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Himalaya Transport and Forwarding Agency and anr. Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 1464 of 1972
Judge
Reported inAIR1973All30
ActsDefence of India Act, 1962 - Sections 1(3); Motor Vehicles Act, 1939 - Sections 43
AppellantHimalaya Transport and Forwarding Agency and anr.
RespondentThe State of U.P. and ors.
Appellant AdvocateL.P. Naithani, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
.....came to an end. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment..........inter alia of their being unconstitutional. its purpose does not seem to be to extend the life of rules or orders made under the act even after the emergency is over. so far as sub-clause (b) is concerned, that can apply to cases where some right, privilege, obligation or liability acquired, accrued or incurred under the act or the rules, the notification in question fixed the maximum rate of freight for public carriers operating in the region. the order in question has been passed in exercise of powers under section 43 of the motor vehicles act and not under the defence of india act. so far as the act is concerned, all that it did was to empower the state government to confer power on a person other than the appropriate authorities constituted under the motor vehicles act, to pass.....
Judgment:
ORDER

C.S.P. Singh, J.

1. The two petitioners run public carrier vehicles in the Nainital region. The Parliament enacted the Defence of India Act, 1962 (being Act No. 51 of 1962) on the 12th December, 1962. This Act was by Section 1 (3) to remain in force during the period of emergency declared by Presidential proclamation on the 26th October, 1962, and for a period of six months thereafter. Section 6 of this Act introduced temporary amendments in some Acts. By Sub-clause (4) of Section 4 of the Act, it sought to amend the Motor Vehicles Act, 1939. Section 6 (4) (a) gave powers to the State Government to authorise any person by a notification in the Official Gazette, to perform to the exclusion of the State Transport Authority or Regional Transport Authority, such functions as may be specified in the notification. The State Government thereafter issued a notification on the 26th November, 1962, authorising the Transport Commissioner to fix the minimum rate for plying public carriers, in U. P. Normally this power was exercised by the State Transport Authority under Section 43 (1) of the Motor Vehicles Act. The Transport Commissioner in exercise of this power issued a notification on the 19th March, 1963 (Annexure 'B' of the petition) fixing certain rates for freights in the hill areas. It appears that the rates fixed were different for the Nainital and Garhwal region. The petitioners ply in Nainital region and the rates fixed for this region are less than that fixed for the Garhwal region. The emergency proclaimed on the 26th August, 1962, it is admitted, has come to an end, and a further period of six months has also expired. The petitioners challenge this notification on the ground that the notification has become ineffective after the emergency has come to an end.

2. Section 1 (3) of the Defence of India Act, 1962 prescribed the period during which the Act was to remain in force. Even after the expiry of the period set out therein, Sub-clauses (a), (b), (c) and (d) of this sub-section provided for the continuance of certain orders etc. Counsel for the respondents has urged that even though the Act is no longer in force, the notification in question would be saved by Clause (a) or (b) of this sub-section. It will be convenient to extract these clauses:--

'(1) (3) It shall remain in force during the period of operation of the Proclamation of Emergency issued on the 26th October, 1962 and for a period of six months thereafter but its expiry under the operation of this sub-section shall not affect:

(a) the previous operation of, or anything duly done or suffered under, this Act or any rule made thereunder or any order made under any such rule, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or

(c) ... ... ... ... ...'

So far as Sub-clause (a) is concerned, it only protects the previous operation of, or anything duly done or suffered under, the Act or any rule made thereunder or any order made under any such rule. This is made clear by the use of the words 'the previous operation of' in this sub-clause. The protection given by this sub-clause does not extend to orders passed during the period of emergency after the emergency is over. It would be an antithesis to interpret Sub-clause (a) as extending the life of orders passed under the Act, even though the Act itself is no longer in force. This sub-clause was enacted for the purposes of shutting out any challenge to acts under the Act or Rules framed thereunder, during the period of emergency, on the ground inter alia of their being unconstitutional. Its purpose does not seem to be to extend the life of Rules or Orders made under the Act even after the emergency is over. So far as Sub-clause (b) is concerned, that can apply to cases where some right, privilege, obligation or liability acquired, accrued or incurred under the Act or the Rules, The notification in question fixed the maximum rate of freight for public carriers operating in the region. The order in question has been passed in exercise of powers under Section 43 of the Motor Vehicles Act and not under the Defence of India Act. So far as the Act is concerned, all that it did was to empower the State Government to confer power on a person other than the appropriate authorities constituted under the Motor Vehicles Act, to pass orders under that Act It only brought about a change in the authority which was to pass the particular orders. The right or liability, if any, created by the fixation of the maximum rate is referable to the provisions of Section 43 of the Motor Vehicles Act and not to the provisions of the Act or the Rules. Thus Sub-clauses (a) and (b) of Sub-section 1 (3) of the Act do not help the respondents. The notification as such cannot be sustained and has to be quashed.

3. The petition is accordingly allowed. The impugned notification dated 19th March 1963 (Annexure 'B') to the petition is quashed. In the circumstances, parties shall bear their own costs.


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