R.M Lodha, J.— Delay condoned and leave granted in SLP (C) No. 820 of 2003. Leave also granted in SLP (C) No. 21707 of 2002. The applicants in the IAs for impleadment are allowed to intervene.
Introduction
2. Five writ petitions by various operators came to be filed before the High Court of Judicature of Allahabad questioning the Notification dated 15-4-2000 issued by the State of U.P rescinding the earlier Notification dated 16-4-1999 and for consequential reliefs. The Division Bench of the Allahabad High Court heard these writ petitions together and by a common judgment dated 23-4-2002 dismissed all the writ petitions. It is from this common judgment that these three appeals by special leave arise.
3. The brief facts in relation to these appeals may be set out first.
A. Appeal by Rasid Javed and others
4. The appellants in this appeal claim that they have been operators on Saharanpur-Karnal route (inter-State route) via Jandhera-Rampur-Gangoh-New Yamuna Bridge. In the Notification published on 16-4-1999 under Section 102(1) of the Motor Vehicles Act, 1988 (for short “the 1988 Act”), the State Government proposed to modify the scheme notified on 29-5-1993 by providing that permit-holders bearing Nos. 168/94, 169/94, 170/94, 171/94, 172/94, 173/94, 222/94, 233/94, 23/95, 24/95, 25/95, 739/89, 242/94, 764/90, 787/90, 772/90, 800/90 and 784/90 shall be allowed to operate their buses along with the Uttar Pradesh State Road Transport Corporation (Upsrtc) on Saharanpur-Karnal route (via Jandhera-Rampur-Gangoh-New Yamuna Bridge) provided that they get their permits countersigned by the State of Haryana for plying their buses in that State.
5. By the said notification, objections were invited from Upsrtc and the persons likely to be affected by the proposed modification and Shri Zamiruddin, Special Secretary and Additional Legal Remembrancer, Uttar Pradesh was appointed as Hearing Authority to hear and decide the objections that may be received. Pursuant to the said notification, objections were received and the Hearing Authority after hearing the affected parties held in its order dated 11-10-1999 that the proposed modification be approved i.e the private operators be allowed to ply their vehicles. According to the appellants, they are covered by the permits mentioned at Serial No. 1 [Column 4(c)(iii)] of the Schedule to the Notification dated 16-4-1999.
B. Appeal by Masood Ahmad and others
6. The appellants in this appeal claim to be permit-holders in respect of Saharanpur-Loni route via Shamli-Baghpat-Marginal Bandh Road-ISBT Delhi. According to them, they are covered by Serial No. 1 [Column 4(c)(i)] of the Schedule to the Notification dated 16-4-1999. By the said notification, the approved scheme dated 29-5-1993 was sought to be modified and it was proposed to allow these operators to operate their buses along with Upsrtc on Saharanpur-Loni via Shamli-Baraut-Baghpat-Marginal Bandh Road-ISBT Delhi route.
C. Appeal by Raghunandan Goyal and others
7. The appellants claim to have been granted inter-State permits by the State Transport Authority (STA), Uttar Pradesh for an inter-State route known as Meerut-Chandigarh via Baraut-Shamli-Gangoh-Saharanpur-Sarsawa-Yamuna Nagar-Ambala. Their case is that in the draft modification published in the Notification dated 16-4-1999, their permits are mentioned at Serial No. 1 [Column 4(c)(ii)] of the Schedule thereof. By the said modification, it was proposed to allow these operators to operate their buses along with Upsrtc on Meerut-Chandigarh via Baraut-Shamli-Gangoh-Saharanpur-Sarsawa-Yamuna Nagar-Ambala route provided that the permit-holders get their permits countersigned by the State Government of Haryana for plying their buses in that State.
Saharanpur-Delhi route (the 1959 Scheme) and previous litigation
8. On 26-2-1959, a draft scheme was published under Section 68-C of the Motor Vehicles Act, 1939 (“the 1939 Act”, for short) in respect of the inter-State route viz. Saharanpur-Delhi proposing to authorise the State Transport Undertaking (STU) of Uttar Pradesh to operate stage carriages on the said route to the exclusion of all other operators.
9. On 29-9-1959 the State Government approved the said draft scheme and published it under sub-section (3) of Section 68-D of the 1939 Act (hereinafter referred to as “the 1959 Scheme”). The 1959 Scheme provided 50 (25 each way) State Road Transport Services or more as may appear necessary from time to time on that route or portion thereof from 1-11-1959 or thereafter. It was provided in the approved scheme that the persons other than STU will not be permitted in plying any road transport service on the said route or portion thereof except as mentioned therein.
10. A group of writ petitions, one by 32 operators and the other by 18 operators was filed before the High Court of Allahabad questioning the validity of the 1959 Scheme. The High Court vide its judgment dated 30-10-1961 directed the State Government not to enforce the 1959 Scheme against 32 operators who had filed the first batch of writ petitions and it was directed that the State Government should hold a fresh enquiry into the question whether the scheme should be approved or not. Similar judgment was passed in the other batch of writ petitions relating to 18 operators on 7-2-1962.
11. The aforesaid judgments of the Allahabad High Court were affirmed by this Court in Jeewan Nath Wahal v. State of U.P In Jeewan Nath Wahal it was held that the 1959 Scheme was operative and not affected and its enforcement was prohibited against 50 operators only who approached the High Court. It was further held that the STU has the exclusive right to ply its vehicles on the notified route (Saharanpur-Delhi route).
12. Two writ petitions, one by Shri Chand and the other by the Citizen Council for Public Service were directly filed before this Court under Article 32 of the Constitution in the year 1985 challenging the validity of proceedings which were pending before the State Government pursuant to a draft scheme published on 26-2-1959. This Court allowed these writ petitions on 23-8-1985 (1985) 4 SCC 169 by the following order:
“2. … In the instant case the delay is in the order of 26 years. In view of the above decisions we allow these writ petitions and quash the impugned scheme published on 26-2-1959 and the proceedings which have taken place till now pursuant thereto and direct the State Government not to proceed with the hearing of the matter. It is now open to the State transport undertaking of Uttar Pradesh to publish a fresh draft scheme under Section 68-C of the Act if it is of opinion that it is necessary to do so. We, however, permit the State transport undertaking to run the stage carriage vehicles which it is now running on the route in question under permits issued pursuant to the scheme which is now quashed, till 28-2-1986 or till they are replaced by temporary permits to be issued under sub-section (1-A) of Section 68-F of the Act after the publication of a fresh draft scheme or by permits issued under Chapter IV of the Act, whichever is earlier.”
13. Pursuant to the aforesaid decision in Shri Chand case (1985) 4 SCC 169, Upsrtc published a draft scheme on 13-2-1986 for 39 routes; Saharanpur-Delhi (Saharanpur-Nanauta-Thanabhawan-Shamlikandhla-Baraut-Baghpat-Loni-Delhi) being the first item in the draft scheme.
The 1988 Act and matters before this Court in respect of Saharanpur-Delhi route
14. While the said draft scheme was pending, the 1939 Act was repealed and the 1988 Act came into force with effect from 1-7-1989. It appears that immediately after the 1988 Act came into force, two things happened viz. (one) some operators were granted permits for Saharanpur to Ghaziabad via Shahdara route and (two) the Hearing Authority held that the draft scheme published on 13-2-1986 by Upsrtc under the 1939 Act had lapsed by operation of Section 100(4) of the 1988 Act.
15. Ram Krishna Verma and few others filed writ petitions in the High Court of Allahabad challenging the grant of permits for Saharanpur to Ghaziabad via Shahdara route while Upsrtc challenged the order of the Hearing Authority by a separate writ petition. The writ petition filed by Upsrtc was dismissed by the Allahabad High Court on 16-3-1990. The writ petitions filed by Ram Krishna Verma and others were also dismissed by the Allahabad High Court on 23-7-1990. Special leave petitions were filed against the aforesaid judgments before this Court in which leave was granted.
16. These appeals (Ram Krishna Verma v. State of U.P (1992) 2 SCC 620) were allowed vide judgment dated 31-3-1992. This Court held that the nationalisation of Saharanpur-Delhi route by the 1959 Scheme is operative to the total exclusion of every operator except Upsrtc and the 50 operators whose objections were upheld by the High Court. In the operative order, this Court quashed the permits granted to the private operators under Section 80 of the 1988 Act on the respective routes, parts or portions of the nationalised routes of 13-2-1986 draft scheme.
17. After the decision of this Court in Ram Krishna Verma (1992) 2 SCC 620 the competent authority approved the Scheme and directed the same to be published. On 29-5-1993, the approved scheme (for short “the 1993 Scheme”) was published in the Gazette. At Serial No. 1 of the 1993 Scheme is Saharanpur-Delhi route.
18. The controversy with regard to the extent and effect of the draft scheme dated 13-2-1986 and the 1993 Scheme vis-à-vis the 1959 Scheme relating to Saharanpur-Delhi notified route reached this Court on more than one occasion. We have noticed some of these decisions in the earlier part of the judgment and shall consider this aspect further a little later. Suffice it to state here that the 1993 Scheme came to be published pursuant to the decision of this Court in Ram Krishna Verma (1992) 2 SCC 620.
Present controversy
19. By a Notification published on 16-4-1999, the State Government, in exercise of the powers under sub-section (1) of Section 102 of the 1988 Act proposed to make modification in the 1993 Scheme to the extent mentioned in Column 4 of the Schedule appended thereto. In respect of Saharanpur-Delhi route modification proposed was as follows:
“Sl. No.
Notification number and date by which the routes were notified
Name of the notified route in which the modification is proposed
Modification proposed
1.
2.
3.
4.
1.
No. 1635/30-2-1993 565'85 dated 29-5-1993
Saharanpur-Delhi and 38 other routes
In the said Scheme after Clause (b) the following clause shall be inserted, namely:
(c) Notwithstanding anything contained in clauses (a) and (b) the private bus operators:
(i) holding permit numbers PSTP/MPMV 1/89, 2/89, 3/89, 4/89, 5/89, 6/89, 7/89, 8/89, 9/89, 10/89, 11/89, 12/89, 13/89, 14/89, 16/89, 17/89, 18/89, 19/89, shall be allowed to operate their buses along with Upsrtc on the route, namely, Saharanpur-Loni via Shamali-Baraut-Baghpat-Marginal Bandh Road-ISBT Delhi.
(ii) holding permit numbers PSRTP 303/89, PSTP 304/89 and PSTP 305/89, shall be allowed to operate their buses along with Upsrtc on the route, namely, Meerut-Chandigarh via Baraut-Shamli-Gangoh-Saharanpur-Sarsawa-Yamuna-Ambala; and
(iii) holding permit numbers 168/94, 169/94, 170/94, 171/94, 172/94, 173/94, 222/94, 233/94, 23/95, 24/95, 25/95, 739/89, 242/94, 764/90, 787/90, 772/90, 800/90, 784/90, shall be allowed to operate their buses along with Upsrtc on the route, namely, Saharanpur-Karnal via Jandhera-Rampur-Gangoh-New Yamuna Bridge:
Provided that the permit-holders under sub-clauses (ii) and (iii) above shall get their permits countersigned by the State Government of Haryana for plying their buses in the State of Haryana.”
20. The notification provided that Upsrtc and any other person likely to be affected by the proposed modification may make representations within 30 days from the date of publication of the notification in the Gazette and that the representations so received will be heard by the Hearing Authority, Shri Zamiruddin, Special Secretary and Additional Legal Remembrancer, Uttar Pradesh.
21. In pursuance thereof various representations were received. The Hearing Authority after hearing the parties concerned who made the representations passed an order on 11-10-1999 approving the notified proposed modification and the objections presented by Upsrtc and other objectors were dismissed. The State Government, however, by a Notification dated 15-4-2000 in exercise of the powers under Section 102 of the 1988 Act read with Section 21 of the General Clauses Act, 1897 rescinded the Notification dated 16-4-1999.
Main submissions of the parties
22. Mr Dinesh Dwivedi, learned Senior Counsel led the arguments on behalf of the appellants. He argued that it was not open to the State Government to withdraw the Notification dated 16-4-1999 after it had been approved by the Hearing Authority by its Order dated 11-10-1999. According to him, the order passed by the Hearing Authority on 11-10-1999 is the order of the State Government under Sections 102(1) and (2) of the 1988 Act. It is so because in the draft Notification dated 16-4-1999, Shri Zamiruddin, Special Secretary and Additional Legal Remembrancer was appointed as the authority to hear the objections and he was acting as the State Government under the U.P Rules of Allocation of Business. In this regard, the learned Senior Counsel placed reliance on three decisions of this Court viz. Samsher Singh v. State of Punjab (1974) 2 SCC 831, Capital Multi-purpose Coop. Societies v. State of M.P AIR 1967 SC 1815, (1967) 3 SCR 329 and A. Sanjeevi Naidu v. State of Madras (1970) 1 SCC 443.
23. Mr Dinesh Dwivedi also submitted that decision under Section 102(1) of the 1988 Act has to be by the same authority who heard the objections and there could not be divided responsibility of a quasi-judicial act. He sought support from a decision of this Court in Gullapalli Nageswara Rao v. A.P SRTC AIR 1959 SC 308. He further argued that once the decision has been taken by the competent authority then the State Government cannot modify that decision because it is a quasi-judicial decision. He placed reliance on Nehru Motor Transport Coop. Society Ltd. v. State of Rajasthan AIR 1963 SC 1098. In the alternative, the learned Senior Counsel submitted that even otherwise the material on record demonstrated that the order of modification dated 11-10-1999 was approved by the Principal Secretary of the Department.
24. Mr Dinesh Dwivedi, learned Senior Counsel would also contend that approval order passed under Sections 102(1) and (2) was not required to be published in the Official Gazette. He invited our attention to Section 68-E of the 1939 Act and Sections 100(3) and 102 of the 1988 Act to indicate the difference in the two provisions. He further submitted that Section 21 of the General Clauses Act, 1897 is not at all attracted as the power that was sought to be exercised has been expressly provided in Section 102 of the 1988 Act.
25. While dealing with the effect of the draft proposal dated 16-4-1999 and whether the 1993 Scheme superseded the 1959 Scheme, Mr Dinesh Dwivedi submitted that there could not be operation of two notified schemes in respect of Saharanpur-Delhi route and consequently the judgment of this Court in Ram Krishna Verma (1992) 2 SCC 620 has to be read in the light of the provisions of law and not in contravention of the provisions of law. The learned Senior Counsel submitted that the 1959 Scheme has been superseded by the 1993 Scheme and that is what the State Government also understood.
26. Mr Dwivedi also assailed the judgment of the High Court and submitted that the writ petitions have been dismissed on the grounds contrary to law. The learned Senior Counsel submitted that the appellants have been granted permits validly in the year 1989 which have been renewed in the year 1994 and the High Court overlooked the fact that revocation of permits by virtue of the decision of this Court in Ram Krishna Verma (1992) 2 SCC 620 implied only revocation to the extent of only overlapping portion of Delhi-Saharanpur route. He, thus, submitted that the appellants' permits are valid as far as the non-notified portion is concerned.
27. Mr Nagendra Rai, learned Senior Counsel appearing for the appellants in Civil Appeal No. 5951 of 2002 adopted the arguments of Mr Dinesh Dwivedi and submitted that the 1959 Scheme stood modified by the 1993 Scheme published on 29-5-1993 and that for the same route, there could not be two approved schemes. He submitted that the approval order dated 11-10-1999 by the Hearing Authority is not passed by virtue of any delegation of power nor any right of appeal is available against the said order and as such the order dated 11-10-1999 is a final order of the State Government in terms of Section 102 of the 1988 Act and required no publication in the Official Gazette.
28. Mr P.N Gupta, learned counsel while adopting the arguments of Mr Dinesh Dwivedi and Mr Nagendra Rai contended that once the final order of approval was passed on 11-10-1999, the proposal for modification as provided in the Notification dated 16-4-1999 could not have been cancelled or rescinded as the draft Notification dated 16-4-1999 merged in the final order dated 11-10-1999. According to him, the proposal for modification of the approved scheme under Section 102 of the 1988 Act and its approval by the State Government are not legislative in nature and consequently Section 21 of the General Clauses Act, 1897 has no application. The learned counsel would submit that even if it be assumed that the impugned notification amounts to modify the approved scheme and Section 21 of the General Clauses Act has application, in that event the impugned Notification dated 15-4-2000 is vitiated because it has to be issued in the same manner as provided under Section 102 of the 1988 Act which was not done. He also contended that once the modification was approved as per the order dated 11-10-1999, the valuable rights accrued in favour of the appellants and that could not be taken away except after giving an opportunity of hearing and on this ground also the impugned Notification dated 15-4-2000 is bad in law.
29. Mr Ratnakar Dash, learned Senior Counsel for the State of U.P and Ms Garima Prashad, learned counsel for Upsrtc supported the impugned judgment. The thrust of their submission is that both approved schemes, namely, the 1959 Scheme and the 1993 Scheme are effective and in operation to make the Saharanpur-Delhi route fully nationalised for the exclusive operation by the STU and no private operator can operate on this route and, therefore, the notified route viz. (Saharanpur-Delhi route) could not have been modified without modifying the 1959 Scheme.
30. The learned Senior Counsel for the State as well as counsel for Upsrtc contended that the order of the Hearing Authority after hearing the objections of the affected parties is a quasi-judicial order and is not the final order of the State Government. They contended that it was open to the State Government to modify the order of the Hearing Authority before publication of the modified scheme. Reliance in this connection was placed upon a decision of this Court in Afsar Jahan Begum v. State of M.P (1996) 8 SCC 38
31. The learned counsel for Upsrtc also contended that the appellants did not have permits on the route in question either in 1959 or 1986 or even in 1993 and that the permits given to the private operators under the draft scheme of 1986 as well as under the 1993 Scheme have been quashed by the Allahabad High Court and that the appellants have no permits at all. She submitted that a total of 124 permits have been granted to Upsrtc on Saharanpur-Delhi route which are valid till the Scheme remains in force and that Upsrtc has been plying exclusively on the Saharanpur-Delhi route and there is no operation by the private operators.
32. The learned counsel for Upsrtc placed reliance upon the decisions of this Court in Mysore SRTC v. Mysore STAT (1974) 2 SCC 750, C.P.C Motor Service v. State of Mysore AIR 1966 SC 1661, Adarsh Travels Bus Service v. State of U.P (1985) 4 SCC 557 and Karnataka SRTC v. Ashrafulla Khan (2002) 2 SCC 560 and submitted that no private bus can be allowed to overlap fully or partially on a nationalised route if there is no mention of that in the scheme of nationalisation of the said route itself.
The issue
33. In the light of the contentions outlined above, the core question that falls for consideration is: whether the Notification dated 15-4-2000 is invalid and vitiated by any legal flaw?
34. Insofar as the factual aspect is concerned, it does not seem to be in dispute that the permits granted to the appellants related to routes which overlapped the Delhi-Saharanpur notified route.
Our appraisal
(A) The effect of publication of a scheme under Section 68-D
35. The expression “route” is defined in Section 2(28-A) of the 1939 Act as follows:
“2. (28-A) ‘route’ means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another;”
36. Chapter IV-A of the 1939 Act makes special provisions relating to the STUs. Particularly, Section 68-C provides for preparation and publication of the scheme of road transport service by an STU. The objections to the draft scheme published under Section 68-C may be filed under Section 68-D. Sub-section (2) of Section 68-D provides that the State Government after considering the objections and hearing the objectors and the STU may approve or modify the scheme. Sub-section (3) of Section 68-D provides that the scheme as approved or modified under sub-section (2) shall be published in the Official Gazette by the State Government and the same shall then become final and called “approved scheme”. Once the scheme has been published under sub-section (3) of Section 68-D, Section 68-FF imposes restriction on grant of permits in respect of notified area or notified route.
37. From these provisions, it is apparent that once a scheme is published under Section 68-D in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other persons or otherwise, no person other than the STU may operate on the notified area or notified route except as provided in the scheme itself. In Adarsh Travels Bus Service (1985) 4 SCC 557 this Court held that:
“7. … A necessary consequence of these provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself.”
38. A definite legal position has been crystallised by this Court in Mysore SRTC (1974) 2 SCC 750 that any route or area either wholly or partly can be taken over by a State undertaking under any scheme published, approved and notified under the provisions of Chapter IV-A of the 1939 Act and that if the scheme prohibits private transport operators to operate on the notified area or route or any portion thereof, the Regional Transport Authority (RTA) cannot either renew the permit of such private operators or give any fresh permit in respect of a route which overlaps the notified route.
39. That the scheme framed under Section 68-C of the 1939 Act is a law is settled by a Constitution Bench decision of this Court in H.C Narayanappa v. State of Mysore AIR 1960 SC 1073, (1960) 3 SCR 742. This position has been reiterated by this Court in Ram Krishna Verma (1992) 2 SCC 620. H.C Narayanappa AIR 1960 SC 1073, (1960) 3 SCR 742 also holds that the scheme framed under Section 68-C of the 1939 Act excludes the private operators from notified routes or areas.
(B) The status of the appellants' permits
40. Insofar as Saharanpur-Delhi route is concerned, it became a notified route under the 1959 Scheme. The controversy regarding the 1959 Scheme reached this Court initially in Jeewan Nath Wahal case wherein a three-Judge Bench of this Court upholding the order of the High Court held in unambiguous terms that the Saharanpur-Delhi route approved in the 1959 Scheme stood nationalised to the complete exclusion of private operators except the 50 operators against whom it was held not to be operative till their objections are heard and decided by the Hearing Authority.
41. The decision of this Court in Shri Chand (1985) 4 SCC 169 has been explained in subsequent decision in Ram Krishna Verma (1992) 2 SCC 620 by holding that nationalisation of Saharanpur-Delhi route in the 1959 Scheme cannot be said to have been quashed in Shri Chand (1985) 4 SCC 169 except to the extent of 50 operators and in any case the decision of a Bench of two-Judges in Shri Chand (1985) 4 SCC 169 cannot have the effect of overruling the decision of a Bench of three-Judges in Jeewan Nath Wahal. This Court further held in Ram Krishna Verma (1992) 2 SCC 620 that the fresh draft scheme published on 13-2-1986 must be construed to be in relation to the 50 existing operators only.
42. The same position was reiterated by this Court in Nisar Ahmad v. State of U.P 1994 Supp (3) SCC 460 and Gajraj Singh v. State of U.P (2001) 5 SCC 762 In Gajraj Singh (2001) 5 SCC 762 it was clearly stated that insofar as the Saharanpur-Delhi route is concerned, it shall be deemed to have been approved and maintained in terms of this Court's decision in Ram Krishna Verma (1992) 2 SCC 620.
43. In the light of these decisions of this Court, there is no scope of any doubt that Saharanpur-Delhi route on its nationalisation stood frozen under the 1959 Scheme against everyone except the 50 operators. The draft scheme published on 13-2-1986 was confined to those 50 operators alone and not to other private operators. By the 1993 Scheme, Saharanpur-Delhi route stood frozen against those 50 operators as well. The effect of these two Schemes (the 1959 Scheme and the 1993 Scheme), thus, has been that the entire Saharanpur-Delhi route became fully nationalised for the exclusive operation by the STU i.e Upsrtc and no private operator could operate on the said route.
44*. As a matter of fact, consequent upon the decision of this Court in Ram Krishna Verma (1992) 2 SCC 620 and the settled legal position that RTA cannot either renew the permit of such private operators or give any fresh permit in respect of a route which overlaps the notified route, the appellants' permits stood cancelled and in any case these permits lost their legal significance and sanctity. In this backdrop, the whole exercise undertaken by the State Government under sub-section (1) of Section 102 of the 1988 Act proposing to modify the 1993 Scheme relating to Saharanpur-Delhi notified route was misconceived as the permits specified in that notification did not exist in law. The finding of the High Court in the circumstances that the modification proposal dated 16-4-1999 proceeded on the misconception that the petitioners (the appellants herein) were holding permits on the route concerned cannot be said to be unjustified.
45. Moreover, in the absence of any proposal to modify the 1959 Scheme, the modification proposed in the 1993 Scheme vide Notification dated 16-4-1999 was meaningless. The contention that the 1959 Scheme merged in the 1993 Scheme has no merit. It is true that the 1959 Scheme was approved under the 1939 Act and even after repeal of the 1939 Act by the 1988 Act, the State Government was competent to prepare a fresh scheme by following the procedure contemplated in Sections 99 and 100 or modify that Scheme under Section 102 of the 1988 Act but the proposed modification published in the Notification on 16-4-1999 does not seek to modify the 1959 Scheme at all. Since the Notification dated 16-4-1999 is, ex facie, misconceived and meaningless as regards the Saharanpur-Delhi route, the proceedings taken pursuant thereto by the Hearing Authority and its decision dated 11-10-1999 also have no legal effect.
(C) Section 102 of the 1988 Act and the extent of authority to the Hearing Authority
46. Chapter VI of the 1988 Act contains special provisions relating to the STUs. Section 99 thereof makes a provision for preparation and publication of proposal by the State Government regarding road transport service of an STU. As per sub-section (1) of Section 100, on the publication of such proposal, the objections may be filed before the State Government within 30 days therefrom. Sub-section (2) of Section 100 provides that the State Government may approve or modify such proposal after hearing the objectors and the representatives of the STU. Sub-section (3) of Section 100 makes a provision that the scheme relating to the proposal as approved or modified under sub-section (2) shall be published in the Official Gazette and in at least one newspaper in the regional language circulating in the area or route covered by such scheme. On publication of the said scheme in the Official Gazette, it becomes final.
47. Section 102 of the 1988 Act empowers the State Government to modify the approved scheme in the public interest. Since the controversy relates to this section, it is appropriate that we reproduce Section 102 of the 1988 Act as it is. The said section reads thus:
“102. Cancellation or modification of scheme.—(1) The State Government may, at any time, if it considers necessary, in the public interest so to do, modify any approved scheme 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.
(2) The State Government shall publish any modification proposed under sub-section (1) in the Official Gazette and in one of the newspapers in the regional languages circulating in the area in which it is proposed to be covered by such modification, together with the date, not being less than thirty days from such publication in the Official Gazette, and the time and place at which any representation received in this behalf will be heard by the State Government.”
48. A close look at Section 102 would make it manifestly clear that modification of the approved scheme may be done by the State Government in the public interest after giving opportunity of being heard in respect of the proposed modification to the STU and the persons likely to be affected by the proposed modification. The modification proposed is required to be published in the Official Gazette and in one of the newspapers in the regional languages circulating in the area concerned under Section 102(2).
49. On behalf of the appellants, it was contended that in the proposed modification published in the Official Gazette on 16-4-1999, the authority to hear the objections/representations was given to Shri Zamiruddin, Special Secretary and Additional Legal Remembrancer and the said Hearing Authority after hearing the objections of the affected persons and Upsrtc approved the proposed modification and rejected the objections received in this regard and the approval by the Hearing Authority of the proposed modification by his order dated 11-10-1999 is the approval of the State Government.
50. Is the order dated 11-10-1999 of the Hearing Authority approving the proposed modification published in the Official Gazette dated 16-4-1999, an order of the State Government modifying the approved Scheme of 1993 under Section 102(1) of the 1988 Act? The answer has to be in the negative because Shri Zamiruddin was given authority to hear the representations received by the State Government to the proposed modification but no authority was given to him to approve the proposed modification or modify the approved scheme. The Notification dated 16-4-1999 does not empower the Hearing Authority to approve or modify the scheme; he has only been empowered to hear the objections.
51. That a person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted. This settled principle has also been highlighted by this Court in Gullapalli Nageswara Rao AIR 1959 SC 308 but based on such principle the limited authority of hearing given to the Hearing Authority by the State Government cannot be treated as enlarged in its scope. A delegatee must confine his activity within four corners of the powers invested in him and if he has acted beyond that, his action cannot have any legal sanction unless ratified by the delegator.
52. A distinction must be maintained where the Hearing Authority is empowered by the State Government to hear objections and approve the proposed modification or modify the approved scheme and a case where the Hearing Authority is authorised to hear the objections/representations relating to the proposed modification to the approved scheme. In the latter case, the authority delegated to the Hearing Authority is limited and he is not authorised to approve the proposed modification or modify the approved scheme. The present case falls in the latter category and accordingly the order of the Hearing Authority dated 11-10-1999 is in excess of the authority given to him and cannot be construed as a final order of approval under Section 102(1) of the 1988 Act. Whether such limited authority of hearing to the Hearing Authority makes any legal sense is an aspect for consideration by the State Government. Suffice it, however, to say that it was not open for the Hearing Authority to approve the proposed modification or modify the proposed scheme.
(D) Invocation of Section 21 of the General Clauses Act: whether valid
53. Having already held that the order of the Hearing Authority dated 11-10-1999 is in excess of the authority given to him and that the said order has no legal effect, we do not find that there was any impediment for the State Government in exercising its power under Section 102 of the 1988 Act read with Section 21 of the General Clauses Act, 1897 to rescind the Notification dated 16-4-1999.
54. Section 21 of the General Clauses Act, 1897 provides thus:
“21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.—Where, by any Central Act or regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.”
55. The aforesaid provision came up for consideration before the Constitution Bench of this Court in Kamla Prasad Khetan v. Union of India AIR 1957 SC 676 way back in 1957. The majority opinion stated: (AIR p. 685, para 19)
“19. … It is to be remembered that Section 21 of the General Clauses Act embodies a rule of construction, and that rule must have reference to the context and subject-matter of the particular statute to which it is being applied;”
56. It seems to be fairly settled that under Section 21 of the General Clauses Act, an authority which has the power to issue a notification has the undoubted power to rescind or modify the notification in the like manner. In the instant case, there is no doubt that the Notification dated 15-4-2000 has been made in the same manner as the earlier Notification dated 16-4-1999. Since the order of the Hearing Authority dated 11-10-1999 is not an order of approval under Section 102(1) of the 1988 Act and cannot be treated as such, the power of the State Government to rescind the Notification dated 16-4-1999 did not get exhausted. The argument that the draft Notification dated 16-4-1999 merged in the order dated 11-10-1999 is fallacious and devoid of any substance.
57. Mr Dinesh Dwivedi, learned Senior Counsel urged on behalf of the appellants that even otherwise the material on record demonstrated that the order of the modification dated 11-10-1999 was approved by the Principal Secretary of the Department and, thus, there was an approval by the State Government.
58. We are unable to accept this submission. In the first place, except the decision of the Hearing Authority dated 11-10-1999 there is nothing on record to conclude that the State Government had approved the proposed modification as notified on 16-4-1999. Secondly, even if we assume that an executive action not expressed to be made in the name of the Governor as contemplated under Article 166(1) of the Constitution may not vitiate such action as nullity and as held by this Court in Dattatraya Moreshwar Pangarkar v. State of Bombay AIR 1952 SC 181, 1952 Cri LJ 955, (1952) 1 SCR 612 the non-compliance with the provisions of either of the clauses of Article 166 would lead to the result that the order in question would lose the protection which it would otherwise enjoy had the proper mode for expression and authentication been adopted, but then there has to be some formal order by the State Government under Section 102(1) of the 1988 Act. Moreover, there is nothing on record even to indicate that the order dated 11-10-1999 of the Hearing Authority was communicated to the appellants or any of the affected parties. For all these reasons, the only conclusion that can be drawn is that the order dated 11-10-1999 is not an order as contemplated under Section 102(1) of the 1988 Act by the State Government approving the modification proposed in the Notification dated 16-4-1999.
59. In view of our finding that the order of the Hearing Authority dated 11-10-1999 cannot be treated as an order of the State Government under Section 102(1) of the 1988 Act, it is not necessary to consider the question as to whether the order of the State Government under Section 102(1) of the 1988 Act is required to be published in the Official Gazette or not.
60. The contention of Mr P.N Gupta, learned counsel for some of the appellants that the opportunity of hearing was required to be given to the appellants before issuance of the Notification dated 15-4-2000 has no merit for more than one reason. For one, this contention is founded on the premise that the order of the Hearing Authority dated 11-10-1999 is the order of the State Government. Secondly, what Section 21 of the General Clauses Act requires is that the authority empowered to issue notification must exercise its power to rescind such notification in the like manner. We have already noticed in the preceding discussion that the Notification dated 15-4-2000 has been made in the same manner as the earlier Notification dated 16-4-1999.
Conclusion
61. For the reasons given above, we hold that the Notification dated 15-4-2000 is valid and does not suffer from any legal flaw and, accordingly, dismiss these appeals with no order as to costs. Interlocutory applications for impleadment stand disposed of, as indicated above.