RASID JAVED & ORS. ETC. ETC.versusSTATE OF U.P. & ANR. ETC. ETC.

                     [2010] 7 S.C.R. 535


             RASID JAVED & ORS. ETC. ETC.                           A
                               V.
             STATE OF U.P. & ANR. ETC. ETC.
              (Civil Appeal No. 5951 of 2002)

                         JULY 5, 2010
                                                                    B
       [R.V. RAVEENDRAN AND R.M. LODHA, JJ.]

     Motor Vehicle Act, 1988:

       s. 102(1) - Cancellation or modification of scheme -         c
  Inter-state route - Saharanpur-Delhi route and other routes -
  1993 Scheme whereby the entire Saharanpur-Delhi route
. became fully nationalized for exclusive operation by State
  Transport Undertakings - Proposal to modify the 1993
  Scheme by State Government - Issuance of Notification             0
  dated 16.04.1999 uls. 102(1) - Objections invitf:3d and heard
  by Hearing Authority - Hearing Authority approving the
  proposed modification that private operators be allowed to ply
  their vehicles - However, State Government issued
  Notification dated 15.04.2000 u/s. 102(1) rlw s. 21 of the 1897
  Act, to rescind Notification dated 16.04.1999 - Validity of -     E
  Held: Notification dated 15. 04. 2000 is valid and does not
  suffer from any legal flaw - There was no impediment for State
  Government in exercising its power to rescind the Notification
  dated 16.04.1999 since the order df Hearing Authority cannot
  be treated as order of State Government u/s. 102(1)- General      F
  Clauses Act, 1897 - s. 21.

     s. 102 - Cancellation or modification of scheme - Extent
 of authority to Hearing Authority - Held: Delegatee must
 confine his activity within four corners of powers vested in him   G
 and if he acts beyond that, his action cannot have any legal
 sanction unless ratified by de/egator - Distinction must be
 maintained where hearing authority is empowered by State
 Government to hear objections and approve proposed
                                535                                 H
    536      SUPREME COURT REPORTS               [2010] 7 S.C.R.


A modification or modify the approved sc;heme and a case
    where it is authorized to hear objections relating to proposed •
    modification to the approved scheme - On facts, Hearing
    Authority not authorized to approve the proposed modification
    or modify the approved scheme - Order of Hearing Authority
s   being in excess of authority given to him, cannot be construed
    as final order of approval uls. 102 (1).

       Permit granted to appellant relating to Saharanpur-Delhi
  route - Status of appellant's permit - Held: Said permits
  related to routes which overlapped Delhi-Saharanpur notified
C route - By the 1959 Scheme and 1993 Scheme, entire
  Saharanpur-Delhi route became fully nationalized for
  exclusive operation by State Transport Undertakings and no
  private operator could operate on the said route - Regional
  Transport Authority cannot either renew permit of such private
D operators or give any fresh permit in respect of route which
  overlaps notified route - Thus, appellants' permits stood
  cancelled.

         Motor Vehicles Act, 1939: s. 68 C and 680 - Publication
E   of a scheme of road transport service by State Transport
    Undertakings - Effect of - Held: No person other than STU
    may operate on the notified area or notified route except as
    provided in the scheme itself.

       General Clauses Act, 1897: s. 21 - Invocation of.:.. Held:
F Authority which has power to issue notification has undoubted
  power to rescind or modify the notification in the like manner
  - On facts, there was no impediment for State Government
  in exercising its power uls. 102 of the 1988 Act rlw s. 21 to
  rescind the Notification dated 16. 04. 1999 - Order of Hearing
G Authority was not an order of approval uls.102(1) of the 1988
  Act - Power of State Government to rescind Notification dated
  16. 04. 1999 did not get exhausted - Motor Vehicles Act, 1.988
  - s. 102(1).
          The inter-State route of Saharanpur-Delhl became a
H
   RASID JAVED & ORS. ETC. v. STATE OF U.P. & . 537
                  ANR. ETC.
  notified route under the 1959 Scheme. It was provided in A
  the Scheme that the persons .other than the State
  Transport Undertaking (STU) would not be permitted in .
  plying any road transport service on the said route or
  portion thereof except as stated therein. The private
  operators challenged the Scheme. The H.igh Court B
  directed the State G'overnment not to enforce the 1959
  Scheme against the said operators. This Court in *Jeewan
  Nath Wahal's case upheld the order of High Court.
  Thereafter, pursuant to the decision in **Shri Chand's
  case, the UPSRTC published a draft scheme on February c
· 13, 1986 for 39 routes: Saharanpur-Delhi and others.
  While the said draft scheme was pending, the Motor
  Vehicles Act, 1939 was repealed and the Motor Vehicles
  Act, 1988 came into force. Subsequently, some operators
  were granted permits for Saharanpur to Ghaziabad via 0
  Shahdara routes. The said grant of permits wa~
  challenged in ***Ram Krishna Verma's case and it was held
  that the nationalization of Saharanpur - Delhi route by the
  1959 Scheme is operative to the total exclusion of every
  operator except UPSRTC and 50 operators whose
  objections were upheld by the High Court. The permits E
  granted to the private operators were quashed.
  Thereafter, the competent authority approved the 1986
  draft Scheme and directed the same to be published. On
  May 29, 1993, the approved scheme-1993 Scheme was
  published in the Gazette.                                   F
     In the Notification published on April 1~, 1999 under
 section 102(1) of the Motor Vehicles Act, 1988 the State
 Government proposed to modify the scheme notified on
 May 29, 1993 by providing that permit holders shall be G
 allowed to operate their buses along with the Uttar
 Pradesh State Road Transport Corporation (UPSRTC) on
 the said route provided they got their permits counter-
 signed by State of Haryana for plying their buses in that
 State. Objections were invited. The Hearing Authority•Z, .H
                                                                  ~
     538      SUPREME COURT REPORTS             [201 O] 7 S.C.R.


 A Special Secretary and Additional Legal Remembrancer
   heard the affected parties. It passed the Order dated
   October 11, 1999 that proposed modification be
   approved-private operators be allowed to ply their
   vehicle. However, the State Government by a Notification
 B dated April 15, 2000 in exercise of the powers under
   section 102 of 1988 Act read with section 21 of General
   Clauses Act, 1897 rescinded the Notification dated April
   16, 1999. The private operators filed writ petition
   questioning the Notification dated April 15, 2000 issued
 c by the State of U.P. rescinding the earlier Notification
   dated April 16, 1999. The writ petitions were dismissed.
   Hence these appeals.
           Dismissing the appeals, the Court
 o       HELD: 1. The Notification dated April 15, 2000 is valid
     and does not suffer from any legal flaw. [Para 44] [568-
     C-D]
       2. The permit granted to the appellants related to
   routes which overlapped the Delhi-Saharanpur notified
 E route. [Para 28] [559-B]
     The effect of publication of a scheme under Section 68D:
         3. Chapter IV-A of the Motor Vehicles Act, 1939
     makes special provisions relating to the State Transport
  F Undertakings (STUs). Section 68-C provides for
     preparation and publication of scheme of road transport
     service by an STU. The objections to the draft scheme
    ·published under section 68-C may be filed under section
     68-D. Sub-section (2) of section 68-D provides that the
· G State Government after considering the objections and
     hearing the objectors and the STU may approve or
     modify the scheme. Sub-section (3) of section 68-D
     provides that the scheme as approved or modified under
     sub-section (2) shall be published in the Official Gazette
  H. by the State Government and the same shall th~n
  RASID JAVED & ORS.· ETC. v. STATE OF U.P. &            539
                 ANR. ETC.
become final and called 'approved scheme'. Once the A
scheme has been published under sub-section (3) of
section 68-D, section 68-FF imposes restriction on grant
of permits in respect of notified area or notified route.
From these provisions, it is apparent that once a scheme
is published under section 68-D in relation to any area or B
route or portion thereof, whether to the exclusion,
complete or partial of other persons or otherwise, no
person other than the STU may operate on the notified
area or notified route except as provided in the scheme
itself. [Para 30] [559-F-H; 500-A-B]                       c
      Adarsh Travels Bus Service and Anr. v. State of U.P. and
·Ors. (1985) 4 SCC 557; Mysore State Road Transport
 Corporation v. Mysore State Transport Appellate Tribunal
 (1974) 2 SCC 750; H.C. Narayanappa and Ors. v. State of
 Mysore and Ors. (1960) 3 SCR 742; Ram Krishna Verma and         D
 Ors. v. State of U.P. and Ors. (1992) 2 sec 620, relied on.
The status of appellants' permits
    4.1. The Saharanpur-Delhi route became a notified
route under the 1959 Scheme. The Saharanpur-Delhi                E
route on its nationalization stood frozen under the 1959
Scheme against everyone except 50 operators. The draft
scheme published on February 13, 1986 was confined to
those 50 operators alone and not to other pri~ate
operators. By the 1993 Scheme, Saharanpur-Delhi route            F
stood frozen against 50 operators as well. The effect of
these two schemes (1959 Scheme and 1993 Scheme)~
thus, has been that the. entire Saharanpur-Delhi route\
became fully nationalized for the exclusive operation by
the STU i.e., UPSRTC and no private operator could               G
operate on the said route. Thus, the Regional Transport
Authority cannot either renew the permit of such private
operators or give any fresh permit in respect of a route
which overlaps the notified route, the appellants' permits
stood cancelled and in any case these permits lost their         H
     540     SUPREME COURT REPORTS               [2010] 7 S.C.R.


 A legal significance and sanctity. [Para 33] [561-A-G; 562-
     A]
          4.2. The whole exercise undertaken by the State
     Government under sub-section (1) of section 102 of 1988
     Act proposing to modify the 1993 Scheme relating to
 8   Saharanpur-Delhi notified route was misconceived as the
     permits specified in that Notification did not exist in law.
     The finding of the High Court that the modification
     proposal dated April 16, 1999 proceeded on the
     misconception that the appellants were holding permits
 C   on the concerned route cannot be said to be unjustified.
     Moreover, in the absence of any proposal to modify the
     1959 Scheme, the modification proposed in the 1993
     Scheme vide Notification dated April 16, 1999 was
     meaningless. The submission that the 1959 Scheme
 D   merged in the. 1993 Scheme has no merit. The 1959
     Scheme was approved under 1939 Act and even after
     repeal of 1939 Act by 1988 Act, the State Government was
     competent to prepare fresh scheme by following the
     procedure contemplated In sections 99 and 100 or modify
 E   that scheme under section 102 of the 1988 Act but the
     proposed modification published in the Notification on
     Aprll 16, 1999 does not seek to modify the 1959 scheme
     at all. Since the Notification dated April 16, 1999 Is, ex
     facie, misconceived and meaningless as regards
 F   Saharanpur-Delhi route, the proceedings taken pursuant
     thereto by the Hearing Authority and his decision dated
     October 11, 1999 also have no legal effect. [Para 33] [562-
     A-F]
         *Jeewan Nath Wahal v. State Transport Appellate
  G Tribunal (C.A. No.1616 of 1968) decided by S.C. on
    03.04.1968; **Shri Chand v. Govt. of U.P. Lucknow and Ors.
    Citizen Council for Public Service v. Govt. of U. P. and Anr.
    (1985) 4 SCC169; ***Ram Krishna Verma and Ors. v. State
    of U.P. and Ors. (1992) 2 sec 620; Nisar Ahmad and Ors.
                                                .
. H v. State of U.P.. and Ors. 1994 Suppl. (3) SCC .
                                                      460; Gajraj
  RASID JAVED & ORS. ETC. v. STATE OF U.P. &          541
                 ANR. ETC.
Singh and Ors. v. State of U.P. and Ors. (2001) 5 SCC 762,   A
referred to.
Section 102 of the 1988 Act and the extent of authority
to the Hearing Authority
     5.1. A close look at section 102 of the Motor Vehicles B
Act, 1988 would make it manifestly clear that modification
of the approved scheme may be done by the State
Government in the public interest after giving opportunity
of being heard in respect of proposed modification to the
STU and the persons likely to be affected by the C
proposed modification. The modification proposed is
required to be published in the Official ~azette and in one
of the newspapers in the regional languages circulating
in the concerned area under section 102(2). It was
submitted that in the proposed modification published in D
the Official Gazette on April 16, 1999, the authority to hear
the objections/representations was given to Z-Special
Secretary and Additional Legal Remembrancer and the
said Hearing Authority after hearing the objections of the
affected persons and· the UPSRTC approved the E
proposed modification and rejected the objections
received in this regard and the approval by the Hearing
Authority of the proposed modification by his order dated
October 11, 1999 is the approval of the State Government.
It cannot be said that the order dated October 11, 1999
of the Hearing Auth;>rity approving the proposed F
modification published in the Official Gazette dated April
16, 1999 is an order of the State Government modifying
the approved scheme of 1993 under section 102(1) of the
1988 Act because Z was given authority to hear the
representations received by the State Government to the .G
proposeq modification but no authority was given to him
to approve the proposed modification or modify the
approved scheme. The Notification dated April 16, 1999
does not empower the Hearing Authority to approve or
modify the scheme; he has only been empowered to heu · H
    542    SUPREME COURT REPORTS              [2010] 7 S.C.R.


A the objections. That a person who hears must decide and
  that divided responsibility is destructive of the concept
  of judicial hearing is too fundamental a proposition to be
  doubted. But based on such principle the limited authority
  of hearing given to the Hearing Authority by the State
B Government cannot be treated as enlarged in its scope.
  A delegatee must confine his activity within four corners
  of the powers in vested in him and if he has acted beyond
  that, his action cannot have any legal sanction unless
  ratified by the delegator. [Para 35) [563-H; 564-A-H; 565-
C A]
         Gullapalli Nageswara Rao and Ors. v. Andhra Pradesh
    State Road Transport Corporation and Anr. AIR 1959 SC 308,
    referred to.

0     5.2. A distinction must be maintained where the
  hearing authority is empowered by the State Government
  to hear objections and approve the proposed
  modification or modify the approved scheme and a case
  where the hearing authority is authorized to hear the
E objections/representations relating to the proposed
  modification to the approved scheme. In the latter case,
  the authority delegated to the Hearing Authority is limited
  and he is not authorized to approve the proposed
  modification or modify the approved scheme. The instant
  case falls in the latter category and accordingly the order
F of the Hearing Authority dated October 11, 1999 is in
  excess of the authority given to him and cannot be
  construed as a final order of approval under section 102
  (1) of the 1988 Act. Whether such limited authority of
  hearing to the Hearing Authority makes any legal sense
G is an aspect for consideration by the State Government.
  Suffice, however, to say that it was not open for the
  Hearing Authority to approve the proposed modification
  or modify the proposed scheme. [Para 36) [565-B-E]

H
   RASID JAVED & ORS. ETC. v. STATE OF U.P. &           543
                  ANR. ETC.
 Invocation of Section 21 of General Clauses Act : whether     A
 valid
      6.1. Having held that the order of the Hearing
 Authority dated October 11, 1999 is in excess of the
 authority given to him and that the said order has no legal
                                                               8
 effect, there was no impediment for the State Government
 in exercising its power under section 102 of the 1988 Act
 read with section 21 of the General Clauses Act, 1897 to
 rescind the Notification dated April 16, 1999. [Para 37]
 [565-F-G]
                                                               c
     Kam/a Prasad Khetan and Anr. v. Union or India AIR
 1957 SC 676, referred to.
       6.2. Under section 21 of the General Clauses Act, an
  authority which has the power to issue a notification has
  the undoubted power to rescind or modify the notification    D
  in the like manner. In the instant case, there is no doubt
  that the Notification dated April 15, 2000 has been made
  in the same manner as the earlier Notification dated April
  16, 1999. Since the order of the Hearing Authority dated
  October 11, 1999 is not an order of approval under           E
  section 102(1) of the 1988 Act and cannot be treated as
· such, the power of the State Government to rescind the
  Notification datea April 16, 1999 did not get exhausted.
  The submission that the draft Notification dated April 16,
  1999 merged in the order dated October 11, 1999 is           F
  fallacious and devoid of any substance. [Para 40] [566-
  E-G]
     6.3. It cannot be said that even otherwise the
 material on record demonstrated that the order of the
 modificatio·n dated October 11, 1999 was approved by the      G
 Principal Secretary of the Department and, thus, there
 was an approval by the State Government. Except the
 decision of the Hearing Authority dated October 11, 1999
 there is nothing on record to conclude that the State
 ~overnment had approved the proposed modification as          H
    544    SUPREME COURT REPORTS               [2010] 7 S.C.R.

A notified on April 16, 1999. Even if it is assumed that an
  executive action not expressed to be made in the name
  of the Governor as contemplated under Article 166(1) of
  the Constitution may not vitiate such action as nullity.
  [Para 41] [566-H; 567-A-C]
B      G.4. The non-compliance with the provisions of either
  of clauses of Article 166 would lead to the result that order
  in question would lose the protection which it would
  otherwise enjoy had the proper mode for expression and
  authentication been adopted, but then there has to be
C some formal order by the State Government under
  section 102(1) of the 1988 Act. Moreover, there is nothing
  on record even to indicate that the order dated October
  11, 1999 of the Hearing Authority was communicated to
  the appellants or any of the affected parties. The order
D dated October 11, 1999 is not an order as contemplated
  under Section 102 (1) of the 1988 Act by the State
  Government approving the modification proposed in the
  Notification dated April 16, 1999. [Para 41] [567-C-E]
E       Dattatraya Moreshwar Pangarkar v. The State of Bombay
    and Ors, (1952) 1 SCR 612, relied on.
       6.5. The order of the Hearing Authority dated October
   11, 1999 cannot be treated as an order of the State
 - Government under section 102(1) of the 1988 Act. [Para
F 42] [567-F-G]
      6.6. The submission that the opportunity of hearing
  was required to be given to the appellants before
  issuance of Notification dated April 15, 2000 has no merit
G since this submission is founded on the premise that the
  order of-the Hearing Authority dated October 11, 1999 is
  the order of the State Government. What section 21 of the
  General Clauses Act requtres is that the authority
  empowered to issue notification must exercise its power
  to rescind such notification in the like manner. The
H Notification dated April 15, 2000 has been made in the
   RASID JAVED & ORS. ETC. v. STATE OF U.P. &            545
                  ANR. ETC.                                  ~,

 same manner as the earlier Notification dated April 16,          A
 1999. [Para 43] [567-G-H; 568-A-B]
       Samsher Singh v. State of Punjab and Anr. (197 4) 2
  SCC 831; Capital Multi-purpose Co-operative Society Bhopal
  and Ors. v. State of M.P. and Ors. (1967) 3 SCR 329; A.
                                                                      8
  Sanjeevi Naidu, Etc. v. State of Madras and Anr. (1970) 1
. SCC 443; Mis. Nehru Motor Transport Co-operative Society
 'Ltd. and Ors. v. State of Rajasthan and Ors. AIR 1963 SC
  1098; Afsar /ahan Begum (Smt) and Ors. 11. State Of M.P.
  and Ors. (1996) 8 SCC 38; C.P.C. Motor Service, Mysore v.
  State of Mysore and Anr. AIR 1966 SC 1661; Karnataka State      c
  Road Transport Corporation v. Ashrafulla Khan and Ors.
  (2002) 2 sec 560, referred to.
                     Case Law Reference:
    (1985) 4 SCC169      Referred to.                             D
                                           Para 11,12, 33,
    (1992) 2 sec 620     Referred to.     ~ara 14, 15, 16,
                                           23, 32,33
    (1974) 2 sec 831     Referred to.      Para 21                    E
    (1967) 3 SCR 329     Referred to.      Para 21
    (1970) 1 sec 443     Referred to.      Para 21
    AIR 1959 SC 308      Referred to.      Para 21, 35
                                                                      F
    AIR 1963 SC 1098 Referred to.          Para 21
    (1996) 8 sec 38      Referred to.      Para 26
                                                                  /

    AIR 1966 SC 1661     Referred to.      Para 26
    (2002) 2 sec 560 . Referred to.        Para 26                G

    (1985) 4 sec 557     Relied on.        Para 30
    (1974) 2 sec 150     Relied on.        Para 31
    (1960) 3 SCR 742     Relied on.        Para 32                    H
    546      SUPREME COURT REPORTS                 [2010] 7 S.C.R


A      1994 Suppl.(3)
       SCC 460                Referred to.        Para 33
       (2001) 5 SCC 762       Referred to.        Para 33
       AIR 1957 SC 676        Referred to.        Para 39
B
       (1952) 1 SCR 612       Relied on.          Para 41
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5951 of 2002.

      From the Judgment & Order dated 23.4.2002 of the High
C Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
  24070 of 2000.

                                 WITH

D C.A. Nos. 4894, 4895 of 2010.

        Dinesh Dwivedi, Nagendra Rai, P.N. Gupta for the
    Appellants.

          Ratnakar Dash, Shail Kr. Dwivedi, Addi. A.G., Raj Kumar
E   Gupta, Rajeev Kr. Dubey, Kamlendra Mishra, Vandana Mishra,
    Pramod Swarup, Rani Chhabra, Garima Prashad, Neha Goyal
    for the Respondents.

          The Judgment of the Court was delivered by

         R.M. LODHA, J. 1. Delay condoned and leave granted in
F   SLP(C) No.820 of 2003. Leave also granted in SLP (C) No.
    21707 of 2002. The applicants in the I.As. for impleadment are
    allowed to intervene.

    Introduction
G
         2. Five writ petitions by various operators came to be filed
    before High Court of Judicature at Allahabad questioning the
    Notification dated April 15, 2000 issued by the State of U.P.
    rescinding the earlier Notification dated April 16, 1999 and for
H
  RASID JAVED & ORS. ETC. v. STATE OF U.P. &                547
          ANR. ETC. [R.M. LODHA, J.]

consequential reliefs. The Division Bench of Allahabad High        A
Court heard these writ petitions together and by a common
judgment dated April 23, 2002 dismissed all the writ petitions.
It is from this common judgment that these three appeals by
special leave arise.
                                                                   B
Facts

      3. The brief facts in relation to these appeals may be set
out first.

A. Appeal by Rasid Javed and others                                c
     4. The appellants in this appeal claim that they have been
operators on Saharanpur-Karnal route (inter-State route) via
Jandhera - Rampur - Gangoh - New Yamuna Bridge. In the
Notification published on April 16, 1999 under Section 102(1)
of the Motor Vehicles Act, 1988 (for short, 'the 1988 Act'), the   0
State Government proposed to modify the scheme notified on
May 29, 1993 by providing that permit holders bearing Nos.
168/94, 169/94. 170/94, 171/94, 172/94, 173/94, 222/94, 233/
94, 23/95, 24/95, 25/95, 739/89, 242/94, 764/90, 787/90, 772/
90, 800/90 and 784/90 shall be allowed to operate their buses      E
along with the Uttar Pradesh State Road Transport Corporation
(UPSRTC) on Saharanpur-Karnal route (via Jandhera-Rampur-
Gangoh-New Yamuna Bridge) provided that they get their
permits counter-signed by State of Haryana for plying their
buses in that State. By the said Notification, objections were     F
invited from the UPSRTC and the persons likely to be affected
by the proposed modification and Shri Zamirruddin, Special
Secretary and Additional Legal Remembrancer, Uttar Pradesh
was appointed Hearing Authority to hear and decide the
objections that may be received. Pursuant to the said              G
Notification, objections were received and the Hearing Authority
after hearing the affected parties held in its Order dated
October 11, 1999 that proposed modification be approved, i.e.
private operators be allowed to ply their vehicles. According to
                                                                   H
    548      SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A   the appellants, they are covered by the permits mentioned at
    SI. No. 1 [column 4 - (c)(iii)] of the Schedule to the Notification
    dated April 16, 1999.

    8. Appeal by Masood Ahmad and others
B      5. The appellants in this appeal claim to be permit holders
  in respect of Saharanpur-Loni route via Shamli-Baghpat-
  Marginal Bandh Road - ISBT Delhi. According to them, they
  are covered by SI. No.1 [column 4 - (c)(i)] of the Schedule to
  the Notification dated April 16, 1999. By the said Notification,
C the approved scheme dated May 29, 1993 was sought to be
  modified and it was proposed to allow these operators to
  operate their buses along with the UPSRTC on Saharanpur-
  Loni via Shamli-Baraut-Baghpat-Marginal Bandh Road - ISBT
  Delhi route.
D
    C. Appeal by Raghunandan Goyal and Others

        6. The appellants claim to have been granted inter-State
  permits by the State Transport Authority (STA), Uttar Pradesh
  for an inter-State route known as Meerut-Chandigarh via Baraut-
E Shamli-Gangoh-Saharanpur-Sarsawa-Yamuna Nagar-Ambala.
  Their case is that in the draft modification published in the
  Notification dated April 16, 1999, their permits are mentioned
  at SI. No. 1 [column 4 - (c)(ii)] of the Schedule thereof. By the
  said modification, it was proposed to allow these operators to
F operate their buses along with the UPSRTC on Meerut-
  Chandigarh via Baraut-Shamli-Gangoh-Saharanpur-Sarsawa-
  Yamuna Nagar-Ambala route provided that the permit holders
  get their permits counter-signed by the State Government of
  Haryana for plying their buses in that State.
G
  f>aharanpur-Delhi route (the 1959 Scheme) and previous
  litigation

        7. On February 26, 1959, a draft scheme was published
    under Section 68-C of the Motor Vehicles Act, 1939 ('the 1939
H
      RASID JAVED & ORS. ETC. v. STATE OF U.P. &                549
              ANR. ETC. [R.M. LODHA, J.]

Act' for short) in respect of the inter-State route viz; Saharanpur     A
- Delhi proposing to authorize the State Transport Undertaking
(STU) of Uttar Pradesh to operate stage carriages on the said
route to the exclusion of all other operators.

          8. On September 29, 1959 the State Government                 8
    <lpproved the said draft scheme and published it under sub-
    section (3) of Section 68-D of 1939 Act (hereinafter referred
    to as 'the 1959 Scheme'). The 1959 Scheme provided 50 (25
    each way) State Road Transport Services or more as may
    appear necessary from time to time on that route or portion         C
    thereof from November 1, 1959 or thereafter. It was provided
    in the approved scheme that the persons other than the STU
    will not be permitted in plying any road transport service on the
    said route or portion thereof except as rnentioned therein.

         9. A group of writ petitions, one by 32 operators and the      D
    other by 18 operators was filed before the High Court of
    Allahabad questioning the validity of the 1959 Scheme. The
    High Court vide its judgment dated October 30, 1961 directed
    the State Government not to enforce the 1959 Scheme against
    32 operators who had filed the first batch of writ petitions and    E
    it was directed that the State Government should hold a fresh
    enquiry into the question whether the scheme should be
    approved or not. Similar judgment was passed in the other
    batch of writ petitions relating to 18 operators on February 7,
    1962.                                                               F
      10. The aforesaid judgments of Allahabad, High Court
  were affirmed by this Court in Jeewan Nath Wahal v. State
  Transport Appellate Tribunal (C.A. No.1616 of 1968) decided
1
  on 03.04.1968. In Jeewan Nath Wahal, it was held that the
  1959 Scheme was operative and not affected and its                    G
· enforcement was prohibited against 50 operators only who
  approached the High Court. It was further held that the STU has
  the exclusive right to ply its vehicles on the notified route
  (Saharanpur - Delhi route).
                                                                        H
    550       SUPREME COURT REPORTS                     [2010] 7 S.C.R.


A       11. Two writ petitions, one by Shri Chand1 and the other
  by Citizen Council for Public Service were directly filed before
  this Court under Article 32 of the Constitution in the year 1985
  challenging the validity of proceedings which were pending
  before the State Government pursuant to a draft scheme
B pub~ished on February 26, 1959. This Court allowed these writ
  petitions on August 23, 1985 by the following order :

          "............ In the instant case the delay is in the order of 26
          years. In view of the above decisions we allow these writ
          petitions and quash the impugned scheme published on
c         February 26, 1959 and the proceedings which have taken
          place till now pursuant thereto and direct the State
          Government not to proceed with the hearing of the matter.
          It is now open to the State Transport Undertaking of Uttar
          Pradesh to publish a fresh draft scheme under Section 68-
D         C of the Act if it is of opinion that it is necessary to do so.
          We, however, permit the State Transport Undertaking to
          run the stage carriage vehicles which it is now running on
          the route in question under permits issued pursuant to the
          scheme which is now quashed, till February 28, 1986 or
E         till they are replaced by temporary permits to be issued
          under sub-section (1-A) of Section 68-F of the Act after
          the publication of a fresh draft scheme or by permits issued
          under Chapter IV of the Act, whichever is earlier."

F       12. Pursuant to the aforesaid decision in Shri Chand's
    case 1, the UPSRTC published a draft scheme on February 13,
    1986 for 39 routes; Saharanpur - Delhi (Saharanpur-Nanauta-
    Thanabhawan-Shamlikandhla - Baraut - Baghpat - Loni-Delhi)
    being the 1st Item in the draft scheme.

G The 1988 Act and matters before this Court in respect of
    Saharanpur-Delhi route


    1   Shri Chand v. Govt. of U.P., Lucknow & Ors.
        Citizen Council for Public Service v. Govt. of U.P. & Anr. [
H       (1985) 4 sec 1691
     RASID JAVED & ORS. ETC. v. STATE OF U.P. &             551
             ANR. ETC. [R.M. LODHA, J.]
     13. While the said draft scheme was pending, the 1939          A
Act was repealed and the 1988 Act came into force with effect
from July 1, 1989.

      14. It appears that immediately after the 1988 Act came
into force, two things happened viz; (one) some operators were
                                                                    8
granted permits for Saharanpur to Ghaziabad via Shahdara
routes and (two) the Hearing Authority held that the draft scheme
published on February 13, 1986 by the UPSRTC under the
1939 Act had lapsed by operation of Section 100 (4) of the
1988 Act. Ram Krishna Verma and few others filed writ
petitions in the High Court of Allahabad challenging the grant      C
of permits for Saharanpur to Ghaziabad via shahdara route
while the UPSRTC challenged the order of the Hearing
Authority by a separate writ petition. The writ petition filed by
the UPSRTC was dismissed by Allahabad High Court on
March 16, 1990. The writ petitions filed by Ram Krishna Verma       D
and others were also dismissed by the Allahabad High Court
on July 23, 1990. Special leave petitions were filed against the
aforesaid judgments before this Court in which leave was
granted. These appeals (Ram Krishna Verma and Ors. v.
 State of UP. & Ors. 2 ) were allowed vide judgment dated March     E
31, 1992. This Court held that the nationalization of Saharanpur
- Delhi route by the 1959 Scheme is operative to the total
exclusion of every operator except UPSRTC and 50 operators
whose objections were upheld by the High Court. In the
operative order, this Court quashed the permits granted to the      F
 private operators under Section 80 of the 1988 Act on the
 respective routes, parts or portions of the nationalized routes
 or February 13, 1986 draft scheme.

      15. After decision of this Court in Ram Krishna Verma 2 ,     G
the competent authority approved the Scheme and dir~cted the
same to be published. On May 29, 1993, the approved scheme
( for short, 'the 1993 Scheme') was published in the Gazette.
At Serial No. 1 of the 1993 Scheme is Saharanpur-Delhi route.

2.   (1992) 2 sec 620.                                              H
    552         SUPREME COURT REPORTS                     [2010] 7 S.C.R.

A         16. The controversy with regard to the extent and effect of
    the draft scheme dated February 13, 1986 and the 1993
    Scheme vis-a-vis the 1959 Scheme relating to Saharanpur-
    Delhi notified route reached this Court on more than one
    occasion. We have noticed some of these decisions in earlier
s   part of the judgment and shall consider this aspect further a little
    later. Suffice it to state here that the 1993 Scheme came to be
    published pursuant to decision of this Court in Ram Krishna
    Verma 2 •

    Present controversy
c
       17. By a Notification published on April 16, 1999, the State
  Government, in exercise of the powers under sub-section (1)
  of Section 102 of the 1988 Act proposed to make modification
  in the 1993 Scheme to the extent mentioned in column 4 of the
D Schedule appended thereto. In respect of Saharanpur-Delhi
  route modification proposed was as follows :
    "SI.   Notification       Name of the           Modification proposed
    No.    No. and date       notified route
           By which the       in which the
E          Routes were        modification
           Notified.          Is proposed.
    1.     2.                 3.                                     4.

    1.     No. 1635/30.2.93   Saharanpur-Delhi & 38 In the said scheme after
           565'85 dated       Delhi & 38            Clauses (b) of the
F          May 29, 1993       other routes          following clause shall be
                                                     inserted, namely :
                                                 (c) Notwithstanding
                                                       anything contained in
                                                       clauses (a) and {b) the
                                                       private bus operator;
G
                                                  (i) holding permit
                                                      numbers P.S.T.P./
                                                      MPMV 1/89, 2/89, 3/
                                                      89, 4/89, 5/89, 6/89, 71
                                                      89, 8/89, 9/89, 10/89,
H
RASID JAVED & ORS. ETC. v. STATE OF U.P. &           553
        ANR. ETC. [R.M. LODHA, J.]
                                 11/89, 12/89, 13/89,        A
                                 14/89, 16/89, 17/89,
                                 18/89, 19/89, Shall be
                                 allowed to operate
                                 their buses alongwith
                                 U.P.S.R.T.C. on the
                                 route        namely,        B
                                 Saharanpur-Loni Via-
                                 S ham a 1i- Bar au t-
                                 Bagh pat-Marg in al
                                 Bandh Road-ISBT
                                 Delhi.
                                                             c
                             (ii) holding          permit
                                  numbers P.S.R.T.P.
                                  303/89, P.S.T.P. 304/
                                  89 and, P.S.T.P. 305/
                                  89, shall be allowed to
                                  operate their buses        D
                                  alongwith U.P.S.R.
                                  T.C. on the Route
                                  namely        Meerut-
                                  Chandigarh via Baraut-
                                  S ham Ii - Gang oh -
                                  Saharanpur-Sarsawa-        E
                                  Yamuna-Ambala; and

                             (iii) holding          permit
                                   numbers 168/94, 169/
                                   94, 170/94, 171/94,
                                   172194, 173/94, 2221      F
                                   94, 233/94, 23/95, 24/
                                   95, 25/95, 739/89, 242/
                                   94, 764/90, 787/90,
                                   772/90, 800/90, 784/
                                   90, shall be allowed to
                                   operate their buses       G
                                   alongwith U.P.S.R.
                                   T.C. on the route
                                   namely:- Saharanpur-
                                   Karnal via Jandhera-
                                   R amp u r-G an go h -
                                   Nea Yamuna Bridge :       H
    554    SUPREME COURT REPORTS                [2010) 7 S.C.R.


A                                               Provided that the
                                             permit Holders sub-
                                             clauses (ii) and (iii)
                                             above shall get their
                                             permits     counter-
                                             signed by the State
B                                            Government          of
                                             Haryana for plying
                                             their buses in the
                                             State of Haryana. "

       18. The Notification provided that the UPSRTC and any
C other person likely to be affected by the proposed modification
  may make representations within 30 days from the date of
  publication of the Notification in the Gazette and that the
  representations so received will be heard by the Hearing
  Authority Shri Zamiruddin, Special Secretary and Additional
D Legal Rememberancer, Uttar Pradesh.

       19. In pursuance thereof various representations were
  received. The Hearing Authority after hearing the concerned
  parties who made the representations passed an order on
E October 11, 1999 approving the notified proposed modification
  and the objections presented by the UPSRTC and other
  objectors were dismissed.

      20. The State Government, however, by a Notification
  dated April 15, 2000 in exercise of the powers under Section
F 102of1988 Act read with Section 21 of General Clauses Act,
  1897 rescinded the Notification dated April 16, 1999.

    Main submissions of the parties

G      21. Mr. Dinesh Dwivedi, learned senior counsel led the
  arguments on behalf of the appellants. He argued that it was
  not open to the State Government to withdraw the Notification
  dated April 16, 1999 after it had been approved by the Hearing
  Authority by his order dated October 11, 1999. According to
H him, the order passed by the Hearing Authority on October 11,
     RASID JAVED & ORS. ETC. v. STATE OF U.P. &             555
             ANR. ETC. [R.M. LODHA, J.]
1999 is the order of the State Government under Section            A
102(1) and (2) of the 1988 Act. It is so because in the draft
Notification dated April 16, 1999, Shri Zamirudeen, Special
Secretary and Additional Legal Remembrancer was appointed
as the Authority to hear the objections and he was acting as
the State Government under the U.P. Rules of allocation of         8
business. In this regard, learned senior counsel placed reliance
on three decisions of this Court, viz., Samsher Singh v. State
of Punjab and another3; Capital Multi-purpose Co-operative
Society Bhopal and others v. State of M.P. and others4 and
A. Sanjeevi Naidu, Etc. v. State of Madras and anothef'. Mr.       C
Dinesh Dwivedi also submitted that decision under Section
102(1) of the 1988 Act has to be by the same Authority who
heard the objections and there could not be divided
responsibility of a quasi judicial act. He sought support from a
decision of this Court in Gul/apal/i Nageswara Rao and others
v. Andhra Pradesh State Road Transport Corporation and             D
another). He further argued that once the decision has been
taken by the Competent Authority then the State Government
cannot modify that decision because it is a quasi judicial
decision. He placed reliance on M/s. Nehru Motor Transport
Co-operative Society Ltd. & Ors. v. State of Rajasthan &           E
Others7 . In the alternative, learned Senior Counsel submitted
that even otherwise the material on record demonstrated that
the order of modification dated October 11, 1999 was approved
by the Principal Secretary of the Department.
                                                                   F
      22. Mr. Dinesh Dwivedi, learned senior counsel would also
contend that approval order passed under Section 102(1) and
(2) was not required to be published in the Official Gazette. He
invited our attention to Section 68-E of 1939 Act and Sections
                                                                   G
3.    (1974) 2 sec 831.
4.   (1967) 3 SCR 329.
5.   (1970) 1 sec 443.
6.   AIR 1959 SC 308.
7.   AIR 1963 SC 1098.                                             H
    556     SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A   100(3) and 102 of 1988 Act to indicate the difference in the
    two provisions. He further submitted that Section 21 of the
    General Clauses Act, 1897 is not at all attracted as the power
    that was sought to be exercised has been expressly provided
    in Section 102 of the 1988 Act.
B       23. While dealing with the effect of the draft proposal dated
  April 16, 1999 and whether the 1993 Scheme superseded the
  1959 Scheme, Mr. Dinesh Dwivedi submitted that there could
  not be operation of two notified schemes in respect of
  Saharanpur-Delhi route and consequently the judgment of this
C Court in Ram Krishna Verma2 has to be read in the light of
  the provisions of law and not in contravention of the provfsions
  of law. Learned senior counsel submitted that the 1959
  Scheme has been superseded by the 1993 Scheme and that
  is what the State Government also understood. He also
D assailed the judgment of the High Court and submitted that writ
  petitions have been dismissed on the grounds contrary to law.
  Learned senior counsel submitted that the appellants have
  been granted permits validly in the year 1989 which have been
  renewed in the year 1994 and the High Court overlooked the
E fact that revocation of permits by virtue of the decision of this
  Court in Ram Krishna Verma2 implied only revocation to the
  extent of only overlapping portion of Delhi-Saharanpur route.
  He, thus, submitted that appellants' permits are valid as far as
  non-notified portion is concerned.
F
       24. Mr. Nagendra Rai, learned senior counsel appearing
  for the appellants in Civil Appeal No. 5951 of 2002 adopted
  the arguments of Mr. Dinesh Dwivedi and submitted that the
  1959 Scheme stood modified by the 1993 Scheme published
  on May 29, 1993 and that for the same route, there could not
G be two approved schemes. He submitted that the approval
  order dated October 11, 1    Ws  by the Hearing Authority is not
  passed by virtue of any delegation of power nor any right of
  appeal is available against the said order and as such the order
  dated October 11, 1999 is a final order of the State
H
   RASID JAVED & ORS. ETC. v. STATE OF U.P. &                 557
           ANR. ETC. [R.M. LODHA, J.]
Government in terms of Section 102 of 1988 Act and required           A
no publication in the Official Gazette.

     25. Mr. P.N. Gupta, learned counsel while adopting the
arguments of Mr. Dinesh Dwivedi and Mr. Nagendra Rai
contended that once the final order of approval was passed on         8
October 11, 1999, the proposal for modification as provided
in Notification dated April 16, 1999 could not have been
cancelled or rescinded as the draft Notification dated April 16,
1999 merged in the final order dated October 11, 1999.
According to him, the proposal for modification of the approved       C
scheme under Section 102 of the 1988 Act and its approval
by the State Government are not legislative in nature and
consequently Section 21 of the General Clauses Act, 1897 has
no application. Learned counsel would submit that even if it be
assumed that the impugned Notification amounts to modify the
approved scheme and Section 21 of the General Clauses Act             D
has application, in that event the impugned Notification dated
April 15, 2000 is vitiated because it has to be issued in the
same manner as provided under Section 102of1988 Act which
 was not done. He also contended that once the modification
 was approved as per order dated October 11, 1999, the                E
 valuable rights accrued in favour of the appellants and that could
 not be taken away except after giving an opportunity of hearing
 and on this ground also the impugned Notification dated April
 15, 2000 is bad in law.
                                                                      F
       26. Mr. Ratnakar Dash, learned senior counsel for the
  State of U.P. and Ms. Garima Prashad, learned counsel for the
  UPSRTC supported the impugned judgment. The thrust of their
  submission is that both approved schemes, namely, the 1959
  Scheme and the 1993 Scheme are effective and in operation           G
  to make the Saharanpur-Delhi route fully nationalized for the
  exclusive operation by the STU and no priva(e operator can
  operate on this route and, therefore, notified route viz;
  (Saharanpur-Delhi route) could not have been modified without
· modifying the 1959 Scheme. Learned senior counsel for the
                                                                      H
    558       SUPREME COURT REPORTS                [2010] 7 S.C.R.


A State as well as counsel for the UPSRTC contended that the
  order of the Hearing Authority after hearing objections of the
  affected parties is a quasi-judicial order and is not the final
  order of the State Government. They contended that it was open
  to the State Government to modify the order of the Hearing
B Authority before publication of the modified scheme. Reliance
  in this connection was placed upon a decision of this Court in
    Afsar Jahan Begum (Smt) And Others v. State Of M.P. And
    Others8 • Learned counsel for the UPSRTC also contended that
    the appellants did not have permits on the route in question
c   either in 1959 or 1986 or even in 1993 and that the permits
    given to the private operators under the draft scheme of 1986
    as well as under the 1993 scheme have been quashed by
    Allahabad High Court and that appellants have no permits at
    all. She submitted that a total of 124 permits have been granted
    to UPSRTC on Saharanpur-Delhi route which are valid till the
0
    scheme remains in force and that the UPSRTC has been plying
    exclusively on the Saharanpur-Delhi route and there is no
    operation by the private operators. Learned counsel for the
    UPSRTC placed reliance upon the decisions of this Court in
  Mysore State Road Transport Corporation v. Mysore State
E Transport Appellate Tribuna/9; C.P. C. Motor Service, Mysore
  v. State of Mysore and Another10; Adarsh Travels Bus Service
  and Anotherv. State of UP. and Others11 and Kamataka State
  Road Transport Corporation v. Ashrafulla Khan And Others 12
  and submitted that no private bus can be allowed to overlap
F fully or partially on nationalized route if there is no mention of
  that in the scheme of nationalization of the said route itself.

    The issue

          27. In light of the contentions outlined above, the core
G
    8.   (1996) 8 sec 38.
    9.   (1974) 2 sec 750.
    10.· AIR 1996 SC 1661.
    11. (1985) 4 sec 557.
H 12. c2002) 2 sec 560.
  RASID JAVED & ORS. ETC. v. STATE OF U.P. &                  559
          ANR. ETC. [R.M. LODHA, J.]
question that falls for consideration is : whether the Notification   A
dated April 15, 2000 is invalid and vitiated by any legal flaw?

      28. Insofar as the factual aspect is concerned, it does not
seem to be in dispute that the permits granted to the appellants
related to routes which overlapped the Delhi-Saharanpur               B
notified route.

Our appraisal

      (A)   The effect of publication of a scheme under Section
             680                                                      c
    29. The expression "route" is defined in Section 2(28-A)
of 1939 Act as follows :

     "S. 2 (28-A) "route" means a line of travel which specifies
     the highway which may be traversed by a motor vehicle            D
     between one terminus and another;"

      30. Chapter IV-A of the 1939 Act makes special provisions
relating to the STUs. Particularly Section 68-C provides for
preparation and publication of scheme of road transport               E
service by an STU. The objections to the draft scheme
published under Section 68-C may be filed under Section 68-
D. Sub-section (2) of Section 68-D provides that the State
Government after considering the objections and hearing the
objectors and the STU may approve or modify the scheme.
Sub-section (3) of Section 68-D provides that the scheme as           F
approved or modified under sub-section (2) shall be published
in the Official Gazette by the State Government and the same
shall then become final and called 'approved scheme'. Once
the scheme has been published under sub-section (3) of
Section 68-D, Section 68-FF imposes restriction on grant of           G
permits in respect of notified area or notified route. From these
provisions, it is apparent that once a scheme is published under
Section 68-D in relation to any area or route or portion thereof,
whether to the exclusion, complete or partial of other persons
                                                                      H
    560     SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A or otherwise, no person other than the STU may operate on the
  notified area or notified route except as provided in the scheme
  itself. In Adarsh Travels Bus Service11, this Court held that a
  necessary consequence to these provisions is that no private
  operator can operate his vehicle on any part or portion of a
B notified area or notified route unless authorized so to do by the
  terms of the scheme itself.

        31. A definite legal position has been crystalised by this
  Court in Mysore State Road Transport Corporation 9 that any
  route or area either wholly or partly can be taken over by a State
C Undertaking under any scheme published, approved and
  notified under the provisions of Chapter IV-A of 1939 Act and
  that if the scheme prohibits private transport operators to
  operate on the notified area or route or any portion thereof, the
  Regional Transport Authority (RTA) cannot either renew the
D permit of such private operators or give any fresh permit in
  respect of a route which overlaps the notified route.

       32. That the scheme framed under Section 68-C of 1939
  Act is a 'law' is settled by a Constitution Bench decision of this
E Court in the case of H. C. Narayanappa and Ors. v. State of
  Mysore and Others13 • This position has been reiterated by this
  Court in Ram Krishna Verma 2 . H.C. Narayanappa 13 also holds
  that the scheme framed under Section 68-C of 1939 Act
  excludes the private operators from notified routes or areas.

F (8) The status of appellants' permits

        33. Insofar as Saharanpur-Delhi route is concerned, it
  became a notified route under the 1959 Scheme. The
  controversy regarding the 1959 Scheme reached this Court
G initially in Jeewan Nath Wahal case wherein a three-Judge
  Bench of this Court upholding the order of the High Court held
  in unambiguous terms that Saharanpur-Delhi route approved
  in the 1959 Scheme stood nationalized to the complete

H   13. (1960) 3 SCR 742.
   RASID JAVED & ORS. ETC. v. STATE OF U.P. &                561
           ANR. ETC. [R.M. LODHA, J.]
 exclusion of private operators except 50 operators against A
 whom it was held not be operative till their objections are heard
 and decided by the Hearing Authority. The decision of this Court
 in Shri Chand1 has been explained in subsequent decision in
 the case of Ram Krishna Verma 2 by holding that nationalization
 of Saharanpur-Delhi route in the 1959 Scheme cannot be said B
  to have been quashed in Shri Chand1 except to the extent of
  50 operators and in any case the decision of a Bench of two-
  Judges in Shri Chand1 cannot have the effect of overruling the
  depision of a Bench of three-Judges in Jeewan Nath Wahal.
  Thi~, Court further held in Ram Krishna Verma 2 that the fresh c
  draft sc.heme published on February 13, 1986 must be
  construed to be in relation to 50 existing operators only. The
  same position was reiterated by this Court in Nisar Ahmad and
  Ors. v. State of U.P. and Ors. 14 and Gajraj Singh and Ors. v.
   State of U.P. & Ors. 15. In Gajraj Singh 15, it was clearly stated 0
  that insofar as Saharanpur-Delhi route is concerned, it shall be
  deemed to have been approved and maintained in terms of this
   Court's decision in Ram Krishna Verma 2 • In light of these
   decisions of this Court, there is no scope of any doubt that
· Saharanpur-Delhi route on its nationalization stood frozen under E
   the 1959 Scheme against everyone except 50 operators. The
   draft scheme published on February 13, 1986 was confined to
   those 50 operators alone and not to other private operators.
   By the 1993 Scheme, Saharanpur-Delhi route stood frozen
   against 50 operators as well. The effect of these two schemes
   (1959 Scheme and 1993 Scheme), thus, has been that the F
   entire Saharanpur-Delhi route became fully nationalized for the
   exclw~ive operation by the STU i.e., UPSRTC and no private
   operator could operate on the said route. As a matter of fact,
   consequent upon decision of this Court in the case of Ram
   Krishna Verma 2 and the settled legal position that RTA cannot G
   either renew the permit of such private operators or give any
   fresh permit in respect of a route which overlaps the notified
   route, the appellants' permits stood cancelled and in any case
  14. 1994 Suppl. (3) sec 460
 1s. c2001) s sec 1s2.                                               H
    562      SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A these permits lost their legal significance and sanctity. In this
  backdrop, the whole exercise undertaken by the State
  Government under sub-section (1) of Section 102of1988 Act
  proposing to modify the 1993 Scheme relating to Saharanpur
  - Delhi notified route was misconceived as the permits
B specified in that Notification did not exist in law. The finding of
  the High Court in the circumstances that the. modification
  proposal dated April 16, 1999 proceeded on the misconception
  that petitioners (appellants herein) were holding permits on the
  concerned route cannot be said to be unjustified. Moreover, in
c the absence of any proposal to modify the 1959 Scheme, the
  modification proposed in the 1993 Scheme vide Notification
  dated April 16, 1999 was meaningless. The contention that the
  1959 Scheme merged in the 1993 Scheme has no merit. It is
  true that 1959 Scheme was approved under 1939 Act and even
  after repeal of 1939 Act by 1988 Act, the State Government
0
  was competent to prepare fresh scheme by following the
  procedure contemplated in Sections 99 and 100 or modify that
  scheme under Section 102 of the 1988 Act but the proposed
  modification published in the Notification on April 16, 1999
  does not seek to modify the 1959 scheme at all. Since the
E Notification dated April 16, 1999 is, ex facie, misconceived and
  meaningless as regards Saharanpur-Delhi route, the
  proc:eedings taken pursuant thereto by the Hearing Authority
  and his decision dated October 11, 1999 also have no legal
  effect.
F
          {C)   Section 102 of the 1988 Act and the extent of
                authority to the Hearing Authority

        34. Chapter VI of the 1988 Act contains special provisions
G relating to the STUs. Section 99 thereof makes a provision for
  preparation and publication of proposal by the State
  Government regarding road transport service of an STU. As per
  sub-section (1) of Section 100, on the publication of such
  proposal, the objections may be filed before the State
  Government within 30 days therefrom. Sub-section (2) of
H
      RASID JAVED & ORS. ETC. v. STATE OF U.P. &                   563
              ANR. ETC. [R.M. LODHA, J.]
-   Section 100 provides that the State Government may approve
    or modify such proposal after hearing the objectors and the
                                                                           A

    representatives of the STU. Sub-section (3) of Section 100
    makes a provision that the scheme relating to the proposal as
    approved or modified under sub-section (2) shall be published
    in the Official Gazette in at least one newspaper in the regional      s
    language circulating in the area or route covered by such
    scheme. On publication of the said scheme in the Official
    Gazette, it becomes final. Section 102 of the 1988 Act
    empowers the State Government to modify the approved
    scheme in the public interest. Since the controversy relates to        c
    this Section, it is appropriate that we reproduce Section 102
    of the 1988 Act as it is. The said Section reads thus:

        · "S.102. Cancellation or modification of scheme.- (1) The
          State Government may, at any time, if it considers
          necessary, in the public interest so to do, modify any           D
          approved scheme after giving -

          (i)    the State transport undertaking; and

          (ii)   any other person who, in the opinion of the State         E
                 Government, is likely to be affected by the
                 proposed modification,

         an opportunity of being heard in respect of the proposed
         modification.
                                                                           F
         (2) The State Government shall publish any modification
         proposed under sub-section (1) in the Official Gaz.ette and
         in one of the newspapers in the regional languages
         circulating in the area in which it is proposed to be covered
         by such modification, together with the date, not being less      G
         than thirty days from such publication in the Official Gazette,
         and the time and place at which any representation
         received in this behalf will be heard by the State
         Government."

         35. A close look at Section 102 would make it manifestly          H
    564     SUPREME COURT REPORTS                 [2010] 7 S.C.R.

A clear that modification of the approved scheme may be done
   by the State Government in the public interest after giving
                                                                        ---
   opportunity of being heard in respect of proposed modification
   to the STU and the persons likely to be affected by the proposed          r
   modification. The modification proposed is required to be
                                                                        ·.
B published in the Official Gazette and in one of the newspapers
   in the regional languages circulating in the concerned area
   under Section 102(2). On behalf of the appellants, it was
   contended that in the proposed modification published in the
   Official Gazette on April 16, 1999, the authority to hear the
c objections/representations was given to Shri Zamirruddin,
   Special Secretary and Additional Legal Remembrancer and
   the said Hearing Authority after hearing the objections of the
   affected persons and the UPSRTC approved the proposed
   modification and rejected the objections received in this regard
   and the approval by the Hearing Authority of the proposed
0
   modification by his order dated October 11, 1999 is the
   approval of the State Government. Is the order dated October
   11, 1999 of the Hearing Authority approving the proposed
   modification published in the Official Gazette dated April 16,
   1999, an order of the State Government modifying the approved
E scheme of 1993 under Section 102(1) of the 1988 Act? The
   answer has to be in the negative because Shri Zamirruddin was
   given authority to hear the representations received by the State
   Government to the proposed modification but no authority was
   given to him to approve the proposed modification or modify
F the approved scheme. The Notification dated April 16, 1999
   does not empower the Hearing Authority to approve or modify ·
   the scheme; he .has only been empowered to hear the
   objections. That a person who hears must decide and that
   divided responsibility is destructive of the concept of judicial
G hearing is too fundamental a proposition to be doubted. This
  ·settled principle has also been highlighted by this Court in
   Gullapal/i Nageswara Rao6 but based on such principle the
   limited authority of hearing given to the Hearing Authority by the
   State Government cannot be treated as enlarged in its scope.
H A delegatee must confine his activity within four corners of the
             RASID JAVED & ORS. ETC. v. STATE OF U.. P. &           565        ...
                                                                                ~




                     ANR. ETC. [R.M. ·LODHA, J.]

-      powers vested in him and if he has acted beyond that, his
       action cannot have any legal sanction unless ratified by the
                                                                           A


\
:i_.
       delegator.

             36. A distinction must be maintained where the hearing
       authority is empowered by the State· Government to hear             B
       objections and approve the proposed tnodification or modify
       the approved scheme and a case where the hearing authority
       is authorized to hear the objections/representations relating to
       the proposed modification to the approved scheme. In the latter
       case, the authority delegated to the Hearing Authority is limited
       and he is not authorized to approve the proposed modification
                                                                           c
       or modify the approved scheme. The present case falls in the
       latter category and accordingly the order of the Hearing
       Authority dated October 11, 1999 is in excess of the authority
       given to him and cannot be construed as a final order of
       approval under Section 102 (1) of the 1988 Act. Whether such        D
       limited authority of hearing to the Hearing Authority makes any
       legal sense is an aspect for considerati~n by the State
       Government. Suffice, however, to say that it was not open for
       t~e Hearing Authority to approve the proposed modificatio.n or
       modify the proposed scheme.                                         E

                (D)   Invocation of Section 21 of General Clauses Act :
                      whether valid

             37. Having already held that the order of the Hearing
                                                                           F
       Authority dated October 11, 1.999 is in excess of the authority
       given to him and that the said order has no legal effect, we do
       not find that there was any impediment for the State Government
       in exercising its power under Section 102 of the 1988 Act read
       with Section 21 of the General Clauses Act, 1897 to rescind
       the Notification dated April 16, 1999:                              G

         '
               38. Section 21 of the General Clauses Act, 1897 provides
       thus:

               "S.21. Power to issue, to include power to add to, amend,
                                                                           H
    566       SUPREME COURT REPORTS                  [2010] 7 S.C.R


A         vary or rescind, notifications, orders, rules or bye-laws. -
          Where, by any Central Act or Regulation, a power to issue
          notifications, orders, rules, or bye-laws is conferred, then
          that power includes a power, exercisable in the like manner
          and subject to the like sanction, and conditions if any, to
B         add to, amend, vary or rescind any notifications, orders,
          rules or bye-laws so issued."

      39. The aforesaid provision came up for consideration
  before the Constitution Bench of this Court in Kam/a Prasad
C Khetan & Another v. Union of lndia 16 way back in 1957. The
  majority opinion stated:

          "It is to be remembered that S.21 of the General Clauses
          Act embodies a rule of construction, and that rule must
          have reference to the context and subject-matter of the
D         particular statute to which it is being applied .... ".

       40. It seems to be fairly settled that under Section 21 of
  the General Clauses Act, an authority which has the power to
  issue a notification has the undoubted power          to
                                                        r_escind or
E modify the notification in the like manner. In the instant case,
  there is no doubt that the Notification dated April 15, 2000 has
  been made in the same manner as the earlier Notification dated
  April 16, 1999. Since the order of the Hearing Authority dated
  October 11, 1999 is not an order of approval under. Section
  102(1) of the 1988 Act and cannot be treated as such, the
F power of the State Government to rescind the Notification dated
  April 16, 1999 did not get exhausted. The argument that the
  draft Notification-dated April 16, 1999 merged in the order
  dated October 11, 1999 is fallacious and devoid· of any
  substance.
G
       41. Mr. Dinesh Dwivedi, learned senior counsel urged 9n
  behalf of ttie appellants that even otherwise the material on
  record demonstrated that the order of the modification dated
  October 11, 1999 was approved by the Principal Secretary of
H 16. AIR 1957 SC 676.
   RASID JAVED & ORS. ETC. v. STATE OF U.P. &                 567
           ANR. ETC. [R.M. LODHA, J.]

  the Department and, thus, there was an approval by the State        A
  Government. We are unable to accept this submission. In the
  first place, except the decision of the Hearing Authority dated
  October 11, 1999 there is nothing on record to conclude that
  the State Government had approved the proposed modification
  as notified on April 16, 1999. Secondly, even if we assume that     8
  an executive action not expressed to be made in the name of
  the Governor as contemplated under Article 166(1) of the
· Constitution may not vitiate such action as nullity and as held
  by this Court in Dattatraya Moreshwar Pangarkar v. The State
  of Bombay and Others17 the non-compliance with the provisions       C
  of either of clauses of Article 166 would lead to the result that
  order in question would lose the protection which it would
  otherwise enjoy had the proper mode for expression and
  authentication been adopted, but then there has to be some
  formal order by the State Government under Section 102(1 )'Of       D
  the 1988 Act. Moreover, there is nothing on record even to
  indicate that the order dated October 11, 1999 of the Hearing
  Authority was communicated to the appellants or any of the
  affected parties. For all these reasons, the only conclusion that
  can be drawn is that the order dated October 11, 1999 is not
  an order as contemplated under Section 102 (1) of the 1988          E
  Act by the State Government approving the modification
  proposed in the Notification dated April 16, 1999.

     42. In view of our finding that the order of the Hearing
Authority dated October 11, 1999 cannot be treated as an              F
order of the State Government under Section 102(1) of the 1988
Act, it is not necessary to consider the question as to whether
the order of the State Government under Section 102(1) of the
1988 Act is required to be published in the Official Gazette or
not.                                                                  G
     43. The contention of Mr. P.N. Gupta, learned counsel for ,,
 some of the appellants that the opportunity of hearing was
 required to be given to the appellants before issuance of
                                                       1
                                                   /
17. (1952) 1 SCR 612.
                                                                      H
   568      SUPREME COURT REPORTS                [201 O] 7 S.C.R.

A ·Notification dated April 15, 2000 has no merit for more than
   one reason. For one, this contention is founded on the premise
   that the order of the Hearing Authority dated Octo~E!r 11, 1999
   is the order of the State Government. Secondly, what Section
   21 of the General Clauses Act requires is that the authority
                                                                     ..
                                                                     •


8  empowered      to issue notification must exercise its power to
   rescind such notification in the like manner. We have already
   noticed in the preceding discussion that the Notification dated
   April 15, 2000 has been made in the same manner as the
   earlier Notification dated April 16, 1999.

C Conclusion
       44. For the reasons given abov~. we hold that the
  Notification dated April 15, 2000 is valid and does not suffer.
  from any legal flaw and, accordingly, dismiss these appeals-with
o no order as to costs. Interlocutory applications for impleadment
  stand disposed of, as indicated above.
    N.J.                                     Appeals dismissed.