Andhra HC (Pre-Telangana)
Government Of A. P., Rep. By Its ... vs P. Narsimloo And Ors. on 4 December, 1990
Equivalent citations: 1991(1)ALT370
JUDGMENT Sardar Ali Khan, J.
1. This batch of Writ Appeals have come up for admission after notice was ordered before admission. The matter has been heard at length on both sides at the admission stage itself.
2. The Writ Appeals arise out of a common judgment of a learned single Judge allowing the Writ Petitions with a direction that the State Government shall publish the schemes in accordance with the rules and invite objections from any person within thirty days from the date of publication in the newspapers and thereafter dispose of the objections within two months from the date of expiry of the thirty days' period.
3. It may not be out of place to indicate the area of controversy arising in the Writ Petitions which has lead to the filing of the batch of cases which are now under consideration. The essential facts are briefly as follows:
As many as 250 draft schemes have been published by the Andhra Pradesh State Road Transport Corporation, appellant No. 2 herein, under Section 68-C of the Motor Vehicles Act, 1939 (Act 4 of 1939) in State Gazette dated 12-4-1989, 15-4-1989, 18-4-1989, 20-4-1989, 22-4-1989 and 26-4-1989 proposing to operate the routes mentioned therein to the exclusion of all others except certain specified categories. The writ petitioners, who are affected by some of the published draft schemes, filed their objections before the State Government, which have been heard by the State Government but no decision was taken. In the interregnum the Motor Vehicles Act, 1988 (Act No. 59 of 1988), hereinafter referred to as "the Act of 1988", repealing the Motor Vehicles Act, 1939 (Act 4 of 1939), hereinafter referred to as "the Act of 1939", which has come into force on 1-7-1989 in the State of Andhra Pradesh.
4. In the above back ground of facts, certain statutory provisions of the old and new Acts will have to be considered to arrive at a conclusion in this batch of Writ Appeals.
5. Section 68-C of the Act of 1939 is in the following terms :
"68-C Preparation and publication of scheme of Road Transport service of a State Transport Undertaking :-Where any State Transport Undertaking is of opinion that for the purposes of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operating by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State Transport Undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the official Gazette, and also in such other manner as the State Government may direct."
It is necessary to re-produce hereunder the provisions of Section 68-D of (the Act of 1939 as well which have a direct bearing on the matter. Section 68-D of the Act of 1939 is as follows :
68. D. Objection to the Scheme :
(1) On the publication of any scheme in the Official Gazette, and in not less than one newspaper in regional language circulating in the area or route which is proposed to be covered by such scheme :-
(i) any person already providing transport facilities by any means along or near the area or route proposed to be covered by the scheme;
(ii) any association representing persons interested in the provision of road transport facilities recognised in this behalf by the Slate Government; and
(iii) any local authority or police authority within whose jurisdiction any part of the area or route proposed to be covered by the scheme lies; may, within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Government.
(2) 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 the scheme.
(3) The scheme as approved or modified under Sub-section (2) shall then be published in the Official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called notified area or notified route :
Provided that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has been published in the Official Gazette, with the previous approval of the Central Government."
6. A leading of the above provisions clearly reveals the fact that under Section 68-C of the Act of 1939 the State Transport Undertaking may, for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, prepare a scheme giving particulars of the nature of the services proposed to be rendered with other relevant details like the route etc., and shall cause every such scheme to be published in the Official Gazette. Section 68-D deals with the question of objections to the scheme and provides, inter alia, that on the publication of any scheme in the Official Gazette and in not less than one newspaper in regional language, the category of persons mentioned in Clauses (i), (ii) and (iii) of Sub-section (V) thereof, 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 is empowered, after giving an opportunity to the objector, to approve or modify the scheme, as the case may be. The fundamental point of considerable importance emerging from the provisions of Section 68-D of the Act of 1939 is that only the three categories of persons who have been enumerated in Section 68-D, are competent to raise objections to a scheme which has been published in the Official Gazette. Apart from the above three categories of persons, no other person can raise any objections to the scheme as such.
7. It is not in dispute that all the 250 schemes have been published in the Official Gazette under Section 68-C of the Act of 1939. In some cases objections have been received in accordance with Section 68-D which have been considered by the State Government. But, it is beyond any dispute that the State Government has neither approved nor modified the schemes uptil now and no publication to that effect has been made by The State Government.
8. While the matters were resting at that stage, the Act of 1988 has come into force with effect from 1-7-1989. The relevant provisions of the Act of 1988, which call for consideration in this batch of writ appeals, are Sections 99, 100 and 217. Under Section 99 of the said Act of 1988 preparation and publication of proposal regarding road transport service of a State Transport Undertaking are to be made by the State Government and published in the Official Gazette 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. It is significant to note that under Section 99 of the Act of 1988 it is the State Government which has to formulate a proposal regarding a scheme giving the relevant particulars where as under Section 68-C of the Act of 1939 the State Transport Undertaking is authorised to formulate and publish the scheme in the Official Gazette. More over, Section 100 of the Act of 1988 is the crucial section which deals with the question of objections to the proposal. In view of the prime importance of Section 100 of the Act of 1988 for the purpose of this batch of writ appeals we reproduce the same as hereunder :
"100. Objection to the proposal :-
(1) On the 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 Slate Government.
(2) 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.
(3) The Scheme relating to the proposal as approved or modified under Sub-section (2) 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 the 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 notified route:
Provided that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government."
(4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under Sub-section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under Sub-section (1), the proposal shall be deemed to have lapsed."
9. A fair reading of Section 100 shows that the primary object of the enactment of Section 100 is to provide an opportunity to any person to file his objections within 30 days from the date of the publication of the scheme in the Official Gazette, before the State Government. It is obvious that under Sub-section (1) of Section 100 any person can file objections whereas under Section 68-D of the old Act of 1939 filing of objections is restricted to the three categories which have been mentioned therein. Under Sub-section (2) of Section 100 of the Act of 1988 the State Government is required to consider the objections and, after giving an opportunity to the objector, approve or modify the proposals published in the Official Gazette. Sub-section (3) of Section 100 requires publication of the proposal as approved or modified under Sub-section (2) 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 concerned. Under Sub-section (4) it is provided that if a scheme is not published as an approved scheme under Sub-section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette it shall be deemed to have lapsed. The point of considerable importance which needs to be high-lighted is that the whole scheme of Section 100 of the new Act of 1988 revolves around the filing of objections by "any person" to the scheme which is published in the Official Gazette and it provides the manner in which such objections, if any, filed by any person are to be considered by the State Government.
10. The next section to be considered, in the scheme of provisions we are discussing in this judgment, is Section 217 of the Act of 1988. It may not be necessary to re-produce the entire Section 217 which deals with repeal and savings except the portions which are relevant for the purpose of this batch of Writ Appeals. Relevant portions of Section 217 are as follows :-
"217. Repeal and Savings :-(1) The Motor Vehicles Act, 1939 and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this section referred to as the repealed enactments) are hereby repealed.
(2) Notwithstanding the repeal by Sub-section (1) of the repealed enactments,-
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(e) any scheme made under Section 68-C of the Motor Vehicles Act, 1939 or under the corresponding law, if any, in force in any State and pending immediately before the commencement of this Act shall be disposed of in accordance with the provisions of Section 100 of this Act;
(f) the permits issued under Sub-section (1-A) of Section 68-F of the Motor Vehicles Act, 1939, or under the corresponding provision, if any, in force in any State immediately before the commencement of this Act shall continue to remain in force until the approved scheme under Chapter VI of this Act is published."
Thus, it is evident that Section 217 of the Act of 1988 provides for the repeal of the Motor Vehicles Act of 1939 which was in force immediately before the commencement of the Act of 1988. It may also be mentioned that under Section 217 (2) (a) any notification, rule, regulation, order or notice etc., issued earlier and if it is not inconsistent with the provisions of the Act of 1988, is deemed to have been issued, made, granted, done or taken under the corresponding provision of the Act of 1988. Now, coming to the provisions of Section 217 (e), we feel it necessary to analyse its components. It is clear from a reading of Section 217 (2) (e) that any scheme made under Section 68-C of the Motor Vehicles Act, 1939 and pending immediately before the commencement of this Act shall be disposed of in accordance with the provisions of Section 100 of the Act of 1988. In a way, Clause (e) of Sub-section (2) of Section 217 constitutes an exception to the provisions of Sub-section (1) of Section 217 because it saves any scheme which has been made under the Act of 1939 under Section 68-C and provides for its disposal in accordance with the provisions of Section 100 of the Act of 1988. Under Section 68-C of the Act of 1939 all the schemes are to be published in the Official Gazette by the State Government. There is no denying of the fact that the schemes in question have been published in Official Gazette as required under Section 68-C of the Act of 1939. Therefore, what is actually saved by Clause (e) of Sub-section (2) of Section 217 of the Act of 1988 is the scheme which has been made under Section 68-C of the Act of 1939 and which is pending. Beyond that there is nothing which is saved by Section 217 of the Act of 1988. So much so, it is provided that such scheme made under Section 68-C and saved by the provisions of Clause (e) of Sub-section (2) of Section 217 of the Act of 1988 shall be disposed of in accordance with the provisions of Section 100. We have already stated that the primary object of Section 100 is to afford an opportunity to any person who may feel aggrieved by any draft scheme published in the Official Gazette. The area of objectors has been considerably widened under Section 100 of the Act of 1988 as compared to Section 68-D of the Act of 1939. Under the provisions of Section 217 (2) (e) such scheme which is proposed shall be disposed of in accordance with the provisions of Section 100. It is equally true that such scheme, i.e., a scheme which has been published under Section 68-C of the Act of 1939 need not be published again because it is saved as it exists by the provisions of Section 217 (2) (e) of the Act of 1988, but thereafter it will have to be disposed of in accordance with the provisions of Section 100. This, in effect, means that any person will have the right to raise an objection within 30 days from the date of publication of the scheme in the Official Gazette and file objections to it before the State Government. In this batch of cases the schemes were published under Section 68-C and in the meanwhile the transition has taken place from the Act of 1939 to the Act of 1988. Therefore, in a way the problem arising in this batch of cases is of a transitory nature in the sense it has come about due to the switch over of the scheme from the provisions of the Act of 1939 to the provisions of the Act of 1988.
11. The main contention raised before the learned single 'Judge and indeed in this batch of writ appeals on behalf of the respondents herein, who are petitioners in the writ petitions, is that the scheme will have to be published and disposed of under Section 100 of the Act of 1988, giving an opportunity to any person to raise objections. The learned single Judge, after an elaborate discussion and a comparative analysis of the relevant provisions of the Act of 1939 and the Act of 1988, ultimately allowed the writ petitions with a direction that within two weeks from the date of that judgment the State Government shall publish in two local newspapers, one English and one Telugu, giving reference to the schemes already published and invite objections from any person within thirty days from the date of publication in the newspapers and shall dispose them of within two months from the date of expiry of the thirty days' period. It was further held by the learned single Judge that the petitioners are also entitled to file further objections, if any, and the matter shall be disposed of afresh. We are unable to find any flaw in the approach of the learned single Judge in so far as the direction to comply with Section 100 of the Act of 1988 is concerned. It is evident that an opportunity must be given to any person who may be an objector to file his objections in accordance with Section 100. Otherwise, the main purpose of this Section 100 would be defeated. We have also indicated that since the scheme made under Section 68-C of the Act of 1939 is saved by Section 217 (2) (e) of the Act of 1988, there is no need to make yet another publication of the schemes as such. It may also be kept in view that what if saved is only the schemes made under Section 68-C. In so far as the question of filing of objections under Section 68-D is concerned, they are not saved by the provisions of Section 217 (2) (e). Therefore, the filing of objections, if any, in pursuance of the publication of the scheme under Section 68 (c) (1) of the Act of 1939 by the three categories enumerated in Section 68-D (1) is really of no consequence. The reason is that under Section 100 of the Act of 1988 now the area of objectors has been considerably widened who have to be given an opportunity to raise their objections to the schemes. We, therefore, find ourselves in complete agreement with the reasoning of the learned single Judge in so far as the direction to comply with Section 100 is concerned.
12. During the course of the hearing of this batch of writ appeals, it has transpired that the State Government has published a NOTICE dated 26-11-1990, bearing Memorandum No. 636/Tr. 1V/90, which has been published in the Deccan Chronicle dated November 30, 1990. In this notice dated 26-11-1990, published in the Deccan Chronicle, the respective writ petition numbers have been referred to and in the table given therein the particulars with regard to the schemes already published in the Andhra Pradesh Gazette have been furnished. Thereafter it is stated in the notice that any person desirous of filing objections to the said schemes may do so as laid down in Section 100 (1) of the Motor Vehicles Act, 1988 within thirty days of the publication, of the said notice in the newspapers. In our opinion, the said notice published in the Deccan Chronicle dated November 30, 1990, is in full compliance with the directions given by the learned single Judge and fulfills the requirements of Section 100 of the Act of 1988. It provides an opportunity to any person who is desirous of filing objections to the said schemes, to do so within thirty days of the publication of the notice in the newspaper. Therefore, the prime objective of Section 100 of the Act of 1988 has been achieved by the notice, referred to above. As a matter of fact, with the publication of the said notice, perhaps, it is not strictly necessary to go into the merits of the rival contentions raised by the parties but since the questions involved in the writ appeals are of considerable importance, we thought it fit and proper to express our opinion on the relevant provisions of the Act of 1939 and the Act of 1988. We are, therefore, inclined to uphold the judgment of the learned single Judge on the question of interpretation of Section 100 and the consequent direction given by him.
13. At the fag end of the arguments advanced on the merits of the cases. Sri D. Reddapa Reddy, learned counsel appearing for the appellants, has submitted that in case it is held that objections are to be entertained under Section 100 of the Act 1988 as specified in the notice dated 26-11-1990, a direction may be given to maintain status quo obtaining as on to-day with regard to the schemes covered by the specific number of writ petitions which have been included in this batch. Even otherwise, Clause (f) of Sub-section (2) of Section 217 of the Act of 1988 fulfills the same purpose by providing that the permits issued under Sub-section (1-A) of Section 68-F of the Motor Vehicles Act, 1939, shall continue to remain in force until the approved scheme under Chapter VI of the new Act of 1988 is published. However, for the sake of clarity we hereby direct that status quo obtaining as on today shall be maintained in regard to the number of permits granted to the writ Petitioners and the permits granted to APSRTC under Section 68-F 1-A of the Act of 1939, if any, till the finalisation of the schemes in accordance with law.
14. Subject to the above direction, the Writ Appeals are dismissed but in the circumstances there will be no order as to costs. Advocate's fee Rs. 250/- in each.
15. Sri D. Reddappa Reddy, learned counsel for the appellants, has requested to grant leave to appeal to the Supreme Court. We do not find any substantial question of law of general importance to be decided by the Supreme Court. Hence, leave to appeal to Supreme Court is refused.