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A. Vishwanath Rao and anr. Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 1720 and 1722 of 1964
Judge
Reported inAIR1968Kant104; AIR1968Mys104
ActsRoad Transport Corporations Act - Sections 20
AppellantA. Vishwanath Rao and anr.
RespondentState of Mysore and ors.
Excerpt:
.....whereas the operators of the state of andhra pradesh were at perfect liberty to operate along that route. it is the duty of the state undertaking to so arrange its services on the nationalised route that those through passengers are subjected to the least inconvenience, and, that is a matter which concerns the preparation of the time-table and the like. (20) what clearly emerged from the pronouncement in aswathanarayana's case. (26) as already observed, what is perfectly manifest from the decision of the supreme court is that the question as to how far the disparity can extend without transgressing the bounds within which it should be kept, depends upon the facts of each case and its circumstances, the relevant factors to be considered in that context being the traffic, its volume, the..........scheme with modifications, by an order made by him on march 7, 1964. since the route was an inter-state route, the publication of the draft scheme was postponed until june 27, 1964, meanwhile, the approval of the central government had been accorded under the proviso to sub-section (3) of section 68-d of the act.(2) the approved scheme made two modifications to the draft scheme. the first was that it specified the minimum number of vehicles and daily services. the seconds was that it restricted the exclusion of other operators only to that part of the route which was in the state of mysore.(3) the distance between yadgir and narayanapet is 28 miles. the exclusion of private operators was restricted to that part of the route which lay between yadgir and a place called jilalpur, which is.....
Judgment:

Somnath Iyer, J.

(1) The two petitioners before us, who operate their stage carriages along the route, which is between a place called Yadgir. which is in the new State of Mysore, and Narayanapet, which is in the State of Andhra Pradesh, call in question a scheme prepared under Chapter IV-A of the Mysore Motor Vehicles Act, by which there was nationalisation of motor transport with respect to that route. The draft scheme which was prepared under section 68-C was published on June 21, 1962. The objections preferred by the petitioner and others under section 68-D were heard by the Chief Minister of the State of Mysore, who approved the scheme with modifications, by an order made by him on March 7, 1964. Since the route was an inter-State route, the publication of the draft scheme was postponed until June 27, 1964, Meanwhile, the approval of the Central Government had been accorded under the proviso to sub-section (3) of section 68-D of the Act.

(2) The approved scheme made two modifications to the draft scheme. The first was that it specified the minimum number of vehicles and daily services. The seconds was that it restricted the exclusion of other operators only to that part of the route which was in the State of Mysore.

(3) The distance between Yadgir and Narayanapet is 28 miles. The exclusion of private operators was restricted to that part of the route which lay between Yadgir and a place called Jilalpur, which is at a distance of five miles from Narayanapet. The position, therefore, was that private operators were excluded from that part of the route which is between Yadgir and Jilalpur and its distance is 23 miles.

(4) The grounds on which the petitioners impeach the approved scheme are these:

(5) It was firstly contended that the modification by which private operators were excluded only in respect of the route which lies within the State of Mysore, amounts to a discrimination against the operators in the State of Mysore.

(6) The second condemnation of the approved scheme was that it is not in accordance with the provisions of section 68-C since it omits to provide facilities for passengers travelling from places which are not situate on the route between Yadgir and Narayanapet.

(7) It was also urged that the prescription of the maximum and the minimum number of vehicles and daily services amounts to a fraud on the provisions of sections 68-C and 68-E of the Act.

(8) It was also urged that the minimum number of vehicles prescribed is far too low and that the Mysore State Road Transport Corporation which is the State Undertaking with which we are concerned and to which we shall refer as the Corporation, had not acquired eligibility to operate on an inter-State route under the provisions of S. 20 of the Road Transport Corporations Act, 1950.

(9) The last submission was that there was inordinate postponement of the pronouncement of the order by which the scheme was approved, and that the publications of the approved scheme under the signature of the Governor was not permissible.

(10) We shall consider these arguments in the order in which they were presented.

(11) In support of the argument that the restriction of the exclusion of private operators only from that part of the route which is situate in the State of Mysore, amounts to discrimination. Mr. Shetty contended that the exclusion is, in effect complete in respect of the operators in the State of Mysore. It was suggested to us that by reason of the restriction of the exclusion in that way, it became impossible for the operators in the State of Mysore to operate their stage carriages along the short route between Jilalpur and Narayanapet, which extends over a distance of only five miles, whereas the operators of the State of Andhra Pradesh were at perfect liberty to operate along that route. It is difficult to understand how it can be asserted that, in effect the operators in the State of Mysore stand excluded from this segment of the route.They are as much at liberty to operate their stage carriages on that part of the route as the operators in the State of Andhra Pradesh could.

(12) It may be that the two petitioners, who are not operating their stage carriages from Yadgir to Narayanapet, cannot take those stage carriages from Yadgir to Jilalpur, to operate them on the remaining part of the route between Jilalpur and Narayanapet. But that they encounter that difficulty which makes it necessary for them to station their stage carriages in Jilalpur so that they may use them on the route between Jilalpur and Narayanapet, does not exclude them from that part of the route, as contended. In our opinion, the complaint of discrimination is groundless.

(13) The criticism that the approved scheme causes inconvenience to through passengers coming from various places which are not situate on the nationalised rout is in our opinion, unavailable, and does not assist the challenge made to the approved scheme. The sketch before us shows that there are as many as six villages on the route between Yadgir and Narayanapet. One of them is Arakera and there is, we are told, a stage carriage operating between a place called Sedam and Yadgir which touches Arakera on the Yadgir and Narayanapet route. Similarly, there is another stage carriage operating between a place called Kadachur and Yadgir which touches the village called Ramasamudram, which is also on the route between Yadgir and Narayanapet. These two services are operated by the petitioners before us, and the complaint made is that through passengers who which to travel from Sedam to Yadgir or from Kadachur to Yadgir, as the case may be, have no facility for the performance of a continuous journey along the route between Arakera and Yadgir in the one case, and between Ramasamudram and Yadgir. There is yet another Yadgir via Arakera and the complaint made wish to travel from Chitapur to Yadgir is similar.

(14) Mr. Shetty made the complaint that the through passengers have to wait at Ramasamudram and Arakera for interminably long periods of time before they can ever hope to travel in the stage carriage services proposed to be operated by the Corporation, and urged that this hardship and privation to which those passengers are subjected, invites the condemnation that the transport service which is proposed to be operated by the Corporation is improperly coordinated, inefficient and detrimental to public interest. So it was urged that the proposed nationalisation was outside the orbit of section 68-C of the Act.

(15) We do not think that the approved scheme can be subjected to the criticism. In the case of many routes in respect of which there is nationalisation under the provisions of chapter IV-A of the Act, it may often happen that a journey along the whole of that route of parts thereof has to be performed by passengers who begin their journey from points which are situate away from that route in more than one direction. It may be that that is how they reach their destination on or beyond the route nationalised. But that does not mean that the scheme for nationalisation falls outside section 68-C and cannot be approved under section 68-D unless the State Undertaking makes arrangements for the carriages of through passengers from those points to their destination, as contended. If the purpose of national sation is to bring into being an efficient, adequate, economical and properly coordinated road transport service between the two termini, between which the route lies, any inconvenience caused to passengers performing a journey between which the route lies, any inconvenience caused to the route lies, any inconvenience caused to passengers performing a journey between other points and their destination cannot afford ground for the challenge that the ford ground for the challenge that the scheme is invalid. It is the duty of the State Undertaking to so arrange its services on the nationalised route that those through passengers are subjected to the least inconvenience, and, that is a matter which concerns the preparation of the time-table and the like. But the argument that, in all such cases, the exclusion should be partial and should not extend to overlapping portions, is in our opinion, plainly unsustainable.

(16) Moreover, it should be observed that all the routs which lie along the P.W D. roads in the district of Gulbarga have been nationalised and it is not disputed that the routes between Sedam and Arakera in the one case, between Chitapur and Arakera in the other, and between Kadachur and Ramasamudram in the third, are 'kacha' roads, which mean that they are only fair weather roads, on which there could be no transport service during the rainy season.

(17) We should now consider the argument founded on the prescription of the maximum and minimum number of vehicles and daily services. Although the State Transport Undertaking (Mysore) Rules which were made in the year 1960., provided only for the specification of the maximum and minimum number, the 1963 rules which displace the 1960 rules, directed the specification of both the maximum and the minimum. So it was that, in the draft scheme the maximum number of vehicles and trips were specified and not the minimum. But when the scheme was approved under S 68-D the modification made to the draft scheme included the specification of the minimum number of vehicles and daily services in respect of the route with which we are concerned. The approved scheme stated that the maximum number of vehicles was 13, and the minimum was 1. It further services was 10 and the minimum was 3.

(18) The argument constructed on the prescription of the maximum and minimum number of vehicles and daily services in this way was that the prescription was a plain contravention of the provisions of section 68-E which provide that a modification of an approved scheme is possible only by the process specified in sections 68C and 68-D.It was maintained that, by the prescription of the maximum and the minimum number of vehicles and daily services, the disparity between which was so great, that the provisions of section 68-E were circumvented and that such circumvention amounts to a fraud on the provisions of Ss. 68-C and 68-E. In support of this argument, the appeal made by Mr. Shetty was to the pronouncement of the Supreme Court in Aswathanarayana v. State of Mysore. : [1966]1SCR87 . The enunciation made in that case was that if the proportion which the minimum bears to the maximum is so great, and the gap between the two, is so wide as to make the prescription of the maximum and the minimum amount to a fraud on sections 68-C and 68-E, the scheme stands vitiated. On the basis of this enunciation we were asked to say that the minimum number of vehicles was a low as an eighth of the maximum number and that the gap between the maximum number of daily services and their minimum was as much as 7. It was urged that the Supreme Court indicated in their judgment that the disparity between the maximum and the minimum cannot exceed 50 percent of the maximum, and if it did, it amounts to circumvention of those two statutory provisions.

(19) It is plain that the Supreme Court did not make the enunciation as to the limits which should not be exceeded in respect of the disparity or the proportion. In one part of the judgment, the Supreme Court said it did not accept the view expressed in the earlier decision of that court in C. S. Rowjee v. State of Andhra Pradesh, AIR 1964 SC 1962 that the disparity where the minimum and the maximum was respectively 6 and 12 or 5 and 9, was exceptionable. It was explained that opinion was in the nature of obiter dictum.

(20) What clearly emerged from the pronouncement in Aswathanarayana's case. : [1966]1SCR87 is that the proportion which the maximum bears to the minimum, and the gap between them should not be such as to make available a foundation for an argument that there was a circumvention of section 68-C and 68-E. The elucidation was that circumvention is established only where the disparity between the maximum and the minimum was 'very wide'. It was further explained that the disparity between the minimum and maximum would depend upon a number of factors, such as the volume of traffic during different seasons of the year. and that the question whether the disparity yields the deduction that there was a circumvention would depend upon the facts and circumstances of each case. In that context, Wanchoo J. (as he then was) said this :

'There is no doubt that thought fixing of minimum and maximum number of vehicles and trips with respect to each route is permissible under S. 68-C and would not be hit by S. 68-E the proportion between the minimum and maximum should not be so great as to make the fixing of minimum and maximum a fraud on Ss. 68-C and 68-E of the Act., It is not possible to lay down specifically at what stage the fixing of minimum and maximum would turn into fraud; but it is only when the gap between the minimum and maximum is so great that it amounts to fraud on the Act that it will be open to a court to hold that the scheme is not in compliance with S, 68-C and is hit by S. 68-E. The gap between the minimum and maximum would depend upon a number of factors, particularly on the variation in the demand for transport at different scheme were to fix minimum and maximum with very wide disparity between the two, it may be possible for the court to hold after examining the facts of the case that such fixation is not in accordance with S. 68-C and is a fraud on S-68-E.'

(21) So it becomes necessary for us to examine the facts of the case, with which we are concerned, to examine the postulate placed before us that the prescription of the maximum and the minimum by the approved scheme amounts to a fraud on section 68-C and 68-E. If such scrutiny reveals that the disparity is 'very wide', or is ' so great', that the inference becomes irresistible that the scheme is open to that denunciation, that denunciation becomes unanswerable.

(22) Now the distance between Yadgir and Narayanapet is a short distance of twenty-eight miles When the matter was argued before the Chief Minister, it was urged on behalf of the State Undertaking that there were at least five reasons justifying flexibility with respect to the number of vehicles and daily services. The order of the Chief Minister reveals that the submissions made on behalf of the State undertaking in that way were accepted and those submissions were summarised in the order of the Chief Minister thus:

(b) The traffic movement and density are not static. They vary depending upon various factors.

(c) There is seasonal variation of traffic density. During marriage and other seasons, it is necessary to operate extras; and similarly during agricultural seasons, when the traffic decreases, the services have to be curtailed.

(d) There is also variation in traffic on account of auspicious and inauspicious days. On Tuesdays and amavasaya days, the number of vehicles and services to be operated will be less than what is operated on certain other days.

(e) Further the scheme will have to be sufficiently flexible to enable the sate Transport Undertaking to adjust its services and vehicles to cater to Shandy or weekly Bazar traffic to various places.

(f) The scheme will have to provide for operating extras during Jathras, Car-festivals and other occasions. The case of Dasara fair at Mysore, Ulvi fair at Ulvi, Shivarathri fair at Gokarn were cited to show how the normal number of vehicles of 2 or 4 and services of 4 or 8 operated daily had to be increased to 80 vehicles and 160 trips per day.'

(23) What was urged on behalf of the State Undertaking was that the volume of traffic between Yadgir and Narayanapet was necessarily subject to fluctuations. It was urged that it would increase during certain seasons when there were festivals, fairs and marriages and that during other periods it would diminish. It is common knowledge that it is so, but however that may be, the Chief Minister accepted the postulate placed before him in that way.

(24) It will be seen that on the route which measures only 28 miles in distance the provisions made in the approved scheme is that the State Transport Undertaking is at liberty to operate only one vehicle, if it thinks that not more than one vehicle need be operated, and that it could operate as many as eight vehicles if there be need for doing so. Similarly the scheme authorised the State Transport Undertaking to restrict the daily services in respect of each vehicle to three services and increase them to ten services, if need be. It is obvious that the approved scheme vests discretion in the increase the number of vehicles and daily increase the number of vehicles and daily services so as to be commensurate with actual requirements.

(25) If, as stated on behalf of the State Transport Undertaking, the volume of traffic varies and fluctuates depending upon various factors and circumstances, such as those which were brought to the notice of the Chief Minister during the argument, it does not appear to us that, on those facts, the disparity between the minimum and the maximum either in respect of the vehicles or is so wide as to justify the view that there was an oblique attempt to get round the provisions of sections 68-C and 68-E.

(26) As already observed, what is perfectly manifest from the decision of the Supreme Court is that the question as to how far the disparity can extend without transgressing the bounds within which it should be kept, depends upon the facts of each case and its circumstances, the relevant factors to be considered in that context being the traffic, its volume, the needs of the travelling public and the like.

(27) In Aswathanarayana's case, AIR 1965 SC `848, the scheme which was challenged related to nationalisation of motor transport in the district of Bellary. With respect to one of the services, the maximum number of vehicles, which could be operated was 20, and the minimum was 5, The gap between the maximum and the minimum was as much as 15, and the Supreme Court did not feel persuaded to take the view that disparity was 'so wide' as to justify the criticism that there was a fraud on the provisions of the Motor Vehicles Act. On the contrary, the court said this:

'In the present case. the gap is not of such a wide nature.'

(28) We are not impressed by the argument that what determines the validity of the prescription is the proportion which the maximum bears to the minimum. That proportion is not a constant factor and increases or diminishes with the magnitude of the maximum and the minimum in each case. If the maximum and the minimum are both high, the disparity between them produces a proportion which is smaller than the proportion which is yielded where the maximum and the minimum are comparatively low. So it was that the Supreme Court pointed out that what was relevant was not merely the proportion but also the gap; in other words, in judging the magnitude of the disparity, we must not only take into consideration the proportion but also a number of points which separate the maximum from the minimum.

(29) When we do so in the case, we do not feel persuaded to take the view that either the proportion which the maximum bears to the minimum or the gap between them is so great or is wide, as suggested to us. We therefore negative the argument founded on the prescription of the maximum and the minimum.

(30) What we have said so far is equally applicable to the complaint that the minimum number of vehicles specified in the approved scheme is far too low. It was urged that the two petitioners were operating two stage carriages between Yadgir and Narayanapet performing four daily trips and that the scheme which empowers the State Transport Undertaking to operate only one stage carriage and three daily services, if it chooses to do so, was utterly inadequate. But this argument overlooks the fact that the prescription of the minimum is for the purpose of avoidance of wasteful expenditure, in a situation in which the volume of traffic is so low that it may be utterly uneconomical to operate more than one vehicle or three daily services. The number of vehicles or three daily services. The number of vehicles operated by the existing operators or the number of daily trips performed by them can have no relevance for the fixation of the minimum, especially when it is seen that the maximum number of vehicles specified in the scheme is eight, and the maximum number of daily services is as high as 10. So the number of vehicles and the daily services of the petitioners suffers by obvious contrast.

(31) The next argument to which we should advert is that founded on section 20 of the Road Transport Corporations Act, 1950 which prescribes the procedure by which there could be extension of the operation of the road transport service of a Corporation to areas within another State. That section provided that if the Corporation desires to extend the operation of any of its road transport services to any route or area situated within another State, it should seek the permission of the State of Mysore and negotiate with the other State in that regard. It further provided that on obtaining the concurrence of the other State, the Corporation shall prepare a scheme for that purpose and forward it to that State Government and then proceed to sanction the scheme with the previous approval of the State of Mysore.

(32) Sub-section (3) states that after the scheme has been sanctioned, it shall be competent for the Corporation to extend the operation of its road transport service to such route or area in the other State and to operate its service on those routes and areas.

(33) The assertion made on behalf of the petitioners by Mr. Shetty was that the scheme envisaged by this section was not prepared and that, in consequence, the Corporation had become ineligible to operate its transport services on inter-Sate routes. Such as the one with which we are concerned. This ground was raised for the first time in the year 1967, although the writ petition was presented as early as in the year 1964.

(34) It was urged by Mr. Mahendra, appearing for the Corporation, that the provisions of S. 20 of the Road Transport Corporations Act became inapplicable to a scheme sanctioned under section 68-D of the Act and that such was the consequence of the approval of the Central Government accorded to a scheme which relates to an inter-State route under the proviso appearing under sub-section 3 of section 68-D of the Act. Mr. Mahendra alternatively contended that the petitioners should not be allowed to urge a contention which involves an investigation into a pure question of fact, such as whether section 20 of the Road Transport Corporations Act refers, and whether, in the context of the scheme, the previous approval of the State of Mysore or the Concurrence of the State of Andhra Pradesh was sought any event, since there was concurrence of been admittedly secured, and the Government of the State of Mysore had accorded its approval to the scheme prepared under-section 68-C, there was substantial compliance with the requirements of section 20 of the Road Transport Corporations Act.,

(35) On the question whether the provisions of section 20 of the Road Transport Corporations Act stand displaced by the scheme approved under section 68-D by the State Government, which receives the imprimatur of the Central Government under the proviso to sub-section 3 of that section, we abstain from expressing any opinion in this case. We negative the contention urged on behalf of the petitioners on the short ground that even if adherence to the provisions of section 20 of the Road Transport Corporations Act was not dispensed with, by the approval of the Central Government under the proviso to section 68-D and on that question we desist from expressing any opinion--there was substantial compliance with section 20 of the Road Transport Corporations Act. The essence of this section is that the State Transport Corporation shall not embark upon operation on a route which is situate outside the State in which it functions, without the approval of the Government of the State in which it is situate, and the concurrence of the other State, It may be that in that context, it should prepare a scheme in manner provided by that section but if the approval of the Government of its own State and the concurrence of the other State have been secured, as indeed they were secured in the case before us, the omission to make a scheme in the precise manner in which that section directs its preparation, amounts, in our opinion, to no more than a mere curable irregularity which does not lead to the nullification of the scheme.

(36) In the view that we take, we do not embark upon a discussion of the further questions whether the route to which section 20 of the Road Transport Corporations Act refers, is a route which is situate exclusively in another State, or whither it also governs an inter-State route such as the one with which we are concerned.

(37) What remains to be considered is the complaint that there was a postponement of the pronouncement of the order by which the Chief Minister approved the scheme under section 68-D of the Act. It will be seen that this compliant is really unfounded. Argument were heard on October 19, 1963 and the order was made by the Chief Minister on March 7, 1964. Mr Shetty had to admit that the complaint becomes devoid of substance if the Chief Minister had prepared his order on March 7, 1964, and informed us that the complaint of delay was advanced by the petitions since they were not aware that the order had been prepared as early as in March 1964. What was responsible for the postponement of the publication of the approved scheme is the fact that after the scheme was approved, some time was occupied in securing the approval of the Central Government under the proviso to section 68-D.

(38) About the submission that the Chief Minister who heard argument was a quasi judicial tribunal and that the order by which sanction to the scheme was accorded was expressed to be made in the name of the Governor, it is enough to observe that the original records produced before us by Mr. Vasudeva Reddy, the learned Government pleader, show that that order was prepared and signed by the Chief Minister himself, and that what appeared under the signature of the Governor was the publication of the approval under sub-section (3) of section 68-D.

(39) These two writ petitions therefore fail and we dismiss them.

(40) We make no direction in regard to costs.

(41) Petitions dismissed.


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