w w w . L a w y e r S e r v i c e s . i n



ANAND VERSUS REGIONAL TRANSPORT OFFICER, DHARWAD

    W.P. 5704 of 1997

    Decided On, 04 March 1997

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE H.N. TILHARI

    For the Appearing Parties: B.R.S.Gupta, H.Kantharaj, Advocates.



Judgment Text

H.N. TILHARI, J.


( 1 ) BY this petition under Art. 226 of the Constitution of India petitioner has sought for quashing of order Annexure 'a' to the writ petition which is an endorsement bearing No. RTO/new/reg/tr/maxi CAB/dwd/96-97 dated 27-2-1997 and has also prayed for issuance of writ of mandamus directing the respondent to register petitioner's new vehicle as maxi cab with seating capacity of 12 + 1. Vide Annexure-'a', the Regional Transport Officer, Dharwad has rejected the petitioner's application in the prescribed form for registration of Eicher Motors Ltd., bearing Chassis No. 14ef 6 1143284 to register as Maxi Cab with seating capacity of 12 + 1 on the ground that "the M.V. Eicher Motors Ltd., having a wheel base of 3350 mm. is not exempted under the Govt. Notification No. CT. TIR. PR. 24 dated 3-5-1995 issued under Rule 152 (2) (3) of KMV Rules, 1989 to register as a maxi cab with seating capacity of 12 + 1. Hence, his application is rejected and the application is returned herewith. " Having felt aggrieved from that order, the petitioner has come up in this writ petition.


( 2 ) I have heard the learned counsel for the petitioner and the learned Government Pleader also.


( 3 ) THE learned counsel for the petitioner contended that the respondent rejecting the application had acted illegally and it had failed to take note of the principles of law as laid down by this Court while examining the exemption clause under the Rules and the Notification issued by the Government in this regard. Learned counsel for the petitioner contended that the petitioner's vehicle which has a wheel base of 3350 mm. , which comes within the range of 2260 and 3760 mm. and as such, exemption conferred under Notification could be extended to the petitioner's vehicle even if it did not come within the purview of Column No. 2 of the Notification. Learned counsel made reference to Notifications dated 4-11-1991, 26-3-1992, 13-4-1993 and on this basis submitted that these three Notifications indicate the wheel base of the petitioner's vehicle have been covered in between 2260 and 3760 mm. of the last Notification of 1993 and the exemption benefit should have been granted to the petitioner's vehicle also from operation of sub-rule (2) of Rule 151 of the Rules irrespective of the fact that the petitioner's vehicle is made up of by Eicher Motor Ltd. , The learned counsel further submitted that even though Eicher Motor Limited make up is not mentioned in Column No. 2 of the Notification or either under the subsequent Notifications because of the wheel base is in between the figures 2260 and 3760 mm. , the RTO should have taken that exemption and should have granted the exemption to the petitioner's vehicle from operation of Rule 151 (2) of the Karnataka Motor Vehicles Rules. Learned counsel for the petitioner placed reliance on the single Judge decision of this Court in Gaffar Khan v. Regional Transport Authority, (W. P. No. 22572/1992 decided on July 19, 1993). He also placed reliance on another judgment of the same Judge in writ petition No. 31518/1994 V. S. Hukkeri v. Regional Transport Officer, Dharwad. Sri Gupta, learned counsel for the petitioner also made reference to the decision dated 19th December 1994 delivered by Hon'ble Sri T. S. Thakur,. , in writ petition No. 33490/94 and the decision dated 5th July 1986 in Writ Petition No. 16528/96 Doriswamy Naidu v. Regional Transport Officer : Registering Officer in support of his contentions and he has put emphasis on Paragraph 3 thereof. I have perused those judgments. Before I proceed to deal with those judgments, I think it would be proper to make a reference to the provisions under the Rules.


( 4 ) KARNATAKA Motor Vehicles Rules, 1989 have been framed under the Act. e. Motor Vehicles Act, 1988. Rule 151 of the Rules deal with the limit of seating capacity. Sub-rule (3) of Rule 151 provides that sub-rules 1 and 2 of Rule 151 which deal with the minimum seating capacity of the vehicle, shall not apply to certain category of vehicles, which are : (a) Stage carriages proposed to be operated in towns and cities and within a radius of 25 Kms. from the limits of such towns and cities. (b) Tourist vehicles covered by permits issued under sub-sec. (9) of S. 88 of the Act. Clause (c) has been introduced under sub-rule (3) of Rule 151 whereunder special powers have been conferred on the State Government to grant exemption to public service vehicles and class of vehicles that may be specified and that exemption may be granted subject to certain conditions that may be specified in the Notification granting exemption. It will be just and proper to quote Rule 151 in extenso. "151. Limit of seating capacity,- (1) Subject to the provisions of the Rule 146 regarding seating accommodation, the number of passengers excluding the driver and conductor or attender that a transport vehicle other than goods carriage, motor cab may be permitted to carry, shall not exceed the number determined by dividing by 58 kilograms the difference in kilograms between the gross laden weight less 109 kilograms and the unladen weight of the vehicle. (2) The minimum seating capacity of a vehicle shall be directly proportionate to the wheel base of the vehicle. In transport vehicles other than goods carriages and motor cabs the minimum number of seats including two seats for driver and conductor or attender to be provided shall be as specified in column (2) of the Table below :-Table - xxx xxx xxx xxx (3) Nothing in sub-rule (2) shall apply to,- (a) Stage Carriage proposed to be operated in towns and cities and within a radius of 25 kms. from the limits of such towns and cities. (b) Tourist vehicles covered by permits issued under sub-sec. (9) of S. 88 of the Act. (c) Notwithstanding anything contained in sub-rules (1) and (2), the Government may by notification in the official gazette exempt any public service vehicle or class of such vehicles used in any specified areas from the provisions of above sub-rules either generally or for a specified period subject to such conditions as may be specified in that behalf. "it may be taken note of that this clause (c) which confers the power on the State Government to grant exemption by the mode specified therein, has been inserted by Motor Vehicles (Second Amendment) Rules, 1990 dated 25th June 1990 with effect from that date. e. 25-6-1990. The Notification that had been placed before me by the learned counsel for the petitioner, as the Notifications are not inserted along with the writ petition, a perusal thereof reveals that in all those notifications, it has been mentioned that the notifications had been issued by the State Government in exercise of powers conferred under clause (d) of sub-rule (3) of Rule 151 of the Karnataka Motor Vehicles Rules, 1989. For illustration, I am quoting the Notification dated 4th of November 1991 as placed before me by the learned counsel for the petitioner. Notification No. FD. 90. MA. 1991, Bangalore dated 4th November 1991 -In exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 151 of the Karnataka Motor Vehicles Rules, 1989, the Government of Karnataka hereby exempts the following class of public service vehicles specified in Column (2) of the table below which are used in the State of Karnataka from the provisions of sub-rule (2) of said rule. 1st column - Sl. No. , 2nd column - class of public service vehicles, 3rd column - wheel base in centimeters. There are 10 types of vehicles mentioned in column with their description as Matador F 305, Matador F 307 etc. , In column (3) their wheel base of each category is mentioned, which has been granted exemption from operation of sub-rule (2) of Rule 151. This order has been issued under the signature of Under Secretary to Government, Food and Transport Department. There is another notification that has been placed before me by the learned counsel for the petitioner. There also I find mentioning of clause (d) as in the Notification of the year 1991. Another Notification dated 30th April 1993 which has also been placed before me, the provisions mentioned are that in exercise of powers under Rule 151 (3) (d) Notification was issued. In Notification dated 26th of March 1992, exemption was granted to only one category of vehicles which had been mentioned as Eicher Mitsubishi Canter bus having wheel base 2750 mm. and in Notification dated 13th April 1993 in the column of classification of class of vehicles. e. column No. (2) the description of the vehicle which the Government proposed to exempt and then in column No. (3) its wheel base is mentioned. Learned counsel for the petitioner admits that the petitioner's vehicle is not mentioned in either of these Notifications. The learned counsel submits before me that the wheel base which the petitioner's vehicle got is in between two. e. 2260 mm and 3760 mm. I, with the assistance of the learned counsel for the petitioner and other counsel made best efforts to find out clause (d) in Rule 151 (3) that whether it has been introduced by any amendment.


( 5 ) I have perused Karnataka Motor Vehicles (First Amendment) Rules, 1989, Karnataka Motor Vehicles (Second Amendment) Rules, 1990. I have also perused the Karnataka Motor Vehicles (Third Amendment) Rules, 1990. Learned counsel also placed before me Karnataka Motor Vehicles (Amendment) Rules, 1991 issued on 5th October 1991 and Karnataka Motor Vehicles (Amendment) Rules, 1991 published in the Gazette dated 11-10-1991 and Karnataka Motor Vehicles (Amendment) Rules, 1992 as well as Amendment Rules of 1993 as published. I could not find from the perusal of various amendments made in Rule 151 that clause (d) had been added to Rule 151 sub-rule (3 ). The first notification which has been placed before me is of November 1991. It means, if clause (d) would have been added, would have been added earlier to November, 1991 if that amendment is made in the year 1990 or 1991. By Karnataka Motor Vehicles (Second Amendment) Rules 1990 in Rule 151 (3), clause (c) has been added as I have mentioned earlier and under this provision, the power has been conferred on the Government to grant exemption to any public service vehicles or to any class of such vehicles which are used in specified area from the provisions of sub-rules (1) and (2) either generally or for specific period. It further provides that exemption shall be granted, may be subject to the conditions that may be provided by the Government. It means that the Government alone can grant exemption and subject to conditions that may be provided by it. This clause (c) further provides a procedure about how the exemption be granted. I mean to put emphasis that this rule is the rule which confers power on the Government to grant exemption and power to grant exemption is conferred only on the State Government and not on any other authority. The second thing to be emphasized here is that exemption is to be granted by issuance of a Notification which has to be published in the official Gazette.


( 6 ) IT is also well settled principle of law that when a power is conferred on a specific authority or specific officer, then no other officer can exercise that power. It means that, that person alone can exercise that power. The second principle is that when the manner as to exercise that power is prescribed. e. by publication of that order of exemption in the official gazette, exemptions cannot be granted in any other manner, but only way is to pass the order of exemption and to publish it in the official Gazette. When I so observe, I find support for my view from the decision of the Supreme Court in the case of State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 : (1963 All LJ 1093 ). It will be appropriate to refer to certain observations of their Lordships in this case. In this decision, Their Lordships made reference to the famous decision of Ch. Division in Taylor v. Taylor (1876) 1 Ch. D. 426. Dealing with S. 164 of the Code of Criminal Procedure, Their Lordships had to deal with that question and in addition to the case of Taylor v. Taylor, Their Lordships also made a reference to another famous case of Nazir Ahmed reported in AIR 1936 PC 253 (2) : (37 Cri LJ 897 ). After having made reference to these decisions, Their Lordships observed vide Paragraph 15 of the judgment as follows :"when a statute confers a power on certain judicial officers, that power can obviously be exercised only by those officers. No other officer can exercise that power, for it has not been given to him. Now the power has been conferred by S. 164 on certain magistrates of higher classes. Obviously it was not intended to confer the power on magistrates of lower classes. "in paragraph 8 of the judgment, their Lordships referred to the principle initiated in the case of Taylor v. Taylor and observed as follows :"the rule adopted in Taylor v. Taylor (1876) 1 Ch. D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. "in the case of Krishan Gopal v. Shri Prakashchandra, (AIR 1974 SC 209. , 1974 (1) SCC 128; 1974 (2) SCR 206), their Lordships of the Supreme Court had been considering the question of interpretation of S. 80-A of the Representation of the People Act. While interpreting that provision, Their Lordship had been pleased to lay down the principle to the same effect Vide paragraph 12 of that judgment, Their Lordships observed as under :"sub-SECTION (2) of S. 80-A of the Act provides that the jurisdiction which the Supreme Court has to try an election petition shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall from time to time assign one or more Judges for the purpose. It is plain that sub-sec. (2) does not confer jurisdiction to try an election petition. Such jurisdiction is conferred by sub-sec. (1) of S. 80-A upon the High Court. Sub-sec. (2) merely specifies the instrumentality through which the jurisdiction shall be exercised. This sub-section, thus relates to the procedure for exercise of the jurisdiction and provides that such jurisdiction shall be exercised ordinarily by a single Judge of the High Court who has been assigned for the purpose by the Chief Justice. Absolutely, sub-sec. (2) of S. 80-A makes it manifest that it is only a Judge of High Court assigned for the purpose by the Chief Justice who can exercise jurisdiction which is vested in the High Court to try an election petition under sub-sec. (1 ). The provisions of sub-sec. (2) are mandatory and a person who is not a Judge of a High Court concerned and who has not been assigned for the purpose by the Chief Justice, cannot exercise the jurisdiction which is vested in the High Court under sub-sec. (1) of S. 80-A of the Act. "


( 7 ) THE principle that emerges from this decision is if the power is conferred, and instrumentality for exercise thereof is specified and the manner for its exercise is specified, the power has got to be exercised by that authority or person alone and it has to be exercised primarily and ordinarily by following the specified procedure or manner and not otherwise open to be exercised. When the power is conferred under R. 151 (3) (d) on the State Government to grant exemption, it needs to be held that power to grant exemption is conferred on the Government and no other authority, neither STA nor STAT nor RTA nor RTO nor any of these authorities except State Govt. have power to grant exemption. They can act under Notification and see which vehicle has been granted exemption. If the vehicle is not mentioned, then provisions of sub-rule (2) will be applicable. No doubt, Clause (d) has been referred, but, there is no clause (d), clause (c) of Rule 151 (3) confers the power on the Government to issue such notification. It is one of the trite principles of law as laid down by Their Lordship in the case of Vice-Chancellor, Jammu University v. Dushinant Kumar Rampal reported in AIR 1977 SC 1146 : (1977 Lab IC 710) that where an authority makes an order which is otherwise within its competence, then such order cannot fail merely because a wrong provision has been referred to therein. The material observation may be quoted as under :"8. It is true that the order of suspension did not recite Statute 24 (ii) as the source of power under which it was made, but it is now well settled, as a result of several decisions of this Court, that when an authority makes an order which is otherwise within its competence, it cannot fail merely because it purports to be made under a wrong provision of law, if it can be shown to be within its powers under any other provision: a wrong label cannot vitiate an order which is otherwise within the power of the authority to make. Vide Hukamchand Mills Ltd. v. State of Madhya Pradesh, AIR 1964 SC 1329 and P. Balakotaiah v. Union of India, 1958 SCR 1052: (AIR 1958 SC 232 ).


( 8 ) NO doubt, this order could be issued under Rule 151 (3) (c ). It appears, clause (d) is a wrong mention for clause (c ). It is expected that when such notification issued, authorities issuing such notification will verify that correct provision is mentioned. In view of the facts mentioned earlier, if authority who issues Notification, may be said to have power or authority covered under some other provision than one mentioned in the order, the order/notification cannot be said to be illegal or incompetent. The authorities should verify the correct mention of the provisions. It is expected that Law Department and other concerned departments should take note of it.


( 9 ) THE Cases that have been cited by the learned counsel for the petitioner, it appears that those have been decided without taking note of Rule 151 (3) (c) under which the Notifications had been issued. It appears, the provisions of S. 151 (3) (c) confers the powers only on the Government to grant exemptions and on no other authority. Therefore, those decisions cannot be taken to be binding precedent.


( 10 ) A decision which is based on non-consideration of the material provisions of law cannot be said to be binding precedent as it suffers from doctrine of substantial and per incuriam

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. See : A. R. Antulay v. R. S. Nayak AIR 1988 SC 1531 : (1988 Cri LJ 1661 ). Vide Paragraph 138, Hon'ble Mr. Justice Venkatachaliah as well observes that "but the point is that the circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. A co-ordinate bench can disagree with it, and decline to follow it. " ( 11 ) IN this view of the matter, in my opinion when the Notifications which have been issued by the Government specified the class of vehicles under Column (2) along with the wheel base, then it is considered that those vehicles which are described in Column No. 2 read with their wheel base, will be deemed to have been exempted from the operation of sub-rule (2) of Rule 151. But, if the vehicle does not specify either the description given in column No. 2 of the notification or description given by its made by the Company or it does not apply with either description., base or the wheel base, then it will not be covered by exemption. A vehicle to be covered by the exemption clause should comply with the conditions. description and wheel base, otherwise, exemption may not be allowed and the respondent R. T. O. did not commit any error of law apparent nor did illegally refuse to exercise the jurisdiction. ( 12 ) IN the present case, the admitted position is that the vehicle involved is not at all covered by the description given in the notifications vide Column 2 referred to. The petitioner has failed to make out any case of jurisdictional error or error of law apparent on the part of RTO. respondent as I have mentioned earlier, the decisions referred to by the learned counsel have been based on non-consideration of the relevant provisions of rule itself. Those decisions cannot be taken as and are not binding precedent by me as they suffer from doctrine of per incuriam. ( 13 ) THE writ petition as such is hereby dismissed as being without any merits. Petition dismissed.
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