Ranjan Gogoi, J.
1. In exercise of the referred jurisdiction vested in us on a reference being made by a Division Bench of this Court, the following two questions are required to be answered :
(1) Whether a private vehicle can be requisitioned under the Act; and
(2) Whether a scooter or a motorcycle will come within the definition of vehicle as given under Section 3 of the Act.
2. The present reference has been made in the following circumstances.
A Division Bench of this Court in the case of Hemanta Kumar Sarma and Ors. v. State of Assam and Ors., reported in (1991) 1 GLR 52 has held that the power of requisition of vehicles under Section 3 of the Assam Requisition and Control of Vehicles Act, 1968 (herein after referred to as 'the Act') would not extend to private vehicles and the Division Bench had, accordingly, read down the provisions of Section 3 of the Act to exclude private vehicles. Another Division Bench of this Court hearing the present writ petition having taken the view that the law laid down in Hemanta Kumar Sarma (supra) needs reconsideration, the matter has been referred to a larger Bench and that is how we are in seisin of the two questions reproduced above. This Bench, in answering the questions referred, particularly the first question, would, therefore, be required to deal with the correctness of the view expressed in Hemanta Kumar Sarma (supra) in so far as the power to requisition private vehicles under Section 3 of the Act is concerned.
3. Before proceeding to understand and appreciate the views of the Division Bench in Hemanta Kumar Sarma (supra) and the basis on which the provisions of Section 3 of the Act were read down to exclude private vehicles from the ambit of the power of requisition under Section 3 of the Act, it may be apposite to put on record the specific provisions of the Act which would have a relevant bearing to the instant matter. Sections 2(e), 3, 4 and 5 would be relevant for the purposes of the present case and, therefore, the aforesaid provisions of the Act may be usefully extracted herein below :
2.(e) 'vehicle' means any vehicle used or capable of being used for the purpose of transport of persons or goods upon roads or inland waterways, whether propelled by mechanical power or not.
3. Power to requisition vehicles. - (1) If in the opinion of the State Government it is expedient so to do for purpose essential to the life or the community or for maintaining public order or for facility of public transport, it may pass an order in writing requisitioning any vehicle and may make such orders as may appear to it to be necessary or expedient in connection with such requisition.
(2) The State Government may requisition any vehicle by serving on the owner thereof, or where the owner is not readily traceable or the ownership is in dispute, by publication in the official Gazette, an order under Sub-section (1).
(3) If the owner of the vehicle does not, after service of the order in the manner provided in Sub-section (2), place the vehicle in the possession of the officer or authority mentioned therein, such officer or authority may seize the vehicle from any person who may for the time being be in possession thereof.
(4) Where the State Government has requisitioned any vehicle it may use or deal with it in such manner as may appear to it to be expedient.
4. Payment of compensation. --(1) Whenever in pursuance of Section 3 the State Government requisition any vehicle, there shall be paid to the owner such compensation as may be determined by the State Government.
(2) While determining compensation under Sub- section (1), the State Government shall take into consideration --
(a) the model, make, type, class and condition of the vehicle ;
(b) the loss of earning, if any, sustained by the owner by reason or requisition ; and fix the compensation at such rate as the State Government may deem fair.
(3) The compensation fixed under Sub- section (2) shall be paid by the officer or authority shall not be bound to pay any dues outstanding or mortgages and other encum brances of the requisitioned vehicle.
5. Release from requisition. - (1) The officer or authority requisioning a vehicle may, at any time, release the vehicle from requisition and when it is decided so to do, a notice in writing shall be served on the owner to take delivery of the vehicle on or with such date and from such place and such person as may be specified therein.
(2) With effect from such date no further liability for compensation or payment of any other kind shall lie with the officer or authority requisioning the vehicle :
Provided that such officer or authority may make such further payment on account of compensation for any material damage done to the vehicle during the period of requisition, as assessed in the manner mentioned in Sub- section (2) of section 4 of this Act.
(3) The delivery of possession of the vehicle to the owner or his accredited agent shall be a full discharge or any liability of the State Government to deliver possession thereof but shall not prejudice any right in respect of such vehicle which any other person may be entitled by due process of law to enforce against the person to whom possession of the vehicle is so delivered.
(4) If the owner fails to take delivery of the vehicle on or within the specified date the officer or authority who passed the order to release the vehicle may dispose of the same thereafter :
Provided that such officer or authority shall be competent to allow to the owner such extension of times as he/it may deem proper without any liability for any compensation or other payment for the period of extension.
(5) The disposal of vehicle under Sub- section (1) shall be by public auction and at the risk of the owner and the sale proceeds shall be made over to the owner after deducting any expenditure incurred by the officer or authority releasing the vehicle due to the owner not taking delivery of it on or within the specified date.
4. In Hemanta Kumar Sarma (supra) the Division Bench of this Court after an elaborate consideration of the above noted provisions of the Act took the view that having regard to the different situations in and the purposes for which, a private vehicle may be required to be put to use by the owner thereof, if Section 3 of the Act read with Section 2(e), notwithstanding the language used, is construed to confer a power to requisition a private vehicle, Section 3 of the Act will be an arbitrary legislative exercise. In this regard the Division Bench relied on the decisions of the Apex Court in the case of Ajay Hasia v. Khalid Mojib reported in : (1981)ILLJ103SC and in the case of Maneka Gandhi v. Union of India reported in : [1978]2SCR621 . Consequently, the Division Bench held that Section 3 of the Act must be read down not to apply to private vehicles and private service vehicles. In doing so, the Division Bench in Hemanta Kumar Sarma (supra) further relied on an Apex Court judgment in the case of Jagdish Pandey v. The Vice Chancellor, University of Bihar and Ors., reported in : [1968]1SCR231 . A judgment of this Court in the case of Heramba Kumar Sarma v. State of Assam reported in (1990) 1 GLR 1 was also relied upon in this regard.
5. Having noticed the basis of the decision rendered in Hemanta Kumar . Sarma (supra), we may now proceed to analyse to the correctness of - the view expressed in the said judgment insofar as the power to requisition private vehicles and private service vehicles is concerned in order to answer the questions that have been referred to us.
6. The jurisdiction of the court to examine the validity of a legislative exercise, though, is a natural concomitant to the power of judicial review vested in the higher judiciary by the provisions of the Constitution, is a rare power which has to be exercised with the greatest of circumspect keeping in mind the necessity of maintaining the delicate balance of powers between the three organs of the State as enshrined by the Constitution. Broadly speaking, the lack of legislative competence judged from the standpoint of the provisions contained in the Seventh Schedule to the Constitution ; violation of the fundamental rights guaranteed under Part-III of the Constitution or violation of any other provisions of the Constitution can be said to be the exclusive situations where a legislative exercise can be declared null and void. Insofar as the present case is concerned, the legislative competence to frame the provisions of the Act is not an issue. What has been held by the Division Bench is that the provisions of Section 3, if are to be read to include a power to requisition private vehicles, would be an arbitrary exercise. Arbitrariness of a legislative exercise is not to be readily inferred. Neither is such arbitrariness to be judged on the basis of individual perceptions of the Judge. A legislative exercise becomes arbitrary only if it confers wide, uncontrolled and unfettered powers on the executive without indicating the parameters for the exercise of the power conferred and in the process fundamental rights of the citizens are infringed or the Constitutional philosophy mandated by the provisions thereof are affected.
7. In the light of what has been stated in the preceding paragraphs we may now proceed to analyse the provisions of the Act insofar as the situations in which the power to requisition can be exercised as well as the manner of such exercise. While doing so, we must take note of the detail consideration made by the Division Bench in Hemania Kumar Sarma (supra) in this regard. The power of requisition vested by Section 3 of the Act has to be preceded by the formation of an opinion that requisition of a vehicle is necessary or expedient -
(1) for the purpose essential to the life of the community ; or
(2) for maintaining public order ; or
(3) for the facility of public transport.
The opinion of the requisitioning authority must naturally be arrived at on a consideration of the materials placed before it whereafter Section 3 mandates that an order of requisition must be made in writing. Thereafter under Section 3(2) of the Act, the order of requisition has to be served on the owner and if the owner is not immediately traceable or if ownership is disputed, the order must be published in the official gazette. It is only if after service of the order or publication in the official gazette is complete, as the case may. be, and the owner of the vehicle does not make the vehicle available to the authorised official, a power of seizure of the vehicle from any person who may be in possession of the same is contemplated under Section 3(3) of the Act. While noticing the ambit of Section 3 of the Act it may be appropriate to put on record that the necessity of formation of an opinion regarding the existence of any of the pre-conditions to the exercise of power of requisition would require the requisitioning authority to satisfy the court in the event of a challenge made against the requisition order that materials did exist at the relevant point of time to justify the formation of the requisite opinion. This is an additional safeguard, which this Court must consider to be reasonably flowing from the provisions of Section 3 of the Act.
The provisions contained in Section 4 of the Act contemplate payment of requisition compensation, whereas Section 5 of the Act vests in the requisioning authority the power to release a vehicle from requisition in the manner prescribed. The quantum of compensation, in case of a dispute is subject to a just determination by the courts under Section 6 of the Act. The provisions of the Act, as noticed above, elaborately deal with the extent of power conferred and the manner of exercise of such power and the inbuilt necessity of strict adherence to the aforesaid provisions of the Act are in the nature of inherent safeguards provided to the citizens. The absence of a prior opportunity to show cause against a proposed requisition or an Appellate Forum to adjudicate the correctness of a requisition, though conspicuous, must necessarily be understood to be deliberate omissions on the part of the legislature keeping in mind that requisition is by itself a transitional phase which is intended to be limited in duration of time.
8. The Division Bench in Hemanta Kumar Sarma (supra) has held that the inclusion of private vehicles within the ambit of the power conferred by Section 3 of the Act would make the said provision of the Act arbitrary. In doing so, it relied on the decision in Ajay Hasia (supra) and Marietta Gandhi (supra). It will, therefore, be necessary to briefly notice what was held by the Apex Court in the above two cases.
In Ajay Hasia (supra) the selection of candidates for admission to the MBBS course in the State of Jammu Kashmir was sought to be challenged, inter alia, on the ground that in selecting candidates weightage was given to the performance in viva voce test and alternatively that such percentage being excessive was an arbitrary act. While negating the challenge to the effect that weightage on the basis of performance in the viva voce test is per-se arbitrary, the Apex Court however held that the weightage should be proportionate and that instead 50% marks awarded in the viva voce segment a total of 15 marks would be just, fair and proper. The above view was taken by the Apex Court keeping in mind that the parameters of judging a candidate in a viva voce examination is largely subjective.
Maneka Gandhi (supra) while opening new vistas and adding fresh dimensions to Article 14 of the Constitution, nevertheless reiterated and maintained the proposition that arbitrariness in a law framed by the legislature has to be judged in the context of the provisions made by the law with regard to the contours of the power conferred and the manner laid down for its exercise. While it is correct that in Ajay Hasia (supra) and Maneka Gandhi (supra) the Apex Court had laid down the principle that the test of Article 14 must also apply to legislative functions, the circumstances for the exercise of the judicial power to strike down a legislative act remained unaltered requiring us to continue to understand the inherent limitations in the exercise of the judicial power, as has been already noticed. It must be reemphasised at this stage that a legislative act does not become arbitrary on account of individual perceptions ; it becomes arbitrary if the parameters of the exercise of the power or the manner thereof is not indicated thereby leaving it free for the executive to exercise the powers conferred at its sweet will; or if a legislative act clearly transgresses the provisions of Part-III of the Constitution or if such an exercise runs contrary to any other provision of the Constitution. In the present case, the situations in which the power to requisition vested by Section 3 can be exercised ; the contours of the power conferred and the mode and manner of exercise of the power are all provided by the statute, as already noticed. The power of requisition can be exercised subject to the existence of three alternative pre-conditions, the existence of which the requisitioning authority must be satisfied whereafter only an order of requisition in writing can be passed. Furthermore, an order of requisition is required to be served on the owner of the vehicle and, in the given situation, by publication in the official gazette before such order can take any legal effect. Requisition being a temporary phase, payment of due compensation is also contemplated. In view of the above provisions of the Act which, undoubtedly, are elaborate, it cannot be said that any uncontrolled or unbridled power has been conferred by Section 3 of the Act. The right to own and possess a vehicle not being protected by the provisions contained in Part-III of the Constitution and the power of the State to requisition a vehicle not being in any way contrary to any discernible constitutional scheme, we are unable to take the view that the inclusion of the power to requisition private vehicles within the ambit of Section 3 would make the aforesaid provision of the Act Constitutionally fragile.
9. Individual rights, under the Constitution, must succumb to larger public interest and the power of the legislature to frame appropriate legislations to the above effect must be recognised by the courts. The remedy of the citizens in such situations lie in the courts maintaining a strict vigilance on the manner of exercise of the power and striking down specific acts that do not conform to the laid down parameters and/or the mode and manner, as may be prescribed, when such complaints come before the courts. In the present case, strict adherence to the provisions of the Act and resort to requisition of private vehicles as an exception and only when requisition of public vehicles are inadequate to meet the requirements of the Act, would, in our considered opinion, be effective safeguards to maintain the balance that has to be struck by the courts between public interest and individual rights. Public service vehicles being usually available for hire and used by the owner as a means of income from such business, whereas a private vehicle being a means of necessity and utility for the owner, it is our considered view that it will be rational and reasonable to understand the provisions of the Act in the above manner in so far as the order/priority of requisition is concerned.
10. Having held the power of requisition of private vehicles to be an integral part of Section 3 of the Act, any discussion on the further exercise of 'reading down' as undertaken in Hemanta Kumar Sanna (supra) will be largely academic and courts of law are loath to perform any such academic exercise. We, therefore, do not consider it either necessary or appropriate to burden our present order with any such academic discussion, even for statistical purposes.
11. For the aforesaid reasons, we regretfully take the view that it is not possible for us to agree with the opinion of the Division Bench with regard to the scope and ambit of Section 3 of the Act as expressed in the case of Hemanta Kumar Sarma (supra). We, therefore, declare the law laid down by the Division Bench in the aforesaid case to the effect that Section 3 of the Act does not empower the State to requisition private vehicles to be not the correct law and we accordingly answer the first question referred to us in the above terms.
12. The second question of which reference has been made to us need hardly detain the court. Having regard to the restricted meaning of the expression 'vehicle' as contained in Section 2(e) of the Act and as a vehicle for the purpose of the Act must be understood to be a vehicle used or capable of being used for the transport of persons or goods, we hold the scooter or motorcycle, which is a two wheeled mode of conveyance being restricted by its inherent structure in carrying persons or goods, does not come within the meaning of vehicle as contained in Section 2(e) of the Act.
In view of the foregoing discussions, we answer the reference accordingly.