(1) These eight writ petitions raise a common question of law, namely, whether Rules 189 and 190 of the A.P. Motor Vehicles Rules, 1964 made under Section 64 read with Section 68(2)(j) of the Motor Vehicles Act (4 of 1939) are ultra vires the powers of the Government and must therefore be struck down. Apart from this, in Writ Petition No. 749/65, there are certain other questions which require determination on the facts and merits of that particular case. It is therefore necessary to set out the facts in that writ petition.
(2) The petitioner therein is a transport operator in Chittoor District having 6 stage-carriage permits, to ply motor buses in Chittoor District. He has a well-equipped workshop and has been in the field as an operator of motor buses for 20 years. The Road Transport Authority called for applications for grant of a stage-carriage permit on the route Chittoor to Salem, which is a long distance route, by its notification No. 14992/A-1/62 pursuant to which 28 applications were filed, the petitioner being No. 16 of the applicants, and the 4th respondent is applicants Nos. 9 and 10. After notifying these applications under Sec. 57(3) of the Act, the matter was considered by the Regional Transport Authority, Chittoor, at its meeting held on 30-11-1963, and after evaluating the respective claims granted the permit to the petitioner, on the ground that he is an existing operator with a common sector for a distance of 72 miles for three of his buses from Kuppam, and had experience as transport operator for a great length of time. The claims of the 4th respondent K. Ramachandra Naidu, was negatived, principally on the ground that he gave two different addresses to claim higher marks and that he had no sector qualification.
Against these proceedings of the Road Transport Authority, Chittoor, 7 of the unsuccessful applicants, including the 4th respondent, preferred appeals to the Appellate Authority, Andhra Pradesh, Hyderabad. The Appellate Authority which considered the appeals at its meeting held on 23-11-1964, set aside the grant made in favour of the petitioner and allowed the appeal of the 4th respondent on the ground that he is a better operator than the petitioner. It is averred in the affidavit that the considerations which weighed with the Road Transport Authority in granting the permit to him were not taken into account by the appellate authority; nor was it taken into consideration that the 4th respondent entered the Transport filed only in 1954 and was granted more than 4, 5 permits, while the petitioner with his experience since over two decades was not granted any permit, that the 4th respondent is a resident of Tirupati while the petitioner is a resident of Chittoor and while the petitioner has a sector for 3 of his buses, the 4th respondent has no common sector on the date of the grant, and that there was stoppage of service of the buses of the 4th respondent on several occasions which showed that he cannot be an efficient operator.
(3) Against the proceedings of the Appellate Authority, revision petitions under Section 64-A of the Madras Amendment to the Motor Vehicles Act, were preferred, urging several grounds stated in the memorandum; but the Government, by its G.O. No. 1998 Home (Transport II) Department, dated 3-6-1965, rejected the revision petitions.
(4) In this, as well as in the other writ petitions, the common contentions urged are:
(1) The power to constitute an Appellate Authority under Section 64 read with Section 63(2)(j) of the Act, does not empower the Government to delegate to any authority the function of constituting that authority, which is in fact what has been done by virtue of Rules 189 and 190. In exercise of the powers conferred by these rules, the Chairman of the State Transport Authority constituted two appellate authorities, - for the Andhra area consisting of himself, the Commissioner of Police and a non-official member, and for the Telangama area consisting of himself, the Chief Engineer and a non-official member. It is, therefore, contended that the rules whereby the Chairman was empowered to constitute an appellate authority is ultra vires the power of the Government conferred on it under Section 64 read with Section 68(2)(j).
(2) At the time when the case of the petitioner was considered, the non-official member was not present. As such, the appellate authority cannot be said to have been properly constituted as it did not consist of 3 members as prescribed in Rule 189. Rule 190, which prescribes a quorum of 2, prescribes in authority of less than 3, and hence it is bad in law. Further, the principle of joint responsibility under Section 64 of the Act, which is inherent in an authority having plurality of members where all the members must act, is transgressed, there being on specific sanction by the Legislative of the functioning of a smaller body.
(5) I shall first deal with these two questions which are common to all the writ petitions, in considering which, it is necessary to examine the relevant provisions namely, Sections 64, 68(2)(j) of the Act and Rules 189 and 190. They read as follows:-
Section 64: 'Any person-
(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or
(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or
(c) aggrieved by the refusal to transfer the permit to the person succeeding on the death of the holder of a permit, or
(d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or
(e) aggrieved by the refusal of renewal of a permit, or
(f) being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or
(g) aggrieved by the refusal to grant permission under Sub-section (1) or Sub-section (2) of Section 59, or
(h) aggrieved by a reduction under Sub-section (1-A) of Section 60 in the number of vehicles or routes or area covered by a permit, or
(I) aggrieved by any other order which may be prescribed may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard.'
Section 68. '(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:-
(a) to (I) ............ ............ ...............
(j) the authorities to whom, the time within which and the manner in which appeals may be made;
x x x` x'
The word 'prescribed' used in Sections 64 and 68, read with Section 2(21) means prescribed by rules made under the Act. The State Government by virtue of these powers, made rules. Rules 189 and 190 are as follows:-
Rules 189: 'An appeal under Section 64 against an order of the Regional Transport Authority other than an order passed under Section 60, shall lie to the Authority (hereinafter referred to as the 'Appellate Authority') consisting of the Transport Commissioner as Chairman and two members nominated by him from among the members of the State Transport Authority, within thirty days of the date of receipt of the order appealed against:
Rule 190: 'The quorum for a meeting of the Appellate Authority shall be two:
Provided that no meeting shall be held in the absence of the Chairman.'
It may be noted that Rule 188 stated that an appeal under Section 64 against an order of the Regional Transport Authority passed under Section 60 shall lie to the Transport Commissioner within thirty days of the receipt of the order appealed against, while Rule 189 deals with appeals against the orders passed by the Road Transport Authority other than those under Section 60. It may also be noted that under Section 44 of the Act, the State Government has been empowered by notification in the official gazette to constitute State Transport Authority and Road Transport Authority to exercise and discharge the powers and functions specified in that Chapter, (viz., Chapter IV). Sub-section (2) of that section reads thus:
(2) 'A State Transport Authority or a Regional Transport Authority shall consist of a Chairman who has had judicial experience and such other officials and non-officials, not being less than two, as the State Government may think fit to appoint but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking, shall be appointed as or continue as a member of a State or Regional Transport Authority, and, if any person being a member of any such Authority acquires a financial interest in any transport under takings, he shall within four weeks of so doing, give notice in writing to the State Government of the acquisition of such interest and shall vacate office:
Sub-section (3) provides that the State Transport Authority shall give effect to any directions issued under Section 43, and shall exercise and discharge the powers and functions specified therein. Sub-section (4) provides that the State Transport Authority may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority, and the Regional Transport Authority in the discharge of its functions under the Act, has to give effect to and be guided by such directions. Sub-section (5) authorises the State Transport Authority and any Regional Transport Authority to delegate such of its powers and functions to such authority or person, if authorised by rules made under Section 68, and subject to such restrictions, limitations and conditions as may be prescribed by the said rules.
(6) It will be observed that the Government in exercise of the powers under Sections 64 and 68, constituted, under Rules 189, an Appellate Authority consisting of the Transport Commissioner and two members to be nominated by him from among the members of the State Transport Authority. In other words, the State Transport Authority has been adopted as the collegium from which the appellate authority has to be constituted, subject to two conditions, namely, that it should consist of three members, and one of them should be its Chairman. The question arises as to whether the Government should itself specify all the three members of the Appellate Authority, or could it specify one member investing him with power to choose the other two. In so far as one member of the Authority is concerned, it has specified the Chairman of the State Transport Authority, and no exception can be taken to this appointment. But there the agreement of the learned advocates for the petitioners and the learned Government Pleader ends. While the learned Government Pleader contends that when the Legislature empowered the Government to prescribe by rules an Appellate Authority, it is inherent in that power for the Government to prescribe that authority in whatever manner it pleases, so long as that power is not ambiguous or excessive. He contends that where the members to be appointed to constitute an Appellate Authority have been specified to be from among those constituting the State Transport Authority, there is no question of the Government exceeding the power conferred on it by the Statute. What the Government by the rule has done is to empower the Chairman to choose his colleagues. On the other hand, the learned advocates for the petitioners submit that when the Legislature in Section 68(2)(j) authorises the Government to prescribe the authorities to whom appeals may be made, it confers a duty to constitute the authority and not leave it to someone to constitute it. It is further contended that unless all the members of the Appellate Authority are specified, it cannot be said that the Government has constituted the Authority. Merely to indicate the procedure for constituting that authority does not absolve it of the duty to constitute that authority itself. Under Rule 189, in fact it is the Chairman of the State Transport Authority that constitutes the appellate authority and not the Government. Mr. Babul Reddy further contended that Sections 64 and 68 contemplate only one appellate authority before whom all appeals had to be presented against orders passed by the Regional Transport Authority, mentioned in (a) to (I) of Section 64. Further, he submits that the power to constitute is by notification, and the power is not to constitute but to prescribe authorities already in existence, such as the City Police Commissioner, etc. It should prescribe an already constituted authority as members of the appellate authority. Even assuming that it has such power, it is the Transport Commissioner who constitutes, which power he has not. To say that there is sufficient fetter and sufficient guidance is no answer.
(7) It may however be noted that neither Section 64 nor Section 68 refer to the constitution of any authority. It authorises the Government to prescribe the appellate authority, which means prescribe by rules, and hence it is contended by the learned Government Pleader as well as Srimati Amreswari, that when the State Government makes a rule by which an appellate authority can be constituted, it will be sufficient, and such a rule, as has been framed for the purpose, viz., Rule 189, is not beyond the power of the Government.
(8) The main contention of the petitioners is that a power delegated to a person or authority cannot be sub-delegated to another person, unless that power is also inherent in the delegation itself. As a general proposition, it is well-settled beyond any controversy, that the maxim 'delegatus non-potest delegare', makes sub-delegation unauthorised unless the person on whom the power is conferred is permitted to delegate, expressly or by necessary intendment. This maxim is of general applicability and is not merely confined to a particular sphere of activity, whether granted by an individual to another or conferred by a statute on some person or authority or on the executive. In each case, the nature of the terms of the power must be looked into in order to determine whether any sub-delegation was conferred or intended. The general rule of sub-delegation of statutory, powers has to be looked from the point of view whether the Legislature has conferred a mere administrative power, which generally is exercised by officials sub-ordinate to it, in its name, or whether it is legislative or a quasi-judicial power. In any case, unless the legislature permits sub-delegation in cases even where it is an administrative power, no sub-delegation can be inferred. The principle no doubt extends to legislative sphere and once this is accepted it will apply equally to administrative and legislative powers. Similarly, in certain cases power to sub-delegate is implied, one of which is where the delegation does not involve a matter of trust or discretion. It is also implied where it is necessary for the purposes of agency that it should be so implied. Bowstead's Digest of the Law of Agency, 11th Edn. (1951) P. 69, states the rule by saying that the power of sub-delegation will be implied in a situation.
'Where the authority conferred is of such a nature as to necessitate its execution wholly or in part by means of a deputy or sub-agent.'Sometimes the distinction between 'purely an administrative power' and 'legislative' or a 'quasi judicial power' would lead to certain difficulties. But as indicated by Dixon, J., in Yats v. Vegetable Seeds Committee, (1945) 72 Com. WLR 37, this distinction may not be as important in relation to exercise of statutory powers as it was previously thought to have been.
(9) The basis on which the principle of delegation rests is that a person who wishes to act through another confers a power on that other, who otherwise would have to do it himself. This does not however imply that the person so delegating parts with his power or his authority to another so as to denude himself of his rights, or to totally abdicate that power in favour of the other. Delegation of power in other words, could always be abrogated by the grantor at any time, or he could, if he so chooses, act himself to the exclusion of the agent or the person to whom he has delegated. It is therefore obvious that the person on whom the power is delegated can only act within the power granted to him and cannot authorise another or confer on another the powers conferred on him, because to do so would be acting beyond the ambit of the authority conferred to him. It is this inhibition to sub-delegate which is expressed in the maxim 'Delegates non potest delegare' - a delegate may not re-delegate, which is most frequently applied in matters of principal and agent. But it is not confined to this relationship alone; it applies to statutory powers also in relation to what is known as administrative law, i.e., the law relating to directions conferred by statute. In effect it applies to all persons who are empowered by statute to do anything and to authorities which are by statute empowered to exercise discretion affecting the rights and interests of the public. As pointed out by John Willis (in Vol. XXI (1943)-Canadian Bar Review, page 257 at p. 259):
'This rule of construction dealing with delegation is derived in part from the 'literal' rule of construction, in part from the political theory known as 'the rule of law' and in part from the presumption that the naming of a person to exercise some discretion indicates that he was deliberately selected because of some aptitude peculiar to himself. The literal rule of construction prescribes that nothing is to be added to a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express' to read in the word 'personally' adds nothing to the statute, to read in the words 'or any person authorised b it' does. The 'rule of law' says that, since the common law recognises no distinction between Government officials and private citizens, all being equal before the law, no official can justify interference with the common law rights of the citizen unless he can point to some statutory provisions which expressly or impliedly permits him to do so; to point to a provision justifying interference by A does not of course justify interference by B. The presumption that the person named was selected because of some aptitude peculiar to himself requires the authority named in the statute to use its own peculiar aptitude and forbids it to entrust its statutory discretion to another who may be less apt than it, unless it is clear from the circumstances that some reason other than its aptitude dictated the naming of it to exercise the discretion. Because, however, he courts will readily mould the literal words of the statute to such construction as will be best achieve its object; because they will, recognizing the facts of modern government, readily imply in an authority such powers as it would normally be expected to possess; because the presumption of deliberate selection, strong when applied to the case of a principal who appoints an agent or a testator who selects a trustee, wears thin when applied to a statute which authorizes some governmental authority, sometimes with a fictitious name such as 'Governor-in-council' or 'Minister of Justice', to exercise a discretion which everyone, even the legislature, knows will in fact be exercised by an unknown underling in the employment of the authority, the prima facie rule of delegatus non potest delegare will readily given way, like the principles on which it rests to slight indications of a contrary intent.'
If as stated above, the basis of the rule is the deliberate selection of the person as a delegate, the principle of delegatus non potest delegare, though applicable, has lesser efficacy and lesser rigour perhaps in construing the intendment of sub-delegation.
(10) Mr. Chowdhary has cited a number of cases, which on the terms of the power granted, have been construed as not authorising a sub-delegation. In Bartnard v. National Dock Labour Board, 1953-2 QB 18 the facts were these. By the Dock Workers (Regulation of Employment) Order 1947, the first defendants, the National Dock Labour Board, were required to delegate to local boards, composed of equal numbers of representatives of workers and employers all appropriate functions, including under clauses 15 and 16 of the order the operation of a disciplinary code. The London Dock Labour Board-a local board-purported to delegate those disciplinary functions to the port manager. In the events which happened, the port manager suspended the plaintiffs, registered dock workers, from work and pay. The plaintiffs appealed to the appeal tribunal set up under the order, but their appeals were dismissed. The appeal Tribunal had no power to impose but only to revise penalties imposed by the local board. McNair, J. Held that the local board had power to delegate its disciplinary functions to the port manager. On appeal, Denning, Singleton and Romer, L. JJ. Rejected the contention that the local the port manager on the ground that the power of suspension was an administrative and not a judicial function. It was suggested that the action of the local board in suspending a man was similar in character to the action of an employer in dismissing him. The contention was rejected and it was held that they were exercising judicial functions, just as much as the tribunals which were considered by the Court in Abbot v. Sultan, (1952) 1 KGB 189 and in Lee v. Showmen's Guild of Great Britain, (1952) 2 QB 329, the only difference being that those were domestic tribunals, and in the case before them it is a statutory one. Denning L. J. Said: 'While an administrative function Can. often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication.' The further contention that even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager was also repelled, for if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he has done. The effect of ratification is to make it equal to a prior command; but just as a prior command, in the shape of a delegation, would be useless, so also is a ratification. The other two Judges also delivered concurrent judgments. In Vine v. National Dock Labour Board, (1957) AC 488 the decision of the Court of Appeal that action taken by a delegated authority when there was no power to delegate went to the root of the jurisdiction and the circumstances entitled the Court, in its discretion, to grant a declaration, was approved. Lord Somervell of Harrow observed:
'In deciding whether a 'person' has power to delegate one has to consider the nature of the duty and the character of the person. Judicial authority normally cannot, of course, be delegated, though no one doubted in Arlidge's case, (1915) AC 120 at p. 512 that the Local Government Board, which consisted of the President, the Lord President of the Council, the Secretaries of State, the Lord Privy Seal and the Chancellor of the Exchequer (Local Government Board Act, 1871), could act by officials duly deputed for the purpose, whether or not the act to be done had judicial ingredients. There are, on the other hand, many administrative duties which cannot be delegated. Appointment to an office or position is plainly an administrative act. If under a statute a duty to appoint is placed on the holder of an office whether under the Crown or not, he would, normally, have no authority to delegate. He could take advice, or course, but he could not by a minute authorise someone else to make the appointment without further reference to him. I do not, therefore, find it necessary to consider what judicial requirements might be held implicit in the local board's proceedings under clause 16. I am however, clear that the discilipinary powers, whether 'judicial' or not, cannot be delegated.'
In Allingham v. Minister of Agriculture and Fisheries, 1948-1 All ER 780 Lord Goddard, C. J., - Humphrises and Pritchard, JJ. Concurring-was considering the validity of a conviction of the appellants by the justices for the county of Bedford of failing to comply with a direction made under Regulation 62 (1) of the Defence (General) Regulations 62 (1) of the Defence (General) Regulations, 1939 directing them to grow and harvest eight acres of sugar beet for the 1947 season on part of field numbered 412 on the ordnance survey map. The direction was given by the executive officer of the war agricultural executive committee, and the question is whether in the circumstances found by the justice, the order was one which the farmers, were bound to obey. Under the said regulation, the Minister of Agriculture is given power to 'give such directions with respect to the cultivation, management or use of land for agricultural purposes as he thinks necessary' for certain purposes.The direction is to be given by notice relating to the land specified therein served on the person by whom the direction shall be complied with. In that case was agricultural executive committee were made the agents or delegates of the Minister who delegate his powers to them, as he was entitled to do under the said regulation. The was agricultural executive committee came to the conclusion that eight acres of sugar beet should be grown by the appellants on a field to be named by their executive officer. In other words, they delegated to be executive officer the task of deciding the land which was to be the subject of the notice to he served. It was held that the committee could not delegate that which the Minister has to decide and which he was power to delegate to the committee to decide for him. Lord Gadded, C. J. Observed:
'If he has delegated, as he has, his power of making decisions to the executive committee, it is the executive committee that must make the decision and, on the ordinary principle of delegates non potent delegate, they cannot delegate their power to some other person or body.'
The contention of the appellants that they are entitled to have the decision of the executive committee and of no one else on this matter, was accepted. In Attorney General of Canada v. Shirley Kathleen Brent, 1956 SCR (Can) 318 the question was whether a citizen of the United States of American and did not have a Canadian domicile can be ordered to be deported by a Special Immigration Officer as unsuitable under Regulation 20 (4) made by the Governor in council exercises of the powers conferred by section 61 of the Immigration Act, which authorised the Governor in Council to make regulations respecting the prohibiting or limiting of admission of persons by reasons of nationality, citizenship, etc., enumerated in the list Under the Regulation the Governor in Council enacted that admission is prohibited 'whether in the opinion of a Special Inquiry Officer such person should not be admitted by reason of' the same enumerated list of matters that are found in Section 61 of the Act. It was held by the Court of Appeal that Regulation 200 is invalid because there was no power under the Governor in Council to delegate, as was done by the Regulation, his authority to immigration officers. It may be observed that section 61 authorises the Governor-in-Council to make regulations for carrying into effect the purposes and provisions of the Immigration Act, respecting:
'(g) the prohibiting or limiting of admission of persons by reason of-
(I) nationality, citizenship, ethnic group, occupation, class or geographical area of origin,
(ii) peculiar customs, habits, modes of life or methods of holding property,
(iii) unsuitability having regard to the climatic, economic, social industrial, education, labour, health or other conditions or requirements, existing, temporarily or otherwise in Canada or in the area or country from or through which such persons come to Canada, or
(iv) probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their admission.
The impugned order-in-council authorised the Special Inquiry Officer to prohibit admission to Canada, in respect of matters mentioned in items (ii) to (iv) in identical terms, without in fact making any regulations relevant to these named subject-matters or some of them as in the Governor-General in Council's own opinion was advisable. Those powers which were conferred on the Governor-General in Council were in turn conferred upon the Special Inquiry Officer, which was nothing but an unauthorised delegation.
(11) In all these cases the very nature of the power could not be construed as conferring a sub-delegation, either expressly or by intendment, and they do not ion any way assist me in construing the present power, except that the principles as I have already set out above, has been well-recognised.
(12) As stated earlier, it is a rule of construction whether the content of the powers delegated has within it the further power to re-delegated that power. In the present case the Government has been given the power to prescribe by rules not only the authority that should hear the appeals, but also the time withiin which and the manner in which the appeals should be made. The power to hear appeals is a judicial power and can only be conferred by a statute, in as much as, the right of appeal is a creature of statute. Section 68, which confers powers on State Governments to make rules for the purpose of carrying into effect the provisions of Chapter IV, and in particular under Section 68(2)(j), confers power to make rules with respect to the authorities to whom, the time within which and the manner in which appeals may be made, so that section 64 read with Section 68(2)(j) confers on the Government power to make rules prescribing any one authority or seveal authorities, if it so chooses to hear appeals. If may not, therefore, be said, as has been contended, that only one authority has to be prescribed to hear appeals. The power to prescribe the authorites is wide enough, not only to specify by rules the persons who constitute the appellate authority, but also the manner in which the authority can be constituted. In this case, under rules 189 and 190, the State Government and the members of the State Transport Authority from which the appellate authority should be constituted, and has further prescribed that that authority should be of 3 members, of which the Chairman must be one, that the minimum number of members who can hear appeals, or the quorum, should be 2 and that the Chairman could nominate the other two members from among the members of the Collegium. There is, in my view, no question of any delegation of the power vested in the Government in constituting the authority to the Chairman. All that the statute provided is that rules should be made to prescribe the authority which should hear the appeals. These rules are specific and create an authority restricting that authority to be constituted from among the members of the State Transport authority.
(13) It has been contended that rule 190 is also invalid on the ground that one Rule 189 prescribes 3 members, it is the general responsibility of the 3 members alone that has to determine an appeal and not anything less than the prescribed number. When the rule itself permits the hearing of case by a lesser number, it cannot be said that that rule is ultra vires the powers conferred on the Government to make those rules. The question came up for determination in M. Veerayya v. State of Andhra, 1958 Andh LT 1074. Bhyimasankaram, J. Held that the fact that the appellate forum consists of the State Transport Authority does not in any manner detract from the plenary power vested in the State government to prescribe the Tribunal and the mode in which it is to function, and that Rule 144 (read with rule 147) (corresponding to rules 189 and 190 in the present case) is not in excess of the provisions of the statute or in contravention of or inconsistent with such provisions. In holding so, the learned Judge followed a judgment of Satyanarayana Raju J. (As he then was) in W. P. 242/1955. This view was confirmed in Writ Appeal in M. Veerayya v. State of Andhra Pradesh, : AIR1960AP268 by Chandra Reddy, C. J., and myself. After expressing our accord with remarks of Rajamannar C. J., in W A. Nos. 30 and 43 of 1956. Distinguishing Kama Umi Isa Ammal v. Rama Kudumban. : AIR1953Mad129 we had observed at page 270 thus:
'A perusal of the relevant provisions makes it abundantly clear that the legislature left it to the Government to prescribe the appellate authority and the manner in which that authority should be constituted and to make rules for the conduct of the business of such body. Clauses (b) and (j) specifically vest such power in the Government. That being the position, it is well within the rule-making power of the Government to make a rule fixing the quorum and also authorising the Chairman to conduct the meeting without the quorum.'
It may be stated that rule 144 not only provided for a quorum of 2; it also provided that if within 15 minutes after the time scheduled for the commencement of the meeting no member turns up, the Chairman may proceed to conduct the meeting without the quorum. There also Mr. Kuppuswamy contended that reading section 44 in the light of the notification under rule 147, it was the full Board that could hear the appeal and the Chairman alone by himself had no jurisdiction to perform such a function. But that argument was not accepted. In Atherton West and Co. Ltd., Kanpur v. Kanpur Suit Mill Mazdoor Union, 0065/1953 : (1953)IILLJ321SC , their Lordships of the Supreme Court had also taken a similar view on rules similar to rule 144 (similar to rule 189 in the present case) regarding the constitution of Regional Conciliation Boards under the U. P. Industrial Disputes Act, where only two members, out of the three members constituting the Board, had signed the award. The question arose whether the award was valid in spite of having been signed only by two officers. That was answered in the affirmative, having regard to the provision which states that notice of every meeting of the Board shall be given to the members by the Chairman in advance and if apart from the Chairman either or both the other members fails to attend any meeting of the Board of which notice has been given to them, the Chairman may transact the business of the Board without the presence of the absent number or members, and no such business or proceeding of the Board shall be held invalid merely by reason of the fact that either one or both of the members were not present at the meeting and where no amicable settlement can be reached on one or more issues, if all the members present agree the Board or if they do not so agree the majority of the members agreeing, or if no two members present agree or if only the chairman is present, he alone, shall record an award and the reasons for such award on the issues on which the parties were unable to reach an amicable settlement. It is, therefore, clear from these decisions that the quorum rule is not ultra vires the powers conferred on the Government.
(14) Apart from this, it will be observed that the Bench in Moova Veerayya's case : AIR1960AP268 (supra) took the view that the Legislature left it to the Government to prescribe the appellate authority and the manner in which that authority should be constituted and to make rules for the conduct of the business of such body. IN the present case, the manner in which such authority, should be constituted is specified in rule 189. That rule, as I have already stated, does nothing more or less than prescribe the members who will constitute the appellate authority. All the members of the State Transport Authority including, the Chairman are qualified to constitute the Chairman are qualified to constitute the appellate authority, and if the Chairman has been given power to constitute from among them three including himself, as the authority, it is not a rule beyond the powers conferred on the government. Section 64 or Section 68 (2) (j) does not confer on the Government power to constitute the appellate authority, but only to make a rule under which that authority has to be constituted. There is in my view a distinction in the nature of these two powers. The first one imposes an obligation on the government to specify the members constituting the authority, in which case, that power could not be delegated to somebody else, while in the latter, the government are merely to make a rule whereunder such authority could be constituted. By contrast, Section 44 enjoins on the State Government to constitute for the State a State Transport Authority and Regional Transport Authority by notification in the official gazette. The government has to constitute the State or Regional Transport Authority by specifying the members and could not leave it to some one else to do, while no such obligation has been imposed u on it to constitute the appellate authority under section 64 read with section 68 (2) (j). The Legislature has merely conferred power on the government to indicate by subordinate legislation which , if made within the ambit of the power, will be treated as if enacted by the Legislature itself In the famous Delhi Laws case, 1951 SCJ 527: (AIR 1951 SC 332) Kania, C.J. at page 537 (of SCJ): (at p. 338 of AIR ) considered the meaning of the word 'delegation' and stated:
'When a legislative body passes an Act it has exercised its legislative function. The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct. These essentials are the chacraceristics of a Legislature by itself. It has nothing to do with the principle of division of powers found in the Constitution of United States of America. Those essentials are preserved, when the Legislature specifies the basic conclusion of fact, upon ascertainment of which, from relevant data, by a designated administrative agency, it ordains that its statutory command is to be effective. The Legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactment's into operation and effect may be done by the Legislature or may be left to another subordinate agency or to some executive officer. While this also is sometimes described as a delegation of legislative powers, in essence it is different from delegation of legislative power which means a determination of the legislative policy and formulation of the same as a rule of conduct. I find that the word 'delegation' is quite often used without bearing this fundamental distinction in mind. While the so-called delegation, which empowers the making or rules and regulations, has been recognized as ancillary to the power to definite legislative policy and formulate the rule of conduct, the important question raised by the Attorney General is in respect of the right of the Legislature to delegate the legislative functions strictly so-called.'
Fazl Ali, J. At page 569 (of SCJ): (at p. 355 of AIR) observed thus:-
'.. the Privy Council have repeatedly pointed out that when the Legislature retains its dominant power intact and can whenever it pleases destroy the agency it has created and set up another or take the matter directly into its own hands, it has not parted with its own legislate power. They have also pointed out that the act of the subordinate authority does not possess the true legislative attribute, if the efficacy of the act done by it is not derived from the subordinate authority but from the Legislature by which the subordinate authority as entrusted with the power to do the act.' Mukherea, J., at P. 652 (of SCJ): (at P. 399, 400 of AIR ) stated thus:-
'..the Privy Council have repeatedly pointed out that when the Legislature retains its dominant power intact and can whenever it pleases destroy or take the matter directly into its own hands, it has not parted with its own legislative power. They have also pointed out that the act of the subordinate authority does not possess the true legislative attribute, if the efficacy of the act done by it is not derived from the subordinate authority but from the Legislature by which the subordinate authority was entrusted with the power to do the act.' Mukherjea, J., at P. 652 (of SCJ): (at P. 399, 400 of AIR ) stated thus:-
'Subordinate legislation, it is not disputed, must operate under the control of the Legislature from which it derives its authority, and on the continuing operation of which, its capacity to function rests. As was said by Dixon, J. (In Victoria Stevedoring and General Contracting Co. V. Dignan, 46 C. L. R. 73 at p. 102) 'a subordinate legislation cannot have the independent and unqualified authority which is an attribute of true legislate power'.......................... Subordinate legislation not only connotes the subordinate or dependent character of the agency which is entrusted with the power to legislate, but also implies the subordinate or ancillary character of the legislation itself, the making of which such agent is entrusted with. If the Legislature hands over its essential legislative powers to an outside authority that would, in my opinions, amount to a virtual abdication of its powers and such an act would-be in excess of the limits of permissible delegation.'
S. R. Das, J., said at page 702 (of SCJ): (at p. 427 of AIR):
'.............the Legislature must not efface itself or abdicate all its powers and give up its control over the subordinate authority to whom it delegates its law-making powers. It must not, without preserving its own capacity intact, create, and arm with its own capacity a new legislative power not created or authorised by the instrument by which the Legislature itself was constituted. In short, it must not destroy its own legislative power. There is an antithesis between the abdication of legislative power and the exercise of the power of legislation. The former excludes or destroys the latter. There is no such antithesis between the delegation of legislative power and the exercise of the legislative power, for however wide the delegation may be, there is nothing to prevent the Legislature, if it is so minded, from, at any time, withdrawing the a matter into its own hands and exercising its law-making powers. The delegation of legislative power involves an exercise of the legislative power. It does not exclude or destroy the legislative power itself, for the legislative power is not diminished by the exercise of it.'
Bose, J., observed at page 727 (of SCJ): (at p. 439 of AIR ) thus:-
'.....the Indian Parliament can legislate along the lines of the Queen v. Buarh, (1878) 5 Ind App 178 (PC), that is to say, it can leave to another person or body the introduction or application of laws which are or any be in existence at that time in any part of India which is subject to the legislative control of Parliament, whether those laws were enacted by Parliament or by a State Legislature set up by the Constitution. That has been the practice in the past. It has weight reasons of a practical nature to support it and it does not seem to have been abrogated by the Constitution.'
Patanjali Sastry, J., also was of the same view, Mahajan, J., however dissented and was of the view that in the absence of express powers of delegation allowed by the Constitution the Parliament has no power to delegate its essential legislative functions to others, whether State Legislatures or executive authorities, except, of course, functions, which really in their true nature are ministerial.
(15) It is therefore clear that subordinate legislation within the limits specified in the above case is not a delegation of legislative power as has been sought to be contended before me. Where particularly under Section 68(2)(j) rules could be prescribed for plurality of authorities to be constituted for hearing appeals - such would be necessary in this case for different areas, the Telangana and the Andhra - the members who constitute such authorities could be specified by the Chairman from amongst a designated body of persons. The rule itself prescribed the authority with the power conferred on the Chairman to choose any two members of the designated body, and when made, it is part of the law, there being nothing in the Act itself to restrict the conferment of such power. In Dhananjoy v. Chairman, Appellate Board, AIR 1961 Assam 56. Rule 89 of the Assam Motor Vehicles Rules empowered the authority to decide an appeal under section 64 of the Act by Chairman and two members of the State Transport Authority appointed by the chairman. It was held that this rule doe not contemplate appointment of any permanent Board to hear all appeals and there is nothing in the plain language of that rule to exclude the ad hoc appointment of the members by the Chairman for the purpose of hearing by the Chairman for the purpose of hearing an appeal. Mehrotra, J., (as he then was) observed with respect to the above rule at page 62:-
'We are familiar with such procedure elsewhere also. There is a list of jurors and from among them the jurymen are selected at the time of trial. Rule 89 contemplates similar procedure. There is a State Transport Authority constituted under Section 44 of the Act and the Chairman can select any two members out of the members of the State Transport Authority for hearing a particular appeal.
In Abdul Mohi v. State of Madhya Pradesh, : AIR1964MP255 , Rule 67 which required the State Government to constitute an appellate authority consisting of such number of members not exceeding five as it may deem fit to appoint, and appoint one of the members to be the Chairman thereof. The Chairman is empowered to constitute Benches consisting of a single member or two or more members and the Bench so constituted shall exercise the powers and functions of the appellate authority, The contention that this rule conferred an unwarranted delegation of power on the part of the Government was said to be based on a total misconception of the effect of the clauses of the rule. At page 257, Dixit, C. J. Observed.
'When Clause (A-2) of Rule 67-A(1) gives to the Chairman the power to constitute Benches 'consisting of a single member or two or more members', there is no delegation by the Government to the Chairman of the Appellate Authority, of its power under Sec. 68 of constituting an appellate tribunal and of regulating its procedure. All that Clause (a-2) does is to empower the members of the Appellate Authority to exercise the power and functions of that Authority sitting singly or in Division Benches and to give to the Chairman the power to constitute Benches and to distribute the work of the hearing and disposal of the appeals accordingly.'
In Maula Bux v. Appellate Tribuynal of State Transport Authority Jaipur, , a Bench of the Rajasthan High Court was considering the constitutionality of the Appellate Authority under Rule 108(a) of the Rajasthan Motor Vehicles Rules, namely, that the authority to decide an appeal against the orders of a Regional Transport Authority under Clauses (a), (b), (c), (d) (e) and (f) of Section 64 of the Act shall be the Chairman and two members of the State Transport Authority from time to time appointed by the Government. That rule was amended whereby the Chairman and two members of the State Transport Authority, have been replaced by Transport Minister of the Government of Rajasthan as the Chairman, and the Legal Remebancer to the Government of Rajasthan and the Director of Transport for the State of Rajasthan as members. There was no mention in the draft amendment of the Transport Minister being the Chairman. It was contended that the Government had no authority to make the rule in the language different from that of the draft unless some objection had been received by it and bound to make the rules strictly is conformity with the drat. The objections was held to be without force. Ranawat, J., at page 23 observed:
'The point regarding the constitution of the Appellate authority was a matter of detail in the opinion of the legislature. The purpose and the policy of the Act was to control the transport vehicles. Which authority would did charge the function of an appellate authority is, in our opinion, a matter of detail and cannot be regarded to be an essential feature of the policy of control of transport vehicles.
Whether the authority prescribed is X or Y makes no difference in the eye of law so long as it discharges the function imposed upon it by law and the discretion given to the State Government of constituting Appellate Authority cannot be regarded to be a matter of essence of the police set out in chapter IV of the Act. It may also be added that the circumstances under which the State Government in different areas function are not of uniform character and the legislature, therefore, may not have thought it proper to enact the constitution of the Appellate Authority or to prescribe qualifications for the Chairmanship and thus left this matter to the discretion of the State Governments. Sections 64 and 68 of the Motor Vehicles Act cannot in this view of the matter be regarded to be invalidated the argument of Mr. Rastogi that Sections 64 and 68 are laid down in the judgment of the Supreme Court in Delhi Laws Act case 1951 SCJ 527: (AIR SC 332), (supra) has no substance, and cannot be accepted.'
It is contended by Mr. Chowdary that in that case the rule provided that the other members of the Authority will be appointed by the government. But that in my view makes no difference to the legality of the rule as made in the present case. Having regard to the view that the legislature had conferred on the Government the power to prescribe the mode and the manner of constitution the appellate authority, the contention of the learned advocates for the petitioners, that the power conferred on the Chairman to choose two of the members from among the members of the State transport Authority constituted by the State Government under Section 44 of the Act, is invalid or that it is a sub-delegation not authorised by the statute, has no force and must be rejected.
(16) Coming to the merits in W. P. 749/65 it is contended that the Regional Transport Authority has not given a finding whether any of the contesting parties has a workshop or not. In the appeal of respondent 4 also, neither he has stated that he has a workshop did he say that the petitioner has not; nor from the order of the appellate authority does it appear from the argument recorded by it that respondent 4 had a workshop. It is only in revision when it came before the Government it appears from the record that a report was called for from the Regional Transport Authority, which, it is alleged by the petitioner, was behind the back of the petitioner, and on a consideration of that report, it was held that no workshop was owned by the petitioner. Nr. Chowdary therefore complains that no opportunity was given to him to contest that report. It is further submitted that respondent 4 made two identical applications, one as Ramachandra Naidu and the other as Ramachandra Motor Bus Service and in these applications he has given different addresses, one of Tirupati and the other of Chittoor. It is also pointed out from the record that in both the applications respondent-4 mentioned all the number of buses, both in his individual name as well as in the partnership of Ramachandra Motor Bus Service. It is however admitted that both the 4th Respondent and the petitioner have equal number of marks, viz., 5, and it is only on the ground that the petitioner has no workshop and the 4th respondent's history-sheet was clean, that preference has been given to the 4th respondent. Even if the petitioner is deemed to have a workshop, there is still the fact that the history sheet of the 4th respondent is clean compared to that of the petitioner. This is a question of fact, which this Court cannot go into. In Samrathmal Keshrimal v. State Transport Appellate Authority (C. A. No. 503/65 D/-25-8-1965, 1965 SC (Notes) No. 303 at P. 258), decided by their Lordships of the Supreme Court, the appellate tribunal had given preference to the appellant on the ground that he had clean sheet and pointed out that the respondent had an adverse record, though in its view it was not so bad as to lead to the conclusion that its operation was unsatisfactory. Their Lordships held that the Tribunal's order was based upon assumption of the relevant factors and the High Court could not in the exercise of its writ jurisdiction set it aside.Even here, Mr. Chowdary, contends that one bad mark on the history sheet does not disentitle the petitioner from applying. But even so, the appellate authority as well as the government could consider the comparative merits of the record as a relevant consideration for preferring the 4th respondent to the petitioner. As I said, this is a matter which this Court cannot in exercise of its writ jurisdiction interfere with the order of the Appellate Authority.
(17) The result is that these writ petitions are dismissed with costs. Advocate's fee in W. P. 749/65 Rs. 100/- and in the other writ petitions Rs. 50/- each.
(18) Writ Petitions dismissed.