RAJASTHAN HIGH COURT

            Arawali Taxi Operators Union

            Vs.

            State of Rajasthan

            Civil Special Appeal (Writ) No. 728 of 2001
                 (N.N. Mathur and O.P. Bishnoi, JJ.)

            15.09.2003

            JUDGEMENT

Mathur, J.

1. The appellant, a Taxi Operators Union challenged one of the conditions attached to
the contract carriage permit prohibiting to fit luggage carrier on the roof of the jeep
being arbitrary and unreasonable. Learned single Judge dismissed the petition
relegating the petitioner to alternate remedy under Section 89 of the Motor Vehicles
Act.

2. It is well established that High Court has power to issue in a fit case an order
prohibiting an Executive Authority from acting without jurisdiction more particularly,
in case where such an action is likely to subject a person to lengthy proceedings and
unnecessary harassment. It is not necessary to tress all the judgments on the point,
suffice to refer the decision of Apex Court in Whirlpool Corporation v. Registrar of
Trade Mark, reported in 1 wherein the Court reviewed almost all the cases on the point
and reiterated three well established exceptions wherein writ jurisdiction does not
operate as bar, inspite of existence of statutory remedy. The Court held, thus (Para 15
of AIR):-

"Under Article 226 of the Constitution, the High Court, having regard to the
facts of the case, has a discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself certain restrictions one of which is
that if an effective and efficacious remedy is available, the High Court would
not normally exercise its jurisdiction. But the alternative remedy has been
consistently held by the Court not to operate as a bar in at least three
contingencies, namely, where the writ petition has been filed for the
       enforcement of any of the fundamental rights or where there has been a
       violation of the principle of natural justice or where the order or proceedings are
       wholly without jurisdiction or the vires of an Act is challenged."

3. It is contended by the learned counsel that impugned condition No. 4 of the permit
restraining the contract carriage permit holders from installing or attaching a luggage
carrier on a taxi jeep is illegal being arbitrary, without authority of law, unreasonable
and, thus, violative of Article 14 of the Constitution of India. It is also submitted that
such a condition is foreign to the conditions contained in Section 74. Thus, the
Transport Authority has acted completely without jurisdiction in attaching such
arbitrary condition.

4. On the other hand, it is submitted by the learned counsel for the department that the
roof of the jeep is not a hard top of metal but it is covered by the canvas cloth or raxin.
It is further submitted that the condition of not allowing a fixed luggage carrier on a
taxi jeep has been imposed in view of increase in number of cases of overloading. It is
reported that luggage carrier is being used for taking the passengers on the roof of the
jeep. It is submitted that specification of jeep is not meant to fix luggage carrier. It is
further submitted that fixing of luggage carrier on the jeep is not only unauthorized but
also dangerous and against the norms of safety. Thus, according to the respondents,
the condition attached with the taxi jeeps of not permitting to fix luggage carrier is not
only in the interest of public safety but also in accordance with the provisions of
Section 74(2)(ix)(b) and 74(2)(xiii). It will be convenient to refer Section 74 of the
Motor Vehicles Act which reads as follows:-

       "74. Grant of contract carriage permit.- (1) Subject to the provisions of sub-
       section (3), a Regional Transport Authority may, on an application made to it
       under Section 73, grant a contract carriage permit in accordance with the
       application or with such modifications as it deems fit or refuse to grant such a
       permit:

       Provided that no such permit shall be granted in respect of any area not
       specified in the application.

       (2) The Regional Transport Authority, if it decides to grant a contract carriage
       permit, may, subject to any rules that may be made under this Act, attach to the
       permit any one or more of the following conditions, namely:-

       (i) that the vehicles shall be used only in a specified area or on a specified route
or routes;

(ii) that except in accordance with specified conditions, no contract or hiring,
other than an extension or modification of a subsisting contract, may be entered
into outside the specified area;

(iii) the maximum number of passengers and the maximum weight of luggage
that may be carried on the vehicle, either generally or on specified occasions or
at specified times and seasons;

(iv) the conditions subject to which goods may be carried in any contract
carriage in addition to, or to the exclusion of, passengers;

(v) that, in the case of motorcabs, specified fares or rates of fares shall be
charged and a copy of the fare table shall be exhibited on the vehicle;

(vi) that, in the case of vehicles other than motorcabs, specified rates of hiring
not exceeding specified maximum shall be charged;

(viii) that, in the case of motorcabs, a specified weight of passengers' luggage
shall be carried free of charge, and that the charge, if any, for any luggage in
excess thereof shall be at a specified rate;

(viii) that, in the case of motorcabs, a taximeter shall be fitted and maintained in
proper working order, if prescribed;

(ix) that the Regional Transport Authority may, after giving notice of not less
than one month,-

(a) vary the conditions of the permit;

(b) attach to the permit further conditions;

(x) that the conditions of permit shall not be departed from save with the
approval of the Regional Transport Authority;

(xi) that specified standards of comfort and cleanliness shall be maintained in
the vehicles;

(xii) that, except in the circumstances of exceptional nature, the plying of the
vehicle or carrying of the passengers shall not be refused.

(xiii) any other conditions which may be prescribed.
       3(a) The State Government shall, if so directed by the Central Government,
       having regard to the number of vehicles, road conditions and other relevant
       matters, by notification in the Official Gazette, direct a State Transport
       Authority and a Regional Transport Authority to limit the number of contract
       carriage generally or of any specified type as may be fixed and specified in the
       notification, operating on city routes in towns with a population of not less than
       five lakhs.

       (b) Where the number of contract carriages are fixed under clause (a), the
       Regional Transport Authority shall, in considering an application for the grant
       of permit in respect of any such contract carriage, have regard to the following
       matters, namely:-

       (i) financial stability of the applicant;

       (ii) satisfactory performance as a contract carriage operator including payment
       of tax if the applicant is or has been an operator of contract carriages; and

       (iii) such other matters as may be prescribed by the State Government:

       Provided that, other conditions being equal, preference shall be given to
       applications for permits from:-

       (i) the Indian Tourism Development Corporation;

       (ii) State Tourism Development Corporations;

       (iii) State Tourism Departments;

       (iv) State Transport Undertakings;

       (v) co-operative societies registered or deemed to have been registered under
       any enactment for the time being in force;

       (vi) ex-servicemen."

5. General conditions attached to all permits are under Section 84 of the Act which
reads as follows:-

       "84. General conditions attaching to all permits.- The following shall be
       conditions of every permit:-

       (a) that the vehicle to which the permit relates carries valid certificate of fitness
       issued under Section 56 and is at all times so maintained as to comply with the
       requirements of this Act and the rules made there under;

       (b) that the vehicle to which the permit relates is not driven at a speed
       exceeding the speed permitted under this Act;

       (c) that any prohibition or restriction imposed any fares or freight fixed by
       notification made under Section 67 are observed in connection with the vehicle
       to which the permit relates;

       (d) that the vehicle to which the permit relates is not driven in contravention of
       the provisions of Section 5 or Section 113;

       (e) that the provisions of this Act limiting the hours of work of drivers are
       observed in connection with any vehicle or vehicles to which the permit relates;

       (f) that the provisions of Chapters X, XI and XII so far as they apply to the
       holder of the permit are observed; and

       (g) that the name and address of the operator shall be painted or otherwise
       firming affixed to every vehicle to which the permit relates on the exterior of the
       body of that vehicle on both sides thereof in a colour or colours vividly
       contrasting to the colour of the vehicle centered as high as practicable below the
       window line in bold letters.

6. We have carefully read Sections 74 and 84 of the Act but we do not find any
provision which permits imposition of impugned condition. It appears that the
Transport Authority has invoked clause (xiii) i.e., the residuary clause. The only
reason given for imposing the condition is reported cases of its misuse. In our view,
simply chances of misuse, cannot be a ground to impose a condition not provided
under the statute. There may be occasions when jeeps are to carry luggage, in such
circumstances, the luggage carrier becomes a necessity. It is for the department to
ensure that luggage carrier is not misused. The grievance of the appellant-petitioner
Union that common passengers abstain from hiring jeep taxies as it cannot carry their
luggage and this has adversely affected their business. In our view, the imposition of
impugned condition No. 4 is arbitrary, unreasonable and without authority of law. The
Transport Authorities are required to be more vigilant and not to allow the misuse of
luggage carrier. Stringent conditions may be put that even a single instance of carrying
passenger on the luggage carrier, would be sufficient to cancel the permit. However,
there cannot be a complete ban on fixing a luggage carrier on the top of the taxi jeeps.
7. Consequently, the special appeal is allowed. The judgment of the learned single
Judge dated 26-7-2001 is set aside. The writ petition is allowed. It will be open for the
individual taxi permit holder to apply to the Transport Authority for deletion of
condition No. 4. It will also be open for the Transport Authority to obtain an
appropriate undertaking from the individual taxi permit holder that if they misuse the
luggage carrier fixed on the jeep, their permit will be liable to be cancelled. No order
as to costs.

Appeal allowed.

Cases Referred.

1. (1998) 7 JT (SC) 243: (AIR 1999 SC 22)