K.B. Balakrishna Rai vs Karnataka State Transport Appellate Tribunal and Another

Swami, J.-As this petition can be disposed of on a short point rule is issued and it is heard for final disposal.

In this petition under Articles 226 and 227 of the Constitution, the petitioner has sought for quashing the endorsement dated 30-11-1988 passed by the Secretary, Regional Transport Authority, Dakshina Kannada (in short RTA) in No. RTA B1. REPL. 147/88-89 (Annexure-A) rejecting the application filed by the petitioner for permission to replace the vehicle bearing Registration No. CTA 9519 of 1987 model with the vehicle bearing Registration No. KRC 1809 of 1983 model. He has also sought for quashing the order dated 30-12-1988 passed by the Karnataka State Transport Appellate Tribunal (in short the Tribunal), Bangalore in R.P.No. 136/88 (Annexure-B) affirming the endorsement issued by the Secretary, RTA.

It is contended on behalf of the petitioner that there is no rule prescribing that a particular model vehicle should be provided by a permit holder; that as long as the vehicle is roadworthy, there is no bar contained either in the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) or in the Karnataka Motor Vehicles Rules, 1963 (hereinafter referred to as the Rules) prohibiting the permit holder to cover the permit by such vehicle irrespective of the year of model of the vehicle; that in the absence of any rule prescribing a particular model of the vehicle as per sec. 48(3)(xxiii) of the Act, the R.TAs. are exercising the discretion arbitrarily and there is no uniform pattern adopted either for granting a permit on a condition that a particular year model vehicle should be covered by the permit or should be replaced in the event the replacement is sought. It is also further submitted that even when a renewal is sought a condition is imposed that a particular year model vehicle should be covered by the permit, with the result it is causing more hardship to the operators of motor vehicles. It is submitted that as per Section 38 of the Act, Certificate of Registration for a Transport Vehicle is valid for 15 years, therefore when the Registration Certificate is valid for a period of 15 years and the vehicle is certified as roadworthy, there is no prohibition for allowing such vehicle to cover the permit irrespective of the fact that the vehicle is of old model. The learned counsel for the petitioner has also placed reliance on a decision of this Court in Sadananda Naik v Regional Transport Authority, Dakshina Kannada (W.P. 11815/1988 decided on 18-11-1988).

On the contrary, the learned Government Pleader Sri P.R. Ramesh submitted that, under Section 47(1) (a) of the Act, the RTA or the STA as the case may be, is required to safeguard the interest of the public generally and in order to ensure, and safe guard the interest of the public it is necessary for the RTA or STA, as the case may be, to impose a condition that the permit should be covered by the latest model vehicle. The learned Government Pleader has placed reliance on the decisions of the Supreme Court in S.K. Bhatia & Others v State of U.P. & Others (AIR 1983 S.C. 988) and Subhash & Others v State of U.P. &Others (AIR 1980 S.C. 800). The learned Government Pleader has also placed reliance on a decision is K.J. Sheriff v The R.T.A. & Another (W.P. 8630/1988) of this Court and submitted that the very learned Judge who decided W.P. 17580/87 reported in ILR 1988 Kar. 2425, has observed in W.P. 8630/1988 that the decisions of the Supreme Court in AIR 1976 S.C. 2333, AIR 1980 S.C. 800 and AIR 1983 S.C. 988 were not brought to the notice of the Court and without noticing them W.P. 17580/87 was decided.

In the light of the aforesaid contentions the points that arise for consideration are:

1) whether in the absence of the Rule framed by the State Government under Section 48(3) (xxiii) of the Act is it open to the R.T.A. or STA to impose a condition that a permit should be covered by a particular model vehicle?

2) If the answer to the first point is in the affirmative what is the criteria for exercising the power to impose such condition?

POINT NO. 1

Unlike any other enactments the Act provides at the end of each Chapter a provision for framing the Rules to carry out the objects of the Chapter. Accordingly Section 48(3) (xxiii) also specifically provides that any other condition may be prescribed. Prescribed under the Act means prescribed by Rules which are to be framed by the State Government. The Rules framed by the State Government do not contain any provision as to imposing of condition for covering the permit with a particular model vehicle. Therefore the contention raised on behalf of the petitioners is that in the absence of any Rule, it is not at all open to the RTA or STA, as the case may be, to impose a condition that the permit should be covered by a particular model vehicle. It appears to me that this contention cannot be upheld. On the contrary, as already pointed out, it is contended on behalf of the respondents that it is one of the considerations for grant of the permit and as such it is covered by Section 47(1)(a) of the Act which provides that the RTA shall, while considering an application for a stage carriage permit, have regard to several matters referred to in sub-section (1) and one of the matters is to safeguard the interest of the public generally. The matter is no more res integra. The Supreme Court had on occasion to consider in Ikram Khan v The State Transport Appellate Tribunal & Others, (AIR1976 S.C. 2333) the provisions of Clause(a) of Section 47(1) of the Act. The Supreme Court observed thus:

"The fact that the respondent 3 had a later model of vehicle being 1965 model whereas the appellant had only a 1962 model vehicle titled the balance in favour of the respondent No. 3. This aspect can well arise under clauses(a) and (b) of Section 47. We are unable to say that the relevant considerations under Section 47, on the facts and circumstances of the grant of the particular permit, were not kept in view by the Tribunal in considering the appeal."

Again in Subhash Chandra & Others v State of Uttar Pradesh and Others (AIR 1980 S.C. 800) while considering the provisions of Section 51(2)(x) which are in peri material with the provisions of Section 48(3)(xxiii), the Supreme Court observed thus:

"4. Section 51(2)(x) authorises the impost of any condition, of course, having a nexus with the statutory purpose. It is undeniable that human safety is one such purpose. The State''s neglect in this area of policing public transport is deplorable but when it does act by prescribing a condition the Court cannot be persuaded into little legalism and harmful negativism. The short question is whether the prescription that the bus shall be at least a seven year old model one is relevant to the condition of the vehicle and its passengers'' comparative safety and comfort on our chaotic highways. Obviously, it is, the older the model, the less the chances of the latest safety measures being built'' into the vehicle. Every New Model incorporates new devices to reduce danger and promote comfort. Every new model assures its age to be young, fresh and strong less likely to suffer sudden failures and breakages, less susceptible to wear and tear and mental fatigue leading to unexpected collapse. When we buy a car or any other machine why do we look for the latest model? Vintage vehicles are good for centenarian display of the curious and cannot but be mobile menaces on our notoriously neglected highways. We have no hesitation to hold, from the point of view of the human rights of road users, that the condition regarding the model of the permitted bus is within jurisdiction, and not to prescribe"such safety clauses is abdiction of statutory duty."

Thus in this case also the Supreme Court has held that imposition of such a condition as to the nature of the vehicle to cover the permit has anexus with the statutory purposes.

In S.K. Bhatia v State of Uttar Pradesh (AIR 1983 S.C. 988) the Supreme Court again considered Section 51(2)(x) of the Act and also referred to its earlier decision in Subhash Chandra''s case. The proposition laid down in paras 4 and 5 of Subhash Chandra''s case was approved and it was specifically held that:

"Another submission was that the authority competent to impose the condition, was not the Regional Transport Authority, but the competent authority under Section 4 of the Uttar Pradesh Motor Vehicles (Special Provisions) Act, We have already referred to Subhash Chandra''s case, (AIR 1980 SC 800) where it has been held that the source of power for imposing condition No. 18 is Section 51(2)(x) of the Motor Vehicles Act. Under Section 51(2)(x), the authority empowered to impose the condition is the Regional Transport Authority. Section 4 of the Uttar Pradesh Motor Vehicles (Special Provisions) Act deals with the authorisation of use of private mini buses as stage carriages within specified limits covered by an approved scheme and has nothing whatever to do with the imposition of conditions on mini buses plying as contract carriages. It was suggested that the real object of Condition No. 13 is not the safety of the passengers as thought is Subhash Chandra''s case, but to eliminate mini buses from the field. There is no basis at all for this submission. As we said, there is no substance in any one of these submissions advanced by the petitioners. All the writ petitions are, therefore, dismissed with costs."

The Supreme Court also specifically referred to Section 38 of the Act and repelled the contention and approved the proposition is Subhash Chandra''s case that such a condition as an extra measure, is a further insurance against the machine failure and cannot contradict the fitness provision. Thus it is now fairly settled that irrespective of the fact that no rule is framed under Section 48(3)(xxiii) of the Act it is still open to the R.T.A. or STA as the case may be, to impose a condition regarding the Model of the vehicle while granting or renewing the permit or granting variation of conditions of the permit.

In the light of the aforesaid decisions of the Supreme Court the two decisions of this Court relied upon by the learned counsel for the petitioner i.e. I.L.R. 1988 Kar. 2425 and in W.P. 11815/88 cannot of any assistance to the petitioner. In W.P. 8630/1988 Balakrishna, J., who decided the case reported in ILR 1988 Karnataka 2425 has observed that the said decision was rendered without noticing the aforesaid decisions of the Supreme Court the relevant portion of it is as follows:

"4. In Writ Petition No. 17580 of 1987, decided on 17-3-1988, this Court has accepted the contention that the imposition of the condition of compelling replacement of the vehicle covered by a permit, by a particular model of the vehicle is without the authority of law. In the said case, during the course of the arguments the rulings of the Supreme Court in AIR 1976 S.C. 2333, AIR 1980 S.C. 800"and AIR 1983 S.C. 1988 were not brought to the notice of this Court by any of the counsel appearing for the parties in the said writ petition. Since none of these rulings were pointed out, nor the principle laid down in those decisions was canvassed, the latest view of the Supreme Court went unnoticed."

Thus it is clear that the Balakrishna, J., himself in his later decision in W.P. 8630 of 1988 did not subscribe to the view expressed in ILR 1988 Karnataka 2425 having regard to the fact that the decision of the Supreme Court having a bearing on the point were not brought to his Lordship''s notice.

As far as the decision in Sadanandanaik''s case is concerned, no doubt Balakrishna, J., has quashed the conditions imposed by the RTA under Section 51(2)(x) of the Act on the ground that the conditions ought to have been prescribed by the Rules as provided under Section 51(2)(x) of the Act and as the State Government has not prescribed such conditions by framing the Rules it is impermissible for the RTA to impose such conditions. One of the conditions imposed by the RTA was in respect of the model of the vehicle. In this regard it is relevant to notice that as far as the matter falling under Section 47 is concerned the Supreme Court has specifically considered in the aforesaid decisions and has held that such a condition falls under Section 47(1)(a) and (b) of the Act. It is not in dispute that the provisions similar to Section 47(1)(a) are not found in Section 51(2) of the Act which relates to contract carriages. Therefore, it is not possible to hold that the decision in Sadanandanaik''s case governs the point under consideration. For the reasons stated above, point No. 1 is held in the affirmative.

8.POINT NO. 2: There is no doubt that the RTA or the STA has power to impose a condition that the permit should be covered by a particular model vehicle either at the stage of granting a stage carriage permit or renewing or granting variation of the conditions of the permit. But the point for consideration is whether the RTA or STA can, without any reason, impose a condition that the permit should be covered by the latest model vehicle. It is no doubt true that the latest model vehicle will definitely be superior and better in many respects than older model vehicles and will safeguard the interest of the travelling public in as much as the vehicle being new one and not having been used for a long time and fitted with the latest parts, will ensure safety and comfort to the travelling public But at the same time one has to take into consideration of the fact that a motor vehicle which is normally registered for a period of 15 years cannot be held to be unfit within 5 or 6 or 10 years when the Registration Certificate itself is for a period of 15 years, unless the actual condition of the vehicle warrants it. Investment for the vehicle is also one of the factors to be taken into consideration and no motor vehicle operator invests unless he is able to recover the invested amount. The condition that a permit should always be covered by the latest model vehicle will work out a great hardship, in as much as a registered owner of the vehicle will not be able to use the vehicle after a year, because next year the vehicle becomes an old model vehicle; even though it may be fit in all respects and fitted with all the amenities. Under these circumstances keeping in view the interest of the travelling public and also the fact that a very large sum is required for providing a vehicle and no operator is expected to invest huge money unless he is able to recover the same, it appears to me that the safest course for the R.T.A. or the STA, as the case may be, to adopt, is to satisfy itself in each case, irrespective of the model of the vehicle, whether, the vehicle is roadworthy, fitted with modern amenities. Whether the engine fitted to the vehicle is in a sound condition, the vehicle in all respects ensures safety, security and comfort of the travelling public. If the vehicle satisfies all these conditions, the year of model of the vehicle by itself should not be taken as a deciding factor as long as the vehicle is not more than 10 years old. Thus if the vehicle becomes more than 10 years old, the permit holder has to necessarily replace it. Point No. 2 is answered accordingly.

In the light of the finding recorded on point No. 2, this writ petition is entitled to succeed because neither the RTA nor the STA has examined this aspect of the matter from this angle. Accordingly, the writ petition is allowed. The endorsement dated 30-11-1988-Annexure-A-issued by the Secretary, RTA, Dakshina Kannada, Mangalore and the order dated 30-12-1988 passed by the Tribunal in R.P.136/88-Annexure-B-are hereby quashed. The proceeding is remitted to the Secretary, RTA, Dakshina Kannada, Mangalore, with a direction to consider the application of the petitioner in the light of the observations contained in this order.

Sri Ramesh, H.C.G.P. is permitted to file his memo of appearance on behalf of respondents in six weeks.

Writ Petition allowed.