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CASE NO.: Appeal (civil) 3446  of  2001

PETITIONER: GAJRAJ SINGH & ORS.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       01/05/2001

BENCH: CJI, R.C. Lahoti & Doraiswamy Raju

JUDGMENT:

WITH C.A.No.3447/2001(@SLP(C) No.1339/2000), C.A.No.3448/2001(@SLP(C) No.1340/2000), C.A.No.3449/2001(@SLP(C) No.1342/2000), C.A.No.3450/2001(@SLP(C) No.1338/2000), C.A.Nos.3451-3452/2001(@SLP(C) NoS.11076-77/2000), C.A.No.3453/2001(@SLP(C) No.11081/2000), C.A.Nos.3454-3455/2001(@SLP(C) No.11079-80/2000), C.A.No.3456/2001(@SLP(C) No.11082/2000), C.A.No.3457/2001(@SLP(C) No.11084/2000), C.A.No.3458/2001 (@SLP(C) No.11088/2000), C.A.No.3459/2001 (@SLP(C) No.11092/2000), C.A.No.3460/2001 (@SLP(C) No.11106/2000), C.A.Nos.3461-3463/2001 (@SLP(C) No.11107-09/2000), C.A.No. 3464/2001(@SLP(C) No.13436/2000), C.A.No. 3465/2001(@SLP(C) No.13437/2000), C.A.Nos. 3466-3467/2001(@SLP(C) No.11089-90/2000), C.A.Nos. 3468-3470/2001 (@ I.As 1-9 In & SLP(C) Nos.7834-7836/2001    [CC5356-58/00]), C.A.No.3471/2001    (@I.As 1-8 In & SLP(C)No.7844/2001                                         [CC5767/00])

J U D G M E N T

R.C. Lahoti, J. L...I...T.......T.......T.......T.......T.......T.......T..J     A  draft scheme under Section 68-C of the Motor Vehicles Act,  1939  to nationalise  Saharanpur-Shahdra-Delhi  route, prepared  by Uttar Pradesh State Road Transport Corporation, Lucknow  was  published  on 29.9.1959.  The  Allahabad  High Court  by its judgments dated 31.10.1961 and 7.2.1962 upheld the  scheme as against 50 operators but quashed the same  as against  50 operators holding that they should be granted an opportunity  of hearing.  These 50 operators were those  who had  laid challenge to the validity of the scheme by  filing two  groups  of  writ  petitions consisting  of  32  and  18 operators  respectively.  Judgments of Allahabad High  Court were  upheld  by this Court in Jeewan Nath Wahal Vs.   State Transport Appellate Tribunal (Civil Appeal No.  1616 of 1968

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decided  on  3.4.1968).  Out of these 50 operators  some  of them  filed  suits  in  different courts and  by  virtue  of interim orders they were successful in scuttling the hearing and  keeping the scheme pending for well over 20 years.  The matter  came  up  before  this   Court  in  Shri  Chand  Vs. Government  of  U.P.   - (1985) 4 SCC 169 wherein  vide  its judgment  dated 23.8.1985 a two- Judges Bench of this  Court directed  the scheme to be quashed solely on the ground that the  delay  of 26 years in disposing of the  objections  had resulted  in  violation of Articles 14 and 19 (1)(g) of  the Constitution.   The  Government  was directed to  frame  the scheme afresh, if necessary.

   Pursuant  to  the  above  direction,  the  U.P.S.R.T.C., Lucknow  framed  a draft scheme and published the same  vide notification  No.  1239 RW/1056 RW-85 dated 13.2.1986.   The scheme so published included not only Saharanpur-Delhi route but 38 others - in all 39 routes.  Objections were preferred against  the  scheme.   While  the   draft  scheme  and  the objections were so pending the Motor Vehicles Act, 1988 came into  force  with effect from 1.7.1989.  Clause (e) of  sub- section  (2)  of Section 217 of the 1988 Act  provided  that notwithstanding repeal of the 1939 Act any scheme made under Section  68-C of the 1939 Act and pending immediately before the  commencement  of  this  Act shall  be  disposed  of  in accordance  with  the provisions of Section 100 of the  1988 Act.   The  competent authority held the proposed scheme  to have  lapsed by operation of Section 100(4) of the 1988  Act which  provides that where a proposed scheme is not approved within  a  period  of  one  year   from  the  date  of   its publication,  the  proposal shall be deemed to have  lapsed. The  matter travelled upto this Court and was disposed of by judgment   dated   31st  March,   1992  delivered  in   C.A. Nos.1198-1201  of 1992 (Ram Krishna Verma & Ors.  Vs.  State of  U.P.   & Ors., (since reported as - (1992) 2  SCC  620). This  case  was confined to  Saharanpur-Shahdra-Delhi  route only.   This  Court  held that in Jeewan Nath  Wahals  case (Civil  Appeal No.  1616 of 1968 decided on 3.4.1968),  this Court  while dealing with this very scheme had held that the scheme  had  become final except for the purpose of  hearing the  50  operators  who had challenged the  scheme  and  the two-Judges  Bench which dealt with and decided Shri  Chands case  (supra)  was  not justified in quashing  the  proposed scheme  bypassing  Jeewan  Nath  Wahals case  which  was  a three-Judges  Bench decision.  This Court further held  that the  fresh  draft scheme under Section 68-C dated  13.2.1986 must  therefore  be construed to be a draft scheme  only  in relation  to  50  existing operators as per  the  directions ultimately  emerging in Jeewan Nath Wahals case.  The Court further  observed that the 50 operators who were to be heard (regarding  Saharanpur-Delhi route) had made a blatant abuse of  the process of the court by delaying hearing as directed in Jeewan Nath Wahals case and therefore they had forfeited their  right of hearing.  In exercise of the power conferred by  Article 142 (1) of the Constitution this Court held that the  50  operators  could  not  be  permitted  to  drag  the litigation  which  should  be brought to an end and  as  the objections  preferred  by them had outlived  their  purpose, hearing  of  their  objections  was  rendered  a  procedural formality  with  no  tangible result.  The  Court  therefore directed  the  competent  authority to  approve  the  scheme within  a period of 30 days from the date of receipt of  the judgment and publish the approved scheme in the gazette.

   It  appears  that  the competent  authority,  which  was

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seized  of the hearing of several objections filed before it and had in fact appointed a date of hearing, abruptly closed the hearing, approved the scheme and directed the same to be published.   The  approved  scheme   was  published  in  the Government     Gazette       vide       notification     no. 1635/XXX-2-93-365-85  dated 29.5.1993.  The preamble to  the notification  states  that  the approved  scheme  was  being published in exercise of the powers under sub-section (2) of Section  100 of the 1988 Act and in view of the  directions given  by the Honble Supreme Court in C.A.  Nos.1198, 1199, 1200  and  1201 of 1992 Shri Ram Krishna Verma &  Ors.   Vs. State  of U.P.  & Ors. The approved scheme includes all the 39  routes  as proposed in the draft scheme  published  vide notification dated 13.2.1986.

   Several  petitions  were filed in Allahabad  High  Court laying  challenge  to  the approved scheme.   Vide  impugned judgment dated 19.11.1999 a Division Bench of High Court has dismissed  all  the  petitions forming an opinion  that  the scheme  had  stood  approved  by the Supreme  Court  in  Ram Krishna  Vermas case (supra) and so was the view taken also in  Nisar  Ahmad  & Ors.  Vs.  State of U.P.  &  Ors.-  1994 (Suppl) 3 SCC 460 and therefore nothing survives for hearing and decision on the draft scheme.

   Feeling  aggrieved  by  the judgment of the  High  Court several  petitions seeking special leave to appeal have been filed.  There are a few intervention applications also filed by a few operators.

   Delay condoned and leave granted in all the SLPs.

   Having  heard  learned  counsel for the parties  we  are satisfied  that  the  judgment of the High Court  cannot  be sustained  and  has  to be set aside as regards  38  routes, i.e.,  routes  other  than Saharanpur- Delhi  route  finding mention  in  the draft and approved schemes at serial  no.1. The High Court has, in our opinion, clearly erred in holding that  the decision of this Court in Ram Krishna Vermas case had the effect of approving the draft scheme dated 13.2.1986 in  its  entirety  and  after the decision  in  Ram  Krishna Vermas  case  nothing  had  remained  to  be  done  by  the competent  authority except to approve the draft scheme  and notify  the  same  as approved scheme.   We  have  carefully perused  the  decision  in Ram Krishna  Vermas  case.   The decision  is  confined  to  Saharanpur-Shahdra-Delhi   route alone.  The tracing of the history of the litigation and the reference  to  earlier decisions of this Court  wherein  the nationalisation of this route was put in issue clearly shows that this Court was dealing with Saharanpur- Delhi route and the  conduct  of those 50 operators who had objected to  the nationalisation  of that route and were thereafter indulging into wanton and vexatious litigation and thereby frustrating the  hearing.   In  the judgments of the  High  Court  dated 31.10.1961  and 7.2.1962, referred to in the earlier part of this  judgment,  and the decisions of this Court  in  Jeewan Nath  Wahal (supra) and Shri Chand (supra) the dispute which had  come  up for determination was confined to  that  route alone.   In  Shri Chands case this Court had  directed  the Government  to  frame the scheme afresh, if  necessary,  and obviously  that direction related to Saharanpur-Delhi route. Acting  on that direction, notification dated 13.2.1986  was published which included not only Saharanpur-Delhi route but 38  other  routes  as well.  Objections were  now  filed  as against  the proposed nationalisation of 38 routes also.  By

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reference  to  decision  in  Ram Krishna  Vermas  case  the competent  authority  could  not have  abruptly  closed  the hearing  of  objections which related to such 38 routes  nor the  High  Court  could have upheld approval of  the  scheme without  disposal  of  the   objections  preferred   against proposed   nationalisation   of  38   routes   (other   than Saharanpur-Delhi route).

   It  is  pertinent to note that Section 68-D of the  1939 Act  provided for filing of objections within 30 days of the publication  of the proposed scheme and consideration of the objections   by  the  State   Government  after  giving   an opportunity   of   hearing  to   the  objectors   or   their representatives  and  the  representatives   of  the   State Transport  Undertaking.   A similar provision for filing  of the  objections  and hearing thereon is included in  Section 100  of the new Act.  The provision for filing of objections and  hearing  to base the decision thereon, as contained  in the  new  Act, being not inconsistent with  the  predecessor provision  rather being pari materia therewith, continues to survive.   The provisions for nationalisation of routes  and excluding  operation  on  such routes by  private  operators consequent  thereupon are a reasonable restriction in public interest  on  the  fundamental right to carry  on  trade  or business  under Article 19(1)(g) of the Constitution.  It is on  the  hearing  of  the   objections  that  the  competent authority  would form an opinion on the question whether the proposed   nationalisation  would   provide  a   convenient, adequate, economical and properly coordinated road transport service  and  therefore it was necessary to do so in  public interest.   The  scheme  may then be annulled,  modified  or approved.   The  right  to  file objections  and  to  secure hearing  thereon  is statutorily provided and is a  valuable right  of  the  private operators who would  be  eliminated, completely  or  partially,  from  operation  on  the  routes covered  by the scheme depending upon how and to what extent it is approved.  This Court did not and could not have taken away  such valuable right of hearing on the objections which were  already before the competent authority.  The  decision of  this Court in Ram Krishna Vermas case does not refer to the  38 routes and therefore this Court has not excluded the hearing  insofar  as  such 38 routes  are  concerned.   Such exclusion  of  right  of  hearing  cannot  be  read  in  the judgement  by  implication.  A doubt arising from reading  a judgment  of the Court can be resolved by assuming that  the judgment  was delivered consistently with the provisions  of law and therefore a course or procedure in departure from or not  in conformity with statutory provisions cannot be  said to  have  been intended or laid down by the Court unless  it has been so stated specifically.

   We  have  carefully perused the decision of  this  court dated  9.9.1994 in Nisar Ahmad & Ors.  Vs.  State of U.P.  & Ors.-  1994 (Suppl) 3 SCC 460 also.  Therein also these very schemes  had  come  for  the consideration  of  this  Court. Almost  the  same  pleas were raised as were raised  in  and disposed  of by Ram Krishna Vermas case.  Vide para 2  this Court  has  said  that the direction issued by  this  Court under  Article  142  (1)  are binding  on  all  the  parties including  the 50 operators and were declared to be bound by the  orders  passed  by this Court in  Ram  Krishna  Vermas case.   Two contentions were advanced before this Court  on behalf  of  Nisar  Ahmad  & Ors.   :   firstly,  that  prior approval of the Central Government relating to the scheme on the  inter-state route was mandatory under Section 100(3) of

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the 1988 Act and yet not having been obtained the scheme was vitiated;   and  secondly, that the scheme having  not  been published  under Section 100 (4) within a period of one year from the date of the draft scheme it had lapsed.  This Court found  no  force  in the contentions.  The  first  plea  was turned  down  on the authority of Jeewan Nath Wahal and  Ram Krishna  Vermas  cases  as also on the  ground  that  prior approval of the Central Government had in fact been obtained on  9.9.1959.  As to the second contention it was held  that the  scheme was not the one proposed under the 1988 Act  but under  the 1939 Act and therefore the scheme could not lapse as  what  is required by the proviso to sub-section  (3)  of Section  100  (of the 1988 Act) is a scheme  proposed  under the  Act.  Further, a draft scheme was published under the direction  of this Court.  All these observations clearly go to  show  that Nisar Ahmad & Ors.s case (supra) related  to that  scheme  which was dealt with by this Court in  earlier two  decisions.   Needless  to say the 38  routes  were  not subject-matter of those two decisions.

   The  upshoot of the above discussion is that the appeals are liable to be allowed insofar as the said 38 routes (i.e. other than Saharanpur-Delhi route) are concerned.

   However,  it is brought to our notice that on all the 39 routes,  the  State Road Transport Corporation of  U.P.   is@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ operating  buses ever since 1993 and for that purpose it has@@ JJJJJJJJJJJJJJJJJJJJJ made  substantial  investment  by putting the buses  on  the routes  and  recruiting  employees to conduct,  oversee  and maintain  operation  on  such  nationalised  routes.   While protecting  the statutory right of the operators to be heard under  sub-  section(2) of Section 100 of the 1988  Act,  we have  to keep in view the public interest also and therefore we  do  not  deem  it  proper   to  quash  post  haste   the notification  dated  29.5.93  which has notified  the  draft scheme  dated  18.2.86  as  the  approved  scheme.   In  the peculiar  facts  and circumstances of this case  allowing  a hearing  to  the  operators on their objections and  in  the meantime  not  disturbing the status quo as to operation  of buses  on  the  routes in question would meet  the  ends  of justice and we propose to direct accordingly.

   The  appeals are allowed.  The impugned judgment of  the High Court dated 19th November, 1999 is set aside.  The writ petitions  are  partly  allowed.  It is  directed  that  the objections  filed against the draft scheme dated 18.2.86  in so  far as they relate to 38 routes listed at serial nos.  2 to  39 of the scheme, shall be heard and disposed of by  the competent  authority  on their own merits and in  accordance with  law  for which purpose the competent authority  shall, within a period of four weeks from today, appoint and notify a  date of hearing.  We make it clear that only such of  the objections  shall  be available to be heard and  decided  as were  filed within 30 days of the date of publication of the draft  scheme  in  the  official   gazette  and  which   are maintainable  and  available to be heard in accordance  with Section  68-D  of the 1939 Act read with sub-section (2)  of Section  100 of the 1988 Act.  The draft scheme was notified under Section 68-C of the 1939 Act on 13.2.1986.  The period of  30 days for filing objections had come to an end  before 1.7.1988,  the  date of coming into force of the  1988  Act. All  that had remained to be done was to hear and dispose of

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the  objections  which were already preferred and  shall  be deemed  to have been preferred under Section 100 (1) of  the 1988  Act  and were available to be heard and determined  by virtue  of  the  saving clause contained in  clause  (e)  of sub-section  (2) of Section 217 of the 1988 Act.  Thus,  the competent  authority  shall hear all such parties  who  were entitled in law to be heard on the crucial date, if they had filed their objections within the stipulated period.  If the objections  or  any  of them are allowed, the  draft  scheme shall  meet  the  fate  consistently with  the  decision  on objections  and  the approved scheme dated 29.5.93 shall  be accordingly  modified  or  annulled  in  so  far  as  routes specified  at  serial nos.  2 to 39 are concerned.   In  the event  of  the  objections  being  dismissed,  the  approved scheme,  as notified on 29.5.93, shall continue to remain in operation.   At the risk of repetition we would like to make it  clear  that  in  so far  as  Saharanpur-Delhi  route  is concerned,  no  objection in that regard shall be heard  and the scheme as regards the said route shall be deemed to have been  approved  and  maintained  in terms  of  this  courts direction  in Ram Krishna Vermas case (supra).  No order as to the costs.

   All  the appeals and the intervention applications shall be  deemed  to have been disposed of in terms of  the  above direction.