Whether the failure on the part of the State to take into consideration, the public

opinion before enactment of the Policy constitutionally appropriate and valid, and if
not, was the same grave enough to challenge the entire Policy?

I) It is most Humbly submitted before the Hon’ble Supreme Court of Indisia that, The
Cabinet minister, Ministry of Road Transport and Highway has enacted the said alleged
subordinate legislation1 by exercising their power of delegated legislation under the
Constitution.2 However, the said authority has failed to take public opinion/consultation
which makes it important to check the legality of a subordinate legislation and whether
enforcing such policy without taking any opinion from the general public or without
consulting from those whose rights are likely to get affected is valid or not.

The hasty procedure which the executive authority has adopted to bring the vehicle scrappage
policy has failed to take consultation of the people whose rights are getting affected due to
the enactment of the policy, which makes the whole procedure ultra vires, unreasonable,
arbitrary and unconstitutional and therefore needs to be struck down by this court.

NON-COMPLIANCE WITH CONSTITUTIONAL PROVISION

It is Submitted before this Hon’ble court of Indisia that the Ministry of Road Transport and
Highways has not complied with section 212 of The Motor Vehicles Act 1988 which
prescribes the pre-publication of any rule or notification to seek objection or suggestion from
the affected person.

Section 212 of the Motor vehicle Act lays down certain obligation which must be carried out
before publishing any rule under Motor vehicle act. It says, (1) the power to make rules
under this Act is subject to the condition of the rules being made after previous publication,

The Object and Reasons provided under this clause provides for pre-publication of rules
which shall come into force from the date such publication and the rules made by the Central
Government shall be placed on the table of the Parliament.3

The Term Publication Refers - to the act of publishing anything; offering it to public notice,
or rendering it accessible to public scrutiny, an advising of the public and making known of
something to them for a purpose.4

1
Moot Prop.
2
https://knowindia.india.gov.in/profile/the-union/executive.php
3
Kannan & Vijayaraghavan: Motor Vehicles Laws, 16th ed
4
State of M.P. v Ram Ragubir Prasad Agarwal, AIR 1979 SC 888
The actual meaning of the word Previous publication was discussed in the of Automobile
Transport Rajasthan Pvt Ltd v State of Rajasthan as “Previous publication means (1) the
authority concerned must publish a draft of the proposed rules or bye-laws for the
information of persons likely to be affected thereby;……. (4) the said authority must then
consider any objections or suggestions which may have been received before the specified
date, and (5) then after all these requirements have been fulfilled, the rules, or the bye-laws,
as the case may be, as finalized, must be published in the Official Gazette; and a certain
presumption then arises under section 23(5), General Clauses Act, 1897, that the rules or
bye-laws have been duly made.”5

Thus, in the very same case when at the time of pre-publication of the Rajasthan State Road
Transport Service (Development) Rules, 1959, sufficient time for filing objections was not
given, The Court held that, “said rules were not validly made for want of substantial
compliance with the provisions of section 133 of the MV Act, 1939 read with section 23 of the
General Clauses Act, 1897.”

There mere purpose of publishing the rules in the prescribed manner and by making it
available to the general public is to make the public aware about the changes which are being
brought by the new legislation. But at the same time, it is necessary to give reasonable
opportunity to those, whose rights and interests are getting affected by taking objections or
suggestions. The current policy has been brought without consistent with the provisions of
the parent act which makes the whole procedure ultra vires and arbitrary.

The Petitioner further submits that in the case of Sukhalal Munda vs State Of Odisha the
court observed that basically ultra vires character of an Act may be two-fold, (i) simple ultra
vires, and (ii) procedural ultra vires.

(i) Simple ultra vires- An act may be said to acquire the character of simple ultra vires when
the person does the act in excess of the power conferred on him.

(ii) Procedural ultra vires- Procedural ultra vires may happen when there is a failure to
comply with mandatory procedural requirements. All procedural requirements as laid down
by statute should be complied with.

5
Automobile Transport Rajasthan Pvt Ltd v State of Rajasthan AIR 1962 Raj 24
This doctrine refers to not only the lack of power to do any act but also to any situation like
improper or unauthorized procedure, purpose or violation of the law of natural justice in
exercising the power that is lawfully conferred on the authority concerned.

The Petitioner further submits that in the case of Shrilekha Vidyarthi and Ors. v. State of
U.P. and Ors. (AIR 1991 SC 537), this court observed that the meaning and true import of
arbitrariness is more easily visualized than precisely stated or defined. The question, whether
an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the
circumstances of a given case. An obvious test to apply is to see whether there is any
discernible principle emerging from the impugned act and if so, does it satisfy the test of
reasonableness. Where a mode is prescribed for doing an act and there is no impediment in
following that procedure, performance of the act otherwise and in a manner which does not
disclose any discernible principle which is reasonable, may itself attract the vice of
arbitrariness. Every State action must be informed by reason and it follows that an act
uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by
humour, whims or caprices of the men to whom the governance is entrusted for the time
being. It is trite that `be you ever so high, the laws are above you'. This is what men in power
must remember, always." In the present matter the government has failed to follow the
mandatory procedure laid down by the parent act and thus making this policy arbitrary.

The Petitioner further submits that, this Hon'ble court in the case of Ajay Hasia v. Khalid
Mujib Sehravardi (1981) 1 SCC 722, the court held that wherever there is arbitrariness in
State action – be it of the legislature or of the executive or of any “authority” under Article
12, Article 14 must immediately spring into State action to strike down such state action.
Article 14 is meant to strike back at arbitrariness because any action that is arbitrary involves
negation of equality. In fact, the doctrine of classification is not the end of the objective of
Article 14. It is meant merely to determine whether or not the legislative or executive action
in question is arbitrary and therefore, it is a judicial formula to constitute the denial of
equality.

This Hon'ble Court in E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3 observed that
where an Act is arbitrary, it is implicit in it that it is unequal both according to political logic
and constitutional law and is, therefore, violative of Article 14."
Therefore, it is submitted that in the present matter the failure of state to take public opinion
before enactment of the Vehicle Scrappage Policy is unconstitutional and invalid and it
violates the fundamental rights guaranteed by the Constitution of Indisia.

Section 23 of the General Clauses Act, 1897.

As per section 23 of the General Clauses Act, 1897, when the Act requires publication of
draft rules, the following criteria have to be satisfied 1) draft rules have to be published in the
Official Gazette; and 2) the authority shall publish the draft rules for information of affected
interests so as to take any objection or suggestion by consultation and the government should
consider them while finalizing the rules.6 Thus, in a similar case of Rajeshwar Kumar Gupta
v. Lt. Governor and Others7 where a Notification regarding DCT Rules, 2006 was challenged
on the basis that it was neither framed nor published in the Gazette. Moreover, the rules were
not published with a prior notice inviting objections or suggestions from the persons affected
thereby as required by section 23 of General Clauses Act. The court prima facie striking
down the said notification held that the notification is apparent transgression to the procedure
of General Clauses Act, 1987.

Also, in another case of A.T. Rajasthan Pvt. Ltd. v. State of Rajasthan8 of Rajasthan HC,

which was later reaffirmed by the 7-bench SC judgement, the Divisional Bench of High
Court had occasion to consider this aspect of the matter in connection with S. 133(1) and
(2) of the Motor Vehicles Act, 1939. The division bench observed that.
“previous  publication meant that the authority concerned should publish a draft of the
proposed rules and/or bye-laws for the information of persons likely to be affected thereby.
The manner  of  publication was left to  the authority concerned unless it had been otherwise
prescribed by the government. Along with the draft rules a notice must also be published
specifying a date on or after which the draft was to come up for consideration. The
authority must then consider any objection  or suggestion which might have been received
before the specified date. And after all these requirements had been fulfilled
the rules or  the bye-laws as the case might be are finalised must be published in the official
gazette and then the presumption under sub-s. (5) of S. 23  of  the General Clauses Act arose
that the  rules had been duly made.” The Same observation has been made in the case of

6
Section 23 of the General Clauses Act, 1897
7
Rajeshwar Kumar Gupta v. Lt. Governor and Others 2009 SCC OnLine Del 469
8
A.T. Rajasthan Pvt. Ltd. v. State of Rajasthan AIR 1962 Raj 24
Brojendra Kumar Saha v. Union of India9, Munna Lal Tewari v. H.R. Scott10 and Sukhalal
Munda v. State of Odisha.11

It is certain from the above two judgements that the procedure and requirements prescribed
under General Clauses act, 1897 is not complied before enacting the alleged policy. It is
mandatory to publish the draft of law or by-law in public domain and thereafter to take
objection and suggestion from the person who are likely to get affected due to the same. It is
submitted that the requirements given under section 23 of the General Clauses act, 1897 are
not complied by the delegating authorities before enacting the alleged policy.

Therefore, this court has the requisite power and jurisdiction to strike down the policy as
done by the court in the above judgements.

It is clear from the previous submission how section 212 of the Motor Vehicle Act, 1988 and
Section 23 of the General Clauses Act, 1897 makes it a mandatory statutory requirement to
take such consultation before enacting any rule or law. The Ministry of Road and Transport
has failed to comply with the provisions of section 212 of MVA and Section 22 of GCA,
which makes the whole procedure arbitrary and unreasonable and therefore constitutionally
invalid.

Infringement of Rules of Natural Justice.

It is Submitted before the Hon’ble court of Indisia that, the failure on the part of the Ministry
to enforce the alleged policy is in contradiction with the rules of natural justice as no prior
opinion or consultation of the affected persons is taken before the enforcement.

The concept of natural justice though not provided in the Constitution of Indisia but it is
considered as necessary element for the administration of justice. Court in order to prevent
abuse of power and to check on their limits has evolved the principles of natural justice as
important safeguards against injustice. The object of natural justice is to secure justice to the
citizens and prevent contempt of justice. Decisions which violate the natural justice shall
stand null and void.12

9
Brojendra Kumar Saha v. Union of India, AIR 1961 Cal. 217
10
Munna Lal Tewari v. H.R. Scott, AIR 1995 Cal. 45
11
Sukhalal Munda v. State of Odisha, 2017 SCC OnLine Ori 205
12
Nature and Concept of Administrative law, Prof Narender Kumar.
Although the view taken earlier was that principle of natural justice applies only to judicial
and not to administrative proceedings, but today it is universally accepted that they apply to
“almost the whole range of administrative powers”13

Recently, in Canara Bank Vs. V.K. Awasthy , the concept, scope, history of development and
significance of principles of natural justice have been discussed in extenso, with reference to
earlier cases on the subject. Inter alia, observing that the principles of natural justice are those
rules which have been laid down by the Courts as being the minimum protection of the rights
of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-
judicial and administrative authority while making an order affecting those rights, the Court
said :

"14. Concept of natural justice has undergone a great deal of change in recent years. Rules
of natural justice are not rules embodied always expressly in a statute or in rules framed
thereunder. They may be implied from the nature of the duty to be performed under a statute.
What particular rule of natural justice should be implied and what its context should be in a
given case must depend to a great extent on the fact and circumstances of that case, the
frame- work of the statute under which the enquiry is held. The old distinction between a
judicial act and an administrative act has withered away. Even an administrative order
which involves civil consequences must be consistent with the rules of natural justice.
Expression 'civil consequences' http://www.judis.nic.in 33 OF 62 W.A.No.1995 of 2018
encompasses infraction of not merely property or personal rights but of civil 'liberties,
material deprivations, and non- pecuniary damages. In its wide umbrella comes everything
that affects a citizen in his civil life."

Principles of natural justice are those rules which have been laid down by the courts as being
the minimum protection of the rights of the individual against the arbitrary procedure that
may be adopted by a judicial, quasi-judicial and administrative authority while making an
order affecting those rights. These rules are intended to prevent such authority from doing
injustice.14

It is a settled law that a policy must be mandatorily published in public domain before
enactment, otherwise it’ll lead to violation of principle of natural justice of affected
individual, as laid down in the case of Harla v. State of Rajasthan.15 However at the same
13
Ridge v. Baldwin, 1964 AC 40
14
The Collector vs K. Krishnaveni W.A.No.1995 of 2018
15
Harla v. State of Rajasthan AIR 1996 SC 3445
time the authority must consult stakeholder or the person or group of persons whose rights or
interests are likely to get affected due to the said rule or policy.

Thus in a similar case of State of Assam v. Kalabhandar where a notification issued by the
executive under the defence of India rules 1962 notified certain employments as essential
“for securing the public safety and for maintaining the supplies and services necessary to the
life of the community, another notification relating to Order of payment of specific cost of
living allowance to all workers drawing pay up to Rs 400 per month and also to worker
employed on daily wages in essential services. No question about hearing in the case of the
former notification was raised. However, about the later notification, which prima facie a
large number of persons and could thus be characterized as legislative. The SC took the view
that “it was necessary to consult the interest affected before its issue as its effect was to
disturb settled industrial relation whether based on contract or industrial awards.”16

The situation in the current case is nowhere different where no prescribed procedure is
followed regarding the pre-publication of the draft of policy to take raise objection or any
suggestion by the affected group or individual.

The principle of participatory democracy.

There have been many instances where the Court has emphasised on the principle of
Participatory democracy in law making process.

Indisia is a democratic Country and recognizes Principle of participatory democracy. Though

the constitution does not speak about the participatory democracy, but a holistic
understanding of the dispensation envisaged under our Constitution would reveal that we are
a representative democracy with strong elements of participatory democracy embedded in it.
The element of participation, however, is regulated not only by statutes but also by the
Constitution.17

In a democracy, disclosure of full information is empowerment and acts as an enabler for

meaningful participation. Granting open access to information also secures the goal of
transparency to which all public institutions are wedded.18

The Supreme court of Indisia while observing on the participation, had observed “The
objectives of Participatory democracy are not only to bring governance closer to the people,
16
State of Assam v. Bharat Kala Bhandar Ltd., (1967) 3 SCR 490
17
Rajeev Suri v. Delhi Development Authority and Others 2021 SCC OnLine SC 7
18
Supra.
but also to make it more participatory, inclusive and accountable to the weaker Sections of
society....”19

The court in the case of Rajeev Suri v. Delhi Development Authority and Others, pointed out
the 3 main features of participation of public in law making, it says, “the participation itself
involves three features – the stage, the extent and the nature of participation. The extent and
quality of permissible participation is dependent upon a multitude of factors including, but
not limited to, the stage of procedure, nature of subject matter, number of affected persons,
local conditions, geography, strategic importance of project, budgetary allocations for the
project etc. The subject matter of a development project having no direct bearing on lives
and livelihoods cannot be equated with a project which has a direct impact upon their lives
and livelihoods.”20

Similarly, in Cellular Operators Association of India, this court consciously referred to U.S.
Administrative Procedure Act and Corpus Juris Secundum to observe that it would be a
healthy function of our democracy, if all subordinate legislation, subject to some well-
defined exceptions, are made by transparent process together with explanatory
memorandum; after due consultation is held and the rule and regulation making power is
exercised after due consideration and by giving reasons for agreeing and disagreeing with
the concerns. This would be conducive to openness, improved governance, and would also
take care of most grievances and thereby reduce litigation. These observations may not be
binding dictums enforceable in law, but should be effectively applied when the legislation
itself mandates and requires public participation, thereby making it a worthy and
meaningful exercise.

In the present case not only the rights and interest of middle-class citizens are getting affected
due to non-prior consultation while making the policy, but as a result it also causes financial
disruption on their lives which is direct infringement of right to livelihood under Art. 21. The
Ministry of Road transport and Highways has failed to take prior-consultation or opinion
from these categories of people by excluding them from the law-making procedure which is
ultra vires to the principle of Democratic participation.

Consequence of failure of consultation before enacting the policy.

19
K. Krishna Murthy and Ors. v. Union of India (UOI) and Anr. (2010) 7 SCC 202
20
Supra.
It is submitted before this hon’ble court that, the consequence of failure to consult people
where it was mandatory to consult the people whose rights and interests were affected due to
the policy will make the policy arbitrary and therefore ineffective and invalid.

The court in catena of Judgement has held that, where prior consultation was a mandatory
statutory requirement, the law which is laid down without such consultation or without
fluffing such requirement is arbitrary and invalid.

Thus, in a similar case of Bamearilal Agarwalla v. State of Bihar 21, where certain regulations
were framed under section 59(3) of the Mines Act, 1952 without prior consultation as
required under the section. the Supreme Court held that the provision under Section 59 of the
Mines Act requiring consultation with the Mining Boards by the Central Government before
framing regulations was mandatory. Therefore, the regulations are invalid as the mandatory
provisions are not complied.

Another loophole in the alleged policy is that, it does not provide estimated assessment of the
impact of such legislation on environment, fundamental rights, lives and livelihoods of the
concerned/affected people which is mandatory requirement according to the pre-legislative
Consultation Policy.

It is Submitted that the Supreme Court in the case of Indian Express Newspapers (Bombay)
(P) Ltd. v. Union of India by observed that,

“75. A piece of subordinate legislation does not carry the same degree of immunity which is
enjoyed by a statute passed by a competent legislature. Subordinate legislation may be
questioned on any of the grounds on which plenary legislation is questioned. In addition it
may also be questioned on the ground that it does not conform to the statute under which it is
made. It may further be questioned on the ground that it is contrary to some other statute.
That is because subordinate legislation must yield to plenary legislation. It may also be
questioned on the ground that it is unreasonable, unreasonable not in the sense of not being
reasonable, but in the sense that it is manifestly arbitrary."22

In references to the above judgement, it is very clear that, the Executives while exercising
their power of Delegative legislation has failed to comply with the mandatory statutory
provision. i.e., Section 212 of MVA and Section 23 of the GCA. As no prior opinion was
taken or no consultation of affected person was don before the enforcement of the policy.
21
Banwarilal Agarwalla v. State of Bihar, (1962) 1 SCR 33
22
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641
which makes the task of this court very easy to declare this policy as invalid as unreasonable
and arbitrary and uunconstitutional.

CHALLENGING THE ENTIRE POLICY.

It is most humbly submitted before this Hon’ble Supreme Court of Indisia that, the
notification under the Vehicle Scrappage Policy serves the fundamental principles of the
whole policy. The procedure adopted by the government while in acting the said notification
was ultra virus. It is arbitrary in nature and unconstitutional. The Government has failed to
not take into consideration the public opinion before enacting the policy and the same is
grave enough to challenge the entire policy as it is procedural ultra to the parent act and the
general law and therefore needs to be struck down as unconstitutional.

That a statute or a policy decision could be struck down as unconstitutional only when those
who have the right to make it have not merely made a mistake, but have made a very clear
one, so clear that it is not open to rational question.( The Tamil Nadu Electricity Board vs
Tamil Nadu Electricity Board ... on 28 January, 2005)

The policy decisions of the executive do not enjoy any constitutional immunity. That any
policy decision, which is inconsistent with the Constitution and the laws is susceptible to be
judicially reviewed. If the policy decision is inconsistent with the laws or arbitrary or
irrational or due to abuse of power, is liable to be struck down. (T. Muralidhar Rao vs State
Of A.P. And Ors. On 21 September, 2004)

Thus, it is submitted that, in a similar case of Banwarilal Agarwalla v. State of Bihar where
Section 59 of the Mines Act, 1952 empowered the Central Government to frame regulation
which were referred to the Mining boards in draft form for reporting about their expediency.
It was held that, reasonable opportunity was to be given to take objection or suggestion as
mandated by the parent act. Failure to comply with this procedure is ultra vires.23

In another case, of Raza Buland Sugar Co. Ltd v Municipal Board, The chief justice
Gajendragadkar, J. Wanchoo And J. Raghubar Dayal while aboserving the meaning and
objective of Section 131(3) of UP Municipality Act, 1916 held that,

“the section can be divided into two parts the first one providing that the proposal and draft
rules for a tax intended to be imposed should be published for the objections of the public, if
23
BanwaruLal v. State of Bihar [1961] AIR 58 (SC).
any, and the second laying down that the publication must be in the manner laid down in Sec
94(3), Considering the object of the provisions for publication-namely to enable the public to
place its viewpoint before the Board it is necessary to hold that the first part of the section is
mandatory, for to hold otherwise would be to render the whole procedure prescribed for the
imposition of taxes nugatory. The second part of the section is, however, merely directory.”24

It is submitted that, section 212 of the MVA is also on the similar footings and also talks
about mandatory publication of the draft rules. Thus, publication and consultation are the
mandatory statutory requirement of the MVA as clear from the previous submissions.

Therefore, from the above case of Raza Buland Sugar Co. Ltd v Municipal Board It can be
very well concluded that, the statutory requirement is not met before the enactment of the
vehicle scrappage policy which makes it ultra vires not only to the parent act but also to the
general statute i.e., The General Clauses Act, 1897. Thus, on the similar footing this court
should declare the whole policy void and unconstitutional.

Skeleton

1. Summary
2. Pursuant to the vehicle scrappage policy the notification dated 23 rd 2019 was issued.
3. The notification was issued under the powers conferred by Section 59 of the MVA
4. [RULE] That a notification enacted under the powers conferred by a parent statute, the
authority enacting the notification shall comply with the procedure stated within the parent
act, non-compliance of which shall render the notification procedurally ultra vires.
5. What is ultra vires? What is the effect of declaring something ultra vires.
6. [ANALYSIS]In the present case the notification issued by the Ministry pursuant to the parent
Act, that is the MVA has failed to comply with the procedure within the Act.
7. Section 212 states, what is the scope of Section 212, the nature of obligation to comply,
8. The ministry was mandatorily obliged to follow the procedure within 212, that is to publish
draft rules within public domain inviting objections from the public but has failed to comply
with that procedure.
9. The direct and proximate effect of such non-compliance render the notification procedurally
ultra vires to the MVA.
10. The grounds to challenge as per the wednesbury principle – irrationality, illegality and
procedural impropriety.
11. The state action qualifies as illegal one.
12. Any state action that suffers from illegality is tainted with the vice of arbitrariness.

24
Raza Buland Sugar Co. Ltd v Municipal Board 1965 AIR 895, 1965 SCR (1) 970
13. Arbitrariness is antithetical to equality and therefore, the non-compliance of the procedure,
renders the state action tainted with the vice of arbitrariness. And hence violative of article
14 of the constitution.
14. Was the same grave enough to challenge the entire policy?
15. The object of the Vehicle scrappage policy
16. The object of the notification.
17. the purpose that the enactment seeks to achieve has to be construed with the legislative
policy
18. The invalidation of the notification shall render the operation of the vehicle scrappage policy
nugatory, insofar as the policy cannot function without the existence of the notification.
19. Hence, the challenge shall constructively invalid the operation of the whole policy