Sobhraj Odharmal Vs. State of
Rajasthan [1962] INSC 259 (17 September 1962)
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER
SUBBARAO, K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1963 AIR 640 1962 SCR Supl. (1) 99
CITATOR INFO :
R 1970 SC 898 (37A) F 1971 SC1986 (10)
ACT:
Road Transport--Scheme--Objections--Notice of
hearing-Whether sufficient--Approval of Scheme--Cancellation of permits of
private operators--State plying vehicles without permits--If infringes fundamental
right-Motor Vehicles Act, 1939 (4 of 1939), ss. 42 (1) and 68R--Rajasthan State
Road Transport Service (Development) Rules, 1960, r. 7(4).
HEADNOTE:
A scheme for operating a motor transport
service on the Jaipur-Kotah route by the State Roadways was published in the
Government Gazette. 61 private operators on the route filed objections to the
scheme. The Legal Remembrancer heard the objections and rejected them. The
scheme was approved by the State Government and was published. Some of the .operators
moved the High Court for a writ quashing the scheme. The High Court allowed the
petition, set aside the scheme and directed the Legal Remembrancer to rehear
the objections. The Legal Remembrancer sent individual notices by registered
post to the 61 operators fixing the date of hearing and also published the
notice in the Gazette.
Notices were delivered to 13 operators and 39
were returned unserved. The Legal Remembrancer heard the objections and
approved the scheme, which was then published in the Gazette. The Regional
Transport Authority issued an order declaring that the Roadways shall operate
on the route and cancelled the permits of the private operators. The Roadways,
commenced operating without permits but subsequently they were granted permits.
The appellants moved the High Court for a writ to quash the scheme but the High
Court rejected the application. The appellants appealed to the Supreme Court
against the order of the High Court; one of them filed a petition for a writ
alleging that his right to carry on business was infringed. The appellants
contended that the proceedings before the Legal Remembrancer were illegal as
notices were not served upon all the operators, that r.7(4) which provided that
on the publication of the notice in the Gazette it shall be presumed that all
the parties concerned have been duly intimated was illegal and that the plying
of the vehicles by the Roadways without obtaining permits infringed 100 the
fundamental rights of the appellants to carry on their Held, that the
appellants were duly served with the notice of hearing of the objections before
the Legal Remembrancer, and if they failed to appear before him to press their
objections they could not challenge the scheme after it was duly published and
had become final. The Legal Remembrancer was of the opinion that even those
operators who had not been personally served had notice of the hearing. The
opinion' of the Legal Remembrancer was based upon evidence and he did not rely
upon the presumption under r.7(4). The High Court had also held that the
objectors were duly served and the Supreme Court, according to its settled
practice, did not interfere with such findings.
Held, further, that no fundamental right of
the appellants was infringed. Once a scheme was legally and properly made and
published, the permits' of the private operators on the route could be lawfully
cancelled and they Would not be entitled to challenge the plying of the
vehicles by the State Roadways with or without permits. Since the permits of the
appellants were lawfully cancelled their rights Were extinguished and they had
no fundamental rights which could be infringed.. On the finalisation of the
scheme the Regional Transport Authority had no option but to grant permits to
the State Roadways.
Abdul Gafoor v. State of Mysore, [1962] 1
S.C.R. 909, 'Samarth Transport Co. (P) Ltd. v. Regional Transport Authority,
[1961] 1 S.C.R. 631 and Kalyan Singh v. State of U. P. [1962] Supp. 2 S.C..R.
76, referred to.
CIVIL APPELLATE ORlGINAL JURISDICTION Civil
Appeal 471 of 1962.
Appeal from the judgment and decree dated 9th
May, 1962, of the Rajasthan High Court in D. B. Civil Misc. Write No. 214 of
1962.
WITH Writ Petition No'. 66 of 1962.
Petition under Art. 32 of the Constitution of
India for the enforcement of fundamental rights.
M. C. Setalvad Attorney-General for India, K.
Garg, D. P. Singh, S. C. Agarwala and M. K. R.Mamurthi, for the appellants and
the petitioner.
101 C. K. Daphtary, Solicitor-General for
India, S. K. Kapoor, K. K. Jain and P. D. Menon, for the respondents (in the
appeal and the petition).
1962. September 17. The judgement of the
Court was delivered by SHAH J.-Questions relating to the validity of a scheme
approved by the State of Rajasthan under s.68D of the Motor Vehicles Act, 1939(4
of 1939) and its effect are raised by the appeal and the writ petition. Inthe
appeal the validity of the scheme is challenged on the plea that the appellants
were denied reasonable opportunity of being heard in support of their
objections before the scheme was approved. In the writ petition it is submitted
that the fundamental right of the petitioner to carry on business of a 'motor
transport operator is infringed by the State of Rajasthan plying its buses
along the route covered by the scheme without obtaining permits under s.42(1)
of the Motor Vehicles Act.
A scheme for operating a motor transport
service on the Jaipur-Tonk-Deoli-Kotah route, was published on September 10,
1960 in the Rajasthan Government Gazette, by the Rajasthan State Roadways which
is a State Transport Undertaking within the meaning of s. 68A(b) of the Motor Vehicles
Act, 1939. Sixty-one persons, including certain holders of stage carriage
permits authorising them to ply stage carriages on the route, lodged objections
to the scheme with the Secretary., Government of Rajasthan, Transport
Department, Jaipur within the period prescribed.
The objections were heard by the Legal
Remembrancer of the State and were rejected by order dated February 2, 1961.
The scheme was then approved by the State
Government and was published under s 68D of the Motor Vehicles Act and r.8 off
the Rajasthan State Road Transport Service (Development) Rules, 1960. Some
holders of stage carriage permits applied under Arts.226 and, 227 of the
Constitution to the High Court ;of Rajasthan for the 102 issue of writs
cancelling the scheme. The High Court by order dated May 3, 1961, allowed the
petition and set aside the scheme. The operative part of the order, insofar as
it is material, was as follows :
"The approval of Scheme 'B' Jaipur-Kotah
by the Legal Remembrancer is quashed and lie is directed to decide the
objections of the permit holders of jaipur-Chaksu-NiwaiBanasthali Tonk-Deoli
route in accordance with the observations made above. The Notification of the
State Government, publishing the scheme is also set aside." Thereafter the
Legal Remembrancer sent individual ,notices by Registered. post pre-paid and
addressed to all the sixtyone objectors fixing June 26, 1961, for hearing
objections, and also published in the State Government Gazette a general notice
to that effect. Out of sixty-one notices despatched, thirteen were duly
received by the addressees and thirty-nine were returned unserved ; about the
remaining nine notices no intimation was received from the Postal Department,
till.' June 19, 1961. The Legal Remembrancer commenced hearing the objections.
The proceeding lasted from June 1961 to March 1962. There were fifteen
hearings, at which evidence was recorded and oral arguments were heard. The
Legal Remembrancer by his order dated March 23, 1962, approved the scheme
subject to certain modifications.
The scheme as approved was then published on
April 2, 1962, in the Government Gazette. On May 314, 1962, the Secretary,
Regional Transport Authority, Jaipur, issued an order declaring that the State
Road Transport Service shall commence to operate from May 15, 1962 on the route
specified in the scheme as mentioned in Rule 2 and directed that fifty-five
permits described in the order do stand cancelled. Pursuant to the scheme the
State Transport Undertaking commenced operating its vehicles upon the route
without obtaining permits under s. 42 (1) o 103 the Motor Vehicles Act.
Subsequently, applications were submitted to the Regional Transport Authority
for permits and the same were granted to the State Transport Undertaking on
July 28, 1962.
In the mean time, sixteen persons-who will be
hereinafter referred to collectively as appellants claiming that they had not
received notice of the proceedings before the Legal Remembrancer after the
scheme was quashed by the High Court of Rajasthan and the proceedings were
remanded applied to the High Court under Arts. 226 and 227 of the Constitution
for writs of certiorari quashing the order of the Legal Remembrancer dated
March 23, 1962, and all proceedings after May 31, 1961, regarding the scheme of
nationalisation of Road Transport Service on the route in question, and the
scheme published in the Rajasthan Government Gazette on April 2, 1962, and
writs of prohibition restraining the State, of Rajasthan, the Regional
Transport Authority, the Legal Remembrancer and the Rajasthan State Transport
Undertaking from implementing the scheme and further restraining the Transport
authorities from cancelling their permits for plying vehicles on the route and
restraining the Regional Transport Authority from granting permits to the
Rajasthan State Transport Undertaking in pursuance of the impugned scheme. The
appellants also claimed a declaration that cl. (4) of r. 7 of the Rajasthan
State Transport (Development) Rules, 1960 and the public notice dated May 30,
1961, published in the Rajasthan Government Gazette dated May 31, 1961, "
were illegal, null and void and ultra vires" and a declaration that the proceeding
before the Legal Remembrancer was taken without affording any real opportunity
to the appellants to produce their evidence and without hearing their
objections in accordance with law.
It was urged by the appellants, inter alia,
that as only thirteen objectors were served and the remaining 104 forty-eight
were not served with notice of hearing, the proceeding commenced before the
Legal Remembrancer, relying upon the presumption of due service under cl. (4)
of r. 7, was illegal. The High Court, without issuing rule upon the State and
the Transport Authorities, dismissed the petition, holding that r. 7 (4) was
not ultra vires the Motor Vehicles Act, and that it was difficult, on the
material placed before the Court to hold that the Legal Remembrancer had not in
fact determined the question of regularity of service of notice upon the
objectors before he commenced hearing the objections.
Against the order dismissing the petition
Appeal No. 471 of 1962 has been filed by the appellants in this Court. A
petition has also been filed by one of the appellants in this Court under Art.
32 of the Constitution for a writ of mandamus restraining the State of
Rajasthan, the Rajasthan State Transport Undertaking and the Regional Transport
Authority, Jaipur Region, from "commencing their transport service"
and from interfering with the right of the petitioner in the exercise of his
right to ply stage carriages on that route under a permit issued by the
Regional Transport Authority and which was, as originally granted, valid up to
November 30, 1963. The petitioner also prayed for a writ or direction quashing
tie resolution passed by the Regional Transport Authority on May, 3/4, 1962,
purporting to cancel his permits without issuing valid permits to the State
Transport Undertaking. The principal ground in support of the petition was that
the State of Rajasthan and the State Transport Undertaking could not commence
to ply their vehicles on the route without obtaining valid permits under s. 68F
and s. 42 (1) of the Motor Vehicles Act.
By s. 68C of the Motor Vehicles Act, 1939 (4
of 1939) a State Transport Undertaking, if it be of the opinion as to certain
matters specified in the section, is authorised to prepare a scheme giving
particulars 105.
of the nature of the service and the area or
route to be covered thereby, and to publish it in the Government Gazette and in
such manner as the State Government may direct. Persons affected by the scheme
may lodge objections to the scheme within the period prescribed. The objections
are thereafter heard by the State Government after giving opportunity to the
objectors to support them. The State Government may, thereafter, approve or
modify the scheme, and the scheme so approved or modified when published in the
official Gazette becomes final. Section 68F (1) requires the Regional Transport
Authority, notwithstanding anything to the contrary contained in Ch. IV, to
issue permits to the State Transport Undertaking for plying vehicles when that
Undertaking applies for permits in pursuance of an approved scheme. Sub-section
(2) of s. 68D provides that for the purpose of giving effect to the approved
scheme in respect of a notified area or notified route, the Regional Transport
Authority may, by order refuse to entertain any application for renewal of any
other permit, cancel or modify an existing permit. Section 681 confers power
upon the State Government to make rules for the purpose of carrying into effect
the provisions of Chapter IVA and in Particular for certain specific matters
set out therein.
The Government of Rajasthan framed under s.
68 I rules called the Rajasthan State Transport Service (Development) Rules,
1960. Rule 3 prescribed the authority which was to prepare the scheme on behalf
of the State Transport Undertaking, and the matters in respect of which
provisions were to be made in the scheme. Rule 4 prescribed the method of
publication and r. 5 the manner of filing objections. It was provided by cl.
(4) of r. 5 that the memorandum of objection shall contain, amongst other, the
following information "(a) Full name and address of the objector on which
the service of notice or order under these Rules maybe made;" 106 Rule 7
dealt with the procedure for consideration and disposal of objections. By cl.
(1) it was provided that the objections shall be considered by an officer
authorised to do so by the Governor. The officer so authorised had by cl. (2)
to fix the date, time and place for hearing objections and to issue notice
thereof to the objectors and the General Manager of the State Transport
Undertaking asking them to appear before him. Clause (3) prescribed the method
of service of notice, that "the notice under sub-rule (2) shall be sent by
Registered post and shall be posted at least fourteen days before the date
fixed for hearing". Clause (4) provided that "notwithstanding
anything in sub-r. (3) a general notice may also be given regarding the date,
time and place of hearing of objections by publication thereof in the official
Gazette and where notice has been issued in this manner, it shall be presumed
that all the parties concerned have been duly intimated". Rule 8
prescribed the from in which the approved scheme shall be published and Rule 9
provided for the consequences of publication of the scheme.
The appellants contend that they did not
receive the individual notices sent to them by registered post and that they
"did not at all come to know about the hearing or the decision of the
aforesaid objections by the Legal Remembrancer till the approved scheme
relating to JaipurTonk-Deoli-Kota route was published in the Rajasthan
Government Gazette dated April 2, 1962". Opportunity to be afforded to the
objector under s. 68D(1) must of course be a reasonable opportunity : he must
have advance notice of the date, time and place and designation of the
authority who will hear the objections. The authority hearing the objections
must therefore give notice of the date, time and place for hearing the
objections. Such notice must afford reasonable opportunity to the objector to
appear before the authority and substantiate his objections. On behalf of the
appellants it was submitted 107 that the notice sent by registered post which
was not served because it was never tendered to the addressees, followed by
publication of the notice in the Government Gazette did not amount to affording
reasonable opportunity to the objectors to substantiate their objections to the
scheme. It was contended that cl. (4) of r. 7 which raises a presumption of
service on publication of notice in the Government Gazette is invalid, because
the State Government is not entitled to deprive the objectors of a reasonable
opportunity of being heard by prescribing a presumption of service of notice of
hearing merely from publication of the notice in the Government Gazette. But in
considering this case it is unnecessary to embark upon the larger question
which was canvassed at the Bar, whether notice given in the manner prescribed
by cl. (3) r. 7 i.e. an individual notice sent by the registered post followed
by a general notice published in the Government Gazette must, because of the
presumption contained in cl. (4) of r. 7, always be considered as affording
reasonable opportunity to the objectors. As already observed sixty-one
objectors had filed objections before the Legal Remembrancer in the first
instance. They appeared before the Legal Remembrancer and objected to the
scheme. The scheme was approved by the Legal Remembrancer but the order of the
Legal Remembrancer approving the scheme was set aside by the High Court in
certain petitions filed before it. It is admitted by the appellants that they
knew about the proceeding commenced in the High Court challenging the validity
of the scheme, and the order passed by the High Court remanding it to the Legal
Remembrancer for hearing the objections. The appellants, however, contend that
thereafter they 'did not receive any notice of the hearing pursuant to the
order of remand and they did not come to know of the proceeding before the
Legal Remembrancer till the scheme was published by the Government of
Rajasthan.
But the Legal Remembrancer was primarily the
authority to be satisfied whether the 108 objectors had adequate notice. There
is nothing to show that he even relied upon the presumption of service arising
from the publication of, the notice under r. 7(4). , The Legal Remembrancer was
appraised of the fact that individual notice was received only by thirteen
individual objectors by registered post and he had manifestly to consider
whether the proceeding for hearing the objections could be started.
The Legal Remembrancer had, when he commenced
hearing, the following matters before him, that all the objectors were aware of
the proceeding before the High Court and the order passed therein, that he had
directed individual notices under r. 7 cl. (3) and the same were duly dispatched,
that a general notice was also published in the Government Gazette, that the
scheme was an integrated scheme in respect of a route on which stage carriages
were being plied by the objectors, and the objectors were vitally interested in
plying and continuing to ply their buses and the publication of the scheme
constituted a serious threat to their business. It is also manifest that he had
to deal with operators of Motor Vehicles-a class of persons-who in order to
carry on efficiently their business have constantly to acquaint themselves with
the State Government Gazette in which the rules framed under the Act, the
schemes, notices and the directions which the Government issue for acquiring
control over Road Transport are published as required by the Motor Vehicles Act.
There is no reference in the order sheet dated June 19, 1961 to the presumption
which arises under r. 7(4). It appears that the Legal Remembrancer was of the opinion
that those who had not been personally served with individual notices sent by
registered post had still notice that the proceeding was to commence on June
26, 1961.
The inference raised by the Legal
Remembrancer cannot be said to be based on no evidence. The High Court has also
held that the Legal Remembrancer was satisfied about service of the notice on
the objectors in accordance with law, and that in proceeding to hear the
objections 109 the Legal Remembrancer acted according to law. The finding of
the High Court that the objectors were duly served with the notice was one of
fact, and according to the settled practice of this Court, no interference with
I the conclusion of' the High Court would be called for. If the objectors were
duly served and they failed to appear to press their objections before the
Legal Remembrancer, they cannot seek to challenge the scheme after it is duly
published and which by the statute is declared final.
That brings us to the question whether any
fundamental right of the petitioner in the writ petition, .to carry on business
was infringed by the State Transport undertaking plying its vehicles without
obtaining permits under s. 42 (1). The scheme was by order dated March 23,
1962, of the Legal Remembrancer who was invested with authority to hear
objections thereto, duly approved. The scheme so approved by the Legal
Remembrancer was published in the Government Gazette, and thereby it was
directed that permits of 55 operators (amongst whom is the petitioner) on the
route in question shall be cancelled, and the Regional Transport Authority in
exercise of the powers conferred under s. 68F (2) and in pursuance of the
scheme ordered that those permits be cancelled.
Sub-section (1) and (2) of s. 68F deal with
different matters; exercise of the powers under cl. (2) is not dependent upon
the grant of any permits to the State Transport Undertaking. By sub-s. (1) a
statutory duty is imposed upon the Regional Transport Authority to grant
permits to the State Transport Undertaking, if application is made in that
behalf pursuant to an approved scheme. To such an application the provisions
contained in Ch. IV such as ss. 47, 48, 57 and allied sections will not apply.
It was observed by this Court in Abdul Gajoor v. State of Mysore (1), "In-order
that the approved scheme may be implemented the State Transport Undertaking
which is to run and operate the Transport Service under the (1) [1962] 1 S.C.R.
909.
110 scheme must have a permit from the
Regional Transport Authority. Section 68-F (1) provides that the State
Transport Undertaking will have to apply for a permit (i) in pursuance of the
approved scheme and (ii) in the manner specified in Chapter IV. Once that is
done, the sub-section proceeds to say "A Regional Transport Authority shall
issue such permit to the State Transport Undertaking", and this
""notwithstanding anything to the contrary contained in Chapter
IV". It appears clear to us that the provisions of s. 57 (3) have nothing
to do with these matters dealt with by s. 68-F (1). x x x x Under s. 68-F (1)
as already mentioned the Regional Transport Authority has no option to refuse
the grant of the permit provided it has been made in pursuance of the approved
scheme and in the manner mentioned in Chap. IV. The duty of the Regional
Transport Authority on receipt of the application from the State Transport
Undertaking for a permit is therefore to examine the application for itself to
see whether it is in pursuance of an approved scheme and secondly whether it
has been made in the manner laid down in Chapter IV. This is a duty which the
Regional Transport Authority has to perform for itself and there is no question
of its asking for assistance from the public or existing permit holders for
Transport Services on the route. Neither the public in general nor the permit
holders has any part to play in this matter." Sub-section (2) authorises
the Regional Transport Authority to take action or to make orders to effectuate
the scheme and to implement its directions. In the Samarth Transport Co. (P)
Ltd. v. The Regional Transport Authority, Nagpur (1), dealing with the
conditions under which the power under s.68-F(2)(a) may be exercised it was
observed that "this power does not depend upon the presentation of an
application by the State Transport Undertaking for a pennit. This power is
exercisable when it is brought to the notice of the authority that there is an
(1) [1961] 1 S.C.R. 631.
111 approved scheme, and to give effect to
it, application for renewal cannot be entertained." In Kalyan Singh v.
State of Uttar Pradesh it was held that an order passed by the Regional
Transport Authority under s.68-F(2) pursuant to a direction under a scheme duly
approved and published is purely consequential upon the scheme, and is not open
to challenge. In considering the effect of cl.(2) of s.68F it was observed in
that case that "the Regional Transport Authority was by the terms of the
scheme left no discretion in the matter. It was .by the scheme that the right
of the appellant was restricted and if the scheme became final and binding the
Regional Transport Authority had no authority to permit the appellant to ply
his vehicles". It was further observed that "if the right of the
appellant to ply his buses is lawfully extinguished he is not entitled to maintain
an appeal challenging the right of the State Transport Undertaking to ply their
buses with or without permits. Nor is any fundamental right of the appellant
infringed by the State Transport Undertaking plying its buses without permits,
and a petition under Art.
32 of the Constitution cannot be maintained
unless a fundamental right of the applicant is infringed". It was
therefore held in that case that if a valid scheme contains a direction' for
cancellation of outstanding permits and the permits are in fact cancelled by
order of the Regional Transport Authority, it is not open to the operator whose
permits are cancelled to claim that the State Authority which commenced to
operate its vehicles without obtaining permits under s.42 of the Motor Vehicles
Act infringes the right of the operator to carry on his business. The right of
the operator, having been lawfully extinguished .pro tanto by the scheme and
the consequential order under s.68F(2), he is not entitled to have resort to
this Court under Art. 32 of the Constitution for protection of his alleged
right.
The scheme was duly published and the permits
issued in favour of fifty-five operators whose names (1) [1962] Supp. 2 S.C.R.
76.
112 are set out in the order dated May 3/4,
1962 were lawfully cancelled. The objectors had since cancellation of their
permits no fundamental right which could be infringed by the State Government
plying its vehicles with or without permits issued by the Regional Transport
Authority under s.42(1) of the Motor Vehicles Act.
The appeal and the writ petition therefore
fail and are dismissed with costs. There will be one hearing fee.
Appeal and writ petition dismissed.
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