MANU/SC/0381/1970

Equivalent/Neutral Citation: AIR1970SC 1102, 1970(2)AnWR98, 1970 INSC 15, (1970)1SC C 443, (1970)1SC C (C ri)196, [1970]3SC R505

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 397, 400-402, 404-417, 422-441, 451, 1158 to 1161, 1176, 1178 to
1181, 1204, 1207 and 1407 of 1969
Decided On: 05.02.1970
A. Sanjeevi Naidu and Ors. Vs. State of Madras and Ors.
Hon'ble Judges/Coram:
M. Hidayatullah, C.J., A.N. Ray, I.D. Dua, J.C. Shah, K.S. Hegde and A.N. Grover
Counsels:
For Appellant/Petitioner/Plaintiff: K.K. Venugopal, K.R. Nambiar and A.S. Nambiar, Advs.
and (in C.As. Nos. 397, 400 to 402, 422, 423, 441 and 451 of 1969, M.C. Chagla and V.
Subramanian, Advs.
For Respondents/Defendant: Niren De,Attorney General (in C.A. No. 397 of 1969), S.V.
Gupta,, Adv. (in C.A. No. 400 of 1969) and A.V. Rangam,, Adv. (in C.A. Nos. 397, 400,
401, 402, 404 to 417, 422 to 441, 451, 1158 to 1161, 1176, 1178 to 1181, 1204 and
1407 of 1969)

JUDGMENT
K.S. Hegde, J.
1. 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
proposed to be nationalised. A draft scheme of nationalisation has-been prepared and
published under Section 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 Article 226 of the Constitution.
Incidentally the validity of some of the provisions of the amending Act XVIII of 1968
(Madras Act) also came to be challenged in those petitions. A division bench of the
Madras High Court consisting of Anantanarayanan C.J. and Natesan J. have dismissed
those petitions. As against the decision of the High Court these appeals have been
brought on the strength of the certificates issued by the High Court.
2 . 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 Section 68(C) of the Act was not formed by the State Government but by the
Secretary to the government in the Industries, 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 hereinafter referred to as the Rules'). The contention
of the appellants is that the said rule is ultra vires the provisions of the Constitution.
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, a valid rule. It is
the correctness of that conclusion that is primarily in issue in these appeals.

17-06-2025 (Page 1 of 6) www.manupatra.com KC Law College

3. Section 68(C) prescribes :
Where any State transport undertaking is of opinion that for the purpose of
providing an efficient, adequate, economical and properly co-ordinate 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 partial of other persons or
otherwise, the State transport undertaking may prepare a scheme giving
particulars of the nature of 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.
4 . This section requires that the State transport undertaking must form the opinion
contemplated therein. In the State of Tamil Nadu, the State transport undertaking is a
department of the State government. 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 opinion 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 same could not have been formed by the Secretary who
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 (Article 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 (Article 163(1)) but the
Governor can make rules for more convenient transaction of the business of the
government of the State and 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, (Article 166(3)). A 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 business. 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 functions
arising under the Act. Further the Governor could into have allocated any business to a
Secretary. Hence in making Rule 23(A), the Governor exceeded the powers conferred on
him under Article 166(3).
5. On the other hand, it was urged on behalf of the State of Tamil Nadu that originally
the functions under the Motor Vehicles Act had been allocated to the Home Department
but when Mr. Annadurai 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 allocated 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 Vehicles 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 of the business. On behalf of the government, it was further urged
that Article 166(3) has two parts namely (1) rules for the more convenient transaction
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
17-06-2025 (Page 2 of 6) www.manupatra.com KC Law College
of 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 Article 166(3). Hence its validity is not open to
question.
6 . The impugned Rule 23(A) was introduced for the first time by G.O.Ms. No. 2715
Public dated 22-12-67. Under Sub-clause (1) of that rule, it is provided that powers and
functions which State transport undertaking may exercise under Section 68 (C) of the
Act shall be exercised and discharged on behalf of the State government by the
Secretary to the Government of Madras in the Industries, Labour and Housing
Department. The rule further provides that cases relating to such powers and functions
of the State transport undertaking under Section 68 (C) need not be submitted to the
Minister in-charge. Under Sub-clause (2) of that rule, the powers and functions of the
State government under Section 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
Department.
7. Rule 4 of 'the Rules' deals with allocation and disposal of business. It provides that
the business of the Government shall be transacted 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 a Minister but the proviso to that rule says that nothing in that rule shall prevent the
assigning of one department to the charge of more than one Minister. Rule 6 prescribes
that each department of the secretariat shall be under a Secretary who shall be the
official head of the department. Under rule 7, the Council of Ministers constituted under
Article 163(1) is held collectively responsible for all the executive orders issued in the
name of the Governor in accordance with rules, whether such orders are authorised, by
an individual Minister on a matter pertaining to his portfolio or as a 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 a 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 disposal
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 "f
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.
8 . The first question that has to be decided is whether the functions under the Motor
Vehicles Act had been assigned to Mr. Karunanidhi, the Minister for Transport. It is true
that when the various departments were reorganized in 1961, Motor Vehicles Act as well
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 allocated to the Transport Minister.
Motor Vehicles Act as such was not allocated to any Minister. The allocation of business
17-06-2025 (Page 3 of 6) www.manupatra.com KC Law College
among the various Ministers appears to have been made under broad heads. In 1961
while allocating subjects to the various departments there was a detailed and exhaustive
enumeration of the subjects. But that method was not adopted in 1967 while
distributing 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.
9. 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 Section 68 (C) of the Act to the Transport Secretary by making a
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).
10. It was urged on behalf of the appellants that the parliament has conferred powers
under Section 68 (C) of the Act to a 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 delegated its statutory
functions to any one else. The government means the Governor aided and advised by
his Ministers. Therefore 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 discharged by any one else, then the doctrine of
ministerial responsibility which is the very essence of the cabinet form of government
disappears; such a situation is impermissible under our Constitution.
1 1 . We think that the above submissions advanced on behalf of the appellants are
without force and are based on a misconception of the principles underlying our
Constitution. Under our Constitution, the Governor is essentially a Constitutional head;
the administration 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-article (3) of Article 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 government. 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. Apart from allocating
business among the Ministers, the Governor can also make rules on the advice of his
Council of Ministers for more convenient transaction of business. He can. not only
allocate the various subjects amongst the Ministers but may go further and designate a
particular official to discharge any particular function. But this again he can do only on
the advice of the Council of Ministers.
12. The cabinet is responsible to the legislature for every action taken in any of the
ministries. That is the essence of joint responsibility. That does not mean that each and
every decision must be taken by the cabinet. The political responsibility of the Council
of Ministers does not and cannot predicate the personal responsibility 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 a political responsibility and into personal responsibility. Even
the most hard working minister cannot attend to every business in his department. If he
attempts to do it, he is bound to make a mess of his department. In every well planned
17-06-2025 (Page 4 of 6) www.manupatra.com KC Law College
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 programmes of his ministry while the Council of Ministers settle the major
policies and programmes of the government. When a civil servant takes a decision, he
does not do it as a delegate of his Minister. He does it on behalf of the government. It
is always open to a Minister to call for any file in his ministry and pass orders. He may
also issue directions to the officers in his ministry regarding the disposal of 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.
13. In Emperor v. Sibnath Banerji and Ors. construing Section 59(3) of the Government
of India Act, 1935, a provision similar to Article 166(3), the Judicial Committee held
that it was within the competence of the Governor to empower a 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 Kalyan Singh v. State of U.P: this Court repelling the contention that
the opinion formed by an official of the government does not fulfil the requirements of
Section 68(C) observed :
The opinion must necessarily be formed by somebody to whom, under the rules
of business, the conduct 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 notification was issued. It is not denied that
the Secretary of the said Department has power under the rules of business to
act for the State Government in that behalf. We, therefore, hold that in the
present case the opinion was formed by the State transport undertaking within
the meaning of Section 68 (C) of the Act, and that, there was nothing illegal in
the manner of initiation of the said Scheme".
14. In Ishwarlal Girdharlal Joshi etc. v. State of Gujarat and Anr. this Court rejected the
contention that the opinion formed by the Deputy Secretary under Section 17(1) of the
Land 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 :
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 Section 6, the urgency of the matter and the existence of waste and
arable lands for the application of Sub-sections. (1) and (4) of Section 17. In
view of the Rules of business and the Instructions their determination became
the determination of Government and no exception could be taken.
15. In Capital Multi-purpose Co-operative Society v. State of Madhya Pradesh and Ors. ,
this Court dealing with the scope of Section 68 (D) of the Act observed that the State
Government obviously is not a 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 conferred on him by the business rules framed
under Article 166(3) is a valid hearing.

17-06-2025 (Page 5 of 6) www.manupatra.com KC Law College

16. As mentioned earlier in the very nature of things, 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 and decisions taken by various
officials at various levels." When those officials discharge the functions allotted to them,
they are doing so as limbs of the government and not as persons to whom the power of
the government had been delegated. In Halsbury Laws of England Vol. I 3rd Edn., it is
observed :
Where functions entrusted to a Minister are performed by an official employed
in the Minister's department there is in law no delegation because
Constitutionally the act or decision of the official is that of the Minister.
17. Similar view has been expressed in "Principles of Administrative Law" by Griffith
and Street. That is also the view taken by Sir Ivor Jennings in his "Cabinet
Government".
18. For the reasons mentioned above, we are of opinion that the functions 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 Section 68 (C) of the Act.
19. 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 scheme. 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 questions.
20. In the result these appeals fail and they are dismissed with costs--hearing fee one
set.
© Manupatra Information Solutions Pvt. Ltd.

17-06-2025 (Page 6 of 6) www.manupatra.com KC Law College