Associated Transports (Madras) Private Ltd. vs The Union of India (UOI) and Others

P.S. Kailasam, C.J.—This Writ Appeal is preferred by the Associated Transports (Madras) Private Limited, by its Managing Director

against the order of Mohan, J., dismissing the appellant''s writ petition for the issue of a writ of prohibition prohibiting the Union of India, the State

of Tamil Nadu and the Special Secretary to Government, Home Department, Madras, from taking further proceedings pursuant to the notice of

hearing in Memo No. 40-804/Tr. III-72-36 dated 5-5-1976.

The appellant is a stage carriage operator, and, among other permits, ha is operating one permit on the inter-State Route Madras (Mint.) to

Naidupet. The State of Tamil Nadu formulated a policy of nationalisation of bus routes, the distance of which exceeded 75 miles or when the route

touched the city of Madras. The route was covered by a draft scheme of nationalisation u/s 68-C of the Motor Vehicles Act. A scheme of

nationalisation was issued by the Secretary to Government by virtue of the delegated powers vested in him under Rule 23-A of the Madras

Business Rules. The appellant filed his objections to the draft scheme. The third respondent issued a notice of hearing to consider the objections

filed by the appellant u/s 68-D of the Act. The hearing was posted to 24th May, 1976. The writ petition was filed for the issue of a writ of

prohibition prohibiting the respondents from taking any further proceedings pursuant to the said notice dated 5th May, 1976, Mohan, J., who

heard the writ petition, dismissed it. Hence this writ appeal by the operator.

Mr. K. K. Venugopal, the learned counsel for the appellant submitted that the Governor had acted without authority, as, according to him, it

was not open to the Governor to bring into existence a Cabinet system of Government consisting of two Advisers appointed by him between

whom he had distributed all the portfolios to enable them to finally decide all matters. Learned counsel further submitted that the functions of the

Secretary acting u/s 68-D of the Act was quasi-judicial in nature, that those functions were withdrawn by the President and transferred to the

Governor, and that the Governor alone could discharge those functions. Thirdly he submitted that, in the absence of the Cabinet system of

Government and by reason of the suspension of Article 166(3) of the Constitution of India, the old Rules of Business would not continue to be in

force.

On 4th Feb., 1976, the President''s Rule was proclaimed in Tamil Nadu and the Notification and Order of the Government of India issued on

31st Jan., 1976, were republished in the Tamil Nadu Government Gazette dated 4th Feb., 1976. The Notification is G.S.R. 55 (E). The relevant

portion of the Notification runs as follows:

G. S. R. 55 (E). The following Proclamation by the President is published for general information:

Whereas, I, Fakhruddin Ali Ahmed, President of India, have received a report from the Governor of the State of Tamil Nadu and after considering

the report and other information received by me, I am satisfied that a situation has arisen in which the Government of that State cannot be carried

on in accordance with the provisions of the Constitution of India (hereinafter referred to as ''the Constitution'') :

Now, therefore, in exercise of the powers conferred by Article 356 of the Constitution and of all the other powers enabling me in that behalf, I

hereby proclaim that I -

(a) assume to myself as President of India all functions of the Government of the said State and all powers vested in or exercisable by the

Governor of that State;

(b) declare that the powers of the Legislature of the said State shall be exercisable by or under the authority of Parliament; and

(c) make the following incidental and consequential provisions which appear to me to be necessary or desirable for giving effect to the objects of

this Proclamation, namely -

(i) in the exercise of the functions and powers assumed to myself by virtue of Clause (a) of this Proclamation as aforesaid, it shall be lawful for me

as President of India to act to such extent as I think fit through the Governor of the said State;

(ii) (Omitted)

(iii) (Omitted)

(iv) any reference in the Constitution to the Governor shall in relation to the said State be construed as a reference to the President, and any

reference therein to the Legislature of the State or the Houses thereof, shall, in so far as it relates to the functions and powers thereof, be

construed, unless the context otherwise requires, as a reference to Parliament, and, in particular, reference in Article 213 to the Governor, and to

the Legislature of the State or the Houses thereof, shall be construed as references to the President and to Parliament or to the Houses thereof

respectively;

Provided that nothing herein shall affect the provisions of Article 153, Articles 155 to 159 (both inclusive), Article 299 and Article 261 and paras 1

to 4 (both inclusive) of the Second Schedule or prevent the President from acting under sub-Clause (i) of this clause to such extent as he thinks fit

through the Governor of the said State;

(v) any reference in the Constitution to Acts or laws of or made by the Legislature of the State shall be construed as including a reference to Acts

or laws, made in exercise of the powers of the Legislature of the State, by Parliament by virtue of this Proclamation or by the President or other

authority referred to in Sub-clause (a) of Clause (1) of Article 257 of the Constitution and the Madras General Clauses Act, 1891, (Madras Act 1

of 1891) as in force in the State of Tamil Nadu, and so much of the General Clauses Act, 1897 (10 of 1897) as applies to State laws, shall have

effect in relation to any such Act or law as if it were an Act of the Legislature of the State.

New Delhi, Fakhruddin Ali Ahmed The 31st Jan., 1976. President

On the same day en order was issued by the President and was published for general information. The Order, G.S.R. 56 (E) runs as follows:

G. S. R. 56 (E)--The following Order by the President is published for general information;--

In pursuance of Sub-clause (i) of clause (c) of the Proclamation issued on this the 31st day of Jan., 1976, by me under Article 356 of the

Constitution of India, I hereby direct that all the functions of the Government of the State of Tamil Nadu and all the powers vested in or exercisable

by the Governor of that State under the Constitution or under any law in force in that State, which have been assumed by the President by virtue of

clause (a) of the said Proclamation shall, subject to the superintendence, direction and control of the President, be exercisable also by the

Governor of the said State. New Delhi, Fakhruddin Ali Ahmed The 31st Jan., 1976. President''''

Particular reference may be made to clause (c) of G. S. R. 55 (E) which states that the President, while assuming to himself all functions of the

Government of the State and all powers vested in or exercisable by the Governor of that State, make the incidental and consequential provisions,

mentioned thereunder, which appears to him to be necessary or desirable for giving effect to the objects of the Proclamation. Sub-clause (i) of

Clause (c) reserves the power to the President, in the exercise of the functions and powers assumed to himself by virtue of Clause (a) of the

Proclamation, to act to such extent as he thinks fit through the Governor of the said State. By virtue of the powers conferred by Sub-clause (i) of

Clause (c) the order G.S.R. 56 (E) was issued. According to that order and in pursuance of Sub-clause (i) of Clause (c) of the Proclamation, the

President directed that all the functions of the Government of the State and all the powers vested in it exercisable by the Governor of that State

under the Constitution or under any law in force in that State which had been assumed by the President by virtue of Clause (a) of the said

Proclamation shall, subject to the superintendence, direction and control of the President, be exercisable also by the Governor of the said State.

Though the position of the Governor under the Proclamation is one in which he is empowered to exercise all the functions taken over by the

President, subject to the superintendence, direction and control of the President, it will be totally inappropriate to call the Governor a delegate or

an agent. The result is that the Governor acts as if the President himself acts, subject of course, to the superintendence, direction and control of the

President. If this position is clear, most of the contentions of the learned counsel for the appellant loose their force, as they are mainly based on the

basis that the Governor is a delegate and that he cannot further delegate the powers delegated to him.

The Governor by a Notification dated 1st Feb., 1976, issued in pursuance of the Proclamation, G.S.R. 55 (E) and the Order G.S.R. 56 (E)

dated the 31st Jan., 1976, issued by the President of India, appointed two officers as his Advisers, and allocated the business of the Government

among them. The Governor issued instructions regarding the transaction of the business of the Government. He directed (i) that all the files which

were required to be submitted to the Governor immediately before the said date shall be submitted to the Governor through the Adviser

concerned, and (ii) that all the files which were required to be submitted to the Ministers immediately before the said date shall be submitted to the

Adviser concerned, according to the allocation indicated in the Annexure to the Order. Another Order, G.O.Ms. No. 279, dated 1-2-1976, was

issued by the Governor, directing that the distribution of the business among the Departments, of the Secretariat shall continue to be the same as

immediately before the said date.

The contention of Mr. Venugopal learned counsel for the appellant, is that the Secretary of the State Government was exercising powers under

the Madras Business Rules framed by virtue of the powers conferred on the Governor under Article 166(2) and (3) of the Constitution of India.

Rule 23-A of the said Rules provided that the powers and functions of the State Government referred to in Clause (b) of Section 68-A of the

Motor Vehicles Act, which the State Government may exercise- and perform u/s 68-D of the Act, and the rules relating thereto, shall be exercised

and performed by the Secretary to the State Government. The submission of the learned counsel for the appellant is that the operation of Article

166(3) of the Constitution was suspended by G.S.R. 55 (E) and that therefore Rule 23-A of the Madras Business Rules which enabled the

Secretary to the Government to function is not in force, and therefore the Secretary had no power. This contention cannot be accepted for the

Secretary to the Government acts, not by virtue of the powers conferred by the Madras Business Rules which were framed under Article 166(3)

of the Constitution, but by virtue of the notification of the Governor made in G.O.Ms. No. 279, by which he directed that the distribution of the

business among the Departments of the Secretariat shall continue to be the same as Immediately before the said date. It was not necessary for the

Governor to enumerate all the rules. He could adopt the rules and, by virtue of the powers conferred on him by G.S.R. 56 (E), direct the

distribution of the business among the departments of the Secretariat. The suspension of Article 166(3) of the Constitution does not mean that all

the rules framed under Article 166(3) of the Constitution, have been abrogated. There could be no objection to those rules being adopted by the

Governor, as he has done in this case.

The contention of the learned counsel for the appellant is based mainly on the misconception that the Governor is in the position of a delegate,

which is not correct for, according to G.S.R. 55 (E) and 56 (E), the President, in exercise of his powers under Article 356(c), can make such

incidental and consequential provisions as appear to him to be necessary or desirable for giving effect to the objects of the Proclamation and, under

Sub-clause (i) of Clause (a) of the Proclamation to act to such extent as he thinks fit through the Governor of the said State. The Governor being a

person who could be equated to the President, can himself act and no question of delegation arises.

The submission that the functions of the Secretary are quasi-judicial in nature, and, as delegate, the Governor has to exercise those functions

himself is also due to a misconception. There is no delegation and the Secretary functions by virtue of the powers validly given to him by the

Governor.

Equally untenable is the contention that the Governor had created a Cabinet system by appointing two Advisers and allocating the work

between them. The appointment of the advisers and the allocation of the work between them was in exercise of the powers which have been

vested in the Governor by G.S.R. 56 (E).

We are satisfied that there is no substance in this appeal and dismiss the same.