Birajmohan Das Gupta Vs. The State of
Orissa & Ors [1961] INSC 332 (28 November 1961)
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1967 AIR 158 1962 SCR (1) 681
ACT:
Road Transport-State Transport Undertaking-
Scheme-Approval by Minister-Bias of Minister- Validity of scheme-Notice for
adjourned date of hearing-If necessary-Omission of date of operation of route
in final scheme-Transport Controller- Authority to publish scheme-Orissa Rules
framed under Ch. IV A of Motor Vehicles Act, rr. 2 (vi), 8-Motor Vehicles Act
1939 (4 of 1939), ss. 680, 68D (2).
HEADNOTE:
The validity of a scheme of road transport
service approved by the Government of Orissa under s. 68D (2) of the 682 Motor
Vehicles Act, 1939, was challenged by the petitioners on the grounds (1) that a
proper notice was not given for the hearing of objections to the scheme, (2)
that the Minister for Transport who approved of the scheme was biased, (3) that
the final scheme did not mention the date on which it was to come into
operation, and (4) that the Transport Controller who published the scheme had
no authority to do so.
Held, that; (1) r. 8 of the Rules framed by
the Orissa State Government under Ch. IVA of the Motor Vehicles Act, 1939,
applied only to the first date to be fixed for hearing, and that if for any
reason the hearing was adjourned, it was not necessary to give a fresh notice
under the rule for the adjourned date of hearing;
(2) the statement made by the minister in
answer to a question put in the legislative assembly that the Government had
decided to take over all the routes from April 1, 1961, eliminating all private
operators, was merely an indication of the Government's policy and that the
minister could not be said to be personally biased;
(3) the approved scheme was not invalid for
the reason that the actual date of operating the route was not mentioned in the
final scheme, as required under r. 3 (vi) of the Rules, inasmuch as the
notification publishing the final scheme referred to the draft scheme which
contained that date and said that the draft scheme was approved, and,
consequently, the rule must be considered to have been substantially complied
with; and (4) the Transport Controller, being the Chief Officer of the State
Transport Undertaking, had the authority to publish the scheme under s. 68C of
the Act since the section provided that the State Transport Undertaking
"shall cause it to be published" which meant that some officer of the
Undertaking would have it published in the Gazette.
ORIGINAL JURISDICTION: Petitions Nos. 117 and
137 of 1961.
Petition under Art 32 of the Constitution of
India for enforcement of Fundamental Rights.
L. K. Jha and R. Patnaik, for the petitioner
(in Petn. No 117 of 1961).
C. B. Agarwala and R. Patnaik, for the
petitioner (in Petn. No. 137 of 1961).
A. V. Viswanatha Sastri, B. R. L. Iyengar and
T. M. Sen, for the respondents.
683 1961. November 28. The Judgment of the
Court was delivered by WANCHOO, J.-These two petitions challenge the validity
of a scheme of road transport service approved by the Government of Orissa
under s. 68D (2) of the Motor Vehicles Act, No. IV of 1939 (hereinafter called
the Act). A large number of grounds have been raised in the petitions but we
are now concerned with only six points urged on behalf of the petitioners and
we shall deal with only those points. No arguments were addressed on the other
points raised in the petitions and it is therefore not necessary to set them
out. The six points which have been raised before us are these:-
1. No hearing was given to the petitioner in
petition No. 117 as required by s. 68D (2) and the Rules framed under Chap.
IV-A.
2. The minister who heard the objections
under s. 68D (2) was biased and therefore the approval given to the scheme is
invalid.
3. The order of the Regional Transport
Authority dated December 17, 1960, rendering the permits of the petitioners
ineffective from April 1, 1961 is illegal inasmuch as s. 68 F and r. 10 framed
under Chap. IV-A were violated.
4. The State Transport Undertaking did not
apply for permits six weeks before April 1, 1961, as required by s. 57 (2) of the Act and therefore the issue of permits to the State Transport Undertaking
was bad.
5. The final scheme did not mention the date
from which it was to come into operation as required by r. 3 (vi) of the Orissa
Rules and was therefore bad.
6. The Transport Controller who published the
scheme had no authority to do so.
684 We propose to take these points one by
one.
Re. 1.
The contention of the petitioner is that the
minister heard the objections on September 21, 1960, and passed his orders approving the scheme on September 22, 1960. The notice however issued to the
petitioner of the date of hearing was received by him on September 23, 1960, and as such as there was no opportunity for the petitioner to get a hearing
before the minister and consequently the scheme which was approved in violation
of s.
68D (2) and r. 8 was invalid. It appears that
the draft scheme was published on July 29, 1960.
Objections were invited from the operators
and members of the public thereto. The petitioner filed his objection on August 24, 1960. The date which was originally fixed for hearing of objections was
September 16, 1960, and it is not disputed that the notice of that date was
given to all objectors as required by s. 68D(2) and the Rules. The petitioner,
however, did not appear on September 16, 1960, which was the first date of
hearing. Many other objectors appeared on that date and prayed for time.
Consequently the hearing was adjourned to September 21. As however the
petitioner was absent a fresh notice was sent to him as a matter of abundant
caution. That notice could not be delivered to him before September 21, 1960,
as he was absent from his address and he was actually served on September 23,
1960- The petitioner's complaint therefore is that as he was not served with
notice about the hearing on September 21, 1960 there was no compliance with s. 68D
(2) and the Rules framed in that connection under Chap. IV-A.
On these facts, we are of opinion that there
is no force in the contention raised on behalf of the petitioner. What r. 8 of
the Orissa Rules requires is that ten days' clear notice has to be given of the
time, place and date of hearing to all 685 objectors. This was undoubtedly
done, for the date originally fixed for hearing was September 16, 1960. Thereafter the hearing was postponed to September 21 at the instance of the objectors. It
was in our opinion not necessary to give a fresh notice giving ten clear days
as required by r. 8, for this adjourned date. Rule 8 only applies to the first
date to be fixed for hearing. Thereafter if the hearing is adjourned, it is in
our opinion unnecessary to give a further notice at all for the adjourned date.
It was the duty of the petitioner after he had received notice of the first
date to appear on that date. If he did not appear and the hearing had to be
adjourned on the request of the objectors, or for any other reason, to another
date, no further notice was necessary of the adjourned date. It is true that
notice was given to the petitioner of the adjourned date; but that was in our
opinion as a measure of abundant caution. The rule does not however require
that a fresh notice must be given of the adjourned date of hearing also. In the
circumstances we reject this contention.
Re. 2.
Reliance is placed on two circumstances to
show that the Minister was biased and therefore the hearing given by him was no
hearing in law. In the first place, it is said that in answer to a question in
the Orissa Legislative Assembly as to when the Government was taking over the
privately operated motor routes, the Transport Minister (who eventually heard
the objections) replied that the Government had decided to take over all the routes
from April 1, 1961, eliminating all private operators. It is urged that this
shows that the Transport Minister was biased and was determined whatever
happened to push through the scheme so that it may become operative from April 1, 1961.
We are of opinion that there is no force in
this contention 686 of bias based on this reply of the Minister to a question
put in the Legislative Assembly. The Government was asked when it was intending
to take over the privately operated motor routes and its reply was really a
matter of policy, namely that it was the policy of the Government to take over
all the routes eliminating all private operators from April 1, 1961. This did
not mean that even if, for example, the scheme was not ready or if the scheme
put forth was found by the Government to be open to objection, the Government
would still force through the taking over of the privately operated routes from
April 1, 1961 ;
This answer was merely an indication of the
Government's policy, namely, that the Government was intending to take over all
private operated routes from April 1, 1961 ; but whether in actual fact all the
routes would be taken over on that date would depend upon so many circumstances
including finance. It cannot be said that this announcement of the Government's
policy in answer to a question put in the legislative assembly meant that the
Government was determined whatever happened to eliminate all privately operated
routes by April 1, 1961. We are therefore of opinion that the Minister cannot
be said to be personally biased because this policy statement was made by him
in answer to a question put in the legislative assembly.
Another reason that is urged to support the
personal bias of the Minister is that the Minister is said to have stated to
certain persons that as the privately operated routes in the district of Ganjam
which was his constituency had been nationalised he was determined to
annihilate all the private bus operators in the district of Cuttack also. This
allegation has been denied on behalf of the State. It is however urged that no
affidavit has been filed by the Minister who alone was likely to have knowledge
on this point. It appears however that the petitioners also have no personal
knowledge of 687 any such determination on the part of the Minister. Thy based
their allegation on an alleged talk between the Minister and two citizens of
Cuttack, namely, a municipal councilor and an advocate. No affidavit however of
the two persons concerned has been filed to support this allegation. In the
circumstances we are of opinion that it was not necessary for the Minister to
file an affidavit for the allegation on behalf of the petitioners was also
based on here say and it has been contradicted by similar evidence on behalf of
the State. It would have been a different matter if the two persons concerned
had made affidavits from personal knowledge. There is therefore no force in
this contention and we are of opinion that it cannot be said on the facts of
this case that the Minister was biased.
Re. 3 and 4.
We propose to take these points together. We
are of opinion that the petitioners cannot be allowed to raise these points for
the first time in arguments before us, for there is no mention of these points
in their petitions. It appears that in an affidavit filed ill connection with
stay, something was said on these two points; but the stay matter was never
pursued and never came up before this Court for hearing. In the circumstances
there was no reply from the State Government to these allegations. We are of
opinion that the petitioners cannot be allowed to raise these points now for
the first time in arguments when they did not raise them in their petitions and
consequently reject them.
Re. 5.
It is contended that under r. 3 (vi) of the
Orissa Rules, the draft scheme or the approved scheme has to be published in
the official gazette under ss. 68D and 68E and has to contain certain
particulars including the actual date of operating 688 the route. Now what
happened in this case is that the draft scheme mentioned the date of operation
as April 1, 1961. This was in accordance with r. 3 (vi). When the final scheme
was published, this date was not mentioned in it. We will assume that r. 3 (vi)
requires that when the final scheme was published, the date should have been
mentioned. It seems to us that the rule so read has been substantially complied
with, for the notification publishing the final scheme refers to the draft
scheme and says that the draft scheme is approved and there is no mention of
any modification. In the circumstances it could in our opinion be not
unreasonable to read the date April 1, 1961, incorporated in the final scheme
by reference to the draft scheme. It would have been a different matter if the
draft scheme also did not contain the date of operation. We are therefore of
opinion that there has been substantial compliance with r.
3 (vi), and the final scheme cannot be said
to be bad for non-compliance with the rule. We therefore reject this
contention.
Re. 6.
It is urged in this connection that the
Transport Controller had no authority to publish the draft scheme. It is also
urged that the Transport Controller is not the State Transport Undertaking and
the notification under s. 68C does not show that the State Transport Undertaking
was of opinion that it was necessary to take over certain transport services
for the purpose mentioned in that section. The argument as raised before us is
really two-fold. In the first place it is urged that the Transport Controller
had no authority to publish the scheme. There is however no force in this
contention, for s. 68C requires that after the State Transport Undertaking has
formed the opinion required there under and prepared a scheme it shall cause
the scheme to be published. The Transport Controller 689 is the chief officer
of the State Transport Undertaking and we see nothing irregular if he publishes
the scheme prepared under s. 68C. The section lays down that after the scheme
has been prepared in the manner provided there under, the State Transport
Undertaking shall cause it to be published, which means that some officer of
the Undertaking will have it published in the gazette.
In the present case, the chief officer of the
Undertaking has got it published and this in our opinion is in sufficient
compliance with s. 68C.
The other part of the argument is that the
notification under s. 68C does not show that it was the State Transport
Undertaking which was satisfied that it was necessary to take action under that
section, for it says that "I, Colonel S. K. Ray, Indian Army (Retd.),
Transport Controller, Orissa, in-charge of State Transport Undertaking, Orissa,
am of opinion that for the purpose of providing an efficient, adequate and
economical and properly coordinated road transport service it is necessary
................." The argument is that it was not the State Transport
Undertaking which was satisfied but Col. S. K. Ray, Transport Controller, who
formed the necessary opinion under s. 68C. We find that this point was also not
taken in the petitions. All that was said in the petitions was that the
Transport Controller was only in-charge of the transport services in the State
and there was no State Transport Undertaking in the State of Orissa within the
meaning cl. (b) of s. 68A of the Act.
This case has been abandoned; but it is now
contended is that even though there may be a State Transport Undertaking in
Orissa that Undertaking was not satisfied that it was necessary to take action
in the manner provided in s. 68C. This in our opinion is a question of fact and
should have been specifically pleaded in the petitions so that the State may
have been able to make a reply. In the absence therefore of any averment on
this question 690 of fact, we are not prepared to allow the petitioners to
raise this point in arguments before us. In the circumstances we reject this
contention also.
The petitions therefore fail and are hereby
dismissed with costs-one set of hearing costs.
Petitions dismissed.
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