( 1 ) THIS petition under Article 226 of the Constitution of India challenges the legality of Rule 49-A of the Central Provinces and Berar Motor Vehicles Rules, 1940.

( 2 ) THE petitioner, Sardar Bantasingh, is a transport operator and carries on business in partnership, mainly at Jabalpur and Raipur, in the name and style of punjab Sikh Regular Motor Service and Jabalpur Development Transport Co. , jabalpur. The Raipur Transport Co. (Private), Ltd. , Raipur, which also carries On the same business and had made an application to be joined as a respondent, was allowed to anpear as an intervener and was heard. The respondents are (i) The state of Madhya Pradesh, (ii) The State Transport Authority, Madhya Pradesh, at jabalpur, and (iii) and (iv ). The Regional Transport Authorities at Jabalpur and raipur. The return has, however, been filed by the State Government alone, as It is mainly concerned with the dispute.

( 3 ) RULE 49-A of the C. P. and Berar Motor Vehicles Rules 1940, was made by the state Government in exercise of the powers conferred by Subsection (1) of section 68 of the Motor Vehicles Act 1939 (hereinafter called the Act), and was published in the official Gazette under Notification No. 879-1078-IV. MV, dated 2910-1956. It is in these terms:

"49-A. Where there are more than one applicant for a stage carriage permit over any route, routes or area, then other things being equal, a regional Transport Authority or the State Transport Authority, as the case may be, shall in deciding whether to grant or refuse a stage carriage permit, give preference to available unit. Explanation: For the purpose of this rule, a viable unit means an. operator who is in possession of more than 20 public service vehicles". The validity of this rule is challenged on two grounds, namely. (1) that it is in excess of the rule-making power of the State government under the Act and (2) that it is discriminatory and monopolistic. We shall take these points serially.

( 4 ) POINT No. (1 ). The law of the land, besides the common law and statute law. includes Orders in Council, rules, regulations or by-laws, made under statutory powers, which are compendiously described by the term subordinate legislation. So far as bylaws conforming with prescribed form are concerned, their validity depends upon the question of their reasonableness, or of their consistency with the general law or with the statute under which they are made. Rules made under a rule-making power conferred by a statute are, on the other hand, part and parcel of the statute itself, and, therefore, stand on a different footing: T. B. Ibrahim v. Regional Transport Authority, AIR 1953 SC 79 (A ). Dealing with subordinate legislation, apart from delegated legislation known as Administrative law, Craies in his treatise on Statute Law, 5th Edition, on page 273, observes as below: "the initial difference between subordinate legislation and statute law lies in the fact that a subordinate law-making body is. bound by the terms of its delegated or derived authority, and that Courts of law, as a general rule, will not give effect to the rules, etc. , thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the courts, the validity of delegated legislation as a general rule can be. The courts) therefore (1) will require proof that the rules have been made and promulgated in accordance with the statutory authority, unless the statute directs them to be judicially noticed; (2) in the absence of express statutory provision to the contrary, may inquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created, either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, if any, attached to the regulation, and it follows that the Court may reject it as invalid and ultra vires a regulation which fai

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