Judgment

ALAGIRISWAMI, J.:- This is an appeal against the judgment of the High Court of Mysore striking down Rule 216 (2) of the Mysore Motor Vehicles Rules, 1963, introduced on 7th October, 1969, on the ground that it violates Art. 19 (1) (g) of the Constitution.

2. The respondent, who is a transport operator plying buses between Doddaballapur and Tumkur, wanted to replace one of his buses running on that route with a new one. Under the permit granted to him, which was valid up to 30-10-1975, his bus had a seating capacity of 30. On 2-11-1970 he applied to the Regional Transport Officer. Bangalore Region, for permission to alter the seating capacity of the new bus. which he had acquired, from 40 to 30. This application having been rejected he filed a petition for issue of a writ of mandamus directing the Regional Transport Officer to grant the necessary permission, and that petition having been allowed the State of Mysore has come on appeal to this Court by special leave.

3. The contention of the operator was that the impugned rule which fixed the minimum seating capacity of buses is really intended indirectly to compel the operators to pay more taxes, that he is already operating on a narrow margin of profit and if he is compelled to increase the number of seats in his bus he would incur losses because of the additional tax which he will have to pay and this is an interference with his right to carry on his business. According to the State the impugned Rule was intended to eliminate the evil of stage-carriage operators carrying passengers in excess of the seating capacity specified in the registration certificate and the permit, to the serious inconvenience and discomfort of the travelling public, in addition to causing loss of revenue to the State. There is no dispute that the bus in question can have a seating capacity of 40.

4. The impugned Rule, in so far as it is relevant, reads as follows:

"216 (1).......................

(2) The minimum seating capacity Of a Public Service Vehicle shall be directly proportionate to the wheel base of the vehicle. In all Public Service Vehicles other than motor cabs the minimum number of seats to be provided shall be as specified in column (2) of the Table below :

TABLE

Wheel base No. of seats

(Minimum seating capacity)

(1) (2)

254 to 293 cm. ... 16

294 to 305 cm. ... 20

306 to 343 cm. ... 25

344 to 407 cm. ... 30

408 to 432 cm. ... 35

433 to 496 cm. ... 45

497 to 534 cm. ... 50

above 535 cm. ... 55

Provided that the operator may increase the capacity consistent with the other rules relating to seating capacity and with due regard to the type of the chassis on which the body is fitted :

(3) Nothing in sub-rule (2) shall apply to,-

(i) stage carriages proposed to be operated exclusively in towns and cities; and

(ii) stage carriages registered prior to the coming into force of the Mysore Motor Vehicles (V Amendment) Rules, 1969:

Provided that when the body of a stage carriage specified in item (ii) is reconstructed, the seats shall be so arranged as to face the front and maximum number of seats to the satisfaction of the Registering Authority, shall be provided."

It is agreed by both the parties that there are only four manufacturers of bus chassis in the country with wheel bases and number of seats as given below :

Wheel Base Minimum number of seats to be provided

Name in Inches Cms. under Rule 216(2)

Hindusthan 179 455 45

" 216 549 55

Tata Mercedes 166 422 35

" 190 482 45

" 205 520 50

Fargo 165 419 35

" 185 469 45

" 212 538 55

Leyland 163 414 35

" 176 447 45

" 210 533 50

It will he noticed that the smallest bus available in the market can carry 35 passengers.

5. Section 70 of the Motor Vehicles Act enables rules to be made regulating the construction, equipment and maintenance of motor vehicles. In addition there is power to make rules regarding the seating arrangements in public service vehicles. Under S.48 (3) of the Act there is provision for fixing the maximum number of passengers that may be carr