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PETITIONER: SARASWATI DEVI & ORS.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT04/11/1980

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. KRISHNAIYER, V.R. FAZALALI, SYED MURTAZA

CITATION:  1981 AIR  660            1981 SCR  (1)1005  1980 SCC  (4) 738

ACT:      Motor Vehicles  Act, 1959,  sections 68C and 68D, scope of-objections involving  comparison of the pre-existing road transport services  with those  prepared  in  a  scheme  are relatable  to  the  ingredients  of  section  68C  and  are, therefore admissible under section 68D of the Act.      Uttar Pradesh  State Transport  Services  (Development) Rules, 1958,  rules 5(v) and 7(2)(iv), scope of-Summoning of witnesses and production of witnesses, explained.

HEADNOTE:      Dismissing the appeal by special leave, the Court ^      HELD: (1)  A bare  reading of sections 68A to contained in Chapter  IV-A, which  was added to the Act by Central Act 100  of   1956,  makes   it  clear  that  they  provide  for nationalisation of  road transport  services. However,  such nationalisation, in  view of  the provisions of section 68C, is  not   nationalisation  for  nationalisation’s  sake  but nationalisation with  a view  to the  achievement of certain specified objects.  Unless a  scheme  conforms  to  the  two conditions referred  to in  section  68C,  namely,  (a)  the S.T.U. is  competent to  prepare and  publish a scheme under section 68C  only after it has formed the opinion that it is necessary  in   the  public  interest  that  road  transport services covered by the scheme should be run and operated by itself, whether  to the  exclusion, complete  or partial, of other persons  or otherwise;  and (b)  the necessity for the road transport services to be run and operated by the S.T.U. must flow, in its opinion, from the purpose of providing ar. efficient, adequate,  economical  and  properly  coordinated road transport  service, it  will fall  outside the ambit of section 68C. [1012A, 1013H, 1014A-C]      Section  68D   gives  the  right  to  certain  persons, associations and  authorities to file objections to a scheme published under  section 68C  within the specified period of thirty days  of its  publication  and  also  lays  down  the procedure for the hearing and disposal of such objections by the State  Government. The procedure provided in section 68D

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is designed  to -  (a) enable parties affected by the scheme to point  out flaws therein; (b) enable the State Government to find  out which  flaws, if  any, the scheme suffers from, and (c)  enable the  State Government  either to  remedy the flaws by a suitable modification of the scheme or to rescind the scheme  altogether. Under  section 68(2), every objector or his representatives and the representatives of the S.T.U. have to be given an opportunity of being heard in the matter and it  is only  thereafter that the State Government has to exercise its  power to  approve or  modify the scheme, which power includes  the power  not to  approve the scheme at all and to drop it in its entirety. [1014D-F]      Malik Ram v. State of Rajasthan, [1962] 1 S.C.R. 978 at 981, followed. 1006      Section 68D  does not  specify the  type of  objections envisaged by  it but  then their  purpose being to point out flaws in  the scheme  they must  be confined  to the matters covered by  section 68C. If the opinion forming the basis of the scheme does not suffer from errors such as may render it abnoxious to  the dictates  of section  68C and on the other hand, conforms  to the conditions laid down in that section, the scheme  would be unobjectionable. Objections may thus be made to  show: (a)  that it  is not  necessary in the public interest for  the concerned  road transport  services to  be operated by  the S.T.U.; (b) that it is not necessary in the public interest  that such  services be  taken over  by  the S.T.U. to  the complete  exclusion  (if  such  exclusion  is envisaged by  the scheme)  of other  persons and  that their partial  exclusion   would  suffice;  (c)  that  it  is  not necessary in the public interest that such services shall be taken over  by the  S.T.U. even  to the partial exclusion of others; (d)  that the scheme is not calculated to provide an efficient road  transport service; (e) that the scheme would not provide an adequate road transport service; (f) that the road transport  service envisaged by the scheme would not be economical; or  (g) that the road transport service provided for  by   the  scheme  would  suffer  from  lack  of  proper coordination. [1014H, 1015A-E]      Objections falling outside these seven categories would not be  admissible inasmuch  as they would not have anything to do with any of the conditions which a scheme must satisfy in order to be covered by section 68C. [1015E-F]      2. In  order to  find out  if the  scheme  fulfils  the requirements of  section 68C  a comparison of the attributes of the  two services,  such as  quality, capacity, financial implications and  coordination would  certainly fall  within the scope  of the  inquiry to  be  conducted  by  the  State Government, although  a comparison  would not be permissible for the  sole purpose  of finding  out whether  the  private operators should  be  given  a  preference  over  the  State Transport Undertaking.  If such  a comparison  as held to be permissible is  ruled out,  the result  would be to shut out from the  enquiry held by the State Government under section 68D most  of the  material relevant for determination of the validity of  the scheme  - a  result contemplated neither by section 68D  nor by  the decision  of this Court in [1967] 3 S.C.R. 329. [1018A-C]      Objections calculated  to show  that a  scheme does not provide a  road transport  service which  can be  considered efficient,  adequate.  economical  o}  properly  coordinated would  certainly   lie;  and   the  adjectives  "efficient", "adequate", "economical"  and "properly  coordinated are not absolute but more or less comparative terms. [1017E-F1].      Capital Multi-Purpose  Co-operative Society, Bhopal and

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others v.  The State  of Madhya Pradesh and others, [1967] 3 S.C.R. 329, explained.      3. Objections  of a  "personal" nature  may be  of  two types. (i)  those challenging  the scheme on the ground that it harms an existing operator and, (ii) those which indicate the details of the services afforded by an existing operator for the  purpose of  showing that  service envisaged  by the scheme would  in comparison not be efficient, adequate, etc. Objections of  the second  type would  be admissible,  while those of  the first  type, would be wholly irrelevant to the determination of  the validity  of the scheme in view of the postulates  of   section  68C   and  would,   therefore,  be inadmissible. [1018E-G]      Gullapalli Nageswara  Rao and  others v. Andhra Pradesh State Road  Transport Corporation and Another, [1959] Suppl. 1 S.C.R. 319, distinguished. 1007 4. It  is true  that the  State Government was acting in the discharge of  its  quasi-judicial  functions  and  it  could devise  its   own  procedure  (in  the  absence  of  express provisions to  the contrary)  so that its functions could be effectively discharged.  Further, when the statute gives the power to  the State  Government to afford to the objectors a reasonable opportunity  of being heard and to take evidence, oral as well as documentary, in support of their objections, the power  to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and  needs no  statutory  sanction,  although  the power to  enforce their attendance or compel them to produce documents is  lacking on  account of  absence of  conferment thereof by a statute. [1021D-F]      Nehru Motor  Transport Co-operative  Society Limited v. The State of Rajasthan, [1964] 1 S.C.R. 220, followed.      5. Sub-rule  (5) of  rule  5  of  Uttar  Pradesh  State Transport  Services   (Development)  Rules,  1958  serves  a salutary purpose  and, that is, that the inquiring authority may shut  out all  evidence which is sought to be brought on the record  but which  is  either  irrelevant  or  otherwise inadmissible. [1022G-H, 1023A]      6. In  the instant case, no right of the appellants can be  said   to  be  infringed  when  their  applications  for summoning  witnesses   and  production   of  documents  were rejected by  the State  Government and  the rejection is not illegal. [1022E-F]      Capital Multi-Purpose  Co-operative Society, Bhopal and Others v.  The State  of Madhya Pradesh and Others, [1967] 3 S.C.R. 329; applied.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1755 of 1980.      Appeal by  Special Leave  from the  Judgment and  order dated 8-8-1980  of the  Allahabad High  Court in Civil Misc. Writ Petition  No. 4376/69.      S.N. Kackar,  R.B. Mehrotra  and Pramod  Swarup for the Appellants.      O. P.  Rana and  Mrs. Shobha Dikshit for Respondent No. 1.      Yogeshwar Prasad,  Mrs. Rani  Chhabra, P.K.  Pillai and R.N. Trivedi for Respondent No. 2.      The Judgment of the Court was delivered by      KOSHAL, J.-This  appeal by  special leave  is  directed against a  judgement dated the 8th August 1980 of a Division

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Bench of  the Allahabad  High Court  dismissing  a  petition instituted by  the 18  appellants under  article 226  of the Constitution of India in which the reliefs prayed for were-      (a)  that  the   order  dated   the  19th   July,  1969           (hereinafter referred  to as  the impugned  order)           passed  by   the  Deputy   Secretary   (Judicial),           Government of Uttar Pradesh, 1008           rejecting  all   the  objections   filed  by   the           appellants to  a scheme  (hereinafter  called  the           impugned scheme)  published on  the  21st  January           1961 in  the Government  Gazette of  Uttar Pradesh           under section  68C of  the Motor Vehicles Act 1939           (for brevity,  the Act)  be set  aside as illegal.           and      (b)   that  the  notification  published  in  the  said           Gazette dated the 7th November, 1970 and approving           the  impugned   scheme  (for   short,   the   1970           notification) be quashed.      2.  The   notification  dated  the  21st  January  1961 declared that  the State  Government was of the 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 on  the routes  mentioned at  item  No.  2  of  the annexed schemes  should be  run and  operated by  the  State transport undertaking  to the  complete exclusion  of  other persons" and the impugned scheme was being published on that account under  section 68C of the Act read with rule 4(1) of the Uttar  Pradesh State  Transport  Services  (Development) Rules, 1958  (for short,  the rules).  The  impugned  scheme envisaged the plying of buses on the route Gorakhpur-Khajni- Gola via  Dhuriapur and  Malhanpur exclusively  by the State transport undertaking  (hereinafter described as the S.T.U.) and invited all persons whose interest was affected by it to file objections thereto within 30 days of its publication in the Official Gazette.      The impugned  scheme was later on modified by different notifications and  three allied  routes were  brought within its purview.  Supplementary  objections  to  the  scheme  as amended were put forward by persons interested.      Shri S.K.  Bhargava, Deputy Secretary (Judicial) to the U.P. Government rejected all the objections and approved the scheme through the impugned order, in pursuance of which The 1970 notification was published in the Government Gazette.      3.  On  behalf  of  the  18  appellants  (out  of  whom appellants Nos.  1 to  17 are  transport operators  who were plying their  buses on  the routes  covered by  the impugned scheme  while  appellant  No.  18  is  the  Motor  operators Association,  Gorakhpur)  the  following  grounds  were  put forward before  the High  Court in  support of  the  prayers made:      (i)  The impugned  scheme was  vitiated by  mala  fides           inasmuch as  it was the outcome of action taken by           Shri  Hanumant   Singh  Negi,   Deputy   Transport           Commissioner, U.P., who had 1009           threatened Shri  Bajrangi Lal, Pairokar for one of           the petitioners,  namely, Shri Kashi Prasad Gupta,           that the  disputed route  would be nationalised in           case the  latter pursued  in the Supreme Court the           matter which  had earlier been decided against him           by the High Court.      (ii) The  impugned order  did  not  deal  at  all  with           objections of  a personal  nature which  had  been

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         filed by  the appellants  and which,  inter  alia,           indicated that  the scheme  would operate  to  the           great disadvantage  of the  appellants all of whom           were plying  buses on  the disputed  route and had           invested huge sums of money for that purpose.       (iii) The  impugned  order  did  not  record  specific           findings on  any of  the objections of a "personal           nature" and  was liable  to be  quashed  for  that           reason alone.      (iv) It  was incumbent  on the  author of  the impugned           order to  compare the  services  rendered  by  the           appellants with those to be rendered by the S.T.U.           That not  having been done, the impugned order and           the 1970 notification were both vitiated.      4. The  High Court  went at length into the question of mala fides  and rejected the contention of the appellants in that behalf  mainly on  the ground  that  it  was  not  Shri Hanumant Singh Negi who had initiated the nationalisation of the disputed  route but  that it  was the  State  Government under whose decision the impugned scheme was formulated.      In support  of ground  (ii) reliance  on behalf  of the appellants was  placed  before  the  High  Court  mainly  on Gullapalli Nageswara  Rao and Others v. Andhra Pradesh State Road Transport Corporation and Another, which was decided by a Bench  of five  Judges of this Court. The crucial question before the  Court in  that case  was whether  the  authority deciding the  objections under  section 680  of the  Act was bound to act judicially. Subba Rao, J. (as he then was), who answered the  question in  the affirmative  on behalf of the majority consisting  of himself, Das, C.J., and Bhagwati, ., dealt at  length with the provisions of sections 68C and 68D of the  act and while concluding that the matter partook the character of a dispute between two parties, observed:      "The citizen may object to the scheme on public grounds      or on personal grounds. He may oppose the scheme on the      ground that  it is not in the interest of the public or      on the  ground that  the route  which he  is exploiting      should be excluded from 1010      the scheme  for various reasons. There is, therefore, a      proposal and  an opposition  and the  third party,  the      State Government  is to decide that lis and prima facie      it must  do so  judicially. The  position is put beyond      any doubt  by the  provisions in  the Act and the Rules      which expressly  require that the State Government must      decide  the   dispute  according   to   the   procedure      prescribed by  the Act and the Rules framed thereunder,      viz.,  after   considering  the  objections  and  after      hearing both  the parties.  It therefore  appears to us      that this  is an  obvious case  where the Act imposes a      duty  on   the  Stale  Government  to  decide  the  act      judicially  in   approving  or   modifying  the  scheme      proposed by  the  transport  undertaking..  The  scheme      propounded may  exclude persons  from a route or routes      and the  affected party  is given  a remedy to apply to      the Government and the Government is enjoined to decide      the dispute between the contesting parties. The statute      clearly, therefore,  imposes a duty upon the Government      to act  judicially.  Even  if  the  grounds  of  attack      against the  scheme are  confined only  to the purposes      mentioned  in   s.  68C-we   cannot  agree   with  this      contention-the position  will not  be  different,  for,      even in  that case there is a dispute between the State      transport  undertaking   and  the  person  excluded  in      respect  of  the  scheme,  though  the  objections  are

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    limited to  the purposes  of the scheme. In either view      the said  two provisions,  sections 68C and 68D, comply      with the  three criteria of a judicial act laid down by      this Court."      (emphasis supplied)      Emphasis before  The High  Court was laid on the under- lined portions of the above observations. On the other hand, attention of  the Court was invited to Capital Multi-Purpose Co-operative Society  Bhopal and Others v. The State of M.P.  & Others. on behalf  of the  State for the proposition that the objections  to the  impugned scheme had to be related to the four purposes indicated in section 68C of the Act. After giving consideration to the matter the High Court held:      "There can  be no  quarrel with the proposition that an      objection of  a personal  nature can  be filed  but  it      should be  for the  purposes of  showing that  the four      purposes indicated  in section  68C cannot be achieved.      In other  words  objections  of  the  nature  that  the      petitioners will  suffer hardship  and  there  will  be      financial  loss   to  the   petitioner  or   that   the      petitioners have 1011      invested large  amount cannot  per se  be sufficient to      nullify a scheme of the nature referred to above unless      they have  a material bearing on the purposes indicated      in section  68C of the Act. When a scheme is framed for      nationalisation of  a route,  whether wholly or partly,      the necessary  consequence will be that the persons who      have invested  their money  in purchasing vehicles will      be displaced  and that  there will  be  loss  in  their      earnings. If  this  could  have  been  the  ground  for      rejecting or  modifying a  scheme, no  scheme could  be      taken up.  A bare perusal of section 68C indicates that      the purpose  of the  scheme is to provide an efficient,      adequate,  economical  and  properly  coordinated  road      transport  service   which  is   necessary  in   public      interest, and  such a  scheme  will  be  liable  to  be      approved  under   the  provisions   of  the   Act.  The      objections of  personal nature  in the  instant case in      our opinion  fail to  establish that  the four purposes      which are  sought to be achieved by the scheme will not      be achieved  and for  that  reason  the  scheme  should      either be rejected or modified."      Ground (iii)  was repelled  by the  High Court  with  a remark that  even if  objections of  a personal  nature were covered by  section 68C the impugned order was not liable to be quashed  merely on  the ground  that its  author did  not record specific  findings thereon. Support for this view was sought from a Full Bench decision of the same Court reported as Khuda Dad Khan v. State of U.P. and others      The last  ground of  attack against  the impugned order and the  1970 notification also did not find favour with the High Court as, according to it, in Capital Multi-Purpose Co- operative Society  Bhopal and  others v. The State of M.P. & others (supra), the Supreme Court had taken the view that it was not necessary for the concerned authority to compare the services rendered  by the private operators with those to be expected from the S.T.U.      It was in these premises that the High Court passed the judgment under appeal.      5. Out of the grounds put forward before the High Court on behalf  of the  appellants, two,  namely, those listed at serial Nos. (i) and (ii) above were not pressed before us by their learned  counsel, Shri  S. N.  Kacker,  who,  however, argued the point covered by ground (iv) with great force and

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also challenged  the finding  recorded by  the High Court in relation to ground (iii). In order to determine 1012 the questions  raised before  us and  canvassed  by  learned counsel for  the parties  it is  necessary to  undertake  an analytical study of sections 68A to 68E contained in Chapter IVA which  was added  to the Act by Central Act 100 of 1956. Section 68A contains two definitions According to it-           "(a) ’road  transport service’  means a service of      motor vehicles  carrying passengers or goods or both by      road for hire or reward;           "(b)  ’State   transport  undertaking’  means  any      undertaking providing  road  transport  service,  where      such undertaking is carried on by,-           (i)  the Central Government or a State Government;           (ii) any Road  Transport  Corporation  established                under  section   3  of   the  Road  Transport                Corporations Act, 1950;            (iii) any  municipality  or  any  corporation  or                company owned  or controlled  by the  Central                Government or  one or more State Governments,                or by  the Central Government and one or more                State Governments."      Section 68B  gives over-riding effect to the provisions of Chapter  IVA.  Contents  of  sections  68C  and  68D  are reproduced below:           "68C. 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  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 under taking may 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,  and  shall      cause every such scheme to be published in the Official      Gazette and  also in  such other  manner as  the  State      Government may direct."           "68D. (1)  on the publication of any scheme in the      Official Gazette  and in not less than one newspaper in      regional language  circulating in  the  area  or  route      which is proposed to be covered by such scheme- 1013           (i)  any  person   already   providing   transport                facilities by  any means  along or  near  the                area or  route proposed  to be covered by the                scheme;           (ii)   any    association   representing   persons                interested in the provision of road transport                facilities recognised  in this  behalf by the                State Government; and              (iii)  any local  authority or police authority                within whose  jurisdiction any  part  of  the                area or  route proposed  to be covered by the                scheme lies,      may,  within   thirty  days   from  the   date  of  its      publication in the official Gazette, file objections to      it before the State Government.           "(2) The  State Government  may, after considering      the objections  and after  giving an opportunity to the

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    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.           "(3) The scheme as approved or modified under sub-      section (2)  shall then  be published  in the  official      Gazette by  the State  Government and  the  same  shall      thereupon become final and shall be called the approved      scheme and  the area or route to which it relates shall      be called the notified area or notified route:      "Provided that  no such  scheme which  relates  to  any      inter-State route  shall be  deemed to  be an  approved      scheme unless  it has  been published  in the  official      Gazette with  the  previous  approval  of  the  Central      Government."      Sub-section (1)  of section  68E gives  to  the  S.T.U. power to  cancel or  modify at any time any scheme published under sub-section  (3) of section 68D and provides that "the procedure laid down in section 68C and section 68D shall, so far as  it can be made applicable, be followed in every case where the  scheme is proposed to be cancelled or modified as if the  proposal were a separate scheme." Sub-section (2) of section 68E  confers on  the Stale  Government the  power to modify a  scheme published  under sub-section (3) of section 68D after  giving the  S.T.U. and any other person likely to be affected  by the  proposed modification an opportunity of being heard in respect thereof.      6. A  bare reading of the sections noted above makes it clear  that   they  provide   for  nationalisation  of  road transport services.  However, such  nationalisation, in view of the provisions of section 68C, 1014 is  not   nationalisation  or   nationalisation’s  sake  but nationalisation with  a view  to the  achievement of certain specified objects.  A break up of the section brings out the following essential features.      (a)  The S.T.U.  is competent  to prepare and publish a           scheme under  section 68C only after it has formed           the opinion  that it  is necessary  in the  public           interest that  road transport  services covered by           the scheme  should be  run and operated by itself,           whether to  the exclusion, complete or partial, of           other persons or otherwise.      (b)   The necessity  for the road transport services to           be run  and operated  by the  S.T.U. must flow, in           its opinion,  from the  purpose  of  providing  an           efficient,  adequate,   economical  and   properly           coordinated road transport service.      Unless a  scheme conforms  to these  two conditions  it will fall outside the ambit of section 68C.      Section  68D   gives  the  right  to  certain  persons, associations and  authorities to file objections to a scheme published under  section 68C  within the specified period of 30 days  of its publication and also lays down the procedure for the hearing and disposal of such objections by the State Government. An  important feature  of sub section (2) of the section is  that (every  objector or his representatives and the representatives  of the  S.T.U.  have  to  be  given  an opportunity of  being heard  in the  matter and  it is  only thereafter that  the State  Government has  to exercise  its power to  approve or modify the scheme, which power includes the power not to approve the scheme at all and to drop it in its entirety),  as held  in Malik  Ram v  State Of Rajasthan [1952] 1 S.C.R. 978 (981).      The procedure  provided in section 68D is thus designed

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to-      (a)  enable parties  affected by  the scheme,  to point           out flaws therein,      (b)   enable the  State Government  to find  out  which           flaws, if any, the scheme suffers from, and      (c)   enable the  State Government either to remedy the           flaws by  a suitable modification of the scheme or           to rescind the scheme altogether.      7. This  brings us  to the main point of controversy in the case,  that is,  the nature  of objections which parties affected by  a scheme may prefer to it. Section 68D does not specify the type of objections 1015 envisaged by  it but  Then their  purpose being to point out flaws in  the scheme  they must  be confined  to the matters covered by  section 68C. In the opinion forming the basis of the scheme does not suffer from errors such as may render it obnoxious to  the dictates  of section  68C and on the other hand, conforms  to the conditions laid down in that section, the scheme  would be unobjectionable. Objections may thus be made to show :-      (a)  that it  is not  necessary in  the public interest           for the  concerned road  transport services  to be           operated by the S.T.U.;      (b)   that it  is not  necessary in the public interest           that such  services be taken over by the S.T.U. to           the  complete  exclusion  (if  such  exclusion  is           envisaged by the scheme) of other persons and that           their partial exclusion would suffice;      (c)   that it  is not  necessary in the public interest           that such  ser vices  shall be  taken over  by the           S.T.U. even to the partial exclusion of others;      (d)   that the  scheme is  not calculated to provide an           efficient road transport service;      (e)  that the scheme would not provide an adequate road           transport service;      (f)   that the  road transport service envisaged by the           scheme would not be economical, or      (g)   that the  road transport  service provided for by           the  scheme  would  suffer  from  lack  of  proper           coordination.      Objections falling  outside the  seven categories above set out  would not  be admissible inasmuch as they would not have anything  to do  with any  of the  conditions  which  a scheme must  satisfy in  order to be covered by section 68C. To this  conclusion there  is no challenge from either side, but then  it has  been vehemently contended on behalf of the appellants that  a comparison of the road transport services operating on  the route  covered  by  a  scheme  with  those envisaged by  the scheme itself may be necessary in order to find out if the scheme conforms to the provisions of section 68C and  this contention  is controverted by learned counsel for the respondents on the strength of Capital Multi-Purpose Co-operative Society  Bhopal and Others v. The State of M.P.  & Others, wherein Wanchoo, J., speaking for a Bench of this Court which  consisted of  himself, Bachawat  and Ramaswami, JJ., observed: 1016           "We are  further  of  opinion  that  there  is  no      question of  consideration of comparative merits of the      State Transport  Undertaking and  the private operators      in the context of Chapter IV-A. As we have said already      Chapter IV-A  was enacted  for nationalisation  of road      transport services  in accordance  with  the  amendment      made  in   article  19(6)   of  the  Constitution.  The

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    nationalised road transport under that Chapter can only      be run by the State Transport Undertaking as defined in      section 68-A(b)  of the  Act. In  view of that fact, if      nationalisation  has   to  come  as  envisaged  by  the      amendment of  the Constitution, the only body which can      run the  nationalised service  is the  State  Transport      Undertaking, and  in those circumstances we fail to see      any necessity  for comparison between a State Transport      Undertaking on the one hand and individual operators on      the other.           "Apart from  this general  consideration,  we  are      further of  opinion  that  ordinarily  no  question  of      comparative merits based on past record between a State      Transport  Undertaking  and  individual  operators  can      arise.  Section   68-C  provides  the  State  Transport      Undertaking  has   to  run   an  efficient,   adequate,      economical  and  properly  coordinated  road  transport      service, and  for doing  that it  does not take up just      one route and put one transport vehicle on it. It takes      up a  large number of routes and puts a large number of      transport  vehicles   on  them   in  order  to  run  an      integrated service whether for passengers or for goods,      or for  both. In these circumstances it is difficult to      see how  one  can  compare  such  an  undertaking  with      individual  private   operators  who  are  running  one      transport vehicle or so on individual routes. Secondly,      it would be unusual for the State Transport Undertaking      to be  running transport  vehicles on individual routes      before it  produces a scheme for nationalisation of the      type provided  for in  Chapter IV-A,  though it  may be      conceded that  this may  not be  quite impossible,  for      some State  transport undertaking  might  have  entered      into competition  with private operators and might have      obtained permits  under Chapter  V; (see  for  instance      Parbani Transport  Co-operative  Society  Ltd.  v.  The      Regional Transport  Authority, [1960]  3  S.C.R.  177).      Even so,  when the  State transport  undertaking  takes      action under  Chapter IV-A  of the Act there can in our      opinion be  no question  of comparison  between a State      transport undertaking running an integrated service and      individual operators  running one  transport vehicle or      more on  individual routes. We are therefore of opinion      that 1017      the authority  cannot be said to have gone wrong in not      asking for  past records  of  the  Corporation  in  the      present case  for purposes  of such  comparison. It  is      true that section’ 68-C requires that the scheme should      be in  public interest.  But unless the scheme is shown      not to  be efficient, adequate, economical and properly      coordinated, it  will in  our opinion  generally follow      that it  is in  the public  interest. We  do not  think      therefore  that   the   comparative   merits   of   the      Corporation as  against individual operators require to      be judged under Chapter IV-A in the public interest." A careful  study of  these observations would show that they were  meant  to  exclude  from  consideration  a  comparison between the  S.T.U. and private operators for the purpose of finding out  which of  them should be preferred on the basis of their  past performance  and not  to declare irrelevant a comparison between  the service  envisaged by the scheme and pre-existing services for the purpose of determining whether the scheme as framed provides for the operation of a service which would  be efficient, adequate, economical and properly coordinated. Normally,  as pointed  out by  Wanchoo,  J.,  a

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S.T.U. takes  up a  large number  of routes and puts a large number of  vehicles on  them in  order to  run an integrated service while  private operators  cater to individual routes and may  not, therefore, be in a position to provide what is described  in   section  68C   as  "a  properly  coordinated service". That  does not  mean, however,  that. all schemes, howsoever framed, would in the very nature of things provide for services  which conform  to the quality insisted upon by section 68C.  As stated above, objections calculated to show that a  scheme does  not provide  a road  transport  service which can  be considered  efficient, adequate, economical or properly coordinated would certainly lie; and the adjectives "efficient",   "adequate",    "economical"   and   "properly coordinated" are  not absolute  but more or less comparative terms. A  service consisting  of only one round trip per day may be  adequate if  the traffic  on the  concerned route is lean. On  the other  hand, a  hundred round trips may not be adequate for  a route  burdened with  heavy  traffic.  If  a private operator  is running  10 buses  either  way  and  is sought to  be replaced  by the  S.T.U. under  a scheme which makes provision  only for  five  round  trips  per  day  the proposed  road   transport  service   cannot  be  considered adequate if the number of round trips required to fully cope with the  traffic is  more  than  five.  Efficiency  of  the service covered  by  a  scheme  may  similarly  have  to  be determined in  comparison to that which pertains to the pre- existing services.  Economics and proper coordination of the service proposed in a scheme may again be 1018 matters  for   which  a  comparison  with  the  pre-existing services is  called for. In order to find out, therefore, if the  scheme  fulfils  the  requirements  of  section  68C  a comparison of  the attributes  of the  two services, such as quality, capacity,  financial implications  and coordination would certainly  fall within  the scope of the inquiry to be conducted by  the State  Government, although  a comparison, would not be permissible for the sole purpose of finding out whether the  private operators  should be given a preference over the  S.T.U. If  such a comparison as we have held to be permissible is  ruled out,  the result  would be to shut out from the  enquiry held by the State Government under section 68D most  of the  material relevant for determination of the validity of  the scheme-a  result  contemplated  neither  by section 68D  nor by  Wanchoo, J.,  in the observations above quoted, which,  on the  other hand,  make it  clear that the proposed scheme  may certainly  be shown (in whatever way it is possible)  not to  fulfil  the  criteria  of  efficiency, adequacy, economy  and proper  coordination. The  comparison ruled out  by him  was not  between the  merits of the rival services but  between the  expectations from their operators in view  of their  respective past  records including  these relating to  other areas  and routes.  The High  Court  thus erred in  arriving at the conclusion that The Capital Multi- Purpose case eschewed all comparison and its finding in that behalf, in  so  far  as  it  runs  counter  to  the  opinion expressed by us above, is set aside.      8.  We   may  in  passing  refer  to  what  are  called objections of  a "personal"  nature. These  may  be  of  two types: (1)  those challenging  the scheme on the ground that it harms  an existing operator and, (2) those which indicate the details of the services afforded by an existing operator for the purpose of showing that the service envisaged by the scheme would  in comparison not be efficient, adequate, etc. Objections of  the  second  type,  as  we  have  just  above concluded, would be admissible for the reasons stated. Those

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of the  first type,  however, would  be wholly irrelevant to the determination  of the  validity of the scheme in view of the postulates  of section  68C  and  would,  therefore,  be inadmissible. This  proposition may appear at first sight to run counter  to those  observations of  Subba  Rao,  J.,  in Gullappalli’s case (supra) which we have extracted above but this is  not really  so. Those observations were made in the course of  consideration by  this Court of the sole question whether the  State Government,  in deciding objections under section 68D, acted judicially or purely in an administrative capacity. The  answer to  that question,  according to Subba Rao, J.,  depended on  whether the  matter before  the State Government amounted to a lis; and it 1019 was in  that connection  that he  said that  the citizen may object to  the scheme  on  public  grounds  or  on  personal grounds and  also that  the Court  did not  agree  with  the contention that  the grounds of objection against the scheme were confined  only to  those mentioned  in section 68C. The Court was not called upon to decide as to whether the scheme of sections  68C and 68D embraced objections of a "personal" nature or  not and  it was  only incidentally that reference thereto was made. We conclude that Gullapalli’s case (supra) is  no   authority  for   the  proposition  that  "personal" objection not  confined to  the scope of the requirements of section 68C are admissible under section 68D.      9. Referring  to ground (iii) pressed in the High Court on behalf  of the  appellants, Shri  Kacker made  a  serious grouse of  the fact  that the impugned order did not so much as mentioned  those objections  made by the appellants which called for  a comparing  of  the  type  held  by  us  to  be permissible and he contended that the impugned order was bad on  that   account.  In   reply  learned   counsel  for  the respondents argued  that at  the hearing  before  the  State Government no  such objections  were pressed.  Our attention has been  drawn by  Mr. Kacker  to paragraphs 14, 20(a), 21, 26, 43,  49? 51,  61, 63,  64, 73 and 75 of the statement of objections forming  annexure to  the petition  under Article 226 of  the Constitution before the High Court. A perusal of those paragraphs  makes it abundantly clear that quite a few of the  objections were such as were related to the purposes mentioned in  section 68C and called for a comparison of the proposed service  with the  existing one. That some of these objections were  pressed  before  the  State  Government  is apparent from  the written arguments which were submitted to Shri S.  K. Bhargava who is the author of the impugned order and which were appended to the petition under Article 226 or the Constitution  of India before the High Court in the form of Annexure  J. The stand of the respondents to the contrary is thus  not well  founded. But then we further find that in the impugned order its author has devoted five paragraphs to the objections which called for comparison of both the types above discussed.  In paragraphs  24 to 27 the impugned order rightly  rejects  the  objections  which  were  based  on  a comparison of  the S.T.U.  with  the  private  operators  in relation to their respective past performances, and in doing so relies  correctly on  The Capital  Multi-purpose case. It proceeds then  (in paragraph 28) to take note of the further opinion expressed  in the  same case  from which  it follows that a  scheme may nevertheless be shown not to be in public interest by demonstrating 1020 that it  does not  provide for  a  service  which  would  be efficient, adequate,  economical and  properly  coordinated; but then  dismisses the  matter with  the  remark  that  the

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appellants had  not been  able "to show anything substantial which may justify this inference that the proposed scheme in respect of  the routes  in question  would not be efficient, adequate, economical  and properly  coordinated",  a  remark which is  obviously meant  to dispose of those objections to the scheme  which called  for a  comparison of  the  service envisaged by  it with  that already  available. The  cryptic remark no  doubt neither lists the objections disposed of by it nor  discusses the  relevant evidence  but the reason for the absence  of a  discussion in  this behalf  appears to be that no  such evidence  had been  produced before  the State Government. And  if that  be so,  much fault cannot he found with the brevity of the contents of paragraph 28.      However,  Mr.   Kacker  made  another  grouse  in  this connection, namely,  that the  State Government  refused  to summon witnesses  and to enforce the production of documents at the request of the appellants and that in doing so it had acted illegally and by thus shutting out evidence had really denied to  the appellants  any  real  opportunity  of  being heard. We  find that when the case was at the evidence stage before the  State Government,  the appellants  submitted two applications requesting that witnesses, one of whom, namely, the Secretary,  Legislative Assembly,  U.P. was to bring the proceedings of  that Assembly, relating to the speech of the Chief Minister  delivered on  the 13th July 1967 in relation to the  budget of  the  Transport  Department,  be  summoned through letters  of request  and examined.  The applications were rejected  by Shri  S.K. Bhargava through an order dated the 20th March 1969, the relevant part of which runs thus: - .      "It is  nat necessary  to issue  letters of  request as      prayed  for.  The  objectors  can  only  examine  those      witnesses whom  they themselves brought. It is also not      necessary to send for any record as prayed. No further  reasons appear  in the  order for a rejection of the prayer  made for issuing letters of request but it seems that while  making the  order Shri  Bhargava had in mind the provisions of  sub-rules (2)  and (4) of rule 7 of the Rules and of the absence from the Act and the Rules of any express provision conferring  on the  State Government  the right to issue process  for enforcing the attendance of witnesses and the production  of documents.  The said two sub-rules may be reproduced: 1021           "(2) The said officer shall fix the date, time and      place for  the hearing  of  the  objections  and  issue      notices   thereof    to   the    objector,   and    the      representatives of  the  State  transport  undertaking,      calling upon  them to  appear before  him in person, or      through a  duly authorised  agent  or  counsel  and  to      produce their oral and documentary evidence on the date      fixed for hearing."           "(4) Subject to the provisions of sub-rule (7) the      objector and  the  State  transport  undertaking  shall      produce their  evidence and  witnesses,  necessary  and      relevant to  the inquiry,  on the  first date fixed for      the hearing." The contention  raised on  behalf of the respondents is that the power  the exercise  of which  the appellants  sought by their applications  had not been conferred by the Act or the Rules on the State Government and that, therefore, the order passed by  Shri Bhargava  was correct.  We find substance in this contention.  It is  true that  the State Government was acting in  the discharge of its quasi-judicial functions and it could devise its own procedure (in the absence of express

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provisions to  the contrary)  so that its functions could be effectively discharged.  Further, when the statute gives the power to  the State  Government to afford to the objectors a reasonable opportunity  of being heard and to take evidence, oral as  well as documentary, in support of their objections the power  to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and  needs no  statutory  sanction,  although  the power to  enforce their attendance or compel them to produce documents is  lacking on  account of  absence of  conferment thereof by a statute. This view finds support from Nehru Mot Transport Co-operative  Society  Limited  v.  The  State  of Rajasthan, in  which also the argument raised was that there could  be  no  effective  hearing  without  a  provision  or coercive process  compelling  attendance  of  witnesses  and production of  documents. It  was pointed  out in  that case that the  Rajasthan Rules did not provide for compelling the attendance of  witnesses and  that  it  was  enough  if  the authority took  evidence  of  witnesses  whom  the  objector produced before  it. It was also remarked that the authority might 1022 help the  objector to  secure their  attendance by  issue of summonses, though  in the  absence of  any provision  in the law, the  witnesses might  or might  not  appear  in  answer thereto.      But then  the question  arises whether  an order of the State Government  rejecting a prayer for issuance of summons or letters  of request  would be  illegal. This question was answered in  the negative  by Wanchoo,  J., in  the  Capital Multi-purpose case (supra) with the following observations:      "Further, reliance  in this connection is placed on the      observation of  this Court in Nehru Motor Transport Co-      operative Society’s  case (supra)  that  the  authority      might help  the objectors  by issuing  summonses.  This      observation in  our  opinion  does  not  mean,  in  the      absence of  any provision in the Act or the Rules, that      the authority was bound to summon witnesses even though      the  persons  summoned  were  not  bound  to  obey  the      summonses as there was no provision in law for issue of      such summonses.  The use  of the  words  ’by  issue  of      summonses’ in  the circumstances  of that  case was  by      oversight, for  issue of  summonses presumes that there      is authority  to issue them and the person to whom they      are issued is bound to obey. But in the absence of such      power all that the authority can do is to issue letters      merely requesting  persons to  appear and it is open to      those persons to appear or not. In this situation if an      authority decides  not to  issue such letters it cannot      be said that there was no effective hearing." These observations  have our  concurrence and we do not find that any  right of  the appellants  was infringed when their applications  for  summoning  witnesses  and  production  of documents were rejected.      Here we  may briefly  advert to  another aspect  of the matter to  which our  attention was  drawn on  behalf of the respondents. Sub-rule (5) of rule 5 of the Rules states      "A person  filing an objection and desiring to be heard      shall  also   submit  along   with  the  memorandum  of      objections, a  list of  documents  and  witnesses  with      their names  and addresses  and a  brief summary of the      nature and  type of evidence which each such witness is      likely to give." No compliance with this rule was made by the appellants when the two  applications just  above considered were filed. The

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sub-rule serves  a salutary  purpose and,  that is, that the inquiring authority  may shut  out  all  evidence  which  is sought to be brought on the record 1023 but which  is either  irrelevant or  otherwise inadmissible. The two  applications, therefore,  suffered from  a  serious flaw by  reason of which alone they merited dismissal unless the summary  insisted upon  by  sub-rule  (5)  was  supplied before they were disposed of.      10. In  the result the appeal must fail in spite of the fact that we have accepted one main contention raised by Mr. Kacker, namely,  that objections involving comparison of the pre-existing services  with those  proposed in  a scheme are relatable  to  the  ingredients  of  section  68C  and  are, therefore,  admissible   under  section   68D  of  the  Act. Accordingly it is dismissed but with no order as to costs. S.R.      Appeal dismissed. 1024