IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21/03/2003 CORAM THE HON'BLE MR.JUSTICE E.PADMANABHAN WRIT PETITION NO.15920 of 1995 WRIT PETITION NOS. 15922 of 1995, 15983, 15986, 10854, 10862, 10864, 10865, 10875, 10876, 10880, 11238, 11239, 11368, 11369, 11370 , 11557, 12152, 12921, 13084, 13085, 11410, 11411, 11412, 13364, 13365, 13366, 13373 to 13375, 13382, 13383, 13509, 13573, 13574, 1334, 13335, 16363 to 16366, 16459, 17371, 17372, 17408, 17409, 17410,14139, 14308 to 14310, 15915, 17480, 17504 to 17508, 16861 of 1995 & 3358 of 1996 & 1234, 4636, 1380, and 9685 of 1998 and W.M.P.Nos:25431, 25433, 25435, 25437, 7436, 7439/97 & 17252/95, 52552 , 52089/2002, 17261, 17265, 17282, 17284, 170288, 17836, 17838/1995, 18045, 18047, 18049, 18351/1995, 19366, 65866/1996, 20701, 20982 20984, 21447, 21455, 21456, 21469, 21661, 21749, 21751, 25991, 25993, 25995, 25997/1995, 11855 to 11858/1997 27495, 27497, 22505, 22766, 22768 , 22770, 25304, 25322, 25324, 25326/1995, 4729, 4730, 4731/97, 5400/96, 20602, 7093/98 and 15379/95. W.P.No:15920/95 Sri Lakshmi Saraswathi Bus Service Teachers' Colony, Erode. ..Petitioner -Vs- 1. The Government of Tamil Nadu rep. by the Secretary Home (Tansport Dept.,) Secretariat, Chennai-9 2. The Regional Transport Authority, Periyar District., Erode. 3. Jeeva Transport Corporation Ltd., rep. by its Managing Director Chennimalai Road, Erode 738 002 ..Respondents
!For petitioners:
Mr.S.Varadachachi :: WP.Nos:15983 to 15986, 15920
to 15922/95
Mr.M.Krishnappan :: W.P.Nos:10854, 11410, 11411 and 11412/95
Mr.S.C.Palanisamy :: W.P.Nos:10862, 10864, 10865,
10875, 10876, 10880, 13364,
13365, 13366, 13373, 13383,
17480, 13334 , 1335, 13374,
13375, 13382, 17504, 17505,
17506, 17507 and 17508/95
Mrs.S.Radhagopalan :: W.P.Nos:11238,16861 & 11557/95
Mr.R.S.Ramanujam :: W.P.Nos:11368 to 11370, 13084,
17408, 17409 and 17410/95
Mr.N.Gopalakrishnan:: W.P.Nos:12152, 17371, 17372/95
Mr.C.R.Krishnamoorthy W.P.Nos:11239/95, 6114/98,
13573, 13574 , 16459, 14308 to
14310/95 and 6086 of 1998
Mr.K.M.Venugopal :: W.P.Nos:13509/95, 15915/95
Mr.R.Neatesan :: W.P.Nos:16363 to 16366 of 1995
Mr.V.Lakshminarayan:: appearing in person
(WP3358/96)
Mr.K.Hariharan :: W.P.Nos:1234, 4636/98 &
9685/95
Ms.P.Vedavalli :: W.P.1380/98
Mr.M.Palani :: for implead petitioners’
^For Respondents: :: In all the Writ Petitions
Mr.N.R.Chandran,
Advocate General assisted by
Mr.Sanjay Ramasami
Petitions filed under Article 226 of The Constitution of India praying
for the issue of a writ of Certiorari as stated therein.
:C O M M O N O R D E R
This batch of Sixty Four writ petitions were ordered to be
consolidated by the orders of the Hon’ble Chief Justice and they were taken up
together. With the consent of counsel for the petitioner in each of the writ
petition and the respondents in each of the writ petition, the writ petitions
were taken up for final disposal. The counsel appearing in each of the writ
petition and the Learned Advocate General appearing for the respondents made
common submissions. It is stated by the counsel for the petitioners that
points raised in these writ petitions are common and they could be considered
together excepting a small difference, which may not have a bearing in respect
of the ultimate orders that may be passed in this batch of writ petitions.
2. In W.P.Nos:15920 to 15922, 15983, 15984, 15985, 15986, 16861 of 1
995, the petitioners have prayed for the issue of a writ of certiorari to call
for the records of the first respondent in G.O.Ms.No: 749, Home (Transport)
dated 23.5.1995 and published in Tamil Nadu Government Gazette (Extraordinary)
No.268 dated 24.5.1995 relating to the revenue District of Erode and quash the
same and pass such further or other orders as this court deems fit.
3. In W.P.Nos:10854, 10862, 10864, 10865, 10875, 10876, 10880, 11239
, 11557 of 1995, the petitioners have prayed for the issue of a writ of
certiorari to call for the records of the first respondent in G. O.Ms.No:
742, Home (Transport-III) dated 24.5.1995 and published in Tamil Nadu
Government Gazette No.469, dated 24.5.1995 relating to the revenue District of
Vellore and quash the same and pass such further or other orders as this court
deems fit.
4. In W.P.Nos: 11238, 12152 of 1995, the petitioners have prayed for
the issue of a writ of certiorari to call for the records of the first
respondent in G.O.Ms.No: 743 and 744, Home (Transport-III) dated 23.5.1995
and published in Tamil Nadu Government Gazette, dated 24.5 .1995 relating to
the revenue Districts of Tiruvannamalai and Villupuram and quash the same and
pass such further or other orders as this court deems fit.
5. In W.P.Nos:11368, 11369, 11370, 13084, 13085, 13364, 13383, 143
08, 14310, 16363, 16364, 16365, 16366, 16459, 17408, 17409, 17480 of 1995, the
petitioners have prayed for the issue of a writ of certiorari to call for the
records of the first respondent in G.O.Ms.No: 74 7, Home (Transport-III)
dated 23.5.1995 and published in Tamil Nadu Government Gazette, dated
24.5.1995 relating to the revenue District of Salem and quash the same and
pass such further or other orders as this court deems fit.
6. In W.P.Nos:12921, 13509, 15915, 13598 of 1995, the petitioners
have prayed for the issue of a writ of certiorari to call for the records of
the first respondent in G.O.Ms.No: 750, Home (Transport-III) dated 23.5.1995
and published in Tamil Nadu Government Gazette, dated 24.5.1995 relating to
the revenue District of Madurai and quash the same and pass such further or
other orders as this court deems fit.
7. In W.P.Nos: 13573, 13574 of 1995, the petitioners have prayed for
the issue of a writ of certiorari to call for the records of the first
respondent in G.O.Ms.No: 7, Home (Transport-III) dated 23.5.1995 and
published in Tamil Nadu Government Gazette No.458, dated 24.5.199 5 relating
to the revenue District of Virudhunagar and quash the same and pass such
further or other orders as this court deems fit.
8. In W.P.Nos: 14139, of 1995, the petitioners have prayed for the
issue of a writ of certiorari to call for the records of the first respondent
in G.O.Ms.No: 756, Home (Transport-III) dated 24.5.1995 and published in
Tamil Nadu Government Gazette, dated 24.5.1995 relating to the revenue
District of Sivaganga and quash the same and pass such further or other orders
as this court deems fit.
9. In W.P.Nos:17371, 17372/95 1234/98, 4636/98 the petitioners have
prayed for the issue of a writ of certiorari to call for the records of the
first respondent in G.O.Ms.No: 746, Home (Transport-III) dated 23.5.1995 and
published in Tamil Nadu Government Gazette No.469, dated 24.5.1995 relating to
the revenue District of Dharmapuri and quash the same and pass such further or
other orders as this court deems fit.
10. In W.P.No:3358 of 1996 the petitioner has prayed for the issue of
a writ of certiorari to call for the records of the first respondent in
G.O.Ms.No: 748, Home (Transport-III) dated 23.5.1995 and published in Tamil
Nadu Government Gazette NO.268, dated 24.5.1995 relating to the revenue
District of Coimbatiore and quash the same and pass such further or other
orders as this court deems fit.
11. In W.P.No: 1380 of 1998 the petitioner has prayed for the issue
of a writ of certiorari to call for the records of the first respondent in
G.O.Ms.No: 746, Home (Transport-III) dated 23.5.1995 and published in Tamil
Nadu Government Gazette NO.268, dated 24.5.1995 and quash the same in so far
as it affects the petitoenrs inter-state route Bangalore to Tirupathur and
pass such further or other orders as this court deems fit.
12. In W.P.No:13374 and 13375 of 1995 the petitioner has prayed for
the issue of a writ of certiorari calling for the records of the State
Transport Appellate Tribunal, Madras made in Appeal NO.882 of 1984 dated
22.12.1994 confirming the order of the Regional Transport Authority, Periyar
District at Erode made in R.No.54236/A2/84 dated 6.11.1984, to quash the same
as illegal and pass such further orders.
13. In W.P.No: 13375 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.417 of 1984 dated 9 .3.1995
confirming the order of the Regional Transport Authority, Periyar District at
Erode made in R.No.20227/A3/92 dated 26.3.1993, to quash the same as illegal
and pass such further orders.
14. In W.P.No: 13382 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.803 of 1993 dated 4.4.1995
confirming the order of the Regional Transport Authority, Salem District at
Erode made in R.No.42689/B1/93 dated 22.11.1993, to quash the same as illegal
and pass such further orders.
15. In W.P.No: 13365 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.642 of 1993 dated 2 2.5.1995
confirming the order of the Regional Transport Authority, Namakkal, Salem
District made in R.No.108885/C1/92 Item No.1/3-8-1993 to quash the same as
illegal and pass such further orders.
16. In W.P.No: 13366 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.641 of 1984 dated 22.5.1995
confirming the order of the Regional Transport Authority, Namakkal, Salem
District made in R.No.10884/C1/92, Item No.2/3-9-93, to quash the same as
illegal and pass such further orders.
17. In W.P.No: 13366 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.641 of 1984 dated 2 2.5.1995
confirming the order of the Regional Transport Authority, Namakkal, Salem
District made in R.No.10884/C1/92, Item No.2/3-9-93, to quash the same as
illegal and pass such further orders.
18. In W.P.No: 13334 of 1995 the petitioner has prayed for the issue
o!f a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.661 of 1991 dated 7.4.1995
confirming the order of the Regional Transport Authority, Namakkal, Salem
District made in R.No.9717/A3/93, dated 13.9.1993 to quash the same as illegal
Aand pass such further orders.
19. In W.P.No: 13335 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.663 of 1993 dated 2 4.2.1995
confirming the order of the Regional Transport Authority, Periyar District at
Erode made in R.No.6458/A3/93, dated 13.9.1993 to quash the same as illegal
and pass such further orders.
20. In W.P.No: 17410 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.386 of 1994 dated 1 9.7.1995
confirming the order of the Regional Transport Authority, Namakkal, Salem
District made in R.No.70163/A2/93, dated 23.8.1994 to quash the same as
illegal and pass such further orders.
21. In W.P.No: 17504 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.294 of 1993 dated 9 .3.1995
confirming the order of the Regional Transport Authority, Periyar District
made in R.No.64395/B3/92, dated 17.3.1993 to quash the same as illegal and
pass such further orders.
22. In W.P.No: 17505 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.48 of 1994 dated 22.5.1995
confirming the order of the Regional Transport Authority, Periyar District
made in R.No.3167/B2/92, dated 30.11.1993 to quash the same as illegal and
pass such further orders.
23. In W.P.No: 17506 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.40 of 1994 dated 7.4 .1995
confirming the order of the Regional Transport Authority, Periyar District
made in R.No.10078/B3/93, dated 30.11.1993 to quash the same as illegal and
pass such further orders.
^
24. In W.P.No: 17507 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.27 of 1994 dated 22.5.1995
confirming the order of the Regional Transport Authority, Periyar District
made in R.No.10078/B3/92, dated 30.11.1993 to quash the same as illegal and
pass such further orders.
25. In W.P.No: 17508 of 1995 the petitioner has prayed for the issue
of a writ of certiorari calling for the records of the State Transport
Appellate Tribunal, Madras made in Appeal NO.377 of 1993 dated 10 .4.1995
confirming the order of the Regional Transport Authority, Salem District made
in R.No.B1/18020/74, dated 8.4.1993 to quash the same as illegal and pass such
further orders.
26. According to the petitioner the first respondent notified the
scheme in respect of stage carriages for the area comprising the revenue
District of Periyar (Erode) under section 99 of the Motor Vehicles Act, 1988
which was published in the Government Gazette dated 27th May 1994 and
published in the local Daily “Dina Malar” on 3.6.19 94. The petitioner filed
objections in writing within time before the Secretary to Government, Home
(Transport) Department. The said Secretary heard the petitioner’s counsel.
The draft scheme has been approved under section 100(2) of the Motor Vehicles
Act, 1988 by G.O. Ms.No.749 Home (Transport III) Department, dated 23.5.1995
and published in Government Gazette dated 24.5.1995. The said approved scheme
as notified affects the petitioner in that not only all the pending
applications for grant were rejected, but also its operations will be
restricted. The approval of the scheme it is stated seriously affects the
petitioner. Hence the present challenge.
27. The petitioner in each of the writ petition challenges various
Notifications approving the scheme and notifying the approved scheme under
section 100 (2) of the Motor Vehicles Act. It is contended that the
respondents have not communicated the reasons for rejecting the objections and
approving the scheme. The failure to communicate the reasons to the objector
vitiates the approval of the scheme. Rule 283(2) of the Motor Vehicles Rules
1989, provides for maintenance of records and communication of the reasons for
overruling the objections and approving the impugned scheme. Despite an
application being made for the grant of the proceedings, the respondent has
not furnished the reasons nor communicated a speaking order passed by the
respondent while rejecting the objections and approving the scheme. It is
impossible for the petitioner to canvass the merit or demerits of the approval
without the respondent communicating a copy of the orders. The proceedings
being quasi judicial, the respondents should have acted fairly and ought not
to have acted with illegality and biased approach, while approving the scheme.
28. Section 99 of the motor Vehicles Act 1988 empowers the State
Government to formulate scheme to be run and operated by State Transport
Undertakings as against the provisions of the 1939 Motor Vehicles Act, which
enabled the State Transport Undertaking to formulate the Scheme.
29. It is contended that the Scheme has not been formulated by the
State Government, but it has been formulated by the Transport Department which
is an illegality. The respondents while approving the scheme by holding a
hearing under section 100 of the Motor Vehicles Act, 1988 is sitting in
judgment over a lis between State Transport Undertakings and Private Operators
which is a quasi judicial and the failure to follow the procedure prescribed
in this respect vitiates the approval.
30. The Motor Vehicles Act, 1988 contemplates formulation of the
Scheme under the Act by the Government, but in the present case such a scheme
has been formulated by the Home Secretary (Transport Department). The Home
Secretary has not been conferred with the power to formulate a draft scheme
and in the absence of any rules, all the draft schemes published lack legal
validity and therefore they cannot be proceeded further The approval of the
scheme by the Home Secretary would amount to his being a Judge of his own
cause and therefore it is violative of principles of natural justice, vitiated
by bias, arbitrary and violative of Art.14.
31. Nextly, it is contended that the area has not been defined or
notified. In the absence of any Notification under the relevant provisions of
The Motor Vehicles Act, the area scheme notified is wholly illegal. The
failure to consider and deal with the objections is fatal to the draft and
approved schemes. There is no warrant at all to frame a area scheme. In an
area scheme grant of permit to private operator is prohibited and no
preference could be shown in favour of a State Transport Undertaking which is
not operating on the route. Such scheme cannot be considered as one framed to
secure efficient, economic and properly coordinated road transport service.
32. It is contended that vast difference or discrepancy between the
maximum and minimum number of stage carriages proposed or approved to be
operated would be fatal to the scheme as it is not in the interest of the
traveling public. Therefore the scheme is liable to be struck down. The
approval of the scheme is discriminatory as it does not eliminate all private
operators in the scheme area. The provisions to permit existing private
operators on the area and did not permit the others is discriminatory and
violative of Art.14. Either private operators should be allowed or should be
excluded totally. To permit the existing private operators alone to operate
would be perpetuating their monopoly in the area.
33. The Motor Vehicles Act, 1988 and the Rules framed thereunder has
set out liberal policy with respect to stage carriage operation both by
private operators and State Undertaking and therefore it is arbitrary to
exclude or eliminate fresh grant or permits to private operators. The
proposed and approved area scheme has affected by taking away the fundamental
rights of a citizen and therefore it is liable to be declared as
unconstitutional. The scheme approved by the Secretary, Home (Transport)
Department, are not placed on the floor of the Legislative Assembly, nor it is
subjected to direct voting of the Legislature and this is contrary to the
constitutional guarantee. Further in any event there is total non application
of mind by the respondents as the respondents have not applied its mind to
find out whether the scheme would achieve the purpose, whether it would be
economic or efficient or whether there could be guaranteed operation and this
failure vitiates the approved schemes. The State Transport Undertakings have
already sustained huge loss as it is uneconomic for them to operate at high
cost and therefore it is not in public interest. There is complete lack of
coordination and this also vitiates the proposal as well as approval of the
schemes.
34. In all the writ petitions, the above are the common averments set
out in the supporting affidavits and the respondents have filed a common
counter affidavit. The batch of writ petitions have been filed challenging
the District-wise area scheme for operation of stage carriages by the State
Transport Undertakings by various Notifications published in the Gazette. The
Government announced its policy of Nationalisation. According to the policy
the entire Passenger Transport services would be nationalised. The Tamil Nadu
Stage Carriages Contract Carriages (Acquisition) Act, 1973 was passed to
achieve the said object. The said enactments were challenged. The High Court
declared it unconstitutional. But the Apex Court reversed the judgement of
the High Court and declared it valid. After 1976 there was a change in the
policy of nationalisation and small operators who were already operating in
the field for a long time were allowed to run their services in public
interest. The Tamil Nadu Stage Carriages and Contract Carriages (Acquisition)
Amendment Act, 1984 was introduced exempting small bus operators holding five
or less stage carriage permits from the provisions of the said Act. The Apex
Court during 1987 held that private operators other than those who were
specifically permitted to operate while approving the scheme, could not
operate their buses either on the notified routes or on the routes which
overlap notified routes. In order to protect the small operators and to
continue their services, the Tamil Nadu Motor Vehicles (Special Provisions)
Act, 1987 was passed by the State Legislature on 13.11.198 7. As seen from
the provisions of the said special enactment the State Government decided to
allow private operators existing and operators for the period from 4.6.1976
and 30.6.1990 to continue the services in the existing rules in public
interest. The existing private operators in the approved scheme routes alone
were allowed to continue their limited operation.
35. Chapter V of the Motor Vehicles Act, 1988 enables for
liberalisation of Private Sector for operation of road transport service.
Chapter VI of the Act specifically provides for operation of bus transport
services by the State Transport Undertakings either to the complete or partial
exclusion of others. The State could notify the schemes for operation of such
carriages by State Transport Undertakings and restrict the grant of permit to
other persons in respect of the notified areas under the provisions of the
said Chapter. To maintain efficient, adequate, economical and properly
coordinated road transport services the Government in the interest of the
public notified the State Transport undertakings in the Districts in addition
to the existing private stage carriage operators protected under the Tamil
Nadu Motor Vehicles (Special Provisions) Act, 1992, State Transport
Undertakings of other States and the stage carriage operators operating on
inter state routes whose permits are covered by inter state agreements. The
State Transport Undertakings are running many services in uneconomical sectors
and unserved areas as well. As a social welfare measure of the school going
children are allowed to travel in the City and Town Routes on concessional
fares. Free Transport facility is allowed to the blind.
36. Under Section 99 of the Motor Vehicles Act, 1988 Government
formulated the District wise draft area scheme for operation of stage
carriages road transport services by State Transport Undertakings and the same
was published in the Government Gazette on 27.5.1994 by following the relevant
provisions of the Motor Vehicles Act and the Tamil Nadu Motor Vehicles Rules
1989. The proposal was considered and formulated up to the level of Chief
Minister based on the policy adopted by the Government. The Secretary to
Government did not formulate the proposal.
37. According to Rule 12(1) of The Tamil Nadu Government Business
Rules every order or instrument of the Government shall be signed either by
the Secretary or by Additional Secretary or Joint Secretary or Deputy
Secretary or under Secretary. By virtue of the said Rules the very draft area
scheme formulated by the Government under Section 99 of the Act was signed by
the Secretary to Government on behalf of the Government. The Government Rules
have not been amended authorising the Secretary to Government to formulate the
Draft area scheme under Section 99 of the Motor Vehicles Act, 1988.
38. According to Section 100(2) of the Motor Vehicles Act, the State
Government after considering the objections and after affording opportunity to
the Objectors or his representatives and the representatives of the State
Transport Undertakings to be heard in the matter, approve or modify such
proposal. In terms of Section 102(1) of the Motor Vehicles Act, 1988 the
State Government may at any time if it considers necessary modify or cancel
any approved scheme after giving notice to State Transport Undertakings and
any other person who is likely to be affected by the proposed modification and
cancellation.
39. To comply with Section 100(2) of the Act the representatives of
the State Transport Undertakings, objectors and other authorised agents are
required to be heard by the Authority empowered by the Government by their
Rules of Business. In terms of Business Rules the hearing was by the
Secretary to Government and under Section 97 of the Motor Vehicles Act the
powers and and functions which the State Government may exercise and perform
under Section 100 and 102 of the Act and the Rules relating to shall be
exercised and performed by the Secretary to the State Government in the Home
Department and cases relating to such powers and functions of the State
Government under Section 100 0and 102 and the Rules need not be submitted to
the Minister in charge. The objections including the objections received even
after one month from the date of publication of the draft area scheme and the
counter statements the State Transport Undertakings or other authorities have
been considered and objections were heard in person under Rule 24 of the
Business Rules in compliance with the statutory requirement under section
100(2) of the Act by the Secretary to Government in the Home Department.
Thereafter the draft scheme was approved to the complete exclusion of other
persons other than State Transport Undertakings of other States and the
existing permits of small operators as provided in the Tamil Nadu Motor
Vehicles ( Special Provisions) Act, 1992 and permits of such carriage
operators operating on interstate routes whose permits are covered by the
inter state agreements.
40. For the following twenty Districts schemes were approved and
published in the Government Gazette on 24.5.1995:-
(1) Chengalpattu,
(2) North Arcot,
(3) Thiruvanamalai
(4) Villupuram,
(5) South Arcot
(6) Dharmapuri,
(7) Salem,
(8) Coimbatore
(9) Periyar
(10)Madurai,
(11)Dindigul
(12)Trichirappalli,
(13)Nagapattinam
(14)Thanjavur
(15)Pudukottai,
(16)Ramanathapuram
(17)Virudhunagar
(18)Chidambaranar
(19)Tuticorin and
(20)Tirunelveli.
41. The above Notification was also published in local Newspapers in
regional language having circulation in the area to be covered by such scheme.
There is no official bias and the principles of natural justice has been
followed and it has not been offended in any way, on the approval given to the
draft scheme by the Secretary to Government in the Home Department.
42. The contention that there is no application of mind by the
authority concerned is untenable and actually incorrect. The contention that
the objections advanced at the time of personal hearing have not been
considered by the appellate authority and the authority failed to assign any
reason for turning down the claim, it is contended that there are no merits in
such a contention. The entire objections have been taken into consideration
as well as their arguments of the respective counsel. A detailed speaking
order to the defence raised in the objection have been passed. In the hearing
the objectors as well as the contention of State Transport Undertakings and
the contention of the aggrieved were heard and overruled. The draft scheme
has been approved after detailed consideration and taking into consideration
of the entire facts and the relevant materials. In terms of Sub Rule (2) of
Rule 283 of the Tamil Nadu Rules 1989 record of hearing of proceedings was
compiled under Rule 284 as soon as the record of proceedings was completed.
The Scheme was approved and published in the Government Gazette. There is no
provision in the Act or the Rules to furnish copy of the proceedings of the
hearing and the decision or speaking order passed by the Home Secretary while
considering the objections. The construction placed on expression “route and
area” are incorrect. In terms of Section 99 of the Motor Vehicles Act 1988
the State Government may formulate the proposal regarding a Scheme giving
particulars and nature of services proposed and all other relevant particulars
relating thereto. In the draft scheme itself the area of operation of buses
has been specifically defined as the area comprising the entire revenue
district concerned and no separate notification is required in this respect as
sought to be contended. There is no provision in the Motor Vehicles Act or
the Rules to place the approved scheme on the table of the Legislative
Assembly. The particulars set out in Column (4) and (5) of the approved area
scheme are furnished after assessing the actual need in the interest of the
traveling public and the present trend. So also the maximum number of
vehicles and trips proposed to be performed. The approved scheme is not
violative of Art.14 and 19(1)(g) of the Constitution. The Scheme was
formulated and approved in accordance with the provisions of the Motor
Vehicles Act, 1988 and it is in the interest of the public. It is contended
that there are no merits in all these writ petitions and the same deserve to
be dismissed.
43. Identical counter has been filed in W.P.Nos.10854 to 10865 of 1
995 etc., batch.
44. The learned counsel Mr.S.Varadhachari made his submissions on
behalf of the petitioners and his contentions have been adopted by the other
counsel excepting their reiterating the contentions and basis of those
contentions. Per contra, the learned Advocate General appearing for the
respondents contended that there is no illegality in the procedure adopted,
proposal of the scheme, notification of the scheme, hearing and approval of
the scheme. It is also contended that the various contentions advanced by the
petitioners are devoid of merits and untenable as well as unsustainable both
in law and on facts.
45. The petitioners have also filed a reply to the counter affidavit,
but it is not necessary to refer to the same.
46. The learned counsel for the petitioners submitted the details of
area scheme and drew the attention of the court to Chapter VI of The Motor
Vehicles Act and advanced various contentions and submitted arguments, which
will be considered at the relevant time.
47. Mr.S.C.Palanisami, learned counsel appearing for few of the writ
petitioners categorized the writ petitions as hereunder:-
(i) Where the area scheme has been approved, but stayed, operators
are plying their vehicles and the details of the writ petitions are:
(1)10862, 10864, 10865, 10875, 10876 and 10880 of 1995.
(ii) Writ Petitions challenging the area scheme are: 13364, 13366,
1 3373, 13383 and 17480 of 1995.
(iii)Writ Petitions challenging the Order of the Regional Transport
Authority who has rejected grant of permit on the ground of area scheme and
confirmed by the State Transport Appellate Tribunal are: 13 334, 13335,
13365, 13374, 13375 13382, 17504 to 17508 of 1995.
48. Mr.S.C.Palanisamy, learned counsel also adopted the arguments
advanced by the other learned counsel. Though the writ petitions are being
categorised the contentions advanced are identical and they will be taken up
for consideration after referring to the statutory provisions of the Motor
Vehicles Act and the Rules.
49. Before considering the points for consideration it is essential
to refer to statutory provisions of the Motor Vehicles Act, the Rules and few
pronouncements of the Apex Court. Chapter VI of the Motor Vehicles Act, 1988
provides the special provisions relating to State Transport undertakings. The
provisions of Chapter VI has overriding effect. Chapter VI overrides Chapter
V and other laws and it shall have effect notwithstanding anything
inconsistent therewith contained in Chapter V or in any other law for the time
being in force. Section 107 of the Act confers powers on the State Government
to make rules for the purpose of carrying out Chapter VI of the Act. The
rules have also been framed.
50. In Madan Mohan Rao Vs. Union of India, reported in 2002 (6) SCC
348, the Apex Court held that Chapter VI of the Motor Vehicles Act, 1988
contains special provisions relating to the State Transport Undertakings and
previsions of the said Chapter and the Rules and orders made thereunder have
been given overriding effect notwithstanding anything inconsistent therewith
contained in Chapter V or any other law for time being in force or in any
instrument having effect by virtue of any such order or law. Section 99 deals
with preparation and publication of proposed Road Transport Service of State
Undertakings. Section 100 provides for recording objections to the proposal
and its disposal. While considering the said Sections, in Madan Mohan Rao Vs.
Union of India, the Apex Court held thus:-
“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 any 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
nationalization 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.”
51. In the same pronouncement the Apex Court also held that no
private operator can operate his services on any part or portion of notified
area or notified route unless authorised so to do by the terms of the Scheme
itself. While following the Constitution Bench Judgment in Adarsh Travels Bus
Services Vs. State of U.P. (1985 (4) SCC 557), the Supreme Court held thus:-
“7. 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 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. ? The question is one of weighing in the balance the advantages
conferred on the public by the nationalization 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 also 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.”
52. In Gajraj Singh Vs. State of U.P. Reported in 2001(5) SCC 762,
it has been held thus:-
“8. 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 nationalization 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 nationalization 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 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.”
53. As laid down in Madan Mohan Rao’s case, the writ petitions on
hand are to be tested in the light of the principles laid down in the
aforementioned decided cases. When once this court comes to the conclusion
that the respondents have afforded adequate opportunity to the objectors to
place their cases before the authority who conducted the hearing and the said
authority has taken into consideration of the relevant materials while
rejecting the objections, then this court may have to sustain the approved
scheme and consequently reject the contentions advanced in this batch of writ
petitions.
54. Incidentally, it is pointed out that the Supreme Court had
considered the scope of Tamil Nadu Motor Vehicles (Special Provisions) Act,
1992 in Tilakavathy Vs. Regional Transport Authority, Periyar District
reported in 1995 (1) SCC 456 and the legal position in respect of the said
Special enactment is by now well settled.
55. In this batch of writ petitions, the following points arise for
consideration:-
(A) In the absence of a Notification under section 2(1) of the
Motor Vehicles Act defining the area or specifying the area by a Notification,
Whether the respondents could propose and approve a scheme under Chapter VI of
the Act?
(B) Who propsoed the draft scheme?
(C) Whether the hearing conducted by the Secretary to Government (
Home Department) and his overruling the objections and approving the scheme is
vitiated by bias, in that the Home Secretary has proposed the scheme,
conducted the hearing and overruled the objections before approving the
scheme?
(D) Whether the failure to communicate a copy of the proceedings
of the respondents overruling the objections and approving the draft scheme
vitiates the impugned Notification?
(E) Whether the subsequent modification of the approved scheme
renders the scheme inoperative or the scheme ceased and what is the effect of
subsequent modifications?
(F) Whether the vast difference with respect to the minimum and
maximum number of services to be operated vitiates the scheme?
(G) Whether the petitioners in W.P.Nos.10854; 11410; 11411; 11412
of 1992 are entitled to declaration as prayed for?
(H) Whether these writ petitions have become infructuous
consequent to amendment of the approved scheme as contended by the
Respondents?
(I) Whether the writ petitioners who have either failed to raise
objections or raise objections belatedly could maintain writ petitions?
(J) Whether the writ petitions are liable to be dismissed as
belated and petitioners are guilty of latches?
(K) To what relief if any?
56. Mr.Krishnappan, learned counsel appearing for some of the writ
petitioners (W.P.Nos:10854, 11410, 11411 of 11412 of 1995) advanced separate
arguments placing reliance on Tamil Nadu Act 41 of 1992 and contended that
permits granted in favour of the petitioners in those four writ petitions are
same and therefore a declaration has to be granted as prayed for.
POINT – H
57. The learned Advocate General raised a preliminary objection
contending that the approved area scheme has been modified or amended by
another scheme by a subsequent Notification and therefore the present batch of
writ petitions have become infructuous and if at all, the petitioners have to
challenge the modified or approved scheme. The objection raised by the
learned Advocate General though attractive cannot be sustained. The writ
petitions are pending since 1995. The amendment was introduced to the
approved scheme so as to enable the Mini Bus Operators to operate for a
limited distance on the approved scheme. Excepting this amendment the
substratum of the approved scheme remains the same and there is no alteration.
As there is no alteration of the approved scheme in substance, the objection
advanced by the learned Advocate General cannot be sustained.
58. The Learned Advocate General referred to an unreported order of
K.Govindarajan, J., as well as an unreported judgement of M.M. Ismail,J., as
he then was. On a consideration of the judgment of M.M. Ismail,J., this
court is of the considered view that no such dictum has been laid down by the
learned Judge. It is represented that K. Govindarajan,J., disposed of number
of writ petitions on the reasoning that there has been a subsequent amendment
to the scheme and that the individuals have to challenge the scheme as
modified. The learned Judge has passed the following order in W.P.NO: 4047
and 4048 of 1998:-
“2. The learned counsel appearing for the impleading party has now
brought to my notice that the said scheme has been modified by the subsequent
scheme in G.O.Ms.No.1529 Home (I and Part III) dated 17.11.19 99. When the
impugned scheme was modified by the above said scheme, nothing survives in
this writ petition.”
59. The above order appears to have been passed on the premise that
the approved scheme has been modified by a subsequent scheme and therefore
nothing survives in the said writ petitions challenging the original scheme.
In all probability the entire scheme has been replaced by the amended scheme.
This is not the factual position. That apart, I do not find any discussion in
the said order and the order has been passed either based upon consent or on a
joint representation. When the approved scheme has been challenged which is
the subject matter of challenge in the pending writ petitions, such writ
petitions cannot be rendered futile merely there is a minor modification while
the Original area Scheme remains intact and being operative and in force.
60. That apart, the petitioners have challenged the approved scheme
which are being enforced or operative in every respect even as of today. So
the validity of such schemes have to be tested as was approved and notified
and not with reference to the latter negligible modification of the said
scheme. With respect this court holds that the view of K.Govindarajan,J., has
no application to the facts of the case. Hence this court is not persuaded to
sustain the said objection and it is overruled.
61. Moreover, in the case on hand modification of the scheme has been
approved by following the procedure so as to enable the operation of mini
busses, which action is the subject matter of pending Writ Appeals. The
modification of the Scheme ex facie do not show that the original scheme has
been altered or changed, much less, so violently to hold that nothing survives
in view of the modification of the scheme. The entire approved scheme is
intact, excepting a relaxation, which enabled the Mini Bus Operators to be
permitted. In other words the entire approved scheme stands as it is. This
court holds that the writ petitions have not been rendered infructuous by the
modified scheme. The petitioners are not aggrieved by the modification
introduced by the modified scheme. No such contention has been advanced.
Therefore, in the considered view of this court, the writ petitions have not
become infructuous. The petitioners need not challenge the modified scheme
afresh. If such a view is taken whenever there is a modification and even
after such modification the modified scheme remains intact, the very contest
to the scheme will be defeated and the contention advanced and the rights
sought to be advanced may not be decided at all. Hence the objection raised
by the learned Advocate General is overruled. Hence Point (H) is answered
against the respondents
POINT -I
62. Nextly, the learned Advocate General raised another preliminary
objection. It is pointed out by the learned Advocate General that in respect
of the following writ petitions no objections have been filed by the
petitioners and therefore those writ petitions have to be dismissed summarily.
The Writ Petitions in which the writ petitioners have not filed their
objections before the respondent to the proposal are:
1) W.P.No:11239/95
2) W.P.No:11557/95
3) W.P.No:12152/95
4) W.P.No:12921/95
5) W.P.No:13509/95
6) W.P.No:14139/95
7) W.P.No:14310/95
8) W.P.No:15915/95
9) W.P.No:17371/95
10) W.P.No:17372/95
11) W.P.No:17409/95
12) W.P.No:1234/98
13) W.P.No:4636/98
63. According to the learned Advocate General in the above writ
petitions the petitioners have not raised objections and not being objectors,
it is not open to them to challenge the approved scheme. There is merit in
this contention. The petitioners in the above 13 writ petitions not being
objectors cannot challenge the approved scheme by filing writ petitions.
Hence the above thirteen writ petitions are dismissed. This pint is answererd
in favour of the respondents.
POINT – J
64. That apart W.P.Nos:1234 of 1998 and 4636 of 1998 are liable to be
dismissed as the schemes were approved as early as 23.5.1995 and published in
the Gazette on 24.5.1995. But the above writ petitions have been filed after
three long years and they are belated. Thus on the ground on latches also The
Writ Petitions 1234 and 4636 of 1998 are liable to be dismissed. This Point
is also answered in favour of the respondents. The above two writ petitions
are dismissed accordingly.
65. The, common contentions have been raised and the same would be
taken up for consideration for all the 64 writ petitions, though 13 of them
deserve to be dismissed as not being objectors and two of them are deserve to
be rejected in limini on ground of laches. Points (I) and (H) are answered
against the writ petitioners.
66. However, the learned counsels for the petitioners sought to
contend that they are seeking a remedy of declaration which plea also cannot
be sustained as they have not challenged the approved scheme as notified
within a reasonable time and it is not open to them to come forward and
challenge. Once a Scheme is approved and notified, no operation by the
private operators is permissible in the notified areas except in terms of the
Scheme and there is no escape. This legal position is well settled.
67. Mr.S.Varadachari, learned counsel while highlighting the first
point, drew the attention of the court to Section 2(1) of the Act, where area
has been defined as “area”, in relation to any provision of this Act, means
such area as the State Government may, having regard to the requirements of
that provision, specify by Notification in the Official Gazette. According to
Mr.S.Varadachari, learned counsel, if area is not notified by a Notification
in the Official Gazette, in relation to any of the provisions of the Act,
there could be no proposal at all in terms of Chapter VI of the Act.
68. As already pointed out Chapter VI overrides Chapter V and other
laws including other provisions of The Motor Vehicles Act. A perusal of the
proposal and the draft notification would show that the entire District has
been notified as an area and therefore no separate notification is required.
The contention to the contra advanced by Mr.S.Varadachari, learned counsel
cannot be sustained.
69. Section 2(1) is a definition clause and nowhere it is provided in
Section 2 that till an area is notified there could be no proposal at all
under Chapter VI. Assuming for purpose of arguments that an area has not been
notified, that does not mean that there can be no initiation of proposal or
publication of draft scheme or approval proceedings in terms of Chapter VI of
the Act.
70. What has been notified as proposed is an area scheme and such
area being as seen from the Notification is District and therefore it is not
necessary to issue a separate notification notifying the area as defined in
Section 2(10 of the Act. This contention cannot be sustained and it has no
legs to stand. Chapter VI itself, as already pointed out, is a complete Code
which overrides not only Chapter V, but also other provisions of the Act or
any other Act or pronouncement. The consideration of the proposal or
publication of drat notification or final approval of the scheme has to be in
conformity with Chapter VI alone. Therefore, the contention that there is no
notification defining the area or specifying the area is without merits and it
is begging the question itself.
71. In C.P.S.R.M.Service Vs. State of Maharashtra, reported in AIR 1
974 SC 1095, the Apex Court held that it is not necessary for the State
Government to have specified an area by a an independent Notification in the
Official Gazette. The above pronouncement is a complete answer to the
contention and no further discussion is required in this respect. In the said
pronouncement, the Apex Court held thus:-
“15. We do not think that the word “area” occurring in Section 68C
has the same meaning as the word `route’ in the section. When Section 68-C
talks of area or route or part thereof, it is not to be presumed that the
legislature made no distinction between are and route. No doubt, a route must
necessarily run over an area but, for that reason, one cannot equate an area
to be route. An area simpliciter is certainly not a route. Its potentiality
to become a route would not make it a route. A route is an area plus
something more. At any rate, there is no justification for making an
assumption that the legislature, in the context of Section 68-C did not want
to make any distinction between area and route. In Dosa Satyanarayanamurthy’s
case (AIR 196 1 SC 82) Subba RaoJ., observed:
“Under Section 68-C of the Act the scheme may be framed in respect of any area
or a route or a portion of any area of a portion of a route. There is no
inherent inconsistency between an area and a route. The proposed route is
also an area limited to the route proposed. The scheme may as well propose to
operate a Transport service in respect of a new route from point A to point B
and that route would certainly be an area within the meaning of Section 68-C”.
xx xx xx xx xx
17. If, therefore, in respect of a scheme in relation to a route
or routes, it is not necessary that the State Government should make a
notification specifying the route or routes we fail to understand the reason
why the State Government should specify the area by a notification in the
gazette for framing a scheme in relation to an area. In other words, ti is
impossible to understand the rationale behind the distinction why when a
scheme is framed in relation to an area a notification in the gazette
specifying its extent is necessary and why when it is framed in relation to a
route or routes a notification specifying the route or routes is not required.
When Section 68-C says “Where any Sate Transport Undertaking is of opinion
that….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 corporation thereof should be run and operated by the State Transport
Undertaking”, it means, in the context of the present case, that the
Corporation has to form an opinion whether it is necessary in the public
interest that road transport services should be nationalised in relation to
any area or route. We are aware of a plausible construction of the section
which would enable the corporation to form an opinion only as to the necessity
in the public interest of a scheme in relation to an area specified in the
notification by the State Government. But we think, it comports more with the
legislative purpose to hold that the State transport undertaking is invested
with the discretion to select the area in relation to which it will frame the
scheme than to hold that discretion has been vested in the State Government.
18. If, in forming an opinion with respect to the necessity of a
scheme in relation to a route or routes the power of State transport
undertaking and therefore of the corporation, is untrammelled by an outside
authority like the State Government, we fail to see why it cannot form an
opinion as to the necessity of a scheme in relation to any area in the State”.
Hence, the Point (A) is answered against the petitioners.
72. The next two points could be considered together. According to
the petitioners the scheme has been proposed by the Home Secretary(
Transport), Draft Scheme has been notified by the Home Secretary( Transport),
Objections were heard by the Home Secretary(Transport) and he has overruled
the objections and approved the Scheme besides notified the same. Therefore
it is contended by the counsel for the petitioner that the Home Secretary is
interested in the Scheme as the proposer and therefore he is biased. Hence
the approval is biased and illegal.
73. Per contra, in he counter it has been stated that it is the
concerned Transport Minister who proposed the scheme and it went upto the
level of the Chief Minster and therefore it is not the Home Secretary, who
proposed the scheme. Hence the objection or plea or contention as to bias has
no legs to stand.
74. In this respect as a challenge has been made on facts, this court
called upon the learned Advocate General to produce the original files. The
original file was produced before the court by the learned Advocate General.
On a perusal of the file relating to G.O.Ms.No.559 and 578, dated 24.5.1994,
it is seen that the proposal was initiated at the instance of the Government
as seen from the approval of the proposal by the then Transport Minister on
8.4.1994 and that of the Chief Minister dated 9.5.1994. The proposals
emanated from the Government and thereafter the proposal was published by the
Home Secretary on 24.5.1994 in respect of as many as 20 area draft schemes.
The file produced by the Learned Advocate General demolishes the very basis of
the contention advanced by the counsel for the petitioners. Therefore it is
clear that it is not the Home Secretary who proposed, but it is the State
Government and the concerned Transport Minister and the Chief Minister and the
Cabinet. The stand taken in the counter affidavit in this respect deserves to
be sustained as the file produced before the court establishes that the Home
Secretary has not proposed but it is the government which proposed and
thereafter draft notification was published by the Home Secretary. It is not
the proposal by the Home Secretary and therefore the official bias, which is
sought to be advanced as one of the contention deserves to be rejected.
75. In the present case, the Home Secretary published the draft
scheme, invited the objections, heard the objections, considered the
objections and overruled the objections, Thereafter the scheme has been
approved by him and notified. Hence the contention that the Home Secretary
has acted as a Judge of his own cause cannot be countenanced. This contention
is basd on factual misconception. Hence the contention is liable to be
rejected.
76. It is also contended that under the Business Rules, the Home
Secretary is not the competent authority to hold an enquiry. This point has
already been decided by this court in the earlier Writ Petitions decided by
this Court in W.P.Nos:19067 to 19069/99 etc., batch. The same applies
squarely to the present case. In the said order, it has been held thus:-
“127. In the present case, the allocation of the Business Rules as
already pointed out confers the power on the Secretary to Government to Home
Department to notify a proposal, invite objections, hear objections, decide
objections quasi-judicially and pass orders and thereafter issue the
notifications. On facts it is clear that the said decision will have no
application to the facts of the case. However, it is to be pointed out that
the notifications in the said case also was issued in the name of the Governor
as seen from para 15 of the judgement. While holding that the Motor Vehicles
Act imposes a duty on the State Government to decide the objections judicially
in applying or modifying a scheme proposed by the Transport Undertakings and
in the view that Section 68(c) and 68(d) do require compliance with the
criteria
of a judicial act, it has been held that an order under section 68(d) is a
judicial act.
128. The issuance of notifications being an executive or ministerial
function requires to be issued in the name of the Governor. At any rate the
hearing of objections and taking a decision being quasi judicial and the
decision making process were by the Home Secretary which was followed by the
subsequent gazette notifications issued by the Home Secretary in the name of
the Governor, this gazette publication in no way vitiates, nor it is liable to
be interfered.
Xx xx xx xx
116. Incidentally, it has to be pointed out that the gazette publication of
the approved scheme as an administrative act. As already pointed out quasi
judicial function which the first respondent is expected to exercise and
discharge has actually been exercised by the first respondent in every respect
of the matter. As seen from the file not only by publishing the draft scheme
but also inviting objections, hearing objections and overruling the objections
and thereafter deciding to approve the proposed scheme and the entire quasi
judicial function has been performed and decided by the Home Secretary as an
independent authority as provided in the business rule.
117. In A.K.Kraipak Vs. Union of India, reported in 1969 ( II) SCC
262
= AIR 1970 SC 150, HEGDE,J., speaking for the Five Judges Bench of the Apex
Court while pointing out that the dividing line between the administrative
power and a quasi-judicial power is quite thin, held thus:-
“For determining whether a power is an administrative power or a
quasi-judicial power one has to look to the nature of the power conferred, the
person or persons on whom it is conferred, the framework of the law conferring
that power, the consequences ensuing from the exercise of that power and the
manner in which that power is expected to be exercised. Under our
Constitution the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by
the rule of law. In a welfare State like ours it is inevitable that the
jurisdiction of the administrative bodies is increasing at a rapid rate. The
concept of rule of law would lose its vitality if the instrumentalities of the
State are not charged with the duty of discharging their functions in a fair
and just manner. The requirement of acting judicially in essence is nothing
but a requirement to act justly and fairly and not arbitrarily or
capriciously. The procedures which are considered inherent in the exercise of
a judicial power are merely those which facilitate if not ensure a just and
fair decision.”
118. The provisions of the Motor Vehicles Act enjoined the first
respondent to act quasi-judicially or to act in part administratively. The
policy and expediency as seen from the provisions of the Act are the guiding
factors. As the statutory provision has expressly imposed a duty on the first
respondent to act judicially, that part of the first respondent commencing
from publication of draft proposal to the making of decision or decision
making process is a
quasi-judicial function.
119. In other words, commencing from notifying the proposal, inviting
objections, consideration of objections, taking a decision or the entire
decision making process is quasi-judicial and the later portion of gazette
publication issued is either ministerial or administrative. Hence, it is
clear that the publication in the gazette being a consequential ministerial or
administrative action on the part of the first respondent, and merely on the
basis of the text of the gazette publication, viz., “Governor of Tamil Nadu
modifies the Modified Scheme,” it cannot be concluded that it is not the first
respondent, Home Secretary, who had discharged the quasi-judicial function.
120. As has already been pointed out, the files placed before the
court would show that every quasi-judicial function had been discharged by the
Secretary to the Government (Home) Department. The ministerial act namely,
the publication of the approved scheme, just because the gazette publication
reads that the Governor had approved the scheme, in my considered view cannot
be a ground to quash the impugned notifications, nor it is a valid ground to
impugn the proceedings.
121. As has already been pointed out, the publication of the approved
scheme in the gazette is either a ministerial or administrative function. As
seen from the files, it is the Home Secretary who has exercised quasi judicial
function and the ministerial function, namely publication of the approved
scheme in the Gazette in the name of the Governor, in my considered view, will
not vitiate the impugned proceedings.
122. Functions have to be indicated as exercised either in terms of
statutory provisions or as per constitutional provisions. After the Home
Secretary has exercised the quasi judicial function as per the allocation, it
is the statutory Gazette publication or notification which has
been issued in the usual format or expression by the Secretary to Government.
Hence this contention cannot be sustained.”
77. Hence Points (B) and (C) are also answered against the
petitioners and in favour of the respondents.
78. Taking up the next contention, namely, failure to communicate the
full text of the decision taken by the Home Secretary and without
communicating the decision the approved scheme being notified, which is
contended as illegal, violative of principles of natural justice, while
according to the respondents it is not necessary to communicate the full text
of the proceedings and what is required under the Act is to publish the
approved scheme. The learned Advocate General produced the file of the Home
Secretary, where there is a discussion of all the objections advanced by
various objectors and for reasons recorded the objections have been overruled.
The order of the Home Secretary, as seen from the discussions, is a valid
order and it in no way suffers with illegality or arbitrariness or other
error.
79. It is contended by the learned Advocate General that Section 99
of the Motor Vehicles Act does not oblige the Government to communicate the
decision. Fairly the Home Secretary considered the objections and rejected
the same. The statutory provision also do not contemplate communication of
the full text. The approved scheme, as already pointed out is an
administrative action. On a perusal of the file, this court is satisfied that
the Home Secretary had considered all the objections taken into consideration
of the material objections, and rightly overruled the objections.I do not find
any illegality or perversity or any vitiating circumstances to hold that the
decision taken by the Home Secretary warrants interference. In this respect,
the learned Advocate General rightly referred to the earlier order passed by
this court in W.P.No:19067/99 etc., Batch (Senthil Vs The State of Tamil Nadu
and others) where this Court held thus:-
“111. Factually, it is clear from the files that it is the Home Secretary who
had heard the objectors, who had considered the objections, who had overruled
the objections and issued the proceedings approving the proposal. There is
nothing in the file to say that the Home Secretary had submitted the files to
any other authority, much less, to the Council of Ministers or any other
authority as sought to be contended by Mr.M.Palani, learned counsel appearing
for some of the petitioners. It is clear from the files as well as from the
affidavit filed by the Home Secretary, it is the Home Secretary who had heard
the objections, considered the objections and overruled the objections after
application of mind and by her proceedings approved the proposal as notified
earlier and issued the proceedings. Nobody else had a role to play in the
decision making process or the ultimate decision in
approving the modified approved scheme.
112. It is clear from the files and this court is satisfied that the
contentions to the contra cannot be sustained and such contentions are based
on factual misconceptions.
Xx xx xx xx xx
114. Thus gleaned from the settled legal position, it has to be held
that the decision taken by the Home Secretary and the approval of the Scheme
as notified is valid. There is no doubt in the mind of this Court that it is
the Home Secretary who had considered the objections and none else had a role
to play in the hearing of objections as well as considering and overruling the
objections and taking a decision to issue the impugned notifications.”
80. Taking up the remaining contentions, it is rightly pointed out
that specifying both minimum and maximum number of service and trips in the
Scheme was in accordance with the provisions of Chapter VI. In this respect
Mr.S.Varadhachari, learned counsel, relied upon the judgement of the Apex
Court in Asath Narayan Singh Vs. State of Mysore, reported in AIR 1965 SC
1843. However, the very same judgement is being rightly relied upon by the
learned Advocate General and being an area scheme it is contended that it is
very difficult to precisely indicate the minimum or maximum number of vehicles
and trips in each route in the area. While considering the said objections
the Apex Court held thus:-
“9. Our attention is also drawn to C.P.C. Motor Service V. State
of Mysore, (1962), Supp. (1) SCR 717. In that case at p.727, following
observations occur:-
“The earlier Rules required a statement as to the minimum and maximum
number of vehicles to be put on a route, as also the minimum and maximum
trips. It was however held by this court that a departure from the minimum
number would mean the alteration of the scheme, necessitating the observance
of al the formalities for framing a scheme.”
These observations are pressed into service to show that a minimum and maximum
number cannot be prescribed in a scheme prepared under S.68-E. It is true
that there is an observation in that case that it had been held by this court
that a departure from the minimum number would man an alteration of the
scheme, necessitating the observance of all the formalities for framing a
scheme. But learned counsel was unable to point out any case of this court
where it was held that departure from the minimum in the case of a scheme
which mentions both the minimum and maximum would require action under S.68-E.
The only case to which our attention was invited in this connection is that of
Dosa Satyanarayanamurthy (1961) 1 SCR 642 (AIR 1961 SC 82) but in that case it
was held that a departure from an exact number would require action under
S.68-E. However, that was not a case where the scheme itself fixed minimum
and maximum. The scheme in that case fixed an exact number and it was held
that departure from such a number would man modification of the scheme within
the meaning of S.68-E. The observation in C.P.C.Motor Service’s case (1962)
Supp (1) SCR 717 that this court had held that a departure from the minimum
would mean alteration of the scheme therefore appears to have crept in per
incuriam.
10. Lastly our attention is drawn to a judgment to this Court in
C.S.Rowjee V. State of Andhra Pradesh, AIR 1964 SC 962. In that case the
question of indicating minimum and maximum in the scheme had come up for
consideration. But the scheme in that case was quashed on the ground of bias
and this court had therefore no occasion to consider the question whether the
indication of minimum and maximum in the scheme would make it ultra vires
S.68-C. Even so some observations were made in that connection at the end of
the judgment. But the learned Judges made it clear that they had not thought
it necessary to decide the larger question viz., whether the mere prescription
of the maxima and minima constituted a violation of S.68-E, as to require the
scheme to be struck down. Therefore the observation in that case with respect
to the fixing of minima and maxima must be treated as obiter. Further in that
case it was argued on behalf of the State that the indication of minima and
maxima by itself would not be bad; but it was conceded that the gap between
the minima and maxima should not be very wide. The Court assumed this
position and then observed that in some of the case gap between the minimum
was very wide and if the scheme had not already been vitiated on the ground of
bias, this court might have struck it down on the ground that there was a wide
gap between the minimum and maximum. There is no doubt that though fixing of
minimum and maximum number of vehicles and trips with respect to each route is
permissible under S.68-C and would not be hit by S.68-E, the proportion
between the minimum and maximum should not be so great as to make the fixing
of minimum and maximum a fraud on Ss.68-C and 6 8-E of the Act. It is not
possible to lay down specifically at what stage the fixing of minimum and
maximum would turn into fraud; but it is only when the gap between the minimum
and maximum is so great that it amounts to fraud on the Act that it will be
open to a court to hold that the scheme is not in compliance with S.68-C and
is hit by S.68-E. The gap between the minimum and maximum would depend upon a
number of factors, particularly on the variation in the demand for transport
at different seasons of the year. Even so if the approved scheme were to fix
minimum and maximum with very wide disparity between the two, it may be
possible for the Court to hold after examining the facts of the case that such
fixation is not in accordance with S.68-C and is a fraud on S.68-E. But, with
respect, it seems to us that a variation in minimum and maximum from 6 to 12
or 5 to 9 can hardly be of such an order as to amount to fraud on the Act.
The observation s with respect of fixing of minimum and maximum number of
vehicles and trips in the scheme made in Rowjee’s case, AIR 1964 SC 962 must
therefore be treated as obiter as in that case they did not require
determination. In the present case the gap is not of such a wide nature.
Xx xx xx xx
12. WE are therefore of opinion that specifying of both minimum and maximum
number of vehicles and trips in the scheme under challenge is also in
accordance with the provisions of S.68-C and is not hit by S.68-E. The
contention of the appellants under this head is therefore rejected.”.
In the light of the above pronouncement of the Apex Court, this contention
also fails.
81. The last contention advanced by Mr.M.Krishnappan and others is,
namely, by virtue of the subsequent modification of the approved scheme in
respect of some of the writ petitions who have been granted permit and who
have been operating, they should be deemed to have secured the permits validly
and such permits are validated under the Tamil Nadu Motor Vehicles (Special
Provisions) Act, 1988. This contention is born out of frustration and it is a
clear misreading of the standing provisions of the said enactment.
82. It is settled law that after the approval of the Scheme private
operators have no right to claim permit to operate their vehicles on the
notified area, route or portion thereof except to the extent permitted by the
same. In U.P.SRTC Vs. Anwar Ahmed, reported in 3 SCC 19 1, it has been held
thus:-
“Once the scheme has been approved and notified, right to ply stage
carriages by private operators on the notified area, routes or portions
thereof is totally forzen. Therefore, they have no right to claim any grant
of stage carriage, temporary or contract carriage permits thereunder on the
said notified area, routes or portions thereof except to the extent saved by
the scheme with restrictions imposed thereunder. By virtue of Section 104 the
appellant corporation has the exclusive right or monopoly to ply their stage
carriages and obtain the required permit as per the scheme.
The proviso to Section 104 gives only a limited breath of life, namely
until the Corporation puts the vehicles on the notified routes as per the
scheme, temporary permits may be granted to private operators. Thereby,
temporary inconvenience to traveling public is sought to be averted till the
permits are taken and vehicles are put on to the route by the appellant. In
this case permits were taken by the appellant and the vehicles were put on the
route in terms of the scheme. But the private operators were seeking
temporary permits by carving out a new route by fusing two notified routes.
This device is obviously impermissible to enter into frozen area or route or
portion thereof through backdoor. The scheme is law by itself and until it is
varied according to law, no private operator has nay right to camouflage any
device to obtain temporary permits. Under these circumstance, action taken by
the respondents to obtain temporary permits is obviously ultra vires and
authorities have no jurisdiction to grant such permits. The altered or
modified routes are contrary to the approved scheme. Since they have been
occupied by two notified routes and to be operated as per the scheme.”
The above pronouncement is rightly relied upon by the learned Advocate General
and this court holds that the contention is a misconception.
83. In Thilagavathy Vs. Regional Transport Authority, Periyar
District, reported in 1995 (1) SCC 456 while upholding the validity of Tamil
Nadu Motor Vehicles (Special Provisions) Act, 1992 and legality of permits
already granted between 1976 and 30.6.1990, the Supreme Court held thus:-
“7. Reverting to the provision of the Act, it is slightly unusual legislation
as it came into force in July 1992 yet, except Sections 6 and 7, the remaining
provisions of the Act are deemed to have come into force in 1976 and ceased to
operate after 30-6-1990. The Act thus seeks to achieve dual objective one,
legislatively protecting those operators who were granted permits after 1976
under misconception by the transport authorities that the Scheme excluded
other operators from “end-to-end” route only by fictionally enabling the
transport authority to have issued permits notwithstanding any provision in
the Scheme framed by the Undertaking. Two, it prohibited grant of any new
permit after 30-6-1990 which overlapped whole or part of notified route, that
is, the Legislature while accepting the interpretation placed by this Court on
construction of Scheme prepared under Section 68-C legislatively removed the
hurdle in grant of permits on notified route in past, validated the grant so
made but prohibited any grant in future. Sections 3, 4, 5 and 10 are directed
towards regularising and validating the permits granted between 1976 and
30-6-1990, whereas Sections 6 and 7 achieve the latter objective. Section 3
is the main section. Its sub-sections (1) and (2) empower a Regional
Transport Authority to grant, renew or vary conditions of permit of a small
operator, which, according to the explanation to the section, means any stage
carriage operator holding not more than five stage carriage permits, to ply on
a notified route or part of it notwithstanding anything contained in any draft
scheme. Sub-section (3) of Section 3 provides that during the period the
permit referred to under sub-section (1) or (2) was in force the draft scheme
shall stand modified to that extent. Sub-section (4) makes the provisions of
Chapter V of the Act applicable to grant, renewal or variation of permit.
Section 5 provides that Sections 3, 4 and 6 shall have effect notwithstanding
anything inconsistent therewith contained in Chapters V and VI including
Section 98 of the Motor Vehicles Act. Section 10 validates the grant of
permit retrospectively. Section 3 thus created power in the transport
authority to grant, renew, vary or alter permit from 1976 and Section 10
validated such grant notwithstanding anything to the contrary in the new Act.
There was no challenge by the State Transport Undertaking to these provisions
by which the grant of permits in favour of the operators between 1976 and 1990
has been permitted and validated.
Xx xx xx xx xx
9. But what has created confusion is Section 10 which reads as under:
“10. Notwithstanding anything contained in Chapters V or VI including Section
98 of the Motor Vehicles Act, 1988 all orders passed granting permits or
renewal or transfer of such permits or any variation, modification, extension
or curtailment of the route or routes specified in a stage carriage permit
during the period commencing on the 4th day of June, 1976 and ending with the
date of the publication of this Act in the Tamil Nadu Government Gazette,
shall for all purposes be deemed to be and to have always been taken or passed
in accordance with the provisions of this Act as if this Act had been in force
at all material times.”
The section is not happily worded. Literally read it may clash with
sub-section (4) of Section 6 of the Act. Reliance was placed on the
expression “and ending with the date of the publication of this Act in the
Tamil Nadu Government Gazette”. It was urged that this clearly indicated that
any permit granted between 4-6-1976 and the date of publication of the Act,
namely, 31-7-1992, would be valid. According to the learned counsel the High
Court committed an error of law in dismissing the writ petitions filed by the
appellants on basis that their permits having been granted or countersigned
after 30-6-1990 were invalid and contrary to the Scheme of the Act. A
superficial reading of Section 10 does give an impression that the operation
of the Act for purposes of grant of permit stood extended not only up to
30-6-1990 but up to 31-7-1992. But that would be in the teeth of sub-section
(4) of Section 6 and Section 3 itself. The purport of the Act was to protect
those operators who had been issued permits between 1976 and 30-6 -1990 and
not to depart from the interpretation placed by this Court. The Legislature
while protecting the past mistakes of the Government has taken care not to
repeat it in future. This is not discrimination but accepting the decision
given by this Court. Further it is a validating provision. In absence of it
the action of the authorities granting permits which was legislatively made
permissible by Sections 3 and 4 would not have been saved. It too ceased to
operate from 30-6-1 990 in view of sub-section (3) of Section 1 which reads as
under:
“The provisions of the Act (except Sections 6 and 7) be deemed to have come
into force on the 4th June, 1976 and remain in force up to and inclusive of
the 30th June, 1990 and Section 6 shall be deemed to have come into force on
the 1st July, 1990.”
A provision which was legislatively dead on 30-6-1990 could not be deemed to
be alive for purpose of grant of permit because of the expression “the date of
publication of this Act in the Tamil Nadu Government Gazette” appearing in the
provision. The High Court thus did not commit any error in dismissing the
writ petition of those operators whose claim for new permit after 30-6-1990
was rejected by the authorities.”
84. In the light of the said pronouncement the petitioners who are
running either on a temporary permit or under interim orders of Stay and who
have not been granted permit during the material period as was sought to be
protected by the Special Provisions Act cannot claim that they should be
considered as grantees under the said Special Provisions Act and claim
protection. Such a contention is far fetched and such claims will not fall
nor it is saved nor there could be a grant. It is also contended that by
virtue of the modification of the scheme, the scheme has become inoperative.
In this respect this court has already held while dealing with the preliminary
objection that the modification of the Scheme in no manner change the area
scheme at all and only a relaxation has been made in respect of Mini Bus
operators to be operated for a limited distance in the approved area scheme
routes.
85. It is sought to be contended that the State Government has
already proposed to change its policy of nationalisation and has also
published draft schemes in this respect. But on that score, this court will
not be justified in holding or assuming that the entire area scheme ceased to
exist or rendered unworkable and that the petitioners should be granted
permits under Chapter V. Such a contention is an attempt to side track the
entire case. There are no merits in such a contention.
86. All these contentions advanced by the learned counsel for the
petitioners fail and this batch of writ petitions are dismissed, but without
costs. Consequently, connected WMPs are closed.
Internet:Yes
Index:Yes
gkv
Copy to:-
1. The Government of Tamil Nadu
rep. by the Secretary Home
(Tansport Dept.,) Secretariat,
Chennai-9
2. The Regional Transport Authority,
Periyar District., Erode.
((SCO LYRIX 6.1
))