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TMI Blog1965 (10) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... 1964, the State Government purporting to exer- cise powers under cls. (gg) and (i)_ of sub-rule (2) of r. 131 of the Defence of India Rules, 1962 (hereinafter referred to as the Rules) issued a notification by which it was directed that with effect from October 1, 1964, no private operators shall ply any vehicle, or class of vehicles for the carriage of persons or goods on, and no vehicle or class of vehicles operated by the private operators shall pass through, Tanakpur-Dharchula route of Kumaon region . It was further directed in the notification that on this route, the U.P. Government Roadways vehicles alone shall ply for the carriage persons and goods. This result of this notification was to stop plying of all vehicles belonging to the members of the union on, the route in question and this led to the filing of the two petitions in the High Court. The union was party to both the petitions, which were in the same terms. In the petitions the appellants challenged the notification of' August 17, 1964, and this challenge was based on four grounds. In the first place, it was contended that no order of the kind passed on August 17, 1964 could be passed under r. 131 (2) (gg) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so decided that the management of the union should be asked to screen their employees before they were employed and the police would be ready to render assistance in the matter of verification of antecedents of persons to be employed by the union. Finally, it was also decided that the Transport Commissioner should consider the question of running buses exclusively owned by Government on the border routes. Further meetings were held in January and August 1961 in which it was pointed out that it was difficult to eliminate undesirable elements from transport organizations on account of existing labour laws. In the meantime, more reports had come in of undesirable activities by workers of transport organizations in the border region. Therefore, in May 1962, it was tentatively decided by the State Government that the real solution to the problem lay in the operation of transport in the border areas by Government alone. In the meantime the Transport Commissioner informed the Government that as the union was a private concern, the transport department could do nothing itself to eliminate these anti- national elements from the union and that the management of the union also appeared to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not very satisfactory; but on the whole it came to the conclusion that the order had been issued after the necessary satisfaction and consequently the petitions were dismissed. The appellants then obtained certificates from the High Court; and that is how the matter has come up before us. The same four points which were raised before the High Court have been raised before us on behalf of the appellants. We shall first consider the contention that the impugned order is beyond the power of the State Government under r. 131(2)(gg) and (i). Rule 131 provides for control of road and water transport. Sub rule (2) thereof with which we are particularly concerned reads thus : (2) Without prejudice to any other provision of these Rules, the Central Government or the State Government may by general or special order- (a) to (g) (gg) provide for prohibiting or restricting the carriage of persons or goods by any vehicle or class of vehicles, either generally or between any particular places or on any particular, route; (h) (i) make such other provisions in relation to road transport as appear to that Government to be necessary or expedient for securing the defence of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich lays down that during the continuance in force of the Act, the Motor Vehicles Act, 1939, shall have effect subject to certain provisions specified in cls. (a) to (f). The provisions in cls. (a) to (f) make certain changes in the provisions of the Motor Vehicles Act with which we-are not concerned in the present appeals. The argument however is that this provision shows that the Motor Vehicles Act will have full force and effect subject to the amendments mentioned in cls. (a) to (f) and therefore it was not open to the State Government to take over the route in question and exclude private operators altogether without paying compensations provided in chapter IV-A of the Motor vehicles Act. Attention has also been invited to s. 68-B of the Motor Vehicles Act, which appears in Ch. IV-A and provides that the provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law . It is urged on a combined reading of s. 6 (4) of the Act and s- 68- Motor Vehicles Act that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Chapter IV of this Act with the words in any other law for the time being in force that Ch. IV-A was to prevail over Ch. IV of the Motor Vehicles Act or over any other law of the same kind dealing with motor vehicles or for compensation. On the other hand s. 43 of the Act emphatically says that the Act will prevail over any enactment other than the Act, and this suggests that the legislature intended that the emergency legislation in the Act will be paramount if there is any inconsistency between it and any other provision of any other law whatsoever. Such a provision is understandable in view of the emergency which led to the passing of the Act. Another argument under S. 6 (4) of the Act is that by that provision the Motor Vehicles Act must be held to derive its authority from the Act and thus be treated as if it was a part of the Act. Emphasis is laid on the words shall have effect in this connection and it is urged that by virtue of these words, the Motor Vehicles Act must be deemed to derive its authority from the Act and therefore must be treated as part thereof. In consequence, it is said that s. 43 which lays down that the Act and the Rules thereunder shall have effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssets of the commercial undertaking nor has it in any way interfered with the working of the commercial undertaking; all that the order provides is that the union shall not ply its vehicles on a particular route. This in our opinion does not amount to destroying the commercial undertaking which is left untouched by the order. All that may be said to have resulted from the order is that the profit making capacity of the commercial undertaking might have been reduced to a certain extent. That however does not in our opinion mean that the commercial undertaking has been destroyed. We may add that even if the profit making capacity of the commercial undertaking was lost due to one line of business being stopped that would not amount to destruction of the commercial undertaking, which could take up other business. So long as the order under cl. (gg) of r. 131(2) comes within the terms of that clause, it will be good even though it may diminish the profit making capacity of a commercial undertaking or even reduce it to nothing in a particular -line of business. We are therefore of opinion that the impugned 'order is in accordance with the terms of cl. (gg), sub-r. (2) of r. 131 and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct. In view of the facts mentioned therein there can be no doubt that the action under r. 131(2) (gg) was taken as stated in the order for the purpose of the defence of India, civil defence, the public safety, the maintenance of public order and the efficient conduct of military operations, and for maintaining supplies and services essential to the life of the community. It is true that at one stage the State Government was thinking of nationalising this particular route and if that scheme had gone through, action would have had to be taken under Ch. IV-A of the Motor Vehicles Act. But the reports as to sub- versive activities which were thought to be prejudicial to the defence of India had started to come in as far back as 1960 long before the 'Chinese invasion of India and the matter was under consideration for almost four years before the impugned order was passed. The question became urgent after the Chinese invasion of India in October 1962. Even so, the State Government explored various means of stopping activities prejudicial to the defence of India on the border between India and China. There can be no doubt that the matter was considered from all aspects and event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants more than was necessary for the purpose to be attained. This brings us to the last point that has been urged on behalf of the appellants, namely, that it was not proved that the State 'Government was satisfied that it was necessary and expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order and the efficient conduct of military operations and for maintaining supplies and services essential to 'the life of the community that the order should be passed. It does appear that the affidavits filed in the High Court were not quite clear on this point. Therefore we gave an opportunity to the State Government to file an affidavit to show that the satisfaction of the State Government necessary before passing an order of this kind was arrived at. In consequence an affidavit was filed on behalf of the State Government on August 16, 1965 by the Deputy Secretary (Home Department) U.P. Government, Lucknow. In that affidavit it has been stated that under the rules relating to the allocation of business, matters relating to the subject matter which led to the issue of the impugned notification have to be submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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