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Hari Ram Sharma And Another v. Government Of U.P And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The State Transport Undertaking prepared a scheme under Section 68-C of the Motor Vehicles Act for the Aligarh–Tappal route and published it in the U.P. Gazette dated June 25, 1960. Objections to the proposal were filed and remained pending. On January 29, 1971 a representation was submitted to the U.P. Minister of Transport; a delegation of route operators also met the Minister and sent reminders. The Transport Minister purportedly decided on March 24, 1971 to denotify the route and informed (by letter dated March 25, 1971) a representative, Chandra Pal Singh, of that decision.
The State Government had appointed the Legal Remembrancer and Shri B.C. Saxena, Joint Legal Remembrancer, was the officer authorised to decide the pending objections. When the matter came before him, the operators argued that proceedings should be dropped because the route had been denotified by the Minister. The officer concluded that the Minister's decision was tentative/advisory and not binding because it was not expressed in the name of the Governor; he therefore rejected the operators' objections and fixed a date for their disposal. The petitioners challenged that order by filing the present writ petition and sought to restrain the officer from proceeding further.
Legal Issues Presented
- Whether the Transport Minister's order (dated March 24, 1971) could effectively denotify the route in the absence of a formal notification published "in like manner" as the original publication under Section 68‑C.
- Whether the Transport Minister's decision constituted an order under Section 68‑D(2) of the Motor Vehicles Act (i.e., a quasi‑judicial decision of the State Government) which could not be rescinded or reviewed.
- Whether the State Transport Undertaking is a statutory authority distinct from the State Government and, if so, whether the Transport Minister was authorised to act as the head of the Undertaking for purposes of denotification or deciding objections.
- Whether the petitioners had established that the Transport Minister was duly authorised by the State Government to dispose of objections under Section 68‑D(2) at the relevant time.
Arguments of the Parties
Petitioners' Arguments (as advanced in the opinion)
- The State Transport Undertaking is a department of the State Government and the Transport Minister, as its head, was fully competent to order denotification without a formal Gazette notification.
- The Minister's order was an order under Section 68‑D(2) and being quasi‑judicial in nature could not be rescinded by the State Government; there was no power of review to undo it.
- Reliance was placed on the decision in Mowasi v. State of U.P. (Air 1953 All 595) to support the contention that once the Minister had decided to withdraw a notification, the decision could not be subsequently departed from and need not itself be notified.
Respondent/State's Arguments (as advanced in the opinion)
- Once a scheme is published under Section 68‑C, withdrawal of the scheme must be done “in like manner” — i.e., by a further notification in the Official Gazette — and a mere order of the Transport Minister was insufficient to effect denotification.
- The Transport Minister could not pass the impugned order on behalf of the State Transport Undertaking because, under the statute, he was not the head of that Undertaking and was not authorised to dispose of objections under Section 68‑D(2).
- The power to cancel or modify an approved scheme is governed by the statutory provisions (including Section 68‑E after Section 68‑D(3)) and any rescission must satisfy the "in like manner" requirement derived from Section 21 of the General Clauses Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| H.C. Narayanappa v. State of Mysore, AIR 1960 SC 1073 | Recognition that by Chapter IV‑A a State Transport Undertaking is entitled, on approval of a scheme, to exclusive rights to carry on motor transport business. | The Court cited the decision to support the proposition that the statutory framework contemplates a distinct State Transport Undertaking with powers related to schemes affecting road transport. |
| Kalyan Singh v. State of Uttar Pradesh, AIR 1962 SC 1183 | Explanation that the State Transport Undertaking is a statutory authority distinct from the State Government; the Undertaking forms the requisite opinion under Section 68‑C and the State Government hears representatives under Section 68‑D(2). | The Court relied on this authority to hold that the State Transport Undertaking is a statutory authority exercising powers separately from the State Government and that the opinion required by Section 68‑C must be that of the State Government running the undertaking (or its duly authorised officers). |
| Mowasi v. State of Uttar Pradesh, AIR 1953 All 595 | Interpreted provisions (in the context of the Land Acquisition Act) to hold that a decision made final by statute under Section 5‑A could not be altered and subsequent notification could not rescind a final statutory decision. | The Court considered and distinguished this decision: it held that Mowasi was based on the specific language of Section 5‑A of the Land Acquisition Act and did not establish any general principle applicable to the present case under the Motor Vehicles Act. |
Court's Reasoning and Analysis
- The court began by analysing the statutory scheme: Section 68‑C empowers the State Transport Undertaking to prepare a scheme and requires publication in the Official Gazette; Section 68‑D provides for filing objections and empowers the State Government, after hearing objectors, to approve or modify the scheme; Section 68‑E applies once the scheme has been published under Section 68‑D(3).
- The court relied on binding Supreme Court authorities (H.C. Narayanappa and Kalyan Singh) to conclude that the State Transport Undertaking is a statutory authority distinct from the State Government, although the officers of the State Government may act on its behalf if duly authorised. The opinion emphasises the statutory distinction between the Undertaking and the State Government.
- The court applied the principle in Section 21 of the General Clauses Act: the power to frame a scheme carries with it an implied power to rescind it, but such rescission must be effected "in like manner." The original scheme was published by notification in the Gazette under Section 68‑C, so rescission similarly required a notification in the Gazette.
- Because no such Gazette notification rescinding the 1960 proposal had been issued, the court held that the Transport Minister's informal or ministerial order (not issued in the name of the Governor and not notified in the Gazette) did not have the legal effect of cancelling the scheme. The Minister’s purported decision was treated as tentative/advisory and insufficient to constitute cancellation.
- The court examined Mowasi (a Land Acquisition Act case) and distinguished it: Mowasi turned on the finality language of Section 5‑A of the Land Acquisition Act and therefore could not be read as creating a general rule applicable to denotification under the Motor Vehicles Act.
- The court further observed that the petition did not allege that no officer had been designated by the State Government to decide objections at the time of the Minister's purported decision; therefore, it was not shown that the Minister alone was authorised to decide objections under Section 68‑D(2). The petitioners bore the burden of showing that the Minister was authorised by the State Government to act in that capacity, and they failed to do so.
- The court also noted procedural fairness concerns: the petitioners had not pleaded the factual basis necessary to attack the officer's action on the ground of authorisation; raising such a mixed question of fact and law belatedly would prejudicially surprise the respondents. The court treated the contention that the Minister had acted under Section 68‑D(2) as an afterthought.
- On these statutory and procedural bases, the court concluded that the contentions of the petitioners failed and that the officer's rejection of objections and further proceedings were lawful.
Holding and Implications
Writ petition dismissed with costs.
Direct effect: The court upheld the officer's decision to reject the petitioners' contention that the Minister's decision had already denotified the route; because rescission had not been effected by a Gazette notification "in like manner," the Minister's order did not cancel the scheme, and the officer was entitled to proceed to dispose of the objections.
Broader implications: The court applied existing authorities (including Kalyan Singh and H.C. Narayanappa) and principles (including Section 21 of the General Clauses Act) to interpret the statutory scheme; the opinion distinguished the Mowasi decision as not establishing a general rule applicable to this statutory context. The opinion therefore resolves the dispute on statutory interpretation and fact‑specific grounds without introducing a new general proposition beyond the application of those authorities.
End of summary — based exclusively on the provided opinion.
1. The State Transport Undertaking in exercise of powers under Section 68-C of the Motor Vehicles Act (hereinafter referred to as the Act) published a scheme in the U.P Gazette dated June 25, 1960, in respect of the Aligarh-Tappal route. Objections were filed against the proposal. These objections remained pending and subsequently a representation was submitted to the Minister of Transport, U.P on 29-1-1971. It is said that a delegation of operators of the route contacted the Minister concerned personally in respect of this representation and subsequent thereto, reminders were also sent. The Minister concerned, seems to have passed an order on the 24th March, 1971 for denotification of the route. The Minister of Transport also sent a letter on the 25th March, 1971 to one Chandra Pal Singh who is Vice-President of the Union of Operators, intimating to him that he had decided that the route should be denotified, and that he would be informed in due course about this decision, by the Transport Department. The State Government had appointed the Legal Remembrancer. Shri B.C Saxena, Joint Legal Remembrancer has the authority to decide objections in respect of this route. The matter was taken up by him, and the operators raised the objections that in as much as the scheme had been directed to be denotified, the proceedings should be dropped. The Officer, however, did not accept this contention. He came to the conclusion that the decision taken by the then Transport Minister was only a tentative one, and, further that inasmuch as the order was not expressed in the name of the Governor, it did not have binding force. Taking the order as only advisory in nature, he rejected the objections of the petitioners, and fixed a date for disposal of the objections. The petitioners challenge this order as also pray for an order restraining the officer concerned from proceeding further in the matter.
2. Counsel for the petitioners has urged that the State Transport Undertaking is a Department of the Government, and the Transport Minister being the head of that Department was fully competent to pass an order for denotifying the route, and it was not necessary that the order should be expressed in the name of the Governor for it to become effective. It is also urged that the order of the Minister concerned was an order under Section 68-D (2), and being an order quasi-judicial in nature, the same could not be rescinded by any subsequent decision of the State Govt., for there was no power of review. Counsel for the State has urged that in reply the scheme is notified in the Official Gazette as required by Sec. 68-C, and assuming that the State Transport Undertaking could withdraw the scheme, it could be done only in a like manner i.e, by another notification, and a mere order of the Transport Minister was not sufficient to effect a denotification of the route. It is also urged that the Transport Minister could not pass the impugned order on behalf of the State Transport Undertaking, inasmuch as under the statute he was not the head of that Undertaking. It is also urged that the order in question was not passed by the State Government under Section 68-D (2) inasmuch as the Transport Minister was not a person authorised to dispose of the objections, and that being so the question of reviewing the order does not arise. The scheme is prepared by the State Transport Undertaking under Section 68-C of the Act. After the scheme is prepared, the scheme along with the necessary particulars is published in the official gazette. Section 68-D provides for objections being filed by persons affected by the scheme, and empowers the State Government, after giving an opportunity to the objectors, to approve or modify it. The scheme as approved or modified is then published in the official gazette and the same on its publication becomes final. The State Transport Undertaking, thereafter still has the power to cancel or modify the scheme as approved by the State Government. But, so far as the modification of the scheme is concerned, steps required under Sections 68-C and 68-D have to be gone through. These provisions are suggestive of the result that the Act maintains a distinction between the State Transport Undertaking, which is statutory entity, and the State Government. Can it be said, in these circumstances, that the order passed by the Transport Minister can in law be one passed by the State Transport-Undertaking? In the case of H.C Narayanappa v. State of Mysore, AIR 1960 SC 1073 their Lordships of the Supreme Court observed:
“By Chapter IV-A, the State Transport Undertaking which is either a department of the State or a corporation owned or controlled by the State on the approval of a scheme is entitled, consistently with the scheme, to exclusive right to carry on motor transport business.”
3. The question as to whether the State Transport Undertaking was a statutory entity or could be equated with the State Government, came up specially for consideration before their Lordships of the Supreme Court in the case of Kalyan Singh v. State of Uttar Pradesh, AIR 1962 SC 1183 wherein their Lordships referring to this aspect observed on page 1186:
“The effect of the said provisions, in so far as they are relevant to the present inquiry, may be stated thus: The State Transport Undertaking is an undertaking providing road transport service which is, carried on by the State or any other corporation or authority mentioned in Section 68-A. The definition creates a statutory authority distinct from authorities which run it. This is made clear by Section 68-C whereunder it is the State Transport Undertaking that will have to form the requisite opinion. This is further elucidated by the fact that under Section 68-C of the Act the State Transport Undertaking is required to publish the proposed scheme in the Official Gazette and in such other manner as the State Government may direct. This distinction between the two is further made clear by Section 68-D(2) whereunder the State Government has to hear the representatives of the State Transport Undertaking. Briefly stated, under the said provisions, a statutory authority called the State Transport Undertaking is created, it is authorised to initiate a scheme of nationalisation of road transport, the aggrieved parties are given opportunity to file objections thereto, and the State Government is empowered to hear both the parties and approve or modify the scheme, as the case may be.”
4. Their Lordships further observed on page 1187:
“A State Transport Undertaking means, inter alia an undertaking run by a State. The statutory authority created is an undertaking run by a State. The State can only run an undertaking through its officers; it may entrust the conduct of the transport service to a particular officer or to a department of the State; in either event, it is the State Government that runs the undertaking. The statutory authority namely, the State Transport Undertaking, has to form an opinion within the meaning of Section 68-C of the Act, and the opinion must necessarily be that of the State Government which runs it. If the State Government running an undertaking forms an opinion, it can legitimately be said that the statutory authority i.e, the State Transport Undertaking, has formed the opinion.”
5. In view of this decision of their Lordships of the Supreme Court, it has to be held that the State Transport Undertaking is a statutory authority and for the purpose of the Act exercises powers separately from the State Government. The officers of the State Government may act on its behalf in case they are duly authorised. Although it has been seriously disputed as to whether the Transport Minister was the head of the Transport Undertaking, we may assume, for the purpose of this case, that this is so. The question still remains as to whether the order passed by him would be effective unless it is notified. The power to frame a scheme carries with it impliedly the power to rescind the scheme. This would follow from Section 21 of the General Clauses Act. The contention made on behalf of the State, that the State Transport Undertaking does not have the power to withdraw the scheme once it is published under Section 68-C, inasmuch as the power of cancellation of modification has to be found only in Section 68-E of the Act, which can be exercised only after the objections of the State Government have been decided, does not appear to be correct. Section 68-E comes into play only when the scheme has been published under Section 68-D (3) and not earlier. The fact that the statute does not confer any express power on the State Transport Undertaking to withdraw the scheme earlier than when it is published under Section 68(3) is not suggestive of the result that the powers which the State Transport Undertaking has in view of the provisions of Section 21 of the General Clauses Act, do not exist. If the State Transport Undertaking has power to override the decision of the State Government by cancelling or modifying the scheme, even though the matter has become final under Section 68-D (3), it would be illogical to deny that power to the Undertaking before the objections have been disposed of under Section 68-E. But before such a power can be exercised, the requirements of Section 21 of the General Clauses Act, that it should be in a ‘like manner’, have to be fulfilled. The proposal for the scheme has to be published in the Gazette and the rescission of that proposal has to be made in a like manner i.e, by way of a notification. This has, admittedly, not been done and, as such, it cannot be said that the order of the Transport Minister had the effect of cancelling the scheme.
6. Counsel for the petitioners had, however, drawn my attention to a decision of this Court in the case of Mowasi v. State of Uttar Pradesh, AIR 1953 All 595 and has contended that once the Minister concerned had taken the decision to withdraw the notification, the same could not be departed from subsequently, and further that it was not necessary that the decision of the Minister concerned should be notified. It is now necessary to consider this decision. This case was one under the Land Acquisition Act. A preliminary notification had been issued under the Act. Objections were invited under Section 5-A of the Act. After the objections had been filed, the State Government considered the matter and after perusing all the relevant documents and the report of the Land Acquisition Officer allowed the objections and decided not to acquire the plots. A G.O was also issued by the State Government. Subsequently, the Land Acquisition Officer ordered the proceedings for acquisition to be dropped. Later, however, another G.O was issued cancelling the earlier one and, thereafter, the Land Acquisition Officer, acting on the basis of the sub-sequent order, re-started the proceedings. The Bench took the view that inasmuch as the decision under Section 5-A was, made by the statute to be final, that decision could not be altered and no notification under Section 6 could be made, for that would rescind the decision under Section 5-A which the Act made final. This decision is based upon the language employed in Section 5-A of the Land Acquisition Act and cannot assist the petitioners so far as the present case is concerned, and no general propositions, as the petitioner's counsel seeks to deduce from this case, emerged from this decision. The other contention raised on behalf of the petitioners is also without substance. No factual foundation at all has been made in the petition for this argument, and neither has a ground appropriate to this contention been taken. Before recourse to Section 68-D sub-clause (2) can be taken, it has to be seen as to whether the Minister for Transport was authorised to consider and decide the objections. Section 68-D sub-clause (2) contemplates a decision of the objections by the State Government, and State Government cannot be equated with the Minister for Transport.
7. It is nowhere stated in the petition that at the time the Transport Minister passed the order in favour of the petitioners, no officer had been designated to decide the objections by the State Government. In these circumstances, the possibility that the power may have, at the relevant point of time been delegated to some officer cannot be ruled out. Be that as it may, before the order of the Transport Minister could be taken to be that of the State Government, the petitioners had to show conclusively that the Transport Minister was authorised to decide the objections by the State Government. These considerations apart, in case the petitioners are permitted to take this ground, which involves a mixed question of fact and law, the respondents will be prejudiced, inasmuch as the facts necessary for such attack not having been taken in the petition and no such ground having been raised, the respondents had no opportunity of meeting such a contention. A fair reading of the petition further discloses that even the petitioners did not take the order of the Transport Minister to be one under Section 68-D (2), and the present argument seems to be afterthought. All the contentions raised on behalf of the petitioners therefore, fail.
8. The writ petition is accordingly dismissed with costs.
9. Petition dismissed.
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