NORTH WEST TRANSPORT SYNDICATE Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE petitioner No. 1 is a registered Associa ion of the Stage Carriage permit holders and the members are running buses in the route Nagoan-Marigoan-Basanaghat-Jagiroad, for short, 'notified route' and its sub-routes. On 11th January, 1977 the Government of Assam, respondent No. 1, after considering the objections published a scheme under Section 68D of the Motor Vehicles Act, 1939, for short, 'the Act' (Annexure-A to the petition) and according to that scheme the Assam State Transport Corporation, for short, 'the Corporation' was allowed to run and operate passenger road transport service in partial exclusion of other persons subject to the condition that only existing number of private buses, that is, 73 plying on the said route shall be allowed to operate side by side along with the State Transport Corporation buses. In other words, though the route in question was notified, the present petitioners were allowed to operate buses side by side along with the buses of the Assam State Transport Corporation.

(2.) THE respondent No. 4 is also an Association of Stage Carriage permit holders and they are operating in the route Nagoan-Dhing-Moirabari-Lahorighat-Bhuragoan-Gerua-Basanaghat with its sub-routes. The respondent No. 4 filed a petition before the State Government praying for allowing them to overlap a portion of the 'notified route' from Basanaghat to Jagiroad. The petitioner filed objections and the matter was fixed for hearing. But on the prayer of the parties the hearing was twice adjourned and finally the matter came up for hearing before the State Government on 17-8-81 at Dispur at 11 A.M. As the petitioners were not present, the matter was heard in their absence and the Government of Assam modified the approved scheme and accordingly informed the Secretary, Regional Transport Authority, Nagoan. by letter dated 17th August, 1981 (Annexure-I to the petition) that after giving a hearing to the representatives of respondent No. 4, a few leading public of the locality and also the Corporation, the Government was pleased to order that for the convenience of travelling public of Lahorighat-Dhing-Bhuragoan route the respondent No. 4 was allowed to operate one service daily from Basanaghat to Jagiroad and another from Jagiroad to Basanaghat with the condition that there should be no stoppage in between the above two points. In the said letter it was also mentioned that the above orders were passed in absence of the petitioners as they did not appear 'inspite of hearing being adjourned twice at their instance'. The petitioners have alleged that due to some mechanical defect of the car on the road the President of the Association who was coming from Nagoan arrived Dispur at 11.20 A.M. and came to know that hearing was over and order was passed. Thereafter on the same day the petitioners filed a petition for review of the order. It has been alleged that though hearing of the review petition was field on three occasions, it was not heard and ultimately the State of Assam informed the Secretary, Regional Transport Authority, Nagoan, by a letter dated 16th June, 1982 (Annexure-N to the petition) that the revision petition submitted by the petitioners cannot be entertained 'as there is no provision for submission of revision petition in respect of modification of the scheme in question'. Being aggrieved the petitioners have approached this Court for invoking the jurisdiction under Article 226 of the Constitution.

(3.) BEFORE we consider the contention of Mr. Bora, learned Counsel for the petitioners regarding violation of principle of natural justice in issuing the impugned order dated 16th June, 1982 by the Government of Assam (Annexure-N to the petition) we would like to consider the validity of the letter dated 17th August, 1981 (Annexure-I to the petition) by which the scheme of the notified route was modified. Though in the said letter dated 18th June, 1982 the provision of law under which the said scheme was modified has not been quoted, admittedly it was modified by the State Government by resorting to the provisions of Sub-section (2) of Section 68E of the Act. The provisions of said Sub-section (2) of Section 68E are clear and unambiguous and the State Government may, at any time, in the public interest modify the present scheme in question in respect of the notified route. But the scheme can be so modified by the State Government after giving an opportunity of being heard to the undertaking and any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification. Admittedly the petitioners are likely to be affected by the proposed modifications and they are entitled for an opportunity of being heard before any final order of modification is made. There is no dispute that the State Government issued notice on the petitioners regarding proposed modification and the matter came up for hearing on three occasions, twice petitioners prayed for time and on the last occasion, that is, on the date the final order was passed the petitioners could not appear on time.