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PETITIONER: SRI CHAND ETC.

       Vs.

RESPONDENT: GOVERNMENT OF U.P. LUCKNOW & ORS.

DATE OF JUDGMENT23/08/1985

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1986 AIR  242            1985 SCR  Supl. (2) 688  1985 SCC  (4) 169        1985 SCALE  (2)351  CITATOR INFO :  F          1986 SC1719  (4)  F          1987 SC1324  (2)  RF         1992 SC1789  (5)  D          1992 SC1888  (10)

ACT:      Constitution of  India, 1950, Arts. 32 and 19 (1) (g) - Delay in  performance of statutory duties - Whether violates Fundamental Right - s. 68-D, Motor Vehicles Act, 1959.      Motor Vehicle  Act 1939,  S. 68  (C) and 68 (D) - Draft scheme to  operate stage  carriages -  Unreasonable delay in the approval and publication of the scheme - Whether renders the scheme bad in law.

HEADNOTE:      The State  Government of Uttar Pradesh after overruling objections approved  a draft  scheme and  published it under sub-section (3)  of section  68-D of  the Motor Vehicles Act 1939  on   29th  September,  1959  to  authorise  the  State Transport Undertaking  of Uttar  Pradesh  to  operate  state carriages on  the inter-state  route between  Saharanpur and Delhi to  the total  exclusion of  all other  operators. The validity of  the scheme was challenged before the High Court of Allahabad by 50 operators. The High Court by its judgment dated October  30, 1961 directed the State Government not to enforce the  approved scheme  against the said operators and also ordered  that a fresh enquiry into the question whether the scheme  should be approved or not, be held. The approved scheme became  final as  regards other operators. The result was that while the 50 operators who had filed Writ Petitions were able  to operate  their stage  carriages on  the route, those who had not filed the writ petitions could not operate The U.P.  State Road Transport Corporation however commenced to operate its stage carriage too.      The respondent  State Government  has not  been able to hear the  objections to  the scheme  as directed by the High Court in 1961 because of certain orders of injunction passed by the  Civil Courts  restraining the  State Government from proceeding with  the hearing  in suits  filed by  or at  the instance of  one or  the other  of the 50 operators who have been running their services on the route all these 24 years. 689

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    The  petitioners  in  their  petitions  under  Art.  32 questioned   the validity  of the proceedings pending before the State  Government pursuant to the draft scheme published under Sec. 68-C of the Motor Vehicles Act 1939.      Allowing the Writ Petitions, ^      HELD: 1.  It 18  very strange  that Civil  Courts  have issued orders  of injunction  from time  to time effectively preventing  the  State  Government  from  disposing  of  the matter. This  is a case in which the Civil Courts should not have issued orders of injunction st all since such suits are barred under sec. 9 of the Cote of Civil Procedure. [690 H]      2. Delay  in performance of statutory duties amounts to an abuse  of process  of law  and has  to be remedied by the Court particularly when the public interest suffers thereby. 1691 E-F]      In the  instant case,  the delay  is in the order of 26 years. The  situation created  by the  unreasonable delay in the approval  of the  scheme has  not merely resulted in the violation of  Art 14  of the  Constitution but  also of  the fundamental right  of the  other operators  guaranteed under Art 19  (1) (g)  of the  Constitution. Therefore,  the draft scheme published  on February  26, 1959  ant the proceedings which have  taken place  pursuant thereto  are quashed.  The State Government is directed not to proceed with the bearing of the matter. It is open to the State Transport Undertaking to publish  a fresh  draft scheme  under Section 68-C of the Act if it is necessary to do so. [692 C, 691 A-B]      Yogeshwar Jaiswal  etc. v.  State  Transport  Appellate Tribunal Ors  A.I.R. 1985  S.C. 516,  Phool Chand  Gupta  v. Regional Transport  Authority Ujjain  Ors.  [1985]  Supp.  2 S.C.R. 682 followed.

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition (Civil) Nos. 1174 and 11851 of 1985.      (Under Article 32 of the Constitution of India)      U.R. Lalit  and B.S. Chauhan for the Petitioner in W.P. No. 1174 of 1985      K.K. Venugopal  and R.P.  Singh for  the petitioner  in W.P. No. 11851 of 1985.      The Judgment of the Court was delivered by 690      VENKATARAMIAH, J.  These two  petitions are filed under Article  32   of  the  constitution.  The  petitioners  have questioned the validity of the proceedings which are pending before the  State Government  pursuant  to  a  draft  scheme published under section 68-C of the Motor Vehicles Act, 1939 (hereinafter referred  to as ’the Act’) on February 26, 1959 proposing to  authorise the  State Transport  Undertaking of Uttar Pradesh  to operate stage carriages on the inter state route between Saharanpur and Delhi to the total exclusion of all other  operators. After  overruling the objections which had been  received in  response to the said draft scheme the State Government  approved the scheme and published it under sub-section (3)  of section 68-D of the Act on September 29, 1959.  The   validity  of   the  said  approved  scheme  was challenged  before   the  High  Court  of  Allahabad  by  32 operators. By  its judgment  dated October 30, 1961 the High Court of  Allahabad directed  the State  Government  not  to enforce the  approved scheme against the said 32 persons who had filed  the writ  petitions and  it further directed that the  State   Government  should  hold  a  fresh  enquiry  if

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necessary into  the question  whether the  scheme should  be approved  or  not.  Thereafter  in  another  batch  of  writ petitions disposed  of on  February 7,  1962 a similar order was passed  in favour  of 18 other petitioners. The approved scheme, however,  became final  as regards  other operators. The result  was that while the petitioners who had filed the writ petitions were able to operate their stage carriages on the route  those who  had not filed the writ petitions could not operate.  The  U.P.  State  Road  Transport  Corporation however commenced  to operate  its stage carriages too. Even though the  judgment was  delivered by  the  High  Court  of Allahabad in  the year 1961 it has not been possible for the State Government  to consider  whether  approval  should  be given  to   the  draft   scheme  either   with  or   without modification as  regards the  50 operators  pursuant to  the judgment of  the High Court. All the petitioners in the writ petitions who  were permitted to operate their vehicles have been running  their services all these 24 years. It has thus resulted in  discrimination. We  are informed that the State Government has  not been  able to hear the objections to the scheme as  per the  judgment of  the High  Court because  of certain orders  of injunction  passed by  the  Civil  Courts restraining the  State Government  from proceeding  with the hearing, in  suits filed by or at the instance of one or the other of  the 50  operators  who  have  been  running  their services on  the route  in question. It is very strange that the Civil  Courts have issued such orders of injunction from time  to   time  thus   effectively  preventing   the  State Government from disposing of the matter. We are of the view 691 that this  is a  case in  which Civil Courts should not have issued   orders of  injunction at  all since  such suits are barred under  section 9  of the  Code of Civil Procedure. Be that it as it may, the situation created by the unreasonable delay in  the approval of the scheme has not merely resulted in the  violation of Article 14 of the Constitution but also of the  fundamental right  of the other operators guaranteed under Article  19 (1) (g) of the Constitution. This Court in Yogeshwar Jaiswal etc. v. State Transport Appellate Tribunal and Ors.  A.I.R. 1985 S.C. 516, has observed at page 518-519 thus:           "The provisions  of section 68C and section 68D of           the Act  clearly indicate that any scheme which is           intended  for   providing   efficient,   adequate,           economical  or   properly  co-ordinated  transport           service should be approved either as it is or in a           modified form  or rejected,  as the  case may  be,           within   a    reasonably   short   time   as   any           extraordinary delay  is bound  to upset all or any           of  the   factors,  namely  efficiency,  adequacy,           economy or  co-ordination which ought to govern an           approved scheme  under Chapter  IVA of the Act. On           account of  various reasons  such as the growth of           population and the development of the geographical           area adjacent  to the  area or  route in question,           any  unreasonable   delay  may   render  the  very           proposal  contained   in  the  scheme  antiquated,           outmoded and  purposeless. Hence there is need for           speedy disposal  of the  case under section 68D of           the  Act............   Delay  in   performance  of           statutory duties amounts to an abuse of process of           law  and   has  to   be  remedied   by  the  court           particularly  when  the  public  interest  suffers           thereby. Hence  if there  is an  unreasonably long           and unexplained  delay  in  the  State  Government

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         passing orders  under section  68D of the Act, the           Court may issue a mandamus to the State Government           to dispose  of the  case under  section 68D of the           Act  within   a  specified   time  or  may  in  an           appropriate case  even issue  a writ in the nature           of certiorari  quashing the scheme ant writ in the           nature  of   prohibition   directing   the   State           Government not  to proceed  with the consideration           of the  scheme published  under section 68C of the           Act  because   section  68D  does  not  confer  an           unfettered discretion  on the  State Government to           deal with  the case  as it  likes. The power under           section 68D  has to be exercised having due regard           to the public interest." 692      Following the  observations in  the above  decision  in Yogeswar Jaiswal’s  case (supra),  in Phool  Chand Gupta  v. Regional Transport  Authority, Ujjain  & Ors. [1985] Supp. 2 S.C.R. 682  we have  quashed a draft scheme published in the year 1965  since it  had not  been  approved  by  the  State Government of  Madhya Pradesh  and had not been published as required under  section 68-D of the Act even though a period of 20  years had elapsed from the date of publication of the draft scheme.  In the instant case the delay is in the order of 26  years. In  view of the above decisions we allow these writ petitions  and quash  the impugned  scheme published on February 26, 1959 and the proceedings which have taken place till Now  pursuant thereto  and direct  the State Government not to  proceed with  the hearing  of the  matter. It is now open to  the State Transport Undertaking or Uttar Pradesh to publish a  fresh draft  scheme under section 68-C of the Act if it  18 of  opinion that  it is  necessary to  do 80.  We, however, permit  the State  Transport Undertaking to run the stage carriage vehicles which it is now running on the route in question  under permits  issued pursuant  to  the  scheme which is  now quashed,  till  28.2.1986  or  till  they  are replaced by temporary permits to be issued under sub section (LA) of  section 68-F  of the Act after the publication of a fresh draft  scheme or by permits issued under Chapter IV of the Act, whichever is earlier.      The writ petitions are accordingly allowed. There shall be  order as to costs. M.L.A.                                    Petitions allowed. 693