A. Sundaramma and Others vs The Government of India and Others

M.N. Rao, J.—All the writ petitions are interconnected and so they are disposed of by this common judgment.

All the petitioners are holders of stage carriage permits on different routes. The Motor Vehicles Act, 1988 (Act No. 59 of 1988-hereinafter referred to as ''the new Act'') came into force on 1-7-1989. By Section 217(1) of the new Act, the Motor Vehicles Act, 1939 (for short ''the old Act'') was repealed. Sub-section (2) of Section 217 incorporates provisions as to the matters which are saved notwithstanding the repeal of the old Act. Clause (e) of Section 217(2), which is relevant, reads :

"217(2): Notwithstanding the repeal by Sub-section (1) of the repealed enactment.

(a) to (d)------------

(e) any Scheme made u/s 68-C of the Motor Vehicles Act, 1939, or under 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;"

Chapter IV A of the old Act contains special provisions relating to State Transport Undertakings. Section 68-C, which deals with preparation and publication of schemes of road transport service of a State Transport undertaking, roads:

"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 purpose of providing an efficient, adequate, economic and properly coordinated 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 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".

Section 68-D, which relates to objections to the Scheme, is in the following terms:

"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 State 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."

Section 68-E, which concerns with cancellation of modification of the scheme, reads :

"CANCELLATION OR MODIFICATION OF SCHEME :-(1) Any scheme published under Sub-section (3) of Section 68-D may at any time be cancelled or modified by the State Transport Undertaking and the procedure laid down in Section 68-C and Section 68-D shall, so far as it can be made applicable, be followed in every case where the scheme is proposed to be cancelled or modified as if the proposal were a separate scheme:

Provided that the State Transport Undertaking may, with the previous approval of the State Government, modify without following the procedure laid down in Section 68-C and Section 68-D, any such scheme relating to any route or area in respect of which the road transport services are run and operated by the State Transport Undertaking to the complete exclusion of other persons in respect of the following matters, namely :-

(a) Increase in the number of vehicles or the number of trips;

(b) Change in the type of vehicles without reducing the seating capacity;

(c) Extension of the route or area, without reducing the frequency of the service; or

(d) Alteration of the time-table without reducing the frequency of the service.

(2) Notwithstanding anything contained in Sub-section (1), the State Government may, at any time, if it considers necessary in the public interest so to do, modify any scheme published under Sub-section (3) of Section 68-D after giving-

(i) the State Transport Undertaking, and

(ii) any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification, an opportunity of being heard in respect of the proposed modification."

Although six contentions have been raised in this batch of writ petitions, the learned counsel appearing for the petitioners have confined their arguments to the questions : (1) Whether the proposals by way of modification to approved schemes u/s 68-E (1) and published u/s 68-C of the old Act are saved by Section 217(2)(e) of the new Act, and (2) Whether the proposals u/s 68-� published u/s 68-C and approved u/s 68-D of the old Act have been saved by Section 217(2)(e) of the new Act.

Three of the contentions raised but not argued have been covered by the judgment rendered by me in the earlier batch of writ petitions-Writ Petition No. 2763 of 1990 and batch-which was affirmed by the Division Bench in Writ Appeal No. 1296 of 1990 and batch. They are : (1) The procedure u/s 101 of the new Act was not valid, (2) Chapter VI of the new Act is unconstitutional; and (3) Hearing by the Honourable Minister for Road Transport was vitiated due to bias. Shri Venkataramana, one of the learned counsel appearing for the petitioners, says that the contention regarding the validity of Sections 99 and 100 of the new Act raised by him in the writ petitions need not be decided and that the petitioners should be given liberty to advance that argument, in future, should an occasion arise. I cannot accept his request. In the earlier batch, the constitutionality of Chapter IV of the new Act has been upheld and as Sections 99 and 100 form part of the said Chapter, it is not open to the petitioners to once again raise this point.

Shri Venkataramana, learned counsel for some of the petitioners, contends that Section 68-C of the old Act applies to cases where for the first time nationalisation of road transport service is contemplated. The requirements for invoking Section 68-C are different from the requirements for application of Section 68-E (1). The proposals u/s 68-E(l) are required to be published only in accordance with Section 68-C and objections to be heard and approval to be accorded u/s 68-D. The application of the procedure under Sections 68-C and 68-D in respect of matters coining u/s 68-E (I) will not convert the proposals u/s 68-E (1) as proposals u/s 68-C. Shri Sikhamani, another learned counsel for some petitioners, contends that the language of Section 217 (2) (e) of the new Act is clear and explicit. What all that clause saves are the schemes substantially and effectively referrable to Section 68-C but not the matters covered by Section 68-E and published u/s 68-C. The statutory rules, in regard to matters covered by Sections 68-C and 68-E, according to the learned counsel, clearly point out the distinction between the two. He also contends that a modified scheme u/s 68-E (1), by any stretch of reasoning, cannot be approximated to a draft scheme u/s 68-C. Shri Jwala, learned counsel appearing in some writ petitions, says that the words "any scheme made u/s 68-C-----" occurring in Section 217(2)(e) of the new Act must be strictly interpreted. The other counsel appearing for the petitioners advanced arguments in support of the aforesaid contentions.

Shri D. Reddappa Reddy, learned counsel appearing for the Andhra Pradesh State Road Transport Corporation, in opposition, maintains that every proposal for modification of an approved scheme u/s 68-E (1) is also a scheme u/s 68-C. There is no independent existence for a proposal u/s 68-E; invariably it must emerge only as a scheme u/s 68-C. Any scheme u/s 68-E has no existence unless it is published u/s 68-C. The words "any scheme made u/s 68-C-" occurring in Clause (e) of Section 217(2) of the new Act encompass the matters covered by Section 68-E also. Any ambiguity in this regard, according to the learned counsel, was removed at the stage of the passing of the Bill by both Houses of Parliament. In the Motor Vehicles Bill, 1987 (which was enacted as the Motor Vehicles Act, 1988), Clause 218 (2) (d), which deals with savings, contained the words "the scheme u/s 68-C of the Motor Vehicles Act-". Those words could be interpreted as meaning only the schemes directly and substantially referrable to Section 68-C. With a view to making the position explicit at the time when the Bill was adopted, the words "any scheme made u/s 68-C-" were advisedly incorporated in Clause (e) of Section 217(2) of the new Act.

The question whether the proposal u/s 68-E (1) could be considered as a scheme u/s 68-C is no longer res Integra. A Division Bench of this Court, comprising P.A. Choudary and Lakshmana Rao, JJ., in B. Rama Rao Vs. The Secretary, Regional Transport Authority, Srikakulam and Another, , considered this question. P.A. Choudary, J., speaking for the Division Bench, held:

"Now the proposal in this case made by the State Transport Undertaking on 22-9-1983 is a proposal made not u/s 68-C of the Act but is a proposal made u/s 68-E of the Act. Section 68-E does not call such a proposal for modification of an existing scheme as a scheme. It merely calls for the application of the procedure enumerated in Sections 68-C and 68-D for the purpose of approval or modification of a scheme submitted by the State Transport Undertaking. It, therefore, follows that the proposal to modify the scheme made by the State Transport undertaking u/s 68-E of the Act cannot be called as a scheme. Now Section 68-F (1-A) as well as Section 68-F (1-C) of the Act speak of the pendency of a scheme for the approval of the Government. In view of the fact that a modification suggested u/s 68-E is not treated as a scheme, it must be held that pending the approval of the suggested modifications to an existing scheme, Section 68-F (1-A) or 68-F (1-C) cannot be made applicable."

After referring to an earlier Division Bench judgment of this Court in Writ Appeal Nos. 339 and 359 of 1968, the learned Judges overruled the view expressed by Ramaswamy, J. (as he then was) in Srinivasa Rao v. STAT, 1984 (1) ALT (NRC) 84 in which it was held that the proposal to modify the approved scheme is a separate scheme u/s 68-C of the Act. The Division Bench concluded on this question:

"We have found that a proposal to modify an approved scheme falls u/s 68-E and not u/s 68-C of the Act and that, therefore, the proposal cannot be treated as another draft scheme."

The decision of the Madhya Pradesh High Court in Madhya Pradesh State Road Transport Corporation Vs. The State Transport Authority, M.P., Gwalior and Another, was cited before the Division Bench. In that case, the Division Bench of the Madhya Pradesh High Court had taken the view that a proposal to modify or cancel the scheme u/s 68-E can also be called a scheme u/s 68-C. Our Division Bench has not agreed with the view of the Madhya Pradesh High Court. As I am bound by the decision of the Division Bench of this Court, I cannot accept the contention of Shri Reddappa Reddy that the view taken by the Madhya Pradesh High Court is correct.

Even if the question had not been concluded by the Division Bench in Rama Rao''s case (1 supra), I am inclined to take the view that the matters covered by Section 68- E cannot be equated with schemes u/s 68-C.

In order to invoke section 68-C, the State Transport Undertaking must form an opinion that for the purpose of providing an efficient, adequate, economic and properly co-ordinated road transport service, it is necessary in the public interest that the road transport service in general or any particular class of service should be run by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons and for this purpose it may prepare a scheme giving the particulars of the nature of the services proposed to be rendered and it shall cause every such scheme to be published in the Official Gazette. After the scheme is so published, objections are called u/s 68-D (1) and the State Government is empowered to consider objections and accord approval under Sub-section (2). The pre-conditions incorporated in Section 68-C are not present for invocation of Section 68-E. Power is conferred on the State Transport Undertaking u/s 68-E (1) to cancel or modify any scheme published u/s 68-D (3) and for this the State Transport Undertaking must follow the procedure laid down in Section 68-C and Section 68-D "so far as it can be made applicable". It is difficult to accept that although specifically the necessary pre-requisites mentioned in Section 68-C are not incorporated in Section 68-E but for invocation of power u/s 68-E(1), the State Transport Undertaking must take them into account, as contended by Shri D. Reddappa Reddy. The impugned schemes relatable to Section 68-E and published u/s 68-C do not mention that any of the pre-requisites specified in Section 68-C have been taken into account. The publication in the Official Gazette was made under Rule 315 of the Andhra Pradesh Motor Vehicles Rules. That Rule is a composite one. It encompasses both the schemes u/s 68-C and those made u/s 68-E (1) and require to be published u/s 68-C. The schemes made u/s 68-C are to be in Form No. 50 STU. Paragraph 1 of this form clearly incorporates the pre-requisites specified in Section 68-C. So far as schemes relatable to Section 68-E(l) are concerned, the publication is made in Form 51 STUM. This form does not refer to any of the pre-conditions incorporated in Section 68-C. It only obligates the State Transport Undertaking to state that it has prepared the scheme in modification of the approved scheme and that it is published as required by Section 68-C read with Section 68-F of the Motor Vehicles Act.

When an Act is repealed and the repealing Act contains a savings clause, what should be the line of enquiry in the interpretation of the savings clause? The Supreme Court in State of Punjab v. Mehar Singh, AIR 1955 SC 84 laid down the proposition :

"The line of enquiry would be, not whether the new Act expressly keeps alive the old rights and liabilities but whether it manifests an intention to destroy them."

Section 217(2)(e) of the new Act specifically lays down that "any scheme made u/s 68-C of the Motor Vehicles Act, 1939" shall be disposed of in accordance with the provisions of Section 100 of the new Act notwithstanding the repeal of the Motor Vehicles Act, 1939. The crucial words are "any scheme made u/s 68-C". An existing scheme can be cancelled or modified u/s 68-E by following the procedure laid down in Sections 68-C and 68-D "so far as it can be made applicable". The procedural aspects governing Sections 68-C and 68-D as far as possible, must be complied with when power u/s 68-E is invoked. That will not change the nature of the power conferred u/s 68-E (1) into the one u/s 68-C. The procedural aspects cannot be approximated to substantive power. A scheme made u/s 68-C is altogether different from the one u/s 68-E. The factors to be taken into account for exercise of power u/s 68-C are absent for invocation of power u/s 68-E. Section 68-E comes into play for cancellation or modification of approved schemes. The approved schemes come into existence after the requirements of Section 68-C and 68-D are complied with.

There are very good reasons for the new Act to save the schemes made u/s 68-C of the old Act. If a scheme is not published as an approved scheme under Sub-section (3) of Section 100 in the Official Gazette within a period of one year from the date of publication of the proposal, Sub-section (4) of Section 100 lays down that the proposal shall lapse. Because of the limitation of time factor, and as the procedure involved is a time-consuming one, the new Act has expressly saved the schemes made u/s 68-C of the old Act. There are no such impediments as regards the matters falling within the ambit of Section 68-E of the old Act. Power is conferred on the State Government by Section 102 of the new Act to modify any approved scheme after giving an opportunity of being heard to the State Transport Undertaking or any person likely to be affected by the proposed modification or cancellation. There is no limitation of time factor for invoking power u/s 102. Because of the conferral of such power on the State Government, I am inclined to think that Parliament advisedly has not saved schemes relatable to Section 68-E while enacting the new Act.

I do not find any merit in the contention advanced by Shri D. Reddappa Reddy, learned counsel for the Andhra Pradesh State Road Transport Corporation, based on the difference in the language employed in Clause 218 (2) (d) of the Bill and Clause (e) of Section 217(2) of the new Act. Clause 218 (2) (d) of the Bill reads:

"218. (2) Notwithstanding the repeal of the Motor Vehicles Act, 1939 by this section,-

(a) to (c)-----------

(d) the scheme u/s 68-C of the Motor Vehicles Act, 1939, pending at the commencement of this Act shall be disposed of in accordance with Sub-section (4) of Section 100 of this Act and thereafter the provisions of Chapter VI of this Act shall apply;"

The words "the scheme u/s 68-C of the Motor Vehicles Act, 1939," are referrable to all the schemes u/s 68-C. The use of the definite article ''the'' has no special significance. In legislative parlance, singular includes plural. The words "the scheme" are, therefore, referrable to all the schemes u/s 68-C. From the use of the words "any scheme made u/s 68-C" in Section 217(2)(e), no intention can be inferred that the schemes relatable to Section 68-E also are covered.

When the language employed in Clause (e) of Section 217(2) is clear and explicit, it is not permissible to stretch its meaning by an indirect interpretative process so as to include matters not coverred by it. The resort to the intention of law-makers is permissible only in cases where there is patent ambiguity or where the words employed expressly lead to absurd situations. Neither is the case now. Section 217(2)(e) does not keep alive any schemes referrable to Section 68-E of the old Act. If the contention advanced by Shri Reddpapa Reddy that a proposal to modify an existing scheme (referrable to Section 68-E (1) is also a scheme u/s 68-C is to be accepted, it will lead to a very unrealistic and absurd situation of the approved scheme itself being extinguished. The existence of an approved scheme and invocation of power u/s 68-E do not go together.

For these reasons I hold that the matter referrable to Section 68-E are not saved by Section 217(2)(e) of the new Act. The draft schemes impugned in the writ petitions shall, therefore, be deemed to have lapsed. The writ petitions are allowed. No costs. Advocate''s fee Rs. 250/- in each.

In Writ Petition Nos. 2367, 2380, 3228, 3251 and 3362 of 1990, the following additional grounds are raised: (1) The classification of inter-State transport operators into those plying on the strength of inter-State agreements and those plying otherwise than under the inter-State agreements is bad; (2) The draft schemes published are invalid for the reason that the concurrence of the Government of Orissa has not been obtained; (3) Prior approval of the Central Government u/s 68-E has not been obtained; and (4) The Government is not competent in law to accord approval to imer-State routes. As I have allowed the writ petitions on other grounds, I am of the view that it is not necessary to adjudicate upon these questions and so they are left open.