S LALITHA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE prayer in the writ petition is to issue a Writ of declaration declaring Rule 149 of the Tamil Nadu Motor Vehicles Rules, 1989 insofar as it relates to the delegation of power to suspend the permit under section 86 (4) of THE Motor Vehicles Act, 1988 read with Section 68 (5) of the said Act as ultravires Constitution of India insofar as the petitioner is concerned.

(2.) THE case of the petitioner is briefly stated hereunder:- THE petitioner is a stage carriage operator, contract carriage operator and public carrier operator in Tamil Nadu State operating among others a contract carriage TSA. 3979 since replaced by TAS 3033 which is covered by an All India Tourist Permit issued by the 2nd respondent herein under Section 63 (7) of the Motor Vehicles Act, 1939. THE said vehicle was checked by the Motor Vehicles Inspector, Red Hills at 5. 45 p. m. on 10. 8. 88 and four irregularities were reported. A charge Memo dated 21. 12. 88 was issued to the petitioner to show cause as to why the permit should not be cancelled or suspended and the petitioner submitted her explanation dated 22. 12. 1988 denying the charges. After hearing the petitioner, the 2nd respondent cancelled the permit in the exercise of the powers vested in him under Section 60 (1) of the Motor vehicles Act, 1939 with immediate effect. THE petitioner thereupon filed appeal no. 140 of 1989 before the third respondent and secured an order of stay of the proceedings of the second respondent cancelling the permit. THE said appeal is still pending. In the Memo of grounds of appeal, the petitioner has taken a specific ground that the exercise of power of cancellation by the 2nd respondent herein of the petitioner's permit, after delegating the power of suspension to his Secretary, without any categorisation in the rules of the irregularities for which the lesser punishment of suspension could be inflicted by the Secretary, has resulted in a violation of the petitioner's fundamental right as guaranteed under article 14 of the Constitution of India. Since the argument of this nature involving the vires of the statutory provisions and the rules framed thereunder, cannot be canvassed before the third respondent herein in the appeal, the petitioner has approached this Court by way of the present writ petition. It is stated that the action of the second respondent in reserving some cases to be disposed of by himself and at the same time directing his secretary to dispose of cases of similar nature or cases involving grave offences under delegated powers when the Secretary can only suspend the permit, has resulted in serious discrimination, violating the petitioner's fundamental right under Article 14 of the Constitution of India. As regards the tamil Nadu Motor Vehicles Rules framed under the Act, the rule 143 (ix) which gives power to the Regional Transport Authority to delegate under Section 86 to suspend a permit specifically excludes the stage carriages from its purview. THErefore, the validity of the said rule cannot be questioned at least insofar as stage carriages are concerned but on the other hand, when it comes to the power of the State Transport Authority, Rule 149 authorises to delegate his powers to the Secretary to the Transport Commissioner, Secretaries to State transport Authority and Assistant Secretaries without any restriction. THE failure to prescribe the categories of irregularities for which lesser punishment could be inflicted by the Secretary to the second respondent herein under the delegated powers, has resulted in such arbitrariness. With those averments, she prayed for declaration of Rule 149 of the said Rules as ultra vires the Constitution of India insofar as he is concerned.

(3.) WE are concerned with the constitutionality of Rule 149 of the Tamil Nadu Motor Vehicles Rules, 1989. Rule 149 runs as follows: ' 149. Powers of State Transport Authority-delegation of- The State Transport Authority may for the prompt and convenient despatch of its business by a general or special resolution delegate to the Secretary to the Transport Commissioner, Secretaries to State Transport authority and Assistant Secretaries all or any of the power vested in it under the Act and under these rules: Provided that no delegation shall be made in respect of the following: (i) Powers under Section 68 (3) to co-ordinate and regulate the activities of the Regional Transport Authority (ii) Power under Section 68 (3) to settle all disputes or difference of opinion between the Regional Transport Authorities: Provided further that in delegating its powers and functions, the State Transport Authority may impose any restrictions, limitations and conditions as it deems fit.' Some more provisions of the 1989 Act have been referred to by the learned counsel for the petitioner. Section 86 (4) of the Motor vehicles Act runs as follows:- ' (4) The powers. . . under sub section (1) (other than the power to cancel a permit) by the transport authority which granted the permit may be exercised by any authority or person to whom such powers have been delegated under sub section (5) of Section 68. ' Section 68 (5) of the Motor Vehicles Act, 1988 runs as follows: '(5) The State Transport Authority and any regional Transport Authority if authorised in this behalf by rules made under section 96 may delegate such of its powers and functions to such authority or person subject by such restrictions, limitations and conditions as may be prescribed by the said Rules. ' It is very much pressed that even though for the convenience, it is open to the State Transport Authority to delegate powers to the Secretary to the Transport Commissioner, Secretaries to State Transport Authority and assistant Secretaries in the absence of prescribed categories of irregularities for which lesser punishment could be inflicted by the Secretary to the second respondent under the delegated powers has resulted in such arbitrariness. It is true that the guidelines or categories of irregularities have not been prescribed while the same are exercised by Secretaries and Assistant secretaries. In this regard, straightaway I shall consider the Division Bench decision of this court referred to by the learned counsel for the petitioner, which is reported in Batcha Saheb v. R. T. Authority , AIR 1969 Mad. 223. No doubt, while construing Rule 134-A of the Madras Motor Vehicles Rules (1940)delegating the power under Section 60 (1) of the Motor Vehicles Act, 1939, the following conclusion of the Division Bench is very much relied on:- '15. There can be no doubt whatever, that, so long as the delegation can result in such a situation, the Rule itself directly offends Article 14 of the Constitution. This is very clear from the Dicta to state of WEst Bengal v. Anwal Ali , AIR 1952 SC 75. I do not think that this point need really be laboured. Where there are two possible procedures, one of which may be far graver in its consequences than the other, for the same categories of default, this is a situation to which Article 14 could strictly apply. There must be some reasonable classification, of the categories to which the graver punishment could be attracted, and these to which the punishment of suspension alone would be appropriate. Actually, it would not even be adequate if some broad division is made, such as, that the Regional Transport Authority selects cases, at his discretion, either for being dealt with by his Secretary, or being retained for his own disposal. To cite the observations of their Lordships: 'The mere fact of classification is not sufficient to relieve a statute from the reach of the quality clause of Article 14. To get out of its reach it must appear that not only a classification has been made but also that it is one based upon a reasonable ground on some difference which bears a just and proper relation to the attempted classification and is not a mere arbitrary selection. ' (Page 86, paragraph 37 ). Indeed, as the Rule stands, there is not even a semblance of a classification, and it is entirely a matter of arbitrariness and chance, whether the Regional Transport Authority would retain his own power to deal with some of the cases, or forward others, or direct them, to be forwarded, to the secretary for being dealt with, by exercise of the power of suspension. It may even be that for the very same default, some cases are dealt with in one way, some in the other. 16. Such a Rule cannot be possibly maintained, since it patently violates Article 14 of the Constitution that is the vice of this particular instance of delegation. Accordingly, these proceedings are allowed and Rule itself must be struck down. It is needless to point out that it is always open to the State Government, now, to frame an appropriate Rule or rules, making reasonable classification in respect of the categories of default in Section 60 (1) and relating the delegation of the lesser power, which is the object of the Rule, to this classification. The Writ Appeals and petitions are accordingly allowed and the Rule Nisi made absolute. ' According to the learned counsel for the petitioner, in view of the Division Bench decision and in the absence of any guidelines or categories of irregularities prescribed for the enforcement by the delegated authorities, Rule 149 of the said Rules is liable to be struck down.