TMI Blog1961 (12) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... gers or drop them between Kanpur and Chaubepur. His permit was to expire on June 10, 1960. Before the said date, he applied for renewal of his permit, and on May 20, 1960 it was published in the U.P. Govt. Gazette calling for objections. On the same day, the State Government published a notification in the Gazette proposing to nationalise the said route. As the application for renewal could not be disposed of before the expiry of the period fixed in the permit a temporary permit for the route was granted to the appellant. On July 19, 1960 the application for renewal of the appellant's permit was considered by the Regional Transport Authority, Kanpur, and his permit was renewed for three years with effect from July 23, 1966, only in respect of a part of the old route, namely, Chaubepur-Bela-Bidhuna; but under the directions of the Transport Commissioner, the Regional Transport Authority made an endorsement on the renewed permit authorizing the appellant to ply his vehicle between Kanpur and Chaubepur for a period of four months commencing from July 23, 1960. As regards the proposed scheme of nationalization, on June 22, 1960 the appellant filed his objections thereto. The said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner's right to ply on the entire Kanpur-Bela-Bidhuna route under the renewed permit irrespective of the illegal conditions attached thereto or of the illegal scheme for the nationalization of the said route. (g) That costs of this petition may be awarded to the Petitioners as against the opposite parties. On December 2, 1960 the High Court made an interim order directing the State of Uttar Pradesh not to interfere with the petitioner operating his vehicle on Kanpur-Bela-Bidhuna route in accordance with the terms of his permit. To that writ petition, the State of Uttar Pradesh, the Regional Transport Authority, and the Secretary to Regional Transport Authority, were made respondents. The respondents opposed the petition. On March 6, 1961 a Division Bench of the High Court, accepting the contentions raised by the respondents, dismissed the petition. Hence the appeal. Writ Petition No. 205 of 1961 is filed in this Court by another operator under Art. 32 of the Constitution. He was plying his stage carriage on the Jaunpur Shahganj route in Uttar Pradesh under Permit No. 430, which was valid upto March 15, The State Government published in the Gazette dated July 23, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and prepare a scheme for nationalisation and publish it in the manner prescribed thereunder, but in the present cases the State Government initiated the schemes and, therefore, the schemes were not validly made; (2) As neither the objection to the proposed scheme were heard nor were they approved by the State Government as they should be under s. 68D of the Motor Vehicles Act, the schemes were invalid; (3) The Regional Transport Authority acted illegally in curtailing the period of renewal-this question arises only in the appeal; (4) The Regional Transport Authority had not applied its mind in dealing with the renewal application but mechanically followed the provisions in the proposed schemes and, therefore, its order was bad; (5) Even after the approval of the nationalisation schemes, the State owned buses were required to apply for and get permits under the Act and plying of buses by the State without permits was illegal; and (6) The Secretary to the Regional Transport Authority had no jurisdiction to issue an order under s. 68F (2) of the Motor Vehicles Act, since under the said section only the Regional Transport Authority had the power to do so-this question arises only in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made clear by s. 68C whereunder it is the State transport undertaking that will have to form the requisite opinion. This is further elucidated by the fact that under s. 68C of the Act the state transport undertaking is required to publish the proposed scheme in the Official Gazette and also in such other manner as the State Government may direct. This distinction between the two entities is further made clear by s. 68D(2) whereunder the State Government has to hear the representatives of the State Transport undertaking. Briefly stated, under the said provisions, a statutory authority called the State transport undertaking is created it is authorised to initiate a scheme of nationlisation of road transport, the aggrieved parties are given opportunity to file objections thereto, and the State Government is empowered to hear both the parties and approve or modify the scheme, as the case may be. Counsel for the appellant contends that the underlying scheme of the Act cannot be worked out unless a clear distinction is maintained between the State transport undertaking and the State Government, for, if one is equated with the other, the State Government would become a judge of its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was defined to mean the road transport department of the State providing road service. After the Andhra Pradesh State was formed, that department initiated the scheme and this Court held that the said department clearly fell within the definition of state transport undertaking. This Court observed in that case: The State Government maintained the department for providing road transport service and therefore the department clearly falls within the definition of State Transport Undertaking. If a state directly runs an undertaking, it can only be through a department. In law there cannot be any difference between an undertaking run by a department of a State Government and that run by the State Government. In either undertaking is run by the State and that undertaking is a State transport undertaking within the meaning of s. 68C of the Act. The opinion must necessarily be formed by somebody to whom, under the rules of business, the conduct of the business is entrusted and that opinion, in law, will be the opinion of the State Government. It is stated in the counter affidavit that all the concerned officials in the Department of Transport considered the draft scheme and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was averred in paragraph 25 That no State Transport Undertaking having been constituted the State Government initiated the scheme and heard its own representatives on 13.8.1960. The petitioner has bonafide belief that the Joint Secretary to the Government of Uttar Pradesh (Judicial Department) who heard the objections acted with bias against the petitioner. Even in the petition for special leave to appeal to this Court, no such objection was raised. There is also no reference to any such contention in the judgment of the High Court. The validity of the scheme on this ground is sought to be raised for the first time in this Court, and, according to the settled practice of this Court the appellant except in exceptional circumstances and there are none such in this case-is not entitled to raise this argument for the first time at the hearing in this Court. It was urged in the course of the argument that by Rule 7 of the State Land Transport Services Development Rules 1958, which at the material time read as follows: (1) The objections received shall be considered by the judicial Secretary to Government of U.P. or an officer of his department, not below the rank of Joint Secretary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1960. But if the permit was validly terminated from the date specified, he will not be entitled to relief even if he had on the date of the petition a subsisting right. Ground No. 2 must therefore fail. Grounds 3 and 4 of the appellant that the Regional Transport Authority acted illegally in curtailing the period of renewal and that, in any event, it did not apply its mind in dealing with the renewal application but mechanically followed the provisions of the scheme may now be considered. 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. The order passed by the Regional Transport Authority was purely consequential on the scheme, and if the scheme is not open to challenge, orders consequential thereon will not also be open to challenge. We are supported in this view by the observations of this Court in Abdul Gafoor: Proprietor, Shaheen Motor Service v. The State of Mysore (1) that: It appears to us that when deciding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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