Rasid Javed & Ors vs State Of U.P. & Anr

the Notification dated April 15, 2000 issued by the State of U.P.

rescinding the earlier Notification dated 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

2 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 their permits counter-signed by State of Haryana for

plying their buses in that State. By the said Notification,

objections were invited from the UPSRTC and the persons

likely to be affected by the proposed modification and Shri

Zamirruddin, Special Secretary and Additional Legal

Remembrancer, Uttar Pradesh was appointed Hearing

Authority to hear and decide the objections that may be

received. Pursuant to the said Notification, objections were

received and the Hearing Authority after hearing the affected

parties held in its Order dated October 11, 1999 that proposed

modification be approved, i.e. private operators be allowed to

3 ply their vehicles. According to the appellants, they are covered

by the permits mentioned at Sl. No. 1 [column 4 - (c)(iii)] of the

Schedule to the Notification dated April 16, 1999.

B. Appeal by Masood Ahmad and others

5. The appellants in this appeal claim to be permit

holders in respect of Saharanpur-Loni route via Shamli-

Baghpat-Marginal Bandh Road - ISBT Delhi. According to

them, they are covered by Sl. No.1 [column 4 - (c)(i)] of the

Schedule to the Notification dated April 16, 1999. By the said

Notification, the approved scheme dated May 29, 1993 was

sought to be modified and it was proposed to allow these

operators to operate their buses along with the UPSRTC on

Saharanpur-Loni via Shamli-Baraut-Baghpat-Marginal Bandh

Road - ISBT Delhi route.

C. Appeal by Raghunandan Goyal and Others

6. The appellants claim to have been granted inter-

State permits by the State Transport Authority (STA), Uttar

Pradesh for an inter-State route known as Meerut-Chandigarh

via Baraut-Shamli-Gangoh-Saharanpur-Sarsawa-Yamuna

4 Nagar-Ambala. Their case is that in the draft modification

published in the Notification dated April 16, 1999, their permits

are mentioned at Sl. No. 1 [column 4 - (c)(ii)] of the Schedule

thereof. By the said modification, it was proposed to allow

these operators to operate their buses along with the UPSRTC

on Meerut-Chandigarh via Baraut-Shamli-Gangoh-Saharanpur-

Sarsawa-Yamuna Nagar-Ambala route provided that the permit

holders get their permits counter-signed by the State

Government of Haryana for plying their buses in that State.

Saharanpur-Delhi route (the 1959 Scheme) and previous litigation

7. On February 26, 1959, a draft scheme was

published under Section 68-C of the Motor Vehicles Act, 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 68-D of 1939 Act (hereinafter referred to

5 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 of writ petitions and it

was directed that the State Government should hold a fresh

enquiry into the question whether the scheme should be

approved or not. Similar judgment was passed in the other

batch of writ petitions relating to 18 operators on February 7,

1962.

6

10. The aforesaid judgments of Allahabad High Court

were affirmed by this Court in Jeewan Nath Wahal v. State

Transport Appellate Tribunal (C.A. No.1616 of 1968) decided

on 03.04.1968. In Jeewan Nath Wahal, it was held that the

1959 Scheme was operative and not affected and its

enforcement was prohibited against 50 operators only who

approached the High Court. It was further held that the STU

has the exclusive right to ply its vehicles on the notified route

(Saharanpur - Delhi route).

11. Two writ petitions, one by Shri Chand1 and the other

by Citizen Council for Public Service were directly filed before

this Court under Article 32 of the Constitution in the year 1985

challenging the validity of proceedings which were pending

before the State Government pursuant to a draft scheme

published on February 26, 1959. This Court allowed these writ

petitions on August 23, 1985 by the following order :

"............In the instant case the delay is in the order of 26 years. In view of the above decisions we allow these writ petitions and quash the impugned scheme published on February 26, 1959 and the proceedings which have taken place till now pursuant thereto and 1 Shri Chand v. Govt. of U.P., Lucknow & Ors.

Citizen Council for Public Service v. Govt. of U.P. & Anr. [(1985) 4 SCC169]

7 direct the State Government not to proceed with the hearing of the matter. It is now open to the State Transport Undertaking of Uttar Pradesh to publish a fresh draft scheme under Section 68-C of the Act if it is of opinion that it is necessary to do so. We, however, permit the State Transport Undertaking to run the stage carriage vehicles which it is now running on the route in question under permits issued pursuant to the scheme which is now quashed, till February 28, 1986 or till they are replaced by temporary permits to be issued under sub-section (1-A) of Section 68-F of the Act after the publication of a fresh draft scheme or by permits issued under Chapter IV of the Act, whichever is earlier."

12. Pursuant to the aforesaid decision in Shri Chand's

case1, the UPSRTC published a draft scheme on February 13,

1986 for 39 routes; Saharanpur - Delhi (Saharanpur-Nanauta-

Thanabhawan-Shamlikandhla - Baraut - Baghpat - Loni-Delhi)

being the 1st Item in the draft scheme.

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

8 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 in which leave was granted. These

appeals (Ram Krishna Verma and Ors. v. State of U.P. & Ors.2)

were allowed vide judgment dated March 31, 1992. This Court

held that the nationalization of Saharanpur - Delhi route by the

1959 Scheme is operative to the total exclusion of every

operator except UPSRTC and 50 operators whose objections

were upheld by the High Court. In the operative order, this 2 (1992) 2 SCC 620

9 Court quashed the permits granted to the private operators

under Section 80 of the 1988 Act on the respective routes,

parts or portions of the nationalized routes or February 13,

1986 draft scheme.

15. After decision of this Court in Ram Krishna

Verma2, the competent authority approved the Scheme and

directed the same to be published. On May 29, 1993, the

approved scheme ( for short, `the 1993 Scheme') was

published in the Gazette. At Serial No. 1 of the 1993 Scheme

is Saharanpur-Delhi route.

16. The controversy with regard to the extent and effect

of the draft scheme dated February 13, 1986 and the 1993

Scheme vis-`-vis the 1959 Scheme relating to Saharanpur-

Delhi notified route reached this Court on more than one

occasion. We have noticed some of these decisions in earlier

part of the judgment and shall consider this aspect further a

little later. Suffice it to state here that the 1993 Scheme came

to be published pursuant to decision of this Court in Ram

Krishna Verma2.

1 Present controversy

17. By a Notification published on April 16, 1999, the

State Government, in exercise of the powers under sub-section

(1) of Section 102 of the 1988 Act proposed to make

modification in the 1993 Scheme to the extent mentioned in

column 4 of the Schedule appended thereto. In respect of

Saharanpur-Delhi route modification proposed was as follows :

"Sl. Notification Name of the Modification proposed No. No. and date notified route By which the in which the Routes were modification Notified. Is proposed.

1. 2. 3. 4.

1. No. 1635/30.2.93 Saharanpur-Delhi & 38 In the said scheme after 565'85 dated Delhi & 38 Clauses (b) of the May 29, 1993 other routes following clause shall be inserted, namely :

(c) Notwithstanding anything contained in clauses (a) and (b) the private bus operator;

(i) holding permit numbers P.S.T.P./MPMV 1/89, 2/89, 3/89, 4/89, 5/89, 6/89, 7/89, 8/89, 9/89, 10/89, 11/89, 12/89, 13/89, 14/89, 16/89, 17/89, 18/89, 19/89, Shall be allowed to operate their buses alongwith U.P.S.R.T.C.

1 on the route namely, Saharanpur-Loni Via-

Shamali-Baraut-Baghpat

-Marginal Bandh Road-

ISBT Delhi.

(ii) holding permit numbers P.S.R.T.P. 303/89, P.S.T.P. 304/89 and P.S.T.P. 305/89, shall be allowed to operate their buses alongwith U.P.S.R.T.C. on the Route namely Meerut-

Chandigarh via Baraut-

Shamli-Gangoh-

Saharanpur - Sarsawa-

Yamuna - Ambala; and

(iii) holding permit numbers 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, 784/90, shall be allowed to operate their buses alongwith U.P.S.R.T.C. on the route namely :-

Saharanpur-Karnal via Jandhera-Rampur-

Gangoh - Nea Yamuna Bridge :

Provided that the permit Holders sub-clauses (ii) and

(iii) above shall get their permits counter-signed by the State Government of Haryana for plying their buses in the State of Haryana. "

1 18. The Notification provided that the UPSRTC and

any other person likely to be affected by the proposed

modification may make representations within 30 days from the

date of publication of the Notification in the Gazette and that the

representations so received will be heard by the Hearing

Authority Shri Zamiruddin, Special Secretary and Additional

Legal Rememberancer, Uttar Pradesh.

19. In pursuance thereof various representations were

received. The Hearing Authority after hearing the concerned

parties who made the representations passed an order on

October 11, 1999 approving 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.

1 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 of this Court, viz., Samsher Singh

v. State of Punjab and another3; Capital Multi-purpose Co-

operative Society Bhopal and others v. State of M.P. and

others4 and A. Sanjeevi Naidu, Etc. v. State of Madras and

3 (1974) 2 SCC 831 4 (1967) 3 SCR 329

1 another5. Mr. Dinesh Dwivedi also submitted that decision

under Section 102(1) of the 1988 Act has to be by the same

Authority who heard the objections and there could not be

divided responsibility of a quasi judicial act. He sought support

from a decision of this Court in Gullapalli Nageswara Rao and

others v. Andhra Pradesh State Road Transport Corporation

and another6). He further argued that once the decision has

been taken by the Competent Authority then the State

Government cannot modify that decision because it is a quasi

judicial decision. He placed reliance on M/s. Nehru Motor

Transport Co-operative Society Ltd. & Ors. v. State of

Rajasthan & Others7. In the alternative, learned Senior

Counsel submitted that even otherwise the material on record

demonstrated that the order of modification dated October 11,

1999 was approved by the Principal Secretary of the

Department.

22. Mr. Dinesh Dwivedi, learned senior counsel would

also contend that approval order passed under Section 102(1) 5 (1970) 1 SCC 443 6 AIR 1959 SC 308 7 AIR 1963 SC 1098

1 and (2) was not required to be published in the Official

Gazette. He invited our attention to Section 68-E of 1939 Act

and Sections 100(3) and 102 of 1988 Act to indicate the

difference in the two provisions. He further submitted that

Section 21 of the General Clauses Act, 1897 is not at all

attracted as the power that was sought to be exercised has

been expressly provided in Section 102 of the 1988 Act.

23. While dealing with the effect of the draft proposal

dated April 16, 1999 and whether the 1993 Scheme

superseded the 1959 Scheme, Mr. Dinesh Dwivedi submitted

that there could not be operation of two notified schemes in

respect of Saharanpur-Delhi route and consequently the

judgment of this Court in Ram Krishna Verma2 has to be read

in the light of the provisions of law and not in contravention of

the provisions of law. Learned senior counsel submitted that

the 1959 Scheme has been superseded by the 1993 Scheme

and that is what the State Government also understood. He

also assailed the judgment of the High Court and submitted that

writ petitions have been dismissed on the grounds contrary to

1 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 Verma2 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

1 Government in terms of Section 102 of 1988 Act and required

no publication in the Official Gazette.

25. Mr. P.N. Gupta, learned counsel while adopting the

arguments of Mr. Dinesh Dwivedi and Mr. Nagendra Rai

contended that once the final order of approval was passed on

October 11, 1999, the proposal for modification as provided in

Notification dated April 16, 1999 could not have been cancelled

or rescinded as the draft Notification dated April 16, 1999

merged in the final order dated October 11, 1999. According to

him, the proposal for modification of the approved scheme

under Section 102 of the 1988 Act and its approval by the State

Government are not legislative in nature and consequently

Section 21 of the General Clauses Act, 1897 has no

application. Learned counsel would submit that even if it be

assumed that the impugned Notification amounts to modify the

approved scheme and Section 21 of the General Clauses Act

has application, in that event the impugned Notification dated

April 15, 2000 is vitiated because it has to be issued in the

same manner as provided under Section 102 of 1988 Act which

1 was not done. He also contended that once the modification

was approved as per order dated October 11, 1999, the

valuable rights accrued in favour of the appellants and that

could not be taken away except after giving an opportunity of

hearing and on this ground also the impugned Notification

dated April 15, 2000 is bad in law.

26. Mr. Ratnakar Dash, learned senior counsel for the

State of U.P. and Ms. Garima Prashad, learned counsel for the

UPSRTC supported the impugned judgment. The thrust of their

submission is that both approved schemes, namely, the 1959

Scheme and the 1993 Scheme are effective and in operation to

make the Saharanpur-Delhi route fully nationalized for the

exclusive operation by the STU and no private operator can

operate on this route and, therefore, notified route viz;

(Saharanpur-Delhi route) could not have been modified without

modifying the 1959 Scheme. Learned senior counsel for the

State as well as counsel for the UPSRTC contended that the

order of the Hearing Authority after hearing objections of the

affected parties is a quasi-judicial order and is not the final

1 order of the State Government. They contended that it was

open to the State Government to modify the order of the

Hearing Authority before publication of the modified scheme.

Reliance in this connection was placed upon a decision of this

Court in Afsar Jahan Begum (Smt) And Others v. State Of M.P.

And Others8. 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 8 (1996) 8 SCC 38

2 Transport Appellate Tribunal9; C.P.C. Motor Service, Mysore v.

State of Mysore and Another10; Adarsh Travels Bus Service

and Another v. State of U.P. and Others11 and Karnataka State

Road Transport Corporation v. Ashrafulla Khan And Others12

and submitted that no private bus can be allowed to overlap

fully or partially on nationalized route if there is no mention of

that in the scheme of nationalization of the said route itself.

The issue

27. In light of the contentions outlined above, the core

question that falls for consideration is : whether the Notification

dated April 15, 2000 is invalid and vitiated by any legal flaw?

28. Insofar as the factual aspect is concerned, it does

not seem to be in dispute that the permits granted to the

appellants related to routes which overlapped the Delhi-

Saharanpur notified route.

Our appraisal 9 (1974) 2 SCC 750 10 AIR 1966 SC 1661 11 (1985) 4 SCC 557 12 (2002) 2 SCC 560

2 (A) The effect of publication of a scheme under Section 68D

29. The expression "route" is defined in Section 2(28-

A) of 1939 Act as follows :

"S. 2 (28-A) "route" means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another;"

30. Chapter IV-A of the 1939 Act makes special

provisions relating to the STUs. Particularly Section 68-C

provides for preparation and publication of scheme of road

transport service by an STU. The objections to the draft

scheme published under Section 68-C may be filed under

Section 68-D. Sub-section (2) of Section 68-D provides that the

State Government after considering the objections and hearing

the objectors and the STU may approve or modify the scheme.

Sub-section (3) of Section 68-D provides that the scheme as

approved or modified under sub-section (2) shall be published

in the Official Gazette by the State Government and the same

shall then become final and called `approved scheme'. Once

the scheme has been published under sub-section (3) of

2 Section 68-D, Section 68-FF imposes restriction on grant of

permits in respect of notified area or notified route. From these

provisions, it is apparent that once a scheme is published

under Section 68-D in relation to any area or route or portion

thereof, whether to the exclusion, complete or partial of other

persons or otherwise, no person other than the STU may

operate on the notified area or notified route except as provided

in the scheme itself. In Adarsh Travels Bus Service11, this Court

held that a necessary consequence to these provisions is that

no private operator can operate his vehicle on any part or

portion of a notified area or notified route unless authorized so

to do by the terms of the scheme itself.

31. A definite legal position has been crystalised by this

Court in Mysore State Road Transport Corporation9 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

2 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 Others13. This position has been reiterated by

this Court in Ram Krishna Verma2. H.C. Narayanappa13 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 this Court

initially in Jeewan Nath Wahal case wherein a three-Judge

Bench of this Court upholding the order of the High Court held

in unambiguous terms that Saharanpur-Delhi route approved in

the 1959 Scheme stood nationalized to the complete exclusion 13 (1960) 3 SCR 742

2 of private operators except 50 operators against whom it was

held not be operative till their objections are heard and decided

by the Hearing Authority. The decision of this Court in Shri

Chand1 has been explained in subsequent decision in the case

of Ram Krishna Verma2 by holding that nationalization of

Saharanpur-Delhi route in the 1959 Scheme cannot be said to

have been quashed in Shri Chand1 except to the extent of 50

operators and in any case the decision of a Bench of two-

Judges in Shri Chand1 cannot have the effect of overruling the

decision of a Bench of three-Judges in Jeewan Nath Wahal.

This Court further held in Ram Krishna Verma2 that the fresh

draft scheme published on February 13, 1986 must be

construed to be in relation to 50 existing operators only. The

same position was reiterated by this Court in Nisar Ahmad and

Ors. v. State of U.P. and Ors.14 and Gajraj Singh and Ors. v.

State of U.P. & Ors.15. In Gajraj Singh15, it was clearly stated

that insofar as Saharanpur-Delhi route is concerned, it shall be

deemed to have been approved and maintained in terms of this

14 1994 Suppl. (3) SCC 460 15 (2001) 5 SCC 762

2 Court's decision in Ram Krishna Verma2. In light of these

decisions of this Court, there is no scope of any doubt that

Saharanpur-Delhi route on its nationalization stood frozen

under the 1959 Scheme against everyone except 50 operators.

The draft scheme published on February 13, 1986 was

confined to those 50 operators alone and not to other private

operators. By the 1993 Scheme, Saharanpur-Delhi route

stood frozen against 50 operators as well. The effect of these

two schemes (1959 Scheme and 1993 Scheme), thus, has

been that the entire Saharanpur-Delhi route became fully

nationalized for the exclusive operation by the STU i.e.,

UPSRTC and no private operator could operate on the said

route. As a matter of fact, consequent upon decision of this

Court in the case of Ram Krishna Verma2 and the settled legal

position that 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, the appellants' permits stood

cancelled and in any case these permits lost their legal

significance and sanctity. In this backdrop, the whole

2 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 102 of the 1988 Act but the

proposed modification published in the Notification on April 16, 1999

2 does not seek to modify the 1959 scheme at all. Since the

Notification dated April 16, 1999 is, ex facie, misconceived and

meaningless as regards Saharanpur-Delhi route, the

proceedings taken pursuant thereto by the Hearing Authority

and his decision dated October 11, 1999 also have no legal

effect.

(C) Section 102 of the 1988 Act and the extent of authority to the Hearing Authority

34. Chapter VI of the 1988 Act contains special

provisions relating to the STUs. Section 99 thereof makes a

provision for preparation and publication of proposal by the

State Government regarding road transport service of an STU.

As per sub-section (1) of Section 100, on the publication of

such proposal, the objections may be filed before the State

Government within 30 days therefrom. Sub-section (2) of

Section 100 provides that the State Government may approve

or modify such proposal after hearing the objectors and the

representatives of the STU. Sub-section (3) of Section 100

makes a provision that the scheme relating to the proposal as

2 approved or modified under sub-section (2) shall be published

in the Official Gazette in at least one newspaper in the regional

language circulating in the area or route covered by such

scheme. On publication of the said scheme in the Official

Gazette, it becomes final. Section 102 of the 1988 Act

empowers the State Government to modify the approved

scheme in the public interest. Since the controversy relates to

this Section, it is appropriate that we reproduce Section 102 of

the 1988 Act as it is. The said Section reads thus:

"S.102. Cancellation or modification of scheme.- (1) The State Government may, at any time, if it considers necessary, in the public interest so to do, modify any approved scheme after giving -

(i) the State transport undertaking; and

(ii) any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification,

an opportunity of being heard in respect of the proposed modification.

(2) The State Government shall publish any modification proposed under sub-section (1) in the Official Gazette and in one of the newspapers

2 in the regional languages circulating in the area in which it is proposed to be covered by such modification, together with the date, not 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

3 the proposed modification and rejected the objections received

in this regard and the approval by the Hearing Authority of the

proposed modification by his order dated October 11, 1999 is

the approval of the State Government. Is the order dated

October 11, 1999 of the Hearing Authority approving the

proposed modification published in the Official Gazette dated

April 16, 1999, an order of the State Government modifying the

approved scheme of 1993 under Section 102(1) of the 1988

Act? The answer has to be in the negative because Shri

Zamirruddin was given authority to hear the representations

received by the State Government to the proposed modification

but no authority was given to him to approve the proposed

modification or modify the approved scheme. The Notification

dated April 16, 1999 does not empower the Hearing Authority to

approve or modify the scheme; he has only been empowered

to hear the objections. That a person who hears must decide

and that divided responsibility is destructive of the concept of

judicial hearing is too fundamental a proposition to be doubted.

This settled principle has also been highlighted by this Court in

3 Gullapalli Nageswara Rao6 but based on such principle the

limited authority of hearing given to the Hearing Authority by the

State Government cannot be treated as enlarged in its scope.

A delegatee must confine his activity within four corners of the

powers invested in him and if he has acted beyond that, his

action cannot have any legal sanction unless ratified by the

delegator.

36. A distinction must be maintained where the hearing

authority is empowered by the State Government to hear

objections and approve the proposed modification or modify the

approved scheme and a case where the hearing authority is

authorized to hear the objections/representations relating to the

proposed modification to the approved scheme. In the latter

case, the authority delegated to the Hearing Authority is limited

and he is not authorized to approve the proposed modification

or modify the approved scheme. The present case falls in the

latter category and accordingly the order of the Hearing

Authority dated October 11, 1999 is in excess of the authority

given to him and cannot be construed as a final order of

3 approval under Section 102 (1) of the 1988 Act. Whether such

limited authority of hearing to the Hearing Authority makes any

legal sense is an aspect for consideration by the State

Government. Suffice, however, to say that it was not open for

the Hearing Authority 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:

"S.21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.

3 - 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 & Another v. Union of India16 way back in 1957. The

majority opinion stated:

"It is to be remembered that S.21 of the General Clauses Act embodies a rule of construction, and that rule must have reference to the context and subject-matter of the particular statute to which it is being applied....".

40. It seems to be fairly settled that under Section 21 of

the General Clauses Act, an authority which has the power to

issue a notification has the undoubted power to rescind or

modify the notification in the like manner. In the instant case,

there is no doubt that the Notification dated April 15, 2000 has

been made in the same manner as the earlier Notification dated 16 AIR 1957 SC 676

3 April 16, 1999. Since the order of the Hearing Authority dated

October 11, 1999 is not an order of approval under Section

102(1) of the 1988 Act and cannot be treated as such, the

power of the State Government to rescind the Notification dated

April 16, 1999 did not get exhausted. The argument that the

draft Notification dated April 16, 1999 merged in the order dated

October 11, 1999 is fallacious and devoid of any substance.

41. Mr. Dinesh Dwivedi, learned senior counsel urged

on behalf of the appellants that even otherwise the material on

record demonstrated that the order of the modification dated

October 11, 1999 was approved by the Principal Secretary of

the Department and, thus, there was an approval by the State

Government. We are unable to accept this submission. In the

first place, except the decision of the Hearing Authority dated

October 11, 1999 there is nothing on record to conclude that

the State Government had approved the proposed modification

as notified on April 16, 1999. Secondly, even if we assume

that an executive action not expressed to be made in the name

of the Governor as contemplated under Article 166(1) of the

3 Constitution may not vitiate such action as nullity and as held

by this Court in Dattatraya Moreshwar Pangarkar v. The State

of Bombay and Others17 the non-compliance with the provisions

of either of clauses of Article 166 would lead to the result that

order in question would lose the protection which it would

otherwise enjoy had the proper mode for expression and

authentication been adopted, but then there has to be some

formal order by the State Government under Section 102(1) of

the 1988 Act. Moreover, there is nothing on record even 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 17 (1952) 1 SCR 612

3 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. Secondly, what Section 21 of

the General Clauses Act requires is that the authority

empowered to issue notification must exercise its power to

rescind such notification in the like manner. We have already

noticed in the preceding discussion that the Notification dated

April 15, 2000 has been made in the same manner as the

earlier Notification dated April 16, 1999.

Conclusion

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44. For the reasons given above, we hold that the

Notification dated April 15, 2000 is valid and does not suffer

from any legal flaw and, accordingly, dismiss these appeals

with no order as to costs. Interlocutory applications for

impleadment stand disposed of, as indicated above.

...........................J. (R.V. Raveendran)

...........................J. (R.M. Lodha)

New Delhi July 5, 2010

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