SUPREME COURT OF INDIA

Before:- D.P. Mohapatra and Brijesh Kumar, JJ.

Civil Appeal No. 4116-4117 of 2002 (Arising out of SLP (C) No. 14633-34 of 2000) with Civil Appeal No. 4118 of 2002 (Arising out of SLP (C) No. 15561 of 2000). D/d. 17.7.2002.

M. Madan Mohan Rao - Appellants

Versus

Union of India - Respondents

For the Appellants :- P.S. Misra, Senior Advocate, M.N. Rao, Senior Advocate, Vijay Bhaskar, M.S. Misra, C. Chandra Shekhar, Smt. T. Swarupa Reddy, Vishnu Sharma, Upendra Misra, D. Mahesh Babu, M.N. Rao and T.N. Rao, Advocates.

For the Respondents :- L. Nageswara Rao, Senior Advocate, K.C. Sudarshan, Jayanth Muthraj, G. Ramakrishna Prasad, Guntur Prabhakar, T.V. Ratnam, K. Subba Rao, Advocates.

A. Motor Vehicles Act, 1988, Sections 99(1), 100(1) and 103, Schedule I and II - Constitution of India, Article 19(1)(g) - Transport route permits - Permits - Scheme of allotment of routes - Notified route - Section 99(1) mandates the State Government that before publication of a proposal to form an opinion that for providing an efficient, adequate, economical and properly coordinated road transport service in the public interest a road transport service in general or in particular class of services, in a particular area or route or operation thereof should be run and operated by the State Transport in complete or partial exclusion of other transporters - Any person may objections to the proposed scheme published by the Government within 30 days of publication - On considering such objections the Government may or may not modify the proposal - The objection must relate to only relevant factors - Objectors are not entitled to raise any other objection which is irrelevant and extraneous to the provisions of the Act - Objections that the operators already operating on the route will suffer a loss is not a relevant matter for nationalisation scheme within the scope of the provision - No private operator can operate his services on any part or portion of a notified area or route unless the scheme provides so.

[Paras 21 to 26]

B. Constitution of India, Articles 19(1)(g), 266 and 136 - Motor Vehicles Act, 1988, Sections 99(1), 100(1) and 103, Schedule I and II - Transport route permits - Permits - Scheme of allotment of routes - Notified routes - Natural justice - Finding that an adequate opportunity was given to the objectors is a question of fact - Supreme Court does not interfere such findings of fact in SLP.

[Para 29]

Cases Referred :-

Smt. Saraswati Devi v. State of Uttar Pradesh and others, 1980(4) SCC 738.

Adarsh Travels Bus Service v. State of U.P. and others, 1985(4) SCC 557.

Anwar v. First Additional District Judge, Bulandshahr and others, 1986(4) SCC 21.

Gajraj Singh v. State of U.P. and others, 2001(5) SCC 762.

JUDGMENT

D.P. Mohapatra, J. - Leave granted in all the Special Leave Petitions.

2. The controversy raised in these cases relates to validity of the Notification issued by the Government of Andhra Pradesh under G.O.Ms. No. 13 to 24 Transport, Road and Building (Tr.-III) dated 27.1.2000 approving the Scheme submitted by the Andhra Pradesh State Road Transport Corporation ("APSRTC" for short) for exclusive operation of stage carriage services on certain routes in exercise of the powers conferred by Section 100 of the Motor Vehicles Act, 1988 (Central Act 59 of 1988) (for short 'the Act'). Since the similar questions of fact and law were involved in these cases they were decided by the High Court by a common judgement rendered on 21.4.2000 in writ petition Nos. 1546, 1552, 1553 and 1554 of 2000. These appeals were heard together with the consent of learned Counsel for the parties. While appeals arising out of SLP (C) Nos. 14633-34/2000 were filed by M. Madan Mohan Rao and Y. Rajendra Prasad who were the petitioners in W.P. No. 1546/2000 and 1553/2000 respectively; the appeal arising out of SLP (C) No. 15561/2000 has been filed by K. Mallikarjuna Rao who was the petitioner in W.P. No. 1552 of 2000.

3. By the Notification issued G.O. Rt. No. 67, Transport, Roads and Buildings (Tr.III-2), dated 29.1.1999 punished in the A.P. Gazette dated 1.2.1999 the State Government published the schemes as specified in Schedule I and II thereunder which were proposed to be notified under sub-section (1) of Section 100 of the Act inviting objections or suggestions from any person within a period of 30 days from the date of Gazette's publication.

4. In Scheme I the route proposed was K.R. Market-Chinakakani, in Krishna District (via. PNBS, Krishnalanka, Fire Station, Kanakadurga Varadhi, Vijayawada Club, Sundaraiah Nagar X Roads, Vaddeswarm X Roads, Atmakur X Roads, Mangalagiri (19.5 Kms.). The service was described as Mofussil service/Stage carriage. Against column 5 of Schedule II it was stated that "the following number of round trips are proposed to be operated to the complete exclusion of all other persons holding stage carriage permits on the proposed route and such other persons holding stage carriage permits on the routes overlapping completely or partially on the proposed route except to the extent specified in the note hereunder."

5. Similarly, under Scheme 2 the route was K.R. Market to Pedavadlapuri, in Krishna District (via PNBS, Krishnalanka, Fire Station, Kanakadurga Varadhi, Vijayawada Club, Sundaraiah Nagar X Roads, Vaddeswaram X Roads, Atmakur X Roads, Mangalagiri (19.5. km.).

6. In Scheme 3 the route notified was described as Vijayawada Municipal Corporation Office to Kundavari Kandrika, (via K.R. Market, Chittinagar, Milk Project, Pamula Kaluva, Nynavaram (16 kms.).

7. It was stated under each of the aforementioned Schemes that proposal shall not affect : (1) The State Transport Undertakings; and (2) The Services operated by the Devasthanams.

8. In pursuance of the aforementioned notification the appellants filed objections addressed to the Secretary, Transport, Roads and Buildings Department, Government of Andhra Pradesh. The said objections were taken up for hearing before the Minister (Transport) on 20.1.2000 along with objections filed by other operators who are not parties in the appeals. The Minister by order dated 25.1.2000 disposed of the objections relating to Scheme No. 1 of 1999 and 2 of 1999 on the following terms :

"I have examined the above points carefully. The objections do not merit any consideration. After due consideration of all issues. Since the route length of draft Scheme No. 1/99 is 19.5 kms. And that of draft scheme No. 2/99 is also 19.5 kms. and the (via) places are common in both cases, there is no purpose in approving both schemes which relates to identical routes. Hence, draft scheme No. 1/99 is dropped."

9. Similarly, in respect of draft Scheme No. 2/99 and 3/99 the Minister by separate but identical orders (both dated 25.1.2000) disposed of the objections in the following terms :

"I have carefully considered the draft scheme proposal keeping in view the provisions of Law including Section 99 of M.V. Act and Section 100(2) of M.V. Act, 1988, the various facts and materials placed before me, arguments advanced during hearing and the principles of natural justice. I am satisfied that the draft scheme proposal provides for an efficient, adequate, economical and properly coordinated road transport services and is in public interest. I therefore, overrule all the objections and approve the scheme under Section 100(2) of M.V. Act, 1988 subject to the conditions indicated below :-

Note : Scheme shall not affect :

1. The State Transport Undertakings;

2. The services operated by the Devasthanams."

10. Feeling aggrieved by the orders passed by the Minister approving the scheme notified the appellants who were holding permanent stage carriage permits of routes overlapping notified routes faced with consequential cancellation of their permits filed the writ petitions challenging the notification issued by the Government. The main ground which was pressed into in respect of the writ petitioners was that the appellants who were objectors were not granted due opportunity of hearing before the Minister finalised the matter. The other ground urged on behalf of the writ petitioners was alleged violation of their fundamental right to carry trade and business guaranteed under Article 19(1)(g) of the Constitution.

11. The High Court rejected both the contentions. In para 8 of the judgment the High Court noted that the most serious contention advanced on behalf of the petitioners was that the schemes were approved without affording any opportunity to them and hence it was violative of the mandatory provisions of Section 100 of the Act. Discussing the said contention the High Court in para 10 of the judgment observed that admittedly the petitioners have received notice fixing the hearing on 18.1.2000; if the petitioners did not attend on that day it is for them to find out the next date of hearing and not for the respondent to serve notice again. From the above it is clear that the petitioners did not avail the opportunity of being heard and hence there is no merit in the present complaint.

12. Next the High Court took up the objections on merit in para 11 of the judgment. Referring to the objections filed by the petitioners in writ petition No. 1546/2000 to the effect that the objectors had been running the buses on losses due to bad road conditions now that the road conditions have improved and they were recovering the lossess they had already suffered the nationalisation of the routes was requested to be postponed by 3 or 4 years the High Court rejected, and in our view rightly, the said objection as devoid of merit.

13. Thereafter the High Court considered the contention raised against cancellation of the permits held by them referred to in Section 103 of the Act. The High Court observed that the Regional Transport Authority who has granted the permit has the right under the statute to cancel the existing permits or to direct the permit holders to stop plying and surrender their permits; therefore, no exception could be taken to the orders passed by the RTA in that regard. In rest of the judgment the High Court also took into consideration certain other conditions raised on behalf of the petitioners against the nationalisation scheme and rejected them as devoid of any merit.

14. The main thrust of the arguments of Shri P.S. Misra and Shri M.N. Rao, learned senior Counsel appearing for the appellants was that the right to file objections and to have due opportunity to place the same before the authority hearing the objections was a fundamental right vested in the objectors under the statute. In the present case though the matter was posted on different dates for hearing on the objections filed by the appellants the matter was not taken up for different reasons and the matter was finalised on 20th January, 2000 without giving due opportunity of hearing to the appellants.

15. Per contra Shri L.N. Rao, learned senior Counsel appearing for the respondents contended that records reveal that adequate opportunity of hearing was granted to the appellants to place their case before the Minister before he passed the order approving the notified schemes. Shri Rao further contended that the appellants have mainly raised the objection of loss suffered by them due to bad condition of roads; the situation had improved subsequently after better road conditions were provided and the appellants were gradually making up the losses which they had suffered earlier; in these circumstances the appellants requested for postponement of nationalisation of the routes. This objection according to Shri Rao was wholly irrelevant under the statute, and therefore, no exception can be taken to the order passed by the Minister rejecting the objections raised by the appellants. In the circumstances the High Court rightly dismissed the writ petitions filed by the appellants.

16. Before considering the merits of the contentions raised on behalf of the appellants it will be convenient to refer to the statutory provisions relevant for the purpose.

17. Chapter VI of the Act contains special provisions relevant to the State Transport Undertakings. The provisions of the Chapter and the Rules and Orders made thereunder have been given overriding effect notwithstanding anything inconsistent therewith contained in chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law.

18. Section 99 deals with preparation and publication of proposal regarding road transport service of a State Transport Undertakings. The said section is quoted hereunder :-

"99. Preparation and publication of proposal regarding road transport service of a State Transport Undertaking :-

(1) Where any State Government is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated 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 route 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 Government may formulate a proposal regarding a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and other relevant particulars respecting thereto and shall publish such proposal in the Official Gazette of the State formulating such proposal and in not less than one newspaper in the original language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deem fit.

(2) Notwithstanding anything contained in sub-section (1), when a proposal is published under that sub-section, then from the date of publication of such proposal, no permit shall be granted to any person, except a temporary permit during the pendency of the proposal and such temporary permit shall be valid only for a period of one year from the date of its issue or till the date of final publication of the scheme under Section 100, whichever is earlier."

19. Section 100 which contains the provisions regarding objections to the proposal and its disposal is quoted hereunder :-

"100. Objection to the proposal. - (1) On the publication of any proposal regarding a scheme in the Official Gazette and in not less than one newspaper in the regional language circulating in the area or route which is to be covered by such proposal any person 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 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 such proposal.

(3) The scheme relating to the proposal as approved or modified under Sub-section (2) shall then be published in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and thereupon become final on the date of its publication in the Official Gazette 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 the previous approval of the Central Government.

(4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under sub-section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under sub-section (1), the proposal shall be deemed to have lapsed.

20. The pari materia provisions of Sections 99 and 100 of the Motor Vehicles Act, 1988 (new Act) are Sections 68-C and 68-D (old Act) which are quoted hereunder :

"68-C. Preparation and publication of scheme of road transport service of a State Transport Undertaking. - Where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the pubic interest that road transport services in general or any particular class of such service in relation to any area or route 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 Undertaking may prepare a scheme giving particulars of the nature of the service 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.

68-D. Objection to the Scheme. - (1) On the publication of any scheme in the Official Gazette and not less than one newspaper in regional language circulating in the area or route which is proposed to be covered by such scheme -

(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 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 out 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."

21. From the provisions in Section 99(1) it is clear that the State Government is mandated to form an 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 in particular class of such services in relation to any area or route or operation thereof should be run and operated by the State Transport Undertaking whether to the exclusion complete or partial of other persons or otherwise before publishing the proposal in the Official Gazette and in local newspapers. In sub-section (1) of Section 100 it is provided that on the publication of any proposal regarding a scheme in the Official Gazette and in newspapers any person may file objections to it before the State Government within 30 days from the date of its publication in the Official Gazette.

22. In sub-section (2) a provision is made that the State Government may, after considering the objections and after giving an opportunity to the 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 proposal.

23. On reading the aforementioned statutory provisions together it is clear that the objection which may be raised by any person to the proposed nationalisation scheme must relate to the matters about which the State Government is required to form an opinion under the Statute i.e. for the purpose of providing an efficient, adequate, economical and proper transport service. It is necessary in the public interest that the road transport services on the routes should be run and operated by the State Transport Undertakings to the complete or partial exclusion of other persons. Therefore, it follows that the objection to be filed by an objector should be related to only these relevant factors and he is not entitled to raise any other objection which is irrelevant and extraneous to the provisions of the statute.

24. In this connection we would like to notice the observations of a Constitution Bench of this Court in Smt. Saraswati Devi and others v. State of Uttar Pradesh and others, 1980(4) SCC 738, wherein it was observed :

"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 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 68-C and, would therefore, be inadmissible."

25. Judged in the light of the statutory provisions and the principles laid down by the aforementioned Constitution Bench the position is inescapable that the main contention raised by the appellants that in view of the loss suffered by them in operating the services under the permits granted to them the proposed nationalisation scheme should be postponed, was clearly outside the scope of considerations under the statute, and, therefore, extraneous and irrelevant.

26. The position is well settled that no private operator can operate his service on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. A Constitution Bench of this Court in the case of Adarsh Travels Bus Service and another v. State of U.P. and others, 1985(4) SCC 557 construing the provisions of Section 68- C, 68-D(iii) and 68-EF, which are pari materia to Sections 99, 100 and 104 of the Motor Vehicles Act, 1988, held :

"A careful and diligent perusal of Section 68-C, Section 68-D(3) and Section 68-FF in the light of the definition of the expression "route" in Section 2(28-A) appears to make it manifestly clear that once a scheme is published under Section 68-D in relation to any area or route or portion thereof, whether not to the exclusion, complete or partial of other persons or otherwise, no person other than the State Transport Undertaking may operate on the notified area or notified route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit as originally granted to him covered the notified route or area."

xxx xxx xxx

"The question is one of weighing in the balance the advantages conferred on the public by the nationalisation of the route C-D against the inconveniences suffered by the public wanting to travel straight from A to B. On the other hand it is quite well known that under the guise of the so-called "corridor restrictions" permits over longer routes which cover shorter notified routes or 'overlapping' parts of notified routes are more often than not misutilised since it is well nigh impossible to keep a proper check at every point of the route. It is well known that often times permits for plying stage carriages from a point a short distance beyond one terminus to a point a short distance beyond another terminus of a notified route have been applied for and granted subject to the so-called "corridor restrictions" which are but mere ruses or traps to obtain permits and to frustrate the scheme. If indeed there is any need for protecting the travelling public from inconvenience as suggested by the learned Counsel we have no doubt that the State Transport Undertaking and the Government will make a sufficient provision in the scheme itself to avoid inconvenience being caused to the travelling public."

27. This Court in Anwar v. First Additional District Judge, Bulandshahr and others, 1986(4) SCC 21 considered the question of maintainability of a statute challenging the order passed under Chapter IV-A of the Act of 1939 observed :

"It is no doubt true that there is no express provision in the Act taking away the jurisdiction of the civil courts to try a suit in which the validity of the proceedings under Chapter IV-A of the Act is called in question. But we are of opinion that the jurisdiction of the civil Courts is impliedly barred from entertaining suits of the present nature. The jurisdiction of the State Government (the Hearing Authority under Section 68-D of the Act) is exclusive in character and it is not open to a civil court to issue an order of injunction restraining the Hearing Authority from proceeding with the hearing of the case and exercising its statutory functions. Whenever statute uses the expression that a decision of an authority shall be final, the jurisdiction of a civil court to go into the correctness or otherwise of the decision is taken away."

28. This Court in Gajraj Singh and others v. State of U.P. and others, 2001(5) SCC 762 construing the scope and admit of Section 68-D of 1939 Act and Section 100 of the 1988 Act made the following observations :-

"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 old Act, being not inconsistent with the successor 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 puplic 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 operating 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 a valuable right of hearing on the objections which were already before the competent authority."

29. We have perused the records which have been filed by the learned Counsel for the respondent and we are satisfied that adequate opportunity was given to the objectors-appellants to place their case before the Minister. The question whether the appellants were granted due opportunity of hearing before the Minister is essentially a question of fact on which the High Court had held against the writ petitioners. Ordinarily this Court does not interfere with findings of fact recorded by the High Court.

30. Testing the case on hand in the light of the principles laid down in the aforementioned decided cases we have no hesitation to hold that in the particular facts and circumstances of the case the High Court rightly dismissed the writ petitions as devoid of merit and its judgment is unassailable.

31. Accordingly, these appeals being devoid of merit are dismissed with costs. Hearing fee is assessed at Rs. 20,000/-.

Appeals dismissed.