1. On a reference made by the Learned Single Judge before whom they came for hearing, these petitions have come up for disposal before this Division Bench.
2. The petitioners in the above Writ Petitions are owners of certain motor vehicles which are being used by them either as stage carriages or as contract carriages. In these petitions they have questioned the validity of notices issued to them by the concerned Regional Transport Officers, calling upon them to bring the seating capacities of the Vehicles inquestion in conformity with the seating capacities prescribed in Rule 216 of the Karnataka Motor Vehicles Rules, 1965 (here in after referred to as the Rules). In some of the petitions, the petitioners also questioned the validity of notices issued by concerned Regional Transport Officers directing them to pay the difference between the tax they would have been liable to pay had the vehicles been constructed to have seating capacity in accordance with Rule 216 and the tax actually paid by them under the provisions of the Karnataka Motor Vehicles Taxation Act, 1957 (hereinafter referred the Taxation Act).
3. Because common questions of fact and law arise for consideration in these cases we find it convenient to dispose of all these petitions by this common order.
4. Rule 216 of the Rules was substituted by a new Rule under Notification No. G.S.R. 360 dated 7th October, 1969. In these cases, we are concerned with the new Rule 216. It reads :
'216 Limit of Seating Capacity :-
(1)Subject to the provisions of Rule 214 regarding the seating accommodation, the number of passengers excluding the driver andconductor that a public service vehicle other than a motor cab, may be permitted to carry, shall not exceed the number determined by dividing by 59 K.Gs. the difference in K.Gs. between the registered laden weight less 109 Kilo and the unladen weight of the vehicle.
(2) The minimum seating capacity of a public service vehicle shall be directly proportionate to the wheel base of the vehicle. In all public service vehicles other than motor cabs the minimum number of seats to be provided shall be as specified in column (2) of the table below :
Provided that the operator may increase the capacity consistent with the other rule relating to seating capacity and with the due regard to the type of the chassis on which the body is fitted : -
No of seats (minimum seating capacity)
2 254 to 293 cm
16294 to 305 cm
20 306 to 343 cm
25 344 to 407 cm
30 408 to 432 cm
35 433 to 496 cm
45497 to 534 cm
50 above 535 cm
(3) Nothing in Sub-Rule (2) apply to :
(i) Stage carriages proposed to be operated exclusively in town and cities ; and
(ii) Stage carriages registered prior to the coming into force of the Mysore Motor Vehicles (V Amendment) Rules, 1969.
Provided that when the body of a stage carriage specified in item (ii) is reconstructed, the seats shall be so arranged as to face the front and maximum number of seats to the satisfaction of the registering authority, shall be provided.'
The above rule was made by the State Government in exercise of the power conferred on it under Section 70(2)(b) of the Motor Vehicles, Act, 1939. The validity of the above rule was questioned by some owners of Motor Vehicles before this Court. A Division Bench of this Court, by its order dated 15-4-1971 in K.G. Jagannath -v.- State of Mysore, 1971(2) Mys. L.J. 384 held that Rule 216(2) was unconstitutional. Aggrieved by the decision of this Court, the StateGovernment filed an appeal before the Supreme Court. In State of Mysore and another-v.- K.G.Jagannath, : 3SCR770 the appeal filed by the State Government was allowed and Rule 216(2) was held to be valid. The decision of the Supreme Court was pronounced on 27-3-1973. The vehicles involved in the above Writ Petitions except one bearing registration number 5695 belonging to the petitioner K. G. Jagannath, were either registered or altered or were assigned new registration marks under Section 29 of the Motor Vehicles Act, during the period between 15-4-1971 on which the date this Court pronounced its decision in K.G. Jagannath's case and 27-3-1973 on which date the Supreme Court pronounced its decision in the aforesaid appeal. In the cases of those vehicles which were registered in the State of Karnataka or in respect of which alteration of seating capacity was done during the above period, it is not disputed that theconcerned Regional Transport Officers had accorded permission to construct the bodies or to alter the seating capacity of the vehicles under Rules 216 & 231 of the Rules or under Section 32 of the Motor Vehicles Act as the case may be. It is stated that even in the case of Vehicle No. 5695 the alteration of seating capacity was done in accordance with the permission of the Regional Transport Officer. After the vehicles were registered or altered in accordance with the permission given by the Regional Transport Officers, the petitioners used the said vehicles either as stage carriages or contract carriages. They paid the taxes due on the vehicles in accordance with the pro-visions of the Taxation Act. After the validity of the Rule was upheld by the Supreme Court, the Regional Transport Officers issued notices to the petitioners asking them to increase the seating capacities of the vehicles and to bring them in conformity with the amended Rule 216 and in some cases they called upon the petitioners to pay the difference between the tax which they would have been liable to pay had the vehicles been constructed to have seating capacity in accordance with Rule 216 and the actual tax paid by them. Aggrieved by the above demands, the petitioners have filed these Writ Petitions.
5. It is contended by the Learned Counsel for the petitioners, that the demand made by the Regional Transport Officers calling upon the petitioners to alter the seating capacities of the vehicles and to bring them in conformity with Rule 216 is without authority. Similarly the Learned Counsel appearing on behalf of the petitioners, who have been called upon to pay the difference in the tax have urged that the Regional Transport Officers concerned had no power to call upon the petitioners to pay the difference in tax when admittedly the petitioners had paid the taxes in accordance with the actual seating capacity of their respective vehicles.
6. Chapter V of the Motor Vehicles Act contains pre-visions regarding the construction, equipment andmaintenance of Motor Vehicles. Section 69 of that Act provides that every motor vehicle, shall be so constructed and so maintained as tobe at all times under the effective control of the persons driving the vehicle. 69-A of the Act provides that every motor vehicle shall be so constructed as to have right hand steering control unless it is equipped with a mechanical or electrical signalling device of a prescribed nature. Section 70 of the Act which is the only other Section in Chapter V empowers the State Government to make rules regarding construction, equipment andmaintenance of motor vehicles and trailers. Clause (b) of sub-section (2) of Section 70 specifically empowers the State Government to make rules regarding seating arrangements in Public Service vehicles and the protection of passengers against the weather. There is no provision in the Act which empowers any authority to direct the owner of a vehicle who has constructed or altered the body of a motor vehicle in accordance with the permission accorded by theauthorities, to dismantle the body of that vehicle and to reconstruct it in a different way. It is not disputed that in all these cases, the petitioners have either constructed the bodies of the vehicles or altered them with the express permission of the concerned Regional Transport Officers. It is also not disputed that while so permitting them the Regional Transport Officers approved the seating capacities of the vehicles as proposed by the petitioners. It is no doubt true that the seating capacities of the vehicles in question are lower than those prescribed by Rule 216. The question winch however arises for consideration in these cases is whether it is open to the Regional Transport Officers to call upon the petitioners to alter the seating capacities of the vehicles, after the Supreme Court upheld the validity of Rule 216. As already mentioned, there is no express provision in the Motor Vehicles Act authorising the Regional Transport Officers to do so. Even the Rules do not confer such a power on the Regional Transport Officers. The petitioners have either constructed or altered the bodies of the vehicles after spending a large sum of money on each vehicle and if they are now asked to reconstruct the bodies of the vehicles or to alter the bodies so as to bring them in conformity with the seating capacity prescribed in Rule 216 they will have to spend again a large sum on each vehicle, apart from the vehicle in question being put out of road during the period of such reconstruction or alteration.
7. The Learned Government Advocate argued that the Regional Transport Officers have only tried to enforce Rule 216 in these cases after its validity had been upheld by the Supreme Court and that the proceedings initiated against the petitioners were in the nature of restitution proceedings under Section 144 of the Code of Civil Procedure or governed by the principles underlying it. It was con-tended by him that the principles underlying Section 144 of the Code of Civil Procedure were applicable to cases under Article 226 of the Constitution also. It was therefore, argued that what the Regional Transport Officers had done in these cases was in conformity with law.
It is difficult to agree with the submission made by the Learned Government Advocate that either Section 144 of the Civil Procedure Code or the principles underlying it would be applicable to these cases. Even granting for purpose of argument, that those principles would beapplicable, the Court has to satisfy itself before applying them that such application would not lead to injustice, as observed by the Supreme Court in Lal Bhagwant Singh -v.-Sri Kishen Das, : 4SCR559 . We are of the opinion, that no serious public prejudice would be caused in allowing the vehicles in question to continue to have the existing seating capacities. But, on the other hand it will result in injustice to thepetitioners if they are compelled to dismantle the bodies of the vehicles and reconstruct them with larger seating capacities. It is significant that new Rule 216 itself recognises the continuance of vehicles with seating capacities less than what is prescribed under that Rule even after itspromulgation provided their bodies were either constructed or altered prior to 17-10-1969. In the circumstances of the cases we hold that the Regional Transport Officers who are Respondents in these cases, were not right in calling upon the petitioners to increase the seating capacities of their vehicles so as to bring them in conformity with the seating capacities prescribed in Rule 216. We are also not impressed by the submission made by the Learned Government Advocate that the Regional Transport Officers had power to correct the errors in their earlier orders according permission to the petitioners regarding the construction or alteration of the bodies of the vehicles and that they had the power to call upon the owners of the vehicles to bring the seatingcapacities of the vehicles in conformity with the Rule. When the Statute and the Rules are silent we cannot in thecircumstances of these cases infer that the Regional Transport Officers have such power of rectification.
7a. We shall now advert to the notices issued by the Regional Transport Officers calling upon some of thepetitioners to pay the difference between the tax they would have been liable to pay had the vehicles been constructed to have seating capacities in accordance with Rule 216 and the tax actually paid by them. The liability to pay the tax in these cases is governed by the provisions of the Taxation Act. Section 3 of that Act which is the charging provision directs that a tax at the rates specified in part A of the Schedule of the Act shall be levied on all the Motor Vehicles suitable for use on the roads kept in the State of Mysore. The vehicles in question fall either under item 4 or 4A of part A of the Schedule to the Taxation Act. Under those items Tax is payable on the basis of the actual seating capacities of the vehicles. As already mentioned, the petitioners have paid taxes under the Taxation Act on the basis of the number of seats actually provided in the vehicles. There is no provision in the Taxation Act authorising the Tax Officer to levy tax on the basis of the number of seats that could or should have been provided in the vehicles. Hence the demands which are impugned in these petitions are liable to be quashed.
8. The last question which arises for consideration inthese cases relates to the power of the Regional TransportOfficers to call upon the owners of the Motor Vehicles,which have been registered outside the State of Karnatakaand whose bodies are either constructed or altered in accordance with the permission accorded by the concerned Transport Authorities outside the State of Karnataka, to altertheir seating capacities and to bring them in conformity withthe seating capacities prescribed under Rule 216(2), afterthose vehicles are brought into the State of Karnataka andassigned new registration marks under Section 29 of theMotor Vehicles Act.
9. Section 28 of the Motor Vehicles Act provides thatsubject to the provisions of Section 29 a motor vehicleregistered in accordance with Chapter III of Motor VehiclesAct in any State shall not be required to be registered else-where in India and that a Certificate of Registration issuedor in force under the Motor Vehicles Act in respect of suchvehicle shall be effective throughout India. Section 29 ofthe Motor Vehicles Act only authorises the assignment of anew registration mark to a vehicle which is already registeredoutside the State, if the vehicle is kept in the Statefor a period exceeding 12 months. Section 29 does notenvisage a fresh registration of the vehicle, and theauthority which is empowered to assign a fresh registrationmark, under Section 29, is not authorised to require theowner of the vehicle to alter its seating capacity so as tobring it in conformity with any Rule that may be in force inthe State in which fresh registration mark is sought beforeassigning such new registration mark. In fact, the Rulesalso do not confer any such power on the Regional Trans-port Officers who are authorised to assign new registrationmarks under Section 29.
10. In the result we allow these petitions and make the following order :
(a) Wherever the petitioners have been served with the notices asking them to alter the seating capacities of their vehicles and to bring them in conformity with the seating capacities prescribed in Rule 216 we quash the said notices ;
(b) Wherever the petitioners have been asked to pay the differencebetween the tax which they would have been liable to pay hadthe seating capacities of the vehicles been in conformity withRule 216 and the tax actually paid by them, we quash the noticesof demand asking them to pay such difference ; and
(c) In the cases of those vehicles which were originally registeredoutside the State of Karnataka and are brought into the State ofKarnataka for the purpose of using them as either stage carriages or contract carriages, we quash the notices issued by the RTOs asking the petitioners to alter the seating capacities of the vehicles and to bring them in conformity with the provisions of Rule 216 of the Rules.
We, however, make it clear that it would be open to the RTOs to insist on compliance with Rule 216 when the petitioners make applications hereafter for reconstruction of the bodies of the Motor Vehicles in question.