PETITIONER: B. RAJAGOPALA NAIDU Vs. RESPONDENT: STATE TRANSPORT APPELLATE TRIBUNAL & ORS. DATE OF JUDGMENT: 05/03/1964 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. AYYANGAR, N. RAJAGOPALA SIKRI, S.M. CITATION: 1964 AIR 1573 1964 SCR (7) 1 CITATOR INFO : RF 1966 SC1366 (1,4,6,7) R 1969 SC 48 (10) R 1970 SC1241 (6) R 1972 SC2250 (14,15,16,19,20) R 1974 SC1117 (4) R 1974 SC2297 (5) R 1977 SC 416 (3) ACT: Motor Vehicles Act, 1939 (4 of 1939), s. 43A (as inserted by Madras Amending Act 20 of 1948) Madras G.O. No. 1298, dated April 28, 1956-Government order prescribing the award of marks-If direction to Regional Transport Authority in the discharge of its quasi-judicial function-Section 43A-Scope of--if authorises only administrative directions. HEADNOTE: The appellant is a bus operator in the State of Madras. On an invitation for applications for the grant of two stage carriage permits he submitted his applications along with many others. The State Transport Authority considered the merits of the application awarding marks in accordance with the principles prescribed by Madras G.O. No. 1298, dated April 28, 1956 issued under s. 43A of the Motor Vehicles Act, 1939 inserted by the Madras Amending Act 20 of 1948. The Transport Authority on this basis granted the two permits to the appellant. Against this order a number of appeals were filed by some of the unsuccessful applicants including respondents Nos. 2 and 3 in the present appeal. The Appellate Tribunal re-allotted marks in accordance with the above G.O. and respondents 2 and 3 having secured the maximum number of marks were granted the permits. On the rejection of a petition under Art. 226 of the Constitution and after appealing without success to a Division Bench the appellant applied for a certificate to appeal to this Court which rejected. The present appeal was filed on special leave granted by this Court. It was contended on behalf of the appellant before this Court that since Madras G.O. No. 1298, dated April 28, 1956, purports to issue direction to the Transport Authority in the discharge of its quasi-judicial functions it is beyond the powers conferred by s. 43A of the Motor Vehicles Act which authorises only the issue of directions to the said authority in the discharge of its administrative functions and therefore it is bad. Held, (i) Section 43A confers power on the State Government to issue orders and directions to the State Transport Authority only in relation to its administrative functions. M/s. Raman and Raman v. The State of Madras [1959] 2 S.C.R. 227, relied on. (ii)It is well settled that ss. 47, 48, 57, 60, 64 and 64A deal with quasi-judicial functions and when the transport authorities are dealing with applications for permits and evaluating the respective claims of the parties, the transport authorities are discharging quasi-judicial functions and their orders are quasi-judicial orders subject to the jurisdiction of the High Court under Art. 226. L/P(D)1SCI-1 2 New Prakash Transport Co. Ltd. v. Suwarna Transport Co. Ltd. [1957] S.C.R., 98 M/s Raman and Raman Ltd. v. State of Madras, [1959] 2 S.C.R. 227, B. Abdulla Rowther v. State Transport Appellate Tribunal, Madras, A.I.R. 1959, S.C. 896, relied on. (iii) In interpreting s. 43A it is legitimate to assume that the legislature intended to respect the basic and elementary postulate of the, rule of law that in exercising their authority and discharging their quasi-judicial functions, the tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgement. It is of the essence of fair and objective administration of law that the decision of judges or tribunals must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. (iv) The impugned order is outside the purview of s. 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the tribunals constituted under the Act and which have to be dealt with by them in quasi-judicial manner. (v) The decision of the appellate Tribunal is solely based on the provisions of the impugned order and since the said order is invalid, the decision is also bad. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 19 of 1964.
Appeal by special leave from the judgment and order dated
October 29, 1963, of the Madras High Court in Writ Appeal
No. 214 of 1962.
S. Mohan Kumar amagalam, M. N. Rangachari, R. K. Garg, M.
K. Ramamurthi, for the appellant.
R. Ganapathy Iyer, for respondents Nos. 2 and 3.
A. Ranganadham Chetty and A. V. Rangam, for respondent No.
4.
M. C. Setalvad, N. C. Krishna Iyengar and 0. C. Mathur,
for Intervener.
March 5, 1964. The judgment of the Court was delivered by-
GAJENDRAGADKAR, C.J.-The short but important point of law
which has been raised for our decision in this appeal by
special leave is whether G.O. No. 1298 issued by the Gov-
ernment of Madras on April 28, 1956 in exercise of its
powers conferred by s. 43A of the Motor Vehicles Act, 1939
(Central Act IV of 1939) (hereinafter called the Act)
inserted by the Madras Amending Act 20 of 1948, is valid.
Mr. Mohan Kumaramangalam who appears for the appellant
contends that the impugned Government order is invalid for
the simple reason that it is outside the purview of s. 43A.
The impugned order was issued as early as 1956 and since
then, its validity
3
has never been impeached in judicial proceedings. Litiga-
tion in regard to the grant of permits under the relevant
provisions of the Act has figured prominently in the Madras
High Court in the form of writ petitions invoking the said
High Court’s jurisdiction under Art. 226 of the Constitution
and several aspects of the impugned order have come to be
examined. The echoes of such litigation have frequently
been heard in this Court and this Court has had occasion to
deal with the impugned order, its character, its scope and
its effect-, but on no occasion in the past, the validity of
the order appears to have been questioned. The legislative
and judicial background of the order and the course of
judicial decisions in regards to the points raised in the
enforcement of this order would prima facie and at the first
blush suggest that the attack against the validity of the
order may not be wellfounded and that would tend to make the
initial judicial response to the said challenge more
hesitant and reluctant. But Mr. Kumaramangalam contends
that s. 43A under which the order purports to have been
passed would clearly show that the said order is outside the
purview of the authority conferred on the State Government
and is therefore invalid. It is obvious that if this
contention is upheld, its impact on the administration of
the system adopted in the State of Madras for granting
permits under the Act would be very great and so though the
question lies within a narrow compass, it needs to be very
carefully examined. The facts which lead to the present
appeal conform to the usual pattern of the permit litigation
in which the grant or refusal to grant a permit is chal-
lenged under the writ jurisdiction of the High Court under
Art. 226.
The appellant B. Rajagopala Naidu is a bus operator in the
State of Madras and he runs a number of buses on various
routes. On June 26, 1956, the State Transport Authority by
a notification invited applications for the grant of two
stage carriage permits on the route Madras to Krishnagiri.
The buses on this route were to be run as express service.
The appellant and 117 bus operators including respondents 2
and 3 D. Rajabahar Mudaliar, proprietor of Sri
Sambandamoorthy Bus Service and K. H. Hanumantha Rao,
proprietor of Jeevajyoti Bus Service respectively, submitted
applications for the two permits in question. The State
Transport Authority considered the said applications on the
merits. In doing so, it proceeded to award marks in
accordance with the principles prescribed by the impugned
order and came to the conclusion that the appellant
satisfied the requirements enunciated by the State Transport
Authority for running an efficient bus service on this long
route, and so, it granted the two permits to the appellant
on May 8, 1958.
L/P(D)1SCI-1(a)
4
Against this decision, 18 appeals were preferred by the
unsuccessful applicants including respondents 2 and 3. All
these appeals were heard together by the State Transport Ap-
pellate Tribunal, Madras in June 1959. It appears that
before the appeals were thus heard, the State Government had
superseded the principles enunciated in the order in so far
as they related to the grant of stage carriage permits and
had issued another direction under s. 43A known as G.O. 2265
on August 9, 1958. Incidentally, it may be added that by
this order, different criteria had been prescribed for
selection and a different marking system had been devised.
The Appellate Tribunal considered the claims of the rival
bus operators and allotted marks in accordance with the
principles laid down by the earlier order. As a result,
respondents 2 and 3 secured the highest marks and their
appeals were allowed, the order under appeal was set aside
and two permits were granted to them. This order was passed
on July 4, 1959.
The appellant then invoked the jurisdiction of the Madras
High Court under Art. 226 of the Constitution by this writ
petition No. 692 of 1959. In his writ petition the ap-
pellant challenged the validity of the order passed by the
Appellate Tribunal on several grounds. One of them was that
the impugned order on which the decision of the Appellate
Tribunal was based, was invalid. This plea along with the
other contentions raised by the appellant failed and the
learned Single Judge who heard his writ petition dismissed
the petition, on October 18, 1962. The appellant then
challenged the correctness of this decision by a Letters
Patent Appeal No. 214 of 1962 before a Division Bench of the
said High Court. The Division Bench, however, agreed with
the view taken by the Single Judge and dismissed the Letters
Patent Appeal preferred by the appellant. The appellant
then moved the said High Court for leave, but failed to
secure it, and that brought him here with an application for
special leave which was granted on November 14, 1963. It is
with this special leave that the appellant has brought this
appeal before us for final disposal.
Before dealing with the points raised by the appellant, it
is necessary to consider the background of the impugned
order, and that takes us to the decision of the Madras High
Court in Sri Rama Vilas Service Ltd. v. The Road Traffic
Board, Madras, by its Secretary(1). In that case, the
appellant had challenged the validity of a Government order
No. 3898 which had been issued by the Madras Government on
December 9, 1946. This order purported to direct the
transport authorities to issue only temporary permits as the
Government intended to nationalise motor transport.
Accordingly, instruction No. 2 in the said order had
provided that when
(1) (1948) 1 M.L.J. 85.
5
applications were made for new routes or new timings in
existing routes, then small units should be preferred to old
ones. In accordance with this instruction, when the
application for permit made by the appellant, Sri Rama Vilas
Service was rejected, the order stated that it so rejected
in the interests of the public generally under s. 47(1)(a)
of the Act. The appellant preferred ,-in’ appeal against
the order to the Central Board namely the Provincial
Transport Authority which had been constituted by the
Government under s. 44 of the Act. His appeal failed and
so, he moved the Madras High Court under s. 45 of the
Specific Relief Act for an order directing the respondent-
the Road Traffic Board, Madras–to consider the application
of the appellant in accordance with the provisions of the
Act and the rules made thereunder for renewal of the permit
for plying buses. The High Court held that G. O. No. 3898
was in direct conflict with the proviso to s. 58 sub-s. (2)
of the Act, and so, was invalid. This decision showed that
there was no authority or right in the State Government to
issue instructions such as were contained in the said
Government order. In reaching this decision, the High Court
emphasised the fact that the Central Transport Board and the
Regional Transport Board were completely independent of the
Government except that they must observe the notifications
made pursuant to s. 43 of the Act. It was conceded that if
and when the Government acted as an Appellate Tribunal, it
had judicial functions to discharge. But these functions
did not include the power to give orders to any Board which
was seized of an application for renewal of permits. That
is how it was established by this decision that as the Act
stood, the State Government had no authority to issue
directions as to how applications for permits or their
renewal should be dealt with by the Tribunals constituted
under the Act. This judgment was pronounced on November 19,
1947.
As a result of this judgment, the Madras Legislature amended
the Central Act by Act XX of 1948 which came into force on
December 19, 1948. Amongst the amendments made by this Act
was the insertion of s. 43A with which we are concerned in
the present appeal. This section clothed the State
Government with powers to issue certain directions and
orders. As we have already indicated, the point which we
are, considering in the present appeal is whether the
impugned order falls within the purview of the power and
authority conferred on the State Government by this section.
We will read this section later when we address ourselves to
the question of its construction.
The amendment of the Central Act led to the next round of
controversy between the bus operators and the State Gov-
ernment and that resulted in the decision of the Madras High
6
Court in C.S.S. Motor Service Tenkasi v. The State of Madras
and another(1). In that case, the validity of several
provisions of the Act including the provisions introduced by
the Madras Amendment Act were challenged. It will be
recalled that at the time when this challenge was made, the
Constitution had come into force and the appellant C.S.S.
Motor Service urged before the High Court that under Art.
19(1)(g) it had a fundamental right to ply motor vehicles on
the public pathways and the impugned provisions of the Act
invaded its aforesaid fundamental right and were not
justified by Art. 19(6). The High Court elaborately
considered the first part of the contention and it took the
view, and we think rightly, that a citizen has a fundamental
right to ply motor vehicles on the public pathways for hire
or otherwise and that if any statutory provision purports or
has the effect of abridging such fundamental right, its
validity would have to be judged under the relevant clause
of Art. 19. Proceeding to deal with the dispute on this
basis, the High Court examined the validity of the several
impugned provisions of the Act. In regard to s. 43A, the
High Court came to the conclusion that the said section was
valid though it took the precaution of adding that the
orders passed thereunder might be open to challenge as
unconstitutional. It is, however, necessary to emphasise
that the main reason which weighed with the High Court in
upholding the validity of this section was that the High
Court was satisfied that the said section was “intended to
clothe the Government with authority to issue directions of
an administrative character.” Thus, s. 43A was held to be
valid in this case and the correctness of this conclusion is
not disputed before us. In other words, we are dealing with
the appellant’s challenge against the validity of the
impugned order on the basis that s. 43A itself is valid.
This judgment was pronounced on April 25, 1952.
Some years after this judgment was pronounced, the impugned
Government order was issued on April 28, 1956. This order
purported to issue instructions or directions for the
guidance of the Tribunals constituted under the Act. In
fact, it refers to the judgment of the Madras High Court in
the case of C.S.S. Motor Service. It would appear that the
Madras Government wanted to give effect to the said decision
by issuing appropriate directions under its authority
derived from s. 43A which was held to be valid. The
impugned order deals with five topics. The first topic has
relation to the instructions which had to be borne in mind
whilst screening the applicants who ask for permits. This
part of the order provides that the applicants may be
screened and disqualified on one or more of the principles
enunciated in cls. 1 to 4 in that part. The second part
deals with the system of assigning marks to
(1) A.L.R. (1953) Mad. 304.
7
the several claimants, under four columns. In laying down
these
principles, the impugned order intended to secure precision
in the disposal of claims for permits and to enable quick
consideration of the merits of such claimants. This part of
the order, however, made it clear that in cases where the
system of marking worked unfairly the Regional Transport
Authority may ignore the marks obtained for reasons to be
stated. It is this’ part of the order which has introduced
the marking system which has been the special feature of
adjudication of claims for permits in the State of Madras.
These two parts are described as “A.” in the Government
order. Part 3 deals with the variation, or extension of
routes granted under the permits. Part 4 deals with the
revision of timings and Part 5 has reference to suspension
or cancellation of permits. That in brief is the nature of
the directions issued by the impugned order.
After this order was issued and the Tribunals constituted
under the Act began to deal with applications for permits in
accordance with the principles prescribed by it, the
decisions ,of the said Tribunals came to be frequently
challenged before the Madras High Court and these disputes
have, often been brought before this court as well. In
these cases, the character of the order passed by the
Tribunal was examined, the nature of the instructions issued
by the impugned order was considered and the rights of the
parties aggrieved by the quasi-judicial decisions of the
tribunals also fell for discussion and decision. A question
which was often raised was whether it was open to a party
aggrieved by the decision of the Tribunal to contend that
the said decision was based either on a misconstruction of
the impugned order or in contravention of it, and the
consensus of judicial opinion on this part of the
controversy appears to be that the proceedings before the
Tribunals constituted under the Act are quasijudicial
proceedings and as such liable to be corrected under Art.
226 of the Constitution. It also appears to be well estab-
lished that the impugned order is not a statutory rule and
has therefore no force of law. It is an administrative or
executive direction and it is binding on the tribunals; it
does not, however, confer any right on the citizen and that
means, that a citizen cannot be allowed to contend that a
misconstruction of the order or its contravention by any
decision of the Tribunal functioning under the Act should be
corrected under Art. 226.
In M/s Raman and Raman Ltd. v. The State of Madras and
others(1), this Court by a majority decision held that s.
43A of the Act as amended by the Madras Amendment Act, 1948
must be given a restricted meaning and the jurisdiction it
conferred on the State Government to issue orders and
directions must be confined to administrative functions. An
order or
(1) [1959] 2 S.C.R. 227.
8
direction made thereunder by the State Government was con-
sequently denied the status of law regulating rights of
parties. and was treated as partaking of the character of an
administrative order. Similarly, in R. Abdulla Rowther v.
The State Transport Appellete Tribunal, Madras and others(1)
this Court held by a majority decision that the orders and
directions issued under s. 43A were merely executive or
administrative in character and their breach, even if
patent, would not justify the issue of a writ of certiorari.
It was also observed that though the orders were executive
and did not amount to statutory rules, they were rules
binding on the transport authorities for whose guidance they
have been issued, but that did not confer any right on the
citizen and so a plea that a contravention of the orders
should be corrected by the issue ,of an appropriate writ was
rejected. Such contravention, it was held, might expose the
Tribunal to the risk of disciplinary or other appropriate
action, but cannot entitle a citizen to make a complaint
under Art. 226. It is necessary to emphasise that in both
these cases no argument was urged that the impugned order
was itself invalid and should have been ignored by the
Tribunals exercising quasi-judicial authority under the
relevant provisions of the Act. The Court was no doubt
called upon to consider the character of the impugned order
and some of the reasons given in support of the conclusion
that the impugned order is administrative or executive seem
to suggest that the said order would, prima facie, be incon-
sistent with the provisions of s. 43A which received a
narrow and limited construction from the court.
Nevertheless, since the point about the validity of the
impugned order was not raised before the court, this aspect
of the question was not examined and the discussion and
decision proceeded on the basis that the impugned order was
valid. Now that the question has been raised before us, it
has become necessary to examine the validity of the impugned
order.
Before proceeding to examine the scope and effect of the
provisions of s. 43A, it is necessary to bear in mind two
general considerations. The first broad consideration which
is relevant has relation to the scheme of the Act in general
and the scheme of Ch. IV in particular. The Act consists
of 10 chapters and deals mainly with administrative problems
in relation to motor vehicles. Chapter 11 deals with
licensing of drivers of motor vehicles. Chapter IIA deals
with licensing of conductors of State carriages and Chapter
III with registration of motor vehicles. Chapter IV is
concerned with the control of transport vehicles and in this
chapter are included the relevant provisions for the
applications for grant of permits, the consideration of
those applications and other allied topics. Chapter IVA
includes the provisions relating to
(1) A.I.R. (1959) S.C. 896.
9
State Transport Undertakings. Chapter V addresses itself to
the construction, equipment and maintenance of motor vehi-
cles, Chapter VI deals with the control of traffic, Chapter’
VII has reference to motor vehicles temporarily leaving or
visiting India, Chapter VIII with the question of insurance
of motor vehicles against third party risks, Chapter IX
prescribes offences, penalties and procedures to try the
offences -and Chapter X contains miscellaneous provisions.
This scheme shows that the hierarchy of transport autho-
rities contemplated by the relevant provisions of the Act is
clothed both with administrative and quasi-judicial
functions and powers. It is well settled that ss. 47, 48,
57, 60, 64 and 64A deal with quasi-judicial powers and
functions. In other words, when applications are made for
permits under -the relevant provisions of the Act and they
are considered ,on the merits, particularly in the light of
the evaluation of the claims of the respective parties, the
transport authorities are exercising quasi-judicial powers
and are discharging quasijudicial functions, and so, orders
passed by them in exercise of those powers and in
discharging those functions are quasijudicial orders which
are subject to the jurisdiction of the High Court under Art.
226, vide New Prakash Transport Co. Ltd. v. New Suwarna
Transport Co. Ltd.(1) and M/s Raman and Raman Ltd. v. The
State of Madras and others(3) and R. Abdulla Rowther v. The
State Transport Appellate Tribunal Madras and others(3) so
that when we examine the question about the validity of the
impugned order, we cannot lose sight of the fact that the
impugned order is concerned with matters which fall to be
determined by the appropriate transport authorities in
exercise of their quasi-judicial powers and in discharge of
their quasi-judicial functions.
The other broad consideration relevant in dealing with the
present controversy is that there are three sets of provi-
sions under the Act which confer legislative, judicial and
administrative powers respectively on the State Government.
Section 67 which confers on the State Government power to
make rules as to stage carriages and contract carriages and
s. 68 which confers power on the State Government to make
rules for the purposes of Ch. IV are obviously legislative
powers, and in exercise of these powers, when the rules are
framed, they become statutory rules which have the force of
law. Naturally, the exercise of these legislative powers is
controlled by the safeguard provided by s. 133 of the Act.
This latter section requires that when power is exercised by
the State Government to make rules, it is subject to the
condition that the rules must be previously published before
they are
(1) [1957] S.C.R. 98 p. 118. [1959] 2 S.C.R. p. 227.
A.I.R. (1959) S.C. 896.
10
made. That is the effect of s. 133(i). Sub-cl. (2) of s.
133 provides that all rules made under this Act shall be
published in the Official Gazette after they are made and
shall, unless some later date, is appointed, come into force
on the date of such publication. Clause 3 is important. It
provides that all rules made under the Act shall be laid for
not less than fourteen days before the appropriate
Legislature as soon as possible after they are made, and
shall be subject to such modifications as the appropriate
Legislature may make during the session in which they are so
laid. So that if statutory rules are made by the Government
in exercise of legislative powers conferred on it by ss. 67
and 68, they are subject to the control of the appropriate
legislature which can make changes or modifications in the
said rules if it is thought necessary or expedient to do so.
Publication before the rules are made and publication after
they are made also afford another statutory safeguard in
that behalf. That is the nature of the legislative power
conferred on the State Government.
Section 64A confers judicial power on the State Transport
Authority, because the said authority is given revisional
jurisdiction to deal with orders therein specified, subject
to the limitations and conditions prescribed by the two
provisos to the said section.. This is a clear provision
conferring judicial power on the State Transport Authority.
Along with the legislative and judicial powers which have
thus been conferred, there is the administrative power con-
ferred on the State Government by s. 43A. Section 43A reads
thus:
,,The State Government may issue such orders and directions
of a general character as it may consider necessary, in
respect of any matter relating to road transport, to the
State Transport Authority or a Regional Transport Authority;
and such Transport Authority shall give effect to all such
orders and directions”.
It is the construction of this section which is the basis of
the challenge to, the validity of the impugned rules in the
present appeal. It may be conceded that there are some
words in the section which are against the construction for
which Mr. Kumaramangalam contends. The words “in respect of
any matter relating to road transport” are undoubtedly wide
enough to take in not merely administrative matters but also
matters which form the area of the exercise of quasi-
judicial authority by the Tribunals constituted under the
Act. Prima facie, there are no words of limitation in this
clause and it would, therefore, be possible to take the view
that these are matters which are scrutinised by the
appropriate authorities in exercising their quasi-judicial
jurisdiction. Similarly, the State Transport Authority and
the Regional Transport
11
Authority to which reference is made in this section are
clothed not only with administrative power but also with
quasijudicial jurisdiction so that reference to the two
authorities and reference to any matter relating to road
transport would indicate that both administrative and quasi-
judicial matters come within the sweep of s. 43A.
But there are several other considerations which support Mr.
Kumaramangalam’s construction. The first is the setting and
the context of the section. As we have already seen, this
section has been introduced by the Legislature in response
to the decision of the Madras High Court in C.S.S. Motor
Service case(1) and that would indicate that the Madras
Legislature intended to confer on the State Government power
to issue administrative orders or directions of a general
character. Besides, the two preceding sections s. 42 and s.
43 and s. 44 which follows support the argument that the
field covered by s. 43A like that covered by ss. 42, 43 and
44 is administrative and does not include the area which is
the subjectmatter of the exercise of quasi-judicial
authority by the relevant Tribunals.
Then again, the use of the words ‘orders and directions’
would not be appropriate in regard to matters which fall to
be considered by authorities exercising quasi-judicial
powers. These words would be appropriate if they have
reference to executive matters.
And lastly, the provision that the relevant transport
authority shall give effect to all orders and directions
issued under s. 43A would be clearly inappropriate if the
instructions issued under the said section are meant for the
guidance of quasi-judicial bodies. If the direction is
issued by the appropriate Government in exercise of its
powers under s. 43A and it is intended for the guidance of a
tribunal discharging its quasi-judicial functions, it is
hardly necessary to say that the authority shall give effect
to such directions. Section 43A being valid, if the orders
and directions of a general character having the force of
law can be issued within the scope of the said section, then
such orders or directions would by themselves be binding on
the transport authorities for whose guidance they are made;
and it would be superfluous to make a specific provision
that they are so binding. On the other hand, if the orders
and directions are in the nature of administrative orders
and directions, they do not have the force of statutory
rules and cannot partake of the character of provisions of
law, and so, it may not be inappropriate to that the said
orders and directions shall be followed by the appropriate
tribunals. Therefore, it seems to us that on a fair and
Leasonable construction of s. 43A, it ought to be held that
the said section authorises the State Government
-.R. [1931] Mad. 304
12
to issue orders and directions of a general character only
-tin respect of administrative matters which fall to be,
dealt with by the State Transport Authority or Regional
Transport Authority under the relevant provisions of the Act
in their administrative capacity.
In reaching this conclusion, we have been influenced by
certain other considerations which are both relevant and
material. In interpreting s. 43A, we think, it would be
legitimate to assume that the legislature intended to
respect the basic and elementary postulate of the rule of
law, that in exercising their authority and in discharging
their quasi-judicial function, the tribunals constituted
under the Act must be left absolutely free to deal with the
matter according to their best judgment. It is of the
essence of fair and objective administration of law that the
decision of the Judge or the Tribunal must be absolutely
unfettered by any extraneous guidance by the executive or
administrative wing of the State. If the exercise of
discretion conferred on a quasi-judicial tribunal is con-
trolled by any such direction, that forges fetters on the-
exercise of quasi-judicial authority and the presence of
such fetters would make the exercise of such authority
completely inconsistent with the well-accepted notion of
judicial process. It is true that law can regulate the
exercise of judicial powers. It may indicate by specific
provisions on what matters the tribunals constituted by it
should adjudicate. It may by specific provisions lay down
the principles which have to be followed by the Tribunals in
dealing with the said matters. The. scope of the
jurisdiction of the Tribunals constituted by statute can
well be regulated by the statute and principles for guidance
of the said tribunals may also be prescribed subject of
course to the inevitable requirement that these provisions
do not contravene the fundamental rights guaranteed by the
Constitution. But what law and the provisions of law may
legitimately do cannot be permitted to be done by adminis-
trative or executive orders. This position is so well
established that we are reluctant to hold that in enacting
s. 43A the Madras Legislature intended to confer power on
the State Government to invade the domain of the exercise of
judicial power. In fact, if such had been the intention of
the Madras Legislature and had been the true effect of the
provisions of s. 43A, s. 43A itself would amount to an
unreasonable contravention of fundamental rights of citizens
and may have to be struck down as unconstitutional. That is
why the Madras High Court in dealing with the validity of s.
43A had expressly observed that what s. 43A purported to do
was to clothe the Government with authority to issue
directions of an administrative character and nothing more.
It is somewhat unfortunate that though judicial decisions
have always emphasised this aspect of the matter, occasion
did not arise so long
13
to consider the validity of the Government order which on
the construction suggested by the respondent would clearly
invade the domain of quasi-judicial administration.
There is another consideration which is also important. If
s. 43A authorises the State Government to issue directions
or orders in that wide sense, s. 68 would become redundant
and safeguards so elaborately provided by s. 133 while the
State Government purports to exercise its authority under s.
68, would be meaningless. If orders and directions can be
issued by the State Government which are not distinguishable
from statutory rules, it is difficult to see why s. 68 would
have dealt with that topic separately and should have
provided safeguards controlling the exercise of that power
by s. 133.
It is likewise significant that the directions and orders
issued under s. 43A are not required to be published nor are
they required to be communicated to the parties whose claims
are affected by them. Proceedings before the Tribunals
which deal with the applications for permits are in the
nature of quasijudicial proceedings and it would, indeed, be
very strange if the Tribunals are required to act upon
executive orders or directions issued under s. 43A without
conferring on the citizens a right to know what those orders
are and to see that they are properly enforced. The very
fact that these orders and directions have been consistently
considered by judicial decisions as administrative or
executive orders which do not confer any right on the
citizens emphatically brings out the true position that
these orders and directions are not statutory rules and
cannot therefore seek to fetter the exercise of quasi-judi-
cial powers conferred on the Tribunals which deal with
applications for permits and other cognate matters.
It is, however, urged that the principles laid down in the
impugned order are sound principles and no challenge can be
made to the validity of the order when it is conceded that
the order enunciates very healthy and sound principles.
This order, it is argued, can be considered as expert
opinion the assistance of which is afforded by the State
Government to ,he Tribunals dealing with the question of
granting permits. We are not impressed by this argument.
It is not the function of the executive to assist quasi-
judicial Tribunals by issuing directions in the exercise of
its powers conferred under s. 43A. Besides, if s. 43A is
valid and an order which is issued under it does not fall
outside its purview, it would be open to the State
Government to issue a direction and require the Tribunal to
follow that direction unquestionably, in every case. It is
true that in regard to the marking system evolved by the im-
pugned rule, liberty is left to the Tribunal not to adopt
that system for reasons to be recorded by it. This liberty
in practice
14
may not mean much; but even theoretically, if the impugned
order is valid, nothing can prevent the State Government
from issuing another order requiring that the marking system
prescribed by it shall always be followed. We have already
seen that s. 43A itself provides that effect shall be given
to the orders issued under it, and so, if an order issued
under s. 43A itself were to prescribe that it shall be
followed, it will have to be followed by the Tribunal and no
exception can be made in that behalf. Therefore, we cannot
accept the argument strongly pressed before us by Mr.
Ganapathy Iyer on behalf of respondent No. 1 that the
validity of the order cannot be challenged on the ground
that the principles laid down by it are sound and healthy.
We have, therefore, come to the conclusion that the impugned
order is outside the purview of s. 43A inasmuch as it
purports to give directions in respect of matters which have
been entrusted to the Tribunals constituted under the Act
and which have to be dealt with by these Tribunals in a
quasi-judicial manner. We cannot overlook the fact that the
validity of the Act particularly in reference to its
provisions prescribing the grant and refusal of permits, has
been sustained substantially because this important function
has been left to the decision of the Tribunals constituted
by the Act and these Tribunals are required to function
fairly and objectively with a view to exercise their powers
quasijudicially, and so, any attempt to trespass on the
jurisdiction of these Tribunals must be held to be outside
the purview of s. 43A.
We are conscious of the fact that the impugned order was
issued after and presumably in response to the decision of
Madras High Court in the case of C.S.S. Motor Service(1)
though it Would appear that what the High Court had
suggested was presumably the making of the rules under s. 68
of the Act. It cannot also be disputed that the main object
of the State Government in issuing this order was to avoid
vagaries, and introduce an element of certainty and objec-
tivity, in the decision of rival claims made by applicants
in respect of their applications for permits. It may have
been thought by the State Government that if the Tribunals
are allowed to exercise their discretion without any
guidance, it may lead to inconsistent decisions in different
areas and that may create dissatisfaction in the public
mind. It does appear, however, that in some other States
the problem of granting permits has been resolved without
recourse to the marking
15
system. But apart from that, even if it is assumed that
the, marking system, if properly applied, may make the
decisions in regard to the grant of permits more objective,
fair and consistent, we do not see how that consideration
can assist the decision of the problem raised before us If
the State Government thinks that the application of some
kind of marking
system is essential for a fair administration of the Act, it
may adopt such course as may be permissible under the law.
Section 47(1)(a) requires inter alia that the interests of
the public generally have to be borne in mind by the
Regional Transport Authority in considering applications for
stage carriage permits. The said section refers to other
matters which have, to be borne in mind. It is unnecessary
to indicate them for our present purpose. The Legislature
may amend s. 47 by indicating additional considerations
which the Transport Authority has to bear in mind; or the
Legislature may amend s. 47 by conferring on the State
Government expressly and specifically a power to make rules
in that behalf or the State Government may proceed to make
rules under s. 68 without amending s. 47. These are all
possible steps which may be taken if it is thought that some
directions in the nature of the provisions made by the
impugned order must be issued. That, however, is a matter
with which we are not concerned and on which we wish to
express no opinion. As this court has often emphasised, in
constitutional matters it is of utmost importance that the
court should not make any obiter observations on points, not
directly raised before it for its decision. Therefore, in
indicating the possible alternatives which may be adopted if
the State Government thinks that the marking system helps
the administration of the Act, we should not be taken to
have expressed any opinion on the validity of any of the
courses specified.
That leaves only one point to be considered. Mr. Ganapathy
Iyer urged that even though the impugned order may be valid,
that is no reason why the order passed by the Appellate
Tribunal which has been confirmed by the High Court in the
present writ proceedings should be reversed. He argues that
what the Appellate Tribunal has done, is to act upon the
principles which are sound and the fact that these
principles have been enunciated by an invalid order should
not nullify the decision of the Appellate Tribunal itself.
Thus presented, the argument is no doubt plausible; but a
closer examination of the argument reveals the fallacy
under-lying it. If the Appellate Transport Authority had
considered these, matters on its own without the compulsive
force of the impugned order, it would have been another
matter-, but the order pronounced by the Appellate Authority
clearly and unambiguously indicates that it held and in a
sense rightly, that it was bound to follow the impugned
order unless in the exercise of its option it decided to
depart from it and was prepared to record its reasons for
adopting that course. It would, We think, be idle to
suggest that any Transport Authority functioning in the
State would normally refuse to comply with the order issued
by the State Government itself. Therefore,
16
we have no hesitation in holding that the decision of the
Appellate Tribunal is based solely on the provisions of the
impugned order and since the said order is invalid, the
decision itself must be corrected by the issue of a writ of
certiorari.
In the result, we allow the appeal, set aside the order
passed by the High Court in Writ Petition No. 692 of 1959
and direct that the said Writ Petition be allowed. There
would be no order as to costs throughout. In accordance
with this decision a writ of certiorari shall be issued
setting aside the order passed by the Appellate Tribunal and
remanding the matter to the Regional Transport Authority for
disposal in accordance with law.
Appeal allowed
17