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Government of Andhra Pradesh and ors. Vs. Durga Suryanarayna - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal Nos. 85 to 89 of 1967 and 65 of 1968 and W.P. No. 612 of 1966
Judge
Reported inAIR1971AP192
ActsMotor Vehicles Act, 1939 - Sections 44, 44(2) and 68(1); Andhra Pradesh Motor Vehicles Rules, 1964 - Rule 163
AppellantGovernment of Andhra Pradesh and ors.
RespondentDurga Suryanarayna
Excerpt:
motor vehicles - power of state government - sections 44, 44 (2) and 68 (1) of motor vehicles act, 1939 and rule 163 of andhra pradesh motor vehicles rules, 1964 - section 44 (2) prescribes minimum composition of regional transport authority (rta) - state government has power under section 68 to prescribe quorum for conduct of business of rta under section 44 (2) - rule 163 is reflection of section 44 (2) and not repugnant to it. - - - transport authorities (1) the state government shall, by notification in the offical gazette, constitute for the state a state transport authority to exercise and discharge the powers and functions specified in sub-section (3) and shall in like manner constitute regional transport authorities to exercise and discharge throughout such areas (in this..........of the hon'ble the chief justice.2. the points for decision were formulated thus:-(1) whether the state government has power under section 68 to prescribe a quorum for the conduct of business of the regional transport authorities, created under section 44 of the motor vehicles act, 1939 (act iv of 1939)? (2) if so, whether the rule 163 if the andhra pradesh, motor vehicles rules, 1964 is repugnant to section 44 of the act and fails for that reason? the facts are not incontroversy that the regional transport authorities concerned levied penalties of either cancellation or suspension of the stage carriage permits of the operators concerned under section 60 of the motor vehicles act, 1939 (act iv of 1939) hereinafter to be referred to as the act; but the objection is that the non-offical.....
Judgment:

Narasimham, J.

1. In all the writ appeals the proceedings of the Regional Transport Authorities either suspending or canceling the stage carriage permits, were impugned as invalid as the non-Offical member had not participated in the said proceedings, Justice Kumarayya as he then was, set aside the proceedings of the concerned Regional Transport Authorities upholding the objection. The Judgment setting aside the orders of the Regional Transport Authorities concerned came up before a Division Bench of this Court which referred the cases as involving points of importance for decision by a Full Bench and that is how the matter has come before us on the orders of the Hon'ble the Chief Justice.

2. The points for decision were formulated thus:-

(1) Whether the State Government has power under Section 68 to prescribe a quorum for the conduct of business of the Regional Transport Authorities, created under Section 44 of the Motor Vehicles Act, 1939 (Act IV of 1939)?

(2) If so, whether the Rule 163 if the Andhra Pradesh, Motor Vehicles Rules, 1964 is repugnant to Section 44 of the Act and fails for that reason?

The facts are not incontroversy that the Regional Transport Authorities concerned levied penalties of either cancellation or suspension of the stage carriage permits of the operators concerned under Section 60 of the Motor Vehicles Act, 1939 (Act IV of 1939) hereinafter to be referred to as the Act; but the objection is that the non-Offical member had not participated in the said proceedings.

3. The relevant provisions may be appropriately read here and interpreted and the relevant case law referred to in the approtipate context.

4. Section 44 (1) of the Act, in so far as it is relevant states, thus:-

'Transport Authorities (1) The State Government shall, by notification in the Offical Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in sub-section (3) and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (in this Chapter referred to as regions as may be specified in the notification, in respect of each Regional Transport Authority, the powers and functions conferred by or under this Capture on such Authorities.'

(Provisos are not relevant)

5. Section 44 (2) of the Act, in so far as it is relevant, states thus:-

'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 then two, as the State Government may think fit to appoint;

Provided that nothing in this sub-section shall be construed as debarring an Offical (other than an official connection of a transport undertaking) from being appointed as or continuing as a member of any such Authority merely by reason of the fact that the Government employing the official has, or acquires, any financial interest in a transport undertaking.'

Section 68 of the Act in so far as it is relevant states thus:-

'Power to make rules for the purpose of this Chapter-(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.

(2) Without prejudice to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following this Chapter, (a) ..................... the conduct of business by Regional and State Transport Authorities.'

6. Rule 163 of the Andhra Pradesh Motor Vehicles Rules, 1964, states thus:-

'163 Quorum - (1) The quorum for a meeting of the Regional Transport Authority, Hederabad, shall be its Chairman.

(2) The Quorum for a meeting of any other three members of whom one shall be its Chairman.'

From the foregoing it is seen that the Act provides for the constitution of a State Transport Authority and Regional Transport Authority by notification in the Offical Gazette and also expressly states that the State Transport Authority shall consist of a Chairman with judicial experience and officials and non-officials not being less than two. We will for the purpose of these cases confine our discussion to the Regional Transport Authorities.

7. It is common ground that under G.O. No.1961 (Hone), 7-1 D/- 26-8-91 the Regional Transport Authorities were constituted each consisting of a Chairman and Offical and non-officials. We are told that the Regional Transport Authority. Hyederabad was constituted with one non-official and six Transport Authorities elsewhere were constituted with one non-Offical and three official members for each of the regions in the State.

8. Pausing here, we have to say that in B. Rajagopala Naidu v. Govt. of Andhra Pradesh, Judgment D/- 5-8-1964 in C.A.No.769 of 1963 (SC), the Supreme Court has clearly stated that:

'the State Government is given the power to prescribe the number of other members, and to select the Chairman and those other members but there the State Government is thereby not authorised to appoint a Chairman without the qualification prescribed by the Statute, nor wholly to exclude in the constitution of the Authority, either the officials or non officials.'

It was also made clear in the judgment that it was not to the State Government to draw exclusively from the Offical source or non-official source.

9. Now we pass on to section 68 under which the State Government has power to make rules for the purpose of carrying into effect the provisions of Chapter IV which deals inter alia with the constitution and composition of the Transport Authorities in the State. The conduct of business by Regional and State Transport Authorities etc., is within the scope of the Rule-making power.

10. In exercise of the foregoing power conferred under the Act, Rule 163 which is relevant in this context, has been made which may be referred to as the Quorum rule.

11. With reference to these provisions of the Act and the Quorum Rules the learned Government Pleader contended that the Regional Transport Authorities were constituted validly under Section 44 of the Act, that the Government was empowered to make a Quorum Rule under Section 68 of the Act for the conduct of the business of the R.T. as. and that the Quorum rule now impugned is not repugnant to Section 44 (2) which prescribes the composition of the R.T. As. He would further say that the quorum rule which is meant for the conduct of business is not bad though the non-Offical member has not participated in the meetings.

12. On the contrary, Srimati Amareswari raised two contentions: firstly that the Chairman and all the members constituting the R.T.A. notified as such shall sit and act at the business of the R.T.A. and as such the quorum rule is bad; and secondly, that the quorum rule is repugnant to Section 44(2) of the Act if a non-official member does not participate in the meeting. We would now examine these contentions.

13. Before discussing the cases cited by the learned counsel we would fist state out interpretation of these provisions of the Act and the Rule made thereunder. Section 44 deals not merely with the constitution of the R.T.A. but also with the composition thereof. The composition of the R.T.A. shall not be loss than three of whom one shall be a Chairman. Of the two members, one shall be an official and the other a non-official. That is the minimum composition of the R.T.A. We are now confining our attention to R.T.A. although the provision deals with the State Transport Authority as well.

14. Section 44 (2) thus prescribes a minimum strength for the R.T.A. which is tantamount to prescribing a quorum for the R.T.A. The R.T.A. might consist of more than two members in addition to the Chairman; but not less than two members.

15. The accepted meaning of 'Quorum' (derived from Latin, lit, of whom) is the minimum number of members of any body whose presence is necessary for the transaction of business. Vide Crew's Public, Company and Local Government Meeting, 18th Edition (1951) at page 37 and the Law and practice of Meetings by Frank Shackleton, 5th Edition (1967 at page 38).

16. It is well known that there is a quorum at the meetings of the Legislative Bodies, Corporation and Company Meetings, etc. and the word 'Quorum' with reference to such meetings means the minimum number of members with which the meeting is competent to act.

17. Under Section 68 (1) of the Act, the State Government has power to make rules for carrying out the provision of the Act. As we have observed Section 44(2) itself prescribes the minimum strength of the R.T.A. In order to carry out this provision into effect, Rule 163 has been framed prescribing the minimum strength or quorum. Thus Rule 163 comes within the rule making power under Sec. 68 (1) of the Act.

18. The learned Government Pleader has cited to us cases where it was held that the State Government was held that the State Government has power to make a quorum rule.

19. In G.T. Venkataswami Reddy, v. Regional Transport Authority, Bangalore, AIR 1966 Mys 55 at p. 59 it was held thus:

'The State Government which is empowered to appoint more members than the minimum prescribed by Section 44 (2) of the Act must be held to have power of prescribe by Rules that for the proper functioning of the R.T. A. all its members need not be present. In our opinion it is entitled to prescribe a quorum.'

J. K. Appacha v. State of Myrose, AIR 1968 Mys 110 was of the same view.

20. In J. Ramamurthy Naidu v. State of Andhra Pradesh, : AIR1961AP344 a Division Bench of this Court observed that in the absence of a quorum being prescribed all the members of the R.T.A. should hear a matter. These observations were made before the present quorum rule was introduced.

21. In W.P. No. 194 of 1966 decided by Gopal Rao Ekbote, J. on 14-2-1966 (AP) (unreported), he quorum rule was upheld repealing the argument that as the notification constituted four members as the R.T.A. all the four members have to act together.

22. Smt. Amareswari relied mainly on the following three cases: The United Commercial Bank Ltd. v. Their Workmen, : (1951)ILLJ621SC ; Kama Umi Isa Ammal v. Rama Kudumban, : AIR1953Mad129 and C.K. Dorai Swamy Naidu v. State of Andhra Pradesh, (1966) 1 Andh WR 133 for the contention that all the members constituted as the R.T.A. must sit and act.

23. In the first of these cases, the Government had originally appointed a Tribunal consisting of three members under the Industrial Disputes Act, 1947. The service of one of them ceased to be available for some time and the other two members continued. The third rejoined late. The effect of one of the members ceasing to be available and thereafter joining was considered and it was held that the proceedings, in the absence of one, undermined the basis principle of the joint work and responsibility of the Tribunal, that all its members should make the award and that all their awards were without jurisdiction and void. It was also point out that such a procedure was against Section 8 (1) of the Act.

24. The second case relates to the Tribunal under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (26 of 1948) constituted under Section 8 which expressly provided for three members but the Government made a rule authorising two members of the Tribunal to sit and dispose of matters which had to be decided by the Tribunal. It was held that when the substantive provisions in the Act clearly laid down that the Tribunal should consist of three members. it was not open for the Government to provide by a rule that a Tribunal might consist of less than three members. The third case is a case of an enquiry against a public servant by a Tribunal constituted under the Hyderabad Public Servants (Tribunal) of Enquiry) Act, 1950 (XXIII of 1950). One of the members conducted the enquiry and submitted a report to the Government against the Public Servant concerned. That report and the action of the Government thereon were held to be bad as violate of Section 8 and 9 of the Act.

25. It is manifest that all these are cases of violations of the provisions of the Act concerned and cannot by analogy apply.

26. In the view that we have taken that Section 44(2) of the Act prescribes a quorum for the R. T.A. and that the State Government has power to make rules for the purpose of carrying into effect for the purpose make a rule inter alia for the conduct of business by the R.T.A. which is also fortified by the authorities cited by the learned Government Pleader, we have no doubt that the State Government has the power to make the quorum rule. We would therefore reject the first contention of Smt. Amareswai that the State Government has no power to make the quorum rule and that all the members constituting the Tribunal must sit and act for the conduct of the business of the R.T.A.

27. We would now examine the second contention Smt. Amareswari that Rule 163, as it obtains, is repugnant to Section 44(2) of the Act. In Perumalla Venkayya v. Batchu Pullayya, (1942) 1 Mad LJ 390 = (AIR 1942 Mad 466) a Division Bench of the Madras High Court adopting the principle of the decision in Backwood v. London Chartered Bank of Australia, (1874) 5 PC 92 at p. 108, observed that

'the test to apply in considering whether rules are within the powers of the rule making authority under a statute are (1) whether the rules are reasonable and convenient for carrying the Act into full effect; (2) whether the rules relate to matters arising under the provisions of the Act; (3) whether they relate to matters not in the Act otherwise provided for and (4) whether they are consistent with the provisions of the Act.'

It was further observed that

'the validity of a rule is to be determined not so much by ascertaining whether it confers rights or merely regulates procedure, but by determining whether the rule is in conformity with the powers conferred under the statute reasonable and not contrary to general principles.'

28. We are in respect agreement with the observations of the Division Bench.

29. Scrutinising the matter for our consideration in the light of the aforesaid observations, it is manifest that Rule 163 is in conformity with section 44(2) of the Act. We recall our view that Section 44(2) prescribes a quorum and Rule 163 is nothing but a reflection thereof. We have already held that the Government has power under Section 68 to make the quorum rule. Rule 163 therefore satisfies the tests of validity.

30. Repugnance implies a conflict between two provisions, neither of which can be given effect to without infringing the other. When obviously there is no conflict, it would be far fetched to postulate a repugnance,

31. Further as the Supreme Court observed in Tika Ramji v. State of Uttar Pradesh, : [1956]1SCR393 repugnance must exist in fact and not depend merely on a possibility.

32. The learned counsel Smt. Amareswari contended that the quorum Rule 163(2)does not expressly state in terms that of the three members one shall be a non-official. But it would be too much to inter a repugnance by an inference that the non-official was sought to be excluded in the quorum rule. A harmonious construction is always the rule of Interpretation of Statutes and the rule made thereunder. As we are satisfied that it would be too much to inter an exclusion of a non-official from the quorum rule as there is no express mention thereof, we are reluctant to inter a repugnance as is contended for. We are satisfied that the quorum rule is a reflection of Section 44(2), and we are certain that in the light of the pronouncement of the Supreme Court in Civil Appeal No. 769 of 1963 (SC) which was referred to in the earlier part of the Judgment the quorum rule was intended to be and has to be read as a true reflection of Section 44(2) and must include a non-official member. This contention of Shrimati Amareswari has also to be rejected and is rejected.

33. We would therefore answer the questions formulated for our decision thus:-

(1) The State Government has power under Section 68 of the Act to prescribe a quorum for the conduct of business of the Regional Transport Authorities created under Section 44 of the Motor Vehicles Act, 1939(Act IV of 1939).

(2) Rule 163 of the Andhra Pradesh Motor Vehicles Rules 1964 is not repugnant to Section 44 of the Act.

34. We may add that the quorum rule is meant to e and is a true reflection of Section 44 (2) of the Act and must include a non-official.

35. In view of these findings, we dispose of the cases as follows:-

Writ Appeals Nos. 85, 86, 87,88 and 89 of 1967 and 65 of 1968 are dismissed with costs, Advocate's fee Rs. 50/- in each.

36. Writ Petition No. 712/66

The S. T.A. granted a variation of the route which is impugned as without jurisdiction as only 3 out of 4 members passed the order in question. Rule 186 of the Motor Vehicles Rules fixing the quorum is impugned as ultra vires the rule making power. The discussion pertaining to the R.T.A. equally to the quorum rule. We would therefore reject this contention and dismiss the petition (W. O.No. 712 of 1966) with costs, Advocate's fee Rs. 100/-.

37. Order accordingly.


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