JUDGMENT
R.V. Raveendran, J.
1. This matter is taken up for final hearing by consent of Counsel for petitioner and respondent.
2. The petitioner is the holder of the Auto-rickshaw Cab Permit covered by a 1991 Model vehicle bearing No. KA 01/1985.
3. The petitioner made an application on 21.6.1993 for replacing the said vehicle by a 1985 model vehicle bearing No. MH 09/D 378. The said application was made under Section 83(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’) read with Rule 79(1) of the Karnataka Motor Vehicles Rules, 1989, (hereinafter referred to as the ‘Rules’). The respondent has issued an endorsement dated 26.6.1993, as per Annexure-A, rejecting the said request, on the ground that the Regional Transport Authority had by Resolution No. 223/90-91 dated 27-2-1991, imposed a condition that the vehicle proposed to be covered under the permit should not be more than two years old on the date of obtaining the permit and that the permit was obtained on 19-7-1991 with a 1991 model vehicle, and the proposal to replace it by a 1985 model vehicle was in contravention of the Resolution of the R.T.A. Feeling aggrieved by the said order, the petitioner has filed this petition and sought quashing of the impugned endorsement dated 26-6-1993 and a direction to the respondent to grant permission for replacement of the 1985, model vehicle bearing No. MH09/D 378 in place of the existing 1991 Model vehicle.
4. Grant of a permit in regard to an Autorickshaw Cab is governed by Sections 73 and 74 of the Act and replacement of the vehicle is governed by Section 83. Section 74(2) provides that the Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions:
(i) That the vehicles shall be used only in a specified area, or on a specified route or routes;
(ii) That except in accordance with specified conditions, no contract of hiring, other than an extension or modification of a subsisting contract may be entered into outside the specified area;
(iii) The maximum number of passengers and the maximum weight of luggage that may be carried on the vehicles either generally or on specified occasions or at specified times and seasons;
(iv) The conditions subject to which goods may be carried in any contract carriage in addition to, or to the exclusion of, passengers;
(v) That, in the case of motor cabs, specified fares or rates of fares shall be charged and a copy of the fare table shall be exhibited on the vehicle;
(vi) That, in the case of vehicles other than motor cabs, specified rates of hiring not exceeding specified maximum shall be charged;
(vii) That, in the case of motor cabs, a specified weight of passengers’ luggage shall be carried free of charge, and that the charge, if any, for any luggage in excess thereof shall be at a specified rate;
(viii) That, in the case of motor cabs, a taximeter shall be fitted and maintained in proper working order, if prescribed.
(ix) That the Regional Transport Authority may, after giving notice of not less than one month,
(a) vary the conditions of the permit;
(b) attach to the permit further conditions;
(x) That the conditions of permit shall not be departed from save with the approval of the Regional Transport Authority;
(xi) That specified standards of comfort and cleanliness shall be maintained in the vehicles;
(xii) That, except in the circumstances of exceptional nature, the plying of the vehicle or carrying of the passengers shall not be refused;
(xiii) Any other conditions which may be prescribed.
5. Age of the vehicle is not one of the conditions enumerated under Section 74(2). Though Section 74(2) (xiii) refers to any other conditions which may be prescribed, no conditions have been prescribed by the Rules made under the Act. “Prescribed” means prescribed by the Rules made under the Act and not ‘prescribed’ by any Resolution passed by the Regional Transport Authority. In the absence of any condition regarding the age of the autorickshaw in the Act or Rules, the Regional Transport Authority, by a Resolution, cannot impose a condition that a permit should be covered by a vehicle which is not more than two years old. Though the condition that a vehicle to be covered under the permit should not be more than two years old on the date of obtaining of the permit, may be a salutary condition intended for the benefit of the public, imposition of such a condition cannot be related to any power given to the R.T.A. to impose any condition. It is however, a matter that requires to be covered by the Rule making authority under the Act.
6. In this context, reference may be made to Section 72(2) of the Act dealing with grant of stage carriage permits. The said section empowers the Regional Transport Authority to specify the description of the vehicle while granting a permit. The power to specify the ‘description’ includes the power to specifying the age of the vehicle. There is no corresponding power in the R.T.A. to specify the description under Section 74(2). In the absence of any such power, it has to be held that the Regional Transport Authority has no authority to impose a condition that the vehicle covered should not be more than two years old on the date of obtaining the permit.
7. Section 83 of the Act providing for replacement of vehicle reads as follows:
83. Replacement of vehicles:-The holder of a permit may, with 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.
Rule 79 providing for replacement of a vehicle covered by a permit reads as follows:
79. Replacement of a vehicle covered by a permit:
(1) If a holder of a permit desires at any time to replace any vehicle covered by the permit by another vehicle, he shall forward the permit and apply in Form KMV 51 to the Transport Authority by which the permit was granted, stating the reasons why the replacement is desired and shall also simultaneously.
(i) if the replacer vehicle is in his possession, forward the certificate of registration of that vehicle; or
(ii) if the replacer vehicle is not in his possession, state any material particulars in respect of which the replacer vehicle will differ from the vehicle to be replaced.
(2) On receipt of an application under Sub-rule (1), the Transport Authority, may, subject to the provisions of Sub-rule (6), grant permission for replacement, notwithstanding the fact that the replacer vehicle differs in material respect and capacity from the vehicle to be replaced.
(3) The Transport Authority may, for reasons to be recorded and communicated to the applicant, reject any application made to it under Sub-rule (2), if the holder of the permit has contravened any provisions thereof or has been deprived of possession of the vehicle proposed to be replaced under any hire-purchase agreement.
These provisions relating to replacement do not prohibit replacement by an older vehicle. The only condition is that the replacer vehicle should also be of the same nature, even though it may differ in material aspect. Thus, the application for replacement could not be refused, (sic) as the replacer vehicle had a valid Fitness Certificate.
8. (sic) Kumar, learned High Court Government Pleader, appearing for the respondent contended that under Section 74(2), one of the conditions that may be attached while (sic) permit was that specified standards of comfort and cleanliness shall be maintained in the vehicles (vide conditional) and under the said provision, the Regional Transport Authority is entitled to impose any reasonable condition to ensure standards of comforts and cleanliness and the requirement that the vehicle should be less than two years old is referable to the said condition. By no stretch of imagination, it can be held that the age of the vehicle, is a condition relating to standards of comfort and cleanliness to be maintained in the vehicles. Further the Resolution of the R.T.A. relating to Autorickshaw Cab permits is not made in exercise of the powers under Section 74(2) of the Act, but purported to have been made under Section 74(3) of the Act. The said resolution dated 27.2.1991 reads as follows:-
Sl. No. 63/Sub. No. 223/90-91:- To consider the applications filed for grant of Autorickshaw Cab permits in the light of the circular of the Transport Commissioner, Bangalore, with the instructions to place the same before the RTA, Bangalore, for consideration vide No. STA. I.A.PR. 112/AR 90-91.
Resolution
Section 74(3) of the M.V. Act, 1988 reads that “The State Government shall, if so directed by the Central Government, having regard to the number of vehicles, road conditions and other relevant matters by notification in the Official Gazette, direct a State Transport & a Regional Transport Authority to limit the number of contract carriages generally or of any specified type as may be fixed and specified in the notification operating on City routes in towns with a population of not less than five lakhs.
In view of the above it is evident that there is no restriction expressed under the law and neither the State Government has by a notification specified the limitation of number of permits to be issued under Section 74(3)(a) of the Motor Vehicles Act, 1988, it is open to the Regional Transport Authority to issue permits as and when it so desires having regard to the various conditions prevalent. Therefore, having due regard to the conditions prevalent it is resolved to grant fresh autorickshaw cab permits to all those applicants who fulfil the conditions detailed below for operation in Bangalore City Corporation Area to be valid for a period of five years from the date of issue of the permits.
(a) The applicant must be holder of driving licence to drive an autorickshaw cab;
(b) The Vehicle proposed to be covered under the permit should not be more than two years old on the date of obtaining of the permit;
(c) The permits are not transferable; in the event of the sale of the vehicle covered under the permit, it is open to the permit holder to seek replacement or to surrender the permit for cancellation;
(d) The permits should be obtained within ninety days producing valid documents, such as Registration Certificate, fitness certificate, insurance certificate.
(e) The grantee should not be a holder of any other autorickshaw permit in his name or in the name of near relatives and also a declaration to that effect is to be obtained by the Secretary and placed on record.
The Secretary, RTA is further directed to give wide publicity in the leading newspapers immediately.
9. Two things are apparent from the said Resolution. One is that the RTA in passing the said Resolution, has assumed a jurisdiction which is not vested in him under Section 74. Secondly under Section 74(3), a Regional Transport Authority can only limit the number of contract carriages, generally or of any specified type, as may be fixed and specified in the notification operating in city routes, only if the State Government on being so directed by the Central Government, directs the RTA by a Notification in the Official Gazette. No such notification is issued by the State Government. But by an erroneous interpretation of the said provision, the RTA has resolved that it is open to the RTA to impose conditions as the State Government has not issued a notification under Section 74(3)(a). As the RTA has tried to assume a jurisdiction, not vested in him by law, nor granted to him by a notification by the State Government, the said Resolution is not enforceable.
10. Shri C.V. Kumar, next relied on the decision of this Court in K.B. Balakrishna Rai v. Karnataka State Transport, Appellate Tribunal, reported in 1989(3) KLJ 393. In that case, the Court while dealing with Section 47(1)(a) and 48(3) of the Motor Vehicles Act, 1939, held that it is permissible to require a vehicle of a particular age should cover the permit. Section 48(3) provided that the Regional Transport Authority while granting the stage carriage permit can specify the description of the vehicle. Section 47(1) provides that while considering an application for Stage Carriage Permit, the Regional Transport Authority shall have due regard to the interest of public and certain other matters enumerated therein. Thus that decision which is decided with reference to provisions which are not similar, and which enabled the RTA to prescribe conditions regarding age, is of no assistance to the respondent in this case.
11. In these circumstances, the impugned endorsement which is issued, based on a Resolution which is invalid, is liable to be quashed. It is accordingly quashed. The respondent is directed to consider the application of the petitioner in accordance with law and the observations made above, as expeditiously as possible, without reference to the Resolution dated 27.2.1991 of the RTA, which is invalid.
12. Shri. C.V. Kumar, learned Government Pleader is permitted to file his memo of appearance within four weeks.