s Nos 76 217 to 228 of 1960
Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights
A V Viswanatha Sastri and T V R Tatachari for the petitioners In petitions Nos 76 87 93 104 and 217 228 of 1960
T V R Tatachari for the petitioners In petitions Nos 72 and 229 233 of 1960
D Narasaraju Advocate General for the State of Andhra Pradesh P R Ramchandra Rao and T M Sen for the respondents In all the petitions
September 8
The Judgment of the Court was delivered by SUBBA RAO J
These petitions are filed under article 32 of the Constitution for the enforcement of the petitioners  fundamental right to carry on the business of motor transport in West Godavari District in 645 the State of Andhra Pradesh by the issuance of writs of certiorari or any other appropriate writs orders or directions to quash the schemes of road transport services as finally approved by the Government of Andhra Pradesh on March 21 1960 and for other incidental reliefs
In exercise of the powers conferred by section 68C of the IV of 1939 as amended by the Central Act 100 of 1956 hereinafter called the Act Shri Guru Pershad the Chief Executive Officer Andhra Pradesh State Road Transport Corporation hereinafter called the Transport Corporation published seven proposals dated December 7 1959 in the Andhra Pradesh Gazette dated December 17 1959 propounding seven schemes for the nationalization of the road transport in respect of different parts of West Godavari District in that State
Under that notification objections from the public and affected parties were invited to be filed within 30 days of the publication thereof More than 3000 objections were received by the Government against the said schemes
After considering the objections the Government issued notices to the objectors or their representatives and the representatives of the Transport Corporation informing them of the time place and the dates of hearing
On the notified dates namely March 10 11 and 12 1960 200 objectors were present and most of them were represented by Advocates
The Transport Corporation was also represented by its Chief Executive Officer and its legal advisers
The Minister in charge of the portfolio of transport held an enquiry considered the conflicting arguments advanced gave definite findings on the points urged rejected all the objections but one and approved the schemes with a slight modification
The seven schemes were directed to be put in force from different dates which were given in the order made by the Minister
The aggrieved operators who were not satisfied with the order of the Minister filed the present petitions for the said reliefs
Shri A V Viswanatha Sastri learned counsel for the petitioners raised before us the following points
646 1The provisions of Ch
IVA of the Act are ultra vires the powers of Parliament because they are within the exclusive legislative field of the States
2 The provisions of Ch
IVA of the Act infringe the fundamental rights of the petitioners under article 191g of the Constitution and are not saved by el
6 of the said Article
3 The provisions of Ch
IVA are also violative of article 14 of the Constitution
4 The order of the Government confirming the schemes is vitiated by the doctrine of bias and therefore void
5 Though in fact seven schemes are framed in effect they are component parts of one scheme and that device has been adopted to circumvent the judgment of this Court in Srinivasa Reddy vs The State of Mysore 1
6 The schemes are void inasmuch as they area prepared and published by the Chief Executive Officer who was not one of the persons who could act on behalf of the Transport Corporation under section 13 of the Road Transport Corporations Act
7 The schemes as propounded by the Transport Corporation did not give the number of vehicles proposed to be operated in each route as it should have given under r 4 of the Andhra Pradesh Motor Vehicles Rules hereinafter called the rules and the modification made by the Minister directing the Transport Corporation to do so does not also comply with the requirements of the said rule
8 In exercise of the power conferred under r 5 of the Rules the State Transport Under taking conferred upon itself power to vary the fre quency of the services and that rule and the note made pursuant thereto are inconsistent with the provisions of the Act and therefore void
9 The proposed schemes include three new routes and that is illegal as the said Transport Undertaking has no power to include any new routes in a scheme proposed by it
Though many other questions are raised in the petitions they are not pressed before us
Learned Advocate General for the State of Andhra Pradesh sought to sustain the schemes as approved by the Minister in their entirety
1 1960 2 SCR 130
647 We shall now proceed to deal with the contentions in the order they were raised
1  The first contention does not now merit a detailed consideration as it has been considered and rejected by this Court in H C Narayanappa vs The State of Mysore 1
In that case after considering the question Shah J speaking for this Court observed We are therefore of the view that Chapter IVA could competently be enacted by the Parliament under entry No 21 read with entry No 35 of the Concurrent List Nothing further Deed be said on this point
With respect we accept and follow the said decision
2 The next contention is based upon article 19 of the Constitution
The question is whether Ch
IVA of the Act is saved by article 196 of the Constitution
If Chiva which provides for the nationalization of road transport services in the manner prescribed thereunder is not a permissible legislation covered by article 196 it would certainly offend against the fundamental right of the petitioners to do business in motor transport
The constitutional validity of Ch
IVA of the Act was raised in Gullapalli Nageswara Rao vs Andhra Pradesh Road Transport Corporation 2
There it was argued that Ch
IVA of the Act was a piece of colourable legislation whose real object was to take over the business of the petitioners therein under the cover of cancellation of permits in contravention of article 31 of the Constitution and that plea was rejected by this Court
But no attack was made on the validity of Ch
IVA of the Act on the ground that it infringed the provisions of article 191g of the Constitution and was not saved by cl
6 of the Article
That point is now raised before us
Under article 191g all citizens shall have the right to carry on trade or business
The material part of 6 of article 19 as amended by the Constitution First Amendment Act 1951reads  Nothing in sub clause g of the said clause shall affect the operation of any existing law in so far 1  2 1959 Supp 1 SCR 319
83 648 as it relates to or 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 business industry or service whether to the exclusion complete or partial of citizens or otherwise
 The only question is how far and to what extent article 196 secures the validity of Ch
IVA of the Act from attack that it offends against article 191g  Learned counsel for the Petitioners contends that article 196ii provides only for partial exclusion of citizens that is the exclusion of a certain class of persons as a whole and not for partial exclusion of some among the same class
As section 68C the argument proceeds enables the State Transport Undertaking to frame a scheme for excluding some among the same class the said provision is not saved by article 196 of the Constitution
Relevant portions of section 68C of the Act read  Where any State transport undertaking is of opinion that   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  Under this section a scheme may be framed in respect of road transport service in general or in respect of a particular class of such service empowering the State Transport Undertaking to run the said service  it may be in relation to any area or route or a portion thereof it may also be to the exclusion of all or some of the persons running the said service in general or a particular class of it
The section enables the State to take over particular class of a service say the bus service and exclude all or some of the persons doing business in that class of service
Learned counsel says that this section confers a wide power beyond the permissible limits of article 196ii of the Constitution
To state it differently the argument is that while article 196ii does not enable a partial exclusion 649 of some among the same class of service section 68C permits the said exclusion
The answer to this argument depends upon the true meaning of the provisions of the said Article
Under sub cl
ii of article 196 the State can make a law relating to the carrying on by the State or by a corporation owned or controlled by the State of any particular business industry or service whether to the exclusion complete or partial of citizens or otherwise
Article 196 is only a saving provision and the law made empowering the State to carry on a business is secured from attack on the ground of infringement of the fundamental rights of a citizen to the extent it does not exceed the limits of the scope of the said provision
Sub clause ii is couched in very wide terms
Under it the State can make law for carrying on a business or service to the exclusion complete or partial of citizens or otherwise
The law therefore can provide for carrying on a service to the exclusion of all the citizens it may exclude some of the citizens only it may do business in the entire State or a portion of the State in a specified route or a part thereof The word  service  is wide enough to take in not only the general motor service but all the species of motor service
There are therefore no limitations on the State s power to make laws conferring monopoly on it in respect of an area and person or persons to be excluded
In this view it must be held that section 68C does not exceed the limits prescribed by article 196ii of the Constitution
3 The next contention is that the provisions of Ch
IVA of the Act and particularly those of section 68C thereof offend against article 14 of the Constitution
The argument is that Ch
IVA enables the State to make a discrimination between the State Road Transport Corporation on the one hand and private operators and private transport undertakings on the other and also to make a similar discrimination between the private operators or the private transport undertakings and that this discrimination is left to the arbitrary discretion of the Transport Corporation
It is true that the provisions of this Chapter 650 enable a scheme to be framed conferring a monopoly on the State in respect of transport services to the partial or complete exclusion of other persons
However the provisions of the scheme do not make any distinction between individuals operating a transport service and private transport undertakings they are all treated as one class and the classification is only made between the State Transport Undertaking and private transport undertakings whether the business is carried on by individuals or firms or companies
The only question therefore is whether such a classification offends against the equality clause of the Constitution
Article 14 says  The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India This doctrine of equality has been so frequently considered by this Court that it does not require any further consideration
It has been held that this Article does not prohibit reasonable classification for the purpose of legislation but such a classification cannot be arbitrary but must be based upon differences which have rational relation to the object sought to be achieved
Doubtless in the present case the Legislature placed the State Transport Undertaking in a class different from other undertakings
The question is whether the classification made in Ch
IVA of the Act is just and has reasonable relation to the object of the legislation
The object of Ch
IVA as disclosed by the provisions of section 68C is to provide in the interest of the public an efficient adequate economical and properly coordinated road transport service
To achieve that object section 68C confers a power on the State Transport Undertaking to prepare a scheme to run the service whether to the exclusion complete or partial of other persons or otherwise
The classification has certainly reasonable nexus to the object sought to be achieved
Ordinarily a State Transport Undertaking compared with per
sons or private undertakings should be in a better Position than others to carry on the said services for the benefit of the public administratively financially 651 and technically it can be expected to be in a far better position than others
It can provide more well equipped buses give better amenities to the travelling public keep regular timings repair or replace the buses in emergencies
It may also employ efficient supervisory staff to keep things going at an appreciably high standard
We are not suggesting that there are no individuals or private companies who can efficiently run the service
But the State compared with individuals should certainly be in a better position to achieve the object namely to improve the road transport service in all its diverse aspects
In such a situation when the legislature which must be presumed to understand and correctly appreciate the needs of its own people makes a classification between a State Transport Undertaking and others carrying On the business of transport services we cannot say that there is no reasonable basis for such a classification
But it is said that section 68C of the Act and other provisions of Ch
IVA thereof confer an arbitrary power upon the State Transport Undertaking to discriminate between individuals and the said Undertaking between individuals and private undertakings and between individuals and individuals
But the scheme of Ch
IVA which has been considered by this Court in Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation 1 evolves a machinery for keeping the State Transport Undertaking within bounds and from acting in an arbitrary manner for section 68C lays down the legislative policy in clear and understandable terms and the State Transport Undertaking can initiate a scheme only for providing an efficient adequate economical and properly coordinated road transport service
Another condition which it lays down is that the scheme is necessary in the public interest
The scheme so framed is published with all necessary particulars in the official Gazette and also in such manner as the State Government may direct persons affected by the scheme may file objections within the prescribed time  the State Government after considering the objections and 1 1959 Supp 1 SCR 319 652 giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be beard in the matter may approve or modify the scheme the scheme so approved or modified is published
The rules framed under the Act provide for personal hearing
If the State Transport Undertaking seeks to modify a scheme it will have to follow the same procedure before doing so see as
68C 68D and 68E of the Act
It will be seen from the provisions of Ch
IVA of the Act that the State Transport Undertaking before propounding a scheme arrives at the decision on objective criteria
The parties affected and the public are given every opportunity to place their objections before the Government and the Government after following the prescribed quasi judicial procedure confirms or modifies the scheme
The scheme before it is finalised is subjected to public gaze and scrutiny and the validity and appropriateness of the provisions are tested by a quasi judicial process
The Government cannot be equated to a Court but the procedure prescribed accords with the principles of natural justice
It is said that the State Transport Undertaking is either the State Government or a corporation owned or controlled by the State and as such the entire quasi judicial procedure prescribed is only a cloak to screen the exercise of an absolute and arbitrary power on the part of the Government
We cannot say that Ch
IVA is such a device
The Legislature made a sincere attempt to protect as far as possible individual rights from the arbitrary acts of the executive
Once it is conceded that Ch
IVA of the Act is constitutionally good and that the Legislature can validly make law for nationalization of the road transport service the procedure laid down for implementing the said policy cannot in our view be said to be unreasonable
If in any particular case the mala fides of the authorities concerned and collusion between the State Transport Undertaking and the State Government to deprive particular persons of their right to do road transport business or to drive out particular persons from the trade on extraneous 653 considerations are established that may be a ground for striking down that particular scheme
But the provisions of Ch
IVA cannot be struck down on the ground that they confer an arbitrary power on the State Transport Undertaking and on the State Government to discriminate between individuals and the State Transport Undertaking between individuals and private undertakings and between individuals and individuals
This question was raised in Saghir Ahmad vs The State of U P 1
That case dealt with the provisions of the U P Road Transport Act 1951 U P Act II of 1951
Under section 423 of that Act the Government was exempt from taking permits for its own vehicles and it could run any number of buses as it liked without the necessity of taking out permits  for them
In furtherance of the State policy to establish a complete State monopoly in respect of road transport business the transport authorities began not only to cancel the permits already issued to private operators but also refused to issue permits to others who would other
wise be entitled to them
The constitutional validity of that section was questioned
It may also be mentioned that though that decision was given after the Constitution First Amendment Act 1951 it was not based upon that amendment as the Constitution before the amendment governed the rights of the parties therein
In that situation adverting to the argument based upon article 14 of the Constitution Mukherjea J as he then was made the following observations at p 731  There is no doubt that classification is inherent in the concept of a monopoly and if the object of legislation is to create monopoly in favour of the State with regard to a particular business obviously the State cannot but be differentiated from ordinary citizens and placed in a separate category so far as the running of the business is concerned and this classification would have a perfectly rational relation to the object of the statute Section 3 of that Act provided that  where the State 1  654 Government is satisfied that it is necessary in the interest of general public and for subserving the common good so to direct it may declare that the Road Transport Services in general or any particular class of such service on any route or portion thereof shall be run and operated by the State Government exclusively or by the State Government in conjunction with railway or partly by the State Government and partly by others in accordance with the provisions of this Act It was contended therein that as the State could choose any and every person it liked for the purpose of being associated with the transport service and as there were no rules to guide its discretion that provision would offend against article 14 of the Constitution
It was pointed out on behalf of the State that the discretion under section 3 of that Act was not uncontrolled as that could Only be done by granting of permits in accordance with the provisions of the 
Accepting the construction suggested this Court held that the discretion to be exercised by the State would be a regulated discretion guided by statutory rules
But in the instant case no liberal construction of the provisions need be resorted to for Ch
IVA of the Act in specific terms provides a complete and in the circumstances satisfactory machinery for reasonably regulating the exclusion of all or some of the private operators from the notified area or route
We therefore hold that the provisions of Ch
IVA of the Act do not infringe the equality clause enshrined in Art 14 of the Constitution
4 By the next contention the learned counsel attacks the validity of the scheme on the ground that the Government is actuated by bias against the private operators of buses in West Godavari District and indeed had predetermined the issue
In the petitions it was alleged that the Government had complete control over the Road Transport Corporation that the entire administration and control over such road transport undertaking vested in the Government that the Chief Secretary to the Government of Andhra Pradesh was its chairman and that therefore the 655 entire scheme from its inception to its final approval was really the act of the Government
On this hypothesis it was contended that the Government itself was made a judge in its own cause and that therefore its decision was vitiated by legal bias
That apart it was also pleaded that a sub committee consisting of Ministers Secretaries and officers of connected departments and presided over by the Minister in charge of transport decided in its meeting of January 28 1960 that under the scheme of nationalization of bus service the State Government would take over the bus services in West Godavari District and Guntur District before the end of that year and therefore the Minister in charge of the portfolio of transport he having predetermined the issue disqualified himself to decide the dispute between the State Transport Undertaking and the petitioners
The self same questions were raised in Gullapalli Nagestvara Rao vs The State of Andhra Pradesh1
There as in this case it was contended that the Chief Minister who was in charge of the portfolio of transport could not be a judge in his own cause as he was biased against the private operators
This Court pointed out the distinction between official bias of an authority which is inherent in a statutory duty imposed on it and personal bias of the said authority in favour of or against one of the parties
In dealing with official bias this Court after considering the relevant English decisions observed at p 587 thus These decisions show that in England a statutory invasion of the common law objection on the ground of bias is tolerated by decisions but the invasion is confined strictly to the limits of the statutory exception
It is not out of place here to notice that in England the Parliament is supreme and therefore a statutory law however repugnant to the principles of natural justice is valid  whereas in India the law made by Parliament or a State Legislature should stand the test of fundamental rights declared in Part III of the Constitution 1  84 656 Then this Court proceeded to state that the provisions of the Act did not sanction any dereliction of the principles of natural justice for the Act visualized in case of conflict between the undertaking and the operators of private buses that the State Government should sit in judgment and resolve the conflict
Much to the same effect has been stated by Shah J in H C Narayanappa vs The State of Mysore 1 though in slightly different phraseology
The learned Judge stated   It is also true that the Government on whom the duty to decide the dispute rests is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme the approval or modification is not open to challenge on a presumption of bias
The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased his decision will not be liable to be called in question merely because he is a limb of the Government
 In the above cases the transport department of the Government was the transport undertaking but here the State Road Transport Corporation which is a body corporate having a perpetual succession and common seal is the transport authority
Though under the provisions of the Act the State Government has some control it cannot be said either legally or factually that the said Corporation is a department of the State Government
The State Government therefore in deciding the dispute between the said undertaking and the operators of private buses is only discharging its statutory functions
This objection therefore has no merits
Nor can we say that it has been established that the Minister in charge of the portfolio of transport has been actuated by personal bias
The fact that he presided over the sub committee constituted to implement the scheme of nationalization of bus services in the West Godavari District does not in 1  657 itself establish any such bias
Indeed in the counter affidavit filed on behalf of the first respondent the con tents and authenticity of the reports of the proceedings of the sub committee published in the Telu daily Andhra Pradesh  were not admitted
Even if the sub committee came to such a decision it is not possible to hold that it was a final and  irrevocable decision in derogation of the provisions of the Act
it was only a policy decision and in the circumstances could only mean that the sub committee advised the State Government to implement the policy of nationalization of bus services in that particular district
The said decision could not either expressly or by necessary implication involve a predetermination of the issue it can only mean that the policy would be implemented subject to the provisions of the Act
It is not suggested that the Minister in charge of the concerned portfolio has any personal bias against the operators of private buses or any of them
We therefore hold that it has not been established that the Minister in charge of the portfolio of transport bad personal bias against the operators of private buses and therefore disqualified himself from hearing the objections under Ch
IVA of the Act
5 The next contention is based upon the observations of this Court in Shrinivasa Reddy vs The State of Mysore 1
After elaborating on the scope of section 68C of the Act Wanchoo J observed at p 136 thus Therefore the scheme to be framed must be such as is capable of being carried out all at once and that is why the Undertaking has been given the power to frame a scheme for an area or route or even a portion thereof 
If the Undertaking at that stage has the power to carry it out piecemeal it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of section 68E Based on these observations it is contended that the State Government intended to frame only one scheme 1  658 for the entire district though it was not in a position to implement the scheme in the entire district at one and the same time but to circumvent the observations of this Court it had split up one scheme into seven schemes
The first respondent in its counter affidavit met this allegation in the following way Having regard to the resources of the Undertaking in men material and money each scheme has been so framed that it is capable of being carried out all at once and in full without breaking its integrity  The State Transport Undertaking will carry out each of the published schemes on a date fixed by the State Government for the implementation of each scheme
The Minister in his order also adverted to this aspect and observed  In this case seven different schemes have been framed
Each scheme is a separate and independent scheme by itself In terms of the notification each scheme after approval will come into force only from a date to be fixed by the Government
Though different dates may be fixed for each scheme each scheme will be implemented in its entirety
No piecemeal implementation of any one scheme will be done 
Indeed the order of the Minister fixed specific dates from which each of the schemes shall come into force
This Court did not lay down that there cannot be any phased programme in the nationalization of transport services in a State or in a district nor did it hold that there cannot be more than one scheme for a district or a part of a district
The observations of this Court in regard to the implementation of a scheme piecemeal were aimed at to prevent an abuse of power by discriminating against some operators and in favour of others in respect of a single scheme
In the present case seven schemes were framed not to circumvent the observations of this Court but only to avoid the vice inherent in piecemeal implementation
Not only seven separate schemes were framed in respect of separate areas of the district but also the Government made it clear that each scheme should be implemented in its entirety commencing from different dates
We do not therefore see any legitimate objection to the framing of seven separate schemes
659 Re
6 This contention questions the validity of the schemes on the ground that the Chief Executive Officer of the Andhra Pradesh Road Transport Corporation is not empowered to publish the schemes and therefore the schemes were not validly published
In exercise of the powers conferred by section 68C of the Act the Andhra Pradesh State Road Transport Corporation proposed the schemes and published them in the Andhra Pradesh Gazette Part 11 p 1310
The proposed schemes were signed by Guru Pershad Chief Executive Officer State Transport Undertaking Andhra Pradesh Road Transport Corporation The relevant provisions of the Act LXIV of 1950 may be noticed at this stage
Under section 4 of the said Act  Every Corporation shall be a body corporate by the name notified under section 3 having perpetual succession and a common seal and shall by the said name sue and be sued 
Relevant portions of section 12 read  A Corporation may from time to time by resolution passed at a meeting  authorize the Chief Executive Officer or General Manager or any other officer of the Corporation subject to such conditions and limitations if any as may be specified in the resolution to exercise such powers and perform such duties as it may deem necessary for the efficient day to day administration of its business
Section 13 says  All orders and decisions of a Corporation shall be authenticated by the signature of the Chairman or any other member authorized by the Corporation in this behalf and all other instruments issued by a Corporation shall be authenticated by the signature of the Chief Executive Officer or General Manager or any other officer of the Corporation authorized in like manner in this behalf
Relying upon the said provisions learned counsel for the petitioners contends that the preparation and publication of the schemes in question under section 68C of the Act are orders or decisions of the Corporation and therefore should be authenticated by the signature of the Chairman or any other member duly authorized under section 13 of the and not by the Chief Executive Officer
The first 660 respondent in its counter affidavit attempted to meet this contention by stating that the Corporation by resolution authorized the Chief Executive Officer to exercise such powers and perform such duties as it may deem necessary for the efficient day to day administration of its business and the Chief Executive Officer in exercise of such authorization published the schemes in the Gazette
The first respondent relied upon section 12 of the and not on section 13 thereof to sustain the power of the Chief Executive Officer to publish the schemes
We have no reason not to accept the statement of the first respondent that there was a resolution passed by the Corporation in terms of section 12 c of the 
If so the only question is whether the act of publishing the proposed schemes framed by the Corporation in the Gazette pertains to the day to day administration of the Corporation s business
The Chief Executive Officer has no power under the Act to frame a scheme
Section 68C empowers only the State Transport Undertaking to prepare a scheme and cause every such scheme to be published in the official Gazette and also in such other manner as the State Government may direct
The scheme therefore need not be directly published by the Corporation but it may cause it to be published in the official Gazette
The act of publishing in the official Gazette is a ministerial act
It does not involve any exercise of discretion
It is only a mechanical one to be carried out in the course of day to day administration
So understood there cannot be any difficulty in holding that it was purely a ministerial act which the Chief Executive Officer by reason of the aforesaid resolution can discharge under section 12c of the 
It must be presumed for the purpose of this case that the Corporation decided the terms of the proposed schemes and the said decision must have been duly authenticated by the Chairman or any other member authorized by the Corporation in this behalf and the Chief Executive Officer did nothing more than publish the said scheme in exercise of its administrative functions
We 661 therefore hold that the Chief Executive Officer was well within his rights in publishing the said proposed schemes in the Andhra Pradesh Gazette
7 The next argument turns upon the provisions of r 4 of the Andhra Pradesh Motor Vehicles Rules
The relevant part of the rule reads  The scheme or approved scheme to be published in the official Gazette as required under section 68C or 68D as the case may be shall contain the following particulars i  ii the number of vehicles proposed to be operated on each route 
In certain schemes the number of vehicles to be operated on each route was not specified and one number was mentioned against two or more routes bracketing them
When an objection was taken before the Government in regard to this matter the Minister accepted it and directed that the scheme might be modified so as to indicate the number of vehicles to be operated on each route separately
The schemes were accordingly  modified by indicating the number of vehicles to be operated on each route separately and the approved schemes with the said modification were duly published in the Gazette dated March 21 1960
The approved schemes therefore satisfy rule 42of the Rules for the approved schemes as duly modified contain the number of vehicles proposed to be operated on each route
But the point sought to be made is that the Minister himself should have fixed the number of vehicles proposed to be operated on each route and should not have merely directed the appropriate modification to be made in the approved schemes
It does not appear from the record that there was any dispute before the Minister as regards the apportionment of the number of vehicles shown against two or more routes to each of the routes but the only contention raised was that the bracketing of the number of vehicles between two or more routes contravened the provisions of r 4
Though the order of the Minister only contains a direction the apportionment of the vehicles between the routes was not made by the State Transport Authority but only by the Government for the approved schemes were published not by the Chief Executive Officer but 662 by the State Government
It must be presumed that the allocation also must have been made with the approval of the Minister
There are no merits in this objection either
8 The next contention is that r 5 framed by the State Government in exercise of the power conferred on it under section 681 is inconsistent with the provisions of section 68B of the Act and therefore is void
The schemes prepared by the State Transport Authority contain the following note  The frequency of services on any of the notified routes or within any notified area shall if necessary be varied having regard to the traffic needs during any period 
In deed the said note was practically a reproduction of a note appended to r 5
The only question is whether r 5 and the note made pursuant thereto come into conflict with section 68E of the Act
Section 68E reads  Any scheme published under sub section 3 of section 68D may at any time be cancelled or modified by the State transport undertaking and the procedure laid down in section 68C and section 68D shall so far as it can be made applicable be followed in every case where the scheme is proposed to be modified as if the modification proposed were a separate scheme
The short question that arises is whether the variation of frequency of service by the State Transport Undertaking amounts to a modification of a scheme within the meaning of section 68E of the Act
The rule is not so innocuous as the learned Advocate General of the Andhra Pradesh contends
Under that rule the State Transport Undertaking having regard to the needs of traffic during any period may increase or decrease the number of trips of the existing buses or vary the frequency by increasing or decreasing the number of buses
This can be done without any reference to the public or without hearing any repre sentations from them
This increase or decrease as the case may be Can only be for the purpose of providing an efficient adequate economical transport service in relation to a particular route within the meaning of section 68C
At the time the original schemes are proposed the persons affected by them may file 663 objections to the effect that the number of buses should be increased or decreased on a particular route from that proposed in the schemes
The Government may accept such suggestions and modify the schemes but under this rule the authority may without reference to the public or the Government modify the schemes
Learned counsel contends that the note only provides for an emergency
But the rule and the note are comprehensive enough to take in not only an emergency but also a modification of the scheme for any period which may extend to any length of time
We are therefore definitely of opinion that the rule confers power on the State Transport Undertaking to modify substantially the scheme in one respect though that power can only be exercised under section 68E of the Act in the manner prescribed thereunder
This rule is void and therefore the said note was illegally inserted in the schemes
But on that ground as the learned counsel contends we cannot hold that the schemes are void
The note is easily severable from the scheme without in any way affecting their structure
Without the note the schemes are self contained ones and it is impossible to hold that the schemes would not have been framed in the manner they were made if this note was not allowed to be included therein
We therefore hold that the note should be deleted from the schemes and the schemes are otherwise good
9 The last of the arguments attacks the schemes in so far as they include new routes
The new routes included in the schemes are Eluru to Kovvur and Nidadavol to Jeelugumilli
It is argued that the provisions of section 68C are concerned with the existing routes only
Support is sought to be drawn for this contention from the provisions of section 68C of the Act
The relevant part of that section says  Where any State transport undertaking is of opinion that  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 85 664 transport undertaking  the State transport undertaking may propose a scheme  
Now the contention is that the word  route  in that section refers to a preexisting route for it is said that the words  route or portion thereof  in the section clearly indicate that the route is an existing route for a scheme cannot be framed in respect of a portion of a proposed route
We do not see any force in this contention
Under section 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route
There is no inherent inconsistency between an  area  and a  route 
The proposed route is also an area limited to the route proposed
The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of section 68C We therefore hold that section 68C certainly empowers the State Transport Undertaking to propose a scheme to include new routes
Though some other points were raised in the affidavits filed before us they were not pressed
In the result we hold that the note relating to the frequency of the services appended to the schemes must be deleted and that in other respects the petitions fail and accordingly they are dismissed with costs
One set of hearing fees
Petitions dismissed


Summary:
The petitioner was Second in Command of 1
N section Mysore which came to Bombay in the beginning of March 1959
Soon thereafter he was arrested on a charge of murder under section 302 of the Indian Penal Code and was placed and continued to remain in naval custody all along during his trial
In due course he was placed on trial by a jury before the Sessions Judge Greater Bombay in which the jury returned a verdict of not guilty by a majority but the Sessions judge disagreeing with the verdict of the jury made a reference to the High Court which convicted the petitioner under section 302 of the Indian Penal Code and sentenced him to imprisonment for life
On the same day when the High Court pronounced its judgment the Governor of Bombay passed an order under article 161 of the Constitution of India suspending the sentence passed by the High Court of Bombay on the petitioner until the appeal intended to be filed by him in the Supreme Court against his conviction and sentence was disposed of and subject meanwhile to the condition that he shall be detained in the Naval Jail custody
A warrant for the arrest of the petitioner which was issued in pursuance of the judgment of the High Court was returned unserved with the report that it could not be served in view of the order of the Governor suspending the sentence passed upon the petitioner
In course of the hearing of an application for leave to appeal to the Supreme Court filed by the petitioner in the High Court the matter of the unexecuted warrant was placed before it and a Special Bench of the High Court after examining the validity of the action taken by the Governor came to the conclusion that the order passed by the Governor was not invalid that the order for detention of the petitioner in naval custody was not unconstitutional and that the sentence passed on the petitioner having been suspended the provisions of 0
XXI r 5 of the Supreme Court Rules did not apply and it was not necessary for the petitioner to surrender to his sentence
Thereafter the petitioner filed an application for special leave in the Supreme Court and also another application praying for exemption from compliance with the aforesaid rule and 498 for the hearing of his application for special leave without surrendering to his sentence
His plea at first was that as he was not a free man it was not possible for him to comply with the requirements of 0
XXI r 5 of the Supreme Court Rules but he subsequently amended it to the effect that the aforesaid Rule did not apply to his case in view of the Governor s order
On a reference of this matter by a Division Bench of this Court to the Constitution Bench for hearing Held that the Governor had no power to grant the suspension of sentence for the period during which the matter was sub judice in this Court
The Governor s order suspending the sentence could only operate until the matter became sub judice in this Court on the filing of the petition for special leave to appeal whereupon this Court being in seisin of the matter would consider whether 0
XXI r 5 should be applied or the petitioner should be exempted from the operation thereof as prayed for
It would then be for this Court to pass such orders as it thought fit as to whether bail should be granted to the petitioner or he should surrender to his sentence or to pass such other order as the court deemed fit in the circumstances of the case
On the principle of harmonious construction and to avoid a possible conflict between the powers given under article 161 to the Governor and under article 142 to the Supreme Court both of which are absolute and unfettered in their respective fields of operation it must be held that
article 161does not deal with the suspension of sentence during the time that article 142 is in operation and the matter is sub judice in the Supreme Court
Per KAPUR J dissenting The language of article 161 is of the widest amplitude
It is plenary and an act of grace and clemency and may be termed as benign prerogative of mercy The power of pardon is absolute and exercisable at any time
Rules framed under article 145 are subordinate legislation and cannot override the provisions of article 161 of the Constitution itself
While the Governor s power to grant pardon is a power specially conferred upon him as was vested in the British Governor in British days the power given to the Court under article 1421 is a general power exercisable for doing complete justice in any cause or matter and if they deal with the same matter then article 161 must prevail over article 1421
The two powers may have the same effect but they operate in distinct fields on different principles taking wholly irreconcilable factors into consideration
The action taken by the executive being the exercise of overriding power is not subject to judicial review
It could not have been the intention of the framers of the Constitution that the amplitude of executive power should be restricted as to become suspended for the period of pendency of an appeal in the Supreme Court