Kumaon Motor Union Owners Ltd. & ANR
Vs. The State of Uttar Pradesh [1965] INSC 208 (8 October 1965)
08/10/1965 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
CITATION: 1966 AIR 785 1966 SCR (2) 121
CITATOR INFO:
D 1967 SC1766 (24) R 1979 SC1271 (7) R 1991
SC 855 (58)
ACT:
Defence of India Rules, 1962 r. 131(2) (gg)
and (i)-Powers under Defence of India Act 1962 s. 43. If prevails over s. 68 B
of Motor Vehicles Act read with s. 6(4) of Defence of India Act-If order passed
mala fide to avoid payment of compensation.
Motor Vehicles Act, 1939 s. 68B--Ch. IV A.
HEADNOTE:
The respondent-State issued a notification
under r.
131(2)(gg) and (i) of the Defence of India
Rules,, 1962 directing to stop plying of all vehicles belonging to the members
of the appellant-union on a route in the border region of the Country. The
appellants filed writ petitions in the High Court which were dismissed. In
appeal to this Court it was contended. that (i)the order was beyond the power
of the State under r. 131. (2) (gg) and (i) of the Defence of India Rules; (ii)
on a combined reading of s. 6(4) of the Defence of India Act and S. 68B of the Motor
Vehicles Act, the provisions of Ch. IV-A of the Motor Vehicles Act with regard
to the framing of schemes and payment of compensation must be complied within
where action is taken under r. 131(2) (gg). and (i) of the Defence of India
Rules, and the act was mala fide; (iii) S. 44 of the Defence of India Act had
been contravened by the order; and (iv) the satisfaction necessary for passing
the order under the Act and the Rules had not been shown by affidavits filed on
behalf of the State and therefore the condition precedent to the passing of
such an order was absent.
HELD: (i) The order passed by the State
Government was clearly within its powers under r. 131(2)(gg) and (i) of the
Defence of India Rules. [130 H] When cl. (gg) envisaged prohibition or
restriction of carriage of persons or goods by any vehicle or class of
vehicles, it meant that the order would apply to persons plying such vehicles.
[127 A] The impugned order was good so long it came within r.
131(2)(gg) even though it may diminish the
profit making capacity of a commercial undertaking or even reduce it to nothing
in a particular line of business. [130 B-C] Clause (i) of r. 131(2) was
complementary to the other clauses of r. 131(2). When the State decided to
issue a prohibition under cl. (gg) it must naturally provide for alternative
methods for the carriage of persons or goods on the prohibited route and cl.
(i) clearly makes provision for this. [130 D-E] (ii) Section 43 of the Defence
of India Act must prevail in the conflict which appears to be apparent between
S. 43 on one hand and S. 68B of the Motor Vehicles Act read with S. 6(4) of the
Defence of India Act on the other. S. 43 appears in an Act which is later than Motor
Vehicles Act, and in such a Situation unless there is anything repugnant, the
provisions in the later Act must prevail; looking at the object behind the two
statutes, the Act which was passed to meet an emergency arising out 122 of
foreign invasion of the country must prevail over an Act meant to meet a
situation arising out of the taking over of motor transport by the state; and
s. 43 emphatically says that the Defence of India Act will prevail over any
other enactment and this suggests that the legislature intended that the
emergency legislation in the Defence of India Act will be paramount if there is
any inconsistency between it and any other provision of any other law
whatsoever. [128 AG] The argument that the entire Motor Vehicles Act must be
read as a part of the Defence of India Act must be rejected and in consequence
s. 43 of the Defence of India Act will have over-riding effect. The words
"shall have effect" in s. 6(4) of the Defence of India Act, have to
be read in the context of that subsection and in that context means that the Motor
Vehicles Act will continue as before subject to amendments made by s. 6(4).
[129 B-E] There was no question of the order being mala fide or been passed as
a device to avoid payment of compensation under Ch. IVA. "The fact that at
one stage nationalisation and consequent payment of compensation under Ch. IV-A
was under consideration does not mean that if eventually action was taken under
s. 131(2) (gg) to stop activities prejudicial to the defence of the country
such action wag mala fide or was merely a device to avoid payment of
compensation. The long period of almost four years which was taken, in coming
to a decision shows the circumspection with which the State acted when it
finally decided to pass an order under r.
131(2)(gg), 1131 E-G] (iii) Action taken was
not more than the situation demanded and it did not violate s. 44 of the
Defence of India Act. It is for the person, who contends that an order
contravenes s. 44, to show that anything less than what the order provides
would have met the needs of the situation.
[132 C] (iv) In view of the affidavit filed
in this court on behalf of the State, there could be no doubt that necessary
satisfaction of the State Government which is a condition precedent for the
issue of an order under the rules was there before the impugned order was
issued. [133 B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 486 and 487 of 1965.
Appeals from the judgments dated the March
12, 1965 of the Allahabad High Court in Civil Misc. Writ Nos. 4308 of 1965 and
4309 of 1965.
G. S. Pathak, B. Dutta, J. B. Dadachanji, O.
C. Mathur and Ravinder Narain for the appellant.
K. L. Misra, Advocate-General for the State
of Uttar Pradesh and O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Wanchoo J. These two appeals on certificates granted by the Allahabad High
Court raise common questions and will be dealt with together. The appellant,
Kumaon Motorowners' Union Limited (hereinafter referred to as the union) was
established in 1939 and had at the date of the writ petition's. 330 members all
of 123 whom owned transport vehicles. These members have public carrier permits
as well as stage carriage permits, which are in force in the Kumaon region
except on certain notified routes. The permits of the various members of the
union are valid upto various dates falling in the years 1966 and 1967.
On August 17, 1964, the State Government
purporting to exercise powers under cls. (gg) and (i)_ of sub-rule (2) of r.
131 of the Defence of India Rules, 1962 (hereinafter
referred to as the Rules) issued a notification by which it was directed that
with effect from October 1, 1964, "no private operators shall ply any
vehicle, or class of vehicles for the carriage of persons or goods on, and no
vehicle or class of vehicles operated by the private operators shall pass
through, Tanakpur-Dharchula route of Kumaon region". It was further
directed in the notification that on this route, the U.P. Government Roadways
vehicles alone shall ply for the carriage persons and goods. This result of
this notification was to stop plying of all vehicles belonging to the members
of the union on, the route in question and this led to the filing of the two
petitions in the High Court. The union was party to both the petitions, which were
in the same terms.
In the petitions the appellants challenged
the notification of' August 17, 1964, and this challenge was based on four
grounds. In the first place, it was contended that no order of the kind passed
on August 17, 1964 could be passed under r. 131 (2) (gg) and (i). In the second
place, it was contended that the U.P. Government was contemplating
nationalisation of this route in the Kumaon region for a long time prior to
August 1964. Eventually, however, instead of proceeding with the scheme of
nationalisation which would have necessitated payment of compensation to
operators plying in the region, the Government decided to circumvent the
provisions of Ch. IV-A of the Motor Vehicles Act, (No. 4 of 1939) and
introduced nationalisation through the device of an order under cls.(gg) and
(i) of r. 131 (2) of the Rules. So it 131 (2) of the Rules. So it was conceded
that the action of the State Government in passing the challenged order was
mala fide. Thirdly, it was contended that s. 44 of the Defence of India Act,
No. 51 of 1962, (hereinafter referred to as the Act) had been contravened by
the order. Lastly, the contention -was that the satisfaction necessary for
passing the order under the Act and the Rules had not been shown by the
affidavits filed on behalf of the State Government and therefore the condition
precedent to the passing of such an order was absent.
The petitions were opposed on behalf of the
State Government. It was not disputed that at one time prior to August 1964 the
State Sup C1166-9 124 Government had thought of nationalizing this route and
this matter was under consideration for some time since 1962. But the State
Government justified the passing of the impugned order on the ground that since
1960 reports had started coming in from the State Intelligence Department that
certain anti-national and subversive elements were infiltrating the transport
Organisation and were exercising influence over the drivers, employees and
other private operators of the union. As far back as October 1960, the Deputy
Commissioner, Almora had sent a report to Government that it was necessary in
the interest of national security that, no new routes in Pithoragarh should be
given for operation to the union and that their operation should be limited to
Almora proper. Thereupon in a meeting of high officials on November 14, 1960,
it was decided that the Deputy Inspector General Intelligence, should supply
the Transport Commissioner with a list of the ring leaders of such
anti-national elements, and the Transport Commissioner should make efforts for
the elimination of such elements from the transport Organisation. It was also
decided that the management of the union should be asked to screen their
employees before they were employed and the police would be ready to render
assistance in the matter of verification of antecedents of persons to be
employed by the union.
Finally, it was also decided that the
Transport Commissioner should consider the question of running buses
exclusively owned by Government on the border routes.
Further meetings were held in January and
August 1961 in which it was pointed out that it was difficult to eliminate
undesirable elements from transport organizations on account of existing labour
laws. In the meantime, more reports had come in of undesirable activities by
workers of transport organizations in the border region. Therefore, in May
1962, it was tentatively decided by the State Government that the real solution
to the problem lay in the operation of transport in the border areas by
Government alone. In the meantime the Transport Commissioner informed the
Government that as the union was a private concern, the transport department
could do nothing itself to eliminate these antinational elements from the union
and that the management of the union also appeared to be powerless in the
matter.
Consequently in October 1962, the transport
department was asked to consider the question of nationalisation of some of the
border routes from the point of view of security.
This was the, situation when the Chinese
attacked in October 1962. In November 1962, an employee of the union had to be
detained under r. 30 (1) (b) of the Rules as his activities were 125 considered
prejudicial to the defence of India and public safety. The matter remained
under consideration for another year and in, October 1963 it was again
impressed on the Transport Commissioner to eliminate anti-national elements
from the transport organisations, including the union serving in the border
areas. The Transport Commissioner however expressed his inability to do so and
was then asked to examine the implication of nationalisation of border routes
on the ground of security. In January 1964 it appears that the transport
department reported that nationalisation would not be economical and that the
Government would stand to lose if it eliminated all private operators from this
route and substituted government owned vehicles in their place. Even so, it was
finally decided in August 1964 after the matter was put up before the Chief
Minister who dealt with matters arising out of the Act and the Rules that in
the interest of security, this route should be taken away from private
operators like the union and that the transport department should run its own
vehicles on it. It was in consequence of this decision of the Chief Minister
finally made in July 1964 that the impugned notification was issued on August
17, 1964.
On these averments, it was contended on
behalf of the State Government in the High Court that there was no mala fides
in eliminating operators from this route and entrusting it to the transport
department. It was further contended that there was no contravention of s. 44
of the Act. Further it was urged that the order in question was justified
within the terms of r. 131 (2) (gg) and (i) of the Rules. Lastly it was
contended that the order had been passed after the necessary satisfaction of
the Chief Minister.
The High Court negatived all the contentions
raised on behalf of the appellants. As to the satisfaction of the Chief
Minister before the issue of the impugned order, the High Court was of the view
that the affidavit filed on behalf of the State Government was not very
satisfactory;
but on the whole it came to the conclusion
that the order had been issued after the necessary satisfaction and
consequently the petitions were dismissed. The appellants then obtained
certificates from the High Court; and that is how the matter has come up before
us.
The same four points which were raised before
the High Court have been raised before us on behalf of the appellants. We shall
first consider the contention that the impugned order is beyond the power of
the State Government under r.
131(2)(gg) and (i). Rule 131 provides for
control of road and water transport. Sub126 rule (2) thereof with which we are
particularly concerned reads thus :
" (2) Without prejudice to any other
provision of these Rules, the Central Government or the State Government may by
general or special order(a) to (g) "(gg) provide for prohibiting or restricting
the carriage of persons or goods by any vehicle or class of vehicles, either
generally or between any particular places or on any particular, route;
(h) (i) make such other provisions in
relation to road transport as appear to that Government to be necessary or
expedient for securing the defence of India and civil defence, the public
safety, the maintenance of public order or the efficient conduct of military
operations, or for maintaining supplies and services essential to the life of
the community." The order of August 17, 1964 says that "in the
opinion of the State Government it is necessary and expedient so to do for
securing the defence of India and civil defence, the public safety, the
maintenance of public, order and the efficient conduct of military operations
and for maintaining supplies and services essential to the life of the
community" and then follow the two directions which we have set out above.
The first contention on behalf of the
appellants is that r. 131 (2) (gg) must be read in the context of control of
road transport and so read it only gives power to the State Government to
control the use of vehicles and does not empower it to prohibit private
operators from plying vehicles on any particular route with respect to which the
order may be made. It is true that r. 131 deals inter alia with control of road
transport and cl. (gg) of r. 1 3 1 (2) provides for prohibiting or restricting
the carriage of persons or goods by any vehicle or class of vehicles, either
generally or between any particular places or on any particular route. But we
are of opinion that the vehicles, the control of which is envisaged in cl.
(gg), cannot be divorced from the persons who are plying the vehicles. No order
can be issued to vehicles which are inanimate objects and an order under cl.
(gg) will have to be issued to the persons plying the vehicles and the
prohibition or restriction envisaged by cl. (gg) must be addressed to persons
plying the 127 vehicles mentioned therein. -Therefore when cl. (gg) envisages
prohibition or restriction of carriage of persons or goods by any vehicle or
class of vehicles, it obviously means that the order will apply to persons
plying such vehicles. The argument based on divorcing vehicles from persons
plying the vehicles is in our opinion completely fallacious and consequently
when cl. (gg) provides for prohibition or restriction with respect to vehicles,
it obviously refers to regulation of the conduct of persons plying the vehicles
or prohibiting them completely from plying vehicles. We think that is the only
way to carry out the purposes of this clause.
In this connection our attention is drawn to
S. 6 (4) of the Act, which lays down that during the continuance in force of
the Act, the Motor Vehicles Act, 1939, shall have effect subject to certain
provisions specified in cls. (a) to (f).
The provisions in cls. (a) to (f) make
certain changes in the provisions of the Motor Vehicles Act with which we-are
not concerned in the present appeals. The argument however is that this
provision shows that the Motor Vehicles Act will have full force and effect
subject to the amendments mentioned in cls. (a) to (f) and therefore it was not
open to the State Government to take over the route in question and exclude
private operators altogether without paying compensations provided in chapter
IV-A of the Motor vehicles Act. Attention has also been invited to s. 68-B of
the Motor Vehicles Act, which appears in Ch. IV-A and provides that "the
provisions of this Chapter and the rules and orders made there under shall have
effect notwithstanding anything inconsistent therewith contained in Chapter IV
of this Act or in any other law for the time being in force or in any
instrument having effect by virtue of any such law".
"It is urged on a combined reading of s.
6 (4) of the Act and s68Motor Vehicles Act that the provisions of Ch. IVA with
regard to the framing of schemes and payment of compensation must be complied
with even where action is taken under r. 131 (2) (gg) of the Rules.
This argument is met on behalf of the State
by reference to S. 43 of the Act which lays down that "the provisions of
this Act or any rule made thereunder or any order made under any such rule
shall have effect notwithstanding anything inconsistent therewith contained in
any enactment other than this Act or in any instrument having effect by virtue
of any enactment other than this Act." It does appear that there is some apparent
conflict between s. 43 on the one hand and s.
68-B of the Motor Vehicles Act read with S. 6
(4) of the Act on the other, and that conflict has 128 to be resolved. The only
way to do it is to decide whether in such a situation, S. 43 of the Act will
prevail or S. 68B of the Motor Vehicles Act will prevail. We are of opinion
that s. 43 of the Act must prevail. In the first place, s. 43 appears in an Act
which is later than the Motor Vehicles Act and therefore in such a situation
unless there is anything repugnant, the provisions in the later Act must
prevail. Secondly, if we look at the object behind the two statutes, namely,
the Act and the Motor Vehicles Act, there can be no doubt that the Act, which
was passed to meet an emergency arising out of the Chinese invasion of India in
1962, must prevail over the provisions contained in Ch. IVA of the Motor
Vehicles Act which were meant to meet a situation arising out of the taking
over of motor transport by the State. Thirdly, if we compare the language of S.
43 of the Act with S. 68-B of the Motor Vehicles Act we find that the language
of S. 43 is moreemphatic than the language of s. 68-B. Section 43 provides that
the provisions of the Act or any rule made there under shall have effect
notwithstanding anything inconsistent therewith contained in any enactment
other than the Act. This would show that the intention of the legislature was
that the Act shall prevail over other statutes. But we do not find the same
emphatic language in S. 68-B which lays down that the provisions of Ch. IV-A
would prevail notwithstanding anything inconsistent therewith contained in Ch.
IV of the Motor Vehicles Act or in any other law for the time being in force.
The intention seems to be clear in view of the collocation of the words
"in Chapter IV of this Act" with the words "in any other law for
the time being in force" that Ch. IV-A was to prevail over Ch. IV of the Motor
Vehicles Act or over any other law of the same kind dealing with motor vehicles
or for compensation. On the other hand s. 43 of the Act emphatically says that
the Act will prevail over any enactment other than the Act, and this suggests
that the legislature intended that the emergency legislation in the Act will be
paramount if there is any inconsistency between it and any other provision of
any other law whatsoever. Such a provision is understandable in view of the
emergency which led to the passing of the Act.
Another argument under S. 6 (4) of the Act is
that by that provision the Motor Vehicles Act must be held to derive its
authority from the Act and thus be treated as if it was a part of the Act.
Emphasis is laid on the words "shall have effect" in this connection
and it is urged that by virtue of these words, the Motor Vehicles Act must be
deemed to derive its authority from the Act and therefore must be treated as
part thereof. In consequence, it is said 129 that s. 43 which lays down that
the Act and the Rules there under shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than the Act will not
apply because the Motor Vehicles Act is a part of the Act. We are of opinion
that there is no force in this argument. The words "shall have
effect" appearing in s. 6(4) of the Act have to be read in the context of
that sub-section, In that context they only mean' that the Motor Vehicles Act
will continue as before subject to the amendments made by s. 6(4). These words
in the context of s. 6 (4) do not mean that the entire Motor Vehicles Act is
being made a part of the Act; and it is only the six clauses making changes in
the Motor Vehicles Act which can at the, best be treated as part of the Act.
The over-riding effect given to orders passed under the Act and the Rules by s.
43 of the Act cannot therefore be taken away with respect to the provisions of
the Motor Vehicles Act other than clauses (a) to (f) of s. 6 (4). It is not in
dispute that we are not concerned in the present case with cls. (a) to (f) and
as a matter of fact if we look at these clauses they are concerned with making
provisions which over-ride certain provisions of the Motor Vehicles Act. The
argument that the entire Motor Vehicles Act must be read as a part of the Act
must therefore be rejected and in consequence s. 43 of the Act will have
over-riding effect in accordance with its tenor.
In view therefore of the provisions contained
in S. 43 of the Act which as we have said already was passed to meet a grave
national emergency, the argument that the provisions contained in Ch. IV-A for
framing a scheme and paying compensation must still be complied with where
action is taken under r. 131 (2) (gg) of the Act must be rejected.
Then it is urged that by passing the impugned
order, the commercial undertaking of the union is destroyed, and that this
could not be the intention behind cl. (gg) of r. 1 3 1 (2) of the Rules. We are
of opinion that in this case there is no destruction of the commercial
undertaking of the union, for the simple reason that it is not disputed that
this is not the only route on which the union is plying its vehicles and the
impugned order does not touch the other routes on which the appellants may be
plying their vehicles.
Further there is nothing in the order which
destroys the commercial undertaking even otherwise, for it has neither taken
over any of the assets of the commercial undertaking nor has it in any way
interfered with the working of the commercial undertaking; all that the order
provides is that the union shall not ply its vehicles on a particular route.
This in our opinion does not amount to
destroying the commercial undertaking which is left untouched by the order. All
that may be said to have resulted from the order is that the profit making
capacity of the commercial undertaking might have been reduced to a certain
extent. That however does not in our opinion mean that the commercial
undertaking has been destroyed. We may add that even if the profit making
capacity of the commercial undertaking was lost due to one line of business
being stopped that would not amount to destruction of the commercial
undertaking, which could take up other business. So long as the order under cl.
(gg) of r. 131(2) comes within the terms of that clause, it will be good even
though it may diminish the profit making capacity of a commercial undertaking
or even reduce it to nothing in a particular -line of business. We are
therefore of opinion that the impugned 'order is in accordance with the terms
of cl. (gg), sub-r. (2) of r. 131 and cannot be said to go beyond the powers
conferred on the State Government by that clause.
Lastly it is urged that in any case the
second part of the order which directs that the Roadways Vehicles will only ply
for carriage of persons and goods on the route in question cannot fall under
cl. (1) of r. 131(2). We have already set out cl. (1). That clause in a sense
is complementary to the provisions of other clauses of r. 131(2). Where the State
Government decides to issue a prohibition under cl. (gg), it must naturally
provide for alternative methods for the carriage of persons or goods on the
prohibited route and cl.
(1) clearly makes provision for this. It
gives powers to the State Government to make such other provisions in relation
to road transport as appear to it to be necessary -or expedient for securing
the defence of India, etc.
Obviously when the State Government, as in
this case, prohibited the union from plying its vehicles on this particular
route, a vacuum was created in the matter of carriage of persons and goods.
That vacuum had to be filled in the interest of securing the defence of India,
civil defence etc. To fill that vacuum the State Government directed that U.P.
Government Roadways vehicles shall ply for the same purpose on this route.
Clearly the vacuum was filled by the Roadways, because that Organisation was
readily available to Government to fill it. Otherwise we have no doubt that the
Government could have made some other arrangement to fill the vacuum.
Therefore, whether the vacuum was filled by ordering the Roadways to ply their
vehicles on the route in question or by making any other arrangement, that
would clearly be within the power of the State Government under cl. (1) of r.
131(2). We are therefore of opinion that the order passed by the State
Government 131 on August 17, 1964 was within its powers under r., 131 (2) (gg)
and (i) of the Rules.
This brings us to the question of mala fides.
The argument is that the order was passed under r. 131 (2) (gg) in order to
avoid payment of compensation by taking action under Ch. IV-A of the Motor
Vehicles Act. In that connection we have already set out the affidavit filed on
behalf of the State Government as to how the order came to be passed. We have
no reason to think that the averments made in the affidavit with regard to
subversive activities on the border of India with China are not correct. In view
of the facts mentioned therein there can be no doubt that the action under r.
131(2) (gg) was taken as stated in the order
for the purpose of the defence of India, civil defence, the public safety, the
maintenance of public order and the efficient conduct of military operations,
and for maintaining supplies and services essential to the life of the
community. It is true that at one stage the State Government was thinking of
nationalising this particular route and if that scheme had gone through, action
would have had to be taken under Ch. IV-A of the Motor Vehicles Act. But the
reports as to subversive activities which were thought to be prejudicial to the
defence of India had started to come in as far back as 1960 long before the
'Chinese invasion of India and the matter was under consideration for almost
four years before the impugned order was passed. The question became urgent
after the Chinese invasion of India in October 1962. Even so, the State
Government explored various means of stopping activities prejudicial to the
defence of India on the border between India and China. There can be no doubt
that the matter was considered from all aspects and eventually it was decided
to take action under r. 131 (2) (gg) of the Rules.
In these circumstances it cannot possibly be
said that the action was mala fide and was taken to avoid payment of
compensation under Ch. IV-A. The fact that at one stage nationalisation and
consequent payment of compensation under Ch. IV-A was under consideration does
not mean that if eventually action was taken under r. 131 (2) (gg) to stop
activities prejudicial to the defence of India such action was mala fide or was
merely a device to avoid payment of compensation. The long period of almost
four years which was taken for coming to a decision shows the circumspection
with which the State Government acted when it finally decided to pass the order
under r. 131(2) (gg). We are therefore of opinion that there is no question of
the order being mala fide or having been passed as a device to avoid payment of
compensation under Ch. IV-A of the Motor Vehicles Act. Some of the words used
in the counter-affidavit on behalf of the State Government in reply 132 are
somewhat Unfortunate and inapt, but we have no doubt that, the impugned order
was passed without any mala fide and was not a device merely to avoid payment
of compensation.
Then we come to the argument that the action
taken was more, than the situation demanded and therefore under s. 44 of the
Act the order was vitiated. Section 44 provides that "any authority or
person acting in pursuance of this Act shall interfere with the ordinary
avocation of life and the enjoyment of property as little as may be consonant
with the purpose of ensuring the public safety and interest and the defence of
India and civil defence". We are of opinion that if a person contends that
a particular order contravenes s. 44, it is for him to show that anything less
than what the order provides would have met the needs of the situation.
In the present case the appellants have
failed to show any such thing. Besides the affidavit filed on behalf of the
State Government shows that for a long time attempts were made to see if the
prejudicial activities complained of could be stopped in any Other Way. It was
only when it was felt that there was no other way of stopping the prejudicial
activities of the employees of the union that the order in question was passed.
In the circumstances we are not prepared to hold that the order in question
interferes with the rights of the appellants more than was necessary for the
purpose to be attained.
This brings us to the last point that has
been urged on behalf of the appellants, namely, that it was not proved that the
State 'Government was satisfied that it was necessary and expedient for
securing the defence of India and civil defence, the public safety, the
maintenance of public order and the efficient conduct of military operations
and for maintaining supplies and services essential to 'the life of the
community that the order should be passed. It does appear that the affidavits
filed in the High Court were not quite clear on this point.
Therefore we gave an opportunity to the State
Government to file an affidavit to show that the satisfaction of the State
Government necessary before passing an order of this kind was arrived at. In
consequence an affidavit was filed on behalf of the State Government on August
16, 1965 by the Deputy Secretary (Home Department) U.P. Government, Lucknow.
In that affidavit it has been stated that
under the rules relating to the allocation of business, matters relating to the
subject matter which led to the issue of the impugned notification have to be
submitted to the Chief Minister before the issue of orders. It was further
stated that after various meetings of the officials of the State, the matter
was put up before 133 The Chief Minister on December 5, 1963 or so and the
Chief Minister after considering all aspects decided that it was necessary to
take over the route in question. The matters were further considered by various
officers and there was correspondence with the Government of India and
eventually on July 30, 1964, it was finally decided by the Chief Minister to
take over the route in question in the interest of security. It was thereafter
that the order of August 17, 1964 was issued by the Transport department with
the concurrence and approval of the Home Department. In view of this affidavit
filed in this Court there can be no doubt that the necessary satisfaction of
the State Government which is a condition precedent for the issue of an order
under the rules was there before the impugned order was issued.
The appeals therefore fail and are hereby
dismissed. In the circumstances we order the parties to bear their own costs.
Appeals dismissed.
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