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STATE OF MYSORE & ANR versus K. G. JAGANNATH

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1973 AIR 2165 1973 SCR (3) 770 1973 SCC (1) 730

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STATE OF MYSORE & ANR V. K. G. JAGANNATH [1973] RD-SC 55 (27 March 1973)

ALAGIRISWAMI, A.

ALAGIRISWAMI, A.

VAIDYIALINGAM, C.A.

CITATION: 1973 AIR 2165 1973 SCR (3) 770 1973 SCC (1) 730

ACT:

Mysore Motor Vehicle Rules, 1963, r. 216(2)-Power to fix minimum seating capacity in a public service vehicle--If valid.

HEADNOTE:

Rule 216(2) of the Mysore Motor Vehicle Rules, 1963, provides for the fixation of minimum seating capacity of a public service vehicle. Under a permit granted to him the respondent was running a bus with a. seating capacity of

30. He wanted to replace the bus with a new one and applied forpermission to alter the seating capacity of the new bus from 40 to 30,but, the permission was refused.In a petition for the issue of a writof mandamus, the High Court struck down the rule and directed the Regional Transport Officer to grant the necessary permission. Allowing the appeal to this Court,

HELD : (i) The power conferred by s. 70 of the Act is wide enough to enable the making of the impugned rule. The validity of the rule has to be considered not merely from the point of view of the effect it has on the particular individual like the respondent but from the point of view of the generality of the motor vehicle operators as well as the public. there is no reason for not accepting the statement made on behalf of the State that passenger traffic on every route in the State had increased considerably, that generally it was found that stage carriage operators were 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, and that it was with a view to' eliminate such evils that the impugned rule had been framed. It is true that the .State_ has necessary machinery to check such contravention, but it cannot always succeed in doing so.

[774D; 775D- 776B-D] (2) There is no difficulty in getting the permit amended in order to allow for the increased capacity, because, under Rule 131, the procedure for replacing any vehicle covered by a permit by a vehicle of a different type or of a different capacity is made simple. [775B-C] (3) The tax on a bus with a minimum capacity of 40 is more than the tax on a bus with a minimum capacity of 30; but there is no basis for the contention that the rule is intended to secure more revenue indirectly; because, the State can do it directly by increasing the rate of tax.

[776A-D] (4) The High Court erred in holding that any regulation regarding the minimum number, being uncommon has to be specially defended. The High Court also erred in holding that the State had not taken into account the prevailing conditions in the country with regard to the manufacture and availability of bus chassis. When a certain chassis is capable of having a body constructed on it so that it can carry a certain number of passengers to construct a lesser number of seats is waste of valuable transportation facility. [774E-F; 776D-F] (5) Stage carriage operators, exclusively in cities and towns, form a class by themselves and the exemption in their case has a direct relation to the objectives sought to be achieved. Therefore, there is no question 771 of any arbitrary or excessive invasion of the respondents rights. The rule is one of general application in the interest of the general travelling passengers. [7.76F-G]

CIVIL APPELLATE JURISDICTION Civil Appeal No. 141 of 1972 Appeal by special leave from the judgment and. order 'dated.

April 15, 1971 of the Mysore High Court at Bangalore in Writ Petition No. 5109 of 1970.

H. B. Datar, and R. B. Datar, for the appellants.

M. C. Setalvad and K. N. Bhatt, for the respondent.

The Judgment of the Court was devlivered by ALAGIRISWAMI, J. This is an appeal against the judgment of the High Court of Mysore striking down Rule 216(2) of the Mysore Motor Vehicles Rules, 1963, introduced on 7th October, 1969, on the ground that it violates Article .19 (1) (g) of tic Constitution.

The respondent, who is a transport operator plying buses between, Doddaballapur and Tumkur, wanted to replace one of his buses running on that route with a new one. Under the permit granted to him,' which was valid up to 30-10-1975, his bus had a seating capacity of 30. On 2-11-1970 lie applied to, the Regional Transport Officer, Bangalore Region, for permission to alter the seating capacity of the new bus, which lie had acquired', from 40 to 30. This application having been rejected he filed i petition for issue of a writ of Mandamus directing the Regional Transport Officer to grant the necessary permission, and that petition having been allowed the State of Mysore has.

come on appeal to this Court by special leave.

The contention of the operator was that the impugned rule which fixed the minimum seating capacity of buses is really intended indirectly to, compel the operators to pay more taxes, that he is already operating on a narrow margin of profit and if lie is compelled to increase the number of seats in his bus he would incur losses because of the additional tax which he will have to pay and this is an interference with his right to carry on his, business.

According to the State the impugned Rule was intended 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. There is no dispute that the bus in question can have a seating capacity of 40.

The impugned Rule, in so far as it is relevant, reads as follows:

"216 (1)....................

772 (2) The minimum seating capacity of a 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 con- sistent 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 (Mini- mum seating capacity) --------------------------------------------------------------- (1) (2) --------------------------------------------------------------- 254 to 293 cm.....................16 294 to 305 cm.....................20 306 to 343 cm..................... 25 344 to 407 cm......................30 408 to 432 cm......................35 433 to 496 cm......................45 497 to 534 cm......................50 above 535 cm.......................55 ------------------------------------------------------------------ --- .lm15 (3) Nothingin 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." 773 It is agreed by both the parties that there are only four manufacturers of bus chassis in the country with wheel bases and number of seats as given below Name Wheel Base minimum number of in seats to be provided inches Cms 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 "....... 212 539 55 Leyland 163 414 35 "...... 176 447 45 " 210 533 50 ------------------------------------------------------------- It will be noticed that the smallest bus available in the market can carry 35 passengers.

Section 70 of the Motor Vehicles Act enables rules to be made regulatingthe construction, equipment and maintenance of motor vehicles. In addition there is power to make rules regarding the seating arrangements in public service vehicles. Under section 48 (3) of the Act there is provision for fixing the maximum number of passengers that may be carried on any specified vehicle or on any vehicle of a specified type. One of the conditions that may be attached to a permit under clause (xx) of that section is that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority. Under section 60 of the Act a permit may be cancelled or suspended if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit. Under section 123 whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of any conditions of a permit in regard to the maximum number of passengers that may be carried on the vehicle is also liable to punishment with a fine which may extend to one thousand, rupees for the first offence and imprisonment that may, extend to six months 'or with fine which may extend to, two thousand rupees, or with both for subsequent offences. Under Rule. 137- of the Mysore Motor Vehicles Rules any of the conditions of the permit (which naturally includes 774 the condition regarding the maximum number of passengers that might be carried can be varied only after following the prescribe procedure. In view of these circumstances it is contended on behalf of the respondents that it is not possible for the transport operator to overload his buses in contravention of the conditions of his permit and that that cannot be a reason for fixing a minimum number of seats in a bus. It is also argued that while there is a specific section which enables the maximum number of passengers that can be carried on a bus to be prescribed, there is no such power to prescribe the minimum number of passengers that can be carried in a bus.

It must be made clear that all that is insisted upon under the impugned Rule is the minimum number of seats to be provided in the bus. It has been urged on behalf of the State that the intention behind. providing buses with bigger bodies with lesser number of seats than they can be provided with is really intended to carry a larger number of passengers and pay a lesser tax. Though it is true that the State has the necessary machinery to check such contravention it cannot always succeed in doing so.

However, we do not consider that the mere possibility of such ,overloading can justify the making of the impugned rule. It has been urged on behalf of the State that the demand for transport has been rising by leaps and bounds every year, whereas on behalf of the respondent it has be-en contended that the average number of passengers carried in his bus on this, route is about 25. The great demand for transport and the rush for seats in buses is too well-known to need emphasis. It appears to us that when a certain chassis is capable of having a body constructed on it so that it can carry a certain number of passengers, to construct on that body a lesser number of seats is a waste of valuable transportation facility. Even on this route there are 14 buses plying between the two points in addition to longer distance buses, of which the stage between Doddaballapur and Tumkur forms a section. So it cannot be said that the demand here is as little as is urged on behalf of the respondent. There. is no reason to disbelieve the averment made on behalf of the State on this point.

The difference in taxation between a bus which carries 30 passengers and a bus carrying 40 passengers is about Rs.

400/-per quarter or Rs. 1600/- per year whereas the difference is Rs. 225/- per quarter between a bus carrying 30 and one carrying 35 passengers. That is because only five standing passengers are allowed in a bus with a carrying capacity of 30 and 10 standing passengers are allowed in a bus with a carrying capacity of 40 and above.

The tax payable in respect of standing passengers is Rs. 10 per quarter. The tax payable under the Mysore Motor 775 Vehicles (Taxation on Passengers and Goods) Act, 1961 need not detain us for long because under that Act the operator is enabled to pass on the tax to the passengers.

The difficulty mentioned on behalf of the respondent about the need to get the permit amended in order to allow for the increased capacity imposed by Rule 137 and provision of section 48 (3) (xxi) regarding the variation of the conditions of the permit need not detain us for long because under the new section 59(2), as amended by Act 56 of 1969, the holder of a may, with the permission of the authority by which the permit was granted replace any vehicle covered by the permit by any other vehicle of the same nature. Under Rule 131 the procedure for replacing any vehicle covered by a permit by a vehicle of a different type or of 'a different capacity is, also. made clearly very simple and where it is of the same type or capacity the variation has. to be granted within a week. We are also of opinion that the power conferred by section 70 of the Act is wide enough to enable the making of the impugned Rule.

The validity of the Rule at present has to be considered not merely from the point of view of the effect it has on a particular individual like the respondent. It has to be looked. at from the point of view of the generality of the motor vehicles operators as well as the public. We have shown above that the vehicles with the minimum capacity available in this country can carry 35 passengers and if, as is alleged by the respondent, the average number of passengers. in buses over this route is only 25, the proper thing to do in due course is to reduce the number of vehicles plying on this route. Otherwise, it would mean unnecessary waste of valuable transport space and facility.

Buses so released could be used elsewhere to much. greater advantage to the travelling public. There are many areas and many\ routes crying for transport facilities land they would be better served. We are unable to place any weight on the basis of an argument which affects one or two individuals, where by insisting upon this provision of a minimum seating capacity the larger public interest will be served. If it causes some inconvenience to a few individuals like the respondent they have got to face the situation. It appears from the additional affidavit filed by the petitioner (respondent herein) at he has got four buses running between Doddaballapur and Tumkur. If it is found that the average number of passengers is only 25, the proper thing to do would be for him to cut down his buses on this route from four to three. In that case there can be no question of his suffering any losses or his being affected in any way in the matter of his carrying on his business.

Though it is not in evidence it may be presumed that the cost of operation of a bus whether it is provided with 30 or 40 seats 776 may not be very much different and there will be the, additional facility available to the public, if the bus has more seats. Moreover, as traffic grows, as it has a tendency to grow everywhere, the public will be better served. We, are ',unable to, accept the contention that the Rule providing for minimum number of seats is intended to secure more revenue indirectly. The State can do it directly by increasing the rate of tax. It is really a rule intended for the benefit of the travelling public. We see no reason not to accept the statement made on behalf of the State that the passenger traffic on every route in the State has increased by leaps and bounds, that generally it was found that the stage carriage operators were 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, and it was with a view to eliminate the above evils that the impugned Rule has been framed.

We are unable to agree with the High Court that as usually there are only regulations regarding the maximum number of seats, any regulation regarding the minimum number of seats being very uncommon has to be specially defended. We have shown above that the regulation is really in the interest of the general travelling public. Nor are we able to agree with the High Court that the State has not taken into account the prevailing conditions in the country with regard to the manufacture' and availability of bus chassis. The minimum number of seats insisted upon defends upon the chassis. In this very case itself as we have seen the respondent really wants to provide 30 seats in the chassis which can provide 40 seats. It is not necessary to say anything regarding the luxury buses which were considered by the High Court because that matter was not argued before us.

Apparently the State has decided to make the necessary provision in this regard.Stage carriage, operators exclusively in cities and towns form a class by themselves and the exemption in their case has a direct relation to the objective sought to be achieved. There is no question here of any arbitrary or excessive invasion of the respondent's rights. The Rule is one of general application which can be justified as being in, the interest of the general tra- velling public.

The appeal is, therefore, allowed and the order of the Mysore High Court is set aside The respondent will pay the appellants' costs.

V.P.S.

Appeal allowed..


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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