PETITIONER: STATE OF MYSORE & ANR. Vs. RESPONDENT: K. G. JAGANNATH DATE OF JUDGMENT27/03/1973 BENCH: ALAGIRISWAMI, A. BENCH: 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] JUDGMENT:
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..
777