TMI Blog2010 (7) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... d April 16, 1999 and for consequential reliefs. The Division Bench of Allahabad High Court heard these writ petitions together and by a common judgment dated April 23, 2002 dismissed all the writ petitions. It is from this common judgment that these three appeals by special leave arise. Facts 3. The brief facts in relation to these appeals may be set out first. A. Appeal by Rasid Javed and others 4. The appellants in this appeal claim that they have been operators on Saharanpur-Karnal route (inter-State route) via Jandhera - Rampur - Gangoh - New Yamuna Bridge. In the Notification published on April 16, 1999 under Section 102(1) of the Motor Vehicles Act, 1988 (for short, 'the 1988 Act'), the State Government proposed to modify the scheme notified on May 29, 1993 by providing that permit holders bearing Nos. 168/94, 169/94. 170/94, 171/94, 172/94, 173/94, 222/94, 233/94, 23/95, 24/95, 25/95, 739/89, 242/94, 764/90, 787/90, 772/90, 800/90 and 784/90 shall be allowed to operate their buses along with the Uttar Pradesh State Road Transport Corporation (UPSRTC) on Saharanpur-Karnal route (via Jandhera-Rampur-Gangoh-New Yamuna Bridge) provided that they get t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1939 ('the 1939 Act' for short) in respect of the inter-State route viz; Saharanpur - Delhi proposing to authorize the State Transport Undertaking (STU) of Uttar Pradesh to operate stage carriages on the said route to the exclusion of all other operators. 8. On September 29, 1959 the State Government approved the said draft scheme and published it under Sub-section (3) of Section 68D of 1939 Act (hereinafter referred to as 'the 1959 Scheme'). The 1959 Scheme provided 50 (25 each way) State Road Transport Services or more as may appear necessary from time to time on that route or portion thereof from November 1, 1959 or thereafter. It was provided in the approved scheme that the persons other than the STU will not be permitted in plying any road transport service on the said route or portion thereof except as mentioned therein. 9. A group of writ petitions, one by 32 operators and the other by 18 operators was filed before the High Court of Allahabad questioning the validity of the 1959 Scheme. The High Court vide its judgment dated October 30, 1961 directed the State Government not to enforce the 1959 Scheme against 32 operators who had filed the first batch o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice v. Govt. of U.P. and Anr. (1985) 4 SCC169. The 1988 Act and matters before this court in respect of Saharanpur-Delhi route 13. While the said draft scheme was pending, the 1939 Act was repealed and the 1988 Act came into force with effect from July 1, 1989. 14. It appears that immediately after the 1988 Act came into force, two things happened viz; (one) some operators were granted permits for Saharanpur to Ghaziabad via Shahdara routes and (two) the Hearing Authority held that the draft scheme published on February 13, 1986 by the UPSRTC under the 1939 Act had lapsed by operation of Section 100(4) of the 1988 Act. Ram Krishna Verma and few others filed writ petitions in the High Court of Allahabad challenging the grant of permits for Saharanpur to Ghaziabad via Shahdara route while the UPSRTC challenged the order of the Hearing Authority by a separate writ petition. The writ petition filed by the UPSRTC was dismissed by Allahabad High Court on March 16, 1990. The writ petitions filed by Ram Krishna Verma and others were also dismissed by the Allahabad High Court on July 23, 1990. Special leave petitions were filed against the aforesaid judgments before this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proving the notified proposed modification and the objections presented by the UPSRTC and other objectors were dismissed. 20. The State Government, however, by a Notification dated April 15, 2000 in exercise of the powers under Section 102 of 1988 Act read with Section 21 of General Clauses Act, 1897 rescinded the Notification dated April 16, 1999. Main submissions of the parties 21. Mr. Dinesh Dwivedi, learned senior counsel led the arguments on behalf of the appellants. He argued that it was not open to the State Government to withdraw the Notification dated April 16, 1999 after it had been approved by the Hearing Authority by his order dated October 11, 1999. According to him, the order passed by the Hearing Authority on October 11, 1999 is the order of the State Government under Section 102(1) and (2) of the 1988 Act. It is so because in the draft Notification dated April 16, 1999, Shri Zamirudeen, Special Secretary and Additional Legal Remembrancer was appointed as the Authority to hear the objections and he was acting as the State Government under the U.P. Rules of allocation of business. In this regard, learned senior counsel placed reliance on three decisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary to law. Learned senior counsel submitted that the appellants have been granted permits validly in the year 1989 which have been renewed in the year 1994 and the High Court overlooked the fact that revocation of permits by virtue of the decision of this Court in Ram Krishna Verma (1992) 2 SCC 620 implied only revocation to the extent of only overlapping portion of Delhi-Saharanpur route. He, thus, submitted that appellants' permits are valid as far as non-notified portion is concerned. 24. Mr. Nagendra Rai, learned senior counsel appearing for the appellants in Civil Appeal No. 5951 of 2002 adopted the arguments of Mr. Dinesh Dwivedi and submitted that the 1959 Scheme stood modified by the 1993 Scheme published on May 29, 1993 and that for the same route, there could not be two approved schemes. He submitted that the approval order dated October 11, 1999 by the Hearing Authority is not passed by virtue of any delegation of power nor any right of appeal is available against the said order and as such the order dated October 11, 1999 is a final order of the State Government in terms of Section 102 of 1988 Act and required no publication in the Official Gazette. 25. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State Of M.P. And Ors. (1996) 8 SCC 38. Learned Counsel for the UPSRTC also contended that the appellants did not have permits on the route in question either in 1959 or 1986 or even in 1993 and that the permits given to the private operators under the draft scheme of 1986 as well as under the 1993 scheme have been quashed by Allahabad High Court and that appellants have no permits at all. She submitted that a total of 124 permits have been granted to UPSRTC on Saharanpur-Delhi route which are valid till the scheme remains in force and that the UPSRTC has been plying exclusively on the Saharanpur-Delhi route and there is no operation by the private operators. Learned Counsel for the UPSRTC placed reliance upon the decisions of this Court in Mysore State Road Transport Corporation v. Mysore State Transport Appellate Tribunal (1974) 2 SCC 750; C.P.C. Motor Service, Mysore v. State of Mysore and Anr. AIR 1966 SC 1661; Adarsh Travels Bus Service and Anr. v. State of U.P. and Ors. (1985) 4 SCC 557 and Karnataka State Road Transport Corporation v. Ashrafulla Khan And Ors. (2002) 2 SCC 560 and submitted that no private bus can be allowed to overlap fully or partially on nationalized ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Road Transport Corporation that any route or area either wholly or partly can be taken over by a State Undertaking under any scheme published, approved and notified under the provisions of Chapter IV-A of 1939 Act and that if the scheme prohibits private transport operators to operate on the notified area or route or any portion thereof, the Regional Transport Authority (RTA) cannot either renew the permit of such private operators or give any fresh permit in respect of a route which overlaps the notified route. 32. That the scheme framed under Section 68-C of 1939 Act is a 'law' is settled by a Constitution Bench decision of this Court in the case of H.C. Narayanappa and Ors. v. State of Mysore and Ors. (1960) 3 SCR 742. This position has been reiterated by this Court in Ram Krishna Verma (1992) 2 SCC 620. H.C. Narayanappa (1960) 3 SCR 742 also holds that the scheme framed under Section 68-C of 1939 Act excludes the private operators from notified routes or areas. (B) The status of appellants' permits 33. Insofar as Saharanpur-Delhi route is concerned, it became a notified route under the 1959 Scheme. The controversy regarding the 1959 Scheme reached t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oute which overlaps the notified route, the appellants' permits stood cancelled and in any case these permits lost its legal significance and sanctity. In this backdrop, the whole exercise undertaken by the State Government under Sub-section (1) of Section 102 of 1988 Act proposing to modify the 1993 Scheme relating to Saharanpur - Delhi notified route was misconceived as the permits specified in that Notification did not exist in law. The finding of the High Court in the circumstances that the modification proposal dated April 16, 1999 proceeded on the misconception that petitioners (appellants herein) were holding permits on the concerned route cannot be said to be unjustified. Moreover, in the absence of any proposal to modify the 1959 Scheme, the modification proposed in the 1993 Scheme vide Notification dated April 16, 1999 was meaningless. The contention that the 1959 Scheme merged in the 1993 Scheme has no merit. It is true that 1959 Scheme was approved under 1939 Act and even after repeal of 1939 Act by 1988 Act, the State Government was competent to prepare fresh scheme by following the procedure contemplated in Sections 99 and 100 or modify that scheme under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being less than thirty days from such publication in the Official Gazette, and the time and place at which any representation received in this behalf will be heard by the State Government. 35. A close look at Section 102 would make it manifestly clear that modification of the approved scheme may be done by the State Government in the public interest after giving opportunity of being heard in respect of proposed modification to the STU and the persons likely to be affected by the proposed modification. The modification proposed is required to be published in the Official Gazette and in one of the newspapers in the regional languages circulating in the concerned area under Section 102(2). On behalf of the appellants, it was contended that in the proposed modification published in the Official Gazette on April 16, 1999, the authority to hear the objections/representations was given to Shri Zamirruddin, Special Secretary and Additional Legal Remembrancer and the said Hearing Authority after hearing the objections of the affected persons and the UPSRTC approved the proposed modification and rejected the objections received in this regard and the approval by the Hearing Authority of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to approve the proposed modification or modify the proposed scheme. (D) Invocation of Section 21 of General Clauses Act: whether valid 37. Having already held that the order of the Hearing Authority dated October 11, 1999 is in excess of the authority given to him and that the said order has no legal effect, we do not find that there was any impediment for the State Government in exercising its power under Section 102 of the 1988 Act read with Section 21 of the General Clauses Act, 1897 to rescind the Notification dated April 16, 1999. 38. Section 21 of the General Clauses Act, 1897 provides thus: Section 21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.-Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction, and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. 39. The aforesaid provision came up for consideration before the Constitution Bench of this Court in Kamla Prasad Khetan and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to indicate that the order dated October 11, 1999 of the Hearing Authority was communicated to the appellants or any of the affected parties. For all these reasons, the only conclusion that can be drawn is that the order dated October 11, 1999 is not an order as contemplated under Section 102(1) of the 1988 Act by the State Government approving the modification proposed in the Notification dated April 16, 1999. 42. In view of our finding that the order of the Hearing Authority dated October 11, 1999 cannot be treated as an order of the State Government under Section 102(1) of the 1988 Act, it is not necessary to consider the question as to whether the order of the State Government under Section 102(1) of the 1988 Act is required to be published in the Official Gazette or not. 43. The contention of Mr. P.N. Gupta, learned Counsel for some of the appellants that the opportunity of hearing was required to be given to the appellants before issuance of Notification dated April 15, 2000 has no merit for more than one reason. For one, this contention is founded on the premise that the order of the Hearing Authority dated October 11, 1999 is the order of the State Government. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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