Sindhi Sahiti Multipurpose Transport Co-operative Society LTD. vs State Of M. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1976 Supreme(SC) 446

SUPREME COURT OF INDIA
A.N. RAY, C.J.I., M.H. BEG AND JASWANT SINGH, JJ.
Sindhi Sahiti Multipurpose Transport, Co-operative Society Ltd., Appellant
Versus
State of M.P. and others, Respondents.
Civil Appeal No. 1166 of 1976,
D/- 16-11-1976.
Advocates appeared
Mr. M.N. Phadke, Sr. Advocate, (M/s. S.Q. Hasan and A. G. Ratnaparkhi, Advocates with him), for Appellant. Mr.Ram Panjwani, Advocate and Mr. H. S. Parihar, Advocate for Mr. I. N. Shroff, Advocates, (for No. 1); Mr. Niren De, Attorney General, (Mr. Rameshwar Nath and Mr. Desai, Advocates with him), (for No. 6). for Respondents.
.

Advocates:
A.G.Ratnaparkhi, AMI PANJAVANI, H.S.PARIHAR, I.M.SHROFF, M.N.Phadke, NIRAN DEY, RAMESHWAR NATH ROY, S.QAMARUL HASAN, V.B.DESAI

Headnote:(1) Constitution of India - Art. 352(1) and Ninth Schedule-bar under -constitutionality of a statute cannot be challenged-acts done under a statute not saved.
       Where a statute is entered in the Ninth Schedule of the Constitution, its constitutionality cannot be challenged during the proclamation of emergency. But an action taken under the statute can be challenged. Although Chapter IV -A of the Motor Vehicle, Act, 1939, is not open to any constitutional challenge, it is open to any aggrieved person to challange any scheme on the ground that it is not a valid scheme as required by the provisions of Chapter IV-A of the Act. 1976 JLJ 851 reversed on this point. [Para 5]
       (2) Motor Vehicles Act. 1939 - S. 68-D - nationalisation may be complete or partial-scope of the objections to the scheme.
       It is not only competent but also conscionable that a scheme for nationalisation can be complete or partial. The efficiency as well as adequacy of the scheme is advanced by such policy decisions of complete or partial nationalisation of routes.
       Under section 68-D of the Act the only scope for objection is whether the scheme is efficient and adequate and not whether exclusion is complete or partial. Objections are confined only to the four grounds of efficiency, adequacy, economy and proper coordination of road transport service. Exclusion can be attacked only on these four grounds. (1967) 3 SCR 329 and (1969) 3 SCR 742 relied on. [Para 25]

Judgment

RAY, C.J.I. :- This appeal is by special leave from the judgment dated 16 September, 1976 of the High Court of Madhya Pradesh.*

* Reported in 1976 Jab LJ 851.

2. The appellant made an application under Articles 226 and 227 of the Constitution in the High Court and impeached the order dated 21 September 1974 whereby the Government dismissed the appellants objections against Scheme No. 9-M relating to Road Transport Nationalisation. The appellant also impeached the Scheme as published in the Gazette on 11 October, 1974.

The High Court held that in view of the fact that Chap. IV-A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) is included as Entry 125 in the a Ninth Schedule to the Constitution the appellant could not challenge the Scheme.

3. The High Court erred in holding that it was not open to the appellant to challenge the Scheme. The Attorney General rightly and fairly said that the judgment of the High Court could not be supported on that ground.

4. The High Court failed to appreciate that though Chapter IV-A of the Act is not open to any constitutional challenge, it is open to any aggriered person challenge any Scheme on the ground that it is not a valid Scheme as required by the provisions of Chapter IV-A of the Act.

5. Scheme No. 9-M relating principally to Jabalpur-Sagar and Damoh-Hatta routes was published by the State Transport Undertaking in the State Gazette on 15 (November) 1963. The Scheme was approved and finally published in the State Gazette on 12 February 1965. Under the Scheme which came into force with effect from 2 April, 1965 Jabalpur-Sagar and Damoh-Hatta portions of the routes were reserved for exclusive operation by the State Transport Undertaking. The portions Sagar-Bhopal, Rehli-Garhakota, Hatta-Panna, Katangi-Majhouli and Damoh-Chhatarpur via Hirapur were kept for joint operation with existing permit holders with the condition that the permit holders with existing permits were not to pick up passengers from and to any station lying between Nohta-Abhana-Garhakota or any other two stations on Jabalpur-Sagar road and Damoh-Hatta and vice-versa.

6. The Transport Authorities granted fresh permits covering Abhana-Damoh-Garhakota portion treating it to be a portion of joint operation with others. This action of the Transport Authorities was found to be destructive of the true intention of Scheme No. 9-M.

7. It thus became necessary to modify Scheme No. 9-M. The proposal was then placed before the Board of the State Transport Undertaking referred to hereinafter as the undertaking by the General Manager. The Board of the Undertaking considered the matter at its meeting held on 20 August 1973 and passed Resolution No. 8354 approving the proposal modifying Scheme No. 9-M. The Board Resolution directed inclusion of Sagar-Rehli-Garhakota-Jabalpur and Patharia-Damoh routes for exclusive operation by the State Corporation. The Board directed that the Scheme giving the details should be placed before the Board for its approval. In this background Scheme No. 9-M giving details was prepared and the proposal was placed before the Board of the Undertaking at the meeting held on 29 November, 1973. The Board of the Undertaking approved the proposal by Resolution No. 1395 and authorised consequential action.

8. Scheme No. 9-M was published in the Official Gazette on 7 December 1973. The Scheme was thereafter considered by the Special Secretary to the State Government in exercise of powers under Section 68D of the Act. Under Sec. 68D of the Act persons contemplated in the Act might file objections and the State Government would hear objections and then approve or modify the Scheme. The State Government on 21 September 1974 approved the Scheme after having heard the objections. The approved Scheme was notified in the State Gazette dated 11 October 1974. The approved Scheme came into force with effect from 19 November, 1974.

9. Scheme No. 9-M as approved, after hearing objections, provided in clause (