Delhi Pradesh Taxi Union And Anr. vs Airport Authority Of India And ...
2003 Latest Caselaw 620 Del

JUDGMENT

S.K. Mahajan, J.

1. This order will dispose of the application of respondent No. 8 for review of the order dated 2nd May, 2002, whereby the writ petition was disposed of by the Court. A few facts relevant for deciding this application are:-

The petitioner, a Union of Taxi Operators, having their area of operation mainly at the IGI Airport, New Delhi, had filed the writ petition for issuing a direction to the Airport Authority to ensure that all the vehicles of respondent No. 8, registration numbers of which were given in the writ petition being plied between IGI Airport and Amritsar, do not carry passengers against the individually issued tickets and to ensure that they adhere to the mandatory requirements of the Motor Vehicles Act, 1988 and the Rules framed there under. The writ petition was filed on the ground that the vehicles for which permit had been granted to respondent No. 8 could be plied as contract carriages and not as stage carriages and since under Section 2(7) of the Motor Vehicles Act (in short referred to as `the Act') contract carriage could be engaged as a whole for the carriage of passengers mentioned therein, the said respondent could not issue tickets to individual passengers thereby violating the provisions of the Act nor the said respondent could pick up any passenger or drop any passenger en route between New Delhi and Amritsar. When the matter came up for hearing on 2nd May, 2002, this Court observed that it was not denied by any of the parties appearing in the case that the vehicle for which permit was granted to respondent No. 8 could be plied only as a contract carriage and thus the carrying of individual passengers by the said respondent @ Rs. 550/- per person from the IGI Airport to Amritsar was in violation of the provisions of the Motor Vehicle Act. The Court also noted the statement of counsel for respondent No. 8 that the said respondent will not entertain individual passengers but it will carry passengers from IGI Airport to Amritsar i.e. from one point to another and the vehicle will be used only as a contract carriage and they would neither pick up any passenger nor drop any passenger en route. On that statement being made, the Court observed that in view of the statement of counsel for respondent No. 8, nothing survived in the writ petition except that in case of any violation of the conditions of the tourist permit or the provisions of the Act and the Rules framed there under by respondent No. 8, the other respondents will take appropriate action against respondent No. 8 in accordance with law.

2. The relevant part of the order dated 2nd May, 2002 reads as under:-

"It is not denied by any of the parties appearing in this case that the vehicle for which the permit has been granted to respondent No. 8 can be plied only as a contract carriage under the provisions of the Act and the Rules. Under Section 2(7) of the Act, "contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether express or implied, for the sue 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        stop in to pick up or set down passengers nor 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;    
 

3. It is thus clear from a reading of Section 2(7) of the Act that the contract carriage can be engaged as a whole under a contract and individual passengers cannot be permitted to engage such vehicle for which permit has been granted as a contract carriage. On 4.4.2001, respondent No. 1 had issued a letter to the SHO, Terminal II, IGI Airport that respondent No. 8 had been awarded the contract for providing inter state luxury services from IGI Airport to Amritsar @ Rs. 550/- per person one side to facilitate the international passenger. From the reading of this letter, it appears that the buses of respondent No. 8 were being engaged by the individual passengers @ Rs. 550/- per person. This, in my view, is clearly in violation of the provisions of the Motor Vehicles Act. The letter dated 4.4.2001, issued by respondent No. 1 being clearly against the provisions of the Act, cannot be given effect to. On 12.3.2001, a statement was made by counsel for respondent No. 8 that it was running its business as per the terms and conditions of the permit granted to it by the State Transport Authority and also as per the terms and conditions of the license granted by the Airport Authority. In para 13 of the counter affidavit, respondent No. 8 has stated that it has not been entertaining individual passengers nor is misusing counter No. 8 given to it by the Airport Authority for entertaining individual passengers. Counsel for respondent No. 8 today states that not only that respondent No. 8 will not entertain individual passengers but it will also carry passengers from International Airport to Amritsar Airport ie from one point to another and that the vehicles will be used only as contract carriages and they will not either pick up any passenger or drop any passenger en route.

4. After this order was passed, the present application for review came to be filed by respondent No. 8. Along with the application an affidavit of the advocate who was appearing on behalf of respondent No. 8 on 2nd May, 2002, when the writ petition was disposed of, was also filed and it was submitted by the counsel in his affidavit that on 2nd May, 2002, when the petition was heard by the Court, he had not conceded that respondent No. 8 would ply its buses only as a contract carriage and as such the statement was not based on any of the submissions filed on behalf of respondent No. 8. It was also submitted in the affidavit that the deponent inadvertently omitted to bring to the notice of the Court the provisions of the Motor Vehicles (All India Permit for Tourist Transport Operators) Rules, 1993 (in short referred to as `the 1993 Rules) which was a bona fide and inadvertent error as was borne out by the counter affidavit on behalf of respondent No. 8. It was submitted that under the aforesaid Rules respondent No. 8 was entitled to entertain individual passengers and it was not necessary that the vehicle should be used only as a contract carriage. On such affidavit being filed, the Court issued notice of the application to the non-applicants and in the meantime, stayed the operation of the order dated 2nd May, 2002 insofar as the same related to respondent No. 8. Learned counsel for the petitioner has raised a preliminary objection to the maintainability of the application for review on the ground that firstly the order dated 2nd May, 2002, was passed with the consent of the parties and the same, therefore, cannot be reviewed and secondly there was neither any error on the face of the order nor there was any sufficient reason for reviewing the same. For this learned counsel has placed reliance upon the judgment of the Supreme Court reported as Parsion Devi and others Versus Sumitri Devi and others . It is submitted that by way of the review application the attempt on the part of the respondent is to re-argue the matter which is not the scope of order 47 Rule 1 of the CPC. It is submitted that even assuming the order was erroneous, the remedy available to respondent No. 8 was to file an appeal against the order but the order being erroneous cannot be a ground for reviewing the same.

5. In Parsion Devi and others Versus Sumitri Devi and others (supra), it was held that under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there was a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1CPC. It is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it was held, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".

6. While it is true that in the exercise of its power under Order 47 Rule 1 CPC, the Court cannot sit as an Appellate Court over its own decision so as to rehear and correct a decision which it feels was erroneous. However, in my opinion, if the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist, the Court is not precluded from rectifying the error in the judgment. The Supreme Court in S. Nagaraj & Ors. Versus State of Karnataka and Another while interpreting the powers of the Court to review its order has held that a review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even Statutes lean strongly in favor of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. It was held that even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the Court culled out such power to avoid abuse of process or miscarriage of justice. Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. It was held that justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. The Rule of stare decisis is adhered for consistency but it is not an inflexible rule in Administrative law as in Public Law. Even the law bends before justice and if the Court finds that the order was passed under the mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Some of the observations of the Supreme Court culling out the powers to avoid abuse of process of justice or miscarriage of justice are as under :-

"Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decision is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (R.M. Sahai, J) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistances due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue.

19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Court and even the statutes lean strongly in favor of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when thee was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithvi Chand lal Choudhury Versus Sukhraj Rai and others , the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajinder Narain Rae Versus Bijai Govind Singh 1 Moo PC 117 that an order made by the Court was final and could not be altered.

"nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have, however, gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies."

7. Basis for exercise of the power was stated in the same decision as under:-

"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame the party has not been heard and an order has been inadvertently made as if the party had been heard."

8. Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed and substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, `for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse the process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.

9. It is thus clear that in case the order is based on a wrong assumption of law, the Court is not precluded from rectifying the error in its order if it is satisfied that it is necessary to do so for the sake of justice. In the present case admittedly it was not brought to the notice of the Court at the time of hearing on May 2nd, 2002 that the provisions of Rules 82 to 85A of the 1989 Rules were not applicable to authorisation granted under the 1993 Rules. The 1993 Rules were also not brought to the notice of the Court. If the 1993 Rules have any bearing on the case and if because of exclusion of Rules 82 to 85A of the 1989 Rules, respondent No. 8 can ply its vehicles in the manner it was plying, in my view, it cannot be said that the application for review will not be maintainable. This Court is, therefore, required to examine the effect of 1993 Rules in this case.

10. Under the Act commercial passenger vehicles have been defined as contract carriages, stage carriages, omni buses and tourist vehicles. For the purposes of this case we are concerned with the vehicles used as contract carriage, the stage carriage and the tourist vehicle. Under the Motor Vehicles Act, contract carriage, stage carriage and tourist vehicle have been defined as under:-

Section 2(7)

- `contract carriage' means a motor vehicle which carriers 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;

Section 2(40) - `Stage Carriage' means 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;

11. Section 2(43) - `tourist vehicle' means a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf

12. `Stage carriage' is thus defined under Section 2(40) to mean the 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. It is thus clear that a `contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward under the contract for use of such vehicle as whole for the carriage of passengers mentioned therein either on time basis or from one point to another. A motor vehicle having a `stage carriage' permit can carry individual passengers for hire or reward paid separately by them for the whole journey or for stages of the journey. The basic difference between a `stage carriage' and the `contract carriage' is that while in the case of `contract carriage' the vehicle has to be engaged as a whole under a contract, so as to carry passenger from one point to another, `stage carriage' can carry passengers from one point to another in stages of the journey or for the entire journey and can pick up and drop passengers en route. A `tourist vehicle' defined under Section 2(43) of the Act means a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf. Section 72 of the Act provides for grant of stage carriage permit for a particular route or area specified in the application. Sections 73 and 74 of the Act provide for the grant of `contract carriage permit'. Section 88 provides for permits which are issued by the transport authority for use outside the region in which it is granted. The permit issued by a Regional Transport Authority of any one region is not 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 is not valid for another State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned. Under sub-Section (8) of Section 88 notwithstanding anything contained in sub-Section (1), but subject to any rules that may be made under the 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 Section 88 for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicles as a whole without stopping to pick up or set down along the line of route passengers not included in the contract. Under sub-Section (9) of Section 88 a permit in respect of tourist vehicles are granted for the whole of India or in such contiguous States not being less than three in number for which application is made by the owner of the tourist vehicle. Sub-Section (9) of Section 88 reads as under:-

"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 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 [clause 9d) of sub-section (1) of Section 87 and Section 89] shall, as far as may be, apply in relation to such permits".

13. Power to make Rules for issue of permit outside the State or tourist permits is given to the Central Government under sub-Section (14) of Section 88 of the Act. Sub-Section (14) of Section 88 of the Act reads as under:-

(a) the Central Government may make rules for carrying out the provisions of this Section.

(b) In particular, and without prejudice to the generality of the foregoing power, such rules may be provide for all or any of the following matters, namely:-

(i) the authorisation fee payable for the issue of a permit referred to in sub-sections (9) and (12);

(ii) the fixation of the laden weight of the motor vehicle;

(iii) the distinguishing particulars or marks to be carried or exhibited in or on the motor vehicle;

(iv) the colour or colours in which the motor vehicle is to be painted;

(v) such other matters as the appropriate authority shall consider in granting a national permit.

Explanation : In this Section-

(a) "appropriate authority", in relation to a national permit, means the authority which is authorised under this Act to grant a goods carriage permit;

(b) "authorisation fee" means the annual fee, not exceeding one thousand rupees, which may be charged by the appropriate authority of a State to enable a motor vehicle, covered by the permit referred to in sub-Sections (9) and (12) to be used in other States subject to the payment of taxes or fees, if any, levied by the States concerned;

(c) national permit" means a permit granted by the appropriate authority to goods carriages to operate throughout the territory of India or in such contiguous States not being less than four 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.

14. A reading of Section 2(7) along with Sections 74 and 88(9) of the Act shows that the tourist vehicle to which a permit is issued under sub-Section (9) of Section 88 can be used only as a `contract carriage' as defined in Section 2(7) of the Act. A tourist permit under Section 88(9) is granted under Chapter 4 of the Central Motor Vehicle Rules, 1989 (hereinafter referred to as `1989 Rules'). Under Rule 85 (1) of the Rules a permit holder is required to prepare in respect of each trip a list in triplicate of tourist passengers to be carried in the vehicle giving full particulars about the name, address and age of each passenger as also the starting point and the point of destination of the vehicle. Under Rule 85 (5) the permit holder or his authorised agent is required to issue a receipt to the hirer and under sub-Rule (9) the permit holder cannot operate the tourist vehicle as a `stage carriage'. Rule 85 of the 1989 Rules reads as under:-

85. Additional conditions of tourist permit.

15. The following shall be the additional conditions of every tourist permit granted to a tourist vehicle other than a motor cab under sub-section (9) of section 88, namely, -

(1) The permit holder shall cause to be prepared in respect of each trip a list in triplicate of tourist passengers to be carried in the vehicle, giving full particulars as under :-

(a) name of the passenger,

(b) address of the passenger,

(c) age of the passenger,

(d) starting point and the point of destination.

[(2) One copy of the list referred to in sub-rule (1) shall be carried in the tourist vehicle and shall be produced on demand by the officers authorised to demand production of documents by or under the provisions of the Act and the Rules, and the second copy shall be preserved by the permit holder.]

(3) The tourist vehicle shall either commence its journey, or end its journey circular or otherwise, in the home State, subject to the condition that the vehicle shall not remain outside the home State for a period of more than [three months]. The permit holder shall see that every return of the tourist vehicle to the home State is reported to the authority which issued the permit:

PROVIDED that where the contracted journey ends outside the home State, the vehicle shall not be offered for hire within that State or from that State to any other State except for the return journey to any point in the home State.

(4) The tourist vehicle may operate circular tours of places lying exclusively in the home State or in the home State and outside the State if such circular tours are in the list approved by the Tourist Department of the home State to visit places of tourist, historical or religious importance and the tour is duly advertised beforehand.

(5) The permit holder or his authorised agent shall issue a receipt to the hirer and the counterfoil of the same shall be kept available with him and produced on demand to the officers empowered to demand documents or under the Act.

(6) Tourist vehicle shall not be parked on any bus stand used by stage carriage permit and shall not operate from such stand.

(7) The tourist vehicle shall be painted in while colour with a blue ribbon of five centimetres width at the centre of the exterior of the body and the word "Tourist" shall be inserted on two sides of the vehicle within a circle of sixty centimeters diameter.

(8) The permit holder shall display in the front to of the tourist vehicle a board in yellow with letters in black with the inscription "Tourist permit valid in the State(s) of......" in English and Hindi and also, if he so prefers, in the regional language of the home State.

(9) The permit holder shall not operate the tourist vehicle as a stage carriage.

(10) The permit holder shall maintain a day-to-day logbook indicating the name and address of the permit holder and the registration mark of the vehicle, name and address of the driver with the particulars of his driving license and the starting and destination points of the journey with the time of departure and arrival and the name and address of the hirer.

(11) The permit holder shall furnish once in every 3 months the information contained in condition (10) to the State Transport Authority which granted the permit and the logbook shall be preserved for a period of 3 years and shall be made available to the said authority on demand along with the records referred to in conditions (2) and (4).

16. It is thus clear that a tourist vehicle to which a national permit has been granted to ply from one point to another is required to follow the conditions as mentioned in Rule 85 of the 1989 Rules and as already mentioned above such tourist vehicle can be operated only as a contract carriage and not otherwise. Sub Rule (5) of Rule 85 specifies that the permit holder shall issue a receipt to the hirer, which implies that the such vehicle cannot be engaged by more than one hirer. Contention of learned counsel for the respondent, however, is that as extreme problems were being faced by the tourists and the NRIs when they land at the International Airports and they were being harassed by unscrupulous persons for reaching their destination with minimum inconvenience and the tourist vehicles to which all India permits were granted under Rule 88 of the 1989 Rules could not carry individual passenger as the vehicle had to be engaged as a whole by one hirer, the legislature decided to legislate and bring in operation Statutory rules in the year 1993 with a view to get over that persistent problem. It is submitted that under Section 88(14) of the Act, the Central Government has the power to frame Rules for carrying out the provisions of Section 88 and in the exercise of such powers read with sub-Section (9) of Section 88 of the Act, the Central Government framed the Motor Vehicles (All India Permit for Tourist Transport Operators) Rules, 1993. It is submitted that under the 1993 Rules, the conditions prescribed in Rules 82 to 85A of the 1989 Rules were not to apply to the permits granted under the 1993 Rules. The contention of learned counsel for the respondent, therefore, is that as Rules 82 to 85A of the 1989 Rules do not apply to the vehicles who have been granted authorisation under the 1993 Rules, it was not mandatory for the operators to give the vehicle on hire as a whole but they could also carry individual passengers from one point to another in terms of the 1993 rules. Some of the 1993 Rules which are relevant for deciding this application read as under:-

1. Short title, extent, commencement and exemption (4) The conditions prescribed in rules 82 to 85A of the Central Motor Vehicles Rules, 1989 shall not apply to the permits granted under this scheme.

2. Definitions

(b) "authorisation certificate" means a certificate issued by an appropriate authority to a recognised tourist transport operator authorising him to operate throughout the territory of India or in such continuous States, not being less than three in number including the State in which the permit is issued, on recognised tourist circuits, as are specified in the All India permit for a tourist vehicle granted to him;

(g) "Tourist Transport Operator" means a company or an individual engaged in the business of promotion of tourism on tourist circuits, recognised by the Department of Tourism of the Government of India.

3. Authorisation certificate shall be issued only to a tourist transport operator recognised by the Department of Tourism of the Central Government.

9. Authorisation fee The fee for the issue of an authorisation certificate shall be Rs. 500 per annum and every application for the issue or renewal of the same shall be accompanied by a bank draft for the said amount in favor of the appropriate authority.

13. List of tourists A tourist vehicle, other than motor cab, plying on all India permit for tourist transport operator shall at all times carry a list of tourist passengers in respect of each trip, and the list shall be produced on demand by the officer authorised to demand production of documents by or under the Act, or the rules made there under.

17. The contention of respondent No. 8 is that since the said respondent has been recognised by the Central Government as a tourist operator and authorisation has been given to it under Rule 2(b) of the 1993 Rules, it is free to ply its vehicle without enforcement and applicability of the conditions imposed under Rules 82 to 85A of the 1989 Rules. It is submitted that in accordance with the Rules, respondent No. 8 was recognised as a tourist transport operator by a communication dated 20.12.2001, by the Ministry of Tourism and Culture, Department of Tourism, Government of India. It is also submitted that in view of the recognition granted to respondent No. 8 by the Government of India as tourist transport operators, the said respondent was considered and found fit for being awarded a counter at the IGI Airport for the facilities of the tourists and NRI passengers who were getting harassed at the International Airport on their landing for reaching their destination. It is submitted that the counter has been awarded to respondent No. 8 for a period of three years at a huge fee and respondent No. 8 is not only required to pay a sum of Rs. 1,66,100/- as royalty for getting that counter but is also required to pay a monthly rent of Rs. 3000/- for the counter. It is submitted that because of the authorisation given to respondent No. 8, it is entitled to pick up passengers from the IGI Airport to Amritsar at the rates fixed by the Airport Authority for each passenger. It is submitted that the 1993 Rules are complete code in itself and anything contrary thereto in the Act or the 1989 Rules would not be applicable to the said respondent. It is submitted that the provisions of Section 2(7) of the Act are not strictly applicable in the case of respondent No. 8 who has been granted authorisation under the 1993 Rules.

18. To a query of the Court whether the Rules could be contrary to the provisions of the Act, the contention of learned counsel for respondent No. 8 is that the definition of `tourist vehicle' under Section 2(43) that a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications "as may be prescribed in this behalf;"clearly means that the powers to prescribe conditions could be delegated to any other authority and the same could even be contrary to some of the provisions of the Act itself. Reliance has also been placed upon Sections 72 and 74 of the Act to contend that the grant of a stage carriage permit and a contract carriage permit was "subject to any Rules that may be made under the Act". It is submitted that as the Act clearly provides that the grant of permit under Sections 72 and 74 was subject to Rules to be framed under the Act, the Central Government by exercising powers under sub-Section (14) of Section 88 having framed the 1993 Rules, the authorisation to ply the tourist vehicle by respondent No. 8 would only be subject to the 1993 Rules and not in any other manner. It is submitted that in such cases the Rules must prevail over the Statute and cannot be struck down on the ground that the `Rule' cannot override the provisions of the Act. For this reliance is placed by learned counsel for the respondent upon the judgments of the Supreme Court reported as M/s Bundelkhand Motor Transport Company Versus Behari Lal Chaurasia and another, , and Punjab Sikh Regular Motor Service, Moudhapara, Raipur Versus Regional Transport Authority . Reliance is also placed upon the judgment of Rajasthan High Court reported as M/s Srinath Travel Agency Versus State of Rajasthan . It is, therefore, submitted that as the vehicles belonging to respondent No. 8 are being plied in accordance with 1993 Rules even assuming any concession was made by the counsel on behalf of the said respondent on 2nd May, 2002 when the matter was decided by this Court the same would not be binding on the said respondent as it was made by inadvertent mistaken impression of law and for this reliance is placed upon the judgment of the Supreme Court reported as Central Council For Research in Ayurveda and Sidda Versus Dr. K. Santhakumari ......

19. Mr. Aruneshwar Gupta, learned counsel appearing on behalf of respondent No. 1 has supported the stand taken by Mr. Sethi, advocate appearing on behalf of respondent No. 8. It is submitted by Mr. Gupta that with a view to avoid harassment to tourists and NRI passengers at the International airport on their landing for reaching the destination, the airport authority has provided a counter to respondent No. 8 and is charging a large sum as royalty besides the monthly rent. It is submitted by him that if respondent No. 8 is not permitted to carry passengers from airport to their destination not only the whole purpose of granting authorisation under 1993 Rules would be defeated but some of the members of the petitioners who are fleecing the tourists and NRI passengers on their landing at the International airport would succeed in their object thereby frustrating the attempts of the respondents to streamline the entire system. Mrs. Ahlawat, learned advocate appearing on behalf of the Director of Transport also supports the case set up by respondent No. 8. She submits that the 1993 Rules were not brought to the notice of the Court when order dated 2nd May, 2002 was passed by this Court. It is submitted that in case the 1993 Rules are also to be read in a manner to mean that the vehicle has to be engaged as a whole and individual passengers cannot be carried from the airport to their destination, there would not be any difference between 1989 and 1993 Rules and the whole purpose of framing 1993 rules may be defeated. It is submitted by her that the very fact that the 1993 Rules provide that Rules 82 to 85A of the 1989 rules will not apply to vehicles which have been authorised to ply under the 1993 Rules clearly show that the authorisation given by the 1993 Rules may permit the tourist vehicles to deviate from some of the restrictions imposed by 1989 rules.

20. The contention of Mr. Parekh, learned senior advocate appearing on behalf of the petitioner, however, is that the order dated 2nd May, 2002 was passed on the correct interpretation of the provisions of the Act and the rules framed there under. It is submitted that since the tourist vehicle to which authorisation is granted under the 1993 Rules continue to be a contract carriage, the vehicle cannot be engaged by individual passengers and has to be engaged as a whole. It is submitted that the order dated 2nd May, 2002, was not passed on a concession given by the counsel but it was based on the interpretation of the Act and the Rules framed there under. He has placed reliance upon the judgment of the Supreme Court in Brijender Kumar Chaudhary Versus State of U.P. to contend that a contract carriage cannot be used for carrying individual passengers but the same has necessarily to be engaged as a whole. He submits that there is no error in the order dated 2nd May, 2002, passed by this Court which may require to be reviewed on the application of the petitioner.

21. The short point, therefore, to be considered is what is the effect of the Rules 82 to 85A of the 1989 Rules not being applicable to the vehicles for which authorisation has been granted under the 1993 Rules. The other question which may have to be considered is when the Act provides for engaging the vehicle as a whole can the Rules provide to the contrary.

22. On one question there is no dispute between the parties I.e. a vehicle which has been granted authorisation under the 1993 Rules cannot ply as a stage carriage meaning thereby that it cannot be engaged for stages of the journey. The vehicle, therefore, has to be engaged for the entire journey from one point to another. The only point of controversy between the parties is whether it has to be engaged as a whole from one point to another or whether the same can be engaged by different persons by paying different fares for the same journey. As already mentioned above while the case of the applicant/ respondent No. 8 is that the vehicle can be engaged by individual passengers by payment of individual fare, the case of the petitioner is that the vehicle has to be engaged as a whole by one person and it cannot be engaged by different persons by paying different rates.

23. A contract carriage permit is granted under Section 74 of the Act. Section 2(43) of the Act 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 that behalf. A contract carriage, as already mentioned above, is defined in Section 2(7) of the Act to mean a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract for the use of such vehicle as a whole for carriage from one point to another. Under Section 88 of the Act permit granted in one region or State can be validated for another region or State. Under Section 88(9) notwithstanding anything contained in sub-Section (1) but subject to any Rules that may be made under sub-Section (14) for purposes of promoting tourism, the Transport Authority can grant permit in respect of tourist vehicles valid for the whole of India or in such contiguous States not being less than three in number as may be specified in the permit in accordance with the choice indicated in the application and the provisions of Sections 73 and 74 etc. shall, as far as may be, apply in relation to said permits. Under Section 88(14) Central Government has been conferred powers to make Rules for carrying out provisions of the Act. Sections 88(9) and 88(14) of the Act read as under :-

(9) 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 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 [clause (d) of sub-section (1) of section 87 and section 89] shall, as far as may be, apply in relation to such permits.

(14) (a) The Central Government may make rules for carrying out the provisions of this section.

(b) In particular, any without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(i) the authorisation fee payable of the issue of a permit referred to in sub-section (9) and (12);

(ii) the fixation of the laden weight of the motor vehicle;

(iii) the distinguishing particulars or marks to be carried or exhibited in or on the motor vehicle;

(iv) the colour or colours in which the motor vehicle is to be painted;

(v) such other matters as the appropriate authority shall consider in granting a national permit.

24. Section 88(9), therefore, provides that the permit granted to a tourist vehicle for Inter State Carriage may be subject to any Rules that may be made by Central Government under sub-Section (14). It is by virtue of the powers given under sub-Section (14) that both the 1989 as well as the 1993 Rules were framed. In view of the fact that permit is granted under the Rules that may be framed by the Central Government can it be said that the Rules can override the Act and if the Act provides that the vehicle has to be engaged as a whole can the Rules provide otherwise. The normal Rule of interpretation is that the Rules cannot overwrite the provisions of the Act and if a Rule is contrary to the provisions of the Act, such rule may have to be held to be ultra vires the Act. However, in Punjab Sikh Regular Motor Service, Moudhapara, Raipur Versus Regional Transport Authority, Raipur and another it was held by the Supreme Court that the legislature has by providing in the opening para of sub-Section (1) of Section 63 of the Motor Vehicles Act "as may be otherwise provided" made the provisions subject to the rules framed by the State Government under Section 68 of the Motor Vehicles Act, 1939. According to the Supreme Court the provisions of Rule 63, therefore, must supersede the directions contained in Section 63(1) of the Statute and the expression `may" in Rule 63 in the context and the language of the rule though permissive in form must be held to be obligatory. The exercise of such power of renewal depends not upon the discretion of the authority but upon the proof of the particular case out of which such power arises. It was held that "enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right." In another judgment reported as Bundelkhand Motor Transport Company Versus Behari Lal Chauraisa it was held that Rule 63 of the rules providing for counter signing of the permit by the Regional Transport Authority would prevail over the direction of the Statute. The observations of the Supreme Court that the Rules must prevail over the directions of the Statute were as under :

"The Legislature has by providing in the opening part of sub-section (1) "Except as may be otherwise prescribed" made the provision subject to the rules framed under S. 68, and a rule conferring authority to counter-sign the permit in so far as it relates to another region upon the Authority who issues the permit is made. The validity of a section which is made subject to the provisions of the rules to be framed by apiece of delegated egislation is not challenged before us. Rule 63 must, therefore, prevail over the direction of the statute. There is no substance in the contention raised by counsel for the appellant that the State Government had no power to frame R. 63. Power to frame rules for carrying into effect the provisions of Ch. IV is expressly granted to the State Government by S. 68, and the exercise of that power, if it be utilised for the purpose of carrying into effect the provisions of the Act, is not subject to any other implied limitations."

25. It is in this background that we have to consider as to what is the effect of Rules 82 to 85A of the 1989 rules being not applicable to vehicles authorised under the 1993 rules and whether the tourist vehicle to which authorisation has been granted under the 1993 rules can be permitted to carry individual from one point to another. Though, Rules 82 to 85A of 1989 Rules have not been made applicable to the vehicles which have been authorised to ply under the 1993 Rule, however, for the purposes of the present case, this Court is concerned only with the conditions imposed on a tourist vehicle by Rule 85 of the 1989 Rules. Besides other conditions, Rule 85 also provides that the permit holder shall cause to be prepared in respect of each trip a list in triplicate of tourist passengers to be carried in the vehicle giving their full particulars such as the name, address, age and starting point and point of destination of each passenger. It also provides under Rule 85 (5) that the permit holder or his authorised agent shall issue a receipt to the hirer and the counter foil of the same shall be kept available with him and produced on demand to the officers empowered to demand documents by or under the Act. Rule 85 (5) is in conformity with Section 2(7) of the Act which defines a `contact carriage' to mean a motor vehicle which carries passengers for hire or reward and is engaged under a contract for the use of such a vehicle as a whole. Since a contract carriage under Section 2(7) could be engaged as a whole, Rule 85 (5) provides for issue of a receipt to the hirer who engages the vehicle in terms of Section 2(7). While framing Rule 85 (5), the rule making authority was conscious of the provisions of Section 2(7) of the Act that the vehicle could only be engaged as a whole under a contract for carrying passengers from one point to another on an agreed rate or sum and have, therefore, consciously provided in the Rules that the receipt of such engagement will be issued to the hirer. By using the word `hirer' the rule making authority has consciously meant that the vehicle can be engaged by one person under a contract or on a fixed or agreed sum for carriage of passengers from one point to another and not by individual passengers. While Rule 85 (1) and (5) of the 1989 Rules provide for a list of the passengers to be prepared giving their names, address, age etc and a receipt to be issued to the hirer who engages the vehicle under the contract, 1993 Rules only provide that the tourist vehicle shall carry a list of tourist passengers in respect of each trip. While framing 1993 Rules, the rule making authority has avoided to include the word `hirer' in the rules as has been done in the 1989 Rules. The conscious omission of the word `hirer' from the 1993 Rules would imply that a tourist vehicle which has been authorised to ply under the 1993 Rules could carry tourist passengers from one point to another and it is not necessary that the vehicle should be engaged as a whole by one person for carrying the passengers from one point to another. I am in agreement with learned counsel for the respondents that in case conditions mentioned in Rule 85 of the 1989 Rules were made applicable to the tourist vehicle authorised to ply under the 1993 Rules, the whole purpose of framing the 1993 Rules would be frustrated. Moreover, once the Central Government while framing 1993 Rules has provided that the conditions prescribed in Rules 82 to 85A of the 1989 Rules would not apply to the authorisation granted under the 1993 Rules a meaning has to be given to the same. In case Rule 85 is to apply even to tourist vehicles authorised under the 1993 Rules then Rule 1 (4) of the 1993 Rules prescribing that the conditions prescribed in Rules 82 to 85A of the 1989 Rules shall not apply, becomes redundant. Non-applicability of Rule 85 of the 1989 Rules to the tourist vehicle authorised under 1993 Rules means that the tourist vehicle can carry individual passengers from one point to their destination. That interpretation may to some extent be contrary to Section 2(7) of the Act which provides for engaging the vehicle as a whole under a contract for carrying passengers from one point to another on a fixed sum but in view of Section 88(9) of the Act providing that notwithstanding anything contained in sub-Section (1) but subject to any rules that may be made by the Central Government under sub-Section (14) the Transport Authority may for the purpose of promoting tourism, grant permits in respect of tourist vehicle and the provisions of Sections 73 and 74 etc. shall, as far as may be, apply in relation to such permits has made the provisions subject to rules framed by the Central Government and in view of the judgment of the Supreme Court in Punjab Sikh Regular Motor Service, Moudhapara, Raipur Versus Regional Transport Authority, Raipur and another (supra) the permit having been made subject to Rules in terms of Section 88(9) of the Act, the Rules must override the provisions of the Statute.

26. While, therefore, agreeing with the respondents that a tourist vehicle to which an authorisation has been granted under the 1993 Rules can ply its vehicles in terms of the conditions of the permits granted to it and also in terms of the authorisation given and Rules 82 to 85 of the 1989 Rules will not be applicable to said vehicles, however, this will not in any way authorise respondent No. 8 to use the said vehicle as a stage carriage and only relaxation to which they may be entitled is that the vehicle plying under the 1993 Rules may not be engaged as a whole under a contract for a fixed sum and the said respondent would be free to entertain individual passengers for carriage from Delhi Airport to their destination by charging the tariff fixed by the Airport Authority of India and without in any manner stopping en route.

27. I, accordingly, allow this application and modify the order dated May 2nd, 2002 and direct that respondent No. 8 would be free to run its vehicles as per terms and conditions of the authorisation granted to it under the 1993 Rules and in terms of the authority given to it by the Airport Authority. While respondent No. 8 would be at liberty to entertain individual passengers for carriage from one point to another in accordance with the authorisation, they will not in any manner use the same as a stage carriage and will not pick up and drop any passenger en route. With these observations the application stands disposed of with no order as to costs.