# Gullapalli Nageswara R"o v. Andhra

- **Citation:** [1962] Supp. 2 S.C.R. 76
- **Court:** Supreme Court of India
- **Decided:** 1960-05-20
- **Case number:** Writ No. 3116 of 1960
- **Bench:** B. P. ~Inha, K. SuBBA RAo, J. C. Shah, Raghubar Dayal, J. R. MuoHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gullapalli-nageswara-r-o-v-andhra-2344
- **Pages:** 17

## Headnote

. . Road. TraMport-Nalilmaliaut.on of roulu-S<.M<M-lnitialwn by Blau Ootier1tmu1t, if invalid-CanctllalU>11 of permit
-11'/aether can
b<
chalungtd-Motor Vthiclu Act,
1939
(4 of 1939), sa. 680, 68D and 68F.
The appellant, whose permit for pl}·ing stage carriage
was ~hortly to expire, applied for its renewal. The .renewal
application was published in the Gazette calling for objections.
The State Government published a notification p1oposlng to
nationalise the route. The permit was renewed for three rears
for a part of the route but an endorsement was made thereon
authorising the appellant to ply on the remaining part of the
route for four months. The appell.lnt died objection& to the
proposed
scheme for
nationa ... ation. The objections were
heard
by the Joint Secretarf, Judkial Departtncnt, who
approved the scheme with certain inodifications. The scheme
was published in the Gazette. Thereaftor, a
notification was
issued under s. 68F of the Motor Vehicles Act cancelling the
appellant's renewed pennit. Undor the Scheme the stage
carriages of the State Transport Undertaking could ply on the
route without obtaining permits. The appellant challenged
the validity of the ocheme and the cancellation of his licence.
Htltl, that the scheme was valid and the appellant's
licence was properly ot.ncelled.
Section 68C of the Motor Vehicles Ad re~ the
schtmo to be
initiated by the State
'rraiu~ Unclcrtakillg.
Even though \he. scheme in the~
cast was actlfally initiated by the State Government there was no non-compliance
with the provisions of s. 68C. There was no dlft'erenc:e bctwccri
an undertaking run by a department of the State Govenunent
an~. that run by
the State Gov<Ttlment. In either cue the
undertaking was run hy the State and it was a State transport
undcrtaking within the meaning of s.
68C.
Initiation of the
scheme by the State Government running an undertaking wu
initiation by the statutory authority i.e., the State Transport
undertaking. The appellant could not be allowed to challenge
the validity of the scheme on the around that the Joint Se<:retary was not lawfully i11verted with the au!l'ority to hear _objl'Ctions and to approve the scheme as the pomt wu not raiM:d •t
the proper stage.
•
'
,•
(2) S.C.R. SUPREME OOURT REPORTS
77
Gullapalli Nageswara R"o v. Andhra
Prarlesh State Roa4
Transport Corporaticn, [1959] Supp. I S.C.R. 319, applied.
The scheme having been validly promulgated and having
become final under s. 680(3) it had the effect of extingui5hin~
all rights of the appellant to ply his. sra~.e carriage under his
permit and he could n'>t m'lintain a petition under Art. 221) of
the Constitution. The order passed by the Regional Transport
Authority cancellin"{ the appellant's permit was purely con<; ..
quential on the scheme and could not be
challenged if the
scheme was valid. Once the right of tho
appellant to ply his
stage carriag;e was validly
extinguished he could not question
the right of the State transport authority to
ply their stage
carriages with or without permits.
Ab.dul Gafoor, Proprietor,
Shaheen Motor Service v. State
of My.ore, A.LR. 1961 S.C. 1556, applied.

## Text

76
SUPREME COURT REPORTS [1962) SUPP.
KALYAN SINGH
t'•
STATE OF U. P.
(B. P.
~INHA, C.J., K. SuBBA RAo, J. C. SHAH,
RAGHUBAR DAYAL and J. R. MuoHOLKAR, JJ.)
. . Road. TraMport-Nalilmaliaut.on of roulu-S<.M<M-lnitialwn by Blau Ootier1tmu1t, if invalid-CanctllalU>11 of permit
-11'/aether can
b<
chalungtd-Motor Vthiclu Act,
1939
(4 of 1939), sa. 680, 68D and 68F.
The appellant, whose permit for pl}·ing stage carriage
was ~hortly to expire, applied for its renewal. The .renewal
application was published in the Gazette calling for objections.
The State Government published a notification p1oposlng to
nationalise the route. The permit was renewed for three rears
for a part of the route but an endorsement was made thereon
authorising the appellant to ply on the remaining part of the
route for four months. The appell.lnt died objection& to the
proposed
scheme for
nationa ... ation. The objections were
heard
by the Joint Secretarf, Judkial Departtncnt, who
approved the scheme with certain inodifications. The scheme
was published in the Gazette. Thereaftor, a
notification was
issued under s. 68F of the Motor Vehicles Act cancelling the
appellant's renewed pennit. Undor the Scheme the stage
carriages of the State Transport Undertaking could ply on the
route without obtaining permits. The appellant challenged
the validity of the ocheme and the cancellation of his licence.
Htltl, that the scheme was valid and the appellant's
licence was properly ot.ncelled.
Section 68C of the Motor Vehicles Ad re~ the
schtmo to be
initiated by the State
'rraiu~ Unclcrtakillg.
Even though \he. scheme in the~
cast was actlfally initiated by the State Government there was no non-compliance
with the provisions of s. 68C. There was no dlft'erenc:e bctwccri
an undertaking run by a department of the State Govenunent
an~. that run by
the State Gov<Ttlment. In either cue the
undertaking was run hy the State and it was a State transport
undcrtaking within the meaning of s.
68C.
Initiation of the
scheme by the State Government running an undertaking wu
initiation by the statutory authority i.e., the State Transport
undertaking. The appellant could not be allowed to challenge
the validity of the scheme on the around that the Joint Se<:retary was not lawfully i11verted with the au!l'ority to hear _objl'Ctions and to approve the scheme as the pomt wu not raiM:d •t
the proper stage.
•
'
,•
(2) S.C.R. SUPREME OOURT REPORTS
77
Gullapalli Nageswara R"o v. Andhra
Prarlesh State Roa4
Transport Corporaticn, [1959] Supp. I S.C.R. 319, applied.
The scheme having been validly promulgated and having
become final under s. 680(3) it had the effect of extingui5hin~
all rights of the appellant to ply his. sra~.e carriage under his
permit and he could n'>t m'lintain a petition under Art. 221) of
the Constitution. The order passed by the Regional Transport
Authority cancellin"{ the appellant's permit was purely con<; ..
quential on the scheme and could not be
challenged if the
scheme was valid. Once the right of tho
appellant to ply his
stage carriag;e was validly
extinguished he could not question
the right of the State transport authority to
ply their stage
carriages with or without permits.
Ab.dul Gafoor, Proprietor,
Shaheen Motor Service v. State
of My.ore, A.LR. 1961 S.C. 1556, applied.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 325/61.
.
Appeal from the ju'1gment and deoree dated
March 6. 1961. of the Allahabad High Court in Writ
No. 3116 of 1960.
WITH
Petitions Nos. 180, 181 and 205 of 1961.
Petitions Under Art. 32 of the Constitution of
India. for enforcement of Fundamental Rights.
S. N. Kacker and J. P. Goyal, for the appellant (In C.A. No. 325/61) and the petitioner (In
Petn. No. 205/61 ).
H.N. Sanyal, Additional Solicitor-General of Indi.a,
K. L. Misra, Advi>cate-General, U. P.H. N. Seth, J. K.
Srivast'/Ja and 0. P. Lal, for the respondents (in
C.A.No. 325/6,l and Petn. No. 205 of 1961).
J. P. Goyal, for the petitioners (In petitions
Noa. 180 and 181 of 1961 ).
0. P. Lal,, for the respondents (In Petitions
Nos. l80and 181of1961).
1961. December 11.
The Judgment ofthe
(J{)urt was delive:red by
SHAH, J.-The appeal and the writ petitions
pnctically raise the same points and may
be
Ks/yan Sin!h
v.
St11.tt of U. P.
S!Wi J,
1961
Ka(Ntl Singh
v,
Stat1 of U.P.
~/tah J.
78
SUPREME COURT REPORTS (1962) SUPP.
disposed of together. At the out.set we shall briefly
state the facts relevant to each of the said proceedings.
The appellant in Civil Appeal No. 325 of 1961 held
a permit for plying stage carriage on the KanpurBela-Bidhuna route via Chaubepur, in the State of
Utta.r Pradesh. The entire route is 68 miles long,
and a part of the route 16 miles in length i.e.,
Kanpur to Chaubepur, is a notified route. This part
was common between the Raid route and the
Kanpur-Chaubepur-Sarai Miran route, which was a
nationalised route. A condition was, therefore,
attached to the appellant's permit that he would not
be entitl<·d t-0
pick up passengers or drop them
between Kanpur and Chaubepur. His permit was
to expire on June IO, 1960.
Before the said date,
he applied for renewal of his . JX'rmit,
and on May
20, 1960 it was published in the U.P. Govt. Gazette
calling for objections. On the same day, the State
Government published a notification in the Gazetto
proposing to nationalise the said rnute. As the
application for renewal could not be disposed of
before the expiry of the period fixed in the permit
a temporary permit for the route was granted to the
appellant. On July 19, 1960 the application for
renewal of the appellant's permit was considered by
the Regional Transport Authority, Kanpur, and
his permit was renewed for three years with effect
from July 23, I IJ6 t., only in respect of a part of the
old route, namely, Chaubepur-Bela-Bidhuna; but
under the directions of the TranBport Commissioner,
the Region&) Transport Authority made an endorsement on the renewed permit authorizing the appellant to ply his vehicle between Kanpur and Chaube.
pur for a period of four months commencing from
July 23, 1960. As regards the proposed scheme of
nationalization, on June 22, 1960 the appellant
filed his objections thereto. Tho said objections
were heard by
the Joint Secretary, Judicial
1
(2) S.C.R. SUPREME COURT REPORTS
79
Department, who approved .the scheme with some
modifications. The approved scheme was pnhlished
in the Gazette on October 8, 1966.
Under th.e
notification the scheme w:i,s to be pnt into operntion
from October l5, 1960 orthere:i,fter. On November
12, 1960, a notification dated November 4, 1960
was published in the Gazette under s. 68F of the
Motor Vehicles Act cancelling the appellant's
renewed permit with effect from November 27, 1900.
Under the nationlization scheme the stage carriages
belonging to the State Transport Undertaking could
ply on the said route without obtaining permits.
The appellant filed a petition under Art. 2:'6 of the
Constitution in the High Court of Judicature at
Allahabad praying for the following reliefs:-
(a) Thll't a writ in the nature of mandamus
may issue to command the respondents
not to interfere with the Petitioner's right
to ply on Kanpur-Bela-Bidhuna Via
Chaubepur route under the permit duly
renew.ed in his favour till the entire duration of the permit. viz., till July 22, 1963.
(b) That a Writ in the nature of certiorari
may issue to quash so much of the Resolution dated July 19, l!J60 passed by the
Regional ·Transport Authority, Kanpur,
as directs imposition of illegal conditions
to the renewed permit of the petitioner.
(c) That a Writ in the nature of mandamus
may issue to command respondents No. 2
and 3 not to give effect to the illegal
endorsements made on the petitioner's
permit on July 23, 1960 and to treat the
petitioner's permit as h:i,ving been renewed without the illegal. conditions
attached thereto by the two endorsements
da.ted .July 23, 1960, reproduced in paragraph 1.5 of the affidavit.
1961
Kalyan S·in.eh
v.
State of U.P.
Shah J.
lllfl
x,i_,.. SU.,A
v.
si.i. of U.P,
BltahJ.
80
SUPREME COURT REPORTS [1962] SUPP.
( d) That a Writ in the nature of urtiorari
ma.y il!!lle to qua.sh the notific~tions da.ted
May 18, 1960 under seotion 68C of the
Act,
so a.!Ro the subsequent notificmtions
under section 68D(2) of the Act dated
September 26, 1960 a.nd the notification
dated November 4, 1960 under section
68F(2) of the Act in rega.rrl to Kanpur·
Bela-Bidhuna route.
(e) That a Writ in the nature of mmulamu.,
may iasue directing the respondents Nos.
l to 3 not to ¢ve effect to the notifications dated May 18, 1960, September 26,
1960 and November 4, 1960 in regard to
Kanpur-Bela-Bidhuna. route.
(f) Tha.t an interim direction may il!llUe to
the respondentAI Nos. 2 a.nd 3 not to
interfere with the Petitioner's right to
ply on the entire Kanpnr-Bela-Bidhuna.
route under the renewed permit irrespec·
tive of the illegal conditions a.tt.a.ched
thereto or of the illegal scheme for
the na.tiona.liza.tion of the said route.
(g) Tha.t oosts of this petition ma.y be a.ward·
ed to the Petitioner a.e against the opposite
parties.
On December 2, 1960 the High Court made an
interim order directing the St.ate of Uttar Pradesh
not to interfere with the petitioner opera.ting hie
vehicle on Kanpnr-Bela.-Bidbuna. route in accordance with t'he terms of his J>ermit.
To that writ
petition, the State of Utta.r Pradesh, the Regional
Transport Authority, a.nd the Secretary to Regional
Transport Authority, were ma.de respondents. The
rdllpondents opposed the petition.
On Ma.rch 6,
1961 a. Division Bench of the High Court, accepting
the contentiona raised by the respondents, dismiss·
ed the petition. Hence the appeal.
(2) S,C.R. SUPREME COURT REPORTS
81
Writ Petition No. 205 of 1961 is filed in this
Court by another operator under Art. 32 of the
Constitution. He was plying his stage carriage on
the Jaunpur-Shahganj route in Uttar Pradesh under
Permit No. 430, which was valid npto M1rch 15, ·
1962.
The State Government published in the
Gazette dated July 23, 1960 a notification dated
July 15, 1960 under s. 68C oft.he Act proposing to
nationalize the said route along with another route.
The petitioner and others filed ol;ijections against
the scheme within the time prescribed. The objections were heard by the Joint Secretary, Judicial
Department, who. approved the scheme.
The
approved scheme was published in the U. P: Official
Gezette dated February 25, 1961.
Thereafter, the
Secretary to the Regional Transport Authority,
Allahabad, issued a notification dated July 29, 1961
wherein it was stated that the permits of the
op~rators on the said routes including that of the
petitioner would stand cancelled and that the
notification would come into force upon the expiry
of 15 days from the date of publication of the said
notification.
The petitioner has filed the present
writ petition asking for the following reliefs :-
(a)
A writ in the nature of certiorari quashing
the n•.1tifications ( Annexures A, B and C
to this writ petition).
(b) A writ in the nature of mandamus directing the respondents not to give effect to
the notifications.
(c)
A writ in the nature of mandamus commanding the respondents not to interfere
with the rights of the petitioner to ply
his stage carriage on the aforesaid route
(JaunpurShahganj route), due to the
aforesaid scheme.
(d)
Award the costs of this petition to the
petitioner.
19~1
Kalyan Singh
v.
Stale of U.P.
Shoh J.
1981
Ira1;1.,, Sinrh
••
S~11 of U.P.
S""'1J.
82
SUPREME COURT REPORTS [1962] SUPP.
Writ Petitions Xos. 180 and 181 of 1961 relate to
the route ltoberta.sgunj-Dudhi-Mamhani. The State
Government issued a notification dated July l:l,
1960, proposing to. nationalize the said route and
published tho same in the Gazette on July 23, 1960.
Tho petitioners filed objections against the scheme
and the said objections were hear<l by the Joint
Secretary, Judicial DeparlmPnt, and the scheme
was finally approved hy him.
The approved
s<'heme was notified in the Gazette on ~fay 20,
1961.
Under the said notification, the State
Transport Undertaking would commence to operate
its stage carriage service on the said route from
July 15, 1961 or thereabout.
Aggrie\"ed hy tho
said scheme, the petitioners filed tho said petition
for writs in thiH Court for reliefs similar to those
in the ot.h!'r petition.
Mr. Karker, learned counsel for the petitioner
in Writ P<'tition No. 205 of 1961, raised the following points : (I) Under s. 68C of the l\Iotor VPhicles
Act, tho State Transport Undertaking has to form
its opinion and prepare a scheme for nationalisation
and publiHh it in the manner prescribed thereunder, but in the present !'ases the State Govnnment initiated the schemes and,
therefore, the
schemes wi•re not· validly made; (2) A6 neither the
objections to the propo8ed scheme were heard nor
were they approved by the State 1;0,·crnment,
as thf'V "honld Le under s. 68D of thfl
Motor
Vehicles Act, the schemes were in\'alid; (:!) The
Rfgional Transport Authority acted
ill•·l!all,v in
curtailing the period of renewal-this qut>stion
arises only
in
the appPal; (4)
Tht>
Regional·
Transport Authority had not applied its mind in
dealing with the renewal appliration but mechanii:ally followed the provisions in the proposed
S<'hemes and, therefore, its order was l;ad: (5) Even
after tho approval of the nationalisation schemes,
the State owned buses wflro required to apply for
and get permits under the Act and plying of buses
\-
(2) S.C.R.
SUPREME COURT REPORTS
83
by the State without permits was illegal; and
(6) The Secretary to the Regional Transport
Authority had no jurisdiction to issue an order
under s. 68F (2) of the Motor Vehicles Act, since
under the said section only the Regional Transport
Authority had the power to do so -this question
arises only in Writ Petition No. 205 of 1961.
To appreciate the first argument it is necessary to notice briefly the relevant provisions of
Ch. IVA of the Motor Vehicles Act, 1939 (IV of
1939 )-hereinafter called the Act.
Section 68A(b)
defines "State transport undertaking" to mean
"any undertaking providing road transport service,
where such undertaking is carried on by (i) the
Central Government or a State Government ...... ".
Section 68C reads. :
"Where any State tramport undertaking
is of opinion that for the purpose of providing
an efficient, adequate,
economical
and
properly co-ordinated road transport service,
it is necessary in the public interest that
road transport services in general or anv
particular class of such service in relation
to any area or route or portion thereof should
be run and operated by the State transport
undertaking, whether
to the exclusion,
complete or partial, of other persons or
otherwise. the State transport undertaking
may prepare a scheme giving particulars of
the nature of the services proposed to be
rendered, the area or
route
proposed to
be covered and such other particulars respecting thereto as may be prescribed and
shall cause every such scheme to be published
in the Official Gazette and also in· such other
manner as the State·
Government may
direct".
Section 68D reads :
"(I) Any person affected by the scheme
published under section
680 may, within
Kalyan Sinth
v.
Stat' of U.P.
Shah J.
11111
1'a1Jan Sinih
v,
Stall of U.P.
•
~hali J,
84
SUPREME COURT REPORTS [1962] supP·
thirty days from the date of the publication
of the scheme in the Official Gazette, file
objections thereto before tho State> Govern·
rnent .
(2) The State Government may, after
considering the objections and· after giving
an opportunity to tho objentor or his representatives and the rcpresontatives of the
Stat'l Transport undertaking to be hw1r~ in
tho matter, if they so desire, approve or
modify the scheme"
Section 68E provides for the cancellation or modi·
fication of the scheme by the State transport under·
taking;
and in that event the same procedure
prescribed for framing a scheme is to be followed.
The c!T,•ct of tho said provisions, in so far a.a
they are relevant to the present inquiry, may be
stlj.ted thus : The State transport undertaking is
an und'lrtaking providing road transport service
which is carried on by the State or any other cor·
poration or authority mentioned in s. 68A. The
definition creates a
statutory authority distinct
from authorities which run it.
This is made clear
by s. 680 .whercunder it is the State tra.nsport
undertaking that will have to form the requieite
opinion. This is further elucidated by the fa.ct
that under s. tiSC of the Act the State transpQrt
unclertaking is required to pubfoh the proposed
scheme in the Official Gazette and also in such
other manner as the State Government mav direct.
This distinction between the two entities i". further
made <·l•·ar by s. tioD(:.'] whC"rcur:der the State
Government has to hear thu rcprest·ntatives of the
Stat•• Transport
undertaking.
Briefly stated,
under the said provi8ions, a 8tatutory authority
ca lied thl' State transport undertaking i8 created
it is authorised to initiate a scheme of nationlisa.-
tion of road transport, the aggrieved parties are
given opportunity to filo objections thereto, and
I
I
I
(2) S.C.R. SUPREl\IE COURT REPORTS
85
the State Government is empowered to hear both
the parties and approve or modify the scheme, as
the case may be. Counsel for the appellant contends that the underlying scheme of the Act cannot be worked out unless a c !ear distinction is
maintained between the State transport undertaking and the State Government, for, if one is
equated with the other, the State Government
would become a judge of its own cause, and that,
therefore, it was ineumbent upon the Government
to form a separate and distinct authority to enable it to initiate a scheme in accordance with
law.
Counsel for the State contends that a trans·
port undertaking run by a State Government is a
i:ltate transport undertaking and, therefore, the
scheme initiated by the State Government which
runs the State undertaking is a scheme initiated
by the said undertaking.
It is true that the provisions maintain a
distinction between a i:ltate transport undertaking
and the State Government.
It is also true that
the State Government has to hear the objections
df the aggrieved parties and also the representatives
of the State transport undertaking before approving or modifying the scheme, indicating thereby
that the State Government has to decide the dispute that may arise between the two contestants.
Though the functions of the different bodies are
clearly demarcated in the case of undertakings run
by corporations, there is overlapping in the case
of an undertaking run by a State Government. This
may lead to anomalous position, but in practice
it can be avoided, if the State Government creates
a department to be in charge of the undertaking
and hears the objections and approves or modifies
the scheme in a manner without violating the
principles of natural justice.
1961
K alyan Sinzh
T,
Sta(, of U.P.
Shah J.
1161
Ea()'• 8U.,h
v.
S"i' •f U.P.
SWJ.
86
SUPREME COURT REPORTS [1962) SUPP.
A
Sta.te transport
undertaking
me8ll8,
inter alia, an undertaking run by a State. The
statutory authority created is an undertaking run
by a. State. Tho State can only run an undertaking through its officers ; it ma.y entrust the conduct
of the trausport service to a. particular officer or
to a department of the State ; in either event, it
is the Stato Government that runs the undertaking.
The statutory authority, namely, the Sta.te transport undertaking, ha.s to . form an opinion within
the meaning of s. 68C of the Act, and the opinion
must nece88arily be that of the State Government
which runs it. If the State Government running
an undertaking forms· a.n opi111ion, it can legitima·
tely be said that the statutory authority i. e., the
State transport undertaking, has formed the
opinion.
Jn Gull.apaUiNage8Wara Rao v. Andhra Prade,ih
Swte 1UJarl, 'l'ransport Corporation (') before the State
of Andhra w&B formed in November, 1956, the Motor
Vehicles (Hyderabad Amendment) Act, 1956 was
in force in Teleoga.na area. Under the ea.id Act
thti Sta.te transport undertaking was defined to
mean the rt>ad transport department of the State
providing road service. After the Andhra Pradesh
State w:as formed, that department initiated the
scheme and this Court held that the said department clearly fell within the definition of state
transport undertaking.
This Court observed in
that case :
"The State Government maintained the
department for providing road transport
service and therefore the department clearly
falls within the definition of State Tran.sport
Undertaking."
If a state directly runs an undertaking, it oa.n only
be through a department. In law there oannot be
any difference between an undertaking run by
a departm1int of a State Government and that run
(I) (1959] Supp. I S.C.R. 319, 335.
(2) S.C.R. SUPREME COURT REFORTS
87
by the State Government.
In either case the
undertaking is run by the State and that undertaking is a State transport undertaking within the
meaning of s. 68C of the Act.
The opinio.n must necessaril) he formed by
somebody to whom, under the rules of business, the conduct of the business is entrusted
and that opinion, in law, will he the opinion of the
State Government. It is stated in the counteraffidavit that all the concerned officials in the
Department of Transport considered the draft
scheme and the said scheme was finally approvfld
by the Secretary of the Transport Department before the notification was issued. It is not denied
that the Secretary of the said Department has
power under the rules of business to act for the
State Government in that behalf. We, therefore,
hold that in the present case the opinion was
formed by the State transport undertaking within
the meaning of s. 68C of the Act, and that there
was nothing illegal in the manner of initiation of
the said scheme.
The second ground urged by counsel for the
appellant that the scheme was invalid because the
objections to the scheme were heard and the scheme
was approved by the Joint Secretary, Judicial
Department, who was not lawfully invested with
authority in that behalf is for reasons to be presently stated not open to the appellant. By the first
sub-section of s. 68D which we have already set
out persons affected by a transport soheme are
entitled to file objections thereto. By sub-section
(2), the tltate Government.is authorised to approve
or modify, the scheme a.fter considering the objections, if any, and after giving an opportunity of
being heard in the matter to the objector or
his
representatives
and
the
representatives
of the
State
transport undertaking. Sub-section (3) provides for the
publication of the
1961
K alyan Singh
v.
Stale of U.P.
Shah J.
11¥1
XoiJci SU.,h
v.
SIMI of U.P.
SWJ1
88
SUPREME COURT HEPORTS [1002) SUPP.
approved nr modified sc·hcme in the Oltic1al Gazette
by the Stnte Government and on such pu hlication
the scheme becomes final.
It must at 0nce be
obaervod that neither
in the
petition
under
Art. 226 of tho Constitution to the High Court,
out of which Civil Appeal ~o. 325 of I !Jtil arises,
nor in thP Writ Petition under Art. 32 (No. 205 of
I 961) prei,ented to this Court, was the plea raised
that
the
Joint
Secretary
to
the Judicial
Department was not authorised to hear the objection and to approve the scheme. In the petition
(No. 205 of J96f') under Art. 32 of the Constitution
it was averred by the petitioner in para 10 that "the
petitioner filed objections under s. 68D( I) of the Act,
against the scheme of tht> State Government, and
it also heard its own representatives in opposi~ion
to the petition" and again it was averred in tho
same paragraph "at the time of hearing of the
petitioner's objections under section-68-D, B•fare the
St.ate Gavcrnment it was argued on behalf of the
petitioner that tho aforesaid scheme was bad .... " In
the petition under Art. 226 of the Constitution it was
averred in paragraph 25 '•That no State Transport
Undertaking having been constituted the State
Governm .. nt initiated the Rcheme a.nd heard its own
represent .. ti ves on 13.8.1960.
The petitioner has
bmUJfie,d belief that the Joint Secretary to' the
Government of Uttar Pradesh (Judicicil Department) who heard the objections acted with bias
against tho petitioner." Even In the petition for
special le•wo to appeal to this Court, no such objection was raised.
There is also no reference to any
such contention in the judgment of the High Court.
The validity of tho ·scheme on this ground is sought
tu be raised for the first time in this Court, and,
according to the settled practice of this Court the
appellant except in exceptional circumstances and
there are none such in this case-is not entitled to
ra.iso this argument for tho first time at the hearing
in this Court. It was urged in the course of the
2 S.C.R.
SUPRE~1E COURT REPORTS
89
argument that by Rule 7 of the State Land Transport Services Development Rules 1958, which at
the material time read as follows :
"(l) The objections received shall be considered
by the judicial ·Secretary to Government of
U. P., or an officer of his department, riot
below the rank of Joint Secretary, nominated
by the former for the purpose.
x
x
x
x
x
x
x
x
x
x
(5) After hearing of such parties as· appear, the
officer shall give a decision
whether the
scheme be approved or modified as he may
deem proper",
no authority was lawfully conferred upon the Joint
Secretary, and the proceedings of the Joint Secretary in. purported exercise of powers under s. 68D
(2) were without jurisdiction. But this is another
facet of the same arg11ment, and it is clear from a
perusal of the petitions before the High Court and
this Court and the judgment of the High Court that
it was never raised.
There is no doubt that the scheme has been
duly published under s. 68D(3) and if the objection
to the invalidity of the scheme on the ground that
the objections were not heard by an authority
competent in that behalf cannot be permitted to be
raised in this Court for the first time during the
course of the arguments, the statutory consequences
prescribed by s. 68F must ensue.
It is necessary to bear certain facts and con
siderations in mind in dealing with the remaining
contentions. By the scheme (el. 7) the permit of
the appellant was cancelled.
The scheme as
approved was. published in the U.P. Gazette on
Octobers, 1960, and was to come into operation
en October 15, 1960, or thereafter. A notification
was published on November 4, 1960, under s.68F(2)
1961
Katyan Singh
v.
State of U. P,,
Shah
0J.
/8dl
A·al.Jt111 Sinth
v •
.Sict~ of U .P.
!;'"'11 J.
~O
SUPHEME COURT REPORTS [1962] SUPP.
of the Act cancelling the appellant's permit with
effect from November 27, 1960. 'fhe appellant
therefore ceased to have any right to ply his vehicles on the route and he had no right to object to
the vehicles of the State transport undertaking
plying on that route. If the scheme was valirUy
promulgated a.nd became fin11.J within the meaning
of s. 68 U(:l ), it had the effei·t of extinguishing a.II
rights of the appellant to ply his vehicles under his
permit. After cancellation of his permit, he could
not ILaintain a petition for writ under Art. 226
because a r-ight to ma.intain such a petition postulates a subsisting personal
right in the claim
which the petitioner makes and in the proteotion
of which he is personally interested. It is true that
the a.ppella.nt did at the date of the petition filed
in the High Court hold a permit which was to
enure till the :.!ith November, 1960. But if the
permit was validly terminated from the date specified, ho will not be entitled to relief even if he had
on tho date of the petition a subsisting right.
Ground No. 2 must therefore fail.
Grounds 3 and 4 of tho appellant that the
Regional Transport Authority acted
illega.lly in
curtailing the period of renewal and that, in any
event, it did not apply its mind in <lea.ling with
the renewal application but machanically followed
the provi8ions of the scheme may now be considered.
The Regional Transport Authority was by theterms of the scheme left no discretion in the matt.er.
It was by tho scheme that the right of the
appellant was restricted and if tho scheme became
final and binding the Regional Transport Authority
had no authority to permit the appellant to ply
his vehicles. The order passed by the Regional
Transport Authority Wll..8 purely consequential on
the scheJI1e, and if the scheme is not open to
challenge, orders consequential thereon will not
-
2 S.C.R. SUPREME COURT REPORTS
91
also be open to challenge. We are supported in this
view by the
observations
of this Court in
Abdul Gafoor: Proprietor, Shaheen 1l1otor Service v.
The St.ate of Mysore (') that :
"It appears to us that when deciding
what action to take under s. 68F(l) the
authority is tied down by the terms and
conditions of the approved scheme and his
duty is merely to do what is necessary to
give effect to the proviaions of the schemes.
The refusal to entertain applic.ations for renewal of permits or cancellation ol permits or
modification of terms of existing permits
really flow from the scheme.
The duty is
therefore merely mechanical; and it will be
incorrect to say that there is in these matters
any lie between the existing operators and the
State Transport Authority. There is no justification therefore for saying that when taking
action under s. 68F( 2) is really independent
of the issue of the permits under s. 68F( 1).
Once the scheme has been approved, action
under s. 68F( 1) flows from it and at the same
time action under s. ti8F(2) flows from the
same scheme".
We are bound by the decision.
We are not called upon to consider whether
the State owned buses are being validly plied without obtaining permits under s.68F(l) of the Act. If
the right of the appeilant to ply his buses is lawfully
ext.inguished, he is not entitled to maintain an
appeal challenging the right of the State Transport
Undertaking to ply their bnses with or without permits. Nor is any fundamental right of the appellant
infringed by the State Transport Undertaking plying
its buses without permits, and a petition under
Art. 32 'of the Constitution cannot be maintained
unless a fundamental right of the applicant is
infringed.
(1) A.I.R, (1961) S.C. 15, 5i.
19111
Kalyan Sinth
••
Stale of U.P
8}wh J,
1961
Kalyan Singh
v.
Stattof U.P.
ijllafl J.
92
SUPREME OOURT REPORTS [1962) SUPP.
Nor is there any substance in the last contention. The orders pa.88cd under 88. 68F(2)(a) and
(b) flow from the publication of the scheme duly
approved and the issue of an order, which is not
quasi-judicial but administrative, by the Secretary
on behalf of the Regional Transport Authority is
not open to challenge. It is not the case of the
Petitioner in W. P. 20!!/u I in which alone. this
contention is raised that the order unauthori8ed:
what is contended iR above this contention is raised
that the order is being quasi-judicial, power to make
it cannot be delegated. But for reasons already set
out the order is not quMi· judicial; it is purely
administrative.
In our view, therefore, th& appeal and the
petitions must fail, and are dismissed with costs.
THE STATE OF BOMBAY
v.
F. A. ABRAHAM
(P. B.
G.A.JENDR.AGADK.AR, A. K. SARKAR, K. N.
W A.NCHOO, K. C.
DAS GUPTA and N. RAJAGOPA.LA
AYYANGAR, JJ.)
Government Seruant-0.Jficialing Po1t-ReverUd from, for
uniatis/actory work-I/ amoulll& lo p»niall,,..,.t-Re/wal by
Government to furni&la reaaon of rever6icm if prot1u IAal tlu ,....,._
•icm waa tn lhe nature of pvniahment-Government of I11dia
Acl, 1936(26 Ueo. 6 Lia. 21; •· UO(J)-Conatitution of Illdia,
Art. 311.
The respondent who held the substantive post of lnspe~
tor of Police and had been officiating as the Deputy Superintendent of Police was reverted" to his original rank of lmpector
without being given any opportunity of being heard in reJPCCt
of the reversion.
His request to furnish him with reasona of
his reversion was refu.aed. Later a Departmental enquiry was
held behind his back in respect of certain allegations of mis.-
conduct made agaimt him in a conidcntial communication
from the District Superintendent of Police to· the Deputy
Inspector-General of Police but these allegatiom W"'..rc not
proved at the enquiry. The Inspector-General of P~licc
however thereafter wrote to the Government that the respondent's previous record was not aatilfactory and that he had