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B. Batcha Saheb Vs. Secretary, Regional Transport Authority North Arcot at Vellore and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Constitution
CourtChennai High Court
Decided On
Case NumberWrit Appeal Nos. 202, 207 and 256 of 1966
Reported inAIR1969Mad223
ActsMotor Vehicles Act, 1939 - Sections 44(5), 60(1) and 68(1); Motor Vehicles Rules - Rule 68(1); Madras Motor Vehicles Rules, 1940 - Rule 134A; Constitution of India - Article 14
AppellantB. Batcha Saheb
RespondentSecretary, Regional Transport Authority North Arcot at Vellore and anr.
Appellant AdvocateMohan Kumaramangalam, ;C.S. Prakasa Rao, ;M.N. Rangachari, ;V.C. Palanisami, ;S.B.X. Anthoniswami, ;S. Srinivasan, ;V. Subramaniam, ;K.K. Venugopal, ;M. Kalyanasundaram, ;G. Ramaswami, ;V. Krishna Men
Respondent AdvocateGovernment Pleader
Cases ReferredState of West Bengal v. Anwar Ali
.....- sections 44 (5), 60 (1) and 68 (1) of motor vehicles act, 1939, rule 68 (1) of motor vehicles rules, rule 134a of madras motor vehicles rules, 1940 and article 14 of constitution of india - rule 134a (xi) made by virtue of power to frame rules under section 68 (1) challenged - classification is not sufficient to relieve a statute from reach of equality of article 14 - it is matter of arbitrariness and chance whether regional transport authority retain his own power to deal with some of cases or forward to others or direct them to be forwarded to secretary for being dealt with by exercise of power suspension - rule 134a (xi) cannot be maintained since violates article 14 - rule 134a (xi) struck down - state government open to frame appropriate rule making reasonable classification in..........44 (5), rule 134-a has been framed by the state government, as part of the madras motor vehicles rules, rule 134-a sub-clause (xi), which concerns us, runs as follows:-- 'the regional transport authoritymay, for prompt and convenient despatchof business, by general or special resolution, delegate to the secretary the following powers and functions, namely:-- * * * * * (xi) power under section 60 of the act to suspend a permit ............' 7. the position at law thus becomes clear. we have the actual order made by the regional transport authority, north arcot, but it is really not essential to set it forth. in all these cases, that authority has delegated the power to suspend the permit alone, by virtue of rule 134-a (xi) to the secretary of that authority. the secretary has purported.....

M. Anantanarayanan, C.J.

1. The problem presented in these proceedings, under Article 226 of the Constitution is the interesting one of the vires of Rule 134-A (xi) of the Madras Motor Vehicles Rules, which has been made by virtue of the power to frame Rules, under Section 68 (1) of the Motor Vehicles Act. We have had the benefit of arguments addressed to full length on this specific issue, and the available precedents and pasages in standard treatises on the ambit of Delegated Legislation, have also been placed before us.

2. It is very important at the outset itself, to note the particular form that the Rule has taken, in the light of certain relevant provisions of the Motor Vehicles Act.

3. The most important of those is Section 60 (1) of the Act, together with its Sub-clauses (a) to (f). Since this scheme has to be kept in mind, throughout, in dealing with the main issue that was argued, I am setting forth the sub-section in entire text here below:--

'60 (1). The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit.

(a) on the breach of any condition specified in Sub-section (3) of Section 59, or of any condition contained in the permit, or

(b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or

(c) if the holder of the permit ceases to own the vehicle or vehicles covered by the permit, or

(d) if the holder of the permit has obtained the permit by fraud or misrepresentation; or

(e) if the holder of the permit, not being a private carrier's permit, fails without reasonable cause to use the vehicle or vehicles for the purposes of which the permit was granted; or

(f) if the holder of the permit acquires the citizenship of any foreign country: Provided that no permit shall be cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation.'

4. As would be clear from a bare glance at this provision, it vests the Transport Authority, which granted the permit, with power either to cancel the permit, or to suspend it for such period as thought fit upon any of the categories of default or contingency being proved, as set forth in Sub-clauses (a) to (f). Finally, the proviso indicates that, as far as the power to cancel the permit is concerned, it is essential to give the holder of the permit an opportunity to furnish his explanation. Section 60 (3) is also of some relevance and illuminating value here, and it runs as follows:--

'(3) Where a permit is liable to be cancelled or suspended under Clause (a) or Clause (b) or Clause (e) of Sub-section (1) and the Transport Authority is of opinion that having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit if the holder of the permit agrees to pay a certain sum of money, then notwithstanding anything contained in Sub-section (1), the Transport Authority may, instead of cancelling or suspending the permit as the case may be, recover from the holder of the permit the sum of money agreed upon'.

5. Now, as I have earlier pointed out, the power to make rules, for the purpose of effecting the provisions, is embodied in Section 68 (1) of the Act, and vested in the State Government. Under Section 44 (5) of the Act:

'The State Transport Authority and any Regional Transport Authority, if authorized in this behalf by rules made under Section 68, may delegate such of its powers and functions to such authority or person and subject to such restrictions, limitations and conditions as may be prescribed by the said rules.'

6. In the light of this express power of delegation embodied in Section 44 (5), Rule 134-A has been framed by the State Government, as part of the Madras Motor Vehicles Rules, Rule 134-A Sub-clause (xi), which concerns us, runs as follows:--

'The Regional Transport Authoritymay, for prompt and convenient despatchof business, by general or special resolution, delegate to the Secretary the following powers and functions, namely:--

* * * * * (xi) Power under Section 60 of the Act to suspend a permit ............'

7. The position at law thus becomes clear. We have the actual order made by the Regional Transport Authority, North Arcot, but it is really not essential to set it forth. In all these cases, that Authority has delegated the power to suspend the permit alone, by virtue of Rule 134-A (xi) to the Secretary of that Authority. The Secretary has purported to exercise this power to suspend the permits, in all these cases, for different period. It has to be carefully noted that the Secretary has purported to exercise this power, using his discretion, with regard to any or some of the categories of default set forth in Section 60 (1), Clauses (a) to (f), of the Act. The problem is, can this delegation of power be supported either on the principles of the delegation, in part, of what could be conceivably regarded as a total and indivisible power, or with reference to the Fundamental Right guaranteed under Article 14 of the Constitution?

8. There are three possible avenues of attack, in respect of the partial delegation of power embodied in Rule 134-A (xi). The first is that this is a quasi-judicial power, and, hence, that any delegation thereof is ultra vires. The Second is that it is a total and indivisible power, and that such an integral power cannot be split up, so that the Secretary to the Regional Transport Authority, a distinct and Subordinate Authority, is vested with a part of the power alone, namely, the power to suspend the permit. The third is that, in any event, such splitting up of the power, as between two distinct authorities, without differentia being indicated, even by implication, would necessarily result in an inequality or an arbitrary impact of the power. This offends Article 14 of the Constitution.

9. I might immediately refer to the unreported judgments of this Court, in which the matter has received attention in some form or other. One is the judgment in Writ Appeal No. 169 of 1966, (Mad) to which I was a party. The Division Bench there held that, essentially the cancellation of a permit and the suspension of permit for a period are dealt with under Section 60 (1), as two punishments which are clearly distinct. That being the case, a partial delegation, in the sense that the power in respect of the lesser punishment alone is delegated to another authority, is not per se invalid. In W. P. No. 87 of 1951 (Mad), Rajamannar, C. J., and Venkatarama Ayyar, J., held that there was nothing in Section 44 (5) of the Act, which restricted the power of delegation, and, hence, there was no reason to assume that Rule 134-A (xi) was excessive delegation, because the function was quasi-judicial. In W. P. Nos. 730 and 734 of 1961 (Mad), Veeraswami, J., dealt with a different matter, namely, the validity of delegation to the Secretary of the power to grant interim stay in respect of revision petitions, but there are some observations upon Section 44 (5) and the principles of delegation. By his judgment in W. P. Nos. 4280, 4294, 4370 and 4397 of 1965 (Mad), Kailasam, J., upheld the delegation embodied in Rule 134-A (xi).

10. The argument that the power is a quasi-judicial one, and that it would not therefore, be the subject of an act of delegation, may be very briefly dealt with; actually, I am referring to this only for the sake of completeness. The matter was elaborately considered by Rajagopala Ayyangar. J., in Dhanmull Sowcar v. Secretary, R. T. A., : AIR1957Mad387 . The learned Judge has pointed out on the authority of Barnard v. National Dock Labour Board, 1953 2 QBD 18 that while an administrative function can often be delegated, 'a judicial function' rarely can be. But, even in that respect, delegation could occur, if there is an express enabling provision, and the observations of Subba Rao, J., (as he then was) in Krishnan v. Secretary. Regional Transport Authority, Chittoor, 1956 AWR 142 AIR 1956 Andhra 129 were cited and followed. As I have pointed out earlier, Section 44 (5) expressly provides for the delegation, and the delegation cannot certainly be impugned, merely because of the character of the power as a quasi-judicial one. This was also upheld in the Division Bench judgment in W. P. No. 87 of 1951 (Mad).

11. The argument depending on the integral and indivisble nature of the power would appear to require greatet attention. I shall hence, first set forth the argument, in its most precise and convincing form, before proceeding to the authorities.

12. The argument of Mr. Kumaramangalam, on this aspect, is this. There is no absolute rule that a power cannot be delegated in part, and only in whole. On the contrary, Gordon Dadds & Co. V. Morris, 1945 2 All ER 616 is authority for precisely the opposite view. That case referred to a delegation under Regulation 51 (5) of the Defence (General) Regulations, 1939. It was held that the delegation by a competent authority, did not itself divest that authority of its own powers; in other words a delegation could be partial. Not merely this where a competent authority had taken possession of the property (land) for one purpose, the authority could continue possession and user for another purpose, provided that other purpose also fell within the ambit of the Regulations. But the argument is really stressed in a more subtle form.

As will be clear from a careful study of Section 60 (1), Clauses (a) to (f) and the proviso, this is a total scheme for dealing with categories of default, in respect of stage carriage permits, the power itself being broadly divided into two, firstly, a power to cancel the permit, and, secondly, a power to suspend the permit for a discretionary period. The proviso Itself shows that the first power was regarded as being much graver in character, so that the statute made it essential, apart from the principles of natural justice, that the power must not be exercised, without the holder of the permit being afforded an opportunity to explain. Where there are two such powers of punishment, one of which is much graver than the other, and the Transport Authority alone could impose the graver punishment, every case before it essentially would involve a judgment, whether the graver punishment need be considered, or otherwise. This is also clear from Section 60 (3), which I have earlier set forth. The argument is that this discretion or judgment cannot be delegated; if the lesser power is to be delegated, no doubt such a partial delegation may be valid. But, in that case, there must be some classification in respect of categories (a) to (f), as to which categories would fall within the scope of the lesser delegated power and which would not. If there is no such relationship between the categories of default and the delegation of the lesser power to the Secretary, and there is no division of the categories of default, then, in a word, it implies that the judgment that I have referred to earlier, is itself being surrendered. It is argued that this is not proper, as the delegate, in any event, cannot exercise the power to cancel the permit

13. I might immediately state that it has been a very difficult matter to trace any authorities, which would throw light on the principle embodied in this form, in the argument of the learned Counsel, But there are certain cases of considerable interest, in the United Kingdom, which may afford some oblique illumination. One of them is Ellis v. Dubowski, 1921 3 KB 821, That was a case In which the County Council was given a power to grant licences for the exhibition of films, provided the council was satisfied that the film was not likely to be injurious to morality or to incite to crime. That power could be delegated by the County Council to its Committees, or to District Councils. But the County Council, in effect imposed an additional condition that the film should be certified by an independent body, the British Board of Film Censors. This was struck down as invalid delegation, as the Committee of the County Council had no power to create such a condition, depending on the opinion of a third Body, not at all in the hierarchy of authorities. In Wade's Administrative Law (1965 Edition, pages 49, 50 & 51) the rule against delegation is broadly discussed. The important cases noticed are: Mills v. London County Council, 1925 1 KB 213; Allingham v. Minister of Agriculture and Fisheries, 1948 1 All ER 780; 1953 2 QB 18 and Vine v. National Dock Labour Board, 1957 AC 488. But, essentially stated, all these precedents depend on some delegation to some party of agency outside the hierarchy of authorities. Thus, for instance, in 1948 1 All ER 780 the Bedfordshire Committee had the power to decide what crop should be grown by the farmer on the field, but left it to their Executive Officer to specify the property. That was excessive delegation.

14. In the present case the problem does not at all arise in that form. But it does arise in the form, that. If there Is to be a partial delegation and the lesser power alone is to be delegated, then there must be some classification of the categories of default. If that is not done, every default may be dealt with, quite arbitrarily and even by chance, in one of two possible ways. The Regional Transport Authority may take the report on his own file, and cancel the permit for the default. For, as we have already pointed out, this partial delegation does not at all imply that the power of the delegating authority is exhausted by it per contra, he may send the same case, or some other case, to the Secretary. Regional Transport Authority, who cannot cancel and who can only suspend. It is even possible, paradoxically, that certain more serious categories of default are dealt with by the Secretary under the delegated power. In terms of suspensions for stated periods, and that some less serious default is taken up by the Regional Transport Authority or brought before him in one of several ways, and dealt with by cancellation of the permit.

15. There can be no doubt whatever, that, so long as the delegation can result in such a situation, the Rule itself directly offends Article 14 of the Constitution. This is very clear from the dicta in State of West Bengal v. Anwar Ali, : 1952CriLJ510 . I do not think that this point need really be laboured. Where there are two possible procedures, one of which may be far graver in its consequences than the other, for the same categories of default, this is a situation to which Article 14 could strictly apply. There must be some reasonable classification, of the categories to which the graver punishment could be attracted, and those to which the punishment of suspension alone would be appropriate. Actually, it would not even be adequate. If some broad division is made, such as, that the Regional Transport Authority selects cases, at his discretion, either for being dealt with by his Secretary, or being retained for his own disposal.

To cite the observations of their Lordships:

'The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of Article 14. To get out of its reach it must appear that not only a classification has been made but also that it is one based upon a reasonable ground on some difference which bears a just and proper relation to the attempted classification and is not a mere arbitrary selection.' (Page 86, Paragraph 37). Indeed, as the Rule stands, there is not even a semblance of a classification, and it is entirely a matter of arbitrariness and chance, whether the Regional Transport Authority would retain his own power to deal with some of the cases, or forward others, or direct them to be forwarded, to the Secretary for being dealt with, by exercise of the power of suspension. It may even be that for the very same default, some cases are dealt with in one way, some in the other.

16. Such a Rule cannot be possibly, maintained, since it patently violates Article 14 of the Constitution that is the vice of this particular instance of delegation. Accordingly, these proceedings are allowed and Rule itself must be struck down. It is needless to point out that it is always open to the State Government now, to frame an appropriate Rule or Rules, making reasonable classification in respect of the categories of default in Section 60 (1) and relating the delegation of the lesser power, which is the object of the Rule, to this classification. The Writ Appeals and petitions are accordingly allowed and the Rule Nisi made absolute. No order as to costs.

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