RAMNATH VER.MA versus STATE OF RAJASTHAN

WANcaoo, J.-These five appe•le on oortili.catee granted by the Rajaethan High Court raise common questions and will be dea.lt with together. Appeals Noe. 142, 144 and 145 are with respect to Jaipur-Bharatpur route appeal No. 143 with respect to Jairur-Shahpur·Alwar-Himkathana route, and appeal No. 146 with respect to Ajmer-Kotah route .. It appears that the Rajasthan State Roadways, which is a State Transport Undertaking, pub!ibhed five schemes in pursuance of e. 68 C of the Motor Vehicles Act, No. 4 of 1939 (hereinafter called the Act). Later, the Government of Rajasth•n appointed the Legal Remembrancer to oonsider objections to these five draft schemes. Objections were filed by the Stage carriage permit-holders who were plying on these five routes. The objections with reference to the three routes with which these appeals are concerned werll heard un December 7 and 14, 1960 and the draft schemes were approved by the Legal Remembrancer on December 14 and 15, 1000, with slight modifications.

p. 154

It appears further that the objectors relating to Jaipur·Ajmer and Jaipur-Kotah routes, which were among the five schemes, published as above, objected to these two schemes on varioll1' grounds and prayed that they should be given an opportunity to show that the two draft·schemes did not provide an efficient, adequate, economical and properly co-ordinated road transport aervice and should therefore ho not approved and also prayed that evidence might be taken in support of their contentions. One of the permit holders on the Jaipur- Ajmer route waa Malik Ram who had contended that the draft-scheme should be rejected in itll entirety and had deaired to lead evidence for that purpose. 'fbe Legal Remembrancer, however, on the basis of an earlier decision of the Rajastb.an High Court in Okandar Bhan v. The State of Rajasthari that it was not open to him to reject tbe scheme in its entirety. and he could only either approve of lt or•modify it.. He further held that he could take no evidence while .considering objections to the scheme and aJl that he had to do was to hear arguments on either side. Malik Ram then moved the ~ajasthan High Court by a writ petition which was dismissed. He then came to this Court by special leave challenging the view taken by the Legal Remembrancer on thl' two points. above. This Court allowed Malik Ram's af'peal and held that it was open to the Legal ltemt>mbra.noer to reject the draft scheme or to take evidence, if neces· sary, though it was pointed out that it wo'uld be within the discretion .of the. State Government or the officer appointed by it to hear objections to decide whether. the ·evidence intended to be produ· ·ced was necessary and relevant to the inquiry, and if so to gi.ve a reasonable opportunity to the party desiring to lead evidevce to do' so within reason, and that the State Government or the officer eoncerned would· have all the powers of controlling the giving and recording of evidence that any court has. This decision was given on April 14, 1961 (aze Malik Ram v. State of Rajasthan e>J,

pp. 154–155

In the meantime a large numbel' of writ petit· ions were 'filed in the R&jaathan High Court cha.II· enging the approved SQhemes with respect· to the three routes with which we a.re concerned in the present appeals and · also with tespect •to. the three routes with whloh we are concerned in the present appeals and also with respe!lt tQ the other two routes. These petitions came to be heard after the decision of this Court.in Malik Ram' a ca.se( So far as the petitions relating to Jaipur Ajmer route were concerned, they were not pressed in view of the decision- of this Court quashing the suheme s. c. with respect to that route a.nd directing tho Legal Remembrancer to hear the objections over a.gain. With respect to Ajmer~Kotah route, the High LCourt allowed the objections on the basis of the decision of this Court in Malik Ram's case(') as the objector in those cases ha.d wanted to lead evidence on the question of rejection of the draft scheme in its entirety, a.nd they had not been given a.n opportunity to do so. But with respect to the three routes with which the present a.ppea.ls are concerned, the " High Court dismissed the writ petitions on the ground that there was nothing to indicate tha.t the appellant.a desired to lea.d evidence in eupport of their case that the draft-schemes should oo totally rejoeted. It was contended before the High Court that it was usele~s for the appellants to make any application for the taking of evidence because it would in an,Y case ha.'l'e been rejected the Legal Remembrancer ha.d a.lrea.dy ta.ken. tho view that he could no1; reject the scheme as.a. whole. The High Court was however not impr6886d· with this argument md held tha.t thti order of the .Lt>ga.l Remembrar.cer did not show tha.t he thought tha.t the draft scheme should be totally rejected but felt unable to do so because of the deci&ion. of the High Court in Gliander Bhan's oa.se (n. On the other hand, the High Court was of the view tha.t the Legal Remembrancer considered the objections raised before him in detail and bi& order showed tha.t he only thought tha.r, the schemes should be modified in pa.rt and were otherwise fit for approval. The a.ppella.nts then applied to the High Court for oertifiCa.tea which were granted; a.nd tha.t how the matter ha.a come up before us. ·

pp. 155–156

The main contentions. of the a.ppella.nts before us a.re the same whiab they raised .before·the Hiah Court. They urge that they did not get proper hearing before the Legal Remembranoer beoauae • of his view that it was not open to him to reject the schemes in their entirety and that they were not given an opportunity to lead evidence to conv· ince the Legal Remembrancer that the schemes should bo rejected in their entiret.y. It is not in dispute that the appellants never applied before the Leg.ii Remembranoer that they wanted to lead evidence on any point in support of their objections. Only in one writ petition (see C. A. 144 of 1962) it was averred that the Legal Remembrancer did not allow the appellants to lead evidence but that in our. opinion is not correct, because the Legal Remembrancer has filed an affidavit to the effect that no such oral reqmist was ma.de to him by the objeoto1s on the three routes with which these apprials are concerned. The High Court therefore was right in saying that it could not be said in these oases that the Legal Remembrancer had shut out evidence relating to the inquiry before ·him which tho objectors desired to produce. But it is urged on behalf of the appellants that as the Legal Remembrancer· had alrei~dy ta.ken one view in the case of Jaipur- Ajmer route it was useless for them to make nn application to him for leading evidence for that would have inevitably been rejected in view of the earlier , judgment of the Hajasthan High Court referred to above. E·ren though, this may be so, it fo remarkable that did not that prevent the objectors on the Jaipur-Ajmer and Jaipur-Kotah routes from making applications to the Legal l<emembrancer that the draft-schemes should be tiotally rejected and they should be given an opportunity to ]earl evidence to show this. We fail to see why the appellants could not have been taken the same course if they really desired to lead any evidence in order to make out their ease for

pp. 156–157

total rejection of the schemes with which they ' were concerneu. It seems to us clear therefore that at the stage when objections were being heard by the Legal Remembrancer there was no desire on the part of the appellants to lead any evidence in support of their objections. Nor docs it appear that when the writ petitions wern filed in the High Court the appellauts claimed that they had desired to lead evidence and had been shut out by the Legal Remembrancer. It was only after the decision in Malik Ram's case ( that applications were filed taking advantage of that decision and pointing out thBt the wrong approach of the Legal Remembrancer in holding that it was not open to him to reject the draft.scheme in itB entirety had resulted in the appellant's not getting an effective hearing. But it does not seem to have been suggested even at that (except in one case) that the appellants had desired to lead eddence before the Legal Hememh. rnncer and he had abut them out. Nor was it &hown at that stage what evidence the appellants could produce in E<Upport of their objectir·ns if an opportunity had been given to them. Lastly even this Court the appellants have not indicated what evidence they could produce in support of the objections raieed by them. It seems to us therefore that th~ appellants never really desired to produce evidence in order to establish that tho schemes a whole should be rejected and that they put forward the contention that they would have proriuced . evidence if given an opportunity to do so, merely taking advantage of he decision of this Court in Malik Ram's case ( Further it seems to us on looking at one of the objec ions filed before the Legal RemPmbrancer in C.A. 142 of 19()2 as a sample that thero wM nothing in the objections. which really required the giving of cvidenc!' and which would show that there could be any d11sire on the part of the objectors to lead evidence. The objections were of a genera.I nature nnd all that was desired was that "the State Go;ernment must weigh the objections of the undersigned with reference to the actual conditions obtaining on the said route, by such method aB holdiog public inquiry on site, by looking into the past records of service provided by the objector, by inspecting the vehicle of the objector and by comparing' the actual facilities provided by the objector." In s .vrt, a perusal of the objections shows that was being contended before the Legal Remembrancer was not so much that the draft.schemes were not efficient, adequate, economical , and properly coordinate but that tho objectors were providing transport service which was more, efficient, adequate, economical and properly co-ordinated than the service proposed to be provided in the draft. schemes. That however is hardly a r9ason for rejecting the draft-schemes in their entirety. Further, a perusal of the , o,rder of the LegBl Remembrancer summe,risinJ? the objections which a.re relevant under s. G8D shows that the objection were of such a nature as to require the productions of evidence in support of them for the question of fa.ct raised there were not in dispute. Therefore, there could' be an effective hearing b fore the J..egal Rem em bra.ncer if o bjec:tors were given a chance to put forward their arguments in support of the objections even withnut any evidence. We are therefore of opinion that the appellants cannot . in the circumstances take advent.a"e of the di,cision in Malik Ram's case ( and on the facts· and circumstr.nces in the present appeals there iq no doubt tl1at they had an effective hearing and the order of the Legal Kemembrancer approving the schemes is not in any way vitiated by the wrong view taken by him that he had no. power: to reject the draft-schemes in their entirety. It seems that he considered the .draft-schemes' on merits as required by ss. 680 and 68D and hel:l that it was in accordance with the requirements of s, 680. The facts that in some cases the number of buses might have· been reduced , or. the fares have been raised or some of the direct services-hi¥:1 to be out down where their routes ()verlapped with the routes in the three draft-schemes would not necessarily lead to the conclusion that the drafwchemee were not in conformity with the requirements of e. 680. The contention therefore baaed on the judgment of this Court in Malik Ram'a caae (')must on the facts and circumstances of these appeals be rejected.

pp. 157–160

Besides this ma.in objeotion, three subsidiary points have been raised on behalf of the appellants. It appears that in some ca.see the objectors served routes which overlapped the three routes which have been taken over. In these oases what has been done is that in some oases the permits of the object.ors have been oanoelled with reepeot to the overlapping pa.rt of the routes while in other oases the objectors are allowed to ply even on the overlapping pa.rt but they have been forbidden to pick up pa.seenl!ers on the overlapping pa.rt for destinations within the overlapping pa.rt. This latter method is called ma.king the permit.a ineffeotive for the overlapping part. Now the grievance of those whose permita have thus been rendered ineffective for the overlapping part u two.fold. In the first place, it is ea.id that this cannot be done and in the second place, it ie ea.id that even if this can be done, the result is that those whose permits have been made ineffective for the overlapping part will not be entitled to compenaation under 68G read with e. 68F(2). So far as the first contention is concerned, we are of opinion that there is no force in it. Under s. 680, it is open to frame a. 11cheme in which there is a partial exo lusion of private operators. Ma.king the permits ineffective for the overlapping pa.rt only a.mounts to partial exclusion of the private operators from that route. In the circumstances an order ma.king the permit ineffective for the overlapping pa.rt would be justified under s. 680. As to the second point, there is no doubt that where the permit is ma.de ineffective the permitholder not be entitled to any compensation under e. 68G. It is said that this amounts to discrimination between those whose permits have been cancelled for the overlapping part and who would get c;impeneation and those whose permits have been made ineffective and who would therefore not get compensation, Now we should have though that the making of the permit ineffective for the overlapping part of the route and allowing the permit-holder to pick up passengers on the overlapping route for destinations beyond that portion of the route would be to the advantage of the permit-holder. In any case, if any permit-holder feels that he would rather have hie permit cancelled for the overlapping route and get compensation it is for him to raise that objection before the State Government or the officer bearing objections. If he does not do so, he· cannot be heard to say that there is discrimination because his permit· has been rendered ineffective and he gets no compensation, for it may very well be that he is still better off than the person whose permit has been cancelled for the overlapping part of the route. In any oase unless facts are brought on the record which would show that in spite of the advantage which the permit ·holder, whqse permit has been made ineffective for the ove~lapping part of the route, gets by picking up passengers on the overlapping route for destinations beyond that part is not equal to the compensation which he would get in case his permit is cancelled for the OTerlapping part of the route, there would be no case for discrimination under Art. 14 of the Constitution. In the present appeals no such case has been made out on the facts and therefore we must reject this argument based upon discrimination.

pp. 160–161

Secondly, it is urged that in the case of some persons, the permits have neither been cancelled nor made ineffective over the overlapping route and this amounts to discrimination. The reply of the State to this contention is that it was by oversight that permits of certain permit-holders on the overlapping routes have not been cancelled or made ineffective and it is further said that the State would have corrected this oversight but for the stay order obtained from this Court. Discrimination envisaged under Art.. 14 is oonecious discrimination and a discl'imin:i.tion arising out of oversight is no discrimination at all. In the present case the discrimination has resulted because of an overt1ight which the State is prepared to rectify. It is not tho case of the appellants that these fow permit-holdera a.re being favoured deliberately f9r ulterior reasons. We therefore accept the reply of the State that few permit-holders on the overlapping route ha..-e been left out by oversight and that their permits will be dealt with in the same manner as of the appellants, as soon as the stay order passed by this Court comes to an end. There is therefore no force in this contention also l\nd it is hereby rejected.

pp. 161–162

Lastly, it· is urged that the permits on the Ajmer-Kotah route have been cancelled or rendered ineffective between Deoli and Ajmer only and therefore the permit-holders are entitled to ply between Deoli and Kotah. It appears however that Deoli-Kotah part of the Ajmer-Kota.h route is common to Ja.ipur-Kotah route from Deoli to Kotah and the necessary orders for exclusion of permit-holders have been paesed in connection with the Jaipur-Kotah route. The scheme with respect to that route was quashed by the High Court and the matter sent back for re-hearinc the objectors in accordance with the decision of this Court in Malick Ram' case ('). Ther1·fore, the question whether the permit,.holders can ply on the Deoli· Kota.h portion of the Ajmer-Rotah route will. depend on the decision of the Jaipur:Kotah scheme. If that scheme is upheld, on re-hearm~, the exclusion will continue. But if that scheme not upheld, the position may have to be reviewed in connection with. this portion of the Ajmer-Kotah route. In the circumstances no relief can be granted to the appellants of the Ajmer-Kotah route at this stage ..

pp. 162–163

The appeals 1're hereby dismissed with costsone set of hearing costs.

p. 163

Appeals dismissed. M/S. SURAJMULL NAGARMULL

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v.

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STATE OF WEST BENGAL (S. Jr. DAS, M. HIDAYATULLAH and J. O. SHAH, JJ.)

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Arbitration-Arbitrator appointed und.r Defence o/ India Act, if a court-Righl appeal against award, if and when, exercisable-Defence of India Act, 1939 of 1939), "· 19(1), 19(1)(!) (g), J9(3)(c)-Defence of India Rules, 1939, 75A, 19, second proviso.

p. 163

The appellants were tenants of ' three warehouses and vacant land, which were used for storage of jute belonging to the appellants. By an order issued under r. i5A of the Rules framed under the Defence of India Act, 1939, the warehouses were requisitioned by the Governme11t. arbitrator was appointed unders. 19(1)(b) of the Defence of India Act to the amount of compensation payable to the owner. The claim of the appellants to compensation loss of earning, and for "loss of business" was rejected the arbitrator. An appeal filed by the appellants against the arbitrator was dismissed by the High Court at Calcutta as not maintainable.

p. 163

Held, that the arbitrator appointed under of the Defence of India Act is not a court, nor a tribunal subject

p. 163

to the appellate jurisdiction of the High Court. the Act , a right to appeal against the award of the arbitrator

p. 163