NEHRU MOTOR TRANSPORT CO-OPERATIVE SOCIETY LTD. AND OTHERS versus THE STATE OF RAJASTHAN AND OTHERS

. W ;1-NCHOO, J.-'J;'his p·eiition \lnder· ~rt. '3;i of t9e Oo9stitutioir challenges the, constitutionality of a scheme finalised ,•under s. 68D (3) of the ·Motor Vehicli;s Act, No. IV of.1939, (herein;;ifter referred t& as th,c Act) in H,1e State cifRajasi'lnan. Thi'!. peti; tion~rs , arc holders of .stage-carrfage permits on Jodhpur-Bilara and Bilar.a-Beawar routes. A draft scheme was published under s. 680 of the f.ct by the Rajasthan Roadways, which is a State Trapsport UndeFtaking, ·(hereinafter referred to a5 the Road-_ ~ays),' on January 26, 11J6I. It provided for·tak1n"'g ov~r of, the 'transport service on.the Jodhpur-Bilara, ~eawar·Ajmer route by the Roadway~. Further it provided for taking over three overlapp5ng routes or' portions thereof which were entirely on J odhpur: Bilar,l;l-B.eawar-Ajmer rqad, najpely, Jodhpur-Bilara, .8ilara,,.1Jeawqr, and Beawar-Ajmer, and as required by 3 of the Rajasthan State· Road Transpelrt Services (Development) Rules, 1960, (he~einafter referred to as the Rules), the names of the permit-. holders''on these three over lapping routes with their pe,rmits were ,..also specified for cancellation, and no transport vehicles otlier than the vehicles of the Road-' ways were to ply on the route to be taken over. The \ISual time was also given for filing objections to~all tltose whose interests were affected by the draftschemc. The petitioners filed objections under s.68D of, ~he Act, which were Iicard by the Legal Remcmoranccr tu the Government of Rajasthan, he being. the person appointed to hear and decide the objections. The objectors wanted to lead evidence and dlc:r' produce some witnesses· but some witness.es to. whom summonses were issued did not turn up and the objectors wanted the issue of coercive processes against them. The Legal Remembrancer however refused this on the ground that he had no power to issue coercive process. As the objectors did not produce any further witnesses, the arguments were heard and the Legal Remembrancer gave his decisions on May 31, 1962.

pp. 222–223

One of the main points then raised before the Legal Remembrancer was that there were a dozen other overlapping routes which were not touched by the . scheme, and therefore the scheme was bad on the ground of discrimination. It may be mentioned that these overlapping routes were not completely overlapping the route to be nationalised, though the vehicles plying on those twelve routes had to pass over part of the .Jodhpur-Bilara-Beawar-Ajmer road. It was urged on behalf of the Roadways before the Legal-Remembrancer that the intention was to render ineffective the permits on these twelve routes also insofar as they overlapped the route to be taken over, though these. route> were not mentioned in the draft-scheme like the three routes which were completely covered by the .Jodhpur-Bilara-Beawar-Ajmcr. route and no notice was apparently·• given to the seventy-two permit-holders on these twelve partially over-lapping routes. The Legal Remembrancer held that even though these routes were not specified in the draft-scheme and no notice had been given to the permit-holders thereof, it was open to him to render the permits ineffective wit!! respect to these routes also and proceeded to pass orders accordingly.

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Thereupon five writ petitions were filed in the High Court of Rajasthan by the permit-holders on the three routes which had been notified in the draftscheme as well as by some uf the permit-holders of the twelve partially overlapping routes which had not been notified but which had been affected by the order _Qf..the Legal Remembrancer. Two main points w<:re urged before the High Court insupport of the challc1igc to the validity of the ~rhcnu: ns Jinally published on June iu, UJu2. lu tlic first place, it was urged that the State Government whrn publishing t-he scheme as required by s. GSD(il) of the Act had made ccrMin changes in it beyond the decision of the Legal Remembrancer and thercfOTe-thc final scheme as published was invalid as it was not open . .to the State.. Government to make any changes in ·the scheme as approved by the Legal Remembran · cer. Secondly,it was urged· on behalf of the op_erators.on the twclve·pai:tially overlapping routes which had .not been notified in the draft scheme ;hat it was not op cu to the Legal Remembrancer to affect their interests when/ their routes w~re .not specified in ll~e­ draft scheme tlnd ·they had been given ncr ·notice thereof. The /High Court accepted both these contentions. It was of the .opinion that it was not open to the State Gqvernment to make any modification in tlie. dcciswn of the Legal R_emembranccr and inasmuch as that had been done the final scheme as published was invalid. It also held that as the twelve partially overlapping routes were not notified in the draftschcmc and no notice had been given to the permitholders thereof, it was not open to the Legal Remem-brancerlfo pass any orders with respect to them. It therefore set aside the scheme as published under s. 68D (3) of the Act. Finally, the High Court observed that as the scheme as published, was not the scheme as apwoved by the Legal Remembrancer and as the decision of the Legal Remembrancer becomes final when it is published, it was open to the Legal Remembranceer to modify his decision, even though he may'have signed and pronounced it. The Legal Remembrancer was thus directed to go into the m,1tter again and leave the question of the twelve partially overlapping routes fqr a subsequent scheme. The final scheme as published under s. 68D (a) of the Act was set aside and the Regional Transport Authority was directed not to implement it until it was regularised in accordance with law.

pp. 223–225

The matter then went back to the Legal Remembrancer who considered the draft.scheme in the light of the decision of the High Court and after hearing further agruments disposed of the objections. The main effect of his decision was that all the twe: Ive partially overlapping routes were left out of the scheme and only the three routes notified in the draftscheme which were completely covered by the rpute Jodhpur-Bilara-Beawar-Ajmer, were affected. The decision of the Legal Remembrancer approving the scheme as modified by him was published on August 31, 1962, and the present petition is directed against that decision.

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The decision of the Legal Remembrancer is being challenged before us on the following grounds:-

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( l) A draft-scheme under the Act has to be approved as a whole and the procedure of approving a part of the scheme once and another part later is illegal, and therefore, the approval given to the draft-scheme by the Legal Remembrancer does not result in app- . roving the scheme, as required by Jaw.

p. 225

(2) It was not open to the Legal Remembracer to review his order dated May 31, 1962 even after the decision of the High Court, and insofar as the Legal Remembrancer eid so in obedience to the order of the High Court he abdicated his own judgment, and the approval therefore after such abdication of his own judgment, is no approval in law.

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(3) As the scheme as published on June 16, 1962 was set aside by the High Court, it was the duty of the Legal Remembrancer to give a fresh hearing ab initio to the objectors which he did not do, and therefore the approval accorded by him to the draft-scheme after the judgment of the High Court is no approval in law .

pp. 225–226

( 4) Hearing requires taking of evidence; but as the Legal Remembrancer expressed his inability to compel attendance of witnesses, there was no hearing

p. 226

contemplated by law, and therefore the approval of the draft-scheme without a proper hearing is no approval in law.

p. 226

( 5) There was discrimination inasmuch as the operators of the twelve partially overlapping rout!s were left out of the scheme. Re. (1) (2).

p. 226

There is no doubt that a draft-scheme has to he considered as a whole and all objections to it have to be decided before it can be approved ·y the State Government or by the officer appointed in that behalf, and the Act does not envisage approving of a part of the scheme once and putting it into effect and leaving another part unapproved and left over for enforcement later. It is also true that the Act does not provide for review of an approval once given by the Legal Remembrancer, though he may be entitled to correct any clerical mistakes or inadvertent slips that may have crept in his order. It is also true that the Legal Remembrancer when considering the objections has to exercise his own judgment subject to any directions that the High Court might give on questions of law relating· to a particular draftschcmc. But we do not think that this is a case where the draft-scheme has been approved in part and another part of it hi15 been left unapproved to be taken up later; nor is this a case where the Legal Remembrancer abdicated his own judgment or reviewed his earlier decision when he proceeded to r~con­ sidcr the matter after the High Court had set aside the scheme as published under s. 68D (3) of the Act 0n J uni" l 6, Hl62.

p. 226

Let us sec what the draft-scheme was meant to provide in this case. As we have already indicated, the draft-scheme was published in order to take over the Jodhpur-Bilara-Beawar-. \jmer route. It also provided for taking over all the three complete! y overlapping routes, namely, Jodhpur-Bilara, Bilara- Beawar, and Beawar-Ajmer routes, and also portions thereof falling entirely on this road from Jodhpur- Ajmer. There was no indication in the draft-scheme for taking over what arc called partially overlapping routes, on I y parts of which overlapped on the .Jodhpur-Bilara-Bcawar-Ajmer road. These partially overlapping routes were of two kinds. In some cases one terminus was on Jodhpur-Bilara-Beawar-Ajmer road while the other terminus was not on this road. In other cases, both the termini of the overlapping routes were not on this road, though a part of the route fell on this road. Rule a of the Rules provides. for indicating all such overlapping routes as are intended to be affected and the draft scheme in the present case only indicated three routes which were completely on this road namely, Jodhpur-Bilara, Bilara- Beawar, and Beawar-Ajmcr, and was not concerned at all with the other overlapping routes, where overlapping was only partial. It was therefore in our opinion unnecessary to bring in the question" of the twelve partially overlapping routes when o~jections to this draft scheme were being considered. There is no doubt that the Roadways was also responsible for the introduction of this confusion for it seems lo have been urged on its behalf, when the objections were considered on the first occasion, that these partially overlapping routes were alw meant to be covered by the draft scheme, even though they were not mentioned in the draft scheme as required by r. of the Rules and no notice had been issued to the permitholders of those routes. The petitioners also raised a point with respect to these overlapping routes, and that is how on the first occasion, the Legal Remembra11-cer held that even though these routes had not been included in the draft scheme and no notice had been given to the permit-holders thereof, it was open to him to pass orders with respect thereto and he proceeded to render the overlapping part of these routes ineffective. It is obvious from a perusal of the draft scheme that these twelve partially overlapping routes were not includtd in it at all and they were brought in only because of the objection raised by the petitioners and the reply of the Roadways that they were meant to be included. That is why when thr writ petitions were decided by the High Court, it pointed out that the scheme did not intially include the partially overlapping routes. The High Court theri went on to observe that if the Legal Remembrancer thought fil to include these routes in the scheme also, he should have given notice to all concerned to file their objections. With r-_•spcct, it seems to us that this observation of the High Court is not correct. If the scheme did not include the partially overlapping routes-as it undoubtedly did not, in spite of what the objectors might have said and what the Roadways might have maintained before the Legal Remembrancer on the first occasion-it was not opr.n to the Legal Remembrancer to include these overlapping routes in the scheme at all and he could not <lo so even if he had given notice to the permit-holders on these overlapping routes. The qurstion therefore whether the final approval of the draft scheme as published on August :JI ,I 96~ is an approval of a part of the scheme only, leaving another part of the scheme unapproved and therefore liable to enforcement later, can only admit of one answer, namely, that the approval was of the scheme as a whole. The contention therefore on behalf of the petitioners that part of the scheme has been approved and the rest of it has been left unapproved, can have no force on the facts of the present case. The twelve overlapping routes were never meant to be affected by the scheme which left them untouched. The contention that only part of rhe scheme has been approved appears to have been based on the fact that these routes have not been rendered ineffective as to the overlapping part. But as these routes were never included in the draft sclli,me, the approval given t9-the ·draft scheme without touching these routes cannot in the circumstances be called an approval of a part of the scheme.

pp. 227–229

Nor do we think that there is any force in the contention that the Legal Remembrancer abdicated his judgment when going irito the question on the second occasion after the judgment of the High Court. The order of the Legal Remembrancer dated August 17, 1962 shows that he reconsidered the entire matter after hearing further arguments and there can be no doubt that he was exercising his own judgment when he finally decid~d to approve the draft scheme with certain modification. What the Legal Remembrancer has done in this case is to' reappraise the evidence in the light of the legal position indicated by the High Court. Nor do we think that there is any substance in the argument that the order of the Legal Remembrancer dated August 17, 1962, is a review of his earlier order dated May 31, 1962. No question of review of that order arises for that order was in effect set aside when the High Court set aside the final scheme as published on June 16, 1962. It is true that that publication made certain further modifications into the scheme as approved by the Legal Remembrancer but that in our opinion makes no difference to the fact that the order of the High Court setting aside the final scheme as published on .June 16, 1962 put an end to the order of the Legal Remembrancer dated May 31, 1962 also. This argument as to review has been raised because of the observation in the judgment of the High Court that the scheme as finally published on June 16, 1962 was not the decision of the Legal Remembrancer because of the changes made in it by the State Government and therefore it was open to him to modify it, though he might have signed his decision and pronounced it. With respect, we consider that this observation is not correct. It may be that the State Government liad no authority to modi(y the decision of the Legal Remembrancer but when the High Court set aside the finally approved scheme as published on June Hi, I 962, it meant the decision of the Legal Remembrancer dated May :H, 1!!62, also came to an end, for the final scheme as published on June I 6, I 962 was undoubtedly based on it, even though there were further changes in that decision at the time of publication. In the present case the order of the High Court was analogous to a remand as understood iu courts of law. What the Legal Remembrancer did on the second occasion was to reappraise the evidence iu the light of the law laid down by the High Court. Therefore, it cannot be said that the dcHsion of the Legal Rcmemliranccr on August Ii, I !Jfi2, is a review of his earlier decision <lated May 31, 19!i2. It must be treated as a fresh decision, after J!ic High Court h'td set aside the final sch~me as published on June Hi, l!lfi:.!. Though therefore the proposition put forward on lichalf of the pefr.ioners may be accepted as correct, there is no scope for applying the principles contained in these propositions to the facts of this case. The contention therefore that the scheme as finally published on August 31, 1!!62 is bad because it militates against these principles must be rejected. lle. (J) & (4).

pp. 229–230

It is urged that after the High Court set aside the final scheme as published on June 16, 1962, the Legal Remembrancer should have given a fresh hearing ab initio and that he did not do so. It is further urged that in as much as there is provision in the Rules for compelliug the attcndaucc of witnesses whom an objector might like to produce, there can be no effective hearing of the objection, and therefore the scheme as finally published on August 31, 1962, is invalid. It is not disputed that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court. What is urged however is that the objectors should have been allowed to give evidence afresh before the Legal Remembrancer finally disposed of the objections. We are of opinion that though the result of the order of the High Court was to set aside the order ofthe, Legal Remembracer dated May 31, 1962, it cannot be said that the order of the High Court wiped out the evidence which the objectors had given before the Legal Remembrancer on the first occasion. We have already mentioned the two grounds on which the High Court set aside the final sc::heme as published on June 16, 1962, and those grounds had nothing to do with the evidence which was already produced. In our opinion, it was open to the Legal Remembrancer to take that evidence into account and it was not necessary that evidence should be given again, particularly when no fresh issues arose; nor was the Legal Remembrancer bound to take fresh evidence simply because the final scheme as published on June 16, 1 \l(i2 had been set aside on account of certain technical and Legal defects. When the objectors had been given full opportunity to lead evidence on the previous occasion which was still there for the Legal Remembrancer to take into account, it was sufficient for the Legal Remembrancer to hear the objectors' arguments in full after the ordrr of the High Court in the light of the observations made by it, and the petitioners therefore cannot have any grievance on the score that they were not given any hearing after the order of the High Court. If it is borne in mind that the order passed by the High Court in the proceedings was in the nature of a remand order, all these objections will plainly be untenable.

pp. 230–231

As to the contention that the Rules do not pro· vide for compelling the attendance of witnesses and all that the Legal Remembrancer can do is to sum mon witnesses who may or may not appear in an:i· wcr to the summonsr.s, it is enough to say that the proceedings before the Legal Remembrancer though quasi-judicial arc not exactly like proceedings in court. In proceedings of this kind, it may very well . be concluded when a witness is summoned and doei; not appear, that he docs not wish to give evidence, and that may be the reason why no provision is made in thr Rules for any coercive process. We think in the circumstances of the hearing to be given by the Legal Remembrancer, it is enough if he takes evidence of the witnesses whom the objectors bring before him themselves and if he helps them to secure their attendance by issue of summonses. But the fact that the Rules do not provide for cocrci ve processes does not mean in the sper:ial circumstances of the hearing before the Legal Remembrancer that there can be nc• proper hearing without such coercive processes. Wear« therefore of opinion that the Legal Remembrancer diet give a hearing to the objectors after the order of th<: High Court and that in the circumstances that hearing was a proper and suJlicient hearing. The challenge therefore to the validity of the scheme a~ p11blished on June 16, I !IC:!, on this ground must be rejected. Re. (:j).

p. 232

Lastly we come to the question of discrimination. The argument is based on the fact that the twelve partially overlapping routes to which we have already alluded have not been touched by the scheme. That is undoubtedly so. \\"c have already pointed out that in the case of some of these routes one terminus is on the Jodhpur-Bilara·Bcawar-Ajmer road while the other is not on this road. In some cases neither termini is on this road and only a part of the route overlaps this road. The argument is that as the permit-holders on these partially overlapping routes have not been touched by the scheme, there is discrimil'ation inasmuch as the permit-holders on the three routes which were totally overlapping the route which was being taken over, have been completely excluded. We do not think that this amounts to discrimination. It may be pointed out that under

pp. 232–233

680 it is open to take over any area or route to the complete or partial exclusion of other persons. Therefore, it was open to the State Government to take over this route only and exclude those who may be plying completely on this route or parts thereof and unless it can be shown that others who are similarlv situated have not been excluded from the scheme there can be no question of discrimination. In our opinion it cannot be said that those permit-holders whose routes were completely covered by the .route taken over stand on rhe same footing as those whose routes were only partiaUy covered by the route taken over. It may very well have been conside~ed that in the first instance only those permit-holders will be excluded whose routes are completely covered by the routes taken over; and if that is permissible under the Jaw it cannot be said that that would amount to dis..:rimination when there is an obvious distinction between routes completely covered by the route to be taken over and the routes partially covered by the route to be taken over. We have been informed that since this scheme was approved steps have been taken even to exclude those permit-holders whose routes are partially covered by making their permits ineffective over the overlapping part of the route. But that apart, we can see no ground to uphold the plea of discrimination in the present case, for routes completely covered by the route taken over stand on a different. footing from the routes only partially cove· , red. The contention therefore that the final scheme as published on August 31, l!J62 is bad because it discriminates in this manner, must be rejected.

p. 233

\Ve therefore dismiss the petition but in the circumstances of this case pass no order asto costs.

p. 234

THE HINDUSTAN TIMES LT )., NEW DELHI

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v. THEIR WORKMEN

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VICB VERSA (P. B. K. N. K. C. DAS GuPTA and J.C. JJ.)

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Di~pute--Fi•·atiun of IVage-Lidng of

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w~gc Tribunalof

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to ity-J!.ietireni.ent 1tqe-Retrusper:tit·c azvard-J)c/hi

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7 of

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Act, of

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(U of

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The Chief Commissioner, Delhi, referred an L1dwtrial dispute for adjudication to the Industrial Tribunal, Delhi, which gave its award on March 16, 1959. Both the appellant and the respondents were dissatisfied with the award and they came to this Court by leave. The award was challenged by the appellant with regard to scales of pay, dearness alloeffect of the award. The respondents attacked the award as reg~rds the working hours, l•ave rules and retirement age.

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that while social justic demand• that workmen should get a fair share of the national income which they help to produce, it has also to be seen that that docs not result in the drying up of the source of national income itself. lnroada

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