Judgment:
ORDER
1. in the years 1977and 1978, the A.P. State Road Transport Corporation (for short-'APSRT'C') published draft proposals under Section 68C of the Motor Vehicles Act, 1939, proposing the Nationalisation of almost all the routes of Nellore and Prakasam Districts. Although the draft scheme were published more than nine years back. they not finally disposed of by the State Government under Section 68D of the Motor Vehicles Act hereinafter referred to as 'the Act'). As a result, these draft proposals have been continuing to remain as draft proposals only. While they remain as draft proposals, objections and representations have been filed by the Public and the existing transport operators. But the Government did not consider those objections and as a result, they neither modified nor approved the draft proposals. To the above deplorable situation, the directions issued by this court to call for fresh representations made no difference. In a batch of writ petitions, which were disposed of by the Supreme Court on 11-10-1985, the pucca permit holders had complained to the Supreme Court that these draft proposals ,have grown stale and irrelevant by the lapse of time and that they should be quashed. The Supreme Court, by its order dated. 11-16 1985, had dismissed that batch of writ petitions observing that, by reason of the withdrawal of the draft schemes on 7th August, 1985, no relief in those writ petitions could be granted by the Supreme Court Accordingly those writ petitions have been dismissed on the ground that they have became infructuous. In Civil Appeal Nos. 4230 and 4231 of 1985, the Supreme Court, has quashed draft scheme No. 402 of 1977, by its order dated. 20th September, 1985, on the ground that it has become invalid by lapse of time. While doing so, the Supreme Court observed in the above Civil Appeals that the Transport Undertaking of the State of Andhra Pradesh will have to be at liberty to publish if it is so advised a fresh draft scheme under Section 68C of the Act. The off shoot of all these events is the withdrawal of all the draft schemes relating to Nellore and Prakasam districts by the A..P.S.R.T.C. by a notification dated 7-8- 1986. On 22nd August, 1986, the APSRTC published fresh draft schemes relating to these two districts which were prepared on 14th August, 1986. As a consequence, the existing draft schemes of Nellore and Praksam Districts have been superseded and fresh draft schemes have been published by he APSRTC. In this batch of writ petitions, it is the validity of the notification of the KPSRTC dated 7th August, 1986, withdrawing the old draft schemes and also the validity of the new draft schemes dated 14th August, 1986, published by the APSRTC on 22nd August, 1986 that is challenges
2. It is not really necessary to reiterate what has been said so often in these courts about Chapter IV-A of the Act, which is enacted by the Parliament in order to explore the operation of Chapter IV of the Act under which the private operators are free to obtain transport permits on a footing of equality with all others including the State Transport Undertaking (for short 'STU'). The purpose of Chapter IV-A is to enable the STU to run on a, monopoly basis the transport vehicles on the routes which have been notified by them and approved by the State Government. Section 68C says,
'Where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services 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....'
Such a scheme should be published in the Gazette and in the local newspapers. The class of persons referred to in Section 68D may file their objections to this scheme if they are so advised. The State Government, after considering the objections and hearing those objectors and the representatives of the State Transport Undertaking, approves or modifies the scheme or even scraps it Once the scheme is approved as only proposed or in its modified form, it is the STU that will be clothed with the financial administrative and legal powers to run the business on the notified routes. But, before the draft schemes are considered and approved by the State Government, there is Section 68F (1-C) under which the private operators can run on a temporary basis for transport vehicles till the schemes are approved or modified or cancelled. It is in compliance with the requirement of Section SF (1 -C) that those operators have obtained temporary permits and have been running their vehicles. In view of the fact that Section SF (I-C) under which the petitioners in this batch of writ petitions have obtained the temporary says that the temporary permits should be valid only during the currency of he draft schemes, the temporary permits which they have obtained have become invalid by reason of the withdrawal of the draft schemes on 7th August, 1986. The petitioners say that by reason of the able, provision of law, about 250 temporary permits have been rendered inoperative. They have, therefore, filed these writ Petitions challenging the above-mentioned two notifications, viz., the first notification Withdrawing the old draft schemes and secondly the publication of the new draft Schemes.
3. Learned counsel have argued the following questions of law. The STU had no power to withdraw these draft schemes without the leave of the Government or the Supreme Court because the matter was sub judice on 7th August, 1986. I must frankly confess my great inability to follow this submission of the learned counsel. I consider this submission is utterly devoid of any legal substance. In a polity run by law, each organ has its responsibilities and duties and powers and functions. Merely because a matter is pending before the Supreme Court,, it does not automatically follow that nothing can be done about that matter by anybody. The question whether any liberty is retained by the parties to exercise their statutory power and perform their normal functions and duties is a question which must be decided on the basis, of the statute and not by according disproportionately enhanced importance to one question over the other. The fact that this matter has been pending before the Government, in my opinion, is of least importance for considering the question whether the STU has or has not the power to withdraw these schemes. The analogy of the Code of Civil Procedure based on the right of the parties to withdraw their cases, does not appear to me to be apposite at all. Nobody has suggested that the Code of Civil Procedure is a universal Code of Procedure that would apply or should apply for settlement of all the disputes under the sun. In any case, that Order 23, Civil Procedure Code, would apply to the proceedings before the Government under Chapter IV-A of the Act, is not supported by any authorities nor do 1 find any principle on which such a submission can be grounded. In fact Order 23 is not a denial of the right of the plaintiff to withdraw a suit. It recognises, the right of the plaintiff to withdraw his suit or abandon his claim; but, because of the fact of res judicata and also because of the fact of the other interests such as those of the minors, the court insists upon its leave being granted for the withdrawals. Where the plaintiff withdraws his suit without such a leave, the result would be to debar him from bringing a fresh round of litigation. The penalty does not go beyond that. It is argued that while the writ petitions filed by the pucca holders were pending before the Supreme Court in the month of August, 1986 (and they were later disposed of in the month of October, 1986), the power of the STU to withdraw the old draft schemes stood curtailed by reason of the interim order made by the Supreme Court staying all further proceedings. The argument is that the words 'all further proceedings' will take in the power of the STU to withdraw the schemes also. I am not able to understand the language of that interim order in that way. Remembering the fact that the interim order was made in the context of a writ filed by the pucca permit-holders challenging the validity of these draft schemes, and not forgetting that the interim orders of the Supreme Court are made for the benefit of the writ petitioner, those orders, in my opinion, cannot be construed as denying the withdrawal of the schemes, which is what the petitioners have wanted as final relief in that batch of writ petitions. The orders of the Supreme Court must, therefore, be understood that all further proceedings before the Government alone were stayed. That means the Government should not consider the objections and thereby render the bearing of the writ petitions largely infructuous. After all, interim orders are made in support of the final relief granted. Therefore, those interim orders should not be understood as having any relation with matters of remote relevance like the withdrawals of the old schemes. I am, therefore, of the opinion, that this argument of the learned counsel should be rejected.
4. It is the second argument which I consider to be the most important and in fact the only substantial argument that has been advanced in this case, which requires serious consideration. The argument of the learned counsel for the petitioners is that Chapter IV-A is a complete and self-contained Code and that it provides for the publication of a draft scheme and how that draft scheme should be dealt with. In the scheme provided for by Chapter IV-A, learned counsel have pointed out, there is no provision at all to be found anywhere authorising the STU to withdraw a draft scheme once published under Section 68C of the Act. In this connection they have pointed out to rules 315 and 316 of the A.P. Motor Vehicles Rules, 1964, which relate to the publication of the Scheme and modification of the approved schemes. It cannot be denied that there is no provision of law at all in Chapter IV-A authorising the STU to withdraw a draft scheme once published by it under Section 68C of the Act. In fact, the concept of Chapter IV-A is wholly different, which is to provide for a machinery by means of which the draft scheme should be publisher objections should be received, and the Government should consider the matter. The culmination of this process is to empower the Government alone either to approve or modify or disapprove a draft scheme. If we were to examine this matter only on the basis of Chapter IV-A, there cannot be any doubt whatsoever that the withdrawal of the draft scheme by the STU would be unauthorised. It is in that context that the petitioners are laying emphasis on the fact that Chapter IV-A is complete Code. Examining the matter from the point of view of principle, I do not find it possible to agree with the learned counsel for the petitioners. The emphasis of the petitioners on the fact that Chapter IV-A should be considered as a self-contained Code, is only a partial truth The opening of Chapter IV-A itself shows its intimate inter-connection with other parts of the Motor Vehicles Act. Section 68B of the Act says,
'The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent. therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any- such law.'
To the extent that Chapter IV-A does not contain any provision about the withdrawal of the scheme by the STU, the exercise of the power of withdrawal by the STU cannot be said to be inconsistent with Chapter IV-A. The question of inconsistency can arise only if and when there are two provisions of law in dealing with the same subject matter. Secondly Chapter IV-A is willing to take the aid and assistance of the other parts of the Act provided that such aid and assistance comes in the form of subordination. This would show that neither other rules can be totally excluded nor Chapter IV-A provides for the withdrawal of the draft scheme by the STU. The question has, therefore, to be examined from the general point of law. The question is whether the STU can withdraw a draft scheme which it has published. To agree with the submission of the learned counsel for the temporary permit-holders, is to hold that willy-nilly the STU must undertake the huge financial responsibility and the organisational responsibility, to run the buses on the proposed routes merely because it has in the past committed the sim so to say, of-proposing a draft scheme. It is conceivable that after the publication of the draft scheme, the STU finds itself financially unable to undertake the running of the scheme. It is conceivable that after the publication of the draft scheme, circumstances and situations have changed that would not warrant the continuance of the scheme. If the learned Counsel's argument is to be accepted the STU will not have the power to withdraw the scheme and, therefore must run the scheme. The only way out of this impasse is to get the Government disapprove or modify the scheme. I do not think that that could be the intention of the Act. The Act is intended to provide for the transport facilities of the travelling public through the monopoly of the STU. It is based upon the assumption that the STU is in a position to financially operate these services. It is also based on the further assumption that the interests of the travelling public are best sub served by those proposed schemes. That in these matters the STU must be held fast and tight to its original proposal irrespective of any change in the situation and the knot tied by the proposal could only be loosened by the Govern- mental basis, ' does not appear to be correct. The reference made by the learned counsel to election law appears to me rather inappropriate. The matter has to be considered from the nature of the power which has been dealt with, the subject-matter of the law and the purpose of the law. Section 21 of the General Clauses Act provides that where, by an 'Central Actor 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 aim. conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules, or bye-laws to issued. 1 think that this is an Act where the subject matter, of the law dealt with by Chapter IV-A readily attracts the application of Section 21 of the General clauses Act. After all, the General Clauses Act is merely an Act to aid interpretation and not to substitute for the intention of the legislature. But, considering the facts and circumstances mentioned above, I have no hesitation in applying the rule of interpretation contained in Section 21 of the General Clauses Act. But, it is argued by the learned counsel for the petitioners that draft proposal is neither a notification nor an order nor rule nor a bye-law and that therefore, Section 21 of the General Clauses Act would not apply. I am not of that opinion consider that a draft proposal once published in the Gazette becomes notification within the meaning of Section21 of the General Clauses Act, and is, therefore. governed for that reason by the General Clauses Act.
5. It is, however, argued by the learned counsel that Section 68E of the Chapter IV- A provided for the cancellation . or modification of an approved schemes by the STU and that, therefore, it should be taken that the power of the STU to modify or cancel a draft scheme which is not provided for in Chapter IV-A is deliberate. But a learned Judge of the Allahabad High Court in Hari Ram Sharma v. Govt. of U.P., : AIR1973All214 , had ruled otherwise. The learned Judge held,
'The power to frame a scheme carried. 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 nower to withdraw once it is published under Section 68C, inasmuch as the power of cancellation or modification has to be found only in Section 6SE of the Act, which can be exercised only after the objections of the State Government have been decided does not appear to be correct. xx xx xx
xx xx xx xx xx xx xx xx
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 68D(3) is not suggestive of the result that the cowers 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 68D(3) it would be illogical to deny that power to the Undertaking before the objections have been disposed of under Section 68E.'
In view of the above, I am of the opinion that the STU has power to withdraw the draft schemes published in the years 1977 and 1978.
6. In this context, we must remember that, by a series of decisions in the Supreme Court the latest of which has been reported in Onkar Singh v. Regional Transport Authority, Agra, : [1986]2SCR735 the Supreme Court has applied the doctrine of desuetude to the old draft scheme. The Supreme Court has held that merely by lapse of number of years, the old draft schemes will lose their relevance and vitality and wording therefore, become invalid. It follows from that declaration of law by the Supreme Court that the 1977 and 1978, draft schemes can no longer subserve the interests of the travelling public and that Article 226 of the Constitution would not be promoting any public interest on insisting upon the continuance of those draft schemes. If the STU has cancelled those draft schemes, it only should be congratulated for having cleared the dead wood. The argument of the learned counsel for the petitioners that courts can scrap the irrelevant draft schemes and that the other State agencies cannot does not appear to me to be sound in principle. In fact every day every administrator of the State, who enforces the law in one way or the other is also interpreting that law. Where he goes wrong and astray in interpreting the law, it is no doubt the province of the court to correct. But that is not the same thing as saying that the administrator should hold up his hands till every time the court quashes an invalid order. After all, the courts, in setting aside invalid orders, are not creating new situations. It follows, therefore, that an administrative body like the STU is competent to remove the road-block created by the old draft schemes of the year 1977 and 1978 and that it is not necessary that the travelling public should be allowed to suffer under the weight of the old schemes.
7. Learned counsel relied on the decision of the Supreme Court in State of Bihar v. D. N. Ganguly, : (1958)IILLJ634SC . It does not help the petitioners as that judgment clearly says that the applicability of Section 21 of the General Clauses Act depends upon the subject, context and the effect of the statute. Considering the matter from that practical point of view, I hold that the subject of draft schemes is eminently fit to be dealt with by Section 21 of the General Clauses Act.
8. One of the learned counsel has argued that, if the draft schemes are allowed to he withdrawn by the STU according to its pleasure, it amounts to conferring capricious and arbitrary power leading to the defeat and frustration of the high object of nationalisation embodied in Chapter IV-A of the Act. I do not think that. any such catestropific results would ensue from conceding power to a responsible body like the STU conceived and created for the purpose of promoting the interests of the general travelling public.
9. Learned counsel also argued that the fact that there was no provision made for the payment of compensation to the temporary permit-holders under Chapter IV-A must be taken as an implied negation of power to cancel the temporary permits. This argument, in my opinion, is misconceived. Temporary permits are not cancelled by any Authority here. The cancellation of the temporary permits is a direct result of the cancellation of the draft scheme. They are granted subject to the terms that their validity does not outlast the currency of the draft scheme.
10. It is also argued that the petitioners are having reasonable expectation and that, therefore, the withdrawal of their permits must have been preceded by an individual notice and bearing accorded to each one of them. This argument has to be rejected in view of the fact above mentioned that the cancellation of these temporary permits is not the result of an individual judgment but because of the withdrawal of the draft schemes published under Section 68C of the Act. In such a situation the principles of natural justice cannot apply.
11. It is further argued by the learned counsel that the withdrawal of the draft schemes is framed on power. What the learned counsel says is that these temporary permit- holders have a right to go on till the draft schemes are approved or disapproved by the Government and the STU intended that these temporary permits should be nullified and therefore, adopted the device of withdrawing the draft schemes. The concept of fraudulent or colourable exercise of power is examined by the Supreme Court in Tulsiram Kanu v. .State, : AIR1954SC1 . That judgment clearly says that, where there is no want of power, the exercise, of power which inheres in an authority cannot rightly be called as a fraud on power. I must, therefore, hold that in view of the fact that the STU has power to cancel these draft schemes, the exercise of that power cannot be characteristic as a fraud on power. If what the petitioners have said is factually correct relating to their allegation that most of the new draft schemes are mere reproductions of the old draft schemes and there is no application of the mind I would have found some substance in their pharge that the publication of the new schemes was colourable. But, in a detailed counter-affidavit feted by the STU, it has been stated that the new draft schemes published are not on new in form but also new in content, in the number of permits proposed to but granted in the matter of permits to be newly granted, in the matter of miles to be covered, in the matter of trips to be undertaken and in all the matters the new schemes are materially different from the old schemes. In view of it do not see any basis for the contention that the publication of the new draft schemes is a fraud on power.
12. Finally, it is argued by the learned counsel that there was a discrimination between the pucca permit-holders and the temporary permit-holders, inasmuch as the pucca permit-holders will continue till the schemes are approved, whereas these Petitioners will vanish the moment the draft schemes are withdrawn I think that is an inevitable consequence of the scheme of Chapter IVA of the Act and it cannot be helped.
13. For all the aforesaid reasons, I find no substance in these writ petitions and they ire accordingly dismissed with costs. Advocate's fee Rs.500/- in each.
14. Petitions dismissed.