judgement:
Civil Appeals Nos.
258 259 of 59 and 404 of 60.
Appeals by special leave from the judgment and orders dated July 2, 1956, January 9, 1957 and June 16,1958 of the Bombay High Court in Special Civil Applications Nos. 1471, 1527 and 2990 of 56 and 1431 of 1958 respectively.
V.M. Limaye, V.L. Narasimha Moorthy, E. Udayaratnam and S.S. Shukla, for the appellants.
B.C. Kamble and A.G. Ratnaparkhi, for respondents Nos. 1 and 3 (in C. section No. 258/59).
S.G. Patwardhan, B.C. Kamble and A.G. Ratnaparkhi, for respondent No. 1 ( in C. A. No. 259/59) and the respondent in (C.A. No. 404 of 60).
Rameshwar Nath, for the respondent (in C.A. No. 9 of 60).
December 1.
The Judgment of the Court was delivered by SARKAR, J.
These four appeals are by landlords whose applications to the authorities under the Bombay Tenancy and Agricultural Lands Act, 1948 for possession of the lands held by their tenants, on the grounds had that the tenancy had been terminated by due notices on the tenants ' failure to pay rents for three years, were dismissed.
741 These authorities refused in three of these cases to make an order for possession either because the tenants had paid up all rent which had fallen in arrear or because the authorities thought it proper on the facts of the case to give them time to pay up.
They felt that the tenants were entitled to relief against forfeiture on equitable principles.
In the fourth case, which is covered by Civil Appeal No. 259 of 1959, it was held that there had not been on the facts of the case, default in payment of rent for three years and, therefore the tenant was entitled to statutory relief against eviction under section 25(1) of the Act which we shall later set out.
The High Court at Bombay by a summary order, without stating any reasons, refused to interfere when moved under article 227 of the Constitution.
The landlords have therefore filed these appeals with leave of this Court.
We shall now deal with the first three cases and later take up the fourth case.
In these three cases relief was granted to the tenants on the basis of certain observation of the High Court at Bombay in Sitaram Vithal Chitnis vs Gundu Satyappa Dhade, Special Civil Application No. 1695 of 1955, unreported, which we quote here: "Every court of equity will be extremely reluctant to enforce an order of ejectment against a tenant when the only ground on which the landlord seeks ejectment is failure to pay rent.
Therefore, if the tenant is willing to pay all arrears of rent, in our opinion, it would be inequitable to turn these tenants out when they are prepared to make good the arrears of rent.
" With great respect to the learned Judges of the High Court, we are unable to assent to the proposition so broadly put.
We now set out the relevant provisions of the Act.
742 section 5 (1) No tenancy of any land shall be for a period of less than ten years: Provided that at the end of the said period and thereafter at the end of each period of ten years in succession, the tenancy shall, subject to the provisions of sub secs.
(2) and (3), be deemed to be renewed for a further period of ten years on the same terms and conditions notwithstanding any agreement to the contrary.
(2) x x x x x x x x x x x x x x x x x x x x x x (3) Notwithstanding anything contained in sub sec.
(1): (a) every tenancy shall, subject to the provisions of sections 24 and 25, be liable to be terminated at any time on any of the grounds mentioned in section 14.
x x x x x x x x x x x x x x x x x x x x x x x x section 14(1) Notwithstanding any agreement, usage, decree, or order of a court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant: (a)(1) has failed to pay in any year, with in fifteen days from the day fixed. the rent of such land for that year.
x x x x x x x x x x x x x x x x Provided that no tenancy of any land held by a tenant shall be terminated on any of the grounds mentioned in this sub section unless the landlord gives three months ' notice in writing intimating the tenant his decision to terminate the tenancy and ground for such termination.
743 section 25(1)Where any tenancy of any land held by any tenant is terminated for non payment of rent and the landlord files any proceeding to eject the tenant, the Mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with the costs of the proceeding within fifteen days from the date of order, and if the tenant complies with such order, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order that the tenancy had not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated: Provided that if the Mamlatdar is satisfied that in consequence of total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due, the Mamlatdar may, for reasons to be recorded in writing, direct that the arrears of rent together with the costs of the proceedings if awarded, shall be paid within one year from the date of the order and that if before the expiry of the said period, the tenant fails to pay the said arrears of rent and costs, the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted.
(2) Nothing in this section shall apply to any tenant whose tenancy is terminated for non payment of rent if he has failed for any three years to pay rent within the period specified in section 14.
section 29(1) A tenant or an agricultural labourer or an artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar.
x x x x x x x x x x x x x x x x x x x x x x x x 744 (2) No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar.
For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him.
(3) On receipt of such application under sub section (1) or (2) the Mamlatdar shall, after holding an enquiry, pass such order thereon as he deems fit.
We are not concerned in these three cases with section 24 mentioned in section 5(3)(a).
The "date fixed" mentioned in section 14(1)(a)(i) is it may be stated the 20th of March of each year.
It is not in dispute in these cases that the tenants were in default in paying rents for three years within section 14(1)(a)(i) and due notices had been served by the landlords terminating the tenancies as required by the proviso to section 14(1).
By section 5, therefore, a tenancy under the Act is made to have indefinite duration being renewable for ten years at the end of every ten years and the landlord cannot put an end to the tenancy except under the provisions of the Act, one of which is section 14.
This is irrespective of any contract between the parties.
Under section 14 on the default in payment of a year 's rent occurring, the landlord may, if he so chooses, bring the tenancy to end by giving the prescribed notice.
If the tenancy is terminated, the tenant has, of course, no right to hold the land.
The landlord would then be entitled to recover possession of the land from him.
In view however of section 29(2), the landlord cannot do so except by an application made to a Mamlatdar for the purpose.
Now when such an application is made in case where the tenant has been in default for not 745 more than two years, section 25(1) would have to be applied and the Mamlatdar would have to give the tenant a chance to pay up and thereby annul the termination of the tenancy brought about under section 14.
In these three cases there is no controversy that the tenancies have been terminated under section 14.
There is also no dispute that the tenants are not entitled to be relieved against that termination under sub section
(1) of section 25 because of the provisions of sub sec.
(2) of that section, as in these cases the rent had not been paid for three years.
They however claim relief on the principle on which equity grants relief against forfeiture of tenancies.
The authorities under the Act have granted them the relief by applying this equitable principle.
In our opinion, the authorities were clearly in error in thinking that they could grant relief in these cases on equitable principles.
In equity relief may be granted to a tenant who has incurred a forfeiture under the terms of the tenancy, that is, his contract with the landlord.
Here, that is not the position.
The tenancies have been terminated in these cases under a statutory provision.
In the circumstances that have happened, the landlords have in our opinion acquired a statutory right to the possession of the lands and, therefore, to eject the tenants, the reasons for which view we shall discuss in some detail later.
In such a case, no relief can be granted to the tenants on equitable principles.
Equity does not operate to annul a statute.
This appears to us to be well established but we may refer to white and Tudors Leading Cases in Equity (9th ed.) p. 238, where it is stated, "Although, in cases of contract between parties, equity will often relieve against penalties and forfeitures, where compensation can be granted, relief can never be given against the provisions of a statute.
" 746 The order of the authorities taking away the landlords ' statutory right to possession by application of rules of equity cannot be supported.
It was then said that section 29(3) gives ample power to the authorities to refuse to make an order for possession in the landlord 's favour if the tenant pays up the arrears and the justice of the case requires that the tenant should not be deprived of the land.
That sub section no doubt says that the Mamlatdar "shall. pass such order thereon as he deems fit".
We are however wholly unable to agree that this provision warrants the making of any order that the authority concerned thinks in his individual opinion that the justice of the case requires.
We may here refer to R. vs Boteler where a statute which conferred power upon Justices to issue a distress warrant "if they shall think fit" was considered.
In that case the Justices had refused to issue the distress warrant.
Cockburn C. J. observed, "They went upon the ground that the introduction of this extra parochial place into the union was a thing unjust in itself; in other words, that the operation of the act of parliament was unjust.
I think, therefore it amounts virtually to saying, 'We know that we ought upon all other grounds to issue the warrant, but we will take upon ourselves to say that the law is unjust, and we will not carry out the law '.
That is not such an exercise of discretion as this Court will hold, in accordance with the authorities cited, to be one upon which it will act.
The Justices must not omit or decline to discharge a duty according to law.
" We think that is what the authorities in the three cases before us have done.
They have 747 refused to carry out the Act because they felt that it worked hardship.
They have refused to give to the landlords the relief which the Act said they should have.
Now, we feel no doubt that the Act provided that a tenant should be granted relief only in a case where he had not been in arrears with his rents for more than two years; in other words, if he had been in arrears for more than two years he was not to be given any relief against ejectment and the landlord would be entitled to an order for possession.
First, we have to point out that the tenancy having been terminated in terms of the statute, the statute would necessarily create a right in the landlord to obtain possession of the demised premises.
The tenancy having been terminated, the tenant is not entitled to remain in possession and the only person who would then be entitled to possession would be the landlord.
The statute having provided for the termination of the tenancy would by necessary implication create a right in the landlord to recover possession.
The statute recognises this right by providing by section 29(2) for its enforcement by an application to the Mamlatdar.
Indeed, section 29(2) itself mentions this right expressly for it says that the application shall be made within two years from the date on which "the right to obtain possession of the land" accrued to the landlord.
We repeat that this is a statutory right because it is the statute which fixes the term of the tenancy and also provides for its termination; it is not a contractual right which may be made subject to an equitable relief.
We turn now to section 25.
Under sub section
(1) of this section the tenant has a right to an order continuing the tenancy inspite of its termination by notice under section 14 for non payment of rent.
Sub section (2) however provides that sub section
(1) shall not be available to a tenant if he has failed for any three years to pay rent.
The result is that the statute itself 748 provides for relief to a tenant where such a termination has taken place and prescribes the conditions on which relief would be available.
It would follow that the statute indicates that the tenant would not have the relief in any other circumstances.
The result of this would inevitably be that the statute confers a right on the landlord to recover possession where the right under section 25(1) is not available to the tenant, which right he can enforce in the manner indicated.
That being so, section 29 (3) cannot be read as conferring on the authorities a power to annul this intendment of the Act.
The words "in lieu of making an order for ejectment" in sub section
(1) of section 25 support the view that the Act intends that except in the circumstances mentioned in it, the landlord is entitled as of right to get an order for possession from the Mamlatdar.
This view is further strengthened by the proviso to section 25 (1) which says that if the default in payment of rent had been caused by failure of crops or similar reasons, the Mamlatdar may give the tenant a year 's time to pay up and shall then provide in the order to be made by him that on the tenant 's failure to pay within that year, "the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted".
In such a case the Mamlatdar could not by virtue of his supposed powers under section 29(3) give further relief if the tenant failed to pay as directed, for the Act makes it incumbent on him to pass the conditional order of ejectment.
There, of course, is possession for the Act to have treated the cases under sub section
(1) and the proviso to it, differently.
This again is another reason for saying that the Act provides that apart from the circumstances mentioned in sub section
(1) of section 25 and the proviso to it, the landlord has on a termination of the tenancy, a right to obtain an order for possession in his favour.
It would be anomalous if the general words in s 29 (3) were to be construed as conferring power on the authorities to deprive him 749 of the right which the other provisions in the Act give him.
We think, therefore, that section 29 (3) only confers power to make an order in terms of the statute, an order which would give effect to a right which the Act has elsewhere conferred.
The words "as he deems fit" do not bestow a power to make any order on considerations dehors the statute which the authorities consider best according to their notions of justice.
Obviously, the provision has been framed in general terms because it covers a variety of cases, namely, applications by landlords and tenants in different circumstances, each of which circumstances may call for a different order under the Act.
One other argument under a similar head as dealt with previously, was that the tenants were entitled to relief against forfeiture under section 114 of the Transfer of Property Act.
Section 3 of the Act provides that "the provisions of Chapter 5 of the shall in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of land to which this Act applies".
The present contention of the tenents is based on this section.
It may be pointed out that ch.
5 of the includes sections 114 and 117.
The last mentioned section provides that nothing in ch.
5 shall apply to leases for agriculture purposes except in so far as the State Government by notification declare them to be applicable.
No such notification had been issued by the State Government.
Therefore, the landlords contend, section 114 does not apply to the present leases which are for agricultural purposes and the tenants are not entitled to relief under it.
It does not seem to us necessary to decide the question so raised.
In our view, the provisions in section 114 of the are inconsistent with the provisions of the Bombay and cannot, 750 therefore, under section 3 of the latter Act govern the tenancies to which it applies.
We have earlier stated that the Bombay Act clearly intended that relief against termination of tendency for non payment of rent would be given only in the cases mentioned in section 25(1) and in no others.
Under section 114 of the relief may be given in other circumstances.
Therefore, the provisions of this section are inconsistent with the provisions of the Bombay Act.
For this reason we do not think that the tenants in the cases before us are entitled to claim any relief under section 114 of the .
We think, therefore, that the tenants were not entitled to the relief which the authorities below granted them.
Before we pass on to the other appeal raising a different question, we have to refer to the case of Raghuvir Vyasaraya Acharya vs Gobind Mogre Bandekar were it had been held by Chagla C.J., that section 29 (3) justifies an order granting relief to the tenant and refusing to make an order for possession in favour of the landlord even where the tenant has not paid rent for more than two years.
We think that this case was wrongly decided.
Chagla C.J., held that section 25 did not confer any substantive right on the landlord to obtain possession and that section 29(3) conferred on the Mamlatdar a discretion to pass any proper order that he thought fit.
We think, for the reasons earlier stated, that on both these matters the learned Chief Justices was in error.
We repeat that under the Act the landlord gets a right to obtain possession of the demised premises on the termination of the tenancy under section 14 and that section 25 as also section 29 clearly recognises that right.
We turn now to the remaining appeal, namely Civil Appeal No. 259 of 1959.
The question raised here is whether for the purposes of section 25(2) a tenant 751 is to be considered as having failed to pay rent for any year in respect of which he had been granted relief under section 25(1).
The Revenue Tribunal, following a decision of the High Court at Bombay in Special Civil Application No. 2073 of 1955, unreported, held that where a landlord made an application for possession of the demised land on the failure of the tenant to pay rent for a year within the time prescribed in section 14, and the Mamlatdar granted relief to the tenant under section 25(1), the default was merged in the order of the Mamlatdar and could not thereafter be relied upon for the purposes of section 25(2).
We did not have the original judgment of the High Court placed before us and are not aware of the reasons which persuaded it to the view that it took.
In our opinion, that view is clearly incorrect, Section 25(2) says that nothing in section 25 which of course only means sub section (1) of that section shall apply to any tenant whose tenancy is terminated for non payment of rent if he has failed for any three years to pay rent within the period specified in section 14.
We are unable to appreciate the contention that when a tenant has been granted relief under section 25(1) in respect of any year 's default, the default merged in the order granting relief and deceased to be a default.
How can the default for the year merge in an order? No doubt relief has been given against the consequence of the default for the year, but that does not wipe out the default itself; it only prevents the termination of the tenancy, if any, consequent thereon, becoming effective.
Inspite of the relief granted under section 25(1), the tenant remains a tenant who made default in paying rent for the year within the period specified in section 14 and that is the tenant mentioned in section 25(2).
We find nothing in section 25(2) to justify the view that in such a case the year of default cannot be taken into account in computing the 752 three years there mentioned.
It is of some significance to point out that section 25(2) does not require three successive years of default but it is satisfied where the tenant has been in default for any three years.
If the interpretation put by the High Court were to be accepted, then a landlord wishing to recover possession of his land would have to wait till the tenant has committed default for three years, for if he took steps earlier and relief was granted to the tenant, he would not be able to recover possession after two more years of default by the tenant.
We see no justification for thinking that the Act intended to put so much difficulty in the way of landlords.
We, therefore, come to the conclusion that these appeals must succeed.
We set aside the orders of the High Court in the cases in which that Court had been moved and of the Revenue Tribunal and other authorities under the Bombay Act refusing to make an order for possession in favour of the landlords.
We direct that the respondent tenants make over possession of the lands held by them to their respective landlords.
The appellants will be entitled to costs throughout.
Appeals allowed.

dataset_name: IN-Abs

summary/full:
In the first three appeals the tenants were in default in paying rents for three years and due notices had been served by the landlords terminating the tenancies.
The landlords thus acquired statutory rights to eject the tenants and applied to the Mamlatdar, as required by section 29 of the Bombay Tenancy and Agricultural Lands Act, 1948, for possession over the lands.
The Mamlatdar refused to make an order for possession on the ground that the tenants were entitled to relief against forfeiture on equitable principles.
In the fourth appeal also the tenants had defaulted in paying rents for three years.
In respect of the default in the first year the tenant had been granted relief against forfeiture under section 25(1) of the Act.
The tenant contended that the default in the first year had merged in the order under section 25(1) and could not be relied upon far holding that he had defaulted for three years.
^ Held, that the landlords were entitled to orders for possession in all the four cases.
Upon default in payment of rent for three years a statutory right accrued to the landlords under section 25(2) to terminate the tenancy and to obtain possession.
There was no provision in the Act for granting relief against forfeiture in such a case; the provision in section 29(3) that the Mamlatdar "shall pass such orders as he deems fit" did not give him such a power.
The Act merely empowered him to grant relief where the tenant was not in arrears for more than two years.
No relief against forfeiture could be granted to the 740 tenants on equitable grounds; relief on equitable grounds could only be granted in cases of contractual rights and not in cases of statutory rights.
Nor could relief be granted under section 114 Transfer of Property Act as that provision was inconsistent with the provisions of the Bombay Act and was therefore inapplicable.
R. V. Boteler, (1864) 33 L. I. M. C. 101, referred to.
Raghuvir, Vyasaraya Acharya vs Govind Mogre Bandekar, , disapproved.
Held, further, that in the fourth appeal the default in the first year could also be taken into consideration in computing of three years inspite of the tenant having been relieved against forfeiture for that year.
The order granting the relief did not wipe out the default, it only prevented the termination of the tenancy for that default alone.


judgement:
Civil Appeal Nos.
524 to 539 of 1961.
Appeals by special leave from the judgment and order dated July 5, 1961, of the Patna High Court, in Misc.
Judicial cases Nos. 670 to 675 of 1959.
WITH Civil Appeal No. 434 of 1961.
Appeal by special leave from the judgment and order dated August 8, 1960, of the Patna High Court, in Misc.
Judicial Case No. 334 of 1960.
A.V. Viswanatha Sastri and B.P. Jha, for the appellants.
(in C. As.
534 to 538 and 434 of 1961).
B.P. Jha, for the appellant (in C.A. No. 539 of 1961).
Lal Narain Sinha, L.S. Sinha and S.P. Verma, for the respondents.
December 1.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
The judgment in Civil Appeal No. 534 of 1961 will dispose of Civil Appeals Nos. 535 to 539 of 1961.
In these appeals, private operators of omnibuses challenge the orders of the Appeal Board of the State Transport Authority, by which it set aside the renewal of the permits on certain routes granted by the South Bihar Regional Transport Authority, Patna.
The appellants held 730 previously stage carriage permits over certain routes and which were due to expire in December, 1958 or in January, 1959.
They had applied for renewal of their permits under section 58(2) of the Motor Vehicles Act.
Under a scheme framed and notified on July 8, 1957, vide Notification No. P 2 203/57T/4794, the route, Gaya to Khijirsarai, was notified under section 68D of the Motor Vehicles Act.
The Rajya Transport, Bihar, was exclusively allowed to operate on that route.
In Civil Appeals No. 535 to 538 of 1961, the Rajya Transport, Bihar, filed objections against the renewal of the permits.
In Civil appeals Nos. 534 and 539 of 1961, no objections were filed.
The route, Gaya to Khijirsarai, which may be called conveniently route 'AB ' formed part of routes, on which the appellants were operating and in respect of which they had asked for renewal of their permits.
The south Bihar Regional Transport Authority, however, renewed the permits of the appellants, holding that route 'AB ' was different from the routes, for which renewal was demanded.
Against the orders of the Regional Transport Authority, appeals were filed by the Rajya Transport, Bihar in all the cases, that is to say, in those cases in which the Rajya Transport, Bihar, had objected, and those in which it had not objected.
While these appeals were pending, the State of Bihar, acting under section 3 of the (64 of 1950) notified on April 20, 1959 as follows: "No. R.T. Cor.
1/59 3090 In exercise of the powers conferred by section 3 of the Road Transport corporation Act, 1950 (LXIV of 1950), the Governor of Bihar is pleased to establish with effect from the 1st May, 1959 a Road Transport Corporation, for the State of Bihar, to be called, the Bihar State Road Transport Corporation '.
731 2.
The said Corporation shall with effect from the said date, exercise all the powers and perform all the functions which are at present being exercised and performed by the Rajya Transport, Bihar.
By order of the Governor of Bihar.
K. B. Sharma, Dy.
" At the hearing of the appeals, the Government Advocate, Mr. Lal Narain Sinha, appeared for the Road Transport Corporation.
Objection was taken to the competency of the appeals on two grounds.
In those cases in which the Rajya Transport, Bihar, had not objected to the renewal of the permits before the Regional Transport Authority, it was contended that it had no locus standi to file appeals.
In those cases in which it had so objected, the ground was that the Road Transport Corporation could not, in law, represent the Rajya Transport, Bihar, in the appeals filed by the latter.
On merits, it was contented that the order of the Regional Transport Authority that route ' AB ' though part of the routes for which renewal was asked, was a different route, and the State Corporation had an exclusive right to ply omnibuses on routes 'AB ' did not affect the rights of the appellants to ply their omnibuses on routes, which were entirely different.
The Government Advocate contended that, on the analogy of the principle underlying O. 22, Re. 10 of the Civil Procedure Code, the Road Transport Corporation on which devolved the powers and functions of the Rajya Transport, Bihar, could prosecute the appeals.
He also contended, in the alternative, that he was representing also the Rajya Transport, Bihar, and that the appeals were not defective.
The Board accepted the argument of the Government Advocate, and set aside the orders of renewal passed by the Regional Transport Authority.
The appellants then filed petitions 732 under articles 226 and 227 of the Constitution challenging the order of the Board on many grounds.
The High Court, by its judgment dated July 5, 1961, dismissed all the petitions.
In the order under appeal, the High Court considered the competency of the appeals, and held that the Rajya Transport, Bihar, was competent to prosecute the appeals before the Appeal Board.
In dealing with the question whether the Appeal Board was entitled to interfere with the order of the Regional Transport Authority at the instance of the Rajya Transport in those cases, where the Rajya Transport had not filed objections under the Motor Vehicles Act, the High Court held that it was not necessary to express an opinion on the correctness of the argument, because the Regional Transport Authority was not competent to grant a renewal, inasmuch as such a grant was a direct violation of the scheme approved by the State Government and published in the Official Gazette.
On the merits, the High Court was of opinion that under section 68F(2) (c) (iii), the Regional Transport Authority could curtail the length of the route covered by the permit, and exclude the portion, which overlapped a notified route.
The present appeals have been filed against the order of the High Court, with the special leave of this Court.
These appeals thus fall into two groups.
In one group are Civil Appeals Nos. 534 and 539 of 1961 and in the other are Civil Appeals Nos.
535 to 538 of 1961.
In the former, the grant of renewal of the permits has been made without any objection, and in the latter, in spite of the objections filed by the Rajya Transport.
The competency of the appeals before the Appeal Board is involved in both the groups, though on different grounds.
The answer to the different objections is, however, the same.
733 In Abdul Gafoor vs State of Mysore, the effect of notifying a scheme was considered by this Court, and it was there stated that when a scheme has been notified under Chap.
IVA of the Motor Vehicles Act, and an application is made for the grant of a permit on a route notified under the scheme by a private operator, the Regional Transport Authority has no option but to refuse the permit to the private operator, if the State Transport Undertaking has either applied for a permit or has already been granted one.
In all the present cases, the State Transport Undertaking had already been granted a permit over route 'AB ', and if the private operators, that is to say, the appellants, were not entitled, in law, to the renewal of their permits for routes which embraced also route 'AB ', then the Regional Transport Authority could not but refuse to renew the permits.
It was observed in Abdul Gafoor 's case that the duty of the Regional Transport Authority was merely mechanical, and that it was required to take note of routes which had been notified and to adapt its orders so as to be in conformity with the notified scheme.
In view of the fact, therefore, that the scheme had been notified and route 'AB ' had already been granted to the Rajya Transport and/or the State Transport Undertaking, the Regional Transport Authority was incompetent to renew a permit over a route embracing route 'AB '.
The Regional Transport Authority not having done its duty under the law, the Appeal Board was entitled, when the record was before it, to revise the order of the Regional Transport Authority, even if the appeal was incompetent, in view of the vast powers of revision under section 64A.
That section, omitting the provisos, reads: "The State Transport Authority may, either on its own motion or on an application made to it, call for the record of any case in which an order has been made by a Regional 734 Transport Authority and in which no appeal lies, and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal, the State Transport Authority may pass such order in relation to the case as it deems fit." The High Court came to the conclusion that it should not interfere, in its discretionary powers under articles 226 and 227, with the order of the Appeal Board, because even if the appeal for some reason was incompetent, the Appeal Board had the record before it, and gave effect to the correct legal position arising from a notified scheme.
The same view was expressed also in Samarth Transport Co. vs Regional Transport Authority, Nagpur.
In our opinion, we should not interfere on this ground either.
In this connection, the difference between the two sets of cases arising from the fact whether the Rajya Transport, Bihar, had objected or not, completely disappears.
We are now concerned with the merits of the contention that where the scheme notifies, as a route, a part of a larger route operated by a private operator, the two routes must be regarded as different, and the private operator cannot be prevented from running his omnibuses on that portion of his route which is a different route, although notified.
Reliance is placed upon a decision of the Privy Council in Kelani Valley Motor Transit Co., Ltd., vs Colombo Ratnapura Omnibus Co., Ltd. There, the Privy Council was concerned with two Ordinances promulgated in Ceylon intituled the Motor Car Ordinance (No. 45 of 1938) and the Omnibus Service Licensing Ordinance (No. 47 of 1942).
By the first schedule, para I of the latter Ordinance, it was provided that if applications were made by two or more persons for road service licences in respect of the same route, preference should be given to (a) an 735 application from a company or partnership comprising the holders of all the licences for the time being in force under the Motor Car Ordinance No. 45 of 1938, authorising the use of omnibuses on such route, and (b) an application from a company or partnership comprising the holders of the majority of the licences referred to in (a) above.
Section 7, sub section 1, provides: "The issue of road service licences under this Ordinance shall be so regulated by the Commissioner as to secure that different persons are not authorised to provide regular omnibus services on the same section of any highway: Provided, however, that the Commissioner may, where he considers it necessary to do so having regard to the needs and convenience of the public, issue licences to two or more persons authorizing the provision of regular omnibus services involving the use of the same section of a highway, if, but only if (a) that section of the highway is common to the respective routes to be used for the purposes of the services to be provided under each of the licences, but does not constitute the whole or the major part of any such route." The real question in the case was whether the appellant there could take into account for the purpose of the first schedule, six omnibuses which had been licenced for the route, Panadura to Badulla via Colombo and the low level road.
Panadura is 16 miles along the coast to Colombo and thence from Colombo to Ratnapura is 50 miles and from Ratnapura to Badulla, a further 80 miles.
It was clear that the route from Panadura to Badulla was not the same or substantially the same route as the route, Colombo to Ratnapura; but if a licence for an omnibus on the route, Panadura to 736 Badulla, was one authorising the use of the omnibus on the route, Colombo to Ratnapura, then six omnibuses plied by the appellant could be taken into account to turn the scale between the parties.
Sir John Beaumont in expounding the meaning of the word "route" observed as follows: "If 'route ' has the same meaning as 'highway ' in the Ordinance this argument must prevail, since admittedly an omnibus running on the highway from Panadura to Badulla will pass over the whole of the highway between Colombo and Ratnapura, but in their Lordships ' opinion it impossible to say that 'route ' and 'highway ' in the two Ordinances are synonymous terms. .
A 'highway ' is the physical track along which an omnibus runs, whilst a 'route ' appears to their Lordships to be an abstract conception of a line of travel between one terminus and another, and to be something distinct from the highway traversed.
" This distinction between "route" and "road" is relied upon by the appellants to show that the notified route, which we have called 'AB ' was a different route from the routes for which renewal of permits was demanded, even though route 'AB ' might have been a portion of the "road" traversed by the omnibuses of the appellants plying on their "routes.
" The distinction made by the Privy Council is right; but it was made with reference to the words used in the Ordinances there under consideration.
The question is whether a similar distinction can be made in the context of the Motor Vehicles Act.
Mr. Viswanatha Sastri appearing for the appellants took us through sections 42 to 57 of the Motor Vehicles Act and drew our attention to those in which the word "route" has been used, contra distinguished from the word "area", and contended that everywhere the word "route" is used in the sense of a notional line between two 737 termini running a stated course, and is used in contradistinction to what may be conveyed by the word "area ".
In Kondala Rao vs Andhra Pradesh State Road Transport Corporation, this court, in dealing with the scheme of the Motor Vehicles Act, declined to make any such distinction between "route" and "area".
This Court, speaking through Subba Rao, J., observed at p. 93: "Under section 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route.
There is no inherent inconsistency between an 'area ' and a 'route '.
The proposed route is also an area limited to the route proposed.
The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of section 68C." In any event, under section 68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area, and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area, as the case may be, may be either complete or partial, and under section 68F(2) (c) (iii), the Regional Transport Authority may modify the terms of any existing permit so as to "curtail the area or route covered by the permit, in so far as such permit relates to the notified area or notified route ".
This means that even in those cases where the notified route and the route applied for run over a common sector, the curtailment by virtue of the notified scheme would be by excluding that portion of the route or, in other words, the " road " common to both.
The distinction between " route " as the notional line and " road " as the physical track disappears in the working of Chap.
IVA, because you cannot curtail the route without curtailing a portion of the road, 738 and the ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same.
The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap.
IVA, where the intention is to exclude private operators completely from running over certain sectors or routes vested in State Transport Undertakings.
In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme.
Those portions cannot be said to be different routes, but must be regarded as portions of the routes of the private operators, from which the private operators stood excluded under section 68F (2)(c)(iii) of the Act.
The decision under appeal was, therefore, correct in all the circumstances of the case.
This leaves over for consideration Civil Appeal No. 434 of 1961.
There, the question which arose was decided in the same way in which we have disposed of the other appeals on merits.
Ramaswami, C.J., and Kanhaiya Singh, J., referred to an earlier decision (M.J.C. No. 354 of 1960 decided on May 13, 1960) given by the Chief Justice and Chaudhuri, J., in which they had applied the Privy Council case, and made a distinction between a route which was longer than the notified route, though running for part of the way along the notified route and the notified route.
In the judgment from which Civil Appeal No. 434 of 1961 arises, the learned Chief Justice has declined to follow his earlier ruling which, he considers, was given perincuriam, because the provisions of section 68 F(2)(c)(iii) of the Motor Vehicles Act were not taken into account.
After considering the matter in the light of that section, the Divisional Bench has reached the same conclusion as we have, and along almost the same line of reasoning.
In view of what we have said in Civil Appeal No. 534 of 1961, Civil Appeal No. 434 of 1961 must also fail.
739 In the result, the appeals are dismissed, but in the circumstances of the case, we make no order about costs.
Appeals dismissed.

summary/full:
Under a scheme framed and notified under the Motor Vehicles Act a certain route was notified under section 68D of the Act and the Rajya Transport, Bihar was exclusively allowed to operate on that route.
The said notified route formed part of routes on which the appellants were operating, and in respect of which they had asked for renewal of their permits.
The Rajya Transport, Bihar filed objections against the renewal of the permits in some cases but in other case no objection was filed.
The question which arose for decision was whether the permits of the appellant could be renewed by the Regional Transport Authority.
The appellants contended that as the notified route formed part of a larger route operated by a private operator, the two routes must be regarded as different route, and the private operator could not be prevented from running his omnibuses on that portion of his route, which was a different route, although notified.
^ Held, that as decided by this Court in Abdul Gafoor 's case, the Regional Transport Authority had no option but to refuse the permit to the private operator, if the State Transport Undertaking had either applied for a permit or had already been granted one.
Abdul Gafoor vs State of Mysore, A.I.R. 1961 S.C. 1956, followed.
If the Regional Transport Authority did not do its duty under the law the Appeal Board was entitled, when the record was before it, to revise the order of the Regional Transport Authority under its revisional powers as provided in section 64A of the Act, even if the appeal was incompetent.
Samarth Transport Co. vs Regional Transport Authority Nagpur, ; , followed.
729 In the present case the appellants were not entitled to run over those portions of their routes which were notified as part of the scheme.
Those portions could not be said to be different routes, but must be regarded as portions of the routes of the private operators, from which the private operators stood excluded under section 68F (2) (c) (iii) of the Act.
Kelani Valley Motor Transit Co. vs Colombo Ratnapura Omnibus Co., and Kondala Rao vs Andhra Pradesh State Road Transport Corporation, A.I.R. 1961 S.C. 82, considered.


judgement:
Civil Appeal No. 281 of 1959.
Appeal by special leave from the judgment and order dated October 12, 1955, of the former Nagpur High Court in Misc.
Petition No. 288 of 1954.
H. R. Khanna and R. H. Dhebar, for the appellants.
section N. Kherdekar and A. G. Ratnaparkhi, for respondent No. 1 1961.
November 20.
The Judgment of the Court was delivered by SHAH, J.
Out of a total area of 2,375 acres 3 gunthas of Dhanora an Izara village in Taluka 712 Pusad in the State of Madhya Pradesh 2,283 acres and 28 gunthas is assessed land and the remaining 91 acres and 15 gunthas is unassessed.
One Surat Singh who was the proprietor of the village, by sale deed dated May 24, 1947, conveyed an undivided half share in the village to Yeshwant Madhao Mahajan hereinafter called Mahajan for Rs. 25,000/ and on the same day executed a kabulayat (lease deed) for five years in respect of the same land for cultivation at an annual rental of Rs. 3,000/ .
The Legislature of the Madhya Pradesh State enacted the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1 of 1951 hereinafter called the Act to provide for acquisition of the rights of proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith.
The Act was brought into operation on March 14, 1951.
The Compensation Officer, Yeotmal started an enquiry about assessment of compensation in respect of the village Dhanora which had vested by the operation of section 3 of the Act in the State Government.
Before the Compensation officer, Mahajan claimed to retain possession of a half share in all the fallow lands in the village which had been leased by him under the deed (kabulayat) dated May, 24, 1947, to Surat Singh on the plea that these lands were "home farm".
This claim was rejected by the Compensation Officer and the order of the Compensation Officer was confirmed in appeal by the Additional Settlement Commissioner.
Mahajan then applied to the High Court of Judicature at Nagpur under article 226 of the Constitution for a direction quashing the order of the Additional Settlement Commissioner and the Compensation Officer and for a declaration that the lands mentioned in Schedule A attached to the petition be declared home farm and for a writ of mandamus against the State of Madhya Pradesh to deliver possession of all the lands mentioned in that Schedule.
713 The High Court quashed the order of the Additional Settlement Commissioner in so far as it related to the undivided half share in Survey Nos. 1 to 91 except those in possession of the specified tenants and also those already recognised as home farm and directed the Compensation Officer to decide the claim made by Mahajan in the light of the law laid down in the judgment.
Against the order passed by the High Court, the Additional Settlement Commissioner and the State of Bombay, which had by virtue of the States Reorganization Act, 1956, been substituted for the State of Madhya Pradesh, have appealed to this Court with special leave.
The dispute in this appeal relates to a half share in those lands in the village which had remained fallow on the date of the notification under section 3 of the Act.
By virtue of the sale deed dated May 24, 1947, Mahajan was the proprietor of the undivided half share in the entire village and under the kabulayat he had granted to Surat Singh a lease for cultivation of the undivided half share purchased by him.
Undoubtedly the lands specified in Schedule A to the petition were on the crucial date lying fallow.
The question which falls to be determined is whether those lands can be regarded home far": if they be so regarded, by virtue of section 4(2) of the Act Mahajan will be entitled to retain possession of those lands.
Section 3 of the Act provides, in so far as it is material, that "on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances." Section 4(1) sets out the 714 consequence of the vesting.
By cl.
(a) of section 4(1), all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), cease and are vested in the State for the purposes of the State free from all encumbrances.
But sub section 2 provides that "Notwithstanding anything contained in subsection (1), the proprietor shall continue to retain the possession of his home stead, home farm land. . . " . 'Home farm land ' is defined, in so far as it is material, in section 2(g) as: "(1) x x x x x x (2) x x x x x x (3) in relation to Berar, all land included in holdings which is (i) under the personal cultivation of the superior holder including land allowed to lie fallow in accordance with the usual agricultural practice; (ii) held by a lessee from the superior holder; and (iii) held by a tenant from the superior holder other than a specified tenant.
" 'Land ' is defined as "including land covered with water.
" Section 7 authorises the Deputy Commissioner to take charge of all lands, other than occupied lands and home stead lands, and of all interests vesting in the State under section 3 on the date of the vesting, and, by section 8, duty is imposed on the State Government to pay every proprietor, who is divested of proprietary rights, compensation in accordance with the rules contained in Schedule I. Mahajan was undoubtedly at the date of vesting the superior holder of the half share in the fallow lands which were held by Surat Singh as lessee from him.
Prima facie the claim of Mahajan 715 was covered by cl.
(g) (3) (ii) of section 2 of the Act, and Mahajan was entitled to the benefit of the exception in section 4 (2).
But counsel for the State contends that in respect of an undivided interest in land, the superior holder is not entitled to the benefit of section 4(2), because it is not a "holding.
" Alternatively, he contends that the land which is, at the date of vesting, lying fallow otherwise than in accordance with the usual agricultural practice can never be regarded as home farm.
" In our view, there is no substance in either of these contentions.
Schedule A to the petition sets out the description of the various lands which Mahajan claimed should be treated as "home farm" land.
Each of these lands is assessed.
The expression 'holding ' is not defined in the Act, but by cl.
(d) of section 2 expressions not defined in the Act in relation to Berar but used or explained in the Berar Land Revenue Code, 1928, have the meaning assigned to those expressions in the latter Act.
The Berar Land Revenue Code defines 'holding ' as "(a) a parcel of land separately assessed to land revenue; and(b) in reference to land held by a tenant a parcel of land held from a landlord under one lease or set of conditions.
" Evidently, the survey numbers included in Schedule A to the petition were "holdings" within the meanings of the Berar Land Revenue Code and therefore within the meaning of that expression as used in the Act.
It is true that Mahajan was not entitled to the entire area of each of these holdings but by the definition in the Act all lands included in holdings in Berar, provided they fulfil the conditions in cl.
(i), (ii) or (iii) of sub cl.
(3), are "home farm" lands.
In other words a part of the holding or an undivided interest in the holding may also be "home farm" land if it otherwise fulfils the requirements of cl.(i) (ii) or (iii) of sub cl.(3).
That a half share in the village which is included in the Schedule to the petition was granted 716 to Surat Singh on lease for cultivation cannot be gain said in view of the express covenants of the kabulayat.
Certain lands in the village, it is true, were lying fallow wholly or partially at the date of the vesting, but the lands having been granted in lease for cultivation, in our judgment, they are by virtue of section 4(2) to be retained in the possession of the proprietor, provision of cl.(1) of section 4 notwithstanding.
By sub section
(2) of section 4 all "home farm" lands are to remain in possession of the proprietor: there is no express exclusion of lands lying fallow from the benefit of section 4 (2) and none such can be implied either from the scheme of the Act or the context in which section 4 (2) occurs.
If Mahajan had remained in occupation as proprietor and had allowed the lands to remain fallow they may have vested in the State and Mahajan may not have been entitled to claim the benefit of section 4 (2) unless his case fell under cls.
(i) and (iii) of section 2 (g)(3), but the grant of a lease for cultivation evidences an intention on the part of Mahajan that the land be converted to agricultural purposes and default on the part of the lessee to cultivate those lands will not, deprive the lessor proprietor of the benefit granted to him by the statute.
In our view, the High Court was right in holding that the words of cl.
(ii) of section 2(g) (3) were explicit and a survey number which was lying fallow but was held by a lessee from the superior holder fell within the definition of "home farm.
" The appeal, therefore, fails and is dismissed with costs.
Appeal dismissed.

summary/full:
In 1947 S conveyed by a sale deed to M an undivided half share of Land in his village.
On the same day S executed a Kabulayat for 5 years in respect of the same land for cultivation.
In 1951 the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951, came into force and the Compensation Officer started enquiry about assessment of compensation.
M claimed to retain possession of the half share in all the fallow lands in the village which had been leased by him for cultivation to S on the plea that these lands were 'home farm '.
The claim 711 was rejected by the Compensation Officer and confirmed by the Additional Settlement Commissioner.
The High Court of Nagpur quashed the order.
In appeal to the Supreme the Additional Settlement Commissioner contended that in respect of an undivided interest in the land, the superior holder is not entitled to the benefit of section 4(2) of the Act because it is not a 'holding ', alternatively, that the land which was, at the date of vesting, lying fallow otherwise than in accordance with the usual agricultural practice could never be regarded as 'home farm '.
^ Held, that a part of a holding or an undivided interest in a " holding" in Berar may also be 'home farm ' land if it otherwise fulfils the requirement of cl.
(i), (ii) or (iii) of sub cl.
(3) of section 2(g) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951.
The land having been granted in lease for cultivation it is by virtue of section 4(2) of the Act to be retained in the possession of the proprietor.
Grant of a lease for cultivation evidences an intention on the part of the proprietor that the land is to be converted to agricultural purposes, and default on the part of the lessee to cultivate the land will not deprive the lessor proprietor of the benefit granted to him by the statute.


judgement:
Civil Appeals No. 180 of 1961.
Appeal by special leave from the judgment and order dated January 30, 1961, of the Mysore High Court, in Writ Petition No. 1326 of 1960.
section T. Desai, B. R. L. Iyengar and K. P. Bhat, for the Appellant.
A. V. Viswanatha Sastri, R. Gopalakrishnan and T. M. Sen, for the respondents.
December 1.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
The appellants, C. P. C. Motor Service, Mysore, question a scheme approved and applied by the State of Mysore by its Notification No. HD.
200/TMP/60 in Gazette (Extraordinary) on November 10, 1960.
They had unsuccessfully moved the High Court under article 226 of Constitution, and the present appeal is filed with the special leave of this Court.
The appellants were running stage carriage omnibuses on 18 routes, and 14 such routes are inter District.
On September 21, 1960, the second respondent, who is the General Manager of the State Transport Undertaking, published a tentative scheme for taking over stage carriage services over 64 routes, which were shown in a schedule to the Notification, to the complete exclusion of private operators.
The action was taken under Chap.
IV A of the , inserted by section 62 of Act 100 of 1956.
Objections were duly filed by the appellants, which were heard by the Chief Minister, who was the authority to hear the objections under the Rules, and they were disposed of by his order dated 719 November 7, 1960.
The scheme was approved with some modifications, and it was published along with the order in the Notification, to which we have already referred.
The appellants, in their petition under article 226 of the Constitution, raised many points before the High Court.
The High Court, by its judgment under appeal dated January 30, 1961, dismissed the petition.
Some of the grounds were considered in that judgment; but others had already been disposed of in other petitions, in which a common judgment was delivered by the High Court also on the same day in Writ Petition No. 75 of 1960.
That order concerned another scheme for the Hassan District of Mysore State.
In the appeal before us, the scheme is challenged on four grounds.
Shortly stated, they are, that the modified scheme is vague, indefinite and contradictory and does not carry out the orders of the Chief Minister; that there has been non compliance with the mandatory requirements of sections 68C and 68E of the ; that the scheme is destructive of co ordination, which is the gist of efficient motor transport services; and finally, that the routes on which the appellants operated, were, in any event, not affected by the monopoly on certain routes created in favour of the State Transport Undertaking.
These contentions will be dealt with in detail by us in this judgment, and need not be stated at greater length at this stage.
Private operators in the Mysore State including the appellants, plied their omnibuses on three different kinds of routes.
They were inter District, inter District and inter State.
By the scheme, the State Transport Undertaking had taken over 64 routes, but the exclusion of the private operators was only in the Mysore District.
In the approved scheme, this is stated in the following words: 720 "(d) Whether the services are 1.
The State Transport to be operated by the Undertaking will ope State Transport Under rate services to the taking to the exclusion, complete exclusion complete or partial, of of other persons(i) other persons or other on all the notified wise.
inter district routes except in regard to the portions of inter district routes lying outside the limits of Mysore District, and also (ii) over the en tire length of each of the inter district route lying within the limits of Mysore District.
In so far as the noti fied routes are con cerned the State Transport Undertak ing will operate with out prejudice to rights of the existing valid permit holders for operation of Stage Carriage Services on the Inter State routes only".
In describing the routes in the appendix to the scheme, these routes were shown with all the stops between the termini, together with the length of the routes in miles, the maximum number of vehicles to be operated by the State Transport Undertaking and by private operators, and the maximum number of daily services (return trips) to be provided in relation to each route by the State Transport Undertaking and by the private operators.
The columns dealing with private operators in respect of the maximum number of vehicles as well as the maximum number of the daily services were invariably shown as "Nil".
Section 68C of the permits the taking over 721 of any route or area either wholly or partly by the State Undertaking, and the action of the State Government has not been challenged as either ultra vires or invalid.
This is due perhaps to the fact that in a number of cases recently decided by this Court, schemes of this type have been held to be valid, and the provisions of Chap.
IV A, in view of the amendments effected by the Constitution (First Amendment) Act, 1951, in article 19(6), have been held intra vires the State Legislatures.
Those cases are also referred to by the High Court in the judgment dealing with the Hassan District scheme.
The first question that has been raised is that the scheme is vague, indefinite and contradictory.
The vagueness, it is said, arises from the fact that though under section 68C certain particulars have to be mentioned, they have not been so mentioned in the scheme.
This point is illustrated by referring to the columns in which the routes of private operators have not been shown; but it is stated by the respondents that on the routes mentioned in the scheme, the private operators have no omnibuses, nor any daily services at all.
This, in our opinion, is the direct result of taking over of certain routes, because if those routes are taken away, then the private operators would not be running their omnibuses on those routes, and the appropriate entry would be as shown there, "Nil".
The rest of the particulars have been given in the scheme itself, including the kind of vehicles which would be run, and their seating capacity, equipment, etc.
No doubt, the fares and the timings have been left out, and the State Transport Authority has been given the power to fix them.
But that is a matter for the determination of the transport authorities under the .
It is too much to expect fares and timings to be indicated in the scheme, because each route requires elaborate enquiry for fixing the fares as well as the timings of service.
The scheme is 722 not required, under the law, to deal with these matters, and we are satisfied that the omission of these details from the scheme does not militate against it.
Similarly, the argument that the scheme is destructive of co ordination is not valid.
No doubt, the private operators cannot run in the Mysore District, but can ply their omnibuses from the border of the Mysore District on routes, which were saved to them, and there is likelihood of transhipment from State owned buses to private omnibuses at the border, where the routes operated by the State Transport Undertaking and the private operators bifurcate.
The transhipment, by itself, would not connote a lack of co ordination.
Under section 68C, the State Transport Undertaking may take over whole routes or whole areas or part of the routes or part of the areas and if the scheme operates partially, some transhipment would obviously be necessary, but co ordination would still exist, because where the State omnibuses come to a halt, the private omnibuses would take the passengers set down.
In our opinion, these grounds have no validity, in view of the partial nationalisation of the routes involved in the State.
Really, the main attack against the scheme is that though the Chief Minister had upheld the objection of the appellants in an earlier portion of his order, the direction which he contemplated giving was not effectuated, leading to a contradiction between the order and the approved scheme.
The Chief Minister, in dealing with the objection of the private operators, had observed in his order as follows: "The Private Operators contended that exclusive operation by the Mysore Government Road Transport Department on the proposed notified routes might seriously affect them on certain Inter District routes as well as Inter State routes.
The State Transport Undertaking 723 it was argued, had not proposed nationalisation of certain Inter District and Inter State routes lying outside the limits of Mysore District, though a few of the notified routes traverse portions of Inter State and Inter District routes.
It was contended by the Objectors that if the Mysore Government Road Transport Department was to operate certain notified routes to the complete exclusion of other operators, it would adversely affect the passenger transport system on certain portions of Inter State and Inter District routes which are notified.
There is much force in this contention and accordingly, the Scheme is directed to be suitably modified.
" It was argued that the point which was made before the Chief Minister was that between the routes which were taken over and some of the inter District and inter State routes which were left to the private operators, there was an overlap in the Mysore District, and that those routes which were not taken over including the portion of the route lying within the Mysore District should not be held to be affected by the scheme.
It was argued that the Chief Minister in his order quoted above, accepted the contention, and gave directions for the suitable modification of the scheme, but in carrying out the modifications, the directions, quoted above, were not included, and they excluded the private operators from that portion of the route lying within the District of Mysore, even though that route was different from the route, which had been taken over.
In our opinion, the error lies in not properly reading the order of the Chief Minister.
In the sentence, "It was contended by the Objectors that if the Mysore Government Road Transport Department was to operate certain notified routes to the complete exclusion of other operators, it would adversely 724 affect the passenger transport system on certain portions of inter State and inter District routes which are not notified," the words "which are not notified" qualify not the word "route" but the word "portions".
The direction which was given, effectuates the later reading, which was really meant and not the former, which is urged; because the qualifying phrase "which are not notified" has been unhappily put later.
It is no doubt true that the other reading is also open, and is more in accord with a grammatical construction.
Where two constructions are open, it is proper to read the order harmoniously with the directions, because it could not have been intended that the Chief Minister would express his opinion in one way, and include a contradictory direction in another way.
Indeed, the intention was to take over routes or parts of the routes lying in Mysore District and to notify them as within the exclusive operation of the State Transport Undertaking.
The exclusive operation of routes within the District meant that no other omnibus belonging to a private operator could run on that sector.
The direction, therefore, clearly said that the route left to the private operators would be open to them beyond the borders of the District, but there were excluded from that portion of the route which lay within the District.
In Nilkanth Prasad vs State of Bihar, in which we have delivered judgment today, we have explained what is meant by a "route" and 'a portion of a route ', and we need not cover the same ground.
In our opinion, there is no contradiction between the order of the Chief Minister and the directions included by him in the concluding part of his order.
Indeed, the directions carry out the order, if the order is to be read in the manner indicated by us.
It was next contended that the inter District routes, which the appellants were operating, could not be said to be affected by the scheme at 725 all, because "route" means a notional line running between two termini and following a distinct course.
This meaning was given to the word "route" by the Privy Council in a case from Ceylon reported in Kelani Valley Motor Transit Co., Ltd. vs Colombo Ratnapura Omnibus Co., Ltd. It is said that the ruling applies in the present case where what is notified as for exclusive running by the State Transport Undertaking is not a definite portion of a route of a private operator but is a different route altogether.
This may be illustrated by algebraic notations.
If the route of the private operator was ABPQR, AB lying within the District of Mysore and PQR outside it, it is submitted that a route ABCDE may overlap the other route up to the point B but is not the same route, and, therefore, cannot be said to be notified.
What is meant by a route in the Act has been elaborately discussed by us in the other judgment delivered to day.
The only difference between this case and the other cases is that, whereas in the latter, the notified route was only AB, here the notified route is ABCDE.
The notification of the Government must be read in two parts.
The first is that part of the notification referring to the whole of the route which is taken over, and the second part is with respect to the portion of the route lying within the District of Mysore.
The portion lying within the District of Mysore has been notified separately as within the exclusive operation of the State Transport Undertaking.
The natural result of it is that private operators would not be able to ply their omnibuses on that sector, and by "route" is meant, as already stated, not only the notional line but also the actual road over which the omnibuses run.
We have shown in the other appeals that the scheme of the Ceylon ordinance was different.
There, the 726 word "route" was contracted with the word "highway".
In the , the words used are "route or area", and it has been held by this Court that these words mean the same thing: Kondala Rao vs Andhra Pradesh State Road Transport Corporation.
The scheme of the Act in section 68F(2)(c)(iii) also shows that the Regional Transport Authority, in giving effect to the approved scheme, may "curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route".
This makes the route or area stand for the road on which the omnibuses run or portions thereof, and in view of the fact that the scheme reserved all the routes within the Mysore District to the State Transport Undertaking even those routes which were inter District open to the private operators would stand pro tanto out down to only that portion, which lies outside the Mysore District.
The result, therefore, is that no distinction can be made between the notification of a portion of the route of the private operators lying within the Mysore District and the notification of a different route, in which the portion within the Mysore District is also included.
What we have said in the other case applied equally here.
It was suggested during the argument that there were certain routes which did not cover any portion of the notified route but met that route at certain point or points.
Reverting to the algebraic notations given above, it was said that route APBQR would not cover any portion of the notified route ABCDE, and must at least, therefore, be outside the scheme.
No such route, however, was pointed out to us, and we need not express any opinion on this part of the case or as to what would happen, if such a route existed.
727 Lastly, it was contended that the minimum number of trips and the minimum number of vehicles to be put on the road with respect to any route has not been indicated, and that this is not a proper scheme, because a scheme must show how comparatively more efficient service is to be provided by the State Transport Undertaking.
The earlier Rules required a statement as to the minimum and maximum number of vehicles to be put on a route, as also the minimum and maximum trips.
It was, however, held by this court that a departure from the minimum number would mean the alteration of the scheme, necessitating the observance of all the formalities for framing a scheme.
In view of this, the Rules were amended, obviating the necessity of indicating the minimum number.
The Rule, as it now stands, has been complied with, and there being no challenge to the Rule as such, one cannot say that the scheme is defective on this account.
The result is that this appeal must fail, and is dismissed; but in the circumstances of the case, we make no order about costs.
Appeal dismissed.

summary/full:
Under a scheme for taking over certain stage carriage services to the complete exclusion of private operators, which was approved and notified by the State of Mysore under the provisions of Ch.
IV A of the , it was provided, inter alia: "The State Transport Undertaking will operate services to the complete exclusion of other persons (i) on all the notified inter district routes except in regard to the portions of inter district routes Lying outside the limits of Mysore District, and also (ii) over the entire length of each of the inter district routes Lying within the limits of Mysore District.
" The appellants who were running stage carriage omnibuses of certain routes, some of which were inter district and inter State, challenged the validity of the scheme on the ground, inter alia, that between the routes which were taken over and some of the inter district and inter State routes which were left to the private operators, there was an overlap in the Mysore District, and that those routes which were not taken over including the portion of the route Lying within the Mysore District should not be affected by the scheme, because "route" meant a notional line running between two termini and following a distinct course. ^ Held, that the scheme of the , is that the word "route" meant not only the notional line but also the actual road over which the omnibuses run.
Under the Act the route or area stand for the road on which the omnibuses run or portions thereof.
Kondala Rao vs Andhra Pradesh State Road Transport Corporation, A. I. R. , relied on.
Kelani Valley Motor Transit Co., Ltd. vs Colombo Ratnapura Omnibus Co., Ltd. [1946] A. C. 338, explained and distinguished.
In the present case, in view of the fact that the scheme reserved all the routes within the Mysore District to the State Transport Undertaking, the private operators would not be able to ply their omnibuses on that sector and even those 718 routes which were inter district open to them would stand pro tanto cut down to only that portion which lay outside the Mysore District.
Nilkanth Prasad vs The State of Bihar, [1962] Supp. 1 section C. R. 717, followed.


judgement:
s Nos. 117 and 137 of 1961.
Petition under Art 32 of the Constitution of India for enforcement of Fundamental Rights.
L. K. Jha and R. Patnaik, for the petitioner (in Petn.
No 117 of 1961).
C. B. Agarwala and R. Patnaik, for the petitioner (in Petn.
No. 137 of 1961).
A. V. Viswanatha Sastri, B. R. L. Iyengar and T. M. Sen, for the respondents.
683 1961.
November 28.
The Judgment of the Court was delivered by WANCHOO, J.
These two petitions challenge the validity of a scheme of road transport service approved by the Government of Orissa under section 68D (2) of the , No. IV of 1939 (hereinafter called the Act).
A large number of grounds have been raised in the petitions but we are now concerned with only six points urged on behalf of the petitioners and we shall deal with only those points.
No arguments were addressed on the other points raised in the petitions and it is therefore not necessary to set them out.
The six points which have been raised before us are these: 1.
No hearing was given to the petitioner in petition No. 117 as required by section 68D (2) and the Rules framed under Chap.
IV A. 2.
The minister who heard the objections under section 68D (2) was biased and therefore the approval given to the scheme is invalid.
The order of the Regional Transport Authority dated December 17, 1960, rendering the permits of the petitioners ineffective from April 1, 1961 is illegal inasmuch as section 68 F and r. 10 framed under Chap.
IV A were violated.
The State Transport Undertaking did not apply for permits six weeks before April 1, 1961, as required by section 57 (2) of the Act and therefore the issue of permits to the State Transport Undertaking was bad.
The final scheme did not mention the date from which it was to come into operation as required by r. 3 (vi) of the Orissa Rules and was therefore bad.
The Transport Controller who published the scheme had no authority to do so.
684 We propose to take these points one by one.
Re. 1.
The contention of the petitioner is that the minister heard the objections on September 21, 1960, and passed his orders approving the scheme on September 22, 1960.
The notice however issued to the petitioner of the date of hearing was received by him on September 23, 1960, and as such as there was no opportunity for the petitioner to get a hearing before the minister and consequently the scheme which was approved in violation of section 68D (2) and r. 8 was invalid.
It appears that the draft scheme was published on July 29, 1960.
Objections were invited from the operators and members of the public thereto.
The petitioner filed his objection on August 24, 1960.
The date which was originally fixed for hearing of objections was September 16, 1960, and it is not disputed that the notice of that date was given to all objectors as required by section 68D(2) and the Rules.
The petitioner, however, did not appear on September 16, 1960, which was the first date of hearing.
Many other objectors appeared on that date and prayed for time.
Consequently the hearing was adjourned to September 21.
As however the petitioner was absent a fresh notice was sent to him as a matter of abundant caution.
That notice could not be delivered to him before September 21, 1960, as he was absent from his address and he was actually served on September 23, 1960 The petitioner 's complaint therefore is that as he was not served with notice about the hearing on September 21, 1960 there was no compliance with section 68D (2) and the Rules framed in that connection under Chap.
On these facts, we are of opinion that there is no force in the contention raised on behalf of the petitioner.
What r. 8 of the Orissa Rules requires is that ten days ' clear notice has to be given of the time, place and date of hearing to all 685 objectors.
This was undoubtedly done, for the date originally fixed for hearing was September 16, 1960.
Thereafter the hearing was postponed to September 21 at the instance of the objectors.
It was in our opinion not necessary to give a fresh notice giving ten clear days as required by r. 8, for this adjourned date.
Rule 8 only applies to the first date to be fixed for hearing.
Thereafter if the hearing is adjourned, it is in our opinion unnecessary to give a further notice at all for the adjourned date.
It was the duty of the petitioner after he had received notice of the first date to appear on that date.
If he did not appear and the hearing had to be adjourned on the request of the objectors, or for any other reason, to another date, no further notice was necessary of the adjourned date.
It is true that notice was given to the petitioner of the adjourned date; but that was in our opinion as a measure of abundant caution.
The rule does not however require that a fresh notice must be given of the adjourned date of hearing also.
In the circumstances we reject this contention.
Re. 2.
Reliance is placed on two circumstances to show that the Minister was biased and therefore the hearing given by him was no hearing in law.
In the first place, it is said that in answer to a question in the Orissa Legislative Assembly as to when the Government was taking over the privately operated motor routes, the Transport Minister (who eventually heard the objections) replied that the Government had decided to take over all the routes from April 1, 1961, eliminating all private operators.
It is urged that this shows that the Transport Minister was biased and was determined whatever happened to push through the scheme so that it may become operative from April 1, 1961.
We are of opinion that there is no force in this contention 686 of bias based on this reply of the Minister to a question put in the Legislative Assembly.
The Government was asked when it was intending to take over the privately operated motor routes and its reply was really a matter of policy, namely that it was the policy of the Government to take over all the routes eliminating all private operators from April 1, 1961.
This did not mean that even if, for example, the scheme was not ready or if the scheme put forth was found by the Government to be open to objection, the Government would still force through the taking over of the privately operated routes from April 1, 1961 ; This answer was merely an indication of the Government 's policy, namely, that the Government was intending to take over all private operated routes from April 1, 1961 ; but whether in actual fact all the routes would be taken over on that date would depend upon so many circumstances including finance.
It cannot be said that this announcement of the Government 's policy in answer to a question put in the legislative assembly meant that the Government was determined whatever happened to eliminate all privately operated routes by April 1, 1961.
We are therefore of opinion that the Minister cannot be said to be personally biased because this policy statement was made by him in answer to a question put in the legislative assembly.
Another reason that is urged to support the personal bias of the Minister is that the Minister is said to have stated to certain persons that as the privately operated routes in the district of Ganjam which was his constituency had been nationalised he was determined to annihilate all the private bus operators in the district of Cuttack also.
This allegation has been denied on behalf of the State.
It is however urged that no affidavit has been filed by the Minister who alone was likely to have knowledge on this point.
It appears however that the petitioners also have no personal knowledge of 687 any such determination on the part of the Minister.
Thy based their allegation on an alleged talk between the Minister and two citizens of Cuttack, namely, a municipal councillor and an advocate.
No affidavit however of the two persons concerned has been filed to support this allegation.
In the circumstances we are of opinion that it was not necessary for the Minister to file an affidavit for the allegation on behalf of the petitioners was also based on heresay and it has been contradicted by similar evidence on behalf of the State.
It would have been a different matter if the two persons concerned had made affidavits from personal knowledge.
There is therefore no force in this contention and we are of opinion that it cannot be said on the facts of this case that the Minister was biased.
Re. 3 and 4.
We propose to take these points together.
We are of opinion that the petitioners cannot be allowed to raise these points for the first time in arguments before us, for there is no mention of these points in their petitions.
It appears that in an affidavit filed ill connection with stay, something was said on these two points; but the stay matter was never pursued and never came up before this Court for hearing.
In the circumstances there was no reply from the State Government to these allegations.
We are of opinion that the petitioners cannot be allowed to raise these points now for the first time in arguments when they did not raise them in their petitions and consequently reject them.
Re. 5.
It is contended that under r. 3 (vi) of the Orissa Rules, the draft scheme or the approved scheme has to be published in the official gazette under sections 68D and 68E and has to contain certain particulars including the actual date of operating 688 the route.
Now what happened in this case is that the draft scheme mentioned the date of operation as April 1, 1961.
This was in accordance with r. 3 (vi).
When the final scheme was published, this date was not mentioned in it.
We will assume that r. 3 (vi) requires that when the final scheme was published, the date should have been mentioned.
It seems to us that the rule so read has been substantially complied with, for the notification publishing the final scheme refers to the draft scheme and says that the draft scheme is approved and there is no mention of any modification.
In the circumstances it could in our opinion be not unreasonable to read the date April 1, 1961, incorporated in the final scheme by reference to the draft scheme.
It would have been a different matter if the draft scheme also did not contain the date of operation.
We are therefore of opinion that there has been substantial compliance with r. 3 (vi), and the final scheme cannot be said to be bad for non compliance with the rule.
We therefore reject this contention.
Re. 6.
It is urged in this connection that the Transport Controller had no authority to publish the draft scheme.
It is also urged that the Transport Controller is not the State Transport Undertaking and the notification under section 68C does not show that the State Transport Undertaking was of opinion that it was necessary to take over certain transport services for the purpose mentioned in that section.
The argument as raised before us is really two fold.
In the first place it is urged that the Transport Controller had no authority to publish the scheme.
There is however no force in this contention, for section 68C requires that after the State Transport Undertaking has formed the opinion required thereunder and prepared a scheme it shall cause the scheme to be published.
The Transport Controller 689 is the chief officer of the State Transport Undertaking and we see nothing irregular if he publishes the scheme prepared under section 68C.
The section lays down that after the scheme has been prepared in the manner provided thereunder, the State Transport Undertaking shall cause it to be published, which means that some officer of the Undertaking will have it published in the gazette.
In the present case, the chief officer of the Undertaking has got it published and this in our opinion is in sufficient compliance with section 68C.
The other part of the argument is that the notification under section 68C does not show that it was the State Transport Undertaking which was satisfied that it was necessary to take action under that section, for it says that "I, Colonel section K. Ray, Indian Army (Retd.), Transport Controller, Orissa, in charge of State Transport Undertaking, Orissa, am of opinion that for the purpose of providing an efficient, adequate and economical and properly coordinated road transport service it is necessary . . . ." The argument is that it was not the State Transport Undertaking which was satisfied but Col. section K. Ray, Transport Controller, who formed the necessary opinion under section 68C.
We find that this point was also not taken in the petitions.
All that was said in the petitions was that the Transport Controller was only in charge of the transport services in the State and there was no State Transport Undertaking in the State of Orissa within the meaning cl.
(b) of section 68A of the Act.
This case has been abandoned; but it is now contended is that even though there may be a State Transport Undertaking in Orissa that Undertaking was not satisfied that it was necessary to take action in the manner provided in section 68C.
This in our opinion is a question of fact and should have been specifically pleaded in the petitions so that the State may have been able to make a reply.
In the absence therefore of any averment on this question 690 of fact, we are not prepared to allow the petitioners to raise this point in arguments before us.
In the circumstances we reject this contention also.
The petitions therefore fail and are hereby dismissed with costs one set of hearing costs.
Petitions dismissed.

summary/full:
The validity of a scheme of road transport service approved by the Government of Orissa under section 68D (2) of the 682 , was challenged by the petitioners on the grounds (1) that a proper notice was not given for the hearing of objections to the scheme, (2) that the Minister for Transport who approved of the scheme was biased, (3) that the final scheme did not mention the date on which it was to come into operation, and (4) that the Transport Controller who published the scheme had no authority to do so.
^ Held, that; (1) r. 8 of the Rules framed by the Orissa State Government under Ch.
IVA of the , applied only to the first date to be fixed for hearing, and that if for any reason the hearing was adjourned, it was not necessary to give a fresh notice under the rule for the adjourned date of hearing; (2) the statement made by the minister in answer to a question put in the legislative assembly that the Government had decided to take over all the routes from April 1, 1961, eliminating all private operators, was merely an indication of the Government 's policy and that the minister could not be said to be personally biased; (3) the approved scheme was not invalid for the reason that the actual date of operating the route was not mentioned in the final scheme, as required under r. 3 (vi) of the Rules, inasmuch as the notification publishing the final scheme referred to the draft scheme which contained that date and said that the draft scheme was approved, and, consequently, the rule must be considered to have been substantially complied with; and (4) the Transport Controller, being the Chief Officer of the State Transport Undertaking, had the authority to publish the scheme under section 68C of the Act since the section provided that the State Transport Undertaking "shall cause it to be published" which meant that some officer of the Undertaking would have it published in the Gazette.