05 February 1970
Supreme Court


Bench: HEGDE,K.S.
Case number: Appeal Civil 397 of 1969






DATE OF JUDGMENT: 05/02/1970


CITATION:  1970 AIR 1102            1970 SCR  (3) 505  1970 SCC  (1) 404  CITATOR INFO :  RF         1971 SC1002  (5)  E          1973 SC 974  (2)  RF         1973 SC1461  (223)  R          1974 SC2192  (33,34,47,131)  R          1978 SC  68  (133,146,173,211)  RF         1982 SC 149  (709)  RF         1987 SC2106  (6)

ACT: Motor  Vehicles Act 4 of 1939, s. 68(c)-Validity  of  scheme framed upon formation of requisite opinion by Secretary  and not Minister.  Rule 23-A authorising Secretary-Validity  of- Constitution of India, Art. 166(3)-Scope of.

HEADNOTE: A draft scheme for the nationalisation of certain  transport routes  was prepared and published by the  respondent  State Government  under Section 68(C) of the Motor Vehicles Act  4 of  1939.  The validity of the scheme was challenged by  the appellants, who were private stage carriage operators, in  a petition under Article 226 of the Constitution but the peti- tion was dismissed by the High Court. In  appeal  to  this Court the validity of  the  scheme  was mainly  challenged on the ground that the opinion  requisite under  Section 68(C) was not formed by the State  Government but  by the Secretary to the Government acting  pursuant  to powers  conferred  on  him under Rule  23-A  of  the  Madras Government Business Rule.  It was further contended that the said   rule   was  ultra  vires,  the  provisions   of   the Constitution; Parliament has conferred powers under Section, 68-C  to  a  designated  authority and  that  power  can  be exercised  only by the authority specified and no one  else. The  authority concerned in the present case was  the  State Government  and  it could not have  delegated  is  statutory ’functions  to  any one else.  By Government was  meant  the Governor aided and advised by his Ministers.  The  requisite opinion should therefore have been formed by the Minister to



whom the business had been allocated under the Rules. HELD  : The functions under the Motor Vehicles Act had  been allocated  by the Governor to the Transport  Minister  under the  Rules  and  the Secretary of  that  Ministry  had  been validly  authorised under Rule 23-A to take action under  s. 68(C) of the Act. In  the  very  nature  of things,  neither  the  Council  of Ministers  nor  an  individual Minister can  attend  to  the numerous matters that come up before the Government.   Those matters  have  to  be attended to  and  decisions  taken  by various  officials at various levels.  When those  officials discharge the functions allotted to them, they are doing  so as  limbs of the Government and not as persons to  whom  the power of the Government had been delegated. [513 G] Under  our  Constitution,  the  Governor  is  essentially  a constitutional head; the administration of the State is  run by  the  Council  of  Ministers. in  order  to  obviate  the difficulty that would arise if the Council of Ministers  had to  deal with every matter, the Constitution has  authorised the  Governor  under sub-article (3) of the Article  166  to make  rules  for  the more  convenient  transaction  of  the business  of  the  Government  of  the  State  and  for  the allocation   amongst  its  Ministers  of  the  business   of Government.   All  matters  excepting  those  in  which  the Governor  is  required to act in his discretion have  to  be allocated to one or the other of the Ministers on 506 the  advice  of the Chief Minister.  Apart  from  allocating business  among  the Ministers, the Governor can  also  make rules  on  the advice of his Council of Ministers  for  more convenient  transaction  of  business.   He  can  not   only allocate the various subjects amongst the Ministers but  may go  further and on the advice of his Ministers, designate  a particular  official to discharge any  particular  function. [511 F] The  cabinet  is responsible to the  Legislature  for  every action taken in any of the Ministries.  This is the  essence of  joint responsibility.  That does not mean that each  and every decision must be taken by the cabinet.  The  political responsibility  of  the Council of Ministers  does  not  and cannot   predicate  the  personal  responsibility   of   the Ministers  to discharge all or any of -the functions of  the Government.  Similarly an individual Minister is responsible to, the Legislature, for every action taken or omitted to be taken   in  his  ministry.   This  again  is   a   political responsibility  and not personal responsibility.   In  every well-planned administration, most of the decisions are taken by  the civil servants who are likely to be experts and  not subject to political pressure.  The Minister is not expected to  burden himself with the day-to-day administration.   His primary function is to lay down the policies and  programmes of  his ministry while the Council of Ministers  settle  the major policies and programmes of the, Government. [512 A] Emperor  v.  Sibnath Banerjee & Ors.  L.R. 72 I.A.  p.  241; Kalyan  Singh  v. State of U.P. [1962] Supp.  2  S.C.R.  76; Ishwarlal  Girdharlal  Joshi v. State of Gujarat  and  anr., [1968]  2  S.C.R.  266,  Capital  Multipurpose   Cooperative Society  v. State of Madhya Pradesh and Ors.   Civil  Appeal No. 2201/1966 decided on 30-3-1967; referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 397, 400 to 402, 404 to 417, 422 to 4.41, 451, 1158 to 1161, 1176,  1178



to 1181, 1204, 1207 and 1407 of 1969. Appeals from the judgments and orders dated January 6,  1969 of the Madras High Court in Writ petitions Nos. 846 of  1968 etc. K.   K. Venugopal, K. R. Nambiar and A. S. Nambiar, for  the appellants  (in C.As. Nos, 397, 400 to 402, 422,,  423,  441 and 451 of 1969). M.   C. Chagla, V. Subramaniam, V. T. Gopalan, Radharani, C.   S.  Prakasa Rao and K. Jayaram, for the appellant  I  s (in.  C.As. Nos. 404 to 417, 1179, 1180 of 1407 of 1969). M.   K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the appellant (in C.A. No. 1176 of 1969). R.   V.  S. Mani, for the appellants (in C.As. Nos.  424  to 428, 1158 to 1161 and 1207 of 1969). A.   K.  Sen, C. A. Prakasa Rao and R.  Gopalakrishnan,  for the  appellants  (in C.As. Nos. 429, 431 to 438,  440,  441, 1178 and 1181 of 1969). C.   S. Prakasa Rao, A. R. Ramanathan and R. Gopalakrishnan, for the appellant (in C.A. No. 430 of 1969). 507 C.   S.  Prakasa Rao, R. Gopalakrishnan and  Sudhir  Khanna, for the appellant (in C.A. No. 439 of 1969). C.   S. Prakasa Rao, K. K. Venugopal and R.  Gopalakrishnan, for the appellant (in C.A. No. 1204 of 1969). Niren  De, Attorney General for India and A. V. Rangam,  for the respondents (in C . A. No. 397 of 1969). S.   V. Gupte and A. V. Rangam, for the respondents (in C.A. No. 400 of 1969). A.   V. Rangam, for the respondents (in C.A. Nos. 401,  402, 404  to  417, 422 to 441, 451, 1158 to 1161, 1176,  1178  to 1181, 1204, 1207 and 1407 of 1969). The Judgment of the Court was delivered by Hegde,  J.  These 52 appellants are private  stage  carriage operators  in  the  State of Tamil  Nadu.   They  have  been operating  in various routes in that State.  Some  of  those routes  are proposed to be rationalised.  A draft scheme  of nationalisation has been prepared and published under s.  68 (C)  of the Motor Vehicles Act (Central Act IV of 1939)  (to be  hereinafter referred to as ’the Act’).  The validity  of the  -draft scheme was challenged by the  appellants  before the High Court of Madras under Art. 226 of the Constitution. Incidentally  the validity of some of the provisions of  the amending  Act  XVIII of 1968 (Madras Act) also  came  to  be challenged  in  those petitions.  A division  bench  of  the Madras  High  Court consisting of Anantanarayanan  C.J.  and Natesan  J. have dismissed those petitions.  As against  the decision  of the High Court these appeals have been  brought on  the  strength  of the certificates  issued-by  the  High Court. In  these  appeals  we  are  primarily  concerned  with  the validity of the draft scheme under challenge.  The ground on which  it is challenged is that the opinion requisite  Under s. 68 (C) of the Act was not formed by the State  Government but  by the Secretary to the government in  the  Industries, Labour  and Housing Department, acting in pursuance  of  the powers  conferred  on  him under rule 23(A)  of  the  Madras Government  Business Rules (to be, here inafter referred  to as  ’the Rules’).  The contention of the appellants is  that the  said rule is ultra vires the provisions of the  Consti- tution.  There is no dispute that if the rule in question is valid,  the challenge directed against the &aft scheme  must fail.   The High Court has opined that that rule is a  valid rule.   It  is the correctness of that  conclusion  that  is primarily in issue in these, appeals. 508



Section 68(C) prescribes : "Where  any State transport undertaking is of  opinion  that for  the  purpose  of  providing  an  efficient,   adequate, 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  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." This  section requires that the State transport  undertaking must form the opinion contemplated therein.  In the State of Tamil Nadu, the State transport undertaking is a  department of  the State government.  Therefore the  necessary  opinion should  have  been formed by the State government.   It  was urged   on   behalf  of  the  appellants  that   under   our constitutional set up, the requisite opinion could have been formed either by the Council of Ministers or the Minister to whom  the business in question had been allocated under  the ’Rules’.   The  same  could  not have  been  formed  by  the ’Secretary  who  is merely an official and that too  by  the Secretary who is not the head of the department to which the functions under the Act had been assigned.  The  contentions advanced  on  behalf of the appellants proceed  thus  :  The executive  power  of the State vests in the  Governor  (Art. 154).  In the exercise of that power he has to be aided  and advised by the Council of Ministers with the Chief  Minister at  the head (Art. 163(1)) but the Governor can  make  rules for  more  convenient  transaction of the  business  of  the government  of  the  State  and  for  the  allocation  among Ministers  of  the  said business in so far  as  it  is  not business  with respect to which the Governor is by or  under the  Constitution required to act in his  discretion,  (Art. 166(3)).   A Minister can only deal with the  business  that has been allocated to him by the Governor under ’the Rules’. He is not competent to deal with any other business.   Motor Vehicles Act has been allocated to the Home Department.  Mr. Karunanidhi, the Transport Minister was not in-charge of the Home  Department.  Therefore his department could  not  have dealt  with  functions arising under the Act.   Further  the Governor  could  not  have  allocated  any  business  to   a Secretary.   Hence  in  making  rule  23(A),  the   Governor exceeded the powers -conferred on him under Art. 166(3). 509 On  the other hand, it was urged on behalf of the  State  of Tamil  Nadu  that originally the functions under  the  Motor Vehicles  Act had been allocated to the Home Department  but when  Mr.  Annadurai formed the D.M.K. government  in  Tamil Nadu in 1967, the Home Department as such was not  allocated to  any  Minister.  The various subjects  included  in  that department were split up and distributed amongst the various Ministers.   Transport  was allocated  to  Mr.  Karunanidhi. Motor  Vehicles  Act  as  such  was  not  allocated  to  any Minister.   The department of Transport  included  functions under the Motor Vehicles Act as well.  Ever since the D.M.K. ministry was formed, the functions under the Motor  Vehicles Act  were  dealt  with by the Transport  ministry.   At  the instance   of  the  Transport  Minister,  Mr.   Karunanidhi, Governor framed rule 23(A) for the more convenient discharge



of  the  business.   On behalf of  the  government,  it  was further  urged  that Art. 166(3) has two, parts  namely  (1) rules for the more convenient transaction of the business of the  government  of  the State and  (2)  rules  relating  to allocation of business of the State among the Ministers.  It was   said  that  after  allocating  the  business  of   the government  among  ’various Ministers, it was  open  to  the Governor on the advice of the ministry to make rules for the convenient discharge of the business allocated.  Rule  23(A) is one such rule made under Art. 166(3).  Hence its validity is not open to question. The impugned rule 23(A) was introduced for the first time by G.O.Ms.  No. 2715 Public dated 22-12-67.  Under sub-cl.  (1) of that rule, it is provided that powers and functions which State  transport undertaking may exercise under s. 68(C)  of the  Act shall be exercised and discharged on behalf of  the State  government  by  the Secretary to  the  Government  of Madras  in the Industries.  Labour -and Housing  Department. The rule further provides that cases relating to such powers and  functions of the State transport undertaking  under  s. 68(C)  need  not  be submitted to  the  Minister  in-charge. Under sub-cl. (2) of that rule, the powers and functions  of the State government under s. 68(D) of the Act and the rules relating thereto are directed to be exercised and discharged by the Secretary to the government in the Home Department. Rule 4 of ’the Rules’ deals with allocation and disposal  of business.  It provides. that the business of the  Government shall  be transacted in the department specified in the  1st Sch.   and   classified  and   distributed   between   those departments as laid down therein.  Rule 5 says that Governor shall,  on  the  advice  of the  Chief  Minister  allot  the business  of the government among the  Ministers,  assigning one or more departments to the charge of a Minister but  the proviso  to that rule says that nothing in that  rule  shall prevent  the  assigning of one department to the  charge  of more than one Minister. 510 Rule  6 prescribes that each department of  the  secretariat shall be under a Secretary who shall be the official head of the  department.   Under rule 7, the  Council  of  Ministers constituted   under   Art  163(1)   is   held   collectively responsible for all the executive orders issued in the  name of  the-Governor  in  accordance with  rules,  whether  such orders are authorised, by an individual Minister on a matter pertaining to his portfolio or as a result of the discussion at the meeting of the Council of Ministers.  Rule 9 provides that  without  prejudice to the provisions of rule  7,  the- Minister  in-charge  of  a  department  shall  be  primarily responsible  for the disposal of the business pertaining  to his department.  Section III of the "Rules" containing rules 21  to 30 deal with the departmental disposal  of  business. Rule 21 says that except as otherwise provided by any  other rule  cases shall ordinarily be disposed of by or under  the authority  of  the Minister in-charge who may  by  means  of standing orders give such directions as he may think fit for the  disposal  of cases in the department;  copies  of  such standing orders shall be sent to the Governor -and the Chief Minister.   Rule 22 provides that each - Minister  shall  by means  of standing orders arrange with the secretary of  the department  what  matters  or class of  matters  are  to  be brought  to  his personal notice; copies  of  such  standing orders  has  to  be  sent to  the  Governor  and  the  Chief Minister.   Rule  23  prescribes that  except  as  otherwise provided  in the rules, all cases shall be submitted to  the Minister  in-charge  by the secretary of the  department  to



which they belong.  Then comes rule 23(A) to which reference has already been made. The  first  question that has to be decided is  whether  the functions under the Motor Vehicles Act had been assigned  to Mr.  Karunanidhi,  the Minister for Transport.  It  is  true that when the various departments were reorganized in  1961, Motor Vehicles Act as well as Transport were included in the Home Department.  But when the D.M.K. ministry came to power after  the  1967 general elections, the Home  Department  as such  was  not  allocated  to  any  Minister.   The  various subjects  included  in  that  department  were   distributed amongst  several Ministers.  Transport was allocated to  the Transport  Minister.   Motor Vehicles Act as  such  was  not allocated to any Minister.  The allocation of business among the various Ministers appears to have been made under  broad heads.   In  1961 while allocating subjects to  the  various departments there was a detailed and exhaustive  enumeration of  the subjects.  But that method was not adopted  in  1967 while distributing the business of the government among  the various Ministers.  The functions under the Act  undoubtedly relate  to Transport department.  It cannot be assumed  that functions  under  the  Act  had not  been  assigned  to  any Minister.   It  is proved that those  functions  were  being discharged  by the Minister for Transport.  ’Hence we  agree with the High Court that those functions had been 511 allocated  to  the  Transport Minister and  that  the  State transport  undertaking  was  being  run  by  the   Transport ministry. Mr.  Karunanidhi has in his affidavit filed before the  High Court  sworn to the fact that rule 23(A) was framed  at  his instance.   Admittedly he could have assigned the  functions under  s.  68(C) of the Act to the  Transport  Secretary  by making  a  standing order under rule 22.  If he  could  have done  that,  we  fail to see why he  could  not  advise  the Governor through the Chief Minister to make rule 23 (A). It was urged on behalf of the appellants that the parliament has  conferred  powers  under  s. 68(C)  of  the  Act  to  a designated  authority.  That power can be exercised only  by that authority and by no one, else.  The authority concerned in the present case is the State government.  The government could not have delegated its statutory functions to any  one else.   The government means the Governor aided and  advised by  his  Ministers.  Therefore the required  opinion  should have  been formed by the Minister to whom the  business  had been allocated by ’the Rules’.  It was further urged that if the functions of the Government can be discharged by any one else, then the doctrine of ministerial responsibility  which is  the  very  essence of the  cabinet  form  of  government disappears;  such  a situation is  impermissible  under  our Constitution. We  think that the above submissions advanced on  behalf  of the  appellants  are  without  force  and  are  based  on  a misconception of the principles underlying our Constitution. Under  our  Constitution,  the  Governor  is  essentially  a constitutional  head; the administration of State is run  by the Council of Ministers.  But in the very nature of things, it  is impossible for the Council of Ministers to deal  with each and every matter that comes before the Government.   In order  to  obviate  that  difficulty  the  Constitution  has authorised  the Governor under sub-Art. (3) of Art.  166  to make rules. for the more convenient transaction of  business of  the  government  of the State  and  for  the  allocation amongst its Ministers, the business of the government.   All matters excepting those in which Governor is required to act



in  his discretion have to be allocated to one or the  other of the Ministers on the advice of the Chief Minister.  Apart from  allocating business among the Ministers, the  Governor can  also  make  rules  on the  advice  of  his  Council  of Ministers  for more convenient transaction of business.   He can,  not  only allocate the various  subjects  amongst  the Ministers  but  may go further and  designate  a  particular official  to  discharge any particular function.   But  this again  he  can  do  only on the advice  of  the  Council  of Ministers. 512 The cabinet is responsible, to the legislature for every act ion taken in any of the ministries.  That is the essence  of joint  responsibility.   That does not mean  that  each  and every decision must be taken by the cabinet.  The  political responsibility  of  the Council of Ministers  does  not  and cannot   predicate  the  personal  responsibility   of   the Ministers  to  discharge  all or  any  of  the  governmental functions.  Similarly an individual Minister is  responsible to  the legislature for every action taken or omitted to  be taken   in  his  ministry.   This  again  is   a   political responsibility  and not personal responsibility.   Even  the most  hard working minister cannot attend to every  business in his department.  If he attempts to do it, he is bound  to make  a  mess  of his department.   In  every  well  planned administration, most of the decisions are taken by the civil servants  who  are likely to be experts and not  subject  to political pressure.  The Minister is not expected to  burden himself  with  the day to day administration.   His  primary function is to. lay down the policies and programmes of  his ministry  while  the Council of Ministers settle  the  major policies  and programmes of the ’government.  When  a  civil servant takes a decision, he does not do it as a delegate of his Minister.  He does it -on behalf of the government.   It is  always  open to a Minister to call for any file  in  his ministry  and pass orders.  He may also issue directions  to the  officers  in  his ministry regarding  the  disposal  of government  business  generally or as regards  any  specific case.   Subject  to  that  over  all  power,  the   officers designated  by the ’Rules’ or the standing orders, can  take decisions  on behalf of the government.  These officers  are the limbs of the government and not its delegates. In Emperor v. Sibnath Banerji and ors. (1) construing s. 5 9 (3)  of  the  Government of India  Act,  1935,  a  provision similar to Art. 166(3), the Judicial Committee held that  it was within the competence of the Governor to empower a civil servant   to  transact  any  particular  business   of   the government by making appropriate rules.  In that case  their Lordships  further observed_ that the Ministers  like  civil servants are subordinates to the Governor.  In Kalyan  Singh v.  State of U.P.(2) : this Court repelling  the  contention that  the  opinion formed by an official of  the  government does not -fulfil the requirements of s. 68 (C) observed : "The opinion must necessarily be formed by somebody to whom, under the rules of business, the conduct of the business  is entrusted  and that opinion, in law, will be the opinion  of the State Government.  It is stated in the counter-affidavit that  all  the  concerned officials  in  the  Department  of Transport  considered the draft scheme and the  said  scheme was  finally  approved  by the Secretary  of  the  Transport Department before the (1) L. R. 72 T. A. p. 241. (2) [1962] Sup. (2) S. C. R. p .76.               513 notification  was issued.  It is not denied that the  Secre-



tary  of  the said Department has power under the  rules  of business  to  act for the State Government in  that  behalf. We, therefore, hold that in the present case the opinion was formed by the State transport undertaking within the meaning of s. 68 (C) of the Act, and that, there was nothing illegal in the manner of initiation of the said Scheme". In Ishwarlal Girdharlal Joshi etc. v. State of Gujarat and anr.   (  3 )  this Court rejected_the contention  that  the opinion formed by the Deputy Secretary under s. 17(1) of the Land Acquisition Act cannot be considered as the opinion  of the  State  government.   After referring to  the  rules  of business  regulating  the government  business,  this  Court observed at p. 282 "In  our  case  the Secretaries  concerned  were  given  the jurisdiction  to  take action on behalf  of  Government  and satisfy  themselves about the need for acquisition under  s. 6, the urgency of the matter and the existence of waste  and arable  lands for the application of sub-ss. (1) and (4)  of s.   17.   In  view  of  the  Rules  of  business  and   the Instructions their determination became the determination of Government and no exception could be taken." In  Capital Multi-purpose Co-operative Society v.  State  of Madhya  Pradesh  and Ors. (1), this Court dealing  with  the scope  of  s.  68 (D) of the Act  observed  that  the  State Government  obviously is not a natural person and  therefore some  natural  person has to give hearing on behalf  of  the State Government and hence the hearing given by the  special secretary  pursuant  to the power conferred on  him  by  the business rules framed under Art. 166(3) is a valid hearing. As  mentioned earlier in the very nature of things,  neither the  Council  of Ministers nor an  individual  Minister  can attend  to  the  numerous matters that come  up  before  the Government.   Those  matters  have to  be  attended  to  and decisions  taken  by various officials  at  various  levels. When  those  officials discharge the functions  allotted  to them,  they are doing so as limbs of the government and  not as  persons  to whom the power of the  government  had  been delegated.  In Halsbury Laws of England Vol.  I 3rd Edn.  at p. 170, it is observed : "Where functions entrusted to a Minister are performed by an official employed-in the Minister’s department (1)  [1968] 2, S. C R. p. 266. (2)  C. A. 2201 of 1966 decided on 30.3.1967. L8Sup CI/70-3 514 there  is in law no delegation because constitutionally  the act or decision of the official is that of the Minister." Similar   view   has  been  expressed  in   "Principles   of Administrative  Law" by Griffith and Street.  That  is  also the  view  taken  by  Sir  Ivor  Jennings  in  his  "Cabinet Government". For the reasons mentioned above, we are of opinion that  the functions under the Motor Vehicles Act had been allocated by the Governor to the Transport Minister under "the Rules" and the  Secretary of that ministry had been validly  authorised under rule 23-A to take action under S. 68 (C) of the Act. The  validity of some of the provisions of Madras Act 18  of 1968 which amended the Act was canvassed before us,.  It  is not  necessary to go into those questions for  deciding  the validity  of  the impugned scheme.  Those questions  can  be more appropriately gone into and decided if ’and when action is  taken  on the strength of those  provisions.   Hence  we leave open those questions. In the result these appeals fail and they are dismissed with costs-hearing fee one set.



R.K.P.S.                                             Appeals dismissed. 515