CIVIL APPELLATE JURISDICTION ’ Civil Appeals Nos’. 8 and 9 of 1968. Appeals by special leave from the judgment and order dated October 27, 1967 of the Mysore High Court in Writ Petitions Nos. 1720 and 1722 of 1964. P. Babula Reddy and K. Rajendra Chaudhuri, for the appellants (in-both the appeals). Shyamala Pappu, M. K. Ramamurthi and Vineet Kumar for respondent No. 2 (in both the appeals). R. N. Sachthey and S. P. Nayar, for respondent No. 3 (in’ both the appeals). The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought by special leave from the judgment of the Mysore High Court dated October 27, 1967 dismissing Writ Petitions Nos. 1720 and 1722 of 1964. The appellants are transport operators plying a stage carriage on the route Yadgir to Narayanapet on the strength of permits issued by the Regional Transport Authority, Gulbarga. The route Yadgir to Narayanapet is an inter-State route of a distance of 28 miles out of which a portion of 5 miles is situated in the State of Andhra Pradesh and the rest is in the State of Mysore. A draft scheme was prepared by the second respondent, Mysore State Road Transport Corporation under s. 68-C of the Motor Vehicles Act, proposing to take over the Stage Carriage Services on the inter-State route Yadgir to Narayanapet to the complete exclusion of other operators. The draft scheme was published in the Gazette on June 21, 1962. The appellants and some others filed their objections against the proposed scheme. The objections were heard by the Chief Minister of, the State of Mysore under s. 68-D of the Motor Vehicles Act and the draft scheme was approved with certain modifications by his order dated March 7, 1964. The approval of the Central Government was later on accorded under the proviso to sub-section (3) of s. 68D of the Motor Vehicles Act. The approved scheme made two modifications to the draft scheme. The first was that it specified the minimum number of vehicles and daily services. The second modification was that it restricted the exclusion of other operators only to that part of the route which was in the State of Mysore. The approved scheme was published by the Government of Mysore in its Gazette dated July 16, 1964. The appellants moved the High Court of Mysore for grant of a writ under Art. 226 of the Constitution to quash the notification of the Mysore Government dated July 16, 1964 approving the final scheme. The main ground of challenge was that the approved scheme violated the provisions of s. 20 of the Road Transport Corporations Act, 1950 (Act 64 of 1950). It was also contended that there was an infringement of the requirements of s. 68-C and s. 68-E of the Motor Vehicles Act, 1939 (Act 4 of 1939) as modified by Act 100 of 1956, but the writ applications were dismissed by the High Court by its judgment dated October 27, 1967. Chapter IV A was inserted in the Motor Vehicles Act (Act 4 of 1939) by the Amending Act 100 of 1956 with effect from February 16, 1957. Section 68-C which is incorporated in Ch. IV A reads:
"Where any State transport undertaking is of
opinion that for the purpose of providing an
efficient, adequate, economical and properly
coordinated 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, com-
plete or partial, of other persons or
otherwise, the State transport undertaking may
prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed ,to be covered and such other particulars respecting thereto as may be prescribed, and shall cause very such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct." Section 68-D provides as follows
"(1) Any person affected by the scheme
published under section 68C may, within thirty
days from the date of the publication of the
scheme in the Official Gazette, file
objections thereto before the State Gov-
ernment.
(2) 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 scheme.
(3) The scheme as approved or modified under
sub-section (2) shall then be published in the
Official Gazette by the State Government and
the same shall thereupon become final 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:
Provided that no such scheme which relates to
any inter-State route shall be deemed to be an
approved scheme unless it has been published
in the Official Gazette with the previous
approval of the Central Government."
Section 68-E states
"Any scheme published under sub-section (3) of
section 68D may at any time be cancelled or
modified by the State transport undertaking
and the procedure laid down in section 68C and
section 68D shall, so far as it can be made
applicable, be followed in every case where
the scheme is proposed to be modified as if
the, modification proposed were a separate
scheme." Section 3 of the Road Transport Corporations Act, 1950 provides for establishment of Road Transport Corporations and reads as follows :
"The State government, having regard to-
(a) the advantages offered to the public,
trade and industry by the development of road
transport;
L4Sup.CI/68-14
(b) the desirability of coordinating any
form of road transport with any other form of
transport;
(c) the desirability of extending and
improving the facilities for road transport in
any area and of providing an efficient and
economical system of road transport service
therein; may, by notification in the Official Gazette, establish a Road Transport Corporation for the whole or any part of the State under such name as may be specified in the notification." Section 4 states :
"Every Corporation shall be body corporate by
the name notified under section 3 having
perpetual succession and a common seal, and
shall by the said name sue and be sued." Section 18 is to the following effect
"It shall be the general duty of a Corporation
so to exercise its powers as progressively to
provide or secure or promote the provision of,
an efficient, adequate, economical and
properly coordinated system of road transport
services in the State or part of the State for
which it is established and in any extended
area:
provided that nothing in this section shall be
construed as imposing on a Corporation, either
directly of duty or liability enforce any
court or tribunal to which it would
not otherwise be subject." Section 19(1) provides as follows:
"(1) Subject to the provisions of this Act, a
Corporation shall have power-
(a) to operate road transport services in the
State and in any extended area; Section 20 deals with extension of the operation of the road transport service of a Corporation to areas within another State. Section 20 reads as follows :
"20. (1 ) If a Corporation considers it to be
expedient in the public interest to extend the
operation of any of its road transport
services to any route or area situated within
another State, it may, with the permis-
sion of the State Government, negotiate with
the Government of the other. State regarding
the proposed extension.
(2) If the Government of the other State
approves the proposed extension, the
Corporation shall prepare a scheme for the
purpose and forward the same to the other
Government for its consent, and after such
consent has been received, the Corporation
may, with the previous approval of the State
Government, sanction the scheme.
(3) After the scheme has been so sanctioned,
it shall be competent for the Corporation to
extend the operation of its road transport
service to such route or area and when the
operation of such service is so extended, the
Corporation shall operate the service on that
route or in that area subject to the
provisions of any law in force in the other
State within which such route or area is
situated. Section 2(c) defines an "extended area" to mean "any area or route to which the operation of any road transport service of a Corporation has been extended in the manner provided in section 20." On behalf of the appellants it was contended, in the first place, that the provisions of s. 20 of the Road Transport Corporations Act, 1950 were not complied with and the final scheme published by respondent No. 1 was ultra vires. We are unable to accept this argument as correct. It is not necessary to examine in this case, whether there is any inconsistency between the provisions of s. 20 of the Road Transport Corporations Act, 1950 and the proviso to s. 68-D of the Motor Vehicles Act. It is also not necessary to express any opinion as to whether the requirements of s. 20 of the Road Transport Corporations Act should be complied with even in the case of a scheme relating to interState route to which the Central Government has accorded approval under the proviso to s. 68-D of the Motor Vehicles Act. We shall assume in favour of the appellants that the requirements of s. 20 of the Road Transport Corporations Act should also be followed in a case where the Central Government has given sanction under s. 68-D of the Motor Vehicles Act. Even upon that assumption we hold that there has been sufficient compliance with the requirements of s. 20 of the Road Transport Corporations Act in the present case. It is not disputed that the concurrence of the State of Andhra Pradesh was secured for the final scheme and the Government of the State of Mysore had also accorded its approval to it. In these circumstances the omission of respondent No. 1 to make the scheme in the precise manner in which s., 20 of the Road Transport Corporations Act directs the preparation of the scheme is a mere irregularity which cannot lead to the nullification of the final scheme published on July 16, 1964. We pass on to consider the next contention of the appellants that in the draft scheme the maximum number of vehicles and daily services was specified and not the minimum but in the final scheme approved under s. 68-D of the Motor Vehicles Act there was specification of the minimum number of vehicles and daily services in respect of the route in question. The approved scheme stated that the maximum number of vehicles was 18 and the minimum was 1. It was, also, stated that the maximum number of daily services was 10 and the minimum was 3. It was maintained on behalf of the appellants that by prescribing the maximum and minimum number of vehicles and daily services and by permitting such a great disparity between the maximum and minimum number of vehicles and daily services there was a virtual modification of the draft scheme and the procedure prescribed by s. 68-E of the Motor Vehicles Act should have been followed. In our opinion, there is no justification for this argument. It is true that in B. H. Aswathanarayan Singh and Ors. v. State of Mysore and Ors.(1), it was pointed out by this Court that if the proportion which the minimum bears to the maximum Is so great, and the gap between the two, is so wide as to make the prescription of the maximum and the minimum amount to a fraud on ss. 68-C and 68-E, the scheme will stand vitiated. But at the same time it was explained that it was not possible to lay down specifically at what stage the fixing of minimum and maximum would turn into fraud; but it is only when the gap between the minimum and maximum is so great that it amounts to fraud on the Act that it will be open to a court to hold that the scheme is not in compliance with s. 68-C and is hit by s. 68-E. The gap between the minimum and maximum would depend upon a number of factors, particularly on the variation in the demand for transport at different seasons of the year. At page 97 of the Report, Wanchoo, J., as he then was, speaking for the Court, observed as follows:
"There is no doubt that though fixing of
minimum and maximum number of vehicles and
trips with respect to each route is
permissible under s. 68-C and would not be hit
by s. 68-E, the proportion between the minimum
and maximum should not be so great as to make
the fixing of minimum and maximum a fraud on
(1) [1966] 1 S.C.R. 87.
ss. 68-C and 68-E of the, Act. It is not
possible to lay down specifically at what
stage the fixing of minimum and maximum would
turn into fraud; but it is only when the gap
between the minimum and maximum is so great
that it amounts to fraud on the Act that it
will be open to a court to hold that the
scheme is not in compliance with s. 68-C and
is hit by s. 68-E. The gap between the
minimum and maximum would depend upon a number
of factors, particularly on the, variation in
the demand for transport at different seasons
of, the year. Even so if the approved scheme
were to fix minimum and maximum with very wide
disparity between the two, it may be possible
for the court to hold after examining the
facts of the case that such fixation is not in
accordance with s. 68-C and is a fraud on s.
68-E. But, with respect, it seems to us that
a variation in minimum and maximum from 6 to
12 or 5 to. 9. can hardly be of such an order
as to amount to fraud on the Act. The
observations with respect to fixing of minimum
and maximum number of vehicles and trips in
the scheme made in Rowjee’s case [(1964) 6
S.C.R. 330] must therefore be treated as
obiter as in that case they did not require
determination. In the present case the gap is
not of such a wide nature. " In the present case, the distance between Yadgir and Narayanapet is a short distance of twenty-eight miles and the order of the Chief Minister shows that there was seasonal variation of traffic density and during marriage and other seasons it was necessary to operate extra services. There was also variation on account of auspicious and inauspicious days. The scheme had to provide for operating extra services during Jathras, Car festivals and other occasions like Dasara fair at Mysore, Ulvi fair at Ulvi, Shivrarathri fair at Gokam etc. It was felt by the Chief Minister that the scheme will have to be sufficiently flexible to enable the State Transport Undertaking to adjust its services and vehicles to cater to Shandy or weekly Bazar traffic to various places. In the context of the particular facts of this case we are of opinion that the gap between the fixation of minimum and the maximum number of vehicles and of daily services is not so great as to amount to a fraud on s. 68-C and 68-E of the Motor Vehicles Act. We accordingly reject the argument of the appellants on this aspect of the case. Lastly, it was contended that the approved scheme violated Art. 14 of the Constitution as there was a complete exclusion of the private operators ’on the portion of the route located in the Mysore State while permitting those who are plying their vehicles on the portion of the route lying in Andhra Pradesh State. We do not consider there is any substance in this argument. It is manifest that operators plying in the State of Mysore and those plying in the State of Andhra Pradesh constitute two different classes of persons and therefore no question of discrimination can arise if there is complete exclusion of the operators within the State of Mysore and if there is relaxation with regard to those Operating in the State of Andhra Pradesh. For the reasons expressed we hold that there is no merit in these appeals which are accordingly dismissed with coststhere will be one set of hearing fees for both the appeals. R.K.P.S. Appeals dismissed.