Himachal Pradesh High Court
Virender Singh And Another vs State Of Hp And Others on 22 November, 2018
Bench: Surya Kant, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 619 of 2017.
Reserved on 05.11.2018 Decided on: 22.11.2018 Virender Singh and another ....Petitioners.
Versus State of HP and others ......Respondents.
Coram r to The Hon'ble Mr. Justice Surya Kant, Chief Justice. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes.
For the petitioners: M/s R.K. Kapoor and Kiran Dhiman, Advocates.
For the respondents: Mr.Ashok Sharma, Advocate General
with M/s J.K. Verma, Adarsh Sharma
and Ashwani Sharma, Additional
Advocate Generals.
Surya Kant, Chief Justice.
The petitioners are residents of Village Badarkha, Baghpat (UP) and Nehru Vihar, Delhi respectively. They have laid challenge to the Notification dated 4th August, 2008 (Annexure P1), issued by the State ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 2 of Himachal Pradesh in purported exercise of its powers under Section 115 of the Motor Vehicles Act, 1988 .
(hereinafter referred to as "the MV Act 1988").
2. Before scrutinizing the facts or legal provisions referred to by learned counsel for the parties any further, it will be useful to reproduce the contents of the Notification "NOTIFICATION.
r to dated 4th August, 2008, which read as follows:
The Governor, Himachal Pradesh in exercise of the powers conferred by Section 115 of the Motor Vehicles Act, 1988 (Act No. 59 of 1988) having regard to the road condition, safety of the passengers and convenience of the general public is pleased to prohibit the entry of "Sleeper Coaches" of the neighbouring States plying under various permit in the territory of the Himachal Pradesh which do not conform with the provision of Rule93 and 128 of the Central Motor Vehicles Rules 1989, with immediate effect.
By order Additional Chief Secretary (Transport) Government of Himachal Pradesh."
3. As averred by the petitioners, the aforementioned Notification is liable to be quashed as it ultra vires the provisions of the National Highways Act, 1956 (hereinafter referred to as "the 1956 Act), National Highways Authority of India Act, 1988 (hereinafter referred ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 3 to as "the NHAI Act 1988") and The Control of National Highways (Land and Traffic) Act, 2002 (hereinafter referred .
to as "the 2002 Act"). Additionally, the petitioners have averred that the impugned Notification violates Article 304, besides Articles 14, 19 (1) (d), 19 (1) (g), and 21 of the Constitution of India. A prayer to restrain the respondents from impounding the vehicles of the petitioners under Section 207 of the MV Act 1988 in furtherance of the impugned Notification has also been sought in conjunction with an additional direction that the respondents should not impede/prohibit the entry of the "Sleeper Coach" vehicles belonging to the petitioners in the State of Himachal Pradesh. The petitioners also seek to restrain the respondents from hindering the free flow of plying these vehicles on the National Highways.
4. The petitioners have further averred that as All India Tourist Permit Vehicles (which are essentially contract carriage vehicles), their "Sleeper Coaches" strictly observe all terms and conditions as they are plied on the ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 4 National Highways. Their "Sleeper Coaches" are booked to carry tourists for tourist/ religious destinations, namely, .
Manali, Shimla etc., and the vehicles are mostly plied on National Highways, including National Highway No.5, maintained by the Central Government or the National Highways Authority of India. It is also the case of petitioners that their vehicles do not ply on State Highways.
The petitioners posit that they have been granted All India Tourist Permits under Section 88 of the MV Act 1988, which are not required to be countersigned by the Regional Transport Authorities of the Regions except the Regional Transport Authority which has issued such permits.
5. The petitioners have relied upon subSection (9) of Section 88 of the MV Act 1988, which contains a non obstante Clause to the effect that subject to the Rules made by the Central Government under subSection (14), any State Transport Authority for the purpose of promoting tourism, may grant permit in respect of tourist vehicles valid for the whole of India, or in such contiguous States ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 5 not being less than three in number including the State in which the permit is issued as may be specified in such .
permit. The petitioners claim to have been issued All India Permit under subSection (9) of Section 88 of the MV Act 1988, and thus assert that they are entitled to ply their tourist vehicles in the whole of India notwithstanding the fact that the permit is not countersigned by the Regional Transport Authority of other Regions where their vehicles are plied.
6. The petitioners have further averred that they have been granted All India Tourist Permits by the respective State Transport Authorities under subSection (9) of Section 88 of the MV Act 1988 and they have been operating their tourist vehicles as per terms and conditions contained in the All India Tourist Permit. Their vehicles have a valid Registration Number and All India Tourist Permits are also valid up to January 2022 or so. The details of such vehicles are given in para 8 of the writ petition. The petitioners, however, allege that by virtue of the impugned ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 6 Notification dated 4th August, 2008, the State of Himachal Pradesh has banned/prohibited the entry of their vehicles .
carrying all India Tourist Permits and that the said Notification has been issued in a colourable exercise of powers under Section 115 of the MV Act 1988 read with Rules 93 and 128 of the Central Motor Vehicles Rules, 1989
7. to (hereinafter referred to as "the 1989 Rules").
The petitioners thus contend that what is expressly permitted under Section 88 (9) of the MV Act, 1988, namely, to ply a vehicle for tourists throughout the country for the purpose of tourism on the basis of an All India Permit, has been curtailed in every respect by the State of Himachal Pradesh by issuing the impugned Notification whereby entry of "Sleeper Coaches" of the neighbouring States has been banned in the State of Himachal Pradesh regardless of the fact that the said vehicles do not violate the provisions of Rules 93 or 128 of the 1989 Rules. It is claimed that the "Sleeper Coaches" are made for the convenience of the general publiccumtourists ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 7 as sometimes the tourists spend the whole night in transit, for India is a vast country with many tourist places and .
religious pilgrimages.
8. Learned counsel for the petitioners contended that the National Highways are covered under Union List 1, Entry Number 23, in the 7th Schedule of the Constitution incompetent to make any 'Law'.
r to of India and in respect thereto the State Government is
9. Mr. Kapoor, learned counsel for the petitioners, urged that Entry 23 in List 1 of the 7 th Schedule is referable to Article 246 (1) of the Constitution whereunder the Parliament alone has exclusive power to make laws with respect to any of the matters enumerated in List 1. Hence, any direct or indirect attempt by the State of Himachal Pradesh to usurp this power is in derogation of the constitutional mandate. Learned counsel further argued that the impugned Notification also impedes free trade and intercourse throughout the territory of India and is in total disregard to the guarantee of such freedom conferred under ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 8 Article 304 of the Constitution of India. He urged that Section 4 of the 1956 Act vests all National Highways in the .
Union, and as per Section 5 thereof, it is the responsibility of Central Government to develop and maintain the National Highways. The 1956 Act is a complete Code as it also contains provisions like Section 8B in relation to 'committing any mischief' and provides punishment for any act which renders a National Highway impassable or less safe for traveling or conveying property.
10. Learned counsel further argued on this premise that if "Sleeper Coaches" are found to have caused any danger to the free flow of traffic or the safety of National Highways, the law provides punitive action for it. Therefore also, the State Government cannot impose a blanket ban on the entry of "Sleeper Coaches" when the Prescribed Authority for National Highways has not found such vehicles to have caused any safety risk for traveling on National Highways. The power to make Rules under the National Highways Act is also conferred on the Central ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 9 Government under Section 9 of the 1956 Act and the State Government is totally alien to the Scheme of development, .
maintenance or repairs of National Highways. He, in particular, referred to the provisions of the 1988 Act, whereunder the Central Government is empowered to vest or entrust any National Highway in the National Highways Authority of India, constituted under Section 3 (3) thereof.
Section 19 (2) (d) of the aforesaid Act is relied upon to contend that one of the specific functions entrusted to the National Highways Authority is to "regulate and control the plying of vehicles on the highways vested in, or entrusted to, it for the proper management thereof."
11. Mr. Kapoor laid special emphasis on Section 35 of the 2002 Act which, according to him, is pari materia to Section 115 of the MV Act 1988 and whereunder the power to restrict the use of any type of vehicle on the National Highways is expressly conferred upon the National Highways Administration. Section 35 of the 2002 Act reads as follows:
::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 10"35. Power to restrict the use of vehicles.
If the Highway administration is satisfied that it is necessary .
in the interest of public safety or convenience, or because of the nature of any road or bridge so to do, it may, by notification in the Official Gazette, prohibit or restrict, subject to such exceptions or conditions as may be specified in the notification, the use of any highway or part thereof by a class or classes of traffic either generally or on specified occasion or time as specified in the notification and when such prohibition or restriction is imposed, the Highway Administration shall cause such traffic signs to be placed or erected at suitable places for the convenience of the traffic as may be prescribed:
PROVIDED that where any prohibition or restriction under this Section is to be remained for a period of one month or less, such prohibition or restriction may be imposed without issuing notification in the Official Gazette:
PROVIDED FURTHER that the prohibition or restriction imposed under the first proviso shall be published widely for the knowledge of the users by other possible means."
12. On a combined reading of the above referred provisions of different Statutes, learned counsel for the petitioners urged that the State Government has no authority whatsoever to impose any restriction on the plying of vehicles on National Highways and the impugned Notification being directly inimical to powers exercisable by the Central Government or the National Highways ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 11 Administration, unequivocally ultra vires the provisions of the Central Statute(s) and is thus unsustainable in law.
.
13. Lastly, the petitioners' counsel urged that the impugned Notification also imposes unreasonable, unguided and unbridled restrictions on the fundamental right of the petitioners to carry on any occupation, trade or business throughout the country as guaranteed under Article 19 (1)
(g) of the Constitution of India, and is hence liable to be declared unconstitutional.
14. Reliance has been placed upon Usmanbhai Dawoodbhai Memon and others versus State of Gujarat, reported in (1988) 2 SCC 271 to support the plea that where an enactment provides for a special procedure, it is that procedure alone that must be followed and not the one prescribed by the General Laws. Ethiopian Airlines versus Ganesh Narain Saboo, reported in (2011) 8 SCC 539 has been cited to reiterate the settled principle of statutory interpretation that the specific statutes that come later in time trump prior general statutes and that the ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 12 general provisions should always yield to specific provisions of Special Laws. In this context, it was pointed out that the .
Parliament while enacting Section 35 of the 2002 Act was fully aware of the existing statute, namely, Section 115 of the 1988 Act. In this regard, further reliance was placed on Ashoka Marketing Ltd. and another versus Punjab r to National Bank and others, reported in (1990) 4 SCC
406. Lastly, learned counsel for the petitioners pressed into aid Sarabjeet Rick Singh versus Union of India, reported in (2008) 2 SCC 417 to repeat his contention that Special Statute shall prevail over the provisions of General Statute. Hence, Section 115 of the 1988 Act must yield to give full effect to the provisions like Sections 5, 8B and 9 of the 1956 Act read with Section 35 of the 2002 Act as the latter is a Special Statute dealing with the National Highways.
15. State of Himachal Pradesh, on the other hand, has filed its written statement/reply justifying the issuance of the impugned Notification having regard to the road ::: Downloaded on - 26/11/2018 22:56:29 :::HCHP 13 conditions, safety of the passengers and convenience of the general public. It is maintained that under Section 115 of .
MV Act 1988, the Parliament has conferred such powers exclusively on the State Government. It is also averred that there is no provision of "Sleeper Coaches" under Rule 129 of the 1989 Rules for the grant of All India Tourist Permit.
There is no provision under the Act or the Rules to envisage the installation of "Sleepers in the buses plied under an All India Tourist Permit." The Rules prescribe the seats for seating as can be seen from Rule 10 of the Motor Vehicles (All India Permit for Tourist Transport Operators) Rules, 1993, (hereinafter referred to as "1993 Rules") as well as Rule 128 of the 1989 Rules.
16. Mr. Ashwani Sharma, learned Additional Advocate General pointedly referred to Section 115 of the MV Act 1988 and maintained that entry in the State of Himachal Pradesh of "Sleeper Coaches" of the neighbouring States plied under various permits, has been proscribed only in respect of such vehicles which do not conform with ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 14 the provisions of Rules 93 and 128 of the 1989 Rules. He relied upon Rule 128 of 1989 Rules which describes the .
seating capacity and seating arrangement of transport vehicles to which National Permit can be granted. The said Rule specifies that the seating layout shall be (two and two or one and two or one and one) on either side, all seats facing forward, with a clear gangway of at least 355 millimeters width at the centre. It also provides that frames shall be sturdy, properly finished and so mounted as to transfer the weight directly to the structural members of the framework. Rule 10 of 1993 Rules was also referred to in support of the plea that the seating capacity of a vehicle having All India Tourist Permit cannot be more than 39 seats, excluding driver and conductor. He thus urged that the Scheme of the Act refers to a vehicle having seats and seating capacity and there is no provision under the Act or the Rules, which expressly or by implication, permits to manufacture or ply "Sleeper Coaches". What has been therefore banned by the State of Himachal Pradesh is the ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 15 entry of such vehicles which are prohibited to be manufactured under the 1988 Act.
.
17. We have heard learned counsel for the parties at a considerable length. Having given our thoughtful consideration to the rival submissions, we do not find any merit in the challenge laid down on behalf of the petitioners,
18. to for the reasons recorded hereinafter.
Though the writ petition is liable to be dismissed at the outset on the ground of inordinate delay and laches, for the petitioners have challenged the Notification issued in the year 2008 by way of writ petition filed in the year 2017, nevertheless, we have heard the matter on merits owing to the fact that some substantial questions of law are sought to be raised in the instant writ petition.
19. There is no gainsaying that the subject matters, which are part of Union List 1 in 7 th Schedule of the Constitution, fall in the exclusive domain of the Parliament for the purpose of legislating. The powers of the State Legislature are obviously ousted and so would be the case when powers are ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 16 to be exercised by a Subordinate Legislation under an Act. In the event of any inconsistency having arisen between the Laws .
made by the Parliament and the Laws enacted by the Legislature of a State, the consequences as contemplated under Article 254 of the Constitution are inevitable and the Laws made by the Parliament, whether passed before or after the Laws made by the Legislature of the State, shall prevail and the Laws made by the Legislature of the State shall, to the extent of repugnancy, be void. We, however, do not find that any such situation has arisen in the instant case.
20. The MV Act, 1988 is a Central Act. The Parliament in its wisdom has conferred express powers through Section 115 of the said Act on the State Government to satisfy itself in the interest of public safety and convenience, or because of the nature of any road or bridge, to prohibit or restrict, subject to such exceptions and conditions as it may specify, the driving of motor vehicles of any specified class or description or the use of trailers either generally or in a 'specified area' or on a 'specified road'.
::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 1721. If one juxtaposes the Notification dated 4 th August, 2008, within the frame work of the powers conferred on a State .
Government under Section 115 of the Central Act, there remains no room of doubt that the State Government has acted well within the four corners of its power as it has prohibited the entries of only those "Sleeper Coaches" of neighbouring States, which do not conform to Rules 93 and 128 of the 1989 Rules.
22. A State is under Constitutional obligation in terms of Article 256 of the Constitution of India to give effect to the Laws made by the Parliament as also the directions issued by the Central Government from time to time.
23. MV Act 1988 being an Act of Parliament and the 1989 Rules having been framed by the Central Government, the State of Himachal Pradesh is otherwise obliged to give effect to the Act and the Rules in deference to its above stated Constitutional obligation. There is thus neither any usurp of powers of Central Government nor a case of repugnancy between the Laws made by the Parliament vizaviz an Act of ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 18 Legislature of the State. Arguments to this effect are totally misconceived and misdirected.
.
24. In M.C. Mehta versus Union of India and others (1997) 8 SCC 770, the Hon'ble Supreme Court, in the context of Legislative Policy of 1988 M.V. Act has held that:
"The existing provisions of the Motor Vehicles Act alone are sufficient to clothe the members of the police force and the transport authorities with ample powers to control and regulate the traffic in an appropriate manner so that no vehicle being used in a public place poses any danger to the public in any form. The requirement of maintaining the motor vehicles in the manner prescribed and its use if roadworthy in a manner which does not endanger the public, has to be ensured by the authorities and this is the aim of these provisions enacted in the Act. This conclusion can be drawn even without reference to the general powers available to the police officers under the Police Act and the Code of Criminal Procedure."
25. We may now advert to much reliance placed on behalf of the petitioners on certain provisions of the 1956 Act, MV Act, 1988 and 2002 Act. It will be useful to state at the outset that even in a situation of perceived conflict or headon ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 19 collision between the Central and State Laws, it is a well settled proposition that the Court would attempt to reconcile .
the alleged conflicting items, if need be, through a harmonious or reconciliatory construction of the provisions. While doing so, the Court should interpret the statute liberally and not technically or in a narrow spirit. The pith and substance of the Act and its reasonable intent would indeed be the guiding factors.
26. Keeping these principles in mind, it may be noticed that the 1956 Act has been enacted to declare certain Highways to be the National Highways and its Section 5 makes the Central Government responsible for the development and maintenance of National Highways though it may, by a Notification in the Official Gazette, delegate such function upon the Government of the State also, within which the National Highways situate. Section 8B of the 1956 Act enables the imposition of punishment which may include an imprisonment or fine or both, if a person commits mischief by doing an act which renders a National Highway impassable or less safe for traveling or conveying property. Section 8B of the ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 20 1956 Act comes into operation where damage is caused to the National Highways as a public property and something is done .
to make it unsafe for traveling. It does not apply in the context of the make of a vehicle or the manner in which passengers are asked to sit therein. To say it differently, the Parliament has consciously segregated the subject of manufacturing, make, size or design of a motor vehicle viza viz the construction, maintenance or safety of a National Highway and for these two subjects, two independent sets of Legislations have been enacted. The powers exercisable under provisions of the MV Act, 1988, including under Section 115 thereof are thus totally unconnected and independent of the powers which may be exercised by the Central Government, National Highways Authority of India or by the State Government, as the case may be, under the provisions of 1956 Act.
27. The 2002 Act too is an Act of Parliament and it has been enacted to provide for control of land within the National Highways, right of way and traffic moving on the National Highways and also for removal of unauthorized occupation ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 21 thereon. This Act has also been enacted with reference to the powers enjoyed upon by the Parliament under Entry 23 of .
Union List 1 of 7th Schedule.
28. It is true that Section 35 of the 2002 Act, referred to above and Section 115 of the MV Act 1988, are couched with somewhat similar language but the source to legislate the MV Act 1988 is altogether different, i.e., Entry 35 of the Concurrent ListIII.
29. These are two distinct and different fields of Legislation without any overlapping or multiplicity of powers exercisable thereunder. The scope of Section 35 of 2002 Act has to be therefore limited (even after giving the widest latitude) to the powers exercisable by National Highways Authority in respect of a National Highway only.
30. On the other hand, powers which can be invoked by a State Government under Section 115 of the MV Act 1988 are spread over to ban or prohibit driving of any specified motor vehicle either generally in a specified area or on a specified road.
::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 2231. While considering the scope of powers exercisable under Section 115 of the MV Act, 1988, the Bombay High .
Court in Zakir Hussain and others versus State of Maharashtra and another reported in AIR 2001 Bombay 21 held that:
"20. ..............The Competent Authority is the best Judge of the situation and circumstances and is expected to exercise the power under Section 115 of the Act in the interest of public safety or convenience etc. The jurisdiction of the Court, in such situation, can be extended only to find out whether there was material available before the Competent Authority in order to reach the requisite satisfaction contemplated under Section 115 of the Act for issuing prohibitory order or Notification. In our opinion, jurisdiction cannot be extended to find out adequacy or inadequacy of the material which warrants such exercise by the Competent Authority, which should to be left to the Competent Authority to act in the situation as per the Scheme of the section..........."
32. A Division Bench of Delhi High Court also examined the Policy Notification issued under Section 115 of the MV Act 1988 in Shweta Kapoor; Sarvesh Singh; Nipun ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 23 Malhotra; Anit Kumar Bahutay and others; Karuna Chhatwal versus Government of NCT of Delhi and .
another, reported in 2016 (1) RCR (Civ) 855, and it held that:
"13. The views on the efficacy of such government policy may differ, however, the question is whether the policy decision warrants interference by this Court in exercise of power of judicial review. The law is well settled that on matters affecting policy this Court will not interfere unless the policy is unconstitutional or contrary to statutory provisions or arbitrary or irrational or in abuse of power, since the policy decisions are taken based on expert knowledge and the Courts are normally not equipped to question the correctness of the same. The scope of judicial enquiry is therefore confined to the question whether the decision taken by the Government is against any statutory provision or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution of India."
33. The expression "area" has been defined in Section 2 (1) of MV Act 1988, which means "such area as the State Government may, having regard to the requirements of the provisions, specified by Notification in the Official Gazette."
Thus the area, as referred to under Section 115 of the MV Act 1988, may include the land or area where a National Highway, ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 24 State Highway or Local road has been constructed. No such power has been vested in the National Highways Authority .
under Section 35 of the 2002 Act, for the said power is restricted qua National Highways only. The Parliament in its wisdom has given wider powers to the State Government through Section 115 of MV Act 1988 for the purpose of banning or restricting any specified class or description of motor vehicles in a 'specified area' as compared to the corresponding powers conferred on the National Highways Authority only in respect of the National Highways.
34. This is neither a conflict of power nor overlapping of powers between the State Government and the National Highways Authority of India. While the Notification issued by the State Government shall apply to the specified area, even if a National Highway passes through it, the Notification or Order issued by the National Highways Authority under Section 35 of 2002 Act will be confined to National Highways only and not the other areas.
35. For the reasons aforestated, we do not find any merit in the writ petition which is accordingly dismissed.
::: Downloaded on - 26/11/2018 22:56:30 :::HCHP 2536. Pending applications, if any, also stand disposed of accordingly.
.
(Surya Kant) Chief Justice (Ajay Mohan Goel) Judge November 22, 2018 (cm Thakur ) ::: Downloaded on - 26/11/2018 22:56:30 :::HCHP