Sri Chand Vs. Government of U.P.
Lucknow & Ors [1985] INSC 184 (23 August 1985)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) MISRA, R.B. (J)
CITATION: 1986 AIR 242 1985 SCR Supl. (2) 688
1985 SCC (4) 169 1985 SCALE (2)351
CITATOR INFO:
F 1986 SC1719 (4) F 1987 SC1324 (2) RF 1992
SC1789 (5) D 1992 SC1888 (10)
ACT:
Constitution of India, 1950, Arts. 32 and 19
(1) (g) - Delay in performance of statutory duties - Whether violates
Fundamental Right - s. 68-D, Motor Vehicles Act, 1959.
Motor Vehicle Act 1939, S. 68 (C) and 68 (D)
- Draft scheme to operate stage carriages - Unreasonable delay in the approval
and publication of the scheme - Whether renders the scheme bad in law.
HEADNOTE:
The State Government of Uttar Pradesh after
overruling objections approved a draft scheme and published it under
sub-section (3) of section 68-D of the Motor Vehicles Act 1939 on 29th
September, 1959 to authorise the State Transport Undertaking of Uttar Pradesh
to operate state carriages on the inter-state route between Saharanpur and
Delhi to the total exclusion of all other operators. The validity of the scheme
was challenged before the High Court of Allahabad by 50 operators. The High
Court by its judgment dated October 30, 1961 directed the State Government not
to enforce the approved scheme against the said operators and also ordered that
a fresh enquiry into the question whether the scheme should be approved or not,
be held. The approved scheme became final as regards other operators. The
result was that while the 50 operators who had filed Writ Petitions were able
to operate their stage carriages on the route, those who had not filed the writ
petitions could not operate The U.P. State Road Transport Corporation however
commenced to operate its stage carriage too.
The respondent State Government has not been
able to hear the objections to the scheme as directed by the High Court in 1961
because of certain orders of injunction passed by the Civil Courts restraining
the State Government from proceeding with the hearing in suits filed by or at
the instance of one or the other of the 50 operators who have been running
their services on the route all these 24 years.
689 The petitioners in their petitions under
Art. 32 questioned the validity of the proceedings pending before the State
Government pursuant to the draft scheme published under Sec. 68-C of the Motor
Vehicles Act 1939.
Allowing the Writ Petitions, ^
HELD: 1. It 18 very strange that Civil Courts
have issued orders of injunction from time to time effectively preventing the
State Government from disposing of the matter. This is a case in which the
Civil Courts should not have issued orders of injunction st all since such
suits are barred under sec. 9 of the Cote of Civil Procedure. [690 H]
2. Delay in performance of statutory duties
amounts to an abuse of process of law and has to be remedied by the Court
particularly when the public interest suffers thereby.
1691 E-F] In the instant case, the delay is
in the order of 26 years. The situation created by the unreasonable delay in
the approval of the scheme has not merely resulted in the violation of Art 14
of the Constitution but also of the fundamental right of the other operators
guaranteed under Art 19 (1) (g) of the Constitution. Therefore, the draft
scheme published on February 26, 1959 ant the proceedings which have taken
place pursuant thereto are quashed. The State Government is directed not to
proceed with the bearing of the matter. It is open to the State Transport
Undertaking to publish a fresh draft scheme under Section 68-C of the Act if it
is necessary to do so. [692 C, 691 A-B] Yogeshwar Jaiswal etc. v. State
Transport Appellate Tribunal Ors A.I.R. 1985 S.C. 516, Phool Chand Gupta v. Regional
Transport Authority Ujjain Ors. [1985] Supp. 2 S.C.R. 682 followed.
ORIGINAL JURISDICTION: Writ Petition
(Civil) Nos. 1174 and 11851 of 1985.
(Under Article 32 of the Constitution of
India) U.R. Lalit and B.S. Chauhan for the Petitioner in W.P. No. 1174 of 1985
K.K. Venugopal and R.P. Singh for the petitioner in W.P. No. 11851 of 1985.
The Judgment of the Court was delivered by
690 VENKATARAMIAH, J. These two petitions are filed under Article 32 of the
constitution. The petitioners have questioned the validity of the proceedings
which are pending before the State Government pursuant to a draft scheme published
under section 68-C of the Motor Vehicles Act, 1939 (hereinafter referred to as
'the Act') on February 26, 1959 proposing to authorise the State Transport
Undertaking of Uttar Pradesh to operate stage carriages on the inter state
route between Saharanpur and Delhi to the total exclusion of all other
operators. After overruling the objections which had been received in response
to the said draft scheme the State Government approved the scheme and published
it under sub-section (3) of section 68-D of the Act on September 29, 1959. The
validity of the said approved scheme was challenged before the High Court of
Allahabad by 32 operators. By its judgment dated October 30, 1961 the High
Court of Allahabad directed the State Government not to enforce the approved
scheme against the said 32 persons who had filed the writ petitions and it
further directed that the State Government should hold a fresh enquiry if
necessary into the question whether the scheme should be approved or not.
Thereafter in another batch of writ petitions disposed of on February 7, 1962 a
similar order was passed in favour of 18 other petitioners. The approved
scheme, however, became final as regards other operators.
The result was that while the petitioners who
had filed the writ petitions were able to operate their stage carriages on the
route those who had not filed the writ petitions could not operate. The U.P.
State Road Transport Corporation however commenced to operate its stage
carriages too. Even though the judgment was delivered by the High Court of
Allahabad in the year 1961 it has not been possible for the State Government to
consider whether approval should be given to the draft scheme either with or
without modification as regards the 50 operators pursuant to the judgment of the
High Court. All the petitioners in the writ petitions who were permitted to
operate their vehicles have been running their services all these 24 years. It
has thus resulted in discrimination. We are informed that the State Government
has not been able to hear the objections to the scheme as per the judgment of
the High Court because of certain orders of injunction passed by the Civil
Courts restraining the State Government from proceeding with the hearing, in
suits filed by or at the instance of one or the other of the 50 operators who
have been running their services on the route in question. It is very strange
that the Civil Courts have issued such orders of injunction from time to time
thus effectively preventing the State Government from disposing of the matter.
We are of the view 691 that this is a case in which Civil Courts should not
have issued orders of injunction at all since such suits are barred under
section 9 of the Code of Civil Procedure. Be that it as it may, the situation
created by the unreasonable delay in the approval of the scheme has not merely
resulted in the violation of Article 14 of the Constitution but also of the
fundamental right of the other operators guaranteed under Article 19 (1) (g) of
the Constitution. This Court in Yogeshwar Jaiswal etc. v. State Transport
Appellate Tribunal and Ors. A.I.R. 1985 S.C. 516, has observed at page 518-519
thus:
"The provisions of section 68C and
section 68D of the Act clearly indicate that any scheme which is intended for
providing efficient, adequate, economical or properly co-ordinated transport
service should be approved either as it is or in a modified form or rejected,
as the case may be, within a reasonably short time as any extraordinary delay
is bound to upset all or any of the factors, namely efficiency, adequacy,
economy or co-ordination which ought to govern an approved scheme under Chapter
IVA of the Act. On account of various reasons such as the growth of population
and the development of the geographical area adjacent to the area or route in
question, any unreasonable delay may render the very proposal contained in the
scheme antiquated, outmoded and purposeless. Hence there is need for speedy
disposal of the case under section 68D of the Act............ Delay in
performance of statutory duties amounts to an abuse of process of law and has
to be remedied by the court particularly when the public interest suffers
thereby. Hence if there is an unreasonably long and unexplained delay in the
State Government passing orders under section 68D of the Act, the Court may
issue a mandamus to the State Government to dispose of the case under section
68D of the Act within a specified time or may in an appropriate case even issue
a writ in the nature of certiorari quashing the scheme ant writ in the nature
of prohibition directing the State Government not to proceed with the
consideration of the scheme published under section 68C of the Act because
section 68D does not confer an unfettered discretion on the State Government to
deal with the case as it likes. The power under section 68D has to be exercised
having due regard to the public interest." 692 Following the observations
in the above decision in Yogeswar Jaiswal's case (supra), in Phool Chand Gupta
v.
Regional Transport Authority, Ujjain & Ors.
[1985] Supp. 2 S.C.R. 682 we have quashed a draft scheme published in the year
1965 since it had not been approved by the State Government of Madhya Pradesh
and had not been published as required under section 68-D of the Act even
though a period of 20 years had elapsed from the date of publication of the
draft scheme. In the instant case the delay is in the order of 26 years. In
view of the above decisions we allow these writ petitions and quash the
impugned scheme published on February 26, 1959 and the proceedings which have
taken place till Now pursuant thereto and direct the State Government not to
proceed with the hearing of the matter. It is now open to the State Transport
Undertaking or Uttar Pradesh to publish a fresh draft scheme under section 68-C
of the Act if it 18 of opinion that it is necessary to do 80. We, however,
permit the State Transport Undertaking to run the stage carriage vehicles which
it is now running on the route in question under permits issued pursuant to the
scheme which is now quashed, till 28.2.1986 or till they are replaced by
temporary permits to be issued under sub section (LA) of section 68-F of the
Act after the publication of a fresh draft scheme or by permits issued under
Chapter IV of the Act, whichever is earlier.
The writ petitions are accordingly allowed.
There shall be order as to costs.
M.L.A. Petitions allowed.
Back
