State
of Andhra Pradesh & Ors Vs. B.Noorulla Khan &
Anr [2004] Insc 388 (6
May 2004)
R.C.
Lahoti & Ashok Bhan. Bhan,J.
State
of Andhra Pradesh & Others have filed these appeals challenging the
impugned judgment passed by a Division Bench of Andhra Pradesh High Court
wherein it has struck down Rules 297-A(1)(c) and 297-A(6)(f) of The Andhra
Pradesh Motor Vehicles Rules, 1989 (for short 'the State Rules') being ultra vires
the provisions of The Motor Vehicles Act, 1988 (hereinafter referred to as 'the
Act') and Article 19(1)(g) of the Constitution of India. The Division Bench has
also held that the rules framed by the State Government under sections 95 and
96 of the Act and the further conditions prescribed in section 74 of the Act
are not applicable to all-India tourist permit vehicles.
Original
writ petitioners, respondents herein, are either the holders of contract
carriage permits granted under Section 74 of the Act or holders of all-India
tourist permits granted under Section 88 of the Act. The checking officials
seized and detained the vehicles being of the opinion that the vehicles were
being used as Stage Carriages. This action of the authorities was challenged by
the respondents by filing a set of writ petitions which were disposed of by a
Division Bench on 12th
September, 1995. Vires
of the Rules were not challenged in these writ petitions. The writ petitions
were dismissed and it was held that the authorities had the power to detain
vehicles during transit as and when any violation of the rules was found at the
time of checking. The vehicles were again seized and detained and thereafter
the respondents filed the present set of writ petitions challenging the
constitutional validity of Rules 185 (e)(v), 297-A(1)(c), 297-A(2)(b) read with
297-A(6)(b)(i) and 297-A(6)(f) of the State Rules being ultra vires the
provisions of the Constitution of India and the Act. By the impugned judgment,
the High Court has upheld the validity of Rules 185(e)(v), 297- A(2)(b) and
297-A(6)(b)(i). The respondents have not carried appeals to challenge the part
of the judgment by which the High Court has upheld the constitutional validity
of the Rules, referred to above.
Section
2(4) of the Act defines the Stage Carriage. Section 2(7) defines the Contract
Carriage. Chapter V deals with the control of the transport vehicles. Section
72 vests the Regional Transport Authority with the power to grant State
carriage permit [or refuse it] subject to the Rules framed and attach any one
or more of the conditions mentioned under Section 72(2) of the Act. Section 74
enables the concerned authority to grant contract carriage permit. Section 84
envisages the general conditions attaching to all permits. Section 86 vests the
authority with the power to cancel or suspend the permits. Section 88 provides
for validation of permits used outside the region in which it is granted.
Section 88(9) enables the State Transport Authority to grant all-India tourist
permits subject to the Rules framed by the Central Government under clause 14
of Section 88 for the whole of India or in
such contiguous States, not less than 3 in number, including the State in which
the permit is issued, as per choice indicated in the application. The
provisions of Sections 73, 74, 80 to 86 and Clause (d) of sub-section (1) of Section
87 and Section 89 shall as far as may be apply in relation to such permits. Section
88(11) lays down the condition of every permit granted under sub-section (9) of
Section 88. Section 88(11)(iii) empowers the Central Government to prescribe
other conditions of permit.
Sub-section
(14)(a) of Section 88 empowers the Central Government to make rules to carry
out the provisions of section 88. Section 95 of the Act empowers the State
Government to make rules as to Stage Carriages and Contract Carriages and the
conduct of passengers in such vehicles. Section 96 empowers the State
Government to make rules for the purpose of Chapter V to carry into effect the
provisions of the said Chapter.
The
High Court held that reading of Section 2(7) indicated that the 'common
purpose' means that all the passengers travelling in the contract carriage must
have a common destination, but it could not be stretched beyond that and to
hold that purpose of going to a common destination must also be the same. That
it could not be held that the travelling party, as a whole, must have one
'common purpose'; it was enough if they had a common destination. If common
purpose as defined by rules is read into the definition of Section 2(7) then it
would amount to amending or modifying the said section which is within the
purview of the legislature only. The High Court has further held that the rules
could not go beyond the Act and therefore rule 297-A(1)(c) was ultra vires the
provisions of the main Act as well as the Constitution of India.
The
High Court has also held that Rule 297-A (6)(f) contemplates that where a
public service vehicle has been, as a whole, engaged by a hiring party, an
agreement shall be drawn up in writing and executed by the agent and the hiring
party or its authorised representative containing the particulars mentioned
therein. The rule obligates the agent to enter into a written agreement with
the hiring party.
According
to the High Court, under Section 2(7), a contract could be either express or
implied. The express contract could be taken to include a written contract but
implied contract itself denotes that it is not mandatory to have a written
contract. Rules could not go beyond the purview of the Act or contrary to the
Act. Since the definition of contract carriage contemplates express as well as
implied contract, an oral contract could also be entered into. The provision
made under Rule 297-A(6)(f) mandating the agent to enter into written contract
was ultra vires the Section 2(7) and therefore liable to be struck down.
In so
far as all-India tourist permits are concerned it has been held by the High
Court that under Section 88(14)(a), it is the Central Government alone which
can frame the Rules to carry out the provisions of Section 88 and the State
Government has no authority to frame rules in regard to all-India tourist
permits in exercise of its powers under Sections 95 and 96 of the Act. Since
the rules framed by the State Government as made applicable to all-India
tourist permits run contrary to the Rules framed by the Central Government the
same were bad in law being repugnant.
Section
93 of the Act provides that an agent or canvasser who is engaged in the sale of
tickets for travel by public service vehicles or in otherwise soliciting
customers for such vehicles is required to obtain a licence from such authority
and subject to such conditions as may be prescribed by the State Government.
Sub-section (2) enumerates the conditions of such a licence as to the duration
of the licence, fee payable, deposit of security, provision as to the insurance
of goods in the transit, and the circumstances under which the licence may be
suspended or revoked.
Clause
(f) vests the State Government with the authority to lay "such other
conditions as may be prescribed by the State Government".
Rule
297-A of the State Rules makes special provisions for licensing of agents
engaged in the sales of tickets or in otherwise soliciting customers for public
service vehicles. Rules 297-A(1)(c) and 297-A (6) (f) which have struck down by
the High Court, read as follows:
"297-A.
Special provisions regarding licensing of agents engaged in the sales of
tickets or in otherwise soliciting customers for public service vehicles:- (1)
In this rule, unless the context otherwise requires.
Xxx xxx
(c) "Common purpose of journey" means the intention shared alike by
all the persons travelling by the public service vehicles;
(i) to
attend a meeting, gathering or function, social, religious, political and the
like, or (ii) to go on a pilgrimage or tour to visit places of tourist's
interest or both. But it shall not include the intention or the act of such
persons of merely travelling from one common point to another." Section
297-A (6) (f):
"An
agent's licence shall be subject to the following conditions:
xxx xxx
(f) Where the public service vehicle has been, as a whole, engaged by a hiring
party an agreement shall be drawn up in writing and executed by the agent and
the hiring party or its authorised representative containing the following essential
particulars and stipulations, namely:
(i)
Name, Father's/Husband's Name, Age/Occupation and full postal address of the
members or/representative of the hiring party who executes the agreement;
(ii)
An Annexure containing the list of all members of the hiring party giving their
particulars in the following form:
1.
Serial number,
2.
Name of the Member:
3.
Father's/Husband's name:
4.
Age:
5.
Full Postal Address:
(iii)
The nature of the common purpose of the journey;
(iv)
The period for which the vehicle is engaged by the hiring party;
(v)
The places to be visited by the hiring party;
(vi)
The place or places to be specified where all or some to be specified of the
members of the hiring party are to be picked up or let down under the agreement;
(vii)
Hire charges,
a) if
payable in a lumpsum, the amount so payable; or
b) if
calculable at a rate, the rate so agreed upon; and
c) in
either case, the amount if any paid in advance and the time for the payment of
the balance.
(viii)
Additional charges, if any, payable in case the journey is delayed or extended
at the instance of the hiring party." "Contract Carriage" in
Section 2(7) has been defined as:
"2(7):
'Contract Carriage' means a motor vehicle which carries a passenger or
passengers for hire or reward and is engaged under a contract, whether express
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
permit in relation to such vehicle or any person authorised 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
motorcar notwithstanding the separate fares are charged for its
passengers." Definition of contract carriage makes it clear that:
1. In
order that a vehicle can be used to transport passenger/passengers there must a
prior contract express or implied;
2.
Contract shall have to be entered into by a person with the holder of the
permit or any person authorised by him;
3.
Engagement under the contract must be for use of the vehicle as a whole;
4.
Contract must indicate the names of passengers to be carried in the vehicle;
5.
Vehicle is engaged on a fixed or an agreed rate or sum on a time basis whether
or not with reference to any route or distance; or from one point to another;
6. Without
stopping to pick up or set down passengers not included in the contract
anywhere during the journey.
In
Rule 297-A(1)( c) 'common purpose of journey' has been explained to mean common
intention shared by all the persons travelling by the vehicle under the
contract to attend a meeting, gathering or function which may be social,
religious, political and the like or to go on a pilgrimage or place of
tourist's interest but it shall not include the intention or the act of such
persons of merely travelling from one common point to another.
High
Court has held that 'common purpose' means that the passengers travelling
together need to have the common intention to travel to a common destination
but they need not share the common intention of travelling for the same purpose
as well. For instance, where a group of persons engage a contract carriage
vehicle for travelling from Delhi to Agra they have the common intention of travelling to the
same destination i.e. from Delhi to Agra but their purpose of travel from Delhi to Agra could be different. In other words, according to the High
Court, the words "under a contract" would include both single
contract and more than one contract.
This
point was examined by this Court in Brijendra Kumar held that it was not
correct to read the words "under a contract" occurring in Section
2(7) of the Act to mean as referring to both a single contract and more than
one contract. And in case such a construction is placed then the distinction
between the contract carriage and the stage carriage permits would be lost and
obliterated. It was held:
"10.
The definition makes it clear that in order that a vehicle could be used to
transport passenger or passengers there must be a prior contract express or implied;
that the contract must indicate as to who are the passengers to be carried;
that the contract shall have been entered into by a person with the holder of
the permit or any person authorised by him; and that the engagement under
"a contract" is for use of the vehicle as a whole. It is not possible
to read the words "under a contract" in the context as referring to
both a single contract and more than one contract. If the construction placed
by the learned counsel is accepted there would be no distinction between stage
carriage and contract carriage permits. Both these classes of permits are
intended to meet different requirements. A stage carriage is intended to meet
the requirements of the general travelling public.
But
the contract carriages are for those who want to hire the vehicle collectively
or individually for a group or party for their transport from place to place
and the whole vehicle is at their disposal.
This
is also made clear in Section 88(8) of the Act corresponding to Section 63(6) of
the old Act wherein it is provided:
"88(8)
Notwithstanding anything contained in sub-section (1), but subject to any rules
that may be made under this Act by the Central Government, the Regional
Transport Authority of any one region or, as the case may be, the State
Transport Authority, may, for the convenience of the public, grant a special
permit in relation to a vehicle covered by a permit issued under Section
72(including a reserve stage carriage) or under Section 74 or under sub-
section (9) of this section for carrying a passenger or passengers for hire or
reward under a contract, express or implied, for the use of the vehicle as a
whole without stopping to pick up or set down along the line of route
passengers not included in the contract, and in every case where such special
permit is granted, the Regional Transport Authority shall assign to the
vehicle, for display thereon, a special distinguishing mark in the form and
manner specified by the Central Government and such special permit shall be valid
in any other region or State without the countersignature of the Regional
Transport Authority of the other region or of the State Transport Authority of
the other State, as the case may be." That the contract shall be prior and
the persons who are to be carried shall be known prior to the journey is also
clear from the other limitation that the vehicle cannot stop to pick up or set
down passengers not included in the contract anywhere during the journey. As
pointed out by this Court in Roshan Lal Gauthan v. State of U.P (AIR 1965 SC
991).:
"The
contract carriage is engaged for the whole of the journey between two points
for carriage of a person or persons hiring it but it has not the right to pick
up other passengers on route. The stage carriage, on the other hand, runs
between two points irrespective of any prior contract and it is boarded by
passengers en route who pay the fare for distance they propose to travel."
If as contended by the learned counsel contract carriage permit holder can pick
up individual passengers at the starting point of the journey it is virtually a
stage carriage with corridor restriction. Some express buses and stage
carriages with corridor restriction pick up passengers at the starting point of
the journey and drop them at the last terminus of the route without the right
to pick up or drop passengers on the notified route between the two termini.
Further the definition in the Act has added the words "for the carriage of
passengers mentioned therein (contract)" which were not there earlier.
These words clearly show that there must be a prior contract and the passengers
shall be settled in advance." [Emphasis supplied] Transport Commissioner
& Ors., 1997 (9) SCC 227. In this case a writ was filed by an agent who had
hired on contract the vehicle from the carriage permit holder seeking an
appropriate writ or direction declaring and holding that the authorities had no
legal right or power to either seize or detain his vehicles solely on the
allegation of collection of individual fare from the passengers at the starting
point of journey without picking up or dropping the passengers en route.
Petitioner was collecting individual fares per passenger from one destination
to another but was not using the vehicle as a tourist vehicle hired to one
group party. Writ petition was dismissed by the High Court. Dismissing the
appeal it was held by this Court:
"4.
It is contended by Shri Arun Jaitley, learned Senior Counsel for the
petitioner, that the petitioner has taken the vehicle on hire basis from the
owner of the vehicle who had the permit for contract carriage of the passengers
from one destination to another. They are not collecting any individual fare en
route by picking up or setting down the passengers. They are picking up
passengers from one place and taking them for tour to the other destination
and, therefore, it is a "contract carriage" within the meaning of
Section 2(7) of the Act. It is not a stage carriage permit but one of contract
carriage and, therefore, the view taken by the High Court is not correct in
law. It is true that if the holder of the vehicle obtains a contract carriage,
the owner may carry a passenger or passengers for hire or reward on contract,
whether express 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. In other words, the very
permit which grants the contract for carriage of the passengers should contain
the names of the passengers to carry from one destination to another
destination without picking up or setting down en route for hire or reward but
when the holder of a permit is another and permits them to carry the passengers
and makes the contract dehors those mentioned in the list of passengers
enclosed to the permit as contract carriage and takes the passengers from one
destination to another, even without picking up or setting down en route the
necessary consequence would be that the vehicle has been or is being used as a
stage carriage but not a contract carriage. Under those circumstances,
obviously, the authority had rightly detained the vehicle for the contravention
of the conditions of the permit. Therefore, the mandamus, as sought for, was
rightly refused by the high Court. The learned counsel sought reliance on a
judgment of the Madras High Court in N. Krishnasami Chetty v. Licensing
Officer, Dy. Transport Commr. and Secy RTA, AIR 1988 Mad. 274. The learned
Judges have not correctly appreciated the legal position. Therefore, it is not
correct in view of the above law. It is accordingly overruled." [Emphasis
supplied] The distinction between a stage carriage permit or a contract
carriage permit as envisaged by the Legislature has to be maintained as the two
types of permits are intended to meet different requirements. The contract
carriages are for those who want to hire the vehicle collectively or
individually for a group or a party for their transport to a
destination/destinations. The vehicle has to be hired as a whole for the
carriage of passengers mentioned in the contract. There has to be only one
contract for carrying the passengers mentioned in the contract from one
destination to another. An agent or a group of persons/individuals cannot hire
a public service vehicle for going from one place to another with passengers
having different purposes. If such a construction is put then there would be no
distinction between stage carriage or contract carriage permits.
If
contract carriage permit holder is permitted to pick up individual or a few of
them from the starting point of journey and drop them at the last terminus of
the route it would virtually be a Stage Carriage with corridor restriction.
Stage
carriage is intended to meet the requirements of the general public travelling
from one destination to another having different purposes whereas a contract
carriage is meant for those who want to hire a public service vehicle as a
whole collectively for their transport from one destination to another having
the same purpose. High Court was not right in holding that the travelling party
as a whole need not have a common purpose for their travel and it was
sufficient if they had a common destination. The view taken runs counter to the
law laid down by this Court in Brijendra Kumar Chaudhari & Anr. and Nirmala
JagdishChandra Kabra cases (supra) and, therefore, bad in law. High Court was
not right in declaring ultra vires the Rules framed by the State Government
providing that the party hiring the contract carriage vehicle should, not only,
have the intention of travelling to the same destination but should also have
the common purpose of travelling as well. In Rule 297-A (1)(c) 'common purpose'
has been defined to mean the intention shared alike by all the persons travelling
by the public service vehicles to attend a meeting, gathering or function,
social, religious, political and the like, or to go to a pligrimage or visit to
place of tourist's interest or both. That it would not include the intention or
the act of such persons merely travelling from one common point to another.
This Rule framed by the State Government does not run counter to the provisions
of Section 2(7) of the Act either in its intent or in its expression. The rule
is in consonance with the intent of Section 2(7) of the Act. The same has been
framed to fulfill the object with which Section 2(7) has been enacted. Any
other interpretation would obliterate the distinction between a stage carriage
permit and a contract carriage permit.
High
Court has struck down Rule 297-A(6)(f) as it provides for the execution of a
written contract between the hiring party and the agent while hiring a public
service vehicle. According to the High Court the contract can be in writing as
well as an implied contract. Under Section 2 (7) a contract could be either
express or implied and therefore it was not mandatory to have a written
contract only. It could be an oral contract as well. The Rule providing to have
a written contract mandatorily goes beyond the purview of the Act and therefore
bad in law. Contract could be implied also as the definition of the contract
carriage contemplates express as well as an implied contract.
Rule
297-A(6)(f) provides for drawing up of an agreement in writing, providing
therein the list of all the members of the hiring party giving particulars of
their names, father's/husband's name, age, full address, the period for which
the vehicle is engaged, places to be visited etc. and "the nature of the
common purpose of the journey". This Court in Brijendra Kumar Chaudhari
& Anr. (supra) while interpreting Section 2 (7) of the Act has held that
the contract entered between the parties shall be prior and persons who are to
be carried shall also be known prior to the journey.
Similarly,
in Nirmala JagdishChandra Kabra case (supra) it has been held that the permit
which grants the contract for carriage of the passengers should contain the
names of the passengers to be carried from one destination to another without
picking up or dropping the passengers en- route. Contract may be express or
implied as contemplated by Section 2 (7) but the names of the passengers to be
carried have to be settled prior to undertaking the journey. Rule 297-A (6)(f)
does not go beyond the purview of the Act. Rather it carries out the purpose of
the Act. Essentially it provides for settling the names of the passengers
undertaking the journey under an agreement for hiring a public service vehicle.
Passengers who are to be carried are to be known prior to the journey as the
definition of contract carriage in Section 2 (7) includes the words "for
the carriage of passengers mentioned therein". These words clearly show
that there must be a prior contract and the passengers shall also be settled in
advance. High Court erred in striking down Rule 297-A (6)(f).
For
the reasons stated above both the Rules 297-A(1)(c ) and 297-A (6) (f) are held
to be intra vires of the Act and the findings recorded by the High Court to the
contrary are set aside.
Coming
to the last point wherein the High Court has held that the rules framed by the
Central Government under Section 88 (14) would alone be applicable to all-India
tourist permit and not the Rules framed by the State Government, it was
contended by the learned counsel for the appellants that all-India tourist
permits were basically contract carriages.
'Tourist
vehicle' is defined under Section 2 (43) to mean a contract carriage.
The
permits granted under Section 88 (9) enable these vehicles to be used in more
than one State but only for tourist purposes. Apart from this difference in the
actual area of operation there is no other difference between a contract
carriage and an all-India tourist vehicle. An all-India tourist vehicle has to
comply with the norms of a contract carriage. The vehicle in any case has to be
restricted for the journey as a whole from one end to the other without picking
up any passenger in between. The journey is one contract of a round trip for the
whole journey to and from with one common purpose. On checking it was found
that all-India tourist vehicles were indulging in illicit operation as stage
carriages and not as contract carriages.
We do
not find any force in this submission. Section 88 provides that except as may
be otherwise prescribed, a permit granted by the Regional Transport Authority
of any one region shall not be valid in any other region, unless the permit has
been countersigned by the Regional Transport Authority of that other region,
and a permit granted in any one State shall not be valid in any other State
unless countersigned by the State Transport Authority of that other State or by
the Regional Transport Authority concerned. Sub-section (9) which provides for
the grant of all-India tourist permits, which reads as:
"9.
Notwithstanding anything contained in sub- section (1) but subject to any rules
that may be made by the Central Government under sub- section (14), any State
Transport Authority may, for the purpose of promoting tourism, grant permits in
respect of tourist vehicles valid for the whole of India, or in such contiguous
States not being less than three in number including the State in which the
permit is issued as may be specified in such permit in accordance with the choice
indicated in the application and the provisions of sections
73,74,80,81,82,83,84,85,86 [clause (d) of sub-section (1) of Section 87 and
Section 89] shall, as far as may be, apply in relation to such permits."
It is clear from the reading of this provision that the State Transport
Authority has been empowered to grant all-India tourist permit for the purpose
of promoting tourism, notwithstanding anything contained in sub- section (1) of
Section 88 and subject to the Rules to be made by the Central Government under
sub-section 14 of Section 88, for the whole of India or such contiguous States
not less than three in number including the State in which the permit is
issued. Further the provisions of sections 73, 74, 80, 81, 82, 83, 84, 85, 86
clause (d) of sub-section (1) of Section 87 and Section 89 are applicable as
far as may be in relation to such permits. Sub-section (11) reads as under:
"(11)
The following shall be conditions of every permit granted under sub-section
(9), namely: -
(i)
every motor vehicle in respect of which such permit is granted shall conform to
such description, requirement regarding the seating capacity, standards of
comforts, amenities and other matters, as the Central Government may specify in
this behalf;
(ii)
every such motor vehicle shall be driven by a person having such qualifications
and satisfying such conditions as may be specified by the Central Government;
and
(iii) such
other conditions as may be prescribed by the Central Government."
Sub-section (11) provides that every motor vehicle to which all-India tourist
permit has been granted shall conform to the description, requirement of
seating capacity, standards of comforts, amenities and other matters, as
specified by the Central Government in this behalf. Further, such vehicles have
to be driven by persons having such qualifications and satisfying such
conditions as may be specified by the Central Government. Other such conditions
have also to be prescribed by the Central Government.
Sub-section
14 reads as under:
"(14)
(a) The Central Government may make rules for carrying out the provisions of
this section.
(b) In
particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:-
(i) the
authorisation fee payable of the issue of a permit referred to in sub-sections
(9) and (12);
(ii) the
fixation of the laden weight of the motor vehicle;
(iii) the
distinguishing particulars or marks to be carried or exhibited in or on the
motor vehicle;
(iv) the
colour or colours in which the motor vehicle is to be painted;
(v) such
other matters as the appropriate authority shall consider in granting a
national permit.
Explanation.- In this section, Xxx xxx" This
sub-section empowers the Central Government to frame Rules for carrying out the
provisions of this Section as well as for providing for all or any of the
matters mentioned in sub-clause (b) of this Section. From the conjoint reading
of sub-sections (9), (11) and (14), referred to above, it is abundantly clear
that it is the Central Government alone which has been authorised to frame the
Rules as well as to prescribe the conditions for the purposes of all-India
tourist vehicles.
The
power to make rules under Sections 95 and 96 would not include the power to
frame rules applicable to all-India tourist permit which is exclusively vested
in the Central Government. The power to frame rules and prescribe conditions
for the all-India tourist permit is exclusively vested in the Central Government
and the High Court was right in holding that the State Government would have no
jurisdiction to either frame the Rules or prescribe conditions for the
all-India tourist permits. Such permits would be exclusively governed by the
Rules framed by the Central Government or the conditions prescribed by the
Central Government. The judgment of the High Court in so far as it has held
that it is the Rules framed by the Central Government only which would be
applicable to all-India tourist permits and not the Rules framed by the State
Government is upheld.
For
the reasons stated above, the appeals are accepted partly to the extent
indicated in the foregoing paragraphs. No order as to costs.
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