Balavantaraj vs Secretary, Home Dept. Govt. of Madras and Others

Anantanarayanan, J.—These are related appeals from the judgment of Ramachandra Iyer J. (as he then was) in petitions before mm for the

issue of a writ of certiorari or other appropriate writ, raising certain important issues relating to the consequences of nationalisation of transport

routes under un. IV-A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act). More particularly stated, the issues were whether

Section 68-G(2) of the Act, under which an otter of alternative routes could be made to those operators whose permits had been cancelled in

implementation of a scheme of nationalisation, was or was not violative of Articles 14 and 19(1)(g) of the Constitution; and further, whether the

Government could issue specific directions to the State Transport authority u/s 43(1)(d)(iii) of the Act, directing the issue of alternative permits to

such operators whose permits had been thus cancelled. We shall refer a little later, in detail, to the context of facts in relation to which these writ

petitions were filed. We may now briefly note that the learned Judge Ramachandra Iyer J. held that Section 68-G (2) was valid, that Section 43

(1) (d) (iii) did invest a power in Government to issue such specific directions, that both the offer u/s 68-G (2) as well as the directions u/s 43 (1)

(d) (iii) were acts of administrative and not quasi-judicial character and hence mat the permits granted to the respondents were valid. The rule nisi

was discharged, and the petitions were dismissed.

We propose, at the outset, to refer to the fads in W.A. Nos. 19, 35 and 36 of 1961, as they comprehensively outline the context in which the

proceedings have arisen. On 30-12-1959, the Government approved schemes under Ch. IV-A nationalising the routes (i) Madras to Lattice

Bridge operated by Associated Transports Madras (Private) Ltd, one of the respondents, (ii) Madras to Villivakkam, similarly operated by

Presidency Transports (Private) Ltd., Madras, another respondent. On the same date, the permits of these respondents on these routes, which

were due to expire on 31-12-1959, were cancelled by the Regional Transport Authority, Chingleput. Again on the same date the State Transport

undertaking was granted permits on the routes Madras to Lattice Bridge and Madras to Villivakkam, which had been nationalised. On 12-8-1960,

the Government issued Government Order Ms. No. 2395 (Home) declaring a new route from Trivelore to Perambakkam, by virtue of their

powers u/s 43-A(2) of the Act.

It must be here stated that Trivellore to Perambakkam is a segment (10 miles) of the route Trivellore to Kancheepuram (41 miles), upon which the

appellant in W.A. No. 19 of 1961 was plying buses as an existing operator with a permit. Admittedly, notice was not given to this appellant and he

was not heard before the new route was declared by the Government; this, as we shall see later, is one of the important grounds of objection in the

appeals. On 17-8-1960, the Government published a draft notification u/s 43(1) (d) (iii) of the Act embodying proposals to grant permits on the

new route, Trivellore to Perambakkam, to each of the two respondents referred to already, who might be characterised as displaced permit

holders. On 12-9-1960, the appellant in W. A. No. 19 of 1951, filed objections to this course, which were heard on 11-10-1960, by the

Secretary, Home Department, and finally on 15-10-1960, Government Order Ms. No. 2363 was issued directing the State Transport authority to

direct the Regional Transport Authority, Chingleput, in its turn, to grant the two permits.

The facts in W.A. Nos. 35 and 36 of 1961 were very similar. On 28-8-1957, a draft scheme was published under Ch. IV-A proposing the

nationalisation of the route Madras (Mint) to Red Hills, in which two buses were operated by one of the respondents (Ekambaram Chettiar). On

29-1-1938, the Government approved the draft scheme in Government Order Ms. No. 253 Home. The existing permits of the respondent were

due to expire on 31-1-1959, but, u/s 62 of the Act, he was granted temporary permits for four months to maintain the continuity of service. On

19-02-1959, the Government Order Ms. No. 490 Home was issued as a direction u/s 43-A (2) of the Act opening a new route, Madras to

Sholinghur. On 4-3-1959, Government Order Ms. No. 575 Home, was published, as a draft direction u/s 43 (1) (d) (iii) for the grant of two

permits on the new route to the respondent (displaced permit holder), and inviting objections. The appellant filed objections. On 11-6-1959, these

were heard by the Secretary, Home Department. On 9-7-1959, the Government Order Ms. No. 1974, Home, was issued, approving the draft

direction. On 19-8-1959, the State Transport Authority offered alternative permits on the new route to the respondent, and on 11-9-1959, a

timings conference for the route, Madras to Sholinghur, was held by the Regional Transport Autnority, Chingleput. On 17-9-1959, W. P. No. 837

of 1959 was filed, and the respondent''s pre-existing permits were can-celled on 21-9-1959. We may briefly note that the facts in W. A. No. 41

of 1961 were very similar, the respondent (Ekambaram Chettiar) holding two permits as an operator in the route, Madras (Mint) to Red Hills

which was nationalised; after which the Government directed (under Section 43 (1) (d) of the Act) the State Transport Authority TO direct the

Regional Transport Authority, Vellore, in turn, to grant two permits on the route Madras to Sholinghur newly declared in G.O. Ms. No. 40 dated

19-02-1959, to the respondent in lieu of the two pre-existing permits cancelled under the scheme of nationalisation.

We may immediately proceed to a scrutiny of the main grounds upon which the appeals are pressed. This is all the more necessary because,

though in substance, the attack has been the same as that pressed before the learned judge, Ramachandra Iyer J. the form and emphasis of the

arguments have varied to a certain extent. For this reason it is also necessary to note, however briefly, the main grounds on which the learned

Judge actually proceeded to dismiss the writ petitions. After completing this part of the scrutiny, we shall proceed to a schematic analysis of certain

inter-related provisions of the Act, setting them forth in their entirety. This procedure is likely to elucidate the actual principles of law in their

application to the instant facts, which have been ,stated and pressed before us, and the citations of case law made during the arguments.

The main grounds of the appeals before us, which are common to all of them, are these. Firstly, the power to grant an alternative permit to a

displaced permit holder u/s 68-G (2) is an arbitrary and unchannelled power violative of Article 14 of the Constitution. Again, this power is not a

reasonable restriction on the fundamental rights of other operators already plying their buses on this alternative route and hence it offends Article

19(1)(g) of the Constitution, interpreted in the light of the proviso to Article 19(6). Next, this is a quasi-judicial power, to be exercised by the

Regional Transport Authority alone and the issue of specific directions to this authority to grant alternative permits on the new route to displaced

permit holders is destructive of the judicial discretion vested in the authority, and hence illegal.

Again, if Section 68-G(2) is to be interpreted as not violative of Article 14, this can only be upon the presumption or argument that the

Government must issue u/s 43 (1) (d) (iii) of the Act, general directions concerning the kind of alternative permits to be granted, and the principles

of the exercise of this choice; specific directions for issue of permits to named individuals are totally illegal. Rule 294-1 of the rules framed by

Government under the Act, which has been cited in the judgment of the learned Judge, is ultra vires of the powers of the Government; nor could

the Government direct that the procedure under Sections 47 and 57 of the Act might be abrogated with respect to the grant of such alternative

permits.

Further, the order of the Government u/s 43-A (2) declaring the new route is illegal, as it was made without hearing the concerned party already

plying buses on the route in question. This arises with special reference to W. A. No. 19 of 1961, and as it evolved, during the course of

arguments, is a major ground of attack. This does not seem to have been the case, as far as the arguments before the learned Judge, Ramachandra

lyer J. were concerned. There are one or two other minor grounds. Though not in W. A. No. 19 of 1961, the facts with regard to two other

appeals show that the actual order granting permits to the displaced permit holders (respondents) was passed by the Minister, while the hearing

was by the secretary, Home Department. This, it is alleged, vitiates the exercise of the power.

Again, the actual cancellation of the pre-existing permits must be regarded as a condition precedent to the grant of alternative permits. But, as the

facts and the dates set forth by us earlier will show, this rule was not adhered to; nor was the rule strictly adhered to u/s 57 (2), that the application

for a stage carriage permit must be made six weeks before the date on which it is desired that the permit shall take effect, unless the Regional

Transport Authority fixes specific dates. But, admittedly, these are grounds of quite subsidiary importance. If, upon the main arguments advanced,

the dismissal of the applications for the issue of a writ of certiorari could be sustained, these matters, by themselves, could help or advance the

claims of the appellants very little.

In order to show how the form and range of the arguments have developed, we might refer, quite briefly, to the judgment of the learned Judge,

dismissing the applications. The learned Judge sets forth the facts at the outset, and then points out that the validity of the scheme of nationalisation

was not challenged before him, nor was the decision of the Government impugned as a mala fide exercise of their powers. The learned Judge then

proceeds to refer to an objection by the learned Advocate General for one of the respondents, of the right of the petitioners to invoke the

jurisdiction of the Court under Article 226 of the Constitution.

After a discussion of this aspect, the learned Judge proceeded to hold that the true principle was that stated by the learned Chief Justice in Swami

Motor Transport (Private) Ltd. Vs. Raman and Raman (Private) Ltd. and Others, , namely, whether the particular operator was aggrieved, in the

sense that he had an interest distinct from the general inconvenience which might be suffered on account of the application of the relevant principles

of law. Since in substance, the offer and acceptance of these alternative permits did affect the interest of the appellants, who were pre-existing

operators on these newly declared routes, the learned Judge held that the objections were maintainable under Article 226 of the Constitution. After

a discussion of the relevant provisions of the Act, in the light of the cited authorities, the learned Judge finally held that Section 68-G (2) was not

ultra vires of the Constitution, that it was not a quasi judicial out an administrative power, that the Government could issue administrative

instructions u/s 43 (1) (d) (iii) for otter of alternative permits to specific individuals, that that was also an administrative power or function, and that

the other objections to the issue of permits were not valid.

Before us, the emphasis has somewhat shifted, focussing attention upon these two main aspects. Firstly, the Government could not declare any

new route u/s 43-A (2) without hearing the pre-existing operators upon any part of such routes. The principles of natural justice are violated when

this canon of audi alteram partem is not adhered to. Again, this is a quasi judicial power, and not an administrative power. Hence, as far as W.A.

No. 19 of 1961 at least is concerned, the appeal ought to succeed. Next, Section 68-G (2) would be clearly violative of Article 14, unless Section

43(1) (d) (iii) is construed as an obligation to issue general directions, fixing the principles of the exercise of the power u/s 68-G (2). In exercise of

a power u/s 68-G (2), when such a notification of the principles of choice among displaced permit holders for the offer of alternative routes, is itself

invalid under Article 14 as an unchannelled power, such a direction is doubly invalid, when, instead of declaring these principles, it commands the

Regional Transport Authority to issue permits to specific individuals. Since the deqision was not that of the Regional Transport Authority, who

alone is clothed with the power and discretion u/s 68-G (2), the grants of permits are invalid and in the present case, Section 68-G (2) would be

equally violative of Article 19(1)(g), as the power has been exercised, upon the present facts. These are the main arguments, which do involve a

close scrutiny of the scheme of these provisions, and their inter-relationship within the framework of the Act.

We shall hence commence by setting forth all the relevant provisions which concern us in these appeals, not in their numerical order, but in the

logical order with reference to the arguments as actually developed by the learned counsel. Section 68-G (2) runs as follows:

Notwithstanding anything contained in Sub-section (1), no compensation shall be payable on account of the cancellation of any existing permit or

any modification of the terms thereof, when a permit for an alternative route or area in lieu thereof has been offered by the regional transport

authority and accepted by the holder of the permit.

Section 68-G (1), which need not be cited here, refers to the grant of compensation for displaced permit holders, and Section 68-G (4) and

Section 68-G (5) together with the explanation, elaborate the working principles on which compensation is to be assessed. They will be found set

forth in the judgment of the learned Judge, and it is not necessary to reproduce them here.

Section 43 of the Act runs as follows:

(1) A State Government, having regard to--(a) the advantages offered to the public, trade and industry by the development of motor

transport, and (b) the desirability of co-ordinating road and rail transport, and (c) the desirability of preventing the deterioration of the road system,

and (d) the desirability of preventing uneconomic competition among motor vehicles,--may, from time to time, by notification in the official Gazette,

issue directions to the State Transport Authority-- (i)..... (ii)......(iii) regarding the grant of permits for alternative routes or areas, to persons in

whose cases the existing permits are cancellea or the terms thereof are modified in exercise of the powers conferred by Clause (b) or Clause (c) of

Sub-section (2) of Section 684;........

Provided that no such notification shall be issued unless a draft of the proposed directions is published in the official Gazette specifying therein a

date being not less than one month after such publication, on or after which the draft will be taken into consideration and any objection or

suggestion which may be received has, in consultation with the State Transport authority, been considered after giving the representatives of the

interests affected an opportunity of being heard.

We might here immediately state that, u/s 68-F(2) -

For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the Regional Transport Authority may .....

(b) cancel any existing permit; (c) modify the terms of any existing permit.......

Another very important provision, with reference to the scheme of nationalisation of routes adumbrated in Ch. IV-A is Section 68-B which

declares as follows:

The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith

contained in Ch. 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.

Under Section 43-A (1) of the Act-

The State Government may issue such orders and directions of a general character as it may consider necessary, in respect of any matter relating

to the road transport, to the State Transport authority or a Regional Transport Authority and such Transport Authority shall give effect to an such

orders and directions.

In this context itself, it may be convenient to note certain important provisions in Ch. IV of the Act, disclosing the inter-relationship between the

State Government, the State Transport Authority and the Regional Transport Authority. As we have already seen Section 43(1) empowers the

State Government to issue directions to the State Transport authority having regard to the principles or criteria set forth in Clauses (a), (b), (c) and

(d) of Section 43(1). u/s 44(3),

A State transport authority shall give effect to any directions issued u/s 43, and subject to such directions and save as otherwise provided by or

under this Act shall exercise and discharge throughout the State the following powers and functions,.........

Section 44(4) declares:

For the purpose of exercising and discharging the powers and functions specified in Sub-section (3), State Transport Authority may, subject to

such conditions as may be prescribed, issue directions to any Regional Transport authority and the Regional Transport authority shall in the

discharge of its functions under this Act give effect to and be guided by such directions.

In other words, the State Government, the State Transport Authority and the Regional Transport Authority appear to form a hierarchy of

empowered bodies under the Act, with interrelated administrative functions; according to the learned Advocate General, any argument that

overlooks this, and attempts to exclude the State Government from the constellation of powers designed to implement the provisions of the Act,

would be quite beside the mark. In this context itself, we might refer to the observations or Subba Rao J. in Raman and Raman Ltd. Vs. The State

of Madras and Others, , that directions u/s 43-A ought to be given a restrictive interpretation, and not the status of law, as this alone would secure

a happy correlation of functions of various bodies under the Act including the Government"". We may now proceed to Section 43-A (2) of the Act

which has to be immediately related to Section 47 (1), for the obvious reason that the former provision of law explicitly refers to the latter. Section

47(1) runs as follows:

A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely, (a)

the interests of the public generally; (b) the advantages to the public of the service to be provided, ..... (c) the adequacy of other passenger

transport service operating or likely to operate in the near future, whether by road or other means between the places to be served; (d) the benefit

to any particular locality or localities likely to be afforded by the service; (e) the operation by the applicant of other transport services .. (1) the

conditions of the roads included in the proposed route or area; and shall also take into consideration any representations made by persons already

providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing person

interested in the provision of road transport facilities ........

Section 43-A(2) declares:

The State Government may, on a consideration of the matters set forth in Sub-section (1) of Section 47, direct any Regional Transport Authority

or the State Transport Authority to open any new route or to extend any existing route...."" u/s 57(2), an application for a stage carriage permit or a

public carrier''s permit is to be made-""not less than six weeks before the date on which it is desired that the permit shall take effect or for any other

date fixed by the Regional Transport Authority;

Section 64 provides for appeals by various aggrieved persons against orders of the Regional Transport Authority to the State Transport

Authority. u/s 68-D, objections to the scheme of nationalisation may be tiled within 30 days of the notification of the scheme and procedure is

prescribed for a hearing and decision upon the objections. We may complete this exhibition of relevant provisions by citing Rule 294-1 (G. O. Ms.

No. 1446 Home) which runs as follows:

In the case of a person whose stage carriage permit or permits on a route or in an area notified under Sub-section (3) of Section 68-D of the Act

is/are cancelled under Clause (b) of Sub-section (2) of Section 68-F of the Act and to whom it is proposed to grant a stage carriage permit or

permits on an alternative route or in an alternative area in lieu of the existing permit or permits on the notified route or in the notified area by a

direction under Sub-clause (iii) of Clause (d) of Sub-section (1) of Section 43 of the Act, the Regional transport authority concerned shall grant the

permit or permits on the alternative route or in the alternative area to that person without following the procedure prescribed in Section 57 of the

Act and the rules thereunder.

We are now in a position to scrutinise the main lines upon which Sri M.K. Nambiar for the appellants has developed his arguments, with

reference to the major issues arising from the facts we have earlier enunciated.

The right of the public to use motor vehicles on public highways is not a right created by the Act. The right existed anterior to any legislation on

the subject, and is an incident of public right over a highway, which the State could only control and regulate; see the observations or the Supreme

Court in Saghir Ahmad Vs. The State of U.P. and Others, . The true position of law was summarised thus by Venkatarama Aiyar J. in C.S.S.

Motor Service, Tenkasi and Others Vs. The State of Madras and Another, ,

....all public streets and roads vest in the state, but the State holds them as trustees on behalf of the public. The members of the public are entitled

as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the

pathways. The State, as trustees on behalf of the public, is entitled to impose all such limitations on the character and extent of the user as may be

requisite for protecting the rights of the general public.

In Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh State Road Transport Corporation and Another, , the same principles were

affirmed, and the Supreme Court observed that the fundamental right of a citizen to carry on business in transport vehicles on the public highway

was subject to the power of the State to enact laws reasonably restricting those rights, or even empowering the State to carry on such business

itself to the exclusion of the citizen. The validity of the scheme of nationalisation under Ch. IV-A was upheld by the Supreme Court in Dosa

Satyanarayanamurty etc. Vs. The Andhra Pradesh State Road Transport Corporation, . However, the constitutional validity of Section 68-G (2),

in particular, was not in issue in any of the cases before the Supreme Court. Learned counsel, Sri Nambiar, does not dispute the main position of

law, as outlined in the passage already extracted from C.S.S. Motor Service, Tenkasi and Others Vs. The State of Madras and Another, . But his

case is that operators upon any route have a constitutional right to exclude others, except in accordance with any enactment which may permit the

nationalisation of routes or the introduction or fresh operators, under its provisions which are not an infringement of guaranteed fundamental rights.

Indeed, it is difficult to see how such a proposition could be in dispute at all. But from this, the learned counsel builds up a superstructure of

argument that the manner in which displaced permit holders have been granted permits, in alternative routes, to the detriment of persons, such as

the appellants, already, plying their buses on those routes, upon the present facts, infringes the constitutional rights of the appellants. The learned

Advocate General argues, per contra that the powers to be exercised by the concerned authorities including the State Government, u/s 68-G (2),

Section 43-A (2) and Section 43 (1) (d) (iii) are essentially administrative in character, and could not be otherwise. There is no question here of

the exercise of a quasi-judicial function at an, and, in this sense the learned Advocate General would even deny that the appellants are aggrieved

persons who nave a right to be heard here. In any event, the procedure actually followed was perfectly proper, and the relevant provisions are

constitutionally valid. Since the most important of the arguments concerns the constitutional validity of Section 68-G(2), and the manner of the

exercise of that power in the present case, we may immediately proceed to an analysis of this aspect.

It will at once be noticed that Section 68-G (2) does not in terms, declare any power or function to be exercised by the Regional Transport

Authority with reference to the offer of alternative permits to displaced permit-holders. In Maxwell on the Interpretation of Statutes, 10th Edn. p.

352, there is a passage which runs as follows:

The enactment that at the election of poor law guardians the votes should be taken and returned as the Commissioners should direct, impliedly

authorised the appointment of a Returning Officer.

In other words, an Act providing for the functioning of such an officer was held valid, because the Commissioners were given such a power by

implication. It is upon some such logic that Section 68-G (2) would appear to clothe the authority specified, the Regional Transport Authority, with

power to offer an alternative route to a displaced permit-holder. There has to be an offer and an acceptance here for any right or interest to be

created and such an offer could only be made to a particular person or persons falling within the class of displaced permit holders. One matter

upon which the learned Counsel on both sides were m entire accord is that this is a very valuable right, if an offer be made and be sealed by its

acceptance. It cannot at all be compared with the monetary compensation provided for in Section 68-G(4) and Section 68-G(5), and though the

Legislature, in its wisdom, might have provided for a particular formula of compensation, and, admittedly, the quantum is not justiciable under

Article 31, still the very provision of Section 68-G (2) was perhaps dictated by the grave injustice likely to be suffered by displaced permit holders

consequent upon nationalisation. As the learned Judge Ramachandra Iyer J. observes:

...where a person who got a permit in such a manner (Section 57) is prevented from exercising his fundamental right of doing such business by

reason of nationalisation of the route, he could be given an alternative permit, this is plain justice.

Again, having regard to the explicit provisions or Section 68-B already set forth, excluding the application of such sections as 47 and 57 of Ch.

IV, it does appear as if the legislature intended that there should be a speedy and effective remedy to be exercised by Government in favour or this

class of persons, displaced permit holders; formalities of procedure, or the rights of others not within this class, should not stand in the way of the

offer of such alternative permit. In this sense, if Sections 68-B and 68-G(2) are read together with the terms of Rule 294-1, already set forth,

enabling the Regional Transport Authority to grant such alternative permits without following the procedure in Section 57, they would appear to be

legal and valid. Nevertheless Sri Nambiar argues, this is an arbitrary and unchannelled power, even though the exercise of this power is not

obligatory, unless the Act itself contains indications for the exercise of this power in accordance with the principles of equity and natural justice, it

would be violative of Article 14. It would be equally violative of Article 19(1)(g) read in the light of Article 19(6). At any rate, the pre-existing

permit holders of such newly declared alternative route have an interest in complaining of this violation, and in praying that the arbitrary power in

Section 68-G(2) be struck down. This raises two important issues: (i) have the appellants a right to be heard in this context, since none of them

falls within the category or class of a displaced permit holder; and (ii) is Section 68-G(2) violative of either Article 14 or Article 19 of the

Constitution? on this aspect, there is a third question which may also be immediately formulated: Is the exercise of this power, in the present case,

illegal because it is a quasi-judicial power to be exercised by the Regional Transport Authority alone, who could tolerate no direct dictation by

Government with regard to this function, without rendering the exercise of that function itself thereby illegal?

In V.G. Row Vs. The State of Madras, , there is a passage in the judgment of the learned Chief Justice Rajamannar C.J. about the true

Implications of Article 14. The Learned Chief Justice observed at page 665 (of Mad LJ) : (at pp. 176-177), as follows:

In my opinion, the principle of equality before the law does not come into play in any controversy as to the legality of a law enacted by the State.

It comes into play really in the sphere of its enforcement.

The learned Chief Justice then made reference to the well-known postulates of Dicey in relation to the sovereignty of the Legislature in the United

Kingdom. But, as Sri Nambiar points out, the situation has been subsequently clarified, with particular reference to the existence of a written

Constitution guaranteeing fundamental rights, as tar as this country is concerned, and to the terms of Article 13(2) of the Constitution. Generally

speaking, it may no doubt be argued that Article 14 should be invoked to impeach a law or an instance of its implementation, only by a person

who falls within the class hit at by the alleged discrimination, or who is really aggrieved. For instance, it seems undeniable that the objection must be

based on a hostile discrimination, and not a favourable discrimination. Reference might be made here to my observations in In Re: E.V.K. Sampath

and Another, . The learned Advocate General would attempt to reinforce this stand by a reference to certain authorities. He cites a passage in

Willis on Contitutional Law, 1936 Edn. page 91, which runs as follows:

Who are entitled to raise questions of constitutionality? Any one whose rights are injuriously affected and no one else. It is not enough that the

statute is unconstitutional as to other persons or classes. The person attacking the statute must be within the class.

In Ealing Corporation v. Jones, (1959) 1 Q. B. 384, Donovan J. observed that,

The word aggrieved is not synonymous in this context with the word dissatisfied. The word aggrieved connotes some legal grievance, for example,

a deprivation of some-thing, as adverse effect on the title to something, and so on, and I cannot see that that is so here.

In V.G. Row Vs. The State of Madras, the dictum of Justice Frankfurter is cited, upon this principle:

Justiciability depends on the existence of a right protected under Common Law, Statutes, or the Constitution.

Again, the undeniable fact that the State or the Regional Transport Authority is not bound to make such an otter at all to a displaced permit holder,

makes a great difference. Obviously, even a displaced permit holder cannot maintain an action for the enforcement of such an offer. Much less

could persons like the appellants, who do not fall within this class, but are merely persons who happen to hold prior permits on these alternative

routes, really complain of an unchannelled power or of possibilities of arbitrary discrimination. Had the case law not evolved from than (sic) V.G.

Row Vs. The State of Madras, , much could be said in favour of these arguments that parties situated like these appellants could not be heard to

complain that Section 68-G(2) is violative of Articles 14 and 19 of the Constitution.

But, apart from the fact that, unlike the case In England, we have a written Constitution embodying fundamental rights which do operate to

restrict the powers of the sovereign Legislature, the matter of Article 14, in particular, has been further clarified by the decisions of the Supreme

Court in Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another, and Deep Chand Vs. The State of Uttar

Pradesh and Others, . In the former decision S. R. Das C. J. observed at page 158,

Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and other subordinate authorities. As

regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of Article 13. Clause (1) of

that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution, in so far as they are

inconsistent with the provisions of Part 111, shall, to the extent of the inconsistency be void. Likewise Clause (2) of this Article, prohibits the State

from making any law which takes away or abridges the rights conferred by the same part and follows it up by saying that any law made in

contravention of this clause shall, to the extent of the contravention, be void.

Again, their Lordships of the Supreme Court state at page 159,

Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the

fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.

In Deep Chand Vs. The State of Uttar Pradesh and Others, , the propositions are re-affirmed, and it is emphasised that,

A Legislature, therefore, has no power to make any law in derogation of the injunction contained in Article 13 .........A constitutional prohibition

against a State making certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other

constitutions.

Thus, if there can be no waiver in respect of Article 14, any person aggrieved by the consequence of the exercise of any discriminatory power,

could be heard to complain against it. He need not be a person actually falling within the category or class for which the legislation seeks to

provide. Sri Nambiar refers to the definition of right in Salmond on Jurisprudence, 11th Edn. page 261 (Glanville Williams):

A right is an interest recognised and protected by a rule of right"".

Since a person holding a permit on any route has a right to do business in transport vehicles on that route to the exclusion of others, except to the

extent permitted by valid provisions of law, the appellants could sustain the objection, that Section 68-G(2) is violative of the Constitution. Learned

counsel also refers to the well known dicta in Yick Wo v. Hopkins, (1886) 30 Law Ed. 220,

It is indeed quite true that there must always be lodged somewhere, and in some person or body the authority of final decision:.......

(But in order that the Government)

may be a Government of law and not of men. For the very idea one man should be compelled to hold his life, or the means of living, or any

material right essential to the enjoyment of life, at the mere will of another.....

Upon this aspect of the matter, we are of the view that the appellants could attempt, within the scope of these petitions, to assail Section 68G(2) as

violative of the constitution, and to impugn, the exercise of that power on me facts of the present case.

But even Sri Nambiar does not argue that Section 68-G (2) has to be interpreted by Courts as violative of Article 14. As laid down in Ram

Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, , there is always a presumption in favour of the constitutionality of an enactment If it is

possible to read the distinct parts in such a manner as to save the constitutionality of any of its provisions, that is the obligatory interpretation. Sri

Nambiar argues that Section 68-G (2) has to be read in this manner along with Section 43(1) (d) (iii), and that the latter provision contemplates the

enunciation of principles by the State Government which would make the exercise of functions u/s 68-G (2), in accordance with fundamental rights.

Sri Nambiar cites and relies on C.S.S. Motor Service, Tenkasi and Others Vs. The State of Madras and Another, where this Court similarly held

that Government should formulate rules for selection among the applicants, under the Act, and that there should not be two different and opposing

principles both in operation at the same time. Thus, by this single argument, Sri Nambiar seeks to impugn the Act of the Government (i) in not

issuing such general directions u/s 43(1)(d) (iii) which is a pre-requisite for the exercise of functions by the Regional Transport Authority u/s 68-G

(2) and (11) in actually issuing directions instead, which were quite illegal in character, and for the issue of particular permits on the alternative

routes, to named displaced permit holders.

But upon a careful scrutiny of the relevant principles and citations, we are quite unable to see how Section 68-G (2) is violative of either Article

14 or of Article 19(1)(g), even on the interpretation that Section 43(1) (d) (iii) empowers the State to issue specific directions, and not merely

general directions. We must repeat that Section 68-G (2) gives no right to displaced permit holders. It does not even refer to a power of the

Regional Transport Authority, except by necessary implication. As the section stands, since it lays no obligation upon the State to make an offer,

and creates no corresponding right in displaced permit holders to enforce such an offer, it is quite impossible to see how we could conceive of the

existence of any arbitrary or unchannelled power, within the terms of this sub-section. Nor is it necessary to accept the argument that the

constitutionality of this sub-section can only be saved by assuming that u/s 43 (1) (d) (iii) the State Government must first enunciate general

principles. On the contrary, if regard is had to the provisions of Section 43 (1) (d) (iii) in relaton to the hierarchy of authorities under the Act,

including the State Government and to the nexus between them, as envisaged by Sections 43-A (1), 44 (3) and 44 (4) already referred to, it is

obvious that Section 43 (1) (d) (iii) very well sustains the interpretation that the directions could be well individual and specific.

As the learned Judge, Ramachandra lyer J. has pointed out, the very idea of an offer of this kind, and its acceptance, appears to connote an

administrative function; further, the alternative route may well lie in the areas of two or more Regional Transport authorities, and hence it is

essential, for the proper exercise of this function, that the orders should come from above. Otherwise, an administrative-deadlock may result, and

the beneficient provisions of Section 68-G (2) be frustrated. As regards Article 19(1)(g) read with Article 19(6), it is sufficient to refer to Dwarka

Prasad Laxmi Narain Vs. The State of Uttar Pradesh and Others, and Saghir Ahmad Vs. The State of U.P. and Others, . The test of

reasonableness is certainly satisfied in the present case. For, merely because persons hold permits on certain routes, they have no right to totally

exclude others. It is reasonable restriction to permit the introduction of other permit holders who might be displaced by a scheme of nationalisation;

of course, amongst persons of that class, the offer will have to be made upon principle, and not on arbitrary preference. But since Section 68-G

(2) does not enact a power, but an administrative discretion, it is obvious that a complaint on this score should really coma from a person

aggrieved by a particular instance of hostile discrimination. We shall discuss this aspect later. On the broad argument, we have no hesitation in

concluding (i) that Section 68-G (2) is not violative either of Article 14 or of Article 19 as it stands, and (ii) that this interpretation is sustainable

upon the assumption, which is equally sustainable, that Section 43 (1) (d) (iii) does vest a power in the Government to issue specific directions for

grant of permits to individual displaced permit holder.

The matter could be more briefly dealt with, on the question of the nature of these powers. It is difficult to see how these powers could at all be

termed quasi-judicial, or anything other than administrative. The authorities have to be more elaborately reviewed, when we come to the quasi

judicial aspect of Section 43-A (2); that is the more difficult problem. But the power of the regional transport authority to make an offer u/s 68-G

(2) has no tincture whatever of a quasi-judicial function. There is no right to be enforced, no obligation to offer not even an obligation to accept.

On the contrary, a mere glance at the provisions of a section like 47, which relates to the grant or refusal of applications for a stage carriage permit

by a regional transport authority, will show that a quasi judicial power is there involved. For, there we have a lis, the question of an issue or refusal,

a right to be heard by the person or persons affected, and the principles determining the exercise of the power. The learned Advocate General

refers, in this connection, to R. v. Statutory Visitors to St. Lawrence''s Hospital, Caterham, 1953 2 All ER 766, where it was held that the

statutory visitors exercising administrative functions, did not constitute a judicial Tribunal.

The further question remains, whether, upon the present facts, we have any instance of the exercise of an arbitrary power, as far as the issues of

these permits are concerned. The learned Advocate General stresses that, in this State, permits are issued not merely upon the basis of the distance

for which the stage carriage Is to run, but also the mileage permitted per diem. This results in a true equality, the number of trips permitted being

greater where distance is less. Thus, there is really no scope for the argument of Sri Nambiar that, as between the displaced permit holders, the

Government should have laid down principles upon which alternative routes are to be offered, as in G.O. Ms. No. 2265, dated 9-8-1958,

classifying those routes as short, medium and long. Again, the data made available to us by the learned Advocate General prove that there has

been no instance of unfair discrimination. All the displaced permit holders, consequent upon schemes of nationalisation so far introduced, have

been given alternative permits, on the basis of offer and acceptance. In other words, the possibilities contemplated in Shrinivasa Reddy and Others

Vs. State of Mysore and Others, of abuses consequent upon piecemeal nationalisation have, fortunately, not eventuated. However this might be,

the displaced permit holders who have been given alternative permits are thoroughly satisfied. They do not complain, and, if there has been no

unfair discrimination so far as they are concerned, it is difficult to see how the appellants could complain with regard to the grants of permits to such

persons. In other words, the appellants are merely complaining that their trade is affected by the introduction of other permit-holders in the route,

and such a power in the State is not an unreasonable restriction. It is true that a route is an abstract concept, not merely a highway -- vide Kelani

Valley Motor Transit Co. Ltd. v. Colombo Ratnapura Omnibus Co. Ltd. AIR 1946 PC 137. But, even Sri Nambiar does not contend that the

mere introduction of other permit holders in the route involves a justiciable infringement of any porperty right. Regulation of property rights is not

the taking of property; Belfast Corporation v. O. D. Cars 1960 1 All ER 65.

The question remains whether the State acted illegally in directing the Regional Transport Authority u/s 43 (1) (d) (iii) to grant these permits to

the named displaced permit holders. Here, the learned Advocate for the appellants places particular reliance upon two authorities: (1)

Commissioner of Police, Bombay Vs. Gordhandas Bhanji, and Sri Rama Vilas Service Ltd. v. Road Traffic Board, Madras AIR 194S Mad 400.

The facts of the first case were somewnat exceptional, and as follows: Rule 248 of the rules framed u/s 22(1)(f) and 22(1)(g) of the City of

Bombay Police Act, 1902, invested the Commissioner with specific powers, namely, an absolute discretion in refusing any licence etc. The facts

were that the Commissioner of Police, Bombay, purported to communicate an order of the Government of Bombay cancelling a licence issued to

an individual, and this was not, in terms, his act of discretion, or any record of the exercise of such a discretion. The Supreme Court held that there

was no valid cancellation of the licence whatever since the Commissioner has never exercised the discretion vested in him under the specific terms

of the statute, and the act of cancellation was that of another, namely, the Government.

In Sri Rama Vilas Service, Limited Vs. The Road Traffic Board, there is no observation to the effect that there is nothing in the Motor Vehicles

Act, 1939 which could imply that the Government could, by order, direct the statutory Boards exercising their judicial and other functions under

the Act, to pass particular orders. It was pointed out that, under the scheme of the Act, these statutory bodies were quite independent. We are

unable to see how these decisions can apply to the present context of facts. As we have earlier stressed, (sic) very scheme of certain sections of

the Act shows that the State Government, the State Transport Authority and the Regional Transport Authority form a hierarchy of bodies with

functions and powers, ascending from the Regional Transport Authority upwards. The power to offer an alternative route to a displaced permit-

holder is purely administrative. Moreover, the exercise of that power is not possible without orders from the higher bodies, as the route may lie in

several Regional Transport Authorities'' jurisdiction. There is, therefore, no support afforded by these decisions, for the view that the Government

could not validly issue orders u/s 43 (1) (d) (iii), for offers to be made to particular displaced permit holders, the concerned respondents.

Certain decisions have also been cited before us with regard to the state of affairs under which this court will or will not issue a writ of

certiorari. As pointed out in Halsbury''s Laws of England (Simonds Edn. Vol. XI, Sections 251 and 265), certiorari generally lies in respect of

judicial, as distinguished from administrative acts. Although the order is not of course it will, though discretionary, nevertheless be granted ex debito

justitiae to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in

excess of jurisdiction, provided the application is made by an aggrieved party. A.M. Allison Vs. B.L. Sen, , K.S. Rashid and Son Vs. The Income

Tax Investigation Commission etc., , and Balwantrai Chimanlal Trivedi Vs. M.N. Nagrashna and Others, generally emphasise that the remedy

provided under Article 226 is discretionary, and depends upon the satisfaction of the High Court with regard to a failure of justice. On the

contrary, though the writ will not ordinarily issue against an executive authority, it may so issue in a fit case where a lack of jurisdiction is involved:

Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, . Reference may also be made to the

observations of Rajagopalan J. in P.K.N. Abdul Mazid Vs. The State of Madras and Others, , concerning the rights of any aggrieved person to

challenge the validity of an order which he seeks to avoid, by the issue of a writ of certiorari, irrespective of any statutory right vested in him to

make the objection at an early stage.

We may now proceed to the second aspect of we arguments, which is equally important. Here, the simple issue is whether the appellants or

any of them had a right to be heard prior to the declaration of any of the new routes by the Government u/s 43-A (2) of the Act.

In this context, we are inclined to attach some weight to the argument of the learned Advocate General, that for the purposes of implementing

the beneficent pro visions of Section 68-G(2) in respect of displaced permit holders, the Government could very well have acted without recourse

to the procedure in Section 43-A read with Section 47 (1) of the Act. The procedure actually followed by the State, in the present case, really

makes Section 68-B unnecessary. As we have earlier observed, Section 68-B seems to have been specifically enacted to expedite procedures in

this respect, and it is really Section 68-B which justifies and validates Rule 294-1, earlier cited. In other words, suppose that, consequent upon a

scheme of nationalisation, there are certain displaced permit-holders, to all of whom the State Government desires to offer alternative routes, we

must stress that, from a practical point of view, this would be real justice rendered to them, monetary compensation provided for under law being,

in no sense, a comparable relie (sic) Section 68-G is to be implemented at all, it means that the Regional Transport Authority must be directed to

make the offers. Since more than one jurisdiction of Regional Transport Authority may be involved, and the offer, if sealed by acceptance, would

bind the Government, the decision has necessarily to be taken on a higher level.

In other words, it is for this purpose that the State Government is empowered u/s 43 (1) (d) (iii) to issue directions. Now, if so much has been

decided upon, it is very difficult to see why the picture should be further confused by declaring new routes u/s 43-A(2) in conjunction with Section

47 (1). In any event, the situation is clearly quite different from that in which the State Government opens new routes, u/s 43-A (2), upon general

public considerations. In the present instance, it is indisputable that the new routes were declared for the sole and specific purpose of giving relief

to the concerned displaced permit holders u/s 68-G (2). It is from this point of view that the failure to cancel the prior permits of the displaced

permit holders, before the offer of new routes, the lack of six weeks interval u/s 57(2) etc., are quite immaterial, and of minor significance.

In view of Section 68-B, we do not see how the State Government could be prevented from making these offers straightaway. This argument itself

lends powerful support to the case advanced by the learned Advocate General that (i) the declaration of a new route is an administrative and not

quasi-judicial power at all, and (ii) that there is no right to be heard, available to any pre-existing permit holder, before the new route was declared.

The arguments here centre round two related issues or aspects. Firstly, purely as a matter of syntax and construction, it seems a plausible

interpretation that the word ''matters'' occurring in Section 43-A(2) already set forth, refers only to considerations (a) to (f) in Section 47 (1),

already set forth, and does not include within the scope of its reference the latter clause any representations made by persons already providing

passenger transport facilities. Such an interpretation is strengthened by the disjunctive manner in which Section 47(1) is worded, the words the

''following matters'' in that section being elaborated in two parts, namely, considerations (a) to (f) followed by the words ''and shall also take into

consideration'', etc. We are inclined to agree with this interpretation and to hold that in exercising the power u/s 43-A(2), the State Government is

not necessarily bound to give notice to persons already doing transport business upon any segment of the new routes declared or extended.

But apart from this aspect, the important question is whether this is a quasi-judicial act, impressed with that character which makes notice

essential. This Court appears to have uniformly held that, unlike the case of a grant or refusal of stage carriage permit, the declaration of a new

route or extension of an existing route was purely an administrative, and not a quasi-judicial act. In W. P. Nos. 66 and 121 of 1957 (Mad),

Rajagopalan J. observed that ''Sanction of a new route appears to me to be an order wholly administrative in its scope.

The same view was taken by Balakrishna Aiyar J. in W. P. Nos. 450 and 451 of 1958 (Mad). The learned Judge gave illustrations in this

context, and pointed out that the introduction of extra trains by the railway administration, or the opening of a new branch by an organisation like

the State Bank, could not be said to be judicial or quasi-judicial acts, notwithstanding the fact that this mignt conceivably affect the interests of

others. The same view appears to have been taken in W. A. No. 50 of 1957 of this Court. Nevertheless, Sri Nambiar argues that the declaration

of a new route, or the extension of existing routes are acts which are quasi judicial in character, upon tests applicable to this question, and he seeks

to support the argument with reference to the following authorities:

Rex v. Woodhouse, 1906 2 KB 501 related to the grant of provisional licences by certain Justice under the Licensing Act, 1904 and it was

held that this function was quasi-judicial and that a writ of certiorari would lie. Similarly, Rex v. Sunderland Justices, 1901 2 KB 357, is a decision

to the same effect, with reference to the Licencing Act of 1872. The test of the quasi-judicial character of an Act was enunciated in the famous

decision Rex v. Electricity Commissioners 1924 1 KB 171. Wherever any body of persons having legal authority to determine questions affecting

the rights of subjects, and having the duty to act judicially, acted in excess of such authority, they were subject to the controlling jurisdiction, of

prerogative writs. As far as this country is concerned, in Province of Bombay Vs. Kusaldas S. Advani and Others, Kania C. J. referred to the

English decisions, which lay down the test of existence of a proposition and an opposition, or of a lis. The Supreme court observed:

It seems to me that the true position is that when the law under which the authority is making a decision Itself, requires a judicial approach, the

decision will De quasi-judicial.

In Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh State Road Transport Corporation and Another, , Subba Rao J. had occasion to

consider the same test. Where the State Transport Undertaking, which was a statutory authority, threatened to infringe the rights of a citizen, the

citizen could object to the scheme on public grounds or personal grounds.

There is, therefore, a proposal and an opposition and the third party, the State Government, is to decide that lis and prima facie it must do so

judicially.

But it is difficult to see how this logic could be applied to the present facts. The scheme of nationalisation may involve a proposal when the State

Transport Undertaking applies for a permit, and there may conceivably be an opposition thereto. But when, u/s 43-A (2), the State Government

declares a new route or extends an existing route, after considering matters mentioned in Clauses (a) to (f) of Section 47 (1), it is exercising a

purely administrative power. It is very difficult to see how there are two parties, at that stage, or a proposal and an opposition and a lis. On an

analysis of the language of Section 47 (1) and Section 43-A (2), we are, further inclined to the view that the latter part of Section 47 (1)

concerning the right to make representations is really not taken in within the language of Section 43-A (2), namely, ""on a consideration of the

matters set forth In Sub-section (1) of Section 47."" Prima facie these words would appear to apply only to Section 47(1), Clauses (a) to (f):

Further, where the Government is acting u/s 43-A(2) for the express purpose of giving effect to Section 68-G (2), the power would appear to be

purely administrative, on the other argument that Section 68-B excludes the applicability of the provisions of Ch. IV altogether. Hence, we have to

come to the conclusion that the fact that some or any of these appellants did not have a hearing before the new routes were declared u/s 43-A (2),

does not amount to any infringement of right, it would not justify the issue of a writ of certiorari.

Sri Nambiar placed considerable reliance upon the decision of Rajagopalan J. in Raman and Raman (Private) Ltd., Kumbakonam Vs. The

State of Madras and Others, . Actually, that decision does not help him for several reasons. The facts of that case were very exceptional, and it

really related to an extension of a route to the prejudice of the petitioner who had all along objected to the extension of the route sought by the

third respondent. The learned Judge held that,

Principles of natural justice did, in the circumstances of this case, require the Government to give an opportunity to the petitioner,....to make his

representations to the Government before it exercised its jurisdiction u/s 43-A (2) to extend the existing route. The effect of the failure of the

Government to give the petitioner that opportunity has to be viewed against the background of the circumstances to which I have adverted."" It will

thus be seen that the learned Judge, Rajagopalan J. thought that, in view of the special and particular circumstances of that case, the Government

ought to nave given ""n opportunity to the petitioner before the extension of the route u/s 43-A (2) upon principles of natural justice. The learned

Judge further observed, upon the Interrelation between Section 43-A (2) and Section 47 (1) that we have discussed, that, ""that statutory obligation

carries with it a further implied obligation to give notice to such bus operator was the contention of the learned counsel for the petitioner, which I

am not now inclined to accept.

This decision, therefore, is no authority for the view that, in the present circumstances, the new routes could not have been declared without

notice to the concerned appellants, or without hearing such appellants, even for the specific purpose of giving effect to the beneficent provisions of

Section 68-G (2). We may observe that this case Raman and Raman (Private) Ltd., Kumbakonam Vs. The State of Madras and Others, was

finally dealt with by a Full Bench in Swami Motor Transport (Private) Ltd. Vs. Raman and Raman (Private) Ltd. and Others, in which the learned

Judges, merely referred to ""the further reason which was dealt with by Rajagopalan J. in Raman and Raman (Private) Ltd., Kumbakonam Vs. The

State of Madras and Others, , namely, that the order passed without giving an opportunity to Raman and Raman to make their representation"" in

affirming the decision itself. If there was no statutory right to be heard, and the act of declaration of the new route was not a quasi-judicial one, but

purely administrative in character, the question of the application of any principle of natural justice does not really arise, unless warranted by the

facts of an exceptional case. The facts in Raman and Raman (Private) Ltd., Kumbakonam Vs. The State of Madras and Others, were admittedly

exceptional, and we do not think that the decision applies here.

As we have already pointed out, though there were certain other minor points adverted to, they did not affect the substantial merits of the

appeals. For reasons discussed by us in detail above, we agree with the conclusion of the learned Judge, Ramachandra Iyer J. and hold that no

case was made out for the issue of a writ or certiorari quashing the grants of permits to displaced permit holders in any of these instances. Hence,

the appeals themselves fail and are dismissed with costs.