Andhra HC (Pre-Telangana)
B. Noorulla Khan And Ors. vs Government Of India, Ministry Of ... on 27 December, 1995
Equivalent citations: 1996(3)ALT231
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER
1. This batch of writ Petitions is filed by All India Tourist and Contract Carriage permit holders questioning the constitutional validity of Rules 185(e)(v), 297-A(6)(f)(iii), 297-A(1)(c), and Rule 297-A (2)(b) read with 297-A(6)(b)(i)of the Andhra Pradesh Motor Vehicles Rules, 1989 and to declare them as ultra vires the Constitution of India and the provisions of the Motor Vehicles Act, 1988.
2. The facts of the case are mat the petitioners are All India permit holders granted Under Section 88(9) of the Motor Vehicles Act, 1988 and the contract carriage permit holders granted permits Under Section74 of the Motor Vehicles Act, 1988. It is the case of the petitioners that the rules framed by the Govemment of Andhra Pradesh Under Sections 93 and 96 of the M.V. Act, 1988 are not applicable to the All India Tourist permit holders as the rules framed by the Central Government by virtue of the power conferred Under Section 88(14) of the M.V. Act 1988 (hereinafter called the 'Act') and the conditions of permit as envisaged Under Section 88(11) of the Act are applicable. Hence it is contended that when once the rules framed by the Central Government hold the field, the rules framed by the State Government are not applicable and the rules framed by the State Government run counter to the rules framed by the Central Government It is the grievance of the petitioners mat under the guise of the APMV Rules, the authorities are interfering with their transport business and causing great hardship to them and therefore the action of the respondents is violative of Article 19(1)(g) of the Constitution of India. It is also contended by them that right to operate the vehicle is available to them throughout the area for which All India Tourist permit is granted. The infringement of their right to run the buses is in violation of Article 19(1)(g) of the Constitution of India. The Central Government framed rules by virtue of the power conferred Under Section 88(14) of the Act and Sub-section 11(iii) of Section 88 empowers the Central Government to prescribe further conditions. Thus, the entire field is occupied by the Centre. It is contended by the petitioners that the Act is a Central legislation made by the Parliament and some powers are conferred on the State to the extent of regulating the conduct of contract and stage carriages and other public service vehicles but the same will not apply to All India Tourist vehicles which are purely governed by the rules framed by the Central Government and therefore the rules framed by the State Government are ultra vires the Constitution and the MV Act and are liable to be struck down. 3. It is contended by the petitioners that Rules 185(e)(v) of APMV Rules envisages furnishing of the list of passengers included in the contract to the authority which granted permit and an attested copy of which shall be enclosed to the trip sheet and it further contemplates that a list of passengers attested by a Motor Vehicles Inspector or an Asst. Motor Vehicles Inspector or Station House Officer of the nearest police station is posted to the Transport authority within 24 hours of the commencement of the contract and a copy of the same should be annexed to the trip sheet if the contract carriage is commencing the journey from a place other than the headquarters of the Transport authority. It is their case that there is no such rule under the rules framed by the Central Government and on the other hand the rule framed by the Central Government, which is in force, (i.e.) Rule 85(1) and (2) of CMV Rules, only envisage preparation of the list of passengers in triplicate and to be carried in the vehicle giving full particulars and produce the same on demand. Thus Rule 185(e)(v) of APMV Rules is contrary to Rule 85(1) & (2) of the Central Rules and therefore the same is ultra vires of the central rules. Similarly it is contended mat Rule 297-A(6)(f)(iii) of APMV Rules contemplates that an agent should enter into a written contract with the hiring party with the particulars mentioned therein, and Rule 297(A) (i)(c) envisages common purpose of journey which means the intention shared alike by all the persons travelling by the public service vehicles and Rule 297 A(2)(b) contemplates that no agent's licence granted to a person shall authorise him to act as an agent for more than one public service vehicle, but a person may be granted more than one licence, for each public service vehicle. It is the case of the petitioners that these rules are contrary to the Central Rules and the provisions of the Motor Vehicles Act and therefore they are ultra vires of the Act and the Constitution and liable to be struck down. 4. The learned counsel appearing for the petitioners further contended that the above rules contemplating to enter into written agreement by an agent with the hiring party and a list of passengers to be got attested by an officer envisaged in the rule and to communicate the same within 24 hours and the common purpose mentioned therein are all ultra vires of the provisions of the main Act, in view of the definition of Contract carriage in Section 2(7) of the Act, and hence the said rules are liable to be struck down.
5. The learned Government Pleader for Transport has contended mat by reading the provisions of the Act and the rules, it is evident that the rules framed by the State Government are not contrary to the rules framed by the Central Government. It is contended by him that the permit granted Under Section 88(9) itself is subject to Section 74 and other provisions mentioned in Section 88(9) of the Act and so the rules framed by the State Government, by virtue of the power Under Sections 95 and 96 of the Act, are valid. It is further contended by him that the rules requiring entering into a written agreement by the agent with the hiring party and submitting a list of passengers attested by the officer envisaged in the rules and the common purpose envisaged in the rules are not beyond the purview of the Act and on the other hand they are made to carry out the purpose of the Act. There is no inconsistency between the Central and the State Rules. It is further contended by the learned Government Pleader that the rules framed by the State Government are not in conflict with the Central rules. It is his contention that where the Central Rules are silent, rules are framed by the State for properly regulating the conduct of the All India permit vehicles. Therefore, it is contended that there are no merits in these writ petitions and are liable to be dismissed.
6. In view of the above rival contentions the important question of law mat arises for consideration is whether the Rules 185(e)(v), 297-A (6)(f),297-A(c) and Rule 297-A(2)(b) read with Rule 297-A(6)(b)(i) of A.P. Motor Vehicles Rules are ultra vires the provisions of the Act and violative of Article 19(1)(g) of the Constitution of India.
7. Originally, the Motor Vehicles Act, 1939 was enacted. Thereafter, Motor Vehicles Act, 1988 was promulgated repealing the earlier Act. Earlier to 1969 there was no provision for grant of All India Tourist permits in the Act. For the first time in 1969 Section 63(7) was incorporated in 1939 Act enabling the authority to grant All India Tourist permits. But no rules were framed. In the year 1986, additional conditions of permit were issued by the Central Government for grant of All India Tourist vehicle permits Under Section 63(7) of 1939 Act. Thereafter, the Central Government framed Central Motor Vehicles Rules, 1989 (hereinafter called the Central Rules), after the Motor Vehicles Act, 1988 came into force, with effect from 1-7-1989. The above said Central Rules are again modified by the present rules which came into force with effect from 26-3-1993.
8. Section 2(47) of the Act defines 'Transport Vehicle'. Section 2(35) defines 'Public service Vehicle'. Section 2(7) of the Act defines 'Contract Carriage' and Section 2(4) of the Act defines 'a stage carriage'. Section 2(43) defines a Tourist Vehicle. Chapter V of the Motor Vehicles Act, 1988 deals with the control of transport vehicles. Section 66 envisages necessity for permits. Section 67 empowers the State Government to control road transport. Section 69 envisages making an application for grant of permit. Section 72 enables the authority to grant stage carriage permit. Section 73 provides for making an application for grant of contract carriage permit. Section 74 enables the concerned authority to grant contract carriage permit. Section 84 envisages the general conditions attaching to all permits. Section 86 provides for cancellation and suspension of permits. Section 88 provides for validation of permits for use outside the region in which it is granted. Section 88(9) enables the Transport authority to grant All India tourist permits subject to the rules made by the Central Government under Clause 14 of Section 88 for the whole of India or in such contiguous States, not less than three in number, including the State in which the permit is issued, according to the choice indicated in the application. The provisions of Sections 73, 74, 80 to 86 and 89 shall as far as may apply in relation to such permits. Section 88(11) lays down the conditions of every permit granted under Sub-section (9) of Section 88. Section 88(11)(iii) empowers the Central Government to prescribe such other conditions. Sub-section (14)(a) of Section 88 of the Act empowers the Central Government to make rules to carry out the purpose of Section 88. Section 95 of the Act empowers the State Government to make rules as to stage carriages and contract carriages and the conduct of passengers in such vehicles. Section 96 empowers the State Government to make rules for the purpose Chapter V of the Act to carry out into effect the provisions of the said Chapter.
9. It is firstly contended by the counsel for the petitioners that the impugned rules are violative of the provisions of the main Act and therefore they are ultra vires the Act and are unconstitutional and are liable to be struck down. It is contended that the definition of contract carriage' envisaged Under Section 2(7) of the Act does not prescribe entering into written contract by an agent with the hiring party and it did not provide for getting the list of passengers to be attested by an officer envisaged in the provision and to be submitted before the authorities before starting of the vehicle if the vehicle starts from the headquarters and where the vehicle starts from the place other than the headquarters, the list to be submitted within 24 hours of the commencement of journey and the above Section does not contemplate any common purpose as defined in Rule 297-A(1)(c). It is also contended that the embargo in Rule 297(2)(b) that no agent's licence granted to a person, shall authorise him to act as an agent for more than one public service vehicle, except for the vehicle for which licence is granted, are all outside the purview of the statute and therefore ultra vires the Act. It is relevant to extract Section 2(7) of the Act, which reads thus:
"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 express or implied, for the use of such vehicle, as a whole for the purpose of passengers mentioned therein and entered into by a person with a holder of 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 taxi cab; and
(ii) a motor cab notwithstanding that separate fares are charged for its passengers.{ In V. Govindarajulu v. The Regional Transport Officer, Anantapur, (F.B.) the distinction between contract carriage and stage carriage, came up for consideration before a Full Bench of this Court. The Full Bench of this Court, after considering the facts and also the decision in Roshan Lal v. State of U.P., summed up as follows:-
"(1) The definition of 'contract carriage' Under Section 2(3) of the Act is plain and the language is not so elastic and wide so as to bring within its sweep a situation never intended by the Legislature.
(2) The dominant factor under the definition that determines whether a transport vehicle is used as a contract carriage or as a stage carriage is whether the vehicle is hired as a whole for a fixed or agreed sum under a prior contract, express or implied, by a single person or party with the owner of the vehicle.
(3) If once a single contract is entered into expressly or impliedly for the use of the vehicle as a whole, from the mere fact that the leader of the contracting party or one of the persons in tins party collected fares from the passengers, which is very often in vogue, the vehicle cannot be said to have been used as a stage carriage.
(4) If there was no single contract with the owner in respect of the vehicle and if no person or leader of the party could exercise full control over the vehicle and the several passengers had separately contracted for the use of the vehicle and paid individual fares, the transport vehicle used in such manner falls within the definition of 'stage carriage' and not 'contract carriage'".
In Brijendrakumar Chowdari v. State of U.P., the Supreme Court, while making a distinction between 'contract carriage' and 'stage carriage' held as follows:
"The definition (in Section 2(7)) of 'contract carriage' makes it dear that in order that a 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 the use of the vehicle as a whole.........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 of party for their transport from place to place and the whole vehicle is at their disposal."
By reading the definition in the Act as well as the principles laid down in the abovesaid decisions it is manifest that the requirements of a contract carriage permit holder to conduct such contract carriage are as follows:-
(i) commonness of the contract;
(ii) commonness of the hiring party to hire the vehicle as a whole;
(iii) journey to a common destination.
(iv) not to set down or pick up passengers en route the journey; and (v) the contract should be on time basis, whether or not with reference to any route or distance or from one point to another for a fixed or agreed rate or sum.
Thus, it makes it clear that the contract can be either express or implied. The term 'express contract' can be taken to include 'a written contract', but 'implied contract' itself denotes that it is not mandatory to have a written contract It is settled principle of law that the rule making authority by virtue of the rule making power make rules to carry out the purpose of the Act but the said rules cannot go beyond the purview of the Act or contrary to the Act. In the case on hand, the definition of 'contract carriage' as stated supra contemplates express or implied contract which includes that a contract without writing also can be entered into by the person with the permit holder or his agent for journey. The Rule 297-A(6)(f) contemplates that where a 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 particulars mentioned therein. This rule obligates the agent to enter into a written agreement with the hiring party. An agent has to obtain a licence as contemplated Under Section 93 of the Act. Further the agent has to obtain licence for each vehicle separately. That means, he is an agent of the permit holder of each vehicle. Rule 297-A of the APMV Rules deal with special provisions regarding licensing of agents in the sale of tickets etc. Rule 297-A(6)(f) mandates the agent to enter into written agreement with the hiring party for engaging a contract carriage for journey. It is contended that the said Rule is applicable only to agents and not the permit holders, and when the rule is not applicable to permit holders it cannot be said that the rules are ultra vim of Section 2(7) of the Act. It has to be noted that the licence is granted to an agent for each vehicle as per Section 93 of the Act and as per the rules he is an agent of the permit holder. According to Section 2(7) of the Act a person on behalf of the hiring party can contract with the permit holder or his agent. When the agent, on behalf of the permit holder, is entering into the contract with the hiring party or a person on their behalf, it is deemed that the principal himself is entering in to the contract, because the agent is acting on behalf of the principal (i.e.) the permit holder herein. Therefore, the Rule 297-A (6)(f) mandating the agent to enter into written agreement is ultra vires the Section 2(7) of the Act and therefore it is liable to be struck down on that ground itself.
10. Rule 297 A(2)(b) r/w. 297 A(6)(b)(i) prescribes that an agent must obtain licence for each vehicle separately and he cannot act on one licence as an agent for more than one public service vehicle. Thus an agent has to obtain licence for each public service vehicle. This rule is made to carry out the purpose of Section 93 of the Act which envisages granting of licences to agents. Section 93 contemplates that no person shall engage himself as an agent or a canvasser, in the sale of tickets for travel by public service or in otherwise soliciting customers for such vehicles or as an agent in the business of collecting forwarding or distributing goods carried by goods carriages, unless he has obtained a licence from such authority and subject to such conditions as may be prescribed by the competent authority. Sub-section (2) of Section 93 lays down the conditions for grant of licence prescribing the period of licence, Renewal, fee payable and the deposit of security. Sub-clause (f) of Sub-section (2) of Section 93 empowers the State Government to prescribe such other conditions. In pursuance of mat power coupled with Sections 95-and 96 of the Act, the rules are framed. By reading the above Section and Rule 297 A (2)(b) together we are of the firm view that the said rule is not in any way contrary to the provisions of the main Act nor ultra vires of the provisions of the Act and the Constitution. It is settled principle of law that when the Act confers power to make rules, the rule making authority has got ample power to make Rules to carry out the purpose of the Act. In the present case Section 93 envisages that licensed agents only can deal in sale of tickets etc. Therefore, to effectively regulate and control the functioning of the agents, the rules are made. Therefore, we do not see any reason to hold that the said Rule 297-A (2)(b) is ultravires of the provisions of the main Act. Accordingly the Rules 297-A(2)(b) and 297-A(6)(b)(i) of the APMV Rules are declared as valid and legal
11. Rule 297-A(i)(c) contemplates common purpose of journey which is as follows:
(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 tourists" 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.
It is contended on behalf of the petitioners that the definition of 'contract carriage' does not contemplate the 'common purpose' as envisaged in the above rule and according to them the common purpose' means only the place of destination and nothing else, and hence the said rule is ultra vires the provisions of Act. On the other hand it is contended by the learned Government Pleader that by reading Section 2(7), it is dear that the hiring party must enter into a written contract with the permit holder or the agent of a vehicle as a whole for a journey from one point to another, without stopping to pick up or get down passengers in between and putting all the ingredients together it can only be inferred that the passengers travelling in the vehicle for a journey must have common purpose i.e., they are going from one place to another with common purpose but not different purposes. A reading of Section 2(7) extracted supra indicates that the 'common purpose' means that all the passengers travelling in the contract carriage must have a common destiny, but it cannot be stretched beyond that to infer that purpose of going to a common destination must also be the same. Where a group of persons are travelling from place 'A' to place 'B'. the main requirement is that they must travel from place 'A' to 'B' and one may attend a party and the other group may go to attend a function or meeting etc. Therefore, it cannot be inferred that the travelling party, as a whole, must have only 'common purpose', it is enough if they have a common destination. If the common purpose as defined by Rules is read into the definition of Section 2(7), it amounts to amending or modifying the said Section which is within the purview of the Legislature but not with the Courts. For the foregoing reasons, we are not able to agree with the contentions of the learned Government Pleader. Therefore, we hold that Rule 297-A(1)(c) is ultra vires the provisions of the main Act and the Constitution and accordingly it is struck down as ultra vires of the main Act and as unconstitutional.
12. Rule 185(e)(v) contemplates that the contract carriage permit holder shall furnish a list of passengers included in the contract to the transport authority which has granted the permit and an attested copy of it shall be annexed to the trip sheet in the vehicle and where the vehicle commences the journey from a place other than the headquarters of the transport authority, the permit holder must get the list of passengers attested by a Motor Vehicles Inspector/Asst. Motor Vehicles Inspector/Station House Officer of the nearest police station and post the same to the transport authority within 24 hours of the commencement of the journey and a copy of the same should be annexed to the trip sheet. It is contended by the learned counsel for the petitioners that the said rule is ultra vires of the main provisions of the Act and hence liable to be struck down as un-constitutional. A combined reading of Section 2(7) and Sections 73, 74 and 88(8) would lead us to the conclusion that even in the absence of any rules, the competent authority is at liberty to call for a list of passengers as the same is not prohibited by the rules. This view is fortified by a decision of this Court in Mohi. Basha and Ors. v. The Secretary, Regional Transport Authority, which has been approved by the Supreme Court in Achyut Shivram Gokhale v. Regional Transport Officer and Ors., . Therefore, we do not see any force in the contention of the learned counsel for the petitioners. Further, Section 95 of the Motor Vehicles Act, 1988 empowers the State Government to make rules as to stage carriage and contract carriages and Section 96 empowers the State Government to make rules to carry out the purpose of the Act. Therefore, it cannot be said mat Rule 185(e)(v) is, in any way, ultra vires or in contravention of the provisions of the main Act and beyond the purview of the Act. Accordingly, we hold that Rule 185(e)(v) of the Andhra Pradesh Motor Vehicles Rules is valid, legal and constitutional.
13. It is secondly contended by the learned counsel appearing for the petitioners that the rules framed by the State Government Under Sections 95 and 96 of the Act are not applicable to the All India Tourist permit vehicles, for which permit is granted Under Section 88(9) and conditions of permit are prescribed Under Section 74 of the Act. To consider the above contention, it is relevant to look at Section 88(9) of the Act, which reads:
"Section 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 me provisions of Sections 73, 74, 80, 81, 82, 83, 84, 85, 86 and 89 shall, as far as may be, apply in relation to such permits."
By reading the provision, it is clear that the Transport authority is empowered to grant All India Tourist permits for the purpose of promoting tourism, notwithstanding anything contained in Sub-section (1) of Section 88 and subject to any rules to be made by the Central Government under Sub-section (14) of Section 88, for the whole of India or in such contiguous States not less than three in number including the State in which the permit is issued. Further Sections 73, 74, 80 to 86 and 89 are applicable, as far as may, in relation to such permits. Sub-section (11) of Section 88 envisages conditions of every permit granted for All India Tourist vehicles. Section 88(11) reads:
"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."
By reading the above provision, it is vivid that the vehicles to which All India tourist permits are granted shall conform to the description, requirement of seating capacity, etc., as specified by the Central Government and such vehicles shall be driven by persons having such qualifications as may be specified by the Central government and it is also open for the Central Government to prescribe any other conditions. Section 88 (14)(a) of the Act empowers the Central Government to make rules for carrying out the provisions of Section 88.
14. Section 73 prescribes the particulars to contain in an application to be filed for the permit of contract carriage. Section 74 provides for granting of permit by the Transport authority. Section 74(2) prescribes the conditions of permit laid down therein and further conditions to be prescribed by the authority. Section 80 envisages the procedure to be applied while granting permits. Section 81 provides for duration and renewal of permits. Section 82 deals with transfer of permits. Section 83 deals with replacement of vehicles. Section 84 prescribes general conditions attaching to all permits. Section 85 deals with general forms of permits. Section 86 deals with cancellation and suspension of permits. Section 89 deals with appeals. In the light of above provisions, no section, except Section 74 which prescribes conditions of permit in respect of contract carriages, deals with the conditions of permit. Then the question arises as to what extent Section 74 applies to the permits granted Under Section 88(9). Section 74 (1) empowers the Regional Transport Authority to grant permit in accordance with the application or refuse to grant. Section 74(2) says that the authority may, subject to any rules that may be made under this Act, grant contract carriage permit. Sections 95 and 96 empower the State Government to make rules as to stage carriages and contract carriages and for the purpose of Chapter V. By reading Sections 74(2), 95 and 96 together, it is evident that stage carriages and contract carriages are governed by the rules framed Under Sections 95 and 96 and the conditions prescribed Under Section 74(2) and further conditions to be prescribed Under Section 74 (2)(xiii). And, whereas, as per Section 88(9), (11) and (14)(a), the Central Government is empowered to make rules and prescribe conditions to the permits of All India tourist vehicles and for carrying out the provisions of Section 88. Thus, All India tourist permits are governed by the rules framed Under Section 88 (14)(a), conditions of permit laid down Under Section 88 (11) and further conditions to be prescribed Under Section 88 (11) (iii) of the Act. The conditions of permit laid down in Section 74(2)(i) to (xiii) are part and parcel of the Act and there is no inhibition in applying those conditions. But, the question is whether the State Government can frame rules and apply them to the permits granted to All India Tourist Vehicles. In view of the provisions contained in Sections 74, 88(9), 88(11), 88(14)(a), 95 and 96 of the Act, it cannot be said that the further conditions to be prescribed Under Section 74(2)(xiii) can be made applicable to All India Tourist Permit vehicles also when the Act specifically prescribed conditions of permit and rules applicable to them. Therefore, the contention of the Government Pleader that the State Government can prescribe conditions to the permits granted to All India Tourist Vehicles Under Section 74(2)(xiii)isnot tenable because powers are conferred on the State Government to frame rules and prescribe conditions of permit in regard to stage carriages, contract carriages, etc., and whereas in respect of All India tourist vehicles the powers are conferred on the Central Government alone to frame rules and prescribe conditions Under Section 88 of the Act. This is a special provision dealing with All India tourist vehicles to which permit is granted by the State Transport Authority under rules framed by the Central Government. Therefore, this is an exception to the general rules to be framed Under Section 96 and the rules to be framed in respect of stage carriages and contract carriages Under Section 95 and other rules to be framed for private vehicles. Thus, the Parliament while making a scheme for granting permits and providing for granting of permits and renewals, envisaged the control and supervision and conduct of such vehicles on the State Government where the vehicles are run within the territorial area of the State Government. Where the permits are granted for All India Tourist Vehicles, which will run throughout India or atleast in three States including the State in which permit is granted, the power is conferred on the Central Government to frame rules and prescribe conditions of permit. Thus, a clear distinction is made between the rule making authorities for the vehicles to which permit is granted to All India tourist vehicles and other vehicles. It is not the intention of the Parliament to empower the State Government to frame rules governing the vehicles for which permits are granted Under Section 88(9) and rules framed under Sub-section (14) are applicable. Therefore, it has to be held that Rules framed Under Sections 95 and 96 of the Act or the conditions of permit prescribed Under Section 74 are not applicable to the All India tourist vehicles.
15. The Motor Vehicles Act governs different types of motor vehicles, which run on intra-State and inter-State routes. If we have to accept the contention that the Rules framed by the State Government Under Sections 95 and 96 and the conditions of permits prescribed Under Section 74 by virtue of the delegated power of parliamentary enactment, are applicable to all India Tourist vehicles, there is possibility of each State framing different rules which result in contradiction to and conflict with the Rules framed by the Central Government. Further, it amounts to State Government encroaching into the field allotted to the Central Government by parliamentary enactment. When the State Government has no power by enacting a law to encroach upon the Central legislation regarding the subject enumerated in List III, except where the assent of the President is obtained, it cannot be said that the State will have power by virtue of delegated authority of parliamentary enactment to make rules or prescribe conditions of permit encroaching upon the field occupied by Centre.
16. In the present case, the Central Government framed the Tourist Vehicle (Addl. Conditions of Permit) Rules in 1989 and the permit holder had to prepare a list of tourist passengers giving their full particulars, duly attested by the Executive Magistrate as per Rule 85(1). Under the amended Rules of 1993, the attestation by the Executive Magistrate of the list was deleted. The A.P. Motor Vehicles Rules prescribe furnishing a list of passengers duly attested to the transport authority. The Central Rules do not prescribe the condition that an agreement shall be drawn up in writing and executed by the agent and the hiring party, whereas the State Rules prescribe so. The Motor Vehicles Act is a parliamentary enactment and when the rule making power is conferred on the Centre and the State simultaneously for the categories of vehicles prescribed therein, the State Government by virtue of the rule making power cannot encroach into the field allotted to the Centre by the Act. If the State Rules are made applicable to the All India tourist vehicles, there will be conflict with the rules framed by the Central Government. The doctrine of repugnancy applies in such cases. In this context, it is relevant to refer to some of the constitutional provisions dealing with distribution of legislative powers between the Centra and the State. Articles 246, 248 and 254 in Part II of Chpter I of the Constitution, deal with the distribution of legislative powers between the Parliament and the State Legislatures. While, under Article 246 of the Constitution the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I and has also the power to make laws with respect to any of the matters enumerated in List III, the State Legislatures have exclusive power to make laws with respect to any of the matters enumerated in List II subject, of course, to the Parliament's power to make laws on matters enumerated in Lists I and III. Parliament has also the power to make laws on matters enumerated in List II for any part of the territory of India not included in a State. Article 248 vests the Parliament with the exclusive power to make any law not enumerated in the Concurrent list or the State List including the power of making any law imposing a tax not mentioned in those lists. This is a residuary power of legislation conferred on the Parliament and is specifically covered by Entry 97 of list I. In case of repugnancy in the legislations made by the Parliament and the State legislatures which arises in the case of Legislations on a subject in List III, the law made by the Parliament, whether passed before or after the law passed by the State Legislature, shall prevail and to that extent, the law made by the Legislature of a State will be void. Where, however, the law made by the Legislature of the State is repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, the law made by the Legislature of the State shall, if it has received the assent of the President, prevail in that State. However, this does not prevent the Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing a law so made by the Legislature of the State. In case of repugnancy arising between a pre-constitutional law made by the then Provincial legislature which continues to be in force and the post-constitutional law of Parliament, by virtue of Article 254(1), the law made by the Parliament shall prevail, notwithstanding that the Provincial Legislature was competent to make the law prior to the commencement of the Constitution. Article 254(1) reads thus:
"254(1): Inconsistency between laws made by Parliament and the laws made by the Legislatures of States - (1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact.........the law made by Parliament, whether passed before or after the law made by the Legislature of such State.........shall prevail and the law made by the Legislature of state shall, to the extent of the repugnancy, be void."
From the above constitutional provisions, it is abundantly clear that in case of repugnancy arising between the laws made by the Parliament regarding the subjects enumerated in the Concurrent List and the laws made by the Provincial Government, the laws made by the Parliament will prevail over the laws made by the State Legislature. When once the field is occupied by the Central Government, the State Government cannot enact any law regarding the same subject. In the present case, the Central Government is empowered to make rules under Sub-section (14)(a) of Section 88 of the Act and prescribe the conditions of permit under Sub-section (11) of Section 88 and in fact the Central Government framed rules under Sub-section 14(a) of Section 88. These rules made by the Central Government are made applicable to All India Tourist vehicles and further provision is provided to prescribe conditions of permit. Thus, when the entire field is occupied by the Central Government, the State Government has no power to frame the rules governing the control of All India Tourist vehicles or for regulating the conduct of All India Tourist vehicles.
17. It is contended by the learned Government Pleader that where the rules framed by the Central Government are silent, the State Government can frame the rules. It is well settled principle of law that where the field is occupied by the Parliamentary legislation, the State has no power to make a legislation and even if State Government makes the legislation, the same will be void or repugnant by virtue of Article 254(1) of the Constitution of India.
18. It is also contended by the learned Government Pleader that Section 88(9) of the Act itself envisages that Sections 73, 74 and 80 to 86 and 89 of the Act shall apply as far as may be in relation to such permits. It is a fact that Sections. 73 and 74 of the Act shall apply as far as may be, in relation to such permits. This only means that Sections 73 and 74 of the Act will only apply to the extent of following the procedure for grant of permits by the State Government authorities and the rules framed by virtue of the provisions Under Section 74 and further conditions prescribed in Section 74 by virtue of the powers conferred Under Section 74(2)(xiii) will not apply, because Sub-section (11) of Section 88 itself empowers the Central Government to prescribe such other conditions. If the above contention of the learned GP is accepted, there is possibility of the State Government also prescribing conditions for grant of All India Tourist permits besides the conditions prescribed by the Central Government and the same may also result in conflict because All India Tourist permits are granted for the whole of India or in contiguous States not less than three in number including the State in which permit is granted. Thus, there is possibility of each State framing its own rules and prescribing conditions for grant of permits. Then, in such a case, there will be any amount of conflict, confusion between the rules framed by the different States and the rules framed by the Central Government and the same will result in chaos., and it also amounts to permitting the States to frame rules where the Centre is empowered to frame the rules. That is why the repugnancy clause in Article 254 of the Constitution of India comes into play and the rules framed by the State will not apply to the All India Tourist permits granted in pursuance of the power Under Section 88(9) of the Act and the rules framed by the Central Government. Therefore, we are not able to agree with the contentions of the learned Government Pleader. We are also fortified in this regard by the decision of the Supreme Court in State of Tamil Nadu v. Adhiyaman Educational & Research Institute and Ors. (Civil Appeal Nos. 1634-1635/95 dated 6-4-1995). In view of the principle laid down by the Supreme Court in the above stated judgment, we hold that the rules framed by the State Government, by virtue of the power conferred Under Sections 95 and 96 of the Motor Vehicles Act and the conditions prescribed by it for grant of permit Under Section 74(2)(xiii), are not applicable to All India Tourist permits.
19. It is lastly contended by the learned Government Pleader that some of the petitioners herein and others filed W.P.Nos. 2441 of 1994 and batch and the said petitions were dismissed by a Division Bench of this Court, to which Justice Y. Bhaskar Rao is a party, and hence the said judgment operates as res judicata and hence the present writ petitions are not maintainable and are liable to be dismissed. We have perused the above said judgment. In those writ petitions the petitioners sought a writ of Mandamus directing the respondents and their subordinates not to seize and detain the vehicles covered by All India tourist permits if the vehicles are plied under contracts with the Agents licensed under Rule 297-A of the A .P. Motor Vehicles Rules and declare such seizures as illegal and void. The constitutional validity of the rules was not challenged in the above writ petitions. The entire contentions of the petitioners therein went round the action of the respondents in seizing the vehicles and whether there is any violation on the part of the agents or the list submitted to the authorities was not in accordance with the rules, Therefore, we are unable to agree with this contention of the learned Government Pleader also. It is a fact that the above said writ petitions were dismissed holding mat permit holders are liable for the acts committed by their agents. Therefore, said judgment will not operate as res judkata.
20.For the fore going reasons, we hold that Rules 297-A(6)(f) and 297-A(1)(c) are ultra vires the provisions of the Motor Vehicles Act, 1988 and violative of Article 19(1)(g) of the Constitution and hence they are struck down as unconstitutional. Rules 185(e)(v) and 297-A (2)(b) read with 297-A (6)(b) are held to be valid, legal and constitutional. We further hold that the rules framed by the State Government Under Sections 95 and 96 of the Act and the further conditions prescribed in Section 74 of the Act are not applicable to All India Tourist permit vehicles.
21. The writ petitions are allowed as indicated above. In the circumstances, there shall be no order as to costs.
22. The learned counsel for the petitioners contended that pending disposal of writ petitions,, the petitioners were directed to furnish bank guarantee in a sum of Rs. 3,000/- for each vehicle per quarter and accordingly they are furnishing. It is stated that as the writ petitions are now partly allowed, bank guarantees may be ordered to be discharged. On the other hand, the Government Pleader stated that the petitioners were asked to furnish bank guarantee only to safeguard the interest in case there is any violation so that the bank guarantee can be encashed towards penalty imposed by the department.
23. In view of the above, it is not open to the respondents to collect any amount from the petitioners where there is any violation of Rules 297-A(6)(f) and 297 A(1)(c) or the Rules framed Under Sections 95 and 96 and conditions prescribed Under Section 74(2)(xiii) in respect of All India Tourist Permit Vehicles. The bank guarantees of the petitioners for violation of the above said rules may be discharged. For all other contraventions, it is open to the respondents to take action according to law.
24. The Government Pleader requested to grant leave to appeal to the Supreme Court. We see no substantial question of law of general importance to be decided and therefore leave is refused.