C.M. Chacko vs G. Korah Punnen and Others

Menon, J.—The order of reference reads as follows:

The fate of this petition will essentially depend on the question whether Section 47(1)(e) of the Motor Vehicles Act, 1939, is ''intra vires'' of the Constitution or not. If the said Sub-section is ''ultra vires'', the chances are that no other question will arise for consideration and that this petition will have to be allowed.

Section 47(1)(e) of the Motor Vehicles Act, 1939, reads as follows:

47(1). A Regional Transport Authority shall in deciding whether to grant or refuse a stage carriage permit have regard to the following matters, namely-

(e). the operation by the applicant or other transport services and in particular of unremunerative services in conjunction with remunerative services.

In - Moti Lal and Others Vs. The Government of the State of Uttar Pradesh and Others, the judgment dealt with Clauses (d), (e) and (f) of Section 47(1) and said:

Clauses (d), (e) and (f) are clearly matters which must be considered by the Regional Transport Authority in issuing, or refusing to issue, a permit, and I cannot see how they can be said to be contrary to the provisions of Article 19 of the Constitution.

In - C.S.S. Motor Service, Tenkasi and Others Vs. The State of Madras and Another, paragraph 32 a different view has been expressed:

Can transport authorities take into consideration that the existing operators are running other services which are not remunerative and can they grant permits to them with a view to compensate them for those unremunerative services? This will be clearly opposed to Article 19(6) under which the restriction imposed must be in the interests of the public and not in the interests of particular individuals.

In view of the conflict of opinion and the Importance of the question I refer the petition for disposal to a Division Bench of this Court.

We have gone into the question in detail and our conclusion is that Section 47(1) (e) of the Motor Vehicles Act, 1939, is ''intra vires'' of the Constitution and that we must respectfully decline to adopt the reasoning in C.S.S. Motor Service, Tenkasi and Others Vs. The State of Madras and Another,

If a power to give some weightage in favour of those who run unremunerative services is not available in the matter of allotting services which are remunerative, the unremunerative services will never be undertaken or will soon collapse and the public will suifer as a result. Maximum facilities for efficient and speedy transport throughout the state must be the goal in a fast moving age and (sic) in order to ensure such a maximum there has to be an admixture of the services that pay and the services that don''t, an enabling provision in that behalf cannot but be in the interest of the public. The undesirable alternative will be the absence of services along those routes which do not provide the operators with an adequate return and the consequent inconvenience to the public at larve.

No other question was argued before us and as we take the view that Section 47(l)(e) of the Motor Vehicles Act, 1939, is ''intra vires'' of the. Constitution this petition has to be dismissed, and we do so with costs, Advocate''s fee Rs. 100/- for the 1st Respondent and a like amount for Respondents 2 and 3 together.