BARIAT ULLAH KHAN Vs. STATE OF U P

JUDGEMENT

(1.) This special appeal has been filed by Bariat Ullah Khan whose petition under Article 226 of the Constitution has been dismissed by a learned Single Judge of this Court. The facts giving rise to the writ petitions that the appellant held a permit for plying a stage carriage on Bareilly Shiahgarh route. The transport authorities decided to nationalise this route. On 14th May, 1960, a notification was issued under Section 68-C of the Motor Vehicles Act (hereinafter referred to as the Act) and was published in the U. P. Gazette dated 21st May, 1960. Various objections to the scheme were filed amongst which was an objection by the petitioner. That objection was heard by Sri Rule Chandra, Joint Secretary to the State Government in the Judicial Department. His objection was dismissed and then on 10th July, 1961, a notification was issued under Section 68-D of the Act approving the draft scheme. This notification was published in the U. P. Gazette dated 15th July, 1961. As a consequence of the scheme being enforced, the petitioner's permit for stage carriage was cancelled and the State Government started running its own stage carriage on this route. The petitioner by the petition under Article 226 of the Constitution prayed for quashing the notifications dated 14th May, 1960 and 10th July, 1961 as also the notice dated 31st July, 1961 and the order dated 28th July, 1961, accompanying it. The notice dated 31st July, 1961 and the order dated 28th July, 1961, related to the cancellation of the permit of the appellant. There was a further prayer for the issue of a writ of mandamus directing the respondents, the State of Uttar Pradesh and the Regional Transport Authority Bareilly not to implement the scheme published in the U. P. Gazette dated 15th July, 1961. The petition was opposed by the respondents and was dismissed by the learned single Judge holding that the appellant was not entitled to any relief.

(2.) Sri Section C. Khare, learned counsel appearing for the appellant, urged before us as his first point the submission, which was made before the learned single Judge also, that the hearing of the objection under Section 68-D of the Act by Sri Rule Chandra, Joint Secretary to the State Government in the Judicial Department did not amount to hearing by the State Government and consequently did not satisfy the requirements of Section 68-D of the Act. Sri Section C. Khare could not, however, indicate who should have been the person who should have given a hearing to the appellant on the objection under Section 68-D. of the Act because that provision of law only mentions the State Government which is not a human being, and the Government must necessarily Act through human beings. On the other hand, on behalf of the State reliance was placed on Rule 7 framed by the State Government on this subject which was notified by notification No. SRT SDR--AM 1-757-TM/XXX-4492-T-55 published la Part I-A of the U. P. Gazette dated 7th March, 1959. This rule lays down: "The objections received shall be considered by the Judicial Secretary to Government U. P., or an officer of his department, not below the rank of a Joint Secretary, nominated by the former for the purpose." The rule also lays down the procedure to be adopted by the Officer requiring him to give an opportunity of being heard to the objectors or their representatives and also the representatives of the transport undertaking. It also lays down that, after hearing such parties as appear, the officer shall give a decision whether the scheme should be approved or modified, as he may deem proper. The authority conferred on the State Government to hear objections under Section 68-D of the Act has thus, under this rule, required to be exercised through the Judicial Secretary or an officer of his department nominated by him being of a rank not below that of a Joint Secretary. Admittedly Sri Rule Chandra was Joint Secretary in the Judicial Department and having been nominated to hear the objections by the Judicial Secretary he competently acted on behalf of the Government in hearing the objections and giving a decision in accordance with Rule 7.

(3.) In view of these facts learned counsel for the appellant slightly shifted his ground and urged before us that this Rule 7 referred to above, was not a valid and competently made rule and, since the rule itself was void, the hearing of the objection and its decision by Sri Rule Chandra, Joint Secretary to the State Government in the Judicial Department did not result in complying with the requirements of Section 68-D. The notification in the U. P. Gazette bringing into force Rule 7 mentions that the Governor was making this rule in exercise of the powers conferred by Section 68 of the Motor Vehicles Act. It has appeared to us that in the Gazette Notification the mention of "Section 68" was probably a misprint for "Section 68-1", because Section 68 of the Act occurs in Chapter IV and relates to framing of rules on subjects which have no connection with the subject-matter of this Rule 7. It is only Section 68-1 of the Act which deals with framing of rules by the Government for the purposes of Chapter IV-A of the Act which comprises within it Section 68-D and other relevant sections. Even learned counsel for the appellant did not in fact rely on this apparent accidental error in the notification. The point urged by learned counsel was that even under Section 68-1 it was not competent for the State Government to make a rule conferring upon the Judicial Secretary or a joint Secretary of his department nominated by him the power of the State Government to hear objections under Section 68-C of the Act and he urged that for this reason the rule should be held to be invalid. We agree with learned counsel that the provisions of Section 68-1 of the Act do not contemplate the framing of a rule of this nature and the rule as framed cannot be justified as having been in exercise of the powers conferred on the State Government by Section 68-1 of the Act. It has appeared to us that such a rule could be competently made by the State Government under Article 166 (3) of the ' Constitution read with Article 154 (1) of the Constitution. Against this view of ours learned counsel made two submissions. One point urged by learned counsel was that even Article 166 (3) read with Article 154 (1) of the Constitution did not in fact justify the framing of this Rule 7. The second submission was that the State Government in fact purported to exercise the rule making power conferred on it by Section 68 or Section 68-1 of the Act, and since the rule was beyond the scope of the powers conferred by the Act, it was not permissible to take shelter behind, the power conferred by Article 166 (3) and Article 154 (1) of the Constitution for justifying the exercise of the power to make this rule.