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Raipur Transport Co. Pvt. Ltd., Raipur and anr. Vs. the State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Nos. 112, 131, 151, 152, 153, 229, 249, 295, 338, 367, 368, 374, 512 and 537 all of 1966
Judge
Reported inAIR1969MP150; 1968MPLJ854
ActsConstitution of India - Articles 166(3) and 226; Motor Vehicles Act, 1939 - Sections 68C and 68D(2); Business Allocation Rules
AppellantRaipur Transport Co. Pvt. Ltd., Raipur and anr.
RespondentThe State of Madhya Pradesh and ors.
Appellant AdvocateR.M. Hazarnavis, ;M.N. Phadke and ;Y.S. Dharmadhikari, Advs.
Respondent AdvocateK.A. Chitaley, Adv. General and ;V.S. Dabir, Adv. for Respondent No. 7 and ;K.K. Dubey, Government Adv. for Respondents Nos. 1 and 2
Cases ReferredSudarshan Transport Services v. State of Madhya Pradesh and
Excerpt:
- - (c) that even the delegation under the rules of business was bad as on the dates on which the special secretary issued to the petitioners notices to file their objections, he was only invested with the power of disposing of the objections and not with the power of 'approving or modifying the schemes';(d) that the power of approving or modifying the schemes which was given to the special secretary subsequently on 12th january 1965 should have been given simultaneously along with the power of disposal with which he was invested on 12th july 1963; and (e) that as the state government did not establish a separate motor vehicles department as required by section 133-a of the motor vehicles act, 1939, that department could not be allocated under the rules of business and consequently no.....dixit, c.j.1. this order will also govern the disposal of misc. petitions nos. 112, 131, 151, 152, 153, 229, 249, 295,367, 368, 374, 512 and 537, all of 1966 and misc. petition no. 45 of 1967.2. in all these petitions under articles 226 and 227 of the constitution, the validity of schemes, described as schemes nos. 13, 14, 19, 23, 26, 33, 42, 60 and 61, published by the state government under section 68-d (3) of the motor vehicles act, 1939, (hereinafter called the act), has been challenged. in exercise of the powers conferred by section 68-c of the act, the madhya pra-desh state road transport corporation (hereinafter referred to as the corporation), constituted under the road transport corporations act, 1950, published proposals in various issues of the gazette propounding the.....
Judgment:

Dixit, C.J.

1. This order will also govern the disposal of Misc. Petitions Nos. 112, 131, 151, 152, 153, 229, 249, 295,367, 368, 374, 512 and 537, all of 1966 and Misc. Petition No. 45 of 1967.

2. In all these petitions under Articles 226 and 227 of the Constitution, the validity of Schemes, described as Schemes Nos. 13, 14, 19, 23, 26, 33, 42, 60 and 61, published by the State Government under Section 68-D (3) of the Motor Vehicles Act, 1939, (hereinafter called the Act), has been challenged. In exercise of the powers conferred by Section 68-C of the Act, the Madhya Pra-desh State Road Transport Corporation (hereinafter referred to as the Corporation), constituted under the Road Transport Corporations Act, 1950, published proposals in various issues of the Gazette propounding the aforestated Schemes for the running and operation by the Corporation of road transport services on the routes specified in the Schemes. The notifications publishing the Schemes invited the persons affected by the Schemes to file objections, if any, before the respondent No. 2, Special Secretary to Government'in the Home Department, in accordance with Rule 4 of the Madhya Pradesh State Road Transport Services (Development) Rules, 1959, (hereinafter called the Rules), The petitioners filed objections under Section 68-D of the Act, which were heard by the Special Secretary, he being the person appointed by the Government to approve or modify the Schemes after considering the objections thereto.

After considering the objections, the Special Secretary passed an order under Section 68-D (2) in relation to each Scheme rejecting the objections to the Scheme, approving it with some modifications, and fixing a date for the coming into force of each Scheme. Thereafter, the various Schemes, as approved and modified under Sub-section (2) of Section 68-D, were published in the Gazette as required by Sub-section (3) of Section 68-D of the Act.

3. The petitioners, who run transport services wholly or partly on the routes covered by the Schemes, question the validity of the Schemes and pray that by the issue of writs of certiorari, the Schemes, as published under Section 68-D (3), as also the orders of the Special Secretary approving the Schemes, with some modifications be quashed, and the respondents be restrained from giving effect to the Schemes.

4. The petitioners have taken several grounds attacking the validity of the Schemes. Some of the grounds are common to all the petitions. Many of the grounds of challenge are similar to those raised in Premchand Jain v. State of M. P. AIR 1965 Madh Pra 196, Premchand Jain v. State of M. P. AIR 1966 Madh Pra 117 and Capital Multi Purpose Co-operative Society v. State of M. P., M. P. No. 351/65 D/- 15-9-1966 (MP). These points are concluded by the decisions just referred to, and by the decision of the Supreme Court in C. M. P. Co-Operative Societies v. State of M. P., AIR 1967 SC 1815, affirming the decision of this Court in M. P. No. 351 of 1965 D/- 15-9-1966 (MP). The concluded contentions are :--

1. That the Special Secretary had no jurisdiction to hear the objections or to approve or modify the Schemes for the reasons -

(a) that the power conferred in that behalf on the State Government under Section 68-D (2) and (3) of the Act could not be delegated;

(b) that if the power could be delegated at all, it could be only under Section 68-D (2-a) and not under the Rules of Business;

(c) that even the delegation under the Rules of Business was bad as on the dates on which the Special Secretary issued to the petitioners notices to file their objections, he was only invested with the power of disposing of the objections and not with the power of 'approving or modifying the Schemes';

(d) that the power of approving or modifying the Schemes which was given to the Special Secretary subsequently on 12th January 1965 should have been given simultaneously along with the power of disposal with which he was invested on 12th July 1963; and

(e) that as the State Government did not establish a separate Motor Vehicles Department as required by Section 133-A of the Motor Vehicles Act, 1939, that department could not be allocated under the Rules of Business and consequently no action under Chapter IV-A of the 1939 Act could be taken under the Rules of Business.

2. That the explanation to Sub-section (1) of Section 68-D of the Act, inserted by the local Amending Act No. 2 of 1963 is ultra vires, and that the amended Rule 6 of the Rules giving to the objectors only seven days' notice before the date of hearing is not consistent with Section 68-D (2) and did not give them an effective opportunity of hearing.

3. That the Road Transport Corporations Act, 1950, under which the respondent-Corporation was established, did not authorise the Corporation to undertake any Scheme of nationalisation of Road transport or to publish any Scheme under Section 68-C of the Motor Vehicles Act, 1939.

4. That the Corporation was not validly constituted when resolutions formulating proposals of the Schemes and authorising their publication were passed by it; and

5. That the draft Schemes and the approved Schemes were vitiated inasmuch as in the draft Schemes the material on which the respondent-Corporation formed the opinion that for the purposes of providing an efficient, adequate, economical and properly co-ordinated system of road transport services, it was necessary in the public interest to propound the Schemes, was not disclosed.

5. The first two grounds are concluded by the decisions in AIR 1965 Madh Pra 196 and AIR 1966 Madh Pra 117; the remaining grounds are concluded by the decision in M. P. No. 351 of 1965 D/- 15-9-1906 (MP), affirmed by the Supreme Court in AIR 1967 SC 1815. All those points must, therefore, be and are rejected for the reasons given in those decisions. Learned counsel appearing for the petitioners, however, raised the points formally before us in order to keep them open in the Supreme Court.

6. Shri Hajarnavis, learned counsel for the petitioners in M. P. No. 338 of 1966, in which the validity of Scheme No. 13 has been challenged, however, pressed on us the ground that the Special Secretary had no jurisdiction to hear the objections or to approve or modify the Schemes as the power conferred in that behalf on the State Government under Section 68-D (2) and (3) of the Act could not be delegated, by presenting before us some aspects of the question which had not been argued in the two cases of Premchand Jain AIR 1965 Madh Pra 196 and AIR 1966 Madh Pra 117 (supra) and in the case of Capital Multipurpose Co-operative Society, M. P. No. 351 of 1965 D/- 15-9-1966 (MP). His argument on this point was adopted by learned counsel appearing for the applicants in other petitions. Before stating the contentions advanced by Shri Hajarnavis and examining their validity, it is necessary to state the context in which they have been raised.

7. Section 68-D, in its application to the State of Madhya Pradesh, has been modified by the Motor Vehicles (Madhya Pradesh Amendment) Act, 1962 (No. 2 of 1963). bY the amending Act, an Explanation has been added to Sub-section (i) of Section 68-D defining the words 'person affected' as meaning and including -

(a) a person already providing transport facilities by any means along or near the area or route covered by the scheme;

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

(c) any local authority within whose jurisdiction any area or route covered by the scheme or any part thereof lies.

A new Sub-section (2-a) has also been inserted in Section 68-D. That is as follows :--

'(2-a). The State Government may, by notification, authorise any officer not below the rank of a Secretary to Government for the purpose of hearing objections under Sub-section (2)'.

8. On 12th July 1963, the Chief Minister by an order in pursuance of Supplementary Instruction No. 2 issued under Rule 13 of the Rules of Business of the Executive Government of Madhya Pradesh made under Article 166(3) of the Constitution, empowered Shri R. S. Shukla, Special Secretary to Government in the Home Department, to dispose of the objections received to the Schemes specified in the Schedule to that Order, as also to 'such other future Schemes as may be notified by the Madhya Pradesh State Road Transport Corporation'. Supplementary Instruction No. 2 was amended on 1st January 1965 so as to provide expressly that any particular item of business allocated to a Department may be disposed of by the Special Secretary and that the power to dispose of a case includes the power to -

(i) hear the parties;

(ii) make such inquiry and take such other action as may be necessary for or incidental to reaching a final decision in the case;

(iii) pass final orders and take such further action as may be necessary in exercise of powers conferred on the State Government by or under any provision of law; and

(iv) approve or modify a scheme and take all further steps towards that end including publication with or without the approval of the Central Government, as the case may be, under Section 68-D of the Motor Vehicles Act, 1939. Rule 7 of the Rules of Business was also amended on 1st January 1965 so as to empower the Special Secretary to sign an order or instrument of the Government and providing that such signature shall be deemed to be the proper authentication of the order or instrument.

9. On 12th January 1965, the Chief Minister made another order in pursuance of Supplementary Instruction No. 2, issued under Rule 13 of the Rules of Business of the Executive Government of Madhya Pradesh and in continuation of the order of the Chief Minister dated the 12th July 1963, directing that Shri Shukla, Special Secretary, shall in exercise of the powers conferred on the State Government under Section 68-D of the Motor Vehicles Act, 1939 approve or modify the Schemes specified in the Schedule attached to that order and also take all further steps towards that end including publication, with or without the approval of the Central Government. In the Schedule to that order, Schemes numbered as 13, 14, 19, 23 and 26 were included. On 6th March 1965, the Chief Minister made an order similar to the one made on 12th January 1965 in relation to Schemes Nos. 33, 42, 60, 61 and other Schemes.

10. Schemes Nos. 13 and 14, which were first published under Section 68-C of the Act in the Gazette dated the 7th February 1964, were, however, rejected by the Special Secretary by an order passed by him on 13th January 1965 under Section 68-D (2) of the Act on the ground that both the Schemes were published in contravention of Section 68-C and were, therefore, invalid. In the Gazette dated the 5th February, 1965, the Corporation published two Schemes, bearing Nos. 13 and 14. These Schemes were substantially the same as those published in the Gazette dated 7th February 1964 and also bearing Nos. 13 and 14; the only difference between the two sets of Schemes, one published on 7th February 1964 and the other on 5th February 1965, was that in the two Schemes subsequently published some additional routes, which did not form part of Schemes Nos. 13 and 14 as published on 7th February 1964, were included.

11. On 5th January 1966, the Chief Minister made another order in pursuance of Supplementary Instruction No. 2 issued under Rule 13 of the Rules of Business of the Executive Government of Madhya Pradesh and in continuation of the order of the Chief Minister dated the 12th July 1963 and in partial modification of the order of the Chief Minister made on 12th January 1965, in so far as they related to Schemes Nos. 13 and 14, directing that Shri Shukla, Special Secretary, shall in exercise of the powers conferred on the State Government under Section 68-D of the Act approve or modify the Schemes specified in the Schedule to that order, namely, the order dated the 5th January 1966. The Schedule contained the two Schemes bearing Nos. 13 and 14, as published on 5th February 1965.

12. Shri Hajarnavis first urged that the empowerment of Shri Shukla to dispose of objections received to the Schemes and to approve or modify the Schemes by the aforestated four orders made by the Chief Minister under the Rules of Business, was invalid. The argument was that Article 166 of the Constitution dealt with the executive power and action of the Government; that the Rules of Business made under Article 166(3) of the Constitution were for regulating the acts of the Governor or his subordinates in discharge of the executive power of the State Government; that the function of considering objections to the Schemes and of approving or modi-fying the Schemes under Section 68-D of the Act was a quasi-judicial function as held by the Supreme Court in G. Nageswara Rao v. A. P. S. K. T. Corporation, 1959 Supp (1) SCR 319: AIR 1959 SC 308, and not an executive function; and, further, that quasi-judicial functions could not at all be delegated. Relying on the observations of the Supreme Court in Paragraph 12 of the judgment in H, C. Nara-yanappa v. State of Mysore, AIR 1960 SC 1073, that a Scheme framed under Section 68-C of the Motor Vehicles Act, 1939, may properly be regarded as 'law' within the meaning of Article 19(6) of the Constitution, learned counsel urged that the function under Section 68-D of considering objections to a Scheme and of approving or modifying it was a legislative function also, and that this legislative function could not be delegated under the Rules of Business made under Article 166(3) of the Constitution. Learned counsel referred us to the statement in Ram Jawaya v. State of Punjab, 1955-2 SCR 225: AIR 1955 SC 549, that 'ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away', and then proceeded to say that as the function of considering objections to a Scheme and of approving or modifying it was a judicial as well as a legislative function, it was not an executive function which could be regulated by the Rules of Business.

13. There is no substance in this contention. The flaw in the argument lies in assuming that executive functions are performed exclusively by the Executive, and legislative and judicial functions are exclusively performed by the Legislature or Judiciary respectively. This is not so. The Executive may be empowered by a statute to perform certain functions and exercise certain powers which may have, at the same moment, executive, legislative and judicial characteristics. The decisions of the Supreme Court in Province of Bombay v. Khushaldas. 1950 SCR 621: AIR 1950 SC 222, Board of High School and Intermediate Education U. P., Allahabad v. Ghanshyam Das, AIR 1962 SC 1110, Board of Revenue U. P., Allahabad v. Vidyawati, AIR 1962 SC 1217, and of this Court in Moti Miyan v. Commissioner, Indore Division, 1960 MPLJ 100: (AIR 1960 Madh Pra 157), and State of Madhya Pradesh v. Board of Revenue, 1964 MPLJ 237, make it abundantly plain that a quasi-judicial decision is nothing but an administrative decision, some stage or some element of which possesses judicial characteristics. The distinction between a quasi-judicial and a pure administrative decision has been pointed out in Moti Miyan's case, 1960 MPLJ 100: (AIR. 1960 Madh Pra 157) (supra) thus :--

'The decision, whether quasi-judicial or administrative, is taken by the compe-tent authority in the exercise of its dis-cretion. But the distinguishing feature of the two kinds of acts is the mode or manner in which the opinion on the basis of which the act is done by the authority in the exercise of its discretion is formed. The decision would be quasi-judicial if in reaching that decision the authority is required first to ascertain certain facts by means of evidence and is then free to take such action as it may think fit on the facts so ascertained. In such a case the authority must consider the representations and objections of the parties affected and give them an opportunity to adduce and examine the evidence. On the other hand, the decision would be purely administrative if in taking that decision the authority is free to base its opinion on whatever material it thinks fit and howsoever obtained in the course of its executive functions or derived from the evidence at an enquiry, if there is any. One must, therefore, look to the particular provisions of the statute in order to determine the question whether the authority acting under those provisions acts in an administrative or a quasi-judicial capacity.'

So also, in Jaswant Sugar Mills Ltd. v. Lakshmi Chand, AIR 1963 SC 677, the Supreme Court, has said :--

'The duty to act judicially imposed upon an authority by statute does not necessarily clothe the authority with the judicial power of the State. Even administrative or executive authorities are often by virtue of their constitution, required to act judicially in dealing with question affecting the rights of citizens. Boards of Revenue, Customs Authorities, Motor Vehicles Authorities, Income-tax and Sales-tax Officers are illustrations prima facie of such administrative authorities, who though under a duty to act judicially, either by the express provisions of the statutes constituting them or by the rules framed thereunder or by the implication either of the statutes or the powers conferred upon them are still not delegates of the judicial power of the, State. Their primary function is administrative and not judicial.'

14. It is, therefore, plain from the decisions, to which a reference has been just made, that the function performed under Section 68-D of the Act of hearing objections to a Scheme and of approving or modifying it is essentially an administrative function, though the process of hearing objections to the Scheme is quasi-judicial. Learned counsel said that the, authority specified under Section 68-D was the State Government, and he seemed to suggest that the Judicial authority was the Governor. If, as held by the Supreme Court in AIR 1960 SC 1073, a Scheme framed under Section 68-C is a 'law' within the meaning of Article 19(6) of the Constitution then it is clear that the function performed under Section 68-D is executive, quasi-judicial, as well as legislative. The fact that the function performed under Section 68-D has iudicial and legislative characteristics also does not, however, take out that function from the realm of a function performed in discharge of the executive power of the State Government and which function can be regulated by the Rules of Business. The matter does not admit of any doubt in view of the observations of the Supreme Court in Jayantilal Amratlal v. F. N. Rana, AIR 1964 SC 648 at p. 655. The pertinent observations are -

'In the performance of the executive functions, public authorities issue orders which are not far removed from legislation and make decisions affecting the personal and proprietary rights of individuals which are quasi-judicial in character. In addition to these quasi-judicial and quasi-legislative functions, the executive has also been empowered by statute to exercise functions which are legislative and judicial in character, and in certain instances, powers are exercised which appear to partake at the same moment of legislative, executive and judicial characteristics. In the complexity of problems which modern government have to face and the plethora of parliamentary business to which it inevitably leads, it becomes necessary that the executive should often exercise powers of subordinate legislation.'

These observations support the view that if executive functions also involve quasi-legislative and quasi-judicial functions then those functions can also be delegated as part of the executive functions.

15. The matter is really concluded by the following observations of the Supreme Court in the case of 1959 Supp (1) SCR 319 at pp. 353-354: AIR 1959 SC 308 at p. 326:

'At this stage, the argument hinted at but not seriously pressed, may be noticed. The Rules the Governor is authorised to make, the argument proceeds, are only to regulate the acts of the Governor or his subordinates in discharge of the executive power of the State Government, and, therefore, will not govern the quasi-judicial functions entrusted to it. There is a fallacy in this argument. The concept of a quasi-iudicial act implies that the act is not wholly judicial; it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing someacts in exercise of its executive power. The procedural rules made by the Governor for the convenient transaction of business of the State Government apply also to quasi-judicial acts, provided those Rules conform to the principles of judicial procedure.'

On the basis of these observations and other cases of the Supreme Court it was held in AIR 1965 Madh Pra 196 that the business of the Government of a State includes its statutory and quasi-judicial functions and the Ministers and other subordinate officers may be authorised to dis-charge such functions in accordance with the Rules of Business made under Article 166(3) of the Constitution. The contention of Shri Hajarnavis that as the function discharged under Section 68-D (2) of the Act was quasi-judicial and legislative, it could not be delegated by the State Government under the Rules of Business, cannot, therefore, be accepted.

16. Shri Hajarnavis's next submission that if the functions under Section 68-D (2) of the Act could be at all delegated, that could be only under Section 68-D (2-a), must also be rejected in view of the decision of the Supreme Court in AIR 1967 SC 1815. On this point, learned counsel's argument was that the executive power of the State having merged in the statutory provision contained in Section 68-D (2-a), the delegation of the functions under Section 68-D (2) could only be in the manner provided by Sub-section (2-a), and that as the Special Secretary was an officer below the rank of Secretary to Government, he could not be authorised under Sub-section (2-a) to hear objections under Sub-section (2) of Section 68-D. This very contention was raised before the Supreme Court in the case of C. M. P. Co-operative Societies, AIR 1967 SC 1815 (supra) and was rejected by the Supreme Court after examining the provisions of Section 68-D (2-a) and the Rules of Business. The Supreme Court also observed in so many words that the Special Secretary to Government in that case was an officer not below the rank of Secretary to Government. It may be noted that in the case of C. M. P. Co-operative Societies, AIR 1967 SC 1815 (supra) also Shri R. S. Shukla was the Special Secretary who considered the objections to the Schemes and approved them. It is not that some different officer was appointed in the cases before us as Special Secretary.

17. At this stage, it would be convenient to deal with the contention put forward by Shri Dharmadhikari, learned counsel appearing for the petitioners in some of the petitions before us. He also contended that the Special Secretary, who heard the objections and approved the Schemes, had no authority to do so. His argument was that under Rules 6 (4) and(5) of the M. P. State Road Transport Services (Development) Rules, 1959, framed under Section 68-I of the Motor Vehicles Act, 1939, the State Government had to hear objections to the Schemes and, after considering them, approve or modify the Schemes; that the 'State Government' meant the 'Governor'; and that consequently the Special Secretary could not be authorised under Section 68-D (2) of the Act and the Rules of Business to hear objections to the Schemes and approve or modify them.

18. This contention is altogether unsubstantial. Rule 6 of the Rules deals with consideration and disposal of objections. The first sub-rule says that the Special Secretary to the Government, Madhya Pradesh, Home Department, shall fix a date, time and place for the hearing of objections. Sub-rules (4) and (5) of Rule 6 are as follows -

'(4) The State Government shall hear such objectors or their approved agents as may desire to be heard and also the Head of the State Transport Undertaking or any other person authorised by him in writing in this behalf, if he appears,

(5) The State Government shall, after considering the objections, approve or modify the scheme as it thinks fit and shall, subject to the proviso to Sub-section (3) of Section 68-D of the Act, publish the Scheme so approved or modified, in the official Gazette in Form III appended to these Rules.'

'State Government' has been denned in Rule 2 (e) of the Rules as meaning 'the Government of Madhya Pradesh.' It will be seen that there is no inconsistency of any kind between Section 68-D (2) of the Act and Rules 6 (4) and (5) of the Rules; there is also no inconsistency between the Rules of Business and Rules 6(4) and (5) of the Rules. Neither Section 68-D of the Act nor the rules relied on by the learned counsel confer on the Governor any statutory power.

Under Section 3 (60) fc) of the General Clauses Act, 1897, the 'State Government' no doubt means, as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, the Governor. But it is important to note that this identification of the Governor with the State Government is in relation to the executive power of the State. Rule 2 (e) of the Rules itself makes it clear that the State Government means the Government of Madhya Pradesh. As has been observed in State of Bombay v. Purushottam Jog Naik, 1952 SCR 674 at p. 679: (AIR 1952 SC 317 at p. 318), 'though the term 'State Government' appearing in an enactment means the Governor of the State, there is no provision of law which equates the termGovernor with the State Government of which he happens to be the head.' The question under Section 68-D of the Act or under Rule 6 of the Rules is of the exercise of the 'executive power of the State'.

The executive power of the State vests in the Governor; it is exercised by him directly or by officers subordinate to him in accordance with the provisions of the. Constitution. The Ministers headed by the Chief Minister advise him in the exercise of his functions. The business of the Government of the State is transacted in accordance with the rules framed by the Governor under Article 166(3) of the Constitution. When, therefore, the State Government is required under Sub-rules (4) and (5) of Rule 6 to hear objections to a Scheme and then, after considering the objections, to approve or modify the Scheme, the State Government can discharge that function in accordance with the Rules of Business.

As observed by the Supreme Court in Paragraph 6 of the judgment in AIR 1967 SC 1815, that 'the State Government obviously is not a natural person and, therefore, some natural person has to give hearing on behalf of the State Government. Article 166(3) of the Constitution gives power to the Governor to make rules for the more convenient transaction of the business of the Government of a State and the Rules of Business have been framed under this power for performance of the duties which have to be performed under the law by the State Government.' These observations leave no doubt that the duty, which the State Government is required to perform under Sub-rules (4) and (5) of Rule 6, could be performed by a person duly authorised under the Rules of Business. It is not disputed that the Special Secretary, who heard the objections and approved or modified the Schemes, was authorised under the Rules of Business. The contention, therefore, of Shri Dharmadhikari, which involves the assumption that the matter covered by Sub-rules (4) and (5) of Rule 6 of the Rules is not Government business falling under Article 166 and the Rules of Business framed under Article 166(3) for the more convenient transaction of the business of the State have consequently no applicability, cannot be accepted.

19. Reverting to the contentions urged by Shri Hajarnavis, he next said that under Paragraph 3 of the Supplementary Instructions issued under Rule 13 of the Rules of Business, the Secretary has to submit a weekly list of cases, which ha has disposed of, to the Minister concerned, and the Minister has been given the power to send for any case in the list and pass such orders thereon as he may thinkfit in accordance with the business rules. Paragraph 3 reads as follows :--

'3. The Secretary shall submit a weekly list of cases which he has disposed of to the Minister concerned, who may send for any case in the list and pass such orders thereon as he may think fit in accordance with these rules'.

It was said that the instructions contained in Paragraph 3 created a situation in which the Special Secretary could consider the objections to a Scheme and the Minister could pass an order approving or modifying the Scheme even contrary to the order of the Special Secretary, and thus there would be a divided responsibility destructive of the concept of judicial hearing under Section 68-D of the Act as explained by the Supreme Court in the case of G. Nageswara Rao, 1959 Supp (1) SCR 319: (AIR 1959 SC 308) (supra). This contention must be rejected. In our judgment, in view of the provisions of Section 68-D (3) of the Act, namely, that the Scheme as approved or modified under Sub-section (2) of Section 68-D shall be published in the Gazette and shall thereupon become final, the Minister cannot claim any power under Paragraph 3 of the Supplementary Instructions to pass any order under Section 68-D (2) in a case in which the Special Secretary, in exercise of the powers conferred on him, has considered the objections to the Scheme and approved or modified it.

It will be noticed that Sub-section (3) of Section 68-D of the Act says 'The Scheme as approved or modified under Sub-section (2)'. This means the Scheme as approved or modified under Sub-section (2) by the Special Secretary in exercise of the powers conferred on him. It is that Scheme which alone can be published under Sub-section (3) of Section 68-D and that becomes final. Paragraph 3 of the Supplementary Instructions cannot be construed so as to give power to the Minister to pass an order in relation to a Scheme which has been approved or modified by the Special Secretary in exercise of the powers conferred on him under the Rules of Business. If that were done, it would amount to overriding the statutory provision contained in Sub-section (3) of Section 68-D in regard to the publication of a Scheme as approved or modified by the duly authorised officer after considering the objections to the Scheme. It is well settled that in making the Rules of Business the Governor cannot override the statutory provisions relating to a particular function or business. (See Rukhmanibai v. Mahendra-lal, ILR (1949) Nag 182: (AIR 1949 Nag 174), (FB) ). That apart, in the cases before us the Minister concerned did not pass any order under Section 68-D of the Act purporting to exercise the power given to him by Paragraph 3 of the Supplementary Instructions. The argument addressed by the learned Counsel is really against an imaginary and possible exercise by the Minister concerned of the power given under Paragraph 3 of the Supplementary Instructions where one and the same person has been duly authorised to dispose of objections to a Scheme published under Section 68-C of the Act and to approve or modify it. The power under Paragraph 3 of the Supplementary Instructions does not in any way vitiate the hearing of objections by the Special Secretary to the Schemes before us and the approval or modification by him of the Schemes after considering the objections.

20. Shri Hajarnavis then questioned the power of the Special Secretary to to deal with the Schemes bearing Nos. 13 and 14 as published on 5th February 1965. It was said that the order of the Chief Minister made on 12th July 1963 under the Rules of Business authorising Shri Shukla to dispose of objections received to the Schemes specified in the Schedule to that order did not give him the power to deal with the Schemes bearing Nos. 13 & 14 as published on 5th February 1965; and that in fact the Schemes bearing the same numbers, whether as published on 7th February 1964 or as published later on 5th February 1965, were not in existence on 12th July 1963. Learned counsel referred to Rr. 2, 3 and 4 of the Business Allocation Rules, and said that under those rules the business of the Government is transacted in the Secretariate Departments enumerated in Rule 2; and that according to Rule 3, the business of the Government is classified and distributed between the Secretariat Departments in the manner specified in the Schedule to the Rules, and as provided by Rule 4 the Governor allots among some of the Ministers the business of the Government by assigning each department or any item of business in a department of the Secretariat to the charge of a Minister. It was argued that the words 'item of business' connoted a specific matter assigned to the charge of a Minister; and that thus unless the matter of considering objections to a specific Scheme and approving or modifying it after consideration of the objections was first assigned to a Minister by the Governor under Rule 4 of the Business Allocation Rules, the power to receive objections to the Scheme, considering them and then approving or modifying the Scheme could not be delegated to the Special Secretary under the Rules of Business.

21. We are unable to accede to this contention. As is evident from the Business Allocation Rules and the Schedule to it, the assignment of business in a Secretariat Department to the charge of aMinister is with reference to the subjects enumerated in the three Lists of the Seventh Schedule to the Constitution. The executive power of the State extends to the matters with respect to which the State Legislature has power to make laws as is provided by Article 162 of the Constitution. The allocation of business is not with reference to particular matters falling under the subjects mentioned in the Schedule to the Business Allocation Rules. As pointed out by the Supreme Court in AIR 1960 SC 1073 and Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 SC 82, Chapter IV-A of the Motor Vehicles Act, 1939, could be competently enacted by Parliament under Entry 21 read with Entry 35 of the Concurrent List of the Constitution, Entry 21 of the Concurrent List appears as Item 24 of the Commerce and Industry Department, and Entry 35 of the List appears as Item 14 of the Home Department, in the Business Allocation Rules. Those items are wide enough to include the matter falling under Section 68-D of the Act. There can, therefore, be a valid delegation under Paragraph 2 of the Supplementary Instructions issued under Rule 13 of the Rules of Business, without reference to particular Schemes, of the power conferred on the State Government under Section 68-D (2) of the Act. It is sufficient if the Special Secretary is authorised in general terms to receive and consider objections to the Schemes that may be notified by the Corporation and to approve or modify them after considering the objections. The order of the Chief Minister dated the 12th July 1963 issued under the Rules of Business authorised Shri Shukla to dispose of objections received not only to the Schemes specified in the Schedule to that order, but also the objections that might be received to 'such other future schemes as may be notified by the Madhya Pradesh State Road Transport Corporation'. Therefore even if the Schemes bearing Nos. 13 and 14, as first published on 7th February 1964 or as later published on 5th February 1965, were not in existence on 12th July 1963 when the Chief Minister made the order that he did, the Special Secretary did get under that order the power to entertain objections to the afore-stated Schemes which were published after 12th July 1963.

22. That it was not necessary to make an order of allocation with reference to any specific existing Scheme before the power to consider objections to the Scheme and to approve or modify it thereafter could be delegated to the Special Secretary, becomes clear by the decision of the Supreme Court in Godavari v. State of Maharashtra, AIR 1964 SC 1128. In that case, Godavari and other persons challenged their detention under Rule 30 of the Defence of India Rules, 1962. One of the arguments, which was advanced on their behalf in the Supreme Court, was that there was no order of allocation made by the Governor under Article 166 of the Constitution after the passing of the Defence of India Ordinance and the Rules framed thereunder and, therefore, the allocation of business by the Rules of Business which were enforced by an order of the Governor dated the 1st May 1960 could not be of any effect in allocating the subject of preventive detention under the Defence of India Ordinance, Act and the Rules to the Minister and the Governor should have passed the order of detention himself. While negativing this contention, the Supreme Court observed -

'Allocation of Business under Article 166(3) of the Constitution is not made with reference to particular laws which may be in force at the time the allocation is made; it is made with reference to the three lists of the Seventh Schedule to the Constitution, for the executive power of the Centre and the State together extends to matters with respect to which Parliament and the Legislature of a State may make laws. Therefore, when allocation of business is made with reference to the three Lists in the Seventh Schedule and thus the allocation in the Rules of Business provides for all contingencies which may arise for the exercise of the executive power. Such allocation may be made even in advance of legislation made by Parliament to be available whenever Parliament makes legislation conferring power on a State Government with respect to matters in List I of the Seventh Schedule. It was therefore in our opinion not necessary that there should have been an allocation made by the Governor under Article 166(3) of the power to detain under the Defence of India Ordinance, Act and Rules after they were passed; it will be enough if the allocation of the subject to which the Defence of India Ordinance, Act and Rules refer has been made with reference to the three Lists in the Seventh Schedule and if such allocation already, exists, it may be taken advantage of if and when laws are passed. Preventive detention is provided for in List I item 9, for reasons connected with defence, foreign affairs and the security of India, and in Item 3 of List III for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community. The allocation of business made under Article 166 is in pursuance of these entries in the three Lists in the Seventh Schedule and would be available to be used wheneverany law relating to these entries is made and power is conferred on the State Government to act under that law. The contention of the appellants that fresh allocation should have been made under Article 166(3) by the Governor after the passing of the Defence of India Ordinance, Act and Rules must therefore fail.'

These observations clearly support the view that it is not necessary for the Governor to allocate to the Minister the matter falling under Section 68-D of the Act with reference to particular existing Scheme or Schemes; it is enough if the al-location of the subject, to which consideration of objections to Schemes and their . approval or modification thereafter refer, has been made in accordance with the Business Allocation Rules; when such allocation already exists, it may be taken advantage of for delegating according to the Rules of Business the power of the State Government to consider objections to Schemes if and when they are published and for approving or modifying the Schemes after considering the objections. The contention, that the Special Secretary had no power to deal with the Schemes bearing numbers 13 and 14 as published on 5th February 1965 must, therefore, fail.

23. The next contention advanced by Shri Hajarnavis was that the resolution of the Corporation propounding the later Scheme No. 13 and authorising its publication was not validly passed inasmuch as notice of the meeting of the Corporation at which the resolution was passed was not sent to the Deputy Chief Accounts Officer, Central Railways, Bombay, who was one of the members of the Corporation as a nominee of the Central Government; that at that meeting, the Deputy Chief Accounts Officer, Secun-derabad, and not the Deputy Chief Accounts Officer, Bombay, was present and that, consequently, even if the resolution was passed unanimously at the meeting, it would be invalid. Learned counsel relied on Radha Kishan v. Municipal Committee, Khandwa, 61 Ind App. 1251: AIR 1934 PC 62. This contention is without any merit. It must first be noted that this precise objection has not been taken in any of the petitions. The ground taken is that the two representatives were not properly and legally appointed as members of trie Corporation.

A similar objection was raised in the case of Capital Multi Purpose Co-operative Society, M. P. No. 351 of 1965 D/- 15-9-1966 (MP), and was rejected by this Court. If the objection put forward before us had been specifically raised in any of the petitions, then the respondent-Corporation would have in its return averred the necessary facts. Even on merits the contention cannot be accepted in view of the facts stated in the order of the Special Secretary approving the Scheme impugned in Miscellaneous Petition No. 338 of 1966. The Deputy Chief Accounts Officer, Bombay, was appointed ex officio member of the Corporation. A notice of the Corporation's meeting, at which the resolution propounding the Scheme and authorising its publication was passed, was sent to the Deputy Chief Accounts Officer, Bombay. At that time, the officer, who was holding the post of the Deputy Chief Accounts Officer, Bombay, was on leave. He had proceeded on a long leave, and the Deputy Chief Accounts Officer, Secun-derabad, Shri Kannan, was also functioning as the Deputy Chief Accounts Officer, Bombay. The notice of the meeting was, therefore, sent to Shri Kannan. The petitioners have not placed before us any material to show that Shri Kannan was such a locum tenens that under the orders of the railway authorities authorising him to function as the Deputy Chief Accounts Officer, Bombay, he could not be regarded as holding the post of Deputy Chief Accounts Officer, Bombay, and was, therefore, not entitled to attend the meeting of the Corporation in his ex officio capacity.

On the facts stated by the Special Secretary, it must be held that Shri Kannan was at the material time holding the post of Deputy Chief Accounts Officer, Bombay, and was competent to attend the meeting of the Corporation at which the resolution propounding the Scheme and authorising its publication was passed. That being so, the contention of the learned counsel that notice of the meeting did not go to one of the members of the Corporation and consequently the resolution passed at the meeting was invalid cannot be accepted.

24. In some of the petitions, including Misc. Petitions Nos. 338 and 368 of 1966, the validity of the Schemes has been challenged on the ground that the Schemes were not the product of any independent opinion formed by the Corporation that it was necessary in the public interest that the services specified in the Schemes should be run and operated by the Corporation; that under Section 68-C of the Act the Corporation had to form the opinion indicated in Section 68-C; that the Schemes were promoted by Shri Dwarka Prasad Mishra, the Chief Minister at the material times, who acted mala fide in directing the Corporation to frame the impugned Schemes; and that this he did in order to strike at his political opponents. In M. P. No. 338 of 1966 the validity of Scheme No. 13 has been challenged; in M. P. No. 368 of 1966 the impugned Scheme is Scheme No. 14. During the course of arguments on this point, Shri Phadke and ShriHajarnavis, leanred counsel appearing forthe petitioners in the said two petitions, elaborated at length the averments made in the petitions to show that the Schemes really did not originate from the Corporation, but that they were formulated by the Corporation under the direction of the Chief Minister. Their arguments were adopted by learned counsel appearing for petitioners in the other petitions.

25. The petitioners say that on the advice of the State Government given in 11954 motor operators in Chhatisgarh region decided to form viable units. In 1955 the then Chief Minister, late Pandit Ravi Shanker Shukla, gave an assurance that viable units would not be touched in any scheme of 'nationalisation' by the State undertaking. The Corporation came into existence in 1962 and at a meeting held on 7th February 1963 the question of nationalisation of road transport was considered by the Corporation. It thought that the total funds provided in the State's Third Five Year Plan for the nationalisation of road transport and its own savings would not be sufficient for completely taking over the services even in the area which was at that time being operated by the Corporation and that, therefore, nationalisation of road transport services should be undertaken in stages according to a phased programme beginning from the area where the cost of nationalisation would be the least. In the first phase the Corporation proposed to cover the routes where the Corporation had already monopoly or virtual monopoly as also the routes on which the Corporation was running more buses than private operators. The Corporation thus framed twelve Schemes, namely, Nos. 1 to 12, and on 25th April 1963 passed a resolution approving the order of implementation of these twelve Schemes.

26. It is then averred that Shri Dwarka Prasad Mishra became the Chief Minister on 3rd October 1963 and soon thereafter he made a statement at Bho-pal that the first thing that he would do would be to nationalise road transport services within three years. On 7th October 1963, a question was asked in the M. P. Legislative Assembly by a member about the time from which 'nationalisation of road transport services would be taken up in the State.' In reply to this question, the then Minister for Industries Shri Narsingh Rao Dixit said that no definite time could be indicated as 'finance were not sufficient to meet the requirements.' Shri Mishra intervening said that he would be in a position to give definite information within three months. He further told the House that the Issuance of new permits would be stopped within a week. On 6th February 1964, in reply to a question put inthe Assembly, the Chief Minister slated that the State Government was considering a three year programme for nationalisation of road transport services, and placed before the House a list of twenty-eight routes which the Corporation had proposed to nationalise by the end of 1964. The petitioners point out that the Corporation had not in fact passed any resolution before 6th February 1964 for nationalising the road transport services within three years, more so regarding the routes which were stated by the Chief Minister to have been proposed by it for nationalisation by the end of 1964'.

27. The petitioners then proceed to say that on 7th February 1964, the General Manager of the Corporation, without any authority and without there being any resolution passed by the Corporation in that behalf, published two schemes bearing Nos. 13 and 14. It is suggested that these schemes were published by the General Manager at the instance of the Chief Minister for political reasons. About that time, a non-official resolution was moved in the Assembly recommending to the Government that the process of nationalisation of road transport services in the State should start from Chhatisgarh division and end in Gwalior Division. This resolution was withdrawn on 13th March 1964 on a statement being made in the House on behalf of the State Government that two routes in Chhatisgarh area had been included in the scheme Nos. 13 and 14 notified under Section 68-C of the Act. After pointing out that schemes Nos. 13 and 14 as published on 7th February 1964, were rejected by the Special Secretary as it was conceded on behalf of the Corporation that the schemes were published without its previous approval, the petitioners proceed to say that-

'The corporation has not passed any resolution altering its phased programme of nationalisation. However on 8th May 1964, the Corporation is stated to have decided to publish certain schemes bearing Nos. 15 to 27 and subsequently on 9-10-64, the Corporation decided to publish scheme No. 28 and later on, the Corporation decided on 8-1-1965 to publish schemes Nos. 29 to 62 and on 1st February 1965 the Corporation is stated to have passed a resolution concerning schemes Nos. 13 and 14 thereinafter referred to as the new schemes. As a matter of fact, these new schemes Nos. 13 and 14 should have been numbered 63 and 64, as they were approved last.'

28. In none of the petitions is there any averment indicating how the petitioner concerned was politically placed in relation to Shri Dwarka Prasad Mishra, and showing what it did or omitted to dofor opposing Shri Mishra in the political field. It has no doubt been said that the statement which Shri Mishra made immediately after assuming office, namely, that the first thing that he would do would be to nationalise road transport services, was made for adversely affecting the Raipur operators, and in this connection a reference has been made in the petitions to the affidavits filed by some of the petitioners before the Special Secretary. In the affidavit filed before the Special Secretary by the petitioner in Misc. Petition No. 368 of 1966, the rivalry alleged between Shri Mishra and the said petitioner was shown thus-

'There are two rival groups within the Congress Organisation commonly known as (1) Takhatmal-Deshlahra Group, and (2) Katiu Group. During the last General Elections, the friction between these two groups became very prominent and as a result of that Shri Kailash Nath Katju who could not become the Chief Minister on the support of the Takhatmal-Deshlahra Group was seeking an opportunity to capture office. In the meanwhile Shri Dwarka Prasad Mishra succeeded in securing Congress ticket for the bye-election which was held in the Year 1963 in Kasdol constituency in Raipur district. In Shri Dwarka Prasad Mishra, the members of the anti-Takhat-mal-Deshlahra Group found a strong leader. At this time 'Kamraj Plan' was brought into force by the Congress Organisation and Shr! B. R. Mandloi had to resign the office of the Chief Minister of Madhya Pradesh. Shri Dwarka Prasad Mishra with the help of Dr. Katju's supporters succeeded in becoming the Chief Minister, and took office on 3-10-1963.

The share-holders, the Directors and the Managing Director of Anand Transport Co. Private Ltd., Raipur, are well known as strong supporters of Takhat-mal-Deshlahra-Mandloi Group. Some of them are active Congress members.

'No sooner did Shri Dwarka Prasad Mishra become the Chief Minister of Madhya Pradesh after defeating his rival Shri Takhatmal in the election of party leader, he made a press statement at Bhopal that the first thing he would do is to nationalise the Road Transport Industry. The above said statement made by Shri D, P. Mishra was meant to hit immediately the Raipur Transport Operators including Anand Transport Co. Private Ltd., Raipur. This was mainly done to victimise his (Chief Miniater's) political opponents. There were some press criticisms wherein it was stated that a person should not use his office for taking political revenge..... '

29. The petitioners also state that on 2nd September, 1963 the Minister ofShipping, Government of India, informed the Rajya Sabha that the National Development Council had advised the State Government to curtail the expansion programme of nationalisation of road transport services to the minimum and defer the same wherever possible because it was desirable that the productive capacity of the automobile industry should be conserved for the more important uses including the military needs. These are all the averments on which the contention of the petitioners that the schemes were prepared and published at the direction of the Chief Minister and he thus changed the entire programme of nationalisation, is based.

30. The reply of the Corporation to these allegations, as stated in its return, is that the operation of transport services by viable units before the amendment effected in 1956 in the Motor Vehicles Act, introducing Chapter IV-A was altogether irrelevant; that when the Corporation first decided to take over routes in the areas in which it was already operating, it was clearly envisaged that the operation would be extended to trunk routes of the National Highways; and that towards the end of 1962 itself the Department standing Committee of planing and Development Department felt the need of nationalisation of routes in the region in which the Corporation was not operating at ail. and early in 1963 complaints had been received about the unsatisfactory running of transport services by the viable units of Chhatisgarh. It is stated that after assuming office of Chief Minister Shri Mishra made a statement at a Press Conference that the Government would support the policy of nationalisation of road transport and the financial and other implications involved in the process would be examined. The statements said to have been made by Shri Mishra in the Assembly from time to time have been admitted by the Corporation. As regards the programme of nationalisation and the examination by the Government of the financial aspect of the nationalisation plan, the reply of the Corporation is-

'Ultimate nationalisation of passenger Road Transport has been the policy behind the formation of the Corporation. Its achievement necessarily depended on the ways and means and availability of other resources. The Chairman and the General Manager of the Corporation, therefore, asked the deponent to prepare a chased programme so as to forward to the Government the estimates for allocation of finances. The Corporation had in publishing its first batch of schemes, tentatively decided to take over the National Highways after establishing on the routes on which it held monopoly --absolute or virtual. In accordance withthat policy the deponent framed a three-phased plan with the assistance of the office with the priority in first phase for nationalisation of National Highways, two routes in Bilaspur region were included in the first phase because in this region there was no National Highway and the region had to be developed. Nationalisation of the State Highway was the second phase and the third phase embraced the remaining routes. 'The Deponent states that the three-phased plan was produced to explore the financial implications. The office of the Corporation framed the plan on its own. This was not a command performance and, not even a hint been given to the deponent to indicate priorities. The deponent submitted the proposed plan to the General Manager of the Corporation and the Chairman, who satisfied themselves that it contained a correct approach. The plan was submitted to the Chairman by the General Manager on 17-12-1963 and the plan was ultimately submitted to the Government on 13-1-1964.

The Cabinet approved of the financial aspect of the plan on 31-1-1964 .... the question of initiating the scheme under Chapter IV-A could arise only after the financial assistance was assured. For exploring the extent of such financial assistance, no formal resolution of the Corporation was required. This was merely spade work. Proposal to the Government for financial allocations was properly initiated by the Chairman of the Corporation. This step was exploratory, on which depended subsequent appropriate action'.

It is denied by the Corporation that the Chief Minister had at any time directed it to initiate and publish any scheme. The Corporation says that the schemes were published in pursuance of public demand; and that as early as August 1963 the cost of nationalisation of routes in the entire Chhatisgarh area was worked out but the schemes could be implemented when the finances were made available.

31. In refutation of the allegations made against him, Shri Dwarka Prasad Mishra has filed an affidavit in which he has averred that on 1st October 1963, that Is, the next day after assuming charge as Chief Minister, he made a policy statement that the Government would pursue the policy of nationalisation of passenger road transport. He has denied that he ever said that 'first thing he would do was to nationalise the Road Transport Industry'. The suggestion that the statement made by rum was designed to adversely affect the operators of Raipur area has also been denied. In his affidavit, he has further said-

'The deponent states that the Corporation had originally prepared SchemeNos. 1 to 12 and, subsequently, a three-phased programme was prepared by the Corporation. This three-phased programme was prepared entirely by the Corporation and there was no direction given by the deponent as the Chief Minister or otherwise. The deponent denies the allegation 'the Chief Minister thus changed the entire programme and prevailed upon the General Manager of the Corporation to notify the scheme in relation to Chhatisgarh operators first. The deponent states that he had nothing to do with the formulation of the programme and its priorities. The deponent is also not responsible for any act or omission on the part of the Corporation with regard to observing essential formalities in respect of the preparation and publication of the scheme.'

The allegation that schemes Nos. 13 and 14 were published on 7th February 1964 by the General Manager of the Corporation at his instance for political reasons has been denied by Shri Mishra by saying that-

'the allegations are, apart from being vague and lacking in particulars, false and baseless. The deponent states that neither did he ever express any desire nor did he ever dictate to the Madhya Pradesh State Road Transport Corporation, its Chairman or General Manager or any officer of the Corporation to promulgate the impugned scheme or any other scheme. The decision to promulgate the impugned scheme was not that of the deponent and the allegation of the petitioner in this behalf is wholly untrue.' Shri Mishra has filed copies of the proceedings of the Assembly containing the statements made by him from time to time in the Assembly on the subject of nationalisation, adding that his attitude 'had throughout been that the framing and promulgation of schemes was the exclusive function of the Corporation with which the Government was not concerned'. The concluding paragraph of Shri Mishra's affidavit runs thus-

'In 1962, the Standing Committee of the Planning and Development Department of the State Government recommended nationalisation of some routes In the Chhatisgarh area where the Corporation was not till then operating. On 30-8-1963, the Corporation expressed Itself in favour of nationalisation in Chhatisgarh area. All this happened prior to the deponent taking over as Chief Minister of Madhya Pradesh. After his assumption of office as Chief Minister the deponent had stated In the Vidhan Sabha and elsewhere the policy of the Government vis-a-vis nationalisation. It Is absolutely false to say that the deponent made any statement at any time, which even remotely indicated anydirection to the Corporation or to any one else in respect of any particular scheme or schemes in any region or area'.

32. Shri Noronha, who was the Chairman of the Corporation from 1st June 1962 to 21st February 1964, has also filed an affidavit denying the allegation that the schemes were formulated on the direction of Shri Dwarka Prasad Mishra, as also the suggestion that he was influenced by Shri Mishra in introducing the schemes. The material paragraphs of his affidavit are as under :--

'That on or about 11-7-1962, the Commerce and Industries Department compared notes with the deponent in regard to the programme of the Corporation for exclusive operation on various routes and appropriate amendment of the Motor Vehicles Act with regard to Nationalisation of Passenger Services in Madhya Pradesh.

That on 14-12-1962, the departmental standing committee of the Planning and Development Department suggested Nationalisation of some routes in the Chhatisgarh region and to begin with at least one main route within the area of every Commissioner's division for exclusive operation.

That complete Nationalisation of Passenger Road Transport in Madhya Pradesh has been the policy of the Corporation. To fulfil this object, the deponent asked Shri Birbal the then General Manager of the Corporation to prepare a comprehensive phased programme for submission to the Government with the estimates for allocation of finances. Accordingly a three-phased plan was prepared with the following priorities :--

(i) In the first phase all National Highways in the Madhya Pradesh and two routes in Bilaspur region were included as there was no National Highway in that region and the region had to be covered for development.

(ii) In the second phase proposed National-Highway not covered in the first phase and State Highways were included for exclusive operation and

(iii) The third phase embraced theremaining routes except kutcha routes.

*****

'That the deponent states that the financial aspect of the plan was approved by the Cabinet on 31-1-1964.

That when the financial implications were approved by the Government schemes Nos. 13 and 14 were prepared under my instructions. These schemes were sent to the press on 4-2-1964 andwere published on 7-2-1964.

*****

That schemes Nos. 13 and 14 were framed for exclusive operation inChhatisgarh region as the existing undertakings in the Chhatisgarh region had given cause for a public demand for nationalisation. It is denied that these schemes were published only after Hon'ble the then Chief Minister made the statement on the floor of the House on 6-2-1964. It is asserted that the priorities were not determined in any manner at the instance of the Chief Minister. These scheme were published because there was a public demand requiring the Corporation to enter into the Chhatisgarh region. This public demand was ventilated in the public press and representation.'

Shri Noronha has also said that there was no alteration of the phased programme in the sense of deviation; that it was initially envisaged that after establishing nationalisation on the routes on which the Corporation was already operating in sufficient numbers, the main trunk routes would be taken in hand; and that thus the. three-phased plan, which was approved by the Corporation on 3rd April 1964, contemplated taking over of the National Highways for nationalisation.

33. Learned counsel for the petitioners endeavoured to show to us that the impugned schemes were not in reality the schemes formulated by the Corporation after exercising its own judgment, but were prepared by the Corporation at the instance of the Chief Minister Shri Mishra, who was personally hostile to the petitioners by reason of certain political events or circumstances and that the schemes were prompted by the desire on the part of the Chief Minister to wreak his vengeance on the petitioners by first stressing the points that the programme of nationalisation, which the Corporation approved on 7th February. 1963, namely, that of operating its services where it had already a monopoly and where the number of Corporation's buses running was more than those run by private operators, was altered soon after Shri Mishra became the Chief Minister on 1st October 1963; that in October 1963 itself, after assuming office, Shri Mishra made a statement that the first thing that he would do was to nationalise the road transport industry; and that it was on the next day he made a statement in the Assembly on 6th February 1964 that the Government was considering a programme for nationalising road transport services that schemes Nos. 13 and 14 were published on 7th February 1964 by the General Manager of the Corporation even when no resolution had been passed by the Corporation in regard to those schemes.

Realising that scheme Nos. 13 and 14, as published on 7th February 1964, wererejected by the Special Secretary on the ground that they were not the schemes ex concessis of the Corporation and the impugned schemes Nos. 13 and 14 were no doubt those which were published on 5th February 1965, learned counsel then submitted that the very fact that the two schemes were published on 7th February 1964 without any resolution of the Corporation and a day after the Chief Minister made a statement in the Assembly about the nationalisation pro-grame, indicated that the Corporation was entirely under the influence of the Chief Minister and that in formulating the impugned schemes subsequently it did not exercise its own independent judgment.

It was said that the statement of the Chief Minister in the Assembly on 7th October 1963 that the issue of new permits would be stopped within a week, his reply on 6th February 1964 to a question in the Assembly that the Government was considering a three-year programme to nationalise road transport services, the placing by him before the House on 6th February 1964 of a list of twenty-eight routes proposed to be nationalised by the end of 1964, when before that date the Corporation had not in fact passed any resolution approving the twenty-eight schemes, and the fact that all those schemes were initiated despite the advice of the National Development Council to the State Governments to curtail the expansion programme of nationalisation of road transport services to the minimum, all indicated that in the formulation of the schemes Shri Mishra dominated and that the schemes were really the result of his improper motive to ruin his political opponents.

Learned counsel drew our attention to the articles appearing in the newspaper Pravada dated the 26th February 1964. Naya Toofan dated the 18th April 1964 and Dainik Nava-Bharat, dated the 4th May 1964, and said that in those articles the policy of nationalisation of routes in Chhatisgarh was criticised and commented upon with an observation to the effect that a person should not use his high office for taking political revenge. A subsidiary criticism made by learned counsel for supporting the plea of mala fides was that Shri Mishra did not file any affidavit before the Special Secretary; that in the present cases his affidavits were filed on the eve of the hearing of these petitions and not earlier; and that though Shri Noronha was the Chairman of the Corporation at the material time and had personal knowledge of the formulation of the schemes, he did not verify the averments contained in his affidavit as true to his personal knowledge, and Shri Birbal, who was the General Manager of the Corporation at the material time, had not filed any affidavit.

34. The legal position in relation to which the allegations of the kind made in the cases before us have to be considered has been explained by the Supreme Court in G. S. Rowjee v. State of Andhra Pradesh, AIR 1964 SC 962. It is necessary to refer to it before examining the tenability of the arguments advanced by learned counsel. In Rowjee's case (supra) also, the validity of certain schemes published under Section 68-C of the Motor Vehicles Act was challenged on the ground that the schemes did not in reality reflect the opinion of the Andhra Pradesh State Eoad Transport Corporation but that they owed their origin to the direction of the Chief Minister of Andhra Pradesh who acted mala fide in directing the Corporation to frame the schemes for certain areas. The Supreme Court said-

'To begin with, the schemes now impugned have been formulated by the Corporation which is an independent semi-autonomous body brought into existence by the State Government by acting under the Road Transport Corporation Act, 1950. Under Section 68-C of the Motor Vehicles Act it is the Corporation which is the State Transport undertaking which has to form the opinion whether 'for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service it is necessary in the public interest whether the services should be run and operated by the State Transport undertaking'. Secondly, it is the Corporation that has to be satisfied that such services should in public interests be provided 'for any area or route'. In the present case, it is undoubtedly the Corporation that has published the schemes under Section 68-C in which these two matters are stated to have been considered and decided upon by the Corporation itself. It was not disputed by the appellants that whatever be the inclinations, desires or motives of the Chief Minister, if the Corporation had by an independent consideration of the situation decided on the formulation of the impugned schemes their validity could not be successfully impugned merely because the Schemes satisfied the alleged grudge which the Chief Minister bore to the affected operators.'

These observations make it clear that in order to succeed in their plea of mala fides, it is not sufficient for the petitioners merely to show that the Chief Minister had bias and ill-will against them; they must also show that the Corporation was also similarly motivated; and unless the petitioners were able to do that, bias or ill-will on the part of the Chief Minister would be irrelevant The bias on the part of the Corporation must be 'real'. The petitioners must show that in formulating the Schemes the Corporation so conducted itself that a high probability arises of a bias inconsistent with the fair performance of its duties with the result that in the mind of reasonable persons there is a feeling that the schemes formulated are not in reality the schemes of the Corporation.

35. The three questions that, therefore, arise for consideration are first, whether Shri Mishra, the Chief Minister, bore personal ill-will against the petitioners for political reasons; secondly whether prompted by a motive of revenge or by any other reason he directed the corporation to formulate the impugned schemes; and thirdly whether the impugned schemes were formulated by the Corporation on its own opinion or whether the Corporation formulated the schemes in order to give effect to the wishes of the Chief Minister. Now, taking the first question, as already stated, in none of the petitions is there any averment indicating how and why the petitioner concerned incurred the alleged wrath of Shri Mishra. On this point the petitioners remained content just by making a reference in their petitions to the affidavits filed by some of the petitioners before the Special Secretary. The relevant extract from the affidavit has already been reproduced. It is clear from that extract that it merely gives the alignment of some political groups and of some persons in the political field. A general statement has been made in the affidavit that the share-holders and the directors of the operating firm or company are well known as strong supporters of Takhatmal-Deshlahra-Mandloi group and some of them are active Congress members.

But in none of the petitions is there any disclosure of any partner or director or share-holder of the company, operator or firm concerned or any individual operator with a narration of his status or importance or placing in any political party or in the political field. No operator has stated the events and happenings between the Chief Minister and the person or persons controlling the services run by the petitioner on account of which Shri Mishra was said to have become antagonistic to it. Had there been such events and circumstances the petitioner would not have omitted to aver them, especially when the affidavits which they filed before the Special Secretary were after the decision of the Supreme Court in Rowjee's case, AIR 1964 SC 962 (supra) was pronounced and when the objections raised before us against the impugned schemes having been formulated by the Corporation at the behest ofthe Chief Minister were modelled on the lines of the objections raised in Rowjee's case, AIR 1964 SC 962.

In Rowjee's case, AIR 1964 SC 962 there was a detailed narration of the circumstances and the Political placing of the petitioner in that case and of his activities to show that on account of those circumstances, events and activities, the feelings of the Chief Minister of Andhra Pradesh against the operators in Kurnool district were enraged. Such particulars indicating that Shri Mishra was inimical-ly disposed towards the petitioners are lacking in the cases before us.

36. The newspaper articles to which our attention was invited merely expressed the views of the writers. They did not embody any account of an interview or a discussion which the writer might have had with Shri Mishra. That being so, the suggestion in two of those articles that the nationalisation of routes in Chhatisgarh was being proposed for political reasons and that political power was being abused in the formulation of Schemes cannot be regarded as any proof of ill-will on the part of Shri Mishra against the petitioners for political reasons. Those two articles seem to be tendentious and written with a purpose to help the petitioners. Indeed, in one of the articles, namely that appearing in Pravada dated 26th February 1964, the writer made a reference to the decision of the Supreme Court in Row.iee's case. AIR 1964 SC 962 (supra) and proceeded to say that in Rowjee's case, AIR 1964 SC 962 the Supreme Court has remarked that the Chief Minister of Andhra Pradesh has embarked upon nationalisation of routes to satisfy his grudge against the operators and that the Chhatisgarh Operators were also thinking that Shri Mishra was acting similarly and proposing nationalisation of transport services in Chhatisgarh. The news item appearing in Dainik Nava-Bharat dated 4th May 1964 only said that at a Press-Conference Shri Mishra said that he was firm in his decision on the question of nationalisation of transport services. On this material, it is impossible to hold that the petitioners were political opponents of Shri Mishra and that he wanted to cause loss to the petitioners or ruin them by an early introduction of the impugned schemes.

37. Coming to the second question, namely, whether Shri Mishra directed the Corporation to formulate the impugned schemes, the circumstances on which reliance has been placed by the petitioners to show this have been stated earlier in paragraphs 25, 26, 27 and 33. It is not necessary to repeat those circumstances here. In our judgment, those circumstances, considered singly or cumulatively, do not at all warrant theinference that the impugned schemes owed their origin to the direction of ShriMishra.

The assurance said to have given by the late Pandit Ravi Shankar Shukla that viable units would not be touched in any scheme of nationalisation by the State Undertaking was clearly not. if we may say so, a testamentary mandate binding on the successor Chief Ministers. A viable unit engaged in transport operation under Ch. IV of the Act cannot equate itself with a State Transport Undertaking under Chapter IV-A. The Corporation has been constituted under the Road Transport Corporations Act, 1950, for the purpose of providing an efficient, adequate, economical and properly co-ordinated a road transport service. The question whether in fulfilment of this object the Corporation should run its services on some routes and in some areas or on all routes and in all areas depends upon a variety of circumstances including finance. The Corporation no doubt first decided to undertake nationalisation of road transport services in stages according to a phased programme and proposed to cover routes where it had monopoly or virtual monopoly as also the routes on which it was running more buses than private operators.

This decision was taken by the Corporation bearing in mind the prospect of the funds that would be available for the nationalisation of road transport services If later on with the change of Government the Corporation found that the Government was also keen that nationalisation of road transport services should be effected early and the Government was prepared to find the necessary money for it and that there was also a public demand for the running of Corporation's services on many more routes than originally proposed by the Corporation, and an alteration in the nationalisation programme was made by the Corporation by propounding some more schemes, then it will be altogether unreasonable to see anything sinister in the alteration. The Corporation never changed its policy of ultimate nationalisation of all passenger road transport services.

38. The statements made by Shri Mishra, after becoming the Chief Minister, in the Assembly and outside, to the effect that the Government- had decid-ed to nationalise road transport services within three years, were merely indicative of the Government's policy (see Birajmohan Das Gupta v. State of Orissa 1962 Supp (1) SCR 681 = (A1R 1967 SC 158). They cannot be regarded as directives to the Corporation by the Chief Minister for the framing of any particular scheme or schemes. If this was the policy of the Government, then there was nothing odd in issuing orders for stoppage of the issuance of fresh permits. If that had not been done, it would have only added to the cost of nationalisation of transport services by payment of compensation to the displaced operators who might have obtained fresh permits in the interregnum. The stoppage of the issue of fresh permits cannot in any sense be regarded as a step taken by Shri Mishra for forcing the Corporation to initiate certain schemes according to his wishes.

Again, the advice given by the National Development Council that further nationalisation of transport services should be deferred did not in anyway restrict the freedom of the State Government to assist in the programme of nationalisation of road transport services consistent with its resources. The suggestion that as the Corporation altered the programme of nationalisation despite the advice tendered by the National Development Council, the alteration must have been at the instance of the Chief Minister Shri Mishra is, therefore, untenable. The untenabi-lity of the suggestion becomes obvious on a perusal of the proceedings of the Assembly filed by Shri Mishra with his affidavit. A perusal of those proceedings shows that several members of the Assembly were anxious that the nationalisation of road transport services should be undertaken at a very early date.

In fact, a resolution for taking over routes in Chhatisgarh region was moved in the House but later on withdrawn on the Government's assurance that it would be done. The members were also under the impression that it was the Government who was responsible for formulating schemes. Shri Mishra corrected this wrong impression of the members by telling them that under the Motor Vehicles Act it was the responsibility of the Corporation to formulate the schemes and to decide which route or routes should be taken over, and not of the Government.

39. It is no doubt true that schemes Nos. 13 and 14 were first published on 7th February 1964. a day after Shri Mishra made a statement in the Assembly about the policy in the matter of nationalisation of road transport services, and till the date of publication no resolution had been passed by the Corporation in regard to those schemes. The publication of those schemes, without there being any resolution of the Corporation in regard to them. was without doubt an altogether illegal and unwarranted act on the part of the General Manager of the Corporation. In his affidavit, Shri Mishra said that he had no hand in the publication of the said two schemes and that he was not responsible in any way for any act or omission on the part of the Corporation with regardto observing essential formalities in respect of preparation and publication of the schemes.

If the validity of those schemes had been challenged before us, then they would have been quashed simply on the ground, without any more, that those were not the Schemes of the Corporation. But the schemes were rightly rejected by the Special Secretary when the Corporation itself stated before him that they were not the schemes of the Corporation. The publication of schemes Nos. 13 and 14 on 7th February 1964 even when no resolution had been passed by the Corporation in regard to the schemes, was utilised by learned counsel for the petitioners to urge that it only indicated that in the formulation of the schemes the Corporation was acting on the dictates of Shri Mishra and in formulating the impugned schemes subsequently the Corporation did not exercise its own judgment. In our opinion, it requires a big leap from the fact of publication of schemes Nos. 13 and 14 in the manner they were published on 7th February 1964 to reach the inference sought to be drawn by learned counsel.

40. It is important to note that the new schemes, bearing Nos. 13 and 14, were published on 5th February 1965. They covered some additional routes which had not been included in the original schemes Nos. 13 and 14. This addition itself shows that the Corporation exercised its own judgment in formulating the two schemes as published on 5th February 1965. Some of the schemes, to which these petitions relate, were formulated by the Corporation on 8th May 1964, and others on 8th January 1965. There was thus a long interval between the publication of the original schemes Nos. 13 and 14 on 7th February 1964 and the schemes impugned before us. The petitioners have not averred any events happening in this interval or statements made by the Chief Minister during that time to support their suggestion that the influence, which according to them compelled the Corporation officials to publish schemes Nos. 13 and 14 on 7th February 1964, continued to permeate even when the Corporation subsequently formulated the impugned schemes.

True, on 6th February 1964 the ChiefMinister placed before the Assembly a list of twenty-eight routes proposed to be nationalised by the end of 1964 and before that date the Corporation had not passed any resolution approving the twenty-eight routes. The placing before the Assembly by the Chief Minister of a list of routes proposed to be nationalised does not at all lend support to the suggestion that the schemes which the Corporation subsequently formulated originatedfrom the Chief Minister, This becomes clear when it is borne in mind that what was placed before the Assembly was only a proposal of the Corporation about nationalisation of twenty-eight routes for exploring the possibility of the financial assistance that would be available from the Government and for informing the members of the House the extent of financial assistance that would be required for the taking over of those routes. Indeed, if any financier is approached for finance for the purpose of carrying out a project or an undertaking, he would like to know the nature and prospects of the undertaking before advancing any money. The objection that a list of twenty-eight routes was placed before the Assembly even when the Corporation had not passed any resolution, therefore, loses all importance. No resolution of the Corporation was necessary at that stage. The proposals were of the Corporation, and when the Corporation passed resolution with regard to the formulation and publication of the schemes relating to the routes embodied in the proposals there emerged schemes satisfying the requirements of Section 68-C of the Act. In regard to the list of twenty-eight routes which were proposed to be nationalised and which list was placed before the Assembly, Shri Mishra has said in his affidavit-

'the list of schemes and the serial numbers here have no relationship with the scheme numbers allocated to them at the time of their publication or priorities. All these 62 schemes find a place in the three-phased programme of the Corporation'.

This statement of Shri Mishra is only in conformity with the position, already pointed out by us, with regard to the list placed in the House and the schemes formulated and which position is evident from the list of the schemes and the three-phased programme of the Corporation. In regard to schemes Nos. 13 and 14 published on 5th February 1965, it was said that they should have been numbered as 63 and 64, but they were given the original numbers and in this manner the priority of the schemes was altered. There is no substance in this contention. The reason is that though the schemes propounded by the Corporation were given serial numbers, the Corporation never determined the order of implementation of those schemes and the Special Secretary also did not consider the schemes and approve or modify them in the order in which they were numbered.

41. The petitioners' complaint about the late filing of affidavit by Shri Mishra, the verification of his affidavit by Shri Noronha and about the omission on the part of Shri Birbal to file an affidavitdoes not in any way take the matter further. Even taking the averments made by the petitioners as they are, and examining them in the context of the material before us, it is impossible to hold that the impugned schemes were not in reality the schemes formulated by the Corporation after exercising its own judgment but were prepared by the Corporation at the behest of Shri Mishra.

42. If, as we think, the petitioners have failed to show that Shri Mishra bore ill-will against them for political reasons and also failed to convince us that he directed the Corporation to formulate the impugned Schemes, then, it necessarily follows that the impugned schemes were formulated by the Corporation on its own opinion. In fact, it is not the case of the petitioners that the Corporation was also motivated by feelings of hostility against them. In regard to the Corporation, their grievance is that in formulating the schemes the Corporation did not form the opinion which it was required to under Section 68-C of the Act. It is necessary to say that a Road Transport Corporation constituted under the Road Transport Corporations Act, 1950. does not function in vacuum. It has to rely on the Central Government and the State Government for its capital and the shares of the Corporation have to be guaranteed by the State Government.

Therefore, in the formulation ofschemes for nationalisation of road transport services, the Corporation has to take into account the policy of the Government about nationalisation of road transport services and the views and the suggestions that may be made in the Assembly by the public with regard to taking over of certain routes. If, therefore, the Corporation takes into account these factors in formulating a scheme, it cannot be said that in forming the opinion as required by Section 68-C of the Act the Corporation has allowed itself to be 'pressurized' and influenced. In our judgment, the contention of the petitioners that the impugned schemes were not formulated by the Corporation after forming the opinion indicated in Section 68-C of the Act and that it was Shri Mishra who was the inspirer and originator of the schemes, must fail.

43. There is no analogy between the cases before us and Rowiee's case, AIR 1964 SC 962 (supra) dealt with by the Supreme Court. In Rowjee's case, AIR 1964 SC 962 full particulars and details which led the Chief Minister of Andhra Pradesh to entertain feelings of personal hostility towards certain transport operators were given. The Chief Minister did not file any affidavit to refute those allegations. The Supreme Court, therefore, held thatthe allegation that the Chief Minister was motivated by bias and personal ill-will stood unrebutted. In Rowjee's case, AIR 1964 SC 962 the Chief Minister summoned a conference of the Corporation and its officials at which he suggested that nationalisation of bus-routes in certain districts should be taken first. The Andhra Pradesh State Road Transport Corporation then dropped one district altogether and proceeded to take up the nationalisation of routes in other districts. This the Corporation did discarding the principles the Corporation itself had laid down for fixing the order of nationalisation of bus routes in the districts.

It was in these circumstances that the Supreme Court held that it was as a result of the Conference which the Chief Minister summoned and in order to give effect to the wishes of the Chief Minister expressed there that the schemes impugned before the Supreme Court were formulated by the Corporation. The cases before us are materially so different from the case of Rowjee AIR 1964 SC 962 (supra) that here it cannot be said in regard to the opinion formed by the Corporation under Section 68-C of the Act that it is a case of Jacob's voice and the hands of Esau.

44. The validity of the scheme is also attacked on the ground that the Special Secretary, who approved or modified them, was biassed and prejudiced against the petitioners. The allegation of bias on the part of the Special Secretary is made to rest on the circumstances that the petitioner in M, P. No. 368 of 1966 had ntoved the Government for taking away the matter of hearing objections to the schemes and approving or modifying them from Shri Shukla, the Special Secretary, and for entrustment of that matter to any other authority, that Shri Shukla rejected several applications made by the petitioners and also rejected their request for being shown the order of delegation made in his favour by the Chief Minister; and that he also refused to grant the prayer of the petitioners that as the proceedings held by him prior to the making of the order dated the 12th January 1965 by the Chief Minister authorising him to approve or modify the schemes were nullity, there should be a fresh enquiry and reappraisal of evidence.

In our opinion, the challenge to the schemes on this ground must also fail. The fact that one of the petitioners moved the Government for withdrawing the matter of hearing of objections to the schemes and approving or modifying them from Shri Shukla on the ground of bias and prejudice does not mean that Shri Shukla was biassed and prejudiced. The rejection by Shri Shukla of some applications made by the petitioners also doesnot lead to that conclusion. Shri Shukla rejected the petitioner's application for staying the proceedings before him till the Government passed orders on the petitioners' application for withdrawal of the 'matter' from Shri Shukla. But then under no provision Shri Shukla could have stayed the proceedings before him.

His rejection of the petitioner's prayer for being allowed to give oral evidence and documents was justified for the reasons that the objections lodged by the petitioners to the schemes were all of a uniform nature and kind and intended to show that the petitioners were better operators than the Corooration. As pointed out by the Supreme Court in Ramnath Verma v. State of Raiasthan, (1963) 2 SCR 152=(AIR 1967 SC 603), Malik Ram v. State of Rajasthan, (1-.62) I SCR 978= AIR 1961 SC 1575 and AIR 1967 SC 1815 as also by this Court in AIR 1965 Madh Pra 196 and MP No. 351 of 1965 D/- 15-9-1966 (MP), in an enquiry under Section 68-D (2) of the Act the grounds of attack on the draft schemes are limited to the consideration of the question whether the schemes are required 'for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service' and that evidence to show that the objectors were providing more efficient, adequate, economical and properly co-ordinated services would be irrelevant. None of the petitioners objected to the schemes on personal grounds. That being so, it cannot be held that the Special Secretary rejected the petitioners' prayer for examination of certain witnesses and for production of certain documents on account of any bias or prejudice that he had against the applicants,

45. Much stress has been laid on the circumstances that the Special Secretary did not allow the petitioners to examine some witnesses and produce some documents to show that Shri Dwarka Prasad Mishra was personally hostile to them for political reasons and that it was according to his dictation that the schemes were propounded by the Corporation, The Special Secretary rejected this prayer on the ground that the evidence which the petitioners wanted to lead on this point was a matter of record.

In our opinion, the Special Secretary was not competent to go into the question of mala fides of the Chief Minister or to determine whether in formulating the schemes the Corporation did or did not form the requisite opinion under Sec-tion 68-C of the Act. The reason is that the Special Secretary is a delegate of the State Government in performing the functions under Section 68-D (2); the objections that are lodged under that provision are to the scheme published underSection 68-C and not to the opinion formed by the Corporation initiating the schemes or modifying a draft scheme. The decision of the Special Secretary only implies that a scheme, as approved by him, is for an efficient adequate, economical and properly co-ordinated road transport service and in the public interest. If the scheme is rejected by him, then the decision carries the implication that the scheme is not of the nature contemplated by the first part of Section 68-C and the opinion formed by the undertaking for initiating the scheme was not correctBut this does not mean that an enquiry under Section 68-D (2) is into the correctness or otherwise of the requisite opinion formed by the State Transport Undertaking under Section 68-C of the Act before Initiating the scheme. It is one thing to say that a scheme Is good or bad because the opinion formed by the Corporation is correct or incorrect or that the scheme did not in reality reflect the opinion of the Corporation but was prompted by the Chief Minister for political reasons. It is, however, an altogether different thing to say that the scheme framed is or is not of the nature spoken of in Section 68-C of the Act. This has been made very ciear in MP No. 351 of 1965 D/- 15-9-1966 (MP). In that case, it was observed that-

'.... when a scheme Is framed aad objections are filed to the scheme, the 'lis' that the State Government is required to decide with reference to the yardstick formulated in Section 68-C is the scheme itself and not the opinion formed by the State Transport Undertaking leading to the initiating of the scheme. The matter in respect of which a quasi-judicial behaviour is called for is the consideration and determination of the objections to the scheme.'

It is thus clear that the Special Secretary was not competent to hold that the scheme was bad for the reason that the Corporation did not exercise its own judgment In formulating the scheme and quash the proceedings for want of jurisdiction. That being so, the petitioners' prayer for being allowed to lead evidence to show mala fides of the Chief Minister and to prove the fact that the schemes originated from the Chief Minister and not from the Corporation after forming the opinion requisite under Section 68-C was rightly refected, albeit for a different reason. No doubt, the petitioners can show in this Court that the Chief Minister was motivated by bias and personal ill-will against them and that the impugned schemes were vitiated by the fact that they were not in conformity with the requirements of Section 68-C inasmuch as they were formulated not by the Cor-poration after exercising its own judgment but were formulated just to give Effect to the wishes of the Chief Minister. They have been allowed to do that in this Court. The rejection of the petitioners' prayer for being allowed to lead the aforesaid evidence in no way indicates that the special Secretary was biassed against the applicants.

46. The praver of the petitioners for fresh enquiry and reappraisal of the evidence after the making of the order by the Chief Minister on 12th January 1965 on the ground that the proceedings held by the Special Secretary prior to that order were without jurisdiction was also untenable. In view of the decision of the Supreme Court in Ratanlal v. State of M. P., 1967 MP LJ 581 (SC) the proceedings held by the Special Secretary before 12th January 1965 cannot be held to be without jurisdiction and nullity. There could also be no question of the Special Secretary reappraising the evidence and giving fresh findings when he had not, till the date of the making of the application for reappraisal of evidence, given his findings on the objections to the schemes raised by the petitioners and made any order modifying or approving any scheme. The rejection of the prayer for reappraisal of evidence cannot, therefore, be regarded as indicating bias on the part of the Special Secretary.

He was no doubt obstinate in refusing to show to the petitioners the orders of delegation in his favour. But later on he did show those orders to the petitioners when it was pointed out to him by this Court, in a petition directed against his refusal, that the attitude adopted by him was not right. The applicants' contention that the Special Secretary was biassed and prejudiced against them must, therefore, be rejected.

47. During the course of his arguments for some of the petitioners. Shri Dharma-dhikari suggested that the schemes were vitiated for the reason that they did not provide for the contingency of the Corporation being unable to implement the schemes. The suggestion is without any merit. A scheme formulated under Section 68-C and approved or modified under Section 68-D (2) is for the purpose of 'implementing' it. That being so, there could be no question of a scheme provid-ing for the contingency of its non-implementation. It has been very recently pointed out by the Supreme Court in K. V. Venkatachalaiah v. State of Mysore CA No. 350 of 1967 D/- 15-12-1967 (SC) that-

'The fact that the corporation has not fully implemented the scheme cannot vitiate the scheme as such. It may be that in an appropriate proceeding the corporation can be compelled to implement that portion of the scheme. We say nothing about it. But the failure on thepart of the Corporation to carry out one of the directions given in the schemes does not vitiate the scheme.'

48. It remains to consider some points raised by the petitioners in relation to Particular schemes. In regard to scheme No. 61, involved in Anand Transport Co. v. State of Madhya Pradesh, Misc. Petn. No. 512 of 1966 D/- 4-5-1968 (MP) Rai Kumar Gurwara v. State of Madhya Pradesh, M. P. No. 537 of 1968 D/-4-5-1968 (MP) it was first urged that the scheme covered some inter-Statal routes; that these routes could not be included in the scheme without the approval of the other States concerned as required by Section 20 of the Road Transport Corporations Act, 1950 and that in including those routes in the scheme, the Corporation did not at all act in accordance with Section 20 of the 1950 Act. Assuming that the proposal in the scheme for operation by the Corporation of services on inter-Statal routes is a proposal for the 'extension of the operation of its services to any route or area situated within another State', and as such falling under Section 20, the contention urged cannot be considered for the simple reason that it involves an examination of questions of fact and the point has not been taken in the petitions. As the point has not been raised, there is naturally no averment of the Corporation in regard to it in the return filed by the Corporation.

49. Another argument advanced was that the scheme, as finally published, was different from the draft scheme; and that the changes made by the Special Secretary in the scheme were not simply modifications, but that they resulted in a new scheme or an amendment and rectification of the original scheme. The point has not been specifically taken in Misc. Petition No. 512 of 1966, but has been raised in Misc. Petition No. 537 of 1966. which also relates to scheme No. 61. It would appear from paragraph 2 of the order of the Special Secretary, as also from the draft scheme, that the scheme related principally . to inter-Statal routes. It was not intended to touch permit-holders operating their services partially on inter-Statal routes but wholly within the State of Madhya Pradesh itself. The Spedal Secretary found the inclusion in the scheme of some wholly intra-Statal routes inconsistent with the object of the scheme, namely, running of services by the Corporation on inter-Statal routes.

The permit-holders also objected to the Inclusion in the scheme of Jagdalpur-Dhanpunji, Raipur-Jagdalpur, Kakiyar-Jagdalpur and Kakiyar-Keskal all intra-Statal routes. The Special Secretary, therefore, re-drafted Clauses (3) and (5) of the draft scheme so as to bring them in line with the main object of the scheme and to remove the ambiguity andinconsistency that was apparent in Clauses (3) and (5) of the draft scheme.

In our opinion, the changes made by the Special Secretary in Clauses (3) and (5) do not at all alter the essential nature or character of the scheme. That character has been kept intact. Indeed, it is for that purpose that Clauses (3) and (5) of the draft scheme were modified. In the context of the draft scheme the change made in Clauses (3) and (5) thereof clearly fell within the power and meaning of the word 'modify' as expounded by the Supreme Court in Burrakur Coal Co. Ltd. v. Union of India, 1962-1 SCR 44 at pp. 62-63=(AIR 1961 SC 954 at p. 962) and Puranlal Lakhanlal v. President of India, 1962-1 SCR 688=(AIR 1961 SC 1519).

50. In M. P. No. 131 of 1966 (Anand Transport Co. v. State of M. P. and others), which relates to Scheme No. 60, it was contended that the scheme did not provide for grant of permit for alternative routes or areas to persons whose existing permits had been cancelled or curtailed under Section 68-F (2) of the Act. It was said that such a provision was necessary under Rule 3 (1) (j) of the Madhya Pradesh State Road Transport Services (Development) Rules, 1959, as also under Section 43 (1) (iii) of the Motor Vehicles Act. The objection is unsubstantial Rule 3 (1) (j) no doubt says inter alia that every scheme shall provide for 'transfer of the permits to any other route or routes and giving of compensation, if any'. The language of the rule is plain enough to show that the proposal for grant of permits for alternative routes is required to be mentioned in the scheme only if there is any such proposal. If there is no such proposal then obviously no provision in that behalf can be inserted in the scheme.

This is the significance of the words 'if any' occurring at the end of Clause (j) of Rule 3 (1) of the Rules. It was suggested that if there was no proposal for giving the benefit of alternative routes, the scheme should have contained the word 'nil'. The suggestion lacks substance. The very fact that there is no mention in the scheme of any proposal for transfer of existing permits, means that there is no such proposal. An express use in the scheme of the word 'nil' for that purpose is not necessary. Section 43 (1) (iii) of the Motor Vehicles Act does not in any way support the contention raised about a provision being made in the scheme for transfer of permits to other routes. That provision gives to the State Government the power to issue directions to the State Transport Authority regarding the grant of permits for alternative routes or areas to persons in whose cases the existing permits are cancelled or the terms thereof are modified under Clause (b) or Clause (c) ofSub-section (2) of Section 68-F. It is impossible to read that provision as laying down that a scheme published under Section 68-D (3) must contain a provision for alternative routes or that if there is no proposal for grant of permits on alternative routes, it must be so stated in the scheme.

In this connection, learned counsel referred us to Kashi Prasad v. R. T. Authority Gorakhpur, AIR 1961 All 214 where a Single Judge of the Allahabad High Court has held that the offer for alternative routes should be made in the scheme itself, and not after the enforcement of the scheme. The decision is not in point. We are not called upon to determine the question whether it is open to the Government to give directions under Section 43 (1) (iii) of the Act for grant of permits for alternative routes after a scheme has come into force.

51. In Misc. Petition No. 112 of 1966 Raj Kumar Gurwara v. State of Madhya Pradesh and others, which also relates to scheme No. 60, it was first sought to be argued by Shri Tankha learned Counsel for the petitioner that there was a non-compliance of Rule 6 (1) (b) of the Rules inasmuch as a notice of the date, time and place for hearing of the objections to the scheme was not published by affixture in the office of the Collector, and, consequently, the applicant had no knowledge of the date of hearing before the Special Secretary. This point, which involves a question of fact, has not been taken in the petition and, for that reason, cannot be considered.

52. Another point urged in the aforesaid petition was that bazar-day permits were not reserved in the original scheme for exclusive operation by the Corporation and the Special Secretary, by re-drafting Clause (5) and including therein bazar-day permits for the exclusive operation by the Corporation, travelled beyond his power of modification of the scheme. This contention must be rejected. Clause (2) of the draft scheme mentioned the various routes covered by it and bazar-day permits were also included in that clause. Clause (7) of the scheme proposed the cancellation of certain permits which included bazar-day permits. When the bazar-day permits were proposed to be cancelled in the draft scheme, it cannot be argued that the scheme did not intend exclusive operation by the Corporation on the routes covered by the bazar-day permits. The change made by the Special Secretary in Clause (5) of the scheme is plainly a modification of the scheme which does not at all radically transform the scheme.

53. Still another point submitted in Misc. Petition No. 112 of 1966 was that the scheme proposed the cancellation of a permit for Jagdalpur-Dantewada route; that this permit could not be cancelled as a portion of the route covered by the permit, namely Gedam to Dantewada did not fall within the route Jagdalpur-Bhopalpattanam proposed to be nationalised. The contention cannot be accepted. A major portion of Jagdalpur-Dantewada route, namely, one from Jagdalpur to Gedam, falls within a nationalised route. In such a situation, it is open under Section 68-F (2) (b) and (c) of the Act either to cancel the existing permit or to modify its terms so as to curtail the area of operation. The petitioner cannot insist that the permit for Jagdalpur-Dantewada route should have been curtailed so as to permit operation by him on Gedam-Dantewada route and should not have been cancelled. The distance between Gedam and Dantewada is only of a few miles and, therefore, from a practical point of view, it would not have been advantageous to anybody to keep the permit alive for Gedam-Dantewada. In any case, the matter whether the permit should have been curtailed or cancelled was one entirely within the discretion of the competent authority. That discretion cannot be interfered with in proceedings under Articles 226 and 227 of the Constitution.

54. Another argument adduced in the petition under consideration, which has some weight, was that the scheme No. 60 effected contract carriage permits which had not been specified in the scheme. In Clause (4) of the draft scheme as well as of the final scheme, it is provided that no person other than the Corporation will be permitted to provide road transport services (stage carriages or contract carriages) on the specified routes. It is also stated in Clause (9) of the scheme that holders of contract-carriage permits shall also get compensation. There is, however, no mention of any kind in the scheme of the contract carriage permits proposed to be cancelled. That being so, the rule laid down in Baluram v. State of Madhya Pradesh 1967 MPLJ 539=(AIR 1967 Madh Pra 130) that in the absence of non-specification in a scheme of a permit proposed to be cancelled it cannot be cancelled, would apply and it must be held that scheme No. 60 is invalid to the extent it directs the cancellation expressly or impliedly of contract carriage permits. Those permits will continue to be operative notwithstanding the scheme,

55. In Misc. Petition No. 537 of 1966, which concerns scheme No. 61, a contention about the Special Secretary's power of modification, similar to that raised in Misc. Petition No. 512 of 1966 which also relates to scheme No. 61, was first argued. For the reasons already stated in paragraph 49, that contention must be rejected. The next submission made related to a permit granted to the petitioner in respect of Jagdalpur-Jaypore route after tha framing and publication of the scheme under Section 68-C of the Act. As thepermit was granted after the publication of the scheme, it was not mentioned either in the draft scheme or in the final scheme. The petitioner's contention is that as the permit was not specified in the scheme, the Regional Transport Authority could not cancel it. This is a contention which in no way affects the validity of the scheme. If the petitioner thinks that the Regional Transport Authority's order of cancellation of the permit is illegal, then he is at liberty to take appropriate proceedings for challenging the order of the Regional Transport Authority.

56. It was then urged that scheme No. 61, which relates to inter-Statal routes, while stopping the operation of services on those routes by operators in the State of Madhya Pradesh, permits the operators from other States, such as Orissa, to run their services on inter-Statal routes, and this amounts to discrimination. We are unable to accept this contention. Under that scheme, nationalisation is not of all the services run on inter-Statal routes on the basis of inter-Statal agreements. It is only of the services operated on inter-Statal routes by nominees of the State of Madhya Pradesh. Therefore, the Orissa operators, who run their services on inter-Statal routes as nominees of the Orissa Government, are in a class or category different from the class or category of operators from Madhya Pradesh. Consequently, it cannot be urged with any degree of force that under the scheme there is a discrimination as between the Orissa operators and Madhya Pradesh operators.

57. It was said that scheme No. 61 was not sent to the Orissa authorities for publication and thus there was non-com-liance of Rule 3(2) and Rule 6 (i) of the Rules. The short answer to this contention is that as the scheme affects only operators from the State of Madhya Pradesh and not of Orissa, it was not necessary to publish the scheme in Orissa. That apart the petitioner (in Misc. Petition No. 537 of 1966) not being an Orissa operator cannot very well complain that the scheme was not published in the Orissa State.

58. In Misc. Petition No. 151 of 1966 Public Transport Company and another v. State of M. P. and others the validity of scheme No. 19 covering inter-Statal routes has been challenged. The two points made in this petition about non-publication of the scheme at the office of the Regional Transport Authority, Nag-pur, and discrimination as between operators on inter-Statal routes from Maharashtra and operators from Madhya Pradesh must be rejected for all that wehave lust stated in paragraphs 56 and 57 in connection with Misc. Petition No. 537 of 1966.

59. In Misc. Petition No. 249 of 1066 (Raipur Transport Co. v. State of Madhya Pradesh and others, and Misc. Petition No. 295 of 1966. The Punjab Sikh Regular Motor Service v. State of Madhya Prakash and others) concerning scheme No. 23 covering inter-Statal routes, an objection with regard to non-publication of the scheme in Orissa State was raised. That contention must also be rejected for the reasons given in paragraph 57 of this order in connection with Misc. Petition 537 of 1966. In those cases also, learned counsel sought to argue that there was non-compliance of Section 20 of the Road Transport Corporations Act, 1950. The point has not been specifically taken in the petitions and cannot, therefore, be considered.

60. In Misc. Petition No. 153 of 1966 The New Jabalpur Transport (P) Ltd. and R. Co. v. State of Madhya Pradesh and others the only point submitted was that permits for Mandla-Pondi were proposed to be cancelled under scheme No. 33 even though Mandla-Pondi route had not been reserved for exclusive operation by the Corporation. This contention is devoid of any merit. The routes reserved for exclusive operation by the Corporation an mentioned in the scheme are Mandla-(sic) Mandla-Bilaspur and Mandla-Burg routes. Mandla-Pondi forms a Part of these routes, and in Clause (5) of the scheme. It has been mentioned that the Corporation will exclusively provide transport services between Mandla-Pondi portion of the route. The cancellation of permit fur Mandla-Pondi route is therefore, in order.

61. In MISC. Petition No. 367 of 1966 Madhya Pradesh Transport Co. v. State of Madhya Pradesh and others, relating to scheme No. 14, it was argued that the scheme covered Raipur-Rajim route but the Corporation did not approve this route. There is no material whatsoever to support this contention of the petitioner. It was on 1st February 1965 that the Corporation passed a resolution formulating scheme No. 14. In the draft scheme Raipur-Rajim route was mentioned as one of the routes proposed to be nationalised. There is nothing to show that scheme No. 14, which the corporation approved, did not include Raipur-Rajim route and was thus different from the scheme as published under Section 68-C of the Act. In the absence of any averment or material on the point to show that the route was not included in the scheme when it was passed by the Corporation, the contention must be rejected.

62. The next contention put forward In this petition was that scheme No. 14 violated the Ceiling Order made underSection 47 (3) of the Act. The contention is altogether without any substance. aS is clear from Section 68-B, Chapter IV-A of the Act overrides Chapter IV thereof. Therefore, the scheme framed under Chapter IV-A docs not become invalid even if it conflicts with any ceiling order made under Section 47 (3) included in Chapter IV of the Act.

63. In Misc. Petition No. 45 of 1967 Sudarshan Transport Services v. State of Madhya Pradesh and others and Misc. Petition No. 229 of 1966 Sudarshan Transport Services v. State of Madhya Pradesh and others, relating to scheme Nos. 42 and 26 respectively, it was said that the schemes were bad inasmuch as they provided for the taking over of Kachha routes. The point is without any merit. There is no provision in the Motor Vehicles Act prohibiting the inclusion of Kachha route in a scheme framed under Chapter IV-A of the Act

64. For the foregoing reasons, with the exception of Misc. Petition No. 112 of 1966, all other petitions are dismissed with costs of the Corporation. In each of those cases, counsel's fee is fixed at Rs. 250/-. Misc. Petition No. 112 of 1966 is allowed to the extent that the direction contained in scheme No. 60 with regard to cancellation of contract carriage permits is quashed. If any of the contract carriage permits held by the petitioner in Misc. Petition No. 112 of 1966 has been cancelled, the same shall be restored. As the said petitioner has failed on all other points, we direct him to pay the costs of the respondent Corporation, including Rs. 150/- as counsel's fee.

65. The outstanding amount of security deposit shall in each case be refundedto the petitioners after deduction of costs.


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