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Prakash Chandra Sahu and ors. Vs. Managing Director, O.R.T. Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberO.J. Case Nos. 1660, 1661 etc. of 1978 and 8, 18, 38 etc. of 1979
Judge
Reported inAIR1980Ori122
ActsMotor Vehicles Act, 1939 - Sections 68A, 68C, 68D, 68D(1) and 68I; Motor Vehicles (Orissa) Rules, 1940 - Rules 3 and 5; Constitution of India - Articles 14, 107A, 226 and 227; Evidence Act, 1872 - Sections 101
AppellantPrakash Chandra Sahu and ors.
RespondentManaging Director, O.R.T. Co. and ors.
Appellant AdvocateG. Rath, ;R.C. Patnaik, ;R. Mohanty, ;G.P. Mohanty, ;R.K. Rath, ;N.C. Panigraphi, ;G.S. Sarangi, ;M. Mohanty, ;D.K. Mohapatra,;B.K. Misra, ;S.C. Parija, ;H.N. Mohapatra, ;B.N. Sahu, ;C.V. Murty, ;C.A.
Respondent AdvocateR.K. Mohapatra and Y.S.N. Murty and ;G.B. Patnaik, Addl. Govt. Adv., ;Adv. General and ;Standing Counsel (Transport)
DispositionPetitions dismissed
Cases ReferredK.S. Achuthan v. State of Mysore
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....ray, c.j. 1. this batch of writ petitions have been consolidated for hearing as common questions of law are involved. these petitioners are motor bus (stage carriage and contract carriage) operators in the districts of puri, ganjam and cuttack in the state of orissa. opposite party no. 1, o. r. t. company. berhampur, ganjam, purporting to be a state transport undertaking published nine draft schemes in the orissa gazette of 81st dec., 1977 for nationalising passenger transport service over nine different routes lying wholly or partly in the three districts of puri, ganjam and cuttack indicated in detail in those draft schemes, as required under section 68-c of the motor vehicles act, 1939 (hereinafter referred to as the 'act'). objections or representations to the draft schemes were.....
Judgment:

Ray, C.J.

1. This batch of writ petitions have been consolidated for hearing as common questions of law are involved. These petitioners are motor bus (stage carriage and contract carriage) operators in the districts of Puri, Ganjam and Cuttack in the State of Orissa. Opposite Party No. 1, O. R. T. Company. Berhampur, Ganjam, purporting to be a State Transport Undertaking published nine draft schemes in the Orissa Gazette of 81st Dec., 1977 for nationalising passenger transport service over nine different routes lying wholly or partly in the three districts of Puri, Ganjam and Cuttack indicated in detail in those draft schemes, as required under Section 68-C of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act').

Objections or representations to the draft schemes were invited intimating the intending objectors that they shall file their objections under Section 68-D of the Act before the Minister-in-charge of Transport through the Secretary to Government of Orissa in the Transport Department within 30 days from the date of publication of the draft schemes. Objections to these draft schemes were heard under Section 68-D (2) of the Act by the Transport Minister and the schemes were approved with certain modifications. The Minister passed a common order dealing with all nine routes which is dated 30th Oct., 1978 and has been appended as an Annexure to each of the writ applications. The lasttwo paras of the impugned order of the Minister are extracted hereinbelow :--

'21. The final scheme, as approved above with the modifications, be published under Section 69-G of the Act in the Orissa Gazette and it be indicated that the scheme will be operated and implemented from 15-12-1978.

22. Instructions be issued that from the side of S. T. A. and R. T. A. steps be taken to rehabilitate the displaced operators, if possible. Legally, however, compensation to such displaced operators on such conditions will have to be paid by the Orissa Road Transport Company, Berhampur under Section 68-G of the Act.' These writ applications have been filed to quash the Minister's order as also the approved and draft schemes.

Before the approved schemes were implemented, some of the writ applications were filed and status quo as prevailing prior to the implementation of the schemes was directed to be maintained until further orders. The effect of this order was that the operation of the approved schemes by which the private bus operators were excluded from plying their buses over the nationalised routes was stayed.

2. A large number of contentions have been advanced on behalf of the petitioners who are represented here by different counsel. The contentions which with be dealt with seriatim are enumerated hereinbelow:

(1) Orissa Road Transport Company Limited is not a 'State Transport Undertaking' as defined in Section 68-A, Clause (b) of the Act and, as such, the draft schemes published by it pursuant to Section 68-C of the Act lacks initial validity and is, thus, liable to be quashed. In consequence, the Minister's order approving the schemes with modifications must necessarily fail.

(2) The draft schemes as well as the approved schemes are invalid, as the particulars required by Section 68-C and Rules 3 and 5 of the Orissa Motor Vehicles (State Transport Undertaking) Rules, 1959 (hereinafter called the 'Rules') have not been published.

(3) The approved scheme not having provided for an efficient, adequate, economical and properly co-ordinated road transport service, is not in public interest Thus, it violates Arts. 14 and 30 of the Constitution.

(4) The O. R. T. Company is not possessed of sufficient number of vehiclesnor resources to provide an efficient, adequate, economical and properly co-ordinated transport service.

(5) The operators have been denied the opportunity of hearing and Section 68-D, Sub-section (2) of the Act has not been followed ana rules of natural justice have been infringed.

(6) The Transport Minister has not considered the objections on merit, but has rejected them arbitrarily without consideration and the decision approving the schemes has been taken on irrelevant considerations.

(7) The approval of the schemes by the Transport Minister is vitiated by bias and mala fides.

(8) Omission to provide buses in the sectional or feeder routes while nationalising the main routes in the approved schemes results in public hardship and cannot be considered to be in the public interest and, thus, the nationalised routes do not constitute adequate and properly co-ordinated road transport service and consequently the schemes are liable to be quashed. The petitioner in O. J. C. No. 1737 of 1978, operating his bus O. R. G. 4380 which is a stage carriage on temporary permits on the route Singipur to Kanaipur via Berhampur, Chatrapur and Khalikote, filed an objection to the draft scheme (Annexure-8), but was given no opportunity of being heard under Section 68-D and on this ground of infringement of rules of natural justice Annexure-9 in O. J. C. No. 1737/78 is liable to be quashed.

3. Before dealing with the contentions it is necessary to notice the scheme of the Act and the Rules framed thereunder Chap. IV-A of the Act provides a special provision relating to State Transport Undertaking. This Chapter containing Ss. 68-A to 68-1 was inserted by Act 100 of 1956 and Section 68-J of that Chapter was introduced by Act 56 of 1969. In introducing this Chapter in the Act the legislative object was to facilitate the introduction and expansion of nationalised transport service. Section 68-A to Section 68-J deal with grant of permits to the State Transport Undertaking to the exclusion of private operators and other ancillary matters like principle and method of determining compensation for payment to those permit holders whose permits are either cancelled or terms whereof are modified as a result of giving effect to the approved scheme in respect of a notified area or notified route.

Section 68-B provides that the provisions of Chap. IV-A and the Rules and orders made thereunder shall prevail notwithstanding Chap. IV or any other law for the time being in force.

Chapter IV-A provides procedure for nationalisation of routes or areas either to the complete exclusion of private operators or to their partial exclusion.

4. The function of the State Government or any officer authorised by it for hearing objections under Sub-section (2) of Section 68-D of the Act being quasi-judicial in nature, the petitioners have essentially asked for a relief of issuance of a writ of certiorari to quash the schemes. It is, therefore, appropriate to notice the legal perspective in which the reliefs of the present nature can be granted. The authority in exercising its quasi-judicial function under Section 68-D (2) of the Act must not only observe the rules and procedure indicated either in the Act or in the rules but also observe the rules of natural justice. Whether rules of natural justice have been observed in a particular case is to be judged in the light of the constitution of the statutory body by the Legislature which has to function in accordance with the rules laid down, because rules of natural justice would vary with the varying of the constitution of the statutory body and the rules prescribed under the Act under which it functions. The Supreme Court from time to time has spoken on the doctrine of rules of natural justice. (See the decisions of Supreme Court in the case of M/s. Fedco (P) Ltd. v. S.N. Bilgrami, AIR 1960 SC 415, and in the case of Suresh Koshy George v. University of Kerala, AIR 1969 SC 198).

The jurisdiction of this Court to issue writ of certiorari is supervisory and it is, not entitled to act as an appellate court This means that the findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in the writ petitions. No error of fact, however, grave it may appear to be, can be corrected in exercise of this jurisdiction. The finding of fact can only be interfered with if it is shown that in recording the said finding the tribunal has erroneously refused to admit admissible and material evidence or has erroneously admitted inadmissible evidence which has influenced the impugned finding, or the finding of fact is based on no evidence, because in such an eventuality such finding of fact would be regarded as an error of law andcan be corrected. It may also be kept in mind that the finding of fact recorded, however, cannot be challenged in a proceeding for a writ of certiorari on the ground that relevant and material evidence adduced before it was inadequate or insufficient to sustain the impugned inding. The adequacy or sufficiency of :he evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal. The error must appear on the face of the record. It follows, therefore, that points or contentions not urged before the tribunal or inferior court or subordinate courts cannot be urged for the first time in the High Court. Similarly, deficiency of evidence cannot be sought to be made up at the High Court stage by filing additional documentary evidence. Such documentary evidence, if filed, are not entitled to be considered by this Court.

5. In the present batch of cases nine routes have been nationalised under the approved schemes. Those routes are (a) Berhampur-Cuttack, (b) Jatni-Boudh. (c) Katringia-Sankharkhol via Khajuripada and Phulbani, (d) Phulbani-Muniguda, (e) Phulbani-Sudra, (f) Phulbani-G. Udayagiri, (g) G. Udayagiri-Baimal, (h) G. Udayagiri-Dahingibadi and (i) Boudh-Kusanga-Tikarpada. In consequence of these approved schemes the road transport services shall be run and operated exclusively by the O. R. T. Company over the aforesaid nine notified routes to the complete exclusion of all bus operators including the petitioners. Objections have been filed only in respect of two routes, namely, (a) Berhampur-Cuttack and (b) Jatni-Boudh. All the writ petitions relate to these routes but petitioners in O. J. C. Nos. 1787, 1850, 1786, 1714, 1756, 1701, 1789, 1700, 1788) 1718, 1790, 1791, 1849. 1843, 1842, 1847, 1848, 1846, 1699, 1698, 1697, 1850, 1696, 1693, 1799, 1691, 1798, 1792 and 1692 of 1978 and 59, 8, 98, 61, 99, 100, 81, 96, 18 and 39 of 1979 did not file any objection at all under Section 68-D (2) of the Act.

Section 68-C of the Act provides for publication of the draft scheme by the State Transport Undertaking when it is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that the transport service in relation to any area or route or any portion thereof should be run and operated by it. The draft scheme has to be published in theOfficial Gazette. Section 68-D provides for objection to be filed within 30 days from the date of publication of the draft scheme under Section 68-C by classes of persons specified therein objecting to the scheme of nationalisation. Sub-section (2) of that section provides that the State Government, after considering the objections and after giving an opportunity to the objectors and the representatives of the State Transport Undertaking, may approve or modify the scheme.

Section 68-D, Sub-section (3) provides that the scheme as approved or modified by the Government shall be published in the Official Gazette and shall thereupon become final. Section 68-E provides for modification of the scheme in certain contingency. Section 68-F provides for issue of permits to the State Transport Undertaking in respect of the notified area or notified route. Section 68-FF puts a restriction on the permit granting authority for issue of permit in favour of any private operators on the notified area or notified route. Section 68-G provides the methods for determining compensation payable to the permit holders whose permits have been either cancelled or terms thereof modified as a result of nationalisation of the notified area or route. Section 68-I confers the power on the State Government to make rules for carrying into effect the provisions of Chap. IV-A.

In exercise of powers conferred by Section 68-I of the Act the State Government has promulgated rules. Rule 3 provides the particulars to be supplied in the draft scheme or the approved scheme. Rule 4 provides for manner of publication of the scheme, Rule 5 provides for approved forms. Rule 6 provides the procedure for filing objection and the authority before whom the objection has to be filed. Rule 7 provides that unless the objection is made in accordance with Rule 6 the same shall not be considered. Rule 8 provides for procedure for consideration of the scheme. Rule 10 provides the procedure to be followed by the permit granting authority in implementing the scheme. Rule 11 provides the manner of service of notice. Form-I is the prescribed form in which the publication under Section 68-C has to be made and Form II is the prescribed form in which the approved scheme has to be published.

6. The first contention is now taken up. The expression 'State Transport Undertaking' has been defined in Section 68-A, Clause (b) of the Act. That definition runs thus :--

'(b) 'State Transport Undertaking' means any undertaking providing road transport service, where such undertaking is carried on by -

(i) the Central Government or a State Government;

(ii) any Road Transport Corporation established under Section 3 of the Road Transport Corporation Act, 1950 (54 of 1950);

(iii) (omitted by Act 56 of 1969);

(iv) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments or by the Central Government and one or more State Governments.'

It has been asserted by the opposite parties that the Orissa Road Transport Company Limited is a company which is controlled by the State Government. It is also admitted that the Central Government and the State Government of Orissa together have 98 per cent of the shares of the Company. We allowed the O. R. T. Company to produce a printed copy of their Memorandum and Articles of Association as an annexure to a supplementary affidavit as this objection was raised for the first time here and not before the Minister and as this objection involved a mixed question of law and fact. Article 107(A) of the Articles of Association reads as follows :--

'Subject to provision of the Companies Act and notwithstanding anything contained in any of these Articles, the Governor may issue such directives or instructions as he may think fit in regard to the finance and conduct of business and affairs of the Company and the Board of Directors shall duly comply with and give effect to such directives or instructions to the extent they are capable of being complied with under the Act.'

On a bare perusal of the Articles of Association, more particularly of the extracted Article 107(A), it is crystal clear that any directive or instructions from the Governor of Orissa in regard to the finance and conduct of business and affairs of the Company is binding on the (Company. Thus, the O. R. T. Company's fully controlled by Orissa State Government and, accordingly, comes within the purview of Section 68-A (b) (iv) and constitutes a 'State Transport Undertaking'. This contention, therefore, fails.

7. The second contention is that the scheme under Section 68-C of the Act (Annexture-2 of O. T. C. No. 1660 of 1978) and the approved scheme under Section 68-D(Annexure-1 of O. J. C. No. 1660 of 1978) are invalid as some particulars required by the section and Rules 3 and 5 or the Rules regarding adequacy of the proposed transport service have either been withheld or not been published, so as to enable objectors to prefer any effective objection. Reference, in this connection, has been made to Cols. 2, 3, 4, 5, 7, 8, 9, 10, 12 and 14 Schedule 11 of Form I prescribed under Rule 5 of the Rules under the draft scheme.

Section 68-C provides that 'where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct'. Rule 3 of the Rules prescribes the following particulars to be given, namely:--

(i) Name of the route indicating its course and mileage.

(ii) The number of vehicles proposed to be operated on each route,

(iii) The total number of trips to be per formed daily on each route-

(iv) The nature of services including provision of amenities and fare and freight.

(v) The weight and nature of passenger luggage that shall be carried free of charge.

(vi) Actual date of operating the route. Rule 5 prescribes that the scheme or the approved scheme shall be published in the Official Gazette in Form I or II as the case may be. Form I contains two schedules. Schedule I contains one item, namely, area or route in relation to which the scheme is proposed. Schedule II contains 16 Cols, each designating a kind of particular to be filled up. Form II is the form in which the approved scheme is to be published. It also contains 16 Cols, eachrelating to one kind of particular to be filled up. The 16 Cols, in Schedule II of Form I and the 16 Cols, in Form II are identical.

These particulars are manifestly required to enable transport operators running their vehicles on the routes proposed to be nationalised to know that they are affected by the scheme and might, if they see sufficient reasons therefore, prefer objections under Section 68-D (1), and that they may formulate their objections properly, particularly pointing out the deficiency or inadequacy of the scheme or services proposed to be run under the scheme, for the approving authority to consider (See the case of C.S. Rowjee v. State of Andhra Pradesh, AIR 1964 SC 962). In other words, the object is to enable the objectors to make an effective representation against the proposed nationalisation. It is said that out of 16 Cols, prescribed in Form 1, particulars in respect of 15 items only have been mentioned in the draft scheme and one has been omitted. Thus, the omission to give particulars in respect of one item constitutes breach of the mandatory rule and, thus, invalidates the draft scheme.

It is further argued that there is complete non-application of mind in regard to the nature of services proposed to be introduced by virtue of notification and this is clear from the entry in Col. 2 of draft scheme which does not contain the required particulars regarding the area (name of routes with starting point and termini etc.). The entry in this column states that service in question is muffasil service, while the transport service sought to be nationalised between Cuttack ana Berhampur is the most important commercial route of the State which can hardly be described as a muffasil service. Criticism has been made of the entries as against Cols. 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 14 of the draft scheme in regard to Cuttack-Berhampur route. The grievance is that the particulars relating to area (names of routes with starting point and termini etc.) as required by Col. 2 of Schedule II of Form I have not been furnished.

As against Col. 8 it is contended that the existing service operated by O. R. T. Company Ltd. has not been given in relation to the entire route or portion or por tions of the route, in consequence where: of it is impossible for anybody to make any idea as to the number of stage carriages which are proposed to be operated on the route. The information relating to number of daily trips given against Col. 4 is vague as the number of tripsperformed by other services of O. R. T, Company either on the entire route of portion or portions of the route has not been disclosed. In result, it is impossible to make out anything in regard to number of daily trips schedule to operate. As regards Col. 5 the comment is that the existing number of stage carriages operating on the entire length of the route has not been given. Similarly, the number of stage carnages operating on any particular portion or portions has not been disclosed. In result, particulars disclosed do not convey any definite idea of the maximum number of vehicles proposed to be ope* rated. Further, the particulars given out are wholly misleading. In Col. 6, the particulars disclosed are. 'Three scheduled trips as in Col. 4 (b) above. More trips may be performed according to traffic demand'. The comment is that under Col. 4 (b) particulars published regarding number of daily trips are vague since against that column it has been stated, 'Three round trips--over and above trips performed by other services of the Orissa Road Transport Company Limited'. Thus, particulars given as to the maximum number of trips are insufficient. As regards Col. 7 the particulars disclosed relate to maximum number of vehicles intended to be kept in reserve to maintain the service ana to provide for special occasions. What has been disclosed is, 'One or more according to necessity'. The necessity for vehicles to be kept in reserve for maintenance of service could have been assessed from facts available and past experience and maximum number should have been disclosed in the notice. Regarding provision for special occasions it is stated, 'Buses on contract or reservation basis as pet rules shall be provided according to traffic demand'. The comment is that the requirement of contract carriages for special occasions has no relation to the general traffic demand. Further, the rules referred to therein have not been published.

Thus, the particulars given against this column are vague. As regards Col. 8 the criticism is that the arrangements proposed for housing, maintenance and repairs of the vehicles have not at all been given out. There is only a reference to the existing provision made, but nothing about the proposed arrangements. The particulars in Col. 9 are vague. Information regarding arrangements proposed for the stands and halts on the routes at which copies of time-table of the services are proposed to be exhibited has not beengiven in Col. 10. The information given against Col. 12 regarding total weight of luggage proposed to be carried in relation to each passenger and arrangements that are proposed to be made to carry the lug' gage without inconvenience to the passengers is 'As per the rules in vogue in the Orissa Road Transport Company Limited', without publishing the rules and thus, the information is vague. Similarly, the information given in Col, 14 is by reference to rules in vogue in O. R. T-Company Ltd. and without publishing those rules the potential objectors are kept in the dark.

Section 68-C of the Act requires two things, viz., (i) the nature of services proposed to be rendered, and (ii) the area or route proposed to be covered. So long as a scheme gives these two informations which the section requires and such other particulars which the Rules prescribe and such particulars are sufficiently detailed to enable the petitioners to file their objections, that is enough for the purpose of validly originating the proceeding resulting in eventual nationalisation of the routes and services concerned. Omission of a small particular in the scheme which has not the effect of preventing private operators from showing that the scheme did not provide adequate, efficient, economical and properly co-ordinated transport service would not be sufficient to invalidate the scheme. This was the view of the Supreme Court in the case of Capital M. P. Co-operative Societies v. State of M. P., AIR 1967 SC 1815, the relevant passage from which is extracted hereinbelow:

'..... The schemes have given sufficient details to enable the appellants to file their objections. The four purposes mentioned in Section 68-C are so all embracing in their nature that it would always be possible for a private operator to put forward some small particular and say that this particular should also have been given in the proposed scheme and as it is not given it is not possible for him to make a proper objection with respect to the four purposes mentioned in the section. The result of accepting the argument on behalf of the appellants would be that no scheme would ever get through, for some small particulars or other can always be put forward by some person or other as not included in the scheme and therefore the whole proceeding should be invalidated on account of defect in the proposed scheme originaling the proceeding. We are of opinion that so long as a scheme gives the two things which the section itself prescribes and such other particulars which the rules prescribe, that is enough for the purpose of validly originating the proceeding resulting in eventual nationalisation of the routes and services concerned......'

Reading Section 68-C of the Act and the Rules it is clear that the scheme shall contain! particulars of the nature of services proposed to be rendered, particulars of the area or route proposed to be covered and particulars which are required by Rule 3 of the Rules. It may be seen that Forms I and II contain some columns relating to matters which are outside the scheme of Rule 3 or of the requirements of Section 68-C Omission to fill up those details indicated in the form while fulfilling the requirements of Rule 3 or Section 68-C would not affect the validity of the scheme. The columns of the forms which are not covered under Rule 3 would not be treated as particulars prescribed by the Rules to be contained in the scheme. If those excess informations can be afforded, all the better. If those informations are incorporated in the form it would not invalidate the same as being in breach of the statute or Rules' The marginal note of Rule 3 is, 'Particulars of the scheme' and it enumerates six particulars which must be found in the scheme.

Thus, if essentially the requirements of the section and the Rules are complied with which do not have the effect of frustrating all efforts of making a proper representation or objection against nationalisation, the scheme would not be invalid-dated. The expression 'nature of services proposed to be rendered' in Section 68-C means only the kind of service to be nationalised, that is to say, whether the passenger service or goods service or mixed goods and passenger service, stage or contract carriage services shall be taken over. Particulars of the scheme as required by Rule 3 besides those indicated in Section 68-C are regarding number of vehicles proposed to be operated on each route, total number of trips to be performed daily on each route, nature of service including provision of amenities and fare and freight, the weight and nature of passenger lug gage that shall be carried free of charge and actual date of operating the route The purpose of publishing the scheme containing all these informations is, as already stated, for inviting objections from the operators putting forth their objections as to whether the scheme is one which could provide efficient, adequate, economical and properly co-ordinated road transport service-It will be seen from the draft scheme (Annexure-2 of O. J. C. 1660/78) that the name of the route indicating its course and mileage has been provided in Col. 1. There was no confusion in the mind of the objectors as to the route proposed to be nationalised, because in their objection petitions before the State Government they have referred to the route by the very name by which it has been referred to in Annexure-2 of O. J. C. 1660/ 78. Informations regarding number of vehicles proposed to be operated, total number of trips to be performed daily, the nature of services including provision of amenities and fare and freight have been supplied in Cols. 3, 4, 5, 6, 8, 9, 11, 12 and 14 and the actual date of operating the route is stated in the preamble of the notification as 1-3-1978.

The particulars regarding maximum and minimum number of vehicles as required by Col. 6 of Schedule II of Form I is not a requirement under Rule 3 or Section 68-C. While Rule 3 makes express prescription regarding particulars to be supplied in the scheme Col. 6 of Schedule II of Form I or Form II does not constitute such an express prescription. Therefore supplying that information as is required in Col. 6 is not mandatory as the requirement of Rule 3 is. Such a requirement of Clause 6 is repugnant to Rule 3 as also Section 68-C. Conceding for the sake of argument that that requirement of Clause 6 is also as mandatory as the requirement of Rule 3, nevertheless, the information has been given. Col. 3 requires the information as to the number of vehicles scheduled to operate in each route. The number given is five in addition to other services already in operation by the Company. Then in Col. 5 the information required is as to the maximum and minimum number of vehicles proposed to be operated in each route. The minimum number is three stage carriages each having fifty seating capacity and the maximum number is given as three which is equal to the minimum number with an undertaking to put in more vehicles if necessary. We, however, read the scheme as providing the maximum number to be three. This appears to be sufficient compliance of the requirements of the section and the rules so far as giving particulars regarding maximum and minimum number of vehicles proposed to be operated on the route is concerned.

A similar case came before the Supreme Court in the case of Roshanlal v. State of U.P., AIR 1965 SC 991. In that case the scheme originally contained that adequate number of contract carriages would be put on the route without specifying the number. This was struck down. The modified scheme provided that 16 contract carriage services or more or less in accordance with the need from time to time would be provided on the route. This scheme was challenged as not being in conformity with Section 68-C of the Act. This challenge was repelled by the Supreme Court in the following words :

'It was next contended that the provision of 16 contract carriages or more or less' under Clause (3) of the present scheme does wot carry out Section 68-C either in spirit or in terms. Section 68-C requires 8 adequate' services to be maintained and the fixing of 16 carriages in advance, it is said, does not carry out the purpose of that provision. It is also contended that as this number is likely to be changed the scheme itself would be open to challenge whenever the number is loss than the adequate number required. It may be pointed out that on the former occasion the provision about 'adequate' carriages was challenged as too vague. It is because of that challenge that the number of carriages is now shown and it is provided that this number may be more or less as the occasion demands. We read the scheme as providing sixteen contract carriages. We need not consider whether it would become inadequate in the future. At the moment it is stated that 16 carriages will be provided and it is not affirmed that this number is in any way inadequate.'

It may also be noted that this objection to the scheme was never taken up before the State Government. The only objections advanced there were that the O. R. T Company Limited has not got adequate number of vehicles to operate in all the nationalised routes, that it had only 260 vehicles operating over 300 routes out of which about 40 vehicles are old and also do not comply with the provisions of Chap. V and rules made thereunder to get the certificate of fitness from the M. V. I., that the Company does not maintain their vehicles properly, and that it is a regular defaulter arid not paying passenger tax and road tax in time. In view of these objections, all the objections now raised before this Court are new and cannot be canvassed, because in a certiorari proceeding the Court will not embark upon an enquiry as to thepoints not raised before the lower tribunal. The Court will not enlarge the scope of the proceeding. The Court will merely see whether the lower tribunal acted legally or not. In that view of the matter, the objections now raised which were not before the Minister cannot be raised for the first time here and, thus, are not relevant. It will appear from the order of the Minister which is impugned here (Annexure A/2 in O. J. C. 1660/78) that apart from written objections the only other objection raised before him was that the minimum and the maximum number of vehicles proposed to be run on different routes as indicated in the scheme was not feasible.

Mr. G. Rath for the petitioners relied upon a decision of the Supreme Court in the case of C.S. Rowjee v. State of Andhra Pradesh (AIR 1964 SC 962) (supra). This decision was considered subsequently by the Supreme Court in the case of B.H. Aswathanarayan Singh v. State of Mysore, AIR 1965 SC 1848 where-in it was said that the observation of the Supreme Court in Rowjee's case (AIR 1964 SC 962) regarding fixing of minimum and maximum number of vehicles and trips in the scheme must be treated as obiter. A contention was raised in the case of B.H. Aswathanarayana Singh (supra) that the provision of maximum and minimum in the scheme would be in contravention of the requirement of Section 68-C. This contention was repelled by holding that the word 'particulars' in the section has been used in its ordinary meaning that is, 'details or items' required to enable the objectors to prefer objections and these details are of the nature of services proposed to be render ed (which) may not only be in the form of a precise number of vehicles and trips but also in the form of a minimum and maximum number of vehicles and trips for each route since they would give the necessary information to enable the objectors to oppose the scheme even with reference to the adequacy of the services proposed to be rendered. It was further held that the provision of minimum and maximum would allow flexibility which would obviate the necessity of taking action, under Section 68-E every time a minor change in the number of trips with the necessary change in the number of vehicles employed, is made and it cannot be said to be a device to get round Section 68-E.

In the case of C.P.C. Motor Service, Mysore v. State of Mysore, AIR 1966 SC1661, it was found that even where maximum number of vehicles and trips was indicated in the scheme the same cannot be said to have contravened Section 68-C. It was contended in this Supreme Court case that the scheme was vague, indefinite and contradictory. It was vague as in the relevant columns the routes of the private operators had not been shown, the fares and times had been left out and the S. T. A. had been given the power to fix them; that the scheme is destructive of co-ordination inasmuch as there is likelihood of transhipment of passengers from State-owned buses to private buses at the border of the nationalised area. It was also contended that though the Chief Minister had directed modification of the scheme excluding certain portions of the nationalised route since they overlap the routes of the private operators, but in carrying out modification the directions Were not included.

It was also contended that inter-district routes should not be taken to have been affected since the overlapping portion must be taken to be a portion of the private operators' licensed route, which had not been nationalised, the overlapping portion could not be said to have been taken away. All these contentions were repelled. With regard to vagueness, it was stated that since the private operators were to be excluded from the nationalised route, the entry 'Nil' was correctly shown. With regard to the fares and timings having been left out and left with the S. T. A for fixation, it was held that it was 'too much to expect fares and timings to be included in the scheme, because each route requires elaborate enquiry for fixing the fares as well as the timings of service. The scheme is not required, under the law, to deal with these matters, and we are satisfied that the omission of these details from the scheme does not militate against it.'

'The argument that the scheme was destructive of co-ordination due to the likelihood of transhipment from State-owned buses to the private buses at the border of the nationalised routes was also repelled on the ground that under Section 68-C the State Transport undertaking may take over whole routes or whole areas or part of the routes or part of the areas, and if the scheme operates partially, some tran shipment would obviously be necessary but co-ordination would still exist because where the State omnibuses come to a hall the private omnibuses would take thepassengers set down. With regard to the contention that the inter-district routes of private operators would not be affected by the scheme, it was held that the routes which were inter-district open to the private operators would stand pro tanto cut down to only that portion which lies outside the natinoalised route or area.

In the case of A. Vishwanath Rao v. State of Mysore, AIR 1968 SC 1095, it was contended that though in the draft scheme the maximum number of vehicles and daily services were specified, and not the minimum, but in the final scheme there was a specification of maximum and minimum number of vehicles viz., 18 and 10 and the maximum and minimum number of daily services, viz., 10 and 3. It was contended that there was such a great disparity between the maximum and minimum number of vehicles and daily services that there was a virtual modification of the draft scheme and, therefore, the procedure prescribed in Section 68-C should have been followed. This contention was rejected holding that in AIR 1965 SC 1848 it was explained that it was not possible to lay down specifically at what stage the minimum and maximum would turn into fraud but it is only when the gap is so great that it amounts to fraud on the Act, that it will be open to a Court to hold that the scheme was not in compliance with Section 68-C and is hit by Section 68-E. It was further held that the gap between the minimum and maximum would depend on a Dumber of factors, particularly on the variation in the demand for transport at different seasons for the year and that a variation from 6 to 12 or 5 to 9 can hardly be of such an order as to amount to fraud on the Act. It was also held that the observation with respect to fixing the minimum and maximum number of vehicles and trips in the scheme made in AIR 1964 SC 962 must be treated as obiter.

In the case of Shaik Ali v. State of Andhra Pradesh, AIR 1966 Andh Pra 42, objections to the draft scheme were made on various grounds including the ground that the Corporation had not shown how if they run 3 buses on the route instead of the objectors running 4 buses, it would amount to providing efficient, adequate, economical and properly co-ordinated transport service. These objections were rejected by the. Minister and the draft scheme was approved on the ground that on the data placed before him by the Corporation, he was satisfied that no inconvenience would be caused to the public as the sittingcapacity of each of the buses of the Corporation is more than the buses of the private operators and that no member of the public and no society or body interested in public welfare chose to prefer objection.

It was also contended that fixation of minimum and maximum number of vehicles and trips was in contravention of Rule 4 (equivalent to Rule 3 in these cases) which required the precise number of vehicles and trips to be stated in the scheme. Both the contentions were rejected and it was held that a fixation of minimum and maximum does not per se vitiate a scheme nor was it in contravention of Rule 4 inasmuch as if the minimum number satisfies the normal requirements in a given case, the fact that the maximum number is also fixed does not affect the validity of the scheme, because that would ensure more flexibility and adjustability in meeting the fluctuating needs of the travelling public and that the question is not to be treated as an arithmetical problem or as an exercise in semantics. The requirement as to particulars is not intended to allay imaginary fears or un-reasonable doubts of disgruntled operators, but to enable affected parties to lodge genuine objections and bona fide representations to show that the scheme does not subserve the public interest.

In the case of A. Vishwanath Rao v. State of Mysore AIR 1968 Mys 104, it was contended that the approved scheme was not in accordance with Section 68-C since ft omitted to provide facilities for passengers travelling from places outside the nationalised route and that such omission would result in inconvenience to such passengers inasmuch as they would have to come in private buses up to the nationalised route and would have to wait for interminably long periods before they could ever hope to travel in the buses proposed to be operated by the State Transport Undertaking, and that the result would be that the nationalised transport service was improperly co-ordinated, inefficient and detrimental to the public interest. This contention was rejected on the ground that the question of efficient, adequate, economical and properly co-ordinated service must be judged between the two termini between which the nationalised route lies and any inconvenience caused to passengers performing the Journey from points outside the nationalised route cannot afford ground for a challenge to the scheme.

In the case of K.S. Achuthan v. State of Mysore, AIR 1969 Mys 215, it was contended that the approved scheme was neither efficient, nor economical nor adequate and not at all a properly co-ordinated scheme on the following grounds :

(i) Due to exclusion of private operators from the nationalised route, portions of the routes for which the private operators had permits to ply their vehicles overlapping the nationalised routes, could be taken out from the private oeprators and only portions outside the nationalised routes could remain for the private operators to ply their vehicles and as a result passengers would have to travel in some cases first by private bus for some distance, then get down and board a Corporation bus for some distance on the nationalised route and then again get down and to board again a private bus to reach their destination. This is contended to be the best illustration of non-co-ordination (ii) The approved scheme could not work economically as the fare to be charged by the nationalised service was much higher per mile than the fare being charged by the private operators, (iii) The nationalised service would not be efficient because the Corporation which operated its transport service in another area which was nationalised, though the approved scheme specified that the Corporation would operate a minimum of 174 vehicles, the Corporation had reduced it to 100 which showed that the Corporation was incapable of operating an efficient transport service.

All these contentions were rejected. Relying upon the Supreme Court decision reported in AIR 1966 SC 1661 it was held that the element of co-ordination could exist notwithstanding the fact that for a passenger who has to perform a journey from a point outside the nationalised route, has, on the overlapping portion of the nationalised route, to perform a journey in a Corporation bus, then has tofet down and change the bus and that 68-C when it speaks of a properly coordinated service does not insist upon a scheme which enables such passengers to perform continuous journeys in the vehicles operated by the private operators. The Chief Minister had relied on the aforesaid Supreme Court decision to reject the objections. With regard to the contention regarding the approved scheme not being economical inasmuch as the fare to be charged by the Corporation was much higher than that charged by the private operators, the Court held that theChief Minister had rejected that contention after adopting a judicial approach and, therefore, that contention cannot be entertained- It was also held that the fare charged by the operators is not a decisive factor since a transport service which charges a higher fare but affords a better service and enables the passenger to reach his destination safely and without delay may, in the circumstances, be more economical from the point of view of the passengers than a transport service which charges a lower rate out is undefendable or is not sufficiently comfortable.

Since the Chief Minister considered the contention and rejected it, the argument cannot be raised at the High Court, since the Court cannot sit in appeal over the conclusion of the Chief Minister and cannot reverse it, even if it could take a different view. Regarding the allegation of inefficiency against the Corporation on the basis of its performance on another nationalised scheme, the Court held that the past performance of the Corporation cannot have any relevancy in judging the efficiency of the disputed approved scheme. Even though the Chief Minister had not referred to the Corporation's past performance, the Court held that it could not interfere since there is no doubt that the Chief Minister rejected the objection. Certain statistics for the first time were made available to the High Court which had not been put before the Chief Minister. High Court refused to consider those statistics and referred to the conclusion of the Chief Minister that while on one hand the Corporation sub milted statistics to show operational efficiency on the basis of the operating ratio, the objectors, apart from making a bald statement that the scheme did not provide for an efficient system, had not been able to place operational statistics quoted by the Corporation.

In view of these long catena of decisions dealing with every aspect of the objections raised by Mr. Rath to the schemes) --both draft and approved--and in view of the judicial approach of the Minister to all such aspects of these contentions those objections must be overruled as not having the effect of nullifying the scheme. The contention No. 2 must therefore, fail.

8. The contention No. 3 is that the approved scheme does not provide for efficient, adequate, economical and properly co-ordinated road transport service and is not in public interest. It violates Articles 14 and 303 of the Constitution.

It is argued in this connection that in the absence of prescribed particulars in the draft scheme the approving authority could not have made any intelligent assessment of the scheme keeping in view the basic objective prescribed in Section 68-C of the Act. Particulars regarding amenities as required by Rule 3 of the Rules have not been furnished in the draft schemes. According to the petitioners they have 216 vehicles including stage carriages and contract carriages plying on whole or portion of the nationalised routes. As against that the scheme has made provision only for five additional stage carriages. It is argued, therefore, that due consideration has not been given to the requirements of travelling public. From the scheme it appears that the notified route will be operated by the O. R. T. Company to the exclusion of all other operators of the stage carriages and contract carriages on the whole or part of the route. Out of 216 vehicles operated by private operators, 171 are contract carriages out of which 65 have permanent permits. The schemes do not make any provision for contract carriages at all. Col. 7 of the draft scheme requires that the number of vehicles intended to be kept in reserves to maintain the service and to provide for special occasions have to be stated. As against this column it is mentioned, 'One or more according to necessity. Buses on contract or reservation basis as per rules shall be provided according to traffic demand'.

It is clear, therefore, that the scheme does not make any provision for contract carriages freely available to be hired by the intending passengers. Thus, provision of 'one or more' buses does not constitute an efficient, adequate and properly coordinated transport service in place of 171 contract carriages operated by private operators. Further, as there has been no arrangement made in the scheme for plying buses over feeder routes and as the feeder routes cover a part of the nationaliised route, it would cause unnecessary harassment to the travelling public. The private operators who have permits granted in their favour to operate stage carriages over the feeder routes would be unable to ply them being excluded from a portion of the nationalised route which is a part of such feeder routes and permits granted in respect of them would be rendered inoperative. All these lacunae show that the approved scheme is not in public interest.

As already held, essential particulars as required by law have been furnished in the approved scheme. Four requirements of Section 68-C of the Act have to be applied and tested in relation to the nationalised route and not in relation to its effect on any feeder route. The appropriate authority, who in this case is Minister of Transport, has applied his mind to the particulars given in the draft scheme and has been satisfied that all the four requirements of the section have been fulfilled. The order of the Minister shows that he applied his mind and came to the conclusion that the scheme provided for an adequate, efficient, economical and properly co-ordinated transport service. This is a finding of fact and cannot be interfered with unless such finding is based on no evidence or is without any substance. The final approval of the scheme by the State Government under Section 68-D (2) of the Act after hearing the objections and publication of the same in the Official Gazette under Section 68-D (3) would raise a rebuttable presumption that the scheme has been found to have provided efficient, adequate, economical and properly co-ordinated transport service. The Supreme Court in the case of Capital M. P. Co-operative Societies v. State of M. P. (AIR 1967 SC 1815) (supra) has said:--

'In the absence of a provision requiring an express finding in these two sections it seems to us that the very order of the State Government or the authority appointed by it to hear objections must be held to mean either, where the scheme is approved or modified, that it subserves the purposes mentioned in Section 68-C, or, where it is rejected, that it does not subserve the purposes. Section 68-D (2) does not require in our opinion any express finding, and even if there is none in the present case, it would not invalidate the orders passed by the authority hearing the objections.........'

They further said in the concluding paragraph of the judgment:--

'..... It is true that Section 68-C requiresthat the scheme should be in the public interest. But unless the scheme is shown not to be efficient, adequate, economical and properly co-ordinated, it will in our opinion generally follow that it is in the public interest .....'

The onus of proving that the scheme will not serve the public interest lies on the objectors. Such an onus has to be discharged before the competent authority hearing the objection under Section 68-D. As already stated, the petitioners who were objectors merely filed their objections and were heard by the competent authority. As such, the onus has not been discharged in the present case. The averment of the petitioners that they have 216 vehicles including stage carriages and contract carriages on the nationalised route has been specifically denied in para. 22 of the counter-affidavit and Paras. 3 and 18 of the reply affidavit of opposite party No. 1. On the nationalised route, Cuttack-Berhampur, only 6 vehicles having temporary contract carriage permits had the authority to ply and those vehicles bear serial Nos. 88, 110, 117, 143 and 149 of Annexure-11 of O. J. No. 1660/78 and the scheme in question has provided five additional stage carriages in place of this with three round trips and a provision for one contract carriage. The counter-affidavit of opposite party No. 1 will show that an assessment of traffic survey was made and ultimately the requirement was assessed at the aforesaid number and the assessment has been held by the Minister to be sufficient in the public interest.

The scheme provides for one carriage to be kept to be taken on contract and more number of contract carriages will be provided depending upon the requirement of the public. It is, therefore, not true to say that the scheme does not make any provision for contract carriages at all. The contention is that in consequence of nationalisation of the route in question, feeder routes overlapping a part of the nationalised route should be left out and, as no provision has been made in the scheme in respect of feeder routes or, in the alternative, in absence of making any appropriate exemption to the extent of reasonable distance over the nationalised route, so that the travelling public covering feeder routes should not be harassed, the scheme is not in public interest. Feeder route has not been defined. The dictionary meaning of the expression 'feeder route' is routes branching out from a particular point from the nationalised route and ending at some other destination. This 'feeder route' does not come within the purview of the scheme. It is always open to private operators to operate on all feeder routes without covering any portion of the nationalised route. As appears from para. 9 of reply affidavit of O. P. No. 1 it has been operating on the feeder routes. The element of co-ordination would exist notwithstanding the fact that a passengerwho has to perform a journey on a route other than the notified route, has, on the overlapping portion of the notified route, to perform a journey in a bus of the O. R. T. Company. Section 68-C of the Act dors not insist upon a scheme which enables such passengers to perform continuous journeys in the stage carriages operated by private operators. This line of argument was rejected by the Supreme Court in the case of C. P. C. Motor Service v. State of Mysore, (AIR 1966 SC 1661) (supra) already referred to in the following words :--

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

This view was also acted upon in K.S. Achuthan's case AIR 1969 Mys 215 (supra). As appears from the order of the Minister the validity of the approved scheme was not attacked on the ground of lack of efficiency or of having failed to provide properly co-ordinated road transport service. What was contended before the Minister was that the O. R. T. Company is not financially sound to implement the scheme of nationalisation and in view of its past lapses the said company would not be able to provide an efficient, adequate and properly co-ordinated transport service.

The argument that the Company is not possessed of such number of vehicles and resources to provide efficient, adequate, economical and properly co-ordinated transport service is unsustainable. The O, R. T. Company is a State Transport Undertaking controlled by the State Government and Central Government and in that view of the matter a charge of lack of resources cannot be levelled against the Company. The financial position of the State Transport Undertaking in question and its past lapses are not relevant. The Minister rejected the representations of the operators relying upon a passage from the judgment of the Supreme Court in the case of Capital M. P. Co-operative Societies v. State of M. P. (supra). That passage runs thus :--

'It will thus be clear that nationalised road transport under Chap. IV-A would be run either by the Central Government, or a State Government or any of the other three authorities mentioned there which are all under the control of the State Government or the Central Government. In these circumstances, with the resources of the Government behind those authorities it would in our opinion be futile for any objector to say that the Central Government, the State Government or the authorities backed by it could not have equipment and finances to carry out the schemes. It seems to us that the very fact that a scheme is proposed suggests that the Central Government or a State Government or the authorities would carry it out. So there is no question of asking for production of documents relating to the equipment and financial position of a State Transport Undertaking as defined in Section 68-A (b).'

In view of the unlimited financial backing of the State and Central Governments, the provision in the approved scheme of increasing the number of stage carriages or contract carriages depending on the need of the public cannot be a ground of inadequacy of service.

The petitioners' further contention is that exemption given to holders of All India Tourist permits and All Orissa Tourist permits, while not exempting inter-district permit holders amounts to violation of Article 14 of the Constitution. This contention has no substance. There is no provision for grant of inter-district tourist permits under the Act and Rules framed thereunder. The holders of All India Tourist permits and vehicles operating on interstate routes on reciprocal agreement basis are categories which are different class altogether from tourist permits inside the State of Orissa inasmuch as their operation relates to inter-State routes which cannot be affected by an approved scheme under Section 68-D unless previous approval of the Central Government is obtained. All India Tourist permits are recognised as a separate class under Orissa Tourist Vehicles Rules, 1964. Therefore, exemption given to All India Tourist permits and All Orissa Tourist permits, while not exempting inter-district tourist permits, would not be violative of Art, 14, there being no discrimination but only a reasonable classification. For the aforesaid reasons the contention No. 3 fails.

9. As regards contention No. 4 it comprises of two parts. The first part is thatthe Company is not possessed of sufficient number of vehicles to provide an efficient, adequate, economical and properly coordinated transport service, and the second part is that the Company is not possessed of resources also to provide such efficient, adequate, economical and properly co-ordinated transport service. Second part of this contention has been dealt with while dealing with contention No. 3 and does not require repetition. As regards first part, it is stated in the writ petitions that the O. R. T. Company was operating 300 routes with 260 vehicles, out of which a large number were worn out and old and that they did not comply with provisions of Chapter V of the Act and rules and that they did not obtain fitness certificates, and that while 85 buses were added to the fleet, 39 were deleted by sale or condemnation and out of 305 vehicles 85 were superannuated.

These averments have been specifically denied by O. P. No. 1 in its counter. As stated at the time of hearing of the objections, the Company was operating 159 routes requiring 248 buses daily, whereas it had a fleet strength of 323 vehicles and those vehicles had got fitness certificate and had complied with all the requirements of the Act and the M. V. Rules. That strength has now been augmented to 332. The record of service of the company as regards punctuality in departure and arrival was quite satisfactory and creditable. Factually, therefore, there is no basis for this argument. That apart, the fact that the State Transport Under taking is not possessed of sufficient number of vehicles is not a relevant consideration for judging whether the scheme satisfies the tests under Section 68-C or Section 68-D and Rule 3 of the Rules.

10. As regards contention No. 5 which essentially raises the question of denial of opportunity of hearing and violation of rules of natural justice, it is submitted after referring to the order-sheet of the Minister, particularly to orders dated 18-4-78, 2-5-78 and 11-5-78, that the O. R. T. Company having been allowed to file their affidavit on 11-5-78, the objectors should have been given opportunity to file their replies. But instead of adjourning the hearing to some other date for affording opportunity to the objectors to file their replies to the affidavit of the Company filed on 11-5-78 or to make their submissions on such affidavits, the hearing was closed on 11-5-78. The order dated 11-5-78 shows that the Minister allowed the O. R. T. Company to file rejoinder affidavit within 7 days to the affidavits filed by some of the objectors on 11-5-78. Thus, having enlarged the time for the Company to file rejoinder the Minister should not have closed the hearing on 11-5-78. The petitioners filed their rejoinder on 18-5-78 to the counter-affidavit of O. R. T. Company filed on 11-5-78.

This rejoinder was received by the Minister on 19-5-78. Petitioners contend that while the counter-affidavit of the Company was accepted and referred to in the final order of the Minister, the rejoinder of the petitioners dated 18-5-78 was ignored on the ground that it was filed without any orders to that effect Further, the petitioners also filed an application on 18-5-78 requesting the Minister to accept the rejoinder and for affording some opportunity to advance further argument. This application was ignored on the ground mat it was not filed in response to any order of the Minister. Thus, not only the procedure envisaged in Section 68-D (2) of the Act but also rules of natural justice inherent in the scheme of the statute have been violated.

Section 68-D of the Act entities an objector to file objections to the scheme published under Section 68-C. Reading Sections 68-C and 68-D of the Act together it is clear that within 30 days from the date of publication of the scheme under Section 68-C persons enumerated in Section 68-D (1) can file their objections to the State Government who, thereafter, will consider those objections and would give an opportunity to them or their representatives, if they so desire, to be heard and ultimately approve or modify the scheme. In the instant case the petitioners pursuant to the notification under Section 68-C filed their objections. Orders dated 18-4-78, 2-5-78 and 11-5-78 may be extracted herein below:--

18-4-78 'Heard the parties. The objectors filed applications for time for filing documents etc. This is granted. The case is adjourned to 2-5-78 (11 A. M.) for further hearing. However no fresh notice would be issued on this account. The parties are to appear without further notice.'

2-5-78 'Some objectors filed affidavits, they are linked in the file. The O. R. T. Co. representative with their advocate were present.

Hearing was made on the points raised in the affidavits. O. R. T. Co. want time to file counter-affidavits.

Kar Motor Transport sought time to file affidavit. He is allowed to do so by 8-5-78 with a copy to advocate for O. R. T. Co. So the O. R. T. Co. can file counter-affidavit if they, so like.

Baidyanath Panda filed a petition to implead Collector, Phulbani or R. T. A., Phulbani as an objector. There is no such provision and neither the Collector nor the R. T. A., Phulbani has filed objection within the prescribed time. This is rejected.

The case is adjourned to 11-5-1978 at 11 A. M. for reply by the O. R. T. Co. The objectors are to appear on that date if they so like but no fresh notice be issued.'

11-5-78 'Heard the Advocate for the O. R. T. Company. In addition the O. R. T. Co. has filed affidavits. K.N. Kar, G. Mukherjee and G. Panda also filed affidavits today. They are allowed to do so. The O. R. T. Co. can file rejoinder affidavit if they like within 7 days.

N.K.D.N.V. Prasad Rao has filed some documents. No further hearing. Orders reserved.'

On 11-5-78 the O. R. T. Company as well as some of the objectors filed fresh evidence It is true that O. R. T. Company was given 7 days' time to file further rejoinder, but as a matter of fact no further rejoinder has been filed. It will be noticed that the objectors did not make any prayer for time for filing any further affidavit or rejoinder in the case. In view of this order the Minister was justified in not taking the rejoinder of the objectors dated 18-5-78 into consideration at all. It will be further seen that this rejoinder has been filed without giving notice to the Company. The complaint that the objectors were not given adequate opportunity of hearing has no basis.

As regards rules of natural justice, it has already been stated that they Vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened, should be decided not under any preconceived notions, but in the light of the statutory rules and provisions. Where no such rules which could be said to have been contravened by a tribunal is brought to the notice of the court it is no ground for interference either under Article 226 or 227 simply because the tribunal had(viewed the matter in a light which is not acceptable to the court. (See the case of Nagendranath Bora v. Commr. of Hills Division, AIR 1958 SC 398, at p. 409). Applying these tests, petitioners' counsel have not been able to point out violation of any rules or provision of statute and, as such, the complaint that the objectors had not been given an opportunity of hearing cannot be upheld.

Then the question is whether whatever opportunity was given was reasonable or not. The Supreme Court has explained what is reasonable opportunity in the case of Fedco (P) Ltd. v. S.N. Bilgrami, (AIR 1960 SC 415) (supra) in the following words :--

'The requirement that a reasonable opportunity of being heard must be given has two elements. The first is that an opportunity to be heard must be given; the second is that this opportunity must be reasonable. Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable......There can be no invariable standard for 'reasonableness' in such matters except that the Court's conscience must be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent or even if they exist they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the grounds on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegations and all other matters which help the mind in coming to a fair conclusion on the question.....'

Applying these tests it will be seen that the petitioners were given opportunity of being heard on 3 occasions. An objection filed beyond the period of limitation for filing the objection was accepted and hearing continued for three days, viz., 18-4-78, 2-5-78 and 11-5-78, when the Minister after hearing parties closed the case for orders. It is significant that thepetitioners did not want any further time or filing any further counter-affidavit or further hearing. In that view of the matter, the filing of an application on 18-5-78 appears to be an afterthought for the purpose of making out a case of violation of principles of natural justice in this Court. There are no inflexible rules of natural justice of universal application as held in the case of Bharat Barrel and Drum Mfg. Co. v. L.K. Bose (AIR 1967 SC 361) (supra). The Court has to consider in each case whether in the light of the facts and circumstances of that case, the nature of the issues involved in the enquiry, the nature of the order passed and the interests affected thereby a fair and reasonable opportunity of being heard was furnished to the person affected'. Their Lordships approved the dictum of Lord Parmoor in the case of Local Govt. Board v. Arlidge, 1915 AC 120, which was expressed in the following words :--

'Where, however, the question of procedure is raised in a hearing, before some tribunal other than a court of law, there is no obligation to adopt the regular forms of judicial procedure. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice. In determining whether the principles of substantial justice have been complied with in matters of procedure regard must necessarily be had to the nature of the issue to be determined and the constitution of the tribunal.'

Applying this dictum to the facts of the present case, we have no doubt in our mind that there has been no violation of principles of natural justice nor have the petitioners been deprived of any reasonable opportunity of being heard.

Annexures 6 and 7 in O. J. C. 1660 of 1978 which were purported to have been filed by the petitioner on 18-5-78 and received by the Minister on 19-5-78 were not taken into record and considered. The prayer in one of those petitions for further hearing could not also be considered as the hearing had already been closed on 11-5-78. In this connection the affidavit of the State Government may be referred to. In paragraph 5 thereof it has been specifically averred that on 11-5-78 when the Minister passed orders none of the petitioners who were objectors before the Minister wanted any further hearing. The complaint of want of reasonable opportunity is obviously an afterthoughtThis contention, therefore, has no merit and tails.

11. As regards the 6th contention it is argued that the objections relating to the adequacy of the scheme in the light of the objective set out in Section 68-C have been summarily rejected without considering the same on merit and substantial objections have been rejected on irrelevant considerations. The Minister appears to have been obsessed with the idea of establishing socialism and equi-distribution of national wealth providing thereby a higher percentage of employment and that whenever private operators enter the field whereby an unhealthy competition with the Government or para-Government transport services raises its head to the latter's detriment, the routes, where such a competition comes to play, should, as a policy, be nationalised. These considerations on the part of the Minister, it is contended, vitiate the Miniser's order. Para. 7 of the Transport Minister's order in this connection is referred to, Para 8 of the impugned order is objected to in as much as it rejects the objection relating to financial soundness of the O. R. T. Company as non-maintainable. Para 11 of the Minister's order is also attacked on the ground that the Minister has rejected the objections of R. T. A., Ganjam and R. T. A., Phulbani on the ground that they have no locus standi to object.

Non-consideration of the objections of the R. T. A., Ganjam and R. T. A., Phulbani when those objections were on the record and constitute a relevant material in support of the objections affects the soundness of the Minister's order. Similarly, para 12 of the Minister's order is impeached on the ground that the objection relating to wide variance between the maximum and the minimum number of buses provided under the scheme has been rejected summarily. For the selfsame reason rejection of the objection relating to fraud on Sections 68-C and 68-E of the Act has been impeached. If the Minister was satisfied with the assurance given by the Company to put in more buses whenever required, he should have modified the scheme to that effect. Rejection of the objection relating to absence of any provision in the scheme for contract carriages has been attacked as arbitrary. Para 19 of the order of the Minister wherein vehicles having All India tourist permits and All Orissa tourist permits have been exempted from the operation of the scheme, while the vehicles having inter-district tourist permits have not been exempted, amounts to gross discrimination. Referring to para 24 of the Minister's order it is argued that non-provision in the scheme for plying vehicles on feeder routes and non-exemption of feeder routes in the scheme affects the legality of the scheme as for such omissions the scheme does not ensure adequate and properly co-ordinated transport service.

The Act or Rules framed thereunder nowhere enjoin upon the State Government, in this case the Minister of Transport, to give detailed reasons in support of the conclusions while considering the objections under Section 68-D (2) of the Act. The Supreme Court has laid down the law as to scope of interference with such an order of the competent authority in a number of cases. In the case of H. C. Narayanappa v. State of Mysore, AIR 1960 SC 1073, it has been held that -

',... The guarantee conferred by Section 68-D of the Motor Vehicles Act upon persons likely to be affected by the intended scheme is a guarantee of an opportunity to put forth their 'objections and to make representations to the State Government against the acceptance of the scheme. This opportunity of making representation and of being heard in support thereof may be regarded as real only if in the consideration of the objections, there is a judicial approach. But the Legislature does not contemplate an appeal to this Court against the order passed by the State Government approving or modifying the scheme. Provided the authority invested with the power to consider the objections gives an opportunity to the objectors to be heard in the matter and deals with the objections in the light of the object intended to be secured by the scheme, the ultimate order passed by that authority is not open to challenge either on the ground that another view may possibly have been taken on the objections or that detailed reasons have not been given for upholding or rejecting the contentions raised by the objectors.'

The Supreme Court in the case of Sarjoo Prasad Singh v. State of Bihar, AIR 1977 SC 24, has said :--

'Approval and modification of the scheme indicates that the scheme is efficient and adequate. No finding of fact is necessary on each and every separate objection.'

B.C. Narayanappa's case (supra) was followed in M.S. Sadananda v. State of Mysore, AIR 1969 Mys 319, in the following words:--

'In writ petitions like those before us ft is not within our province to examine whether on the materials which were available before the Chief Minister it was possible for him to reach a conclusion different from the one which he reached and as pointed by the Supreme Court even if the Chief Minister did not embark upon a sufficiently detailed discussion of the questions which he had to decide or of the arguments which were advanced before him, it would not be possible for us to disturb the decision reached by him.

xx xx xx xx Unless it is possible for the petitioners to point out some infirmity in the proceeding before the Chief Minister which vitiated that finding, they could not ask us to quash the scheme on the ground that there was no discussion of all the arguments advanced before the Chief Minister in sufficient detail. The limited question with which we are concerned is, whether the objections were considered and dealt with in the light of the object intended to be secured by the scheme and the order made by the Chief Minister demonstrates that there was such consideration of those objections. For the mere reason that the ultimate order does not incorporate detailed reasons which supported the conclusion, would not be a ground as explained by the Supreme Court in Narayanappa's case, AIR 1960 SC 1073 for the demolition of the order made by the Chief Minister.''

The Allahabad High Court in the case of U. P. State Road Transport Corporation v. Mahavir Singh, 1977 Transport and Acc Cas 152, has said that the scope of enquiry under Article 226 in respect of adjudication made under Section 68-D is a limited one in the sense that an order passed under that provision is not liable to be struck down on the ground that another view is possible on the question of adequacy.

It will appear from para 6 of the order of the Minister that the main objections raised by the objectors have been summarised and the grounds on which those objections have been sought to be founded have also been noticed in para 7. Considering them in the light of the judicial decisions the Minister has come to The conclusion that the objectors havefailed to discharge the onus of proving that the scheme is not a properly coordinated scheme. Thus, it cannot be said that the order of the Minister is without jurisdiction or is in any way vitiated. In para 8 of his order the Minister has dealt with the objections regarding financial condition of the State Transport Undertaking and has rejected that objection rightly in view of the fact that the Company is owned and controlled by the State Government. Here again the Minister has relied upon judicial decisions.

As regards the objections filed by R. T. A., Ganjam and R. T. A., Phulbani the Minister has rightly rejected them on the ground that they are not competent persons to object. Section 68-D enumerates the category of persons who are entitled to file objection on the publication of a scheme in the Official Gazette within a stipulated period. R. T. A., Ganjam and, R. T. A., Phulbani do not come under any category of persons enumerated therein and on that ground the Minister rejected their objections in limine. Rule 6 of the Rules which is procedural provides for filing of objection to the scheme published under Section 68-D, by any person concerned or authority aggrieved by the: scheme. The rule cannot enlarge the category enumerated in Section 68-D of the Act, The legislative changes of 68-D (1) leads' to the same conclusion. The provision prior to its amendment by Act 56 of 1969 was to the following effect:--

'(1) Any person affected by the schema published under Section 68-C may within 30 days from the date of the publication of the scheme in the official Gazette file objection thereto before the State Government.'

The term 'any person' was wide enough to include all categories of persons and as that would throw open the door to innumerable objections resulting in a protracted proceeding it was thought necessary to restrict the category of objectors, and Section 68-D (1) was amended limiting the category of persons entitled to object. Rule 6, however, provides that any person or authority may object but it cannot over ride the section, as rules have been fram ed for carrying into effect the provisions of Chap. IV of the Act. The Minister apparently considered Rule 6 harmoniously with Section 68-D. Thus, when the Minister rejected the objections of R. T. A. Ganjam and R. T. A., Phulbani on the ground that they are not competent to object, their objections are not relevant and non-consideration of such objections cannot be a ground for impeaching the Minister's order. It was also argued that R. T. A. would be a 'local authority' within the meaning of Section 68-D (1) (iii) of the Act. The term local authority' has not been defined in the Act. Therefore, applying the definition of the said term in the General Clauses Act, the R. T. A. will not come Within its ambit. Thus, if R. T. A. does not come within the category of persons to object, under Section 68-D (1), the Minister was justified in refusing to take into consideration those objections. An objection has been taken to the Minister's order that he has issued direction to the O. R. T, Company to take over all feeder routes but the said direction has not been carried into effect. This objection was based on the counter-affidavit of the State wherein the term 'feeder route' was said to include all muffasil routes like Berhampur Gopalpur etc. which overlap a portion of the nationalised route. But the Minister has not accepted that meaning of the term 'feeder route'. On the contrary, and in our opinion rightly, 'feeder route' has been held to mean routes branching out from different junctions on the main route to be nationalised. In this view of the matter there has been no infraction in the publication of the final scheme.

12. With regard to the 7th contention it is argued that the Minister of Transport having initiated and inspired the scheme as a Minister and having thereby prejudged the matter is disqualified from hearing the objection to the scheme.

These allegations of fact made in para 20 of the writ petition in O. J. C 1660 of 1978 have been denied in the affidavit of the Secretary to the Government in the Transport Department. Such an allegation had never been made in any of the objections filed before the Minister under Section 68-D, nor was it canvassed before him during hearing of the objections. Whether a charge of bias and mala fide can be levelled against a Minister who might have some control over the State Transport Undertaking had come in for consideration in various judicial decisions including that of the Supreme Court. The State Government or any other authority authorised by it deciding a dispute under Section 68-D (2) between State Transport Undertaking and the objectors discharges only its statutory function. In the case of J.Y. Kondala Rao v. Andhra Pradesh State Road Transport Corporation AIR 1961 SC 82, it has been held that even though the concerned Minister presides over a sub-committee constituted to implement the scheme of nationalisation that by itself would not be sufficient to establish that he was actuated by any personal bias so as to disqualify him from hearing the objection. To prove personal bias there must be reliable evidence adduced by tie parties. There is no such proof in this case. The identical point came in for consideration by the Supreme Court in H.C. Narayanappa's case (AIR 1960 SC 1073) (supra). Their Lordships said:--

'The plea that the Chief Minister who approved the scheme under Section 68-D was biased has no substance. Section 68-D of the Motor Vehicles Act undoubtedly imposes a duty on the State Government to act judicially in considering the objections and in approving or modifying the scheme proposed by the transport undertaking. ...... It is also true that the Governmenton whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government.....'

This principle has also been subsequently followed in the case T. Govinda raja Mudaliar v. State of T. N., AIR 1973 SC 974.

Even if the State Government determines earlier the policy of nationalisation in the scheme of transport service yet that would not amount to bias so as to disqualify the concerned Minister from hearing the objection under Section 68-D or according approval of the scheme (see the case of K.S. Achuthan v. State of Mysore, AIR 1969 Mys 215). In this connection it is further contended that the Minister has not filed any affidavit refuting these allegations of bias. Where there is personal allegation of malice, the person concerned is to file an affidavit. In this case there was a personal allegation against the Minister and he has denied the same in an affidavit. The other allegations of bias being not personal in nature they have been denied by the Secretary to the Government by an affidavit. For all these reasons this contention has no substance and fails.

13. The contention No, 8 has been raised by the petitioner in O. J. C. No. 1737 of 1978. It comprises of two parts. The first part is that omission to provide buses in the sectional or feeder routes while nationalising the main route in the approved scheme will result in public hardship and cannot be considered to be in public interest. This contention has been noticed earlier and has been rejected on the footing of various decisions already cited. For the selfsame grounds without repeating the same, this contention is rejected. The second part of the contention 4s that he had filed an objection to the draft scheme on 29-1-78 (Annexure 8 of O. J, C. 1737/78), but was given no opportunity of being heard under Section 68-D, and thereby rules of natural justice have been violated. There is not a single relevant ground in Annexure-8 envisaged under Section 68-C of the Act tending to show that the draft scheme does not provide efficient, adequate, economical and properly co-ordinated road transport service or that such a scheme is not in public interest. All that he tried to urge was as to how he was personally affected financially if nationalisation took place. In the circumstances, it would have been fruitless to have given him any special opportunity of being heard on his irrelevant objection- As the Minister's order-sheet would show, adequate general opportunity was given to all concerned. Thus, this part of the contention has equally no merit.

14. In result, all the contentions having failed the batch of writ applications are dismissed with costs assessed at Rs.100/- (one hundred) in each writ application. The order of stay is vacated.

Writ petitions are dismissed with costs.

Das, J.

I agree.


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