Full Judgment Text
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PETITIONER:
KUMAON MOTOR UNION OWNERS LTD. AND ANOTHER.
Vs.
RESPONDENT:
THE STATE OF UTTAR PRADESH
DATE OF JUDGMENT:
08/10/1965
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1966 AIR 785 1966 SCR (2) 121
CITATOR INFO :
D 1967 SC1766 (24)
R 1979 SC1271 (7)
R 1991 SC 855 (58)
ACT:
Defence of India Rules, 1962 r. 131(2) (gg) and (i)-Powers
under Defence of India Act 1962 s. 43. If prevails over s.
68 B of Motor Vehicles Act read with s. 6(4) of Defence of
India Act-If order passed mala fide to avoid payment of
compensation.
Motor Vehicles Act, 1939 s. 68B--Ch. IV A.
HEADNOTE:
The respondent-State issued a notification under r.
131(2)(gg) and (i) of the Defence of India Rules,, 1962
directing to stop plying of all vehicles belonging to the
members of the appellant-union on a route in the border
region of the Country. The appellants filed writ petitions
in the High Court which were dismissed. In appeal to this
Court it was contended. that (i)the order was beyond the
power of the State under r. 131. (2) (gg) and (i) of the
Defence of India Rules; (ii) on a combined reading of s.
6(4) of the Defence of India Act and S. 68B of the Motor
Vehicles Act, the provisions of Ch. IV-A of the Motor
Vehicles Act with regard to the framing of schemes and
payment of compensation must be complied within where action
is taken under r. 131(2) (gg). and (i) of the Defence of
India Rules, and the act was mala fide; (iii) S. 44 of the
Defence of India Act had been contravened by the order; and
(iv) the satisfaction necessary for passing the order under
the Act and the Rules had not been shown by affidavits filed
on behalf of the State and therefore the condition precedent
to the passing of such an order was absent.
HELD: (i) The order passed by the State Government was
clearly within its powers under r. 131(2)(gg) and (i) of the
Defence of India Rules. [130 H]
When cl. (gg) envisaged prohibition or restriction of
carriage of persons or goods by any vehicle or class of
vehicles, it meant that the order would apply to persons
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plying such vehicles. [127 A]
The impugned order was good so long it came within r.
131(2)(gg) even though it may diminish the profit making
capacity of a commercial undertaking or even reduce it to
nothing in a particular line of business. [130 B-C]
Clause (i) of r. 131(2) was complementary to the other
clauses of r. 131(2). When the State decided to issue a
prohibition under cl. (gg) it must naturally provide for
alternative methods for the carriage of persons or goods on
the prohibited route and cl. (i) clearly makes provision for
this. [130 D-E]
(ii) Section 43 of the Defence of India Act must prevail in
the conflict which appears to be apparent between S. 43 on
one hand and S. 68B of the Motor Vehicles Act read with S.
6(4) of the Defence of India Act on the other. S. 43
appears in an Act which is later than Motor Vehicles Act,
and in such a Situation unless there is anything repugnant,
the provisions in the later Act must prevail; looking at the
object behind the two statutes, the Act which was passed to
meet an emergency arising out
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of foreign invasion of the country must prevail over an Act
meant to meet a situation arising out of the taking over of
motor transport by the state; and s. 43 emphatically says
that the Defence of India Act will prevail over any other
enactment and this suggests that the legislature intended
that the emergency legislation in the Defence of India Act
will be paramount if there is any inconsistency between it
and any other provision of any other law whatsoever. [128 A-
G]
The argument that the entire Motor Vehicles Act must be read
as a part of the Defence of India Act must be rejected and
in consequence s. 43 of the Defence of India Act will have
over-riding effect. The words "shall have effect" in s.
6(4) of the Defence of India Act, have to be read in the
context of that subsection and in that context means that
the Motor Vehicles Act will continue as before subject to
amendments made by s. 6(4). [129 B-E]
There was no question of the order being mala fide or been
passed as a device to avoid payment of compensation under
Ch. IVA. "The fact that at one stage nationalisation and
consequent payment of compensation under Ch. IV-A was under
consideration does not mean that if eventually action was
taken under s. 131(2) (gg) to stop activities prejudicial to
the defence of the country such action wag mala fide or was
merely a device to avoid payment of compensation. The long
period of almost four years which was taken, in coming to a
decision shows the circumspection with which the State acted
when it finally decided to pass an order under r.
131(2)(gg), 1131 E-G]
(iii) Action taken was not more than the situation
demanded and it did not violate s. 44 of the Defence of
India Act. It is for the person, who contends that an order
contravenes s. 44, to show that anything less than what the
order provides would have met the needs of the situation.
[132 C]
(iv) In view of the affidavit filed in this court on behalf
of the State, there could be no doubt that necessary
satisfaction of the State Government which is a condition
precedent for the issue of an order under the rules was
there before the impugned order was issued. [133 B-C]
JUDGMENT:
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CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 486 and
487 of 1965.
Appeals from the judgments dated the March 12, 1965 of the
Allahabad High Court in Civil Misc. Writ Nos. 4308 of 1965
and 4309 of 1965.
G. S. Pathak, B. Dutta, J. B. Dadachanji, O. C. Mathur and
Ravinder Narain for the appellant.
K. L. Misra, Advocate-General for the State of Uttar
Pradesh and O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Wanchoo J. These two appeals on certificates granted by the
Allahabad High Court raise common questions and will be
dealt with together. The appellant, Kumaon Motorowners’
Union Limited (hereinafter referred to as the union) was
established in 1939 and had at the date of the writ
petition’s. 330 members all of
123
whom owned transport vehicles. These members have public
carrier permits as well as stage carriage permits, which are
in force in the Kumaon region except on certain notified
routes. The permits of the various members of the union are
valid upto various dates falling in the years 1966 and 1967.
On August 17, 1964, the State Government purporting to exer-
cise powers under cls. (gg) and (i)_ of sub-rule (2) of r.
131 of the Defence of India Rules, 1962 (hereinafter
referred to as the Rules) issued a notification by which it
was directed that with effect from October 1, 1964, "no
private operators shall ply any vehicle, or class of
vehicles for the carriage of persons or goods on, and no
vehicle or class of vehicles operated by the private
operators shall pass through, Tanakpur-Dharchula route of
Kumaon region". It was further directed in the notification
that on this route, the U.P. Government Roadways vehicles
alone shall ply for the carriage persons and goods. This
result of this notification was to stop plying of all
vehicles belonging to the members of the union on, the route
in question and this led to the filing of the two petitions
in the High Court. The union was party to both the
petitions, which were in the same terms.
In the petitions the appellants challenged the notification
of’ August 17, 1964, and this challenge was based on four
grounds. In the first place, it was contended that no order
of the kind passed on August 17, 1964 could be passed under
r. 131 (2) (gg) and (i). In the second place, it was
contended that the U.P. Government was contemplating
nationalisation of this route in the Kumaon region for a
long time prior to August 1964. Eventually, however,
instead of proceeding with the scheme of nationalisation
which would have necessitated payment of compensation to
operators plying in the region, the Government decided to
circumvent the provisions of Ch. IV-A of the Motor Vehicles
Act, (No. 4 of 1939) and introduced nationalisation through
the device of an order under cls.(gg) and (i) of r. 131 (2)
of the Rules. So it 131 (2) of the Rules. So it was
conceded that the action of the State Government in
passing the challenged order was mala fide. Thirdly, it was
contended that s. 44 of the Defence of India Act, No. 51 of
1962, (hereinafter referred to as the Act) had been
contravened by the order. Lastly, the contention -was that
the satisfaction necessary for passing the order under the
Act and the Rules had not been shown by the affidavits filed
on behalf of the State Government and therefore the
condition precedent to the passing of such an order was
absent.
The petitions were opposed on behalf of the State
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Government. It was not disputed that at one time prior to
August 1964 the State
Sup C1166-9
124
Government had thought of nationalizing this route and this
matter was under consideration for sometime since 1962. But
the State Government justified the passing of the impugned
order on the ground that since 1960 reports had started
coming in from the State Intelligence Department that
certain anti-national and subversive elements were
infiltrating the transport Organisation and were exercising
influence over the drivers, employees and other private
operators of the union. As far back as October 1960, the
Deputy Commissioner, Almora had sent a report to Government
that it was necessary in the interest of national security
that, no new routes in Pithoragarh should be given for
operation to the union and that their operation should be
limited to Almora proper. Thereupon in a meeting of high
officials on November 14, 1960, it was decided that the
Deputy Inspector General Intelligence, should supply the
Transport Commissioner with a list of the ring leaders of
such anti-national elements, and the Transport Commissioner
should make efforts for the elimination of such elements
from the transport Organisation. It was also decided that
the management of the union should be asked to screen their
employees before they were employed and the police would be
ready to render assistance in the matter of verification of
antecedents of persons to be employed by the union.
Finally, it was also decided that the Transport Commissioner
should consider the question of running buses exclusively
owned by Government on the border routes.
Further meetings were held in January and August 1961 in
which it was pointed out that it was difficult to eliminate
undesirable elements from transport organizations on account
of existing labour laws. In the meantime, more reports had
come in of undesirable activities by workers of transport
organizations in the border region. Therefore, in May 1962,
it was tentatively decided by the State Government that the
real solution to the problem lay in the operation of
transport in the border areas by Government alone. In the
meantime the Transport Commissioner informed the Government
that as the union was a private concern, the transport
department could do nothing itself to eliminate these anti-
national elements from the union and that the management of
the union also appeared to be powerless in the matter.
Consequently in October 1962, the transport department was
asked to consider the question of nationalisation of some of
the border routes from the point of view of security.
This was the, situation when the Chinese attacked in October
1962. In November 1962, an employee of the union had to be
detained under r. 30 (1) (b) of the Rules as his activities
were
125
considered prejudicial to the defence of India and public
safety. The matter remained under consideration for another
year and in, October 1963 it was again impressed on the
Transport Commissioner to eliminate anti-national elements
from the transport organisations, including the union
serving in the border areas. The Transport Commissioner
however expressed his inability to do so and was then asked
to examine the implication of nationalisation of border
routes on the ground of security. In January 1964 it
appears that the transport department reported that
nationalisation would not be economical and that the
Government would stand to lose if it eliminated all private
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operators from this route and substituted government owned
vehicles in their place. Even so, it was finally decided in
August 1964 after the matter was put up before the Chief
Minister who dealt with matters arising out of the Act and
the Rules that in the interest of security, this route
should be taken away from private operators like the union
and that the transport department should run its own
vehicles on it. It was in consequence of this decision of
the Chief Minister finally made in July 1964 that the
impugned notification was issued on August 17, 1964.
On these averments, it was contended on behalf of the State
Government in the High Court that there was no mala fides in
eliminating operators from this route and entrusting it to
the transport department. It was further contended that
there was no contravention of s. 44 of the Act. Further it
was urged that the order in question was justified within
the terms of r. 131 (2) (gg) and (i) of the Rules. Lastly
it was contended that the order had been passed after the
necessary satisfaction of the Chief Minister.
The High Court negatived all the contentions raised on
behalf of the appellants. As to the satisfaction of the
Chief Minister before the issue of the impugned order, the
High Court was of the view that the affidavit filed on
behalf of the State Government was not very satisfactory;
but on the whole it came to the conclusion that the order
had been issued after the necessary satisfaction and
consequently the petitions were dismissed. The appellants
then obtained certificates from the High Court; and that is
how the matter has come up before us.
The same four points which were raised before the High Court
have been raised before us on behalf of the appellants. We
shall first consider the contention that the impugned order
is beyond the power of the State Government under r.
131(2)(gg) and (i). Rule 131 provides for control of road
and water transport. Sub-
126
rule (2) thereof with which we are particularly concerned
reads thus :
" (2) Without prejudice to any other provision
of these Rules, the Central Government or the
State Government may by general or special
order-
(a) to (g)
"(gg) provide for prohibiting or restricting
the carriage of persons or goods by any
vehicle or class of vehicles, either generally
or between any particular places or on any
particular, route;
(h)
(i) make such other provisions in relation
to road transport as appear to that Government
to be necessary or expedient for securing the
defence of India and civil defence, the public
safety, the maintenance of public order or the
efficient conduct of military operations, or
for maintaining supplies and services
essential to the life of the community."
The order of August 17, 1964 says that "in the opinion of
the State Government it is necessary and expedient so to do
for securing the defence of India and civil defence, the
public safety, the maintenance of public, order and the
efficient conduct of military operations and for maintaining
supplies and services essential to the life of the
community" and then follow the two directions which we have
set out above.
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The first contention on behalf of the appellants is that r.
131 (2) (gg) must be read in the context of control of
road transport and so read it only gives power to the State
Government to control the use of vehicles and does not
empower it to prohibit private operators from plying
vehicles on any particular route with respect to which the
order may be made. It is true that r. 131 deals inter alia
with control of road transport and cl. (gg) of r. 1 3 1 (2)
provides for prohibiting or restricting the carriage of
persons or goods by any vehicle or class of vehicles, either
generally or between any particular places or on any
particular route. But we are of opinion that the vehicles,
the control of which is envisaged in cl. (gg), cannot be
divorced from the persons who are plying the vehicles. No
order can be issued to vehicles which are inanimate objects
and an order under cl. (gg) will have to be issued to the
persons plying the vehicles and the prohibition or
restriction envisaged by cl. (gg) must be addressed to
persons plying the
127
vehicles mentioned therein. -Therefore when cl. (gg)
envisages prohibition or restriction of carriage of persons
or goods by any vehicle or class of vehicles, it obviously
means that the order will apply to persons plying such
vehicles. The argument based on divorcing vehicles from
persons plying the vehicles is in our opinion completely
fallacious and consequently when cl. (gg) provides for
prohibition or restriction with respect to vehicles, it
obviously refers to regulation of the conduct of persons
plying the vehicles or prohibiting them completely from
plying vehicles. We think that is the only way to carry out
the purposes of this clause.
In this connection our attention is drawn to S. 6 (4) of the
Act, which lays down that during the continuance in force of
the Act, the Motor Vehicles Act, 1939, shall have effect
subject to certain provisions specified in cls. (a) to (f).
The provisions in cls. (a) to (f) make certain changes in
the provisions of the Motor Vehicles Act with which we-are
not concerned in the present appeals. The argument however
is that this provision shows that the Motor Vehicles Act
will have full force and effect subject to the amendments
mentioned in cls. (a) to (f) and therefore it was not open
to the State Government to take over the route in question
and exclude private operators altogether without paying
compensations provided in chapter IV-A of the Motor
vehicles Act. Attention has also been invited to s. 68-B of
the Motor Vehicles Act, which appears in Ch. IV-A and
provides that "the provisions of this Chapter and the rules
and orders made thereunder shall have effect notwithstanding
anything inconsistent therewith contained in Chapter IV of
this Act or in any other law for the time being in force or
in any instrument having effect by virtue of any such law".
"It is urged on a combined reading of s. 6 (4) of the Act
and s- 68- Motor Vehicles Act that the provisions of Ch. IV-
A with regard to the framing of schemes and payment of
compensation must be complied with even where action is
taken under r. 131 (2) (gg) of the Rules.
This argument is met on behalf of the State by reference to
S. 43 of the Act which lays down that "the provisions of
this Act or any rule made thereunder or any order made under
any such rule shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than
this Act or in any instrument having effect by virtue of any
enactment other than this Act." It does appear that there is
some apparent conflict between s. 43 on the one hand and s.
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68-B of the Motor Vehicles Act read with S. 6 (4) of the Act
on the other, and that conflict has
128
to be resolved. The only way to do it is to decide whether
in such a situation, S. 43 of the Act will prevail or S. 68-
B of the Motor Vehicles Act will prevail. We are of opinion
that s. 43 of the Act must prevail. In the first place, s.
43 appears in an Act which is later than the Motor Vehicles
Act and therefore in such a situation unless there is
anything repugnant, the provisions in the later Act must
prevail. Secondly, if we look at the object behind the two
statutes, namely, the Act and the Motor Vehicles Act, there
can be no doubt that the Act, which was passed to meet an
emergency arising out of the Chinese invasion of India in
1962, must prevail over the provisions contained in Ch. IV-
A of the Motor Vehicles Act which were meant to meet a
situation arising out of the taking over of motor transport
by the State. Thirdly, if we compare the language of S. 43
of the Act with S. 68-B of the Motor Vehicles Act we find
that the language of S. 43 is more- emphatic than the
language of s. 68-B. Section 43 provides that the provi-
sions of the Act or any rule made thereunder shall have
effect notwithstanding anything inconsistent therewith
contained in any enactment other than the Act. This would
show that the intention of the legislature was that the Act
shall prevail over other statutes. But we do not find the
same emphatic language in S. 68-B which lays down that the
provisions of Ch. IV-A would prevail notwithstanding
anything inconsistent therewith contained in Ch. IV of the
Motor Vehicles Act or in any other law for the time being in
force. The intention seems to be clear in view of the
collocation of the words "in Chapter IV of this Act" with
the words "in any other law for the time being in force"
that Ch. IV-A was to prevail over Ch. IV of the Motor
Vehicles Act or over any other law of the same kind dealing
with motor vehicles or for compensation. On the other hand
s. 43 of the Act emphatically says that the Act will prevail
over any enactment other than the Act, and this suggests
that the legislature intended that the emergency legislation
in the Act will be paramount if there is any inconsistency
between it and any other provision of any other law
whatsoever. Such a provision is understandable in view of
the emergency which led to the passing of the Act.
Another argument under S. 6 (4) of the Act is that by that
provision the Motor Vehicles Act must be held to derive its
authority from the Act and thus be treated as if it was a
part of the Act. Emphasis is laid on the words "shall have
effect" in this connection and it is urged that by virtue of
these words, the Motor Vehicles Act must be deemed to derive
its authority from the Act and therefore must be treated as
part thereof. In consequence, it is said
129
that s. 43 which lays down that the Act and the Rules
thereunder shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than
the Act will not apply because the Motor Vehicles Act is a
part of the Act. We are of opinion that there is no force
in this argument. The words "shall have effect" appearing
in s. 6(4) of the Act have to be read in the context of that
sub-section, In that context they only mean’ that the Motor
Vehicles Act will continue as before subject to the
amendments made by s. 6(4). These words in the context of
s. 6 (4) do not mean that the entire Motor Vehicles Act is
being made a part of the Act; and it is only the six clauses
making changes in the Motor Vehicles Act which can at the,
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best be treated as part of the Act. The over-riding effect
given to orders passed under the Act and the Rules by s. 43
of the Act cannot therefore be taken away with respect to
the provisions of the Motor Vehicles Act other than clauses
(a) to (f) of s. 6 (4). It is not in dispute that we are
not concerned in the present case with cls. (a) to (f) and
as a matter of fact if we look at these clauses they are
concerned with making provisions which over-ride certain
provisions of the Motor Vehicles Act. The argument that the
entire Motor Vehicles Act must be read as a part of the Act
must therefore be rejected and in consequence s. 43 of the
Act will have over-riding effect in accordance with its
tenor.
In view therefore of the provisions contained in S. 43
of the Act which as we have said already was passed to meet
a grave national emergency, the argument that the provisions
contained in Ch. IV-A for framing a scheme and paying
compensation must still be complied with where action is
taken under r. 131 (2) (gg) of the Act must be rejected.
Then it is urged that by passing the impugned order,
the commercial undertaking of the union is destroyed, and
that this could not be the intention behind cl. (gg) of r. 1
3 1 (2) of the Rules. We are of opinion that in this case
there is no destruction of the commercial undertaking of the
union, for the simple reason that it is not disputed that
this is not the only route on which the union is plying its
vehicles and the impugned order does not touch the other
routes on which the appellants may be plying their vehicles.
Further there is nothing in the order which destroys the
commercial undertaking even otherwise, for it has neither
taken over any of the assets of the commercial undertaking
nor has it in any way interfered with the working of the
commercial undertaking; all that the order provides is that
the union shall not ply its vehicles on a particular route.
This in our opinion does not amount to destroying the
commercial un-
130
dertaking which is left untouched by the order. All that
may be said to have resulted from the order is that the
profit making capacity of the commercial undertaking might
have been reduced to a certain extent. That however does
not in our opinion mean that the commercial undertaking has
been destroyed. We may add that even if the profit making
capacity of the commercial undertaking was lost due to one
line of business being stopped that would not amount to
destruction of the commercial undertaking, which could take
up other business. So long as the order under cl. (gg) of
r. 131(2) comes within the terms of that clause, it will be
good even though it may diminish the profit making capacity
of a commercial undertaking or even reduce it to nothing in
a particular -line of business. We are therefore of opinion
that the impugned ’order is in accordance with the terms of
cl. (gg), sub-r. (2) of r. 131 and cannot be said to go
beyond the powers conferred on the State Government by that
clause.
Lastly it is urged that in any case the second part of the
order which directs that the Roadways Vehicles will only ply
for carriage of persons and goods on the route in question
cannot fall under cl. (1) of r. 131(2). We have already set
out cl. (1). That clause in a sense is complementary to the
provisions of other clauses of r. 131(2). Where the State
Government decides to issue a prohibition under cl. (gg), it
must naturally provide for alternative methods for the
carriage of persons or goods on the prohibited route and cl.
(1) clearly makes provision for this. It gives powers to
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the State Government to make such other provisions in
relation to road transport as appear to it to be necessary
-or expedient for securing the defence of India, etc.
Obviously when the State Government, as in this case,
prohibited the union from plying its vehicles on this
particular route, a vacuum was created in the matter of
carriage of persons and goods. That vacuum had to be filled
in the interest of securing the defence of India, civil
defence etc. To fill that vacuum the State Government
directed that U.P. Government Roadways vehicles shall ply
for the same purpose on this route. Clearly the vacuum was
filled by the Roadways, because that Organisation was
readily available to Government to fill it. Otherwise we
have no doubt that the Government could have made some other
arrangement to fill the vacuum. Therefore, whether the
vacuum was filled by ordering the Roadways to ply their
vehicles on the route in question or by making any other
arrangement, that would clearly be within the power of the
State Government under cl. (1) of r. 131(2). We are
therefore of opinion that the order passed by the State
Government
131
on August 17, 1964 was within its powers under r., 131 (2)
(gg) and (i) of the Rules.
This brings us to the question of mala fides. The argument
is that the order was passed under r. 131 (2) (gg) in order
to avoid payment of compensation by taking action under Ch.
IV-A of the Motor Vehicles Act. In that connection we have
already set out the affidavit filed on behalf of the State
Government as to how the order came to be passed. We have
no reason to think that the averments made in the affidavit
with regard to subversive activities on the border of India
with China are not correct. In view of the facts mentioned
therein there can be no doubt that the action under r.
131(2) (gg) was taken as stated in the order for the purpose
of the defence of India, civil defence, the public safety,
the maintenance of public order and the efficient conduct of
military operations, and for maintaining supplies and
services essential to the life of the community. It is true
that at one stage the State Government was thinking of
nationalising this particular route and if that scheme had
gone through, action would have had to be taken under Ch.
IV-A of the Motor Vehicles Act. But the reports as to sub-
versive activities which were thought to be prejudicial to
the defence of India had started to come in as far back as
1960 long before the ’Chinese invasion of India and the
matter was under consideration for almost four years before
the impugned order was passed. The question became urgent
after the Chinese invasion of India in October 1962. Even
so, the State Government explored various means of stopping
activities prejudicial to the defence of India on the border
between India and China. There can be no doubt that the
matter was considered from all aspects and eventually it was
decided to take action under r. 131 (2) (gg) of the Rules.
In these circumstances it cannot possibly be said that the
action was mala fide and was taken to avoid payment of
compensation under Ch. IV-A. The fact that at one stage
nationalisation and consequent payment of compensation under
Ch. IV-A was under consideration does not mean that if
eventually action was taken under r. 131 (2) (gg) to stop
activities prejudicial to the defence of India such action
was mala fide or was merely a device to avoid payment of
compensation. The long period of almost four years which
was taken for coming to a decision shows the circumspection
with which the State Government acted when it finally
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decided to pass the order under r. 131(2) (gg). We are
therefore of opinion that there is no question of the order
being mala fide or having been passed as a device to avoid
payment of compensation under Ch. IV-A of the Motor Vehicles
Act. Some of the words used in the counter-affidavit on
behalf of the State Government in reply
132
are somewhat Unfortunate and inapt, but we have no doubt
that, the impugned order was passed without any mala fide
and was not a device merely to avoid payment of
compensation.
Then we come to the argument that the action taken was more,
than the situation demanded and therefore under s. 44 of the
Act the order was vitiated. Section 44 provides that "any
authority or person acting in pursuance of this Act shall
interfere with the ordinary avocation of life and the
enjoyment of property as little as may be consonant with the
purpose of ensuring the public safety and interest and the
defence of India and civil defence". We are of opinion that
if a person contends that a particular order contravenes s.
44, it is for him to show that anything less than what the
order provides would have met the needs of the situation.
In the present case the appellants have failed to show any
such thing. Besides the affidavit filed on behalf of the
State Government shows that for a long time attempts were
made to see if the prejudicial activities complained of
could be stopped in any Other Way. It was only when it was
felt that there was no other way of stopping the prejudicial
activities of the employees of the union that the order in
question was passed. In the circumstances we are not
prepared to hold that the order in question interferes with
the rights of the appellants more than was necessary for the
purpose to be attained.
This brings us to the last point that has been urged on
behalf of the appellants, namely, that it was not proved
that the State ’Government was satisfied that it was
necessary and expedient for securing the defence of India
and civil defence, the public safety, the maintenance of
public order and the efficient conduct of military
operations and for maintaining supplies and services
essential to ’the life of the community that the order
should be passed. It does appear that the affidavits filed
in the High Court were not quite clear on this point.
Therefore we gave an opportunity to the State Government to
file an affidavit to show that the satisfaction of the State
Government necessary before passing an order of this kind
was arrived at. In consequence an affidavit was filed on
behalf of the State Government on August 16, 1965 by the
Deputy Secretary (Home Department) U.P. Government, Lucknow.
In that affidavit it has been stated that under the rules
relating to the allocation of business, matters relating to
the subject matter which led to the issue of the impugned
notification have to be submitted to the Chief Minister
before the issue of orders. It was further stated that
after various meetings of the officials of the State, the
matter was put up before
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The Chief Minister on December 5, 1963 or so and the Chief
Minister after considering all aspects decided that it was
necessary to take over the route in question. The matters
were further considered by various officers and there was
correspondence with the Government of India and eventually
on July 30, 1964, it was finally decided by the Chief
Minister to take over the route in question in the interest
of security. It was thereafter that the order of August 17,
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1964 was issued by the Transport department with the
concurrence and approval of the Home Department. In view of
this affidavit filed in this Court there can be no doubt
that the necessary satisfaction of the State Government
which is a condition precedent for the issue of an order
under the rules was there before the impugned order was
issued.
The appeals therefore fail and are hereby dismissed. In the
circumstances we order the parties to bear their own costs.
Appeals dismissed.
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