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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

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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

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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

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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

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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

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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