataka, it is difficult to summon them to enquire and to prosecute, if found necessary. Therefore, the Government notification dated 14.12.2001 under Section 200 of the Motor Vehicles Act had been issued and the compounding fees mentioned in the notification are being collected by the officials of the Transport Department. In the counter affidavit filed by the respondent State, it was contended further that, the vehicles belonging to the writ petitioner are plying in the State of Tamil Nadu by virtue of the permit issued by the State Transport Authority, Karnataka, under sub-section (9) of Section 88 of the Motor Vehicles Act. The Inspecting Officers of the State of Tamil Nadu are charging the vehicles of the petitioner when the offences are found to have been committed under the provisions of the Motor Vehicles Act. Only the offences committed relating to the drivers or the person in charge of the vehicles are compounded under Section 200 of the Act. Under Section 207 of the Act, the officers authorised by the State Government have the authority and power to seize the vehicles contravening any of W.P.(C)Nos.13327 & 14695/2019 181 the conditions contained in the permits. However, since such implementation of the provision may cause hindrance to the use of the vehicles by their owners, the Government had decided to provide the facility of paying spot fine. Therefore, it cannot be said that the levying of spot fines would cause irreparable loss and hardship to the owners of the vehicles.
13.12. In Punitha's case, after considering the rival contentions, the learned Judge of the Madras High Court held that the petitioner has not shown sufficient cause or reason to grant the reliefs prayed for in the writ petition. Government Order dated 14.12.2001 has been issued only with the intention of alleviating the hardship that the drivers and the person in charge of their vehicles may face in the course of the implementation of the various sections of the MV Act. Compounding of offence and levying of spot fines had been introduced in order to avoid more serious consequences, that may arise as a result of the offences committed by the drivers and the persons in charge of the vehicles. If a power vested in an authority or officer is misused, it is for the aggrieved party to bring it to the knowledge of the higher authorities for initiating necessary action against such misuse of powers and W.P.(C)Nos.13327 & 14695/2019 182 for initiating remedial action. It cannot be a general charge or a complaint that the powers vested in the concerned officials are being misused. Based on such charge or complaint, it cannot be held that the power or the source of such power is ultra vires and unsustainable in the eye of law. Paragraphs 9 to 12 of the judgment read thus;
"9. The learned counsel appearing for the petitioner had submitted that the implementation of G.O. (Ms.)No.1243, Home (Transport VII) Department, dated 14.12.2001, by the respondents and their subordinates result in levying of spot fines and collection of compounding fees causing hardship and irreparable loss to the vehicle owners who are operating the vehicles in the State of Tamil Nadu. The powers said to be vested in the respondents and their subordinates are very often misused for illegally collecting various amounts from the drivers and the persons incharge of the vehicles. Even non compoundable offences or violations of permits, the petitioner is spot fined by the respondents or their subordinates, both at the check posts and other interior places of the State of Tamil Nadu. If such collections or spot fines are made and they are marked against the permit holders, it would result in the denial of renewal of permits to such permit holders. The drivers or the persons incharge of the vehicles pay the spot fines by compounding the alleged offences, even though in reality such offences may not be committed by them as they are under compulsion to do so in order to avoid W.P.(C)Nos.13327 & 14695/2019 183 impounding of the vehicles, both at the check posts and in the interior places of the State of Tamil Nadu. Thus, the Government Order in G.O.(Ms.)No.1243, Home (Transport VII) Department, dated 14.12.2001, and its implementation result in undue hardship and loss to the petitioner.
10. Per contra, the learned counsel appearing for the respondents had submitted that the Government Order in G.O.(Ms.)No. 1243, Home (Transport VII) Department, dated 14.12.2001, has been issued only to alleviate the hardship that may be faced by the owners of the vehicles. If the vehicles are charged for committing various offences, it would also prevent impounding of the vehicles for committing such offences. The compounding of offences and levying of spot fines have been provided for only in the interest of the petitioner and therefore, it is incorrect on the part of the petitioner to allege that the powers vested in the respondents and their subordinates are being misused. If it is found that a particular officer or his subordinates have misused their authority, it is for the concerned vehicle owner to make a specific complaint against such misuse of power. If such a complaint is made, the appropriate authority would initiate necessary action against such erring officer. Therefore, a general allegation by the petitioner that the powers vested in the respondents and their subordinates, who are responsible officers of the Government, by G.O. (Ms.)No.1243, Home (Transport VII) Department, dated 14.12.2001, are likely to be misused cannot be sustained in the eye of law.W.P.(C)Nos.13327 & 14695/2019 184
11. The learned counsel appearing for the respondents had submitted that necessary instructions would be issued to the Officers concerned to implement the Government order in question in its true spirit in which it is intended to apply. Any misuse of powers vested in the officers by the said Government Order would be discouraged by the authorities concerned and necessary action would be taken against such officers, if such misuse is brought to the notice of the authorities.
12. In view of the submissions made by the learned counsel appearing for the parties concerned, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs prayed for in the writ petition. The Government Order in G.O.(Ms.)No.1243, Home (Transport VII) Department, dated 14.12.2001, has been issued only with the intention of alleviating the hardship that the drivers and the persons incharge of their vehicles may face in the course of the implementation of the various sections of the Motor Vehicles Act, 1988. Compounding of offence and levying of spot fines had been introduced in order to avoid more serious consequences, that may arise as a result of the offences committed by the drivers and the persons incharge of the vehicles. The contentions raised on behalf of the petitioner that the powers vested in the respondents and their subordinates could be misused cannot be countenanced. If a power vested in an authority or officer is misused, it is for the aggrieved party to bring it to the knowledge of the higher authorities for initiating necessary action against such misuse of powers and for initiating remedial action. It W.P.(C)Nos.13327 & 14695/2019 185 cannot be a general charge or a complaint that the powers vested in the concerned officials are being misused. Based on such charge or complaint, it cannot be held that the powers or the source of such powers is ultra vires and unsustainable in the eye of law. In such view of the matter, the writ petition stands dismissed. Consequently, connected W.P. M.P. No. 20183 of 2004 is also dismissed. No costs." (underline supplied) 13.13. Section 200 of the MV Act empowers the authorised officer to compound the offences punishable under the provisions enumerated in sub-section (1) thereof. The officer is empowered either before or after the institution of the proceedings for prosecution, to compound such an offence for such amount as the State Government may by notification in the Official Gazette specify in this behalf. It is conditional upon the willingness of the offender to have the offences compounded. It may also be done before the institution of the prosecution case. In the event of the offender willing to have the offence compounded, the authorised officer gets jurisdiction and authority to compound the offence and call upon the offender to pay the same. On compliance thereof, the proceedings, if already instituted, would be closed or no further proceedings shall be initiated. It is a matter of volition or W.P.(C)Nos.13327 & 14695/2019 186 willingness on the part of the offender either to accept compounding of the offence or to face the prosecution in the appropriate court.
13.14. As already noticed, an offence punishable under Section 192A of the MV Act was not compoundable till Section 200 of the said Act was substituted by Section 86 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019. In terms of sub-section (1) of Section 200, the State Government has to notify the officers or authorities authorised to compound the offence punishable under Section 192A and also the compounding fee. Moreover, compounding of an offence is conditional upon the willingness of the offender to have the same compounded either before or after institution of the proceedings for prosecution. Therefore, the check reports in respect of the vehicles owned by the petitioners, referred to in the respective writ petitions, which have already closed on payment of compounding fee, for an offence punishable under Section 192A of the MV Act, have to be re-opened and the fee so collected shall be returned. Further proceedings in those check reports will have to be taken by the appropriate authority, in accordance with law, with notice to the respective W.P.(C)Nos.13327 & 14695/2019 187 offenders, and after affording them an opportunity of being heard, taking note of the law laid down in this decision.
14. Section 86 of the MV Act - Suspension of All- India Tourist Permit issued under sub-section (9) of Section 88 of the MV Act:-
14.1. Petitioners would contend that the power to suspend an All-India Tourist Permit issued under sub-section (9) of Section 88 of the MV Act by any Transport Authority other than the Transport Authority which granted the permit can be exercised only when power in this behalf has been delegated under sub-section (5) of Section 68 of the MV Act.
14.2. Section 86 of the MV Act deals with cancellation and suspension of permits. As per sub-section (1) of Section 86, the Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit on the grounds enumerated in clauses (a) to (f) of sub-section (1). Under clause (a), the Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit on the breach of any condition specified in Section 84 or of any condition contained in the permit, and under clause (b), if the holder of the permit uses or causes or W.P.(C)Nos.13327 & 14695/2019 188 allows a vehicle to be used in any manner not authorised by the permit. Sub-section (7) of Section 86 deals with tourist permit granted under sub-section (9) of Section 88 of the MV Act. Sub-section (7) of Section 86 provides that, in relation to a permit referred to in sub-section (9) of Section 88, the powers exercisable under sub-section (1) (other than the power to cancel a permit) by the Transport Authority which granted the permit, may be exercised by any Transport Authority and any authority or persons to whom power in this behalf has been delegated under sub-section (5) of Section 68, as if the said permit was a permit granted by any such authority or persons.
14.3. As per sub-section (5) of Section 68 of the MV Act, the State Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under Section 96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitations and conditions, as may be prescribed by the said rules. The delegation of power contemplated under sub-section (5) of Section 68 is delegation of such powers and functions of the State Transport Authority and any Regional Transport W.P.(C)Nos.13327 & 14695/2019 189 Authority to such authority or person subject to such restrictions, limitations and conditions as may be prescribed in the rules made in this behalf under Section 96 of the MV Act. Therefore, a rule made under Section 96 of the MV Act is required only for delegation of the powers of the State Transport Authority and any Regional Transport Authority and no such rule is required for any Transport Authority exercising the powers exercisable under sub-section (1) of Section 86 (other than the power to cancel a permit) by the Transport Authority which granted the permit, in relation to a permit referred to in sub-section (9) of Section 88.
15. Section 206 of the MV Act - Power to impound documents - Power of Assistant Motor Vehicle Inspectors:-
15.1. The petitioners would contend that the power under Section 206 of the MV Act to impound documents can be exercised only by police officers and not by the Assistant Motor Vehicle Inspectors in the Motor Vehicles Department.
15.2. As per sub-section (1) of Section 206, any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that any W.P.(C)Nos.13327 & 14695/2019 190 identification mark carried on a motor vehicle or any licence, permit, certificate of registration, certificate of insurance or other document produced to him by the driver or person in charge of a motor vehicle is a false document within the meaning of Section 464 of the Indian Penal Code, 1860 seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document. As per sub-section (2) of Section 206, any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it to the court taking cognizance of the offence and the said court shall on the first appearance of such driver before it, return the licence to him in exchange for the temporary acknowledgment given under sub-section (3).
15.3. Sub-section (4) of Section 206 of the MV Act, inserted by Section 88 of the of the Motor Vehicles (Amendment) Act, 2019, a police officer or other person authorised in this behalf by the State Government shall, if he W.P.(C)Nos.13327 & 14695/2019 191 has reason to believe that the driver of a motor vehicle has committed an offence under any of Section 183, 184, 185, 189, 190, 194C, 194D, or 194E, seize the driving licence held by such driver and forward it to the licensing authority for disqualification or revocation proceedings under Section 19. As per the proviso to sub-section (4), the person seizing the licence shall give to the person surrendering the licence a temporary acknowledgment therefor, but such acknowledgment shall not authorise the holder to drive until the licence has been returned to him.
15.4. As per sub-section (1) of Section 213 of the MV Act, the State Government may, for the purpose of carrying into effect the provisions of this Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it think fit. As per sub-section (3) of Section 213, the State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate, the duties to be performed by them, the powers (including the powers W.P.(C)Nos.13327 & 14695/2019 192 exercisable by police officers under this Act) to be exercised by them, and the conditions governing the exercise of such powers. As per sub-section (5) of Section 213, in addition to the powers that may be conferred on any officer of the Motor Vehicles Department under sub-section (3), such officer as may be empowered by the State Government in this behalf shall also have the powers enumerated in clauses (a) and (f) thereof.
15.5. As per Rule 228 of the KMV Rules, permit shall be produced on demand at any reasonable time by the Secretaries of the State or Regional Transport Authorities, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector or Police Officers not below the rank of Sub Inspector. As per the proviso to Rule 228, if a permit is not at the time in possession of the person to whom demand is made, it shall be sufficient compliance with this rule if such person produces it within ten days at any police station in the State which he specifies to the officer. As per Rule 229, which deals with inspecting authority for permit, Magistrates, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector and Police W.P.(C)Nos.13327 & 14695/2019 193 Officers in uniform not below the rank of Sub Inspector may mount any transport vehicle for the purpose of inspecting the permit.
15.6. Rule 231 of the KMV Rules deals with inspection of public service vehicles. As per sub-rule (1) of Rule 231, any of the persons enumerated in clauses (a) to (e) of the said sub-
rule may, at any time when a public service vehicle is in a public place call upon the driver of the vehicle to stop the vehicle and keep it at rest for such time as may be necessary to enable him to make reasonable examination of the number of passengers and other contents of the vehicle so as to satisfy himself that the provisions of the Act and of these rules and the provisions and conditions of the permit in respect of the vehicle are being complied with. As per clause (a) of sub-rule (1) of Rule 231, any officer of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector is authorised to exercise the powers under the said Rule.
15.7. Rule 348 of the KMV Rules deals with production of certificate of registration and fitness on demand. As per Rule 348, Magistrates, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector and Police W.P.(C)Nos.13327 & 14695/2019 194 Officers in uniform not below the rank of Sub Inspector are authorised to demand the production of the certificate of registration and the certificate of insurance of any vehicle and where the vehicle is a transport vehicle, also the certificate of fitness and the permit. Rule 351 of the KMV Rules deals with officers empowered to seize vehicles and documents. As per sub-rule (1) of Rule 351, Magistrates, Police officers in uniform not below the rank of Sub Inspector, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicle Inspector are authorised to; (a) seize any identification mark carried on, or any document produced by the driver or person in charge of a motor vehicle under the provisions of Section 206 of the Act; and (b) seize, detain and arrange for the temporary safe custody of motor vehicle under the provisions of Section 207 of the Act.
15.8. The provisions under the MV Act and the KMV Rules referred to above would make it explicitly clear that the power under Section 206 of the Act to impound document can be exercised by officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicle Inspector.
16. Section 207 of the MV Act - Power to detain W.P.(C)Nos.13327 & 14695/2019 195 vehicles used without certificate of registration, permit, etc. - Power of Assistant Motor Vehicle Inspectors:-
16.1. The petitioners would contend that the power under Section 207 of the MV Act to detain vehicles used without certificate of registration, permit, etc. can be exercised only by police officers and not by the Assistant Motor Vehicle Inspectors in the Motor Vehicles Department.
16.2. As per sub-section (1) of Section 207 of the MV Act, any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle.
16.3. As per the proviso to sub-section (1) of Section 207 of the MV Act, where any such officer or person has reason to W.P.(C)Nos.13327 & 14695/2019 196 believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.
As per sub-section (2) of Section 207, where a motor vehicle has been seized and detained under sub-section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.
16.4. In Nirmala Jagdishchandra Kabra v. Transport Commissioner [(1997) 9 SCC 227] the Apex Court was dealing with a case in which the Motor Vehicle Inspector had imposed penalty of Rs.1000/- for violation of the conditions of the contract carriage permit. It was found that the vehicle was being used as stage carriage in violation of the breach of the conditions of the permit inasmuch as petitioner was collecting W.P.(C)Nos.13327 & 14695/2019 197 individuals fares at the rate of Rs.1.60 per passenger and was not using the vehicle as a tourist vehicle hired to one group party. The petitioner filed writ petition before Gujarat High Court seeking the relief as under;
"To allow this petition and to issue appropriate writ, direction and order holding and declaring that the respondent authorities have no legal right or power or authority to either seize or detain the petitioner's vehicles shown at Annexure A to this petition in purported exercise of power under Section 207 of the Motor Vehicles Act, 1988 solely on the allegation of collection of individual fare from the passengers."
The learned Single Judge and the Division Bench refused to grant the relief in the face of sub-section (1) of Section 207 of the Motor Vehicles Act, read with proviso thereto. After quoting the provisions under Section 207 of the Act, the Apex Court held that there is a power for compounding the offence provided in Section 206 [sic: Section 200] of the Act. In the light of sub-section (1) of Section 207, if the officer authorised in that behalf is of the opinion that the vehicle has been or is being used in contravention of any of the aforesaid provisions of the Act (referred to in Section 207) or conditions of the permit relating to the route on which or the area in which or W.P.(C)Nos.13327 & 14695/2019 198 the purpose for which the vehicle is used, he may seize and detain the vehicle or compound the offence. The statutory power given to the authorised officer under Section 207 is to ensure compliance of the provisions of the Act. Therefore, the mandamus sought for cannot be issued, as referred to earlier. Paragraphs 2 and 3 of the said decision read thus;
"2. The learned single Judge and the Division Bench refused to grant the relief in the face of Section 207(1) read with proviso thereto, of the Motor Vehicles Act, 1988 (for short, the "Act"). Section 207 of the Act postulates the power to detain vehicle used without certificate of registration permit, etc. Sub-section (1) provides thus :
"Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions to Section 3 or Section 4 or Section 39 or without the permit required by sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle."
The proviso postulates thus:
"provided that where any such officer or person W.P.(C)Nos.13327 & 14695/2019 199 has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof."
3. There is a power for compounding the offence provided in Section 206 [sic: Section 200] of the Act. In the light of sub-section (1) of Section 207, if the officer authorised in that behalf is of the opinion that the vehicle has been or is being used in contravention of any of the aforesaid provisions of the Act or conditions of the permit relating to the route on which or the area in which or the purpose for which the vehicle is used, he may seize and detain the vehicle or compound the offence. The statutory power given to the authorised officer under Section 207 is to ensure compliance of the provisions of the Act. Therefore, the mandamus sought for cannot be issued, as referred to earlier."
(underline supplied) 16.5. As already noticed, as per sub-rule (1) of Rule 351, Magistrates, Police officers in uniform not below the rank of Sub Inspector, officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicle Inspector are authorised to; (a) seize any identification mark carried on, or any document produced by the driver or person in charge of a motor vehicle under the provisions of Section 206 of the Act; W.P.(C)Nos.13327 & 14695/2019 200 and (b) seize, detain and arrange for the temporary safe custody of motor vehicle under the provisions of Section 207 of the Act.
16.6. The provisions under the MV Act and the KMV Rules referred to above would make it explicitly clear that the power under Section 207 of the Act to detain vehicles used without certificate of registration, permit, etc. can be exercised by officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicle Inspector.
17. Applicability of Rules framed under Sections 95 and 96 of the MV Act to All-India Tourist Permit:-
17.1. The petitioners would contend that, as held by the Apex Court in Noorulla Khan's case [(2004) 6 SCC 194] the Rules framed by the Central Government under sub-section (14) of Section 88 of the MV Act alone would be applicable to vehicles covered by All-India Tourist permits and not the rules framed by the State Government under Sections 95 and 96 of the MV Act.
17.2. As per sub-section (9) of Section 88 of the MV Act, notwithstanding anything contained in sub-section (1), but subject to any rules that may be made by the Central W.P.(C)Nos.13327 & 14695/2019 201 Government under sub-section (14), any State Transport Authority may, for the purpose of promoting tourism, grant permits in respect of tourist vehicles valid for the whole of India, or in such contiguous States not being less than three in number including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application. As per clause (a) of sub-section (14) of Section 88 of the MV Act, the Central Government may make rules for carrying out the provisions of this section. As per clause (b) of sub-section (14), in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated sub- clauses (i) to (v) thereof. Sub-clause (i) deals with the authorisation fee payable for the issue of a permit referred to in sub-sections (9) and (12); sub-clause (iii) deals with the distinguishing particulars or marks to be carried or exhibited in or on the motor vehicle; sub-clause (iv) deals with the colour or colours in which the motor vehicle is to be painted; etc. 17.3. In Noorulla Khan's case [(2004) 6 SCC 194], after holding clause (c) of sub-rule (1) of Rule 297A and clause
(f) of sub-rule (6) of Rule 297A of the Andhra Pradesh Motor W.P.(C)Nos.13327 & 14695/2019 202 Vehicles Rules to be intra vires of the Motor Vehicles Act, the Apex Court dealt with the challenge made against the finding of the High Court that the rules framed by the Central Government under sub-section (14) of Section 88 of the Motor Vehicles Act alone would be applicable to All-India Tourist Permit and not the Rules framed by the State Government. The Apex Court held that under sub-section (9) of Section 88, the State Transport Authority has been empowered to grant All- India Tourist Permit for the purpose of promoting tourism, notwithstanding anything contained in sub-section (1) of Section 88 and subject to the Rules to be made by the Central Government under sub-section (14) of Section 88. From the conjoint reading of sub-sections (9), (11) and (14) of Section 88 of the Motor Vehicles Act, it is abundantly clear that it is the Central Government alone which has been authorised to frame the Rules as well as to prescribe the conditions for the purposes of all-India tourist vehicles. The power to make rules under Sections 95 and 96 would not include the power to frame rules applicable to All-India Tourist Permit which is exclusively vested in the Central Government. The power to frame rules and prescribe conditions for the All-India Tourist W.P.(C)Nos.13327 & 14695/2019 203 Permit is exclusively vested in the Central Government and the High Court was right in holding that the State Government would have no jurisdiction to either frame the Rules or prescribe conditions for All-India Tourist Permits.
17.4. As per clause (b) of sub-section (14) of Section 88 of the MV Act, the rules made by the Central Government may provide for all or any of the matters enumerated sub-clauses
(i) to (v) thereof. Therefore, in respect of matters the matters enumerated in sub-clauses (i) to (v) of clause (b) of sub- section (14) of Section 88 of the MV Act, the power to frame rules and prescribe conditions for All-India Tourist Permit is exclusively vested in the Central Government and the State Government would have no jurisdiction to either frame the Rules or prescribe conditions for All-India Tourist Permits. The law laid down by the Apex Court in Noorulla Khan's case was in the context of clause (c) of sub-rule (1) of Rule 297A and clause (f) of sub-rule (6) of Rule 297A of the Andra Pradesh Motor Vehicles Rules (extracted hereinbefore at Para.10), whereby certain further conditions were prescribed in addition to the permit conditions prescribed in Section 74 of the MV Act. Section 68 of the MV Act authorises the State Government W.P.(C)Nos.13327 & 14695/2019 204 to constitute Transport Authorities. Sub-section (5) of Section 68 deals with delegation of powers of the State Transport Authority and Regional Transport Authority in terms of the Rules made under Section 96 of the MV Act. Any rule framed by the State Government in this regard, does not prescribe any conditions of the All-India Tourist Permits. Moreover, as per sub-section (3) of Section 213 of the MV Act, the State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions, the duties to be performed by them, the powers (including the powers exercisable by police officers under this Act) to be exercised by them, the conditions governing the exercise of such powers, etc. The Rules framed by the State Government in this regard are applicable to tourist vehicles covered by All- India Tourist Permit.
18. Inspection of vehicles covered by All-India Tourist Permit by the officials of the Motor Vehicles Department in State of Kerala:-
18.1. As already noticed hereinbefore, the officers of the Motor Vehicles Department not below the rank of Motor Vehicle Inspector have the power to impound documents under W.P.(C)Nos.13327 & 14695/2019 205 Section 206 of the MV Act and also to detain vehicles used without certificate of registration, permit, etc. under Section 207 of the said Act, in view of the provisions under Rules 228, 229, 231, 348, 351, etc. of the KMV Rules, which are made in exercise of the rule making power of the State Government under sub-section (3) of Section 213 of the MV Act. As per the provisions under sub-section (1) of Section 192A of the MV Act, whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub-section (1) of Section 66 or in contravention of any conditions of permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be liable to be punished as provided in sub-section (1).
When any contravention of the conditions of permit relating to the purpose for which the vehicle may be used is noticed, it is for the officers authorised in this regard, including the officers of the Motor Vehicles Department not below the rank of Assistant Motor Vehicle Inspector to inspect the vehicle and collect necessary materials to initiate prosecution against the offender. As per sub-section (1) of Section 231 of the KMV Rules, the authorised officer is entitled to call upon the driver W.P.(C)Nos.13327 & 14695/2019 206 of a public service vehicle to stop the vehicle and keep it at rest for such time as may be necessary to enable him to make reasonable examination of the number of passengers and other contents of the vehicle so as to satisfy himself the provisions of the MV Act and the Rules made thereunder and also the provisions and conditions of the permit in respect of that vehicle are being complied with.
18.2. In Ajithkumar v. Director General of Police [2003 (1) KLT 671], this Court noticed direction No.17/2002 dated 17.10.2002 issued by the Director General of Police for safeguarding the convenience and interest of the travelling public as well as the operators at the time of inspection of public service vehicles. The Transport Commissioner, Kerala, has also issued Circular No.8/2010 dated 30.09.2010 in this regard. Therefore, the officers of the Motor Vehicles Department shall ensure that the inspection of public service vehicles, including vehicles covered by All-India Tourist Permits are conducted causing least inconvenience to the travelling public and also the operators.
19. Along with I.A.No.1 of 2019 in W.P.(C) No.14695 of 2019, Ext.P45 check report dated 15.09.2019 issued by the W.P.(C)Nos.13327 & 14695/2019 207 Motor Vehicle Inspector, Motor Vehicle Check Post, Thalappadi is placed on record, which is in respect of vehicle bearing registration No.KA-01/AF-5542. The averments in the affidavit accompanying to that interlocutory application would show that the said vehicle has already been issued with 13 check reports alleging operation in violation of the conditions of permit. It is for the petitioner in W.P.(C) No.14695 of 2019 to move an application (if not already moved) before the competent authority under sub-section (2) of Section 207 of the MV Act together with relevant documents, for release of the said vehicle, in which event the competent authority shall order release of that vehicle, subject such conditions as that authority may deem fit to impose, as expeditiously as possible, at any rate, within one week from the date of receipt of a certified copy of this judgment.
20. Alleging stage carriage operation in violation of the conditions of permit, various check reports have already been issued in respect of the vehicles owned by the petitioner in the respective writ petitions, which are covered by All-India Tourist Permits. The question as to whether such vehicles were operated in violation of the conditions of permit is a disputed W.P.(C)Nos.13327 & 14695/2019 208 question of fact, which has to be ascertained by the fact finding authority. It is for the petitioners to submit (if not already submitted) objections/explanations to the respective check reports, within two weeks from the date of receipt of a certified copy of this judgment and thereafter the competent authority shall consider those objections/explanations and take a decision as to the further course to be taken in the matter. During that exercise the compounding fee already paid in respect of check reports relating to offence punishable under Section 192A of the MV Act shall be refunded to the respective parties, after reopening all those check reports, and further proceedings in those check reports shall be initiated against the respective offenders, in accordance with law.
21. As already noticed, the officials in the Motor Vehicles Department not below the rank of Assistant Motor Vehicle Inspector have ample power to conduct inspection of the vehicles which are covered by All-India Tourist Permits. In such circumstances, such officers cannot be interdicted from exercising their statutory powers, by the issuance of a writ of mandamus; as no mandamus can be issued restraining a statutory authority from discharging its function under the W.P.(C)Nos.13327 & 14695/2019 209 Statute. The reliefs sought for in this regard in the respective writ petitions are declined; however it is made clear that the officers of the Motor Vehicles Department shall ensure that the inspection of public service vehicles, including the vehicles covered by All-India Tourist Permits are conducted causing least inconvenience to the travelling public and also the operators.
In the result, the writ petitions are disposed of by directing the appropriate authority to take further proceedings in the check reports issued in respect of the vehicles in question, taking note of the directions contained hereinbefore and also the law laid down as above. The competent authority shall consider the request of the petitioner in W.P.(C)No.14695 of 2019 for release of vehicle, as directed hereinbefore at Para.19.
Sd/-
ANIL K. NARENDRAN JUDGE yd W.P.(C)Nos.13327 & 14695/2019 210 APPENDIX IN WPC 13327/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF PERMIT HELD BY THE PETITIONER IN RESPECT OF KA-59/1693 VALID FROM 22-04-2019 TO 21-04-2024 EXHIBIT P2 TRUE COPY OF AUTHORISATION ISSUED IN RESPECT OF KA-59-1693 VALID FROM 22-04-2019 TO 21-04-2020.
EXHIBIT P3 TRUE COPY OF CHECK REPORT DATED 03-05-2019 EXHIBIT P4(a) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-59/1693 EXHIBIT P4(b) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-01/AG 5295 EXHIBIT P4(c) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-01/AG 9253 EXHIBIT P4(d) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-59/ 1696 EXHIBIT P4(e) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-59/1697 EXHIBIT P4(f) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-01/AG 5296 EXHIBIT P4(g) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-51/C 9156 EXHIBIT P4(h) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-51/C 9165 EXHIBIT P4(I) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-59/1692 EXHIBIT P(j) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-59/1691 EXHIBIT P4(k) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-01/AG 9257 Contd....W.P.(C)Nos.13327 & 14695/2019 211
EXHIBIT P(l) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-01/AH 8226 EXHIBIT P4(m) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-01/AH 8229 EXHIBIT P4(n) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-59/1695 EXHIBIT P4(o) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF KA-59/1689 RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE W.P.(C)Nos.13327 & 14695/2019 212 APPENDIX IN WPC 14695/2019 PETITIONER'S EXTS:
EXHIBIT P1 TRUE COPY OF THE PERMIT FROM 11.5.2016 TO 10.5.2021 ISSUED TO VEHICLE KA-01-AF-5540 BY THE SECRETARY TO PRIMARY AUTHORITY NAMELY KARNATAKA STATE TRANSPORT AUTHORITY EXHIBIT P2 TRUE COPY OF THE PERMIT FROM 11.5.2016 TO 10.5.2021 ISSUED WITH TOURIST BUS KA-01-
5542
EXHIBIT P3 THE COPY OF THE PERMIT FROM 20.5.2019 TO
19.5.2021 WITH RESPECT OF THE TOURIST BUS
KA-01-AF-5824
EXHIBIT P4 TRUE COPY OF THE CHECK REPORT
DTD.24.4.2019 ISSUED TO VEHICLE KA-01-AF-5824
EXHIBIT P5 TRUE COPY OF THE CHECK REPORT
DTD.24.4.2019 ISSUED OT VEHICLE KA-01-AF
-5542 BY 3RD RESPONDENT AND TYPED COPY OF
EXT.P5
EXHIBIT P6 TRUE COPY OF THE CHEKC REPORT
DTD.25.4.2019 ISSUED TO VEHILCE KA-01-AF-
5540 AND TYPED COPY OF EXT.P6 EXHIBIT P7 TRUE COPY OF THE CHECK REPORT DTD.26.4.2019 ISSUED OT VEHICLE NO.KA-01-
AF-5542 AND TYPED COPY OF EXT.P7 EXHIBIT P8 TRUE COPY OF THE CHECK REPORT DTD.26.4.2019 ISSUED TO VEHICLE NO.KA-01- AF-5824 EXHIBIT P9 TRUE COPY OF THE CHECK REPORT ISSUED TO VEHICLE KA-01-AF-5540 DATED 27.4.2019 EXHIBIT P10 TRUE COPIES OF CHECK REPORT DTD.28.4.2019 ISSUED TO VEHICLE NO.KA-01-AF-5540 EXHIBIT P11 TRUE COPY OF THE CHECK REPORT DTD.29.4.2019 ISSUED TO VEHICLE NO.KA-01-
AF-5540
W.P.(C)Nos.13327 & 14695/2019 213
EXHIBIT P12 TRUE COPY OF THE CHECK REPORT
DTD.29.4.2019 ISSUED TO VEHICLE NO.KA-01- AF-5542 EXHIBIT P13 TRUE COPY OF THE CHECK REPORT DTD 29.4.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5824EXHIBIT P14 TRUE COPY OF THE CHECK REPORT WITH THE ENDORSEMENT OF IMPOUNDING DT.30.04.2019 ISSUED TO VEHICLE NO.KA-01-AF-5540 EXHIBIT P15 TRUE COPY OF THE CHECK REPORT DTD 1.5.2019 ISSUED TO VEHCILE NO.KA-01-AF-5542 EXHIBIT P16 TRUE COPY OF THE CHECK REPORT DTD 1.5.2019 ISSUED TO VEHICLE NO.KA-01-AF 5540 EXHIBIT P17 TRUE COPY OF THE CHECK REPORTS DTD 2.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5540EXHIBIT P18 TRUE COPY OF THE CHECK REPORTS DTD 2.5.2019 ISSUED TO VEHICLE NO KA -01-AF-
5542EXHIBIT P19 TRUE COPY OF THE CHECK REPORT DTD.4.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-5542 EXHIBIT P20 TRUE COPY OF THE CHECK REPORT DATED 5.5.2019 ISSUED OT VEHICLE NO.KA-01-AF-
5542EXHIBIT P21 TRUE COPY OF THE CHECK REPORT DATED 5.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5540EXHIBIT P22 TRUE COPY OF THE CHECK REPORT DATED 6.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5540EXHIBIT P23 TRUE COPY OF THE CHECK REPORT DATED 6.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5542EXHIBIT P24 TRUE COPY OF THE CHECK REPORT DATED 7.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5540W.P.(C)Nos.13327 & 14695/2019 214 EXHIBIT P25 TRUE COPY OF THE CHECK REPORT DTD.8.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-5540 EXHIBIT P26 TRUE COPY OF THE REPORT DTD.8.5.2019 ISSUED TO VEHICLE NO KA-01-AF-5542 EXHIBIT P27 TRUE COPY OF THE CHECK REPORTS DTD 09.5.2019 ISSUED TO VEHICLE NOS.KA-01 AF-
5540EXHIBIT P28 TRUE COPY OF THE CHECK REPORT DTD 09.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5542
EXHIBIT P29 TRUE COPY OF THE CHECK REPORT DTD.10.5.2019 ISSUED TO VEHICLE NO.KA-01-
AF-5540
EXHIBIT P30 TRUE COPY OF THE CHECK REPORT DTD
10.5.2019 ISSUED TO VEHICLE NO.KA-01-AF
5542
EXHIBIT P31 TRUE COPY OF THE CHECK REPORT
DTD.11.5.2019 ISSUED TO VEHICLE NO.KA-01-
AF-5540
EXHIBIT P32 TRUE COPY OF THE CHECK REPORT
DTD.12.05.2019 ISSUED TO VEHICLE NO.KA-01- AF-5540 EXHIBIT P33 TRUE COPY OF THE CHECK REPORT DATED 12.05.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5542EXHIBIT P34 TRUE COPY OF THE CHECK REPORT DATED 12.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5542EXHIBIT P35 TRUE COPY OF THE REPLY DATED 15.5.2019 GIVEN TOT HE CHECK REPORT DTD 1.5.2019 EXHIBIT P36 TRUE COPY OF THE CHARGE SHEET DATED 1.5.2019 ISSUED TO VEHICLE NO.KA-01-AF-
5542EXHIBIT P37 TRUE COPY OF THE REPLY FOR THE CHECK REPORT DTD 2.5.2019 REPLY GIVEN ON 15.5.2019 W.P.(C)Nos.13327 & 14695/2019 215 EXHIBIT P37(A) TRUE COPY OF THE SHOW CAUSE NOTICE DTD 2.5.2019 TO VEHICLE NO.KA-01-AF-5540 EXHIBIT P38 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, STA, TRIVANDRUM ON 15.05-2019 EXHIBIT P39 TRUE COPY OF THE CERTAIN RECEIPTS DTD 22.4.2019, 25.4.2019, 2.5.2019 AND 6.5.2019 FOR REMITTANCE FOR THE COMPOUNDING FEE OF 5,000/-
EXHIBIT P40 TRUE COPY OF THE GAZETTEE NOTIFICATION G.O.(P)NO.14/2010/TRAN DTD 2.3.2010 EXHIBIT P41 TRUE COPY OF THE CERTIFICATE ISSUED BY MINISTRY OF TOURISM, GOVT. OF INDIA TO THE PETITIONER BEARING NO.INDTOUR/CHN/KAR) TTO/2014/(61) DTD.12.3.2014 EXHIBIT P42 TRUE COPY OF THE AUTHORIZATION CERTIFICATE ISSUED WITH RESPECT TO THE VEHICLE NO.KA-
01-AF-5824 DTD. 16.04.2019 EXHIBIT P43 TRUE COPY OF THE AUTHORIZATION CERTIFICATE ISSUED WITH RESPECT TO THE VEHICLE NO.KA-
01-AF-5540 DTD. 16.04.2019 EXHIBIT P44 TRUE COPY OF THE AUTHORIZATION CERTIFICATE ISSUED WITH RESPECT TO THE VEHICLE NO.KA-
01-AF-5542 DTD. 16.04.2019 EXHIBIT P45 TRUE COPY OF CHECK REPORT THAT HAS BEEN ISSUED BY THE ASSISTANT MOTOR VEHICLE INSPECTOR DTD.15.9.2019 ISSUED TO VEHICLE NO.KA-01-AF-5542 RESPONDENTS' EXTS: NIL