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Prakash Chandra Vishnu Kumar Vs. State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. No. 3089 of 1957
Judge
Reported inAIR1959All373
ActsMotor Vehicles Act, 1939 - Sections 2(8), 2(33), 52, 53(2) and 68; Uttar Pradesh Motor Vehicles Rules, 1940 - Rule 94; Constitution of India - Articles 14 and 19(1)
AppellantPrakash Chandra Vishnu Kumar
RespondentState of U.P. and anr.
Appellant AdvocateP.N. Katju, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
.....rule, 1940 and sections 2(8), 2(33) and 68 of motor vehicles act, 1939 - private carrier is a transport vehicle and rule 94 applicable to them. (ii) constitutional validity of the conditions imposed in the permit - sections 52 and 53 (2) of motor vehicles act, 1939 - conditions imposed are for furtherance of permit and does not conflict with articles 14 and 19. - - it is therefore in perfect harmony with the purpose of the permit itself that he is asked to carry specific goods only, they being such goods in which he deals or which he owns. one can well see that in the absence of a list of the goods a dishonest permit holder may easily misuse the permit for purposes it is not intended. it may as well be that the initial journey commenced from some place outside kothdwara for..........termination of a journey, and of any halts on a journey and so on.a transport vehicle includes a goods vehicle in view of its definition contained in clause (33) of section 2 of the motor vehicles act and a goods vehicle in turn means any vehicle, as defined in clause (8), constructed or adapted for use for the carriage or goods. a private carrier which is a vehicle adapted for the use of the carriage of goods is thus a transport vehicle and rule 94 will apply to it. the petitioner's contention that no rule existed authorising the regional transport authority to require a log book to be maintained or returns to be furnished periodically is under the circumstances not valid.6. we are thus left with the other ground only in these cases, namely, whether the condition with regard to the.....
Judgment:
ORDER

J.K. Tandon, J.

1. These are two separate petitions Nos. 3089 of 1957 and 3090 of 1957, the former by Messrs Prakash Chandra Vishnu Kumar and the latter by Messrs Puran Mal Prabhat Ranjan, both doing business in food grains and other articles at Kothdwara in district Garhwal. Similar questions have been raised in both the petitions. They have therefore been heard together.

2. The facts in petition No. 3089 of 1957 are that a permanent private carrier permit No. 40 was granted to the concerned petitioner for a transport vehicle No. U. P. Y. 574 on 7-9-1955. It is valid upto 6-9-1958. In the permit that was granted to this petitioner under the Motor Vehicles Act two conditions amongst others were provided, firstly, with regard to the nature of the goods to be carried by him in the vehicle and, secondly, with regard to the maintaining of log book showing the journey etc. performed by the vehicle. The condition about the carrying of goods read as follows:

'for carriage of food grains, flour, edible oils, salt, sugar, gur Ilaichidana, dals, Biri and matches on up journey, on return journey to bring empty used bardana and empty used tins of his own.'

It was also provided in another condition that the permit holder shall not carry restricted commodities without permit.

3. In the case of the other petition No. 3090 of 1957 a similar permanent private carrier permit No. 64 was granted to the petitioner on 24-6-1957 to be valid upto 23-6-1962 for vehicle No. U.P.Y. 619. In the relevant permit once again condition No. 6 laid down the nature of goods to be carried in the vehicle while condition No. 8 made provision for maintenance by the permit holder of a log book and for submission of periodical returns to the transport authority. There was again provision in another condition incorporated in the permit that the permit holder shall not carry restricted goods without permit.

4. The two petitioners, it appeared, separately moved the Regional Transport authority for addition of certain fresh commodities in the list of articles which they could carry under condition No. 6 of their respective permits. These applications have, it is alleged, remained undisposed of. It is however not necessary for the purposes of these petitions to mention the fate of these applications as the petitioners have not asked any relief with respect to them.

Their complaint, on the other hand, is that the Regional Transport Authority had no jurisdiction to impose condition restricting the carrying of goodsowned by the petitioners in their private carriers, that Section 53(2) which gave them the power to do so was ultra vires of the Constitution as it was in conflict with articles 19 and 14. They have therefore attacked the condition itself in that behalf contained in the permit which described the articles which they could transport in the vehicles covered by the permits.

Either petition has not stated the particular provision of Article 19 which is offended by the impugned conditions. Their learned advocate has however, relied on Sub-clause (g) of Clause (1) of the article which guaranteed the right to practise any profession or carry on any profession or trade. With regard to the condition relating to the maintenance of log book and submission of periodical returns, the complaint is that this is not required by any rules framed under Section 68 of the Motor Vehicles Act and in their absence a condition in that behalf is illegal.

The reliefs asked in the two petitions accordingly are a writ of mandamus directing the Regional Transport authority not to give effect to the conditions in the permits restricting the petitioners from carrying the goods owned by them on the routes granted to them irrespective of the fact whether they are named in the condition or not and for the quashing of the said condition, Similar prayer has been asked with regard to the condition relating to the maintenance of log book and the submission of periodical returns.

5. It may at the very out set be stated that Rule 94 framed under the Motor Vehicles Act provides that the Regional Transport Authority may by general or special order require the owner of any transport vehicle to maintain and submit returns in respect of the vehicle in such manner as the Authority may specify, and such record and returns may include particulars of the daily use of the vehicles, the time of commencement and termination of a journey, and of any halts on a journey and so on.

A transport vehicle includes a goods vehicle in view of its definition contained in Clause (33) of Section 2 of the Motor Vehicles Act and a goods vehicle in turn means any vehicle, as defined in Clause (8), constructed or adapted for use for the carriage or goods. A private carrier which is a vehicle adapted for the use of the carriage of goods is thus a transport vehicle and rule 94 will apply to it. The petitioner's contention that no rule existed authorising the Regional Transport Authority to require a log book to be maintained or returns to be furnished periodically is under the circumstances not valid.

6. We are thus left with the other ground only in these cases, namely, whether the condition with regard to the nature of articles which may be carried in the vehicles is in conflict with the guarantee contained in Articles 14 and 19(1)(g) of the Constitution. A private carrier has been defined in the Motor Vehicles Act to mean an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport, or who uses the vehicle for any of the purposes specified in Sub-section (2) of Section 42. A private earner is thus essentially one who uses the vehicle solely for the carriage of goods which are his property or the carriage of goods which are necessary for the purposes of his business other than a business of providing transport.

It is in the very nature of the provision that the vehicle in respect of which the permit is, is usedfor the carriage of goads which are the property of the permit holder or the carriage of which is necessary for the purposes of his business. He cannot by virtue of being a private carrier transport goods which are either not his property or do not belongto the business carried on by him.

7. Section 52 of the Motor Vehicles Act makes provision for a private carrier's permit. The application is to contain the following particulars:

(a) the type and carrying capacity of the vehicle,

(b) the nature of the goods which the applicant expects normally to carry in connection with his trade or business;

(c) the area for which the permit is required; and

(d) any other particular which may be prescribed.

8. The next section lays down the procedure for considering applications for private carrier's permit. Sub-section (1) provides that a Regional Transport Authority shall, in deciding whether to grantor refuse a private carrier's permit, have regard to the condition of the roads to be used by the vehicle or vehicles in respect of which the application is made, and shall satisfy itself that the vehicle or vehicles for which the permit is required will not be used except in connection with the business of the applicant.

Once again, as may have been noticed, stress has been laid by the Legislature on the fact that the permit shall not be used except in connection with the business of the applicant. The reason is obvious and it is that in its very nature, a private carrier's permit is intended for transport of goods owned or needed in connection with the trade or business of the permit holder and not for carrying on his business generally of transporting goods be-longing to others which can be done under a public carriers permit.The next sub-section has therefore laid down that the Regional Transport Authority can in granting the private carrier's permit impose conditions in the permit relating to the description of the goods which may be carried. It is by virtue of these provisions that the condition in the two permits relating to the nature of commodities, which may be carried in relevant vehicles, has been included.

9. It is not disputed that the provision itself of the Motor Vehicles Act providing for the grant of a private carrier's permit and the restriction against using a transport vehicle without such a permit is constitutionally valid. What is objected to is thathe power to impose a condition that goods, which are specified in the permit or in which the permit holder may be dealing, can alone be carried.

In the first place the contention is that it is an unreasonable restriction on the freedom to carry on any trade or profession guaranteed by Sub-clause (g) of Clause (1) of Article 19, and, secondly, that the provision in that behalf contained in Sub-section (2) of Section 53 of the Motor Vehicles Act is vague andgives an arbitrary power to the Regional Transport Authority to discriminate between persons and persons. In other words, the law does not contain the necessary guidance in that behalf to the Regional Transport Authority.

10. Once it is conceded that the provision relating to private carrier's permit is constitutionally valid, the argument that any condition in the permit restricting the use of the vehicle for goods in which the permit holder deals or goods which he owns isa restriction on the freedom of the trade becomesuntenable. A private carrier is intended for carrying goods which may be owned by the owner of thevehicle or in which he may be dealing. The permit itself is confined to these purposes and any condition which requires that the vehicle shall be used for these purposes only is in fact in furtherance of the purpose of the permit rather than a restriction on it.

A private carrier cannot use the vehicle in respect of which the permit is held for carrying on the business of transport. In other words, he cannot use the vehicle for transporting other goods. He can carry his own goods or goods in which he deals. It is therefore in perfect harmony with the purpose of the permit itself that he is asked to carry specific goods only, they being such goods in which he deals or which he owns.

I do not think the fact that these goods are required to be specified in the permit imposes any restriction on the business carried on by him. As has been pointed out the purpose of this condition is that the permit holder uses the vehicle for the purpose for which it is permitted and does not indulge in transporting goods of others to which he is not entitled by the particular permit.

11. Section 52 under which the necessary application for a private carrier permit has to be made has therefore required in Clause (b) that the application shall state the nature of goods which he expects normally to carry in connection with his trade or business. To the same end is the provision in Sub-clause (1) of Section 53 which requires that the Regional Transport Authority shall satisfy itself that the vehicle for which the permit is required shall not be used except in connection with the business of the applicant. The scheme of Sections 52 and 53 is that the permit itself shall be for the purposes of carrying goods in which the applicant deals and further that the vehicle is not used for a different purpose, including the carrying of goods of others for hire or reward, for which a different type of permit is required under the Act.

12. It was also contended by the learned counsel of the applicants that the specification in the permits themselves about the goods amounted to an unreasonable restriction as it was not any event in public interest. I am unable to accept this contention. As earlier stated the very purpose of the permits is a limited one and what is intended by the description of the goods is really in furtherance of the purpose rather than any restriction.

The commodities are mentioned to ensure, to which end the Legislature has made provision also in Sub-section (1) of Section 53, that the vehicle is not used except in connection with the business of the applicant. In Clause (b) of Section 52 the applicant himself gives a list of the goods in which he normally deals. The list which therefore is entered in the permit is not an arbitrary list prepared by the Regional Transport Authority but is a list formulated in the background of the information furnished by the applicant himself. It cannot also be said that it is not in public interests either having regard to the fact that the permit itself is limited to the restricted purpose of carrying his own goods etc. and not carrying goods of others for hire or reward for which the law has required a different type of permit to be obtained.

One can well see that in the absence of a list of the goods a dishonest permit holder may easily misuse the permit for purposes it is not intended. Public interest demands that a permit is used for the purpose for which it is granted. Accordingly the description of the articles in which the permit holder deals in the permit must be held to be in public interest.

13. I do not therefore think that the effect of such a condition being incorporated in the permit is an unconstitutional encroachment on the freedom of trade or business assured under Sub-clause (g) of Clause (1) of Article 19 of the Constitution.

14. Before taking up the other objection which relates to the terms of the condition, the objection with regard to Article 14 might be taken up. The learned counsel for the petitioners urged that Section 53(2) which authorised the Regional Transport Authority to specify goods which may be carried was vague and gave too arbitrary a power. In order to judge this fact it is necessary to refer to Section 52 and also to Sub-section (1) of Section 53.

Section 52 requires certain particulars to befurnished out of them two are (1) the nature ofgoods which the applicant expects normally tocarry in connection with his trade or business and(2) the area for which the permit is required. Subsection (1) of Section 53 requires the Regional TransportAuthority to have regard to the condition of theroads to be used by the vehicle or vehicles in respect of which the permit is to be granted and alsoto satisfy himself that the vehicle will not be usedexcept in connection with the business of the applicant.

The definition of a private carrier also inherently requires that the transport vehicle in respect of which the permit is held is used for the carriage of goods which are the property of the permit holder or in which the permit holder deals. It is under this section that the Regional Transport Authority is required by Sub-section (2) of Section 53 to impose conditions relating to the description of the goods which may be carried or the area in which they may be carried.

He has to take into consideration the nature of goods in which the applicant normally deals, the condition of the road on which the vehicle is ultimately plied and the capacity etc. of the vehicle itself. He has also to keep in view that the vehicle is not used except in connection with the business of the applicant. All these, to my mind, contain sufficient guidance for the Regional Transport Authority in preparing the list of goods which may be carried in the vehicle.

It is not a case of an arbitrary exercise of discretion. On the contrary, the discretion in preparing the list is to be exercised in the background of matters provided for in Section 52 and Sub-section (1) of Section 53 and of the nature of the permit itself. Thus the charge that the power conferred by Sub-section (2) of Section 53 is arbitrary and discriminatory cannot be sustained.

15. Coming now to consider the condition giving a list of the commodities which may be carried, the objection is two-fold once again. Firstly, it is contended that read with the other conditions, namely, that the permit holder shall not carry restricted goods without permit the list restricted the right of the permit holder to carry specified goods only and that he could not carry other goods belonging to him though he may be dealing in them.

The second objection is that the condition, as it is worded, entitled the petitioners to carry goods on the outward journey alone and he could not carry any such goods on the backward or home journey. I do not think there is much substance in the first objection because neither condition 6 itself nor this condition read with the other condition about the restricted goods barred right of the petitioners to carry other commodities in which they dealt.

What they really point out is that while commodities mentioned in condition 6 can be carried in the ordinary course, in the case of restricted goods, which expression has not been defined in the condition and about the meaning of which there is considerable difficulty, he has to obtain a permit. Since the list contained in the conditions is prepared in the background of the information furnished by the permit-holder himself in his application under Section 52 of the Motor Vehicles Act, it cannot successfully be urged that he is debarred from carrying, other goods belonging! to his trade.

He can certainly, as the condition stands, carry goods which otherwise belong to his trade and which may not be included in the list but what is necessary is that he obtains the permit in that behalf from the Regional Transport Authority. This is considered necessary to ensure that goods which have no connection with the business of the permit-holder are actually not carried. When the list itself is prepared on information given by the permit-holder himself it cannot successfully be urged that he has been denied the right to carry his goods for which purpose the permit has been granted to him.

He can certainly carry them but where they are not specified in the list all that the law requires is that he shall obtain the necessary permit from the Regional Transport Authority which provision has been considered necessary to ensure that the vehicle is not used otherwise than as a private carrier. I do not think the condition can be assailed on the ground.

16. In this connection it was also urged that the condition was open to the interpretation that the commodities could not be carried on the return journey. As the language of the condition itself in Writ No. 3090 of 1957 stands, this interpretation does not appear to be correct. What is provided, on the other hand, is that the vehicle on its return journey can travel empty also. Which will be return journey in any particular case is a question which will depend on the circumstances in which the journey was undertaken. It will not necessarily always be a journey from Kothdwara to destination outside that town. It may as well be that the initial journey commenced from some place outside Kothdwara for destination in Kothdwara.

17. In view however, of the stand taken by the opposite party here before me that the petitioners are entitled to carry goods only from Kothdwara to other places and not on the return journeywithout a permit it becomes necessary to decide this aspect also of the matter. Neither Section 52, nor for the matter of that Sub-section (1) or Sub-section (2) of Section 53 of the Motor Vehicles Act, contemplates any restriction of the nature that the goods can be carried on one journey alone.

The essence of the definition of a private carrier also is that the vehicle is used for the carriage of the goods which are the property of the permit-holder or in which he deals. In the course of normal dealing it may sometimes be necessary to carry goods from the place of business to other destinations and at other times from other placesto the place of business itself.

Any restriction which has the effect of restricting the use of the vehicle on one journey only compelling it to return empty on the return journey will, in my opinion not be consistent with the scheme of Sections 52 and 53. Even the argument advanced by the learned counsel for the State that normally a trader will send goods from his place of business only and not bring goods back from other places to place of business has not appealed to me.

It is easily conceivable that occasions will frequently arise in the course of business that goods, being goods in the business, are to be carried or transported back and fro. Nor his argument that the return journey can be performed with the permit will serve any real answer when it is realised that in very genuine cases it may often be impossible for the permit-holder to obtain a permit in reasonable time to carry back the goods. Restriction against carrying commodities on the return journey cannot under the circumstances be sustained.

18. The net result of the foregoing discussion is that the petitioners cannot object to the inclusion of the impugned conditions in the permit but to the extent it is sought to restrict their right to carry the specified goods on the outward journey alone, as distinguished from homeward journey, the condition cannot be sustained and must pro tanto be held to be invalid. In appropriate cases such a condition may be possible but there is nothing, so far as the cases here are concerned to justify any such restriction. Therefore subject as aforesaid the two writ petitions must fail and I direct accordingly. I make no order as to costs. This order will also govern writ petition No. 3090 of 1957.


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