BHARGAVAN AND SONS Vs. RTA

JUDGEMENT

(1.) These appeals are against the judgment of a learned Judge of this Court who dismissed a series of writ petitions by private operators who complained about the actions taken in pursuance of the scheme for nationalising the routes over portions of which the vehicles were operating and consequential proceedings for the elimination or the private operators. The scheme in question was published on 4-6-1971 by the Kerala State Road Transport Corporation (2nd Respondent) under S.68C of the Motor Vehicles Act, to take over thirteen routes in the Trivandrum District for exclusive use by the said Corporation. Objections to the Scheme were heard by the Chief Minister in 1973. Ext P3 notice dated 12th December, 1975 was issued approving the said Scheme under sub-s.(2) of S.68D of the Act. Eighteen buses of the writ petitioners - appellants were plying on the nationalised route. The petitioners were given notice Ext P4 dated 6-1-1976 under Sub-s.(2) of S.63F of the Act, indicating that it was proposed to cancel the existing transport permits of the petitioners and to reject their application for renewal of the pucca permit. Ex. P4 indicated that the objections would be heard by the Regional Transport Authority before passing the final orders. The petitioners moved the writ petitions for a mandamus not to proceed further with Ext. P4 and to renew the stage carriage permit of the petitioners.

(2.) The complaint made in these appeals is that the vehicles of the appellants are operating only on a portion of the nationalised route and that unless the services are co-terminous with the notified route the elimination of the services would not be justified and proper. The learned Judge rejected the contention. For the appellants reliance was placed on the unreported judgment of the Supreme Court in Civil Appeal Nos. 1755 and 1756 of 1968 dated 17-5-1974. Reference was made to Mysore State Road Transport Corporation v. Mysore State Transport Appellate Tribunal, ( AIR 1974 SC 1940 ) decided on 8-8-1974 and to the later judgment of that Court dated 5-9-1974 (reported earlier) in C. P Sikh Regular Motor Service etc. v. The State of Maharashtra ( AIR 1974 SC 1905 ). The subtle point stressed was that unless the termini are formed there is no route, and therefore in this particular case, so long as the termini of the routes of the petitioners are not shown to be the same as the termini of the nationalised route there can be no exclusion of the petitioners. The argument was spun out of the distinction between the concepts of "route" and "highway"' and the observations explaining these, in some of the decisions. We shall consider this argument briefly in the course of the judgment. But before we do so, as rightly pointed out by Counsel for the Respondents we wish to emphasise that the Scheme in question is essentially a route scheme, confined to specified routes indicated therein. The question of the area covered by the Scheme, does not really arise. The routs covered by the Scheme are mentioned in Annexure A to Ext. P3, the approved Scheme. The said annexure again clearly brines out that the Scheme was essentially a route-scheme, that there is no question of defining the area covered by the Scheme and that the intention was to exclude not only any operators plying on the entirety of the thirteen routes covered by the Scheme, but even in any portion of the said routes. This is seen from the Annexure to Ext. P1 notification issued under R.3 of the Kerala Motor Vehicles (State Transport Undertakings) Rules, 1971, read with S.68C of the Motor Vehicles Act. The said notification unmistakably indicated that the Corporation proposed to take over the specified route "in complete exclusion of the existing passenger transport service on the routes as such or any portion thereof". Mark that even vehicles plying on any portion of the route or routes were proposed to be taken over. On the terms of the Scheme therefore there can be little doubt that even if the routes of the private operators were not coterminous with the nationalised route, they were to be taken over by the Kerala State Road Transport Corporation. Once a draft scheme of nationalisation is published under S.68C, it is in itself a 'law' for the purpose of Art.19(6) of the Constitution. Ext. P1 is in the form prescribed by the Motor Vehicles Act and the Kerala Motor Vehicles (State Transport Undertaking) Rules. Form I of the earlier Rules was to be for a complete exclusion scheme, Form II for a partial exclusion scheme, and Form III for a scheme in supplementation. Ext. P1 is in Form I. By the time the scheme was approved and Ext. P3 issued, new Rules had come into force. The distinction between complete exclusion scheme and partial exclusion scheme had ceased to be operative. Therefore it was that Annexure A to Ext. P3 mentioned only the routes without mentioning the area and clearly evidenced the intention to exclude not merely from the thirteen specified routes but even from any portion thereof Ext. P4 notice dated 6-1-1976 proposing to cancel the existing transport permit and to reject the application for removal was strictly in accordance with S.60(1)(f) of the Act and no objection could be raised against the same.

(3.) Now to the question of law debated. The decision of the Privy Council in Kalani Valley Motor Transport Co. Ltd. v. Colombo Retnapur Omnibus Co. Ltd. ( 1946 AC 338 : AIR 1946 PC 137 ) appeared to be fountain source of the argument based on the distinction between "route" and "highway". Sir John Beaumont who gave the opinion of the Board observed: