Shrinivasa Reddy & Ors Vs. The
State of Mysore & Ors [1959] INSC 131 (6 November 1959)
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER
KAPUR, J.L.
GUPTA, K.C. DAS
CITATION: 1960 AIR 350 1960 SCR (2) 130
CITATOR INFO :
R 1961 SC 82 (9,15) RF 1961 SC1556 (7) D 1973
SC 974 (15)
ACT:
Motor Vehicles-Nationalisation of transport
services-Scheme -if must be capable of being implemented all at onceApplication
for permit by State Transport UndertakingProcedure-Motor Vehicles Act,1939 (4
of 1939), as amended by the Motor Vehicles (Amendment) Act, 1956 (100 of 1956),
ss. 68C, 681 (1), 57(2).
HEADNOTE:
The stage carriage permits of the
petitioners, who were also the petitioners in Writ Petition NO. 75 of 1959,
previously, reported, were expiring on 31st March, 1958, and were renewed up to
March 31, 959. A fresh scheme of nationalisation having 131 been approved and
published under s. 68C of the Motor Vehicles Act, the Regional Transport
Authority, in order to avoid inconvenience to the public, granted temporary
permits to the petitioners till the State Transport Department obtained -their
permits. The Department applied for permits under s. 68F(1) of the Act in
accordance with the scheme admittedly less than six weeks before the date when
they were to take effect, contrary to the provision of s. 57(2) of the Act. The
petitioners had also applied for renewal of their permits. The Regional
Transport Authority issued permits to the Department and rejected the renewal
applications of the petitioners. The petitioners moved the High Court under
Art. 226 of the Constitution for quashing ,that order. The High Court held that
the issue of permits to the Department was invalid as the provision of S. 57(2)
had not been complied with, and the refusal of renewal of the petitioners'
permits was incorrect, but it dismissed the Writ Petition on the ground that
the relief that could be granted to the petitioners could only be short-lived.
The petitioners applied for a certificate to enable them to appeal to this
Court and while that application lay pending, applied to this Court under Art.
32 of the Constitution. It was contended on their behalf that before the
renewal application could be rejected and permits granted to the Department
under s. 68F(1) of the Act, the Department must apply for permits in respect of
all the routes covered by the scheme so that there could be no possibility of
any discrimination between an operator and an operator in infringement of Art.
14 of the Constitution as also their rights to carry on their business under
Art. 19(1)(g) of the Constitution. It was further contended that non-compliance
with the provision of s. 57(2) of the Act disentitled the Department to any
permits at all. It was contended on behalf of the Department that it was open
to it to implement the scheme by stage and it was denied that there could be
any discrimination in doing so or that S. 57(2) applied to an application under
s. 68F(1) of the Act.
Held (per Sinha, C.J., Imam, Wanchoo and Das
Gupta, JJ.), that it was clear from the language of s 68F of the Motor Vehicles
Act, 1939, that an application by a State Transport Undertaking for a permit
thereunder must be made in the manner prescribed by Ch. IV of the Act and,
therefore, there could be no doubt that such an application must fall within
the purview of S. 57(2) of the Act. Consequently, the orders granting the
application for permits made by the State Transport Department in the instant
case, admittedly in breach of S. 57(2) of the Act, were on that ground alone
liable to be quashed.
Section 68C of the Act contemplates that
where there is no intention to operate an entire route but a portion of it,
that portion alone should be specified as the route and not the whole of it or
any portion thereof as in the instant case. The scheme, however, clearly
intended that all the routes in their entirety 132 were to be taken over and so
the qualifying words were mere surplusage.
Per Kapur, J.-On a proper construction of ss.
68C and 68F of the Act, it would not be correct to say that the Legislature
intended that the scheme as approved must be implemented all at once or not at
all. It would be impractical to suggest that the whole scheme should be
implemented in a rigid manner. Some flexibility in implementing it must
necessarily be implied for otherwise nationalisation of transport services, the
accepted State policy in India, was likely to be indefinitely held up, if not
thwarted. The language used by s. 68F lends no support to such a contention nor
do the words " in pursuance of " occurring, therein mean that the
whole of the scheme has to be put into operation and not a portion of it.
Bradford Corporation v. Myers, (1916) 1 A.C.
242, referred to, If the State cannot take over routes for which application
can be immediately made, the taking over must become not only difficult but
extremely expensive as other interests may supervene in the meantime. Where,
therefore, it intends to run a scheme within a reasonable time, there can be no
reason why it should not apply for different routes within a reasonable time so
long as it acts honestly, fairly and without any oblique motives.
Since the State Undertaking in the present
case had implemented a part of the scheme and made fresh applications for
permits in the manner provided by s. 57(2) and their relevant provisions of
Act, it is not necessary to pass a formal order quashing the permits granted in
its favour.
K. N. Guruswamy v. The, State of Mysore,
[1955] 1 S. C.R.
305 referred to.
ORIGINAL JURISDICTION: Petition No. 95 of
1959.
Petition under Article 32 of the Constitution
for enforcement of Fundamental Rights.
C. K. Daphtary, Solicitor-General of India
and B. R. L. Iyengar, for the petitioners.
H. N. Sanyal, Additional Solicitor-General of
India,R.
Gopalakrishnan and T. M. Sen, for respondents
Nos. 1 and 2.
1959. November 6. The Judgment of Sinha,
C.J., Imam, Wanchoo and Das Gupta, JJ. was delivered by Wanchoo, J.
Kapur, J. delivered a separate judgment.
WANCHOO J.-This petition under Art. 32 of the
Constitution is a sequel to Writ Petition No. 75 of 1959, which is also being
disposed of today. It is not necessary therefore to set out the early history
leading to 133 this petition as that has already been given in the judgment in
Petition No. 75. Suffice it to say that the petitioners who are the same as the
petitioners in Petition No. 75 were transport operators in the Anekal pocket in
the State of Mysore. They held stage carriage permits for various routes which
were expiring on March 31, 1958. They were granted renewal of these permits up
to March 31, 1959. In the meantime, steps were taken to formulate an approved
scheme under Chapter IV-A of the Motor Vehicles Act, No. IV of 1939,
(hereinafter called the Act). The scheme was finally approved and published on
April 23,1959. In order, however, to avoid inconvenience to the public
temporary permits were granted to the petitioners after March 31, 1959, for a
period of four months or up to the time the Mysore Government Road Transport
Department (hereinafter called the Department) was granted permits under s.
68F, whichever was earlier. Sometime before June 23, 1959, the Department
applied for permits in accordance with the scheme while the petitioners had
applied for renewal of their permits. The Regional Transport Authority,
Bangalore (hereinafter called the Authority) issued permits to the Department
and rejected the renewal applications of the petitioners on June 23, 1959. The
petitioners then applied to the High Court of Mysore by a writ petition
challenging the issue of permits to the Department and the refusal of renewal
to, them. This petition was disposed of by the High Court on July 14, 1959, and
it was held that the grant of permits to the Department was invalid and the
rejection of the renewal applications of the petitioners was incorrect; but the
High Court dismissed this petition on the ground that the relief to which the
petitioners were entitled, in view of these findings, would be shortlived. The
petitioners then applied for a certificate to enable them to appeal to this
Court and that application is still pending. The present petition was filed on
August 3, 1959.
The first contention of the petitioners in
this petition is that after the scheme had been approved and published under
Chapter IV-A of the Act, it was the 134 duty of the Department to apply under
s. 68F for all the routes covered by the scheme and it was only, when the
Department applied for all the routes, that it would be open to the Authority
to reject the applications for renewal made by the petitioners. The Department
in this case applied only for some of the routes and in particular it was
pointed out that there was no application at any rate for one out of the
fourteen routes included in the scheme.
Therefore, it is submitted that the
Department by picking and choosing which route to apply for and which to leave
out was discriminating against those operators for whose routes it applied for
permits and in favour of those operators for whose routes it did not apply for
permits. Further, the Authority by granting permits to the Department in such
circumstances was denying equality before the law to the petitioners. This was
an infringement of Art. 14 of the Constitution and also contravened the
petitioner's right to carry on business guaranteed under Art. 19 (1)(g).
Secondly, the petitioners contended that the
Authority could not issue permits in this case as s. 57(2) and (3) was not
complied with. The petitioners therefore prayed for a direction quashing the
order of the Authority issuing permits to the Department under s. 68F and
refusing their renewal applications.
The petition has been opposed by the
Department and its contention is that even though an approved scheme might
cover a number of routes, it was open to the Department to implement it in
stages and that it was the best judge as to which route should be taken over
first and there could be no discrimination so long as the holders of the stage
carriage permits operating on a particular route were treated equally inter se
in pursuance of the approved scheme. It is also urged that sub-sections (2) and
(3) of s. 57 do not apply to applications for issue of permits made under s.
68F(1).
We shall begin by examining the second
contention. Section 68F lays down that where in pursuance of ,an approved
scheme any State Transport Undertaking applies in the manner specified in
Chapter IV for a stage carriage permit, etc., in respect of a notified area 135
or a notified route, the Regional Transport Authority shall issue such permit
to the Undertaking notwithstanding anything to the contrary contained in
Chapter IV. Clearly therefore the Undertaking has to apply for permits in the
manner provided in Chapter IV, even though the Regional Transport Authority may
be bound on such application to issue the permits. This takes us to s. 45,
which lays down to which authority the application shall be made and then to s.
46 which lays down the particulars which the application must contain. Thus the
Undertaking must comply with the terms of ss. 45 and 46 when it applies for permits.
Then comes s. 57(2) which lays down that an application for a stage carriage
permit (with which we are concerned in this case) shall be made not less than
six weeks before the date on which it is desired that the permit shall take
effect or if the Regional Transport Authority appoints dates for the receipt of
such applications, on such dates. In this case the Regional Transport Authority
had appointed no date and clearly therefore the Undertaking should have applied
not less than six weeks before the date on which it desired to start the
service. This is necessary to give time to the Regional Transport Authority to
deal with the matter and if necessary to inform those who might be affected
under s. 68F (2) to be prepared for the change. That is why s. 68F (1) provided
that the applications shall be made in the manner provided in Chapter IV. This
provision has nothing to do with the publication required under s. 57(3) which
is meant for a different purpose. It was urged by the learned Solicitor-General
that the procedure provided in s. 57(3) also applies as it is not inconsistent
with the provisions of Chapter IV-A (see s. 68B). We consider it unnecessary to
go into this matter for it is not disputed that the applications for permits in
this case were not made at least six weeks before the date from which the
permits were to take effect. In the circumstances the applications being not in
the manner provided in Chapter IV and being actually in breach of s. 57 (2), no
permits could be issued on such applications. Therefore, the orders in favour
of the 136 Department issuing permits to it are liable to be quashed on this
ground alone.
In view of the above decision, it is really
not necessary for us to decide the first contention. We would, however, like to
point out the dangers inherent in the claim put forward by the Department. A
scheme is prepared under s. 68C. It is initiated by the Undertaking when it is
of opinion that for the purpose of providing an efficient, adequate, economical
and properly coordinated road transport services, it is necessary in the public
interest that road transport services in general or any particular class of
such service in relation to any area or route or portion thereof should be run
and operated by the Undertaking, whether to the exclusion, complete or partial,
of other persons or otherwise. This section thus gives power to the Undertaking
to prepare a scheme in relation to an area or route or portion thereof. The
Undertaking is thus not bound to prepare a scheme for the whole State at one
time; it has been given the power to choose particular types of services or a
particular area or particular routes or even portions thereof, for the reason
that it may not be possible for the Undertaking to run services all over the
State at the same time. Thus when the Undertaking decides to frame a scheme, it
must take into account its resources in men, material and money and frame a
scheme only to the extent to which it can carry it out in full. For example, if
it can carry out the scheme for the whole State at once it may frame a scheme
for the whole State. But if it cannot do so, it can frame a scheme for one
district. Even if that is not within its resources it can frame a scheme for a
part of a district.
Even in a part of the district its scheme may
deal with certain routes and not all. So long as it can show that the scheme is
an efficient, adequate, economical and properly coordinated scheme for road
transport service, it will have a right to frame a scheme for only a part of
the transport services running in a State. Therefore, the scheme to be framed
must be such as is capable of being carried out all at once and that is why the
Undertaking has been given the power to frame a 137 scheme for an area or route
or even a portion thereof Further after the scheme is framed it is approved and
published by the State Government. Thereafter it is the duty of the Undertaking
to carry out the scheme and in pursuance of that it applies for permits under
s. 68F(1).
If the Undertaking at that stage has the
power to carry it out piecemeal, it would be possible for it to abuse the power
of implementation and to discriminate against some operators and in favour of
others included in the scheme and also to break up the integrity of the scheme
and in a sense modify it against the terms of s. 68E. There is no difficulty
for the Undertaking to apply for permits relating to the entire scheme at the
same time, for the manner in which the scheme is prepared under s. 68C takes
into account all the difficulties which might arise in the implementation of
the scheme and with that very object provides for taking over particular types
of transport services in relation to areas or routes or even portions thereof.
We need not however pursue the matter further on this occasion.
Before we go to the other point raised in
this petition, we should like briefly to refer to a feature of the scheme,
which has been brought to our notice. This feature is that though the scheme
mentions fourteen routes with their terminii and intermediate points and the
length of the routes, there is a parrot-like repetition of the words " or
any portion thereof " in all the fourteen routes. We should like to point
out' that it is the duty of the Undertaking when it prepares a scheme under s.
68C to decide whether it will take up a whole route or a portion thereof. If it
decides to take a portion of the route (provided, however, conditions of
efficiency, adequacy, economy and proper coordination are fulfilled), it should
specify that portion only in the scheme. S. 68C does not contemplate that the
routes should be specified in the manner in which they have been specified in
-this case, as, for example, " Bangalore to Anekal or any portion
thereof." If the intention was not to operate on the whole Bangalore-Anekal
route, but only a portion of it, that portion should have been specified 18 138
as the route. However, in this particular case, we are of opinion that the
intention clearly was to take over the whole route in the case of all the
fourteen routes, which will be clear from the length of the route to be taken
over mentioned in the schedule to the scheme. Therefore, the words " or
any portion thereof " which have been repeated, as if they were some kind
of charm, throughout the schedule are surplusage in view of the length
specified and may be ignored and the scheme taken to apply to the entire length
of the fourteen routes.
The next question is about the order to be
passed in this case. The contention on behalf of the Department is that as the
petitioners had applied to the High Court and their petition was dismissed and
the application for a certificate to appeal to this Court is pending before the
High Court, this Court should dismiss the present petition and direct the
petitioners to come either on a certificate granted by the High Court or by a
special leave application in case the High Court refuses the certificate. We do
not think it necessary in this case to decide this general question in view of
certain special features of the present case. It is true that the writ petition
by the petitioners was dismissed by the High Court; but the judgment of the
High Court shows that it was of opinion that the applications under s. 68F
should have complied with s. 57 (2) of the Act and should thus have been made
at least six weeks before the date from which the scheme was to be implemented.
On that view the High Court held that the issue of permits to the Department
was not according to law. It also held in consequence that refusal of the
renewal to the petitioners was illegal; but it refused to pass an order in
favour of the petitioners on the ground that the relief granted to them would
be shortlived. In effect, therefore, the judgment of the High Court was in
favour of the petitioners and not against them, though in form the writ
petition was dismissed. In these circumstances we are of opinion that as the
petitioners' fundamental right to carry on business is certainly involved in
this case we should not refuse relief to the, 139 petitioners on the ground
that their writ petition was dismissed by the High Court and they have not yet
been able to obtain a certificate permitting them to appeal to this Court.
There are two prayers in the present
petition: (1) that the proceedings of the Authority issuing permits to the
Department be quashed, and (2) that the proceedings rejecting the renewal
applications of the petitioners be also quashed. We see no reason why we should
not grant the first prayer and quash the issue of permits to the Department by
the Authority on June 23, 1959. Our attention in this connection was drawn to
K. N. Guruswamy v. The State of Mysore and Others,(1). In that case this Court
after declaring the law in favour of the petitioner did not issue a writ as
there was hardly a fortnight left for the excise contract which was involved in
that case to expire and the issue of a writ would have been meaningless and
ineffective.
That case however is distinguishable because
the contract there would have come to an end within a few days. In the present
case there is no reason to assume that the six weeks period which is the
minimum period prescribed under s. 57 (2) is the only period that will be
required for implementation of the scheme under s. 68F(1). In these
circumstances we are of opinion that the prayer for quashing the permits
granted to the Department on June 23, 1959, should be allowed. As for the other
prayer for quashing the order rejecting the renewal applications of the
petitioners, it is now unnecessary in view of our decision in Petitions Nos. 54
and 75 of 1959.
We, therefore, allow the petition and quash
the order issuing permits to the Department. We, order parties to bear their
own costs of this petition taking into account that Petition No. 117 of 1959
filed by the petitioners with respect to the validity of the scheme has been
withdrawn by them at a late stage and we have directed parties to bear their
own costs of that petition also.
KAPUR J.-I have read the judgment prepared by
my learned brother Wanchoo, J., but I respectfully (1) (1955) 1 S.C.R. 305.
140 dissent from the opinion therein given. I
shall proceed to give my reasons for the dissent.
It is not necessary to restate the facts
which are set out in detail in the proposed judgment but reference may be made
to certain dates. On August 28, 1958, the proposed scheme under Chapter IV-A of
the Motor Vehicles Act, 1939, as amended by Act 100 of 1956 (which for the sake
of convenience will hereinafter be termed the Act) was published as a draft
scheme. It was approved on October 24, 1958, but on its being challenged in the
High Court of Mysore, it was quashed on December 3, 1958. A fresh draft
scheme-was published on January 22, 1959, and after the Chief Minister had
heard objections against it, it was approved on April 15, 1959, and was
published on April 23, 1959. The fresh scheme was also challenged in the High
Court of Mysore in Civil Writ Petition No. 315 of 1959 but this petition was
dismissed on June 1, 1959. The Regional Transport Authority on the application
of the Mysore Government Road Transport Department (hereinafter termed the
Department) issued in favour of the Department permits on June 23, 1959, and
rejected the application of the other operators, the petitioners. This order
was challenged in the High Court by Civil Writ Petition No. 463 of 1959 on June
24, 1959. On July 14, 1959, the High Court although it found in favour of the
petitioners practically on all points, did not grant any relief and dismissed
the petition on the ground that the effectiveness of the relief will be for a
short period of six weeks at the most; but in the order it was stated that the
permits granted to the Department were invalid as they had not applied for in
the manner provided in s. 57 of the Act and also that the Regional Transport
Authority had been careless in the exercise of its powers. Against this
decision the petitioners applied to the High Court for a certificate for appeal
to this Court but the matter is still pending in the High Court. In the
meanwhile the petitioners filed this petition in this Court under Art. 32.
The core of the question is what is the
consequence of the framing of the scheme under Chapter IV-A 141 and how it is
to be implemented. The petitioners contended that on a proper construction of
ss. 68C and 68F the scheme as approved must be implemented as a whole
simultaneously or not at all. The submission of the Department on the other
hand is two-fold: (1) that in the very nature of things it must be left open to
the Department to implement the scheme in reasonably convenient stages and (2)
if the Department has applied for and obtained permits for certain routes in
the scheme and has substantially implemented that scheme the implemented portion
of the scheme cannot be set aside. The decision of these rival contentions
would turn on the interpretation of the various sections in Chapter IV-A.
This Chapter contains special provisions
relating to State Transport Undertaking and was inserted in the Act by s. 62 of
Act 100 of 1956: Section 68A contains definitions, 68B gives overriding effect
to this Chapter qua Chapter IV.
Section 68C deals with preparation and
publication of the scheme of road transport services of the State Transport
Undertaking. Section 68D provides for objections to be filed against a,
proposed scheme; 68E to the consequences of cancellation or modification of the
scheme. Then comes s. 68F which provides for the issue of permits to State
Transport Undertakings. Section 68G provides for the method of determining of
compensation in case of State Transport taking over; 68H for payment of
compensation and 681 gives power to make rules. We were informed by Mr. Sanyal
that rules have been framed under this section. The relevant portion of s. 68C
is as follows:" Where any State transport undertaking is of opinion that
for the purpose of providing an efficient, adequate, economical and properly
coordinated road transport service it is necessary in the public interest that
road transport services in general or any particular class of such service in
relation to any area or route or portion thereof should be run and operated by
the State transport undertaking, whether to the exclusion, complete or partial
of other persons or otherwise, the State transport undertaking 142 may prepare
a scheme giving particulars of the nature of the services proposed to be
rendered the area or route proposed to be covered Section 68F(1) provides:
" Where, in pursuance of an approved
scheme any State transport undertaking applies in the manner specified in
Chapter IV for a stage carriage permit or a public carrier's permit or a
contract carriage in respect of a notified area or notified route, the Regional
Transport Authority shall issue such permit to the State Transport undertaking,
notwithstanding anything to the contrary contained in Chapter IV." It was
contended that the State Transport Undertaking (to be termed the Undertaking)
can propose a scheme only when the conditions in s. 68C are fulfilled, that is,
for the purpose of providing efficient, adequate, economical and properly
coordinated road transport services. The argument is that all these conditions
are a sine qua non of the scheme being proposed and if for any reason the
Undertaking is unable to put the whole scheme into effect all at once then it
should modify the scheme under s. 68E and implement this modified scheme. No
doubt the words adequate, economical and coordinated are used in the section
but they must be read in the context. The words of the section require that
when the Undertaking is of the opinion that for the objects therein mentioned
the services on any route or in any area should be operated by it, it may
prepare a scheme. All that the section requires is that the Undertaking must be
of that opinion when it prepares the scheme. The scheme has to contain
particulars of the services proposed to be rendered, the areas or routes to be
covered.
It was next submitted that the language of s.
68F further supports the contention that if the approved scheme is to be
implemented it must be implemented all at once or not at all and emphasis was
laid on the words "in pursuance of" and "permit in respect of a
notified area or notified route".
These words, in my opinion, do not
necessarily lead 143 to that conclusion. Before the scheme is proposed the
Undertaking is to be of a certain opinion and when it is to be in operation the
Undertaking has to proceed in a manner prescribed in the section But it cannot
be said that when the scheme is implemented, the whole thing is to be done in a
rigid manner. Some flexibility and practicability in effectuating the scheme
must necessarily be implied because of the implications, financial and others
of the scheme itself. It may happen that at the time of the implementation it
is discovered that the scheme cannot be put into effect all at once, because of
a natural calamity or of some unforeseen circumstance beyond the control of the
State Transport Undertaking. If the contention of the petitioners is correct
then it would mean that the whole scheme must be scrapped and a new scheme
prepared and approved with its consequential delays. In this manner the policy
of nationalisation which is the State policy in India would be indefinitely put
off because in the meanwhile all kinds of interests -may come into existence
and circumstances may supervene which may delay, if not obstruct, the State in
its policy of nationalisation.
The use of the words " in pursuance of
" in s. 68F only means that applications are made to give effect to the
scheme or in execution of the scheme. These words import a notion of obligation
and are more restrictive than the phrase " by reason of " which is
permissive. Bradford Corporation v. Myers (1) where Lord Buckmaster in construing
these word said :" It is because the act is one which is either an act in
the direct execution of a statute, or in the discharge of a public duty, or the
exercise of a public authority." Therefore, the mere use of the words
" in pursuance of " cannot mean that the whole scheme has to be put
into operation and not a portion of it, (1) (1916) 1 A.C. 242 at p. 247.
144 The second argument raised in support of
the contention that the scheme has to be implemented as a whole and all at once
is the use of the words " applies in the manner specified in Chapter IV
for a stage carriage permit in respect of a notified area or notified
route." Chapter IV deals with the control of transport vehicles. Section
46 deals with applications for such stage carriage permits and requires the
following particulars to be set out in the applications : the route or routes
or the area or areas for which the application is made, the number of vehicles
proposed to operate in relation to each route or area, the minimum and maximum
number of daily services proposed to be provided in relation to each route, the
number of vehicles to be kept in reserve, the arrangements to be made for
housing and repair of vehicles and for the comfort and convenience of
passengers and such other matters as may be prescribed. This section also
applies to applications made under 68F. It means therefore that if the area is
extensive or the number of routes which a State Undertaking wishes to take over
is large a number of applications will have to be made if all these particulars
have to be properly given. If the contention of the petitioners is correct then
all applications under s. 46 will have to be made at one and the same time and
there is no reason to make allowances for mistakes or accidental omissions. If
accidental omissions are to be excused there is no reason to exclude omission
due to unforeseen circumstances, e.g., some vehicle being found unusable, some
repair shops not being completed in time or some natural calamity making it
impossible to start operations on a particular route. If the State cannot take
over those routes for which applications, can immediately be made then it would
mean that taking over would become not only difficult but extremely expensive
because, as I have said before, other interests may come in which it may not be
possible for the State to take over. Therefore, if the State Undertaking
intends to run a scheme within a reasonable time then there is no reason why
the State should not apply for different routes within,% reasonable time 145 so
long as it acts honestly, fairly and without oblique motives.
The third argument on behalf of the
respondents ` was that if the State Undertaking has implemented the scheme in
regard to certain routes and has actually started work on those routes after
having obtained permits that portion of the implemented scheme should not be
quashed because it would mean that the stage carriages of the State Undertaking
will be taken off and somebody else will have to be given the permits at once
or the people will have to go without road transport which cannot be the
intention of the Act. If the policy of the State is nationalisation then such
an order will not only delay but obstruct and thwart that policy. In my opinion
therefore it is not the intention of the legislature in ss. 68C and 68F that
the whole scheme must be put into operation all at once or not at all.
The question then arises as to what should be
the order in the instant case. The High Court has indicated in its order that
the applications made on behalf of the State Undertaking were not in accordance
with s. 57 of the Act and the learned Additional Solicitor-General informed us
that the State Undertaking had accepted that view of the law and proceed to
make applications in accordance with s. 57 and other relevant provisions of
Chapter 1V. In that view of the matter, in my opinion, it is not necessary to
pass a formal order quashing the permits granted in favour of the State
Undertaking. The case is very much like K. N. Guruswamy v. The State of Mysore
& Ors.(1).
In this view of the matter and in view of the
opinion I have given in Petitions Nos. 54, 75 & 76, 1 am of the view that
this petition should be dismissed but the parties should bear their own costs.
ORDER OF COURT In accordance with the opinion
of the majority, we allow the petition and quash the order issuing permits;
(1) [1955] 1 S.C.R. 305.
19 146 to the Department. We order parties to
bear their own costs of this petition taking into account that Petition No. 117
of 1959 filed by the petitioners with respect to the validity of the scheme has
been withdrawn by them at a late stage and we have directed parties to bear
their own costs of that petition also.
Back
