Chattisgarh High Court
Abdul Shafiq vs The State Of Chhattisgarh 60 ... on 26 July, 2018
Bench: Ajay Kumar Tripathi, Prashant Kumar Mishra
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 2004 of 2017
1. Dr. Sandeep Jain S/o Late Shri M.C.Jain, Aged About 45 Years R/o Gudhiyari,
Ward No.15 Aarang, Tehsil and Post Arang, District Raipur, Chhattisgarh
2. Dinesh Chandrakar S/o Late Shri Sakha Ram, Aged About 45 Years R/o Village
Lakholi, Tehsil and Post Arang, District Raipur, Chhattisgarh
3. Ramesh Kumar Tiwari S/o Late Shri Tej Bali, Aged About 53 Years R/o
Mahamaya Para, Aarang, Post Arang, District Raipur, Chhattisgarh
4. Hardeep Singh Khanuja S/o Shri Kulwant Singh, Aged About 30 Years R/o Ward
No.1, Near Bus Stand, Mahasamund, Tehsil and District Mahasamund,
Chhattisgarh
5. Kulwant Singh Khanuja S/o Late Shri Joga Singh, Aged About 59 Years R/o
Ward No.1, Near Bus Stand, Mahasamund, Tehsil and District Mahasamund,
Chhattisgarh
6. Dilip Singh S/o Late Shri Mangilal Ji, Aged About 58 Years R/o Ward No.1, Near
L.I.C. Building, Mahasamund, Tehsil And District Mahasamund, Chhattisgarh
---- Petitioners
Versus
1. State of Chhattisgarh Through Ministry of Transport, Mantralaya, Mahanadi
Bhawan, Naya Raipur, Chhattisgarh 492002
2. State Transport Authority Chhattisgarh Through Secretary, Indravati Bhawan,
Third Floor, C Block Mantralaya, Naya Raipur, Chhattisgarh 492002
3. State of Chhattisgarh, Law And Legislative Affairs Department, Through
Secretary, D.K.S. Bhawan, Raipur, Chhattisgarh 492001
---- Respondents
WPC No. 1892 of 2017
• Abdul Shafiq S/o Shri Adbul Hakeem Aged About 53 Years Occupation- Bus Operator, General Secretary of State Bus Union, Resident of Near Sahara Battery, Moudhapara Raipur, Chhattisgarh
---- Petitioner Versus
1. The State of Chhattisgarh, Through The Principal Secretary, Government of Chhattisgarh, Transport Department, Secretariat, Mahanadi Bhawan, New Raipur Chhattisgarh.
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2. The Transport Commissioner, Transport Department, Indrawati Bhawan, New Raipur, District Raipur Chhattisgarh
3. The Regional Transport Authority, Raipur District Raipur Chhattisgarh.
4. The Regional Transport Officer/Taxation Authority/Registration Authority, Raipur Chhattisgarh
---- Respondents For Petitioner : Shri Kishore Bhaduri and Shri Kshitij Sharma, Advocates For Respondent/State : Shri Prafull N Bharat, Additional Advocate General Hon'ble Shri Ajay Kumar Tripathi, Chief Justice Hon'ble Shri Prashant Kumar Mishra, Judge Order on Board Per Ajay Kumar Tripathi, Chief Justice 26/07/2018
1. Heard counsel for the parties.
2. The Petitioners are engaged in the business of transport especially passenger vehicle. They are primarily said to be owners of light transport vehicles. The vehicles are used for transport of passengers on short or medium hauls. They have got aggrieved by issuance of amendment Notification No. 620/ rd-/ifj-/2011, dated 18.05.2011 by virtue of which Rule 70-A has been added to the original Chhattisgarh Motor Vehicles Rules, 1994 (henceforth 'the Rules, 1994'), which is Annexure P/1. Also under challenge is the Notification No. F5-07/ vkB&ifj-/2016, dated 08.02.2017 which has again amended certain provisions of Rule 70-A. This Notification is Annexure P/2.
3. By virtue of these amendments brought in by the State of Chhattisgarh, they have fixed life of vehicle which can be plied on the roads as Stage Carriage Vehicles between various stations.
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4. From the original Notification dated 18.05.2011, the reason for issuance of Rule 70-A is said to be object of providing safety and convenience of travelling passengers on the classified routes. The routes were divided into three categories; (A) short route which covers distance upto 65 KMs one way; (B) medium route which covers distance over 65 KMs but not exceeding 165 KMs one way; and (C) long route which covers distance of more than 165 KMs one way.
5. This amended Rule notified by the State of Chhattisgarh is supposed to be under purported exercise of power under Sections 65, 96 and 211 of the Motor Vehicles Act, 1988 (henceforth 'the Act'). By virtue of three classifications as to the distance, age of the vehicle has also been laid down wherein the Rule states that no Stage Carriage Permit shall be granted or renewed on long routes if the vehicle is more than 8 years old from the date of initial registration etc. In case of medium route, 10 years old from the date of registration etc. and short route where the age of the vehicle should not be 12 years or more from the date of initial registration etc. The said age of the vehicles has now been made uniform to be 12 years for all classes of routes by yet another notification issued on 08.02.2017 which is Annexure P/2.
6. Argument on behalf of the Petitioners made is that the power to fix shelf life of vehicle is vested in the Central Government under Section 59 of the Act and this power cannot be usurped by the State Government by a via media and camouflage that power is being exercised with the object of fitness of the vehicles and their suitability of plying on short, medium and long routes keeping in mind the safety, comfort and convenience of passengers. The object of issuing the notification is a backdoor method of cutting down period of registration of a vehicle which is valid at the time of registration which has now been fixed at 15 years by the Central Government. By reducing that period and fixing their fitness or 4 suitability for grant of Stage Carriage permit is an exercise of legislative power which is not vested in the State Government.
7. The Court thereafter has been taken through Sections 65, 96 and 211 of the Act, rather extensively. Section 65 of the Act deals with the power of the State Government to make rules. Section 96 of the Act deals with the power of the State Government to make rules for the purpose of that Chapter and Section 211 of the Act deals with the power to levy fee.
8. At the very outset, the Court is of the opinion that none of the Sections which has been quoted in the Notification under challenge, gives power to the State to fix the life of the vehicle which is to be used for passenger transportation has been provided for. In other words, mere reference to Section 65, 96 and 211 of the Act which do not deal with the power of fixing the life or fitness of the vehicle, to that extent makes the notification vulnerable.
9. However, a wrong mentioning of a provision of law or rule does not make the Notification vulnerable by itself provided the State can establish that it had the requisite power and authority vested under the statute to issue such a notification.
10. Learned Additional Advocate General, representing the State of Chhattisgarh, after a laboured argument made at the Bar and after much deliberation submits that actually, the power which has been exercised by the State is under Section 96 where the power to make rules has been conferred upon the State Government for the purposes of this Chapter and this Chapter means Chapter V of the Act. Section 96 sub-section (1) no doubt confers power on the State Government to make rules for the purpose of carrying out the object of the provisions of this Chapter, but the same said Section 96(2) also states that without prejudice to the generality of the foregoing power, rules under this Section may be made with respect to all or any of the following matters, namely:- 5
96. Power of State Government to make rules for the purposes of this Chapter.--
(1) xxx (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 following matters, namely:--
(i) the period of appointment and the terms of appointment of and the conduct of business by Regional and State Transport Authorities and the reports to be furnished by them;
(ii) the conduct of business by any such authority in the absence of any member (including the Chairman) thereof and the nature of business which, the circumstances under which and the manner in which, business could be so conducted;
(iii) The conduct and hearing of appeals that may be preferred under this Chapter, the fees to be paid in respect of such appeals and the refund of such fees;
(iv) the forms to be used for the purposes of this Chapter, including the forms or permits;
(v) the issue of copies of permits in place of permits lost, destroyed or mutilated;
(vi) the documents, plates and marks to be carried by transport vehicles, the manner in which they are to be carried and the languages in which any such documents are to be expressed;
(vii) the fees to be paid in respect of applications for permits, duplicate permits and plates;
(viii) the exemption of prescribed person or prescribed classes of persons from payment of all or any or any portion of the fees payable under this Chapter;
(ix) the custody, production and cancellation on revocation or expiration of permits, and the return of permits which have been cancelled;
(x) the conditions subject to which, and the extent to which, a permit granted in another State shall be valid in the State without counter-signature;
(xi) the conditions subject to which, and the extent to which, a permit granted in one region shall be valid in another region within the State without counter- signature;
(xii) the conditions to be attached to permits for the purpose of giving effect to any agreement such as is referred to in clause (iii) of sub-section (1) of section 67;
(xiii) the authorities to whom, the time within which and the manner in which appeals may be made;6
(xiv) the construction and fittings of, and the equipment to be carried by, stage and contract carriages, whether generally or in specified areas;
(xv) the determination of the number of passengers a stage or contract carriage is adapted to carry and the number which may be carried;
(xvi) the conditions subject to which goods may be carried on stage and contract carriages partly or wholly in lieu of passengers;
(xvii) the safe custody and disposal of property left in a stage or contract carriage;
(xviii) regulating the painting or marking of transport vehicles and the display of advertising matter thereon, and in particular prohibiting the painting or marking of transport vehicles in such colour or manner as to induce any person to believe that the vehicle is used for the transport of mails; (xix) the conveyance in stage or contract carriages of corpses or persons suffering from any infectious or contagious disease or goods likely to cause discomfort or injury to passengers and the inspection and disinfection of such carriages if used for such purposes;
(xx) the provision of taxi meters on motor cabs requiring approval or standard types of taxi meters to be used and examining testing and sealing taxi meters;
(xxi) prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place; (xxii) the requirements which shall be complied with in the construction or use of any duly notified stand or halting place, including the provision of adequate equipment and facilities for the convenience of all users thereof; the fees, if any, which may be charged for the use of such facilities, the records which shall be maintained at such stands or places, the staff to be employed thereat, and the duties and conduct of such staff, and generally for maintaining such stands and places in a serviceable and clean condition;
(xxiii) the regulation of motor-cab ranks; (xxiv) requiring the owners of transport vehicles to notify any change of address or to report the failure of or damage to any vehicle used for the conveyance of passengers for hire or reward;7
(xxv) authorising specified persons to enter at all reasonable times and inspect all premises used by permit holders for the purposes of their business; (xxvi) requiring the person in charge of a stage carriage to carry any person tendering the legal or customary fare;
(xxvii) the conditions under which and the types of containers or vehicles in which animals or birds may be carried and the seasons during which animals or birds may or may not be carried;
(xxviii) the licensing of and the regulation of the conduct of agents or canvassers who engage in the sale of tickets for travel by public service vehicles or otherwise solicit customers for such vehicles;
(xxix) the licensing of agents engaged in the business of collecting for forwarding and distributing goods carried by goods carriages;
(xxx) the inspection of transport vehicles and their contents and of the permits relating to them;
(xxxi) the carriage of persons other than the driver in goods carriages;
(xxxii) the records to be maintained and the returns to be furnished by the owners of transport vehicles;
and (xxxiii) any other matter which is to be or may be prescribed.
Each of these sub-sections have been read out at the Bar. After exhausting the list, learned Additional Advocate General finds solace in clause (xxxiii) of Section 96(2) of the Act, which reads, any other matter which is to be or may be prescribed.
11. We have some difficulty in accepting the interpretation which has been sought to be given to Section 96(2)(xxxiii) for the reason that the rules of interpretation are well defined in this regard. If subjects or objects for which the rule making power can be exercised has been indicated extensively from clause
(i) to (xxxii), residuary power of any other matter will not include matters which are not in consonance with any of the entries made therein or contrary to what has been talked about in sub-section (2)(i) to (xxxii). The rule of interpretation of ejusdem generis will come into play and therefore, the State cannot take shelter of 8 clause (xxxiii) for the purpose of justifying amendment brought about in the Rules, 1994.
12. The alternative argument thereafter on behalf of the State is that the power can also be read under Section 115 of the Act. Section 115 reads as under:
"115. Power to restrict the use of vehicles.--The State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may by notification in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under section 116 at suitable places:
Provided that where any prohibition or restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction."
13. A fair and simple reading of Section 115 of the Act would indicate that these are temporary powers vested in the State Government for a limited object and purpose, mainly to deal with emergent situations which may emerge on a particular route, area or road or bridges which requires some kind of regulation. This limited power or emergent power for which provision has been made in Section 115 cannot be read or expanded to include fixing shelf life of vehicle for plying as a public vehicle on Stage Carriage.
14. Counsel for the Petitioners draw our attention to two decisions which have been rendered by Single Bench of two High Courts namely Calcutta High Court and Patna High Court. In a decision rendered in the case of Bengal Bus Syndicate & Others v. State of West Bengal & Others (AIR 2006 Cal 232), a similar challenge made before the High Court was upheld and the High Court categorically held that there is no legislative competence in the State Government 9 to decide the age of a vehicle. That power is vested in the Central Government and since the Central Government alone can issue notification fixing shelf life of vehicle which can ply on the road, the State Government by using such surreptitious method and methodology cannot do what is not vested in them. In other words, what cannot be done directly cannot be done indirectly is a principle well settled as legal proposition.
15. Similar view was also taken in the case of Rajesh Kumar & Others v. State of Bihar and Others (AIR 2009 Patna 98) where the learned Single Judge has again held that fixation of age limit of motor vehicles can only be done in exercise of power under Section 59 of the Act by the Central Government and the same cannot be usurped by the Regional Transport Authority even under the regulatory power. Any notification restricting shelf life of a vehicle to be used under any permit for a limited period or number of years has to be struck down as ultra vires.
16. Keeping in mind the legislative enactments and the scheme of things under the Act, the power which has been exercised by the State Government under the purported Sections 69, 96 and 211 of the Act in no manner confers any power upon the State Government to fix the shelf life of public transport vehicles which are used as Stage Carriage Permit. The Notifications, especially after the amendment issued on 08.02.2017 fixing the life to be 12 years across the board for all kinds of routes is nothing but an exercise of power which is not only a camouflage but is also an innovation of overcoming legislative competence which has been vested in the Central Government.
17. We therefore come to a conclusion that the State of Chhattisgarh cannot issue notifications curtailing life and validity of the Stage Permit Vehicles by bringing it lower than the certification of fitness which is issued at the time of 10 registration under Section 59 of the Act. Any changes with regard to the validity and permissibility of the vehicle which can be plied on the road can only be done by the Central Government and therefore, the notification dated 18.05.2011 contained in Annexure P/1 and notification dated 08.02.2017 contained in Annexure P/2 are struck down as ultra vires Section 59 of the Act.
18. Both the writ applications stand allowed.
Sd/- Sd/-
(Ajay Kumar Tripathi) (Prashant Kumar Mishra)
CHIEF JUSTICE JUDGE
Barve