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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and K. L. Pandey, J.
PREMCHAND JAIN - Appellant
Versus
STATE OF M.P. - Respondents
Misc. Petn. 139 Of 1964
Decided On : 12/23/1964
The proviso to sub-section (3) of section 68-D does not apply to the publication of the proposed scheme for any inter-State route. The previous approval of the Central Government is necessary only in case of an approval scheme for any inter-State route. [Para 9
(2) Motor Vehicles Act, 1939-S. 68-D (1), Expln.-disharmony between the original sub-section and the Explanation added by the State Act-assent of the President obtained-the State Act shall prevail-Constitution of hdia-Arr.254 (2).
Under sub-section (1) or section 68-D as originally enact• ed by Parliament, any person affected could file an objection while under the Explanation inserted by the State Legislature limited the right to the classes of persons therein mentioned. This disharmony is there. But the State Act (No.2 of 1963) introducing this Explanation was reserved for the consideration of the President and received his assent under clause (2) of Article 254 of the Constitution. That being so, the Explanation shall prevail in the state. [Para 11
(3) Constitution of India-Arts. 154 (1) & 166 (3)-executive or quasi-judicial powers of the State Government-mode of exercise of-can be delegated to officers under Rules of Business.
Article 154 (1) of the Constitution provides that the executive power of the State, which is vested in the Governor, shall be exercised by him directly or though officers sub-ordinate to him in accordance with the Constitution. Similarly, Article 166 (3) provides that the Governor shall make rules for the more convenient transaction of business of the Government or the State and for allocation of such business among Ministers.
The business of the Government of a State includes its statutory and quasi-judicial. functions and the Ministers or other subordinate officers may be authorised to discharge such functions in accordance with the Rules of Business made under Art. 166 (3) of the Constitution, though this would not amount to delegation in the sense of divestiture of responsibility. [Para 12
(4) Motor Vehicles Act, 1939-S. 68-D (2) & (2-a)-powers under sub-section (2)-not excluded by sub-section (2-a)-can be exercised independently of sub section (2-a)- word 'may' in sub-section (2-a)-does not mean 'shall'.
There is nothing in Chap. IV-A or in the subject matter to indicate that the word 'may' in sub-section (2-a), should be regarded as equivalent to 'shall'. The power given by subsection (2) existed before the enactment of sub-section (2-a) and it can be exercised apart 'from and independently of the provisions of sub-section (2-a). [Para 13
(5) Motor Vi-hides Act, 1939-8. 68-D (2) & (2-a)-power to hear objection to schemes delegated- does not include the power to approve and modify the schemes-such powers exercised by the authority hearing objections-schemes in-valid-Rules of Business-R.13, Expln.
The Special Secretary was authorised only to dispose of objections But he was not authorised to modify or approve the schemes under the Act. The power to dispose of objections did not include authority to approve or modify schemes. The principle that a person authorised to do an act must have authority to fulfil all conditions and also perform all duties would not apply, a power to approve or modify schemes was not given to the Secretary
The assumption of regularity in favour of a duly authenticated order would have no application in such a case.
The schemes approved and modified by the Special Secretary were vitiated. [Paras 16-19
(6) Constitution of India-Art. 166 (2)-scope of-validity of on order when may be challenged.
When the two conditions laid down in Art. 166 (2) are satisfied, the order issued cannot be challenged on the ground that it was not made or executed by the Governor. This does not preclude a challenge so the order on any other ground, eg., that the condition precedent to the validity of the order has not been fulfilled. [Para 18
( 1 ) THIS petition under Articles 226 and 227 of the Constitution is directed against:
(i) the proposed Scheme No. 2, as prepared under Section 68c of the motor Vehicles Act, 1939 (hereinafter called the Act) by the Madhya pradesh State, Road Transport Corporation (to be called hereafter as the transport Corporation) and published in the State Gazette dated 1 March 1963; (ii) the order dated 25 June 1963 whereby R. S. Shukla, Special secretary in the Home Department, disposed of the objections preferred against the aforesaid Scheme and modified it; (iii) the final publication, after previous approval of the Central government, of the approved Scheme in the State Gazette dated 7 february 1964 as required by Section 68d of the Act, and (iv) the order dated 17th March 1964 passed under Section 68f (2) of the Act by which the Secretary, Regional Transport Authority, Gwalior, cancelled the permit held by the petitioner for the Lashkar-Barai route and required him to surrender that permit. The petitioner has, in addition, challenged the vires of the Explanation inserted under Section 68d (1) of the Act by the amending Act 2 of 1963 and the validity of rule 6 of the Rules framed under Section 681 of the Act.
( 2 ) OTHER existing operators have claimed similar reliefs in regard to Scheme No. 2 in Miscellaneous Petitions Nos. 140, 141, 142, 143, 144, 145, 146, 147, 148, 155, 277 and 278 of 1964. For like reliefs, similar Miscellaneous Petitions Nos. 149, 150. 151, 152, 153, 154, 156, 280 and 281 of 1964 in regard to Scheme No. 4, nos. 52 and 112 of 1964 in regard to Scheme No. 5, Nos. 157, 160 and 214 of 1964 in regard to Scheme No. 7 and Nos. 124, 133, 213, 219 and 275 of 1964 in regard to Scheme No. 9 have also been made by the existing operators affected by those Schemes. This order shall dispose of all these petitions also.
( 3 ) AS already indicated, these petitions call in question the various steps taken under the machinery provisions contained in Chapter IVA of the Act and the rules made thereunder for approving certain schemes providing for the Slate Transport undertaking to carry on the passenger transport business on certain routes to the complete or partial exclusion of all other persons, including the existing operators. Scheme No. 2 relating to certain routes round about Gwalior, as originally prepared, was published in the State Gazette dated 1st March 1963 in accordance with the requirements of Section 68c of the Act. Scheme No. 4 relating to certain routes round about Morena and Bhind, Scheme No. 5 relating to certain routes starting from Chhindwara, Scheme No. 7 relating mainly to the Sagar-Kareli-Piparia route and Scheme no. 9 relating to certain routes round about Sagar and damoh were similarly published on 7th June 1963, 30th August 1963 and 13 november 1963 respectively.
( 4 ) EVEN before these Schemes were published, Section 68d of the Act was amended by the Motor Vehicles (Madhya Pradesh Amendment) Ordinance, 1962 (No. 7 of 1962) which was subsequently replaced by the Motor Vehicles (Madhya pradesh Amendment) Act, 1962 (No. 2 of 1963 ). Section 68d, as originally enacted, read as follows: "68d. (1) Any person affected by the scheme published under Section 68c may, within thirty days from the date of the publication of the scheme in the official Gazette, file objections thereto before the State government. (2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport undertaking to be heard in the matter, if they so desire, approve or modify the scheme. (3) The scheme as approved or modified under Sub-section (2) shall then be published in the official Gazette by the State Government and the same shall thereupon become final and shall be culled the approved scheme and the area or route to which it relates shall be called the notified area or notified route; provided that no such schem
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