2006(3) ALL MR 97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
B.P. DHARMADHIKARI, J.
Natwar Transport Co. Pvt. Ltd.Vs.State Transport Appellate Tribunal & Ors.
Writ Petition No.1175 of 1992
19th September, 2005
Petitioner Counsel: Shri. C. G. MADKHOLKAR
Respondent Counsel: Shri. S. G. LONEY,Shri. V. G. WANKHEDE
Maharashtra State Road Transport Corporation Act, Ss.20, 57(4) - Application for grant of stage carriage permit to MSRTC on three interstate routes - Rejection - Validity - Plea of non-compliance of provision U/s.20 as to the sanction of scheme extending routes to other States - Ground that petitioner could not make proper objection due to non-availability of copy of Gazette - Found untenable since grievance of petitioner about non-availability of Govt. Gazette could not have any legal bearing - Further compliance of Section 20 requiring interstate permission having been proved - Order of M. V. Tribunal upholding rejection of permit to petitioner and grant of same to MSRTC was proper. AIR 1997 SC 412, AIR 1968 SC 1095 Rel. on. (Paras 7 to 10)
Kunjilal Jaiswal Vs. B. G. Deo, 1978 Mh.L.J. 462 [Para 4,5,7,8]
Gajraj Singh Vs. State Transport Appellate Authority, AIR 1997 SC 412 [Para 4,10]
A. Vishwanath Rao Vs. State of Mysore, AIR 1968 SC 1095 [Para 5,9]
Union of India Vs. Ganesh Das Bhojraj, AIR 2000 SC 1102 : 2000(9) SCC 461 [Para 7]
M/s. Pankaj Jain Agencies Vs. Union of India, 1994(5) SCC 198 [Para 7]
Collector of Central Excise Vs. New Tobacco Co., 1998(8) SCC 2507
I.T.C. Limited Vs. Collector of Central Excise Bombay, 1996(5) SCC 538 [Para 7]
Apar (P) Ltd. Vs. Union of India, 1985(22) ELT 644 [Para 7]
Kashab Das Vs. M. C. Das, AIR 1970 Assam 75 [Para 8]
JUDGMENT :- By this writ petition under Article 226 of Constitution of India, the petitioner a private transport operator challenges the order dated 20-3-1992 delivered by State Transport Appellate Tribunal, Maharashtra State at Bombay in M.V. Appeal No.323 of 1991 rejecting his appeal challenging the resolution dated 10-9-1991 having No.34/1991 inter alia rejecting his application for grant of State Carriage permits on 3 interstate routes and at the same time granting permission/permits to present respondent No.2 - Maharashtra State Road Transport Corporation (hereinafter referred to as 'MSRTC'). Though writ petition has been admitted on 22-6-1992, this court has refused to grant interim stay.
2. On 8-7-1988, the petitioner applied for State carriage permits for 3 interstate routes namely Nagpur-Bhopal, Nagpur-Chhindwara and Nagpur-Pandhurna. Nagpur is in State of Maharashtra while the other three destinations are in Madhya Pradesh. On 22-7-1988, respondent No.3 MSRTC also moved applications for permission to operate on these three routes. Both these applications were considered by State Transport Authority (respondent No.2 herein) and on 22-2-1989 it rejected the application of petitioner while permitted MSRTC to operate on those routes. This order was challenged by petitioner in Appeal No.44/1989 which came to be allowed on 8-5-1991 and Appellate Tribunal confirmed certain findings of lower authority but remanded matter back to it for finding out compliance of Section 20 of Road Transport Corporation Act. The respondent No.2 again heard parties in this background and recorded a finding that there was compliance with provisions of said Section 20. This order formed subject matter of Appeal No.323/1991 before respondent No.1. The Appellate Tribunal has considered the issue and recorded a finding that there was compliance with Section 20 of RTC Act on 9-3-1989 and pending consideration of its application by respondent No.2 authority, respondent No.3 made proper compliance with Section 20 of RTC Act. It therefore held that it was not necessary for it to go into other contentions of present petitioner relating to better facilities and lower fare.
4. The learned counsel for petitioner points out that in view of orders of this court, it was necessary for respondent Nos.1 and 2 to find out whether there is compliance with provisions of Section 20 of RTC Act and to consider objection raised by petitioner under Section 57 of Motor Vehicle Act, 1939. He invites attention to Writ Petition No.1673 of 1991 filed by petitioner earlier before this court against present respondents questioning the order dated 8th May, 1991 passed by respondent No.1 in Appeal No.42 of 1989. It appears that on 22-2-1989 respondent No.2 - Authority in its 158th meeting granted permission to MSRTC to operate on abovementioned three routes and that permission was set aside by Appellate Authority namely present respondent No.1 on 8-5-1991 and matter was remanded back to respondent No.2 to consider the question as to whether there was compliance of Section 20 of RTC Act at the time when the applications were made by petitioner and MSRTC or at the time when decision was taken by it. It was also directed that respondent No.2 should also consider if there was no compliance with Section 20 at the time when MSRTC applied, whether subsequent compliance of section 20 would emure for the benefit of MSRTC. In Writ Petition No.1673 of 1991, the present petitioner contended that it was duty of respondent No.1 to direct respondent No.2 to consider the claims of both rival operators for making temporary arrangement and for grant of temporary permit. It appears that on 24-10-1991 said petition was allowed to be withdrawn with liberty to petitioner to agitate the points raised in the petition before Appellate Authority. It appears to be on account of fact that in the meanwhile on 10-9-1991 respondent No.2 had already passed orders on merits and rejected the application of petitioner and permitted respondent No.3 MSRTC to operate on these three routes. In view of these orders, the High Court permitted petitioner to raise that grievance in M.V. Appeal No.323 of 1991. Advocate Madkholkar states that in spite of remand by respondent No.1 and in spite of liberty granted by High Court, the grievance of the petitioner about non-compliance with provisions of Section 20 of RTC Act has not been looked into on sole ground that objection of petitioner was not received within time limit prescribed in Section 57 of Motor Vehicle Act, 1939. He invites attention to discussion in this respect as contained in paragraph 14 of the minutes dated 20-1-1989 of 158th Meeting of respondent No.2 authority and points out that objection raised by petitioner was not looked into because it was filed after period prescribed in section 57(4) of the Motor Vehicle Act, 1939. He also invites attention to paragraph 7 of impugned order of respondent No.1 to show that respondent No.1 also agreed that when respondent No.2 decided the applications for the first time on 22-2-1989, there was no complete compliance of Section 20 of RTC Act. It is his contention that such compliance was required when MSRTC moved application and here, according to him, respondent No.3 MSRTC extended its service on new routes without complete compliance. The learned counsel has also taken the court through pleadings in Writ Petition No.1673 of 1991 to demonstrate that there was no compliance and the relevant Official Gazette was not available for long time and as such objection to the application of MSRTC could not be taken within time stipulated in section 57(4) of Motor Vehicle Act, 1939. He has relied upon the judgment of Division Bench of this court reported at 1978 Mh.L.J. 462, (Kunjilal Jaiswal Vs. B. G. Deo) to demonstrate that compliance with section 20 is mandatory. He further pointed out that the new Motor Vehicle Act, 1988, has come into force on 1-7-1989 and new Act does not contain any provision like section 57(4) of 1939 Act. He has further pointed out the judgment of Hon'ble Apex Court reported at AIR 1997 SC 412 between (Gajraj Singh Vs. State Transport Appellate Authority) to show that in view of repeal of 1939 Act, the time limit prescribed their under in section 57(4) was not available and Appellate Authority ought to have considered the objection of petitioner. He further states that reference to judgment of Division Bench of this court by Appellate Authority is erroneous & shows non-application of mind.
5. Advocate Loney, learned AGP has stated that there was already a temporary permit given to MSRTC in view of the time which was required to adjudicate the controversy & accordingly, during pendency of applications, MSRTC started plying buses on these 3 interstate routes. He further states that the Appellate Authority remanded the matter back to respondent No.2 and during the period of consideration, MSRTC complied with requirements of section 20. He invites attention to various dates in this respect as contained in the impugned order. He states that before MSRTC started operations as per the appellate order, there was compliance. He further states that the issue is already concluded and such compliance with section 20 has to be before commencement of actual operations on these three routes. He further states that in any case non-compliance with section 20, RTC Act is mere irregularity and MSRTC, being instrumentality of State Government and the public transport system, has been rightly given permission to operate on abovementioned 3 interstate routes. He relies upon the judgment of Hon'ble Apex Court reported at AIR 1968 SC 1095 in case of A. Vishwanath Rao. He further points out that respondent No.1 has found that there was compliance on 9-3-1989 and it is much before the decision which was taken on 10-9-1991. He further points out that by the judgment dated 8-5-1991, the Appellate Authority directed the lower authority to consider grant of temporary permit to MSRTC. He states that judgment of Hon'ble Division Bench in 1978 Mh.L.J. 462 is applicable in the matter and the permit as given to respondent No.3 needs to be upheld.
6. Learned counsel Shri. Wankhede for respondent No.3 has adopted the arguments of respondent No.1 and 2 and stated that as the bus service is already extended and the petitioner is insisting on mere technicality without pointing out any prejudice, writ petition deserves to be dismissed.
7. The grievance of petitioner that his objection has not been considered in spite of remand, needs to be looked into. This aspect is considered in the impugned order in paragraph 7 and respondent No.1 has observed that present respondent No.3 - MSRTC alone has right for grant of permit. Therefore, the question of considering the preference to any other operators for better service or less fare was found to be not relevant. The petitioner has not demonstrated has this application of mind by Appellate Authority is in any way perverse. Earlier Writ Petition No.1673 of 1991 filed by petitioner was permitted to be withdrawn with liberty to him to raise the points in appeal. No direction was given by High Court to Appellate Authority to consider any particular point in any particular way. The grievance made by the petitioner is that he could not lodge objection within time as required by section 57(4) of old Act because there was no proper publication in accordance with requirement of Section 57. In this case, the substance of application of MSRTC has been published in Official Gazette on 22-9-1988 and representations/objections were called for on or before 10-10-1988. No such representation or objection was received. The contention of petitioner is that Government Gazette became available to it on 5-12-1988 and the copy of Gazette dated 22-9-1988 was not available at all at Nagpur. The State Transport Authority has found that such contention cannot be accepted. It is to be noted that publication of notification/substance in Official Gazette has got legal sanctity and it is not the case of petitioner that there was no such publication or publication was in the mode contrary to one contemplated by provisions of section 57(3) of 1939 Act. Once the publication is accepted, contention of petitioner that it did not have knowledge cannot be accepted. The lower authority has considered this story of petitioner in detail in paragraphs 14 and 15 of its order. The authority has also considered the chaotic situation which would arise if such arguments are accepted. I do not find any perversity on jurisdictional error in it. This order was challenged in appeal by petitioner vide Appeal No.42 of 1989 and Appellate Authority has by its judgment dated 8-5-1991 remand the matter back to find out only compliance with section 20 of RTC Act. These details are already given above. This order of remand was not in any way disturbed by High Court. In such circumstances, it is apparent that the issue regarding objection of petitioner under Section 57(4) of Motor Vehicle Act, 1939 (Old Act) was not again open for consideration before respondent No.2. After remand, respondent No.2 has considered the issue of compliance with Section 20 and after noticing various dates and after noticing the judgment reported at 1978 Mh.L.J. 462 between Kunjilal Hanumanlal Jaiswal Vs. B. G. Deo found that provisions of Section 20(3) are not condition precedent but must be complied with before the operations start on extended routes. Here, it is not demonstrated that MSRTC extended its operations before sanctioning the scheme. On the contrary, it is a matter of record that MSRTC was given temporary permit to operate buses on these 3 interstate routes. The observations of respondent No.1 in paragraph 7 of its impugned judgment need to be understood in this background. Even otherwise, the grievance made is that copy of Official Gazette was not available to petitioner at Nagpur before 5-12-1988. It is not his case that there was no publication as required by section 57(3) of Motor Vehicle Act, 1939. From the judgment of Hon'ble Apex Court in case of Union of India & Ors. Vs. Ganesh Das Bhojraj reported at AIR 2000 SC 1102 = 2000(9) SCC 461, it is apparent that such arguments cannot be accepted. In this case, Two Judges Bench of Apex Court by order dated 15th October, 1999 has referred matter to a larger Bench by observing thus :- "It appears that there is a conflict in the ratio of the decisions of this Court in M/s. Pankaj Jain Agencies Vs. Union of India & Ors., (1994(5) SCC 198); Collector of Central Excise Vs. New Tobacco Co. & Ors., (1998(8) SCC 250) and I.T.C. Limited Vs. Collector of Central Excise Bombay, (1996(5) SCC 538) is also relevant. In our view it is appropriate that this appeal is to be heard by a larger Bench". Brief facts before Hon'ble Apex Court are that Respondent therein admittedly imported a consignment of Green Beans (Pulses) weighing 505-505 M.T. vide Invoice No.14/099, dated 31-12-1986. They had filed bill of entry for the same on 05-02-1987. The importer claimed clearance of the said goods free of duty on the basis of Exemption Notification No.129/76- Cus dated 02-08-1976. However, it was pointed out that on 04-02-1987 the said notification was amended vide Notification No.40/87- Cus, whereby basic duty @ 25% was levided. As the duly was levied @ 25% importer filed Writ Petition No.535 of 1987 in this High Court contending inter alia that the said notification was not only published and that it was not in force on the date. A Division Bench of the High Court of Bombay accepting the said contention on the basis of Full Bench decision of the said Court in the case of Apar (P) Ltd. Vs. Union of India and Ors., [1985(22) ELT 644] allowed the writ petition. The State Government approached Hon'ble Apex Court and the Hon'ble Apex Court has observed :-
"6. The contention is - the aforesaid Notification was not made available to public at large and, therefore, on the basis of the said Notification, customs duty cannot be levied. The learned counsel for the appellant relied upon the decision in M/s. Pankaj Jain Agencies Vs. Union of India and Ors., (1994)5 SCC 198 and the learned counsel for the respondent-importer has relied upon the decision in Collector of Central Excise Vs. New Tobacco and Ors., (1998)8 SCC 250 in support of their respective contentions.
7. In Pankaj Jain Agencies (supra), this Court considered similar contention with regard to the Exemption Notification issued under Section 25 of the Customs Act, 1962 and held that there was no substance in the contention that notwithstanding the publication of the notification in the Official Gazette, there was yet a failure to make law known and that, therefore, the notification did not acquire the elements of operativeness and enforce-ability."
(Remaining portion of this paragraph not reproduced.)
12. In our view, as noted above, in Pankaj Jain Agencies' case, the Court directly dealt with a similar contention and after relying upon the decision in the case of Mayer Hans George (supra) rejected the same. That decision is followed in I.T.C. Ltd. (supra) and other matters. Hence, it is difficult to agree that the decision in Pankaj Jain Agencies' case was not helpful in deciding the question dealt with by the Court. Section 25 of the Customs Act empowers the Central Government to exempt either absolutely or subject to such conditions, from the whole or any part of the duty of customs leviable thereon by a notification in Official Gazette. The said notification can be modified or cancelled. The method and mode provided for grant of exemption or withdrawal of exemption is issuance of notification in the Official Gazette. For bringing Notification into operation, the only requirement of the section is its publication in the Official Gazette and no further publication is contemplated. Additional requirement is that under Section 159 such notification is required to be laid before each House of Parliament for a period of thirty days as prescribed therein. Hence, in our view Mayer Hans George (supra) which is followed in the Pankaj Jain Agencies' case represents the correct exposition of law and the Notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Gazette of India i.e. the date of publication of the Gazette. Apart from prescribed requirement under Section 25, usual mode of bringing into operation such notification followed since years in this country is its publication in the Official Gazette and there is no reason to depart from the date by laying down additional requirement.
15. From the aforesaid judgment it can be stated that it is establish practice that the publication in the official gazette, that is, Gazette of India ordinary method of bringing a rule or subordinate legislation to the notice the persons concerned. Individual service of a general notification on every member of the public is not required and the interested person can acquired himself with the contents of the notification published in the gazette. It is the usual mode followed since years and there is no other mode prescribed under the present statute except by the amendment in the year 1998 by Bill No.21 of 1998.
18. From the aforesaid observations, it is plain and clear that the decision in B. K. Srinivasan (supra) also reiterates that the notification will take effect only when it is published through the customarily recognised official channel, namely, the official gazette. We also agree with the reasons recorded in Mayer Hans George (supra) and hold that notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required. Hence, the decision rendered in Pankaj Jain Agencies (supra) represents the correct exposition of law on the subject. The decision rendered in New Tobacco Co. followed in Garware Nylons Ltd. (supra) does not lay down the correct law."
Hon'ble J. Shri. R. C. Lahoti delivered a separate concurring judgment and paragraph 26 thereof reads as under :-
"26. The case at hand is one where through the writ petition filed by the respondent before the High Court the liability to pay customs duty at the rate of 25 per cent of the value of the goods was sought to be avoided and goods were sought to be released from detention of the customs authorities. In such a case the publication of notification in the Government Gazette in the manner contemplated by Section 25(1) of the Customs Act would be enough to import the liability to pay customs duty without regard to the enquiry into the fact whether the notification had actually come to the knowledge of the importer or not. It is not the respondent's case that the relevant Gazette has been published ante-dated. What will be the impact of publication in the Government Gazette though the Gazette in spite of having been published was not available to be seen by the persons affected when criminal consequences are sought to be inflicted - is a question which should in my opinion be left open to be gone into in an appropriate case. Non-availability of Gazette carrying the notification may provide foundation for a defence plea of innocence where mens rea is an ingredient of offence committed by breach of notification. Where mens rea is not an ingredient, want of circulation of Gazette may still be a reason for leniency in punishment. These are the questions which need to be left open.
27. With this much reservation I agree with my learned brother M. B. Shah, J. that the appeal has to be allowed."
8. It is apparent that grievance made by the petitioner about non-availability of Government Gazette cannot have any legal bearing insofar as present controversy is concerned. Even otherwise, the Appellate Authority has also considered the issue of compliance with section 20 of RTC Act in paragraph 6 of its order. The dates specified therein are not in dispute. The Appellate Authority has found that there was compliance on 9-3-1989 which was subsequent to the making of application but before State Transport Authority decided the matter. On 10-11-1982 MSRTC sought permission of State Government under Section 20(1) to negotiate with M. P. Government and it was even on 12-1-1983. By letter dated 20-5-1985 M. P. Government granted permission under Section 20(2) of RTC Act. The MSRTC By letter dated 25-3-1986 prepared the scheme and forwarded it to M. P. Government for their consent under section 20(2). On 31-1-1989, M. P. Government informed MSRTC that it has approved the scheme and accorded consent. On 14-2-1989, Maharashtra Government informed MSRTC about their approval of the scheme. By order dated 9th March, 1989, MSRTC sanctioned the scheme. Thus entire process was complete before the decision dated 10-9-1991 which was taken by respondent No.2. It is not in dispute that MSRTC extended its operations on new route after 10-9-1991. The Appellate Authority has relied upon judgment reported at AIR 1970 Assam 75, (Kashab Das Vs. M. C. Das) to hold that in view of remand earlier by it, the first decision of respondent No.2 did not survive and, therefore, relevant to date for compliance was 10-9-1991 and not 22-2-1989. This approach of respondent No.1 Appellate Authority is not demonstrated to be perverse at all. Appellate Authority has also relied upon the decision dated 15 and 18 July, 1977 of Bombay High Court in Special Civil Application No.1913 of 1976 i.e. 1978 Mh.L.J. 462, (Kunjilal Jaiswal Vs. B. G. Deo) to hold that these provisions of section 20 of RTC Act are complied with before undertaking actual operations, that is sufficient compliance. The relevant observations of Hon'ble Division Bench are :-
"10. With this clear language of sub-section (3) of section 20, we have hardly any doubt that only requirement of the section is that the scheme ought to have been sanctioned before the service is extended to route falling in the area of interstate. It is not the condition precedent to the making of an application to the State Transport Authorities which is unavailable for any operator who wants to run a state carriage service. When the application is processed and is being heard, the sanctioning authority is bound to ask questions to the Corporation whether it has complied with the provisions of section 20 by sanctioning a scheme for extension of the route to interstate in accordance with provisions of sub-sections (1) and (2) of section 20. If the Corporation is able to answer in the affirmative, there is no infirmity in the way of the Corporation from extending the operation of its road transport service to such a route beyond the State of Maharashtra in adjoining territory of any other State. We do not see any objection to the application being made by Corporation though the absence of sanctioned scheme would undoubtedly have prevented the Corporation from extending operation of services if the Corporation were not in position to extend the service, needless to add a permit would not be given to such an operator by the S.T.A. This point is therefore without any substance and must be rejected."
9. In AIR 1968 SC 1095, (A. Vishwanath Rao Vs. State of Mysore) in paragraph 4, the Hon'ble Apex Court has held that not making scheme strictly in precise manner as directed by section 20 of RTC Act is mere irregularity which cannot lead to the nullification of final scheme.
10. Thus, I do not find any violation of Section 20 of RTC Act in the matter. The arguments of petitioner on these lines therefore need to be rejected. It is no doubt true that in view of judgment of Hon'ble Apex Court is at AIR 1997 SC 412 between Gajraj Singh Vs. State Transport, the provisions of 1939 Act, are completely eclipsed. Still, in view of the discussions made above, there was no scope for considering the alleged objection raised by petitioner even after 1-7-1989. The petitioner has argued only the point of non-compliance of Section 20 RTC Act. No other prejudice or injury has been demonstrated by him. Hence, it is not necessary for this court to dwell more on this point.