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1971 DIGILAW 322 (KAR)

T. P. BORAIAH v. STATE OF MYSORE

1971-10-27

MALIMATH, NARAYANA PAI

body1971
NARAYANA PAI, CJ. ( 1 ) BOTH these petitions rarse the same quesuons and a detailed consideration or one will dispose or poth the writu petitions. We take up writ petition no. 20750 ot 1971. ihe petitioner is an operator ot stage carriage services he operates his vemcles on contract carriage permits also. ( 2 ) HE impugns the legality oi a notice dated the bth July, 1971 issued to him by the secretary 01 tne Regional transport Autnority,. Mysore calling upon him to produce his permits lor the purpose ol adding thereto an additional condition to the following effect. " A transport vehicle shall not be used on any public road unless taxes due in respect ol the vehicle have been paid in accordance with the provisions or the Mysore Motor Vehicles taxation Act, 1957, the mysore Motor Vehicles (taxation of Passengers and Goods) Act, 1961 and the rules and notifications issued thereunder. " ( 3 ) THE proposed additional condition is a copy of clause (i) of Rule 106 of the Mysore Motor Vehicles Rules, 1963, as amended by a notification no. HD 34 TMR 66 dated the 14th June, 1966. belore the amendment the said clause made reference only to Motor Vehicles Taxation Act. All that the amendment did was to make further reference to the Mysore motor Vehicles Taxation on Passengers and Goods Act also. ( 4 ) THE petitioner raises two questions. The first is that the power to impose an additional condition on a permit is that of the Regional transport Authority and that unless the same has been specifically delegated to the Secretary, the said Secretary has no competence to issue the notice. The petitioner contends that to his knowledge there is no such delegation. However this is a matter which the petitioner could raise even before the Secretary when he appears before him and as the matter is purely a question of fact capable of verification on the records of the regional Transport Authority, nothing more need be said on it in this writ petition. ( 5 ) THE second contention is that clause (i) of Rule 106 of the Mysore motor Vehicles Rules is beyond the scope of the rule making power under s. 68 of the Mysore Motor Vehicles Act and that therefore the same should be struck down as ultra vires. ( 5 ) THE second contention is that clause (i) of Rule 106 of the Mysore motor Vehicles Rules is beyond the scope of the rule making power under s. 68 of the Mysore Motor Vehicles Act and that therefore the same should be struck down as ultra vires. Now, the power under the said section is to make rules for the purpose of carrying into effect the provisions of chapter IV of the Motor Vehicles Act, The said chapter deals with the topic of control oi transport vehicles. Among other things, the most important mode whereby transport vehicles and their operation are controlled is by providing for the necessity of taking out a permit for their operation and attaching conditions to such permit. S. 48 and S. 59 enumerates the conditions which may be attached and must be attached to the permit. The compulsory conditions are those set out in S. 59 which are of what may be described as of general nature, intended generally to see that motor vehicles are operated subject to the law relating to the operation, such as laws or rules which control speed etc. S. 48, in its third sub-section, authorises the Regional Transport Authority granting the permit to attach any one or more of the conditions enumerated therein. After enumerating several conditions, clause (xxiii) mentions: "any other conditions which may be prescribed. " 'prescribed' under clause (21) of S. 2 means prescribed by rules made under the Act. Therefore, one of the purposes in respect of which rule making power under S. 68 may be exercised is to enumerate additional conditions which may be added to the permit by the Regional Transport authority. It is worthwhile noting at this stage that so far as the conditions enumerated in sub-sec. (3) of S. 48 are concerned, the Regional transport Authority is vested with the discretion of selecting the conditions out of those enumerated therein for being imposed in respect of any of the permits granted by him. Hence conditions prescribed for the purposes of clause (xxiii) would also be conditions which it is optional for the regional Transport Authority to impose or not to impose. ( 6 ) AS already stated, the provision of clause (xxiii) of sub-sec. (3) of S. 48 expressly authorises the rule making authority under S. 68 to prescribe additional conditions. Hence conditions prescribed for the purposes of clause (xxiii) would also be conditions which it is optional for the regional Transport Authority to impose or not to impose. ( 6 ) AS already stated, the provision of clause (xxiii) of sub-sec. (3) of S. 48 expressly authorises the rule making authority under S. 68 to prescribe additional conditions. Hence by the mere process of prescribing additional conditions, it cannot be contended that the rule making authority is travelling beyond the scope of its power. ( 7 ) THE argument however is that the additional conditions prescribed for the purpose of clause (xxiii) of sub-clause (3) of S. 48 should have a reasonable connection with the topic of legislation in Chapter IV of the Motor Vehicles Act, viz. , the control of transport vehicles. Tested that way, one has to see whether the imposition of conditions prohibiting operation of motor vehicles, without payment of taxes either under the motor Vehicles Act or under the Motor Vehicles (Taxation of Passengers goods) Act, has or has not any reasonable relationship with the control of transport vehicles. It may be stated in general terms that the object of the control is to provide for the benefit of the travelling public an uninterrupted, safe and reasonably comfortable mode of transport. It is seen from the Motor Vehicles Taxation Act that one of the modes of recovering tax due under the Act, is to attach and detain the motor vehicle in respect of which it remains unpaid. Hence, it is perfectly conceivable that the non-payment of tax under the said Act would result in either total interruption of the service by the attachment and detention of the vehicle or by serious inconvenience to the travelling public if the attachment is effected when the transport vehicle is actually operating and conveying passengers. If that much is possible, and it is not possible to contradict the same, we fail to see how the prohibition sought to be imposed by the condition set out in clause (i) of Rule 106 of the Motor Vehicles Rules is so far away from the purpose of Chapter IV of the Motor Vehicles Act or so totally unconnected therewith as to be struck down as beyond the scope of the rule making power under S. 68 of the Act. ( 8 ) ANOTHER argument questioning the validity of the said clause is thai it is likely to impose unreasonable restriction on the fundamental right of carrying on a business or trade. It is stated that whereas it is permissible under the Motor Vehicles (Taxation of Passengers and Goods) act, to make an estimate and pay the tax. it is not unlikely that the assessing authority may, at date after an assessment, determind as payable more tax than has been paid actually and that therefore upon such a determination there is Pvery likelihood of the authorities under the Motor vehicles Act taking steps to suspend or cancel the permit under S 60 of the Motor Vehicles Act. ( 9 ) THIS has been stated bv way of illustration. Mr. Rangaswamy, learned Counsel for the petitioner, states that similar situations might arise in the operation of the Act resulting in what may really be regarded as very unreasonable restraints. ( 10 ) EVEN assummnig that such situations might arise, the argument really amounts to no more than saving that there is possibility of absue of power or the possibility of the rule in certain circumstances operating to impose unreasonable restrictions on a fundamental right. It is clear law that possibility of abuse or possibility of breach or infringement of any df the fundamental rights in the course of executive action is by itself no ground to strike down any provision of law which is ex facie not open to any such attack ( 11 ) EVEN otherwise, it appears to us that in actual event no such situation, as suggested bv Mr. Rangaswamy, can arise. When a person liable to pay advance tax, makes payment of such tax following the procedure and the rules for computation laid down under the relevant statute, it cannot be said that there is any thing more then due bv him. If and when the assessing authority disagrees with the Computation made by the assessee and dptermines that a higher sum is due and makes a demand therefor, only the excess will become due on the date specified in the demand. Hence, we do not see any possibility of what was initially lawful becoming unlawful retrospectively upon the happening of an event subsequent thereto. Hence, we do not see any possibility of what was initially lawful becoming unlawful retrospectively upon the happening of an event subsequent thereto. ( 12 ) WO do not see sufficient grounds to hold that clause (i) of Rule 106 of the Motor Vehicles Rules is beyond the scope of rule making power under S. 68 of the Motor Vehicles Act or to any extent infringes any fundamental right of the petitioner. Both the writ petitions are, therefore, dismissed. --- *** --- .