3 S.C.R.

. SU~REME COURT REPORTS 105

The contention urged before us is that this provision has no retrospective operation and that in consequence t.he proceedings which had been pending before the old Tribunal on March 10, 1957, could not be transferred to the new Tribunal under thi" section. This content.ion is clearly untenable, because the whole object of s.30(2) is to provide for the hearing of disputes which were pending before the old Tribunal, and its operation is entirely retrospective. This contention must therefore be rejected.

In the result, the repeal fails and is dismissed with costs. "

A ppe, al dismissed.

SRI SATYA NARAIN SINGH

DISTRICT ENGINEER, P.W.D. AND ANOTHEli

(B. P. SINHA, J. L. KAPUR, M. HIDAYATULLAH, J. C. SHAH and J, R. M:uDHOLKAR, JJ.)

Pu.blic ferry--Toll-Right to coUe<t from Governrnent Roadway JJuses-Co nmercial undertaking by Government, if public service-Hotijication No 252/IX-209/ (10) dated March.

JG, 1925-Northern India Ferries Act, 1878 (XVII of 1878) • 15.

The appellant being the highest bidder at a public auc tion got the right to collect the toll in respect of ferry for crossing the river of Piprighat for the year 1954. The'practice upto 1954 wa.• to allow the licensee to collect the toll from every stage carriage bus.

Till March of the year 1954 only privately owned stage carriage buses used to ply on the route.

Thereafter the route \\'as taken over by the Roadways department of the State of Uttar Pradesh. The applicant was informed 1'.nter alia that no toll \vas leviablc on the Roadways Vehicles and was asked to pay the monthly instalments of the 1ictnse fee without making any deduction therefor consequent upon the exemption of the Roadways buses from tolls. The point for consideration foter alia is whether tii~

Thi Atlus Cycl1 lndnJtries. Ltd,,

Sonepat

Their Workmen

Venkatarama

Aiyar J.

1962.

Februaty II.

S1i Saij'a N arai11

i11gh

•• Di.1tric1 Enginttr,

l'.lf'.O.

Muilwlkar J.

106 sePREME COCRT n.EP01{'f8 (HJ62] SCPP.

appella11t was bouru.l tu allo\\'. the state carriage buses 0f U.P.

Governrncnt tu cross the river by ferry \Vithout collecting any toll.

/leld, that the notification No. 252/IX-209/( 10) dated March 16, 1925 exc1npts a vehicle crossing the river on 'public or district board service', an<l it could not be said that plying motor busrs by way of comn1ercial activity is n1nning it on a public service. 'l'he vcluclcs of the lload,, ays depart mcnt of the Gover11mc11t of Uttar Pradesh crossing over ferries cannot be regarded as crossing on public service.

It may be that plying stage carri<lge buses rvcn though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable. 1node of tr:lnsport and is in that sense beneficial to the public, but it does not cease to be a co1nn1crcial activjty if it is run with 1profit mo1ive.

The vehicles of the Road, vays crossing the river cannot be exempted under the l'iotification of March 15, 1925.

Jleld, further that activities undertaken in the exercise of the sovereign power of the state or of Governn1enta} functions arc undoubtedly to be regarded as public services bul a pure business undertaking though run by the Govcrninent cannot be classified as pubJic service.

An activity however beneficial to the people and hov\'cvCr useful cannot reasonably be regarded as public service an<l cease to be a commercial undertaking if it is of a type \\'hich n1ay be carried on by private individuals ahd is carried on by Government \\'ith a distinct profit rnotivc. lly reason of the fact that a co1nmercial undertaking is O\'tncd and run by the State, it docs not ipso fachJ Uccome a "public service".

Crvn. APPELLA'rE Ju1mm!C'nox: C. A. No. 4:J5 of 1958.

Appeal from the judgment and order dated September :10, 1!156 of the Allahabad High Court in

pectal Appeal Xo. 243 of 1955.

Naunit Lal for the appellant.

G. N. Dikshit and C. P. Lal for tho 1-tespondent.

1962. February 8.

The following Judgment of the Court was delivered by

:\IuDHOLKAR, J.-This is an appeal by certificate from tho judgment of the High Court of

Allahabad reversing the decision of a single Judge of that Court directing the issue of a writ of Mandamus against the respondents under Art. 226 of the Constitution. The points which arise for consideration in the appeal are whether the appellant who was at the relevant time the lessee of a right to collect tolls from persons, vehicles etc., crossing the river by public ferry at Pipraghat, District Ballia was bound to allow State carriage buses belonging to the Government of Uttar Pradesh to cross the river by the ferry without collecting any toll or was entitled to claim abatement of rent from the Government under the proviso to s.15 of the .Northern India Ferries Act 1878 (hereafter referred to as the Act).

In order to appreuiate the points a few facts need to be stated. There is a ferry at the village Pipraghat, district Ballin for crossing the river and the right to collect tolls in respect of that ferry is put to public auction annually. The highest bidder at the auction gets the right.

The rent or licence fee is collected from him in monthly instalments during the year with respect to which the right was purchased by the licensee. The appellant was the highest bidder for the year 1954 and the licence fee payable by him was Rs. 31,751/·. The practice right upto 1954 .was to allow the lessee to collect a toll of Rs. 5-1-0 from every stage carriage bus. Till March 9 of tha.t year only privately owned stage carriage bt1ses used to ply on the route in which the ferry crossing was comprised.

Thereafter the r0ute has been taken over by the Roadways Dapartment of tha State of Uttar

Pradesh. From March 9 to March 16, the appellant realised tolls at Rs. 5.J.O from the State-owned stage carriage buses when he was informed by a ]13tter by the first respondent that he should allow the Roadways buses to use the ferry for crossing and recrossing the river on credit till March ill, 1954 and should thereafter submit his bill with

Sri Satya Narain Singh v.

District En.e, inrer,

P. W.D.

J1.udholkar J.

'-'ri Sa:ya Nt.rain 8i11gh

•• Di!trid E11ginttt,

P. W. D.

.ll 11dhol kar .J;

108 SUPRR:\fE COURT REPORTS [1962] £UPP.

respect to the tolls to the Roa<lways Department of the Government_\He was also informed that further

or<lers will he issmd on April I, 19ii4.

The a.ppella nt accordingly a I low< cl the H.oad ways buses to use the ferry for erosing and rP-r-rossiug the rivor and submitted his bill to the Roadways Department on J\Iarch :ll, HJ, i.i.

That bill was, howover, not paid.

On April I, I !);";.i he received two communications from respondeut no. I by one of which ho was iufo1 med that no toll is leviab.le ou the Roadways vehieles an<l by another he was asked to pay the mouthlv instalment of t.he liccnc<' foe without making. auy deduetion therefor consequent upon the exemption of tho Roadways busrs from tolls.

The appellant had move<l the High Court of Allahabad under Art. ~26 of tlw Constitution fur the issue of a wt it directing the respondent "to refrain from precluding the pditioner from charging tolls from the Hoadwavs hus1s"', to issue a writ comm:inding the respon; lents to ;; llow a batcmt>nt to tlw appellant and to issun rm int1l'im direction to the respondents asking tht!m to refrain from rcalis

ing the unpaid monthly instalments of the licence fees till the decision was gi1",11.

Before the petition was decided the appellant's licence had run out and, therefore, at the hearing the appellnnt confined himself to one relief, tha, t id, commanrling the rnspondcnts to allow rebate une account of the excmp tion of the Roadw:iys buses from liability to pay the tolls. The petition W•L<, however, not amendP-d.

We may incidentally mention that 11part. from the

relief,; a.bo\'C referred to, the appellant clrdmed two more reliefo, one of which was to pass any such

oth•-r and further order as may be 1lc1nwd fit and proper.

The learned single , Judge of t.he High Court

h,9 decided the petition ill the first instance cme

~ S.C.R. SUPBEMJ1J COUBT REPOBTS lO!:J

to the conclusion that the appelhnt was entitled to abatement of rent under the third paragraph of s.15 of the Act and directed the issue of a writ tu the respondents directing them to "perform their statutory duty relating to abatement of rent" payable by the appellant consequent on the exemption ofBoad-

Wll, JS buses from payment of tolls under the aforesaid provision before claiming or recovering arrears of rent from him.

The respondents preferred an appeal under the Letters Patent which was heard by a Division Bench of the Allahabad High Court.

The learned Judges held that a licensee is not entitled to abatement of rent unless the Government makes a declaration under s.15 of the Act subsequent to the grant of licence to him. It pointed out that the G.O. No. 1946/17-,') l dated December 11, 1951 upon which reliance was placed by the learned single Judge being prior in point uf time to the grant of the licence to collect tolls to the appellant, did not entitle him to claim abatement. It, however, held that the appellant may be entitled to claim abatement of rent or licence fee under the general law but that such a relief could be claimed only in a suit but not in a proceeding under Art. 226 of the Constitution.

They thus allowed the appeal and dismissed the petition.

Section 15 of the Northern India Ferries Act, 1878 runs thus:

"Toll, according to such rates as are from time to time fixed b} the State Government, shall be levied on all persons, animals, vehicles and other things crossing any river by a public ferry and not employed or transmitted on the public service: Provided that the State Government may from time to time, declare that any persons, animals, vehicles or other things shall be exempt from payment of such tolls .

Sri Satya Jllarain

8ingh

DiBtrict Engi111er1

P. lV. D.

Mudhollcar J.

Sri "aty.i Na rain

Sir.gh

Dirtrict f~'neintn,

p_ IF. D.

!rludlw/kar J,

I 10 SUPREfE COIJR.T REPORTS [1962] SUPP.

. \VherP the tolls of a. ferry have been let under sction 8, any such decl>iration, if made

nftr the date of the lease, shall entitle the ]Pssce to such abatement of the rent payable in rc8poct of tho tolls as may be fixed by the . Commisioner of the division or such other officer as tho :qtatc Government may, from timp, to time, appoint in this behalf by 11ame or virtue of his office." The proviso to the section confers upon the State Govp, rnment power to declare from time to time any persons, anima Is, vehicles etc., exempt from p'\yment of such tolls.

Before the question of allo\\'imr ahatement of rnnt or licence fee can arise it must first ho est.ah!ishod that there was a valid exempt.ion with respect to any vehicles etc., under s. 15 of the Act.

The section also provides that where such declaration is ma.de sub- 8equent to the grant of licence to colloct tolls under s. 8 the licensee is entitled to abatement of rent.: The Government order to which reference has been made in th<> two judgments of the High Court runs as follows:

"Subject: Exemption from payment. of toll.

I am dt•sircd to sa:v that a question ha.a hecn raised whether the Roadways Motor v., hicles should be exempt from payment of

forrv tolls while crollSing any river by a

public ferry.

Government have given their full consiclera.t.ion to this matter and havti come to the conclusion that the motor vehicles run by the Road\\'ays with the operational fitaff 'accompanying them on duty fall under the exemption granted from payment of frrry toll in paragraphs 2(a) of notification no. 252/-fX.20!J/(10) dated March 16, Ul25

(published on page 347 of the District Board Manual). . 2.

I am, however, to observe tbat the passengers travelling in these vehicles with their goods and all the private goodF, being tans ported in the Roadways trucks shall be hable to the payment of tolls as heretofore according to the rates fixed by the Local Government. 3.

The District Magistrate, District Board and ferry contractors in your division may please be informed accordingly.'' It may be pointed out that this order, if what appears to be merely a communication addressed to certain authorities can be regarded as a Government order, does not itself confer any exemption with respect to the buses run by the U. P. Roadways but sets out. the opinion of the Government that such buses must be regarded as being exempted under a notification of March 16, 1925 issued under s. 15 of the Act. That notification reads thus:

"2. The following shall be exempt from the payment of tolls:

(a) All persons animals and vehicles crossing -tny river by a public ferry when employed or transmitted on the public or District Board service."

Admittedly at that date thn State was not running any bus services in the IJnited Provinces (now the State of Uttar Pradesh). May be there were no Government-owned buses at all in any other province of India at that time. Moreover it would not be reasonable to assume that a State enterprise of this kind was even in the contemplation of the U. P. Government nt that time. At that time, apart from running some railways the

Stiite had not entered the commercial field.· It is in the light of these facts that the language of the notification of March 16, 1925, must be interpreted.

196Z

Sri Satya Narain

Singh

Dislrict Engineer,

P.W.D.

M u.dholkar J,

Sri Satya .1\'aroi11

Sm.r; h

"· Diilrict E11Ji11tt1,

P. W. D.

Mudholkar J.

ii2 SUPREi\IE COtJRT HEPORTS [l!l62] surP.

What the notification exmpts is <L vehicle crossing the ri1cr on 'pulilic or diHtrict board service'.

Could it be said that plying motor buses liy wa~· of commercial activity is running it 011 a public service? It is undoulitedly not easy to define what is "public s•?rvice" and rach activity has t.o he

consiriered by itself for dciding whether it is carried on as a public service or 11ot.

Certain activitil'B will undoubtedly he regarded as public services, as for instance, t.hose undertaken in the exercise of thl: sovereign power of the State or of governmental functions.

About these there can be no doubt. Similarly a pure business undertaking though rnn by the Government cannot be classificd as public service.

But whern a particular activity concerns a public utility a question may aiise whether it falls in the first or the second category.

The mero fact that that activity may be useful to the public would not necessarily render it public service. An activity howe\•er beneficial to the people and however useful cannot, in our opinion, he reasonably regarded as public service if it is of a typu which may be carried on by private individuals and is carried on by government with a distinct pn>fit motive. It may be that plying stage carriage buses even though for hire is an acthity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of tranoport and is in that sense henrficial to the public. It does not, however, cease to be a commercial activity if it is run with profit motive.

Indeed even private operators in order to attract custom are also interested in providing the samo facilities to the public as the Government under-· taking provides. Since that is so, it is difficult to see what difference there is between the activity

carried on by private individuals and that carried on by Government. By reason of the fact that a commercial undertaking is owned and run by the State

\ -

it dos not ipso .facto bepome a 'public service'. It is not disputed before us that the Roadways department of the Government of U. P. is running a profit making and a profitable activity by excluding every kind of competition. In the circumstances, therefore, we find it impossible to hold that its vehicles crossing over ferries can be regarded ltB crossing on public service. They are, therefore, not entitlec'I to any exemption under the notification of March 15, 1925. Since thev are not entitled to any exemption the question of abatPment of rent does not arise.

It is true that the petitioner, as already stated, confined himself at the sfa ge of ar1rnments in the High Court to the relief of abatement because of change of circumstances which took place between the date of filing his petition and its hearing. He did so evidently upon a misundAr

standing of the legal position with regard to the scope of the notification of March 16, l!l25.

How ever, the appellant has raised an alternntive con tention in his Statement of the case to the effect that the Roadways buses which carry passengers are used by the Government for carrying on a commercial undertaking '1.nd that; therefore they do not come within the exemption made by the noti fica ti on of the year 1925.

In view of this and of the fact that the petition which contains a prayer for grant of 'other relief' has not been amended and is thus in its original form we see no difficulty in granting appropriate relief to the appellant.

In the result we allow the appeal and set a•ide the judgment of the Division Bench as well as of the single judge of the High Court of Allahabad and direct that a writ in the nature of mandamus shall issue to the respondents directing them to pay to the appellant full tolls with respect to every

196t

Sri Satya Narai'i

Sint, h

"· District Engineer,

P. W.D.

Mudholkar J.

Sri Sntya .1Va1ain

Sill th

Dist1ict Enginr:<r,

P. W.D.

Mudholkar J,

Ftbruary fl.

114 SUPRE:IIE COURT REPORTS [.962] St.:I P.

crossing of the' Roadways buses over t.he ferry betwe<'n l\farch 16, 191">4, and the dnto on which the licence in favour of the appellant expired. • The costs of the appellant here and in the High Court will lrn borne by the r•,8pondents.

Appeal allou:ed.

IXDER LAL v.

LAL SINGH

(P. B. GA.JJ::>DRAC:ADKAU, A. K. SARKAU e.ncl

IC N. \VANCHOO, JJ.)

Elccfion~--Cornpf Praclicr-Faf.i; e statement in relatt'on to 7ir.u; o11al 1;/ir1ractcr ()Y r:onducl of canitidaU-StaU.nient alleging ]Htrr}, osing of iof-es-lj tf'dales to pi.rsonal charactr:r-Rcpresnla rion of II" l'eop!c Act, 1951 ( 4:J of Jli:jl), "· 123 (4).

Respondent I was declared rlected to the Legislative Asscrnbly. llis election \\'as challenged, inter a./ia, on the ground that he had committed the rorrupt practice under s. 123 (4~ of the Rep"sentation af People Act, 1951 of making false statements in relation to the personal character or conduct uf H.espo11dent 2, a defeated candidate. The staterrcnts "ere rontained in a pamphlet issued by the agent of Respondent I ,, ith his consent.

Among other statements the patnphlct contained a false statement that the Respondent 2 \\'as ''purchasrr of the cpponents of the Congress hy rncans of moneyn.

Respondent I cont, nded that the staten1ent related to the public: or political character of Respondent 2 an<l not to his private character and did not fall within the mischief of s. 123 (4).

!If-Id, that the statement rlated to the personal character of l{t"spondent 2 and Respondent 1 "'"as guilty of thr. corrupt practice under s. 123 (4) of the Ar.t. The offending staternent amounted to an allegation that Respondent 2 bought the votes of the opponents of the Congrcs by offering bribes.

Bribery \Vas itself a corrupt practice and an allegation of bribery involved moral t11rpitude anrlclearly and unfquivocally affected the private character of Respondent 2.