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PETITIONER:

RAM KRISHNA VERMA ETC. ETC.

Vs.

RESPONDENT:

STATE OF U.P. AND ORS. ETC. ETC.

DATE OF JUDGMENT31/03/1992

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

KASLIWAL, N.M. (J)

CITATION:

1992 AIR 1888 1992 SCR (2) 378

1992 SCC (2) 620 JT 1992 (2) 545

1992 SCALE (1)762

ACT:

Motor Vehicles Act 1939 :

Sections 68-C, 68-D and 68-F Motor Vehicles Act, 1988-

Sections 80 and 98-Grant of permit to private operators on

nationalised routes-Draft scheme published under old Act-

Private operators obtaining permits under new Act for routes

covered by the scheme-Grant of permit to any other operator

for the routes covered by the scheme-Whether illegal and

without jurisdiction-Whether corridor protection

permissible.

Constitution of India 1950 :

Article 136, 141, 142 and 226 Court should neutralise

any undeserved and unfair advantage gained by party invoking

its jurisdiction.

Precedents-Practice and Procedure-Supreme Court two

Judge bench not to over rule decision of three judge bench.

Administrative Law.

Natural Justice-Principle of right to hearing-

Forfeiture of-When party obtains undue advantage by

protracting proceedings and nullifying objective.

HEADNOTE:

To nationalise the Saharanpur - Shahdara - Delhi route

a draft scheme dated 26 th February, 1959 was published, and

the approved scheme published on September 29, 1959 was

quashed by the high Court by judgments dated October 31,

1961 and February 7, 1962 as against 50 operators and being

upheld against other 50 operators. The State Govt. was

permitted to given fresh hearing to the 50 objectors, on the

basis of the original proposal which was upheld in Jeewan

Nath Bahl & Ors. v. State of U.P.

Out of the 50 operators some filed successive suits and

obtained

379

injuction from different courts scuttling the hearing and

keeping it pending for well over 25 years.

A writ petition was filed in this Court assailing, that

the delay in approving the scheme amounts to an abuse of

process of law, and that public interest thereby suffered,

and the Court held in Shri Chand etc. v. Govt. of U.P. &

Ors., [1985] Suppl. 2 SCR 688 that the delay of 26 years in

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disposing of the objections resulted in violation of

Articles 14 and 19(1)(g) of the Constitution, and

accordingly quashed the draft scheme dated February 26,

1959. The Government was directed to frame the scheme

afresh, if necessary.

Pursuant thereto the U.P. State Road Corporation

published the draft scheme on February 13, 1986. While it

was pending the Motor Vehicles Act 59 of 1988 came into

force with effect from July 1, 1989. Bulandshahr to Delhi

route was also nationalised in the approved scheme published

in the State Gazette dated September 27, 1986.

After the 1988 Act came into force, the respondents

applied for and were granted permits for Saharanpur to

Ghaziabad via Shahdara routes etc.

The appellants filed the writ petitions in the High

Court and the same were dismissed by judgment dated July 23,

1990. The draft scheme published in 1986 was held by the

hearing authority to have been lapsed by operation of

Section 100(4) of the Act.

In the writ petition filed by the S.T.U. the High Court

by its judgment dated March 16, 1990 held that the draft

scheme stood lapsed within one year from the date of the

publication of the draft scheme, and accordingly upheld the

order of the hearing authority. S.L.P. No. 6300/91 was

filed against this judgment.

Special Leave Petition Nos. 9701/90, 9702/90 and

2083/91 were filed against the High Court's judgment

dismissing the writ petitions in which grant of permits

under Section 80 of the Motor Vehicles Act on the

Muzaffarnagar - Chausana; Ghaziabad to Shahdra. Saharanpur

to Ghaziabad covered and partly overlapping nationalised

routes were questioned.

On the questions : (1) what is the effect of Shri Chand

etc. v. Govt.

380

of U.P. over Jeevan Nath Bahl & Ors. v. State of U.P. and

(2) whether the draft scheme dated February 13, 1986 stood

lapsed under Section 100(4) of the Act.

Granting special leave and allowing the appeals the

Court,

Held : 1(a) Consistent law laid down by this Court is

that draft scheme under Section 68-C and approved under

Section 68-D of Chapter IVA of the Repealed Act (Chapter VI

of the Act), is a law and it has overriding effect over

Chapter IV of the repealed Act (Chapter V of the Act). It

operates against everyone unless it is modified. It

excludes private operators from the area or route or a

portion thereof covered under the scheme except to the

extent excluded under that scheme itself. The right of

private operators to apply for and to obtain permits under

Chapter IV of the repealed Act (Chapter V of the Act) has

been frozen and prohibited. [389B-C]

(b) The nationalisation of Saharanpur - Shahdara -

Delhi route approved and published on September 29, 1959

became final and to that extent it cannot be said to have

been quashed by this Court in Sri Chand's case. The

approved scheme is law operating against everyone except 50

objectors/operators and the writ issued by this Court cannot

have the effect of annuling the law. What was quashed and

issue of fresh draft scheme pursuant thereto, relate to only

of original draft scheme operative against 50

objectors/operators and no more. Even no principle, the

decision of a Bench of two Judges cannot have the effect of

overruling the decision of a Bench of three Judges. The

fresh draft scheme under Section 68-C dated February 13,

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1986 must, therefore, be construed to be only in relation to

50 existing operators as per the directions that ultimately

emerged in Jeevan Nath Bahl's case. [389D-E]

Mysore State Road Transport Corporation. v. Mysore

Transport Appellate Tribunal, [1975] 1 SCR 615; Adarsh

Travels Bus Service v. State of U.P. & Ors., [1985] Suppl. 3

SCR 661; H.C. Narayanappa & Ors. v. State of Mysore & Ors.,

[1960] 3 SCR 742; Nehru Motor Transport Co-op. Soc. & Ors.

V. State of Rajasthan & Ors.,[1964] 1 SCR 220 and S. Abdul

Khader Saheb v. Mysore Revenue Appellate Tribunal & Ors.,

[1973] 1 SCC 357, referred to.

2(a) On harmonious construction of ss.217(2)(e) and

100(4) of the Act, the draft scheme published under s. 68-C

of the Repealed Act would

381

stand lapsed only if it is not approved within one year from

the date when the Act came into force i.e. with effect from

July 1, 1989 by which date it was pending before the hearing

authority and one year had not expired. The hearing

authority, therefore, wrongly concluded that the draft

scheme stood lapsed. The High Court also equally committed

illegality following its earlier view which stood overruled

by this court in Krishana Kumar's case. The view of the

High Court and the hearing authority is therefore clearly

illegal. [389H-390B]

Krishna Kumar v. State of Rajasthan & Ors., [1991] 4

SCC 258, referred to.

(b) The nationalisation of Saharanpur - Shahdara -

Delhi route by publication of the approved scheme on

September 29, 1959 is operating to the total exclusion of

every private operator except U.P. State Road Transport

Corporation and 50 operators including the appellants whose

objection were upheld by the High Court in the first

instance and merged in the judgment of this Court in Jeevan

Nath Bahl's case. [390C]

(c) Under Section 80 of the Act no private operator has

right to apply for and obtain permits to ply the stage

carriages on the approved or notified route/routes or areas

or portion thereof. The grant of permits to the private

operators on the respective routes or part, or portion

thereof to provide transport service is therefore clearly

illegal and without jurisdiction. [390E]

Mithlesh Garg & Ors. v. Union of India & Ors., [1992] 1

SCC 168, referred to.

(d) By operation of Section 98 of the Act, Chapter VI

overrides Chapter V and other law and shall have effect

notwithstanding anything inconsistent therewith contained

in Chapter V or any other law for the time being inforce or

any instrument having effect by virtue of such law. The

result is that even under the Act existing scheme under the

repealed Act or made under Chapter VI of the Act shall have

over-riding effect on Chapter V notwithstanding any right

given to private operators in Chapter V of the Act. No

corridor protection to private operators is permissible.

[390G-391A]

(e) The 50 operators including the appellants/private

operators have been running their stage carriage by blatant

abuse of the process of the

382

court by delaying the hearing as directed in Jeevan Nath

Bahl's case and the High Court earlier thereto. As a fact,

on the expiry of the initial period of grant after September

29, 1959 they lost the right to obtain renewal or to ply

their vehicles, as this court declared the scheme to be

operative. However, by sheer abuse of the process of law

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they are continuing to ply their vehicles pending hearing of

the objections. [391D]

(f) While exercising its jurisdiction this Court would

do complete justice and neutralise the unfair advantage

gained by the 50 operators including the appellant in

dragging the litigation to run the stage carriages on the

approved route on area or portion thereof and forfeited

their right to hearing of the objections filed by them to

the draft scheme dated February 26, 1959. [391F]

(g) Moreover, since this court in Jeevan Nath Bahl's

case upheld the approved scheme and held to be operative the

hearing of objections would be a procedural formality with

no tangible result. Therefore, the objection outlived their

purpose. They are, therefore, not entitled to any hearing

before the hearing authority. [391G-H]

Grindlays Bank Ltd. v. Income Tax Officer & Ors.,

[1980] 2 SCC 191, referred to.

3. The grant of permits to all the respondents/private

operators and respondents Nos. 7 to 28 in S.L.P. No. 9701/90

under Section 80 of the Act or any others on the respective

routes, parts or portions of the nationalised routes of

February 13, 1986 draft scheme are quashed. The hearing

authority shall lodge the objections of the 50 operators

including the appellants in the appeals. The competent

authority shall approve the drafts scheme of 1986 within a

period of 30 days and publish the approved scheme in the

gazette. The permits granted to the 50 operators or any

others shall stand cancelled from that date, if not having

expired in the meanwhile. No permits shall be renewed.

Action should be taken by respondents 3 to 4 in S.L.P. No.

9701/90 to see that all the permits granted to the 50

operators including the appellants are seized and cancelled.

The U.P. State Transport Corporation shall obtain the

required additional permits, if need be, and put the stage

carriages on the routes to provide transport service to the

travelling public immediately on publication of the approved

draft scheme in the State Gazette. [392A-D]

383

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1198,

1199, 1200 & 1201 of 1992.

From the Judgment and Orders dated 2.5.1990, 16.3.1990 &

5.10.1990 of the Allahabad High Court in W.P. NO. 212/90.

C.M.W.P. No. 7735/89 C.M.W.P. No. 15865/86 and C.M.W.P. No

nil of 1990.

Raja Ram Aggarwal, H.N. Salve, V.J. Francis, B.B. Singh

Gaurav Jain, N.K. Goel, Ms. Abha Jain, Raju Ramachandran and

Sunil Kr. Jain for the Appellants.

B.S. Chauhan and Mrs. Rani Chhabra for the Respondents.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. Special leave granted.

These four cases have behind chequered history of the

draft scheme dated February 26, 1959 published under Sec.

68-C of the Motor Vehicles Act, 1939, for short `the

repealed Act' was kept hanging for 25 to 35 years. The

draft scheme dated 26th February, 1959 was published to

nationalised Saharanpur - Shahdara - Delhi route. The

approved scheme published on September 29, 1959 was quashed

by the Allahabad High Court by judgments dated October 31,

1961 and February 7, 1962 as against 50 operators and was

upheld against other 50 operators. It was further held that

the State Govt. was at liberty to give fresh hearing to the

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50 objectors on the basis of the original proposal which was

upheld by this court in Jeewan Nath Bahl & Ors. v. State of

U.P., (C.A. No 1616 of 1968 dated April 3, 1968), observing

thus :

"The effect of the order passed by the High Court

in the two groups of writ petitions was clearly

that the scheme in its essence was not affected,

but it was directed that it was not liable to be

enforced against the 32 petitioners who applied to

the High Court in the first round of petitions and

against 18 petitioners in the second group of

petitions. If that be the true effect of the

order there is in our judgment, a scheme in

existence which must have the statutory operation

contemplated by Section 68-F on the Motor Vehicles

Act."

The record discloses that out of 50 operators some of

them filed

384

successive suits and obtined injuction from different courts

scuttling the hearing and kept pending for well over 25

years. Shri Chand and Others filed Writ Petition No. 11744

of 1985, etc. in this court assailing that the delay in

approving the scheme amounts to abuse of process of law and

public interest thereby suffered. By judgment in Shri

Chand, etc. v. Govt. of U.P. & Ors., [1985] Suppl. 2 SCR

688, this court held that the delay of 26 years in disposing

of the objections resulted in violation of Acts. 14 and

15(1)(g) of the Constitution. The drafts scheme dated

February 26, 1959 was accordingly quashed. It directed the

Govt. to frame the scheme afresh, if necessary, Pursuant

thereto the U.P. State Road Corporation Published the draft

scheme on February 13, 1986. While it was pending the motor

Vehicles Act 59 of 1988, for short `the Act' came into

force with affect from July 1, 1989. Bulandshahr to Delhi

route was also nationalised in the approved scheme published

in the State Gazette dated September 27, 1956.

After the Act came into force, the respondents applied

for and were granted permits for Saharanpur to Ghaziabad via

Shahdara routes etc. The appellants filed the writ

petitions in the High Court of Allahabad at Lucknow

questioning the validity thereto which was dismissed by

judgment dated July 23, 1990. The draft scheme published in

1986 was held by the hearing authority to have been lapsed

by operation of Sec.100(4) of the Act. In the Writ petition

filed by the S.T.U. the High Court by its judgment dated

March 16, 1990 held that the draft scheme stood lapsed

within one year from the date of the publication of the

draft scheme and accordingly upheld the order of the hearing

authority against which the appeal (S.L.P. No. 6300/91) wad

filed. Special Leave petition Nos. 9701/90, 9702/90 and

2083/91 arise against the High Court's Judgment dismissing

the writ petitions in which grant of permits under s.80 of

the Act on the Muzaffarnagar - Chausana; Ghaziabad to

Shahdara; Saharanpur to Ghaziabad covered and partly

overlapping nationalised routed were questioned. Thus these

appeals by special leave.

In Jeevan Nath Bahl's case (C.A. No. 1616/68), this

court held that the scheme was not affected and the true

effect of the orders passed by the High Court in respect of

50 operators was deduced thus, "in our judgment a scheme is

in existence which must have the statutory operation

contemplated by Sec. 68-F of the Motor Vehicles Act......"

It was further held that the judgment of the High court "was

only intended to prohibit the enforcement of the scheme

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against two groups of petitioners, who had

385

approached the High Court challenging the validity of the

orders sanctioning the scheme". The result is that the

scheme would operate as against every other person other

than the fifty operators and the S.T.U. has the exclusive

right to ply its vehicles on the notified route. 50

operators not only continuted to ply there vehicles till

expiry of their permits but managed to ply till date.

In Mysore State Road Transport Corporation v. Mysore

State Transport Appellate Tribunal, [1975] 1 SCR 615, this

court held thus:

"Any route or area either wholly or partly can be

taken over by a State Undertaking under any scheme

published, approved and notified under the

provisions of Ch. IV-A of the Act inserted by Sec.

62 of Act 100 of 1956. If, therefore, the scheme

prohibits private transport owners to operate on

the notified area or route or any portion

therefore, the Regional Transport Authority cannot

either renew the permit of such private owners or

give any fresh permit in respect of a route which

overlaps the notified route. In considering the

question whether when one party has monopoly over a

route, a licence can be granted to any other party

over any part of that route, the distinction

between 'route" and "highway" is not at all

relevant. Where a private transport owner makes an

application to operate on a route which overlaps

even a portion of the notified route, then that

application has to be considered only in the light

of the scheme as notified. If any conditions are

placed then those conditions have to be fulfilled

and if there is a total prohibition then the

application must be rejected. There is no

justification for holding that the integrity of the

notified scheme is not affected if the overlapping

is under five miles or because a condition has been

stipulated in the permit that the operation will

not pick up or set down any passengers on the

overlapped route."

In Adarsh Travels Bus Service v. State of U.P. & Ors.

[1985 Suppl. 3 SCR 661, this court held thus:

"Where a route is nationalised under Chap IV-A of

the Act, a private operator with a permit to ply a

stage carriage permit over another route but which

has a common overlapping sector

386

with the nationalised route cannot ply his vehicle

over that part of the overlapping common Sector,

even if with corridor restrictions, that is, he

does not pick up or drop passengers on the

overlapping part of the route.

While the provisions of Chapter IV-A are devised to

override the provisions of Chapter IV and it is

expressly so enacted, the provisions of Chapter IV-

A are clear an complete regarding the manner and

effect the "take over" of the operation of a road

transport service by the State Transport

Undertaking in relation to any area or route or

portion thereof. While on the one hand, the

paramount consideration is the public interest, the

interest of the existing operators are sufficiently

well-taken care of and slight inconvenient

inevitable are sought to be reduced to a minimum.

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A perusal of s. 68-C, s. 68-D(3) and S.68-FF in the

light of the definition of the expression `route'

in S.2(28A) appears to make it manifestly clear

that once a scheme is published under S. 68-D in

relation to any area or route or portion thereof,

whether to the exclusion, complete or partial of

other persons or otherwise, no person other than

the State Transport Undertaking may operate on the

notified or national route except as provided in

the scheme itself. A necessary consequence of

these provisions is that no private operator can

operate his vehicle on any part of portion of a

notified area or notified route unless authorised

so to do by the terms of the scheme itself. He may

not operate on any part or portion of the notified

route or area on the mere ground that the permit as

originally granted to him covered the notified

route or area. The private operator cannot take

the plea of inconvenience of the public. If indeed

there is any need for protecting the travelling

public from inconvenience the State Transport

Undertaking and the Government will make a

sufficient provision in the scheme itself to avoid

inconvenience being caused to the travelling

public."

The contention of Shri Harish Salve, the learned Senior

counsel for contesting respondents, is that the scheme of

nationalisation relates to "any area, route or portion

thereof". In Shri Chand's case this court quashed the

387

draft scheme dated February 26, 1959 taking over the

Saharanpur-Shahdara-Delhi route. The fresh draft scheme

dated February 13, 1986 to nationalise Saharanpur-Shahdara-

Delhi route stood lapsed by operation of s. 100(4) read with

s.217(2)(e) of the Act. Therefore, the grant of permits to

the respondents is valid in law. In Shri Chand's case this

court quashed the draft scheme dated February 26, 1959 as it

was an abuse of the process of law to keep draft scheme

pending for well over 26 years creating monopoly in favour

of the 50 existing operators who compete with the state.

The review petition filed by the U.P. Govt. in Shri Chand's

case was rejected by this court. The result is that there

is no scheme on Saharanpur to Delhi route. The High Court

thereby was justified in dismissing the write petitions.

In H.C. Narayanappa & Ors. v. State of Mysore & Ors.,

[1960] 3 SCR 742 the Constitution Bench held that the scheme

framed under s. 68-C of the repealed Act is law within the

meaning of Arts.13 and 19(6) of the Constitution. It

excludes the private operators from notified routes or

areas. It immunes from the attack that it impinges the

fundamental rights guaranteed under Art. 19(1)(g). It also

could not be challenged as discriminatory. In Nehru Motor

Transport Co-op. Society & Ors. v. State of Rajasthan &

Ors., [1964] 1 SCR 220, another Constitution Bench held that

the Act 4 of 1939 (repealed Act) does not provide for review

of an approval once given though it may be entitled to

correct any clerical mistakes or inadvartent slips that may

have crept in the order. It was also held that once a

scheme was finally approved and published in the gazette, it

is final and the approval of the scheme was as a whole. In

Jeevan Nath Bahl's case a Bench of three Judges of this

court held that the effect of the order passed by the high

Court in the first instanace was that the scheme in

existence must have statutory operation contemplated by

s.68-F of the Motor Vehicles Act and that the order of the

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High Court intended to prohibit the enforcement of the

scheme against two groups of the petitioners in the High

Court, namely then existing 50 operators who challenged the

scheme. It is seen that Bulandshahr or Delhi route was

nationalised by publication of the approved scheme in the

gazette on October 6, 1956 and the approval of Saharanpur-

Shahdara-Delhi route on September 29,1959 became final.

Therefore, the routes or areas therein stood nationalised to

the complete exclusion of the private operators except to

the extent under the scheme therein i.e. the 50 operators

against whome it was held not to be operative till their

objections are heard and decided by

388

the hearing authority.

In Mysore State Road Transport Corporation's case, this

court per majority held that where a part of the Highway to

be used by private Transport owners traverse on a line on

the same highway on the notified route, then that

application has to be considered only in the light of scheme

as notiofied. If any conditions are placed then those

conditions have to be fulfilled and if there is a total

prohibition then the application must be rejected. If there

is a total prohibition then the application must be

rejected. If there is a prohibition to operate on any

notified route or routes, no licence can be granted to any

private operators, whose route traversed or overlapped in

part or whole of that notified route. The inter-section of

the notified routes must amount to traverse or overlapping

the routes because the prohibition must apply to the whole

or part of the route on the highway on the same line or the

route and inter-section cannot be said to be traversing the

same line. In S. Abdul Khader Saheb v. Mysore Revenue

Appellate Tribunal & Ors., [1973] 1 SCC 357, this court

approved the view of the Karnataka High Court that, when

once on a route or a portion of the route there has been

total exclusion of the operation of the stage carraige

services by operators other than the State Transport

Undertaking, by virtue of a clause in an approved scheme the

authorities granting permit under Chapter IV of the Motor

Vehicles Act should refrain from granting the permit

contrary to the scheme. In Adarash Travels's case this

court by a Constitution Bench held that there is a total

prohibition of private operators from plying the state

carriages on the whole or part of the notified routes, even

though there is partial overlapping on the said route or

routes. The operation of the Road Transport Service by the

State Road Transport Undertaking in relation to that area or

route or portion thereof is total and complete prohibition

of the operation of the Road Transport Service by private

operators. The operation of the Road Transport Service by

the State Undertaking in relation to that area or route or a

portion thereof overrides the provisions of Chapter IV of

the Repealed Act 4, 1939. This court also rejected the

contention of the operators that on the nationalised

approved routes or overlapped route the private operator is

entitled to ply the stage carriages without picking up or

setting down any passengers on the common sector. This

court also negatived as lacking substance of the contention

that complete exclusion of private operators from common

sector would be violative of Art. 14 and that it would be

ultra vires of s. 68-D. This court approved the majority

view in M/s State Road Transport Corporation's case and

Abdul Khader Shaheb's case.

389

It is unfortunate that Jeevan Nath Bahl's case was not

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brought to the notice of the two Judges Bench when Shri

Chand's case was decided. Despite it being pointed out in

the Review Petition, the same was dismissed. The question

is what is the effect of the decision in Sri Chand's case

over Jeevan Nath Bahl's case. Consistent law laid down by

this court is that draft scheme under s. 68-C and approved

under s.68-D of Chapter IVA of the Repealed Act (Chapter VI

of the Act), is a law and it has overriding effect over

Chapter IV of the repealed Act (Chapter V of the Act). It

operates against everyone unless it is modified. It

excludes private operators from the area or route or a

portion thereof covered under the scheme except to the

extent excluded under that scheme itself. The right of

private operators to apply for and to obtain permits under

Chapter IV of the repealed Act (Chapter V of the Act) has

been frozen and prohibited. The result that emerges

therefrom it that the nationalisation of Saharanpur -

Shahdara - Delhi route approved and published on September

29, 1959 became final and to that extent it cannot be said

to have been quashed by this court in Sri Chand's case. The

approved scheme is law operating against everyone except 50

objectors/operators and the writ issued by this court cannot

have the effect of annuling the law. What was quashed and

issue of fresh draft scheme pursuant thereto, relate to only

of original draft scheme operative against 50

objectors/operators and no more. Even on principle, the

decision of a Bench of two Judges cannot have the effect of

overruling the decision of a Bench of three Judges. The

fresh draft scheme under s.68-C dated February 13,1986 must,

therefore, be construed to be only in relation to 50

existing operators as per the directions ultimately emerged

in Jeevan Nath Bahl's case.

The next question is whether the draft scheme dated

Feb. 13, 1986 stood lapsed under S. 100(4) of the Act. The

High Court relied on its earlier judgment and held that by

operation of sub-sec. 4 of s.100 of the Act the draft

scheme stood lapsed from one year of the date of its

publication. In Krishan Kumar v. State of Rajasthan &

Ors., [1991] 4 SCC 258 this court considered the effect of

s. 100(4) read with s. 217(2)(e) of the Act and held that

the rigour of one year period provided under s. 100(4) would

apply to the draft scheme published under s.100(1) of the

Act and it would not apply to the scheme framed under s. 68-

C and pending as on the date of the commencement of the Act.

On harmonious construction of ss.217(2)(e) and 100(4) of the

Act, the draft scheme published under s.68-C of the Repealed

Act would stand lapsed only if it is not approved within

390

one year from the date when the Act came into force i.e.

with effect from July 1, 1989 by which date it was pending

before the hearing authority and one year had not expired.

The hearing authority, therefore, wrongly concluded that the

draft scheme stood lapsed. The High Court also equally

committed illegality following its earlier view which now

stood overruled by this court in Krishan Kumar's case.

Accordingly it must be held that the view of the High Court

and the hearing authority is clearly illegal.

The result of the above discussion will lead to the

following conclusions :

The nationalisation of Saharanpur - Shahdara - Delhi

route by publication of the approved scheme on September 29,

1959 is operating to the total exclusion of every private

operator except U.P. State Road Transport Corporation and 50

operators including the appellants herein whose objections

were upheld by the High Court in the first instance and

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merged in the judgment of this court in Jeevan Nath Bahl's

case. Equally of Bulandshar to Delhi route. Under s. 80 of

the Act no private operator has right to apply for and

obtain permits to ply the stage carriages on the approved or

notified route/routes or areas or portion thereof. The

grant of permit to all the respondents 7 to 285 private

operators in C.A. 1198/92 S.L.P. No 9701/90) or any others

under s.80 of the Act on the respective routes or part, or

portion thereof to provide transport service is clearly

illegal and without jurisdiction.

It is true as contended by Shri Salve that in Mithilesh

Garg & Ors. v. Union of India & Ors., [1992] 1 SCC 168, this

court held that the liberal policy of grant of permits under

s.80 of the Act is directed to eliminate corruption and

favouritism in the process of granting permits, eliminate

monopoly of few persons and making operation on a particular

route economically viable and encourage healthy competition

to bring about efficiency in the trade. But the free ply is

confined to grant of permits under Chapter V of the Act. By

operation of s.98 of the Act, Chapter VI overrides Chapter V

and other law and shall have effect notwithstanding anything

inconsistent therewith contained in Chapter V or any other

law for the time result is that even under the Act the

existing scheme under the repealed Act or made under Chapter

VI of the Act shall have over-riding effect on Chapter V

notwithstanding any right given to private operators in

Chapter

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V of the Act. No corridor protection to private operators

is permissible.

Accordingly we hold that the approved scheme dated

September 29, 1959 on Saharanpur - Shahdara - Delhi route

shall continue to be valid scheme under the Act. The U.P.

State Road Transport Corporation alone shall have the

exclusive right to ply their stage carriages on the said

route and Bulandshahr - Delhi route/areas or portions

thereof. By operation of the orders passed by the Allahabad

High Court which merged in Jeevan Nath Bahl's case,

protection was given only to 50 private operators including

the appellants herein to be heard of their objections. The

fresh draft scheme dated February 13, 1986 had not been

lapsed and would continue to be in operation. It would be

confined only to 50 operators.

The 50 operators including the appellants/private

operators have been running their stage carriages by blatant

abuse of the process of the court by delaying the hearing as

directed in Jeevan Nath Bahl's case and the High Court

earlier thereto. As a fact, on the expiry of the initial

period of grant after Sept. 29, 1959 they lost the right to

obtain renewal or to ply their vehicles, as this court

declared the scheme to be operative. However, by sheer

abuse of the process of law they are continuing to ply their

vehicles pending hearing of the objections. This Court in

Grindlays Bank Ltd. v. Income-tax Officer & Ors., [1990] 2

SCC 191, held that the High Court while exercising its power

under Art. 226 the interest of justice requires that any

undeserved or unfair advantage gained by a party invoking

the jurisdiction of the court must be neutralised. It was

further held that the institution of the litigation by it

should not be permitted to confer an unfair advantage on

the party responsible for it. In the light of that law and

in view of the power under Art. 142(1) of the Constitution

this court, while exercising its jurisdiction would do

complete justice and neutralise the unfair advantage gained

by the 50 operators including the appellants in dragging the

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litigation to run the stage carriages on the approved route

or area or protion thereof and forfeited their right to

hearing of the objections filed by them to the draft scheme

dated Feb. 26, 1959. Moreover, since this court in Jeevan

Nath Bahl's case upheld the approved scheme and held to be

operative, the hearing of their objections would be a

procedural formality with no tangible result. Therefore,

the objections outlived their purpose. They are, therefore,

not entitled to any hearing before the hearing authority.

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The appeals are accordingly allowed. The grant of

permits to all the respondents/private operators and

respondents Nos. 7 to 285 in C.A. No. 1198/92 (S.L.P. No.

9701/90) under s.80 of the Act or any others on the

respective routes, parts or portions of the nationalised

routes on Feb. 13, 1986 draft scheme ar quashed. The

hearing authority shall lodge the objections of the 50

operators including the appellants herein. The competent

authority shall approve the draft scheme of 1986 within a

period of 30 days from the date of receipt of the judgment;

and publish the approved scheme in the gazette. The permits

granted to the 50 operators or any other shall stand

cancelled from that date, if not having expired in the

meanwhile. No permits shall be renewed. Appropriate action

should be taken by respondents 3 to 4 in CA No. 1198/92

(S.L.P. No. 9701/90) to see that all the permits, granted to

the 50 operators including the appellants are seized and

cancelled. The U.P. State Transport Corporation shall

obtain required additional permits, if need be, and put the

stage carriages on the routes to provide transport service

to the travelling public immediately on publication of the

approved draft scheme in the State Gazette. The Appeal

arising out of S.L.P. No. 2083/91 is allowed with costs

throughout against respondents Nos. 4 to 13. The appeals

arising out S.L.P. Nos. 6300/91, 9701/90 and 9702/90 are

allowed without costs.

N.V.K. Appeals allowed.

393