PETITIONER: SUKHWANT SINGH Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT28/03/1995 BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) AGRAWAL, S.C. (J) HANSARIA B.L. (J) CITATION: 1995 AIR 1380 1995 SCC Supl. (2) 262 JT 1995 (3) 506 1995 SCALE (2)496 ACT: HEADNOTE: JUDGMENT:

<NAME>, J.:

1. The appellant was tried for an offence under Section 302  in connection with the murder of one <NAME> on 11.7.1984 at about 7.30 p.m. The learned Judge <ORG>, Ferozepur convicted him for the said offence and sentenced him to suffer life imprisonment. Through this appeal, under Section 14 of the Terrorists Affected Areas (<ORG>s) Act, 1984, the appellant has challenged his conviction and sentence.

2. According to the prosecution case, the appellant is married to the sister of <NAME>. An engagement had been brought about through the instrumentality of the appellant between the daughter of <NAME> and <NAME> son of <NAME>. The deceased, <NAME> and his brother, <NAME> 3 were on friendly terms with <NAME> but for some reason or the other, that engagement was snapped and <NAME> was married to some other girl about 3 days prior to the occurrence. The appellant suspected that <NAME> deceased and his brother <NAME> were responsible for the snapping of the engagement. On 11.7.1984 at about 7.30 p.m., <NAME>, PW 3 accompanied by <NAME>, deceased and <NAME>, PW4 were going to the fields to answer the call of nature and when they reached near the bridge on the village pond, the appellant came from the opposite side wearing the robes of a Nihang and exhorted that he would teach them a lesson for getting the engagement snapped. Immediately thereafter the appellant took out a pistol from underneath the chola (robes) that he was wearing and fired a shot at <NAME>. On alarm being raised by <NAME>, PW3 and PW4, the appellant fled away alongwith the pistol. One Major <NAME>, PW5 who was also present in the nearby field also witnessed the occurrence. <NAME> was removed to the haveli and while he was being shifted to <ORG>, in the tractor trolley of <NAME>, he expired. On reaching the hospital, the doctor pronounced <NAME> dead. On information being sent by Dr. Sant <NAME>, Ex. P-5 about the arrival of <NAME> deceased at the hospital to the police station, Shri Raghubir <NAME>, ASI PW6 proceeded to the hospital and recorded the statement of <NAME>, Ex. P-4 at about 11.45 p.m. The statement was sent to the police station for registration of a case and on its basis formal FIR Ex.P-4/B was drawn up. A case under Section 302  and Section 25 Arms Act was registered at 12.10 a.m. on 12.7.1984.: A copy of the special report was sent to the Ilaqa magistrate and was received by him on 12.7.1984 at about 6.30 a.m. After preparing the inquest report Ex.P-2, the dead body was dispatched for postmortem which was performed by Dr. Sant Parkash <NAME>, Sr. Medical Officer PW1 on July 12, 1984 at about 11.00 a.m. The doctor found fire arm injuries on the deceased and opined that the death had been caused due to shock and haemorrhage as a result of injury No. 1, which was found to be sufficient in the ordinary course of nature to cause death. During the investigation by ASI Raghubir <NAME>, PW6the rough site plan of the place of occurrence was prepared. From the spot, blood stained earth as well as an empty were collected vide memo Ex. P-8. The same were secured in separate sealed parcels. The appellant was arrested on 8.8.1984 and at the time of his arrest, he was found to be carrying with him a pistol and 7 live car- tridges which were seized by the police.

3. At the trial, the prosecution examined Dr. <NAME>, PW1 <NAME>, PW2, <NAME>, PW3 and <NAME>, ASI PW6. <NAME> PW4 and Major <NAME>, the two other eye witnesses were tendered for cross examination only. The appellant denied the prosecution allegations against him in his statement under Section 313 . The appellant was thereafter, convicted and sentenced for the offence under Section 302 . The case under Section 25 Arms Act was separately tried.

4. Learned counsel for the appellant submitted that the solitary eyewitness examined at the trial by the prosecution <NAME>, PW3 could not be relied upon, as not only he being the brother of the deceased was interested in the prosecution case but also because his evidence stood belied by the medical evidence which showed that the stomach and the bladder of the deceased were empty thereby sug- gesting that the injuries had been received by the deceased after he had answered the call of nature and not before as suggested by <NAME>, PW3. Learned counsel also submitted that in Rukka Ex. P-5 which was sent by the doctor to the police station, it was recorded that the dead body had been brought to the hospital by <NAME> and Major <NAME> and the name of <NAME> was conspicuous by its absence which went to show that <NAME> PW3 was not present at the time of occurrence or when the deceased was removed to the hospital. According to the learned counsel, the non-examination of <NAME>, PW 4 and Major <NAME>, PW5 by the prosecution, who were only tendered for cross- examination, is a serious infirmity in the prosecution case and renders it unsafe to uphold the conviction of the appellant on the basis of the uncorroborated testimony of <NAME>, PW3.

<NAME>, PW3, is the elder brother of the deceased. lie is the solitary eye witness examined by the prosecution. The absence of his name from rukka Ex. P-5, sent by the doctor to the police station immediately after the arrival of the dead body in the hospital creates some doubt about the presence of <NAME> at the place of occurrence at the time when the deceased would have accompanied the in- jured to the hospital. The identification of the deceased by <NAME> and Major <NAME> PWs at the time of postmortem examination of the deceased which has been relied upon by learned counsel for the <ORG>, can not cure the defect of the absence of the name of PW3 from Ruqqa Ex.P-5 because the postmortem examination was conducted the next day on 12-71984 at 11.00 a.m. There is no explanation available on the record, nor has any been offered before us to explain the absence of the name of PW3 from Ruqqa Ex.P-5 in which it was recorded that <NAME> and Major <NAME> had brought the deceased to the hospital.

6. That the deceased died as a result of fire arm injuries is not disputed but what has been challenged is whether the occurrence took place in the manner described by <NAME> and whether <NAME> is an eye witness. The first information report was recorded by <NAME> on the basis of the statement of <NAME>, Ex.P-4 which was recorded at the hospital at about 11.45 p.m. on 11.7.1984. The possibility that <NAME> might have arrived at the hospital later on after learning about the removal of his deceased brother to the hospital by <NAME> and Major <NAME> cannot be ruled out. Moreover, we find that the special report reached the Ilaqa magistrate on the next day at 6.30 a.m. There is no explanation, available on the record about the delay in receipt of the special report by the Ilaqa Magistrate. When admittedly the court of the Ilaqa Magistrate and the police station are quite close to each other. The fact that at thetimeof postmortem examination the stomach and the bladder were found empty, though suggestive of the position that contrary to what <NAME>, PW3 deposed, the deceased had answered the call of nature before he was shot at, but cannot be conclusive of it, as the possibility that the deceased might have defalcated and urinated after the receipt of injuries and before his death cannot ruled out.

7.The prosecution in this case came up with a positive case that besides <NAME>, PW3, <NAME> and Major Singh PW5 had also witnessed the occurrence. The names of these two witnesses are also mentioned in the rukka Ex. P-5 as the persons who had brought the dead body to the hospital. Their evidence in the circumstance of the case was essential for unfolding of the prosecution case. The prosecution however did not examine them and tendered them for cross-examination by the accused at the trial but they were not cross-examined by the accused. From the record of the trial court we find that both PW4 and PW5 had been ten- dered for cross examination "in the light of the observations of <ORG> in the case of Jaggo AIR 197 1, SC 1586. " We are at a loss to appreciate how a wit- ness could be cross-examined, when he has not been examined in chief that is to say, when there is nothing in relation to which he could be cross-examined.

8.It will be pertment at this stage to refer to Section 138 of the Evidence Act which provides :

"138. Order of examinations. Witnesses shall be first examined-chief then (if the adverse party, so desires) crossexamined, then (if the party calling him so desires) re-examined. The exmination and cross-examination must relateto relevant facts but the cross- examination need not be confined to the facts to which the witness testified on his examination-in chief.

Direction for re-examination. The re- examination shall be directed to the ex- planation of matters referred to in cross- examination; and if new matter is, by per- mission of <ORG>, introduced in re-exami-

nation, the adverse part), may further cross- examine upon that matter.

9. It would, thus be seen that Section 138 (supra) envisages that a witness would first be examined in chief and then subjected to cross-examination and for seeking any clarification, the witness may be re-examined by the prosecution. There is, in our opinion, no meaning in tendering a witness for cross examination only. 'rendering of a witness for cross-examination, as a matter of fact, amounts to giving up of the witness by the prosecution as it does not choose to examine him in chief however, the practice of tendering witness for cross-examination in Session Trials had been frequently resorted to since the en- actment of the Code of Criminal Procedure, 1898. The reason behind taking recourse to such a practice, which undoubtedly is inconsistent with Section 138 (supra), is not for to seek. Under that Code as it stood prior to its amendment by Act 26 of 1955 a full-fledged magisterial enquiry was to be held, in a case which was triable exclusively by <ORG> or <ORG>, in accordance with the procedure laid down in Chapter XVIII thereof and in that enquiry prosecution was required to examine all its wit- nesses. Under Section 288 of that Code the evidence of the witnesses so recorded by the Committing Magistrate could be treated, at the discretion of the Session Judge, as substantive evidence at the trial. More often than not, the prosecution tak ing advantage of the above provision, use to asks for and obtain leave of <ORG> to treat the depositions of thesr witnesses whom they did not intend to examine afresh, recorded in the committal enquiry as its evidence in the trial and then tender them for cross- examination. In other words, the prosecution brought on record of the trial court and relied upon the testimonies of some of the witnesses recorded at its instance before the Committing Magistrate as its evidence during the trial and then tendered them for cross-examination by the defences. It will be pertinent to mention here that Act 26 of 1955 which amended the Code of 1898 restricted the examination of prosecution witnesses in the committal enquiry in respect of cases instituted on police report only to those who were to give an ocular version of the incident only.

10.The question as to whether such a practice was legal and valid in view of Section 138 (supra) and, if so to what extent and in what manner it could be adopted came up for consideration by different <ORG>.

11. <CITATION> [AIR 1929 Madras, 906] a Division Bench of <ORG> opined that merely tendering of a prosecution witness for cross- examination is not a practice which should be encouraged specially in a murder case as the procedure would be unfair to an accused.

12. In <NAME> and others v. Emperor (AIR 1942 Bombay, 37) <NAME>, C.J. speaking for <ORG> of <ORG> opined :

"'The other Kakeri witness is <NAME>, (Ex.

34), and a very irregular course was adopted with regard to him. He way tendered for cross-examination. The practice of tendering witnesses for cross-examination which is no doubt often adopted, is inconsistent with S.138, Evidence Act , which says that witness shall be first examined-in-chief and then, if ad-

verse party so desires, cross-examined, and if, the party calling him so desire, re- examined. It is obvious that if a witness is examined by the defence without having given any evidence-in-chief, he is not being cross- examined, by whatever name the process may be described. The practice of tendering for cross-examination should only be adopted in cases of witnesses of secondary importance. Where the prosecution have already got suffi- cient evidence on a particular point, and do not want to waste time by examining a witness who was examined in the lower <ORG>, but at the same time do not want to deprive the accused of the right of cross-examining such witness, they tender him for cross- examination. But, I think, strictly speaking, the witness ought to be asked by the prosecution, with the consent, of course, of the pleader for the accused, and the leave of the Judge, whether his evidence in the lower <ORG>, is true. If he gives a general answer as to the truth of his evidence in the lower <ORG>, he can be cross-examined on that. But he must in some way be examined-in-chief before he can be cross-examined. However, the practice of tendering a witness for cross- examination certainly should not be employed in the case of an important eye-witness." Emphasis supplied)

13.A Full Bench of <ORG> in <CITATION> (AIR 1942 Bombay, 71) approved the opinion of <ORG> (supra) and " condemned" the practice of tendering a witness for cross-examination in no uncertain terms.

14.A Division Bench of the Punjab High Court in <CITATION> (AIR 1954 Punjab, 286) after analysing the provisions of Sections 137 and 138 of the Evidence Act, followed the law laid down by the Full Bench of <ORG> in <NAME>'s case (supra) and observed :

"The other witness of this fact is <NAME> who was tendered for cross-examination, but he was not cross-examined. That again in my opinion is no evidence. The law in regard to examination of witnesses is contained in Section 137 and 138 , Evidence Act . There is no provision in that Act for permitting a witness to be tendered for cross-examination without his being examined-in-chief and this practice is opposed to S. 138 of the Act. " (Emphasis ours)

15. <CITATION> (AIR 1952 Calcutta, 621), a Division Bench of <ORG> held:

"There is a type of case where witnesses of a secondary importance who have been examined before the Committing Magistrate arc not called before <ORG>, because the prosecution considers that it has already had a sufficient body of evidence on the poin t concerned and then in fairness to the defence, it those witnesses for cross-examination. But the fact that the witness is tendered for cross-examination means and implies that there has been some examination-in-chief. As far as I can see, the only Practical way in which a witness can be tendered for cross- examination is by asking him generally, may be bya single question, in the sessions court as to whether the statements made by him before the committing Magistrate were true and on his answering in the affirmative, tendering the evidence given in the committing Magistrate's court which would then serve as the examination-in-chief. Unless the examination-in-chief is brought on the record in that fashion, I cannot understand on what the defence will cross-examine the witness tendered for cross-ex-

amination. It does not appear from the record in this case that the evidence of the witness before the Committing Magistrate was brought on the record at all. In these circumstances, tendering for cross-examination seems to me to have been almost meaningless."

16. <CITATION> (AIR 196 Punjab, 120), <ORG> held:

"Tendering a witness for cross-examination. is almost tantamount to giving up a witness. There is nothing in law that justifies such a course. The trial courts adopt this manner of examining witnesses simply to lighten their burden, but it is not realised that in a serious case like the present murder case when the learned trial Judge failed to examine <NAME>, he was very seriously remiss in his duty."

17. <ORG> of <ORG> in <CITATION> (AIR 1967 Kerala, 16) observed:

"In this connection we wish to clarify the mistaken impression which the teamed Judge seems to have entertained about the propriety of the procedure adopted by the prosecution in tendering eye-witnesses for cross-examination. PW10 who had given evidence in <ORG> as an eye-witness was tendered for cross-examination in <ORG> after he made a bald statement that he has correctly stated all he knew about the incident in the enquiry, Court. The learned Judge has evidently relied on an observation made by <ORG> in <CITATION> , AIR 1958 Pat 422 to find that such a procedure is proper. But it is really not. The very decision relied on by the learned Judge started by enunciating the principle thus :

" The practice of tendering witnesses leads to considerable confusion and is to be deprecated. A material witness should not be merely tendered but should be sworn and asked to give evidence by the prosecution. Tendering if at all should be confined to witnesses of secondary importance. "

18. Thus, it is seen that the Bombay Kerala, Calcutta, Madras and Punjab <ORG> have notwithstanding the provisions of Sections 288 of the Code of 1898 consistently taken the view that there is no procedure whereby the prosecution is permitted to tender a witness for cross-ex- amination only, without there being any examination-in-chief in relation to which, such a witness can be cross examined. The practice of tendering a witness for cross-examination has been consistently discouraged and even condemned by those <ORG> and in our opinion rightly. Our attention has not been drawn to any judgment of any other <ORG> which may have taken the contrary view.

19. <CITATION> alias <NAME> and others (AIR 1971 SC, 1586) which has been referred to and relied upon by the prosecution and the trial court for adopting the procedure of tendering PW4 and PW5 for cross examination only in our opinion, has not been properly appreciated and has been misapplied. That judgment cannot be read to lay down, as a matter of legal preposition, that a witness can be "tendered" for cross-examination even without there being any examination in chief If there is some earlier statement of the witness recorded by a competent court or an affidavit filed in the trial court and the witness testifies to the correctness of that earlier statement at the trial, it (in certain cases of witnesses of a formal nature) as noticed earlier be per-

missible to tender him for cross-examination after he is sworn to the correctness of the earlier statement, because in thateventhat earlier statement is treated as the examination-in-chief of the witness but that is not the same thing as tendering a witness for cross-examination only, without there being any cxamination-in-chief on the record. In <NAME>'s case (supra) a Bench of this court was considering the question whether the mere presentation of an application by the prosecution to the effect that a certain witness had been "won over" was conclusive of the allegation that he had been so "won over" and the prosecution was therefore relieved of its obligation to examine him at the trial. The preposition was negatived and it was in that context, that this court observed :

"On behalf of the appellant it was said that <NAME> wa won over and therefore the prosecution could not call <NAME>. <ORG> rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness has been won over.

In.such a case <NAME> could have been produced for cross-examination by the accused. That would have elicited the correct facts. If <NAME> were an eye-witness the accused were entillwd to test his evidence particularly when <NAME> was alleged to be talking with Rames h at the time of the occurrence."

(Emphasis ours)

20. <ORG>, therefore was considering a peculiar fact situation in that case and even in that context it was observed that the witness "could have been produced for cross-examination by the accused" and that "the accused were entitled to test his evidence." The observations of <ORG> in <NAME>'s case, therefore, do not support the view that a material witness can be "tendered" for cross-examination only. The observations from a judgment of this <ORG> cannot be read in isolation and divorced from the context in which the same were made and it is improper for any <ORG> to take out a sentence from the judgment of this <ORG>, divorced from the context in which it was given, and treat such an isolated sentence as the complete enunciation of law by this <ORG>. The judgment in <NAME>.v (supra) has in our opinion been misappreciated and that judgment cannot beinterprcted as a sanction from <ORG> to the prosecution to adopt the practice of tcndering a witness for cross-examination only, without there being any examinationin-chief, inrelation to which the witness has to be cross-examined. All that the judgment In <NAME>'s case (supra) emphasises is that the mere ipsi dixat of the prosecutor that a particular witness has been won over is not conclusive of that allegation and the <ORG> should not accept the same mechanically and relieve the prosecutor o his obligation to examine such a witness. It was for this reason suggested by the Bench that where the prosecution makes such an allegation, it must keep the witness in attendance and produce him to enable the defence to cross examine such a witness to test his evidence as well as the allegations of the prosecution and bring out the truth on the record. After the coming into force of the Criminal Procedure Code , 1973, which replaced the Code of 1998, recording of evidence in commitment proceedings have been totally dispensed with and section 299 of that Code has been emitted. Consequently, the course suggested by some of the High <ORG>s in the earlier quoted judgments regarding tendering of a witness for cross-examination who had been examined in the committal court, is also no more relevant or available. The <NAME>'s case, which was decided when the Code of 1898 was operating in the field could not, therefore, be pressed into service by the trial court while dealing with the instant case tried according to the Code of 1973. Thus, considered it is obvious that the trial court, wrongly permitted the prosecution to tender PW4 and PW5 for cross-examination only. Both PW4 and PW5 were, according to the prosecution case itself, eye witnesses of the occurrence and had removed the deceased to the hospital. Their evi- dence was, of a material nature which was necessary for the unfolding of the prosecution story. The effect of their being tendered only for cross examination amounts to the failure of the prosecution to examine them at the trial. Their non-examination, in our opinion, seriously affects the credibility of the prosecution case and detracts materially from its reliability.

21. There is yet another infirmity in this case. We find that whereas an empty had been recovered by <NAME>, ASI <NAME> from the spot and a pistol alongwith some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty and the seized pistol to the ballistic expert for the examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no ex- planation has been furnished either in the trial court or before us. It hardly needs to be emphasised that in cases where injuries are caused by fire arms, the opinion of the Ballistic Expert. is of a considerable importance where both the fire arm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the pros- ecution case to a great extent.

22.From a critical analysis of the material on the record, we find that it would not be safe to rely upon the sole testimony of PW3 <NAME>, the brother of the deceased, without independent corroboration in view of the infirmities pointed out by us above which render his testimony as not wholly reliable and since in the present case no such independent corroboration is available on the record, it would be unsafe to rely upon the testimony of PW3 only to uphold the conviction of the appellant. The prosecution has not been able to establish the case against the appellant beyond a reasonable doubt. The trial court, therefore, fell in error in convicting and sentencing the appellant. His conviction and sentence cannot be sustained. This appeal consequently succeeds and is allowed. The conviction and sentence of the appellant is set aside. The appellant is on bail. His bail bonds shall stand discharged.


PETITIONER: <NAME> <ORG>., <ORG>. Vs. RESPONDENT: STATE OF UTTAR PRADESH & OTHERS DATE OF JUDGMENT24/02/1983 BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SEN, A.P. (J) CITATION: 1983 AIR 383 1983 SCR (2) 418 1983 SCC (2) 195 1983 SCALE (1)152 CITATOR INFO : D 1992 SC 443 (13,14) ACT: Motor Vehicles Act , 1939 as in force in the State of Uttar Pradesh- S. 43-A as amended by U.P. Act 15 of 1976 read with s. 47 as amended by Central Act 47 of 1978 Interpretation of-State Government cannot issue directions under sub-s. (1) of s. 43-A for grant of stage carriage permits to an eligible applicants after amendment of s. 43-A by U. P. Act 15 of 1976-While issuing directions under sub- s. (1) of s. 43-A State Government cannot ignore provisions contained in sub-ss. (1) and (1A) to (1H) of s. 47 . Interpretation - Rule of construction of an amended provision. Words and Phrases -`Public interest'-What it means in the context of Motor Vehicles Act , 1939. HEADNOTE: A 'stage carriage' under the Motor Vehicles Act , 1939 means a motor vehicle which carries more than six persons for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey and for plying such a vehicle it is necessary to obtain a permit from the appropriate <ORG>. While considering an application for such a permit, the <ORG> must, under cls. (a) to (f) of sub-s. (1) of s. 47 , have regard to the interest of the public generally, the advantages to the public of the service to be provided, the adequacy of other passenger transport services operating between the places to be served, the operation by the applicant of other transport services, etc., and also take into consideration the representations made by local or police authorities and by persons already providing passenger transport facilities by any means along or near the proposed route or area. <ORG> may, under sub-s. (1) of s. 43 , having regard to the advantages offered to the public by the development of motor transport, the desirability of preventing uneconomic competition among motor vehicles, etc., issue appropriate directions to the <ORG> The subject matter of regulation of motor vehicles being within the scope of entry 35 of the Concurrent List, the Act in its application to tho State of Uttar Pradesh was amended in 1972 by <ORG> by the introduction of s. 43-A which was a new provision. While sub-s. (1) thereof conferred power on <ORG> to issue directions of a general character in public interest in respect of any matter relating to road transport, sub-s. 419 (2) specifically conferred the power to issue directions regarding grant of stage carriage permits to all eligible applicants if <ORG> was of the opinion that it was in the public interest to do so. Further, under sub- s. (2) of s. 43-A , the provisions of s. 47 stood amended to the effect that while considering an application for permit, it was no longer necessary for the <ORG> to have regard to the adequacy of other passenger transport services operating between the places to be served or to the operation by the applicant of other transport services; nor was the <ORG> required to look into representations made by any one other than local or police authorities. <ORG>, acting under s. 43-A , issued directions in March, 1972 for grant of permits to all eligible applicants without any restriction as to the number of permits to be issued on any route. The validity of s. 43- A and the directions issued thereunder were upheld by the <ORG> in <CITATION>  1 S.C.R. 9l6. But, within a short time, <ORG> realised the necessity of reviewing the policy of issuing permits to all eligible applicants and amended s. 43-A with retrospective effect by the Uttar Pradesh Act 15 of 1976. While sub s. (1) was retained as such, sub-s. (2) was substituted by an entirely new sub-section. The Statement of objects and Reasons appended to the Amending Act stated that it had become necessary to reconsider the policy of granting bus permits liberally with a view to checking unproductive capital expenditure and unnecessary consumption of fuel, preventing elimination of small operators as a consequence of unreasonable competition, etc. and authorising <ORG> to issue necessary directions from time to time in regard to the number of permits that may be granted in respect of any route or area, the preference to be given to specifically deserving categories, etc. <ORG> thereafter issued directions to <ORG> to ensure that the operation of the total number of stage carriages on any route was economically viable. Section 47 was amended by the Central Act 47 of 1978. The proviso to sub-s. (1) of s. 47 was amended by providing that in addition to a registered cooperative society, an application for a stage carriage permit from a person who has a valid licence for driving transport vehicles shall he given preference over applications from individual owners. <ORG> also introduced new sub-ss. (1A) to (1H) in s. 47 providing for reservation of certain percentage of stage carriage permits for the Scheduled Castes and Tribes and weaker sections of the community and empowered <ORG> to frame rules for implementing sub-ss. (1A) to (1H) of s 47. These amendments came into force on January 16, 1979. On January 10, 1981 <ORG> issued a notification directing <ORG> to issue stage carriage permits to all eligible applicants and specifying that there should be no upper limit to the number of stage carriages for which permits might be granted. On January 23, 1981, by another notification, of <ORG> were directed to have regard only to matters referred to in cls. (a), (b), (d) and (f) of sub-s. (l) of s. 47 and to take into consideration representations made by local or police authorities only. Tho appellants challenged the notifications under Article 226. 420 The High <ORG> dismissed the petitions repelling the contention that in the absence of reservation of the required percentage of permits for persons belonging to the Scheduled Castes, the Scheduled Tribes and weaker sections as provided in s. 47 the grant of permits would be vitiated. According to the High <ORG> the question of reservation would arise only in those cases where the seats or articles are limited for distribution or allotment but where there is no limit or no fixed number, the question of reservation would not arise. The High <ORG> said that the Statement of objects and Reasons appended to the Amending Act 15 of 1976 cannot override the clear provisions of s. 43-A as amended by that Act and held that though the two impugned notifications did not follow the procedure prescribed by sub-s. (2) of s. 43-A , they could be sustained under sub-s. (1) of s.43-A. It relied on the decision in <NAME> case to hold that large number of buses operating on different routes would be for the convenience and benefit of the travelling public. Allowing the appeals, ^ HELD: Whenever a court is called upon to interpret an amended provision it has to bear in mind the history of the provision, the mischief which the legislature attempted to remedy, the remedy provided by the amendment and the reason for providing such remedy. Section 43-A of the Act as in force in the State of U.P. was amended by the U.P. Act 15 of 1976. By the substitution of the former sub-s. (2) by the new sub-s (2) in s. 43-A the legislature clearly expressed itself against the policy of granting permits to all eligible applicants without any consideration to the needs of any particular locality or route or to the qualifications of applicants. After the amendment, sub-s. (1) of S. 43-A did not comprehend within its scope the power to issue directions for issuing permits to all eligible applicants without any sort of restriction relevant to the scheme of the Act. The sub-section states that <ORG> may issue such directions of a general character as it may consider necessary in the public interest. 'Public interest' under the Act does not mean the interests of the operators or of the passengers only. 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 carriages in other routes or areas which may be in need of running of additional services, the problems of law and order, availability of fuel, etc. 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 facets affecting the general public. The Act itself contains provisions relating to licensing of drivers and conductors, specifications of motor vehicles, co-ordination of road and rail transport, prevention of deterioration of road system, prevention of Uneconomic competition among motor vehicles, etc. Any direction given by <ORG> under s. 43-A should, therefore, be in conformity with all matters regarding which the statute has made provision. In this situation to say that any number of permits can be issued to any eligible operator without any upper limit is to overstep the limits of delegation of statutory power. [444 A-H; 445 A-E] In the instant case, a reading of the two notifications shows that <ORG> ignored the legislative policy underlying the U.P. Act 15 of 421 1976 by which the new sub-s. (2) of s. 43-A was enacted in substitution of the former sub-s. (2) with retrospective effect. The new sub-s. (2) was introduced by the State legislature after it had realised the mistake committed by <ORG> in issuing the notification in the year 1972 directing the issue of bus permits liberally in favour of all eligible applicants which had resulted in investment of unproductive capital expenditure and under-utilisation of capital and fuel and in unreasonable competition which eventually eliminated small operators from business. [441 D-F] (ii) <ORG> also ignored the new policy governing the issue of permits introduced by <ORG> by amending s. 47 of the Act in 1978. The High <ORG> erred in not noticing that by issuing the notification containing a direction to <ORG> to issue limitless number of permits, <ORG> had attempted to circumvent sub-ss. (1) and (IA) to (IH) of a s. 47 . The observation of the High <ORG> that preferences have to be shown and reservations have to be made only when there is scarcity of permits and since there were no restrictions on the number of permits to be issued there was no necessity to make any such provision is shocking. Preference and reservations have value only when there is a limit on the number of permits to be issued and in the context of the Act there should necessarily be a limit on the issue of permits to operate motor vehicles in respect of any route or area. By the D method adopted by it <ORG> has virtually allowed the rich and well-to-do businessman - who can bear the loss for some time to introduce any number of vehicles on a route or in any area until all the small operators who also may take the permits to leave the field owing to the inevitable loss that ensues by the operation of an unlimited number of vehicles. The two notifications in question are clearly outside the scope of the Act. [445 F-H; 446 A-E] (iii) The observations in <NAME> case are inapplicable to the present cases. In that case the <ORG> was concerned with sub-s. (2) of s. 43-A as it stood then. At that time, the sub-section contained a clear legislative policy which considered that there could be no public prejudice if all eligible applicants were granted permits. Whatever the <ORG> may have observed while considering that provision would not apply now as There is a clear departure made by the legislature from that policy when it enacted the new sub-s. (2) of s. 43-A . In the face of this amendment by which the former sub-s. (2) of s.43-A which specifically authorised <ORG> when it was satisfied that it was necessary to do so in the public interest to issue directions to <ORG> to grant permits to all eligible applicants was deliberately taken away by the State legislature, the High <ORG> was wrong in holding that such power was still available under sub-s. (1) of s. 43-A which was widely worded. [443 <CITATION> .  2 S.C.R. 916, held inapplicable. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1269- 71 of 1982.

Appeals by Special leave from the Judgment and order dated 23rd the March, 1982 of <ORG> in Civil Miscellaneous Writ Petition Nos. 2328, 2424 and 1998 of 1981.

<NAME> and <NAME> for the Appellants. Mrs. <NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME> J. In these appeals by special leave filed against the common judgment dated March 23, 1982 of <ORG>, the validity of two Notifications issued by <ORG> under section 43-A of the Motor Vehicles Act, 1939 (Act IV of 1939) (hereinafter referred to as 'the Act') as in force in the State of Uttar Pradesh arises for consideration. The two impugned Notifications are reproduced below:

I. "Notification No. 68 T/XXX-4-15-KM/79 Dated: Lucknow: January 10, 1981.

Whereas, <ORG> is of opinion that it is in the public interest to grant stage carriage permits (except in respect of routes or areas for which schemes have been published under section 68-C of the Motor Vehicles Act, 1939) to all eligible applicants:

Now. therefore, in exercise of the powers under section 43 . A of the Motor Vehicles Act , 1939, the Governor of Uttar Pradesh is pleased to direct that the stage carriage permits (except in respect of routes or areas for which schemes have been published under section 68-C of the Motor Vehicles Act, 1939) shall be granted according to the provisions of the Act to all eligible applicants and there shall be no upper limit to the number of stage carriages for which permits may be granted.

By order <NAME>, Sachiv II. Notification No. 241 T/XXX-4-15-P/79 Dated: January 23, 1981 The Governor being satisfied that it is expedient in the public interest so to do, is pleased to direct in exercise of the powers under section 43-A of the Motor Vehicles Act, 1939 (Act No. 4 of 1939) that while considering applications for stage carriage permits, <ORG> or <ORG>:

(i) shall have regard only to matters referred to in clauses (a), (b), (d) and (f) of sub-section (1) of section 47 of the said Act and shall also take into consideration representations made by the local authority or police authority within whose jurisdiction any part of the proposed route or area lies; and

(ii) shall be deemed to have made sufficient compliance of the provisions of section 57 of the said Act, if it intimates the particulars of the applications to such local authority and police authority for making representations, if any, within a period of fifteen days from the date of despatch of the intimation with the stipulation that if no representation is received with in the prescribed period of time, it shall be presumed that they have no representation to make, and has considered any representation made by such local authority and police authority.

By order <NAME>, Sachiv."

The appellants who are stage carriage operators challenged The validity of the above Notifications in the writ petitions filed by them under Article 226 of the Constitution before <ORG> inter alia on the ground that they were ultra vires the provisions of the Act under which they had been issued. <ORG> dismissed the writ petitions after negativing the contentions of the appellants. Aggrieved by the decision of <ORG> the appellants have preferred these appeals by special leave as stated above.

It is necessary at this stage to give a resume of the relevant statutory provisions to understand the rival contentions of the parties. On finding that the Indian Motor Vehicles Act , 1914 which Was brought into force at an early stage of development of motor transport was inadequate to meet the new situation created by the growth of motor transport by the year 1939, <ORG> passed the Act for the purpose of regulating motor traffic in the interests alike of the safety and convenience of the public and of the development of a coordinated system of transport. The Act underwent major alterations in 1956 and 1969. Broadly the Act provided inter alia for registration of motor vehicles, licensing of drivers and conductors, grant of permits to ply public service vehicles and public carriers, operation of road transport service by State transport undertakings in any area or on any route to the exclusion, complete or partial of other persons, construction, equipment and maintenance of motor vehicles, control of traffic, insurance of motor vehicles against third party risks and offences, penalties and procedure. The State Governments were entrusted with the duty of framing rules on various matters connected with the topics dealt with by the Act. The subject of regulation of motor vehicles being within the scope of Entry 35 - mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied-in List III of the Seventh Schedule to the Constitution, various amendments were made from time to time by several State Legislatures with the assent of the President of India either adding to or modifying the provisions of the Act. Chapter IV of the Act which includes section 42 to section 68 contains provisions pertaining to the control of motor vehicles. Section 42 of the Act provides that no owner of a transport vehicle shall r use or permit the use of the vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accordance with the conditions of a permit granted or countersigned by <ORG> or the <ORG> authorising the use of the vehicle in that place in the manner in which the vehicle is being used. A 'transport vehicle' is defined in section 2(33) of the Act as a public service vehicle or a goods vehicle. A 'public service vehicle' is defined in section 2(25) of the Act as any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage and stage carriage. Section 2(29) of the Act states that a 'stage carriage' means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. Section 45(1) of the Act prescribes that every application for a permit shall be made to <ORG> of the region in which it is proposed to use the vehicle or vehicles. When the vehicle is to be used in two or more regions, the applications for permits may be made as provided in the provisos to section 45(1) or section 45(2) of the Act, as the case may be. The constitution of <ORG> and <ORG> is dealt with by section 44 of the Act. <ORG> or <ORG> shall consist of a Chairman who has had judicial experience or experience as an appellate or revisional authority under any law relating to land revenue and in the case of <ORG>, such other officials and non-officials, not being less than two, and, in the case of <ORG> such other persons (whether officials or not) not being less than two, as <ORG> may think fit to appoint. An application for a stage carriage permit shall have to contain the particulars mentioned in section 46 of the Act. Prior to its amendment in 1978, section 47 as amended by Act 100 of 1956 read as follows:

"47. Procedure of <ORG> in considering application for stage carriage permits.-(1) A <ORG> shall, in considering an application for a stage carriage permit. have regard to the P following matters, namely:

(a) the interest of the public generally;

(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;

(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served.

(d) the benefit to any particular locality or localities likely to be afforded by the service;

(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;

(f) the condition of the roads included in the proposed route or area;

and shall also take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road trans port facilities recognised in this behalf by <ORG>, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies:

Provided that other conditions being equal, an application for a stage carriage permit from a cooperative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners. (2) <ORG> shall refuse to grant a stage carriage permit if it appears from any timetable furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened:

Provided that before such refusal an opportunity shall be given to the applicant to amend the time-table so as to conform to the said provisions. (3) <ORG> may, having regard to the matters mentioned in sub-section (1), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or on any specified area or on any specified route within the region."

The procedure in applying for and granting permits is set out in section 57 of the Act. Section 48 of the Act provides that subject to section 47 , <ORG> may, on an application made to it under section 46 , grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit. If <ORG> decides to grant a stage carriage permit, it may attach to it all or any of the conditions mentioned in section 48(3) of the Act. The proceedings before <ORG> are quasi judicial in character. While considering the application for the grant of a stage carriage permit <ORG> has to consider all representations referred to in section 57(3) . Sub-section (5) of section 57 of the Act provides that when any representation such as is referred to in sub-section (3) thereof is made, <ORG> shall dispose of the application at a public hearing at which the applicant and the persons making the representations shall have an opportunity of being heard either in person or by a duly authorised representative. Representations can be made among others by any person who is providing transport facilities on the route or in the area, any rival applicant, police authorities and local authorities. Any person who satisfies the qualifications mentioned in section 64 of the Act and who is aggrieved by the resolution of <ORG> may file an appeal before <ORG> which should consist of a wholetime judicial officer not below the rank of a District Judge. An order of <ORG> or of <ORG> against which no appeal can be filed is subject to revision by <ORG> under section 64-A of the Act. Subsection (1) of section 43 of the Act which confers power on <ORG> to control transport reads thus:

"43. Power to State Government to control transport-

(1) A State Government having regard to:

(a) the advantages offered to the public, trade and industry by the development of motor transport,

(b) the desirability of coordinating road and rail trans port.

(c) the desirability of preventing the deterioration of the road system, and

(d) the desirability of preventing uneconomic competition among motor vehicles, may, from time to time, by notification in the official <ORG>, issue directions to <ORG>:

(i) regarding the fixing of fares and freights (including the maximum and minimum in respect thereof) for stage carriages, contract carriages and public carriers;

(ii) regarding the prohibition or restriction, subject to such conditions as may be specified in the directions, of the conveying of long distance goods traffic generally, or of specified classes of goods, by private or public carriers,

(iii) regarding the grant of permits for alternative routes or areas, to persons In whose cases the existing permits are not renewed in pursuance of the provisions of sub-section (1-D) of section 68-F , or are cancelled or the terms thereof are modified in exercise of the powers conferred by clause

(b) or clause (c) of sub-section (2) of section 68-F ;

(iv) regarding any other matter which may appear to <ORG> necessary or expedient for giving effect to any agreement entered into with <ORG> or any other State Government or the Government of any other country relating to the regulation of motor transport generally, and in particular to its coordination with A other means of transport and the conveying of long distance goods traffic:

Provided that no such notification shall be issued unless a draft of the proposed directions is published in the official <ORG> 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 <ORG>, been considered after giving the representatives of the interests affected an opportunity of being heard."

In the year 1972, however, the Act was amended by <ORG> State of Uttar Pradesh introducing a new section being section 43-A by the Motor Vehicles (U.P. Amendment) Act, 1972 with the assent of the President. The material part of section 43-A which was newly introduced by the said amending U.P. Act read as under:

"43-A. (1) 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 <ORG> or to <ORG>, and such Transport Authority shall give effect to all such directions.

(2) Without prejudice to the generality of the fore going power, where the State Government is of opinion that it is in the public interest to grant stage carriage permits (except in respect of routes or areas for which schemes have been published under section 68(C) or contract carriage permits or public carrier permits to all eligible applicants, it may by notification in the <ORG> issue a direction accor- dingly, and thereupon all transport authorities as well as <ORG> constituted under section 64 shall proceed to consider and decide all applications, appeals and. revisions in that behalf (including any pending applications, appeals and revisions) as if-

(a) in section 47-

(i) for sub-section (1) the following sub-

sections were substituted:

(ii) <ORG> shall in considering an application for a stage carriage permit, have regard to the following matters, namely-

(a) the interest of the public generally;

(b) the advantage to the public of the service to be provided including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;

(c) the benefit to any particular locality or localities likely to be afforded by the service;

and shall also take into consideration any representation made by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies; and sub-section (3) were omitted The above U.P. Act was preceded by the U.P. Ordinance which contained more or less the same provisions. The ordinance was substituted by the said U.P. Act . The object of enacting section 43-A of the Act was set out in the Statement of objects and Reasons attached to the relevant U.P. Bill which read as follows:

"Objects and Reasons-operators engage in the race for securing permits for stage carriage on non-nation alised routes. Due to limitation on the number of permits this business is controlled by a few persons. Complaints in this regard are made every other day. Therefore, with a view to making it easier to secure permits in respect of non nationalised routes and to introducing simplicity in procedure and to providing greater employment and securing equitable distribution thereof it was considered necessary to amend sections 47 , SO, SS and 64 of the Motor Vehicles Act , 1939, suitably. Accordingly, in the public interest and with the aforesaid object in view, the Motor Vehicles (Uttar Pradesh Amendment) ordinance, 1972, was promulgated. This Bill is introduced to replace the said ordinance.

Pursuant to the power conferred on it by section 43-A of the Act, <ORG> issued the following directions on March 30, 1972 by a Notification, the relevant part of which reads as under:

"Whereas <ORG> is of opinion that it is in the public interest to grant stage carriage permits (except in respect of routes or areas for which schemes have been published under section 68-C of the Motor Vehicles Act, 1939) contract carriage permits and public carrier permits to all eligible applicants. Now, therefore, in exercise of the power conferred by section 43-A of the Motor Vehicles Act, 1939 the Governor is pleased to direct that stage carriage permits (except in respect of routes or areas aforesaid) contract carriage permits and public carrier permits shall be granted according to the provisions of the said Act to all eligible applicants."

The validity of section 43-A of the Act introduced by <ORG> and of the Notification dated March P 30, 1972 issued by the Government of Uttar. Pradesh pursuant to that section was questioned in some writ petitions filed by some motor operators in <ORG> of Allahabad. Those petitions were dismissed. On appeal this Court upheld the validity of section 43-A of the Act as well as the Notification by its judgment in <CITATION> .(1) which was delivered on December 4, 1974. Within about three and half years from the date of the above said notification <ORG> realised that it was necessary to review the whole question of issuing permits to all eligible applicants. Accor-

dingly the State Government issued a Notification on September 24, 1975 which ran as follows:

"Whereas, in exercise of the power conferred by Section 43-A of the Motor Vehicles Act, 1939 <ORG> was by notification No. 1188-T/XXX-4, dated March 30, 1972, pleased to direct that stage carriage permits (except in respect of routes or areas aforesaid) contract carriage permits and public carrier permits shall be granted according to the provisions of the said Act to all eligible applicants: And whereas, on further consideration <ORG> is of opinion that the policy of granting such permits to all eligible applicants requires review with a view to:

(a) Preventing unproductive expenditure and under utilization of capital and fuel.

(b) Preventing elimination of small operators due to unfair competition resulting from the issue of more permits than required for a route.

(c) Facilitating long term planning of passenger road transport services.

And whereas, such review is likely to take some time and in the mean time it is necessary to stay the disposal of all pending applications for permits or entertainment of fresh applications. Now, therefore, in exercise of the powers conferred by the said Section 43-A of the Motor Vehicles Act, 1939, read with Section 21 of the U.P. General Clauses Act, 1904, the Governor is pleased to direct that:

1. The Notification No. 1198 T/XXX-4, dated 30th March, 1972 be and is hereby rescinded with immediate effect.

<NAME>

2. The consideration of applications for stage carriage permits pending with <ORG> shall stand postponed until further directions are issued in this behalf by the State Government.

3. No fresh applications for such permits shall be entertained until further directions are issued in this behalf by <ORG>."

The above Notification shows that as a consequence of the policy of granting permits to all eligible applicants, necessity had arisen to take measures (i) to prevent unproductive expenditure and under utilisation of capital and fuel, (ii) to prevent elimination of small operators due to unfair competition resulting from the issue of more permits than required for a route; and (iii) to embark upon long term planning of passenger road transport services.

It is stated that by U.P. Ordinance 35 of 1975, Section 43-A was amended. This ordinance was replaced by the Uttar Pradesh Act 15 of 1976. By this Act, sub-section (2) of section 43-A . which had been added in 1972 was substituted with retrospective effect from the date of its original enactment. Section 43-A after it was amended by the U.P. Act 15 of 1976 read as under:

"43-A. Power of State Government to issue directions to Transport Authorities-(1) 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 <ORG> or to <ORG>, and such Transport Authority shall give effect to all such directions. (2) Without prejudice to the generality of the provisions of sub-section (1) such directions may be given in respect of any of the following matters, namely:

(a) the number of stage carriage or contract carriage permits that may be granted in respect of any route or area.

(b) the preference or the order of preference to be given to or the quota to be fixed for, specially deserving categories, such as <ORG> personnel, educated unemployed persons, such persons holding driving licences as are members of cooperative societies formed for passenger transport business, persons belonging to the Scheduled castes and Scheduled Tribes.

(c) the procedure for grant of permits, and for selection from among the applicants, including selection by drawing of lots from among persons belonging to the same category. (3) Any direction under sub-section (1) may be issued with retrospective effect.

(4) Where any direction is issued under sub- section (1) to <ORG>, then any appeal or revision pending before <ORG> shall also be decided in such manner as to give effect to such directions. (5) Where any direction is issued under sub- section (1) with retrospective effect then

(a) <ORG> or <ORG> may review any order passed earlier by it with a view to making it conform to such direction and may for that purpose cancel any permit already issued.

(b) <ORG> may apply to <ORG> earlier with a view to enabling such authority to comply with such direction. (6) The provisions of this section shall have effect not withstanding anything contained in sections 47 , 50 and 57 ."

The policy behind the above amendment was stated in the Statement of objects and Reasons placed before <ORG> as follows:

"(5) In 1972 <ORG> had accepted a policy of granting bus permits liberally. Reconsideration of the said policy however, became necessary with a view to checking unproductive capital expenditure and unnecessary consumption of fuel and preventing the elimination of small operators as a consequence of unreasonable competition and to removing difficulties in the implementation of long term plans pertaining to passenger road transport services. It was accordingly considered necessary to amend the Motor Vehicles Act , 1939, to authorise <ORG> to issue directions from time to time in regard to the number of permits that may be granted in respect of any route or area, the preference to be given to specially deserving categories and the procedure for grant of permits."

Pursuant to the said amended section 43-A of the Act, <ORG> issued a Notification containing directions on March 12, 1976 in the following terms:

"Whereas, in exercise of the powers conferred by section 43-A of the M.V. Act, 1939, <ORG> had by a notification No. 4251-T/XXX-4-9P/72 dated September 24 1975, as amended by notification No. 4530-T/ XXX-4-75 dated October 6,1975 postponed the consideration of applications for permits by any transport authority in respect of non-notified routes until further directions in this behalf of <ORG>.

Now, therefore, in exercise of the powers conferred by the said section 43-A (2) of the M.V. Act , 1939 read with section 21 of the General Clauses Act, 1904, the Governor is pleased to direct: (1) That the S.T.A. and R.T. As. while fixing the number of Additional Stage Carriage permits to be issued at a given time on non-notified routes, shall in addition to the consideration of the matter mentioned in sub-section (1) of section 47 of the M.V. Act, ensure that the operation of the total number of stage carriages on any route, taking into consideration the existing as well as the additional permits proposed to be issued, would be economically viable on the existing fare-structure as per the norms as laid down by <ORG> from time to time ............................."

The above notification also contained directions regarding the principle to be followed in determining the number of permits that could be issued and reservation of permits for operators displaced by nationalisation, educated unemployed, members belonging to the Scheduled Castes, the Scheduled Tribes and other backward classes, unemployed army drivers and cooperative societies.

These directions were superseded by the issue of a fresh notification under section 43-A by <ORG> on October 12, 1977 which was superseded by a Notification dated October 15, 1978.

Within a fortnight from the date of the last Notification referred to above <ORG> amended the Act by enacting The Motor Vehicles (Amendment) Act , 1978 (Act 47 of 1978) which inter alia amended the proviso to subsection (1) of section 47 of the Act and inserted sub-sections (1A) to (1H) in that section. After this amendment, the proviso to sub-section (1) of section 47 of the Act reads thus:

"47. (1).............

Provided that other conditions being equal, an application for a stage carriage permit from a co- operative society registered or deemed to have been registered under any enactment in force for the time being and an application for a stage carriage permit from a person who has a valid licence for driving transport vehicles shall, as far as may be, be given preference over applications from individual owners."

The new sub-sections (1A) to (1H) of section 47 of the Act read:

"47. (1) ............

(1A) The Government of a State shall reserve in that State certain percentage of stage carriage permits for the Scheduled Castes and the Scheduled Tribes. Explanation-In this section and in sections 55 and 63 , 'Scheduled Castes,' and 'Scheduled Tribes' have the meanings respectively assigned to them in Article' 366 of the Constitution.

(1B) The reservation of permits under sub-section (1A) shall be in the same ratio as in the case of appointments made by direct recruitment to public services in the <ORG>.

(1C) The Government of a State may, having regard to the extent to which persons belonging to economically weaker sections of the community have been granted stage carriage permits in that State:-

(a) reserve in that State such percentage of stage carriage permits, as may be prescribed, for persons belonging to economically weaker sections of the community, or

(b) notwithstanding anything contained in the proviso to sub-section (1), give preference, in such manner as may be prescribed, to applications for stage carriage permits from such person Explanation I-In this section and in sections 55 , 63 and 68 , a person shall be deemed to belong to economically weaker section of the community, if and only if, on the prescribed date:-

(a) the annual income of such person together with the annual income, if any, of the members of his family; or G

(b) the extent of land (whether in one class or in different classes), held by such person together with that, if any, held by the members of his family, or

(c) the annual income and the extent of land aforesaid, does, or do not exceed such limit as may be prescribed.

Explanation II.- For the purposes of Explanation I, "family", in relation to an individual, means the wife or husband, as the case may be, of such individual and the minor children of such individual. (1D) The number of permits reserved under sub- section (1B) and clause (a) of sub-section (1C), shall not exceed fifty per cent of the total number of stage carriage permits granted during a calendar year. (1E) In giving effect to the provisions of sub- section (1B) and clause (a) of sub-section (1C) <ORG> or <ORG> may, if it considers necessary or expedient so to do, group the various routes within its jurisdiction.

(1F) Where any stage carriage permit is to be granted from the quota reserved under sub-section (1B) or clause(a) of sub-section (1C) to any cooperative society registered or deemed to have been registered under any enactment in force for the time being or any firm to which the provisions of the Indian Partnership Act , 1932 , apply, no permit shall be granted to such society or firm unless the members of the co-operative society or the partners of the firm belong to the Scheduled Castes, the Scheduled Tribes or economically weaker sections of the community: Provided that where the members of such co- operative society or the partners of such firm are partly from the Scheduled Castes, partly from the Scheduled Tribes and partly from the economically weaker sections of the community, or from any two of these categories, any permit under this sub-section shall be granted to such society or firm only from the quota reserved for the category to which the largest number of members of the co-operative society, or as the case may be, partners of the firm belong:

Provided further that where no reservation has been made in the State for economically weaker sections of the community under clause (a) of sub-section (1C), no permit under this sub-section shall be granted to a co-operative society or firm unless the members of such society or partners of such firm belong to the Scheduled Castes or the Scheduled Tribes or partly to the Scheduled Castes and partly to the Scheduled Tribes and the permit to such society or firm shall be granted only from the quota reserved for the Scheduled Castes or the Scheduled Tribes according as to whether the larger number of the members of the co-operative society, or partners of the firm, belong to the Scheduled Castes or the Scheduled Tribes. (1G) The circumstances under which, the manner in which, and the extent to which, reservation under sub- section (1A) and clause (a) of sub-section (1C) may be carried forward shall be such as may be prescribed. (1H) Notwithstanding anything contained in this section, an application for stage carriage permit from a State transport undertaking for operating in any inter-State route shall be given preference over all other applications: Provided that the authority shall not grant a permit under this sub-section unless it is satisfied that the State transport undertaking would be able to operate in the inter-State route without detriment to its responsibility for providing efficient and adequate road transport service in any notified area or notified route as is referred to in sub section (3) of section 68D where the undertaking operates the service.

Explanation.-For the purposes of this sub-section, 'inter-State route' means any route Lying continuously in two or more States."

By the amendment of section 47 of the Act as stated above, <ORG> directed that <ORG> while considering applications for stage carriage permits should, provided that other conditions being equal? give preference to an application from a person who has a valid licence for driving transport vehicles over applications from individual owners. <ORG> also provided for reservation of certain percentage of permits for state carriages in favour of persons belonging to the Scheduled Castes and the Scheduled Tribes in the same ratio as in the case of appointments made by direct recruitment by a State Government to public services in that State. Since it was considered necessary to promote the well being of economically weaker sections of the community, <ORG> was empowered under certain circumstances either to reserve certain percentage of permits for stage carriages for persons belonging to economically weaker sections of the community or to give preference to them in the prescribed manner. It was however, provided that the number of permits reserved under section 47(1B) and (1C)(a) of the Act should not exceed fifty per cent of the total number of stage carriage permits granted in a calendar year. It was also provided that if <ORG> applied for a stage carriage permit operating in any inter-State route, such application should be given preference over all other applications provided the authority we satisfied that the <ORG> would be able to operate in the inter-State route without detriment to its responsibility for providing efficient and adequate road transport service in any notified area or notified route as is referred to in sub section (3) of section 68-D of the Act where the <ORG> operated its service. By the very same amending Act of 1978 <ORG> also amended section 68 of the Act by inserting clauses (ci), (cii), (ciii) and (civ) enabling <ORG>s to frame rules for implementing subsections (1A) to (1H) of section 47 of the Act. The above said amendments made to sections 47 and 68 came into force on January 16, 1979. It is conceded by the learned Attorney General who appeared for <ORG> that these amendments which were made by <ORG> would have an over riding effect on section 43-A of the Act introduced earlier by <ORG> and that section 43-A should be read subject to those later amendments made by <ORG>. Curiously <ORG> issued on January IO, 1981 and January 23, 1981 the impugned notifications which are set out at the commencement of this judgment. By the first notification, <ORG> directed <ORG> of the State of Uttar Pradesh to issue stage carriage permits (except in respect of routes or areas for which schemes had been published under section 68-C of the Act) to all eligible applicants and that there should be no upper limit to the number of stage carriages for which permits might be provided. By the second impugned notification dated January 23, 1981, <ORG> directed <ORG> and <ORG> to have regard only to matters referred to in clauses (a), (b), (d) and (f) of sub-section (1) of section 47 of the Act and should also take into consideration representation made by the local authority or police authority within whose jurisdiction any part of the proposed route or area lay. It also directed that section 57 should be deemed to have been complied with if <ORG> concerned intimated the particulars of the applications to such local authority and police authority for making representations, if any, within a period of fifteen days from the date of despatch of the intimation with the stipulation that if no representation was received within the prescribed period of time, it would be presumed that they had no representation to make and considered any representation made by such local authority and police authority;

A reading of these two notifications shows that <ORG> ignored, first, the legislative policy underlying the Uttar Pradesh Act 15 of 1976 by which the new sub-section (2) of section 43-A was enacted in substitution of the former sub section (2) with retrospective effect. As stated earlier, <ORG> introduced the new sub-section (2) of section 43-A after it realised the mistake committed by <ORG> in issuing the notification in the year 1972 directing the issue of bus permits liberally in favour of all eligible applicants which had resulted in investment of unproductive capital expenditure and under utilisation of capital and fuel and in unreasonable competition which eventually eliminated small operators from business. The State Government also ignored the new policy governing the issue of permits introduced by <ORG> by amending section 47 of the Act. It was argued on behalf of <ORG> before <ORG> that <ORG> d not contravened either section 43-A , or the provisions of section 47 as amended in the year 1978. <ORG> dismissed the writ petitions observing that the Statement of objects and Reasons attached to the Bill which was ultimately enacted as the U.P. Act 15 of 1976 could not over-ride the clear provisions of section 43-A as amended by that Act. <ORG> upheld the notification dated January 10, 1981 and further observed that since the schemes of grant of free permits had been upheld by it '<ORG> had the power to prescribe the procedure to be followed in granting the same which has been provided for by the Notification dated January 23, 1981'. Repelling the contention of the writ petitioners that in the absence of reservation of the required percentage of permits for persons belonging to the Scheduled Castes, the Scheduled Tribes and weaker sections as provided in section 47 as amended by <ORG> in 1978, the grant of permits would be vitiated, <ORG> observed as follows:

"The question of reservation, however, arises only in those cases where the seats or articles are limited for distribution or allotment but where there is no limit or no fixed number, the question of reserved on will not arise. In that event, every body would be served according to his need and aspiration. Hence, if under section 43-A a direction has been made for grant of stage carriage permit to all eligible applicants without putting any fixed number for the vehicles to ply, the interest of the Scheduled Castes and Scheduled Tribes would be sufficiently safeguarded. A member of the Scheduled Caste or Scheduled Tribe as well as economically weaker section of the community would as much be entitled to get a permit to run his vehicle as a member of any other community. It is where the seats are limited that the legislature thought of making a provision to reserve the grant of permits in their favour to the extent of 25 per cent. The principle behind reservation in the grant of stage carriage permits employed by the <ORG> appears to be the same as in reserving appointment in the Government service. If today government services are available in abundance, the question of reservation would not arise. It is only on account of the posts being limited that the question of reservation has arisen. So we are not able to agree with the submission of the petitioner's learned counsel that there is a conflict between section 43-A , as inserted by <ORG> and the amendments made in section 47 by <ORG> in the Motor Vehicles Act ."

<ORG> further proceeded to observe that though the tow impugned notifications did not follow the procedure prescribed by sub-section (2) of section 43-A as it is now in force in the State of Uttar Pradesh, they could be sustained under sub-sec. (1) of section 43-A which authorised <ORG> to issue such directions of a general character as it might consider necessary or expedient in the public interest in respect of any matter relating to road transport to <ORG> or to <ORG> and which required such authority to give effect to any such directions. <ORG> also relied upon the decision of this Court in <NAME> case (supra) to hold that larger number of buses operating on different routes would be for the convenience and benefit of the travelling public.

We may here state that any observations made in <NAME> case (supra) would be inapplicable so far as these cases presently before us are concerned. In that case the <ORG> was concerned with sub-section (2) of section 43-A of the Act as it stood then which was a provision enacted by the <ORG>. That sub- section provided that without prejudice to the generality of the power contained in section 43-A(1) of the Act where <ORG> was of opinion that it was in public interest to grant stage carriage permits (except) in respect of routes or areas for which schemes have been published under section 68 (C) or contract carriage permits or public carrier permits to all eligible applicants it may issue appropriate directions as stated therein. That sub-section contained a clear legislative policy which considered that there could be no public prejudice if all eligible applicants were granted permits. Without saying anything more on the point, it may be stated that whatever this <ORG> may have observed while considering that provision would not apply now as there is a clear departure made by the <ORG> from that policy when it enacted the new sub-section (2) of section 43-A . In the face of this amendment by which the former sub-section (2) of section 43-A which specifically authorised he State Government when it was satisfied that it was necessary to do so in the public interest to issue directions to the Transport Authorities to grant permits to all eligible applicants was deliberately taken away by the State <ORG>, the High <ORG> was wrong in holding that such power was still available under sub-section (1) of section 43-A of the Act which was widely worded. The High <ORG> shut its eyes to the realities of the situation when it observed that in this case the contents of the Statement of objects and Reasons were irrelevant as the provisions of section 43-A (1) were very clear. Even without the aid of the Statement of objects and Reasons it has to be held that by the substitution of the former sub-section (2) by the new sub- section (2) in section 43-A the <ORG> clearly expressed itself against the policy of granting permits to all eligible applicants without any consideration to the needs of any particular locality or route or to the qualification of applicants. It is a well settled rule of construction of statutes that whenever a court is called upon to interpret an amended provision it has to bear in mind the history of that provision, the mischief which the <ORG> attempted to remedy, the remedy provided by the amendment and the reason for providing such remedy. Therefore, after the amendment at any rate it has to be held that sub-section (1) of section 43-A of the Act did not comprehend within its scope the power to issue direction, for issuing permits to all eligible applicants without any sort of restriction relevant to the scheme of the Act. What does section 43-A(1) after all say ? It says that <ORG> may issue such directions 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 areas 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 P 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 nave 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. If we run through the various provisions of the Act it becomes clear how much attention is given by it to various matters affecting public interest. There are provisions relating to licensing of drivers on the basis of their competence, licensing of conductors, specifications to which the motor vehicles should conform, coordination of road and rail transport, prevention of deterioration of the road system, prevention of uneconomic competition among motor vehicles, fixation of reasonable fare, compliance by motor vehicles with the prescribed time table, construction of bus stands with necessary amenities, maintenance of standards of comfort and cleanliness in the vehicles, development of <ORG> tourist traffic and several other matters with the object of making available adequate and efficient transport facilities to all parts of the country. Any direction given by <ORG> under section 43-A of the Act should therefore, be in conformity with all matters regarding which the statute has made provision. In this situation to say that any number of permits can be issued to any eligible operator without any upper limit is to overstep the limits of delegation of statutory power and to make a mockery of an important economic activity like the motor transport.

It is surprising that <ORG> has reached the conclusion that the preferences and reservations to be observed while granting permits as stated in the proviso to sub-section (1) to section 47 and in sub sections (1A) to (1H) of section 47 have not been contravened as there is no restriction on the number of permits to be issued. The observation of <ORG> that preferences have to be shown and reservations have to be made only when there is scarcity of permits and since there are no restrictions on the number of permits to be issued there is no necessity to make any such provision really shocks us. <ORG> erred in not noticing that it was dealing with a vital economic activity which could be carried on at a huge cost both to the operator and to the <ORG> and that by issuing the notification containing a direction to <ORG> to issue limitless number of permits, the State <ORG> had attempted to circumvent sub-sections (1) and (1A) to (1H) of section 47 of the Act. Preferences and reservations have value only when there is a limit on the number of permits to be issued and in the context of the Act there should necessarily he a limit on the issue of permits to operate motor vehicles in respect of any route or area. By the method adopted by it the State <ORG> has virtually allowed the rich and well-to-do businessman who can bear the loss for some time to introduce any number of vehicles on a route or in any area until all the small operators who also may take the permits to leave the field owing to the inevitable loss that ensues by the operation of an unlimited number of vehicles. The learned Attorney General while conceding that the amendment made in 1978 to section 47 of the Act should prevail contended that they had not been violated by the impugned notifications. We do not agree with the above submission. We are clearly of the view that the State <ORG> has transgressed the provisions contained in sub-section (1) and sub-sections (1A) to (1H) of section 47 . It has failed to comply with the duty imposed on it by those provisions.

We are of the view that the two notifications are clearly outside the scope of the Act. The first notification which directs that all eligible applicants shall be granted permits and that there shall be no upper limit to the number of permits to be issued for stage carriages and the second notification which says that <ORG> shall have regard only to matters referred to in clauses (a), (b),

(d) and (f) of sub-section (1) of section 47 of the Act and thereby precludes <ORG> to take into consideration matters contained in the proviso to section 47(1) and in sub-section (1A) to (1H) of section 47 of the Act are ultra vires the Act and they are liable to he struck down.

We, therefore, allow these appeals, set aside the judgment of <ORG> in each of these cases and declare that the Notification No. 68 T/XXX-4-15 KM/79 dated January 10, 1981 and the Notification No. 241 T/XXX-4-15- P/79 dated January 23,1981 issued by the GoverDmeDt of the State of Uttar Pradesh under section 447  43-A of the Act are ultra vires and, therefore, void and, ineffective.

In the circumstances of the case. there will be no order as to costs.

H.L.C. Appeals allowed.