Civil Appeals Nos
1178118076
Appeals by Special Leave from the Judgment and Order dated 22 9 1976 of the Madras High Court in Writ Petition Nos
3059 75 WA No 33976 and WP No 14 respectively
YS Chiale V Subramanyam and Vineet Kumar for the Appellant in CA 117876
KS Ramamurthi MN Rangachari AR Ramanathan K Thimmalai Jayaraman MML Srivastava and ATMS Sam path for the Appellant in CAs
1179 118076
VP Raman Addl
Gen In CAs
1178 to 118076 DN Misra JB Dadachanji for Respondent No 2 in CAs
1178  1180 of 1976 and Respondent 2 in CA 117976
K Parasaran Adv
Tamil Nadu AV Rangam T Sathiadev and Miss A Subhashini for Respondents in CAs
1179 80 except Transport Corporation
K Jayaram VT Gopalan and K Ram Kumar for the Appli cant and Intervener in CA 117876
The Judgment of AN Ray CJ and Krishna Iyer J was delivered by Krishna Iyer JMH Beg J gave a separate concurring opinion
KRISHNA lYER J A terse presentation of the twin con tentions canvassed before us in these appeals by special leave after discomfiture at two tiers below highlights the importance of the economic role of the State in undertaking with legal preferences strategic services vital to the community
The keynote thought underlying our decision is that the jural postulates of the old competitive order have to yield place to the new values of developmental jurispru dence
Public law in India responding to the public needs and the State s functional role mandated by the Constitu tion has evolved new approaches to old problems and given up dogmas which once prevailed during laissez faire days but now have become obsolete because of the welfare  economy which has been nurtured
This radical change in jural 394 perspectives has its impact on canons of statutory construc tion and on verdicts about the vires of legislation
All these generalities acquire appropriate application in the present cases which arise under the Act IV of 1939 the Act or short from challenges before the High Court without avail by private operators of the permit granted to the State Transport Undertaking STU by the transport tribunals
The validity of r 155A of the Motor Vehicles Rules framed under section 68 of the Act is in issue
The core of counsel s submissions is two fold 1 Is rule 155A assigning five marks for a State undertaking not family violative of s 47 of the Act Does the later amendment to the proviso to section 47 giving preference to State transport systems other things being equal impliedly repeal as contrary to its content rule 155A which gives better advantage to the favoured category fulfilling the spirit of the statutory amendment more tellingly  We will proceed further after stating the circumstances leading up to the writ petition before the High Court and the appeal before us
The appellants who have come by special leave to this Court are private stage carriage operators
We will relate the facts of one case Civil Appeal No 1178 of 1976 the decision in which will settle the fate of the rest the decisive point of law being identical
The permit of the appellants but on the route Salem to rode was to have expired on September 13 1974 and so he applied for renewal under section 582 of the Act
The respondent State Transport Undertaking objected to the renewal of the permit urging preferential grounds in its own favour
The State undertak ing s claim was upheld on the score that it secured higher marks computed with the aid of r 155 A Baulked in his application for renewal the appellant challenged the order before the Appellate Tribunal
Apprehending an adverse decision on the strength of r 155 A he filed a writ peti tion before the High Court praying that a direction be issued to the Appellate Tribunal to dispose of his appeal without relying on r 155 A
The plea was negatived by the learned Single Judge and a Division Bench dismissed the appeal therefrom
Aggrieved by the concurrent findings the appellant has assailed before us the vires of r 155 A as obnoxious to public interest excluding in some measure a fair competition and being contrary to the proviso to
section 47 1  of the Act
A meaningful discussion of the points debated at the Bar has to begin with a brief outline of the scheme of the in the branch relating to grant of permits for transport vehicles Chapter IV
All transport vehicles before they can be plied in any public place require per mits under section 42 and even government vehicles if put to commercial use have to possess permits
Applications are made for stage carriage permits under section 57 and the consid erations germane to their grant are set out in section 47 of the Act
It is common ground and decisions are legion in support thereof that the interest of the public generally is the super consideration decisive of the award  of permits when there is a plurality of applicants
He who can serve the public best gets the permit to ply the stage carriage from the quasi judicial authority charged with the responsi bility for choice
We may read the relevant part of section 471 here 395 Krishna Iyer J 47
Procedure of Regional Transport Authority in considering application for stage carriage permit 1 A Regional Transport Authority shall in considering an application for a stage car riage permit have regard to the following matters namely  a the interest of the public generally X X X X Provided that other conditions being equal an application for a stage carriage permit from any State Transport Undertaking or 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
X X X X The interest of the public generally is often times too vague and generally the exercise of discretion deserves to be canalised to guide the statutory bodies and to facilitate better appreciation by the applicants of the claims that may ordinarily be considered by transport tribunals
From this angle the Tamil Nadu State has framed rules
expressly subordinated to the paramount factor of public interest which shall weigh with tribunals when adjudging among com peting claimants This Court in Kumaraswamy1 summed up the purport of the rule thus The system of marks under the Rules framed under the Act by the Tamil Nadu Govern ment prescribes the various qualifications for applicants for permits for passenger transport under the 
Rule 155 A crystallises these considerations and describes them as guiding principles for the grant of stage carriage permits
The rule itself emphasizes what is obvious that the paramount consideration of the interest of the public as enshrined in Section 471 must be given full weight while awarding per mits
That means to say that the various factors set out in rule 115 4 are subject to section 471
This is clarified by sub rule 4 of Rule 155 A which runs thus After marks have been awarded under sub rule 3 the applicants shall be ranked according to the total marks obtained by them and the applications shall be disposed of in accordance with the provisions of sub section 1  of section 47
 There is no doubt that bus transport is calculated to benefit the public and it is in the fitness of things that the interest of the travelling public is highlighted while evalu ating the relevant worth of the various claim ants
 Rule 155A3D1 offends against the prescription in the proviso 1 396 to section 471  and is void according to counsel for the appellants
Before examining this alleged vice we may as well read sub rule 3 of Rule 155 A to the extent neces sary 3 After eliminating in the manner laid down in subrule 2 the applicants who are unsuitable marks shall be awarded for assessing the different qualifications of the remaining applicants for the grant of permits as follows  A Residence Two marks shall be award ed to the applicant who has his principal place of business or permanent residence at either terminus or on the route
Explanation
The term principal place of business  shall mean only the registered headquarters of the company and not the resi dence of the Managing Director or any other Director of the Company
B Technical qualification for Owner or Managing Director
Two marks shall be awarded to the applicant if the Owner or the Managing Director of the organisation has technical qualification which may be useful to run the transport service efficiently
C Workshop facilities
Two marks _shall be awarded to the applicant who is in possession of workshop facilities as given in Explanation under item 2iv
D i Five marks shall be awarded to the applicant falling within the proviso to clause c of section 62 A of the Motor Vehi cles Act 1939 ie State Government Cen tral Government or any Corporation or Company owned by the Central Government or State Government
ii The applicant who operates not more than nine stage carriages excluding spare buses shall be awarded marks as follows  1  Applicant operating one to three buses 4 marks
2 Applicant operating four to six buses 3 marks
3 Applicant operating seven to nine buses 2 marks
Provided that if a new entrant has made an application for a short route other than town service route no marks shall be awarded to any applicant under clause B C and D ii
 The ground of invalidation urged is that there is no justification for grant of 5 marks to an applicant falling within r 155A 3D1 solely for the reason that it is owned by the State Government
Ownership is irrelevant and the sacrifice of public interest at the altar of government interest is contended to be a flagrant partiality shown by the subordinate legislation in the teeth and transgressing the limits of the equal consideration implicit in section 471 
second argument 397 Krishna Iyer J is that the proviso to section 471 as amended by Act 48 of 1974 Tamil Nadu Amendment Act gives preference to a State Transport Undertaking other things being equal and im pliedly provides against any larger preference being shown to such an undertaking in the guise of rules
For this reason the generosity of the rule being contrary to the narrow preference in the proviso to the section brought in by later amendment the former cannot co exist with the latter and must be taken as impliedly repealed
Although this amendment to the Act was later than the promulgation of the rules the law as it stands today is the basis of our judgment
Thus the two question formulated right at the beginning of the judgment arise in the setting of facts and law we have broadly described above
It was urged by Shri Chitale followed by Shri Rama murthy in two of the several matters heard together that Part IVA provided for monopolistic award of permits to the State Transport Undertaking but Part IV put everyone on a competitive basis regardless of whether one was a State undertaking or not the most meritorious winning the battle in a free market economy
If the soul of Part IV were free competition not rigged  selection aid in the shape of extra marks given by rules had to be withdrawn and every applicant had to run without anyone being given a handicap in the race
State undertakings being awarded 5 grace marks for no reason except that they belonged to the State was a gross violation of the spirit and letter of section 4 7 1  which postulated the promotion of public interest as the basic consideration and the selection of the ablest as the criterion for choice
Both counsel in their overlapping arguments stressed that there was a negative mandate in the proviso to section 471 not to prefer a State undertaking save where other conditions were equal and if the State undertak ing was unable to attain the condition of equality with another its claim could not be promoted by the artifice of assignment of marks to a State undertaking qua State under taking
Public law in our pie bald economy and pluralist socie ty responds to societal challenges and constitutional changes
TO miss the ideological thrust of our Constitution and the economic orientation of our nation while construing legislation relating to public law and scanning them for their validity is to fail in understanding the social phi losophy that puts life and meaning into the provisions of the Act
The law being realistic reckons with the social ist sector covering State and co operative enterprises
The special status of a government owned transport undertaking in a Welfare State is obvious
It has large resources to cater to the traffic needs
It has within its range of influence and coordination
many services useful to the travelling public which may be beyond the reach of private ownership
Its functional motto is not more profits at any cost but service to citizens first and in a far larger measure than private companies and individuals although profitability is also a factor even in public utilities
Its sensitivity to community welfare and en couragement of labour participation its accountability to the Government the legislature and the public put it in a category by itself
It is socially conscious not profit obsessed
We are aware of the shortfalls of some public sector undertakings in some respects 398 but it needs little argument to hold that to classify State transport systems on a separate footing is realsic and is ordinarily no sin before the principle of equality before the law
The legislative body has done in the given circum stances what it thought was sound policy and we find no vice in the policy
To classify what is conceptually and operationally different into a separate category is intelligence not impertinence
The judicial art of interpretation and ap praisal is imbued with creativity and realsm especially where fundamental changes have been wrought by the Constitu tion in our approach to public sector enterprises
Legal Darwinism adapting the rule of law to new societal develop ments so as to survive and serve the social order is neces sary That court best serves the law which recognizes that the rules of law which grew up in a remote generation may in the fullness of experience be found to serve another genera tion badly and which discards the old rule when it finds that another rule of law repre sents what should be according to the estab lished and settled judgment of society and no considerable property rights have become vested in reliance upon the old rule
It is thus great writers upon the common law have discovered the source and method of its growth and in its growth found its health and life
It is not and it should not be station ary
Change of this character should not be left to the legislature
If judges have woefully misinterpreted the mores of their day or if the mores of their day are no longer those of ours they ought not to tie in helpless submission the hands of their successors Cardozo The Nature of the Judicial Proc ess Yale University Press pp
151 152
This refreshing perspective guides us to look at the submissions advanced
Both the contentions can be shot down by three considerations
Firstly a State enterprise in a truly Welfare State is charged with a social consciousness and responsibility for its citizens an attention to serve them and a willingness to embark on public utility undertak ings better to fulfil people s demands
The public sector enterprises are expected to be model employers and model servants planning their budgets subjecting themselves to public audit and criticism and inquest by legislative com mittees and the Houses of the legislature
Profits are their concern but more importantly public weal is their commitment
Such is the philosophy of the State sector in our socialistic pattern of society
Article 196ii and article 38 of the Constitution section 47 1  especially the proviso and Charter IVA of the Act now governed by the impregnable Ninth schedule to the COnstitution throw light on this policy of the paramount law
Here therefore the rule making authority having regard to all relevant circum stances has decided to award to a State Transport Undertak ing 5 marks
This is not an arbitrary stroke of favouritism because there are many promotional factors bearing on the interest of the travelling public which a State enterprise qua State enterprise will but a private enterprise qua private enterprise will not take care of 399 Krishna lyer J After all private enterprise has its primary motivation in profit although under State direction it is becoming socially responsive
The superiority in many respects not all respects of State Transport Undertakings in the legis lative judgment has led to r 155A
This classification has noetic nexus with and rational relation to the object of augmenting the good of the passenger community
The theory rooted in the obsolescent laissez faire economics that only cold competition among claimants to run businesses brings out the best operator has serious limitations in fields where the focus is on public service not gains of business
Public law adapting itself to this socio economic view shifts its emphasis
This is what we have earlier called legal Darwinism
We therefore hold that the assignment of marks under r 155A is geared to public interest which is the desideratum of section 47  1  of the Act
We now move on to an examination of the alleged fatal incompatibility between the proviso to section 471 and L 155A
This second submission of counsel is a trifle mystifying
There cannot be a contradiction without diction
Unless section 471 proviso carries a negative injunction that transport tribunals shall not give any other preferential considera tion than what is stated in it there cannot be any con flict between it and the impugned rule
The proviso to the section does nothing of the kind
It merely takes care of a specific situation
Where a State Transport Undertaking and a private operator are equally balanced the scales may be tilted in favour of the former
There is no implied inter dict that in other contingencies no preference shah be accorded
It is not a Thus far and no further 
Indeed the spirit of this proviso has been carried further by the rule having regard to the realities of the total transport system plying in the State
The third consideration which silences the appellant s charge of violation of section 47 is that the marking formula does not deprive the administrative tribunals of their discretion to choose the best
The consternation of the private entrepreneurs that by manipulating the marking mechanism the State undertaking regardless of its demons trable inferiority of public service will knock off all the permits paralysing the power of the Tribunal to pick and choose by the overwhelming and inevitable superiority of marks is misplaced
The fear is falsified if we read the rule aright
It has written on its face its own limita tion
Marks shall guide not govern the award
Full discretion to some extent canalised by the marking proce dure still vests in the Transport Authority
For the marks these authorities will remember sway the exercise of judgment not supersede it
It is conceivable that the pecularities of a route the calamitous performance in an area of a State transport system the outstanding spe cial facilities of a particular private operator or other like feature may outweigh the mechanics of marks
After all many qualifications advantageous to the travelling public may be thought of untouched by the rigid marking moulds
They are not irrelevant and may still be regarded by the tribunals
All this leads to the conclusion that marks shape but do not clinch the ultimate selection
The public is the consumer its plenary service is the final test
Therefore these is 400 nothing in r 155A deprivatory of the discretion vested by section 471This interpretative footnote must allay the appre hensions voiced by counsel
Nor are we convinced that there is no possibility of a private operator exceeding the mini mum marks of a State Transport Undertaking
Moreover the marking formula lacks flexibility
Merely because the State Transport Undertaking has no residence  or workshop on the route although its attention and ability to react are considerable why should it suffer a marks created handicap  There is equity in r 155A making up as it does for the present shortfalls in the marking system visa visa govern ment transport service
The appeals for these reasons must suffer dismissal
There will be no order as to costs
BEG J I agree with the conclusion reached by my learned brother Krishna Iyer
As arguments in this batch of cases seem to raise some questions which I speaking entire ly for myself consider to be really outside the sphere of the law which we have to interpret and apply I would like to make some observations on the implications of these questions argued after stating my reasons for agreeing with my learned brother
Mr Chitaley s first argument for some of the appellants raised only what may be described as normal legal ques tions of construction or interpretation there is some difference between these two allied processes as will appear from Crawfords Statutory Construction 1940 Edn Chapter 18 paragraph 157 to 158 pages 240 244 as to whether Rule 155A3Di reproduced in the judgment of my learned brother Krishna Iyer gives effect to or conflicts with Section 47 of the hereinaf ter referred to as the Act 
It was urged by the learned Counsel that what can be done only by resorting to Chapter IV A of the Act by framing a scheme for partial or complete nationalisation of the routes involved cannot be accom plished by framing a rule only ostensibly purporting to give effect to Section 471  of the Act or the proviso to it
In ultimate analysis the rule of construction relied upon by Mr Chitaley to make the last mentioned submission is Expressio unius est exclusio alterius
This maxim which has been described as a valuable servant but a dan gerous master per Lopes J in Court of Appeal in Colgu noun vs Brooks1 finds expression also in a rule formu lated in Taylor vs Taylor2 applied by the Privy Council in Nazir Ahmad vs King Emperor3 which has been repeat edly adopted by this Court
That rule says that an express ly laid down mode of doing something necessarily implies a prohibition of doing it in any other way
The maxim from which the rule in Taylor vs Taylorsupra is derived and the rule itself were discussed and explained by this Court in the Parbhani Transport Co operative Society Ltd vs the Regional Transport Authority Aurangabad  Ors 4 with specific reference to the argument advanced there that 1 at 65
2 at 430
3 1936 LR 63 IA 372
4  401 as Chapter IV A is meant for running its own buses by the State by nationalisation of Motor Vehicle Road Transport Services it was not open to the State to apply for per mits at all under Chapter IV of the Act which applies to private operators only
This argumentrepelled by this Court there has been put forward before us in a somewhat different and attenuated form by Mr Chitaley
Neverthe less the basic rule of interpretation submitted to us is the same as the one which was relied upon in this Court in the Parbhani Transport Co operative Society s case supra in an attempt to exclude the State Transport Undertaking altogether from entry into what was sought to be made out to be the exclusive preserve of private operators
Before us it is contended that exclusion of private operators could only be brought about by resorting to a duly framed scheme on appropriate grounds given in Section 68C of the Act but not indirectly by framing the kind of rule which has the effect of excluding private operators from the sphere of open competition which it is submitted postulates an ini tial equality of positions
This argument rests as I will indicate below on two erroneous assumptions firstly that Rule 155A3Di has the effect of excluding private operators and secondly that the proviso to section 471 compels the permit issuing authorities to postulate or start by assuming an equality of conditions as between private operators and a State Transport Undertaking
Indeed if they were to start with the assumption of equality they will have to give preference to the State Transport Under taking straightaway because that is what the proviso re quires
The mainstay of the arguments of learned Counsel for the appellants before us however is that Rule 155A3Di really has the effect of excluding the private operators altogether by making it impossible for them to ever obtain preference over the State Transport Undertak ing when it applies for a permit in competition against them
The reply on behalf of the State is that no exclusion of private operators is either intended or brought about by an application of Rule 155A3Di of the Act
On the other hand it is submitted that as an ordinary operator and a State Transport Undertaking are in many ways so unlike each other that unless five marks were assigned to each application of the State Transport Undertaking it could not compete at all on a fair and equal footing with pri vate operators who are able to obtain straightaway two marks for residential qualifications four marks if they are operating not more than three buses and two marks for workshop facilities
apparently the residential qualifica tion has reference to residence within the area in which the motor vehicles are to ply and marks workshop facilities are granted to operators who are able to show such facili ties on particular routes whereas the State Transport Undertakings it is pointed out will neither have a resi dence within such an area nor may be able to show in a particular case workshop facilities on particular routes even though they may have better workshop facilities on the whole
Again two marks are to be given to private concerns or organisations plying on particular routes if their owners or Managing Directors have certain technical qualifications
It is pointed out that as State Transport Undertakings do 402 not have individual owners or Managing Directors for whom these marks could be allotted even though they may have technically much better qualified personnel to attend to their motor vehicles the impugned Rule 155A3DD could be justified as meant only to place State Transport Under takings on a footing of possible equality with private operators in competing
for permits to be granted under Section 471 read with Section 423 of the Act and to do no more
Furthermore Rule 155A3Di occurs in a group for marks to be assigned on the basis of the number of vehicles run by the operators
In any case it was submit ted that it is a fair provision as a rough guide but is not decisive by any means
It seems to me that the conten tion advanced on behalf of the State that the impugned part of Rule 155A enables provisions of the proviso to Section 471 read with Section 423 to be worked a manner in which the statutory provisions were intended to overate and does not really authorise a circumvention or infringement of the provisions of Chapter IV of the Act is well founded
The manner in which provisions of Chapter IV of the Act were meant to operate in cases of competition between pri vate operators and State Undertakings was explained in the Parbhani Transport Co operative Society s case supra as follows at p 184 The Government has of course the power to do
any business it lies and therefore the business Of running stage carriages
We have earlier drawn attention to the change made in cl
a of section 423 by the amendment of 1956
Previously it was not necessary for the Government to obtain permits under section 421 for buses that it intended to run as stage carriages
SinCe the amendment the Government can no longer run transport vehicles for commercial purposes without obtaining permits under section 421 
Now the plying of buses as stage carriages is a commercial enterprise and for such buses therefore under the sections as they stand the Government would re quire permits as any one else
That being so the sections clearly contemplate that the Government may apply for and obtain permits for its buses run as stage car riages
The rule applied in Nazir Ahmad s case 1936 LR 63 IA 372 381 does not permit the ordinary meaning of section 42 sub
s1 and sub
s3 el
a to be cut down because of the provisions of Chapter IVA
The Act lays down two independent sets of provisions in regard to the
running of buses by the Government one under Chapter IV and the other under Chapter IVA
Chapter IVA was intended to give the Government a special advantage
When the Government chooses to proceed under that chapter it becomes entitled as a matter of right under section 68F1  to the necessary permits
Under Chapter IV the Government does not have any such advan tage it has to compete with other applicants to secure permits to be able to run its buses
The powers under the two
chapters are there fore different
To such a case the principle of Nazir Ahmad s case cannot be applied
403 Both Chapters IV and IVA enable plying of State transport as well as privately owned vehicles on hire on same routes but the grounds for these combined operations under the two chapters are different
The governing principle of Section 471 is to preserve as free and open a competition as possible in public interest whereas the reason for allowing private operators upon a nationalised route may be broader one of public policy which may favour a decision against sudden stoppage of privately provided motor trans port so as to avoid wastage of national wealth even though it takes the form of investments by individual entrepre neurs or its object may even be prevention of undue hard ship to private operators
Other reasons for permit ting combined services can be
given
It is however possible only under Chapter IVA to exclude private operators completely
But unless any rule relating to provision of motor transport under chapter IV has that effect it cannot be asserted that what can be done only by resorting to Chapter IVA is being attempted under the provisions of Chapter IV
The rule in Nazir Ahmad s case supra applies only to cases where there is a single specified mode laid down for doing something in exercise of the legal power to do it
In that event the specified mode may negatively operate as a prohibition against what is not prescribed at all and is outside the statute
But it could not apply to a case where two modes of doing the same thing are provided for by a statute itself
Nor as I have indicated above could it be said that what is to be done under Chapter IV and what can be done under a scheme under Chapter IVA are really the same simply because in a given case the results of both may appear to be similar or even identical
Mr Ramamurthi appearing on behalf of some of the appellants embarked on quite an ambitious argument built upon an elaboration of the theme that Chapters IV and IVA belong to two different fields or spheres of action which cannot so to speak be allowed to mix overlap or collide
It was contended that the waters of what are in the eye of law two different streams of activity must not be allowed to mingle
If 1 am not mistaken even the word pollute was used in the flow of arguments to describe possibly in a light vein the alleged inequity of an invasion by a State Transport Undertaking of the supposedly exclusive preserve of private enterprise
It was suggested that such a result would involve pollution of the domain of open competition which is forbidden territory for State Under takings introduced as a consequence of another ideology or sphere of action found in Chapter IVA
It seems to me that to hear such an argument advanced even in a lighter vein is really rather surprising in view of the language of the statute and welt known facts to which it is related
It is quite well known that ours is what is known as a mixed economy
The highest norms of our law are embodied in our Constitution
Article 196ii of the Constitution clearly contemplates the carrying on by the State or by a Corporation or controlled by the State of any trade business industry or service whether to the exclusion complete or partial of citizens or
otherwise
And in order to fulfil the objectives of the Preamble
to our Constitution the Constitu 404 tional mandate contained in Article 39c of the Constitu tion which the State has to carry out may make it impera tive upon the State in appropriate circumstances either to take over or nationalise motor transport on roads in any region or area completely or to supplement the Transport Services provided by private operators with those provided by the State
It seems to me that neither Chapter IV nor Chapter IV A can be really put into two separate water tight compartments so as to make it imperative either to exclude State Transport Undertakings from operating under the provi sions of Chapter IV or to exclude private operators when a scheme under Chapter IV A which may itself provide for only a partial exclusion of such operators is in force
In the face of the clear words of proviso to Section 47 1  of the Act enabling State Transport Undertakings to provide Transport facilities in open competition and of Section 68C in Chapter IV A of the Act enabling the exclusion complete or partial of private operators from particular areas or routes such an argument cannot be put forward at all before us under some preconceived notions even after these very notions had been rejected by this Court in the Parbhani Transport Co operative Society Ltd s case supra
It is clear that the two chapters of the same Act are both intended to subserve the interest of the public gener ally in any area in the country That is the integrating or governing principle evident from the language of the Act itself in both Chapter IV and Chapter lV A of the Act
An argument advanced on behalf of the appellant seemed to be that Rule 155A3Di results in defeating the mandate of Section 471 of the Act that the Regional Transport Authority must as explained repeatedly by this Court keep the interest of the public generally in the fore front
As already indicated by me this argument really proceeds on the erroneous assumption that the mere fact that the State Transport Vehicles are given five marks would defeat public interest by excluding consideration of all facts except that the State Undertaking has applied for one or more permits on a particular route
As my learned brother Krishna Iyer has also pointed out this is an unwarranted assumption
Rule 155A gives only guidance but the totality of factors men tioned in Section 471 really decide
It was suggested on behalf of the State Transport Under taking that the obvious capacity of a State Undertaking to provide facilities which are beyond the reach of private operators that its actions are subjected to such constant vigilant and rigorous control on behalf of the public and that it is bound to be so free from any desire to make profits by sacrificing public interests or convenience of passengers that even if nothing else was considered these presumed advantages would justify the award of five marks on each application of the State Undertaking for a permit
If this line of reasoning was completely accepted and car ried to its logical conclusion the provisionor giving five marks to each application of the State Undertaking would become quite otiose or unnecessary because in that case the State Undertaking would by relying merely on a presumed superiority for purposes of Section 47 1  get a prefer ence automatically
The proviso to Section 47 1  of the Act would then apart from making it clear that the State Undertaking can also apply for permits for which 405 purpose Section 423 was enough serve no useful purpose
Indeed if such a view were to be accepted the first part of the proviso to Section 47 1  would seem to rest on a false premise because there could be no case in which other conditions could ever be equal as between a State Transport Undertaking and a private operator
The State Transport Service would in that case always get a prefer ence
For this reason I do not think that this line of reasoning could be pushed too far
It has to be assumed in view of the opening words of the proviso to section 47 1  that there may be cases in which an application of the basic principle contained in Section 47 1 of the Act may tilt the balance either in favour of the State Undertaking or the private operator
The proviso applies only where the State Undertaking could  reasonably be deemed to be in a position of equality as regards comparative advantages offered by it
As there cannot between such dis similar operating units be comparability of conditions or advan tages offered unless some rule is flamed and applied which could make comparison reasonably possible it seems to me that Rule 155A3 Di is justifiable on the ground that it makes what is legally contemplated and permissible also practicable
The proviso
to Section 47 1  reads as follows Provided that other conditions being equal an application for a stage carriage permit from any State Transport Undertaking or a co operative 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
 An examination of this proviso shows that an
equality of other conditions is contemplated before any question of giving preference merely on the ground that the applicant is the State Transport Undertaking or a Cooperative Society can arise
If other conditions are equal then undoubted ly the choice as between such equals must if the proviso is to be given effect be made in favour of the State Trans port Undertaking or a Cooperative Society automatically
That is how in such a case See
471 itself would be deemed to operate
The validity of the proviso is not challenged
Even if Article 14 were available for an attack upon it as it is not during the current emergency it is clear that the State Transport Undertaking does stand in a separate category
Therefore it could be found entitled for obviously good and intelligible reasons to preference over private operators other conditions being equal
The narrow ques tion before us
Thus appears to me to be nothing more than whether the impugned part of Rule 155A sub serves or vio lates the proviso
The proviso itself is meant to explain what public interest as visualised by Section 471 re quires
Hence it appears to me that the validity of the impugned part of Rule 155A could be determined on purely legal grounds as a necessary corollary of the proviso to Section 471
The impugned part of the Rule is there to make the proviso workable and not to defeat its provisions
406 It is however becoming increasingly fashionable to start with some theory of what is basic to a provision or a chapter or in a statute or even to our Constitution in order to interpret and determine the meaning of a particular provision or rule made to sub serve an assumed basic requirement
I think that this novel method of construc tion puts if I may say so the cart before the horse
It is apt to seriously mislead us unless the tendency to use such a mode of construction is checked or corrected by this Court
What is basic for a section or a chapter in a stat ute is provided firstly by the words used in the statute itself secondly by the context in which a provision oc curs or in other words by reading the statute as a whole thirdly by the preamble which could supply the key to the meaning of the statute in cases of uncertainty or doubt and fourthly where some further aid to construction may still be needed to resolve an uncertainty by the legislative history which discloses the wider context or perspective in which a provision was made to meet a particular need or to satisfy a particular purpose
The last mentioned method consists of an application of the Mischief Rule laid down in Heydon s case long ago
If we start from a theory as to
what the real purpose or need is or could be the danger is that we may be inject ing a subjective notion or purpose of our own into what is after all a legal question of construction or interpreta tion according to well recognised principles although it may be necessary in exceptional eases to explain or forti fy the interpretation adopted in the light of so well under stood and
well known a purpose or theory that we could take judicial notice of it and refer to it
The exposition of the well known purpose or theoretical foundation must however generally flow from and explain an interpretation adopted on the strength of legally acceptable and accepted canons of construction if we are to avoid the danger of an a priori determination of the meaning of a provision based on our own pre conceived notions of an ideological structure or scheme into which the provision to be interpreted is somehow fitted
The path of judicial certainty and predictability has to be paved with well settled principles of construction and interpretation
We cannot let it develop into a slippery slope be set with hazardous possibilities
The science of statutory construc tion and interpretation I think can call it that rests on certain systematised principles and rules of common sense logic and reason
It can not be transformed into a happy hunting ground for whatever may captivate the forensic or judicial fancy or become something akin to poetry without even the attractions of euphony
For the reasons given above I find that on an applica tion of the ordinary and well recognised rules of interpre tation without resorting to any of the novel methods suggested by some of the arguments of learned Counsel for the appellants the impugned part of Rule 155A3 Di is valid
I therefore concur with nay learned brother Krishna Iyer and hold that the connected appeals and peti tions before us must be dismissed
MR Appeals dis missed


Summary:
The appellants private stage carriage operators applied for the renewal of their expiring bus permits
The re spondent State Transport Undertaking objected urging preferential grounds in its own favour claiming to have secured higher marks with the aid of r 155 A of the Motor Vehicles Rules
The State Transport Undertakings claim was upheld
The appellants moved the appellate Tribunal and also filed a writ petition before the High Court for direc tions to the appellate Tribunal to dispose of his appeal without relying on r 155 A
The writ petition was dismissed by a Single Judge and an appeal before the Division Bench also failed
In appeal by Special Leave the appellants assailed the validity of r 155 A the grounds of its being partial to the Government against public interest and contradicting the proviso to section 471 of the 
Dismissing the appeals the Court HELD Per Krishna Iyer J for himself and on behalf of A N Ray CJ 1
The assignment of marks under r 155 A is geared to public interest which h the desideratum of section 471 of the Act
This is not an arbitrary stroke favouritism because there are many promotional factors bearing on the inter est of the travelling public which a State enterprise qua State enterprise will but a private enterprise qua private enterprise will not take care of
There is equity in r 155 A making up as it does for the present shortfalls in the making system vis a vis a government transport service
398H 399B P Kumaraswamy vs State Transport Appellate Tribunal Madras  referred to
The Court observed Legal Darwinism adapting the rule of law to new socie tal developments so as to survive and serve the social order is necessary
398B Cardozo The nature of the Judicial Process Yale Uni versity Press pp 151 152 relied upon
There cannot be any conflict between section 471 proviso and the impugned rule
The proviso does not carry any negative injunction that transport tribunal shall not give any other preferential consideration than what is stated in it
There is no implied interdict that in other contingen cies no preference shah be accorded
The proviso merely takes care of a specific situation
Moreover
the mark ing formula does not deprive the administrative tribunals their discretion to choose the best 399C E Per HM Beg 1
Concurring Where there is a single specified mode laid down for doing something exercise of the legal power to do it the specified mode may negatively operate
393 Krishna Iyer J as a prohibition against what is not prescribed at all and is outside the statute
But expressio unius est exclusio alterius could not apply ot a case where two modes of doing the same thing are provided for by a statute itself
Here both chapters IV and IV A enable plying of State transport as well as privately owned vehicles on hire on same routes but the grounds for these combined operations under the two chapters are different
403A C D Parbhani Transport Co operative SOciety Ltd vs The Regional Transport Authority Aurangabad  Ors
  applied
Nazir Ahmad vs King Emperor 1936 LR 63 IA 372 distin guished
Colquhoun vs Brooks at a 65 Taylor vs Taylor at 430 and Crawfords Statuto ry Construction 1940 Edn Chapter 18 paragraphs 157 to 158 pages 240 244 referred to