Bombay High Court
Shri Socorro N. Gracias & Others vs The State Of Goa & Others on 22 April, 1999
Equivalent citations: AIR1999BOM436B, 1999(3)BOMCR744, AIR 1999 BOMBAY 436, (1999) 3 BOM CR 744
Author: R.M.S. Khandeparkar
Bench: R.K. Batta, R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. Common questions of law arise in all the above petitions and, therefore, they are heard together and are being disposed of by this common judgment.
2. The petitioners seek to challenge the Notification No. 5/5/97-TPT dated 30th October 1998 published in Official Gazette dated 30th October 1998 in relation to a scheme for providing the road transport service on Panaji- Margao, Panaji- Vasco and Margao-Vasco routes by State Transport Undertaking.
3. The facts, in brief, relevant for the decision are that in exercise of powers conferred under various sections of the Motor Vehicles Act, 1988 (hereinafter called as "the said Act"), read with section 22 of the General Clauses Act, 1897, the Government of Goa by Notification No.5/5/90-TPT dated 19th February 1990, published Draft Rules called Goa Motor Vehicles Rules, 1989, (hereinafter called as "the Draft Rules"). The same were published in the Official Gazette dated 21st June 1990. After the objections and suggestions received from the public to the Draft Rules having been considered by the Government, the Government finalised the Rules and published the same under Notification No. 5/5/90-TPT dated 23rd October, 1991 and they were called as the Goa Motor Vehicles Rules, 1991 (hereinafter called as "the said Rules"). The said Rules were published in the Official Gazette dated 6th March 1992. The Draft Rules published by the respondent contained ten Chapters and did not include Chapter No. XI. However, the said Rules, which were published after considering the objections received from public, included the Chapter XI which comprised of sections 311 and 312 which deals with the form of a proposal of scheme in terms of section 99 of the said Act and the manner in dealing with the objections thereto and decision thereon in terms of section 100 of the said Act. On 23-9-1997 a scheme for nationalisation of Panaji-Margao-Panaji-Vasco and Margao-Vasco routes and vice-versa under section 99 of the said Act was prepared and forwarded by the Directorate of Transport and ex-officio Joint Secretary of the Government of Goa for the approval of the Government. The concerned Minister for Transport granted his approval to the proposed scheme on 26th September, 1997. The Cabinet decision for the implementation of the proposed scheme regarding nationalisation of the said three routes under section 99 of the said Act was taken in its 31st meeting held on 13th October, 1997. Necessary approval for the draft of the proposed scheme by the Minister as well as the Chief Minister was granted on 6th November 1997 and the Draft of the proposed scheme was published on 7-11-1997 under Notification No. 5/5/97/T.P.T. dated 7-11-1997 in the Official Gazette dated 7-11-1997. Similarly the Draft of the proposed Scheme was published in three different newspapers in three different languages. It was published in Konkani daily by name Sunaparant on 9-11-1997, it was published in English daily by name Navhind Times on 9-11-1997 and similarly in the Marathi daily by name Gomantak on 10-11-1997. An addendum was also issued incorporating additional names on 13-11-1997 on Official Gazette on 11-11-1997 as well as in Marathi daily Gomantak on 17-11-1997. Further addendum was also issued adding further names on 17-11-1997 and was published on Official Gazette of the same date and in the daily Gomantak on 25th November, 1997. The objections filed by the public were received during the months of November and December 1997. In order to examine those objections and to take appropriate decision in the matter, an order dated 24th July, 1998 was issued by the Minister for Transport, in pursuance of the Rule 17 of the Rules of Business of the Government of Goa, 1991 (hereinafter called as "the Business Rules") empowering Shri Kewal Sharma, Secretary of Transport, Government of Goa to hear and consider the objections for the purpose of modification and approval of proposed scheme which had already been cleared by the Cabinet after taking policy decision to take over the three routes. Shri Sharma heard and approved the scheme with modifications under order dated 21st October, 1998. In pursuance of the modified approved scheme, the same was published under Notification No. 5/5/97-T.P.T. dated 30th October, 1998 in the Official Gazette dated 30th October, 1998. The petitioners in Writ Petition No. 65/99 and Writ Petition No. 74/99 filed their representations dated 30th November, 1998 for re-consideration of the said scheme. The petitioner in Writ Petition No. 79/99 filed his representation for re-consideration of the scheme on 1-12-1998. All the petitioners were informed by letter dated 19-2-1999 by the director of transport that the scheme has been finalised after considering all the objections received from the concerned parties.
4. The first challenge is that the said scheme having been prepared on the basis of Chapter XI of the said Rules which are themselves void for want of pre-publication, for the same reason, the said scheme prepared under the said void Rules is also void. The contention of the petitioners is that the Draft Rules framed under the said Act which were published in Official Gazette dated 21st June, 1990 did not contain Chapter XI though the same appeared in the said Rules after having been finalised. Considering the provisions contained in section 212 of the said Act, it was mandatory for the Government to publish the Draft Rules including Chapter XI thereof before being finalised and in the absence of publication of Chapter XI thereof, the said Rules as far as the same relate to Chapter XI are bad in law. The Scheme being formulated in terms of Rule 311 which forms part of Chapter XI of the said Rules, the same is also ab initio void and bad in law. The contention is sought to be supported on the basis of the decisions of Rajasthan High Court in the matter of The Automobile Transport Rajasthan Ltd., Ajmer & others v. The State of Rajasthan & others, and Rajasthan Matsya Vyavasayee Sangh v. The State of Rajasthan & others, as well as of the Apex Court in the matter of The Municipal Corporation, Bhopal v. Mirbahul Hasan and others, . This contention is sought to be countered by the respondents on the ground that the scheme is actually formulated in terms of section 99 of the said Act and reference to Rule 311 of the said Rules is totally superfluous. Framing of Rules under section 107 of the said Act is not a pre-condition for formulation of the scheme under section 99 of the said Act and merely because the Rule 311 is bad in law that would not prohibit the Government from framing the scheme of the nature formulated under section 99 itself. Support is sought to be derived from the judgment of the Apex Court in the matter of Afzal Ullah v. State of U.P. & another, . In any case it is submitted by the respondents that it is too late for the petitioners to raise any dispute regarding the legality of the said Rules which were framed in 1992 and the said Rules being not objected for all these years, not even at the time of filing of objections to the said scheme before the Secretary of Government of Goa. There being no justification disclosed for delay in approaching the Court challenging the said Rules, the contention on the ground of voidability of the Rules should be rejected.
5. Undoubtedly, the Draft Rules which were published on 21st June 1990 did not contain Chapter XI of the said Rules. It is also a matter of record that Rule 311 forms part of Chapter XI of the said Rules. The Rules were finalised as long back as on 6th March, 1992. It is also to be noted that when the Draft Rules were published in June 1990 it was clearly made known in the Preamble of the said Draft Rules that the same were being framed in exercise of power conferred under sections 26, 28, 38, 65, 95, 96, 107, 111, 138, 159, 176 and 213 of the said Act. It is thus clear that the Preamble clearly disclosed that the said Rules were being framed in exercise of powers under various sections including section 107 of the said Act. The said section 107 deals with the power of the State Government to make Rules for the purpose of carrying into effect the provisions of Chapter VI of the said Act and the said Chapter includes sections 99 and 100. The section 107(2) of the said Act specifically provides that in particular and without prejudice to the generality of the power of the State Government to make rules for the purpose of carrying into effect the provisions of the said Chapter, such rules may provide for any of the matter which includes form in which the proposal regarding a scheme may be published in section 99, manner in which the objections can be filed or considered and disposed and the form in which the scheme can be approved under section 100 of the said Act. Thus, the intention of the Government to frame Rules under section 107 of the said Act was made clear by publishing the Draft Rules. It is a fact that the Chapter XI relating to the Rules concerning the matters under sections 99 and 100 not published along with the Draft Rules. Nevertheless when such Rules were published finally in March 1992, even thereafter the petitioners had never objected to the same. The contention of the petitioners is that there was no occasion for the petitioners to raise any objection regarding the said Rules till the said scheme was formulated. Undoubtedly, the Draft Scheme was published in November 1997. Nothing prevented the petitioners from challenging the said Rules at least in November 1997 or immediately thereafter. Certainly this would have given an opportunity to the respondents to take appropriate steps immediately thereafter to cure the defect, if any, in the said Rules before proceeding with the matter. Not only that, the petitioners did not react accordingly either in November 1997 or immediately thereafter but preferred to file objections in terms of the said Rules before the Secretary appointed to hear the objections to the said scheme. The petitioners took chance before the Secretary and having failed, have approached this Court in writ jurisdiction. No objection was raised before the Secretary about non-publication of Chapter XI of the said Rules.
6. That apart, as rightly submitted by the learned Advocate General, it cannot be said that the framing of Rules under section 107 is precondition for framing of any scheme in exercise of powers under section 99 of the said Act. This proposition has not been disputed by the learned Senior Counsel for the petitioners. Indeed section 99 of the said Act provides that where any State Government is of the 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 service in general or any 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 person or otherwise, the State Government may formulate a proposal regarding a scheme giving particulars of the nature of the services proposed to be covered and other relevant particulars respecting thereof and shall publish such proposal in the Official Gazette of the State formulating such proposal and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deems fit. In other words, section 99 deals with power to frame as well as the procedure to be followed in preparation and publication of the proposal regarding road transport service of a State Transport Undertaking.
7. Further, section 100 of the said Act provides that on publication of any proposal regarding a scheme in the Official Gazette and in not less than one newspaper in the regional language circulating in the area or route which is to be covered by such proposal, any person may within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Government. The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, if they so desire, approve or modify such proposal. The scheme relating to the proposal as approved or modified shall then be published in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become final on the date of its publication in Official Gazette and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or the notified route. It further provides that where the scheme is not published as approved scheme within one year from the date of publication of the proposal regarding the scheme in the Official Gazette, the proposal shall be deemed to have been lapsed.
8. It is thus clear that section 99 and section 100 make provisions for preparation and publication of the proposed scheme as well as for entertaining and disposal of the objections thereto and approval of the scheme. They also provide for the consequences of failure to take appropriate steps for publication and implementation of the scheme within specific time. In other words, as rightly submitted by the learned Advocate General, sections 99 and section 100 of the Act by themselves make complete provisions for preparation and finalisation of a scheme. No doubt, the Government is empowered to frame rules regarding the form and manner in which a scheme can be proposed and finalised. Nevertheless, section 100 also provides in brief regarding such matters. Being so, independently of the Rules framed under section 107, the Government is empowered to frame the scheme and finalise the same under sections 99 and section 100 of the said Act. Therefore, even if the rules framed under section 107 of the said Act may appear to be void for want of pre-publication, that itself would not render the scheme formulated in exercise of powers under sections 99 and section 100, to be void. Thus the scheme is required to be examined with reference to the provisions contained in Chapter VI of the said Act.
9. It is true that the scheme on the face of it refers to Rule 311 along with section 99 as a source of power for framing of the said scheme. The mere reference to Rule 311 cannot render the said Scheme to be void once it is clear that the power to frame such scheme is clearly independently referable to section 99 itself.
10. In Automobile Transport Rajasthan Ltd. (supra), the Draft Rules were published in the State Gazette on 9-12-1959 and finalised on 17-12-1959. The evidence on record disclosed that the Draft Rules were made available to the public only on 15th and 16th December 1959 and there was no sufficient time available to file objections, if any. Besides, some carriage permit holders had immediately sent telegram complaining about the insufficiency of time to file objections. The publication of Draft Rules being not an empty formality, it was necessary to publish the Draft Rules well in advance. In Rajasthan Matsya Vyavasayee (supra), it was a case where the Draft Rules were dated 20th September, 1990 and were actually published in Official Gazette only on 24th September 1990 and only seven days time was granted for filing objections. But the High Court held that there was no adequate or reasonable time granted for filing objections and therefore the Rules were held to be bad. There it was sought to be submitted that the Draft Rules were sent for publication on 11th September, 1990 and that should have been considered as a date for publication. The contention was rejected by the High Court. In Municipal Corporation, Bhopal (supra), the Apex Court was dealing with a matter regarding alteration of a Rule governing age of retirement of employees of Municipal Corporation without following the procedure prescribed under section 24 of the M.P. General Clauses Act, which provision is similar to that in section 23 of the General Clauses Act and therefore it was held to be invalid alteration. Provisions of section 24 of the said M.P. General Clauses Act were held to be mandatory and the procedure envisaged thereunder to be in consonance with the known canons of justice and fair play as it would enable the persons likely to be affected to be informed in advance so that they may take such steps as may be open to them to have wisdom of the proposed Rules debated and considered before the same become law. AH these judgments were given in the facts of those cases and are of no assistance to the petitioners in any manner. On the contrary, the Apex Court in Afzal Ullah (supra) has clearly held that if the power is otherwise established, the fact that the source of power has been incorrectly or inaccurately used in the formulation of the bye-laws would not make the said bye-laws invalid. Applying the same ratio to the case in hand, it cannot be said that mere reference to Rule 311 would render the scheme bad in law when the power to frame such scheme is available and actually exercised under the provisions of sections 99 and 100 of the said Act, even without taking shelter of Rule 311 of the said Rules.
11. Secondly, the challenge relates to the lack of authority to the Director of Transport or ex-officio Joint Secretary to modify and approve the scheme. The contention is that sections 99 and 100 provide that the preparation of the scheme and consideration and disposal of the objections, modification and approval of scheme, are all to be done by the State Government. There is no provision to delegate such power in favour of the Secretary of Transport. Even in terms of Business Rules, a Minister is not empowered by any special order to authorise the Secretary or the Joint Secretary to dispose of a particular case and that disposal of cases can be only by a Standing Order. Being so, order dated 24-7-1998 cannot be called a Standing Order and therefore the Secretary of Transport had no authority to entertain the objections and to modify and approve the scheme. It is further contention of the petitioners that in terms of Rule 9 appended to the Schedule to the Business Rules, the proposal involving the matter relating to change in policy from privatisation to nationalisation could not have been considered by a Secretary or even by any Minister but the same was required to be dealt with by the Council of Ministers. The challenge is sought to be countered by referring to Rule 17 of the Business Rules which empower a Minister to authorise any office to hear and decide any case and that the said Business Rules are framed in exercise of powers conferred under Article 166 of the Constitution. According to the respondents it is not a delegation of powers but it is a matter of allocation of business under the Business Rules and no fault can be found in the authorisation issued under order dated 24-7-1998. The contentions on behalf of the petitioners are sought to be supported by the decision of the Apex Court in the matter of Director General, E.S.I. and another v. T. Abdul Razak, . Reliance is sought to be placed on the judgment of M/s. Bijaya Laxmi Cotton Mills Ltd. v. State of W.B. and others, Capital Multipurpose Co-op. Society, Bhopal and others v. State of M.P. and others, ; Bhuri Nath and others v. State of J.K. and others, ; Chandrakant Sakharam Karkhanis and others v. State of Maharashtra and others, ; Murlidhar Xete v. State of A.P., and Dattatraya Moreshwar v. The State of Bombay and others, .
12. Undoubtedly, by operation of Article 154 of the Constitution of India, the executive power of the State vests in Governor and is exercisable by him either directly or through the Officers subordinate to him in accordance with the Constitution. By virtue of Article 162, subject to the provisions of the Constitution, the executive power of the State extends to all matters with respect to which the Legislature of the State has power to make the law. In other words, the executive power of the State is co-extensive with that of the legislative power of the State Legislature and the Governor in the constitutional sense discharges the function under the Constitution with the aid and advice of the Council of Ministers except insofar as the Governor by and under the Constitution is required to exercise his functions in his discretion.
13. In Shamsher Singh v. State of Punjab, , the Apex Court held thus :--
"In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Articles 77(3) and 166(3) respectively.
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Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister.
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The Governor makes rules under Article 166(3) for the more convenient transaction of business of the Government of the State.
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In every administration, decisions are taken by the civil servants. The Minister lays down the policies. The Council of Ministers settle the major policies. When a Civil Servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Ministry's department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister."
14. Referring to its earlier decision in Bejoy Lakshmi Cotton Mill's case , the Apex Court observed thus :--
"The Minister-in-charge had power to make standing order regarding disposal of cases. This Court held that the decision of any Minister or officer under Rules of business is a decision of the President or the Governor respectively. The Governor means, the Governor aided and advised by the Ministers. Neither Article 77(3) nor Article 166(3) provides for any delegation of power. Although the executive power of the State is vested in the Governor actually it is carried on by Ministers under Rules of Business made under Article 166(3). The allocation of business of the Government is the decision of the President or the Governor on the aid and advice of Ministers."
15. Earlier to the said decisions, the Apex Court in Gullapalli Nageswara Rao and others v. Andhra Pradesh State Road Transport Corporation and another, , had held thus :--
"A State Government means the Governor; the executive power of the State vests in the Governor; it is exercised by him directly or by officers subordinate to him in accordance with the provisions of the Constitution; the Ministers headed by the Chief Minister advise him in the exercise of his functions; The Governor made Rules enabling the Minister in charge of particular department to dispose of cases before him and also authorizing him, by means of standing orders, to give such directions as he thinks fit for the disposal of the cases in the department. Pursuant to the rule, the record discloses, the Chief Minister, who was in charge of Transport, had made an order directing the Secretary to Government, Home Department, to hear the objections filed against the scheme proposed by the State Transport Authority."
16. The Apex Court in the matter of Bhuri Nath & others v. State of J. & K. (supra) has clearly held that:
"The Constitutional mechanism, i.e. Cabinet system of Government is devised for convenient transaction of business of the executive power of the State. Though constitutionally the executive power of the State vests in Governor, he does not, unless the Constitution expressly conferred upon him personally takes decision. The decisions are taken according to the business rules at different levels and ultimately the decision rests with the authority specified in the Business Rules and is expressed to be taken in the name of the Governor, in substance and in reality, the decisions are taken by the Council of Ministers headed by the Chief Minister or the Minister or Secretary as per the business rules. But they are all expressed to be taken by the Council of Ministers in the name of Governor and authenticated by an authorised officer. The Governor being the constitutional head of the State, unless he is required to perform the function under the Constitution in his individual discretion, the performance of the executive power, which is coextensive with the legislative power, is with the aid and advice of the Council of the Ministers headed by the Chief Minister."
17. There is no doubt that sections 99 and 100 state that the scheme is to be formulated by the State Government and the objections are to be entertained by the State Government and modification and approval of the proposal is also to be done by the State Government. Section 3(60) of the General Clauses Act, 1897 clearly defines the "State Government" to mean the Governor. In terms of the Business Rules, the business of the Government in relation to the matters with respect to which the Council is required under Article 163 shall be transacted and disposed of in accordance with the provisions in Chapter III of the Business Rules. The Chapter III of the Business Rules deals with the matters pertaining to the disposal of business allotted amongst the Ministers. Rule 6(1) thereunder provides that the Council shall be collectively responsible for all executive orders issued from any Department in the name of the Governor or contracts made in exercise of the powers conferred on the Governor or any Officer subordinate to him in accordance with the said Business Rules, whether such orders or contracts are authorised by any individual Minister on a matter pertaining to the Department under his charge or as a result of discussion at a meeting of the Council or howsoever otherwise. Sub-rule (2) thereunder provides that without prejudice to the provisions of sub-rule (1) of Rule 6, the Minister in-charge of a Department shall be primarily responsible for the disposal of the business pertaining to that Department. Rule 9 provides that subject to the orders of the Chief Minister under Rule 10 all cases referred to in the Schedule shall be brought before the Council in accordance with the provisions contained in Chapter III; provided that no case in regard to which the concurrence of the Finance Department is required under Rule 7 shall, save in exceptional circumstances and under the directions of the Chief Minister, be disposed by the Council unless the Finance Minister has had opportunity of considering it. Rule 10 provides that all the cases referred to in the Schedule shall be submitted to the Chief Minister after consideration by the Minister in charge, with a view to obtaining his orders for circulation of the case under Rule 11 or for bringing it up for consideration at a meeting of the Council. Schedule to the said Business Rules in relation to the matters under Rules 9 and 10 includes various Items and Item No. 9 speaks of the proposals involving any important change in policy or practice. Rule 17 in Chapter HI of the Business Rules clearly provides that except as otherwise provided by and under those Rules, cases may be disposed of or under the authority of the Minister in charge may by means of standing orders, give such directions as he thinks fit for disposal of cases in the Department. Copies of such standing orders shall be sent to the Chief Minister and the Governor. Undisputedly, by order dated 24-7-1998 the Minister for Transport had authorised the Secretary of Transport of Government of Goa to hear and consider the objections for the purpose of modification and approval of the proposed scheme which had already been cleared by the Cabinet after taking policy decision to take over the three routes. The copy of the said order was sent to the Governor as well as to the Chief Minister.
18. The contention of the learned Advocate for the petitioners that the Business Rules do not provide authorisation by the Ministers to the Secretary to hear cases is devoid of substance in view of the provisions contained in Rule 17 of the said Business Rules. Merely because the expression used therein is "standing orders", that would not render the Order dated 24-7-1998 nugatory. The expression "standing orders" has not been defined in the Business Rules. Common Dictionary meaning of the expression "standing orders" is standard procedural instructions or standard rules of procedure. The same would also include the rules governing the manner in which all business shall be conducted in a Parliament, Council, society, etc. In other words, those are the orders under which allocation of business can be prescribed or carried out. Order dated 24-7-1998 clearly authorises Secretary or prescribes him to perform certain functions in relation to the said scheme under provisions of the said Act.
19. The contention of the learned Advocate for the petitioners that in terms of provisions contained in Rule 17 of the Business Rules it was not permissible for the Ministers to allocate the work of hearing objections and decide on the point of modification and approval of the scheme on the ground that the same pertains to change of policy is devoid of substance. The decision for modification and/or approval of the scheme had nothing to do with the change in policy. The policy was already formulated in terms of section 99 of the said Act itself. The records placed before us clearly disclose Cabinet decision approving the scheme of nationalisation of the routes in question. Authorisation by Order under Rule 17 to hear and decide is only regarding modification and approval of the said scheme after hearing the objections from the public. It rather relates to the implementation of the scheme prepared in accordance with the policy adopted by the Government under the provisions of the said Act. It can at the most be implementation of the policy already formulated. Being so, the provisions contained in Rule 9 of the Business Rules read with Schedule of the Business Rules are not at all attracted in the case in hand.
20. In Director General, E.S.I. and another v. T. Abdul Razak (supra), the Apex Court was dealing with a matter pertaining to resolution of a Standing Committee according approval to the Director General for delegation of powers. Rule 16(2) of the Employees State Insurance (Central) Rules, 1950, and the resolution to the extent they empowered to further delegate the powers or duties delegated to the Director General by the Corporation or the Standing Committee was held invalid since section 94-A of the Employees State Corporation Act, 1948 permits direct delegation by the Corporation to the different Officers and authorities subordinate to the Corporation and there is no scope to sub-delegate that power by authorisation to any other officer to exercise or perform powers so delegated. It is not the case in the matter in hand that the Ministers had delegated any of his powers to the Secretary. Rule 17 only speaks about the authorisation and not delegation of any power as such. In Capital Multipurpose Co-op. Society, Bhopal & others v. State of M.P. and others (supra), it was clearly held that the Secretary may act under the Rules of Business so long as under those rules he is appointed for the purpose of hearing objections.
21. The Full Bench of this Court in the matter of Chandrakant Sakharam Karkhanis v. State of Maharashtra (supra), has already held that the rules of Business are to be made by the Governor for regulating the conduct of the business of the State and are intended for more convenient transaction of business of the Government of the State and they are to be regarded as directory. Similarly the Division Bench of the Andhra Pradesh High Court in the matter of A. Muralidhar and others v. State of A.P. (supra) has clearly held that:--
"It is axiomatic that every statute or rules having statutory force ought to be brought to the notice of the people by publication as they are expected to obey the laws. The people who ought to obey the laws should be cognisant of them. Otherwise the maxim "ignorance of law is no excuse" is unmeaning. But the same cannot be pointed with regard to executive or administrative directions unless there is any obligation cast on the authorities concerned by any statute or rules made thereunder. Rules framed by Governor under Article 166 of the Constitution do not contemplate publication of the C.Os."
22. It is then sought to be contended on behalf of the petitioners that the order dated 24-7-1998 is bad for non-publication thereof. As already observed above, the Apex Court as well as various other High Courts have already held that it is not that each and every order is required to be published in Government Gazette. The order of authorisation is not a law which is necessarily to be known by the members of the public. In any case, the fact of authorisation in favour of Secretary (Transport) to hear and decide about the scheme was made known to the public through the publication to that effect in the newspapers. Being so, the contention of the petitioners is to be rejected as being devoid of substance.
23. It is next contended by the learned Advocate for the petitioners that the Director of Transport and ex-Officio Joint Secretary had not been empowered by law to authenticate the orders of the Government of Goa. In that regard the Advocate General has drawn our attention to the Notification No. 23/1/77-GAN.C. (i) dated 30th November 1997 whereby in exercise of powers conferred under Article 166 of the Constitution the Governor of Goa had framed the Authentication (Orders and other Instructions) Goa Rules, 1987 and in terms of Rule 2 thereof, the orders and other instructions made and executed in the name of the Governor are to be authenticated by Chief Secretary, a Special Secretary, the Additional Secretary, the Joint Secretary, Deputy Secretary or Under Secretary of any of the Departments of the Government or by Secretary to the Governor. The contention of the learned Advocate for the petitioners is that the ex-Officio Secretary cannot be considered as the Secretary within the meaning of Rule 2 of the said Authentication Rules. The expression "ex-Officio" has been defined in the Black's Law Dictionary to mean "from office; by virtue of office; without any other warrant or appointment than that resulting from the holding of a particular office. Powers must be exercised by a person which are not specifically conferred upon him but are necessarily implied in his office". In other words, the expression "ex-officio" means the powers are to be exercised by a person by virtue of the office he holds. Once it is not disputed that the Director of Transport holds the office of Joint Secretary (Transport), it is abundantly clear that he is empowered by the said Authentication Rules being Joint Secretary of Transport, to authenticate the orders made in the name of the Governor.
24. It is then sought to be submitted that the scheme is not in conformity with the provisions of Rule 311 and Form S.S.T.U. of the said Rules. It is also submitted that the scheme is not in public interest and does not show that its implementation will provide efficient, adequate, properly co-ordinated road service or that the Kadamba Transport Corporation is capable of carrying out the task imposed upon it. The submissions in this regard are totally devoid of substance. The Apex Court in the matter of Capital Multipurpose Coop. Society, Bhopal & others v. State of M.P. and others, had clearly held while considering the nature and scope of objections to the scheme which are to be considered that :--
"When the State Transport Undertaking takes action under Chapter IV-A of the Act there can, in our opinion, be no question of comparison between the State Transport Undertaking running an integrated service and individual operators running one transport vehicle or more on individual routes. We are, therefore, of opinion that the authority cannot be said to have gone wrong in not asking for past records of the Corporation in the present case for purposes of such comparison. It is true that section 68-C requires that the scheme should be in the public interest. But unless the scheme is shown not to be efficient, adequate, economical and properly co-ordinated, it will in our opinion generally follow that it is in the public interest" .
Further, in Smt. Saraswati Devi and others v. State of Uttar Pradesh and others, , the Apex Court has held that the objections of the type those challenging the scheme on the ground that it harms an existing operator are irrelevant to the determination of the validity of the scheme in view of postulates of section 68-C of the Motor Vehicle Act then in force and would, therefore, be inadmissible. It was also observed therein that comparison for the sole purpose of finding out whether the private operators should be given a preference over the State Trading Undertaking is not permissible. As already held above, the scheme is in consonance with the provisions contained in sections 99 and 100 of the said Act Once it is found that the scheme is perfectly valid in terms of sections99 and 100 of the Act, it is not necessary to find out whether the scheme is in consonance with the provisions contained in Rule 311. Suffice it to say that in compliance with the provisions of sections99 and 100 the scheme clearly discloses the information regarding its efficiency, adequacy and economical viability. It gives details about the trips of the buses and the routes on which the buses would ply as well as other information as required under section 99 of the said Act.
25. It is then contended that the order of the Transport Secretary does not disclose consideration of the petitioners' objections and to that extent it is a non-speaking order. Perusal of order of the Secretary discloses that the authority has not only considered the objections but has also applied its mind to the various decisions referred to by the learned Counsel appearing before him in the course of hearing of objections. The authority has considered the objections relating to displacement of private operators from the routes in question, ability of Kadamba Transport Corporation to handle transport on those routes as well as other objections raised by the petitioners. Being so, there is no substance in the contention of the learned Advocate about the non-consideration of objections by the authority while approving the scheme.
26. The respondents, on the other hand, tried to submit that the petitions suffer from laches and the delay has not been explained. The same is sought to be countered by the petitioners while submitting that there was no cause for the petitioners to approach prior to the filing of the petition. The records disclose that the proposed scheme was published in November 1997. After hearing the objections the finally approved scheme was published on 30th October 1998. It is true that the petitioners filed a representation on 1st December 1998 and they were informed on 19th February 1999 about the disposal of their representation. But the fact remains that the approved scheme published on 30th October 1998 clearly disclosed that its implementation would start from 1st March 1999, initially on Panaji-Margao road and thereafter on two other roads i.e. Panaji-Vasco and Margao-Vasco with effect from 1st April 1999. In other words, the scheme would come into force from 1st March insofar as it relates to Panaji- Margao route and from 1st April 1999 insofar as it relates to Panaji- Vasco and Margao -Vasco routes was made known to the petitioners as long back as on 30th October 1998. Equally it is true that there was some representation filed by the petitioners thereafter. Moreover, the filing of the representation did not prohibit the petitioners from approaching this Court to seek appropriate remedy and did not permit the petitioners to wait till the last moment. That apart, as rightly submitted by the learned Advocate for the respondents, the respondent No. 3 has already altered his position in pursuance of the approved scheme from November 1998 onwards. The respondent No. 3 has acquired new buses and has invested crores of rupees for the effective implementation of the scheme. In this regard the respondents are well justified in making grievance about the laches on part of the petitioners in approaching the Court. The contention of the learned Advocate for the petitioners that the Rule was issued in the petitions after hearing parties and therefore the respondents are not entitled to raise the point of laches is devoid of substance in the facts and circumstances of the case. In Writ Petition No. 65/99, admittedly, no interim relief was granted and the scheme as far as Panaji - Margao route has already been implemented from 1st March 1999. As regards the Writ Petitions Nos. 74/99 and 79/99 the Rule was issued only on 17th March 1999 and the respondents were directed not to give effect to the scheme till 22nd April 1999 with the specific order for peremptory hearing of the matter on 6th April 1999. In these circumstances, the respondents are well justified in making the grievance about the laches on the part of the petitioners in approaching the Court. Moreover, the petitioners can be duly compensated. The private interest must give way to the larger public interest.
27. For all the reasons stated above, we do not find any substance in the petitions and the same are therefore liable to be dismissed. Accordingly, the petitions are dismissed with costs. Interim relief stands vacated. Rule is discharged in each of the petitions.
28. Petitions dismissed.