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PETITIONER:

NEHRU MOTOR TRANSPORT COOPERATIVE SOCIETY LTD., AND OTHERS

Vs.

RESPONDENT:

THE STATE OF RAJASTHAN AND OTHERS

DATE OF JUDGMENT:

14/12/1962

BENCH:

WANCHOO, K.N.

BENCH:

WANCHOO, K.N.

SINHA, BHUVNESHWAR P.(CJ)

GAJENDRAGADKAR, P.B.

GUPTA, K.C. DAS

SHAH, J.C.

CITATION:

1963 AIR 1098 1964 SCR (1) 220

CITATOR INFO :

RF 1967 SC1815 (12,13)

RF 1981 SC 660 (9)

R 1992 SC1888 (8)

ACT:

Motor Vehicle-Publication of scheme-Scheme, if consti-

tutionally valid-Motor Vehicles Act, 1939 (4 of 1939), SS.

68c, 68D(3)-Rajasthan State Road Transport Services

(Development Rules, 196O, r. 3-Constitution of India, Arts.

14, 32.

HEADNOTE:

The petitioners were holders of Stage-carriage permits on

Jodhpur-Bilara arid Bilara-Beawar routes. The Rajasthan

Roadways published a draft scheme which provided for taking

over the transport service on the Jodhpur- Bilara-Beawar-Aj-

mer route by the Roadways and also for taking over three

overlapping routes or portions thereof which were entirely

on Jodhpur-Bilara-Beawar-Ajmer road and the names of the

permit-holders on these three overlapping routes with their

permits were also specified for cancellation and no other

transport vehicles were to ply on the route to be taken

over. The petitioners filed objection and challenged the

scheme on the ground of discrimination before the Legal

Remembrancer as some overlapping routes were not notified.

He held that even though these routes were not specified in

the draft scheme and no notice had been given to the permit

holders thereof, it was open to him to render the permits

ineffective with respect to these routes also and passed

orders accordingly. The permitholders affected by the order

of the Legal Remembrance filed writ petitions in the High

Court. The High Court directed the Legal Remembrancer to go

into the matter again and to leave the question of the

twelve partially overlapping routes for a subsequent scheme.

The effect of the decision of the Legal Remembrancer

considered in tile light of the decision of the High Court

was that all the twelve partially overlapping routes were

left out of the scheme and only the three routes notified in

the draft-scheme were affected. The present petition is

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directed against his decision approving the scheme as

modified by him and published on August 31, 1962. In this

Court it was urged (1) that the procedure of approving a

part of the scheme once and another part later was illegal;

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(ii)that the approval of the scheme by the Legal Rem-

embrancer after abdication of his own judgment was not a

valid approval ; (iii) that the Legal Remembrancer ought to

have given a fresh hearing ab initio to the objectors ; (iv)

that there was no proper hearing and (v) that there was

discrimination, as the, operators of the twelve partially

overlapping routes were left out of the scheme.

Held, that as the twelve overlapping routes were never

included in the draft scheme, the approval given to the

craft scheme without touching these routes cannot be called

0an approval of a part of the scheme.

Held, further that in the present case the order of the High

Court was analogous to a remand order and therefore, the

decision of the Legal Remembrancer must be treated as a

fresh decision and not a review of his earlier decision and

there was no abdication by him of his functions.

Held, further, that when the objectors had been given full

opportunity to lead evidence on the previous occasion which

was still there for the Legal Remembrancer to take into

account, it was sufficient for him to hear the objector's

arguments. If it is borne in mind that the order passed by

the High Court in the proceedings was in the nature of a

remand order, this objection must fail.

Held, further, that the fact that the rules did not provide

for a coercive process to secure attendance of witnesses did

not mean that there could be no proper hearing without it.

Held, further, that under s. 68C it was open to the State

Government to take over any area or route to the complete or

partial exclusion of other persons and there was no

discrimination in the present case, for routes completely

covered, by the route taken over stand on a different

footing from the routes only partially covered.

JUDGMENT:

ORIGINAL JURISDICTION: Writ petition No. 142 of 1962.

PetitioN under Art. 32 of the Constitution of India for the

enforcement of fundamental rights.

B.Chhangani and B. D. Sharma, for the petitioners.

222

C.K. Daphtary, Solicitor-General of India, Kan Singh, S.

K. Kapoor and P. D. Menon, for the respondents.

1962. December 14. The judgment of' the Court was

delivered by

WANCHOO, J.-This petition under Art. 32 of the Constitution

challenges the constitutionality of a scheme finalised under

s. 68D (3) of the Motor Vehicles Act, No. IV of 1939,

(hereinafter referred to as the Act) in the State of

Rajasthan. The petitioners are holders of stage-carriage

permits on Jodhpur-Bilara and Bilara-Beawar routes. A draft

scheme was published under s. 68C of the Act by the

Rajasthan Roadways, which is a State Transport Undertaking,

(hereinafter referred to as the Roadways), on January 26,

1961. It provided for taking over of the transport service

on the Jodhpur-BilaraBeawar-Ajmer route by the Roadways.

Further it provided for taking over three overlapping routes

or portions thereof which were entirely on Jodhpur

Bilara-Beawar-Ajmerroad, namely, Jodhpur-Bilara, Bilara-

Beawar, and Beawar-Ajmer, and as required by r. 3 of the

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Rajasthan State Road Transport Services (Development) Rules,

1960, (hereinafter referred to as the Rules), the names of

the permitholders on these three overlapping routes with

their permits were also specified for cancellation, and no

transport vehicles other than the vehicles of the Road ways

were to ply on the route to be taken over. The usual time

was also given for filing objections to all those whose

interests were affected by the draftscheme. The petitioners

filed objections under s.68D of the Act, which were heard by

the Legal Remembrancer to the Government of Rajasthan, he

being the person appointed to hear and decide the objec-

tions, The objectors wanted to lead evidence and did produce

some witnesses but some witnesses to whom summonses were

issued did not turn up and

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the objectors wanted the issue of coercive processes against

them. The Legal Remembrancer however refused this on the

ground that lie had no power to issue coercive process. As

the objectors did not produce any further witnesses, the

arguments were heard and the Legal Remembrancer gave his

decisions on May 31, 1962.

One of the main points then raised before the Legal

Remembrancer was that there were a dozen other overlapping

routes which were not touched by the scheme, and therefore

the scheme was bad on the ground of discrimination. It may

be mentioned that these overlapping routes were not

completely overlapping the route to be nationalised, though

the vehicles paying on those twelve routes had to pass over

part of the Jodhpur-Bilara-Beawar-Ajmer road. It was urged

on behalf of the Roadways before the Legal-Remembrancer that

the intention was to render ineffective the permits on these

twelve routes also insofar as they overlapped the route to

be taken over, though these, routes were not mentioned in

the draft-scheme like the three routes which were completely

covered by the Jodhpur-Bilara-Beawar-Ajmer route and no

notice was apparently given to the seventy-two permit-

holders on these twelve partially over-lapping routes. The

Legal Remembrancer held that even though these routes were

not specified in the draft-scheme and no notice had been

given to the permit-holders thereof, it was open to him

to render the permits ineffective with respect to these

routesalso and proceeded to pass orders accordingly.

Thereupon five writ petitions were filed in the High Court

of Rajasthan by the permit-holders on the three routes which

had been notified in the draftscheme as well as by some of

the permit-holders of the twelve partially overlapping

routes which had not been notified but which had been

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affected by the order of the Legal Remembrancer. Two main

points were urged before the High Court in support of the

cbchallenge to the validity of the scheme as finally

published on June 16, 1962. In the first place, it was

urged that the State Government when publishing the scheme

as required by s. 68D(3) of the Act had made certain changes

in it beyond the decision of the Legal Remembrancer and

therefore the final scheme as published was invalid as it

was not open to the State Government to make any changes in

the scheme as approved by the Legal Remembrancer. Secondly,

it was urged on behalf of the operators on the twelve

partially overlapping routes which had not been notified in

the draft scheme that it was not open to the Legal

Remembrancer to affect their interests when their routes

were not specified in the draft scheme and they had been

given no notice thereof. The High Court accepted both these

contentions. It was of the opinion that it was not open to

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the State Government to make any modification in the

decision of the Legal Remembrancer and inasmuch as that had

been done the final scheme as published was invalid. It

also held that as the twelve partially overlapping routes

were not notified in the draftscheme and no notice had been

given to the permitholders thereof, it was not open to the

Legal Remembrancer to pass any orders with respect to them.

It therefore set aside the scheme as published under s. 68D

(3) of the Act. Finally, the High Court observed that as

the scheme as published was not the scheme as approved by

the Legal Remembrancer and as the decision of the Legal

Remembrancer becomes final when it is published, it was open

to the Legal Remembrancer to modify his decision, even

though he may have signed and pronounced it. The Legal

-Remembrancer was thus directed to go into the matter again

and leave the question of the twelve partially overlapping

routes for a subsequent scheme. The final scheme as

published under s. 68D (3) of the Act was set aside and the

Regional Transport

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Authority was directed not to implement it until it was

regularised in accordance with law.

The matter then went back to the Legal Remembrancer who

considered the draft-scheme in the light of the decision of

the High Court and after hearing further agruments disposed

of the objections. The main effect of his decision was that

all the twelve partially overlapping routes were left out of

the scheme and only the three routes notified in the draft-

scheme which were completely covered by the route Jodhpur-

Bilara-Beawar-Ajmer, were affected. The decision of the

Legal Remembrancer approving the scheme as modified by him

was published on August 31, 1962, and the present petition

is directed against that decision.

The decision of the Legal Remembrancer is being challenged

before us on the following grounds:-

(1)A draft-scheme under the Act has to be approved as a

whole and the procedure of approving a part of the scheme

once and another part later is illegal, and therefore, the

approval given to the draft-scheme by the Legal Remembrancer

does not result in approving the scheme, as required by law.

(2)It was not open to the Legal Remembracer to review his

order dated May 31, 1962 even after the decision of the High

Court, and insofar as the Legal Remembrancer did so in

obedience to the order of the High Court he abdicated his

own judgment, and the approval therefore after such

abdication of his own judgment, is no approval in law.

(3)As the scheme as published on June 16, 1962 was set

aside by the High Court, it was the duty of the Legal

Remembrancer to give a fresh hearing ab initio to the

objectors which he did not do, and therefore the approval

accorded by him to the draft-scheme

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after the judgment of the High Court is no approval in law.

(4)Hearing requires taking of evidence; but as the Legal

Remembrancer expressed his inability to compel attendance of

witnesses, there was no hearing as contemplated by law, and

therefore the approval of the draft-scheme without a proper

hearing is no approval in law.

(5) There was discrimination inasmuch as the operatorsof

the twelve partially overlapping routes were left out of the

scheme.

Re. (1) &(2).

There is no doubt that a draft-scheme has to be considered

as a whole and all objections to it have to be decided

before it can be approved by the State Government or by the

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officer appointed in that behalf, and the Act does not

envisage approving of a part of the scheme once and putting

it into effect and leaving another part unapproved and left

over for enforcement later. It is also true that the Act

does not provide for review of an approval once given by the

Legal Remembrancer, though he may be entitled to correct any

clerical mistakes or inadvertent slips that may have crept

in his order. It is also true that the Legal Remembrancer

when considering the objections has to exercise his own

judgment subject to any directions that the High Court.

might give on questions of law relating to a particular

draftscheme. But we do not think that this is a case where

the draft-scheme has been approved in part and another part

of it has been left unapproved to be taken up later; nor is

this a case where the Legal Remembrancer abdicated his own

judgment or reviewed his earlier decision when he proceeded

to reconsider the matter after the High Court had set aside

the scheme as published under s. 68D (3) of the Act on June

16, 1962.

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Let us see what the draft-scheme was meant to provide in

this case. As we have already indicated, the draft-scheme

was published in order to take over the Jodhpur-Bilara-

Beawar-Ajmer route. It also provided for taking over all

the three completely overlapping routes, namely, Jodhpur-

Bilara, Bilara-Beawar, and Beawar-Ajmer routes, and also

portions thereof falling entirely on this road from Jodhpur-

Ajmer. There was no indication in the draft-scheme for

taking over what are called partially overlapping routes,

only parts of which overlapped on the Jodhpur-Bilara-Beawar-

Ajmer road. These partially overlapping routes were of two

kinds. In some cases one terminus was on Jodhpur-Bilara-

Beawar-Ajmer road while the other terminus was not on this

road. In other cases, both the termini of the overlapping

routes were not on this road, though a part of the route

fell on this road. Rule 3 of the Rules provides for indi-

cating all such overlapping routes as are intended to be

affected and the draft scheme in the present case only

indicated three routes which were completely on this road

namely, Jodhpur-Bilara, Bilara-Beawar, and Beawar-Ajmer, and

was not concerned at all with the other overlapping routes,

where overlapping was only partial. It was therefore in our

opinion unnecessary to bring in the question of the twelve

partially overlapping routes when objections to this draft

scheme were being considered. There is no doubt that the

Roadways was also responsible for the introduction of this

confusion for it seems to have been urged on its behalf,

when the objections were considered on the first occasion,

that these partially overlapping routes were also meant to

be covered by the draft scheme, even though they were not

mentioned in the draft scheme as required by r. 3 of the

Rules and no notice had been issued to the permitholders of

those routes. The petitioners also raised a point with

respect to these overlapping routes, and that is how on the

first occasion, the Legal Remembrancer held that even though

these routes had

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not been included in the draft scheme and no notice had been

given to the permit-holders thereof, it was open to him to

pass orders with respect thereto and he proceeded to render

the overlapping part of these routes ineffective. It is

obvious from a perusal of the draft scheme that these twelve

partially overlapping routes were not included in it at all

and they were brought in only because of the objection

raised by the petitioners and the reply of the Roadways that

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they were meant to be included. That is why when the writ

petitions were decided by the High Court, it pointed out

that the scheme did not intially include the partially

overlapping routes. The High Court then went on to observe

that if the Legal Remembrancer thought fit to include these

routes in the scheme also, he should have given notice to

all concerned to file their objections. With respect, it

seems to us that this observation of the High Court is not

correct. If the scheme did not include the partially

overlapping routes-as it undoubtedly did not, in spite of

what the objectors might have said and what the Roadways

might have maintained before the Legal Remembrancer on the

first occasion-it was not open to the Legal Remembrancer to

include these overlapping routes in the scheme at all and he

could not do so even if he had given notice to the permit-

holders on these overlapping routes. The question therefore

whether the final approval of the draft scheme as published

on August 31,1962 is an approval of a part of the scheme

only, leaving another part of the scheme unapproved and

therefore liable to enforcement later, can only admit of one

answer, namely, that the approval was of the scheme as a

whole. The contention therefore on behalf of the

petitioners that part of the scheme has been approved and

the rest of it has been left unapproved, can have no force

on the facts of the present case. The twelve overlapping

routes were never meant to be affected by the scheme which

left them untouched. The contention that only part of the

scheme has been

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approved appears to have been based on the fact that these

routes have not been rendered ineffective as to the

overlapping part. But as these routes were never included

in the draft scheme, the approval given to the draft scheme

without touching these routes cannot in the circumstances be

called an approval of a part of the scheme.

Nor do we think that there is any force in the contention

that the Legal Remembrancer abdicated his judgment when

going into the question on the second occasion after the

judgment of the High Court. The order of the Legal

Remembrancer dated August 17, 1962 shows that he

reconsidered the entire matter after hearing further

arguments and there can be no doubt that he was exercising

his own judgment when he finally decided to approve the

draft scheme with certain modification. What the Legal

Remembrancer has done in this case is to reappraise the

evidence in the light of the legal position indicated by the

High Court. Nor do we think that there is any substance in

the argument that the order of the Legal Remembrancer dated

August 17, 1962, is a review of his earlier order dated May

31, 1962. No question of review of that order arises for

that order was in effect set aside when the High Court set

aside the final scheme as published on June 16, 1962. It is

true that publication made certain further modifications

into the scheme as approved by the Legal Remembrancer but

that in our opinion makes no difference to the fact that the

order of the High Court setting aside the final scheme as

published on.June 16, 1962 put an end to the order of the

Legal Remembrancer dated May 31, 1962 also. This argument

as to review has been raised because of the observation in

the Judgment of the High Court that the scheme as finally

published on June 16, 1962 was not the decision of the Legal

Remembrancer because of the changes made in it by the State

Government and

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therefore it was open to him to modify it, though he might

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have signed his decision and pronounced it. With respect,

we consider that this observation is not correct. It may be

that the State Government had no authority to modify the

decision of the Legal Remembrancer but when the High Court

set aside the finally approved scheme as published on June

16, 1962, it meant the decision of the Legal Remembrancer

dated May 31, 1962, also came to an end, for the final

scheme as published on June 16, 1962 was undoubtedly based

on it, even though there were further changes in that

decision at the time of publication. In the present case

the order of the High Court was analogous to a remand as

understood in courts of law. What the Legal Remembrancer

did on the second occasion was to reappraise the evidence in

the light of the law laid down by the High Court.

Therefore, it cannot be said that the decision of the Legal

Remembrancer on August 17, 1962, is a review of his earlier

decision dated May 31, 1962. It must be treated as a fresh

decision, after the High Court had set aside the final

scheme as published on June 16, 1962. Though therefore the

proposition put forward on behalf of the petitioners may be

accepted as correct, there is no scope for applying the

principles contained in these propositions to the facts of

this case. The contention therefore that the scheme as

finally published on August 31, 1962 is bad because it

militates against these principles must be rejected.

Re. (3) & (4).

It is urged that after the High Court set aside the final

scheme as published on June 16, 1962, the Legal Remembrancer

should have given a fresh hearing ab initio and that he did

not do so. It is further urged that in as much as there is

no provision in the Rules for compelling the attendance of

witnesses whom an objector might like to produce, there

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can be no effective hearing of the objection, and therefore

the scheme as finally published on August 31, 1962, is

invalid. It is not disputed that the Legal Remembrancer did

give a hearing to the objectors after the order of the High

Court. What is urged however is that the objectors should

have been allowed to give evidence afresh before the Legal

Remembrancer finally disposed of the objections. We are of

opinion that though the result of the order of the High

Court was to set aside the order of the Legal Remembracer

dated May 31, 1962, it cannot be said that the order of the

High Court wiped out the evidence which the objectors had

given before the Legal Remembrancer on the first occasion.

We have already mentioned the two grounds on which the High

Court set aside the final scheme as published on June 16,

1962, and those grounds had nothing to do with the evidence

which was already produced. In our opinion, it was open to

the Legal Remembrancer to take that evidence into account

and it was not necessary that evidence should be given

again, particularly when no fresh issues arose; nor was the

Legal Remembrancer bound to take fresh evidence simply

because the final scheme as published on June 16, 1962 had

been set aside on account of certain technical and Legal

defects. When the objectors had been given full opportunity

to lead evidence on the previous occasion which was still

there for the Legal Remembrancer to take into account, it

was sufficient for the Legal Remembrancer to hear the

objectors' arguments in full after the order of the High

Court in the light of the observations made by it, and the

petitioners therefore cannot have any grievance on the score

that they were not given any hearing after the order of the

High Court. If it is borne in mind that the order passed by

the High Court in the proceedings was in the nature of a

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remand order, all these objections will plainly be

untenable.

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As to the contention that the Rules do not provide for

compelling the attendance of witnesses and all that the

Legal Remembrancer can do is to summon witnesses who may or

may not appear in answer to the summonses, it is enough to

say that the proceedings before the Legal Remembrancer

though quasi-judicial are not exactly like proceedings in

court. In proceedings of this kind, it may very well be

concluded when a witness is summoned and does not appear,

that he does not wish to give evidence, and that may be the

reason why no provision is made in the Rules for any

coercive process. We think in the circumstances of the

hearing to be given by the Legal Remembrancer, it is enough

if he takes evidence of the witnesses whom the objectors

bring before him themselves and if he helps them to secure

their attendance by issue of summonses. But the fact that

the Rules do not provide for coercive processes does not

mean in the special circumstances of the hearing before the

Legal Remembrancer that there can be no proper hearing

without such coercive processes. We are therefore of

opinion that the Legal Remembrancer did give a hearing to

the objectors after the order of the High Court and that in

the circumstances that hearing was a proper and sufficient

hearing. The challenge therefore to the validity of the

scheme as published on June 16, 1962, on this ground must be

rejected.

Re. (5).

Lastly we come to the question of discrimination. The

argument is based on the fact that the twelve partially

overlapping routes to which we have already alluded have not

been touched by the scheme. That is undoubtedly so. We

have already pointed out that in the case of some of these

routes one terminus is on the Jodhpur-Bilara-Beawar-Ajmer

road while the other is not on this road. In some cases

neither termini is on this road and only a part of

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the route overlaps this road. The argument is that as the

permit-holders on these partially overlapping routes have

not been touched by the scheme, there is discrimination

inasmuch as the permit-holders on the three routes which

were totally overlapping the route which was being taken

over, have been completely excluded. We do not think that

this amounts to discrimination. It may be pointed out that

under s. 68C it is open to take over any area or route to

the complete or partial exclusion of other persons.

Therefore, it was open to the State Government to take over

this route only and exclude those who may be plying

completely on this route or parts thereof and unless it can

be shown that others who are similarly situated have -not

been excluded from the scheme there can be no question of

discrimination. In our opinion it cannot be said that-those

permit-holders whose routes were completely covered by the

route taken over stand on the same footing as those whose

routes were only partially covered by the route taken over.

It may very well have been considered that in the first

instance only those permit-holders will be excluded whose

routes are completely covered by the routes taken over, and

if that is permissible under the law it cannot be said that

that would amount to discrimination when there is an obvious

distinction between routes completely covered by the route

to be taken over and the routes partially covered by the

route to be taken over. We have been informed that since

this scheme was approved steps have been taken even to

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exclude those permit-holders whose routes are partially

covered by making their permits ineffective over the

overlapping part of the route. But that apart, we can see

no ground to uphold the plea of discrimination in the

present case, for routes completely covered by the route

taken over stand on a different footing from the routes only

partially covered. The contention therefore that the final

scheme as published on August 31, 1962 is bad because it

discriminates in this manner, must be rejected.

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We therefore dismiss the petition but in the circumstances

of this case pass no order asto costs.

Petition dismissed.