THE PARBHANI TRANSPORT CO-OPERATIVE SOCIETY LTD. versus THE REGIONAL TRANSPORT AUTHORITY, AURANGABAD AND OTHERS

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 c~rry 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(l)(g) and 14 of the Constitution. ·

p. 179

The questions raised in this matter turn on some of the provisions of the Motor Vehicles Act, 1939, as amended by Act 100of1956. These provisions have to be examined before proceeding to discuss the questions that arise. We are concerned only with Chapters IV and IV A of the Act. Chapter IV comprises ss. 42 to 68 and Chapter IVA, which was in its entirety introduced by the amending Act, consists of ss. 68A to 68I.

p. 179

Taking Chapter IV first, we find that s. 42(1) provides that no owner of a transport vehicle shall use or permit t:\le 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 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 aI)d 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.

pp. 179–180

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 IV A shall have effect notwithstanding anything to the contrary contained in Chapter IV. Section 68C is in these terms:

p. 180

680. Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in genPral or any particu Jar class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or

pp. 180–181

· 1 f h h • h S partia , o ot er persons or ot erw1se, t e tate 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. · '

p. 181

Section 68D provides for°the preferring of objections to the scheme published under s. 68C, consideration of such objections and final approval of the so.heme by the State Government. The terms of s. 68F(l) are as follows :-

p. 181, margin C

8. 68F. (1) Where, in pursuance of an approved scheme, any State transport undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier's permit or a contract carriage permit in respect of a notified area or notified route, the Regional Transport Authority shall issue such permit to the State transport under. taking, notwithstanding anything to the contrary contained in Chapter IV.

p. 181, margin C

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 Marathwada 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 apJleals 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.

p. 181, margin C

It appears that the petitioner had permits to

p. 181, margin C

run buses on four routes in Aurangabad and that these permits were due to expire on October 1, 1958. third respondent who really represents the

pp. 181–182, margin C

h S f h ment o t e tate o Bombay \lld w. o may veniently referred to as the State of Bombay, permits for two of these routes. On J\fay 19, 1958, the State of Bombn,y applied for permits for four routes under Chapter IV of the Act.. On 1958, the petitioner applied for renewal of its permits. The first respondent rejected the application of the petitioner and granted those of the Bombay. The petitioner appealed to the respondent but its !\ppeal was rejected. In the time on some date which does not n,ppear record, the petitioner had been granted temporary permits up to December 31, 1958. On the its temporary permits on December 31, 1958, petitioner would have been unable to run any buses and it therefore moved the High Bombay under art. 226 of the Constitution High Court quashed the o~ders of respondents 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 Court we are not concerned. Respondent No. ever, without re-considering the applications ed by the High Court, granted temporary permits the Stn,te of Bombay. The petitioner again the High Court which thereupon quashed the of respondent No. 1 granting temporary permits the State of Bombay. Thereafter, on March the respondent No. 1 granted temporary permits the petitioner which were later extended to 1959. On June l, 1959, the State of Bombay ed a scheme under s. 680 in Chapter IV A of Various objections were filed against the scheme nothing further appears to have been done "the scheme final. On July 18, 1959, respondent purporting to carry out the directions of Court, recfmsidered the petitioner's applications renewal and the applications of the State of for permits and rejected the petitioner's applications while allowing those ·of the State of Bombay. July, 20, 1959, t.he petitioner's temporary having expired, it ceased to operate its buses. On August 27, 1959, the petitioner filed the present peti- • . h' C d 32 f h C . t' t10n m t is ourt un er art, o t e onst1tu 10n appropriate writs quashing the order of respondent No. 1 dated July 18, 1959, restraining the S~ate 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 N:o. 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.

pp. 182–183, margin F

The petitioner first contends that in view of Chapter.IV-A the State of Bombay had 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).

p. 183

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 1 VA to enable the Government to run its buses the Government's right to run buses was restdcted 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( where it was observed that "where a power is given to do a certain thing in a certain way the thing must be done i~ 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( referred to by the Judicial Committee in Nazir Ahmad's case ( "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."

p. 183

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 dmwn 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 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 Ahrnad' s case (') 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 IV A. The Act lays down tw" independent sets of provisions in regard to the running of buses by the Government, one nnder 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. 681<' (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 Ahrnad's case(') cannot be applied.

p. 184

The learned counsel for the petitioner also referred to the maxim expressio unius 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 mat t<>r further. It is a maxim for ascert(l,ining the ~81 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.

pp. 184–185

The learned counsel then referred to the case of Viscountess Rhondda's claim ( 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 IV A was introduced by the amendment of 1956 to meet the observations made in Moti Lal v. Government of Uttar Pradesh ( 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 IV A 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 rose ( or any other case which points to an evil nor ha~ 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 the only provisions under which the Government can ply stage carriages.

pp. 185–186

I · "d 42 1 t h ,.

p. 186

t is next sa1 s. contemp a es t e owner 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 IV A 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 tra.nsport vehicles. We have earlier said that in view 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 transport vehicles. Further, under s. 68A a "State transport undertaking" has. been defined as an undertaking providing road transport service carried on a state Government. Such an undertaking is really 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(l) requires the State transport undertaking to apply for permit.s under Chapter IV and therefore contemplates it as owner of a transport vehicle for the purposes of s. which is contained in that Chapter.

p. 186, margin C

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 permits by the Government were not intended to considered under s. 47 and if Government could not come under s 47, it could not come under Chapter a't all. But assume that representations by the Goverment are not contemplated bys. 47. That does not show that applications for permits by the Government are also not contemplated by that section.

p. 186, margin A

It is also said that the matters to which the authority granting the permits is required to have regard considering applications for permits under s. 47 are such that if the State enters into competition with

pp. 186–187, margin A

h · f · h S 01t1~ens ior t e grant o perm~ts .t e ~ate mu~t necessarily get them. Therefore, it is said that it could not have been intended that the State would compete with the citizens in the matter of obtaining permits . under Chapter IV. We are unable to assent to this contention. There is nothing.in s. 47 which leads to the conclusion that whenever the Government applies along with private citizens for permits, the Government must get. them. Indeed, if that were · so, then it would not hav<:i 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 Go.vernment. It also seems to us that there is nothing in our law to prevent the Government from (;!ntering a business in competition with private citizens. Indeed, Art. 19(6) by providing that nothing in art. 19(l}(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. ·

p. 187

Our attention was then drawn to the proviso to s. 47(1) under which other things 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 follow that that section does not contemplate Government as an applicant for permit. If Government is not an individual owner, then all that happen in view of the proviso to s. 47(1) will be that co-operative society will not be able to claim any ference over the Government. All that the proviso does is to give a co-operative society a preference individual owners. It is not concerned with stating who can apply for permits.

pp. 187–188

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. petitioner cannot complain of the GovernIL1nt having applied under that Chapter. We are not Cb!led upon, therefore, to discuss the further question, whether fundamental right of the petitioner under art.19(l)(g) would have been affected by the Government having appliedfor and obtained permits under Chapter without having the right to do so. This disposes the contentions concerning the infringement of the tioner's fundamental rights under art. 19(l)(g) of Constitution.

p. 188, margin A

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). 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. contended that respondent No. I relying on various promises made by the State of Bombay to repair roads and to give other facilities to the travelling iJUblic had held that the other conditions were not equal while under the proviso, it was entitled to rely only the existing conditions. It is contended that thereby the provisions of Art. 14 had been infringed. 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 see that that decision offends Art. 14 or any other damental right of the petitioner. The respondent No. 1 was acting as a quasi judicial body and ifit made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief.· It cannot complain of a breach of Art 14.

pp. 188–189, margin A

. f th . . . th if

p. 189

Th e ot h er contention o e peht10ner at. Chapter IY permits the State to compete with a private citizen, it offends Art. 14 because in view of the vast resources of th. e State a private citizen is bound to lose in such competition. --This point is clear 1 y un £ ounde • d 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.

p. 189

For these reasons we think that this petition must fail' and hence it is dismissed with· costs. · ·

p. 189

Petition dismi;~ed. M/s. U. P. ELECTRIC SUPPLY CO., LTD.

p. 189

v. THE WORKMEN OF M/s. S. N. CHOUDHARY,

p. 189

CONTRACTORS AND ANOTHER (P. B. K. N. JJ). · · Industri~lDispute-Tribunal deciding issue not rejerred to it~ Jurisdiction-U.P. Industrial Dispute Act, r947 (XXV III of r947), &~~~0~& ..

p. 189

The appellant company used to employ J\Iessrs. S. Chou-

p. 189

as its contractors for doing certain work for it and the contractors in their turn used to employ some workmen to carry out the work _w)lich they took on contract. A dispute having arisen between the contractors and their workmen an application was made before the conciliation board by the workmen in which both the company and the contractors were parties and four · matters were referred, namely, non-grant of bonus for two years, non-grant of festival holidays, non-fixation of minimum wages · of those workmen at par with the workmen of the company and non-abolition of the contract system. As conciliation failed the Government referred the dispute to the Industrial Tribunal under the U.P. Industrial Disputes Act in which only three points out of the four mentioned above were referred and the question of non-abolition of the contract system was· not referred. The parties to this reference were the contractors and their workmen . and not the appellant company. By a subsequent notification, ho;vever, the Government impleaded the Company asa party to the dispute but did not amend the previous referring order by

p. 189