ALAGIRISWAMI, J. - (1.) THIS is an appeal against the judgment of the High Court of Mysore striking down Rule 216 (2) of the Mysore Motor Vehicles Rules, 1963, introduced on 7th October, 1969, on the ground that it violates Art. 19 (1) (g) of the Constitution.
(2.) THE respondent, who is a transport operator plying buses between Doddaballapur and Tumkur, wanted to replace one of his buses running on that route with a new one. Under the permit granted to him, which was valid up to 30-10-1975, his bus had a seating capacity of 30. On 2-11-1970 he applied to the Regional Transport Officer. Bangalore Region, for permission to alter the seating capacity of the new bus. which he had acquired, from 40 to 30. This application having been rejected he filed a petition for issue of a writ of mandamus directing the Regional Transport Officer to grant the necessary permission, and that petition having been allowed the State of Mysore has come on appeal to this Court by special leave. The contention of the operator was that the impugned rule which fixed the minimum seating capacity of buses is really intended indirectly to compel the operators to pay more taxes, that he is already operating on a narrow margin of profit and if he is compelled to increase the number of seats in his bus he would incur losses because of the additional tax which he will have to pay and this is an interference with his right to carry on his business. According to the State the impugned Rule was intended to eliminate the evil of stage-carriage operators carrying passengers in excess of the seating capacity specified in the registration certificate and the permit, to the serious inconvenience and discomfort of the travelling public, in addition to causing loss of revenue to the State. There is no dispute that the bus in question can have a seating capacity of 40. The impugned Rule, in so far as it is relevant, reads as follows: "216 (1)... (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 : JUDGEMENT_736_1_1973Html1.htm Provided that the operator may increase the capacity consistent with the other rules relating to seating capacity and with due regard to the type of the chassis on which the body is fitted : (3) Nothing in sub-rule (2) shall apply to,- (i) stage carriages proposed to be operated exclusively in towns 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." It is agreed by both the parties that there are only four manufacturers of bus chassis in the country with wheel bases and number of seats as given below : JUDGEMENT_736_1_1973Html2.htm It will he noticed that the smallest bus available in the market can carry 35 passengers.
(3.) SECTION 70 of the Motor Vehicles Act enables rules to be made regulating the construction, equipment and maintenance of motor vehicles. In addition there is power to make rules regarding the seating arrangements in public service vehicles. Under S.48 (3) of the Act there is provision for fixing the maximum number of passengers that may be carried on any specified vehicle or on any vehicle of a specified type. One of the conditions that may be attached to a permit under clause (xx) of that section is that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority. Under SECTION 60 of the Act a permit may be cancelled or suspended if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit. Under SECTION 123 whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of any conditions of a permit in regard to the maximum number of passengers that may be carried on the vehicle is also liable to punishment with a fine which may extend to one thousand rupees for the first offence and imprisonment that may extend to six months or with fine which may extend to two thousand rupees, or with both for subsequent offences. Under Rule 137 of the Mysore Motor Vehicles Rules any of the conditions of the permit (which naturally includes the condition regarding the maximum number of passengers that might be carried) can be varied only after following the preseribed procedure. In view of these circumstances it- is contended on behalf of the respondents that it is not possible for the transport operator to overload his buses in contravention of the conditions of his permit and that that cannot be a reason for fixing a minimum number of seats in a bus. It is also argued that while there is a specific section which enables the maximum number of passengers that can be carried on a bus to be prescribed, there is no such power to prescribe the minimum number of passengers that can be carried in a bus. It must be made clear that all that is insisted upon under the impugned Rule is the minimum number of seats to be provided in the bus. It has been urged on behalf of the State that the intention behind providing buses with bigger bodies with lesser number of seats than they can be provided with is really intended to carry a larger number of passengers and pay a lesser tax. Though it is true that the State has the necessary machinery to check such contravention it cannot always succeed in doing so. However, we do not consider that the mere possibility of such overloading can justify the making of the impugned rule. It has been urged on behalf of the State that the demand for transport has been rising by leaps and bounds every year, whereas on behalf of the respondent It has been contended that the average number of passengers carried in his bus on this route is about 25. The great demand for transport and the rush for seats in buses is too well known to need emphasis. It appears to us that when a certain chassis is capable of having a body constructed on it so that it can carry a certain number of passengers, to construct on that body a lesser number of seats is a waste of valuable transportation facility. Even on this route there are 14 buses plying between the two points in addition to longer distance buses, of which the stage between Doddaballapur and Tumkur forms a section. So it cannot be said that the demand here is as little as is urged on behalf of the respondent. There is no reason to disbelieve the averment made on behalf of the State on this point.;