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1991 Supreme(AP) 195
Andhra Pradesh High Court
Judges : A.VENKATRAMA REDDY, SARDAR ALI KHAN
K.Kumaraswamy - Appellant
Versus
State OF A.P. - Respondent
Decided On : 04-26-91
The fundamental right guaranteed under Article 19 (1) (g) is absolute in its nature and content but subject to reasonable restrictions on the exercise of such right as provided under Article 19 (6) (i) and (ii) of the constitution.
Headnote:
MOTOR VEHICLES ACT - SECTION 99 - CONSTITUTIONALITY - ARTICLE 19(1)(G) AND 19(6)(II) - INTERPRETATION - SCHEME FOR NATIONALISATION OF BUS ROUTES - VALIDITY - LIMITATION UNDER SECTION 100(4) - APPLICABILITY.
Fact of the Case:
90 private bus operators of Vijayawada filed a Writ Petition challenging the impugned notification published in Deccan Chronicle English News Paper Daily dated 9-2-1991, issued in accordance with the directions of the High Court of Andhra Pradesh in W. P. Nos. 18385/89 and 11867/ 90 dated 28-12-1990 and of the Supreme Court of India in SLP Nos, 667/91 and 668/91 dated 28-1-1991. The petitioners claimed that the impugned notice is void and illegal as it is not in accordance with any of the provisions of the Motor Vehicles Act. They also alleged that most of the petitioners are not covered by the Writ Petitions mentioned in the notice and they are covered by W. P. Nos. 98/91 and 430/91 dated 4-2-1991. It was also alleged by the petitioners that the proceedings in the notification are barred by limitation under Section 100 (4) of the motor Vehicles Act, 1988.
Finding of the Court:
1. The fundamental right guaranteed under Article 19 (1) (g) is absolute in its nature and content but subject to reasonable restrictions on the exercise of such right as provided under Article 19 (6) (i) and (ii) of the constitution. 2. The grant of stage carriage permit is a regulatory measure and does not confer any absolute right to the permit holder to carry on such a trade or business independently of the permit. 3. The term "service" occurring in Section 99 of the Motor Vehicles Act, 1988 is to be understood in the light of the definition given in sub-section (42) of Section 2 of the said Act, which has been referred to earlier. 4. Section 99 of the Motor Vehicles Act, 1988 is thoroughly infra vires the authority of the State Legislature and its validity cannot be questioned in the light of the conclusions already arrived at by us earlier in this judgment. 5. The period of limitation in the present case also started running from 1-7-1989 and the scheme could have been published uptil 30-6-1990.
Issues: 1. Whether the impugned notification issued in accordance with the directions of the High Court of Andhra Pradesh in W. P. Nos. 18385/89 and 11867/ 90 dated 28-12-1990 and of the Supreme Court of India in SLP Nos, 667/91 and 668/91 dated 28-1-1991 is valid? 2. Whether the impugned notice is void and illegal as it is not in accordance with any of the provisions of the Motor Vehicles Act? 3. Whether the proceedings in the notification are barred by limitation under Section 100 (4) of the motor Vehicles Act, 1988?
Ratio Decidendi: 1. The fundamental right guaranteed under Article 19 (1) (g) is absolute in its nature and content but subject to reasonable restrictions on the exercise of such right as provided under Article 19 (6) (i) and (ii) of the constitution. 2. The grant of stage carriage permit is a regulatory measure and does not confer any absolute right to the permit holder to carry on such a trade or business independently of the permit. 3. The term "service" occurring in Section 99 of the Motor Vehicles Act, 1988 is to be understood in the light of the definition given in sub-section (42) of Section 2 of the said Act, which has been referred to earlier. 4. Section 99 of the Motor Vehicles Act, 1988 is thoroughly infra vires the authority of the State Legislature and its validity cannot be questioned in the light of the conclusions already arrived at by us earlier in this judgment. 5. The period of limitation in the present case also started running from 1-7-1989 and the scheme could have been published uptil 30-6-1990.
Final Decision: The Writ Petition is dismissed. In the circumstances of the case there will be no order as to costs. Advocate’s fee Rs. 250/-
( 1 ) NINETY private bus operators of Vijayawada have filed this Writ Petition for the issue of a Writ of Mandamus declaring that the petitioners are having fundamental rights under Article 21 of the Constitution of India i. e. , the right to live and to carry on their profession or occupation under article 19 (1) (g) of the Constitution of India in running the stage carriage buses as per the original permits grunted by the authorities on Vijayawada town Service routes. They also seek a declaration that Section 99 of the motor Vehicles Act, 1988 (Act No. 59 of 1988) is a fraud on the Constitution of India and seek a further declaration that the impugned notification, published in Deccan Chronicle English News Paper Daily dated 9-2-1991 (bearing Memorandum No. 22/tr. IV/90 dated 5-2-1991) cannot affect the fundamental right of the petitioners in carrying on their profession and occupation of running the buses. They also seek a declaration that the impugned notification dated 5-2-1991 is illega1 and void and not in accordance with the order of this court passed in W. P. Nos. 18385/89 and 11867/ 90 dated 28-12-1990.
( 2 ) THIS comprehensive prayer in the Writ Petition, therefore, is to he judged in the light of the facts alleged in the affidavit filed by the 2nd petitioner in support of the Writ Petition.
( 3 ) ALL the petitioners are citizens of India and they claim to have a fundamental right to carry on their profession and occupation guaranteed to them under Art. 19 (1) (g) of the Constitution of India. Further more, under Article 19 (6) (i) it is provided that professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business can be prescribed by the State authorities. Under article 19 (6) (ii) the earring on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise is provided.
( 4 ) THE petitioners were granted permits to run buses which they claim to be a part of their profession and occupation. The concept of nationalisation under Article 19 (6) (ii) of the Constitution of India is assailed by the petitioners in so far as it affects their profession or occupation to run the buses on the strength of the permits granted to them. The second aspect of the matter is that the petitioners allege that Section 99 of the motor Vehicles Act, 1988 is a fraud on the Constitution as it ignores the difference existing between the profession and occupation on the one hand from trade, business and industry on the other.
( 5 ) ON 9-2-1991 the Government of Andhra Pradesh published a notification bearing Memorandum No. 22/tr. IV/90, dated 5-2-1991 of the transport, Roads and Buildings (Tr. IV) Department, in Deccan Chronicle according to which notice was given in accordance with the directions of the High Court of Andhra Pradesh in W. P. Nos. 18385/89 and 11867/90 dated 28-12-1990 and of the Supreme Court of India in SLP Nos, 667/91 and 668/91 dated 28-1-1991. The object of this notification is to give information to the general public and to invite objections from them with reference to the schemes mentioned therein and the 66 routes enumerated in the said notice. The petitioners further allege that the impugned notice is void and illegal as it is not in accordance with any of the provisions of the Motor Vehicles Act. It is also alleged that most of the petitioners are not covered by the Writ Petitions mentioned in the notice and they are covered by W. P. Nos. 98/91 and 430/91 dated 4-2-1991. It is also alleged by the petitioners that the proceedings in the notification are barred by limitation under Section 100 (4) of the Motor Vehicles Act, 1988.
( 6 ) SRI K. R. K. Vara Prasad, learned counsel appearing for the petitioners, has made three main submissions in this case. His first submission is that under Art. 19 (1) (g) of the Cons
