{"id":52903,"date":"1991-08-09T00:00:00","date_gmt":"1991-08-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishan-kumar-vs-state-of-rajasthan-and-ors-on-9-august-1991"},"modified":"2019-04-01T12:37:37","modified_gmt":"2019-04-01T07:07:37","slug":"krishan-kumar-vs-state-of-rajasthan-and-ors-on-9-august-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishan-kumar-vs-state-of-rajasthan-and-ors-on-9-august-1991","title":{"rendered":"Krishan Kumar vs State Of Rajasthan And Ors on 9 August, 1991"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Krishan Kumar vs State Of Rajasthan And Ors on 9 August, 1991<\/div>\n
Equivalent citations: 1992 AIR 1789, \t\t 1991 SCR (3) 500<\/div>\n
Author: K Singh<\/div>\n
Bench: Singh, K.N. (J)<\/div>\n
           PETITIONER:\nKRISHAN KUMAR\n\n\tVs.\n\nRESPONDENT:\nSTATE OF RAJASTHAN AND ORS.\n\nDATE OF JUDGMENT09\/08\/1991\n\nBENCH:\nSINGH, K.N. (J)\nBENCH:\nSINGH, K.N. (J)\nSAWANT, P.B.\n\nCITATION:\n 1992 AIR 1789\t\t  1991 SCR  (3) 500\n 1991 SCC  (4) 258\t  JT 1991 (3)\t470\n 1991 SCALE  (2)352\n\n\nACT:\nMotor  Vehicles Act,  1939--Section 68C--Notification  dated\n11. 10. 1979 to make a notified route--Delay due to  conduct\nof  affected parties by approaching the Government  and\t the\nHigh  Court--Coming  into force of the new  Act\t (The  Motor\nVehicles  Act,\t1988)  w.e.f.  1.7.1989--Final\tnotification\ndated 29.8. 1990 u\/s. 100(3) of the new Act--Whether notifi-\ncation\tdated 11. 10. 1979 lapsed or whether within  limita-\ntion.\n    Motor  Vehicles Act. 1988--Sections 100,  217(2)--Object\nof--Pending  scheme  under Section 68C of the old  Act\t(The\nMotor  Vehicles Act, 1939)--Final notification issued  under\nSection 100(3) of the new Act--Limitation--Computation.\n    Motor Vehicles Act, 1988--Sections 100, 217(2)--Harmoni-\nous  construction--Reasons indicated.\n     Interpretation\t     of\t\t Statutes--Harmonious\nConstruction--Motor  Vehicles  Act, 1988--Sections  100\t and\n217(2).\n\n\n\nHEADNOTE:\n    The\t appellant held a Stage Carriage Permit\t for  plying\nhis  vehicle  on the Kota-Khanpur route,  which\t overlaps  a\nportion\t of the KotaSangod route. The State  Road  Transport\nCorporation  vide Notification dated 11.10.1979\t proposed  a\nscheme under Section 68-C of the Motor Vehicles Act 1939 for\nthe  exclusive operation of its vehicles on the\t Kota-Sangod\nroute.\n    The\t affected  operators  of the  route,  including\t the\nappellant, filed their objections against the scheme  before\nthe  authority appointed by the State Government  which\t ap-\nproved the scheme.\n    Before the State Government could issue the final  Noti-\nfication under Section 68-D(3) of the old Act, the appellant\nand  other  affected operators made  representation  to\t the\nMinister for Transport for affording them a fresh opportuni-\nty of hearing.\n501\n    Meanwhile, the Motor Vehicles Act 1988 was enforced with\neffect from 1.7.1989 repealing the old Act.\n    The\t appellant, thereupon, filed a writ petition  before\nthe  High  Court for restraining the State  Government\tfrom\nissuing\t the  final Notification on the ground that  on\t the\nenforcement   of  the  new  Act,  the\tNotification   dated\n11.10.1979  issued  under Section 68-C of the  old  Act\t had\nlapsed on account of delay in finalisation of the same.\n    A  similar writ petition had been filed earlier  in\t re-\nspect  of Kishangarh-Sarwad route by one affected party,  on\nsimilar\t grounds. A learned Single Judge of the\t High  Court\ndismissed  that writ petition holding that the draft  scheme\nunder  the  old Act was saved by the new Act  and  the\tsame\ncould  legally be finalised under the provisions of the\t new\nAct.  When  he filed a Letters Patent Appeal,  the  Division\nBench  dismissed  the  Appeal as well as  the  various\twrit\npetitions including that of the appellant by a common order,\nagainst which the present appeal was made.\n    After the judgment of the High Court, the final  notifi-\ncation\twas published in the Official Gazette  on  29.8.1990\nu\/s. 100(3) of the new Act.\n    The\t appellant,  contended before the Court\t that  since\nthere  was  undue  delay of 11 years in\t issuing  the  final\nNotification,  the scheme as proposed under Section 68-C  of\nthe  old Act should be deemed to have lapsed and  the  State\nGovernment had no authority or jurisdiction to finalise\t the\nsame  or to issue Notification under Section 100(3)  of\t the\nnew  Act; that since the draft scheme dated  11.10.1979\t was\nnot finalised under Section 100(3) of the new Act, the\tsame\nhad lapsed after one year from the date of the\tnotification\nissued\tu\/s. 68-C of the old Act; and that since  period  of\none  year had already expired from the date of the  publica-\ntion of the scheme under Section 68-C of old Act, the scheme\nautomatically  lapsed  and  the same could  not\t be  finally\npublished under Section 100 of the new Act.\nDismissing the appeal this Court,\n    HELD:  1.1. The object and purpose of Section 100(4)  is\nto  avoid delay in finalising a scheme. The  Parliament\t was\naware that under the old Act schemes were not finalised\t for\nlong  years as a result of which public\t interest  suffered,\ntherefore,  it prescribed a time frame for the approval\t and\npublication of schemes. Sub-section (4) prescribes a  period\nof limitation during which the State Government should hear\n502\nand  consider the objections of the objectors  and  finalise\nthe scheme and publish the same in the Official Gazette\t and\non  its\t failure to do so within that period,  penal  conse-\nquences\t would ensue as a result of which the scheme  itself\nshall stand lapsed. [507H-508A, 507F-G]\n    1.2.  The Legislative intent is clear that\tthe  schemes\nproposed  under Section 68-C of the old Act pending  on\t the\ndate  of  the commencement of the new Act should  not  lapse\ninstead those schemes should be finalised in accordance with\nthe  provisions of Section 100 of the new Act.\tThe  pending\nschemes\t were therefore saved and the same were to be  fina-\nlised  within one year as contemplated by Section 100(4)  of\nthe new Act. [509C-D]\n    1.3.  Section  217(2)(e) has been enacted  to  save\t the\nschemes\t published under Section 68-C of the old  Act  which\nwere pending on the date of the commencement of the Act with\na  further  direction that the same shall  be  finalised  in\naccordance with Section 100 of the Act. [510C ]\n    1.4.  If  the period of one year from the  date  of\t the\npublication  of\t proposed scheme is applied to\tthe  pending\nschemes\t under Section 68-C of the old Act, the purpose\t and\nobject of saving the old schemes under Clause (e) of Section\n217(2) of the new Act would be frustrated. [509E-F]\n    2.1.  While Section 217(2)(e) permits finalisation of  a\nscheme\tin accordance with Section 100 of the new Act,\tsub-\nsection\t (4) of Section 100 lays down that a scheme  if\t not\nfinalised  within  a period of one year shall be  deemed  to\nhave  lapsed. If the period of one year as prescribed  under\nSection 100(4) is not computed from the date of\t publication\nof the scheme under Section 68-C of the old Act and  instead\nthe  period  of one year is computed from the date  of\tcom-\nmencement  of  the Act, both the provisions could  be  given\nfull effect. [510F-H]\n    2.2. While in the case of a scheme under Section 68-C of\nthe  old Act, pending on the date of enforcement of the\t new\nAct, namely, 1.7.1989, the period of one year as  prescribed\nunder  Section\t100(4) should be computed from the  date  of\ncommencement of the new Act. [511D-E]\n    2.3. The appellant was himself responsible for the delay\ntherefore  he  is not entitled to complain  for\t the  delay.\nDelay  would  not automatically render the  scheme  illegal.\n[500G]\n    2.4.  Since\t under the old Act no time  frame  was\tpre-\nscribed for finalising a scheme penal consequences could not\nensue. Under the old\n503\nAct  a scheme proposed u\/s. 68 could continue to  remain  in\nforce till it was quashed. [505G-H]\n    2.5.  Since\t the scheme proposed on 11.10.1979  had\t not\nbeen quashed by any Court, the same continued to be in force\non  the date of commencement of the new Act. In the  absence\nof  any provision in the old Act rendering the scheme  inef-\nfective\t on  the ground of delay, the scheme  proposed\tu\/s.\n68-C of the old Act could not lapse ipso facto. [505H-506A]\n    2.6.  In the instant case stay order passed by the\tHigh\nCourt remained in force from May to 9th August, 1990. On the\nexclusion  of that period the final Notification  issued  by\nthe State Government under Section 100(3) of the new Act  on\n29.8.1990 was well within the prescribed period. [512C-D]\n    Yogeshwar  Jaiswal\tetc. v.\t State\tTransport  Appellate\nTribunal  &  Ors., AIR 1985 SC 516; Onkar Singh\t &  Ors.  v.\nRegional Transport Authority, Agra & Ors.,<\/a> [1986] 3 SCC 259;\nDevki Nandan v. State of Rajasthan & Ors., [1987] SUPPL. SCC\n438  and Srichand v. Government of U.P., [1985] 4  SCC\t169,\ndistinguished.\n    Santosh  Kumar & Ors. v. Regional  Transport  Authority,\nCMWP No. 21773\/89, decided on 16th March, 1990, over-ruled.\n    3.\tWhere there appears to be inconsistency in two\tsec-\ntions of the same Act, the principle of harmonious construc-\ntion  should  be followed in avoiding a head  on  clash.  It\nshould\tnot be lightly assumed that what the Parliament\t has\ngiven with one hand, it took away with the other. The provi-\nsions  of  one section of statute cannot be used  to  defeat\nthose  of another unless it is impossible to  reconcile\t the\nsame.  The  essence of harmonious construction\tis  to\tgive\neffect to both the provisions.\n    Venkataramana Devaru v. State of Mysore, AIR 1958'SC 225\nat p. 268.-Followed.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3 165  of
\n1991.\n<\/p>\n
    From  the Judgment and Order dated 9.8.90 of the  Rajas-
\nthan High Court in W.P. No. 2009\/90.\n<\/p>\n
V.A. Bobde, and Mrs. Rani Chhabra for the Appellant.\n<\/p>\n
504<\/span><\/p>\n
Satish Kr. Jain and Mrs. Pratibha Jain for the Respondents.
\nThe Judgment of the Court was delivered by
\nSINGH, J. Special leave granted.\n<\/p>\n
    This  appeal is directed against the judgment and  order
\nof  the High Court of Rajasthan dated 9.8.  1990  dismissing
\nthe appellant’s writ petition made under Article 226 of\t the
\nConstitution  challenging the scheme for nationalisation  of
\nthe route in dispute.\n<\/p>\n
    The\t appellant holds a Stage Carriage Permit for  plying
\nhis  vehicle  on the Kota-Khanpur route,  which\t overlaps  a
\nportion\t of the KotaSangod route. The Rajasthan\t State\tRoad
\nTransport  Corporation,\t Jaipur\t issued\t a  Notification  on
\n11.10.\t1979  proposing a scheme under Section 68-C  of\t the
\nMotor  Vehicles\t Act, 1939 (hereinafter referred to  as\t the
\n‘old  Act’) for the exclusive operation of the\tvehicles  of
\nthe  State  Road Transport Corporation\ton  the\t Kota-Sangod
\nroute. The existing operators as well as the affected opera-
\ntors of the route filed their objections before the  hearing
\nauthority  appointed by the State Government  of  Rajasthan.
\nThe  hearing  authority after considering  those  objections
\napproved the scheme under Section 68-D (2) of the old Act by
\nits order dated 30.11. 1984 and submitted the papers to\t the
\nState Government for the issue of Notification under Section
\n68–D (3). Before the State Government could issue Notifica-
\ntion  under Section 68-1) (3) of the old Act, the  appellant
\nand  other  affected operators made  representation  to\t the
\nMinister for Transport for affording them a fresh opportuni-
\nty  of hearing. As a result of which no\t final\tNotification
\nunder Section 68-D (3) could be issued. Meanwhile, the Motor
\nVehicles Act. 1988 (hereinafter referred to as the new\tAct)
\nwas enforced with effect from 1.7. 1989 and the old Act\t was
\nrepealed.  The\tappellant thereupon filed  a  writ  petition
\nbefore the High Court under Article 226 of the\tConstitution
\nfor  the issue of Mandamus restraining the State  Government
\nfrom  issuing the final Notification, mainly on\t the  ground
\nthat  on  the enforcement of the new Act,  the\tNotification
\ndated 11. II). 1979 issued under Section 68-C of the old Act
\nhad lapsed on account of delay in finalisation of the  same.
\nA similar writ petition had been filed earlier in respect of
\nKishangarh-Sarwad  route  by  one Sardar  Mohd.\t on  similar
\ngrounds. A learned single Judge of the High Court  dismissed
\nthat  writ petition holding that the draft scheme under\t the
\nold Act was saved by the new Act and the same could  legally
\nbe  finalised  under the provisions of the new\tAct.  Sardar
\nMohd. filed a Letters Patent Appeal against the judgment  of
\nthe learned single Judge. A
\n505<\/span>
\nDivision  Bench\t of the High Court disposed of\tthe  Letters
\nPatent\tAppeal of Sardar Mohd. as well as the  various\twrit
\npetitions including that of the appellant by a common  order
\ndated 9.8. 1990 impugned in the present appeal.
\n    After the impugned judgment of the High Court, the State
\nGovernment approved the Scheme as proposed under 68-C of the
\nold  Act. Final notification approving this Scheme was\tpub-
\nlished\tin the Official Gazette on 29.8.1990 u\/s  100(3)  of
\nthe new Act, as a result of which the Kota-Sangod route\t has
\nbecome\ta notified route, consequently the appellant has  no
\nright to ply his vehicle on the overlapping portion of\tthat
\nroute.\n<\/p>\n
    Learned counsel for the appellant urged that since there
\nwas  undue delay of 11 years in issuing the final  Notifica-
\ntion,  the scheme as proposed under Section 68-C of the\t old
\nAct should be deemed to have lapsed and the State Government
\nhad no authority or jurisdiction to finalise the same or  to
\nissue  Notification under Section 100(3) of the new Act.  He
\nplaced\treliance on a number of decisions of this  Court  in
\nsupport\t of his contention that unreasonable delay in  fina-
\nlising\ta scheme proposed under Section 68-C of the old\t Act
\nrendered  the same illegal. He referred to the decisions  of
\nthis  Court  in Yogeshwar Jaiswal etc.\tv.  State  Transport
\nAppellate  Tribunal & Ors., AIR 1985 SC 5 16; Onkar Singh  &
\nOrs. v. Regional Transport Authority, Agra & Ors.,<\/a> [1986]  3
\nSCC  259; Devki Nandan v. State of Rajasthan & Ors.,  [1987]
\nSuppl. SCC 438 and Srichand v. Government of U.P., [1985]  4
\nSCC  169. No doubt in these decisions the Court quashed\t the
\nschemes\t proposed under Section 68-C of the old Act  on\t the
\nground\tof  inordinate delay for which there  was  no  valid
\nexplanation.  In the instant case, the proposed\t scheme\t had
\nbeen  approved by the hearing authority under  Section\t68-D
\n(2) of the old Act in 1984 within five years of the proposal
\nof  the\t scheme but when the matter was\t placed\t before\t the
\nState  Government  for\tissue of  final\t Notification  Under
\nSection\t 68-D  (3) of the old Act, the appellant  and  other
\naffected operators approached the Minister for Transport and
\nstalled the issue of final Notification as a result of which
\ndelay was caused. The appellant was himself responsible\t for
\nthe  delay therefore he is not entitled to complain  of\t the
\ndelay.\tMoreover this Court has not ruled in  the  aforesaid
\ndecisions,  or in any other decision that delay would  auto-
\nmatically render the scheme illegal. Since under the old Act
\nno  time frame was prescribed for finalising a scheme  penal
\nconsequences  could  not ensue. Under the old Act  a  scheme
\nproposed  u\/s 68 could continue to remain in force  till  it
\nwas quashed. Since the scheme proposed on 11.10.1979 had not
\nbeen
\n506<\/span>
\n quashed by any Court, the same continued to be in force  on
\nthe  date of commencement of the new Act. In the absence  of
\nany  provision in the old Act rendering the scheme  ineffec-
\ntive  on the ground of delay, the  scheme proposed u\/s\t68-C
\nof  the old Act could not lapse ipso facto.   Moreover,\t now
\nthe  State Government has already issued final\tNotification
\nunder  Section\t100(3) of the new Act on 29.8.\t1990,  as  a
\nresult\tof which the route has been notified. In  this\tview
\nratio  of  the\taforesaid  decisions of the  Court  are\t not
\napplicable to the instant case at this stage.
\n    Learned  counsel  for  the appellant  urged\t that  under
\nSection\t 100(4)\t of the new Act, if a draft  scheme  is\t not
\nfinalised  and the final notification is not  issued  within
\none  year from the date of the publication of  the  proposed
\nscheme, the same would lapse. Since in the instant case\t the
\ndraft  scheme dated 11.10.1979 was not finalised under\tSec-
\ntion  100(3)  of the new Act the same had lapsed  after\t one
\nyear  from the date of the notification issued u\/s  68-C  of
\nthe  old Act. In order to appreciate this contention  it  is
\nnecessary  to  consider the relevant provisions of  the\t new
\nAct.  Chapter VI of the new Act contains special  provisions
\nrelating to State Transport Undertakings. Section 99 confers
\npower on the State Government to propose a scheme for  oper-
\nating  the vehicles of the State Transport  Undertakings  to
\nthe  exclusion\tof  other persons. The\tproposed  scheme  is
\npublished  in  the Gazette. Section 100 which  provides\t for
\nfiling of the objections before the State Government and the
\nissue of final notification, is as under:\n<\/p>\n
\t      “100. Objection to the proposal–
\n\t      (1) on the publication of any proposal regard-
\n\t      ing  a scheme in the Official Gazette  and  in
\n\t      not  less than one newspaper in  the  regional
\n\t      language\tcirculating  in the  area  or  route
\n\t      which  is to be covered by such  proposal\t any
\n\t      person  may, within thirty days from the\tdate
\n\t      of  its publication in the  Official  Gazette,
\n\t      file objections to it before the State Govern-
\n\t      ment.\n<\/p><\/blockquote>\n
\t      (2) The State Government may, after  consider-
\n\t      ing the objections and after giving an  oppor-
\n\t      tunity to the objector or his  representatives
\n\t      and the representatives of the State Transport
\n\t      Undertaking to be heard in the matter, if they
\n\t      so desire, approve or modify such proposal.
\n\t      (3)  The\tscheme relating to the\tproposal  as
\n\t      approved or
\n\t      507<\/span>
\n\t      modified\tunder sub-section (2) shall be\tpub-
\n\t      lished  in the Official Gazette by  the  State
\n\t      Government making such scheme and in not\tless
\n\t      than  one newspaper in the  regional  language
\n\t      circulating  in the area or route\t covered  by
\n\t      such  scheme  and\t the  same  shall  thereupon
\n\t      become final on the date of its publication in
\n\t      the  Official Gazette and shall be called\t the
\n\t      approved scheme and the area or route to which
\n\t      it  relates shall be called the notified\tarea
\n\t      or notified route:\n<\/p><\/blockquote>\n
\t      Provided that no such scheme which relates  to
\n\t      any interState route shall be deemed to be  an
\n\t      approved scheme unless  it  has the   previous
\n\t      approval of the Central Government.
\n\t      (4) Notwithstanding anything contained in this
\n\t      section, where a scheme is not published as an
\n\t      approved\tscheme under sub-section (3) in\t the
\n\t      Official\tGazette within a period of one\tyear
\n\t      from  the date of publication of the  proposal
\n\t      regarding\t the scheme in the Official  Gazette
\n\t      under  sub-section (1), the proposal shall  be
\n\t      deemed to have lapsed.\n<\/p><\/blockquote>\n
Section\t 100  provides for filing of objections\t before\t the
\nState Government within 30 days from the date of the  publi-
\ncation of the proposed scheme in the Official Gazette. Under
\nsub-section  (2) the State Government may approve or  modify
\nthe  proposed  scheme after considering the  objections\t and
\nhearing\t the  objectors.  Under sub-section  (3)  the  State
\nGovernment is required to publish the approved scheme in the
\nOfficial Gazette and also in one newspaper. On the  publica-
\ntion  of  the approved scheme in the Official  Gazette,\t the
\narea or route to which it relates shall be called the  noti-
\nfied area or notified route. Sub-section (4) lays down\tthat
\nif  a scheme is not published as an approved scheme  in\t the
\nGazette within one year from the date of publication of\t the
\nproposed scheme in the Official Gazette, the proposed scheme
\nshall  be  deemed  to have lapsed. Sub-section\t(4)  in\t our
\nopinion\t prescribes a period of limitation during which\t the
\nState Government should hear and consider the objections  of
\nthe  objectors and finalise the scheme and publish the\tsame
\nin the Official Gazette and on its failure to do so with  in
\nthat  period, penal consequences would ensue as a result  of
\nwhich  the scheme itself shall stand lapsed. The object\t and
\npurpose of Section 100(4) is to avoid delay in finalising  a
\nscheme.\t The  Parliament was aware that under  the  old\t Act
\nschemes were not
\n508<\/span>
\nfinalised for long years as a result of which public  inter-
\nest suffered, therefore, it prescribed a time frame for\t the
\napproval and publication of schemes.\n<\/p>\n
    The\t provisions  of Section 100 are\t applicable  to\t the
\nschemes proposed under the new Act. The question is  whether
\nit  would apply to a scheme proposed under Section  68-C  of
\nthe old Act. The Legislature was conscious that a number  of
\nschemes proposed under the old Act were pending approval  on
\nthe date of the commencement of the Act, it therefore made a
\nprovision for saving those schemes by enacting Section 2  17
\nof the Act, which is as under:\n<\/p>\n
\t      “217. Repeal and savings–(1) The Motor  Vehi-
\n\t      cles Act, 1939 (4 of 1939) and any law  corre-
\n\t      sponding\tto  that Act in force in  any  State
\n\t      immediately  before the commencement  of\tthis
\n\t      Act in that State (hereinafter in this Section
\n\t      referred\tto as the repealed  enactments)\t are
\n\t      hereby repealed.\n<\/p><\/blockquote>\n
\t\t\t(2)  Notwithstanding the  repeal  by
\n\t      sub-section (1) of the repealed enactments–\n<\/p><\/blockquote>\n
\t\t\t (a) any notification, rule, regula-
\n\t      tion, order or notice issued, or any  appoint-
\n\t      ment or declaration made or exemption granted,
\n\t      or  any confiscation made, or any\t penalty  or
\n\t      fine  imposed, any forfeiture cancellation  or
\n\t      any  other  thing done, or  any  other  action
\n\t      taken  under the repealed enactments,  and  in
\n\t      force  immediately  before  such\tcommencement
\n\t      shall,  so far as it is not inconsistent\twith
\n\t      the provisions of this Act, be deemed to\thave
\n\t      been  issued,  made, granted,  done  or  taken
\n\t      under the corresponding provision of this Act;\n<\/p><\/blockquote>\n
………………………………..
\n……………………………….\n<\/p>\n
\t      (e) any scheme made under section 68-C of\t the
\n\t      Motor Vehicles Act, 1939 (4 of 1939) or  under
\n\t      the corresponding law, if any, in force in any
\n\t      State  and  pending  immediately\tbefore\t the
\n\t      commencement of this Act shall be disposed  of
\n\t      in  accordance with the provisions of  section
\n\t      100 of this Act;\n<\/p>\n
\t      (f) the permits issued under sub-section (I-A)
\n\t      of  section  68-F of the Motor  Vehicles\tAct,
\n\t      1939 (4 of 1939), or under
\n\t      509<\/span>
\n\t      the corresponding provisions, if any, in force
\n\t      in any State immediately before the  commence-
\n\t      ment  of this Act shall continue to remain  in
\n\t      force until the approved scheme under  Chapter
\n\t      VI of this Act is published.\n<\/p>\n
……………………………..\n<\/p>\n
Under  sub-section  (1) the old Act has\t been  repealed\t but
\nunder  subsection (2) inspite of repeal the  Parliament\t has
\nmade  provisions for saving the schemes proposed under\tSec-
\ntion  68-C of the old Act. Clause (e) of Section 217 (2)  of
\nthe new Act provides that notwithstanding the repeal of\t the
\nold Act a scheme proposed under Section 68-C of the old Act,
\nif  pending immediately before the commencement of  the\t Act
\nshall  be  finalised in accordance with\t the  provisions  of
\nSection 100 of the new Act. The Legislative intent is  clear
\nthat  the. schemes proposed under Section 68-C. of  the\t old
\nAct  pending on the date of the commencement of the new\t Act
\nshould\tnot lapse instead those schemes should be  finalised
\nin accordance with the provisions of Section 100 of the\t new
\nAct.  The pending schemes were therefore saved and the\tsame
\nwere  to  be finalised within one year\tas  contemplated  by
\nSection\t 100 (4) of the new Act. Section 100 (4)  lays\tdown
\nthat if the proposed scheme is not finalised within one year
\nfrom the date of its publication in the Official Gazette, it
\nshall be deemed to have lapsed but that applies to a  scheme
\nproposed  under\t the new Act and not to\t a  scheme  proposed
\nunder Section 68-C of the old Act. If the period of one year
\nfrom  the date of the publication of the proposed scheme  is
\napplied to the pending schemes under Section 68-C of the old
\nAct, the purpose and object of saving the old schemes  under
\nClause\t(e)  of\t Section 2 17 (2) of the new  Act  would  be
\nfrustrated.\n<\/p>\n
Learned\t counsel for the appellant urged that since  Section
\n17(2)(e)  provides for the finalisation of a pending  scheme
\npublished  under the old Act in accordance with\t the  provi-
\nsions  of Section 100 of the new Act, the period of  limita-
\ntion  of one year prescribed under sub-section (4)  of\tthat
\nsection would also apply. He further urged that since period
\nof one year had already expired from the date of the  publi-
\ncation\tof  the scheme under Section 68-C of  old  Act,\t the
\nscheme automatically lapsed and the same could not be final-
\nly published under Section 100 of the Act.\n<\/p>\n
    If\tthe appellant’s contention is accepted\tthe  schemes
\npublished  under  Section 68-C of the old  Act\twould  lapse
\nafter the expiry of the period of one year from the date  of
\nthe publication of the scheme in
\n510<\/span>
\nthe  Official Gazette in accordance with the  provisions  of
\nthe  old  Act.\tOn the other hand we  find  that  Section  2
\n17(2)(e)  permits finalisation of a scheme  published  under
\nSection\t 68-C of the old Act if the same was pending on\t the
\ndate  of the commencement of the new Act. The old  Act\tdid.
\nnot  provide any period of limitation consequently a  number
\nof schemes published under Section 68-C of the old Act\twere
\npending on the date of commencement of the new Act  although
\na period of one year had already expired. If the  Parliament
\nintended  to apply the limitation of period of one  year  to
\nthe pending schemes published under Section 68-C of the\t old
\nAct, the new Act could have made provisions to that  effect.
\nOn  the contrary Section 217(2)(e) has been enacted to\tsave
\nthe  schemes  published under Section 68-C of  the  old\t Act
\nwhich  were pending on the date of the commencement  of\t the
\nAct  with a further direction that the same shall  be  fina-
\nlised in accordance with Section 100 of the Act. Sub-section
\n(4)  of\t Section  100 provides that where a  scheme  is\t not
\npublished as approved under sub-section (3) within period of
\none year from the date of publication of the proposal in the
\nOfficial  Gazette under sub-section (1), the proposal  shall
\nbe  deemed to have lapsed. A scheme published under  Section
\n68-C  of the old Act pending on the date of commencement  of
\nthe Act could not be a scheme proposed under sub-section (1)
\nof Section 100, therefore, the rigour of period of one\tyear
\nas applicable to a scheme proposed under sub-section (1)  of
\nSection\t 100 could not apply to a scheme under Section\t68-C
\npending\t on the date of commencement of the Act. It was\t not
\nmeant  that a scheme u\/s 68-C of the old Act pending on\t the
\ndate  of  commencement\tof the new Act may  be\tapproved  or
\nfinalised with leisure without any time limit.
\n    There  appears  to\tbe some\t apparent  conflict  between
\nSection\t 100(4)\t and  Section 217(2)(e) of  the\t Act.  While
\nSection\t 217(2)(e) permits finalisation of a scheme  in\t ac-
\ncordance with Section 100 of the new Act sub-section (4)  of
\nSection 100 lays down that a scheme if not finalised  within
\na period of one year shall be deemed to have lapsed. If\t the
\nappellant’s  contention is accepted then  Section  217(2)(e)
\nwill  become nugatory and no scheme published under  Section
\n68-C of the old Act could be finalised under the new Act. On
\nthe other hand if the period of one year as prescribed under
\nSection 100(4) is not computed from the date of\t publication
\nof the scheme under Section 68-C of the old Act and  instead
\nthe  period  of one year is computed from the date  of\tcom-
\nmencement of the Act both the provisions could be given full
\neffect.\n<\/p>\n
It  is settled principle of interpretation that where  there
\nappears
\n511<\/span>
\nto  be\tinconsistency in two sections of the same  Act,\t the
\nprinciple  of harmonious construction should be followed  in
\navoiding  a head on clash. It should not be lightly  assumed
\nthat  what the Parliament has given with one hand,  it\ttook
\naway with the other. The provisions of one section of  stat-
\nute  cannot be used to defeat those of another unless it  is
\nimpossible to reconcile the same. In Venkataramana Devaru v.
\nState  of  Mysore,  AIR 1958 SC 225 at p.  268,\t this  Court
\nobserved:\n<\/p>\n
\t      “The rule of construction is well-settled that
\n\t      when there are in an enactment two  provisions
\n\t      which  cannot be reconciled with\teach  other,
\n\t      they should be so interpreted that, if  possi-
\n\t      ble,  effect should be given to both. This  is
\n\t      what.  is\t known\tas the\trule  of  harmonious
\n\t      construction.”\n<\/p><\/blockquote>\n
The essence of harmonious construction is to give effect  to
\nboth the provisions. Bearing these principles in mind it  is
\nlegitimate. to hold that Section 100(4) prescribed period of
\nlimitation of one year in respect the scheme proposed  under
\nthe  provisions\t of  the new Act, while in they\t case  of  a
\nscheme\tunder  Section 68-C of the old Act, pending  on\t the
\ndate  of enforcement of the new Act, namely, 1.7. 1989,\t the
\nperiod one year as prescribed under Section 100(4) should be
\ncomputed from the date of commencement of the new Act.\tThis
\ninterpretation\t would\t give  full  effect  to\t  both\t the
\nSections–Section  100(4) and Section 2 17(2)(e) of the\t new
\nAct.\n<\/p>\n
    Learned  counsel for the appellant placed reliance on  a
\nDivision  Bench\t decision  of the Allahabad  High  Court  in
\nSantosh\t Kumar & Ors. v. Regional Transport Authority,\tCMWP
\nNo.  2 1773\/89, decided on 16th March, 1990. In that case  a
\nDivision  Bench\t of Allahabad High Court held that  a  draft
\nscheme\tunder Section 68-C of the old Act published in\t1986
\nshall  be deemed to have lapsed on the date of the  enforce-
\nment  of  the new Act in view of  the  absolute\t prohibition
\ncontained  in  Section\t100(43 of the new  Act\tagainst\t the
\ncontinuance  of\t any  scheme after one year.  We  have\tgone
\nthrough the judgment of the Division Bench carefully but  in
\nour opinion the view taken by the High Court of Allahabad is
\nunsustainable  in law. The learned Judges  constituting\t the
\nBench  failed  to notice the  legislative  intendment  under
\nSection 217(4)(e) of the new Act which kept alive the scheme
\npublished under Section 68-C of the old Act for the purposes
\nof  being  finalised  under the new Act.  We  are  therefore
\nclearly of the opinion that the view taken by the  Allahabad
\nHigh Court is incorrect.\n<\/p>\n
In the instant ease, the appellant had filed a writ petition
\nin May,
\n512<\/span>
\n1990  and  obtained  an interim order from  the\t High  Court
\nrestraining  the State Government from publishing the  final
\nNotification under Section 100(3) of the new Act. The  State
\nGovernment  published the final notification  under  Section
\n100(3)\tof the new Act on 29.8. 1990 after the dismissal  of
\nthe  writ petition by the Division Bench of the High  Court.
\nThe  period  of one year with regard to the  pending  scheme
\nexpired\t on  1.7.1990 but since the appellant  had  obtained
\nstay  order from the High Court, the State Government  could
\nnot  publish  final  notification.  Explanation\t to  Section
\n100(4) of the new Act lays down that in computing the period
\nof  one year any period during which the publication of\t the
\napproved  scheme under Section 100 is held up on account  of
\nany  stay or order of any court, shall be excluded.  On\t the
\napplication  of the Explanation the period during which\t the
\nappellant had obtained stay order against the State  Govern-
\nment is liable to be excluded in computing the period of one
\nyear.  Admittedly in the instant case stay order  passed  by
\nthe  High  Court remained in force from May to\t9th  August,
\n1990. On the exclusion of that period the final notification
\nissued\tby the State Government under Section 100(3) of\t the
\nnew Act on 29.8.1990 was well within the prescribed period.
\n    In\tview of the above discussion, we are of the  opinion
\nthat  the High Court rightly dismissed the appellant’s\twrit
\npetition. The appeal fails and is accordingly dismissed with
\ncosts.\n<\/p>\n
V.P.R.\t\t\t\t\t\t      Appeal\ndismissed.\n513<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Krishan Kumar vs State Of Rajasthan And Ors on 9 August, 1991 Equivalent citations: 1992 AIR 1789, 1991 SCR (3) 500 Author: K Singh Bench: Singh, K.N. (J) PETITIONER: KRISHAN KUMAR Vs. RESPONDENT: STATE OF RAJASTHAN AND ORS. DATE OF JUDGMENT09\/08\/1991 BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) SAWANT, P.B. […]<\/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":[30],"tags":[],"class_list":["post-52903","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKrishan Kumar vs State Of Rajasthan And Ors on 9 August, 1991 - 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\/krishan-kumar-vs-state-of-rajasthan-and-ors-on-9-august-1991\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Krishan Kumar vs State Of Rajasthan And Ors on 9 August, 1991 - 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