1967 Supreme(SC) 103

SUPREME COURT OF INDIA
K.N. WANCHOO, R.S. BACHAWAT AND V. RAMASWAMI, JJ.
1. Capital Multi-Purpose Co-operative Societies, Bhopal and others (In C. A. No. 2201 of 1966), 2. Nirmal Motor Car Co., Indore and others (In C.A. No. 2202 of 1966), Appellants
Versus
State of M.P. and others, etc., Respondents.
Civil Appeals Nos. 2201 and 2202 of 1966,
D/- 30-.3-1967.
Advocates appeared
M/s. M. N. Phadke, Naunit Lal, Y. S. Dharmadhikari and M. N. Puranik, Advocates, for Appellants (In both Appeals), Mr. A. P. Sen, Advocate-General, for the State of Madhya Pradesh (Mr. I. N. Shroff, Advocate, with him), for Respondent No. 1 (In both the Appeals); Mr. S. V. Gupte, Solicitor-General of India and Mr. K. A. Chitale, Senior Advocate (M/s. Rameshwar Nath and Mahinder Narain, Advocates of M/s. Rajender Narain and Co., with them), for Respondents Nos. 5 and 6 (In C. A. No. 2201 of 1966) and for Respondents Nos. 4 and 5 (In C. A. No. 2202 of 1966).

Headnote:(1) Motor Vehicles Act, 1939 - S. 68-C - proposed schemes-particulars required by the section and the rules given-scheme validly originated - purposes for which the scheme is originated-objection may be made on their basis-nature of the procedings.

       Section 68-C of the Motor Vehicles Act requires two things, namely, (i) the nature of the services proposed to be rendered, and (ii) the area or route proposed to be covered. Further the section provides that such other particulars respecting the scheme should be given as the rules prescribe. The four purposes for which the scheme is originated are "an efficient, adequate, economical and properly coordinated road transport service" It was contended on behalf of private operators that tie scheme, in order to be validly originated, should have mentioned certain other thing in order to enable them to show that the scheme did not provide an efficient, adequate, economical and properly coordinated load transport service.

       Held: So long as a scheme gives the two things which the section itself prescribes and such other particulars which the rules prescribe, that is enough for the purpose of validly originating the proceeding, resulting in eventual nationalisation of the routes and services concerned. Thereafter it is open to the objectors to take such objections to the proposed scheme in the light of the four purposes indicated above and the proceedings being quasi judicial, the State Government or the authority concerned can consider the objections and finally approve or modify the scheme, or if necessary, reject it altogether. [Para 5]

       (2) Motor Vehicles Act, 1939 – S. 68-D (2) & 68-D (2-a) - State Government to hear objections-who is to hear them-a person not below the rank of Secretary may be appointed-appointment valid even if made under the Rules of Business - Constitution of India - Art. 166(3).

       Under section 68-D (2) of the Motor Vehicles Act, the State Government has to consider objections and hear the objectors to the scheme. The State Government obviously is not a natural person and therefore some natural person has to give the hearing on behalf of the State Government.

       Art. 166 (3) of the Constitution gives power to the Governor to make rules for the more convinent transactions of the business of the Government of the State and Rules of Business have been framed under this power for the performance of the duties which have to be performed under any law by the St3te Government. [Para 6]

       S. 68-D (2-a) may be divided into two parts. The first part may be called substantive and lays down that the person who is to bear objection on behalf of the State Government cannot be an officer below the rank of a Secretary to Government. The second part is procedural and states hew the officer may be appointed, namely, by notification in the official gazette. So far as the substantive pan of the new provision is concerned, it certainly limits the power of the State Government when it proceeds to appoint some one to hear objections and such person in view of the limitation contained in the new provision cannot be an officer below the rank of a Secretary to Government.

       Where the State Government proceeds under section 68-D (2-a), it has to make a notification in the official gazette appointing a person nut below the rank of a Secretary to Government to hear objections. But it may act under the Rules of Business so long as under those rules it appoints a person not below the rank of a Secretary to Government for the purpose of hearing objections. The limitation under the new provision is only this that the person appointed cannot be below the rank of a Secretary. But so far as the procedural part is concerned, the appointment may be by notification as provided under the new provision or by an order under the Rules of business. [Para 7]

       (3) Practice-orders-administrative authority, orders by - an express finding necessary under a statute-such finding should be given ill the order-such finding cannot be supplied by implication.

       There are certain American cases which hold that the lack of an express finding necessary under a statute to validate an order of an administrative agency cannot be supplied by implication. When, therefore, such an administrative agency is required as a condition precedent to an order to make a finding of facts the validity of the order must rest upon the needed finding. If it is lacking the order is ineffective and the lack of express finding cannot be supplied by implication. This principle may be unexceptionable where tile existance of a finding is necessary for taking action, but that depends upon the words of the statute. [Para 8]

       (4) Motor Vehicles Act, 1939 - Ss. 68-C and 68-D – express finding by the authority hearing objections for approving, modifying or rejecting scheme not a condition precedent – absence of finding -does not invalidate the order.

       There is no express provision in section 68-C or section 68-D laying down that the authority hearing the objections must come to some finding of fact as a condition precedent to its final order. As such no express finding is necessary under section 68-C read with section 68-D that the scheme provides an efficient, adequate economical and properly coordinated road transport service. The whole object of hearing objections under section 68-D is to consider whether the scheme provides an efficient, adequate, economical and properly co-ordinated road transport service.

       After hearing the objections the State Government, or the officer appointed by it has either to approve or modify, or if necessary to reject the scheme.

       In the absence of a provision requiring an express finding in these two sections, the very order must he held to mean either, where the scheme is approved or modified, that it sub-serves the purposes mentioned in section 68-C, or, where it is rejected, that it does not sub-serve the purpose. The order passed by the authority is not invalidated for the want of an express finding. [Para 8]

       (5) Motor Vehicles Act, 1939 - S. 68-D(2) - hearing under-are quasi-judicial in nature-objectors should be given an opportunity to produce evidence witnesses and documents when and how may be summoned.

       The hearing under section 68 D(2) was quasi-judicial in nature and the Slate Government acted as quasi-judicial authority under that section. (1959) Suppl. 1 SCR 319 relied on.

       [Para 10]

       The hearing before a quad-judicial authority did not mearly mean an argument and in proper cases it might include taking of evidence both oral and documentary; (1962) 1 SCR 978 relied On. [Para 11]

       If the party concerned wishes to produce any document or produce ally witness, the authority may take the documentary evidence into consideration or take the evidence of the witnesses, if it considers such evidence relevant and necessary. But this is in the absence of any provision in the Act or the Rules, no power in the authority or the State Government to compel attendance of witnesses or to compel production of documents. This is of course not to say that if the authority wants any party before it to produce any document for satisfying itself whether the scheme is for the purposes mentioned in section 68-C it cannot so ask, and if the party asked to produce documents does not do so the authority would be entitled to draw such inferences as it might consider justified from the non-production of documents Rut apart from this, there is no power conferred on the authority under the Act or the Madhya Pradesh Rules to compel production of documentary evidence or to summon any witness. (1964) 1 SCR 220 explained. [Para 13]

       (6) Tribunals-practice-summoning of witness-power to do so must be in the Act or Rules-no such power given-only letters may be issued.

       Issue of summonses presumes that there is authority to issue them and the person to whom they are issued is bound to obey. In the absence of such power all that an authority can do is to issue letters merely requesting persons to appear and it is open to those persons, to appear or not. [Para 13]

       (7) Motor Vehicles Act, 1939 - S. 68-D and Chapter IV-A - matters required to be considered-resources and financial position of State Transport Undertaking need not be enquired-no comparision is to be made between private operators and State Transport Undertaking.

       The State Transport Undertaking -defined in section 68-A (b) of the Act are all under the control of the State Government or the Central Government. In these circumstances, with the resources of the Government behind those authorities it would be futile for any objector to say that the Central Government, the State Government or the Authorities backed by it could not have equipment and finances to carry out the schemes.

       The very fact that a scheme is proposed suggests that the Central Government or a State Government or the Authorities would carry it out. So there is no question of asking for production of documents relating to the equipment and financial position of a State Transport Undertaking as defined in section 68-A (b). [Para 14]

       When the State Transport Undertaking takes action under Chapter IV-A of the Act, there is no question of comparison between a State Transport Undertaking running an integrated service and individual operators running one transport vehicle or more on individual routes. Comparative merits of a State Transport Undertaking as against individual operators does not require to be judged under Chapter IV-A in the public interest. [Para 16]