Full Judgment Text
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PETITIONER:
RAMESH CHAND ETC. ETC.
Vs.
RESPONDENT:
STATE OF U.P. AND OTHERS
DATE OF JUDGMENT04/09/1979
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
FAZALALI, SYED MURTAZA
SEN, A.P. (J)
CITATION:
1980 AIR 129 1980 SCR (1) 498
1979 SCC (4) 776
ACT:
Motor Vehicles Act, 1939, Sections 68C read with
Sections 7 & 16 of the U.P. Motor Vehicles (Special
Provisions) Act, 1976 (Act 127/76), scope of-Sections 7 and
16 of Act 127 of 1976 relates both to section 68C and 68D
i.e. to the draft scheme under section 68C and approved
scheme under section 68D of the Motor Vehicles Act, 1939-
Validity of the scheme for inter state range Agra-Dholpur
and of Agra region.
HEADNOTE:
On the question whether sections 7 and 16 of the U.P.
Motor Vehicles (Special Provisions) Act, 1976 (Act 127 of
1976) related only to "approved" Schemes under section 68D
of the Motor Vehicles Act and, therefore, the approved
scheme for inter-state range Agra-Dholpur of Agra region was
inoperative, the Court, while dismissing the Writ Petitions
and the connected special leave petitions.
^
HELD: (1) Sections 7 and 16 of U.P. Motor Vehicles
(Special Pro visions) Act, 1976 have validly provided that
the specification of the number of services is not and shall
be deemed to have never been an essential requirement in a
scheme prepared and published under section 68D of the Motor
Vehicles Act, 1939. [503A-B]
The marginal note to section 7 states "specification of
number of services not an essential requirement of section
68C or section 68D", makes the intention clear that the
section is intended to cover section 68C also. The intention
is also carried out by the Section providing that "Nothing
contained in section 68C or section 68D of the Principal Act
shall be deemed to require.. " The operation of section 7 is
thus intended to apply both to sections 68C and 68D. The
result would be that if one of the requirements of section
68C is that it should specify the number of services to be
provided, it shall be deemed that requirement was never
there. The reference to the approved scheme is because
section 68C and section 68D form part of the same procedure
of publication of a scheme and approval of the scheme. That
this is the object is put beyond all doubt by the
introduction of the validation section, section 16, which
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provides that in any scheme prepared or published under
section 68C or approved or modified under section 68D of the
Principal Act shall not be deemed to be invalid on the
ground of number of services to be provided being not
specified therein. [502F-H, 503A]
Shashi Kant Rai & ors. v. Regional Transport Authority,
Varanasi Region and ors. AIR 1978 All. 68 over-ruled.
2. Failure to specify the member of services would not
invalidate the draft scheme under section 68C or the
approved scheme under section 68D of the Motor Vehicles Act,
1939. It cannot be said that when the word "particulars" is
used in this part of section 68C, it can only be satisfied
if the exact number of vehicles and trips for each rank is
specified, and, that
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there is no other way of satisfying the requirement implicit
in the use of the A word "particulars". The exact number of
vehicles and trips for each route need not be given and all
that section 7 of the amended Act provides is that the draft
scheme as well as the approved scheme need not specify the
number of services. [504C-E]
B.B. Aswathanarayan Singh & Ors. v. State of Mysore &
ors. [1966] 1 SCR 67, applied.
(3) In the instant case, the impugned scheme cannot be
held to be inoperative for non-mentioning of the maximum or
minimum number of buses, vehicles and trips, since the
scheme notified in U.P. Gazette on 4-12-1961 gave the
required particulars. A reading of the scheme would indicate
that transport vehicles and services would be provided on
the routes taken over by country-type vehicles with 30 to 45
seats capacity. Moreover, this objection which was not taken
before the scheme was approved in 1963 would not be allowed
to be taken after a lapse of 15 years. [504 G-H, 505 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 804-810
of 1977.
Appeals by Special Leave from the Judgment and order
dated 20-10-76 of the Allahabad High Court in Writ Petitions
Nos. 1529, 1564 and 1568 to 1571/63.
AND
WRIT PETITIONS Nos. 650, 651, 652-653, 48, 394, 395,
691, 670, 680, 681, 687-688/79, 412-415, 416-418/79.
Under Article 32 of the Constitution
AND
SPECIAL LEAVE PETITION (CIVIL) NOS. 5193, 5196 and 17
5517/79
From the Judgment and order dated 20-10-1976 of the
Allahabad High Court in Civil Misc. Writ Nos. 1523, 1544,
1528, 1541 and 1527/63.
R.K. Garg, P.C. Bhartari for the Appellant in C.A.
804/77.
G. L. Sanghi and P.C. Bhartari, for the Petitioner in
W.P. No. 48/79 and in S.L.P. Nos. 5193-5196 and 5517/79.
P. C. Bhartari for the Appellant/Petitioners in C.A.
805-810/ 77 and W.P. 650, 651, 652, 653, 395, 691, 670, 680,
681, 687, 688/79 and other cases.
Shanti Bhushan P.C. Bhartari for the Petitioner in W.P.
394/79.
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S.V. Gupte, Raj Narain Munshi and Sobhagmal Jain for RR. 7
in C.A. Nos. 804-810/77 and W.P. Nos. 650/79 and SLP (C)
Nos. 5193-5196/79 and 5517/79.
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Y.S. Chitaley, Raj Narain Munshi and Sobhagmal Jain for
RR 7 in W.P. 48/79.
Raj Narain Munshi, Sobhagmal Jain and S.K. Jain for RR
7. in W.P. 651, 652, 653, 394, 395, 691, 670, 680, 651, 687-
688/79.
P.B. Sharma for RR 8 in W.P. 48/79.
O.P. Rana for the Intervener, State of U.P.
The Judgment of the Court was delivered by
KAILASAM. J. In all these appeals, writ petitions and
special leave petitions the challenge is against the
validity of the scheme framed by the State Transport
Undertaking of U.P.
In giving special leave in Civil Appeals Nos. 804 to
810 of 1977 this Court restricted the special leave by
stating "Special leave granted confined to the alleged
conflict between s. 68(c) of the Motor Vehicles Act and
sections 7 and 16 of the U.P. Amendment Act of 1976, (Act
127/1976). When the hearing in these matters started Mr.
Garg, learned counsel for the appellants, submitted that
there is no conflict between sec. 68C of the Motor Vehicles
Act, 1939 and sections 7 and 16 of the U.P. Amendment Act.
But his plea is that the amendment has not in any way
affected or cured the defect in sec. 68C and there fore the
defect in the scheme continues to render it invalid
In terms of the restricted leave granted, we do not
think it is strictly open to the learned counsel to raise
the plea which he has taken before us. But as several
matters are involved and there is a conflict between two
judgments of the Allahabad High Court we gave permission to
the learned counsel to raise this question.
The point that is raised by Mr. Garg is that the
introduction of sections 7 and 16 by the Amending Act 27 of
1976, the Uttar Pradesh Motor Vehicles (Special Provisions)
Act, 1976 does not dispense with the requirements specified
in sec. 68C as the two section relate only to approved
schemes.
In order to appreciate learned counsel’s contention it
is necessary to set out sec. 68C of the Motor Vehicles Act,
1939. Section 68C reads as follows:-
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"Where any State transport undertaking is of
opinion that for the purpose of providing an efficient,
adequate, economical and properly coordinated road
transport service, it is necessary in the public
interest that road transport services in general or any
particular class of such service in relation to any
area or route or portion thereof should be run and
operated by the State transport undertaking, whether to
the exclusion, complete or partial, of other persons or
otherwise, the State transport undertaking may prepare
a scheme giving particulars of the nature of the
services proposed to be rendered the area of route
proposed to be covered and such other particulars
respecting thereto as may be prescribed, and shall
cause every such scheme to by published in the official
Gazette and also in such other manner as the State
Government may direct."
Sec. 68C requires the State Transport Undertaking to prepare
a scheme giving particulars of the nature of the services
proposed to be rendered, the area or route proposed to be
covered and such other particulars respecting thereto as may
be prescribed. It is thus necessary that the scheme should
give (1) particulars of the services proposed to be
rendered; (2) the area or route proposed to be covered, (3)
such other particulars thereto as may be prescribed. The
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scheme prepared under sec. 68C did not specify the number of
services to be provided. The Allahabad High Court in Shashi
Kant Rai & ors. v. Regional Transport Authority, Varanasi
Region & ors. held that if the particulars regarding the
adequacy etc. Of the proposed transport services are not
given in the draft scheme then it will not be possible for
the objectors to file any effective objection to the draft
scheme in this regard and it would be difficult for the
Hearing Authority to give its decision whether the draft
scheme will be able to provide road transport services which
would fulfil the four purposes mentioned in sec. 68-C. The
Court held that the draft scheme must give particulars
indicating how the proposed transport services would be
efficient, adequate, economical and properly coordinated.
The scheme mentioned "adequate number of State transport
services, according to traffic requirements are to be
provided on the route or the portion thereof mentioned in
cl. (2) above. The learned single Judge and the Division
Bench of the Allahabad High Court were of the view that the
draft scheme prepared under sec. 68-C was defective as the
minimum number of services and the vehicles which were
proposed to be introduced on the road had not been
mentioned. In order to get over the effects of the decision
the U.P. Legislature introduced the
502
Uttar Pradesh Motor Vehicles (Special Provisions) Act, 1976
(U.P. Act No. 27 of 1976). Section 7 of the Act reads as
follows:-
"Nothing contained in section 68C or section 68D
of the principal Act shall be deemed to require or ever
to have required a specification being made in an
approved scheme of the number of services to be
provided."
Section 16 of the Act is the validating section and runs as
follows:-
"Notwithstanding any judgment decree or order of
any court, any scheme prepared or published under
section 68C, or approved or modified under section 68D
of the principal Act or purporting to have been
prepared, published, approved or modified shall not be
deemed to be or have been in valid on the ground of the
number of the services to be provided being not
specified therein."
Mr. R. K Garg, the learned counsel for the appellants,
submitted that sec. 7 is applicable only to approved schemes
i.e. for a scheme which had been approved under sec. 68D(3)
and that its object is to cure the defect in approved scheme
under sec. 68-D where the number of services provided is not
mentioned. The learned counsel would reach the section that
nothing contained in the principal Act shall be deemed to
require or ever to have required a specification of the
number of services to be provided in an approved scheme. He
would emphasise the words "approved scheme" and submit that
the change if any is as regards the particulars required
under an approved scheme under sec. 68-D and that this
section would not relate, to the scheme under sec. 68-C.
The marginal note to sec. 7 states "Specification of
number of services not an essential requirement of Section
68C or Section 68D." The intention therefore is to make
specification of number of services not an essential
requirement under sections 68C and 68D. The section
therefore is intended to cover sec. 68-C also. It is seen
the intention is carried out by the section providing that
"Nothing contained in Section 68C or Section 68D of the
principal Act shall be deemed to require .. " The operation
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of the section is thus intended to apply both to sec. 68C
and 68-D. The result would be that if one of the
requirements of sec. 68-C is that it should specify the
number of services to be provided it shall be deemed that
requirement was never there. The reference to the approved
scheme is because sec. 68-C and section 68-D form, part of
the same procedure of publication of a scheme and approval
of the scheme. That this is the object is put beyond all
doubt by introduction of the validating
503
section, section 16, which provides that in any scheme
prepared or published under sec. 68-C or approved or
modified under sec. 68D of the principal Act shall not be
deemed to be invalid on the ground of number of services to
be provided being not specified therein. We are satisfied
that sections 7 and 16 of the Act have validly provided that
the specification of the number of services is not and shall
be deemed to have never been an essential requirement in a
scheme prepared and published under sec. 68-C or approved or
modified under sec. 68-D. The plea of the learned counsel
therefore fails. In this, view we hold that the decision in
Shashi Kant Rai and ors. v Regional Transport Authority,
Varanasi Region, and Ors. (supra) is erroneously decided.
When the arguments of Mr. Garg on this point and the
reply thereto were heard, Mr. Shanti Bhushan, the learned
counsel for one of the appellants, submitted that he may be
permitted to raise the question of validity of sec. 68-C. He
submitted that if the amended sections 7 and 16 of the U.P.
Act have the effect of modifying sec 68-C, sec. 68-C itself
would not be valid. According to the learned counsel the
requirement of sec. 68-C is that before a scheme is prepared
and published the State Transport Undertaking must be of the
opinion that for the purpose of providing an efficient,
adequate, economical and properly coordinated road transport
services, it is necessary in the public interest that the
road transport services should be run and operated by the
State Transport Undertaking. In order to satisfy the
requirements the learned counsel submitted that the scheme
should give (1) particulars of the nature of the services
proposed to be rendered; (2) area or route proposed to be
covered and such other particulars respecting thereto as may
be prescribed. The first two requirements with which we are
concerned are under sec. 68-C. Relying on a decision of this
Court in B. H. Aswathanarayan Singh & ors. v. State of
Mysore and Ors. the learned counsel submitted that if the
requirement as to specification of the number of services to
be provided in the draft scheme is dispensed with the
particulars of the nature of services proposed to be
rendered as required in sec. 68-C would be lacking. The
learned counsel referred to page 93 of the case (supra)
wherein the Court observed that "when sec. 68-C provides for
giving particulars of the nature of the services proposed to
be rendered the intention is that such details should be
given as are necessary to enable the objectors to make their
objections. We see no difficulty in holding that the details
of the nature of services proposed to be rendered may not
only be in the form of a precise number of vehicles and
trips but also
504
in the form of minimum and minimum number of vehicles and
trips on each route." Strong reliance is placed on the
requirement that the details or the nature of services
should not only be in the form of precise number of vehicles
and trips but also in the form of minimum and maximum number
of vehicles and trips on each route. But this statement is
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explained in the next two sentences where the Court stated:
"Furnishing of minimum and maximum number of vehicles and
trips for each route would also in our opinion, satisfy the
requirement that particulars should be furnished of the
services proposed to be rendered. Further the indication of
minimum and maximum number of vehicles and trips for each
route would give the necessary information to enable the
objectors to oppose the scheme even with reference to the
adequacy of the services proposed to be rendered." We do not
think that the appellants are right in submitting that when
the word "particulars" is used in this part of the section,
it can only be satisfied if the exact number of vehicles and
trips for each route is specified and that there is no other
way of satisfying the requirement implicit in the use of the
word "particulars". It is thus clear that the exact number
of vehicles and trips for each route need not be given and
all that sec. 7 of the amended Act provides is that the
draft scheme as well as the approved scheme need not specify
the number of services. The decision relied on by the
learned counsel makes it clear that the number of vehicles
and trips for each route need not be specified. We 15 are
therefore unable to accept the contention that the failure
to specify the number of services would invalidate the draft
scheme or the approved scheme.
The learned counsel Mr. Shanti Bhushan submitted that
in any event as the maximum or minimum number of buses,
vehicles and trips have not been mentioned, the scheme
should be held to be inoperative. This contention again is
not factually substainable as the impugned scheme under sec.
68C which was notified in the U.P. Gazette on 4-12-1961 gave
the required particulars. Clause 3 of the scheme stated
"Adequate number of State Road Transport passenger services
according to traffic requirements are to be provided on the
route mentioned in clause (2) above. The provision of
Transport service otherwise than under the scheme is
prohibited." Clause 2 provided that State Road Transport
passenger services shall be provided on the inter-State
route Agra-Dholpur of Agra Region. Clause 6 provided that
the Transport Vehicles which may be used on the route
indicated in clause (2) above, shall be of country type and
their carrying capacity shall be 30 to 45 seats. Clause 7
mentions the permits which have been cancelled. A reading of
the scheme would indicate that transport vehicles and
services will be provided on the
505
routes taken over by country-type vehicles with 30 to 45
seats capacity. There is no material to show that any of the
operators or others entitled to object to the scheme raised
this objection before the scheme was approved in the year
1963. When specifically asked whether such an objection was
taken to the draft scheme the learned counsel for the
appellants were unable to say that the objection was taken.
We feel it is futile for them to raise the plea after a
lapse of about 15 years. There is no substance in any of the
contentions raised. One cannot but express amazement at the
tenacity of the operators in stalling any scheme for
nationalisation of public transport.
The appeals, special leave petitions and writ petitions
are dismissed with costs.
V.D.K. Appeals and petitions dismissed.
506