STATE OF MYSORE & ANR. v.

K. G. JAGANNATH March 27, 1973

(A. ALAGIRISWAMI AND C. A. VAIDIALINGAM, JJ.]

/'.lysore Motor Vehicle Rules, 1963, r. 116(1)-Power to fix 111i11i111t1n1 .seating capacity in a vublic service i:ehicle-lf valid.

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 hin1 the respondent was running a bus with a seating capacity of 30.

He wanted to rCplace the bus with a new one and applied for permission to alter t'he seating capacity of the new bus from 40 to 30, but, the permission was refused.

In a petition tor the issue of a Vr'rit of 111andamus, 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 . poi:nt of view of the effect it ha.5 on the particular individual like the respondent but from the point of .view of the generality of the motor vehicle operators as welt 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 o'f the seating capacity specified in the registration certificate and the permit to the seripus incon~ venience and discomfort of the travelling public

, in additiqo 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. Jt is true that fhc 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 pern1it amended in order to -allow for the increased capacity, because. under Rule 131. the procedure for replacing any vehicle covered hv a permit by a vehicle of a ditf.erent type or of a different capacity is made simple.

1775B-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 ru1e is intended to secure more revenue indirectly; because, the State can do it directly by increasing the rate of tax.

!776A-B]

( 4) The High Court erred in holding that any regulation rel!.arding the minimum number, being uncommon has to be specially defended.

The High Court also erred in ho1din~ that the State had not taken into

account the prevailin~ conditions in the country with regard to the manufacture and availability of bus chassis.

When a certain chassis is capable o'f havin~ a body constn1cted on it so that it can carrv a certain number of passengers to construct a lesser number of seats is waste of \'aluahle transportation facility.

[774E-F; 776D-FJ

(5) Stage carriage operators, exclusively in cities and towns, form a class by themselves and the exemntion in their case has a direct relation to the objectil'es sought to be achieved. Therefore, there is no question

of anv arbitrary -or excessive invnsion of the respondent's rights. The rule iS o:ic of &eneral app'icatiofl' in the interest of the general travelling passengers.

[776F-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 141 of 1972.

Appeal by special leave from. the judgment and orde~ date~ April 15, 197 l of the Mysore High Court at Bangalore m Wnt 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 ot 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( l )(g) of the.

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 he applied to the Regional Transport Officer, Bangalore Region, for prnnission to alter the seating capacity of the new bm, which he had acquired. from 40 to 30. This application having been ejected he filed a

petition fori ssue 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 !eave.

The contention of the operator was that the impugned ruk 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 he ;,; compelled to increase the number of scats 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 capacitv specified in the regislrution cerlificate 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 hi question can have a seating capacity of 40.

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

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

(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 sp_ecified in column (2) of the Table below :

Provided that the operator may increase the capacity cone

sistent with the other rules rlating to seating capacity and with due regard to the type of the chassis on which the body is fitted :

Wheel base

(1)

2S4 to 293 cm.

294 to 305 cm.

306 to 343 cm.

344 to 407 <in.

408 to 432 cm.

433 to 496 cm.

497 to 534 cm.

above 535 cm

TABLE

No. of seats (Mini n1um seating capa

city)

(2)

(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 Autho

rity, shall be provid~."

It is agreed by both the parties that there are only four manufacturers of bus chassis in the cotry '\Vith wheel bases and number

of seats as given below :

Section 70 of the Motor Vehicles Act enables rul~ to be made regulating the 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 pennit. Under section 123 whoever drives a motor vehicfe 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 fiiie 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

the condition regarding the maximum number of passengers that might be carried) can hie varied only alter followil!g the prescribed 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 biJs 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 insist~ 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 provic; ling 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 been 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 tliat 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 stand ing passengers are allowed in a bus with a carrying capacity of an!I above. The tax payable in respect of standing p11$sengers ts Rs. 10 per quarter. The tax payable under the Mysore Motor

MYSOll v. K, G. JAGANNATH (A/agiriswami, J,) 715

Vohicles (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 in creased capacity im)l95Cd by Rule 13 7 and provision of section 48 (3 )(xxi) regarding the v?fiation 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 permit may, with the permission of the authority by \_Vhich the permit was granted replace any vohicle covered by the permit by any other vehicle of the same nature. Under Rule 13.1 the prncedure

for replacing any vehicle covered by a permit by a vehicle of a different type or of 'a differen~ capacity is also µiade 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 oper.ators 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 averai:e 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 :ire many areas and many routes crying for transport facilities and they would be better served. We arc 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 m 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) that he has got four buses running between Doddaballapur and Tumkur.

If it is found that the average number of passengers 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

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 re; ison not to accept the statement made on behalf of the State that the passenger traffic on every i:oute in the State has increased by leaps and oounds, that generally it was found that the stage carriage operators were carrying passengers in excess of the seating capacity specified jo the Registration Certificate and the permit to the serious inconvenience and discomfort of the iravelling 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 replations 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 tc;> the manufacture and availabality 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 dbjective 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 generat travelling 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 al/owtd.

L761Sup.(C!)/73-2S00--4·9-74-GIPF.