1. This is an appeal by Government against the acquittal by the Sessions Judge of Kanara of one Vinayak Mahadev Habbu who was convicted of an offence under Section 16 of the Indian Motor Vehicles Act. The offence was alleged to consist of a breach of a notification issued by the District Magistrate of Kanara under Rule 21 of the Bombay Motor Vehicles Rules. The notification prohibited the driving on certain roads of the Kanara district of, inter alia, any motor vehicle, private or public, the maximum weight of goods in which exceeds one and a half ton. One of the roads specified in the notification was the Kumta-Hubli road.
2. The accused, who owns a bus or lorry, allowed it to be driven on the Kumta-Hubli road carrying a load of 189 maunds which is equivalent to two tons and twenty-nine maunds. There is no dispute about the facts nor is it disputed that the accused acted in contravention of the District Magistrate's notification.
3. The defence put forward in the trial Court and accepted in appeal by the Sessions Judge is that Rule 21 of the Motor Vehicles Rules is ultra vires of the Local Government and that therefore a breach of the notification issued by the District Magistrate does not amount to any offence.
4. The only question in this appeal therefore is, whether this Rule 21 is or is not ultra vires of the Local Government.
5. The Local Government has power to make rules under the Motor Vehicles Act VIII cf 1914 under Section 11 of the Act. Sub-section (1) of that section gives a general power to make rules for the purpose of carrying into effect the provisions of the Act and regulating the use of motor vehicles or any class of motor vehicles in public places. Sub-section (2) specifies the purposes for which rules may be made, these purposes being set out in els. (a) to (i). It is expressly stated, however, that this specification of the purposes for which rules may be made by the Lccal Government is without prejudice to the generality of the powers given by Sub-section (i). The only clauses in Sub-section (2) with which we are directly concerned are Clause (h) prohibiting or regulating the driving of motor vehicles in public places, where their use may, in the opinion of the Local Government, be attended with danger or inconvenience to the public, and Clause (i) providing generally for the prevention of danger, injury or annoyance to the public or any person, or danger or injury to property, or of obstruction to traffic.
6. The Bombay Motor Vehicles Rules have been framed by the Local Government in exercise of the rule-making power given by Section 11 of the Act. Rule 21 with which we are particularly concerned is in these terms :-
A motor vehicle shall not be driven on any foot-way, nor shall any motor vehicle of a specified class or classes of motor vehicles be driven on any road in any public place where such traffic has, either temporarily or permanently, been prohibited in the City of Bombay by the Commissioner of Police or elsewhere by the District Magistrate.
The learned Sessions Judge is of opinion that this Rule 21 must have been framed under Clause (h) of Sub-section (2) of Section 11. If that view is correct, it might reasonably be said to follow that the rule, in so far as it delegates power to the Commissioner of Police and the District Magistrate, is ultra vires, for the power given by Clause (h) is to prohibit the driving of motor vehicles in places where their use may be attended with danger or inconvenience to the public, in the opinion of the Local Government, and the effect of Rule 21 obviously is that the driving is prohibited where it is considered to be dangerous or inconvenient, in the opinion of the Commissioner of Police or the District Magistrate. This position was conceded in the lower Courts. The learned Government Pleader in this Court was not prepared to admit that the Local Government must necessarily express its opinion in the case of particular roads or places. We should however have found it difficult to hold that Rule 21 could be regarded as a valid rule if it could only be based upon the provisions of Clause (h).
7. We do not agree however with the learned Sessions Judge in his view that Rule 21 is framed solely under Clause (A) and derives its sole validity from that provision. The learned Judge has attached considerable importance to the frame of the rules and the order in which they are made. He says that, if the rules are read together, it will appear that they have been framed in a serial order under Clauses (a) to (h) of Sub-section (2). He gives an instance of this : Clause (g) of Section 11(2) relates to the limiting of the speed at which motor vehicles may be driven and Rule 20 also deals with speed limits. He infers that as Rule 20 corresponds to Clause (g), Rule 21 must correspond to Clause (h). But, as a matter of fact, if the rules are carefully read as a whole, they do not bear cut the learned Judge's view at all. The order of the rules is evidently not based on the order of Clauses (a) to (i) in Section 11(2). Rules 2 to 5 deal with driving licences, a matter which comes under Section 11(2) (d). Rules 6 and 7, and also Rules 10 to 12 and 15 to 18, deal with registration which is the subject of Section 11(2) (a). Rules 8 and 9 which deal with distinguishing numbers on motor vehicles relate to Section 11(2) (b). Rules 22 and 24 relate to Section 11(2) (c), Rule 27 to Section 11(2) (i) and Rule 31 to Section 11(2) (e). Moreover, there are several of the rules which it is difficult to refer to any of the specific clauses in Section 11(2) except possibly to Clause (i). I may mention Rule 19 which deals with the rule of the road, Rule 34 which deals with notice boards and danger signals, and Rule 42 which prescribes a maximum width and length in the case of motor vehicles. What the learned Sessions Judge has omitted to notice is that the object of Rule 21 may be, and the object of the notification issued by the District Magistrate in this case almost certainly was, to prevent the risk of injury to the roads. Driving a motor with a load of a weight in excess of one and a half ton is not likely to cause danger or inconvenience to the public. At any rate, it is very much more likely to cause damage to the road, and we think that that is what the notification was intended to prevent. Mr. Madhbhavi who appears for the accused in this appeal has conceded this. But unless the rule is intended to prohibit the driving of motor vehicles in places where it would be attended with danger or inconvenience to the public, it cannot be brought within the terms of Clause (h) of Section 11(2). On the other hand, it may properly come within the terms of Clause (i).
8. Another point made by the learned Sessions Judge is that Rule 21 begins by prohibiting the driving of a motor vehicle on any foot-way, and takes that to be an indication that the rule was meant to be framed under Clause (h). Mr. Madhbhavi has also relied on the descriptive heading of Rule 21 : ' prohibition as to use of Motor Vehicles on Foot-paths and in certain Localities '. (In the latest edition of the Rules the word ' Roads' has been substituted for foot-paths). It may be that Rule 21 so far as it prohibits the driving of motor vehicles on footways may properly be said to have been framed under Clause (h), but it is not material for our present purposes that a part of the rule with which we are not concerned may be referred to that clause. The learned Sessions Judge's reasoning breaks down if the main part of the rule, for the, breach of which the accused has been convicted, appears to have been framed not under Clause (h) but under Clause (i) or the general power given by Section 11(1).
9. A reference has been made to Emperor v. Sherston Baker I.L.R. (1921) 46 Bom. 646 : 24 Bom. L. R. 50, but in our opinion that case has no relevance here. The point there was whether the Local Government could provide by rule that the registration of motor vehicles should only be in force for limited period. Section 11(2) (a), in the form in which then it stood, said nothing about duration. The Court held that as the rule in question was obviously made under Section 11(2) (a) and as that clause denned the rales which could be made regarding registration, if was not permissible to invoke the general powers of Section 11(1).
10. Another point that was taken on behalf of the accused, which the learned Sessions Judge left undecided, was that the Act gives no power to regulate the weight of laden motor vehicles or the load carried and therefore the District Magistrate had no power to fix a maximum weight of load as he did in his notification. The learned Sessions Judge seemed to think that there was some force in this argument and he thought so because he was apparently under the impression that motor vehicles have been classified in the Act with reference to their unladen weight. This however is not the case. There is no classification of vehicles in the Act at all and all that we have in the rules is a definition of what is meant by ' Heavy Motor Vehicles' and ' Trailer' in Rule 3, Clauses (d) and (e). When Rule 21 speaks of a specified class or classes of motor vehicles, we think that what is meant obviously is, specified by the authority who is given power to prohibit, that is to say, the Commissioner of Police or the District Magistrate as the case may be. Further, we see no reason why the authority should not specify and prohibit motor vehicles carrying a load above a certain weight.
11. We see no reason to think that Rule 21 is ultra vires. We are of opinion, therefore, that the accused in this case was properly convicted by the Magistrate and wrongly acquitted by the Sessions Judge. We set aside the order of acquittal and restore the conviction and sentence of the trial Court.