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Bhagirathi Mohanty Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 738 of 1972
Judge
Reported inAIR1974Ori205; 40(1974)CLT681
ActsMotor Vehicles Act, 1939 - Sections 48(3); Orissa Motor Vehicles Rules, 1940 - Rule 65; Constitution of India - Article 14
AppellantBhagirathi Mohanty
RespondentState of Orissa and ors.
Appellant AdvocateR. Mohanty and ;G.P. Mohanty, Advs.
Respondent AdvocateStanding Counsel (Transport)
DispositionApplication partly allowed
Excerpt:
.....glt 246, are not good law]. - the impugned resolution is challenged on the ground that while the rule permitted a condition to be attached to the permits, the resolution went beyond the rule and, therefore, was bad. 5. it is well-known that the motor vehicles act, 1939 (hereafter referred to as the act) has the convenience of the travelling public as its paramount consideration. according to him, if a motor vehicle has not run sufficiently though it is 10 years old and is in perfect condition, should it be kept away from the road merely because it is 10 years old? again, if a 10 years old vehicle has been completely re-conditioned and is in a very good and working state, should it be kept out of the road merely because it is already 10 years old? but to make provision that a 10-year..........article 14 of the constitution. the impugned resolution is challenged on the ground that while the rule permitted a condition to be attached to the permits, the resolution went beyond the rule and, therefore, was bad. 2. in the counter-affidavit, the transport authority has indicated that by a subsequent resolution dated 24-10-1972, the earlier resolution has been superseded. a year's time has been allowed for replacement of such vehicles. 3. learned standing counsel of the transport department relying on the later resolution raised a preliminary objection saying that the impugned resolution stood superseded and the petitioner had, therefore, no grievance in the application to make. 4. upon hearing learned counsel for parties, we find no force in the preliminary objection. the effect of.....
Judgment:

R.N. Misra, J.

1. The petitioner is a transport operator of the district of Balasore and owns three stage carriages bearing registration numbers ORB 101, ORB 565 and ORB 1067. These stage carriage vehicles have permits issued by the Regional Transport Authority of Balasore. For the first vehicle the petitioner has a live permit up to 3-10-1974, while for the other two vehicles, the permanent stage carriage permits have expired on 11-11-1973, during the pendency of this application and it is not known as to what happened thereafter.

Rule 65-C of the Orissa Motor Vehicles Rules, 1940 (hereafter referred to as the Rules) introduced by amendment with effect from 16-7-71, provides :

'The Regional Transport Authority may attach to a permit for a stage carriage or a contract carriage the condition that a motor vehicle in order to operate under such a permit shall not be morethan 10 years old from its year of manufacture.'

Relying upon the said Rule, the Regional Transport Authority of Balasore by resolution No. 1 of the meeting held on 27-4-1972 required replacement of the 10-year old vehicles following a notice for a period of ninety days by all operators within its jurisdiction. Annexure 3 which is the relevant resolution read thus :

'The State Government by an amendment of the Rule 85 of Orissa Motor Vehicles Rules, 1940, have inserted a new Rule 65-C which lays down that the Regional Transport Authority may attach to a permit for stage carriage or a contract carriage the condition that a motor vehicle in order to operate under such a permit shall not be more than 10 years old from its year of manufacture. In accordance with the provisions of the said rule, the Regional Transport Authority decided that all the stage carriages and contract carriages plying irrespective of the length and nature of the routes in this region, which are ten years old from their year of manufacture, should be replaced within three months' time.........'

The petitioner in this application challenges the vires of Rule 65-C as also the impugned resolution. It is contended that unbridled and unguided power has been vested in the Transport Authority by the Rule and, therefore, the Rule is hit by Article 14 of the Constitution. The impugned resolution is challenged on the ground that while the Rule permitted a condition to be attached to the permits, the resolution went beyond the Rule and, therefore, was bad.

2. In the counter-affidavit, the Transport Authority has indicated that by a subsequent resolution dated 24-10-1972, the earlier resolution has been superseded. A year's time has been allowed for replacement of such vehicles.

3. Learned Standing Counsel of the Transport Department relying on the later resolution raised a preliminary objection saying that the impugned resolution stood superseded and the petitioner had, therefore, no grievance in the application to make.

4. Upon hearing learned counsel for parties, we find no force in the preliminary objection. The effect of the impugned resolution of April, 1972, has not been annulled or withdrawn. The subsequent resolution has only modified the enforcement in point of time.

5. It is well-known that the Motor Vehicles Act, 1939 (hereafter referred to as the Act) has the convenience of the travelling public as its paramount consideration. Section 48 thereof dealingwith the grant of stage carriage permits authorises the Transport Authority to attach to the permit any one or more of the conditions specified in Clauses (i) to (xxi). Condition No. (ix) under Section 48 (3) of the Act is to the following effect:--

'that vehicles of specified types fitted with bodies conforming to approved specifications shall be used.'

The requirement that vehicles more than 10 years' old from the year of manufacture would not ply on the road would indeed be a prescription of the type contemplated under condition No. (ix). Rule 65-C occurs in Chapter IV of the Rules dealing with control of transport vehicles and Rule 65 is concerned with stage carriages. To specify that a vehicle more than 10 years' old from its year of manufacture would not run under a permit granted by the Transport Authority under the Act can, therefore, be a condition attached to a permit under Section 48 (3) (ix) of the Ac

We are not impressed with the argument of learned counsel for the petitioner that the restriction is unreasonable. Keeping in view the type of vehicles used, the conditions of the roads upon which the vehicles run, the nature of use to which the vehicles are put to, the want of care and attention warranted for proper preservation and maintenance of the vehicles, the typical conditions under which the vehicles operate, etc., a ten-year period seems to be a reasonable one and exception cannot be taken on any general ground.

Mr. Mohanty for the petitioner gave certain illustrations to support his contention that if the resolution is enforced without application of mind, it would work out hardship. According to him, if a motor vehicle has not run sufficiently though it is 10 years old and is in perfect condition, should it be kept away from the road merely because it is 10 years old? Again, if a 10 years old vehicle has been completely re-conditioned and is in a very good and working state, should it be kept out of the road merely because it is already 10 years old? These certainly are situations where, if the convenience of the travelling public is the foundation in the Rule, objection cannot be taken on the ground that the vehicle is already 10 years old from the date of its manufacture. Attaching a condition to a permit to the effect that more than 10 years old vehicle would not be allowed to ply under that permit may in such circumstances be unjustified. But to make provision that a 10-year old vehicle would not run under a permit would not ordinarily be bad. There is no doubt that such a condition actually ensures proper running of stage carriagesand, therefore, fits in with the purpose of the statute.

6. The Regional Transport Authority is a quasi-judicial body and lots of quasi-judicial functions have been vested in it under the statute. Provision for hearing has also been made both under the Act and under the Rules. There is no fear therefore, that the discretion vested in the Regional Transport Authority is likely to be abused. Rule 65-C which enables a Transport Authority to attach such a condition, therefore, is not open to attack under Article 14 of the Constitution.

7. Now we shall deal with the attack of the petitioner against the impugned resolution. The material portion of the resolution reads thus:--

'......... The Regional Transport Authority decided that all the stage carriages and contract carriages plying irrespective of the length and nature of the routes in this region, which are ten years old from their year of manufacture, should be replaced within three months' time........'

The modification brought about under Annexure B (the later resolution dated 24th October, 1972) was for incorporation of a condition to the following effect:

'......... The vehicle in order to operate under this permit shall not be more than 10 years old from the date of its manufacture that is the permit shall cease to be operative 'when the vehicle completes 10 years of age from the orders of the competent authority, provided that attachment of this condition shall not prevent the continued use of the vehicle for a period of one year from the date of resolution.'

Rule 65-C authorised attachment of a condition to a stage carriage permit. The impugned resolution of 27-4-1972 instead of deciding to attach a condition to a permit directed replacement of such vehicles within three months. Rule 65-C never authorised a Transport Authority to make a direction as made on 27-4-1972. Rule 65-C came into the Rules with effect from 16-7-1971. Therefore, permits which had been granted prior to this date did not have attached to the permit a condition that under it, a ten-year old vehicle from its year of manufacture would not be permitted to operate. Section 48 (3) of the Act vests power in the Transport Authority to attach any, some or all of the conditions specified therein to a stage carriage permit. Since it is conceded that Rule 65-C is with reference to Section 48 of the Act, the Regional Transport Authority had no jurisdiction in the absence of such a condition having been attached to the permit, to require the existing ope-rators to replace their vehicles in case the same were ten years old from the date of manufacture. The impugned resolution is thus in excess of powers vested in the Transport Authority.

8. The subsequent resolution (Annexure B) which is not impugned before us appears to be more in accord with Rule 65-C. It stipulates attachment of an additional condition in terms of Rule 65-C.

The proviso to Section 48 (3) (ix) of the Act has, however, been lost sight of. The proviso reads :--

'Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operating on that date.'

Where the Regional Transport Authority at the time of grant 'or renewal of a stage carriage permit has incorporated a condition of the type mentioned under Clause (ix), it would be open to the Regional Transport Authority to declare the approved specifications and under the Proviso the operator would have two years' time to give effect to the condition.

9. We are, therefore, satisfied that Rule 65-C of the Rules is not ultra vires the Act or the Constitution. Yet, the impugned resolution of 27-4-72 is bad being contrary to Section 48 (3) of the Act as also Rule 65-C of the Rules. We accordingly quash the resolution. It is open to the Regional Transport Authority to take appropriate steps as envisaged in Section 48 of the Act read with Rule 65 of the Rules. The writ application succeeds in part. Parties shall bear their own costs of the proceeding.

B.K. Ray, J.

10. I agree.


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