K. S. LODHA, J. - (1.) PETITIONER Sardar Mohammad has challenged the draft scheme published under Section 68-C of the Motor Vehicles Act, 1939 (for short 'the Act of 1939') for the route Kishangarh to Sarwad on November 30, 1987.
(2.) I have heard learned counsel for the petitioner as also Mr. Munshi appearing for non-petitioner no, 2. Two contentions have been raised before me by the learned counsel for the petitioner. His first contention is that though the scheme had been printed on November 30, 1987 in the official Gazette, it cannot be deemed to be the date of its publication because it has been held in R. S. R. T. C. V. Daudaval (D. B. Civil Special Appeal No. 210/87, decided on 17. 12. 87) that it is rather impossible that the date of printing and the date of the despatch from the press should be the same, and as the Gazette containing the notification must have been despatched from the press after considerable time the publication cannot be said to be in accordance with law and the scheme must, therefore, be struck down as in R. S. R. T. C. v. Daudayal. That is not the case here. My attention was particularly drawn by the learned counsel to clause (viii) of ground 6 and it has been urged by him that there is specific allegation that the Gazette dated November 30, 1987 was not despatched on that day and must have been despatched, much after November 30, 1987, but I am unable to accept this contention also because in this clause (viii) of para 6 of the grounds, the petitioner has started with the words "as stated above the publication of the aforesaid notification dated 30. 11. 87 is antedated because the date so printed is 30. 11. 87 and the date of despatch from Jaipur is much after 30. 1187" This averment, therefore, cannot be taken to mean to be an averment to the effect that the Gazette was, as a matter of fact, not despatched on 30. 11. 87 and the petitioner merely relies on the presumption already referred to above. It was, then, urged by the learned counsel that the Superintendent, Government Central Press, Jaipur has been made a party to this writ petition and it is for him to file a reply and controvert the allegation. This contention also does not appeal to me. The question of controverting the allegation arises only when there is specific allegation. In the absence of such a specific allegation the Superintendent, Government Central Press, Jaipur need not be called upon to controvert it. The first contention must, therefore fail. The second contention is that the Act of 1939 has been repealed by sec. 217 (1) of the Act of 1988, which came into force on July 1, 1989 and under the exception mentioned in clause (e) of sec. 217 (2), any scheme made under sec. 68c of the Act of 1939 or under the corresponding Saw, if any, in force in any State and pending immediately before the commencement of this Act, shall be disposed of in accordance with the provisions of sec. 100 of the Act of 1988. Sec. 100 (4) of the Act of 1988 reads as under:- " (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. " The contention of the learned counsel for the petitioner, therefore, is that the draft scheme, which was published on November 30, 1987, has not been published on November 30, 1987, has not been published as an approved scheme. although a period of more than one year from the publication of the scheme has already pasted and, therefore, that scheme must be deemed to have lapsed. I do not find force in this contention either. Section 100 of the Act of 1988 by itself relates to the schemes, which are prepared under section 99 of that Act. Under section 100 after the publication of the proposal, objections are invited and after hearing the objectors, the State Government may approve or modify such proposal. Under sub-sec. (3) the draft proposal approved or modified under sub-section (2) has to be published in the Official Gazette by the State Government and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and on such publication, the scheme shall become final on the date of its publication. Then sub-sec. (4) says that if the 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 the publication of the proposal regarding the scheme, the proposal shall be deemed to have lapsed. However, by virtue of clause (e) of sub-section (2) of section 21. 7, the draft schemes made under sec. 68c of the Act of 1939 or under the corresponding law in force in any state and pending immediately before the commencement of this Act, have to be disposed of in accordance with sec. 100 of the Act of 1988. Mr. Vyas contends that when such a draft scheme published under sec. 68c was pending immediately before the commencement of the Act of 1988, it would also be governed by sub-sec. (4) of sec. 100 and if it is not published as an approved scheme within one year from the date of the publication of the draft scheme, the scheme must be deemed to have lapsed and as in this case the draft scheme had been published on Nov. 30,1987 and was pending on July 1,1989, when the Act of 1988 came into force and has not been published as an approved scheme till now and a period of one year from its publication as a draft scheme has already elapsed, this scheme must be deemed to have lapsed. According to me, the contention is a little fallacious. As already stated above, sec. 99 of the Act, 1988 lays down the procedure for the preparation of a draft scheme and sec. 100 thereof lays down the procedure for approving or modifying such proposal and it is in respect of these schemes, which are prepared under sec. 99 that sub-sec. (4) of sec. 100 is applicable. By virtue of clause (e) of sub-s. (2) of s. 217, the same procedure has to be adopted for modification or approval of the schemes which had been published under sec. 68-C of the Act 1939 and which were pending immediately before the commencement of the Act, as it says, such schemes shall be disposed of in accordance with the provisions of sec. 100 of the Act of 1988. Now, while applying the procedure laid down under sec. 100 of the Act of 1988 to the scheme prepa-red and published under sec. 68-C of the Act of 1939, the rigour of sub sec. (4) cannot apply from the date of the" publication of that scheme though those schemes or proposals have to be disposed of in the manner provided under sec. 100 of the Act of 1988; the rigour can apply only from the date of the coming into force of the Act of 1988. in other words, for the purpose of sub-sec. (4) of sec. 100, those draft schemes must be deemed to have been published on July 1, 1988, by a legal fiction, when the Act of 1988 came into force and the actual date of publication of the draft schemes under sec. 68-C, cannot be taken into account because if that is so, it will lead to an anomalous position; for example, if the draft scheme under sec. 68-C of the Act 1939 was published on July 3,1988 and was not published as an approved scheme till August 2,1988, it would automatically stand lapsed on July 3,1988 and there will be no occasion for the applicability of sec. 100 by calling the objections, hearing them and disposing them of. Such could not be the intention of the legislature. I am further supported in this interpretation of sec. 100 (4) read with cl. (e) of sub-sec. (2) of sec. 217 by clause (f) thereof, which says that the permits issued under sub-sec. (1 A) of sec. 68-F of the Act 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 till the approved scheme under Chapter VI of this Act is published. Now if those permits were to live alive till the approved scheme under the Act of 1988 was to be published under sec. 100, it would certainly have taken some time after the coming into force of the Act of 1988 to publish the approved scheme which was a draft scheme under sec. 68-C of the Act of 1939 and the permits issued under sub-sec. (1a) of sec. 68-F would continue till then, but the scheme published under sec. 68-C would stand lapsed even before there is opportunity for publication of the approved scheme under sec. 100 of the Act of 1988. In these circumstances, I am clearly of the opinion that the draft scheme published on November 30,1987 on Kishangarh to Sarwad route cannot be deemed to have lapsed under sub-sec. (4) of sec. 100 of the Act of 1988.
(3.) THE writ petition, therefore, has no force and is, hereby, dismissed. .;