9911796707
TMI Blog1991 (8) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the Kota-Sangod route. The existing operators as well as the affected operators of the route filed their objections before the hearing authority appointed by the State Government of Rajasthan. The hearing authority after considering those objections approved the scheme under Section 68-D (2) of the old Act by its order dated 30.11. 1984 and submitted the papers to the State Government for the issue of Notification under Section 68--D (3). Before the State Government could issue Notification under Section 68-1) (3) of the old Act, the appellant and other affected operators made representation to the Minister for Transport for affording them a fresh opportunity of hearing. As a result of which no final Notification under Section 68-D (3) could be issued. Meanwhile, the Motor Vehicles Act. 1988 (hereinafter referred to as the new Act) was enforced with effect from 1.7. 1989 and the old Act was repealed. The appellant thereupon filed a writ petition before the High Court under Article 226 of the Constitution for the issue of Mandamus restraining the State Government from issuing the final Notification, mainly on the ground that on the enforcement of the new Act, the Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 984 within five years of the proposal of the scheme but when the matter was placed before the State Government for issue of final Notification Under Section 68-D (3) of the old Act, the appellant and other affected operators approached the Minister for Transport and stalled the issue of final Notification as a result of which delay was caused. The appellant was himself responsible for the delay therefore he is not entitled to complain of the delay. Moreover this Court has not ruled in the aforesaid decisions, or in any other decision that delay would automatically render the scheme illegal. Since under the old Act no time frame was prescribed for finalising a scheme penal consequences could not ensue. Under the old Act a scheme proposed u/s 68 could continue to remain in force till it was quashed. Since the scheme proposed on 11.10.1979 had not been quashed by any Court, the same continued to be in force on the date of commencement of the new Act. In the absence of any provision in the old Act rendering the scheme ineffective on the ground of delay, the scheme proposed u/s 68-C of the old Act could not lapse ipso facto. Moreover, now the State Government has already issued final No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notified area or notified route: Provided that no such scheme which relates to any interState route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government. (4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under sub-section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under sub-section (1), the proposal shall be deemed to have lapsed. Section 100 provides for filing of objections before the State Government within 30 days from the date of the publication of the proposed scheme in the Official Gazette. Under sub-section (2) the State Government may approve or modify the proposed scheme after considering the objections and hearing the objectors. Under sub-section (3) the State Government is required to publish the approved scheme in the Official Gazette and also in one newspaper. On the publication of the approved scheme in the Official Gazette, the area or route to which it relates shall be called the notified area or notified route. Sub-section (4) lays down that if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement of this Act shall be disposed of in accordance with the provisions of section 100 of this Act; (f) the permits issued under sub-section (I-A) of section 68-F of the Motor Vehicles Act, 1939 (4 of 1939), or under the corresponding provisions, if any, in force in any State immediately before the commencement of this Act shall continue to remain in force until the approved scheme under Chapter VI of this Act is published. ................................... Under sub-section (1) the old Act has been repealed but under subsection (2) inspite of repeal the Parliament has made provisions for saving the schemes proposed under Section 68-C of the old Act. Clause (e) of Section 217 (2) of the new Act provides that notwithstanding the repeal of the old Act a scheme proposed under Section 68-C of the old Act, if pending immediately before the commencement of the Act shall be finalised in accordance with the provisions of Section 100 of the new Act. The Legislative intent is clear that the. schemes proposed under Section 68-C. of the old Act pending on the date of the commencement of the new Act should not lapse instead those schemes should be finalised in accordance with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Act with a further direction that the same shall be finalised in accordance with Section 100 of the Act. Sub-section (4) of Section 100 provides that where a scheme is not published as approved under sub-section (3) within period of one year from the date of publication of the proposal in the Official Gazette under sub-section (1), the proposal shall be deemed to have lapsed. A scheme published under Section 68-C of the old Act pending on the date of commencement of the Act could not be a scheme proposed under sub-section (1) of Section 100, therefore, the rigour of period of one year as applicable to a scheme proposed under sub-section (1) of Section 100 could not apply to a scheme under Section 68-C pending on the date of commencement of the Act. It was not meant that a scheme u/s 68-C of the old Act pending on the date of commencement of the new Act may be approved or finalised with leisure without any time limit. There appears to be some apparent conflict between Section 100(4) and Section 217(2)(e) of the Act. While Section 217(2)(e) permits finalisation of a scheme in accordance with Section 100 of the new Act sub-section (4) of Section 100 lays down that a scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be deemed to have lapsed on the date of the enforcement of the new Act in view of the absolute prohibition contained in Section 100(43 of the new Act against the continuance of any scheme after one year. We have gone through the judgment of the Division Bench carefully but in our opinion the view taken by the High Court of Allahabad is unsustainable in law. The learned Judges constituting the Bench failed to notice the legislative intendment under Section 217(4)(e) of the new Act which kept alive the scheme published under Section 68-C of the old Act for the purposes of being finalised under the new Act. We are therefore clearly of the opinion that the view taken by the Allahabad High Court is incorrect. In the instant ease, the appellant had filed a writ petition in May, 1990 and obtained an interim order from the High Court restraining the State Government from publishing the final Notification under Section 100(3) of the new Act. The State Government published the final notification under Section 100(3) of the new Act on 29.8. 1990 after the dismissal of the writ petition by the Division Bench of the High Court. The period of one year with regard to the pending scheme ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
