The Kerala State Road Transport Corporation, Represented By Its Chairman v. Rajesh K. Jacob, S/o K. C. Chacko
2025-03-17
ANIL K.NARENDRAN, MURALEE KRISHNA S.
body2025
DigiLaw.ai
JUDGMENT : (Anil K. Narendran, J.) These writ appeals filed under Section 5(i) of the Kerala High Court Act, 1958, arise out of a common judgment of the learned Single Judge dated 06.11.2024 in W.P.(C)No.17469 of 2023 and connected matters. W.A.Nos.1886 of 2024 arising out of W.P.(C)No.17469 of 2023 and W.A.No.160 of 2025 arising out of W.P.(C)No.24655 of 2023 are filed by the State of Kerala. W.A.No.1980 of 2024 arising out W.P.(C)No.18290 of 2023 is filed by Forum for Justice (FFJ) KSRTC Employees and Family Welfare Society, a third party to that writ petition, after obtaining the leave of this Court by the order dated 05.12.2024 in I.A.No.1 of 2025. All other writ appeals are filed by KSRTC (Kerala State Road Transport Corporation). 2. By the order dated 14.11.2024 in W.A.No.1821 of 2024, the learned Special Government Pleader was directed to make available for the perusal of this Court the files relating to Ext.P14 notification dated 03.05.2023 issued by the State Government. Pursuant to the said direction, the learned Special Government 123 Pleader has made available for the perusal of this Court the files relating to Ext.P14 notification. 3. Heard detailed arguments of the learned Senior Counsel for KSRTC, as instructed by the learned Standing Counsel for KSRTC; the learned Special Government Pleader for the State and official respondents; the learned Senior Counsel for the party respondents in W.A.No.1821 of 2024, who are petitioners in W.P.(C)No.18290 of 2023; the respective counsel for the party respondents in other writ appeals; and also the learned counsel for the appellant in W.A.No.1980 of 2024. 4. Since the issues raised in all the writ appeals are common, arguments were heard treating W.A.No.1821 of 2024 arising out of W.P.(C)No.18290 of 2023 as the leading case. 5. W.P.(C)No.18290 of 2023 is one filed by respondents 1 to 5 in W.A.No.1821 of 2024, who are stage carriage operators conducting stage carriage service on the strength of the permits issued to their respective stage carriages, under the provisions of Chapter V of the Motor Vehicles Act, 1988, which deals with control of transport vehicles.
5. W.P.(C)No.18290 of 2023 is one filed by respondents 1 to 5 in W.A.No.1821 of 2024, who are stage carriage operators conducting stage carriage service on the strength of the permits issued to their respective stage carriages, under the provisions of Chapter V of the Motor Vehicles Act, 1988, which deals with control of transport vehicles. The details of the regular permits held by 124 the writ petitioners, as stated in paragraph 2 of the writ petition, are as follows; Sl.No. Name of Permit Holder Year of issue Permit No. Route 1 Rajesh K. Jacob 2001 5/1006/2001 Elamkad-Panathur 2 Rajesh K. Jacob 2001 13/24/2001 Kottayam-Panathur 3 K.T. Thomas 2000 5/10022/2000 Elamkad-Panathur 4 N.M. Biju 2001 5/30/2001 Kottayam- Ambayathodu 5 N.M. Biju 2000 5/30/2000 Kottayam- Ambayathodu 6 Vinod Thomas 1992 13/1090/1992 Chandanakampara- Kottayam 7 Joshy Thomas 1996 13/1090/1996 Kottayam-Panathur They filed W.P.(C)No.18290 of 2023, seeking a writ of certiorari to quash Ext.P9 notification dated 14.09.2020 and Ext.P14 notification dated 03.05.2023 issued by the State Government; a declaration that Ext.P14 notification dated 03.05.2023 has lapsed and is consequently unenforceable by virtue of the operation of sub-section (4) of section 100 of the Motor Vehicles Act, 1988; a declaration that clause (a) of Rule 246 of the Kerala Motor Vehicles Rules, 1989, in so far as it insists that objections to the draft scheme are to be filed within 30 days of its publication is ultra vires sub-section (2) of Section 102 of the Act; a writ of 125 mandamus commanding the 2 nd and 4 th respondents in the writ petition to consider and pass final orders on the applications for renewal of regular permits made by the petitioners, untrammelled by Ext.P14 scheme, and in the light of Ext.P7 decision of this Court in Kerala State Road Transport Corporation v. Saju Varkey and others [ 2018 (4) KHC 617 ] ; and a writ of mandamus commanding the 3 rd and 5 th respondents in the writ petition to ensure status quo of the operation of the petitioners’ stage carriage services, by issuing temporary permits under Section 87(1)(d) of the Motor Vehicles Act, 1988, untrammelled by Ext.P14 scheme, pending disposal of their applications for renewal of permit. 6. In W.P.(C)No.18290 of 2023, the 6 th respondent KSRTC filed a counter affidavit dated 09.06.2023, opposing the reliefs sought for, producing therewith Exts.R6(a) to R6(d) documents.
6. In W.P.(C)No.18290 of 2023, the 6 th respondent KSRTC filed a counter affidavit dated 09.06.2023, opposing the reliefs sought for, producing therewith Exts.R6(a) to R6(d) documents. The petitioners have filed a reply affidavit dated 16.06.2023, producing therewith Ext.P15 document. Along with I.A.No.1 of 2023, the petitioners have produced Exts.P16 to P17 documents. The 1 st respondent State filed a counter affidavit dated 22.07.2023 in the connected writ petition, i.e., W.P.(C)No.18105 of 2023, 126 opposing the reliefs sought for, which was adopted in W.P.(C)No.18290 of 2023, by filing an adoption memo by the learned Special Government Pleader. Along with I.A.No.3 of 2023 filed by the 6 th respondent KSRTC, Ext.R6(e) document was placed on record. 7. After considering the rival contentions, in the light of the relevant provisions under the Motor Vehicles Act and the Kerala Motor Vehicles Rules, the learned Single Judge concluded in the impugned judgment that, as evident from Ext.P14 notification, no reasons, even in brief, are coming forth for rejecting the objections filed by the writ petitioners to the proposed scheme in the draft notification, i.e., Ext.P9 notification dated 14.09.2020, except for saying that the objections were considered, and objectors were heard as mentioned in the final notification, i.e., Ext.P14 notification dated 03.05.2023. The counter affidavit filed on behalf of the State Government does not disclose any material suggesting in what manner the objections were considered and rejected and the reasons thereof. The proposed scheme for modification of the existing scheme was published on 14.09.2020, vide Ext.P9 notification, and the 127 modified scheme was published verbatim as the proposed scheme, on 03.05.2023 vide Ext.P14 notification. If the State Government was of the opinion that the modification of the existing scheme was in the public interest, then the final modified scheme ought to have been published immediately, after hearing the objectors. Here, the final notification, i.e., Ext.P14 notification, came more than two years and eight months after the date of the proposed scheme. A scheme cannot be said to be invalid, if it is the same as was proposed. However, the order must disclose that due consideration has been given to the objections and some reasons must come forth for rejecting the objections. 8.
A scheme cannot be said to be invalid, if it is the same as was proposed. However, the order must disclose that due consideration has been given to the objections and some reasons must come forth for rejecting the objections. 8. In the impugned judgment, the learned Single Judge noticed that, in B.A. Linga Reddy v. Karnataka State Transport Authority [ (2015) 4 SCC 515 ] the Apex Court held that the State Government acts as a quasi-judicial authority while considering the objections. In the absence of reasons for rejecting the objections, the final scheme was rendered illegal. The learned Single Judge held that the final notification, i.e., Ext.P14 notification, suffers from illegality, inasmuch as there is nothing on record to suggest that due consideration was given to the objections filed 128 by the petitioners and others and that, they were rejected by some reasoned order. 9. The learned Single Judge found that the submission advanced by the learned Senior Counsel for KSRTC that, if the scheme is published in Form F of Appendix-I of the Kerala Motor Vehicles Rules, it would be sufficient compliance with the requirement of the law, has no force. The final scheme is published in Form F, but the reasons for disposing/rejecting the objections must come forth from the order passed by the competent authority, who considered the objections and heard the objectors. Before the learned Single Judge, it was pointed out that the proposed scheme was not in compliance with a mandatory requirement of Rule 246 of the Kerala Motor Vehicles Rules, inasmuch as, the proposed scheme published on 14.09.2020, vide Ext.P9 notification, did not mention the place, date and time for hearing objections, which is the mandatory requirement of Rule 246. The proposed notification in Form E was defective, and therefore, the final notification cannot be said to be in accordance with the law. The learned Single Judge found substance in the said submission of the learned counsel for the petitioners. In view of the said finding, 129 the learned Single Judge allowed the writ petitions by setting aside Ext.P14 notification dated 03.05.2023. 10.
The learned Single Judge found substance in the said submission of the learned counsel for the petitioners. In view of the said finding, 129 the learned Single Judge allowed the writ petitions by setting aside Ext.P14 notification dated 03.05.2023. 10. The learned Senior Counsel for KSRTC, as instructed by the learned Standing Counsel for KSRTC, and also the learned Special Government Pleader contended that the impugned judgment dated 06.11.2024 of the learned Single Judge in W.P.(C)No.17469 of 2023 and connected matters is opposed to law and facts of the case. Hence interference of this Court in the exercise of the appellate jurisdiction under Section 5(i) of the Kerala High Court Act, 1958 is warranted. The learned Single Judge failed to note the law laid down by the Constitution Bench in H.C.Narayanappa v. State of Mysore [ AIR 1960 SC 1073 ] wherein it was held that a scheme is not open to challenge either on the ground that another view is possible or that detailed reasons have not been given for upholding or rejecting the objections put forth in the representations made to the State Government. The learned Single Judge failed to appreciate in the right perspective the arguments advanced by the State Government and KSRTC, before concluding that there is nothing on record to suggest that due consideration was given to the 130 objections filed by the writ petitioners and others and as such, Ext.P14 notification dated 03.05.2023 cannot be sustained in law. They pointed out that Ext.P14 notification has been published in the statutory format in Form F, which does not provide any space for stating reasons for rejecting or accepting the objections raised in the representations made to the State Government. The factual aspects and the law laid down by the Apex Court in B.A.Linga Reddy v. Karnataka State Transport Authority [(2015) 4 SCC 515] has no application to the facts and circumstances of the case on hand, and the said aspect was also not properly considered by the learned Single Judge while rending the impugned judgment. The learned Single Judge failed to note that Ext.P9 notification dated 14.09.2020 was published at a time when there were restrictions due to the spread of the Covid-19 pandemic. The Central Government, as well as the State Government, issued various guidelines from 26.03.2020 onwards, under the provisions of the Disaster Management Act, 2005, for the containment of the Covid-19 pandemic.
The learned Single Judge failed to note that Ext.P9 notification dated 14.09.2020 was published at a time when there were restrictions due to the spread of the Covid-19 pandemic. The Central Government, as well as the State Government, issued various guidelines from 26.03.2020 onwards, under the provisions of the Disaster Management Act, 2005, for the containment of the Covid-19 pandemic. At the time of issuance of Ext.P9 notification such guidelines were in force, as per which all public outdoor gatherings with more than 20 people 131 and indoor events with more than 10 people were banned. In view of the provisions contained in the Disaster Management Act, the orders issued under the provisions of the said Act were having an overriding effect upon other provisions of law. Therefore, the learned Single Judge went wrong in interfering with Ext.P14 notification dated 03.05.2023 on the ground that Ext.P9 notification published on 14.09.2020 did not mention the place, date and time for hearing objections, which is a mandatory requirement of Rule 246 of the Kerala Motor Vehicles Rules, 1989. The learned Single Judge failed to note that about 700 objections received by the State Government, pursuant to Ext.P9 notification, were considered by the State before issuing Ext.P14 notification, as discernible from the files, and as such there is substantial compliance of Rule 246 of the Kerala Motor Vehicles Rules. Relying on the judgment of a learned Single Judge of this Court in Kasaragode District Bus Owners Association v. State of Kerala [ 1990 (2) KLT 830 ] , they contended that so long as the scheme gives the requirements under the statute, which the Section itself prescribes, there will be a prima facie compliance for the purpose of validity of the scheme. The statute does not direct 132 the disclosure of the materials which are the basis for the formation of the opinion by the State. They contended further that the writ petitioners have no locus standi to challenge Ext.P14 notification as they are not saved operators, since their right to operate on long-distance routes exceeding 140 Kms.
The statute does not direct 132 the disclosure of the materials which are the basis for the formation of the opinion by the State. They contended further that the writ petitioners have no locus standi to challenge Ext.P14 notification as they are not saved operators, since their right to operate on long-distance routes exceeding 140 Kms. has already been extinguished by operation of law as per Ext.R6(a) Super Class Scheme dated 16.07.2013 and Ext.R6(b) notification dated 15.03.2017, i.e., Kerala Motor Vehicles (1 st Amendment) Rules, 2017, whereby sub-clause (oa) in Rule 2 of the said Rules was re- lettered as sub-clause (ob) and before sub-clause (ob) as so re- lettered, sub-clause (oa) as per the said amendment was inserted. As per sub-clause (oa) so inserted, ’Ordinary Limited Stop Service’ means a service, which is operated on a route having a distance of not exceeding 140 Kms., with limited number of stops, having at least one stop in every fare stage. The challenge made by the private operators against the said amendment was repelled by a Division Bench of this Court in Kerala State Road Transport Corporation v. Saju Varkey and others [ 2018 (4) KLJ 145 ] The said legal aspect was not considered by the learned Single Judge while rendering the impugned judgment. The learned counsel for the appellant in W.A.No.1980 of 2024 adopted the arguments advanced by the learned Senior Counsel for KSRTC and the learned Special Government Pleader. 11. On the other hand, the learned Senior Counsel for the party respondents-writ petitioners in W.A.No.1821 of 2024 and the respective counsel for the party respondents-writ petitioners in the connected writ appeals contended that the judgment of the learned Single Judge, which is one rendered after taking note of the legal and factual contentions raised by both sides, warrants no interference in these writ appeals. 12.
12. The learned Senior Counsel for the party respondents in W.A.No.1821 of 2024 and also the respective counsel for the party respondents in the connected matters pointed out that the contention raised by the learned Senior Counsel for KSRTC and the learned Senior Government Pleader on the locus standi of the private operators-writ petitioners to challenge Ext.P14 notification dated 03.05.2023, on the ground that their right to operate on long-distance routes have already been extinguished by the operation of law as per Ext.R6(a) Super Class Scheme and Ext.R6(b) notification, whereby sub-clause (oa) in Rule 2 of the said Rules was re-lettered as sub-clause (ob) and before sub- clause (ob) as so re-lettered, sub-clause (oa) as per the said amendment was inserted, was never raised before the learned Single Judge. In response to the above argument, the learned Senior Counsel for KSRTC and also the learned Special Government Pleader would point out the specific stand taken by KSRTC in paragraph 5 of the counter affidavit dated 09.06.2023, producing therewith a copy of Exts.R6(a) and R6(b) notifications. 13. On the rival contentions raised at the Bar on the above aspect, we notice that, as pointed out by the learned Senior Counsel for the party respondents in W.A.No.1821 of 2024 and the respective counsel for the party respondents in the connected matters, a reading of the impugned judgment dated 06.11.2024 of the learned Single Judge would not show that such a contention was ever raised during the course of argument, before the learned Single Judge. Moreover, as discernible from the files relating to Ext.P14 notification, which was made available for the perusal of this Court, the objections received from the private operators and others are not confined to those made by long-distance private operators alone. In such circumstances, we deem it appropriate to leave open the said contention to be raised and considered by the appropriate authority at the appropriate stage. 14.
In such circumstances, we deem it appropriate to leave open the said contention to be raised and considered by the appropriate authority at the appropriate stage. 14. On the challenge made against Ext.P14 notification dated 03.05.2023, which was accepted in the impugned judgment dated 06.11.2024 of the learned Single Judge in W.P.(C)No.17469 of 2023, the learned Senior Counsel for the party respondents in W.A.No.1821 of 2024 and the respective counsel for the party respondents in the connected matters pointed out that the learned Single Judge rightly found in the judgment that there was no due consideration of the objections raised in the representations made by the petitioners and others to Ext.P9 notification dated 14.09.2020. The finding of the learned Single Judge on the above aspect, taking note of the law laid down by the Apex Court in B.A. Linga Reddy v. Karnataka State Transport Authority [(2015) 4 SCC 515] , warrants no interference in these writ appeals. Mere publication of Ext.P14 notification in Form F would not be sufficient compliance of the requirements of Rule 246 of the Kerala Motor Vehicles Rules, when there is nothing on the files to suggest that due consideration was given to the objections contained in the representations made by the petitioners and others in response to Ext.P9 notification dated 14.09.2020. When the procedure for framing a scheme under the provisions of Section 99 of the Motor Vehicles Act, read with the relevant provisions under the Kerala Motor Vehicles Rules and that for modification or cancellation of an approved scheme under Section 102 of the said Act read with the relevant provisions under the said Rules are different, the contentions raised by the learned Senior Counsel for KSRTC and the learned Special Government Pleader, placing reliance on the judgment of a learned Single Judge in Kasaragod District Bust Owners Association v. State of Kerala [ 1990 (2) KLT 830 ] which was one rendered in the context of Section 99 of the Motor Vehicles Act, read with Section 236 of the Kerala Motor Vehicles Rules, can only be repelled as untenable. 15. Chapter VI of the Motor Vehicles Act, 1988 deals with special provisions relating to State Transport Undertakings. As per Section 97 of the Act, in Chapter VI, unless the context otherwise requires, ‘road transport service’ means a service of motor vehicles carrying passengers or goods or both by road for hire or reward.
15. Chapter VI of the Motor Vehicles Act, 1988 deals with special provisions relating to State Transport Undertakings. As per Section 97 of the Act, in Chapter VI, unless the context otherwise requires, ‘road transport service’ means a service of motor vehicles carrying passengers or goods or both by road for hire or reward. The said provision corresponds to Section 68-A of the Motor Vehicles Act, 1939 (Act IV of 1939). As per Section 98 of the Act, the provisions of Chapter VI and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law. The said provision corresponds to Section 68-B of Act IV of 1939. 16. Section 99 of the Act deals with preparation and publication of proposal requiring road transport service of a State Transport Undertaking. As per sub-section (1) of Section 99, where any State Government is of opinion that for the purpose of providing an efficient, adequate, economical and properly co- ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State Government may formulate a proposal regarding a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and other relevant particulars respecting thereto and shall publish such proposal in the Official Gazette of the State formulating such proposal and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deem fit.
As per sub- section (2) of Section 99, notwithstanding anything contained in sub-section (1), when a proposal is published under that sub- section, then from the date of publication of such proposal, no permit shall be granted to any person, except a temporary permit during the pendency of the proposal and such temporary permit shall be valid only for a period of one year from the date of its issue or till the date of final publication of the scheme under Section 100, whichever is earlier. The said provision corresponds to Section 68-C of Act IV of 1939. 17. Section 100 of the Act deals with objection to the proposal. As per sub-section (1) of section 100, on the publication of any proposal regarding a scheme in the Official Gazette and in not less than one newspaper in the regional language circulating in the area or route which is to be covered by such proposal any person may, within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Government. As per sub-section (2) of Section 100, the State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, if they so desire, approve or modify such proposal. As per sub-section (3) of Section 100, the scheme relating to the proposal as approved or modified under sub-section (2) shall then be published in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become final on the date of its publication in the Official Gazette and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route. As per the proviso to sub- section (3) of Section 100, no such scheme which relates to any inter-state route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government.
As per the proviso to sub- section (3) of Section 100, no such scheme which relates to any inter-state route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government. As per sub-section (4) of Section 100, 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. As per Explanation to sub-section (4) of Section 100, 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. Section 100 of the Act corresponds to Section 68-D of Act IV of 1939. 18. Section 101 of the Act deals with operation of additional services by State Transport Undertaking in certain circumstances. As per Section 101, notwithstanding anything contained in Section 87, a State Transport Undertaking may, in the public interest operate additional services for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings. As per the proviso to Section 101, the State Transport Undertaking shall inform about the operation of such additional services to the concerned Transport Authority without delay. 19. Section 102 of the Act deals with cancellation or modification of scheme. As per sub-section (1) of Section 102, the State Government may, at any time, if it considers necessary, in the public interest so to do, modify any approved scheme after giving (i) the State Transport Undertaking; and (ii) any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification, an opportunity of being heard in respect of the proposed modification.
As per sub-section (2) of Section 102, the State Government shall publish any modification proposed under sub-section (1) in the Official Gazette and in one of the newspapers in the regional languages circulating in the area in which it is proposed to be covered by such modification, together with the date, not being less than thirty days from such publication in the Official Gazette, and the time and place at which any representation received in this behalf will be heard by the State Government. The said provision corresponds to Section 68-E of Act IV of 1939. 20. Section 103 of the Act deals with issue of permits to State Transport Undertakings. As per sub-section (1) of Section 103, where, in pursuance of an approved scheme, any State Transport Undertaking applies in such manner as may be prescribed by the State Government in this behalf for a stage carriage permit or a goods carriage permit or a contract carriage permit in respect of a notified area or notified route, the State Transport Authority in any case where the said area or route lies in more than one region and the Regional Transport Authority in any other case shall issue such permit to the State Transport Undertaking, notwithstanding anything to the contrary contained in Chapter V. As per sub-section (2) of Section 103, for the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the State Transport Authority or, as the case may be, the Regional Transport Authority concerned may, by order, (a) refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending; (b) cancel any existing permit; (c) modify the terms of any existing permit so as to (i) render the permit ineffective beyond a specified date; (ii) reduce the number of vehicles authorised to be used under the permit; (iii) curtail the area or route covered by the permit insofar as such permit relates to the notified area or notified route. As per sub-section (3) of Section 103, for the removal of doubts, it is hereby declared that no appeal shall lie against any action taken or order passed by the State Transport Authority or any Regional Transport Authority under sub-section (1) or sub-section (2). 21.
As per sub-section (3) of Section 103, for the removal of doubts, it is hereby declared that no appeal shall lie against any action taken or order passed by the State Transport Authority or any Regional Transport Authority under sub-section (1) or sub-section (2). 21. Section 104 of the Act deals with restriction on grant of permits in respect of notified area or notified route. As per Section 104, where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme. As per the proviso to Section 104, where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of the area or route. The said provision corresponds to Section 68-FF of Act IV of 1939. 22. Section 107 of the Act deals with power of State Government to make rules. As per sub-section (1) of Section 107, the State Government may make rules for the purpose of carrying into effect the provisions of Chapter VI.
The said provision corresponds to Section 68-FF of Act IV of 1939. 22. Section 107 of the Act deals with power of State Government to make rules. As per sub-section (1) of Section 107, the State Government may make rules for the purpose of carrying into effect the provisions of Chapter VI. As per sub-section (2) of Section 107, in particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely, (a) the form in which any proposal regarding a scheme may be published under Section 99; (b) the manner in which objections may be filed under sub-section (1) of Section 100; (c) the manner in which objections may be considered and disposed of under sub-section (2) of Section 100; (d) the form in which any approved scheme may be published under sub-section (3) of Section 100; (e) the manner in which application under sub-section (1) of Section 103 may be made; (f) the period within which the owner may claim any article found left in any transport vehicle under Section 106 and the manner of sale of such article; (g) the manner of service of orders under this Chapter; (h) any other matter which has to be, or may be, prescribed. The said provision corresponds to Section 68-I of Act IV of 1939. 23. In G.T. Venkataswamy Reddy v. State Transport Authority [ (2016) 8 SCC 402 ] the question referred for consideration by the Constitution Bench of the Apex Court was whether on publication of an approved scheme under the provisions of the Motor Vehicles Act, 1939 (Act IV of 1939), the number of trips of the vehicles of the existing operations can be increased [both by number of trips and vehicles] by granting variation of a permit even when the existing operators are allowed to carry on their business as on the date of the publication of the scheme.
After a detailed reference to Section 57(8) under Chapter IV of Act IV of 1939 and Sections 68-B, 68-C, 68-D, 68-E, 68-F(1- D) and 68-FF under Chapter V of Act IV of 1939, the Constitution Bench held that Chapter IV-A of Act IV of 1939 supersedes any inconsistent provisions in Chapter IV; the policy of the legislature is clear from Section 68-C that the State Transport Undertaking may initiate a scheme for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service to be run and operated by the State Transport Undertaking in relation to any area or route or portion thereof. It may do so if it is necessary in the public interest; a grant of variation under Section 57(8) will be as good as a grant of a new permit; Section 57(8) is controlled by Section 68-FF falling under Chapter IV-A, by virtue of the superseding effect of Section 68-B also falling under Chapter IV-A; once a scheme formulated under Section 68-D gets approved under Section 68-D(3) of Chapter IV-A, then all the permits in the route/area covered by the scheme will get frozen by virtue of the operation of Section 68-FF; the effect of Section 68-FF can be altered/modified/cancelled only in the manner as provided for under Section 68-E and in no other manner; by virtue of the above, either a grant of a new permit or the variation of an existing permit of private operator cannot be ordered in respect of an area or route covered by an approved scheme; the proposition of law laid down by Karnataka State Road Transport Corporation v. B.A. Jayaram [ (1984) Supp.
SCC 244 ] impliedly stood overruled in Adarsh Travels Bus Service v. State of U.P. [ (1985) 4 SCC 557 ] ; an increase in the number of trips or vehicles which were being run under the existing exempted permit under a scheme will amount to grant of a new permit to operate one more stage carriage which is not permissible under Section 68-FF is not permissible under Section 68-FF; the economy and co-ordination, two of the factors, which govern the approved scheme, will be seriously infringed if the variation is to be granted of the existing permit condition; even if there is an inter-state agreement under Section 63 of the Act for increasing the number of trips, such an agreement cannot override the provisions of Chapter IV-A by virtue of Section 68-B of the Act. Section 63 being in Chapter IV of the Act, the scheme approved under Chapter IV-A will prevail over it; the approved scheme will exclude the operation of other stage carriage services on the route/area covered by the Scheme, except those whose names are mentioned in the scheme and to the extent to which such exception is allowed; the provisions in Chapter IV-A are devised to override the provisions of Chapter IV and it is expressly so enacted, the provisions of Chapter IV-A are clear and complete regarding the manner and effect of the ‘takeover’ of the operation of a road transport service by the State Transport Undertaking in relation to any area or route or portion thereof - Adarsh Travels Bus Service [ (1985) 4 SCC 557 ] ; a necessary consequence of those provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit, as originally granted to him, covered the notified route or area - Adarsh Travels Bus Service [(1985) 4 SCC 557] . Having regard to the above propositions, the Constitution Bench held that the decision in Karnataka State Road Transport Corporation v. B.A. Jayaram [(1984) Supp.
Having regard to the above propositions, the Constitution Bench held that the decision in Karnataka State Road Transport Corporation v. B.A. Jayaram [(1984) Supp. SCC 244] is no longer a good law and the decision in Pandiyan Roadways Corporation Ltd. v. M.A. Egappan [(1987) 2 SCC 47] stands approved, which is in tune with the Constitution Bench decision in Adarsh Travels Bus Service [ (1985) 4 SCC 557 ] and the observations made in R. Raghuram v. P. Jayarama Naidu [(1990) Supp. SCC 361] stands approved. 24. In Adarsh Travels Bus Service [ (1985) 4 SCC 557 ] the question placed for the consideration by the Constitution Bench of the Apex Court was, where a route is nationalised under Chapter IV-A of the Motor Vehicles Act, 1939 (Act IV of 1939), whether a private operator with a permit to ply a stage carriage over another route, but which has a common overlapping sector with the nationalised route, can ply his vehicle over that part of the overlapping common sector if he does not pick up or drop passengers on the overlapping part of the route. The Constitution Bench noticed that Chapter IV-A of Act IV of 1939 was bodily introduced into it by Amending Act 100 of 1956. It further underwent substantial amendments by Act 56 of 1970, which came into effect on 02.03.1970. The policy of the Legislature is clear from Section 68-C that the State Transport Undertaking may initiate a scheme for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service to be run and operated by the State Transport Undertaking in relation to any area or route or portion thereof. It may do so if it is necessary in the public interest. While the provisions of Chapter IV-A are devised to override the provisions of Chapter IV and it is expressly so enacted, the provisions of Chapter IV-A are clear and complete regarding the manner and effect of the ‘take- over’ of the operation of a road transport service by the State Transport Undertaking in relation to any area or route or portion thereof. While, on the one hand, the paramount consideration is the public interest, the interests of the existing operators are sufficiently taken care of and slight inconveniences to the travelling public, as may be inevitable, are sought to be reduced to a minimum.
While, on the one hand, the paramount consideration is the public interest, the interests of the existing operators are sufficiently taken care of and slight inconveniences to the travelling public, as may be inevitable, are sought to be reduced to a minimum. To begin with, the State Transport Undertaking must think it necessary in the public interest to provide efficient, adequate, economical and properly co-ordinated State transport services in relation to any area or route or portion thereof, to the exclusion complete or partial of other persons or otherwise. This is the initial requirement for the initiation of a scheme. Even at that stage, the State Transport Undertaking is required to apply its mind to the question of complete or partial exclusion of other persons or otherwise from operating transport services in relation to any area or route or portion thereof. There is ample and sufficient guidance to the State Transport Undertaking for the application of mind. Thereafter, objections to the scheme are to be heard. All existing operators providing transport facilities along or near the area or the route proposed to be covered by the scheme are to be heard. Therefore, it will be open to any operator who is likely to be affected by total or partial exclusion to object to the scheme and suggest such modification as may protect him. A hearing is required to be given and the hearing is not an empty formality as decisions of the Court have shown. Even that is not the end of the matter. Even thereafter, the State Transport Undertaking, as well as the State Government, are empowered to cancel or modify the scheme under Section 68-E. In other words, if in the actual working of the approved scheme, any difficulty or hardship is experienced by the public, or for that matter by other operators, such difficulty may be removed and hardship relieved by appropriate action under Section 68-E. Both Section 68-F and the proviso to Section 68-FF provide for the issue of temporary permits to private operators if the State Transport Undertaking has not applied for a permit temporary or otherwise in respect of a scheme published or approved.
Thus, the Constitution Bench found that at every stage, abundant provision is made to protect the public interest as well the interest of private operators by providing for consideration and reconsideration of any problems that may arise out of a proposed, published or approved scheme. It is in that context that the provisions under Section 68-C and Section 68-FF will have to be construed. 25. In G.T. Venkataswamy Reddy [ (2016) 8 SCC 402 ] the Constitution Bench, after a detailed analysis of Section 57 under Chapter IV of Act IV of 1939, analysed other sections, in the foremost, Section 68-B of the Act, which falls under Chapter IV-A, and which states that all the provisions contained in Chapter IV-A shall have supervening effects on any inconsistent provisions contained in Chapter IV or any other law for the time being in force or in any instrument having effect by virtue of any such law. Under Chapter IV, Sections 42 to 68 of the Act have been listed. Insofar as Section 57(8) of the Act is concerned, the Constitution Bench noticed that, in the manner in which the said provision has been interpreted, there will be no inconsistency with any of the provisions contained in Chapter IV-A. Therefore, Section 57 will apply in all force even in respect of the prescription contained in the provisions under Chapter IV-A, viz., Sections 68-A to 68-I of the Act. The Constitution Bench then proceeded to analyse Section 68-C of the Act, keeping the said broad statutory prescription vis- à-vis Section 57 of the Act, and found that the formulation of a scheme is to be prepared and published by a State Transport Undertaking in respect of the services to be provided in any area or route to be covered. The underlying object for such formulation of a scheme for its preparation and publication must be for providing an efficient, adequate, economical and properly co- ordinated road transport service with the paramount consideration of public interest, and such scheme should be prepared and published. Section 68-C of the Act, therefore, at the very inception of the formulation of a scheme by a State Transport Undertaking, should have the basic consideration of efficient, adequate, economical and properly co-ordinated transport service in the public interest.
Section 68-C of the Act, therefore, at the very inception of the formulation of a scheme by a State Transport Undertaking, should have the basic consideration of efficient, adequate, economical and properly co-ordinated transport service in the public interest. Once such a scheme is formulated with the above avowed objects in mind and is notified under Section 68-D, on the publication of such a scheme in the Official Gazette as well as in the newspaper in the regional language circulating in the area or route, which is proposed to be covered by such scheme, every person who is already providing transport facility in that area or route or any association representing persons interested in the provision of road transport facilities recognised by the State as well as the local authority or police authority, who are also located in that area or route, will be entitled to raise their objections or their representations within 30 days from the date of publication to the State Government. Under sub-section (2) of Section 68-D of the Act, the State Government after considering the objections and after giving an opportunity of hearing to the objector or his representative as well as the representatives of the State Transport Undertakings can either approve the scheme as proposed or give a modified scheme. Under Section 68-E of the Act, the scheme can be cancelled in the form in which it was approved or can be modified by following the very same procedure prescribed under Sections 68-C and 68-D of the Act. However, the State Transport Undertaking, with the previous approval of the State Government, can modify the scheme without following the procedure laid down in Sections 68-C and 68-D of the Act, under the proviso to Section 68-E. That apart under sub-section (2) of Section 68-E of the Act, the State Government is fully empowered to modify any scheme published under sub-section (3) of Section 68-D of the Act after giving an opportunity of hearing to the State Transport Undertaking, as well as, to any other person who in the opinion of the State Government is likely to be affected by the proposed modification. Once the approved scheme comes into effect, under Section 68-F of the Act, the State Transport Undertakings can be issued with the required permits. 26. In Pattabhirami Reddy v. Secretary to Govt.
Once the approved scheme comes into effect, under Section 68-F of the Act, the State Transport Undertakings can be issued with the required permits. 26. In Pattabhirami Reddy v. Secretary to Govt. [AIR 1988 AP 129] , one of the contentions raised before a Full Bench of the High Court of Andhra Pradesh was that under Section 68-D of the Motor Vehicles Act, 1939 (Act IV of 1939) the objections should have been disposed of giving reasons in a judicial way, and the copy of the orders passed by the Minister who heard the objections, should have been furnished to the petitioners, as otherwise, it would be violative of judicial procedure and the principles of natural justice. Dealing with that contention, the Full Bench found that the Government hearing the objections and passing orders under Section 68-D of the Act is only a quasi- judicial authority, not a judicial authority. The procedure to be followed is as laid down in Chapter IV-A of the Act. There is no provision in Chapter IV-A in regard to the manner in which the objections are to be disposed of. If a fair hearing has been given to the parties, and the representations of the Corporation and the objections of the operators and others had been given due consideration, that would be sufficient compliance in terms of Section 68-D of the Act. The Full Bench held that the petitioners are not entitled either to insist on a detailed discussion in regard to the reasons which led to the rejection of each of their objections or to have a copy of such order. The order passed by the Government shows that the salient features in the representations and objections had been considered, and it was only after satisfying himself of the feasibility of the schemes that the Minister accorded approval to them. 27. in M. Madan Mohan Rao v. Union of India [(2002) 6 SCC 348] the controversy raised before a Two-Judge Bench of the Apex Court relates to the validity of the notification issued by the Government of Andhra Pradesh on 27.01.2000 approving the schemes submitted by the Andhra Pradesh State Road Transport Corporation for exclusive operation of stage carriage services on certain routes, in exercise of the powers conferred by Section 100 of the Motor Vehicles Act, 1988.
The pari materia provisions of Sections 99 and 100 of the Motor Vehicles Act, 1988 (new Act) are Sections 68-C and 68-D of the Motor Vehicles Act, 1939 (old Act). The Apex Court found that it is clear from the provisions in sub- section (1) of Section 99(1) of the new Act that the State Government is mandated to form an opinion that for the purpose of providing an efficient, adequate, economical and properly co- ordinated road transport service it is necessary in the public interest that road transport services in general or any particular class of such services in relation to any area or route or operation thereof should be run and operated by the State Transport Undertaking whether to the exclusion, complete or partial, of other persons or otherwise before publishing the proposal in the Official Gazette and in local newspapers. In sub-section (1) of Section 100 it is provided that on the publication of any proposal regarding a scheme in the Official Gazette and in newspapers, any person may file objections to it before the State Government within 30 days from the date of its publication in the Official Gazette. In sub- section (2) of Section 100 a provision is made that the State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, if they so desire, approve or modify the proposal. On reading the above statutory provisions together it is clear that the objection which may be raised by any person to the proposed nationalisation scheme must relate to the matters about which the State Government is required to form an opinion under the statute i.e. for the purpose of providing an efficient, adequate, economical and proper transport service it is necessary in the public interest that the road transport services on the routes should be run and operated by the State Transport Undertakings to the complete or partial exclusion of other persons. Therefore, it follows that the objection to be filed by an objector should be related to only these relevant factors and he is not entitled to raise any other objection which is irrelevant and extraneous to the provisions of the statute. 28.
Therefore, it follows that the objection to be filed by an objector should be related to only these relevant factors and he is not entitled to raise any other objection which is irrelevant and extraneous to the provisions of the statute. 28. In the exercise of the rule-making powers under Section 107 of the Motor Vehicles Act, 1988, the State Government made the following provisions in the Kerala Motor Vehicles Rules, 1988, for the purpose of carrying into effect the provisions of Chapter VI, namely, the form in which any proposal regarding a scheme may be published under Section 99; the manner in which objections may be filed under sub-section (1) of Section 100; the manner in which objections may be considered and disposed of under sub-section (2) of Section 100; the form in which any approved scheme may be published under sub-section (3) of Section 100; etc. 29. Rule 236 of the Kerala Motor Vehicles Rules deals with the manner of notifying schemes. As per Rule 236, every scheme proposed by the State Government regarding the operation of road transport services by the State Transport Undertaking under Section 99 of the Act shall be in Form A and shall be published in the Official Gazette and in not less than one daily newspaper in the regional language circulating in the area involved. A copy of each of every scheme as proposed to be published in the Gazette shall be forwarded to the State Transport Undertaking, to the Secretary of the State Transport Authority and the Regional Transport Authority concerned. Copies of the scheme shall, also be put up on the notice boards of the offices of the State Transport Undertaking, the State Transport Authority and the Regional Transport Authority concerned. 30.
Copies of the scheme shall, also be put up on the notice boards of the offices of the State Transport Undertaking, the State Transport Authority and the Regional Transport Authority concerned. 30. Rule 237 of the Rules, which deals with the manner of filing objections, reads thus; “Rule 237: Manner of filing objections.- (1) Any person affected by the scheme published under Section 99 of the Act may within 30 days from the date of publication of the scheme in the Official Gazette file his objections thereto before the Secretary to Government, Public Works and Transport Department, Secretariate, Trivandrum and shall simultaneously forward a copy each of the objections to the State Transport Undertaking, the State Transport Authority and the Regional Transport Authority concerned furnishing the following particulars:- (a) Name and address of the objector; (b) Memorandum setting forth concisely the grounds of objection, signed by the objector or his authorised agent, and accompanied by six additional copies; (c) Whether he is an operator along or near the area or route included in the scheme notified by the State Government; (d) if reply to item (c) is in the affirmative, the following particulars shall be furnished:- (i) Route with termini and intermediate stations, for which the operator holds the permit; (ii) Route length - in Kilometre; (iii) Extent of overlapping on the route included in the scheme with the overlapping distance; (iv) Number of single trips operated in a day; (v) Timings of services operated; (vi) Registration number of vehicles operated; (vii) Type and seating capacity of vehicles operated; (viii) Date of expiry of the permit; (ix) Arrangements made for housing; maintenance and repairs of vehicles; (x) Number of persons employed - (driver, conductor, checking inspector, cleaner, etc.) showing their qualification age and length of service; (xi) Details of machinery and equipments and reserve buses owned by the operator; and (xii) Any other particulars to indicate the efficiency of the services operated by the operator. (2) No objection in respect of any scheme shall be considered, unless it is made in accordance with sub-rule (1).” (underline supplied) 31. Rule 238 of the Rules deals with consideration of objections. As per clause (a) of Rule 238, the Chief Minister or any other Minister nominated by him or any officer nominated by the Government in this behalf, shall be the authority to consider the objections filed and hear the objectors.
Rule 238 of the Rules deals with consideration of objections. As per clause (a) of Rule 238, the Chief Minister or any other Minister nominated by him or any officer nominated by the Government in this behalf, shall be the authority to consider the objections filed and hear the objectors. As per clause (b) of Rule 238, the representatives of the State Transport Undertaking and the objectors or their authorised representative, if they so desire, shall be heard. The place, date and time of the hearing shall be communicated to the concerned persons at least fourteen days before the date of the hearing. 32. Rule 239 of the Rules deals with the manner of publishing the approved scheme. As per Rule 239, any scheme for road transport services as approved or modified under sub-section (2) of Section 100 of the Act shall be notified in Form B in the Official Gazette and in one daily newspaper in the same manner as provided in Rule 236. 33. Rule 240 of the Rules deals with the manner of making application for permits. As per sub-rule (1) of Rule 240, every application for a permit by the State Transport Undertaking under Chapter VI of the Act, shall be in the following forms, namely; (a) in respect of a pucca permit - Form P.St.S.A. (STU); (b) in respect of a temporary permit - Form P.Tem.A. (STU). As per sub-rule (2) of Rule 240, the fee for every stage carriage permit shall be the same as prescribed in Rule 165. Rule 241 of the Rules deals with the issue of permit. As per Rule 241, on receipt of an application for a permit under Rule 240, the Transport Authority shall issue the permit, on production of the records relating to the vehicle. 34. Rule 242 of the Rules deals with the cancellation of existing permits. As per clause (a) of Rule 242, the State or Regional Transport Authority concerned shall, before making an order either cancelling any existing permit under clause (b) or modifying the terms of any existing permit under clause (c) of sub-section (2) of Section 103 of the Act, for the purpose of giving effect to an approved scheme, issue notice in Form C informing the affected operators, of the action proposed to be taken and giving them time of not less than thirty days to make representations against the proposed action.
As per clause (b) of Rule 242, any person making the representation under clause (a) shall send his representation addressed to the Secretary of the Regional Transport Authority or the State Transport Authority, as the case may be, and simultaneously send a copy to the State Transport Undertaking. 35. Rule 243 of the Rules deals with the manner of making representation. As per sub-rule (1) of Rule 243, every person making a representation under clause (a) of Rule 242 shall furnish his correct address along with his representation. As per sub-rule (2) of Rule 243, no representation in pursuance of a notice under Rule 242 shall be considered by the State or the Regional Transport Authority, unless it is made in writing before the date specified and unless a copy thereof is furnished simultaneously to the State Transport Undertaking by the person making such representation. 36. Rule 244 of the Rules deals with the disposal of representation. As per Rule 244, where a representation under Rule 242 is made, the State Transport Authority or the Regional Transport Authority, as the case may be, shall dispose of the representation at a public hearing at which the State Transport Undertaking and the person making the representation shall be given an opportunity of being heard in person or by a duly authorised representative. 37. As per Rule 245 of the Rules, the holder of the cancelled permit has to submit a statement. Rule 245 provides that, where in the exercise of the powers conferred by clause (b) or (c) of sub- section (2) of Section 103 of the Act any existing permit is cancelled or the terms thereof are modified, the holder of the permit shall submit a statement in Form D with the original permits to the State Transport Undertaking and send a copy thereof to the State Transport Authority, or the Regional Transport Authority, as the case may be, within seven days from the date on which the cancellation or modification of the permit became effective. 38. Rule 246 of the Rules deals with modification of the approved scheme. Rule 246 reads thus; “Rule 246.
38. Rule 246 of the Rules deals with modification of the approved scheme. Rule 246 reads thus; “Rule 246. Modification of approved scheme.- (a) Any scheme by the State Government under sub-section (1) of Section 102 of the Act to modify an approved scheme shall be in Form "E" and shall be published in the Official Gazette and in not less than one daily newspaper in the regional language circulating in the area involved. A copy of this scheme shall be sent to the State Transport Undertaking and to any other person, who in the opinion of the State Government is likely to be affected by the proposed modification. Copy shall also be sent to the Secretary of the State Transport Authority and the Regional Transport Authority concerned. (b) The State Transport Undertaking or the other person concerned may, within thirty days from the date of publication of the scheme in the Gazette, file objections thereto, before the Secretary to Government, Public Works and Transport Department, Government Secretariate, Trivandrum. The objection shall be in the form of a memorandum setting forth concisely the grounds of objection, and shall be signed by the objector or his authorised representative. Six additional copies of the memorandum shall also be sent. (c) The objection shall be heard by the same authority and in the same manner as provided in Rule 238. (d) Any scheme as modified by Government under sub- section (1) of Section 102 of the Act shall be notified in the Gazette in Form "F".” 39. Rule 247 of the Rules deals with service of orders. As per Rule 247, every order under this chapter, except an order made by the State Government either approving or modifying a scheme, shall be served - (a) by tendering or delivering a copy thereof to the person on whom it is to be served or to his authorised agent; or (b) by sending it by Registered Post acknowledgement due, at the last known address of the person on whom it is to be served; or (c) by fixing it on a conspicuous part of the premises where he last resided or where he had his last place of business, when service according to clauses (a) or (b) is not practicable. 40.
40. A reading of the aforesaid provisions under the Motor Vehicles Act, 1988 and the Kerala Motor Vehicles Rules, 1989, in the light of the law laid down in the decisions referred to supra, makes it explicitly clear that for the publication of any proposal regarding a scheme, as provided under sub-section (1) of Section 99 of the Act, the State Government has to form an opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise. As per the requirements of sub- section (1) of Section 99 of the Act, the proposal regarding the scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and other relevant particulars respecting thereto and shall be published in the Official Gazette of the State and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deem fit. 41. As per the requirements of sub-section (2) of Section 100 of the Act, the State Government may, after considering the objections received within thirty days from the date of publication of the proposal in the Official Gazette, and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, if they so desire, approve or modify such proposal. As per sub-section (3) of Section 100, the scheme relating to the proposal as approved or modified under sub-section (2) shall then be published in the manner provided in sub-section (3), and the same shall thereupon become final on the date of its publication in the Official Gazette and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route. 42.
42. In the context of the provisions contained under Chapter IV-A of the Motor Vehicles Act, 1939 (Act IV of 1939), which are pari materia to the provisions under Chapter VI of the Motor Vehicles Act, 1988, the Constitution Bench held in Adarsh Travels Bus Service [ (1985) 4 SCC 557 ] that the policy of the Legislature is clear from Section 68-C that the State Transport Undertaking may initiate a scheme for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service to be run and operated by the State Transport Undertaking in relation to any area or route or portion thereof. The paramount consideration is the public interest. The interests of the existing operators are sufficiently taken care of and slight inconveniences to the travelling public, as may be inevitable, are sought to be reduced to a minimum. The objections to the scheme are to be heard. All existing operators providing transport facilities along or near the area or the route proposed to be covered by the scheme are to be heard. It will be open to any operator who is likely to be affected by total or partial exclusion to object to the scheme and suggest such modification as may protect him. The hearing required to be given is not an empty formality. If in the actual working of the approved scheme, any difficulty or hardship is experienced by the public, or for that matter by other operators, such difficulty may be removed and hardship relieved by appropriate action under Section 68-E. Therefore, the Constitution Bench found that at every stage, abundant provision is made to protect the public interest as well the interest of private operators by providing for consideration and reconsideration of any problems that may arise out of a proposed, published or approved scheme. 43.
43. In the decision of the Constitution Bench in G.T. Venkataswamy Reddy [ (2016) 8 SCC 402 ] , which is one rendered taking note of the decision of another Constitution Bench in Adarsh Travels Bus Service [ (1985) 4 SCC 557 ] , it was held that Chapter IV-A of the Motor Vehicles Act, 1939 (Act IV of 1939) supersedes any inconsistent provisions in Chapter IV, The policy of the legislature is clear from Section 68-C that the State Transport Undertaking may initiate a scheme for the purpose of providing an efficient, adequate, economical and properly co- ordinated road transport service to be run and operated by the State Transport Undertaking in relation to any area or route or portion thereof. It may do so if it is necessary in the public interest. The provisions in Chapter IV-A are devised to override the provisions of Chapter IV and it is expressly so enacted, the provisions of Chapter IV-A are clear and complete regarding the manner and effect of the ‘takeover’ of the operation of a road transport service by the State Transport Undertaking in relation to any area or route or portion thereof. 44. The cancellation or modification of an approved scheme is governed by the provisions under Section 102 of the Motor Vehicles Act. In view of the provisions under sub-section (1) of Section 102, the State Government may, at any time, if it considers necessary, in the public interest so to do, modify any approved scheme after giving the State Transport Undertaking and any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification, an opportunity of being heard in respect of the proposed modification. As per the requirements of sub-section (2) of Section 102, the State Government shall publish any modification proposed under sub- section (1) in the Official Gazette and in one of the newspapers in the regional language circulating in the area in which it is proposed to be covered by such modification, together with the date and the time and place at which any representation received in this behalf will be heard by the State Government. The date of hearing shall not be less than thirty days from such publication in the Official Gazette. 45.
The date of hearing shall not be less than thirty days from such publication in the Official Gazette. 45. As already noticed hereinbefore, Rule 236 of the Kerala Motor Vehicles Rules deals with the manner of notifying the scheme proposed by the State Government regarding the operation of road transport services by the State Transport Undertaking under Section 99 of the Motor Vehicles Act. As per Rule 236, every such scheme proposed by the State Government shall be in Form A and shall be published in the Official Gazette and in not less than one daily newspaper in the regional language circulating in the area involved. As per the requirements of Rule 236, a copy of each of every scheme as proposed to be published in the Gazette shall be forwarded to the State Transport Undertaking, to the Secretary of the State Transport Authority and the Regional Transport Authority concerned. Copies of the scheme shall, also be put up on the notice boards of the offices of the State Transport Undertaking, the State Transport Authority and the Regional Transport Authority concerned. Whereas, in the case of modification of an approved scheme, as per clause (a) of Rule 246 of the Rules, any such scheme by the State Government under sub-section (1) of Section 102 of the Act shall be in Form E and shall be published in the Official Gazette and in not less than one daily newspaper in the regional language circulating in the area involved. As per the requirements of clause (a) of Rule 246, a copy of the scheme shall be sent to the State Transport Undertaking and to any other person, who in the opinion of the State Government is likely to be affected by the proposed modification. A copy of the scheme shall also be sent to the Secretary of the State Transport Authority and the Regional Transport Authority concerned. 46. In view of the provisions under clause (b) of Rule 246, the State Transport Undertaking or the other person concerned may, within thirty days from the date of publication of the scheme in the Gazette, file objections thereto, before the Secretary to Government, Public Works and Transport Department, Government Secretariate, Trivandrum. The objection shall be in the form of a memorandum setting forth concisely the grounds of objection, and shall be signed by the objector or his authorised representative.
The objection shall be in the form of a memorandum setting forth concisely the grounds of objection, and shall be signed by the objector or his authorised representative. Six additional copies of the memorandum shall also be sent. As provided under clause (c) of Rule 246, the objection shall be heard by the same authority and in the same manner as provided in Rule 238, which deals with the consideration of objections by persons affected by the scheme published under Section 99 of the Motor Vehicles Act. As per provided under clause (a) of Rule 238, the Chief Minister or any other Minister nominated by him or any officer nominated by the Government in this behalf, shall be the authority to consider the objections filed and hear the objectors. In view of the provisions under clause (b) of Rule 238, the representatives of the State Transport Undertaking and the other person concerned, if they so desire, shall be heard. As per clause (d) of Rule 247, any scheme as modified by Government under sub-section (1) of Section 102 of the Act shall be notified in the Gazette in Form F. 47. In the instant case, admittedly, Ext.P9 notification dated 14.09.2020 issued by the State Government, which is one issued under clause (a) of Rule 246 of the Kerala Motor Vehicles Rules, in Form E, to modify the approved scheme under sub- section (1) of Section 102 of the Motor Vehicles Act, did not specify the date and the time and place at which the representation received will be heard and considered by the Government, as per the requirements of sub-section (2) of Section 102. In addition to that, a copy of the scheme by the State Government under sub- section (1) of Section 102 to modify the approved scheme, was not sent to persons who, in the opinion of the State Government, are likely to be affected by the proposed modification. 48.
In addition to that, a copy of the scheme by the State Government under sub- section (1) of Section 102 to modify the approved scheme, was not sent to persons who, in the opinion of the State Government, are likely to be affected by the proposed modification. 48. Relying on the decision of a learned Single Judge of this Court in Kasaragod District Bus Owners Association v. State of Kerala [ 1990 (2) KLT 830 ] the learned Special Government Pleader and also the learned Senior Counsel for KSRTC contended that publication of Ext.P9 notification 14.09.2020 issued by the State Government in the Kerala Gazette and one daily newspaper in the regional language circulating in the area involved would satisfy the requirements of sub-section (2) of Section 102 of the Motor Vehicles Act and clause (a) of Rule 246 of the Kerala Motor Vehicles Rules. 49. In Kasaragod District Bus Owners Association [ 1990 (2) KLT 830 ] the challenge made in the original petitions filed before this Court under Article 226 of the Constitution of India was against the nationalisation of five routes mentioned in the draft scheme, lying between Kasaragod and Kanhangad. The State Government published a scheme in Kerala Gazette dated 18.01.1990, under Section 99 of the Motor Vehicles Act, read with Rule 236 of the Kerala Motor Vehicles Rules, since it was of the opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated passenger road transport service, it was necessary in the public interest that the passenger road transport services mentioned in the five routes should be run and operated by the State Transport Undertaking, namely, KSRTC. The scheme provided that the five routes detailed in the annexure to the notification dated 18.01.1990 will be operated by KSRTC in the manner provided therein. The petitioner in O.P.No.5561 of 1990 raised a contention that he could not file objections against the said notification because gazette was not available in Kasaragod in time. 50. In Kasaragod District Bus Owners Association [ 1990 (2) KLT 830 ] the learned Single Judge noticed that the scheme was prepared and published as laid down in Section 99 of the Motor Vehicles Act in the official gazette and also in Desabhimani daily.
50. In Kasaragod District Bus Owners Association [ 1990 (2) KLT 830 ] the learned Single Judge noticed that the scheme was prepared and published as laid down in Section 99 of the Motor Vehicles Act in the official gazette and also in Desabhimani daily. The fact that the proposal has been accepted in toto is not a ground to say that the person who is required to exercise the power of examining the proposal has not considered or failed to carry out the function vested in the Act. In T.G. Mudaliar v. State of Tamil Nadu [ AIR 1973 SC 974 ] the Apex Court observed that the mere fact that the schemes were approved without any modification cannot establish that the Secretary, Home, who exercises the functions of the State Government under Section 68-D of the Motor Vehicles Act, 1939 had failed to carry out his functions as laid down in Section 68-D or that he had approved the scheme without any modification because the Government orders contained language of mandatory nature. 51. In Kasaragod District Bus Owners Association [ 1990 (2) KLT 830 ] the learned Single Judge noticed that when the scheme is published in the manner provided under Section 99 of the Motor Vehicles Act, the petitioners and other operators are required under the law to file objection in the manner provided, within 30 days from the date of its publication in the official gazette. Rule 237 of the Kerala Motor Vehicles Rules provides for the manner of filing objections. The objector should furnish the particulars provided in Rule 237, which is a salutary provision so that the authority can advert to a grievance of the objector in this regard. The objector has to show in what respect the scheme is wanting. He has to explain in what manner the consideration has not been given and whether the scheme failed to provide for efficient, adequate, economical and properly co-ordinated passenger road transport services. For considering all these aspects the objection in the prescribed manner is required. The objector has to point out that the scheme is not calculated for providing a road transport service which can be considered efficient, adequate, economical and properly co-ordinated road transport service. Non-compliance to the manner of providing objections itself will be a ground for dismissing the writ petition.
The objector has to point out that the scheme is not calculated for providing a road transport service which can be considered efficient, adequate, economical and properly co-ordinated road transport service. Non-compliance to the manner of providing objections itself will be a ground for dismissing the writ petition. The learned Single Judge noticed that the petitioner in O.P.No.5003 of 1990 filed Ext.P4 statutory objection, which does not contain the details required under Rules 236 and 237 of the Kerala Motor Vehicles Rules, and in the other original petition, no objection has been filed by the petitioner. 52. In Kasaragod District Bus Owners Association [ 1990 (2) KLT 830 ] the learned Single Judge held that the absence of knowledge of the draft publication by a particular operator is immaterial. What is required under the Act is to publish the scheme of nationalisation in the official gazette as well as in a newspaper in the regional language circulating in the area or the route proposed to be covered. There is no requirement that individual notice should be given. Therefore, the knowledge of any particular person or operator is immaterial. The requirement is only publication in the manner prescribed, in the gazette and in a daily having circulation in the area covered by the route proposed to be nationalised. Therefore, the absence of knowledge of the publication in the official gazette by any particular operator is immaterial. 53. In Kasaragod District Bus Owners Association [ 1990 (2) KLT 830 ] the learned Single Judge held that the purpose of nationalisation is to bring into an efficient, adequate, economical and properly co-ordinated passenger road transport service between two termini. Any inconvenience caused to the passengers performing a journey between the other points and the distance cannot afford a ground for challenging the scheme as invalid. It is the duty of the State Transport Undertaking to arrange its service on the nationalised routes so that those through passengers are subjected to the least inconvenience. The arguments of inconvenience to the public because of the nationalisation is not a ground for invalidation. It has been so held in the decision reported in Viswanatha Rao v. State [AIR 1968 Mysore 104] and the learned Single Judge was in respectful agreement of the same.
The arguments of inconvenience to the public because of the nationalisation is not a ground for invalidation. It has been so held in the decision reported in Viswanatha Rao v. State [AIR 1968 Mysore 104] and the learned Single Judge was in respectful agreement of the same. If there is no co-ordinated service, or if there are difficulties to the public because of uncoordinated service, it can be remedied by subsequent modification as provided in Section 103 of the Motor Vehicles Act or by proper time schedule. 54. As already noticed hereinbefore, the judgment of the learned Single Judge in Kasaragod District Bus Owners Association [ 1990 (2) KLT 830 ] , which is relied on by the learned Senior Counsel for KSRTC and the learned Special Government Pleader, in order to contend that the writ petitioners and other operators are not legally entitled to individual notice in respect of Ext.P9 notification dated 14.09.2020, is one rendered in the context of Section 99 of the Motor Vehicles Act read with Rule 236 of the Kerala Motor Vehicles Rules, which prescribes the manner of notifying the proposed scheme. The law laid down in the said decision has no application in respect of the said notification, which is one issued under sub-section (1) of Section 102 of the Motor Vehicles Act, read with Rule 246 of the Kerala Motor Vehicles Rules, for modification of an approved scheme. In view of the provisions contained in clause (a) of Rule 246 any private operator who is likely to be affected by the proposed modification is entitled to an individual notice, along with a copy of the scheme. Such a notice is in addition to the publication of the proposal in the official gazette and in one daily newspaper in the regional language, circulating in the area involved. Such a provision for individual notice is conspicuously absent in Rule 236 of the Kerala Motor Vehicles Rules, which deals with the manner of notifying the proposed scheme. In such circumstances, we hold that in the absence of individual notices to the private operators likely to be affected by the proposed modification in Ext.P9 notification dated 14.09.2020 vitiates the entire exercise undertaken by the State Government pursuant to that notification, which cannot be sustained in law.
In such circumstances, we hold that in the absence of individual notices to the private operators likely to be affected by the proposed modification in Ext.P9 notification dated 14.09.2020 vitiates the entire exercise undertaken by the State Government pursuant to that notification, which cannot be sustained in law. The State Government, if it so desires, has to issue a fresh notification under sub-section (1) of Section 102 of the Motor Vehicles Act, for modifying the notified scheme in Ext.P2. 55. It is an admitted fact that Ext.P9 notification dated 14.09.2020, which is one issued under sub-section (1) of Section 102 of the Motor Vehicles Act, read with Rule 246 of the Kerala Motor Vehicles Rules, did not specify the date, time and the place at which any representation received in terms of that notification will be heard by the State Government. The argument of the learned Senior Counsel for KSRTC and the learned Special Government Pleader is that Ext.P9 notification dated 14.09.2020 was published at a time when there were restrictions due to the spread of the Covid-19 pandemic. The Central Government, as well as the State Government, issued various guidelines from 26.03.2020 onwards, under the provisions of the Disaster Management Act, 2005 for the containment of the Covid-19 pandemic. At the time of issuance of Ext.P9 notification such guidelines were in force, as per which all public outdoor gatherings with more than 20 people and indoor events with more than 10 people were banned. In view of the provisions contained in the Disaster Management Act, the orders issued under the provisions of the said Act are having an overriding effect upon other provisions of law. 56. The provisions under the Disaster Management Act, 2005 or the restrictions imposed, due to the spread of the Covid- 19 pandemic, vide the guidelines issued by the Central Government as well as the State Government from 26.03.2020 onwards, would not enable the State Government to issue Ext.P9 notification dated 14.09.2020, without mentioning anything about the requirement under sub-section (2) of Section 102 of the Motor Vehicles Act regarding the consideration of the representations received pursuant to the said notification, with an opportunity of being heard.
In view of the restrictions imposed due to the spread of the Covid-19 pandemic, the State Government could have even mentioned in Ext.P9 notification that the date, time and place at which any representation received will be heard by the State Government will be notified by way of a separate notification. In view of the mandatory requirements of sub-section (2) of Section 102 of the Motor Vehicles Act, the learned Single Judge cannot be found fault with in concluding that Ext.P9 notification does not satisfy the statutory requirements and as such Ext.P14 final notification cannot be said to be in accordance with the law. 57. In Breen v. Amalgamated Engineering Union [(1971) 1 All ER 1148] Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120] it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. 58. In Commissioner of Police, Bombay v. Gordhandas Bhanji [ AIR 1952 SC 16 ] the Apex Court has held that public orders publicly made, in the exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 59. Following the principle laid down in Gordhandas Bhanji [ AIR 1952 SC 16 ] the Apex Court has reiterated in Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405] that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 60.
Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 60. Following the principle laid down in the decisions referred to above, the Apex Court in Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364] held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi- judicial performance. 61. A Constitution Bench of the Apex Court has laid down in Krishna Swami v. Union of India [ (1992) 4 SCC 605 ] that, undoubtedly, in a parliamentary democracy governed by the rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. 62. In B.A. Linga Reddy v. Karnataka State Transport Authority [ (2015) 4 SCC 515 ] , the Apex Court, after referring to its earlier judgments on the subject, reiterated that the rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice. If a statutory or public authority/ functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Article 14 and Article 21 of the Constitution of India.
If a statutory or public authority/ functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Article 14 and Article 21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a speaking order that excludes arbitrariness in action. Referring to the facts of that case, the Apex Court noticed that there is no consideration of the objections except mentioning the arguments of the rival parties and that objections, both factual and legal have not been considered, much less reasons assigned to overrule them. 63. In National Highways Authority of India v. Madhukar Kumar [ (2022) 14 SCC 661 ] a Two-Judge Bench of the Apex Court was dealing with an appeal arising out of the judgment of a Division Bench of the Patna High Court in L.P.A.No.388 of 2015. The said appeal arises out of the judgment of a learned Single Judge in W.P.No.5643 of 2012. The relief sought in that writ petition was to restrain the construction of a toll plaza at 194km of NH-30 in the four-laning of Patna- Bakhtiyarpur Section, in violation of Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008. In the writ petition, it was contended that the National Highways Authority of India (NHAI) had not assigned any reason for establishing the toll plaza within the Municipal area. Further, the establishment of the toll plaza at its present location will cause great difficulties to the residents of the locality because they will have to cross the toll plaza on many occasions in a day, and on all occasions, they will be liable to pay the toll. 64. In Madhukar Kumar [ (2022) 14 SCC 661 ] , on the duty to give reasons, the Apex Court noticed that an administrative authority exercising judicial or quasi-judicial power must record reasons for its decision. This is subject to the exception where the requirement has been expressly or by necessary implication done away with. In S.N. Mukherjee v. Union of India [ (1990) 4 SCC 594 ] the Constitution Bench surveyed the entire case law in this regard and held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons.
In S.N. Mukherjee v. Union of India [ (1990) 4 SCC 594 ] the Constitution Bench surveyed the entire case law in this regard and held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons. The Constitution Bench held further that recording of reasons excludes the chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said principle would apply equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review. It is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge. Thus, it is settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. It also excludes the chances to reach arbitrary, whimsical or capricious decisions or conclusions. The reasons assure an inbuilt support for the conclusion/decision reached. The order when it affects the right of a citizen or a person, irrespective of the fact, whether it is quasi-judicial or administrative, fair play requires recording of germane and relevant precise reasons. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the jurisdiction of the High Court under Article 226 or the appellate jurisdiction of the Apex Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person.
It also aids the appellate or revisional authority or the jurisdiction of the High Court under Article 226 or the appellate jurisdiction of the Apex Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person. The applicability of the principles of natural justice is not a rule of thumb or a straitjacket formula as an abstract proposition of law. It depends on the facts of the case, the nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances. 65. In Madhukar Kumar [ (2022) 14 SCC 661 ] , the Apex Court noticed that in Rajeev Suri v. Delhi Development Authority [ (2022) 11 SCC 1 ] , which arose in the context of the decision taken to construct a new Parliament building and certain other structures, while dealing with the question relating to non- application of mind, the Court has also dealt with the impact of there being no reasons, wherein it was noticed that the rules of natural justice are not embodied rules. They are means to an end and not end in themselves. The goal of these principles is to prevent prejudice. It is from the same source that the requirement of application of mind emerges in decision-making process as it ensures objectivity in decision-making. In order to ascertain that due application of mind has taken place in a decision, the presence of reasons on record plays a crucial role. The presence of reasons would fulfil the twin objectives of revealing an objective application of mind and assisting the adjudicatory body in reviewing the decision. 66. In Rajeev Suri [ (2022) 11 SCC 1 ] , the question that arose for consideration before the Apex Court was whether the statement in the recorded minutes of the Central Vista Committee (CVC) meeting “the features of the proposed Parliament building should be in sync with the existing Parliament building” is or is not indicative of an application of mind. The Apex Court noticed that, in cases when the statute itself provides for an express requirement of a reasoned order, it is understandable that the absence of reasons would be a violation of a legal requirement and thus, illegal.
The Apex Court noticed that, in cases when the statute itself provides for an express requirement of a reasoned order, it is understandable that the absence of reasons would be a violation of a legal requirement and thus, illegal. However, in cases when there is no express requirement of reasons, the ulterior effect of the absence of reasons on the final decision cannot be sealed in a straight- jacketed manner. Such cases need to be examined from a broad perspective in the light of overall circumstances. The Court would look at the nature of the decision-making body, the nature of rights involved, stakeholders, the form and substance of the decision, etc. The list is not exhaustive for the simple reason that drawing a conclusion of non-application of mind from mere absence of reasons is a matter of pure inference and the same cannot be drawn until and unless other circumstances too point in the same direction. Thereafter, the Apex Court, relying on the decision in Union of India v. E.G. Nambudiri [(1991) 3 SCC 38] , held that had it been a case of any other administrative committee required to adjudicate upon the rights of individuals, merely because it is not mandatory to record reasons would not absolve it of the requirement of objective consideration of the proposal. The ultimate enquiry is of application of mind and a reasoned order is merely one element in that enquiry. In a given case, the Court can still advert to other elements of the decision- making process to weigh the factum of application of mind. The test to be applied in such a case would be of a reasonable link between the material placed before the decision-making body and the conclusion reached in consideration thereof. The Court may decide in the context of the overall circumstances of the case, and a sole element (of no reasons or lack of elaborate reasons) cannot be enough to make or break the decision as long as the judicial mind is convinced of substantial application of mind from other circumstances. Even in common law jurisprudence, there is no absolute requirement of reasoned order in all decisions. 67.
Even in common law jurisprudence, there is no absolute requirement of reasoned order in all decisions. 67. In Rajeev Suri [ (2022) 11 SCC 1 ] , the Apex Court noticed the decision of the House of Lords in R. v. Secretary of State for Trade and Industry [(1989) 2 All ER 609)] , wherein it was contended that the decision is not based on convincing reasons and therefore, must be declared as illegal. The House of Lords refused to entertain this contention and noted that the mere absence of reasons would not render the decision irrational. Lord Keith, in his opinion, noted that the only significance of the absence of reasons would be that if circumstances overwhelmingly point towards a different conclusion than the one reached by the body, it would be fatal. The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker who has given no reasons cannot complain if the court draws the inference that he had no rational reason for his decision. 68. In Rajeev Suri [ (2022) 11 SCC 1 ] , the Apex Court noticed the decisions in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi [ (1991) 2 SCC 716 ] and Mahabir Jute Mills Ltd. v. Shibban Lal Saxena [ (1975) 2 SCC 818 ] , wherein it was held that if the function/decision of the Government is administrative, in law, ordinarily there is no requirement to be accompanied by a statement of reasons, unless there is an express statutory requirement in that regard. Again, in Sarat Kumar Dash v. Biswajit Patnaik [(1995) Supp.1 SCC 434] , it was observed that, in the field of administrative action, reasons are the link between the maker of the order or the author of the decision and the order itself. The record can be called to consider whether the author had given due consideration to the facts placed before him before he arrived at the decision.
The record can be called to consider whether the author had given due consideration to the facts placed before him before he arrived at the decision. Therefore, the requirement of reasons in cases which do not demand it in an express manner is based on desirability, and the same is advised to the extent possible without impinging upon the character of the decision- making body and the needs of administrative efficiency. 69. In Madhukar Kumar [ (2022) 14 SCC 661 ] , the Apex Court held that as noticed by the Three-Judge Bench in Mahabir Jute Mills Ltd. [ (1975) 2 SCC 818 ] , there is no general duty, when an administrative decision is taken, to give reasons. A statute may, however, explicitly provide that the executive authority must provide reasons and it must be recorded in writing. A case in point is the first proviso to Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 itself. The desirability of a general duty, in the case of administrative action, to support decisions with reason, is open to question. One of the most important reasons is the burden it would put on the administration. Administrative decisions are made in a wide spectrum of situations and contexts. The executive power of the Union and States are provided in Articles 73 and 162 of the Constitution of India, respectively. Undoubtedly, in India, every State action must be fair, failing which, it will fall foul of the mandate of Article 14. The duty to give reasons would arise even in the case of administrative action, where legal rights are at stake and the administrative action adversely affects legal rights. There may be something in the nature or the context under which the administrative action is taken, which may necessitate the authority being forthcoming with rational reasons. There are other decisions, which essentially belong more to the realm of executive policy-making, which ordinarily may not require the furnishing of reasons. 70. In Madhukar Kumar [ (2022) 14 SCC 661 ] , the Apex Court noticed the advantages, undoubtedly, of introducing a reasons-driven regime. Persons, who may have a right or an interest, would know, what are the reasons which impelled the administrator to take a particular decision.
70. In Madhukar Kumar [ (2022) 14 SCC 661 ] , the Apex Court noticed the advantages, undoubtedly, of introducing a reasons-driven regime. Persons, who may have a right or an interest, would know, what are the reasons which impelled the administrator to take a particular decision. Judicial review in India, which encompasses the wide contours of public interest litigation as well, would receive immeasurable assistance if the reasons for particular decisions were articulated to the extent possible. The giving of reasons also has a disciplining effect on the administrator. This is for the reason that the reasons would capture the thought process, which culminated in the decision, and it would help the administrator steer clear of the vices of illegality, irrationality and also disproportionality. Reasons could help to establish the application of mind. Conversely, the absence of reasons may unerringly point to non-application of mind. The duty to act fairly may require reasons to be recorded but the said duty, though there is a general duty on all State players to act fairly, may have its underpinnings, ultimately in legal rights. 71. In Madhukar Kumar [ (2022) 14 SCC 661 ] , the Apex Court noticed that it is one thing to say that there should be reasons, which persuaded the administrator to take a particular decision and a different thing to find that the reasons must be incorporated in a decision. The question relating to the duty to communicate such a decision would arise for consideration in different situations, having regard to the impact, which it, in law, produces. On the facts of the case on hand, the Apex Court noticed that the second proviso to Rule 17 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 provides not only for there being reasons but also the reasons for refusal to permit barricades must be communicated. If the law provides for a duty to record reasons in writing, undoubtedly, it must be followed, and it would amount to a violation of the statute, if it were not followed. Even if there is no duty to record reasons or support the order with reasons, there cannot be any doubt that, for every decision, there would be and there must be, a reason. The Constitution does not contemplate any public authority, exercising power with caprice or without any rationale.
Even if there is no duty to record reasons or support the order with reasons, there cannot be any doubt that, for every decision, there would be and there must be, a reason. The Constitution does not contemplate any public authority, exercising power with caprice or without any rationale. But here again, in the absence of the duty to record reasons, the Court is not to be clothed with the power to strike down administrative action for the mere reason that no reasons are to be found recorded. In certain situations, the reason for a particular decision may be gleaned from the pleadings of the authority, when the matter is tested in a court. From the materials, including the file noting, which are made available, the Court may conclude that there were reasons and the action was not illegal or arbitrary. From admitted facts, the Court may conclude that there was sufficient justification, and the mere absence of reasons, would not be sufficient to invalidate the action of the public authority. Thus, reasons may, in certain situations, have to be recorded in the order. In other contexts, it would suffice that the reasons are to be found in the files. The Court may, when there is no duty to record reasons, support an administrative decision, with reference to the pleadings aided by materials. 72. The learned Senior Counsel for KSRTC and the learned Special Government Pleader for the State would place reliance on the judgment of a Constitution Bench of the Apex Court in H.C. Narayanappa v. State of Mysore [ AIR 1960 SC 1073 ] in order to contend that the procedure adopted by the State while publishing Ext.P14 notification is not in violation of the principles of natural justice. On the aforesaid argument advanced by the learned Special Government Pleader and also the learned Senior Counsel for KSRTC, the learned Senior Counsel for the party respondents in W.A.No.1821 of 2024 would point out that the judgment of the Apex Court in B.A. Linga Reddy v. Karnataka State Transport Authority [ (2015) 4 SCC 515 ] is one rendered after taking note of the law laid down by the Constitution Bench in the said decision. 73.
73. On the contentions raised on the question of violation of principles of natural justice, relying on the judgment of the Apex Court in H.C. Narayanappa [ AIR 1960 SC 1073 ] , we notice that the principle that can be culled out from the said decision is that the Government on whom the duty to decide the dispute rests is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. In the said decision, the Constitution Bench noticed that the guarantee conferred by Section 68-D of the Motor Vehicles Act, 1939 (Act IV of 1939) upon persons likely to be affected by the intended scheme is a guarantee of an opportunity to put forth their objections and to make representations to the State Government against the acceptance of the scheme. This opportunity of making representations and of being heard in support thereof may be regarded as real only if in the consideration of the objections, there is a judicial approach. But the legislature does not contemplate an appeal to the Supreme Court against the order passed by the State Government approving or modifying the scheme. Provided the authority invested with the power to consider the objections gives an opportunity to the objectors to be heard in the matter and deals with the objections in the light of the object intended to be secured by the scheme, the ultimate order passed by that authority is not open to challenge either on the ground that another view may possibly have been taken on the objections or that detailed reasons have not been given for upholding or rejecting the contentions raised by the objectors. 74. In the instant case, a perusal of the files relating to Ext.P14 notification makes it explicitly clear that there is total non- application of mind on the objections raised by the writ petitioners and others, regarding the proposal made in Ext.P9 notification for modification of Ext.P2 scheme.
74. In the instant case, a perusal of the files relating to Ext.P14 notification makes it explicitly clear that there is total non- application of mind on the objections raised by the writ petitioners and others, regarding the proposal made in Ext.P9 notification for modification of Ext.P2 scheme. Viewed in the light of the law laid down by the Constitution Bench in Adarsh Travels Bus Service [ (1985) 4 SCC 557 ] , which was followed by the law laid down by another Constitution Bench in G.T. Venkataswamy Reddy [ (2016) 8 SCC 402 ] , which are rendered in the context of the provisions under Chapter IV-A of the Motor Vehicles Act, 1939 (Act IV of 1939), which are pari materia to the provisions contained in Chapter VI of the Motor Vehicles Act, 1988, and also the law laid down by the Constitution Bench in H.C. Narayanappa [AIR 1960 SC 1073] the conclusion is irresistible that Ext.P14 notification is one issued in total disregard to the requirements of the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to supra. The files relating to Ext.P14 notification would not show that the State Government to whom the power is delegated acted judicially in modifying the notified scheme in Ext.P2. The guarantee conferred by Section 102 of the Motor Vehicles Act, read with Rule 246 of the Kerala Motor Vehicles Rules, upon persons likely to be affected by the proposal for modification of a notified scheme, is a guarantee of an opportunity to put forth their objections and to make representations against the acceptance of the scheme, can be regarded as a real opportunity only if in the consideration of the objections there is a judicial approach. 75. A decision taken by the State Government, in the exercise of its powers under Section 102 of the Motor Vehicles Act, 1988, read with the relevant provisions of the Kerala Motor Vehicles Rules, modifying an approved scheme, can be challenged by an affected private operator, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in the absence of any statutory remedy. The absence of reasons will make nugatory and ineffective the exercise of the power of judicial review by this Court in a writ petition filed under Article 226 of the Constitution of India.
The absence of reasons will make nugatory and ineffective the exercise of the power of judicial review by this Court in a writ petition filed under Article 226 of the Constitution of India. During the course of arguments, it is not in dispute that the Government files relating to Ext.P14 notification do not disclose any reason whatsoever for disposing or rejecting the objections in the representations made by the private operators and others, made pursuant to Ext.P9 notification dated 14.09.2020. There is nothing on record to suggest that due consideration was given to such objections. It is well settled that the hearing required to be given is not an empty formality. In such circumstances, we find no reason to interfere with the impugned judgment dated 06.11.2024 of the learned Single Judge in W.P.(C)No.17469 of 2023 and connected matters. In the result, these writ appeals fail and they are accordingly, dismissed. No order as to costs.