KALYAN SINGH v. STATE OF U. P.
Citation: [1962] SUPP. 2 S.C.R. 76; 1961 INSC 343
Court: Supreme Court of India
Bench: BHUVNESHWAR PRASAD SINHA , K. SUBBA RAO, J.C. SHAH, RAGHUBAR DAYAL, J.R. MUDHOLKAR
Judgment date:
Case summary
1961 INSC 343. Supreme Court of India judgment dated 1961-12-11. KALYAN SINGH v. STATE OF U. P. Read the judgment and case details on LawSphereX.
Judgment 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 11 of permit -11'/aether can b 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 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 ,• S! Wi J, pnctically raise the same points and may be 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 Kanpur- Bela-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 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, a. Division Bench of the High Court, accepting contentiona raised by the respondents, dismiss· ed the petition. Hence the appeal. 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 com-manding 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. 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 stion arises only in the appPal; (4) Tht> Regional· Transport Authority had not applied its mind in dealing with the renewal appliration but mechani-i:ally followed the provisions in the proposed S 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 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 counter-affidavit 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 present-ly 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 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) ~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 postu-lates 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 speci-fied, 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 the-terms of the scheme left no discretion in the mat-t. 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 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 justi-fication 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. 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. WA. 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
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