Uttarakhand High Court
The State Transport Authority And ... vs Auto Rickshaw Vikram Union And Another on 4 July, 2017
Equivalent citations: AIR 2018 (NOC) 29 (UTR.)
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Special Appeal No. 534 of 2015
The State Transport Authority & another ......Appellants
Versus
Auto Rickshaw Vikram Union & another ....... Respondents
Present: Mr. R.S. Bisht, Brief Holder for the State.
Mr. Narendra Bali, Advocate for the respondent no.1.
Coram:- Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on: 27.06.2017 Delivered on: 04.07.2017 Per - Hon'ble Sharad Kumar Sharma, J.
The Special Appeal has been preferred with a delay of 422 days'. The reason for delay as pleaded in the affidavit filed in support thereof is the procedural delay, which was caused by getting necessary permission from the competent authorities for preferring the special appeal. On the ground of limitation, the counsel for the respondent i.e. the writ petitioners do not seriously object the same, hence the delay in filing the appeal since has been sufficiently explained, and the same is condoned.
2. The appeal is admitted, and, with the consent of parties, the same is being heard on merits today itself and is being decided.
3. The appellant in the appeal is the State Transport Authority, as well as Regional Transport Authority, as created under statute. The petitioners in the Writ Petition No.170 of 2009, had questioned the validity of the order dated 18.11.2008, 2 passed by the Secretary, State Transport Authority, which has been constituted by the State Government, by issuing notification in the Official Gazette, by exercising powers under Section 68 of the Motor Vehicle Act.
4. By the impugned order as challenged in the writ petition, the Tribunal decided that the Auto Rickshaws, which are operated by diesel or petrol, will have a limited life as provided under the said order dated 18.11.2008.
5. The State Transport Authority vide its decision in the meeting held on 03.11.2008, in its agenda 7(1) took a decision that the Auto Rickshaws operated by petrol will have a life of 12 years and those operated by diesel will have a life of 10 years. The upper limit of the life of Auto Rickshaws in relation to the diesel and petrol is of 10 years and 12 years respectively. After 7 and 10 years respectively, there life could be extended by period of six months after its physical inspection, but to a maximum of 10 years and 12 years, as provided therein.
6. This order was put to challenge by the petitioners of the writ petition i.e. Auto Rickshaw Vikram Union, District Haridwar. While challenging the said order, the sole argument of the petitioners was confined to Section 59 of the Motor Vehicle Act, 1988 which reads as under:-
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 expiry of which the motor vehicle 3 shall not be deemed to comply with the requirement of this ace and the rules made there under:-
Provided that the Central Government may specify different ages for different classes or different types of motor vehicles.
7. On a simplicitor reading of Section 59, the power of fixing the age limit of motor vehicle has been vested with the Central Government having regard to public safety, convenience and object of the Act. The validity of the fitness certificate as contemplated under Rule 62 of the Motor Vehicle Rules, 1989 provides that the fitness certificate of transport vehicle granted under Section 56 shall be in Form 38. The said fitness certificate is granted annually to the new transport vehicles or on the renewal of certificate of fitness in respect of vehicles.
8. The writ petition came up for consideration before the learned Single Judge and the learned Single Judge, by the impugned order in appeal, had allowed the writ petition and quashed the order dated 18.11.2008, holding thereof that the State Transport Authority, has no authority to fix the upper age limit either diesel or petrol Auto Rickshaws. Against this order a review petition was filed by the respondent and the review petition was also dismissed by the learned Single Judge, vide its order dated 27.02.2015.
9. In the writ petition the challenge was to the direction issued by respondent no.2 on 18.11.2008. On its scrutiny it simply shows that, it was an administrative decision taken on the basis of the decision of the meeting dated 03.11.2008, by the State Transport Authority. Under the Central Motor Vehicle 4 Rules, 1989 which has been referred in the impugned order, it only contemplates a fixation of fee.
10. But if, Rule 88 of the Rules 1988 is taken into consideration, it yet again restricts the grant of permit beyond a certain age of the vehicle. The reference of age herein would be construed to be the age as specified by the Central Government in the Gazette notification issued under Section 59 of the Act. For the purposes of extension of the age, in the absence of their being any such Gazette notification as provided under Section 59, the same could not have been done by the impugned order in the writ petition without complying with the conditions of Section 59.
11. The Allahabad High Court in a judgment Radheysham Sharma vs. Regional Transport Authority, Kathgodam, Nainital reported in AIR 1991 Allahabad Page 158, in its para 11 and 12 quoted below:-
11. Section 59 of the new Act empowers the Central Government to specify the life span of motor vehicle reckoned from the date of manufacture after the expiry of which the vehicle shall not be deemed to comply with the requirements of the Act and Rules framed thereunder. The consequence of which is that after the expiry of the life of the vehicle in accordance with the notification of the Central Government the vehicle shall not be granted a fitness certificate and cannot be used for any purpose except those specified under sub-section (2) of Section 59, such as, for display, demonstration in exhibition, technical research or participation in vintage car rally. Section 59 as such, provides for fixation of the age of motor vehicle after which the vehicle is legally dead, incapable of being used for any purpose. In short, after the expiry of period specified by notification under Section 59 of the new Act, the vehicle reaches the end of life and is dead, incapable of being used in any public place. Rule 88 on the other hand does not provide for the life span of the vehicle and 5 its only effect is that a vehicle, which is more than nine years old, cannot be used under a national permit. Unlike Section 59 of the new Act. Rule 88 does not make a vehicle legally dead after the expiry of nine years and it continues to hold valid registration and fitness certificates and remains fit for being used in any public place for carriage of goods. This Rule, as mentioned above, does not purport to prescribe life span of motor vehicle but only prohibits its use after nine years under national permit.
12. But in the instant cases, as mentioned above Central Government by framing Rule 88 has not prescribed the age of a motor vehicle and by this Rule the Government has fixed only the model condition of nine years for a vehicle, which is to operate under a national permit. The word 'age' in Rule 88 has been used with reference to the user of a vehicle under a national permit. Section 59 does not deal with prescription of model condition and the Government was fully justified to provide that a vehicle under national permit should not be more than nine years old. As has been mentioned here-in-before, Rule 88 is like condition no.18, which was upheld in the two Supreme Court decisions of Subhash Chandra (AIR 1980 SC 800) and S.K. Bhatia (AIR 1983 SC 988) (supra). As the impugned rule does not deal with the matter provided for in Section 59, the aforesaid maxims cannot be applied in the instant cases.
12. It has held that the fixation of age limit of a vehicle could only be done by publication of Gazette notification and such power has been vested with the Central Government. On the expiry of the said period of life of the vehicle it shall not be granted a fitness certificate and cannot be used any purpose except those specified under Section 2 sub Section 59.
13. The Rajasthan High Court in a judgment Ishar vs. State of Rajasthan reported in AIR 1992 Rajasthan Page 40, in para 12, quoted below:-
12. Section 59 has a very wide purpose. The power has been conferred on the Central Government for keeping in view the public safety, convenience and object of this Act that it can specify the life of the motor vehicle reckoned from the 6 date of its manufacture. It further provides that the Central Government may prescribe different ages for different classes or different types of motor vehicles. It is an admitted position that no notification under Section 59 has been issued. It may also be relevant to mention here that there is no reference of Section 59 in sub-section (12) of Section 88 that the Central Government cannot frame the Rules prescribing the age limit for the goods carriage vehicles. As mentioned above, under sub-section (14) of Section 88, a power has been conferred on the Central Government to frame the Rules and in the purported exercise of that power for national goods permits, the Central Government has prescribed the age limit under Rule 88. Therefore, the non-issuance of separate notification under Section 59 would not prevent the Government from framing the Rules for public carrier. It may be relevant to mention here that the age limit has been prescribed for national public carrier and not for stage carriage or other kinds of vehicles. As mentioned above, while granting the national permit a general condition as contained in Section 84 has to be attached to all permits and one of the conditions is that it will comply with the requirements of the Act and the Rules framed thereuner and Rule 88 prescribes the age limit of the vehicle for a national permit. The life span of the vehicle has been prescribed is 9 years. Therefore, this condition has to be complied with for availing the national permit for goods carriage.
14. The power of providing the age limit of the vehicle is vested with the Central Government by a notification, but in the absence of the notification extending the life of the vehicle, its continuance of age limit would be subject to Rule 88 only. In the present case, the order impugned is not an order which in the absence of fixation of age limit, the continuance is contemplated under Rule 88. Hence, the learned Single Judge has rightly decided the matter and allowed the writ petition.
15. On a plain reading of the provisions contained under Chapter V of the Act, which deals with the Transport 7 Authorities, which includes within its ambit the State Transport Authority.
16. Meaning thereby, the State Transport Authority which is constituted under a notification as published in the Official Gazette is an authority, which controls or exercises its powers within the domain provided under Section 68 r/w the rules. The State Transport Authority under no set of circumstances can override the provisions of Section 59, which under the statute has been exclusively vested with the Central Government, obviously an authority superior to State Transport Authority, which cannot be usurped the power of superior entity. Thus, the order impugned in the writ petition suffered from apparent legal vices of lack of competence.
17. The language used by the legislature in Section 74 seeks to empower the Transport Authorities to grant or to refuse a contract carriage permit and also to impose such conditions and attach such conditions to the permits issued. It also empowers the Central Government to issue directions to the Transport Authorities to limit the number of permits to be issued in cities and towns having a population of not less than five lakhs. In case at hand, there is no such direction issued empowering the State Authorities to limit the number of permits to be issued and their age. The Hon'ble Apex Court in the case of State of Andhra Pradesh vs. B. Narulla Khan, reported in AIR 2004 SC Page 2413, has provided that the impact of Section 74 is only for the purposes to grant contract carriage permits.
818. The interplay of Section 59 vis-à-vis., Section 74 as pleaded by the appellant in the appeal will have no bearing on the powers conferred under Section 59 and on the Central Government to fix the age limit of the Motor Vehicle, which has relevance only for the purposes of providing the fitness of the vehicle, whereas Section 72 r/w Section 74 is the power which has been given to the Regional Transport Authority to grant a permit for stage carriage of a specified description subject to conditions imposed therein. Thus, the provisions of Section 59 and Section 72 r/w Section 74 operate in two different fields and the authority acting under both the provisions i.e. under Section 72 and 74 can only imposed conditions relevant there too for grant of permits.
19. The Division Bench of Bombay High Court in its judgment Shiv Adhar Yadav vs. The State of Maharashtra & others, reported in AIR 2009 NOC Page 2159 (Bombay) (DB) The powers under Section 74 (2)(3) of the Act are of a very large magnitude and empower the concerned authority having regard to the number of vehicles, road conditions and other relevant matters to impose any condition to limit the number of contract carriages gene- rally or of any specified type, and further empower the Regional Transport Authority, after giving notice, to vary the condition stated in the permit or attach to the permit further condition in terms of Section 74(2)(xiii) provides that the Competent Authority can impose any other condition which may be prescribed. These powers under which the State Government, Central Government or Regional Transport Authority operate are distinct. There can be a complete prohibition under Section 59 of the Act while renders a vehicles inoperatable, while under Sections 66 and 4 of the Act, it is limited to grant of a permit for a vehicle used as public transport or a contract carriage.
920. It has laid down that Section 59 is distinct and different than the power vested in the State Authority or a Government under Section 66 or Section 74 of the Act. The Patna High Court, in its judgment Rajesh Kumar & others vs. State of Bihar & others, reported in AIR 2009 Patna Page 98 in para 3, 4, 6 & 8 quoted below:-
3. Prior to the enactment and enforcement of Motor Vehicles Act, 1988 under the then existing Motor Vehicles Act and the Rules framed thereunder, there were no provisions with regard to age limit of motor vehicle. Such provisions appear to have been introduced.
Such a provision was introduced for the first time in the Act that is by the Motor Vehicles Act, 1988. I may notice two such provisions. One is Section 41(7) of the Motor Vehicles Act, 1988 and the other is Section 59 of the Motor Vehicles Act, 1988:
41. Registration, how to be made................
(7) A certificate of registration issued under sub-section(3), whether before or after the commencement of this Act, in respect of a motor vehicle, other than a transport vehicle, shall, subject to the provisions contained in this Act, be valid only for a period of fifteen years from the date of issue of such certificate and shall be renewable.
59. Power to fix 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 vehicle.
(2) Notwithstanding anything contained in sub- section (1), the Central Government may, having regard to the purpose of 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, 10 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 Sec.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).
4. A reference to the two provisions of the Act would show that Section 41(7) restricts the life of a motor vehicle other than transport vehicle to fifteen years from the date of original certificate of registration but at the same time makes it renewable. This provision clearly predicates a life span of the original certificate of registration of fifteen years but is renewable. Then we come to Section 59, Section 59 authorizes the Central Government to issue notification fixing the age limit considering the safety, convenience and the objects of the Act. Thus seen, the Legislature have authorized the Central Government and Central Government along to fix the age limit of a motor vehicle while fixing which the public safety, convenience and object of the Act has to be kept in mind Needless to say that inconvenicence because of age or pollution is considerations which squarely fall within this Section and are matters relevant for action to be taken by the Central Government.
6. Thus seen what was delegated exclusively by the Legislature to the Central Government cannot be usurped by the Regional Authority even under regulatory power. That is not what the legislature contemplated. Thus, in my view learned counsel for the petitioners is correct that such a decision was incompetently taken by the Regional Transport Authority. He further submits and rightly so in my view that the public carriage motor vehicles are subject to grant of certificate of fitness which is valid for one year. They are, thus, liable to be tested every year for its raodworthiness which includes its pollution emission standards. If it is otherwise fit to be certified as roadworthy then merely because it is fifteen years old or more cannot make it a piece of junk.
8. In view of the facts aforesaid, the decision of the Regional Transport Authority restricting the life of vehicles to be used under any permit to fifteen years cannot be sustained in law and has to be set aside and is set aside accordingly. The consequence would be that 11 petitioner's permit could not have been cancelled on the ground that they had not substituted their vehicle with a newer vehicle.
21. It has laid down the fixation of age limit of motor vehicle, the power is vested with the Central Government, and the said power cannot be usurped by the Regional Transport Authority even under regulatory powers. The decision of the Regional Transport Authority restricting life of the vehicle to be used under any permit would be illegal, as it would be amounting to overriding the provisions of the Act.
22. In the appeal, the appellant had raised the grounds to the effect that in view of Section 74(2)(IX)(b) of the Motor Vehicle Act, 1988, it empowers the Regional Transport Authority to fix the age of the vehicle. The interpretation as argued and pressed by the appellant is not acceptable by this Court. Section 74 of the Act, which constitutes to be the part of Chapter V, is under the main head of Control of Transport Vehicles. The appellant while stressing upon Section 74 sub- section 2 (IX) (b) had not taken note of the fact that the principal Section lays down the stipulations to be followed for the purposes of grant of contract carriage permits only. This Section in itself does not confer any right on the State Transport Authority or Regional Transport Authority to vary or specify the age of the vehicles in contravention to the provisions contained under Section 59. Thus, since the intention of legislature for Section 74 being absolutely divergent to the provisions of Section 59, as both sections being independent have different object to attain. Section 74 will not come to rescue to the appellant and has been wrongly attracted, for challenging impugned order.
1223. Another ground which the appellant has tried to harp upon is the impact of Section 68 sub Section 4. This argument too is unsustainable. Sub Section 4 of Section 68 cannot be read independently to the principal provisions of Section 68. This provision is only a procedural law and not a substantive law. It only postulates as to the manner in which the State Transport Authority, will exercise the powers subject to the conditions and directions issued by the Regional Transport Authority. This Section independently, yet again does not take away the effect of Section 59 of the Act, which is a power exclusively granted to the Central Government.
24. Thus, both the arguments of the appellant on Section 74 (2) (IX)(b) of the Motor Vehicle Act and Section 68 (4) will not be applicable..
25. There is another aspect of the matter. Section 68 numerates the manner in which the Regional Transport Authority, State Authority or other parties under the Act would exercise the powers and perform their functions specified under the Act. The Hon'ble Apex Court in Gazraj Singh vs. State Transport Appellate Tribunal, reported in AIR 1997 SCC Page 412 deals with the power conferred to the Regional Transport Authority as created under Section 68 to be exercised within the performances empowers has spelled out in the act itself. The State Transport Authority which is created under the statute cannot widen its powers beyond what has been conferred under the Act.
26. The petitioner has referred that in view of Section 68 sub Section 3, it only creates an obligation on the State 13 Transport Authority to give effect to the directions as issued under Section 67 to the State Transport Authority. The State Transport Authority on receipt of such directions given under Section 67 has to perform an exercise and discharge the powers and functions specified therein.
27. The aforesaid theory of the purpose of Section 68 sub Section 3, has been dealt by the Kerala High Court in a judgment of Quilon District Private Bus Association vs. State of Kerala, reported in AIR 1996 Kerala Page 104 in its para 14 quoted below:-
14. The matters can be looked up yet from another angle. Section 68 deals with the function for the transport authorities and in regard thereto more especially Section 68(3) enacts that the State Transport Authority and every Regional Transport Authority is obliged to give effect to directions issued under Section 67 and has to perform exercise and discharge the powers and functions specified herein. These exercise and discharge of the functions is subject to such directions and save as otherwise provided by or under the Act. In the context Section 68(3)(c) relates to the settlement of disputes and decide all matters on which there are differences of opinion between the Regional Transport Authority and it is in this context that we find the enactment of Section 68(3)(ca) with regard to the formulation of routes for plying stage carriages by the Government. On principles of legislation the fact that Section 68(3)(ca) appears after Section 68(3)(c) would have to be understood to enact all matters covered by Section 68(3)(ca) of the Act. The said provision cannot be read either in isolation or also independent of Section 68(3)(c) of the Act and would have to be understood on interpretation to have been enacted in the matter of settlement of dispute and decision in regard thereto relating to differences of opinion between the Regional Transport Authority. The expression "save as otherwise provided by or under the Act" and the fact that Section 68(3)(ca) appears as qualifying the Section 68(c) of the Act would have to be understood and construed in a harmonious manner so 14 that the position is not reduced to a nullity. Therefore apart from the position that this is in the nature of a direction with reference to a situation of differences of opinion, the provision also will have to be read to amplify the enactment in Section 68(3)(c) of the Act only.
28. The aforesaid judgment deals with the expression "save as otherwise provided by or under the Act" and the fact that Section 68(3) appears as qualifying the Section 68(c), it would have to be understood and construed in a harmonious manner, so that the provision is not reduced to a nullity. Hence, it is only procedural in nature.
29. The contention of the appellant for attracting sub Section 4 of Section 68 is not an independent provision, it is subject to the provision, of sub Section 3 or Section 68, which provides the modalities in which the directions issued under Section 67 by the Regional Transport Authority, has to be complied with by the State Transport Authority. Yet again, this preposition will not fulfill, under Section 59 of the Act. Since, the legislature in its wisdom is quite clear that the power of fixing the age of the vehicles, since under the statues has been vested with the Central Government, the judgment under challenge in appeal for the aforesaid reason do not suffer from any apparent legal error, thus the appeal fails and is dismissed with cost.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 04.07.2017 A.kaur