Civil Appeal No 32561
Appeal from the judgment and decree dated March 6
1961 of the Allahabad High Court in Writ No 3116 of 1960
WITH Petitions Nos 180 181 and 205 of 1961
Petitions Under article 32 of the Constitution of India for enforcement of Fundamental Rights
section N Kacker and J P Goyal for the appellant In CA No 32561 and the petitioner In Petn
No 20561
HN Sanyal Additional Solicitor General of India KL Misra Advocate General U P H N Seth J K Srivastva and C P Lal for the respondents in CA No 32561 and Petn
No 205 of 1961
J P Goyal for the petitioners In petitions Nos 180 and 181 of 1961
C P Lal for the respondents In Petitions Nos 180 and 181 of 1961
December II
The Judgment of the Court was delivered by SHAH J
The appeal and the writ petitions practically raise the same points and may be 78 disposed of together
At the outset we shall briefly state the facts relevant to each of the said proceedings
The appellant in Civil Appeal No 325 of 1961 held a permit for plying stage carriage on the Kanpur Bela Bidhuna route via Chaubepur in the State of Uttar Pradesh
The entire route is 68 miles long and a part of the route 16 miles in length ie Kanpur to Chaubepur is a notified route
This part was common between the said route and the Kanpur Chaubepur Sarai Miran route which was a nationalised route
A condition was therefore attached to the appellant s permit that he would not be entitled to pick up passengers or drop them between Kanpur and Chaubepur
His permit was to expire on June 10 1960
Before the said date he applied for renewal of his permit and on May 20 1960 it was published in the UP Govt
Gazette calling for objections
On the same day the State Government published a notification in the Gazette proposing to nationalise the said route
As the application for renewal could not be disposed of before the expiry of the period fixed in the permit a temporary permit for the route was granted to the appellant
On July 19 1960 the application for renewal of the appellant s permit was considered by the Regional Transport Authority Kanpur and his permit was renewed for three years with effect from July 23 1966 only in respect of a part of the old route namely Chaubepur Bela Bidhuna but under the directions of the Transport Commissioner the Regional Transport Authority made an endorsement on the renewed permit authorizing the appellant to ply his vehicle between Kanpur and Chaubepur for a period of four months commencing from July 23 1960
As regards the proposed scheme of nationalization on June 22 1960 the appellant filed his objections thereto
The said objections were heard by the Joint Secretary Judicial 79 Department who approved the scheme with some modifications
The approved scheme was published in the Gazette on October 8 1960
Under the notification the scheme was to be put into operation from October 5 1960 or thereafter
On November 12 1960 a notification dated November 4 1960 was published in the Gazette under section 68F of the cancelling the appellant s renewed permit with effect from November 27 1960
Under the nationalization scheme the stage carriages belonging to the State Transport Undertaking could ply on the said route without obtaining permits
The appellant filed a petition under Art 226 of the Constitution in the High Court of Judicature at Allahabad praying for the following reliefs a That a writ in the nature of mandamus may issue to command the respondents not to interfere with the Petitioner s right to ply on Kanpur Bela Bidhuna Via Chaubepur route under the permit duly renewed in his favour till the entire duration of the permit viz till July 22 1963
b That a Writ in the nature of certiorari may issue to quash so much of the Resolution dated July 19 1960 passed by the Regional Transport Authority Kanpur as directs imposition of illegal conditions to the renewed permit of the petitioner
c That a Writ in the nature of mandamus may issue to command respondents No 2 and 3 not to give effect to the illegal endorsements made on the petitioner s permit on July 23 1960 and to treat the petitioner s permit as having been renewed without the illegal conditions attached thereto by the two endorsements dated July 23 1960 reproduced in paragraph 15 of the affidavit
80 d That a Writ in the nature of certiorari may issue to quash the notifications dated May 18 1960 under section 68C of the Act so also the subsequent notifications under section 68D2 of the Act dated September 26 1960 and the notification dated November 4 1960 under section 68F 2 of the Act in regard to Kanpur Bela Bidhuna route
e That a Writ in the nature of mandamus may issue directing the respondents Nos 1 to 3 not to give effect to the notifications dated May 18 1960 September 26 1960 and November 4 1960 in regard to Kanpur Bela Bidhuna route
f That an interim direction may issue to the respondents Nos 2 and 3 not to interfere with the Petitioner s right to ply on the entire Kanpur Bela Bidhuna route under the renewed permit irrespective of the illegal conditions attached thereto or of the illegal scheme for the nationalization of the said route
g That costs of this petition may be awarded to the Petitioners as against the opposite parties
On December 2 1960 the High Court made an interim order directing the State of Uttar Pradesh not to interfere with the petitioner operating his vehicle on Kanpur Bela Bidhuna route in accordance with the terms of his permit
To that writ petition the State of Uttar Pradesh the Regional Transport Authority and the Secretary to Regional Transport Authority were made respondents
The respondents opposed the petition
On March 6 1961 a Division Bench of the High Court accepting the contentions raised by the respondents dismissed the petition
Hence the appeal
81 Writ Petition No 205 of 1961 is filed in this Court by another operator under article 32 of the Constitution
He was plying his stage carriage on the Jaunpur Shahganj route in Uttar Pradesh under Permit No 430 which was valid upto March 15 The State Government published in the Gazette dated July 23 1960 a notification dated July 15 1960 under section 68C of the Act proposing to nationalize the said route along with another route
The petitioner and others filed objections against the scheme within the time prescribed
The objections were heard by the Joint Secretary Judicial Department who approved the scheme
The approved scheme was published in the U P Official Gazette dated February 25 1961
Thereafter the Secretary to the Regional Transport Authority Allahabad issued a notification dated July 29 1961 wherein it was stated that the permits of the operators on the said routes including that of the petitioner would stand cancelled and that the notification would come into force upon the expiry of 15 days from the date of publication of the said notification
The petitioner has filed the present writ petition asking for the following reliefs a A writ in the nature of certiorari quashing the notification Annexures A B and C to this writ petition
b A writ in the nature of mandamus directing the respondents not to give effect to the notifications
c A writ in the nature of mandamus commanding the respondents not to interfere with the rights of the petitioner to ply his stage carriage on the aforesaid route Jaunpur Shahganj route due to the aforesaid scheme
d Award the costs of this petition to the petitioner
82 Writ Petitions Nos
180 and 181 of 1961 relate to the route Robertasgunj Dudhi Mamhani
The State Government issued a notification dated July 13 1960 proposing to nationalize the said route and published the same in the Gazette on July 23 1960
The petitioners filed objections against the scheme and the said objections were heard by the Joint Secretary Judicial Department and the scheme was finally approved by him
The approved scheme was notified in the Gazette on May 20 1961
Under the said notification the State Transport Undertaking would commence to operate its stage carriage service on the said route from July 15 1961 or thereabout
Aggrieved by the said scheme the petitioners filed the said petition for writs in this Court for reliefs similar to those in the other petition
Mr Kacker learned counsel for the petitioner in Writ Petition No 205 of 1961 raised the following points 1 Under section 68C of the  the State Transport Undertaking has to form its opinion and prepare a scheme for nationalisation and publish it in the manner prescribed thereunder but in the present cases the State Government initiated the schemes and therefore the schemes were not validly made 2 As neither the objection to the proposed scheme were heard nor were they approved by the State Government as they should be under section 68D of the  the schemes were invalid 3 The Regional Transport Authority acted illegally in curtailing the period of renewal this question arises only in the appeal 4 The Regional Transport Authority had not applied its mind in dealing with the renewal application but mechanically followed the provisions in the proposed schemes and therefore its order was bad 5 Even after the approval of the nationalisation schemes the State owned buses were required to apply for and get permits under the Act and plying of buses 83 by the State without permits was illegal and 6 The Secretary to the Regional Transport Authority had no jurisdiction to issue an order under section 68F 2 of the  since under the said section only the Regional Transport Authority had the power to do so this question arises only in Writ Petition No 205 of 1961
To appreciate the first argument it is necessary to notice briefly the relevant provisions of Ch
IVA of the IV of 1939 hereinafter called the Act
Section 68Ab defines State transport undertaking to mean any undertaking providing road transport service where such undertaking is carried on by i the Central Government or a State Government
Section 68C reads 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 giving particulars of the nature of the services proposed to be rendered the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct
Section 68D reads 1 Any person affected by the scheme published under section 68C may within 84 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 Section 68E provides for the cancellation or modification of the scheme by the State transport undertaking and in that event the same procedure prescribed for framing a scheme is to be followed
The effect of the said provisions in so far as they are relevant to the present inquiry may be stated thus The State transport undertaking is an undertaking providing road transport service which is carried on by the State or any other corporation or authority mentioned in section 68A
The definition creates a statutory authority distinct from authorities which run it
This is made clear by section 68C whereunder it is the State transport undertaking that will have to form the requisite opinion
This is further elucidated by the fact that under section 68C of the Act the state transport undertaking is required to publish the proposed scheme in the Official Gazette and also in such other manner as the State Government may direct
This distinction between the two entities is further made clear by section 68D2 whereunder the State Government has to hear the representatives of the State Transport undertaking
Briefly stated under the said provisions a statutory authority called the State transport undertaking is created it is authorised to initiate a scheme of nationlisation of road transport the aggrieved parties are given opportunity to file objections thereto and 85 the State Government is empowered to hear both the parties and approve or modify the scheme as the case may be
Counsel for the appellant contends that the underlying scheme of the Act cannot be worked out unless a clear distinction is maintained between the State transport undertaking and the State Government for if one is equated with the other the State Government would become a judge of its own cause and that therefore it was incumbent upon the Government to form a separate and distinct authority to enable it to initiate a scheme in accordance with law
Counsel for the State contends that a transport undertaking run by a State Government is a State transport undertaking and therefore the scheme initiated by the State Government which runs the State undertaking is a scheme initiated by the said undertaking
It is true that the provisions maintain a distinction between a State transport undertaking and the State Government
It is also true that the State Government has to hear the objections of the aggrieved parties and also the representatives of the State transport undertaking before approving or modifying the scheme indicating thereby that the State Government has to decide the dispute that may arise between the two contestants
Though the functions of the different bodies are clearly demarcated in the case of undertakings run by corporations there is overlapping in the case of an undertaking run by a State Government
This may lead to anomalous position but in practice it can be avoided if the State Government creates a department to be in charge of the undertaking and hears the objections and approves or modifies the scheme in a manner without violating the principles of natural justice
86 A State transport undertaking means inter alia an undertaking run by a State
The statutory authority created is an undertaking run by a State
The State can only run an undertaking through its officers it may entrust the conduct of the transport service to a particular officer or to a department of the State in either event it is the State Government that runs the undertaking
The statutory authority namely the State transport undertaking has to form an opinion within the meaning of section 68C of the Act and the opinion must necessarily be that of the State Government which runs it
If the State Government running an undertaking forms an opinion it can legitimately be said that the statutory authority i e the State transport undertaking has formed the opinion
In Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation 1 before the State of Andhra was formed in November 1956 the Motor Vehicles Hyderabad Amendment Act 1956 was in force in Telengana area
Under the said Act the State transport undertaking was defined to mean the road transport department of the State providing road service
After the Andhra Pradesh State was formed that department initiated the scheme and this Court held that the said department clearly fell within the definition of state transport undertaking
This Court observed in that case The State Government maintained the department for providing road transport service and therefore the department clearly falls within the definition of State Transport Undertaking
 If a state directly runs an undertaking it can only be through a department
In law there cannot be any difference between an undertaking run by a department of a State Government and that run 87 by the State Government
In either undertaking is run by the State and that undertaking is a State transport undertaking within the meaning of section 68C of the Act
The opinion must necessarily be formed by somebody to whom under the rules of business the conduct of the business is entrusted and that opinion in law will be the opinion of the State Government
It is stated in the counter affidavit that all the concerned officials in the Department of Transport considered the draft scheme and the said scheme was finally approved by the Secretary of the Transport Department before the notification was issued
It is not denied that the Secretary of the said Department has power under the rules of business to act for the State Government in that behalf
We therefore hold that in the present case the opinion was formed by the State transport undertaking within the meaning of section 68C of the Act and that there was nothing illegal in the manner of initiation of the said scheme
The second ground urged by counsel for the appellant that the scheme was invalid because the objections to the scheme were heard and the scheme was approved by the Joint Secretary Judicial Department who was not lawfully invested with authority in that behalf is for reasons to be presently stated not open to the appellant
By the first sub section of section 68D which we have already set out persons affected by a transport scheme are entitled to file objections thereto
By sub section 2 the State Government is authorised to approve or modify the scheme after considering the objections if any and after giving an opportunity of being heard in the matter to the objector or his representatives and the representatives of the State transport undertaking
Sub section 3 provides for the publication of the 88 approved or modified scheme in the Official Gazette by the State Government and on such publication the scheme becomes final
It must at once be observed that neither in the petition under article 226 of the Constitution to the High Court out of which Civil Appeal No 325 of 1961 arises nor in the Writ Petition under article 32 No 205 of 1961 presented to this Court was the plea raised that the Joint Secretary to the Judicial Department was not authorised to hear the objection and to approve the scheme
In the petition No 205 of 1961 under article 32 of the Constitution it was averred by the petitioner in para 10 that the petitioner filed objections under section 68D1 of the Act against the scheme of the State Government and it also heard its own representatives in opposition to the petition and again it was averred in the same paragraph at the time of hearing of the petitioner s objections under section 68 D Before the State Government it was argued on behalf of the petitioner that the aforesaid scheme was bad  In the petition under article 226 of the Constitution it was averred in paragraph 25 That no State Transport Undertaking having been constituted the State Government initiated the scheme and heard its own representatives on 1381960
The petitioner has bonafide belief that the Joint Secretary to the Government of Uttar Pradesh Judicial Department who heard the objections acted with bias against the petitioner
 Even in the petition for special leave to appeal to this Court no such objection was raised
There is also no reference to any such contention in the judgment of the High Court
The validity of the scheme on this ground is sought to be raised for the first time in this Court and according to the settled practice of this Court the appellant except in exceptional circumstances and there are none such in this case is not entitled to raise this argument for the first time at the hearing in this Court
It was urged in the course of the 89 argument that by Rule 7 of the State Land Transport Services Development Rules 1958 which at the material time read as follows 1 The objections received shall be considered by the judicial Secretary to Government of UP or an officer of his department not below the rank of Joint Secretary nominated by the former for the purpose
x x x x x x x x x x 5 After hearing of such parties as appear the officer shall give a decision whether the scheme be approved or modified as he may deem proper no authority was lawfully conferred upon the Joint Secretary and the proceedings of the Joint Secretary in purported exercise of powers under section 68D 2 were without jurisdiction
But this is another facet of the same argument and it is clear from a perusal of the petitions before the High Court and this Court and the judgment of the High Court that it was never raised
There is no doubt that the scheme has been duly published under section 68D3 and if the objection to the invalidity of the scheme on the ground that the objection were not heard by an authority competent in that behalf cannot be permitted to be raised in this Court for the first time during the course of the arguments the statutory consequences prescribed by section 68F must ensue
It is necessary to bear certain facts and considerations in mind in dealing with the remaining contentions
By the scheme cl 7 the permit of the appellant was cancelled
The scheme as approved was published in the UP Gazette on October 8 1960 and was to come into operation on October 15 1960 or thereafter
A notification was published on November 4 1960 under section 68F2 90 of the Act cancelling the appellant s permit with effect from November 27 1960
The appellant therefore ceased to have any right to ply his vehicles on the route and he had no right to object to the vehicles of the State transport undertaking plying on that route
If the scheme was validly promulgated and became final within the meaning of section 68D3 it had the effect of extinguishing all rights of the appellant to ply his vehicles under his permit
After cancellation of his permit he could not maintain a petition for writ under article 226 because a right to maintain such a petition postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is personally interested
It is true that the appellant did at the date of the petition filed in the High Court hold a permit which was to enure till the 27th November 1960
But if the permit was validly terminated from the date specified he will not be entitled to relief even if he had on the date of the petition a subsisting right
Ground No 2 must therefore fail
Grounds 3 and 4 of the appellant that the Regional Transport Authority acted illegally in curtailing the period of renewal and that in any event it did not apply its mind in dealing with the renewal application but mechanically followed the provisions of the scheme may now be considered
The Regional Transport Authority was by the terms of the scheme left no discretion in the matter
It was by the scheme that the right of the appellant was restricted and if the scheme became final and binding the Regional Transport Authority had no authority to permit the appellant to ply his vehicles
The order passed by the Regional Transport Authority was purely consequential on the scheme and if the scheme is not open to challenge orders consequential thereon will not 91 also be open to challenge
We are supported in this view by the observations of this Court in Abdul Gafoor Proprietor Shaheen Motor Service vs The State of Mysore 1 that It appears to us that when deciding what action to take under section 68F1 the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the schemes
The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme
The duty is therefore merely mechanical and it will be incorrect to say that there is in these matters any lie between the existing operators and the State Transport Authority
There is no justification therefore for saying that when taking action under section 68F2 is really independent of the issue of the permits under section 68F1
Once the scheme has been approved action under section 68F1 flows from it and at the same time action under section 68F2 flows from the same scheme
We are bound by the decision
We are not called upon to consider whether the State owned buses are being validly plied without obtaining permits under section 68F1 of the Act
If the right of the appellant to ply his buses is lawfully extinguished he is not entitled to maintain an appeal challenging the right of the State Transport undertaking to ply their buses with or without permits
Nor is any fundamental right of the appellant infringed by the State Transport undertaking plying its buses without permits and a petition under article 32 of the Constitution cannot be maintained unless a fundamental right of the applicant is infringed
92 Nor is there any substance in the last contention
The orders passed under
sections 68F2a and b flow from the publication of the scheme duly approved and the issue of an order which is not quasi judicial but administrative by the Secretary on behalf of the Regional Transport Authority is not open to challenge
It is not the case of the Petitioner in W P 20961 in which alone this contention is raised that the order unauthorised
what is contended above this contention is raised that the order is being quasi judicial power to make it cannot be delegated
But for reasons already set out the order is not quasi judicial it is purely administrative
In our view therefore the appeal and the petitions must fail and are dismissed with costs


Summary:
The appellant whose permit for plying stage carriage was shortly to expire applied for its renewal
The renewal application was published in the Gazette calling for objections
The State Government published a notification proposing to nationalise the route
The permit was renewed for three years for a part of the route but an endorsement was made thereon authorising the appellant to ply on the remaining part of the route for four months
The appellants filed objections to the proposed scheme for nationalisation
The objections were heard by the Joint Secretary Judicial Department who approved the scheme with certain modifications
The scheme was published in the Gazette
Thereafter a notification was issued under section 68F of the cancelling the appellant s renewed permit
Under the Scheme the stage carriages of the State Transport Undertaking could ply on the route without obtaining permits
The appellant challenged the validity of the scheme and the cancellation of his licence
 Held that the scheme was valid and the appellant s licence was properly cancelled
Section 68C of the required the scheme to be initiated by the State Transport Undertaking
Even though the scheme in the present case was actually initiated by the State Government there was no non compliance with the provisions of section 68C
There was no difference between an undertaking run by a department of the State Government and that run by the State Government
In either case the undertaking was run by the State and it was a State transport undertaking within the meaning of section 68C Initiation of the scheme by the State Government running an undertaking was initiation by the statutory authority ie the State Transport undertaking
The appellant could not be allowed to challenge the validity of the scheme on the ground that the Joint Secretary was not lawfully invested with the authority to hear objections and to approve the scheme as the point was not raised at the proper stage
77 Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation 1959 Supp 1 SCR 319 applied
The scheme having been validly promulgated and having become final under section 68D3 it had the effect of extinguishing all rights of the appellant to ply his stage carriage under his permit and he could not maintain a petition under article 226 of the Constitution
The order passed by the Regional Transport Authority cancelling the appellant s permit was purely consequential on the scheme and could not be challenged if the scheme was valid
Once the right of the appellant to ply his stage carriage was validly extinguished he could not question the right of the State transport authority to ply their stage carriages with or without permits
Abdul Gafoor Proprietor Shaheen Motor Service vs State of Mysore   applied