D.R. Venkatachalam & Ors Vs. Dy.
Transport Commissioner & Ors [1976] INSC 322 (10 December 1976)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
RAY, A.N. (CJ) BEG, M. HAMEEDULLAH
CITATION: 1977 AIR 842 1977 SCR (2) 392 1977
SCC (2) 273
CITATOR INFO :
R 1984 SC 200 (11) E 1990 SC1851 (29)
ACT:
Motor Vehicles Rules, r. 155-.4, vires of
whether against public interests whether contradicts or impliedly repeals
proviso to s. 47(1) of the Motor Vehicles Act, 1939--Expression unius est
exclusio alterius, applicability of.
HEADNOTE:
The appellants, private stage carriage
operators, applied for the renewal of their expiring bus permits. The respondent
State Transport Undertaking objected, urging preferential grounds in its own
favour, claiming to have secured higher marks with the aid of r. 155-A of the
Motor Vehicles Rules. The State Transport Undertakings claim was upheld. The
appellants moved the appellate Tribunal, and also filed a writ petition before
the High Court for directions to the appellate Tribunal to dispose of his
appeal without relying on r. 155-A. The writ petition was dismissed by a Single
Judge, and an appeal before the Division Bench also failed.
In appeal by Special Leave, the appellants
assailed the validity of r. 155-A the grounds of its being partial to the
Government against public interest and contradicting the proviso to s. 47(1) of
the Motor Vehicles Act, 1939.
Dismissing the appeals, the Court, HELD: (Per
Krishna Iyer J. for himself and on behalf of A.
N. Ray CJ.)
1. The assignment of marks under r. 155-A is
geared to public interest, which h the desideratum of s. 47(1) of the Act. This
is not an arbitrary stroke favouritism because there are many promotional
factors bearing on the interest of the travelling public which a State
enterprise qua State enterprise will, but a private enterprise qua private
enterprise will not take care of. There is equity in r.
155-A, making up, as it does, for the present
short falls in the making system vis a vis a government transport service.
[398H. 399B] P. Kumaraswamy v. State
Transport ,Appellate Tribunal, Madras & [1976] 2 SCR. 214 referred to.
The Court observed:
Legal Darwinism, adapting the rule of law to
new societal developments, so as to survive and serve the social order, is
necessary. [398B] Cardozo: The nature of the Judicial Process; Yale University
Press; pp. 151-152, relied upon.
2. There cannot be any conflict between
s..47(1) proviso and the impugned rule. The proviso does not carry any negative
injunction that transport tribunal shall not give any other preferential
consideration than what is stated in it. There is no implied interdict that in
other contingencies no preference shah be accorded. The proviso merely takes
care of a specific situation. Moreover. the marking formula does not deprive
the administrative tribunals their discretion to choose the best [399C-E] Per
H.M. Beg, 1. (Concurring) Where there is a single specified mode laid down for
doing something exercise of the legal power to do it, the specified mode may,
negatively operate.
393 (Krishna Iyer, J.) as a prohibition
against what is not prescribed at all and is outside the statute. But expression
unius est exclusion alterius could not apply ot a case where two modes of doing
the same thing are provided for by a statute itself. Here both chapters IV and
IV-A enable plying of State transport as well as privately owned vehicles on
hire on same routes, but the grounds for these combined operations under the
two chapters are different. [403A, C, D] Parbhani Transport Co-operative Society
Ltd., v. The Regional Transport Authority, Aurangabad & Ors. [1960] (3')
SCR 177, applied.
Nazir Ahmad v. King Emperor (1936) L.R. 63
I.A. 372, distinguished.
Colquhoun v. Brooks (1881) 21 Q.B. 52 at a,
65; Taylor v. Taylor (1876) 1 Ch. D. 426 at 430 and Crawfords "Statutory
Construction" 1940 Edn., Chapter 18, paragraphs 157 to 158, pages 240-244,
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos.
11781180/76.
Appeals by Special Leave from the Judgment
and Order dated 22-9-1976 of the Madras High Court in Writ Petition Nos. 3059/
75, W.A. No. 339/76 and W.P. No. 14 respectively.
Y.S. Chiale, V. Subramanyam and Vineet Kumar
for the Appellant in C.A. 1178/76.
K.S. Ramamurthi, M.N. Rangachari, A.R.
Ramanathan, K.
Thimmalai, Jayaraman, M.M.L. Srivastava and
A.T.M.S. Sampath for the Appellant in CAs. 1179-1180/76.
V.P. Raman, Addl. Sol. Gen. (In CAs. 1178 to
1180/76, D.N. Misra, J.B. Dadachanji for Respondent No. 2 in CAs.
1178 & 1180 of 1976 and Respondent 2 in
C.A. 1179/76.
K. Parasaran, Adv. Genl. Tamil Nadu, ,A.V.
Rangam, T. Sathiadev and (Miss) A. Subhashini for Respondents in CAs.
1179-80 except Transport Corporation.
K. Jayaram, V.T. Gopalan and K. Ram Kumar for
the Applicant and Intervener in C.A. 1178/76.
The Judgment of A.N. Ray C.J., and Krishna
Iyer, J. was delivered by Krishna Iyer, J.M.H. Beg, J. gave a separate
concurring opinion.
KRISHNA lYER, J. A terse presentation of the twin
contentions canvassed before us, in these appeals by special leave, after
discomfiture at two tiers below, highlights the importance of the economic role
of the State in undertaking, with legal preferences, strategic services vital
to the community. The keynote thought underlying our decision is that the jural
postulates of the old competitive order have to yield place to the new values
of developmental jurisprudence. Public law, in India, responding to the public
needs and the State's functional role mandated by the Constitution, has evolved
new approaches to old problems and given up dogmas which once prevailed during
laissez faire days but now have become obsolete because of the 'welfare'
economy which has been nurtured. This radical change in jural 394 perspectives
has its impact on canons of statutory construction and on verdicts about the
vires of legislation. All these generalities acquire appropriate application in
the present cases which arise under the Motor Vehicles Act, 1939 (Act IV of
1939) (the Act, or short) from challenges before the High Court without avail,
by private operators, of the permit granted to the State Transport Undertaking
(STU) by the transport tribunals. The validity of r. 155A of the Motor Vehicles
Rules framed under s. 68 of the Act is in issue.
The core of counsel's submissions is
two-fold: (1) Is rule 155A, assigning five marks for a State undertaking, not
family violative of s 47 of the Act? Does the later amendment to the proviso to
s. 47 giving preference to State transport systems, other things being equal,
impliedly repeal, as contrary to its content, rule 155A which gives better
advantage to the favoured category, fulfilling the spirit of the statutory
amendment more tellingly ? We will proceed further after stating the
circumstances leading up to the writ petition before the High Court and the
appeal before us.
The appellants, who have come by special
leave to this Court, are private stage carriage operators. We will relate the
facts of one case (Civil Appeal No. 1178 of 1976) the decision in which will
settle the fate of the rest, the decisive point of law being identical. The
permit of the appellants but on the route Salem to `rode was to have expired on
September 13, 1974 and so he applied for renewal under s. 58(2) of the Act. The
respondent-State Transport Undertaking objected to the renewal of the permit
urging preferential grounds in its own favour. The State undertaking's claim
was upheld on the score that it secured higher marks computed with the aid of
r. 155-A. Baulked in his application for renewal, the appellant challenged the
order before the Appellate Tribunal. Apprehending an adverse decision on the
strength of r. 155-A, he filed a writ petition before the High Court praying
that a direction be issued to the Appellate Tribunal to dispose of his appeal
without relying on r. 155-A. The plea was negatived by the learned Single Judge
and a Division Bench dismissed the appeal there from. Aggrieved by the
concurrent findings the appellant has assailed before us the vires of r. 155-A
as obnoxious to public interest excluding, in some measure, a fair competition
and being contrary to the proviso to. s. 47 (1 ) of the Act.
A meaningful discussion of the points debated
at the Bar has to begin with a brief outline of the scheme of the Motor Vehicles
Act in the branch relating to grant of permits for transport vehicles (Chapter
IV). All transport vehicles, before they can be plied in any public place,
require permits under s. 42 and even government vehicles, if put to commercial
use, have to possess permits. Applications are made for stage carriage permits
under s. 57 and the considerations germane to their grant are set out in s. 47
of the Act. It is common ground, and decisions are legion in support thereof,
that the interest of the public generally is the super-consideration decisive
of the award' of permits when there is a plurality of applicants. He who can
serve the public best gets the permit to ply the stage carriage from the
quasi-judicial authority charged with the responsibility for choice. We may
read the relevant part of s. 47(1) here:
395 (Krishna Iyer, J.) "47. Procedure of
Regional Transport Authority in considering application for stage carriage
permit,-(1) A Regional Transport Authority shall, in considering an application
for a stage carriage permit, have regard to the following matters, namely :(a)
the interest of the public generally;
X X X X Provided that other conditions being
equal, an application for a stage carriage permit from any State Transport
Undertaking or a Cooperative Society registered or deemed to have been
registered under any enactment in force for the time being shall, as far as may
be, be given preference over applications from individual owners.
X X X X" The interest of the public
generally, is often-times too vague and, generally, the exercise of discretion
deserves to be canalised to guide the statutory bodies and to facilitate better
appreciation by the applicants of the claims that may ordinarily be considered
by transport tribunals. From this angle, the Tamil Nadu State has framed rules.
expressly subordinated to the paramount factor of public interest which shall
weigh with tribunals when adjudging among competing claimants. 'This Court, in
Kumaraswamy(1), summed up the purport of the rule thus:
"The system of marks, under the Rules
framed under the Act by the Tamil Nadu Government, prescribes the various
qualifications for applicants for permits for passenger transport under the Motor
Vehicles Act. Rule 155-A crystallises these considerations and describes them
as guiding principles for the grant of stage carriage permits. The rule itself
emphasizes what is obvious, that the paramount consideration of the interest of
the public, as enshrined in Section 47(1), must be given full weight while
awarding per mits.
That means to say that the various factors
set out in rule 115-,4 are subject to section 47(1). This is clarified by
sub-rule (4) of Rule 155-A, which runs thus:
"After marks have been awarded under
sub-rule (3), the applicants shall be ranked according to the total marks
obtained by them and the applications shall be disposed of in accordance with
the provisions of sub-section (1 ) of section 47." There is no doubt that
bus transport is calculated to benefit the public and it is in the fitness of
things that the interest of the travelling public is highlighted while evaluating
the relevant worth of the various claimants." Rule 155A(3)D(1) offends
against the prescription in the proviso (1) [1976] 2 S.C,R.214.
396 to s. 47(1 ) and is void, according to
counsel for the appellants. Before examining this alleged vice, we may as well
read sub-rule (3) of Rule 155-A to the extent necessary:
"(3) After eliminating in the manner
laid down in sub rule (2), the applicants who are unsuitable, marks shall be
awarded for assessing the different qualifications of the remaining applicants
for the grant of permits as follows :(A) Residence--Two marks shall be awarded
to the applicant who has his principal place of business or permanent residence
at either terminus or on the route.
Explanation.--The term 'principal place of
business' shall mean only the registered headquarters of the company and not
the residence of the Managing Director or any other Director of the Company.
(B) Technical qualification (for Owner or
Managing Director).---Two marks shall be awarded to the applicant if the Owner
or the Managing Director of the organisation has technical qualification which
may be useful to run the transport service efficiently.
(C) Workshop facilities.--Two marks _shall be
awarded to the applicant who is in possession of workshop facilities as given
in Explanation under item (2)(iv).
(D) (i) Five marks shall be awarded to the
applicant falling within the proviso to clause (c) of section 62-A of the Motor
Vehicles Act, 1939, i.e., State Government, Central Government or any
Corporation or Company owned by the Central Government or State Government.
(ii) The applicant who operates not more than
nine stage carriages excluding spare buses, shall be awarded marks as follows
:-(1 ) Applicant operating one to three buses--4 marks.
(2) Applicant operating four to six buses--3
marks.
(3) Applicant operating seven to nine
buses--2 marks.
Provided that if a new entrant has made an
application for a short route other than town service route, no marks shall be
awarded to any applicant under clause (B), (C) and (D) (ii)." The ground
of invalidation urged is that there is no justification for grant of 5 marks to
an applicant falling within r. 155A (3)(D)(1) solely for the reason that it is
owned by the State Government. Ownership is irrelevant and the sacrifice of
public interest at the altar of government interest is contended to be a
flagrant partiality shown by the subordinate legislation in the teeth, and
transgressing the limits, of the equal consideration implicit in s. 47(1 ).
The. second argument 397 (Krishna Iyer, J.) is that the proviso to s. 47(1), as
amended by Act 48 of 1974 (Tamil Nadu Amendment Act) gives preference to a
State Transport Undertaking, other things being equal, and impliedly provides
against any larger preference being shown to such an undertaking in the guise
of rules. For this reason, the generosity of the rule being contrary to the
narrow preference in the proviso to the section (brought in by later
amendment), the former cannot co-exist with the latter and must be taken as
impliedly repealed. Although this amendment to the Act was later than the
promulgation of the rules, the law as it stands today is the basis of our judgment.
Thus the two question formulated right at the beginning of the judgment arise
in the setting of facts and law we have broadly described above.
It was urged by Shri Chitale, followed by
Shri Ramamurthy, in two of the several matters heard together, that Part IVA
provided for monopolistic award of permits to the State Transport Undertaking
but Part IV put everyone on a competitive basis, regardless of whether one was
a State undertaking or not, the most meritorious winning the battle in a free market
economy. If the soul of Part IV were free competition, not 'rigged' selection,
aid in the shape of extra marks given by rules had to be withdrawn and every
applicant had to run without anyone being given a handicap in the race. State
undertakings being awarded 5 grace marks for no reason except that they
belonged to the State was a gross violation of the spirit and letter of s. 4 7
(1 ) which postulated the promotion of public interest as the basic
consideration and the selection of the ablest as the criterion for choice. Both
counsel, in their overlapping arguments, stressed that there was a negative
mandate in the proviso to s. 47(1) not to prefer a State undertaking save where
other conditions were equal and if the State undertaking was unable to attain
the condition of equality with another, its claim could not be promoted by the
artifice of assignment of marks to a State undertaking qua State undertaking.
Public law, in our pie-bald economy and
pluralist society, responds to societal challenges and constitutional changes.
TO miss the ideological thrust of our Constitution and the economic orientation
of our nation while construing legislation relating to public law and scanning
them for their validity is to fail in understanding the social philosophy that
puts life and meaning into the provisions of the Act. The law, being realistic,
reckons with the socialist sector covering State and co-operative enterprises.
The special status of a government-owned
transport undertaking in a Welfare State is obvious. It has large resources to
cater to the traffic needs. It has, within its range of influence and
coordination. many services useful to the travelling public, which may be
beyond the reach of private ownership. Its functional motto is not more profits
at any cost but service to citizens first and in a far larger measure than
private companies and individuals, although profitability is also a factor even
in public utilities. Its sensitivity to community welfare and encouragement of
labour participation, its accountability to the Government, the legislature and
the public put it in a category by itself. It is socially conscious, not profit
obsessed. We are aware of the shortfalls of some public sector undertakings in
some respects 398 but it needs little argument to hold that to classify State
transport systems on a separate footing is realsic and is ordinarily no sin
before the principle of equality before the law. The legislative body has done,
in the given circumstances, what it thought was sound policy and we find no
vice in the policy.
To classify what is conceptually and
operationally different into a separate category is intelligence, not
impertinence. The judicial art of interpretation and appraisal is imbued with
creativity and realsm, especially where fundamental changes have been wrought
by the Constitution in our approach to public sector enterprises. Legal
Darwinism, adapting the rule of law to new societal developments, so as to
survive and serve the social order is necessary:
"That court best serves the law which
recognizes that the rules of law which grew up in a remote generation may, in
the fullness of experience, be found to serve another generation badly, and
which discards the old rule when it finds that another rule of law represents
what should be according to the established and settled judgment of society,
and no considerable property rights have become vested in reliance upon the old
rule. It is thus great writers upon the common law have discovered the source
and method of its growth, and in its growth found its health and life. It is
not and it should not be stationary. Change of this character should not be
left to the legislature. If judges have woefully misinterpreted the mores of
their day, or if the mores of their day are no longer those of ours, they ought
not to tie, in helpless submission, the hands of their successors."
(Cardozo: The Nature of the Judicial Process: Yale University Press: pp.
151-152).
This refreshing perspective guides us to look
at the submissions advanced. Both the contentions can be shot down by three
considerations. Firstly, a State enterprise, in a truly Welfare State, is
charged with a social consciousness and responsibility for its citizens, an
attention to serve them and a willingness to embark on public utility undertakings
better to fulfill people's demands. The public sector enterprises are expected
to be model employers and model servants, planning their budgets, subjecting
themselves to public audit and criticism and inquest by legislative committees
and the Houses of the legislature. Profits are their concern but, more
importantly, public weal is their commitment. Such is the philosophy of the
State sector in our socialistic pattern of society. Article 19(6)(ii) and Art.
38 of the Constitution, s. 47 (1 ), especially the proviso, and Charter IVA of
the Act (now governed by the impregnable Ninth schedule to the Constitution)
throw light on this policy of the paramount law. Here, therefore, the rule
making authority, having regard to all relevant circumstances, has decided to
award to a State Transport Undertaking 5 marks. This is not an arbitrary stroke
of favouritism because there are many promotional factors bearing on the
interest of the travelling public which a State enterprise qua State enterprise
will, but a private enterprise qua private enterprise will not, take care of.
399 (Krishna lyer, J.) After all, private
enterprise has its primary motivation in profit, although, under State
direction, it is becoming socially responsive. The superiority in many respects
(not all respects) of State Transport Undertakings, in the legislative
judgment, has led to r. 155A. This classification has noetic nexus with and
rational relation to the object of augmenting the good of the passenger
community. The theory, rooted in the obsolescent laissez faire economics, that
only cold competition among claimants to run businesses brings out the best
operator has serious limitations in fields where the focus is on public service,
not gains of business.
Public law, adapting itself to this
socio-economic view, shifts its emphasis. This is what we have earlier called
legal Darwinism. We, therefore, hold that the assignment of marks under r. 155A
is geared to public interest, which is the desideratum of s. 47 ( 1 ) of the
Act.
We now move on to an examination of the
alleged fatal incompatibility between the proviso to s. 47(1) and L 155A.
This second submission of counsel is a trifle
mystifying.
There cannot be a contradiction without
diction. Unless s. 47(1) proviso carries a negative injunction that transport
tribunals shall not give any other preferential consideration than what is
stated in it, there cannot be any conflict between it and the impugned rule.
The proviso to the section does nothing of the kind. It merely takes care of a
specific situation. Where a State Transport Undertaking: and a private operator
are equally balanced, the scales may be tilted in favour of the former. There
is no implied interdict that in other contingencies no preference shah be
accorded. It is not a 'Thus far and no further'. Indeed, the spirit of this
proviso has been carried further by the rule, having regard to the realities of
the total transport system plying in the State.
The third consideration which silences the
appellant's charge of violation of s. 47 is that the marking formula does not
deprive the administrative tribunals of their discretion to choose the best.
The consternation of the private entrepreneurs that by manipulating the marking
mechanism the State undertaking, regardless of its demons trable inferiority of
public service, will knock off all the permits, paralysing the power of the
Tribunal to pick and choose, by the overwhelming and inevitable superiority of
marks, is misplaced. The fear is falsified if we read the rule aright. It has,
written on its face, its own limitation. Marks shall guide, not govern the
award. Full discretion, to some extent, canalised by the marking procedure,
still vests in the Transport Authority. For, the marks, these authorities will
remember, sway the exercise of judgment, not supersede it. It is conceivable
that the pecularities of a route, the calamitous performance in an area of a
State transport system, the outstanding special facilities of a particular
private operator or other like feature may outweigh the mechanics of marks.
After all, many qualifications, advantageous to the travelling public, may be
thought of, untouched by the rigid marking moulds. They are not irrelevant and
may still be regarded by the tribunals. All this leads to the conclusion that
marks shape but do not clinch the ultimate selection. The public is the
consumer; its plenary service is the final test. Therefore, these is 400
nothing in r. 155A deprivatory of the discretion vested by s. 47(1).This
interpretative footnote must allay the apprehensions voiced by counsel. Nor are
we convinced that there is no possibility of a private operator exceeding the
minimum marks of a State Transport Undertaking. Moreover, the marking formula
lacks flexibility. Merely because the State Transport Undertaking has no
'residence' or workshop on the route, although its attention and ability to
react are considerable, why should it suffer a marks-created handicap ? There is
equity in r. 155A, making up, as it does, for the present shortfalls in the
marking system visa visa government transport service.
The appeals, for these reasons, must suffer
dismissal.
There will be no order as to costs.
BEG, J. I agree with the conclusion reached
by my learned brother Krishna Iyer. As arguments in this batch of cases seem to
raise some questions which I, speaking entirely for myself, consider to be
really outside the sphere of the law which we have to interpret and apply, I
would like to make some observations on the implications of these questions
argued after stating my reasons for agreeing with my learned brother.
Mr. Chitaley's first argument for some of the
appellants raised only what may be described as "normal" legal questions
of construction or interpretation (there is some difference between these two
allied processes as will appear from Crawfords "Statutory
Construction", 1940 Edn., Chapter 18, paragraph 157 to 158 pages 240-244),
as to whether Rule 155A(3)(D)(i), reproduced in the judgment of my learned
brother Krishna Iyer, gives effect to or conflicts with Section 47 of the Motor
Vehicles Act, 1939 (hereinafter referred to as 'the Act'). It was urged by the
learned Counsel that what can be done only by resorting to Chapter IV-A of the
Act, by framing a scheme for partial or complete nationalisation of the routes
involved, cannot be accomplished by framing a rule only ostensibly purporting
to give effect to Section 47(1 ) of the Act or the proviso to it.
In ultimate analysis, the rule of
construction relied upon by Mr. Chitaley to make the last mentioned submission
is: "Expressio unius est exclusio alterius". This maxim, which has
been described as "a valuable servant but a dangerous master (per Lopes
J., in Court of Appeal in Colgunoun v. Brooks(1) finds expression also in a
rule, formulated in Taylor v. Taylor,(2) applied by the Privy Council in Nazir
Ahmad v. King Emperor(3) which, has been repeatedly adopted by this Court. That
rule says that an expressly laid, down mode of doing something necessarily
implies a prohibition of doing it in any other way. The maxim from which the
rule in Taylor v. Taylor(supra) is derived and the rule itself were discussed
and explained by this Court in the Parbhani Transport Co-operative Society Ltd.
v. the Regional Transport Authority, Aurangabad & Ors (4) with specific
reference to the argument advanced there that, (1) (1881) 21 Q.B.D. 52 at 65.
(2) (1876) 1 Ch. D. 426 at 430. (3) (1936) L.R. 63 I.A. 372. (4) [1960] (3) S.C.R.
177.
401 as Chapter IV-A is meant for running its
own buses by the State by nationalisation of Motor Vehicle Road Transport
Services, it was not open to the State to apply for permits at all under
Chapter IV of the Act which applies to private operators only. This
argument,repelled by this Court there has been put forward before us in a
somewhat different and attenuated form by Mr. Chitaley. Nevertheless, the basic
rule of interpretation submitted to us is the same as the one which was relied
upon in this Court in the Parbhani Transport Co-operative Society's case
(supra) in an attempt to exclude the State Transport Undertaking altogether
from entry into what was sought to be made out to be the exclusive preserve of
private operators. Before us, it is contended that exclusion of private
operators could only be brought about by resorting to a duly framed scheme, on
appropriate grounds given in Section 68C of the Act, but not indirectly by
framing the kind of rule which has the effect of excluding private operators
from the sphere of open competition which, it is submitted postulates an initial
equality of positions. This argument rests, as I will indicate below, on two
erroneous assumptions: firstly, that Rule 155A(3)(D)(i) has the effect of
excluding private operators; and, secondly, that the proviso to section 47(1)
compels the permit issuing authorities to postulate or start by assuming an
equality of conditions, as between private operators and a State Transport
Undertaking. Indeed, if they were to start with the assumption of equality they
will have to give preference to the State Transport Undertaking straightaway
because that is what the proviso requires. The mainstay of the arguments of
learned Counsel for the appellants before us, however, is that Rule
155A(3)(D)(i) really has the effect of excluding the private operators
altogether by making it impossible for them to ever obtain preference over the
State Transport Undertaking when it applies for a permit in competition against
them.
The reply on behalf of the State is that no
exclusion of private operators is either intended or brought about by an
application of Rule 155A(3)(D)(i) of the Act. On the other hand, it is
submitted that, as an ordinary operator and a State Transport Undertaking are,
in many ways, so unlike each other that, unless five marks were assigned to
each application of the State Transport Undertaking, it could not compete at
all, on a fair and equal footing, with private operators, who are able to
obtain straightaway two marks for residential qualifications, four marks if
they are operating not more than three buses, and two marks for workshop
facilities. apparently, the residential qualification has reference to
residence within the area in which the motor vehicles are to ply, and marks
workshop facilities are granted to operators who are able to show such facilities
on particular routes whereas the State Transport Undertakings, it is pointed
out, will neither have a residence within such an area nor may be able to show,
in a particular case, workshop facilities on particular routes even though they
may have better workshop facilities on the whole. Again, two marks are to be
given to private concerns or organisations, plying on particular routes, if
their owners or Managing Directors have certain technical qualifications. It is
pointed out that, as State Transport Undertakings do 402 not have individual
owners or Managing Directors, for whom these marks could be allotted, even
though they may have technically much better qualified personnel to attend to
their motor vehicles, the impugned Rule 155A(3)(D)(D could be justified as
meant only to place State Transport Undertakings on a footing of possible
equality with private operators in competing. for permits to be granted under
Section 47(1) read with Section 42(3) of the Act and to do no more.
Furthermore, Rule 155A(3)(D)(i) occurs in a group for marks to be assigned on
the basis of the number of vehicles run by the operators. In any case, it was
submitted that it is a fair provision as a rough guide but is not decisive by
any means. It seems to me that the contention advanced on behalf of the State
that the impugned part of Rule 155A enables provisions of the proviso to
Section 47(1), read with Section 42(3), to be worked a manner in which the
statutory provisions were intended to overate and does not really authorise a
circumvention or infringement of the provisions of Chapter IV of the Act, is
well founded.
The manner in which provisions of Chapter IV
of the Act were meant to operate in cases of competition between private
operators and State Undertakings was explained in the Parbhani Transport
Co-operative Society's case (supra) as follows (at p. 184):
"The Government has of course the power
to do. any business it lies 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 under S.
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 anyone 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 (1936) L.R. 63,
I.A. 372, 381) does not permit the ordinary meaning of s. 42, sub. s.(1) and
sub. s.(3), el. (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
different. To such a case the principle of Nazir Ahmad's case cannot be
applied".
403 Both Chapters IV and IVA enable plying of
State transport as well as privately owned vehicles on hire on same routes, but
the grounds for these combined operations under the two chapters are different.
The governing principle of Section 47(1) is to preserve as free and open a
competition as possible in public interest, whereas the reason for allowing
private operators upon a nationalised route may be broader one of public policy
which may favour a decision against sudden stoppage of privately provided motor
transport, so as to avoid wastage of national wealth, even though it takes the
form of investments by individual entrepreneurs, or, its object may even be
prevention of undue hardship to private operators. Other reasons for permitting
combined services can be. given. It is, however, possible only under Chapter
IVA to exclude private operators completely. But, unless any rule relating to
provision of motor transport under chapter IV has that effect it cannot be
asserted that what can be done only by resorting to Chapter IVA is being
attempted under the provisions of Chapter IV.
The rule in Nazir Ahmad's case (supra)
applies only to cases where there is a single specified mode laid down for
doing something in exercise of the legal power to do it. In that event, the
specified mode-may, negatively, operate as a prohibition against what is not
prescribed at all and is outside the statute. But, it could not apply to a case
where two modes of doing the same thing are provided for by a statute itself.
Nor, as I have indicated above, could it be said that what is to be done under
Chapter IV and what can be done under a scheme under Chapter IVA are really the
same simply because, in a given case, the results of both may appear to be
similar or even identical.
Mr. Ramamurthi, appearing on behalf of some
of the appellants, embarked on quite an ambitious argument built upon an
elaboration of the theme that Chapters IV and IVA belong to two different
fields or spheres of action which cannot, so to speak, be allowed to mix,
overlap, or collide.
It was contended that the waters of what are,
in the eye of law, two different streams of activity. must not be allowed to
mingle. If 1 am not mistaken, even the word "pollute" was used, in
the flow of arguments, to describe, possibly in a light vein, the alleged
inequity of an invasion by a State Transport Undertaking of the supposedly exclusive
preserve of private enterprise. It was suggested that such a result would
involve "pollution" of the domain of open competition, which is
forbidden territory for State Undertakings introduced as a consequence of
another ideology or sphere of action found in Chapter IVA. It seems to me that
to hear such an argument, advanced even in a lighter vein, is really rather
surprising in view of the language of the statute and welt known facts to which
it is related. It is quite well known that ours is what is known as a
"mixed economy". The highest norms of our-law are embodied in our
Constitution. Article 19(6)(ii) of the Constitution clearly contemplates:
"the carrying on by the State, or by a Corporation or controlled by the
State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or. otherwise".. And,-in order to fulfill
the objectives of the Preamble. to our Constitution, the Constitutional
mandate, contained in Article 39(c) of the Constitution, which the State has to
carry out, may make it imperative upon the State, in appropriate circumstances,
either to take over or nationalise motor transport on roads in any region or
area completely or to supplement the Transport Services provided by private
operators with those provided by the State. It seems to me that neither Chapter
IV nor Chapter IV-A can be really put into two separate water-tight
compartments so as to make it imperative either to exclude State Transport
Undertakings from operating under the provisions of Chapter IV or to exclude
private operators when a scheme under Chapter IV-A, which may itself provide
for only a partial exclusion of such operators, is in force. In the face of the
clear words of proviso to Section 47 (1 ) of the Act, enabling State Transport
Undertakings to provide Transport facilities in open competition, and of
Section 68(C) in Chapter IV-A of the Act, enabling "the exclusion complete
or partial" of private operators from particular areas or routes, such an
argument cannot be put forward at all before us under some preconceived notions
even after these very notions had been rejected by this Court in the Parbhani
Transport Co-operative Society Ltd's case (supra).
It is clear that the two chapters of the same
Act are both intended to subserve "the interest of the public generally"
in any area in the country, That is the integrating or governing principle
evident from the language of the Act itself in both Chapter IV and Chapter lV-A
of the Act.
An argument advanced on behalf of the
appellant seemed to be that Rule 155A(3)(D)(i) results in defeating the mandate
of Section 47(1) of the Act, that the Regional Transport Authority must, as
explained repeatedly by this Court, keep "the interest of the public
generally" in the fore-front.
As already indicated by me, this argument
really proceeds on the erroneous assumption that the mere fact that the State
Transport Vehicles are given five marks would defeat public interest by
excluding consideration of all facts except that the State Undertaking has
applied for one or more permits on a particular route. As my learned brother
Krishna Iyer has also pointed out, this is an unwarranted assumption. Rule 155A
gives only guidance, but the totality of factors mentioned in Section 47(1)'really
decide.
It was suggested on behalf of the State
Transport Undertaking that the obvious capacity of a State Undertaking to
provide facilities which are beyond the reach of private operators, that its
actions are subjected to such constant, vigilant, and rigorous control on
behalf of the public, and that it is bound to be so free from any desire to
make profit.s, by sacrificing public interests or convenience of passengers
that, even if nothing else was considered, these presumed advantages would justify
the award of five marks on each application of the State Undertaking for a
permit.
If this line of reasoning was completely
accepted and carried to its logical conclusion, the provision/or giving five
marks ,to each application of the State Undertaking would become quite otiose
or unnecessary because, in that case, the State Undertaking would, by relying
merely on a presumed superiority for purposes of Section 47 (1 ), get a preference
automatically. The proviso to Section 47 (1 ) of the Act would then, apart from
making it clear that the State Undertaking can also apply for permits, for
which 405 purpose Section 42(3) was enough, serve: no useful purpose.
Indeed, if such a view were to be accepted,
the first part of the proviso to Section 47 (1 ) would seem to rest on a false
premise because there could be no case in which "other conditions"
could ever be "equal" as between a State Transport Undertaking and a
private operator. The State Transport Service would, in that case, always get a
preference. For this reason, I do not think that this line of reasoning could
be pushed too far. It has to be assumed, in view of the opening words of the
proviso to section 47 (1 ), that there may be cases in which an application of
the basic principle, contained in Section 47 (1) of the Act, may tilt the
balance either in favour of the State Undertaking or the private operator. The
proviso applies only where the State Undertaking could' reasonably be deemed to
be in a position of equality as regards comparative advantages offered by it.
As there cannot, between such dis-similar operating units, be comparability of
conditions or advantages offered unless some rule is flamed and applied which
could make comparison reasonably possible, it seems to me that Rule 155A(3)
(D)(i) is justifiable on the ground that it makes what is legally contemplated
and permissible also practicable.
The proviso. to Section 47 (1 ) reads as
follows:
"Provided that other conditions being
equal, an application for a stage carriage permit from any State Transport
Undertaking or a co-operative Society registered or deemed to have been
registered under any enactment in force for the time being shall, as far as may
be, be given preference over applications from individual owners." An
examination of this proviso shows that an. equality of other conditions is
contemplated before any question of giving preference, merely on the ground
that the applicant is the State Transport Undertaking or a Cooperative Society,
can arise. If other conditions are equal, then, undoubtedly, the choice as
between such equals must, if the proviso is to be given effect, be made in
favour of the State Transport Undertaking or a Cooperative Society
automatically.
That is how, in such a case, See. 47(1)
itself would be deemed to operate.
The validity of the proviso is not
challenged. Even if Article 14 were available for an attack upon it, as it is
not during the current emergency, it is clear that the State Transport
Undertaking does stand in a separate category.
Therefore, it could be found entitled, for
obviously good and intelligible reasons, to preference over private operators
"other conditions being equal". The narrow question before us. Thus,
appears to me to be nothing more than whether the impugned part of Rule 155A
sub-serves or violates the proviso. The proviso itself is meant to explain what
public interest, as visualised by Section 47(1), requires. Hence it appears to
me that the validity of the impugned part of Rule 155A could be determined on
purely legal grounds as a necessary corollary of the proviso to Section 47(1).
The impugned part of the Rule is there to make the proviso workable and not to
defeat its provisions.
406 It is, however, becoming increasingly
fashionable to start with some` theory of what is basic to a provision or a
chapter or in a statute or even to our Constitution in order to interpret and
determine the meaning of a particular provision or rule made to sub-serve an
assumed "basic" requirement. I think that this novel method of
construction puts, if I may say so, the cart before the horse. It is apt to
seriously mislead us unless the tendency to use such a mode of construction is
checked or corrected by this Court. What is basic for a section or a chapter in
a statute is provided: firstly, by the words used in the statute itself;
secondly, by the context in which a provision occurs, or, in other words, by
reading the statute as a whole;
thirdly, by the preamble which could supply
the "key" to the meaning of the statute in cases of uncertainty or
doubt;
and, fourthly, where some further aid to
construction may still be needed to resolve an uncertainty by the legislative
history which discloses the wider context or perspective in which a provision
was made to meet a particular need or to satisfy a particular purpose. The last
mentioned method consists of an application of the Mischief Rule laid down in
Heydon's case long ago.
If we start from a theory as to. what the
real purpose or need is or could be, the danger is that we may be injecting a
subjective notion or purpose of our own into what is, after all, a legal
question of construction or interpretation, according to well recognised
principles, although it may be necessary, in exceptional eases, to explain or
fortify the interpretation adopted in the light of so well understood and. well
known a purpose or theory that we could take judicial notice of it and refer to
it. The exposition of the well known purpose or theoretical foundation must,
however, generally, flow from and explain an interpretation adopted, on the
strength of legally acceptable and accepted canons of construction, if we are
to avoid the danger of an a priori determination of the meaning of a provision
based on our own pre-conceived notions of an ideological structure or scheme
into which the provision to be interpreted is somehow fitted. The path of
judicial certainty and predictability has to be paved with well settled
principles of construction and interpretation. We cannot let it develop into a
slippery slope be-set with hazardous possibilities. The science of statutory
construction and interpretation--I think can call it that--rests on certain systematized
principles and rules of common sense, logic, and reason. It cannot be
transformed into a happy hunting ground for whatever may captivate the forensic
or judicial fancy or become something akin to poetry without even the
attractions of euphony.
For the reasons given above, I find that, on
an application of the ordinary and well recognised rules of interpretation,
without resorting to any of the novel methods suggested by some of the
arguments of learned Counsel for the appellants, the impugned part of Rule
155A(3) (D)(i) is valid. I, therefore, concur with nay learned brother Krishna
Iyer, and hold that the connected appeals and petitions before us must be
dismissed.
M.R. Appeals dismissed.
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