The Parbhani Transport Co-Operative
Society Ltd. Vs. The Regional Transport Authority, Aurangabad & Ors  INSC
36 (7 March 1960)
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER
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)
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.
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)  26 I.T.R. 351. (2)  28 I.T.R.
(3)  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 Ch. IVA of the Act, the
State had no right to apply for permits except there under 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,
Nor could the maxim expression 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 Government
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,
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
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
19(6) of the Constitution, to offend that
Article by permitting open competition between the State and a private citizen.
ORIGINAL JURISDICTION: Petition No. 110 of
Writ Petition under Article 32 of the
Constitution of India for enforcement of Fundamental rights.
B.R. L. Iyengar and Shankar Anand, for the
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
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 Transport
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, 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
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
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 published 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 contention 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.
(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 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)  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 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 play 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 undertaking 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
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
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 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 petitioner'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 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.