Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
THE PARBHANI TRANSPORT CO-OPERATIVE SOCIETY LTD.
Vs.
RESPONDENT:
THE REGIONAL TRANSPORT AUTHORITY,AURANGABAD AND OTHERS
DATE OF JUDGMENT:
07/03/1960
BENCH:
SARKAR, A.K.
BENCH:
SARKAR, A.K.
SINHA, BHUVNESHWAR P.(CJ)
IMAM, SYED JAFFER
WANCHOO, K.N.
SHAH, J.C.
CITATION:
1960 AIR 801 1960 SCR (3) 177
CITATOR INFO :
R 1962 SC1621 (17,38,90)
D 1963 SC1047 (26)
MV 1966 SC1089 (54)
R 1967 SC 1 (48,80)
RF 1967 SC1815 (16)
F 1977 SC 842 (17,19)
RF 1981 SC 660 (7)
RF 1981 SC2198 (21)
ACT:
Motor Vehicles-Grant of stage carriage Permit to Government
under Ch. IV-Constitutional validity--Motor Vehicles Act,
1939 (4 Of 1939), as amended by Act 100 of 1956, ch. IV.
ss. 42, 47, ch, IV A, s. 68F(1)-Constitution of India, Arts.
19(1)(g), 14.
HEADNOTE:
The petitioner, a registered co-operative society, carrying
on the business of plying motor buses as stage carriages,
had permits for four routes which were due to expire. The
State applied for permits for all these routes under Ch. IV
of the Motor Vehicles Act, 1939, as amended by Act 100 of
956, and the petitioner applied for renewal of its own
permits. The Regional Transport Authority rejected the
petitioner’s applications and granted those of the State.
The petitioner’s appeal to the State Transport Authority was
rejected. But the High Court quashed the said orders under
Art. 226 and directed a
(1) [1954] 26 I.T.R. 351. (2) [1955] 28 I.T.R. 914.
(3) [1957] 31 I.T.R.250.
23
178
reconsideration of the matter. The State published a scheme
under s. 68C, Ch. IVA, of the Act. The scheme was not
however finalised. Thereafter the Regional Transport
Authority, purporting to reconsider the matter as directed
by the High Court, rejected the petitioner’s applications
for renewal and granted those of the State for permits. It
was contended on behalf of the petitioner that in view of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
Ch. IVA of the Act, the State had no right to apply for
permits except thereunder and the grant of permits on
applications made under Ch. IV was, therefore, illegal and
infringed the petitioner’s fundamental rights under Arts.
19(1)(g) of the Constitution. It was further contended that
the order violated Art. 14 as well.
Held, that both the contentions were without substance and
must fail.
The Motor Vehicles Act, 1939, as amended by Act 100 of 1956,
lays down two independent sets of provisions relating to
running of buses by the Government, one tinder Ch. IV and
the other Ch. IVA of the Act. The latter chapter by s.
68F(1) confers a special advantage on the Government when it
proceeds under that chapter and entitles it to the necessary
permits as a matter of right. Under Ch. IV of the Act,
however, the Government cannot claim any such advantage. It
has to compete with other applicants. The powers conferred
by the two chapters being thus not one but two different
powers, the principle enunciated in Nazir Ahmad’s case has
no application. Since, therefore, the Government had a
distinct right to apply for permits under Ch. IV of the
Act, no question of applying for permits without the right
to do so and thereby infringing the petitioner’s fundamental
right under Art. 19(1)(g) could arise.
Nazir Ahmad v. King Emperor, (1936) L.R. 63 I.A. 372, held
inapplicable.
Taylor v. Taylor, (1876) 1 Ch. D. 426, distinguished.
Nor could the maxim expressio unius est exclusio alter us be
of any help to the petitioner. That maxim has its utility
in ascertaining the intention of the legislature. Since S.
42(3)(a) of the Motor Vehicles Act leaves no manner of doubt
as to that intention by its clear indication that the
Government cannot run buses as a commercial enterprise
without first obtaining permitsunder S. 42(1) Of the Act,
that maxim cannot operate so as to imply a prohibition
against applying under Ch. IV of the Act.
There was therefore, no reason for holding that Ch. IVA of
the Act contained the only provision under which the Govern-
ment could be allowed to ply stage carriages.
Viscountess Rhondda’s claim, (1922) 2 A.C. 339 and Motilal
v. Government of Uttar Pyadesh, (1955) 1 I.L.R. All. 269,
considered.
It was not correct to say that the State was not intended to
compete with private citizens in obtaining permits under Ch.
IV of the Act. Section 47 of the Act lends no support to
such a proposition and Art. 19(6) of the Constitution
indicates that the Government can enter into such
competition without infringing any of the fundamental
rights.
179
The Regional Transport Authority in granting permits acts in
a quasi-judicial capacity. If its decision was in any way
erroneous having regard to the proviso to s. 47(1) of the
Act, that could not amount to a violation of Art. 14 of the
Constitution. The petitioner had other remedies open to
him. Nor could Ch. IV of the Act be said, in view of Art.
19(6) of the Constitution, to offend that Article by
permitting open competition between the State and a private
citizen.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 110 of 1959.
Writ Petition under Article 32 of the Constitution of India
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
for enforcement of Fundamental rights.
B.R. L. Iyengar and Shankar Anand, for the petitioners.
M. C. Setalvad, Attorney General for India, B. Sen,R.
Gopalakrishnan R. H. Dhebar and T. M. Sen, for the
respondents.
1960. March, 7. The Judgment of the Court was delivered by
SARKAR, J.-The petitioner is a co-operative society duly
registered and it carries on the business of plying motor
buses as stage carriages on the public highways in the State
of Bombay. Its case in this petition is that it has been
deprived of its right to carry on this business and has also
been subjected to discriminatory treatment in the matter of
the grant of permits to run its buses. It complains of the
infringement of its fundamental rights under arts. 19(1)(g)
and 14 of the Constitution.
The questions raised in this matter turn on some of the
provisions of the Motor Vehicles Act, 1939, as amended by
Act 100 of 1956. These provisions have to be examined
before proceeding to discuss the questions that arise. We
are concerned only with Chapters IV and IVA of the Act.
Chapter IV comprises ss. 42 to 68 and Chapter IVA, which was
in its entirety introduced by the amending Act, consists of
ss. 68A to 681.
Taking Chapter IV first, we find that s. 42(1) provides that
no owner of a transport vehicle shall use or permit the use
of the vehicle in any public place save in accordance with
the conditions of a permit granted under the Act. A "
transport vehicle " is defined in s. 2(33) as a public
service vehicle or a goods vehicle. Clause (a) of sub-sec.
(3) of s. 42 as it originally stood
180
provided that sub-sec. (1) of that section would not apply
to any transport vehicle owned by or on behalf of the
Central Government or a State Government other than a
vehicle used in connection with the business of a railway.
So under it the Government could ply stage carriages on. the
public highways without having to obtain permits in respect
of them. The amending Act of 1956 substituted a, new clause
(a) in s. 42(3) for the old clause. The new cl. (a)
provides that sub-sec. (1) shall not apply to any transport
vehicle owned by the Central Government or a State
Government and used for Government purposes unconnected with
any commercial enterprise. Since the amendment, therefore,
the Government cannot run stage carriages on the public
highways without a permit, just as a private owner of stage
carriages cannot do, because such use of the vehicles will
not be for a purpose unconnected with a commercial
enterprise. Section 44 authorises a State Government to
constitute a State Transport Authority and Regional Trans-
port Authorities for different areas in that State to carry
out the duties specified. Section 45 provides that every
application for a permit shall be made to the Regional
Transport Authority of the region in which it is proposed to
use the vehicle. Section 47 specifies the matters to which
a Regional Transport Authority shall have regard in
considering an application for the grant of a permit.
We now come to Chapter IVA. Section 68A(b) defines a "
State transport undertaking " for the purpose of the Chapter
to mean an undertaking providing road transport service,
carried on, among others, by a State Government. Section
68B provides that the provisions of Chapter IVA shall have
effect notwithstanding anything to the contrary contained in
Chapter IV. Section 68C is in these terms:
68C. Where any State transport undertaking is of opinion
that for the purpose of providing an efficient, adequate,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
economical and properly coordinated road transport service,
it is necessary in the public interest that road transport
services in general or any particular class of such service,
in relation to any area or route or portion thereof
181
should be run and operated by the State transport
undertaking, whether to the exclusion, complete or partial,
of other persons or otherwise, the State’ transport
undertaking may prepare a scheme giving particulars of the
nature of the services proposed to be rendered, the area or
route proposed to be covered and such other particulars
respecting thereto as may be prescribed, and shall cause
every such scheme to be published in the Official Gazette
and also in such other manner as the State Government May
direct.
Section 68D provides for the preferring of objections to the
scheme published under s. 68C, consideration of such
objections and final approval of the scheme by the State
Government. The terms of s. 68F(1) are as follows :-
S.68F. (1) Where, in pursuance of an approved scheme, any
State transport undertaking applies in the manner specified
in Chapter IV for a stage carriage permit or a public
carrier’s permit or a contract carriage permit in respect of
a notified area or notified route, the Regional Transport
Authority shall issue such permit to the State transport
under. taking, notwithstanding anything to the contrary
contained in Chapter IV.
The respondents to this petition are (1) The Regional
Transport Authority, Aurangabad, (2) The State Transport
Authority, Bombay, (3) The Divisional Controller of State
Transport, Marathwada and (4) The State. of Bombay.
Aurangabad and Maratliwada are both in the State of Bombay.
The first and second respondents are the authorities set up
under s. 44 of the Act by the Government of Bombay. It is
the duty of the first respondent to consider applications
for and to grant, permits for stage carriages to be plied in
Aurangabad region and the second respondent hears appeals
from the decisions of the first respondent. The third
respondent is the head of a department of the Government of
the State of Bombay and is in charge of public transport
work in Marathwada.
It appears that the petitioner had permits to run buses on
four routes in Aurangabad and that these
182
permits were due to expire on October 1, 1958. The third
respondent who really represents the Government of the State
of Bombay and who may be conveniently referred to as the
State of Bombay, had permits for two of these routes. On
May 19, 1958, the State of Bombay applied for permits for
all these four routes under Chapter IV of the Act. On May
27, 1958, the petitioner applied for renewal of its existing
permits. The first respondent rejected the application of
the petitioner and granted those of the State of Bombay.
The petitioner appealed to the second respondent but its
appeal was rejected. In the meantime on some date which
does not appear on the record, the petitioner had been
granted temporary permits up to December 31, 1958. On the
expire of its temporary permits on December 31, 1958, the
petitioner would have been unable to run any of its buses
and it therefore moved the High Court at Bombay under art.
226 of the Constitution and the High Court quashed the
orders of respondents Nos. 1 and 2 and directed the
applications of the petitioner and the State of Bombay for
the permits to be reconsidered. With the reasons of this
order of the High Court we are not concerned. Respondent
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
No. 1, however, without reconsidering the applications as
directed by the High Court, granted temporary permits to the
State of Bombay. The petitioner again moved the High Court
which thereupon quashed the order of respondent No. 1
granting temporary permits to the State of Bombay.
Thereafter, on March 20, 1959, the respondent No. 1 granted
temporary permits to the petitioner which were later
extended to July 20, 1959. On June 1, 1959, the State of
Bombay publish’ed a scheme under s. 68C in Chapter IVA of
the Act. Various objections were filed against the scheme
and nothing further appears to have been done to make the
scheme final. On July 18, 1959, respondent No. 1 purporting
to carry out the directions of the High Court, reconsidered
the petitioner’s applications for renewal and the
applications of the State of Bombay for permits and rejected
the petitioner’s applications while allowing those of the
State of Bombay. On July, 20, 1959, the petitioner’s
temporary permits
183
having expired, it ceased to operate its buses. On August
27, 1959, the petitioner filed the present petition in this
Court under art. 32 of the Constitution for’ appropriate
writs quashing the order of respondent No. 1 dated July 18,
1959, restraining the State of Bombay from applying for
permits save under the provisions of Chapter IVA and
respondent No. 1 from entertaining any application by the
State of Bombay under Chapter IV and directing respondent
No. 1 to hear the petitioner’s applications for permits
according to law. Various grounds have been advanced in
support of the petition and these will now be discussed.
The petitioner first contends that in view of chapter IV-A
the State of Bombay bad no right to apply for permits under
Chapter IV of the Act as it had done. It says that the
order of the first respondent granting permits to the State
of Bombay Under chapter IV was therefore illegal and
affected its fundamental rights under art. 19(1) (g).
The first question then is whether the State of Bombay was
entitled to apply for permits under Chapter IV. The
petitioner says that special provisions having been made in
Chapter IVA to enable the Government to run its buses the
Government’s right to run buses was restricted to those
provisions and the Government was not entitled to resort to
the other provisions of the Act. In support of this con-
tention reference was made to the case of Nazir Ahmad v.
King Emperor(1) where it was observed that "where a power is
given to do a certain thing in a certain way the thing must
be done in that way or not at all." But this principle can
apply only where one power is given and has no application
where more powers than one are conferred. If a statute
contains, provisions giving more than one power, then the
rule cannot be applied so as to take away the powers
conferred by anyone of these provisions. As pointed out in
Taylor v. Taylor(2 ) referred to by the judicial Committee
in Nazir Ahmad’s case (1) "When a statutory power is
conferred for the first time upon a Court, and the mode of
exercising it is pointed out, it means that no other mode is
to be adopted."
1. (1936) L.R. 63 I.A 372. 381.
(2) ((1876) 1 Ch. D 426, 431.
184
Now the position here is different. The Government has of
course the power to do any business it likes and therefore
the business of running stage carriages. We have earlier
drawn attention to the change made in cl, (a) of s. 42(3) by
the amendment of 1956. Previously, it was not necessary for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
the Government to obtain permits under s. 42(1) for buses
that it intended to run as stage carriages. Since the
amendment the Government can no longer run transport
vehicles for commercial purposes without obtaining permits
unders.42(1). Now the plying of buses as stage carriages is
a commercial enterprise and for such buses, therefore, under
the sections as they stand, the Government would require
permits as any one else. That being so, the sections
clearly contemplate that the Government may apply for and
obtain permits for its buses run as stage carriages. The
rule applied in Nazir Ahmad’s case (1) does not permit the
ordinary meaning of s. 42, sub-s. (1) and sub-s. (3), cl. (
a) to be cut down because of the provisions of Chapter IVA.
The Act lays down two independent sets of provisions in
regard to the running of buses by the Government, one, under
Chapter IV and the other under Chapter IVA. Chapter IVA was
intended to give the Government, a special advantage. When
the Government chooses to proceed under that chapter, it
becomes entitled as a matter of right under s. 68F (1) to
the necessary permits. Under Chapter IV the Government does
not have any such advantage; it has to compete with other
applicants, to secure permits to be able, to run its buses.
The powers under the two Chapters are therefore difference
To such a case the principle of Nazir Ahmad’s case (1)
cannot be applied.
The learned counsel for the petitioner also referred to the
maxim expression units est exclusio alterius and contended
that since the Act by Chapter IVA provided that the
Government would be entitled to run buses under a scheme it
impliedly prohibited the running of buses by the Government
otherwise. It does not seem to us that this maxim carries
the matter further. It is a maxim for ascertaining the
(1) [1936] L.R. 63 I.A. 372, 381
185
intention of the legislature. Where the statutory language
is plain and the meaning clear, there is no scope for
applying the rule. Section 42(3) (a) appears to us to be
perfectly plain in its terms. It contemplates that the
Government has to apply for permits under s. 42(1) to run
buses as a commercial enterprise. That being so, the maxim
cannot, be resorted to for/ ascertaining the intention of
the legislature and implying a prohibition against the
Government applying for permits under Chapter IV.
The learned counsel then referred to the case of Viscounts
Rhondda’s claim (1), where it was observed at p. 365 that
"The words of the statute are to be construed so as to
ascertain the mind of the Legislature from the natural and
grammatical meaning of the words which it has used, and in
so construing them the existing state of the law, the,
mischiefs to be remedied, and the defects to be amended, may
legitimately be looked at together with the general scheme
of the Act." His point is that Chapter IVA was introduced by
the amendment of 1956 to meet the observations made in Moti
Lal v. Government of Uttar Pradesh (2 ) and some other cases
that s. 42(3)(a) was discriminatory in that it exempted the
Government from the requirement of a permit and was hence
void as offending art. 14 of the Constitution. It is said
that Chapter IVA must, therefore, be construed as containing
the only provisions enabling the Government to run a stage
carriage. It is difficult to appreciate this contention.
The observations in the cases referred to, had been made in
regard to cl. (a) of s. 42(3) as it stood before its
amendment in 1956. That section has been amended and as it
now stands it is not discriminatory. The evil pointed out
no more exists and no question of reading the Act keeping in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
view that evil of discrimination, arises. We find nothing
in Moti Lal’s case (2) or any other case which points to an
evil nor has the learned counsel drawn our attention to any,
which the Act can be said to have intended to remedy. We,
therefore, find no justification for reading Chapter IVA as
containing
(1) (1922) 2 A.C. 339. (2) (1951) 1 I.L.R. AU. 269.
24
186
the only provisions under which the Government can ply stage
carriages.
It is next said s. 42 contemplates the owner of a transport
vehicle obtaining a permit and a "State transport
undertaking" cannot apply for a permit under Chapter IV as
it cannot be such,owner. But here we are not concerned with
a State transport undertaking for that comes into existence
for the purposes of Chapter IVA and that Chapter has not
been resorted to by the Government yet. Here the Government
applied for the permits under Chapter IV. The Government
can of course be the owner of transport vehicles. We have
earlier said that in view of cl. (a) of s. 42(3) the
Government has to apply for permits under s. 42(1) as any
other owner. Therefore the Act contemplates the Government
as owner of transport vehicles. Further, under s. 68A a
"State transport undertaking " has been defined as an under-
taking providing road transport service carried on by a
state Government. Such an undertaking is really a
department of a Government and in order to be able ,to
provide transport service, it must be able to own transport
vehicles. In fact s. 68F(1) requires the State transport
undertaking to apply for permits under Chapter IV and
therefore contemplates it as an owner of a transport vehicle
for the purposes of s. 42 which is contained in that
Chapter.
The learned counsel then referred to the concluding portion
of s. 47(1) which makes it incumbent on the authority
considering applications for permits to take into
consideration the representations made by the persons
therein mentioned. He said that the persons there mentioned
did not include the Government and therefore the intention
is clear that applications for permits by the Government
were not intended to be considered under s. 47 and if
Government could not come under s 47, it could not come
under Chapter IV at all. But assume that representations by
the Government are not contemplated by s. 47. That does not
show that applications for permits by the Government are
also not contemplated by that section.
It is also said that the matters to which the authority
granting the permits is required to have regard in
187
considering applications for permits under s. 47 are such
that if the State enters into competition with citizens for
the grant of permits the State must necessarily get them.
Therefore, it is said that it could not have been intended
that the State would compete with the citizens in the matter
of obtaining permits under Chapter IV. We are unable to
assent to this contention. There is nothing in s. 47 which
leads to the conclusion that whenever the Government applies
along with private citizens for permits, the Government must
get them. Indeed, if that were so, then it would not have
been necessary to provide by s. 68F (1) that when the
Government, that is, its State transport undertaking,
applied in pursuance of an approved scheme for a permit, the
authority concerned would be bound to grant such permit.
Section 68F (1) clearly contemplates that without the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
provision made therein it may so happen that the authority
acting under s. 47 may think it fit to grant the permit to a
private operator in preference to the Government. It also
seems to us that there is nothing in our law to prevent the
Government from entering a business in competition with
private citizens. Indeed, Art. 19(6) by providing that
nothing in art. 19(1)(g) shall affect the application of any
existing law in so far as it relates to, or prevent the
State from making any law relating to the carrying on by the
State of any trade, business, industry or service whether to
the exclusion, complete or partial, of citizens or
otherwise, would seem to indicate that the State may carry
on any business either as a monopoly, complete or partial,
or in competition with any citizen and that would not have
the effect of infringing any fundamental rights of such
citizen.
Our attention was then drawn to the proviso to s. 47(1)
under which other thing,; being equal a cooperative society
is entitled to preference over individual owners in the
matter of grants of permits. It is said that the Government
is not an individual owner and therefore it is not
contemplated as an applicant for a permit under s. 47. It
seems to us that if the Government is not an individual
owner-as to which we are not called upon to say anything-it
does not
188
follow that section does not contemplate the Government as
an applicant for permit. If Government is not an individual
owner: then all that will happen in view of the proviso to
s. 47(1) will be that a co-operative society will not be
able to claim any preference over the Government. All that
the proviso does is to give a co-operative society a
preference over individual owners. It is not concerned with
stating who can apply for permits.
It seems to us therefore that the petitioner’s contention
that the Government cannot apply for a permit under Chapter
IV of the Act is unsustainable. The petitioner cannot
complain of the Government having applied under that
Chapter. We are not called upon, therefore, to discuss the
further question, whether any fundamental right of the
petitioner under art. 19(1)(g) would have been affected by
the Government having applied for and obtained permits under
Chapter IV without having the right to do so. This disposes
of the contentions concerning the infringement of the peti-
tioner’s fundamental rights under art. 19(1)(g) of the
Constitution.
We will now consider the question of the violation of art.
14 of the Constitution. The first contention in this regard
was based on the proviso to s. 47(1). It is said that in
the circumstances of this case, as a cooperative society the
petitioner was entitled to preference over the Government,
considered as an individual owner, and had not been given
that preference. It is contended that respondent No. 1
relying on various promises made by the State of Bombay to
repair roads and to give other facilities to the traveling
public had held that the other conditions were not equal
while under the proviso, it was entitled to rely only on the
existing conditions. It is contended that thereby the
provisions of Art. 14 had been infringed. This contention
is in our view clearly untenable. The decision of
respondent No. 1 may have been right or wrong and as to that
we say nothing, but we are unable to see that decision
offends Art. 14 or any other fundamental right of the
petitioner. The respondent No. 1 was acting as a quasi
judicial body and if it has made any mistake in its decision
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
there are appropriate
189
remedies available to the petitioner for obtaining relief.
It cannot complain of a breach of Art 14.
The other contention of the petitioner is that if Chapter IV
permits the State to compete with a private citizen, it
offends Art. 14 because in view of the vast resources of the
State a private citizen is bound to lose in such
competition. This point is clearly unfounded. Article
19(6) as it now stands, contemplates such a competition as
we have earlier pointed out. The petitioner can base no
grievance on such competition.
For these reasons we think that this petition must fail and
hence it is dismissed with costs.
Petition dismissed.