T.N. Nataraj Vs. State of Karnataka [1993] INSC 524 (14 December 1993)

SAHAI, R.M. (J) SAHAI, R.M. (J) AHMADI, A.M. (J) CITATION: 1994 SCC (2) 32 JT 1993 Supl. 190 1993 SCALE (4)670

ACT:

HEADNOTE:

The Judgment of the Court was delivered by R.M. SAHAI, J.- Whether notification of a route under Section 68-C of the Motor Vehicles Act, 1939 (for short 'the Act') excluding completely or partially private operators from plying on the notified route results in excluding the operators of inter-State route as well is the question of law that arises for consideration in these appeals.

2. Although the controversy appears to have been settled long ago yet the circumstances in which the dispute has been continuing till now and has reached this Court may be narrated. The appellants are permit holders of stage carriages operating on inter-State route having starting point at one or the other place in State of Karnataka and terminating in the State of Tamil Nadu. Some of them are operating on the intrastate route since before the route was notified by what has come to be known as 'Anekal Pocket Scheme' of 1959. But their plying was not affected as the scheme was treated as of From the Judgment and Order- dated July 28, 1993 of the Karnataka High Court in W.P. No. 18948 of 1993 Computer Code No. '22313 of 1993 34 partial exclusion or not applicable to inter-State route by this Court. Now they are aggrieved by cancellation of their permits as it overlaps the route modified by publication of scheme in 1959 under Section 68-C of the Act. The validity of this scheme was upheld by this Court in H.C. Narayanappa v. State of Mysore'. But in view of the observations made to the following effect:

"But a scheme under Section 68-C must be one in relation to an area or any route or portion thereof wherein the transport service is to be undertaken by the State transport undertaking to the exclusion, either complete or partial, of other operators. Column 1 of the approved scheme undoubtedly describes the area in relation to which the scheme is approved, but by the designation of the area in the scheme, an intention to exclude either wholly or partially the operators of stage carriages from that area is not evinced either expressly or by implication." the Regional Transport Authority modified the inter-State permits and imposed a condition to the following effect:

"As the route for which the permit is held overlaps the route notified by the Government of Mysore in its Notification No. HD 39-EMB-59 dated April 15, 1959 no passenger from any point situated in the notified route other than those desirous of alighting or boarding at any point beyond Hoskote shall be carried in the vehicle or vehicles covered by such permits."

3. In 1963, it is claimed that the State Transport Authorities of Karnataka and Madras, having regard to the interest of the traveling public, after investigating the necessity for rant of permits, granted stage carriages through the Anekal Pocket Scheme with the same restrictions as were imposed earlier and are known as 'corridor restrictions'. The grant of permit was objected to by the Mysore State Road Transport Corporation insofar as it overlapped notified routes. The dispute ultimately reached this Court and question arose whether a permit could be granted to an inter-State transport operator for the whole of the route despite the fact that a part of the route overlapped a part of notified intrastate route. In Mysore State Road Transport Corpn. v. Mysore Revenue Appellate Tribunal 12 this Court did not enter into the question whether the State Transport Undertaking was empowered to prohibit the use of any portion of a route by inter-State operators as it was of opinion that even if it was shown that State Transport Undertaking could totally exclude inter-State operators from using any part of a notified route, it was a question of interpretation of the scheme framed under Section 68-C of the Act whether it intended to exclude private operators from operating on the route totally or partially. The Bench thereafter, on an examination of the scheme, came to the conclusion that it excluded only the operators named therein. The Bench held that the interState operators were not meant to be denied the use of the overlapping 1 (1960) 3 SCR 742 AIR 1960 SC 1073 2 (1975) 4 SCC 192 (1975) 1 SCR 493 35 portions of routes covered by the scheme as their names were not mentioned as required by the Rules. The Bench further observed that the scheme mentioned complete exclusion, but this exclusion was in respect of operators providing services between the terminating mentioned therein and not merely using overlapping portions of the notified routes incidentally. Soon after this judgment was rendered another appeal filed, by the Mysore State Road Transport Corporation in respect of intrastate route of a different scheme came up for consideration before a three-Judge Bench in Mysore State Road Transport Corpn. v. Mysore State Transport Appellate Tribunal3. Even though the nature of permits was different the Bench observed that there was, "no difference in the principle applicable to both the cases. The principle Governing intrastate routes has been extended to interstate routes vide S. Abdul Khader Saheb v. Mysore Revenue Appellate Tribunal, Bangalore 4. As the recent decision to which reference has been made seems to take a contrary view to that taken by even larger Benches of this Court, we find it necessary to reexamine the question posed before us." The majority in the Bench after examining the matter in detail held: (SCC p. 758, para 14) "With respect we do not doubt the correctness of the decision in Nilkanth Prasad case5 which followed the decisions of different Constitution Benches of this Court." The effect of this decision was that the decision rendered in Mysore State Road Transport Corpn. v. Mysore Revenue Appellate Tribunal2 was held not to be good law. Yet it appears the inter-State permit holders have been plying with corridor restriction and the objection raised by the Corporation was not accepted presumably because the latter case related to intrastate route. However, the dispute about inter-State route reached this Court again in Civil Appeal Nos. 1198-1282 of 1986. By that time the decision in Constitution Bench case in Adarsh Travels Bits Service v. State of U.P.6 had been rendered. The Bench, therefore, did not enter into merits and directed the State Transport Authority to decide it again in the light of Adarsh Travels case6. This time the objection was upheld by the State Transport Authority and the appeal and writ petition filed against the order canceling permits of the appellants also failed.

4. In Adarsh Travels case6 this Court held: (SCC pp. 566- 67, para 7) "A careful and diligent perusal of Section 68- C, Section 68-D(3) and Section 68-FF in the light of the definition of the expression 'route' in Section 2(28-A) appears to make it manifestly clear that once a scheme is published under Section 68-D in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other persons or otherwise, no person other than the State Transport Undertaking may operate on the notified area or notified route except as 3 (1974) 2 SCC 750 AIR 1974 SC 1940 4 (1973) 1 SCC 357 (1973) 2 SCR 925 : AIR 1973 SC 534 5 Nilkenth Prasad v. State of Bihar, 1962 Supp 1 SCR 728: AIR 1962 SC 1135 6 (1985) 4 SCC 557 36 provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself." The decision in Mysore State Road Transport Corpn. v. Mysore Revenue Appellate Tribunal 12 which was not approved in Mysore State Road Transport Corpn. v. Mysore State Transport Appellate Tribunal3 was specifically overruled. The distinction, therefore, of partial or complete exclusion from notified route became immaterial. Clause (3) of the approved scheme published in January 1959 reads as under:

"The route or routes (with their starting points, termini, intermediate stations and route length) in which the State Transport Undertaking will introduce its services to the exclusion of private operators." It is true that it does not mention private operators of inter-State route, but in view of the decisions in Adarsh Travels case 6 and Mysore State Road Transport Corpn. v. Mysore State Transport Appellate Tribunal3 it is not the implied but express authorisation in the scheme which could permit a private inter-State operator to ply on a notified intrastate route.

5. Mr Ashoke Sen, the learned senior counsel for the appellant, relied on observations in Adarsh Travels case6 and urged that whether a scheme was for total or partial exclusion depended on interpretation of the scheme itself.

According to him, a reading, of the scheme indicated that since operators of inter-State route are not excluded from the scheme, the view taken by the High Court or the Transport Authority cannot be upheld. The submission cannot be accepted in view of overruling of the earlier decision of this Court in Mysore State Road Transport Corpn. v. Mysore Revenue Appellate Tribunal 12 by the Constitution Bench.

Even though the Bench in Mysore State Road Transport Corpn. v. Mysore Revenue Appellate Tribunal 12 did not consider it necessary to decide if publication of scheme precludes an interState operator from plying on notified portion of intrastate route as the Bench was satisfied that the scheme did not exclude an inter-State operator from plying but in view of the decision in Adarsh Travels case6 and in absence of express authorisation in the scheme, the controversy 'is no more res integra.

6. In the result, these appeals fail and are dismissed.

We may, however, while dismissing these appeals, reiterate what was said in Adarsh Travels case 6 that it is for the State to take steps so as to avoid any inconvenience to the public either by framing, a proper legislation or by taking steps, as were pointed out in that decision.

37 STATE OF W.B. AND OTHERS V. PRASENJIT DUTTA ORDER 1. Leave granted.

2.This is an appeal by the State of West Bengal and its officers against the judgment and order dated November 18, 1992 passed by a Division Bench of the Calcutta High Court in FMAT No. 2977 of 1992 confirming the decision of the Single Judge passed in CR No. 7127(W) of 1984.

3. The respondent is a member of the Police Service of the State of West Bengal. He stood married to one Smt Bulu Dutta. While so, it is alleged, he married another woman by the name Tulu Dutta Paul during the subsistence of the first marriage. The departmental authorities of the Police Department taking aid of Rule 5(4) of the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980, initiated a departmental enquiry against the respondent. That sub-rule says that no government employee who has a wife/husband living shall contract another marriage without previously obtaining the dissolution of the first marriage in accordance with the law for the time being in force, notwithstanding such second marriage is permissible in the personal law of the community to which he or she belongs. The matter was examined factually by an enquiry officer appointed for the purpose and on his report that the respondent was guilty of the misconduct alleged, ail order of dismissal was passed by the disciplinary authority. But, before the order of dismissal could be served on the respondent he approached the High Court and had the operation of the dismissal order stayed from a learned Single Judge which order was upheld by the Division Bench and which has further led to this appeal.

4. The only ground which appealed to the High Court was that the question of second marriaGe was a serious matter which could not be left to be decided by the departmental authorities, in proceedings such as these, and a civil or matrimonial court needs to pronounce thereon properly and finally.

Arising out of SLP(C)No 8130 of 1993 39 LILY BEGUM V. JOY CHANDRA NAGBANSHI ORDER

1. We heard the learned counsel for the parties and also went through the judgments of the courts below and the record. We do not find that any error has been committed by the High Court in upholding the award of the Labour Court reinstating the workman. However, we find that the dismissal of the workman was on July 30, 1979 and till date more than 14 years have elapsed. It is now accepted that no party should suffer on account of the delay in the decision by the court. Taking all facts into consideration, we are of the view that it would meet the ends of justice in the present case, if instead of full back wages, the workman concerned is given 60 per cent of the back wages till he is reinstated.

2. We, therefore, modify the award of the Labour Court as follows. The appellant will reinstate the workman concerned on or before October 15, 1993. They will also pay him 60 per cent of all his back wages till the date of his reinstatement inclusive of the increments and the revisions in pay. The workman will also be entitled to all other benefits on the footing that he had continued in service since July 30, 1979. The appeal is disposed of accordingly with no order as to costs.

40 ORDER 1. Special leave granted.

2. Heard both the learned counsel and perused the records.

3. The respondent (accused) Joy Chandra Nagbanshi had filed a petition before the High Court for quashing the criminal proceedings initiated against him for offences punishable under Sections 376, 417 and 506 IPC. The High Court dismissed that petition but, however, it directed the trial court to dispense with the personal attendance of the respondent (accused) and to permit him to appear by his advocate. The relevant portion of the direction reads thus:

"Mr Roy, however states that the petitioner is a social worker and he is known to people of the village. He therefore prayed that he be allowed to be represented by his advocate on subsequent dates. I accept this prayer and direct the trial court to allow representation by his advocate he is known to the people and no identification is required."

4. In our opinion, the reason given by the High Court to dispense with the personal attendance of the respondent (accused) by invoking the powers under Section 205 of the Code of Criminal Procedure is untenable especially in a case of this nature, wherein serious allegations are made against the respondent (accused). If such a privilege, in our opinion, is given to an accused in a case of this nature, people will lose their confidence in the administration of justice. Hence we set aside that direction and direct the respondent to appear before the trial court on all hearings.

In case, there is any extreme and exceptional circumstance brought to the satisfaction of the court that the accused is unable to appear before the court, the court may consider the request, if any, made by the respondent for dispensation of his personal attendance on any particular hearing, and pass appropriate orders. However, we make it clear that the respondent should make his appearance before the trial court on all the hearings when the material witnesses are examined. The appeal is allowed accordingly.

41 SATYARANI CHADDHA (MRS) AND OTHERS V. STATE (DELHI ADMN.) AND ANOTHER ORDER 1. This is an appeal by way of Public Interest Litigation.

The second respondent, Subhash Chander Bhasin, was sought to be prosecuted under the provisions of Dowry Prohibition Act, 1961. The learned Judicial Magistrate having examined the complaint discharged the accused on the ground that the demand of the scooter made on March 15, 1979 is not dowry within the meaning of Section 2 of the Dowr Prohibition Act.

A revision was filed against the same in the High Court and the same was dismissed. Hence the present appeal.

2. Having regard to the public importance of the question, not only the interested party but two others belonging to the social organisation have filed this appeal.

3. It appears that two days before the marriage, a demand was made for a fridge, television and a scooter. Except scooter, other articles are appeared to have been given.

The demand for the scooter continued subsequent to the marriage. The definition of dowry as it stood prior to amendment explains the meaning of dowry thus:

"Dowry means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or after the marriage as consideration for the marriage of the said parties......

The learned Magistrate having examined the allegations in the complaint took the view that it could not be inferred from the demand that it was in continuation of the first demand. The trial court also observed that it was nowhere stated in the complaint nor mentioned that the accused, since he was not given scooter at the time of his marriage, demanded that it should be given now as consideration for the marriage within the meaning of 'Dowry'. We do not think that the view taken by the learned Magistrate is erroneous under the circumstances, the appeal is accordingly dismissed.

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