Bakshi Tirath Ram and Another vs Registering Authority, J. and K.

J.N. Wazir, C.J.—These are two writ petitions impugning the notification of the Registering Authority published in the daily newspaper

Sandesh"" Jammu on 25-4-1959 specifying certain places in Jammu where the stage carriages could stand and prohibiting them to stand at any

other place except the specified places, and further prescribing time for the entry of the vehicles into the city for picking up passengers and load for

being carried to different places. These petitions are filed by Bakhshi Tirath Ram son of Bakhshi Guranditta resident of Mohalla Mastgarh Jammu,

who is the owner of a stage carriage vehicle No. J and K 6021 which plies on Jammu Poonch route, and by Sardar Avtar Singh resident of

Mohalla Mubarak Mandi, proprietor of Avtar Motor Garage, Shalamar Road, Jammu. They have prayed that a writ of certiorari be issued

quashing the notification passed by the Registering Authority and directing him not to implement such notifications. Both these petitions will be

disposed of by this order.

We will deal with the points raised by the Petitioners impugning the notification passed by the Registering Authority on 25-4-1959.

The Petitioners have alleged in their petitions that they are the State subjects and are carrying on business in Jammu. They have averred that the

notification infringes Article 19 of the Constitution of India inasmuch as it infringes the right of the Petitioners to hold property and carry on any

business or profession. It is further alleged that the notification is illegal, ultra vires and bad in law because it is discriminatory inasmuch as it

discriminates between stage carriages and hence violates Article 14 of the Constitution. Lastly it is urged that the Transport Controller has no

authority to pass such notifications under Rule 7-12 of the Motor Vehicles Rules, 2003, nor is he the prescribed authority validly appointed.

Avtar Singh Petitioner has further mentioned in his petition that the Respondent had no authority to order that no stage carriage may be stationed at

any place other than those specified by him. It is submitted that the Respondent by his notification prohibited the stage carriages to come up to his

(Petitioner's) garage and stand there till they are repaired and thus has infringed Article 19(1)(g) of the Constitution as he is unable; to carry on his

business of repairing motor vehicles.

We shall first deal with the question whether the Registering Authority was competent to pass the impugned notification.

The order purports to have been passed under Rule 7-12 of the Motor Vehicles Rules, 2003. It is contended on behalf of the Petitioners that it

was the Inspector General of Police who was competent to pass an order under Rule 7-12 of the Rules and not the Transport Controller.

In Rule 7-12 of the Rules which are made under the Motor Vehicles Act the Inspector-General of Police has been authorised by the

Government to make an order permitting any place to be used as a stand and without such an order no place should be so used. But by a

subsequent order of the Council No. 100-C of 1948 dated 30-4-1948 the Transport Controller was invested with the powers of the Inspector-

General of Police. That is to say, in Rule 7-12 instead of the Inspector-General of Police the authority appointed by the Government was the

Transport Controller.

The learned Counsel for the Petitioners argued that substituting the word ""Transport Controller in place of ""Inspector-General of Police"" in Rule

7-12. would amount to an amendment of the rule which ought to have been made in accordance with the provisions of Section 133 of the Motor

Vehicles Act read with Section 23 of the General Clauses Act.

It is not disputed that the Government u/s 76 of the Motor Vehicles Act has power to determine places at which motor vehicles may stand

indefinitely or for a specific period of time and also to determine the places at which public service vehicles may stop for a longer time than is

necessary for the taking up and setting down of passengers. The Government under this very section is competent to delegate its powers to any

other authority and under the rules it had delegated this authority to the Inspector-General of Police, but subsequently by Council Order referred to

above the Government invested the Transport Controller with this power. It amended Rule 7-12 to this extent that instead of the Inspector-

General of Police the Transport Controller was appointed as the competent authority.

Now the question is whether or not the provisions of Section 133 of the Motor Vehicles Act read with Section 23 of the General Clauses Act

have been complied with.

Section 133 provides that (1) every power to make rules by this Act is subject to the condition of the rules being made after previous

publication. (2) All rules made under this Act shall be published in the Government Gazette, and shall, unless some later date is appointed, come

into force on the date of such publication.

Section 23 of the General Clauses Act-lays down as under:

Where by any Act or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws

being made after previous publication, then the following provisions shall apply, namely:

(1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the

information of persons likely to be affected thereby;

(2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so

requires, in such manner as the Government prescribes;

(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;

(4) the authority having power to make the rules or bye-laws, and where the rules or bye-laws are to be made with the sanction, approval or

concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having

power to make the rules or bye-laws from any person with respect to the draft before the date so specified;

(5) the publication in the Government Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws

after previous publication shall be conclusive proof that the rule or bye-law has been duly made.

The contention of the learned Counsel for the Petitioners is that these provisions of Section 133 of the Motor Vehicles Act read with Section

23 of the General Clauses Act have not been complied with.

There is no averment in the petitions that the amendment of the rules appointing the Transport Controller in place of the Inspector-General of

Police (sic) the Registering Authority was made without complying with the provisions contained in Section 133 of the Motor Vehicles Act read

with Section 23 of the General Clauses Act. It was for the Petitioners to show that the proposed amendment was neither published nor were any

objections invited in regard to the amendment. They have not even alleged in their petitions that the formalities prescribed by law for amending the

rules were not complied with. If they had done so, the Respondent would have been in a position to snow that the provisions of Section 133

Motor Vehicles Act read with Section 23 of the General Clauses Act had been complied with.

In the absence of there being any averment in the petition, it is not open to the Counsel for the Petitioners to urge that amendment of the rules made

by Council Order No. 100-C of 1948 was not according to law. The words ""Inspector-General of Police"" contained in the rule, were substituted

by the words ""Transport Controller"" by the Council Order No. 100-C of 1948, and the Government acting as the legislature u/s 76 of the Motor

Vehicles Act was fully competent to amend the rule and empower the Transport Controller instead of the Inspector-General of Police to act as the

Registering Authority. There is therefore, no force in the contention that the Transport Controller, who was the Registering authority was not

competent to pass the impugned notification.

The next contention was that the notification is repugnant to Article 19(1)(g) of the Constitution of India according to which all citizens have

right to practise any profession, or to carry on any occupation, trade or business.

The Petitioners have not been prohibited from carrying on the business of plying stage carriage or running the motor garage for the repairs of

the motor vehicles. What has been done is that certain bus stands have been specified where the motor vehicles are allowed to stand and at

nowhere else they are allowed to do so. There is no prohibition that the motor vehicles should not be taken to the garage of the Petitioner Avtar

Singh for repairs.

What is mentioned in the notification of the 25th April as modified by a subsequent notification dated 16-5-1959 is that State carriages, public

carriers or private carriers should enter the limits of Jammu city between 11 A.M. to 3 P.M. and 9 P.M. to 2 A.M. for loading and unloading

purposes or for purposes of repairs in workshops or for refuelling and shall use Silk Factory-Hospital Road crossing for that purpose. By this

order special hours and special routes are prescribed for the vehicles to go for repairs and for refuelling. It cannot be said that certain prohibition is

imposed by the Registering Authority by which Avtar Singh Petitioner has been stopped from carrying on his business. The vehicles can go to the

workshop at the specified hours and by specified routes and can remain there till they are properly repaired.

It has been contended by the learned Counsel for the Petitioners that the vehicles are not allowed to stand in the workshop because that is not

the place specified as a stand under the notification of the Registering Authority.

In our opinion the impugned notification cannot be construed to mean that the motor vehicles which are under repairs in the Petitioner's garage

are to leave the garage without the repairs having been executed. There is no such direction in the notification that the vehicles under repairs are not

allowed to stand in the workshop beyond the specified hours. It may be that the officers implementing the impugned notifications are not correctly

construing the order and thereby may have turned out the vehicles before they had been properly repaired. If the directions under the notification

are not actually worked out properly the officers who have to carry out the directions are to be blamed and the subject can come to the Court not

for protection under Article 19 but for protection against the highhandedness or capricious act of the officer.

The Petitioner is challenging the notification issued by the Registering Authority under the provisions of the Motor Vehicles Act which can be

impugned if it is shown that the notification itself is capricious, arbitrary and illegal. The fact that the officer is not carrying out the directions in the

notification properly would not make the notification liable to be challenged. Moreover, the Petitioners have not challenged the Act or the Rules

made under the Act as being arbitrary or discriminatory. They have challenged the Notifications passed by the Registering Authority made under a

valid Act and the Rules under that Act which they cannot do unless they show that the notifications issued are mala fide. Reliance may be placed

on a ruling of the Rajasthan High Court, Dholpur Co-operative Transport and Multipurpose Union Ltd. v. Appellate Authority Rajasthan AIR

1955 Raj 19 at p. 28 in which it is laid down as under:

The Motor Vehicles Act is a complete Code in itself containing a complete and precise scheme for regulating the issues of permits and providing a

regular heirarchy of administrative bodies to deal with the regulation of transport by means of motor-vehicles. It is, in these circumstances, difficult

to see how the High Court can interfere with the decision of the Transport Authorities granting or refusing to grant permits in every case on the

ground that it is unreasonable, arbitrary or discriminatory. We take it that the learned Judges used these three words on the basis of Article 19(6)

and Article 4 of the Constitution.

X X X X

It is to our mind obvious that the test prescribed in Article 19(6) has to be applied to the law, and it has to be seen whether the law imposes

reasonable restrictions on the exercise of the fundamental right. Once it is clear that the law is reasonable, we find it difficult to hold that every

order passed by any authority constituted under the law has again to undergo the test of reasonableness, and if it fails to pass that test, it is liable to

be set aside as an unreasonable restriction on the fundamental right contained in Article 19(1)(g).

When therefore it is said that the decisions of the transport authorities granting or refusing to grant permits are liable to be reviewed by the courts

and set aside if they are unreasonable and arbitrary the obvious intention is to use Article 19(6) for testing every order under any law, even though

the law itself might have passed the test of reasonableness. We do not think that Article 19(6) was meant to be applied in this way.

The question arises whether or not the notification issued by the Registering Authority is mala fide.

There is no material on the record from which it can be gathered that the notification issued by the Registering Authority is mala fide. On the

other hand it is manifest from the provisions of the Motor Vehicles Act that the Transport Authority can in exercise of its regulatory power

conferred on it in the interest of the public, allow a stage carriage to run on a particular route subject to certain conditions laid down in the permit

and also fix certain places where the motor vehicles can stand, pick up and set down passengers and load and unload goods.

The Registering Authority, taking into account the nature of the locality and to enable pedestrians to pass and repass safely and comfortably, and

keeping the general public interest in view, has regulated. the movement of the stage carriages, public carriers or private carriers into the city of

Jammu at prescribed hours and has fixed stands at which they can stand indefinitely which, in our opinion, are by no means unreasonable

restrictions and therefore, the notifications do not offend Article 19(1)(g) of the Constitution of India.

Lastly it is contended that the notifications offend Article 14 of the Constitution of India.

On perusal of the notifications it will be manifest that no classification of any sort has been made by these notifications. All that has been done is

that parking places have been specified and vehicles have been permitted to enter the city of Jammu by specified routes at specified hours which

has, of course, been done in the interest of the public generally. There is no distinction or discrimination made among the same classes of vehicles.

It is pointed out by the learned Counsel for the Petitioner that there is a clear discrimination among the stage carriages as some of them are

classed as tourist buses whereas others are classed as stage carriages.

Our attention has been drawn to Section 48 of Motor Vehicles Act which provides that the Registering Authority may limit the number of stage

carriages in respect of which stage carriage permit may be granted for a specified route or for specified routes or for a specified area; (b) limit the

use of specified routes to stage carriages of a particular type or design and year of manufacture.

The learned Counsel for the Respondent has argued in reply that the tourist buses are stage carriages which are of recent manufacture whereas

the other stage carriages are of earlier manufacture. This again is, in our opinion, a reasonable classification which is permissible and there is no

discrimination made among the same class of stage carriages. Classification has been made among stage carriages on the basis of the year of

manufacture with a view to ensure their reliability and efficiency and under Article 14 of the Constitution reasonable classification is permissible vide

Mohd. Hanif Quareshi and Others Vs. The State of Bihar, in which it is laid down as follows:

It is now well established that while Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and

that in order to pass the test of permissible classification. two conditions must be fulfilled, namely, (i) the classification must be founded on an

intelligibe differentia which distinguishes persons or things that are grouped together from others left out of the. group and (ii) such differentia must

have a rational relation to the object sought to be achieved by the statute in question.

It has been argued by the learned Counsel for the Petitioners that the subsequent notification dated 10-5-1959 modifying the previous

notification dated 25-4-1959, having not been published as required by Rule 7-12 is ineffective. But we find that the subsequent notification

Cir/59/5/TR is published in the extraordinary Gazette dated 19-5-1959 whereby the registering authority has specified two more parking places in

the city of Jammu at items 5 and 6 of the said notification and it is submitted by the counsel for the Respondent that the restriction placed at item 6

with respect to the number of vehicles has been placed in view of the accommodation available at that place. Any stage carriage is permitted to

park at item No. 6 but the restriction is only this that the number at one time should not exceed 18. This restriction also appears to us to be quite

reasonable and in the interest of general public.

Moreover, it may be mentioned here that if the Petitioners feel aggrieved by the notifications issued by the Registering Authority under Rule 7-

12 of the Motor Vehicles Rules they have a right of appeal under Rule 7-24 of the said Rules. They have not availed of the right of appeal allowed

to them and, therefore, the extraordinary remedy by way of writs cannot be availed of by them when they have another remedy by way of appeal

available to them.

We find no merit in these writ petitions which are dismissed; but in view of the circumstances of the cases we leave the parties to bear their

own costs.