K. G. JAGANNATH v. STATE OF MYSORE — 1971 DIGILAW 142 (KAR)

GOVINDA BHAT, J. ( 1 ) THE petitioner who is a stage carriage operator has challenged in this writ petition the validity of Rule 216 (2) of the Mysore Motor Vehicles rules, 1963, hereinafter called the "rules" on two grounds: (1) that it is ultra-vires of S. 70 of the Motor Vehicles Act, 1939, hereinafter called the "act"; and' (2) that it violates the fundamental rights guaranteed under Art. 19 (1) (g) of the Constitution of India and therefore void. Rule 216 as it stood prior to its substitution by Notification No. GSR 360 dated 7th October, 1969 (HD 42 TMR 68) had provided only for limiting the maximum seating accommodation of public service vehicles otner than motor cabs. Rule 216 as substituted by the said Notification reads as follows: "216, LIMIT Or SEATING CAPACITY:- " (1) Subject to the provisions cf Rule 214 regarding seating accommodation, the number of passengers excluding the driver and conductor that a Public Service Vehicle other than a Moter Cab, may be permitted to carry, shall not exceed the number determined by dividing by 59 Kilograms the difference in Kilograms between the registered laden weight less 109 Kilograms and the undaden weight of the vehicle. (2) The minimum seating capacity of the Public service Vehicle shall be directly proportionate to the wheel base of the vehicle. In all Public Service Vehicles other than motor cabs the minimum number of seats to be provided shall be as specified in column (2) of the Table below: provided that the operator may increase the capacity consistent with the other rules relating to seating capacity and with due regard to the type of the chassis on which the body is fitted: - TABLE Wheel base No. of Seats (Minimum seating capacity) (1) (2) 254 to 293 cm 16 294 to 305 cm 20 306 to 343 cm 29 344 to 407 cm 30 408 to 432 cm 35 433 to 496 cm 45 497 to 534 cm 50 above 535 cm 35 (3) Nothing in sub-rule (2) shall apply to, (i) stage carriages proposed to be operated exclusively in towns and cities; and (ii) stage carriages registered prior to the coming into force of the Mysore Motor Vehicles (V Amendment) Rules, 1969. Provided that when the body of a stage carriage specified in item (ii) is reconstructed, the seats shall be so arranged as to face the front and maximum number of seats to the satisfaction of the Registering Authority, shall be provided. " sub-rule (1) provides for limiting the maximum seating accommodation and that sub-rule has not been challenged before us. What has been challenged is sub-rule (2) which fixes the minimum number of seats to be provided in public service vehicles on the basis of the wheel base of their chassis. Sub-rule (3) exempts stage carriages proposed to be operated exclusively in towns and cities and stage carriages registered prior to the coming into force of the Mysore Motor Vehicles (V Amendment) Rules, 1969, from the operation of sub-rule (2 ). ( 2 ) THE first question is whether the impugned rule is beyond the rule making authority of the State Government as contended by the learned counsel for the petitioner. Chapter V of the Act has made provision for construction, equipment and maintenance of motor vehicles. S. 70 (1) of the Act which comes under Chapter V confers on a State Government a general power to make rules regarding the construction, equipment and maintenance of motor vehicles. Clause (b) of sub-sec. (2) of S. 70 states that Rules made under S. 70 may provide for regulation of seating arrangements in public service vehicles. The power conferred on a State government under S. 70 for regulating the construction of public service vehicles is very wide. It was not contended before us that under the Act, a State Government has no power to limit the maximum number of seats in public service vehicles. What has been sought to be done by the impugned sub-rule is the regulation of construction of public service vehicles and particularly their seating arrangements and therefore the impugned sub-rule, in our opinion, is not ultra vires of the Act. ( 3 ) THE main question however is whether the impugned sub-rule is a reasonable restriction imposed in the interest of the general public so aa not to be violative of the freedom guaranteed under Art. 19 (1) (g) of the constitution which guarantees the freedom to practise any profession, or to carry on any occupation, trade or business. ( 3 ) THE main question however is whether the impugned sub-rule is a reasonable restriction imposed in the interest of the general public so aa not to be violative of the freedom guaranteed under Art. 19 (1) (g) of the constitution which guarantees the freedom to practise any profession, or to carry on any occupation, trade or business. The State, however, may make any law imposing in the interest of general public reasonable restrictions on the exercise of the right conferred under Art. 19 (1) (g) No abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The test of reasonableness depends on the nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, and the prevailing conditions at that time. All these factors should enter into consideration while deciding the question of the reasonableness of the restrictions when the matter comes before the Court. Vide State of Madras v. V. G. Row, AIR. 1952 SC. 196. In Chintaman Rao v. State of Madhya Pradesh, AIR. 1951 SC. 118. Mahajan, J. , as he then was, said that reasonable restriction means:"that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in art. 19 (1) (g) and the social control permitted by clause (6) of Art. 19, it must be held to be wanting in that quality. " ( 4 ) APPLYING the above principles to the facts and circumstances of the case we have to test the reasonableness of the impugned sub-rule. The petitioner holds seven permits for operating stage carriages along the several routes mentioned in paragraph (2) of his additional affidavit. " ( 4 ) APPLYING the above principles to the facts and circumstances of the case we have to test the reasonableness of the impugned sub-rule. The petitioner holds seven permits for operating stage carriages along the several routes mentioned in paragraph (2) of his additional affidavit. Under the conditions of the permits granted, the seating capacity of the stage-carriages in respect of four permits has been fixed at 30 besides the driver and the conductor; in respect of two permits the seating capacity of each vehicle is 33; and in respect of one permit the seating capacity is only 25. The petitioner has alleged that he wants to replace some of his vehicles as they are old models of the year 1960 and 1961. His permit for the route Dodballapur to Tumkur is valid upto 30-10-1975 and the vehicle that he is operating on the said route is a 1960 model. Under the conditions of the permit which he holds the seating capacity of the vehicle is 30 plus 2. With a view to replace the said vehicle the petitioner purchased a Leyland vehicle bearing registration number MYK. 4526 which had been registered with a seating capacity of 40 plus 2. On 2-11-1970 the petitioner applied to the Regional Transport Officer, Bangalore Region, (Respondent No. 2) for transfer of ownership and for permission to alter the seating capacity from 40 plus 2 to 30 plus 2. The second respondent by his order dt. 3-11-1970 rejected the request for alteration of the seating capacity apparently relying on the impugned sub-rule. On 16-12-1970 the petitioner preferred the above writ petition challenging the validity of rule 216 (2) of the Rules and for a writ in the nature of mandamus directing the second respondent to grant permission for alteration of the seating capacity of the stage carriage MYK. 4526 as prayed for in his application. ( 5 ) THE petitioner contends that the impugned sub-rule imposes an unreasonable restriction on his fundamental right to carry on his trade or business as a stage carriage operator, that the real object or purpose of the rule is not making provision for the better convenience and comfort of the travelling public, but is to exact more tax from stage carriage operators by indirectly compelling them to increase the number of seats in their vehicles. It is further contended that the wheel base of the smallest bus chassis manufactured in India is 165 inches or 419 centimetres, that under Rule 216 (2) the minimum number of seats to be provided in a vehicle with a wheel base of 419 centimetres is 35. Therefore it is alleged that it is impossible for the petitioner to replace any of his existing vehicles without in creasing the number of seats under the existing permits and the number of seats could be increased only by obtaining variation of the conditions of the permits to which other operators may object. It is further alleged that there is no need for increasing the number of seats for his vehicles as there is not adequate number of passengers and that if he is compelled by reason of the impugned Rule to increase the number of seats, he will be burdened with additional taxes. For all these reasons it is contended that the impugned Rule is violative of Art. 19 (1) (g) of the Constitution. There was no provision in the Rule prior to 7-10-1969 fixing the minimum number of seats to be provided in a Public Service Vehicle. We have been told by the learned Counsel for the petitioner and the learned High Court Government Pleader that to the best of their information no other State except Kerala has made a rule similar to the impugned Rule. According to the stand taken by the State, the impugned Rule was framed to eliminate the evil of stage-carriage operators carrying passengers in excess of the seating capacity specified in the registration certificate and the permit, to the serious inconvenience and discomfort of the travelling public, in addition to causing loss of revenue to the State. Vide para 5 of the counter affidavit filed by Sri K. M. Ramaswamy, Headquarters assistant to the Transport Commissioner in Mysore. It was however rightly conceded by the learned High Court Government Pleader in the course of his arguments that the impugned Rule cannot altogether eliminate the evil of overloading of passengers. On behalf of the petitioner, it was submitted that there is adequate provision in the Act to check the carrying of passengers in excess of the permitted number. It was however rightly conceded by the learned High Court Government Pleader in the course of his arguments that the impugned Rule cannot altogether eliminate the evil of overloading of passengers. On behalf of the petitioner, it was submitted that there is adequate provision in the Act to check the carrying of passengers in excess of the permitted number. The maximum number of passengers that may be carried in any Public Service Vehicle is one of the conditions of the permit under S. 48 (3) (vi) of the Act. Form no. 58 prescribed under the Rules shows that the permit should provide for the maximum number of passengers to be carried seated and the maximum number of passengers to be carried standing in a Public Service Vehicle. S. 60 of the Act provides that the permit may be cancelled or suspended for breach of any condition attached to it. S. 123 of the Act provides for prosecution and punishment for contravention of any condition of the permit. ( 6 ) THE Act has made, in our opinion, adequate provision to effectively deal and check the evil of overloading passengers in Public service Vehicles. If the evil exists on a large scale or has grown significantly it is not for want of adequate provision in the Act to check the evil but may be ascribed to the deficiencies in the enforcement machinery. Instead of attempting to strictly enforce the provisions of the Act and check the evil of overloading of passengers, the State has come forward with a novel and uncommon measure. We are aware of limiting the maximum number of seats in railway carriages, taxies, steamers, boats, aeroplanes etc. , for the safety and convenience of passengers. So also there are regulations made for limiting the maximum number of seats in cinema houses and other places of public entertainment; but we are unaware of any regulatory measure to provide a minimum number of seats in public conveyances or places of public entertainmet. In view of the uncommon character of the regulation, the Court has to be satisfied that it is reasonable in public interest. In view of the uncommon character of the regulation, the Court has to be satisfied that it is reasonable in public interest. ( 7 ) IT was contended by the learned counsel for the petitioner that the minimum number of seats required to be provided under the impugned sub-rule is rather high and that in some cases there is very little or no margin between the maximum fixed under sub-rule (1) and the minimum fixed under sub-rule (2) and that if sub-rule (2) is enforced, the operator has to contravene Rule 214 which makes provision for the minimum space to be provided for each seat. The parties have not placed reliable data either for acceptance or rejection of these contentions and therefore we do not express any opinion on these contentions. The petitioner as well as the State have furnished the particulars of bus chassis manufactured in India. ( 8 ) THERE are four manufacturers. The particulars of wheel bases of different bus chassis manufactured by different manufacturers and the minimum number of seats required to be provided under Rule 216 (2) can be seen from the following Table supplied by the learned counsel for the parties; Name Wheel Base in inches cms. Minimum number of seats to be provided under Rule 216 (2) Hindusthan 179 455 45 ,, 216 549 55 Tata Mercedes 166 422 35 ,, 190 482 45 ,, 205 520 50 Fargo 165 419 35 ,, 185 469 45 ,, 212 538 55 Leyland 163 414 35 ,, 176 447 45 ,, 210 533 50 ( 9 ) IT will be seen from the above tabular statement that the smallest bus chassis available in the market are; (1) Leyland of the wheel base of 414 centimetres, (2) Fargo of the wheel base of 419 centimetres and (3) Tata mercedes with a wheel base of 422 centimetres. If the impugned Rule is enforced the smallest vehicles available in the Indian Market are required to provide! a minimum number of 35 seats. If any one wants to put a vehicle with a seating capacity of less than 35, he cannot obtain such a vehicle in India. If any citizen wants to operate a public service vehicle in mysore State, he has to put a vehicle with the seating capacity of 35 or above. a minimum number of 35 seats. If any one wants to put a vehicle with a seating capacity of less than 35, he cannot obtain such a vehicle in India. If any citizen wants to operate a public service vehicle in mysore State, he has to put a vehicle with the seating capacity of 35 or above. The existing permit holders like the petitioner if they want to replace their old vehicles, have to either stop their business or increase the seating capacity of the vehicles after obtaining variation of the conditions of their permits. Even where there is not adequate number of passengers to provide stage carriages with a seating capacity of 35 and above, the operators have to put vehicles with larger seating capacity. Then they have to bear the additional burden of taxation under the Mysore motor Vehicles (Taxation on Passengers and Goods) Act, 1961 (Mysore act No. 10 of 1961 ). ( 10 ) ALTHOUGH under the conditions of his existing permits, the petitioner has a right to carry on his trade according to the conditions of his permits, he is indirectly prevented from doing so by reason of the impugned Rule. Under S. 59 (2) of the Act the petitioner is entitled with the permission of the authority granting permit to replace any vehicle of the same nature. It is clear that if the impugned sub-rule is enforced, the petitioner cannot replace any new vehicles with seating capacities in accordance with the conditions of his permits. It was however contended by the learned high Court Govt. Pleader that S. 59 (2) of the Act hts been amended by central Act No. 56 of 1969 on 2-3-1970 and it is now permissible for the stage carriage operators to replace an existing vehicle of smaller seating capacity with a larger seating capacity vehicle. Sub-Section (2) of S. 59 before the amendment reads thus:"59 (2 ). The holder of a permit may with permission of the authority by which the permit was granted, replace by another vehicle of the same nature and capacity any vehicle covered by the permit". ( 11 ) BY the amending Act No. 56 of 1969 the word 'capacity' has been deleted. The holder of a permit may with permission of the authority by which the permit was granted, replace by another vehicle of the same nature and capacity any vehicle covered by the permit". ( 11 ) BY the amending Act No. 56 of 1969 the word 'capacity' has been deleted. The effect of the said amendment according to the learned High Court government Pleader is that the holder of a permit, with the permission of the authoriy which had granted the permit, may replace another vehicle of the same nature with even a higher seating capacity and that the only condition of replacement is that the stage-carriage could be replaced only by a stage-carriage. In our opinion the deletion of the word 'capacity' in sub-section (2) of S. 59 has not made any material alteration in the law. As stated earlier the number of passengers permitted to be carried in a stage-carriage is a condition of the permit under S. 48 (3) (vi) of the Act. Clause (xxi) of sub-section (3) of S. 48 provides that the conditions of the permit may be varied by the Regional Transport Officer after giving notice of not less than one month. When the number of passengers that may be carried in any stage-carriage is a condition of the permit, the said condition can be varied only in accordance with the provisions of S. 48 (3) (xxi ). Before according variations of the condition of the permit, the regional Transport Officer has to follow the procedure prescribed under the Act. Any other operator on the route that may be adversely affected by the variation is entitled to object to the grant of variation. The regional Transport Officer is required to consider those objections before granting variation of the conditions of a permit. If the argument of the learned High Court Government Pleader is correct any permit holder by replacing his vehicle with another vehicle of a larger seating capacity may prejudicially affect the rights of the other operators on the same route. The contention of the learned High Court Government Pleader in our opinion is clearly untenable being opposed to the scheme of the Act. ( 12 ) THE petitioner cannot be compelled to increase the number of seats attached as condition of his permits. The contention of the learned High Court Government Pleader in our opinion is clearly untenable being opposed to the scheme of the Act. ( 12 ) THE petitioner cannot be compelled to increase the number of seats attached as condition of his permits. The number of seats in respect of each of the permits was fixed at the time of the grant or issue of the permits. The effect of the impugned Rule is that he shall increase the number of seats when he wants to replace his old vehicles and bear the burden of additional taxation. The State while making the impugned Rule, in our opinion, has not taken into account the prevailing conditions in the country with regard to the manufacture and availability of bus chassis. It has also not bestowed the necessary care and deliberation while framing the rule. The State has not considered the case of luxury Coaches and treated all Public Service Vehicles alike. The case of the petitioner in WP No. 4814 of 1970 which was heard along with this Writ Petition furnishes the instance of a contract carriage operator who wants to run a Luxury Coach from Mangalore to Bombay. ( 13 ) HE proposed to construct the body on a Chassis having a wheel base of 205 inches with push back seats, fans, arm rests for each passenger and more leg space with a seating capacity of 32. Under the impugned Rule, a vehicle with a wheel base of 205 inches is required to provide a minimum number of 50 seats. Therefore, the request for construction of a luxury coach was rejected. That Luxury Coaches cannot be provided if the impugned Rule is enforced is virtuallv conceded. Therefore, in paragraph 8 of the counter affidavit filed on behalf of the State, it is stated that if the petitioner intends to construct Luxury Coaches, it is open to him to move the Government for exemption under Rule 218 which will be considered on its own merits. The grant of exemption cannot be claimed as a matter of right. It would depend on the discretion of the Government. ( 14 ) THE fact that Luxury Coaches have not been exempted as in the case of a stage-carriage proposed to be operated exclusively in Cities and Towns, demonstrates that the State has not bestowed sufficient care and deliberation when making the Rules. It would depend on the discretion of the Government. ( 14 ) THE fact that Luxury Coaches have not been exempted as in the case of a stage-carriage proposed to be operated exclusively in Cities and Towns, demonstrates that the State has not bestowed sufficient care and deliberation when making the Rules. Legislation which arbitrarily or excessively invades the rights cannot be said to contain the quality of reasonableness. Therefore, we are of the opinion that the restrictions imposed by the impugned sub-rule cannot pass the test of reasonableness and consequently the said sub-rule has to be struck down as unconstitutional being violative of Art. 19 (1) (g) of the Constitution of India. Accordingly the said sub-rule is struck down. ( 15 ) SINCE the petitioner's application for alteration of seating capacity of his vehicle has been rejected in view of Rule 216 (2) which we have struck down as void we direct the second respondent to consider the said application in accordance with law. In the circumstances, the parties are directed to bear their own costs. --- *** --- .