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Judgment
Kanakaraj, J.—All these writ petitions relate to stage carriage operators getting spare bus permits under the Motor Vehicles Act, 1939 (hereinafter called "1939 Act") and seeking to renew the permit for the spare buses after the coming into force of the Motor Vehicle Act, 1988 (hereinafter called "1988 Act").
In all the cases the application for renewal was rejected by invoking the Tamil Nadu Motor Vehicles Rules namely, Rule 176(7). The appeal against such orders were also rejected by the Tribunal. The contention of the Petitioner is that the application for renewal of the spare bus permit should have been considered under the provisions of the old Act and the Rules framed thereunder and in the alternative they argued that Rule 176(7) is ultra virus the provisions of the New Act.
For the sake of clarity I will set out the brief facts in each case. In W.P. No. 17911 of 1991 the Petitioner was having two route bus permits and three spare buses. Permit for one of the spare buses namely, TAU 5779 expired on 1.11.1991. The application for renewal was rejected on 17.9.1991 and the Appeal No. 257 of 1991 was dismissed on 25.11.1991. The Petitioner in W.P. No. 4314 of 1992 had three route buses and two spare buses. One of the spare buses namely, TDV 5886 expired on 3.8.1989. The application for renewal was rejected on 24.10.1991. Appeal No. 318 of 1991 was also dismissed on 20.2.1992. While the Petitioner is seeking to quash the order dated 20.2.1992 in W.P. No. 4315 of 1992, he is seeking for a declaratior that Rule 176(7) of the Tamil Nadu Motor Vehicles Rules, 1989 (hereinafter called "the Rules") is ultra vires, null and void. The Petitioner in W.P. No. 921 of 1992 had two spare buses and the permit for the spare bus TCD 4267 expired on 1.9.1990. The application for renewal was rejected on 20.12.1990. Appeal No. 105 of 1991 was rejected. This Petitioner is also seeking a declaration that Rule 176(7) is ultra vires.
A counter affidavit has been filed in W.P. No. 4314 of 1992. It is stated that the State Government is within its powers in framing Rule 176(7), restricting the number of permits to be held by an operator as spare bus, based on the number of route permits. They also state that the orders of rejection based on Rule 176(7) is perfectly legal and valid. Mr. V.T. Gopalan, learned Senior Counsel for the Petitioner in W.P. No. 17911 of 1991 has addressed arguments on behalf of the Petitioners. The first argument of the Learned Counsel is that the Tribunal had on earlier occasions upheld the contention of the permit holders relying on Sub-section (4) of Section 217 of the 1988 Act. Their present change of view is said to be based on the judgment of the Division Bench of this Court in Writ Appeal No. 1180 of 1987 dated 25.10.1990 and the judgment of K.S. Bakthavat-salam, J. in W.P. Nos. 9909 to 9911 of 1991 dated 19.7.1991. According to Mr. V.T. Gopalan these judgments relate to the grant of permits whereas we are concerned in those writ petitions with application for renewal of a spare bus permit. Reference is made to Section 217(2)(b) and 217(4) of the Act 1988 and they are as follows:
Repeal and savings: (1) The Motor Vehicles Act, 1939 (4 of 1939) and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this section referred to as the repealed enactments) are hereby repealed.
(2) Notwithstanding the repeal by Sub-section (1) of the repealed enactments.-
(a) ...
(b) any certificate of fitness or registration or licence or permit issued or granted under the repealed enactments shall continue to have effect after such commencement under the same conditions and for the same period as if this Act had not been passed;
(3)....
(4) The mention of particular matters in this Section shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
In pursuance of Sub-section (4) of Section 217 of 1988 Act) Learned Counsel for the Petitioner relies on Section 6(c) of the General Clauses Act. It is as follows:
Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not:
(a) ...
(b) ...
(c) affect any right, privilege, obligation or liability acquired, occrued or incurred under any enactment so repealed;
The argument therefore, is that the right to have a permit renewed, and unless a different intention appears is right or privilege accrued under the 1939 Act, and cannot be destroyed by the 1988 Act. Learned Counsel says that a permit is now accepted to be a species of property which is alienable, heritable and transferable. Therefore, it is argued that such a right is a saved by Section 217(4) of the 1988 Act read with Section 6(c) of the General Clauses Act. But it cannot be forgotten that the interpretation sought to be placed on Section 217(4) of the Act is subject to an important exception namely that the 1988 Act does not lay down a different intention. Mr. V.T. Gopalan, then refers to a number of decisions to suggest that the new Act cannot be interpreted to mean that the earner rights accrued to a person should be destroyed altogether.
The second point argued by Mr. V.T. Gopalan and emphasised by Dr. V. Subramaniam for Petitioners in W.P. No. 921 of 1992 and by Mr. S.C. Palanisamy, Learned Counsel appearing for W.P. Nos. 4314 and 4315 of 1992 is as follows:
When the 1988 Act has made the grant of permits easier without much restriction, the Tamil Nadu Government has no right to frame a Rule like Rule 176(7), which is clearly contrary to the objects of the 1988 Act and in any event beyond the Rule making power. It would be more convenient to deal with the second point first, because the finding on that point may have a bearing on the validity of the first point urged by the counsel.
To appreciate the second point one has necessarily to quote Tamil Nadu Rule 176(7). It is as follows:
176(7) It shall be a condition of permit of every stage carriage that the number of vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions shall be as follows:
Number of route buses held by the operator Number reserve singe carriage
Minimum Maximum
(1) (2) (3)
1 to 5 Nil One
State Transport Undertaking Maximum Ten percent of fleet of Buses.
In this connection reference is made to Section 71(3)(a) of the 1988 Act. The argument is that there is no restriction on the regional transport authority in granting stage carriage permit and the only power to limit the number of stage carriages is contained in Section 71(3)(a). In asmuchas there is no Notification as prescribed in the said Sub-section there can be no limit for the number of stage carriages that can be permitted or the number of reserve stage carriage that can be permitted. On the other hand, Learned Counsel for the Respondents relies on Section 71(4) of the Act which thus restrict the number of stage carriage permits. So far as the grant of permits to reserve stage carriages or spare buses, one can refer to the following provisions in the 1988 Act which only indicates that there can be reserve stage carriages, but there is no indication as to the number of such reserve or spare buses. For instance, Section 70(d) says that an application for permit should contain among others the following requirements:
The number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions;
Section 72(2) enables the Regional Transport Authority, to attach to the permit any one of the conditions mantioned therein Condition No. (xvii) which can be incorporated in the permit is as follows:
(xvii) the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions;
It is significant to notice here that the power of the Regional Transport Authority to attach the condition above mentioned or any other condition is "subject to any Rules that may be under the Act." Section 84(4) provides for the renewal of permits and the conditions under which a renewal can be rejected. The scheme of the Act suggests that while the provisions of the Act do provide for the grant of permits to stage carriages to be kept as reserve by a holder of a permit to maintain the operation and to provide for special occasions, the Act no where speaks of the number of such reserve or spare buses that could be permitted. This was the precise position even under the Motor Vehicle Act, 1939. For instance, one may see with advantage Sections 46(d), 47(3) (xvi) which are identical to Section 70(d) and 72(2) (xvii). On the above provisions of the 1939 Act, the Tamil Nadu Motor Vehicles Rules 1940 did not prescribe any upper limit for the grant of permits to reserve buses. That is precisely the reason why even among the Petitioners, we find persons with two route permits having three spare buses and so on and so forth. In fact, it is pointed out in W.P. No. 19711 of 1991 that such spare buses were being used as contract carriages on special permits and that there are nearly 1,000 such vehicles operated by private operators in the State of Tamil Nadu. While so, under the very same scheme of provisions relating to the reserve stage carriages, the Tamil Nadu Motor Vehicles Rule 1989 has thought it fit to introduce Rule 176(7) quoted above which places stringent restrictions on the number of reserve stage carriages. The question is whether the Rule is valid and ultra virus the Rule making power. As in the 1939 Act, even in the 1988 Act each Chapter contains a. Section enabling the State Government to make rules. Therefore, such rule making power is available in Sections 20-A 30-A, 65, 95, 96, 107, 111 and 138. Necessarily we have to refer only to Sections 95 and 96 to find out the power of the Government to make rule in respect of reserve stage carriages which is contained in Chapter V of the Act. It is not disputed that there is no specific rule enabling the State Government to limit or fix the number of reserve stage carriages. Again it must be remembered that this was the position even under the 1939 Act. But Courts have been giving a wider power to the Government to make Rules taking umbrage under the general power to make Rules for the purpose of carrying into effect the provisions of a particular Chapter and the Clause that the enumeration contained in Sections 95 and 96 are without prejudice to the generality of the Power contained in Sub-section (1). Therefore, it is with reference to this power to make rules to carry into effect the provisions of the Act or a particular Chapter that I have already referred to Section 72(2) which says that conditions may be attached with reference to reserve stage carriages" subject to any rules that may be under this Act. Therefore, I am clear in my mind that Rule 176(7) can be traced to the power of the Government under Sub-section (1) of Section 95 and Sub-section (1) of Section 96 read with Section 72(2) of the Act.
Learned Special Government Pleader has also taken me through certain decisions which may be briefly referred to. In T.B. Ibrahim Vs. Regional Transport Authority, Tanjore, dealing with identical provisions of 1939 Act, the Supreme Court observed as follows:
It is obvious from a plain reading of Sub-section (1) that the Government has got full power to make rules, for the purpose of carrying into effect the provisions contained in Chapter IV relating to the control of transport vehicles and according to Sub-section (2) without prejudice to this power, the Government has the power to fram rules with respect to matters set out in 2(a) to (za). It is significant to note that the Act does not follows the ordinary mode of providing at the end of the Act that the Government is empowered to make rules for the purpose of carrying into effect the provisions of the Act but at the end of each of the Chapters, including Chapter IV, the power has been reserved to the provincial Government to make rules for the purpose of carrying into effect the provisions of the Chapter. The purpose of Chapter IV is described by the compendious expression ''control of transport vehicles'' and the provincial Government is invested with plenary powers to make rules for carrying out that purpose. Keeping in view the purpose underlying the Chapter; we are not prepared to hold that the fixing or alteration of bus-stands is foreign to that purpose.
Similarly in Padmanabhan v. The State (A.I.R. 1956 Mad 349) this Court as held that the provision in Rule 160(B) of the 1940 Rules are traceable to Section 68(1) of the 1939 Act. The Court held that the further provision in Rule 160(B) authorising the Regional Transport Authority to fix the rate at which mails could be carried was within the ambit of the power conferred by Section 68(1) of the 1939 Act. In Om Prakash and Others Vs. Union of India (UOI) and Others, the Apex Court has held as follows:
It is a well-established proposition of law that where a specific power is conferred without prejudice to the generality of the general powers already specified, the particular power is only illustrative and does not in any way restrict the general power.
The view of the Madras High Court in M.K. Padmanabhan Vs. The State of Madras and Another, has found approbation in the judgment of the Supreme Court in Khatki Ahmed Mushabhai Vs. Limdi Municipality, . Similarly a rule relating to the wearing helmets in the Andhra Pradesh Motor Vehicles Rules has been upheld by the Apex Court has been within the rule making power. On the other hand Learned Counsel for the Petitioners referred to AIR 1972 1935 (SC) That was a case relating to prescription of limitation by a rule when the provisions of the Employees State Insurance Act, 1948 did not contain such a power. The Apex Court has held that rule prescribing limitation cannot be claimed by the rule making authority because the law relating to the limitation goes to the root of the matter and a legislature does not part with the power to prescribe limitation which it jealously retains to itself unless it intends to do so in clear and unambiguous terms. I am of the opinion that the ratio of the Apex Court in AIR 1972 1935 (SC) cannot be applied to the facts of the present case. The large majority of judgments cited by the Respondents on the very interpretation of the Motor Vehicles Act and Rules, in my view, goes a long way to sustain the validity of Rule 176(7). I therefore, hold that the Rule is within the rule making power as contained in Sections 95 and 96 of the 1988 Act. In my opinion the rule also is well within the declared objects of the Act because no operator is expected to own more spare buses than what is actually required to manitain the continuity of service in the event of the break-down of a route bus. The second point raised by the Petitioner is therefore, rejected.
I will now take up the primary argument of Mr. V.T. Gopalan learned Senior Counsel for the Petitioner in W.P. No. 17911 of 1991. The argument is maiuniy based on Section 217(4) of 1988 Act read with Section 6(c) of the General Clauses Act. I have already extracted the said provisions in the earlier part of my order. The only question is whether the right of renewal in respect of a spare bus is a right or privilege accrued under the 1939 Act, and whether no different intention appears under the provisions of the re-enacting law. Reliance is placed on State of Punjab v. Mohar Singh (A.I.R. 1955 S.C. 84). The following passage is relevant:
Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them.
In Bansidhar and Others Vs. State of Rajasthan and Others, the same proposition is laid down in the following words:
When there is a repeal of a statute accompanied by re-enactment of a law on the same subject, the provisions of the new enactment would have to be looked into not for the purpose of ascertaining whether the consequences envisaged by Section 6 of the General Clauses Act ensued or not - Section 6 would indeed be attracted unless the new legislation manifests a contrary intention but only for the purpose of determining whether the provisions in the new statute indicate a different intention.
Again the Supreme Court observes. "For purposes of these clauses the "right" must be "accured" and not merely on inchoate one. The distinction between what is and what is not a right preserved by Section 6 of the General Clauses Act, it is said, is often one of great fineness. What is uneffected by the repeal is a right ''acquired'' or ''accrued'' under the repealed statute and not "a mere hope or expectation" of acquiring a right or liberty to apply for a right.
More recently dealing with the very provisions of the Motor Vehicles Act, the Apex Court in M/s. Gurcharan Singh Baldev Singh Vs. Yashwant Singh and others, observed as follows:
Does the new Act indicate any intention to the contrary? No express provision deberring renewal of permits, applied for, under old Act could be pointed out, reliance was placed on absence of preferential provision u/s 81 of the Act which provides for renewal of permits. It was urged that there was a definite departure from the old Act therefore any right under the old Act could not be continued to under the new Act. The submission does not appear to be sound. The new Act is a legislation on the same subject. Section 81 specifically provides for renewal. It cuts across the argument of intention to the contrary. Rather it is kept alive by Sub-section (4) of Section 217. The scheme of renewal having been continued even under the new Act mere absence of preference clause in Section 81 of the new Act could not be construed as destroying the claim for renewal set in motion under the old Act.
Therefore, the fact that the Petitioners have a right to apply for a renewal for the spare buses which were granted permits under the rules framed under the 1939 Act cannot be disputed. The question is whether such a renewal application can be considered ignoring the rules framed under the 1988 Act. I have already held that Rule 176(7) of the Tamil Nadu Rules, 1989, is a validly enacted rule. Therefore, while considering the grant of a renewal there can be no doubt, that the provisions of Rule 176(7) has to be applied. Even in respect of the grant of renewal there is a slight change in the Act itself, if one looks into Section 81(4) of the 1988 Act relating to renewal of permits and Section 58 of the 1939 Act relating to renewals. Under the 1988 Act certain new grounds for rejection of renewal application are incorporated in Sub-Section 4 of Section 81. Those considerations were absent in 1939 Act. Similarly, regarding spare buses while there were no restrictions regarding the number of spare buses, Rule 176(7) of the 1989 Rules places a restriction on the number of spare buses which a permit holder can maintain. I have no doubt in my mind that while considering a renewal application the provisions of the 1988 Act as contained in Section 81(4) and in respect of spare buses, the restrictions referred to in Tamil Nadu Rules 176(7) have to be kept in mind and applied. To hold other-wise would be to shut one''s eye to the provisions of the new enactment. Reliance is placed by the counsel for the Petitioner in Sri Ram Vilas Service Ltd., Kumbakonam Vs. Raman and Raman Private Ltd. and Another, does not at all improve the case of the Petitioners.
Therefore, looked from any angle the Orders of the lower authorities holding that in respect of the subject renewal applications, the restrictions contained in Tamil Nadu Rule 176(7) will apply, has to be upheld. Consequently, all the writ petitions are dismissed. However, there will be no order as to costs.