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Sunmitra Auto Rickshaw Sahakari Sangh Ltd. and anr. Vs. Director of Transport and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1858 of 1966
Judge
Reported inAIR1967Bom402; (1967)69BOMLR247; 1967MhLJ589
ActsMotor Vehicles Act, 1939 - Sections 2(15) and 2(18); Bombay Motor Vehicles Rules, 1959 - Rules 129(1), 221, 226(6), 226(8) and 229
AppellantSunmitra Auto Rickshaw Sahakari Sangh Ltd. and anr.
RespondentDirector of Transport and ors.
Appellant AdvocateR.W. Adik and ;V.N. Gadgil, Advs.
Respondent AdvocateGovernment Pleader
Excerpt:
.....of 1939), sections 2(15), 2(16), 2(18) - bombay motor vehicles rules. rules 129, 229, 221, 226 -- auto-rickshaw whether motor-cab within section 2(15) -- rule 129 whether applies to auto-rickshaws -- requirement as to light in rule 229 whether in relation to meter -- rule 221(1) whether can be substantially complied with.;an auto-rickshaw falls within the definition of motor cab contained in section 2(15) of the motor vehicles act, 1939. ;rule 129 of the bombay motor vehicles rules, 1959, applies to auto-rickshaws. ;the requirement as to light contained in rule 229 of the rules is not a requirement of a meter. the requirement prescribed is that of a cab. a cab fitted with a meter must have a light. ;rule 221(7) of the rules requires substantial compliance and not compliance which is.....kotval, c.j.(1) in this petition a union of auto-rickshaw owners and an auto-rickshaw driver challenge the orders dated 27th june 1965, 14th july 1965, and 5th november, 1965. passed by the director of transport, the respondent no. 1 compelling the petitioner no. 2 and other auto-rickshaw owners and drivers to affix taxi meters to their auto-rickshaws plying in poona city. the original notification under which these subsequent orders were issued was published in the maharashtra government gazette, poone division, part i, dated 21st october, 1965, notification no. 4735/5-o/fare meter/por at page 1392 of the gazette. that was a general notification under rule 129 (1) of the bombay motor vehicles rules, 1959, notifying that no contract carriage permits to ply auto-rickshaws for hire or.....
Judgment:

Kotval, C.J.

(1) In this petition a union of Auto-rickshaw owners and an auto-rickshaw driver challenge the orders dated 27th June 1965, 14th July 1965, and 5th November, 1965. passed by the Director of Transport, the respondent No. 1 compelling the petitioner No. 2 and other auto-rickshaw owners and drivers to affix taxi meters to their auto-rickshaws plying in Poona City. The original notification under which these subsequent orders were issued was published in the Maharashtra Government Gazette, Poone Division, Part I, dated 21st October, 1965, notification No. 4735/5-O/fare meter/POR at page 1392 of the Gazette. That was a general notification under rule 129 (1) of the Bombay Motor Vehicles Rules, 1959, notifying that no contract carriage permits to ply auto-rickshaws for hire or reward within the Cities of Poona, Kolhapur, Sholapur, Karad Miraj and Sangli and the environs thereof, shall be granted unless such auto-rickshaws are fitted with an approved type of fare meter. Curiously enough the petitioners do not challenge this notification but merely the subsequent orders issued implementing this notification.

(2) Three points have been raised by Mr. Adik on behalf of the petitioners. The first is that auto-rickshaws are not 'motor cabs' within the meaning of the definition in section 2(15) of the Motor Vehicles Act. 'Motor cab' is defined in that section to mean 'any motor vehicle constructed, adapted or used to carry not more than six passengers excluding the driver, for hire or reward'. The auto-rickshaw of the petitioner No. 2 has been granted a permit which limits the number of passengers to be carried to two only. He, therefore, says that his auto-rickshaw will not fall within the definition of 'motor cab' in section 2 (15).

(3) The proper ambit of the definition of 'motor cab' may be clarified if one considers the definition of 'motor vehicle' in section 2(18) of which 'motor can' is only a species. 'Motor vehicle' is defined to mean '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 tailer;' There are certain vehicles expressly excluded with which we are not here concerned. It is thus clear that a motor can is a motor vehicle except for the fact that it is constructed, adapted or used to carry not more than six passengers for hire or reward. The limitation laid down in the permit granted to the petitioner No. 2 is that he shall not carry more than two passengers. If he were permitted even to carry more than two passengers upto six passengers the vehicle will still be classed as a motor cab. Therefore the limitation of passengers to two only would bring the vehicle all the more within the definition of motor cab. In our opinion, an auto-rickshaw clearly falls within the definition of motor cab under the Motor Vehicles Act.

(4) Then we come to the second contention which is based upon R. 129, sub-rule (1) of Rule 129 prescribes that a Regional Transport Authority may by notification in the Official Gazette require that within the limits of such area as may be specified in the notification all motor cabs or any class of motor cabs shall be fitted with taxi-meters. Mr. Adik urged that the word used in this sub-rule is 'taxi-meter' and that implies therefore that the Rule was intended to apply to 'motor cars' only within the definition contained in section 2 (16) of the Motor Vehicles Act. 'Motor car' is defined to mean 'any motor vehicle other than a transport Vehicle, omnibus, road roller, tractor motor cycle or invalid carriage.'

(5) Now no doubt the word 'taxi meter' has been used in Rule 129(1), but the word is nowhere defined in the Act or the Rules and, therefore, was used in the ordinary acceptance of that word in the English language. The meaning of the word 'Taximeter' in the Concise Oxford Dictionary is 'Automatic device fitted to cab and indicating fare due at any moment.' The ordinary meaning of 'taxi' is given as 'motor cab plying for hire and fitted with taximeter; other motor-car of similar pattern.' Thus when the word 'Taxi', is used a motor can is necessarily included and when the word 'taximeter' is used it means a meter fitted to a 'motor cab'. Therefore the mere use of the word 'taximeter' in Rule 129 (1) will not exclude from its operation motor cabs and we have already shown that auto-rickshaws are motor cabs.

(6) The third contention raised by Mr. Adik relates to several defects in the meters which have been approved by the licensing authority under Rule 226 of the Motor Vehicles Rules. The argument is that such meters as have been approved do not themselves comply with the Rules under the Act and affixing them to the Auto-rickshaw of the second respondent would lay him open to a charge of breach of the Rules. It was, therefore, urged that recognition of such meters ought not to be allowed and an order which permits or induces a breach of another rule ought not to be held valid. The licensing authority has recognised two brands of meters (1) the 'Diamond' auto-rickshaw fare-meter and (2) 'Fare Master' auto-rickshaw fare-meter. The two orders are dated 27th June, 1965 and 14th July 1965. Now it is no doubt conceded on behalf of the State that the Diamond auto-rickshaw fare-meter has no bell attached to it. Rule 226 (6), however required that 'Every meter shall be so constructed that it gives audible warning by means of a suitable bell or gong whenever the driver moves the lever which operates the recording mechanism.' This Rule obviously has been introduced in order that the passenger may be warned as soon as the meter is worked and that, therefore there could be no tampering on the part of the driver of the vehicle. It was suggested that it also prevents tampering with the meter by passengers while the driver is driving the vehicle. That may be so, though we have no doubt that it is rather difficult for a passenger to do so while the driver is driving the vehicle. In any case, it is clear that the Diamond fare meter does not comply with the requirement of the law and, therefore ought not to have been recognised as suitable for affixing on auto-rickshaws.

(7) But the question here is whether for that reason we can declare bad the order passed against the petitioner that he must affix a fare-meter to his auto-rickshaw. It seems to us that so long as meters with bells attached are available which would if affixed lead to a compliance with Rule 226(6), no grievance can be made by the petitioner simply because there are recognised meters which do not comply with the Rule. It is not disputed that the 'Fare Master' fare meters manufactured by Messrs Vibronis Private Ltd. have bells attached to them and if affixed would lead to a compliance with Rules 226 (6). This contention, therefore, must be negatived.

(8) The other contention on this score is that none of the meters which have been recognised as usable by auto-rickshaws have a light attached to them. Rule 229 prescribes that every can required to be fitted with a meter shall have a light so fixed as to illuminate the meter at night. In our opinion, this is not in requirement of a meter. The requirement prescribed is that of a cab. A cab fitted with a meter must have a light. Now it is not complained before us that it is unreasonable to expect a light to be affixed or impossible to affix it in the auto-rickshaw of the petitioner or in any other auto-rickshaw. The necessity for a light is obvious. It is required so that the passenger may at night be able to read the meter and satisfy himself that the fare charged is the correct fare. The requirement has nothing to do with the meter and it is a reasonable requirement capable of compliance. No grievance can be made on the score that the meters approved have not got a light.

(9) Lastly the difficulty of compliance with Rule 226 (8) has been complained of. Sub-rule (8) of Rule 226 requires that the mechanism driving the distance-recording gearing of meters shall be fitted not to the driving wheels of a cab but to the non-driving wheels of the chassis gear-box attached to the cab. It has been pointed out that in certain types of auto-rickshaws known as the 'Vespa' auto-rickshaws it was impossible to affix the mechanism to the non-driving wheels of the gear-box. This was admitted on behalf of the State. The argument therefore is that the Rule, requires something impossible to be done by the owner or driver of the auto-rickshaw and, therefore, either the Rule should be declared bad or not allowed to be implemented.

(10) Even assuming that the argument is correct we cannot see how it can result in an order being passed not to allow taxi meters to be affixed at all but part from that and even assuming that the impossibility pointed out is there, Rule 221 is meant for just such a contingency as it is argued would arise in the implementation of this Rule. The counsel for the petitioner himself stated that because the meter cannot be affixed to the gear-box so far as 'Vespa' auto-rickshaws are concerned, they are being affixed to the driving wheels of the can or at some other point where the meter can be made to function. In practice, therefore, it is not impossible to work the meter through it may be assumed that thereby a technical non-compliance of section 226(8) may occur.

(11) We have no doubt that if the driver or owner does his best to comply with a rule he would be protected under the provisions of Rule 221. Rule 221 says that no motor cab required to be fitted under Rule 129 with a taxi-meter........shall be used in a public place unless (1) it is fitted with a meter of a type which in the opinion of the Director of Transport complies with the provisions of Rule 226 or is so designed or constructed that the constructional requirement as specified in Rule 226 are substantially complied with. What the Rule, therefore, requires is substantial compliance and not compliance which is literally in accord with Rule 229. Mr. Adik urged that Rule 221 (1) only has reference to 'constructional requirement' and would not protect a person who has not complied strictly with Rule 229. Even assuming that that is so we have no doubt that the law cannot require an impossibility to be performed. So far there is no specific instance where the authorities have insisted upon the literal fulfilment of Rule 226 (8), and we have no doubt that if the authorities were to insist on compliance with a rule which is impossible of fulfilment Courts will have ample power to protect the citizen. As it is admittedly being done now, if the driving mechanism of the distance-recording gears of meters are affixed to any other portion of the auto-rickshaws because of impossibility of affixing them at the prescribed place the owner or driver must be held to have substantially complied with the rule and can incur no penalty. In that view we are not inclined to accept the contention advanced that either the Rule should be declared bad or affixing of meters to auto-rickshaws should be completely interdicted.

(12) The rule is discharged and the petition dismissed. There will be no order as to costs.

HK/LGC/D.V.C.

(13) Petition dismissed.


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