Judgment

HEGDE, J.:- These 51 appellants are private stage carriage operators in the State of Tamil Nadu. They have been operating in various routes in that State. Some of those routes are proposed to be nationalised. A draft scheme of nationalisation has been prepared and published under Section 68 (C) of the Motor Vehicles Act (Central Act IV of 1939) (to be hereinafter referred to as the Act ). The validity of the draft scheme was challenged by the appellants before the High Court of Madras under Article 226 of the Constitution. Incidentally the validity of some of the provisions of the amending Act XVIII of 1968 (Madras Act) also came to be challenged in those petitions. A Division Bench of the Madras High Court consisting of Anantanarayanan, C. J. and Natesan, J., have dismissed those petitions. As against the decision of the High Court these appeals have been brought on the strength of the certificates issued by the High Court.

2. In these appeals we are primarily concerned with the validity of the draft scheme under challenge. The ground on which it is challenged is that the opinion requisite under Section 68 (C) of the Act was not formed by the State Government but by the Secretary to the government in the Industries. Labour and Housing Department, acting in Pursuance of the powers conferred on him under Rule 23 (A) of the Madras Government Business Rules (to be hereinafter referred to as the Rules ). The contention of the appellants is that the said rule is ultra vires the provisions of the Constitution. There is no dispute that if the rule in question is valid, the challenge directed against the draft scheme must fail. The High Court has opined that that rule is a valid rule. It is the correctness of that conclusion that is primarily in issue in these appeals.

3. Section 68 (C) prescribes:

"Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial of other persons or otherwise, the State Transport Undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct."

4. This section requires that the State Transport Undertaking must form the opinion contemplated therein. In the State of Tamil Nadu, the State Transport Undertaking is a department of the State Government. Therefore the necessary opinion should have been formed by the State Government. It was urged on behalf of the appellants that under our constitutional set up, the requisite opinion could have been formed either by the Council of Ministers or the Minister to whom the business in question had been allocated under the Rules . The same could not have been formed by the Secretary who is merely an official and that too by the Secretary who is not the head of the department to which the functions under the Act had been assigned. The contentions advanced on behalf of the appellants proceed thus: The executive power of the State vests in the Governor (Article 154). In the exercise of that power he has to be aided and advised by the Council of Ministers with the Chief Minister at the head (Article 163 (1)) but the Governor can make rules for more convenient transaction 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 the Constitution required to act in his dis