Malik Ram Vs. State of Rajasthan
[1961] INSC 156 (14 April 1961)
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
DAS, S.K.
AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1575 1962 SCR (1) 978
CITATOR INFO :
R 1963 SC 222 (36) RF 1967 SC 603 (2,3,4,7)
RF 1967 SC1815 (11) RF 1981 SC 660 (6)
ACT:
Motor Vehicles-Objection to scheme-Power of
Officer appointed to hear such objection--Recording of evidence--Cancellation
of scheme-Motor Vehicles Act, 1939 (4 of 1939), s. 68-D(2)--Rajasthan State
Road Transport Services (Development) Rules, 1960, r. 7(6).
HEADNOTE:
By s. 68-D(2) of the Motor Vehicles Act, 1939,
"The State Government may, after considering the objections and after
giving an opportunity to the objector or his representatives and the
representatives of the State Transport Undertaking to be heard in the matter,
it they so desire, approve or modify the scheme". The appellant's
objections to the draft scheme in question were heard by the Legal Remembrance,
appointed by the State Government to hear such objections, under r. 7(6) of the
Rajasthan State Transport Services (Development) Rules, 1960, framed under s.
68-1 of the Act.
The appellant applied to the said Officer for
permission to give evidence in order that he could show that the entire scheme
ought to be rejected. His applications were rejected by the Officer holding
that the Rules did not provide for recording of evidence and that according to a
decision of the Rajasthan High Court, dated November 9, 1960, s. 68-D(2) of the
Act did not empower him to cancel the draft scheme in its entirety. He,
therefore, heard the arguments addressed on behalf of the appellant and
approved the scheme. After moving unsuccessfully the Rajasthan High Court, the
appellant appealed to this Court by special leave, Held that the Officer was in
error on both the points.
Section 68-D(2) of the Act clearly implies
that the authority which has to approve or modify the scheme, has also the
power, if it thinks proper, to disapprove the scheme altogether. The words
" may approve" in the section, properly construed, must also include
"may not approve".
The use of the word "shall" in r.
7(6) of the Rules instead of the word "may", which is otherwise
similar in its terms to s. 68-D(2) of the Act, can make no difference.
In hearing objections under s. 68-D(2) of the
Act, the State Government or its Officers act as a quasi-judicial tribunal and
regard being to the nature of the objections and the purpose of the hearing there
under, there can be no doubt that production of evidence, both oral and
documentary, is clearly contemplated by the section.
979 Gullapalli Nageswara Rao v. Andhra
Pradesh State Road Transport Corporation, [1959] Supp. 1 S.C.R. 319, referred
to.
Bat that does not mean that the parties can
produce any amount of evidence merely to prolong the proceeding. It is for the
State Government or the Officer to decide whether the evidence sought to be
adduced is necessary and relevant to the enquiry and, if so, they will have all
the powers that a court has of controlling the giving and recording of such
evidence.
Where a draft scheme is disapproved under s.
68-D(2) and thus stands rejected, any fresh scheme that may have to be framed,
must be framed according to the procedure prescribed by Ch. IVA of the Act.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 135 of 1961.
Appeal by special leave from the judgment and
order dated January 3, 1961, of the Rajasthan High Court, Jodhpur, in Civil
Writ Petition No. 1 of 1961.
M. K. Nambiar, R. K. Garg, D. P. Singh, M. K.
Ramamurthi and S. C. Agarwala, for the appellant petitioner. H. N. Sanyal,
Additional Solicitor-General of India, C. C. Kasliwal, Advocate-General of
Rajasthan, Khan Singh and D. Gupta, for the respondents.
1961. April 14. The Judgment of the Court was
delivered by WANCHOO, J.-These two connected matters arise out of an order
approving a scheme framed under Chap. IV-A of the Motor Vehicles Act, No. IV of
1939, (hereinafter referred to as the Act) and will be disposed of together.
The brief facts necessary for present purposes are these. The appellant was
plying a bus between Jaipur and Ajmer on a permit granted to him for three
years by resolution of the Regional Transport Authority, Jaipur, dated December
16/17, 1958. In August, 1960, the State Government promulgated rules under s.
68-1 of the Act, called the Rajasthan State Road Transport Services
(Development) Rules, 1960 (hereinafter called the Rules). The Rules were framed
for carrying out the purposes of Chap. IV-A of the Act and provided inter alia
for framing of schemes, hearing of objections, determination and payment of 980
compensation, and other incidental matters. A draft scheme was published on
September 7, 1960, for taking over the Jaipur-Ajmer route. The appellant made
objections to the draft scheme within the time allowed by the notification
thereof. The State Government appointed the Legal Remembrancer to hear and
decide the objections under r. 7 of the Rules. It appears that in the meantime
an application was made under Art. 226 by some bus operators before the
Rajasthan High Court challenging the constitutionality of s. 68-D of the Act
and the legality of the Rules framed by the State Government. This application
was dismissed and the High Court inter alia decided while considering r. 7(6)
that it was not open to the officer hearing the objections to cancel the draft
scheme and seems to have held that there was no such power even under s.
68-D(2) of the Act. This decision was given on November 9, 1960. The draft
scheme came up for consideration before the officer appointed to hear
objections on November 21,, 1960. An application was made before him that the
appellant should be permitted to give evidence on points of fact which were
narrated in the application in order that the officer may be in a position to
decide the objections justly. This application was rejected by the officer on
the ground that there was no provision in the Rules for recording of evidence
of witnesses. The matter then came up for consideration on November 23, 1960.
On that date another application was made in which it was said that the
appellant wanted to lead evidence to show that the draft scheme must be
rejected in its entirety, and it was contended that the view taken by the
Rajasthan High Court to the effect that it was not open to the officer to
cancel a draft scheme was incorrect. This application was also rejected by the
officer with the observation that he was bound hand and foot by the decision of
the Rajasthan High Court and if there was anything wrong in the interpretation
given by the High Court the remedy lay elsewhere. Thereafter the officer gave a
hearing to the appellant in the sense that he heard arguments on behalf of the
appellant and approved the draft scheme 981 by his order dated December 7,
1960. The approved scheme was then published on December 12,1960. On January 9,
1961, the Regional Transport Authority informed the appellant that his permit
was cancelled, as from January 26, 1961, or such later date from which the
buses of Rajasthan State Roadways begin to operate on the above-mentioned
route. In the meantime, the appellant unsuccessfully moved the Rajasthan High
Court, and his prayer for leave to appeal to this Court was also rejected. The
appellant then applied for special leave to appeal to this Court which was
granted; and that is how the matter has come up before us.
Two main points have been urged before us on
behalf of the appellant, namely, (i) the officer was wrong in the view he took
that it was not open to him to reject the draft scheme in its entirety, and
(ii) the officer was wrong in holding that he could not take evidence, whether
oral or documentary, and all that he had to do under s. 68-D of the Act was to
hear arguments on either side. It is contended that in view of these two wrong
decisions of the officer his approach to what he had to do in dealing with
objections under s. 68-D was quite incorrect., with the result that there was
no effective hearing of the objections and any approval given to the scheme in
these circumstances is liable to be set aside and the appellant is entitled
"to be heard" in the real sense in which those words were used in s.
68-D (2). Re. (i).
Section 68-D (2) with which we are concerned
is in these words:"The State Government may, after considering the
objections and after giving an opportunity to the objector or his
representatives and the representatives of the State transport undertaking to
be heard in the matter, if they so desire, approve or modify the scheme."
The view taken by the Rajasthan High Court in its decision of November 9, 1960,
seen-is to be that this section does not justify what it called the
cancellation of the scheme.
We are of the opinion that this view is 982
not correct. What s. 68-D(2) provides is that after hearing the parties, the
State Government may approve or modify the draft scheme. This in our opinion
clearly implies that the authority which has to approve or modify the scheme
has the power also, if it so thinks fit, not to approve the scheme at all. What
is before the. State Government under s. 68-D (2) is a draft scheme. That
sub-section provides that the State Government may approve or modify the
scheme; that does not mean that the State Government is bound to approve the
scheme with or without modifications. An authority to which power has been
given to approve or modify some proposal has certainly in our opinion the power
to say that it will not approve the proposal at all, for the words "may
approve" on a reasonable interpretation include "may not
approve". If a person may approve he is not bound to approve. Up to the
stage when the hearing takes place under sub-s.(2) the draft scheme is merely a
proposal before the State Government and it will only become effective if it
approves of it with or without modifications. But this power clearly implies
the power to say that it does not approve the draft scheme at all; and if it
says that, the draft scheme will stand rejected and the State Transport
Undertaking may have to submit another scheme for approval. When s. 68-E speaks
of cancellation it refers to a scheme already approved under s. 68-D(3), and in
that con. text the word "cancellation" is properly used. But the fact
that s. 68-E provides for the cancellation of a scheme which has already been
approved, does not mean that it is not open to the State Government under s.
68-D(2) to say, after hearing the objections, that it does not approve the
scheme at all which is put up before it as a draft for approval. We are
therefore of the opinion that under s. 68-D(2) it is open to the State
Government to say after hearing objections that it does not approve of the
draft scheme at all, in which case the draft scheme will stand rejected and the
State Transport Undertaking may have to frame a fresh scheme in accordance with
the procedure provided in Chap. IV-A. The officer therefore was wrong 983 in
holding that he had no power to reject the scheme in the sense that he could
withhold approval of it altogether, though we may add that he came to that
conclusion because of the earlier decision of the Rajasthan High Court.
As for r. 7(6) of the Rules it is in similar
terms as s. 68D(2) and must therefore mean what we have said above with respect
to s. 68-D(2). If, however, by the use of the word "shall" in r. 7(6)
in place of the word "may" which appears in s. 68-D(2) the intention
is to curtail the power of the officer hearing the objections, the rule would
be bad as going beyond what is provided in s. 68-D(2). But we do not think that
the use of the word "shall" in r. 7(6) makes any difference, for the
word "shall" had to be used there according to the rules of English
Grammar and has no greater force than the word "may used in s. 68-D(2) The
learned Additional Solicitor-General who appeared for the State of Rajasthan
did not contest that what we have said above was the true position in s.
68-D(2) and r. 7(6).
Re. (ii) The next question is the scope of
the hearing under s. 68D(2). The officer has held that the scope of the hearing
is confined only to hearing of arguments and no more, and that is why he
rejected the prayer of the appellant for leading evidence, whether oral or
documentary. Now it has been held by this Court in Gullapalli Nageswara Rao v.
Andhra Pradesh State Road Transport Corporation (1) that a State Government
acts as a quasi-judicial tribunal when giving a hearing under s. 68-D. The
purpose of the hearing is that the State Government has to satisfy itself that
the opinion of the State Transport Undertaking formed under s. 68-C, namely
that the scheme is for the purpose of providing an efficient, adequate,
economical and properly coordinated road transport service, is correct. The
objections are all made to show that the scheme does not provide for an
efficient, adequate, economical and properly coordinated road transport (1)
[1959] Supp. 1 S.C.R. 319 984 service. In order therefore to arrive at the conclusion
that the draft scheme provides for a transport service of this nature, the
State Government as a quasi-judicial authority may require materials to come to
that conclusion..
A hearing before a quasi-judicial authority
does not merely mean an argument; it may in proper cases include the taking of
evidence, both oral and documentary. It seems to us that in the circumstances
of the provision contained in s. 68D(2) and the purpose of the hearing there
under, taking of evidence, whether oral or documentary, that maybe desired to
be produced by either party, may be necessary before the State Government can
arrive at a just conclusion with respect to the objections to the draft scheme.
We cannot therefore agree with the officer that there is no warrant for taking
any evidence at all at a hearing under s. 68D(2). It seems to us, considering
the nature of the objections and the purpose for which the hearing is given,
that production of evidence, either oral or documentary, is comprehended within
the hearing contemplated in s. 68-D(2).
The officer therefore was wrong in loading
that it was not open to the parties to produce evidence before him and they
were confined only to submit their arguments on the basis of the draft scheme
on the one hand and their written objections on the other.
We may however point out that the production
of evidence (documentary or oral) does not mean that the parties can produce
any amount of evidence they like and prolong the proceedings inordinately and
the State Government when giving the hearing would be powerless to check this.
We need only point out that though evidence may have to be taken under s.
68-D(2) it does not follow that the evidence would be necessary in every case.
It will therefore be for the State Government, or as in this case the officer
concerned, to decide in case any party desires to lead evidence whether firstly
the evidence is necessary and relevant to the inquiry before it. If it
considers that evidence is necessary, it will give a reasonable opportunity to
the party desiring to produce evidence to give evidence relevant to the enquiry
and within reason and it 985 would have all the powers of controlling the
giving and the recording of evidence that any court has. Subject therefore to
this over-riding power of the State Government or the officer giving the
hearing, the parties are entitled to give evidence either documentary or oral
during a hearing under s. 68-D(2).
In view of what we have said above the
approach of the officer in this case was wrong on both the points. He was wrong
in his view that it was not open to him to reject the scheme in toto and
withhold approval altogether. He was also wrong in the view that it was not
open to him to take evidence, whether oral or documentary, though of course, as
we have said above the control on this evidence must be in him. The result of
this wrong approach to our mind has certainly been that the appellant did not
get a hearing to which he was entitled under s. 68.D(2). In the circumstances
we must hold that the approval of the scheme was without a proper hearing under
s. 68-D(2), which, even though arguments were heard in full in this case,
vitiates the approval given to the scheme by the officer concerned. We
therefore allow the appeal and set aside the order of the officer concerned
approving the scheme and direct that the draft scheme be reconsidered by the
said officer or such other officer as the State Government may appoint
hereafter after giving a hearing in the light of the observations we have made
above. The appellant will get his costs from the State of Rajasthan.
In the circumstances no order is necessary in
the writ petition, which is hereby dismissed. We pass no order as to costs in
the writ petition.
Petition dismissed.
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