ivil Appeal No 3362 of 1979
From the Judgment and Order dated 3101977 of the Andhra Pradesh High Court in Writ Petition No 3348 of 1975
AS Nambiar and B Parthasarthy for the Appellants
TV SN Chari and G Narasimhulu for the Respondents
The Judgment of the Court was delivered by K RAMASWAMYJ
This appeal by special leave arises against the judgment of the Division Bench of the Andhra Pradesh High Court dated October 3 1977 in Writ Petition No 334375
The Govt
in exercise of power under section 68 D in Chapter IVA of the approved a draft scheme framed under section 68 C through GOMS No 753 Home Transport Dept
dated June 1975 Published in the gazette on June 4 1975 relating to the route Anantapur to Dharmavaram via Mamillappalli
The Scheme No 82 of 1974 was questioned in Writ Petition No 382775 and the same was upheld by a single Judge on September 30
1975 and on appeal in Writ Appeal No 80 of 1975 dated November 14 1975 the Division Bench upheld the same
While approving the scheme the routes namely  1 Kodikonda to Anantapur via Dharmavaram 2 Bukkapatnam to Anantapur via Dharmavaram 3 Interstate route Virechal to Dharmavaram via Anantapur 4 Anantapur to Puttaparti via Dharmavaram to the extent indicated in the note thereunder were exempted from the scheme
Thereby the partial exemption of these routes from the approved scheme stood upheld
Thereafter the two respondents filed the writ petition challenging the self same scheme contending that the non exemption of the routes ie Kalyandrug to Pernapalli via Dharamavaram and Anantapur to Perur via Dharmavaram offend Act 14 of the Constitution
The High Court upheld the contention and held that their exclusion is discriminatory
Accordingly the High Court directed that the case worth 833 consideration in the case of exempted routes
The Govt
was directed to consider their case and to pass appropriate orders to accord exemption from the scheme
Questioning the correctness of the judgment this appeal has been filed
Under section 68 C where the State Transport Undertaking is of the 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 the 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 service 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
The draft scheme accordingly was prepared on the above routes and was published
Objections had been filed
In exercise of the power under sub section 2 of section 68 D the State Govt
after considering the objections and giving opportunity to the objectors and the representatives and also of the State Transport Undertaking approved the scheme and excluded the aforesaid four routes
AS stated earlier the scheme was upheld by the High Court and became final
The question emerges whether the non exclusion of two transport operators the respondents herein offends Act 14
The contention of Sri Narsamhulu the learned counsel for the operators is that the State Govt
having exempted four routes from the scheme the respondents too are entitled to parity of treatment and the denial offends their right to equality guaranteed under Art14 of the Constitution
We find difficult to give our acceptance to this contention
It is true as disclosed in the counter affidavit filed by the State Govt
in the writ petition before the High Court that inadequate transport facilities prevailing on those four routes and density of the population that need transport service by the private operators induced the Govt
to give exemption and that the respondents also may be situated in the similar circumstances
But by the very language of s68 C whose constitutional validity can no longer be questioned and was not in fact questioned gives 834 power to the STU to exclude the private operators completely or partially from an area or route or part thereof in the draft scheme and given exclusive power to offer transport service in that area or route or part thereof
On approval the scheme has the effect of excluding the private operators from the field
The statute itself gives power to the State to exercise discretion for formulating a scheme for an area or route or part thereof and necessarily has the effect of excluding the existing or potential private operators from the field to render transport service in that partially prohibited area etc
while retaining similar private operators in other area route or part thereof
The exclusion completely or partially is allowable under the statute itself and is writ large
The discretion need not necessarily be discriminatory
68 C left the choice to the STU and so discrimination in that sense is discernible from section 68C which itself authorises the STU based on factual matrix eliminate in its choice of a partial exclusion of private operators in an area or route or part thereof
Opportunity has been given to an affected party to file his or their objections and of a right of hearing before the State Govt
approved of the draft scheme and publication thereof in the gazette
The exercise of discretion by the STU in its selective application of partial prohibition is controlled and regulated by the statute in Ss
68D and 68E of the Act
In Ram Nath Verma vs State of Rajasthan  at 160 one of the contentions raised was that out of five routes which were partially overlapping three routes have been taken over
Permits of the existing objectors has been cancelled with respect to the overlapping part of the routes while in other two routes the objectors were allowed to ply even on the overlapping part but they had been forbidden to pick up passengers on the overlapping part for a destination within the overlapping part
This latter method was adopted to make the permits ineffective for the overlapping part
The contention of the aggrieved persons was that they were discriminated
This Court held thus We are of the opinion that there is no force in it
Under s68C it is open to frame a scheme in which there is a partial exclusion of private operators
Making the permits ineffective for the overlapping part only amounts to partial exclusion of the private operators from that route
In the circumstances an order making the permit ineffective for the overlapping part would be justified under section 68C
Giving primacy to the contention of violation of article 14 would be fraught with insidious effects of upsetting the very scheme itself since anyone of the existing or potential 835 operators would always contend that he too is similarly situated with that of the exempted operators of other area route or part thereof and unequal treatment has been meted out in the grant of permit to offer transport service offending his right under article 14
It is true that sub s2 of s68E as stated by Shri Narsamhulu that despite the approval of the scheme under sub s2 of section 68 D the State Govt
may at any time if it considers necessary in the public interest so to do modify any scheme published under section 3 of section 68 D of the Act after following the procedure prescribed therein
The exercise of that power would be de hors the approval granted under subs2 of section 68 D of the Act and published under sub s3 of section 68 D
The conditions precedent therein are the Govt
must objectively come to a finding that there exists necessity in public interest and that the approved scheme needs modification and that the Govt
considers that such necessity to be imperative to modify the scheme
The Govt
thereafter should follow the procedure prescribed under sub section 2 of section 68 E as if it is a new scheme and pass appropriate orders in that regard
That too it would be only either on the initiative of the STU or on an application or representations by the general public of the necessity in public interest to modify the scheme approved under sub section 2 of section 68 D of that Act
It is not at the behest of the erstwhile holders of the permit who have been completely or partially frozen to obtain permit afresh or intending fresh applications in this behalf
It is now settled law that even on a partial overlapping approved scheme private operators have been totally prohibited to have corridor shelters and could no longer enter into the frozen area route or part thereof and obtain permit to render transport service to the travelling public
When that be so the partial exclusion does not offend article 14 of the Constitution
In fact the respondents did not question the validity of the scheme
Thus considered the approach and the reasoning of the High Court are clearly illegal
Accordingly the appeal is allowed and the judgment of the High Court is set aside
The writ petition stands dismissed
Rule nisi discharged
But in the circumstances the parties are left to bear their own costs
TNA Appeal allowed


Summary:
In 1909 for the purpose of residential accommodation plots of land were given on lease by the Government to the appellants and others for which a premium of Rs 350 and an annual rent of Rs 3 8 0 for each plot had to be paid
Clause III of the deed of lease in each case provided  And the lessor does further covenant that lie will at the end of the term Of 30 years hereby granted and so on from time to time thereafter at the end of each successive further term of years as shall be granted at the request of the lessee execute to him a renewed lease of the land hereby demised for the term Of 30 years Provided that the rent of the land hereby demised shall be subject to such fair and equitable enhancement as the lessor shall determine on the grant of every renewal Provided also that every such renewed lease of the land shall contain such of the covenants provisions and conditions in these presents contained as shall be applicable and shall always contain a covenant for further renewal of the lease 181 By the year 1939 the first 30 years  period of some of the leases came to an end and the Government sought to enhance the annual rent from Rs 3 8 0 to Rs 21 14 0 per plot and also to insert some new terms in the renewed deeds of lease
The appellants brought a suit inter alia for a declaration that the enhancement proposed was not fair and equitable within the meaning of Clause III of the deed of lease that the fair and equitable rent should be Rs 7 per plot and that if the court was of the opinion that Rs 7 was not a fair and equitable rent then it should fix such sum as it considered fair and equitable
The respondent pleaded that such a suit was incompetent
The question was whether the civil court had jurisdiction to enquire whether the enhancement of the rent determined by the lessor was fair and equitable within the meaning of cl
III of the deed of lease and whether in any case the lease was void for un certainty
Held per jafer Imam and section K Das jj that the lease is not void for uncertainty that the expression  fair and equitable  in the clause in question means fair and equitable in fact and not what the lessor subjectively considered to be fair and equitable and that reading the clause as a whole and giving effect to all the words used therein the meaning is that the lessor must first determine what it considers to be fair and equitable enhancement but if in fact it is not so it is open to the lessee to ask the court to determine what is fair and equitable enhancement
Accordingly the suit was maintainable
The rule laid down in Gourlay vs The Duke of Somerset 18I5    held applicable
The New Beerbhom Coal Company Limited V Boloram Mahata and others 1880 LR 7 IA 107 and Secretary of State for India in Council vs Volkart Brothers Mad
595 relied on
Collier vs Mason   and Tekchand Kapurchand vs Mt Birzabai AIR 1942 Nag 119 distinguished
Per Kapur J The correct interpretation to be put on cl
III of the deed of lease is that the lessor was given the authority to determine the enhancement of rent but such enhancement was to be fair and equitable and what would be fair and equitable in any particular case was also to be determined by the lessor
The rule applicable to the present case is that relating to valuation or fixation of prices that where the valuation is fixed by a valuer the court will hold it conclusive in the absence of fraud or mistake or misconduct and the court will not enter into the propriety of the valuation made or substitute its own valuation in place of that determined by the valuer because that will not be an execution of the contract of the parties but making a contract for them
Case law discussed