R. D. AGARWALA & ANR. ETC.

UNION OF INDIA & ANR.

February 23, 1970

[M. HIDAYATULLAH, C.J., J. C. SHAH, K. S. HEGDE,

A. N. GROVER AND A. N. RAY, JJ.]

Practice and Pi-ocedure-Single Judge deciding iniportant questions and suo motu granting certificate 'under Art. 132(1) of the Constitution-

Pro_.,, riety.

Writ petitions involving. important questions of law came up before C a single Judge of the High Court.

He was requested by the parties to refer the cases to a Divisional Bench.

Instead of doing so he disposed them of himself, and suo n1otu granted a certificate under Art. 132(1) of 1he constitution for appeal to this court.

HELD : The action of the Judge though technically permissible wa-; improper, because, either the Judge should have referred the case<; to a Bench, or alloY.ied the P.arties to pursue their right of appeal to a D Bench against the decision of the single Judge, without short circuiting tht right by passing on the cases to this Court. [779 E-G)

CIVIL APP ELLA TE JURISDICTION : Civil Appeals Nos. 2634 of 1969 and 63 of 1970.

Appeals from the judgment and order dated December 5, E 1969 of the Delhi High Court in Civil Writ Nos. 220 and 725 of 1968.

C.A. No. 2634 of 1969.

Sarjoo Prasad, Prem Nath Chadda, K. L. Mehta, S. K. Mehta, K. R. Nagaraja, M. G. Gupta and Sona Bhatiani, for the appel- F !ants.

R. N. Sachthey, for respondent No. 1.

M. C. Setalvad, Govind Das and B. P. Singh, for intervener No. 1.

M. C. Chagla, K. K. Jain, Bishamber Lal and H. K. Puri, for intervener no. 2.

C.A. No. 63 of 1970.

R. V. S. Mani .. for the appellants.

S. P. Nayar, for respQndent No. 1.

S. K. Mehta, K. L. Mehta, K. R. Nagaraja and Sona Bhatiani for respondents Nos. 3 and 4. . '

,..

R. D. AGARWALA v. UNION (Hidayatul/ah, C.J.) 779

The Order of the Court was delivered by

Hidayalullah, C.J.

This order will govern the disposal of Civil Appeals Nos. 2634 of 1969 and 63 of 1970. These two appeals arise out of two writ petitions filed in the High Coun of Delhi which were disposed of by a common judgment delivered by a le3rned single Judge on December 5, 1969. The appeals have been brought on certificate granted suo motu by the learned single Judge under Art. 132(1) of the Constitution of India.

While granting the certificate, the learned single Judge observed that at an earlier stage in the case, request was made to him to refer these two petitions for decision to a Bench, because important questions were involved in them. At that time, the learned Judge felt that since there was a Division Bench decision of the Rajasthan High Court in Jaipur Udyog Ltd. v. Union of India and another(') there was no need to refer the matter to a larger Bench. The learned Judge goes on to say in the order granting certificate that at the time of the hearing, he found that several questions arose before him which were not covered by the Rajasthan decision. He probably felt that as the points which he had to decide were not considered by this Court in any earlier decision and a• he had decided the case sitting singly, he should grant certificate .mo motu for appeal to this Court.

In our opinion, and we say it respectfully, the learned Judte was error in not making a reference to a Bench when he found that important questions of law were arising before him: Even if he did not make any reference, he should have allowed the parties to take an appeal in the High Court itself under the provisions pertaining to appeals against decisions of a single Judge. Tke practice of deciding the case sitting singly and giving a certificate under Art. 132(1) for appeal to this Court although technically correct, is 111 improp.r practice. Ii is the right of the party to file an appeal in the High Court itself against the decision of the single Judge and that right should not be shOrt-circuited by passing Ol\ the case io the Supreme Court for decision. We think we should not endorse this practice which would create a bad precedent in India. We accordingly cancel the certificate and leave the parties free to file an appeal in the High Court, it they so desire. There will be no order as to costs.

V.P.S.

Certificate Cancelled .

(I) A.1.R. 1969. Raj. 281.

T. N. RAGHUNATHA REDDY

MYSORE STATE TRANSPORT AUTHORITY

February 24, 1970

[S. M. SIKRI, V. BKARGAVA AND C. A. VAIDIALINGAM, JJ.]

Motor Vehicles Act 4 of 1939-'Kolar Scheme' approved and published by Mysore State Government under s. 68-D of Act-'Existing perniit holder' lVithin meaning of cl. (d) of scheme-Who is Agreement between Mysore and Andhra Governments for counter-signing each other perniits

for inter-State routes-Such agree1nent whether overrides Chapl:?r IV-A of Acr.

In 1959 the States of Mysore and Andhra Pradesh entered into a reciprocal arranaement agreeing thereby that certain permits issued by the Transport Authorities of one State should be counter-signed by those of

the other. Under s. 43(1) of the Motor Vehicles Act, 1939 the Government of Mysore issued directions to the State Transport Authority to give effect to the above arrangement. On April 25, 1968 the Regional Transport Authority Cuddapah, Andhra Pradesh issued a permit to the appellant for the Cilddapah-Bangalore inter-State route under s. 63 of the Act, which was to be valid up to May 13, 1971. The appellant then applied to the State Transport Authority in Mysore for counter-signature of his permit.

By then the Government of Mysore had by its order dated 25-1-1968 approved under s. 68-D of the Motor Vehicles Act, a scheme called the 'Kolar scheme'. That scheme provided for exclusive operation by the Mysore State Transport Undertaking of stage-carriages on the notified routes.

Under the scheme existing permit holders' could continue to operate inter-State routes except that their permits would be ineffective' for the overlapping portions of the notified routes. On March I, 1968 the Mysore State Transport Undertaking applied under s. 68F(l) to operate buses on the notified routes.

In December 1968 the Regional Transport Authoritv resolved to give effect to the scheme from 1-1-1969. Meanwhile the appellant's application for counter-signature came up before the Mysore State Transport Authority on July 6, 1968. By that time, however, writ petitions had been filed in the High Court, challenging the 'Kolar scheme' and the Court had made interim orders staying the operation of the. scheme.

In that situation the State Transport Authority, Mysore granted to the appellant counter-signature on his permit, expressly subject to the decision of the High Court as to the validity of the scheme.

On. October 7, 1968 the High Court dismissed the said writ petitions and upheld the validity of the scheme.

Thereupon the State Tran.sport Authority issued a notice to the appellant to surrender the counter-signature slip and stop running the buses.

The appeJlan.t chaHenged this order in a \vrit petition under Art. 226 of 'the Constitution. The petition being dismissed he appealed by special leave to this Court. rhe appellant contended inter alia that : (i) the counter-signature on the appeUant's pcrn1it could not be canoelled as he was an •existing permit holder' under cl. (d) of the scheme and for this purpose the crucial date \Vas 1-1-1969 when the order under s. 68F(2) came into effect; (ii) Inter-State agreement overrides the provisions of Chapter JV-A of the Act

HELD : (i) Assuming, without deciding, that the date of publication is not tbi" appropriate date, the date on which the transp0rt undertaking

applies under s. 68F(l) for a permit must be the date \Vilh rcfernce to which the. expression "existing permit holder" must be interpreted. The application by the State. Transport Undertaking in. the present cases \Vas made on March l, 1968. If this was the crucial date, the appellant was

not an "existing permit holder" because he did not obtain his counter signature till July 1968. [785 C-D]

Abdul Gafoor v. State Mysore, [1962] I S.C.R. 909, applied.

Sri SatJanarayana Transports (P) Lui. Guntur v. Andhra Prades/i

State Road Transport Corporation, C.A. No. 347 of 1961 dt. 30·10-1961, distinguished.

(ii) Even if the crucial date be taken as January 1, 1969 as cont<nded by the appellant, he must still fail on the ground that he was not a p<rmit hO!der at all.

His counter-signature must be deemed to have lapsed when the High Court on Octnber 7, 1968 dismissed the \vrit petitions in which the 'Kolar scheme' had been stayed. The order of the Regional Transport Authority gr.tnting the countersignature "subject to the decision of the High Court of Mysore about the validity of the Nationalisation Scheme of the Kilar Pocket" in the context of the case meant that if the writs failed the counter-signature would automatically lapse. [786 A-BJ

The Smarth Transport Co. v. The Regional Transporl Authority, [1961]

1. S.C.R. 631 at 639, referred to.

(iii) An inter-State agreement cannot over-ride the provisions of Chapter IV-A. .The inter-State agreement is not law and to hold that an inter-State agreement over-rides Chapter IV-A v.ould he to complete'1y

disregard the provisions of s. 68-B of the Act. Articles 162 and 298 of the Constitution had no relevance in this connection.

Assuming that a State has pcv.cr to enter into agreement with another State in exercise of its executive pO\l.'Crs under A.rt. 162 and under Art, 298 it can carry on

trade or business, the fa.::ts did not throw any hight on the question for decision. [786 H-787 Al

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1564 of 1969.

Appeal by special leave from the judgment and order dated April 15, 1969 of the Mysore High Court in Writ Petition No. 1112 of 1969.

P. Ram Reddy, P. Parameslt'ara Rao and A. V. V. Nair, for the appellant.

G Niren De, Attorney-Genera/, R. Gopalakrishnan and S. P.

Nayar, for respondent No. 1.

Shyamala Pappu and Vineet Kumar, for respondent No. 2.

The Judgment of the Court was delivered by Sikri, J.

This appeal by special leave is directed against the judgment of the High Court of Mysore dismissing Writ Petition No. 1112 of 1969 filed by T. N. R•aghunatha Reddy, appellant before us, against .the Mysore State Transport Authority. The

appellant had prayed , to the Court to quash the order/endorsement of the respondent, dated March 5/10, 1969.

In order to appreciate the points raised before the High Court and before us if is necessary to give a few facts.

In 1959 the States of Andhra Pradesh and Mysore appear to have entered into a reciprocal arrangement regarding inter-State road transport.

In exercise of the powers conferred by sub-s. ( 1) of s. 43 of the Motor Vehicles Act, 1939 (Central Act IV Of 1939) the Government of Mysore issued a direction to the State Transport Authority to take necessary action to give effect to the above arrangement. On October 8, 1964, the State of Mysore published under cl. (d) s. 68-C of the Motor Vehicles Act, 1939hereinafter referred to as the Act-what is called the "Kolar

Scheme". Clause ( d) of the scheme reads as follows :

~(d) Whether the services are to be operated by the State Transport

Undertaking to the exclusion, complete or partial of other persons or otberNise

The State TranSport Undertaking will operate services on all the routes to the complete exclusion of other persons except that :-

{a) that existing permit holders on the inter-State routes may .continue to operate such inter-State routes, subject to the condition that their permit shall be rendered ineffective for the over-lapping portions of the notified routes".

It is the case of the appellant that in March 1967 on a proposal made by the State of Mysore, the States of Andhra Pradesh and Mysore eniered into an agreement for counter-signing a second inter-State permit on the route Cuddapa to Bangalore, and on April 4, 1967, the Transport Commissioner of Andhra Pradesh showed willingness to countersign a second permit. On April 13, 1967 the Transport Commissioner of Mysore State expressed willingness to countersign the second permit.

It is further the case of the appellant that although the State of Andhra Pradesh carried out the agreement and countersigned the second permit on the Bangalore-Cuddapa route in favour of a Mysore operator the Mysore State refused to carry out this agreement.

On January 25, 1968, the Kolar Scheme, as approved, was published in the Gazette under s.68-D ( 3) of the Act. On March I. 1968. the Mysore undertakill!! applied under s.68F(l) to operate buses from January 1, 1968, or a later date.

On April 25, 1968, the Regional Transport Authority, Cuddapah issued a permit to the -appellant for Cuddapah-Bangalore route, an inter State route, under s. 63 of the Act. This permit is valid uptil May 13, 1971. On May 16, 1968. the appellant applied to the State Transport Authority, Mysore, for counter-sign; iture under s.63 of

the Act, and on May 20, 1968, the Transport Commissioner, Andhra Pradesh, requested the Transport Commissioner, Myso, re, to countersign the appellant's permit under the agreement.

In the meantime the Kolar Scheme had been challenged in the High Court and the High Court stayed the Kolar Scheme B pending the decision of the writs.

The application of the appel!ant, dated May 16, 1968, ior the grant of counter-signature of the permit came up for consideration before the Mysore State Tr3i11Sport Authority on July 6, 1968. The learned counsel for the appellant urged bef~ it that "counter-signature may be given with any timin~ found suitable by the Authority for their service which is an express service and does not stop in all stations as the shuttle services of the (in the case of) objectors." He also urged that "counter-signature may be cQllSidered and granted as there is a stay order ol. the High Court of Mysore in W.P. No. 1390 of 1968 against the operation of the Kolar Nationalisation Scheme and that his permit was granted before the Scheme was approved and that the permit is issued under reciprocal agreement." The grant of counter-signature was opposed by a number of objectors. The Law Officer of the Mysore State Undertaking argued that though there was a stay order against the Kolar Scheme and its implememtation it did not authorise any Transport Authority to grant any fresh permits for counter-signature. The Transport Authority observed:

"After considering the elaborate arguments oL the counsels for the petitioner and objectors and taking all aspects of the matter and facis as disclosed from the records and the large number of existing services on the route or sectors of the route, the S.T.A. resolved to grant the counter-signature subject to the decision .. of the High Court of Mysore about the validity of the Nationalisation Scheme of Kolar Pocket and with the fol!owing modification to the timings already granted by the R.T.A. Cuddapah."

In pursuance of this resolution actual counter-signature was granted on July 6, 1968. On October 7, 1968, the High Court dismissed the writs relating io the Kolar Scheme and the Regional Transport Authority its meeting on December 30, 1968, passed a series of orders which it deemed fit consequent on the implementation of the Kolar Scheme. On March 10, 1969, the State Transport AuthoritY, Mysore, issued a notice to the appel!ant to s•rrender the counter-signature slip and stop running the buses.

On March 15, 1969, the appellant filed writ petition No. 1112 of 1969 challenging this order.

Before the High Court two points were raised on behalf of the appellant; ( 1) That the State Transport Authority should have heard the appellant before calling upon him to surrender the counter-signature and the Secretary of the State Transport Authority had no power to issue the impugned endorsement; (2) As the permit had been granted to the petitioner in pursuance of an inter-State agreement, the State Transport Authority in Mysore had rightly granted the counter-signature and the counter-signature could not be revoked later.

The first point is not raised before us. Regarding the second point the High Court held that "a scheme under Chapter IV-A (of the Act) will override any agreement including an inter-State agreement.

Unless such scheme itself exempts permits granted in pursuance of inter-State agreements such permits will also be 5Ubject to the scheme." The High Court further held that "as the Kolar Scheme does not exempt permits granted in pursuance -0f inter-State agreements, the petitioner cannot claim countersignature of his permit when the operation of his stage carriage in this State is inconsistent with the scheme."

Before us the learned counsel for the appellant, Mr.

Ram Reddy, has raised Kour points : ( 1) As the appellant is an existing permit holder within clause ( d) of the Scheme, the counter-signature cannot be revoked;

(2) Assuming that the appellant does not come under clause (d); the counter-signature should not be revoked. it could only be modified with the condition that the appellant should not pick up or drop passengers on the overlapping portion of the route; (3) that inter-State agreements override the provisions of Chapter IV-A of the Act, and ( 4) that the scheme imposing total exclusion of private carriers offends the provisiO!n's of Art. 301 of the Constitution. ·

Regarding the first point, the learned c0unsel urges that the expression "existing permit.holder" in clause (d) of the Scheme has to be interpreted as if ihe scheme is read on January 1, 1969 when orders under s. 68F(2) of the Act came into effect. He

refers to the fdllowing passage in the otder of the Regional Transport Authority, dated Dece1!1ber 30, 1968 :

"Further we have resolved to give effect to the Approved Scheme of Kolar Scheme with effect from 1-1-1969 in accordance with Section 68F(2) and resolved to take the ; following action under Section 68F(2) of the M.V. Act 1939 (as appended hereto)."

It seems to us that this is not a correct way of interpreting the Scheme. The scheme as approved, was published in the Government Gazette under s. 68D(3) on January 25, 1968, and

on March 1, 1968, the Mysore undertaking applied under s. 68 F ( 1) to operate buses from January 1968 or a later date. As held by this Court in Abdul Gafoor v.

State of Mysore(') "when a scheme prepared and published under s. 68-C has been approved and an application has been made in pursuance of the scheme and in the proper manner as specified in Ch. IV nothing more remains to be decided by the Regional Transport Authority and it has no option to refuse the grant of the permit"

and "when taking action under s. 68-F ( 1) the Regional Transport Authority does not exercise any quasi-judicial function and acts wholly in a ministerial capacity." It seems to us that even if the date of publication may not be the appropriate date-we do not decide that it is not an appropriate date-atleast the date on which th.~ transport undertaking applies under s. 68F(l) for a pennit must be the date with reference to which the expression "existing permit holder" must be interpreted. If thi:i is the crucial date, then ii is quite clear that the appellant was not an existing permit holder because he did not obtain his countersignature till July 1968.

The observations of Raghubar Dayal, J. in Sri Satyanarayana Transports (P) Ltd. Guntur v. Andhra Pradesh State Road Transport Corporations(') do not assist the appellant.

In that case the Court was dealing with the objection that it was the duty E of the Road Transport Corporation to furnish the date of implementation of each scheme as a part of the proposal, the date being a material particular. In this connec!ion the Court observed :

"The question whether the State Government can fix a date or not is not for determination in this appeal and we do not express any opinion on that point.

Suffice it to say that the Regional Transport Authority has the power to fix a date after the scheme has been approved by the State Government, as it is that authority which has, under s.68F, to issue a permit to the State Transport Undertaking for plying motor vehicles and to cancel existing permits. The date up to which th.e existing permits are to continue and the date for the State Transport Undertaking to commence plying motor vehicles should be such that there be a continuity of transport services on the notified route and that there be no dislocation of transport arrangements."

The Court was not considering the crucial date for the purpose of interpreting the expression "existing permit holder" in a scheme.

(I) [1962] I S.C.R. 909.

(2) Civil Appeal No. 347of1961 ; judgment on October 3, 1961.

Apart from that the appellant must fail on the ground that he was not a permit holder at all even if the crucial date be January 1, 1969.

His counter-signature must be deemed to have lapsed when the High Court dismissed the writ petitions in which the Kolar scheme had been stayed on October 7, 1968. In our opinion the order of the Regional Transport Authority granting the counter-signature "subject to the decision of the High Court of Mysore about thevalidity of the Nationalisation Scheme of Kolar Pocket," in the context which we have reproduced above, me'ims that if the writs failed the counter-signature would automatically lapse.

It will be recalled that this Court held in The Samrath Transport Co. v. The Regional Transport Authority(') that the Regional Transport Authority is within its rights not to entertain an application if the Scheme had been approved and published.

This Court observed :

"The Regional Transport Authority is authorized for the purpose of giving effect to an approved scheme to refuse to entertain an application for renewal of any other permit.

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, the application for renewal cannot be entertained."

The Regional Transport Authority must have been aware of this and it must be because of the stay order that the counter-signature was granted to the appellant by it. ·

In view of our decision that the appellant's counter-signature lapsed when the writ petitions were dismissed, the second point does noi arise.

Regarding the third point, we were unable to appreciate how an inter-State agreement overrides the provisions of Chapter IV-A. The inter-State agreement is not law and to hold that an inter-State agreement overrides Chapter IV-A would be to completely disregard the provisions of s. 68 B of the Act which provides 1hat "the provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law." In this connection reference was made to Art; 162 and Art. 298 of the Constitution.

But we were unable to appreciate what relevance these articles

(I) [1961) 1 S.C.R. 631 at 639.

have to the point at issue. Assuming that a State has power to enter into agreement with another State in exercise of its executive powers under Art. 162, and under Art. 298 it can carry on trade or business, we are unable to see what light these facts throw on the question before us.

We stopped the learned counsel from developing the fourth point because this point was not taken up in the High Court.

In the result the appeal fails and is dismissed. In the circumstances there will be no order as to costs in this Court.

G.C.

Appeal dismissed.