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The ]earned Judges say that even if these facts are believed, they only establish that Paramessh warappa canvassed for the petitioner but that would not amount to respondent No. 1 's taking assistance from him. Ratio |
This does not seem to us to be a proper view to take. Ratio |
There was allegation by the appellant of the respondent No. 1 's taking assistance from a Government servant within the meaning of section 123(8) of the Act. Ratio |
In proof of the allegation evidence was given of the facts mentioned above. Ratio |
If from these facts, which were found to be true, the Tribunal drew the conclusion that there )lad been an assistance taken from a Government 266 servant which would come within the purview of section 123(8) of the Act, it is impossible to say that this is an error apparent on the face of the record. Ratio |
The remaining finding relates to the allegation of the petitioner that the respondent No. 1 in his return of election expenses omitted to include several items and if they had been taken into account the election expenses would have exceeded the sanctioned limit. Ratio |
The Tribunal has held that the respondent No. 1 omitted to include, in his return of expenses, the petrol charges, the hiring charges in respect of some cars and vans hired by him and also the dinner expenses incurred in the hotels. Ratio |
The High Court has observed that as regards the first item the finding of the Tribunal is based on no evidence and rests on mere speculation. Ratio |
We do not think that we can accept this view as correct. Ratio |
The first respondent stated that he had used two cars which were his own and incurred petrol expenses to the extent of Rs. 1,083 3 0. Ratio |
The Tribunal has found in paragraph 29 of its order on the basis of both documentary and oral evidence that the respondent No. I had used six other cars and had purchased petrol for them for the purpose of his election campaign. Ratio |
The Tribunal held that the first respondent must have spent not less than the sum of Rs. 1,250 on this account which was not included in the list of expenses. Ratio |
We are unable to say that this finding rests on no evidence. Ratio |
As regards the omission to include hiring charges the High Court has observed that the Tribunal did not record any finding that such hiring was proved. Ratio |
The Tribunal has in fact found that as regards some cars they were hired, while others had been taken on loan, the money value for their use having been paid by the first respondent which is tantamount to saying that he had to pay the hiring charges. Ratio |
The matter has been dealt with in paragraph 29(d) of the Tribunal 's order and the entire evidence has been gone through. Ratio |
We are unable to say that the finding of the Tribunal that the respondent No. 1 had omitted to include in his return of election expenses the dinner and hotel charges is a finding unsupported by any evidence. Ratio |
Reference may be made in this connection to paragraph 29(f) of the 267 Tribunal 's order which deals with the matter in detail. Ratio |
On the whole our opinion is that the so called apparent errors pointed out by the High Court are neither errors of law nor do they appear on the face of the record. Ratio |
An appellate Court might have on a review of this evidence come to a different conclusion but these are not matters which would justify the issue of a writ of certiorari. Ratio |
In our opinion the judgment of the High Court cannot be supported and this appeal must be allowed. Ratio |
The writ issued by the High Court will therefore be vacated. RPC |
We make no order as to costs of this appeal. RPC |
Appeal allowed. RPC |
Appeals Nos. 182 and 183 of 1954. FAC |
Appeals under article 132(1) of the Constitution of India from the Judgment and Order, dated the 17th November, 1953, of the High Court of Judicature at Allahabad in Civil Miscellaneous Writ No. 414 of 1953, connected with Civil Miscellaneous Writs Nos. 537, 579 to 582, 587 to 595, 597 to 603, 617 to 620, 622, 623, 626... |
G. section Pathak (V. D. Bhargava and Naunit Lal, with him) for the appellants. FAC |
K. L. Misra, Advocate General for the State of U.P., and Jagdish Swarup (J. K. Srivastva and C. P. Lal, with them) for the respondents. FAC |
October 13. FAC |
The Judgment of the Court was delivered by MUKHERJEA J. FAC |
The appellant in these two analogous appeals, along with many others, have been carrying on the business of plying motor vehicles, as ,stage carriages ' on hire, on the Bulandshabr Delhi route from a number of years past. FAC |
The running of these vehicles has been regulated so long by the Motor Vehicles Act of 1939 which provides, inter alia, for granting of driving licences, the registration of vehicles and exercising control over transport vehicles through permits granted by Regional Transport Authorities. FAC |
Section 42(3) of the Act exempts transport vehicles, owned by or on behalf of the Central Government or the Provincial Government from the necessity of obtaining permits unless the vehicles were used in connection Path the business of an Indian State Railway. FAC |
It appears, that some time after 1947 the Government of U. P. conceived the idea of running their own buses on the public thoroughfares. FAC |
They first started running buses only as competitors with the private operators but later on they decided to exclude all private bus owners from the field and establish a complete State monopoly in respect to the road transport business. FAC |
They sought to achieve this object by 711 calling in aid the provisions of the Motor Vehicles Act itself. FAC |
Under section 42(3) of the Act as mentioned above, the Government had not to obtain permits for their own vehicles and they could run any number of buses as they liked without the necessity of taking out permits for them. FAC |
The Transport Authorities, in furtherance of this State policy, began cancelling the permits already issued to private operators and refusing permits to people who would otherwise have been entitled to them. FAC |
Upon this, a number of private bus owners filed petitions in the Allahabad High Court under article 226 of the Constitution praying for appropriate relief, by way of writs, against what was described as the illegal use of the provisions of the Motor Vehicles Act by the Government of U. P. FAC |
These petitions were heard by a Full Bench of five Judges and four judgments were delivered dealing with various questions that were raised by the parties. FAC |
A majority of the judges expressed the opinion that the State, purporting to act under section 42(3) of the Motor Vehicles Act, could not 'discriminate against other persons in their own favour and that the sub section, in so far as it purports to exempt State Transport buses from the obligation to obtain permits for t... |
All the judges concurred in holding that nationalisation of an industry was not possible by a mere executive order without appropriate legislation and such legislation would probably have to be justified under article 19(6) of the Constitution. Ratio |
As a result of this decision the Transport Authorities were directed to deal with the applications for permits, made by the various private bus owners, in accordance with the provisions of the Motor Vehicles Act, without in any way being influenced by the consideration that the State Government wanted to run buses of t... |
In view of this pronouncement of law, the State Government, which wanted to have the exclusive right to operate Road Transport Services within its territory, sought the assistance of the Legislature and the U. P. Road Transport Act (Act II of 1951) was passed and 712 became law on and from the 10th of February, 1951. F... |
It is the constitutional validity of this enactment which is the subject matter of contest in these present proceedings. FAC |
The preamble to the Road Transport Act (hereinafter called "The Act") says: "Whereas it is expedient in the interest of the general public and for the promotion of the suitable and efficient road transport to provide for a State Road Transport Services in Uttar Pradesh, it is enacted as follows. STA |
" Section 2 gives definitions of certain terms, while section 3, which is the most material section in the Act, embodies virtually its whole purpose. STA |
It provides that where the State Government is satisfied that it is necessary, in the interest of general public and for sub serving the common good, so to direct, it may declare that the Road Transport Services in general, or any particular class of such service on any route or portion thereof, shall be 'run and opera... |
Section 4 provides for publication of a scheme framed in accordance with the above declaration and objections to such scheme can be made by interested persons in the manner laid down in section 5.As soon as the scheme is finalised, certain consequences follow which are detailed in section 7. STA |
So long as the scheme continues in force, the State Government shall have the exclusive right to operate Road Transport Services, or if the scheme so provides, a certain fixed number of transport vehicles belonging to others can also be run on those roads. STA |
The State Government shall be authorised in all such cases to direct the dispensation of the State Transport vehicles from the necessity of taking out permits, or to cancel, alter or modify any existing permits or to add any fresh condition to any permit in respect of any transport vehicle. STA |
The remaining portion of the Act purports to lay down how the provisions of the Act are to be worked out and implemented. Ratio |
Sections 8 and 9 provide respectively for the appointment of a Transport Commission and Advisory Committees. STA |
Under section 10 the State Government may delegate its powers under the Act to an officer or authority subordinate to it. STA |
Section 12 makes it an offence for any person to drive a public service vehicle or allow such vehicle to be used in contravention of the provisions of section 7. STA |
It is not necessary to refer to the provisions of the remaining sections as they are not material for our present purpose. Ratio |
By a notification dated the 25th of March, 1953, the U. P. Government published a declaration in terms of section 3 of the Act, to the effect, that the State carriage services, among others, on the Bulandshar Delhi route, shall be run and operated exclusively by the State Government. FAC |
A further notification issued on the 7th of April following set out what purported to be a scheme for the operation of the State carriage services on these routes. FAC |
Thereupon the two appel lants as well as several other private bus owners numbering 106 in all, who plied transport buses on these routes, presented petitions under article 226 of the Constitution before the High Court at Allahabad praying for writs, in the nature of mandamus, directing the U. P. Government and the Sta... |
The constitutional validity of the Act was challenged on a number of grounds, the principal contentions being: (1)that the Act was discriminatory in its character and contravened the provisions of article 14 of the Constitution; (2)that it conflicted with the fundamental rights of the petitioners guaranteed under artic... |
It was further argued that the Act violated the guarantee of freedom of inter State and intra state trade embodied in article 301 of the Constitution. FAC |
All these writ petitions were heard by a Division Bench of the High Court consisting of Mukherji and Chaturvedi JJ. FAC |
By two separate but concurring judgments dated the 17th of November, 1953, the learned Judges repelled all the contentions of the petitioners and dismissed the writ petitions. RLC |
It is against this decision that these two appeals have come up to this Court on the strength of certificates granted by the High Court and Mr. Gopal Swarup Pathak appearing in support of the appeals has reiterated practically all the grounds which were urged on behalf of his clients in the Court below. FAC |
We will take up these points in proper order and it will be convenient first of all to address ourselves to the two allied questions, viz., whether the appellants could claim any fundamental right under article 19(1)(g) of the Constitution which can be said to have been violated by the impugned legislation, and whether... |
The appellants in the present cases were carrying on the business of plying buses on hire on a public highway until now and the Act which prevents them from pursuing that trade or business conflicts therefore with the fundamental right guaranteed under article 19(1)(g) of the Constitution. Ratio |
It is said also that this beneficial interest of the appellants in the commercial undertaking is 'property ' within the meaning of article 31(2) of the Constitution and as the Act does not conform to the requirements of that article, it must be held to be void. Ratio |
Mr. Pathak put forward another and a somewhat novel argument that the right of the appellants to use a public highway for purposes of trade is in the nature of an easement and as such can be reckoned as property 715 in law; consequently there has been a deprivation of property by the impugned legislation in this sense ... |
This contention seems to us to be untenable and it was rightly abandoned by the learned counsel. Ratio |
The Advocate General appearing for the State of 'U. P. did not and could not dispute that a right to pursue any trade, business or occupation of one 's choice is guaranteed by the Constitution. Ratio |
He says however that this does not mean that a citizen can carry on his trade or business anywhere he likes and such right is also guaranteed by the Constitution. ARG |
He must have a legal right to use a particular place for purposes of his trade or business, before he can resist any encroachment upon it on the strength of the constitutional guarantee. ARG |
His argument in substance is, that the bus owners, as members of the public, have no legal right to ply buses on hire on any public road. Ratio |
The only right which a member of the public can assert in respect of a highway is the right of passing and repassing over it. Ratio |
The State in which all public ways vest under the law has the sole right to determine whether it would allow any citizen to carry on a trade or business upon a public highway and if so, to what extent. Ratio |
The citizen has no inherent right in this respect apart from any State sanction. Ratio |
The position, therefore is, that the rights of the appellants, as indeed those of the other bus owners, are created entirely by State legislation and by State legislation they could be deprived of the same. Ratio |
There is no question of any conflict with the fundamental right guaranteed under article 19(1)(g) of the Constitution in such cases. Ratio |
The argument requires careful consideration. Ratio |
It is not disputed that the Bulandshahr Delhi route is a part of the Grand Trunk Road which is a public highway. Ratio |
According to English law, which has been applied all along in India, a highway has its origin, apart from statute, in dedication, either express or implied, by the owner of land of a right of passage over it to the public and the acceptance of that right by the public (1). Ratio |
In the large majority of cases this dedication is presumed from long and uninterrupted (1) Vide Pratt & Mackenzie on Law of Highways, 19th edn.p. 13.716 user of a way by the public, and the presumption in such cases is so strong as to dispense with all enquiry into the actual intention of the owner of the soil and it i... |
The fact that the members of the public have a right of passing and repassing over a highway does not mean however that all highways could be legitimately used as foot passages only and that any other user is possible only with the permission or sufferance of the State. Ratio |
It is from the nature of the user that the extent of the right of passage has to be inferred and the settled principle is that the right extends to all forms of traffic which have been usual and accustomed and also to all which are reasonably similar and incidental thereto ( 2). Ratio |
The law has thus been stated in Halsbury 's Laws of England(1): "Where a highway originates in an inferred dedication, it is a question of fact what kind of traffic it was so dedicated for, having regard to the character of the way and the nature of the user prior to the date at which they infer dedication; and a right... |
" There can be no dispute that the Grand Trunk Road which, as a public highway, has been in existence since the 15th Century A. D. has been used for all sorts of vehicular traffic that were in vogue at different times. Ratio |
Motor vehicles were certainly not known when the road came into existence but the use of motor vehicles in modern times as means of locomotion and transport could not, on the principle stated above, amount to an unwarrantable extension of the accustomed user to which the highway is subjected. Ratio |
If there is any danger to the road by reason of such user, or if such user by one interferes with the user by others, it is up to the State to regulate the motor traffic or reduce the number or weigh of vehicles on the road in any way it likes, and to that no objection can possibly be taken. Ratio |
But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. Ratio |
The right exists anterior to any legislation on this subject as an incident of public rights over a highway. Ratio |
The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Ratio |
Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. Ratio |
The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned AdvocateGeneral that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State. Ratio |
The learned Advocate General in support of his contention has referred us to a few American cases on the point. ARG |
In the case of Packard vs Banton(1), Sutherland J. observed as follows: " The streets belong to the public and are primarily for the use of the public in the ordinary way. ARG |
Their use for purposes of gain is special and extraordinary and generally at least may be prohibited or conditioned as the Legislature deems proper. ARG |
" This decision was approved in Frost vs Railroad Commission(1), and again in Stephenson vs Binford(3), where Sutherland J. practically reiterated his observations in the previous case as follows: " It is a well established law that the highways of the State are public property; that their primary and preferred use is ... |
We do not think that this is the law of India under our Constitution. Ratio |
The cases referred to above were noticed by the Allahabad High Court in the Full Bench decision of Motilal vs Uttar Pradesh Government(1), and two of the learned Judges constituting the Full Bench expressed their opinion that this 'doctrine of exceptional user ' might have been evolved by the American Courts in the sam... |
This identical point was investigated with considerable thoroughness in a recent decision of the Madras High Court in C. section section Motor Service vs State of Madras(2), and it was pointed out by Venkatarama Ayyar J. who delivered the judgment of the Court, that the rule of special or extraordinary use of highways ... |
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