Viswa Hindu Parishad Kerala v. State of Kerala

1 W.P.(C)No.38685 of 2022 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 13[TH] DAY OF APRIL 2023/23RD CHAITHRA, 1945 ``` ``` WP(C) NO.38685OF 2022 ``` ## **`PETITIONER/S:`** ``` VISWA HINDU PARISHAD KERALA KENDRA KARYALAYA, PAVAKKULAM TEMPLE COMPLEX, KALOOR, KOCHI- 682017, REP. BY GENERAL SECRETARY, V.R. RAJASHEKHARAN NAIR, S/O RAMAN NAIR, AGED 61, RESIDING AT SREENIKETHAN, BHADRESWARAN ROAD, EDANADU, CHEGANNOOR, ALAPPUZHA. ``` ``` BY ADVS. C.S.MANILAL S.NIDHEESH ``` ## **`RESPONDENT/S:`** - **`1 THE STATE OF KERALA REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001.`** - **`2 THE SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.`** ``` 3THE TRANSPORT COMMISSIONER, OFFICE OF THE TRANSPORT COMMISSIONER, TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM- 695014. ``` - **`4 THE DISTRICT COLLECTOR, CIVIL STATION, PATHANAMTHITTA (CHAIRMAN, REGIONAL TRANSPORT AUTHORITY, PATHANAMTHITTA) 689645.`** 2 W.P.(C)No.38685 of 2022 ``` 5THE TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEADQUARTERS, NANTHENCODE, THIRUVANANTHAPURAM-695033, REP. BY THE SECRETARY. ``` - **`6 THE KERALA STATE ROAD TRANSPORT CORPORATION, REP. BY THE MANAGING DIRECTOR, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM- 695023.`** ``` BY ADVS. ``` ``` Deepu Thankan, STANDING COUNSEL, KSRTC UMMUL FIDA(K/954/2013) LAKSHMI SREEDHAR(K/946/2016) LEKSHMI P. NAIR(K/001011/2017) NAMITHA K.M.(K/001556/2021) ``` ``` OTHER PRESENT: ``` ``` SRI S.RAJMOHAN- SR GOVERNMENT PLEADER; ``` ``` SRI.P.SANTHOSH KUMAR, SPECIAL GOVT. PLEADER ``` ``` SRI G.BIJU- STANDING COUNSEL- TRAVANCORE DEVAS- WOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.38685 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, namely, Viswa Hindu Parishad, Kerala, which is a society registered under the Societies Registration Act, 1860, with registration No.135/1978, has filed this writ petition under 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 4 to permit the petitioner to manage and operate transportation of pilgrims from Nilakkal to Pamba and vice versa, free of cost, in contract carriages having valid permits, as requested in Ext.P3 representation dated 22.11.2022 submitted before the 4[th] respondent District Collector, Pathanamthitta, who is also the Chairperson of the Regional Transport Authority, Pathanamthitta. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent State of Kerala represented by Chief Secretary to consider Ext.P3 representation dated 22.11.2022 submitted before the 4[th] respondent District Collector, Pathanamthitta to manage and operate transportation of pilgrims from Nilakkal to Pamba and vice versa, free of cost, in contract carriages having valid permits (with seating capacity below 26 seats) and pass orders immediately, within a time limit to be fixed by this Court; a writ of mandamus commanding the 4[th] respondent District Collector, who is the Chairperson of the Regional Transport Authority, Pathanamthitta to see that requisite special permits under Section 88(8) of the Motor 4 W.P.(C)No.38685 of 2022 Vehicles Act, 1988, is issued to the vehicles offered by the petitioner for free transportation of pilgrims between Nilakkal and Pamba; a declaration that the scheme notified vide Ext.P4, i.e., G.O.(Ms.)No.144/67/PW dated 20.07.1967 and the Scheme notified vide Ext.P5 notification, i.e., G.O.(P).No.54/91/PW&T dated 12.07.1991 will not restrict the operation of contract carriages between Nilakkal and Pamba. 1.1. In the writ petition, it is stated that a pilgrim coming to Sabarimala has to cross Nilakkal and Pamba in order to reach Sannidhanam. Till the year 2018, a pilgrim can take his vehicle up to Pamba. However, on account of the flood situation of the years 2018 and 2019 and also on account of Covid-19 pandemic situation, the pilgrims are permitted to travel in their vehicles only up to Nilakkal. Thereafter, the only option is Kerala State Road Transport Corporation (KSRTC) chain service to reach Pamba. During the festival season of the year 2019, this Court intervened in the matter vide Ext.P1 judgment dated 19.11.2019 in W.P.(C)No.30842 of 2019, and granted relaxation for vehicles up to 15 seats to proceed from Nilakkal to Pamba, without halting or parking vehicle there. The Travancore Devaswom Board filed R.P.No.686 of 2022, seeking a review of Ext.P1 judgment, which is pending consideration before this Court. The pilgrims in lakhs visiting Sabarimala every year, mainly consist of small kids aged below 10 years, differently-abled 5 W.P.(C)No.38685 of 2022 persons, senior citizens and also persons suffering from various ailments. It is a hectic job for them to catch KSRTC buses that are too crowded with pilgrims and after getting the bus to travel up to Pamba, causes serious hardship, both physical and mental strain. To add fuel to the vehicle, KSRTC is levying huge amounts from the pilgrims, for the transportation of pilgrims without even extending the requisite comfort and convenience to the pilgrims. 1.2. In the writ petition, it is alleged that the fare levied by KSRTC by providing JnNURM buses both A/C and non-A/C for Nilakkal-Pamba Chain service cannot be afforded by poor pilgrims. KSRTC is levying an extra fare of 25% as ghat roads and 30% extra fare towards festival charges. Moreover, the chain service of KSRTC is not up to the mark and the devotees had to travel by standing to such a long distance. Further, the buses will not be started from the destination without the same being full of standing passengers. The document marked as Ext.P2 is a relevant extract of the calculation statement submitted by KSRTC in DBP No.74 of 2022 pending before this Court. Having regard to the plight of the pilgrims at Sabarimala, the petitioner decided to offer the conduct of 20 contract carriage services, free of any cost to the pilgrims. The Government of Punjab had extended free fare to the Sikh pilgrimage centre, namely, Kartharpur, which is a shrine of the Sikh religion situated in Pakistan and free fare has been provided by the State Government up to the 6 W.P.(C)No.38685 of 2022 border. Likewise, the Government of Delhi is conducting free transportation of pilgrims from Delhi to Madura, Vrindavan, Agra, Fathepur Sikri, Haridwar, Rishikesh, Ajmeer and Vaishnavi Devi Temple in Jammu. The State of Goa is also extending free transportation of pilgrims to various religious places within the State. 1.3. The petitioner, having regard to the plight of Sabarimala pilgrims, has proposed free service by taking 20 contract carriages on lease for free transportation of the pilgrims. For that purpose, the petitioner moved Ext.P3 representation dated 22.11.2022 before the 4[th] respondent District Collector, seeking an appropriate decision on their request to provide free transportation of pilgrims from Nilakkal to Pamba and vice versa. A copy of Ext.P3 representation was marked to the Chief Secretary of the 1[st] respondent State, the president of the 5[th] respondent Travancore Devaswom Board, the Special Commissioner, Sabarimala and the 3[rd] respondent Transport Commissioner, Kerala. 1.4. In paragraphs 7 to 9 of the writ petition, the petitioner has pointed out the provisions under Sections 2(7), 2(35), 2(47), 73, 74 and 88(8) of the Motor Vehicles Act, 1988. In the writ petition, the petitioner pointed out that the vehicles proposed to be offered by it, are covered by contract carriage permits to operate all over Kerala, as per the provisions under Section 73(b) of the Motor Vehicles Act. All those vehicles are having valid permits and are fit 7 W.P.(C)No.38685 of 2022 to operate as and when required. There is no legal prohibition for the operation of the proposed vehicles, as the same is proposed to be operated between Nilakkal and Pamba, without picking up or setting down any passengers in between the two points. Moreover, the relaxation granted by this Court and the conditions mentioned therein can be scrupulously followed as there is no parking at Pamba. Going by the definition of contract carriage in Section 2(7) of the Act, which states that the contract can be implied. There is no legal hurdle for such operations. The entire cost of the operations will be met by the petitioner and no fee or charges will be levied at all from the pilgrims. Going by the definition of contract carriage in Section 2(7), the prohibition is only regarding picking up and setting down of passengers in between the two points. The proposal of operation is in such a way that there will not be any picking up or setting down of passengers in between Pamba and Nilakkal. That apart, the Regional Transport Authority, Pathanamthitta, of which the 4[th] respondent District Collector is the Chairperson, can also consider the grant or requirement of a special permit under Section 88(8) of the Motor Vehicles Act, 1988, which covers granting of special permits to contract carriages as well. 1.5. In paragraph 10 of the writ petition, the petitioner has stated that the free service proposed by the petitioner will not in any way affect the 6[th] respondent KSRTC. In respect of Pamba, the 8 W.P.(C)No.38685 of 2022 KSRTC has formulated two route schemes. The first one, which is known as the Kollam-Pamba route scheme, was notified vide Ext.P4 notification, i.e., G.O.(Ms.)No.144/67/PW dated 20.07.1967. A perusal of the said scheme would show that only one round trip of one bus is provided, vide Serial Nos.5 and 6 read with Annexure A to that scheme. The second scheme is covered by Ext.P5 notification, i.e., G.O.(P)No.54/91/PW&T dated 12.07.1991, which is known as the Plappally-Pamba route scheme. The petitioner would contend that the above two schemes are not applicable as far as the proposal made by the petitioner is concerned, due to the following reasons; - A. The scheme in question is a route scheme as can be seen from the scheme itself. - B. The scheme in question is only a scheme relating to stage carriage service as can be seen from Ext.P4 clause 4 and clause 3 and Annexure A of Ext.P5. - C. The operation of contract carriage service had not been prohibited, restricted or curtailed by Exts.P4 and P5. - D. There is a total non-application of Chapter 6 to the contract carriage service now proposed by the petitioner, in view of Sections 97 and 99 of the Motor Vehicle Act. In that view of the matter, there is absolutely no legal prohibition for the proposal to operate contract carriages between Nilakkal and Pamba. - E. Even otherwise the scheme even remotely contemplates the exclusion of services other than 9 W.P.(C)No.38685 of 2022 stage carriage services inasmuch as if such an interpretation is given, no other vehicle including contract carriages can be plied from Pathanamthitta to Nilakkal or from Nilakkal to Pamba. The salutary provisions under Section 101 of the Act also may not apply because the proposed contract carriage operation is for public interest, free of cost, and therefore KSRTC cannot have any objection to the said proposal at all.” 1.6. In the writ petition, it is contended that there is absolutely no legal prohibition for the operation of the contract carriages between Nilakkal and Pamba, as offered by the petitioner, in the larger public interest, and also having regard to the object and purpose of the Motor Vehicles Act, i.e., namely, efficient, adequate, economical and properly coordinated road transport. The economical component to have the travel at a facet of the travelling public and the Government is duty bound to facilitate such a proposal, particularly when access to road and transport has been declared to be a fundamental right guaranteed under Article 19(1)(d) and 21 of the Constitution of India, as held by the Apex Court in **State of Himachal Pradesh v. Umed Ram Sharma [(1986) 2 SCC 68]** . Therefore, the Government and the official respondents are duty bound to consider the proposal for free transport at Sabarimala, since the larger public interest requires such a free transport facility. Though hire or reward may be the criteria for the classification of the 10 W.P.(C)No.38685 of 2022 vehicle, still a contract carriage can be operated free of fare or charges, in view of the decision of the Apex Court in **Hindustan Aeronautics Limited v. Registering Authority [(1999) 8 SCC** **169]** . The 6[th] respondent KSRTC is unaffected, inasmuch as, Exts.P4 and P5 schemes in general and Chapter VI of the Motor Vehicles Act will not prohibit the proposed contract carriage operation, which is free of cost. 2. On 30.11.2022, when this writ petition came up for admission, the learned Special Government Pleader took notice for respondents 1 to 4. The learned Standing Counsel for Travancore Devaswom Board took notice for the 5[th] respondent and the learned Standing Counsel for KSRTC took notice for the 6[th] respondent. 3. Heard the learned counsel for the petitioner, the learned Special Government Pleader for respondents 1 to 4, the learned Standing Counsel for Travancore Devaswom Board for the 5[th] respondent and also the learned Standing Counsel for KSRTC for the 6[th] respondent. 4. During the course of arguments, the learned counsel for the petitioner reiterated the contentions raised in the writ petition. The learned counsel addressed arguments with reference to various provisions under the Motor Vehicles Act, especially the amended provisions of Sections 66 and 67 of the Motor Vehicles Act, as amended by the Motor Vehicles (Amendment) Act, 2019. The 11 W.P.(C)No.38685 of 2022 learned counsel would submit that though the request made in Ext.P3 representation dated 22.11.2022 before the 4[th] respondent District Collector, who is also the Chairperson of Regional Transport Authority, Pathanamthitta, was to grant special permits under Section 88(8) of the Motor Vehicles Act, 1988 to the contract carriages offered by the petitioner, for conducting free service from Nilakkal to Pamba and vice versa, for carrying Sabarimala pilgrims, in the writ petition the petitioner has raised contentions with reference to Article 19(1)(d) and 21 of the Constitution of India, the object of the enactment, i.e., the Motor Vehicles Act, etc. 5. On the other hand, the learned Special Government Pleader for the official respondents would contend that the free service from Nilakkal to Pamba and vice versa proposed by the petitioner, for Sabarimala pilgrims, using contract carriages with special permits granted under Section 88(8) of the Motor Vehicles Act, 1988, is nothing but a stage carriage operation with corridor restriction, which cannot be permitted. The request made by the petitioner in Ext.P3 was mainly to grant special permit to the contract carriages offered by them, invoking the provisions under Section 88(8) of the Motor Vehicles Act. A contract carriage or other vehicle covered by a special permit granted under Section 88(8) of the said Act cannot be used for transporting different groups of Sabarimala pilgrims from Nilakkal to Pamba and vice versa. 12 W.P.(C)No.38685 of 2022 6. The learned Standing Counsel for KSRTC would also raise similar contentions. 7. We shall now deal with various provisions under the Motor Vehicles Act, 1988, including the amended provisions of the said Act by Act 32 of 2019 and also the law laid down by the decisions of the Apex Court and the High Courts on the distinction between a contract carriage and a stage carriage. 8. The Motor Vehicles Act, 1988 (for brevity, ‘the MV Act’) was enacted to consolidate and amend the law relating to motor vehicles. Clause (7) of Section 2 of the MV Act defines ‘contract carriage’ to mean a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum; (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes; (i) a maxi-cab; and (ii) a motor-cab notwithstanding that separate fares are charged for its passengers. As held by the Apex Court in **State of Andhra Pradesh v. Noorulla Khan [(2004) 6 SCC 194]** 13 W.P.(C)No.38685 of 2022 the words ‘under a contract’ refer to a single contract and not more than one contract. 9. Clause (35) of Section 2 defines ‘public service vehicle to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi-cab, a motor-cab, contract carriage, and stage carriage. Clause (40) of Section 2 of the MV Act defines ‘stage carriage’ to mean a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. Clause (43) of Section 2 defines ‘tourist vehicle’ to mean a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf. Clause (47) of Section 2 defines ‘transport vehicle’ to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. 10. Chapter IV of the MV Act deals with registration of motor vehicles. Section 39 of the MV Act deals with necessity for registration. As per Section 39, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or 14 W.P.(C)No.38685 of 2022 cancelled and the vehicle carries a registration mark displayed in the prescribed manner. As per the proviso to Section 39, nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. 11. Section 56 of the MV Act deals with certificate of fitness of transport vehicles. As per sub-section (1) of Section 56, subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder. 12. Chapter V of the MV Act deals with control of transport vehicles. Section 66 of the Act deals with necessity for permits. As per sub-section (1) of Section 66, no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the 15 W.P.(C)No.38685 of 2022 vehicle in that place in the manner in which the vehicle is being used. As per the first proviso to sub-section (1) of Section 66, a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage. As per the second proviso, a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not. As per the third proviso, a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. As per the fourth proviso to sub-section (1) of Section 66, inserted by Section 29(i) of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019], where a transport vehicle has been issued with any permit or permits, as well as a licence under this Act, such vehicle may be used either under the permit, or permits, so issued to it, or under such licence, at the discretion of the vehicle owner. As per sub-section (3) of section 66, the provisions of sub-section (1) shall not apply to the vehicles enumerated in clauses (a) to (q). As per clause (q) to sub-section (3) of Section 66, inserted by Section 29(ii) of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019], the provisions of sub-section (1) shall not apply to any transport vehicle having been issued a licence under a 16 W.P.(C)No.38685 of 2022 scheme, under sub-section (3) of Section 67 or sub-section (1) of Section 88-A, or plying under such orders as may be issued by the Central Government or by the State Government. 13. Section 66A of the MV Act inserted by Section 30 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019], deals with National Transportation Policy. As per Section 66A, the Central Government may develop a National Transportation Policy consistent with the objects of this Act in concurrence with the State Governments and other agencies with a view to (i) establish a planning framework for passengers and goods transportation within which transport bodies are to operate; (ii) establish a medium and long term planning framework for all forms of road transport, identify areas for the development of transport improvement infrastructure across India in consultation with the authorities and agencies related to ports, railways and aviation as well as with local and State level planning, land holding and regulatory authorities for the delivery of an integrated multimodal transport system; (iii) establish the framework of grant of permits and schemes; (iv) establish strategic policy for transport by road and its role as a link to other means of transport; (v) identify strategic policies and specify priorities for the transport system that address current and future challenges; (vi) provide medium to long term strategic directions, priorities and actions; (vii) promote competition 17 W.P.(C)No.38685 of 2022 innovation, increase in capacity, seamless mobility and greater efficiency in transport of goods or livestock or passengers, and economical use of resources; (viii) safeguard the interest of the public and promote equity, while seeking to enhance private participation and public-private partnership in the transport sector; (ix) demonstrate an integrated approach to transport and land use planning; (x) identify the challenges that the National Transportation Policy seeks to address; and (xi) address any other matter deemed relevant by the Central Government. 14. Section 66B of the MV Act, inserted by Section 30 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, provides no bar against permit holders to apply and hold licences under schemes. As Section 66B, no person who holds the permit issued under this Act shall (a) be disqualified from applying for a licence under the scheme made under sub-section (3) of Section 67 or sub-section (1) of Section 88A by reason of holding such permit; and (b) be required to get such permit cancelled on being issued a licence under any scheme made under this Act. Section 67 of the MV Act, inserted by Section 31 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, deals with power to State Government to control road transport. As per sub-section (1) of Section 67, a State Government, having regard to (a) the advantages offered to the public, trade and industry by the 18 W.P.(C)No.38685 of 2022 development of motor transport; (b) the desirability of co-ordinating road and rail transport; (c) the desirability of preventing the deterioration of the road system, and (d) promoting effective competition among the transport service providers, may, from time to time, by notification in the Official Gazette issue directions both to the State Transport Authority and Regional Transport Authority regarding the passengers' convenience, economically competitive fares, prevention of overcrowding and road safety. As per subsection (2) of Section 67, any direction under sub-section (1) regarding the fixing of fares and freights for stage carriages, contract carriages and goods carriages may provide that such fares or freights shall be inclusive of the tax payable by the passengers or the consignors of the goods, as the case may be, to the operators of the stage carriages, contract carriages or goods carriages under any law for the time being in force relating to tax on passengers and goods. As per the proviso to sub-section (2) of Section 67, the State Government may subject to such conditions as it may deem fit, and - with a view to achieving the objectives specified in clause (d) of sub section (1), relax all or any of the provisions made under this Chapter. 15. As per sub-section (3) of Section 67, notwithstanding anything contained in this Act, the State Government may, by notification in the Official Gazette, modify any permit issued under 19 W.P.(C)No.38685 of 2022 this Act or make schemes for the transportation of goods and passengers and issue licenses under such scheme for the promotion of development and efficiency in transportation (a) last mile connectivity; (b) rural transport; (c) reducing traffic congestion; (d) improving urban transport; (e) safety of road users; (f) better utilisation of transportation assets; (g) the enhancement of economic vitality of the area, through competitiveness, productivity and efficiency; (h) the increase in the accessibility and mobility of people; (i) the protection and enhancement of the environment; (j) the promotion of energy conservation; (k) improvement of the quality of life; (l) enhance integration and connectivity of the transportation system, across and between modes of transport; and (m) such other matters as the Central Government may deem fit. As per sub-section (4) of Section 67, the scheme framed under subsection (3), shall specify the fees to be charged, form of application and grant of a licence including the renewal, suspension, cancellation or modification of such licence. 16. Section 68 of the MV Act deals with transport authorities. As per sub-section (1) of Section 68, the State Government shall, by notification in the Official Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in subsection (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge 20 W.P.(C)No.38685 of 2022 throughout such areas (referred to as regions in Chapter V) as may be specified in the notification, in respect of each Regional Transport Authority; the powers and functions conferred by or under this Chapter on such Authorities. As per sub-section (3) of Section 68, the State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under Section 67 [which deals with the power of the State Government to control road transport] and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the powers and functions enumerated in clauses (a) to (d) of sub-section (3). 17. As per sub-section (4) of Section 68 of the MV Act, for the purpose of exercising and discharging the powers and functions specified in sub-section (3), a State Transport Authority, may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority, and the Regional Transport Authority shall, in the discharge of its functions under this Act, give effect to and be guided by such directions. As per sub-section (5) of Section 68, the State Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under Section 96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitations and conditions as may be prescribed by the said rules. 21 W.P.(C)No.38685 of 2022 18. Section 73 of the MV Act deals with application for contract carriage permit. As per Section 73, an application for a permit in respect of a contract carriage (referred to as a contract carriage permit in Chapter V) shall contain the particulars enumerated in clauses (a) to (c) thereof. Section 74 deals with grant of contract carriage permit. As per sub-section (1) of Section 74, 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. As per the proviso to sub-section (1), no such permit shall be granted in respect of any area not specified in the application. As per subsection (2) of Section 74, 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 conditions enumerated in clauses (i) to (xiii) thereof. As per the proviso to sub-section (2) of Section 74, inserted by Section 33 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, the Regional Transport Authority may in the interest of - last mile connectivity waive any such conditions in respect of any such types of vehicles as may be specified by the Central Government. 22 W.P.(C)No.38685 of 2022 19. Section 84 of the MV Act deals with general conditions attaching to all permits. As per Section 84, the conditions enumerated in clauses (a) to (g) thereof shall be the conditions of every permit. As per clause (a), the vehicle to which the permit relates shall carry a valid certificate of fitness issued under Section 56 and shall at all times so maintained as to comply with the requirements of the MV Act and the rules made thereunder. As per clause (b), the vehicle to which the permit relates shall not be driven at a speed exceeding the speed permitted under the MV Act. As per clause (c), any prohibition or restriction imposed and any fares or freight fixed by notification made under Section 67 shall be observed in connection with the vehicle to which the permit relates. 20. Section 86 of the MV Act deals with cancellation and suspension of permits. As per sub-section (1) of Section 86, the transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit (a) on the breach of any condition specified in Section 84 or of any condition contained in the permit, or (b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or (c) if the holder of the permit ceases to own the vehicle covered by the permit, or (d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or (e) if the holder of the goods carriage permit, fails without reasonable cause, to use the 23 W.P.(C)No.38685 of 2022 vehicle for the purposes for which the permit was granted, or (f) if the holder of the permit acquires the citizenship of any foreign country. As per the proviso to sub-section (1) of Section 86, no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation. As per sub-section (2) of Section 86, the transport authority may exercise the powers conferred on it under sub-section (1) in relation to a permit granted by any authority or person to whom power in this behalf has been delegated under subsection (5) of Section 68 as if the said permit was a permit granted by the transport authority. As per sub-section (3) of Section 86, where a transport authority cancels or suspends a permit, it shall give to the holder in writing its reasons for the action taken. 21. As per sub-section (4) of Section 86, the powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit may be exercised by any authority or person to whom such powers have been delegated under sub-section (5) of Section 68. As per subsection (5) of Section 86, where a permit is liable to be cancelled or suspended under clause (a) or clause (b) or clause (e) of sub-section (1) and the transport authority is of opinion that having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit if the holder of the 24 W.P.(C)No.38685 of 2022 permit agrees to pay a certain sum of money, then, notwithstanding anything contained in sub-section (1), the transport authority may, instead of cancelling or suspending the permit, as the case may be, recover from the holder of the permit the sum of money agreed upon. As per sub-section (6) of Section 86, the powers exercisable by the transport authority under sub-section (5) may, where an appeal has been preferred under Section 89, be exercised also by the appellate authority. As per sub-section (7) of Section 86, in - relation to a permit referred to in sub section (9) of Section 88, the powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit, may be exercised by any transport authority and any authority or persons to whom power in this behalf has been - delegated under sub section (5) of Section 68, as if the said permit was a permit granted by any such authority or persons. 22. Section 88 of the MV Act deals with validation of permits for use outside the region in which it is granted. As per sub-section (1) of Section 88, except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport 25 W.P.(C)No.38685 of 2022 Authority of that other State or by the Regional Transport Authority concerned. As per sub-section (8) of Section 88, notwithstanding anything contained in sub-section (1), but subject to any rules that may be made under this Act by the Central Government, the Regional Transport Authority of any one region or, as the case may be, the State Transport Authority, may, for the convenience of the public, grant a special permit to any public service vehicle including any vehicle covered by a permit issued under Section 72 (including a reserve stage carriage) or under Section 74 or under sub-section (9) of this section for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down along the line of route passengers not included in the contract, and in every case where such special permit is granted, the Regional Transport Authority shall assign to the vehicle, for display thereon, a special distinguishing mark in the form and manner specified by the Central Government and such special permit shall be valid in any other region or State without the countersignature of the Regional Transport Authority of the other region or of the State Transport Authority of the other State, as the case may be. As per sub-section (9) of Section 88, notwithstanding anything contained in sub-section (1), but subject to any rules that may be made by the Central Government under sub-section (14), any State Transport Authority 26 W.P.(C)No.38685 of 2022 may, for the purpose of promoting tourism, grant permits in respect of tourist vehicles valid for the whole of India, or in such contiguous States not being less than three in number including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application and the provisions of Sections 73, 74, 80, 81, 82, 83, 84, 85, 86, 62, clause (d) of sub-section (1) of Section 87 and Section 89 shall, as far as may be, apply in relation to such permits. 23. Section 88A of the MV Act, as inserted by Section 34 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, deals with power of Central Government to make schemes for National, multimodal and inter-state transport of passengers and goods. As per sub-section (1) of Section 88A, notwithstanding anything contained in this Act, the Central Government may, by notification in the Official Gazette, modify any permit issued under this Act or make schemes for national, multimodal and inter-State transportation of goods or passengers, and issue or modify licenses under, such scheme for the following purposes, namely (a) last mile connectivity; (b) rural transport; (c) improving the movement of freight, and logistics; (d) better utilisation of transportation assets; (e) the enhancement to the economic vitality of the area, especially by enabling competitiveness, productivity and efficiency; (f) the increase in the accessibility and 27 W.P.(C)No.38685 of 2022 mobility of people; (g) the protection and enhancement of the environment; (h) the promotion of energy conservation; (i) improvement of the quality of life; (j) enhancement of the integration and connectivity of the transportation system, across and between modes of transport; and (k) such other matters as the Central Government may deem fit. As per the first proviso to subsection (1) of Section 88A, the Central Government may, before taking any action under this sub-section seek concurrence of the State Governments. (2) Notwithstanding anything contained in subsection (1), two or more States may make schemes for the operation within such States for the inter-State transportation of goods or passengers. As per the second proviso to sub-section (1) of Section 88A, in the event of any repugnancy between the schemes made by the Central Government under sub-section (1) and schemes made by two or more States under this sub-section, the schemes made under sub-section (1) shall prevail. 24. Clause (1A) of Section 2 of the MV Act inserted by Section 2 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, defines ‘aggregator’ to mean a digital intermediary or market place for a passenger to connect with a driver for the purpose of transportation. As per Section 93 of the MV Act, after its substitution/insertion by Section 36 of the Motor Vehicles (Amendment) Act, 2019, an agent or canvasser or aggregator has 28 W.P.(C)No.38685 of 2022 to obtain licence. As per sub-section (1) of Section 93, no person shall engage himself (i) as an agent or a canvasser, in the sale of tickets for travel by public service vehicles or in otherwise soliciting customers for such vehicles, or (ii) as an agent in the business of collecting, forwarding or distributing goods carried by goods carriages, or (iii) as an aggregator, unless he has obtained a licence from such authority and subject to such conditions as may be prescribed by the State Government. As per the first proviso to subsection (1), while issuing the licence to an aggregator, the State Government may follow such guidelines as may be issued by the Central Government. As per the second proviso, every aggregator shall comply with the provisions of the Information Technology Act, 2000 and the Rules and Regulations made thereunder. As per sub- section (2) of Section 93, the conditions referred to in sub-section (1) may include all or any of the matters enumerated in clauses (a) to (f) thereof. As per sub-section (3) of Section 93, it shall be a condition of every licence that no agent or canvasser to whom the licence is granted shall advertise in any newspaper, book, list, classified directory or other publication unless there is contained in such advertisement appearing in such newspaper, book, list, classified directory or other publication the licence number, the date of expiry of licence and the particulars of the authority which granted the licence. 29 W.P.(C)No.38685 of 2022 25. Section 95 of the MV Act deals with power of State Government to make rules as to stage carriages and contract carriages. As per sub-section (1) of Section 95, a State Government may make rules to regulate, in respect of stage carriages and contract carriages and the conduct of passengers in such vehicles. As per sub-section (2), without prejudice to the generality of the foregoing provision, such rules may deal with the matters enumerated in clauses (a) to (i) thereof. Section 96 deals with power of State Government to make rules for the purposes of Chapter V [which deals with control of transport vehicles]. As per sub-section (1) of Section 96, a State Government may make rules for the purpose of carrying into effect the provisions of Chapter V. As per sub-section (2), without prejudice to the generality of the foregoing power, rules under this section may be made with respect to all or any of the matters enumerated in clauses (i) to (xxxiii) thereof. Clauses (xxxiia) and (xxxiib), inserted by Section 38 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, empowers the State Government to make rules with respect to framing of schemes under sub-section (3) of Section 67; and the promotion of effective competition, passenger convenience and safety, competitive fares and prevention of overcrowding, respectively. 26. Section 192A of the MV Act deals with using vehicle 30 W.P.(C)No.38685 of 2022 without permit. As per sub-section (1) of Section 192A, whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of subsection (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both. As per the proviso to sub-section (1) of Section 192A, the court may for reasons to be recorded, impose a lesser punishment. 27. Sub-section (1) of Section 192A of the MV Act, as inserted/substituted by Section 75 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of subsection (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with imprisonment for a term which may extend to six months and a fine of ten thousand rupees and for any subsequent offence with 31 W.P.(C)No.38685 of 2022 imprisonment which may extend to one year but shall not be less than six months or with fine of ten thousand rupees or with both. As per the proviso to sub-section (1) of Section 192A, the Court may for reasons to be recorded, impose a lesser punishment. 28. Section 193 of the MV Act, as substituted by Section 77 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, deals with punishment of agents, canvassers and aggregators without proper authority. As per sub-section (1) of Section 193, whoever engages himself as an agent or canvasser in contravention of the provisions of Section 93 or of any rules made thereunder shall be punishable for the first offence with fine of one thousand rupees and for any second or subsequent offence with imprisonment which may extend to six months, or with fine of two thousand rupees, or with both. As per sub-section (2), whoever engages himself as an aggregator in contravention of the provisions of Section 93 or of any rules made thereunder shall be punishable with fine up to one lakh rupees but shall not be less than twenty five thousand rupees. As per sub-section (3), whoever, while operating as an aggregator contravenes a condition of the licence granted under sub-section (1) of section 93, not designated by the State Government as a material condition, shall be punishable with fine of five thousand rupees. 32 W.P.(C)No.38685 of 2022 29. Section 194A, inserted by Section 79 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, deals with carriage of excess passengers. As per Section 194A, whoever drives a transport vehicle or causes or allows a transport vehicle to be driven while carrying more passengers than is authorised in the registration certificate of such transport vehicle or the permit conditions applicable to such transport vehicle shall be punishable with a fine of two hundred rupees per excess passenger. As per the proviso to Section 194A, such transport vehicle shall not be allowed to move before the excess passengers are off-loaded and an alternative transport is arranged for such passengers. Section 194F deals with use of horns and silence zones. Section 195 deals with imposition of minimum fine under certain circumstances; Section 196 deals with driving uninsured vehicle; Section 197 deals with taking vehicle without authority; Section 198 deals with unauthorised interference with vehicle; and Section 199 deals with offences by companies. 30. Section 207 of the MV Act deals with power to detain vehicles used without certificate of registration, permit, etc. As per sub-section (1) of Section 207, any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 33 W.P.(C)No.38685 of 2022 39 or without the permit required by sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle. As per the proviso to sub-section (1) of Section 207, where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by subsection (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof. As per subsection (2) of Section 207, where a motor vehicle has been seized and detained under sub-section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose. 31. The Kerala Motor Vehicles Rules, 1989 (for brevity, ‘the KMV Rules’) made by the State Government, in exercise of its rule making power under the relevant provisions of the MV Act was 34 W.P.(C)No.38685 of 2022 published vide notification dated 25.07.1989. Clause (za) of Rule 2 of the KMV Rules define ‘Tourist Permit’ to mean a contract carriage permit granted under sub-section (9) of Section 88 of the MV Act. Chapter V of the KMV Rules deals with control of transport vehicles. Rule 117 deals with necessity for permit. As per sub-rule (1) of Rule 117, a permit under sub-section (1) of Section 66 of the MV Act shall be necessary in the case of any motor vehicle other than an omni bus for private use adapted to carry more than nine persons excluding the driver referred to in subsection (4) of Section 66 of the MV Act unless specifically exempted by a notification issued by the Government. 32. Rule 121 of the KMV Rules deals with Regional Transport Authorities and Rule 133 deals with power of the Regional Transport Authority. Rule 137 deals with State Transport Authority and Rule 138 deals with delegation of powers of the State Transport Authority. As per Rule 138, the State Transport Authority may, for the prompt and convenient despatch of its business, by general or special resolution delegate all or any of the powers vested in it to its Secretary, to its Chairman and to the Regional Transport Officers, as stated in the said Rule, provided that no delegation shall be made in respect of the matters enumerated in clauses (a) to (f) thereof. As per clause (f), no delegation shall be made in respect of the power under Section 86 of the MV Act to cancel a permit. 35 W.P.(C)No.38685 of 2022 33. Distinguishing features between ‘stage carriage’ and ‘contract carriage’:- Clause (3) of Section 2 of the Motor Vehicles Act, 1939 defined ‘contract carriage’ to mean a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicles as a whole at or for a fixed or agreed rate of sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares. By the Motor Vehicles (Amendment) Act, 1969, which came into force with effect from 02.03.1970, clause (3) of Section 2 was amended and after that amendment clause (3) defined ‘contract carriage’ to mean a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum- (i) on a time basis whether or not with reference to any route or distance, or (ii) from one point to another, and in either case without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares. 34. The Motor Vehicles Act, 1939 was repealed and the new Act, i.e., the Motor Vehicles Act, 1988, came into force with effect from 01.07.1989. Though there is no change in the definition of 36 W.P.(C)No.38685 of 2022 ‘motor cab’ and also ‘stage carriage’, the definition of ‘contract carriage’ has been changed. As per clause (7) of Section 2 of the MV Act, 1988 ‘contract carriage’ means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicles as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicles or any person authorised by him in this behalf on a fixed or an agreed rate or sum- (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey; and includes- (i) a maxi cab; and (ii) a motor cab notwithstanding that separate fares are charged for its passengers. 35. In **Brijendra Kumar Chaudhari v. State of U.P. [(1992) 4 SCC 703]** a Three-Judge Bench of the Apex Court viewed that the change in the definition of ‘contract carriage’ in clause (7) of Section 2 of the Motor Vehicles Act, 1988 (Act 59 of 1988), was intended to convey more explicitly what the legislature intended to convey by those words even under the old Act. 36. The distinguishing features between a ‘stage carriage’ and a ‘contract carriage’ came up for consideration before the Apex Court as well as various High Courts, in the context of the provisions 37 W.P.(C)No.38685 of 2022 under the Motor Vehicles Act, 1935 and the Motor Vehicles Act, 1988, in the following decisions; 37. In **Roshan Lal Gautham v. State of U.P. [AIR 1965 SC 991]** in the context of clause (3) of Section 2 of the MV Act, 1935, which defined the term ‘contract carriage’ and clause (29) of Section 2 of the said Act, which defined the term ‘stage carriage Constitution Bench of the Apex Court held that, by clause (3) of Section 2, a contract carriage is defined as a motor vehicle which carries a passenger or passengers on hire or reward under a contract from one point to another without stopping to pick up or set down along the line of that route passengers not included in the contract. A stage carriage is defined by clause (29) of Section 2, as a motor vehicle carrying or adapted to carry passengers for hire or reward at separate fares paid for the whole journey or for stages of the journey. The distinction between the two is that the contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel. 38. In **V. Govindarajulu v. Regional Transport Officer [AIR 1986 AP 7]** the question that came up for consideration 38 W.P.(C)No.38685 of 2022 before a Full Bench of the Andhra Pradesh High Court was as follows; when is a ‘contract carriage’ as defined under clause (3) of Section 2 of the MV Act, 1939 said to have been used as a ‘stage carriage’ as defined under clause (29) of Section 2 of the said Act, in order to attract the levy and demand of the increased rate of tax for a stage carriage, as notified under Section 3 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963. While answering that question, the Full Bench considered the distinguishing features between a ‘stage carriage’ and a ‘contract carriage’. The Full Bench held that the definition of ‘contract carriage’ is plain and the language not too elastic and wide so as to bring within its sweep a situation never intended by the Legislature. The dominant factor that determines whether a transport vehicle is plied as a contract carriage or as a stage carriage is the actual user of the vehicle and not the permit granted authorising the use. Paragraph 7 of the said decision reads thus; “7. It would be clear from a combined reading of the definitions of ‘contract carriage’, ‘stage carriage’, ‘permit’, ‘public service vehicle’ and ‘transport vehicle’ that a contract carriage and a stage carriage are public service vehicles used for the carriage of passengers for hire or reward. A contract carriage or a stage carriage can be used as a transport vehicle under a permit granted by the State or Regional Transport Authority. The permit is for the use of the transport vehicle as a 39 W.P.(C)No.38685 of 2022 contract carriage or as a stage carriage. Now the distinction between a contract carriage and a stage carriage is clearly drawn in the definition of ‘contract carriage’ under section 2(3) and ‘stage carriage’ under section 2(29) of the Act. The definition of ‘contract carriage’ is plain and the language not too elastic and wide so as to bring within its sweep a situation never intended by the Legislature. A transport vehicle is a contract carriage when the vehicle as a whole is hired for a fixed or agreed sum under a contract express or implied by a passenger or passengers from one point to another or on a time basis whether or not with reference to any route, and in either case without stopping to pick up or set down along the line of route passengers not included in the contract. On the other hand, in the case of a ‘stage carriage’ a transport vehicle is not hired as a whole and only separate fares are collected from individual passengers either for the whole journey or for stages of the journey and the restrictions relating to a contract carriage use of the vehicle as a whole for a fixed sum and the journey between two points without a right to pick up passengers en route or set down passengers are not there. In this context Rule 213 [sic : Rule 185] of the Andhra Pradesh Motor Vehicles Rules which lays down additional conditions for the permits becomes relevant. Sub-rule IV condition (vii) [sic: Rule 185(1)(e)(v)] makes it obligatory for the owner of a contract carriage to maintain a list of passengers travelling in the vehicle in the form prescribed therein in respect of each trip and such list shall be produced before the checking officer on demand by him. Thus, it 40 W.P.(C)No.38685 of 2022 is clear that the dominant factor that determines whether a transport vehicle is plied as a contract carriage or as a stage carriage is the actual user of the vehicle and not the permit granted authorising the use.” (underline supplied) 39. In **V. Govindarajulu [AIR 1986 AP 7]** the Full Bench of the Andhra Pradesh High Court was dealing with a case in which, a contract carriage bearing registration No. AAA-1999 was found carrying 49 adult passengers in all from Tadipatri to Anantapur. was stopped and checked by the Motor Vehicles Inspector, Anantapur on 25.09.1984 at 4.00 pm near Singanamala tank on Anantapur - Tadipatri road. All the passengers boarded the vehicle - at Tadipatri bus stand. They paid an individual fare of Rs.5/ each. All the passengers did not belong to a single party and each was travelling on his own work. The trip sheet maintained in the bus did not indicate any contract, express or implied, between the passengers and the owner of the contract carriage. Therefore, the Motor Vehicles Inspector concluded that the vehicle was illegally used as a stage carriage by collecting individual fares. Based on the check report submitted by the Motor Vehicles Inspector, Anantapur, the Regional Transport Officer issued a show-cause notice to the registered owner of the contract carriage. The registered owner submitted his explanation. The Regional Transport Officer on a consideration of the report of the checking officer found that the 41 W.P.(C)No.38685 of 2022 contract carriage had been illegally used as a stage carriage, holding that all the passengers that boarded the contract carriage paid individual fare of Rs.5/-, that there was no express or implied contract between the passengers and the contract carriage owner and that the list of passengers maintained did not tally with the passengers that were actually found travelling in the bus. The registered owner was therefore directed to pay the difference of Rs.2,750/- for the quarter ending 30.09.1984 being the difference in tax payable when the vehicle is used as a contract carriage and the tax payable when the vehicle is used as a stage carriage. Aggrieved against the said decision, the owner of the contract carriage filed writ petition before the High Court, invoking the extraordinary jurisdiction under Article 226 of the Constitution. When W.P.No.15820 of 1984 came up for hearing before the Division Bench, the learned Judges felt the necessity to have an authoritative pronouncement by a Full Bench on the question and accordingly referred that writ petition and cases involving similar question to the Full Bench. 40. In **V. Govindarajulu [AIR 1986 AP 7]** , it was contended before the Full Bench that the mere fact that individual fares were collected from the passengers does not make the vehicle a stage carriage. The permit was for the use of the vehicle as a contract carriage and to ply between two fixed places and all the 42 W.P.(C)No.38685 of 2022 passengers who travelled in the vehicle were travelling only between those two places and no passenger was picked up on the way, and the use of the vehicle was as a contract carriage and not as a stage carriage. If no passengers were picked up or set down along the line of the route, the vehicle cannot be classified as a stage carriage. The Full Bench found that the said contention ignores the essential part of the definition of ‘contract carriage’, namely, that the contract, express or implied, to use the vehicle must be as a whole for a fixed sum. The essential condition is that a single party or person should be exercising full control for the use of the vehicle. If there is no single contract in respect of the vehicle and if no person or leader of the party could exercise full control of the vehicle and several passengers have separately contracted for the use of the vehicle and paid individual fares, such a transport vehicle cannot fall within the definition of contract carriage. But if there is a prior contract for the use of the vehicle as a whole with the owner, the mere fact that individual fares were collected by the leader of the party from the passengers does not make the vehicle a stage carriage. Paragraph 8 of the said decision reads thus; “8. The learned counsel for the petitioners contended: The mere fact that individual fares were collected from the passengers does not make the vehicle a stage carriage. There must be a valid permit for the use of the vehicle as a stage carriage. The valid permit held by the 43 W.P.(C)No.38685 of 2022 petitioners in these cases was only for the use of the vehicle as a contract carriage and to ply between two fixed places and all the passengers who travelled in the vehicle were travelling only between those two places and no passenger was picked up on the way and the user of the vehicle was as a contract carriage and not as a stage carriage. It is essential for a contract carriage to be classified as a stage carriage, that the contract carriage should be able to pick up or set down along the line of the route passengers not included in the contract. If no passengers were picked up or set down along the line of the route, the vehicle cannot be classified as a stage carriage. This contention, in our view, ignores the ‘ ’ essential part of the definition of contract carriage , namely, that the contract, express or implied, to use the vehicle must be as a whole for a fixed sum. The essential condition is that a single party or person should be exercising full control for the use of the vehicle. In other words, was there a single contract in respect of the vehicle as a whole? If there is no single contract in respect of the vehicle and if no person or leader of the party could exercise full control of the vehicle and several passengers have separately contracted for the use of the vehicle and pay individual fares, such a transport vehicle cannot fall within the definition of contract carriage. But if there is a prior contract for the use of the vehicle as a whole with the owner, the mere fact that individual fares were collected by the leader of the party from the passengers does not make the vehicle a stage carriage. Though a contract carriage and a stage carriage are public service vehicles as defined under 44 W.P.(C)No.38685 of 2022 Section 2(25) of the Act, it is in the nature of the user that the distinction between the two types of transport vehicles is drawn.” (underline supplied) 41. In **V. Govindarajulu [AIR 1986 AP 7]** , the Full Bench held that, the essential difference between a contract carriage and a stage carriage is that in the former there is a prior contract between the passenger or passengers for the use of the vehicle as a whole for a fixed or agreed sum while in the latter there is absence of such a prior contract and the passengers board the bus en route and pay the fare for the distance they propose to travel. The Full Bench disagreed with the statement of law made by an earlier Division Bench that the essential condition for holding that a motor vehicle was plying as a stage carriage is that it should have picked up passengers en route. Paragraphs 13 to 16 of the said decision read thus; “13. The Supreme Court in Roshan Lal v. State of U.P., AIR 1965 SC 991 pointed out the distinction between a contract carriage and a stage carriage as defined under section 2(3) and 2(29) thus— “contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it, but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en 45 W.P.(C)No.38685 of 2022 route who pay the fare for the distance they propose to travel.” 14. Thus, the essential difference between a contract carriage and a stage carriage is that in the former there is a prior contract between the passenger or passengers for the use of the vehicle as a whole for a fixed or agreed sum while in the latter there is absence of such a prior contract and the passengers board the bus en route and pay the fare for the distance they propose to travel. 15. The unreported decisions of this Court relied upon by the learned counsel for the petitioners in W.P.No. 898 of 1972 and W.A.No.943 of 1973 preferred against the decision in W.P.No.898 of 1972 and W.A.No.17 of 1977 in which decision in W.A.No.943 of 1973 was followed, are not of much assistance to the learned counsel. In W.P.No.898 of 1972 undoubtedly there was a prior agreement entered into by one Babu Rao to take a party of persons from Vijayawada to Hyderabad and back and the vehicle was engaged as a whole for hire for a fixed amount of Rs. 400/-. Therefore, the learned Judge rightly held that the transport vehicle was used as a contract carriage. In W.A.No.943 of 1973, the decision in W.P.No.898 of 1972 was merely affirmed and in W.A.No.17 of 1977 the decision in W.A. No.943 of 1973 was followed. The learned counsel, however, submits that there was a discordant note struck from the earlier decision in W.P.No.6127 of 1970 and W.A.No.131 of 1972 in W.P.No.3714 of 1982 by a Division Bench of this Court consisting of Madhava Reddy, A.C.J., and Punnayya, J. It is true that in that case the learned Judges observed that 46 W.P.(C)No.38685 of 2022 “The essential condition for holding that a motor vehicle was plying as a stage carriage is that it should have picked up passengers or set down passengers en route. So long as all the passengers were picked up at the starting point, in this case at Bangalore and were set down at the last point, i.e., Madras, and were not set down anywhere en route, the contract carriage which was permitted to proceed from Bangalore to Madras with 35 passengers cannot be said to have plied as a stage carriage. Suffice to refer to a judgment of this Court in W.A.No.17 of 1977. Our learned brother Ramachandra Rao, J., speaking for the Bench held: The mere fact that individual fares were collected from the passengers did not lead to the conclusion that the contract carriage was used as a stage carriage.” 16. With great respect to the learned Judges we find it difficult to agree with the statement of law made that the essential condition for holding that a motor vehicle was plying as a stage carriage is that it should have picked up passengers en route. Such limited operation of the definition of contract carriage is not permissible on the plain language employed in the definition.” (underline supplied) 42. In **Brijendra Kumar Chaudhari v. State of U.P. [(1992) 4 SCC 703]** , the question that came up for consideration before a Three-Judge Bench of the Apex Court was as to whether the contract carriage permit holders of ‘mini buses’ are entitled to 47 W.P.(C)No.38685 of 2022 pick up individual passengers at the starting point of their journey. Clause (d) of Section 2 of the U.P. Motor Vehicles (Special Provision) Act, 1976 define ‘mini bus’ to mean an omni bus which is constructed or adapted to carry not more than thirty five persons excluding the driver. The Apex Court noticed that, clause (3) of Section 2 of the MV Act, 1939 defined ‘contract carriage’ to mean a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicles as a whole at or for a fixed or agreed rate of sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares. By the Motor Vehicles (Amendment) Act, 1969 (Act 56 of 1969), which came into force with effect from 02.03.1970, clause (3) of Section 2 was amended and after that amendment, clause (3) defined ‘contract carriage’ to mean a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum- (i) on a time basis whether or not with reference to any route or distance, or (ii) from one point to another, and in either case without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares. 48 W.P.(C)No.38685 of 2022 The MV Act, 1939 was repealed and the new Act, i.e., the MV Act, 1988 (Act 59 of 1988) came into force with effect from 01.07.1989. There is no change in the definition of ‘motor cab’ and also ‘stage carriage’. The definition of ‘contract carriage’, however, has been changed. As per clause (7) of Section 2 of Act 59 of 1988 ‘contract carriage’ means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicles as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicles or any person authorised by him in this behalf on a fixed or an agreed rate or sum- (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey; and includes- (i) a maxi cab; and (ii) a motor cab notwithstanding that separate fares are charged for its passengers. In paragraph 7 of the judgment [@ page 707 of SCC] the Apex Court viewed that the change in the definition of ‘contract carriage’ in clause (7) of Section 2 of Act 59 of 1988 was intended to convey more explicitly what the legislature intended to convey by those words even under the old Act. The Apex Court noticed that the Legislature has used a new word ‘maxi cab’ and that is defined in 49 W.P.(C)No.38685 of 2022 clause (22) of Section 2 of Act 59 of 1988 to mean any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward. There is no definition of ‘mini bus’ in the MV Act. In the light of the definition set out in clause (d) of Section 2 of the of the U.P. Motor Vehicles (Special Provision) Act, 1976 and the other definitions in Act 59 of 1988 only a motor vehicle constructed or adapted to carry not more than thirty five passengers excluding the driver and which is not a ‘maxi cab” or ‘motor cab’ will normally be treated as a ‘mini bus’. It will not come under the definition of ‘motor car’ in clause (26) of Section 2, as it is a transport vehicle within the meaning of clause (47) of Section 2. But the definition of ‘omni bus’ is wide enough to include within it ‘mini bus’ as well. Therefore, the Apex Court held that a contract carriage permit granted in respect of a ‘mini bus’ will fall under the main part of the definition in clause (7) of Section 2 of Act 59 of 1988. Paragraphs 5 to 8 of the said decision read thus; “5. The question which thus arises for consideration in these appeals is whether the contract carries permit holders of mini buses are entitled to pick up individual passengers at the starting point of their journey. 6. It would be convenient and necessary at this stage to refer to the relevant provisions under the old Motor Vehicles Act, 1939 and the provisions of Motor Vehicles Act, 1988 (hereinafter called the Act). Broadly the public 50 W.P.(C)No.38685 of 2022 passenger transport motor vehicles recognised under the Act were ‘motor cab’ and ‘omnibus’ which in turn with reference to its user permit is either a ‘contract carriage’ or a ‘stage carriage’. These descriptive vehicles were defined in the old Act as it was originally enacted as under: “2.(15) ‘motor cab’ means any motor vehicles constructed, adapted or used to carry not more than six passengers excluding the driver, for hire or reward.” ‘Omnibus’ and ‘maxi cab’ were not defined in the original Act but definition of ‘omnibus’ was inserted by the Motor Vehicles (Amendment) Act, 1956 which reads as under: “2.(18A) ‘omnibus’ means any motor vehicle constructed or adapted to carry more than six persons excluding the driver.” ‘Stage carriage’ was defined in Section 2(29) of the Old Act as follows: - “2.(29) ‘stage carriage’ means a motor vehicles carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey.” ‘Contract carriage’ was defined in Section 2(3) and that as it stood prior to 1970 was under: - “(3) ‘contract carriage’ means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicles as a whole 51 W.P.(C)No.38685 of 2022 at or for a fixed or agreed rate of sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares.” After it was amended by Act 56 of 1969 with effect from March 2, 1970 the definition read: “(3) ‘contract carriage” means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum- (i) on a time basis whether or not with reference to any route or distance, or (ii) from one point to another, and in either case without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab notwithstanding that the passengers may pay separate fares.” 7. The Motor Vehicles Act, 1939 was repealed and the new Act 59 of 1988 came to force as already stated with effect from July 1, 1989. There is no change in the definition of ‘motor cab’. The definition of ‘stage carriage’ also remains the same. The definition of ‘contract carriage’, however, has been changed which in our view was intended to convey more explicitly what the legislature intended to convey by those words even under the old Act and that definition reads as follows: 52 W.P.(C)No.38685 of 2022 “2.(7) ‘contract carriage’ means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicles as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicles or any person authorised by him in this behalf on a fixed or an agreed rate or sum- (a) on a tune basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey; and includes(i) a maxi cab; and (ii) a motor cab notwithstanding that separate fares are charged for its passengers.” The Legislature has used a new word ‘maxi cab’ and that is defined as follows: “2.(22) ‘maxi cab’ means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward.” 8. There is no definition of ‘mini bus’ in the Motor Vehicles Act but we have to look up to its definition only in the U.P. Act above referred to. In the light of that definition set out above and the other definitions in the New Act only a motor vehicle constructed or adapted to 53 W.P.(C)No.38685 of 2022 carry not more than thirty five passengers excluding the driver and which is not a ‘maxi cab” or ‘motor cab’ will normally be treated as a mini bus. It will not come under the definition of ‘motor car’ in Section 2(26) as it is a transport vehicle within the meaning of Section 2(47). But the definition of ‘omni bus’ is wide enough to include within it mini bus as well. Therefore a contract carriage permit granted in respect of a mini bus will fall under the main part of the definition in Section 2(7) of the Act. (underline supplied) 43. In **Brijendra Kumar Chaudhari [(1992) 4 SCC 703]** one of the contentions raised before the Three-Judge Bench, by the learned counsel for the appellants was that, though under a contract carriage permit only those persons who are mentioned in the contract could be picked up and stopping on the route to pick up or set down passengers is prohibited, there could be several contracts because definition states that it is a motor vehicle which ‘carries a ’ passenger or passengers . The Apex Court held that it is not possible to read the words ‘under a contract’ in the context as referring to both a single contract and more than one contract. If the construction placed by the learned counsel is accepted there would be no distinction between stage carriage and contract carriage permits. A stage carriage is intended to meet the requirements of the general travelling public. But the contract carriages are for those who want to hire the vehicle collectively or individually for a group or party for their transport from place to place and the whole vehicle 54 W.P.(C)No.38685 of 2022 is at their disposal. The contract shall be prior and the persons who are to be carried shall be known prior to the journey is also clear from the other limitation that the vehicle cannot stop to pick up or set down passengers not included in the contract anywhere during the journey. If as contended by the learned counsel, contract carriage permit holder can pick up individual passengers at the starting point of the journey it is virtually a stage carriage with corridor restriction. The definition in the Act has added the words ‘for the carriage of passengers mentioned therein (contract)’ which were not there earlier. These words clearly show that there must be a prior contract and the passengers shall be settled in advance. Paragraphs 9 and 10 of the said decision read thus; “9. The argument of the learned Counsel for the appellants was that though under a contract carriage permit only those persons who are mentioned in the contract could be picked up and stopping on the route to pick up or set down passengers is prohibited, there could be several contracts because definition states that it is motor vehicle which ‘carries a passenger or passengers’. 10. The definition makes it clear that in order that vehicle could be used to transport passenger or passengers there must be a prior contract express or implied that the contract must indicate as to who are the passengers to be carried that the contract shall have been entered into by a person with the holder of the permit or any person authorised by him and that the engagement under ‘a contract’ is for use of the vehicle as a whole. It 55 W.P.(C)No.38685 of 2022 is not possible to read the words ‘under a contract’ in the context as referring to both a single contract and more that one contract. If the construction placed by the learned counsel is accepted there would be no distinction between stage carriage and contract carriage permits. Both these clauses of permits are intended to meet different requirements. A stage carriage is intended to meet the requirements of the general travelling public. But the contract carriages are for those who want to hire the vehicle collectively or individually for a group or party for their transport from place to place and the whole vehicle is at their disposal. This is also made clear in Section 88(8) of the Act corresponding to Section 63(6) of the old Act wherein it is provided: “88(8). Notwithstanding anything contained in sub-section (1), but subject to any rules that may be made under this Act by the Central Government, the Regional Transport Authority of any one region or, as the case may be, the State Transport Authority, may, for the convenience of the public, grant a special permit in relation to a vehicle covered by a permit issued under Section 72 (including a reserve stage carriage) or under Section 74 or under sub-section (9) of this Section for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down along the line of route passengers not included in the contract, and in every case where such special 56 W.P.(C)No.38685 of 2022 permit is granted, the Regional Transport Authority shall assign to the vehicle, for display thereon, a special distinguishing mark in the form and manner specified by the Central Government and such special permit shall be valid in any other region or state without the counter signature of the Regional Transport Authority of the other region or of the State Transport Authority of other State, as the case may be.” That the contract shall be prior and the persons who are to be carried shall be known prior to the journey is also clear from the other limitation that the vehicle cannot stop to pick up or set down passengers not included in the contract anywhere during the journey. As pointed out by this Court in Roshan Lal Gautham v. State of U.P.[1965 (1) SCR 841 : AIR 1961 SC 991]: “The contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up other passengers on route. The stage carriage on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for distance they propose to travel.” If as contended by the learned counsel, contract carriage permit holder can pick up individual passengers at the starting point of the journey it is virtually a stage carriage with corridor restriction. Some express buses and stage carriages with corridor restriction pick up 57 W.P.(C)No.38685 of 2022 passengers at the starting point of the journey and drop them at the last termini of the route without the right to pick up or drop passengers on the notified route between the two termini. Further the definition in the Act has added the words ‘for the carriage of passenger mentioned therein (contract)’ which were not there earlier. These words clearly show that there must be a prior contract and the passengers shall be settled in advance.” (underline supplied) 44. In **Brijendra Kumar Chaudhari [(1992) 4 SCC 703]** another contention raised before the Three-Judge Bench, by the learned counsel for the appellants was that, the latter part of the definition of contract carriage which says that ‘notwithstanding that separate fares are charged for its passengers’ would show that there could be separate fares for its passengers and that, therefore, individual passengers could be picked up at the starting point Repelling the said contention, the Apex Court held that, the definition of a contract carriage under clause (7) of Section 2 is exhaustive and takes into its fold all types of vehicles which are permitted to ply as contract carriage irrespective of their size and seating capacity. In the main part of the definition which applies to all vehicles, certain limitations and conditions are referred to as implied in the grant of a contract carriage permit. However, an exception has been made in the case of a motor cab and that is notwithstanding separate fares are charged from its passengers a contract carriage permit could be 58 W.P.(C)No.38685 of 2022 granted in favour of such motor cab. But even in the case of a motor cab the condition relating to not picking up or dropping passengers on the route is applicable. Mini bus is neither a maxi cab nor a motor cab and, therefore, the exception provided in the last part of the definition will not be applicable to the case of a mini bus. Paragraph 11 of the judgment reads thus; “11. It was then contended by the learned counsel for the appellants that the latter part of the definition of contract carriage which says that ‘notwithstanding that separate fares are charged for its passengers’ would show that there could be separate fares for its passengers and that, therefore, individual passengers could be picked up at the starting point. According to him this is an exception to an otherwise contract carriage permit under the main part of the definition of Section 2(7). This contention is unsustainable. The definition of a contract carriage under Section 2(7) is exhaustive and takes into its fold all types of vehicles which are permitted to ply as contract carriage irrespective of their size and seating capacity. In the main part of the definition which applies to all vehicles certain limitations and conditions are referred to as implied in the grant of a contract carriage permit. However, an exception has been made in the case of a motor cab and that is notwithstanding separate fares are charged from its passengers a contract carriage permit could be granted in favour of such motor cab. But even in the case of a motor cab the condition relating to not picking up or dropping passengers on the route is applicable. The 59 W.P.(C)No.38685 of 2022 exception also is applicable only where the motor cab is under its permit or under any law entitled or eligible to charge separate fares from its passengers. The grant of contract carriage permit in respect of a motor cab will automatically attract all the conditions provided in the main part of the section. However, if there is any other provision or law under which the motor cabs are permitted to charge separate fares from its passengers then notwithstanding their entitlement to charge separate fares from its passengers it would be considered as having a contract carriage permit. As already stated mini bus is neither a maxi cab nor a motor cab and, therefore, the exception provided in the last part of the definition will not be applicable to the case of a mini bus. In fact it was not the case of the appellants themselves that they are running a maxi cab or that their vehicles are motor cabs. For the foregoing reasons the appeals were dismissed. No costs.” (underline supplied) 45. In **Nirmala Jagdishchandra Kabra v. Transport** **Commissioner [(1997) 9 SCC 227]** the Apex Court held that the very permit for which the contract for carriage of the passengers granted should contain the names of the passengers to carry from one destination to another destination without picking up or setting down en route for hire or reward but when the holder of a permit is another and permits them to carry the passengers and make the contract dehors those mentioned in the list of passengers enclosed to the permit as contract carriage and take the passengers from one 60 W.P.(C)No.38685 of 2022 destination to another, even without picking up or setting down en route, the necessary consequence would be that the vehicle has been or is being used as a stage carriage but not a contract carriage. Under those circumstances, obviously, the authority had rightly detained the vehicle for the contravention of the conditions of the permit. Paragraph 4 of the said decision reads thus; “4. It is contended by Shri. Arun Jaitley, learned senior counsel for the petitioner that the petitioner has taken the vehicle on hire basis from the owner of the vehicle who had the permit for contract carriage of the passengers from one destination to another. They are not collecting any individual fare en route by picking up or setting down the passengers. They are picking up passengers from one place and taking them for tour to the other destination and, therefore, it is a ‘contract carriage’ within the meaning of Section 2(7) of the Act. It is not a Stage carriage permit but one of contract carriage and, therefore, the view taken by the High Court is not correct in law. It is true that if the holder of the vehicle obtains a contract carriage, the owner may carry a passenger or passengers for hire or reward on contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum. In other words, the very permit for which the contract for carriage of the passengers granted should contain the names of the passengers to carry 61 W.P.(C)No.38685 of 2022 from one destination to another destination without picking up or setting down en route for hire or reward but when the holder of a permit is another and permits them to carry the passengers and make the contract dehors those mentioned in the list of passengers enclosed to the permit as contract carriage and take the passengers from one destination to another, even without picking up or setting down en route, the necessary consequence would be that the vehicle has been or is being used as a stage carriage but not a contract carriage. Under those circumstances, obviously, the authority had rightly detained the vehicle for the contravention of the conditions of the permit. Therefore, the mandamus, as sought for, was rightly refused by the High Court. The learned counsel sought reliance on a judgment of the Madras High Court in N. Krishnasami Chetty v. The Licensing Officer, AIR 1988 Mad. 274. The learned Judges have not correctly appreciated the legal position. Therefore, it is not correct in view of the above law. It is accordingly overruled.” (underline supplied) 46. In **State of A.P. v. Noorulla Khan [(2004) 6 SCC** **194]** the Apex Court held that, the definition of ‘contract carriage’ in clause (7) of Section 2 of the Motor Vehicles Act, 1988 makes it clear that, (i) in order that a vehicle can be used to transport passenger/passengers there must a prior contract express or implied; (ii) contract shall have to be entered into by a person with the holder of the permit or any person authorised by him; (iii) 62 W.P.(C)No.38685 of 2022 engagement under the contract must be for use of the vehicle as a whole; (iv) contract must indicate the names of passengers to be carried in the vehicle; (v) vehicle is engaged on a fixed or an agreed rate or sum on a time basis whether or not with reference to any route or distance or from one point to another; (vi) without stopping to pick up or set down passengers not included in the contract anywhere during the journey. 47. In **Noorulla Khan [(2004) 6 SCC 194]** the Apex Court was dealing with the Civil Appeals filed by State of Andhra Pradesh and others challenging the judgment of a Division Bench of Andhra Pradesh High Court, whereby the High Court struck down clause (c) - - of sub rule (1) of Rule 297A and clause (f) of sub rule (6) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules, 1989 being ultra vires the provisions of the Motor Vehicles Act, 1988 and Article 19(1)(g) of the Constitution of India. Clause (c) of sub-rule (1) of Rule 297A and clause (f) of sub-rule (6) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules, read thus; “297A. Special provisions regarding licensing of agents engaged in the sales of tickets or in otherwise soliciting customers for public service vehicles.- (1) In this rule, unless the context otherwise requires, (a) & (b) xxx xxx (c) ‘Common purpose of journey’ means the intention shared alike by all the persons travelling by the public service vehicles; 63 W.P.(C)No.38685 of 2022 - (i) to attend a meeting, gathering or function, social, religious, political and the like, or - (ii) to go on a pilgrimage or tour to visit places of tourist's interest or both. But it shall not include the intention or the act of such persons of merely travelling from one common point to another. xxx xxx xxx xxx - (6) An agent's licence shall be subject to the following conditions.- - (a) to (e) xxx xxx - (f) Where the public service vehicle has been, as a whole, engaged by a hiring party an agreement shall be drawn up in writing and executed by the agent and the hiring party or its authorised representative containing the following essential particulars and stipulations, namely: - (i) Name, Father's/Husband's Name, Age/ Occupation and full postal address of the members or/representative of the hiring party who executes the agreement; - (ii) An Annexure containing the list of all members of the hiring party giving their particulars in the following form: 1. Serial number, 2. Name of the Member: 3. Father's/Husband's name: 4. Age: 5. Full Postal Address: - (iii) The nature of the common purpose of the journey; 64 W.P.(C)No.38685 of 2022 - (iv) The period for which the vehicle is engaged by the hiring party; - (v) The places to be visited by the hiring party; - (vi) The place or places to be specified where all or some to be specified of the members of the hiring party are to be picked up or let down under the agreement; - (vii) Hire charges; - a) if payable in a lumpsum, the amount so payable; or - b) if calculable at a rate, the rate so agreed upon; and - c) in either case, the amount if any paid in advance and the time for the payment of the balance. - (viii) Additional charges, if any, payable in case the journey is delayed or extended at the instance of the hiring party.” 48. In **Noorulla Khan [(2004) 6 SCC 194]** , in the context of clause (c) of sub-rule (1) of Rule 297A of Andhra Pradesh Motor Vehicles Rules, 1989 the Apex Court held that, the distinction between a stage carriage permit or a contract carriage permit as envisaged by the Legislature has to be maintained as the two types of permits that are intended to meet different requirements. The contract carriages are for those who want to hire the vehicle collectively or individually for a group or a party for their transport to a destination/destinations. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the contract. There has 65 W.P.(C)No.38685 of 2022 to be only one contract for carrying the passengers mentioned in the contract from one destination to another. An agent or a group of persons/individuals cannot hire a public service vehicle for going from one place to another with passengers having different purposes. If such a construction is put then there would be no distinction between stage carriage or contract carriage permits. If contract carriage permit holder is permitted to pick up individual or a few of them from the starting point of journey and drop them at the last terminus of the route it would virtually be a Stage Carriage with corridor restriction. Stage carriage is intended to meet the requirements of the general public travelling from one destination to another having different purposes whereas a contract carriage is meant for those who want to hire a public service vehicle as a whole collectively for their transport from one destination to another having the same purpose. The Apex Court held that the High Court was not right in holding that the travelling party as a whole need not have a common purpose for their travel and it was sufficient if they had a common destination. The view taken runs contrary to the law laid down by the Apex Court in **Brijendra Kumar Chaudhari [(1992) 4 SCC 703]** and **Nirmala Jagdish Chandra Kabra [(1997) 9 SCC 227]** and, therefore, bad in law. 49. In **Noorulla Khan [(2004) 6 SCC 194]** , one of the - contentions raised before the Apex Court by the holders of All India 66 W.P.(C)No.38685 of 2022 Tourist Permits granted under sub-section (9) of Section 88 of the Motor Vehicles Act was that the rules framed by the State Government [i.e., the Andhra Pradesh Motor Vehicles Rules, 1989] under Sections 95 and 96 of the Motor Vehicles Act and the further conditions prescribed in Section 74 of the Act are not - applicable to All India Tourist Permit Vehicles. The Apex Court held that the High Court was not right in declaring ultra vires the Rules framed by the State Government [i.e., clause (c) of sub-rule (1) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules, 1989] provided that the party hiring the contract carriage vehicle should, not only, have the intention of travelling to the same destination but should also have the common purpose of travelling as well. In clause (c) of sub-rule (1) of Rule 297A ‘common purpose’ has been defined to mean the intention shared alike by all the persons travelling by the public service vehicles to attend a meeting, gathering or function, social, religious, political and the like, or to go to a pilgrimage or visit to place of tourist's interest or both. That it would not include the intention or the act of such persons merely travelling from one common point to another. Clause (c) of sub-rule (1) of Rule 297A framed by the State Government does not run counter to the provisions of clause (7) of Section 2 of the MV Act either in its intent or in its expression. The rule is in consonance with the intent of clause (7) of Section 2 of the Act. The same has been framed to fulfill 67 W.P.(C)No.38685 of 2022 the object with which clause (7) of Section 2 has been enacted. Any other interpretation would obliterate the distinction between a stage carriage permit and a contract carriage permit. The Apex Court - held clause (c) of sub rule (1) of Rule 297A of the Andhra Pradesh Motor Vehicles Rules to be intra vires and the finding to the contra recorded by the High Court was set aside. Paragraphs 12 to 16 of the said decision read thus; “12. In Rule 297A(1)(c) ‘common purpose of journey’ has been explained to mean common intention shared by all the persons travelling by the vehicle under the contract to attend a meeting, gathering or function which may be social, religious, political and the like or to go on a pilgrimage or place of tourist's interest but it shall not include the intention or the act of such persons of merely travelling from one common point to another. 13. High Court has held that ‘common purpose’ means that the passengers travelling together need to have, the common intention to travel to a common destination but they need not share the common intention of travelling for the same purpose as well. For instance, where a group of persons engage a contract carriage vehicle for travelling from Delhi to Agra they have the common intention of travelling to the same destination, i.e., from Delhi to Agra but their purpose of travel from Delhi to Agra could be different. In other words, according to the High Court, the words “under a contract” would include both single contract and more than one contract. 68 W.P.(C)No.38685 of 2022 14. This point was examined by this Court in Brijendra Kumar Chaudhari v. State of U.P. [(1992) 4 SCC 703]. It was held that it was not correct to read the words “under a contract” occurring in Section 2(7) of the Act to mean as referring to both a single contract and more than one contract. And in case such a construction is placed then the distinction between the contract carriage and the stage carriage perm would be lost and obliterated. It was held : (SCC pp. 708-10, para.10) **“10. xxx [already quoted hereinabove, Para.10.11]”** 15. Another case on the point is Nirmala Jagdish Chandra Kabra v. Transport Commissioner, (1997) 9 SCC 227. In this case a writ was filed by an agent who had hired on contract the vehicle from the carriage permit holder seeking an appropriate writ or direction declaring and holding that the authorities had no legal right or power to either seize or detain his vehicles solely on the allegation of collection of individual fare from the passengers at the starting point of journey without picking up or dropping the passengers en route. Petitioner was collecting individual fares per passenger from one destination to another but was not using the vehicle as a tourist vehicle hired to one group party. Writ petition was dismissed by the High Court. Dismissing the appeal it was held by this Court: **“4. xxx [already quoted hereinabove, Para.10.13]”** 16. The distinction between a stage carriage permit or a contract carriage permit as envisaged by the Legislature has to be maintained as the two types of permits are intended to meet different requirements. The contract carriages are for those who want to hire the vehicle 69 W.P.(C)No.38685 of 2022 collectively or individually for a group or a party for their transport to a destination/destinations. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the contract. There has to be only one contract for carrying the passengers mentioned in the contract from one destination to another. An agent or a group of persons/individuals cannot hire a public service vehicle for going from one place to another with passengers having different purposes. If such a construction is put then there would be no distinction between stage carriage or contract carriage permits. If contract carriage permit holder is permitted to pick up individual or a few of them from the starting point of journey and drop them at the last terminus of the route it would virtually be a Stage Carriage with corridor restriction. Stage carriage is intended to meet the requirements of the general public travelling from one destination to another having different purposes whereas a contract carriage is meant for those who want to hire a public service vehicle as a whole collectively for their transport from one destination to another having the same purpose. High Court was not right in holding that the travelling party as a whole need not have a common purpose for their travel and it was sufficient if they had a common destination. The view taken runs counter to the law laid down by this Court in Brijendra Kumar Chaudhari and Nirmala Jagdish Chandra Kabra cases (supra) and, therefore, bad in law. High Court was not right in declaring ultra vires the Rules framed by the State Government providing that the party hiring the contract carriage vehicle should, not only, have the 70 W.P.(C)No.38685 of 2022 intention of travelling to the same destination but should also have the common purpose of travelling as well. In Rule 297A(1)(c) ‘common purpose’ has been defined to mean the intention shared alike by all the persons travelling by the public service vehicles to attend a meeting, gathering or function, social, religious, political and the like, or to go to a pilgrimage or visit to place of tourist's interest or both. That it would not include the intention or the act of such persons merely travelling from one common point to another This Rule framed by the State Government does not run counter to the provisions of Section 2(7) of the Act either in its intent or in its expression. The rule is in consonance with the intent of Section 2(7) of the Act. The same has been framed to fulfill the object with which Section 2(7) has been enacted. Any other interpretation would obliterate the distinction between a stage carriage permit and a contract carriage permit.” 50. In **Sunilraj v. State of Kerala [2019 (2) KLT 211]** this Court held that the fundamental difference between a ‘contract carriage’ and a ‘stage carriage’ is that in the former there is a prior contract by the passenger or passengers for that carriage to be used as a whole for a fixed or agreed sum, while in the latter there is absence of such a prior contract and the passengers can board that carriage en route in individual capacity and pay the fare for the distance they travel. Therefore, if a ‘contract carriage’, which is granted permit under Section 74 of the MV Act is operated as a ‘stage carriage’, which requires grant of stage carriage permit under 71 W.P.(C)No.38685 of 2022 Section 72 of the said Act, it will amount to contravention of permit conditions. 51. The legal principles that can be culled out from the decisions referred to supra are as follows; - (i) The distinction between a ‘contract carriage’ and a ‘stage carriage’ is that a contract carriage is engaged for the whole of the journey between two points for the carriage of a person or persons hiring it but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel. [Roshan Lal Gautham - AIR 1965 SC 991]; - (ii) The dominant factor that determines whether a transport vehicle is plied as a ‘contract carriage’ or as a ‘stage carriage’ is the actual user of the vehicle and not the permit granted authorising the use. The contract, express or implied, to use the vehicle must be as a whole for a fixed sum. The essential condition is that a single party or person should be exercising full control for the use of the vehicle. If there is no single contract in respect of the vehicle and if no person or leader of the party could exercise full control of the vehicle and several passengers have separately contracted for the use of the vehicle and paid individual fares, such a transport vehicle cannot fall within the 72 W.P.(C)No.38685 of 2022 ‘ ’ definition of contract carriage . But if there is a prior contract for the use of the vehicle as a whole with the owner, the mere fact that individual fares were collected by the leader of the party from the passengers does not make the vehicle a ‘stage carriage’. [V. Govindarajulu - AIR 1986 AP 7 (FB)]; (iii) It is not possible to read the words ‘under a contract’ in clause (7) of Section 2 of the MV Act, 1989 as referring to both a single contract and more than one contract. If such a construction is accepted there would be no distinction between ‘stage carriage’ and ‘contract carriage’ permits. A ‘stage carriage’ is intended to meet the requirements of the general travelling public. On the other hand, ‘contract carriages’ are for those who want to hire the vehicle collectively or individually for a group or party for their transport from place to place and the whole vehicle is at their disposal. The contract shall be prior and the persons who are to be carried shall be known prior to the journey is also clear from the other limitation that the vehicle cannot stop to pick up or set down passengers not included in the contract anywhere during the journey. If the contract carriage permit holder can pick up individual passengers at the starting point of the journey it is virtually a stage carriage with corridor restriction. The definition of ‘contract carriage’ in clause (7) of Section 2 of the MV Act, 1988 has added the words ‘for the carriage of passengers 73 W.P.(C)No.38685 of 2022 mentioned therein’ (contract) which were not there in clause (3) of Section 2 of the MV Act, 1939 as amended by Act 56 of 1960. These words clearly show that there must be a prior contract and the passengers shall be settled in advance. [Brijendra Kumar Chaudhari – (1992) 4 SCC 703]; - (iv) The very permit for which the contract for carriage of the passengers granted should contain the names of the passengers to carry from one destination to another destination without picking up or setting down en route for hire or reward but when the holder of a permit is another and permits them to carry the passengers and make the contract dehors those mentioned in the list of passengers enclosed to the permit as contract carriage and take the passengers from one destination to another, even without picking up or setting down en route, the necessary consequence would be that the vehicle has been or is being used as a ‘stage carriage’ but not a ‘contract carriage’. [Nirmala Jagdishchandra Kabra - (1997) 9 SCC 227] (v) The distinction between a ‘stage carriage’ permit and a ‘contract carriage’ permit, as envisaged by the Legislature has to be maintained as the two types of permits are intended to meet different requirements. The ‘contract carriages’ are for those who want to hire the vehicle collectively or individually for a group or a party for their transport to a destination/destinations. The vehicle has to be hired as a whole for the carriage 74 W.P.(C)No.38685 of 2022 of passengers mentioned in the contract. There has to be only one contract for carrying the passengers mentioned in the contract from one destination to another. An agent or a group of persons/individuals cannot hire a public service vehicle for going from one place to another with passengers having different purposes. If contract carriage permit holder is permitted to pick up individual or a few of them from the starting point of journey and drop them at the last terminus of the route it would virtually be a ‘stage carriage’ with corridor restriction. A ‘stage carriage’ is intended to meet the requirements of the general public travelling from one destination to another having different purposes whereas a ‘contract carriage’ is meant for those who want to hire a public service vehicle as a whole collectively for their transport from one destination to another having the same purpose. [Noorulla Khan - (2004) 6 SCC 194]; (vi) The fundamental difference between a ‘contract carriage’ and a ‘stage carriage’ is that in the former there is a prior contract by the passenger or passengers for that carriage to be used as a whole for a fixed or agreed sum, while in the latter there is absence of such a prior contract and the passengers can board that carriage en route in individual capacity and pay the fare for the distance they travel. If a ‘contract carriage’, which is granted permit under Section 74 of the MV Act is operated as a ‘stage carriage’, which requires 75 W.P.(C)No.38685 of 2022 grant of stage carriage permit under Section 72 of the said Act, it will amount to contravention of permit conditions. [Sunilraj - 2019 (2) KLT 211]. 52. Therefore, a ‘contract carriage’ is meant for those who want to hire the vehicle collectively or individually for a group or a party having the same purpose, for their transport from one place to another. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the contract, i.e., the whole vehicle will be at their disposal. On the other hand, a ‘stage carriage’ is intended to meet the requirements of the general public travelling from one place to another having different purposes. Therefore, an agent or a group of persons/individuals cannot hire a ‘contract carriage’ for going from one place to another with passengers having different purposes. If individual passengers having different purposes are picked up in a ‘contract carriage’, at the starting point of the journey or en route, even if such passengers are included in the contract, ‘ ’ is virtually a stage carriage with corridor restriction. 53. As per sub-section (1) of Section 66 of the MV Act, no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the 76 W.P.(C)No.38685 of 2022 vehicle is being used. As per Section 84 of the MV Act, the conditions enumerated in clauses (a) to (g) thereof shall be the conditions of every permit. As per sub-section (1) of Section 192A of the MV Act, whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of subsection (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both. As per the proviso to sub-section (1) of Section 192A, the court may for reasons to be recorded, impose a lesser punishment. 54. Sub-section (1) of Section 192A, as inserted/ substituted by Section 75 of the Motor Vehicles (Amendment) Act, 2019 [with effect from 01.09.2019], provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of subsection (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may 77 W.P.(C)No.38685 of 2022 be used, shall be punishable for the first offence with imprisonment for a term which may extend to six months and a fine of ten thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than six months or with fine of ten thousand rupees or with both. As per proviso to sub-section (1) of Section 192A, the Court may for reasons to be recorded, impose a lesser punishment. 55. In the instant case, the main relief sought for in this writ petition is a writ of mandamus commanding respondents 1 to 4 to permit the petitioner to manage and operate transportation of pilgrims from Nilakkal to Pamba and vice versa, free of cost, in contract carriages having valid permits, as requested in Ext.P3 representation dated 22.11.2022 submitted before the 4[th] respondent District Collector, Pathanamthitta, who is also the Chairperson of the Regional Transport Authority, Pathanamthitta. The averments in the writ petition and also that contained in Ext.P3 representation would make it explicitly clear that the petitioner wants to manage and operate transportation of pilgrims from Nilakkal to Pamba and vice versa, free of cost, in contract carriages having valid permits, with seating capacity below 26 seats. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent State to consider Ext.P3 representation made before the 4[th] respondent District Collector and also a writ of mandamus 78 W.P.(C)No.38685 of 2022 commanding the 4[th] respondent District Collector to see that requisite special permits under Section 88(8) of the MV Act is issued to the vehicles offered by the petitioner for free transportation of pilgrims between Nilakkal and Pamba. In that context, the petitioner has also sought for a declaration that the Scheme notified vide Ext.P4 notification, i.e., G.O.(Ms)No.144/67/PW dated 20.07.1967 and the Scheme notified vide Ext.P5 notification, i.e., G.O.(P)No.54/91/PW&T dated 12.07.1991 will not restrict the operation of contract carriages between Nilakkal and Pamba. 56. The specific case of the petitioner is that, having regard to the plight of Sabarimala pilgrims, the petitioner has proposed a free service from Nilakkal to Pamba and vice versa, by taking 20 contract carriages on lease for free transportation of the pilgrims. In paragraphs 7 to 9 of the writ petition, the petitioner would point out the provisions under Section 2(7), 2(35), 2(47), 73, 74 and 88(8) of the MV Act. Clause (7) of Section 2 of the MV Act defines ‘contract carriage’; Clause (35) of Section 2 defines ‘public service vehicle’ and Clause (47) of Section 2 defines ‘transport vehicle’. Section 73 of the MV Act deals with application for contract carriage permit and Section 74 deals with grant of contract carriage permit. Sub-section (8) of Section 88 deals with special permit granted to any public service vehicle, including a vehicle covered by a stage carriage permit granted under Section 72 of the MV Act (including a reserve 79 W.P.(C)No.38685 of 2022 stage carriage), a contract carriage permit granted under Section 74 or an All-India permit granted under sub-section (9) of Section 88. 57. In view of the legal principles culled out hereinbefore at paragraph 53, a ‘stage carriage’ is intended to meet the requirements of the general travelling public. On the other hand, ‘contract carriages’ are for those who want to hire the vehicle collectively or individually for a group or a party for their transport to a destination or destinations and the whole vehicle is at their disposal. If the contract carriage permit holder can pick up individual passengers or few of them at the starting point and drop them at the last terminus of the route, it is virtually a stage carriage with corridor restriction. If a ‘contract carriage’ which is granted permit under Section 74 of the MV Act, is operated as a stage carriage, which requires grant of stage carriage permit under Section 72 of the said Act, it will amount to contravention of permit conditions, attracting the penal provisions under Section 192A of the said Act, for using vehicle without permit. 58. A reading of the provisions under sub-section (8) of Section 88 of the MV Act, which deals with grant of special permit to any public service vehicle, would show that such a permit is intended for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down along the line of route 80 W.P.(C)No.38685 of 2022 passengers not included in the contract. Therefore, if the holder of a special permit can pick up individual passengers or few of them at the starting point and drop them at the last terminus of the route, it is virtually a stage carriage with corridor restriction, which will amount to contravention of permit conditions, attracting the penal provisions under Section 192A of the said Act, for using vehicle without permit. Therefore, the operation of contact carriages covered by permits granted under Section 74 of the MV Act, which are granted with special permits under Section 88(8) of the said Act, for transportation of pilgrims from Nilakkal to Pamba and vice versa will amount to contravention of permit conditions, attracting the penal provisions under Section 192A of the said Act, for using vehicle without permit, since it is virtually a stage carriage with corridor restriction. 59. In **State of U.P. v. Harish Chandra [(1996) 9 SCC** **309]** the Apex Court held that under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law 81 W.P.(C)No.38685 of 2022 ## or to do something which is contrary to law. 60. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. 61. In **Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed the principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which 82 W.P.(C)No.38685 of 2022 there would be a failure of justice. 62. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. 63. As already noticed hereinbefore, the operation of contact carriages covered by permits granted under Section 74 of the MV Act, which are granted with special permits under Section 88(8) of the said Act, for transportation of pilgrims from Nilakkal to Pamba and vice versa will amount to contravention of permit conditions, attracting the penal provisions under Section 192A of the said Act, for using vehicle without permit, since it is virtually a stage carriage with corridor restrictions. Therefore, no writ of mandamus can be sought for, invoking the provisions under Article 226 of the Constitution of India, commanding respondents 1 to 4 to permit the petitioner to manage and operate transportation of pilgrims from Nilakkal to Pamba and vice versa in contact carriages having valid permits under Section 74 of the MV Act, which are issued with special permits under sub-section (8) of Section 88 of the said Act, since no mandamus can be issued directing the authorities under the MV Act to act in contravention of the statutory provisions in the said Act. 83 W.P.(C)No.38685 of 2022 64. After referring to the amended provisions of Section 66 and 67 of the MV Act, as amended by the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, the learned counsel for the petitioner would contend that the free service offered by the petitioner for transportation of pilgrims from Nilakkal to Pamba in contract carriages can be permitted by the 1[st] respondent State by granting licence. The learned counsel would also contend that the request made by the petitioner for transportation of pilgrims from Nilakkal to Pamba and vice versa, free of cost, in contract carriages will attract the principles of ‘Good Samaritan Law’. 65. Insofar as the arguments advanced by the learned counsel for the petitioner, with reference to the provisions of Sections 66 and 67 of the MV Act, as amended by the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, are concerned, we notice that the request made by the petitioner in Ext.P3 representation made before the 4[th] respondent District Collector, who is also the Chairperson of the Regional Transport Authority, Pathanamthitta is to grant special permits under Section 88(8) of the MV Act to operate contract carriages having valid permits, with seating capacity below 26 seats, for transportation of pilgrims from Nilakkal to Pamba and vice versa, free of cost. The request made in Ext.P3 representation or the pleadings in this writ petition are not with specific reference to the provisions of Sections 84 W.P.(C)No.38685 of 2022 66 and 67 of the MV Act, as amended by the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019. Admittedly, no request has been made before the 1[st] respondent State or the appropriate authority for licence invoking the amended provisions of the Act. Moreover, in the writ petition, the petitioner has no case that either the State Government or the Central Government has evolved any scheme for licence under the amended provisions of the MV Act, inserted by the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019. 66. In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In the said decision, the Apex Court noticed that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of 85 W.P.(C)No.38685 of 2022 such facts have to be pleaded and annexed to it. 67. In **Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639]** a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. 86 W.P.(C)No.38685 of 2022 68. A reading of the provisions of Sections 66 and 67 of the MV Act, as amended by the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, provides for grant of licence with a view to achieve the objectives specified in clause (d) of sub-section (10) of Section 67, i.e., for promoting effective competition among the transport service providers and also economically competitive fares. A reading of the provisions in clause (j) of sub-section (3) of Section 66 would make it clear that the issuance of such a licence can be made has to be made under a scheme framed under sub-section (3) of Section 67 [power to State Government to control road transport] or sub-section (1) of Section 88A [power of Central Government to make scheme for national, multi-model and inter- state transport of passengers and goods] or under such orders as may be issued by the Central Government or the State Government. As per subsection (3) of Section 67, the State Government may by a notification in the official gazette modify any permit issued under the MV Act or make scheme for transportation of goods and passengers and issue licence under such scheme for promotion of development and efficiency in transportation. As per sub-section (4) of Section 67 provides that the scheme framed under sub-section (3) shall specify the fees to be charged, form of application and grant of licence including the renewal, suspension, cancellation or modification of such licence. During the course of arguments, the learned counsel 87 W.P.(C)No.38685 of 2022 for the petitioner could not point out any scheme formulated by the State Government, in exercise of its powers under Section 67 of the MV Act or any notification issued in terms of sub-section (3) of Section 67. Therefore, in the absence of pleadings, we do not propose to consider the contentions raised by the learned counsel for the petitioner with reference to the provisions of Sections 66 and 67 of the MV Act, as amended by the Motor Vehicles (Amendment) Act, 2019, with effect from 01.09.2019, and that issue is left open to be decided in an appropriate case. 69. Insofar as the arguments advanced by the learned counsel for the petitioner that the request made by the petitioner for transportation of pilgrims from Nilakkal to Pamba and vice versa, free of cost, in contract carriages, will attract the principles of ‘Good Samaritan Law’, we notice that the Ministry of Road Transport and Highways issued Standard Operating Procedure for the examination of Good Samaritans by the Police or during trial, which was approved by the Apex Court in **Savelife Foundation v. Union of India [(2016) 7 SCC 194]** . A reading of the said standard operating procedure would make it explicitly clear that ‘Good Samaritan’ is a person who is a bystander or a passer-by, who chooses to assist an injured person or a person in distress on the road. Therefore, we find no merit in the arguments advanced by the learned counsel for the petitioner, relying on the principles of ‘Good Samaritan Law’. 88 W.P.(C)No.38685 of 2022 70. The learned counsel for the petitioner raised a contention that the fundamental right guaranteed under Article 19(1)(d) of the Constitution of India would entitle the owner/permit holder to provide free transportation facility to the public or pilgrims in public transport vehicles, which cannot be prevented by the State or the authorities under the MV Act. The learned counsel for the petitioner and also the learned Special Government Pleader have cited various decisions in support of their rival contentions. We do not propose to consider that issue in this writ petition, since the reliefs sought for in the writ petition are with specific reference to the request made by the petitioner in Ext.P3 representation submitted before the 4[th] respondent District Collector to grant special permits under Section 88(8) of the MV Act to the contract carriages taken on lease by the petitioner for free transportation of pilgrims from Nilakkal to Pamba and vice versa, and therefore that issue is also left open. 71. Another relief sought for in this writ petition is a declaration that the Scheme notified vide Ext.P4 notification, i.e., G.O.(Ms)No.144/67/PW dated 20.07.1967 and the Scheme notified vide Ext.P5 notification, i.e., G.O.(P)No.54/91/PW&T dated 12.07.1991 will not restrict the operation of contract carriages between Nilakkal and Pamba. Though, the learned counsel for the petitioner, the learned Special Government Pleader and also the learned Standing Counsel for KSRTC have addressed arguments on 89 W.P.(C)No.38685 of 2022 the above aspect, we notice that the petitioner has sought for that relief in the context of the main relief sought for in this writ petition, i.e., a writ of mandamus commanding the 1[st] respondent State to consider Ext.P3 representation made before the 4[th] respondent District Collector and also a writ of mandamus commanding the 4[th] respondent District Collector to see that requisite special permits under Section 88(8) of the MV Act is issued to the vehicles offered by the petitioner for free transportation of pilgrims between Nilakkal and Pamba. As already noticed hereinbefore, the operation of contact carriages covered by permits granted under Section 74 of the MV Act, which are granted with special permits under Section 88(8) of the said Act, for transportation of pilgrims from Nilakkal to Pamba and vice versa will amount to contravention of permit conditions, attracting the penal provisions under Section 192A of the said Act, for using vehicle without permit, since it is virtually a stage carriage with corridor restriction. In such circumstances, we do not propose to consider that issue in this writ petition, especially in view of the pendency of DBP No.74 of 2022, in which various issues in connection with Nilakkal-Pamba chain service conducted by KSRTC including collection of 30% additional fare during festival season and 25% additional fare for Ghat Sector are under consideration before this Court. 90 W.P.(C)No.38685 of 2022 In the above circumstances, this writ petition fails and the same is accordingly dismissed; however, leaving open the legal issues as stated hereinbefore. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** MIN 91 W.P.(C)No.38685 of 2022 92 W.P.(C)No.38685 of 2022 ## **`APPENDIX OF WP(C) 38685/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE JUDGMENT IN WP(C) 30842/2019 DATED 19.11.2019. ``` ``` Exhibit P2TRUE COPY OF THE CALCULATION STATEMENT SUBMITTED BY THE KSRTC IN DBP 74/2022. ``` - **`Exhibit P3 TRUE COPY OF THE REQUEST OF THE PETITIONER DATED 22.11.2022 BEFORE THE 4TH RESPONDENT.`** ``` Exhibit P4TRUE COPY OF THE RELEVANT PORTION OF THE SCHEME WHICH IS KNOWN AS KOLLAM- PAMBA ROUTE SCHEME G.O.(MS) 144/67/PW DATED 20.7.1967. ``` ``` Exhibit P5TRUE COPY OF THE SCHEME G.O.P.54/91 DATED 12.7.1991. ``` ``` Exhibit P6TRUE COPY OF THE NOTIFICATION NOS SWDD-24022/13/2020-633/200 DATED 31/3/2021 ISSUED BY THE GOVT. OF PUN- JAB ``` ``` Exhibit P7TRUE COPY OF THE NOTICATION N0018/KLUSTER/TPT/2019/755/76919 IS- SUED BY THE GOVT. OF THE NATIONAL CAP- ITAL TERRITORY OF DELHI ON 29-10-19. ```