1. These are five writ applications under Art. 226 of the Constitution by which the validity of the Rules called the Rajasthan State Road Transport Services (Development) Rules, 1959 (hereinafter referred to as the Rules of 1959) has been challenged. As the questions of law raised by these petitions are common, we propose to dispose of them by a single judgment.
2. It is necessary to state a few salient facts in order to understand the contentions raised in these writ petitions. The petitioners are the several holders of certain stage carriage permits on certain routes, and it is sufficient to state for our present purposes that these permits have not yet expired and would be current for some time to come. In exercise of the powers conferred on it by Section 68-I of the Motor Vehicles Act (No. IV) of 1939 (hereinafter called the Act) under Chapter IVA thereof, which was introduced into the Act for the first time by Act No. 100 of 1956, the State Government published a draft of the impugned Rules by a notification in the State Gazette dated the 9th December, 1959, in compliance with Sub-section (1) of Section 133 of the Act.
This notification was issued, to use its own language, 'for the information of all persons likely to be affected thereby', and notice was thereby given that the said draft would be taken into consideration on or after the expiry of seven days from the date of publication of that notice in the Official Gazette. It was further notified that
'any objection or suggestion which may be received from any person in respect of the said draft before the specified period will be considered fey the State Government'.
(See Appendix II). It is not disputed that in accordance with this notification, these draft rules were finalised on the 17th December, 1959, and published in the State Gazette of the same date, and this is how these rules came into force at once. By these Rules, a State Transport Undertaking in the name of 'The Rajasthan State Roadways' has been created and powers have been given to the General Manager thereof who is to be appointed by the State to the State Transport Undertaking to prepare a scheme in relation to such areas or routes as in its opinion should be run and operated by the State Transport Undertaking whether to the exclusion, complete or partial of other persons or otherwise, where the said Undertaking is of opinion that for the purpose of providing efficient, adequate, economical and properly co-ordinated road service, it is necessary in the public interest to do so.
Immediately thereafter, the State Transport Undertaking framed schemes for the various areas or routes in question which were sought to be operated hereafter by it or the Rajasthan State Roadways. These schemes were published in the State Gazette on various dates in the mouth of December, 1959. Consequently, the petitioners who are the existing bus-operators on these routes instituted the present writ applications challenging the validity of the Rules of 1959 and praying that the said Rules be declared to be ultra vires and inoperative. It was also prayed that a writ of prohibition be issued against the Government of Rajasthan and the Secretary to the Government, Law and Judicial Department (the latter being the authority appointed under the Rules to hear the objections against the various schemes) not to consider the various schemes or to give effect to them. By an interim order of this Court, the Secretary to the Government of Rajasthan, Law and Judicial Department, was restrained from deciding the objections raised by the petitioners with the result that the schemes have yet to be considered and finalised.
The principal grievances of the petitioners is that the Rules of 1959 under which the various schemes for the nationalisation of road transport service on the routes or areas in question have been prepared are illegal inasmuch as according to this petitioners although a pretence of giving some time for raising objections to the draft rules by the persons concerned was made, no real opportunity or sufficient time for the said purpose was at all furnished. The following facts are relied on in tills connection. The draft rules were published in the State Gazette for the first time on the 9th December, 1959, and just seven days' time was allowed for the filing of the objections or suggestions, and the rules were to be finalised after the consideration of these by the State Government.
The contention of the petitioners is that the relevant Gazette containing the said draft rules was not despatched from the Government Press, Jaipur, before the 14th or 15th December, 1959, so that it was received by the office of the President of the Rajasthan Bus-owners Association at Jodhpur on the 16th December, 1959, and by the Secretary of the Ajmer-Bhilwara Bus-owners Association, Bhilwara, on the 15th December, 1959. It is also submitted in this connection that the Gazette is subscribed by a number of advocates and other persons in Ajmer and the Ajmer-Jaipur route is one of the routes to be nationalised, and the particular copy of the Gazette containing the draft rules was received in Ajmer on the 15th as 16th December, 1959, and not before.
These allegations are supported by their respective affidavits by the petitioners, and it is strenuously contended that it was a virtual impossibility for the bus operators who were interested in the framing of the rules and were to be affected by them to submit any objections or suggestions against the draft rules for the consideration of the Government within the time allowed. It is further alleged in this connection that the petitioner or petitioners in writ Nos. 36, 45 and 46 sent telegrams to the Secretary to the Government of Rajasthan in the Transport Department, Jaipur, complaining that the draft rules published in the Rajasthan State Gazette dated the 9th December had been received as late as the 16th December and that it was impossible to submit any objections before the specified period, and, therefore, sufficient time should be allowed for preparing objections and submitting them to the State Government. But all this was of no avail and the draft rules, no objections having apparently been received, were finalised as they were, and published in the official gazette on the 17th December, 1959. On these facts, it is contended that the procedure followed in the finalisation of the rules was altogether illegal and unjust, and, therefore, the rules arc of no effect. The petitioners have also questioned the validity of certain specific rules, and the constitutionality of Section 23(5) of the General Clauses Act (No. X) of 1897 in this connection.
3. These applications have been resisted by the State. The submission of the State is that, according to law, it was not at all necessary to invite any objections before making the rules and that the only requirement was that the Rules should have been pre-published in accordance with the provisions of Section 133 of the Act and, that, in fact, was done, the Rules having been actually finalised after the expiry of a week from the date of the pre-publication of the draft rules.
It was further contended in this connection that under Section 23(5) of the General Clauses Act which was quite explicit and binding on all courts, once the rules, which were certainly purported to have been made in exercise of the power to make them after previous publication, were published in the official Gazette, that must be held to be conclusive proof that the rules were duly made and thereafter they could not be questioned at all.
It is also contended before us that the Rules did not affect the bus operators at all and that they can have no legitimate grievance if they were finalised in the manner done. It was further contended that it was a matter for the Government to determine how much time should have been given by it for the submission of objections or suggestions and that it was hardly for the court to go into this question and that in any case the time given was perfectly adequate. It was also submitted in this connection that the introduction of Chapter IVA in the Act was a sufficient notice to everybody concerned, and that the Rules were merely procedural.
Developing the argument on the same lines, it was further contended that Section 68-B of the Act of 1939 had an overriding effect and, therefore, the Rules as framed could not be refused effect notwithstanding anything inconsistent therewith contained in Chapter IVA of the Act or in any other law for the time being in force. For all the reasons mentioned above therefore it was equally strenuously contended on behalf of the State that the grievance raised by the petitioners was without any substance, and the writ applications deserved to be dismissed.
4. The principal question which emerges for determination out of the pleadings set out above is whether the Rules of 1959 are made in accordance with law.
5. For a proper determination of the question set out above, it is necessary to remember the provisions of Section 133 of the Act of 1939. The material portion of this section reads as follows:
'133 (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.'
6. It is clear, therefore, that in order that any rules under the Act of 1939 can be validly made, they are subject to a pre-condition, namely, that they can be made only after previous publication. Sub-section (2) then provides that all the rules made under this Act shall be published in the official Gazette and that ordinarily they will come into force from the date of such publication unless some later date is appointed therefor. In order to understand the precise meaning of the expression 'previous publication', reference must be made to Section 23 of the General Clauses Act, 1897.
But before we consider that section which lays down the procedure to be followed in the matter of previous publication, we may as well refer to Section 68-I of Chapter IVA which lays down that a State Government may make rules for the purpose of carrying into effect the provisions of this Chapter, and it is further provided in particular and without prejudice to the generality of the foregoing part that such rules may provide, among other matters, for (1) the form in which any scheme or approved scheme may be published and (2) the manner in which objections may be disposed and so 6n and so forth. It was clearly conceded before us and in our opinion, rightly, that all rules made under Section 68-I would be subject to previous publication as laid down in Section 133 of the Act of 1939.
Now Section 23 of the General Clauses Act reads as follows:
'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 to be 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 on or after 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.'
Thus, previous publication means (1) the authority concerned must publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby; (2) the manner of publication is left to the authority concerned unless it has been otherwise prescribed by the Government; (3) along with the draft rules, a notice must also be published specifying a date on or after which the draft is to come up for consideration; (4) thte said authority must then consider any objections or suggestions which may have been received before the specified date; and (5) then after all these requirements have been fulfilled, the rules, or the bye-laws as the case may be, as finalised, must be published in the Official Gazette; and a contain, presumption then arises that the rules or bye-laws have been duly made.
Sub-section (5) of this section has been the subject of a good deal of debate at the bar of this Court. Relying on this provision, it was argued by the learned Advocate General on behalf of the State that once the Rules of 1959 which are impugned before us were published in the Official Gazette purporting to have been made in exercise of the power to make any rules after previous publication, they become conclusive proof that the rules have been duly made, and thereafter no further inquiry into the procedure followed in the making of the rules could be made by this Court.
On the other hand, it was contended with force On behalf of the petitioners that this subsection is ultra vires the Constitution and otherwise illegal if it gives arbitrary power to the Government to publish the rules in the official Gazette, even without substantially complying with the statutory requirements and without giving any adequate opportunity to the persons concerned to raise objections to them, and yet enables the Government to claim an irrebuttable presumption in their favour that the Rules have been duly made and that this would amount to a denial of the principle of the equal protection of laws enshrined in Article 14 of the Constitution. The petitioners placed their reliance in support of their submission mainly on a single bench decision of the Allahabad High Court in Raghavendra v. Municipal Board, Hapur, AIR 1959 All 192.
7. Now before we consider this aspect of the case, we may mention that as the question of the validity of Sub-section (5) of Section 23 of the General Clauses Act was raised before this Court on behalf of the petitioners, a notice was ordered to issue to the learned Attorney General and this was duly acknowledged by him although no appearance was put in before us on his behalf. Be that as it may, the first question to consider is what is the precise scope and effect of Section 23 of the General Clauses Act and whether it is ultra vires of the Constitution or is otherwise illegal.
8. No direct authority has been cited by learned counsel on either side which precisely bears on the difficult question which has been raised before us. We would therefore straightway proceed to a consideration of Section 23 of the General Clauses Act.
9. Now, what Section 23, broadly speaking, lays down is the content of the concept of previous publication as understood in our legal system. We have aheady enumerated the steps which it involves. And as we understand the section, its requirements are that, before the condition of previous publication can be held to have been lawfully satisfied, the competent authority must take the necessary steps mentioned in the section, that is, it must publish a draft of the proposed rules for the information of persons likely to be affected thereby, and the publication shall be made in an adequate manner obviously to ensure that these persons who are likely to be affected become aware of the draft rules.
The requirements do not stop here, for the section further goes on to lay down that, along with the draft, a notice must also be published specifying a date on which the draft will be taken into consideration, in the light of any objections or suggestions which may have been received before the date so specified, which clearly implies, though no particular time limit has been prescribed by the section, that the time allowed must be reasonable or in consonance with the just requirements of the situation. The reasonableness of the time to be allowed for this purpose may of course differ according to the circumstances of each particular case, and no hard and fast rule can possibly be laid down with respect to this, and the matter has to be left to the good seense and just discretion of the competent authority.
It is when these conditions are satisfied, that is to say, after the draft rules have been published for the information of those concerned, and an opportunity has been given to them to make their objections or suggestions with respect thereto, and the objections and suggestions so received have been considered that the rules are finalised and then published. When the rules have been so published in the official gazette, then Sub-section (5) of Section 23 provides that such publication shall be conclusive proof that 'the rules have been duly made'.
In other words, when the rules which are required to be made after previous publication, are finally published in the official gazette, this section raises an irrebuttable presumption of law that they were duly made. Now the contention of the learned Advocate General is that such publication creates an absolute bar against the courts going into the question whether the various steps set out above were taken or not, and therefore we must take it for granted that the necessary requirements were complied with.
10. If we may say so, with all respect, the language of this sub-section is not as explicit and felicitous as We should have liked it to be. The use of the expression 'duly made' seems to us, and, is apt to be, somewhat misleading. Does this, phrase properly mean that the publication of the rules, in the official gazette, which are. purported to have been made in exercise of the power to make rules after previous publication, is conclusive proof that the rules have been duly pre-published as required by law, and that once the factum of pre-publication in the official gazette is brought to the notice of the court, such pre-publication can no longer be questioned? Or, has this phrase been used in a wider and more comprehensive sense to mean and imply that the factum of publication in the official gazette invests the rules with an absolutely unassailable character as to their validity also, in the sense that they must be accepted to have been duly made, notwithstanding that they may be in excess of or repugnance with the Act under which they have been made or they may be otherwise invalid, and that even so, a ban is placed in the way of the courts so that they cannot examine and pronounce upon the validity thereof?
It seems to us that, on the wider of the two interpretations set out above, Section 23(5) would be bad or illegal as being violative of the very fundamentals of our judicial system and may be even unconstitutional. Now where two constructions are possible and one of these would make it ultra vires or illegal and the other not, the accepted principle of the interpretation of statutes is that the latter should be preferred. In other words, we should lean in the present case towards the construction that the presumption which has really been provided for under Section 23(5) of the Act of 1897 to be conclusive is that the rules were duly pre-published.
11. The difficulty, however, does not end here. The further question with which we are confronted is as to the inevitable consequence that appears to follow upon such publication that once the rules are so published in the official gazette, a conclusive presumption of law arises that the necessary requirements involved in the process of pre-publication as provided for in Sub-sections (1) to (4) of Section 23 have been gone through, and that this presumption is so peremptory that the law will not allow it to be overturned or displaced by any proof to the contrary howsoever strong and of any manner whatsoever. We have given this matter our most careful and anxious consideration and we feel constrained to have to say 'no' to this.
The powers of this Court as a court of judicial review under our Constitution are indeed unquestionable, and it is its bounden duty to see that the rules made under a statute are lawfully made, that is, made in just and substantial compliance with the essential procedure laid down for their enactment, and where it can be shown beyond all manner of doubt that the rules have been made in clear or flagrant violation of the essential statutory procedure prescribed by law or in a manner clearly opposed to the fundamental principles of natural justice, it can, nay, it would be its duty, as we understand it, to strike down such rules.
12. The narrow point to decide in this context is whether the powers of the court so to exercise its supervisory jurisdiction can be taken away by the legislature by enacting a rule of irrebuttable presumption, or as the provision which we are called upon to consider puts it, by creating an inflexible rule of 'conclusiveness of proof' that the rules were duly made no matter whether they were so made or not. Let us take an extreme example for it is by such examples that many a time the intrinsic merit of a difficult question like this can best be evaluated.
Suppose the authority competent to make rules, where such rules can only be made by the process of previous publication set out above, somehow forgets to publish any draft in the gazette, so that no objections are invited or considered, and finally publishes them in the Gazette, and in such circumstances the question arises whether the rules are duly made, would this Court be rendered powerless to strike down the rules because of the rule of conclusiveness of proof laid down under Sub-section (5) Our answer is an emphatic 'No'.
Let us somewhat vary the illustration we have given above and assume that the draft rules are published in the Gazette by the Government, and one or two days' time is given for filing the objections and that such time is entirely inadequate to enable objections to be filed and the rules are then finally published and sought to be enforced. Should it be accepted in a case of this character that the rule laid down in Sub-section (5) of Section 23 effectively shuts out any enquiry into the manifestly illegal procedure adopted by the authority concerned in the making of the Rules and that this Court must accept the rules as validly made.
13. Speaking for ourselves, we have no doubt that this Court cannot and ought not to be rendered powerless by a provision like Sub-section (5) of Section 23 to strike down the Rules where they have been made by the authority to whom the Legislature has delegated such power, in their violation of statutory procedure or of the fundamental requirements of the rules of natural justice.
14. We may here refer to a few decided cases which though not exactly on all fours with the case before us appear to us to throw considerable light on the question we are called upon to consider.
15. The first case to which we propose to refer is the single judge decision of the Allahabad High Court in AIR 1959 All 192, on which considerable reliance has been placed on behalf of the petitioners before us. The facts in that case were as follows. The Municipal Board of Hapur had decided to impose a water-tax on the inhabitants living within the limits of that Board. The validity of this tax was challenged by a writ application on the ground that certain provisions of the U.P. Municipalities Act (No. II) of 1916 had been contravened.
The procedure which was required to be followed for the imposition of this tax or other similar taxes appears to have been laid down in Sections 131 to 135 of the Act of 1916, and the proposals were required to be published in the manner prescribed under Section 94 of the Act, and various breaches of the statutory provisions were alleged and held to he proved. The effect of these substantial breaches was sought to be met by the Board by the provision container in Section 135(3) of the Act of 1916 which reads as follows:
'A notification of the imposition of a tax under Sub-section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act'
It was thus contended that the publication of the notification in the U.P. Gazette that the impugned tax had been imposed was an irrebuttable proof of the position that the tax stood imposed in accordance with law and that thereafter it was not open to any one to challenge it. The learned single Judge held that Section 136(3) of the U. P. Municipalities Act violated Art. 14 of the Constitution inasmuch as it absolutely debarred an inhabitant of a municipality, if a municipal tax was demanded of him, from seeking redress from a court of law by showing that the tax was unlawfully imposed. The learned Judge further held that even if Section 135(3) of the Act of 1910 was constitutionally valid, the collusiveness of proof declared by it could not apply to the facts of the case inasmuch as no lawful foundation for the issue of the notification under Section 135(2) had been laid. In this view of the matter also, the learned Judge came to the conclusion that the imposition of the water-tax by the Board was unlawful.
This case, with all respect, seems to us to be slightly different from the case before us because it pertained to a matter of taxation which to be constitutionally valid must have been imposed in accordance with law according to Article 265 of the Constitution, and Section 135(3) of the Act of 1916, in so far as it completely debars an aggrieved inhabitant from testing the validity of the tax imposed on him, howsoever illegal it may be, would seem to be unconstitutional. The case before us is somewhat of a different character and relates to the questionability of certain rules made by Government in exercise of their statutory authority.
16. The next case is an earlier case of the same Court Azimulla v. S.K. Singh, AIR 1957 All 307 wherein another learned single Judge held, where octroi duty had been enhanced and was sought to be protected under Section 135 of the U.P. Municipalities Act of 1916, that where the very foundation of the authority given under Section 135 was lacking, namely, the existence of a special resolution under Section 134 of the said Act, then the notification of any alleged special resolution was quite outside the competence of the State Government or the prescribed authority, and that in such a case, despite the notification, there was no collusiveness in regard to the procedure under the Act having been followed.
The principle which was recognised in this case was that notwithstanding the provision contained in Section 135(3) of the Act in question, if the imposition was ultra vires or if there was a failure to comply with the pre-requisite stages necessary to the imposition of a lax, then the mere publication of the alleged resolution in the Gazette cannot shut out an enquiry as to whether the provisions of the Act had been complied with. It will be noticed that the question of the constitutionality of Section 135(3) of the U. P. Municipalities Act of 1916 was neither raised nor decided in this case.
17. Yet another case to which we may refer is Radha Raman v. State of U. P., AIR 1954 All 700 which arose under the U. P. Land Acquisition Act of 1894. A notification was issued under Sections 4 and 5 of the said Act that the Governor was of the opinion that the land was needed for a public purpose and anybody interested in it may file objections within 30 days of the publication of the notice. The purpose of acquisition was notified as the construction of a residential house for a certain Co-operative Housing Society.
The petitioner raised the objection that the purpose for which the land was acquired was not a public purpose at all. Section 6 of the said Act provided that when the State Government was satisfied, after considering the report made under Section 5-A of the Act that any particular land was needed for a public purpose or for a company (which term includes a society registered under Cooperative Society's Act), a declaration shall be made to that effect. It was further provided in this section that when this declaration was published in the official gazette, it would be conclusive evidence of the fact that the land was needed for a public purpose or for a company.
It was held by the High Court that the land was needed for a public purpose within the meaning of Section 5-A of the Act. The other question which was further canvassed before the Court--and that is important for our present purposes--was whether the decision of the State Government under Section 5-A could be challenged at all as it was made final and conclusive evidence of the tact that the land was needed for a public purpose. It was held that, even before the Constitution came into force, the power to issue a writ of certiorari could not be held to have been taken away by the provision that such decision was final, and that after the Constitution came into foroe, no legislature has the authority to take away a power conferred on the courts by the Constitution.
18. Our attention was drawn by the learned Advocate General to a recent Bench decision of this Court in Civil Writ No. 313 of 1959, D/- 18-3-1960: (AIR 1962 Raj 19) Maula Bux v. Appellate Tribunal of State Transport Authority, Jaipur. One of the questions raised in that case was that the State Government while amending Rule 108 of the Motor Vehicles Rules failed to follow the procedure laid down by Section 23 of the General Clauses Act inasmuch as in the draft rule which was published there was no mention of the person who was to be appointed as Chairman of the Appellate Tribunal, whereas in the rule as finally published it was laid down that the Transport Minister was to be its chairman.
It was contended by the State that the rule did not become invalid merely because of the said change. It may be pointed out that the draft rule was published for inviting objections in the official gazette dated the 30th May, 1959, and the final rule in which it was provided that the Transport Minister would be the Chairman, was published on the 21st July, 1959. Now, it clearly appears from the facts mentioned in the judgment of this case that the main contention which was pressed before the bench was that the Government had no authority to make any change in the draft rule as no objections had been received to it and therefore the provision as to the Transport Minister being the chairman was unlawfully made.
It was held, and if we may say so, with respect, rightly that it was open to the Government to make rules with or without changes in the previously published subject to the condition that the rule so made was not really foreign to the draft. The court further held that the change was incidental and therefore the objection that the constitution of the Appellate Authority was illegal as the Transport Minister was appointed its Chairman was without any substance. It was further laid down however after the above finding was given that under Sub-section (5) of Section 23 of the General Clauses Act, a conclusive presumption arose after the publication of the impugned rule in the official gazette, that the procedure for making such rule had been followed, and that the petitioners were debarred from questioning the irregularities, if any, in the previous publication of the amendment.
This case, to our mind, is entirely distinguishable on facts from the case before us. The draft rules were published and ample time was given for the filing of objections thereto. It was already mentioned that the Transport Minister was to be one of the members of the Tribunal. The main point of controversy was whether the change made by the Government so as to make the Transport Minister Chairman of the Appellate Tribunal was or was not illegal as no mention of this was made in the draft rule. The bench held that the change was within the scope of the rule and could have been made.
This case, with all respect, cannot be taken as authority for the broad position contended for by the State that the draft rules need not have been published for inviting objections at all, and that even though they were published and the notice under which they were published did not afford any reasonable or adequate opportunity to the persons concerned for filing their objections,--still the rules must be accepted to have been duly made because they had been finally published in the official gazette under Section 23(5) of the General Clauses Act and that therefore this Court would be entirely powerless to question and strike down the rules in the exercise of its high writ jurisdiction even where the rules are proved to have been made in a manner which is wholly illusory and is in flagrant breach of the provisions of Section 23 itself.
19. In Parry and Co., Ltd., v. Commercial Employees Association, Madras, AIR 1952 SC 179, the question arose before our Supreme Court whether Section 51 of the Madras Shops and Establishments Act No. 56 of 1947 which reads as follows, would deprive the High Court from exercising its writ jurisdiction on the ground that the decision of the Labour Commissioner has been made final and not liable to be questioned in any court of law.
'Section 51. If any question arises whether all or any of the provisions of this Act apply to an establishment or to a person employed therein or whether Section 50 applies to any case or not, it shall be decided by the Commissioner of Labour and his decision thereon shall be final and shall not be liable to be questioned in any court of law.'
Their Lordships of the Supreme Court, although they did not make any pronouncement on the point as it was not necessary to do so under the circumstances, seem to us to be definitely inclined to the view that notwithstanding such statutory provisions the High Court would not be deprived of its power to issue a writ under the Constitution where a proper case was made out for that purpose and reliance was placed in this connection on Colonial Bank of Australasia v. Willan, (1874) 5 PC 417.
20. A similar question again came before their Lordships of the Supreme Court in Lila Vati Bai v. Bombay State, (S) AIR 1957 SC 521 in a case under the Bombay Land Requisition Act (No. XXXIII) of 1948. The petitioner was a widow of a tenant of the premises in question. The Government of Bombay being of the opinion that the premises had fallen vacant on the death of the tenant and thereafter they had been handed over by his widow to another issued a notification requisitioning the premises for a public purpose namely for housing a Bombay State Government servant. Among other questions which were raised before the Supreme Court, one question was that Sections 5 and 6 of the Act had enacted that certain declarations made under these Sections would be conclusive evidence of certain facts. Now what their Lordships observed as to this contention was as follows:
'The Act has made a specific provision to the effect that the determination on the questions referred to in Sections 5 and 6 of the Act by the State Government shall be conclusive evidence of the declaration so made. But that does not mean that the jurisdiction of the High Court under Article 226 or of this Court under Article 32 or on appeal has been impaired. In a proper case the High Court or this Court in the exercise of its special jurisdiction under the Constitution has the power to determine how far the provisions of the statute have or have not been complied with'
though their Lordships further proceeded to point out that the extraordinary powers of the Court would not extend to reopening a finding of fact under Section 5 of the Act of 1948 that the tenant has not actually resided in the premises for the continuous period of six months immediately preceding the date of the order or under Section 6 that the premises had become vacant at about the time indicated in the order impugned.
21. In this connection, the following passage from Craies on Statute Law at page 273 (Fifth Edition) may be here quoted with advantage:
'The initial difference between subordinate legislation and statute law lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that courts of law as a general rule, will not give effect to the rules etc. thus made unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the Courts; the validity of delegated legislation as a general rule can be.
The courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with statutory authority unless the statute directs them to be judicially noticed; (2) in the absence of express statutory provision to the contrary may enquire whether the rule making power has been exercised in accordance with the provisions of the statute by which it is created either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, it any, attached to the regulation; and it follows that the court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials.'
Now, we fully appreciate the force of the phrase 'in the absence of express statutory provision to the contrary' in the above passage; but, we should like to point out, that, as we have discussed at length above, under our Republican Constitution, notwithstanding such an express provision to the contrary, the High Courts, having regard to the high writ or allied supervisory jurisdiction in the nature thereof which has been assigned to them under Articles 226 and 227 thereof, do and would possess the power, where a proper and clear case has been made out, to embark on an enquiry as to whether the subordinate law-making authority (be it the executive Government of the State or any other) has failed to comply with what are the statutory essentials in making the rules, and it inevitably must follow that where a clear and grave breach of compliance with such essentials has occurred, the courts will reject the rules so made as invalid and ultra vires.
22. The correct legal position, therefore, in our opinion, is that notwithstanding that the legislature may attribute finality to the decisions of subordinate courts or tribunals, or what is analogous, invest the final publication of certain statutory rules in the official gazette with the quality of conclusiveness of proof that the rules have been duly made in the sense already discussed, the jurisdiction of this court as a court of judicial review, and as possessed of extensive writ jurisdiction under Article 226 of the Constitution cannot be taken away, and where a proper or grave case is satisfactorily established that a decision is manifestly contrary to law or has been made wholly or partly in excess of jurisdiction, or in flagrant disregard of judicial procedure, or the fundamental requirements of natural justice; or, again, where certain statutory rules are made, (and they could have been made subject to previous publication only) by the Government or by any other authority in the exercise of a delegated authority, but they have been made in manifest and substantial breach of the statutory essentials thereof, then the rule of finality attributed to such fiats by the legislature cannot be accepted as barring the exercise of the powers of this Court under the Constitution to see whether the rules were lawfully made or not: and, it would be its privilege, nay, bounden duty to go behind this facade of finality in either case and strike down the decision or the rules as the exigencies of the case may justly require. We hold accordingly.
23. Viewed in the light of the test We have laid down above, let us see whether the presumption as to the conclusiveness of proof that the Rules of 1959 had been duly made (in the sense we have explained above) does properly arise and can be held to be binding on the Court, having regard to all the circumstances of this case. As we have already stated above, the draft rules were published in the State Gazette on the 9th December, 1959. A week's time was allowed by the Government for the filing of objections and suggestions by the persons for the information of whom these Rules were avowedly published, and who were likely to be affected thereby.
The extreme position taken by the respondent State in its reply that it was entirely unnecessary to invite any objections to the draft rules, and that they c6uld be passed without the statutory procedure having been adopted has only to be stated to be rejected outright. Furthermore there is material on the record to hold that the Gazette containins the draft rules reached the public including the bus operators round about the 15th or 16th December, 1959, and we can see no justification to disbelieve this allegation. There is no satisfactory counter-allegation on the side of the State in this connection either. The day fixed by the State Government for the consideration of the draft rules was the next following date after the expiry of seven clear days namely the 17th December.
As soon as some of the petitioners came to know of these rules, they sent telegrams to the Secretary to the State Government in the Transport Department telling him that they had received the draft rules only about the 15th or 16th and that it was impossible for them to submit any objections before the specified date and that the matter was of importance and, therefore, sufficient time should be allowed to them for making their submissions. No heed was paid to this, and the draft rules Were finalised on the same date, namely, the 17th, and published in the official Gazette on the next following day, namely, the 18th December, and became law forthwith. aS we have already stated above, we are fully conscious that Section 23 does not specify any particular period of time which should be given by the rule-making authority between the publishing of the rules and the filing of the objections; but even so, according to rules of justice, equity and good conscience, the time allowed should have been reasonable.
How can it be said in the circumstances of this case that the week's time allowed by the State Government was adequate, reasonable or in accordance with the just requirements of the situation? 'No' is our answer to this question. For the object of pre-publishing of the rules was obviously to inform the travelling public as well as the bus operators throughout Rajasthan about them, and having regard to the means of transport and communications such as we have in our State, we cannot but come to the conclusion that the time allowed was miserably small and did not afford any opportunity worth the name on the part of the persons concerned to make their objections to the Rules for which object indeed they were published and are required to be published by the law.
It follows from what we have stated above that no valid base can be found in the present cases for raising the presumption of conclusiveness under Sub-section (5) of Section 23 of the General Clauses Act that the Rules were duly made, that is made in accordance with the procedure prescribed in the matter of previous publication. In other words, the position is that there has been no previous valid publication of the Rules, and if that is so, Section 133 of the Act has been violated and the Rules cannot survive.
24. It would be convenient at this stage to deal with the further argument of the learned Advocate General on this aspect of the case that it is not the business of this Court to canvass the question of sufficiency of time, and that this matter was for the State Government to decide, and, if, an their discretion they thought that seven days' time given for the filing of the objections was sufficient, this Court should not interfere with the exercise of such a discretion. We have given our anxious consideration to this contention and find ourselves unable to accept it. As we look at the matter, it is a question for this Court to decide, and not for the Government, whether the presumption arising under Sub-section (5) of Section 23 of the General Clauses Act can be raised in the circumstances of these Rules or not. That is undoubtedly a question of law and this Court cannot divest itself of its responsibility to decide such a question.
Then again it is a matter for consideration whether the State Government at all exercised their discretion in the matter of the fixation of time within which the objections were to be invited. While v/e mean no disrespect to any one concerned, we, cannot help saying that no thought seems to have been given to this question, and if at all thought was given to it, the time given, for the filing of the objections, having regard to all the circumstances of the case to which we have made detailed reference above, was too pitifully short that even if we were to assume that the authority concerned did consider this matter, the decision arrived at seems to us to be so arbitrary as to amount almost to a complete non-exercise of any sound or judicious discretion.
We therefore cannot help coming to the conclusion that the requirement of pre-publication. of the Rules, according to the combined effect of Section 133 of the Act of 1939 and Section 23 of the General Clauses Act of 1897 has been substantially disregarded in the making of the impugned Rules, and, therefore, they cannot be held to have been validly enacted.
25. The learned Advocate General made a strenuous effort to get round the aforesaid result by arguing that Section 68-B of the Act of 1939 gives overriding effect to the Rules made under Chapter IVA and that they must receive force notwithstanding a defective pre-publication. Section 68B is in these terms:--
'The provisions of this Chapter and rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law.'
The language of this section is quite clear and it has no bearing whatever on the question we are called upon to consider. Nor does Chapter IVA in which Section 68B and the allied sections relating to the nationalisation of road transport service find place. contain any rule dispensing with the requirement of 'pre-publication' of the rules made thereunder. Therefore, the requirement of pre-publication as to the rules to be made under this chapter cannot be said to be inconsistent with anything contained in this chapter. In fact, the learned Advocate General himself conceded that the application of Section 133 of the Act was not excluded so far as the rules made under this Chapter were concerned; but he strenuously pressed that even so, Sub-sections (1) to (4) of Section 23 of the General Clauses Act would not be attracted into application in any consideration of the validity of the impugned rules. We have no hesitation in saying that this argument is without any substance.
It is indeed unquestionable that Chapter IVA does not contain anything which may be said to be inconsistent with the aforesaid provisions of Section 23 of the General Clauses Act. Again, according to the learned Advocate General himself Section 68B does not dispense with the applicability of Section 133 to any rules made under this Chapter. We cannot see how if Section 133 applies, as it does, the requirements of previous publication which are defined in Section 23 of the General Clauses Act can be avoided. The moment Section 133 applies, it inevitably attracts the further application of Section 23 of the General Clauses Act. That being so, we are clearly of opinion that Section 68B does not affect the conclusion at which We have arrived above in any manner.
26. Lastly, it was argued that even if we came to the conclusion that the requirements of previous publication were not complied with in the enactment of the impugned Rules, no interference was called for in this case because the petitioners are not affected by them in any way and that they have no right to raise objections to them and that the Rules are merely procedural and they are merely a reproduction of the provisions contained in Chapter IVA introduced into the Act of 1939 by Act No. 100 of 1956 and that what really matters is the scheme or schemes initiated under the Rules which have been already published, and it is and would be open to the petitioners to raise their objections to them if they should care to do so.
We have not felt impressed by this line of reasoning. It seems to us going too far to say, in the first place, that the bus operators who are holding valid permits over the various routes in this State, which may fall to be nationalised, are not affected by the introduction of these Rules, because these Rules provide the frame-work within which any scheme of nationalisation of road transport service will have to be fashioned and fitted. We are perfectly prepared to accept that the petitioners may not be the only persons who are likely to be affected by the Rules, but they certainly would be among those who are bound to be affected thereby, and they cannot be dismissed as persons entirely unconcerned.
In the second place, before any rules can be lawfully framed under the Act, their 'draft is as a matter of law required to be pre-published and objections have to be invited and therefore the policy of the Legislature unmistakably is to give the persons likely to be affected thereby a reasonable opportunity to make their objections to them. The petitioners clearly appear to us, therefore, to have a statutory right, to raise any objections which they think fit to raise; and not only that, the statute further provides that a due and reasonable opportunity should be given to them to raise such objections and the same must receive consideration at the hands of the competent authority.
Again, some of the rules may be a mere reproduction of the provisions of Chapter IVA of the Act, but we cannot possibly accept that the Rules are no more than that or that they do not make provision for some matters of importance. In this connection, we may draw attention to rule 7 whereunder a particular officer is appointed to hear the objections raised by those concerned in which connection a good deal of argument was raised at the bar of this Court. There are other provisions in the Rules which are also of some importance; but it is unnecessary to refer to them in detail here.
It is sufficient to point out that the petitioners among others being persons likely to be affected by the rules have a right granted to them under the statute to raise objections to them, and we see no valid reason why they should be deprived of this right simply because the Government seem to think that this right is of no value or that in their opinion the deprivation thereof does not amount to anything substantial. We accordingly see no force in these objections and overrule them.
27. The net result of the aforesaid discussion is that the impugned Rules of 1959 do not appear to us to have been validly made for want of substantial compliance with the provisions of Section 133 of the Act of 1939 read with Section 23 of the General Clauses Act, 1897, and, therefore, they are illegal and inoperative.
28. Having regard to the clear conclusion we have come to on this aspect of the case, we do not consider it necessary to enter upon a derailed examination of the submission made on behalf of the petitioners that Section 23(5) is bad on the ground of its being violative of the principle of equal protection of laws enshrined in Article 14 of the Constitution, and we have no desire to make a considered pronouncement on this point. All that we may say, however, is that, as at present advised, we have not felt impressed by this line of reasoning.
For, in the first place, it is well established that, though class legislation is not, reasonable classification is permissible under this Article and that being so, it would be open to the Legislature to make a separate group of Rules which are to be made subject to previous publication and to lay down a special procedure with respect to this group of such rules. It is true that a further rule of conclusiveness is then enacted in case of all such rules consequent upon their publication in the official gazette. The object behind this requirement seems to be to avoid an enquiry into the procedure followed in the making of the rules in the interests of smooth and speedy administration of the rules. The object cannot be said to be entirely unreasonable having regard to the circumstance that the Rules, to which objection is sought to be taken, may have been made several decades before they may actually come to be challenged.
As for the argument that the discretion left to the Government in the matter of the final publication of the Rules is entirely arbitrary or uncontrolled, that also appears to us to be not having much force because the various steps set forth in Sub-sections (1) to (4) of Section 23 which in the contemplation of the Legislature must have been duly taken would be found to contain sufficient guidance For the authority concerned in the matter of the final act of publishing the Rules, and it is then that the presumption of conclusiveness is intended to arise. It further seems to us that where the publication of the rules is made without the requisite care, or may be, with mala fides in a particular case, what in our view should thus fall to be struck down is not the provision in question but the misapplication thereof in a particular case. We would however, not pursue the matter further and leave it at that.
29. Having regard to the conclusion at which we have arrived above, we consider it unnecessary to deal with the criticism which has been raised at the bar of this Court against some of the provisions contained in the impugned rules as in the view which we take, the draft rules will have to be re-published and reasonable time (which, if we may say so with all respect, seems to us would be a month's time) allowed to the petitioners to enable them to raise their objections to the Rules so published, and it may be that as a result of the objections, criticisms and suggestions which may be received as to these Rules, the Government themselves may feel persuaded to make suitable changes in them.
We may point out in this connection that the learned Advocate General invited us to express our view On the criticisms levelled by the petitioners at some of the rules, and we were at one time inclined to accede to his submission, but on closer consideration, we have come to the conclusion that it would not be right or proper for us to do so, once we have formed the opinion that the impugned rules have not been validly made and are illegal and of no force. This Court is only concerned to interpret the law, and if it finds that it is valid, it would proceed to apply the same; but where it finds that the law is not valid, then it is properly not its business, under such circumstances, to enter upon a discussion, or, to advise what the law should be. We have, therefore, come to the conclusion that it would not be right or proper for us to deal with the particular criticisms raised at certain specific Rules before us.
30. The result is that we allow these petitions and strike down the Rules of 1959 as having not been made in accordance with the essential statutory procedure which was and is a condition precedent to their valid enactment. With these Rules, the scheme or schemes framed thereunder must also fall. It is hardly necessary for us to add that nothing that we have said here shall prevent the Government from making the rules in accordance with essential statutory requirements and in due course giving effect to a scheme or schemes for the nationalisation of road transport on the routes involved in these petitions in accordance with law. The etitioners will have one set of costs from the respondent State in each case.