JUDGMENT
S.N. Phukan, J.
1. The petitioner No. 1 is a registered Associa ion of the Stage Carriage permit holders and the members are running buses in the route Nagoan-Marigoan-Basanaghat-Jagiroad, for short, ‘notified route’ and its sub-routes. On 11th January, 1977 the Government of Assam, respondent No. 1, after considering the objections published a scheme under Section 68D of the Motor Vehicles Act, 1939, for short, ‘the Act’ (Annexure-A to the petition) and according to that scheme the Assam State Transport Corporation, for short, ‘the Corporation’ was allowed to run and operate passenger road transport service in partial exclusion of other persons subject to the condition that only existing number of private buses, that is, 73 plying on the said route shall be allowed to operate side by side along with the State Transport Corporation buses. In other words, though the route in question was notified, the present petitioners were allowed to operate buses side by side along with the buses of the Assam State Transport Corporation.
2. The respondent No. 4 is also an Association of Stage Carriage permit holders and they are operating in the route Nagoan-Dhing-Moirabari-Lahorighat-Bhuragoan-Gerua-Basanaghat with its sub-routes. The respondent No. 4 filed a petition before the State Government praying for allowing them to overlap a portion of the ‘notified route’ from Basanaghat to Jagiroad. The petitioner filed objections and the matter was fixed for hearing. But on the prayer of the parties the hearing was twice adjourned and finally the matter came up for hearing before the State Government on 17-8-81 at Dispur at 11 A.M. As the petitioners were not present, the matter was heard in their absence and the Government of Assam modified the approved scheme and accordingly informed the Secretary, Regional Transport Authority, Nagoan. by letter dated 17th August, 1981 (Annexure-I to the petition) that after giving a hearing to the representatives of respondent No. 4, a few leading public of the locality and also the Corporation, the Government was pleased to order that for the convenience of travelling public of Lahorighat-Dhing-Bhuragoan route the respondent No. 4 was allowed to operate one service daily from Basanaghat to Jagiroad and another from Jagiroad to Basanaghat with the condition that there should be no stoppage in between the above two points. In the said letter it was also mentioned that the above orders were passed in absence of the petitioners as they did not appear ‘inspite of hearing being adjourned twice at their instance’. The petitioners have alleged that due to some mechanical defect of the car on the road the President of the Association who was coming from Nagoan arrived Dispur at 11.20 A.M. and came to know that hearing was over and order was passed. Thereafter on the same day the petitioners filed a petition for review of the order. It has been alleged that though hearing of the review petition was field on three occasions, it was not heard and ultimately the State of Assam informed the Secretary, Regional Transport Authority, Nagoan, by a letter dated 16th June, 1982 (Annexure-N to the petition) that the revision petition submitted by the petitioners cannot be entertained ‘as there is no provision for submission of revision petition in respect of modification of the scheme in question’. Being aggrieved the petitioners have approached this Court for invoking the jurisdiction under Article 226 of the Constitution.
3. Mr. A.C. Boar, learned Counsel for the petitioners has strenuously urged that as the impugned letter dated 16th June, 1982 was issued without hearing the review petition the said letter is bad in law being volatile of the principle of natural justice. Mr. A.K. Bordoloi, learned Government Advocate, Assam and Mr. S.N. Bhuyan, learned Counsel for the respondent No. 4 have contended that the Act including Chapter IV. A, which provides for special provisions is self-contained and as there is no provision for review under the said Chapter IV. A no review petition would lie According to the learned Counsel, by the impugned letter dated 16th June, 1982 the State Government only informed the concerned authority about the legal position and as such no hearing is necessary and the letter in question is not bad in law.
4. Before we consider the contention of Mr. Bora, learned Counsel for the petitioners regarding violation of principle of natural justice in issuing the impugned order dated 16th June, 1982 by the Government of Assam (Annexure-N to the petition) we would like to consider the validity of the letter dated 17th August, 1981 (Annexure-I to the petition) by which the scheme of the notified route was modified. Though in the said letter dated 18th June, 1982 the provision of law under which the said scheme was modified has not been quoted, admittedly it was modified by the State Government by resorting to the provisions of Sub-section (2) of Section 68E of the Act. The provisions of said Sub-section (2) of Section 68E are clear and unambiguous and the State Government may, at any time, in the public interest modify the present scheme in question in respect of the notified route. But the scheme can be so modified by the State Government after giving an opportunity of being heard to the undertaking and any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification. Admittedly the petitioners are likely to be affected by the proposed modifications and they are entitled for an opportunity of being heard before any final order of modification is made. There is no dispute that the State Government issued notice on the petitioners regarding proposed modification and the matter came up for hearing on three occasions, twice petitioners prayed for time and on the last occasion, that is, on the date the final order was passed the petitioners could not appear on time.
5. Mr. Bora, learned Counsel for the petitioners has drawn our attention to the decision of the Supreme Court in Malik Ram in support of his contention that the petitioners should have been heard and also allowed to adduce evidence. In Malik Ram (supra) an application for adducing evidence of witnesses in support of the objection to the draft scheme under Section 68D of the Act was rejected, but their Lordships held that production of evidence, either oral or documentary, is comprehended within the hearing contemplated in Section 68D(2) of the Act. In our opinion the above decision is not relevant for the purpose as the petitioners did not file any such application and that apart they even failed to avail of the opportunity given to them.
6. Mr. S.N. Bhuyan, learned Counsel for the respondent No. 4 has relied on Ram Narayan Lal Shaw AIR 1958 Patna, 71, in support of his contention that reasonable opportunity was given to the petitioners before the approved scheme was modified. It was held by the Patna High Court that natural justice does not imply unfettered liberty to the litigants to determine and direct the course of hearing of their cause, nor does it make the hearing dependent upon the convenience of the litigants. Once a person affected is given a reasonable opportunity of being heard there is sufficient compliance with the fundamental principle of natural justice and if the party does not avail of that opportunity and fails to place his case before the court or tribunal, either personally or through a lawyer, there is no denial of justice to him. We are in respectful agreement with the above views expressed.
7. In the case in hand, as stated earlier the petitioners were given reasonable opportunity of being heard as required under Sub-section (2) of Section 68E of the Act, but the said opportunity could not be availed of by the petitioners. The State Government was also of the opinion that modification of the scheme was necessary in this public interest, that is, for the convenience of travelling public of Lahorighat-Dling and Bhuragoan route. We are, therefore, of the view that the State Government modified the scheme by using its discretion after following the procedure laid down in Section 68E of the Act.
8. It is a well settled principle of law that however extensive the jurisdiction of this writ court may be it is not wide or larges to enable the High Court to convert itself into a court of appeal. The power under Article 226 of the Constitution is supervisory and not appellate in nature. We, therefore, need not enter into the controversy whether the petitioners were prevented due to unavoidable circumstances from appearing before the State Government on this date of hearing. As the petitioners were given reasonable opportunity of being heard there was sufficient compliance with the provisions of Section 68E of the Act and also the principle of natural justice. We, therefore, hold that the order of the State Government dated 17th August, 1981 (Annexure-I to the petition) by which the approved scheme was modified was legally and validly passed under the provisions of the Act.
9. We would now consider the contention on behalf of the petitioners regarding review petition. In Patel Narshi Thakershi AIR 1970 SC 1273, the Supreme Court reiterated the principle that the power to review is not an inherent power and it must be conferred by law either specifically or by necessary implication. In R.R. Verma and Ors. AIR 1980 SC T461 the above principle was reiterated but it was held that the said principle is inapplicable to decisions purely of an administrative nature. We shall consider at the appropriate place whether the order in question issued in the instant case was administrative or not. In 77 C.J.S. review 1. (Corpus Juris Secundum Vol. 7 under the heading review) the nature and scope of remedy by review has been explained as follows:
The proceeding by way of writ of action of review is a statutory remedy which in its nature is a new trial of the issues previously tried between the parties. The proceedings by way of writ of review, or, as it is some times called, a petition for review or action of review or a review, is a statutory remedy unknown to common law.
10. We have considered the provisions of the Act including Chapter IV-A and we are of the opinion that the Act does not confer specifically or by necessary implication any power of review of the order passed under Section 68E (2). Dilwara Singh and Ors. , a scheme under Section 68D of the Act was approved by the minister-in-charge, Transport and the successor minister of Transport wanted to review the order, but subsequently dropped the matter. It was held that the successor minister of Transport had no power to review such an order and that effect of dropping the decision to rehear the matter did not lose the finality of the order passed by the minister. In the instant case also, though the review petition of the petitioners was fixed for hearing but subsequently it was dropped. We are of the opinion that such dropping could not any way affect the order of modification of the scheme (Annexure-I to the petition).
11. Mr. Bora, learned Counsel for the petitioners have strenuously urged that as the review petition was fixed for hearing the, impugned letter dated 16th June, 1982 (Annexure-N to the petition) by which the State Government informed the Secretary, Regional Transport Authority, Nogaon that ‘as there is no provision for submission of revision petition in respect of the modification of the scheme the revision petition submitted by the North West Transport Syndicate cannot be entertained’ is bad in law as it was issued without hearing the petitioners. We are unable to accept the contention of Mr. Bora as by the aforesaid order the Government only informed the correct legal position and for that purpose it is not necessary to hear the parties. We are, therefore, constrained to reject the contention of Mr. Bora.
12. Mr. Bora contended that the order modifying the scheme being an administrative order the State Government can review the said order in view of the decision of the Apex court in R.R. Verma (supra). We are unable to accept that the order in question which was passed under a statute is an administrative order and as such the contention of Mr. Bora has no force. As the order was passed under Section 68E(2) of the Act it can be reviewed if the Act confers any power either specifically or by necessary implication on the State Government to review such order. We have already held that there is no such power of review.
13. Relying on Khushal Dass , Mr. Bora contended that the State Government can review the order. Section 68E of the Act was considered by the Rajasthan High Court and it was held that if a scheme is once modified under Sub-section (1) of the said section the State Government can again modify the scheme under Sub-section (2). There is no dispute on this point as two Sub-sections are independent. In the instant case the scheme was modified not under Sub-section (1) but under Sub-section (2) of Section 68E and therefore the above decision is not relevant for the present purpose.
14. Mr. Bora urged that the present order modifying the scheme being an ex parte order it can be reviewed by the State Government and in support of his contention he has placed reliance on Grindlays Bank Limited . That case was in respect of an industrial dispute and the learned tribunal made an ex parte award which was subsequently set aside by the tribunal. While upholding the decision of the learned Industrial Tribunal the Supreme Court observed that as per the rules framed under the Industrial Disputes Act the provisions of the Code of Civil Procedure were applicable and that the Tribunal retained its jurisdiction as the proceedings before the Tribunal at the relevant time continued in view of the provisions of Sections 17 and 17A of the Industrial Disputes Act. Under Chapter IV-A of the Act we do not find any provision that the principle of the Code of Civil Procedure will be applicable to the proceeding before the State Government. That apart, after passing the order under Section 68E(2) of the Act the State Government became funtus officio. The above decision is not relevant for the present purpose.
15. From what has been stated above we hold that the order of the State Government modifying the approved scheme dated 17th August, 1981 (Annexure-I to the petition) was legally and validly made under Section 68E(2) of the Act. We further hold that in issuing the letter dated 16th June, 1982 (Annexure-N to the petition) the State Government did not violate the principle of natural justice and as such the said letter is valid and legal.
16. In the result, the petition is dismissed and the rule is discharged. No cost.