S.R. Singh, J.
1. Impugned in Writ No. 9332 of 2002 is the validity and legality of the order dated 3.11.2001 passed by the Hearing Authority and in the other writ petition, the validity of the scheme dated 13.2.1986 published under Section 68C of the Motor Vehicles Act, 1939 (in short 'Repealed Act') as it stands modified by the aforestated impugned order is also questioned.
2. The facts insofar as they are relevant to the controversy involved herein are briefly stated as these. A draft scheme under Section 68C of the Repealed Act was published on February 26, 1959 with a view to nationalise the Saharanpur-Sahadara-Delhi route. The draft scheme aforestated as approved was published on September 29, 1959 but in two groups of writ petitions filed in this Court, the same came to be quashed by judgments dated October 31, 1961 and February 7, 1962 as against 50 operators on the ground that they were not afforded opportunity of hearing and was upheld against other 50 operators. The judgments of this Court were upheld by the Supreme Court in Jeevan Nath Bahl v. State Transport Appellate Tribunal, in Civil Appeal No. 1616 of 1968 decided on April 3, 1960. holding that, "the effect of the order passed by the High Court in the two groups of writ petitions was clearly that (he scheme in its essence was not affected, but it was directed not to be enforced against 32 petitioners who had applied in the first group of writ petitions and as against 18 petitioners in the second group of petitioners. The true effect of the High Court's order, observed the Supreme Court, was that "there is in existence a scheme which must have the statutory operation contemplated by Section 68F of the Motor Vehicles Act". However, because of civil litigation and injunction orders obtained by some of the operators, the matter remained pending for over 25 years and in Sri Chand v. Government of U. P., 1988 (4) SCC 169, the Supreme Court held that the delay of 26 years in disposal of the objections resulted in violation of Articles 14 and 19(1)(g) of the Constitution of India. The draft scheme dated 26.2.1959, which was confined to Delhi-Saharanpur route was accordingly quashed with a direction to the State Government to frame the scheme afresh, if necessary. Pursuant thereto, the U. P. State Road Transport Corporation published the draft scheme dated 13.2.1986 not only in respect of Saharanpur-Delhi route but in respect of 39 routes including Saharanpur-Sahadara-Delhi route (mentioned at serial No. 1 of the draft scheme dated 13.2.1986). The draft scheme published on February 13, 1986, was, however, held by the Hearing Authority to have lapsed under Section 100(4) of the Motor Vehicles Act, 1988 (in short the 'new Act') which came into force on July 1, 1989 during the pendency of the draft scheme. In the writ petition filed by the State Transport Corporation challenging the said order, the High Court, upheld the order passed by the Hearing Authority by its judgment dated March 16, 1990. S.L.P. No. 6300 of 1991 was filed against the said judgment of the High Court. To complete the chain of facts, it may be stated that in the meanwhile, after the enforcement of the new Act, certain persons applied for and were granted permits for Saharanpur-Ghaziabad via Sahadara routes. Ram Krishna Verma and Ors. filed a writ petition in the Lucknow Bench of the High Court questioning the validity of permit granted to certain persons in respect of Saharanpur to Ghaziabad via Sahadara route, etc. The writ petitions came to be dismissed by this Court vide judgment dated July 23, 1990. Ram Krishna Verma and Ors. filed appeal (S.L.P.) in the Supreme Court. Special Leave Petition Nos. 9701/90, 9702/90 and 2083/91 were also filed against the High Court's judgment dismissing writ petitions in which grant of permits under Section 80 of the new Act on the Muzaffarnagar to Chausana ; Ghaziabad to Sahadara ; Saharanpur to Ghaziabad covered and partly nationalised routes were questioned. These appeals were decided by a common judgment.
3. The matter went up to the Supreme Court again and in Ram Krishna Verma and Ors. v. State of U. P. and Ors., 1992 (2) SCC 620. the Supreme Court, inter alia, held that the approved scheme dated September 29, 1959 in respect of Saharanpur-Sahadara-Delhi route would continue to be a valid scheme under the new Act in that the orders passed by the Allahabad High Court merged in Jeevan Nath Bahl's case, wherein protection was given only to 50 private operators including the appellants therein to be heard on their objections ; the fresh draft scheme dated February 13. 1986. had not been lapsed and would continue to be in operation ; the Hearing Authority would lodge the objections of the 50 operators including the appellants therein with the direction and approve the draft scheme dated 13.2.1986, within a period of 30 days from the date of receipt of the judgment ; and publish the approved scheme in the gazette ; the permits granted to the 50 operators or any other shall stand cancelled from that date, if not having expired in the meanwhile ; no permits shall be renewed ; all the permits granted to the 50 operators Including the appellants would be seized and cancelled ; and the U. P. State Road Transport Corporation would obtain required additional permits, if need be, and put the stage carriages on the routes to provide transport service to the travelling public immediately on publication of the approved draft scheme in the State Gazette. The Hearing Authority abruptly closed the hearing, approved the scheme and directed the same to be published and accordingly, the approved scheme came to be published in the Government Gazette vide Notification No. 1635/XXX/2-93-365-85 dated 29.5.1993. The approved scheme, according to the preamble of the Notification, was being published in exercise of the power under Section 100(2) of the new Act in view of the direction by the Hon'ble Supreme Court in Ram Krishna Verma v. State of U. P. and Ors., JT 1992 (2) SC 545. The approved scheme includes all the 39 routes as proposed in the draft scheme published vide Notification dated 13.2.1986 wherein was included Saharanpur-Sahadara-Delhi route at serial No. 1. Several petitions came to be filed in the High Court challenging the draft scheme. A Division Bench of this Court vide its judgment dated 19.11.1999 dismissed all the petitions holding that the scheme had stood approved by the Supreme Court in Ram Krishna Verma's case as well as Nisar Ahmad and Ors. v. State of U. P. and others. 1994 (Supp) 3 SCC 460. On the matter being taken to the Supreme Court by means of special leave petitions filed by Gajraj Singh and Ors. v. State of U. P. and Ors., 2001 (3) AWC 2002 (SC) : JT 2001 (5) SC 140, their Lordships of the Supreme Court allowed the appeal, set aside the judgment of the High Court dated 19.11.1999 and inter alia, directed that : (a) the objections filed against the draft scheme dated 13.2.1986 insofar as they relate to the 38 routes listed at serial numbers 2 to 39, i.e., routes other than Saharanpur-Sahadara-Delhi route "shall be heard and disposed of by the competent authority on its own merit in accordance with law" ; (b) only such objections will be available to be heard and decided as were filed within 30 days from the date of the publication of the draft scheme in the Official Gazette and which were maintainable to be heard in accordance with Section 68D of the Motor Vehicles Act, 1939, read with Section 100(2) of the new Act ; (c) since the period of 30 days of filing of objections had already come to an end before 1.7.1988, i.e., the date of coining into force of the new Act, only such objections would be heard and disposed of as "were already preferred" within thirty days of the publication of the draft scheme in that only such objections would be "deemed to have been preferred under Section 100(1) of 1988 Act" so as available for being heard and determined by virtue of the saving clause contained in Clause (e) of Sub-section (2) of Section 217 of the 1988 Act ; (d) the draft scheme would meet the fate consistently with the decision on objections and the approved scheme dated 29.5.1993 shall be accordingly modified or annulled in so far as routes specified at serial Nos. 2 to 39 are concerned and in case of dismissal of objections, the approved scheme, as notified on 29.5.1993, shall continue to remain in operation ; and (e) in so far as Saharanpur-Delhi route is concerned, no objection in that regard shall be heard and the scheme as regards the route shall be deemed to have been approved and maintained in terms of this Courts direction in Ram Krishna Verma's case (supra).
4. Pursuant to the judgment of the Supreme Court in Gajraj Singh's case, the matter was again taken up by the Hearing Authority. The Hearing Authority, inter alia, held that routes mentioned at serial Nos. 2 to 6 being part of routes mentioned at serial No. 1, i.e., Delhi-Saharanpur route had already become final in view of the judgment of the Supreme Court in Ram Krishna Verma's case and, therefore, no further directions were required for this route in relation to which the scheme dated 29.5.1993 had already become final. The proposed scheme dated 13.2.1986 was accordingly modified, in 'public interest', to the extent that the routes mentioned at serial Nos. 2 to 6 including the overlapping routes and routes mentioned at serial No. 18 are to be plied co-jointly by the U.P.S.R.T.C. and the private operators prior to 13.2.1986 and on rest of the routes proposed in the scheme dated 13.2.1986 finalised on 29.5.1993, only U.P.S.R.T.C. shall ply its buses along with permit holders having their permits on or before 13.2.1986. The effect of the order, it has been provided by the Hearing Authority, would be subject to final decision of the High Court in Writ Petition No. 3020 (MB) of 2001 in respect of the routes mentioned in the said writ petition.
5. We have heard Sri Sameer Sharma, learned counsel appearing for the U.P.S.R.T.C., Sri R.N. Singh, Senior Advocate assisted by Shri G.K. Malviya representing the petitioners in Civil Misc. Writ Petition No. 5857 of 2002, Smt. Rashmi Gupta v. State of U. P. and Ors., Sri L.P. Naithani, and Sri Ravi Kant, Senior Advocates assisted by their respective juniors have been heard in opposition. Questions that emerge for consideration and determination may be formulated as under :
(1) Whether Civil Misc. Writ Petition No. 9332 of 2002 filed by the U.P.S.R.T.C. is maintainable, in the absence of the private operators who have been allowed to ply their vehicles co-jointly with the U.P.S.R.T.C. on the routes including the overlapping portion thereof as indicated in the impugned order?
(2) Whether the scheme dated 13.2.1986 has lapsed by efflux of time in view of Section 100(4) of the new Act?
(3) Whether the scheme dated 13.2.1986 as it stands modified by order dated 3.11.2001 is open to challenge at the behest of private operators who were not 'existing operators'?
(4) Whether the private operators who have been allowed to ply their vehicles along with U.P.S.R.T.C. had filed their objections within 30 days from 13.2.1986 and whether such objections were available on record for being disposed of in accordance with law as per directions given by the Lordships of Supreme Court _ in Ram Krishna Verma's case?
(5) Whether the impugned scheme is in antagonism of Articles 14 and 19(1)(g) of the Constitution?
In re-First question :
6. S/Sri L.P. Naithani and Ravi Kant, Senior Advocates raised a preliminary objection and vehemently submitted that the writ petition filed by the U.P.S.R.T.C. is not maintainable in absence of private operators at whose instance the draft scheme dated 13.2.1986 has been modified and who have been allowed to ply their vehicles along with U.P.S.R.T.C. in that any adverse order passed by this Court will affect such operators. Sri Sameer Sharma, learned counsel appearing for the U.P.S.R.T.C.. on the other hand, submitted that since the scheme as modified by the order passed by the Hearing Authority, has not yet been published, the private operators have acquired no right to ply their vehicles and in any case, proceeds the submission of Sri Sameer Sharma, the interest of 'existing operators' is well represented by the operators who have put in appearance and who are represented by Senior Advocates, like S/Sri L.P. Naithani and Ravi Kant. The law on the subject is well-settled. True, the 'existing operators' whose objections have found favour with the Hearing Authority would acquire right to ply their vehicles only after the approved scheme is published in the State Gazette but even persons having inchoate rights are entitled to be heard before passing any adverse order depriving them of their inchoate rights. Even otherwise, it would be ridiculous to hold that though they were entitled to be heard before the Hearing Authority, they have no right of hearing in the Court where the order passed by the Hearing Authority is under challenge. In Udit Narain Singh v. Board of Revenue, AIR 1963 SC 786, it has been held that in a writ of certiorari, not only the Tribunal or the authority whose order is sought to be quashed but also the parties in whose favour such order is issued, are necessary parties and it would be against principle of natural justice to make an order adverse to them behind their back. But it is equally well-settled that where persons to be vitally affected are large in number and what is under challenge is the validity of a law. It would be sufficient if some of the persons, who are likely to be affected are heard in representative capacity. Prabodh Verma v. State of U. P., AIR 1985 SC 167, is an authority on the point. A written argument has been submitted on behalf of Sri Risal Singh, one of the existing operators. It would appear from a reading of the written arguments that Risal Singh as well as other operators holding valid permits on the routes in question on the date of the draft scheme dated 13.2.1986 was promulgated are 'similarly situated'. The existing operators are very large in number and the scheme being a law in itself what is under challenge herein is the validity of a law and, therefore, the writ petition filed by U.P.S.R.T.C. is not liable to be dismissed merely on the ground of non-impleadment of all the existing operators as party respondents to the writ petition in that the interest of all the existing operators is well represented by those who have voluntarily chosen to put in appearance in opposition to the writ petition.
In re-Second question :
7. The next question is whether the draft scheme dated 13.2.1986 has lapsed by efflux of time in view of Section 100(4) read with Section 217(2)(e) of the new Act. For convenience and proper appreciation of the question, Sections 100 and 217(2) of the new Act may be abstracted below :
"100. ..........................................
(1) ........................................
(2) ........................................
(3) ........................................
(4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under Sub-section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under Sub-section (1), the proposal shall be deemed to have lapsed.
Explanation.--In computing the period of one year referred to in this sub-section, any period or periods during which the publication of the approved scheme under Sub-section (3) was held up on account of any stay or injunction by the order of any Court shall be excluded."
* * *
"217. ..........................................
(1) ........................................
(2) Notwithstanding the repeal by Sub-section (1) of the repealed enactments :
(a) ........................................
(b) ........................................
(c) ........................................
(d) .......................................
(e) any scheme made under Section 68C of the Motor Vehicles Act, 1939 (4 of 1939) or under the 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 ;
(f) the permits issued under Sub-section (1A) of Section 68F of the Motor Vehicles Act, 1939 (4 of 1939), or under the corresponding provisions, if any, in force in any State immediately before the commencement of this Act shall continue to remain in force until the approved scheme under Chapter VI of this Act is published."
8. The draft scheme in the instant case was published under Section 68C of the Repealed Act. The objections filed against the proposal were pending on the date of commencement of the new Act and had to be disposed of in accordance with the provisions of Section 100 notwithstanding the repeal of the Motor Vehicles Act, 1939 as visualised by the Section 217(2)(e) of the new Act. As a necessary corollary, the draft scheme dated 13.2.1986 would be deemed to be a scheme under the new Act which came into force on 1.7.1989. Unlike Section 100(4) of the new Act, Section 68D of the repealed Act did not provide that the scheme would lapse due to failure to publish the scheme as approved under Section 68D (2) of the repealed Act. However, in Ashfaqullah v. State of U. P., 1987 (Supp) SCC 38 and in K. T. Dharenendrah v. R. T. O., 1987 (Supp) SCC 76, the Supreme Court quashed the notification publishing draft scheme under Section 68C of the repealed Act on the ground of unexplained inordinate delay in publishing the approved scheme under Section 68D. The reason is obvious. 'In Yogeshwar v. State Transport Appellate Tribunal, AIR 1985 SC 516, it has been held that the delay in finalisation of scheme is bound to upset all or any of the factors, namely, efficiency, adequacy, economy or coordination which govern an approved scheme. The same view has been reiterated by the Supreme Court in Phool Chand Gupta v. Regional Transport Authority, Uyain and Ors. and Kiran Pal and Kanwar Pal v. State Transport Appellate Tribunal, U. P., Lucknow and Anr., AIR 1986 SC 119 and 1999 AWC 470. In Kiran Pal & Kanwar Pal v. State, Transport Appellate Tribunal, U. P., Lucknow and Anr., one of us (S. R. Singh, J.) has taken the view that one year period of limitation fixed for publication of 'approved'/ 'modified' scheme, as visualised by Section 100(4) of the new Act in relation to a pending scheme must begin to run from 1.7.1989, and, therefore, the draft' scheme would be deemed to have lapsed if it is found that the scheme as 'approved' or 'modified' scheme was not published under Sub-section (3) of Section 100 of the new Act in the Official Gazette within one year from the date of commencement of the new Act, i.e., upto 30.6.1990 as visualised under Section 100(4) as the question is no longer res integra. In Ram Krishna Verma's case, the Supreme Court, relying upon an earlier decision in Krishna Kumar v. State of Rajasthan, 1991 (4) SCC 258, has held so in the following words :
"In Krishna Kumar v. Stale of Rajasthan. this Court considered the effect of Section 100(4) read with Section 217(2)(e) of the Act and held that the rigour of one year period provided under Section 100(4) would apply to the draft scheme published under Section 100(1) of the Act and it would not apply to the scheme framed under Section 68C and pending as on the date of the commencement of the Act. On harmonious construction of Sections 217(2)(e) and 100(4) of the Act. the draft scheme published under Section 68C of the Repealed Act would stand lapsed only if it is not approved within one year from the date when the Act came into force i.e., with effect from July 1, 1989, by which date it was pending before the hearing authority and one year had not expired ............ ".
9. S/Sri L.P. Natthani and Ravi Kant as well as Sameer Sharma have however, submitted that the draft scheme would not lapse due to the reasons firstly, that it was published pursuant to the direction given by the Supreme Court in Sri Chand's case and secondly, because it was not quashed by the Apex Court in Ram Krishna Verma and Cajraj Singh (supra). There is no merit in the submission. The Apex Court, no doubt, is endowed with vast power under Article 142 of the Constitution, to make such order as is necessary for doing 'complete justice' in any case or matter pending before it and the provision contains no limitation regarding the causes or circumstances in which the power can be exercised nor does it lay down any condition to be satisfied before such power is exercised but it is equally well settled that "this power is not to be exercised to override any express provision" nor is the power to be "exercised in a case where there is no basis in law which can form an edifice for building up a super structure"-Union of India V. M. Bhaskar and E. S. P. Raja Ram v. Union of India, 1996 (4) SCC 416 and 2001, (2) SCC 186. Directions given by the Supreme Court must be so construed as to avoid breach of any statutory provisions as held by the Supreme Court in Rauindra Singh v. Phool Singh, 1998 (1) SCC 251. In Ram Krishna Verma's case, the Supreme Court has no doubt observed that the Hearing Authority "wrongly concluded that the draft scheme stood lapsed" but this observation was confined to Saharanpur-Delhi route only which was approved and published on September 29, 1959 and which, as held by their Lordships of the Supreme Court in Jeewan Nath Wahal, would operate as against every other person other than the fifty operators. The thirty-eight routes (i.e., the routes other than Delhi-Saharanpur route including the routes overlapping the said route) were not the subject-matter of the two cases, namely, Ram Krishna Verma and Nisar Ahmed decided by the Supreme Court and it has been so clarified by their Lordships of the Supreme Court in Gajraj Singh and Ors. v. State of U. P. and Ors., 2001 (3) AWC 2002 (SC) : JT 2O01 (5) SC 140, in the following words :
"We have carefully persued the decision of this Court dated 9.9.1994 in Ntsar Ahmad and Ors. v. State of U. P. and others, 1994 (Supp) 3 SCC 460 also. Therein also those very schemes had come for the consideration of this Court. Almost the same pleas were raised as were raised in and disposed of by Ram Krishna Verma's case. Vide para 2, this Court has said that "the direction issued by this Court under Article 142(1) are binding on all the parties including the 50 operators and were declared to be bound by the orders passed by this Court in Ram Krishna Verma's case". Two contentions were advanced before this Court on behalf of Nisar Ahmad and Ors. : Firstly, that prior approval of the Central Government relating to the scheme on the inter-State route was mandatory under Section 100(3) of the 1988 Act and yet not having been obtained, the scheme was vitiated ; and secondly, that the scheme having not been published under Section 100(4) within a period of one year from the date of the draft scheme, it had lapsed. This Court found no force in the contentions. The first plea was turned down on the authority of Jeewan Nath Wahal and Ram Krishna Verma's cases as also on the ground that prior approval of the Central Government had in fact been obtained on 9.9.1959. As to the second contention, it was held that the scheme was not the one proposed under the 1988 Act but under the 1939 Act and, therefore, the scheme could not lapse as what is required by the proviso to Sub-section (3) of Section 100 (of the 1988 Act) is a scheme proposed under "the Act". Further, a draft scheme was , published under the direction of this Court. All these observations clearly go to show that, Nisar Ahmad and Ors. case (supra), related to that scheme which was dealt with by this Court in earlier two decisions. Needless to say that the 38 routes were not subject-matter of those two decisions."
10. In the conspectus of the above discussion, it is abundantly clear that the draft scheme dated February 13. 1986 stood lapsed under Section 100(4) insofar as it relates to routes mentioned at serial Nos. 2 to 39 inasmuch as the scheme as approved was not published within one year from the date of commencement of the new Act.
In re-Third question :
11. It has been contended by S/Sri L.P. Naithani and Ravi Kant, Senior Advocates appearing for some of the private operators that the scheme dated 13.2.1986 as it stands modified by order dated 3.11.2001 is not resilient to change at the behest of private operators who were granted permit subsequent to publication of the draft scheme in that such operators had no right to file objection under Section 68D of the repealed Act. The draft scheme was published under Section 68 (C) of the repealed Act. Section 68D of the repealed Act, as it stood before its amendment by Act 56 of 1969 (enforced with effect from 2.3.1970) provided for filing of objection by 'persons affected' but Section 68D of the repealed Act as it stood amended by Act 56 of 1969 provided for filing of objections by (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 provisions of road transport facilities recognised in this behalf by the State Government ; and fiiij any local authority or police authority within whose jurisdiction any part of the area or route proposed to be covered by the scheme lies. Section 100 of the new Act, no doubt, provides that 'any person may, within 30 days from the date of its publication in the Official Gazette, file objection to the draft scheme before the State Government* but since the period of limitation of filing objection against draft scheme dated 13.2.1986 had already expired on the date of commencement of the new Act, only those objections were entertainable which were filed within 30 days from the date of publication of the draft scheme and which were maintainable under Section 68D (2) of the repealed Act and by that reckoning, the persons other than those referred to in Section 68D (1) had no right to challenge the draft scheme or the scheme as it stands modified by the order passed by the Hearing Authority but in case the scheme stood obliterated or lapsed by operation of law, its approval thereafter can be challenged by any person irrespective of whether such persons were providing transport facility on the date of publication of the draft scheme or not. Since the draft scheme dated 13.2.1986 in so far as it relates to routes 2 to 39, had lapsed before its approval by notification dated 29.5.1993, 'any person' can challenge the legality of the impugned order passed by the Hearing Authority and seek a declaration that the draft scheme had already lapsed under Section 100(4) of the new Act before its modification and, therefore, it was not open to be approved or modified. The writ petitions filed by private operators who were granted permits subsequent to the date of publication of the draft scheme are, therefore, maintainable.
In re-Fourth question :
12. It has been contended by Sri Sameer Sharma appearing for the U.P.S.R.T.C. that despite direction given by the Apex Court, the Hearing Authority did not advert itself to the question as to who had filed objection within 30 days from the date of publication of the draft scheme and whose objections were maintainable under Section 68D of the repealed Act, In paragraph 21 of the writ petition filed by the U.P.S.R.T.C., It has been alleged that none of the private operators who appeared before the Hearing Authority had filed their objections within the time frame as determined by the Apex Court vide judgment dated 1.5,2001 and hence the objections of such private operators could not be considered by the Hearing Authority. In paragraph 22, it has been alleged that the Hearing Authority had clearly erred in considering the objection of the private operators without determining as to whether they were entitled to be heard in view of unambiguous observations made by the Apex Court. As noticed above, the persons providing transport facility on the date of publication of the draft scheme, were entitled to the objection and only such objections were to be entertained and decided in accordance with Section 100 of the new Act as were filed under Section 68D of the repealed Act within 30 days from the date of publication of the draft scheme. The Hearing Authority ought to have addressed itself to the question as to who were such objectors but had failed to do so. In his affidavit filed by Sri Rafiq Ahmad Khan sworn on 9.5.2002, it has been deposed that in the record which was produced before this Hon'ble Court, no objection received within 30 days from the date of publication of the proposal dated 13.2.1986 is available and list of such objectors is available on the record. The objections are no doubt not available on the record but the list of objectors who are said to have filed their objections within 30 days from the date of publication of the proposal dated 13.2.1986 is on record and the Tribunal has proceeded on that assumption. Though the Hearing Authority has not recorded any categorical finding but there is nothing on the record to manifest that the plea was specifically raised before the Hearing Authority during the course of arguments on behalf of U.P.S.R.T.C. and as such in the absence of materials on record, this Court finds itself hamstrung to converge to any conclusion this way or that way and since in the opinion of the Court, the draft scheme itself had lapsed in view of Section 100(4) of the new Act, it would be an exercise in futility to relegate the case to the Hearing Authority or direct it to return a finding on this issue.
In re-Fifth question :
13. In view of the conclusions arrived at in relation to question No. 2, it is not necessary to delve into this question but since arguments were advanced by the learned counsel on this issue as well, we feel called to record our opinion on the issue as to whether the impugned scheme is violative of Articles 14 and 19(1)(g) of the Constitution. The legal position well-settled is that any route or area whether wholly or partly, could be taken over by the State Transport Undertaking under any scheme published, approved and notified under Chapter IVA of the repealed Act. The corresponding provision under the new Act is contained in Chapter VI which has an overriding effect over the provisions contained in Chapter V as would be evident from the non-obstante clause contained in Section 98 of the new Act. In S. C. Naram v. State of Mysore, AIR 1970 SC 1073, a Constitution Bench of the Supreme Court has held that the scheme framed under Section 68C of the repealed Act is the law within the meaning of Articles 13 and 19(6) of the Constitution. Such scheme may exclude private operators from notified routes or areas and on that ground alone, it is immune from a challenge on the ground that it impinges upon the fundamental rights guaranteed under Article 19(1)(g) of the Constitution. The challenge to such scheme on the ground of being arbitrary or discriminatory is also not available. No private operator can operate his vehicle on any part or portion of route unless authorised so to do by the terms of the scheme itself, see Adarsh Travel Bus Service v. State of U. P., 1985 (4) SCC 557. The initial proposal vide notification dated 13.2.1986 visualised a total prohibition of private operators from plying such carriages on the notified routes. Such complete exclusion of private operators did not violate Article 14 or Article 19(1)(g) of the Constitution. Though the Hearing Authority, was required to consider only such objections as were actually filed within 30 days from the date of publication of the draft scheme and as were legally maintainable within the meaning of Section 68D (1) of the repealed Act but this does not mean that the Hearing Authority was not required to address itself to the question as to whether it was necessary to modify the proposed scheme and if so to what extent. The Hearing Authority, was, no doubt, legally bound to consider only such questions as were maintainable within the meaning of Section 68D (1) of the repealed Act but having r entertained such objections, it ought to have recorded, considered and a categorical finding as to whether it was at all necessary to modify the scheme and if so, to what extent and then only it ought to have proceeded to modify the scheme consistently with its conclusions. It sought to have considered as to whether the transport facilities proposed by the U.P.S.R.T.C. would meet the requirements of the travelling public or it would be necessary to provide additional transport service. In case, the Hearing Authority, were to converge to the conclusion that apart from the services being provided by the existing operators including U.P.S.R.T.C., the requirement of the route and the area having regard to the population and conditions of routes would be met only by providing services of more vehicles. i.e., additional travelling facilities, then, in that event, it would be necessary to grant permit in favour of the private operators over and above the existing operators, having regard to the liberalised policy of the new Act and it is in this sense that the order passed by the Hearing Authority has resulted in infringement of Articles 14 and 19(1)(g) of the Constitution.
14. Accordingly, in view of the above conclusions, the impugned order passed by the Hearing Authority is partly quashed and the scheme dated 13.2.1986 published under Section 68C of the repealed Act and the approved scheme dated 29.5.1993 as it stands modified by the order dated 3.11.2001 passed by the Hearing Authority are quashed to the extent they relates to routes mentioned at serial Nos. 2 to 39. The scheme as well as the order passed by the Hearing Authority in respect of Delhi-Saharanpur route including the routes overlapping it are maintained. The parties shall bear their respective costs.