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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

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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

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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,

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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

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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

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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

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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

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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

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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.