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Judgment
Manojit Bhuyan, J
Difference of opinion, as recorded in WP(C) 167/2019, on the findings and decision in WP(C) 1395/2018, has given rise to the present reference
before this Division Bench. Salient point for determination is as to whether, under the scheme of the relevant Act and Rules, the Assam State
Transport Corporation (in short, ASTC) can venture into the activity of operating an “authorized testing station†and/or whether there is legal
embargo for a ASTC to foray into the said activity for the purpose of issuance or renewal of a certificate of fitness to a transport vehicle. The statutes
relevant to the case are (i) The Motor Vehicles Act, 1988; (ii) The Road Transport Corporations Act, 1950; (iii) The Central Motor Vehicles Rules,
1989, and (iv) The Assam Motor Vehicle Rules, 2003.
In the first case under reference i.e. WP(C) 1395/2018, the learned Single Judge delivered judgment on 27.09.2018. The said writ petition was
instituted by different bus operator associations challenging a communication dated 20.11.2017, issued under the hand of the Secretary to the
Government of Assam in the Transport Department, whereby the Managing Director of ASTC was informed of the Government’s agreement to
the proposal with regard to grant of Letter of Authority to the ASTC for a period of 5(five) years under Rule 63 of the Central Motor Vehicles Rules,
1989 (hereinafter called the ‘Central Rules’) for operating authorized testing stations for issuing certificate of fitness to transport vehicles under
section 56 of the Motor Vehicles Act, 1988 (hereinafter called the ‘1988 Act’). Under challenge was also a subsequent Notification dated
11.01.2018, issued under the hand of the Commissioner and Secretary to the Government of Assam in the Transport Department, indicating grant of
approval to ASTC by the Governor of Assam for opening of Fitness Test Centres of commercial vehicles/any other vehicles as specified under Rule
63 of the Central Rules and section 56 of the 1988 Act, subject to fulfilment of all the conditions as laid down in said section 56 and the Central Rules.
It was also indicated that ASTC may take service charge of Rs.300/- for Light Motor Vehicles and Rs.500/- for Medium and Heavy Motor Vehicles,
apart from the statutory fees as prescribed, which amount is to be deposited to the Government exchequer. The said WP(C) 1395/2018 was answered
in the affirmative with observations and while doing so the learned Single Judge considered the provisions under section 19 of the Road Transport
Corporations Act, 1950 (hereinafter called the ‘Transport Corporations Act’), Rule 63 of the Central Rules, read with Form 39 and Form 40
thereunder and Rule 2(m) of the Assam Motor Vehicle Rules, 2003 (hereinafter called the ‘Assam Rules’). Conclusion was reached that
having regard to the definition of ‘Registering authority’ under the Assam Rules as well as the provisions under Rule 63 of the Central Rules,
the authorities issuing the aforesaid two Notifications dated 20.11.2017 and 11.01.2018, not being the Registering Authority, therefore, was not
competent to issue Letter of Authority. Further, having regard to the nature of the application made for grant of approval and the requirement of
submitting proposal in Form 40 under the Central Rules, it was held that the communication dated 20.11.2017 as well as the Notification dated
11.01.2018 cannot be considered as a culmination of a process taken under section 19 of the Transport Corporations Act. While setting aside both the
impugned communications, the learned Single Judge also held that with regard to the entitlement of the ASTC to venture into any activity, including the
activity of operating an authorized testing station, there would be no bar on ASTC to make appropriate application under section 19 of the Transport
Corporations Act. This observation was in the context of the conclusion arrived at in the preceding paragraphs of the judgment that as section 19(2)
(m) of the Transport Corporations Act provides power to do all things to facilitate the proper carrying on of the business of the Corporation with prior
approval of the State Government, thus, the activity of operating authorized fitness station can be construed to be an activity undertaken by ASTC for
proper carrying on of its business. The two relevant paragraphs i.e. paragraphs 11 and 20 of the said judgment dated 27.09.2018 are reproduced
hereinbelow :
“11. Section 19(i) of the Act of 1950 provides that the State Transport Corporation shall have the power to do all such activities enumerated
therein, whereas, Section 19(2) provides that the power conferred under Sub-Section 1 shall also include the power as described in Sub-Section 2.
Section 19(2) (m) provides for the power to do all things to facilitate the proper carrying of the business of the Corporation with prior approval of the
State Government. Accordingly, the activity of operating the authorized fitness center can be construed to be an activity undertaken by the ASTC for
proper carrying out of its business.
In view of the aforesaid conclusion, the communication dated 20.11.2017 and the notification dated 11.01.2018 are set aside. However, as a
conclusion had already been arrived that there is an entitlement of the respondent ASTC to venture into any activity including the activity of operating
an authorized testing station, although there is a statutory requirement under Section 19 of the Act of 1950 to obtain an approval for the same, setting
aside of the aforesaid communication and the notification shall not be a bar on the part of the respondent ASTC to make an appropriate application
under Section 19 of the Act of 1950.
In the event, any such application is made, the State respondent authorities shall strictly follow the procedure required under Section 19 and arrive at
its conclusion as to whether to grant or not grant such approval. Only upon such approval being granted under Section 19, the ASTC shall be eligible to
make further application under Form 40 of the Rules of 1989 for grant of Letter of Authority in Form 39, if they are otherwise, found fit but strictly by
following the procedure under Rule 63 of the Rule of 1989.â€
Following the aforesaid judgment dated 27.09.2018 in WP(C) 1395/2018, records go to show that on the basis of proposal dated 02.11.2018
submitted by ASTC, a Notification dated 17.12.2018 was issued under the hand of the Secretary to the Government of Assam, Transport Department,
whereby approval was accorded to ASTC to operate authorized testing stations in each districts of the State of Assam by realizing service charges in
the amount as indicated therein. The said Notification makes mention that on careful perusal and examination of the proposal submitted by ASTC as
well as the judgment rendered in WP(C) 1395/2018, together with the relevant provisions of the statute, it has been found that ASTC possesses
required qualification and is fit to comply with all the requirements as prescribed under Rule 63 of the Central Rules and that of the provisions under
the 1988 Act for setting up authorized testing stations.
Two persons joined hands to institute the second writ petition i.e. WP(C) 167/2019, assailing the aforesaid Notification dated 17.12.2018. Because
of the disagreement expressed in respect of the finding in WP(C) 1395/2018 that ASTC is entitled to carry on the business of running an authorized
testing station, the learned Single Judge reached an opinion vide Order dated 15.11.2019 that the issue be placed before the Hon’ble Chief Justice
so that it may be referred to a larger Bench for a conclusive decision on the issue. While rendering the said order dated 15.11.2019, the learned Single
Judge had taken note of the submission made on behalf of the writ petitioners that the conclusion arrived at in WP(C) 1395/2018 on the issue of
competency of ASTC to foray into the additional activity is per incuriam and would require examination, more so, when the conclusion was arrived at
without any discussion/submission by any of the parties to the litigation, which observation and conclusion can be had from paragraphs 11 and 20 of
the judgment dated 27.09.2018, which has been reproduced above. In conclusion, the learned Single Judge answered WP(C) 167/2019 as follows:
“22. The aforesaid observation of the learned Single Judge is required to be examined from the point of view of the statute holding the field. The
statements of objects and reasons of the Road Transport Corporation Act of 1950 are to provide efficient, adequate, economical and properly
coordinated system of road transport service. Road transport service itself has been defined in Section 2(e) of the said Act to mean a service carrying
passengers or goods or both by road in vehicles for hire or reward. ‘Ancillary Service’ as defined in Section 2 (a) is to mean subsidiary service
which provides amenities or facilities to persons making use of any road transport service of a Corporation. Though various powers have been vested
with the Corporation by Section 19 including to provide for Ancillary Service under Section 19 (1) (b) or even other things to facilitate the proper
carrying on of the business of the Corporation under Section 19 (2) (m), this Court is unable to agree with the conclusion that the activity of running an
Authorized Testing Station would either be an Ancillary Service or a thing to facilitate the proper carrying on of the business of the Corporation. If a
conclusion is arrived that there is no such power on the part of the Road Transport Corporations (ASTC herein), the requirements of further
adjudication will not arise. It may be mentioned on the basis of the observation made by the learned Single Judge in the earlier judgment that ASTC
was entitled to venture into the activity of operating an Authorised Testing Station.
In view of the aforesaid discussion and the fact that the finding of the learned Single Judge in the judgment and order dated 27.09.2018 is unable to
be agreed upon by this Court with regard to the observation that ASTC is entitled to carry on the business of running an Authorized Testing Station,
this Court is of the opinion that the issue may be placed before the Hon’ble Chief Justice to refer it to a larger Bench for a conclusive decision on
the issue.â€
Heard Mr. P.K. Goswami, learned counsel for the petitioners as well as Mr. N. Dutta, learned senior counsel for the Assam State Transport
Corporation and its Managing Director (respondent nos. 3 and 4), assisted by Mr. J. Roy, Advocate. Also heard Mr. U.K. Nair, learned senior
counsel for the State of Assam in the Transport Department and the various officials of the said Department so impleaded (respondent nos. 1, 2, 5, 6,
7 and 8).
Submissions, for and against, on the issue for determination intermingled with factual aspects relating to wherewithal of ASTC to foray into the
activity; the abject necessity and requirement for better qualitative fitness test for vehicles; the present grossly insufficient and inadequate motor
vehicles personnel to cope up with checking of fitness of the significantly increasing number of commercial vehicles; the present space constraints in
respective offices of the District Transport Officers for providing effective inspection and quality service with Pollution Under Control (PUC)
machines for issuing Fitness Certificate; the compromise made to road safety when vehicles are being normally inspected on the road-side due to
want of space etc. Separating grain from the chaff, that is, by not indulging into the said factual aspects, we confine ourselves only on the issue as to
whether it is legally permissible for an entity like ASTC to do activity as an operator of an authorised testing station. Whether there is legal embargo
forbidding ASTC to venture into the said activity.
The ASTC, as a body corporate, was established under the provisions of the Transport Corporations Act. Having regard to the objects and reasons
provided for in the said Act, the setting up of the transport corporation is primarily to provide efficient, adequate, economical and properly co-ordinated
system of road transport services. It is contended on behalf of the petitioners that “road transport service†is defined in section 2(e) of the
Transport Corporations Act and section 97 of the 1988 Act, to mean a service carrying passengers or goods or both by road in vehicles for hire or
reward. Also, “ancillary service†in section 2(a) of the Transport Corporations Act means any subsidiary service which provides amenities or
facilities to persons making use of any road transport service of a Corporation. It is contended that ancillary service is service to passengers and, by
no stretch of imagination, the meanings attached to the definitions in section 2(e) and 2(a) can encompass or include the service for operating an
authorised testing station. Referring to section 3 of the Transport Corporations Act, argument advanced is that the establishment of ASTC is only for
furthering the objectives indicated in clauses (a), (b) and (c) thereof, paramount consideration being the offering of advantages to the public, trade and
industry by the development of road transport; providing efficient and economical system of road transport service etc. Again, by no stretch of
imagination the additional activity by way of operating ‘authorised testing stations’ finds place in said section 3. Further, such activity is wholly
alien to the fundamental concept for which ASTC was established.
Referring to the core submissions on section 18 (General duty of Corporation) and section 19 (Powers of Corporation) of the Transport
Corporations Act, it would be of utmost importance to reproduce both the provisions :
“CHAPTER III
POWERS AND DUTIES OF CORPORATION
General duty of Corporation. â€" It shall be the general duty of a Corporation so to exercise its powers, as progressively to provide or secure or
promote the provision of, an efficient, adequate, economical and properly co-ordinated system of road transport service in the State or part of the State
for which it is established and in any extended area:
Provided that nothing in this section shall be construed as imposing on a Corporation, either directly or indirectly, any form of duty or liability
enforceable by proceedings before any Court or Tribunal to which it would not otherwise be subject.
Powers of Corporation: â€" (1) Subject to the provisions of this Act, a Corporation shall have powerâ€
(a) to operate road transport services in the State and in any extended area;
(b) to provide for any ancillary service;
(c) to provide for its employees suitable conditions of service including fair wages, establishment of provident fund, living accommodation, places for
rest and recreation and other amenities;
(d) to authorise the issue of passes to its employees and other persons either free of cost or at concessional rates and on such conditions as it may
deem fit to impose;
(e) to authorise the grant of refund in respect of unused tickets and concessional passes.
(2) Subject to the provisions of this Act, the powers conferred by sub-section (1) shall include
powerâ€
(a) to manufacture, purchase, maintain and repair rolling stock, vehicles, appliances, plant, equipment or any other thing required for the purpose of any
of the activities of the Corporation referred to in sub-section (1).
Explanation.â€"In this clause, the expression “manufacture†does not include the construction of the complete unit of a motor vehicle except for
purposes of experiment or research;
(b) to acquire and hold such property, both movable and immovable, as the Corporation may deem necessary for the purpose of any of the said
activities, and to lease, sell or otherwise transfer any property held by it;
(c) to prepare schemes for the acquisition of, and to acquire, either by agreement or compulsorily in accordance with the law of acquisition for the
time being in force in the State concerned and with such procedure as may be prescribed, whether absolutely or for any period, the whole or any part
of any undertaking of any other person to the extent to which the activities thereof consist of the operation of road transport services in that State or in
any extended area;
(d) to purchase by agreement or to take on lease or under any form of tenancy any land and to erect thereon such buildings as may be necessary for
the purpose of carrying on its undertaking;
(e) to authorise the disposal of scrap vehicles, old tyres, used oils, [any other stores of scrap value, or such other stores as may be declared to be
obsolete in the prescribed manner];
(f) to enter into and perform all such contracts as may be necessary for the performance of its duties and the exercise of its powers under the Act;
(g) to purchase vehicles of such type as may be suitable for use in the road transport services operated by the corporation;
(h) to purchase or otherwise secure by agreement vehicles, garages, sheds, office buildings, depots, land, workshops, equipment, tools, accessories to
and spare parts for vehicles, or any other article owned or possessed by the owner of any other undertaking for use thereof by the Corporation for the
purposes of its undertaking;
(i) to do anything for the purpose of advancing the skill of persons employed by the Corporation or the efficiency of the equipment of the Corporation
or of the manner in which that equipment is operated, including the provisions by the Corporation, and the assistance by the Corporation to others for
the provision of facilities for training, education and research;
(j) to enter into and carry out agreement with any person carrying on business as a carrier of passengers or goods providing for the carriage of
passengers or goods on behalf of the Corporation by that other person at a thorough fare or freight;
(k) to provide facilities for the consignment, storage and delivery of goods;
(l) to enter into contracts for exhibition of posters and advertising boards on and in the vehicles and premises of the Corporation and also for
advertisement on tickets and other forms issued by the Corporation to the public;
(m) with the prior approval of the State Government to do all other things to facilitate the proper carrying on of the business of the Corporation.
(3) Nothing in this section shall be construed as authorising a Corporation except with the previous approval of the State Governmentâ€
(i) to manufacture or maintain anything which is not required directly or indirectly for use for the purpose of the undertaking of the Corporation or to
repair, store, or provide any service for, any vehicle which does not belong to the Corporation or is not used directly or indirectly for the purpose of its
undertaking;
(ii) to purchase any vehicle for the purpose of sale to another person;
(iii) to sell or supply to any person lubricants, spare parts, or equipment for or accessories to, vehicles;
(iv) to let vehicles on hire for the carriage of passengers or goods except as expressly provided by or under this Act.
(4) Except as otherwise provided by this Act nothing in the foregoing provisions shall be construed as authorising the Corporation to disregard any law
for the time being in force.
(5) Where a Corporation acquires the whole or any part of an undertaking of any other person, the Corporation shall, in appointing its 3[officers and
other employees], take into consideration the claims of employees employed in that undertaking.
(6) The provisions of this section shall not be construed as limiting any power of a Corporation conferred by or under any subsequent provision of this
Act.â€
Having regard to the aforequoted section 18 and 19, it is submitted that even if the said provisions are viewed in bits and pieces and/or even by
necessary implication or intendment, nothing can be read into it to locate any power permitting ASTC to foray into the activity to operate an authorised
testing station. As regards section 19, it is contended that sub-section (1) thereof, particularly clauses (a) and (b), in so far as the present case is
concerned, lays down the genus of powers of the Corporation, which is limited only to operating “road transport service†and to provide for any
“ancillary serviceâ€, both expressions being clearly defined in section 2(e) and 2(a) respectively. Sub-section (2) of section 19 is stated to be the
species and that the powers specified from clauses (a) to (m) thereof are only relatable to and has nexus to sub-section (1) of section 19. By making
specific reference to section 19(2)(m), which would permit ASTC “to do all other things†for facilitating the proper carrying on of the
“business†of the Corporation with the prior approval of the State Government, it is argued that although the expression “all other thingsâ€
would, in general parlance, mean things not specified in clauses (a) to (l) of sub-section (2), it otherwise can only have nexus to the powers and
activities enumerated in sub-section (1). It is argued that “to do all other things†cannot mean foraying into other business or opening a route to
other business. Further, the expression “business†therein can only have nexus to its primary and existing business, which is relatable and
restricted to “road transport service†and “ancillary serviceâ€, which expressions have been defined in the statute. It is contended that the
activity to operate an authorised testing station is not at all relatable to road transport service or ancillary service and, thus, section 19(2)(m) does not
contemplate a Corporation established under section 3 to enter into a new venture. Referring to section 19(3)(i) of the said Transport Corporations
Act, in anticipation that a point may surface in the course of the proceedings that the same gives a legal window to provide any service,
notwithstanding sub-section (1) of section 19, submission made is that the expression “provide any service†appearing after the words “to
repair, store†cannot be interpreted to permit a Corporation to open new business even with the previous approval of the State Government. It is
submitted that according to the well-recognised rules of construction noscitur a sociis and ejusdem generis the wider and general words “provide
any service†has to be read with the associated specific words “to repair, storeâ€. Also, the meaning of the words “to repair, store†cannot
be stretched to mean the activity of operating an authorised testing station. On section 19(3)(i) it is further submitted that the said provision confines
the activities mentioned therein in respect of any vehicles which do not belong to the Corporation or is not used directly or indirectly for the purpose of
its undertaking. Argument advanced is that if this be the clear prescription in section 19(3)(i), then permitting the Corporation to enter into the business
of operating an authorised testing station would only lead to an anomalous and irreconcilable situation where the Corporation can inspect the vehicles
of private operators who are in competition but is forbidden to inspect its own vehicles. It is, therefore, contended that section 19(3)(i) do not open any
windows for ASTC to venture into the business of authorised testing station.
On behalf of the petitioners it is also contended that a legal bar, for ASTC to be permitted to enter into the activity of operating authorised testing
station, would also arise having regard to the declaration to be made against serial 6 of Form 40, appended to the Central Rules, which is the format
for making application for grant or renewal of letter of authority, enjoined under Rule 63(2) of the said Rules. It is contended that at serial 6 of the
application form the applicant is to declare whether it is involved/connected directly or indirectly in transport business and that any declaration made
would be a relevant consideration to be gone into while considering an application for grant of prior approval under section 19(2)(m). The issue of
conflict of interest is raised by pleading that since the vehicles of the Corporation ply on the routes in competition with the vehicles operated by private
operators like the petitioners, therefore, there is active competition involving financial interests of ASTC vis-a-vis the private operators. Thus, if ASTC
is authorised to operate authorised testing stations for the purpose of granting certificate of fitness, over and above its sole business of being engaged
in road transport service, the same would only introduce the element of conflict of interest, in that, it would enable ASTC the discretion to grant
certificate of fitness in respect of the vehicles belonging to the petitioners and other private operators. It is further submitted that going by the
definition of “authorised testing station†under sub-section (2) of section 56 of the 1988 Act, which means a vehicle service station or public or
private garage only, neither ASTC nor the petitioners, who are involved in road transport services, can undertake the said activity.
Further submission made on behalf of the petitioners is that at all times an owner of a vehicle has to be a distinct entity from that of a certifier of a
vehicle. The ASTC cannot be the owner and also the certifier and that this submission would find support from the legal principle that a person cannot
be a judge of his own cause. This argument is made in the context of section 56 of the 1988 Act, read with the first proviso thereto, which specifies a
requirement that in case of refusal to issue certificate of fitness, either by the prescribed authority or the authorised testing station, then reasons in
writing for such refusal has to be supplied to the owner of the vehicle. It is, therefore, contended, can there be a situation where the owner of any
vehicle is the Corporation and the same Corporation be empowered to issue certificate for its own vehicles or, in case of refusal, supply reasons for
such refusal regarding its own vehicles. It is stated that from such paradox stems the importance and significance of serial no. 6 of Form 40, so as to
ascertain whether the certifier is different from the owner of any vehicle and vice-versa.
Arguments on behalf of ASTC opens with the note that a mere perusal of the order passed in WP(C) 1395/2018 would go to show that the
observation made therein on the competency of ASTC to foray into the activity of operating authorised testing stations was on the basis of categorical
submissions made by ASTC as to the provisions of not only section 19(2)(m), but also to section 19(3)(i) of the Transport Corporations Act. It is
stated that paragraph 5 of the order in WP(C) 1395/2018 would vindicate the same and, therefore, it would not hold in good stead to say that the
observation in WP(C) 1395/2018 came by without any discussion/submission by any of the parties to the litigation. Rather, it is the order passed in the
second writ petition i.e. WP(C) 167/2019 wherein, while mentioning and reproducing the relevant statutes, including section 19(2)(m), no whisper was
made to section 19(3)(i) of the Transport Corporations Act.
Giving primacy to the Statement of Objects and Reasons in enacting the Transport Corporations Act, it is submitted on behalf of ASTC that setting
up of transport corporations are with the object of “providing efficient, adequate, economical and properly co-ordinated system of road transport
serviceâ€. Emphasis is laid that it is only with financial stability that ASTC can effectuate and give complete meaning to the said object. Therefore, the
word “business†in section 19(2)(m) has to be read in the context of the Statement of Objects and Reasons. Elaborating on the definitions of
“ancillary service†and “road transport service†in sections 2(a) and 2(e), it is submitted that the same are only definitions and are not the
source of any power or duty. The powers of a Corporation are given in sub-section (1) of section 19. Extended and wider powers are given under
sub-section (2) thereof, as is apparent from the use of the word “include†in the opening lines of said sub-section (2). It is contended that although
sub-section (1) of section 19 vests power on a Corporation to do activities relatable to road transport services and ancillary service, both expressions
as defined in the statute, the extended and wider powers given under clauses (a) to (m) of sub-section (2) cannot be said that all such powers have
nexus or are relatable to the activities referred to in sub-section (1). Specific illustrations are made that whereas the powers mentioned in clause (a) of
sub-section (2) are categorically shown to have nexus to the activities provided for in sub-section (1), the clauses (b), (e) and (l) of the same sub-
section (2) marks a clear departure, in that, it is not relatable to any of the activities under clause (a) and (b) of sub-section (1) of section 19. It is
contended that, ex-facie, the activities of leasing, selling, transferring of property held by the Corporation; authorising disposal of scrap vehicles, old
tyres, used oils or such stores declared to be obsolete; entering into contracts for exhibition of posters and advertising boards in the vehicles and
premises of the Corporation and in making advertisements on tickets issued by the Corporation to the public, cannot have any bearing with the
activities referred to in sub-section (1). As contended, the exercise of powers given under said clauses (b), (e) and (l) have been incorporated to give
meaning to section 18 of the same Act, where the general duty of a Corporation is given so to exercise its powers, “as progressively to provide or
secure or promote the provision of, an efficient, adequate, economical and properly co-ordinated system of road transport services in the Stateâ€,
which can only be possible by generating funds. Apparently, the activities under powers given at clauses (b), (e) and (l) of sub-section (2) are not
relatable to sub-section (1) of section 19 and, in exercising such powers, no prior approval of the State Government is required.
Referring to section 19(2)(m) of the Transport Corporations Act, it is contended on behalf of ASTC that, subject to prior approval of the State
Government, it confers more wider powers to a Corporation, even to go beyond the preceding clauses (b), (e) and (l). It is submitted that although not
pleaded by the petitioners, it would be important to put to rest any future debate that there is no common genus or anything of the same kind in clauses
(a) to (l) of section 19(2) â€" clauses (b), (e) and (l) being a class or category apart. Therefore, the words “to do all other things†in clause (m)
cannot be interpreted or construed to be restricted to activities constituting a category or a genus or a family. Thus, it is contended, that if specified
things from clauses (a) to (l) preceding the general words “to do all other things†belong to different categories or are heterogeneous, the rule of
construction ejusdem generis will not apply. With regard to the word “business†in the said clause (m), it is argued that the same cannot be given
a meaning to encompass existing business and that which are relatable and restricted to “road transport service†and “ancillary service†only.
It is argued that a purposive interpretation to the word “business†should be given, in tandem with what is provided in the statute itself at clauses
(b), (e) and (l), which are activities permitted to a Corporation to do business of leasing, selling etc., which are in no way relatable to road transport
service or ancillary service, so defined.
Referring to section 19(3)(i), it is submitted that like section 19(2)(m), the words “provide any service for†has no common genus with the
preceding words “manufactureâ€, “maintainâ€, “repair†and “storeâ€. There is no compatibility between the specific and general words
and, therefore, the words “provide any service for†in section 19(3)(i) cannot be construed ejusdem generis. It is, therefore, contended that
section 19(3)(i) permits ASTC to provide any service, including the service as an operator of authorised testing station.
On the issue as to whether, in the context of section 56 read with the first proviso to the 1988 Act, coupled with the settled principle of law that a
man cannot be a judge of his own cause, the Corporation can be the owner and certifier at the same time, submission made is that, first and foremost,
there is no such bar in section 56. Further, to test any argument that the certifier cannot be the owner or vice-versa, the same has to be tested by
maintaining parity with the power ascribed to the “prescribed authority†in section 56, which is another authority, besides an authorised testing
station, empowered to issue certificate of fitness. It is submitted that the “prescribed authority†competent to issue certificate of fitness, under the
Assam Rules, is the Motor Vehicle Inspector. Such certificate, however, must be countersigned by the District Transport Officer. Both the authorities
being government officers under the control of the Transport Department, Government of Assam, it is argued that if such government officials can
also certify fitness of government vehicles, and are also competent to give reasons for refusing to grant certificates in respect of government vehicles,
parity has to be drawn with ASTC as likewise being competent to certify or refuse to certify its own vehicles. In this connection, an argument is
placed that assuming ASTC is without competency to certify its own vehicles, the power to certify other vehicles cannot be taken away. As regards
the issue raised on conflict of interest, having regard to serial 6 of Form 40, it is submitted that going by the substantive provisions of Rule 63 of the
Central Rules, it does not create or imply any bar, as has been argued by the petitioners. Further, it cannot be interpreted to operate as a restrictive
clause for ASTC, inasmuch as, calling upon the Court to interpret serial 6 of Form 40 as imposing restrictions, would tantamount to asking the Court to
enter into legislative domain.
Senior counsel representing the state respondents delved at length on the issues arising for determination. Submissions made were more in sync
with those argued on behalf of ASTC and, as such, repetition is eschewed. An aspect, however, was highlighted to say that ASTC was failing to give
meaning to the object for which it was established due to financial instability. Be that as it may, it is submitted that even if section 19(2)(m) of the
Transport Corporations Act empowers ASTC “to do all other things†with the prior approval of the State Government, it would not ipso facto give
licence to ASTC to foray into the activity of operating authorised testing station, unless it has the wherewithal to enter into the activity by first
satisfying the registering authority of its eligibility and entitlement to a letter of authority, tested on the rigour of sub-rule (3) of Rule 63 of the Central
Rules. While at Rule 63, it is submitted that consideration of an application under Form 40 does not provide any negative parameters and, if at all serial
6 thereof is read to exclude ASTC, such interpretation would automatically render serial 5 of Form 40 â€" “Experience in automobile workshopâ€
â€" as a wholly redundant and irrelevant query in the application form itself. This, as contended, cannot be the intention of the legislature.
Hearing of this case through remote video-conferencing spread over several dates by taking out as much time as the business of the Court
permitted, besides the regular matters listed for consideration in the daily cause list. Although there have been exhaustive submissions from both sides,
we are convinced that consideration and an answer to the issue referred to us does not involve long and arduous debate. The rulings placed by the
parties in support of their contentions are not gone into, as we are of the view that an answer to the reference is trapped within the statute itself i.e.
the Transport Corporations Act, and nothing more is required to be gone into. The rain of rulings would only add to the volume and not to the weight of
the answer to the reference. To start with, section 19 of the Transport Corporations Act is taken up. Sub-section (1) of section 19 deals with the
powers of a Corporation and, among other which are not relevant to the present reference, empowers the Corporation to operate road transport
services in the State and in any extended area, as well as to provide for any ancillary service. Both the services are defined in section 2(e) and 2(a)
respectively as follows :
“(e) “road transport service†means a service carrying passengers or goods or both by road in vehicles for hire or reward;â€
(a) “ancillary service†means any subsidiary service which provides amenities or facilities to persons making use of any road transport service of
a Corporation;†“
Undoubtedly, the employment of the word ‘means’ in sections 2(e) and 2(a) makes the definitions restrictive and exhaustive. Thus, the powers
of a Corporation under the afore-quoted clause (a) and (b) of sub-section (1) of section 19 can be read only to the extent as provided in the definitions
of “road transport services†and “ancillary serviceâ€. The context undergoes perceptible change in the sub-section (2) of section 19, where
extended and wider powers than in sub-section (1) have been conferred upon a Corporation, as would be evident from the employment of the word
‘include’ in the opening lines of sub-section (2) as well as from the activities mentioned in clauses (a) to (l) thereof. Apparently, the exercise of
powers and activities from clauses (a) to (l) do not require any prior approval of the State Government. Powers limited to road transport services and
ancillary service under sub-section (1) are widened in sub-section (2), some of them not even remotely relatable to road transport services or ancillary
service, as defined. Whereas, the powers under clause (a) of sub-section (2) are statutorily made relatable to activities referred to in sub-section (1),
specific instances can be had from clause (b), (e) and (l) of sub-section (2), which activities finds no relation or nexus to activities encompassing
“road transport services†or “ancillary service†under sub-section (1). In our considered view, the powers given to a Corporation to undertake
the activities as specified in clause (b), (e) and (l) of sub-section (2), that is the activity to lease, sell, transfer any property held by the Corporation; to
authorise the disposal of scrap vehicles, old tyres, used oils or such other stores as may be declared obsolete; and to enter into contracts for exhibition
of posters, advertising boards in the vehicles and premises of the Corporation etc., these activities, without doubt, can only be for the purpose of
generating or augmenting the funds of the Corporation and without doubt, are not activities relatable or cognate to either “road transport servicesâ€
or “ ancillary serviceâ€. Thus, under the statutory scheme of the Transport Corporations Act itself, the powers to undertake activities, as conferred
to a Corporation, are not restricted with relation to only road transport services and ancillary service alone.
Having held as above, the scope and ambit of clause (m) under sub-section (2) of section 19 may now be looked into. First and foremost, clause
(m) can come into play only when there is prior approval of the State Government and what is permissible with prior approval is the power “to do
all other things†in the first place. Under the rules of interpretation, the words above within quotes, must be expounded in a manner so as to give full
effect to the meaning of the clause, to make it workable and not render it otiose. To do all other things in clause (m), with prior approval of the State
Government, can only be things or activities not enumerated in the preceding clauses (a) to (l), where prior approval of the State Government is not a
requirement. In other words, the power “to do all other thingsâ€, must be attributed its ordinary meaning, that is, the power to do something beyond
the activities, relatable or not, to road transport services or ancillary service, which power, however, can be exercised only with prior approval of the
State Government. This finding must be understood in relation to the finding expressed in the immediately preceding paragraph that, having regard to
the nature of the clauses from (a) to (l) of sub-section (2), it cannot be said that powers conferred to a Corporation to undertake such activities from
clauses (a) to (l), are restricted to road transport services or ancillary service alone. The expression “to do all other things†in clause (m) is
followed by the expression “to facilitate the proper carrying on of the business of the Corporationâ€. The key words are “to facilitate†and
“businessâ€. Dictionary meaning of the former is “to make easy or easierâ€. Apparently, “business†is not defined in the Transport
Corporations Act. However, the said word has to be given a purposeful meaning. Amongst the business activities envisaged in sub-section (2) of
section 19, it encompasses the power to enter into contracts as per clause (l); to lease, sell, transfer property as per clause (b); and to dispose of scrap
vehicles etc. as per clause (e). These business activities, without dispute, are not relatable and restricted to “road transport services†and
“ancillary serviceâ€. The word “business†in clause (m) cannot be given a narrow meaning nor interpreted in a manner so as to introduce
repugnancy amongst the clauses itself or between sub-section (1) and sub-section (2) of section 19. The powers of a Corporation in sub-section (1)
and sub-section (2) are varied. Wider powers are assigned in clauses (a) to (l) in sub-section (2) and not all of the said clauses are made to serve
“road transport services†or “ancillary serviceâ€. At clause (m) of sub-section (2), powers are again enlarged and widened, on condition of
prior approval. “Businessâ€, which is not defined in the Transport Corporations Act, cannot be interpreted to say that it means only primary and
existing business relatable to “road transport services†and/or “ancillary serviceâ€. This interpretation, in view of discussions above, would be
far-fetched.
The “business of the Corporationâ€, in the context of the powers under clause (b), (e) and (l) of sub-section (2) of section 19, are clearly
activities to generate funds. Augmentation of funds is directly proportionate to the general duty of a Corporation, as enshrined in section 18, “so to
exercise its powers, as progressively to provide or secure or promote the provision of, an efficient, adequate, economical and properly co-ordinated
system of road transport services in the State….â€. If “business†is to mean only existing business relatable to road transport services or ancillary
service, as argued, what would be the legislative intent of empowering a Corporation “to do all other thingsâ€. Clearly, the said words in the statute
cannot be regarded as having no meaning. Even at the expense of repetition, “to do all other things†are wider activities beyond what is
contemplated in clauses (a) to (l) of sub-section (2). The term “business†would take within its fold such business other than road transport
services or ancillary service and/or those provided in clauses (a) to (l), however, with prior approval of the State Government, but sub-serving the
object for which it is established. We would add that when words of a statute are clear, plain and unambiguous, the courts are bound to give effect to
that meaning irrespective of consequences and also having regard to the context and setting in which the words are placed.
The rule of ejusdem generis (‘of the same kind’) finds no application in clause (m) of sub-section (2) of section 19. It is a cardinal rule of
construction that when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as
limited to things of the same kind as those specified. It is settled law that the rule of ejusdem generis is applicable when â€" (1) the statute contains an
enumeration of specific words; (2) the subjects of enumeration constitute a class, category or genus; (3) that class or category is not exhausted by the
enumeration; (4) the general terms follow the enumeration; and (5) there is no indication of a different legislative intent. Tested on the anvil above, it is
seen that clause (m) is placed in sub-section (2). The subjects of enumeration from clauses (a) to (l) are heterogeneous, as has been discussed in the
preceding paragraphs. The subjects of enumeration from clauses (a) to (l) do not constitute a class, category or genus. The general words “to do
all other things†in clause (m) do not take colour from a distinct genus or category. So placed, there is clear intention of the legislature of the
inapplicability of the rule of construction ejusdem generis in the said clause (m).
Tested on the same yardstick regarding applicability or otherwise of the rule of ejusdem generis, an exposition to clause (i) of sub-section (3) of
section 19 would provide a different answer. The general words “provide any service for†are preceded by the specific words “to repair,
storeâ€. The said enumerated and specific words before the general words clearly constitute a category or a genus or a family. In providing any
service connected to repairing or storing of any vehicle, which does not belong to the Corporation or is not used directly or indirectly for the purpose of
its undertaking, there is no conflict of enumeration or items between the specific words and the general words. Thus, the words “to provide any
service for†has to be construed ejusdem generis to the preceding specific words “to repair, storeâ€. As such, clause (i) of sub-section (3) cannot
be interpreted to open a new vista to a Corporation by allowing disguised play on the words “to provide any service forâ€.
Turning to the question whether a Corporation can be the owner of a vehicle and also the certifier of the vehicle at the same time, first and
foremost, we would observe that no embargo is placed by section 56 of the 1988 Act. While dealing with this issue it would be pertinent to bear in
mind that it is settled law that it will be contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Court
has no power to reframe the legislation for the very good reason that it has no power to legislate. The legal principle that a person cannot be a judge of
his own cause, placed in the context of section 56 of the 1988 Act, we are afraid that the same has no application. We find force in the submissions
made on behalf of ASTC that in the context of section 56, read with the first proviso to the 1988 Act, the Corporation can be the owner and certifier
at the same time. Indeed, an answer to the issue has to be rendered by reading the entire provision and by maintaining parity with the similar role
assigned to the “prescribed authority†in section 56, besides an “authorised testing stationâ€. This gains significance because under the scheme
of section 56 powers is conferred to two entities i.e. the “prescribed authority†and an “authorised testing station†to issue certificate of
fitness. When the “prescribed authorityâ€, being the Motor Vehicle Inspector as per the Assam Rules and who is a government officer under the
control of the Transport Department, Government of Assam, is made competent to issue or refuse, by giving reasons, certificate of fitness to vehicles
belonging to the government itself, on the same yardstick, can it lie in the mouth to say that a transport corporation, like the ASTC, cannot certify or
refuse by giving reasons to certify its own vehicles. Parity has to be maintained between the “prescribed authorityâ€, who is the Motor Vehicle
Inspector and a government official, on one hand and, on the other, an operator of “authorised testing stationâ€, be it a transport corporation like the
ASTC or a private operator like the petitioners, who may also qualify to be entitled to a letter of authority subject to initially overcoming the rigour of
sub-rule (3) of Rule 63 of the Central Rules. On the issue of conflict of interest with reference to serial 6 of Form 40, we are of view that considering
the substantive provisions of Rule 63 of the Central Rules, the same does not operate as restricting ASTC to make application and to be entitled to for
grant or renewal of letter of authority. Like all other queries in Form 40 for the applicant to answer, the query at serial 6 is likewise a relevant
consideration to be gone into, but the same cannot be read as imposing restrictions. The query at serial 6 cannot be isolated to give a different
interpretation by totally ignoring the rest. A homogeneous reading must be the order of the day. Thus, this court cannot be called upon to interpret
serial 6 of Form 40 to impose restrictions on ASTC. To do so, would be asking the Court to enter into legislative domain.
For the foregoing reasons, we have no hesitation to hold that clause (m) of sub-section (2) of section 19, not clause (i) of sub-section (3) of section
19, of the Transport Corporations Act, empowers ASTC, being a Corporation established under section 3 of the said Act, to venture or foray into the
activity of operating an authorised testing station for the purposes of section 56 of the 1988 Act subject, however, to prior approval of the State
Government as well as subject to entitlement to letter of authority in terms of Rule 63 of the Central Rules. The words “to do all other things†in
clause (m) of sub-section (2) of section 19 of the Transport Corporations Act would take within its fold the activity of ASTC to operate “authorised
testing station†and the word “business†therein cannot be given a meaning by restricting it to business relatable to “road transport servicesâ€
and “ancillary serviceâ€, so defined in the said Act. No legal embargo is discerned or perceived prohibiting ASTC from operating authorised testing
station, after the grant of letter of authority in accordance with law.
The reference stands accordingly answered. Registry is directed to place the matter before the appropriate Bench for consideration of the writ
petition on its factual matrix.