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S. Viswanatham Vs. State Transport Appellate Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberW.A. No. 65 of 1975 and W.P. Nos. 4130, 4186, 4187 and 4465 of 1975
Judge
Reported inAIR1977AP293
ActsMotor Vehicles Act, 1939 - Sections 2(21), 44(5), 68, 68(1), 68(2), 68-I and 68-I(2); Andhra Pradesh State, Rules - Rule 321
AppellantS. Viswanatham
RespondentState Transport Appellate Tribunal and ors.
Appellant AdvocateK. Mangachary, ;G. Suryanarayana, ;A.S.C. Bose and ;T. Venkataramana, Advs.
Respondent AdvocateB.S.A. Swamy for the Govt. Pleader for Transport and ;C. Anandarao, Standing Counsel for Andhra Pradesh State Road Transport Corporation
Excerpt:
.....the chapter iv-a does not contain any provision in regard to the delegation of the powers of the state transport authority or the regional transport authority like section 44, sub-s. 4. the learned advocate-general, appearing for the state road transport corporation contends that the government has every power to frame a rule like 321 by virtue of the powers conferred on it under section 68-i. the learned advocate general further contends that even without a valid rule of delegation like 321 the action of the secretary, state transport authority in cancelling the stage carriage permits of the private bus operators cannot be questioned in proceedings under article. the contention that in the absence of a provision like section 44(5) in chapter. iv-a and the few purposes mentioned in..........321 of the motor vehicles rules and in implementation of the appropriate schemes, the secretary, state transport authority who is the second respondent cancelled the stage carriage permits of the appellant and the writ petitioners on the ground that their stage carriage permits were overlapping on the routes in respect of which the government has approved the schemes of the road transport services. he granted permits to the road transport corporation for the routes specified in the approved schemes. aggrieved by the orders of cancellation of their stage carriage permits, the private bus operators filed revisions before the state transport appellate tribunal and the tribunal, however, dismissed the revisions. the private bus operators thereupon filed petitions under art. 226 of the.....
Judgment:

Madhusudan Rao , J.

1. The Appeal and the Writ petitions particularly raise the same points and may be disposed of together.

2. The appellant in the Writ Appeal and the petitioners in the writ petitions are Motor Transport Operators, plying buses between certain routes under stage carriage permits. Pursuant to Section 68-C of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) The A. P. State Road Transport Corporation which is the fourth respondent in the Writ Appeal and the Writ Petitions, published certain schemes for nationalising certain road transport services in several districts. The schemes were published in the A. P. Gazette dated 1-11-1974. Several representations were made by the private operators against the proposed schemes. The Minister for Transport heard the representations and thereafter, the Government approved the schemes which were duly published in the A. P. Gazette. In exercise of the powers delegated to him under R. 321 of the Motor Vehicles Rules and in implementation of the appropriate schemes, the Secretary, State Transport Authority who is the second respondent cancelled the stage carriage permits of the Appellant and the Writ Petitioners on the ground that their stage carriage permits were overlapping on the routes in respect of which the Government has approved the schemes of the Road Transport Services. He granted permits to the Road Transport Corporation for the routes specified in the approved schemes. Aggrieved by the orders of cancellation of their stage carriage permits, the private bus operators filed revisions before the State Transport Appellate Tribunal and the Tribunal, however, dismissed the revisions. The private bus operators thereupon filed petitions under Art. 226 of the Constitution before this Court for a writ of certiorari or proper writ or order or direction in the nature thereof, for quashing the order passed by the Secretary, State Transport Authority cancelling the petitioner's stage carriage permits. The Writ petition filed by one of the operators i.e. W. P. 4134/75, was dismissed after due hearing by our learned brother Venkata Rama Sastry, J. and this operator has preferred the Writ Appeal.

3. The principal contention of Sri G. Suryanarayana, on behalf of the writ petitioners and of Sri Mangachary, the learned counsel for the appellant in the Writ Appeal is that R. 321 of the Motor Vehicles Rules is ultra vires. It is contended that the rule-making power conferred by Section 68-I of the Act enables the Government to make rules only to carry out the provisions of Chapter. IV-A of the Act and the Chapter IV-A does not contain any provision in regard to the delegation of the powers of the State Transport Authority or the Regional Transport Authority like Section 44, sub-s. (5) of Chapter.IV. It is vehemently contended that each chapter of the Motor Vehicles Act is a Code by itself in regard to the matters dealt with in that Chapter and that in the absence of a provision similar to Section 44(5) in Chapter IV-A it would not be reasonable to hold that the State Government has any power of delegation to any officer any of the powers of the State Transport Authority or the Regional Transport Authority. Sri Suryanarayana contends that even though there was Section 68(1) in Chapter. IV which is exactly the same as Section 68-I of Chapter. IV-A the Legislature enacted Section 44, Sub-section (5) only to provide for delegation of the powers exercisable by the State Transport Authority and the Regional Transport Authority under Chapter. IV and that the Legislature did not deliberately enact any provision similar to Section 44, Sub-section (5) of Chapter. IV-A, as the Legislature evidently did not consider it proper that the powers of the State Transport Authority or the Regional Transport Authority under Chapter. IV-A should be delegated to any other Authority.

4. The learned Advocate-General, appearing for the State Road Transport Corporation contends that the Government has every power to frame a rule like 321 by virtue of the powers conferred on it under Section 68-I. He contends that Section 44(5) of the Chapter. IV had to be incorporated in Chapter. IV in the light of the various duties and powers contemplated in that chapter and that Section 44(5) at any rate, cannot be construed as a provision empowering delegation. The learned Advocate General further contends that even without a valid rule of delegation like 321 the action of the Secretary, State Transport Authority in cancelling the stage carriage permits of the private bus operators cannot be questioned in proceedings under Article. 226 of the Constitution, in so far as, after the approval of the schemes, the act of cancellation of the stage carriage permits has been held by the Supreme Court to be merely a mechanical administrative act.

5. Chapter. IV-A of the Motor Vehicle Act was introduced by the amending Act of 1956. This Chapter contains 'Special provisions relating to State Transport Undertakings'. The last Section in Chapter. IV of the Act prior to the amendment of 1956 is 68. Chapter. IV-A contains Sections 68-A to 68-J. Section 68-A defines 'Road Transport Service' and 'State Transport Undertaking'. Section 68-B provides that the provisions of Chapter. IV-A and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent in Chapter. IV or any other laws. Section 68-C provides for the preparation and publication of schemes of Road Transport Service of a State Transport Undertaking . Section 68-FF deals with the restriction on grant of permits in respect of a notified area or notified route. Section 68-G lays down the principles and method of determining compensation, to private bus operators whose stage carriage permits might be cancelled. Section 68-H provides for payment of compensation. Section 68-H provides for payment of compensation. Section 68-HH deals with the disposal of Article. found in the transport vehicles operated by the State Transport Undertaking , if such Article. are not claimed by their owners. Section 68-I provides for the State Government to make rules for the purpose of carrying into effect the provisions of Chapter. IV-A. Section 68-J provides for the exercise of powers by the Central Government in relation to an inter-State route or area. As contended by Sri Suryanarayana, Chapter. IV-A is a complete Code in itself in regard to the nationalisation of Road Transport Services.

6. Section 68(1) of Chapter. IV reads as follows:

'a State Government may make rules for the purpose of carrying into effect the provisions of the chapter.'

Section 68-I (1) of Chapter. IV-A reads as follows :

'The State Government may make rules for the purpose of carrying into effect the provisions of their chapter.'

Section 44, Sub-section (5) reads:

'State Transport Authority and any Regional Transport Authority , if authorised in this behalf by rules made under Section 68 may delegate such of its powers and functions to such authority or person and subject to such restrictions, limitations and conditions as may be prescribed by the said rules.'

7. It is clear from the above extracted provisions that while Sub-section 68(1) & 68-I deal with the powers of the State Government to make rules for the purpose of carrying into effect the provisions of the concerned Chaps, Section 44(5) deals with the delegation of its powers by the State Transport Authority or the Regional Transport Authority provided such delegation is authorised by the rules made by the Government under Section 68 of the Act. The contention that in the absence of a provision like Section 44(5) in Chapter. IV-A there cannot be any question of delegation of the powers or functions contemplated in Chapter. IV-A and that Section 68-I is no source of power for making a rule in regard to delegation, completely ignores the very words of Section 44(5). A careful reading of Section 44(5) makes it abundantly clear that the Government can make rules for delegation of the powers and functions of the State Transport Authority and the Regional Transport Authority under Section 68(1). What all Section 44(5) says is if rules are made under Section 68 for delegation, the State Transport Authority or the Regional Transport Authority may delegate its powers and functions in accordance with those rules. The very words of Section 44(5) make the power of delegation on the part of the Government implicit under Section 68(1). The absence of Section 44(5) in Chapter. IV-A does not in any way affect the powers of the State Government to make rules necessary for carrying into effect the provisions of Chapter. IV-A. A comparative examination of the provisions of Chapter. IV and the various purposes mentioned in Section 68(2) with the provisions of Chapter. IV-A and the few purposes mentioned in Sub-section (2) of Section 68-I and though the purposes mentioned either in Section 68(2) or in Section 68-I(2) are merely illustrative and not exhaustive, it would appear that the Legislature has to introduce a strictly regulating provision like Section 44(5) in Chapter. IV while it was quite unnecessary to include a similar provision in Chapter. IV-A. The powers and functions of the State Transport Authority and the Regional Transport Authority are of very limited administrative character under Chapter. IV-A and the Legislature must have thought it unnecessary to incorporate a provision like Section 44(5) in Chapter. IV-A. Clause (21) of Section 2 of the Act reads 'prescribed' means, prescribed by rules made under this Act. The Act itself contemplates the prescribing of a rule. Section 68-I (1) empowers the Government to prescribe rules. Rule 321 which is the impugned Rule, reads as follows :-

'321. Delegation of powers: The Regional Transport Authority concerned or the State Transport Authority may by notification in the Andhra Pradesh Gazette, delegate all or any of its functions, duties or powers, specified in Sub-section (1), (1-A), (1-B), (1-C) and Sub-section (2) of Section 68-F to its Secretary.

A Division Bench of this Court in M. Gangappa v. State, AIR 1975 Andh Pra 138 has clearly held that R. 321 made by the State Government under Section 68-I of the Act is not ultra vires and that cancellation of permits of private bus operators, after the approval of the schemes, by the Secretary, State Transport Authority in exercise of the power delegated to him under R. 321 is a perfectly valid action. Speaking for the Bench, Ekbote, C. J., observed as follows :-

'It is true that Section 68-F(2) makes pointed reference to the S. T. A. or the concerned R. T. A. Does that mean that the Government under this power of making rules to give effect to Chapter. IV-A cannot authorise the Secretary S. T. A. in addition to the two authorities to carry out the consequential and mechanical function of granting the permits to Road Transport Corporation and cancelling the permits of the private operators It is to be noted that Section 69-I (1) leaves it to the opinion of the Government to say as to what provision would be necessary in order to give full effect to Chapter. IV-A. The Courts will not substitute their opinion in this matter with that of the Government to whom the Parliament has entrusted the power to make rules. If the Court is satisfied that the Rule so made has reasonable relationship with the purpose sought to be effectuated, the Court will not strike down such a rule either on the ground that it is not within the power or that it is repugnant to the parent Act.'

8. Drawing our attention to the Full Bench decision of this Court in Satyanarayana v. Madras State, AIR 1957 Andh Pra 1027 and the decision of the Division Bench in Amaravathi Motor Transport Co. v. State, AIR 1959 AP 232 Suryanarayana and Sri Mangachari requested that the question of the validity of R. 321 may be referred to a Full Bench. They say that there is a conflict of authority on the point and that therefore the matter may be referred to a Full Bench. We have carefully examined the two decisions referred to and we find that there is no such conflict of authority as to warrant a reference to a Full Bench. The Full Bench in Satyanarayana v. Madras State proceeded on the footing that the Government had the power to make a rule empowering the Regional Transport Authority to delegate its functions under Section 68(1) but held the Rule to be invalid in so far as it contravened the special provision in Section 60 of the Act. The power of the Government to make a rule in regard to delegation of the powers by the State Transport Authority or the Regional Transport Authority in exercise of its powers under Section 68(1) was not doubted by the Full Bench. In the case of Amaravathi Motor Transport Company v. State the Division Bench considered whether R. 134-A(xi) of the Motor Vehicles Rules was within the scope of the rule-making power of the Government and it was held that the rule was beyond the scope, in so far as, it contravened the special provision in Section 60 of the Act. The power of the Government to make a Rule empowering the Regional Transport Authority to delegate its functions under Section 68(1) was not doubted. On the other hand it was clearly held therein that 'Section 68(1) authorises the Provincial Government to make a rule empowering the Regional Transport Authority to delegate its functions and Section 68(2) (2-A) enables it to make rule laying down the conditions subject to which the said delegation can be made.' The Division Bench, however, held the rule to be ultra vires, in so far as, R. 134-A(xi) is a general provision whereas Section 60 is a special provision and no rule can be allowed to have effect, if it is inconsistent with or in contravention of the provisions of the Act. The decision in that case in regard to the invalidity of R. 134-A is based not on the ground that no rule in regard to delegation can be made under Section 68(1) but on the ground that no rule which travels beyond the provisions of the Act can be given effect to. In the Full Bench case of Satyanarayana v. Madras State, the majority followed the view taken in Amaravathi Transport Company v. State. In neither of the two cases cited, was there any observations in regard to the want of power on the part of the Government to make a rule in regard to the delegation of the powers and functions of the State Transport Authority or the Regional Transport Authority to any other Officer, by the Government. Further in Abdul Gafoor v. State of Mysore, : [1962]1SCR909 , their Lordships of the Supreme Court have pointed out that action under Sub-section 68-F(1) and 68-F(2) is merely mechanical and that there is no jurisdiction for saying that when taking action under Section 68-F(2) the Regional Transport Authority exercises a quasi-judicial function. Their Lordships observed in para. 9 of the judgment as follows:

'It appears to us that when deciding what action to take under Section 68-F(2) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the scheme. The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme. The duty is therefore merely mechanical and it will be incorrect to say that there is in these matters any lis between the existing operators and the Regional Transport Authority. There is no justification therefore for saying that when taking action under Section 68-F(2) the Regional Transport Authority is exercising a quasi-judicial function. Apart from this it has to be pointed out that action under Section 68-F(2) is really independent of the issue of the permits under Section 68-F(1). Once the scheme has been approved, action under Section 68-F(1) flows from it and at the same time action under Section 68-F(2) flows from the same scheme. The argument that the Regional Transport Authority should be held to be exercising quasi-judicial function in dealing with applications for permits under Section 68-F(1) because of the action it may take under Section 68-F(2) therefore fails.'

The above observations of the Supreme Court were quoted with approval in Kalyan Singh v. State of U. P., AIR 1962 SC 1183 and it was again pointed out by their Lordships that if a scheme is validly promulgated and became final within the meaning of Section 68-D(3) the action under Section 68-F necessarily follows only as an administrative action and no option is left in the State Transport Authority or the Regional Transport Authority to do anything except to implement the scheme. In para. 18 of the Judgment in Kalyan Singh's case it was observed as follows :

'Nor is there any substance in the last contention. The orders passed under Section 68-F(2)(a) and (b) flow from the publication of the scheme duly approved and the issue of an order, which is not quasi-judicial but administrative, by the Secretary on behalf of the Regional Transport Authority is not open to challenge.'

9. Drawing our attention to the further observation of the Supreme Court viz. 'It is not the case of the petitioner in W. P. No. 205/61 in which alone this contention is raised that the order is unauthorised what is contended is that the order being quasi-judicial power to make it cannot be delegated.' Messrs. Suryanarayana and Mangachary, vehemently argued that in the instant case, it is being contended that the order of the Secretary is unauthorised and that therefore the observations of the Supreme Court in Kalyan Singh's case (AIR 1962 SC 1183) do not apply. We regret our inability to find any substance in the argument. No doubt, in the instant case it is being contended that the cancellation of the permits by the Secretary in unauthorised but the basis of the contention is the alleged invalidity of the delegation under R. 321. In Kalyan Singh's case, (AIR 1962 SC 1183), the Secretary passed the orders of cancellation on behalf of the Regional Transport Authority. In the instant cases, the Secretary passed the orders of cancellation in his own capacity as the Officer to whom the powers of cancellation under Section 68-F(2) have been delegated.

10. For the reasons recorded, we follow the Division Bench decision in M. Gangappa v. State, : AIR1975AP138 and hold that R. 321 of the Motor Vehicles Rules is valid and unassailable.

11. Sri Mangachary, the learned counsel for the appellants in the Writ Appeal No. 65 of 1976 contends that cancellation of the permits of the private bus operators under Section 68-F(2) as the Provision now stands, is not merely a mechanical act and that the observations of the Supreme Court in Abdul Gafoor v. State of Mysore, : [1962]1SCR909 and Kalyan Singh v. State of U. P., (AIR 1962 SC 1183) do not hold good as those observations were made when Section 68-F was unamended. Sri Mangachary draws our attention to the observations of the Supreme Court in Asvathanarayana v. State of Mysore, : [1966]1SCR87 . It is contended that Section 68-F was amended in the year 1969 and that every approved scheme may not always involve complete exclusion of the route of the private bus operators. He says that the implementation of an approved scheme may sometimes require only a partial exclusion of the private operators' route and that there will be difficulty in the implementation of such schemes. It is argued, whenever there is difficulty in the implementation it cannot be considered as merely mechanical. We are unable to find any substance in this contention. No doubt, as observed by their Lordships of the Supreme Court in the case relied, there may be some difficulty in the implementation of a scheme where the exclusion is not complete but partial. But such difficulty does not in any way affect the substantial nature of the implementation of the scheme which is purely administrative. The making of a proper adjustment of the maximum and minimum number of vehicles and trips is not an insuperable task and the adjustment has to be only in accordance with the approved scheme.

12. Yet another contention of the learned counsel for the private bus operators is that even if it is to be held that R. 321 is valid, still, the delegation is invalid in so far as the same was not made in accordance with the provisions of the Rule. In support of this submission, our attention is drawn to the resolution as the State Transport Authority in resort to the delegation. The Resolution reads:

'The Secretary, State Transport Authority, is delegated under R. 321 of the Andhra Pradesh Motor Vehicles Rules with the functions, duties and powers of the State Transport Authority conferred on it by Sub-section (1), (1-A), (1-B), (1-C) and (2) of Section 68-F of the Motor Vehicles Act subject to ratification by the Chairman, State Transport Authority.'

This contention was carefully considered in paras 10 and 11 of the order of the State Transport Appellate Tribunal and we do not deem it necessary to reiterate the reasons given by the Tribunal in rejecting the contention. Suffice it to say that we are in complete agreement with the reasoning and finding of the Tribunal in this regard. The Resolution was ratified by the Chairman and there is no question of any invalidity. The delegation of the powers by the State Transport Authority has been duly notified in the Gazette and we do not find any substance in this contention.

13. Further, in Halsbury's Laws of England (Fourth Edition) Vol. 1 page 449 at para. 750, it is stated as follows :

' 750. Permissible delegation. An authority to delegate will in some cases be implied, generally on the ground that there is no personal confidence reposed or skill required and that the duties are capable of being equally well discharged by any person.

Authority to delegate will be implied in the case of purely ministerial acts, where no special discretion or skill is required, and in the case of acts subsidiary to the main purpose.'

No special discretion can be exercised, nor is there any need for any judicious consideration in the implementation of a scheme, once the scheme is duly approved and promulgated. Cancellation of the permits of the private bus operators being a purely ministerial act which must inevitably follow the promulgation of an approved scheme the action of the Secretary, State Transport Authority in cancellation of the permits of the private bus operators does not appear to us to be liable to challenge even if there had been no Rule like 321 empowering delegation.

14. In the Writ Appeal, Sri Mangachary, raised an additional contention based on exception 4 of the note appended to the scheme concerned in that appeal. The appellants was plying his bus on the Anakapalli Pentakoat route (via) Yellamanchili, Nakkapalli and Tuni. Under the above scheme, the notified route is from Visakapatnam to Pentakota (via) Gajuwaka, Anakapalli, Yellamanchilli, Nakkapalli and Tuni. Exception 4 of the note appended to the notification reads as follows:

'The existing holders of stage carriage permits in respect of such route or routes with the same termini as the proposed route, but partially overlapping the proposed route.'

In Col. 1 of the notification of the scheme in regard to route, it was mentioned as follows :

1. Route (starting point Visakapatnam-Penta and terminus with kota (via) Gajuvaka, important inter- Anakapalli, Yellamanmendiate stations and chilli Nakkapalli, and route length) Tuni (112 kms.)

Relying on the use of the words 'starting point' in the published scheme, Sri Mangachari, contends that Visakapatnam is a starting point while Pentakota is a terminus and as both the termini of the appellant's route and the notified route are the same and the appellant's case is covered by the exception. We are unable to accept the argument which is based merely on the use of the words 'starting point' in the notified scheme. Section 2(28-A) of the Act provides that ' 'route' means, a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another.' According to the definition of a route, even the starting point of a motor vehicle is a terminus. Every route has two termini and a motor vehicle has to start from one of the two termini. The mere fact that the vehicle starts from one terminal point, does not mean that point ceases to be a terminus and becomes a permanent starting point. When a motor vehicle plies on a particular route between two places one place becomes the starting point while running to the other place and the other place becomes the starting point while running to the original place and as per the definition both the points which are the ends of the route are termini. The termini of the appellants route are Anakapalli and Pentakota. The termini of the notified route are Visakhapatnam and Pentakota. The termini of both the routes are therefore not the same. The entire route of the Appellants with both its termini is a part of the notified route and the appellants case does not therefore attract exception 4 to the note appended to the scheme. Our learned brother, Venkatarama Sastry, J. has rightly rejected this contention and we are in complete agreement with his view.

15. No other point having been argued, we do not find any merit either in the appeal or in the writ petitions, which are all accordingly dismissed with costs.

16. Advocate's fee of Rs. 100 is fixed in each of the Writ Petitions. Advocate's fee of Rs. 100 is fixed in the Writ Appeal also.

17. Appeal dismissed.


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