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Samarth Transport Co. Private Ltd. Vs. Y.B. Chavan and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 198 of 1960
Judge
Reported inAIR1961Bom80; (1960)62BOMLR952; ILR1960Bom978
ActsConstitution of India - Articles 19(1), 19(6), 166, 166(2) and 166(3); Motor Vehicles Act, 1939 - Sections 68A(6), 68C, 68D, 68D(1), 68D(2) and 68(I); Bombay Motor Vehicles Rules - Rules 10, 68(I), 142 and 142(2); Code of Civil Procedure (CPC), 1908 - Order 27-A
AppellantSamarth Transport Co. Private Ltd.
RespondentY.B. Chavan and ors.
Appellant AdvocateS.A. Hegde, Adv.
Respondent AdvocateAdv. General, ;i/b., Little and Co., Attorneys
Excerpt:
.....date before the chief minister either in person or through their duly authorised representatives and submit any point which they would like to urge personally in the matter. section 68-d provides for objections to be filed against the scheme so proposed by any person who is affected by the scheme to the state government and requires the state government after receiving objections and representations and after giving a personal hearing to the objectors as well as to the undertaking, to approve or modify the scheme as the case may be. he is, however, not like the secretary of the department the head of the depart--ment......the 30th of april 1960. 2. on the 29th of october 1959, a scheme of road transport services of a state transport undertaking in the district of yeotmal was submitted by the provincial transport services under government ownership, nagpur to the government of bombay under the provisions of chapter iv-a of the motor vehicles act, and the said scheme was published according to the bombay motor vehicles rules, 1959, in the bombay government gazette, dated 29th october 1959 at pages 1006 to 1008. this scheme has been signed by the 3rd respondent. after the publication of this scheme; the petitioners and other operators who have been operating bus services on routes within this area and about 6000 other persons have lodged their objections before the government of bombay as provided under.....
Judgment:

V.S. Desai, J.

1. The petitioners are a private limited company carrying on the business of operating bus service in the Nagpur region. They have been in this business for about last 20 years and have been plying their stage carriages on the routes Yeotmal-Umarkhed and Yeotmal to Pusad. The permits held by the petitioner for these routes were due to expire on the 31st of December 1959. The petitioners, therefore, made applications for the renewal of their permits to the Regional Transport Authority, Nagpur on the 24th of August, 1959. These applications for renewal made by the petitioners have not yet been disposed of and are pending before the authority. The permits of which renewal has been sought by the petitioners having expired on the 31st of December 1959, for the month of January 1959, they were issued a temporary permit and again for the month of February a temporary permit lias been issued to them which they have accepted tinder protest. We are also told that a further temporary permit has been issued to them effective till the 30th of April 1960.

2. On the 29th of October 1959, a scheme of Road Transport Services of a State Transport Undertaking in the District of Yeotmal was submitted by the Provincial Transport Services under Government ownership, Nagpur to the Government of Bombay under the provisions of Chapter IV-A of the Motor Vehicles Act, and the said Scheme was published according to the Bombay Motor Vehicles Rules, 1959, in the Bombay Government Gazette, dated 29th October 1959 at pages 1006 to 1008. This Scheme has been signed by the 3rd Respondent. After the publication of this Scheme; the petitioners and other operators who have been operating bus services on routes within this area and about 6000 other persons have lodged their objections before the Government of Bombay as provided under section 68-D(1) of the Motor Vehicles Act. By notices which the Government have issued under Rule 142 of the Bombay Motor Vehicles Rules to the objecting operators individually on the 22nd of January 1960, the Government have informed the petitioners and other objectors that the Scheme of Road Transport Services in the Yeotmal District submitted by the Provincial Transport Services under Government ownership, Nagpur, to the Government of Bombay and published in tho Bombay Government Gazette, dated the 29-10-59, and the objections filed against the said Schema by the objectors will be considered at a hearing before the Chief Minister, Bombay State, on the 8-2-1960 at 3-30 p. m. in the Chief Minister's Chamber on the 6th Floor of Sachivalaya, Foreshore Road, Bombay. By these notices the petitioners and the other objectors have been further informed that they may appear on the said date before the Chief Minister either in person or through their duly authorised representatives and submit any point which they would like to urge personally in the matter. The Government have given a public notice to the same effect to ;tll the neither objectors And this public notice is published in the news-paper Hitavada which has a wide circulation in the Yeotmal District. The petitioners have thereafter filed the present Special Civil Application praying for Writs and order under Articles. 226 and 227 of the Constitution of India against the 1st Respondent prohibiting him from proceeding with the hearing relating to the Scheme of Road Transport Service in the Yeotmal District submitted by the 2nd and 3rd Respondents and from taking any steps, proceedings or actions in pursuance of the said Scheme or hearing the objections filed against the said Scheme and also directing him not to proceed with the hearing of the Scheme of Road Transport Services and the objections thereto.

3. Now, the grounds on which the reliefs prayed for in the petition are claimed by the petitioners arc: Firstly that the provisions of Chapter IV-A of the Motor Vehicles Act are ultra vires Article 19(1)(g) of the Constitution; secondly even if the provisions of the said Chapter IV-A may not be ultra vires Article 19(1)(g) of the Constitution of India, they are still invalid as being repugnant to principles of natural justice and thirdly that even though the provisions of Chapter IV-A may not bo repugnant to the principles of natural justice, there has been dereliction of the principles of natural justice in the present case in implementing the said provisions and in proceeding under them. It is lastly argued that even though the provisions of Chapter IV-A of the Act are constitutionally valid the petitioners can be deprived of their rights only in accordance with the law enacted for that purpose and in the manner as provided therein, but in the present case, the steps taken by the Government and the procedure followed by it are not in conformity with the provisions as contained in Chapter IV-A of the Motor Vehicles Act, and the petitioners therefore arc entitled to the relief-as prayed for by them. We will now proceed to consider the validity of each of the four grounds which hive been urged before us.

4. With regard to the first point viz., that the provisions of Chapter IV-A of the Motor Vehicles Act, are ultra vires Article 19(1)(g) of the Constitution of India, the argument of Mr, Ilegde is that these provisions enable the State Government to initiate a Scheme of Road Transport Service and also decide objections against the said Scheme. The provisions, therefore, enable the State Government to deprive the petitioners and other operators of their right to carry on the business of Operating buses or at any rate impose unreasonable restrictions on the said fundamental right of the petitioners to carry on their trade and business, and therefore arc in violation of Article 19(1)(g) The short answer to this argument is provided by the provisions of Sub-clause (6) of Article 19 which lays down that nothing in section 19(1)(g) shall prevent the State from making any law relating to the carrying on by the State or by a Corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial, of citizens or otherwise. The provisions of Chapter IV-A of the Motor Vehicles Act undoubtedly come within the purview of this exception laid down in Sub-clause (6) of Article 19 and, therefore, the challenge to these provisions of law. on the ground that they affect the fundamental rights of the petitioners under Article 19(1)(g) cannot he sustained. Tho first ground, therefore, which has been urged by Mr. Hegde, fails.

5. Coming now to the second ground viz. that even though the provisions of Chapter IV-A may not be ultra vires Article 19(1)(g) of the Constitution, they can. still be challenged as being opposed to the principles of natural justice, it has been urged by Mr. Hegde that the law made by the Parliament or a State Legislature must stand the test of fundamental rights declared in Part III of the Constitution, and, therefore, if a law which has been made by the Parliament or a State Legislature is repugnant to the principles of natural justice, it will be a law which is invalid. Mr. Hegde's argument in support of this point is that under the provisions of Chapter IV-A of the Motor Vehicles Act, the Government is authorised to institute a Scheme and thereafter constitute itself a Judge in its own cause. This argues Mr. Hegde, is against the principles of natural justice because those principles require that no man shall be a Judge of his own cause and justice should not only be done but it must manifestly and undoubtedly seem to be done. The point, however, which Mr. Hegde has urged is concluded by the decision of the Supreme Court in the case of Nageshwararao v. State of Andhra Pra-desh, : [1960]1SCR580 in which after having considered the provisions of Chapter IV-A of the Motor Vehicles Act, their Lordships of the Supreme Court have come to the conclusion that the provisions of Chapter IV-A of the Motor Vehicles Act do not sanction any declaration of the principles of natural justice. Their Lordships have pointed out that the State Transport Undertaking is not the State Government but a statutory Authority created under the Act and invested with the certain statutory functions. One of such functions is the preparation and publication of a scheme of Road Transport Service of a State Transport Undertaking, as provided in section 68-C of the Act. Section 68-D provides for objections to be filed against the scheme so proposed by any person who is affected by the Scheme to the State Government and requires the State Government after receiving objections and representations and after giving a personal hearing to the objectors as well as to the Undertaking, to approve or modify the scheme as the case may be. In view of these provisions, their Lordships of the Supreme Court took the view that the provisions of the Act did not authorise the Government to initiate the scheme and thereafter constitute itself a judge in its own cause. Their Lordships observed that the entire scheme of the Act visualised, in case of conflict between the Undertaking and the operators of private buses, that the State Government should sit in judgment and resolve the conflict. It was therefore held that the Act did not authorise the State Government to Act in derogation of the principles of natural justice. In this view, which has been taken by the Supreme Court, the second contention which has been raised by Mr. Hegde also fails.

6. Coming then to the next contention that at any rate in the present case in the steps taken for implementing the provisions of Chapter IV-A of the Act, there has been a violation of the principles of natural justice, it is argued by Mr. Hegde that the Provincial Transport Services under Government ownership, Nagpur, which has proposed tho scheme is controlled by the Department for Transport of the State Government and the port-folio of this department is with the respondent NO. 1 tho Chief Minister. Respondent No. 1 therefore is the head of the Provincial Transport Services and hence the scheme which is proposed in the present case is a scheme which is proposed by the Chief Minister or one which at any rate he has examined before its publication. Under the notification which has been issued by the Government, it is the Chief Minister who has to hear and decide the objections to the scheme. It is, therefore, argued that the Chief Minister is hearing and deciding objections to a scheme which has been proposed by him as the head of the State Transport Undertaking. Now, in the affidavit in reply which has been filed by the 3rd Respondent, who is the General Manager oi the Provincial Transport Services, he has stated on oath that the Provincial Transport Service is managed by a Board of Management consisting of both official and non-official members, that he is the General Manager of the Provincial Transport Service and is authorised and empowered to carry out the various functions and duties of the Provincial Transport Service. He has denied that the Government of Bombay themselves are the State Transport Undertaking in this case as alleged by the petitioners. Now, as we have already seen in dealing with the second contention raised by Mr. Hegde that the State Transport Undertaking under section 68-A(6) is a statutory authority created under the Motor Vehicles Act. In the present case tin's statutory authority has its board of management consisting of both official and non-official members and it has also a general manager authorised and empowered to carry out its functions and duties. The Undertaking admittedly belongs to the Government and the activity of the Government in carrying on this undertaking is under the administration of the Department for Transport. The port-folio of the Transport Department may also be with the 1st Respondent, wbo is the Chief Minister. But that will not constitute the Chief Minister the head of the State Transport Undertaking nor for that reason can he be regarded as the person who has proposed the Scheme of Road Transport Service in the present case. As has been pointed out in the case before the Supreme Court to which we have already referred, the position of the Minister who is in charge of the port-folio belonging to a particular Department is not that of the head of the Department. In that case, their Lordships of the Supreme Court were considering the position of the Ministers of the State of Madras with reference to the Rules made by the Governor of Madras under clauses 2 and 3 of Article 166 of the Constitution of India. There is, however, no difference at all between those Rules and the Rules which have been made by the Governor of Bombay for the State of Bombay. Rule 9 of the Madras Rules to winch their Lordships of the Supreme Court have made reference is identical in terms with Rule 10 of the Bombay Rules. As has been pointed out in that case a Minister in charge of a department is primarily responsible for the disposal of the business pertaining to that Department, but the ultimate responsibility for the advice is on the entire ministry. He is, however, not like the Secretary of the Department the head of the Depart--| ment. The Secretary of the Department, who is the head of the Department, belongs to the Department, but a Minister in charge of the Department is only primarily responsible for the disposal of the business pertaining to that Department. It was held in that case that the Chief Minister was not part of the Department constituted as a statutory Undertaking under the Act. It is clear from this decision that the respondent No. 1 is not the head of the Transport Department of the State of Bombay nor the head of the statutory authority namely the Provincial Transport Service under Government ownership, Nagpur, which is under the control of the Transport Department. The scheme, therefore, which has been published by the Provincial Transport Services in the present case cannot be taken to be a scheme which is proposed by the Respondent No. 1. The argument, therefore, of Mr. Hegde, that the Chief Minister in proceeding to hear the objections against the scheme and in deciding them will be hearing objections to the scheme which he has proposed is not sustainable.

7. Coming now to the last argument which has been advanced by Mr. Hegde viz., that he can be deprived of his right only as provided by the law laid down under the provisions in Chapter IV-A of the Motor Vehicles Act, and that the steps taken and the procedure adopted in the present case are not in conformity with the provisions contained in Chapter IV-A of the Act, Mr. Hegde's argument in this connection is directed against the public notice which the Government have issued under Rule 142 of the Rules framed under the Motor Vehicles Act. Before we consider the Rule, it will be desirable to refer to the provisions of section 68-D of the Act. Under Sub-section (1) of Section 68-D any person affected by the scheme published under Section 68-C is given a right within thirty days from the date of the publication of the scheme in the Official Gazette to file his objections thereto before the State Government. Sub-section (2) has then provided that 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. Section 68-I empowers the State Government to make Rules for the purpose of carrying into effect the provisions of Chap. IV-A of the Act and in particular for matters specified in Sub-section (2) of that section amongst which are the following:--

* * * (c) the manner in which objections may be considered and disposed of under Sub-section (2) of Section 68-D;

* * * (e) any other matter which has to be, or may be, prescribed. Rule 142 of the Rules made under Section 68-I has provided that the State Government may consider the proposed scheme and the objections at the hearing of which at least seven days' notice shall be given to every objector and the State Transport Undertaking and by a recent amendment made in this Rule on the 28th of October 1959 it has been further provided by adding Sub-rule (2) to the said Rule that the notice under Sub-rule (1) shall ordinarily be sent at the address of the objector by ordinary post under certificate of posting. Provided that where the number of objectors is considerable er the addresses of objectors are illegible the State Government may instead of giving individual notice to every objector, give notice by publication in a local newspaper having wide circulation in the area in which the objectors reside. It is not disputed in the present case that every operator in this are who is likely to be affected by the scheme proposed has been served with an individual notice. As regards the other 6000 objectors who ate members of the travelling public interested in objecting te the scheme, a public notice has been issued in the local newspaper having wide circulation in the area in which the objector reside under Sub-rule (2) of Rule 142. Now, Mr. Hegde's grievance js that section 68-D (2) contemplates that every objector must be given an opportunity of being heard. A notice of the date and time of hearing and the place where the hearing will take place must, therefore, be given individually to every objector in order that the opportunity which the provision of law has contemplated should be real and effective. Mr. Hegde, therefore, complains that publishing a notice in a local newspaper will not be a proper compliance with the provisions of section 68-D (2) even on the ground that the number of objectors is considerable. Mr. Hegde complains that on the Rule as it stands after its recent amendment the Government may be able to satisfy the requirement of the rule by giving a public notice not only to the general objectors or members of travelling public objecting to the scheme but also to the operators when the number of operators is large. It cannot be denied, says Mr. Hegde that the operators are vitally concerned in the matter since the approval of the scheme has the effect of crippling their business and depriving them of their trade. The law has provided that they will be given an opportunity of being heard before the scheme is approved. Such an opportunity must also be given to them on the principle of natural justice. They cannot have this opportunity unless the day on which and the time and place at which the scheme will be considered and the objections against the scheme will be heard are properly notified to them. It is implicit in the provisions of section 68-D (2) and also imperative oh tlie principle of natural justice that an individual notice must be given to every person who has objected to the scheme and Rule 142 which enables the Government to dispense with the individual notice is therefore ultra vires the Motor Vehicles Act and is invalid as being opposed to principles of natural justice. It does seem to us that Sub-rule (2) which has been added by the amendment of the 28th of October 1959 is so worded as to permit an objection being raised against it that it is not in conformity with the pro-! visions of section 68-D(2). It is however, not necessary for us to deal with the grievance which Mr. Hegde has made on the language of this Rule in any detail in the present case because in the first place, the said grievance has now become academic. The notice in respect of which the complaint is raised by Mr. Hegde related to the date of hearing which was fixed on the 8th of February 1980. That date has already passed without any hearing having taken place on that day. It will be necessary, therefore, for the Government to fix another elate for the hearing of the scheme and deciding the objections and the notice of such fresh date time and place which the Government may fix will be required to be given to all the objectors who have filed their objections. It may, be that at the time when the fresh notice is given by the Government, it may take care to see that the notice given is such as in conformity with the provisions of law and. consistent with the principles oi natural justice. Since at any rale, so far as the present application in concerned the grievance no longer survives, it in not necessary for us to deal with it any further. Secondly, the learned Advocate-General has stated Before us that in any event until the Government lias considered the necessity of amending the existing rule or have other rules framed so as to meet with the provisions of section 68-D (2) the Government in the present case at any rate at the time of giving the fresh notice will see that individual notices are sent to all the objectors whose objections have been received by the Government. In view of this statement made by the learned Advocate-General the petitioner can have no grievance that opportunity as is counterpleaded under Section 68-D (2) will not be given to the objectors in the present case.

8. In this Special Civil Application, Mr. Hegde had challenged the vires of Chapter IV-A of the Motor Vehicles Act. The Motor Vehicles Act being a Central Act, it would have been necessary for us to have a notice issued to the Attorney-General of India under Order 27-A of the Code of Civil Procedure. Since, however, in our view, the challenge raised against the constitutionality of the provisions of Chapter IV-A is not sustain able, we have not found it necessary to issue notice to the Attorney-General and to hear him in the case.

9. In. the view that wo have taken of the several contentions which have been raised before us By Mr. Hegde, the Special Civil Application fails and the Rule is discharged with costs.

10. Rule discharged.


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