1998 Supreme(Del) 639

High Court Of Delhi
OM PARKASH PAHWA - Appellant
Versus
STATE OF DELHI - Respondent
Decided On : 08/25/1998

Headnote:Administrative Law - Delegation of power by President and Governor.

       Held :

       The exercise of power by the President or the Governor can be delegated in the following cases (i) when authorised by the Constitution or any Statute; (ii) when the power is not vested as a tmst or is not intended to be exercised by him personally and the delegation is not prohibited. Delegation cannot be so made as to efface the office of President or Governor itself. A delegate may n,ot further delegate. Every discretion vested in the holler of a public office must be exercised to the best of judgment. (pr. 79)

       The pleasure of the President or the Governor is also capable of being exercised by such officers to whom it may be delegated. (pr. 80)

       Constitution of India - Article 239AA — Nature of power execised and faction discharged by Lt Governor of NCT of Delhi — Power and functions of LG eo nomine and in his discretion.

       Under the parliamentary or cabinet system of Government as embodied in our Constitution, the President is the constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the constitution at the aid and advice of his council of ministers. The Governor is the constitutional of formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of numbers save in the spheres where the Governor is required by or under the constitution to exercise his junctions in his discretion. A comparative reading of Article 74 and 163 of the Consti-tution shows that in the matter of exercise of such functions which are in his discretion by or under the Constitution the Governor is not made to depend on the aid and advice of the council of ministers under Article 163. The Constitution has not chosen to provide for similar discretionary functions to be discharged by the President under Article 74. The words " in his discretion" are used in relation to some powers of the Governor and not in the case of the President. (pr.66)

       The phraseology employed by Clause (4) of Article 239 AA deserves to be compared with that employed in Article 163. The Lt Governor of NCT of Delhi would be aided and advised by the Council of Ministers in the exercise of his functions in relation to the matters with reference to which the legislative assembly has power to make laws. However, the Governor while exercising such powers and discharging such functions which any law requires to be done in his discretionare not associated with the aid and advice of the council of ministers. Tliere the Lt Governor acts in his discre- tion.( pr.67)

       To put it briefly what the Governor of a State may do at his discretion must be so provided for by the Constitution, What the Lt Governor of NCT of Delhi may do at his discretion may be provided by or under any law and not the Constitution merely, (pr. 68)

       The Governor under Article 163 can take up the view of the Council of Ministers exercising executive power of the State. He can exercise powers and functions without the aid and advice of the Council of Ministers when he is required to exercise his constitutional functions conferred on him eo nomine the Governor. The same principle applies to the Lt Governor of NCT of Delhi. He may so exercise his powers and Junctions which are conferred on him eo nomine,and also when he is required to act in his discretion by or under any law. (pr.70)

       Delhi Motor Vehicles Rules, 1993 - Ch.VI — Expression STU is inappropriate — It means State Govt — ( need to amend the rules pointed out) (pr, 21)

        Motor Vehicles Act, 1988 - Sections 82 and 86(1) (c) — Illegal trafficking in permits — Not permitted — kM Scheme of Delhi Govt is illegal.

       The possession of the vehicle under kilometre scheme is certainly not transferred to the Corporation. The possession and even control of the vehicle remains with the owner of the bus i.e. the private operator. All that the DTC does is to regulate its opera-lion by placing its conductor on the bus. The conductor has hardly anything to do with the vehicle. He is merely to issue tickets and collect the fare. (pr.36.2) The scheme of the Motor Vehicle Act shows that a permit is not to be issued to a person not arising a vehicle to exploit it. A permit is identified with the vehicle too. If the DTC proposes to have a permit in its name but does not own a vehicle to be used against the permit and still choses to utilise the permit by making use of some other vehicle which is neither owned nor possessed by it, it would mean trafficking in per-mit.(pr.39)

       Sections 99 and 100 — Proposal as to scheme — requirements of hearing of objections Under Section 100(2) — Power of Lt Governor can be delegated — Concept of State Government under the provisions, in NCT of Delhi.

       A bare reading of Section 99 highlights a few considerations which the legislature has chosen to engraft in the provision, which have to be kept in view while framing the scheme. Firstly, the necessity in the public interest is the governing and paramount consideration in the context of any proposal regarding any running or operating of road transport service by a State Transport Undertaking. Any proposed operation by STU to the exclusion, complete or partial of other persons or otherwise must withstand the test on the anvil of necessary in the public interest. Secondly, the expres-sion-necessary in public interest is not left wide or unbridled. It is controlled by the purpose of providing an efficient, adequate, economic and properly co-iodinated road transport service. These are four ingredients or quality of the purpose which the legislature obliges to be achieved without which the scheme would not be in the public interest. Thirdly, the scheme is not akin to complete nationalisation inasmuch as it permits its being only partially exclusionary of other persons or otherwise, Fourthly, the proposal to be converted into a finalised scheme must pass through the process of objections being invited, heard and determined in the manner contemplated by Section 100, (para 12)

       The power to prepare and publish a proposal regarding road transport service of a STU within the meaning of Section 99 is done in exercise of the executive power of the State. Under Section 99 read with Section 2(41), the Lt Governor while formulating the proposal would act on the aid and advice of the council of ministers. It is a policy decision to be taken in public interest as contemplated by Section 99. Section 99 is not a provision which requires the Governor to act in his discretion. (para 77) The hearing contemplated by Section 100(2) is not a matter of mere formality. The State Govt may have formed its own opinion on the necessity in the public interest for achieving the four-pronged purpose contemplated by Section 99 but that is not final. The legislature has chosen to provide the process for re-testing the correctness of the opinion so formed and that process consists of inviting the objections and affording an opportunity of hearing thereon before forming the final opinion. The geographical extent of the scheme (i.e. the routes which would be covered by the scheme) falls within the domain of policy decision which may not be capable of being judicially reviewed by the Courts but there are other aspects which fall within the scope of judicial review jurisdiction. The efficiency and adequacy aspects are to be kept in view for the purpose of deciding whether a complete or partial nationalisation of routes would do. At the cost of repetition, we may clarify that the judicial review is not concerned with policy aspect of exclusion whether it should be complete or partial but it is certainly concerned with the factors of efficiency and adequacy. All the four legs on which stands the superstructure of purpose are open to judicial review on the well settled principles governing the judicial review jurisdiction of the courts. The courts would not substitute their own opinion for the opinion of the State Government but they would certainly examine whether the objections were invited, whether an opportunity of hearing was given and whether the decision was taken baaed on the relevant consult rations, excluding the irrelevant ones. para 48)

       Receiving, considering and deciding the objections under Section 100 is not a power referable to the executive power of the Stale. Under Section 100 read with Section 2(41) of the Act, the Parliament has conferred a power on the Lt Governor and requires the Lt. Governor to act in his discretion. The nature of the function is quasi-judicial. Here Section 41 of the Govt of NCT of Delhi Act, 1991, is attracted, whereun-der the Lt Governor has to act in his discretion, the exercise being quasi judicial. (pr 78)

       The Lt Governor prepares and publishes the proposal under Section 99 read with Section 100(1) and receives, hears and decides the objections under Section 100 (2). So the authority proposing the scheme and deciding the objections is the same but the character of the two functions differs. The L Governor though head of the State is an executive head of the State exercising the executive power of the State under Section 99 but is merely ah administrative authority acting at his own discretion under Section 100. Inasmuch as the principles of natural justice must be complied with the nature of the power exercised by the Lt Governor under Section 100 becomes quasi-judicial. The procedure for receiving and considering the objections not provided by the statute itself can be devised. (pr. 78)

       A scheme once approved is a law. Consequently the function involved in initiating and finalising the scheme is partly legislative, partly executive and partly judicial. An executive function aiso involving quasi legislative and quasi judicial functions can be delegated as part of the executive functions.(pr.85) to be borne in mind that the hearing contemplated by Section 100(2) of the Motor Vehicles Act is an institutional hear-ing given by the Slate Govt (i.e. the Lt. Governor in a Union Territory); it is not a hearing by an individual. There is nothing wrong if the power to receive the objections and hearing the same was delegated to the officers. One who hears, prepares detailed notes and places the same for consideration before the one who decides along with the entire material available on the record. The principles of natural justice cannot be said to have been violated. (pr.86)

       The formation of the scheme under Section 99 and its approval or modification under Suction 100 must show the awareness on the part of those who are associated with the two processes, that is, proposing the scheme and approving it, that they have travelled the length and breadth of the issue before them, having collected all the relevant material and having given to it a serious thought intensively and extensively. We are unhesitatingly of the opinion that the decision making process adopted by the respondents falls utterly short of expectation in-built in Sections 99 and 100 of the Motor Vehicles Act.( pr 88 )

       However, we need not dwell further on the above said plea. It is not required. In the case at hand we have held that while hearing and deciding the objections under Sec-lion 100(3) of the Motor Vehicles Act, 1988, the Lt Governor was acting as an authority. He could have delegated the function of receiving and hearing the objections to an officer subordinate but this he never did. The three officers who heard the objections were not authorised to do so by the Lt Governor. The authorisation/delegation was by the Commissioner -cum-Secretary (Transport) who was neither acting on behalf of the Governor nor could have acted. A hearing by the officers who were not authorised to do so by the Lt Governor was no hearing in the eye of law and within the meaning of Section 100(2) of the Motor Vehicles Act.(pr. 87)

       Promissory Estoppel - Plea, requirements of — Not available against statute or change in policy.

       To found a plea of promissory estoppel there must be a promise held out and promisehaving altered his position to his disadvantage acting on such representation. There is no promise held out by the State to the ex-servicemen and unemployed graduates that they shall never in future be eliminated from road transport operation. At any particular point of lime in the past, guided by the consideration of devising some scheme for the welfare of the ex-servicemen and the unemployed graduate if the State chose to give them a preferential order or special treatment in the matter of allotment of permits by treating them as a class by themselves that would not mean that the privilege so conferred would be a lifetime privilege incapable of being withdrawn at any point of time in future. Promissory estoppel cannot be pleaded in face of a change of policy decision or a statute. (pr.92)