Kerala High Court
Udyogamandal C.P. Council vs State Of Kerala on 30 August, 1991
Equivalent citations: II(1991)ACC638
JUDGMENT Padmanabhan, J.
1. In exercise of the powers conferred under Section 67 of the Motor Vehicles Act, by notification dated 2.11.1990, the Kerala Government enhanced the ordinary bus fare to 14 paise per kilometre. Due to the consequent public agitation, by another notification dated 15.11.1990 it was reduced from 14 paise to 13 paise per kilometre. All these O.Ps except O.P. 11357 of 1990 were filed challenging the enhancement. In G.P. 11357 of 1990 filed by the Kerala State Private Bus Operations' Federation, the challenge is against the reduction from 14 paise to 13 paise. All these O.Ps were heard together. At the time of arguments, the petitioners in O.P. 11357 limited his request to a direction for consideration of the representation. The other petitioners confined their claim to a direction to appoint an expert committee to go into the question of bus fare.
2. The main grievance of the petitioners (by petitioners, I mean petitioners other than the petitioner in O.P. 11357) is that the draft of the proposed directions was not published in the gazette calling for objections and suggestions as enjoined by the proviso to Section 67(1) of the Motor Vehicles Act. The proviso says:
Provided that no such notification in respect of the matters referred to in clause (ii) and clause (iii) shall be issued unless a draft of the proposed directions is published in the Official Gazette specifying therein a date being not less than one month after such publication, on or after which the draft will be taken into consideration and any objection or suggestion which may be received has, in consultation with the State Transport Authority, been considered after giving the representatives of the interests affected an opportunity of being heard.
3. The first contention of the petitioners was that this provision was not complied with. But it has to be noted that the said proviso is applicable only to Clauses (ii) and (iii) of Sub-section (1) of Section 67. We are concerned only with clause (1) of the Sub-section (1) which says that having regard to certain matters the State Government may from time to time by notification in the Official Gazette issue direction both to the State Transport Authority and Regional Transport Authority regarding the fixing of fares and freights for stage carriages, contract carriages and goods carriages. The formalities provided by the proviso are not applicable while discharging this function.
4. When confronted with that position, the learned Counsel for the petitioners wanted to retrace his step and argue that Section 67(1) is unconstitutional. I was not in any way persuaded by that argument. There is absolutely nothing unconstitutional in that provision.
5. On 23.5.1988 there was an earlier notification fixing the rate at 10.5 paise per kilometre. That was the subject-matter of challenging in O.P. 4182 of 1988. It was referred to a Division Bench which rendered the decision on 1.6.1988 holding that fare fixation is not the function of the Court. That decision followed certain Supreme Court decisions including P. Nalla Thampy v. Union of India (l983) 4 SCC 598 and Kerala State Electricity Board v. Sri. Govinda Prabhu and Bros. (1964) 4 SCC 198.
6. In S. Narayan v. Union of India the Supreme Court said that the telephone tariff rates are decided as policy matters in fiscal planning and Court have no jurisdiction under Article 226 to go into its reasonableness. By parity of reasoning that principle could very well be applied to the facts of fare fixation also. In the case of exercise of judicial or quasi-judicial function the very nature of the function involves application of the principles of natural justice. That may also be the case with an administrative function affecting the rights of individuals and therefore there is the duty to act fairly. But in the case of legislative activity in making a legislative instrument just like a declaration by a notification by the government upon which certain statutory provisions spring into action and certain consequences prescribed in the statute follow, such a formality may not be necessary unless it is so prescribed by the statutory provisions. The making of the declaration or notification is an act of legislative character and it does not oblige the observance of the rules of natural justice as held in R.K. Porwal v. State of Maharashtra .
7. Fixing fare stages for stage carriages under Rule 211 of the Motor Vehicles Rules is the duty of the State or the Regional Transport Authority after making due enquiries. One of the complaints of the petitioners in that fixation of fare stages is also not proper. A Division Bench of this Court in Karthikeyan v. R.TA. Trichur 1965 KLT1186 following the decision in B. Rajagopala Naidu v. The State Transport Appellate Tribunal, Madras held that it is an administrative and not a quasi-judicial function and therefore is not liable to be corrected by this Court under Article 220. This Court can intervene to compel the State to carry out its constitutional and legal functions. But at the same time, this court cannot assume the functions assigned to the execution and legislature under the Constitution as pointed out in State of H.P. v. Parent of a Student . I said so because one of the prayers is that the State and its officers may be, directed to set up an expert committee to consider the ways and means for implementing any change in the bus fare or fare stages. This Court cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law making activities of the executive and the legislature. When the State, having regard to all the aspects made mention of in Section 67, issued a notification fixing fares and that too after due enquiries after appointing an expert committee also, I do not think that there is any scope for this Court to interfere in exercise of the powers under Article 226.
8. Section 67 of the Motor Vehicles Act obliges the Government to fix fares and freights having regard to certain factors.
9. The expression "have regard to" only obliges the Government to consider as relevant data, and materials to which it must have regard. There is no obligation cast on the Government to make any adjustment to compensate any loss or other aspects. It cannot therefore give rise to any complaint that principles of natural justice were not followed as observed in S.I. Syndicate Ltd. v. Union of India .
10. The learned Counsel took me to the latest decision of the Supreme Court in Shri Sitaram Sugar Co. Ltd. v. Union of India which said:
Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the "feel of the expert" by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided that such findings satisfy the test of reasonableness. In all such cases, judicial enquiry is confined to the question whether the findings of fact was reasonably based on evidence and whether such findings are considered with the laws of the land.
11. In the light of these legal principles, I do not think that there is any scope for granting any reliefs in O.P. Nos. 10660, 10425, 11580, 11216, 10495, 10271 and 10272/90 and 330 of 1989 other than O.P. 11357 of 1990.
12. As earlier stated, even though there were many prayers included in the O.P. at the time of arguments, the counsel confined his request to a direction to the State that Ext. P2 representation may be considered and appropriate orders passed.
13. O.P. No. 330 of 1989 stands on a different footing. It is concerning anomalies in the matter of fixation of fare stages. But those prayers have now become in fructuous and the O.P. has only to be dismissed.
14. All the original petitions except O.P. 11357 of 1990 are dismissed. O.P. 11357 is disposed of with a direction to the respondent that Ext. P2 representation put in by the petitioner may be considered on the merits and appropriate orders passed as expeditiously as possible.
15. Issue photocopy.