Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1961 Supreme(SC) 379

SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, A.K. SARKAR, K.N. WANCHOO, K.C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR, JJ.
1. Birajmohan Das Gupta (In Petn. No. 117 of 61) and
Versus
State of Orissa and others (in both Petns.), Respondents.
Petns Nos. 117 and 137 of 1961, D/- 28-11-1961.
Advocates appeared
Mr. L. K. Jha, Senior Advocate (Mr. R. Patnaik, Advocate, with him), for Petitioner (In Petn. No. 117 of 61); Mr. C. B. Agarwala, Senior Advocate (Mr. R. Patnaik, Advocate, with him), for the Petitioner (In Petn. No. 137 of 61); Mr. A. V. Viswanatha Sastri, Senior Advocate (M/s. B. R. L. Iyengar and T. M. Sen, Advocates, with him), for Respondents (In both the Petns.)

Advocates:
A.V.VISHWANATHA SASTRI, B.R.L.Iyengar, C.B.AGARWAL, L.K.JHA, R.PATTANAIK, T.M.SEN

The court held that the scheme of road transport service approved by the Government of Orissa under S. 68-D (2) of the Motor Vehicles Act, No. IV of 1939 was valid.

Headnote:
MOTOR VEHICLES ACT - SCHEME OF ROAD TRANSPORT SERVICE - VALIDITY - HEARING OF OBJECTIONS - BIAS OF MINISTER - ILLEGALITY OF ORDER RENDERING PERMITS INEFFECTIVE - APPLICATION FOR PERMITS BY STATE TRANSPORT UNDERTAKING - DATE OF OPERATION OF SCHEME - AUTHORITY OF TRANSPORT CONTROLLER TO PUBLISH SCHEME.
Fact of the Case:

The petitioners challenged the validity of a scheme of road transport service approved by the Government of Orissa under S. 68-D (2) of the Motor Vehicles Act, No. IV of 1939 (herein after called the Act).
Finding of the Court:

The court found that there was no merit in the petitioners' contentions and dismissed the petitions.
Issues: 1. Whether the minister who heard the objections under S. 68-D (2) was biased and therefore the approval given to the scheme invalid. 2. Whether the order of the Regional Transport Authority dated December 17, 1960, rendering the permits of the petitioners ineffective from April 1, 1961 is illegal inasmuch a S. 68-F and R. 10 framed under Chap. IV-A were violated 3. Whether the State Transport Undertaking did not apply for permits six weeks before April 1, 1961, as required by S. 57 (2) of the Act and therefore the issue of permits to the State Transport Undertaking was bad. 4. Whether the final scheme did not mention the date from which it was to come into operation as required by Rule 3 (vi) of the Orissa Rules and was therefore bad. 5. Whether the Transport Controller who published the scheme had no authority to do so.
Ratio Decidendi: 1. The court held that the minister was not biased and that the hearing given by him was no hearing in law. 2. The court held that the petitioners could not be allowed to raise the points regarding the illegality of the order rendering the permits ineffective and the failure of the State Transport Undertaking to apply for permits six weeks before April 1, 1961, as these points were not raised in their petitions. 3. The court held that there was substantial compliance with R. 3 (vi) of the Orissa Rules, which requires the final scheme to contain the date of operation, as the notification publishing the final scheme referred to the draft scheme and said that the draft scheme is approved and there is no mention of any modification. 4. The court held that the Transport Controller had the authority to publish the scheme as he is the chief officer of the State Transport Undertaking.
Final Decision: The petitions were dismissed with costs.

Judgement

WANCHOO, J. : These two petition challenge the validity of a scheme of road transport service approved by the Government of Orissa under S. 68-D (2) of the Motor Vehicles Act, No. IV of 1939 (herein after called the Act). A large number of grounds have been raised in the petitions but we are now concerned with only six points urged on behalf of the petitioners and we shall deal with only those points. No arguments were addressed on the other points raised in the petitions and it is therefore not necessary to set them out. The six points which have been raised before us are these :-

1 No hearing was given to the petitioner in petition No. 117 as required by S 68-D (2) and the Rules framed under Chap. IV-A.

2. The minister who heard the objections under S. 68-D (2) was biased and there fore the approval given to the scheme invalid.

3. The order of the Regional Transport Authority dated December 17, 1960, rendering the permits of the petitioners ineffective from April 1, 1961 is illegal inasmuch a S. 68-F and R. 10 framed under Chap. IV-A were violated

4. The State Transport Undertaking did not apply for permits six weeks before April 1, 1961, as required by S. 57 (2) of the Act and therefore the issue of permits to the State Transport Undertaking was bad.

5. The final scheme did not mention the date from which it was to come into operation as required by Rule 3 (vi) of the Orissa Rules and was therefore bad.

6. The Transport Controller who published the scheme had no authority to do so.

2. We propose to take these points one by one.

3. Re. 1. - The contention of the petitioner is that the minister heard the objections on September 2l, l960 and passed his orders approving the scheme on September 22, 1960. The notice however issued to the petitioner of the date of hearing was receipted by him on September 23, 1960, and as such as there was no opportunity for the petitioner to get a hearing before the minister and consequently the Scheme which was approved in violations of S. 68-D (2) and Rule 8 was invalid. It appears that the draft scheme was published on July 29, l960. Objections were invited from the operators and members of the public thereto. The petitioner filed his objections on August 24, 1960. The date which was originally fixed for hearing of objections was September l6, l960 and it is not disputed that the notice of that date was given to all objectors as required by S. 68-D (2) and the Rules. The petitioner, however, did not appear on September 16, 1960, which was the first date of hearing. Many other objectors appeared on that date and prayed for time. Consequently the hearing was adjourned to September 21. As however the petitioner was absent a fresh notice was sent to him as a matter of abundant caution. That notice could not be delivered to him before September 21, 1960, as he was absent from his address and he was actually served on September 23, 1960. The petitioner s complaint therefore is that as he was not served with notice about the hearing on September 21, 1960, there was no compliance with S. 68-D (2) and the Rules framed in that connection under Chap. IV-A.

4. On these facts we are of opinion that there is no force in the contention raised on behalf of the petitioner What R. 8 of the Orissa Rules requires is that ten days clear notice has to be given of the time, place and date of hearing to all objectors. This was undoubtedly done, for the date originally fixed for hearing was September 16, 1960. Thereafter the hearing was postponed to September 21 at the instance of the objectors. It was in our opinion not necessary to give a fresh notice giving ten clear days as required by R. 8, for this adjourned date. Rule 8 only applies to the first date to be fixed for hearing. Thereafter it the hearing is adjourned, it is in our opinion unnecessary to give a further notice at all for the adjourned date. It was the duty of the petitioner after he had received notice of the first date to appear on that date. If he

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