{"id":124082,"date":"1976-12-10T00:00:00","date_gmt":"1976-12-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-r-venkatachalam-ors-vs-dy-transport-commissioner-on-10-december-1976"},"modified":"2016-03-22T02:01:13","modified_gmt":"2016-03-21T20:31:13","slug":"d-r-venkatachalam-ors-vs-dy-transport-commissioner-on-10-december-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-r-venkatachalam-ors-vs-dy-transport-commissioner-on-10-december-1976","title":{"rendered":"D.R. Venkatachalam & Ors vs Dy. Transport Commissioner & … on 10 December, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
D.R. Venkatachalam & Ors vs Dy. Transport Commissioner & … on 10 December, 1976<\/div>\n
Equivalent citations: 1977 AIR 842, \t\t 1977 SCR (2) 392<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nD.R. VENKATACHALAM & ORS.\n\n\tVs.\n\nRESPONDENT:\nDY. TRANSPORT COMMISSIONER & OTHERS\n\nDATE OF JUDGMENT10\/12\/1976\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nRAY, A.N. (CJ)\nBEG, M. HAMEEDULLAH\n\nCITATION:\n 1977 AIR  842\t\t  1977 SCR  (2) 392\n 1977 SCC  (2) 273\n CITATOR INFO :\n R\t    1984 SC 200\t (11)\n E\t    1990 SC1851\t (29)\n\n\nACT:\n\t    Motor  Vehicles  Rules,  r.\t 155-.4,  vires\t of  whether\n\tagainst\t public\t interests whether contradicts or  impliedly\n\trepeals\t proviso  to s. 47(1)  of the  Motor  Vehicles\tAct,\n\t1939--Expressio\t unius est exclusio alterius,  applicability\n\tof.\n\n\n\nHEADNOTE:\n\t   The appellants, private stage carriage operators, applied\n\tfor   the  renewal of their expiring bus permits.   The\t re-\n\tspondent  State\t Transport   Undertaking  objected,   urging\n\tpreferential  grounds  in its own favour, claiming  to\thave\n\tsecured\t higher marks with the aid of r. 155-A of the  Motor\n\tVehicles Rules.\t The State Transport Undertakings claim\t was\n\tupheld.\t  The appellants moved the appellate  Tribunal,\t and\n\talso filed a writ petition before the High Court for  direc-\n\ttions  to  the appellate Tribunal to dispose of\t his  appeal\n\twithout relying on r. 155-A. The writ petition was dismissed\n\tby  a Single Judge, and an appeal before the Division  Bench\n\talso failed.\n\t    In appeal by Special Leave, the appellants assailed\t the\n\tvalidity of r. 155-A the grounds of its being partial to the\n\tGovernment  against  public interest and  contradicting\t the\n\tproviso to s. 47(1) of the Motor Vehicles Act, 1939.\n\tDismissing the appeals, the Court,\n\tHELD: (Per Krishna Iyer J. for himself and on behalf of\t  A.\n\tN. Ray CJ.)\n\t1.  The\t assignment  of marks under r. 155-A  is  geared  to\n\tpublic\tinterest, which h the desideratum of s. 47(1) of the\n\tAct.   This is not an arbitrary stroke\tfavouritism  because\n\tthere are many promotional  factors  bearing  on  the inter-\n\test  of the travelling public which a State  enterprise\t qua\n\tState enterprise will, but a private enterprise qua  private\n\tenterprise  will  not take care of. There is  equity  in  r.\n\t155-A, making up, as it does, for the present short.falls in\n\tthe making system vis a vis a government transport  service.\n\t[398H. 399B]\n\t   P.  Kumaraswamy v. State Transport<\/a>  ,Appellate  Tribunal,\n\tMadras & [1976] 2 SCR. 214 referred to.\n\tThe Court observed:\n\t    Legal Darwinism, adapting the rule of law to new  socie-\n\ttal  developments,  so as to survive and  serve\t the  social\n\torder, is necessary.  [398B]\n\t    Cardozo:  The nature of the Judicial Process; Yale\tUni-\n\tversity Press; pp. 151-152, relied upon.\n\t    2. There cannot be any conflict between s..47(1) proviso\n\tand  the  impugned  rule.  The proviso does  not  carry\t any\n\tnegative  injunction that transport tribunal shall not\tgive\n\tany other preferential consideration than what is stated  in\n\tit.  There is no implied interdict that in other  contingen-\n\tcies  no  preference shah be accorded.\tThe  proviso  merely\n\ttakes care  of\ta  specific  situation. Moreover. the  mark-\n\ting  formula does not deprive the  administrative  tribunals\n\ttheir discretion to choose the best  [399C-E]\n\tPer H.M. Beg, 1. (Concurring)\n\t\t Where\tthere is a single specified mode  laid\tdown\n\tfor doing something   exercise of the legal power to do\t it,\n\tthe specified mode may, negatively operate.\n\t\t   393\n\t   (Krishna Iyer, J.)\n\tas  a prohibition against what is not prescribed at all\t and\n\tis  outside  the statute. But expressio unius  est  exclusio\n\talterius could not apply ot a case where two modes of  doing\n\tthe  same thing are provided for by a statute itself.\tHere\n\tboth  chapters IV and IV-A enable plying of State  transport\n\tas well as privately owned vehicles on hire on same  routes,\n\tbut the grounds for these combined  operations under the two\n\tchapters are different. [403A, C, D]\n\t    Parbhani  Transport\t Co-operative SOciety Ltd.,  v.\t The\n\tRegional Transport Authority, Aurangabad & Ors.<\/a> [1960]\t(3')\n\tSCR 177, applied.\n\tNazir Ahmad v. King Emperor (1936) L.R. 63 I.A. 372, distin-\n\tguished.\n\t    Colquhoun  v. Brooks (1881) 21 Q.B. 52 at a, 65;  Taylor\n\tv. Taylor (1876) 1 Ch. D. 426 at 430 and Crawfords \"Statuto-\n\try  Construction\" 1940 Edn., Chapter 18, paragraphs  157  to\n\t158, pages 240-244, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
\t    CIVIL  APPELLATE  JURISDICTION:   Civil   Appeals\tNos.
\n\t11781180\/76.\n<\/p>\n
\t    Appeals  by\t Special Leave from the Judgment  and  Order
\n\tdated  22-9-1976 of the Madras High Court in  Writ  Petition
\n\tNos. 3059\/ 75, W.A. No. 339\/76 and W.P. No. 14 respectively.
\n\t    Y.S.  Chiale,  V. Subramanyam and Vineet Kumar  for\t the
\n\tAppellant in C.A. 1178\/76.\n<\/p>\n
\t    K.S. Ramamurthi,  M.N. Rangachari,\tA.R. Ramanathan,  K.
\n\tThimmalai,  Jayaraman,\tM.M.L. Srivastava and A.T.M.S.\tSam-
\n\tpath for the Appellant in CAs. 1179-1180\/76.
\n\t    V.P.  Raman, Addl. Sol. Gen. (In CAs. 1178\tto  1180\/76,
\n\tD.N.  Misra,  J.B. Dadachanji for Respondent No. 2  in\tCAs.
\n\t1178 & 1180 of 1976 and Respondent 2 in C.A. 1179\/76.
\n\t    K.\tParasaran, Adv. Genl. Tamil Nadu, ,A.V.\t Rangam,  T.
\n\tSathiadev  and (Miss) A. Subhashini for Respondents in\tCAs.
\n\t1179-80 except Transport Corporation.\n<\/p>\n
\t    K. Jayaram, V.T. Gopalan and K. Ram Kumar for the Appli-
\n\tcant and Intervener in C.A. 1178\/76.\n<\/p>\n
\t    The Judgment of A.N. Ray C.J., and Krishna Iyer, J.\t was
\n\tdelivered  by Krishna Iyer, J.M.H. Beg, J. gave\t a  separate
\n\tconcurring opinion.\n<\/p>\n
\t    KRISHNA  lYER, J. A terse presentation of the twin\tcon-
\n\ttentions  canvassed before us, in these appeals\t by  special
\n\tleave, after discomfiture at two tiers below, highlights the
\n\timportance of the economic role of the State in undertaking,
\n\twith  legal  preferences, strategic services  vital  to\t the
\n\tcommunity.   The keynote thought underlying our decision  is
\n\tthat the jural postulates of the old competitive order\thave
\n\tto yield place to the new values of developmental  jurispru-
\n\tdence. Public law, in India, responding to the public  needs
\n\tand  the State’s functional role mandated by  the  Constitu-
\n\ttion,  has evolved new approaches to old problems and  given
\n\tup dogmas which once prevailed during laissez faire days but
\n\tnow  have become obsolete because of the  ‘welfare’  economy
\n\twhich has been nurtured.  This radical change in jural
\n\t394<\/span>
\n\tperspectives has its impact on canons of statutory construc-
\n\ttion  and on verdicts about the vires of  legislation.\t All
\n\tthese  generalities acquire appropriate application  in\t the
\n\tpresent cases which arise under the Motor Vehicles Act, 1939
\n\t(Act IV of 1939) (the Act, or short) from challenges  before
\n\tthe High Court without avail, by private operators,  of\t the
\n\tpermit granted to  the State Transport Undertaking (STU)  by
\n\tthe  transport\ttribunals.  The validity of r. 155A  of\t the
\n\tMotor  Vehicles\t Rules framed under s. 68 of the Act  is  in
\n\tissue.\n<\/p>\n
\t    The\t core of counsel’s submissions is two-fold:  (1)  Is
\n\trule 155A, assigning five marks for a State undertaking, not
\n\tfamily\tviolative  of s\t 47  of\t the Act?  Does\t the   later
\n\tamendment   to\tthe  proviso to s. 47 giving  preference  to
\n\tState transport systems, other things being equal, impliedly
\n\trepeal,\t as contrary to its content, rule 155A\twhich  gives
\n\tbetter\tadvantage to the favoured category,  fulfilling\t the
\n\tspirit of the statutory amendment more tellingly ?  We\twill
\n\tproceed\t further after stating the circumstances leading  up
\n\tto  the writ petition before the High Court and\t the  appeal
\n\tbefore us.\n<\/p>\n
\t    The\t appellants, who have come by special leave to\tthis
\n\tCourt, are private stage carriage operators.  We will relate
\n\tthe  facts of one case (Civil Appeal No. 1178 of  1976)\t the
\n\tdecision  in  which will settle the fate of  the  rest,\t the
\n\tdecisive  point of law being identical.\t The permit  of\t the
\n\tappellants  but\t on  the route Salem to `rode  was  to\thave
\n\texpired on September 13, 1974 and so he applied for  renewal
\n\tunder  s. 58(2) of the Act.  The respondent-State  Transport
\n\tUndertaking  objected  to the renewal of the  permit  urging
\n\tpreferential grounds in its own favour.\t The State undertak-
\n\ting’s  claim was upheld on the score that it secured  higher
\n\tmarks  computed\t with the aid of r. 155-A.  Baulked  in\t his
\n\tapplication for renewal, the appellant challenged the  order
\n\tbefore\tthe  Appellate Tribunal.   Apprehending\t an  adverse
\n\tdecision on the strength of r. 155-A, he filed a writ  peti-
\n\ttion  before  the  High Court praying that  a  direction  be
\n\tissued\tto the Appellate Tribunal to dispose of\t his  appeal
\n\twithout relying on r. 155-A.  The plea was negatived by\t the
\n\tlearned\t Single\t Judge and a Division  Bench  dismissed\t the
\n\tappeal therefrom.  Aggrieved by the concurrent findings\t the
\n\tappellant  has assailed before us the vires of r.  155-A  as
\n\tobnoxious  to public interest excluding, in some measure,  a
\n\tfair competition and being contrary to the proviso to. s. 47
\n\t(1 ) of the Act.\n<\/p>\n
\t    A meaningful discussion of the points debated at the Bar
\n\thas to begin with a brief outline of the scheme of the Motor
\n\tVehicles Act in the branch relating to grant of permits\t for
\n\ttransport  vehicles (Chapter IV).  All\ttransport  vehicles,
\n\tbefore\tthey can be plied in any public place, require\tper-
\n\tmits  under  s. 42 and even government vehicles, if  put  to
\n\tcommercial  use, have to possess permits.  Applications\t are
\n\tmade for stage carriage permits under s. 57 and the  consid-
\n\terations germane to their grant are set out in s. 47 of\t the
\n\tAct.   It  is  common ground, and decisions  are  legion  in
\n\tsupport\t thereof, that the interest of the public  generally
\n\tis the super-consideration decisive of the award’ of permits
\n\twhen  there is a plurality of applicants.  He who can  serve
\n\tthe  public best gets the permit to ply the  stage  carriage
\n\tfrom the quasi-judicial authority charged with the responsi-
\n\tbility\tfor  choice.  We may read the relevant\tpart  of  s.
\n\t47(1) here:\n<\/p>\n
\t395<\/span><\/p>\n
\t\t      (Krishna Iyer, J.)
\n\t\t\t    “47.  Procedure  of\t Regional  Transport
\n\t\t      Authority in considering application for stage
\n\t\t      carriage permit,–\n<\/p><\/blockquote>\n
\t\t\t(1) A Regional Transport Authority shall, in
\n\t\t      considering  an application for a\t stage\tcar-
\n\t\t      riage  permit,  have regard to  the  following
\n\t\t      matters, namely :-\n<\/p><\/blockquote>\n
\t\t      (a) the interest of the public generally;\n<\/p><\/blockquote>\n
\t\t      X\t\t\t    X\t\t\t   X\n\t\t      X\n\t\t\t    Provided  that  other  conditions  being\n<\/pre>\n
\t\t      equal,  an  application for a  stage  carriage
\n\t\t      permit from any State Transport Undertaking or
\n\t\t      a Cooperative Society registered or deemed  to
\n\t\t      have  been registered under any  enactment  in
\n\t\t      force for the time being shall, as far as\t may
\n\t\t      be, be given preference over applications from
\n\t\t      individual owners.\n<\/p><\/blockquote>\n
\t\t      X\t\t\t\t\t\t   X\n\t\t      X\t\t\t\tX\"\n<\/pre>\n
\t    The interest of the public generally, is often-times too
\n\tvague and, generally, the exercise of discretion deserves to
\n\tbe canalised to guide the statutory bodies and to facilitate
\n\tbetter appreciation by the applicants of the claims that may
\n\tordinarily be considered by transport tribunals.  From\tthis
\n\tangle,\tthe  Tamil Nadu State has  framed  rules.  expressly
\n\tsubordinated  to  the paramount factor\tof  public  interest
\n\twhich  shall weigh with tribunals when adjudging among\tcom-\n<\/p><\/blockquote>\n
\tpeting claimants.  ‘This Court, in Kumaraswamy(1), summed up
\n\tthe purport of the rule thus:\n<\/p>\n
\t\t\t    “The  system of marks, under  the  Rules
\n\t\t      framed under the Act by the Tamil Nadu Govern-
\n\t\t      ment,  prescribes the  various  qualifications
\n\t\t      for  applicants  for  permits  for   passenger
\n\t\t      transport under the Motor Vehicles Act.\tRule
\n\t\t      155-A  crystallises these\t considerations\t and
\n\t\t      describes\t them as guiding principles for\t the
\n\t\t      grant  of\t stage carriage permits.   The\trule
\n\t\t      itself  emphasizes what is obvious,  that\t the
\n\t\t      paramount consideration of the interest of the
\n\t\t      public, as enshrined in Section 47(1), must be
\n\t\t      given  full  weight while awarding  per  mits.
\n\t\t      That means to say that the various factors set
\n\t\t      out  in  rule 115-,4 are\tsubject\t to  section
\n\t\t      47(1).   This is clarified by sub-rule (4)  of
\n\t\t      Rule 155-A, which runs thus:\n<\/p><\/blockquote>\n
\t\t\t    “After  marks  have been  awarded  under
\n\t\t      sub-rule\t(3), the applicants shall be  ranked
\n\t\t      according to the total marks obtained by\tthem
\n\t\t      and  the applications shall be disposed of  in
\n\t\t      accordance with the provisions of\t sub-section
\n\t\t      (1 ) of section 47.”\n<\/p><\/blockquote>\n
\t\t\t    There is no doubt that bus transport  is
\n\t\t      calculated to benefit the public and it is  in
\n\t\t      the fitness of things that the interest of the
\n\t\t      travelling public is highlighted while  evalu-
\n\t\t      ating the relevant worth of the various claim-
\n\t\t      ants.”\n<\/p><\/blockquote>\n
\tRule  155A(3)D(1)  offends against the prescription  in\t the
\n\tproviso
\n\t(1) [1976] 2 S.C,R.214.\n<\/p>\n
\t396<\/span><\/p>\n
\tto  s.\t47(1  ) and is void, according to  counsel  for\t the
\n\tappellants.  Before examining this alleged vice, we  may  as
\n\twell  read sub-rule (3) of Rule 155-A to the  extent  neces-
\n\tsary:\n<\/p>\n
\t\t\t    “(3)  After\t eliminating in\t the  manner
\n\t\t      laid  down in subrule (2), the applicants\t who
\n\t\t      are  unsuitable,\tmarks shall be\tawarded\t for
\n\t\t      assessing the different qualifications of\t the
\n\t\t      remaining applicants for the grant of  permits
\n\t\t      as follows :-\n<\/p><\/blockquote>\n
\t\t\t    (A) Residence–Two marks shall be award-
\n\t\t      ed  to  the applicant who\t has  his  principal
\n\t\t      place  of business or permanent  residence  at
\n\t\t      either terminus or on the route.\n<\/p><\/blockquote>\n
\t\t\t    Explanation.–The term ‘principal  place
\n\t\t      of  business’ shall mean only  the  registered
\n\t\t      headquarters of the company and not the  resi-
\n\t\t      dence  of the Managing Director or  any  other
\n\t\t      Director of the Company.\n<\/p><\/blockquote>\n
\t\t\t    (B) Technical qualification\t  (for Owner
\n\t\t      or  Managing Director).—Two marks  shall  be
\n\t\t      awarded  to the applicant if the Owner or\t the
\n\t\t      Managing\tDirector  of  the  organisation\t has
\n\t\t      technical qualification which may be useful to
\n\t\t      run the transport service efficiently.
\n\t\t\t    (C)\t  Workshop  facilities.–Two   marks
\n\t\t      _shall  be awarded to the applicant who is  in
\n\t\t      possession of workshop facilities as given  in
\n\t\t      Explanation under item (2)(iv).
\n\t\t\t    (D)\t (i) Five marks shall be awarded  to
\n\t\t      the  applicant falling within the\t proviso  to
\n\t\t      clause (c) of section 62-A of the Motor  Vehi-
\n\t\t      cles  Act, 1939, i.e., State Government,\tCen-
\n\t\t      tral Government or any Corporation or  Company
\n\t\t      owned  by\t the  Central  Government  or  State
\n\t\t      Government.\n<\/p><\/blockquote>\n
\t\t\t    (ii)  The  applicant who  operates\t not
\n\t\t      more than nine stage carriages excluding spare
\n\t\t      buses,  shall be awarded marks as follows :–
\n\t\t      (1 ) Applicant operating one to three buses–4
\n\t\t      marks.\n<\/p><\/blockquote>\n
\t\t      (2)  Applicant operating four to six  buses–3
\n\t\t      marks.\n<\/p><\/blockquote>\n
\t\t      (3) Applicant operating seven to nine buses–2
\n\t\t      marks.\n<\/p><\/blockquote>\n
\t\t\t    Provided that if a new entrant has\tmade
\n\t\t      an  application for a short route\t other\tthan
\n\t\t      town service route, no marks shall be  awarded
\n\t\t      to any applicant under clause (B), (C) and (D)\n<\/p><\/blockquote>\n
\t\t      (ii).”<\/p><\/blockquote>\n
\t    The\t ground\t of invalidation urged is that there  is  no
\n\tjustification  for grant of 5 marks to an applicant  falling
\n\twithin\tr. 155A (3)(D)(1) solely for the reason that  it  is
\n\towned  by the State Government. Ownership is irrelevant\t and
\n\tthe sacrifice of public interest at the altar of  government
\n\tinterest  is contended to be a flagrant partiality shown  by
\n\tthe subordinate legislation in the teeth, and  transgressing
\n\tthe  limits, of the equal consideration implicit in s.\t47(1
\n\t).  The. second argument
\n\t   397<\/span>
\n\t (Krishna Iyer, J.)
\n\tis  that  the proviso to s. 47(1), as amended by Act  48  of
\n\t1974 (Tamil Nadu Amendment Act) gives preference to a  State
\n\tTransport  Undertaking,\t other things being equal,  and\t im-
\n\tpliedly\t provides against any larger preference being  shown
\n\tto  such  an undertaking in the guise of  rules.   For\tthis
\n\treason,\t the  generosity of the rule being contrary  to\t the
\n\tnarrow preference in the proviso to the section (brought  in
\n\tby later amendment), the  former cannot\t co-exist  with\t the
\n\tlatter\tand must be taken as impliedly\trepealed.   Although
\n\tthis amendment to the Act was later than the promulgation of
\n\tthe  rules, the law as it stands today is the basis  of\t our
\n\tjudgment.   Thus  the two question formulated right  at\t the
\n\tbeginning of the judgment arise in the setting of facts\t and
\n\tlaw we have broadly described above.\n<\/p>\n
\t    It\twas  urged by Shri Chitale, followed by\t Shri  Rama-
\n\tmurthy,\t in two of the several matters heard together,\tthat
\n\tPart  IVA provided for monopolistic award of permits to\t the
\n\tState  Transport Undertaking but Part IV put everyone  on  a
\n\tcompetitive  basis,  regardless of whether one was  a  State
\n\tundertaking or not, the most meritorious winning the  battle
\n\tin a free market economy.  If the soul of Part IV were\tfree
\n\tcompetition,  not  ‘rigged’ selection, aid in the  shape  of
\n\textra  marks  given by rules had to be withdrawn  and  every
\n\tapplicant  had to run without anyone being given a  handicap
\n\tin the race.  State undertakings being awarded 5 grace marks
\n\tfor  no reason except that they belonged to the State was  a
\n\tgross  violation  of the spirit and letter of s. 4  7  (1  )
\n\twhich  postulated  the promotion of public interest  as\t the
\n\tbasic  consideration and the selection of the ablest as\t the
\n\tcriterion  for\tchoice. Both counsel, in  their\t overlapping
\n\targuments, stressed that there was a negative mandate in the
\n\tproviso\t to s. 47(1) not to prefer a State undertaking\tsave
\n\twhere other conditions were equal and if the State undertak-
\n\ting  was  unable to attain the condition  of  equality\twith
\n\tanother, its claim could not be promoted by the artifice  of
\n\tassignment of marks to a State undertaking qua State  under-
\n\ttaking.\n<\/p>\n
\t    Public law, in our pie-bald economy and pluralist socie-
\n\tty,   responds\tto societal  challenges\t and  constitutional
\n\tchanges.  TO miss the ideological thrust of our Constitution
\n\tand the economic orientation of our nation while  construing
\n\tlegislation  relating  to public law and scanning  them\t for
\n\ttheir  validity is to fail in understanding the social\tphi-
\n\tlosophy\t that puts life and meaning into the  provisions  of
\n\tthe Act. The law, being realistic, reckons with the  social-
\n\tist sector covering State and co-operative enterprises.
\n\t    The\t special  status  of  a\t government-owned  transport
\n\tundertaking  in\t a Welfare State is obvious.  It  has  large
\n\tresources to cater to the traffic needs.  It has, within its
\n\trange of influence and coordination. many services useful to
\n\tthe  travelling\t public, which may be beyond  the  reach  of
\n\tprivate ownership.  Its functional motto is not more profits
\n\tat  any\t cost  but service to citizens first and  in  a\t far
\n\tlarger\tmeasure\t than  private\tcompanies  and\tindividuals,
\n\talthough  profitability\t is  also a factor  even  in  public
\n\tutilities.   Its sensitivity to\t community welfare  and\t en-
\n\tcouragement  of labour participation, its accountability  to
\n\tthe  Government, the legislature and the public put it in  a
\n\tcategory  by itself.  It is socially conscious,\t not  profit
\n\tobsessed.   We are aware of the shortfalls of  some  public-
\n\tsector undertakings in some respects
\n\t398<\/span>
\n\tbut it needs little argument to hold that to classify  State
\n\ttransport  systems on a separate footing is realsic  and  is
\n\tordinarily  no sin before the principle of  equality  before
\n\tthe law. The legislative body has done, in the given circum-
\n\tstances,  what it  thought was sound policy  and we find  no
\n\tvice in the policy.\n<\/p>\n
\t    To\tclassify  what\tis  conceptually  and  operationally
\n\tdifferent  into\t a separate category  is  intelligence,\t not
\n\timpertinence.\tThe judicial art of interpretation  and\t ap-
\n\tpraisal\t is  imbued with creativity and\t realsm,  especially
\n\twhere fundamental changes have been wrought by the Constitu-
\n\ttion  in our approach to public sector\tenterprises.   Legal
\n\tDarwinism, adapting the rule of law to new societal develop-
\n\tments, so as to survive and serve the social order is neces-
\n\tsary:\n<\/p>\n
\t\t\t    “That  court best serves the  law  which
\n\t\t      recognizes that the rules of law which grew up
\n\t\t      in a remote generation may, in the fullness of
\n\t\t      experience, be found to serve another  genera-
\n\t\t      tion  badly, and which discards the  old\trule
\n\t\t      when it finds that another rule of law  repre-
\n\t\t      sents  what should be according to the  estab-
\n\t\t      lished and settled judgment of society, and no
\n\t\t      considerable   property  rights  have   become
\n\t\t      vested in\t reliance upon the old rule.  It  is
\n\t\t      thus  great writers upon the common  law\thave
\n\t\t      discovered  the  source  and  method  of\t its
\n\t\t      growth, and in its growth found its health and
\n\t\t      life. It is not and it should not be  station-
\n\t\t      ary.  Change of this character should  not  be
\n\t\t      left  to\tthe  legislature.   If\tjudges\thave
\n\t\t      woefully\tmisinterpreted\tthe mores  of  their
\n\t\t      day,  or\tif  the mores of their\tday  are  no
\n\t\t      longer  those of ours, they ought not to\ttie,
\n\t\t      in  helpless  submission, the hands  of  their
\n\t\t      successors.”\n<\/p><\/blockquote>\n
\t\t      (Cardozo:\t  The Nature of the  Judicial  Proc-
\n\t\t      ess:  Yale University Press: pp. 151-152).<\/p><\/blockquote>\n
\t    This  refreshing  perspective guides us to look  at\t the
\n\tsubmissions advanced.  Both the contentions can be shot down
\n\tby three considerations.  Firstly, a State enterprise, in  a
\n\ttruly Welfare State, is charged with a social  consciousness
\n\tand  responsibility for its citizens, an attention to  serve
\n\tthem and a willingness to embark on public utility undertak-
\n\tings  better to fulfil people’s demands.  The public  sector
\n\tenterprises  are  expected to be model employers  and  model
\n\tservants,  planning their budgets, subjecting themselves  to
\n\tpublic\taudit and criticism and inquest by legislative\tcom-
\n\tmittees\t and  the Houses of the\t legislature.\tProfits\t are
\n\ttheir  concern but, more importantly, public weal  is  their
\n\tcommitment.   Such is the philosophy of the State sector  in
\n\tour  socialistic pattern of society.  Article 19(6)(ii)\t and
\n\tArt.  38  of the Constitution, s. 47 (1\t ),  especially\t the
\n\tproviso,  and  Charter IVA of the Act (now governed  by\t the
\n\timpregnable Ninth schedule to the COnstitution) throw  light
\n\ton  this policy of the paramount law. Here,  therefore,\t the
\n\trule making authority, having regard to all relevant circum-
\n\tstances, has decided to award to a State Transport Undertak-
\n\ting 5 marks.  This is not an arbitrary stroke of favouritism
\n\tbecause\t there are many promotional factors bearing  on\t the
\n\tinterest  of the travelling public which a State  enterprise
\n\tqua  State  enterprise will, but a  private  enterprise\t qua
\n\tprivate enterprise will not, take  care\t of.\n<\/p>\n
\t399<\/span><\/p>\n
\t(Krishna lyer, J.)
\n\tAfter all, private enterprise has its primary motivation  in
\n\tprofit,\t although,  under State direction,  it\tis  becoming
\n\tsocially  responsive. The superiority in many respects\t(not
\n\tall respects) of State Transport Undertakings, in the legis-
\n\tlative\tjudgment, has led to r. 155A.\tThis  classification
\n\thas noetic nexus with and rational relation to the object of
\n\taugmenting the good of the passenger community.\t The theory,
\n\trooted in the obsolescent laissez faire economics, that only
\n\tcold  competition among claimants to run  businesses  brings
\n\tout  the  best operator has serious  limitations  in  fields
\n\twhere the focus is on public service, not gains of business.
\n\tPublic\tlaw,  adapting itself to this  socio-economic  view,
\n\tshifts\tits emphasis.  This is what we have  earlier  called
\n\tlegal Darwinism.  We, therefore, hold that the assignment of
\n\tmarks  under r. 155A is geared to public interest, which  is
\n\tthe desideratum of s. 47 ( 1 ) of the Act.\n<\/p>\n
\t       We now move on to an examination of the alleged fatal
\n\tincompatibility between the proviso to s. 47(1) and L  155A.
\n\tThis  second submission of counsel is a\t trifle\t mystifying.
\n\tThere cannot be a contradiction without diction.  Unless  s.
\n\t47(1)  proviso carries a negative injunction that  transport
\n\ttribunals  shall not give any other preferential  considera-
\n\ttion  than what is stated in it,  there cannot be  any\tcon-
\n\tflict between it and the impugned rule.\t The proviso to\t the
\n\tsection does nothing of the kind.  It merely takes care of a
\n\tspecific situation. Where a State Transport Undertaking: and
\n\ta  private operator are equally balanced, the scales may  be
\n\ttilted\tin favour of the former. There is no implied  inter-
\n\tdict  that  in\tother contingencies no\tpreference  shah  be
\n\taccorded.   It is not a ‘Thus far and no further’.   Indeed,
\n\tthe  spirit of this proviso has been carried further by\t the
\n\trule, having regard to the realities of the total  transport
\n\tsystem plying in the  State.\n<\/p>\n
\t     The third consideration which silences the\t appellant’s
\n\tcharge\tof  violation of s. 47 is that the  marking  formula
\n\tdoes  not  deprive  the administrative\ttribunals  of  their
\n\tdiscretion to choose the best.\tThe    consternation of\t the
\n\tprivate\t entrepreneurs that by manipulating  the     marking
\n\tmechanism  the State undertaking, regardless of\t its  demons
\n\ttrable inferiority of public service, will knock off all the
\n\tpermits,  paralysing the power of the Tribunal to  pick\t and
\n\tchoose,\t by the overwhelming and inevitable  superiority  of
\n\tmarks,\tis misplaced.  The  fear is falsified if we read the
\n\trule aright.  It has, written on its face,   its own limita-
\n\ttion.\tMarks  shall  guide, not  govern  the  award.\tFull
\n\tdiscretion, to some extent, canalised by the marking  proce-
\n\tdure,  still   vests in the Transport Authority.   For,\t the
\n\tmarks, these authorities  will remember, sway the   exercise
\n\tof   judgment, not  supersede it.    It is conceivable\tthat
\n\tthe  pecularities of a route, the calamitous performance  in
\n\tan  area of a State transport system, the  outstanding\tspe-
\n\tcial  facilities of a particular private operator  or  other
\n\tlike  feature  may outweigh the mechanics of  marks.   After
\n\tall,  many  qualifications, advantageous to  the  travelling
\n\tpublic,\t may be thought of, untouched by the  rigid  marking
\n\tmoulds.\t They are not irrelevant and may still be   regarded
\n\tby  the\t tribunals.  All this leads to the  conclusion\tthat
\n\tmarks  shape but do not clinch the ultimate selection.\t The
\n\tpublic\tis the\t consumer; its plenary service is the  final
\n\ttest.  Therefore, these is
\n\t400<\/span>
\n\tnothing\t in r. 155A deprivatory of the discretion vested  by
\n\ts. 47(1).This interpretative footnote must allay the  appre-
\n\thensions voiced by counsel.  Nor are we convinced that there
\n\tis no possibility of a private operator exceeding the  mini-
\n\tmum  marks of a State Transport Undertaking.  Moreover,\t the
\n\tmarking formula lacks flexibility. Merely because the  State
\n\tTransport  Undertaking has no ‘residence’   or\tworkshop  on
\n\tthe  route, although its attention and ability to react\t are
\n\tconsiderable, why should it suffer a marks-created  handicap
\n\t? There is equity in r. 155A, making up, as it does, for the
\n\tpresent\t shortfalls in the marking system visa visa  govern-
\n\tment transport service.\n<\/p>\n
\t  The  appeals,\t for these reasons, must  suffer  dismissal.
\n\tThere will be no order as to costs.\n<\/p>\n
\t  BEG,\tJ.   I\tagree with the conclusion  reached   by\t  my
\n\tlearned brother Krishna Iyer.  As arguments in this batch of
\n\tcases seem to raise some questions which I, speaking entire-
\n\tly  for myself, consider to be really outside the sphere  of
\n\tthe  law which we have to interpret and apply, I would\tlike
\n\tto  make  some\tobservations on the  implications  of  these
\n\tquestions argued after stating my reasons for agreeing\twith
\n\tmy learned brother.\n<\/p>\n
\t    Mr. Chitaley’s first argument for some of the appellants
\n\traised\tonly what may be described as “normal”\tlegal  ques-
\n\ttions  of  construction\t or interpretation  (there  is\tsome
\n\tdifference  between   these  two allied\t processes  as\twill
\n\tappear\tfrom Crawfords “Statutory Construction”, 1940  Edn.,
\n\tChapter\t 18,  paragraph\t 157 to 158 pages  240-244),  as  to
\n\twhether Rule 155A(3)(D)(i), reproduced in the judgment of my
\n\tlearned brother Krishna Iyer, gives effect to or   conflicts
\n\twith Section 47 of the Motor Vehicles  Act, 1939  (hereinaf-
\n\tter  referred to as ‘the Act’).\t It was urged by the learned
\n\tCounsel\t that what can be done only by resorting to  Chapter
\n\tIV-A of the Act, by framing a scheme for partial or complete
\n\tnationalisation\t of  the routes involved, cannot  be  accom-
\n\tplished by framing a rule only ostensibly purporting to give
\n\teffect to Section 47(1 ) of the Act or the proviso to it.
\n\t    In\tultimate analysis, the rule of\tconstruction  relied
\n\tupon  by Mr. Chitaley to make the last mentioned  submission
\n\tis:  “Expressio unius est exclusio alterius”.\tThis  maxim,
\n\twhich  has been described as “a valuable servant but a\tdan-
\n\tgerous master (per Lopes  J.,  in Court of Appeal in  Colgu-
\n\tnoun  v. Brooks(1) finds expression also  in a rule,  formu-
\n\tlated  in Taylor v. Taylor,(2) applied by the Privy  Council
\n\tin Nazir Ahmad v. King Emperor(3) which, has  been   repeat-
\n\tedly adopted by this Court.  That rule says that an express-
\n\tly laid, down mode of doing something necessarily implies  a
\n\tprohibition  of doing it in any other way.   The maxim\tfrom
\n\twhich  the rule in Taylor  v. Taylor(supra) is\tderived\t and
\n\tthe  rule  itself  were\t discussed  and\t explained  by\tthis
\n\tCourt  in   the\t Parbhani  Transport   Co-operative  Society
\n\tLtd. v. the Regional Transport\tAuthority, Aurangabad  & Ors
\n\t(4)  with specific reference to the argument advanced  there
\n\tthat,
\n\t(1)  (1881) 21 Q.B.D. 52 at 65.\t    (2) (1876) 1 Ch. D.\t 426
\n\tat  430. (3) (1936) L.R. 63 I.A. 372.\t    (4)\t [1960]\t (3)
\n\tS.C.R. 177.\n<\/p>\n
\t401<\/span><\/p>\n
\tas  Chapter IV-A is meant for running its own buses  by\t the
\n\tState  by  nationalisation of Motor Vehicle  Road  Transport
\n\tServices,   it\twas not open to the State to apply for\tper-
\n\tmits  at  all under Chapter IV of the Act which\t applies  to
\n\tprivate\t operators  only.  This\t argument,repelled  by\tthis
\n\tCourt  there has been put forward before us  in\t a  somewhat
\n\tdifferent  and attenuated form by Mr.  Chitaley.   Neverthe-
\n\tless,  the basic rule of interpretation submitted to  us  is
\n\tthe  same as the one which was relied upon in this Court  in
\n\tthe Parbhani  Transport Co-operative Society’s case  (supra)
\n\tin an  attempt\tto  exclude the State Transport\t Undertaking
\n\taltogether from entry into what was sought to be made out to
\n\tbe the exclusive preserve of private operators.\t Before\t us,
\n\tit  is contended that exclusion of private  operators  could
\n\tonly be brought about by resorting to a duly framed  scheme,
\n\ton appropriate grounds given in Section 68C of the Act,\t but
\n\tnot   indirectly by framing the kind of rule which  has\t the
\n\teffect\tof  excluding private operators from the  sphere  of
\n\topen  competition which, it is submitted postulates an\tini-
\n\ttial equality of positions.  This argument rests, as I\twill
\n\tindicate  below,  on  two  erroneous  assumptions:  firstly,
\n\tthat Rule 155A(3)(D)(i) has the effect of excluding private
\n\toperators; and, secondly, that the proviso to section  47(1)
\n\tcompels the permit issuing authorities to postulate or start
\n\tby  assuming  an equality of conditions, as between  private
\n\toperators  and\ta  State  Transport Undertaking.  Indeed, if
\n\tthey  were to  start  with  the assumption of equality\tthey
\n\twill  have to give preference to the State Transport  Under-
\n\ttaking\tstraightaway  because that is what the\tproviso\t re-
\n\tquires.\t  The mainstay of the arguments of  learned  Counsel
\n\tfor  the  appellants  before  us,  however,  is\t that\tRule
\n\t155A(3)(D)(i) really has the effect of excluding the private
\n\toperators  altogether  by making it impossible for  them  to
\n\tever obtain preference\tover  the  State Transport Undertak-
\n\ting  when it applies for a permit in\tcompetition  against
\n\tthem.\n<\/p>\n
\tThe  reply  on behalf of the State is that no  exclusion  of
\n\tprivate operators is either intended or brought about by  an
\n\tapplication of Rule 155A(3)(D)(i) of the Act.  On the  other
\n\thand, it  is  submitted that, as an ordinary operator and  a
\n\tState  Transport  Undertaking are, in many ways,  so  unlike
\n\teach  other that,  unless  five marks were assigned to\teach
\n\tapplication of\tthe  State  Transport Undertaking, it  could
\n\tnot  compete at all, on a fair and equal footing, with\tpri-
\n\tvate  operators, who are able to  obtain  straightaway\t two
\n\tmarks for residential qualifications, four marks if they are
\n\toperating  not\tmore  than three buses, and  two  marks\t for
\n\tworkshop facilities.  apparently, the residential qualifica-
\n\ttion  has reference  to\t residence within the area in  which
\n\tthe motor vehicles are to ply, and marks workshop facilities
\n\tare granted to operators who are able  to  show such facili-
\n\tties  on  particular routes whereas  the   State   Transport
\n\tUndertakings,  it is pointed out, will neither have a  resi-
\n\tdence\twithin\tsuch an area nor may be able to show,  in  a
\n\tparticular  case, workshop facilities on  particular  routes
\n\teven  though they  may\thave  better workshop facilities  on
\n\tthe  whole.   Again, two marks are to be  given\t to  private
\n\tconcerns  or organisations, plying on particular routes,  if
\n\ttheir  owners or Managing Directors have  certain  technical
\n\tqualifications.\t It is pointed out that, as State  Transport
\n\tUndertakings do
\n\t402<\/span>
\n\tnot  have individual owners or Managing Directors, for\twhom
\n\tthese  marks could be allotted, even though they  may\thave
\n\ttechnically  much  better qualified personnel to  attend  to
\n\ttheir motor  vehicles, the impugned Rule 155A(3)(D)(D  could
\n\tbe  justified as meant only to place State Transport  Under-
\n\ttakings\t on  a\tfooting of possible  equality  with  private
\n\toperators  in  competing. for permits to  be  granted  under
\n\tSection\t 47(1) read with Section 42(3) of the Act and to  do
\n\tno more.  Furthermore, Rule 155A(3)(D)(i) occurs in a  group
\n\tfor  marks  to\tbe assigned on the basis of  the  number  of
\n\tvehicles run by the operators.\tIn any case, it was  submit-
\n\tted that  it  is  a  fair provision as a rough guide but  is
\n\tnot decisive by any  means.  It seems to me that the conten-
\n\ttion advanced on behalf of the State that the impugned\tpart
\n\tof Rule 155A enables provisions\t of  the proviso to  Section
\n\t47(1),\tread  with Section 42(3), to be worked a  manner  in
\n\twhich the statutory provisions were intended to overate\t and
\n\tdoes not really authorise a circumvention  or\tinfringement
\n\tof the provisions of Chapter IV of the Act, is well founded.
\n\t    The manner in which provisions of Chapter IV of the\t Act
\n\twere  meant to operate in cases of competition between\tpri-
\n\tvate  operators and State Undertakings was explained in\t the
\n\tParbhani   Transport Co-operative Society’s case (supra)  as
\n\tfollows (at p. 184):\n<\/p>\n
\t\t\t   “The\t Government has of course the  power
\n\t\t      to do. any business it lies and therefore\t the
\n\t\t      business Of running stage carriages.  We\thave
\n\t\t      earlier drawn attention to the change made  in
\n\t\t      cl. (a) of S. 42(3) by the: amendment of 1956.
\n\t\t      Previously,  it  was  not\t necessary  for\t the
\n\t\t      Government   to obtain permits under s.  42(1)
\n\t\t      for  buses  that it intended to run  as  stage
\n\t\t      carriages.  SinCe the amendment the Government
\n\t\t      can  no  longer run  transport  vehicles\t for
\n\t\t      commercial purposes without obtaining  permits
\n\t\t      under  S. 42(1 ). Now the plying of buses\t as,
\n\t\t      stage carriages is a commercial enterprise and
\n\t\t      for such buses, therefore, under\tthe sections
\n\t\t      as  they stand,  the  Government\t would\t re-
\n\t\t      quire  permits as any one else.\tThat   being
\n\t\t      so,   the\t sections clearly, contemplate\tthat
\n\t\t      the  Government  may  apply   for\t and  obtain
\n\t\t      permits  for  its buses run  as\tstage\tcar-
\n\t\t      riages. The rule applied in Nazir Ahmad’s case
\n\t\t      (1936) L.R. 63, I.A. 372, 381) does not permit
\n\t\t      the ordinary meaning of s. 42, sub. s.(1)\t and
\n\t\t      sub.  s.(3), el. (a) to be  cut  down  because
\n\t\t      of  the  provisions of Chapter IVA.   The\t Act
\n\t\t      lays  down two independent sets of  provisions
\n\t\t      in  regard  to the. running of  buses  by\t the
\n\t\t      Government,  one\tunder Chapter  IV  and,\t the
\n\t\t      other  under  Chapter IVA.  Chapter  IVA\t was
\n\t\t      intended\tto give the Government,\t a   special
\n\t\t      advantage.  When\tthe  Government\t chooses  to
\n\t\t      proceed\tunder\tthat  chapter,\tit   becomes
\n\t\t      entitled as a matter of  right  under s. 68F(1
\n\t\t      ) to the necessary permits.  Under Chapter  IV
\n\t\t      the  Government does not have any such  advan-
\n\t\t      tage; it has to compete with other applicants,
\n\t\t      to secure permits to be able to run its buses.
\n\t\t      The powers under the two. chapters are  there-
\n\t\t      fore different.  To such a case the  principle
\n\t\t      of Nazir Ahmad’s case cannot be applied”.\n<\/p><\/blockquote>\n
\t403<\/span><\/p>\n
\tBoth  Chapters IV and IVA enable plying of  State  transport
\n\tas well as privately owned vehicles on hire on same  routes,
\n\tbut   the  grounds for these combined operations  under\t the
\n\ttwo   chapters\tare different.\tThe governing  principle  of
\n\tSection 47(1) is to preserve as free and open a\t competition
\n\tas  possible  in  public interest, whereas  the\t reason\t for
\n\tallowing private operators upon a nationalised route may  be
\n\tbroader\t one of public policy which may favour\ta   decision
\n\tagainst\t sudden stoppage of privately provided motor  trans-
\n\tport, so as to avoid wastage of national wealth, even though
\n\tit  takes the form of  investments by  individual  entrepre-
\n\tneurs, or, its object may even be prevention of undue  hard-
\n\tship   to  private  operators.\tOther  reasons\tfor  permit-
\n\tting  combined\tservices  can be. given.   It  is,  however,
\n\tpossible only under Chapter IVA to exclude private operators
\n\tcompletely.  But, unless any rule relating to  provision  of
\n\tmotor  transport under chapter IV has that effect it  cannot
\n\tbe  asserted  that  what can be done only  by  resorting  to
\n\tChapter\t IVA  is  being attempted under\t the  provisions  of
\n\tChapter IV.\n<\/p>\n
\t    The rule in Nazir Ahmad’s case (supra) applies only\t  to
\n\tcases  where there is a single specified mode laid down\t for
\n\tdoing something in exercise of the legal power to do it.  In
\n\tthat event, the\t specified mode-may, negatively, operate  as
\n\ta  prohibition against what is not prescribed at all and  is
\n\toutside\t the  statute.\tBut, it could not apply\t to  a\tcase
\n\twhere two modes of doing the same thing are provided for  by
\n\ta statute itself.  Nor, as I have indicated above, could  it
\n\tbe  said that what is to be done under Chapter IV  and\twhat
\n\tcan be done under a scheme under Chapter IVA are really\t the
\n\tsame  simply because, in a given case, the results  of\tboth
\n\tmay appear to be similar or  even identical.\n<\/p>\n
\t    Mr.\t Ramamurthi,  appearing\t on behalf of  some  of\t the
\n\tappellants,  embarked on quite an ambitious  argument  built
\n\tupon  an elaboration of the theme that Chapters IV  and\t IVA
\n\tbelong\tto two different fields or spheres of  action  which
\n\tcannot, so to speak, be allowed to mix, overlap, or collide.
\n\tIt was contended that the waters of what are, in the eye  of
\n\tlaw, two different streams of activity. must not be  allowed
\n\tto  mingle.  If 1 am not mistaken, even the  word  “pollute”
\n\twas used, in the flow of arguments, to describe, possibly in
\n\ta  light   vein,  the alleged inequity of an invasion  by  a
\n\tState  Transport  Undertaking of  the  supposedly  exclusive
\n\tpreserve of private enterprise.\t It was suggested that\tsuch
\n\ta  result  would involve “pollution” of the domain  of\topen
\n\tcompetition,  which is forbidden territory for State  Under-
\n\ttakings\t introduced as a consequence of another ideology  or
\n\tsphere of action found in Chapter IVA.\tIt seems to me\tthat
\n\tto hear such  an  argument, advanced even in a lighter vein,
\n\tis  really rather surprising in view of the language of\t the
\n\tstatute\t and welt known facts to which it is related. It  is
\n\tquite  well  known that ours is what is known  as  a  “mixed
\n\teconomy”.  The\thighest\t norms\tof our-law are\tembodied  in
\n\tour  Constitution.  Article 19(6)(ii)  of  the\tConstitution
\n\tclearly\t contemplates:\t“the carrying on by the State, or by
\n\ta  Corporation or controlled  by  the State, of\t any  trade,
\n\tbusiness,  industry  or service, whether to  the  exclusion,
\n\tcomplete  or partial, of citizens or.  otherwise”..  And,-in
\n\torder  to  fulfil  the objectives of the  Preamble.  to\t our
\n\tConstitution, the Constitu-\n<\/p>\n
\t404<\/span><\/p>\n
\ttional mandate, contained in Article 39(c) of the  Constitu-
\n\ttion, which the State has to carry out, may make it  impera-
\n\ttive  upon the\tState, in appropriate circumstances,  either
\n\tto take over or nationalise motor transport on roads in\t any
\n\tregion\tor  area completely or to supplement  the  Transport
\n\tServices  provided by private operators with those  provided
\n\tby the State.  It seems to me that neither  Chapter IV\t nor
\n\tChapter IV-A can be really put into two separate water-tight
\n\tcompartments  so as to make it imperative either to  exclude
\n\tState Transport Undertakings from operating under the provi-
\n\tsions  of Chapter IV or to exclude private operators when  a
\n\tscheme under Chapter IV-A, which may itself provide for only
\n\ta partial exclusion of such operators, is in force.  In\t the
\n\tface of the clear words of proviso to Section 47 (1 ) of the
\n\tAct,  enabling\tState  Transport  Undertakings\tto   provide
\n\tTransport  facilities  in open competition, and\t of  Section
\n\t68(C)  in Chapter IV-A of the Act, enabling  “the  exclusion
\n\tcomplete  or partial” of private operators  from  particular
\n\tareas  or routes, such an argument cannot be put forward  at
\n\tall  before us under some preconceived\tnotions\t even  after
\n\tthese  very notions had been rejected by this Court  in\t the
\n\tParbhani Transport Co-operative Society Ltd’s case  (supra).
\n\tIt  is clear  that the two chapters  of\t the  same  Act\t are
\n\tboth intended to subserve “the interest of the public gener-
\n\tally” in any area in the country, That is the integrating or
\n\tgoverning  principle  evident from the language of  the\t Act
\n\titself in both Chapter IV and Chapter lV-A of the Act.
\n\t  An argument advanced on behalf of the appellant seemed  to
\n\tbe that Rule 155A(3)(D)(i) results in defeating the  mandate
\n\tof  Section  47(1) of the Act, that the\t Regional  Transport
\n\tAuthority must, as explained repeatedly by this Court,\tkeep
\n\t“the  interest of the public generally” in  the\t fore-front.
\n\tAs already indicated by me, this argument really proceeds on
\n\tthe  erroneous assumption that the mere fact that the  State
\n\tTransport Vehicles are given five marks would defeat  public
\n\tinterest by excluding consideration of all facts except that
\n\tthe State Undertaking has applied for one or more permits on
\n\ta particular route.  As my learned brother Krishna Iyer\t has
\n\talso  pointed out, this is an unwarranted assumption.\tRule
\n\t155A  gives only guidance, but the totality of factors\tmen-
\n\ttioned in Section 47(1)’really decide.\n<\/p>\n
\t  It  was suggested on behalf of the State Transport  Under-
\n\ttaking\tthat the obvious capacity of a State Undertaking  to
\n\tprovide\t facilities  which are beyond the reach\t of  private
\n\toperators, that its actions are subjected to such  constant,
\n\tvigilant, and rigorous control on behalf of the public,\t and
\n\tthat  it  is  bound to be so free from any  desire  to\tmake
\n\tprofit.s, by sacrificing public interests or convenience  of
\n\tpassengers that, even if nothing else was considered,  these
\n\tpresumed advantages would justify the award of five marks on
\n\teach   application  of\tthe State Undertaking for a  permit.
\n\tIf  this line of reasoning was completely accepted and\tcar-
\n\tried to its logical conclusion, the provision\/or giving five
\n\tmarks  ,to each application of the State  Undertaking  would
\n\tbecome\tquite otiose or unnecessary because, in\t that  case,
\n\tthe State Undertaking would, by relying merely on a presumed
\n\tsuperiority  for purposes of Section 47 (1 ), get a  prefer-
\n\tence  automatically.  The proviso to Section 47 (1 ) of\t the
\n\tAct  would then, apart from making it clear that  the  State
\n\tUndertaking can also apply for permits, for which
\n\t405<\/span>
\n\tpurpose Section 42(3) was enough, serve: no useful  purpose.
\n\tIndeed,\t if such a view were to be accepted, the first\tpart
\n\tof the\tproviso\t to Section 47 (1 ) would seem to rest on  a
\n\tfalse  premise\tbecause\t  there could be no  case  in  which
\n\t“other conditions” could ever be “equal” as between a  State
\n\tTransport  Undertaking\tand a private operator.\t  The  State
\n\tTransport Service would, in that case, always get a  prefer-
\n\tence.  For  this reason, I do not think that  this  line  of
\n\treasoning could\t be pushed too far. It has to be assumed, in
\n\tview of the opening words of the proviso to section 47 (1 ),
\n\tthat  there  may be cases in  which  an application  of\t the
\n\tbasic principle, contained in Section 47 (1) of the Act, may
\n\ttilt the balance either in favour of the State\t Undertaking
\n\tor  the\t private operator. The proviso applies\tonly   where
\n\tthe  State Undertaking could’ reasonably be deemed to be  in
\n\ta  position  of equality as regards  comparative  advantages
\n\toffered\t by it.\t As there cannot, between  such\t dis-similar
\n\toperating  units, be comparability of conditions  or  advan-
\n\ttages  offered unless some rule is flamed and applied  which
\n\tcould  make comparison reasonably possible, it seems  to  me
\n\tthat  Rule 155A(3) (D)(i) is justifiable on the ground\tthat
\n\tit makes  what\tis legally contemplated and permissible also
\n\tpracticable.\n<\/p>\n
\t\t      The  proviso.  to\t Section 47 (1\t)  reads  as
\n\t\t      follows:\n<\/p>\n
\t\t\t     “Provided\tthat other conditions  being
\n\t\t      equal,  an  application for a  stage  carriage
\n\t\t      permit from any State Transport Undertaking or
\n\t\t      a co-operative Society registered or deemed to
\n\t\t      have  been registered under any  enactment  in
\n\t\t      force for the time being shall, as far as\t may
\n\t\t      be, be given preference over applications from
\n\t\t      individual owners.”\n<\/p>\n
\tAn  examination of this proviso shows that an.\tequality  of
\n\tother  conditions  is contemplated before  any\tquestion  of
\n\tgiving\tpreference, merely on the ground that the  applicant
\n\tis the State Transport Undertaking or a Cooperative Society,
\n\tcan arise.  If other conditions are equal, then,  undoubted-
\n\tly,  the choice as between such equals must, if the  proviso
\n\tis to be given effect, be made in favour of the State Trans-
\n\tport  Undertaking  or a Cooperative  Society  automatically.
\n\tThat  is  how, in such a case, See. 47(1)  itself  would  be
\n\tdeemed to operate.\n<\/p>\n
\t     The validity of the proviso is not challenged.  Even if
\n\tArticle\t 14 were available for an attack upon it, as  it  is
\n\tnot during the current emergency, it is clear that the State
\n\tTransport  Undertaking\tdoes stand in a\t separate  category.
\n\tTherefore, it could be found  entitled,\t for obviously\tgood
\n\tand  intelligible  reasons,  to\t preference   over   private
\n\toperators “other conditions being equal”.  The narrow  ques-
\n\ttion before us.\t Thus, appears to me to be nothing more than
\n\twhether\t the  impugned part of Rule 155A sub-serves or\tvio-
\n\tlates  the proviso.  The proviso itself is meant to  explain
\n\twhat  public interest, as visualised by Section\t 47(1),\t re-
\n\tquires.\t  Hence\t it appears to me that the validity  of\t the
\n\timpugned  part\tof Rule 155A could be determined  on  purely
\n\tlegal  grounds as a necessary corollary of the\tproviso\t  to
\n\tSection\t  47(1). The impugned part of the Rule is  there  to
\n\tmake the proviso workable and not to defeat its provisions.\n<\/p>\n
\t406<\/span><\/p>\n
\t    It\tis,  however, becoming increasingly  fashionable  to
\n\tstart  with some` theory of what is basic to a provision  or
\n\ta chapter  or  in  a statute or even to our Constitution  in
\n\torder to interpret and determine the meaning of a particular
\n\tprovision  or  rule  made to sub-serve\tan  assumed  “basic”
\n\trequirement.   I think that this novel\tmethod of  construc-
\n\ttion  puts, if I may say so, the cart before the  horse.  It
\n\tis  apt to seriously mislead us unless the tendency  to\t use
\n\tsuch a mode of construction is checked or corrected by\tthis
\n\tCourt.\tWhat is basic for a section or a chapter in a  stat-
\n\tute is provided: firstly, by the  words used in the  statute
\n\titself;\t secondly, by the context in which a  provision\t oc-
\n\tcurs, or, in other words, by reading the statute as a whole;
\n\tthirdly, by the preamble which could supply the “key” to the
\n\tmeaning\t of  the statute in cases of uncertainty  or  doubt;
\n\tand, fourthly,\twhere  some further aid to construction\t may
\n\tstill be needed to resolve an uncertainty by the legislative
\n\thistory which discloses the wider context or perspective  in
\n\twhich a provision was made to meet a particular need or\t  to
\n\tsatisfy\t a  particular purpose.\t The last  mentioned  method
\n\tconsists of an application of the Mischief Rule laid down in
\n\tHeydon’s  case\tlong ago.\n<\/p>\n
\t    If\twe start from a theory as to. what the real  purpose
\n\tor need is or could be, the danger is that we may be inject-
\n\ting a subjective notion or purpose of our own into what\t is,
\n\tafter  all, a legal question of construction or\t interpreta-
\n\ttion, according to well\t recognised  principles, although it
\n\tmay be necessary, in exceptional eases, to explain or forti-
\n\tfy the interpretation adopted in the light of so well under-
\n\tstood and. well known a purpose or theory that we could take
\n\tjudicial  notice of  it and refer to it.  The exposition  of
\n\tthe  well  known  purpose or  theoretical  foundation  must,
\n\thowever, generally, flow from and explain an  interpretation
\n\tadopted,  on  the  strength  of\t  legally   acceptable\t and
\n\taccepted  canons  of construction, if we are  to  avoid\t the
\n\tdanger\tof  an a priori determination of the  meaning  of  a
\n\tprovision  based   on  our own pre-conceived notions  of  an
\n\tideological structure or scheme into which the provision  to
\n\tbe  interpreted\t is somehow fitted.  The  path\tof  judicial
\n\tcertainty  and\tpredictability\thas to be  paved  with\twell
\n\tsettled\t principles of construction and interpretation.\t  We
\n\tcannot\tlet   it develop into a slippery slope\tbe-set\twith
\n\thazardous possibilities. The science of statutory  construc-
\n\ttion and interpretation–I think can call it that–rests  on
\n\tcertain\t systematised principles and rules of common  sense,
\n\tlogic,\tand reason.  It can not be transformed into a  happy
\n\thunting\t ground for whatever may captivate the\tforensic  or
\n\tjudicial  fancy or become something akin to  poetry  without
\n\teven the attractions  of euphony.\n<\/p>\n
\t    For the reasons given above, I find that, on an applica-
\n\ttion of the ordinary and well recognised rules of  interpre-
\n\ttation,\t without  resorting  to any of\tthe  novel   methods
\n\tsuggested  by some of the arguments of learned\tCounsel\t for
\n\tthe  appellants, the impugned part  of\tRule 155A(3)  (D)(i)
\n\tis  valid.  I, therefore, concur with  nay  learned  brother
\n\tKrishna Iyer, and hold that the connected appeals and  peti-
\n\ttions before us must be dismissed.\n<\/p>\n
\tM.R.\t\t\t\t\t      Appeals\tdis-\n\tmissed.\n\t?407\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India D.R. Venkatachalam & Ors vs Dy. Transport Commissioner & … on 10 December, 1976 Equivalent citations: 1977 AIR 842, 1977 SCR (2) 392 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: D.R. VENKATACHALAM & ORS. Vs. RESPONDENT: DY. TRANSPORT COMMISSIONER & OTHERS DATE OF JUDGMENT10\/12\/1976 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. RAY, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-124082","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nD.R. Venkatachalam & Ors vs Dy. 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