IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21/03/2003 CORAM THE HON'BLE MR.JUSTICE E.PADMANABHAN WRIT PETITION NO.15920 of 1995 WRIT PETITION NOS. 15922 of 1995, 15983, 15986, 10854, 10862, 10864, 10865, 10875, 10876, 10880, 11238, 11239, 11368, 11369, 11370 , 11557, 12152, 12921, 13084, 13085, 11410, 11411, 11412, 13364, 13365, 13366, 13373 to 13375, 13382, 13383, 13509, 13573, 13574, 1334, 13335, 16363 to 16366, 16459, 17371, 17372, 17408, 17409, 17410,14139, 14308 to 14310, 15915, 17480, 17504 to 17508, 16861 of 1995 & 3358 of 1996 & 1234, 4636, 1380, and 9685 of 1998 and W.M.P.Nos:25431, 25433, 25435, 25437, 7436, 7439/97 & 17252/95, 52552 , 52089/2002, 17261, 17265, 17282, 17284, 170288, 17836, 17838/1995, 18045, 18047, 18049, 18351/1995, 19366, 65866/1996, 20701, 20982 20984, 21447, 21455, 21456, 21469, 21661, 21749, 21751, 25991, 25993, 25995, 25997/1995, 11855 to 11858/1997 27495, 27497, 22505, 22766, 22768 , 22770, 25304, 25322, 25324, 25326/1995, 4729, 4730, 4731/97, 5400/96, 20602, 7093/98 and 15379/95. W.P.No:15920/95 Sri Lakshmi Saraswathi Bus Service Teachers' Colony, Erode. ..Petitioner -Vs- 1. The Government of Tamil Nadu rep. by the Secretary Home (Tansport Dept.,) Secretariat, Chennai-9 2. The Regional Transport Authority, Periyar District., Erode. 3. Jeeva Transport Corporation Ltd., rep. by its Managing Director Chennimalai Road, Erode 738 002 ..Respondents !For petitioners: Mr.S.Varadachachi :: WP.Nos:15983 to 15986, 15920 to 15922/95 Mr.M.Krishnappan :: W.P.Nos:10854, 11410, 11411 and 11412/95 Mr.S.C.Palanisamy :: W.P.Nos:10862, 10864, 10865, 10875, 10876, 10880, 13364, 13365, 13366, 13373, 13383, 17480, 13334 , 1335, 13374, 13375, 13382, 17504, 17505, 17506, 17507 and 17508/95 Mrs.S.Radhagopalan :: W.P.Nos:11238,16861 & 11557/95 Mr.R.S.Ramanujam :: W.P.Nos:11368 to 11370, 13084, 17408, 17409 and 17410/95 Mr.N.Gopalakrishnan:: W.P.Nos:12152, 17371, 17372/95 Mr.C.R.Krishnamoorthy W.P.Nos:11239/95, 6114/98, 13573, 13574 , 16459, 14308 to 14310/95 and 6086 of 1998 Mr.K.M.Venugopal :: W.P.Nos:13509/95, 15915/95 Mr.R.Neatesan :: W.P.Nos:16363 to 16366 of 1995 Mr.V.Lakshminarayan:: appearing in person (WP3358/96) Mr.K.Hariharan :: W.P.Nos:1234, 4636/98 & 9685/95 Ms.P.Vedavalli :: W.P.1380/98 Mr.M.Palani :: for implead petitioners' ^For Respondents: :: In all the Writ Petitions Mr.N.R.Chandran, Advocate General assisted by Mr.Sanjay Ramasami Petitions filed under Article 226 of The Constitution of India praying for the issue of a writ of Certiorari as stated therein. :C O M M O N O R D E R This batch of Sixty Four writ petitions were ordered to be consolidated by the orders of the Hon'ble Chief Justice and they were taken up together. With the consent of counsel for the petitioner in each of the writ petition and the respondents in each of the writ petition, the writ petitions were taken up for final disposal. The counsel appearing in each of the writ petition and the Learned Advocate General appearing for the respondents made common submissions. It is stated by the counsel for the petitioners that points raised in these writ petitions are common and they could be considered together excepting a small difference, which may not have a bearing in respect of the ultimate orders that may be passed in this batch of writ petitions. 2. In W.P.Nos:15920 to 15922, 15983, 15984, 15985, 15986, 16861 of 1 995, the petitioners have prayed for the issue of a writ of certiorari to call for the records of the first respondent in G.O.Ms.No: 749, Home (Transport) dated 23.5.1995 and published in Tamil Nadu Government Gazette (Extraordinary) No.268 dated 24.5.1995 relating to the revenue District of Erode and quash the same and pass such further or other orders as this court deems fit. 3. In W.P.Nos:10854, 10862, 10864, 10865, 10875, 10876, 10880, 11239 , 11557 of 1995, the petitioners have prayed for the issue of a writ of certiorari to call for the records of the first respondent in G. O.Ms.No: 742, Home (Transport-III) dated 24.5.1995 and published in Tamil Nadu Government Gazette No.469, dated 24.5.1995 relating to the revenue District of Vellore and quash the same and pass such further or other orders as this court deems fit. 4. In W.P.Nos: 11238, 12152 of 1995, the petitioners have prayed for the issue of a writ of certiorari to call for the records of the first respondent in G.O.Ms.No: 743 and 744, Home (Transport-III) dated 23.5.1995 and published in Tamil Nadu Government Gazette, dated 24.5 .1995 relating to the revenue Districts of Tiruvannamalai and Villupuram and quash the same and pass such further or other orders as this court deems fit. 5. In W.P.Nos:11368, 11369, 11370, 13084, 13085, 13364, 13383, 143 08, 14310, 16363, 16364, 16365, 16366, 16459, 17408, 17409, 17480 of 1995, the petitioners have prayed for the issue of a writ of certiorari to call for the records of the first respondent in G.O.Ms.No: 74 7, Home (Transport-III) dated 23.5.1995 and published in Tamil Nadu Government Gazette, dated 24.5.1995 relating to the revenue District of Salem and quash the same and pass such further or other orders as this court deems fit. 6. In W.P.Nos:12921, 13509, 15915, 13598 of 1995, the petitioners have prayed for the issue of a writ of certiorari to call for the records of the first respondent in G.O.Ms.No: 750, Home (Transport-III) dated 23.5.1995 and published in Tamil Nadu Government Gazette, dated 24.5.1995 relating to the revenue District of Madurai and quash the same and pass such further or other orders as this court deems fit. 7. In W.P.Nos: 13573, 13574 of 1995, the petitioners have prayed for the issue of a writ of certiorari to call for the records of the first respondent in G.O.Ms.No: 7, Home (Transport-III) dated 23.5.1995 and published in Tamil Nadu Government Gazette No.458, dated 24.5.199 5 relating to the revenue District of Virudhunagar and quash the same and pass such further or other orders as this court deems fit. 8. In W.P.Nos: 14139, of 1995, the petitioners have prayed for the issue of a writ of certiorari to call for the records of the first respondent in G.O.Ms.No: 756, Home (Transport-III) dated 24.5.1995 and published in Tamil Nadu Government Gazette, dated 24.5.1995 relating to the revenue District of Sivaganga and quash the same and pass such further or other orders as this court deems fit. 9. In W.P.Nos:17371, 17372/95 1234/98, 4636/98 the petitioners have prayed for the issue of a writ of certiorari to call for the records of the first respondent in G.O.Ms.No: 746, Home (Transport-III) dated 23.5.1995 and published in Tamil Nadu Government Gazette No.469, dated 24.5.1995 relating to the revenue District of Dharmapuri and quash the same and pass such further or other orders as this court deems fit. 10. In W.P.No:3358 of 1996 the petitioner has prayed for the issue of a writ of certiorari to call for the records of the first respondent in G.O.Ms.No: 748, Home (Transport-III) dated 23.5.1995 and published in Tamil Nadu Government Gazette NO.268, dated 24.5.1995 relating to the revenue District of Coimbatiore and quash the same and pass such further or other orders as this court deems fit. 11. In W.P.No: 1380 of 1998 the petitioner has prayed for the issue of a writ of certiorari to call for the records of the first respondent in G.O.Ms.No: 746, Home (Transport-III) dated 23.5.1995 and published in Tamil Nadu Government Gazette NO.268, dated 24.5.1995 and quash the same in so far as it affects the petitoenrs inter-state route Bangalore to Tirupathur and pass such further or other orders as this court deems fit. 12. In W.P.No:13374 and 13375 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.882 of 1984 dated 22.12.1994 confirming the order of the Regional Transport Authority, Periyar District at Erode made in R.No.54236/A2/84 dated 6.11.1984, to quash the same as illegal and pass such further orders. 13. In W.P.No: 13375 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.417 of 1984 dated 9 .3.1995 confirming the order of the Regional Transport Authority, Periyar District at Erode made in R.No.20227/A3/92 dated 26.3.1993, to quash the same as illegal and pass such further orders. 14. In W.P.No: 13382 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.803 of 1993 dated 4.4.1995 confirming the order of the Regional Transport Authority, Salem District at Erode made in R.No.42689/B1/93 dated 22.11.1993, to quash the same as illegal and pass such further orders. 15. In W.P.No: 13365 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.642 of 1993 dated 2 2.5.1995 confirming the order of the Regional Transport Authority, Namakkal, Salem District made in R.No.108885/C1/92 Item No.1/3-8-1993 to quash the same as illegal and pass such further orders. 16. In W.P.No: 13366 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.641 of 1984 dated 22.5.1995 confirming the order of the Regional Transport Authority, Namakkal, Salem District made in R.No.10884/C1/92, Item No.2/3-9-93, to quash the same as illegal and pass such further orders. 17. In W.P.No: 13366 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.641 of 1984 dated 2 2.5.1995 confirming the order of the Regional Transport Authority, Namakkal, Salem District made in R.No.10884/C1/92, Item No.2/3-9-93, to quash the same as illegal and pass such further orders. 18. In W.P.No: 13334 of 1995 the petitioner has prayed for the issue o!f a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.661 of 1991 dated 7.4.1995 confirming the order of the Regional Transport Authority, Namakkal, Salem District made in R.No.9717/A3/93, dated 13.9.1993 to quash the same as illegal Aand pass such further orders. 19. In W.P.No: 13335 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.663 of 1993 dated 2 4.2.1995 confirming the order of the Regional Transport Authority, Periyar District at Erode made in R.No.6458/A3/93, dated 13.9.1993 to quash the same as illegal and pass such further orders. 20. In W.P.No: 17410 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.386 of 1994 dated 1 9.7.1995 confirming the order of the Regional Transport Authority, Namakkal, Salem District made in R.No.70163/A2/93, dated 23.8.1994 to quash the same as illegal and pass such further orders. 21. In W.P.No: 17504 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.294 of 1993 dated 9 .3.1995 confirming the order of the Regional Transport Authority, Periyar District made in R.No.64395/B3/92, dated 17.3.1993 to quash the same as illegal and pass such further orders. 22. In W.P.No: 17505 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.48 of 1994 dated 22.5.1995 confirming the order of the Regional Transport Authority, Periyar District made in R.No.3167/B2/92, dated 30.11.1993 to quash the same as illegal and pass such further orders. 23. In W.P.No: 17506 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.40 of 1994 dated 7.4 .1995 confirming the order of the Regional Transport Authority, Periyar District made in R.No.10078/B3/93, dated 30.11.1993 to quash the same as illegal and pass such further orders. ^ 24. In W.P.No: 17507 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.27 of 1994 dated 22.5.1995 confirming the order of the Regional Transport Authority, Periyar District made in R.No.10078/B3/92, dated 30.11.1993 to quash the same as illegal and pass such further orders. 25. In W.P.No: 17508 of 1995 the petitioner has prayed for the issue of a writ of certiorari calling for the records of the State Transport Appellate Tribunal, Madras made in Appeal NO.377 of 1993 dated 10 .4.1995 confirming the order of the Regional Transport Authority, Salem District made in R.No.B1/18020/74, dated 8.4.1993 to quash the same as illegal and pass such further orders. 26. According to the petitioner the first respondent notified the scheme in respect of stage carriages for the area comprising the revenue District of Periyar (Erode) under section 99 of the Motor Vehicles Act, 1988 which was published in the Government Gazette dated 27th May 1994 and published in the local Daily "Dina Malar" on 3.6.19 94. The petitioner filed objections in writing within time before the Secretary to Government, Home (Transport) Department. The said Secretary heard the petitioner's counsel. The draft scheme has been approved under section 100(2) of the Motor Vehicles Act, 1988 by G.O. Ms.No.749 Home (Transport III) Department, dated 23.5.1995 and published in Government Gazette dated 24.5.1995. The said approved scheme as notified affects the petitioner in that not only all the pending applications for grant were rejected, but also its operations will be restricted. The approval of the scheme it is stated seriously affects the petitioner. Hence the present challenge. 27. The petitioner in each of the writ petition challenges various Notifications approving the scheme and notifying the approved scheme under section 100 (2) of the Motor Vehicles Act. It is contended that the respondents have not communicated the reasons for rejecting the objections and approving the scheme. The failure to communicate the reasons to the objector vitiates the approval of the scheme. Rule 283(2) of the Motor Vehicles Rules 1989, provides for maintenance of records and communication of the reasons for overruling the objections and approving the impugned scheme. Despite an application being made for the grant of the proceedings, the respondent has not furnished the reasons nor communicated a speaking order passed by the respondent while rejecting the objections and approving the scheme. It is impossible for the petitioner to canvass the merit or demerits of the approval without the respondent communicating a copy of the orders. The proceedings being quasi judicial, the respondents should have acted fairly and ought not to have acted with illegality and biased approach, while approving the scheme. 28. Section 99 of the motor Vehicles Act 1988 empowers the State Government to formulate scheme to be run and operated by State Transport Undertakings as against the provisions of the 1939 Motor Vehicles Act, which enabled the State Transport Undertaking to formulate the Scheme. 29. It is contended that the Scheme has not been formulated by the State Government, but it has been formulated by the Transport Department which is an illegality. The respondents while approving the scheme by holding a hearing under section 100 of the Motor Vehicles Act, 1988 is sitting in judgment over a lis between State Transport Undertakings and Private Operators which is a quasi judicial and the failure to follow the procedure prescribed in this respect vitiates the approval. 30. The Motor Vehicles Act, 1988 contemplates formulation of the Scheme under the Act by the Government, but in the present case such a scheme has been formulated by the Home Secretary (Transport Department). The Home Secretary has not been conferred with the power to formulate a draft scheme and in the absence of any rules, all the draft schemes published lack legal validity and therefore they cannot be proceeded further The approval of the scheme by the Home Secretary would amount to his being a Judge of his own cause and therefore it is violative of principles of natural justice, vitiated by bias, arbitrary and violative of Art.14. 31. Nextly, it is contended that the area has not been defined or notified. In the absence of any Notification under the relevant provisions of The Motor Vehicles Act, the area scheme notified is wholly illegal. The failure to consider and deal with the objections is fatal to the draft and approved schemes. There is no warrant at all to frame a area scheme. In an area scheme grant of permit to private operator is prohibited and no preference could be shown in favour of a State Transport Undertaking which is not operating on the route. Such scheme cannot be considered as one framed to secure efficient, economic and properly coordinated road transport service. 32. It is contended that vast difference or discrepancy between the maximum and minimum number of stage carriages proposed or approved to be operated would be fatal to the scheme as it is not in the interest of the traveling public. Therefore the scheme is liable to be struck down. The approval of the scheme is discriminatory as it does not eliminate all private operators in the scheme area. The provisions to permit existing private operators on the area and did not permit the others is discriminatory and violative of Art.14. Either private operators should be allowed or should be excluded totally. To permit the existing private operators alone to operate would be perpetuating their monopoly in the area. 33. The Motor Vehicles Act, 1988 and the Rules framed thereunder has set out liberal policy with respect to stage carriage operation both by private operators and State Undertaking and therefore it is arbitrary to exclude or eliminate fresh grant or permits to private operators. The proposed and approved area scheme has affected by taking away the fundamental rights of a citizen and therefore it is liable to be declared as unconstitutional. The scheme approved by the Secretary, Home (Transport) Department, are not placed on the floor of the Legislative Assembly, nor it is subjected to direct voting of the Legislature and this is contrary to the constitutional guarantee. Further in any event there is total non application of mind by the respondents as the respondents have not applied its mind to find out whether the scheme would achieve the purpose, whether it would be economic or efficient or whether there could be guaranteed operation and this failure vitiates the approved schemes. The State Transport Undertakings have already sustained huge loss as it is uneconomic for them to operate at high cost and therefore it is not in public interest. There is complete lack of coordination and this also vitiates the proposal as well as approval of the schemes. 34. In all the writ petitions, the above are the common averments set out in the supporting affidavits and the respondents have filed a common counter affidavit. The batch of writ petitions have been filed challenging the District-wise area scheme for operation of stage carriages by the State Transport Undertakings by various Notifications published in the Gazette. The Government announced its policy of Nationalisation. According to the policy the entire Passenger Transport services would be nationalised. The Tamil Nadu Stage Carriages Contract Carriages (Acquisition) Act, 1973 was passed to achieve the said object. The said enactments were challenged. The High Court declared it unconstitutional. But the Apex Court reversed the judgement of the High Court and declared it valid. After 1976 there was a change in the policy of nationalisation and small operators who were already operating in the field for a long time were allowed to run their services in public interest. The Tamil Nadu Stage Carriages and Contract Carriages (Acquisition) Amendment Act, 1984 was introduced exempting small bus operators holding five or less stage carriage permits from the provisions of the said Act. The Apex Court during 1987 held that private operators other than those who were specifically permitted to operate while approving the scheme, could not operate their buses either on the notified routes or on the routes which overlap notified routes. In order to protect the small operators and to continue their services, the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1987 was passed by the State Legislature on 13.11.198 7. As seen from the provisions of the said special enactment the State Government decided to allow private operators existing and operators for the period from 4.6.1976 and 30.6.1990 to continue the services in the existing rules in public interest. The existing private operators in the approved scheme routes alone were allowed to continue their limited operation. 35. Chapter V of the Motor Vehicles Act, 1988 enables for liberalisation of Private Sector for operation of road transport service. Chapter VI of the Act specifically provides for operation of bus transport services by the State Transport Undertakings either to the complete or partial exclusion of others. The State could notify the schemes for operation of such carriages by State Transport Undertakings and restrict the grant of permit to other persons in respect of the notified areas under the provisions of the said Chapter. To maintain efficient, adequate, economical and properly coordinated road transport services the Government in the interest of the public notified the State Transport undertakings in the Districts in addition to the existing private stage carriage operators protected under the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992, State Transport Undertakings of other States and the stage carriage operators operating on inter state routes whose permits are covered by inter state agreements. The State Transport Undertakings are running many services in uneconomical sectors and unserved areas as well. As a social welfare measure of the school going children are allowed to travel in the City and Town Routes on concessional fares. Free Transport facility is allowed to the blind. 36. Under Section 99 of the Motor Vehicles Act, 1988 Government formulated the District wise draft area scheme for operation of stage carriages road transport services by State Transport Undertakings and the same was published in the Government Gazette on 27.5.1994 by following the relevant provisions of the Motor Vehicles Act and the Tamil Nadu Motor Vehicles Rules 1989. The proposal was considered and formulated up to the level of Chief Minister based on the policy adopted by the Government. The Secretary to Government did not formulate the proposal. 37. According to Rule 12(1) of The Tamil Nadu Government Business Rules every order or instrument of the Government shall be signed either by the Secretary or by Additional Secretary or Joint Secretary or Deputy Secretary or under Secretary. By virtue of the said Rules the very draft area scheme formulated by the Government under Section 99 of the Act was signed by the Secretary to Government on behalf of the Government. The Government Rules have not been amended authorising the Secretary to Government to formulate the Draft area scheme under Section 99 of the Motor Vehicles Act, 1988. 38. According to Section 100(2) of the Motor Vehicles Act, the State Government after considering the objections and after affording opportunity to the Objectors or his representatives and the representatives of the State Transport Undertakings to be heard in the matter, approve or modify such proposal. In terms of Section 102(1) of the Motor Vehicles Act, 1988 the State Government may at any time if it considers necessary modify or cancel any approved scheme after giving notice to State Transport Undertakings and any other person who is likely to be affected by the proposed modification and cancellation. 39. To comply with Section 100(2) of the Act the representatives of the State Transport Undertakings, objectors and other authorised agents are required to be heard by the Authority empowered by the Government by their Rules of Business. In terms of Business Rules the hearing was by the Secretary to Government and under Section 97 of the Motor Vehicles Act the powers and and functions which the State Government may exercise and perform under Section 100 and 102 of the Act and the Rules relating to shall