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Judgment
1.The abovementioned batch of writ petitions have been filed by certain transport operators in Tamil Nadu for
(a) issue of a Writ of Certiorari to quash G.O.Ms. No. 1794 Home (Transport-D) Department dated 6-8-1990 and for a Mandamus restraining
the respondents from implementing the said G.O.Ms. No. 1794 Home (Transport-D) Department dated 6-8-1990 or in any other manner
interfering with the plying of the vehicles of the petitioners concerned (relating to W.Ps. Nos. 13990, 13997, 14006, 14012, 14015, 14040,
14044, 14057, 14059, 14088 and 14409 of 1990).
(b) issue of a writ of Declaration/ Mandamus to declare that the L. A. Bill 42/87 passed by the Legislative Assembly of Tamil Nadu has become a
law in force on the day when it received the assent of the President of India in March, 1989 (relating to W.P. Nos. 13991, 13996, 14007, 14013,
14014, 14039, 14043 and 14087 of 1990).
(c) issue of a writ of Mandamus directing the Government of Tamil Nadu to forthwith publish in the Tamil Nadu Government Gazette, L.A. Bill
No. 42 of 1987 which was passed by the Tamil Nadu Legislature and which has received the assent of the President of India (relating to W.P.
Nos. 13998, 14008, 14011, 14016, 14041, 14042, 14058, 14060, 14087, 14279 and 14280 of 1990).
Chapter IV-A of the Motor Vehicles Act, 1939 (Central Act IV of 1939), hereinafter referred to as the ''Act'', which was inserted in the year
1956, provides for nationalisation of routes. Under S. 68-C of 1939 Act where any State Transport Undertaking is of opinion that for the purpose
of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road
transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by
the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the Slate Transport Undertaking
may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such
other particulars respecting thereto as may be prescribed and shall cause every such scheme to be published. S. 68-D of the 1939 Act provides
that any person already providing transport facilities by any means along or near the area or route proposed to be covered by the scheme; any
association representing persons interested in the provision of road transport facilities, may raise such objections within the time specified therein
and also provides that the Government, after considering the objections by providing opportunity to those persons who filed objections, may
approve or modify the scheme and that the scheme so approved or modified shall be published in the official Gazette and the same shall thereupon
become final, which may be called as an approved scheme.
The effect of the approved scheme is that private operators other than those specified in that scheme itself, cannot operate in the routes
nationalised"" in view of S. 68-FF of the 1939 Act. As per S. 68-FF of the 1939 Act, the State Transport Authority or the Regional Transport
Authority, as the case may be, in respect of any notified area or notified route covered by the approved scheme, shall not grant any permit except
in accordance with the provisions of the scheme, provided that where no application for a permit has been made by the State Transport
Undertaking, they were given the discretion to grant temporary permit subject to the condition that such permit shall cease to be effective on the
issue of a permit to the State Transport Undertaking in respect of that area or route.
After the introduction of Chap. IV-A of 1939 Act about 400 routes were notified under Chapter IV of 1939 Act between the years 1968 and
1977. The State Transport Undertaking operated their buses from terminus to terminus and the existing bus operators who were operating an
overlapping sectors thereof, but not on the entire route were not disturbed. In fact, the names of the private operators operating on the sectors of
the route were included in Annexure II to the scheme and those persons whose names were included in Annexure II to the scheme were permitted
to operate on the sectors.
While so, the State Government published an approved scheme under S. 68-D of the 1939 Act in the Tamil Nadu Government Gazette in
respect of the route Madurai to Kumuli authorising the Pandiyan Roadways Corporation Ltd., to run its stage carriages on that route. The scheme
excluded completely all other persons from operating their stage carriage services under permits covering the entire route, except those persons
whose names were mentioned in Annexure II to the said scheme. One of the operators, by name Egappan, who was not running the stage carriage
on any part or sector of the route in question on the date of the publication of the scheme and whose name was not included in Annexure II, was
able to secure the variation of the said permit from the Regional Transport Authority, which enabled him to operate on a portion of the route
covered by the scheme. Though the Pandiyan Roadways Corporation Ltd., filed an appeal against the grant of variation, the Pandiyan Roadways
Corporation did not pursue further after the appeal was dismissed by the appellate authority. The said operator, M. A. Egappan again applied for
variation which was granted by the Transport Authority, which was the subject-matter of an appeal before the appellate authority and thereafter
the revision before the High Court, but they were rejected by the appellate authority as well as by the High Court. Aggrieved by the said order, the
Pandiyan Roadways Corporation Ltd., preferred Civil Appeal No. 1758 of 1986 before the Supreme Court. After hearing the said civil appeal,
the Supreme Court, by order dated 24-2-1987 allowed the appeal and the decision of the Supreme Court is reported in Pandiyan Roadways
Corporation Ltd. Vs. M.A. Egappan, . In that case, the Supreme Court has observed as follows (para 6) :--
We do not agree with the contention urged on behalf of the respondent that on a true construction of the scheme only persons who are operating
their stage carriages under permits issued in respect of the entire route from Madurai to Kumuli alone have been excluded under the approved
scheme and not those who are operating between any two places on the notified route or between any place lying outside the notified route and a
place on the notified route even though they may be operating on a portion of the notified route. We are firmly of the view that on the entire notified
route between Madurai and Kumuli or any part thereof apart from the State Transport Undertaking no person other than those mentioned in
Annexure II to the approved scheme can operate a stage carriage service. We, therefore, direct the respondent not to operate his stage carriage
on the sector in respect of which he has obtained the variation of his permit.
The effect of the said decision is that no private operators other than those mentioned in Annexure II to the approved scheme could operate stage
carriage service on the notified route. The other operators cannot even operate stage carriage on the sector in respect of which he has obtained
variation of his permit. The effect is that the private operators in respect of nationalised route are not only prohibited from running their buses from
point to point but also on the sectors of the routes also.
In order to overcome the difficulty faced by the operators by reason of the judgment of the Supreme Court, referred to hereinabove, the
Government issued G.O. Ms. No. 2222, Home, dated 18-9-1987 whereby private operators were permitted to continue their operation on routes
covered by draft schemes and approved schemes with the facility to get variation of permits, replacement of vehicles, transfer of permits, renewal
of permits etc. The Government also requested the Transport Commissioner to issue necessary instructions to the Transport Authorities to allow all
existing permits or/ operators to continue to operate their services, to allow renewal of permits, transfer of permits, variation of permits,
replacement of existing buses, to convene timing conference to fix and revise the timings in respect of permits of private operators irrespective of
the fact whether the routes are covered by approved schemes or draft scheme. Again the Government by letter dated 11-4-1988 issued
instructions to the Transport Undertakings that the State Transport Undertakings need not oppose the renewal applications of the private operators
and need not prefer appeals before any of the forums in respect of renewals, but permitted the State Transport Undertakings to oppose variations.
In the meantime, the Government introduced the Bill L.A. 42 of 1987, hereinafter referred to as ""The Bill 42/87"" to make certain special
provisions in respect of permits for stage carriages under the 1939 Act and in relation to the schemes and routes notified under Chapter IV of
1939 Act and to provide for matters connected therein. It is specified in the Statement of Objects and Reasons that ""the policy of the Government
is to nationalise the bus service operated by the private operators on end to end route and to allow them to operate on sectors of the route. In view
of the judgment of the Supreme Court, referred to above, there is a possibility of rejecting the applications by the private operators for grant of
renewals and variations in respect of their stage carriage which they are operating on notified routes and on routes covered by draft schemes
published under S. 68-C of the 1939 Act. It was, therefore, decided to grant permits to small operators and also new entrants to ply their stage
carriages on any portion of the area or route covered by the draft schemes or the approved schemes and also to provide for the variations of the
conditions of the permit. It was also decided that the existing small operators who are operating buses on the sectors of the notified route and on
the routes covered by draft schemes to continue their operation. It was, therefore, decided to undertake legislation so as to make the small bus
operators to continue to operate their buses on the notified routes and on the routes covered by draft schemes."" After the introduction of the Bill
and before its consideration by the Assembly, an official amendment contrary to the Statement of Objects and Reasons was introduced permitting
the private operators not only in the sectors of the nationalised route but also from point to point of the nationalised route. The said Bill 42/87 was
passed by the legislature on 13-11-1987 was reserved by the Governor for consideration of the President and was forwarded to the Government,
Ministry of Home Affairs, for assent of the President of India.
In the meantime, Motor Vehicles Act, 1988 (Central Act, 1988), hereinafter referred to as ""the 1988 Act"" came into force with effect from 1-7-
1989. As per S. 217(1) of the Motor Vehicles Act, 1988, the Motor Vehicles Act, 1939 and any law corresponding to that Act in force in any
State immediately before the commencement of the 1988 Act in the State are thereby repealed. The factum of the commencement of the 1988 Act
was not brought to the notice of the President before the assent was made to the Bill 42/87 and from the note circulated to the President for
obtaining the assessment of the Bill 42/87, it is nowhere stated that the 1988 Act came into force with effect from 1-7-1989 and that the 1939 Act
was thereby repealed and that the provisions contained in the Bill 42/87 were repugnant to the provisions of 1988 Act and other related
particulars. The note contained with reference to the effect of the Supreme Court judgment and the object with which the said special provisions
were proposed to the 1939 Act. The Bill 42/ 87 received the assent of the President on 11-3-1989. Thereafter, the present Government of Tamil
Nadu considered and decided that since the essence of the Bill contradicts the nationalisation policy already enunciated between 1967 and 1976
and to which the present Government continues to stand committed not to publish the Bill 42/87. Necessary steps are being taken to give effect to
the decision. Thereafter, the Government issued G.O.Ms. No. 1794 Home (Transport-D) Department dated 6-8-1990, which is as follows :--
GOVERNMENT OF TAMIL NADU,
ABSTRACT
Motor Vehicles -- Stage Carriages Nationalisation of Bus Route -- plying of Stage Carriages by Private Operators on notified route and route
covered by Draft Schemes -- instructions issued.
----------------------------------------------------------------------------------------------------------
Home (Transport-D) Department
G.O.Ms. No. 1794 Dated 6-8-1990
Read :--
G.O.Ms. No. 2222, Home, dt. 18-9-87
Lr.Ms. No. 826, Home dt. 11-4-67.
ORDER
The Government have decided to cancel the confidential/secret instructions issued in the G.O.Ms. No. 2222, Home, dated 18-9-87 and letter Ms.
No. 826 dated 11-4-88 and the above instructions are hereby cancelled accordingly. The Transport Commissioner is requested to communicate
the above orders to all the Regional Transport Authorities by way of secret D.O. letter with instructions to keep the D.O. letter in their personal
custody.
The Government have also decided that the Private Operators in the approved scheme routes, who have not been specifically permitted by the
Govenment while approving the scheme and who are operating the approved scheme routes by opening permit subsequently, have to be
eliminated. The Transport Department, is therefore, requested to give effect to the above orders of Government either by following the procedure
contemplated under S. 105(4) of the Motor Vehicles Act, 1988 or by applying for permit at the time of the expiry of the permit of Private
Operators.
The Government have also decided that even Private Operators who have been specifically allowed to operate in the entire approved scheme
route as well as in the sector or overlapping distances, have also to be eliminated so as to be in keeping with the present policy of Government
which is based on the Supreme Court judgment in Pandiyan Roadways v. Egappan case. In order to implement the above decision, the Transport
Department is requested to instruct the State Transport Undertakings to send proposals for modification of the approved schemes (approved prior
to 1990) under S. 102 of the Motor Vehicles Act, 1988.
/ by order of the Governor/
K. Nagarajan,
Commissioner and Secretary
to Government.
It is at this stage, some of the operators have filed the above writ petitions.
Mr. K. K. Venugopal, learned senior counsel appearing on behalf of the petitioners contended that the moment a Bill gets the assent of the
President, there is a public and constitutional duty cast on the State Government to notify it and such an act is only a ministerial act and the State
has no discretion left to it in that matter, once the assent is given. The Bill specifically provides that the Act shall be deemed to have come into force
on 4-6-1976 and that in view of the fact that the date of the commencement of the Act is specified as 4-6-1976, the requirement of notifying the
assent is only a ministerial act. Rule 55(3) of the Tamil Nadu Government Business Rules, 1978 framed in exercise of the powers conferred by
Cls. (2) and (3) of the Art. 166 of the Constitution of India, provides that after obtaining the assent of the Governor or the President as the case
may be, the Law Department shall cause the Bill to be published in the Gazette as an Act of the Legislature. In view of the aforeaid clause, the Law
Department has no option except to publish the Bill in the Gazette and such an act is only a ministerial act and that the department cannot keep the
Act without publishing the same after obtaining the assent of the President.
In support of his contention, Mr. K. K, Venugopal, learned senior counsel appearing on behalf of the petitioners, cited the decision Harla Vs.
The State of Rajasthan, , wherein it was held that naturaljustice requires that before a law can become operative, it must be promulgated or
published and that promulgation or publication of some reasonable sort is essential. 11. Learned senior counsel for the petitioners then cited the
decision the Tuticorin Trading and Credit Corporation (P) Ltd., by its Managing Director Sri T. Subramaniam v. State of Madras represented by
the Secretary, Department of Industries, Labour and Cooperation, Fort St. George, Madras, reported in (1966) 1 MLJ 313, wherein it was held
as follows :--
It seems to me accordingly that the issue of the notification under S. 1(3) of the Act bringing the Act into force or the promulgation of the Rule
under the authority conferred by the Act did not amount to taking executive action within the meaning of Art. 358. It follows that the law was made
when the Act was placed on the Statute Book by the Legislature.
Learned senior counsel for the petitioners then contended that by virtue of S. 217 of 1988 Act, it cannot be said that the Bill No. 42/87 which
received the assent of the President on 11-3-1989 is also repealed. If the assent is published, the law would come into operation from the date of
such publication, but retrospectively with effect from-4-6-1976 and it is only by legal fiction, the Act (Bill 42/87) can be said to be legally in force
on the date of the commencement of 1988 Act, but is not actually in force and hence the provisions contained in S. 217 of the 1988 Act cannot
repeal the said Act (Bill 42 of 1987).
In support of the abovesaid contention, Mr. K. K. Venugopal, learned counsel cited the decision State of Orissa Vs. Chandrasekhar Singh
Bhoi, etc., , wherein it was held that a law cannot be said to be in force unless it is brought into operation by legislative enactment or by the
exercise of authority by a delegate empowered to bring it into operation and that the theory of a statute being ""in operation in a constitutional sense
though it is not in fact in operation, has no validity. Learned senior counsel referred to paragraphs 5, 8 and 9 in the said decision, which are as
follows :--
Before the High Court it was urged on behalf of the landholders that when the principal Act was enacted it became law in force, and the ceiling
limit prescribed thereby became effective, even though Chapter IV was not extended by a notification under S. 1(3) of the Act, and since the
subsequent legislation seeks to restrict the ceiling limit and to vest the surplus land in the Government under S. 45 as amended, there is compulsory
acquisition of land which may be valid only if the law provides for payment to the landholder for extinction of his interest, the market value of that
part of the surplus land which is within the ceiling limit under the principal Act. This argument found favour with the High Court. In their view the
expression ""law in force"" must be ""construed only in the constitutional sense and not in the sense of its actual operativeness"", and on that account it
must be held that ""there was a ceiling limit already provided by the principal Act as it was ""law in force"" within the meaning of that expression as
used in the second proviso to Art. 31A"". They proceeded then to hold that S. 47 of the Act as amended provided for payment of compensation at
a rate which is less than the market value of the land falling within the ceiling limit as originally fixed under Act 16 of 1960, and the guarantee of the
second proviso to Art. 31A of the Constitution is on that account infringed. We are unable to accept this process of reasoning. The right to
compensation which is not less than the market value under any law providing for the acquisition by the State of any land in an estate in the
personal cultivation of a person is guaranteed by the second proviso only where the land is within the ceiling limit applicable to him under any law
for the time being in force. A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of
authority by a delegate empowered to bring it into operation. The theory of a statute being ""in operation in a constitutional sense"" though it is not in
fact in operation has, in our judgment, no validity.
In A. Thangal Kunju Musaliar Vs. M. Venkitachalam Potti and Another, , the contention that Travancore Act, 14 of 1124 (M.E.) was not law in
force until a notification was issued bringing into operation the provisions of the Act, authorising the appointment of a Commission, and referring the
cases of tax-payers 10 the commission, was rejected. The Court held that S. 1(3) was in operation on July 1, 1949 and the power to bring into
force the provisions of the Travancore Act was exercisable by the successor State. It was not held that the other provisions of the Act were in
force even before an appropriate notification was issued. In the case in hand S. 1(3) of the principal Act was in force, but Chapter IV of the Act
was not brought into force. The argument that provisions of the Act which by a notification could have been but were not brought into force, must
still be deemed to be law in force, derives no support from the case relied upon.
Section 1(3) of Act 16 of 1960 is undoubtedly a law in force, but until the power is exercised by the State Government to issue an appropriate
notification, the provisions of Chapter IV could not be deemed to be law in force, and since no notification was issued before Ch. IV of the
principal Act was repealed, there was no ceiling limit applicable to the landholders under any law for the time being in force which attracted the
application of the second proviso to Art. 31A"".
That was a case where power is vested with the State Government to issue Notification under S. 1(3) of Act 16 of 1960 to bring into operation
the Act or any of the provisions of the Act. However, the State Government had not issued the notification exercising its discretion under S. 1(3) of
the Act to bring about the provisions contained in Chapter IV into operation. It is in that context, the Supreme Court has held that particular
chapter was not in force unless and until it is brought into operation by a Notification issued by the Government.
In so far as the contention relating to the legal fiction is concerned, learned senior counsel for the petitioners referred the passage contained in
page 262 under the heading ""legal fiction"" in ""Principles of Statutory Interpretation"" by Guru Prasanna Singh (Third Edition) and the said passage is
as follows :--
In interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the
Court is to assume all those facts and consequences which are incidental or inevitable corrollaries to the giving effect to the fiction. But in so
construing the fiction it is not to be extended beyond the purpose for which it is created or beyond the language of the section by which it is
created. It cannot also be extended by importing another fiction.
Learned senior counsel for the petitioners also contended that Bill No. 42 of 1987 passed by the State Legislature of Tamil Nadu was
reserved for consideration of the President of India and that the President has given his assent on 11-3-1989 and that will prevail in the State of
Tamil Nadu under Art. 254(2) of the Constitution of India.
In support of the above contention, learned senior counsel for the petitioners cited the decision M. Karunanidhi Vs. Union of India and
Another, , wherein it was held (at p. 903) :
Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a
previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Art. 254(2) of the Constitution.
The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the
provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a
law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Art. 254.
Learned senior counsel for the petitioners further contended that though the said provisions contained in the Bill 42 of 1987 refers to the 1939
Act, it is by virtue of S. 18 of the Tamil Nadu General Clauses Act, any references in any other Act to the provisions of the 1939 Act (so
repealed) shall be construed as reference to the provisions of the Act so enacted i.e., 1988 Act. It is in view of the provisions contained in S. 18 of
the Tamil Nadu General Clauses Act, the provisions contained in Bill 42 of 1987 on becoming an Act, can be read with the provisions contained in
the 1988 Act.
It is also contended by the learned senior counsel for the petitioners that S. 103 of the 1988 Act which is corresponding to the provisions of S.
68-F of the 1939 Act and S. 103(1) which is corresponding to S.68-F(1) of the Act and S. 103(2) of the 1988 Act which is corresponding to S.
68-F(2) are stated to be two sides of the same coin, but by S. 1(1) that where in pursuance of an approved scheme, any State Transport
undertaking applies in such manner as may be prescribed by the State Government in this behalf for a stage carriage permit or a public carrier''s
permit or a contract carriage permit in respect of a notified area or notified route, the State Transport Authority in any case where the said area or
route lies in more than one regions and the Regional Transport Authority in any other case shall issue such permit to the State Transport
Undertaking, notwithstanding anything to the contrary contained in Chapter IV. Under sub-sec. (2) of S. 103 of the 1988 Act, it is provided that
for the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the State Transport Authority, or, as the case
may be, the Regional Transport Authority concerned, as the case may be by order :
(a) refuse to entertain any application for the grant of renewal of any other permit or reject any such application as may be pending :
(b) cancel any existing permit
(c) modify the terms of any existing permit so as to
(i) render the permit ineffective beyond a specified date
(ii) reduce the number of vehicles authorised to be used under the permit;
(iii) curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route.
It is also contended that the scheme provides a maximum and minimum number of permits. The State Transport Undertaking cannot apply for and
obtain permits beyond the maximum prescribed under the scheme, unless the scheme is amended to that effect; the State Transport Undertaking
cannot have any preference and in fact cannot apply beyond the maximum prescribed under the scheme.
18A. Learned senior counsel for the petitioners also contended that in order to overcome the difficulties which the private operators faced as a
result of the Supreme Court judgment, the Government by Government order issued the necessary instructions as well as introduced the Bill No.
42 of 1987 by providing suitable provisions enabling the private operators to apply for grant of permit and renewal and that the present action on
the part of the Government which would result in stoppage of 4000 buses, would be arbitrary, unreasonable and vioiative of Arts. 14 and 19(1)(g)
of the Constitution of India.
Mr. K. K. Venugopal, learned counsel for the petitioners then submitted that the grant of permit, renewal and variation is a quasi-judicial
function and while so the impugned Government order giving direction to the Transport Authority to eliminate the private operators amounts to
interference with the discharge of the quasi-judicial function and such a direction is contrary to the law, as settled by the Supreme Court in B.
Rajagopala Naidu Vs. State Transport Appellate Tribunal and Others, .
Learned senior counsel for the petitioners further contended that the impugned Government order, by which instructions are given to the
statutory authority directing the Transport Department to give effect to the orders of the Government either by following the procedure
contemplated under S. 105(4) of the 1988 Act or by applying for permit at the time of expiry of permit of the private operators for the purpose of
eliminating them, is vitiated by the reason that such a direction cannot be given to be quasi-judicial authority.
It is also contended that the directions issued to the Transport Authorities in the impugned Government order interferes with the discharge of
the quasi-judicial function of the statutory authority and is directly opposed to law as settled by the Supreme Court in B. Rajagopala Naidu Vs.
State Transport Appellate Tribunal and Others, , that the power to issue directions with the State Government can be done under S. 67, that S. 67
does not provide for issuance of any such direction as contained in the impugned Government order, that such a direction could not be given and
that is vitiated for the reason that such a direction is contained in the impugned Government order.
Repelling the above contentions of the learned senior counsel for the petitioners, learned Advocate-General contended that R. 55(3) of the
Tamil Nadu Government Business Rules is only directory and not mandatory and consequently the petitioners cannot seek to enforce R. 55(3) of
the Tamil Nadu Government Business Rules. In support of the above contention, he cited the decision Chandrakant Sakharam Karkhanis and
Others Vs. State of Maharashtra and Others, and referred the passage contained in page 211, which is as follows :--
The rules of business have been made for the convenience of public business. The opening words of Cl. (3) of Art. 166 make it clear that the rules
of business are framed by the Governor for more convenient transaction of business of the Government of the State. These rules have not been
framed, and indeed were not intended, to create or confer a right upon a public servant to come and apply for a writ under Art. 226 of the
Constitution for violation of these rules"".
The aforesaid decisions make the position quite clear that the provisions of Art. 166 of the Constitution themselves are directory in nature and
further that the rules framed by the Governor under Cl. (3) of Art. 166 must be regarded as rules having been framed for more convenient
transaction of business of the Government and are directory in character and not mandatory and any non-compliance thereof would be a mere
procedural defect but would not confer any right upon any citizen to approach the Court under Art. 226 of the Constitution.
Learned Advocate-General also cited the decision A.K. Roy and Others Vs. Union of India (UOI) and Others, , wherein it was held as
follows :--
The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the
44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in
the discretion to do when it considers it opportune to do it The executive is responsible to the Parliament and if the Parliament considers that the
executive has betrayed its trust by not bringing any provision of the amendment into force, it can censure the executive. If it were permissible to the
Court to compel the Government by a mandamus to bring a constitutional amendment into force on the ground that the Government has failed to
do what it ought to have done, it would be equally permissible to the Court to prevent the Government from acting, on some such ground as that
the time was not yet ripe for issuing the notification for bringing, the amendment into force. It is difficult to appreciate what practical difficulty can
possibly prevent the Government from bringing into force the provisions of S. 3 of the 44th Amendment, after the passage of two and half years.
But the remedy is not the writ of mandamus. The Parliament having seen the necessity of introducing into the Constitution a provision like S. 3 of
the 44th Amendment, it is not open to the Central Government to sit in judgment over the wisdom of the policy of that section. If only the
Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the
various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the
function assigned to it by the Parliament.
Learned Advocate-General also citeci the decision Sumer Chand Sharma and Another Vs. State of U.P. and Another, wherein it was held as
follows :--
Where the private operators plied their stage carriages over routes which had a common overlapping sector with nationalised routes which were
nationalised to the complete to exclusion of private operators, after 1-4-1971, the date of repeal of U.P. Road Transport Services (Development)
Act. 1955, in accordance with practice that grew up in U. P. the operators would not be entitled on basis of such plying to obtain authorisations
from the competent authorities under S. 5 of the U. P. Act, 1976. On the repeal of Act 9 of 1955 it was no longer permissible for the transport
authorities to permit the private operators to ply their stage carriages over the common sectors, in the case of areas and routes which were
nationalised to the complete exclusion of private operator. If by reason of the unauthorised and unlawful practice which had grown up in Uttar
Pradesh, private operators had been allowed to ply vehicles over common sectors, despite statutory prohibition, that would surely not entitle the
operators to obtain authorisations under S. 5 of the Act 1976"".
Learned Advocate-General then cited the decision Adarsh Travels Bus Service and Another Vs. State of U.P. and Others, , wherein it was
held as follows (Para 6) :
A careful and diligent perusal of S.68C, S.68D(3) and S.68FF in the light of the definition of the expression ''route'' in S. 2(28A) appears to make
it manifestly clear that once a scheme is published under S. 68D in relation to any area or route or portion thereof, whether to the exclusion,
complete or partial of other persons or otherwise, no person other than the State Transport Undertaking may operate on the notified area or
notified route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his
vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. He may not operate
on any part or portion of the notified route or area on the mere ground that the permit as originally granted to him covered the notified route or
area. We are not impressed by the various submissions made on behalf of the appellants by their several counsel. The foremost argument was that
based on great inconvenience which may be caused to the travelling public if a passenger is not allowed to travel, say, straight from A to B on a
stage carriage, to ply which on the route A to B a person X has a permit, merely because a part of the route from C to D somewhere between the
points A and B is part of a notified route. The answer to the question is that this is a factor which will necessarily be taken into consideration by the
State Transport Undertaking before publishing the scheme under S. 68C by the Government under S. 68D when considering the objections to the
scheme and thereafter either by the State Transport Undertaking or by the Government when the inconveniences experienced by the travelling
public are brought to their notice. The question is one of weighing in the balance the advantages conferred on the public by the nationalisation of the
route C to D against the inconveniences suffered by the public wanting to travel straight from A to B. On the other hand it is quite well known that
under the guise of the so-called ''corridor restrictions'' permits over longer routes which cover shorter notified routes or ''overlapping'' parts of
notified routes are more often than not misutilised since it is next high impossible to keep a proper check at every point of the route. It is also well
known that often times permits for plying stage carriages from a point a short distance beyond one terminus to a point a short distance beyond
another terminus of a notified route have been applied for and granted subject to the so-called ""corridor restrictions"" which are but mere ruses
traps to obtain permits and to frustrate the scheme. If indeed there is any need for protecting the travelling public from inconvenience as suggested
by the learned counsel we have no doubt that the State Transport Undertaking and the Government will make a sufficient provision in the scheme
itself to avoid inconvenience being caused to the travelling public.
From the aforesaid decisions, it is very clear that once the scheme is published under S. 68-D of the 1939 Act in relation to any area or route
or portion thereof, whether to the exclusion complete or partial, of other persons or otherwise no person other than the State Transport
Undertaking may operate on the notified area or notified route except as provided under the scheme itself. It is manifest that no private operator
can operate his vehicle to any part of the notified area or notified route unless authorised so to do by the terms of the scheme itself and it is the
responsibility of the State Government and the State Transport Undertaking to make sufficient provision in the scheme to avoid inconvenience
being caused to the travelling public.
With reference to the distinction between the Act coming into force and the commencement of the Act, learned Advocate-General cited the
decision M. Manickchand and Others Vs. Elias Saleh Mohamed Sait and Another, and referred the passage contained in paragraph 18, which is
as follows :--
""Commencement"" is defined in S. 3(13) of the General Clauses Act as follows :--
Commencement, ""used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation comes into force"".
Obviously, an Act can only commence in a particular area on the date on which that Act comes into force in that area. The mere fact that it was in
operation in other areas will not result in the Act having commenced in the area where it had not yet been applied. In this connection, notice may
be taken of the language of sub-sec. (3) of S. 5 of the General Clauses Act where it is laid down that ""unless the contrary is expressed, a Central
Act or Regulation shall be construed as coming into operation, immediately on the expiration of the day preceding its commencement"". This sub-
section clearly indicates that there is a distinction between an Act coming into operation, and the commencement of the Act. The date of coming
into operation is not necessarily the date of commencement.
Learned Advocate-General next contended that the President has given his assent on 14-10-1988 to the Central Act, 1988 and thereafter
Motor Vehicles Act of 1988 was published in the Gazette. The Motor Vehicles Act, 1988 came into force from 1-7-1989. Section 217 of the
Motor Vehicles Act, 1988 repeals not only the Motor Vehicles Act, 1939 but also any law corresponding to that Act in force in any Stale
immediately before the commencement of the Act in that State. In view of the fact that not only the 1939 Act but also the law corresponding to
that Act in force in any State immediately before the commencement of the 1988 Act (is) repealed. The Bill 42/87 passed by the Tamil Nadu
Legislature and assented by the President on 11-3-1989 is notified would be deemed to have come into force with effect from 4-6-1976 is a law
corresponding to 1939 Act and consequently by virtue of S. 217 of the Act, 1988, the Act (Bill No. 42/87) is repealed. In support the abovesaid
contention, learned Advocate-General cited the decision Sumer Chand Sharma and Another Vs. State of U.P. and Another, and Adarsh Travels
Bus Service and Another Vs. State of U.P. and Others, .
Learned Advocate-General also contended that Bill 42/87 after the assent the obtained from the President can he construed as law in force on
the date of the commencement of 1988 Act, but was not brought into operation by reason of the specific provisions contained in S. 1(3) of the Bill,
i.e. the Act shall be deemed to have come into force on 4-6-1976; with the result that if the assent is notified, the Act shall be brough into force,
but retrospectively with effect from 4-6-1976. By reason of the said provision, it shall be construed that the Act was in force, but was not brought
into operation and consequently the Act would fall within the provision contained in S. 217 of the Act, and cited the decision State of Andhra
Pradesh Vs. Vallabhapuram Ravi, .
Learned Advocate-General further contended that Art. 254(2) of the Constitution of India has no application to the instant case for the reason
that the Bill, after it was passed by the State Legislature, was reserved for consideration of the President with the note circulated therein specifying
the intendment of the provisions contained in the Act. It was not at all brought into the notice of the President that the President has given assent to
the Motor Vehicles Act, 1988 and that the 1988 Act came into force from 1-7-1988. It was not brought to the notice of the President that the Rill
42/87 was inconsistent with the provisions of the 1988 Act and consequently reserved for consideration of the President of India while so the
President has no occasion to consider and appraise all the aforesaid factors before the assent is given to Bill 42 of 1987. If that is so, Art. 254(2)
of the Constitution will have no application. Since it was not brought to the notice of the President all the aforesaid factors before the President had
given his assent to the Bill, it cannot be said that Art, 254(2) of the Constitution of India will have application to the Act (the Bill 42/87) and it
cannot be said that the Act (Bill 42/87) shall prevail in the State of Tamil Nadu in spite of Central Act, 1988 came into force. In support of the
aforesaid contention, learned Advocate-General cited the decision Gram Panchayat of Village Jamalpur Vs. Malwinder Singh and Others, and
referred the passage contained in paragraph 12, which is as follows:- -
The Punjab Act of 1953 was reserved for consideration of the President and received his assent on December 26, 1953. Prima facie, by reason
of the assent of the President, the Punjab Act would prevail in the State of Punjab over the Act of the Parliament and the Panchayats would be at
liberty to deal with the Shamlet-deh lands according to the relevant Rules or Bye-laws governing the matter, including the evacuee interest therein.
But, there is a complication of some nicety arising out of the fact that the Punjab Act was reserved for the assent of the President, though for the
specific and limited purpose of Arts. 31 and 31A of the Constitution. Art. 31 which was deleted by the Constitution (Forty-fourth) Amendment)
Act, 1978 provided for compulsory acquisition of property. Cl. (3) of that article provided that, no law referred to in Cl. (2) made by the
Legislature of a Slate shall have effect unless such law, having been reserved for the consideration of the President has received his assent. Art.
31A confers protection upon laws falling within ''Cls. (a) to (e) of that article, provided that such laws, if made by a State Legislature, have
received the assent of the President. Cl. (a) of Art. 31A comprehends laws of agrarian reform. Since the Punjab Act of 1953 extinguished all
private interests in Shamlet-deh lands and vested those lands in the village Panchayats and since, the Act was a measure of agrarian reform, it was
reserved for the consideration of the President. The judgment of the High Court shows that the hearing of the writ petitions was adjourned to
enable the State Government to place material before the Court showing the purpose for which the Punjab Act of 1953 was forwarded to the
President for his assent. The record shows, and it was not disputed either before us or in the High Court, that the Act was not reserved for the
assent of the President on the ground that it was repugnant to an earlier Act passed by the Parliament, namely, the Central Act of 1950. In these
circumstances, we agree with the High Court that the Punjab Act of 1953 cannot be said to have been reserved for the assent of the President
within the meaning of Cl. (2) of Art. 254 of the Constitution in so far as its repugnancy with the Central Act of 1950 is concerned. The assent of
the President under Art. 254(2) of the Constitution is not a matter of idle formality. The President has, at least, to be apprised of the reason why
his assent is sought, if there is any special reason for doing so. If the assent is sought and given in general terms so as to be effective for all
purposes, different considerations may legitimately arise. But if, as in the instant case, the assent of the President is sought to the law for a specific
purpose, the efficacy of the assent would be limited to that purpose and cannot be extended beyond it. Not only was the President not apprised in
the instant case that his assent was sought because of the repugnancy between the State Act and the pre-existing Central Act in the vesting of
evacuee properties but, his assent was sought for a different, speicifc purpose altogether. Therefore, that assent, cannot avail the State Government
for the purpose of according precedence lo the law made by the State Legislature, namely, the Punjab Act of ]953, over the law made by the
Parliament, even within the jurisdiction of the State.
Learned Advocate-General also contended that S.18 of the Tamil Nadu General Clauses Act has no application and it is by virtue of S. 12 of
the Tamil Nadu General Clauses Act that S.18 of the Tamil Nadu General Clauses Act shall be applicable only with reference to the State Act.
Learned Advocate-General further contended that the State has ample powers to issue administrative instructions and that the instructions
contained in the impugned Government Order 1794/90 are only with reference to the discharge of administrative function and it cannot be said to
be in relation to the discharge of quasi-judicial function of the statutory authority.
With reference to the contention that the Government instruction contained in the impugned Government order is in relation to the discharge of
the administrative functions of the statutory authority and does not interfere with the quasi-judicial function of the authority as contended by the
learned counsel for the petitioners, learned Advocate-General submitted that the decision B. Rajagopala Naidu Vs. State Transport Appellate
Tribunal and Others, is not applicable to the instant case. In support of the aforesaid contention, learned Advocate-General cited the decision
Kalyan Singh v. State of Uttar Pradesh, reported in AIR 1962 SC 1183 and referred the passages contained in paragraphs 16, 17 and 18, which
are as follows :
The Regional Transport Authority was by the terms of the scheme left no discretion in the matter. It was by the scheme that the right of the
appellant was restricted and if the scheme became final and binding, the Regional Transport Authority had no authority to permit the appellant to
ply his vehicles. The order passed by the Regional Transport Authority was purely consequential on the scheme and if the scheme is not open to
challenge, orders consequential thereon will not also be open to challenge. We are supported in this view by the observations of this Court in
Abdul Gafoor Vs. State of Mysore,
It appears to us that when deciding what action to take under S. 68F(2) the authority is tied down by the terms and conditions of the approved
scheme and his duty is merely to do what is necessary to give effect to the provisions of the scheme. The refusal to entertain applications for
renewal of permits or cancellation of permits really flow from the scheme. The duty is therefore merely mechanical; and it will be incorrect to say
that there is in these matters any lis between the existing operators and the State Transport Authority. There is no justification therefore for saying
that when taking action under S. 68F(2) the Regional Transport Authority is exercising a quasi-judicial function. Apart from this it has to be pointed
out that action under S. 68F(2) is really indepndent of the issue of the permits under S.68F(1). Once the scheme has been approved, action under
S. 68F(1) flows from it and at the same time action under S. 68F(2) flows from the same scheme"".
We are bound by this decision.
We are not called upon to consider whether the State-owned buses are being validly plied without obtaining permits under S.68F(1) of the Act. If
the right of the appellant to ply his buses is lawfully extinguished, he is not entitled to maintain an appeal challenging the right of the State Transport
Undertaking to ply their buses with or without permits. Nor is any fundamental right of the appellant infringed by the State Transport Undertaking
plying its buses without permits, and a petition under Art. 32 of the Constitution cannot be maintained unless a fundamental right of the applicant is
infringed"".
Nor is there any substance in the last contention. The orders passed under S. 68F(2)(a) and (b) flow from the publication of the scheme duly
approved and the issue of an order, which is not quasi-judicial but administrative, by the Secretary on behalf of the Regional Transport Authority is
not open to challenge. It is not the case of the petitioner in W.P. No. 205/61 in which alone this contention is raised that the order is unauthorised :
what is contended is that the order being quasi-judicial power to make it cannot be delegated. But for reasons already set out the order is not
quasi-judicial; it is purely administrative.
Having regard to the ratio of the decisions cited by both sides, it is not in dispute that the Bill 42 of 1987 passed by the Legislative Assembly of
Tamil Nadu on 13-11-1987 and reserved for the assent of the President of India, is to make certain special provisions in respect of permits for
stage carriages under the Motor Vehicles Act, 1939. As per the definition clause, Motor Vehicles Act means ""the Motor Vehicles Act of 1939
(Central Act IV of 1939"". As per S. 1(3) of the Bill 42 of 1987, the Act shall be deemed to have come into force on 4-6-1976. As per S. 1(4), it
applies in relation to the draft schemes, approved schemes and notified routes. It contains the provisions relating to grant of permits in certain
circumstances, viz., grant a permit or renew a permit to a small operator or for a stage carriage to any new entrant, notwithstanding anything
contained in the draft scheme or approved scheme either with reference to the entire route or any portion of the route of the approved scheme or
draft scheme and to validate the existing permit and the said provisions shall have an overriding effect over Chapter IV and Chapter IV-A of the
Act (Central Act IV of 1939).
Before the assent was given to the Tamil Nadu Bill 42 of 1987, Motor Vehicles Act, 1939 (Central Act) was repealed and replaced by Motor
Vehicles Act of 1988 with effect from 1-7-1989. S. 217 of the 1988 Act repealed not only the 1939 Act but also any law corresponding to that
Act in force in any State immediately before the commencement of the Act in that Stale.
With reference to the contention of the petitioners'' counsel that the moment the Bill gets the assent of the President, there is a public and
constitutional duty cast on the State Government to notify it and that under R. 55(3) of the Tamil Nadu Government Business Rules, 1978, the
Law Department shall cause the bill to be published in the Gazette as an Act of the Legislature, learned counsel for the petitioner cited the decision
Harla Vs. The State of Rajasthan, wherein it was held that before a law can become operative, it must be promulgated or published and that
promulgation or publication of some reasonable sort is essential. It is in this context, learned Advocate-General has pointed out that under S.5(1)
of the Tamil Nadu General Clauses Act, 1891, it is provided that any Act to which this chapter applies is not expressed to come into operation on
any particular day, then it shall come into operation on any day on which the assent thereto of the Governor, Governor General or the President, as
the case may require, is published in the Official Gazette and submitted that it is for the State Government to publish the assent of the President and
it is only on such publication the Act shall come into operation. It is after the present popular Government came into power the matter was placed
before the Cabinet and the Cabinet considered that the Tamil Nadu Motor Vehicles Special Provision Bill was assented by the President of India
and untimely decided not to publish it since the essence of the bill contradicts the nationalisation policy already enunciated between (967 and 1976
to which the present Government continues to stand committed. Thereafter, steps are being undertaken for promulgation of an ordinance in this
behalf. Learned Advocate-General further contended that R. 55(3) of the Tamil Nadu Business Rules is only directory and not mandatory and in
support of the above contention, learned Advocate-General cited the decision Chandrakant Sakharam Karkhanis and Others Vs. State of
Maharashtra and Others, . Considering the aforesaid contentions, it is clear that unless the assent of the President in the official Gazette is
published, as contemplated under S.5(1) of the Tamil Nadu General Clauses Act, 1891, the Act shall not come into operation. In view of the fact
that the assent of the President for the Bill 42 of 1987, is not published, the Act shall not come into operation. In Chandrakant''s case (supra) the
Full Bench of the Bombay High Court observed that the rules of business were framed by the Governor for more convenient transaction of
business of the Government of the State and were not intended to create or confer a right upon a public servant to come and apply for a writ under
Art. 226 of the Constitution for violation of those rules and the rules were framed for more convenient transaction of business of the Government
and the directory in character and are not mandatory and any non-compliance thereof would be a mere procedural defect but would not confer
any right upon any citizen to approach the Court under Art. 226 of the Constitution. The above ratio of the Full Bench of the Bombay High Court
is very clear to the effect that R. 55(3) of the Tamil Nadu Government Business Rules is only directory and hence that would not confer a right on
the petitioner to compel the Government to publish the Bill in the Gazette.
With reference to the contention that even though the Bill 42 of 1987 received the assent of the President on 11-3-1989 and on publication of
the assent of the President the Act would be brought into operation, but retrospectively with effect from 4-6-1976 and in such a case the Act
could be deemed to be in force with effect from 4-6-1976 but in fact the Act was not actually in force on the date when this 1988 Act came into
force and consequently it cannot be construed that the Bill 42 of 1987 if it becomes an Act, on publication is also repealed under S. 217 of the
1988 Act, learned Advocate-General contended that the law in force includes law even if it is not brought into operation by the reason of the fact
that if the law is brought into operation that would become a law with effect from 4-6-1976 in the instant case and consequently the Act shall be
deemed to be in force on the date when the 1988 Act came into force. It may be by fiction that the Act shall be deemed to have come into
operation with effect from 4-6-1976 and in the eye of law it could be said that the Act (L.A. Bill 42/87) is a law corresponding to the 1939 Act in
force on the date of the commencement of the 1988 Act and consequently it is repealed. Learned senior counsel for the petitioners in support of
the above contention, cited the decision State of Orissa Vs. Chandrasekhar Singh Bhoi, etc., and page 262 of the ""Principles of Statutory
Interpretation"" by Guru Prasanna Singh (Third Edition). Learned Advocate-General cited the Sumer Chand Sharma and Another Vs. State of U.P.
and Another, and Kalyan Singh''s case AIR 1962 SC 1183 (supra) and page 307 of the Legislation and Interpretation by Jagdish Swamp. It is in
this context, it is necessary to point out that the legal fiction is one which is not in actual reality but which the law requires the Court to accept it as a
reality and, therefore, in case of legal fiction the Court believes something to exist which, in reality, does not exist. In other words, it is nothing but a
presumption of the existence of a state of affairs which in actual is non-existent. A deeming provision creates a legal fiction. The effect of such a
legal fiction is that a position which otherwise would not obtain is deemed to obtain under certain circumstances. It is the exclusive privilege of the
legislature to apply the deeming fiction in a given case.
In view of the aforesaid circumstances, it has to be construed that if the assent of the. President is published, it becomes an Act, but shall be
deemed to have come into force with effect from 4-6-1976 and consequently it shall be construed as an Act that was in force on the date when the
1988 Act came into force. While so, S. 217 of the 1988 Act shall apply and it applies to the Act (Bill 42/87) on coming into operation and hence
it is repealed.
With reference to the contention that the Tamil Nadu Legislature passed the Bill 42 of 1987 and that the Bill was reserved for consideration of
the President and later has received the assent of the President and consequently in view of Art. 254(2) of the Constitution of India, the law will
prevail in that State, learned senior counsel for the petitioners cited the decision in M. Karunanidhi Vs. Union of India and Another, . Learned
Advocate-General contended that it was not brought to the not ice of the President that the 1988 Act assented by the President came into force
with effect from 1-7-1988 and that the provisions contained in the Bill 42 of 1987 are inconsistent with the provisions contained in the 1988 Act
and consequently the Bill was reserved for consideration of the President of India. Since these factors were not brought to the notice of the
President, the President had no occasion to consider the aforesaid factors before the assent was given by him. Unless it was brought to the notice
of the President, while referring the Bill for consideration of the President, that the provisions of the Bill 42 of 1987 are inconsistent or repugnant
with the provisions of the Central Act, i.e., 1988 Act, it cannot be said that Art. 254(2) of the Constitution will have any application at all. In
support of he above contention, learned Advocate-General cited the decision Gram Panchayat of village Jamalpur Gram Panchayat of Village
Jamalpur Vs. Malwinder Singh and Others, . Considering the ratio laid own by the Supreme Court in the decision cited above, the contention put
forward by the learned Advocate-General has to be accepted. On a perusal of the file produced by the learned Advocate-General, it is clear that
the factum that the provisions contained in the Bill 42 of 1987 are repugnant to the provisions contained in the 1988 Act etc., was not brought to
the notice of the President and that the President had no occasion to consider the aforesaid factor and in the absence of such consideration, it
cannot be said that the provisions contained in Art. 254(2) of the Constitution can be made applicable and, therefore, it is not correct on the part
of the learned counsel for the petitioner o contend that the provisions contained in the Bill 42 of 1987 when becoming an Act on publication of the
assent of the President, shall prevail over the State of Tamil Nadu. Such a contention put forward by the learned senior counsel for the petitioners
cannot be accepted.
So far as the contention that by virtue of S. 18 of the Tamil Nadu General Clauses Act any reference to any other Act (Tamil Nadu Bill 42/87)
to the provisions of the 1939 Act (so repealed) shall be construed as reference to the provisions of the Act so enacted i.e., 1988 Act is concerned,
on a perusal of the said provisions, it is manifest that S. 18 of the Tamil Nadu General Clauses Act applies only with reference to the Tamil Nadu
State Acts and that is manifest from the provisions contained in S. 12 of the Act and consequently the said contention is not sustainable. S. 103(1)
and (2) of the 1988 Act correspond with S. 68-F and S. 68-F(1) of the 1939 Act. However, the provisions contained in the Bill 42 of 1987 are
inconsistent with the provisions contained in the 1988 Act and that by virtue of S. 12 of the Tamil Nadu General Clauses Act, the provisions
contained in S. 18 of the said Act are not applicable. The contention that the present action on the part of the Government would result in stoppage
of 4000 buses, would be arbitrary, unreasonable and violative of Arts. 14 and 19(1)(g) of the Constitution has no substance. The State Transport
Undertaking and the Government will make sufficient provisions in the scheme itself to avoid any inconvenience to the travelling public and to
satisfy the need of the travelling public. If there is stoppage of any bus, it is as a result of the implementation of the provisions of the Act contained
in Chapter IV-A and in accordance with the scheme framed thereunder.
With reference to the contention that the impugned Government order is vitiated by reason of the fact that the directions contained therein are
against the discharge of the quasi-judicial functions by the statutory authority had consequently is liable to be set aside ii is clear that the first
paragraph of the impugned Government order relates to the cancellation of the Confidential/Secrete Instructions issued in G.O.Ms. No. 2222
Home dated 18-9-1987 and in letter Ms. No. 826, Home dated 11-4-1988 and that the said cancellation cannot be said to be in either way in
relation to the discharge of the quasi-judicial function. Further such a cancellation is to follow the law as settled by the Supreme Court. Since the
Government order as well as the letter which were cancelled thereby enables the private operators to apply for and obtain permit and variation
etc., contrary to the law settled by the Supreme Court in Pandiyan Roadways Corporation Ltd. Vs. M.A. Egappan, , it cannot be said that the first
paragraph of the impugned Government order amounts to interference with the discharge of quasi-judicial function of the statutory authority.
So far as paragraph 3 of the impugned Government order is concerned, it relates to the instructions to the State Transport Undertakings to
send proposals for modification of the approved schemes and that cannot also be said in relation to the quasi-judicial function of the statutory
authority. Having regard to the provisions contained in the Act relating to the scheme, the directions contained in paragraph 3 of the impugned
Government order cannot be said to be in any way amounting to interference with the discharge of the quasi-judicial function and it is only an
administrative instruction which is not liable in any way to be set aside.
In so far as the instructions contained in paragraph 2 of the impugned Government order is concerned, it is manifest from the impugned
Government order that the Government issued directions to the statutory authority to the effect that the private operators in the approved scheme
routes, who have not been permitted by the Government while approving the scheme and who are operating in the approved scheme routes have
to be eliminated. The statutory authority, vested with the power to discharge the quasi-judicial function is expected to act according to the
provisions of the statute and according to the provisions contained in the scheme. Even if the instructions contained in paragraph 2 of the impugned
Government order are administrative in nature, it is in relation to the discharge of the quasi-judicial function of the statutory authority and it cannot
be construed that it relates to discharge of administrative function and in which case the statutory authority lias to necessarily ignore paragraph 2 of
the instructions contained in the impugned Government order, while exercising the quasi-judicial function with reference to the grant or variation of
the permit in accordance with the statute and in accordance with the provisions of the scheme.
The contentions put forward by the learned counsel for the petitioners cannot be sustainable for the reason that paragraphs 1 and 3 of the said
Government order cannot be said to be interfering with the discharge of quasi-judicial function of the statutory authority. In so far as paragraph 2 of
the impugned Government order is concerned, it is already indicated hereinabove that the statutory authorities have to necessarily ignore the
directions contained in paragraph 2 of the impugned Government order while the statutory authorities are discharging the quasi-judicial function in
respect of grant of permit, renewal and variation of permit but in accordance with the provisions of the 1988 Act and the provisions contained in
the scheme, if any, in respect of the route, area etc., is concerned.
In view of the aforesaid facts and circumstances, the petitioners cannot compel the Government to publish the Bill and so long as the assent of
the President is not published in the Gazette as contemplated under S.5(1) of the Tamil Nadu General Clauses Act, the Act shall not come into
operation and consequently the writ petitions seeking for the prayer for declaration/ mandamus directing that the Bill 42 of 1987 passed by the
State Legislature of the Tamil Nadu has become a law in force on the day when it received the assent of the President in March 1989 and also for
seeking a writ of mandamus directing the Government of Tamil Nadu to publish in the Tamil Nadu Government Gazette L.A. Bill 42 of 1987
cannot be acceded to.
In the result, W.P. Nos. 13990, 13997, 14006, 14012, 14015, 14040, 14044, 14057, 14059, 14088 and 14409 of 1990 seeking for the
relief of a writ of certiorari to quash G.O.Ms. No. 1794 Home (Transport-D) Department dated 6-8-1990 and for a mandamus restraining the
respondents from implementing the said G.O.Ms. No. 1794 Home (Transport-D) Department dated 6-8-1990 or in any other manner interfering
with the plying of the vehicles of the petitioners concerned are ordered in the following terms. The authorities are directed to discharge their quasi-
judicial function by ignoring the provisions contained in paragraph 2 of the impugned Government order, but in accordance with the provisions of
the statute and the scheme, if any, in respect of the route, area etc., are concerned. The other writ petitions, W.P. Nos. 13991, 13996, 14007,
14013, 14014, 14039, 14043 and 14087 of 1990, seeking for the issue of a writ of Declaration/ Mandamus to declare that the Bill 42 of 1987
has become a law in force on the date when it received the assent of the President of India in March, 1989, and W.P. Nos. 13998, 14008,
14011, 14016, 14041, 14042, 14058, 14060, 14087, 14279 and 14280 of 1990 seeking for the issue of a writ of mandamus directing the
Government of Tamil Nadu to forthwith publish in the Tamil Nadu Government Gazette L.A. Bill 42 of 1987 which was passed by the Tamil Nadu
Legislature and which was received the assent of the President of India are dismissed. In the view that I have taken and expressed hereinabove,
W.P. Nos. 14002, 14065 and 14068 of 1990 seeking for a mandamus directing the respective respondents to consider and pass orders on their
respective applications for renewal of the permit in accordance with the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1987 (L.A. Bill No.
42 of 1987) are liable to be dismissed and accordingly they are also dismissed. However, there will be no order as to costs. The Advocate-
General was ably assisted by Mr. M. Palani, Advocate.
Order accordingly.