Karnataka High Court
Javare Gowda vs Regional Transport Officer on 10 October, 1990
Equivalent citations: ILR1991KAR36, 1991(1)KARLJ126
JUDGMENT Rama Jois, J.
1. In this Petition, the petitioner has, inter alia, sought for the issue of a Writ of Mandamus directing the respondent to grant the application made by him for alteration of the seating capacity of his Motor Vehicle under Section 32(1) of the Motor Vehicles Act, 1939 ('the Act' for short).
2. The facts of the case in brief are as follows:
The petitioner is the owner of a Taxi Gab bearing Registration No. KLM. 3315, which is a diesel trucker. The seating capacity of the taxi cab has been 6+1. He applied to the Regional Transport Officer, Mandya, under Section 32(1) of the Act praying for alteration of the seating capacity of the vehicle from 6+1 to 5+1. The application was rejected as per Endorsement dated 25-8-1987. The endorsement reads;
"Sri Javaregowda registered owner of Motor Vehicle No. KLM 3315 is hereby informed that his application for alteration of seating capacity 6+1 to 5+1 is rejected on the following ground;
1. The vehicle KLM 3315 is adopted to carry more number of passengers. Reducing seating capacity would result in unnecessary waste of valuable space and facility.
2. Prior approval or sanction was not accorded for such reduction of seating capacity by the R.T.A., which granted the permit. In the absence of such approval permit will be liable for cancellation and vehicle is liable be re-classified as motor car and application put in is not bona fide and substantial is made with an intention to circumvent and defeat to provision of law."
As can be seen from the order, the reason given by the Authority for rejecting the application was that reducing seating capacity would result in unnecessary waste of valuable space and facility and that the granting of the request was not bona fide and was intended to circumvent and defeat the provision of law. Questioning the legality of the said decision, the petitioner presented this Petition.
3. As there has been divergence of opinion regarding the scope of Section 32 of the Act, the learned Judge before whom the matter came up for hearing has referred the Writ Petition to Division Bench under Section 9 of the Karnataka High Court Act.
4. The decision in which there has been divergence of opinion are:
(i) In W.P. Nos. 1003 and 1004/1986, an application under Section 32(1) of the Act had been rejected on the ground that the reduction of seating capacity would result in loss of revenue to the State and therefore an application seeking reduction of seating capacity could not be granted. Sri Chandrakantharaj Urs, J, who decided the matter held that the reason given for rejecting the application was extraneous to Section 32 of the Act. The relevant portion of the Order reads:
"Similar question arose for consideration in W.P. No. 12185/1985. I have held therein that refusal under Section 32 of the Act on the ground that the tax liability is going to be reduced is a consideration extraneous to the power conferred on the respondent under Section 32 of the Act. Reasons for refusal under the Act should be found within the scope and ambit of the Act.
(Underlining is mine)
(ii) In W.P. No. 12995/1987, decided by Swami, J, on interpreting Section 32 of the Act, it was held that an application for reducing the seating capacity could be rejected if it were to adversely affect public interest.
5. The learned Judge, before whom the matter carne up for hearing, was of the view that as Section 32 of the Act does not set out any particular ground on which an application for alteration of seating capacity could be granted or rejected, the Authority has to grant the application and therefore he referred the matter to Division Bench.
6. A reading of Section 32 of the Act would indicate that it is necessary for the owner of a motor vehicle to have the particulars entered in the Certificate of Registration altered as and when it becomes necessary to reflect the correct existing position. Before effecting any such alteration, the registered owner is required to give a notice to the Registering Authority and obtain the approval of the Registering Authority. Sub-section (2) of Section 32 of the Act provides that the Authority should communicate the approval or rejection to the proposed alteration within a period of 7 days and if not rejected within that period the approval shall be deemed to have been given. It is significant to note that the aforesaid Section does not provide any ground for granting or refusing permission. Therefore, it appears to us that if a owner decides to alter the seating capacity of a vehicle he has the right to do so, but before effecting such alteration he has to give notice to the Registering Authority and if the Registering Authority fails to communicate its decision within 7 days, the approval should be deemed to have been granted.
7. We are unable to agree with the view that the application could be rejected on the ground that reduction of seating capacity would have the effect of reducing the tax liability. If that reason constitutes a valid ground for rejecting an application for alteration of the seating capacity of a vehicle then every application for reducing the seating capacity of a vehicle could be rejected for, in every such case there would be reduction of tax liability. Further, we are also unable to agree that the application for reducing the seating capacity could be rejected on the ground that it is likely to affect public interest in that there would be loss of valuable space in the vehicle for the reason, the decision as to whether the vehicle should have more seating capacity which makes the travelling less comfortable or should have less seating capacity which makes the travelling more comfortable, is again a matter for the owner of the vehicle to decide having due regard to business considerations. For instance it cannot be said that in respect of a motor car just because the seating capacity is six it would be engaged or used by a party of six passengers. It is always possible that a taxi having seating capacity of six could be engaged by 3 or 2 persons or even a single person. Therefore, we are unable to agree that not to permit the reducing of the seating capacity is in the interest of general public.
8. In our opinion if the intention of the Legislature was that the right of the owner o or alter the seating capacity should be curtailed or controlled, the Legislature would have incorporated such a condition in Section 32(1) of the Act or atleast in Section 52 of the 1988 Act which corresponds to Section 32 of 1939 Act. But it has not been done.
9. We, however do not express any opinion on the question as to whether the Government has got the power to make Rules setting out the grounds on which an application under Section 52 of 1988 Act for increasing or reducing the seating capacity of a vehicle could be granted or rejected. If such Rule making power exists, and Rules are validly made then the Authority would be bound to consider the application in the light of such Rules.
10. In the result, we make the following order:-
(i) The Writ Petition is allowed.
(ii) The impugned order Annexure-A is set aside.
(iii) A direction shall issue to the respondent to allow the application of the petitioner filed under Section 32 of the Motor Vehicles Act, 1939, if the fitness certificate in respect of the vehicle is in force.