IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI W.P. NO.21991 OF 2019 C/W W.P.NOS.18343-18344/2019, AND W.P.NOS.28150-28151 OF 2019 (MV) IN W.P.NO.21991 OF 2019 BETWEEN:
SMT SHARADAMMA W/O LATE V. VENKATARAMANAPPA AGED ABOUT 66 YEARS, R/AT RAGUTTAHALLI VILLAGE & POST, CHINTAMANI TALUK, CHICKBALLAPUR DISTRICT 563 123.
(BY SRI. SUBASH REDDY V., ADV.) AND 1. THE STATE OF KARNATAKA TRANSPORT DEPARTMENT, M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, BANGLAORE 560 001.
REPRESENTED BY ITS PRINCIPAL SECRETAWRY, … PETITIONER 2. THE KARNATAKA STATE TRANSPORT AUTHORITY BMTC-TMCC BUILDING, K.H. ROAD, BANGALORE 560 027 REPRESENTED BY ITS SECRETARY 3. THE REGIONAL TRANSPORT AUTHORITY CHIKKABALLAPURA DISTRICT, CHIKKABALLAPURA 562 101 REPRESENTED BY ITS SECRETARY & RTO ... RESPONDENTS (BY SRI.SANDESH J. CHOUTA, AAG SRI.M.MUNIGANGAPPA, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE CIRCULAR DTD: 14.02.2019 IN (VIDE ANNEXURE-H) ISSUED BY THE R-1 AND ETC.
IN W.P.NOS.18343-18344 OF 2019 BETWEEN:
M VENKATESH AGE 58 YEARS, S/O LATE B P GANGADHAR SRI VENKATESHWARA MOTOR SERVICE NO.9-A, MADHAVANAGAR BENGALURU-560 001 … PETITIONER (BY SRI.M.E.NAGESH, ADV.) AND 1. THE STATE OF KARNATAKA BY ITS DEPUTY SECRETARY TRANSPORT DEPARTMENT M.S. BUILDING BENGALURU PIN-560 001 2. THE SECRETARY STATE TRANSPORT AUTHORITY TTMC BUILDING K H ROAD, BENGALURU-560 027 3. THE STATE TRANSPORT AUTHORITY TTMC BUILDING K H ROAD, BENGALURU-5600527 4. THE REGISTERING AUTHORITY & REGIONAL TRANSPORT OFFICER YESHWANTHPUR BENGALURU (NORTH) BENGALURU-560 022 5. THE INSPECTOR OF MOTOR VEHICLES OFFICE OF THE RTO YESHWANTHPUR BENGALURU-560 022 ... RESPONDENTS (BY SRI.SANDESH J. CHOUTA AAG SRI.M.MUNIGANGAPPA, HCGP) THESE WRIIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT ISSUED BY THE R-2 DATED: 21.03.2019 AS PER ANNEXURE0E AND AS PER ANNEXURE-F AND AS PER THE CIRCULAR ISSUED BY THE R-1 DATED: 14.02.2019 AS PER ANNEXURE-H AND ETC.
IN W.P.NOS.28150-28151 OF 2019 BETWEEN:
SMT SHANTHI SUBRAMANYAM W/O SRI P SUBRAMANYAM AGED ABOUT 40 YEARS, PROP: S P N MOTOR SERVICE, NO 7 11, MAHADESHWARA COLLEGE ROAD, KOLLEGAL CHAMARAJANAGAR DISTRICT - 571313 … PETITIONER (BY SRI.MADANAN PILLAI R., CGC) AND 1. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF SURFACE TRANSPORT, PARIVAHAN BHAVAN NEW DELHI - 110001 2. THE STATE OF KARNATAKA BY ITS DEPUTY SECRETARY TRANSPORT DEPARTMENT, MULTI -STORIED BUILDING , DR AMBEDKAR VEEDHI BANGALORE - 560001 4. THE REGIONAL TRANSPORT OFFICER CHAMARAJANAGAR MAIN ROAD, NEAR GALIPURAM CHAMARAJANAGAR - 571313 CHAMARAJANAGAR DISTRICT ... RESPONDENTS (BY SRI.SANDESH J. CHOUTA AAG SRI.M.MUNIGANGAPPA, HCGP) THESE WRIIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE CIRCULAR ISSUED BY THE R-2 DT: 14.02.2019 VIDE ANNEXURE-M AND THE ORDER/ENDORSEMENTS PASSED BY THE R-3 DATED: 18.06.2019 IN REFUSE TO RENEW THE PERMIT NO.26/99-00 VALID UPTO 19.07.2019 AND 27/99-00 VALID UPTO 19.07.2019 COVERED UNDER VEHICLE KA-10/A- 1760 AND KA-10/B/9696 VIDE ANNEXURE-K AND L AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 07.08.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, MADE THE FOLLOWING:
ORDER The question of law raised in all these petitions being common, all the petitions have been heard together and are being decided by this common order. For deciding these petitioners, it shall be refer the facts and pleadings in W.P.No.21991/2019.
2. In WP No.21991/2019, petitioner has questioned the validity of Circular dated 14.2.2019 vide Annexure-H and endorsement dated 7.3.2019 and order dated 24.5.2019 vide Annexures-J and J1 respectively. Similarly, in WP Nos.18343- 18344/2019, petitioner has assailed endorsement dated 21.3.2019 and circular dated 14.2.2019 vide Annexure-E and H respectively and in WP Nos.28150-28151/2019, petitioner has assailed endorsement dated 18.6.2019 and circular dated 14.2.2019 vide Annexures-K and M respectively.
3. In these bunch of petitions, common grievance of the petitioners is to set aside the circular dated 14.2.2019, by which State Government imposed conditions for the purpose of issuance of permit/renewal of permit only if transport motor vehicle is within fifteen years from the date of registration and further such of those permit holders whose transport motor vehicle is fifteen years old were permitted to replace such old vehicle to later model vehicles. Thus, each of the petitioners’ grievance relating to renewal of permit has not been allowed on the sole ground that their vehicle crossed fifteen years from the date of registration of their each vehicle. Further, official – respondent has issued endorsements/order in terms of circular dated: 14.02.2019. Hence, petitioners are before this Court.
4. In all these bunch of petitions, petitioners’ shove of arguments is that circular dated 14.2.2019 issued by the Government restricting issuance of permit only to such of those vehicles, which are within fifteen years and permitted to replace vehicle, such of those vehicle, which has crossed fifteen years from the date of registration by later model vehicle is without authority of law and contrary to Section 59 of the Motor Vehicles Act, 1988 (for short `Act, 1988’).
5. Learned counsel for the petitioners relied on the following provisions:
1. Sub-section 7 of Section 2 relates to ‘contract carriage’;
2. Sub-section 43 of Section 2 relates to ‘tourist vehicle’;
3. Section 59 relates to ‘power to fix the age limit of motor vehicle’;
4. Section 95 relates to ‘power of State Government to make rules as to stage carriages and contract carriages’.
5. Section 96 relates to ‘State Government to make rules for the purposes of this Chapter (Chapter – V);
6. Learned counsel vehemently contended that State Government has no power to issue any Rules or order or circular to cover the age limit of motor vehicle since such power is identified at Section 59 of the Act, 1988, which empowers only the Central Government. Officials/respondents’ contention that source of power under Section 72(2)(xxiv) of the Act, 1988, under this provision, there is no specific power vested with the State Government insofar as touching the issue relating to the age limit of motor vehicle. It was further contended that Rule 82 of the Central Motor Vehicles Rules, 1989 (for short `Rules, 1989’) assigns nine years in the case of a motor cab and eight years for other than motor cab, unless the motor vehicle is replaced. Therefore Central Government is the competent authority to fix the age of the motor vehicle. It is also contended that Central Government issued a draft Rules called the Central Motor Vehicles (Amendment) Rules, 2019 in respect of Rule 62(b) on 24.7.2019. Therefore, it is evident that power is vested with Central Government and not with the State Government. Thus, impugned circular dated 14.2.2019 and consequential endorsement/order are liable to be set aside.
7. Learned counsel for the petitioners cited the following decisions:
1) WP No.26988/2002 (DD 31.7.2002) in the case of D L Suresh –vs- Secretary, RTA, Mandya.
2) AIR 2018 Chattisgarh 158 in the case of Dr.Sandeep Jain and ors. –vs- State of Chhattisgarh and ors. (para-14);
8. On the other hand, Sri Sandesh J Chouta, learned Additional Advocate General for the respondents/State while supporting circular dated 14.2.2019 and endorsement/order relied on Sub- Sections 7, 40 and 47 of Section 2 of the Act, 1988 relate to contract carriage, stage carriage and transport vehicle respectively. Section 28 of the Act, 1988 relates to power of State Government to make Rules. Under Chapter-IV - relevant Section 56 relates to certificate of fitness of transport vehicle and Section 59 relates to power to fix the age limit of motor vehicle. Between Sections 56 to 59, Central Government can invoke the aforesaid provisions, whereas Chapter V relates to control of transport vehicles both by the Central and State governments.
9. Sub-section 47 of Section 2 of the Act, 1988 relates to ‘transport vehicle’; Section 66 relates to ‘necessity for permits’; Section 70 relates to ‘application for stage carriage permit’; Section 72 relates to ‘grant of stage carriage permit’.
10. Sub-Section 2 of Section 72 of the Act, 1988 empowers the Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under this Act, attach to the permit any one or more of the conditions in Clauses (xix) to (xxiv). Insofar as Clause (xxiv) empowers Regional Transport Authority to impose any other conditions, which may be prescribed. Similarly, under Sub- section 2 of Section 74 of the Act, 1988 relates to ‘grant of contract carriage permit’, which empower 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 condition in Clause (xiii) relates to any other conditions, which may be prescribed.
11. In view of the aforesaid provisions, State Government has issued circular dated 14.2.2019 stipulating conditions therein. Petitioners do not fulfill the conditions stipulated in the circular to the extent that their vehicles crossed fifteen years from the date of registration and further they have not sought for permit in respect of replacing the vehicle, like later model vehicle. Source of power of State Government is established in terms of the above provisions. Therefore, petitioners have not made out a case so as to interfere with circular dated 14.2.2019 and consequently endorsement/order issued to all the petitioners in respect of rejecting their claims for renewal of their permit are in order.
12. Learned Additional Advocate General relied on the following decisions:
1) WP No.10600/2019 (DD 2.4.2019) in the case of K B Subbaiah –vs- State of Karnataka and others;
2) (1980) 2 SCC 324 in the case of Subhash Chandra and others –vs- State of UP and others (paras – 3 and 4), wherein the Supreme Court has interpreted Section 51 of the Motor Vehicles Act, 1939, which is identical to that of Section 72 of the Act, 1988 that any other conditions could be imposed.
3) WP No.2237/2008 (DD 16.4.2009) in the case of Shivadhar Yadav –vs- State of Maharashtra;
4) WP No.2023/2018 (DD 5.2.2018) in the cae of Tipati Travels –vs- State of Madhya Pradesh.
13. Heard the learned counsel appearing for the parties.
14. Question for consideration in the present bunch of writ petitions is: whether State Government is empowered to issue circular relating to fixation of age of the vehicle for the purpose of issuing grant of stage carriage - permit under Section 72(2) read with (xxiv) of the Act, 1988 and to replace such of those vehicle, which has crossed fifteen years by replacing later model vehicle or not?
15. Before adverting to whether State is empowered to issue circular dated 14.2.2019, it will be fruitful to reproduce some of the reletant provisions of the Act, 1988 read with Rules, 1989.
Sub-section 7 of Section 2.-‘contract carriage’ means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf on a fixed or an agreed rate or sum-
(a) on a time basis, whether or not with reference to any route or distance; or (b)from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes-
(i) a maxicab; and (ii) a motor cab notwithstanding that separate fares are charged for its passengers;
Sub-section 40 of Section 2.- ‘stage carriage’ means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;
Sub-section 43 of Section 2.- ‘tourist vehicle’ means a contract carriage, constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf.
Sub-section 47 of Section 2.- ‘transport vehicle’ means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
Section 56. Certificate of fitness of transport vehicle.-(1) Subject to the provisions of sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section92), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made there under:
Provided that where the prescribed authority or the “authorized testing station’ refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
(2) The “authorized testing station” referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages.
(3) Subject to the provisions of sub-section 94), certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act.
(4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained;
[Provided that no such cancellation shall be made by the prescribed authority unless such prescribed authority holds such technical qualification as may be prescribed or where the prescribed authority does not hold such technical qualification on the basis of the report of an officer having such qualification] (5) A certificate of fitness issued under this Act shall, while it remains effective valid throughout India.
Section 59.- Power to fix the age limit of motor vehicle.- (1) The central Government may, having regard to the public safety, convenience and objects of this Act, by notification in the Official Gazette, specify the life of a motor vehicle reckoned from the date of its manufacture, after the expiry of which the motor vehicle shall not be deemed to comply with the requirements of this Act and the rules made thereunder:
Provided that the Central Government may specify different ages for different classes or different types of motor vehicles.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may, having regard to the purpose of a motor vehicle, such as, display or use for the purposes of a demonstration in any exhibition, use for the purposes of technical research or taking part in a vintage car rally, by notification in the Official Gazette, exempt, by a general or special order, subject to such conditions as may be specific in such notification, any class or type of motor vehicle from the operation of sub-section (1) for the purpose to be stated in the notification.
(3) Notwithstanding anything contained in section 56, no prescribed authority or authorized testing station shall grant a certificate of fitness to a motor vehicle in contravention of the provisions of any notification issued under sub-section (1).
Section 66. Necessity for permits.-(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a contract carriage:
Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a goods carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorize the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.
(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed:
[Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor.] (3) The provisions of sub-section (1) shall not apply-
(a) to an transport vehicle owned by the Central Government or a Stage Government and used for Government purposes unconnected with any commercial enterprise;
(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes;
(c) to an transport vehicle used solely for police, fire brigade or ambulance purpose;
(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;
(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;
(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;
(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;
[***] (i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;
(k) to any transport vehicle which has been temporarily registered under section 43 which proceeding empty to any place for the purpose of registration of the vehicle;
[***] (m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;
(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire-purchase, lease or hypothecation agreement and which owning to the default of the owner has been taken possession of by or on behalf of the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or (p) to any transport vehicle while proceeding empty to any place for purpose of repair.
(4) Subject to the provisions of sub- section 93), sub-section (1) shall, if the Statement Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver.
Section 70. Application for stage carriage permit.-(1) An application for a permit in respect of a stage carriage (in this Chapter referred to as a stage carriage permit) or as a reserve stage carriage shall, as far as may be contain the following particulars, namely:-
(a) the route or routes or the area or areas to which the application relates;
(b) the type and seating capacity of each such vehicle;
(c) the minimum and maximum number of daily trips proposed to be provided and the time-table of the normal trips.
Explanation.- For the purposes of this section 72, section 80 and section 102, “trip” means a single journey from one point to another, and every return journey shall be deemed to be a separate trip;
(d) the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions;
(e) the arrangements intended to be made for the housing, maintenance and repair of the vehicles, for the comfort and convenience of passengers and for the storage and safe custody of luggage;
(f) such other matters as may be prescribed.
(2) An application referred to in sub- section (1) shall be accompanied by such documents as may be prescribed.
Section 71.- Procedure of Regional Transport Authority in considering application for stage carriage permit.-
(1) xxxxxx (2) xxxxxx (3)(a) 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 Authority and a Regional Transport Authority to limit the number of stage 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.
72. Grant of stage carriage permit-
(1) Subject to the provisions of section 71, a Regional Transport Authority may, on an application made to it under section 70, grant a stage carriage permit in accordance with the application or with such modification as it deems fit or refuse to grant such a permit.
Provided that no such permit shall be granted in respect of any route or area not specified in the application.
(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-
(i) that the vehicles shall be used only in a specified area, or on a specified route or routes;
(xxiv) any other conditions which may be prescribed.
74. Grant of contract carriage permit-
(1) Subject to the provisions of sub- section (3) a Regional Transport Authority may, on an application made to it under section 73, grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:
Provided that no such permit shall be granted in respect of any area not specified in the application.
(2) 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, namely-
(i) that the vehicles shall be used only in a specified area or on a specified route or routes;
95. Power of State Government to make rules as to stage carriages and contract carriages-
(1) A State Government may make rules to regulate, in respect of stage carriages and contract carriages and the conduct of passengers in such vehicles.
96. Power of State Government to make rules for the purpose of this Chapter-
(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.
(2) Without prejudice to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following matters, namely-
(i) the period of appointment and the terms of appointment of and the conduct of business by Regional and State Transport Authorities and the reports to be furnished by them;
(xxxiii) any other matter which is to be or may be prescribed.
Rule 62 of Rules, 1989.- Validity of certificate of fitness.-(1) A certificate of fitness in respect of a transport vehicle granted under section 56 shall be in Form 38 and such certificate when granted or renewed shall be valid for the period as indicated below:
(a) New transport vehicle Renewal of certificate of fitness in respect of vehicles mentioned in (a) above [xxx) Renewal of certificate of fitness in respect of E-rickshaw and E-cart Renewal of certificate of fitness in respect of vehicles covered under rule 82 of these rules Fresh registration of imported vehicles two years one year three years] one year] Same period as in the case of vehicles manufactured in India having regard to the date of manufacture:
82. Tourist permits (1) An application for the grant of permit in respect of a tourist vehicle (hereinafter referred to in these rules as a tourist permit) shall be made in Form 45 to the State Transport Authority.
(2) 1[* * *] 2[3[ (a)] A tourist permit shall be deemed to be invalid from the date on which the motor vehicle covered by the permit completes 9 years in the case of a motor cab and 8 years where the motor vehicle is other than a motor cab, unless the motor vehicle is replaced];
3[(b)] Where a vehicle covered by a tourist permit is proposed to be replaced by another, the latter vehicle shall not be more than two years old on the date of such replacement.
Explanation : For the purposes of this sub-rule, the period of 2[9 years or 8 years] shall be computed from the date of initial registration of the motor vehicle.
16. Question for consideration in these petitions is whether State is empowered issue circular dated: 14.02.2019 is in order or not? The ambit of Section 72(2) of Act, 1988 came up for consideration before the Supreme Court in the case of K M Ismeth Ummar –vs- Regional Transport Authority reported in (2011) 15 SCC 288 (para-5), wherein the Supreme Court interpreted Section 72(2) of the Act, 1988 to the extent that Regional Transport Authority may grant permit for stage carriage of a ‘specific description’ which includes age of the vehicle also in the public interest. Para-5 of the decision read thus:
“5. Under Section 72(2) of the Motor Vehicles Act, 1988 the Regional Transport Authority may grant the permit for a stage carriage of a “specified description”. The expression “specified description” is very wide and, in our opinion, this would include fixing the age of the vehicle also. Restricting the age of the vehicle for the grant of permit for a stage carriage is obviously in the public interest because old vehicles can cause accidents and inconvenience and, therefore, the authorities under the Motor Vehicles Act, 1988 are perfectly justified in placing such a restriction for grant of the permit.”
17. Relevant provisions to interfere with circular dated 14.2.2019 are Sections 56 and 59 of the Act, 1988 under Chapter IV. Section 59 empowers the Central Government to fix the age limit of motor vehicle, whereas under the very same Chapter, Sections 64 and 65 empower the Central Government and State Government to make Rules, whereas in Chapter V, relevant provision is Section 72 relates to ‘grant of stage carriage permit’ and Section 95 empowers the State Government to make Rules as to stage carriages and contract carriages. Further, Section 96 empowers the State Government to make rules for the purposes of this Chapter (Chapter-V). Reading of Chapters-IV and V relate to registration of motor vehicle and control of Transport Vehicle. The issue relating to grant of stage carriage permit and contract carriage permit fall under Chapter-V. Sub-section 2 of Section 72 empowers the Regional Transport Authority to decide to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under this Act, attach to the permit any one or more of the conditions stipulated therein. Clauses (i) to (xxiii) of Sub- section 2 Section 72 are not related to age of determination of vehicle or replacing fifteen years old vehicle to that of later model vehicle. Even though Clause (xxiv) stipulates that any other conditions which may be prescribed. If the State Government intends to invoke those Clauses in such an event it is necessary and proper to issue Rules as is empowered under Sub-section 2 of Section 72 of the Act, 1988. Therefore, issuance of circular dated: 14.02.2019 by the respondent no.1 is without authority of law. At the best, State can frame rules instead of issuing circular/order to impose conditions that permit vehicle which crosses 15 years shall not be renewed, such vehicle could be replaced by later model vehicle.
18. On this score read with the decision of the supreme court in the case of K M Ismeth Ummar –vs- Regional Transport Authority (supra), state is empowered to impose any other conditions under Clause (xxiv) of sub section 2 of section 72 of the act, 1988.
19. Learned counsel for the petitioners vehemently relied on decisions rendered in following cases:-
a) D.L.Suresh Vs. The Secretary, Regional Transport Authority, Mandya and others disposed off on 31.07.2002 in W.P.No.26988 of 2002 (Para 4).
b) Dr.Sandeep Jain and Ors. Vs. State of Chattisgarh and Ors. Reported in AIR 2018 CHHATTISGARH 158 in Para 14.
In so far as D.L.Suresh’s Case is concerned, it is to be noted that it is no more good law in view of the decision of the Supreme Court in K M Ismeth Ummar cited at Supra.
Similarly in the case of Dr.Sandeep Jain cited Supra, Court has not taken note of the decision rendered in K M Ismeth Ummar. Hence, the decisions cited on behalf of the petitioners have no assistance to their case.
20. Prima facie, Circular dated 14.2.2019 would be contrary to Sub-Rule (b)(i) of Rule 62 of Rules, 1989 relates to renewal of a certificate of fitness in respect of transport vehicle upto fifteen years old – two years for vehicles upto eight years old and one for vehicles older than eight years. Sub-Rule (ii) renewal of certificate of fitness in respect of transport vehicle older than fifteen years – six months. It is to be noted that for the purpose of grant of permit like stage carriage and contract carriage permit would be issued under Sections 72 and 74 of the Act, 1988. Certificate of fitness is one of the criteria for issuance of permit. In such eventuality, there should be prohibition Clause in issuing certificate of fitness to such transport vehicle which has crossed 15 years. In other words, there is no age criteria of the transport vehicle for issuance of fitness certificate. On the otherhand, by means of Circular dated 14.2.2019, State Government has incorporated grant of permit both under stage carriage and contract carriage is impermissible in the event of transport vehicle is more than fifteen years old. Therefore, this Court is of the view that unless and until, amendment is brought to Section 56, which relates to certificate of fitness of transport vehicle and appropriate rules under sub-section (2) of Section 72 of the Act, 1988. Hence, question of imposing conditions for issuance of stage carriage and contract carriage permit restricted to such of those transport vehicle, which have not completed fifteen years from the date of registration would be absurd. Further, if conditions imposed in Circular 14.2.2019 are traceable under Sections 72(2)(xxiv) and 74(2)(xiii), in such eventuality subject to any Rule that may be made under the Act, 1988 in terms of Sub-Section 2 of Section 72 and Sub-Section 2 of Section 74 and not by means of issuing Circular.
21. Specified and Description under Sub- Section 2 of Section 72 of the Act, 1988 by means of Rule only, similarly under Sub-Section 2 of Section 74 of the Act, 1988 and not by issuing circular.
That apart, under Sections 95 and 96 of the Act, 1988, provides for framing of Rules, power of State Government to make Rules as to stage carriage and contract carriage and power of State Government to make Rules for the purpose of this Chapter (Chapter-V). Admittedly, circular cannot substitute a mandate of Rules in terms of aforementioned provisions. Supreme Court time and again held that authorities are required to follow strictly statutes and there cannot be any side tracking of a statute. In the present case, statutes empower to State Government for framing of Rules. Such of those conditions, which are not covered, were permitted to prescribe – specified description by means of issuing Rules. Consequently, impugned Circular dated 14.2.2019 and further action in issuing impugned endorsement are liable to be set aside. On this score read with the decision of the Supreme Court in the case of K M Ismeth Ummar – vs- Regional Transport Authority (supra), State is empowered to impose any other conditions under Clause (xxiv) of Sub-section 2 of Section 72 of the Act, 1988.
22. Contention of the petitioners that State is not empowered to issue circular and so also impose conditions that fifteen years old vehicles are not permitted to issue permit route and it can be replaced by later model vehicle is hereby accepted.
RESULT (i) In view of the above analysis on both factual and legal aspects circular dated 14.2.2019 and consequential endorsements dated 7.3.2019 and dated 24.5.2019 (Annexures-
J and J1 in WP No.21991/2019), both endorsements dated 21.3.2019 (Annexures- E and F in WP Nos.18343-18344/2019) and both endorsement dated 18.6.2019 (Annexures-K and L in WP Nos.28150 – 28151/2019 are set aside.
(ii) Respondents/State is permitted to frame appropriate Rules if it is warranted while invoking Sub-Section 2 of Section 72 of the Act, 1988 read with the decision of the Supreme Court in the case of K M Ismeth Ummar –vs- Regional Transport Authority (supra), but issuance of circular dated: 14.02.2019 is without source of power. Supreme Court in the case of Captain Sube Singh –vs- Lt. Governor of Delhi reported in (2004) 6 SCC 440 held as under:
“29. In Anjum M.H. Ghaswala [CIT v. Anjum M.H. Ghaswala, (2002) 1 SCC 633] a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka [(2001) 4 SCC 9 : 2001 SCC (Cri) 652] .) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof.”
Writ petitions stand allowed in the above terms. No order as to cost.
Sd/- JUDGE Bkm/Brn