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PETITIONER: RAMNATH VERMA

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 17/04/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. AYYANGAR, N. RAJAGOPALA

CITATION:  1967 AIR  603            1963 SCR  (2) 152  CITATOR INFO :  E          1981 SC1636  (3,5)  RF         1992 SC 888  (3)

ACT: Motor   Vehicles--Objection  to  Scheme--Power  of   Officer hearing objection--Permit made ineffective for over  lapping route--If  discriminatory--Motor  Vehicles Act, 1939  (4  of 1939), ss. 68 C, 68D, 68G--Constitution of India, Art. 14.

HEADNOTE: The  Rajasthan  State Roadways, which is a  State  Transport Undertaking,  published  five schemes under s.  68C  of  the Motor  Vehicles  Act.  The State  Government  appointed  the Legal Remembrancer to hear objections filed, amongst others, by  the appellants who were plying their buses on  three  of those  five  routes.  The schemes relating  to  those  three routes   were  approved  with  slight  modifications.    The objectors  in respect of the other two schemes,  unlike  the appellants, wanted the schemes to be entirely reacted and to adduce  evidence.   The  Legal  Remembrance  relying  on   a decision  of  the High Court held that he had  no  power  to reject a scheme in its entirely or to take evidence.  One of the objectors filed a writ petition in the High Court but it was  rejected.   He came up in appeal to this  Court.   This Court overruled the decision of the Rajasthan High Court  in Chandra Bhan v. State of Rajasthan and held that it was open to the Legal Remembrancer to reject the draft scheme and  to take  evidence  if  necessary (vide Malik Ram  v.  State  of Rajasthan,  [1962] 1 S. C. R. 978).  The result was  that  a large number of writ petitions were filed in the High  Court and that court dismissed those relating to the three routes, with which the present appeals were concerned, on the ground that the appellants had neither wanted a total rejection  of the  schemes nor to adduce evidence and had,  therefore,  no concern  with the decision in Chandra Bhan’s case.   It  was not the case of appellants in the High Court, that they  had wanted  to  adduce any evidence that had been  shut  out  by legal Remembrancer nor did they indicate in this Court  what evidence they wanted to produce in support of the objections

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raised by them. Held,  that  the  appellants could not be  allowed  to  take advantage of the decision of this Court in Malik Ram’8 case. 153 It was clear that their objections could be and were offect- ively  dealt  with by the Legal Remembrancer  without  going into  evidence  and the order passed by  him  approving  the schemes  under s. 68D of the Motor Vehicles Act was  not  in any  way vitiated by his wrong approach with regard  to  the other objections. Malik  Ram  v. State of Rajasthan [1962], 1 S.  C.  R.  978, referred to. It was permissible under s. 68C of the Act to frame a scheme in  partial  exclusion of private operators and  making  the permit ineffective for the overlapping part of the route was no more than partial exclusion and was, therefore, justified under s. 68G of the Act. Although  a  permit  holder  whose  permit  was  thus   made ineffective  could  not  claim compensation  under  s.  68G, whereas one, whose permit was cancelled for the overlapping part,  could,  there could be no discrimination  within  the meaning  of  Art. 14 of the Constitution unles it  could  be shown  that the advantage to the former by being allowed  to pick up passengers on the overlapping part of the route  for destination beyond, was unequal to the compensation which he would  have  got  by having his  permit  cancelled  for  the overlapping part. Discrimination under Art. 14 is conscious discrimination and not  accidental  discrimination that arises  from  oversight Which the State is ready to rectify.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 142-146  of 1962. Appeals  from the judgment and order dated May 3,  1961,  of the  Rajasthan High Court in D. B. Civil Writs Nos. 40,  39, 45, 46 and 77 of 1961. Sarjoo Prasad, V. P. Gyagi, D. P. Gupta and H.    P. Maheshwari, for the appellants. C.   K.  Daphtary, Solicitor General of India, Kansingh,  S. R. Kapur and P. D. Menon, ’for the respondents 1962.  April 17.  The Judgment of the Court was delivered by 154 WANCHOO,  J.-These five appeals on certificates  granted  by the Rajasthan High Court raise common questions ’and will be dealt with together.  Appeals Nos. 142, 144 and 145 are with respect  to  Jaipur  Bharatpur route  appeal  No.  143  with respect to Jaipur-Shahpur-Alwar-Himkathana route, and appeal No. 146 with respect to Ajmer-Kotah route.  It appears  that the  Rajasthan  State Roadways, which is a  State  Transport Undertaking, published five schemes in pursuance of s.  68-C of the Motor Vehicles Act, No. 4 of 1939 (hereinafter called the Act).  Later, the Government of Rajasthan appointed  the Legal Remembrance to consider objections to these five draft schemes.  Objections were led by the Stage carriage  permit- holders   who  were  plying  on  these  five  routes.    The objections  with reference to the three routes  with  ’which these appeals are concerned were heard on December 7 and 14, 1961)  and  the  draft schemes were approved  by  the  Legal Remembrance  on  December  14  and  15,  1960,  with  slight modifications. It  appears further that the objectors relating  to  Jaipur- Ajmer  and  Jaipur-Kotah routes, which were among  the  five

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schemes,  published as above, objected to these two  schemes on  various grounds and prayed that they should be given  an opportunity  to  show  that the two  draft-schemes  did  Dot provide  an  efficient, adequate,  economical  and  properly coordinated  road transport service and should therefore  be not approved and also prayed that evidence might be taken in support of their contentions.  One of the permit holders  on the Jaipur Ajmer route was Malik Ram who had contended  that the  draft-scheme should be rejected in its entirety and  ad desired  to  lead  evidence for  that  purpose.   The  Legal Remembrancer,  however,  held  on the basis  of  an  earlier decision of the  155 Rajasthan  High  Court  in  Chandar Bhan  v.  The  State  of Rajasthan  (1)  that it was not open to him  to  reject  the scheme  in its entirety and he could only either approve  of it  or  modify it.  He further hold that he  could  take  no evidence while considering objections to the scheme and  all that  he  had to do was to hear arguments  on  either  side. Malik  Ram  then moved the Rajasthan High Court  by  a  writ petition which was dismissed.  He then came to this Court by special  leave  challenging  the view  taken  by  the  Legal Remembrancer  on the two points above.  This  Court  allowed Malik  Ram’s appeal and held that it was open to  the  Legal Remembrancer to reject the draft scheme or to take evidence, if  necessary,  though it was pointed out that it  would  be within the discretion of the State Government or the officer appointed  by  it to hear objections to decide  whether  the evidence intended to be produced was necessary and  relevant to  the inquiry, and if so to give a reasonable  opportunity to  the  party  desiring to lead evidence to  do  so  within reason,  and that the State Government or the  officer  con- cerned  would have all the powers of controlling the  giving and recording of evidence that any court has.  This decision was  given  on  April 14, 1961 (see Malik Ram  v.  State  of Rajasthan (1)). In the meantime large number of writ petitions were filed in the  Rajasthan High Court challenging the approved  schemes with respect to the three routes with which we are concerned in  the present appeals and also with respect to  the  three routes  with which we are concerned in the  present  appeals and  also  with  respect to the  other  two  routes.   These petitions came to be heard after the decision of this  Court in  Malik: Ram’s case(2).  So far as the petitions  relating to Jaipur Ajmer route were concerned, they were not  pressed in view of the decision of this Court quashing the scheme (1) (1961) Raj.  Law Weekly 47. (2) (1962) 1. S. C. R. 978. 156 with   respect  to  that  route  and  directing  the   Legal Remembrancer  to  hear  the  objections  over  again.   With respect  to  Ajmer-Kotah route, the High Court  allowed  the objections  on  the basis of the decision of this  Court  in Malik  Ram’s  case (1) as the objector in  those  cases  had wanted to lead evidence on the question of rejection of  the draft scheme in its entirety, and they had not been given an opportunity to do so.  But with respect to the three  routes with which the present appeals are concerned, the High Court dismissed  the writ petitions on the ground that  there  was nothing  to  indicate that the appellants  desired  to  lead evidence  in  support of their case that  the  draft-schemes should  be  totally rejected.  It was contended  before  the High  Court that it was useless for the appellants  to  make any application for the taking if evidence because it  would in any case have been rejected an the Legal Remembrancer had

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already  taken the view that be could not reject the  scheme as  a whole.  The High Court was however not impressed  with this  argument  and  held  that  the  order  of  the   Legal Remembrancer  did  not show that he thought that  the  draft scheme  should be totally rejected but felt unable to do  so because of the decision of the High Court in Chander  Bhan’s case (2).  On the other hand, the High Court was of the view that the Legal Remembrancer considered the objections raised before  him  in  detail and his order showed  that  he  only thought that the schemes should be modified in part and were otherwise fit for approval.  The appellants then applied  to the High Court for certificates which were granted; and that is how the matter has come up before us. The  main  contentions of the appellants before us  are  the same  which  they raised before the High Court.   They  urge that  they  did not get a proper hearing  before  the  Legal Remembrancer because (1) (1962) 1 S.C.R. 978. (2) (1961) Raj Law Weekly 47. 157 of  his  view  that it was not open to  him  to  reject  the schemes  in their entirety and that they were not  given  an opportunity   to  lead  evidence  to  convince   the   Legal Remembrancer  that the schemes should be rejected  in  their entirety.   It is not in dispute that the  appellants  never applied  before the Legal Remembrancer that they  wanted  to lead  evidence on any point in support of their  objections. Only  in  one writ petition (see C. A. 144 of 1962)  it  was averred  that  the  Legal Remembrancer  did  not  allow  the appellants  to lead evidence but that in our opinion is  not correct,  because  the  Legal  Remembrancer  has  filed   an affidavit  to the effect that no such oral request was  made to him by the objectors on the three routes with which these appeals  are concerned.  The High Court therefore was  right in saying that it could not be said in these cases that  the Legal  Remembrancer  had shut out evidence relating  to  the inquiry  before him which the objectors desired to  produce. But  it  is urged on behalf of the appellants  that  as  the Legal Remembrancer had already taken one view in the case of Jaipur  Ajmer  route  it was useless for  them  to  make  an application to him for leading evidence for that would  have inevitably been rejected in view of the earlier judgment  of the  Rajasthan High Court referred to above.   Even  though, this  may be so, it is remarkable that did not that  prevent the  objectors on the Jaipur-Ajmer and  Jaipur-Kotah  routes from making applications to the Legal Remembrancer that  the draft-Schemes should be totally rejected and they should  be given an opportunity to lead evidence to show this.  We fail to see why the appellants could not have been taken the same course if they really desired to lead any evidence in  order to  make out their case for total rejection of  the  schemes with  which  they  were concerned.  It  seems  to  us  clear therefore that at the stage when objections were being heard 158 by the Legal Remembrancer there was no desire on the part of the  appellants  to lead any evidence in  support  of  their objections.  Nor does it appear that when the writ petitions were  filed  in the High Court the appellants  claimed  that they  had desired to lead evidence and had been shut out  by the Legal Remembrancer.  It was only after, the decision  in Malik  Ram’s  case (1) that applications were  filed  taking advantage  of that decision and pointing out that the  wrong approach of the Legal Remembrancerin holding that it was not open  to him to reject the draft-scheme in its entirety  had resulted  in  the  appellant’s  not  getting  an   effective

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hearing.,  But it does not seem to have been suggested  even at that (except in one case) that the appellants had desired to  lead evidence before the Legal Remembrancer and  he  bad abut them out.  Nor was it shown at that stage what evidence the appellants could produce in support of their  objections if an opportunity had been given to them.  Lastly even  this Court  the appellants have not indicated what evidence  they could  produce in support of the objections raised by  them. It  seems to us therefore that the appellants  never  really desired  to produce evidence in order to establish that  the schemes  as  a whole should be rejected and  that  they  put forward  the  contention  that  they  would  have   produced evidence  if  given an opportunity to do so,  merely  taking advantage of the decision of this Court in Malik Ram’s  case (1).   Further  it  seems to us on looking  at  one  of  the objections filed before the Legal Remembrancer in C.A.  1492 of  1962  as  a  .sample  that  there  was  nothing  in  the objections which really required the giving of evidence  and which would show that there could be any desire on the  part of the objectors to lead evidence.  The objections were of a general nature and all that was desired was that "the  State Government must weigh the objections of the undersigned with reference  to  the actual conditions obtaining on  the  said route, by such method as holding public inquiry on site,  by looking into the past records of (1)  (1962) 1 S.C.R. 978. 159 service provided by the objector, by inspecting the  vehicle of  the  objector  and by comparing  the  actual  facilities provided  by  the  objector." In short,  a  perusal  of  the objections  shows that what was being contended  before  the Legal  Remembancer  was not so much that  the  draft-schemes were  not efficient, adequate, economical and  properly  co- ordinate  but  that the objectors were  providing  transport service  which was more efficient, adequate, economical  and properly  coordinated  than  the  service  proposed  to   be provided  in  the draftschemes.  That however  is  hardly  a reason  for rejecting the draft-schemes in  their  entirety. Further,  a perusal of the order of the  Legal  Remembrancer summarising the, objections which are relevant under S.  68D shows  that  the  objection were of such,  a  nature  as  to require  the productions of evidence in support of them  for the  question  of  fact raised there were  not  in  dispute. Therefore,  there could be an effective hearing  before  the Legal  Remembrancer if objectors were given a chance to  put forward  their arguments in support of the  objections  even without any evidence.  We are therefore of opinion that  the appellants cannot in the circumstances take advantage of the decision  in  Malik  Ram’s case (1), and on  the  facts  and circumstances in the present appeals there is no doubt  that they  bad  an effective hearing and the order of  the  Legal Remembrancer  approving  the  schemes  is  not  in  any  way vitiated by the wrong view taken by him that he had no power to  reject the draft,-schemes in their entirety.   It  seems that  he considered the draft-schemes on merits as  required by  ss. 68C and 68D and held that it was in accordance  with the  requirements of s. 68C.  The facts that in  some  cases the  number of buses might have. been reduced or, the  fares have  been raised or some of the, direct services has to  be cut  down where their routes overlapped with the  routes  in the three draft-schemes would not necessarily (1)  [1962] 1 S.C.R. 978. 160 lead  to the conclusion that the draft-schemes were  not  in conformity with the requirements of S. 680.  The  contention

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therefore based on the judgment of this Court in Malik Ram’s case  (1)  must  on the facts  and  circumstances  of  these appeals be rejected. Besides  this main objection, three subsidiary  points  have been raised on behalf of the appellants.  It appears that in some cases the objectors served routes which overlapped  the three  routes  which have been taken over.  In  these  cases what has been done is that in some cases the permits of  the objectors   have   been  cancelled  with  respect   to   the overlapping part  of the routes while in other  cases  the objectors  are allowed to ply even on the  overlapping  part but  they have been forbidden to pick up passengers  on  the overlapping  part  for destinations within  the  overlapping part.   This  latter  method is called  making  the  permits ineffective for the. overlapping part.  Now the grievance of those whose permits have thus been rendered ineffective  for the overlapping part in two-fold.  In the first place, it is said that this cannot be done and in the second place, it is said that even if this can be done, the result is that those whose permits have been made ineffective for the overlapping part will not be entitled to compensation under s. 68G  read with  a.  68F(2).   So  far  as  the  first  contention   is concerned, we are of     opinion  that there is no force  in it.  Under s.  68C,  it is open to frame a Scheme  in  which there is  a partial exclusion of private operators.   Making the  permits  ineffective  for  the  overlapping  part  only amounts to partial exclusion of the private operators  from, that route.  In the circumstances an order making the permit ineffective  for  the overlapping part  would  be  justified under  s. 68C.  As to the second point, there is  no.  doubt that  where the permit is made ineffective the  permitholder not be entitled to any compensation under (1)  [1962] 1 S.C.R. 978. 161 a.   68G.   It is said that this amounts  to  discrimination between  those  whose permits have been  cancelled  for  the overlapping  part and who would get compensation  and  those whose  permits  have  been made ineffective  and  who  would therefore  not get compensation.  Now we should have  though that   the  making  of  the  permit  ineffective   for   the overlapping part of the route and allowing the permit-holder to   pick  up  passengers  on  the  overlapping  route   for destinations  beyond that portion of the route would  be  to the  advantage  of the permit-holder.  In any case,  if  any permit-holder  feels that he would rather have  his  permit, cancelled for the overlapping route and get compensation  it is  for  him  to  raise  that  objection  before  the  State Government  or the officer bearing objections.  If  he  does not  do  so,  he  cannot  be heard  to  say  that  there  is discrimination   because  his  permit  has   been   rendered ineffective  and  he gets no compensation, for it  may  very well  be that he is still better off than the  person  whose permit  has been cancelled for the overlapping part  of  the route.   In any case unless facts are brought on the  record which  would show that in spite of the advantage  which  the permit  holder, whose permit has been made  ineffective  for the  over  lapping part ,of the route, gets  by  picking  up passengers on the overlapping route for destinations  beyond that  part is not equal to the compensation which  he  would get in cage his permit is cancelled for the overlapping part of  the  route, there would be no  case  for  discrimination under  Art. 14 of the Constitution.  In the present  appeals no such cage has been made out on the facts and therefore we must reject this argument based upon discrimination. Secondly, it is urged that in the case of some persons,  the

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permits  have  neither been cancelled nor  made  ineffective over   the   overlapping   route   and   this   amounts   to discrimination.  The, reply of 162 the  State  to this contention is that it was  by  oversight that  permits of certain permit-holders on  the  overlapping routes have not been cancelled or made ineffective and it is further  said  that  the State  would  have  corrected  this oversight  but for the stay order obtained from this  Court. Discrimination   envisaged  under  Art.  14   is   conscious discrimination and a discrimination arising out of oversight is  no  discrimination  at all.  In  the  present  case  the discrimination  has resulted because of an  oversight  which the State is prepared to rectify.  It is not the case of the appellants  that these few permit-holders are being  favored deliberately for ulterior reasons.  We therefore accept  the reply  of  the  State  that  a  few  permit-holders  on  the overlapping  route have been left out by oversight and  that their  permits will-be dealt with in the same manner  as  of the  appellants,  as soon as the stay order passed  by  this Court comes to an end.  There is therefore no force in  this contention also and it is hereby rejected. Lastly,  it  is urged that the permits  on  the  Ajmer-Kotah route  have been cancelled or rendered  ineffective  between Deoli  and Ajmer only aid therefore the  permit-holders  are entitled to ply between Deoli and Kotah.  It appears however that Deoli-Kotah part of the Ajmer-Kotah route is common  to Jaipur-Kotah  route  from Deoli to Kotah and  the  necessary orders  for exclusion of permit-holders have been passed  in connection  with  the Jaipur-Kotah route.  The  scheme  with respect to that route was quashed by the High Court and  the matter sent back for re-hearing the objectors in  accordance with  the decision of this Court in Malick Ram’s  case  (1). Therefore,  the question whether the permit-holders can  ply on the DeoliKotah portion of the Ajmer-Kotah route will (1)  (1962) 1 S.C.R, 978. 163 depend on the decision of the Jaipur-Kotah scheme.  If  that scheme   is  upheld,  on  re-hearing,  the  exclusion   will continue.   But if that scheme is not upheld,  the  position may  have to be reviewed in connection with this portion  of the  Ajmer-Kotah route.  In the circumstances no relief  can be  granted  to the appellants of the Ajmer-Kotah  route  at this stage. The  appeals  are hereby dismissed with  costs--one  set  of hearing costs. Appeals dismissed.