MADHABANANDA RAY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner No. 1 is the proprietor of the Cuttack Roadways while the remaining nine petitioners happen to be the managers of the different public carrier concerns. All of them have come before this Court in this application under article 226 of the Constitution challenging the vires of Section 74 of the Motor vehicles Act and the notification issued by the District Magistrate, opposite party no. 2, in purported exercise of powers vested in him under Rule 177 of the Orissa motor Vehicles Rules, 1940. The impugned notification dated 31-12-1971 is to the following effect:--

(2.) NO goods truck will be allowed to ply within the City of cuttack except during the hours between 11. 30 a. m. and 3. 00 p. m. and between 9. 30 p. m. and 8. 30 a. m. This time registration will not apply to goods vehicles plying on the roads mentioned in para 1 above.

(3.) THE goods vehicles employed for essential services and for meeting any emergency, shall be excluded from the operation of the above order, only on obtaining a certificate from the district Magistrate. Cuttack to that effect. " the godowns and offices of the petitioners are alleged to have been located within the town of Cuttack and it is contended that by operation of the ban contained in the notification, they are not in a position to come to their respective godowns and offices and their business is in ieopardy. It is also contended that by prohibiting their vehicles from getting into the town their business is adversely affected. Challenge is offered on the footing that the provisions of Section 74 of the Motor Vehicles Act which is the ultimate basis of the order is liable to be struck down for having conferred naked, arbitrary and unguided power on the Executive Authority of the State. The notification is branded as discriminatory, purposeless and mala fide. It is contended that in giving effect to the notification the fundamental rights of the petitioners as guaranteed under Article 19 (1) (g) of the Constitution are curtailed and interfered with. The restriction imposed by the notification is not reasonable, nor is it in the interests of the general public. 2. During hearing of this writ application the learned Additional Government advocate appearing for the opposite parties disputed the maintainability of the petition and challenged the rights of the managers of the different transport organisations who claim protection on the basis of fundamental right to carry on business which is available to citizens only. He further contended that in view of the Proclamation of Emergency under Article 352 of the Constitution which is still in operation the provision of Article 19 of the Constitution stands suspended and the impugned action cannot be challenged on such score. 3. There is considerable force in the contention of the learned Additional government Advocate in regard to the non-availability of the protection of Article 19 (1) (g) of the Constitution during operation of the Proclamation of Emergency. In view of the handicap with which the petitioners are beset, Mr. Mohanty, the learned counsel for the petitioners, wanted an adjournment of the hearing of the writ application to enable him to take instructions. It has now beenf brought to our notice by Mr. Mohanty that the petitioners have moved the State Government for rescinding the impugned notification and he states that in view of the restriction imposed under Article 358 of the Constitution the petitioners would be in a better position to ask for relief from the State Government than from the Court. The learned Additional Government Advocate challenges the maintainability of such a petition before the State Government in view of the authorisation made under rule 177 of the Orissa Motor Vehicles Rules by which the District Magistrate is delegated the powers under Section 74 of the Motor Vehicles Act to exercise within his jurisdiction. We are not called upon to decide whether such a petition before the State government is competent, but prima facie there is force in what Mr. Mohanty states. The learned Additional Government Advocate had cited before us a decision, during hearing of this case for some other purpose, reported in AIR 1971 sc 474. (C. Lingem v. Government of India) which supports the view that such a representation lies. Their Lordships of the Supreme Court have said: