Rajasthan High Court - Jaipur
Ganesh Mal Surana And Ors. vs State Of Rajasthan And Ors. on 27 May, 1996
Equivalent citations: AIR1996RAJ222, 1996(3)WLC34, 1996(1)WLN494
JUDGMENT B.R. Arora, J.
1. These three appeals raise a common question of law in the identical facts and arise out of the common judgment dated 20-4-1992 passed by the learned single Judge, by which the learned single Judge dismissed the writ petitions filed by the petitioner-appellants and, therefore, they are being disposed of by this common judgment. For the convenient disposal of these appeals, the facts given in D. B. Civil Special Appeal No. 245 of 1992 (Mool Chand Mandot v. State of Rajasthan and others arising out of S. B. Civil Writ Petition No. 2186 of 1986) are taken into consideration.
2. Appellant Mool Chand Mandot was an existing operator on Deogarh to Badnore via Bhim-Todgarh route having non-temporary stage carriage permit in his favour. This permit of the appellant-petitioner for the route was renewed before the approval of the Scheme of Deogarh-Badnore route. A Draft Scheme under Section 68C of the Motor Vehicles Act (for short, 'the Act') came to be published on 13-4-1979 in the Rajasthan Rajpatra for the following routes:-
(i) Bhim Deograh via Tal Lasani;
(ii) Deogarh Bhim via Bagad, Tadgarh Pawatia;
(iii) Bhim Tadgarh via Pawatia; and
(iv) Bhim Badnore via Ajitgarh - Lalgarh Pichola.
As the petitioner-appellants' routes were affected by this Draft Scheme, therefore, they filed objections to these Schemes. The Special Secretary (Home), Rajasthan, Jaipur considered the objections raised by various operators and by his order dated 29-6-1985 refused to give approval to the Scheme Bhim-Deogarh via Tal Lasani but approved the Scheme relating to three routes, namely, (i) Deogarh-Bhim via Baggad; (ii) Bhim-Todgarh via Pawatia, and (iii) Bhim Badnore via Ajitgarh etc. The appellants, aggrieved with the approval of the Scheme on these three routes by the Special Secretary (Home) on 29-6-1985 filed writ petitions for quashing and setting aside the Draft Scheme and the approval dated 29-6-1985 and further prayed that the respondents may be restrained from notifying the aforesaid Scheme for the aforesaid routes.
3. The writ petition came up for admission on 1-10-1986. The Court, on that day, issued notices to the respondents to show cause why the writ petition may not be admitted. The service on all the respondents were affected and after service on the respondents, the case was listed for admission on 6-1-1987. Nobody appeared on behalf of the Rajasthan State Road Transport Corporation but Shri B. R. Mehta, Deputy Government Advocate, appeared on behalf of the respondents Nos. 1, 2 and 4. After hearing the learned counsel for the parties, the writ petition filed by the petitioner-appellant was admitted and on the stay petition, the following order was passed.
"...... Meanwhile, the non-petitioners Nos. 1, 2 and 4 are restrained from taking further proceedings under Section 68D read with Section 68F (1) of the Motor Vehicles Act pending before the non-petitioner No. 1 State of Rajasthan pursuant to the impugned order of the Special Secretary (Home) passed on 29-6-1985 approving the Draft Scheme vide Notification No. F(4) Plan (Jaipur) RSRTC (Yatayat)/154, dated 13-3-1979 published in the Rajasthan Rajpatra dated 13-4-1979."
Though the stay order was passed by the High Court on 6-1-1987 after giving notices to the respondents and in the presence of Dy. G. A. but still the State Government published the Scheme on 28-7-1987 in the Rajasthan Gazette. Aggrieved with the publication of the Scheme, the petitioner-appellants filed three more writ petitions challenging the above-noted approved Scheme. In these writ petitions, on (23)-9-1987 the following ad interim order was passed :-
"Issue notice of the stay petition to the non-petitioners returnable within three weeks.
Meanwhile the operation of the impugned Notification No. P. 17(5) Home-7/79, dated 10-7-1987 published in the Rajasthan Rajpatra, dated 28-7-1987 notifying the route Bheem Deogarh via 40 Miles, Tal Lasani, Deogra Bhim via Bagad Todgarh, Pawatia, Bhim Badnore via Ajitgrah, Lalpura, Pichola shall remain stayed."
The respondent Nos. 1, 2 and 4 did not file any reply to the writ petition while the R.S. R.T.C. filed its reply and the learned single Judge, by his judgment dated 20-4-1992 dismissed the writ petitions filed by the petitioner-appellants. It is against this judgment that the appellants have filed the present appeals.
4. It is contended by the learned counsel for the appellants that (i) there was an inordinate delay of seven years in the finalisation of the Draft Scheme and the Scheme, therefore, should have been quashed; and (ii) though there was a stay order passed by this Court on 6-1-1987, still the Scheme was published in the Rajasthan Gazette. The publication of the Scheme is, therefore, a nullity and the learned single Judge was not justified in dismissing the writ petitions. Learned counsel for the respondent R.S.R.T.C., on the other hand, has supported the judgment passed by the learned single Judge.
5. We have considered the submissions made by the learned counsel for the parties.
6. The first question which requires considerations is: whether the delay of seven years in the publication of the Scheme will automatically render the Scheme illegal ?
7. Similar controversy came up for consideration before the Supreme Court in Yogeshwar Jaiswal v. State Transport Appellate Tribunal, AIR 1985 SC 516. In the case of Yogeshwar Jaiswal the Draft Scheme under Section 68C of the Act was published in the Uttar Pradesh Gazette on November 27, 1971. Objections were invited but the Scheme could not be finalised or approved for about fourteen years and, therefore, a writ petition was filed for quashing and setting aside the Scheme on the ground of delay. The Supreme Court, after considering the law on the point held as under (at p. 519 of AIR) :-
"The State Government is required by law to pass its order under Section 68D as early as possible. Delay in performance of statutory duties amounts to an abuse of process of law and has to be remedied by the Court particularly when the public interest suffers thereby. Hence if there is an unreasonably long and unexplained delay in the State Government passing orders under Section 68-D, the Court may issue a mandamus to the State Government to dispose of the case under Section 68-D within a specified time or may in an appropriate case even issue a writ in the nature of certiorari quashing the Scheme and a writ in the nature of prohibition directing the State Govenment not to proceed with the consideration of the Scheme published under Section 68C because Section 68-D does not confer an unfettered discretion on the State Government to deal with the case as it likes. The power under Section 68-D has to be exercised having due regard to the publice interest."
The Apex Court, therefore, directed the State Government in that case that in order to bring an end to the proceedings under Section 68-D of the Act expeditiously to pass an order under Section 68-D (2) of the Act approving the Scheme with or without any modification or rejecting it or to pass any other order thereon which it may pass under that provision on or before July 31, 1985. (Date of judgment is 31-1-1985) and publish the same on or before August 31, 1985. The Supreme Court, in that case, therefore, did not quash the proceedings even after the lamentable delay of fourteen years.
8. In Onkar Singh v. Regional Transport Authority, Agra, AIR 1986 SC 1719, the Draft Scheme under Section 68-C of the Act was published on June 25, 1960 which was not approved by the State even though twenty-five years elapsed. The Supreme Court, therefore, quashed the Scheme by holding that "it could never have been in the contemplation of Parliament that the period for approving a scheme with for without modification or for rejecting it could be twenty-five years as in this case." The Apex Court, also, held in this case that "Sub-section (3) of Section 68-D indicates the legislative intention regarding the maximum period that may be spent on the proceedings which intervene between the date of publication of the draft scheme under Section 68-C and the publication of the approved or modified scheme under Section 68-D(3). It suggests that it cannot be longer than three to five years which is usually the period during which a permit can be in force without renewal as provided in Section 58."
9. In the case of Ashok Kumar v. State of Rajasthan (Writ Petition (Civil) No. 1322 of 1986) decides on March 3, 1987 and Shyam Lal v. State of Rajasthan (Writ Petition (Civil) No. 1537 of 1986) decided on 3-3-1987, there was a delay of about ten years between the publication of the Draft Scheme and its approval. The Apex Court, therefore, quashed the Draft Scheme and issued a writ to the authority hearing the matter under Section 68D of the Act not to proceed with the hearing.
10. In Krishan Kumar v. State of Raja-shthan (AIR 1992 SC 1789) the Draft Scheme under Section 68C was published on 11-10-1979. The Scheme was approved and final Scheme was not published by the time the Motor Vehicles Act, 1988 came into force. The Scheme relating to Nationalisation of the routes remained pending on the date of commencement of the new Act. The Supreme Court, after considering the various judgments of the Supreme Court including the judgment reported in AIR 1986 SC 1719 (Onkar Singh's case) held in para 5 of the judgment that:-
"Moreover this Court has not ruled in the aforesaid decisions, or in any other decision that delay would automatically render the scheme illegal. Since under the old Act no time frame was prescribed for finalising a scheme penal consequences could not ensue. Under the old Act a Scheme proposed under Section 68 could continue to remain in force till it was quashed. Since the scheme proposed on 11-10-1979 had not been quashed by any Court, the same continued to be in force on the date of commencement of the new Act. In the absence of any provision in the old Act rendering the scheme ineffective on the ground of delay, the scheme proposed under Section 68-C of the old Act could not lapse ipso facto. Moreover, now the State Government has already issued final Notification under Section 100(3) of the new Act on 29-8-1990, as a result of which the route has been notified."
11. Similar controversy came up for consideration before the Division Bench of this Court in Dali Chand and another v. Regional Transport Authority and another (D. B. Civil Special Appeal No. 101 of 1986 - decided on 27-9-1987) and the Division Bench of this Court in that case held that "although there has been some undue delay between the publication of the Draft Scheme and the notification of the approved Scheme, the schemes are not liable to be struck down only on the ground of delay in approval of the scheme after the publication of the draft scheme."
12. The position of law discernable from the above judgments of the Supreme Court and the Division Bench of this Court, therefore, is that the delay will not automatically render the Scheme illegal. There is no provision under the Old Act which could render the Scheme ineffective on the ground of delay and till the Scheme is quashed, it will remain in force. On account of inordinate delay of seven years or more, the Scheme will not lapse, though the authorities are expected to expedite the matter and complete the proceedings expeditiously. The object and the purpose of the Act is to avoid delay in finalising the Scheme, but in the absence of any provision in the Old Act the Scheme automatically cannot come to an end on account of inordinate delay. Under the new Act, Section 100 has been enacted and a period of one year has been prescribed for finalising the Scheme from the date of publication of the proposed Scheme but there was no such provision under the old Act and as such the Scheme cannot be quashed on account of delay.
13. In this view of the matter, we are of the opinion that the learned single Judge was justified in holding that the delay in finalisation of the Scheme itself is not fatal. The contention raised by the learned counsel for the appellants that the delay in finalisation of the Scheme entails the dismissal, is bereft of any substance.
14. The next question which requires consideration is regarding the effect of the stay order dated 6-1-1987 passed by this Court on the publishing or notifying the Scheme on 28-7-1987 ? The learned single Judge repelled the argument of the counsel for the petitioners on the ground that "the order does not appear to have been communicated to the person against whom it is injucted that they will not finalise the Scheme and the same has been issued in derogation then that order cannot be said to be operative against the party who had no knowledge whatsoever."
15. It is not in dispute that initially no stay order was passed on 1-10-1986 when the notices were issued to the respondents to show cause why the writ petition may not be admitted and only the notices of the stay application were issued. It was only after service of the notices on respondents and in. the presence of Mr. B. R. Mehta, Deputy Government Advocate (counsel for repondents Nos. 1, 2 and 4) that the stay order was passed by the High Court on 6-1-1987 restraining the respondents Nos. 1, 2 and 4 from taking any further proceedings under Section 68-D read with Section 68F(1) of the Act pending before the non-petitioner No. 1 State of Rajasthan pursuant to the impugned order of the Special Secretary (Home) passed on 29-6-1985 approving the draft scheme vide order dated 13-3-1979. The stay order passed by this Court was a prohibitory order restraining the respondents Nos. 1, 2 and 4 and forbidding them from taking any steps under Section 68-D read with Section 68-F(1) of the Act. It was passed in the presence of the learned counsel for the respondents Nos. 1, 2 and 4.
16. Any order passed in the open Court restraining the parties to proceed with the matter and forbidding them from taking any step, must be presumed to have been communicated to the parties affected thereby because it has been passed in the presence of their counsel and the party cannot disobey the order by way of publishing/notifying the Scheme and taking an excuse that the order passed by the Court was not communicated to them by their counsel. Though in the cases of prohibitory or restraining orders the knowledge to the authority which is prohibited, is essential before the authority is deprived of the power to carry on the proceedings but when the order has been passed in the presence of their counsel then that will amount to have been passed in the presence of the parties and within its knowledge and, therefore, from the date the stay order was passed, the respondents Nos. 1, 4 and 2 were bound to obey it and as the order has not been obeyed by the respondents, the respondents' act was illegal in publishing the Scheme and, therefore, all the proceedings taken after 6-1-1987 relating to the publication of the Scheme would become nullity and deserves to tbe quashed and set aside. The learned single Judge was not justified in holding that the order was not communicated by Shri B. R. Mehta to the authorities and as such they had no knowledge of the order. No reply has been filed on behalf of the State or the respondent No. 2 or respondent.No. 4 that the order was not communicated to them and the Scheme was notified without any knowledge of the stay order passed by this Court. The reply has been filed only by the R.S.R.T.C. which had no personal knowledge so far as the communication of the order to the respondents is concerned. But even otherwise, when the order has been passed by the High Court in the presence of the counsel for the respondent then it means that the order has been passed in the presence of the parties themselves and the parties had the knowledge of the stay order. The Scheme notified by the State Government in the presence of the prohibitory order dated 6-1-1987, therefore, deserves to be quashed and set aside. The judgment/order passed by the learned single Judge, therefore, deserves to be quashed and set aside.
17. In the result, the appeals filed by the appellant-petitioners as well as the writ petitions filed by them, are, therefore, allowed and the aforesaid four Schemes which were published/notified on 28-7-1987 are quashed and set aside. It will, now, be open to the authorities, if they so desire, to publish a fresh Scheme. We permit the Corporation which is, at present, operating stage carriages on the routes in question, to operate on these routes for a period of one year, i.e., up to May 26, 1997 or till the fresh Draft/Scheme is published and finalished, whichever is earlier.