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Madhya Pradesh State Road Transport Corporation, Bhopal Vs. State Government of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 349 of 1980
Judge
Reported inAIR1984MP64
ActsMotor Vehicles Act, 1939 - Sections 68D(1); Madhya Pradesh Motor Vehicles Rules, 1974 - Rule 135(2)
AppellantMadhya Pradesh State Road Transport Corporation, Bhopal
RespondentState Government of Madhya Pradesh and ors.
Appellant AdvocateV.S. Dabir and ;A.G. Dhande, Advs.
Respondent AdvocateS.K. Dixit, ;B.K. Rawat and ;S.Q. Hassan, Advs.
DispositionPetition allowed
Cases ReferredIn Maganlal Chhagganlal (P.) Ltd. v. Municipal Corporation of Greater Bombay
Excerpt:
- - corporation and persons who have a right to object under section 68-d of tile act over the years, i am clearly of the view that the special secretary had no reason whatsoever to depart from his earlier view on the question and hold that non-publication of the scheme in hindi language in a regional newspaper was such a procedural irregularity that it warranted rejection of the scheme. ' broadly, the reasons given earlier while discussing the effect of alleged non-compliance of section 68-d (1) of the motor vehicles act, will apply mutatis mutandis to the applicability of rule 135 (2) as well......and the same were described in the scheme.3. respondents 3 to 15 filed objections before the special secretary, home who is the authority authorised by the state government under sub-section (2) of section 68-d of the act. the special secretary framed several issues on these objections and examined witnesses thereon. on 10-8-1979, the case was closed for final arguments. however, respondents 3 to 15 filed applications before the special secretary, home (respondent no. 2) for deciding issues about non-compliance of the requirements under section 68-d (1) of the motor vehicles act and rules 135 (2), 136 and 138 of the motor vehicles rules, as preliminary issues. the special secretary by the impugned order decided the issues about contravention of the procedural requirements mentioned.....
Judgment:
ORDER

K.N. Shukla, J.

1. This is a petition under Articles 226 and 227 of the Constitution of India seeking a writ of certiorari to quash the Order dated 26-5-1980 (Annexure D) passed by the Special Secretary, Home (respondent No. 2) rejecting Scheme No. 83 proposed by the petitioner under the provisions of the Motor Vehicles Act,

2. The petitioner Corporation is a State Transport Undertaking established under Section 3 of the Road Transport Corporation Act, 1950. Petitioner Corporation published Scheme No, 83 under the provisions of Section 68-C of the Motor Vehicles Act, 1939 (the Act hereinafter) in the Madhya Pradesh Rajpatra dated 10-2-1978 for exclusive operation of its stage carriages on the routes or portions thereof as stated in Clause (2) of the Scheme (Annexure A). The area and the routes under the Scheme fall within the jurisdiction of Regional Transport Authority (R. T. A.), Raipur. The petitioner also got the scheme published in Hindi daily 'NAV-BHARAT' dated 15-2-1978 which is published from Raipur. The Scheme was pasted on the notice boards of the State Transport Authority, M. P., Gwalior and the Regional Transport Authority, Raipur within Whose jurisdiction the areas and routes fell under the proposed Scheme. Details of the permits held by other operators in the area were obtained from RTA, Raipur and the same were described in the Scheme.

3. Respondents 3 to 15 filed objections before the Special Secretary, Home who is the authority authorised by the State Government under Sub-section (2) of Section 68-D of the Act. The Special Secretary framed several issues on these objections and examined witnesses thereon. On 10-8-1979, the case was closed for final arguments. However, respondents 3 to 15 filed applications before the Special Secretary, Home (respondent No. 2) for deciding issues about non-compliance of the requirements under Section 68-D (1) of the Motor Vehicles Act and Rules 135 (2), 136 and 138 of the Motor Vehicles Rules, as preliminary issues. The Special Secretary by the impugned order decided the issues about contravention of the procedural requirements mentioned above as preliminary issues. He did not record any finding on various other objections on which issues were framed and evidence had been recorded.

4. The Special Secretary, Home held that the Scheme was liable to be rejected because the petitioner Corporation did not comply with the requirements of Section 68-D (1) of the Motor Vehicles Act inasmuch as it did not publish the Scheme in the regional newspaper in Hindi language. According to the Special Secretary, publication of the Scheme in English in a regional Hindi newspaper did not fulfil the mandatory requirement of law. The Special Secretary also held that there was breach of Rule 135 (2) of the Motor Vehicles Rules because the Scheme was not pasted on the notice boards of Regional Transport Authorities, Jabalpur and Bilaspur. These were the 'concerned' Regional Transport Authorities along with RTA, Rajpur. The Special Secretary observed that this requirement was also mandatory because Permit Nos. 13/40, 50/41, 19/69, 125/56 and 46/60 mentioned in the Scheme though issued by the Raipur RTA to respondent No. 3 were counter-signed by Jabalpur and Bilaspur RTAs also as the buses under these permits passed partly through their areas. The Special Secretary, however, did not accept the contention of the objectors that there was contravention of Rules 136 and 138 also of the Motor Vehicles Rules.

5. A joint return has been filed by the State Government and the Special Secretary, Home (respondents Nos. 1 and 2). Of the remaining respondents only respondent No. 3 has filed its return. Respondents 1 and 2 have supported the impugned order and the reasons therefor.

6. Respondent No. 3 also supported the impugned order and the reasons given in support of the rejection of the Scheme. This respondent pleaded that the operators mentioned in the impugned order, namely, M/s. Durg Roadways (P.) Ltd., Durg, M/s. Durg Transport Company (P.) Ltd., Jabalpur, M/s. Durg District Motor Kamgar Society Ltd., Durg and M/s. Ashvini Rajkumar did not get an opportunity of filing objections against the proposed Scheme due to its non-publication in Hindi language.

7. It may be mentioned at this stage, that on 22-4-1981 the operators named above except M/s. Ashvini Rajkumar filed applications before this Court to intervene in this matter and this Court by its order dated 22-4-1981 allowed them to join as interveners. The fourth operator i. e. M/s. Asihvini Rajkumar was already joined as respondent No. 16 in the petition and an allegation was made that this permit holder had filed an objection before the Special Secretary and had delivered a copy thereof to the petitioner. The said copy was filed by the petitioner in the Court along with an affidavit, but M/s. Ashvini Rajkumar, respondent No. 16, neither filed a counter-affidavit nor a return, to controvert this allegation. To find out whether respondent No. 16 had filed any objection before the Special Secretary, Home or not, the record was perused and it was found that the same was not on record. From this it can be inferred that respondent No. 16 had delivered a copy of the objections to the petitioner as required under the Rules, but probably did not file the original before the Special Secretary, Home. The significant point to be noted is that, these objections, copy of which has been filed by the petitioner, were written in English and run into several pages. It may also be noted that the Managing Directors of the interveners companies did not specifically depose in their affidavits that they or their office bearers were not conversant with the English language.

8. Shri V. S. Dabir, learned counsel for the petitioner, contended that the Special Secretary, Home gravely erred in exercise of his jurisdiction in rejecting the Scheme on an assumption that there was an irregularity in the publication of the Scheme. Alternatively, learned counsel contended, that even if there was some irregularity the same was not fatal to the Scheme as no prejudice was shown by the respondents objectors either before the Special Secretary or before this Court. Learned counsel submitted that a direction under Section 68-D(f) of the Act for publication of the Scheme in one newspaper in regional language circulating in the area or route proposed to be covered by this Scheme was only directory and if no prejudice was shown, the Scheme could not be rejected.

9. As regards alleged contravention of Rule 135 (2), learned counsel for the petitioner urged that it was not necessary to paste the Scheme on the notice boards of the Jabalpur and Bilaspur RTAs as they were not the 'concerned' RTAs. Permits in question had been issued by the Raipur RTA in favour of respondent No. 3 which has its headquarter at Raipur itself. This respondent had filed objections before the Special Secretary, Home and opposed the Scheme. Thus, according to learned counsel, Jabalpur and Bilaspur RTAs were not the 'concerned' RTAs under Rule 135 (2) and even if they were, the permit holders whose permits were counter-signed by these RTAs, had notice of the Scheme and had raised objections. No prejudice was thus shown to this objector. Thus learned counsel submitted that the Scheme could not be rejected on the ground of contravention of the procedural requirement of Rule 135 (2) of the Motor Vehicles Rules.

10. In reply to this argument, learned counsel for the respondents submitted that requirements of Section 68-D (J) of the Act and Rule 135 (2) of the Rules were mandatory and non-compliance thereof justified rejection of the Scheme. In the alternative he contended that even if the procedural requirements were held to be directory the Special Secretary did not commit any juris-dictional error in holding that this requirement had to be complied with. Learned counsel argued that if two views about the procedural requirements were possible then no interference was called for by the High Court in exercise of its writ jurisdiction under Articles 226/227 of the Constitution of India. Reliance for this proposition was placed on Syed Yakoob v. K. S. Radhakrishnan, AIR 1964 SC 477.

11. During the course of arguments petitioner filed an additional affidavit to the effect that the petitioner had been publishing Scheme in the identical manner since 2-3-1970 and the State Government had approved 18 of them after rejecting similar objections. In some decisions (to be referred later) this High Court had also upheld the view that the Scheme could not be rejected on the ground of their non-publication in Hindi in a newspaper circulating in the area. Some orders rejecting similar objections were passed by the same Special Secretary, Home who passed the impugned order. Learned counsel submitted that the position which has been settled over the years and has been acted upon by all concerned will be unsettled by the interpretation put by the Special Secretary in the impugned order and the Schemes already approved will also be affected.

12. In reply to this affidavit, it was submitted on behalf of respondent No 3 that the question whether the publication should be made in Hindi or not had come up as a preliminary issue for the first time and, therefore, in the past no occasion arose to decide this fact as a preliminary issue.

13. For appreciating the rival contentions, reference may be made to the relevant provisions of the Motor Vehicles Act. Section 68-C of the Act requires preparation and publication of Scheme of road transport service of State Transport Undertaking. Section 68-D (1) is as follows :--

'68-D (1). On the publication of any Scheme in the Official Gazette and not less than one newspaper in regional language circulating in the area or route which is proposed to be covered by such scheme -

(i) Any person already providing transport facilities by any means along or near the area or route proposed to be covered by the Scheme;

(ii) any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government; and

(iii) any local authority or police authority within whose jurisdiction any part o the area or route proposed to be covered by the Scheme lies, may, within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Government.'

14. It will appear from the language used in this section that publication in the Official Gazette is mandatory. This will be clear from the fact that the limitation of 30 days for filing objections starts from the date of its publication in the Official Gazette. Unless the Scheme is published in the Official Gazette, objectors will not get any right or opportunity to file an objection against the scheme. However, publication only in a newspaper in regional language circulating in the area or route will not give any such right to the objectors. The purpose behind directing publication also in one newspaper in regional language circulating in the area or route is to give sufficient publicity to the Scheme so that the persons mentioned in Sec. 68-D (1) (i) to (iii) should become aware of the Scheme and file objections, if any,

15. The respondents herein i. e. holders of stage or contract carriage permits did not come up with the case that they were not aware of the proposed scheme or that they could not read the notices of the scheme in the Official Gazette or in the regional newspapers. Their grievance is, and this grievance prevailed with the Special Secretary, that some other transporters or various local authorities of the area i. e. the Municipal Council or Village Panchayats were deprived of the opportunity of filing objections against the proposed scheme.

16. The Special Secretary observed in the impugned crder that M/s. Durg Roadways (P.) Ltd., Durg, M/s. Durg Transport Company (P.) Ltd., Jabalpur, M/s. Durg District Motor Kamgar Society Ltd., Durg and M/s. Ashvini Rajkumar, Raipur whose permits were affected by the Scheme did not file any objection and from this omission on the part of these operators, he jumped to the conclusion that had the scheme been published in Hindi language in a regional newspaper circulating in the area, they would surely have raised objections to the scheme. This inference was purely conjectural and had been further exploded by the fact that three of the operators became in-terveners in this writ petition but their Managing Directors and the Officer-in-charge avoided making any statement in their affidavits that they or their other office bearers were not conversant with English language. As regards the fourth i. e. M/s. Ashvini Rajkumar, Raipur (respondent No. 16), the petitioner's unrebutted affidavit showed that this respondent toad delivered a copy of his detailed objections to the petitioner. Thus the inference drawn by the Special Secretary that these operators would have raised objections had this scheme been published in Hindi in a regional newspaper had no basis whatsoever. In M. P. Transport Service v. State of M. P., M. P. No. 701/79, decided on 11th Oct., 1979, a similar contention had been raised and was rejected by this Court' In para 8 of the order, it was observed that unless prejudice was shown on account of non-publication of the scheme in Hindi language, the same could not be rejected. The same view was taken by this Court in another case M/s. Shah Transport Company v. State of M. P., M. P. No. 702/79, decided on 11th Oct., 1979. In Ranganath v. State of M. P., M. P. No, 357/76, decided on 25th Oct., 1980, while disposing of a bunch of writ petitions challenging some schemes, this Court again reiterated its earlier view and rejected the contention of the Sar. pandhas of certain Gram Panchayats that the non-publication of the scheme in the regional language i. e. Hindi in a newspaper circulating in the area was fatal to it.

17. Learned counsel for respondent No. 3 sought a clear-cut interpretation of the requirement under Section 68-D (1) of the Act and contended that this Court should lay down whether the scheme should be published in the regional language i. e. Hindi in a local newspaper or it will be sufficient compliance of the requirement if the same was published in a newspaper in regional language circulating in the area even though the publication was in English. I have already reproduced the relevant portion of Section 68-D (1) of the Motor Vehicles Act. The words used are 'one newspaper in regional language circulating in the area'. Admittedly the newspaper 'NAV-BHARAT' in which the scheme was published was a newspaper in regional language circulating in the area. Learned counsel's contention in that words 'regional language' qualify the words 'any scheme' and not 'newspaper'. This construction is not borne out from a plain reading of Section 68-D (1) of the Act. If this were to be so, a scheme published in Hindi in a regional newspaper which is published in English will be in conformity with the provision. This obviously cannot be the correct interpretation. Besides, as already observed, in the absence of any material to show that any prejudice was caused to the objectors, the scheme could not be rejected on the ground of alleged non-compliance with the procedure for publication of the scheme in a newspaper in a regional language.

18. Learned counsel for the respondents referred to certain observations of the Supreme Court in Syed Yakoob v. K. S. Radhakrishnan, AIR 196-1 SC 477. In the cited case the Supreme Court made general observations in respect of the High Court's writ jurisdiction under Article 226 of the Constitution. In para 8 of the case their Lordships observed that if a statutory provision is reasonably capable of two constructions and one conduction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. The Supreme Court, however, added a caution saying that it was neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether there is an error of law or not must always depend upon the facts and circumstances of each case.

19. While dealing with the language used in Sec. 68-D (1) of the Motor Vehicles Act I have noted that the plain construction is that the publication should be in a newspaper in a regional language circulating in the area proposed to be covered by the scheme. It is not necessary that the scheme itself should be published in the regional language. This interpretation will be just and proper also for another reason. As the supplementary affidavit of the petitioner shows, the petitioner Corporation has been publishing schemes in the same manner i.e. in the Official Gazette and in a newspaper published in the regional language though the scheme itself in such a newspaper is published in English. This has been going on since March, 1970. Several such schemes have already been approved and are in operation. Persons entitled to object to a scheme under Section 68-D (1) of the Act are fully aware of the publications of various schemes in this manner. Writ petitions raising the very same question have been decided by this Court and the objections have been repelled on the touch-stone of absence, of prejudice. Now to put a different construction on this provision will obviously unsettle this settled position. In Maganlal Chhagganlal (P.) Ltd. v. Municipal Corporation of Greater Bombay, AIR 1974 SC 2009, Khanna, J. in a separate decision referred to the doctrine of stare decisis and observed : 'It may perhaps be laid down as a broad proposition that a view which has been accepted for a long period of time should not be disturbed unless the Court can say positively that it was wrong or unreasonable or that it is productive of public hardship of inconvenience'.

20. Thus by construing the language of Section 68-D (1) of the Act and also by taking into consideration the state of affairs accepted by the State Government, the Special Secretary, the petitioner; Corporation and persons who have a right to object under Section 68-D of tile Act over the years, I am clearly of the view that the Special Secretary had no reason whatsoever to depart from his earlier view on the question and hold that non-publication of the scheme in Hindi language in a regional newspaper was such a procedural irregularity that it warranted rejection of the scheme.

21. The second ground on which the Special Secretary rejected the scheme was that there was non compliance of the Rule 135 (2) of the Motor Vehicles Rules. The Rule is as follows :

'The scheme shall be published in the Official Gazette in Form N. S. I. appended to these Rules and in case of cancellation or modification of any existing scheme under Section 68-E, in Form N. S. II appended to those Rules. The Head of the State Transport Undertaking shall also publish the scheme by pasting it on a notice board of the Office of the State Transport Authority, Madhya Pradesh, and at the offices of the concerned Regional Transport Authorities of the State.'

Broadly, the reasons given earlier while discussing the effect of alleged non-compliance of Section 68-D (1) of the Motor Vehicles Act, will apply mutatis mutandis to the applicability of Rule 135 (2) as well. The Special Secretary was of the view that the scheme ought to have been pasted on the notice boards of the offices of Jabalpur and Bilaspur RTAs because respondent No. 3 plies his buses on routes which partly fall within the area of those RTAs. Admittedly the permits for plying carriages on these routes have been issued by the Raipur RTA. Also, admittedly, respondent No. 3 who is the holder of the aforesaid permits had notice of the scheme. What difference therefore, could it make to this respondent had this scheme been pasted on the notice boards of Jabalpur and Bilaspur RTA's, passes comprehension. Merely because the rule has used the word 'shall' its non compliance will not vitiate the scheme nor will make the rule mandatory. The rule has been framed in order to give the widest possible publicity to the scheme in the area where it is to be operated. If that purpose was served, as apparently it was served in the present case since respondent No 3 filed objections before the Special Secretary, there could be no prejudice whatsoever to such a permit holder even if it is assumed that Jabalpur and Bilaspur RTAs were the 'concerned' RTAs within the meaning of Rule 135 (2) of the Motor Vehicles Rules.

22. Besides, I am of the view that Jabalpur and Bilaspur RTAs were not the concerned RTAs in the present case. The aforesaid permits to respondent No. 3 had been issued by the RTA, Raipur, Since the buses passed through the area falling within the jurisdiction of the Jabalpur and Bilas-pur RTAs, the permits required their counter signatures. This requirement of obtaining counter signatures of the RTAs did not make them the 'concerned' RTAs because the permit issuing authority was the Raipur RTA and the area covered by the scheme was the area falling within the jurisdiction of the Raipur RTA. There was thus no basis for holding that the Jabalpur and Bilaspur RTAs also were the concerned authorities requiring pasting of the scheme on the notice boards at their offices.

23. As already noted the Special Secretary rejected the entire scheme at the door step, without deciding other objections, on the ground that the same was not properly published. The order of the Special Secretary was patently wrong and the mistake was apparent on the record. Besides, the Special Secretary did not properly appreciate the law repeatedly stated by this Court on the question of publication of the scheme under Section 68-D (1) of the Motor Vehicles Act. In the result the impugned order dated 26-5-1980 is quashed. The matter will go before the Special Secretary again for deciding all the objections on merits and then pass an appropriate order approving or modifying the scheme in accordance with the provisions of Section 68-D (2) of the Motor Vehicles Act. Costs of this writ petition shall be borne by respondents 3 to 16. Advocate's fee, Rs. 300/-, if certified. The outstanding amount of security shall be refunded to the petitioner.


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