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TMI Blog1976 (12) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... onding to the public needs and the State s functional role mandated by the Constitution, has evolved new approaches to old problems and given up dogmas which once prevailed during laissez faire days but now have become obsolete because of the welfare economy which has been nurtured. This radical change in jural perspectives has its impact on canons of statutory construction and on verdicts about the vires of legislation. All these generalities acquire appropriate application in the present cases which arise under the Motor Vehicles Act, 1939 (Act IV of 1939) (the Act, or short) from challenges before the High Court without avail, by private operators, of the permit granted to the State Transport Undertaking (STU) by the transport tribunals. The validity of r. 155A of the Motor Vehicles Rules framed under s. 68 of the Act is in issue. The core of counsel s submissions is two-fold: (1) Is rule 155A, assigning five marks for a State undertaking, not family violative of s 47 of the Act? Does the later amendment to the proviso to s. 47 giving preference to State transport systems, other things being equal, impliedly repeal, as contrary to its content, rule 155A which gives better a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from the quasi-judicial authority charged with the responsibility for choice. We may read the relevant part of s. 47(1) here: (Krishna Iyer, J.) 47. Procedure of Regional Transport Authority in considering application for stage carriage permit,-- (1) A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely :- (a) the interest of the public generally; X X X X Provided that other conditions being equal, an application for a stage carriage permit from any State Transport Undertaking or a Cooperative Society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners. X X X X The interest of the public generally, is often-times too vague and, generally, the exercise of discretion deserves to be canalised to guide the statutory bodies and to facilitate better appreciation by the applicants of the claims that may ordinarily be considered by transport tribunals. From this angle, the Tamil Nadu State has framed rules. expressly subordinated to the paramoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which may be useful to run the transport service efficiently. (C) Workshop facilities.--Two marks _shall be awarded to the applicant who is in possession of workshop facilities as given in Explanation under item (2)(iv). (D) (i) Five marks shall be awarded to the applicant falling within the proviso to clause (c) of section 62-A of the Motor Vehicles Act, 1939, i.e., State Government, Central Government or any Corporation or Company owned by the Central Government or State Government. (ii) The applicant who operates not more than nine stage carriages excluding spare buses, shall be awarded marks as follows :-- (1 ) Applicant operating one to three buses--4 marks. (2) Applicant operating four to six buses--3 marks. (3) Applicant operating seven to nine buses--2 marks. Provided that if a new entrant has made an application for a short route other than town service route, no marks shall be awarded to any applicant under clause (B), (C) and (D) (ii). The ground of invalidation urged is that there is no justification for grant of 5 marks to an applicant falling within r. 155A (3)(D)(1) solely for the reason that it is owned by the State Government. Ownership i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur pie-bald economy and pluralist society, responds to societal challenges and constitutional changes. TO miss the ideological thrust of our Constitution and the economic orientation of our nation while construing legislation relating to public law and scanning them for their validity is to fail in understanding the social philosophy that puts life and meaning into the provisions of the Act. The law, being realistic, reckons with the socialist sector covering State and co-operative enterprises. The special status of a government-owned transport undertaking in a Welfare State is obvious. It has large resources to cater to the traffic needs. It has, within its range of influence and coordination. many services useful to the travelling public, which may be beyond the reach of private ownership. Its functional motto is not more profits at any cost but service to citizens first and in a far larger measure than private companies and individuals, although profitability is also a factor even in public utilities. Its sensitivity to community welfare and encouragement of labour participation, its accountability to the Government, the legislature and the public put it in a category by itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elves to public audit and criticism and inquest by legislative committees and the Houses of the legislature. Profits are their concern but, more importantly, public weal is their commitment. Such is the philosophy of the State sector in our socialistic pattern of society. Article 19(6)(ii) and Art. 38 of the Constitution, s. 47 (1 ), especially the proviso, and Charter IVA of the Act (now governed by the impregnable Ninth schedule to the COnstitution) throw light on this policy of the paramount law. Here, therefore, the rule making authority, having regard to all relevant circumstances, has decided to award to a State Transport Undertaking 5 marks. This is not an arbitrary stroke of favouritism because there are many promotional factors bearing on the interest of the travelling public which a State enterprise qua State enterprise will, but a private enterprise qua private enterprise will not, take care of. (Krishna lyer, J.) After all, private enterprise has its primary motivation in profit, although, under State direction, it is becoming socially responsive. The superiority in many respects (not all respects) of State Transport Undertakings, in the legislative judgment, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort Authority. For, the marks, these authorities will remember, sway the exercise of judgment, not supersede it. It is conceivable that the pecularities of a route, the calamitous performance in an area of a State transport system, the outstanding special facilities of a particular private operator or other like feature may outweigh the mechanics of marks. After all, many qualifications, advantageous to the travelling public, may be thought of, untouched by the rigid marking moulds. They are not irrelevant and may still be regarded by the tribunals. All this leads to the conclusion that marks shape but do not clinch the ultimate selection. The public is the consumer; its plenary service is the final test. Therefore, these is nothing in r. 155A deprivatory of the discretion vested by s. 47(1).This interpretative footnote must allay the apprehensions voiced by counsel. Nor are we convinced that there is no possibility of a private operator exceeding the minimum marks of a State Transport Undertaking. Moreover, the marking formula lacks flexibility. Merely because the State Transport Undertaking has no residence or workshop on the route, although its attention and ability to react a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court in the Parbhani Transport Co-operative Society Ltd. v. the Regional Transport Authority, Aurangabad Ors ([1960] (3) S.C.R. 177.) with specific reference to the argument advanced there that, as Chapter IV-A is meant for running its own buses by the State by nationalisation of Motor Vehicle Road Transport Services, it was not open to the State to apply for permits at all under Chapter IV of the Act which applies to private operators only. This argument,repelled by this Court there has been put forward before us in a somewhat different and attenuated form by Mr. Chitaley. Nevertheless, the basic rule of interpretation submitted to us is the same as the one which was relied upon in this Court in the Parbhani Transport Co-operative Society s case (supra) in an attempt to exclude the State Transport Undertaking altogether from entry into what was sought to be made out to be the exclusive preserve of private operators. Before us, it is contended that exclusion of private operators could only be brought about by resorting to a duly framed scheme, on appropriate grounds given in Section 68C of the Act, but not indirectly by framing the kind of rule which has the effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transport Undertakings do not have individual owners or Managing Directors, for whom these marks could be allotted, even though they may have technically much better qualified personnel to attend to their motor vehicles, the impugned Rule 155A(3)(D)(D could be justified as meant only to place State Transport Undertakings on a footing of possible equality with private operators in competing. for permits to be granted under Section 47(1) read with Section 42(3) of the Act and to do no more. Furthermore, Rule 155A(3)(D)(i) occurs in a group for marks to be assigned on the basis of the number of vehicles run by the operators. In any case, it was submithttp:// ted that it is a fair provision as a rough guide but is not decisive by any means. It seems to me that the contention advanced on behalf of the State that the impugned part of Rule 155A enables provisions of the proviso to Section 47(1), read with Section 42(3), to be worked a manner in which the statutory provisions were intended to overate and does not really authorise a circumvention or infringement of the provisions of Chapter IV of the Act, is well founded. The manner in which provisions of Chapter IV of the Act were meant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otor transport, so as to avoid wastage of national wealth, even though it takes the form of investments by individual entrepreneurs, or, its object may even be prevention of undue hardhttp:// ship to private operators. Other reasons for permitting combined services can be. given. It is, however, possible only under Chapter IVA to exclude private operators completely. But, unless any rule relating to provision of motor transport under chapter IV has that effect it cannot be asserted that what can be done only by resorting to Chapter IVA is being attempted under the provisions of Chapter IV. The rule in Nazir Ahmad s case (supra) applies only to cases where there is a single specified mode laid down for doing something in exercise of the legal power to do it. In that event, the specified mode-may, negatively, operate as a prohibition against what is not prescribed at all and is outside the statute. But, it could not apply to a case where two modes of doing the same thing are provided for by a statute itself. Nor, as I have indicated above, could it be said that what is to be done under Chapter IV and what can be done under a scheme under Chapter IVA are really the same simply beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such operators, is in force. In the face of the clear words of proviso to Section 47 (1 ) of the Act, enabling State Transport Undertakings to provide Transport facilities in open competition, and of Section 68(C) in Chapter IV-A of the Act, enabling the exclusion complete or partial of private operators from particular areas or routes, such an argument cannot be put forward at all before us under some preconceived notions even after these very notions had been rejected by this Court in the Parbhani Transport Co-operative Society Ltd s case (supra). It is clear that the two chapters of the same Act are both intended to subserve the interest of the public generally in any area in the country, That is the integrating or governing principle evident from the language of the Act itself in both Chapter IV and Chapter lV-A of the Act. An argument advanced on behalf of the appellant seemed to be that Rule 155A(3)(D)(i) results in defeating the mandate of Section 47(1) of the Act, that the Regional Transport Authority must, as explained repeatedly by this Court, keep the interest of the public generally in the fore-front. As already indicated by me, this argument really proceeds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonably be deemed to be in a position of equality as regards comparative advantages offered by it. As there cannot, between such dis-similar operating units, be comparability of conditions or advantages offered unless some rule is flamed and applied which could make comparison reasonably possible, it seems to me that Rule 155A(3) (D)(i) is justifiable on the ground that it makes what is legally contemplated and permissible also practicable. The proviso. to Section 47 (1 ) reads as follows: Provided that other conditions being equal, an application for a stage carriage permit from any State Transport Undertaking or a co-operative Society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners. An examination of this proviso shows that an. equality of other conditions is contemplated before any question of giving preference, merely on the ground that the applicant is the State Transport Undertaking or a Cooperative Society, can arise. If other conditions are equal, then, undoubtedly, the choice as between such equals must, if the proviso is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose or need is or could be, the danger is that we may be injecting a subjective notion or purpose of our own into what is, after all, a legal question of construction or interpretation, according to well recognised principles, although it may be necessary, in exceptional eases, to explain or fortify the interpretation adopted in the light of so well understood and. well known a purpose or theory that we could take judicial notice of it and refer to it. The exposition of the well known purpose or theoretical foundation must, however, generally, flow from and explain an interpretation adopted, on the strength of legally acceptable and accepted canons of construction, if we are to avoid the danger of an a priori determination of the meaning of a provision based on our own pre-conceived notions of an ideological structure or scheme into which the provision to be interpreted is somehow fitted. The path of judicial certainty and predictability has to be paved with well settled principles of construction and interpretation. We cannot let it develop into a slippery slope be-set with hazardous possibilities. The science of statutory construction and interpretation--I think can call it t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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