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PETITIONER: BIRAJMOHAN DAS GUPTA

       Vs.

RESPONDENT: THE STATE OF ORISSA AND OTHERS

DATE OF JUDGMENT: 28/11/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1967 AIR  158            1962 SCR  (1) 681

ACT:      Road Transport-State  Transport  Undertaking- Scheme-Approval  by   Minister-Bias  of  Minister- Validity of  scheme-Notice for  adjourned date  of hearing-If necessary-Omission of date of operation of route  in  final  scheme-Transport  Controller- Authority to  publish scheme-Orissa  Rules  framed under Ch.  IV A of Motor Vehicles Act, rr. 2 (vi), 8-Motor Vehicles  Act 1939  (4 of  1939), ss. 680, 68D (2).

HEADNOTE:      The validity  of a  scheme of  road transport service approved by the Government of Orissa under s. 68D (2) of the 682 Motor Vehicles  Act, 1939,  was challenged  by the petitioners on  the  grounds  (1)  that  a  proper notice was not given for the hearing of objections to the scheme, (2) that the Minister for Transport who approved  of the  scheme was  biased, (3) that the final scheme did not mention the date on which it was  to come  into operation,  and (4) that the Transport Controller  who published the scheme had no authority to do so. ^      Held, that;  (1) r.  8 of the Rules framed by the Orissa  State Government  under Ch. IVA of the Motor Vehicles  Act, 1939,  applied  only  to  the first date  to be  fixed for  hearing, and that if for any  reason the  hearing was adjourned, it was not necessary  to give  a fresh  notice under  the rule for the adjourned date of hearing;      (2) the  statement made  by the  minister  in answer  to  a  question  put  in  the  legislative assembly that  the Government  had decided to take over  all   the  routes   from  April   1,   1961, eliminating all  private operators,  was merely an indication of the Government’s policy and that the

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minister  could  not  be  said  to  be  personally biased;      (3) the  approved scheme  was not invalid for the reason  that the  actual date of operating the route was  not mentioned  in the  final scheme, as required under r. 3 (vi) of the Rules, inasmuch as the  notification   publishing  the  final  scheme referred to  the draft scheme which contained that date and  said that the draft scheme was approved, and, consequently,  the rule must be considered to have been substantially complied with; and      (4) the Transport Controller, being the Chief Officer of  the State  Transport Undertaking,  had the authority  to publish  the scheme under s. 68C of the  Act since  the section  provided that  the State Transport  Undertaking "shall cause it to be published" which  meant that  some officer  of the Undertaking  would   have  it   published  in  the Gazette.

JUDGMENT:      ORIGINAL JURISDICTION: Petitions Nos. 117 and 137 of 1961.      Petition under  Art 32 of the Constitution of India for enforcement of Fundamental Rights.      L. K.  Jha and R. Patnaik, for the petitioner (in Petn. No 117 of 1961).      C.  B.  Agarwala  and  R.  Patnaik,  for  the petitioner (in Petn. No. 137 of 1961).      A. V. Viswanatha Sastri, B. R. L. Iyengar and T. M. Sen, for the respondents. 683      1961. November  28. The Judgment of the Court was delivered by      WANCHOO, J.-These two petitions challenge the validity of  a scheme  of road  transport  service approved by  the Government of Orissa under s. 68D (2) of  the Motor  Vehicles Act,  No. IV  of  1939 (hereinafter called  the Act).  A large  number of grounds have  been raised  in the petitions but we are now  concerned with  only six  points urged on behalf of  the petitioners  and we shall deal with only those  points. No arguments were addressed on the other points raised in the petitions and it is therefore not  necessary to  set them out. The six points  which  have  been  raised  before  us  are these:-      1. No  hearing was given to the petitioner in petition No. 117 as required by s. 68D (2) and the Rules framed under Chap. IV-A.      2. The  minister  who  heard  the  objections under s.  68D (2)  was biased  and  therefore  the approval given to the scheme is invalid.      3.  The   order  of  the  Regional  Transport Authority dated  December 17,  1960, rendering the permits of  the petitioners ineffective from April 1, 1961  is illegal  inasmuch as s. 68 F and r. 10 framed under Chap. IV-A were violated.      4. The  State Transport  Undertaking did  not apply for  permits six weeks before April 1, 1961, as required  by s. 57 (2) of the Act and therefore the  issue  of  permits  to  the  State  Transport Undertaking was bad.

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    5. The  final scheme did not mention the date from which  it  was  to  come  into  operation  as required by  r. 3 (vi) of the Orissa Rules and was therefore bad.      6. The Transport Controller who published the scheme had no authority to do so. 684      We propose  to take  these points one by one. Re. 1.      The contention  of the petitioner is that the minister heard  the objections  on  September  21, 1960, and  passed his  orders approving the scheme on September  22, 1960.  The notice however issued to the  petitioner of  the  date  of  hearing  was received by him on September 23, 1960, and as such as there  was no opportunity for the petitioner to get a hearing before the minister and consequently the scheme  which was  approved in violation of s. 68D (2)  and r. 8 was invalid. It appears that the draft scheme  was  published  on  July  29,  1960. Objections were  invited from  the  operators  and members of  the  public  thereto.  The  petitioner filed his  objection on  August 24, 1960. The date which  was   originally  fixed   for  hearing   of objections was  September 16,  1960, and it is not disputed that the notice of that date was given to all objectors  as required  by s.  68D(2) and  the Rules. The  petitioner, however, did not appear on September 16,  1960, which  was the  first date of hearing. Many  other objectors  appeared  on  that date and prayed for time. Consequently the hearing was adjourned  to September  21.  As  however  the petitioner was  absent a  fresh notice was sent to him as  a matter  of abundant caution. That notice could not be delivered to him before September 21, 1960, as he was absent from his address and he was actually  served   on  September   23,  1960-  The petitioner’s complaint therefore is that as he was not  served  with  notice  about  the  hearing  on September 21, 1960 there was no compliance with s. 68D (2)  and the  Rules framed  in that connection under Chap. IV-A.      On these  facts, we are of opinion that there is no  force in the contention raised on behalf of the petitioner.  What r.  8 of  the  Orissa  Rules requires is  that ten days’ clear notice has to be given of  the time,  place and  date of hearing to all 685 objectors. This was undoubtedly done, for the date originally fixed  for hearing  was  September  16, 1960. Thereafter  the  hearing  was  postponed  to September 21  at the instance of the objectors. It was in  our opinion  not necessary to give a fresh notice giving  ten clear days as required by r. 8, for this  adjourned date.  Rule 8  only applies to the first date to be fixed for hearing. Thereafter if the  hearing is adjourned, it is in our opinion unnecessary to  give a  further notice  at all for the  adjourned  date.  It  was  the  duty  of  the petitioner after  he had  received notice  of  the first date  to appear  on that date. If he did not appear and  the hearing had to be adjourned on the request of the objectors, or for any other reason, to another  date, no  further notice was necessary

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of the  adjourned date. It is true that notice was given to the petitioner of the adjourned date; but that was  in our  opinion as a measure of abundant caution. The  rule does not however require that a fresh notice  must be  given of the adjourned date of hearing  also. In  the circumstances  we reject this contention. Re. 2.      Reliance is  placed on  two circumstances  to show that  the Minister  was biased  and therefore the hearing given by him was no hearing in law. In the first  place, it  is said  that in answer to a question in  the Orissa Legislative Assembly as to when the  Government was taking over the privately operated motor routes, the Transport Minister (who eventually heard  the objections) replied that the Government had decided to take over all the routes from  April   1,  1961,  eliminating  all  private operators. It  is urged  that this  shows that the Transport Minister  was biased  and was determined whatever happened  to push  through the  scheme so that it  may become  operative from April 1, 1961. We are  of opinion  that there is no force in this contention 686 of bias  based on  this reply of the Minister to a question put  in  the  Legislative  Assembly.  The Government was asked when it was intending to take over the  privately operated  motor routes and its reply was  really a  matter of policy, namely that it was  the policy  of the Government to take over all the  routes eliminating  all private operators from April  1, 1961.  This did  not mean that even if, for  example, the  scheme was  not ready or if the scheme  put forth  was found by the Government to be  open to  objection,  the  Government  would still  force   through  the  taking  over  of  the privately operated  routes from  April 1,  1961  ; This  answer  was  merely  an  indication  of  the Government’s policy,  namely, that  the Government was intending  to take  over all  private operated routes from  April 1, 1961 ; but whether in actual fact all  the routes  would be  taken over on that date  would  depend  upon  so  many  circumstances including finance.  It cannot  be said  that  this announcement of  the Government’s policy in answer to a  question put  in  the  legislative  assembly meant that  the Government was determined whatever happened  to   eliminate  all  privately  operated routes by  April 1,  1961.  We  are  therefore  of opinion that  the Minister  cannot be  said to  be personally biased  because this  policy  statement was made by him in answer to a question put in the legislative assembly.      Another reason  that is  urged to support the personal bias of the Minister is that the Minister is said  to have stated to certain persons that as the privately  operated routes  in the district of Ganjam  which   was  his   constituency  had  been nationalised he  was determined  to annihilate all the private  bus  operators  in  the  district  of Cuttack also.  This allegation  has been denied on behalf of  the State.  It is however urged that no affidavit has been filed by the Minister who alone was likely  to have  knowledge on  this point.  It

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appears however  that the petitioners also have no personal knowledge of 687 any  such   determination  on   the  part  of  the Minister. Thy based their allegation on an alleged talk between  the Minister  and  two  citizens  of Cuttack, namely,  a municipal  councillor  and  an advocate. No  affidavit however of the two persons concerned  has   been  filed   to   support   this allegation. In the circumstances we are of opinion that it was not necessary for the Minister to file an affidavit  for the  allegation on behalf of the petitioners was  also based  on heresay and it has been contradicted by similar evidence on behalf of the State.  It would  have been a different matter if the  two persons  concerned had made affidavits from personal  knowledge. There  is  therefore  no force in  this contention  and we  are of  opinion that it  cannot be  said on the facts of this case that the Minister was biased. Re. 3 and 4.      We propose  to take these points together. We are of  opinion that  the  petitioners  cannot  be allowed to  raise these  points for the first time in arguments before us, for there is no mention of these points  in their  petitions. It appears that in an  affidavit filed  ill connection  with stay, something was  said on  these two  points; but the stay matter  was never  pursued and  never came up before   this    Court   for   hearing.   In   the circumstances there  was no  reply from  the State Government to these allegations. We are of opinion that the  petitioners cannot  be allowed  to raise these points  now for  the first time in arguments when they  did not  raise them  in their petitions and consequently reject them. Re. 5.      It is  contended that  under r. 3 (vi) of the Orissa Rules,  the draft  scheme or  the  approved scheme has to be published in the official gazette under ss.  68D and  68E and has to contain certain particulars including the actual date of operating 688 the route.  Now what happened in this case is that the draft  scheme mentioned  the date of operation as April 1, 1961. This was in accordance with r. 3 (vi). When  the final  scheme was  published, this date was  not mentioned in it. We will assume that r. 3  (vi) requires that when the final scheme was published, the date should have been mentioned. It seems to  us  that  the  rule  so  read  has  been substantially complied  with, for the notification publishing the  final scheme  refers to  the draft scheme and  says that the draft scheme is approved and there  is no  mention of  any modification. In the circumstances  it could  in our opinion be not unreasonable to  read  the  date  April  1,  1961, incorporated in  the final  scheme by reference to the draft  scheme. It  would have been a different matter if  the draft  scheme also  did not contain the date of operation. We are therefore of opinion that there has been substantial compliance with r. 3 (vi),  and the final scheme cannot be said to be bad for non-compliance with the rule. We therefore reject this contention.

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Re. 6.      It is  urged  in  this  connection  that  the Transport Controller  had no  authority to publish the draft  scheme.  It  is  also  urged  that  the Transport Controller  is not  the State  Transport Undertaking and the notification under s. 68C does not show  that the State Transport Undertaking was of opinion  that it  was necessary  to  take  over certain  transport   services  for   the   purpose mentioned in  that section. The argument as raised before us  is really  two-fold. In the first place it is  urged that  the Transport Controller had no authority to  publish the scheme. There is however no force  in this  contention, for s. 68C requires that after  the State  Transport  Undertaking  has formed  the   opinion  required   thereunder   and prepared a  scheme it shall cause the scheme to be published. The Transport Controller 689 is  the  chief  officer  of  the  State  Transport Undertaking and  we see  nothing irregular  if  he publishes the  scheme prepared  under s.  68C. The section lays  down that  after the scheme has been prepared in  the manner  provided thereunder,  the State Transport  Undertaking shall  cause it to be published, which  means that  some officer  of the Undertaking will have it published in the gazette. In the  present case,  the chief  officer  of  the Undertaking has  got it  published and this in our opinion is in sufficient compliance with s. 68C.      The other  part of  the argument  is that the notification under  s. 68C  does not  show that it was the  State  Transport  Undertaking  which  was satisfied that  it was  necessary to  take  action under that  section, for  it says that "I, Colonel S.  K.   Ray,  Indian   Army  (Retd.),   Transport Controller, Orissa,  in-charge of  State Transport Undertaking, Orissa,  am of  opinion that  for the purpose of  providing an  efficient, adequate  and economical and properly coordinated road transport service it  is  necessary  ................."  The argument is  that it  was not  the State Transport Undertaking which  was satisfied  but Col.  S.  K. Ray,  Transport   Controller,   who   formed   the necessary opinion  under s. 68C. We find that this point was  also not  taken in  the petitions.  All that was  said  in  the  petitions  was  that  the Transport Controller  was only  in-charge  of  the transport services  in the  State and there was no State Transport Undertaking in the State of Orissa within the  meaning cl.  (b) of s. 68A of the Act. This case  has  been  abandoned;  but  it  is  now contended is that even though there may be a State Transport Undertaking  in Orissa  that Undertaking was not  satisfied that  it was  necessary to take action in  the manner  provided in s. 68C. This in our opinion  is a question of fact and should have been specifically pleaded in the petitions so that the State  may have  been able to make a reply. In the absence  therefore of  any  averment  on  this question 690 of  fact,   we  are  not  prepared  to  allow  the petitioners  to  raise  this  point  in  arguments before us.  In the  circumstances we  reject  this

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contention also.      The petitions  therefore fail  and are hereby dismissed with costs-one set of hearing costs.                               Petitions dismissed.