1. These are related appeals from the judgment of Ramachandra Iyer J. (as he then was) in petitions before mm for the issue of a writ of certiorari or other appropriate writ, raising certain important issues relating to the consequences of nationalisation of transport routes under un. IV-A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act). More particularly stated, the issues were whether Section 68-G(2) of the Act, under which an otter of alternative routes could be made to those operators whose permits had been cancelled in implementation of a scheme of nationalisation, was or was not violative of Articles 14 and 19(1)(g) of the Constitution; and further, whether the Government could issue specific directions to the State Transport authority under Section 43(1)(d)(iii) of the Act, directing the issue of alternative permits to such operators whose permits had been thus cancelled. We shall refer a little later, in detail, to the context of facts in relation to which these writ petitions were filed. We may now briefly note that the learned Judge Ramachandra Iyer J. held that Section 68-G (2) was valid, that Section 43 (1) (d) (iii) did invest a power in Government to issue such specific directions, that both the offer under Section 68-G (2) as well as the directions under Section 43 (1) (d) (iii) were acts of administrative and not quasi-judicial character and hence mat the permits granted to the respondents were valid. The rule nisi was discharged, and the petitions were dismissed.
2. We propose, at the outset, to refer to the fads in W.A. Nos. 19, 35 and 36 of 1961, as they comprehensively outline the context in which the proceedings have arisen. On 30-12-1959, the Government approved schemes under Ch. IV-A nationalising the routes (i) Madras to Lattice Bridge operated by Associated Transports Madras (Private) Ltd, one of the respondents, (ii) Madras to Villivakkam, similarly operated by Presidency Transports (Private) Ltd., Madras, another respondent. On the same date, the permits of these respondents on these routes, which were due to expire on 31-12-1959, were cancelled by the Regional Transport Authority, Chingleput. Again on the same date the State Transport undertaking was granted permits on the routes Madras to Lattice Bridge and Madras to Villivakkam, which had been nationalised. On 12-8-1960, the Government issued Government Order Ms. No. 2395 (Home) declaring a new route from Trivelore to Perambakkam, by virtue of their powers under Section 43-A(2) of the Act.
It must be here stated that Trivellore to Perambakkam is a segment (10 miles) of the route Trivellore to Kancheepuram (41 miles), upon which the appellant in W.A. No. 19 of 1961 was plying buses as an existing operator with a permit. Admittedly, notice was not given to this appellant and he was not heard before the new route was declared by the Government; this, as we shall see later, is one of the important grounds of objection in the appeals. On 17-8-1960, the Government published a draft notification under Section 43(1) (d) (iii) of the Act embodying proposals to grant permits on the new route, Trivellore to Perambakkam, to each of the two respondents referred to already, who might be characterised as displaced permit holders. On 12-9-1960, the appellant in W. A. No. 19 of 1951, filed objections to this course, which were heard on 11-10-1960, by the Secretary, Home Department, and finally on 15-10-1960, Government Order Ms. No. 2363 was issued directing the State Transport authority to direct the Regional Transport Authority, Chingleput, in its turn, to grant the two permits.
3. The facts in W.A. Nos. 35 and 36 of 1961 were very similar. On 28-8-1957, a draft scheme was published under Ch. IV-A proposing the nationalisation of the route Madras (Mint) to Red Hills, in which two buses were operated by one of the respondents (Ekambaram Chettiar). On 29-1-1938, the Government approved the draft scheme in Government Order Ms. No. 253 Home. The existing permits of the respondent were due to expire on 31-1-1959, but, under Section 62 of the Act, he was granted temporary permits for four months to maintain the continuity of service. On 19-02-1959, the Government Order Ms. No. 490 Home was issued as a direction under Section 43-A (2) of the Act opening a new route, Madras to Sholinghur. On 4-3-1959, Government Order Ms. No. 575 Home, was published, as a draft direction under Section 43 (1) (d) (iii) for the grant of two permits on the new route to the respondent (displaced permit holder), and inviting objections. The appellant filed objections. On 11-6-1959, these were heard by the Secretary, Home Department. On 9-7-1959, the Government Order Ms. No. 1974, Home, was issued, approving the draft direction. On 19-8-1959, the State Transport Authority offered alternative permits on the new route to the respondent, and on 11-9-1959, a timings conference for the route, Madras to Sholinghur, was held by the Regional Transport Autnority, Chingleput. On 17-9-1959, W. P. No. 837 of 1959 was filed, and the respondent's pre-existing permits were can-celled on 21-9-1959. We may briefly note that the facts in W. A. No. 41 of 1961 were very similar, the respondent (Ekambaram Chettiar) holding two permits as an operator in the route, Madras (Mint) to Red Hills which was nationalised; after which the Government directed (under Section 43 (1) (d) of the Act) the State Transport Authority TO direct the Regional Transport Authority, Vellore, in turn, to grant two permits on the route Madras to Sholinghur newly declared in G.O. Ms. No. 40 dated 19-02-1959, to the respondent in lieu of the two pre-existing permits cancelled under the scheme of nationalisation.
4. We may immediately proceed to a scrutiny of the main grounds upon which the appeals are pressed. This is all the more necessary because, though in substance, the attack has been the same as that pressed before the learned judge, Ramachandra Iyer J. the form and emphasis of the arguments have varied to a certain extent. For this reason it is also necessary to note, however briefly, the main grounds on which the learned Judge actually proceeded to dismiss the writ petitions. After completing this part of the scrutiny, we shall proceed to a schematic analysis of certain inter-related provisions of the Act, setting them forth in their entirety. This procedure is likely to elucidate the actual principles of law in their application to the instant facts, which have been ,stated and pressed before us, and the citations of case law made during the arguments.
5. The main grounds of the appeals before us, which are common to all of them, are these. Firstly, the power to grant an alternative permit to a displaced permit holder under Section 68-G (2) is an arbitrary and unchannelled power violative of Article 14 of the Constitution. Again, this power is not a reasonable restriction on the fundamental rights of other operators already plying their buses on this alternative route and hence it offends Article 19(1)(g) of the Constitution, interpreted in the light of the proviso to Article 19(6). Next, this is a quasi-judicial power, to be exercised by the Regional Transport Authority alone and the issue of specific directions to this authority to grant alternative permits on the new route to displaced permit holders isdestructive of the judicial discretion vested in the authority, and hence illegal.
Again, if Section 68-G(2) is to be interpreted as not violative of Article 14, this can only be upon the presumption or argument that the Government must issue under Section 43 (1) (d) (iii) of the Act, general directions concerning the kind of alternative permits to be granted, and the principles of the exercise of this choice; specific directions for issue of permits to named individuals are totally illegal. Rule 294-1 of the rules framed by Government under the Act, which has been cited in the judgment of the learned Judge, is ultra vires of the powers of the Government; nor could the Government direct that the procedure under Sections 47 and 57 of the Act might be abrogated with respect to the grant of such alternative permits.
Further, the order of the Government under Section 43-A (2) declaring the new route is illegal, as it was made without hearing the concerned party already plying buses on the route in question. This arises with special reference to W. A. No. 19 of 1961, and as it evolved, during the course of arguments, is a major ground of attack. This does not seem to have been the case, as far as the arguments before the learned Judge, Ramachandra lyer J. were concerned. There are one or two other minor grounds. Though not in W. A. No. 19 of 1961, the facts with regard to two other appeals show that the actual order granting permits to the displaced permit holders (respondents) was passed by the Minister, while the hearing was by the secretary, Home Department. This, it is alleged, vitiates the exercise of the power.
Again, the actual cancellation of the pre-existing permits must be regarded as a condition precedent to the grant of alternative permits. But, as the facts and the dates set forth by us earlier will show, this rule was not adhered to; nor was the rule strictly adhered to under Section 57 (2), that the application for a stage carriage permit must be made six weeks before the date on which it is desired that the permit shall take effect, unless the Regional Transport Authority fixes specific dates. But, admittedly, these are grounds of quite subsidiary importance. If, upon the main arguments advanced, the dismissal of the applications for the issue of a writ of certiorari could be sustained, these matters, by themselves, could help or advance the claims of the appellants very little.
6. In order to show how the form and range of the arguments have developed, we might refer, quite briefly, to the judgment of the learned Judge, dismissing the applications. The learned Judge sets forth the facts at the outset, and then points out that the validity of the scheme of nationalisation was not challenged before him, nor was the decision of the Government impugned as a mala fide exercise of their powers. The learned Judge then proceeds to refer to an objection by the learned Advocate General for one of the respondents, of the right of the petitioners to invoke the jurisdiction of the Court under Article 226 of the Constitution.
After a discussion of this aspect, the learned Judge proceeded to hold that the true principle was that stated by the learned Chief Justice in M/s Swami Motor Transport (Pr.) Ltd. v. Raman and Raman (Pr.) Ltd., W.A. No. 125 of 1957: : AIR1961Mad180 , namely, whether the particular operator was aggrieved, in the sense that he had an interest distinct from the general inconvenience which might be suffered on account of the application of the relevant principles of law. Since in substance, the offer and acceptance of these alternative permits did affectthe interest of the appellants, who were pre-existing operators on these newly declared routes, the learned Judge held that the objections were maintainable under Article 226 of the Constitution. After a discussion of the relevant provisions of the Act, in the light of the cited authorities, the learned Judge finally held that Section 68-G (2) was not ultra vires of the Constitution, that it was not a quasi judicial out an administrative power, that the Government could issue administrative instructions under Section 43 (1) (d) (iii) for otter of alternative permits to specific individuals, that that was also an administrative power or function, and that the other objections to the issue of permits were not valid.
Before us, the emphasis has somewhat shifted, focussing attention upon these two main aspects. Firstly, the Government could not declare any new route under Section 43-A (2) without hearing the pre-existing operators upon any part of such routes. The principles of natural justice are violated when this canon of audi alteram partem is not adhered to. Again, this is a quasi judicial power, and not an administrative power. Hence, as far as W.A. No. 19 of 1961 at least is concerned, the appeal ought to succeed. Next, Section 68-G (2) would be clearly violative of Article 14, unless Section 43(1) (d) (iii) is construed as an obligation to issue general directions, fixing the principles of the exercise of the power under Section 68-G (2). In exercise of a power under Section 68-G (2), when such a notification of the principles of choice among displaced permit holders for the offer of alternative routes, is itself invalid under Article 14 as an unchannelled power, such a direction is doubly invalid, when, instead of declaring these principles, it commands the Regional Transport Authority to issue permits to specific individuals. Since the deqision was not that of the Regional Transport Authority, who alone is clothed with the power and discretion under Section 68-G (2), the grants of permits are invalid and in the present case, Section 68-G (2) would be equally violative of Article 19(1)(g), as the power has been exercised, upon the present facts. These are the main arguments, which do involve a close scrutiny of the scheme of these provisions, and their inter-relationship within the framework of the Act.
7. We shall hence commence by setting forth all the relevant provisions which concern us in these appeals, not in their numerical order, but in the logical order with reference to the arguments as actually developed by the learned counsel. Section 68-G (2) runs as follows:
'Notwithstanding anything contained in Sub-section (1), no compensation shall be payable on account of the cancellation of any existing permit or any modification of the terms thereof, when a permit for an alternative route or area in lieu thereof has been offered by the regional transport authority and accepted by the holder of the permit.'
Section 68-G (1), which need not be cited here, refers to the grant of compensation for displaced permit holders, and Section 68-G (4) and Section 68-G (5) together with the explanation, elaborate the working principles on which compensation is to be assessed. They will be found set forth in the judgment of the learned Judge, and it is not necessary to reproduce them here.
8. Section 43 of the Act runs as follows:
'43. (1) A State Government, having regard to--(a) the advantages offered to the public, trade and industry by the development of motor transport, and (b) the desirability of co-ordinating road and rail transport, and (c) the desirability of preventing the deterioration of the road system, and (d) the desirability of preventing uneconomic competition among motor vehicles,--may, from time to time, bynotification in the official Gazette, issue directions to the State Transport Authority-- (i)..... (ii)......(iii) regardingthe grant of permits for alternative routes or areas, to persons in whose cases the existing permits are cancellea or the terms thereof are modified in exercise of the powers conferred by Clause (b) or Clause (c) of Sub-section (2) of Section 684;........
Provided that no such notification shall be issued unless a draft of the proposed directions is published in the official Gazette specifying therein a date being not less than one month after such publication, on or after which the draft will be taken into consideration and any objection or suggestion which may be received has, in consultation with the State Transport authority, been considered after giving the representatives of the interests affected an opportunity of being heard.'
9. We might here immediately state that, under Section 68-F(2) -
'For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the Regional Transport Authority may ..... (b) cancelany existing permit; (c) modify the terms of any existing permit.......'
Another very important provision, with reference to the scheme of nationalisation of routes adumbrated in Ch. IV-A is Section 68-B which declares as follows:
'The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Ch. 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.'
Under Section 43-A (1) of the Act-
'The State Government may issue such orders and directions of a general character as it may consider necessary, in respect of any matter relating to the road transport, to the State Transport authority or a Regional Transport Authority and such Transport Authority shall give effect to an such orders and directions.'
In this context itself, it may be convenient to note certain important provisions in Ch. IV of the Act, disclosing the inter-relationship between the State Government, the State Transport Authority and the Regional Transport Authority. As we have already seen Section 43(1) empowers the State Government to issue directions to the State Transport authority having regard to the principles or criteria set forth in Clauses (a), (b), (c) and (d) of Section 43(1). Under Section 44(3),
'A State transport authority shall give effect to any directions issued under Section 43, and subject to such directions and save as otherwise provided by or under this Act shall exercise and discharge throughout the State the following powers and functions,.........'
Section 44(4) declares:
'For the purpose of exercising and discharging the powers and functions specified in Sub-section (3), State Transport Authority may, subject to such conditions as may be prescribed, issue directions to any Regional Transport authority and the Regional Transport authority shall in the discharge of its functions under this Act give effect to and be guided by such directions.'
In other words, the State Government, the State Transport Authority and the Regional Transport Authority appear to form a hierarchy of empowered bodies under the Act, with interrelated administrative functions; according to the learned Advocate General, any argument that overlooks this, and attempts to exclude the State Government from the constellation of powers designed to implement the provisions of the Act, would be quite beside the mark. Inthis context itself, we might refer to the observations or Subba Rao J. in Raman and Raman v. State of Madras, : AIR1959SC694 , that directions under Section 43-A ought to be given a restrictive interpretation, and not the status of law, as this alone would secure 'a happy correlation of functions of various bodies under the Act including the Government'. We may now proceed to Section 43-A (2) of the Act which has to be immediately related to Section 47 (1), for the obvious reason that the former provision of law explicitly refers to the latter. Section 47(1) runs as follows:
'A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely, (a) the interests of the public generally; (b) the advantages to the public of the service to be provided, ..... (c) the adequacy of other passengertransport service operating or likely to operate in the near future, whether by road or other means between the places to be served; (d) the benefit to any particular locality or localities likely to be afforded by the service; (e) the operation by the applicant of other transport services .. (1) the conditions of the roads included in the proposed route or area; and shall also take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing person interested in the provision of road transport facilities ........'
Section 43-A(2) declares:
'The State Government may, on a consideration of the matters set forth in Sub-section (1) of Section 47, direct any Regional Transport Authority or the State Transport Authority to open any new route or to extend any existing route....' Under Section 57(2), an application for a stage carriage permit or a public carrier's permit is to be made-'not less than six weeks before the date on which it is desired that the permit shall take effect or for any other date fixed by the Regional Transport Authority;'
10. Section 64 provides for appeals by various aggrieved persons against orders of the Regional Transport Authority to the State Transport Authority. Under Section 68-D, objections to the scheme of nationalisation may be tiled within 30 days of the notification of the scheme and procedure is prescribed for a hearing and decision upon the objections. We may complete this exhibition of relevant provisions by citing Rule 294-1 (G. O. Ms. No. 1446 Home) which runs as follows:
'In the case of a person whose stage carriage permit or permits on a route or in an area notified under Sub-section (3) of Section 68-D of the Act is/are cancelled under Clause (b) of Sub-section (2) of Section 68-F of the Act and to whom it is proposed to grant a stage carriage permit or permits on an alternative route or in an alternative area in lieu of the existing permit or permits on the notified route or in the notified area by a direction under Sub-clause (iii) of Clause (d) of Sub-section (1) of Section 43 of the Act, the Regional transport authority concerned shall grant the permit or permits on the alternative route or in the alternative area to that person without following the procedure prescribed in Section 57 of the Act and the rules thereunder.'
11. We are now in a position to scrutinise the main lines upon which Sri M.K. Nambiar for the appellants has developed his arguments, with reference to the major issues arising from the facts we have earlier enunciated.
12. The right of the public to use motor vehicles on public highways is not a right created by the Act. The right existed anterior to any legislation on the subject, and is an incident of public right over a highway, which the Statecould only control and regulate; see the observations or the Supreme Court in Saghir Ahmed v. State of U.P. : 1SCR707 . The true position of law was summarised thus by Venkatarama Aiyar J. in C.S.s. Motor Service Tenkari v. State of Madras, : AIR1953Mad279 ,
'....all public streets and roads vest in the state, but the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State, as trustees on behalf of the public, is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the general public.
In G. Nageswara Rao v. A.P. State Road Transport Corporation, : AIR1959SC308 , the same principles were affirmed, and the Supreme Court observed that the fundamental right of a citizen to carry on business in transport vehicles on the public highway was subject to the power of the State to enact laws reasonably restricting those rights, or even empowering the State to carry on such business itself to the exclusion of the citizen. The validity of the scheme of nationalisation under Ch. IV-A was upheld by the Supreme Court in Dosa Satyanarayanamurthi v. Andhra Pradesh State Road Transport Corporation, : 1SCR642 . However, the constitutional validity of Section 68-G (2), in particular, was not in issue in any of the cases before the Supreme Court. Learned counsel, Sri Nambiar, does not dispute the main position of law, as outlined in the passage already extracted from : AIR1953Mad279 . But his case is that operators upon any route have a constitutional right to exclude others, except in accordance with any enactment which may permit the nationalisation of routes or the introduction or fresh operators, under its provisions which are not an infringement of guaranteed fundamental rights.
Indeed, it is difficult to see how such a proposition could be in dispute at all. But from this, the learned counsel builds up a superstructure of argument that the manner in which displaced permit holders have been granted permits, in alternative routes, to the detriment of persons, such as the appellants, already, plying their buses on those routes, upon the present facts, infringes the constitutional rights of the appellants. The learned Advocate General argues, per contra that the powers to be exercised by the concerned authorities including the State Government, under Section 68-G (2), Section 43-A (2) and Section 43 (1) (d) (iii) are essentially administrative in character, and could not be otherwise. There is no question here of the exercise of a quasi-judicial function at an, and, in this sense the learned Advocate General would even deny that the appellants are aggrieved persons who nave a right to be heard here. In any event, the procedure actually followed was perfectly proper, and the relevant provisions are constitutionally valid. Since the most important of the arguments concerns the constitutional validity of Section 68-G(2), and the manner of the exercise of that power in the present case, we may immediately proceed to an analysis of this aspect.
13. It will at once be noticed that Section 68-G (2) does not in terms, declare any power or function to be exercised by the Regional Transport Authority with reference to the offer of alternative permits to displaced permit-holders. In Maxwell on the Interpretation of Statutes, 10th Edn. p. 352, there is a passage which runs as follows:
'The enactment that at the election of poor law guardians the votes should be taken and returned as theCommissioners should direct, impliedly authorised the appointment of a Returning Officer.'
In other words, an Act providing for the functioning of such an officer was held valid, because the Commissioners were given such a power by implication. It is upon some such logic that Section 68-G (2) would appear to clothe the authority specified, the Regional Transport Authority, with power to offer an alternative route to a displaced permit-holder. There has to be an offer and an acceptance here for any right or interest to be created and such an offer could only be made to a particular person or persons falling within the class of displaced permit holders. One matter upon which the learned Counsel on both sides were m entire accord is that this is a very valuable right, if an offer be made and be sealed by its acceptance. It cannot at all be compared with the monetary compensation provided for in Section 68-G(4) and Section 68-G(5), and though the Legislature, in its wisdom, might have provided for a particular formula of compensation, and, admittedly, the quantum is not justiciable under Article 31, still the very provision of Section 68-G (2) was perhaps dictated by the grave injustice likely to be suffered by displaced permit holders consequent upon nationalisation. As the learned Judge Ramachandra Iyer J. observes:
'...where a person who got a permit in such a manner (Section 57) is prevented from exercising his fundamental right of doing such business by reason of nationalisation of the route, he could be given an alternative permit, this is plain justice.'
14. Again, having regard to the explicit provisions or Section 68-B already set forth, excluding the application of such sections as 47 and 57 of Ch. IV, it does appear as if the legislature intended that there should be a speedy and effective remedy to be exercised by Government in favour or this class of persons, displaced permit holders; formalities of procedure, or the rights of others not within this class, should not stand in the way of the offer of such alternative permit. In this sense, if Sections 68-B and 68-G(2) are read together with the terms of Rule 294-1, already set forth, enabling the Regional Transport Authority to grant such alternative permits without following the procedure in Section 57, they would appear to be legal and valid. Nevertheless Sri Nambiar argues, this is an arbitrary and unchannelled power, even though the exercise of this power is not obligatory, unless the Act itself contains indications for the exercise of this power in accordance with the principles of equity and natural justice, it would be violative of Article 14. It would be equally violative of Article 19(1)(g) read in the light of Article 19(6). At any rate, the pre-existing permit holders of such newly declared alternative route have an interest in complaining of this violation, and in praying that the arbitrary power in Section 68-G(2) be struck down. This raises two important issues: (i) have the appellants a right to be heard in this context, since none of them falls within the category or class of a displaced permit holder; and (ii) is Section 68-G(2) violative of either Article 14 or Article 19 of the Constitution? on this aspect, there is a third question which may also be immediately formulated: Is the exercise of this power, in the present case, illegal because it is a quasi-judicial power to be exercised by the Regional Transport Authority alone, who could tolerate no direct dictation by Government with regard to this function, without rendering the exercise of that function itself thereby illegal?
15. In V.G. Row v. State of Madras : AIR1951Mad147 , there is a passage in the judgment of the learned ChiefJustice Rajamannar C.J. about the true Implications of Article 14. The Learned Chief Justice observed at page 665 (of Mad LJ) : (at pp. 176-177), as follows:
'In my opinion, the principle of equality before the law does not come into play in any controversy as to the legality of a law enacted by the State. It comes into play really in the sphere of its enforcement.'
The learned Chief Justice then made reference to the well-known postulates of Dicey in relation to the sovereignty of the Legislature in the United Kingdom. But, as Sri Nambiar points out, the situation has been subsequently clarified, with particular reference to the existence of a written Constitution guaranteeing fundamental rights, as tar as this country is concerned, and to the terms of Article 13(2) of the Constitution. Generally speaking, it may no doubt be argued that Article 14 should be invoked to impeach a law or an instance of its implementation, only by a person who falls within the class hit at by the alleged discrimination, or who is really aggrieved. For instance, it seems undeniable that the objection must be based on a hostile discrimination, and not a favourable discrimination. Reference might be made here to my observations in E.V.K. Sampath, In re : AIR1961Mad318 . The learned Advocate General would attempt to reinforce this stand by a reference to certain authorities. He cites a passage in Willis on Contitutional Law, 1936 Edn. page 91, which runs as follows:
'Who are entitled to raise questions of constitutionality? Any one whose rights are injuriously affected and no one else. It is not enough that the statute is unconstitutional as to other persons or classes. The person attacking the statute must be within the class.'
In Ealing Corporation v. Jones, (1959) 1 Q. B. 384, Donovan J. observed that,
'The word aggrieved is not synonymous in this context with the word dissatisfied. The word aggrieved connotes some legal grievance, for example, a deprivation of some-thing, as adverse effect on the title to something, and so on, and I cannot see that that is so here.'
In : AIR1951Mad147 the dictum of Justice Frankfurter is cited, upon this principle:
'Justiciability depends on the existence of a right protected under Common Law, Statutes, or the Constitution.'
Again, the undeniable fact that the State or the Regional Transport Authority is not bound to make such an otter at all to a displaced permit holder, makes a great difference. Obviously, even a displaced permit holder cannot maintain an action for the enforcement of such an offer. Much less could persons like the appellants, who do not fall within this class, but are merely persons who happen to hold prior permits on these alternative routes, really complain of an unchannelled power or of possibilities of arbitrary discrimination. Had the case law not evolved from than (sic) : AIR1951Mad147 (FB), much could be said in favour of these arguments that parties situated like these appellants could not be heard to complain that Section 68-G(2) is violative of Articles 14 and 19 of the Constitution.
16. But, apart from the fact that, unlike the case In England, we have a written Constitution embodying fundamental rights which do operate to restrict the powers of the sovereign Legislature, the matter of Article 14, in particular, has been further clarified by the decisions of the Supreme Court in Basheshar Nath v. Commr. of Income-tax Delhi and Rajasthan, : 35ITR190(SC) and Deepchand v. State of U.P., : AIR1959SC648 . In the former decision S. R. Das C. J. observed at page 158,
'Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and other subordinate authorities. As regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of Article 13. Clause (1) of that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part 111, shall, to the extent of the inconsistency be void. Likewise Clause (2) of this Article, prohibits the State from making any law which takes away or abridges the rights conferred by the same part and follows it up by saying that any law made in contravention of this clause shall, to the extent of the contravention, be void.'
Again, their Lordships of the Supreme Court state at page 159,
'Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.'
In : AIR1959SC648 , the propositions are re-affirmed, and it is emphasised that,
'A Legislature, therefore, has no power to make any law in derogation of the injunction contained in Article 13 .........A constitutional prohibition against a Statemaking certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other constitutions.'
Thus, if there can be no waiver in respect of Article 14, any person aggrieved by the consequence of the exercise of any discriminatory power, could be heard to complain against it. He need not be a person actually falling within the category or class for which the legislation seeks to provide. Sri Nambiar refers to the definition of right in Salmond on Jurisprudence, 11th Edn. page 261 (Glanville Williams):
'A right is an interest recognised and protected by a rule of right'.
Since a person holding a permit on any route has a right to do business in transport vehicles on that route to the exclusion of others, except to the extent permitted by valid provisions of law, the appellants could sustain the objection, that Section 68-G(2) is violative of the Constitution. Learned counsel also refers to the well known dicta in Yick Wo v. Hopkins, (1886) 30 Law Ed. 220,
'It is indeed quite true that there must always be lodged somewhere, and in some person or body the authority of final decision:.......
(But in order that the Government)
'may be a Government of law and not of men. For the very idea one man should be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another.....'
Upon this aspect of the matter, we are of the view that the appellants could attempt, within the scope of these petitions, to assail Section 68G(2) as violative of the constitution, and to impugn, the exercise of that power on me facts of the present case.
17. But even Sri Nambiar does not argue that Section 68-G (2) has to be interpreted by Courts as violative of Article 14. As laid down in Ram Krishna Dalm'ia v. Justice Tendolkar, : 1SCR279 , there is always a presumption in favour of the constitutionality of an enactment If it is possible to read the distinct parts in such a manner as to save the constitutionality of any of its provisions, that is the obligatory interpretation. Sri Nambiar argues that Section 68-G (2) has to be read in this manner along with Section 43(1) (d) (iii), and that the latter provision contemplates the enunciation of principles by the State Government which would make the exercise of functions under Section 68-G (2), in accordance with fundamental rights. Sri Nambiar cites and relies on : AIR1953Mad279 where this Court similarly held that Government should formulate rules for selection among the applicants, under the Act, and that there should not be two different and opposing principles both in operation at the same time. Thus, by this single argument, Sri Nambiar seeks to impugn the Act of the Government (i) in not issuing such general directions under Section 43(1)(d) (iii) which is a pre-requisite for the exercise of functions by the Regional Transport Authority under Section 68-G (2) and (11) in actually issuing directions instead, which were quite illegal in character, and for the issue of particular permits on the alternative routes, to named displaced permit holders.
18. But upon a careful scrutiny of the relevant principles and citations, we are quite unable to see how Section 68-G (2) is violative of either Article 14 or of Article 19(1)(g), even on the interpretation that Section 43(1) (d) (iii) empowers the State to issue specific directions, and not merely general directions. We must repeat that Section 68-G (2) gives no right to displaced permit holders. It does not even refer to a power of the Regional Transport Authority, except by necessary implication. As the section stands, since it lays no obligation upon the State to make an offer, and creates no corresponding right in displaced permit holders to enforce such an offer, it is quite impossible to see how we could conceive of the existence of any arbitrary or unchannelled power, within the terms of this sub-section. Nor is it necessary to accept the argument that the constitutionality of this sub-section can only be saved by assuming that under Section 43 (1) (d) (iii) the State Government must first enunciate general principles. On the contrary, if regard is had to the provisions of Section 43 (1) (d) (iii) in relaton to the hierarchy of authorities under the Act, including the State Government and to the nexus between them, as envisaged by Sections 43-A (1), 44 (3) and 44 (4) already referred to, it is obvious that Section 43 (1) (d) (iii) very well sustains the interpretation that the directions could be well individual and specific.
As the learned Judge, Ramachandra lyer J. has pointed out, the very idea of an offer of this kind, and its acceptance, appears to connote an administrative function; further, the alternative route may well lie in the areas of two or more Regional Transport authorities, and hence it is essential, for the proper exercise of this function, that the orders should come from above. Otherwise, an administrative-deadlock may result, and the beneficient provisions of Section 68-G (2) be frustrated. As regards Article 19(1)(g) read with Article 19(6), it is sufficient to refer to Dwarka Prasad v. State of U. P., : 1SCR803 and : 1SCR707 . The test of reasonableness is certainly satisfied in the present case. For, merely because persons hold permits on certain routes, they have no right to totally exclude others. It is reasonable restriction to permit the introduction of other permit holders who might be displaced by a schemeof nationalisation; of course, amongst persons of that class, the offer will have to be made upon principle, and not on arbitrary preference. But since Section 68-G (2) does not enact a power, but an administrative discretion, it is obvious that a complaint on this score should really coma from a person aggrieved by a particular instance of hostile discrimination. We shall discuss this aspect later. On the broad argument, we have no hesitation in concluding (i) that Section 68-G (2) is not violative either of Article 14 or of Article 19 as it stands, and (ii) that this interpretation is sustainable upon the assumption, which is equally sustainable, that Section 43 (1) (d) (iii) does vest a power in the Government to issue specific directions for grant of permits to individual displaced permit holder.
19. The matter could be more briefly dealt with, on the question of the nature of these powers. It is difficult to see how these powers could at all be termed quasi-judicial, or anything other than administrative. The authorities have to be more elaborately reviewed, when we come to the quasi judicial aspect of Section 43-A (2); that is the more difficult problem. But the power of the regional transport authority to make an offer under Section 68-G (2) has no tincture whatever of a quasi-judicial function. There is no right to be enforced, no obligation to offer not even an obligation to accept. On the contrary, a mere glance at the provisions of a section like 47, which relates to the grant or refusal of applications for a stage carriage permit by a regional transport authority, will show that a quasi judicial power is there involved. For, there we have a lis, the question of an issue or refusal, a right to be heard by the person or persons affected, and the principles determining the exercise of the power. The learned Advocate General refers, in this connection, to R. v. Statutory Visitors to St. Lawrence's Hospital, Caterham, 1953 2 All ER 766, where it was held that the statutory visitors exercising administrative functions, did not constitute a judicial Tribunal.
The further question remains, whether, upon the present facts, we have any instance of the exercise of an arbitrary power, as far as the issues of these permits are concerned. The learned Advocate General stresses that, in this State, permits are issued not merely upon the basis of the distance for which the stage carriage Is to run, but also the mileage permitted per diem. This results in a true equality, the number of trips permitted being greater where distance is less. Thus, there is really no scope for the argument of Sri Nambiar that, as between the displaced permit holders, the Government should have laid down principles upon which alternative routes are to be offered, as in G.O. Ms. No. 2265, dated 9-8-1958, classifying those routes as short, medium and long. Again, the data made available to us by the learned Advocate General prove that there has been no instance of unfair discrimination. All the displaced permit holders, consequent upon schemes of nationalisation so far introduced, have been given alternative permits, on the basis of offer and acceptance. In other words, the possibilities contemplated in Shrinivasa Reddi v. State of Mysore, : 2SCR130 of abuses consequent upon piecemeal nationalisation have, fortunately, not eventuated. However this might be, the displaced permit holders who have been given alternative permits are thoroughly satisfied. They do not complain, and, if there has been no unfair discrimination so far as they are concerned, it is difficult to see how the appellants could complain with regard to the grants of permits to such persons. In other words, the appellants are merely complaining that their trade isaffected by the introduction of other permit-holders in the route, and such a power in the State is not an unreasonable restriction. It is true that a route is an abstract concept, not merely a highway -- vide Kelani Valley Motor Transit Co. Ltd. v. Colombo Ratnapura Omnibus Co. Ltd. AIR 1946 PC 137. But, even Sri Nambiar does not contend that the mere introduction of other permit holders in the route involves a justiciable infringement of any porperty right. Regulation of property rights is not the taking of property; Belfast Corporation v. O. D. Cars 1960 1 All ER 65.
20. The question remains whether the State acted illegally in directing the Regional Transport Authority under Section 43 (1) (d) (iii) to grant these permits to the named displaced permit holders. Here, the learned Advocate for the appellants places particular reliance upon two authorities: (1) Commissioner of Police, Bombay v. Gordhandas Bhanji, : 1SCR135 and Sri Rama Vilas Service Ltd. v. Road Traffic Board, Madras AIR 194S Mad 400. The facts of the first case were somewnat exceptional, and as follows: Rule 248 of the rules framed under Section 22(1)(f) and 22(1)(g) of the City of Bombay Police Act, 1902, invested the Commissioner with specific powers, namely, an absolute discretion in refusing any licence etc. The facts were that the Commissioner of Police, Bombay, purported to communicate an order of the Government of Bombay cancelling a licence issued to an individual, and this was not, in terms, his act of discretion, or any record of the exercise of such a discretion. The Supreme Court held that there was no valid cancellation of the licence whatever since the Commissioner has never exercised the discretion vested in him under the specific terms of the statute, and the act of cancellation was that of another, namely, the Government.
In AIR 1948 Mad 400 there is no observation to the effect that there is nothing in the Motor Vehicles Act, 1939 which could imply that the Government could, by order, direct the statutory Boards exercising their judicial and other functions under the Act, to pass particular orders. It was pointed out that, under the scheme of the Act, these statutory bodies were quite independent. We are unable to see how these decisions can apply to the present context of facts. As we have earlier stressed, (sic) very scheme of certain sections of the Act shows that the State Government, the State Transport Authority and the Regional Transport Authority form a hierarchy of bodies with functions and powers, ascending from the Regional Transport Authority upwards. The power to offer an alternative route to a displaced permit-holder is purely administrative. Moreover, the exercise of that power is not possible without orders from the higher bodies, as the route may lie in several Regional Transport Authorities' jurisdiction. There is, therefore, no support afforded by these decisions, for the view that the Government could not validly issue orders under Section 43 (1) (d) (iii), for offers to be made to particular displaced permit holders, the concerned respondents.
21. Certain decisions have also been cited before us with regard to the state of affairs under which this court will or will not issue a writ of certiorari. As pointed out in Halsbury's Laws of England (Simonds Edn. Vol. XI, Sections 251 and 265), certiorari generally lies in respect of judicial, as distinguished from administrative acts. Although the order is not of course it will, though discretionary, nevertheless be granted ex debito justitiae to quash proceedings which the Court has power to quash, where it is shownthat the Court below has acted without jurisdiction or inexcess of jurisdiction, provided the application is made by an aggrieved party. A.M. Allison v. B.L. Sen, : (1957)ILLJ472SC , K.S. Rashid and Son v. Income-tax Investigation Commission, : 25ITR167(SC) , and Balwantrai Chimanlal Trivedi v. M.N.Nagrasha, : (1962)IILLJ236SC generally emphasise that the remedy provided under Article 226 is discretionary, and depends upon the satisfaction of the High Court with regard to a failure of justice. On the contrary, though the writ will not ordinarily issue against an executive authority, it may so issue in a fit case where a lackof jurisdiction is involved: Calcutta Discount Co. Ltd. v. Income-tax Officer, : 41ITR191(SC) . Reference may also be made to the observations of Rajagopalan J. in Abdul Mazid v. State of Madras, : AIR1957Mad551 , concerning the rightsof any aggrieved person to challenge the validity of an order which he seeks to avoid, by the issue of a writ of certiorari, irrespective of any statutory right vested in him to make the objection at an early stage.
22. We may now proceed to the second aspect of wearguments, which is equally important. Here, the simpleissue is whether the appellants or any of them had aright to be heard prior to the declaration of any of thenew routes by the Government under Section 43-A (2) of theAct.
23. In this context, we are inclined to attach some weight to the argument of the learned Advocate General, that for the purposes of implementing the beneficent pro visions of Section 68-G(2) in respect of displaced permit holders, the Government could very well have acted without recourse to the procedure in Section 43-A read with Section 47 (1) of the Act. The procedure actually followed by the State, in the present case, really makes Section 68-B unnecessary. As we have earlier observed, Section 68-B seems to have been specifically enacted to expedite procedures in this respect, and it is really Section 68-B which justifies and validates Rule 294-1, earlier cited. In other words, suppose that, consequent upon a scheme of nationalisation, there are certain displaced permit-holders, to all of whom the State Government desires to offer alternative routes, we must stress that, from a practical point of view, this would be real justice rendered to them, monetary compensation provided for under law being, in no sense, a comparable relie (sic) Section 68-G is to be implemented at all, it means that the Regional Transport Authority must be directed to make the offers. Since more than one jurisdiction of Regional Transport Authority may be involved, and the offer, if sealed by acceptance, would bind the Government, the decision has necessarily to be taken on a higher level.
In other words, it is for this purpose that the State Government is empowered under Section 43 (1) (d) (iii) to issue directions. Now, if so much has been decided upon, it is very difficult to see why the picture should be further confused by declaring new routes under Section 43-A(2) in conjunction with Section 47 (1). In any event, the situation is clearly quite different from that in which the State Government opens new routes, under Section 43-A (2), upon general public considerations. In the present instance, it is indisputable that the new routes were declared for the sole and specific purpose of giving relief to the concerned displaced permit holders under Section 68-G (2). It is from this point of view that the failure to cancel the prior permits of the displaced permit holders, before the offer of new routes, the lack of six weeks interval under Section 57(2) etc., are quite immaterial, and of minor significance.
In view of Section 68-B, we do not see how the State Government could be prevented from making these offers straightaway. This argument itself lends powerful support to the case advanced by the learned Advocate General that (i) the declaration of a new route is an administrative and not quasi-judicial power at all, and (ii) that there is no right to be heard, available to any pre-existing permit holder, before the new route was declared.
24. The arguments here centre round two related issues or aspects. Firstly, purely as a matter of syntax and construction, it seems a plausible interpretation that the word 'matters' occurring in Section 43-A(2) already set forth, refers only to considerations (a) to (f) in Section 47 (1), already set forth, and does not include within the scope of its reference the latter clause any representations made by persons already providing passenger transport facilities. Such an interpretation is strengthened by the disjunctive manner in which Section 47(1) is worded, the words the 'following matters' in that section being elaborated in two parts, namely, considerations (a) to (f) followed by the words 'and shall also take into consideration', etc. We are inclined to agree with this interpretation and to hold that in exercising the power under Section 43-A(2), the State Government is not necessarily bound to give notice to persons already doing transport business upon any segment of the new routes declared or extended.
25. But apart from this aspect, the important question is whether this is a quasi-judicial act, impressed with that character which makes notice essential. This Court appears to have uniformly held that, unlike the case of a grant or refusal of stage carriage permit, the declaration of a new route or extension of an existing route was purely an administrative, and not a quasi-judicial act. In W. P. Nos. 66 and 121 of 1957 (Mad), Rajagopalan J. observed that 'Sanction of a new route appears to me to be an order wholly administrative in its scope.'
26. The same view was taken by Balakrishna Aiyar J. in W. P. Nos. 450 and 451 of 1958 (Mad). The learned Judge gave illustrations in this context, and pointed out that the introduction of extra trains by the railway administration, or the opening of a new branch by an organisation like the State Bank, could not be said to be judicial or quasi-judicial acts, notwithstanding the fact that this mignt conceivably affect the interests of others. The same view appears to have been taken in W. A. No. 50 of 1957 of this Court. Nevertheless, Sri Nambiar argues that the declaration of a new route, or the extension of existing routes are acts which are quasi judicial in character, upon tests applicable to this question, and he seeks to support the argument with reference to the following authorities:
27. Rex v. Woodhouse, 1906 2 KB 501 related to the grant of provisional licences by certain Justice under the Licensing Act, 1904 and it was held that this function was quasi-judicial and that a writ of certiorari would lie. Similarly, Rex v. Sunderland Justices, 1901 2 KB 357, is a decision to the same effect, with reference to the Licencing Act of 1872. The test of the quasi-judicial character of an Act was enunciated in the famous decision Rex v. Electricity Commissioners 1924 1 KB 171. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acted in excess of such authority, they were subject to the controlling jurisdiction, of prerogative writs. As far as this country is concerned, in Province of Bombay v. K.S. Advani, : 1SCR621 Kania C. J. referred to the English decisions, which lay down the test of existence of a proposition and an opposition, or of a lis. The Supreme court observed:
'It seems to me that the true position is that when the law under which the authority is making a decision Itself, requires a judicial approach, the decision will De quasi-judicial.'
In : AIR1959SC308 , Subba Rao J. had occasion to consider the same test. Where the State Transport Undertaking, which was a statutory authority, threatened to infringe the rights of a citizen, the citizen could object to the scheme on public grounds or personal grounds.
'There is, therefore, a proposal and an opposition and the third party, the State Government, is to decide that lis and prima facie it must do so judicially.'
But it is difficult to see how this logic could be applied to the present facts. The scheme of nationalisation may involve a proposal when the State Transport Undertaking applies for a permit, and there may conceivably be an opposition thereto. But when, under Section 43-A (2), the State Government declares a new route or extends an existing route, after considering matters mentioned in Clauses (a) to (f) of Section 47 (1), it is exercising a purely administrative power. It is very difficult to see how there are two parties, at that stage, or a proposal and an opposition and a lis. On an analysis of the language of Section 47 (1) and Section 43-A (2), we are, further inclined to the view that the latter part of Section 47 (1) concerning the right to make representations is really not taken in within the language of Section 43-A (2), namely, 'on a consideration of the matters set forth In Sub-section (1) of Section 47.' Prima facie these words would appear to apply only to Section 47(1), Clauses (a) to (f): Further, where the Government is acting under Section 43-A(2) for the express purpose of giving effect to Section 68-G (2), the power would appear to be purely administrative, on the other argument that Section 68-B excludes the applicability of the provisions of Ch. IV altogether. Hence, we have to come to the conclusion that the fact that some or any of these appellants did not have a hearing before the new routes were declared under Section 43-A (2), does not amount to any infringement of right, it would not justify the issue of a writ of certiorari.
28. Sri Nambiar placed considerable reliance upon the decision of Rajagopalan J. in Raman and Raman Ltd. v. State of Madras : AIR1957Mad536 . Actually, that decision does not help him for several reasons. The facts of that case were very exceptional, and it really related to an extension of a route to the prejudice of the petitioner who had all along objected to the extension of the route sought by the third respondent. The learned Judge held that,
'Principles of natural justice did, in the circumstances of this case, require the Government to give an opportunity to the petitioner,....to make his representations to the Government before it exercised its jurisdiction under Section 43-A (2) to extend the existing route. The effect of the failure of the Government to give the petitioner that opportunity has to be viewed against the background of the circumstances to which I have adverted.' It will thus be seen that the learned Judge, Rajagopalan J. thought that, in view of the special and particular circumstances of that case, the Government ought to nave given 'n opportunity to the petitioner before the extension of the route under Section 43-A (2) upon principles of natural justice. The learned Judge further observed, upon the Interrelation between Section 43-A (2) and Section 47 (1) that we have discussed,that, 'that statutory obligation carries with it a further implied obligation to give notice to such bus operator was the contention of the learned counsel for the petitioner, which I am not now inclined to accept.'
29. This decision, therefore, is no authority for the view that, in the present circumstances, the new routes could not have been declared without notice to the concerned appellants, or without hearing such appellants, even for the specific purpose of giving effect to the beneficent provisions of Section 68-G (2). We may observe that this case : AIR1957Mad536 was finally dealt with by a Full Bench in : AIR1961Mad180 (FB) in which the learned Judges, merely referred to 'the further reason which was dealt with by Rajagopalan J. in W.P. No. 18 of 1957: : AIR1957Mad536 , namely, that the order passed without giving an opportunity to Raman and Raman to make their representation' in affirming the decision itself. If there was no statutory right to be heard, and the act of declaration of the new route was not a quasi-judicial one, but purely administrative in character, the question of the application of any principle of natural justice does not really arise, unless warranted by the facts of an exceptional case. The facts in : AIR1957Mad536 were admittedly exceptional, and we do not think that the decision applies here.
30. As we have already pointed out, though there were certain other minor points adverted to, they did not affect the substantial merits of the appeals. For reasons discussed by us in detail above, we agree with the conclusion of the learned Judge, Ramachandra Iyer J. and hold that no case was made out for the issue of a writ or certiorari quashing the grants of permits to displaced permit holders in any of these instances. Hence, the appeals themselves fail and are dismissed with costs.