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PETITIONER: VISHUNDAS HUNDUMAL, ETC.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT13/03/1981

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KOSHAL, A.D. SEN, A.P. (J)

CITATION:  1981 AIR 1636            1981 SCR  (3) 234  1981 SCC  (2) 410        1981 SCALE  (1)589  CITATOR INFO :  E&R        1981 SC1639  (1,2,13)

ACT:      Motor Vehicles  Act,  1939-Scheme  No.  50-M  reserving notified  routes  for  exclusive  operation  by  the  Madhya Pradesh  Road   Transport   Corporation-Certain   operators’ permits only  were curtailed  and they  were prohibited from operating their stage carriages on a portion of their routes which were  overlapping with  the notified  route leaving 19 others untouched,  through oversight-Whether  such an action amounts to hostile discrimination.

HEADNOTE:      Allowing the petitions, the Court ^      HELD: (1) Undoubtedly, the error or omission was on the part of  the Regional  Transport Authority  in  the  instant case, in  not supplying  full  information  to  the  Special Secretary about  all the  valid  permits  in  force  at  the relevant time  and which  were either  to  be  curtailed  or cancelled consequent  upon the  approval of the scheme. This error or  omission on  the part  of the  Regional  Transport Authority has  resulted in  gross discrimination between the transport operators  in the  same class  in that  some  have their permits  remaining intact  with  right  to  ply  their vehicles on the notified route and some others whose permits are curtailed.  When discrimination  is  glaring  the  State cannot take recourse to inadvertence in its action resulting in discrimination. [237 D-E & 238 B-C]      (2)   Conceding    that   this    was    discrimination unconsciously indulged  into by inadvertence or oversight on the part  of a  governmental agency,  the  error  should  be rectified. To  reject the  whole scheme would be destructive of  a   wholesome  effort  towards  nationalisation  of  bus transport which  is generally undertaken in public interest. In this  case denial  of equal  protection,  complained  off flows from  State action  and has  a direct  impact  on  the fundamental  rights   of  the  petitioners.  A  constructive approach by  removing  the  discrimination  by  putting  the present petitioners  in the  same class  as those  who  have enjoyed favourable  treatment by inadvertence on the part of

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the Regional  Transport Authority  will  meet  the  ends  of justice. The  benefit of  this order  would be available, if and  only   if,  the  petitioners  have  valid  permits  for operating stage carriage and if such permits are there, they would be  without restriction  for operating on that part of the route of each of the petitioners which overlaps with the notified  route  but  it  would  be  open  to  the  Regional Transport Authority  to impose  corridor  restrictions;  so, however, that  such restriction  does not  suffer  from  the defect   of    discrimination   which   is   found   to   be constitutional. [238A-B-D, E-G]      Ramnath Verma  v. State  of Rajasthan;  [1963] 2 S.C.R. 152, distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Special Leave Petitions (Civil) Nos. 6150 & 7839/79. 235      From the  Judgment and  Order dated 15-1-79 of the High Court of  Madhya Pradesh at Jabalpur in C.W.C. No. 15/79 and M.P. No. 12/79 respectively.                             AND      Writ Petitions Nos.435, 763 & 813 of 1979.           (Under Article 32 of the Constitution.)      G.L. Sanghi, S.K. Mehta, P.N. Puri and M.K. Dua for the Petitioners.      Kameshwar Nath for the Respondent.      S.K. Gambhir for the Respondent-(State)      The Judgment of the Court was delivered by      DESAI, J.  Petitioners in this group of petitions under Article 32  of the  Constitution and  petitions for  special leave to  appeal were  at the relevant time holders of stage carriage permits  granted to  them under  the Motor Vehicles Act, 1939  (’Act’  for  short),  and  were  operating  stage carriages on  the routes  for which  permits were granted. A Scheme No.  50-M was  framed and  publicised by  the  Madhya Pradesh State  Road Transport Corporation (’Corporation’ for short), covering  certain routes including (i) Rewa-Shahdol; and (ii)  Satna-Ramnagar, which  were  to  be  reserved  for exclusive operation  by the  Corporation.  After  objections were invited  and heard, the scheme was finally approved and it came  into force  on January  20, 1979.  On the  approved scheme coming  into  force  part  of  the  routes  on  which petitioners were  operating  overlapped  with  the  notified routes.   Consequently    their   permits   were   curtailed prohibiting them  from operating  their stage carriages on a portion of  their routes  which were  overlapping  with  the notified route.  This action  was challenged  by filing writ petitions under  Art. 226  of the  Constitution in  the High Court of Madhya Pradesh at Jabalpur. A Division Bench of the High Court rejected all the petitions except one. Hence some petitions for  special leave  and other writ petitions filed by the  petitioners who are operators of the stage carriages and who  are affected  by the  curtailment of  their permits consequent upon the approved scheme coming into force.      Number of  contentions  were  raised  before  the  High Court, about  the validity  of  the  scheme,  the  procedure adopted while 236 approving the  scheme, the  opportunity to  raise objections and the  consideration of the objections. None of them found favour with the High Court and the reasons which appealed to the High Court rejecting those contentions are so convincing

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that we adopt them and reject all those contentions.      The only contention that survives for our consideration is that  while cancelling  and or curtailing certain permits for routes  parts of  which  overlapped  with  the  notified routes there  were other  permit holders  in the  same class having stage  carriage permits  for certain  routes parts of which were  overlapping with  the notified  route and yet in the  case   of  petitioners  their  permits  were  curtailed prohibiting them  from operating  their stage  carriages  on that portion  of the  route for  which they had permit which was overlapping  with the notified route while others in all 19 who,  though similarly  situated, were favourably treated by neither  curtailing nor cancelling their permits and were permitted to  ply their  stage carriages  on the  routes for which they  had  permits  passing  over  a  portion  of  the notified route  without any let or hindrance. The contention is that  this is  hostile discrimination  by  executive  act without any valid criteria for picking and choosing and that the discrimination  is so  writ large  on its  face that the Corporation and  the State Government did not try to justify the same  before either  the Special Secretary who heard the objections or  the High  Court and  took  convenient  refuge under   the    plea   of   unconscious   and   unintentional discrimination through  oversight relying upon Ramnath Verma v. State  of Rajasthan.  Those 19  operators who  received a favourable yet  unjustified treatment  are listed at page 45 in Special  Leave Petition  No. 6150/79. Neither the learned counsel for the Corporation nor Mr. Gambhir for the State of Madhya Pradesh  attempted to  justify classification amongst operators holding stage carriage permits and plying vehicles on routes  part of  which was  overlapping with the notified route.      Before we examine what has been laid down by this Court in Ramnath  Verma’s case (supra) it would be advantageous to recall  how   the  Special   Secretary  appointed   to  hear objections and approve the scheme dealt with this contention of the  petitioners. In  paragraph 13  of his  order he  has observed as under :-           "It  is  clear  from  the  evidence  that  certain      permits which were valid on the date of the publication      of the  scheme were left out and have not been included      in the scheme 237      which was published under section 68-C. The question to      be considered is whether the permits have been left out      by the  Corporation consciously  and whether this is an      act of  conscious discrimination.  And also  if  it  is      conscious discrimination,  what will be its effect. The      law relating  to left out permits has been laid down by      the  Supreme   Court  in  Ramnath  Verma  v.  State  of      Rajasthan". After  referring  to  the  facts  in  Ramnath  Verma’s  case (supra), he  held that  error or omission was on the part of the  Regional   Transport   Authority   in   not   supplying particulars of  all those permits which were valid and which were either to be curtailed or cancelled consequent upon the approved scheme  coming into  force and  on this account the Corporation cannot  suffer and  the whole  scheme cannot  be struck down. For almost identical reasons the High Court has negatived this contention.      Undoubtedly, the  error or  omission was on the part of the Regional  Transport  Authority  in  not  supplying  full information to  the Special  Secretary about  all the  valid permits in  force at the relevant time and which were either to be curtailed or cancelled consequent upon the approval of

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scheme. This  error or  omission on the part of the Regional Transport Authority  has resulted  in  gross  discrimination between the  transport operators  in the  same class in that some have  their permits  remaining intact with right to ply their vehicles  on the  notified route and some others whose permits are  curtailed. That  this is discrimination between persons in  the same class does not call for any discussion. Maybe, the discrimination may arise out of error or omission on the  part of  a governmental  agency but the question is: Can it  be overlooked  on that account? Ramnath Verma’s case (supra) cannot help the respondents in this behalf because a Constitution Bench  of this  Court held  in that  case  that discrimination under Art. 14 is conscious discrimination and not accidental  discrimination that  arises  from  oversight which the  State is  ready to  rectify. We  did not find any willingness on  the part of the State authorities to rectify the error  either in  the High  Court or  before this Court. There was  some vague suggestion of another scheme which was under   examination   which   may   ultimately   result   in rectification  of   this  discrimination.   No  concrete  or adequate information was laid before the Court as to whether that scheme  is pending  and how long would it take to reach its final  destination. And  further, there  is no guarantee that it  will be  approved  We,  however,  take  note  of  a submission by Mr. Gambhir, learned 238 counsel for  the State Government that the said scheme would be finalised within a period of six months.      Conceding that  this was  discrimination  unconsciously indulged into  by inadvertence or oversight on the part of a governmental agency,  by  this  order  we  only  propose  to rectify the  same and  not reject  the whole scheme. Such an approach would  be destructive of a wholesome effort towards nationalisation  of   bus  transport   which  is   generally undertaken  in   public  interest.  When  discrimination  is glaring the  State cannot  take recourse  to inadvertence in its action  resulting in  discrimination. The  approach  is, what is the impact of State action on the fundamental rights of citizen.  In this  case denial  of  equal  protection  is complained of.  And this  denial of  equal protection  flows from State action and has a direct impact on the fundamental rights of  the petitioners. We, therefore, propose to take a constructive approach  by  removing  the  discrimination  by putting the  present petitioners  in the same class as those who have enjoyed favourable treatment by inadvertence on the part of the Regional Transport Authority.      Accordingly we  hereby direct  that order conditions in permits  curtailing   the   permits   of   the   petitioners prohibiting them  from passing  over the overlapping portion of their  route with  the  notified  route  be  quashed  and declared to  be of  no consequence  till all  the  operators including those  excluded similarly  situated are  similarly treated.      Before concluding  it may  be noticed that we were told that the  petitioners’ permits  have expired.  This order is not  to   be  interpreted  or  used  for  even  remotely  or indirectly suggesting that under the effect of this order or as a  result of  this  order  petitioners  are  entitled  to renewal  of   their  permits.   The  benefit  of  the  order hereinabove made  would be  available, if  and only  if, the petitioners have valid permits for operating stage carriages and if  such  permits  are  there,  they  would  be  without restriction for  operating on that part of the route of each of the  petitioners which  overlaps with  the notified route but it  would be open to the Regional Transport Authority to

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impose  corridor   restrictions.  So,   however,  that  such restriction   does   not   suffer   from   the   defect   of discrimination which  we have  held by  this judgment  to be unconstitutional.      Order accordingly. We allow the special leave petitions and the  writ petitions  to the extent hereinabove indicated with no order as to costs. S.R.                                       Petitions allowed 239