Case: State of Karnataka and Another Vs. H. Ganesh Kamath Etc

or obtaining a driving licence and who is not suffering from any disease or disability specified in the Second Schedule to the Act and has passed the test of competence to drive specified in the Third Schedule of the Act carried out in a vehicle of the type to which his application for a driving licence refers, is entitled, on payment of the prescribed fee, to be granted the driving licence applied for by him. It is pertinent to note that under section 7(7) the test of competence to drive is to be carried out in a vehicle of the type to which the application refers. Thus, what the Act contemplate s and requires is competence in driving the type of vehicle in respect of which the applicant is desirous of obtaining a driving licence. Further, so far as the test of competence set out in the Third Schedule to the Act is concerned, for the purpose of part I of the test, a person who passes the test in driving a heavy motor vehicle is also to be deemed to have passed the test in driving any medium motor vehicle or light motor vehicle. Thus, for the purpose of passing the test of competence to drive a heavy motor vehicle a person is not required to possess any experience in driving a medium motor vehicle. The requirement of the said sub-rule 5(2) that an applicant for a licence to drive a heavy motor vehicle should satisfy the concerned licensing authority that he has had at least two years experience in driving any medium motor vehicle necessarily implies that such applicant has possessed a licence to drive a medium motor vehicle for a period of at least two years. Thus, while from clause (a) of sub-section (7) of section 7 it automatically follows that a person who passes the test in driving a heavy motor vehicle is to be deemed also to have passed the test in driving any medium motor vehicle, under the said sub-rule (2) of rule 5 he cannot obtain a licence to drive a heavy motor vehicle unless he has already possessed a licence to drive a medium motor vehicle and has experience in driving it for a period of at least two years which licence he could not obtain unless he has previously passed the test in driving a medium motor vehicle. Thus, the provisions of the said sub- rule (2) of rule 5 are obviously inconsistent with the provisions of sub-sections (7) and (8) of section 7. The sai d sub-rule does not merely prescribe a qualification not provided for in the Act, but prescribes a qualification which is contrary to that provided in the Act. Under sub- section (8) of section 7 on satisfying the conditions provided in sections 4 and 7 and on the payment of the requisite fee, the applicant becomes entitled to the grant of a driving licence. This right of an applicant for a licence to drive a heavy motor vehicle is sought to be whittled down by the said rule 5 (2) and that too by providing a condition contrary to the provisions of section 7(7) (a). Though the substituted clause (aa) inserted in sub-section (2) of section 21 confers power upon a State Government to make rules providing for the minimum qualifications of persons to whom licences to drive a transport vehicle are issued, such power cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power. It is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is in consistent there with or repugnant thereto.On behalf of the Appellants reliance was placed upon the words "and who is not for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (1) of section 7 and upon the words "or is for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (8) of section 7. On the basis of these words it was submitted that the disqualification for holding or obtaining a driving licence would include not only disqualifications laid down in the Act but also a disqualification prescribed by a rule made by virtue of the power conferred by clause (aa) of section 21 (2). We are unable to accept this submission. Section s 15 to 17 of the Act prescribe the cases in which a person can be disqualified for holding or obtaining a driving licence. Section 18(1) provides that a person in respect of whom any disqualification order is made shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall case to be effective to such extent and during such period. The words in sub-sections (1) and (8) of section 7 relied upon by the Appellants, therefore, refer to a disqualification for holding or obtaining a driving licence incurred under sections 15 to 17 of the Act and not to any disqualification provided for in the rules. Had the intention of the Legislature been to provide also for a disqualification prescribed by the rules, sub-sections (1) and (8) of section 7 would have been suitably amended when clause (aa) was substituted for the old clause (aa) in section 21(2) by inserting in the said sub-sections the words "under this Act or the rules made thereunder" or by inserting other appropriate words.In our opinion, the Karnatka High Court was right in coming to the conclusion that sub-rule (2) inserted in rule 5 of the Karnataka Motor Vehicles Rules, 1963, by the said Notification No. HD 16 TMR 73 dated July 7, 1976 was ultra vires of the Act.I

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The Karnataka High Court in its judgment under appeal has held that: the impugned rule 5(2) is repugnant to the provisions o f sub-sections (7) and (8) of section 7 of the Act on the very same grounds upon which the original sub- rules (2) and (3) of Rule 5 were struck down by that Court in Cyril Lobos case. That there is a repugnancy between the said rule 5(2) and section 7 of the Act, is apparent on a plain reading of these provisions. The qualifications for obtaining a driving licence are laid down in sections 4 and 7 of the Act. Section 4 prescribes the qualification as to age. Under sub-section (8) of section 7 a person who is not disqualified under section 4 for driving a motor vehicle and who is not for the time being disqualified for holding or obtaining a driving licence and who is not suffering from any disease or disability specified in the Second Schedule to the Act and has passed the test of competence to drive specified in the Third Schedule of the Act carried out in a vehicle of the type to which his application for a driving licence refers, is entitled, on payment of the prescribed fee, to be granted the driving licence applied for by him. It is pertinent to note that under section 7(7) the test of competence to drive is to be carried out in a vehicle of the type to which the application refers. Thus, what the Act contemplate s and requires is competence in driving the type of vehicle in respect of which the applicant is desirous of obtaining a driving licence. Further, so far as the test of competence set out in the Third Schedule to the Act is concerned, for the purpose of part I of the test, a person who passes the test in driving a heavy motor vehicle is also to be deemed to have passed the test in driving any medium motor vehicle or light motor vehicle. Thus, for the purpose of passing the test of competence to drive a heavy motor vehicle a person is not required to possess any experience in driving a medium motor vehicle. The requirement of the said sub-rule 5(2) that an applicant for a licence to drive a heavy motor vehicle should satisfy the concerned licensing authority that he has had at least two years experience in driving any medium motor vehicle necessarily implies that such applicant has possessed a licence to drive a medium motor vehicle for a period of at least two years. Thus, while from clause (a) of sub-section (7) of section 7 it automatically follows that a person who passes the test in driving a heavy motor vehicle is to be deemed also to have passed the test in driving any medium motor vehicle, under the said sub-rule (2) of rule 5 he cannot obtain a licence to drive a heavy motor vehicle unless he has already possessed a licence to drive a medium motor vehicle and has experience in driving it for a period of at least two years which licence he could not obtain unless he has previously passed the test in driving a medium motor vehicle. Thus, the provisions of the said sub- rule (2) of rule 5 are obviously inconsistent with the provisions of sub-sections (7) and (8) of section 7. The sai d sub-rule does not merely prescribe a qualification not provided for in the Act, but prescribes a qualification which is contrary to that provided in the Act. Under sub- section (8) of section 7 on satisfying the conditions provided in sections 4 and 7 and on the payment of the requisite fee, the applicant becomes entitled to the grant of a driving licence. This right of an applicant for a licence to drive a heavy motor vehicle is sought to be whittled down by the said rule 5 (2) and that too by providing a condition contrary to the provisions of section 7(7) (a). Though the substituted clause (aa) inserted in sub-section (2) of section 21 confers power upon a State Government to make rules providing for the minimum qualifications of persons to whom licences to drive a transport vehicle are issued, such power cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power. It is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is in consistent there with or repugnant thereto.On behalf of the Appellants reliance was placed upon the words "and who is not for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (1) of section 7 and upon the words "or is for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (8) of section 7. On the basis of these words it was submitted that the disqualification for holding or obtaining a driving licence would include not only disqualifications laid down in the Act but also a disqualification prescribed by a rule made by virtue of the power conferred by clause (aa) of section 21 (2). We are unable to accept this submission. Section s 15 to 17 of the Act prescribe the cases in which a person can be disqualified for holding or obtaining a driving licence. Section 18(1) provides that a person in respect of whom any disqualification order is made shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall case to be effective to such extent and during such period. The words in sub-sections (1) and (8) of section 7 relied upon by the Appellants, therefore, refer to a disqualification for holding or obtaining a driving licence incurred under sections 15 to 17 of the Act and not to any disqualification provided for in the rules. Had the intention of the Legislature been to provide also for a disqualification prescribed by the rules, sub-sections (1) and (8) of section 7 would have been suitably amended when clause (aa) was substituted for the old clause (aa) in section 21(2) by inserting in the said sub-sections the words "under this Act or the rules made thereunder" or by inserting other appropriate words.In our opinion, the Karnatka High Court was right in coming to the conclusion that sub-rule (2) inserted in rule 5 of the Karnataka Motor Vehicles Rules, 1963, by the said Notification No. HD 16 TMR 73 dated July 7, 1976 was ultra vires of the Act.