Karnataka High Court
Mohammed Fazalulla vs State Of Karnataka And Another on 17 October, 1997
Equivalent citations: 1998(3)KARLJ587, 1998 A I H C 3483, (1998) 3 KANT LJ 587
ORDER
1. Heard the learned Counsel for the petitioner Sri B.R.S. Guptha and Sri B.E. Kotian, learned Government Advocate for respondents.
2. The only point that has been raised in the writ petition in course of arguments relates to the validity of Rule 151, clause (2) of Rules 1989 namely Karnataka Motor Vehicles Rules, 1989 in Motor Vehicles Act, 1988. The petitioner in this petition has claimed the following reliefs.
(1) Declaration that Rule 151(2) of the Karnataka Motor Vehicles Rules, 1989 is ultra vires and is violative of Articles 14 and 19(1)(g) of the Constitution of India;
(2) Quashing of endorsement dated 1-12-1995 bearing No. RTA.I.REPL.PR 60/95-96 and for issuance of a direction to respondent 2 to grant the permission for replacement.
3. Petitioner's case is that, having purchased the stage carriage vehicle bearing registration No. AP 09/U 4047 having the wheel-base of 205" and the seating capacity of 38 + 2, the petitioner moved an application on 24-11-1995 for inclusion of the said vehicle under permit No. 2/82-83 under Section 83(1) of Motor Vehicles Act, 1988 read with Rule 79(1) of the Karnataka Motor Vehicles Rules, 1989. Petitioner's case is that the Petitioner had been the holder of a stage carriage permit bearing No. 2/82-83 which is valid upto 8-6-1997 and authorised to operate on the route Nagalapura Gate to Hiriyur and back. Petitioner's case is that instead of granting permission for replacement, the authority" issued an endorsement bearing No. RTA.I.REPL.PR 60/95-96, dated 1-12-1995 and thereby insisted upon the compliance of Rule 151(2) of the Karnataka Motor Vehicles Rules, 1989 for the purpose of granting replacement of the vehicle in question. The petitioner has annexed that order as Annexure-A. The Regional Transport Authority informed the applicant that he should comply with that requirement. Feeling aggrieved from the order dated 1-12-1995, the petitioner has come before this Court under Article 226 of the Constitution for the reliefs claimed as above.
4. The learned Counsel for the petitioner raised the following contentions.-
That, Rule 151(2) is ultra vires and it is not covered by any of the provisions of the Act. He further contended that it is irrational and is hit by Article 14 and Article 19(1)(g) of the Constitution. The learned Counsel for the petitioner further contended that even if it would be taken that the rule is not ultra vires, it will not apply to the case of the petitioner as the petitioner has prayed for replacing of the vehicle under Section 83 and so the authority has illegally required the compliance with Rule 151(2).
5. These contentions made by the learned Counsel for the petitioner have been hotly contested by the learned Government Advocate Sri B.E. Kotian. Learned Government Advocate contended that the application is not really for replacement as it appears from a perusal of allegations made in paragraph 3 of the writ petition. In paragraph 3 of the writ petition, the petitioner has stated as under.-
"The petitioner filed an application on 24-11-1995 for inclusion of the vehicle AP 09/U 4047 under permit No. 2/82-83 under Section 83(1) of the Motor Vehicles Act, 1988 read with Rule 79(1) of the Karnataka Motor Vehicles Rules, 1989".
The own admission of the petitioner firstly reveals that the petitioner had a stage carriage of his own covered by stage carriage permit No. 2/82-83 which was valid upto 8-6-1997. Inclusion of the vehicle which is purchased at Andhra Pradesh in this very permit has been sought to be included and not to be replaced as per the own allegation of the petitioner. Replacing means disposing of or substituting one thing for another. It had not been stated that he wanted to substitute and get rid of the old vehicle. So, in my opinion, the application cannot be termed as an application for replacement. The petitioner has not filed the copy of the application which had been made on 24-1-1995. If it would have been a case of replacement, it could be argued that some different considerations could have been raised in view of Section 83. But, here the application is for the inclusion of the vehicle under the existing permit. Inclusion means inclusion of some additional vehicle. Whether that was permissible or not is a different matter. If there was an additional vehicle definitely separate permit could be claimed for meeting the requirements of Rule 151 of the Motor Vehicles Rules, 1989, which reads as under.-
"151. Limit of seating capacity.--(1) Subject to the provisions of the Rule 146 regarding seating accommodation, the number of passengers excluding the driver and conductor or attender that a transport vehicle other than goods carriage. Motor cab may be permitted to carry, shall not exceed the number determined by dividing by 58 kilograms the difference in kilograms between the gross laden weight less 109 kilograms and the unladen weight of the vehicle.
(2) The minimum seating capacity of a vehicle shall be directly proportionate to the wheel-base of the vehicle. In transport vehicles other than goods carriages and motor cabs the minimum number of seats including two seats for driver and conductor or attender to be provided shall be as specified in column (2) of the table below.-
TABLE Wheel base Minimum seating capacity 254 to 293 cm.
16294 to 305 cm.
20306 to 343 cm.
25344 to 407 cm.
30408 to 432 cm.
35433 to 496 cm.
45 497to 534 cm.
50534 to 541 cm.
55541 to 561 cm.
60above 561 cm.
656. As regards the question of vires, firstly it is to be taken note of as it appears to have been framed under Section 111 of the Motor Vehicles Act, 1988 which is analogous to Section 70 of the Act 4 of 1939. Sub-section (2) clearly indicates that rule can be made and it may provide for seating arrangements in public service vehicle. In my opinion, the expression seating arrangement in term of wide connotation it will include in itself the fixation of number of seats in public service vehicle and such an arrangement no doubt can be said to be reasonable keeping in view the interest of public. As such, the rule can be said to be covered and to have been made in exercise of powers under Section 111(2)(b) of Act 59 of 1988. The rule cannot be said to be unreasonable or irrational. When I so find I find support for the view I am taking from the decision of their Lordships of the Supreme Court in the case of State of Mysore and Another v K.G. Jagannath. In that case, their Lordships had to consider Rule 216(2) of the Motor Vehicles Act framed under Act 4 of 1939. Their Lordships observed in paragraph 6 as under.-
"It must be made clear that all that is insisted upon under the impugned Rule is the minimum number of seats to be provided in the bus". (Here, the impugned rule is Rule 216(2), which is analogous to Rule 151(2) of Rules 1989). Their Lordships observed:
"The great demand for transport and the rush for seats in buses is too well known to need emphasis. It appears to us that when a certain chassis is capable of having a body constructed on it so that it can carry a certain number of passengers, to construct on that body a lesser number of seats is a waste of valuable transportation facility".
Their Lordships further observed in paragraph 8 that, "The power under Section 70 of the Act is wide enough to enable the making of the impugned Rule therein i.e., Rule 216(2)".
In paragraph 9, their Lordships observed, "The validity of the rule at present has to be considered not merely from the point of view of the effect it has on a particular individual like the respondent. It has to be looked at from the point of view of the generality of the motor vehicle operators as well as the public".
Their Lordships further observed in paragraph 10, "Moreover, as traffic grows, as it has a tendency to grow everywhere, the public will be better served. We are unable to accept the contention that the rule providing for minimum number of seats is, intended to secure more revenue indirectly. .... It is really a rule intended for the benefit of the travelling public. We see no reason not to accept the statement made on behalf of the State that the passenger traffic on every route in the State has increased by leaps and bounds, that generally it was found that the stage carriage operators were carrying passengers in excess of the seating capacity specified in the Registration Certificate and the permit to the serious inconvenience and discomfort of the travelling public in addition to causing loss of revenue to the State, and it was with a view to eliminate the above evils that the impugned rule has been framed.
11. We are unable to agree with the High Court that as usually there are only regulations regarding the maximum number of seats, any regulation regarding the minimum number of seats being very uncommon has to be specifically defended. We have shown above that the regulation is really in the interest of the general travelling public. Nor are we able to agree with the High Court that the State has not taken into account the prevailing conditions in the country with regard to the manufacture and availability of bus chassis. The minimum number of seats insisted upon depends upon the chassis".
Their Lordships further observed, "There is no question here of any arbitrary or excessive invasion of the respondent's rights. The Rule is one of general application which can be justified as being in the interest of the general travelling public".
7. Thus, their Lordships of the Supreme Court upheld the validity and vires of Rule 216(2) of the Mysore Motor Vehicles Rules, 1963. The same reasoning applies to Rule 151(2) of 1989 Rules with full force and rule 151 and 151(2) can be said not to suffer from irrationality, arbitrariness or unreasonableness. It is intended to be in the best interest of the general travelling public.
8. Thus considered, in my opinion, there is no force in the contention of the petitioner's Counsel as regards the question of vires of Rule 151 is concerned. The rule has been framed under Section 111(2)(a) and this Rule is perfectly valid and rational and it is not hit by either Article 14 or 19 of the Constitution. It is intra vires.
9. As regards the second contention that Rule 151 did or did not apply to the case of replacing, no doubt, it had been brought to my notice that a Single Judge of this Court had taken a view that it applies to the application in the matter of replacing as well vide decision of learned Single Judge in A.S. Nagaraju v Regional Transport Officer, Tumkur. Had the application really was an application for replacement, I might have referred it to larger bench, but a different view, it has been brought to my notice by the petitioner's Counsel that in the Division Bench of this Court in P.C. Shivanna v Secretary, Karnataka State Transport Authority, has expressed a view that the law laid down in the case of Sanjeevaiah v Regional Transport Officer, to the effect that the Regional Transport Officer cannot direct the owner to alter the seating capacity under Rule 151(2) of the Rules when permission is sought for replacement is to operate as affirmed and is binding on me. Any way, in the present case, as per the allegations made in writ petition by the petitioner, that the application was only for inclusion of his new vehicle into the stage carriage permit which permit has been granted in 1982-83 and not for replacement i.e., his new vehicle should also be included in the stage carriage permit No. 2/82-83. It does not appear to be a case of the petitioner that he wanted only replacement of new vehicle for old one. So application is not covered by Section 83 of the Act of 1988.
Thus considered in my opinion, the present writ petition has got no merits and it has got to be dismissed. The writ petition, as such, is hereby dismissed as being without merits. Costs are made easy.