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Judgment
The issue which arises for consideration in these batch of Writ Petitions is as to whether the amendment incorporated in Rule 164 of Madhya Pradesh
Motor Vehicles Rules, 1994, w.e.f. 05.01.2012 is prospective or have retrospective effect. The petitions were analogously heard and are decided by
this common order.
2- Petitioners are owners of various motors vehicles registered with the Transport Department, State of Madhya Pradesh. Registration, as is evident
from the record, is prior to 05/01/2012, the date when Rule 164 was substituted.
3- The contention on behalf of petitioners is that the Motor Vehicles Act, 1988 (hereinafter referred to as, “the Act of 1988â€) is a central
enactment and for registration of a vehicle two-fold requirements are to be adhered to, namely, in respect of construction of motor vehicles and
second as to maintenance.
4- It is urged that as regard to construction of body of the motor vehicle, section 111 of the Act of 1988 makes a provision with respect to power of
the State to make the Rules. It is urged that in exercise of such powers, State Government framed the Rules, viz, Madhya Pradesh Motor Vehicle
Rules, 1994 brought in vogue vide notification No. F-8-1-90-VIII, dated 04/08/1994, published in M.P. Rajpatra (Asadharan) dated 06.08.1994;
whereunder, Rule 164 provided that “every entrance and exit of a public service vehicle other than a motor car shall be at least fifty-three
centimeters in width and of sufficient height.†It is urged that requirement of construction of body is seen at the time of registration of vehicle and
accordingly the petitioners purchased the motor vehicle and got built the same in accordance with the Rules in vogue. It is contended that on their
presentation before the Regional Transport Officer, Gwalior, who being satisfied that the construction of vehicles are in consonance with the Rules,
1994, issued separate fitness certificate and registration certificate to each and every vehicle. It is contended that with the amendment of Rule 164
w.e.f. 05/01/2012 the registration of all these vehicles cannot be held to be invalid merely because they do not meet with the norms brought in vogue
w.e.f. 05/01/2012. It is urged that the new norms would be applicable to only such vehicles which are presented for the first time after 05/01/2012 for
registration. It is urged that the existing registered owner of the vehicle, as on 05/01/2012, cannot be forced to change the physical condition of the
vehicles to be brought in consonance with amended Rule 164; as a right having vested in them it cannot be taken away from a retrospective date. It is
urged that though the provision does not mention that it is effective from a retrospective date, however, with the Authorities not granting permit for
want of fitness certificate, without changing the physical structure, the provision is made effective retrospectively. It is also contended that the
vehicles are engaged only in relation to spare vehicles, services, wherein the requirement of two doors is not necessary, as the passenger, at the time
of boarding have to enter and sit at each station and get down at destination and on return they have to exit at their schedule destination.
5- On these contentions, petitioners seek declaration that Rule 164 of the Rules of 1994 brought in vogue w.e.f. 05/01/2012 are prospective. Reliance
is placed on the decisions in C. Gupta Vs. Glaxo-Smithkline Pharmaceuticals Ltd. (2007) 7 SCC 171, National Insurance Company Ltd. Vs. Annappa
Irappa Nesaria Alias Nesargi and Others (2008) 3 SCC 464 & Jawahar Singh Alias Bhagat Ji Vs. State of GNCT of Delhi (2009) 6 SCC 490 to bring
home the submissions that the vested right cannot be taken away from a retrospective date.
6- Respondents/State on its turn has to submit that there are two kinds of certificates under the statute, viz, Certificate of Registration and Certificate
of fitness. That Registration Certificate is as to ownership of the vehicle, whereas the certificate of fitness is to authenticate the vehicle as road
worthy, in other words, fit to be operated on roads. It is contended that with the incorporation of amendment in Rule 164 w.e.f 05/01/2012, the
fitness certificate will be granted to only such vehicles which meet the parameter thereof. It is contended that amendment in Rule 164 has been made
in public interest. It is urged that two doors are necessary for public carriage vehicle as they are being used for carrying school children and factory
workers also. On these contentions, respondents seek dismissal of writ petitions.
7- Considered rival submissions.
8- Sub-section (35) of section 2 of the Act of 1988, defines “public service vehicle†means “any motor vehicle used or adapted to be used for
the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage.†9- That sub-section (7) of
section 2 of the Act of 1988, defines “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 authorised by him in this behalf on a fixed or an
agreed rate or sum â€" (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 â€" (i) a maxicab; and (ii) a
motorcab notwithstanding that separate fares are charged for its passengers; â€
10- Whereas sub-section (40) of section 2 of the Act of 1988, defines “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.â€
11- The expression “transport vehicle†is defined under sub-section (47) of section 2 of the Act of 1988, to mean “a public service vehicle, a
goods carriage, aneducational institution bus or a private service vehicle.â€
12- Sub-section (28) of section 2 of the Act of 1988 defines “motor vehicle†or “vehicle†means “any mechanically propelled vehicle
adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which
a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in
a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty-five cubic
centimeters] .â€
13- That chapter IV of the Act of 1988 deals with the registration of motor vehicles. Section 39 whereof envisages that no person shall drive any
motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the
vehicle is registered in accordance with chapter IV.
14- Section 56 of the Act of 1988 lays down provision regarding certificate of fitness of transport vehicles. Sub-section (1) whereof stipulates that
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-section (2), to the effect that the vehicle complies for the time being with all
the requirements of this Act and the rules made thereunder. Â
15- Sub-sections (3) and (4) of Section 56 of the Act of 1988, provides that :
“(3) Subject to the provisions of sub-section (4), 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.Â
(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
qualifications.]â€
16- That clauses (m) and (n) of section 64 of the Act empowers the Central Government to make rules to provide for the “(m) form in which the
certificate of fitness shall be issued under sub-section (1) of Section 56 and the particulars and information it shall contain†and “(n) the period for
which the certificate of fitness granted or renewed under section 56 shall be effectiveâ€. Similar powers are conferred on the State Government to
make rules for carrying into effect the provisions of chapter IV of the Act. Under clause (d) of sub-section (2) of Section 64 empowers the State
Government to make Rules pertaining to “issue or renewal of certificate of registration and fitness and duplicates of such certificates to replace the
certificate lost destroyed or mutilated.
17- Furthermore, where motor vehicle is to be used as a transport vehicle in any public place, sub-section (1) of section 66 of the Act of 1988
mandates that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle save in accordance with the conditions of a
permit granted or countersigned by the competent authority.
18- That, Section 96 empowers the State Government to make rules for the purpose of control of Transport vehicle under Chapter V of the Act. That
clause (xiv) of sub-section (2) of Section 96 of the Act empowers the State Government to frame Rules relating to the constructions and fittings of,
and the equipment to be carried by, stage and contract carriages, whether generally or in specified areasâ€. That sub-section (1) of section 111
empowers a State Government to make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all
matters other than the matters specified in subsection (1) of section 110.
19- That in exercise of the powers conferred under sections 65, 96 and 111 (1) of the Act of 1988, the State Government has framed Rules contained
in Chapter VII of the M.P. Motor Vehicles Rules, 1994, relating to construction, equipment and maintenance of motor vehicles.
20- Sub-rule (1) of Rule 154 envisages that no parson shall or shall cause or allow to be used or to be in any public place any motor vehicle which
does not comply with the rule contained in Chapter VII, or with any order thereunder made by any officer of the Transport Department not below the
rank of Transport Inspector or any officer of the Police Department not below the rank of Deputy Superintendent. It is under this Chapter Rule 164
initially envisaged that width of doors of every entrance and exit of a public service vehicle other than a motor car shall be at least fifty three
centimeters in width and of sufficient height.
21- The rule, i.e., Rule 164, was substituted w.e.f. 05/01/2012 in the following terms:
“164.Width of Doors and Fitment of Emergency exit Window/door†:-
(1) Every public service vehicle, private service vehicle, contract carriage and educational institution vehicle shall be fitted with separate entrance and
exit doors located on the left side of the vehicle, and having at least 53 centimeters width and of sufficient height:
Provided, that the said provision shall not apply to a motor cab, a vehicle constructed under rule 128 of the Central Motor Vehicle Rules 1989, and a
vehicle having thirty-two or less seating capacity (excluding driver and conductor).
(2) Every public service vehicle, private service vehicle, contract carriage and educational institution vehicle other than those constructed under rule
128 of Central Motor Vehicles Rules, 1989, shall be fitted with either an emergency exit door or an emergency exit window located in the back or
right side of the vehicle having specifications as provided under rule 128 (4) of the Central Motor Vehicle Rules, 1989.â€
22- Thus, it became mandatory for every public service vehicle, private service vehicle contract carriage and educational institution vehicle to be fitted
with separate entrance and exit doors located on the left side of the vehicle, and having atleast 53 cms width and of sufficient height.
23- Though Rule 164 as substituted with effect from 05/01/2012 is not questioned on the ground of the competency of the State Government;
however, a declaration is sought that it is applicable from a prospective date and cannot be made applicable to those who owns vehicle used for public
service, prior to 05/01/2012.
24- The declaration is sought, as evident from the pleadings and submissions, on the anvil that there is an accrual of right in the respective owner to
have the physical structure of the vehicle as was at the time when the same was purchased and fitness certificate was granted on the basis whereof
the Registration certificate was issued and permit granted.
25- It is a established rule that unless, a legislation, which necessarily includes delegated legislation which we are presently concerned with, is that
unless a contrary intention appears, is presumed not to be intended to have a retrospective operation. This principle of law is known as lex prospicit
non respicit, which means: law looks forward not backward. 26- The basis of principle against retrospectivity, as held in Commissioner of Income Tax
(Central)-I, New Delhi Vs. Vatika Township Private Limited, (2015) 1 SCC 1, is the principle of “fairnessâ€, which is the basis of every legal rule.
It is held by their lordships :
“27. A legislation, be it a statutory Act or a statutory rule or a statutory notification, may physically consists of words printed on papers. However,
conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A
legislation is not just a series of statements, such as one finds in a work of fiction/non fiction or even in a judgment of a court of law. There is a
technique required to draft a legislation as well as to understand a legislation. Former technique is known as legislative drafting and latter one is to be
found in the various principles of “interpretation of statutesâ€. Visà -vis ordinary prose, a legislation differs in its provenance, lay-out and features
as also in the implication as to its meaning that arise by presumptions as to the intent of the maker there of.
Of the various rules guiding how alegislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is
presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law
passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not
tomorrow’s backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange
his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex
prospicit non respicit : law looks forward not backward. As was observed in Phillips vs. Eyre [(1870) LR 6 QB 1], a retrospective legislation is
contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with
future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
The obvious basis of the principle againstretrospectivity is the principle of “fairnessâ€, which must be the basis of every legal rule as was
observed in L’Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd [(1994) 1 AC 486]. Thus, legislations which modified
accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative
intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former
legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position
clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few
judgments containing this dicta, a little later.
27- In Vijay Vs. State of Maharashtra And Others, (2006) 6 SCC 289, it is held :
“6. The said amendment came into force with effect from 8-8-2003. According to the appellant, having regard to the fact that he was elected as a
member of the Gram Panchayat on 27-12-2000, he derived a vested right to continue in the said post and in that view of the matter, he could not have
been held to be disqualified by reason of the said amendment.
It may be true that the amendment came into effect on 8.8.2003. The legislative policy emanating from the aforesaid provision, in our opinion, is
absolutely clear and unambiguous. By introducing the said provision, the legislature, inter alia, intended that for the purpose of bringing grassroot
democracy, a person should not be permitted to hold two posts created in terms of Constitution (73rd Amendment) Act. It is true that ordinarily a
statute is construed to have prospective effect, but the same rule does not apply to a disqualifying provision. The inhibition against retrospective
construction is not a rigid rule. It does not apply to a curative or a clarificatory statute. If from a perusal of the statute intendment of the legislature is
clear, the Court will give effect thereto. For the said purpose, the general scope of the statute is relevant. Every law that takes away a right vested
under the existing law is retrospective in nature. [See Govt. of India vs. Indian Tobacco Assn., (2005) 7 SCC 396.]
The cardinal principle is that statutes must always be interpreted prospectively, unless the language of the statutes makes them retrospective, either
expressly or by necessary implication. Penal statutes which create new offences are always prospective, but penal statutes which create disabilities,
though ordinarily interpreted prospectively, are sometimes interpreted retrospectively when there is a clear intendment that they are to be applied to
past events. The reason why penal statutes are so construed was stated by Erle, C.J., in Midland Rly. Co. v. Pye, (1861) 10 C.B. NS 179 at p.191 in
the following words:
'Those whose duty it is to administer the law very properly guard against giving to an Act of Parliament a retrospective operation, unless the intention
of the legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shocks one's sense of
justice that an act, legal at the time of doing it, should be made unlawful by some new enactment.'
This principle has now been recognised by our Constitution and established as a Constitutional restriction on legislative power.
28- It is also a rule that a retrospective construction is not applicable merely because a part of the requisites for its action is drawn from a time
antecedents to passing of the relevant law.
29- In K.S. Paripoornan Vs. State of Kerala and others, AIR 1995 SC 1012, it is observed :
“66. The dictum of Lord Denman, C.J. in The Queen v. St. Mary, Whitechape (1848 (12) QB 120 (supra) that a statute which is in its direct
operation prospective cannot properly be called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to
its passing, which has received the approval of this Court, does not mean that a statute which is otherwise retrospective in the sense that it takes away
or impairs any vested right acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect to
transactions or considerations already past, will not be treated as retrospective. In Alexander v. Mercouris (1979 (3) All ER 305) (supra), Goff, L.J.,
after referring to the said observations of Lord Denman, C.J., has observed that a statute would not be operating prospectively if it creates new rights
and duties arising out of past transaction. The question whether a particular statute operates prospectively only or has retrospective operation also will
have to be determined on the basis of the effect it has on existing rights and obligations, whether it creates new obligations or imposes new duties or
levies new liabilities in relation to past transactions. For that purpose it is necessary to ascertain the intention of the legislature as indicated in the
statute itself.â€
30- In Andhra Pradesh Dairy Development Corporation Federation Vs. B. Narashima Reddy and Others (2011) 9 SCC 286, it is observed :
“39. Vested right has been defined as fixed; vested; accrued; settled; absolute; and complete; not contingent; not subject to be defeated by a
condition precedent. The word “vest†is generally used where an immediate fixed right in present or future enjoyment in respect of a property is
created. It is a ""legitimate"" or ""settled expectation"" to obtain right to enjoy the property, etc. (Vide Bibi Sayeeda v. State of Bihar, AIR 1996 SC 1936,
Howrah Municipal Corpn. v. Ganges Rope Co. Ltd., (2004) 1 SCC 663, and J.S. Yadav v. State of U.P., (2011) 6 SCC 570).â€
31- In the context one has to bear in mind the distinction between an existing right and a vested right where a statue operates in future it cannot be
said to be retrospective merely because within the sweep of its operation all existing rights are included. In Trimbak Damodhar Raipurkar Vs.
Assaram Hiraman Patil and others AIR 1966 SC 1758; it is held:
“9. In this connection it is relevant to distinguish between an existing right and a vested right. Where a statute operates in future it cannot be said to
be retrospective merely because within the sweep of its operation all existing rights are included. As observed by Buckley, L. J. in West v. Gwynne,
1911-2 Ch 1 at pp.11, 12, retrospective operation is one matter and interference with existing rights is another.
If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is
not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some,
namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and not as to the date as from which the
new law, as enacted by the Act, is to be taken to have been the law.
 These observations were made in dealing with the question as to the retrospective construction of s. 3 of the Conveyancing and Law of Property
Act, 1892 (55 & 56 Vict. c. 13). In substance s. 3 provided that in all leases containing a covenant, condition or agreement against assigning,
underletting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition or
agreement shall, unless the lease contains an expressed provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or
sum of money in the nature of a fine shall be payable for or in respect of such licence or consent. It was held that the provisions of the said section
applied to all leases whether executed before or after the commencement of the Act; and, according to Buckley, L. J., this construction did not make
the Act retrospective in operation; it merely affected in future existing rights under all leases whether executed before or after the date of the Act.
The position in regard to the operation of s. 5(1) of the amending Act with which we are concerned appears to us to be substantially similar.â€
32- In the case at hand under the statute, i.e. the Act of 1988 and the Rules made thereunder, viz, M.P. Motor Vehicle Rules 1994, what is
guaranteed is a right to operate a vehicle. It is not an absolute right but depends on certain contingencies which unless fulfilled no right accrues to
operate the vehicle under the statute. 33- Thus, a right to operate a vehicle is an existing right which flows from the statute, which is subject to
fulfillment of the stipulations contained in the same statue which creates an existing right. Merely because the petitioners acquired vehicle in the past,
which may lead to an acquisition of vehicle, which may vest in them, but that will not ipso facto create a vested right to operate a vehicle which will
depend on various contingencies as stipulated under Sections 39, 56 & 66 of the Act of 1988.
34- In view whereof, petitioners cannot seek exemption from the applicability of Rule 164 as brought in vogue 35- Consequently, petitions fail and are
dismissed. No costs.