Skip to content


Rama Chandra Misra Vs. President, District Board - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. Petn. No. 42 of 1949
Judge
Reported inAIR1951Ori1; 17(1951)CLT10
ActsMadras Local Boards Act, 1920 - Sections 60, 134, 166 and 223; Motor Vehicles Act, 1939 - Sections 42, 42(1), 134(4); Government of India Act, 1935 - Sections 107, 107(1), 292 and 311(2); Motor Vehicles (Amendment) Act, 1942 - Sections 22 and 42; Madras Local Boards (Amendment) Act, 1930 - Sections 166 and 166(1); Indian Law; Federal Law; Provincial Law
AppellantRama Chandra Misra
RespondentPresident, District Board
Appellant AdvocateR.K. Das, Adv.
Respondent AdvocateD. Sahu, Adv.
DispositionRevision dismissed
Cases ReferredVeerappa v. Emperor
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....narasimham, j.1. this petition is against the judgment of sri priyanath sarkar, magistrate, 1st class, berhampur, convicting the petitioner under schedule 07, madras local boards act, 1920, for contravention of schedule 66 of that act and sentencing him to pay a fine of rs. 50 in default to undergo simple imprisonment for one week. the learned magistrate also passed an order under schedule 12 of that act directing the petitioner to deposit the full licence fee of rs. 285 plus cost to the district board of ganjam.2. the petitioner is the owner of two motor buses nos. o. b. c. 107 and o. b. c. 115 which were plying for hire between cuttack and berhampur in january-march 1914. he had obtained a permit from the regional transport authority for plying the vehicles on the road from cuttack to.....
Judgment:

Narasimham, J.

1. This petition is against the judgment of Sri Priyanath Sarkar, Magistrate, 1st class, Berhampur, convicting the petitioner under Schedule 07, Madras Local Boards Act, 1920, for contravention of Schedule 66 of that Act and sentencing him to pay a fine of Rs. 50 in default to undergo simple imprisonment for one week. The learned Magistrate also passed an order under Schedule 12 of that Act directing the petitioner to deposit the full licence fee of Rs. 285 plus cost to the District Board of Ganjam.

2. The petitioner is the owner of two motor buses Nos. O. B. C. 107 and O. B. C. 115 which were plying for hire between Cuttack and Berhampur in January-March 1914. He had obtained a permit from the Regional Transport Authority for plying the vehicles on the road from Cuttack to Berhampur during the said period but he did not obtain any licence from the Ganjam District Board as required by Schedule 66 (l) (a), Madras Local Boards Act, 1920, (hereinafter referred to as the Madras Act). The President of the District Board, therefore, sanctioned his prosecution for contravention of the said section which was punishable Under Section 207 of that Act.

3. The prosecution examined only one witness, namely, Parsuram Behera (p. w. l), a clerk of the office of the Ganjam District Board, at Chhatrapur who was in charge of issuing of licences to motor vehicles. His evidence was that buses Nos. o b. 0. 107 and O.R. C. 115' were plying from Berhampur to Cuttack on hire on the District Board road during the quarter from January to March 1914; that the petitioner was the owner of the vehicles and that he did not obtain a licence from the District Board for plying the said vehicles on hire for the quarter in question. During the examination of the petitioner under Schedule 42, Criminal P. C., he frankly admitted that he plied his buses for hire for the period in question without obtaining a licence from the District Board, Ganjam.

4. The Motor Vehicles Act, 1939 (hereinafter referred to as the Central Act) was passed by the Central Legislature sometime in 1939 and it contains exhaustive provisions relating to the control of motor vehicles. Chapter IV of the Act deals specifically with the control of those motor vehicles which carry passengers or goods for hire or reward. Section 42 prohibits the owner of a transport vehicle from using it except in accordance with the conditions of a permit granted by the appropriate transport authority. It is not denied that the petitioner had obtained & permit under that section from the competent authority for the period in question. On behalf of the petitioner, it is contended that the aforesaid Central Act overrides the provisions of Schedule 66(1) of the Madras Act and that a person who has obtained a permit under Schedule 2 of the Central Act need not obtain a licence from the District Board under Schedule 66 (l) of the Madras Act.

5. Material extracts from the two sections are quoted below.

Section 42 (1) of the Central Act - 'No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or Provincial Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used.'

Section 166 (1) of the Madras Act-'No person shall use : (a) any motor vehicle for hire, or (b) any motor lorry, on any public road in a district, except on a licence obtained from the President of the District Board.'

6. The Madras Act with its several subsequent amendments continued to remain as the law in force in Ganjam District in the year 1944, In 1931 the Madras Legislature passed another Act known as the Madras Motor Vehicles Taxation Act, 1931, abolishing the levy of tolls in the Presidency of Madras and also the levy of taxes on motor vehicles by local bodies and providing for taxation of motor vehicles by the Provincial Government at certain stipulated rates. In Schedule 1 to that Act there were several provisions dealing with consequential amendments made to the Madras Act so as to bring it in conformity with the Madras Motor Vehicles Taxation Act. But so far as Schedule 66 of the Madras Act was concerned, there were no consequential amendments, apparently because the Madras Legislature thought that the section dealt with the issue of licences on payment of fees and not with levy of taxes on motor vehicles. Consequently, Schedule 66 of the Madras Act, and the provisions of the Madras Motor Vehicles Taxation Act continued to exist side by side in Ganjam District.

7. Prior to the passing of the Central Act in 1939, the Motor Vehicles Act, 1914 (Act viii [8] of 1914) and the rules framed by the Madras Government under Chat Act known as the Madras Motor Vehicles Rules, 1923, remained in force in Ganjam District. Under those Rules motor vehicles plying for hire were required to take permits from certain specified authorities. But in Rule 30 (a) (i) (ii) of those Rules it was expressly provided that no permit should be granted unless the applicant produced satisfactory evidence that he obtained the licence under Schedule 66 of the Madras Act. Therefore by virtue of this express provision an owner of a motor vehicle plying for hire was made aware of the necessity of obtaining a licence from the District Board Under Section 166 of the Madras Act in addition to the permit from the appropriate authority under the said Rules and no doubt about the necessity of complying with both the statutory provisions could ever arise. But, soon after the passing of the Central Act in 1939, the Government of Orissa framed a new set of rules known as the Orissa Motor Vehicles Rules, 1940, which replaced the Madras Motor Vehicles Rules, 1923, in Ganjam District. In the Orissa Motor Vehicles Rules, 1940, however, there was no provision corresponding to Schedule 0 (a) (i) (ii) of the Madras Rules requiring compliance with Schedule 66 of the Madras Act also before granting a permit under the Central Act. Whether this omission was due to oversight on to some other reason it is difficult for us to say at present. But Mr. Das on behalf of the petitioner, urged that the Orissa Government deliberately omitted any reference to a licence Under Section 166 of the Madras Act in their Rules of 1940, because they knew that that section was repealed by implication with the passing of the Central Act. But in considering the purely legal question regarding the implied repeal of an earlier enactment by a later enactment the action of the Provincial Government in omitting any reference to the earlier enactment in the Rules framed by them under the later enactment is not a decisive guide and the whole question has to be considered in accordance with the well known principles dealing with interpretation of statutes. But the petitioner can reasonably urge that because of this omission he was under the mistaken impression that no licence need be obtained under the Madras Act. This may be a point in his favour at the time of considering the sentence.

8. Mr. Das's argument may be summed up thus :

(1) The provisions of the Central Act which is a later self-contained statute dealing with motor vehicles must by necessary implication repeal the provisions of Schedule 66 of the Madras Act.

(2) Section 166 of the Madras Act is, in substance, a statutory provision relating to taxations of motor vehicles even though it purports to deal with the levying of fees. Therefore, it would become inoperative after the expiry of nine months from the commencement of the Central Act by virtue of the necessary implication arising out of Sub-section (i) of Section 134 of the Central Act.

(3) Section 166 of the Madras Act is, in any case, void under Schedule 07 (l), Government of India Act, 1935.

9. The subject 'mechanically propelled vehicles' was included in the Concurrent Legislative List (item 20 of List ill) in the Government of India Act, 1935. From a perusal of the various provisions of the Motor Vehicles Act, 1939, it will be clear that the Act wag passed with the main object of controlling motor traffic, controlling drivers, providing for compulsory insurance and for securing the safety and convenience of the public and developing a co-ordinated system of transport. Chapter IV of that Act deals with control of transport vehicles, that is to say, vehicles plying for hire or reward. Section 42 (already quoted) requires that the owner of such vehicles should obtain permits from the Regional or Provincial Transport Authority as the case may be. Such authorities are statutory bodies constituted by the Provincial Governments and under cls. (a) to (f) of Sub-section (1) of Schedule 7, a transport authority is required to consider the interests of the public, the necessity of preventing unhealthy competition among transport services, the condition of the roads and other factors. The repair or maintenance of the roads was not a matter within the scope of the Central Act and there is no provision in it dealing with that subject. But if the provisions of Schedule 66 of the Madras Act, are carefully scrutinised, it will be noticed that the main object of Schedule 66 of the Madras Act was to regulate the use of public roads by motor vehicles plying for hire, by issue of licences, so as to safeguard against excessive wear and tear of the roads and also to provide for repairs to such roads. Licence fees were added to the District Fund under Section 5B (3) of Schedule V to that Act and one of the main purposes for which the District Fund may be utilised was the repair and maintenanee of public road3 vesting in the District Board (see Section 112 (1) (i) ). The regulation of traffic with a view to provide for the convenience of passengers or for preventing unhealthy competition amongst rival transport services was not the function of the District Board. It is true that there is overlapping of the functions of the two bodies to some extent, but in essence, the District Board was concerned with safeguarding the public roads whereas the Transport Authorities were concerned with the regulation of traffic in the interests of public safety and convenience. Thus when the objects of Schedule 2 of the Central Act and Schedule 66, Madras Act, are entirely different and these statutory provisions are meant for different purposes the question of the provision of a later statute repealing by implication a provision in an earlier statute does not arise.

10. Moreover, when the Central Legislature passed the Central Act in 1939 they were fully aware of the existence of Schedule 66 of the Madras Act and if their intention was really to repeal the same they would have surely expressly said so in Schedule 34 which deals with 'Repeal' :

''Repeal by implication is not favoured .... It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the Statute book, or, on the other hand, to a Sect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention.'

(Maxwell on Interpretation of Statutes, 9th Edn. p. 173). In Hill v. Hall, (1876) 1 Ex. D.411 : (45 L. J. M. C. 163), it was pointed out:

'It is common learning that one statute may be impliedly repealed by a subsequent statute necessarily inconsistent with it : but then the inconsistency must be so great that they cannot both be to their lull extent obeyed.'

This decision lays down that one of the tests to be applied is whether the two provisions could be obeyed to their full extent. Similarly in Kutner v. Phillips, (1891) 2 Q. B. 267 : (60 L. J. Q. B. 505), it was observed that : 'a repeal by implication is only effected when the provisions of a later enactment are so Inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together.'

Lord Halabury while discussing whether there was inconsistency between an earlier and a later statute observed : 'Where is the inconsistency if both may stand together and both operate without either interfering with the other ?' Tabernacle Permanent Building Society V. John Knight, (1892) A. 0. 298 : (62 L. J. Q. B. 50). To a similar effect ate the observations of Sorutton L. J., in Flannagan v. Shaw, (1920) 3 K. B. 96 at p. 105 : (89 L. J. E. B. 168) :

'Unless two Acts are be plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implied.' In Lewis v. Berrey, (1936) 1 Ch. D. 274: (105 L. J. Ch. 38), also it was pointed out that: 'a Court does not construe a later Act as repealing an earlier Act unless it is impossible to make the two Acts or the two sections of the Act stand together . . .'

11. Thus there seems to be abundant authority for the view that repeal by implication should not be inferred unless there is no other way out and that one of the tests to be applied in deciding whether an earlier statute is repealed by a later statute is whether both of them can stand together and their provisions obeyed to the full extent. This 'obedience teat' has doubtless came in for some criticism from the majority of Judges in an Australian Case Clyde Engineering Co. Ltd. v. Cowburn, (1926) 37 C. L, R. 466. But the point has been further explained by Higgins J., in that judgment at pp. 503 and 504 where he points out that 'there is no inconsistency when it is possible to obey each without disobeying the other,' In the present case as already pointed out the two statutory provisions have been made for entirely different purposes and the different statutory authorities who have been given powers to enforce those provisions have quite different functions to perform. Doubtless there may be some overlapping on minor matters, but on essentials their duties are quite different. Consequently repeal by implication should not be inferred especially when the Central Legislature while expressly providing for repeal of some other statutory provisions in Schedule 34 of the Central Act deliberately refrained from making any mention of the Madras Act.

12. In Corporation of Madras v. Madras Electric Tramways Ltd., A. I.R . (18) 1931 Mad. 152: (54 Mad. 364) there is an interesting discussion on the subject of repeal by implication. Though on facts that case may be slightly different from the present one, some of the English decieins cited therein especially Uckfield Rural District Council v. Croborough District Water Co., (1899) 2 Q. B. 664: (68 L. J. Q. B. 1009), Moran & Son, Ltd. v. Marsland, (1909) 1 K. B. 744 : (78 L. J. K. B. 346) and London County Council v. District Surveyors' Association, (1909) 2 K. B. 138 : (78 L. J. K. B. 729), are instructive. The last case is of special interest in the present discussion. In that case the question for decision was whether there was an inconsistency between the Education Acts, 1870 to 1902, on the one hand and the London Building Act, 1894, on the other. The local education authority for London after obtaining the approval of the Board of Education under the said Education Acts began the construction of a building for use as a public Elementary School. But it omitted to give notice of such construction to the district surveyor as required by the London Building Act, 1894, It was pointed out that the building regulations made by the Board of Education were designed in the interests solely of the children attending the school whereas the requirement of notice to the district surveyor under the London Building Act, 1894, was designed mainly in the interests of the outside public and not in those of the persons using the building itself. This argument seems to have found favour with Lord Alverstone C.J. who while rejecting the contention that inconvenience would arise if two public authorities had concurrent jurisdiction over the erection of a building observed :

'This argument as to the conflict of jurisdiction of different public authorities has been addressed to us in other oases, where it was sought to exclude from the supervision of the district surveyor certain structures which were required to comply with the regulations of the Postmaster-General, the Board of Trade, and other public bodies; but there is no valid reason why a building should not comply with both.' In the present case also it was contended by Mr. Das that if the District Board and the Transport Authorities had both control over the plying of motor vehicles for hire on certain routes there may be conflicting orders and inconvenience to the public. But as such control is exercised for different purposes and there is no reason why an owner of a motor vehicle plying for hire should not comply with the orders issued by both there seems to be no justification for inferring implied repeal of the impugned provision of the Madras Act.

13. I now take up the argument of Mr. Das based on Schedule 34 (4) of the Central Act. Sub-section (4) runs thus:

'Nothing contained in this Act shall until the expiry of a period of nine months from the commencement of this Act, operate to invalidate any provisions relating to the taxation of motor vehicles contained in any Provincial enactment or rules made thereunder in force at the commencement of this Act.'

Mr. Das argued that by necessary implication from this sub-section it follows that but for the saving clause provided therein all statutes relating to taxation of motor vehicles would have become invalid after the passing of the Central Act and that the said sub-section extended their life for a period of nine months only from the commencement of that Act. The obvious answer to this argument is that Section 166 of the Madras Act is a provision dealing with 'fees' and not 'with 'taxes' and consequently no necessary implication can be drawn about its invalidity from the provisions of Sub-section (4) of Schedule 34 of the Central Act. The broad distinction between a 'tax' and a 'fee' is well known. I hare already shown that Section 166 of the Madras Act is intended for the limited administrative purpose of enabling the District Board to regulate the use of public roads by certain classes of motor vehicles. The fees collected by the issue of licences are not meant to be a regular source of revenue to the District Board, though they are credited to the District Fund. A maximum is fixed in 'Sub-section 3 (a) so that the fees may not become a source of profit to the District Board. But it is unnecessary to discuss this question further because I cannot accept Mr. Das's contention that by necessary implication from Sub-section (4) of Schedule 34 of the Central Act all statutes dealing with taxation of motor vehicles would become invalid. The Madras Motor Vehicles Taxation Act, 1931, continued in force in Orissa long after 1944. In 1940 the Orissa Legislature passed an Act known as the Motor Vehicles Taxation (Orissa Amendment) Act, 1940 (Orissa Act III [3] of 1940) amending that Act in its application to the ex-Madras area. Moreover the subject 'taxes on vehicles suitable for use on roads) whether mechanically propelled or not, including tramcars' was made an exclusively provincial subject by an amendment made to the Schedule 7, Government of India Act, 1935, by Parliament in The India and Burma, (Miscellaneous Amendments) Act, 1940 (3 & 4) Geo. VI Oh. 5) and a new item 48-A was inserted in List II of that Schedule. By Schedule 7 (l) of that Act retrospective effect was given to that amendment in consequence of which all statutes dealing with taxation of motor vehicles that were in force prior to the commencement of the Government of India Act, 1985, would continue in force after its commencement until repealed or amended by a competent Legislature (see Schedule 92). It is not necessary to surmise (at ?) present as to why the Central Legislature thought it necessary to enact Sub-section (4) of Section 134 of the Central Act. But it is sufficient to note that, that sub-section was omitted by Section 22, Motor Vehicles (Amendment) Act, 1942 (Act XX [20] of 1942) and it is no longer in Section 134. Therefore reliance on that sub-section seems futile.

14. The third argument of Mr. Das based on Section 107(1), Government of India Act, 1935, seems equally groundless. That section merely says that if a Provincial law is repugnant to a Federal law or to an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List then the Provincial law to the extent of that repugnancy shall be void. The definition of the expression 'Provincial law' as given in Sub-section (2) of Schedule 11 of that Act is 'a law made by a Provincial Legislature established under this Act.' That is to say only those laws that were made by Provincial Legislatures constituted under the Government of India Act, 1935, would come within the definition of 'Provincial law.' The Madras Act being an Act of 1920 passed long before the commencement of the Government of India Act, 1985, would be an existing 'Indian Law' and not a Provincial law.' The Central Act of 1939 would be a 'Federal law.' In the present case, therefore, the repugnancy, if any, is between a provision of an existing 'Indian law' on the one hand and a provision of a 'Federal law' on the other and not between a provision of a 'Provincial law' and a provision of either a 'Federal law' or an existing 'Indian law.' Section 107, Government of India Act, 1935, has absolutely no application. If there is such a repugnancy between an existing 'Indian law' and a 'Federal law' such repugnancy should be resolved in accordance with the general principles relating to the construction of statutes and not by any provision of the Government of India Act, 1935. (In this paragraph I have deliberately used the expressions found in the Government of India Act, 1935, prior to the adaptations made in 19-17 after the passing of the Indian Independence Act).

15. I would therefore hold that the Schedule 66 of the Madras Act was not repealed by necessary implication by Section 42, Central Act, inasmuch as it is possible for an owner of a motor vehicle plying for hire to comply with both the provisions. The main arguments of Mr. Das must fail.

16. Another point which was taken up for the first time in the Court of revision was that the Grown did not lead any evidence to show that the vehicle in question was actually plying for hire on the District Board road of Ganjam and that consequently the petitioner was entitled to an acquittal. The expression 'ply for hire' has a special meaning as explained in (Local Fund Overseer v. Pakkirisami Thevan, A. I. R. (15) 1928 Mad. 166 : (29 Cr. L. J. 30) where it was held

'there must be a general invitation by the person in charge of the vehicle to the members of the public to make contracts with him for carriage in the vehicle.'

This interpretation of the said expression has been followed in Ganesh Ramchandra v. Emperor, A. I.R.. (17) 1930 Bom. 167 : (31 Or. L. J. 931), Khusi Ram v. Emperor, A. I. R. (18) 1931 Lab. 569: (32 Or. L. 3. 948) and Berry Mahapatra v. Emperor, A. I. R. (28) 1936 pat. 321 : (37 Or. L. J. 850) on which the learned advocate for the petitioner relied. But in my opinion any discussion as to the true meaning of the expression 'ply for hire' is of mere academic interest in the present case. The only witness examined by the District Board, namely, Parsuram Behera (P. W. l) stated that he knew vehicles Nos. O. R. C.107 and O. R. C. 115 and that they were plying from Berhampur to Cuttack on hire on the District Board road. This portion of his evidence was not challenged at all and on the other hand during the examination of the petitioner under Schedule 42, Criminal P. C. he admitted that he did ply his passenger buses for hire without a licence from the District Board. It was thus proved as well as admitted that the vehicles were plying for hire on the District Board road and the only point in controversy was whether a licence was required under Section 166, Madras Act. Moreover Section 166 (1) (a) as amended by the amending Act, 1930 (Madras Act XI [11] of 1930) does not contain the expression 'ply for hire.' On the other hand the material portion of that section is use of any motor vehicle for hire.' It may be that the expression 'ply' is more restrictive than the expression 'use.' But Section 166 as amended is comprehensive of every kind of purpose to which the District Board road is put. Therefore; even the running of a motor vehicle which is engaged on hire over the District Board road would amount to 'use' of the road within the meaning of that section. This view is supported' by Veerappa v. Emperor, A. I. R. (17) 1930 Mad. 441 : (31 Or. L. J. 625). But it is unnecessary to enter into further discussion on this point because, as already pointed out, even if it be held that Schedule 66 (l) deals 'plying for hire' of motor vehicles, from the facts as admitted and proved in this case it is clear that the petitioner did ply his vehicles for hire on the District Board road.

17. I may now deal with some minor points which were urged for the first time in this Court. The order of the President, District Board, sanctioning prosecution (Ex. 2) does not refer to the petitioner by name but refers to 'Secretary, Cuttack Motor Association, Cuttack.' The petitioner stated in his examination under Section 842, Criminal P. C, that ha wag the Secretary of that Association torn 31-3-1944. The quarter during which the offence was said to have been committed ended on 31-3-1944. It was urged that the sanction order was irregular in. as much as during the quarter in which the contravention was said to have occurred the petitioner was not the Secretary of the Association. There is not much force in this argument because on his own admision he was the Secretary on 31-3-1944. The offence of not obtaining a licence during the quarter January-March, 1944 is a continuing one (see proviso to Schedule 23 of the Madras Act) and consequently even on 31-3-1944 the offence was committed. Moreover there is the evidence of P. W. 1 to the affect that the petitioner is the owner of O. R. C. 115 and O. R. C. 107 and the petitioner's own admission is that he did ply his bus for hire during the period in question without a licence from the District Board. In view of these admissions, the non-mention of his name in the sanction order of the President is quite immaterial and no prejudice has been caused to him by describing him as 'Secretary, Cuttack Motor Association.

18. Another minor point taken up was that in the sanction order (ex. 2) the numbers of the buses were shown as O. R. C. 107 and O . R. C. 115 whereas the numbers of the petitioner's buses were O. R. C. 107 and O. R. C. 115. The letter 'G' appears to have been typed by mistake for the letter 'C in the sanction order. This will be dear is Ex. C is serutinised. There the typist after first typing the letter 'G' corrected it by typing over it the letter 'C', Moreover on this point there is the unchallenged testimony of P. W. l to the effect that Ex. 2 if) the authority of the District Board sanctioning the prosecution of the petitioner who was the owner of O. R. C. 107 and O. R. C.115. No prejudice has been caused to the petitioner by the slight inaccuracy in the order sanctioning prosecution.

19. The petitioner was rightly convicted. As regards sentence, however, I am inclined to take the view that the offence was somewhat of a technical nature and the petitioner was perhaps misled by the action of the Provincial Government in omitting any reference to Schedule 66 of the Madras Act in the Orissa Motor Vehicles Rules, 1940. While therefore maintaining the conviction of the petitioner under: Schedule 07/166, Madras Local Board Act, 1920,I would reduce the sentence of fine to Rs. 10 only in default the petitioner should undergo simple imprisonment for one week. The Magistrate's order directing him to deposit the fall licence fee of Bs, 285 plus cost to the District Board, Ganjam, under Schedule 12 of that Act is maintained. Subject to this modification, in the sentence the revision petition is dismissed,

20. I should add that in 1948 the Orissa Legislature amended the Madras Local Boards Act by the amending Orissa Act xvi [16] of 1948 in consequence of which Schedule 66 has been omitted from the Madras Act. This amendment, however, will not affect the legal questions involved In the present petition which depend on the Law as it stood in the quarter from January to March 1944 in Ganjam district.

Jagannadhadas, J.

21. I have had the advantage of reading the judgment of my learned brother Narasimham J. and I agree entirely with the same.

22. I wish only to add that as pointed out in the judgment of Knox C. J. and Gavan Duffy, J., in 37 0. L, R. 466 at p. 478.

'Statutes may do more than impose duties: they may, for instance, confer right: and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute which conferred it.'

In the light of this test, I had some hesitation whether the 'authorisation' which a permit holder has under Schedule 2 (I), Motor Vehicles Act, 1939, is not in the nature of a 'right.' I am satisfied on a careful consideration that the 'authorisation' cannot be construed as vesting in the permit holder a 'right in or over the road. To so construe, it would interfere with the statutory ownership of road vested in the District; Board under Schedule 0, Madras Local Boards Act, from which is implicit the Board's duty to keep the road in repair and the right to impose such restrictions as may be necessary in the interests of proper maintenance of roads. As stated by my learned brother, the Motor Vehicles Act is concerned with traffic and the Local Boards Act with Roads. It would not be legitimate to construe the provision of Schedule 2, Motor Vehicles Act, dealing with traffic, as giving to the permit-holder a right to the use of the road for plying his vehicle. If Schedule 2 was not couched in negative terms but gave a positive right, it would have been a matter for consideration whether the right so given would to that extent over-ride the right of the Local Board to the Road.

Ray, C.J.

23. I am in entire agreement with what has been said by brother Narasimham J. The burthen of Mr. R.K. Das's contention ha been that a permit from the Regional Transport Authority gives him an absolute right to bustraffic on the roads within the territory of its function. It is to be noted, however, much of looseness of terminology prevails in these matters. Loose terminology and cloudy thinking always go hand in hand. There is no constitutional right to drive a motor-oar on the public highways or to do various other things there. They are privileges. The laws of the land give the citizens these privileges, or withhold them, ok grant them under such restrictions as the public interest may seem to require. There is a fundamental difference between right and privilege. Privileges can be well equated with immunities from certain defined restrictions. They yield to others' rights or even privileges equally important in the social set up of things. Laws have to be administered so as to strike a happy balance between them in the same degree and to the same extent as between individual liberty and social control, The District Board, a quasipublic body, has certain liabilities to its constituents, and has certain privileges too granted by the State. These latter are correlated to the former. So long as laws defining the correlation are allowed to stand, permission, granted by one authority, with assignments of particular purpose, will not have the legal effect of doing away with the need for exercise of another independent authority set up with the object of fulfilling another object. Particularly, if an authority is burdened with certain liabilities of which the financial incidence has to be offset by way of certain fees, it would require express or next to express legislation to uproot the one while leaving alone the other. The second conceptual confusion centres round the words 'fees' and 'taxes'. There is a fundamental difference between the two. Even a private individual can levy a fee for granting certain immunity but cannot appropriate the sovereign right of taxing. This distinction was prominent in the Government of India Act, 1935, that governed the legislation of the country till the other day in delimitation of taxing power of the Federation, the Central Government and the Provinces. What the District Board was empowered with was to levy fees for maintenance of the public roads and thoroughfares which vest in them for the purpose. The two authorities exist for different purposes, and accordingly there is no direct confict between the laws relating to them.

24. I would, therefore, agree with my learned brothers that the revision shall be dismissed subject to modification of sentence proposed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //