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K.S. Achuthan and ors. Vs. State of Mysore Represented by Its Chief Secretary, Vidhan Soudha Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberWrit Petns. Nos. 1562, 1890, 1891, 1958, 1959, 1882, 1892, 1954, 1955 and 2053 of 1968
Judge
Reported inILR1968KAR965
ActsRoad Transport Corporation Act, 1950; Motor Vehicles Act, 1939 - Sections 43(1), 68-C and 68-D
AppellantK.S. Achuthan and ors.
RespondentState of Mysore Represented by Its Chief Secretary, Vidhan Soudha Bangalore and ors.
Excerpt:
.....corporation on certain routes in districts of coorg, south kanara and chikmagalur - mere fact that chief minister or state government had determined to implement policy of nationalization in sphere of transport services does not amount to any bias on part of government or on part of chief minister who may accord approval to scheme under section 68-d - nothing to show that scheme published on 18.08.1964 would not result in efficient, adequate, economical and properly co ordinated transport services - petition dismissed. held see paras 20, 23 and 26. - [s. abdul nazeer, j.] code of civil procedure, 1908 — order 23 rule 3-b -representative suit — compromise of — leave of the court - the suit in question is a representative suit which comes within the explanation(d) of..........will be referred to as the mangalore scheme in the course of this judgment, was approved by the chief minister under section 68-d of the act on july 28, 1967. the approved scheme is impeached in these ten writ petitions on more than one ground by persons who were operating on some one or the other of the notified routes enumerated in the approved scheme.2. on behalf of the petitioners six submissions were made. the first was that there was no application of the judicious mind by the chief minister to the question whether the scheme was in public interest and also to the question whether it results in an efficient, adequate economical and properly co ordinated transport services. the second was that the complete exclusion of private operators from some of the notified routes was not in.....
Judgment:

Somnath Iyer, J.

1. The Mysore State Road Transport Corporation constituted under the provisions of the Road Transport Corporation Act, 1950, published on August 18, 1964, a draft scheme under Section 68-C of the Motor Vehicles Act, 1939 for the operation of its services on certain routes in the Districts of Coorg, South Kanara and Chikmagalur. This scheme which will be referred to as the Mangalore Scheme in the course of this judgment, was approved by the Chief Minister under Section 68-D of the Act on July 28, 1967. The approved scheme is impeached in these ten writ petitions on more than one ground by persons who were operating on some one or the other of the notified routes enumerated in the approved scheme.

2. On behalf of the petitioners six submissions were made. The first was that there was no application of the judicious mind by the Chief Minister to the question whether the scheme was in public interest and also to the question whether it results in an efficient, adequate economical and properly co ordinated transport services. The second was that the complete exclusion of private operators from some of the notified routes was not in public interest. The third submission was that the approved scheme stands vitiated by reason of the fact that the Chief Minister who accorded his approval to it was determined to implement the policy of nationalisation and was so biased. The fourth submission was that there was long delay in according approval to the scheme and that the approval accorded in the year 1967 on the basis of the situation which obtained in 1964 vitiated the scheme. The fifth and sixth submissions covered the question whether the provisions of Sections 68-C and 68-H invaded the fundamental right guaranteed by Articles 19 and 31 of the Constitution; but at one stage these two submissions were withdrawn.

3. The first question to which we should address ourselves is whether there was no application of the mind of the Chief Minister when he gave his approval to the scheme under Section 68-D to the question whether the approved scheme would make available to the general public and efficient, adequate, economical and properly co ordinated road transport service on the notified routes and whether for that reason that scheme was in public interest. In support of the argument that that fact of the matter did not receive adequate consideration from the Chief Minister, it was said that it was overlooked by the Chief Minister that the proposed scheme disclosed prima facie that it would neither work efficiently nor economically and that the proposed transport operation by the Corporation was neither adequate nor properly co ordinated. It was said that no scheme could have been approved by the Chief Minister under Section 68-D unless the scheme which was initiated by the Corporation demonstrated the possibility of an adequate, efficient, economical and properly co ordinated transport service and that it should have been obvious to the Chief Minister that there was no such possibility.

4. It is now a well-settled proposition as can be seen from the pronouncement of the Supreme Court in H. C. Narayanappa v. State of Mysore, : [1960]3SCR742 that the adjudication made by Government under Section 68-D is subject to judicial review only in a very limited way. It was explained in that decision by the Supreme Court that if an opportunity to make a representation and to be heard in support of the objections preferred to a draft scheme is made available and there is a judicial approach in the disposal of the objections, the mere fact that another view than the one taken by them is possible or that the order prepared by Government under Section 68-D does not set out detailed reasons does not afford any ground for the denunciation of the scheme.

5. We find from the order made by the Chief Minister on July 28, 1967 that there was sufficient application of his mind to the questions which he had to consider. Indeed the Chief Minister set before himself all those questions and also formulated the grounds on which the draft scheme was assailed before him. He considered those objections, and, in the context of the materials produced by both sides reached a clear conclusion that the scheme was such as to merit his approval. The question whether the proposed scheme would work efficiently and whether the services proposed were adequate and economical and in addition properly co ordinated was considered by him in sufficient detail. He came to the conclusion that all the four elements which the scheme should fulfill did exist, and that the proposed scheme with the modifications which he made would be in public interest.

6. It is not disputed before us that the opportunity which is claimable under Section 68-C to produce objections and to be heard was in fact made available to the petitioners although, at some stage of the argument it was pressed on us that in some spheres that opportunity became unavailable. To that aspect of the matter, we shall advert at the appropriate stage. It was not disputed also by the learned Advocates appearing in these ten petitions that if all that it was possible for the Chief Minister to take a view different from that reached by him, that would not by itself entitle the petitioners to call in question the approval accorded by the Chief Minister. But, it was pressed on us by Mr. Gopalakrishna Shetty who led the argument that this is not a case in which it can merely be said that two views were possible but that the conclusion reached by the Chief Minister was an impossible conclusion. So, he asked us to say that since it was impossible for the Chief Minister to grant his approval to the scheme, the approved scheme falls to the ground.

7. In support of this argument, Mr. Shetty first asked attention to certain features of the scheme which displayed according to him, the non-existence of any of the four factors of which Section 68-C speaks. What is so portrayed by the approved scheme was, according to Mr. Shetty, that the approved scheme is neither efficient nor economical nor adequate and not at all a properly co ordinated scheme. Although some of the submissions made by Mr. Shetty overlap the other submissions made by him in the sense that an argument in support of inadequacy was also an argument advanced in support of inefficiency, we shall deal with the postulates made by Mr. Shetty in the order in which he placed them before us.

8. In support of the Chief criticism made of the conclusion reached by the Chief Minister that the approved scheme would produce a properly co ordinated transport service, it was pointed out to us that on more than one notified routes there would be a transaction of the operation of private operations with respect to the portions which overlap the notified route. By way of an illustration, Mr. Shetty pointed out that in respect of the road between Mudabidri and Killur via Guruvayankere and Belthangadi on which the petitioner in Writ Petition No. 1562/68 operates, that operation has become no longer possible by reason of the fact that on the route between Mangalore and Charmady which is notified, all operators are completely excluded. The complaint before was that the distance between Guruvayankere and Belthangadi is only two miles and that a passenger who performs a journey from Killur to Belthangadi had to alight from the private operator's stage carriage and board a corporation omnibus at Belthangadi and perform a short journey of 2 miles to Guruvayankere in order to board another private omnibus to reach Mudabidri. This privation which is the inevitable result of the exclusive operation by the Corporation on the notified route between Charmady and Mangalore is, according to Mr. Shetty, the most irrefutable proof of incoordination. It was said that similar consequences would ensue from the exclusive operation by the Corporation on quite a few other routes and that the incoordination displayed by such operation under the scheme was entirely missed by Chief Minister when he gave his approval to the scheme.

9. In C.P.C. Motor Service Mysore v. State of Mysore, : AIR1966SC1661 it was explained by the Supreme Court that the element of co-ordination would exist notwithstanding the fact that a passenger who has to perform a journey on a route other than the notified route, has on the overlapping portion of the notified route, to perform a journey in a Corporation omnibus. The enunciation made by the Supreme Court was that Section 68-C, when it speaks of a properly co ordinated service does not insist upon a scheme which enables such passengers to perform continuous journeys in the stage carriages operated by private operators. In that context, the Supreme Court said this:

'Under Section 68-C the State Transport Undertaking may take over whole routes or whole areas or part of the routes or part of the areas, and if the scheme operates partially, some transshipment would obviously be necessary, but coordination would still exist because where the State omnibuses come to a halt, the private omnibuses would take the passengers set down. In our opinion, these grounds have no validity, in view of the partial nationalisation of the routes involved in the State.'

It is this very passage in the decision of the Supreme Court that was relied upon by the Chief Minister when he negatived the argument of incoordination and so, the petitioners cannot reasonably contend that there was no application of the mind of the Chief Minister to that feature of the approved scheme on which they depended.

10. That being so, it is not necessary for us to consider the effect of the issue of the permit to the petitioner in Writ Petition No. 1562/68 for the route between Killur and Mudabidri after the Chief Minister accorded his approval to the Scheme. Nor is it necessary for us to consider the submission made on behalf of the Corporation by Mr. Special Government Pleader that on that route the Corporation itself is also operating a direct service which precludes an argument based on the necessity for transshipment.

11. It was next maintained that the approved scheme could not work economically and that the conclusion reached by the Chief Minister that it could, was entirely unsupportable if not impossible. The only argument advanced in support of this submission was that what influenced the Chief Minister was the impact of the scheme on the traveling public and the Chief Minister did not take into consideration the fact that the higher rates which the Corporation was charging was detrimental to public interest. It is explained to us that whereas the private operators charge the passengers a fare calculated at a rate varying between 4 and 5 paise a mile, the rates fixed by the Corporation varied between 6.25 paise and 7 paise a mile.

12. It is not correct for the petitioners to contend that that aspect of the matter was not considered by the Chief Minister. Moreover, the approved scheme did not fix the rates which could be charged by the Corporation. That scheme only stated that the rates would be fixed under Section 43(1)(i) of the Motor Vehicles Act.

13. Paragraph 5 of the order did make a reference to that contention although there was no detailed discussion thereof. It is however obvious that the Chief Minister was not impressed by the criticism that the scheme should not be approved merely for the reason that the Corporation rates are higher than those of the private operators. That was a sphere in which the Chief Minister had to reach his own conclusion so long as that conclusion was not reached on the basis of an approach which was not judicial. If the criticism was considered in the light of the purpose to be accomplished by the scheme and was turned down, the fact that some one else would have found it possible to reach a different conclusion is surely not a ground which can support the impeachment of the approved scheme.

14. The question whether a transport service is economical from the point of view of the passengers who travel in it can be looked at from two points of view and the fare charged by the operator is not a decisive factor. A transport service which charges a higher fare but affords a better service and enables the passenger to reach his destination safely and without delay may, in the circumstances be more economical from the point of view of the passenger traveling in it than a transport service which charges a lower rate but is undependable or is not sufficiently comfortable. Although the Chief Minister does not say so in so many words, it is obvious that he did bestow his thought to the argument whether he could refuse approval to the proposed scheme on the ground that the Corporation rates were higher and that he reached the conclusion that he should not. In that situation, there can be no force in the argument advanced before us.

15. That the Chief Minister did not bestow reflection over the question whether the Corporation would operate its services with efficiency was the next submission. In support of this argument, our attention was invited to the way in which the Corporation operated its transport service in another area in which an approved scheme was in force. That scheme to which we shall refer as the Hassan Scheme specified that the Corporation would operate a minimum number of 174 motor vehicles. It was alleged that although the Corporation did commence with the operation of 230 vehicles on the notified routes in that area, that number was reduced to a hundred and that such diminution more than abundantly established lack of efficiency on the part of the Corporation. It is true that in the petitioner's affidavit and in the statement of objections produced by some of the petitioners there is an allusion to the diminution in the number of stage carriages which the Corporation operated under the Hassan scheme, and it is also true that the Chief Minister does not refer to that feature of the Corporation's performance under the Hassan Scheme. But it is clear that the Chief Minister did not think much of the criticism leveled against the Corporation. Moreover, it is difficult to understand how the petitioners could contend that what the Corporation did under the approved scheme could have any materiality in judging the question whether the Mangalore scheme would be an efficient scheme with respect to the notified routes to which it refers.

16. This is also what were would say with respect to the submission made to us by Messrs. Narayana Rao and Puttaswamy who participated in the argument as interveners, that the Corporation was keeping a large number of motor vehicles without putting them on the road. It was alleged that whereas the Corporation owned 1988 vehicles, only 1352 vehicles have been put on the road and 636 are remaining idle. These statistics have been made available to us for the first time by Mr. Shetty appearing for the petitioner and by the Advocates appearing for the interveners and the Chief Minister did not have those materials before him. It is clear from his order that in respect of operational details and in respect of the claim made by the Corporation that it could manage its services with the required efficiency, the Corporation produced relevant statistics whereas those who made representations against the scheme did not. With respect to that matter, the Chief Minister observed:

'Regarding the general question of efficiency, while the objectors contended that the Corporation was being managed inefficiently at present, the representative of the Corporation submitted citing statistics that from the point of view of operational efficiency which is judged on the basis of operating ratio, the Corporation is being efficiently managed. On the other hand the objectors apart from making a bald statement that the scheme did not provide for an efficient system of Road Transport Service, have not been able to place operational statistics pertaining to their operations, nor did they challenge the statistics quoted by the Corporation.'

This part of the Chief Minister's order is, in our opinion, a sufficient answer to the criticism that the question whether the Corporation would or would not be able to operate its services with the required efficiency was not considered by the Chief Minister or that even if he had considered it, the conclusion reached by him was an impossible conclusion.

17. What we have said so far in the context of the argument concerning the question of efficient operation also disposes of the submissions made to us on the adequacy of the arrangements made by it for exclusive operation on the notified routes.

18. So, we proceed to consider the next submission made that the approval accorded under Section 68-D rested on a wrong basis. It was stated that since the draft scheme was prepared in the year 1964 and was not approved until the year 1967 and in the meanwhile there had been an increase in the volume of traffic by as much as 35 per cent so the proposals contained in the draft scheme could have no validity in the situation obtaining in the year 1967, it was not possible for the Chief Minister to say in the year 1967 that a scheme prepared in 1964 was acceptable. But, this argument overlooked the fact that when the Chief Minister accorded his approval, he heard all the persons who made representations and invited them to produce statistics in the same way in which the Corporation was also invited, but those who objected to the draft scheme did not produce any such statistics as stated by the Chief Minister and did not contest the truth of the statistics produced by the Corporation. The Chief Minister had the power when he gave his approval under Section 68-D to make possible for the petitioners who objected to the draft scheme to seek such modifications as had become necessary by reason of subsequent events. This they could have done by the production of statistics upon which they now depend in support of their argument, but, they did not, and it is therefore now too late for them to make any criticism of the approved scheme on a ground which they did not urge before the Chief Minister.

19. The impeachment of the scheme on the ground of bias is contained in paragraph 12 of the affidavit of the petitioner in writ petition No. 1562/68 and that was the basis on which the argument was advanced even in the other cases. That paragraph did not in so many words impute any particular bias to the Chief Minister. What is stated in that paragraph is:

'I submit that it is evident from the order of the Chief Minister that it is pursuant to a general predetermined policy of nationalisation that the scheme has been approved and influenced the decision of the Chief Minister, rather than the merits of the proposed scheme as one satisfying the condition required under Section 68-C of the M. V. Act.'

This part of the affidavit makes it clear that according to the petitioners the bias on which they depend is displayed by the order which according to them demonstrates a general predetermined policy of nationalisation. It was submitted by Mr. Shetty that notwithstanding an allegation of bias which the petitioner made in his affidavit, no affidavit was produced before the Chief Minister in repudiation of the truth of that allegation. But, it is obvious that the allegations made in paragraph 12 of the petitioner's affidavit did not call for any such repudiation in that form. The petitioners depended upon an order made by the Chief Minister as the basis of the allegation of bias. No other allegation was made except that his order demonstrates that the Chief Minister was guided more by the 'general predetermined policy of nationalisation' than by the merits of the case.

20. The mere fact that the State Government or the Chief Minister had determined to implement the policy of nationalisation in the sphere of transport services does not amount to any bias on the part of Government or on the part of the Chief Minister who may accord approval to the scheme under S. 68-D. That there is a desire or duty on the part of Government to implement the policy of nationalisation does not mean that they would accord approval under Section 68-D, whatever may the nature of the draft scheme prepared under Section 68-C. If the policy of Government is that there should be nationalisation, there can be no approved scheme in pursuance of such policy of nationalisation unless the scheme proposed under Section 68-C measures up to the standards prescribed by it; what is plain is that Government would accord their approval to the scheme only when they are satisfied that the scheme would result in an efficient, adequate, economical and properly co ordinated transport service such as the one to which Section 68-C refers. That indeed was the approach made by the Chief Minister in the present case.

21. As explained by the Supreme Court in Capital Multipurpose Co-operative Societies v. State of Madhya Pradesh, : [1967]3SCR329 there is a presumption that the grant of approval which is made under Section 68-D is preceded by a consideration of all the relevant aspects of the matter. But the case before us does not merely depend upon any such presumption since there was a clear and comprehensive discussion of the objections to the scheme, So, the order of the Chief Minister far from displaying bias portrays the judicial approach on which Section 68-D insists.

22. A complaint was made at one stage that the opportunity which was made available under Section 68-D to make a representation or for hearing was not full. It was urged that when the Chief Minister took up the matter as late as in the year 1967 for final disposal, he could not make available to the petitioners a further opportunity to make further representation since under the provisions of Section 68-C representations should be made only within thirty days from the date of publication of the draft scheme. It was urged that since the Chief Minister could not allow any further representations to me made after the expiry of the period of limitation prescribed by Section 68-C and that since even otherwise no such opportunity was made available, the petitioners were precluded from urging before the Chief Minister grounds on which they could depend in the context of subsequent events in condemnation of the draft scheme.

23. We have already observed that the Chief Minister did take into consideration all the relevant materials which were produced before him and the petitioners did not seek at that stage any further opportunity to make any further representations, and, that that is so is what precludes the complaint that the opportunity for hearing was inadequate.

24. On behalf of 14 interveners for whom Mr. U. L. Narayana Rao appeared and on behalf of some others for whom Mr. K. Puttaswamy appeared, it was maintained that if the view taken by the Chief Minister was not one which a reasonable person could have taken on the materials before him, the approved scheme has to be struck down. In support of that submission, dependence was placed on the decision of the Supreme Court in Barium Chemicals Ltd. v. Company Law Board, : [1967]1SCR898 in which it is explained that an act of an executive authority who is invested with power which he could exercise can be quashed if it rests on a view which no reasonable person could have taken on the materials before him.

25. There are two reasons why this enunciation can be of no assistance to the petitioners. The first is that we not find it possible to say that the view taken by the Chief Minister was not reasonable. The second is that with respect to an adjudication under S. 68-D, the enunciation made in : [1960]3SCR742 is more apposite.

26. On behalf of the interveners many pieces of statistical information were produced before us with respect to many matters in support of the complaint that public interest has seriously suffered by the exclusive operation by the Corporation. Mr. Narayana Rao asks us to accept the affidavits of the 14 Chairmen of different village Panchayats who knew the needs of the general public better that any one else about the many serious shortcomings in the Corporation operations. But, we cannot look into these materials in these writ petitions in which we are concerned only with the short question whether the approved scheme which came into being under Section 68-D can be struck down as a scheme which was not possible under its provisions. The interveners, if they so desired, should have made representations at the appropriate stage and they cannot at this stage ask us to examine the approved scheme in the context of the materials now produced by them. That surely is not what we can do.

27. What we have said so far disposes of all the submissions made before us and so, we dismiss these ten writ petitions.

28. But, in Writ Petition No. 2053/68, we think that we should make a clarification which flows from the enunciation made by the Supreme Court in Ramnath Verma v. State of Rajasthan, : [1963]2SCR152 . That clarification which we should make is that in the case of inter-State permits of private operators, all that is forbidden is that a private operator cannot pick up a passenger and set him down at any point between the two terminal of the notified route. But, the private operator is at liberty to pick up passengers at points beyond the notified routes and set them down even at a point on the notified route. Similarly, they are at liberty to pick up passenger at a point on the notified route provided he is carried to a point beyond it. This clarification we make in respect of the inter-State permits covered by the Mangalore Scheme.

29. No costs.

30. Petition dismissed.


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