Full Judgment Text
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PETITIONER:
STANDARD MOTOR UNION PVT. LTD.
Vs.
RESPONDENT:
STATE OF KERALA & ORS.
DATE OF JUDGMENT:
30/07/1968
BENCH:
BACHAWAT, R.S.
BENCH:
BACHAWAT, R.S.
HEGDE, K.S.
CITATION:
1969 AIR 273 1969 SCR (1) 464
CITATOR INFO :
D 1972 SC1674 (12)
ACT:
Motor Vehicles Act, (4 of 1939), Ss. 68C, 68D and
68E--Scheme nationalising route overlapped by other route
operated by private operators---Scheme if of complete
exclusion or partial exclusion--Scheme modified without
expressly modifying earlier scheme--VaIidity.
Kerala Motor Vehicles (State Transport Undertaking) Rules,
1960 r. 3-
HEADNOTE:
The respondent State approved a scheme in form II for
nationalization of certain specific routes after complying
with the provisions of ss. 68C and 68D of the Motor Vehicles
Act, 1939. The scheme excluded. all private operator’s from
the notified routes. The notified routes formed part of
highways, having common road sectors and private operators
continued to operate on the highways. The appellant
unsuccessfully filed writ petition in the High Court to
quash the scheme. In appeal to this Court, the appellant
challenged the validity of the scheme on the grounds that
(i) the scheme was a complete exclusion scheme and should
have been in form I and as it was in form II it was in
contravention of Rule 3 of the Kerala Motor Vehicles(State
Transport Undertaking) Rules, 1960 read with s. 68C of the
Act; and (ii) since there were earlier schemes, they could
not be modified by the impugned scheme without complying
with the provisions of s. 68E. Dismissing the appeal, this
Court:
HELD: (i) From the language of s. 68C and r. 3 it
appears that a complete exclusion scheme in relation to. any
area of route would be a scheme which completely excludes
the existing road services of private operators on the area
or route in question. The route includes the highway over it
runs. If other existing services are allowed to continue
over a part of the highway relating to the notified route,
the scheme is not one of complete exclusion.
The impugned scheme did not exclude the road transport
services of other existing routes which overlapped many
sectors of the highways relating to the notified routes. In
spite of the scheme the public could get services on the
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common road sectors from the private operators who continued
to operate the highways. Therefore, the scheme was not in
complete exclusion of existing road transport services in
respect of notified routes and was not required to be in
form 1. [466 G-H, 467 D]
Nilkanth Prasad & Ors. v. State of Bihar. [1962] Suppl.
1 S.C.R. 728 at 737; Kondala Rao v. Andhra Pradesh S.T.C.
Corporation, A.I.R. 1961 S.C. 82, followed.
(ii) On the promulgation of the new scheme the earlier
schemes stood modified pro tanto. As the procedure laid
down in ss. 68C and 68D were followed the conditions of s.
68 were satisfied. S. 68E does not require that the new
scheme should expressly say that it cancels or modities the
earlier schemes. [467 G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 921 of
1968.
Appeal by special leave from the judgment and order
dated January 8, 1968 of the Kerala High Court in Writ
Appeal No. 79 of 1967.
465
S.V. Gupte and A.S. Nambiar, for the appellant.
Sarjoo Prasad and M.R.K. Pillai for respondent No. 1.
C.M. Kuruvilla, Sardar Bahadur, Vishnu Bhadur Saharya
Yougindra Khushalani, for respondent No. 2.
The judgment of the Court was delivered by
Bachawat, J. The appellant challenges the scheme
nationalisation of road transport services in respect of 9
routes in the districts of Ernakulam and Kottayam. Chapter
IVA the Motor Vehicles Act, 1939 deals with nationalisation
of road transport services. Section 68C provides for the
preparation and publication of a draft scheme of
nationalization of road transport services in general or any
particular class of such service in relation to any area or
route or portion thereof whether to the exclusion, complete
or partial, of other persons or otherwise. Section 68D
provides for the filing of objections of persons affected by
the scheme, for the consideration of the objections by the
government, for modification or approval of the scheme by
the government and for publication of the approved or
modified scheme. Section 68E provides that a scheme finally
settled under sec. 68D may at any time be cancelled or
modified by the State transport undertaking. The procedure
laid down in secs. 68C and 68D shaH, so far as it can be
made applicable, be followed in every case where the scheme
is proposed to be modified as. if the modification proposed
were a separate scheme. For the purpose of giving effect
to the approved scheme in respect of a notified area or a
notified route sec. 68F(2) (iii) authorises the Regional
Transport Authority to modify the terms of an existing
permit so as to curtail the area or route covered by the
permit in so far as such permit relates to the notified area
or notified route. Section 68 authorises the State
Government to make rules for the purpose of carrying into
effect the provisions of Chapter IV A and in particular to
provide the form in which any scheme or approved scheme may
be published under secs. 68C and 68D. In exercise of its
powers under sec. 68 I the State Government framed the
Kerala Motor Vehicles (State Transport Undertaking) Rules,
1960. Rule 3 provides that every proposed scheme shall be in
form I when it is in complete exclusion of existing road
transport service, in form when the scheme is in partial
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exclusion of existing road transport service, in form III
when the scheme is in supplementation of existing road
transport service and in form IV when the scheme is to
modify an existing scheme.
On December 15, 1965 the Kerala State Transport
Corporation published a draft scheme in form II for
nationalization of 9 specified routes in the districts of
Ernakulam and Kottayam in partial exclusion of the existing
passenger transport services
466
concerned, giving the particulars of the stage carriage
permits to be excluded. On October 17, 1966 after hearing
the objectors the State Government approved the scheme. On
October 24, 1966 the government published the approved
scheme. On December 7, 1966 the appellant filed a writ
petition in the Kerala High Court to quash the scheme.
V.P. Gopalan Nambiyar J. dismissed the petition. A
Divisional Bench of the High Court affirmed his order. The
present appeal has been filed after obtaining special
leave.
The appellant’s contention is that the impugned scheme
is a complete exclusion scheme and should have been in form
I and as it is in form Ii it is in contravention of Rule 3
read with sec. 68C and is therefore invalid. Let us examine
this contention. The scheme is in respect of 9 specified
routes. The scheme excludes all private operators holding
stage carriage. permits for those routes. Take the route
Kottayam-Ernakulam. All the private operators holding
stage carriage permits for that route are excluded. It is
therefore argued that the scheme is one of complete
exclusion. But it appears that there are 33 existing routes
partially overlapping the notified routes. The 33 existing
routes and the notified routes have many common road
sectors. The scheme does no.t interfere with the services
on the 33 routes. In spite of the scheme the public can
get services on the common road sectors from the operators
running on the 33 routes. Take the notified Kottayam-
Ernakulam route. There is an existing Kottayam-Muttupetty
route. A portion of the Kottayam-Muttupetty route
overlaps the: Kottayam-Ernakulam route. The impugned
scheme does not exclude the services of the operators of the
Kottayam-Muttupetty route on the road sector common to
the Kottayam-Ernakulam and Kottayam-Muttupetty routes.
On these facts, it is impossible to. say that the impugned
scheme is one of complete exclusion.
Section 68C envisages schemes of road transport services
in relation to any area or route or portion thereof whether
to the exclusion, complete, or partial of other persons or
otherwise. Rule 3 of the Kerala Motor Vehicles (State
Transport Undertaking) Rules, 1960 speaks of schemes of
road transport service in complete or partial exclusion of
existing road transport services. From the language of sec.
68C and Rule 3 it appears that a complete exclusion scheme
in relation to. any area or route would be a scheme which
completely excludes the existing road services of private
operators on the, area or route in question. The route
includes the highway over which it runs. If other existing
services are allowed to continue over a part of the highway
relating to the notified route the scheme. is not one
of complete exclusion.
467
A stage carriage permit is granted under secs. 46 to 48
for a specified area. The words "roads included in the
proposed route or area" in sec. 47( 1 )(f) implies that a
route includes the road or the physical track. Section
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68F(2)(iii) implies that a portion of the route of an
existing permit may relate to a notified route. This
happens when the two routes have a common road sector
Section 68F (2)(iii) authorises the exclusion of the common
portion of the road from the existing permit for giving
effect to. the scheme for the notified route. For the
purposes of Chapters. IV and IVA there is no practical
distinction between the route or the notional line from one
terminus to another for which the permit is granted and the
road over which the transport services are run and operated.
As pointed out in Nilkanth Prasad & Ors. v. State of
Bihar(1) "the distinction between "route" as the notional
line and "road" as the physical track disappears in the
working of Chap. IVA." The route is also an area. (see
Kondala Rao v. Andhra Pradesh S.T.C. Corporation(2) & C.P.C.
Motor Service v. State of Mysore(3). The impugned scheme
does not exclude the road transport services of the 33
existing routes over many sections of the highways
relating to the notified routes. It follows that the scheme
is not in complete exclusion of existing road transport
services in respect of the notified routes and is not
required to be in form I. There is no infirmity in the
scheme because it was in form II.
The impugned scheme is in partial exclusion of
operators from Kottayam-Ernakulam and Kottayam-Eratupettah
routes and 7 other routes. It is common case that there
were earlier schemes relating to the Kottayam-Ernakulam and
Kottayam-Eratupettah routes. In so far as the impugned
schemes excludes private operators from those routes, it
has the effect of modifying the earlier schemes. The
appellant’s contention is that the impugned scheme is
invalid as the modification of the earlier schemes were made
without complying with the provisions of sec. 68E. In our
opinion, this contention is baseless. The new scheme has
been proposed and approved after following the procedure
laid down in secs. 68C and 68D. In so far as the new scheme
modities the earlier schemes, the modifications could be
made under sec. 68E. As the procedure laid down in sees.
68C and 68D were followed the conditions of sec. 68E were
satisfied. 68E does not require that the new scheme should
expressly say that it cancels or modifies the earlier
schemes. On the promulgation of the new scheme the earlier
schemes stand modified by implication pro tanto.
A scheme to modify an existing scheme simpliciter is
required by Rule 3 of the Kerala Motor Vehicles (State
Transport Under-
(1) [1962] Suppl. 1 S.C.R. 728 at 737.
(2) A.I.R. 1961 S.C. 82 at 93.
(3) [1962] Supp. I.S.C.R. 717; A.I.R. 1966 S.C. 1661.
468
taking) Rules, 1960 to be in Form IV. The impugned scheme
was in Form H as it was in partial exclusion of the existing
road transport service. Such a scheme could not be in
form IV. The partial exclusion scheme was rightly proposed
in form Ii and when approved it had the effect of modifying
the earlier schemes.
Counsel suggested that the approval of the scheme by
the State Government on October 17, 1966 was defective as
the Government was merely of the opinion that the proposed
scheme was necessary to provide efficient, adequate and co-
ordinated road transport services and it did not form the
opinion that the scheme was necessary to provide economical
road transport service. The point was not taken in the
courts below and we therefore indicated in the course. of
the arguments that the appellant will not be permitted to
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raise. this point at this late stage. Several other
objections were taken in the courts below but they are not
pressed in this Court.
The appeal is dismissed with costs.
Y.P. Appeal dismissed.
469