Case: Sobhraj Odharmal Vs. State Of Rajasthan

question whether any fundamental right of the petitioner in the writ petition, to carry on business was infringed by the State Transport Undertaking plying its vehicles without obtaining permits under Section 42(1). The scheme was by order dated March 23, 1962 of the Legal Remembrancer who was invested with authority to hear objections thereto, duly approved. The scheme so approved by the Legal Remembrancer was published in the Government Gazette, and thereby it was directed that permits of 55 operators (amongst whom is the petitioner) on the route in question shall be cancelled, and the Regional Transport Authority in exercise of the powers conferred under Section 68F(2) and in pursuance of the scheme ordered that those permits be cancelled. 13. Sub-sections (1) and (2) of Section 68F deal with different matters; exercise of the powers under clause (2)is not dependent upon the grant of any permits to the State Transport Undertaking. By sub-section (1) a statutory duty is imposed upon the Regional Transport Authority to grant permits to the State Transport Undertaking, if application is made in that behalf pursuant to an approved scheme. To such an application the provisions contained in Ch. IV such as Sections 47, 48, 57 and allied Sections will not apply. It was observed by this Court in Abdul Gafoor v. State of Mysore, AIR 1961 SC 1556 ,"In order that the approved scheme may be implemented the State Transport Undertaking which is to run and operate the Transport Service under the scheme must have a permit from the Regional Transport Authority, Section 68-F(1) provides that the State Transport Undertaking will have to apply for a permit (i) in pursuance of the approved scheme and (ii) in the manner specified in Chapter IV. Once that is done, the sub-section proceeds to say "A Regional Transport Authority shall issue such permit to the State Transport Undertakings", and this "notwithstanding anything to the contrary contained in Chapter IV". It appears clear to us that the provisions of Section 57(3) have nothing to do with these matters dealt with by Section 68-F(i). x x x x Under Section 68-F(i) as already mentioned the Regional Transport Authority has no option to refuse the grant of the permit provided it has been made in pursuance of the approved scheme and in the manner mentioned in Chapter IV. The duty of the Regional Transport Authority on receipt of the application from the State Transport Undertaking for a permit is therefore to examine the application for itself to see whether it is in pursuance of an approved scheme and secondly whether it has been made in the manner laid down in Chapter IV. This is a duty which the Regional Transport Authority has to perform for itself and there is no question of its asking for assistance from the public or existing permit holders for Transport Services on the route. Neither the public in general nor the permit holders has any part to play in this matter." 14. Sub-section (2) authorises the Regional Transport Authority to take action or to make orders to effectuate the scheme and to implement its directions. In Samarth Transport Co. (p) Ltd. v. Regional Transport Authority Nagpur, AIR 1961 SC 93 , dealing with the conditions under which the power under Section 68-F(2)(a) may be exercised it was observed that "this power does not depend upon the presentation of an application by the State Transport Undertaking for a permit. This power is exercisable when it is brought to the notice of the authority that there is an approved scheme, and to give effect, to it, application for renewal cannot be entertained." 15. In Kalyan Singh v. State of Uttar Pradesh, AIR 1962 SC 1183 , it was held that an order passed by the Regional Transport Authority under Section 68-F(2) pursuant to a direction under a scheme duly approved and published is purely consequential upon the scheme, and is not open to challenge. In considering the effect of clause (2) of Section 68F it was observed in that case that"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." 16.It was further observed that"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 Art. 32 of the Constitution can not be maintained unless a fundamental right of the applicant is infringed." 17. It was therefore held in that case that if a valid scheme contains a direction for cancellation of outstanding permits and the permits are in fact cancelled by order of the Regional Transport Authority, it is not open to the operator whose permits are cancelled to claim that the State Authority which commenced to operate its vehicles without obtaining permits under Section 42 of the Motor Vehicles Act infringes the right of the operator to carry on his business. The right of the operator having been lawfully extinguished protanto by the scheme and the consequential order under Section 68-F(2), he is not entitled to have resort to this Court under Art. 32 of the Constitution for protection of his alleged right. 18. The scheme was duly published and the permits issued in favour of fifty-five operators whose names are set out in the order dated May 3/4, 1962 were lawfully cancelled. The objectors had since cancellation of their permits no fundamental right which could be infringed by the State Government plying its vehicles with or without permits issued by the Regional Transport Authority under Section 42(1) of the Motor Vehicles Act. 19.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The High Court, without issuing rule upon the State and the Transport Authorities, dismissed the petition, holding that Rule 7 (4) was not ultra vires the Motor Vehicles Act, and that it was difficult, on the material placed before the Court, to hold that the Legal Remembrancer had not in fact determined the question of regularity of service of notice upon the objectors before he commenced hearing the objectionsThe scheme was by order dated March 23, 1962 of the Legal Remembrancer who was invested with authority to hear objections thereto, duly approved. The scheme so approved by the Legal Remembrancer was published in the Government Gazette, and thereby it was directed that permits of 55 operators (amongst whom is the petitioner) on the route in question shall be cancelled, and the Regional Transport Authority in exercise of the powers conferred under Section) and in pursuance of the scheme ordered that those permits be cancelledIt was therefore held in that case that if a valid scheme contains a direction for cancellation of outstanding permits and the permits are in fact cancelled by order of the Regional Transport Authority, it is not open to the operator whose permits are cancelled to claim that the State Authority which commenced to operate its vehicles without obtaining permits under Section 42 of the Motor Vehicles Act infringes the right of the operator to carry on his business. The right of the operator having been lawfully extinguished protanto by the scheme and the consequential order under Section, he is not entitled to have resort to this Court under Art. 32 of the Constitution for protection of his alleged rightThe scheme was duly published and the permits issued in favour ofe operators whose names are set out in the order dated May 3/4, 1962 were lawfully cancelled. The objectors had since cancellation of their permits no fundamental right which could be infringed by the State Government plying its vehicles with or without permits issued by the Regional Transport Authority under Section 42(1) of the Motor Vehicles Act.