G.M. Lodha, J.
1. The nationalisation of the Bus Transport have always flooded the writ jurisdiction, commencing from Motilal's case of Uttar Pradesh, which ultimately sparked off constitutional debate leading to constitutional amendment; but the end of which is not yet in sight after 3 decides of legal battles. The constitutional umbrella of inclusion of the Motor Vehicles Act in 9th Schedule of the Constitution also proved insufficient to provide immunity from judicial review of schemes of nationalisation under the Act. Every fresh theme of Nationalisation, invariably leads to opening of fresh legale battle fronts, as the war of nationalisation is unending and every expanding, the basic reason being it is primarily a 'Socio Economic' issue and the law comes at the tail end. affulent and resourceful bus operators of Alwar District not satisfied with the 'judicial review' of this Court in Premchand Vyas and other operators (Bench of 9) cases judgment, have revived the same legal debate by paraphrasing the same submissions with more vigour and sustained effort, as the present bunch would decide the fate of 91 bus operators. However, in substance this is nothing but putting 'old wine in new bottle'.
2. With the above preface, let me mention the short facts, relevant to the controversy in general, as all the learned Counsel of the parties have prayed that the points involved being common all these cases should be disposed off by one common judgment.
3. The writ applications are 91 and the details of names and numbers are in the list enclosed as Schedule A to this judgment. They have been filed by the various bus operators, who feel aggrieved by the nationalisation of a number of routes in the various schedule in relation to Alwar District of the Jaipur region in Rajasthan.
4. These schemes are:
(i) Alwar--Tijara--Bhiwadi via Bhadurpur Kishangarb has, Paldia, Tijara, Tapukra, Tatapur.
Alwar-Jaipur via Malakhera, Rajgarh, Baswa, Bandikui, S kandra, Dausa.
Alwar-Behror via Jindoli, Tatapur, Sodawas Bardaud.
(ii) Alwar- Reni via Malkhera, Rajgarh, Kacheri, Alwar-Prathvipura via Malakhera, Rajgarh Laxmangarb via Machedi, Pinan
(iii) Kaerthal Koikanm via Kishangarbbas
K(sic)shangarbhas Bilari via Tijara
Kotha(sic)-Bhilari (Raj. Boarder) Tijara
Nomli (Raj. Boarder) via Bhagore.
Kherthal-Sodawas via Hirsoli, Mandawar
Kherthal--Bansoar via Tatapur, Choraya, Hamirpur
Bensoo Rampur via Bhusodi, Mund(sic)i.
Kherthal- Ismailpur via Dadarbera.
(iv) Alwar-Kherthal via Chikani, Bahadurpur, Kishangarh bas, Kotiputli-Alwar via Bansobr, Tarapur Choray Bansoor-Dabla via Kotputli-Patan.
(v) Jaipur-Deeg via Rarogarh. Sainthal, Rajgarh, Kalakhera-Nagar. Deeg-Bahaj. Bharatpur-Kherli via Kumher, Nadbai, Pahari-Nadbai via Nagar.
5. The draft schemes of above under Section 68 (c) of the Motor Vehicles Act, 19(sic)9 (hereinafter called as the Act) were published in the year 1976 on different dates, which are not in dispute. All these schemes were then considered by the Joint Legal Remembrancer (II) Government of Rajasthan Jaipur and were approved though on different dates, but in the same year 1978. All there schemes except Jaipur-Deeg were published as approved schemes en 1/2/79. The Jaipur Deeg scheme was approved and published on December 20, 1978. In Jaipur Deeg, scheme the Corporation started implementing it on 28-12-78 and in all other cases, the implementation is being done w.e.f February 9, 1979.
6. The petitioners are existing operators either on part of the above nationalised routes or on routes which are adversely effected indirectly by the above nationalisation.
7. Since the matter relating to the nationalisation of the above Bus Road Transport relates back to as early as Motilal's case of Allahabad High Court of Fifty's AIR 1951 Allahabad 257 which ultimately led to the Constitutional First Amendment of 1951, I would first like to consider the scope of judicial review under Article 226 of the Constitution in a challenge to either draft schemes or approved schemes or implementation of the approved schema of the nationalisation.
8. Chapter IV A contains special provisions about the State Transport Undertakings, in Section 68 A, 63 B, 68 C, 68 D, 68 E, 68 F, the principal provisions being 68 C and 68 D of the Act of 1939. This Chapter IVA was introduced by the Central Act No. 100 of 1956 and has undergone various amendments by the Central Act No. 56 of 1969 in addition to the State amendments in forum of Section 68CC in Rajasthan and similarly at various other places. The bus operators being prosperous business (sic) have agitated and got almost important schemes of nationalisation tested even to the minutes details, upto the highest courts and therefore, these is good number of case deciding the various aspects of the power of judicial review in such cases by the High Court under Article 226 of the Constitution of India.
9. On a plain reading of Chapter IV A mentioned above, it would appear that the State Transport Undertaking in the principal organisation which has to initiate the schemes of nationalisation of the road transport services. This chapter starts with a 'non-obstente' Clause in the form of Section 68 B which mentions that this Chapter, and the rules and orders made there-under shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of the Act or any other law for the time being in force or any instruments having effect by vi(sic)ture of any such law.
10. Then comes 68 C that mentions four fold points of efficiency adequacy, economical and co-ordination, as the objects and the consideration on the basis of which a decision is to be taken by 'State Transport Undertaking' to either partially o wholly nationalise routs or portion thereof, by providing services by 'State Transport Undertaking' either tithe complete exclusion or partial exclusion of other persons. If on fou(sic)fold points mentioned above, the Undertaking is satisfied then it would prepare a scheme and publish it in Official Gazette. Then comes the provision transport facility by any means along or near the area of route proposed by scheme. Such objections can also be filed by any association representing persons interested in providing of the road transport facilities recognised by the Government or local authority, or by police authority affected by the scheme and this has to be done within thirty days of its publication. Then comes Sub-section (2) of Section 68 D wherein the State Government is required to consider the objections and that can be done after giving opportunity to the objector and the Undertaking of the bearing. Thereafter, the State Government may either approve the scheme or modify the same. On an approval of the State Government, the scheme is published again in the Official Gazette as approved or modified and then it in called 'approved scheme' and the area of route to which it relates is called 'notified route' under Sub-section (3) of Section 68D. In cases of 'Inter State Routes' such approval can be done only with the previous approval of the Central Government Section 68 E provides the provision of cancellation or modification of such schemes but in the present bunch of cases since it has got no relevancy, I am avoiding any references or any discussion about for the sake of conciseness and precision.
11. Mr. Rajnarain Munshi, who raised preliminary objections to the Judicial Review of all these schemes and their implications, vehemently submitted that the ambit of judicial review against the approved scheme of nationalisation is extremely narrow and limited. Both the party have agreed that the basic judgment which can be termed as 'Magna .Car(sic)a' in ration to the scope of judicial review in 'bus road nationalisation' cases is Narayanappa and Ors. v. State of Mysore and Ors. : 3SCR742 Further developments regarding the case law about the scope of judicial review according to Mr. Munshi is land ma ked by judgment in Capital Multi Purpose Co-operative Societies, Bhopal and Ors. (In C.A. No. 2201 of 1966) 2 Nirmal Motor Car Co, Indore and Ors. v. State of Madhya Pradesh and Ors. etc.: AIR 1976 SG 1815 (Para 8) K(sic) Cohuthan Proprietor, Bharat Motor Service Banglore and Ors. V. State of Mysore: AIR 1969 Mysore 215 (Head Note (a) (c) paras 4 and 5) M.S Sadananda and Ors. v. State of Mysore; AIR 1969 Mysore 319 (Para 56, 59 and 63), 1976 U.J. (SC) 844 (Para 7, 8, 9) (equivalent to AJR 1974 S.C. 24).
12. Mr. Vyas appearing for most of the petitioners added to the above that the latest decision of the Supreme Court in respect of power of the Judicial Review on the subject is contained in, Sindhi Sahiti Multipurpose Transport, Co-operative society Ltd. v. State of Madhya Pradesh and Ors. : 2SCR86 . According to him after the basic judgment of 1960 referred to above, the Supreme Court in C S Rowjee represented by Power of Attorney holder Shri C. Apparao Rowjee and Ors. In C A. No. 770 of 1963) etc. v. The State of Andhra Pradesh and Ors.: : 6SCR330 (Para 35 to 37) and the Gauhati High Court in Premadhar Barua and Ors. V. State of Assam and Ors.: AIR 1970 Assam page 1, has further dealt which on this aspect of the matter. Mr. Munshi confronted with the above submission placed strong reliance upon the judgment of the Supreme Court in Ramesh Chand etc., v. State of U.P. and Ors.: : 1SCR498 and claimed that this is the latest view of the Supreme Court.
13. Coming to the Rajasthan cases, it was pointed out by Mr. Munshi that another Bench of this Court in Premchand Vyas v. State of Rajasthan (S.B. Civil Writ Petition No. 478 of 1979) and Ors. decided on 26-6-1979 had occasion to consider all these schemes of nationalisation mentioned above and on a detailed consideration of the facts and law rejected the challenge by rejecting 19 writ petitions in limine.
14. I have given above broad out lines, of the l(sic)geal compass, within which I have to appreciate the submissions made by Mr. Vyas and Mr. Mehta for the petitioner Bus Operators, and Mr. Munshi, standing Counsel for the Corporation which received support form Mr. J.S. Rastogi, learned Government Advocate.
15. Mr. Vyas made detailed arguments in respect of Tijara-Neemli-Hariyana Feiozpur Zarkee route and submitted that all other cases are almost similar. This draft scheme of 15 kms. in length was published on 31-12-1976 and the Joint Legal Remembrancer II approved it, on 30th March, 1978 and the same was notified as approved scheme on 12, 1979 According to Mr. Vyas the implementation of this scheme has taken place only from Tajara to Neemli which is 10 1/2 Kms. route out of which 2 Kms. portion is in Municipality limits of Tajara and therefore, it is hardly 8 1/2 kms. route which has been nationalised. It is argued that the following four route have been nationalised and the number of service separately provided with number of vehicles jointly is as follow:
Name of the Length of Max. No. Min No. Max. No. Min No.route route single single of stage of stageservices services carriages carriagesKherthal Kotkasim 35 6 2Kishangarh Kotkasim 26 12 8Kotkasim Barari 10 10 6 3 2Tijar Neemli(Rajasthan Border) 15 14 10Total 86 42 26 3 2
16. As per the calculation of Mr. Vyas, 42 single services per day would operate 86 kms. on one side only, by maximum number of three stage carriages which would mean that three stage carriages would run 3612 Kms. and, each one of them would run 1200 Km per day, performing single services only. Even on calculation of minimum buses one vehicle have to run 1118 kms. Both these being impossibility, the impugned order of approval of the scheme is contrary to public interest and the four objects mentioned in Section 68 C of Act, argued by Mr. Vyas, According to his this infirmity is in all other scheme also.
17. The same submissions were made by Mr. Mehta regarding to other routes the 'data' of which are as follows:
V. Name of the route: Alwar Behror Bansur-Rampur Khairthal amalgamated route which runs into the length of 58 Kilometers.
(a) Existing Scope: 34 permits to provide 46 single trips on various sub-routes nominated below:
Alwar-Behror 22 tripsAlwar-Rampur 2 tripsAlwar-Bansur 10 tripsAlwar-Bansur 8 tripsAlwar-Khairthal 2 tripsKhairthal-Behror 2 trips46 trips(b) Distance 58 KilometersOVERLAPPING BT OTHER ROUTES:Name of the route No of vehicles No. of services of single trip(1) (2) (3)Alwar-Neemrana 3 4Alwar-Sikarveer (Bansur) 3 4Alwar Neem-Ka Thana 5 4Alwar-Kotputli 3 4Kotputli-Behior viaBansur-Harsora-Sodawas 10 20Behror-Tijara viaTatarpur Chauraha 4 4Behror-Tijara viaSodawas-Harsora 4 4Behror-Bawari via 12 12Barod, ShabjahanpurBehror-Ajarka viaSodawas 4 446 6634+46=80 46+66=112
18. Thus in all 80 vehicles performing 112 single trips have been operating on various portion of the petitioner's routes. Now the Legal Remembrancer (II) has approved the scheme of Alwar-Bansur-Ramour Kharithal route by providing the following number of vehicles as well as the services:
Length of the Max No. of No. ofScheme route route stage carriages singleprovided under servicesthe schemeAlwar-Behror58 16 5BansurRampur Khairthal
19. Mr. Vyas & Mr. Mehta, on the basis of above 'data' argued that neither the vehicles nor services are adequate as they are grossly inadequate & insufficient, the object of Section 68 C is not fulfilled by nationalisation, and therefore, these approved schemes should be quashed.
20. These submissions of Mr. Vyas and Mr. Mehta were emphatically and strongly controverted by Mr. Munshi, According to him, the entire figures given by Mr. Vyas and Mehta are based on arithmetical jugglery' and 'fallacy of logic'. It was pointed out that these routes which are four in number overlapped each other at several places and the length of route calculated by Mr. Vyas as 86 kms., if, therefore basically wrong.
21. Mr. Munshi pointed out that the Corporation Vehicles need not remain idle. They have got fleet of vehicles, and can ply any vehicle on any nationalised route. That being so, the Corporation runs the vehicles on different routes and one vehicle can cover any routes. The standard fixed by the Corporation for running each bus is 250 kms. per day and on the basis of the calculation of Mr. Munshi number of vehicles on these routes are more and the services are adequate and economic and they serve the public interest much mare than what private operators would hive done.
22. The second limb of submission of Mr. Munshi on this point was that before the Joint Legal Remembrancer neither any evidence was produced in support of the old submission which is now being made nor the question of adequacy of services as suggested now was argued In the absence of any evidence and in the absence of placing this point before the Joint Legal Remembrancer -II, the petitioners cannot be allowed to argue this point on the basis of false statistics; myth which has already been exploded by him.
23. Mr. Munshi also pointed out that it is established law that unless the point is raised before the Tribunal or authority or a Court and pressed on the basis of the data which wav supplied and given there in the form of evidence, the same Court be now allowed to be raised in the High Court under Article 226 of the Constitution of India. Reliance was placed on the judgment of the Supreme Court Bank of Bihar v. Mahabir Lal and Ors. AIR 1964 S.C. 337, in which it was held as under:
Where a statement appears in the judgment of a court that a particular thing happened or did not happen before it, ought not ordinarily to be challenged by a party unless both the parties to the litigation agree that the statement is wrong or the court itself admits that the statement is erroneous. The remedy of a party aggrieved is by way of review.
Mr. Munshi submitted that the Counsel should have filed an affidavit in this Court, in case, he wants to argue that the above facts were brought to the notice the Tribunal and the point was argued but the Joint Legal Remembrancer has failed to mention it in the judgment. This has not been done and therefore, the same cannot be allowed now in a writ application before this court.
24. Realising the above legal handicap and confronted with the above objection, Mr. Vyas submitted that he is relying only on the Gazette notification and the distances of the route mentioned therein and the figures given by him are based on the calculation and not on any jugglery as suggested by Mr. Munshi.
25. On a careful consideration of the above submission, I am of the view that detailed examination of these objections is not called for by this Court. Firstly, it was for the petitioners to have pressed this objection expressly and specifically during the arguments before the Joint Legal Remembrancer where they were heard under Section 68(2) and instead of relying on figures of distances given in some notifications here and there, they should have produced evidence there before the Joint Legal Remembrancer to show that the approval of the scheme would be against the public interest & against the object of efficiency and adequacy contemplated by Section 68 C of the Act, It is not in dispute that before the Joint Legal Remembrancer-II no such objection was pressed in any of the scheme mentioned above and except in Alwar-Tajara Bhiwai scheme, no evidence was led by the petitioners in any other case.
26. Mr. Munshi also pointed out that even in the one case where the evidence was led, discussion of evidence at page 208 to 211 in S.B. Civil Writ Petition No. 373/79 (Ghamandilal v. State of Rajasthan) would show that the Joint Legal Remembrancer II relying upon the statement of Dashrath Kumar and admissions contained therein has repelled any apprehension of any indequacy of services or public interest being effected adversely by the scheme. I find substantial force in the submission of Mr. Munshi in the above submission and I cannot convert this jurisdiction in under Article 226 of the Constitution of India by assuming the jurisdiction of appellate Court of the Joint Remembrancer and therefore, I am precluded from assessing or reassessing factual aspect of the case. The fact that no evidence was led before the Joint Legal Remembrancer except in one case as mentioned above, and this particular point was not pressed during the arguments further strengthens the objection of Mr. Munshi I am, therefore, not inclined to enter into the controversy of arithmetical calculations about the length of route in each particular scheme and further length of route in each party affected directly or indirectly and the services provided by the present operators and then compare ii with the single services provided in the scheme of each route. The calculation of plying 1200 kms, for each vehicle for each day suggested by Mr. Vyas therefore, cannot be accepted and that being so, inferences of impossibility of such performance to be used as a weapon for declaring this scheme as invalid and being against Section 68 C of the Act, logically becomes untenable It is neither feasible nor possible nor permissible for this Court to enter into this scrutiny to find out whether calculation of Mr. Vyas of 1200 kms. in contrast of the calculation of Mr. Munshi which confirms to the norms of 250 kms. per day per vehicle, are correct.
27. Seemingly all the four routes are to be taken together. On a bare persual of the (sic) plans it is clear that there is good deal of overlapping. To illustrate the route of Khairthal Kotkasim in between has got Kishangarh and distance between Kishangarh to Kotkarim is 26 miles of the original route. Mr. Vyas in his calculation of 86 miles of length has included 26 miles twice because Kishangarh Kotkasim is only a part of Khairthal-Kotkasim route.
This one illustration would be sufficient to explore myth of the calculation of the length of the route multiplied by service. I have therefore, adopted the (sic) course not to make any attempt even indirectly to convert this Court's or jurisdiction either by making on original assessment and scrutiny of the cases or and an appellate Court. If the petitioners wanted to rely on this aspect of the matter it was necessary to first place all these matters before the authority concerned i.e. Joint Legal Remembrancer and then show to this Court what are those errors which can be termed as error apparent on the face of record or error of jurisdiction which can require interference under Article 226 of the Constitution. I have got no hesitation in holding that the petitioners except in one case did not do anything after filing objections which were too voluminous and lengthy but which were never argued or pressed or supported by leading any evidence.
28. They cannot except to fill up the lacunas, make up gaps left by them either by inaction or by lethargy before the Joint Legal Remembrancer by making arguments in this writ application. That being so. I have no hesitation in rejecting this principal submission of Mr. Vyas and Mr. Mehta and hold that the petitioners have failed to prove the approved schemes containing the number of single services, number of stage carriages, and the length of the routes are inadequate and against public interest.
29. In H.G Narayanappa v. State of Mysore : 3SCR742 . their Lordships of the Supreme Court considered in details the object and the scope of hearing under Section 68 C/D of the Act. It was pointed out that the opportunity of making representations and of being heard in support of may be regarded as real only if in the consideration of the objections, there is a judicial approach However, it was made clear that this should not mean that the court would hear an appeal against the order passed by the State Government deciding such objections and approving or modifying the scheme. On the authority concerned hears the objections and deals with the objections in the light of the object intended to be secured by scheme, the order of such authority is not open to challenge on the following grounds:
a) That another view may possibly hive been taken on the objections;
b) that the detailed reasons ha re not been given for upholding or rejecting the contentions raised by the objectors.
30. It may be pointed out that in the above judgment, the objection raised was that the Chief Minister did not give 'genuine consideration' to the objections raised by the objections to the scheme. The Supreme Court was of the view that even though specific reference has not been made in the order to certain objections which were raised in the reply filed by the objectors but on that account it cannot be held they were not considered.
31. I am inclined to accept the submission of Mr. Vyas that the Supreme Court has, later on, expanded the jurisdiction of the Courts for judicial review to ascertain compliance of Section 68 D or C of the Act. In Sindh Sahiti Multipurpose Transport Co operative Society Ltd v. State of Madhya Pradesh and Ors. : 2SCR86 all that was said was that even though Chapter IV-A of the Act is not open to challenge having been included in the Schedule of the Constitution but the schemes framed there under can be challenged by aggrieved persons on t(sic)e ground that it is not a valid scheme as required by the provisions of Chapter IV-A of the Act. It is not possible for me to read in Para No. 4 of this judgment, the substance of which I have mentioned above, any expansion of the scope of a Judicial Review by making a departure from earlier judgment of Narayanappa's case (supra). The question whether a scheme is protected by constitutional umbrella of 9th schedule only was negatived on the ground that the umbrella provides protection to the Act from constitutional challenge but it can always be examined whether a scheme of nationalisation fulfils the requirement of the Act.
32. Apart from this, in the judgment of Sindhi Sahiti Mal purpose Transport, Cooperative Society, specify reliance was placed on the earlier judgment of Capital Multipurpose Cooperative Societies, Bhopal and Ors. v. State of Madhya Pradesh : 3SCR329 and the Court observed that the efficiency as well as adequacy of the scheme is advanced by such policy decisions of complete or partial nationalisation of routes. It is a matter of policy as to what routes should be curtailed for the operation of the scheme.
33. The most important observation of the judgment which negativates the contention of the learned Counsel for the Bu- Operate is, M. Mehta and Mr. Vyas in this respect is as follows:
Courts do not judge such policy decisions' Under Section 68 D of the Act the only scope for objection is whether the scheme is for efficiency and adequacy and not whether exclusion is complete or partial Objections were confined only to the four grounds of efficiency, adequacy, economy and proper co-ordination of road transport service. Exclusion can be attacked only on these four grounds.
34. Thus it would be seen that Mr. Vyas and Mr. Mehta Counsel for the Bus-operations, can not take any assistance from the above judgment of the Supreme Court in order to persuade this Court to hold that the earlier view of the Supreme Court mentioned above stands al(sic)ered and expanded. It is to be noted that in judgment of Capital Multipurpose Co-operative Societies, Bhopal and Ors. v. State of Madhya Pradesh (cited supra) the Supreme Court examining the scope of Section 68 D & C of the Act, observed as under:
There is no express ore vision in Sections 68-C and 68 D laving down that the authority heating objections must come to some finding of fact as a condition precedent to its final order As such no express finding is necessary under Section 68 C read with Section 68 D that the scheme provided in efficient, adequate, economical and properly coordinated read transport service. Besides the whole object of hearing objections under Section 68 D is to consider whether the scheme provides any efficient, adequate, economical and properly co-ordinated road transport service. After hearing objections the State Government, or the officers authorised by it has either to approve or modify, or if necessary to reject the scheme. We are the scheme is approved or modified it necessarily follows that it has been found to provide an efficient adequate, economical and properly co-ordinated, transport service; if it is not of that type, the State Government or the authority appointed to hear objections would reject it. In the absence of prevision requiring an express finding in these two Sections it is (sic) that the very order of the State Government or the authority appointed by (sic) to near (sic) mist be held to (sic) the scheme is authorised or (sic) that is sub (sic) mentioned in Section 68-C or, where it is rejected that it dose not subserve the purposes Section 68 D does not require any express finding, and even if there is none, it would (sic) invaidate the orders assed by the authority hearing be objections.
The above would show that the Court did not insist on the requirement of an express finding that the scheme provides an efficient, adequate, economical & properly co-ordinated road transport service. The Court was inclined to hold that if after hearing objections the scheme is approved if necessary follows that it has been found to provide an efficient, adequate, economical and properly co-ordinated to id transport service, A legal presumption or inference of existence of finding for those objectives by approval of the scheme, and non existence, by its rejection; it to be draws as per the dictum laid down by the Supreme Court in this judgment.
35. It was precisely on account of this settled state of law that in French and Vyas case (cited supra) this court rejected the writ applications in relation to the above scheme of nationalisation. It was held as under:
The first submission is that there was no material before the Corporation to form an opinion under Section 68-C of the Act and the Corporation never formed such an opinion. Under Section 68 C the Corporation has to first form an opinion that for the purpose of the objects of Section 68 C, it is necessary in the public interest that road transport service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking A perusal of the order of the Joint Legal Remembrancer (II)dated 25-9-76 disposing of preliminary objections, will show that under resolution No. Ill of 1976 dated 31-1-76, the Corporation formed an opinion as required under Section 68-C of the Act. It is contended by the learned Advocate for the petitioner that no such opinion had been formed by the Rajasthan State Road Transport Corporation, and further there was no material before it for applying its mind whether it was necessary for the objects of Section 68-C of the Act to operate buses by the State Transport Undertaking in the public interest. It may be mentioned here that in some of the writ petitions except writ petition No 486/79 and 520/79. copies of the objections alleged to have been filed by the petitioners have been submitted as Annexure and, therefore, it cannot be said as to whether any objection was taken by the petitioners as to whether there was any material before the Corporation to form an opinion under Section 68-C or not Even in the objections, copy of which has been annexed as Annexure 4 to petition No. 486/79 and 520/- 79, all that has been mentioned in the objections is that the Corporation has not framed an opinion and/or passed any resolution and/or framed the said draft scheme in terms of Section 68 of the Act by duly applying its mind to the various matters enumerated in para 4 But no, objection appears to have been taken even in these objections that there was no material with the Corporation to formal opinion under Section 68 C of the Act. A perusal of the order of the Joint Legal Remembrancer dated 25-9-76 disposing of the preliminary objections will show that during the course of arguments this objection was raised in some form and did not favour with him. He has held that it is a matter of subjective satisfaction and it is not necessary for the Corporation to mention in the resolution Firstly an express recital of the formation of the opinion that the scheme was necessary in the public interest by the Corporation is not made a condition of the validity of the scheme, (vide Gulla palli Nageskara Rao and Ors. v. Andhra Pradesh State Road Transport Corporation and Ors.)
Secondly, it appears that no evidence was led before the Joint Legal Remembrancer in this respect Section 68-C does not direct the disclosure of not which assisted the formation of the opinion to which it refers. Similarly, under Section 68 D of the Act. It is not necessary to disclose such a material during the scheme 10 lead evidence and to provide material that there was no material with the Corporation on which the Corporation could form an opinion. A reference in this connection may be made to A.I.R. 1969 Mysore 319 (supra). Therefore there appears to be no prima facie force in the submission that there was no material before the Corporation to form an opinion.
A perusal of resolution No. 11/76 of the Corporation, which is to the following effect, will make it clear that the opinion was formed by the Corporation:
The members perused the plan for the nationalisation of the routes during the year 1976-77. After discussion and careful consideration, it is resolved 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 (Passenger Transport Service) in relation to the following routes and portions thereof should be run and operated by the Rajasthan State Road Transport Corporation to the complete exclusion of other persons.
Thereafter the name of the routes and their length in Kilo Meters have been given. It can, therefore, be said that the plan for nationalisation of the various routes was considered and that formed the material for forming an opinion as required under Section 68-C of the Act. Therefore, there is no prima facie merit in the submission that the Corporation has not formed an opinion under Section 68 C of the Act.
I am, therefore, firmly inclined to agree with the above view taken by other Branch of this court in respect of validity of the above schemes of nationalisation for which I have given additional reasons also.
36. Mr. Mehta submitted that Rules 3 and 4 are invalid and ultra vires of Section 68 C of the Act. Rules 3 and 4 of the Rajasthan State Road Transport Service (Development) Rules, 1965 are as under:
(3) Preparation of scheme:--(1) A scheme under Section 68- C of the Act will be prepared by the General Manager of the State transport Undertaking.
(4) Particulars of the Scheme:--The scheme or approved scheme to be published in the official Gazette as required under Section 68-D as the case may be, shall contain the following particular:
(i) Name of the route indicating its course and mileage;
(ii) the numbers of vehicles proposed to be operated on each route;
(iii) the total number of trips to be performed daily on each , route; and
(iv) the nature of service;
(v) any ether information which the General Manager wand to add.
37. This arguments has already been repelled by a Division Bench of this Court in Sitaram and Ors. v. State of Rajasthan and Ors. 1973 WLN 917 wherein it was observed as under:
Rule 3 of the Rules to our mind can be harmonised within the fabric of Section 68 C of the Motor Vehicles Act. The forming of the opinion for the purpose of making provision for an efficient, adequate, economical and properly coordinated route service which is necessary in the public interest, it left to the State Undertaking as such and has not been assigned to the General Manager by the Rules. So far as the preparation of the scheme is concerned, there is overlapping between the Section and the rule bat from that alone again it cannot be said that the rule provides for something which is inconsistent with the Section. The rule can be harmo(sic) with the Section by leading the two in a way that whereas the important part regarding the formation the two ingredients of the (sic) viz. (1) regarding the nature of services proposed to be rendered and (2) regarding the area or route proposed to be covered remained with the Corporation itself, the part of the scheme relating to putting in the particulars prescribed by the rules are left to the General Manager. Likewise, it will be the General Manager who will put the whole thing in a proper form so as to be presentable.
Since I am in complete agreement with the view of the Division Bench of this Court in Sitaram's case (cited supra) it is not necessary to discuss in details the various objections raised regarding the validity other rule. Ii is sufficient to mention that though an attempt was made by Mr. Mehta that this view of Division Bench has not been a proved by the Supreme Court but no such clear, specific finding of Supreme Court in any judgment was shown to hold that the Division Bench's view of this Court has been disapproved only on the basic of some deductions or stray inferences in same judgments which have got no direct relevancy or bearing about the law laid down in Sitaram's judgment (cited above).
38. Having failed to convince the Court on invalidity of the Rule 3 and 4 of the Rules, 1965, Mr. Mehta, argued as a last limb of on argument that the evidence or partial hearing was done by Mr. Bhansali who was the Joint Legal Remembrancer but the decision was given by Mr. P A Sinha, and therefore there was no hearing. It may be pointed out that neither Mr. Bhansali nor Mr. Sinha were appointed as 'persona designata' but they considered the schemes for nationalisation on account of their being posted as the Joint Legal Remembrancer(II) who as per the rules oft he business and the orders made thereunder of delegation of power is authorised to exercise the functions of Government under Section 68 D of the Act In Lalchand v. State of Rajasthan it has been held by this Court that the Joint Legal Remembrancer is authorised and competent to hear objections and decide the validity of schemes framed under Section 68-C of the Act.
39. So far as the requirement of any denovo hearing is concerned, there is no such law as was the case in the old Code or of Criminal Procedure. In the absence of requirements of any law (sic)donovo bearing and that too of a scheme of nationalisation by the Joint Legal Remembrancer is not called for simply because earlier Officer has been transferred. It may further be mentioned here that there is nothing demeanour of witness in a criminal case where the Court can on that basis also, take assistance in appreciating the evidence in my view, the concept of de novo hearing cannot be applied to the procedure of the Joint Legal Remembrancer. The learned Counsel for the Bus-operators, placed reliance on the judgment Gullapalli Nageswara Rao and Ors. v. Andhra Pradesh State Road Transport Corporation and Ors. in which hearing was done by the Secretary and the decision was given by the Minister Incharge Since the Minister Incharge never heard the case and be was only competent authority to decide the question in issue as per the rules of business prevalent there, it was perfectly legal to insist that he should allow an opportunity of hearing himself. However, in the present case it is the Joint Legal Remembrancer and the Joint Legal Remembrancer only who is required to hear and decide the objections against draft schemes and to approve and modify them. That being so, Andhra Pradesh analogy cannot apply and the citation of the above judgment cannot provide any guidance in these cases.
40. It was then argued that the General Manager of the Roadways Transport Corporation is not Corporation and since the scheme was framed by him it cannot be said that the Corporation applied its mind and framed the scheme.
41. Mr. Munshi rightly pointed out to this Court the Resolution of the Corporation by which the General Manager then prepared the scheme and as per the agenda submitted for consideration of the Corporation. The Corporation approved the schemes.
42. In the case of Premchand Vyas (supra) of this Court, similar objection was taken and was repelled and rejected. The relevant portion of resolution No. 26/76 dated 12-3-76 is at under:
Item No. 15(83)/76
Approval of the drafts of the draft schemes.
Resolution No. 26/76 : resolved than the draft scheme (sic) to the following routes be put up in pursuance of Resolution No. 11/76 dated 31st Jan, 1976 were 9een and approved
43. In the agenda the relevant portion of which is as under:
Commercial Department (G.M.)
Sub:--Approval of the drafts of draft schemes.
As per resolution of the Corporation No. 11/76 dated 31-1-76, I have prepared the draft of the draft schemes of the routes proposed to be nationalised, which are submitted to the Corporation for its 'approval.
44. It would be seen that the General Manager submitted scheme for the approval of the Corporation. It should not be forgotten that the General Manager is also one of the members of the Corporation, and all the schemes submitted by him, were approved by Resolution No, 26/76 extracted above. That being so these schemes were considered by the Corporation as such, and approved as draft schemes. After all, the draft of draft scheme can be prepared by ore Member or a senior executive only and all the members of the Corporation then apply their minds for the purpose of approving it, In the process of the approval they can certainly make alternation and changes and fan even scrap the scheme it they think that it fails to fulfil the objects of nationalisation. The approval of the scheme by the members of the Corporation in a meeting putt in a final seal on all controversies about the initiation & intermediatory actions of alteration or changes in draft or redrafting etc. I am therefore, in agreement with the view taken up this Court in Premchand Vyas's case (supra) for repelling this (sic) of the learned Council for the petitioners & in view of it, it is not necessary to give detailed reasons as they are already mentioned therein.
45. Much capital was sought to be made by the learned Counsel for the Bus-Operators of the feet that Section 68-CC of the Act has been used in the notification However, a perusal of the notification about the scheme of Alwar Tajara Bhawani would show that Section 68 C has also been mentioned and I am therefore, inclined to accept the contention of Mr. Munshi that the mention of 68 CC was by mere mistake. In any case it is settled law that mere mention of Section cannot alter the nature of the order nor it can invalidate an act or order of it can be shown that an order or act has born done by the proper authority in a proper manner under a proper law. This is additional reason for rejecting the objection of the learned Counsel for the petitioners.
46. The result is that all these writ applications are dismissed without any order as to costs. However, to avoid hardship caused by displacement, two months time is allowed to the petitioners. During this period the petitioners would also be allowed to ply their Buses on the concerned coutes, provided they have got existing permits and fulfil all other requirements of law.