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T.P. Boraiah and anr. Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 2054 and 2075 of 1971
Judge
Reported inAIR1972Kant181; AIR1972Mys181; (1972)1MysLJ172
ActsMotor Vehicles Act, 1939 - Sections 48, 48(3), 59, 60 and 68; Mysore Motor Vehicles Rules, 1963 - Rule 106; Motor Vehicles (Taxation of Passengers and Goods) Act, 1961; Mysore Motor Vehicles Taxation Act, 1957
AppellantT.P. Boraiah and anr.
RespondentState of Mysore and anr.
Appellant AdvocateM. Rangaswamy, Adv.
Respondent AdvocateR.N. Byra Reddy, High Court Government Adv.
DispositionPetition dismissed
Excerpt:
.....in section 59 which at best may be described as of general nature, intended generally to see that motor vehicles are operated subject to the law relating to the operations such as laws or rules which control speed etc. it may be stated in general terms that the object of the control is to provide for the benefit of the travelling public uninterrupted, safe and reasonably comfortable mode of transport. hence, it is perfectly conceivable that the non-payment of tax under the said act would result in either total interruption of the service by the attachment and detention of the vehicle or by serious inconvenience to the travelling public if the attachment is effected when the transport vehicle is actually operating and conveyingpassengers. if that much is possible, and it is not possible..........taxes due in respect of the vehicle have been paid in accordance with the provisions of the mysore motor vehicles taxation act, 1957, the mysore motor vehicles (taxation of passengers and goods) act. 1961 and the rules and notifications issued thereunder'.3. the proposed additional condition is a copy of clause (i) of rule 106 of themysore motor vehicles rules. 1963. as amended by a notification no. hd 34 tmr 66 dated the 14th june 1966. before the amendment, the said clause made reference only to motor vehicles taxation act. ' all that the amendment did was to make further reference to the mysore motor vehicles taxation of passengers and goods act also.4. the petitioner raises two questions. the first is that the power to impose an additional condition on a permit is that of the.....
Judgment:

Narayana Pai, C.J.

1. Both these writ petitions raise the same questions and a detailed consideration of one will dispose of both the writ petitions. We take up writ petition No. 2075 of 1971. The petitioner is an operator of stage carriage services. He operates his vehicles on contract carriage permits also.

2. He impugns the legality of a notice dated the 6th July 1971 issued to him by the Secretary of the Regional Transport Authority Mysore, calling uponhim to produce his permits for the purpose of adding thereto an additional condition to the following effect.

'A transport vehicle shall not be used on any public road unless taxes due in respect of the vehicle have been paid in accordance with the provisions of the Mysore Motor Vehicles Taxation Act, 1957, the Mysore Motor Vehicles (Taxation of Passengers and Goods) Act. 1961 and the rules and notifications issued thereunder'.

3. The proposed additional condition is a copy of Clause (i) of Rule 106 of theMysore Motor Vehicles Rules. 1963. as amended by a Notification No. HD 34 TMR 66 dated the 14th June 1966. Before the amendment, the said clause made reference only to Motor Vehicles Taxation Act. ' All that the amendment did was to make further reference to the Mysore Motor Vehicles Taxation of Passengers and Goods Act also.

4. The petitioner raises two questions. The first is that the power to impose an additional condition on a permit is that of the Regional Transport Authority and that unless the same has been specifically delegated to the Secretary, the said Secretary has no competence to issue the notice. The petitioner contends that to his knowledge there is no such delegation. However this is a matter which the petitioner could raise even before the Secretary when he appears before him and as the matter is purely a question of fact capable of verification on the records of the Regional Transport Authority, nothing more need be said on it in this writ petition.

5. The second contention is that Clause (i) of Rule 106 of the Mysore Motor Vehicles Rules is beyond the scope of the rule making power under Section 68 of the Mysore Motor Vehicles Act and that therefore the same should be struck down as ultra vires. Now the power under the said section is to make rules for the purpose of carrying into effect the provisions of Chapter IV of the Motor Vehicles Act. The said chapter deals with the topic of control of Transport vehicles. Among other things, the most important mode whereby transport vehicles and their operation are controlled is by providing for the necessity of taking out a permit for their operation and attaching conditions to such permit. Section 48 and Section59 enumerate the conditions which may be attached and must be attached to the permit. The compulsory conditions are those set out in Section 59 which at best may be described as of general nature, intended generally to see that Motor vehicles are operated subject to the law relating to the operations such as laws or rules which control speed etc. Section 48, in its third sub-section. authorises the Regional Transport Authority granting the permit to attach any one or more of the conditions enumerated therein. After enumerating several conditions, Clause (xxiii) mentions:

'any other conditions which may be prescribed'.

'Prescribed' under Clause (21) of Section 2 means prescribed by rules made under the Act. Therefore, one of the purposes in respect of which rule making power under Section 68 may be exercised is to enumerate additional conditions which may be added to the permit by the Regional Transport Authority. It is worthwhile noting that at this stage that so far as the conditions enumerated in Sub-section (3) of Section48 are concerned, the Regional Transport Authority is vested with the discretion of selecting the conditions out of those enumerated therein for being imposed in respect of any of the permits granted by him. Hence conditions prescribed for the purposes of Clause (xxiii) would also be conditions which it is optional for the Regional Transport Authority to impose or not to impose.

6. As already stated, the provision of Clause (xxiii) of Sub-section (3) of Section48 expressly authorises the rule making authority under Section 68 to prescribe additional conditions. Hence by the mere process of prescribing additional conditions, it cannot be contended that the rule making authority is travelling beyond the scope of its power.

7. The argument however is that the additional conditions prescribed for the purpose of Clause (xxiii) of Sub-clause (3) of Section 48 should have a reasonable connection with the topic of legislation in Chapter IV of the Motor Vehicles Act, viz. the control of transport vehicles. Tested that way one has to see whether the imposition of conditions prohibiting operation of motor vehicles, without payment of taxes either under the Motor Vehicles Act or under the Motor Vehicles (Taxation of Passengers and Goods) Act has or has not any reasonable relationship with the control of transport vehicles. It may be stated in general terms that the object of the control is to provide for the benefit of the travelling public uninterrupted, safe and reasonably comfortable mode of transport. It is seen from the Motor Vehicles Taxation Act that one of the modes of recovering tax due under the Act is to attach and detain the Motor Vehicle in respect of which it remains unpaid. Hence, it is perfectly conceivable that the non-payment of tax under the said Act would result in either total interruption of the service by the attachment and detention of the vehicle or by serious inconvenience to the travelling public if the attachment is effected when the transport vehicle is actually operating and conveyingpassengers. If that much is possible, and it is not possible to contradict the same, we fail to see how the prohibition sought to be imposed by the condition set out in Clause (i) of Rule 106 of the Motor Vehicles Rules is so far away from the purpose of Chapter IV of the Motor Vehicles Act or so totally unconnected therewith as to be struck down as beyond the scope of the rule making power under Section 68 of the Act.

8. Another argument questioning the validity of the said clause is that it is likely to impose unreasonable restriction on the fundamental right of carrying a business or trade. It is stated that whereas it is permissible under the Motor Vehicles (Taxation of Passengers and Goods) Act to make an estimate and Pay the tax, it is not unlikely that the asses-sing authority may at a later date after an assessment, determine as payable more tax than has been paid actually and that therefore upon such a determination there is every likelihood of the authorities under the Motor Vehicles Act taking steps to suspend or cancel the permit under Section 60 of the Motor Vehicles Act.

9. This has been stated by wav of illustration. Mr. Rangaswamy. learned counsel for the petitioner, states that similar situations might arise in the operation of the Act resulting in what may really be regarded as very unreasonable restraints.

10. Even assuming that such situations might arise, the argument really amounts to no more than saving that there is possibility of abuse of power or the possibility of the rule in certain circumstances operating to impose unreasonable restrictions on a fundamental right. It is clear law that possibility of abuse or possibility of breach or infringement of any of the fundamental rights in the course of executive action is by itself no ground to strike down any provision of law which is ex facie not open to any such attack.

11. Even otherwise, it appears to us that in actual event no such situation, as suggested by Mr. Rangaswamy. can arise. When a person liable to pay advance tax makes payment of such tax following the procedure and the rules for computation laid down under the relevant statute, it cannot be said that there is anything more than due by him. If and when the assessing authority disagrees with the computation made by the assessee and determines that a higher sum is due and makes a demand therefor, only the excess will become due on the dates specified in the demand. Hence we do not see any possibility of what was initially lawful becoming unlawful retrospectively upon the happening of an event subsequent thereto.

12. We do not see sufficient grounds to hold that Clause (i) of Rule106 of the Motor Vehicles Rules is beyond the scope of rule making power under Section 68 of the Motor Vehicles Act or to any extent infringes any fundamental right of the petitioner.

13. Both the Writ Petitions are, therefore, dismissed.


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