Allahabad High Court
M/S Sangam Travels And 5 Others vs State Of U.P. And Another on 23 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 2945
Bench: Pankaj Mithal, Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. 29
Case :- WRIT - A No. - 13933 of 2019
Petitioner :- M/S Sangam Travels And 5 Others
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- Hanuman Prasad Dube,Vipul Dube
Counsel for Respondent :- C.S.C.
&
Case :- WRIT - A No. - 13936 of 2019
Petitioner :- Arun Sharma And 20 Others
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- Hanuman Prasad Dube,Vipul Dube
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Mithal,J.
Hon'ble Saral Srivastava,J.
1. Heard Sri Hanuman Prasad Dube, learned counsel for the petitioners and Sri Neeraj Tripathi, learned Additional Advocate General for the State of U.P.
2. These two writ petitions involve common question of law, therefore, are being decided by the common judgement.
3. The issue in the writ petitions is as to whether the State Government is empowered to fix the age limit of motor vehicles.
4. For convenience, the facts are being delineated from Writ C- No.13933 of 2019.
5. The petitioners are registered owners of public service vehicles. The vehicles of the petitioners are covered under the permit granted by the Transport Authorities and they are engaged by different schools being run in the Kanpur City under the agreements arrived at between them and the concerned school to carry the students from their homes to schools and back i.e. to and fro.
6. The state government in exercise of its power under Sections 28, 38, 65, 95, 96, 107, 111, 138, 176 and 213 of the Motor Vehicles Act, 1988 (Act No.59 of 1988) (hereinafter referred to as ''Act, 1988') read with Section 21 of the General Clauses Act, 1897 issued a notification dated 27 May, 2019 bringing about amendments in various rules of the U.P. Motor Vehicles Rules, 1998 by U.P. Motor vehicles (Twenty Sixth Amendment) Rules, 2019 (hereinafter referred to as 'amending rules, 2019'). The amending rule 2019 by which age limit of school vehicle is fixed reads as under:-
Age limit of School Vehicle "222 (D) (1) The educational institution bus (diesel and clean fuel driven) shall not be more than 15 years old from the date of initial registration.
(2) The diesel/CNG driven private bus (contract carriage) shall not be more than 10 years old from the date of initial registration.
(3) The school van, driven by diesel/petrol/CNG or any other clean fuel, shall not be more than 10 years old from the date of initial registration."
7. Petitioners are aggrieved by the reduction of the age limit of public service vehicles from 15 years to 10 years which has been introduced by the State Government in the Rule 222(D) of Rules, 1998 by Amending Rules, 2019.
8. The challenge to the amendment in Rule 222(D) of Rules 1998 has been laid by the petitioners on two grounds; firstly it amounts to hostile discrimination inasmuch as the age limit of the educational institution buses has been fixed as 15 years from the date of original registration whereas the age limit of private buses like buses owned by petitioners has been fixed 10 years from the date of initial registration. The second ground of attack is that the State Government is not competent to fix the age of the vehicles inasmuch as the field of fixation of age of a motor vehicle is with the Central Government in view of Section 59 of the Act, 1988 and, therefore, the Amending Rules, 2019 by which Rule 222(D) of Rules of 1998 has been amended is beyond the competence of the State Government.
9. Elaborating the arguments, learned counsel for the petitioners has contended that the petitioners buses are engaged in transporting the students from their homes to school and back to their homes and, therefore, nature of activity for which their buses are being used is similar and akin to the use of school buses owned by the schools. Thus, the different age fixed by the respondent-State with respect to buses owned by the educational institutions and private individuals is arbitrary and amounts to hostile discrimination, and thus being in violation of Article 14 of the Constitution of India deserves to be declared as ultra vires.
10. It is further contended that under Section 59 of the Act, 1988 Central Government is vested with the powers to fix the age limit of motor vehicles and there is no provision under the Act which contemplates the powers of the State Government to fix the age limit of motor vehicles. Therefore, amendment in Rules of 2019 is beyond the competence of State Government and thus, the same is liable to be declared as ultra vires. In support of the said contention, learned counsel for the petitioners has relied upon the judgement of Uttrakhand High Court in Special Appeal No.534 of 2015 (The State Transport Authority & Another Vs. Auto Rickshaw Vikram Union & Another) delivered on 04.07.2017.
11. Refuting the aforesaid submissions, learned Additional Advocate General contends that this Court by judgement dated 08.07.2019 in the case of Anurudh Kumar and Others Vs. State of U.P. & Others 2019(9) ADJ 79 (DB) has repelled the contention of private bus owners that amendment in Rule 222 (D) of Rules, 1988 is ultra vires to Article 14 of the Constitution of India, and thus, the argument of learned counsel for the petitioners with respect to hostile discrimination fixing the age limit of different motor vehicles owned by educational institutions and private individuals does not stand to merit.
12. As regards the second contention with respect to competence of State Government to fix the age of a motor vehicle by amending rules, 2019, learned Additional Advocate General would submit that under Section 65 (1) the Act of 1988, State Government is conferred with the powers to make rules for the purposes of carrying into effect the provisions of chapter VI of the Act, 1988 other than the matters specified in Section 64 of the Act, 1988. He submits that the Central Government has not issued any notification specifying the age limit of motor vehicles and further the power to fix the age limit of motor vehicles is not contemplated under Section 64 of the Act, 1988, therefore, State Government is well within its competence under Section 65(1) of the Act to frame rules to carry out the purposes of chapter VI of the Act which includes fixation of age limit of motor vehicles. The fixation of age limit of motor vehicles falling in different category as contemplated in the Act, 1988 is done by the State Government with an object to further the purpose of carrying into effect the provisions of chapter VI of the Act. He further submits that the power under Section 65 (1) of the Act, 1988 is general power and power under Section 65 (2) is only illustrative and does not restrict the power of the state government under Section 65(1) of the Act, 1988 to frame rules to carry out the purpose of chapter VI of the Act .
13. He submits that this Court in the case of Surise Public School through Caretaker and Others Vs. State of U.P. Through Principal Secretary and Others (Writ A- No.9950 of 2013) has held that the State Transport Authority has power to fix the age limit of a vehicle.
14. We have considered the rival submissions of the parties and perused the record.
15. The argument of the petitioners that that amendment in fixing the different age limit for the buses owned by the educational institutions and the buses owned by the private individuals amounts to hostile discrimination and is hit by Article 14 of the Constitution of India lacks merit in view of judgment of this court in the case of Anurudh Kumar and Others (supra) wherein this court has considered the similar argument and found no merit in it .
16. Before adverting to the second submission of the petitioners, it would be useful to have a glance at Sections 59, 64 and 65 of the Act, 1998:-
"59 Power to fix the age limit of motor vehicle. - (1) The Central Government may, having regard to the public safety, convenience and objects of this Act, by notification in the Official Gazette, specify the life of a motor vehicle reckoned from the date of its manufacture, after the expiry of which the motor vehicle shall not be deemed to comply with the requirements of this Act and the Rules made thereunder:
Provided that the Central Government may specify different ages for different classes or different types of motor vehicles.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may, having regard to the purpose of a motor vehicle, such as, display or use for the purposes of a demonstration in any exhibition, use for the purposes of technical research or taking part in a vintage car rally, by notification in the Official Gazette, exempt, by a general or special order, subject to such conditions as may be specified in such notification, any class or type of motor vehicle from the operation of sub-section (1) for the purpose to be stated in the notification.
(3) Notwithstanding anything contained in section 56, no prescribed authority or authorized testing station shall grant a certificate of fitness to a motor vehicle in contravention of the provisions of any notification issued under sub-section (1).
64. Power of the Central Government to make rules. - The Central Government may make rules to provide for all or any of the following matters, namely:-
(a) the period within which and the form in which an application shall be made and the documents, particulars and information it shall accompany under sub-section (1) of section 41;
(b) the form in which the certificate of registration shall be made and she particulars and information it shall contain and the manner in which it shall be issued under sub-section (3) of section 41;
(c) the form and manner in which the particulars of the certificate of registration shall be entered in the records of the registering authority under sub-section (5) of section 41;
(d) the manner in which and the form in which the registration mark, the letters and figures and other particulars referred to in sub-section (6) of section 41 shall be displayed and shown;
(e) the period within which and the form in which the application shall be made and the particulars and information it shall contain under sub-section(8) of section 41;
(f) the form in which the application referred to in sub-section (14) of section 41 shall be made, the particulars and information it shall contain and the fee to be charged;
(g) the from in which and the period within which the application referred to in sub-section (1) of section 47 shall be made and the particulars it shall contain;
(h) the form in which and the manner in which the application for "No Objection Certificate" shall be made under sub-section (1) of section 48 and the form of receipt to be issued under sub-section (2) of section 48;
(i) the matters that are to be complied with by an applicant before no objection certificate may be issued under section 48;
(j) the form in which the intimation of change of address shall be made under sub-section (1) of section 49 and the documents to be submitted alongwith the application;
(k) the form in which and the manner in which the intimation of transfer of ownership shall be made under sub-section (1) of section 50 or 87 under sub-section (2) of section 50 and the document to be submitted alongwith the application;
(l) the form in which the application under sub-section (2) or sub-section (3) of section 51 shall be made;
(m) the form in which the certificate of fitness shall be issued under sub-section (1) of section 56 and the particulars and information it shall contain;
(n) the period for which the certificate of fitness granted or renewed under section 56 shall be effective;
(o) the fees to be charged for the issue or renewal or alternation of certificates of registration, for making an entry regarding transfer of ownership on a certificate of registration, for making or cancelling an endorsement in respect of agreement of hire-purchase or lease or hypothecation on a certificate of registration, for certificates of fitness for registration marks, and for the examination or inspection of motor vehicle, and the refund of such fees;
(p) any other matter which is to be, or may be, prescribed by the Central Government.
65. Power of the State Government to make rules. - (1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter other than the matters specified in section 64.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for -
(a) 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);
(b) the appointment, functions and jurisdiction of registering and other prescribed authorities;
(c) the exemption of road-rollers, graders and other vehicles designed and used solely for the construction, repair and cleaning of roads from all or any of the provisions of this Chapter and the rules made thereunder and the conditions governing such exemption;
(d) the issue or renewal of certificate of registration and fitness and duplicates of such certificates to replace the certificates lost, destroyed or mutilated;
(e) the production of certificates of registration before the registering authority for the revision of entries therein of particulars relating to the gross vehicle weight;
(f) the temporary registration of motor vehicles, and the issue of temporary certificate of registration and marks;
(g) the manner in which the particulars referred to in sub-section (2) of section 58 and other prescribed particulars shall be exhibited;
(h) the exemption of prescribed persons or prescribed classes of persons from payment of all or any portion of the fees payable under this Chapter;
(i) the forms, other than those prescribed by the Central Government to be used for the purposes of this Chapter;
(j) the communication between registering authorities of particulars of certificates of registration and by owners of vehicles registered outside the State of particulars of such vehicles and of their registration;
(k) the amount or amounts under sub-section (13) of section 41 or sub-section (7) of section 47 or sub-section (4) of section 49 or sub-section (5) of section 50;
(l) the extension of the validity of certificate of fitness pending consideration of applications for their renewal;
(m)the extension from the provisions of this Chapter, and the conditions and fees for exemption, of motor vehicles in the possession of dealers;
(n) the form in which and the period within which the return under section 62 shall be sent;
(o) the manner in which the State Register of Motor Vehicles shall be maintained under section 63;
(p) any other matter which is to be or may be prescribed."
17. Section 59 (1) of the Act provides that the Central Government is empowered to fix age limit of vehicles reckoned from the date of its manufacture having regard to the public safety, convenience and object of the Act. Proviso to said section further provides that the Central Government may fix different ages for different classes or different types of motor vehicles.
18. The petitioners though in paragraph 6 of the writ petition have stated that the age limit of petitioners vehicles was fixed under the notification issued by the Central Government in exercise of powers conferred under Section 59 of the Act, 1998, but when the counsel for the petitioners was confronted to place the said notification on record, he admitted that in fact no such notification has been issued by the Central Government. However, he maintains that even if no such notification has been issued by the Central Government the field of fixing the age limit of vehicle is within the domain of the Central Government under Section 59(1) of the Act and not with the State Government.
19. A bare reading of Section 64 of the Act, 1988, extracted herein above, clearly shows that the said section does not envisage any provision which confers exclusive power upon the Central Government to make rules with respect to fixation of age of a motor vehicle.
20. The only rider which has been put upon the State Government to make rules under Section 65(1) of the Act, 1988 is that rule making power with respect to matters specified in Section 64 of the Act, 1988 is beyond the competence of the State Government otherwise it is empowered to make rules on all subjects for the purpose of carrying into effect the provisions of chapter VI of the Act,1988. The power of State Government under Section 65(1) is general in its terms and authorizes inter-alia of making or amending any rule in so far as it is necessary or expedient so to do for carrying into effect the provision of chapter VI of the Act, 1988. At this juncture, it would be apt to refer the two judgements of the Apex Court namely, Om Prakash and Others Vs. Union of India and Others 1970 (3) SCC 942 and Academy Nutrition Improvement and Others Vs. Union of India (2011) 8 SCC 274.
21. In the case of Om Prakash (supra) Apex Court had occasion to consider the powers of the Chief Settlement Commissioner under sub Section (1) of Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 to cancel the allotment of land made in favour of a person. Paragraph 6 of the judgement being relevant in the context of the present case is being extracted herein below:-
"6. It is therefore contended relying on Sub-section (2) that in as much as no fraud or false representation or concealment of any material fact has been alleged or proved in this case, the Chief Settlement Commissioner cannot exercise the revisionary power Under Section 24. This contention in our view has no validity. It is a well established proposition of law that where a specific power is conferred without prejudice to the generality of the general powers already specified, the particular power is only illustrative and does not in any way restrict the general power. The Federal Court had in Talpade's case indicated the contrary but the Privy Council in King Emperor v. Sibnath Banerjee Indian Appeals-Vol. 72 p. 241 observed at page 258 :
"Their Lordships are unable to agree with the learned Chief Justice of the Federal Court on his statement of the relative positions of Sub-sections 1 and 2 of Section 2 of the Defence of India Act, and Counsel for the respondents in the present appeal was unable to support that statement, or to maintain that Rule 26 was invalid. In the opinion of their Lordships, the function of Sub-section 2 is merely an illustrative one: the rule-making power is conferred by Sub-section 1, and "the rules" which are referred to in the opening sentence of Sub-section 2 are the rules which are authorised by, and made under, Sub-section 1; the provisions of Sub-section 2 are not restrictive of Sub-section 1, as, indeed is expressly stated by the words "without prejudice to the "generality of the powers conferred by Sub-section 1."
22. In the case of Academy Nutrition Improvement and Others (supra), the challenge to Rule 44-I inserted in the Prevention of Food Adulteration Rules 1955 was made by the petitioners. The Apex Court dealt with the validity of statutes delegating the powers of making rules. Paragraph 66 of the judgement relevant in the present case is being extracted herein below:-
"66. Statutes delegating the power to make rules follow a standard pattern. The relevant section would first contain a provision granting the power to make rules to the delegate in general terms, by using the words `to carry out the provisions of this Act' or `to carry out the purposes of this Act'. This is usually followed by another sub-section enumerating the matters/areas in regard to which specific power is delegated by using the words `in particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters." Interpreting such provisions, this Court in a number of decisions has held that where power is conferred to make subordinate legislation in general terms, the subsequent particularisation of the matters/topics has to be construed as merely illustrative and not limiting the scope of the general power. Consequently, even if the specific enumerated topics in section 23(1A) may not empower the Central Government to make the impugned rule (Rule 44-I), making of the Rule can be justified with reference to the general power conferred on the central government under section 23(1), provided the rule does not travel beyond the scope of the Act.
"But even a general power to make rules or regulations for carrying out or giving effect to the Act, is strictly ancillary in nature and cannot enable the authority on whom the power is conferred to extend the scope of general operation of the Act. Therefore, such a power "will not support attempts to widen the purposes of the Act, to add new and different means to carrying them out, to depart from or vary its terms."
23. It would not out of place to refer the judgement of Apex Court in the case of General Officer Commanding-in-Chief and Another Vs. Dr. Subhash Chandra Yadav and Another 1988 (2) SCC 351 wherein Apex Court has laid down the test when a rule can have the effect of a statutory provisions. Paragraph 14 of the judgement is extracted herein below:
"14. This contention is unsound. It is well settled that rules framed under the provisions of a statute form part of the statute. In other words, rules have statutory force. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void. The position remains the same even though sub-section (2) of section 281 of the Act has specifically provided that after the rules are framed and published they shall have effect as if enacted in the Act. In other words, in spite of the provision of sub-section (2) of section 281, any rule framed under the Cantonment Act has to fulfil the two conditions mentioned above for their validity. The observation of this Court in Jestamani v. Scindia Steam Navigation Company, [1961] 2 SCR 811, relied upon by Mr. Aggarwal, that a contract of service may be transferred by a statutory provision, does not at all help the appellants. There can be no doubt that a contract of service may be transferred by statutory provisions, but before a rule framed under a statute is regarded a statutory provision or a part of the statute, it must fulfil the above two conditions. Rule 5-C was framed by the Central Government in excess of its rule making power as contained in clause (c) of sub-section (2) of section 280 of the Cantonment Act before its amendment by the substitution of clause (c); it is, therefore, void. "
24. Keeping in view the principles laid down by the Apex Court in the judgement referred above regarding the validity of a rule, the Court now proceed to consider the arguments of learned counsel for the petitioners in respect of the competence of the State Government to amend Rule 222 (D). The petitioner does not dispute the fact that no notification fixing the age limit as contemplated under Section 59 (1) of the Act, 1988 has been issued by the Central Government. Section 64 (1) of the Act does not provide any provision from which it is explicit or it can be inferred that rule making power with respect to fixation of age is conferred upon the Central Government under said section .
25. Section 65(1) puts only rider upon the State Government not to make rules with respect to matters specified in Section 64. Thus, under Section 65(1) of the Act, 1988, the State Government is free to make any rule for the purpose of carrying into effect the provisions of chapter VI of the Act 1988 except the matters specified in Section 64. Further, the power under Section 65(1) is general power conferred upon the State Government to make rules and thus, the source of power making rules is derived from sub-Section 1 of Section 65, and sub-Section 2 merely provides illustration for the general power conferred by sub Section 1 as Sub-Section 2 of Section 65 of the Act, 1988 commences with the words ''without prejudice to the generality of the foregoing powers'. It is manifest that sub-Section 2 of Section 65 of the Act, 1988 confers no such fresh powers but is merely illustrative of the general powers conferred by sub-Section 1 of Section 65.
26. This Court in the case of Surise Public School (supra) has also held that the State Transport Authority is empowered to fix the age limit of the vehicle. Paragraphs 6 and 7 of the said judgement are being extracted herein below:-
"6. It is submitted by learned Standing Counsel, that in Mahraj Uddin's case all the aspects relating to the powers of the State Transport Authority fixing the age of the vehicles including State carriage, school buses, taxis and three wheelers was considered and while upholding the power of STA to fix the age of the vehicles and to put model condition in the permit, the decision of the STA dated 23.2.2010 was upheld. He submits that in the present case the vehicles are plying as school buses and for which there is no exemption. The school buses carrying children should strictly ensure to safety standard. He submits that the petitioners' vehicles are about more than 15 years' old and in view of the decision of the STA, no further permit shall be granted to such vehicles. Any relaxation will be hazardous to the safety of the children, who will be travelling in the school buses.
7. We are of the view, that the order dated 7.12.2012 in Omwati Sarswati Junior High School's case was passed without the benefit of the Division Bench judgment in Mahraj Uddin's case. We further find that no new ground has been taken nor there is any justification to allow the old vehicles to ply on the road. The decision of STA in this regard should not be lightly interfered."
27. It is worth mentioning that it is not the case of the petitioner in the writ petition that amendment in Rule 222 (D) does not further the object of Chapter VI of the Act and as the State Government is not empowered to bring the amendment in Rule 222D of Rules 1998 in exercise of power under Section 65 of the Act,1988. Thus, it can't be said that the object of bringing amendment in Rule 222 (D) is not to further the object of Act, 1988 more particularly chapter VI of the Act,1988.
28. The judgment of the Uttrakhand High Court in The State Transport Authority (Supra) does not help the petitioners for the simple reason that it has not considered Section 65(1) of the Act, 1988 which vest the state government with power to frame rules subject to the restriction put under Section 66(1) of the Act,1988.
29. Consequently, for the reasons given above, we do not find any substance in the argument of learned counsel for the petitioners that the State Government is not competent to amend Rule 222 (D) of Rules, 1998.
30. Thus, both the writ petitions lack merit and are dismissed. There shall be no order as to costs.
Order Date :- 23.9.2019 Sattyarth