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Himachal Transport Workers Union (Regd.) and ors. Vs. Secretary (Transport) to Himachal Pradesh Government and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Motor Vehicles
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 3 of 1965
Judge
Reported inAIR1967HP21
ActsConstitution of India - Articles 12, 13, 13(2), 19, 19(1), 32, 226, 352(1) and 358; ;Motor Vehicles Act, 1939 - Section 68C, 68D and 68E
AppellantHimachal Transport Workers Union (Regd.) and ors.
RespondentSecretary (Transport) to Himachal Pradesh Government and ors.
Appellant Advocate R.K. Garg,; S.C. Aggarwal,; Prithvi Raj and;
Respondent Advocate V.P. Misra and; G.C. Negi, Advs.
DispositionPetition dismissed
Cases ReferredSaghir Ahmad v. State of U. P.
Excerpt:
.....- petitioners challenged modified scheme prepared and approved under ch iv-a as it infringed their fundamental right under article 19 (1) (g) and (f) - contended that modification provides for denationalization which was not permissible under ch iv-a - further contended that ch iv does not provide operators of vehicles on permit granted in favour of state to run and operate vehicles on a nationalized route - further contended that modification places reasonable restriction on petitioners right to carry on business and profession as motor driver and modification had been published without prior approval of central government required by law - petitioners cannot challenge infringement of fundamental right under article 19 (1) (g) and (f) on account of continuance of emergency - after..........trucks on payment of rs. 6000 with the state transport undertaking could prejudicially affect any right of petitioners nos. 2 to 5 who were not private truck operators but were only drivers. the plea of the petitioners that petitioner no. 2 was rendered unemployed as a consequence of the modification and that there was apprehension that petitioners nos. 3 to 5 would also be rendered unemployed in course of time is without any substance. it was denied, on behalf of the respondents, that services of petitioner no. 2 were terminated as a result of the implementation of the modification. it was explained that petitioner no. 2 had been employed on daily wages and his services were terminated in accordance with the contract of his service for reasons wholly unconnected with the implementation.....
Judgment:
ORDER

Om Parkash, J.C.

1. This is a petition, under Article 226 of the Constitution of India, for quashing a modified scheme, prepared and approved, under Ch. IV-A of the Motor Vehicles Act, (hereinafter referred to as the Act).

2. Road Transport Services were nationalized, in Himachal Pradesh, in July 1949. On the 20th April 1963, a finalized scheme of nationalization was prepared by the Himachal Pradesh State Government to meet the requirements of Ch. IV-A of the Act, as introduced by Act 100 of 1956. On the 27th July 1964, the State Transport Undertaking proposed a modification in the above scheme. Persons, affected, were given thirty days' time to file objections, against the modification. The objections were heard and decided by the Judicial Secretary. The modification, as finally approved, by the State Government, was published in the Official Gazette on the 20th November 1964. The modification was to the effect that a private operator could apply to the General Manager, State Transport Undertaking and, on acceptance of the application, could attach his truck with the State Transport Undertaking on payment of Rs. 6,000 in instalments. The public carriers' route permit for the truck was to be obtained, from the State Transport Authority, by the General Manager in the name of the State Transport Under-taking. The private operator was entitled, on the basis of the permit, to carry goods, on prescribed rates.

3. The petitioners have filed the present petition, questioning the validity of the above modification. The main grounds of attack are as follows:--

(1) The modification contravenes the provisions of Ch. IV-A of the Act inasmuch as the modification aims at denationalization which is not permissible under that Chapter. That Chapter provides that the State Transport Undertaking should run and operate the vehicles itself. The modification does not provide that the State Transport Undertaking will run and operate the vehicles. Oh the contrary, it merely provides that private operators will operate trucks, on permits, obtained by the State Transport Undertaking, in its own name. Though, it is stated in the modification that vehicles will run under the general control and supervision of the Transport Department but, in fact, no control and supervision is exercised and for all practical purposes the interest of the State Government is confined to obtaining an amount of Rs. 6,000 as attachment fee to make unjustified and illegal gains under the authority of Ch. IV-A.

(2) Chapter IV-A of the Act does not provide for the operators of the vehicles to run vehicles on permits granted in favour of the State Transport Undertaking to run and operate vehicles on a nationalized route. In fact, no such permit for the purposes aforesaid can and ought to be granted and no scheme to that effect can either be proposed or approved. The modification is bad on the ground of malice, and abuse of power.

(3) The modification places an unreasonable restriction on the petitioners' right to carry on business and the profession as a motor driver and infringes the petitioners' rights, guaranteed under Article 19 (1) (g) of the Constitution and is not saved by Clause (2) to (6). The modification also contravenes the fundamental right of petitioner No. 2, under Article 19 (1) (f).

AND

(4) The modification has been published without the prior approval of the Central Government as required by law.

4. The petition, has been contested, on behalf of the respondents. Their reply to the various pleas of the petitioners is as follows:--

The modification does not aim at denationalization. It does not contravene the provisions of Ch. IV-A of the Act. The modification has not been made to make illegal gains. The modification is merely an arrangement by which private vehicles are made available, on contractual basis, to the State Transport Undertaking, for the implementation of the scheme of nationalization. The modification, thus, furthers the purposes of nationalization. The attached vehicles are to be run under the direct control and supervision of the State Transport Undertaking. There is nothing, to Ch. IV-A, barring private operators to run vehicles on the basis of permits, obtained in the name of the State Transport Undertaking. The modification, is not the result of malice or abuse of power. The approval of the Central Government had been obtained to the nationalization of the routes of private operators. As the modification did not involve any further exclusion, the approval of the Central Government, already, obtained was sufficient in law and no further approval to the modification was required. None of the fundamental rights of the petitioners or any other right has been infringed by the modification.

5. The respondents have also taken up some preliminary objections against the maintainability of the petition. One of the preliminary objections is that as none of the fundamental rights or any other right of the petitioners has been infringed, they have no locus standi to maintain the petition.

6. The preliminary objection, against thelocus standi of the petitioners, to maintain thepetition, has got validity. To maintain a petition, under Article 226 of the Constitution, forchallenging the validity of the modification, thepetitioners must show that they have a fundamental or a statutory right which has beeninfringed by the modification. It was held inCalcutta Gas Co. (Proprietary) Ltd. v. State ofWest Bengal, AIR 1962 SC 1044, that Article 226of the Constitution confers a very wide poweron the High Court and that persons other thanthose claiming fundamental rights can alsoapproach the Court seeking relief thereunder.It was observed:--

'The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extra-ordinary jurisdiction that the relief asked for must be one to enforce a legal right......

The right that can be enforced under Article 226 also shall ordinarily be the personal or the individual right of the petitioner himself,' p. 1047.

7. The petitioners contend that their fundamental rights under Article 19 (1) (g) and (f) of the Constitution have been infringed by the modification. The reply of the respondents to this contention is that no fundamental right of the petitioners has been infringed by the modification and further that the petitioners are barred, after the issue of the Proclamation of Emergency, by the President of India, under Article 352 of the Constitution, from challenging the validity of the modification on the ground that it has infringed their fundamental rights under Article 19 (1). The reply of the respondents appears to be well founded. On the Chinese aggression against India, in September 1962, the President of India had, on the 26th October, 1962, issued a Proclamation, under Article 352 (1) of the Constitution, that grave emergency existed whereby the security of India was threatened. One of the consequences of the issue of the Proclamation of Emergency was that fundamental rights under Article 19(1) were suspended, by virtue of the provisions of Article 358. This consequence was noticed in Makhan Singh v. State of Punjab, AIR 1964 SC 381. It wag observed:--

'It would be noticed that as soon as the Proclamation of Emergency has been issued under Article 352 and so long as it lasts, Article 19 is suspended and the power of the legislatures as well as the executive is to that extent mads wider. The suspension of Article 19 during the pendency of the Proclamation of Emergency removes the fetters created' on the legislative and executive powers by Article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by Article 19, their validity is not open to challenge either during the continuance of the emergency or even thereafter.'

8. The Proclamation of Emergency is still in force. The rights, under Article 19(1) still remain suspended. The petitioners, therefore, cannot challenge the validity of the impugned modification, on the ground that it contravenes their fundamental rights, under Article 19(1) of the Constitution. It is not in dispute that a scheme or a modification under Chapter IV-A of the Act, is a law within the meaning of Articles 19 and 358 of the Constitution, vide H. C. Narayanappa v. State of Mysore, AIR 1960 SC 1073.

9. The question, whether a citizen can challenge the validity of a law, promulgated after the issue of the Proclamation of Emergency, on the plea that his fundamental rights, under Article 19(1) of the Constitution, have been infringed was directly in point in Jan Mohammad Noor Mohammad v. State of Gujarat, AIR 1966 SC 385. The question was answered in the negative. In that case, the validity of certain provisions of the Gujarat Agricultural Produce Markets Act (20 of 1964) was challenged on the plea that they infringed the fundamental freedoms, guaranteed to the petitioner, under Articles 14, 19 and 31 of the Constitution. So far as the plea with respect to the contravention of fundamental rights under Article 19(1) was concerned, it was observed by their Lordships:

'It may at once be observed that the President of India having declared in the month of December 1962 a state of emergency in exercise of the powers reserved under, the Constitution, the right to enforce the fundamental rights guaranteed under Article 19 of the Constitution remains suspended by virtue of Article 358 for the duration of the period of the emergency. On this ground alone, a large majority of the contentions raised by counsel for the petitioner may fail. But we have heard full arguments on the petition and as the petitioner has attempted to urge that by the Act and the Rules and the Bye-laws the guaranteed freedoms under Arts. 14 and 31 are also infringed, we propose to decide this petition on the merits, apart from the preliminary objection as to the suspension of Article 19 which disentitle the petitioner during the subsistence of the emergency from obtaining any relief from this Court on the footing of the breach of his fundamental right to carry on business.' page 389.

10. The authorities, Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 and the State of Maharashtra v. Sanzgiri, AIR 1966 SC 424 relied upon by the learned counsel for the petitioners, are not applicable to the facts of the present case. Both the authorities related to detention, under the Defence of India Rules, and the interpretation of the Presidential Order, issued under Article 359 of the Constitution, suspending the right of any person to move any Court for the enforcement of rights conferred by Articles 21 and 22 of the Constitution for the period of the operation of the Proclamation of Emergency, if such person has been deprived of any such rights under the Defence of India Act or any Rule or Order made thereunder. It was held in both the authorities that the President's Order only barred the person, detained under the Defence of India Rules, from showing that his detention contravened his rights under Articles 21 and 22 but that it did not bar him from showing that his detention was, in fact, in contravention of, or was not authorized by, the provisions of the Defence of India Act or the Rules framed thereunder. None of the authorities related to the effect of the Proclamation of Emergency on the rights guaranteed under Article 19. As already stated, the rights guaranteed, under that Article, remain suspended by virtue of Article 358. The Order of the President, issued under Article 359, does not suspend the fundamental rights, specified therein. The Order only deprives the citizen of his right to move any Court for the enforcement of those rights.

11. The learned counsel for the petitioners had, also, referred to the case, Naresh Shridhar Mirajkar v. State of Maharashtra, Writ Petn. No. 5 of 1965, decided by the Supreme Court on 3-3-1966: (reported in AIR 1967 SC 1). In that case, a learned Judge of the High Court of Maharashtra had, on the 23rd October, 1964, verbally directed that the reports of the evidence of a witness should not be published during the pendency of the trial of a suit. The reporter of a newspaper questioned the validity of the order by a petition, under Article 226 of the Constitution. That petition was dismissed by the High Court. The reporter, then, filed a petition, under Article 32 of the Constitution in the Supreme Court. The plea was that the order, passed by the learned Judge of the High Court, contravened the fundamental rights of the petitioner, guaranteed under Article 19(1)(a), (d) and (g). The petition was rejected. One of the grounds, for rejection, was that it was singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter Drought before him for adjudication can affect the fundamental rights of a citizen under Article 19(1). The point that the petitioner was barred from challenging the validity of the order on the plea that his fundamental rights under Article 19(1) had been infringed because of the Proclamation of Emergency was not at all raised in the case. That case can, therefore, be of no assistance to the present petitioners.

12. It was, next, contended, on behalf of the petitioners, that the plea that a law infringes the fundamental rights, under Article 19(1). is barred only if the law is otherwise valid and that the petitioners were, therefore, entitled to show that the modification contravened the provisions of Chapter IV-A of the Act and was not valid. This, as was observed in Mohan Chowdhary v. Chief Commr. Union Territory of Tripura, AIR 1964 SC 173, is arguing in a circle. In order that the Court may investigate the validity of the impugned modification, at the instance of the petitioners, they should have a locus standi to move the Court. If they have no such locus standi, they have no right to challenge the vires of the modification on any ground, including the ground that it contravenes the provisions of Chapter IV-A of the Act.

13. The fundamental rights of the petitioners, under Article 19(1) remain suspended, on account of the continuance of the Proclamation of Emergency. The petitioners are not entitled to challenge the validity of the impugned modification on the ground that it contravenes their fundamental rights, under Article 19(1).

14. Apart from the fact, that the petitioners are, on account of the Proclamation of Emergency, barred from challenging the validity of the impugned modification on the plea that it contravenes their fundamental rights, under Article 19(l)(f) and (g), I am of the opinion that the petitioners have failed to show that any of their fundamental rights or legal rights have been infringed by the modification. Petitioner No. 1, being a Workers' Union, is a juristic person. Fundamental rights, under Article 19(1), of the Constitution, are available to natural persons only and not to a juristic person, vide State Trading Corporation of India, Ltd. v. Commercial Tax Officer, AIR 1963 SC 1811 and Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, AIR 1965 SC 40. Fundamental rights under Article 19(1) are not available to petitioner No. 1. No question of the infringement of those rights can arise so far as petitioner No. 1 is concerned.

15. It was argued, on behalf of the petitioners, that petitioner No. 1 had filed objections against the modification, before the State Government, and that he has, therefore, a right to maintain the petition, under Article 226 of the Constitution, questioning the validity of the modification. This argument does not appear to be well founded. The mere fact that petitioner No. 1 had filed objections against the modification cannot be said to constitute any interest or right so as to entitle petitioner No. 1 to invoke the jurisdiction of this Court, under Article 226 of the Constitution. The facts, in the case, Venkateswara Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828 cited by the learned counsel for the petitioners, were quite diferent from the facts to the present case. The petitioner, in that case, was the President of the Panchayat Samithi of village Dharmajigudem. The villagers of that village had formed a Committee with the petitioner as President, for the purpose of collecting contributions for the setting up a Primary Health Centre. The said Committee collected Rupees 10,000 and deposited the same with the Block Development Officer. The petitioner represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the location of the Primary Health Centre at Dharamjigudem village. The Centre was inaugurated at that village in the first instance. But later on, the Government, ordered that the Centre should be shifted to another village. The petitioner filed a petition, under Article 226 of the Constitution for quashing the order of the Government. The petition was dismissed by the High Court. The petitioner appealed to the Supreme Court by special leave. The locus standi of the petitioner to file the petition, under Article 226, was questioned. Their Lordships of the Supreme Court held that the conduct of the petitioner, the acquiescence on the part of the other members of the Committee and the treatment meted out to him by the authorities concerned supported the inference that the petitioner was authorized to act on behalf of the Committee and he, as the representative of the Committee, which was in law the trustees of the amounts collected by it from villagers, had a right to maintain the petition under Article 226. It was, further, held by their Lordships that the rights of the petitioner, who was a resident of village Dharmajigudem and the President of the Panchayat Samithi and was also the President of the Committee formed for collecting the funds, had been prejudicially affected by the order of the Government. None of the rights of petitioner No. 1 has been prejudicially affected by the modification, in the instant case.

16. Petitioner No. 2 was a driver in the service of the State Transport Undertaking. His services were terminated. Petitioners Nos. 3 to 5 are serving the State Transport Undertaking as drivers. It is difficult to understand how the impugned modificatipn which aims at the attachment of private trucks on payment of Rs. 6000 with the State Transport Undertaking could prejudicially affect any right of petitioners Nos. 2 to 5 who were not private truck operators but were only drivers. The plea of the petitioners that petitioner No. 2 was rendered unemployed as a consequence of the modification and that there was apprehension that petitioners Nos. 3 to 5 would also be rendered unemployed in course of time is without any substance. It was denied, on behalf of the respondents, that services of petitioner No. 2 were terminated as a result of the implementation of the modification. It was explained that petitioner No. 2 had been employed on daily wages and his services were terminated in accordance with the contract of his service for reasons wholly unconnected with the implementation of the modification. There is nothing on the record to show that the termination of the services of petitioner No. 2 had any connection with the modification.

17. So far as petitioners Nos. 8 to 5 are concerned, their retention in, and termination of, service will be governed by the terms and conditions of their contract of service and/or service rules and not by the impugned modification which affects only t private truck operators and not drivers. The apprehension of petitioners Nos. 3 to 5 that they would be rendered unemployed in consequence of the modification has no basis in fact and is merely imaginary.

18. The case for petitioner No. 6 was that he was a private truck operator and that his truck was attached with the State Transport Undertaking. The respondents denied that petitioner No. 6 was a private truck operator or that his truck was attached with the State Transport Undertaking. Petitioner No. 6 did not place any material on record to prove his allegation that he was a private truck operator whose truck was attached with the State Transport Undertaking. He did not care even to file his affidavit. On the other hand, the Chief Secretary, Himachal Pradesh Government, who was also Secretary (Transport), has filed an affidavit denying that petitioner No. 6 was a private operator or that his truck was attached with the State Transport Undertaking. Petitioner No. 6 has failed to prove that he is a private truck operator. His rights cannot be affected by the modification.

19. Lastly, it was contended, on behalf of the petitioners, that petitioners Nos. 2 to 6, as members of the public, has a common law right to ply vehicles for hire or reward on a public road and that the impugned modification has taken away that right. For the proposition that every member of the public has a common law right to run vehicles for hire on a high-way, reliance was placed on the following observations, made in Saghir Ahmad v. State of U. P., AIR 1954 SC 728:

'But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned Advocate-General that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State.' page 734.

20. The contention that the petitioners have any common law right, apart from the fundamental right, under Article 19(1)(g) of the Constitution, to ply vehicles for hire or reward on a public road does not appear to be sound. After the coming into force of the Constitution, the right to carry on business or any trade is to be founded on the provisions of Article 19(1)(g), and not on any theory of common law. The observations, in AIR 1954 SC 728, referred to by the learned counsel for the petitioners, do not support the proposition that there is a common law right, distinct from the right, guaranteed under Article 19(1)(g), to ply vehicles for hire on a public road. In fact, there was no question of the infringement of any common law right in the above case. The petitioners, in that case, who were plying motor vehicles on hire, had challenged the validity of the U. P. Road Transport Act which had given the State Transport Undertaking the exclusive right to operate Road Transport Services on the ground that the Act infringed the fundamental rights of the petitioners conferred by Article 19(1)(g) and other Articles of the Constitution. Their Lordships had struck down the Act, holding that it imposed an unreasonable restriction on the right of the petitioners guaranteed under Article 19(1)(g). Their Lordships did not hold that the petitioners had any common law right, apart from the right, under Article 19(1)(g), to ply vehicles for hire and that that common law right was infringed by the Act. The observations, referred to, were made in rejecting the argument of the learned Advocate-General that the only right which a member of the public can assert in respect of a highway is the right of passing and repassing and that a citizen has no right to carry on a trade or business, on a highway except under special sanction from the State. Their Lordships held that a citizen had a fundamental right, under Article 19(1)(g), to ply vehicles for hire on a highway, without any sanction from the State but subject to restrictions permissible under Clause (6) of Article 19.

21. Incidentally, it may be pointed out that the case, AIR 1954 SC 728, was decided, with reference to Clause (6) of Article 19, as it stood before its amendment by the Constitution (First Amendment) Act, 1951, introducing Sub-clause (ii). But the Amendment Act had come into force at the time of pronouncing the judgment. With reference to the amendment of Clause (6), it was observed by their Lordships, that no objection could be taken, after the amendment, that the law, creating a monopoly of a trade or business, in favour of the State, infringed the right of a citizen under Article 19(1)(g) of the Constitution.

22. The conclusion, from the above discussion, is that no fundamental or legal right of the petitioners has been contravened by the modification and further that the petitioners are barred, on account of the issue of the Proclamation of Emergency, from challenging the validity of the modification on the plea that it has infringed their fundamental rights under Article 19(1). It follows that the petitioners have no locus standi to question the validity of the modification. The petition is liable to be dismissed on this ground alone and it is unnecessary to go into other points.

23. Before parting with the case, it may be pointed out that arguments on merits of the petition were also heard and the learned counsel for the petitioners had requested that this Court should give decision about the validity of the modification, as well. But as the petitioners have no locus standi to maintain the petition for impugning the validity of the modification, it will be inexpedient and inappropriate to record a finding about the validity of the modification. I draw support for the above view from the observations of their Lordships of the Supreme Court made in AIR 1964 SC 381, supra. Their Lordships observed:

'In our opinion, the learned Attorney-General is right when he contends that we should not and cannot pronounce any opinion on the validity of the impugned Act if we come to the conclusion that the bar created by the Presidential Order operates against the detenues in the present cases.' page 405.

24. The above observations were made in cases where the petitioners had been detained under the Defence of India Rules and the Presidential Order issued under Article 359 of the Constitution suspended the right of a detenu to move a Court for the enforcement of the rights, conferred by Articles 21 and 22. But the observations are equally applicable to a case where the rights under Article 19(1) of the Constitution remain suspended on account of the issue of the Proclamation of Emergency and citizens are barred from challenging the validity of any law on the plea that those fundamental rights have been infringed by the law. I, therefore, refrain from pronouncing upon the validity or otherwise of the modification.

25. The result is that the petition is dismissed on the ground that the petitioners haveno locus standi to maintain it. As the petitionhas been dismissed on a preliminary objection,the parties are directed to bear their own costsof the petition.


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