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PETITIONER: T. B. IBRAHIM

       Vs.

RESPONDENT: REGIONAL TRANSPORT AUTHORITY,TANJORE.

DATE OF JUDGMENT: 05/12/1952

BENCH: HASAN, GHULAM BENCH: HASAN, GHULAM SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. AIYAR, N. CHANDRASEKHARA BOSE, VIVIAN

CITATION:  1953 AIR   79            1953 SCR  290  CITATOR INFO :  R          1959 SC 300  (14)  F          1965 SC 458  (9,10,15)  E          1967 SC1368  (11)  R          1973 SC2420  (4)  F          1987 SC1339  (5,6,7)

ACT:   Madras  Motor Vehicles Rules, 1940, r.  268-Amendment  in 1950 empowering Transport Authority to alter starting places or  termini  of vehicles-Whether  ultra  vires-Madras  Motor Vehicles  Act, 1939, ss. 76, 68(1) and (2)  (r)-Constitution of  India,  1950, Art. 19 (1) (g)-Infringement of  right  to carry on profession-Reasonableness of restriction.

HEADNOTE:   Rule  268 of the Madras Motor Vehicles Rules, 1940, as  it originally stood did not empower the Transport Authority  to alter from time to time the starting places and termini  for motor  vehicles.   The  rule was amended in 1950  so  as  to empower  the Transport Authority to do so, and after  giving notice to the appellant who was the owner of a bus-stand  in a  municipality, which was being used for several  years  as the  starting place and terminus for motor buses  plying  to and from the municipality, the Transport Authority passed  a resolution changing the starting place and terminus for  the convenience of the public.  The appellant applied for a writ of  certiorari contending that r. 268 as amended  was  ultra vires as it went beyond the rule-making powers conferred  by s.  68  (2)  (r)  of the Motor Vehicles  Act  and  was  also repugnant to art. 19 (1) (g) of the Constitution:    Held,  (i) that the fixing and alteration  of  bus-stands was  not  a purpose foreign to the "  control  of  transport vehicles ", the purpose for which rules could be made  under s.  68  (1),  and the power to make  rules  prohibiting  the picking up or setting down of passengers at specified places mentioned in s. 68 (2) (r) necessarily included the power to alter the situation of bus-stands, and r. 268 as amended did not therefore go beyond s. 68 (2) (r) ;     (ii)  the  restriction placed upon the use of  the  bus-

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stand  for  the  purpose  of  picking  up  or  getting  down passengers to or from outward journeys cannot be  considered to  be an unreasonable restriction on the right to carry  on any  profession, trade or business of the appellant, and  r. 268  was not in any way repugnant to art. 19 (1) (g) of  the Constitution.    The  expression  " duly notified stand "  in  the  Madras Motor  Vehicles  Act  means a stand  duly  notified  by  the Transport Authority.  There is no warrant for the view  that it means a stand 291 notified by the municipality.  The provisions of s. 270 (b), (c)  and  (e)  do  not affect the  power  of  the  Transport Authority to regulate traffic control or impose restrictions upon the licence of cart-stands.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 16 of 1952.    Appeal  from  the Judgment and Order dated  February  6, 1951, of the High Court of Judicature at Madras  (Rajamannar C.  J. and Somasundaram J.) in Civil Miscellaneous  Petition No.  11307 of 1950, arising out of Order dated November  10, 1950, made in C. No. 2216-A-3-49 on the file of the Regional Transport Authority, Tanjore. G.   R. Jagadisa Iyer for the appellant. V.   K.  T.  Chari,  Advocate-General  of  Madras,  (V.   V. Baghavan, with him) for the respondent.   1952.   December  5.  The  Judgment  of  the  Court   was delivered by  GHULAM HASAN J.-This appeal brought by special leave under article 136 (1) of the Constitution is directed against  the order  dated  February  6,  1951,  of  the  High  Court   of Judicature  at  Madras,  dismissing  the  petition  of   the appellant under article 226, praying for the issue of a writ of  certiorari to quash the order dated November  10,  1950, passed by the respondent in the following circumstances :-  The  appellant  is  the lessee of a site in  the  town  of Tanjore  in  the State of Madras upon which he  has  a  bus- stand.   The  bus-stand originally belonged to  the  Tanjore Municipality  and the appellant merely held a  licence  from that authority.  Later on, the title of the Municipality  to the  site  was questioned by a third party and  in  a  civil litigation  which ensued the title of the  Municipality  was negatived.  Thereupon the appellant obtained the  lease-hold right of the site from the true owner and constructed a bus- stand conforming to the design approved by the Municipality. Besides sheds for passengers and vehicles it provided  other amenities.  It was situate near the Railway Station and most of the buses leaving Tanjore for 38 292 out-station  journeys  used  this  bus-stand  both  as   the starting  point  and as the terminus.  It appears  that  the site  was approved as convenient and suitable for  the  bus- stand both by the Municipality and the District  authorities for buses plying from and into Tanjore.  The appellant  held the  licence for running the bus-stand year after year.   In 1939 the Municipality granted him a licence for four  months only  instead of one year as required by section 270 (c)  of the Madras Municipalities Act (V of 1920), and the appellant succeeded  in  vindicating  his right  for  a  whole  year’s licence  in  the  Civil Court by obtaining  the  relief  for injunction  and  an order directing the issue of  a  licence

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against the Municipality for 1940-41.  The appellant carried on the business without let or hindrance until 1950 when the Municipality  refused  to renew his  licence,  whereupon  he obtained  a  mandatory  injunction  from  ’the  Civil  Court directing  the Municipality to grant him a licence  for  the year 1950-51.  This decree was passed on October 7, 1950.    On  February 21, 1950, however, the  Regional  Transport Authority,  Tanjore, which is the respondent in the  present appeal,  declared  the bus-stand as unsuitable  with  effect from  April  1,  1950,  and altered  the  starting  and  the terminal points from that date.  This order resulted in  the closing  of the appellant’s bus-stand.  This decision  which was   given   by  means  of  a  resolution   was   confirmed subsequently by another resolution passed on March 31, 1950. The  appellant challenged the validity of these  resolutions by a petition under article 226 before the Madras High Court on the ground that they were passed without jurisdiction and were  contrary to the principles of natural justice as  they were  passed  without notice to the  appellant  and  without giving  him  an  opportunity  to  defend  his  right.    The resolutions  purported to have been passed under section  76 of the Motor Vehicles Act, 1939, which runs thus:-   "  The Provincial Government or any authority  authorized in  this  behalf  by  the  Provincial  GovernMent’  may,  in consultation with the local authority 293 having  jurisdiction in the area concerned,determine  places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places  at which public service vehicles may stand either  indefinitely or  for  a specified period of time, and may  determine  the places  at  which  public service vehicles may  stop  for  a longer time than is necessary for the taking up and  setting down of passengers."   The Division Bench of the Madras High Court consisting of the learned Chief Justice and another learned Judge  quashed the two orders as prayed for by the appellant on the grounds that  the orders were passed ex parte, and that  section  76 did  not authorize, the respondent to close  the  bus-stand. In the opinion of the Bench, section 76 deals with provision for parking places and halting stations and has no  applica- tion to a permanent bus-stand which is a sort of a radiating centre  of  all the bus traffic for the town.  It  was  held therefore  that the Regional Transport Authority  could  not under section 76 fix starting and terminus places for motor- buses.    Reference  was made, in the course of the arguments,  to rule  268,  Madras  Vehicles Rules, 1940,  and  the  learned Judges  observed  that  though the  rule  does  empower  the Transport  Authority  to  fix starting  places  and  termini between which public service vehicles other than motor  cars shall  be permitted to be used, but that this could be  done only  if  starting places and termini had not  already  been fixed in accordance with the provisions of any statute.   In the  present  case  as  these  had  already  been  fixed  in accordance  with rule 27-D, Motor Vehicles Rules, 1923,  the Transport  Authority could not fix new starting  places  and termini  under  rule 268 of the Rules passed in  1940.   The Bench pointed out that the rule was defective and would lead to  an  impasse if the starting places and  termini  already fixed become unsuitable and have to be shifted.  Accordingly they  suggested-that  the  rule  should  be  amended  and  a provision introduced conferring on the appropriate 294 authority the requisite power to alter from time to time the

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starting places and termini.  See T. E. Ebrahim Saheb v. The Regional Transport Authority Tanjore(1).  It  appears that within two months of the decision of  the High  Court rule 268 was amended by the Government.   Before the  decision of the High Court was given the bus-stand  was shifted to a place belonging to the Municipality in  another area.  Rule 268 as it originally stood ran thus:-   "  In  the case of public service  vehicles  (other  than motor  cabs)  if starting places and termini have  not  been fixed in accordance with the provisions of any statute,  the transport authority may, after consultation with such  other authority as it may deem desirable, fix starting places  and termini between which such vehicles shall be permitted to be used  within its jurisdiction.  A list of such places  shall be  supplied by such authority to every holder of a   permit for such vehicles.   When  such  places have been fixed,  every  such  vehicle shall start only from such places."  By  the  amendment  the words "  if  starting  places  and termini   have  not  been  fixed  in  accordance  with   the provisions  of any statute " were deleted, and the  words  " and after notice to the parties affected, fix or alter  from time  to time for good and proper reasons," were added.   As amended, the rule runs thus:-   "  268.   In the cage of public service  vehicles  (other than   motor  cabs)  the  transport  authority   may   after consultation  with such other authority as it  may  consider desirable, and after notice to the parties affected, fix  or alter  from  time to time for good and proper  reasons,  the starting  places  and termini between  which  such  vehicles shall  be permitted to be used within its  jurisdiction.   A list  of such places shall be supplied by such authority  to every  holder of a permit for such vehicles at the  time  of grant of or renewal of permits. (1)  A.I.R. 951 Mad. 419. 295 When  such places have been fixed every such: vehicle  shall start only from such places."   The  respondent then issued a notice to the appellant  on October 25, 1950, to show cause why the bus-stand should not be  shifted,  the  grounds  given being  that  it  was  -not satisfactorily  maintained  and was situated  in  a  limited space  which  was inadequate to accommodate  all  the  buses using  the  stand  and  that  it  did  not  permit  of   any improvements being carried out.  The appellant filed a  long written  statement objecting to the notice  and  challenging the grounds, whereupon the respondent issued a fresh  notice on  November  2, 1950, in which the  original  grounds  were dropped and were substituted by the ground "from’ the  point of convenience of the travelling public".  After hearing the appellant   and  the  Municipality,  the  Board   passed   a resolution  on November to, 1950, that for good  and  proper reasons,  namely, the convenience of the travelling  public, the  Transport Authority had resolved to alter the  starting places  and  termini of all public service  vehicles  (other than  motor cabs) arriving, at and proceeding  from  Tanjore from  the existing bus-stand owned by the appellant  to  the Municipal bus-stand in another area of the town.  This order led  to  another petition being filed in the High  Court  at Madras, praying for a writ of certiorari under article  226. The appellant questioned the jurisdiction of the   Transport Authority  to pass the order in question.  It was  contended before  the High Court that rule 268 as amended  was  itself ultra vires, firstly, because it was beyond  the  rulemaking power conferred by section 68, sub-section (r), of the Motor

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Vehicles  Act,  and  secondly because it  was  repugnant  to article   19(1)(g)   of  the   Constitution.    Both   these contentions were rejected by the High Court and the petition was dismissed.  The  contentions  raised before the High Court  have  been repeated before us.  We are satisfied that there is no  good ground for differing from the view taken by the High  Court. The Motor Vehicles Act contains 10 Chapters.  Chapter IV  of the Act deals with 296 control  of transport vehicles.  Section 4 7 (1)  lays  down that  the  Regional Transport Authority shall,  in  deciding whether  to  grant or refuse a stage carriage  permit,  have regard to the following matters, namely, (a) the interest of the public generally; (b) to (f)................................................    Section  48 says that the Regional  Transport  Authority after consideration of the matters set forth in section  47, may  attach  to  a  stage  carriage  permit  any  prescribed condition  or any one or more of the  following  conditions. Various conditions are set out one of which (v) is  material for  our  purposes.   It  is to the  effect  "  that  within Municipal  limits and in such other areas and places as  may be prescribed, passengers shall not be taken up or set  down at  or except at specified points." The material portion  of section 68 may be set out here:- "(1) A Provincial Government may make rules for the   purpose of carrying into effect the provisions of this    Chapter.   (2)    Without  prejudice  ’to  the  generality  of   the foregoing  power, rules under this section may be made  with respect to all or any of the following matters, namely:-   (r)    prohibiting  the  picking up or  setting  down  of passengers  by  stage -or contract  carriages  at  specified places  or in specified areas or at places other  than  duly notified  stands or halting places.................. ; "   It  is  obvious from a plain reading of  sub-section  (1) that the Government has got full power to make rules for the purpose of carrying into effect the. provisions contained in Chapter IV relating to the control of transport vehicles and according  to  subsection  (2), without  prejudice  to  this power,  the  Government has the power to  frame  rules  with respect  to matters set out in sub-sections (2) (a). to  (2) (za).   It  is  significant to note that the  Act  does  not follow the ordinary mode of providing at the end of the  Act that the Government is empowered to make rules for the 297 purpose  of carrying into effect the provisions of  the  Act but  at the end of each of the Chapters,  including  Chapter IV, the power has been reserved to the Provincial Government to  make rules for-the purpose of carrying into  effect  the provisions  of  the Chapter.  The purpose of Chapter  IV  is described   by  the  compendious  expression   "control   of transport   vehicles"  and  the  Provincial  Government   is invested with plenary powers to make rules for carrying  out that  purpose.  Keeping in view the purpose  underlying  the Chapter  we  are  not prepared to hold that  the  fixing  or alteration of bus-stands is foreign to, that purpose.   It was contended that section 68, sub-section 2(r),  does not confer the power upon the transport authority to  direct the  fixing or the alteration of a bus-stand and  that  rule 268  of the rules framed under that section was,  therefore, ultra  vires.   We  are  not  prepared  to  accede  to  this contention.   Sub-section  2(r) clearly  contemplates  three definite situations.  It prohibits the picking up or setting down of passengers

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(i)  at specified places (ii) in specified areas, and (iii)     at  places  other  than duly  notified  stands  or halting places.   If the power to make rules in regard to these, matters is given  to the Government, then it follows that  a  specified place  may be prohibited from being used for picking  up  or setting down passengers.  This will inevitably result in the closing  of that specified place for the purpose of  picking up  or  setting down of passengers.  Similarly  a  specified area  may be excluded for the same purpose.  The  expression "duly notified stands" is not defined in the Act, but it  is reasonable to presume that a duly notified stand must be one which  is  notified by the Transport Authority and  by  none other.  There is no warrant for the presumption that it must be  notified  by the Municipality.’ Reference  was  Made  to section 270(b), 270(c) 298 270(e),  1, 2 & 3 of the Madras District Municipalities  Act (V  of 1920), and it was argued that the authority which  is clothed  with  a power to fix a stand is  the  Municipality. Section  270(b) empowers the Municipal Council to  construct or  provide halting places and cart-stands, and  the  latter according  to  the  Explanation  appended  to  the   section includes a stand for motor vehicles as well.  Section 270(c) merely  says that where a Municipal Council has  provided  a public  landing  place,  halting  place  or  cartstand,  the executive  authority  may  prohibit the  use  for  the  same purpose by any person within such distance thereof, as maybe determined by the Municipal Council, of any public place  or the  sides of any public street.  Section 270(e)  lays  down that no person can open a new private cart-stand or continue to  keep  open a private stand unless he  obtains  from  the Council a licence to do so.  These provisions do not  affect the  power  of the Transport Authority to  regulate  traffic control or impose restrictions upon the licence of any  such cart-stand.   If rule 268 is therefore within the  power  of the  rule-making  authority, it follows that  it  cannot  be challenged  as being void because it is not consistent  with some general law.    Reliance was placed on a passage at page 299 of,  Craies on  Statute  Law  as  laying down that  a  by-law  must  not be_repugnant to the statute or the general law.  But by laws and  rules  made under a rule-making power  conferred  by  a statute do not stand on the same footing, as such rules  are part and parcel of the statute itself.   Section  68,  subjection 2(r), involves  both  s  general prohibition. that the stand will cease to exist as well as a particular prohibition, namely that passengers shall not  be picked  up  or  set down at a specified  point.   The  order passed  by the Transport Authority properly construed  falls within the ambit of section 68, sub-section 2(r).  Rule  268 under  which the order impeached was passed is  rule  framed under the plenary rule-making 299 power  referred  to in section 68,  sub-section  (1).   Sub- section  (2) (za) says that a rule may be made with  respect to  any  other matter which is to be or may  be  prescribed. This  shows the existence of residuary power vested  in  the rule-making  authority.  It follows therefore that rule  268 is within the scope of the powers conferred under section 68 of the Act.   The  next contention was that the order is  repugnant  to article  19 (1) (g) of the Constitution, according to  which all citizens must have the right to practise any  profession

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or to carry on any occupation, trade or business.  It cannot be  denied that the appellant has not been  prohibited  from carrying  on the business of running a bus-stand.  What  has been prohibited is that the bus-stand existing on the parti- cular site being unsuitable from the point of view of public convenience,  it  cannot be used for picking up  or  setting down  passengers from that stand for  outstations  journeys. But  there  is certainly no prohibition  for  the  bus-stand being used otherwise for carrying passengers from the  stand into the town, and vice versa.  The restriction placed  upon the  use of the bus-stand for the purpose of picking  up  or setting  down passengers to outward journeys cannot  be  con -sidered to be an unreasonable restriction.  It may be  that the appellant by reason of the shifting of the bus-stand has been  deprived of the income he used to enjoy when the  bus- stand  was used for outward journeys from Tanjore, but  that can  be no ground for the contention that there has been  an infringement of any fundamental right within the meaning  of article  19  (1)  (g)  of the  Constitution.   There  is  no fundamental right in a citizen to carry on business wherever he  chooses and his right must be subject to any  reasonable restriction  imposed  by  the  executive  authority  in  the interest  of public convenience.  The restriction  may  have the  effect  of eliminating the use to which the  stand  has been put hitherto but the restriction cannot be regarded  as being   unreasonable   if  the   authority   imposing   such restriction  had the power to do so.  Whether the  abolition of the stand 39 300 was  conducive  to public convenience or not  is  a   matter entirely for the transport authority to judge, and it is not open  to   the court to substitute its own opinion  for  the opinion  of  the authority, which is in the  beat  position, having  regard  to  its knowledge  of  local  conditions  to appraise the situation.   It was next contended that rule 268, if it is held to  be intra  vires,  was  not  complied  with  as  the   Transport Authority  could pass such an order only after  consultation with  such other authority as it may deem desirable.  It  is admitted   that   the  Transport   Authority;consulted   the Municipality before passing the order in question. Rule  268 therefore  was  fully complied with.  But then it  is  urged that  the Municipality was not the proper authority  in  the circumstances  as it was a partisan to the dispute  and  had been  endeavouring to oust the appellant from the  bus-stand in order to set up its own bus-stand.  The Municipality is a public  body interested in public welfare and if  it  sought the assistance of the Government or the Transport  Authority to  shift the busstand, it was actuated only by the  demands of  public  interest.   It was possible  for  the  Transport Authority to consult the District Board or the Panchayat  as suggested for the appellant, but it was not bound to do  so. We  do  not think that in consulting  the  Municipality  the Transport Authority acted otherwise than within the scope of its powers.  Further, according to the language employed the consultation is not obligatory but only discretionary.   It  was  suggested that the act of the  Municipality  was mala fide and reference was made to paragraphs 18 and 19  of the  appellant’s  affidavit dated November 20,  1950.   They refer  merely  to  the vagueness of  the  ground  of  public convenience  and to he amendment of the rule not being  bona fide.   There  is,  however, no  material  to  support  this suggestion.  The mere fact that in the first notice  certain grounds  were  mentioned which were not adhered  to  in  the

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second  notice and convenience of the travelling public  was alone mentioned as the ground cannot lead to the 301 inference  that  the  order was mala  fide.   The  rule  was amended in pursuance of the suggestion of the High Court  in order to overcome the difficulty which arose in the  absence of   requisite   power  to-alter  the  busstands.    It   is significant  that  no allegation about mala fides  was  made before  the High Court and the question was never  discussed there.   In the petition for special leave to appeal  though there  is  reference to the ground  of  inconvenience  being vague,  yet  there  is no suggestion  of  mala  fides.   The question  about mala fides appears to have been  raised  for the  first time in paragraph 4 (f) and (g) of the  statement of the case.  We hold that the plea of mala fides has not   It  was also urged that the resolution is invalid as  the District  Collector  who presided over the  meeting  of  the Transport Authority which passed this resolution had  opened the   new  Municipal  bus-stand  on  April  I,  1950.    The suggestion  is  that  be  did not bring  to  bear  upon  the question  an  impartial  and unbiased  mind.   The  District Collector  was  not acting in the exercise  of  judicial  or quasi-judicial   functions  so  that  his  -action  can   be subjected -to the scrutiny which is permissible in the  case of  a  judicial  officer.   He, was  acting  purely  in  his executive  capacity  and his conduct in presiding  over  the meeting  of the Transport Authority in the exercise  of  his normal functions and also opening the Municipal stand  which he was entitled to do as the head of the District, does  not affect  the  validity or fairness of  the  order  complained against.   We  do  not  think there is  any  merit  in  this contention. Accordingly we dismiss the appeal with costs.                     Appeal dismissed.         Agent for the appellant: M. S. K. Sastri.       Agent for the respondent: G. H. Rajadhyaksha. 302