# SOBHRAJ ODHARMAL v. STATE OF RAJASTHAN

- **Citation:** [1963] Supp. 1 S.C.R. 99
- **Court:** Supreme Court of India
- **Decided:** 1960-09-10
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sobhraj-odharmal-v-state-of-rajasthan-2760
- **Pages:** 14

## Headnote

1 S.C.R.
SUPREME COURT REPORTS
99
SOBHRAJ ODHARMAL
v.
STATE OF RAJASTHAN
(B. P. SINHA, C. J., JAFER !MAM, K. SuBBA RA.o,
J. c. SHAH, N.. RAJAGOPALA
AYYANGAR AND
J. R. MuDHOLKAR, JJ.)
Road Transport-Scheme-Objections--Notice of hearingWhether sufficient-Approval o.f Scheme-:-Cance.llation o.f P.ermits
of private operators-State plying vehicles unthout permits-.Jf
infringes fumlamental right-Motor Vehicles Act, 1939 (4 of
1939), ss. 42 (1) and 68R-Rajasthan State Road Transport
Service (Development) Rules, 1960, r. 7(4).
A scheme for operating a motor transport servic~ on t~e
Jaipur-Kotah route by the State Roadways was published m
the Government Gazette.
61 private operators on the route
filed objection·; to the scheme. The Legal Remembrancer heard
the objections and rejected them. The scheme was approved by
the Slate Government and
was published. Sorne of the
operators moved the High Court for a writ quashing the scheme.
The High Court allowed the petition, set aside the scheme and
directed the Legal Remembrancer to rehear the objections. The
Legal Remembrancer sent individual notices by registered post
to the 61 operators fixing the date of hearing and also published
the notice in the Gazette. Notices were delivered to 13 operators
and 39 were returned unserved. The Legal Remembrancer
heard the objections and approved the scheme, which was then
published in the Gazette. The Regional Transport Authority
issued an order declaring that the Roadways shall operate on
the route and cancelled the permits of the private operators.
The Roadways commenced operating without permits but
subsequently they were granted permits. The appellants moved
the High Court for a writ to quash the scheme but the High
Court rejected the application. The appellants appealed to the
Supreme Court against tjie order of the High Cour•; one of them
filed a petition for a writ alleging that his right to carry on
business was
infringed.
The appellants contended that the
proceedings before the Legal Remembrancer were illegal as
not!ces wer~ not served upon all_ th~ operators, that r.7(4)
which provided that on the pubhcat10n of the notice in the
Gazet\e it shall be presumed that all the parties concerned have
bee~ duly intimated was illegal and that the plying of the
vehicles by the Roadways without obtaining permits infringed
1962
September I 7.
1962
S(Jbhra} Odharmal
v.
State of Rajasthan
100 SUPRE.ME COURT REPORTS [1963] SUPP.
the fundamental rights of the appellants to carry on their
trade.
Hekl, that the appellants were duly served with the
notice of hearing of the objections before the Legal Remembrancer, and if they failed to appear before him to press their
objections they could not challenge the scheme after it was duly
published and had become final. The Legal Remembrancer
was of the opinion that even those operators who had not been
personally served had notice of the heariug. The opinion of
the Legal Remembrancer was based upon evidence and he did
not rely upon the presumption under r. 7 ( 4). The High Court
had also held that the objectors were duly served and the
Supreme Court, according to its settled practice, did not interfere
with such findings.
H~U, further,
that no fundamental right
of
the
appellants was infringed. Once a scheme was legally and
properly made and published, the permits of the private
operators on the route could be lawfully cancelled and they
would not be entitled to challenge the plying of the vehicles
by the State Roadways with or without permits. Since the
permits of the appellants were lawfully cancelled their rights
were extinguished and they had no fundamental rights which
could be infringed. On the finalisation of the scheme the
Regional Transport Authority had no option but to grant
permits to the State Roadways.
Abdul Gafoor v. State of Mysore, [1962] I S.C.R. 909,
Samarth Transport Co. (P) Lid. v. Regional Transport Authority,
(1961) I S.C.R. 631 and Kalyan Singh v. State of U. P.
[1962] Supp. 2 S.C.R. 76, referred

## Text

1 S.C.R.
SUPREME COURT REPORTS
99
SOBHRAJ ODHARMAL
v.
STATE OF RAJASTHAN
(B. P. SINHA, C. J., JAFER !MAM, K. SuBBA RA.o,
J. c. SHAH, N.. RAJAGOPALA
AYYANGAR AND
J. R. MuDHOLKAR, JJ.)
Road Transport-Scheme-Objections--Notice of hearingWhether sufficient-Approval o.f Scheme-:-Cance.llation o.f P.ermits
of private operators-State plying vehicles unthout permits-.Jf
infringes fumlamental right-Motor Vehicles Act, 1939 (4 of
1939), ss. 42 (1) and 68R-Rajasthan State Road Transport
Service (Development) Rules, 1960, r. 7(4).
A scheme for operating a motor transport servic~ on t~e
Jaipur-Kotah route by the State Roadways was published m
the Government Gazette.
61 private operators on the route
filed objection·; to the scheme. The Legal Remembrancer heard
the objections and rejected them. The scheme was approved by
the Slate Government and
was published. Sorne of the
operators moved the High Court for a writ quashing the scheme.
The High Court allowed the petition, set aside the scheme and
directed the Legal Remembrancer to rehear the objections. The
Legal Remembrancer sent individual notices by registered post
to the 61 operators fixing the date of hearing and also published
the notice in the Gazette. Notices were delivered to 13 operators
and 39 were returned unserved. The Legal Remembrancer
heard the objections and approved the scheme, which was then
published in the Gazette. The Regional Transport Authority
issued an order declaring that the Roadways shall operate on
the route and cancelled the permits of the private operators.
The Roadways commenced operating without permits but
subsequently they were granted permits. The appellants moved
the High Court for a writ to quash the scheme but the High
Court rejected the application. The appellants appealed to the
Supreme Court against tjie order of the High Cour•; one of them
filed a petition for a writ alleging that his right to carry on
business was
infringed.
The appellants contended that the
proceedings before the Legal Remembrancer were illegal as
not!ces wer~ not served upon all_ th~ operators, that r.7(4)
which provided that on the pubhcat10n of the notice in the
Gazet\e it shall be presumed that all the parties concerned have
bee~ duly intimated was illegal and that the plying of the
vehicles by the Roadways without obtaining permits infringed
1962
September I 7.
1962
S(Jbhra} Odharmal
v.
State of Rajasthan
100 SUPRE.ME COURT REPORTS [1963] SUPP.
the fundamental rights of the appellants to carry on their
trade.
Hekl, that the appellants were duly served with the
notice of hearing of the objections before the Legal Remembrancer, and if they failed to appear before him to press their
objections they could not challenge the scheme after it was duly
published and had become final. The Legal Remembrancer
was of the opinion that even those operators who had not been
personally served had notice of the heariug. The opinion of
the Legal Remembrancer was based upon evidence and he did
not rely upon the presumption under r. 7 ( 4). The High Court
had also held that the objectors were duly served and the
Supreme Court, according to its settled practice, did not interfere
with such findings.
H~U, further,
that no fundamental right
of
the
appellants was infringed. Once a scheme was legally and
properly made and published, the permits of the private
operators on the route could be lawfully cancelled and they
would not be entitled to challenge the plying of the vehicles
by the State Roadways with or without permits. Since the
permits of the appellants were lawfully cancelled their rights
were extinguished and they had no fundamental rights which
could be infringed. On the finalisation of the scheme the
Regional Transport Authority had no option but to grant
permits to the State Roadways.
Abdul Gafoor v. State of Mysore, [1962] I S.C.R. 909,
Samarth Transport Co. (P) Lid. v. Regional Transport Authority,
(1961) I S.C.R. 631 and Kalyan Singh v. State of U. P.
[1962] Supp. 2 S.C.R. 76, referred to.
CIVIL
APPELLATE/ORIGINAL
JURISDICTION :
Civil Appeal 471of1962.
Appeal from the judgment and decree dated 9th
May, 1962, of the Rajasthan High Court in D. B.
Civil Misc. Write No. 214 of 1962.
WITH
Writ Petition No. 66 of 1962.
Petition under Art. 32 of the Constitution of India
for the enforcement of fundamental rights.
M. C.
Set,alvad,
Attnrney-General for India,
R. K. Garg, D. P. Singh, S. C. Agarwala a~? .M. K.
Ramamur.thi, for the appellants and the petitioner.
1 s.c.R. SUPREME COURT REPORTS
101
C. K. Daphtary, Solicitor-General for India, 8. K.
Kapoor, K. K. Jain and P. D. Jlferwn, for the
respondents (in the appeal and the petition).
1962. September 17. The Judgement of the Court
was delivered by
SHAH, J .-Questions relating to the validity of a
scheme approved by the State of Rajasthan under
s.68D of the Motor Vehicles Act, 1939(4 of 1939) and
its effect are raised by the appeal and the writ petition.
In the appeal the validity of the scheme is challen.~ed
on the pica that the appellants were denied reasonable
opportunity of being heard in support of their objections before the scheme was approved.
In the writ
petition it is submitted that the fundam<:"ntal right of
the petitioner to carry on business of a motor transport
operator is infringed by the State of Rajasthan plying
its buses along the route covered by the scheme without obtaining permits under s.42( I} of the Motor
Vehicles Act.
A scheme for operating a motor transport service
on the .Jaipur-Tonk-Deoli-Kotah route was published
on September 10, 1960 in the Rajasthan Government
Gazette, by the Rajasthan State Roadways which is a
State Transport Undertaking within the meaning of
s. 68A(b) of the Motor Vehicles Act, 1939. Sixty-one
persons, including certain holders of ~tage ca1riage
permits authorising them to ply stage carriages on the
route, lodged objections to the scheme with the
Secretary, Government
of Rajasthan, Transport
Department, Jaipur within the period prescribed.
The objections were heard by the Legal Remembrartcer of the State and were rejected by order dated
February 2, 1961. The 8cheme was then approved
by the State Government and was published under
s.68D of the Motor Vehicles Act and r.8 of the
Rajasthan State Road Transport Service (Development) Rules, 1960. Some holders of stage carriage
permits applied under Arts. 226 and 227 of the
Constitution to the High Court of Rajasthan fQr the
1962
Sobhrttj Odharmr1l
y,
State of Rajasthan
Shah, J.
1962
Sobhraj Odharmal
v.
State of Rajas t.~an
S!ta!t, J.
-
102 SUPREME COURT REPORTS (l!)(j3] SUPP.
issue of writs cancelling the scheme.
The High
Court by order dated May 3, 1961, allowed the
petition and set aside the scheme.
The operative part
of the order, insofar as it is material, was as follows :
"The approval of Scheme 'B' .Jaipur-Kotah by
the Legal Remembrancer is quashed and he is
directed to decide the objections of the permit
holders
of Jaipur-Chaksu-Niwai-BanasthaliTonk-Deoli route in accordance with the observations made above.
The Not_ification of the
State Government, publishing the scheme is also
set aside."
Thereafter the Legal Remembrancer sent individual
notices by Registered post pre-paid and addressed
to all the sixty-one objectors fixing June 26, 1961,
for hearing objections, and also published in the
State Government Gazette a general notice to that
effect.
Out of sixty -one notices despatched, thirteen
were duly received by the addressees and thirty-nine
were returned unserved ; about the remaining nine
notices no intimation was received from the· Postal
Department till June 19, 1961. The Legal Remembrancer commenced hearing the objections.
The
proceeding lasted from June 1961 to March 1962.
There were fifteen hearings, at which evidence was
recorded and oral arguments were heard.
The L.:gal
Remembrancer by his order dated March 23, 1962,
approved the scheme subject to certain . modifications.
The scheme as approved was then published on April.
2, 1962, in the Government Gazette.
On May 3/4,
1962, the Secretary, Regional Transport Authority,
Jaipur, issued an order declaring that the State Road
Transport Service shall commence to operate from
May 15, 1962, on the route specified in the scheme
as mentioned in Rule 2 and directed that fifty-five
permits described in the order do stand cancelled.
Pursuant to the scheme the State Transport Undertaking commenced operating its vehicles upon the
route without obtaining permits under s. 42 (1) o
1 S.C.R. SUPREME COURT REPORTS
103
the Motor Vehicles Act.
Subsequently, applications
were submitted to the Regional Transport Authority
for permits and the same were granted to the State
Transport Undertaking on July 28, 1962.
In the mean time, sixteen persons-who will be
hereinafter referred to collectively as appcllantsclaiming that they had not received notice of the
proceedings before the Legal Remembrancer after
the scheme was quashed by the High Court of Rajasthan and the proceedings were remanded, applied
to the High Court under Arts. 226 and 227 of the
Constitution for writs of certiorari quashing the
order of the Legal Remembrancer dated March 23,
1962, and all proceedings after May 31, 1!161, regarding the scheme of nationalisation of Road Transport
Service on the route in question, and the scheme
published in the Rajasthan Government Gazette on
April 2, 1962, and writs of prohibition restraining
the State of Rajasthan,
the
Regional Transport
Authority, the Legal Remembrancer and the Rajasthan State Transport Undertaking from implementing
the scheme and further restraining the Transport
authorities from cancelling their permits for plying
vehicles on the route and restraining the Regional
Transport Authority from granting permits to the
Rajasthan State Transport Undertaking in pursuance
of the impugned scheme. The appellants also claimed
a declaration that cl. ( 4) of r. 7 of the Rajas than
State Transport (Development) Rules, Hl60 and the
public notice dated May 30, 1961, published in the
~ajast~an Government Ga~ettc dated May 31, Hl61,
were illegal, null and vmd and ultm vires" and a
declaration that the proceeding before the Legal
Rememb;ancer was taken without affording any real
opportumty to the appellants to produce their evidence and without hearing
their objections in
accordance with law.
It "'.as urged by the appellant~, inter ali<~, that as
only thirteen objectors were served and the remaining
1962
Sobhraj OJhRrmal
v.
Sta!e of Uaja:Hhan
Sh•h, J.
1962
Sobhr11j Odharmal
v.
Stale uj Rajaslhan
Shah, J.
104 SUPREME COURT REPORTS [19G3] SUPP.
forty-eight were not served with notice of hearing,
the proceeding commenced bcf(ire the Legal Remembrancer, relying upon the presumption of dtie service
under cl. ( 4) of r. 7, wa;> illegal.
The High Court,
without issuing rule upon the State and the Transport
Authorities, dismissed the petition, holding that r. 7
( 4) was not 'Ultru vires the Motor V chicks Act, and
that it was difficnlt, on the material placed before
the Court, to hold that the Legal Remembrancer had
not in fact determined the question of regularity of
service of notice upon the objectors before he commenced hearing the objections.
Against the order dismissing the petition Appeal
No. 'Vil of 19G2 has been filed by the appellants in
this Court. A petition has also been filed by one of the
appellants in this Court under Art. 3~ of the Constitution for a writ of rnanda.rntt8 restraining the State
of Rajasthan, the Rajasthan State Transp'ort Undertaking and the Regional Transport Authority, Jaipur
Region, from "commencing their transport service"
and from interfering with the right of the petitioner
in the exercise of his right to ply stage carriages on
that route under a permit issued by the Regional
Transport Authority and which was, as originally
granted,
valid up to November 30, 1963.
The
petitioner also prayed for a writ or direction quashing
the resolution passed by the Regional Transport
Authority on May, 3/4, 1962, purporting to cancel
his permits without issuing valid permits to the State
Transport Undertaking. The principal ground in
support of the petition was that the State of Rajasthan and the State Transport Undertaking could not
commence to ply their vehicles on the route' without
obtaining valid permits under s. 68F and s. 42 ( 1) of
the Motor Vehicles Act.
Bys. G8C of the Motor Vehicles Act, 1939 (4 of
Hl39) a State Transport Undertaking, if it be of the
opinion as to certain matters specified in the section,
is authorised to prepare a scheme giving particulars
I S.C.R. SUPREME COURT REPORTS
105
of the nature of the service and the area or route to
be covered thereby, and lo publish it in the Government Gazette and in such manner as the State
Government may direct.
Persons affected by the
scheme may lodge objections to the scheme within
the period prescribed.
The objections arc thereafter
heard by the State Government after giving opportunity to the objectors lo support them.
The State
Government may, thereafter, approve or modify the
scheme, and the scheme so approved or modified
when published in the official Gazette becomes final.
Section 68F (I) requires the Regional Transport
Authority, notwithstanding anything to the contrary
contained in Ch. IV, to issue permits to the State
Transport Undertaking for plying vehicles when that
Undertaking applies for permits in pursuance of an
approved scheme.
Sub-section ( 2) of s. 68D provides
that for the purpose of giving effect to the approved
scheme in respect of a notified area or notified route,
the Regional Transport Authority may, by order
refuse to entertain any application for renewal of any
other permit, cancel or modify an existing permit.
Section 681 confers power upon the State Government
to make rules for the purpose of carrying into effect
the provisions of Chapter IV A and in particular for
certain specific matters set out therein.
The Government of Rajasthan framed under s. 68 I rules called
the Rajasthan State Transport Service (Development)
Ruks, 1960.
Rule 3 prescribed the authority which
was to prepare the scheme on behalf of the State
Transport Undertaking, and the matters in respect of
which provisions were to be made in the scheme.
Rule 4 prescribed the method of publication and r. 5
the manner of filing objections. It was provided by
cl. ( 4 \ of r. 5 that the memorandum of objection shall
contain, amongst other, the following information :-
"(a) Full name and address of the objector on
which the service of notice or order under
these Rules may be made ;"
1962
Sobhraj Odharmal
v.
State of Rajasthan
Shah, J.
1962
Sobhraj Odharmal
v.
State vf Rajasthan
Shah,
J.
106 SUPREME COURT REPORTS [1963] SUPP.
Ruic 7 dealt with the procedure for consideration
and disposal of objections. By cl.
( 1) it was
provided that the objections shall be considered by
an officer authorised to do so by the Governor.
The
officer so authorised had by cl. (2) to fix the date,
time and place for hearing objections and to issue·
notice thereof to the objectors
and the General .
. Manager of the State Transport Undertaking asking
them to appear before him.
Clause (3) prescribed
the rncthod of service of notice, that ·'the notice under
sub-rule (:l) shall be sent by Registered post and shall
be posted at least fourteen days before the date fixed
for hearing". Clause (4) provided that -''notwithstanding anything in snb-r. (3) a general notice may
also be given regarding the date, time and place of
hearing of objections by publication thereof in the
oflicial Gazette and where notice has been issued in
this manner, it shall be presumed that all the parties
concerned have been duly intimated".
Rule 8 prescribed the from in which the approved scheme shall
be published and Ruic !) provided for the consequences of publication of the scheme.
The appellants contend that they did not receive
the individual notices sent to them by registered post
and that they "did not at all come to know about the
hearing or the decision of the aforesaid objections by
the Legal Remembrancer till the approved scheme
rdaling to Jaipur"Tonk-Dcoli-Kota route was published in the Rajasthan Government Gazette dated April
2, llJ(j:l".
Opportunity to be afforded to the objector
under s. 68D( 1) must of course be a 1-easonablc opportunity : he must have advance notice of the date, time
and place and designation of the authority who will
hear the objections.
The authority hearing the objections must therefore give notice of the elate, time
and place for hearing the objections. Such notice
must afford reasonable opportunity to the o~jector to
appear before the authority and substantiate his objections. On behalf of the appellants it was submitted
1 S.C.R.
SUPREME COURT REPORTS
107
that the notice sent by registered post which was· not
served because it was never tendered to the addressees,
followed by publication of the notice in the Government Gazette did not amount to affording reasonable
opportunity to the objectors to substantiate their
objections to the scheme. It was contended that
cl. ( 4) of r. 7 which raises a presumption of service on
publication of notice in the Government Gazette is
invalid, because the State Government is not entitled
to deprive the objectors of a reasonable opportunity of
being heard by prescribing a presumption of ~crvice
of notice of hearing merely from publication of the
notice in the Government Gazette. But in considering
this case it is unnecessary to embark upon the larger
question which was canvassed at the Bar, whether
notice given in the manner prescribed by cl. (:3) r. 7
i.e. an individual notice sent by the registered post
followed by a general notice published in the Government Gazette must, because of the presumption contained in cl. (4) of r. 7, always be considered as affording reasonable opportunity to the objectors.
As
already observed sixty-one objectors had filed objections before the Legal Remembrancer in the firnt
instance.
They appeared before the Legal Remembrancer and objected to the scheme.
The scheme was
approved by the Legal Remembrancer but the order of
the Legal Remembrancer approving the scheme was
set aside by the High Court in certain petitions filed
bci.,rc it. It is admitted by the appellants that they
knew about the proceeding commenced in the High
Court challenging the validity of the sclwmc, and the
order passed by the High Court remanding it to the
Legal Remembrancer for hearing the objections. The
appellants, however, contend that thereafter they did
not receive any notice of the hearing pursuant to the
order of remand and thcv did not come to know of the
proceeding before the L'egal Remembrancer till the
scheme was
published
by
the
Government of
Rajasthan.
But the Legal Remembrancer was primarily the authority to be satisfied whether the
1962
Sobhraj Odharmal
v.
State of Rrij,1ithan
Shah, J.
1962
Sobhraj Odharmal
v.
Stale of Rajaslhtm
Shah, J.
108 SUPREME COURT REPORTS [19G3] SUPP.
objectors had adequate notice. There is nothing to
show that he even relied upon the presumption of
service· arising from the publication of the notice under
r. 7(4).
The Legal Remembrancer was appraised of
the fact that individual notice was received only by
thirteen individual objectors by registered post and he
had manifestly to consider whether the proceeding for
hearing the objections could be started. The Legal
Remembrancer had, when he commenced hearing,
the following matters before him, that all the objectors
were 4ware of the proceeding before the High Court
and the order passed therein, that he had directed individual notices under r. 7 cl. ( 3) and the same were duly
despatched, that a general notice was also published
in the Government Gazette, that the scheme was an
integrated scheme in respect of a route on which
stage carriages were being plied by the objectors, and
the objectors were vitally interested in plying and
continuing to ply their buses and the publication of
the scheme constituted a serious threat to their business.
It is also manifest that he had to deal with
operators of Motor Vehicles-a class of persons-who
in order to carry on efficiently their business have
constantly to acquaint themselves with the State
Government Gazette in which the rules framed under
the Act, the schemes, notices and the directions which
the Government issue for acquiring control over Road
Trans port are published as required by the Motor
Vehicles Act. There is no reference '.n the order sheet
dated June 19, 1961 to the presumption which arises
under r. 7( 4).
It appears that the Legal Remembrancer was of the opinion that those who had not
been personally served with individual notices sent by
registered post had still notice that the proceeding was
to ccommence on June 26, 1961.
The inference raised
by the Legal Remembrancer cannot be said to be
based on no evidence.
The High Court has also held
that the Legal Remembrancer was satisfied about
service of the notice on the objectors in accordance
with law, and that in proceeding to hear the objections
1 S.C.R. SUPREME COURT REPORTS
109
the Legal Remembrancer acted according to law. The
finding of the High Court that the objectors were duly
served with the notice was one of fact, and according
to the settled practice of this Court, no interference
with the conclusion of the High Court would be
called for. If the objectors were duly served and they
failed to appear to press their objections before the
Legal Remembrancer, they cannot seek to challenge the.
scheme after it is duly published arid which by the
statute is declared final.
That brings us to the question whether any fundamental right of the petitioner in the writ petition,
to carry on business was infringed by the State Transport Undertaking plying its vehicles without obtaining
permits under s. 42 (1). The scheme was by order
dated March 23, 1962, of the Legal Remembrancer
who was invested with authority to hear objections
thereto, duly approved. The scheme so approved by
the Legal Remembrancer was published in the Government Gazette, and thereby it was directed that
permit5 of 55 operators (amongst whom is the petitioner) on the route in question shall be cancelled, and
the Regional Transport Authority in exercise of the
powers conferred under s. 68F (2) and in pursuance of
the scheme ordered that those permits be cancelled.
Sub-section (1) and (2) of s. 68F deal with different matters; exercise of the powers under cl. (2) is
not dependent upon the grant of any permits to .the
State Transport Undertaking. By sub-s. (1) a statutory
duty is imposed upon the Regional Transport Authority to grant permits to the State Transport Undertaking, if application is made in that behalf pursuant
to an approved scheme. To such an application the
provisions contained in Ch. IV such as ss. 4 7, 48, 57
and allied sections will not apply. It was observed .
by this Court in Abdul Gajoor v. State of Mysore ('),
"In order that the approved scheme may be implemented the State Transport Undertaking which is to
run and operate the Transport Service under the
(1)
(1962] 1 S;C.R; 909.
1962
Sobhraj Odharmal
v.
State of Ra.fasthan
Shah, J.
1962
Sohhraj Odharmal
v.
State· of Raiasthan
Shah, J.
llO SUPREME COURT REPORTS [1963] SUPP.
scheme must have a permit from the Regional Transport Authority. Section 68-F (1) provides that the
State Transport Undertaking will have to apply for a
permit (i) in pursuance of the approved scheme and (ii)
in the manner specified in Chapter IV. Once that is
done, the sub-section proceeds to say "A Regional
Transport Authority shall issue such permit to the
State Transport Undertaking", and this "notwithstanding anything to the contrary contained in Chapter
IV". It appears clear to us that the provisions of s. 57
(3)-have nothing to do with these matters dealt with
bys. 68-F (1).
x
x
x
x
Under s. 68-F (1) as
already mentioned the Regional Transport Authority
has no option to refuse the grant of the permit provided
it has been made in pursuance of the approved scheme!
and in the manner mentioned in Chap. IV. The duty
of the Regional Transport Authority on receipt of the
application from the State Transport Undertaking for
a permit is therefore to examine the application for
itself to see whether it is in pursuance of an approved
scheme and secondly whether it has been made in the
manner laid down in Chapter IV. This is a duty
which the Regional Transport Authority has to perform for itself and there is no question of its asking for
assistance from the public or existing permit holders
for Transport Services on the route. Neither the public in general nor the permit holders has any part to
play in this matter."
Sub-section (2) authorises the Regional Transport Authority to take action or to make orders to
effectuate the scheme and to implement its directions.
In the
Samarth Transpart Co. (P) Ltd. v. The
RegiOWJ,l Transport Authority, Nagpur ('), dealing
with the conditions under which the power under
s.68-F(2)(a) may be exercised it was observed that
"this power does not depend upon the presentation of
an application by the State Transport Undertaking
for a permit.
This power is exercisable when it is
brought to the notice of the authority that there is an
(I)
[1961] I S.C.R. 631.
1 S.C.R. SUPREME COURT REPORTS
111
approved scheme, and to give effect to it, application
for renewal cannot be entertained."
In Kalyan Singh v. State of Uttar Prade8h (1),
it was held that an order passed by the Regional
Transport Authority under s.68-F(2) pursuant to a
direction under a scheme duly approved and published
is purely consequential upon the scheme, and is not
open to challenge. In considering the effect of cl.(:!)
of s.68F it was observed in that case
that "the
Regional Transport Authority was by the terms of
the scheme left no discretion in the matter. It was
by the scheme that the right of the appellant was
restricted and if the scheme became final and binding
the Regional Transport Authority had no authority
to permit the appellant to ply his vehicles". It was
further observed that "if the right of the appellant to
ply his
buses is lawfully extinguished he is not
entitled to maintain an appeal challenging the right
of the State Transport Undertaking to ply their buses
with or without permits. Kor 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". It was therefore held in that case that
if a valid scheme contains a direction for cancellation
of outstanding permits and the permits are in fact
cancelled by order of the Regional Transport Authority,
it is not open to the operator whose permits are cancelled
to claim that the State Authority which commenced to
operate its vehicles without obtaining permits under
s.42 of the Motor Vehicles Act infringes the right of
the operator to carry on his business. The right of
the operator having
been lawfully extinguished
pro tanto by the scheme and the consequential order
under s.68F(2), he is not entitled to have resort to this
Court under Art. 32 of the Constitution for protection of his alleged right.
The scheme was duly published and the permits
issued in favour of fifty-five operators whose names
(I) [1962] Supp. 2 S.C.It. 76.
1962
Sobhr«f Odharmal
v.
State of RaJasthan
Shah. J.
1962
Sobhraf Odharmal
v.
State of Rajasthan
Shah, J.
1962
September 21.
112 SUPRE,ME COURT REPORTS [1963] SUPP.
are set out in the order dated May 3/4, 1962 were
lawfully cancelled. The objectors had since cancellation of their permits no fundamental right which
could be infringed by the State Government plying its
vehicles with or without permits issued by the Regional
Transport Authority under s.42( 1) of the Motor
Vehicles Act.
The appeal and the writ petition therefore fail
and are dismissed with costs. There will be one
hearing· fee.
Appeal and writ petition dismissed.
THE GUJARAT UNIVERSITY, AHMEDABAD
v.
KRISHNA RANGANATH MUDHOLKAR
AND OTHERS
(B. P. SINHA c. ]., jAFER IMAM, K. SUBBA RAO,
K. N. WANCHOO, J. c. SH.AH AND
N. RAJAGOPALA AYYANGAR, lJ.)
University Education-F·ixation of exclusive ""'4ium of
mstruction-Legislative Competence of State Legislature-Constitution of India, Art. 254 (1),
Seventh Schedule, List I,
Entry 66, List II, Entry lr---Gujarat Univer8ity Act, 1949
(Bom. 56 of 1949) as amended by Act 4 of 1961, 88. 4, 18, 20,
22, 38A-Univer8ity Statutes, 207, 208 209.
The second respondent joined the First Year Arts Class
of the St. Xavier's College, affiliated to the Gujarat University,
where instruction was imparted through the medium of English
and after successfully completing that course sought admission
to the cla~ses preparing for the Intermediate Arts Examination of the University through the medium of English.
The
Principal of the college informed him that in view of the
provisions of the Gujarat University Act, 1949, and statutes 267,
208 and 209 framed by the Senate of the University, as amended
in J 961, . he could not be admitted without the "11\Clion of the
University The first respondent (father of the second respondent)