HARI RAM SHARMA Vs. GOVERNMENT OF U P

JUDGEMENT

(1.) THE State Transport Under taking in exercise of powers under Sec tion 68-C of the Motor Vehicles Act (here inafter referred to as the Act) published a scheme of the U. P. Gazette dated June 25, 1960, of respect of the Aligarh-Tappal route. Objections were filed against the proposal These objections remained pending and sub sequently a representation was submitted to the Minister of Transport, U. P. on 29-1-1971. It is said that a delegation of opera tors of the route contacted the Minister concerned personally of respect of this re presentation and subsequent thereto, remin ders were also sent. The Minister concern ed, seems to have passed an order on the 24th March, 1971 for denotiflcation of the route. The Minister of Transport also sent a letter on the 25th March, 1971 to one Chandra Pal Singh who is Vice-President of the Union of Operators, intimating to him that he had decided that the route should be denotified, and that he would be inform ed in due course about this decision, by the Transport Department. The State Govern ment had appointed the Legal Remembran cer. Shri B. C. Saxena, Joint Legal Remem brancer has the authority to decide objec tions in respect of this route. The matter was taken up by him, and the operators railed the objections that inasmuch as the scheme had been directed to be denotifled, the proceedings should be dropped. The Officer, however, did not accept this con tention. He came to the conclusion that the decision taken by the then Transport Minister was only a tentative one, and, fur ther that inasmuch as the order was not expressed in the name of the Governor, it did not have binding force. Taking the order as only advisory in nature, he rejected the objections of the petitioners, and fixed a date for disposal of the objections. The petitioners challenge this order as also pray for an order restraining the officer con cerned from proceeding further in the matter.

(2.) COUNSEL for the petitioners has urged that the State Transport Undertaking is a Department of the Government, and the Transport Minister being the head of that Department was fully competent to pass an order for denotifying the route, and it was not necessary that die order should be ex pressed in the name of the Governor for it to become effective. It is also urged that the order of the Minister concerned was an order under Section 68-D (2), and being an. order quasi-judicial in nature, the same could not be rescinded by any subsequent decision of the State Govt., for there was no power of review. Counsel for the State has urged that in reply the scheme is notified in the Official Gazette as required by Sec. 68-C, and assuming that the State Transport-Undertaking could withdraw the scheme, it could be done only in a like manner i.e., by another notification, and a mere order of the Transport Minister was not sufficient to effect a denotification of the route. It is also urged that the Transport Minister could not pass the impugned order on behalf of the State Transport Undertaking, inasmuch as under the statute he was not the head of that Undertaking. It is also urged that the order in question was not passed by the State Government under Section 68-D (2) inasmuch as the Transport Minister was not a person authorised to dispose of the ob jections, and that being so the question of reviewing the order does not arise.

(3.) COUNSEL for the petitioners had, however, drawn my attention to a decision of this Court in the case of Mowasi v. State of Uttar Pradesh, AIR 1953 All 595 and hat contended that once the Minister concerned had taken the decision to withdraw the notifi cation, the same could not be departed from subsequently, and further that it was not necessary that the decision of the Ministes concerned should be notified. It is now ne cessary to consider this decision. This case was one under the Land Acquisition Act. A preliminary notification had been issued under the Act Objections were invited undes S. 5-A of the Act. After the objections had been filed, the State Government considered the matter and after perusing all the rele vant documents and the report of the Land Acquisition Officer allowed the objections and decided not to acquire the plots. A G. O. was also issued by the State Govern ment. Subsequently, the Land Acquisition Officer ordered the proceedings for acquisi tion to be dropped. Later, however, an other G. O. was issued cancelling the ear lier one and, thereafter, the Land Acquisi tion Officer, acting on the basis of the sub sequent order, re-started the proceedings. The Bench took the view that inasmuch at the decision under Section 5-A was, made by the statute to be final, that decision could not be altered and no notification under Sec tion 6 could be made, for that would rescind the decision under Section 5-A which the Act made final. This decision is based upon the language employed in Section 5-A of the Land Acquisition Act and cannot assist the petitioners so far as the present case is con cerned, and no general propositions, as the petitioners' counsel seeks to deduce from this case, emerged from this decision. The other contention raised on behalf of the petitioners is also without substance. No factual foundation at all has been made in the peti tion for this argument and neither has a ground appropriate to this contention been taken. Before recourse to Section 68-D sub-clause (2) can be taken, it has to be seen as to whether the Minister for Trans port was authorised to consider and decide the objections. Section 68-D sub-clause (2) contemplates a decision of the objections by the State Government, and State Govern ment cannot be equated with the Minister for Transport. It is nowhere stated in the petition that at the time the Transport Minister passed the order in favour of the petitioners, no officer had been designated to decide the objections by the State Gov ernment. In these circumstances, the possi bility that the power may have, at the rele vant point of time been delegated to some officer cannot be ruled out. Be that as it may, before the order of the Transport Minister could be taken to be that of the State Government, the petitioners had to show conclusively that the Transport Minis ter was authorised to decide the objections by the State Government. These considera tions apart, in case the petitioners are per mitted to take this ground, which involves a mixed question of fact and law, the retpondent will be prejudiced, inasmuch as the facts necessary for such attack not having been taken in the petition and no such ground having been raised, the respondents had no opportunity of meeting such a conitention. A fair reading of the petition fur ther discloses that even the petitioners did not take the order of the Transport Minister to be one under Section 68-D (2), and the present argument seems to be afterthought. All the contentions raised on behalf of the petitioners therefore, fail.