Sindhi Sahiti v. Madhya Pradesh

86 CO-OPERA A B ##### c D E F· . - -- . G H i L SINDHI SAHITI MULTIPURPOSE . TRANSPORT _Motor- Vehicles 'Act,·_ 1939 _Chapter_ _IV·A,_ _Scheme ·under,_ _Whether open_ _talconstitutional. challenge-S •_ . 68D.- _objectionJ_ _[1]_ _against_ _scheme,_ _scope of., . .,,_ _ . . The Government. of l\la<;lhya Pradesh .proposed to pass scheme No. 9·~1. reg3.rding the. nationalisation of road transport. .The scheme· was approved and notified in the State Gazette. after the appellant's objections made under section 68D of the ~lotor Vehicles-Act •. 1939,--had been heard ... The appellant filed a writ petition' in the 1 High Court _challenging ·the _Government's rejection1of his <>bjec1ons, and also impeaching the scheme as published in the gaz.ette.- The High Court dismissed the petition holding that, as Chapter IV-A of the Act has been included as Entry 125 in the Ninth Schedule to the Constitution. the :Scheme cannot be challenged. _j._ - Dismissing the appeal the Court, ###### . - -·, ",, - - ./., __ ; .. HELD: 1. ;Though Chapter IV-A of the Act is not open-to any· constitutional. challenge, it is open to any . aggrieved· person to challenge any scheme on the ground that it is not a valid scheme as required by the provisions of Chapter IV-A of the 'Act.' [87 CD]· . ' · .. - ··'- '-·- ··· ,· 1 ' ''; ~ "'·, -. . •t -',I .•. _c·,_,, .~) :'; ·,_~- 2 ... Under section 68D of the Act the only Scope for objection is whetb.er the scheme is efficient and adequate and not \Vhether-· exclusion is comp1ete or partial. [91·A-B) - "· _,, - - ...•,.·. , •• ) . " '' -f I-, _e_ ( •--- ~ ' - . ' ', .. . '.' - - .. ' - _:._ - ' j ~ .' .' • ~ ~' t Objections _are confined. only _1 to the, four~ grounds, of,efficiency __ .adeQ\,lacy, economy and proper coordination of road transport service. There was never any objection to the Scheme on exclusion relatel.d t.o any of the!e grounds. [90 D•E},-._ i _r_ ' ~ ' < • - ' • ~ '•, _('I_ _.J_ _ca-Pita!_ _M1:11ipUrP0Se_ Coope~litive · SO~iety _Bhopa'l_ _and_ 10~s. v. _The State_ _of_ _M.P._ & _Ors._ [1967) 3 S.C.R. 329, applied. '· -,,, · ;. _H. C. Narayanappa_ & _Ors._ v. _The State_ _of Mysore_ & _Ors.,_ [1960) 3 S C.R. 742, referred to: - _ .. - _ . _f_ _4_ -~, .:~'. cML. APPELLATE JURISDICTION: Civil Appeal No. 1166 of ##### 1!176.-. . ' ·. · ·· ..,. ·'' ·-""... r _!._ 'Appeal by Spe~W Leav'e' fr;;n the J~df;merit iirid Order datef u;e · .h. 16th September, 1976 ·of the Madhya Pradesh High Court in Misc. Petition No. 1004 of 1974. _M. N. Phadke, S._ _Q._ _Hasan_ and _A. C._ _Ratnaparkhi_ for the appe- llant. . . ' ' . . -· rf _Ram Panjwani, H._ _S._ _Parihar and I. N. Shroff_ for Respondent. No. 1., _Niren De,_ Attorney General, _Rameshwar Nath_ and _Y._ _B. De•ai,_ ## for Respondent No. 6. . The Judgment of the Court was · delivered by • [j., ] RAY, C. J .-This appeal is by special leave from the judgment dated 16 September, 1976 of the High Court of Madhya Pradesll. . TIVE SOCIETY LTD. -.. _v._ _·4-_ - ~'·· _·-•4_ STATE OF MADHYA PRADESH & ORS. ######, Nf!vember, 16, 197p ... : I j [A. N. RAY, C. J., M. H. BEG AND JASWANT SINGH,. JJ.] ###### • ~INDHI SAHITI _v._ M~HY~ PRADll~H _(Ray,_ C.J.) 87 The ~P,P.ell~nt m;ide an application under Articles 226 axid 227 -0f the Constitution in the High Court and impeached the order dated 21 September 1974 whereby the Government dismissed the appellant's ctbjections against Scheme No. 9-M relating to Road Transport N;:itionalisation. The appellant also impeached the Scheme as published in the Gazette on 11 October, 1974. A The High Coqrt held tqat in view ~f the fact that Chapter IV-A B of the Motqr Vehicles Act, 19~9 (heremafter referred to as the Act) iS inCJqdect as Entry 125 in the Ninth ·s~h~grile to· t:qe Con~titution the appellant could not challenge tl~e Scheme. The High Court erred in holding that it was not open to the appellant to challenge the Scheme. The Attorney General rightly ###### an4 fairly said that t~e judgment of the fflgh Court couW not be c supported on that grouqd. The High Court failed to appreciate that though Chapter IV-A of the Act is not open to any constitutional challenge it is open to any aggrieved person to challenge any Scheme on the ground that it is JlOt ~ valid Scheme as required by the provisions of Chapter IV-A of the Act. Scheme No. 9-M relating principally to Jabalpur-Sagar and Damoh-Hatta routes was published by the State Transport Under tajdng in the State Gazette on 15 November, 19.63. The Schel)le was ·approved and finally published in the State Gazette on 12 Febru D ary 1965. Under the Scheme which came into force with effect from 2 April, 1965 Jabalpur-Sagar and Damoh-Hatta portions of the routes were reserved for exclusive operation by the State Transport E Unqertaking. The portions Sagar-Bhopal, Rehli-Garhakota, HattaPlpllla, Katangi-Majhouli and Damoh-Chhatarpur via Hirapur were kept for joint operation with existing permit holders with the ~on­ dition that the permit holders with existing permits were not to pick up passengers from and to any station lying between Nohta-AbhanaQarhakota or any other two stations on J abalpur-Sagar road and Bamoh-Hatta and vice-versa. fl The Transport Authorities granted fresh permits covering Abhana· G!:}fh~ota 1:iq1;tion tr.ea~hm it to be a pqfti.on of jpipt OIJer!!tion with qilJ~rs. This action of the Transport A~horities was found to li>e qes411ctiye ef the true intention of Scheme No. 9-M. It thus became pec~ssary to modify S.ch.eme No. 9-J.\1.. The prpposal was then placed before the Board qf the srate Transpqrt Under- G taking referre.d to hereinafter as the Un~ertaking by, the General Mana,ger. T4e Board _pf_ !he Yndertaking c9qsidere,d the matter ;it 'its meeting held on 20 Aµgust 1~73 and pa~sed Resolvtiol). No. 8354 approving the proposal m:~difying Scheme No. 9-M. The Board Resolution directed inclusion of Sagar-Rehli-Garhakota-Jabalpur and Pathari11-Damoh rqutes for exclqsive oper,!ltion by the S,tate Corpora-tior.. Tqe Boar!l direct~d tq~t the Sc)1~111e giving th.e details ~hould H .. be plac,ed before the Board for its approval. in this background Sch.eine No. 9-M giving 'qetai)s wa~ wepared .and the prop0sal was placed before the Board of the Undertaking at the meetil).g held on A B #### c D E F G H 88 SUPREME COURT REPORTS [1977) 2 S.C.R. 29 November, 1973. The Board of the Undertaking approved the proposal. by Resolution No. 1395 and authorised consequential action. Scheme No. 9-M was published in the Official Gazette on 7 December 1973. The Scheme was thereafter considered by the Special Secretary to the State Government in exercise of powers under section 68D of the Act. Under section 68D of the Act persons contemplated in the Act might file objections and the State Government would hear objections and then approve or modify the Scheme. The State Government on 21 September 1974 approved the Scheme after having heard the objections. The approved Scheme was notified in the State Gazette dated 11 October 1974. The approved Scheme came into force with effect from 19 November, 1974. Scheme No. 9-M as approved, after hearing objections, provided in clause (2) that the State Road Transport Services would be provided on the routes of Jabalpur, Sagar and Bhopal regions. In clause (2) of the Scheme 25 routes are set out. Route No. 2 is JabalpurBhopal via Patan, Tendukheda, Damoh, Rehli, Sagar and Raisen. Route No. 3 is Jabalpur-Sagar via Katangi and Damoh. Route No. 4 is Jabalpur-Sagar via Patan, Tcndukheda, IJamoh and Rehli, Route No. 20 is Sagar-Patharia. #### In cal use ( 4) of Scheme No. 9-M it is said that no person other l than the Undertaking will be permitted to provide Roard Transport Services on the routes or portions thereof specified in clause (2) except as provided in caluse ( 5) . In clause ( 5) it is stated that all Road Transport Services will gubject to the provisions made in the subsequent clauses, namely, No. (6) and (7) be provided by the Undertaking exclusively on JabalpurSagar via Katangi, Damoh and Damoh-Hatta via Bangaon roads cover.: ing portions of the routes specified in clause (2). The routes which the Undertaking will operate in conjunction with others are (1) Jabalpur-Patan-Tendukheda-Abhana, (2) Damoh-Patera-Hatta-Panna, {3) Damoh-Hirapur-Tikamgarh and (4) Damoh-Hirapur-Chhatarpur portions of the routes specified in clause ( 2) . In clause (7) of the Scheme is set out a list of permits granted by the Regional Transport Authorities and modified as indicated therein. In Item No. 20 of the list is set out the name of United Transport and in Items 22 and 23 is set out the name of S.S.M. Trading Company, Society. The route of Damoh-jabalpur via Abhana, Patan which was in the name of United Transport Company was modified to remain operative on the route o( Abhana-Jabalpur via Tendukheda, Patan. The route of Sagar-Jabalpur via Rehli, Gerhakota, Abhana, Tejgarh, Patan which had been given to S.S.M. Trading Company was modified to Abhana-Jabalpur via Tendukheda, Patna. It, therefore, appears from the Scheme that the routes ( 1) J abalpur-Patan- Tendukheda-Abhana. (2) Damoh-Patera-Hatta-Panna, (3) Damoh-Hirapur-Tikamgarh, (4) Damoh-Hirapur-Chhattarpur were to be operated by the Undertaking in conjunction with existing permit holders. # _(_ SINDHI SAHITI _V._ MADHYA PRADESH _(Ray, C.J.)_ 89 The appellant under section 68D of the Act preferred objections A to the Scheme. The objections were four in number. First the Scheme is _ma/a fide_ as it is intended "to avert (sic) issuance of permits on these routes to private operators". Second the Scheme is published without the undertaking forming the requisite opinion under section 68C of the Act. Third the Scheme is discriminatory. Two permits of the appellant are proposed to be curtailed whereas 14 permits on Sagar-Rehli-Garhakota route have been left over. Fourth B the Scheme does not fulfil the four-fold tests in section 68C of the Act. The Government heard the objections. The State Secretary .rejected the objections and approved the Scheme on 21 September 1974. The State Secretary held that no _mala fide_ was proved. He also rightly held that nationalisation of Road Transport Service would result in the legal effect of stoppage of issue of permits on the routes mentioned in the Scheme. In short, nationalisation of routes cannot be said to be _mala fide._ The State Secertary found that the undertaking considered the Scheme and formed the requisite opinion under Section 68C of the Act. The State Secretary found that there was no discrimination. There was nothing to prove that similarly situated operators were treated differently. There was no proof that the undertaking knew of the existence of the alleged permit of the appellant or of others. The State Secretary also found that the operators on Sagar-Garhakota-Patharia route were operating because it was not taken for exclusive operation. In other words, the Scheme does not concern the route on which the 14 operators are alleged to be plying. The State Secretary also found that the four purposes in section 68C of the Act were fulfilled. The appellant repeated some of the objections to the Scheme raised before the State Secretary and added new ones. The appellant's contentions here were these. First Scheme No. 9-M which was finalised was not the opinion formed by the undertaking. Second the appellant asked for resolution of the undertaking dated 20 August 1973 and this was not given. Therefore, no opportunity was given to the appellant to r?ise objections under section 68D of the Act. Third, Scheme No 9-M does not fulfil the four-fold purposes, namely, providing (a) efficient, (b) adequate, (c) economical and (d) properly coordinated road transport service as mentioned in section 68C of the Act. Fourth curtailment of route Sagar-Rehli-Garhakota is contrary to clause (5) of the Scheme. Chapter IV-A of the Act contains sections 68-A to 68-I. These provisions in Chapter IV-A are under the heading "Special provisions relating to State Transport Undertakings". #### c D E F G The Scheme recites that the Undertaking formed the opinion that for purpposes of providing efficient, adequate, economical and properly coordinated road transport service provided in clause (2) of H the Scheme, it is necessary in the public interest that the road transport service in relation -to the said routes should be run and operated by the Undertaking in accordance with the Scheme. There is thus in A D E F 90 SUPREME COURT REPORTS (1977] 2 S.C.R. trinsic evidence inherent in the Scheme that the Undertaking formed the opinion for the Scheme. The State Secretary rightly rejected the {!Ontention of the appellant which was repeated here. It a.ppears froµi the order of the State Secretary who heard th,e objectiops of the iippellant against the Scheme that the Secretary Q.ever Jll.!!de an qrder djiecting the Undertaking to produce the resolution dated 20 August, 1973. In the writ petition filed by the appellant in the ~igh Court the appellant stated in paragraph 19 that the State Secretary instead of directing the' Undertaking to produce these documents only observed that the Undertaking might think over the request adding that he might himself call for the said documents", if thought necessary. It also appears from the judgment of the High Court that the proceedjngs before the State Secretary indicated that the appellant's case was argued wjthout any insistence on the production of the resolution. The High Court also noticed that the State Secretary made no such direction. The fact that he made no such direction shows that he found it possible to give the decision without production of it. The contention of the appellant is wjthout any merit. The State Secretary rightly held that the four-fold purposes indicated ii' section 68C of the Act are established. This Court in _Capital_ _Multipurpose Cooperative Society Bhopal_ & _Ors._ v. _The State of M.P._ & _Ors(')_, said that the right of a person to object to the Scheme is to be confine,d only to the four grounds, namely, that the Scheme did not provide (a) efficient, (b) adequate, (c) economical and (d) properly coordinated transport services. The Scheme in the present case amply establishes that it fulfils the four p~rposes mentioned in tl;ie Act. It h11s to be remembered that the Scheme in clause (2) as well as in clause (5) mentions the- exclusive operation of the Undertaking on these routes in the public interest. A mere allegation that the Scheme does not fulfil the purpo~es does not amount to any allegation &Q.d far less any prqof., The appellant laid emphasis on the contention that the appellant's permits in respect of the portion Garhakota to Sagar via Rehli ought not to have been curtailed because the route was not reserved for exclusive operation by the State Tran~port Undertaking under clau~e ( 5). It is a matter of policy as to what routes should be curtailed for the operation of the Scheme. Courts do not judge such policy decisions. The appellai:it's permits on the Garhakota-Rehli-Sagar routes expired on 26 and 30 September, 1976. The appellant has been granted fresh temporary permit on the route which is of conjoint coer ation. This temporary permit was granted to the appellant on 25 Septemb_er, 1976. The appellant has taken advanta$e of it. It has to be shown that unless the appellant is a)lowed,to operate on Sagar-Rehli-Garhakota route the Scheme will nqt be efficient, adequate, e~ono111ic~l and prcmerly cqordinateq. The appe]Jant did not allege and substantiate the case. This case cannot be entertained also for th_e reason th~t it is idle to suggest that the appejlant will have not only .Abqana-Ja~alpur via T~ndukhcda Patan route J?ut also S,2gar Rehl:_G~!ha!<ota _:ou_te as of right. (1) [19,67] 3 S.C.R. 329, SINDHI SAHITI _V._ MADHYA PRADESH _(Ray, C.J.)_ 91 It is not only competent but also conscionable that a Scheme for A nationalisation can be· complete· or partial. · ·The efficiency as wdl as adequacy of the Scheme is advanced by such policy decisions of complete or partial nationalization of routes. _See_ _H._ _C._ _Narayanappa_ & _Ors,_ v. _Thf"_ ~!fife _<>i_ _Mysore_ & _Ors.(')_ Under se~tion 68D of the Act the only scope for objection is \Yhether the Scheme is efficient and adequate and not whether exc!Usion is complete or partial. Objections are confined only to the four gropnds of effi9iency, adequacy, economy B and proper coordination of road transport' service. Exclusion can be attacked op.ly on these four grounds. There was never any objection to the Scheme on exclusion related to any of these grounds. The . Stat~ Secr~J:ary in his order, on hearing the objections, rightly said that the Sagar-Rehli-Garhajrnta-~at4aria route is not to be taken f 0 f eJl:F1u ~~ve oP,ep:~tion bec~use there is ~o ~ention a~ all of t~e route. ·The #### Scheme in clause (5) has spec1fi~ally ment10ned which routes are c for operation by the State Transport Undertaking in conjunctiorr with o$ers. T~e exclusion of the appellant froµi roµ'.te 0n w.b.ich the' appe ~il!lt ha~ earlier operated canriot .be _said to challenge efficieh~y, ·aR~­ qua~y, eCQl!.Omy or proper coor?mat10n. )'•• For these reasons the appeal is dismis~ed. In view of the order <Jf t~~ f!igh Court a~ to. co~ts parties wj!I' pay and bear their own costs. D fy):.R. _Appeal dismissed._ (I) [19,1\0] 3 S.C.R. 7,42.