judgement:
Civil Appeal No. 1755 of 1980.
Appeal by Special Leave from the Judgment and order dated 8 8 1980 of the Allahabad High Court in Civil Misc.
Writ Petition No. 4376/69.
S.N. Kackar, R.B. Mehrotra and Pramod Swarup for the Appellants.
O. P. Rana and Mrs. Shobha Dikshit for Respondent No. 1.
Yogeshwar Prasad, Mrs. Rani Chhabra, P.K. Pillai and R.N. Trivedi for Respondent No. 2.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by special leave is directed against a judgement dated the 8th August 1980 of a Division Bench of the Allahabad High Court dismissing a petition instituted by the 18 appellants under article 226 of the Constitution of India in which the reliefs prayed for were (a) that the order dated the 19th July, 1969 (hereinafter referred to as the impugned order) passed by the Deputy Secretary (Judicial), Government of Uttar Pradesh, 1008 rejecting all the objections filed by the appellants to a scheme (hereinafter called the impugned scheme) published on the 21st January 1961 in the Government Gazette of Uttar Pradesh under section 68C of the (for brevity, the Act) be set aside as illegal.
and (b) that the notification published in the said Gazette dated the 7th November, 1970 and approving the impugned scheme (for short, the 1970 notification) be quashed.
The notification dated the 21st January 1961 declared that the State Government was of the 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 on the routes mentioned at item No. 2 of the annexed schemes should be run and operated by the State transport undertaking to the complete exclusion of other persons" and the impugned scheme was being published on that account under section 68C of the Act read with rule 4(1) of the Uttar Pradesh State Transport Services (Development) Rules, 1958 (for short, the rules).
The impugned scheme envisaged the plying of buses on the route Gorakhpur Khajni Gola via Dhuriapur and Malhanpur exclusively by the State transport undertaking (hereinafter described as the S.T.U.) and invited all persons whose interest was affected by it to file objections thereto within 30 days of its publication in the Official Gazette.
The impugned scheme was later on modified by different notifications and three allied routes were brought within its purview.
Supplementary objections to the scheme as amended were put forward by persons interested.
Shri S.K. Bhargava, Deputy Secretary (Judicial) to the U.P. Government rejected all the objections and approved the scheme through the impugned order, in pursuance of which The 1970 notification was published in the Government Gazette.
On behalf of the 18 appellants (out of whom appellants Nos. 1 to 17 are transport operators who were plying their buses on the routes covered by the impugned scheme while appellant No. 18 is the Motor operators Association, Gorakhpur) the following grounds were put forward before the High Court in support of the prayers made: (i) The impugned scheme was vitiated by mala fides inasmuch as it was the outcome of action taken by Shri Hanumant Singh Negi, Deputy Transport Commissioner, U.P., who had 1009 threatened Shri Bajrangi Lal, Pairokar for one of the petitioners, namely, Shri Kashi Prasad Gupta, that the disputed route would be nationalised in case the latter pursued in the Supreme Court the matter which had earlier been decided against him by the High Court.
(ii) The impugned order did not deal at all with objections of a personal nature which had been filed by the appellants and which, inter alia, indicated that the scheme would operate to the great disadvantage of the appellants all of whom were plying buses on the disputed route and had invested huge sums of money for that purpose.
(iii) The impugned order did not record specific findings on any of the objections of a "personal nature" and was liable to be quashed for that reason alone.
(iv) It was incumbent on the author of the impugned order to compare the services rendered by the appellants with those to be rendered by the S.T.U. That not having been done, the impugned order and the 1970 notification were both vitiated.
The High Court went at length into the question of mala fides and rejected the contention of the appellants in that behalf mainly on the ground that it was not Shri Hanumant Singh Negi who had initiated the nationalisation of the disputed route but that it was the State Government under whose decision the impugned scheme was formulated.
In support of ground (ii) reliance on behalf of the appellants was placed before the High Court mainly on Gullapalli Nageswara Rao and Others vs Andhra Pradesh State Road Transport Corporation and Another, which was decided by a Bench of five Judges of this Court.
The crucial question before the Court in that case was whether the authority deciding the objections under section 680 of the Act was bound to act judicially.
Subba Rao, J. (as he then was), who answered the question in the affirmative on behalf of the majority consisting of himself, Das, C.J., and Bhagwati, ., dealt at length with the provisions of sections 68C and 68D of the act and while concluding that the matter partook the character of a dispute between two parties, observed: "The citizen may object to the scheme on public grounds or on personal grounds.
He may oppose the scheme on the ground that it is not in the interest of the public or on the ground that the route which he is exploiting should be excluded from 1010 the scheme for various reasons.
There is, therefore, a proposal and an opposition and the third party, the State Government is to decide that lis and prima facie it must do so judicially.
The position is put beyond any doubt by the provisions in the Act and the Rules which expressly require that the State Government must decide the dispute according to the procedure prescribed by the Act and the Rules framed thereunder, viz., after considering the objections and after hearing both the parties.
It therefore appears to us that this is an obvious case where the Act imposes a duty on the Stale Government to decide the act judicially in approving or modifying the scheme proposed by the transport undertaking.
The scheme propounded may exclude persons from a route or routes and the affected party is given a remedy to apply to the Government and the Government is enjoined to decide the dispute between the contesting parties.
The statute clearly, therefore, imposes a duty upon the Government to act judicially.
Even if the grounds of attack against the scheme are confined only to the purposes mentioned in section 68C we cannot agree with this contention the position will not be different, for, even in that case there is a dispute between the State transport undertaking and the person excluded in respect of the scheme, though the objections are limited to the purposes of the scheme.
In either view the said two provisions, sections 68C and 68D, comply with the three criteria of a judicial act laid down by this Court.
" (emphasis supplied) Emphasis before The High Court was laid on the under lined portions of the above observations.
On the other hand, attention of the Court was invited to Capital Multi Purpose Co operative Society Bhopal and Others vs The State of M.P. & Others.
on behalf of the State for the proposition that the objections to the impugned scheme had to be related to the four purposes indicated in section 68C of the Act.
After giving consideration to the matter the High Court held: "There can be no quarrel with the proposition that an objection of a personal nature can be filed but it should be for the purposes of showing that the four purposes indicated in section 68C cannot be achieved.
In other words objections of the nature that the petitioners will suffer hardship and there will be financial loss to the petitioner or that the petitioners have 1011 invested large amount cannot per se be sufficient to nullify a scheme of the nature referred to above unless they have a material bearing on the purposes indicated in section 68C of the Act.
When a scheme is framed for nationalisation of a route, whether wholly or partly, the necessary consequence will be that the persons who have invested their money in purchasing vehicles will be displaced and that there will be loss in their earnings.
If this could have been the ground for rejecting or modifying a scheme, no scheme could be taken up.
A bare perusal of section 68C indicates that the purpose of the scheme is to provide an efficient, adequate, economical and properly coordinated road transport service which is necessary in public interest, and such a scheme will be liable to be approved under the provisions of the Act.
The objections of personal nature in the instant case in our opinion fail to establish that the four purposes which are sought to be achieved by the scheme will not be achieved and for that reason the scheme should either be rejected or modified.
" Ground (iii) was repelled by the High Court with a remark that even if objections of a personal nature were covered by section 68C the impugned order was not liable to be quashed merely on the ground that its author did not record specific findings thereon.
Support for this view was sought from a Full Bench decision of the same Court reported as Khuda Dad Khan vs State of U.P. and others The last ground of attack against the impugned order and the 1970 notification also did not find favour with the High Court as, according to it, in Capital Multi Purpose Co operative Society Bhopal and others vs The State of M.P. & others (supra), the Supreme Court had taken the view that it was not necessary for the concerned authority to compare the services rendered by the private operators with those to be expected from the S.T.U.
It was in these premises that the High Court passed the judgment under appeal.
Out of the grounds put forward before the High Court on behalf of the appellants, two, namely, those listed at serial Nos.
(i) and (ii) above were not pressed before us by their learned counsel, Shri section N. Kacker, who, however, argued the point covered by ground (iv) with great force and also challenged the finding recorded by the High Court in relation to ground (iii).
In order to determine 1012 the questions raised before us and canvassed by learned counsel for the parties it is necessary to undertake an analytical study of sections 68A to 68E contained in Chapter IVA which was added to the Act by Central Act 100 of 1956.
Section 68A contains two definitions According to it "(a) 'road transport service ' means a service of motor vehicles carrying passengers or goods or both by road for hire or reward; "(b) 'State transport undertaking ' means any undertaking providing road transport service, where such undertaking is carried on by, (i) the Central Government or a State Government; (ii) any Road Transport Corporation established under section 3 of the ; (iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments, or by the Central Government and one or more State Governments.
" Section 68B gives over riding effect to the provisions of Chapter IVA.
Contents of sections 68C and 68D are reproduced below: "68C. 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 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 transport under taking 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 every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct." "68D. (1) on the publication of any scheme in the Official Gazette and in not less than one newspaper in regional language circulating in the area or route which is proposed to be covered by such scheme 1013 (i) any person already providing transport facilities by any means along or near the area or route proposed to be covered by the scheme; (ii) any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government; and (iii) any local authority or police authority within whose jurisdiction any part of the area or route proposed to be covered by the scheme lies, may, within thirty days from the date of its publication in the official Gazette, file objections to it before the State Government. "(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.
" Sub section (1) of section 68E gives to the S.T.U. power to cancel or modify at any time any scheme published under sub section (3) of section 68D and provides that "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 cancelled or modified as if the proposal were a separate scheme." Sub section (2) of section 68E confers on the Stale Government the power to modify a scheme published under sub section (3) of section 68D after giving the S.T.U. and any other person likely to be affected by the proposed modification an opportunity of being heard in respect thereof. 6.
A bare reading of the sections noted above makes it clear that they provide for nationalisation of road transport services.
However, such nationalisation, in view of the provisions of section 68C, 1014 is not nationalisation or nationalisation 's sake but nationalisation with a view to the achievement of certain specified objects.
A break up of the section brings out the following essential features.
(a) The S.T.U. is competent to prepare and publish a scheme under section 68C only after it has formed the opinion that it is necessary in the public interest that road transport services covered by the scheme should be run and operated by itself, whether to the exclusion, complete or partial, of other persons or otherwise.
(b) The necessity for the road transport services to be run and operated by the S.T.U. must flow, in its opinion, from the purpose of providing an efficient, adequate, economical and properly coordinated road transport service.
Unless a scheme conforms to these two conditions it will fall outside the ambit of section 68C. Section 68D gives the right to certain persons, associations and authorities to file objections to a scheme published under section 68C within the specified period of 30 days of its publication and also lays down the procedure for the hearing and disposal of such objections by the State Government.
An important feature of sub section (2) of the section is that (every objector or his representatives and the representatives of the S.T.U. have to be given an opportunity of being heard in the matter and it is only thereafter that the State Government has to exercise its power to approve or modify the scheme, which power includes the power not to approve the scheme at all and to drop it in its entirety), as held in Malik Ram v State Of Rajasthan (981).
The procedure provided in section 68D is thus designed to (a) enable parties affected by the scheme, to point out flaws therein, (b) enable the State Government to find out which flaws, if any, the scheme suffers from, and (c) enable the State Government either to remedy the flaws by a suitable modification of the scheme or to rescind the scheme altogether.
This brings us to the main point of controversy in the case, that is, the nature of objections which parties affected by a scheme may prefer to it.
Section 68D does not specify the type of objections 1015 envisaged by it but Then their purpose being to point out flaws in the scheme they must be confined to the matters covered by section 68C.
In the opinion forming the basis of the scheme does not suffer from errors such as may render it obnoxious to the dictates of section 68C and on the other hand, conforms to the conditions laid down in that section, the scheme would be unobjectionable.
Objections may thus be made to show : (a) that it is not necessary in the public interest for the concerned road transport services to be operated by the S.T.U.; (b) that it is not necessary in the public interest that such services be taken over by the S.T.U. to the complete exclusion (if such exclusion is envisaged by the scheme) of other persons and that their partial exclusion would suffice; (c) that it is not necessary in the public interest that such ser vices shall be taken over by the S.T.U. even to the partial exclusion of others; (d) that the scheme is not calculated to provide an efficient road transport service; (e) that the scheme would not provide an adequate road transport service; (f) that the road transport service envisaged by the scheme would not be economical, or (g) that the road transport service provided for by the scheme would suffer from lack of proper coordination.
Objections falling outside the seven categories above set out would not be admissible inasmuch as they would not have anything to do with any of the conditions which a scheme must satisfy in order to be covered by section 68C. To this conclusion there is no challenge from either side, but then it has been vehemently contended on behalf of the appellants that a comparison of the road transport services operating on the route covered by a scheme with those envisaged by the scheme itself may be necessary in order to find out if the scheme conforms to the provisions of section 68C and this contention is controverted by learned counsel for the respondents on the strength of Capital Multi Purpose Co operative Society Bhopal and Others vs The State of M.P. & Others, wherein Wanchoo, J., speaking for a Bench of this Court which consisted of himself, Bachawat and Ramaswami, JJ., observed: 1016 "We are further of opinion that there is no question of consideration of comparative merits of the State Transport Undertaking and the private operators in the context of Chapter IV A.
As we have said already Chapter IV A was enacted for nationalisation of road transport services in accordance with the amendment made in article 19(6) of the Constitution.
The nationalised road transport under that Chapter can only be run by the State Transport Undertaking as defined in section 68 A(b) of the Act.
In view of that fact, if nationalisation has to come as envisaged by the amendment of the Constitution, the only body which can run the nationalised service is the State Transport Undertaking, and in those circumstances we fail to see any necessity for comparison between a State Transport Undertaking on the one hand and individual operators on the other. "Apart from this general consideration, we are further of opinion that ordinarily no question of comparative merits based on past record between a State Transport Undertaking and individual operators can arise.
Section 68 C provides the State Transport Undertaking has to run an efficient, adequate, economical and properly coordinated road transport service, and for doing that it does not take up just one route and put one transport vehicle on it.
It takes up a large number of routes and puts a large number of transport vehicles on them in order to run an integrated service whether for passengers or for goods, or for both.
In these circumstances it is difficult to see how one can compare such an undertaking with individual private operators who are running one transport vehicle or so on individual routes.
Secondly, it would be unusual for the State Transport Undertaking to be running transport vehicles on individual routes before it produces a scheme for nationalisation of the type provided for in Chapter IV A, though it may be conceded that this may not be quite impossible, for some State transport undertaking might have entered into competition with private operators and might have obtained permits under Chapter V; (see for instance Parbani Transport Co operative Society Ltd. vs The Regional Transport Authority, ; Even so, when the State transport undertaking takes action under Chapter IV A of the Act there can in our opinion be no question of comparison between a State transport undertaking running an integrated service and individual operators running one transport vehicle or more on individual routes.
We are therefore of opinion that 1017 the authority cannot be said to have gone wrong in not asking for past records of the Corporation in the present case for purposes of such comparison.
It is true that section ' 68 C requires that the scheme should be in public interest.
But unless the scheme is shown not to be efficient, adequate, economical and properly coordinated, it will in our opinion generally follow that it is in the public interest.
We do not think therefore that the comparative merits of the Corporation as against individual operators require to be judged under Chapter IV A in the public interest." A careful study of these observations would show that they were meant to exclude from consideration a comparison between the S.T.U. and private operators for the purpose of finding out which of them should be preferred on the basis of their past performance and not to declare irrelevant a comparison between the service envisaged by the scheme and pre existing services for the purpose of determining whether the scheme as framed provides for the operation of a service which would be efficient, adequate, economical and properly coordinated.
Normally, as pointed out by Wanchoo, J., a S.T.U. takes up a large number of routes and puts a large number of vehicles on them in order to run an integrated service while private operators cater to individual routes and may not, therefore, be in a position to provide what is described in section 68C as "a properly coordinated service".
That does not mean, however, that.
all schemes, howsoever framed, would in the very nature of things provide for services which conform to the quality insisted upon by section 68C. As stated above, objections calculated to show that a scheme does not provide a road transport service which can be considered efficient, adequate, economical or properly coordinated would certainly lie; and the adjectives "efficient", "adequate", "economical" and "properly coordinated" are not absolute but more or less comparative terms.
A service consisting of only one round trip per day may be adequate if the traffic on the concerned route is lean.
On the other hand, a hundred round trips may not be adequate for a route burdened with heavy traffic.
If a private operator is running 10 buses either way and is sought to be replaced by the S.T.U. under a scheme which makes provision only for five round trips per day the proposed road transport service cannot be considered adequate if the number of round trips required to fully cope with the traffic is more than five.
Efficiency of the service covered by a scheme may similarly have to be determined in comparison to that which pertains to the pre existing services.
Economics and proper coordination of the service proposed in a scheme may again be 1018 matters for which a comparison with the pre existing services is called for.
In order to find out, therefore, if the scheme fulfils the requirements of section 68C a comparison of the attributes of the two services, such as quality, capacity, financial implications and coordination would certainly fall within the scope of the inquiry to be conducted by the State Government, although a comparison, would not be permissible for the sole purpose of finding out whether the private operators should be given a preference over the S.T.U.
If such a comparison as we have held to be permissible is ruled out, the result would be to shut out from the enquiry held by the State Government under section 68D most of the material relevant for determination of the validity of the scheme a result contemplated neither by section 68D nor by Wanchoo, J., in the observations above quoted, which, on the other hand, make it clear that the proposed scheme may certainly be shown (in whatever way it is possible) not to fulfil the criteria of efficiency, adequacy, economy and proper coordination.
The comparison ruled out by him was not between the merits of the rival services but between the expectations from their operators in view of their respective past records including these relating to other areas and routes.
The High Court thus erred in arriving at the conclusion that The Capital Multi Purpose case eschewed all comparison and its finding in that behalf, in so far as it runs counter to the opinion expressed by us above, is set aside.
We may in passing refer to what are called objections of a "personal" nature.
These may be of two types: (1) those challenging the scheme on the ground that it harms an existing operator and, (2) those which indicate the details of the services afforded by an existing operator for the purpose of showing that the service envisaged by the scheme would in comparison not be efficient, adequate, etc.
Objections of the second type, as we have just above concluded, would be admissible for the reasons stated.
Those of the first type, however, would be wholly irrelevant to the determination of the validity of the scheme in view of the postulates of section 68C and would, therefore, be inadmissible.
This proposition may appear at first sight to run counter to those observations of Subba Rao, J., in Gullappalli 's case (supra) which we have extracted above but this is not really so.
Those observations were made in the course of consideration by this Court of the sole question whether the State Government, in deciding objections under section 68D, acted judicially or purely in an administrative capacity.
The answer to that question, according to Subba Rao, J., depended on whether the matter before the State Government amounted to a lis; and it 1019 was in that connection that he said that the citizen may object to the scheme on public grounds or on personal grounds and also that the Court did not agree with the contention that the grounds of objection against the scheme were confined only to those mentioned in section 68C. The Court was not called upon to decide as to whether the scheme of sections 68C and 68D embraced objections of a "personal" nature or not and it was only incidentally that reference thereto was made.
We conclude that Gullapalli 's case (supra) is no authority for the proposition that "personal" objection not confined to the scope of the requirements of section 68C are admissible under section 68D. 9.
Referring to ground (iii) pressed in the High Court on behalf of the appellants, Shri Kacker made a serious grouse of the fact that the impugned order did not so much as mentioned those objections made by the appellants which called for a comparing of the type held by us to be permissible and he contended that the impugned order was bad on that account.
In reply learned counsel for the respondents argued that at the hearing before the State Government no such objections were pressed.
Our attention has been drawn by Mr. Kacker to paragraphs 14, 20(a), 21, 26, 43, 49? 51, 61, 63, 64, 73 and 75 of the statement of objections forming annexure to the petition under Article 226 of the Constitution before the High Court.
A perusal of those paragraphs makes it abundantly clear that quite a few of the objections were such as were related to the purposes mentioned in section 68C and called for a comparison of the proposed service with the existing one.
That some of these objections were pressed before the State Government is apparent from the written arguments which were submitted to Shri section K. Bhargava who is the author of the impugned order and which were appended to the petition under Article 226 or the Constitution of India before the High Court in the form of Annexure J.
The stand of the respondents to the contrary is thus not well founded.
But then we further find that in the impugned order its author has devoted five paragraphs to the objections which called for comparison of both the types above discussed.
In paragraphs 24 to 27 the impugned order rightly rejects the objections which were based on a comparison of the S.T.U. with the private operators in relation to their respective past performances, and in doing so relies correctly on The Capital Multi purpose case.
It proceeds then (in paragraph 28) to take note of the further opinion expressed in the same case from which it follows that a scheme may nevertheless be shown not to be in public interest by demonstrating 1020 that it does not provide for a service which would be efficient, adequate, economical and properly coordinated; but then dismisses the matter with the remark that the appellants had not been able "to show anything substantial which may justify this inference that the proposed scheme in respect of the routes in question would not be efficient, adequate, economical and properly coordinated", a remark which is obviously meant to dispose of those objections to the scheme which called for a comparison of the service envisaged by it with that already available.
The cryptic remark no doubt neither lists the objections disposed of by it nor discusses the relevant evidence but the reason for the absence of a discussion in this behalf appears to be that no such evidence had been produced before the State Government.
And if that be so, much fault cannot he found with the brevity of the contents of paragraph 28.
However, Mr. Kacker made another grouse in this connection, namely, that the State Government refused to summon witnesses and to enforce the production of documents at the request of the appellants and that in doing so it had acted illegally and by thus shutting out evidence had really denied to the appellants any real opportunity of being heard.
We find that when the case was at the evidence stage before the State Government, the appellants submitted two applications requesting that witnesses, one of whom, namely, the Secretary, Legislative Assembly, U.P. was to bring the proceedings of that Assembly, relating to the speech of the Chief Minister delivered on the 13th July 1967 in relation to the budget of the Transport Department, be summoned through letters of request and examined.
The applications were rejected by Shri S.K. Bhargava through an order dated the 20th March 1969, the relevant part of which runs thus: .
"It is nat necessary to issue letters of request as prayed for.
The objectors can only examine those witnesses whom they themselves brought.
It is also not necessary to send for any record as prayed.
No further reasons appear in the order for a rejection of the prayer made for issuing letters of request but it seems that while making the order Shri Bhargava had in mind the provisions of sub rules (2) and (4) of rule 7 of the Rules and of the absence from the Act and the Rules of any express provision conferring on the State Government the right to issue process for enforcing the attendance of witnesses and the production of documents.
The said two sub rules may be reproduced: 1021 "(2) The said officer shall fix the date, time and place for the hearing of the objections and issue notices thereof to the objector, and the representatives of the State transport undertaking, calling upon them to appear before him in person, or through a duly authorised agent or counsel and to produce their oral and documentary evidence on the date fixed for hearing." "(4) Subject to the provisions of sub rule (7) the objector and the State transport undertaking shall produce their evidence and witnesses, necessary and relevant to the inquiry, on the first date fixed for the hearing.
" The contention raised on behalf of the respondents is that the power the exercise of which the appellants sought by their applications had not been conferred by the Act or the Rules on the State Government and that, therefore, the order passed by Shri Bhargava was correct.
We find substance in this contention.
It is true that the State Government was acting in the discharge of its quasi judicial functions and it could devise its own procedure (in the absence of express provisions to the contrary) so that its functions could be effectively discharged.
Further, when the statute gives the power to the State Government to afford to the objectors a reasonable opportunity of being heard and to take evidence, oral as well as documentary, in support of their objections the power to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and needs no statutory sanction, although the power to enforce their attendance or compel them to produce documents is lacking on account of absence of conferment thereof by a statute.
This view finds support from Nehru Mot Transport Co operative Society Limited vs The State of Rajasthan, in which also the argument raised was that there could be no effective hearing without a provision or coercive process compelling attendance of witnesses and production of documents.
It was pointed out in that case that the Rajasthan Rules did not provide for compelling the attendance of witnesses and that it was enough if the authority took evidence of witnesses whom the objector produced before it.
It was also remarked that the authority might 1022 help the objector to secure their attendance by issue of summonses, though in the absence of any provision in the law, the witnesses might or might not appear in answer thereto.
But then the question arises whether an order of the State Government rejecting a prayer for issuance of summons or letters of request would be illegal.
This question was answered in the negative by Wanchoo, J., in the Capital Multi purpose case (supra) with the following observations: "Further, reliance in this connection is placed on the observation of this Court in Nehru Motor Transport Co operative Society 's case (supra) that the authority might help the objectors by issuing summonses.
This observation in our opinion does not mean, in the absence of any provision in the Act or the Rules, that the authority was bound to summon witnesses even though the persons summoned were not bound to obey the summonses as there was no provision in law for issue of such summonses.
The use of the words 'by issue of summonses ' in the circumstances of that case was by oversight, for issue of summonses presumes that there is authority to issue them and the person to whom they are issued is bound to obey.
But in the absence of such power all that the authority can do is to issue letters merely requesting persons to appear and it is open to those persons to appear or not.
In this situation if an authority decides not to issue such letters it cannot be said that there was no effective hearing.
" These observations have our concurrence and we do not find that any right of the appellants was infringed when their applications for summoning witnesses and production of documents were rejected.
Here we may briefly advert to another aspect of the matter to which our attention was drawn on behalf of the respondents.
Sub rule (5) of rule 5 of the Rules states "A person filing an objection and desiring to be heard shall also submit along with the memorandum of objections, a list of documents and witnesses with their names and addresses and a brief summary of the nature and type of evidence which each such witness is likely to give." No compliance with this rule was made by the appellants when the two applications just above considered were filed.
The sub rule serves a salutary purpose and, that is, that the inquiring authority may shut out all evidence which is sought to be brought on the record 1023 but which is either irrelevant or otherwise inadmissible.
The two applications, therefore, suffered from a serious flaw by reason of which alone they merited dismissal unless the summary insisted upon by sub rule (5) was supplied before they were disposed of. 10.
In the result the appeal must fail in spite of the fact that we have accepted one main contention raised by Mr. Kacker, namely, that objections involving comparison of the pre existing services with those proposed in a scheme are relatable to the ingredients of section 68C and are, therefore, admissible under section 68D of the Act.
Accordingly it is dismissed but with no order as to costs.
S.R. Appeal dismissed.

summary/full:
Dismissing the appeal by special leave, the Court ^ HELD: (1) A bare reading of sections 68A to contained in Chapter IV A, which was added to the Act by Central Act 100 of 1956, makes it clear that they provide for nationalisation of road transport services.
However, such nationalisation, in view of the provisions of section 68C, is not nationalisation for nationalisation 's sake but nationalisation with a view to the achievement of certain specified objects.
Unless a scheme conforms to the two conditions referred to in section 68C, namely, (a) the S.T.U. is competent to prepare and publish a scheme under section 68C only after it has formed the opinion that it is necessary in the public interest that road transport services covered by the scheme should be run and operated by itself, whether to the exclusion, complete or partial, of other persons or otherwise; and (b) the necessity for the road transport services to be run and operated by the S.T.U. must flow, in its opinion, from the purpose of providing ar.
efficient, adequate, economical and properly coordinated road transport service, it will fall outside the ambit of section 68C. [1012A, 1013H, 1014A C] Section 68D gives the right to certain persons, associations and authorities to file objections to a scheme published under section 68C within the specified period of thirty days of its publication and also lays down the procedure for the hearing and disposal of such objections by the State Government.
The procedure provided in section 68D is designed to (a) enable parties affected by the scheme to point out flaws therein; (b) enable the State Government to find out which flaws, if any, the scheme suffers from, and (c) enable the State Government either to remedy the flaws by a suitable modification of the scheme or to rescind the scheme altogether.
Under section 68(2), every objector or his representatives and the representatives of the S.T.U. have to be given an opportunity of being heard in the matter and it is only thereafter that the State Government has to exercise its power to approve or modify the scheme, which power includes the power not to approve the scheme at all and to drop it in its entirety.
[1014D F] Malik Ram vs State of Rajasthan, ; at 981, followed.
1006 Section 68D does not specify the type of objections envisaged by it but then their purpose being to point out flaws in the scheme they must be confined to the matters covered by section 68C.
If the opinion forming the basis of the scheme does not suffer from errors such as may render it abnoxious to the dictates of section 68C and on the other hand, conforms to the conditions laid down in that section, the scheme would be unobjectionable.
Objections may thus be made to show: (a) that it is not necessary in the public interest for the concerned road transport services to be operated by the S.T.U.; (b) that it is not necessary in the public interest that such services be taken over by the S.T.U. to the complete exclusion (if such exclusion is envisaged by the scheme) of other persons and that their partial exclusion would suffice; (c) that it is not necessary in the public interest that such services shall be taken over by the S.T.U. even to the partial exclusion of others; (d) that the scheme is not calculated to provide an efficient road transport service; (e) that the scheme would not provide an adequate road transport service; (f) that the road transport service envisaged by the scheme would not be economical; or (g) that the road transport service provided for by the scheme would suffer from lack of proper coordination.
[1014H, 1015A E] Objections falling outside these seven categories would not be admissible inasmuch as they would not have anything to do with any of the conditions which a scheme must satisfy in order to be covered by section 68C. [1015E F] 2.
In order to find out if the scheme fulfils the requirements of section 68C a comparison of the attributes of the two services, such as quality, capacity, financial implications and coordination would certainly fall within the scope of the inquiry to be conducted by the State Government, although a comparison would not be permissible for the sole purpose of finding out whether the private operators should be given a preference over the State Transport Undertaking.
If such a comparison as held to be permissible is ruled out, the result would be to shut out from the enquiry held by the State Government under section 68D most of the material relevant for determination of the validity of the scheme a result contemplated neither by section 68D nor by the decision of this Court in ; [1018A C] Objections calculated to show that a scheme does not provide a road transport service which can be considered efficient, adequate.
economical o} properly coordinated would certainly lie; and the adjectives "efficient", "adequate", "economical" and "properly coordinated are not absolute but more or less comparative terms.
[1017E F1].
Capital Multi Purpose Co operative Society, Bhopal and others vs The State of Madhya Pradesh and others; , , explained.
Objections of a "personal" nature may be of two types.
(i) those challenging the scheme on the ground that it harms an existing operator and, (ii) those which indicate the details of the services afforded by an existing operator for the purpose of showing that service envisaged by the scheme would in comparison not be efficient, adequate, etc.
Objections of the second type would be admissible, while those of the first type, would be wholly irrelevant to the determination of the validity of the scheme in view of the postulates of section 68C and would, therefore, be inadmissible.
[1018E G] Gullapalli Nageswara Rao and others vs Andhra Pradesh State Road Transport Corporation and Another, [1959] Suppl.
1 S.C.R. 319, distinguished.
1007 4.
It is true that the State Government was acting in the discharge of its quasi judicial functions and it could devise its own procedure (in the absence of express provisions to the contrary) so that its functions could be effectively discharged.
Further, when the statute gives the power to the State Government to afford to the objectors a reasonable opportunity of being heard and to take evidence, oral as well as documentary, in support of their objections, the power to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and needs no statutory sanction, although the power to enforce their attendance or compel them to produce documents is lacking on account of absence of conferment thereof by a statute.
[1021D F] Nehru Motor Transport Co operative Society Limited vs The State of Rajasthan, [1964] 1 S.C.R. 220, followed.
Sub rule (5) of rule 5 of Uttar Pradesh State Transport Services (Development) Rules, 1958 serves a salutary purpose and, that is, that the inquiring authority may shut out all evidence which is sought to be brought on the record but which is either irrelevant or otherwise inadmissible.
[1022G H, 1023A] 6.
In the instant case, no right of the appellants can be said to be infringed when their applications for summoning witnesses and production of documents were rejected by the State Government and the rejection is not illegal.
[1022E F] Capital Multi Purpose Co operative Society, Bhopal and Others vs The State of Madhya Pradesh and Others, ; ; applied.


judgement:
Special Leave Petition No. 1262 of 1980.
From the Judgment and Order dated 19 2 1979 of the Allahabad High Court in C.M.W.P. No. 184 of 1975.
section N. Kaicker, Mrs. section Markendeya and section Markendeya for the Petitioners.
The Order of the Court was delivered by KRISHNA IYER, J. An order draped in relative brevity is sufficient since we are refusing leave to appeal although the issue raised is vires of a provision.
After due fulfillment of the obligation for oral hearing, we have considered the impact of two earlier decisions cited by Shri Kaicker sup 1025 posedly striking a note contrary to the judgment under attack but feel free why, bound to dismiss the petition for special leave not merely because the High Court is right but because justice to the travelling public a lost cause on our made roads conscientises to that course.
Tersely put, the petitioner is the grantee of permits to ply minibuses as contract carriages and in the grant a condition has been fastened that the vehicle shall not be more than seven years old.
Condition No. 18, relating to Mini Buses Contract Carriage permits, and the source of power, section 51 (2) (x) read thus: That the vehicle covered by the permit shall be not more than four years old counted from the date of registration at any time during the validity of the permit.
51(2) The Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely: (x) any other conditions which may be prescribed.
Section 51(2) (x) any other. 'Four years ' have been relaxed to seven years since September 23, 1978, the beneficiaries being the bus owners and the potential victims being the unknown casualties who have no 'poor lobby ' power.
The State must remember that it has responsibilities not merely to mini bus owners, but also to avoid the daily tragedies on the Indian high ways under the lethal wheels of these whirling carriages.
Section 51 (2) of the , is geared to public safety, not private profit and casts a solemn duty not to be deterred by any pressure except the pressure of social justice to Indian lives moving in buses, walking on roads or even standing on margins.
If the top killer road accident is to be awarded death sentence, section 51 and like provisions must receive severe enforcement.
In this spirit although backtracking from 4 year old models to 7 year old models the state imposed condition 18.
This was challenged artfully but unsuccessfully before the High Court and is attacked before us as ultra vires section 51(2) of the Act.
We will examine briefly the submission to reach the conclusion that mere lexical legalism cannot sterilise the sensible humanism writ large on section 51(2) (x).
If Indian life is not ultra vires Indian law every condition to save life and limb is intra vires such salvationary provision.
This perspective of social justice simplifies the problem and upholds the High Court.
Section 51(2) (x) authorises the impost of any condition, of course, having a nexus with the statutory purpose.
It is undeniable that human safety is one such purpose.
The State 's neglect in this area of policing 1026 public transport is deplorable but when it does act by prescribing a condition the court cannot be persuaded into little legalism and harmful negativism.
The short question is whether the prescription that the bus shall be at a seven year old model one is relevant to the condition of the vehicle and its passengers ' comparative safety and comfort on our chaotic highways.
Obviously, it is.
The older the model, the less the chances of the latest safety measures being built into the vehicle.
Every new model incorporates new devices to reduce danger and promote comfort.
Every new model assures its age to be young, fresh and strong, less likely to suffer sudden failures and breakages, less susceptible to wear and tear and moral fatigue leading to unexpected collapse.
When we buy a car or any other machine why do we look for the latest model ? Vintage vehicles are good for centenarian display of curios and cannot but be mobile menaces on our notoriously neglected highways.
We have no hesitation to hold, from the point of view of the human rights of road users, that the condition regarding the model of the permitted bus is within jurisdiction, and not to prescribe such safety clauses is abdication of statutory duty.
Two decisions Masi Ullah vs State Tribunal Appellate(1) and In re: Ramesh Chandra Tewari etc.(2) were cited as striking a contrary note.
The first deals with section 48(3) of the Act and prescription of the model or year of the make was held ultra vires because, lexically read, it was held that the expression specified description in section 48(3) did not cover, according to dictionaries, the year of manufacture of the vehicle.
We extract Black 's Law Dictionary on 'description ' to show how the model of a vehicle is obviously a facet of its description. 'Description ' means: (3) A delineation or account of a particular subject by the recital of its characteristic accidents and qualities.
So, dictionary versus dictionary leaves the matter at large, apart from the plain function of the court to gather the meaning, not under the dictatorship of dictionaries but guided by the statutory purpose without being deflected by logamachic exercises, the mischief to be countered and the public interest to be advanced.
We are clear that a later model is a better safeguard and, more relevantly to the point, the year of the make and the particulars of the model are part of the description.
1027 The unreported ruling in Civil Writ No. 7317 of 1975 interprets section 38 of the Act and the non issuance of the fitness certificate because the model was not recent enough.
May be the vehicle, regardless of the year of its make, may be fit and the refusal to certify fitness merely because it is old may not always be right.
But we see no conflict between a vehicle being fit to ride and the condition, as an additional requirement and safety factor, in the shape of the year of the model.
This is an extra measure, a further insurance against machine failure and cannot contradict the 'fitness ' provision.
More reasons are, superogatory, less discussion will leave the law obscure.
We hold the ration of the impugned ruling to be right and refuse leave to appeal.
S.R. Petition dismissed.

dataset_name: IN-Abs

summary/full:
Dismissing the special leave petition, the Court ^ HELD: 1.
Mere lexical legalism cannot sterilise the sensible humanism writ large on section 51(2)(x).
If Indian life is not ultra vires Indian law every condition to save life and limb is intra vires such salvationary provision.
[1025G] 2.
Section 51(2) of the , is geared to public safety, not private profit and casts a solemn duty not to be deterred by any pressure except the pressure of social justice to Indian lives moving in buses, walking on roads or even standing on margins.
If the top killer road accident is to be awarded death sentence, section 51 and like provisions must receive severe enforcement.
In this spirit although backtracking from 4 year old models to 7 year old models the state imposed condition 18.
Section 51(2) (x) authorises the impost of "any condition" of course having a nexus with the statutory purpose.
Human safety is one such purpose.
[1025D F, H] 3.
From the point of view of the human rights of road users, the condition regarding the model of the permitted bus is within jurisdiction and not to prescribed such safety clauses is abdication of statutory duty.
There is no conflict between a vehicle being fit to ride and the condition as an additional requirement and safety factor in the shape of the year and the model.
This is an extra measure, a further insurance against machine failure and cannot contradict the 'fitness ' provision.
[1126D, 1027A B]


judgement:
ition No. 350 of 1980.
(Under Article 32 of the Constitution) M. M. Abdul Khoder, V. M. Tarkunde and EMS Enam for the.
Petitioner.
V. J. Francis for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The lament of the petitioner, Gopalanachari, a septuagenarian languishing in a Kerala prison, is that in his case the law has become lawless and justice has fallen as the first casualty, a lot shared by several other prison mates.
He wrote a letter dated nil to one of us (Krishna Iyer, J) complaining of illegal detention under section 110 Criminal Procedure Code (for short, the Code) where upon the jurisdiction of this Court was invoked and the following order was made: Shri M. M. Abdul Kader Senior Advocate with Mr. E. M. Sardul Enarn, Advocate on Record will be appointed as amicus curiae for the petitioner.
Issue Show Cause Notice to the respondent state with a direction that the State shall furnish the total number of prisoners in the Sub Jail Kottayam, who are now kept in custody under section 110 Cr. P. C. and give further particulars as to how long they have been in prison on this score and whether the hearing of the cases under section 110 Cr. P. C. is over.
The Superintendent of the Jail will further furnish the number of prisoners in prison who are above seventy years old and below 25 years.
Copy of the Notice will be served on advocate amicus curiae as well as on Shri V. J. Francis, Advocate for the State.
order will also be issued to the Superintendent of the Jail apart from the State.
Post the matter on 2nd April, 1980.
1273 Even here we may state that Shri M. M. AbdulKader, Senior Advocate assisted by Shri E. M. Sadrul Enam, Advocate on Record, has rendered help as amicus curiae and enabled the court to set human rights in perspective in a section 110 situation.
Shri Tarkunde also, as intervener, has helped the court which, incidentally strengthens the current of participative justice since leading members of the bar and public organisations in the field taking part in the court process in the shape of assistance in the cause of justice lends reality to the democracy of judicial remedies.
The State, in response to the notice, put in a statement that in the Sub Jail at Kottayam there are as many as six prisoners detained under section 110 cf the Code.
Apparently, they have been suffering incarceration for several months, the petitioner himself having been in Jail iron 23 2 1980.
It is added by the Superintendent, Sub Jail that the petitioner "is well known habitual prisoner of the Kerala State. he is known as 'Kallan Gopalan ' " i.e., thief Gopalan.
In pathetic contrast to this stigmatising generalisation that the petitioner is a well known 'habitual ' we find the averment in the petition of the detainee that he has been falsely implicated without any regard for human rights.
His averments which have not been specifically contested may well be extracted: The case charged against me by the Kottayam Arpukkara .
Police in the Ettumanur Court is on night patrol, found hiding in the varanda of a shop, on asking the name and address: answered the name as Shankunni of Pala; on again questioning answered as Krishnan Kutty of Pankunnari.
and again on questioning, arrested on doubt as a "K. D." on the Pathanam Thitta Police Station and on enquiry it is found that the person is an ex criminal and not to be free; and for that, to obtain bail for two years, this is the charge against the person, submitted by the Police before the court.
I am 71 years old.
My native place is Pathanamthitta of Kottayam District.
While I was living in my house having loss of eyesight and hearing power due to old age, a Police man known to me earlier, saw me on a road near my house, saying that he has to enquire something, taken me in a van to Arpukkara Police Station, after putting me in the lock up for ten days produced me before the Court after making the record as having arrested me on the previous night of producing me before the Court.
But, it is such a position that if the bail alongwith the Bond as aforesaid is not furnished for a period of two years, I have to be inside the Jail for the said period.
1274 I submit before your Honour that I have much pain and agony that without considering that I am 71 years old and have difficulties due to that, and without seeing or giving remedy keeping me in the jail on such a fabricated case.
There is no indication even in the statement put in by the Superintendent that there has been any conviction by a criminal courts as yet.
The cases are pending, apparently without any sense of urgency and oblivious to the fact that for several months the petitioner has been deprived of his personal liberty even at the advanced age of 70.
If men can be whisked away by the Police and imprisoned for long months and the court can keep the cases pending without thought to the fact that an old man is lying in cellular confinement without hope of his case being disposed of, article 21, read with articles 14 and 19 of the Constitution, remain symbolic and scriptural rather than a shield against unjust deprivation.
Law is not a mascot but a defender of the faith.
Surely, if law behaves lawlessly, social justice becomes a judicial hoax.
A closer look at section 110 of the Code in the setting of peril to personal liberty thus becomes a necessity in this case.
Counsel for the State, Shri Francis, amicus curiae Shri Abdul Kader and Senior Advocate Shri Tarkunde, agreed that unless the preventive power under section 110 were prevented from pervasive misuse by zealous judicial vigilance and interpretative strictness; many a poor man, maybe cast into prison by sticking the label of 'habitual ' or by using such frightening expressions as 'desperate ', 'dangerous ' and 'hazardous to the community '.
Law is what the law does, even as freedom is what freedom does.
Going by that test, section 110 cannot be permitted in our free Republic to pick up the homeless and the have nots as it did when under British subjection because to day to be poor is not a crime in this country.
George Bernard Shaw, though ignorant of section 110, did sardonically comment that "the greatest of evils and the worst of crimes is poverty".
Article 21 insists that no man shall be deprived of his life or personal liberty except according to the procedure established by law.
In Maneka Gandhi case(l) this Court in clearest terms strengthened the rule of law vis a vis personal liberty by insisting on the procedure contemplated by article 21 having to be fair and reasonable, not vagarious, vague and arbitrary: The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non 1275 arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.
It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.(l) The principles and procedures are to be applied which, in .
any particular situation or set of circumstances, are right and just and fair.
Natural justice, it has been said, is only "fair play .
in action".
Nor do we wait for directions from Parliament.
The . common law has abundant riches; there may we find what Byles, J., called "the justice of the common law".
Procedural safeguards are the indispensable essence of liberty.
In fact, the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human right ring.
In India, because of poverty and illiteracy, the people are unable to protect and defend their rights; observance of fundamental rights is not regarded as good politics and their transgression as bad politics.
I sometimes pensively reflect that people 's militant awareness of rights and duties is a surer constitutional assurance of governmental respect and response than the sound and fury of the 'question hour ' and the slow and unsure delivery of court writ. .
To sum up, 'procedure ' in Article 21 means fair, not formal procedure. 'Law ' is reasonable law, not any enacted piece.
As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22.
It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 arc available.
The constitutional survival of section 110 certainly depends on its obedience to article 21, as this Court has expounded.
Words of wide import, vague amplitude and far too generalised to be safe in the hands of the Police cannot be constitutionalised in the context of article 21 unless read down to be as a fair and reasonable legislation with reverence for human rights.
A glance at section 110 shows that only a narrow signification can be attached to the words in clauses (a) to (g), "by habit a robber. ", "by habit a receiver of stolen property. ", 1276 "habitually protects or harbours thieve. ", "habitually commits or attempts to commit or abets the commission of . ", "is so desperate and dangerous as to render his being at large without security hazardous to the community".
These expressions, when they become part of the preventive chapter with potential for deprivation of a man 's personal freedom upto a period of three years, must be scrutinised by the court closely and anxiously.
The poor are picked up or brought up, habitual witnesses swear away their freedom and courts ritualistically commit them to prison and article 21 is for them a freedom under total eclipse in practice.
Courts are guardians of human rights.
The common man looks upon the trial court as the protector.
The poor and the illiterate, who have hardly the capability to defend themselves, are nevertheless not 'non persons ', the trial judges must remember, This Court in Hoskot 's case has laid down the law that a person in prison shall be given legal aid at the expense of the State by the court assigning counsel.
In cases under section 110 of the Code, the exercise is often an idle ritual deprived of reality although a man 's liberty is at stake.
We direct the trial magistrates to discharge their duties, when trying cases under section 11(), with great responsibility and whenever the counter petitioner is a prisoner give him the facility of being defended by counsel now that article 21 has been reinforced by article 39A.
Otherwise the order to bind over will be bad and void.
We have not the slightest doubt that expressions like "by habit", "habitual", "desperate", "dangerous", "hazardous" cannot be flung in the face of a man with laxity of semantics.
The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit, which is second nature, the counter petitioner .
is sure to commit the offences mentioned if he is not kept captive.
Preventive sections privative of freedom, if incautiously proved by indolent judicial processes, may do deeper injury.
They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot.
To call a man dangerous is itself dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available.
A sociologist may pardonably take the view that it is the poor man, the man without political clout the person without economic stamina, who in practice gets caught in .
the coils of section 110 of the Code, although, we as court, cannot subscribe to any such proposition on mere assertion without copious 1277 substantiation.
Even so, the court cannot be unmindful of social realities and be careful to require strict proof when personal liberty may possibly be the casuality.
After all, the judicial process must not fail functionally as the protector of personal liberty.
Indeed, several commissions, spread over decades, and even the Central Law Commission, in some of its reports, disclosed the presence in our midst of many habitual economic offenders and chronic corporate Criminals who, perhaps, may not be on the wanted list of the Police under section 110 of the Code although their dangerous activities may prove a hazard to the health and wealth of nation.
Referring to a similar situation in American Society, Ralph Nader in his introduction to a well documented book titled "America Inc." has observed: In no clearer fashion has the corporation held the law at bay than in the latter 's paralysis toward the corporate crime wave.
Crime statistics almost wholly ignore corporate or business crime; there is no list of the ten most wanted corporations; the law afford no means of regularly collecting data on corporate crime; and much corporate criminal behaviour (such as pollution) has not been made a crime because of corporate opposition.
For example, willful and knowing violations of auto, tire, radiation, and gas pipeline safety standards are not considered crimes under the relevant statutes even if lives are lost as a result.
The description of an array of corporate crimes in this forthright book reveals a legal process requiring courage, not routine duty, by officials to enforce the laws against such out rages.
The law is much more comfortable sentencing a telephone coin box 'thief to five years than sentencing a billion dollar price fixing executive to six weeks in jail.
In one recounting after another, the authors pile up the evidence towards one searing conclusion that corporate economic, product, and environmental crimes dwarf other crimes in damage to health, safety and property, in confiscation of theft of other people 's monies, and in control of the agencies which arc supposed to .
stop this crime and fraud.
And it all goes on year after year by blue chip corporate recidivists.
Why ? It is easy to answer "power".
But that is the beginning, not the end, of understanding.(l) True, American conditions are different from Indian conditions and these observations may not have necessary application to our societal situation.
The point of Ralph Nader has, however, some relevance.
1278 Let us allay misunderstandings.
We are clear in our mind that prevention is better than cure, in criminal law as in medicines especially when there is judicial supervision.
Society cannot be left at the mercy of predators and bandits who, like wild beasts, prey upon the weak and the innocent and become a menace to peace and security of society.
But personal liberty is a prized value and that is why we have insisted not merely upon the Police having to be careful before marching poor people into court under section but the Court itself having to be gravely concerned about using preventive provisions against helpless persons, not on formal testimony readily produced to order as we have noticed in a recent case, but on convincing testimony of clear and present danger to society.
In the present case, the petitioner has been too long in prison, and we take it that no circumstances placed before us justify keeping him longer in custody.
The trial magistrate will, having regard to the observations we have made, drop the proceedings in the interests of justice.
The other prisoner above 70 years also should be enlarged right away (Kutty Thankappan, U.T. No. 665).
We expect any Government which has any regard for human rights not to use section 110 of the Code, torturesome fashion, against the weak and the poor merely because they belong to the 'have not ' class and can be easily apprehended as 'habitual ' this or that or dangerous or desperate.
We draw the attention of the State Government to the likely misuse of the preventive provisions and expect it to issue suitable instructions to the Police minions so that the law will be legitimated by going into action where it must strike and by being kept sheathed where there is no need for indiscriminate display.
With these observations, we direct the release of the petitioner and Kutty Thankappan, U.T. No. 665 on their.
Own bonds until formal orders are passed by the trial court in the regular criminal proceedings under section 110 of the Code.
P.B.R. Petition allowed.

summary/full:
In a letter addressed to one of the Judges of this Court (V. R. Krishna Iyer, J.) the petitioner complained that he had been illegally detained under section 110, Cr. P. C.
In response to this Court 's notice the Superintendent of Sub Jail stated that the petitioner was "a well known habitual prisoner" of the Kerala State and was known as "thief Gopalan".
In his reply the detenu stated that being unable to see or hear because of his extreme old age of 71 years he was staying in his house in his native place and that one night a policeman took him from his house in a van to the police station saying that he had to inquire something from him and after putting him in the lock up for 10 days produced him before the Court as a person having been arrested the previous night.
He further stated that the charge against him was that on the night patrol one night a policeman found him hiding in a verandah of a shop and that on being asked his name and address he gave one name first and another name a little later and that on inquiry it was found that he was an ex criminal not to be let free.
Allowing the petition.
^ HELD: In the interests of justice proceedings against the petitioner must be dropped.
Section 110 cannot be permitted to pick up the homeless and the have nots as it did under British subjection because today to be poor is not a crime in this country.
[1274F] Article 21 insists that no man shall be deprived of his life or personal liberty except according to the procedure established by law.
In Maneka Gandhi vs Union of India [1978] 1 SCC 248 this Court in clearest terms strengthened the rule of law vis a vis the personal liberty by insisting on the procedure contemplated by article 21 having to be fair and reasonable not vagarious, vague and arbitrary.
[1274G] The constitutional survival of section 110 depends on its obedience to article 21.
Words of wide import, vague amplitude and far too generalised to be safe in the hands of the Police cannot be constitutionalised in the context of article 21 unless read down to be as a fair and reasonable legislation with reverence for human rights.
A glance at section 110 shows that only a narrow signification can be attached to the words in clauses (a) to (g) namely "by habit a robber", "by habit a receiver of stolen property", "habitually protects or harbours thieves", "habitually commits or attempts to commit or abets the commission of . " "is so desperate and dangerous as to render his being at large without security hazardous to the community '.
Expressions like these cannot be flung in the face of a man with laxity of semantics.
The Court must insist on specificity of facts and be satisfied that one swallow 1272 does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit which is second nature the counter petitioner is sure to commit the offences mentioned if he is not kept captive.
Preventive sections privative of freedom, if incautiously proved by indolent judicial processes, may do deeper injury.
They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot.
To call a man dangerous is itself dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available.
[1275 G H, 1276 E G]