R.M. Sahai, J. - (1.) EXISTING operators and permit -holders of non -nationalised routes, of nearly entire State, have assailed validity of Clauses 1 to 3 of the notification issued on 25th March, 1987 under section 43A of Motor Vehicles Act. Relevant Clauses of the notification which are under attack are extracted below: whereas in exercise of the powers under sub -section (2) of section 43A of the Motor Vehicles Act, 1939 (Act No. IV of 1939) as inserted by the Motor Vehicles (U.P. Amendment) Act, 1972 (U.P. Act No. 25 of 1972), the State Government had by notification No. 3341 -I/XXX -4 -178 -K -M -75 dated December 15, 1978 issued directions to the State Transport Authority and Regional Transport Authorities in respect of consideration of applications for stage carriage permits in the State: And whereas certain difficulties were experienced in the implementation of the said directions on account of which the aforesaid notification was rescinded by notification 4099 I -XXX -4 -I -K.M. -80 dated September 4, 1980; Now, therefore, in exercise of the powers conferred by sub -section (2) of section 43A of the said Act read with section 21 of the General Clauses Act 1904 (U.P. Act No. I of 1904) the Governor is pleased to direct; (1) that taking into consideration the increase of population, trade, transit of goods and Government work the number of stage carriage permits on any non -nationalised route where there has been no increase in such permits for more than five years, shall be increased by 100 per cent and where there has been no increase in such permits for more than two years shall be increased by 30 percent and where there has been no increase during a period of more than one and less than two years, shall be increased by 20 percent. (2) That the State Transport Authority and Regional Transport Authorities shall grant stage carriage permits to the various categories to the applicants in accordance with the quota shown below against each category; i. Members of Scheduled Caste - - - - - - - - - -18% ii. Members of Scheduled Tribes - - - - - - - - - - - -2% iii. Members of Backward Class - - - - - - - - - - - - - -15% iv. Ex -Army Personnel preferably Drivers Freedom Fighter or their dependants - - - - -15% V. Other persons - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -50% Provided that in all the categories mentioned above preference shall be given to persons who were registered owners of vehicles lying title on the date of this notification as well as on the date of consideration of their applications by the State Transport Authorities, or regional Transport Authorities excluding such operators as have been granted compensation or alternative routes as a result of any nationalisation scheme: Provided further that in all the categories, preference shall be given to operators displaced due to nationalisation of routes over other applications; (3) That it will be also ensured that not more than one permit is issued to the members of one family. ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... Definitions (1) "Family", in relation to a person, means the person covered, his wife or husband, as the case may be, and their minor children, (2) "Dependent of Freedom fighter" means the wife or the widow as the case will be unmarried daughters, dependant parents, minor sons and unmarried dependant sisters. Taking up clause (1) it attempts to increase strength of vehicles on routes if there has been no increase in last few years etc. On assumption of population rise and increase in - trade. Could it be done by State Government in purported exercise of power under section 43 -A substituted by U.P. Act 25 of 1976 Sub -section (1) of it reads as under: (I) The State Government may issue such directions of a general character as it may consider necessary or expedient in the public interest in respect of any matter relating to road transport to the State Transport Authority or to any Regional Transport Authority, and such Regional Transport Authority shall give effect to all such directions. The expression, such directions of a general character as it may consider necessary or expedient in the public interest in respect of any matter, relating to road transport/used in sub -section (1) spelling out power of State Government, had come up for consideration in B. Rajagopala v. State Transport Appellate Tribunal : AIR 1964 SC 1573, under Madras Act and it was held, Therefore, it seems to us that on a fair and reasonable constructions of section 43 -A, it ought to be held that the said section authorised the State Government to issue orders and directions of a general character only in respect of administrative matters which fall to be dealt with by the State Transport Authority or Regional Transport Authority, under the relevant provisions of the Act in their administrative capacity.
(2.) THE amended section 43 -A by the State itself came up for consideration in Rameshwar Prasad v. State of U.P. : A.I.R. 1983 SC 3831983 (9) : ALR 77 (Sam.), The Hon'ble Court noticed the legislative history of the amendment and the mischief attempted to remedy. It struck down the notification directing' Regional Transport Authorities to grant, permit to all eligible applicants as the State Government while issuing the notification ignored the legislative policy underlying U.P. Act No. 15 of 1976 and the new policy introduced by Parliament of issuing permits by amending section 47 of the Act. The Hon'ble Court observed that the amended sub -section (2) of section 43 -A was clear manifestation of legislative policy against granting permits without any consideration to the needs of any particular locality or route or to the qualification of applicants. It was held, What does section 43 -A(1) after all say? It says that the State Government may issue such direction of a general character as it may consider necessary in the public interest. What is the meaning of the term public interest? In the context of the Act it takes within its fold several factors such as, the maximum number of permits that may be issued on a route or in any area having regard to the needs and convenience of the travelling public, the non -availability of sufficient number of stage carriage -services in other routes or area which may be in need of running of additional services, the problems of law and order, availability of fuel, problems arising out of atmospheric pollution caused by a large number of motor vehicles operating in any route or area, the condition of roads and bridges on the routes, uneconomic running of stage carriage services leading to elimination of small operators and employment of more capital than necessary in any sector leading to starvation of capital investment in other sectors etc. Public interest under the Act does not mean the interest of the operators or of the passengers only. We have to bear in mind that like every other economic activity the running of stage carriage service is an activity which involves use of scarce or limited productive resources. Motor Transport involves a huge capital investment on motor vehicles, training of competent drivers, and mechanics, establishment of workshops, construction of safe roads and bridges, deployment of sufficient number of policemen to preserve law and order and several other matters. To say that larger the number of stage carriages in any route or area more convenient it would be to the members of the public is an over simplification of a problem with myriad facts affecting the general public. Does the impugned notification satisfy the test laid down by the Hon'ble Court? The answer has to be in negative. In Rameshwar Prasad's case the notification directing grant of permits to all eligible applicants, issued in 1981 was struck down. The same infirmity applies to Clause 1 of the impugned notification. It cannot be resultant of objective consideration of factors which have been detailed by the Hon'ble Court to reflect public interest. Such a decision of Government is violative of section 47 of the Act which enumerates the factors which should be taken into account by Regional Transport Authority while considering an application for a stage carriage permit. The grant of permit is a quasi judicial function. The exercise of power is liable to be questioned by way of appeal. All this is done away with and what was avoided by the legislature has been attempted to be achieved through exercise of delegated power. In B. Rajgopala's case it was held that any notification issued under garb of orders or directions of a general character could not be sustained if it purported to interfere with, quasi judicial function. It was held, But what the law and provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders.
(3.) EVEN otherwise the power in relation to road transport can be exercised by the authorities including State Government in public interest it is on this touch stone that the orders passed by Transport Authority or the Appellate Tribunal are upheld or set aside. What may be good or better for one region may not be the same for other. Similarly the conditions of road, the trading activity, the convenience of public etc may differ from city, village to village city and village. The passage of time cannot by itself be a relevant factor to determine the strength. The assumptions made in the counter -affidavit and it is stated that comparative study of availability of stage carriage busses" on various routes in the state per one lac of people as against other States was much less which encouraged illegal plying. It is also stated that experience proved that various regional Transport Authorities were not in a position to assess the actual need of the travelling public for want of necessary means required for the purpose To provide more buses to case the traffic for convenience of public is a laudable objective. But the procedure for it should be within frame work of law, which cannot be thrown overboard because the machinery to check illegal plying is inefficient or ineffective. Nor can the frustration expressed due to defective reports received by Regional Transport Authorities could entitle the Government to ignore law and assume facts without sufficient material to increase the strength not on necessity but because of apprehension of illegal plying or better facility in other States or incapability of Regional Transport Authorities to get proper reports. For these reasons clause (1) of the notification is liable to be struck down.;