Chattisgarh High Court
Gdr Educational Society vs Union Of India on 18 March, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 3191 of 2022
Ghanshyam Das Rungta Foundation Through Secretary Dr. Sourabh Rungta
S/o Mr. Santosh Rungta, Aged - 47 Years, R/o Rungta Bhawan, G.E. Road,
Ganjpara, District - Durg, Chhattisgarh
--- Petitioner(s)
versus
1 - Union of India Through Secretary Ministry of Road Transport And
Highways, Transport Bhawan, 1, Parliament Street, New Delhi,
2 - State of Chhattisgarh Through Secretary, Department of Transport,
Mahanadi Bhawan, Atal Nagar, District - Raipur, Chhattisgarh
3 - Regional Transport Officer Tehsil And District - Raipur Chhattisgarh
4 - Regional Transport Officer Tehsil And District - Durg Chhattisgarh
--- Respondent(s)
For Petitioner(s) : Mr. Siddharth Shukla, Advocate.
For Respondent No. 1/ UoI : Mr. Tushar Dhar Diwan, Advocate.
For Respondents No. 2 to: Mr. Prafull N Bharat, Advocate General
4/ State alongwith Mr. Rahul Tamaskar, Government
Advocate
GDR Educational Society Through Secretary Mr. Sonal Rungta, S/o Mr.
Santosh Rungta Aged About 48 Years, R/o Rungta Bhawan, G.E. Road,
Ganjpara, District : Durg, Chhattisgarh
---Petitioner(s)
Versus
1 - Union of India Through Secretary, Ministry of Road Transport And
Highways Transport Bhawan, 1, Parliament Street, New Delhi, District : New
Delhi, Delhi
2 - State of Chhattisgarh Through Secretary, Department of Transport
Mahanadi Bhawan, Atal Nagar, District : Raipur, Chhattisgarh
3 - Regional Transport Officer Tahsil And District Raipur, Chhattisgarh,
District : Durg, Chhattisgarh
4 - Regional Transport Officer Tehsil And District Durg, Chhattisgarh
--- Respondent(s)
For Petitioner(s) : Mr. Siddharth Shukla, Advocate.
For Respondent No. 1/ UoI : Mr. Tushar Dhar Diwan, Advocate.
For Respondents No. 2 to: Mr. Prafull N Bharat, Advocate General
4/ State alongwith Mr. Rahul Tamaskar, Government
Advocate
Jan Pragati Education Society Through Secretary Mr. Harjeet Singh Hura, S/o
Late Gulab Singh Hura, Aged - 55 Years, R/o JPES Office, 3rd Floor, Laxmi
Plaza, Opposite Electricity Office, Budhapara, District - Raipur, Chhattisgarh
---Petitioner(s)
Versus
1 - Union of India Through Secretary Ministry of Road Transport And Highways
Transport Bhawan, 1, Parliament Street, New Delhi.
2 - State of Chhattisgarh Through Secretary, Department of Transport,
Mahanadi Bhawan, Atal Nagar, District - Raipur, Chhattisgarh
3 - Regional Transport Officer Tehsil And District - Raipur, Chhattisgarh
--- Respondent(s)
For Petitioner(s) : Mr. Siddharth Shukla, Advocate.
For Respondent No. 1/ UoI : Mr. Tushar Dhar Diwan, Advocate.
For Respondents No. 2 : Mr. Prafull N Bharat, Advocate General
and 3/ State alongwith Mr. Rahul Tamaskar, Government
Advocate
Date of Hearing : 10/03/2025
Date of Order : 18 /03/2025
Hon'ble Mr. Ramesh Sinha, Chief Justice
Hon'ble Mr. Ravindra Kumar Agrawal, Judge
Hon'ble Mr. Bibhu Datta Guru, Judge
C.A.V Order
Per Ramesh Sinha, Chief Justice
1. These petitions have been listed before this Bench in view of the order
dated 17.02.2025 passed by a learned Division Bench of this High Court
wherein a reference has been made to this Bench on the following
question of law:
"Whether the State Government is competent in its rule-making
authority including under Section 96(2)(xxxiii) of the Act of
1988 to lay down the conditions for grant of permit as stated in
Section 76-B(16) of the Rules of 1994 and also in the light of
the decision of the Supreme Court in Subhash Chandra
(supra) followed in S.K.Bhatia (supra)?"
2. In the above three petitions, the petitioners have questioned the
constitutional validity of Rule 76-B(16) of the Chhattisgarh Motor
Vehicles Rules, 1994 (for short, the Rules of 1994).
3. The facts, in brief, as projected by the petitioners are that all the three
petitioners are Educational Societies and have established their
educational institutions at Durg and Raipur for Engineering,
Pharmaceuticals and Science & Technology. They own buses for
carrying their students studying in their colleges and schools. The State
of Chhattisgarh, on 30.11.2015 introduced amendment in the Rules of
1994 invoking powers under Section 96 of the Motor Vehicles Act, 1988
(for short, the Act of 1988) whereby Rule 76-B has been inserted with
head note 'conditions for school bus permit' and in condition No. 16 of
the said rule, it is stated that 'no vehicle shall be more than 12 years old'
which is sought to be challenged by the petitioners stating that the
conditions for school bus permit can be prescribed under Section 76 of
the Act of 1988 and not under Section 74 of the said Act. The buses
owned by the petitioners are covered under the category of 'private
service vehicle' as defined in Section 2(33) of the Act of 1988 and Rule
76-B(16) of the Rules of 1994 exceeds the limit of rule making authority.
Section 96 of the Act of 1988 do not give power to the State Government
to prescribe life of a vehicle under Rule 76-B(16) of the Rules of 1994
and it runs contrary to the decision rendered by the Division Bench of
this Court in the matter of Dr. Sandeep Jain & Others v. State of
Chhattisgarh & Others, in WPC No. 2004/2017, decided on
26.07.2018 wherein it has been declared that Rule 70-A of the Rules of
1994 is ultra vires to the Act of 1988 wherein a similar life of the stage
carriage vehicles was prescribed. Hence, Rule 76-B(16) of the Rules of
1994, deserves to be struck down as it is in violation of Section 41(7)
and Section 59 of the Act of 1988.
4. The State/respondent has filed its return to the writ petitions stating that
Rule 76-B(16) of the Rules of 1994 is constitutionally valid and cannot be
said to be violative of any of the fundamental rights of the petitioners as
has been guaranteed under Part III of the Constitution of India and
further, since the petitioners are the Societies registered under the
Societies Registration Act, they do not fall under the definition of 'citizen'
under Article 11 of the Constitution. The freedom guaranteed under
Article 19 of the Constitution can be enforced by a citizen and the
petitioners not being citizen, cannot challenge the validity of the
provisions of Rule 76-B(16) on the ground of violation of Article 19. The
Rule in question has been framed in exercise of powers conferred under
Section 96 of the Act of 1988 and it neither puts an end to the
registration of the vehicle nor does it make the vehicle legally dead. It
merely prohibits its usage to carry school children whose safety cannot
be compromised at any cost and as such, prayer has been made for
dismissal of these petitions.
5. All these three petitions were filed in the month of July, 2022. These
petitions were listed before the learned Division Bench on 25.07.2022,
02.11.2022, 12.01.2023, 22.02.2023, 08.05.2023, 03.07.2023,
13.07.2023, 21.07.2023, 04.08.2023, 23.08.2023, 20.09.2023,
03.10.2023, 28.03.2024, 04.04.2024, 10.04.2024, 18.04.2024,
24.04.2024, 03.05.2024, 02.07.2024, 26.07.2024, 28.08.2024. Vide
order dated 28.11.2024, these petitions were reserved for orders and
vide order dated 17.02.2025, the learned Division Bench has referred
the matter to this Bench for consideration on the following question of
law:
"Whether the State Government is competent in its rule-
making authority including under Section 96(2)(xxxiii) of the
Act of 1988 to lay down the conditions for grant of permit as
stated in Section 76-B(16) of the Rules of 1994 and also in
light of the decision of the Supreme Court in Subhash
Chandra (supra) followed in S.K.Bhatia (supra)?"
6. By the present petitions, the petitioners seek declaration of Rule 76-
B(16) of the Rules of 1994 as unconstitutional and ultra vires as the said
Rule is directly affecting the plying of the buses by the petitioners as the
buses which the petitioners sought to ply are more than 12 years old and
Rule 76-B(16) provides that no school bus shall be more than 12 years
old. The argument of the petitioners is that it contravenes Section 41(7)
of the Act of 1988 which provides that a certificate of registration shall be
valid for a period of 15 years from the date of issue of such certificate
and shall be renewable and in contravention of Section 59, the
respondent No. 1 had fixed the age limit of the school buses. Section 96
of the Act of 1988 gives power to the State Government to make rules
for various purposes.
7. The petitioners harp upon the decision of a Division Bench of this High
Court in Dr. Sandeep Jain (supra), wherein the constitutional validity of
Rule 70-A of the Rules of 1994 was under challenge which stood struck
down. The learned Division Bench itself has observed that the
amendment in Rule 76-B of the Rules of 1994 incorporating condition
No. 16 requiring that no school bus shall be more than 12 years old, was
brought by the rule-making authority upon the decision of this Court in
Subas Muduli v. State of Chhattisgarh {WPPIL No. 32/2015, decided
on 13.06.2016} wherein the facts of that case was that kid aged about 4
years was crushed under the wheels of a bus which was supposed to
take him to his school. The unfortunate father wrote a letter to the then
Chief Justice of this Court not claiming any compensation or any relief
personal to him, but only praying that the Court may take action to
ensure that such unfortunate accidents are avoided in the future.
8. Section 96(2)(xxxiii) of the Act of 1988 reads as under:
"96. Power of State Government to make rules for
the purposes of this Chapter.--(1) A State
Government may make rules for the purpose of carrying
into effect the provisions of this Chapter.
(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 following matters, namely:--
xxx xxx xxx
(xxxiii) any other matter which is to be or may be
prescribed."
9. Rule 76-B(16) of the Rules of 1994 reads as under:
"76-B. Conditions for school bus permit. - Subject to
the provision of sub-section (2) of Section 74, the
following conditions shall be attached to every school bus
Permit, namely:-
xxx xxx xxx
16. No school bus shall be more than 12 years old."
10. In the matter of Subhash Chandra & Others v. State of U.P. &
Others {(1980) 2 SCC 324}, the Apex Court has observed as under:
"4. Section 51(2)(x) authorises the impost of any
condition, of course, having a nexus with the statutory
purpose. It is undeniable that human safety is such
purpose. The State's neglect in this area of policing public
transport is deplorable but when it does act by
prescribing a condition the court cannot be persuaded into
little legalism and harmful negativism. The short question
is whether the prescription that the bus shall be at least a
seven-year old model one is relevant to the condition of
the vehicle and its passenger's comparative safety and
comfort on our chaotic highways. Obviously it is. The
older the model, the less chances of the latest safety
measures being built into the vehicle. Every new model
incorporates new devices to reduce danger and promote
comfort. Every new model assures its age to be young,
fresh and strong, less likely to suffer sudden failures and
breakages, less susceptible to wear and tear and mental
fatigue leading to unexpected collapse. When we buy a
car or any other machine why do we look for the latest
model? Vintage vehicles are good for centenarian display
of curios and cannot but be mobile menaces on our
notoriously neglected highways. We have no hesitation to
hold, from the point of view of the human rights of road
users, that the condition regarding the model of the
permitted bus is within jurisdiction, and not to prescribe
such safety clauses is abdication of statutory duty."
11. In S.K.Bhatia & Others v. State of U.P. & Others {AIR 1983 SC 988}
after placing reliance on the judgment in Subhash Chandra (supra), it
has been observed by the Apex Court, as under:
12. "The vires of Condition No. 18 is once again
challenged in these writ petitions. The grounds of
challenge, however, are most insubstantial. It was said
that there was no such condition in the case of omnibuses
and therefore, there was an infringement of Art. 14 of the
Constitution. It is incorrect to say that there is no such
condition in the case of omnibuses. In paragraph 5 of the
counter-affidavit filed in a Writ Petition Nos. 18-21 of 1981,
it is stated that in the case of omnibuses, there is a
condition that the vehicle should be replaced on the expiry
of five years from the date of registration. Further
omnibuses and mini buses constitute different classes and
are not comparable. Another submission was that
condition No. 18 is impossible of fulfillment since one of
the manufacturers of chassis of mini buses (Telco) is no
longer manufacturing such chassis. This is denied in the
counter-affidavit and we presume there are other
manufacturers in the country, who make or produce the
required chassis. In any case, that is a situation which can
be remedied by the transport authorities. The petitioners
can always pursue the remedies given to them under the
Motor Vehicles Act by way of appeal and revision. We fail
to see any infringement of any constitutional right. Another
submission was that the authority competent to impose
the condition, was not the Regional Transport Authority,
but the competent authority under sec 4 of the Utter
Pradesh Motor Vehicles (Special Provisions) Act. We
have already referred to Subhash Chander's case where it
has been held that the source of a power for imposing
condition No 18 is Sec. 51 (2) (x) of the Motor Vehicles
Act. Under Sec. 51 (2) (x), the authority empowered to
impose the condition is the Regional Transport Authority.
Section 4 of the Uttar Pradesh Motor Vehicles (Special
Provisions) Act deals with the authorisation of use of
private mini buses as stage carriages within specified
limits covered by an approved scheme and has nothing
whatever to do with the imposition of conditions on mini
buses playing as contract carriages. It was suggested that
the real object of Condition No. 13 is not the safety of the
passengers as thought in Subhash Chander's case, but to
eliminate mini buses from the field. There is no basis at all
for this submission. As we said, there is no substance in
any one of these submissions advanced by the
petitioners. All the writ petitions are, therefore, dismissed
with costs.
13. The aforesaid two decisions of the Apex Court has been followed by the
Allahabad High Court in Radhe Shyam Sharma v. Regional
Transport Authority, Kathgoda, Nainital {AIR 1991 All 158}.
14. From perusal of the judgment rendered by a Division Bench of this High
Court in Dr. Sandeep Jain (supra), it appears that the judgment passed
by the Apex Court in S.K.Bhatia (supra) and Subhash Chandra
(supra) has neither been taken into consideration were not brought to
the notice of the learned Division Bench wherein also similar issue was
involved.
15. Article 141 of the Constitution of India states that a law declared by
Supreme Court is binding on all the Courts within the territory of India.
The object of following binding precedents is to ensure broad
consistency and uniformity in deciding questions of law.
16. A Constitution Bench of the Madhya Pradesh High Court, in Jabalpur
Bus Operators Association v. State of M.P. {2002 SCC OnLine MP
631} observed as under:
"6. Article 141 of the Constitution of India envisages that-
"The law declared by the Supreme Court shall be
binding on all Courts within the territory of India."
Therefore, all Courts in India are bound to follow the
decision of the Apex Court, exception being doctrine of
'per incuriam' and 'sub-silentio'. This article empowers
the Apex Court to declare the law which becomes the
law of the land which is essential for a proper
administration of justice with the expectation that like
cases should be decided alike. Every Court is bound to
follow any case decided by a Court above it in the
hierarchy and Court is bound by precedents. A case is
regarded as a precedent when it furnishes rules which
may be applied in settling the rights of the parties. The
doctrine "Stare-dedsis", commonly called "The doctrine
of precedent" means adherence to decide cases on
settled principles and not to disturb matters which have
been established by judicial decisions. The precedent
should serve as a rule for future guidance in deciding
analogous cases (Words and Phrases, Permanent
Edition Vol. 33 P, 372-373). It cannot be doubted that
in the development of law, promotion of consistency
and certainty in decisions on all the law is maintained
and inconsistency avoided. However, perusal of
various decisions demonstrates that the Apex Court
and High Courts have been called upon to consider the
question of binding precedents from time to time.
Indisputable question is that the law declared by the
Supreme Court shall be binding on all Courts within the
territory of India. There seems no dispute to the
proposition that decision of Larger Bench of the Apex
Court is binding on Smaller Bench of the same Court
and the High Courts. The difficulty arises in case of
conflict between the two decisions by Benches
consisting of same number of Judges, whether to
follow the earlier or later and in absence of the Apex
Court decision, similar difficulty may arise with regard
to the High Court decisions. The normal rule is that in
the absence of any decision of the Apex Court,
subordinate Courts are bound to follow the decisions of
High Court to which they are subordinate, and where
conflict is between the judgments of a Single Bench
and Division Bench, Division Bench decision will have
to be followed and where there is conflict between
Division Bench and Larger Bench, the decision of
Larger Bench has to be followed. But where the conflict
is between two decisions pronounced by Benches
consisting of same number of Judges, difficulty arises
which decision is to be followed when after careful
examinations of the decisions, conclusion is that both
of them directly apply to the case before the Court.
High Courts have expressed different views, we have
found, some taking the line that the Court will be at
liberty to follow that decision which seems to it more
correct irrespective of the fact it is earlier or later in
point of time while others hold that the earlier decision
should be followed."
17. The Apex Court, in Dental Council of India v. Dr. Hedgewar Smruti
Rugna Seva Mandal, Hingoli & Others, {(2017) 13 SCC 115},
observed as under:
"23. The High Court has to realize the nature of the lis
or the controversy. It is quite different. It is not a
construction which is built at the risk of a plaintiff or the
defendant which can be demolished or redeemed by
grant of compensation. It is a situation where the order
has the potentiality to play with the career and life of
young. One may say, "... life is a foreign language; all
mis-pronounce it", but it has to be borne in mind that
artificial or contrived accident is not the goal of life.
24. There is no reason to invite a disaster by way of an
interim order. A Judge has to constantly remind himself
about the precedents in the field and not to be swayed
away by his own convictions. In this context, the oft-
quoted passage from Felix Frankfurter[13] would be apt
to remember:-
"For the highest exercise of judicial duty is to
subordinate one's personal pulls and one's private
views to the law of which we are all guardians ?
those impersonal convictions that make a society a
civilized community, and not the victims of personal
rule."
25. That leads us to say something about following the
precedents. The purpose is to have consistency. A
three-Judge Bench in State of Andhra Pradesh and
others v. A.P. Jaiswal {(2001) 1 SCC 748} observed:
(SCC p. 761, para 24)
"24. Consistency is the cornerstone of the
administration of justice. It is consistency which
creates confidence in the system and this
consistency can never be achieved without respect
to the rule of finality. It is with a view to achieve
consistency in judicial pronouncements, the courts
have evolved the rule of precedents, principle of
stare decisis, etc. These rules and principle are
based on public policy...."
26. In Arasmeta Captive Power Company Private Limited
and another v. Lafarge India Private Limited {(2013) 15
SCC 414}, dealing with the matter that related to the field
of arbitration, the Court emphatically observed that it is
an "endeavour to clear the maze, so that certainty
remains "A Definite" and finality is "Final"". (SCC p. 419,
para 2)
27. In this regard, we may travel a decade and a half
back. In Chandra Prakash and others v. State of U.P.
{(2002) 4 SCC 234}, it has been held: (SCC p. 245, para
22)
"22. ... The doctrine of binding precedent is of
utmost importance in the administration of our
judicial system. It promotes certainty and
consistency in judicial decisions. Judicial
consistency promotes confidence in the system,
therefore, there is this need for consistency in the
enunciation of legal principles in the decisions of this
Court."
28. In the instant case, the precedents are clear and
luculent. It does not allow any space for any kind of
equivocation. In Priya Gupta {(2012) 7 SCC 433}, the
Court had requested the High Courts to ensure strict
adherence to the prescribed time schedule, process of
selection and role of merit and except in very exceptional
cases, to decline interim orders. The Court had added the
words "humility at our command". The "grammar of
humility in law" in the hierarchical system basically means
to abide by the precedents unless distinguishable but not
to ignore them and pass orders because of an individual
notion or perception. Adjudication in accordance with
precedents is cultivation of humility. As long as a
precedent is binding under the constitutional scheme, it
has to be respected by all. It has been said by Simone
Weil {Simone Weil (1909-1943), Gravity and Grace,
1947}:
"In the intellectual order, the virtue of humility is
nothing more nor less than the power of attention".
18. In Dr. Shah Faesal & Others v. Union of India & Another {(2020) 4
SCC 1}, a Constitution Bench of the Apex Court observed as under:
"17. This Court's jurisprudence has shown that usually
the Courts do not overrule the established precedents
unless there is a social, constitutional or economic
change mandating such a development. The numbers
themselves speak of restraint and the value this Court
attaches to the doctrine of precedent. This Court regards
the use of precedent as indispensable bedrock upon
which this Court renders justice. The use of such
precedents, to some extent, creates certainty upon which
individuals can rely and conduct their affairs. It also
creates a basis for the development of the rule of law. As
the Chief Justice of the Supreme Court of the United
States, John Roberts observed during his Senate
confirmation hearing, "It is a jolt to the legal system when
you overrule a precedent. Precedent plays an important
role in promoting stability and even handedness."
{Congressional Record - Senate, Vol. 156, Pt. 7, 10018
(7-6-2010)}
18. Doctrine of precedents and stare decisis are the core
values of our legal system. They form the tools which
further the goal of certainty, stability and continuity in our
legal system. Arguably, judges owe a duty to the concept
of certainty of law, therefore they often justify their
holdings by relying upon the established tenets of law.
19. When a decision is rendered by this Court, it acquires
a reliance interest and the society organizes itself based
on the present legal order. When substantial judicial time
and resources are spent on references, the same should
not be made in a casual or cavalier manner. It is only
when a proposition is contradicted by a subsequent
judgment of the same Bench, or it is shown that the
proposition laid down has become unworkable or contrary
to a well established principle, that a reference will be
made to a larger Bench. In this context, a five Judge
Bench of this Court in Chandra Prakash v. State of U.P.
{(2002) 4 SCC 234}, after considering series of earlier
ruling reiterated that: (SCC p. 245, para 22)
"22. ... The doctrine of binding precedent is of
utmost importance in the administration of our judicial
system. It promotes certainty and consistency in
judicial decisions. Judicial consistency promotes
confidence in the system, therefore, there is this need
for consistency in the enunciation of legal principles
in the decisions of this Court."
xxx xxx xxx
28. The rule of per incuriam has been developed as an
exception to the doctrine of judicial precedent. Literally, it
means a judgment passed in ignorance of a relevant
statute or any other binding authority [see Young v. Bristol
Aeroplane Co. Ltd., {1944 KB 718 (CA)}. The aforesaid
rule is well elucidated in Halsbury's Laws of England in
the following manner {3rd Edn. Vol. 22, Para 1687, pp.
799-800}:
"1687. ... the court is not bound to follow a
decision of its own if given per incuriam. A
decision is given per incuriam when the court has
acted in ignorance of a previous decision of its
own or of a court of a coordinate jurisdiction which
covered the case before it, or when it has acted in
ignorance of a decision of the House of Lords. In
the former case it must decide which decision to
follow, and in the latter it is bound by the decision
of the House of Lords.
29. In this context of the precedential value of a judgment
rendered per incuriam, the opinion of Venkatachaliah, J. in
the seven judge Bench decision of A.R. Antulay v. R.S.
Nayak, {(1988) 2 SCC 602} assumes great relevance:
(SCC p. 716, para 183)
"183. But the point is that the circumstance that a
decision is reached per incuriam, merely serves to
denude the decision of its precedent value. Such a
decision would not be binding as a judicial
precedent. A co-ordinate Bench can disagree with
it and decline to follow it. A larger Bench can
overrule such decision. When a previous decision
is so overruled it does not happen -- nor has the
overruling Bench any jurisdiction so to do -- that
the finality of the operative order, inter partes, in
the previous decision is overturned. In this context
the word 'decision' means only the reason for the
previous order and not the operative order in the
previous decision, binding inter partes. ...Can
such a decision be characterised as one reached
per incuriam? Indeed, Ranganath Misra, J. says
this on the point: (para 105)
"Overruling when made by a larger Bench of an
earlier decision of a smaller one is intended to
take away the precedent value of the decision
without effecting the binding effect of the decision
in the particular case. Antulay, therefore, is not
entitled to take advantage of the matter being
before a larger Bench."
30. The counsel arguing against the reference have
asserted that the rule of per incuriam is limited in its
application and is contextual in nature. They further
contend that there needs to be specific contrary
observations which were laid without considering the
relevant decisions on the point, in which case alone the
principle of per incuriam applies.
31. Therefore, the pertinent question before us is
regarding the application of the rule of per incuriam. This
Court while deciding the Pranay Sethi case referred to an
earlier decision rendered by a two judge Bench in
Sundeep Kumar Bafna v. State of Maharashtra, {(2014)
16 SCC 623}, wherein this Court emphasized upon the
relevance and the applicability of the aforesaid rule:
(Sundeep Kumar Bafna case, SCC p. 642, para 19)
"19. It cannot be overemphasized that the discipline
demanded by a precedent or the disqualification or
diminution of a decision on the application of the
per incuriam rule is of great importance, since
without it, certainty of law, consistency of rulings
and comity of courts would become a costly
casualty. A decision or judgment can be per
incuriam any provision in a statute, rule or
regulation, which was not brought to the notice of
the court. A decision or judgment can also be per
incuriam if it is not possible to reconcile its ratio
with that of a previously pronounced judgment of a
co-equal or larger Bench; or if the decision of a
High Court is not in consonance with the views of
this Court. It must immediately be clarified that the
per incuriam rule is strictly and correctly applicable
to the ratio decidendi and not to obiter dicta.
32. The view that the subsequent decision shall be
declared per incuriam only if there exists a conflict in the
ratio decidendi of the pertinent judgments was also taken
by a five-Judge Bench decision of this Court in Punjab
Land Development and Reclamation Corpn. Ltd. v.
Labour Court (1990) 3 SCC 682 (SCC pp. 706-07, para
43):
"43. As regards the judgments of the Supreme
Court allegedly rendered in ignorance of a relevant
constitutional provision or other statutory provisions
on the subjects covered by them, it is true that the
Supreme Court may not be said to "declare the law"
on those subjects if the relevant provisions were not
really present to its mind. But in this case Sections
25G and 25H were not directly attracted and even if
they could be said to have been attracted in laying
down the major premise, they were to be
interpreted consistently with the subject or context.
The problem of judgment per incuriam when
actually arises, should present no difficulty as this
Court can lay down the law afresh, if two or more of
its earlier judgments cannot stand together.
19. The judgment passed by the Hon'ble Apex Court in the matter of
S.K.Bhatia (supra) and Subhash Chandra (supra) was not brought to
the notice of the co-ordinate Division Bench of this Court while
considering the case of Dr. Sandeep Jain (supra), and further while
exercising powers conferred under Section 96 of the Act of 1988, the
State Government has framed Rule 76-B(16) of the Rules of 1994
which cannot be said to be beyond the statutory competence of the
State Government in view of the aforesaid two judgments of the Hon'ble
Supreme Court in S.K.Bhatia (supra) and Subhash Chandra (supra).
The judgment passed by the co-ordinate Division Bench of this Court in
Dr. Sandeep Jain (supra), was on different footing as in the said case,
the Central Motor Vehicle Rules was amended by the State Government
which the State Government could not do, and as such, it was declared
ultra vires under Section 59 of the Act of 1988. In Dr. Sandeep Jain
(supra), Rule 70-A was added to the Rules of 1994 whereas, the present
case relates to Rule 76-B(16) which deals with a particular type of
vehicle.
20. The amendment which is sought to be challenged in these petitions, has
been brought in exercise of the powers conferred by Section 96 of the
Act of 1988. Section 96 is in respect of the power of the State
Government to make rules for the purpose Chapter -V which is with
relation to control of transport vehicles. The petitioners, which are
educational societies, run various schools and colleges and they use
buses for transporting the students/children. It is important that the
condition of the buses must be such so that it may not cause any kind of
threat to the students/children while they are being plied on the roads.
The State Government, in its wisdom has thought it appropriate not to
allow such buses to be used as school bus which are more than 12
years old. If the State Government is concerned with the safety of the
students/children, it cannot be said that it has caused any infringement
of any of the rights of any individual. There is nothing in Section 96(2)
(xxxiii) of the Act of 1988 which bars the State Government from laying
down the conditions as has been laid in Rule 76-B(16) of the Rules of
1994.The question referred by the learned Division Bench already
stands answered in view of the ratio laid down by the Apex Court in
S.K.Bhatia (supra) and Subhash Chandra (supra). As such, we are of
the considered opinion that the reference made to this Bench by the
learned Division Bench deserves to be answered in affirmative. It is
answered accordingly.
21. Let these matters be listed before the Bench having the roster.
Sd/- Sd/- Sd/-
(Bibhu Datta Guru) (Ravindra Kumar Agrawal) (Ramesh Sinha)
JUDGE JUDGE CHIEF JUSTICE
Amit
AMIT
KUMAR
DUBEY
