SOWDAMBIGAI MOTOR SERVICE Vs. STATE OF TAMIL NADU, SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT AND ORS

JUDGEMENT

(1.) The Motor Vehicles Act, 1939, Central Act IV of 1939, was enacted by the Central Legislature and it came into force on 16th February, 1939. The said Act was obviously covered by Entry 20 in List III, Seventh Schedule to the Government of India Act, 1935, namely "Mechanically propelled vehicles". Chapter IV of this Act made elaborate provisions for control of transport vehicles. It is pursuant to the provisions contained in the said Chapter, permits are being granted for the purpose of running different types of motor vehicles on public roads. The system of granting of permits for the purpose of running buses on the road came up for consideration before a Bench of this Court in C.S.S. Motor Service And Ors. V. State Of Madras And Anr., 1953 AIR(Mad) 279 . In that case, this Court has held that the right of a citizen to carry on business in motor transport on public streets is within the protection of Article 19(1)(g) of the Constitution of India and as it is a right guaranteed under the said Article, the validity of the relevant sections of the Motor Vehicles Act must be determined with reference to the requirement of Article 19(6) and the said sections will be valid if they are reasonable restrictions imposed in the interests of the public. This Court also has taken the view that all public streets and roads vest in the State, but the State holds them as trustee on behalf of the public; that the members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the path-ways; and that the State as trustee on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally. This view of this Court was approved by the Supreme Court in Saghir Ahmad And Anr. V. State Of U.P. And Ors., 1955 1 SCR 707 and Raman and Raman Ltd. V. The State Of Madras And Ors., 1959 AIR(SC) 694 . Thus, it is clear that the system of granting permits for the purpose of running motor vehicles on public streets and roads has been recognised by this Court as well as the Supreme Court as a reasonable restriction imposed by the State in the interests of the public on the fundamental right of a citizen to carry on his business in running such motor vehicles and such restrictions will be valid if they are reasonable.

(2.) As we have pointed out already the Motor Vehicles Act, 1939, was passed with reference to Entry 20 contained in List III of the VII Schedule to the Government of India Act, 1935. The said List was also known as "Concurrent List" thereby implying that the Central Legislature as well as the Legislatures of the Provinces had power to make law with respect to the matters enumerated in that List. The Constitution of India has retained the three types of lists provided for in the Government of India Act, 1935, by way of distribution of Legislative powers between the Centre and the States. As far as this particular matter is concerned, the only difference is that this item of mechanically propelled vehicles has become item No. 35 of the "Concurrent List" in the Constitution, with a slight expansion, namely, "mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied", as against Item No. 20 in the Government of India Act. Thus, even under the Constitution of India, the Parliament as well as the State Legislatures have competence to make a law with regard to that matter. The relationship between law made by the Parliament and a law made by the Legislature of a State in respect of such matters is governed by Article 254 of the Constitution of India, corresponding to Section 107 of the Government of India Act, 1935. Article 254 of the Constitution in Clause (1) thereof provides for the prevailing of the law made by the Parliament over a law made by the Legislature of a State in the event of there being a repugnancy between the two Clause (2) of Article 254 of the Constitution is in the nature of a proviso to the provision contained in Clause (1) thereof. The said Clause (2) of Article 254 states:

(3.) On 18th June, 1971, the Governor of Tamil Nadu promulgated an Ordinance, namely, Ordinance VI of 1971 entitled as the Motor Vehicles (Tamil Nadu Second Amendment) Ordinance, 1971 hereinafter referred to as the Ordinance. By this Ordinance, certain amendments were made to the Central Act IV of 1939 and we, in the present case, are concerned with the amendments made to Chapter IV by way of introduction of Sections 62-A to 62-D to which we shall make a detailed reference a little later in the course of this judgment. Before the promulgation of the Ordinance, the instruction of the President had been obtained in pursuance of the proviso to Clause (1) of Article 213 of the Constitution. With reference to the material provisions referred to above, the Explanatory Statement annexed to the Ordinance stated as follows: