# BIRAJMOHAN DAS GUPTA v. THE STATE OF ORISSA AND OTHERS

- **Citation:** [1962] Supp. 1 S.C.R. 681
- **Court:** Supreme Court of India
- **Decided:** 1960-12-17
- **Bench:** P. B. Gajendbagadkar, A. K. SARX.lR, K. N. Wanojioo, K. C. DAS Gu.PTA, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/birajmohan-das-gupta-v-the-state-of-orissa-and-others-2563
- **Pages:** 10

## Headnote

Boad Tranal!".rl-Slale TraMpOrt Urnlertaking-SchemoAp~ro...Z by _Min,.ler-Biaa o/ M~ni81er-Validity of schem<-
Jliottce for adiourned dale of heanng-1/ necesaary-.()miasion
u/ date of operation of route in final acheme- Tranaport Oontrollu-Authority to pubU.h acheme-Ori&a Bu!u frame;J und<r
Oh. IV A of Motor Vehit:les-Act, .,,, ~ (.,;), 8-Molor Velliclu Act,
19&9 (4 of 1939), as. 680, 68D (9).
The validity of a schemlt' oi road .. Vanlport service appro.
ved by the Government af
01U... IW!cr a·. 68D (2) of the
J91Jl
K. -M. Nanavali
v.
., he se'Jte of
/11ah6rashtra
Subba BJo J.
1961
· elllfflbcr 21
ill(,J
11Uajrnolt'11
Dtu Gafl'•
••
1·'4 Stdt •} O,;u•
682 SUPREME COURT REPORTS [1962) SUPP.
Motor Vehicles Aa, 1939, was challe11g•d by the p<titioners
on the grounds (I) that a proper notice \Vas no: given for the
h•aring of ocjcctions to the scheme, (2) that the Minister for
Tran>pott who approved of the scheme was biased, (3) that the
final schen:e did not mt'ntion the date on \\'hich it v.·as to conic
into operation, and (4) that the Tran.port Controller who published the scheme had no authority to do oo.
Held, that; (1) r. 8 of the Rul•S framed by the 0ri5'a
State Government und<r Ch. IVA of the Motor Vehicles Act,
1939. applied only to the first date to be fixed for healing, and
that if for any reason the hearing was adjourned, it Wa!\ not
necessary to give a fresh notice under the rule for the adjourned date of hearing;
(2) the stattment made by the minister in answer to a
question put i11 the legislative as~entbly that the Gr,vernment
had <le<ided to take over all the routes from April I, 1961.
eliminating all private operator~, was merely an indication of
the Government's policy and that the minister could not be
said to be personally biased;
(3) the approved scheme was not invalid for the reason
that the actual date of operating the route wa1 not mentioned
in the final scheme, as required under r. 3 (vi) of the Rules,
inasmuch as the notification publishing the final .cheme referred to the draft scheme which contained that date and
"'id that the draft scheme was approved, and, con.cquently,
the rule must be considered to have been substantially com.
plied with; and
(4) the Transport Controller, being the Chief Officer of
the Staie Transport Undertaking, had the authority to pul>lish
the scheme under s. 68C of the Act sinc:e the section provided
that the Staie Transport Undertaking "•hall cause it to be
published" which meant that oome officer of lhe Undertaking
would have it published in the Gazette.
0RIGI~AL JURISDICTION : Petitions Nos. 117
and 137 of 1961.
Petition under Art 32 of the Constitution of
India for enforcement of Fundamental RighU;.
L. K. Jha and R. Patnai/c, for the petitioner
(in Petn. No 117 of 1961).
C. B, .Agarwala and R. Patnailc, for the peti·
tioner (in Petn. No. 137 of 1961) .
.A. V. Vi.ttoanatha Swtri, B. R. L. Iyengar and
T . .M. Sen, for the respondent..
I
I
(l) S.C.R.
SUPREME COURT REPORTS · 683
1961. November 28. The Judgment of the
Court was delivered by
WANOHOO, J.-These two petitions challenge
the validity of a scheme of road transport service
approved by the Government of U;·issa under
s. 68D (2) of the Motor Vehicles Act, No. 1 V of 1939
(hereinafter called the Act ).
A large number of
grounds have been raised in the petitionR but we
are now concerned with only six points mged on
behalf of the petitioners and we shall de"l with
only. those points. No, arguments were addressed
on the other points raised in the petitions and it is
therefore not necessary to set tbem out. The six
points which have been raised before us a.re these:-
1. No hearing was given to the petitioner in
petition No. 117 as required bys. 68D (2) and the
Rules ftamed under Chap. IV- A.
2. The minister who heard the objections
under s. 68D (2) was biased and therefore the
approval given to the scheme is invalid.
3. The
order of the Regional Transport
Authorit~ da.t.ed December 17, 1960, rendering the
permits of the petiti

## Text

,
1) S.C.R.
SUPREME OOURT REPORTS
68L
regain his self-control, even if he had not regained
it earlier. On tho other hand, his conduct clearly
shows that the murder was a.
deliberate and
calculated one. Even if any oonvers'.ltion took
place between the accused and the deceased
in
the manner described
by the accusedthough we do not believe that-it does. not a:tfect
the question, for the accused entered the bed-room
of the deceased to shoot him. The mere fact that
before the shooting the accused abused the deceased and the abuse provoked an equally abusive
reply could not conceivably be a provocation for
the murder. We, therefore, hold that the facts of
the case do not attract the provisions of Exception
I to s. 300 of the Indian Penal Code.
In the result, conviction of the accused under
s. 302 of the Indian Pena.I Code and senten,JC
of imprisonment for life passed on him by the High
Court are correct, and there are absolutely no
grounds for interference. The appeal stands dismissed.
Appeal dismissed.
--
BIRAJMOHAN DAS GUPTA
v.
THE STATE OF ORISSA AND OTHERS
(P. B. GAJENDBAGADKAR, A. K. SARX.lR, K. N.
WANOJIOO, K. C. DAS Gu.PTA and N. RAJAGOPALA
AYYANGAR, JJ.)
Boad Tranal!".rl-Slale TraMpOrt Urnlertaking-SchemoAp~ro...Z by _Min,.ler-Biaa o/ M~ni81er-Validity of schem<-
Jliottce for adiourned dale of heanng-1/ necesaary-.()miasion
u/ date of operation of route in final acheme- Tranaport Oontrollu-Authority to pubU.h acheme-Ori&a Bu!u frame;J und<r
Oh. IV A of Motor Vehit:les-Act, .,,, ~ (.,;), 8-Molor Velliclu Act,
19&9 (4 of 1939), as. 680, 68D (9).
The validity of a schemlt' oi road .. Vanlport service appro.
ved by the Government af
01U... IW!cr a·. 68D (2) of the
J91Jl
K. -M. Nanavali
v.
., he se'Jte of
/11ah6rashtra
Subba BJo J.
1961
· elllfflbcr 21
ill(,J
11Uajrnolt'11
Dtu Gafl'•
••
1·'4 Stdt •} O,;u•
682 SUPREME COURT REPORTS [1962) SUPP.
Motor Vehicles Aa, 1939, was challe11g•d by the p<titioners
on the grounds (I) that a proper notice \Vas no: given for the
h•aring of ocjcctions to the scheme, (2) that the Minister for
Tran>pott who approved of the scheme was biased, (3) that the
final schen:e did not mt'ntion the date on \\'hich it v.·as to conic
into operation, and (4) that the Tran.port Controller who published the scheme had no authority to do oo.
Held, that; (1) r. 8 of the Rul•S framed by the 0ri5'a
State Government und<r Ch. IVA of the Motor Vehicles Act,
1939. applied only to the first date to be fixed for healing, and
that if for any reason the hearing was adjourned, it Wa!\ not
necessary to give a fresh notice under the rule for the adjourned date of hearing;
(2) the stattment made by the minister in answer to a
question put i11 the legislative as~entbly that the Gr,vernment
had <le<ided to take over all the routes from April I, 1961.
eliminating all private operator~, was merely an indication of
the Government's policy and that the minister could not be
said to be personally biased;
(3) the approved scheme was not invalid for the reason
that the actual date of operating the route wa1 not mentioned
in the final scheme, as required under r. 3 (vi) of the Rules,
inasmuch as the notification publishing the final .cheme referred to the draft scheme which contained that date and
"'id that the draft scheme was approved, and, con.cquently,
the rule must be considered to have been substantially com.
plied with; and
(4) the Transport Controller, being the Chief Officer of
the Staie Transport Undertaking, had the authority to pul>lish
the scheme under s. 68C of the Act sinc:e the section provided
that the Staie Transport Undertaking "•hall cause it to be
published" which meant that oome officer of lhe Undertaking
would have it published in the Gazette.
0RIGI~AL JURISDICTION : Petitions Nos. 117
and 137 of 1961.
Petition under Art 32 of the Constitution of
India for enforcement of Fundamental RighU;.
L. K. Jha and R. Patnai/c, for the petitioner
(in Petn. No 117 of 1961).
C. B, .Agarwala and R. Patnailc, for the peti·
tioner (in Petn. No. 137 of 1961) .
.A. V. Vi.ttoanatha Swtri, B. R. L. Iyengar and
T . .M. Sen, for the respondent..
I
I
(l) S.C.R.
SUPREME COURT REPORTS · 683
1961. November 28. The Judgment of the
Court was delivered by
WANOHOO, J.-These two petitions challenge
the validity of a scheme of road transport service
approved by the Government of U;·issa under
s. 68D (2) of the Motor Vehicles Act, No. 1 V of 1939
(hereinafter called the Act ).
A large number of
grounds have been raised in the petitionR but we
are now concerned with only six points mged on
behalf of the petitioners and we shall de"l with
only. those points. No, arguments were addressed
on the other points raised in the petitions and it is
therefore not necessary to set tbem out. The six
points which have been raised before us a.re these:-
1. No hearing was given to the petitioner in
petition No. 117 as required bys. 68D (2) and the
Rules ftamed under Chap. IV- A.
2. The minister who heard the objections
under s. 68D (2) was biased and therefore the
approval given to the scheme is invalid.
3. The
order of the Regional Transport
Authorit~ da.t.ed December 17, 1960, rendering the
permits of the petitioner! ineffective from April
1 1961 is illegal inasmuch ass. 68 F and r. 10
r:amed 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 had.
5. The final scheme did not mention the
date from which it was to come into operation as
required by r. 3 (vi) of the Orissa Rules· and was
therefore bad.
6. The Tranaport Controller who published
the scheme had no authority to do so.
1961
Birajmohnn
Das GuJ>'a
v.
The Statt tJ/ D1i.rr1
w...,hooJ.
JllllJ
s;..;...i.m.
DisO.Jlo
••
71it .ttol'! of OriJUI
w..,,..,J,
684 SUPREME COl.R'.1' REPORTS {1!162] SUPP.
Re. I.
We propose to take these points one by one.
The contention of tho pet it ic ner is that the
miuistt>r heard the objections on September 21,
1960, and passed his orders approving the scheme
on l:lepttmbcr 22, J 960. The notice however issued
to the petitioner of the date of hearing w1111 received
by him un September 23, 1960, and as such as there
was no ''PP''rtunity fu the-petitioner to geta hear·
ing before the minister and consequently the scheme
which was approved in violation of s. ti8D (ll) and
r. 8 was invalid. It appears that the draft scheL.e
was publiebcd on July 29, 1960. Objections were
invited from the operators and members of the
public thereto_
'1 he petitioner filed his objection
on August 24, 1960. The date which was originally
fixed for hearing of objections w1111 September Hi,
l!lGO, and it io not disputed that the nutice of thai
d .. te was given to all objectors as required by
s. 68D(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
~L As however the petitioner was absent a fresh
notice w1111 sent to him 1111 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 aetua.Hr served on
Septembur 23, 1960The petitioner e complaint
therl'lfore is that as he was · not served with
notice about the hearing on September 21, 1960
there was no compliance withs. 68D (2) and the
Rules framed in that connection under Chap. IV-A.
On these facts, we a.re of opinion that there
is no force in the contention raised on behalf of
the petitioner. What r. 8 of the Oriesa Rnlea
requires is that ten days' clear notice has to be
&iven of the time, place and date of hearing to all
~·
I
(1) S.C.R. SUPREME COURT REPORTS
685
objectors. This was nndonbkdly 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 nePessary to give a frE>sh
notice giving ten clear days as required by r. 8, for
this adjourned date. Rule 8 only applies to the
first dotte ·to be fixed for hearing. Thereafter if
the hearing is adjourned, it is in our opinion
~necessary to give a further notice at all for the
$djourned date. It was the dnty of the petitioner
Mter he had received notice of the fir~t date to
appear on that date. If he did not appear and the
hearing had to be adjourned on the request of the
objectors, or for any other reason, to another
date,
no further notice was necessary of the
adjourned date. It is true that notice was given
to the petitioner of the adjourned date; but that
was in our opinion as a measure of abundant
caution. The rule does not however require that
a fre&h notice must be given of the adjourned date
of hearing also. In the circumstances .we reject
this contention.
Re. 2.
Reliance is placed on two circumstances to
show that the Minister was biased and therefore
the hearing given by him was no hearing in law.
In the firat place, it is said that in answer to a
question in the Orissa Legislative Assembly as to
when the Government was taking over the privately
operated moter routes, tho Transport Minister (who
eventually heard the objections) replied that the
Government had decided to take over all the routes
from April 1, 196 l, eliminating all private opera·
tors. It is urged that this shows that the Transport
Minister was biased and was determined whatever
happened to push through the scheme so that it
may become operativt> from April I, 1961. We are
of opinion that there is no foroe in this contention
11161
Birqjmo41111
Das Gupta
•;
Tiu StaU ofO;r,-;;
w ....... J.
IMI
Bitojm•lum
Das ll.p'4
••
1 lw 6lal10f Oriss•
Wonth°" J,
686 SUPREME COURT REPORTS [Hl62J SUPP.
of biaH based on this reply of the Minister to a
question put in the Legislative Assembly. The
G0vernment was asked when it was intending to
take over the privately operated motor routes and
its reply was really a matter of policy, namely
that it was the policy of the Government to take
over all th1• routes eliminating all private opera.
tors from April I, 1961. This did not mean
that even if, for example, the scheme was not
ready or if the scht>me put forth was found by the
Government to be open to objection, the Govern·
mcnt would still force through the taking over of
the privately operated routeR from April I, 1961.
This answor was merely an indication of the
Govt>rnment's policy, namely, that the Government
w;Ls intending to take over all private operated
routes from April I, 1961 ; but whether in actual
fact all the routes would be t.'Lken over on that date
would depend upon so many circmmstances inolud.
ing finnnee.
It cannot be said that this announce·
ment of the Government's policy in answer to a
question put in the ll'gisle.tive assembly meant that
the Government was determined whatever happened
to elim inato all privately operated routes by April I,
1961. We are therefore of opinion th"t the Minister
cannot be s-iid to he personally biased because this
pe>licy statement waR made by him in answer to a
quPstion put in the l<'!!islativo ~ssembly.
Another rAason that is urged to support the
personal bias of the Minister is that the Minister is
said to have stated to certain persons that as the
privately operatod routes in the district of Ge.njam
which was his constituency had been nationalised
he we.s determined to annihilate all the private bus
opera.tors i11 the district of Cuttack also.
This
allegation hall been denied on behalf of the State.
It is however urged that no affidavit has been filrd
by the Minister who alone was likely to have
knowledge on this point. It appears however that
the petitioners also have no persona.I knowledge of
(1) S.C.R.
SUPREME OOURT REPORTS
687
any such determination on the part of the Minister.
Thy based their alll'gation on an alleged talk
between the Minister and two citizens of Cuttack,
namely, a municipal councillor and an advocate. -
No affidavit however of the two persons concerned
has been filed to support this allegation. In the
circumstances we are of opinion that it was not
necessary for the Minister to file an affidavit for
the allegation on b<>half of the petitioners was also
based on heresay and it has been contradicted by
similar evidence on behalf of the State. It would
have been a different matter if the two persons
concerned had made affidavits from personal knowledge. There is therefore no force in this contention and we are of opinion that it cannot be said
on the fa.eta of this case that the Miniater wa1
biased.
Re. 3 aru/, I.
We propose to take these points together. We
are of opinion tha.t the P"titioners cannot be allowed to raise these points for the first time in arguments before us, for there is no mention of these
points in their petitions. It appears that in an
affidavit filed in connection with stay. something
was said on these two points ; but the stay matter
was never pursued and .never came up before this
Court for hearing. In the circumstances there was
no reply from the State Government to these allegations. We are of opinion that the petitioners
cannot be allowed to raise these points now for the
first time in arguments when they did not raise
them in their petitions and consequently reject
them.
Re. 5.
It is contended that under r. 3 (vi) of the
Orissa. Rules, the draft scheme or the approved
scheme has to be published in the official gazette
under ss. 680 and 68E and has to contain certain
particulars including the actual date of opera.ting
IHI
Birajmohan
DaiQlljJt•
••
n, 51.,, •I o,i.r,.
War.qA,.,J.
1941
Bitojmo.'uin
Dos OJJ114
••
Th..81011 oJOrisso
Wa,,choo J.
688 SUPREME COURT REPORTS (1962] SUPP.
the route. Now what happened in this case is that
the draft soheme rnt>ntioned the date of operation
as April I, 1961. This was in a.ccordance with r. 3
(vi). When the final scheme was published, this
date was not mentioned in it. We will assume that
r. 3 (vi) requires that when the final scheme was
publi~hed, the date should have been mentfoned. It
serms to us that tho rule so read has leen substantially complied with, for the notificati9n publi·
shing the final R<·heme refers to the draft scHem1' and
says t!~·at tho draft scheme is approved and there
i~ no mPntion of any modification. Jn the circumstances it \\·ould in cur opinion be not unreasonable
tq read the dato April I, J!J6l, incorporatrd in the
final 8cheme by refrrenct< to th" draft schem•. It
would htwo been a different matter if the draft
S•·hcmo l\l8<i <lid not contain the dak of o1peration.
We arc therefore of opinion that there has been
substantial comoliance with r. 3 (vi), and the final
schem·} cannot I.Jc said to be bad for non·comphanco
with
the
rule.
We
thorcfore
reject
this
contention.
Re. 6.
It is urged in this connoc~ion that the Transport Controller had no authority to publish the
draft scheme.
It is n.lso urged that tho TranRport
Controller is not tho State Transport Undertaking
and thl• n·Jtific.ation under s. 68C does not show
that tho State TraMport Undc1taking was of opinion
that it wa..~ neccsAAry to take over certain transport
s1Jrviccs for the purpose mentioned in that section.
The argument a.s r'liscd before us is really two-fol<l.
In the firMt pla.cn it is urged tha.t the Transport
Controller had no authority to publish tho scheme.
There is however no force in this content.kn, for
s. 68C requires that after the State Trans;iort
Undertaking has formed the opinion required thereunder and prepared a scheme it shall cause tho
~cheme to be published. The Transport Controller
(l) S.C.R.
SUPREME OOURT REPORTS
689
is the chief officer of the State Transport Undertaking and we see nothing irregular if Ile publishes
the scheme prepared under s. 68C. The section
lay~ down that after the scheme has been prepared
in the manner provided thereunder, the State Transport Undertaking aluJl,l cause it to be published, which
means that some officer of the Undertaking will
have it published in the gazette. In the present
case, the chief officer of the Undertaking has got it
published and this in our opinion is in sufficient
compliance with s. 68C. ·
The other part of the argument is thst the
notification under s. 68C does not show that it was
the State Transport Undertakingwhich was satisfied
that it was necessary to take action under that
section, for it says that "I, Colonel S. K. Ray,
Indian Army (Retd. ), Transport Controller, Orissa,
in-charge of State Transport Undertaking, Orissa,
&m of opinion that for the purpose of proTidiruz an
efficient, adequate and economical and properly
co-ordinated road tre.nsport service it is necessary
............... " The argument is that it was not the
State Transport Undertaking which was satisfied
but Col. S. K. Ray, Transport Controller, who formed the necessary opinion under s. 680. We find
that this point was also riot taken in the petitions.
All that was said in the petitions wa:s that the
Transport Controller was only in-charge of the
transport Rervices in the State and there was no
State Transport Undertaking in the State of Orissa
within the meaning cl. (b) of s. 68A of the
Act. This case has been abandoned; but it is now
contended is that even though there may be a State
Transport Undertaking in Olissa that Undertaking
was not satisfied that it was necessary to take action
in the manner provided in e. 68C. Thia in our
opinion is a question of fact and should have been
specifically pleaded in the petitions so that the
State(may have been able. to make A reply. In the
absence therefore of any averment on this question
11161
Bir.ijmolran
Das Gupta
v.
The State of Orisso
Wanehoo J.
Iill
Birajmoha
o .. Gup14
••
n. St.,. •I Ori=
W-4H J.
IHI
690 SUPREME COURT REPORTS [1962] SUPP.
of fact, we are not prepared to allow the pe itioners
to raise this point in arguments before us.
In the
circumstances we rcjl!ct this contention also .
.
. The I>l;titions therefore fail and are hereby
d1em1BBed with costs-one set of hearing costs.
Petition# di8mi81ed.
P. SRINIV ASA NAICKER
v.
SMT. ENGAMMAL AND ANOTHER
(K. N. WANOHOO and J. C. SHAH, JJ.)
ln•oli .. ncg-Sak of iMol•enl'a properly bv offeial Rtui•ier
-.A.ppeat-Grouncia /or aetting
aaicie IM aa/e-Reoiaio,.__lfigh
Courl'1 juriaciiclion to inl<rfere wilh the ordtr of Diatricl JwlgtThe Provincial Inaolooncy A.cl, 1920 (Vo/ 1920), aa. 59(a),
68, 75.
The official receiver put the properties of the inaolvents N
and his wns for
sale, which were subject to mortgage. The
propcrlics were ultimately knocked down to the appellant
whose bid was the highest. The first respondent made an
avplication under s. 68 of the Provincial Insolvcnty Act, 1920
which was allowed by the Subordinate Judge on the ground
that the price fetched was very low. On appeal under s. 75 of
the Act the District Judge, inter alia, held that the price fetched wao not low. In revision under the proviso to 1. 75 of the
Act, the High Court did not consider whether the order of the
Discrict Judge wao according to law but accepted an offer
made by the first respondent and allowed the revision. petition.
lleld, that the power of che court under s. 68 is a judicial
power, and must be exercised on well rccogni~d principles,
justifying interference with an act of the receiver which he is
empowered to do under s. 59(a) Provincial lnwlvency Act,
1920, and the courc
mu•! not arbilrarily set aside a sale
decidecl
upon by the official receivor, unless there are good
judicial grounds to interfere with the discretion exerci~ hy
the official receiver, for example that there was fraud or
collusion between the receiver and the insolvent or intending
purchaser, or the courl is of the opinion that there were irregularicies in the conduct of the •ale which might have
affected the price fetched at the sale, or price was low as to
justify the Court to hold thac the property should not be sold
at that price.