N. Nandagopal vs State of Madras and Others

M. Anantanarayanan, C.J.—By the judgment of this Bench in Sanjeevi v. Madras State Transport Undertaking ILR (1969) Mad. 289 we

held mainly upon the reasoning and dicta of Kalyan Singh''s Case AIR 1962 S.C. 1183 that the State transport undertaking, within the meaning of

Section 68-C of the Motor Vehicles Act, was the State Government, and that the opinion to be formed under the section, must be the opinion of

the person to whom such power might have been delegated under the Rules of Business of Government, promulgated under Article 166(3) of the

Constitution. Subsequent to that judgment striking down those schemes of nationalization, for the reasons set forth in our judgment, there have

been two main developments. Firstly, in G.O. Ms. No. 2715, Public (Genl.), dated 22nd December 1967, Rules 23-A(1) and (2) of the Madras

Government Business Rules has been promulgated, and I shall be largely concerned, in this judgment, with the degree to which the schemes now

notified, by virtue of this rule, could be upheld with regard to their vires. Secondly, as will be clear from the explanatory statement appended to the

Madras Ordinance No. I of 1968, Government felt that judicial opinion was divided on the question, whether the Regional Transport Authority can

take into consideration u/s 47(1)(c) of the Act, any scheme prepared by the State transport undertaking u/s 68-C. Clauses 2 and 3 of that

Ordinance thus sought to amend Sections 47 and 58 of the Act, obliging the Regional Transport Authority thereby, to take into consideration the

publication of a scheme u/s 68-C. It was also felt that as under the existing provisions of chapter IV-A, the State transport undertaking was entitled

to obtain a permit only after the scheme had been approved by the State Government u/s 68-D, the undertaking should be now empowered to

apply for a temporary permit in respect of routes specified in the scheme published u/s 68-C itself thereby obliging the Regional Transport

Authority to grant such temporary permit for these purposes, and also to empower the State Government to delegate the powers of the State

transport undertaking to a specified authority, the Ordinance (I of 1968) was promulgated and, ultimately, it has evolved into Act XVIII of 1968.

Certain provisions of this Act are also the subject of attack in these related writ proceedings, now being heard by us as a consolidated group of

petitions.

In this judgment, I am largely confining myself to the attack on the scheme itself, as a scheme promulgated under the newly-framed Rule 23-A of

the Rules of Business of Government, by the Governor acting under Article 166(3) of the Constitution. This aspect of the arguments involves

certain questions of significance and interest, impugning on the law of the Constitution. The other aspect, namely, the attack on the scheme, with

reference to the intendment and the provisions of Madras Act XVIII of 1968, is being extensively dealt with by my learned brother (Natesan J.) in

his judgment, with whose conclusions, on the analysis, I entirely agree. As I do not desire to cover the same ground, and, in the interests of brevity,

I shall briefly notice some of those arguments towards the conclusion of this judgment, but without elaborately proceeding into the provisions

themselves, or the precedents cited at the Bar.

As is well known, Article 166(1) of the Constitution directs that

All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

Under Article 166(3)

The Governor shall make rules for the convenient transaction of the business of the Government of the State, and for the allocation among

Ministers of the said business....

The last part of Article 166(3) does not now concern us. Rule 23-A has been framed and promulgated by virtue of this power, and it is in two

sub-clauses. The text of the entire rule is as follows:

23-A. Notwithstanding anything contained in these rules.--

(1) Where any undertaking providing road transport service is carried on by the State Government with reference to clause (b) of Section 68-A of

the Motor Vehicles Act, 1939 (Central Act IV of 1939), the powers and functions which the State transport undertaking may exercise and

discharge u/s 68-C of the said Act and the rules relating thereto shall be exercised and discharged by the Secretary to the Government of Madras

in the Industries, Labour and Housing Department on behalf of the State Government and cases relating to such powers and functions of the State

transport undertaking under the said Section 68-C and the said rules need not be submitted to the Minister-in-charge.

(2) The powers and functions which the State Government may exercise and discharge u/s 68-D of the said Act and the rules relating thereto shall

be exercised and discharged by the Secretary to the Government of Madras in the Home Department on behalf of the State Government and

cases relating to such powers and functions of the State Government under the said Section 68-D and the said rules need not be submitted to the

Minister-in-charge.

It may be convenient, at this stage itself to notice the manner in which the scheme u/s 68-C has been notified, after the framing of this rule. The

printed scheme is notified as By order of the Governor, these words being in brackets, and signed.

M.G. Balasubramanian, Secretary to the Government of Madras in the Industries, Labour and Housing Department, exercising the powers of the

State transport undertaking under Rule 23-A of the Madras Government Business Rules.

It will be now convenient to formulate the attack upon this aspect, which may be termed the constitutional aspect, of the arguments before us.

Mr. M.K. Nambiyar, for the parties, concedes that, as pointed out by their Lordships of the Supreme Court in Rai Sahib Ram Jawaya Kapur and

Others Vs. The State of Punjab, our constitution has really adopted the English system of Parliamentary executive, so that the Governors are

constitutional heads of the executive, and the real executive power vests in the Council of Ministers. Again as pointed out recently by their

Lordships in Ishwarlal Girdharlal Joshi etc. Vs. State of Gujarat and Another, , all executive action of the Government of a State, however, must

be expressed to be taker in the name of the Governor. But, Mr. Nambiyar submits that this power under Article 166(3) cannot validate any

allocation of the Business of Government, not between the Ministers inter se but to a Secretary to Government, the vice of the rule being in the

words.

Cases relating to such powers and functions of the State transport undertaking under the said Section 68-C and the said rules need not be

submitted to the Minister-in-charge.

The same argument would apply to Rule 23-A(2) with regard to Section 68-D, which again renders the Secretary to the Government of Madras in

the Home Department, virtually independent of the Ministers, in spite of the ostensible delegation. According to Mr. Nambiyar, this is not merely

excessive delegation, but it is a virtual self-effacement of the Minister concerned, so that these functions truly become the autonomous power and

functions of the concerned Secretaries. There cannot be such abdication of even the power u/s 68-C, in favour of a Secretary to Government; with

respect to Section 68-D, the case is stronger, as a quasi-judicial power cannot be thus delegated. It is also clear from the subscription to the

scheme, that I have earlier set forth, that Mr. M.G. Balasubramanian, Secretary to the Government in the Industries, Labour and Housing

Department, purports to notify the scheme, by virtue of the power under Rule 23-A(l), thereby rendering his act independent of the Minister.

Certain of these proceedings before us relate to schemes published u/s 68-D, Clause (3), after the hearing of objections by the Secretary to the

Government, Home Department; the same objection, on grounds of constitutional impropriety, is pressed into service here.

Before proceeding to the precedents, relied on by Mr. Nambiyar, and the arguments and precedents of the learned Advocate-General on behalf

of the State, I may briefly refer to certain subsequent developments, in the hearing itself before us. There was, originally, a counter-affidavit filed by

Mr. M.G. Balasubramanian, Secretary to Government in the Industries, Labour and Housing Department, who had notified the scheme u/s 68-C.

In this, in paragraph 4, it is claimed that the Governor has power to make rules under Article 166(3) for allocating a statutory function of the State

Government and that it is open to the Governor of Madras to vest a statutory power of the State Government in any officer. The business rules

themselves make special provision, where cases need not be submitted to the concerned Minister, and instances are given, such as Business Rules

31(1)(a)(xliii) and the proviso to Secretariat Instruction 3(1)(a)(e). After the arguments had been partly heard, Mr. M. Karunanidhi, the Minister-

in-charge of Transport, filed a separate affidavit, in which he stated that, as Minister-in-charge of Motor Vehicles, both u/s 68-C and u/s 68-D, the

respective Secretaries of the Department of Industries, Labour and Housing, and the Home Department, were acting under Rule 23-A, carrying

out the functions of the Minister, and that, constitutionally, the decisions of these Secretaries were the Minister''s decisions. The Council of

Ministers was collectively responsible to the State Legislative Assembly, under Article 164(2) of the Constitution. This has led to a supplementary

affidavit by the Petitioner in Writ Petition No. 335 of 1968, and a further affidavit by the Petitioner in Write Petition No. 335 of 1968, and a

further affidavit by the Home Secretary, which I shall discuss later. For the time-being, we may note that there are two further objections raised: (i)

the subject Motor Vehicles Act is not withhin the portfolio of the Minister-in-charge of Transport (Mr. M. Karunanidhi), but in that of the Minister-

in-charge of Homo Affairs; hence, the statement of the Minister that the decisions of the Secretaries under Sections 68-C and 68-D of the Act are,

constitutionally, his decisions, cannot be accepted as correct; and (ii) that, even on this assumption, it would follow that one and the same Minister

is taking responsibility, both for promulgating a scheme u/s 68-C, and for the hearing of objections thereto, and a decision thereon, u/s 68-D ; this

is in violation of principles of natural justice.

We may immediately proceed to the very interesting question which arises, upon the arguments of Mr. Nambiyar, the gist of which I have

already set forth. It is not in dispute, in these cases, that the Government of Madras long ago took a policy decision in G.O. No. 2007 (Tpt.),

dated 17th June 1967, that all routes of 75 miles and above, and two other categories of routes, should be nationalized on the expiry of the existing

permits issued to private operators. As observed in Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, , the Cabinet concentrates

in itself the virtual control of both legislative and executive functions, and the Ministers act on the principle of collective responsibility. But, while the

policy is unassailable, because of the powers vested in the State under Chapter IV-A of the Act, the functions under Sections 68-C and 68-D

must be exercised by the Minister to whom the matter is allocated, under the rules of business of Government in the relative department; if he

delegates this power, it must be within the ambit of proper delegation; he cannot efface him self, and virtually constitute the Secretary as an

autonomous and absolute authority. In Hodge v. The Queen (1883) 9 App. Cas. 117, the Judicial Committee held that the maxim delegatus non

potest delegare could not apply to the facts of that case, and that an authority to entrust limited discretionary powers to subordinate agencies, was

ancillary to legislation. This did not mean that the legislature effects itself, for it retains its powers in tact and can, whenever it pleases, either abolish

the agency it has created, or take the matter directly into itself. But, in The Initiative and Referendum Act, In re (1919) A.C. 935 that Act was hold

invalid, since it would compel the submission of a proposed law to a body of voters, totally distinct from the Legislature. Hodge v. The Queen

(1883) 9 App. 117 was referred to, but it was emphasized that the proper limits of delegation cannot be exceeded. Another relevant case is

Commissioner of Police, Bombay v. Gordhandas Bhanji (1952) 65 L.W. 212 (S.C.) where it was held that the order of cancellation by the

Government, could not be misinterpreted as the order of the Commissioner, who alone had the statutory power, and that

Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer.

Mr. Nambiyar stresses this, with reference to the subscription to the scheme that I have earlier cited. That the Legislature cannot delegate its

power to make law, to some other body, and this, according to Mr. Nambiyar, would apply equally to a statutory and quasi-judicial power, was

held in Jatindra Nath Gupta v. Province of Bihar (1949) 2 M.L.J. 356 (F.C.). The dicta in Kalyan Singh''s case AIR 1962 S.C. 1183 are also

relied on, particularly the observation that the opinion u/s 68-C.

must necessarily be formed by somebody to whom, under the Rules of Business, the conduct of the business ii entrusted and that opinion, in law,

will be the opinion of the State Government.

In Bejoy Lakshmi Cotton Mills Ltd. Vs. State of West Bengal and Others, the rules of business and standing orders were referred to, in the

context of Article 166(3), and the Supreme Court did not accept the argument that the issue of a notice u/s 4 was a matter which should have been

dealt with by the Minister-in-charge himself, standing order No. 5 authorised officers at subordinate levels to deal with the matter. But it is

noteworthy, according to learned Counsel, that the issue of the delegation itself being ultra s left open. In Godavari Shamrao Parulekar Vs. State of

Maharashtra and Others, the order under challenge was upheld, because, under the business rules, the Chief Minister was in charge, at the relevant

time, both of the General Administration Department, and the Home Department (Special). Upon the matter of bias, because a single Minister is

claiming responsibility for decisions, both u/s 68-C and u/s 68-D, the observations in Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh

State Road Transport Corporation and Another, are relied on.

It is now time to scrutinize the main line of reasoning upon which the arguments of Mr. Nambiyar have been founded, and are sought to be

repelled by the learned Advocate-General. Briefly stated, the contention of the learned Advocate-General is that the very concept of delegation is

here irrelevant, as what Rule 23-A embodies is not any act of delegation of the powers and functions of the concerned Minister to Secretaries

empowered to act autonomously, but merely a rule under Article 166(3), for the more convenient transaction of the business of the Government.

The learned Advocate-General would concede that, if the first affidavit of Mr. Balasubramanian should be interpreted to imply that the Governor

can take a power or function of a Minister allocate it, not to another Minister or the Council of Ministers, but to some third party, like the

Secretary to the Government, this is erroneous and misleading. If Rule 23-A of the Rule 3 of business is carefully scrutinised, it will at once be

clear, that there is no revolutionary departure either from the purport and tenor of the other rules of business, or from the basic principle of

Ministerial responsibility for all acts of the executive at all subordinate levels. I may here conveniently note that there are no standing orders

produced before us, under Rule 21 of the Business Rules. Actually Rule 23-A purports only to effect what could have been equally achieved by a

ministerial standing order. Rule 7 of the rules emphasises the collective responsibility of the Council of Ministers. Rule 11 stresses that all orders or

instruments must be expressed to be made or executed, in the name of the Governor Rule 21 provides that

Except as otherwise provided by any other rule, cases shall be ordinarily disposed of by or under the authority of the M nister in-charge.

Rule 22 itself empowers the Ministers to arrange with the Secretary, which matters or classes of matters should be brought to his personal notice.

Thus, it is amply evident that, in the very context of the business of Government, in a parliamentary democracy, such as ours, it is intrinsic that many

powers and functions shall be exercised or carried out at many subordinate levels, bat that the overall responsibility of the Minister remains. The

Minister may send for any paper, at any time, not merely from his departments, but even from departments under another Minister [Rule 27(3)].

The non-obstante clause, with which Rule 23-A(1) commence, does not imply any effacement of the Minister, or abdication of his power. Both

under Rule 23-A(1) and under Rule 23-A(2), the control and continued responsibility of the Minister remain, which is what is, emphasised in Mr.

M. Karunanidhi''s affidavit. It is true that each concerned Secretary head not submit the case to the Minister-in-charge, bat that is only a rule of

convenience, and no delimitation of the Minister''s authority, power or responsibility. In other words, what we have here is another instance of an

inevitable characteristic of democratic Government; ministerial responsibility and authority are in plenary effect, bat actual functions may be

exercised by subordinate officials, without to the attention of the Minister, or even without his knowledge.

The learned Advocate-General has relied on a plethora of precedents and expositions of the law in standard treatises, in support of his

argument. The correctness of this argument is overwhelmingly established in these authorities, I am, therefore, constrained to make a selection of

those precedents, which appear to me that to be most relevant and important; some of which are English decisions, and some of which are

decisions of the Judicial Committee or the Supreme Court. Concerning the text-books, I shall content myself with a bare reference to a very few

leading passages.

In King Emperor v. Sibnath Banerji (1945) F.C.R. 195 222 (P.C.) the Judicial Committee held that such matters as those which fell to be

dealt with by the Governor under Rule 26, could be dealt with by him in the normal manner in which the executive business of the Provincial

Government was carried on. The suggestion could not be accepted that the Home Minister was not an officer subordinate to the Governor, within

the moaning of Section 49(1) of the Government of India Act, 1935. The relationship between the Governor and the Ministers, headed by the

Chief Minister, the subordinate officials and the business rules, has also boon elucidated in Gullapalli Nageswara Rao and Others Vs. Andhra

Pradesh State Road Transport Corporation and Another, Also see Bachhittar Singh Vs. The State of Punjab, With reference to the scope of the

standing orders, the learned Advocate-General has also cited B.L. Cotton Mills v. State of W.B. AIR 1967 S.C. 1115. In Ishwarlal Girdharlal

Joshi etc. Vs. State of Gujarat and Another, the argument was repelled that the authority to confer a function or power on the Secretary, must only

be in writing, or by standing orders. The other relevant aspects of the same main argument will be found discussed in Green Bus (Raj.) Ltd. v.

State A.I.R 1968 Raj. 169 and Prem Chand v. State of M.P. (1943) 2 All E.R. 560, which stresses that the business of a State Government,

including its statutory and quasi-judicial functions, may be carried on by subordinate officers, as authorised by the Ministers. In Halsbury''s Laws

England (third edition), volume I, page 170, the constitutional law is stated in the form:

Where functions entrusted to a Minister are performed by an official employed in the Minister''s Department, there is in law no delegation, because

constitutionally the act or decision of the official is that of the Minister.

Before proceeding to the treatises, I must notice three English cases, which have a direct bearing upon the principle, now under discussion.

Perhaps the most important of them is Carltona Ltd. v. Comrs. of Works (1943) 2 All E.R. 560. The case concerned the validity of a direction

purported to be given under a Regulation, on behalf of a competent authority, The true nature of the Governmental administration, in relation to

ministerial responsibility, was enunciated by Lord Greene M.R., in a memorable passage, as follows at page 563:

In the administration of Government in this country the functions which are given to Ministers and constitutionally properly given to Ministers

because they are constitutionally responsible are functions so multifarious that no Minister could ever personally attend to them. To take the

example of the present case no doubt there have been thousands of requisitions in this country by individual Ministers. It cannot be supposed that

the regulation meant that, in each case, the Minister in person should direct his mind to the matter. The duties imposed upon Ministers and the

powers given to Ministers are normally exercised under the authority of the Ministers by responsible officials of the department. Public business

could not be carried on if that were not the case. Constitutionally, the decision of such an official, is of course, the decision of the Minister. The

Minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an

important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the Minister would

have to answer that in Parliament. The whole system of departmental organization and administration is based on the view that Ministers, being

responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where

complaint must be made against them. The next case is an interesting one, namely, Lewisham Borough Council v. Roberts (1949) 1 All E.R. 815,

with regard to the point that the Town Clerk was not authorised to requisition a house, because he had no authority from the Minister. Denning

L.J., observed as follows at page 824:

The first point taken here was that the town clerk was not authorised to requisition this house become his only authority was derived from a letter

from an official in the Ministry of Health who could point to no authority from the Minister himself. I take it to be quite plain that when a Minister is

entrusted with the administrative, as distinct from legislative, functions he is entitled to act by any authorised official of his department. The Minister

is not bound to give his mind to the matter personally. That is implicit in the modern machinery of Government.

The actual misconception upon which arguments of that character apparently arose, though they are really fallacious, was clearly expressed by

Jenkins J., in the same decision, in the following words at page 828:

I think this contention is based on a misconception of the relationship between a Minister and the official in his department. A Minister must

perforce, from the necessity of the case, act through his departmental officials, and where, as in the Defence Regulations now under consideration,

functions are expressed to be committed to a Minister, those functions must as a matter of necessary implication be exercisable by the Minister

either personally or through his depart-mental officials, and acts done in exercise of those functions are equally acts of the Minister, whether they

are done by him personally, or through his departmental officials, as in practice except in matters of the very first importance they almost invariably

would be done. No question of agency or delegation as between the Minister and Mr. O. Gara seem to me to arise at all.

In the last case, R. v. Skinner (1968) 3 All E.R. 124 the earlier decisions were affirmed and followed, but the judgment is of great interest, because

of a passage set forth verbatim from the evidence of Mr. Critchley, with regard to the authority claimed by him for approval of a breath test device,

as the approval of the Secretary of State. The entire passage is of great interest and runs as follows at page 126:

Q.--Mr. Critchley, was this authority to approve on behalf of the Secretary of State delegated to you personally by the Minister? A.--Yes. Q.--

Orally?

A.--Not orally. Q.--Or by letter or a memorandum?

A.--It was in the exercise of the duties of my public office which I held. Q.--I appreciate that. Did he say, Mr. Critchley, will you look after this for

me'' or something to that effect? A.--No; the Home Office does not work in that sort of way. Q.--How did it come about that you were

authorised? How did it come about that you exercised your authority.

A.--This was part of the Home Office administration with which I was then concerned.

These decisions make it clear that the idea of a delegation itself is misconceived, in the context of this rule of business (Rule 23-A). This is only

a convenient made for the transaction of business by the Minister concerned. The administration must abound with such rules and instructions, for,

otherwise, the business of Government cannot be carried on ; if such devices are to be frustrated, on the criticism of excessive delegation, it would

necessarily imply that the Minister must personally attend to the notifications of every scheme, to the hearing of objections, and to decisions

thereon; any such requirement would make the administration in a parliamentary democracy virtually impossible, because of the volume of the

work which this will imply. The maxim delegatus non potest delegare has no application here. This has been stressed in a very recent decision of

the Supreme Court, namely, Union of India (UOI) and Another Vs. P.K. Roy and Others, in these words:

If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it

has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree, there is

in the eye of law no ""delegation"" at all and the maxim ""delegatus non potest delegare"" does not apply.

The learned Advocate-General has made available to us relevant passages from the following treatises:

(1) Administrative law by Wade (1965 edition)--page 52.

(2) Judicial Review, by Smith--pages 180 and 181

(3) Constitutional Law, by Wade and Phillips (seventh edition), pages 87, 617, 623, 636 and 650.

(4) Cases in Constitution Law., by Keir and Lawson (1967 edition), page 490.

(5) Administrative Law, by J.F. Garner (second edition), pages 30 and 75.

(6) The Queen''s Government, by Sir Ivor Jennings, pages 108 to 113, 121 and 122 to 124.

(7) The Cabinet Government, by Sir Ivor Jennings, pages 108, 109 and 111.

(8) The British Constitution, by Sir Ivor Jennings, pages 143 to 149.

(9) Government and Parliament, by Herbert Morrison, page 323.

(10) Constitutional and Administrative Law, by Hood Phillips, page 629.

(11) Principles of Administrative Law, by Jag Griffith and H. Street (1963 edition), page 68.

(12) Joint Committee on Indian Constitutional Reform (session 1933-34), volume I, page 14.

I must content myself with one or two brief citations from this extensive literature.

It is observed in the work by Wade and Phillips [Constitutional Law, (seventh edition)], at page 650 that

the rule against unauthorized delegation of powers might seem to require all powers vested in a Minister to be exercised by him personally. That

the Courts have accepted the exigencies of departmental administration was shown in Local Government Board v. Arlidge (1950) A.O. 120 and it

is clear that powers and duties conferred on a Minister may properly be exercised by officials in his department....

Carltona''s Case (1943) 2 All. E.R. 560 has been referred to by Keir and Lawson. Sir Ivor Jennings emphasises that Ministers are not

professional administrators and that entrustment of business to subordinate levels is inevitable, though ministerial responsibility remains in tact.

Some authorities, such as Hood Phillips (page 629), had employed the word delegation, but, clearly it is misleading in the strictly juristic sense. It is

not merely the control of the Minister that remains in tact, but, so to speak, the official functions as an extended limb, of the source of power and

responsibility; there is no parting with that power in the true sense, even where the subordinate official is permitted to function in himself, and not to

submit the case to the Minister at all.

On this aspect, therefore, I have no doubt that Rule 23-A does not embody any different principle from that already expressed in other rules of

business, and does not detract by a jot or title from the pervasive theory and practice of ministerial responsibility. If in the first affidavit of Mr.

Balasubramanian, some language has been employed, which is misleading, as Rule 23-A certainly does not allocate any power or function as

between the Minister and some third party, like a Secretary, that passage must be ignored. The true position is that confirmed by Mr. Karunanidhi

in his affidavit.

Arising out of the supplementary affidavits of both parties, two or three other minor questions remain. Firstly, can a Transport Minister exercise

these powers at all, as part of the business alotted to him, when the subject Motor Vehicles Act is not within his assignment under the rules of

business? Secondly, can there be interference, on the ground of injury or possible injury, resulting from infringement of principles of natural jus. ice,

because it is the same Minister who is exercising powers and functions both u/s 68-C and u/s 68-D?

With regard to the first point, the subsequent affidavit now filed by Mr. Venkatesan, Secretary in the Home Department, and the records made

available to us, make the matter clear beyond doubt. Apparently, �very item in the list of subjects, which is found printed in the Madras

Government Business Rules, is not allotted as between the Ministers, in a total and exhaustive manner. On the contrary, G.O. Ms. No. 491, Public

(Special), dated 6th March 1967, shows that the broad heads of business have been allotted, and, apparently the Minister whose portfolio

includes Transport and Nationalized Transport has throughout been dealing with all amendments to the Motor Vehicles Act, as part of the subject,

Transport. The point originally taken by Mr. Nambiyar, that it must be Chief Minister, as the Minister-in-charge of Home Department, who has

charge of this item Motor Vehicles Act seems to be an erroneous impression or misconception. The Home Department, per se, is not the subject

of allocation to any Minister, and the Chief Minister is in charge only of certain items of business, which could be included in the Home

Department. It is clear that a Minister could include, in his portfolio, items of business transacted in different departments, and that more than one

Secretary could be subordinate to a Minister. It is contended that there is no other Minister of Government who could conceivably handle the

subject, or has handled them in the past. The other argument has to be examined a little more, in detail, as it involves the application of the principle

that bias must be excluded, even if it is an apparent bias, since justice must both be done, and must appear to be done.

On this aspect, Mr. Nambiyar, relieved heavily on certain observations in Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh State

Road Transport Corporation and Another, . Their Lordships quoted Lord Hewakt C.J., in Rex v. Sussex Justices (1924) 1 K.B. 256 for the

dictum that is of fundamental importance that justice should not only be done, but should also appear to be done. A person, interested in one party

or another, should not, even formally, take part in the proceedings. But, clearly in this sense, Sections 68-C and 68-D, in their interrelation

themselves, involve a difficulty or dilemma as was recognised in Kalyan Singh''s Case A.I.R 1962 S.C. 1183. In the business of a modern

Government, it may be quite impossible to avoid contexts in which the Government, in one aspect, initiates a scheme or proposal, affecting private

rights, and in another aspect, judges as between the proposal so initiated and the rights which are agitated. That is why in Kalyan Singh''s Case

A.I.R 1962 S.C. 1183 the solution suggested was that one agency could formulate a scheme u/s 68-C, and a different agency could hear and

decide on the objections, even if it is inevitable that both are agencies of the same Government. As pointed out in Capital Multi-purpose Co-

operative Society Bhopal and Others Vs. The State of M.P. and Others, , the State Government is not a natural person, and, therefore, it is some

natural person who must actually exercise the function or power. Also see the observations of the Supreme Court in H.C. Narayanappa and

Others Vs. The State of Mysore and Others, and Dosa Satyanarayanamurty etc. Vs. The Andhra Pradesh State Road Transport Corporation, In

the present matter, it is the Secretary in the Industry, Labour and Housing Department, who is entrusted with the function u/s 68-C of the Act. It is

the Secretary in the Home Department who hears objections and takes decision u/s 68-D. Though he is also a limb of the same Government, it is

perfectly possible for him to be objective and detached, and the mere fact that both Secretaries are part of the Government, cannot establish a

bias. The fact that the overall responsibility is that of the same Minister, can really be no objection; for that matter, it is not even the Minister, but

the Council of Ministers, which must be collectively responsible to the Legislature, in theory, for every such act. The argument of offending the

principles of natural justice, or of an inherent bias, has no foundation.

I must now proceed, very briefly, to notice the main lines of the arguments submitted by Mr. V.K. Thiruvenkatachari, with regard to the Act

(Act XVIII of 1968) itself. Mr. Chari contends, on the authority of the dicta in Capital Multi-purpose Co-operative Society Bhopal and Others

Vs. The State of M.P. and Others, that the true criteria are that the scheme must provide an efficient, adequate, economical and properly

coordinated road transport service, and

if it is not of that type, the State Government or the authority appointed to hear objections would reject it.

It is strenuously contended that, in the present instances, the schemes are highly objectionable from this point of view. What has happened is that

instead of a scheme, in pursuance of the policy embodied in the Government Order already set forth, which would properly co-ordinate the routes

to be nationalised, and which would itself be an integrated scheme, individual routes concerned, relevant to which the permits are about to expire,

have merely been taken up for appropriation of the service by the State transport undertaking. The maxima and minima set forth in the columns of

the scheme, show that it is only as and when the permit for each route expires, that the route will be dealt with. There is no co-ordination and there

is no integration, nor due regard to the criteria of the Act. Further, the entire Act (Act XVIII of 1968) offends Article 14 of the Constitution,

because the very intendment of chapter IV-A of the Motor Vehicles Act is to introduce a uniform law throughout the country, and this object

would be frustrated, if the Madras Act brings amendments into effect which operate unequally to affect the interests of private permit-holders; the

dicta in Deep Chand v. State of Uttar Pradesh ILR (1959) All 293 (S.C.) are relied on. I agree with my learned brother (NATESAN J.) in

holding that we have no infringement of Article 14 of the Constitution at all, and that, as stressed by the learned Advocate-General (vide Basu''s

Constitution of India, volume I, page 451) laws made by different Legislatures cannot be taken together for purposes of comparison. We do not

here have a geographical classification which is what Mr. Chari would urge. As observed by their Lordships in The State of Madhya Pradesh Vs.

G.C. Mandawar, . Article 14 of the Constitution does not authorize the striking down of a law of one State on the ground that it is in contrast with

a law of another State. Also see Ram Chandra Palai and Others Vs. The State of Orissa and Others, The classification here is that of the private

stage-carriage operators of the Madras State, in relation to the State transport undertaking, which is a State organ for nationalization. As between

these affected operators, there is no discrimination whatever, because the provisions of this Act empower the undertaking to apply for temporary

permits, even in the context of a promulgated scheme, or require the Regional Transport Authority to have regard to the scheme published u/s 68-

C, when considering renewals of permits. Upon other related aspects of this matter, such as the meaning of the expression have regard, and the

true import of the non-obstante clause, to be found in Section 3 of Act XVIII of 1968, introducing Sub-section (2-A) to Section 58, I am in entire

agreement with my learned brother (Natesan J.), on the basis of the authorities cited by the learned Advocate-General which I need not dilate on

here. In brief, I totally, agree with my learned brother concerning the manner in which these few provisions of this Act should be interpreted and

applied by the quasi-judicial authorities, in implementing the Act. The individual writ proceedings, which require separate orders, will now be

posted before us for such orders, in the light of our judgments.

Before parting with the cases, on behalf of my learned brother and myself, we desire to express our obligation to the learned Advocate-

General for his arguments, and his painstaking, research into the precedents and standard treatises, and learned Counsel, Mr. M.K. Nambiyar and

Mr. V.K. Thiruvenkatachari, for their arguments, which have greatly assisted us, in the disposals of these cases.

Natesan J.-- This batch of writ petitions under Article 226 of the Constitution has been filed by private stage carriage operators who are

aggrieved by proceedings taken by the State Government pursuant to its policy of nationalization of passenger bus transport.

We had occasion to refer and consider this nationalisation policy in our judgment Sanjeevi v. Madras State Transport Undertaking ILR (1969)

Mad. 289. The State Government laid down its policy in G.O. No. 2007 (Tpt.), dated 17th June 1967, according to which, (i) all routes of 75

miles and above, (ii) all routes radiating or terminating in Madras City irrespective of length and (iii) all routes in the Kanya kumari district including

those which are radiating from or terminating in that district are to be nationalised as and when the permits of the private operators expire. In that

batch of cases, the validity of a draft scheme of nationalisation, prepared and published u/s 68-C of the Motor Vehicles Act (Central Act IV of

1939) was questioned. The impugned scheme, purported to have been prepared by the State transport undertaking, was published under the

subscription of the Director of the Madras State Transport Department. As the State transport undertaking is run by the State Government, finding

that the State Government had not formed the requisite opinion u/s 68-C of the Act, we struck down the notification. Subsequent to the aforesaid

decision, the Governor of Madras, in exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution, introduced Rule

23-A by G.O. Ms. No. 2715, Public, dated 22nd December 1967 in the Madras Government Business Rules. Under Sub-clause (1) of the Rule

it is provided that the powers and functions which the State transport undertaking (hereafter referred to as STU), may exercise and discharge u/s

68-C of the Act, shall be exercised and discharged by the Secretary to the Government of Madras in the Industries, Labour and Housing

Departments on behalf of the State Government. The rule expressly provides that cases relating to such powers and function of the STU u/s 68-C

need not be submitted to the Minister-in charge. Under Sub-clause (2) of the rule, the powers and functions of the State Government u/s 68-D of

the Act and the rules relating thereto, are directed to be exercised and discharged by the Secretary to the Government of Madras in the Home

Department on behalf of the State Government. There is a statutory rule already to similar effect, Rule 294-D in the rules formed under the

provisions of the Motor Vehicles Act. Under this sub-rule also, cases relating to such powers and functions of the State Government u/s 68-D

need not be submitted to the Minister-in-charge. The impugned schemes of nationalisation have been promulgated and published in exercise of the

powers and functions under the new Business Rule 23-A.

It will be convenient to have the facts in some of the petitions before us, to appreciate the context in which they came to be filed. The Petitioner

in Writ Petition No. 335 of 1968, in which Mr. M.K. Nambiyar addressed arguments, has been operating five stage carriages on the routes

Madras to Palavakkam and Madras to Periapalayam and two stage carriages between Madras to Ami and Madras to Mukkarambakam. The

permit to ply buses on the route Madras to Mukkarambakam, a distance of 30 miles, was due to expire on 9th February 1968 and so, the

Petitioner, in due time, applied for renewal of the permit. The renewal was duly notified on 15th December 1967. None of the operators on the

route objected to the grant of renewal. But the STU by its director filed its objection to the grant of renewal on the ground that there was a

proposal to nationalize the route. The scheme for nationalisation of the route was published u/s 68-C on 31st December 1967, G.O. Ms. No.

4003 (Trpt.), Industries, Labour and Housing, dated 30th December 1967. It purports to be a notification by the Government by order of the

Governor and the subscription is of M.G. Balasubramanian.

Secretary to the Government of Madras in the Industries, Labour and Housing Department, exercising the powers of STU under Rule 23-A of the

Madras Government Business Rules.

In Writ Petition No. 1843 of 1968, in which Mr. V.K. Thiruvenkatachari, addressed argument challenging inter alia the validity of Madras

Ordinance No. I of 1968 and Act XVIII of 1968 which replaced it, legislation relating to nationalisation schemes and intended to facilitate

nationalisation, the Petitioner was plying one bus on the route Salem to Kallakurichi, a distance of 60 miles on the main route. He was running

another bus on the route Salem to Thammampatti, a distance of 52 miles on the main road. The permits of the buses were valid up to 1st January

1968. Application for renewal of the permits was made on 10th September 1967 and the renewal was notified u/s 57(3) of the Act on 18th

October 1967. A third party objected to the renewal on the ground that the routes exceed 75 miles, though the STU did not object. Temporary

permits were issued to the operator from 1st January 1968 to 30th April 1968. Though no draft scheme even was published, on 30th April 1968,

the Regional Transport Authority, Salem, refused to renew the permits on the ground of the declared intention of the Government to nationalize all

bus routes over 75 miles. Writ Petition No. 1843 of 1968 had been filed for consideration of the renewal application, before the orders were

passed thereon. Writ Petition No. 2253 of 1968 was subsequently preferred for quashing the order of the Regional Transport Authority refusing

renewal of the permits. The draft scheme for the route Salem to Kallakurichi was published on 18th June 1968 and the one for the route Salem to

Thammampatu, on 19th June 11:68. Writ Petition Nos. 2873 and 2874 of 1968 have been filed for writs of prohibition restraining the State

Government from proceeding further with the schemes.

Mr. Nambiyar''s attack on the draft scheme u/s 68-C is rested on the admitted fact that the requisite opinion under the section has been

formed only by the Secretary to the Government of Madras in the Industries, Labour and Housing Department exercising the powers of STU

under Rule 23-A of the Madras Government Business Kules, and not by the State Government which runs the STU. This, it is submitted, runs

counter to the requirement of Section 68-C, as laid down by this Court on the former occasion in Writ Petition Nos. 2303 of 1967, 3063 of 1967,

etc. that where the State Government carries on the STU it is the State Government that should form the opinion. Even so, where it is the State

Government that has to hear objections and approve a scheme u/s 68-D, this function is allotted to another Secretary. It is submitted that the

business Rule 23-A which vests in Secretaries'' functions of the Government, violates Article 166(3) which provides for allotment of the business of

the Government only among Ministers. With reference to Section 68-D it is further submitted that it is a quasi-judicial function and so cannot be

delegated. Such delegation involves it is said exercise of legislative power. The prevision in the rule that cases dealt with u/s 68-C and 68-D by the

respective Secretaries need not be submitted to the Minister-in-charge, it is pointed out, shows that the State Government has denuded itself of the

authority vested in it under law and left it to departmental heads without any control and supervision even over the matter. It is said that ministerial

responsibility has been shelved in respect of matters which seriously affect a large number of persons. The passage in Cooley''s Constitutional

Limitations, eighth edition volume I, at page 227, quoted with approval by the Federal Court in Jatindranath Gupta v. Province of Bihar (1949) 2

M.L.J. 356 (F.C.), that the authority must remain where it is located and the power to which the prerogative has been entrusted cannot relieve

itself from the responsibility by choosing other organs upon which it shall be devolved, is referred to. Observations of the Supreme Court in

Commissioner of Police, Bombay v. Gordhandas Bhanji (1952) 65 L.W. 212 (S.C.) are relied upon.

There is no question that the formation of opinion u/s 68-C is the function of the Government in this case, as it runs STU. Equally, by the

explicit provision in that regard in Section 68-D, hearing of objections to the draft scheme has to be by the State Government, and, it is the State

Government that, after considering the objections and giving an opportunity to the objector or his representatives and the representatives of STU

to be heard in the matter, if they so desire, approve or modify the scheme and give it a finality. But how does the State which is not a natural

person conduct its business? How does it form an opinion? How does it hear objections and make decisions? Perforce it has to be by some

natural person. When the reference is to the State Government in a State, where the context permits, the reference is to the Governor--Article 367

of the Constitution read with Section 3(16) of the General Clauses Act. The Constitution provides the manner and method in which the

Government could function. Article 154 vests the executive power of the State in the Governor and it has to be exercised by him either directly or

through officers subordinate to him in accordance with the Constitution. Article 154(2) provides that such vesting does not prevent Parliament or

the Legislature of the State from conferring by law functions on any authority subordinate to the Governor. In this case, the functions in question

admittedly have not been conferred on any authority by legislation and the functions have, therefore, to be exercised by the Governor either directly

or through officers subordinate to him. Under Article 163(1), the Governor in exercise of his functions, except in so far as he is by or under the

Constitution required to exercise his functions or any of them in his discretion, is aided and advised by a Council of Ministers with the Chief

Minister at the head. Under Article 166(1), all executive action of the Government of a State shall be expressed to be taken in the name of the

Governor. The State Government conducts business and carry on its duties according to business rules made under Article 166(3). Article 166(3)

runs thus:

The Governor shall make rules for the more convenient transactions of the business of the Government of the State, and for the allocation among

Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his

discretion.

The Madras Government Business Rules and Secretariat Instructions have been made available to us. Rule 4, dealing with allocation and disposal

of business, provides that the business of the Government shall be transacted in the department specified in the first schedule, and shall be classified

and distributed between those departments as laid down therein. Rule 5 provides that the Governor shall, on the advice of the Chief Minister, allot

the business of the Government among the Ministers by assigning one or more departments to the charge of a Minister, provided that nothing in the

rule shall prevent the assigning of one department to the charge of more than one Minister. Under Rule 6, each department of the Secretariat shall

consist of a Secretary to the Government, who shall be the official head of that department, and of such other officers and servants subordinate to

him as the State Government may determine. Under Rule 7, the Council of Ministers, constituted under Article 163(1), is held collectively

responsible for all executive orders issued in the name of the Governor in accordance with the rules, whether such orders are authorized by an

individual Minister on a matter appertaining to his portfolio or as the result of discussion at a meeting of the Council or otherwise. Under Rule 9,

without prejudice to the provision of Rule 7. the Minister-in-charge of a department shall he primarily responsible for the disposal of the business

appertaining to that department. Coming to departmental disposal of business, under Rule 21, except as otherwise provided by any other rule,

cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge who may, by means of standing orders, give such

directions as he thinks fit for the disposal of cases in the department. Copies of such standing orders shall be sent to the Governor and the Chief

Minister. Rule 22 provides that each Minister shall, by means of standing orders arrange with the Secretary of the department what matters or

classes of matters are to be brought to his personal notice. Copies of such standing orders shall be sent to the Governor and the Chief Minister.

Rule 23 provides:

Except as otherwise provided herein, eases shall be submitted by the Secretary in the department to which the case belongs to the Minister in

charge:

Provided that where the ease relates to a matter in which the Minister concerned has a personal interest, it shall he submitted to the Chief Minister

who may direct that the case be circulated to any one or more of the other Ministers. Then comes the rule in question by G.O. No. 2715, Public

General, dated 22nd December 1967, Rule 23-A-It starts with a non-obstante clause and runs:

Not withstanding anything contained in these rides.-

(1) Where any undertaking providing road Transport services is carried on by the State Government with reference to clause (b) of Section 68-A

of the Motor Vehicles Act, 1939 (Central Act IV of 1939), the powers and functions which the State transport undertaking may exercise and

discharge u/s 68-C of the said Act and the rules relating thereto shall be exercised and discharged by the Secretary to the Government of Madras

in the Industries Labour and Housing Department on behalf of the State Government and cases relating to such powers and functions of the State

Transport Undertaking under the said Section 68-C and the said rules need not be submitted to the Minister in charge.

(2) The powers and functions which the State Government may exercise and discharge u/s 68-D of the said Act and the rules relating thereto shall

be exercised and discharged by the Secretary to the Government of Madras in the Home Department on behalf of the State Government and

cases relating to such powers and functions of tho State Government under the said Section 68-D and the said rules need not be submitted to the

Minister in charge.

Rule 24 provides:

As soon as possible after a week is over the Secretary shall submit to all Ministers a statement showing particulars of cases other than routine

cases, disposed of in the department by the Minister and the Secretary respectively, during the week distinguishing those disposed of after

discussing at meetings of the Council. A copy of the said statement shall be simultaneously submitted also to the Governor. Rule 54 provides that

rules made, to such extent as may be necessary, be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister.

The Secretarial Instructions issued by the Governor under Rule 54, indicate in what cases circulation of files to the Minister-in-charge is mandatory

and in what cases it is at the discretion of the Secretary. It is provided that it shall b� open to the Minister in charge of a department to direct that

any case in his department shall be submitted to him for orders.

Now, Rule 21 provides for departmental disposal of business under the authority of the Minister-in-charge and Rule 22 enables the Minister,

by means of standing orders, to arrange with the Secretary of the department what matters or classes of matters are to be brought to his personal

notice. That certainly entitles the Minister to give directions that the matter need not be submitted to him. But, clearly, he has power at any time, to

call for the necessary papers and deal with them. Departmental disposal of business in terms of rules framed under Article 166 is not, strictly

speaking, delegation as pointed out by the Judicial Committee in King Emperor v. Sibnath Banerji (1945) F.C.R. 195 (P.C.).

All action is taken in the name of Governor and whether the action is of an individual Minister or of other subordinates, the responsibility is of the

Council of Ministers--Article 164(2) of the Constitution and Rule 7 of the Business Rules. It is stated by the Advocate-General that no standing

orders as such have been made. Manifestly, the Minister-in-charge could, by a standing order, give directions to the Secretary in the department

for disposal of the ease in the department. He may direct the Secretary not to bring a matter to his personal notice, though at any time he may call

for the papers. He may instruct a Secretary to bring the matter to his personal notice at the final stage and take his approval. The responsibility for

the disposal in his department is squarely on him whether he informs himself of the disposals or not. Instead of standing orders, we find here a

Business Rule. We fail to see what difference this could make.

We find from the affidavit filed by Thiru M. Karunanidhi in these proceedings as Minister-in-charge that it was at his instance Rule 23-A was

framed, having regard to the number of routes that may have to be nationalised and the volume of work involved. A Minister does not shed his

responsibility by leaving the matter to the Secretary in the department for disposal. The essence of Parliamentary democracy is ministerial

responsibility. The non-obstante clause to the rule on which much reliance has been placed for the Petitioners, in my view, is, in its context,

innocuous. It is a departmental procedural rule. That does not take away ministerial responsibility for action under the rule. It only means that other

rules shall not be an impediment to the operation of the rule. Clause (2) of Rule 23-A relates to a quasi-judicial function and the provision that

papers need not be submitted to the Minister is quite in keeping with the function. The Minister-in-charge who is responsible for the draft scheme

u/s 68-O would, in the normal course, with the rule as it stands, have nothing to do with the approval of the scheme. A dichotomy at the crucial

decision stage is made. Exercise of functions through subordinates and making of business rules in that regard are constitutionally provided for. I

fail to see how against such provisions it could be contended that Rule 23-A is ultra vires of Article 166(3) or action taken therein held invalid. The

contention that by the rule the business has been allotted to a Secretary, when constitutionally it should be allotted to a Minister, ignores that there

is a Minister-in-charge of the matter and the very rule refers to the Minister-in-charge. Article 166(3) contemplates two things--(i) allocation of

business among Ministers and (ii) rules to the more convenient transaction of business. A rule for departmental transaction of business at the

instance of a Minister duly made by the Governor under Article 166(3) is not allotment of the business itself to the department.

In Kalyan Singh v. State of V.P. AIR 1962 S.C. 1183 objections to the draft scheme were heard by the Joint Secretary, Judicial Department,

who approved the scheme with some modification. The scheme of nationalization was opposed on the ground that, instead of the State transport

undertaking, the State Government initiated he scheme. Holding that the opinion u/s 68-C must be by the State Government, it is observed:

The opinion must necessarily be formed by somebody to whom, under the rules of business the conduct of the business is entrusted and that

opinion in law will be the opinion of the State Government. It is stated in the counter affidavit that all the concerned officials in the Department of

Transport considered the draft scheme and the said scheme was finally approved by the Secretary of the Transport Department before the

notification was issued. It is not denied that the Secretary of the said Department has power under the rules of business to act for the State

Government in that behalf. We, therefore, hold that in the present case the opinion was formed by the State Transport Undertaking within the

meaning of Section 68-C of the Act, and that there was nothing illegal in the manner of initiation of the said scheme.

These observations of the Supreme Court directly apply to the facts of the present case. Here, a Secretary duly authorised by the business rules

ormed the necessary opinion and published the scheme. In Ishwarlal Girdharlal Joshi etc. Vs. State of Gujarat and Another, , a case under the

Land Acquisition Act of 1894, an objection was raised that the necessary opinion before action is taken u/s 17(1) of the Act must be formed by

the Government, and that this function could not entirely be delegated to the Secretaries. After referring to the rules of business regulating

Government business and how they operated in the particular case, it was observed:

In our case the Secretaries concerned were given the jurisdiction to take action on behalf of Government and satisfied themselves about the need

for acquisition u/s 6, the urgency of the matter and the existence of waste and arable lands for the application of Sub-sections (1) and (4) of

Sections 17. In view of the Rules of Business and the Instructions, their determination became the determination of Government and no exception

could be taken.

Sibnath Banerji''s case (1945) F.C.R. 195 (P.C.) is again a case in point. Section 49 of the Government of India Act, 1935, provided that the

executive authority of a Province shall be exercised on behalf of His Majesty by the Governor either directly or through officers subordinate to him,

a provision which now appears in Article 154 of the Constitution. Section 59(3) of the Government of India Act, 1935 contained a provision for

making rules of business by the Governor corresponding to Article 166(3) of the Constitution. With reference to the detention orders under

challenge, the alleged satisfaction on which the Government relied, was that of the Secretary to the Government. While in some of the cases the

Judicial Committee held that the materials did not show that the Secretary himself had been satisfied by applying his mind to the facts and set aside

the detention orders on the basis that there was no satisfaction of the Governor, in other cases they took the view that where the Secretary himself

had been satisfied his satisfaction would amount to the satisfaction of the Governor. It is a proper inference from the decision of the Judicial

Committee that formation of the requisite opinion can be entrusted by the Minister in charge to whom the subject has been allotted by the

Governor to a Secretary, provided the entrustment is in pursuance of authority given under the rules of business. No doubt, in Bejoy Lakshmi

Cotton Mills Ltd. Vs. State of West Bengal and Others, , the question was left open. The case was under the West Bengal Development and

Planning Act. The question raised was whether the issue of notice u/s 4 of the Act and satisfaction to be arrived at that land is required or likely to

be required for public purpose are matters that have to be dealt with by the Minister-in-charge himself. The proceedings under challenge in that

case had not received the attention of the Minister concerned, but were dealt with either by the Assistant Secretary or the Deputy Secretary. The

question actually considered by the Supreme Court was, under what standing order matters u/s 4 fell, whether they fell under the standing order

which required them to be dealt with by the Minister himself. There was no contention in that case that, even if authorised by rules of business, a

Minister cannot legally entrust the function by appropriate standing orders to a departmental Secretary. The Supreme Court held, on the

interpretation of the standing orders in the case:

Under Standing Order No. 5, the Miniter-in-charge has authorized the Secretary to permit a Deputy or an Assistant Secretary of the Department

to dispose of certain types of cases and the Secretary, has also issued an order which has been referred to earlier, in conformity with Standing

Order No. 5, and it is by virtue of this provision that the notification, u/s 4 was issued by the Assistant Secretary Land and Revenue Department--

Government of West Bengal. We are in entire agreement with the reason given by the Division Bench of the Calcutta High Court for upholding the

validity of the notification, dated February 4, 1955, issued u/s 4 of the Act.

While thus upholding the validity of departmental disposal of the matter without reference to the Minister-in-charge, the Supreme Court pointed out

that they had no occasion to consider whether the matter u/s 4 could be properly delegated by the Minister-in-charge or should have been dealt

with by the Minister himself. Having regard to the number of cases where in departmental disposal of matters, without consideration by the

Minister-in-charge, has been accepted by the highest Court in this country, learned Counsel Mr. M.K. Nambiyar, while reserving the point and not

conceding the position has not developed this contention before us.

It can make no difference that the governmental function thus assigned to the department is quasi-judicial in character, as is the function u/s 68-

D which, by Rule 23-A(2) has to be exercised by the Secretary, Home Department. In Gullapalli Nageswara Rao and Others Vs. Andhra

Pradesh State Road Transport Corporation and Another, Subba Rao J. (as he then was) observed:

The Rules the Governor is authorized to make, the argument proceeds, are only to regulate the acts of the Governor or his subordinates in

discharge of the executive power of the State Government, and, therefore, will not govern the quasi-judicial function entrusted to it. There is a

fallacy in this argument. The concept of a quasi-judicial act implies that the act is not wholly judicial; it describes only a duty cast on the executive

body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power. The procedural rules made

by the Governor for the convenient transaction of business of the State Government apply also to quasi-judicial acts, provided those Rules

conform to the principles of judicial procedure.

Reference may also be made to the decision in Capital Multi-purpose Co-operative Society Bhopal and Others Vs. The State of M.P. and

Others, where the Special Secretary to the State Government heard objections u/s 68-D. It is observed by the Supreme Court:

The State Government obviously is not a natural person and, therefore, some natural person has to give the hearing on behalf of the State

Government. Article 166(3) of the Constitution gives power to the Governor to make rules for the more convenient transaction of the business of

the Government of the State, and Rules of Business have been framed under this power for the performance of duties which have to be performed

under the law by the State Government. It is not in dispute that the Special Secretary who gave the hearing in the present case was authorized

under the Rules of Business....

After hearing objections, the State Government, or the officer authorized by it has either to approve or modify, or if necessary, to reject the

scheme.

The quasi-judicial functions of the Government are not excepted from Articles 154 and 166. The term executive in the phrase the executive power

of the State in Article 154 is used in a broad sense as including both a decision as to action and carrying out of such decision-see Sibnath Banerji''s

case (1945) F.C.R. 195 (P.C.). That necessarily takes in any quasi-judicial function that may precede administrative or executive action. As

pointed out by Section A. De. Smith in his Judicial Review of Administrative Action, in making his decision the Minister is generally not required to

act personally: a duly authorized officer of the department may act on the Minister''s behalf: but it may be that the importance of a particular class

of decision will be such as to impose upon the Minister a legal duty to address his own mind to the matter.

This follows from the principle that, when the business allotted to a Minister is exercised by a departmental official, constitutionally there is no

delegation. Where functions entrusted to a Minister are performed by an official employed in the Minister''s department, there is in law no

delegation because constitutionally the act or decision of the official is that of the Minister.

See Halsbory''s Laws of England, Simonds edition, volume I, at page 170. In Griffith''s Principles of Administrative Law, second edition, at page

68, it is stated:

A Minister is not expected personally to execute all the powers given to him by statute. His departmental officials make most of the decisions. This

is as true of judicial and legislative as of executive decisions.

The argument that by Rule 23-A the Minister has abdicated his functions and made a Secretary a monarch in the matter, is without substance

viewed in the background of ministerial responsibility, the key stone of our parliamentary democracy. While political responsibility of a Minister to

the Legislature for the entire activity of his department ensures control over departmental work, the departmental distribution of business ensures

undivided attention to the matter by experienced officials of the department in the permanent service who remain anonymous. As pointed out by Sir

Ivor Jennings in his Cabinet Government, at page 108, the essential function of a Minister is to relate the policy of the department to the general

policy of the Government. If he immerses himself in departmental duties he becomes not a Minister but a very senior administrator. As stated by

Jennings in the Queen''s Government, at pages 108 to 113.

Even the hardest-working Minister cannot take a tithe of the decisions which present themselves for decision.

Those which cannot be put to him must be decided by officials, at the level of the Under Secretaries or the Assistant Secretaries. Their decisions

are, however, the decisions of the Minister and he cannot subsequently repudiate them. They must be decisions of such a character that they would

have been taken by him if he had had time to deal with them. They carry the same implications as his own. They are the decisions of Her Majesty''s

Government, capable of causing as much political difficulty as those of the Minister or the Cabinet.

I shall not elaborate on this aspect of the matter, as it is being dealt with in great detail by the learned Chief Justice.

The handle for serious attack on the vires of business Rule 23-A was provided by the State itself, when in the first counter affidavit filed in

these proceedings assertion was made that it was open to the Governor of Madras to vest the statutory powers of the State Government which

were conferred under a separate enactment in any officer under Article 166(3) of the Constitution. On this the argument has been built up that

ministerial responsibility has been given a go-by and the function of the Minister assumed by a member in the permanent service of the State.

Following certain observations from this Court, the Minister-in-charge, Thiru M. Karunanidhi, has filed an affidavit explaining the manner in which

business in his department is being transacted. It is stated therein that, as the Minister-in-charge of the subject, in respect of cases falling within the

scope of Sections 68-C and 68-D of the Motor Vehicles Act, he has a right to call for the papers from the Secretary at any time. Reference to this

affidavit has been made already. The Minister declares in his affidavit that he is constitutionally responsible and accountable for all official acts of his

Secretary, including the preparation and publication of the schemes u/s 68-C and modification or approval of the schemes u/s 68-D on behalf of

the State Government. But it is manifest, whether he states so or not, constitutionally, if he is the Minister-in-charge, the responsibility is his.

On the Minister Thiru Karunanidhi''s affidavit, Mr. Nambiyar would raise, by a supplemental affidavit, a point that the subject Motor Vehicles

Act comes under the Home Department and Thiru M. Karunanidhi is not the Minister for Home in terms of the notification of the allocation of the

business in G.O. No. 491, dated 6th March, 1967. It is pointed out that the notification shows that only Transport and Nationalized Transport is

allotted to this Minister and not Motor Vehicles Act. Reference is made to the decision of the Supreme Court in Godavari Shamrao Parulekar Vs.

State of Maharashtra and Others, , in support of the contention that it is the Minister in charge that could deal with a subject and not any other

Minister. This question was raised before us on the former occasion also in Sanjeevi v. Madras State Transport Undertaking ILR (1969) Mad.

289 and, there, having regard to the submission then made for the State, I accepted the claim that the Minister-in-charge of Works is the Minister

who deals with Transport, including Motor Vehicles Act and Nationalized Transport. More materials have been placed before us by the learned

Advocate-General and they clearly establish that, though Motor Vehicles Act is under the Home Department, it is being dealt with by the Minister-

in-charge of Transport, Thiru M. Karunanidhi. Home Department as such has not been allotted by G.O. No. 491, dated 6th March 1967 to any

Minister and the Governor is not precluded, on the advice of the Chief Minister, in allotting subjects in one department among several Ministers. A

further affidavit has been filed by the Secretary to the Home department, pointing out that there is no such Minister as Minister in-charge of Home

Affiairs and that the files relating to Motor Vehicles Act 1939 are submitted to Thiru Karunanidhi, the Minister in charge of Transport as the

subject of Motor Vehicles Act forms part of the subject Transport. Whether that is so or not, Thiru Karunanidhi is factually allotted Motor

Vehicles Act. The contention raised by the supplemental affidavit for the private operators that the decisions under Sections 68-C and 68-D of the

Act are not constitutionally decisions of the Minister-in-charge, therefore, fails.

It is next urged that, as the decisions arrived at under Sections 68-C and 68-D are admittedly constitutionally decisions of one and the same

Minister, the principles of natural justice are violated. The decisions u/s 68-D being quasi-judicial, it is summitted that making the proposer, the final

arbitrator of the validity of the scheme violates the principle that justice should not only be done but should seem to be done. Of the twin pillars of

natural justice, it is said that, while the right to be heard is conceded and provided for the rule against bias is discarded. But where no personal bias

is attributed to the Minister-in-charge, the mere fact that the schemes are in pursuance of a broad policy decision, cannot in my opinion, vitiate the

determination in the Ministry on the ground of bias. The objections to the scheme u/s 68-C which may call for examination and decision u/s 68-D

have to be on the requirements of Section 68-C to make the scheme a valid one. What has to be examined is whether the scheme in relation to any

area or route or portion thereof is necessary in the public interest for the purpose of providing an efficient, adequate, economical and properly co-

ordinated road transport service and whether there should be exclusion, complete or partial, of other persons. Every one of these considerations is

necessary for successful implementation of the scheme and the Government should be as much concerned in the scrutiny on these aspects as any

private operator. While objections would be raised by the private operator in his interest, the Government which is impersonal should be

concerned and may be expected to be concerned in examining the objections for a proper and efficient implementation of the scheme in

accordance with the provisions of the Act in the interest of the public at large. These are objective considerations, that cannot be covered up and

ignored on grounds of some policy.

In Keir and Lawson Cases in Constitutional Law, fifth edition, at page 499, a constitutional way of avoiding bias is indicated thus:

If, the power is conferred on an individual, such as a particular Minister, no objection can be taken to his deciding on the ground that he has a

departmental or political interest or bias. It may indeed be possible for a Minister so to organise his department as to assign to some more impartial

person the task of making the necessary findings of law and fact; he cannot avoid at least taking responsibility for the final decision in so far as it is

based on his views of policy, for that indeed is the reason why the task of deciding has been confided to him. He may, however, reduce the

chances of partiality in deciding a more purely administrative question if he take care to avoid committing himself at an early stage.

Under a written Constitution like ours with guaranteed fundamental rights, where objections are made in relation to private rights and interests of

objectors and not as members of the public with reference to policy matters and decisions, clear dichotomy of the essential function of decision

making is certainly called for. The learned authors observe at page 501:

Perhaps it may be doubted whether the making of an order on a Minister''s own initiative may not sometimes involve the decision of a controversy,

if not between a public authority and private interests, at any rate between the public interest and a private interest, and if it were so it would be

very unfortunate to suggest that the rules of natural justice should not apply.

In my view, evidently having these aspects and the requirements of natural justice in mind, the functions u/s 68-C and 68-D have been at

departmental level, clearly separated and left to senior officers the Minister assuming only constitutional responsibility for the decisions, as he has to

do. Under the Constitution, in fact, with whomsoever the determination is vested, the responsibility is of the Council of Ministers and in the ultimate

it goes in the name of the Governor. The requirement of natural justice can only be that bias must be absent when a decision is made and in the

person who makes the decision. In The State of Bihar and Others Vs. Bhabapritananda Ojha, the position is stated thus:

It is, therefore, manifest that under the Constitution and the rules framed there under a Minister in charge of a department is primarily responsible

for the disposal of the business pertaining to that department, but the ultimate responsibility for the advice is on the entire ministry. But the position

of the Secretary of a department is different. Under the said Rules, the Secretary of a department is its head, i.e., he is part of the department.

There is an essential distinction between the functions of a Secretary and a Minister; the former is a part of the department and the latter is only

primarily responsible for the disposal of the business pertaining to that department. On this distinction the previous judgment of this Court was

based, for in that case, after pointing out the position of the Secretary in that Department, it was held that ""though the formal orders were made by

the Chief Minister, in effect and substance, the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself.

We cannot, therefore, accept the argument of the learned Counsel that the Chief Minister is part of the department constituted as a statutory

undertaking under the Act.

In H.C. Narayanappa and Others Vs. The State of Mysore and Others, where as in this case the State transport undertaking was a department of

the State Government, the Supreme Court met the question as follows:

Section 68-D of the Motor Vehicles Act undoubtedly imposes a duty on the State Government to act judicially in considering the objections and in

approving or modifying the scheme proposed by the transport undertaking. Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh State Road

Transport Corporation and Another, . It is also true that the Government on whom the duty to decide the dispute rest is substantially a party to the

dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval

or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to

hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased his decision will not be

liable to be called in question, merely because he is a limb of the Government. In framing Rule 23-A, the Government has proceeded in the light of

the observations of the Supreme Court in Kalyan Singh v. State of U.P. AIR 1952 S.C. 1183 The Supreme Court in that case observed:

Though the functions of the different bodies are clearly demarcated in the case of undertakings run by corporations, there is overlaping in the case

of an undertaking run by a State Government. This may lead to an anomalous position, but in practice it can be avoided, if the State Government

creates a department to be in charge of the undertaking and hears the objections and approves or modifies the scheme in a manner without

violating the principles of natural justice.

The entrustment of the initiation of a scheme u/s 68-C to the Secretary in one department and the hearing of objections and decisions u/s 68-D to

the Secretary in a different department, both members of the permanent service, should ensure objective approach and fair disposal of the case of

the objectors. The Secretary who takes up the matter u/s 68-D not being the initiator, is not committed to it, and would be departmentally

answerable to the Minister if the scheme does not satisfy the requirements of Section 68-C. Policy decision has to be implemented, only if it is

feasible. The attack on the schemes that there is no independent agency for objectors to canvass the soundness of the schemes, according to the

principles of natural justice, therefore, fails.

Now, to take up the contentions of Mr. V.K. Thiruvenkatachari, they are two fold: one relates to the contents of the schemes and the other is

with reference to Ordinance No. I of 1968 and Act XVIII of 1968 that replaced it, the provisions whereof are intended to facilitate nationalization

schemes at the proposal stage. Drawing our attention to some of the schemes, it is pointed out that individual routes are being taken over, and that

appropriation of routes by the State is made to synchronies with the expiry of existing permits on the routes. The maximum and minimum number of

stage carriage proposed normally to be operated by the STU, it is said, is fixed having regard to the dates of expiry of permits on the routes. Stage

carriages are permitted to be operated by other persons on the routes Nationalized till the expiry of the respective permits. On this, the argument is

built up that the scheme does not provide for an efficient, adequate, economical and properly co-ordinated service. Both a private operator and

the State, it is contended, would suffer economically and there could be no proper co-ordination. On the materials now before us, we cannot

generalise and say whether the schemes so proposed satisfy or not the requirements of Section 68-C. If the schemes conform to the requirements

of Section 68-C, they cannot be struck down on the only ground that routes are appropriated as and when permits of private operators on the

routes expire and monopoly postponed. Section 68-C permits the State transport undertaking to operate a service in relation to any area or route

or even a portion thereof and to the exclusion, complete or partial, of other persons. It is submitted that the idea behind is to deprive a private

operator even the meagre compensation that is provided for u/s 68-B when the take-over has to be to the exclusion of private operators with

current permits. But, if a scheme is lawful and in accordance with the provisions of the Act and constitutionally sound, the motive behind is

irrelevant. That apart, even admittedly the compensation is insignificant and may be that the State does not want to deprive private operators of

such benefits they would derive during currency of their permits.

To take up the second contention, the Ordinance and the Act that replaced it. do make considerable inroads on the rights and claims of private

operators under the Motor Vehicles Act (Act IV of 1939). The Ordinance having been replaced by Act XVIII of 1968, it is sufficient to refer to

the provisions of the Act which came into force on the 4th April 1968 and is made applicable to pending proceedings relating to grant of stage

carriage permits or their renewal. The Act amends the provisions of the Motor Vehicles Act (Central Act IV of 1939) in its application to the State

of Madras. Sections 2 and 3 of the Act, by introducing amendments to Sections 47 and 58 of the Motor Vehicles Act, provide for the Regional

Transport Authority to have regard to the publication of a scheme u/s 68-C, while considering an application for the grant or renewal of a stage

carriage permit. Another vital amendment is the insertion of Section 68-C in chapter IV-A of the Motor Vehicles Act entitling the STU to apply for

and secure, as a matter of course, temporary permits in respect of the routes mentioned in a scheme to be published u/s 68-C. Such temporary

permits differ radically from the temporary permits u/s 62 which can be effective only for a maximum period of four months, as these temporary

permits u/s 68-CC are effective till the grant of a permit to the STU on the approval of a scheme u/s 68-F.

Two arguments are built on the special provisions in favour of the STU. First it is urged that these provisions are violative of Article 14 of the

Constitution. Whereas chapter IV-A of the Motor Vehicles Act as amended providing for special privileges to the STU takes no cognizance for

such privileges of a scheme of nationalization in the embryo stage, that is a proposal u/s 68-C which may or may not get through in the form

proposed and become an approved scheme, it is said, for eliminating private operators on the routes proposed to be Nationalized in advance, Act

XVIII of 1968 by its amendment of the Motor Vehicles Act gives the STU a locus standi to claim temporary permits and oppose applications for

permits or renewal, by private operators in advance of an approved scheme. This, it is said, singles out private operators in Madras State

operating stage carriages under the provisions of the Motor Vehicles Act from private operators in other States for discriminatory treatment

prejudicial to their rights and interests. It is urged that there can be no ground of classification in the matter between private operators in one State

and those in other States. The legislative competency of the State to make the amendments is not questioned, the State Amending Act has been

reserved for consideration of the President and has received his assent. But our attention is drawn to the observation of the Supreme Court in

Deep Chand v. State of Uttar Pradesh ILR (1959) All 293 that presumably Parliament inserted chapter IV-A in the Motor Vehicles Act, 1939,

with a view to introduce a uniform law throughout the country avoiding defects found in practice. It is pointed out that the object of the Concurrent

List with paramountcy to the Central law, if one examines the history of the Lists, is to secure uniformity throughout the country and to provide

against uncoordinated action of State Legislatures. But the Constitution has taken notice of the fact that local conditions and requirements may vary

from State to State requiring appropriate legislation. The requirements of uniformity are balanced by the predominance given to the law of the

Union when the law of the State conflicts with the law on the subject by the Union. The guarantee of equal protection does not prevent States

having different laws, according to local requirements. In The State of Madhya Pradesh Vs. G.C. Mandawar, Venkatarama Ayyar J., said:

Article 14 does not authorize the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject

its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be

unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being

different. Article 14 can have no application.

Reference may also be made to Purshottam Govindji Halai Vs. Shree B.M. Desai, Additional Collector of Bombay and Others, . The problem

arose then in the recovery of income tax demand from Assessees who are scattered all over the Union and the Department adopted the machinery

available in the State where the Assessee had to be proceeded with. Each State, in its wisdom, has devised machinery appropriate and suitable for

recovery of its own public demand. The Supreme Court observed:

It is conceded that each State is well within its rights to devise its own machinery for the recovery of its own public demand and that no person

belonging to one State can complain that the law of his State is more rigorous than that of the neighbouring State The reason is obvious, for the

people of one State are not similarly situated as people of another State. Their needs as understood by their own Legislature are different from

those of the people of other States.

We are unable to read any discrimination by the impugned enactment. The Act makes no distinction between individual private operators in the

State: they are all treated as one class. The classification is only between the STU and other operators. This is justifiable and recognised.

Mr. V.K. Thiruvenkatachari, with a cute reasoning, would put the case of the private operators on the amendment of Central Act IV of 1939

by amending Act XVIII of 1968, from a different stand point, viewed from the fundamental right of the private operator to carry on his trade or

business thus: It is submitted that the Central law providing for State monopoly under chapter IV-A, gives a standard or test of reasonableness of

the restrictions on a private operator. When two legislations operate on the same topic and in the same field, a departure from the paramount law,

though within the legislative competency of the Legislature, should and could be tested under Article 19. Referring to Article 19(6), it is said that

the presumption of reasonableness of restrictions necessitated by State monopoly can only be claimed in respect of a State law relating thereto. A

provisional scheme is not a law under Article 13, whereas an approved scheme would be. The provisional scheme is open to objections and there

has to be a quasi-judicial inquiry to find whether it is in accordance with law, before it can get the sanction of law as an approved scheme. To

become a law and secure immunity to State monopoly from attacks under Article 19, it is paid it must become an approved scheme u/s 68-D. If

given effect to at the embryonic stage to the prejudice of a private operator, it would be open to attack under Article 19(1)(g), Act XVIII, it is

said, seeks to secure monopoly to the STU, even before the approval of the schemes and to the extent Act XVIII of 1968 gives privileges to the

STU even at the proposal stage, it is hit by Article 19(1)(g). Article 19(6), it is argued, gives immunity only to the provisions of law creating, or

essentially connected with, the law creating monopoly and not to laws incidental or helpful for ushering in State monopoly in the business. Our

attention is drawn to the decision of the Supreme Court in Akadasi Padhan Vs. State of Orissa, wherein the Supreme Court, after pointing out that

laws protected by Article 19(6) are regarded as valid even though they impinge upon the fundamental right guaranteed under Article 19(1)(g),

obeserved:

A law relating to ""a State monopoly cannot, in the context; include all the provisions contained in the said law whether they have direct relation with

the creation of the monopoly or not. In our opinion, the said expression should be construed to mean the law relating to the monopoly in its

absolutely essential features. If a law is passed treating a State monopoly, the Court should enquire what are the provisions of the said law which

are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the

latter part of Article 19(6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the

monopoly, they do not fall under the said part and their validity must be judged under the first part of Article 19(6). In other words, the effect of

the amendment made in Article 19(6) is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the

law which are integrally and essentially connected with the creation of the monopoly that are protected. The rest of the provisions which may be

incidental do not fall under the latter part of Article 19(6) and would inevitably have to satisfy the test of the first part of Article 19(6).

Learned Counsel contends that provisions of Act XVIII of 1968 are only ancillary and in aid of the scheme to be put into operation after its

approval and so cannot claim protection under Article 19(6). To examine the impact of the amendments on the private operator. u/s 68-F in

chapter IV-A as it stands, the law makes it incumbent on the Regional Transport Authority, to refuse to entertain any application for the renewal of

a permit to cancel or modify the terms of any existing permit rendering it ineffective beyond a specified date, to reduce the number of vehicles

authorized to be used under the permit or curtail the area or route covered by the permit in so far as such permit relates to the notified area or

notified route, for the purpose of giving effect to the approved scheme in respect of a notified area or notified route. But by the local amendment

even a scheme published u/s 68-O is, in effect made an approved scheme for certain purposes and to a degree so as to affect prejudicially the

private operator. By Section 2 of the amending Act, Section 47 of the principal Act is amended Sub-clause (cc) introduced to Section 47(1)

requiring the Regional Transport Authority, in considering an application for a stage carriage permit, to have regard to the publication of a scheme

u/s 68-C. Again, by Section 3 of the amending Act, Section 58 of the principal Act dealing with renewal of permits is amended and Sub-section 2-

A which runs as follows is introduced:

Notwithstanding anything to the contrary contained in this Chapter, the Regional Transport Authority shall, in considering an application for the

renewal of a stage carriage permit, have regard also to the publication of a scheme u/s 68-C in respect of service of stage carriages.

Learned Counsel emphasises, particularly, on what is said to be the mischief brought in by this amendment, to the grave prejudice of the private

operator. Section 58 does require a renewal application to be disposed of as if it were an application for a permit. Considering the application as

one for permit, the Regional Transport Authority, in the normal course, will have regard to the matters set out in Section 47(1), and that would take

in the new Sub-section (cc). Why then, the amendment Section 2-A to Section 58? It is submitted that the Regional Transport Authorities in

practice feel that, as they are bound to have regard to the publication of scheme u/s 68-C and this is made mandatory notwithstanding anything to

the contrary contained in chapter IV, they are bound to refuse renewal applications. When there may be months to go for an approved scheme to

come into operation, private operators are ousted from their routes, the STU securing for itself temporary permits on the routes. It is pointed out

that the Regional Transport Authorities having regard to the amendments made in chapters IV and IV-A of the Act, even if they do not

straightaway dismiss renewal applications, in effect and substance do sp>by postponing consideration of the renewal applications for months

awaiting approval of the scheme. Another aspect of the unreasonable nature of the amendments and in the administration of the amending Act. is

stressed. A scheme u/s 68-C may not be approved at all or some of the routes proposed may be modified or dropped. It cannot be contended

and the Regional Transport Authority cannot presume that a scheme published u/s 68-C would willy-nilly become an approved scheme. Such an

assumption could be made only if the inquiry contemplated u/s 68-D is a farce. No responsible person would say so. Section 5 of Act XVIII of

1968 itself envisages a, situation when the scheme may not be approved. It provides, that in that event, a, temporary permit granted to the STU

shall be effective for a week after the rejection of the scheme. If, in view of a published proposal, the Regional Transport Authority dismisses a

renewal application and eventually the route is not approved for nationalization, the private operator, under the law as it stands, would lose the

preemptive right of renewal when the route is thrown open once again for private operators. Again, if a renewal application is kept pending beyond

four months after the expiry of the permit, the private operator may be refused even a temporary permit. Delay would in reality be denied. The

argument for the private operator is that on these considerations the provisions of Act XVIII of 1968, which deal with a stage prior to the coming

into operation of an approved scheme, should be struck down as unreasonable and violative of Article 19(1)(g)- There is considerable force in

these contentions. But, in our view, the amendments as they stand, on a proper and correct interpretation of the provisions, are not necessarily

unreasonable in their impact on the service of private operators. In that view it is unnecessary to examine these contentions in greater detail. If

without unduly straining the language, the Act could be interpreted so as to make it constitutional the Court should so interpret it. Any construction

that results in hardship inconvenience or injustice should be avoided if a different construction can fairly be had. The power to nationalize motor

transport imposes restrictions on the fundamental rights of citizens to carry on their business in motor transport and the provisions of any law in that

regard must be strictly construed.

Section 47 makes it incumbent on the Regional Trasnport Authority to have regard to certain specified matters, in considering an application

for stage-carriage permit. Sub-clause (c) of Section 47(1) requires the Regional Transport Authority to have regard to the adequacy of other

passenger transport service operating or likely to operate in the near future, whether by road or other means, between the places to be served. The

amended Sub-section (cc) only brings into focus the publication of a scheme u/s 68-C in respect of the route or area. When considering a renewal

application which has to be disposed of as if it were an application for permit, the Regional Transport Authority is required to take into account

publication of the scheme u/s 68-C. Certainly, the amendment does not by itself warrant rejection of renewal applications of the existing operators.

The publication of the scheme is only one consideration out of the many which the Regional Transport Authority has to regard. The paramount

interest to which he must have regard to is public interest, and public interest will not be served by the dismissal of a perfectly qualified private

operator''s application for renewal on the mere fact of publication of a scheme for nationalization of the route which may take months for the

scheme to materialise. If the scheme is approved eventually, there are provisions in chapter IV-A to give effect to it forthwith. u/s 68-F, an existing

permit can be cancelled or its terms modified rendering it ineffective beyond a specified date, or the route or area curtailed in so far as the permit

relates to the route or area. The rejection of applications for renewal is not necessarily called for, even if, in all probability, the scheme as proposed

would come through without modification and get approved.

The phrase have regard to in Section 47(1) with reference to the newly introduced sub-clause (cc) and in Section 58(2-A) does not demand

that the related requirement must be the sole basis for decision. In The Mysore State Electricity Board Vs. Bangalore Woollen, Cotton and Silk

Mills Ltd. and Others, , the Supreme Court accepted the meaning of the phrase given by the Judicial Committee in Ryots of Garabandho v.

Zamindar of Parlakimedi ILR (1944) Mad. 457 that the requirement to have regard to

has no more definite or technical meaning than that of ordinary usage, and only requires that these provisions must be taken into consideration.

The Judicial Committee pointed out that the exact force of the expression have regard to or expressions very close to that must be considered in

relation to the context and subject-matter, and that a general interpretation of the phrase is dangerous. The amended Sub-section 47(1)(cc),

repeated again, specifically with reference to a renewal application u/s 58(2-A), should not be read as a mandate for discarding renewal

applications irrespective of other considerations True, the provisions Section 52(2-A) starts with the non-obstante clause notwithstanding anything

to the contrary contained in this Chapter. But, despite indicating that the provision must have an overriding effect, the requirement is only that the

Regional Transport Authority shall, in considering an application for the renewal of a stage-carriage permit, have regard to the publication of a

scheme u/s 68-C. In the context and in its setting, all that the non-obstante clause can moan is that the other provisions in the chapter shall be no

impediment to the operation of the sub-section. It removes any implied prohibition to the taking into consideration of the publication of a scheme

u/s 68-C to the extent proper, while considering a renewal application. The explanatory-statement to the Ordinance that preceded Act XVIII of

1968 shows doubt in the mind of the Legislature that any consideration by the Regional Transport Authority, while considering an application for

the grant, or the renewal, of a stage carriage permit, of publication of a scheme u/s 68-C may not be legal, and the amendments are made to make

the position clear. The provisions are obviously inserted ex abundanti cautela. To read more into the amendments than what is found in the plain

language of the amendments would be to interpret them in a manner that may make them unconstitutional. While under chapter IV, the Government

or the STU seeking permit is not in any statutorily privileged position. 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 IV-A. Chapter IV-A is 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 u/s 68-F(1), to the

necessary permits. Under chapter IV, the Government does not have any such advantage; and it has to complete with other Applicants to secure

permits to be able to run its buses The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and

Others, . There is nothing to prevent the Government from competing with private operators in proceedings under chapter IV. But in such

proceedings, the Government is like any other private operator. The Government cannot, in proceedings under chapter IV, call upon the Regional

Transport Authority to give them any special privilege or consideration, apart from its showing its qualifications and capacity to comply with the

requirements of the statute in the interests of the public. Mandatory regard for the STU is found only in chapter IV-A. Viewed broadly, the fact

that the Regional Transport Authority is required to have regard to the publication of a scheme u/s 68-C itself is not an unreasonable provision.

Whether in the matter of granting of fresh permit or renewing an application, the new Sub-section (cc) can, like the other provision (c) in Section

47(1), be a matter for consideration. We can see nothing objectionable in that requirement.

The Regional Transport Authority is functioning as a quasi-judicial Tribunal. It is vested with powers in the regulation of a citizen''s fundamental

right to carry on transport business on the public highways. While making determination under chapter IV as a quasi-judicial Tribunal, the Regional

Transport Authority, cannot allow itself to be swayed by consideration of governmental policies. That would be bringing in extraneous

considerations in the determination. It must go by the law. It has to pay only regard, a regard that is warranted under the circumstances of each

individual case, to the publication of a scheme u/s 68-C. When an application for renewal comes before the Regional Transport Authority, it has to

deal with it in accordance with the provisions of the Act, and cannot, importing into the matter policy considerations put off for any unreasonably

long period, disposal of the application on the merits, awaiting publication of a scheme u/s 68G or approval of one u/s 68-D. That may not be in

the public interest. Renewal applications are a class by themselves though they have to be disposed of as if they are applications for permit. It

would be improper for a quasi-judicial Tribunal to take advantage of the fact that the Act does not provide for an outer limit for disposal of an

application for renewal, in furtherance of a policy which the law does not enjoing it to pursue. An application for renewal is required to be made

not less than sixty days before the date of the expiry of the permit, and the prohibition against the grant of a temporary permit pending an

application for renewal of a permit more than once, the period of a temporary permit being limited to a period of four months, is a clear indication

that the application for renewal must be disposed of within a reasonable time, at any rate during the currency of the temporary permit. The

governing consideration being public interest if finalization of a scheme published u/s 68-C is imminent, the Regional Transport Authority may

properly postpone the grant of renewal for a reasonable period, as there will be no purpose in granting renewal and cancelling it shortly thereafter

u/s 68-F if the proposal gets approved. If, for unavoidable reasons, there is a delay in disposing of an application for renewal, the Regional

Transport Authority must see to it that the private operator is not prejudiced and his service stopped even before a published scheme is approved

and the scheme comes into force, by grant of temporary permit. u/s 68-CC, the STU has to be given a temporary permit, to be effective till the

grant of permit to the STU u/s 68-F(1). But the grant of a temporary permit under this provision to the STU should not result in the automatic

deprivation of a private operator on the route of his rights under the Act for renewal or for a temporary permit. Monopoly can be claimed by the

STU only on an approved scheme. Without that there may be violation of the right of the private operator guaranteed under Article 19(1)(g). None

of the provisions of Madras Act XVIII of 1968, as we interpret the Act, are violative of either Article 14 or Article 19(1)(g), and so cannot be

struck down as invalid. If in any case in the administration of the Act the private operator has been wronged, he may have his redress for the

wrong. That the provisions of the Act are being wrongly applied, is not a ground for striking them down.

To summarise the conclusions: Rule 23-A of the Government Business Rules is not ultra vires or illegal as contended. The schemes prepared

and published, approved as published or modified and approved, are not invalid and devoid of legal sanction for the reason only that the schemes

have been prepared and published, approved as published, or modified and approved under Rule 23-A(1) or 23-A(2), as the case, may be.

Neither Act XVIII of 1968 nor the Ordinance that preceded it is ultra, vires or invalid to any extent The amended provisions, Sections 47(1)

(c) and Section 58(2-A) of the Motor Vehicles Act do not by themselves require the Regional Transport Authority to reject a renewal application

on the ground that a scheme u/s 68-C has been published. Nor can the Regional Transport Authority postpone disposal of a renewal application

for an inordinately long period because a scheme has been published u/s 68-C.

The Regional Transport Authortiy as a quasi-judicial Tribunal has to deal with an application for renewal before it judicially. The imminence of

an approved scheme is a relevant consideration. Equally judicial approach requires avoidance of injury to and excessive restrictions on the

transport business of a private operator, where due observance of law does not warrant it. The fact that the STU on the publication of a scheme

u/s 68-C, can have a temporary permit u/s 68(cc) should not by itself result in the deprivation of a private operator of the route. He must be

enabled to maintain his service, if not on permanent, on temporary permit till an approved scheme requires its stoppage.

The writ petitions will be posted for disposal on their merits in the light of the above principles. Counsel on both sides agree that Writ Petition

No. 335, 2210, 212, 3762, 3763, 3772, 3773, 3846 and 384 of 1968 may be dismissed following our above observations. They are accordingly

dismissed.