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Maula Bux and ors. Vs. the Appellate Tribunal of State Transport Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberCivil Writ No. 313 of 1959
Judge
Reported inAIR1962Raj19
ActsMotor Vehicles Act, 1939 - Sections 48, 64, 68 and 133; General Clauses Act, 1897 - Sections 23 and 23(5); Rajasthan Motor Vehicles Rules, 1951 - Rule 108; Constitution of India - Article 245
AppellantMaula Bux and ors.
RespondentThe Appellate Tribunal of State Transport Authority and ors.
Appellant Advocate R.K. Rastogi and; J.P. Jain, Advs.
Respondent Advocate C.L. Agarwal, Adv. for Respondent Nos. 3, 4, 5, 10 and 11,; G.C. Kasliwal, Adv. General and;
DispositionApplication rejected
Cases ReferredGopalan v. State of Madras
Excerpt:
.....and was thus a person interested in the business of transport. the petitioners also claim that the state government in amending rule 108 failed to follow the procedure laid down by section 23 of the general clauses act inasmuch as in the draft which they published, there was no mention of the person, who was to be appointed as chairman of that authority and in the rule, which was framed after publication of the said draft, a specification was added that the transport minister was to be the chairman of the authority. it was also urged that the regional transport authority and the appellate authority failed to take into account the point of the adequacy of transport services in granting more permits than necessary. as regards the last point regarding the permits of gajanand varma, inderlal..........and was thus a person interested in the business of transport.the petitioners also claim that the state government in amending rule 108 failed to follow the procedure laid down by section 23 of the general clauses act inasmuch as in the draft which they published, there was no mention of the person, who was to be appointed as chairman of that authority and in the rule, which was framed after publication of the said draft, a specification was added that the transport minister was to be the chairman of the authority. in this connection, the contention of the petitioners is that unfettered powers were given to the government to prescribe the appellate authority and. section 64 of the motor vehicles act was unconstitutional for that reason. in the alternative, it was contended that the.....
Judgment:

Ranawat, J.

1. This is an application under Article 226 of the Constitution of India. The petitioners Maulabux and sixteen others are bus operators. They held permits for stage carriages on (1) Sikar--Losal, (2) Sikar--Singrawat, (3) Sikar--Khur, (4) Sikar--Danta Ramgarh, (5) Danta Ramgarh--Losal routes. The Regional Transport Authority with the consent of all the petitioners and respondent No. 13, who was also a bus operator on the aforesaid routes, integrated all the five routes into one by its resolution No. 364 of the 18th and 20th of August 1956. The petitioners and respondent No. 13 were allowed temporarily to ply their buses on the integrated route till they were granted permanent permits. The Regional Transport Authority, Jaipur, advertised the integrated route for grant of permits, and published all the applications that they received in response to their advertisement and considered them in their meeting dated the 7th of October 1958.

The Regional Transport Authority granted twenty-six permits on the integrated route including seventeen to the petitioners and nine to others. The petitioners went in appeal to the Appellate Authority, but their appeals were dismissed. The Appellate Authority granted one more permit to Radhakishan, respondent No. 13, thus making the total number of permits on the integrated route to be 27 in place of 26. The decision of the Appellate Authority is dated 24th July 1959. It may also be noted here that the Regional Transport Authority, Jaipur, while increasing the number of permits also increased the number of services on the integrated route from six to ten. The petitioners have come to this Court from the order of the Appellate Authority dated the 24th of July 1959.

2. In the first place, the petitioners have challenged the validity of the Constitution of the Appellate Authority for the reason that the Chairman of the Appellate Authority was not a person of Judicial experience and according to the petitioners, it was necessary that the post of the Chairman of the Appellate Authority should have been held by a person having the qualification of judicial experience similar to that of the Chairman of the State and the Regional Transport Authorities under Section 44(2) of the Motor Vehicles Act. In the next place, the petitioners claim that the constitution of the Appellate Authority was bad for the reason that the Director of Transport was one of its members, when he could not have been appointed as such, for he was the head of the transport undertakings of the State and was thus a person interested in the business of transport.

The petitioners also claim that the State Government in amending Rule 108 failed to follow the procedure laid down by Section 23 of the General Clauses Act inasmuch as in the draft which they published, there was no mention of the person, who was to be appointed as Chairman of that authority and in the rule, which was framed after publication of the said draft, a specification was added that the Transport Minister was to be the Chairman of the Authority. In this connection, the contention of the petitioners is that unfettered powers were given to the Government to prescribe the Appellate Authority and. Section 64 of the Motor Vehicles Act was unconstitutional for that reason. In the alternative, it was contended that the State Government should have prescribed the qualifications of judicial experience for the office of the Chairman of the Appellate Authority in accordance with the spirit of the Motor Vehicles Act, as indicated by the provision of Section 44 (2) of the Motor Vehicles Act by which the Chairman of the State and the Regional Transport Authorities, who perform functions similar to those of the Chairman of the Appellate Authority, is required to possess judicial experience.

The petitioners also contend that the Regional Transport Authority and the State Transport Authority acted in disregard of the provision of the proviso to Section 48 (1) of the Motor Vehicles Act in granting permits to Gajanand Verma, Inderlal Dhand, Kishnaram Jat and Chhotukhan, for none of these persons applied for a permit on the integrated route and Gajanand Varma only applied for Sikar--Losal route and Inderlal Dhand and Kishnaram mentioned Sikar--Losal--Danta Ramgarh--Khoor and Chhotukhan mentioned Sikar--Losal--Danta Ramgarh--Singrawat in their applications for grant of permits. It was also urged that the Regional Transport Authority and the Appellate Authority failed to take into account the point of the adequacy of transport services in granting more permits than necessary. At the time of the hearing of the case, the learned counsel of the petitioners abandoned this point. The petitioners claim that the Appellate Authority should be declared to be unconstitutional and that the permits of Gajanand Varma, Inderlal Dhand, Kishnaram and Chhotukhan should be held invalid.

3. Replies were filed to the writ petition by respondents Nos. 1 and 2 and also by respondents Nos. 3, 4, 5, 10 and 11.

4. The facts pleaded by the petitioners were not disputed. The case of the contesting respondents is that the constitution of the State Transport Authority was not illegal and that under the Motor Vehicles Act or the rules framed thereunder, the Chairman of the Appellate Authority was not required to be a person of judicial experience. As regards the difference in the draft that was published under Section 133 of the Motor Vehicles Act and the Amended Rule 108, it was pleaded that the rule did not become invalid merely because of the said change.

As regards the last point regarding the permits of Gajanand Varma, Inderlal Dhand, Kishnaram and Chhotukhan, it was stated that the petitioners failed to take objection in this behalf before the Regional Transport Authority and even though they raised this point at the time of the hearing of the appeals before the Appellate Authority, they failed to make a mention in this behalf in their memos of appeal and the State Transport Authority was, therefore, not in error in holding that the petitioners had no right to take up that point in their appeal and also that this was a case of mis-description in the name of the route and that the applications of the aforesaid persons were in fact for the integrated route.

5. We would first take up the point regarding the constitutionality of the Appellate Authority. The relevant portion of Rule 108 (a) as it originally stood was as follows:

'108. Appeals against orders of a Regional Transport Authority:

(a) The authority to decide an appeal against the orders of a Regional Transport Authority under Clauses (a), (b), (c), (d), (e) and (1) of Section 64 of the Act shall be the Chairman and two members of the State Transport Authority from time to time appointed by the Government.................

Provided that in case any of the two members so appointed is unavoidably absent on the day fixed for hearing of an appeal, such appeal may be heard by the Chairman and the other member so appointed and if they are equally divided in opinion, the appeal may be referred to the second member whose decision shall be final.'

Section 133 (1) and (2) of the Motor Vehicles Act lay down as under:

1. 'Every power to make rules given by this Act is subject to the condition of the rules being made after previous publication.

2. All rules made under this Act shall be published in the Official Gazette, and shall, unless some later date is appointed, come into force on the date of such publication'.

Rule 108 was made by the State Government in exercise of powers given to it under Section 68 of the Motor Vehicles Act.

5-A. Section 23 of the General Clauses Act lays down the procedure for making rules with previous publication as under:

'23. Provisions applicable to making of rules or bye-laws after previous Publication.--Where, by any Central Act or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:

1. the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby;

2. the publication shall be made in such manner as that authority deems sufficient, or, if, the condition with respect to previous publication so requires, in such manner as the Government concerned prescribes:

3. there shall be published with the draft a notice specifying a date or alter which the draft will be taken into consideration;

4. the authority having power to make the rules or bye-laws, and where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified;

5. the publication in the Official Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.'

The State Government in order to amend Rule 108 published Notification No. 3/F.1(7)/1/HB/59 dated the 30th of May 1959 giving the Draft Amendment of Rule 108 as follows;

Draft Amendment.

'In Sub-rule (a) of Rule 108 of the Rajasthan Motor Vehicles Rules, 1951, for the words 'the Chairman and two members of the State Transport Authority from time to time appointed by the Government', the words 'the Transport Minister, the Legal Remembrancer to the Government of Rajasthan and the Director of Transport for the State of Rajasthan' shall be substituted.'

The Government by its Notification dated the 21st of July 1959 No. D.4307/F.1(7)/1/HB/59 made the following amendment in Rule 108: 'In the said rules :

1. in Sub-rule (a) of Rule 108, for the words 'be the Chairman and two members of the State Transport Authority from time to time appointed by the Government', the words 'consist of the Transport Minister, Government of Rajasthan, as Chairman, and the Legal Remembrancer to the Government of Rajasthan and the Director of Transport for the State of Rajasthan as members' shall be substituted.'

2. the words 'so appointed' occurring twice in the proviso to Rule 108 (a) shall be deleted.

6. The only difference in the draft that was published and the Amendment that was subsequently made as is clear from the relevant quotations reproduced above is that in the Draft there is no mention as to which one of the three persons shall be the 'Chairman', whereas the rule provides that the Transport Minister shall be the Chairman of the Appellate Authority. The contention of the learned counsel for the petitioners is that the Government had no authority to make the rule in the language different from that of the Draft unless some objection had been received by it and was bound to make the rule strictly in conformity with the draft. The contention, if accepted, would make the powers of the Government for making changes in the Draft dependent on the receipt of objections. There is no provision in Section 23 of the General Clauses Act limiting the power of the rule making authority in this manner.

It is incumbent on the rule making authority to publish a draft of the rule under Section 23 of the General Clauses Act and to invite objections from all concerned. The authority has further to consider the objections, if any, and to make a rule in exercise of its rule making power. The powers of rule making under Section 68 of the Motor Vehicles Act are subject to the condition of previous publication only and after a draft of the amendment of rules is published as required by Section 23, it is open to the authority to make rules with or without changes in the previously published draft, subject however to the condition that the rule so made is not absolutely foreign to the draft. In the present case, the amendment of Rule 108 as finally made when compared with the previously published draft shows that the change is ancillary to the draft and it cannot be regarded as absolutely foreign to it.

The objection, therefore, is without force and cannot be supported by the plain language of Section 23 of the General Clauses Act read with Sections 133 and 68 of the Motor Vehicles Act. It may also be mentioned here that Sub-section (5) of Section 23 of the General Clauses Act raises a conclusive presumption that after the publication of the rule in the official Gazette, it is to be inferred that the procedure for making such rule had been followed. In the present case, the amended rule was published in the official Gazette and the petitioners are, therefore, debarred from questioning the irregularities, if any, in the previous publication of the amendment.

7. Coming to the next point regarding the qualification of the Chairman of the Appellate Authority, it may be pointed out that there is no specific provision either in the Motor Vehicles Act or the Rules framed thereunder prescribing qualification for the Chairman of the Appellate Authority. Section 64 of the Motor Vehicles Act provides that

'64. Any person-

(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or

(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or

(c) aggrieved by the refusal to transfer the permit to the person succeeding on the death of the holder of a permit, or

(d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such counter signature, or

(e) aggrieved by the refusal of renewal of a permit, or

(f) being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit is aggrieved by the grant thereof or by any condition attached thereto, or

(g) being the holder of a licence who is aggrieved by the refusal of a Regional Transport Authority to grant an authorisation to drive a public service vehicle, may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard.'

'Prescribed' has been denned by the Act as prescribed by rules framed under the Act. By Section 68, rule making power has been conferred upon the State Government for matters covered by Chapter IV. The contention of the learned counsel for the petitioners is that the provision of Section 64 is unconstitutional inasmuch as the Legislature has given a very wide discretion to the rule making authority for constituting the appellate authority without giving any indication as to the make of such authority. The law on the subject was dealt with in extenso in Re Article 143, Constitution of India and Delhi Laws Act (1912), etc., AIR 1951 SC 332. The view of the Supreme Court is that the legislature must declare the policy of the law and fix the legal principles which are to control any given case and must provide a standard to guide the official empowered to execute the law. This standard must not be too indefinite or general. It may be laid down in broad general terms.

Chapter IV of the Motor Vehicles Act deals with the subject of control of transport vehicles. By Section 42, it has been made mandatory for transport vehicles to obtain permits and the subsequent sections of the Chapter lay down the manner in which permits are to be granted and the principles that are to be borne in mind at the time of granting of such permits. Section 44 prescribes the authority for regulating and controlling motor vehicles and by the amendment of Section 44(2) qualifications have been added for the membership of the Chairman of the State and the Regional Transport Authorities. By Section 64 right of appeal has been conferred in certain specified cases. It has further been provided that such appeals shall lie to the prescribed authority in prescribed manner.

The Legislature left it to the Government of the State to constitute the Appellate Authority for purposes of Section 64. The purpose has been clearly stated in the various sections and power has been given to the State Government under Section 68 to make rules for purposes of carrying into effect the provisions of Chapter IV. A reference to the various provisions of Chapter IV of the Motor Vehicles Act shows that the legislature has laid down its policy precisely. The point regarding the constitution of the Appellate Authority was a matter of detail in the opinion of the legislature. The purpose and the policy of the Act was to control the transport vehicles. Which authority would discharge the function of an Appellate Authority is, in our opinion, a matter of detail and cannot be regarded to be an essential feature of the policy of control of transport vehicles.

Whether the authority prescribed is X or Y makes no difference in the eye of law so long as if discharges the function imposed upon it by law and the discretion given to the State Government of constituting Appellate Authority cannot be regarded to be a matter of essence of the policy set Out in Chapter IV of the Act. It may also be added that the circumstances under which the State Governments in different areas function are not of uniform character and the legislature, therefore, may not have thought it proper to enact the constitution of the Appellate Authority or to prescribe qualifications for the Chairmanship and thus left this matter to the discretion of the State Governments. Sections 64 and 68 of the Motor Vehicles Act cannot in this view of the matter be regarded to be invalid and the argument of Mr. Rastogi that Sections 64 and 68 are hit by this principle of delegated legislation as laid down in the judgment of the Supreme Court in Delhi Laws Act case, AIR 1951 SC 332 has no substance, and cannot be accepted.

8. In Section 44 (2) qualifications have been prescribed for the Chairman of the State as well as the Regional Transport Authorities. The argument of the learned counsel for the applicants is that the functions of the Appellate Authority are virtually co-extensive with those of the Regional Transport Authority and if the Chairman of Regional Transport Authority is to be a person of judicial experience, the Chairman of the Appellate Authority should also necessarily require such experience to enable him to discharge his duties satisfactorily. The argument is by way of analogy.

9. The learned counsel is right in suggesting that the qualification of judicial experience would be an asset for the Chairman of the Appellate Authority to help such Authority to discharge its functions satisfactorily. It is for the State Government to consider this circumstance while prescribing such Authority in exercise of the discretion vested in it by law. The question, however, is whether the constitution of the Appellate Authority would become illegal or invalid in case a person having no judicial experience is appointed as Chairman of, the Appellate Authority.

It may be noted that the Motor Vehicles Act and the Rules framed under it as they now stand make no provision regarding the qualifications of the Chairman of the Appellate Authority and left the matter in the discretion of the State Government. It was for the State Government to decide whether or not to appoint a person of judicial experience to fill in the post of the Chairman of the Appellate Authority. The desirability of such qualifications is a matter for the consideration of the State Government. However, in a case where the State Government appoints a person without such qualifications to be the Chairman of the Appellate Authority, the appointment cannot be regarded as invalid for the simple reason that such appointment is not contrary to law. We may refer to the following observations of Kania, C.J. in Gopalan v. State of Madras, AIR 1950 SC 27 :

'There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the constitution but not expressed in words.'

The contention of the learned counsel for the petitioners is that the spirit of the Motor Vehicles Act should have been followed by the State Government in making the appointment of the Chairman of the Appellate Authority and when a man without judicial experience was appointed, such appointment suffered on account of being opposed to such spirit. It may be noted that it is difficult to accept the logic of the argument. The courts are supposed to give effect to the plain language of the law and cannot be guided by the alleged spirit of the law.

10. The objection against the permits of Gajanand and three others is that the integrated route for which permits were granted to them was not specifically mentioned in their petitions for grant of permits and no permit could be granted to them in disregard of the proviso to Section 48 (1) of the Motor Vehicles Act. It may be noted that though the specifications about routes in the petitions of Gajanand and others were not clear about the integrated routes yet the Appellate Authority had the jurisdiction to determine as to what was meant by the descriptions given in the applications for grant of permits and to come to a finding that the descriptions given therein were for the integrated route. The jurisdiction being there, the Appellate Authority could come to a finding of its own and it is not proper for this Court to examine the correctness of the finding. We would, therefore, not go into the point of interpretation of the language used in the applications for grant of permits and to come to our own decision whether the entries contained therein can reasonably mean the integrated route or otherwise.

11. We may shortly dismiss the argument of the learned counsel for the petitioner that the constitution of the Appellate Authority was not valid as the Director of Transport was one of its members. There is no such statutory bar. There is no prohibition in the Act or the Rules framed thereunder that the Director of Transport shall not be a member of the Appellate Authority. The argument of the learned counsel proceeds on the line that the Director of Transport is a person interested on behalf of the State in carrying out transport business and as such he cannot be a member of the Appellate Authority. This argument has no validity on the facts of the present case.

No application for the grant of permit was made by the Department under him or by any other Department of the State and it cannot be said that he was interested one way or the other in disposing of the appeal in which the dispute related as to the respective rights of the members of public who had made applications for the grant thereof. Such being the case, we need not address ourselves to the broader question as to what will happen when the State has made an application for grant of permit. We find no substance in this argument of the learned counsel.

12. The application fails and is dismissed.The petitioners shall pay two sets of costs: one torespondents Nos. 1 and 2 and the other to the contesting respondents Nos. 3, 4, 5, 10 and 11.


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