Kesho Ram Passey, J. - (1.) THESE are five petitions by the Transport Companies noted on the margin, who for some time past have been carrying on the business of plying buses on hire on different outes in Pepsu with permits granted by the Tate Transport Authority Under Section 42(1), Motor Vehicles Act. All of them have prayed that exercise of the powers under Article 226 of the Constitution, this Court may issue a writ in the nature of mandamus or any other appropriate writ, direction or order, restraining the State Government from running their buses on the routes of their (Petitioners') business. The petitions raise identical questions of law and have similar facts forming their background.
(2.) IN October, 1954 the State Government, pursuant to their economic policy and in the interest of the general public decided to embark upon the business of motor transport and from January, 1986 put on the very routes on which the Petitioners' buses were plying, several buses with the label -'Pepsu Roadways' for carrying passengers on fixed rates of fares without having obtained any permit from the State Transport Authority. As some expenditure in connection with the new venture had to be incurred for which approval of the Legislature was necessary a supplementary demand for the amount needed was placed before the State Legislative Assembly in their Budget Sessions 1954 -55 and its assent was obtained. To regularize the expenditure the same course was adopted by the Government in the financial year 1955 -56 and the grant asked for was sanctioned by the Legislature. Each time the necessary Appropriation Act was passed and there can be little dispute that the expenditure had thus become authorized by law. Although the 'Pepsu Roadways' had been operating since January 1955, no motor trans port concern had any grouse to make till 15 -6 - 1953, when the Patiala Bus Service, Petitioner 1, submitted their present petition. Then follow ed the other four petitions and the last was made on 21 -6 -1955. Before narrating the grounds on which the petitions are founded, it is necessary to repeat here the provisions of Sub -section (1) and Sub -clause (3), Clause (a) of Section 42, Motor Vehicles Act 1939 (Act No. 4 of 1939), hereafter called the Act: Sub -section (1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a per met granted or counter -signed by a Regional or Provincial Transport Authority authorizing the use of the Vehicle in that place in the manner in which the vehicle is being used.... Sub -section (3) Sub -section (1) shall not apply: (a) to any transport vehicle owned by or on behalf of the Central Government or a Provincial Government other than a vehicle used in connection with the business of an Indian State Railway....
(3.) IT may be mentioned here that as things stand at present the Petitioners have not at all been prohibited from carrying on their business nor have their permits or the terms of those permits been in any way touched. The Petitioners do not say that it is their right to run the buses on the routes in question to the exclusion of the State or other private transport concerns nor have they acquired an indefeasible right to continue to make gains as heretofore and to exclude competition. They, however, have very grave apprehensions of their business inevitably collapsing as they would soon be eclipsed by the 'Pepsu Roadways' which has large resources making competition impossible. Their greatest fear is that in the name of competition and by this indirect method instead of the direct one by legislation to which if introduced there may be opposition in the State Legislative Assembly itself, the Government would oust them by gradually but quickly giving effect to, their policy of nationalization of the Transport Industry in the State which policy they have not so far clearly pronounced but are cleverly and steadily implementing. They also state that if the Government wants to enter the field of Motor Transport business, it should like them be bound by the provisions of the Indian Motor Vehicles Act and of the rules framed there under. The State should apply for stage -carriage permits under Section 40 of the Act and when they do so the Regional Transport Authority, although a creature of the Government, will while dealing with those applications have to bear in mind the rules of procedure laid down in Section 47 etc. While stressing on obvious inequalities between them and the State they refer to the alleged discrimination created by Sub -clause (3), Clause (a) of Section 42 of the Act, dispensing with, in the case of the State, the necessity of taking out permits, as required by Sub -section (1). The petition - biers, therefore, seek to invoke certain provisions of the Constitution of India to their aid and raise the following objections against the State taking to business or trade and in particular to their running stags -coaches: (a) That since the buses of the Government are being used in connection with the business of the Railway, the Government must obtain permits for running them as even Sub -section (3) of Section 42 of the Act does not dispense with the obtaining of permits under Sub -section (1) where buses are run by the Government in connection with the business of the Indian State Railway. (b) That the State is not entitled to carry on the business of plying motor vehicles for hire on commercial basis as the business is not incidental to its ordinary -functions. (c) That the State cannot do transport business on commercial basis without legislative sanction. (d) That the running of parallel buses by the State on the very routes for which the Petitioners hold permits is not only gravely injurious to the Petitioners' business but interferes with their right to carry on that business which right is guaranteed by Article 19, Clause (I) Sub -clause (g), and that it also attacks and violates their right to hold property and causes deprivation of their property in contravention of Article 31 of the Constitution. (e) That the provisions of Sub -section (3). Clause (a) of Section 42 of the Act are ultra vires of the Constitution as they constitute an arbitrary discrimination in favour of the State and offend Article 14 of the Constitution and are consequently in the light of Article 13 of the Constitution void.;