A. SANJEEVI NAIDU ETC. ETC. versus STATE OF MADRAS AND ANR.

A. SANJEEVI NAIDU ETC. ETC.

STATE OF MADRAS AND ANR.

February 5, 1970

[M. HIDAYATULLAH, C.J., J, C. SHAH, K. S. HEGDE,A. N. GROVER, A. N. RAY AND I. D. DUA, JJ.)

Motor Vehicles Act 4 of 1939, s. 68(c)-Validit~ of schen1e fra1ned upon for11u1tion of requisite opinion hy Secretary and not Minisfr'r. Rule 23-A authoriJi11g Secretary-Vulidity of- -Constitution af India, Art. 166(3 )-Scope of.

draft scheme for the nationalisation of certain transport routes was prepared and published by the respondent State Government under Sec-tion 68(() of the Motor Vehicles Act 4 o[ 1939. The validity of the ~chcmc was challcn¥ed hy the appellants. who \Vere private stage carriage operators, in petition under Article 226 of the Constitution but the peti-tion \Vas dismissed hy the High Court. In appeal to this Court the validity of the scheme was mainly challeng-ed on the ground that the opinion requisite under Section 68(C) \\·as not formed by the State Government but by the Secretary to the Go\·ernment acting pursuant to powers conferred on him under Rule .23-A 0f the Madras Government Businc-ss Rule. It was further contended that the ~aid rule was ultra vires the provisions of the Constitution: Parlian1ent has conferred power!'! under Section 68-C to designated authori:y and that power can be exercised only by the authority specified and no one else. 'fhe authority concerned in the present case was the State Government and it coul<l not have delegated i's statutory 'functions to any one else. By Government \Vas meant the Governor aided and advised by his ~iinis­ters. The requisite opinion should therefore have been formed hy the Minister to \\'horn the husincs-; had heen allocated unde·r the Rules.

HELD : The function.; under the Motor Vehicles Act had been allocat-C'd by the Governor to the Transport Minister under the Rules and the Secretary of that Ministry had been v;:•lidly authorised under Rule .23-A lo take action under s. 68(C) of the Act.

In the very nature of things, neither the Council of Minh.ters nor an individual Minister can attend to the numerous matters that come up be-fore the Government. Those matters have to be attended to and deci-sions taken by various officials at various levels. When those officials dis-charge the functions allotted to them. they are doing so as limbs o'f the Government and not as persons to whom the power of the Govern-ment had been delegated. [513 G]

·Under our Cons!itution. the Governor is essentially constitutional head; the administration of the State is run by the Council of Ministers. In order to ohviate the difficulty that would arise if the Council of ~inisters had to deal with everv ma'.ter, the Constitution has authorised the Gover-nor under sub-article ·(3) of the Article 166 to make rules for th'! more convenient transaction di the business of the Govenment .of the State and for the allocation amongst its Ministers of the business of Government. All matter-; excepting those in which the Governor is required to act in his discretion have to he allocated to one or the other of the Ministers 'on

the advice cf the Chief Minister. Apart from allocating business among the Minister", the Governor can also make rules on the advice of his Coun-cil of Ministers for more convenient transaction of business. He can not only allocate the various subjects amongst the Ministers but may $0 further and on the advice of his Ministe·rs, designate particular official to dis-charge any particular function. [5 l l FJ

The cab.inet is responsible to the 'Legislature for every action taken in any O[ the Ministries. This is the essence of joint responsibility, That does not nu:an that each and every decision must be taken by the cabinet. T~e political responsibility of the Council of Ministers does not and cannot predicate th•:: personal responsibility of the Ministers to discharge all or any of the functions of the Government. Similarly an individual Minister is responsible to the Legislature for every action taken or omitted to be taken in his rnini~;try. This again is political responsibility and not personal rcsponsihility. In every well-planned administration. most of the decisions are taken by the civil servants who are likely to be experts and not sub-ject to polilical prc~surc. The Minister is not expected to hurden himself with the J.ay-to-Jay 1.1dministration. His prin1ary function is to Jay down the policies and programmes of his ministry while the Council of Ministers settle th~ rnajor prtlicics and programmes of the Government. [512 A]

E1npc·ror v. Sih1u11!1 Banerjee & Ors. L.R. 72 I.A. p. 241; Kalyan Sinnli v. Swte of U.P. [1962] Supp. 2 S.C.R. 76; lshwarlal Girdhar· /al Josfii ,., State of Gujarat and anr .. I 1968] 2 S.C.R. 266; Ca11ital Multi-pflrpose ('c1opc•rarire Snciety v. Stntt• of Madhya Pradesh and Ors. Civil Appeal N,1. 220111966 decided on 30-3-1967; referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 397, 400 to 402, 404 to 417. 422 to 441, 451, 1158 to 1161, 1176, 1178 lo 1181, 1204, 1207 and 1407 of 1969.

App,~als from the judgments and orders dated January 6, 1969 O·'. the Mr.dras High Court in Writ petitions Nos. 846 of 1968 etc.

K. K. Veuugopa/, K. R. Nambiar and A. S. Nambiar, for the appellants (in C.As. Nos. 397. 400 to 402, 422, 423, 441and451 of 1969 i.

M. C. Chagla, V. Subraman:am, V. T. Gopalan, Radharani, C. S. Prakasa Rao and K. Jayaram, for the appellants (in C.As. Nos. 404 to 417. 1179, 1180 of 1407 o~ 1969).

M. K. Ramamurthi, Shyilma/a Pappu and Vineet Kumar, for the appellant (in C.A. No. 1176 of 1969).

R. V. S. Mani. for the appellants (in C.As. Nos. 424 to 428, 1158 to 1161and1207of1969).

A. K. Sen, C. A. Prakasa Rao and R. Gopalakrish11a11, for the appellants (in C.As. Nos. 429, 431 to 438, 440, 441, 1178 and 1181of1969).

C. S. Prakasa Rao, A. R. Ramanathan and R. Gopa/akrishnan, . for the appellant (in C.A. No. 430 of 1969).

C. S. Prnkasa Rao, R. Gopalakrishna11 and Sudhir Khanna, for· the appellant (in C.A. No. 439 of 1969).

C. S. PN1kasa Rao, K. K. Venugopa/ and R. Gopalakrishnan,. for the appellant (in C.A. No. 1204 of 1969).

Niren De, Attorney General for India and A. V. Rangam, for the respondents (in C.A. No. 397 of 1969).

S. V. Gupte and A. V. Rangam, for the respondents (in C.A. No. 400 of 1969).

A. V. Rangam, for the respondents '(in C.A. Nos. 401,. 402. 404 to 417, 422 to 441, 451, 1158 to 1161, 1176, 1178 to 1181, 1204, 1207 and 1407 of 1969).

The Judgment of the Court was delivered by

Hegde, J. These 52 appellants are private stage carriage operators in the State of Tamil Nadu. They have been operating in various routes in that ,State. Some of those routes are pro_posed to be nationalised. draft scheme of nationalisation has. been prepared and published under s. 68(C) of the Motor Vehicles Act (Central Act IV of 1939) (to be hereinafter referred to as 'the Act'). The validity of the draft scheme was challenged by the appellants before the High Court of Madras under Art. 226 of the Constitution. Incidentally the validity of some of the provisions of the ·amendin~ Act XVIII of 1968 (Madras Act) also came to be challen:;ed in thme petitions. division bench of the Madras High Court consistinJ! of Anantanarayanan C.J. and Natesan J. have dismi'ised those petitions. As against the decision cf the High Court these appeals have been brought on the strength of the :ertificates issued by the High Court.

In these appeals we are primarily concerned with the validity of the draft scheme under challenge. The ground on which it is challenged is that the opinion requisite under s. 68(Cl of the Act was not formed by the State Government but by the Secretary to the government in the Industrie', Labour and Housing Department. acting in pursuance of the powers conferred on him under rule 23(A) of the Madras Government Business Rules (to be here inafter referred to as 'the Rules'). The contention of the appel-lants is that the said rule is ultra vires the provisions the Consti-tution. There is no dispute that if the rule in question is valid. the challenge directed against the draft scheme must fail. The High Court has opined that that rule is valid rule. It is the correctness of that conclusion that is primarily in issue in these appeals.

Section 68 ( C) prescribes :

"Where any State transport undertaking is of opinion that for the purp:ise of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or par-tial of other persons or otherwise, the State transport undertaking may prepare scheme giv~ng particulars of the nature o~ the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct."This section requires that the State transport undertaking must form the opinion contemplated therein. In the State of Tamil Nadu, the Stale transport undertaking is .department of the State gove!·nment. Therefore the necessary opinion should have been formed by the State government. It was urged on behalf of the · appellants that under our constitutional set up, the requisite opininn could have been formed either by the Council of Ministers or the Minister to whom the business in question had been allocated under the 'Rules'. The s·ame could not have been formed by the Secretary ""ho is merely an official and that too by the Secretary who is not the head of the department to which the ,functions under the Act had been assigned. The contentions advanced on behalf of the appellants proceed thus : The executive power of the State vests in the Governor (Art. 154). In the exercise of that power he has to be aided and advised by the Council of Ministers with the Chief Minister at the head (Art. 163 ( 1)) but the Governor can make rules for more convenient transaction of the.business of the government of the State arid for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion, (Art. 166(3) ). Minister can only deal with the business that has been allocated to him by the Governor under 'the Rules'. He is not competent to deal with ·any other bustness. Motor Vehicles Act has been allocated to the Home Department. Mr. Karunanidhi, the Transport Minister was not in-charge of the Home Department. Therefore his department could not have dealt with ful)ctions arising under the Act. Further the Governor could 1not have allocated any business to Secretary. Hence in making rule 23 (A). the Governor exceeded the powers conferred on him under Art. 166(3).

On the other hand, it was urged on behalf of the State c.f Tamil Nadu that originally the functions under the Motor Vehicles Act had been allocated to the Home Department but when Mr. Anna-durai formed the D.M.K. government in Tamil Nadu in 1967, the Home Department as such was not allocated to any Minister. The various subjects included in that department were split up and distributed amongst the various Ministers. Transport was allocat-ed to Mr. Karunanidhi. Motor Vehicles Act as such was not allocated to any Minister. The department of Transport included functions under the Motor Vehicles Act as well. Ever since the D.M.K. ministry was formed, the functions under the Motor Vehi-cles Act were dealt with by the Transport ministry. At the instance of the Transport Minister, Mr. Karunanidhi, Governor framed rule 23(A) for the more convenient discharge cf the business. On behalf of the government, it was further urged that Art. 166 ( 3 I has two parts namely ( 1) rules for the more convenient transac-tion of the business of the government of the State and (2) rules relating to allocation of business of the State among the Ministers. It was said that after allocating the business oi the government among various Ministers, it was open to the Governor on the advice of the ministry to make rules for the convenient discharge of the business allocated. Rule 23(A) is one such rule made under Art. !66(3 ). Hence its validity is not open to question.The impugned rule 23 (A) was introduced for the first time l?y G.O.Ms. No. 2715 Public dated 22-12-67. Under sub-cl. (I) of that rule, it is provided that powers and functions which State transport undertaking may exercise under s. 68(C) of the Act shall be exercised and discharged on behalf of the State govern-ment by the Secretary to the Government of Madras in the Indus-tries, Labour and Housing Department. The rule .further provides that cases relating to such powers and functions of the State trans-F port undertaking under s. 68(C) need not be submitted to the Minister in-charge. Under sub-cl. (2) of that rule, the power' and functions of the State government under s. 68 (D) of the Act and the rules relating thereto are directed to be exercised and discharged by the Secretary to the government in the Home Depart-ment.

Rule 4 of 'the Rules' deals with __ allocation and disposal of busi-ness. It provides that the business of the Government shall be transacteci in the department' specified in the 1st Sch. and classified and distributed between those departments as laid down therein. Rule 5 says that Governor shall, on the advice of the Chief Minister allot the business of the government among the Ministers, assigning one or more departments to the charge of Minister but the proviso to that rule says that nothing in that rule shall prevent the assign-ing of one department to the charge of more than one Minister.

:Rule 6 pn:scribes that each department of the secretariat shall be .under Secretary who shall be the official head of the department. Under rul1~ 7, the Council of Ministers constituted under Art. 163 ( 1) is held collectively responsible for all the executive orders issued in the name of the Governor in accordance with rules, whe-ther such orders are authorised, by an individual Minister on matter pertaining to his portfolio or as result of the discussion at the meeting of the Council of Ministers. Rule 9 provides that without prejudice to the provisions of rule 7, the Minister in-charge of department shall be primarily responsible for the disposal of the business pertaining to his department. Section III of the "Rules" containing rules 21 to 30 deal with the departmental dis-posal of business. Rule 21 says that except as otherwise provided by any other rule cases shall ordinarily be disposed of by or under the authority of the Minister in-charge who may by means of standing orders give such directions as he may think fit for the disposal of cases in the department; copies of such standing orders shall be sent to the Governor and the Chief Minister. Rule 22 provides that each Minister shall by means of standing orders arrange with the secretary of the department what matters or class ef matters are to be brought to his personal notice; copies of such standing orders has to be sent to the Governor and the Chief Minister. Rule 23 prescribes that except as otherwise provided in the rules, all cases shall be submitted to the Minister in-charge by the secretary of the department to which they belong. Then comes rule 23(A) to which reference has already been made.

The first question that has to be decided is whether the func-tions nnder the Motor Vehicles Act had been assigned to Mr. Karunanidhi, the Minister for Transport. It is true that when the various d1ipartments were reorganized in 1961, Motor Vehicles Act as we![ as Transport were included in the Home Department. But when the D.M.K. ministry came to power after the 1967 general elections, the Home Department as such was not allocated to any Minister. The various subjects included in that department were distributed amongst several Ministers. Transport was allo-cated to the Transport Minister. Motor Vehicles Act as such was not allocated to any Minister. The allocation of business among, the various Minister; appears to have been made under broad heads. In 1961 while allocating subjects to the various depa•·t-ments there was detailed and exhaustive enumeration of the subjects. But that method was not adopted in 1967 while distri-buting the business of the government among the various Ministers . . The functions under the Act undoubtedly relate to Transport department. It cannot be assumed that functions under the Act had not been assigned to any Minister. It is proved that those functions were being discharged by the Minister for Transport. Hence we agree with the High Court that those functions had been·

allocated to the Transport Minister and that the State transport undertaking was being run by the Transport ministry.

Mr. Karunanidhi has' in his affidavit filed before the High Court sworn to the fact that rule 23(A) was framed at his instance. Admittedly he could have assigned the functions under s. 68(C) of the Act to the Transport Secretary by making standing order under rule 22. If he could have done that, we fail to see why he could not advise the Governor through the Chief Minister to make rule 23(A).

It was urged on behalf of the appellants that the parliament has conferred powers under s. 68 ( C) of the Act to designated authority. That power can be exercised only by that authority and by no one else. The authority concerned in the present case is the State government. The government- could not have dele-gated its statutory functions to any one else. The government means the Governor aided and advised by his Ministers. Therefcre the required opinion should have been formed by the Minister to whom the business had been allocated by 'the Rules'. It was further urged that if the functions of the Government can be dis-charged by any one else, then the doctrine of ministerial respon-sibility which is the very essence of the cabinet form of government disappears; such situation is impermissible under our Constitution.

We think that the above submissions advanced on behalf of the appellants are without force and are based on misconception of the principles underlying our Constitution. Under our Constitu-tion, the Governor is essentially constitutional he<1d; the adminis-tration of State is run by the Council of Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government. In order to obviate that difficulty the Constitution has authorised the Governor under sub-Art. ( 3) of. Art. 166 to make rules for the more convenient transaction of business of the government of the State and for the allocation amongst its Ministers, the business of the gove•nment. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. part from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for mo•e convenient transaction of business. He can. not only allo-cate the various subjects amongst the Ministers but may go further and designate particular official to discharge any particular funct~n. But this again he can do only on the advice of the Council of Ministers.The cabinet is responsible to the legislature for every action taken in any of the ministries. That is the essence of joint respon-sibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Coun-cil of Ministers does not and cannot predicate the personal respon-sibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is political responsibility and not personal responsibility. Even the most hard working minister cannot attend to e\·ery business in his department. If he attempts to do it, he is bound to make mess of his department. In every well planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programme:; of his ministry while the Council of Ministers settle the major policies and programmes of the government. When civil servant takes decision, he does not do it as delegate of his Minister. He does it on behalf of the government. It is always open to Minister to call for any file in his ministry and p.tss orders. He may also issue directions to the officers in his ministry regarding the disposal o.f government business generally or as regards any specific case. Subject to that over all power. the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the government. These officers are the limbs of the government and not its delegates.

In Emperor v. Sibnath Banerji and ors.(') construing s. 59(3) of the Government of I,ndia Act, 1935, provision similar to Art. 166(3), the Judicial Committee held that it was within the com-petence of the Governor to empower civil servant to transact any particular business of the government by making appropriate rules. In that case their Lordships further observed that the Ministers like civil servants are subordinates to the Governor. In Ka/yan Singh v. State of U.P: (') .: this Court repelling the conten-tion that the opinion formed by an official of the government does not fulfil the requirements of s. 68 ( C) observed :

"The opinion must necessarily be formed by some-body to whom, under the rules of business, the cqnduct of the business is entrusted and that opinion, in law. will be the opinion of the State Government. It is stated in the counter-affidavit that all the concerned officials in the Department of Transport considered the draft scheme and the said scheme was finally approved by the Secretary of the Transport Department before the

(I l L. R. 72 I. A. p. 241.

(2) [1962] Supp. (2) S. C.R. p. 76.

notification was issued. It is not denied that the ~ecre­tary of the said Department has power under the rules of business to act for the State Government in that behaM'. We, therefore, hold that in the present case the opinion was formed by the State transport undertaking within the meaning of s. 68 ( C) of the Act, and that, there was nothing illegal in the manner of initiation of the said Scheme".

In lshwarlal Girdharlal Joshi etc. v. State of Gujarat and anr. ( ') this Court rejected the contention that the opinion formed by the Deputy Secretary under 1s. 17 ( 1) of the !;and Acquisition Act cannot be considered as the opinion of the State government. After referring to the rules of business regulating the government business, this Court observed at p. 282 : "In our case the Secretaries concerned were given the jurisdiction to take action on behalf of Government and satisfy themselves about the •.need for acquisition under s. 6, the urgency of the matter and the existence of waste and arable lands for the application of sub-ss. ( L) and ( 4) of s. 17. In view of the Rules of business and the Instructions their determination became the determination of Government and no exception could be taken." ·

In Capital Multi-purpose Co-operative Society v. State of Madhya Pradesh and Ors. (1 ), this Court dealing with the scope of s. 68 (D) of the Act observed that the Srate Government obviously is not natural person and therefore some natural person has to give hearing on behalf of the State Government and hence the hearing given by the special secretary pursuant to the power con-ferred on him by the business rules framed under Art. 166 ( 3) is valid hearing.

As mentioned earlier in the very nature of th\ngs, neither the Council of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government. Those matters have to be attended to a;nd decisions taken by various officials at various levels. When those officials discharge the func-tions allotted to them, they are doing so as limbs of the govern-ment and not as persons to whom the power of the government had been delegated. In Halsbury Laws of England Vol. I 3rd Edn. at p. 170, it is observed :

"Where functions entrusted to Minister are perform-ed by an official employed in the Minister's department

(1) !1968] 2, S. C.R. p. 266.

(2) C. A. 2201 -0f1966 decided on :lll.3.1967.

L8Supcl/70-J

there. is in Jaw no delegation because constitutionally the act or decision of the official is that of the Minister."

Similar view has been expressed iin "Principles of Administra-tive Law" by Griffith and Street. That is also the view taken by Sir Ivor Jennings in his "Cabinet Government",

For the reasons mentioned above, we arc: of opinion that the iunctlons under the Motor Vehicles Act had been allocated by the Governor to the 'Transport Minister under "the Rules" and the Secretary of that ministry had been validly authorised under rule 23-A to take action under s. 68 (C) of the Act. ·

The validity of some of the provisions of Madras Act 18 of 1968 which amended the Act was canvassed before us. It is not necessary to go into those questions for deciding the validity· of the impugned sdwme. Those questions can be more appropriately gone into and decided if ·and when action is taken on the strength of those provisions. Hence we leave open those questiQlls.

In the result these appeals fail and they are dismissed with costs-hearing fee one set.

Appeals dismissed,

R.K.P.S.