JUDGMENT
K.S Lodha, J.
1. Petitioner Sardar Mohammed had challenged the draft scheme published Under Section 68-C of the Motor Vehicles Act, 1939 (for short ‘the Act of 1939″) for the route Kishangarh to Sarwad on November 30, 1987.
2. I have heard learned Counsel for the petitioner as also Mr. Munshi appearing for non-petitioner No, 2.
3. Two contentions have been raised before me by the learned Counsel for the petitioner. His first contention is that though the scheme had been printed on November 30, 1987 in the official gazette, it cannot, be deemed to be that date of its publication because it has been held in R.S.R.T.C. v. Daudayal (D.B. Civil Special Appeal No. 210/87, decided on 17-12-1987 that it is rather impossible that the date of printing and the date of the despatch from the press should be the same, and as the gazette containing the notificalion must have been despatched from the press after considerable time, the publication cannot be said to be in accordance with law and the scheme must, therefore, be struck down on this ground. Mr. Munshi has contested this ground and has stated that the petitioner has not specifically alleged that us a matter of fact the gazettee dated 30-11-1987 was not despatched on that very day and no presumption can be drawn that it could not have been despatched on that day. Therefore, according to him, the publication was in accordance with law.
4. Having given my careful consideration to the rival contention, I am, of the opinion that this contention cannot be accepted in the circumstances of this case. In the absence of any specific avernment to the effect that the gazette date. November 30, 1987 has not been despatched on that day, there cannot be any presumption that as a matter of fact, if had not been despatched on that day. The decision in R.S.R.T C v. Dau Dayal, referred to above, does not lay down that there is a presumption in law that the Gazette printed on a particular day cannot be deemed to have been despatched on that very day. This observation must be taken to have been made in respect of the specific avernment and evidence in the case. It cannot be separated from its context. There may be cases where sometime may lapse between printing and despatch of the Gazette, but it cannot always be necessarily so and there may be cases where a gazette may be despatched on the very day when it is published. In these circumstances, it was necessary for the petitioner to have made a specific avernment in the writ petition that the gazette printed on November 30, 1987 was not despatched on that day. He merely relies on the so called presumption said to have been raised in R.S.R.T.C. v. Daudayal. That is not the case here. My attention was particularly drawn by the learned Counsel to clause (viii) of ground 6 and it has been urged by him that there is specific allegation that the gazette dated November 30, 1987 was not despatched on that day and must have been despatched, much after November 30, 1987, but I am unable to accept this contention also because in this clause (viii) of para 6 of the grounds, the petitioner has started with the words –“As stated above the publication of the aforesaid notification dated 30-11-87 is antidated because the date so printed is 30-11-1987 and the date of despatch from Jaipur is much after 30-11-1987.” This avernment, therefore, cannot be taken to mean to be an avernment to the effect that the Gazette was, as a matter of fact, not despatched on 30-11-1987 and the petitioner merely relies on the presumption already referred to above.
5. It was, then, urged by the learned Counsel that the Superintendent, Government Central Press, Jaipur has been made a party to this writ petition and it is for him to file a reply and controvert the allegation. This contention also does not appeal to me. The question of controverting the allegation arises only when there is specific allegation. In the absence of such a specific allegation the Superintendent, Government Central Press, Jaipur need not be called upon to controvert it. The first contention must, therefore, fail.
6. The second contention is that the Act of 1939 has been repealed by sec 217(1) of the Act of 1988, which came into force on July 1, 1989 and Under the exception mentioned in clause (e) of Section 217(2), any scheme made Under Section 68C of the Act of 1939 of Under the corresponding law, if any, in force in any State and pending immediately before the commencement of this Act, shall be disposed of in accordance with the provisions of Section 100 of the Act of 1988. Section 100(4) of the Act of 1988 reads as Under:
(4) Not with standing any thing 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.
The contention of the learned counsel for the petitioner, therefore, that the draft scheme, which was published on November 30, 1987, has not been published as an approved scheme, although a period of more than one year from the publication of the scheme has already passed and, therefore, that scheme must be deemed to have lapsed. I do not find force in this contention either. Section 100 of the Act of 1988 by itself relates to the schemes, which are prepared under Section 99 of that Act Under Section 100 after the publication of the proposal, objections are invited and after hearing the objectors, the State Govt. may approve or modify such proposal. Under Sub-section (3) the draft proposal approved or modified under Sub-Section (2) has to be published in the Official Gazette by the State Government and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and on such publication, the scheme shall become final on the date of its publication. Then, Sub-section (4) says that if the 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 the publication of the proposal regarding the scheme, the proposal shall be deemed to have lapsed. How ever, by virtue of Clause (e) of Sub-section (2) of Section 217, the draft schemes made under Section 68C of the Act of 1939 or under the corresponding law in force in any State and pending immediately before the commencement of this Act, have to be disposed of in accordance with Section 100 of the Act of 1988. Mr. Vyas contends that when such a draft scheme published under Section 68C was pending immediately before the commencement of the Act of 1988 if would also be governed by Sub-Section (4) of Section 100 and if it is not published as an approved scheme within one year from the date of the publication of the draft scheme, the scheme must be deemed to have lapsed and as in this case the draft scheme had been published on Nov. 30, 1987 and was pending on July 1, 1989, when the Act of 1988 came into force and has not been published as an approved scheme till now and a period of one year from its publication as a draft scheme has already elapsed, this scheme must be deemed to have lapsed. According to be, the contention is a little fallacious. As already stated above, Section 99 of the Act, 1988 lays down the procedure for the preparation of a draft scheme and Section 100 thereof lays down the procedure for approving or modifying such proposal and it is in respect of these schemes, which are prepaired under Section 99 that Sub-section (4) of Section 100 is applicable. By virtue of the Clause (e) of Sub-section (2) of Section 217, the same procedure has to be adopted for modification or approval of the schemes which had been published under Section 68-C of the Act of 1939 and which were pending immediately before the commencement of the Act, as it says such schemes shall be disposed of in accordance with the provisions of Section 100 of the Act of 1988. Now, while applying the procedure laid down under Section 100 of the Act of 1988 to the schemes prepared and published under Section 68C of the Act of 1939, the rigorous of Sub-section (4) cannot apply from the date of the publication of that scheme though those schemes or proposals have to be disposed of in the manner provided under Section 100 of the Act of 1988; the rigorous can apply only from the date of the coming into force of the Act of 1988. In other words, for the purpose of Sub-section (4) of Section 100, those draft schemes may be deemed to have been published on July 1, 1988, by a legal fiction, when the Act of 1988 came into force and the actual date of publication of the draft schemes under Section 68-C, cannot be taken into account because if that is so, it will lead to an anomalous position; for example, if the draft scheme under Section 68-C of the Act, 1939 was published on July 3, 1988 and was not published as an approved scheme till August 2, 2988, it would automatically stand lapsed on July 3, 1988 and there will be no occasion for the applicability of Section 100 by calling the objections, hearing them and disposing them of. Such could not be the intention of the legislature. I am further supported in this interpretation of Section 100(4) read with Clause (e) of Sub-section (2) of sec 217 by clause (f) thereof, which says that the permits issued under Sub-Section (1A) of Section 68F of the Act of 1939 or under the corresponding provisions, if any in force in any State, immediately before the commencement of this Act shall continue to remain in force till the approved scheme under Chapter VI of this Act is published. Now if those permits were to live five till the approved scheme under the Act of 1988 was to be published under Section 100, it would certainly have taken some time after the coming into force of the Act of 1988 to publish the approved scheme which was a draft scheme under Section 68C of the Act 1939 and the permits issued under Sub-Section (1 A) of Section 68F would continue till then, but the scheme published under Section 68C would stand lapsed even before there is opportunity for publication of the approved scheme under Section 100 of the Act of 1988.
7. In these circumstances, I am clearly of the opinion that the draft scheme published on November 30, 1987 on Krishgarh to Sarwad route cannot be deemed to have lapsed under Sub-section (4) of Section 100 of the Act of 1988.
8. The writ petition, therefore, has no force and is here by, dismissed.