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Karnail Singh Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3398 of 1960 connected with Civil Misc. Writ No. 3371 of 1960
Judge
Reported inAIR1963All337
ActsMotor Vehicles Act, 1939 - Sections 68, 68D, 68I and 68I(1); Motor Vehicles Rules - Rule 7
AppellantKarnail Singh
RespondentState of Uttar Pradesh and ors.
Appellant AdvocateS.N. Kacker, Adv.
Respondent AdvocateShanti Bhushan, Adv.
DispositionPetitions dismissed
Excerpt:
motor vehicles - validity - sections 68, 68-d, 68-i of motor vehicles act, 1939 - rule 7 framed under sections 68 and 68-i - validly framed - objections disposed off by joint secretary and not by state government - proper compliance with section 68-d. - - if the governor can make such a rule under article 166(3) of the constitution, there is no good reason why the governor should not be able to make such a rule under sub-section (1) of section 68-1 of the act. if the process can be supported under an appropriate rule to b9 framed by the governor under article 166(3} of the constitution, i do not see any good reason why the state government should not be able to make a similar rule unaer sub-section (1) of section 68-1 of the act......a stage carriage on mirzapur-ghorawal route. there was a proposal to nationalise this route. the state government, therefore, issued a notification on 2-7-1960 under section 68-c of the act announcing a plan to nationalise this route. objections were invited. the petitioner filed an objection. the objection was disposed of by the joint secretary to u. p. government in the judicial department, subsequently another notification was issued on 25-11-1960 under section 68-d of the act approving the provisional scheme. it was further directed that the petitioner's permit for mirzapur-ghorawal route shall stand cancelled. this writ petition is directed against the two government notifications dated 2-7-1960 and 25-11-1960 issued under sections 68-c and 68-d of the act respectively.3. the sole.....
Judgment:
ORDER

V.G. Oak, J.

1. These two connected writ petitions are directed against two notifications issued by the State Government under the Motor Vehicles Act (Act No. IV of 1939 hereafter referred to as the Act). Since the same question of law is involved in these two cases, it will be convenient to dispose of the two cases by a common judgment. Karnail Singh is the petitioner in Civil Miscellaneous Writ No. 3398 of 1960.

2. The petitioner held a permit for plying a stage carriage on Mirzapur-Ghorawal route. There was a proposal to nationalise this route. The State Government, therefore, Issued a notification on 2-7-1960 under Section 68-C of the Act announcing a plan to nationalise this route. Objections were invited. The petitioner filed an objection. The objection was disposed of by the Joint Secretary to U. P. Government in the Judicial Department, subsequently another notification was issued on 25-11-1960 under Section 68-D of the Act approving the provisional scheme. It was further directed that the petitioner's permit for Mirzapur-Ghorawal route shall stand cancelled. This writ petition is directed against the two Government notifications dated 2-7-1960 and 25-11-1960 issued under Sections 68-C and 68-D of the Act respectively.

3. The sole contention of Mr. S. N. Kakkar appearing for the petitioner was that, the Joint Secretary to Government had no authority to dispose of objections under Section 68-D of the Act. The same point was urged before me by Mr. S. N. Misra In Bishambhar Dayal v. state, Civil Miscellaneous Writ No. 2302 of 1961. That writ petition is also being disposed of by me today, Mr. S. N. Kakkar pointed out that, under Section 68-D of the Act, objections have to be disposed of by the State Government, in the instant cases the objections were not disposed of by the State Government, but by the Joint Secretary to Government in the Judicial Department The question is whether there was proper compliance with the requirements of Section 68-D of the Act.

4. In support of the action taken by the respondents, Mr. Shanti Bhushan appearing for the State referred to certain rules framed by the State Government under Ch. IV-A of the Act. On 24-4-1958 rules were framed by the State Government under Sections 68 and 68-1 of the Act. The rules were subsequently modified by Government notification dated 20-2-1959. The 1959 notification refers to Section 68 of the Act, and does not refer to Section 68-1 of the Act. Mr. Kakkar did not rely on this vernal defect in the 1959 notification, He was prepared to concede that, the rules relied upon try the State Government might be treated as rules framed under Section 68-1 or the Act. These rules may, for convenience, be reterred to as Transport Rules. The question is whether the transport Rules afford sufficient Justification for dispose of objections of the petitioners by the Joint Secretary to U. P. Government

5. Rule 7 of the Transport Rules deals with 'Consideration and Disposal of Objection'. Sub-uule (1) of Rule 7 states:--

'The objections received Shall be considered by the Judicial Secretary to Government, U. P., or M officer or his department, net below the rank of a Joint secretary, nominated by the former for the purpose'.

Sub-rule (5) of Rule 7 states :

'After the hearing of such parties as Appear, the officer shall give a decision whether the scheme should be approved or modified, as he may deem proper'.

When Sub-rule (1) and, (5) of R. 7 an read together, a appears that the Joint Secretary to U. P. Government was authorised under Rule 7 to dispose of objections under Section 68-D of the Act. Mr. Kahkar contended that Rule 7 referred to above is ultra vires. On the other hand, Mr. Shanti Bhushan maintained that till Impugned rule was validly made by the State Government under Section 68-1 of the Act. So the question for decision is whether Rule 7 could be validly made by the State Government under Section 68-1 of the Act

6. Section 684 of the Act runs thus:

'(1) The State Government may mate rules for the purpose of carrying into effect the provisions of this Chapter.

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

(a) ..............

(b) ..............

(c) the manner in which objections may be considered

and disposed of under Sub-section (2) of Section 68-D....................'

7. Mr. Shanti Bhushan contended that the functions of the State Government under Section 68-D could bo delegates to a subordinate officer under Clause (c) of Sub-section (2) or Section 68-1 of the Act. On the other hand, Mr. KaKkar contended that Clause (c) of Sub-section (2) merely deals wttn the manner In which objections might be considered and disposed of under Section 68-D.

8. It is doubtful whether Clause (c) of Sub-section (2) of Section 68-1 permits delegation of authority for disposal of objections under Section 68-D. In the alternative, Mr. shanti Bhushan contended that the impugned rule can be supported under Sub-section (1) of Section 68-1 of the Act. Sub-section (1) permits the State Government to make rules for the purpose of carrying into effect the provisions of Ch. IV-A.

9. A similar argument was advanced on behalf of the petitioner in G., Nageshwar Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308. In that case objections under Section 68-D were disposed of by the Secretary to Andhra Government in charge of the Transport Department. The question arose whether the Secretary was competent to discharge functions of the State Government under Section G8-D of the Act. In this connection, their Lordships of the Supreme Court observed on page 325 thus;--

'The State Government is an impersonal body and it can only function, through the machinery and in the manner prescribed by law'.

10. A connected contention in that case was that, the functions of the State Government under Section 68-D were quasi-judicial. Consequently, such functions were not capable of delegation. This contention was also overruled. Their Lordships observed on page 326 thus:--

'The concept of a quasi-judicial act implies that tne act is not wholly judicial; it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power. The: procedural rules made by the Governor for the convenient transaction of business or the State Government apply also to quasi-judicial acts, provided those rules conform to the principle of Judicial procedure'.

11. Mr. Kakkar tried distinguish the present case from Nageshwara Rao's case, AIR 1959 SC 308 on the ground that, in the present case the impugned rule has been framed under Section 68-1 of the Motor Vehicles Act, whereas the impugned rule in Nageshwara Rao's case, AIR 1959 SC 308 had been framed by the Governor under Clause (3) of Article 166 of the Constitution. Mr. Kahkar conceded that a rule of this nature may properly be framed by the Governor under Clause (3) of Article 166. But he contended that such a rule is not permissible under Section 68-1 of the Act.

12. Section 68-1 of the Act has already been quoted. Clause (3) of Article 166 of the Constitution is in these terms:--

'The Governor shall make rules for the more convenient transaction of the business of the Government of the state, and for the allocation among Ministers of the said business in so far as it is not business with respect to which me Governor is by or under this Constitution required to act in his discretion'.

13. On comparing the two provisions, I find that the language of Sub-section (1) of Section 68-1 of the Act is more or less similar to the language of the tirst part or Clause (3) of Article 166 of the Constitution. If the Governor can make such a rule under Article 166(3) of the Constitution, there is no good reason why the Governor should not be able to make such a rule under Sub-section (1) of Section 68-1 of the Act.

14. Mr. Kakkar pointed out that the Act has prescribad a certain machinery for framing rules under the Act. Under Section 133 of the Act, all rules made under tne Act by the State Government have to be laid before Parliament. They have also to be published in the Official Gazette. It may be that a certain procedure has to be followed for making effective rules under Section 68-1 of the Act. But that consideration has nothing to do with the validity of the rules. The short question for consideration is whether such a rule can be framed at all under Section 68-I of the Act.

15. Mr, Kakkar emphasised that under Section 68-D of the Act, objections have to be disposed of by the State Government; and the duty is quasi-judicial. He, therefore, urged that such a function cannot be delegated. Reliance was placed upon Bernard v. National Dock Labour Board, (1953) 2 QB 18 at p. 40. It was observed there:

'No judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication'. (Quoted in Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court (1955) 2 SCR 1331 at P. 1345: ((S) AIR 1956 SC 285 at p. 291)).

The dictum quoted above itself shows that it is possible to delegate even judicial functions. The only condition is that, delegation must be permissible either expressly or by necessary Implication. Admittedly, there is no express delegation of functions under Section 68-1 of the Act. The question still remains whether delegation of functions has been permitted by implication.

16. Section 68-D requires that the State Government should dispose of objections. Under the General Clauses Act, 'The State Government' means the Governor. So, If Section 68-D were to stand by itself, it is the Governor who has to dispose of objections under that section. But Mr. Kakkar conceded that it would be highly inconvenient, if the Governor is required to dispose ot objections under Section 68-D personally. Mr. Kakkar further conceded that the Governor's functions under Section 68-D might be discharged by a subordinate authority with the aid of an appropriate rule framed under Article 166(3) of the consuls tion Section 68-1 of the Act has been inserted by a recent amendment. Parliament must be aware of the procedure permitted by Article 166(3) of the Constitution, it is rot to be supposed that Parliament expected the Governor to dispose of objections under Section 68-D personally, Parliament must have contemplated delegation of such functions of the Governor. It, therefore, appears that, by inserting Section 68-1 in the Act, Parliament enabled State .Governments to make appropriate rules to introduce a suitable machinery for carrying out the requirements of Section 68-D of the Act. I take it that, by necessary implication, under Section 68-1 Parliament empowered State Government to make rules for delegating the functions of the state Government, under Section 68-D to subordinate officers.

17. Mr. Kakkar conceded that, such a process is permissible under Article 166(3) of the Constitution. But he contended that, that process is merely allocation of worn, whereas the impugned process is one of delegation of power. I do not think that, much turns on the question whether the process under discussion is described as allocation of work or delegation of functions. If the process can be supported under an appropriate rule to b9 framed by the Governor under Article 166(3} of the Constitution, I do not see any good reason why the State Government should not be able to make a similar rule unaer Sub-section (1) of Section 68-1 of the Act. It may be that the Impugned rule might not be permissible under the specific powers conferred by Sub-section (2) of Section 68-1 of the Act. But Sub-section (1) of Section 68-1 is expressed in very wide terms. The broad term of Sub-section (1) of Section 68-1 enable the State Government to frame rules empowering subordinate officers to discharge the functions of the State Government or the Governor, under Section 68-D of the Act. In my opinion, Rule 7 under discussion was validly made by the State Government under Section 68-1 of the Act. The two impugned notifications issued by the State Government are both valid.

18. Each of the two writ petitions is dismissed withcosts to respondent No. 1. The stay order in each case isvacated


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