s Nos 117 and 137 of 1961
Petition under Art 32 of the Constitution of India for enforcement of Fundamental Rights
L K Jha and R Patnaik for the petitioner in Petn
No 117 of 1961
C B Agarwala and R Patnaik for the petitioner in Petn
No 137 of 1961
A V Viswanatha Sastri B R L Iyengar and T M Sen for the respondents
683 1961
November 28
The Judgment of the Court was delivered by WANCHOO J
These two petitions challenge the validity of a scheme of road transport service approved by the Government of Orissa under section 68D 2 of the  No IV of 1939 hereinafter called the Act
A large number of grounds have been raised in the petitions but we are now concerned with only six points urged on behalf of the petitioners and we shall deal with only those points
No arguments were addressed on the other points raised in the petitions and it is therefore not necessary to set them out
The six points which have been raised before us are these 1
No hearing was given to the petitioner in petition No 117 as required by section 68D 2 and the Rules framed under Chap
IV A 2
The minister who heard the objections under section 68D 2 was biased and therefore the approval given to the scheme is invalid
The order of the Regional Transport Authority dated December 17 1960 rendering the permits of the petitioners ineffective from April 1 1961 is illegal inasmuch as section 68 F and r 10 framed under Chap
IV A were violated
The State Transport Undertaking did not apply for permits six weeks before April 1 1961 as required by section 57 2 of the Act and therefore the issue of permits to the State Transport Undertaking was bad
The final scheme did not mention the date from which it was to come into operation as required by r 3 vi of the Orissa Rules and was therefore bad
The Transport Controller who published the scheme had no authority to do so
684 We propose to take these points one by one
Re 1
The contention of the petitioner is that the minister heard the objections on September 21 1960 and passed his orders approving the scheme on September 22 1960
The notice however issued to the petitioner of the date of hearing was received by him on September 23 1960 and as such as there was no opportunity for the petitioner to get a hearing before the minister and consequently the scheme which was approved in violation of section 68D 2 and r 8 was invalid
It appears that the draft scheme was published on July 29 1960
Objections were invited from the operators and members of the public thereto
The petitioner filed his objection on August 24 1960
The date which was originally fixed for hearing of objections was September 16 1960 and it is not disputed that the notice of that date was given to all objectors as required by section 68D2 and the Rules
The petitioner however did not appear on September 16 1960 which was the first date of hearing
Many other objectors appeared on that date and prayed for time
Consequently the hearing was adjourned to September 21
As however the petitioner was absent a fresh notice was sent to him as a matter of abundant caution
That notice could not be delivered to him before September 21 1960 as he was absent from his address and he was actually served on September 23 1960 The petitioner s complaint therefore is that as he was not served with notice about the hearing on September 21 1960 there was no compliance with section 68D 2 and the Rules framed in that connection under Chap
On these facts we are of opinion that there is no force in the contention raised on behalf of the petitioner
What r 8 of the Orissa Rules requires is that ten days  clear notice has to be given of the time place and date of hearing to all 685 objectors
This was undoubtedly done for the date originally fixed for hearing was September 16 1960
Thereafter the hearing was postponed to September 21 at the instance of the objectors
It was in our opinion not necessary to give a fresh notice giving ten clear days as required by r 8 for this adjourned date
Rule 8 only applies to the first date to be fixed for hearing
Thereafter if the hearing is adjourned it is in our opinion unnecessary to give a further notice at all for the adjourned date
It was the duty of the petitioner after he had received notice of the first date to appear on that date
If he did not appear and the hearing had to be adjourned on the request of the objectors or for any other reason to another date no further notice was necessary of the adjourned date
It is true that notice was given to the petitioner of the adjourned date but that was in our opinion as a measure of abundant caution
The rule does not however require that a fresh notice must be given of the adjourned date of hearing also
In the circumstances we reject this contention
Re 2
Reliance is placed on two circumstances to show that the Minister was biased and therefore the hearing given by him was no hearing in law
In the first place it is said that in answer to a question in the Orissa Legislative Assembly as to when the Government was taking over the privately operated motor routes the Transport Minister who eventually heard the objections replied that the Government had decided to take over all the routes from April 1 1961 eliminating all private operators
It is urged that this shows that the Transport Minister was biased and was determined whatever happened to push through the scheme so that it may become operative from April 1 1961
We are of opinion that there is no force in this contention 686 of bias based on this reply of the Minister to a question put in the Legislative Assembly
The Government was asked when it was intending to take over the privately operated motor routes and its reply was really a matter of policy namely that it was the policy of the Government to take over all the routes eliminating all private operators from April 1 1961
This did not mean that even if for example the scheme was not ready or if the scheme put forth was found by the Government to be open to objection the Government would still force through the taking over of the privately operated routes from April 1 1961  This answer was merely an indication of the Government s policy namely that the Government was intending to take over all private operated routes from April 1 1961  but whether in actual fact all the routes would be taken over on that date would depend upon so many circumstances including finance
It cannot be said that this announcement of the Government s policy in answer to a question put in the legislative assembly meant that the Government was determined whatever happened to eliminate all privately operated routes by April 1 1961
We are therefore of opinion that the Minister cannot be said to be personally biased because this policy statement was made by him in answer to a question put in the legislative assembly
Another reason that is urged to support the personal bias of the Minister is that the Minister is said to have stated to certain persons that as the privately operated routes in the district of Ganjam which was his constituency had been nationalised he was determined to annihilate all the private bus operators in the district of Cuttack also
This allegation has been denied on behalf of the State
It is however urged that no affidavit has been filed by the Minister who alone was likely to have knowledge on this point
It appears however that the petitioners also have no personal knowledge of 687 any such determination on the part of the Minister
Thy based their allegation on an alleged talk between the Minister and two citizens of Cuttack namely a municipal councillor and an advocate
No affidavit however of the two persons concerned has been filed to support this allegation
In the circumstances we are of opinion that it was not necessary for the Minister to file an affidavit for the allegation on behalf of the petitioners was also based on heresay and it has been contradicted by similar evidence on behalf of the State
It would have been a different matter if the two persons concerned had made affidavits from personal knowledge
There is therefore no force in this contention and we are of opinion that it cannot be said on the facts of this case that the Minister was biased
Re 3 and 4
We propose to take these points together
We are of opinion that the petitioners cannot be allowed to raise these points for the first time in arguments before us for there is no mention of these points in their petitions
It appears that in an affidavit filed ill connection with stay something was said on these two points but the stay matter was never pursued and never came up before this Court for hearing
In the circumstances there was no reply from the State Government to these allegations
We are of opinion that the petitioners cannot be allowed to raise these points now for the first time in arguments when they did not raise them in their petitions and consequently reject them
Re 5
It is contended that under r 3 vi of the Orissa Rules the draft scheme or the approved scheme has to be published in the official gazette under sections 68D and 68E and has to contain certain particulars including the actual date of operating 688 the route
Now what happened in this case is that the draft scheme mentioned the date of operation as April 1 1961
This was in accordance with r 3 vi
When the final scheme was published this date was not mentioned in it
We will assume that r 3 vi requires that when the final scheme was published the date should have been mentioned
It seems to us that the rule so read has been substantially complied with for the notification publishing the final scheme refers to the draft scheme and says that the draft scheme is approved and there is no mention of any modification
In the circumstances it could in our opinion be not unreasonable to read the date April 1 1961 incorporated in the final scheme by reference to the draft scheme
It would have been a different matter if the draft scheme also did not contain the date of operation
We are therefore of opinion that there has been substantial compliance with r 3 vi and the final scheme cannot be said to be bad for non compliance with the rule
We therefore reject this contention
Re 6
It is urged in this connection that the Transport Controller had no authority to publish the draft scheme
It is also urged that the Transport Controller is not the State Transport Undertaking and the notification under section 68C does not show that the State Transport Undertaking was of opinion that it was necessary to take over certain transport services for the purpose mentioned in that section
The argument as raised before us is really two fold
In the first place it is urged that the Transport Controller had no authority to publish the scheme
There is however no force in this contention for section 68C requires that after the State Transport Undertaking has formed the opinion required thereunder and prepared a scheme it shall cause the scheme to be published
The Transport Controller 689 is the chief officer of the State Transport Undertaking and we see nothing irregular if he publishes the scheme prepared under section 68C
The section lays down that after the scheme has been prepared in the manner provided thereunder the State Transport Undertaking shall cause it to be published which means that some officer of the Undertaking will have it published in the gazette
In the present case the chief officer of the Undertaking has got it published and this in our opinion is in sufficient compliance with section 68C
The other part of the argument is that the notification under section 68C does not show that it was the State Transport Undertaking which was satisfied that it was necessary to take action under that section for it says that I Colonel section K Ray Indian Army Retd Transport Controller Orissa in charge of State Transport Undertaking Orissa am of opinion that for the purpose of providing an efficient adequate and economical and properly coordinated road transport service it is necessary     The argument is that it was not the State Transport Undertaking which was satisfied but Col section K Ray Transport Controller who formed the necessary opinion under section 68C
We find that this point was also not taken in the petitions
All that was said in the petitions was that the Transport Controller was only in charge of the transport services in the State and there was no State Transport Undertaking in the State of Orissa within the meaning cl
b of section 68A of the Act
This case has been abandoned but it is now contended is that even though there may be a State Transport Undertaking in Orissa that Undertaking was not satisfied that it was necessary to take action in the manner provided in section 68C
This in our opinion is a question of fact and should have been specifically pleaded in the petitions so that the State may have been able to make a reply
In the absence therefore of any averment on this question 690 of fact we are not prepared to allow the petitioners to raise this point in arguments before us
In the circumstances we reject this contention also
The petitions therefore fail and are hereby dismissed with costs one set of hearing costs
Petitions dismissed


Summary:
The validity of a scheme of road transport service approved by the Government of Orissa under section 68D 2 of the 682  was challenged by the petitioners on the grounds 1 that a proper notice was not given for the hearing of objections to the scheme 2 that the Minister for Transport who approved of the scheme was biased 3 that the final scheme did not mention the date on which it was to come into operation and 4 that the Transport Controller who published the scheme had no authority to do so
 Held that 1 r 8 of the Rules framed by the Orissa State Government under Ch
IVA of the  applied only to the first date to be fixed for hearing and that if for any reason the hearing was adjourned it was not necessary to give a fresh notice under the rule for the adjourned date of hearing 2 the statement made by the minister in answer to a question put in the legislative assembly that the Government had decided to take over all the routes from April 1 1961 eliminating all private operators was merely an indication of the Government s policy and that the minister could not be said to be personally biased 3 the approved scheme was not invalid for the reason that the actual date of operating the route was not mentioned in the final scheme as required under r 3 vi of the Rules inasmuch as the notification publishing the final scheme referred to the draft scheme which contained that date and said that the draft scheme was approved and consequently the rule must be considered to have been substantially complied with and 4 the Transport Controller being the Chief Officer of the State Transport Undertaking had the authority to publish the scheme under section 68C of the Act since the section provided that the State Transport Undertaking shall cause it to be published which meant that some officer of the Undertaking would have it published in the Gazette