100 of 1958
Petition under Article 32 of the Constitution for enforcement of fundamental rights
M K Nambyar K Mangachari G Suryanarayana and P V R Patachari for the petitioners and intervener
M C Setalvad Attorney General for India R Ganapathi lyer P R Ramachandra Rao and T M Sen for the respondents
November 5
The Judgment of Das C J Bhagwati and Subba Rao JJ was delivered by Subba Rao J Sinha and Wanchoo JJ delivered separate judgments
SUBBA RAO J This is an application under article 32 of the Constitution for the enforcement of the petitioners fundamental right to carry on the business of motor transport in Krishna District in Andhra Pradesh and for prohibiting the respondents from taking over the routes on which the petitioners have been plying their stage carriages
41 322 The petitioners have been carrying on motor transport business in Krishna District for several years past by obtaining permits under the IV of 1939 as amended by Act 100 of 1956 hereinafter called the Act in respect of various routes
They estimate the value of their investment in the business at a sum of Rs 2000000
The amending Act inserted a new Chapter IV A in the Act providing for the State Transport Undertaking running the business to the exclusion complete or partial of all other persons doing business in the State
Chapter IV A provided for a machinery called the State Transport Undertaking defined under section 68 Ab as an undertaking providing road transport service to run the transport business in the State
In exercise of the powers conferred by section 68 C of the Act one Shri Guru Pershad styled as the General Manager of the State Transport Undertaking of the Andhra Pradesh Road Transport published a scheme for the purpose of providing an efficient adequate economical and properly coordinated transport service in public interest to operate the transport service mentioned therein with effect from the date notified by the State Government
Objections were in vited within 30 days from the date of the publication of the proposal in the Official Gazette viz November 14 1957
138 objections were received
Individual notices were issued by the State Government by registered post to all the objectors
On December 26 1957 the Secretary to Government Home Department in charge of transport heard the objections
88 of the objectors represented their cases through their advocates  three of them represented their cases personally and the rest were not present at the time of hearing
After considering all the objections and after giving an opportunity to the objectors their representatives and the representatives of the State Transport Undertaking the State Government found that the objections to the scheme were devoid of substance
On that finding the State Government approved of the scheme in GO Ms 58 Home Transport IV dated January 7 1958 and the approved scheme was published in the 323 Andhra Pradesh Gazette dated January 9 1958
The scheme was ordered to come into force with effect from January 10 1958
The Government of Andhra Pradesh also established a Road Transport Corporation under the LXIV of 1950 called the Andhra Pradesh Road Transport Corporation with effect from January I I  1958 and by its order dated January 11 1958 the said Corporation was empowered to take over the management of the erstwhile Road Transport Department
The said Transport Corporation is now implementing the scheme of nationalisation of bus transport under a phased programme
The petitioners who are plying their buses on various routes in Krishna District apprehending that their routes would be taken over by the Corporation pursuant to the aforesaid scheme seek the aid of this Court to protect their fundamental right to carry on their business against the action of the State Corporation on various grounds
Mr MK Nambiar appearing for the petitioners contends that the scheme in pursuance of which the bus routes operated by the petitioners are sought to be taken over by the State Road Transport Corporation is ultra vires and illegal on two grounds viz a that the provisions of Chapter IV A of the Act violates the fundamental rights secured to the citizens by the Constitution and b that the scheme frained under the Act is ultra vires the Act
The first ground is sought to be supported by the contention that Chapter IV A of the Act in substance and effect authorizes the State to acquire the undertakings of citizens without providing for compensation for the entire undertakings and therefore it is a fraud on the Constitution particularly on article 31 thereof
Shortly stated his argument is that under article 31 of the Constitution no law shall be made for the transfer of ownership or right to possession of any property to the State or to a Corporation without fixing the amount of compensation or specifying the principles on which compensation is to be determined and given and that Chapter IV A of the Act is a colourable legislation enabling such a transfer of ownership without providing 324 for compensation for the property transferred under the guise of cancellation of a permit
To appreciate this argument it would be convenient at this stage to read the relevant provisions of the Articles of the Constitution omitting the words unnecessary for the purpose of this case
article 191  All citizens shall have the right g to practise any profession or to carry on any occupation trade or business
6 Nothing in sub clause g of the said clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub clause and in particular nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to i          ii the carrying on by the State or by a Corporation owned or controlled by the State of any trade business industry or service whether to the exclusion complete or partial of citizens or otherwise
article 311 No person shall be deprived of his property save by authority of law
2 No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which and the manner in which the compensation is to be determined and given and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate
2A Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a Corporation owned or controlled by the State it shall not be deemed to 325 provide for the compulsory acquisition or requisitioning of property notwithstanding that it deprives any person of his property
 The Constitution First Amendment Act of 1951 which came into force on June 18 1951 amended cl
6 of article 19 by adding sub cl
ii to that clause along with other amendments
Clause 2 of article 31 has been amended and cl
2A has been inserted by the Constitution Fourth Amendment Act 1955
Clause 2A has been inserted with a view to supersede the majority decisions of this Court in the cases of State of West Bengal vs Subodh Gopal Bose 1 Dwarkadas Shriniwas of Bombay vs Sholapur Spinning and Weaving Co Ltd 2 and Saghir Ahmed vs State of UP 3
In Subodh Gopal s case a majority of a Bench of this Court held Clauses 1 and 2 of article 31 are thus not mutually exclusive in scope and content but should in my view be read together and understood as dealing with the same subject namely the protection of the right to property by means of the limitations on the State power referred to above the deprivation contemplated in clause 1 being no other than the acquisition or taking possession of property referred to in clause 2
 In Dwarkadas s case 1this Court while confirming the aforesaid principle held that the word acquisition  has quite a wide concept meaning the procuring of property or the taking of it permanently or temporarily and need not be confined to the acquisition of legal title by the State in the property taken possession of In Saghir Ahmed s case 3 applying the said principles this Court held at p 728  If the effect of prohibition of the trade or business of the appellants citizens by the impugned legislation amounts to deprivation of their property or interest in a commercial undertaking within the meaning of article 31 2 of the Constitution does not the legislation offend against the provision of that clause inasmuch as no provision for compensation has been made in the Act  1   608
2  3   728
326 It may be noted that though the said decision was given after the Constitution First Amendment Act 195 1 amending article 19 6 it dealt with a matter that arose before the said amendment came into force
In the aforesaid decisions this Court by a majority broadly laid down the two principles a that both cls
1 and 2 of article 31 dealt with the doctrine of eminent domain  they dealt with the topic of compulsory acquisition of property  and b that the word acquisition  does not necessarily imply acquisition of legal title by the State in the property taken possession of but may comprehend cases where the citizen has been substantially dispossessed  of the right to onion the property with the result that the right to enjoy property has been seriously  impaired or the value of the property has been materially  reduced by the impugned State legislation
The Constitution Fourth Amendment Act 1955 amended cl
2 of article 31 and inserted cl
2A in that Article
The amendments in so far as they are relevant to the present purpose substitute in place of the words taken possession of or acquired  the words compulsorily acquired or requisitioned  and provide an explanation of the words acquired and requisitioned  in cl
The result is that unless the law depriving any person of his property provides for the transfer of the ownership or right to the possession of any property to the State the law does not relate to acqtuisition or requisition  of property and therefore the limitations placed upon the legislature under cl
2 will not apply to such law
While realising this legal position brought about by the amendment to the Con stitution the learned counsel contends that the right to do business is property as held in Saghir Ahmad s case1 and that Chapter IV A of the Act in effect transfers ownership of that business to the Corporation owned or controlled by the State though not directly but by the dual process of preventing the citizen from doing the business and enabling the Corporation to do the same business in his place and that that result is effected by a device with a view to avoid payment of 1 1955 i SCR 707 728
327 compensation for the entire business so transferred
The colourable nature of the legislation the argument proceeds lies in its device or contrivance to evade limitations imposed under article 31 2
To solve the problem presented it is necessary to have a correct appreciation of the phrase colourable legislation 
This Court considered this question in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhangal
In that case the constitutional validity of the Bihar Land Reforms Act 1950 Bihar 30 of 1950 was questioned
In the context of the Bihar Land Reforms Act 1950 Bihar 30 of 1950 it was contended that the impugned Act was a fraud on the Constitu tion and therefore void
It was stated that the Act while pretending to comply with the Constitutional provisions when it provided for the payment of compensation in effect produced a scheme for non payment of compensation by shift or contrivance
Mahajan J as he then was in rejecting the argument observed at p 947 thus  All these principles are well settled
But the question is whether they have any application to the present case
It is by no means easy to impute a dishonest motive to the legislature of a State and hold that it acted mala fide and maliciously in passing the Bihar Land Reforms Act or that it perpetrated a fraud on the Constitution by enacting this law
It may be that some of the provisions of the Act may operate harshly on certain persons or a few of the zamindars and may be bad if they are in excess of the legislative power of the Bihar Legislature but from that circumstance it does not follow that the whole enactment is a fraud on the Constitution
From the premises that the estates of half a dozen zamindars may be expropriated without payment of compensation one cannot jump to the conclusion that the whole of the enactment is a fraud on the Constitution or that all the provisions as to payment of compensation are illusory The aforesaid observations lend support to the argument that the doctrine of colourable legislation imputes dishonest motive or mala fides to the State 1 328 making the law
But Mukherjea J as he then was clarified the legal position in K C Gajapati Narayan Deo vs The State of Orissa 1
It was contended in that case that the Orissa Estates Abolition Act 1952 was a colourable legislation and as such void
Adverting to that argument Mukherjea J as he then was says at p 10 thus  It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature
The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law
If the legislature is competent to pass a particular law the motives which impelled it to act are really irrelevant
On the other hand if the legislature lacks competency the question of motive does not arise at all
Whether a statute is constitutional or not is thus always a question of power  
If the Constitution of a State distributes the legislative powers amongst different bodies which have to act within their respective spheres marked out by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamedtal rights questions do arise as to whether the legislature in a particular case has or has not in respect to the subject matter of the statute or in the method of enacting it transgressed the limits of its constitutional powers
Such transgression may be patent manifest or direct but it may also be disguised covert and indirect and it is to this latter class of cases that the expression colourable legislation  has been applied in certain judicial pronouncements
The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers yet in substance and in reality it transgressed these powers the transgression being veiled by what appears on proper examination to be a mere presence or disguise
As was said by Duff J in Attorney General for Ontario vs Reciprocal Insurers at p 337  Where the law making authority is of a limited or qualified character it may be necessary to examine 1 1954 SCR i 329 with some strictness the substance of the legislation for the purpose of determining what is that the legislature is really doing  In other words it is the substance of the Act that is material and not merely the form or outward appearance and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon the form in which the law is clothed would not save it from condemnation
The legislature cannot violate the constitutional prohibitions by employing an indirect method
 We have quoted the observations in extensor as they neatly summarise the law on the subject
The legal position may be briefly stated thus The legislature can only make laws within it legislative competence
Its legislative field may be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution
The legislature cannot over step the field of its competency directly or indirectly
The Court will scrutinize the law to ascertain whether the legislature by device put ports to make a law which though in form appears to be within its sphere in effect and substance reaches beyond it
If in fact it has power to make the law its motives in making the law are irrelevant
The learned counsel for the petitioners can only succeed if he can establish  that the provisions of Chapter IV A constitute colourable legislation within the meaning of the aforesaid definition
To test the validity of the argument it may be summarised thus  Business is I property  within the meaning of article 191 g of the Constitution
Chapter IV A of the Act transfers the business to the Corporation controlled
by the State Government
Such a law should have provided for payment of compensation for the business transferred to the State Corporation  instead it adopted the device of cancelling the permit of the citizen and giving it to the Corporation and providing compensation to the citizen only for tile unexpired period of the permit
42 330 We shall now proceed to ascertain whether any of the aforesaid ingredients of device or contrivance are established in this case
Does Chapter IV A in effect and substance authorize in law or fact the transfer of the business of the citizens to the State or a Corporation owned or controlled by the State  Under article 191 of the Constitution every citizen has a fundamental right to carry on any business subject to reasonable restrictions imposed by the State under cl
6 of article 19 in the interest of the general public
The Constitution First Amendment Act 1951 reserved to the State the right to make law for carrying on by the State or by a Corporation owned or controlled by the State any business to the exclusion complete or partial of the citizens or otherwise
The Constitution therefore enables the State to make a law placing reasonable restrictions on the right of a citizen to do business or to create a monopoly or to make a law empowering the State to carry on business to the exclusion of a citizen
The right to carry on business in transport vehicles on public pathways is certainly one of the fundamental rights recognized under article 19 of the Constitution
The IV of 1939 regulates the right of a citizen to carry on the said business for protecting the rights of the public generally Permit  is defined under cl
20 of section 2 of the Act to mean the document issued by the Commission or a State or Regional Transport Authority authorising the use of a transport vehicle as a contract carriage or stage carriage or authorising the owner as a private carrier or public carrier to use such vehicle
Section 57 of the Act prescribes the procedure for applying for and granting permits to carry on the business in transport vehicles on public highways
Section 47 lays down the matters to be considered by the Regional Transport Authority in the disposal of applications for such transport carriers
Section 59 gives the conditions of every permit and also prohibits the transfer of permit
from one person to another except with the permission of the Transport Authority
Under section 60 the Transport Authority which granted permit may cancel the permit or may suspend it for 331 such period as it thinks fit for any of the reasons mentioned therein
Section 61 provides for cases where a permit holder dies
That section enables the success 
sor to use the permit for a period of three months and to get the permit transferred to him subject to the conditions laid down therein
Section 68 F authorises the Regional Transport Authority for the purpose of giving effect to an approved scheme in respect of a notified area or notified route to refuse to entertain any application for the renewal of any other permit to cancel any existing permit to modify the terms of any existing permit so as to render the permit ineffective beyond a specified date and to reduce the number of vehicles authorised to be used under the permit
It is manifest from the aforesaid provisions that the Regional Transport Authority can in exercise of its regulatory power conferred on it in the interest of the public issue a permit to a person in regard to a stage carriage authorising him to use the same in a particular route for a particular period subject to the conditions laid down in the permit suspend or cancel the same under specified conditions and renew or refuse to renew the same after the expiry of the period subject to the conditions laid down in the Act
Under Ch
IV A if a scheme has been promulgated empowering the State Transport Undertaking to take on hand the transport service in relation to any area route or portion thereof to the exclusion of any person who has been carrying on the business in that route the Transport Authority is empowered to cancel the existing permit and issue a permit to the State Transport Undertaking
It cannot be said that if the Transport Authority cancels the permit of a person carrying on his transport business in a route and gives it to another the process in
volves a transfer of business or undertaking of the quondam permit holder to the new entrant
Indeed the process does not involve even a transfer of the permit from one to another
The true position is that one permit comes to an end and another permit comes into being
The power of cancellation of a permit in favour of one and issuing a new permit to another are 332 necessary steps in the regulatory jurisdiction entrusted to the Regional Transport Authority
The business of one has nothing to do with the business of another they are two independent businesses carried on under two different licences
If that be the true legal position in the case of issue of permits before Chapter IV A was inserted in the Act we cannot see that the power of cancellation of an existing permit and issuing one to the State Transport Undertaking should involve a transfer of the previous permit holder s business to the State Transport Undertaking
The argument that the process contemplated by section 68 F of the Act involves two integrated steps viz cancelling the existing permit and preventing the previous permit holder from doing the business and then issuing a permit to a nominee of the State to enable it to do the same business and thereby in effect and substance transferring the business of the existing permit holder to the State or its nominee appears to be attractive but in our view it is fallacious
It may be that by the said process the existing permit holder is precluded from doing his business and it may also be that the State Transport Undertaking carries on a similar business but by no stretch of language or extension of legal fiction can it be said that the State Transport Undertaking is doing the same business which the previous permit holder was doing
If there is no transfer in the case of cancellation of a permit in favour of one and issue of a new permit to another equally there cannot be any such transfer in the case of issue of a permit to the State Transport Undertaking
Looking at the business not simply from the standpoint of the right to do it or the activity involved in it but also from the standpoint of its assets it becomes clear that no assets pertaining to the business of the quondam permit holder are transferred to the State Transport Undertaking
Though the cancellation of the permit has the effect of crippling his business none of the assets of the business is taken over by the State Transport Undertaking he is left in the possession of the entire assets of the business
It is no doubt true that in the context of the scheme of nationalisation he may not be able to make 333 use of his assets in other routes or dispose of them at a great advantage to himself but it cannot be said that by cancelling the permit what is left with him is only the  husk 
In fact the entire assets of the business are left with him and the State Transport Undertaking has not taken over the same
Lastly it is said that sections 68 G of the Act which provides for payment of compensation to the holder of the permit indicates that the legislature proceeded on the basis that the cancellation of a permit involved a transfer of property  from the previous permit holder to the State
In our view no such irresistible conclusion flows from the said provision as the permit is cancelled before the expiry of the term fixed therein the legislature thought it fit and proper to give some compensation to the permit holder who is prevented from doing his business for the unexpired period of the permit
Whether it is enacted by way of abundant caution as the learned Attorney General says or the provision is made by the legislature to mitigate the hardship that is caused to the permit holder by the premature cancellation of the permit we find it difficult to draw the inference from the said provision that the legislature assumed that a transfer of the business is involved in the process laid down in Chapter IV A
We therefore bold that Chapter IV A of the Act does not provide for the transfer of ownership or the right to possession of any property to the State or to a Corporation Owned or controlled by the State
Under article 31 of the Constitution unless there is such a transfer the law shall be deemed not to provide for compulsory acquisition or requisition of property  and therefore in such a case no compensation need be provided for under article 312 of the Constitution
We therefore hold that Chapter IV A of the Act does not infringe the fundamental right of the petitioners under article 31 of the Constitution of India
The next argument of the learned counsel for the petitioners is that even if Chapter 1V A of the Act is constitutionally valid the petitioners could be deprived of their rights only in accordance with the law enacted for the purpose and in the manner provided 334 therein and that in the present case the scheme was promulgated in derogation of the provision of the said Chapter
The learned counsel contends that the provisions of Bs
68 C and 68 D have not been complied with in framing the scheme
The learned counsel s contentions in this regard fall under different sub heads and we shall proceed to consider them seriatim
The first contention is that no State Transport Undertaking is constituted under the Central Act and therefore the scheme initiated by the said Transport Undertaking constituted under the Motor Vehicles Hyderabad Amendment Act 1956 as bad
To appreciate this argument some of the facts may be stated
Before the State of Andhra Pradesh was formed in November 1956 eight districts popularly called the Telengana which are now in the Andhra Pradesh State were formerly part of the Hyderabad State
On September 29 1956 the Motor Vehicles Hyderabad Amendment Act 1956 became law whereunder Chapter IV A was inserted in the Central Act in its application to the State of Hyderabad
Under section 68_ A of Chapter IV A of that Act the State Transport Undertaking was defined to mean the Road Transport Department of the State providing road service
Under that Act therefore the Road Transport Department of the Hyderabad State was functioning as a statutory authority
After the States Reorganisation Act came into force the said eight districts of the Hyderabad State became part of the State of Andhra Pradesh with the result that the Road Transport Department of the Hyderabad State became the Road Transport Department of the State of Andhra Pradesh though it was exercising its powers only in respect of that part of the Andhra Pradesh State popularly known as Telengana
After the Andhra Pradesh State was formed Sri Guru Pershad styled as the General Manager of the Andhra Pradesh Road Transport Undertaking published the scheme under section 68 C of the Act
The argument is that the State Transport Authority constituted under Chapter IV A of the Hyderabad Amendment Act was not legally 335 constituted as the State Transport Undertaking under the Central Act and therefore the initiation of the scheme by the Hyderabad State Transport Undertaking which has no legal status under the Central Act was bad
It is also pointed out that the State Transport Authority under the Hyderabad Act differs from that under the Central Act in the following three respects 1 statutory parentage 2 character and constitution  and 3 territorial jurisdiction and therefore the authority constituted under the Hyderabad Act cannot function under the Central Act
This argument has no relevancy to the facts of the present case
We are not concerned in this case with a statutory authority created under one Act and pressed into service for the purpose of another Act when the latter has adopted the said statutory authority as one constituted under that Act
Here there is the Andhra Pradesh Road Transport Department providing road transport service in Telengana which is a part of that State and that Department when it was a part of the Hyderabad State was functioning as part of the Hyderabad State Secretariat
The mere fact that the Road Transport Department of the Andhra Pradesh State was originally part of a department of another State and came under the definition of the State Transport Undertaking of the Hyderabad Act could not make the said department any the less the Road Transport Department of the Andhra Pradesh State
Assuming
for a moment that the Hyderabad Act is still in force in the Telengatia area there is nothing in law which prevents a department coming under the definition of two statutes
Under the Act the State Transport Undertaking means an Undertaking providing road trasport service where such undertaking is carried on by a State Government
This section does not prescribe the parentage of the undertaking or impose a condition that the undertaking should be providing transport service throughout the State
The State Government maintained the department for providing road transport service and therefore the department clearly falls within the definition of State Transport Undertaking
The citation from Salmond on 336 Jurisprudence to the effect that the law in creating legal persons always does so by personifying some real thing does not touch the question that falls to be decided in this case for the real thing viz the department falls under the definition of both the Acts and therefore it can function as a statutory authority under both the Acts
We therefore hold that the Road Transport Department of the Andhra Pradesh Government is a State Transport Undertaking under the Central Act and therefore it was within its legal competence to initiate the scheme
The next objection raised is that the scheme was published by Sri Guru Pershad the General Manager of the State Transport Undertaking and that it has not been established that he had been legally authorized to represent the State Transport Undertaking the statutory authority constituted under the Act
We have already held that the Transport Department of the disintegrated Hyderabad State continued to function as the Transport Department of the Andhra Pradesh State after the merger of Telengana areas with the Andhra State
In the affidavit filed by the petitioners it is stated that Sri Guru Pershad was the General Manager of the Road Transport Department of the erstwhile Hyderabad State that he was never appointed as the General Manager of the State Transport Undertaking of the Andhra Pradesh State and that therefore he had no legal authority whatever to publish the scheme
In the counter affidavit filed on behalf of the first respondent it is averred that the General Manager of the Andhra Pradesh Road Transport which was a State Transport Undertaking within the meaning of section 68 B of the Act prepared a scheme and that was published in the Andhra Pradesh Gazette on November 14 1957
It is therefore a common case that Sri Guru Pershad was the General Manager of the Road Transport Undertaking of the erstwhile Hyderabad State
It is not denied that Sri Guru Pershad continued to be the General Manager of that Department functioning in Andhra Pradesh
We have already held that the same department was the statutory authority functioning under 337 the Central Act
Sri Guru Pershad was also the General Manager of that undertaking
In the circumstances there is no substance in the contention that Sri Guru Pershad should have been appointed as the General Manager of the Undertaking under the Central Act
This is the first argument under a different garb
The preexisting Road Transport Department of the erstwhile Hyderabad State with its General Manager Sri Guru Pershad continued to function as a statutory authority under the Central Act and therefore he had the legal authority to represent the State Transport Undertaking which was a statutory authority
lie published the scheme and subscribed it as Guru Pershad the General Manager of the State Transport Undertaking Andhra Pradesh State Road Transport
The notification therefore must be held to have been issued by the State Transport Undertaking functioning under the Central Act
The learned counsel then contends that the scheme published does not disclose that the State Transport Undertaking was of the opinion that the scheme was necessary in the interests of the public and therefore is the necessary condition for the initiation of the scheme was not complied with the scheme could not be enforced
Section 68 C says that where any State Transport Undertaking is of opinion that for specified reasons it is necessary in the public interest that road port service should be run or operated by the Transport Undertaking it may prepare a scheme giving particulars of the scheme and publish it in the Official Gazette
An express recital of the formation of the opinion by the Undertaking in the scheme is not made a condition of the validity of the scheme
The scheme published in terms of the section shall give particulars of the nature of the service proposed to be rendered the area or route proposed to be covered and such other particulars respecting thereto
It is true that the preparation of the scheme is made to depend upon the subjective opinion of the State Undertaking as regards the necessity for such a scheme
The 43 338 only question therefore is whether the State Transport Undertaking formed the opinion before preparing the scheme and causing it to be published in the Official Gazette
The scheme published as already noticed was signed by Guru Pershad General Manager State Transport Undertaking Andhra Pradesh Road Transport
The preamble to the scheme reads   In exercise of the powers conferred by section 68 C of the  it is hereby proposed for the purpose of providing an efficient adequate economical and properly coordinated road transport service in public interest to operate the following transport services as per the particulars given below with effect from a date to be notified by the Government
 We have already held that Guru Pershad represented the State Transport Undertaking
The scheme was proposed by the said Undertaking in exercise of the powers under section 68 C of the Act for the purpose of providing an efficient adequate economical and properly coordinated road transport service in public interest
Except for the fact that the word opinion  is omitted the first part of the section 68 C is incorporated in the preamble of the scheme  and in addition it also discloses that the scheme is proposed in exercise of the powers conferred on the State Transport Undertaking under section 68 C of the Act
The State Transport Authority can frame a scheme only if it is of opinion that it is necessary in public interest that the road transport service should be run or operated by the Road Transport Un dertaking
When it proposes for the reasons mentioned in the section a scheme providing for such a transport undertaking it is a manifest expression of its opinion in that regard
We gather from a reading of the scheme that the State Transport Undertaking formed the necessary opinion before preparing the scheme and publishing it
The argument of the learned counsel carries technicality to a breaking point and for the aforesaid reasons we reject it
The next attack of the learned counsel centres round the provisions of section 68 D 2 of the Act
It would be convenient before adverting to his argument to read 339 section 68 D and the relevant rules made under the Act
They read  Sec
68 D  1 Any person affected by the scheme published under section 68 C may within thirty days from the date of the publication of the scheme in the Official Gazette file objections thereto before the State Government
2 The State Government may after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter if they so desire approve or modify the scheme
3 The scheme as approved or modified under sub section 2 shall then be published in the Official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route
Provided that no such scheme which relates to any inter State route shall be deemed to be an approved scheme unless it has been published in the Official Gazette with previous approval of the Central Government
Rule 8  Filing of objections procedure Any person concern or authority aggrieved by the scheme published under section 68 C may within the specified period file before the Secretary to Government in charge of Transport Department objections and representations in writing setting forth concisely the reasons in support thereof Rule 9  Conditions for submission of objections No representation or objection in respect of any scheme published in the Official Gazette shall be considered by the Government unless it is made in accordance with rule 8
Rule 10  Consideration of scheme Procedure regarding  After the receipt of the objections referred to above the Government may after fixing the date time and place for holding an enquiry and after giving if they so desire at least seven clear days  notice of 340 such time and place to the persons who filed objections under rule 8 proceed to consider the objections and pass such orders as they may deem fit after giving an Opportunity to the person ofbeing heard in person or through authorised representatives
 Under the section the procedure prescribed for the approval of a scheme may be summarized thus  The State Transport Undertaking prepares a scheme providing for road transport service in relation to an area to be run or operated by the State Transport Undertaking whether to the exclusion complete or partial of other persons and publishes it in the Official Gazette
Any person affected by the scheme may within thirty days from the date of its publication file before the Secretary to Government in charge of Transport Department objections and representations in writing with reasons in support thereof
After receiving the objections and representations the Government fixes a date for the hearing and after giving an opportunity to the persons of being heard in person or by authorized representatives considers the objections and then modifies or approves of the scheme
The following procedure was in fact followed by the Government in this case After the scheme was prepared and published in the Official Gazette the petitioners and others filed objections before the Secretary to Government Transport Department within the time prescribed
138 objections were received and individual notices were issued by the Government by registered post to all
the objectors fixing the date of the hearing for December 26 1957
The Secretary to Government Home Department in charge of Transport heard the representations made by the objectors some in person and others through their advocates and also the representation is made by the General Manager of the Road Transport Undertaking
The Secretary after hearing the objections prepared notes and placed the entire matter with his notes before the Chief Minister who considered the matter and passed orders rejecting the objections and approving the scheme and the approved scheme was thereafter issued in the name of the Governor
341 On the aforesaid facts the first contention raised is that the State Government in approving the scheme was discharging a quasi judicial act and therefore the Government should have given a personal hearing to the objectors instead of entrusting that duty to its Secretary
Secondly it is stated that a judicial hearing implies that the same person hears and gives the decision
But in this case the hearing is given by the Secretary and the decision by the Chief Minister
Thirdly it is contended on the same hypothesis that even if the hearing given by the Secretary be deemed to be a hearing given by the State Government the hearing is vitiated by the fact that the Secretary who gave the hearing is the Secretary in charge of the Transport Department
The Transport Department it is stated in effect was made the judge of its own cause and this offends one of the fundamental principles of judicial procedure
Lastly it was pointed out that though the enquiry was posted for hearing on December 26 1957 even before the enquiry was commenced the Chief Secretary to the Government gave an interview to the Deccan Chronicle  and the I Golconda Patrika  to the effect that the Government bad already taken a decision to nationalize the road transport in Krishna District and some routes had been chosen including the Guntur Vijayawada route thereby indicating that the Government has prejudged the case before holding the enquiry
The learned Attorney General counters the said argument by stating that the State Government strictly followed the procedure prescribed under section 68 C of the Act that the said Government being an impersonal body gave the hearing through the machinery prescribed by law that the said Government was discharging only an administrative act and not a judicial act in the matter of approving the scheme that even if it did perform a judicial act the Home Secretary in charge of Transport Department had only collected the material and the final orders were made only by the Chief Minister and that the Secretary s press interview was nothing more than a mere indication of the factum of the proposed scheme
342 At the outset it would be convenient to consider the question whether the State Government acts quasijudicially in discharging its functions under section 68 C of the Act
The criteria to ascertain whether a particular act is a judicial act or an administrative one have been laid down with clarity by Lord Justice Atkin in Rex vs Electricity Commissioners Ex Parte London Electricity Joint Committee Co 1 elaborated by Lord Justice Scrutton in Rex vs London County Council Ex Parte Entertainments Protection Association Ltd 2 and authoritatively re stated by this Court in Province of Bombay vs Khusaldas section Advani 3 
They laid down the following conditions a the body of persons must have legal authority b the authority should be given to determine questions affecting the rights of subjects and c they should have a duty to act judicially
In the last of the cases cited supra Das J as he then was analysed the scope of the third condition thus at page 725  i that if a statute empowers an authority not being a Court in the ordinary sense to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act and iithat if a statutory authority has power to do any act which will prejudicially affect the subject then although there are not two parties apart from the authority and the contest is between the authority proposing to the act and the subject opposing it the final determination of the authority will yet be a quasi
judicial act provided the authority is required by the statute to act judicially
 In the case In re Banwarilal Roy 4 Das J as he then was said much to the same effect at page 800  A judicial or quasi judicial act on the other hand implies more than mere application of the mind 1 3  2 4 343 or the formation of the opinion
It has reference to the mode or manner in which that opinion is formed
It implies a proposal and an opposition  and a decision on the issue
It vaguely connotes hearing evidence and opposition  as Scrutton L J expressed it
The degree of formality of the procedure as to receiving or hearing evidence may be more or less according to the requirements of the particular statute but there is an indefinable yet an appreciable difference between the method of doing an administrative or executive act and a judicial or quasi judicial act
 This statement is practically in accord with the first proposition extracted above
This Court again in Nagendra Nath Bora vs Commissioner of Hills Division 1 in the context of the provisions of Eastern Bengal and Assam Excise Act 1910 I of 1910 considered the scope of the concept of judicial act 
Sinha J who delivered the
judgment of the Court made the following observations at page 408  Whether or not an administrative body or authority functions as a purely administrative one or in a quasi judicial capacity must be determined in each case on an examination of the relevant statute and the rules framed thereunder In Express Newspapers Ltd vs The Union of India 2 this Court again reviewed the law on the subject to ascertain whether the Wage Board functioning under the Working Journalists Conditions of Service and Miscellaneous Provisions Act 1955 45 of 1955 was only discharging administrative functions or quasijudicial functions
Bhagwati J made the following observation at page 613  If the functions performed by the Wage Board would thus consist of the determination of the issues as between a proposition and an opposition on data and materials gathered by the Board in answers to the questionnaire issued to all parties interested and the evidence led before it there is no doubt that there would be imported in the proceedings of the Wage Board a duty to act judicially and the functions 1  2 344 performed by the Wage Board would be quasi judicial in character
 The aforesaid three decisions lay down that whether an administrative tribunal has a duty to act judicially should be gathered from the provisions of the particular statute and the rules made thereunder and they clearly express the view that if an authority is called upon to decide respective rights of contesting parties or to put it in other words if there is a lis ordinarily there will be a duty on the part of the said authority to act judicially
Applying the aforesaid test let us scrutinize the provisions of sections 68 C and 68 D and the relevant rules made under the Act to ascertain whether under the said provisions the State Government performs a judicial act or an administrative one
Section 68 C may be divided into three parts 1 The State Transport Undertaking should come to an opinion that it is necessary in public interest that the road transport service in general or any particular
class of such service in relation to any area or route or portion thereof should be run or operated by the State Transport Undertaking whether to the exclusion complete or partial of other persons or otherwise  ii it forms that opinion for the purpose of providing an efficient adequate economical and properly co ordinated road transport service and iii after it comes to that opinion it prepares a scheme giving particulars of the nature of the services proposed to be rendered area or route proposed to be covered and such other particulars respecting thereto as may be prescribed and causes it to be published in the Official Gazette
The section therefore makes a clear distinction between the purpose for which a scheme is framed and the particulars of the scheme
To state it differently though the purpose is to provide an efficient adequate economical and coordinated road transport service in public interest the scheme proposed may affect individual rights such as the exclusion complete or partial of other persons or otherwise from the business in any particular route or routes
Under section 68 C therefore the State Transport Undertaking may propose a scheme affecting the proprietary rights 345 of individual permit holders doing transport business in a particular route or routes
The said proposal threatens the proprietary right of that individual or individuals
Under section 68 D read with Rules 8 and 10 made under the Act any person affected by the aforesaid proposed scheme may file objections within the prescribed time before the Secretary of the Transport  Department
Under the said provisions
the State Government is enjoined to approve or modify the scheme after holding an enquiry and after giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be heard in the matter in person or through authorised representatives
Therefore the proceeding prescribed is closely approximated to that obtaining in courts of justice
There are two parties to the dispute
The State Transport Undertaking which is a statutory authority under the Act threatens to infringe the rights of a citizen
The citizen may object to the scheme on public grounds or on personal grounds
He may oppose the scheme on the ground that it is not in the interest of the public or on the ground that the route which he is exploiting should be excluded from the scheme for various reasons
 There is therefore a proposal and an opposition and the third party the State Government is to decide that lis and prima facie it must do so judicially
The position is put beyond any doubt by the provision in the Act and the Rules which expressly require that the State Government must decide the dispute according to the procedure prescribed by the Act and the Rules framed thereunder viz after considering the objections and after hearing
both the parties
It therefore appears to us that this is an obvious case where the Act imposes a duty on the State Government to decide the act judicially in approving or modifying the scheme proposed by the Transport Undertaking
The learned Attorney General argues that sections 68 C and 68 D do not contemplate the enquiry in regard to the rights of any parties that the scheme proposed is 44 346 only for the purpose of an efficient adequate economical and properly coordinated bus transport service and should relate only to that purpose and that therefore the enquiry contemplated under section 68 D though assimilated to a judicial procedure does not make the approval of the scheme any the less an administrative act
To put it shortly his contention is that the Government is discharging only an administrative duty in approving the scheme in public interest and no rights of the parties are involved in the process
There is some plausibility and attraction in the argument but we cannot accept either the premises or the conclusions
The scheme proposed may exclude persons who have proprietary rights in a route or routes
As we have pointed out the purpose must be distinguished from the particulars in the scheme
The scheme propounded may exclude persons from a route or routes and the affected party is given a remedy to apply to the Government and the Government is enjoined to decide the dispute between the contesting parties
The statute clearly therefore imposes a duty upon the Government to act judicially
Even if the grounds of attack against the scheme are confined only to the purpose mentioned in section 68 C we cannot agree with this contention the position will not be different for even in that case there is a dispute between the State Transport Undertaking and the person excluded in respect of the scheme though the objections are limited to the purpose of the scheme
In either view the said two provisions sections 68 C and 68 D comply with the three criteria of a judicial act laid down by this Court
Support is sought to be drawn for this contention from the decision of the House of Lords in Franklin vs Minister of Town and Country Planning 1
As strong reliance is placed on this decision it is necessary to consider the same in some detail
The facts of that case are On August 3 1946 the respondent Lewis Silkin as Minister of Town and Country Planning prepared the draft Stevenage New Town Designation Order 1946 under para
1 of Schedule 1 to the New 1  347 Towns Act 1946 and on or about August 6 1946 he caused the same to be published and notices to be given as prescribed by paragraph 2 of Schedule I to the Act
Thereafter objections were received from a number of persons including the appellants
Accordingly the respondent instructed Mr Arnold Morris an Inspector of the Ministry of Town and Country Planning to hold a public local inquiry as prescribed by paragraph 3 of the said Schedule
Mr Morris held the inquiry at the Town Hall Stevenage on October 7 and 8 1946 and on October 25 made a report to the respondent in which he set out a summary of the sub
missions made and the evidence given by and on behalf of the objectors and attached thereto a complete transcript of the proceedings which began with an opening statement by Mr Morris giving a brief recapitulation of the reasons that had led to the designation of Stevenage as the site of a New Town
On November 11 1946 the respondent made the order in terms of paragraph 4 of Schedule I to the Act
The appellants applied to the High Court to have the order quashed
It was contended inter alia that the said order was not within the powers of the New Towns Act 1946 or alternatively that the requirements of the said Act have not been complied with that the Minister who made the order had stated before the Bill was made into law that he would make the said order and therefore he was biassed in any consideration of the said objections
The House of Lords held that the respondent s functions under the Act were only administrative and that he had complied with the provisions of the statute
In that view the order of the Court of Appeal dismissing the applications filed by the appellants was confirmed
Lord Thankerton in his speech at page 102 observed thus In my opinion no judicial or quasi judicial pinion no duty was imposed on the respondent and any reference to judicial duty or bias is irrelevant in the present case
The respondent s duties under section 1 of the Act and sch
1 thereto are in my opinion purely administrative but the Act prescribes certain methods of or steps in discharge of that duty    it 348 seems clear also that the purpose of inviting objections and where they are not Withdrawn I of having a public inquiry to be held by someone other than the respondent to whom that person reports was for the further information of the respondent in order to the final consideration of the Soundness of the scheme  of the designation   
I am of opinion that no judicial duty is laid on the respondent in discharge of these statutory duties and that the only question is whether he has complied With the Statutory directions to appoint a person to hold the public inquiry and to consider that person s report
At first sight the facts of this case may appear to have some analogy to those in the present case but on a deeper scrutiny of the facts and the provisions of the New Towns Act 1946 and Chapter IV A of the Act they disclose essential differences in fundamentals
Under the New Towns Act 1946 the following steps for developing a new town have been laid down 1 It is left to the Minister s Subjective satisfaction after consulting local authorities who appear to him to be concerned to make an order designating
a particular area as the site of the proposed new town  2 when he proposes to make an order he prepares a draft of that order giving the necessary parti culars and publishes it in the London Gazette calling for objections to the proposed order within a prescribed time 3 if any objection is made to the proposed order he shall cause a public local enquiry to be held and shall consider the report of the person by whom the enquiry was held and 4 any person desiring to challenge the validity of that order may apply to the High Court and he can get that order set aside only if he satisfies the Court that the order is not within the powers of that Act or that his interests have been substantially prejudiced by any requirements of that Act not having been complied with
The steps to be taken for nationalising the Road Transport under the Act are as follows 1 The State Transport Undertaking which is a statutory authority under the Act proposes a scheme 2 the scheme may provide that the road transport services 349 should be run or operated by the State Transport Undertaking to the exclusion of a person or persons 3 any Person affected may file objections before the Government4 the Government following the rules of judicial procedure decides the dispute between the Undertaking and the person or persons affected 5the dispute is not necessarily confined only to the question whether the statutory requirements have been complied with but may also relate to the question whether a particular person or persons should not
be excluded and 6 a personal hearing should be given to both the parties by the Government
A comparison of the procedural steps under both the Acts brings out in bold relief the nature of the enquiries contemplated under the two statutes
There there is no lis no personal hearing and even the public enquiry contemplated by a third party is presumably confined to the question of statutory requirements or at any rate was for eliciting further information for the Minister
Here there is a clear dispute between the two parties
The dispute comprehends not only objections raised on public grounds but also in vindication of private rights and it is required to be decided by the State Government after giving a personal  hearing and following the rules of judicial procedure
Though there may be some justification for holding on the facts of the case before the House of Lords that that Act did not contemplate a judicial act on that question we do not propose to express our opinion there is absolutely none for holding in the present case that the Government is not performing a judicial act
Robson in Justice and Administrative Law  commenting upon the aforesaid decision makes the following observation at page 533  It should have been obvious from a cursory glance at the New Towns Act that the rules of natural justice could not apply to the Minister s action in making an order for the simple reason that the initiative lies wholly with him
His role is not to consider whether an order made by a local authority should be confirmed nor does he have to determine a controversy between a public authority and private interests
350 The responsibility of seeing that the intention of Parliament is carried out is placed on him
 The aforesaid observations explain the principle underlying that decision and that principle cannot have any application to the facts of this case
In I Principles of Administrative Law by Griffith and Street the following comment is found on the aforesaid decision  After considering the provisions of section 1 of the New Towns Act 1946 the authors say  Like the town planning legislation this differs from the Housing Acts in that the Minister is a party throughout
Further the Minister is not statutorily required to consider the objections
It is obvious as the statute itself states that the creation of new towns is of national interest
 At page 176 the authors proceed to state Lord Thankerton did not analyse the meanings of I judicial  and I administrative nor did he specify the particular factors which motivated his classification
It is permissible to conclude that he looked at the Act as a whole applying a theory of interpretation similar to the rule in Heydon s Case   7b
 At page 178 they conclude thus  It is submitted however that the thoroughness with which the Courts analysed the statutes in the Errington Robinson Johnson and Franklin Cases and the emphasis which they have placed on the fact that their decisions have been based solely on the statute under consideration makes such an approach inevitable
 It is therefore clear that Franklin s Case is based upon the interpretation of the provisions of that Act and particularly on the ground that the object of the enquiry is to further inform the mind of the Minister and not to consider any issue between the Minister and the objectors
The decision in that case is not of any help to decide the present case which turns upon the construction of the provisions of the Act
For the aforesaid reasons we hold that the State Government s order under section 68 D is a judicial act
351 The next question is whether the State Government disposed of the objections of the petitioners judicially in the manner prescribed by the Act
It is said that under the Act and rules framed thereunder the State Government should hear the dispute but in this case the Secretary in charge of the Transport Department who is not the State Government gave the hearing
The State Government is an impersonal body and it can only function through the machinery and in the manner prescribed by law
Clause 60 of section 2 of the  defines I State Government  as respects anything done or to be done after the commencement of the Constitution VII Amendment Act 1956 to mean in a State the Governor and in a Union Territory the Central Government
Under article 1541 of the Constitution I the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution 
Article 163 enacts that  there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion 
Article 1661 enjoins that I all executive action of the Government of a State shall be expressed to be taken in the name of the Governor 
Sub clause 2 of that Article says that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor 
And under sub cl
3 the Governor shall make rules for tile more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion 
In exercise of the powers conferred by cls
2 and 3 of article 166 of the Constitution the Government of Madras made rules styled as The Madras Government Business Rules and Secretariat Instructions 
Rule 9 thereof prescribes 352 that without prejudice to the provisions of r 7 the Minister in charge of a department shall be primarily responsible forthe disposal of the business appertaining to that department
Rule 21 enacts that except as otherwise provided by any other Rule cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the department
Copies of such standing orders shall be sent to the Governor and the Chief Minister
Rule 11 says that I all orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor 
Under r 12 every order or instrument of the Government of the State shall be signed either by a Secretary an Additional Secretary a Joint Secretary a draftsman a Deputy Secretary an Under Secretary or an Assistant Secretary to the Government of the State or such other officers as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument 
After the formation of the Andhra State on October 3 1953 the rules made by the Governor of Madras under the provisions of the States Reorganization Act Continue to be the rules of the Andhra State till they are amended in accordance with  such law
The Governor of Andhra State in exercise of the powers conferred by cls
2 and 3 of article 166 of the Constitution directed that until other provisions are made in this regard the business of the Government of Andhra be transacted in accordance with the Madras Government Business Rules
and Secretariat Instructions in force on the first day of October 1953 
On October 26 1956 after the formation of the Andhra Pradesh State as the Andhra Pradesh was not a new State but a continuation of the Andhra State though there is change in its name the business rules of the Andhra state continue to govern the Secretariat of the AndhraPradesh Government
The effect of the aforesaid provisions may be stated thus A State Government 353 means the Governor the executive power of the State vests in the Governor it is exercised by him directly or by officers subordinate to him in accordance with the provisions of the Constitution the Ministers headed by the Chief Minister advise him in the exercise of his functions the Governor made rules enabling the Minister in charge of particular department to dispose of cases before him and also authorizing him by means of standing orders to give such directions as he thinks fit for the disposal of the cases in the department
Pursuant to the rule the record discloses the Chief Minister who was in charge of Transport had made an order directing the Secretary to Government Home Department to hear the objections filed against the scheme proposed by the State Transport Autho rity
The aforesaid machinery evolved by the rules for the disposal of cases by the State Government has been followed in this case
The petitioners and others filed objections to the proposed scheme before the Secretary to the Government Transport Department
He gave a personal hearing to the parties some of them appeared in person and others by representatives the entire material recorded by him was placed before the Chief Minister in charge of Transport who made his order approving the scheme and the order was issued in the name of the Governor authenticated by the Secretary in charge of the Transport Department
It may therefore be said that the State Government gave the hearing to the petitioners in the manner prescribed by the rules made by the Governor
At this state the argument hinted at but not seriously pressed may be noticed
The Rules the Governor is authorised to make the argument proceeds are only to regulate the acts of the Governor or his subordinates in discharge of the executive power of the State Government and therefore will not govern the quasi judicial functions entrusted to it
There is a fallacy in this argument
The concept of a quasijudicial act implies that the act is not wholly judicial 45 354 it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power
The procedural rules made by the Governor for the convenient transaction of business of the State Government apply also to quasi judicial acts provided those Rules conform to the principles of judicial procedure
The mode of performing quasi judicial acts by administrative tribunals has been the subject of judicial decisions in England as well as in India
The House of Lords in Local Government Board vs Arlidge 1 in the context of the Housing Town Planning Etc Act 1909 made the following observations at page 132  My Lords when the duty of deciding an appeal is imposed those whose duty it is to decide it must act judicially
They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made
The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice
But it does not follow that the procedure of every such tribunal must be the same
 In New Prakash Transport Co Ltd vs New Swarna Transport Co Ltd 2 this Court reviewed the case law on the subject and came to the conclusion that the rules of natural justice vary with varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provisions of the relevant Act
This Court re affirmed the principle in Nagendra Nath Bora vs Commissioner of Hills Division supra 3
With this background we shall proceed to consider the validity of the three alleged deviations of the State Government from the fundamental judicial procedure
In the present case the officer who received 1 2  3  355 the objections of the parties and heard them personally or through their representatives was the Secretary of the Transport Department
Under the Madras Government Business Rules and Secretariat Instructions  made by the Governor under article 166 of the Constitution the Secretary of a department is its head
One of the parties to the dispute before the State Government was the Transport Department functioning as a statutory authority under the Act
The head of that department received the objections heard the parties recorded the entire proceedings and presumably discussed the matter with the Chief Minister before the latter approved the scheme
Though the formal orders were made by the Chief Minister in effect and substance the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself
It is one of the fundamental principles of judicial procedure that the person or persons who are entrusted with the duty of hearing a case judicially should be those who have no personal bias in the matter
In Ranger vs Great Western Ry
Co1 Lord Cranworth LC says A judge ought to be and is supposed to be indifferent between the parties
He has or is supposed to have no bias inducing him to lean to the one side rather than to the other In ordinary cases it is just ground of exception to a judge that he is not indifferent and the fact that he is himself a party or interested as a party affords the strongest proof that he cannot be indifferent
 In Rex vs Sussex Justices Ex Parte McCarthy 2 Lord Hewart C J observed  It is said and no doubt truly that when that gentleman retired in the usual way with the justices taking with him the notes of the evidence in case the justices might desire to consult him the justices came to a conclusion without consulting him and that he scrupulously abstained from referring to the case in any way
But while that is so a long line of cases shows that it is not merely of some importance 1   89   827
2  258
356 but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done
The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered the question is whether he was so related to the case in its civil aspects as to be unfit to act as clerk to the justices in the criminal matter
The answer to that question depends not upon what actually was done but upon what might appear to be done
 This was followed in Rex vs Essex Justices Ex Parte Perkins1In Franklin s Case 2 though on a construction of the provisions of that Act under consideration in that case it was held that the Minister was not acting judicially in discharging his duties his Lordship accepted the aforesaid principle and expressd his view on the doctrine of bias  thus at page 103  My Lords I could wish that the use of the word bias  should be confined to its proper sphere
Its proper significance in my opinion is to denote a departure from the standard of even handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi judicial office such as an arbitrator
The reason for this clearly is that having to adjudicate as between two or more parties he must come to his adjudication with an independent mind without any inclination or bias towards one side or other in the dispute
 The aforesaid decisions accept the fundamental principle of natural justice that in the case of quasi judicial proceedings the authority empowered to decide the dispute between opposing parties must be one without bias towards one side or other in the dispute
It is also a matter of fundamental importance that a person interested in one party or the other should not even formally take part in the proceedings though in fact he does not influence the mind of the person who finally decides the case
This is on the principle that 1 2  357 justice should riot only be done but should manifestly and undoubtedly be seen to be done
The hearing given by the Secretary Transport Department certainly offends the said principle of natural justice and the proceeding and the hearing given in violation of that principle are bad
The second objection is that while the Act and the  Rules framed thereunder impose a duty on the State Government to give a personal hearing the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide
This divided responsibility is destructive of the concept of judicial hearing
Such a procedure defeats the object of personal hearing
Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments and the party appearing to persuade the authority by reasoned argument to accept his point of view
If one person hears and another decides then personal hearing becomes an empty formality
We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure
The learned counsel further contends that the mind of the State Government was foreclosed before the hearing was given and therefore no real enquiry was held by it as contemplated by the Act
This argument is based upon the reports published on 27 12 1957 in the Deccan Chronicle  and Golconda Patrika 
Therein it was stated under date December 26 as follows   The Chief Secretary Mr M P Pai told pressmen today that the Government has already taken a decision to nationalize the road transport in Krishna District and some routes had been chosen
The Guntur Vijayawada route also comes under the nationalisation scheme
About 65 buses would be plying oil these routes
 The Chief Secretary was giving this information on December 6 1957 even before the enquiry was commenced
On the basis of this publication it is contended that the Government had already taken a decision to nationalize the road transport before the scheme 358 was approved by the Government and that the entire procedure was put through to implement the decision already taken to meet the requirements of the technicalities of law
In the counter affidavit filed by the first respondent it is stated that the scheme was published in the Andhra Pradesh Gazette dated 24 12 1957 and that the alleged statement only referred to the said proposal under section 68 C of the 
Though the wording of the information published speaks of the decision of the Government the Chief Secretary obviously must have been referring to the contents of the notification published two days earlier on 24 12 1957
We cannot from this publication in the newspapers come to the conclusion that the Government having finally decided to reject all possible objections went through a farce of an enquiry
We therefore hold for the first two reasons that the quasi judicial enquiry held by the State Government was vitiated by the violation of the aforesaid fundamental principles of natural justice
The last argument of the learned counsel for the petitioners is that the Road Transport Corporation ie the first respondent cannot implement the scheme proposed by the defunct State Transport Undertaking
Some of the relevant facts are as follows The State Transport Undertaking published the scheme in the Andhra Pradesh Gazette dated November 14 1957
It also appeared through its representative the General Manager who made his representation to the Secretary of the Transport Department on 26 12 1957
The State Government approved of the scheme on 7 1 1958 and the approved scheme was published in the Andhra Pradesh Gazette dated 9 1 1958 and it was directed to come into force with effect from 10 1 1958
The Government of Andhra Pradesh established a Road Transport Corporation under the Act LXIV of 1950 for the State of Andhra Pradesh with effect from 11 1 1958
The State Government transferred the business of the Road Transport Department to the said Corporation for management
Thereafter the said Corporation was taking subsequent steps to implement the scheme
359 The argument is that the Road Transport Corporation has no power under the to take over the business of the State Transport Undertaking and to implement the scheme initiated by that Undertaking
The said Corporation admittedly comes under the definition of State Transport Authority  under the Act
But the question is whether  the said Corporation is also a successor to the State Transport Authority that initiated the scheme
It would certainly be the successor if the Corporation was legally entrusted with the duty of carrying on the business the Road Transport Department was doing before
On January 9 1958 in exercise of the powers conferred by section 3 of the  the Governor of Andhra Pradesh established with effect from January 11 1958 a Road Transport Corporation called the Andhra Pradesh Road Transport Corporation for the State of Andhra Pradesh
In exercise of the power conferred by section 34 of the  the Governor of Andhra Pradesh made an order dated 11th January 1958 for the following administrative arrangements to come into force I The Andhra Pradesh Road Transport Corporation hereinafter referred to as the Corporation shall take over the management of the existing Road Transport Department of the Government of Andhra Pradesh
2All land and all stores articles and other goods of the Road Transport Department shall pass to the Corporation
3 a Subject to the provisions of sub paragraphs band c all the assets and liabilities of the Road Transport Department shall pass to the Corporation
The other clauses need not be read as they are only consequential to the aforesaid clauses
It is therefore clear from the said order that the Government entrusted the management of the Road Transport Department to the Road Transport Corporation and directed the transfer of all assets and liabilities to the said Corporation
The effect of the said order is that the State 360 Corporation carries on the Road Transport business in the place of the State Transport Department which was functioning as the State Transport Undertaking under the Act before the said order
If there was no legal impediment in the Government transferring the business carried on by one of its departments and its assets to the Corporation the Corporation would be a successor to the pre existing State Transport Undertaking
The petitioners contest the position that the Government has any such power under section 34 of the Road Transport Corporations
Act 1950
Section 34 reads 1 The State Government may after consultation with a Corporation established by such Government give to the Corporation general instructions to be followed by the Corporation and such instructions may include directions relating to the recruitment conditions of service and training of its employees wages to be paid to the employees reserves to be maintained by it and disposal of its profits and stocks
2 In the exercise of its powers and performance of its duties under this Act the Corporation shall not depart from any general instructions issued under subsection 1 except with the previous permission of the State Government
 The Road Transport Corporation Was constituted for extending and improving the facilities of the road transport in the Andhra Pradesh area
The Government transferred the Undertaking and its assets to that Corporation and gave it directions under section 34 of the  to take over the management of the said undertaking
The fact that under the Road Transport Corpora tions Act the Corporation can acquire an undertaking after paying compensation is not of much relevancy for in this case the Corporation does not purport to acquire any transport undertaking of the petitioners
It has not been brought to our notice that the said direction is inconsistent with any of the provisions of the 
We therefore hold that the first respondent is the successor to the State Transport Undertaking which 361 proposed the scheme and as admittedly it satisfied the requirements of the definition of I Road Transport Authority  under the Act it is within its rights in implementing the scheme approved by the Government
In the result for the reason that the State Government did not make the enquiry consistent with the principles of natural justice in approving the scheme the order approving the scheme is hereby quashed and a direction issued to the first respondent to forbear from taking over any of the routes in which the petitioners are engaged in transport business
This judgment will not preclude the State Government from making the necessary enquiry in regard to the objections filed by the petitioners in accordance with law
The petitioners will have liberty to file additional objections if any
As the petitioners have failed on substantive points in the case the parties are directed to bear their own costs
WANCHOO J
This petition under Article 32 of the Constitution challenges the scheme of road transport introduced in the Krishna district of Andhra Pradesh
The petitioners raise two main contentions namely 1 that the provisions of Chapter IV A of the  violate their fundamental rights guaranteed under the Constitution and 2 that the scheme introduced is ultra vires Chapter IV A I have had the advantage of reading the judgment prepared by my brother Subba Rao J
I agree with what he has said on the first contention and therefore do not propose to repeat the facts and the reasons given by him
I have however been unable with utmost respect to persuade myself to agree fully with what has been said on the second contention
I therefore proceed to deal with that only
The second contention of the petitioners is that the scheme of road transport which is sought to be put into effect is ultra vires Chapter IV A of the  IV of 1939 hereinafter called the Act inasmuch as the provisions of that Chapter have not 46 362 been strictly followed
Before I deal with the contentions of the petitioners in this matter I may indicate briefly the steps required to be taken before a scheme of road transport is finalised under Chapter IV A of the Act
The first step is the preparation of the Scheme under section 68C which lays down that where any State Transport Undertaking is of opinion that for the purpose of providing an efficient adequate economical and properly coordinated road transport service it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking whether to the exclusion complete or partial of other persons or otherwise the State Transport Undertaking may prepare a scheme for the purpose
After the scheme is prepared it has to be published in the Official Gazette and also in such other manner as the State Government may direct
The next step is that any person affected by the scheme published under section 68C may within thirty days from the date of publication file objections thereto before the State Government section 68Dl
The third step is that the State Government has to consider the objections and after giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be heard in the matter to approve or modify the scheme section 68D 2
Finally the scheme as approved or modified is published in the Official Gazette as the approved scheme section 68D3
Then comes the provisions for putting
this approved scheme into effect
Section 68F provides that the Regional Transport Authority shall thereupon issue permits to the State Transport Undertaking on its application in pursuance of the approved scheme
The Regional Transport Authority is also given power to cancel or modify any existing permit or refuse to renew any existing permit for this purpose
Section 68G provides for compensation where any existing permit is cancelled or its terms are modified
The main attack of the petitioners is that sections 363 68C and 68D were not complied with
The particulars of the attack may be summarised as below 1 There was no State Transport Undertaking in existence which could have published the scheme 68C 2 Even if a State Transport Undertaking was there it did not form an opinion as required by section 68C and in particular the General Manager who acted for the State Transport Undertaking had no authority to do so 3S 68D2 contemplates a hearing by the State Government of the objections filed
There was no such hearing as the Home Secretary in charge of Transport Department who heard the objectors must be deemed to be one of the parties who have to be heard by the State Government and in any case the hearing by the Secretary was no hearing by the State Government
4There was no real bearing at all and no genuine consideration of the objections by the State Government as the issue bad already been prejudged vide speech of the Chief Secretary on the 26th of December 1957 and 5The scheme could not be enforced by the Road Transport Corporation which replaced the Road Transport Department soon after the scheme had been approved by the State Government
It is necessary in order to appreciate and decide the point raised on behalf of the petitioners to mention briefly the facts relating to the preparation of the scheme and subsequent steps taken for its approval and enforcement
The scheme was published on November 14 1957 under the authority of Shri Guru Pershad General Manager of the State Transport Undertaking Andhra Pradesh Road Transport
Chap ter IV A of the Act had come into force from the 15th of February 1957
Before that Hyderabad State as it then was had passed Act XLV of 1956 amending the locally and incorporating in it provisions similar to the present Chapter IV A Under the Hyderabad Act the State Transport Undertaking was defined as the Road Transport 364 Department of the State providing road transport services
When the Hyderabad State came to end and what was known as the Telengana area of that State was merged in the State of Andhra Pradesh the Road Transport Department of Andhra Pradesh took over the road transport services in the Telengana area which were being run by the former Hyderabad State
The present scheme was published as already stated on the 14th of November 1957 by Shri Guru Pershad on behalf of the Road Transport Department of Andhra Pradesh
The objections to the scheme were received by the Secretary to Government in charge of the Road Transport Department and the objectors were heard by the Home Secretary in charge of the Transport Department on the 26th and 27th of December 1957
The scheme was finally approved by the Governor of Andhra Pradesh on the 7th of January 1958 and was to come into force from the 10th of January 1958
The approved scheme was published in the Gazette on January 9 1958
In the meantime the Government of Andhra Pradesh decided to establish a Road Transport Corporation under the  No LXIV of 1950 for the State of Andhra Pradesh
This decision was published on the 20th of December 1957 and the Road Transport Corporation was to come in existence from the 11th of January 1958
It was to take over the business of the Road Transport Department of the State
The members of the Road Transport Corporation were appointed on the 9th of January 1958 and the Corporation was established with effect from the 11th of January 1958
It was this Corporation which took over the duty of implementing the approved scheme which was published on the 9th of January 1958 and was to come into effect from the 10th of January 1958
The steps necessary under sections 68F 68G and 68H of the Act to put the scheme into force were taken by this Corporation
The argument of the petitioners under this head is put thus There was a State Transport Undertaking under Hyderabad Act which was operating in the present Telengana area of Andhra Pradesh
This 365 was the Road Transport Department of the Hyderabad State which became the statutory body under the Hyderabad Act
When however the Hyderabad State came to end and the Telengana area was merged in Andhra Pradesh on the 1st of November 1956 the State Transport Undertaking of the Hyderabad State continued to function as such for the Telengana area of Andhra Pradesh
There was no extension of the Hyderabad Act to the rest of Andhra Pradesh and the present scheme relates to Krishna District which is not in the Telengana area consequently it was not open to the State Transport Undertaking which was existing under the Hyderabad Act to frame this scheme for an area which was not in Telengana
It was also urged that no State Transport Undertaking was formed as such after the coming into force of Chapter IV A of the Act in February 1957
I am of the opinion that there is no force in this argument
It is true that tinder the Hyderabad Act the State Transport Undertaking was defined as  the Road Transport Department of the State providing road transport service 
When Hyderabad State came to end on the 1st of November 1956 the Road Transport Department of Andhra Pradesh became the State Transport Undertaking within the meaning of the Hyderabad Act though as that Act was in force only in the Telengana area road transport services could only be run in that area
When however Chapter IV A of the Act came into force from the 15th of February 1957 and applied to the whole of the State of Andhra Pradesh the Hyderabad Act must be deemed to have been repealed by necessary implication as Chapter IV A of the Act covered exactly the same field as was covered by the Hyderabad Act
On the 15th of February 1957 there was only Road Transport Department of Andhra Pradesh which was in existence and which was providing transport services in certain areas of the State
Now under section 68A a State transport undertaking is defined as any undertaking providing road transport service where such undertaking is carried on by the Central Government or the State Government  The Road Transport Department 366 of Andhra Pradesh was obviously an undertaking providing road transport service though only in a part of the State and was carried on by the State Government of Andhra Pradesh
Therefore the Road Transport Department of Andhra Pradesh became the State Transport Undertaking under the definition in Is
The fact that this undertaking which came in existence by virtue of the definition on the 15th of February 1957 was at that time providing road transport services only in a part of the State would not make it any the less a State Transport Undertaking within the meaning of that term and there is nothing in Chapter
IV A which precludes a State Transport Undertaking which is for the time being providing transport services in a part of the State from extending its activities and framing a scheme for other parts of the State
I am therefore of opinion that a State Transport Undertaking was in existence in November 1957 when the scheme was prepared and published and it was the Road Transport Department of Andhra Pradesh
The contentions on this head are two fold
In the first place it is urged that the General Manager who acted for the State Transport Undertaking had no authority to do so on its behalf This is a question of fact and should have been specifically raised in the petition
All that however is said about the authority of Shri Guru Pershad is to be found in paragraph 11 e of the petition in these words Mr Guru Pershad was the General Manager of the Road Transport Department of the erstwhile Hyderabad State
He was never appointed as Manager of the State Transport Undertaking of Andhra Pradesh and therefore he has no legal authority whatever to publish a scheme 
Now it is obvious that this objection was only confined to one point namely that Shri Guru Pershad had no authority to act for the State Transport Undertaking of Andhra Pradesh as he was never appointed as manager of that undertaking
It was not the case of the petitioners that even if he had been appointed as Manager of the Andhra Pradesh State Transport 367 Undertaking he would have no authority to frame and publish a scheme on behalf of that undertaking
It appears that Shri Guru Pershad who was the Manager of the road transport services when they were run by the former Hyderabad State continued to be such after the Telengana area of the Hyderabad State was merged in Andhra Pradesh
It is unthinkable that Shri Guru Pershad should have issued a notification in the Gazette on the 14th of November 1957 styling himself as  General Manager State Transport Undertaking Andhra Pradesh Road Transport  if he was not in fact the General Manager of the Andhra Pradesh Road Transport
It must therefore be held that Shri Guru Pershad was the General Manager of the Andhra Pradesh Road Transport and therefore of the State Transport Undertaking
His authority to publish the scheme if he was the Manager of Andhra Pradesh State Transport Undertaking has not been attacked
The scheme was published on the 14th of November 1957 by Shri Guru Pershad as such Manager
The petitioners cannot at this stage be allowed to challenge his authority to do so when they did not specifically raise this point in their petitions
When therefore he prepared and published the scheme it must be held that he did so on behalf of the State Transport Undertaking
The second part of this contention is that the notification of the 14th November 1957 does not say that the State Transport Undertaking was of opinion that it was necessary in the public interest that the road transport services should be run and operated by the State Transport Undertaking
The actual words used in the notification are these In exercise of the powers conferred by section 68C of the  it is hereby proposed for the purpose of providing an efficient adequate economical and properly coordinated road transport service in public interest to operate the following transport service as per the particulars given below with effect from a date to be notified by the Government
 No doubt the words  that the State Transport Undertaking is of opinion  are not expressly to be found in this notification  but at the same time it is impossible that a proposal like this should be prepared and published on behalf of the State Transport Undertaking without its forming an opinion that it was necessary in the public interest to do so
I am of opinion that the State Transport Undertaking must have formed the opinion necessary under section 68C before it published its proposal and invited objections to the same
There 175 no exact form of words provided for this purpose and it would be quite in order to draw the inference from the words used in the notification that it was published after the State Transport Undertaking had formed the opinion necessary under section 68C
In this connexion reference may be made to paragraph 2 of the counter affidavit filed on behalf of the Andhra Pradesh State Road Transport Corporation where it is said that the General Manager of the Andhra Pradesh Road Transport which was the State Transport Undertaking was of opinion that the transport services in the Krishna District of Andhra Pradesh should be operated in the public interest by the Andhra Pradesh Road Transport
It was however urged on behalf of the petitioners that this only disclosed the opinion of the General Manager and not of the State Transport Undertaking but as I have already said above the authority of the General Manager to speak on behalf of the State Transport Undertaking was never specifically challenged in the petition
There is therefore no force in this contention and it must be rejected
This contention relates to the hearing by the State Government under section 68 D2
In order to determine this question it is necessary to consider whether the State Government when it gives a hearing under section 68 D2 is acting as a quasi judicial tribunal or is merely performing administrative functions
If the State Government acts as a quasi judicial tribunal certain considerations apply to the nature of the hearing granted  if on the other hand the State Government acts administratively certain other 369 considerations apply in determining the propriety of the hearing in fact given in this case
The contention on behalf of the petitioners is that the hearing contemplated is as a quasi judicial tribunal
The learned Attorney General on the other hand contends that the State Government merely acts administratively when it gives a hearing under this provision
What constitutes a quasi judicial act has been considered by this Court in Province of Bombay vs Kusaldas section Advani 1
The principle has been summarised by Das J as he then was at p 725 in these words The principles as I apprehend them are ithat if a statute empowers an authority not being a Court in the ordinary sense to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act and iithat if a statutory authority has power to do any act which will prejudicially affect the subject then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it the final determination of the authority will yet be a quasi judicial act provided the authority is required by the statute to act judicially
In other words while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi judicial act if the authority is nevertheless required by the statute to act judicially
 Now it may be mentioned that the statute is not likely to provide in so many words that the authority 1  47 370 giving the hearing is required to act judicially that can only be inferred from the express provisions of the statute
In the present case it is urged by Mr Nambiar appearing for the petitioners that there were two parties before the State Government which was the deciding authority under section 68D2 namely the objectors and the representatives of the State Transport Undertaking
Therefore according to him prima facie there would be a duty to act judicially and there is no other factor which would take away the inference to be deduced from the presence of two parties before the State Government which has to decide the matter
Whether there is any other factor will however depend upon the circumstances of each case and the nature of the matter under hearing and the scope of the hearing
The learned Attorney General contends that if one looks at the nature of the matter to be heard and considers the scope of the hearing before the State Government in this case the only conclusion possible is that the State Government acts administratively when it gives a hearing under section 682
What then is the nature of the hearing before the State Government  Article 196ii is of help in this connection
It provides that nothing in sub clause g of article 191 which deals among other things with the right to carry on trade or business shall prevent the State from making any law relating to the carrying on by the State or by a corporation owned or controlled by the State of any trade or business whether to the exclusion complete or partial of citizens or otherwise
Chapter IV A has been inserted in the Act to carry out this purpose so that the State may operate transport services to the exclusion complete or partial of citizens
The scheme which has been published provides that there will be a complete exclusion of citizens when the scheme is enforced in the area to which it relates
Now the question is whether the exclusion of citizens as a whole is also an issue to be decided by the State Government when it hears objections
Mr Nambiar submits that the most important thing for the State Government to decide is whether there should be complete exclusion of citizens 371 on the enforcement of the scheme
The learned Attorney General on the other hand contends that all that the State Government has to do is to see whether the scheme published is in the interest of the public and also whether it will provide an efficient adequate economical and properly coordinated road transport service
The argument continues that if the State Government comes to that conclusion the complete exclusion which the scheme provides ipso facto follows and the State Government has not to decide the matter of exclusion as a separate issue
In other words the argument is that the State Government is not to decide between the competing claims of citizens providing transport privately and the State Transport Undertaking providing transport to the exclusion of citizens and there is therefore no real lis in this case
It is also pointed out that objection can not only be filed by the bus operators of that area who are to be excluded but also by anybody who is affected by the scheme including the members of the travelling public
Giving my best consideration to the arguments on either side on this aspect of the matter I have come to the conclusion that the scope of the hearing before the State Government is of a limited character though the decision may affect citizens providing transport the question whether private citizens should or should not be allowed to provide transport is really not a matter in issue before the State Government
What is in dispute before the State Government is only whether the scheme that is proposed by the State Transport Undertaking is an efficient adequate economical and properly coordinated scheme for road transport service and whether it is in the interest of the public
If the State Government comes to the conclusion that it is so a complete exclusion proposed automatically follows and the question of exclusion is not to be determined as a separate issue as between the objectors and the State Transport Undertaking
It is true that the State Government has the right to modify the scheme and in so doing it may drop a part of the scheme but here again it is not modifying the scheme because of any right of a 372 private citizen to carry on road transport service in a particular area but because it considers that the scheme so far as that particular area is concerned is not efficient adequate economical or properly coordinated or in the public interest
Unless it comes to that conclusion with respect to any part of the area
comprised in the scheme and modifies it the consequence of complete exclusion ipso facto follows
What I wish to emphasise is that the State Government is not determining whether there should be Statemonopoly or private enterprise when it is considering objections under section 68D2 it is only deciding whether the scheme put forward before it is such as can be approved with or without modifications within the four corners of the law laid down under section 68C If it comes to that conclusion the complete or partial exclusion follows
If on the other hand it modifies any part of the scheme exclusion fails to that extent
Considering therefore the nature and the scope of the hearing under section 68D2 it seems to me that there is really no lis
Even though there may be two parties before the State Government at the bearing there is no determination of the rights of the parties before it
The determination is only of the efficiency etc
of the scheme
proposed and whether it is in the public interest
Therefore it cannot be said that the nature of the hearing in this case makes the State Government a quasi judicial tribunal and the decision a quasijudicial act within the meaning of the principles laid down in Advani s Case1
I may in this connexion refer to Franklin vs Minister of Town and Country Planning 2
The facts there were these Under the New Towns Act 1946 the Minister prepared a draft order for a new town and caused it to be published and notices were given to the persons affected
Thereafter objections were received from a number of persons who were the owners and occupiers of dwelling houses and lands in the affected area
The Act provided that on receipt of the objections an inspector was to hold a public local inquiry into the objections and make a report to I  2  373 the Minister
Thereupon the Minister made the order under the Act
These proceedings as provided by the Act were taken with respect to a place called Stevenage in 1946 and the Minister passed the necessary order eventually
Some of the owners and occupiers of dwelling houses and lands situate at Stevenage applied to the Court to have the order quashed on the ground among others that the requirements of the said Act had not been complied with and the interests of the appellants had been substantially prejudiced
According to them the New Towns Act 1946 impliedly required that the objections of the appellants should be fairly and properly considered by the Minister and that the Minister should give fair and proper effect to the result of such consideration in deciding whether the said order should be made and that such implied requirements were not complied with
It was held in that case that the Minister of Town and Country Planning had no judicial or quasi judicial duty imposed on him and the procedure followed was according to the requirements of the Act
Now substitute in the place of the New Towns Act 1946 Chapter IV A of the Act substitute in the place of the draft order of the Minister the draft scheme of the State Transport Undertaking  and substitute in place of the final order the final approval of the State Government after hearing the objections
It would seem therefore that the parallel between the present case and Franklin s case 1 is complete
There a draft order was published followed by objections and an inquiry and hearing and a final order
Here also a draft scheme is published followed by objec tions and hearing and final approval
There the interest of persons occupying lands and houses in the area proposed to be affected by the order were involved
Here also the interests of the bus operators at least if not also of the travelling public are involved
In spite of that it was held that the Minister had no judicial or quasi judicial duty imposed on him by the Act and the reason was that he was merely considering whether the scheme should go through
Once he came to that conclusion after following the procedure 1  374 provided in the Act the  effect on those occupying lands and dwelling houses would follow according to the provisions of the Act
Here also once the State Government decides that the scheme should be approved the effect would be complete or partial exclusion of the bus operators of that area as envisaged in the scheme
To my mind therefore the present case is parallel to Franklin s case 1 and on a parity of reasoning I would hold that the function of the State Government was administrative when it considered the objections under section 68D2 and not quasi judicial
The only difference that I see between the two cases is that the New Towns Act provided specifically for hearing of the objections by an Inspector and not by the Minister while this is not so in the present case
I shall consider the effect of this later but this has in my opinion little if any bearing on the question whether the State Government was acting quasi judicially when deciding objections under section 68D2
I may also in this connexion refer to Nagendra Nath Bora vs Commissioner of Hills Division 2 where it was held by this Court that the question whether or not an administrative body or authority functions as purely administrative or in a quasi judicial capacity must be determined in each case on an examination of the relevant statute and rules framed thereunder
Similar was the view expressed by this Court in Express Newspapers Ltd vs The Union of India 3 when considering the functions performed by a wage Board and it was observed that whether the wage Board exercised judicial or quasi judicial functions is to be determined by the relevant provisions of the statute incorporating it and it would be impossible to lay down any universal rule which would help in the determination of this question
Applying therefore the principles laid down by this Court in these cases and taking into account the express provisions contained in Chapter IV A and the Rules framed thereunder the conclusion at which I arrive is that the hearing under section 68D2 was not before a quasi judicial tribunal and the decision was not a quasi judicial act and I  2 A IR 1958 SC 398
3 AIR 1958 SC 878
375 the State Government was acting purely administratively
Having reached this decision let me see what actually happened in this case
The matter pertains to the Road Transport Department which was in charge of the Chief Minister
The Home Secretary works under the Chief Minister and was in charge of the Road Transport Department
The Chief Minister ordered when the objections were put up before him that the representation should be heard by the Home Secretary and thereupon the Home Secretary heard the objectors and a note of the hearing was placed before the Chief Minister for orders
The Chief Minister then passed the order approving the scheme
The main attack on this kind of hearing is two fold
It is urged in the first place that rule 10 framed under Chapter IV A of the Act provides that the objectors will be given an opportunity of being heard in person or through authorised representatives
It is said that in view of this rule it was not open to the Chief Minister to direct the Home Secretary to bear the objections when the decision was to be made by the Chief Minister
It is pointed out that in Franklin s case 1 there was a specific provision that an Inspector will hold an inquiry and hear the objections and make his report and thereafter the Minister will pass the final order on the report of the Inspector
There is no such specific provision in the Act or the Rules in this case and therefore the hearing by the Home Secretary in these circumstances cannot be said to be a hearing by the State Government or the Chief Minister who had to decide the objections
The learned Attorney General relies in this connexion on the Rules of Business framed under article 1663 of the Constitution which provides for the making of rules for the more convenient transaction of the business of the Government of the State a copy of which was shown to us
It is said in paragraph 131 of the counter affidavit that these Rules do not provide for personal hearing but it is open to the Minister to pass a standing order as he thinks fit for the disposal of business in his Ministry
Consequently in exercise of this power the 1  376 Chief Minister passed an order that the Home Secretary should hear these representations in order to comply with the provision of Chapter IV A and Rule 10 even though there is no provision in the Rules of Business for oral hearing by the Minister or the Secretary
It is urged by Mr Nambiar that the order passed by the Chief Minister in this case that the hearing should be given by the Home Secretary was not a standing order but an order in this particular case
That seems to me to be correct  but the question is whether when an administrative hearing of this nature is being given under a rule which provides that the State Government should give a hearing to objectors it is necessary that the Minister who decides must also hear
It seems to me that where the hearing is administrative it is not essential that the Minister must hear so long as a hearing is given by an officer of the Government
I may in this connexion refer to article 154 of the Constitution which provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution
This being an ad ministrative hearing comes within the executive power of the State and there would be no infirmity if the Governor who in view of the provisions of the  is the State Government authorised through the Chief Minister a subordinate officer to give the hearing
Reference in this connection may also be made to Local Government Board vs Arlidge 1 which dealt with the manner of hearing of an appeal by the Local Government Board under the Housing Town Planning c Act 1909
The following observations of Lord Haldane at p 132 are apposite in this context   In the case of a Court of Law tradition in this country has prescribed certain principles to which in the main the procedure must conform
But what that procedure is to be in detail must depend on the nature of the tribunal
In modern times it has become increasingly common for Parliament to give an appeal 1  132 377 in matters which really pertain to administration rather than to the exercise of the judicial functions of an ordinary Court to authorities whose functions are administrative and not in the ordinary sense judicial
Such a body as the local Government Board has the duty of enforcing obligations on the individual which are imposed in the interest of the community
Its character is that of an organization with executive functions
In this it resembles other great departments of the State
When therefore Parliament entrusts it with judicial duties Parliament must be taken in the absence of any declaration to the contrary to have intended it to follow the procedure which is its own and is necessary if it is to be capable of doing its work efficiently
 These observations show that when one is dealing with a body like the State Government one has to take into account the procedure usually followed by the State Government in matters that come before it
In these circumstances if the Minister ordered in the absence of specific rules on the point that the hearing should be by the Secretary he was in my opinion complying with the essential requirement namely that there should be an oral hearing by the State Government before the decision of the objections
The bifurcation of the function of hearing from the function of deciding cannot in the circumstances when the hearing was administrative be said to be improper or against rule 10 and was necessary in order that the Government may function efficiently
Therefore I am of opinion that the hearing by the Secretary was sufficient compliance of rule 10 which required a personal hearing before the decision of the objections
The second ground of attack under this head is that in any case the Home Secretary who was also in charge of the Road Transport Department was not the right person to hear the objections on the ground that the scheme was put forward by his department
Here again the fact that the hearing was of an administrative nature has to be borne in mind
Bearing that in 48 378 mind and also considering that it was the Chief Minister who finally decided the matter and approved the scheme it cannot be said that the Home Secretary in charge of the Transport Department was an improper person to give the hearing
After all the scheme was put forward as a proposal
It was open to approval or modification after hearing the objections
The body which put forward the scheme was the State Transport Undertaking which was a limb of the Government
The Government has in a case of this kind to hear objections against a scheme prepared by one of its own limbs
In these circumstances if the Head of the Department namely the Secretary hears the oral objections on a scheme prepared by some one in that department who would necessarily be under him like the General Manager of the Road Transport Department it does not follow that the Secretary is an improper person to give the hearing because he hears his subordinate who put forward the scheme also along with the objectors
Further the Secretary in this case is not the deciding authority which is the Chief Minister  He made notes of the hearing and conveyed the arguments to the Chief Minister and as the matter was purely administrative the procedure cannot be said to be improper
I am therefore of opinion that the contentions under this head must be rejected
It is said that there was no real hearing at all and no genuine consideration of the objections as the issue had already been pre judged and reliance in this connexion is placed on the statement of the Chief Secretary dated the 26th of December 1957
It appears that the Chief Secretary said that the Government had already taken a decision to nationalise transport in Krishna District and some routes had been chosen
Learned Attorney General contends that this only refers to the scheme which had already been published on the 14th of November 1957
Mr Nambiar on the other hand contends that it goes much further and shows that the Government had already made up their mind to nationalise road transport in Krishna District and therefore the hearing which the State Government gave to the objectors to the scheme was 370 a farce
Now taking into account what I have said above about the scope of the hearing under section 68D2 it would be clear that there was no prejudging of the issue so far as the scheme was concerned
It is true that the Chief Secretary said that there would be nationalisation in Krishna District which meant of course complete exclusion of the private bus operators  but I have already said that the scope of the hearing under section 68D2 is to consider whether the scheme is efficient etc and is in public interest
If the answer is yes complete exclusion follows
Therefore when the Chief Secretary said that the Government had decided to nationalise road transport in Krishna District he was certainly not saying that the Government was wedded to the scheme which was published and to which objections had been invited
The speech merely emphasises the aspect of complete exclusion but it nowhere says that the scheme which was to bring about the exclusion into effect had already been approved
I may again in this connection refer to Franklin s case ibid where also an argument was raised that the Minister was biased so far as any consideration of the draft order was concerned as he had said in an earlier speech that he would make the said order
It was held that as the Minister had no judicial or quasi judicial duty imposed on him consideration of bias in the execution of this duty was irrelevant the sole question being whether or not he genuinely considered the report and the objections
In the present case also the sole question was whether the objections to the scheme were genuinely considered
If after genuine consideration they were approved complete exclusion would follow
Simply because the Chief Secretary said that the Government had decided to nationalise road transport in Krishna District it did not follow that the Government was not prepared to consider fairly the objections to the scheme on the approval of which nationalisation would follow through complete exclusion
Considering therefore that the hearing before the State Government under section 68D2 was purely administrative there is no force in this objection
380 Re
It is urged that the scheme was proposed by the Andhra Pradesh Road Transport Department as the State Transport Undertaking within the meaning of section 68A and was approved while that undertaking was still in existence
But immediately after the scheme was approved the Undertaking came to an end and the Road Transport Corporation came into existence and that Corporation could not carry out the scheme which had been approved before it came into existence
The argument seems to be that the body which prepared the scheme and got it approved is the body which can enforce it and as the Road Transport Corporation neither prepared it nor got it approved it cannot enforce it
I am of opinion that there is no force in this contention
The Road Transport Corporation came into existence oil the 11th of January 1958
On the same date the State Government passed an order under section 34 of the Road Transport Corporation Act No LIV of 1950 by which it directed that the Corporation shall take the management of the Road Transport Department of the Government of Andhra Pradesh and all assets and liabilities of the Department shall pass to the Corporation
The staff of the Road Transport Department were given option to serve under the Corporation and direction was given that those who opt to serve the Corporation shall be employed by the Corporation subject to the regulations made under the Act and the assurance given by the Government to the employees
It was urged in the first place that such an order could not be passed under section 34 of the Road Transport Corporation Act
Section 34 however gives very wide powers to the State Government to give directions to the Corporation including directions relating to the recruitment condition of service and training of its employees wages to be paid to the employee reserve to be maintained by it and disposal of its profits or stocks
In the circumstances it was open to the State Government under the wide powers Conferred by section 34 of the Road Transport Corporation Act to ask the Corporation which was being created to take over the assets liabilities and the employees of the Road Transport 381 Department which was being wound up
Now the effect of this order was to make the Road Transport Corporation a successor of the Road Transport Department
It is true that there is nothing in Chapter IV A of the Act which provides for succession of one kind of undertaking as defined in section 68Ab by another kind of undertaking as defined therein but when in fact it happens that the Road Transport Corporation is ordered under section 34 of the Road Transport Corporation Act to take over everything from the Road Trans port Department there is no reason why it should not be considered to be the successor of the Road Transport Department which was at that time the State Transport Undertaking
If the Road Transport Corporation is thus a successor of the State Transport Undertaking from the 11th of January 1958 I do not see why it cannot enforce the scheme which had already been approved at the instance of its predecessor
I can see no sense in requiring the Road Transport Corporation to go through all these steps which had been gone through by its predecessor except that it would delay the coming into force of the scheme  probably the argument has been raised merely for the sake of delay
But I am of opinion that the Road Transport Corporation in this case being the successor of the State Transport Undertaking which got the Scheme prepared and approved is en titled to enforce it under section 68 F of Chapter IV A in the absence of any provision to the contrary in the Chapter
This contention also fails
In view of what I have said above on the second contention the petition fails and I would dismiss it with costs
SINHA J I have had the advantage of perusing the judgments prepared by our brothers Subba Rao and Wanchoo JJ
After giving my best consideration to the opinions expressed in the two judgments I have come to the conclusion that I am not in a position to agree with all the conclusions arrived at by our brother Subba Rao
Two main controversies were raised on behalf of the petitioners namely 1 that the provisions of Chapter 382 IVA of the which will be referred to in the course of this judgment as the Act violate the fundamental rights guaranteed to citizens of India under the Constitution and 2 that the scheme framed under the Act was ultra vires the Act
I agree with my brother Subba Rao that the said Chapter IVA of the Act does not infringe any fundamental rights of the petitioners and that those provisions are constitutionally valid
I also agree with him in holding that the Road Transport Department of the Andhra Pradesh Government is a State Transport Undertaking under the Central Act that the Notification publishing the scheme had been validly done and that the conditions precedent to the initiation of the scheme had been fulfilled
But I do not agree with him in his conclusion that the State Government in approving the published scheme was discharging any judicial or quasi judicial function
On the other hand I agree with my brother Wanchoo in his conclusion that in so doing the State Government was only performing its normal administrative function
As my learned brothers aforesaid have stated the relevant facts in detail it is not necessary for me to repeat them but as I differ from my learned brother Subba Rao with whom some of my colleagues on the Constitution Bench have agreed and for whose opinions I have the greatest respect I should state my reasons for differing from them and for agreeing with our brother Wanchoo
It may be taken as the settled view of this Court that the question whether a certain decision envisaged in a statute is judicial or quasijudicial or only administrative in character must de pend upon the terms of the statute law itself apart from any pre conceived notions about the functions of a court or other tribunals vested with the duty and jurisdiction to decide controversies as a judicial body vide Province of Bombay vs Kusaldas section Advani 1 Nagendra Nath Bora vs Commissioner of Hills Division2 and Express Newspapers Limited vs Union of India 3
Now let us see what has been envisaged by the im 1  2  3 383 pugned provisions of Chapter IVA of the Act
The first step in the process is the preparation of a scheme of road transport service by a State Transport Undertaking for the purpose of providing an efficient adequate economical and properly coordinated road transport service
 Such a scheme may be to the exclusion complete or partial of other persons or otherwise
The second step would be to publish such a scheme in the Official Gazette and also in such other manner as the State Government may direct giving particulars of the nature of the service proposed to be rendered area or route proposed to be covered and other prescribed particulars section
68 C
The third step in that process is the filing of objections to the scheme by any person affected by the scheme so published
Those objections have to be filed before the State Government within thirty days from the date of the publication of the scheme section
68 D 1
The fourth step is to be taken by the State Government of considering the objections after giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be heard section
68 D2 
And the last step is that after hearing all concerned the State Government may approve or modify the scheme
It is noteworthy that this section does not contemplate an outright rejection of the scheme but only a modification if it is necessary
The scheme as approved or modified has then to be published in the Official Gazette and thereupon the scheme becomes final
Such a scheme is called the approved scheme  and the area or route to which it relate is called the notified area or notified route Is
68 D3 
The approved scheme may at any time be cancelled or modified by the State Transport Undertaking according to the procedure already indicated as contained in section 68 C and section 68 D if it is proposed to modify it section 68 E
The provisions of Chapter IV relating to the grant of stage carriage permits etc have been abrogated so as to make it obligatory on the Regional Trans port Authority to issue permits applied for by a State Transport Undertaking in pursuance of the approved scheme
Not only that with a view to giving effect 384 to the approved scheme in respect of a notified area or notified route the Regional Transport Authority has been authorized to refuse renewal of any permit to cancel any existing permit or to modify the terms of any existing permit section
68 F
The provisions of section 64 relating to appeals by aggrieved persons against orders of refusal to grant a permit or of revocation or suspension of a permit or of refusal to renew a permit etc have been abrogated in so far as those orders have been passed under section 68 F A review of the provisions aforesaid contained in sections 68 C to 68 F in Chapter IV A leads to the following conclusions 1A State Transport Undertaking has been authorized to determine whether or not it is in the public interest that road transport services in general or any particular class of service should be run and operated by the State Undertaking in relation to any area or route or a portion thereof keeping in view the purpose of providing an efficient adequate economical and properly coordinated road transport service
It is for the State Transport Undertaking to prepare a scheme in furtherance of its determination in favour of such a service and to publish the same in the Official Gazette and elsewhere with a view to informing the public including those who may be affected by such a scheme
2 Objections to such a scheme may be taken by parties interested but such objections are not claims
3 The State Government is authorized to decide the question whether the proposed scheme should be approved or modified after hearing the parties or their representatives in support of their objections to the scheme
As the objections have to be directed to the merits of the scheme proposed by the State Transport Undertaking there is no question of any lis between conflicting claims
4 No particular person or body of persons in the Governmental hierarchy of officers has been designated as the Authority to hear the objections and to pronounce upon them unlike the provisions in Chapter IV
Neither the provisions in Chapter IV A nor the rules made in pursuance of section 68 1 contemplate 385 adducing evidence or calling witnesses in support of or in opposition to the proposed scheme
5The right of appeal as contemplated by section 64 in Chapter IV has been expressly abrogated by section 68 F3
Nor is there any provision in Chapter IV A requiring reasons to be given in writing for an order
passed by a Regional Transport Authority under section 68 F1 and 2 as contrasted with section 577 in Chapter IV which requires the Authority to give its reasons in writing for refusing an application for a permit of any kind because such an order is open to appeal revision or review
The question now arises whether in view of the provisions of Chapter IV A summarized above and the conclusions as indicated above the determination by the State Government is judicial or quasi judicial in character as contended for the petitioners or only of an administrative character as contended on behalf of the respondents
In order that a determination may be characterized as judicial or quasi judicial it is essential that it should be objective based on evidence pro and con not necessarily given in accordance with the strict rules of evidence by a determinate authority who should not have the right to delegate such a function of a judicial character
Section 68 D2 authori zes the State Government to decide whether or not the proposed scheme should be approved or modified
 The State Government may mean the Governor himself or any of his Ministers or Deputy Ministers or any officers in the Secretariat according to the rules of business promulgated under article 166 of the Constitution
Section 68 D2 could not have meant that the Governor himself or any of his Ministers should personally hear the objections that would be throwing too great a burden on them
The objections may be heard by any one who has been delegated that power
If that is correct the function to be performed under section 68 D2 does not satisfy the test of a judicial hearing
Under that section the objections may be heard by A  and the decision arrived at by B 
If that is 49 386 a regular procedure under that section that is not an index of a judicial process
Another very important consideration pointing to the conclusion that the determination under section 68 D2 is not of a judicial character using it in the comprehensive sense including quasi judicial  which expression has not been approved by high judicial authorities is that no objective tests have been laid down in Chapter IV A with reference to which the determination has to be arrived at
The expressions efficient adequate economical properly coordinated and public interest are matters of opinion and policy as section 68 C itself indicates and do not lay down any objective tests
If I am right in that conclusion there cannot be any question of evidence forthcoming in proof of something which is subjective to the authority determining that matter
A very fundamental consideration in this connection is whether sections 68 C and 68 D contemplate any lis
In other words what is the proper scope and ambit of the inquiry envisaged by those sections  The scheme prepared and published in accordance with section 68 C by a State Transport Undertaking is placed before the public only after the Undertaking has reached the conclusion that it is necessary in the public interest
After the scheme has been prepared and published as aforesaid the objections to be filed under section 68 D have reference to the basic question whether or not the scheme as published was in public interest
Such objections are open to any person or organization eg an Automobile Association and are not limited only to persons who are providing road transport services
In my opinion it is a mistake to suppose that the objections contemplated by section 68 Dl could be on grounds personal to the objectors who are engaged in the business of providing road transport services
It is not open to any particular individual carrying on the business of providing road transport services to claim that his route should be excluded from the operation of the published scheme
I am led to that conclusion by the effective words of section 68 Dl namely file objections thereto that is to the scheme published under section 68 C 387 The objections have to be limited to the merits of the scheme as propounded by the State Transport Undertaking
It will therefore be opening the gates too wide to hold that the objections have reference to particular routes or portions of routes covered by private transport services
The underlying purpose of inviting objections is not to invite claims by individual businessmen engaged in providing road transport services but to bring out useful information bearing on the feasibility and soundness of the scheme as propounded by the Undertaking
Once the Government has decided upon a policy of nationalization of road transport facilities the question of safeguarding the interest of individual businessmen in that line is no more relevant
What is relevant
for the purpose of the inquiry by the Government on receipt of objections is whether the published scheme is in the interest of the public
In my opinion therefore it is erroneous to suppose that the object of section 68 Dl is to afford any remedy to a private individual in his personal interest
Particulars of the scheme required to be published under section 68C are meant for the information of the public so that persons feeling interested in a public venture like that may offer intelligent and constructive criticism with reference to the merits of the scheme
It is equally erroneous to suppose that there are two parties one represented by the Undertaking and the other represented by persons who are engaged in the business of providing road transport services and that the Government is the third party which is the arbitrator between the two contesting parties
That in my opinion is not a correct reading of the provisions of Chapter IV A of the Act
The whole aim and object of that Chapter is to replace individual businessmen engaged in that trade by nationalised road transport services which are meant to be run in the interest of the community as a whole and thus to serve the best public interest
The Government is as much interested in the scheme as the Road Transport Undertaking which is a creature and a limb of the Government brought into existence with a view to implementing the policy of the Government to provide nationalised 388 road transport services
That being the whole scheme of the policy of nationalisation it is not correct to represent the State Transport Undertaking as entering into competition with other individuals or incorporated bodies whose business it is to provide the same kind of transport facilities
That is made clear by the provisions of section 68 F which as indicated above make it obligatory on the Regional Transport Authority to issue permits as applied for by the State Transport Undertaking
It follows from the foregoing observations that there is no question of the Government functioning as an adjudicating authority as between the rival claims of the Undertaking and private persons engaged in the same kind of activity or that the Secretary to Government in the Department of Road Transport when he personally heard the objections was functioning as a judge or that he was disqualified by any bias from hearing those objections
If we carry this line of reasoning to its logical conclusion then even the Minister in charge of the Department may be said to be equally interested and therefore equally biased and thus disqualified from hearing those objections and coming to his own determination as contemplated in section 68 D2
In my opinion the concept that a person should not be a judge in his own cause is wholly foreign to the scheme and provisions of Chapter IV A of the Act
The scheme as prepared and published may have proposed as it did in the instant case completely to exclude other persons from providing road transport service in the notified area by the notified routes
But the State Government is not concerned with determining whether any or some or all of the objectors could be permitted to provide or continue to provide their own road transport service
The State Government under section 68 D2 has only to decide whether or not the proposed scheme should be approved or modified in any way
The decision to be arrived at by the State Government is confined to the scheme and is not concerned with rival claims by persons providing road transport service in the same area or by the same routes
That in my opinion is the reason why under that section the State Government has not been authorized altogether to
389 cancel the scheme but only to approve or modify it
The State Government has to examine the soundness of the declaration made by the Road Transport Undertaking that the proposed scheme is in public interest
The stage of cancellation comes if at all later under section 68 E when experience gained in working the approved scheme may lead the State Transport Undertaking to the conclusion that it should be cancelled or modified
But at the initial stage that is to say under section 68 D the proposed scheme is already there only to be approved or modified in the light of the objections raised if any
It has been held and it may be taken as well settled that when there is a competition between a number of applicants for a particular route for supplying road transport service the Regional Transport Authority or any other Authority deciding between those conflicting claims has to determine the matter in a quasijudicial way because they are determining questions affecting the rights of individuals
But in the proceeding before the State Government no such rival claims have to be decided upon
What has to be determined is whether the proposed scheme will serve public interest
Thus in proceedings under Chapter IV of the Act individual claims have to be decided upon whereas under Chapter IVA it is the collective interest of the community as a whole which is the subjectmatter of determination by the State Government
In other words the proposed scheme is the outcome of the decision by a limb of the State Government State Transport Undertaking which has come to the con clusion that it is in the public interest that road trans port service should be run and operated by the State
The calling of objections by persons affected by the scheme is not with a view to deciding between the rival claims of the State Undertaking and individuals providing road transport services in the areas or routes proposed to be covered
The State Transport Undertaking has not made any claim at this stage
Such a claim arises after the determination by the State Government Under section 68D2
That stage is reached when the State Transport Undertaking applies for permits under section 68F
Such a claim for a permit once 390 made by the Undertaking is no more a rival claim to be treated along with the claims of other individuals providing such road transport services but an absolute claim which under that section shall be granted by the Regional Transport Authority which is authorized even to cancel an existing permit or modify the terms of an existing permit or to refuse renewal of permits with a view to implementing the approved scheme
In my opinion therefore it is not correct to view the proceedings under Chapter IVA before the State Government as a lis between any rival claims unlike proceedings under Chapter IV of the Act
In view of these considerations I would hold that there is no lis between rival claims no determinate tribunal to determine any lis and no procedure prescribed in Chapter IVA approximating or even simulating judicial procedure
That being so there is no question of any bias because there can be none in a determination which is come to by officers of the Government in the discharge of their administrative duties
As already indicated the question now under consideration does not admit of a general answer
The answer must depend upon the relevant statutory provisions and one case decided on its own basic statutory provisions cannot be a controlling authority for another but by way of illustration reported cases dealing with similar questions have been referred to
My learned brother Wanchoo J has referred in detail to Franklin s case hence I need not add any observations with reference to that case
But another case namely Robinson vs Minister of Town and Country Planning 1 perhaps not referred to at the bar seems to me to be instructive in so far as it has discussed this very question with reference to the provisions of section 11 of the Town and Country Planning Act 1944 which is in these terms   Where the Minister of Town and Country Planning in this Act referred to as the Minister  is satisfied that it is requisite for the purpose of dealing satisfactorily with extensive war damage in the area of a local planning authority that a part or parts of their I  853 854
391 area consisting of land shown to his satisfaction to have sustained war damage or of such land together with other land contiguous or adjacent thereto should be laid out afresh and redeveloped as a whole an order declaring all or any of the land in such a part of their area to be land subject to compulsory purchase for dealing with war damage may be made by the Minister if an application in that behalf is made to him by the authority before the expiration of five years from such date as the Minister may by order appoint as being the date when the making of such applications has become practicable
A part of the area of a local planning authority as to which the Minister is satisfied as aforesaid is in this Act referred to as an area of extensive war damage 
 Lord Greene M R who delivered the leading judgment of the Court of Appeal reversing that of Henn Collins J thus summarized the procedure laid down in the Act   The procedural provisions in connection with the obtaining of an order under the sub section may so far as relevant be summarised as follows a Under sub section
4 at least two months before the application is made the authority must publish a notice in a local newspaper b under sub section
5 the application must designate  the land to which the application relates by reference to a map with or without descriptive matter  c under sub section
6 the a application must be accompanied by a statement illustrated by a map for indicating the manner in which it is intended that the land in the area of extensive war damage should be laid out as respects its internal arrangement and in relation to the existing or intended lay out of the surrounding locality and the manner in which it is intended that such land should be used whether for purposes requiring the carrying out of development or otherwise  d under sub section
7 if the Minister is satisfied that these particulars are adequate for enabling the expediency of the making of an order  to be properly considered he notifies the authority who must then advertise for objections e under sched
I unless the Minister apart from an objection which must be accompanied by a 392 written statement of its grounds decides to refuse the application or to make an agreed modification to meet the objection he must consider the grounds of the objection as set out in the statement  and may call for a further statement
Under para
4 of the schedule the Minister if satisfied that he is sufficiently informed for the purpose of his deciding as aforesaid sc
whether or not to make the order applied for as to the matters to which the objection relates  he may decide to make the order without further investigation
Subject to this the Minister para 5 must give the objector an opportunity of appearing before a person nominated by the Minister and if the objector avails himself of this a similar opportunity to the authority
Under para
6 if it appears to the Minister that the matters to which the objection relates call for investigation by a public inquiry he must cause such an inquiry to be held in which case the requirements of para
5 as to a private hearing need not be complied with f under section 18 subject to the provisions of sched
1 the Minister may make the order with or without modification except that he cannot extend the area unless all persons interested consent
 In the case of Phoenix Assurance Co Ltd vs Minister of Town and Country Planning 1 Henn Collins J considered the nature of the order to be passed under section I I of the Town and Country Planning Act 1944 and came to the conclusion that the Minister s function was of a quasi judicial character
He followed that decision in the case which came up before the Court of Appeal in Robinson vs Minister of Town and Country Planning 2
The Court of Appeal reversed the decision of the learned Judge and did not approve of his decision in Phoenix Assurance Co Ltd vs Minister of Town and Country Planning 1
In the course of his judgment Lord Greene M R observed as follows at page 859  It is the case of an original order to be made by the Minister as an executive authority who is at liberty to base his opinion on whatever material he thinks fit I 2  853 854
393 whether obtained in the ordinary course of his executive functions or derived from what is brought out at a public inquiry if there is one
To say that in coming to his decision he is in any sense acting in a quasi judicial capacity is to misunderstand the nature of the process altogether
I am not concerned to dispute that the inquiry itself must be conducted on what may be described as quasi judicial principles but this is quite a different thing from saying that any such principles are applicable to the doing of the executive act itself ie  the making of the order
The inquiry is only a step in the process which leads to that result and there is in my opinion no justification for saying that the executive decision to make the order can be controlled by the courts by reference to the evidence or lack of evidence at the inquiry which is here relied on
Such a theory treats the executive act as though it were a judicial decision or if the phrase is preferred a quasi judicial decision which it most emphati cally is not
 I have devoted considerable space to the decision of the Court of Appeal supra to show the close resemblance between the procedure envisaged in the Act of the British Parliament and the law as laid down in Chapter IV A of the Act
In the reported case also there had to be an inquiry if objections were raised to the notified scheme of town planning and the Minister concerned had to consider all the evidence led on behalf of the objectors
In that case unlike the instant case there was a provision for receiving evidence pro and con but even then the Court of Appeal did not hold that the function of the Minister was of a judicial or quasi judicial character chiefly on the ground that no objective tests were possible in coming to his conclusions before passing the order under the relevant section of the Act of Parliament
For the reasons given above I have come to the conclusion in agreement with my brother Wanchoo J that the Government or the Minister concerned when passing an order under section 68 D2 had not to discharge a quasi judicial function but was acting only in its or 50 394 his administrative capacity
It follows from this con clusion that all considerations flowing from the basic idea of the proceedings before the State Government being of a quasi judicial character are wholly out of the way
It must therefore be held that the order of the State Government impugned in this case is not open to any interference by the courts
I would therefore dismiss the petition with costs
ORDER In view of the opinion of the majority the order approving the scheme is hereby quashed and a direction issued to the first respondent to forbear from taking over any of the routes in which the petitioners are engaged in transport business
This will not preclude the State Government from making the necessary enquiry in regard to the objections filed by the petitioners in accordance with law
The petitioners will have liberty to file additional objections if any
The parties to bear their own costs


Summary:
Appellant on behalf of minor landlord who got title by will initiated eviction proceeding against the respondent tenants under Section 29 read with section 31 Ad of the Bombay Tenancy and Agricultural Lands Act
1948 before the Mamlatdar on the ground of bona fide requirement of the land for his personal cultivation
Respondent tenants raised preliminary objection on the question of maintainability of the suit on the ground that as the appellant being a trans feree of the land and having not inherited the same was not the landlord  under Section 31 A Upholding the objection of the Respondents the Mamlatdar dismissed the application
Appellant s appeal before District Deputy Collector and his revision before the Revenue Tribunal were dismissed
Chal lenging the orders of the Revenue Courts writ application was filed in the High Court which was also dismissed and against which the present appeal was filed
Dismissing the appeal this Court HELD 1
Section 31d requires that the name of the person applying for the eviction of the tenant or of his ancestors should be recorded as landlord in the record of rights on 111952 and he should further be recorded as landlord on the appointed day namely
1561955
Both these conditions are required to be fulfilled before a suit or an application is maintainable by a landlord for the eviction of the tenant
If either of the two conditions are not satisfied the application for eviction the tenant is not maintainable
The provisions of clause d further provides that even if the landlord s name is not recorded but if the name of his ancestor is recorded similarly if the landlord is a member of joint family the name of any member is recorded the application would be maintainable
This provi sion indicates the legislative intent that a person succeed ing to the property from his ancestor is 515 entitled to maintain the application for eviction of a tenant provided he fulfils other conditions
But a person who may have obtained right to the agricultural land by assignment transfer or by auction sale or in any similar mode is not included within the expression of landlord  entitling him to evict the tenant
After the amendment of Section 31Ad the Legislature made it clear that transferees and assignees from persons whose name may be appearing in the record of rights during the relevant period are not to be treated as landlords for the purposes of the Section
The expression or otherwise  occurring in clause d indicates that a person claiming title by transfer assignment court sale or in any other mode like gift or will even from ancestor will not be a landlord for the purposes of the Section
A person inherit ing property from his ancestor would be landlord provided his ancestor s name appears in the record of rights during the required period
But a person claiming title on the basis of transfer assignment
auction sale or otherwise including gift or will from the predecessors in title even though he may be his ancestor and his name may be recorded in the record of rights during the required period will not be entitled to maintain a suit for eviction of a tenant
The Legislature placed this restriction in order to protect the interest of the tenants and to prevent avoidance of the restrictions placed by the ceiling laws
In the absence of any such provision a landlord could transfer land to his descendents by gift or will to evade the ceiling law and to evict tenants
Under Section 31 Ad such a beneficiary is not entitled to maintain a suit for the eviction of a tenant from the agricultural holding as he would not be a landlord within the meaning of the Section
Waman Ganesh Joshi vs Ganu Guna Khapre 61 Bombay LR 1267 Khalliulla Hasmiya vs Yesu 50 Bombay LR 201over ruled
Bhanushanker Ambalal vs Laxman Kala  Ors 1960 Gujarat Law Reporter 169 approved
Umraomiya Akbartniya Malek vs Bhulabhai Mathurbhai Patel Appeal No 11263 decided on 33
1972 High Court of Guja rat referred