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PETITIONER: STATE OF KARNATAKA AND ANR.

       Vs.

RESPONDENT: H. GANESH KAMATH ETC. ETC.

DATE OF JUDGMENT31/03/1983

BENCH: MADON, D.P. BENCH: MADON, D.P. MUKHARJI, SABYASACHI (J)

CITATION:  1983 AIR  550            1983 SCR  (2) 665  1983 SCC  (2) 402        1983 SCALE  (1)321

ACT:      Karnataka  Motor  Vehicle  Rules,  1983,  Sub-rule  (2) inserted in Rule 5 by the Notification No. H.D. 16 T.M.R. 73 dated July  7, 1976,  whether inconsistent  with  and  ultra vires of  the provisions of sub-section 7 and 8 of Section 7 of the  Motor Vehicles  Act, 1939(Act  IV of 1939)-words and phrases "for  the time  being disqualified  for  holding  or obtaining a driving licence", meaning of.

HEADNOTE:      Under Section  7 of  the Motor  Vehicles Act, 1939, for the grant  of a  driving licence,  a person  (1) must not be disqualified as to age prescribed under Section 4; (ii) must submit a medical certificate in Form ’C’, if he wishes to be a paid  employee or to drive a transport vehicle, (iii) must not be  suffering from  an disease  or disability  noted  in Second Schedule  and (iv)  must pass  to the satisfaction of the licensing  authority the  test of  competence  to  drive specified in  the Third  Schedule. Under  sub-section  7  of Section 7,  the test of competence to drive shall be carried out in  a vehicle  of the  type  to  which  the  application refers, and,  for the  purposes of Part I of the test, (a) a person who  passes the test in driving a heavy motor vehicle shall be  deemed also to have passed the test in driving any medium motor vehicle and (b) a person who passes the test in driving a  medium motor vehicle shall be deemed also to have passed  the   test  in   driving  any  light  motor  vehicle respectively.      Sub-rules (2)  and (3) of Rule 5 of the Karnataka Motor Vehicle Rules  1963 prescribing  certain years of experience in driving  before granting  the licence  was struck down by the Mysore  High Court  in Civil Lobo v. State of Mysore and Ors (1970)  2 Mys. L.J. 410 as repugnant to Sections 4 and 7 (8) of the M.V. Act      After the  amendment of Section 21 (2) of the M.V. Act, by Act  LVI of  1969 substituting  clause (aa) in section 25 (2) of  the M.V. Act with effect from October 1, 1970 by the impugned Notification No. H.D. 16 TMR 73 dated July 7, 1976, the State  of Karnatka introduced a new sub-rule (2) in Rule 5 to  the effect  :" No authorisation to drive a heavy motor vehicle shall  be granted unless the applicant satisfies the licensing authority  concerned that  he has had at least two

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years experience in driving any medium motor vehicle".      The applications  for a licence for driving heavy motor vehicle of  all the  respondents  who  had  either  training earlier in  a Government recognised Motor Training School or who were  themselves running  such schools  and had  trained many, were  refused on  the basis of sub-rule (2) of Rule 5. The High  Court of  Karnataka, following  Civil Lobo’s  case once again struck down 666 the impugned  Notification introducing  the sub-rule  (2) of Rule 5  as ultra  vires Section  4 and 7(8) of the M.V. Act, 1939. Hence the appeals by the State.      Dismissing the appeals, the Court ^      HELD 1  : 1  Sub-rule (2)  inserted in  Rule 5  of  the Karnataka Motor  Vehicles Rules,  1963, by  the Notification No. H.D.  16 TMR  73 dated  July 7, 1976 was ultra vires the Motor Vehicles Act, 1939. [675 B-C]      1 :  2 Though  the substituted  clause (aa) inserted in sub-section (2)  of Section 21 of the Act confers power upon 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 inconsistent therewith or repugnant thereto. [674 C-E]      1 :  3 The  provision of  sub-rule (2)  of Rule  5  are obviously inconsistent  with the  provisions of sub-sections (7) and  (8) of  Section 7  of the MV Act. The said sub-rule does, not  merely prescribe  a qualification not provided 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). [674 A-C]      Cyril Lobo  v. The State of Mysore & Anr. (1970) 2 Mys. L.J.P. 410, approved.      2 :  1 The  disqualification for holding or obtaining a licence would  not include disqualifications prescribed by a rule made by virtue of the power conferred by clause (aa) of Section 21(2). [674 F]      2 :  2 Sections 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 for holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the  order shall cease to be effective to such extent and during such period. [674 G-H]      2:3 The words in sub-sections (1) and (8) of Section 7, 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

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667 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. [674 H; 675 A-B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2488- 2491 of 1977      Appeals by  Special leave  from the  Judgment and Order dated the  25th February, 1977 of the Karnatka High Court in writ Petitions Nos. 6432,6433,6486 & 6526 of 1976      N.Nettar for the Appellant.      A.K.Sen, K.N.Bhatt,  S.R.Bhatt and  N.Ganapathy for the Respondents.      The Judgment of the Court was delivered by      MADON,J. This group of four appeals by special leave is directed  against   a  common  judgment  and  order  of  the Karnataka High Court in four writ petitions whereby the High Court struck  down sub-rule  (2) inserted  in rule  5 of the Karnataka Motor  Vehicles Rules, 1963, by Notification No.HD 16 TMR  73 dated  July 7,1976 as being ultra vires the Motor Vehicles Act,  1939 (Act 4 of 1939) (hereinafter referred to as ’the Act’).      The Respondent  in Civil  Appeal No.  2488 of  1977 had obtained  a   learner’s  licence  for  driving  heavy  motor vehicles under  the said  Rules and had obtained training in Crown  Motor   Driving  School,   Bangalore,  which  was  an Institution recognised  by the Government of Karnataka under rule 30  of the said Rules. He also held a licence to impart training in  driving heavy  motor vehicles. After completion of his  training he  obtained a  certificate from  the  said driving school and applied on July 22, 1976 through it for a licence to  drive heavy  motor vehicles.  The Respondent  in Civil Appeal  No. 2489  of 1977 had applied on July 20, 1976 for a  learner’s licence  to drive heavy motor vehicles. The Respondent in  Civil Appeal  No. 2490  of 1977  as also  the Respondent in  Civil Appeal  No.  2491  of  1977  were  both running schools  for imparting  training  in  driving  heavy motor vehicles and each held a licence to impart training in driving  heavy   motor  vehicles  and  had  trained  several persons. After  successful completion of their training each of them  had applied  for a  licence for driving heavy motor vehicles. All the aforesaid applications were 668 rejected  by  the  Licensing  Authority  on  the ground that the Respondents  did not  satisfy the  requirements  of  the impugned sub-rule  (2) of  rule 5. The respondents thereupon approached the Karnataka High Court under Article 226 of the Constitution of India by filing separate writ petitions. The High Court  struck down  the said  sub-rule (2) of rule 5 on the ground  that it  was  repugnant  to  the  provisions  of section 7  of  the  Act  and  allowed  the  said  four  writ petitions. The  Appellants, who  are the  State of Karnataka and the  concerned Regional  Transport Officers,  have filed these appeals by special leave against the said judgment and order.      To  appreciate   what  the  High  Court  held  and  the arguments advanced  at the Bar before us, it is necessary to refer first to the relevant provisions of the Act. Section 2 of the  Act is  the interpretation  clause.  Clause  (9)  of section 2 prior to its amendment by Act 47 of 1978 defined a

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"heavy motor  vehicle" as  meaning "a  transport vehicle  or omnibus the registered laden weight of which, or a motor car or tractor  the  unladen  weight  of  which,  exceeds  11000 kilograms." By  the aforesaid  amending Act with effect from January 16,  1979, the  said clause (9) was substituted by a new clause  (9) and  clause (9A)  which define  "heavy goods vehicle" and  "heavy passenger  motor vehicle" respectively. We are  not concerned  with these  amendments in the present appeals. Clause  (13) of  section 2  defines a  "light motor vehicle" as  meaning "a  transport vehicle  or  omnibus  the registered laden  weight of which, or a motor car or tractor the unladen  weight of  which, or a motor car or tractor the unladen weight  of which,  does not  exceed 4000 kilograms." Clause (14)  of section  2 prior  to its  amendment  by  the aforesaid amending  Act defined  a "medium motor vehicle" as meaning "any motor vehicle other than a motor cycle, invalid carriage, light  motor vehicle, heavy motor vehicle or road- roller." By  the said amending Act, with effect from January 16, 1979,  Clause (14)  was substituted by a new clause (14) and clause  (14A) which  define "medium  goods vehicle"  and "medium  passenger   motor  vehicle"  respectively.  We  are equally not  concerned with  these amendments in the present appeals. Chapter  II of  the Act  deals  with  licensing  of drivers of motor vehicles. Section 3(1) of the Act prohibits any person  from driving a motor vehicle in any public place unless he holds an effective driving licence authorizing him to drive  the vehicle.  It further prohibits any person from driving a  motor vehicle  in any  public  place  as  a  paid employee or  from driving  a transport  vehicle  unless  his driving licence  specifically entitles him to do so. Section 4 prescribes the age limit in connection with the driving of motor vehicles.  Under that  section no person under the age of 18 shall 669 drive a motor vehicle in any public place and subject to the provisions of section 14 no person under the age of 20 years shall drive a transport vehicle in any public place. Section 7 deals  with the  grant of  driving licences.  The relevant provisions of  section  7  at  the  material  time  were  as follows:      "7. Grant of driving licence-           "(1) Any  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  may                apply  to   the  licensing  authority  having                jurisdiction in the area-           for the issue to him of a driving licence.      (3)  Where the  application is for a driving licence to           drive as  a paid  employee or to drive a transport           vehicle, or  where in any other case the licensing           authority for  reasons to  be stated in writing so           requires, the  application shall be accompanied by           a medical  certificate in  Form C, as set forth in           the First Schedule, signed by a registered medical           practitioner.      (5)  If, from  the  application  or  from  the  medical           certificate referred  to in  sub-section  (3),  it           appears that  the applicant  is suffering from any           disease or  disability  specified  in  the  Second           Schedule or  any other disease or disability which           is likely  to cause  the driving by him of a motor           vehicle of  the class which he would be authorized           by the  driving licence applied for to drive to be           a source  of  danger  to  the  public  or  to  the

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         passengers, the  licensing authority  shall refuse           to issue the driving licence.      (6)  No  driving   licence  shall   be  issued  to  any           applicant unless-                he  passes   to  the   satisfaction  of   the                licensing authority the test of competence to                drive specified in the Third Schedule:      (7)  The test  of competence  to drive shall be carried           out  in  a  vehicle  of  the  type  to  which  the           application 670           refers, and,  for the  purposes of  Part I  of the           test,-           (a)  a person  who passes  the test  in driving  a                heavy motor  vehicle shall  be deemed also to                have passed  the test  in driving  any medium                motor vehicle or light motor vehicle;           (b)  a person  who passes  the test  in driving  a                medium motor  vehicle shall be deemed also to                have passed  the test  in driving  any  light                motor vehicle.      (8)  When an  application has  been duly  made  to  the           appropriate licensing  authority and the applicant           has  satisfied  such  authority  of  his  physical           fitness and  of his  competence to  drive and  has           paid to  the authority a fee of eleven rupees, the           licensing authority  shall grant  the applicant  a           driving-licence   unless    the    applicant    is           disqualified under  section 4  for driving a motor           vehicle or  is for the time being disqualified for           holding or obtaining a driving licence:      It may  be mentioned  that in  view of the insertion of new clauses  (9),(9A),(14) and  (14A) in section 2 by Act 47 of 1978  sub-section 7 of section 7 has also been amended so as to  provide for  a person  passing the test for driving a heavy goods  vehicle, a  heavy passenger  motor  vehicle,  a medium goods  vehicle and  a medium passenger motor vehicle. As all these amendments are subsequent to the writ petitions filed by  the Respondents  and came  into force  with effect from January  16, 1979,  we are  not concerned  with them in these appeals.      The Second  Schedule to  the Act specifies the diseases and  disabilities  absolutely  disqualifying  a  person  for obtaining licence  to drive  a motor  vehicle  or  a  public service vehicle.  The Third  Schedule to the Act sets out in detail what  the test  of competence to drive should consist of. Section 21 of the Act confers rule-making power upon the State Governments.  Sub-section (1)  of that  section is  in general terms  and confers powers upon a State Government to make rules  for the  purpose of  carrying  into  effect  the provisions of  Chapter II  of the  Act. Without prejudice to the generality of the above power sub-section (2) of section 21 enumerates  specific matters  in respect of which a State Government  may  make  rules.  In  pursuance  of  the  power conferred by  section 21  the Government  of Mysore made the Mysore Motor Vehicles Rules, 1963, now known 671 as the  Karnataka Motor  Vehicles Rules, 1963. Chapter II of the said  rules deals with the licensing of drivers of motor vehicles. Rule 4 prescribes that the licensing authority for issue of  driving licences  shall be  the Regional Transport Officer of  the region concerned. Rule 6 confers powers upon the licensing  authority to  which applications are made for authorization  to   drive  a   transport  vehicle,  to  make enquiries regarding  the character  and antecedents  of  the

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applicant notwithstanding  that the applicant had previously passed the  test. Rule  5 of  this Chapter  deals  with  the authorization to  drive transport vehicles and the necessity for such  authorization. Under  sub-rule (1)  of rule  5  no person is  to drive  a transport  vehicle unless  a  licence shall have  been granted  or countersigned  by the licensing authority. Sub-rules  (2) and  (3) of  the said  rule  5  as originally made provided as follows:      "(2) No  authorization  to  drive  a  medium  transport           vehicle under  section 3  (1) of the Act, shall be           granted  unless   the  applicant   satisfies   the           licensing authority  that he  has had at least one           year’s experience  in driving  any motor  vehicle,           other than a motor cycle.      (3)  No  authorization   to  drive  a  heavy  transport           vehicle or a stage carriage or a contract carriage           other than  Motor Cab  and Auto-rickshaw  shall be           granted  unless   the  applicant   satisfies   the           licensing authority that he has had at least three           years’ experience  in  driving  any  medium  motor           vehicle.                Provided that  for grant  of authorization to           drive Motor  Cab, it  shall be  sufficient if  the           applicant has had two years’ experience in driving           any Motor  Vehicle other  than a  Motor Cycle, and           provided further  that for  grant of authorization           to drive  an Auto-rickshaw, no previous experience           in driving shall be necessary."      The validity  of sub-rules  (2) and  (3) of  rule 5 was challenged before  the Mysore  High Court  in Cyril  Lobo v. State of  Mysore &  Ors.(1) The  Court held that there was a clear repugnancy  between sub-rules (2) and (3) of rule 5 on the one hand and sections 4 and 7(8) of the Act on the other and that  for the  said reason the said sub-rules were ultra vires of the Act. 672      By Act  56 of  1969 with  effect from  October 1, 1970, clause (aa) of section 21(2) of the Act was substituted. The said substituted clause (aa) provides as follows:      "(aa)the minimum  qualifications  of  persons  to  whom           licences to  drive transport  vehicles are issued,           the time  within which  such qualifications are to           be acquired  by persons holding immediately before           the commencement of the Motor Vehicles (Amendment)           Act, 1969,  licences to  drive transport vehicles,           and the  duties, functions  and  conduct  of  such           persons."      Thereafter by  the aforesaid Notification No. HD 16 TMR 73 dated  July 7,  1976, the impugned sub-rule (2) of rule 5 was made by the State of Karnataka. It provides as follows:      "(2) No  authorisation to  drive a  heavy motor vehicle           shall be  granted unless  the applicant  satisfies           the licensing  authority concerned that he has had           at least  two  years  experience  in  driving  any           medium motor vehicles."      It  was   on  the  basis  of  this  sub-rule  that  the Respondents’ applications  for driving licence were rejected by the licensing authority.      At the  hearing of these appeals the correctness of the decision of  the Mysore High Court in Cyril Lobo v. State of Mysore &  Ors. was  not  challenged  before  us.  What  was, however, contended  by the  Appellants was that by reason of the substituted clause (aa) in subsection (2) of section 21, the  State   of  Karnatka   had  the   power  to   prescribe qualifications  of   persons  to   whom  licences  to  drive

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transport vehicles  are issued and that what the said rule 5 2) did  was to  prescribe additional qualifications which an applicant for  a licence  to drive a heavy motor vehicle was to possess  before he  became entitled  to the grant of such licence, and that by virtue of this specific power conferred upon the  State Governments by section 21(2) (aa), the State of Karnataka could validly prescribe the qualifications laid down in  Rule 5(2).  On behalf  of the  Respondents  it  was submitted that  rule-making power  could not be so conferred as to  enable the rule-making authority to travel beyond the scope of  the parent  Act  or  to  frame  a  rule  which  is repugnant or  contrary to an express provision of the parent Act. 673      The Karnataka  High Court  in its judgment under appeal has held  that: the  impugned rule  5(2) is repugnant to the provisions of  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 Lobo’s 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 contemplates 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 674 obtain unless he has previously passed the test in driving a

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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 said 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 inconsistent 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. Sections 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 675 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.      In the  result, these  appeals fail  and are  dismissed with costs.

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S.R.                                      Appeals dismissed. 676