Full Judgment Text
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PETITIONER:
MALIK RAM
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT:
14/04/1961
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
DAS, S.K.
AYYANGAR, N. RAJAGOPALA
CITATION:
1961 AIR 1575 1962 SCR (1) 978
CITATOR INFO :
R 1963 SC 222 (36)
RF 1967 SC 603 (2,3,4,7)
RF 1967 SC1815 (11)
RF 1981 SC 660 (6)
ACT:
Motor Vehicles-Objection to scheme-Power of Officer appoint-
ed to hear such objection--Recording of
evidence--Cancellation of scheme-Motor Vehicles Act, 1939 (4
of 1939), s. 68-D(2)--Rajasthan State Road Transport
Services (Development) Rules, 1960, r. 7(6).
HEADNOTE:
By s. 68-D(2) of the Motor Vehicles Act, 1939, "The State
Government may, after considering the objections and after
giving an opportunity to the objector or his representatives
and the representatives of the State Transport Undertaking
to be heard in the matter, it they so desire, approve or
modify the scheme". The appellant’s objections to the draft
scheme in question were heard by the Legal Remembrance,
appointed by the State Government to hear such objections,
under r. 7(6) of the Rajasthan State Transport Services
(Development) Rules, 1960, framed under s. 68-1 of the Act.
The appellant applied to the said Officer for permission to
give evidence in order that he could show that the entire
scheme ought to be rejected. His applications were rejected
by the Officer holding that the Rules did not provide for
recording of evidence and that according to a decision of
the Rajasthan High Court, dated November 9, 1960, s. 68-D(2)
of the Act did not empower him to cancel the draft scheme in
its entirety. He, therefore, heard the arguments addressed
on behalf of the appellant and approved the scheme. After
moving unsuccessfully the Rajasthan High Court, the
appellant appealed to this Court by special leave,
Held, that the Officer was in error on both the points.
Section 68-D(2) of the Act clearly implies that the
authority which has to approve or modify the scheme, has
also the power, if it thinks proper, to disapprove the
scheme altogether. The words " may approve" in the section,
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properly construed, must also include "may not approve".
The use of the word "shall" in r. 7(6) of the Rules instead
of the word "may", which is otherwise similar in its terms
to s. 68-D(2) of the Act,.can make no difference.
In hearing objections under s. 68-D(2) of the Act, the State
Government or its Officers act as a quasi-judicial tribunal
and regard being to the nature of the objections and the
purpose of the hearing thereunder, there can be no doubt
that production of evidence, both oral and documentary, is
clearly contemplated by the section.
979
Gullapalli Nageswara Rao v. Andhra Pradesh State Road
Transport Corporation, [1959] Supp. 1 S.C.R. 319, referred
to.
Bat that does not mean that the parties can produce any
amount of evidence merely to prolong the proceeding. It is
for the State Government or the Officer to decide whether
the evidence sought to be adduced is necessary and relevant
to the enquiry and, if so, they will have all the powers
that a court has of controlling the giving and recording of
such evidence.
Where a draft scheme is disapproved under s. 68-D(2) and
thus stands rejected, any fresh scheme that may have to be
framed, must be framed according to the procedure prescribed
by Ch. IVA of the Act.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 135 of 1961.
Appeal by special leave from the judgment and order dated
January 3, 1961, of the Rajasthan High Court, Jodhpur, in
Civil Writ Petition No. 1 of 1961.
M. K. Nambiar, R. K. Garg, D. P. Singh, M. K. Ramamurthi and
S. C. Agarwala, for the appellant petitioner.
H. N. Sanyal, Additional Solicitor-General of India, C. C.
Kasliwal, Advocate-General of Rajasthan, Khan Singh and D.
Gupta, for the respondents.
1961. April 14. The Judgment of the Court was delivered by
WANCHOO, J.-These two connected matters arise out of an
order approving a scheme framed under Chap. IV-A of the
Motor Vehicles Act, No. IV of 1939, (hereinafter referred to
as the Act) and will be disposed of together. The brief
facts necessary for present purposes are these. The
appellant was plying a bus between Jaipur and Ajmer on a
permit granted to him for three years by resolution of the
Regional Transport Authority, Jaipur, dated December 16/17,
1958. In August, 1960, the State Government promulgated
rules under s. 68-1 of the Act, called the Rajasthan State
Road Transport Services (Development) Rules, 1960
(hereinafter called the Rules). The Rules were framed for
carrying out the purposes of Chap. IV-A of the Act and
provided inter alia for framing of schemes, hearing of
objections, determination and payment of
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compensation, and other incidental matters. A draft scheme
was published on September 7, 1960, for taking over the
Jaipur-Ajmer route. The appellant made objections to the
draft scheme within the time allowed by the notification
thereof. The State Government appointed the Legal
Remembrancer to hear and decide the objections under r. 7 of
the Rules. It appears that in the meantime an application
was made under Art. 226 by some bus operators before the
Rajasthan High Court challenging the constitutionality of s.
68-D of the Act and the legality of the Rules framed by the
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State Government. This application was dismissed and the
High Court inter alia decided while considering r. 7(6) that
it was not open to the officer hearing the objections to
cancel the draft scheme and seems to have held that there
was no such power even under s. 68-D(2) of the Act. This
decision was given on November 9, 1960. The draft scheme
came up for consideration before the officer appointed to
hear objections on November 21,, 1960. An application was
made before him that the appellant should be permitted to
give evidence on points of fact which were narrated in the
application in order that the officer may be in a position
to decide the objections justly. This application was
rejected by the officer on the ground that there was no
provision in the Rules for recording of evidence of
witnesses. The matter then came up for consideration on
November 23, 1960. On that date another application was
made in which it was said that the appellant wanted to lead
evidence to show that the draft scheme must be rejected in
its entirety, and it was contended that the view taken by
the Rajasthan High Court to the effect that it was not open
to the officer to cancel a draft scheme was incorrect. This
application was also rejected by the officer with the
observation that he was bound hand and foot by the decision
of the Rajasthan High Court and if there was anything wrong
in the interpretation given by the High Court the remedy lay
elsewhere. Thereafter the officer gave a hearing to the
appellant in the sense that he heard arguments on behalf of
the appellant and approved the draft scheme
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by his order dated December 7, 1960. The approved scheme
was then published on December 12,1960. On January 9, 1961,
the Regional Transport Authority informed the appellant that
his permit was cancelled, as from January 26, 1961, or such
later date from which the buses of Rajasthan State Roadways
begin to operate on the above-mentioned route. In the
meantime, the appellant unsuccessfully moved the Rajasthan
High Court, and his prayer for leave to appeal to this Court
was also rejected. The appellant then applied for special
leave to appeal to this Court which was granted; and that is
how the matter has come up before us.
Two main points have been urged before us on behalf of the
appellant, namely, (i) the officer was wrong in the view he
took that it was not open to him to reject the draft scheme
in its entirety, and (ii) the officer was wrong in holding
that he could not take evidence, whether oral or
documentary, and all that he had to do under s. 68-D of the
Act was to hear arguments on either side. It is contended
that in view of these two wrong decisions of the officer
his approach to what he had to do in dealing with
objections under s. 68-D was quite incorrect., with the
result that there was no effective hearing of the objections
and any approval given to the scheme in these circumstances
is liable to be set aside and the appellant is entitled "to
be heard" in the real sense in which those words were used
in s. 68-D (2).
Re. (i).
Section 68-D (2) with which we are concerned is in these
words:-
"The State Government may, after considering
the objections and after giving an opportunity
to the objector or his representatives and the
representatives of the State transport
undertaking to be heard in the matter, if they
so desire, approve or modify the scheme."
The view taken by the Rajasthan High Court in its decision
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of November 9, 1960, seen-is to be that this section does
not justify what it called the cancellation of the scheme.
We are of the opinion that this view is
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not correct. What s. 68-D(2) provides is that after hearing
the parties, the State Government may approve or modify the
draft scheme. This in our opinion clearly implies that the
authority which has to approve or modify the scheme has the
power also, if it so thinks fit, not to approve the scheme
at all. What is before the. State Government under s. 68-D
(2) is a draft scheme. That sub-section provides that the
State Government may approve or modify the scheme; that does
not mean that the State Government is bound to approve the
scheme with or without modifications. An authority to which
power has been given to approve or modify some proposal has
certainly in our opinion the power to say that it will not
approve the proposal at all, for the words "may approve" on
a reasonable interpretation include "may not approve". If a
person may approve he is not bound to approve. Up to the
stage when the hearing takes place under sub-s.(2) the draft
scheme is merely a proposal before the State Government and
it will only become effective if it approves of it with or
without modifications. But this power clearly implies the
power to say that it does not approve the draft scheme at
all; and if it says that, the draft scheme will stand
rejected and the State Transport Undertaking may have to
submit another scheme for approval. When s. 68-E speaks of
cancellation it refers to a scheme already approved under s.
68-D(3), and in that con. text the word "cancellation" is
properly used. But the fact that s. 68-E provides for the
cancellation of a scheme which has already been approved,
does not mean that it is not open to the State Government
under s. 68-D(2) to say, after hearing the objections, that
it does not approve the scheme at all which is put up before
it as a draft for approval. We are therefore of the opinion
that under s. 68-D(2) it is open to the State Government to
say after hearing objections that it does not approve of the
draft scheme at all, in which case the draft scheme will
stand rejected and the State Transport Undertaking may have
to frame a fresh scheme in accordance with the procedure
provided in Chap. IV-A. The officer therefore was wrong
983
in holding that he had no power to reject the scheme in the
sense that he could withhold approval of it altogether,
though we may add that he came to that conclusion because of
the earlier decision of the Rajasthan High Court.
As for r. 7(6) of the Rules it is in similar terms as s. 68-
D(2) and must therefore mean what we have said above with
respect to s. 68-D(2). If, however, by the use of the word
"shall" in r. 7(6) in place of the word "may" which appears
in s. 68-D(2) the intention is to curtail the power of the
officer hearing the objections, the rule would be bad as
going beyond what is provided in s. 68-D(2). But we do not
think that the use of the word "shall" in r. 7(6) makes any
difference, for the word "shall" had to be used there
according to the rules of English Grammar and has no greater
force than the word "may used in s. 68-D(2)
The learned Additional Solicitor-General who appeared for
the State of Rajasthan did not contest that what we have
said above was the true position in s. 68-D(2) and r. 7(6).
Re. (ii)
The next question is the scope of the hearing under s. 68-
D(2). The officer has held that the scope of the hearing is
confined only to hearing of arguments and no more, and that
is why he rejected the prayer of the appellant for leading
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evidence, whether oral or documentary. Now it has been held
by this Court in Gullapalli Nageswara Rao v. Andhra Pradesh
State Road Transport Corporation (1) that a State Government
acts as a quasi-judicial tribunal when giving a hearing
under s. 68-D. The purpose of the hearing is that the State
Government has to satisfy itself that the opinion of the
State Transport Undertaking formed under s. 68-C, namely
that the scheme is for the purpose of providing an
efficient, adequate, economical and properly coordinated
road transport service, is correct. The objections are all
made to show that the scheme does not provide for an
efficient, adequate, economical and properly coordinated
road transport
(1) [1959] Supp. 1 S.C.R. 319
984
service. In order therefore to arrive at the conclusion
that the draft scheme provides for a transport service of
this nature, the State Government as a quasi-judicial
authority may require materials to come to that conclusion..
A hearing before a quasi-judicial authority does not merely
mean an argument; it may in proper cases include the taking
of evidence, both oral and documentary. It seems to us that
in the circumstances of the provision contained in s. 68-
D(2) and the purpose of the hearing thereunder, taking of
evidence, whether oral or documentary, that maybe desired to
be produced by either party, may be necessary before the
State Government can arrive at a just conclusion with
respect to the objections to the draft scheme. We cannot
therefore agree with the officer that there is no warrant
for taking any evidence at all at a hearing under s. 68-
D(2). It seems to us, considering the nature of the
objections and the purpose for which the hearing is given,
that production of evidence, either oral or documentary, is
comprehended within the hearing contemplated in s. 68-D(2).
The officer therefore was wrong in loading that it was not
open to the parties to produce evidence before him and they
were confined only to submit their arguments on the basis of
the draft scheme on the one hand and their written
objections on the other.
We may however point out that the production of evidence
(documentary or oral) does not mean that the parties can
produce any amount of evidence they like and prolong the
proceedings inordinately and the State Government when
giving the hearing would be powerless to check this. We
need only point out that though evidence may have to be
taken under s. 68-D(2) it does not follow that the evidence
would be necessary in every case. It will therefore be for
the State Government, or as in this case the officer
concerned, to decide in case any party desires to lead
evidence whether firstly the evidence is necessary and
relevant to the inquiry before it. If it considers that
evidence is necessary, it will give a reasonable opportunity
to the party desiring to produce evidence to give evidence
relevant to the enquiry and within reason and it
985
would have all the powers of controlling the giving and the
recording of evidence that any court has. Subject therefore
to this over-riding power of the State Government or the
officer giving the hearing, the parties are entitled to give
evidence either documentary or oral during a hearing under
s. 68-D(2).
In view of what we have said above the approach of the
officer in this case was wrong on both the points. He was
wrong in his view that it was not open to him to reject the
scheme in toto and withhold approval altogether. He was
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also wrong in the view that it was not open to him to take
evidence, whether oral or documentary, though of course, as
we have said above the control on this evidence must be in
him. The result of this wrong approach to our mind has
certainly been that the appellant did not get a hearing to
which he was entitled under s. 68.D(2). In the circumstances
we must hold that the approval of the scheme was without a
proper hearing under s. 68-D(2), which, even though
arguments were heard in full in this case, vitiates the
approval given to the scheme by the officer concerned. We
therefore allow the appeal and set aside the order of the
officer concerned approving the scheme and direct that the
draft scheme be reconsidered by the said officer or such
other officer as the State Government may appoint hereafter
after giving a hearing in the light of the observations we
have made above. The appellant will get his costs from the
State of Rajasthan.
In the circumstances no order is necessary in the writ
petition, which is hereby dismissed. We pass no order as to
costs in the writ petition.
Petition dismissed.
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986