{"id":217683,"date":"2003-03-21T00:00:00","date_gmt":"2003-03-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sri-lakshmi-saraswathi-bus-vs-the-government-of-tamil-nadu-on-21-march-2003"},"modified":"2014-06-06T09:19:00","modified_gmt":"2014-06-06T03:49:00","slug":"sri-lakshmi-saraswathi-bus-vs-the-government-of-tamil-nadu-on-21-march-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sri-lakshmi-saraswathi-bus-vs-the-government-of-tamil-nadu-on-21-march-2003","title":{"rendered":"Sri Lakshmi Saraswathi Bus … vs The Government Of Tamil Nadu on 21 March, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Sri Lakshmi Saraswathi Bus … vs The Government Of Tamil Nadu on 21 March, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN  THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 21\/03\/2003\n\nCORAM\n\nTHE HON'BLE MR.JUSTICE E.PADMANABHAN\n\nWRIT PETITION NO.15920 of 1995\nWRIT PETITION NOS. 15922 of 1995, 15983, 15986, 10854, 10862, 10864,\n10865, 10875, 10876, 10880, 11238, 11239, 11368, 11369, 11370 ,\n11557, 12152, 12921, 13084, 13085, 11410, 11411, 11412, 13364, 13365,\n13366, 13373 to 13375, 13382, 13383, 13509, 13573, 13574,\n1334, 13335, 16363 to 16366, 16459, 17371, 17372, 17408,  17409,\n17410,14139, 14308 to 14310, 15915, 17480, 17504 to 17508,\n16861 of 1995 & 3358  of 1996 & 1234, 4636, 1380, and 9685 of 1998\nand\nW.M.P.Nos:25431, 25433, 25435, 25437, 7436, 7439\/97 & 17252\/95,\n52552 , 52089\/2002, 17261, 17265, 17282, 17284, 170288, 17836,\n17838\/1995, 18045, 18047, 18049, 18351\/1995, 19366, 65866\/1996,\n20701, 20982 20984, 21447, 21455, 21456, 21469, 21661, 21749, 21751,\n25991, 25993, 25995, 25997\/1995, 11855 to 11858\/1997 27495, 27497,\n22505, 22766, 22768 , 22770, 25304, 25322, 25324, 25326\/1995, 4729,\n4730, 4731\/97, 5400\/96, 20602, 7093\/98 and 15379\/95.\n\nW.P.No:15920\/95\n\nSri Lakshmi Saraswathi Bus Service\nTeachers' Colony, Erode.                        ..Petitioner\n\n-Vs-\n\n1. The Government of Tamil Nadu\n   rep. by the Secretary Home\n   (Tansport Dept.,) Secretariat,\n   Chennai-9\n\n2. The Regional Transport Authority,\n   Periyar District., Erode.\n\n3. Jeeva Transport Corporation Ltd.,\n   rep. by its Managing Director\n   Chennimalai Road,\n   Erode 738 002                                ..Respondents<\/pre>\n
 !For petitioners:\n<\/p>\n
 Mr.S.Varadachachi      ::      WP.Nos:15983 to 15986, 15920
\n                                to 15922\/95<\/p>\n
 Mr.M.Krishnappan       ::      W.P.Nos:10854, 11410, 11411 and 11412\/95<\/p>\n
 Mr.S.C.Palanisamy      ::      W.P.Nos:10862, 10864, 10865,
\n                                10875, 10876, 10880, 13364,
\n                                13365, 13366, 13373, 13383,
\n                                17480, 13334 , 1335, 13374,
\n                                13375, 13382, 17504, 17505,
\n                                17506, 17507 and 17508\/95<\/p>\n
 Mrs.S.Radhagopalan     ::      W.P.Nos:11238,16861 & 11557\/95<\/p>\n
 Mr.R.S.Ramanujam       ::      W.P.Nos:11368 to 11370, 13084,
\n                                17408, 17409 and 17410\/95<\/p>\n
 Mr.N.Gopalakrishnan::  W.P.Nos:12152, 17371, 17372\/95<\/p>\n
 Mr.C.R.Krishnamoorthy  W.P.Nos:11239\/95, 6114\/98,
\n                        13573, 13574 , 16459, 14308 to
\n                        14310\/95 and 6086 of 1998<\/p>\n
 Mr.K.M.Venugopal       ::      W.P.Nos:13509\/95, 15915\/95<\/p>\n
 Mr.R.Neatesan          ::      W.P.Nos:16363 to 16366 of 1995<\/p>\n
 Mr.V.Lakshminarayan::  appearing in person
\n                        (WP3358\/96)<\/p>\n
 Mr.K.Hariharan ::      W.P.Nos:1234, 4636\/98 &
\n                        9685\/95<\/p>\n
 Ms.P.Vedavalli ::      W.P.1380\/98<\/p>\n
 Mr.M.Palani            ::   for implead petitioners’<\/p>\n
 ^For Respondents:      ::      In all the Writ Petitions
\n                                 Mr.N.R.Chandran,
\n                                Advocate General assisted by
\n                                 Mr.Sanjay Ramasami<\/p>\n
        Petitions filed under Article 226 of The Constitution of India praying
\nfor the issue of a writ of Certiorari as stated therein.\n<\/p>\n
:C O M M O N  O R D E R<\/p>\n
        This  batch  of  Sixty  Four  writ  petitions  were  ordered   to   be
\nconsolidated by the orders of the Hon’ble Chief Justice and they were taken up
\ntogether.   With the consent of counsel for the petitioner in each of the writ
\npetition and the respondents in each of the writ petition, the writ  petitions
\nwere taken  up  for final disposal.  The counsel appearing in each of the writ
\npetition and the Learned Advocate General appearing for the  respondents  made
\ncommon submissions.    It  is  stated  by the counsel for the petitioners that
\npoints raised in these writ petitions are common and they could be  considered
\ntogether excepting a small difference, which may not have a bearing in respect
\nof the ultimate orders that may be passed in this batch of writ petitions.\n<\/p>\n
        2.   In W.P.Nos:15920 to 15922, 15983, 15984, 15985, 15986, 16861 of 1
\n995, the petitioners have prayed for the issue of a writ of certiorari to call
\nfor the records of the first respondent in G.O.Ms.No:  749,  Home  (Transport)
\ndated 23.5.1995 and published in Tamil Nadu Government Gazette (Extraordinary)
\nNo.268 dated 24.5.1995 relating to the revenue District of Erode and quash the
\nsame and pass such further or other orders as this court deems fit.\n<\/p>\n
        3.   In W.P.Nos:10854, 10862, 10864, 10865, 10875, 10876, 10880, 11239
\n, 11557 of 1995, the petitioners have prayed  for  the  issue  of  a  writ  of
\ncertiorari to  call  for  the  records of the first respondent in G.  O.Ms.No:
\n742,  Home  (Transport-III)  dated  24.5.1995  and  published  in  Tamil  Nadu
\nGovernment Gazette No.469, dated 24.5.1995 relating to the revenue District of
\nVellore and quash the same and pass such further or other orders as this court
\ndeems fit.\n<\/p>\n
        4.  In W.P.Nos:  11238, 12152 of 1995, the petitioners have prayed for
\nthe  issue  of  a  writ  of  certiorari  to  call for the records of the first
\nrespondent in G.O.Ms.No:  743 and 744, Home  (Transport-III)  dated  23.5.1995
\nand  published  in Tamil Nadu Government Gazette, dated 24.5 .1995 relating to
\nthe revenue Districts of Tiruvannamalai and Villupuram and quash the same  and
\npass such further or other orders as this court deems fit.\n<\/p>\n
        5.   In  W.P.Nos:11368,  11369, 11370, 13084, 13085, 13364, 13383, 143
\n08, 14310, 16363, 16364, 16365, 16366, 16459, 17408, 17409, 17480 of 1995, the
\npetitioners have prayed for the issue of a writ of certiorari to call for  the
\nrecords of  the  first  respondent  in  G.O.Ms.No:  74 7, Home (Transport-III)
\ndated  23.5.1995  and  published  in  Tamil  Nadu  Government  Gazette,  dated
\n24.5.1995  relating  to  the  revenue District of Salem and quash the same and
\npass such further or other orders as this court deems fit.\n<\/p>\n
        6.  In W.P.Nos:12921, 13509, 15915, 13598  of  1995,  the  petitioners
\nhave  prayed  for the issue of a writ of certiorari to call for the records of
\nthe first respondent in G.O.Ms.No:  750, Home (Transport-III) dated  23.5.1995
\nand  published  in  Tamil Nadu Government Gazette, dated 24.5.1995 relating to
\nthe revenue District of Madurai and quash the same and pass  such  further  or
\nother orders as this court deems fit.\n<\/p>\n
        7.  In W.P.Nos:  13573, 13574 of 1995, the petitioners have prayed for
\nthe  issue  of  a  writ  of  certiorari  to  call for the records of the first
\nrespondent in  G.O.Ms.No:    7,  Home  (Transport-III)  dated  23.5.1995   and
\npublished  in  Tamil Nadu Government Gazette No.458, dated 24.5.199 5 relating
\nto the revenue District of Virudhunagar and  quash  the  same  and  pass  such
\nfurther or other orders as this court deems fit.\n<\/p>\n
        8.  In  W.P.Nos:   14139, of 1995, the petitioners have prayed for the
\nissue of a writ of certiorari to call for the records of the first  respondent
\nin G.O.Ms.No:    756,  Home  (Transport-III)  dated 24.5.1995 and published in
\nTamil Nadu  Government  Gazette,  dated  24.5.1995  relating  to  the  revenue
\nDistrict of Sivaganga and quash the same and pass such further or other orders
\nas this court deems fit.\n<\/p>\n
        9.   In  W.P.Nos:17371, 17372\/95 1234\/98, 4636\/98 the petitioners have
\nprayed for the issue of a writ of certiorari to call for the  records  of  the
\nfirst respondent  in G.O.Ms.No:  746, Home (Transport-III) dated 23.5.1995 and
\npublished in Tamil Nadu Government Gazette No.469, dated 24.5.1995 relating to
\nthe revenue District of Dharmapuri and quash the same and pass such further or
\nother orders as this court deems fit.\n<\/p>\n
        10.  In W.P.No:3358 of 1996 the petitioner has prayed for the issue of
\na writ of certiorari to call for  the  records  of  the  first  respondent  in
\nG.O.Ms.No:   748,  Home (Transport-III) dated 23.5.1995 and published in Tamil
\nNadu Government Gazette  NO.268,  dated  24.5.1995  relating  to  the  revenue
\nDistrict  of  Coimbatiore  and  quash  the same and pass such further or other
\norders as this court deems fit.\n<\/p>\n
        11.  In W.P.No:  1380 of 1998 the petitioner has prayed for the  issue
\nof  a  writ  of  certiorari to call for the records of the first respondent in
\nG.O.Ms.No:  746, Home (Transport-III) dated 23.5.1995 and published  in  Tamil
\nNadu  Government  Gazette NO.268, dated 24.5.1995 and quash the same in so far
\nas it affects the petitoenrs inter-state route  Bangalore  to  Tirupathur  and
\npass such further or other orders as this court deems fit.\n<\/p>\n
        12.   In  W.P.No:13374 and 13375 of 1995 the petitioner has prayed for
\nthe issue of a writ of  certiorari  calling  for  the  records  of  the  State
\nTransport  Appellate  Tribunal,  Madras  made  in  Appeal NO.882 of 1984 dated
\n22.12.1994 confirming the order of the Regional Transport  Authority,  Periyar
\nDistrict  at Erode made in R.No.54236\/A2\/84 dated 6.11.1984, to quash the same
\nas illegal and pass such further orders.\n<\/p>\n
        13.  In W.P.No:  13375 of 1995 the petitioner has prayed for the issue
\nof a writ of certiorari  calling  for  the  records  of  the  State  Transport
\nAppellate  Tribunal,  Madras  made  in  Appeal  NO.417 of 1984 dated 9 .3.1995
\nconfirming the order of the Regional Transport Authority, Periyar District  at
\nErode  made  in R.No.20227\/A3\/92 dated 26.3.1993, to quash the same as illegal
\nand pass such further orders.\n<\/p>\n
        14.  In W.P.No:  13382 of 1995 the petitioner has prayed for the issue
\nof a writ of certiorari  calling  for  the  records  of  the  State  Transport
\nAppellate  Tribunal,  Madras  made  in  Appeal  NO.803  of 1993 dated 4.4.1995
\nconfirming the order of the Regional Transport Authority,  Salem  District  at
\nErode  made in R.No.42689\/B1\/93 dated 22.11.1993, to quash the same as illegal
\nand pass such further orders.\n<\/p>\n
        15.  In W.P.No:  13365 of 1995 the petitioner has prayed for the issue
\nof a writ of certiorari  calling  for  the  records  of  the  State  Transport
\nAppellate  Tribunal,  Madras  made  in  Appeal NO.642 of 1993 dated 2 2.5.1995
\nconfirming the order of the  Regional  Transport  Authority,  Namakkal,  Salem
\nDistrict  made  in  R.No.108885\/C1\/92  Item No.1\/3-8-1993 to quash the same as
\nillegal and pass such further orders.\n<\/p>\n
        16.  In W.P.No:  13366 of 1995 the petitioner has prayed for the issue
\nof a writ of certiorari  calling  for  the  records  of  the  State  Transport
\nAppellate  Tribunal,  Madras  made  in  Appeal  NO.641 of 1984 dated 22.5.1995
\nconfirming the order of the  Regional  Transport  Authority,  Namakkal,  Salem
\nDistrict  made  in  R.No.10884\/C1\/92,  Item  No.2\/3-9-93, to quash the same as
\nillegal and pass such further orders.\n<\/p>\n
        17.  In W.P.No:  13366 of 1995 the petitioner has prayed for the issue
\nof a writ of certiorari  calling  for  the  records  of  the  State  Transport
\nAppellate  Tribunal,  Madras  made  in  Appeal NO.641 of 1984 dated 2 2.5.1995
\nconfirming the order of the  Regional  Transport  Authority,  Namakkal,  Salem
\nDistrict  made  in  R.No.10884\/C1\/92,  Item  No.2\/3-9-93, to quash the same as
\nillegal and pass such further orders.\n<\/p>\n
        18.  In W.P.No:  13334 of 1995 the petitioner has prayed for the issue
\no!f a writ of certiorari  calling  for  the  records  of  the  State  Transport
\nAppellate  Tribunal,  Madras  made  in  Appeal  NO.661  of 1991 dated 7.4.1995
\nconfirming the order of the  Regional  Transport  Authority,  Namakkal,  Salem
\nDistrict made in R.No.9717\/A3\/93, dated 13.9.1993 to quash the same as illegal
\nAand pass such further orders.\n<\/p>\n
        19.  In W.P.No:  13335 of 1995 the petitioner has prayed for the issue
\nof  a  writ  of  certiorari  calling  for  the  records of the State Transport
\nAppellate Tribunal, Madras made in Appeal NO.663  of  1993  dated  2  4.2.1995
\nconfirming  the order of the Regional Transport Authority, Periyar District at
\nErode made in R.No.6458\/A3\/93, dated 13.9.1993 to quash the  same  as  illegal
\nand pass such further orders.\n<\/p>\n
        20.  In W.P.No:  17410 of 1995 the petitioner has prayed for the issue
\nof  a  writ  of  certiorari  calling  for  the  records of the State Transport
\nAppellate Tribunal, Madras made in Appeal NO.386  of  1994  dated  1  9.7.1995
\nconfirming  the  order  of  the  Regional Transport Authority, Namakkal, Salem
\nDistrict made in R.No.70163\/A2\/93,  dated  23.8.1994  to  quash  the  same  as
\nillegal and pass such further orders.\n<\/p>\n
        21.  In W.P.No:  17504 of 1995 the petitioner has prayed for the issue
\nof  a  writ  of  certiorari  calling  for  the  records of the State Transport
\nAppellate Tribunal, Madras made in Appeal  NO.294  of  1993  dated  9  .3.1995
\nconfirming  the  order  of  the Regional Transport Authority, Periyar District
\nmade in R.No.64395\/B3\/92, dated 17.3.1993 to quash the  same  as  illegal  and
\npass such further orders.\n<\/p>\n
        22.  In W.P.No:  17505 of 1995 the petitioner has prayed for the issue
\nof  a  writ  of  certiorari  calling  for  the  records of the State Transport
\nAppellate Tribunal, Madras made  in  Appeal  NO.48  of  1994  dated  22.5.1995
\nconfirming  the  order  of  the Regional Transport Authority, Periyar District
\nmade in R.No.3167\/B2\/92, dated 30.11.1993 to quash the  same  as  illegal  and
\npass such further orders.\n<\/p>\n
        23.  In W.P.No:  17506 of 1995 the petitioner has prayed for the issue
\nof  a  writ  of  certiorari  calling  for  the  records of the State Transport
\nAppellate Tribunal, Madras made in  Appeal  NO.40  of  1994  dated  7.4  .1995
\nconfirming  the  order  of  the Regional Transport Authority, Periyar District
\nmade in R.No.10078\/B3\/93, dated 30.11.1993 to quash the same  as  illegal  and
\npass such further orders.\n<\/p>\n
 ^\n<\/p>\n
        24.  In W.P.No:  17507 of 1995 the petitioner has prayed for the issue
\nof  a  writ  of  certiorari  calling  for  the  records of the State Transport
\nAppellate Tribunal, Madras made  in  Appeal  NO.27  of  1994  dated  22.5.1995
\nconfirming  the  order  of  the Regional Transport Authority, Periyar District
\nmade in R.No.10078\/B3\/92, dated 30.11.1993 to quash the same  as  illegal  and
\npass such further orders.\n<\/p>\n
        25.  In W.P.No:  17508 of 1995 the petitioner has prayed for the issue
\nof  a  writ  of  certiorari  calling  for  the  records of the State Transport
\nAppellate Tribunal, Madras made in Appeal NO.377  of  1993  dated  10  .4.1995
\nconfirming  the order of the Regional Transport Authority, Salem District made
\nin R.No.B1\/18020\/74, dated 8.4.1993 to quash the same as illegal and pass such
\nfurther orders.\n<\/p>\n
        26.  According to the petitioner the  first  respondent  notified  the
\nscheme  in  respect  of  stage  carriages  for the area comprising the revenue
\nDistrict of Periyar (Erode) under section 99 of the Motor Vehicles  Act,  1988
\nwhich  was  published  in  the  Government  Gazette  dated  27th  May 1994 and
\npublished in the local Daily “Dina Malar” on 3.6.19 94.  The petitioner  filed
\nobjections  in  writing  within  time before the Secretary to Government, Home
\n(Transport) Department.  The said Secretary heard  the  petitioner’s  counsel.
\nThe  draft scheme has been approved under section 100(2) of the Motor Vehicles
\nAct, 1988 by G.O.  Ms.No.749 Home (Transport III) Department, dated  23.5.1995
\nand published in Government Gazette dated 24.5.1995.  The said approved scheme
\nas  notified  affects  the  petitioner  in  that  not  only  all  the  pending
\napplications for  grant  were  rejected,  but  also  its  operations  will  be
\nrestricted.   The  approval  of  the scheme it is stated seriously affects the
\npetitioner.  Hence the present challenge.\n<\/p>\n
        27.  The petitioner in each of the writ  petition  challenges  various
\nNotifications  approving  the  scheme  and notifying the approved scheme under
\nsection 100 (2) of  the  Motor  Vehicles  Act.    It  is  contended  that  the
\nrespondents have not communicated the reasons for rejecting the objections and
\napproving the  scheme.  The failure to communicate the reasons to the objector
\nvitiates the approval of the scheme.  Rule 283(2) of the Motor Vehicles  Rules
\n1989, provides for maintenance of records and communication of the reasons for
\noverruling the  objections  and  approving  the  impugned  scheme.  Despite an
\napplication being made for the grant of the proceedings,  the  respondent  has
\nnot  furnished  the  reasons  nor  communicated a speaking order passed by the
\nrespondent while rejecting the objections and approving the  scheme.    It  is
\nimpossible for the petitioner to canvass the merit or demerits of the approval
\nwithout the  respondent  communicating  a copy of the orders.  The proceedings
\nbeing quasi judicial, the respondents should have acted fairly and  ought  not
\nto have acted with illegality and biased approach, while approving the scheme.\n<\/p>\n
        28.   Section  99  of  the  motor Vehicles Act 1988 empowers the State
\nGovernment to formulate scheme to be  run  and  operated  by  State  Transport
\nUndertakings  as  against the provisions of the 1939 Motor Vehicles Act, which
\nenabled the State Transport Undertaking to formulate the Scheme.\n<\/p>\n
        29.  It is contended that the Scheme has not been  formulated  by  the
\nState Government, but it has been formulated by the Transport Department which
\nis an  illegality.    The  respondents while approving the scheme by holding a
\nhearing under section 100 of the  Motor  Vehicles  Act,  1988  is  sitting  in
\njudgment over a lis between State Transport Undertakings and Private Operators
\nwhich  is  a quasi judicial and the failure to follow the procedure prescribed
\nin this respect vitiates the approval.\n<\/p>\n
        30.  The Motor Vehicles Act,  1988  contemplates  formulation  of  the
\nScheme  under the Act by the Government, but in the present case such a scheme
\nhas been formulated by the Home Secretary (Transport Department).    The  Home
\nSecretary  has  not  been conferred with the power to formulate a draft scheme
\nand in the absence of any rules, all the draft schemes  published  lack  legal
\nvalidity  and  therefore  they cannot be proceeded further The approval of the
\nscheme by the Home Secretary would amount to his being  a  Judge  of  his  own
\ncause and therefore it is violative of principles of natural justice, vitiated
\nby bias, arbitrary and violative of Art.14.\n<\/p>\n
        31.   Nextly,  it  is  contended that the area has not been defined or
\nnotified.  In the absence of any Notification under the relevant provisions of
\nThe Motor Vehicles Act, the area scheme  notified  is  wholly  illegal.    The
\nfailure  to  consider  and  deal with the objections is fatal to the draft and
\napproved schemes.  There is no warrant at all to frame a area scheme.   In  an
\narea  scheme  grant  of  permit  to  private  operator  is  prohibited  and no
\npreference could be shown in favour of a State Transport Undertaking which  is
\nnot operating on the route.  Such scheme cannot be considered as one framed to
\nsecure efficient, economic and properly coordinated road transport service.\n<\/p>\n
        32.   It  is contended that vast difference or discrepancy between the
\nmaximum and minimum number of stage  carriages  proposed  or  approved  to  be
\noperated  would  be  fatal  to  the scheme as it is not in the interest of the
\ntraveling public.  Therefore the scheme is liable to  be  struck  down.    The
\napproval  of the scheme is discriminatory as it does not eliminate all private
\noperators in the scheme area.   The  provisions  to  permit  existing  private
\noperators  on  the  area  and  did not permit the others is discriminatory and
\nviolative of Art.14.  Either private operators should be allowed or should  be
\nexcluded totally.    To permit the existing private operators alone to operate
\nwould be perpetuating their monopoly in the area.\n<\/p>\n
        33.  The Motor Vehicles Act, 1988 and the Rules framed thereunder  has
\nset  out  liberal  policy  with  respect  to  stage carriage operation both by
\nprivate operators and State Undertaking  and  therefore  it  is  arbitrary  to
\nexclude or  eliminate  fresh  grant  or  permits  to  private  operators.  The
\nproposed and approved area scheme has affected by taking away the  fundamental
\nrights   of   a  citizen  and  therefore  it  is  liable  to  be  declared  as
\nunconstitutional.  The scheme approved  by  the  Secretary,  Home  (Transport)
\nDepartment, are not placed on the floor of the Legislative Assembly, nor it is
\nsubjected  to  direct  voting  of  the Legislature and this is contrary to the
\nconstitutional guarantee.  Further in any event there is total non application
\nof mind by the respondents as the respondents have not  applied  its  mind  to
\nfind  out  whether  the  scheme would achieve the purpose, whether it would be
\neconomic or efficient or whether there could be guaranteed operation and  this
\nfailure vitiates  the approved schemes.  The State Transport Undertakings have
\nalready sustained huge loss as it is uneconomic for them to  operate  at  high
\ncost and  therefore  it  is not in public interest.  There is complete lack of
\ncoordination and this also vitiates the proposal as well as  approval  of  the
\nschemes.\n<\/p>\n
        34.  In all the writ petitions, the above are the common averments set
\nout  in  the  supporting  affidavits  and  the respondents have filed a common
\ncounter affidavit.  The batch of writ petitions have  been  filed  challenging
\nthe  District-wise  area  scheme for operation of stage carriages by the State
\nTransport Undertakings by various Notifications published in the Gazette.  The
\nGovernment announced its policy of Nationalisation.  According to  the  policy
\nthe entire Passenger Transport services would be nationalised.  The Tamil Nadu
\nStage  Carriages  Contract  Carriages  (Acquisition)  Act,  1973 was passed to
\nachieve the said object.  The said enactments were challenged.  The High Court
\ndeclared it unconstitutional.  But the Apex Court reversed  the  judgement  of
\nthe High  Court  and  declared it valid.  After 1976 there was a change in the
\npolicy of nationalisation and small operators who were  already  operating  in
\nthe  field  for  a  long  time  were  allowed  to run their services in public
\ninterest.  The Tamil Nadu Stage Carriages and Contract Carriages (Acquisition)
\nAmendment Act, 1984 was introduced exempting small bus operators holding  five
\nor less  stage carriage permits from the provisions of the said Act.  The Apex
\nCourt during 1987 held that  private  operators  other  than  those  who  were
\nspecifically  permitted  to  operate  while  approving  the  scheme, could not
\noperate their buses either on the notified  routes  or  on  the  routes  which
\noverlap notified  routes.    In  order  to  protect the small operators and to
\ncontinue their services, the Tamil Nadu Motor  Vehicles  (Special  Provisions)
\nAct, 1987  was  passed  by the State Legislature on 13.11.198 7.  As seen from
\nthe provisions of the said special enactment the State Government  decided  to
\nallow  private  operators  existing and operators for the period from 4.6.1976
\nand 30.6.1990 to continue  the  services  in  the  existing  rules  in  public
\ninterest.   The existing private operators in the approved scheme routes alone
\nwere allowed to continue their limited operation.\n<\/p>\n
        35.   Chapter  V  of  the  Motor  Vehicles  Act,  1988   enables   for
\nliberalisation  of  Private  Sector  for  operation of road transport service.
\nChapter VI of the Act specifically provides for  operation  of  bus  transport
\nservices by the State Transport Undertakings either to the complete or partial
\nexclusion of others.  The State could notify the schemes for operation of such
\ncarriages  by State Transport Undertakings and restrict the grant of permit to
\nother persons in respect of the notified areas under  the  provisions  of  the
\nsaid Chapter.    To  maintain  efficient,  adequate,  economical  and properly
\ncoordinated road transport services the Government  in  the  interest  of  the
\npublic  notified the State Transport undertakings in the Districts in addition
\nto the existing private stage carriage operators  protected  under  the  Tamil
\nNadu   Motor   Vehicles   (Special  Provisions)  Act,  1992,  State  Transport
\nUndertakings of other States and the stage  carriage  operators  operating  on
\ninter state  routes  whose permits are covered by inter state agreements.  The
\nState Transport Undertakings are running many services in uneconomical sectors
\nand unserved areas as well.  As a social welfare measure of the  school  going
\nchildren  are  allowed  to  travel in the City and Town Routes on concessional
\nfares.  Free Transport facility is allowed to the blind.\n<\/p>\n
        36.  Under Section 99 of  the  Motor  Vehicles  Act,  1988  Government
\nformulated  the  District  wise  draft  area  scheme  for  operation  of stage
\ncarriages road transport services by State Transport Undertakings and the same
\nwas published in the Government Gazette on 27.5.1994 by following the relevant
\nprovisions of the Motor Vehicles Act and the Tamil Nadu Motor  Vehicles  Rules
\n1989.   The  proposal  was  considered and formulated up to the level of Chief
\nMinister based on the policy adopted by the  Government.    The  Secretary  to
\nGovernment did not formulate the proposal.\n<\/p>\n
        37.   According  to  Rule  12(1) of The Tamil Nadu Government Business
\nRules every order or instrument of the Government shall be  signed  either  by
\nthe  Secretary  or  by  Additional  Secretary  or  Joint  Secretary  or Deputy
\nSecretary or under Secretary.  By virtue of the said Rules the very draft area
\nscheme formulated by the Government under Section 99 of the Act was signed  by
\nthe Secretary to Government on behalf of the Government.  The Government Rules
\nhave not been amended authorising the Secretary to Government to formulate the
\nDraft area scheme under Section 99 of the Motor Vehicles Act, 1988.\n<\/p>\n
        38.   According to Section 100(2) of the Motor Vehicles Act, the State
\nGovernment after considering the objections and after affording opportunity to
\nthe Objectors or his representatives and  the  representatives  of  the  State
\nTransport  Undertakings  to  be  heard  in  the matter, approve or modify such
\nproposal.  In terms of Section 102(1) of the  Motor  Vehicles  Act,  1988  the
\nState  Government  may  at any time if it considers necessary modify or cancel
\nany approved scheme after giving notice to State  Transport  Undertakings  and
\nany other person who is likely to be affected by the proposed modification and
\ncancellation.\n<\/p>\n
        39.   To  comply with Section 100(2) of the Act the representatives of
\nthe State Transport Undertakings, objectors and other  authorised  agents  are
\nrequired  to  be  heard  by the Authority empowered by the Government by their
\nRules of Business.  In  terms  of  Business  Rules  the  hearing  was  by  the
\nSecretary  to  Government  and  under Section 97 of the Motor Vehicles Act the
\npowers and and functions which the State Government may exercise  and  perform
\nunder  Section  100  and  102  of  the  Act and the Rules relating to shall be
\nexercised and performed by the Secretary to the State Government in  the  Home
\nDepartment  and  cases  relating  to  such  powers  and functions of the State
\nGovernment under Section 100 0and 102 and the Rules need not be  submitted  to
\nthe Minister in charge.  The objections including the objections received even
\nafter  one month from the date of publication of the draft area scheme and the
\ncounter statements the State Transport Undertakings or other authorities  have
\nbeen  considered  and  objections  were  heard  in person under Rule 24 of the
\nBusiness Rules in compliance with  the  statutory  requirement  under  section
\n100(2)  of  the  Act  by  the  Secretary to Government in the Home Department.
\nThereafter the draft scheme was approved to the complete  exclusion  of  other
\npersons  other  than  State  Transport  Undertakings  of  other States and the
\nexisting permits of small operators  as  provided  in  the  Tamil  Nadu  Motor
\nVehicles  (  Special  Provisions)  Act,  1992  and  permits  of  such carriage
\noperators operating on interstate routes whose  permits  are  covered  by  the
\ninter state agreements.\n<\/p>\n
        40.   For  the  following  twenty  Districts schemes were approved and
\npublished in the Government Gazette on 24.5.1995:-\n<\/p>\n
(1) Chengalpattu,
\n(2) North Arcot,
\n(3) Thiruvanamalai
\n(4) Villupuram,
\n(5) South Arcot
\n(6) Dharmapuri,
\n(7) Salem,
\n(8) Coimbatore
\n(9) Periyar
\n(10)Madurai,
\n(11)Dindigul
\n(12)Trichirappalli,
\n(13)Nagapattinam
\n(14)Thanjavur
\n(15)Pudukottai,
\n(16)Ramanathapuram
\n(17)Virudhunagar
\n(18)Chidambaranar
\n(19)Tuticorin and
\n(20)Tirunelveli.\n<\/p>\n
        41.  The above Notification was also published in local Newspapers  in
\nregional language having circulation in the area to be covered by such scheme.
\nThere  is  no  official  bias  and  the principles of natural justice has been
\nfollowed and it has not been offended in any way, on the approval given to the
\ndraft scheme by the Secretary to Government in the Home Department.\n<\/p>\n
        42.  The contention that there  is  no  application  of  mind  by  the
\nauthority concerned  is untenable and actually incorrect.  The contention that
\nthe objections advanced  at  the  time  of  personal  hearing  have  not  been
\nconsidered  by  the appellate authority and the authority failed to assign any
\nreason for turning down the claim, it is contended that there are no merits in
\nsuch a contention.  The entire objections have been taken  into  consideration
\nas well  as  their  arguments  of the respective counsel.  A detailed speaking
\norder to the defence raised in the objection have been passed.  In the hearing
\nthe objectors as well as the contention of State  Transport  Undertakings  and
\nthe contention  of  the  aggrieved were heard and overruled.  The draft scheme
\nhas been approved after detailed consideration and taking  into  consideration
\nof the  entire  facts and the relevant materials.  In terms of Sub Rule (2) of
\nRule 283 of the Tamil Nadu Rules 1989 record of  hearing  of  proceedings  was
\ncompiled  under  Rule  284 as soon as the record of proceedings was completed.
\nThe Scheme was approved and published in the Government Gazette.  There is  no
\nprovision  in  the  Act or the Rules to furnish copy of the proceedings of the
\nhearing and the decision or speaking order passed by the Home Secretary  while
\nconsidering the  objections.  The construction placed on expression “route and
\narea” are incorrect.  In terms of Section 99 of the Motor  Vehicles  Act  1988
\nthe  State  Government  may  formulate  the proposal regarding a Scheme giving
\nparticulars and nature of services proposed and all other relevant particulars
\nrelating thereto.  In the draft scheme itself the area of operation  of  buses
\nhas  been  specifically  defined  as  the  area  comprising the entire revenue
\ndistrict concerned and no separate notification is required in this respect as
\nsought to be contended.  There is no provision in the Motor  Vehicles  Act  or
\nthe  Rules  to  place  the  approved  scheme  on  the table of the Legislative
\nAssembly.  The particulars set out in Column (4) and (5) of the approved  area
\nscheme  are  furnished  after assessing the actual need in the interest of the
\ntraveling public and the present  trend.    So  also  the  maximum  number  of
\nvehicles and  trips  proposed  to  be  performed.   The approved scheme is not
\nviolative of Art.14  and  19(1)(g)  of  the  Constitution.    The  Scheme  was
\nformulated  and  approved  in  accordance  with  the  provisions  of the Motor
\nVehicles Act, 1988 and it is in the interest of the public.  It  is  contended
\nthat  there  are no merits in all these writ petitions and the same deserve to
\nbe dismissed.\n<\/p>\n
        43.  Identical counter has been filed in W.P.Nos.10854 to 10865  of  1
\n995 etc., batch.\n<\/p>\n
        44.   The  learned  counsel  Mr.S.Varadhachari made his submissions on
\nbehalf of the petitioners and his contentions have been adopted by  the  other
\ncounsel  excepting  their  reiterating  the  contentions  and  basis  of those
\ncontentions.  Per contra, the  learned  Advocate  General  appearing  for  the
\nrespondents  contended  that  there is no illegality in the procedure adopted,
\nproposal of the scheme, notification of the scheme, hearing  and  approval  of
\nthe scheme.  It is also contended that the various contentions advanced by the
\npetitioners  are  devoid of merits and untenable as well as unsustainable both
\nin law and on facts.\n<\/p>\n
        45.  The petitioners have also filed a reply to the counter affidavit,
\nbut it is not necessary to refer to the same.\n<\/p>\n
        46.  The learned counsel for the petitioners submitted the details  of
\narea  scheme  and  drew  the attention of the court to Chapter VI of The Motor
\nVehicles Act and advanced various contentions and submitted  arguments,  which
\nwill be considered at the relevant time.\n<\/p>\n
        47.   Mr.S.C.Palanisami, learned counsel appearing for few of the writ
\npetitioners categorized the writ petitions as hereunder:-\n<\/p>\n
        (i)     Where the area scheme has been approved, but stayed, operators
\nare plying  their  vehicles  and  the  details  of  the  writ  petitions  are:
\n(1)10862, 10864, 10865, 10875, 10876 and 10880 of 1995.\n<\/p>\n
        (ii)    Writ Petitions challenging the area scheme are:  13364, 13366,
\n1 3373, 13383 and 17480 of 1995.\n<\/p>\n
        (iii)Writ  Petitions  challenging  the Order of the Regional Transport
\nAuthority who has rejected grant of permit on the ground of  area  scheme  and
\nconfirmed by  the  State  Transport  Appellate  Tribunal  are:  13 334, 13335,
\n13365, 13374, 13375 13382, 17504 to 17508 of 1995.\n<\/p>\n
        48.  Mr.S.C.Palanisamy, learned counsel  also  adopted  the  arguments
\nadvanced by  the  other  learned counsel.  Though the writ petitions are being
\ncategorised the contentions advanced are identical and they will be  taken  up
\nfor  consideration  after  referring  to the statutory provisions of the Motor
\nVehicles Act and the Rules.\n<\/p>\n
        49.  Before considering the points for consideration it  is  essential
\nto  refer to statutory provisions of the Motor Vehicles Act, the Rules and few
\npronouncements of the Apex Court.  Chapter VI of the Motor Vehicles Act,  1988
\nprovides the special provisions relating to State Transport undertakings.  The
\nprovisions of  Chapter VI has overriding effect.  Chapter VI overrides Chapter
\nV  and  other  laws  and  it  shall  have  effect   notwithstanding   anything
\ninconsistent therewith contained in Chapter V or in any other law for the time
\nbeing in force.  Section 107 of the Act confers powers on the State Government
\nto make  rules  for  the  purpose  of carrying out Chapter VI of the Act.  The
\nrules have also been framed.\n<\/p>\n
        50.  In Madan Mohan Rao Vs.  Union of India, reported in 2002 (6)  SCC
\n348,  the  Apex  Court  held  that  Chapter VI of the Motor Vehicles Act, 1988
\ncontains special provisions relating to the State Transport  Undertakings  and
\nprevisions  of  the said Chapter and the Rules and orders made thereunder have
\nbeen given overriding effect notwithstanding anything  inconsistent  therewith
\ncontained  in  Chapter  V  or  any other law for time being in force or in any
\ninstrument having effect by virtue of any such order or law.  Section 99 deals
\nwith preparation and publication of proposed Road Transport Service  of  State
\nUndertakings.   Section  100 provides for recording objections to the proposal
\nand its disposal.  While considering the said Sections, in Madan Mohan Rao Vs.
\nUnion of India, the Apex Court held thus:-\n<\/p>\n
“21.  From the provisions  in  Section  99(1)  it  is  clear  that  the  State
\nGovernment is mandated to form an opinion that for the purpose of providing an
\nefficient,  adequate,  economical  and  properly  coordinated  road  transport
\nservice it is necessary in the public interest that road transport services in
\ngeneral or any particular class of such services in relation to  any  area  or
\nroute  or  operation thereof should be run and operated by the State transport
\nundertaking whether to the exclusion, complete or partial, of other persons or
\notherwise before publishing the proposal in the Official Gazette and in  local
\nnewspapers.   In  sub-section  (1)  of  Section 100 it is provided that on the
\npublication of any proposal regarding a scheme in the Official Gazette and  in
\nnewspapers,  any  person may file objections to it before the State Government
\nwithin 30 days from the date of its publication in the Official Gazette.\n<\/p>\n
22.  In sub-section (2) a provision is made that  the  State  Government  may,
\nafter  considering  the  objections  and  after  giving  an opportunity to the
\nobjector or his representatives and the representatives of the State transport
\nundertaking to be heard in the matter, if they so desire,  approve  or  modify
\nthe proposal.\n<\/p>\n
23.   On  reading the aforementioned statutory provisions together it is clear
\nthat the objection  which  may  be  raised  by  any  person  to  the  proposed
\nnationalization  scheme  must  relate  to  the  matters  about which the State
\nGovernment is required to form an opinion under the  statute  i.e.    for  the
\npurpose  of  providing an efficient, adequate, economical and proper transport
\nservice.  It is necessary in the  public  interest  that  the  road  transport
\nservices  on  the  routes  should  be  run and operated by the State transport
\nundertakings  to  the  complete  or  partial  exclusion  of   other   persons.
\nTherefore,  it follows that the objection to be filed by an objector should be
\nrelated to only these relevant factors and he is not  entitled  to  raise  any
\nother  objection  which  is irrelevant and extraneous to the provisions of the
\nstatute.”\n<\/p>\n
        51.  In the same pronouncement  the  Apex  Court  also  held  that  no
\nprivate  operator  can operate his services on any part or portion of notified
\narea or notified route unless authorised so to do by the terms of  the  Scheme
\nitself.  While following the Constitution Bench Judgment in Adarsh Travels Bus
\nServices Vs.  State of U.P.  (1985 (4) SCC 557), the Supreme Court held thus:-\n<\/p>\n
“7.   A  careful  and  diligent  perusal  of Section 68-C, Section 68-D(3) and
\nSection 68-FF in the light of the definition of the  expression  ‘  route’  in
\nSection  2(28-A)  appears  to  make  it manifestly clear that once a scheme is
\npublished under Section 68-D in relation to  any  area  or  route  or  portion
\nthereof,  whether  to  the  exclusion, complete or partial of other persons or
\notherwise, no person other than the State transport undertaking may operate on
\nthe notified area or notified route except as provided in the  scheme  itself.
\nA  necessary  consequence  of these provisions is that no private operator can
\noperate his vehicle on any part or portion of  a  notified  area  or  notified
\nroute unless  authorised  so  to do by the terms of the scheme itself.  He may
\nnot operate on any part or portion of the notified route or area on  the  mere
\nground that the permit as originally granted to him covered the notified route
\nor area.   ?    The  question is one of weighing in the balance the advantages
\nconferred on the public by the nationalization of the route  C-D  against  the
\ninconveniences  suffered by the public wanting to travel straight from A to B.
\nOn the other hand it is quite well known that under the guise of the so-called
\n‘corridor  restrictions’  permits  over  longer  routes  which  cover  shorter
\nnotified routes or ‘ overlapping’ parts of notified routes are more often than
\nnot  misutilised  since  it  is well-nigh impossible to keep a proper check at
\nevery point of the route.  It is also well known that often times permits  for
\nplying  stage carriages from a point a short distance beyond one terminus to a
\npoint a short distance beyond another terminus of a notified route  have  been
\napplied  for  and  granted  subject  to the so-called ‘ corridor restrictions’
\nwhich are but mere ruses or traps to  obtain  permits  and  to  frustrate  the
\nscheme.  If indeed there is any need for protecting the travelling public from
\ninconvenience  as  suggested  by the learned counsel we have no doubt that the
\nState  transport  undertaking  and  the  Government  will  make  a  sufficient
\nprovision  in  the  Scheme  itself  to avoid inconvenience being caused to the
\ntravelling public.”\n<\/p>\n
        52.  In Gajraj Singh Vs.  State of U.P.  Reported in 2001(5) SCC  762,
\nit has been held thus:-\n<\/p>\n
        “8.   It  is  pertinent  to  note  that  Section  68-D of the 1939 Act
\nprovided for filing of objections within 30 days of  the  publication  of  the
\nproposed  scheme  and  consideration of the objections by the State Government
\nafter  giving  an  opportunity  of  hearing  to   the   objectors   or   their
\nrepresentatives and the representatives of the State transport undertaking.  A
\nsimilar provision for filing of the objections and hearing thereon is included
\nin Section  100  of  the  new Act.  The provision for filing of objections and
\nhearing to base the decision thereon, as contained in the old Act,  being  not
\ninconsistent with the successor provision rather being pari materia therewith,
\ncontinues to  survive.    The  provisions  for  nationalization  of routes and
\nexcluding operation on such routes by private operators  consequent  thereupon
\nare  a  reasonable  restriction in public interest on the fundamental right to
\ncarry on trade or business under Article 19(1)(g) of the Constitution.  It  is
\non  the  hearing  of the objections that the competent authority would form an
\nopinion on the question whether the proposed nationalization would  provide  a
\nconvenient,  adequate,  economical  and  properly  coordinated  road transport
\nservice and therefore it was necessary to do  so  in  public  interest.    The
\nscheme may  then  be  annulled,  modified  or  approved.    The  right to file
\nobjections and to secure hearing thereon is  statutorily  provided  and  is  a
\nvaluable right of the private operators who would be eliminated, completely or
\npartially,  from  operating on the routes covered by the scheme depending upon
\nhow and to what extent it is approved.  This Court did not and could not  have
\ntaken  away  such  a  valuable  right  of hearing on the objections which were
\nalready before the competent authority.”\n<\/p>\n
        53.  As laid down in Madan Mohan Rao’s case,  the  writ  petitions  on
\nhand  are  to  be  tested  in  the  light  of  the principles laid down in the
\naforementioned decided cases.  When once this court comes  to  the  conclusion
\nthat  the  respondents  have afforded adequate opportunity to the objectors to
\nplace their cases before the authority who conducted the hearing and the  said
\nauthority  has  taken  into  consideration  of  the  relevant  materials while
\nrejecting the objections, then this court may have  to  sustain  the  approved
\nscheme  and consequently reject the contentions advanced in this batch of writ
\npetitions.\n<\/p>\n
        54.  Incidentally, it is  pointed  out  that  the  Supreme  Court  had
\nconsidered  the  scope  of Tamil Nadu Motor Vehicles (Special Provisions) Act,
\n1992 in Tilakavathy  Vs.    Regional  Transport  Authority,  Periyar  District
\nreported  in  1995  (1)  SCC 456 and the legal position in respect of the said
\nSpecial enactment is by now well settled.\n<\/p>\n
        55.  In this batch of writ petitions, the following points  arise  for
\nconsideration:-\n<\/p>\n
        (A)     In  the  absence  of  a Notification under section 2(1) of the
\nMotor Vehicles Act defining the area or specifying the area by a Notification,
\nWhether the respondents could propose and approve a scheme under Chapter VI of
\nthe Act?\n<\/p>\n
        (B)     Who propsoed the draft scheme?\n\n        (C)     Whether the hearing conducted by the Secretary to Government (\n<\/pre>\n
Home Department) and his overruling the objections and approving the scheme is
\nvitiated by bias,  in  that  the  Home  Secretary  has  proposed  the  scheme,
\nconducted  the  hearing  and  overruled  the  objections  before approving the
\nscheme?\n<\/p>\n
        (D)     Whether the failure to communicate a copy of  the  proceedings
\nof  the  respondents  overruling the objections and approving the draft scheme
\nvitiates the impugned Notification?\n<\/p>\n
        (E)     Whether the subsequent modification  of  the  approved  scheme
\nrenders  the scheme inoperative or the scheme ceased and what is the effect of
\nsubsequent modifications?\n<\/p>\n
        (F)     Whether the vast difference with respect to  the  minimum  and
\nmaximum number of services to be operated vitiates the scheme?\n<\/p>\n
        (G)     Whether  the petitioners in W.P.Nos.10854; 11410; 11411; 11412
\nof 1992 are entitled to declaration as prayed for?\n<\/p>\n
        (H)     Whether  these  writ   petitions   have   become   infructuous
\nconsequent   to   amendment  of  the  approved  scheme  as  contended  by  the
\nRespondents?\n<\/p>\n
        (I)     Whether the writ petitioners who have either failed  to  raise
\nobjections or raise objections belatedly could maintain writ petitions?\n<\/p>\n
        (J)     Whether  the  writ  petitions  are  liable  to be dismissed as
\nbelated and petitioners are guilty of latches?\n<\/p>\n
        (K)     To what relief if any?\n<\/p>\n
        56.  Mr.Krishnappan, learned counsel appearing for some  of  the  writ
\npetitioners  (W.P.Nos:10854,  11410, 11411 of 11412 of 1995) advanced separate
\narguments placing reliance on Tamil Nadu Act 41 of  1992  and  contended  that
\npermits  granted in favour of the petitioners in those four writ petitions are
\nsame and therefore a declaration has to be granted as prayed for.\n<\/p>\n
POINT – H\n<\/p>\n
        57.  The learned  Advocate  General  raised  a  preliminary  objection
\ncontending  that  the  approved  area  scheme  has been modified or amended by
\nanother scheme by a subsequent Notification and therefore the present batch of
\nwrit petitions have become infructuous and if at all, the petitioners have  to
\nchallenge the  modified  or  approved  scheme.    The  objection raised by the
\nlearned Advocate General though attractive cannot  be  sustained.    The  writ
\npetitions are  pending  since  1995.    The  amendment  was  introduced to the
\napproved scheme so as to enable the  Mini  Bus  Operators  to  operate  for  a
\nlimited distance  on  the  approved  scheme.    Excepting  this  amendment the
\nsubstratum of the approved scheme remains the same and there is no alteration.
\nAs there is no alteration of the approved scheme in substance,  the  objection
\nadvanced by the learned Advocate General cannot be sustained.\n<\/p>\n
        58.   The  Learned Advocate General referred to an unreported order of
\nK.Govindarajan, J., as well as an unreported judgement of M.M.  Ismail,J.,  as
\nhe then was.    On  a  consideration  of the judgment of M.M.  Ismail,J., this
\ncourt is of the considered view that no such dictum has been laid down by  the
\nlearned Judge.  It is represented that K.  Govindarajan,J., disposed of number
\nof  writ petitions on the reasoning that there has been a subsequent amendment
\nto the scheme and that  the  individuals  have  to  challenge  the  scheme  as
\nmodified.  The  learned  Judge has passed the following order in W.P.NO:  4047
\nand 4048 of 1998:-\n<\/p>\n
        “2.     The learned counsel appearing for the impleading party has now
\nbrought to my notice that the said scheme has been modified by the  subsequent
\nscheme in  G.O.Ms.No.1529  Home  (I and Part III) dated 17.11.19 99.  When the
\nimpugned scheme was modified by the above said  scheme,  nothing  survives  in
\nthis writ petition.”\n<\/p>\n
        59.   The  above order appears to have been passed on the premise that
\nthe approved scheme has been modified by a  subsequent  scheme  and  therefore
\nnothing  survives  in the said writ petitions challenging the original scheme.
\nIn all probability the entire scheme has been replaced by the amended  scheme.
\nThis is not the factual position.  That apart, I do not find any discussion in
\nthe said order and the order has been passed either based upon consent or on a
\njoint representation.    When the approved scheme has been challenged which is
\nthe subject matter of challenge in  the  pending  writ  petitions,  such  writ
\npetitions cannot be rendered futile merely there is a minor modification while
\nthe Original area Scheme remains intact and being operative and in force.\n<\/p>\n
        60.   That  apart, the petitioners have challenged the approved scheme
\nwhich are being enforced or operative in every respect even as of today.    So
\nthe  validity  of  such schemes have to be tested as was approved and notified
\nand not with reference to the  latter  negligible  modification  of  the  said
\nscheme.  With respect this court holds that the view of K.Govindarajan,J., has
\nno application to the facts of the case.  Hence this court is not persuaded to
\nsustain the said objection and it is overruled.\n<\/p>\n
        61.  Moreover, in the case on hand modification of the scheme has been
\napproved  by  following  the  procedure  so as to enable the operation of mini
\nbusses, which action is the subject matter  of  pending  Writ  Appeals.    The
\nmodification  of  the Scheme ex facie do not show that the original scheme has
\nbeen altered or changed, much less, so violently to hold that nothing survives
\nin view of the modification of the scheme.   The  entire  approved  scheme  is
\nintact,  excepting  a  relaxation,  which enabled the Mini Bus Operators to be
\npermitted.  In other words the entire approved scheme stands as it is.    This
\ncourt  holds that the writ petitions have not been rendered infructuous by the
\nmodified scheme.  The  petitioners  are  not  aggrieved  by  the  modification
\nintroduced by  the  modified  scheme.    No such contention has been advanced.
\nTherefore, in the considered view of this court, the writ petitions  have  not
\nbecome infructuous.    The  petitioners need not challenge the modified scheme
\nafresh.  If such a view is taken whenever there is  a  modification  and  even
\nafter  such  modification the modified scheme remains intact, the very contest
\nto the scheme will be defeated and the  contention  advanced  and  the  rights
\nsought to  be  advanced may not be decided at all.  Hence the objection raised
\nby the learned Advocate General is overruled.  Hence  Point  (H)  is  answered
\nagainst the respondents<\/p>\n
POINT -I\n<\/p>\n
        62.   Nextly,  the learned Advocate General raised another preliminary
\nobjection.  It is pointed out by the learned Advocate General that in  respect
\nof  the  following  writ  petitions  no  objections  have  been  filed  by the
\npetitioners and therefore those writ petitions have to be dismissed summarily.
\nThe Writ Petitions  in  which  the  writ  petitioners  have  not  filed  their
\nobjections before the respondent to the proposal are:\n<\/p>\n
        1)      W.P.No:11239\/95\n        2)      W.P.No:11557\/95\n        3)      W.P.No:12152\/95\n        4)      W.P.No:12921\/95\n        5)      W.P.No:13509\/95\n        6)      W.P.No:14139\/95\n        7)      W.P.No:14310\/95\n        8)      W.P.No:15915\/95\n        9)      W.P.No:17371\/95\n        10)     W.P.No:17372\/95\n        11)     W.P.No:17409\/95\n        12)     W.P.No:1234\/98\n        13)     W.P.No:4636\/98\n\n<\/pre>\n
        63.   According  to  the  learned  Advocate  General in the above writ
\npetitions the petitioners have not raised objections and not being  objectors,
\nit is  not  open  to them to challenge the approved scheme.  There is merit in
\nthis contention.  The petitioners in the above 13  writ  petitions  not  being
\nobjectors  cannot  challenge  the  approved  scheme  by filing writ petitions.
\nHence the above thirteen writ petitions are dismissed.  This pint is answererd
\nin favour of the respondents.\n<\/p>\n
POINT – J\n<\/p>\n
        64.  That apart W.P.Nos:1234 of 1998 and 4636 of 1998 are liable to be
\ndismissed as the schemes were approved as early as 23.5.1995 and published  in
\nthe Gazette  on 24.5.1995.  But the above writ petitions have been filed after
\nthree long years and they are belated.  Thus on the ground on latches also The
\nWrit Petitions 1234 and 4636 of 1998 are liable to be dismissed.   This  Point
\nis also  answered  in favour of the respondents.  The above two writ petitions
\nare dismissed accordingly.\n<\/p>\n
        65.  The, common contentions have been raised and the  same  would  be
\ntaken  up  for  consideration for all the 64 writ petitions, though 13 of them
\ndeserve to be dismissed as not being objectors and two of them are deserve  to
\nbe rejected  in  limini  on ground of laches.  Points (I) and (H) are answered
\nagainst the writ petitioners.\n<\/p>\n
        66.  However, the learned  counsels  for  the  petitioners  sought  to
\ncontend  that  they are seeking a remedy of declaration which plea also cannot
\nbe sustained as they have not  challenged  the  approved  scheme  as  notified
\nwithin  a  reasonable  time  and  it  is  not open to them to come forward and
\nchallenge.  Once a Scheme is  approved  and  notified,  no  operation  by  the
\nprivate  operators is permissible in the notified areas except in terms of the
\nScheme and there is no escape.  This legal position is well settled.\n<\/p>\n
        67.  Mr.S.Varadachari, learned counsel while  highlighting  the  first
\npoint,  drew the attention of the court to Section 2(1) of the Act, where area
\nhas been defined as “area”, in relation to any provision of  this  Act,  means
\nsuch  area  as  the State Government may, having regard to the requirements of
\nthat provision, specify by Notification in the Official Gazette.  According to
\nMr.S.Varadachari, learned counsel, if area is not notified by  a  Notification
\nin  the  Official  Gazette,  in  relation to any of the provisions of the Act,
\nthere could be no proposal at all in terms of Chapter VI of the Act.\n<\/p>\n
        68.  As already pointed out Chapter VI overrides Chapter V  and  other
\nlaws including  other  provisions of The Motor Vehicles Act.  A perusal of the
\nproposal and the draft notification would show that the  entire  District  has
\nbeen  notified  as an area and therefore no separate notification is required.
\nThe contention to the contra advanced  by  Mr.S.Varadachari,  learned  counsel
\ncannot be sustained.\n<\/p>\n
        69.  Section 2(1) is a definition clause and nowhere it is provided in
\nSection  2  that  till  an  area is notified there could be no proposal at all
\nunder Chapter VI.  Assuming for purpose of arguments that an area has not been
\nnotified, that does not mean that there can be no initiation  of  proposal  or
\npublication  of draft scheme or approval proceedings in terms of Chapter VI of
\nthe Act.\n<\/p>\n
        70.  What has been notified as proposed is an  area  scheme  and  such
\narea  being  as seen from the Notification is District and therefore it is not
\nnecessary to issue a separate notification notifying the area  as  defined  in
\nSection 2(10  of  the  Act.  This contention cannot be sustained and it has no
\nlegs to stand.  Chapter VI itself, as already pointed out, is a complete  Code
\nwhich  overrides  not  only Chapter V, but also other provisions of the Act or
\nany other Act  or  pronouncement.    The  consideration  of  the  proposal  or
\npublication  of drat notification or final approval of the scheme has to be in
\nconformity with Chapter VI alone.  Therefore, the contention that there is  no
\nnotification defining the area or specifying the area is without merits and it
\nis begging the question itself.\n<\/p>\n
        71.  In C.P.S.R.M.Service Vs.  State of Maharashtra, reported in AIR 1
\n974  SC  1095,  the  Apex  Court  held  that it is not necessary for the State
\nGovernment to have specified an area by a an independent Notification  in  the
\nOfficial Gazette.    The  above  pronouncement  is  a  complete  answer to the
\ncontention and no further discussion is required in this respect.  In the said
\npronouncement, the Apex Court held thus:-\n<\/p>\n
        “15.  We do not think that the word “area” occurring  in  Section  68C
\nhas the  same  meaning  as the word `route’ in the section.  When Section 68-C
\ntalks of area or route or part thereof, it is not  to  be  presumed  that  the
\nlegislature made no distinction between are and route.  No doubt, a route must
\nnecessarily  run  over an area but, for that reason, one cannot equate an area
\nto be route.  An area simpliciter is certainly not a route.  Its  potentiality
\nto become  a  route  would  not  make  it  a  route.   A route is an area plus
\nsomething more.  At  any  rate,  there  is  no  justification  for  making  an
\nassumption  that  the legislature, in the context of Section 68-C did not want
\nto make any distinction between area and route.  In Dosa Satyanarayanamurthy’s
\ncase (AIR 196 1 SC 82) Subba RaoJ., observed:\n<\/p>\n
“Under Section 68-C of the Act the scheme may be framed in respect of any area
\nor a route or a portion of any area of a portion of a  route.    There  is  no
\ninherent inconsistency  between  an  area  and a route.  The proposed route is
\nalso an area limited to the route proposed.  The scheme may as well propose to
\noperate a Transport service in respect of a new route from point A to point  B
\nand that route would certainly be an area within the meaning of Section 68-C”.\n<\/p>\n
xx              xx              xx              xx              xx<\/p>\n
        17.     If,  therefore,  in respect of a scheme in relation to a route
\nor routes, it is not  necessary  that  the  State  Government  should  make  a
\nnotification  specifying  the route or routes we fail to understand the reason
\nwhy the State Government should specify the area  by  a  notification  in  the
\ngazette for  framing  a  scheme in relation to an area.  In other words, ti is
\nimpossible to understand the rationale  behind  the  distinction  why  when  a
\nscheme  is  framed  in  relation  to  an  area  a  notification in the gazette
\nspecifying its extent is necessary and why when it is framed in relation to  a
\nroute or routes a notification specifying the route or routes is not required.
\nWhen  Section  68-C  says  “Where any Sate Transport Undertaking is of opinion
\nthat….it is necessary in the public interest that road transport services in
\ngeneral or any particular class of such service in relation  to  any  area  or
\nroute  corporation  thereof  should be run and operated by the State Transport
\nUndertaking”, it  means,  in  the  context  of  the  present  case,  that  the
\nCorporation  has  to  form  an  opinion  whether it is necessary in the public
\ninterest that road transport services should be nationalised  in  relation  to
\nany area  or  route.   We are aware of a plausible construction of the section
\nwhich would enable the corporation to form an opinion only as to the necessity
\nin the public interest of a scheme in relation to an  area  specified  in  the
\nnotification by the State Government.  But we think, it comports more with the
\nlegislative  purpose  to hold that the State transport undertaking is invested
\nwith the discretion to select the area in relation to which it will frame  the
\nscheme than to hold that discretion has been vested in the State Government.\n<\/p>\n
        18.     If,  in  forming an opinion with respect to the necessity of a
\nscheme in relation  to  a  route  or  routes  the  power  of  State  transport
\nundertaking  and  therefore  of the corporation, is untrammelled by an outside
\nauthority like the State Government, we fail to see  why  it  cannot  form  an
\nopinion as to the necessity of a scheme in relation to any area in the State”.\n<\/p>\n
Hence, the Point (A) is answered against the petitioners.\n<\/p>\n
        72.  The  next  two points could be considered together.  According to
\nthe  petitioners  the  scheme  has  been  proposed  by  the  Home   Secretary(
\nTransport),  Draft Scheme has been notified by the Home Secretary( Transport),
\nObjections were heard by the Home Secretary(Transport) and  he  has  overruled
\nthe objections  and  approved the Scheme besides notified the same.  Therefore
\nit is contended by the counsel for the petitioner that the Home  Secretary  is
\ninterested in  the  Scheme  as the proposer and therefore he is biased.  Hence
\nthe approval is biased and illegal.\n<\/p>\n
        73.  Per contra, in he counter it has  been  stated  that  it  is  the
\nconcerned  Transport  Minister  who  proposed  the scheme and it went upto the
\nlevel of the Chief Minster and therefore it is not  the  Home  Secretary,  who
\nproposed the scheme.  Hence the objection or plea or contention as to bias has
\nno legs to stand.\n<\/p>\n
        74.  In this respect as a challenge has been made on facts, this court
\ncalled upon  the  learned Advocate General to produce the original files.  The
\noriginal file was produced before the court by the learned  Advocate  General.
\nOn  a  perusal of the file relating to G.O.Ms.No.559 and 578, dated 24.5.1994,
\nit is seen that the proposal was initiated at the instance of  the  Government
\nas  seen  from  the approval of the proposal by the then Transport Minister on
\n8.4.1994 and that of  the  Chief  Minister  dated  9.5.1994.    The  proposals
\nemanated  from the Government and thereafter the proposal was published by the
\nHome Secretary on 24.5.1994 in respect of as many as 20  area  draft  schemes.
\nThe file produced by the Learned Advocate General demolishes the very basis of
\nthe contention  advanced  by the counsel for the petitioners.  Therefore it is
\nclear that it is not the Home Secretary who proposed,  but  it  is  the  State
\nGovernment and the concerned Transport Minister and the Chief Minister and the
\nCabinet.  The stand taken in the counter affidavit in this respect deserves to
\nbe  sustained  as the file produced before the court establishes that the Home
\nSecretary has not proposed  but  it  is  the  government  which  proposed  and
\nthereafter draft  notification was published by the Home Secretary.  It is not
\nthe proposal by the Home Secretary and therefore the official bias,  which  is
\nsought to be advanced as one of the contention deserves to be rejected.\n<\/p>\n
        75.   In  the  present  case,  the  Home Secretary published the draft
\nscheme,  invited  the  objections,  heard  the  objections,   considered   the
\nobjections  and  overruled  the  objections,  Thereafter  the  scheme has been
\napproved by him and notified.  Hence the contention that  the  Home  Secretary
\nhas acted as a Judge of his own cause cannot be countenanced.  This contention
\nis basd  on  factual  misconception.    Hence  the  contention is liable to be
\nrejected.\n<\/p>\n
        76.  It is also contended that under  the  Business  Rules,  the  Home
\nSecretary is  not  the competent authority to hold an enquiry.  This point has
\nalready been decided by this court in the earlier Writ  Petitions  decided  by
\nthis Court  in  W.P.Nos:19067  to  19069\/99  etc.,  batch.    The same applies
\nsquarely to the present case.  In the said order, it has been held thus:-\n<\/p>\n
        “127.  In the present case, the allocation of the  Business  Rules  as
\nalready  pointed  out confers the power on the Secretary to Government to Home
\nDepartment to notify a proposal, invite objections,  hear  objections,  decide
\nobjections   quasi-judicially   and  pass  orders  and  thereafter  issue  the
\nnotifications.  On facts it is clear that  the  said  decision  will  have  no
\napplication to  the  facts of the case.  However, it is to be pointed out that
\nthe notifications in the said case also was issued in the name of the Governor
\nas seen from para 15 of the judgement.  While holding that the Motor  Vehicles
\nAct imposes a duty on the State Government to decide the objections judicially
\nin  applying  or modifying a scheme proposed by the Transport Undertakings and
\nin the view that Section 68(c)  and  68(d)  do  require  compliance  with  the
\ncriteria
\nof  a  judicial  act,  it has been held that an order under section 68(d) is a
\njudicial act.\n<\/p>\n
        128.  The issuance of notifications being an executive or  ministerial
\nfunction requires  to  be issued in the name of the Governor.  At any rate the
\nhearing of objections and taking a  decision  being  quasi  judicial  and  the
\ndecision  making  process were by the Home Secretary which was followed by the
\nsubsequent gazette notifications issued by the Home Secretary in the  name  of
\nthe Governor, this gazette publication in no way vitiates, nor it is liable to
\nbe interfered.\n<\/p>\n
Xx              xx              xx              xx<\/p>\n
116.   Incidentally,  it has to be pointed out that the gazette publication of
\nthe approved scheme as an administrative act.  As already  pointed  out  quasi
\njudicial  function  which  the  first  respondent  is expected to exercise and
\ndischarge has actually been exercised by the first respondent in every respect
\nof the matter.  As seen from the file not only by publishing the draft  scheme
\nbut also inviting objections, hearing objections and overruling the objections
\nand  thereafter  deciding  to approve the proposed scheme and the entire quasi
\njudicial function has been performed and decided by the Home Secretary  as  an
\nindependent authority as provided in the business rule.\n<\/p>\n
        117.  In  A.K.Kraipak  Vs.  Union of India, reported in 1969 ( II) SCC
\n262<\/span>
\n= AIR 1970 SC 150, HEGDE,J., speaking for the Five Judges Bench  of  the  Apex
\nCourt  while  pointing  out  that the dividing line between the administrative
\npower and a quasi-judicial power is quite thin, held thus:-\n<\/p>\n
“For  determining  whether  a  power  is  an   administrative   power   or   a
\nquasi-judicial power one has to look to the nature of the power conferred, the
\nperson or persons on whom it is conferred, the framework of the law conferring
\nthat  power,  the consequences ensuing from the exercise of that power and the
\nmanner in  which  that  power  is  expected  to  be  exercised.    Under   our
\nConstitution the rule of law pervades over the entire field of administration.
\nEvery organ of the State under our Constitution is regulated and controlled by
\nthe rule  of  law.    In  a  welfare State like ours it is inevitable that the
\njurisdiction of the administrative bodies is increasing at a rapid rate.   The
\nconcept of rule of law would lose its vitality if the instrumentalities of the
\nState  are  not charged with the duty of discharging their functions in a fair
\nand just manner.  The requirement of acting judicially in essence  is  nothing
\nbut   a   requirement  to  act  justly  and  fairly  and  not  arbitrarily  or
\ncapriciously.  The procedures which are considered inherent in the exercise of
\na judicial power are merely those which facilitate if not ensure  a  just  and
\nfair decision.”\n<\/p>\n
        118.   The  provisions  of  the  Motor Vehicles Act enjoined the first
\nrespondent to act quasi-judicially or to act in part  administratively.    The
\npolicy  and  expediency as seen from the provisions of the Act are the guiding
\nfactors.  As the statutory provision has expressly imposed a duty on the first
\nrespondent to act judicially, that part of  the  first  respondent  commencing
\nfrom  publication  of  draft  proposal  to  the making of decision or decision
\nmaking process is a
\nquasi-judicial function.\n<\/p>\n
        119.  In other words, commencing from notifying the proposal, inviting
\nobjections, consideration of objections,  taking  a  decision  or  the  entire
\ndecision  making  process  is  quasi-judicial and the later portion of gazette
\npublication issued is either ministerial or  administrative.    Hence,  it  is
\nclear that the publication in the gazette being a consequential ministerial or
\nadministrative  action  on the part of the first respondent, and merely on the
\nbasis of the text of the gazette publication, viz., “Governor  of  Tamil  Nadu
\nmodifies the Modified Scheme,” it cannot be concluded that it is not the first
\nrespondent, Home Secretary, who had discharged the quasi-judicial function.\n<\/p>\n
        120.   As  has  already  been pointed out, the files placed before the
\ncourt would show that every quasi-judicial function had been discharged by the
\nSecretary to the Government (Home) Department.  The  ministerial  act  namely,
\nthe  publication  of the approved scheme, just because the gazette publication
\nreads that the Governor had approved the scheme, in my considered view  cannot
\nbe  a  ground to quash the impugned notifications, nor it is a valid ground to
\nimpugn the proceedings.\n<\/p>\n
        121.  As has already been pointed out, the publication of the approved
\nscheme in the gazette is either a ministerial or administrative function.   As
\nseen from the files, it is the Home Secretary who has exercised quasi judicial
\nfunction  and  the  ministerial  function,  namely publication of the approved
\nscheme in the Gazette in the name of the Governor, in my considered view, will
\nnot vitiate the impugned proceedings.\n<\/p>\n
        122.  Functions have to be indicated as exercised either in  terms  of
\nstatutory provisions  or  as  per  constitutional  provisions.  After the Home
\nSecretary has exercised the quasi judicial function as per the allocation,  it
\nis the statutory Gazette publication or notification which has
\nbeen  issued in the usual format or expression by the Secretary to Government.
\nHence this contention cannot be sustained.”\n<\/p>\n
        77.   Hence  Points  (B)  and  (C)  are  also  answered  against   the
\npetitioners and in favour of the respondents.\n<\/p>\n
        78.  Taking up the next contention, namely, failure to communicate the
\nfull   text   of  the  decision  taken  by  the  Home  Secretary  and  without
\ncommunicating the decision  the  approved  scheme  being  notified,  which  is
\ncontended  as  illegal,  violative  of  principles  of  natural justice, while
\naccording to the respondents it is not necessary to communicate the full  text
\nof  the  proceedings  and  what  is  required  under the Act is to publish the
\napproved scheme.  The learned Advocate General produced the file of  the  Home
\nSecretary,  where  there  is  a  discussion  of all the objections advanced by
\nvarious objectors and for reasons recorded the objections have been overruled.
\nThe order of the Home Secretary, as seen from  the  discussions,  is  a  valid
\norder  and  it  in  no  way  suffers with illegality or arbitrariness or other
\nerror.\n<\/p>\n
        79.  It is contended by the learned Advocate General that  Section  99
\nof  the  Motor  Vehicles Act does not oblige the Government to communicate the
\ndecision.  Fairly the Home Secretary considered the  objections  and  rejected
\nthe same.    The  statutory provision also do not contemplate communication of
\nthe full  text.    The  approved  scheme,  as  already  pointed  out   is   an
\nadministrative action.  On a perusal of the file, this court is satisfied that
\nthe  Home Secretary had considered all the objections taken into consideration
\nof the material objections, and rightly overruled the objections.I do not find
\nany illegality or perversity or any vitiating circumstances to hold  that  the
\ndecision taken  by the Home Secretary warrants interference.  In this respect,
\nthe learned Advocate General rightly referred to the earlier order  passed  by
\nthis  court in W.P.No:19067\/99 etc., Batch (Senthil Vs The State of Tamil Nadu
\nand others) where this Court held thus:-\n<\/p>\n
“111.  Factually, it is clear from the files that it is the Home Secretary who
\nhad heard the objectors, who had considered the objections, who had  overruled
\nthe objections  and  issued  the proceedings approving the proposal.  There is
\nnothing in the file to say that the Home Secretary had submitted the files  to
\nany  other  authority,  much  less,  to  the Council of Ministers or any other
\nauthority as sought to be contended by Mr.M.Palani, learned counsel  appearing
\nfor some  of  the petitioners.  It is clear from the files as well as from the
\naffidavit filed by the Home Secretary, it is the Home Secretary who had  heard
\nthe  objections,  considered the objections and overruled the objections after
\napplication of mind and by her proceedings approved the proposal  as  notified
\nearlier and  issued  the  proceedings.   Nobody else had a role to play in the
\ndecision making process or the ultimate decision in
\napproving the modified approved scheme.\n<\/p>\n
        112.  It is clear from the files and this court is satisfied that  the
\ncontentions  to  the contra cannot be sustained and such contentions are based
\non factual misconceptions.\n<\/p>\n
Xx              xx              xx              xx              xx<\/p>\n
        114.  Thus gleaned from the settled legal position, it has to be  held
\nthat  the  decision taken by the Home Secretary and the approval of the Scheme
\nas notified is valid.  There is no doubt in the mind of this Court that it  is
\nthe  Home Secretary who had considered the objections and none else had a role
\nto play in the hearing of objections as well as considering and overruling the
\nobjections and taking a decision to issue the impugned notifications.”\n<\/p>\n
        80.  Taking up the remaining contentions, it is  rightly  pointed  out
\nthat  specifying  both  minimum and maximum number of service and trips in the
\nScheme was in accordance with the provisions of Chapter VI.  In  this  respect
\nMr.S.Varadhachari,  learned  counsel,  relied  upon  the judgement of the Apex
\nCourt in Asath Narayan Singh Vs.  State of Mysore, reported  in  AIR  1965  SC
\n1843.   However,  the  very same judgement is being rightly relied upon by the
\nlearned Advocate General and being an area scheme it is contended that  it  is
\nvery difficult to precisely indicate the minimum or maximum number of vehicles
\nand trips  in  each  route in the area.  While considering the said objections
\nthe Apex Court held thus:-\n<\/p>\n
        “9.     Our attention is also drawn to C.P.C.  Motor Service V.  State
\nof Mysore,<\/a> (1962), Supp.  (1) SCR 717.   In  that  case  at  p.727,  following
\nobservations occur:-\n<\/p>\n
        “The  earlier Rules required a statement as to the minimum and maximum
\nnumber of vehicles to be put on a route,  as  also  the  minimum  and  maximum
\ntrips.   It  was  however held by this court that a departure from the minimum
\nnumber would mean the alteration of the scheme, necessitating  the  observance
\nof al the formalities for framing a scheme.”\n<\/p>\n
These observations are pressed into service to show that a minimum and maximum
\nnumber cannot  be  prescribed  in  a scheme prepared under S.68-E.  It is true
\nthat there is an observation in that case that it had been held by this  court
\nthat  a  departure  from  the  minimum  number  would man an alteration of the
\nscheme, necessitating the observance of all  the  formalities  for  framing  a
\nscheme.   But  learned  counsel was unable to point out any case of this court
\nwhere it was held that departure from the minimum in  the  case  of  a  scheme
\nwhich mentions both the minimum and maximum would require action under S.68-E.
\nThe only case to which our attention was invited in this connection is that of
\nDosa Satyanarayanamurthy (1961) 1 SCR 642 (AIR 1961 SC 82) but in that case it
\nwas  held  that  a  departure  from an exact number would require action under
\nS.68-E.  However, that was not a case where the scheme  itself  fixed  minimum
\nand maximum.    The  scheme in that case fixed an exact number and it was held
\nthat departure from such a number would man modification of the scheme  within
\nthe meaning  of  S.68-E.  The observation in C.P.C.Motor Service’s case (1962)
\nSupp (1) SCR 717 that this court had held that a departure  from  the  minimum
\nwould  mean  alteration  of  the scheme therefore appears to have crept in per
\nincuriam.\n<\/p>\n
10.     Lastly our  attention  is  drawn  to  a  judgment  to  this  Court  in
\nC.S.Rowjee V.   State  of  Andhra  Pradesh, AIR<\/a> 1964 SC 962.  In that case the
\nquestion of indicating minimum and maximum in  the  scheme  had  come  up  for
\nconsideration.   But the scheme in that case was quashed on the ground of bias
\nand this court had therefore no occasion to consider the question whether  the
\nindication  of  minimum  and  maximum  in the scheme would make it ultra vires
\nS.68-C.  Even so some observations were made in that connection at the end  of
\nthe judgment.   But the learned Judges made it clear that they had not thought
\nit necessary to decide the larger question viz., whether the mere prescription
\nof the maxima and minima constituted a violation of S.68-E, as to require  the
\nscheme to be struck down.  Therefore the observation in that case with respect
\nto the fixing of minima and maxima must be treated as obiter.  Further in that
\ncase  it  was  argued on behalf of the State that the indication of minima and
\nmaxima by itself would not be bad; but it was conceded that  the  gap  between
\nthe minima  and  maxima  should  not  be  very  wide.   The Court assumed this
\nposition and then observed that in some of the case gap  between  the  minimum
\nwas very wide and if the scheme had not already been vitiated on the ground of
\nbias, this court might have struck it down on the ground that there was a wide
\ngap between  the minimum and maximum.  There is no doubt that though fixing of
\nminimum and maximum number of vehicles and trips with respect to each route is
\npermissible under S.68-C and would  not  be  hit  by  S.68-E,  the  proportion
\nbetween  the  minimum and maximum should not be so great as to make the fixing
\nof minimum and maximum a fraud on Ss.68-C and 6 8-E of the Act.    It  is  not
\npossible  to  lay  down  specifically  at what stage the fixing of minimum and
\nmaximum would turn into fraud; but it is only when the gap between the minimum
\nand maximum is so great that it amounts to fraud on the Act that  it  will  be
\nopen  to  a court to hold that the scheme is not in compliance with S.68-C and
\nis hit by S.68-E.  The gap between the minimum and maximum would depend upon a
\nnumber of factors, particularly on the variation in the demand  for  transport
\nat different  seasons of the year.  Even so if the approved scheme were to fix
\nminimum and maximum with very wide  disparity  between  the  two,  it  may  be
\npossible for the Court to hold after examining the facts of the case that such
\nfixation is not in accordance with S.68-C and is a fraud on S.68-E.  But, with
\nrespect,  it  seems to us that a variation in minimum and maximum from 6 to 12
\nor 5 to 9 can hardly be of such an order as to amount to  fraud  on  the  Act.
\nThe  observation  s  with  respect  of fixing of minimum and maximum number of
\nvehicles and trips in the scheme made in Rowjee’s case, AIR 1964 SC  962  must
\ntherefore  be  treated  as  obiter  as  in  that  case  they  did  not require
\ndetermination.  In the present case the gap is not of such a wide nature.\n<\/p>\n
        Xx              xx              xx              xx<\/p>\n
12.  WE are therefore of opinion that specifying of both minimum  and  maximum
\nnumber  of  vehicles  and  trips  in  the  scheme  under  challenge is also in
\naccordance with the provisions of S.68-C and  is  not  hit  by  S.68-E.    The
\ncontention of the appellants under this head is therefore rejected.”.\n<\/p>\n
In  the  light  of  the above pronouncement of the Apex Court, this contention
\nalso fails.\n<\/p>\n
        81.  The last contention advanced by Mr.M.Krishnappan and  others  is,
\nnamely,  by  virtue  of  the subsequent modification of the approved scheme in
\nrespect of some of the writ petitions who have been  granted  permit  and  who
\nhave been operating, they should be deemed to have secured the permits validly
\nand  such  permits  are validated under the Tamil Nadu Motor Vehicles (Special
\nProvisions) Act, 1988.  This contention is born out of frustration and it is a
\nclear misreading of the standing provisions of the said enactment.\n<\/p>\n
        82.  It is settled law that after the approval of the  Scheme  private
\noperators  have  no  right  to  claim  permit to operate their vehicles on the
\nnotified area, route or portion thereof except to the extent permitted by  the
\nsame.  In  U.P.SRTC Vs.  Anwar Ahmed, reported in 3 SCC 19 1, it has been held
\nthus:-\n<\/p>\n
        “Once the scheme has been approved and notified, right  to  ply  stage
\ncarriages  by  private  operators  on  the  notified  area, routes or portions
\nthereof is totally forzen.  Therefore, they have no right to claim  any  grant
\nof  stage  carriage,  temporary or contract carriage permits thereunder on the
\nsaid notified area, routes or portions thereof except to the extent  saved  by
\nthe scheme with restrictions imposed thereunder.  By virtue of Section 104 the
\nappellant  corporation  has the exclusive right or monopoly to ply their stage
\ncarriages and obtain the required permit as per the scheme.\n<\/p>\n
        The proviso to Section 104 gives only a limited breath of life, namely
\nuntil the Corporation puts the vehicles on the  notified  routes  as  per  the
\nscheme, temporary  permits  may  be  granted  to  private operators.  Thereby,
\ntemporary inconvenience to traveling public is sought to be averted  till  the
\npermits are  taken  and vehicles are put on to the route by the appellant.  In
\nthis case permits were taken by the appellant and the vehicles were put on the
\nroute in terms of  the  scheme.    But  the  private  operators  were  seeking
\ntemporary  permits  by  carving out a new route by fusing two notified routes.
\nThis device is obviously impermissible to enter into frozen area or  route  or
\nportion thereof through backdoor.  The scheme is law by itself and until it is
\nvaried  according  to law, no private operator has nay right to camouflage any
\ndevice to obtain temporary permits.  Under these circumstance, action taken by
\nthe respondents to obtain temporary  permits  is  obviously  ultra  vires  and
\nauthorities have  no  jurisdiction  to  grant  such  permits.   The altered or
\nmodified routes are contrary to the approved scheme.   Since  they  have  been
\noccupied by two notified routes and to be operated as per the scheme.”\n<\/p>\n
The above pronouncement is rightly relied upon by the learned Advocate General
\nand this court holds that the contention is a misconception.\n<\/p>\n
        83.  In  Thilagavathy  Vs.    Regional  Transport  Authority,  Periyar
\nDistrict, reported in 1995 (1) SCC 456 while upholding the validity  of  Tamil
\nNadu  Motor  Vehicles  (Special  Provisions) Act, 1992 and legality of permits
\nalready granted between 1976 and 30.6.1990, the Supreme Court held thus:-\n<\/p>\n
“7.  Reverting to the provision of the Act, it is slightly unusual legislation
\nas it came into force in July 1992 yet, except Sections 6 and 7, the remaining
\nprovisions of the Act are deemed to have come into force in 1976 and ceased to
\noperate after 30-6-1990.  The Act thus seeks to achieve  dual  objective  one,
\nlegislatively  protecting  those operators who were granted permits after 1976
\nunder misconception by the transport  authorities  that  the  Scheme  excluded
\nother  operators  from  “end-to-end”  route  only  by fictionally enabling the
\ntransport authority to have issued permits notwithstanding  any  provision  in
\nthe Scheme  framed  by  the  Undertaking.  Two, it prohibited grant of any new
\npermit after 30-6-1990 which overlapped whole or part of notified route,  that
\nis, the Legislature while accepting the interpretation placed by this Court on
\nconstruction  of  Scheme prepared under Section 68-C legislatively removed the
\nhurdle in grant of permits on notified route in past, validated the  grant  so
\nmade but prohibited any grant in future.  Sections 3, 4, 5 and 10 are directed
\ntowards  regularising  and  validating  the  permits  granted between 1976 and
\n30-6-1990, whereas Sections 6 and 7 achieve the latter objective.   Section  3
\nis the  main  section.    Its  sub-sections  (1)  and  (2)  empower a Regional
\nTransport Authority to grant, renew or vary conditions of permit  of  a  small
\noperator,  which, according to the explanation to the section, means any stage
\ncarriage operator holding not more than five stage carriage permits, to ply on
\na notified route or part of it notwithstanding anything contained in any draft
\nscheme.  Sub-section (3) of Section 3 provides  that  during  the  period  the
\npermit  referred to under sub-section (1) or (2) was in force the draft scheme
\nshall stand modified to that extent.  Sub-section (4) makes the provisions  of
\nChapter  V  of  the  Act  applicable to grant, renewal or variation of permit.
\nSection 5 provides that Sections 3, 4 and 6 shall have effect  notwithstanding
\nanything  inconsistent  therewith  contained  in  Chapters  V and VI including
\nSection 98 of the Motor Vehicles Act.   Section  10  validates  the  grant  of
\npermit retrospectively.    Section  3  thus  created  power  in  the transport
\nauthority to grant, renew, vary or alter  permit  from  1976  and  Section  10
\nvalidated  such grant notwithstanding anything to the contrary in the new Act.
\nThere was no challenge by the State Transport Undertaking to these  provisions
\nby which the grant of permits in favour of the operators between 1976 and 1990
\nhas been permitted and validated.\n<\/p>\n
Xx              xx              xx              xx              xx<\/p>\n
9.  But what has created confusion is Section 10 which reads as under:
\n“10.  Notwithstanding anything contained in Chapters V or VI including Section
\n98  of  the  Motor  Vehicles  Act,  1988 all orders passed granting permits or
\nrenewal or transfer of such permits or any variation, modification,  extension
\nor  curtailment  of  the  route or routes specified in a stage carriage permit
\nduring the period commencing on the 4th day of June, 1976 and ending with  the
\ndate  of  the  publication  of  this Act in the Tamil Nadu Government Gazette,
\nshall for all purposes be deemed to be and to have always been taken or passed
\nin accordance with the provisions of this Act as if this Act had been in force
\nat all material times.”\n<\/p>\n
The section is  not  happily  worded.    Literally  read  it  may  clash  with
\nsub-section (4)  of  Section  6  of  the  Act.    Reliance  was  placed on the
\nexpression “and ending with the date of the publication of  this  Act  in  the
\nTamil Nadu Government Gazette”.  It was urged that this clearly indicated that
\nany  permit  granted  between 4-6-1976 and the date of publication of the Act,
\nnamely, 31-7-1992, would be valid.  According to the learned counsel the  High
\nCourt  committed an error of law in dismissing the writ petitions filed by the
\nappellants on basis that their permits having been  granted  or  countersigned
\nafter 30-6-1990  were  invalid  and  contrary  to  the  Scheme  of the Act.  A
\nsuperficial reading of Section 10 does give an impression that  the  operation
\nof  the  Act  for  purposes  of  grant of permit stood extended not only up to
\n30-6-1990 but up to 31-7-1992.  But that would be in the teeth of  sub-section
\n(4) of  Section 6 and Section 3 itself.  The purport of the Act was to protect
\nthose operators who had been issued permits between 1976 and  30-6  -1990  and
\nnot to  depart  from the interpretation placed by this Court.  The Legislature
\nwhile protecting the past mistakes of the Government has  taken  care  not  to
\nrepeat it  in  future.   This is not discrimination but accepting the decision
\ngiven by this Court.  Further it is a validating provision.  In absence of  it
\nthe  action  of  the authorities granting permits which was legislatively made
\npermissible by Sections 3 and 4 would not have been saved.  It too  ceased  to
\noperate from 30-6-1 990 in view of sub-section (3) of Section 1 which reads as
\nunder:\n<\/p>\n
“The  provisions  of  the Act (except Sections 6 and 7) be deemed to have come
\ninto force on the 4th June, 1976 and remain in force up to  and  inclusive  of
\nthe  30th  June, 1990 and Section 6 shall be deemed to have come into force on
\nthe 1st July, 1990.”\n<\/p>\n
A provision which was legislatively dead on 30-6-1990 could not be  deemed  to
\nbe alive for purpose of grant of permit because of the expression “the date of
\npublication of this Act in the Tamil Nadu Government Gazette” appearing in the
\nprovision.   The  High  Court  thus did not commit any error in dismissing the
\nwrit petition of those operators whose claim for new  permit  after  30-6-1990
\nwas rejected by the authorities.”\n<\/p>\n
        84.   In  the  light of the said pronouncement the petitioners who are
\nrunning either on a temporary permit or under interim orders of Stay  and  who
\nhave  not  been  granted permit during the material period as was sought to be
\nprotected by the Special Provisions Act  cannot  claim  that  they  should  be
\nconsidered  as  grantees  under  the  said  Special  Provisions  Act and claim
\nprotection.  Such a contention is far fetched and such claims  will  not  fall
\nnor it  is  saved  nor  there  could be a grant.  It is also contended that by
\nvirtue of the modification of the scheme, the scheme has  become  inoperative.
\nIn this respect this court has already held while dealing with the preliminary
\nobjection  that  the  modification  of the Scheme in no manner change the area
\nscheme at all and only a relaxation has been  made  in  respect  of  Mini  Bus
\noperators  to  be  operated for a limited distance in the approved area scheme
\nroutes.\n<\/p>\n
        85.  It is sought to  be  contended  that  the  State  Government  has
\nalready  proposed  to  change  its  policy  of  nationalisation  and  has also
\npublished draft schemes in this respect.  But on that score, this  court  will
\nnot  be justified in holding or assuming that the entire area scheme ceased to
\nexist or rendered unworkable  and  that  the  petitioners  should  be  granted
\npermits under  Chapter  V.   Such a contention is an attempt to side track the
\nentire case.  There are no merits in such a contention.\n<\/p>\n
        86.  All these contentions advanced by the  learned  counsel  for  the
\npetitioners  fail  and this batch of writ petitions are dismissed, but without
\ncosts.  Consequently, connected WMPs are closed.\n<\/p>\n
Internet:Yes
\nIndex:Yes
\ngkv<\/p>\n
Copy to:-\n<\/p>\n
1.  The Government of Tamil Nadu
\nrep.  by the Secretary Home
\n(Tansport Dept.,) Secretariat,
\nChennai-9<\/p>\n
2.  The Regional Transport Authority,
\nPeriyar District., Erode.\n<\/p>\n
((SCO LYRIX 6.1
\n))<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sri Lakshmi Saraswathi Bus … vs The Government Of Tamil Nadu on 21 March, 2003 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-217683","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSri Lakshmi Saraswathi Bus ... vs The Government Of Tamil Nadu on 21 March, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sri-lakshmi-saraswathi-bus-vs-the-government-of-tamil-nadu-on-21-march-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sri Lakshmi Saraswathi Bus ... vs The Government Of Tamil Nadu on 21 March, 2003 - 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