PETITIONER: ABDUI, GAFOOR Vs. RESPONDENT: STATE OF MYSORE DATE OF JUDGMENT: 12/04/1961 BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA CITATION: 1961 AIR 1556 1962 SCR (1) 909 CITATOR INFO : R 1962 SC1135 (6) R 1962 SC1183 (16) RF 1963 SC 640 (11) RF 1971 SC1662 (11) F 1971 SC1986 (10) R 1972 SC1674 (8,9) R 1974 SC1940 (6) ACT: Motor Transport--Scheme Published and approved--Permits-- Application for by State Transport Undertaking--Publication of application and notice of date for making representation by other Transport Services, if necessary--Motor Vehicles Act, 1939 (IV of 1939), ss. 68-C, 68-F (1), Ch. IV-A. HEADNOTE: After a scheme 'Was published by the Mysore Transport Undertaking under s. 68-C of the Motor Vehicles Act, 1939, and approved by the State Government the State Transport Undertaking made applications for permits under s. 68-F(1) of the Act to the Regional Transport Authority but before the permits were granted the second respondent made an application for a Writ of Certiorari prohibiting the Regional Transport Authority from dealing with the second respondent's application for permit unless and until they were duly published and notice was given to him for making representations. The contention on his behalf was that the publication of the applications with notice of the (late for submitting the representations was necessary under s. 57(3) Ch. IV of the Act and that lie was entitled to notice as the Regional Transport Authority acted in a quasijudicial capacity while dealing with applications for permits. Held, that when a scheme. prepared and published under s. 68-C has been approved and in application has been made in pursuance of the scheme and in the proper manner as specified in Ch. IV nothing more remains to be decided by the Regional 910 Transport Authority and it has no option to refuse the grant of the permit. The nature of the matter dealt under.s. 68- F(1) is such as does not attract the provisions of S. 57(3) which lays down certain duties on the Regional Transport Authority when it considers an application for a permit. The provisions of S. 57(3) have nothing to do with the matters dealt with by s. 68-F(1). Srinivasa Reddy v. State of Mysore, [1960] 2 S.C.R. 130, referred to. When taking action under, s. 68-F(1) the Regional Transport Authority does not exercise any quasi-judicial function and acts wholly in a ministerial capacity. JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 109 of 1961.
Writ Petition under Art. 32 of the Constitution of India for
enforcement of the Fundamental Rights.
M. O. Setalvad, Attorney-General of India, B. R. L. Iyengar
and K. P. Bhat, for the petitioner.
A. V. Viswanatha Sastri, R. Gopalakrishnan and
T. M. Sen, for the respondents.
1961. April 12. The Judgment of the Court was delivered by
DAS GUPTA, J.–The petitioner, who is the proprietor of the
Shaheen Motor Service, used to ply a motor bus for hire on
the route Archalli to Saravanabelgola in Hassan District in
the State of Mysore. A scheme under s. 68-C of the Motor
Vehicles Act of 1939 having been published by the Mysore
Transport Undertaking, the petitioner as one of the persons
affected thereby filed objections to the scheme before the
State Government under s. 68-D(1) of the Act. The State
Government however after considering the objections a,-id
hearing the petitioner approved the scheme, subject to a
slight modification with which we arc not concerned. This
approval was given on December 22, 1959. In pursuance of
this approved scheme the State Transport Undertaking-the 2nd
respondent before us–made applications for permits but
before the Regional Transport Authority could issue such
permits the present petition was filed praying, in the first
place, for a writ of certiorari to quash the scheme and some
consequential directions, and secondly for a wait of
911
“prohibition” to the Regional Transport Authority, Hassan
District, who is the third respondent before us “to refrain
from dealing with the applications for permit made by the
2nd respondent unless and until they are duly published and
notice thereof is given to the petitioner and he is allowed
to make his representation thereon regarding their
compliance or otherwise with the conditions of s. 68-F(1) of
Chapter IV-A. After learned counsel for the petitioner had
been heard, this Court by its order dated March 21, 1961,
granted leave to the petitioner to amend the writ petition
so as to confine it to the second prayer only and directed a
rule to issue only in respect of this second prayer.
The only question with which we are therefore now concerned
is whether a writ should issue prohibiting, the Regional
Transport Authority, Hassan District, from dealing with the
applications for permits made by the State Transport
Undertaking “unless and until they are duly published and
notice thereof is given to the petitioner and he is allowed
to make his representations thereon”.
The petitioners case as regards this prayer is that under
the law no permit can be granted to the State Transport
Undertaking until the applications for permit have been duly
published and notice has been given to the petitioner of
those applications. In support of this proposition learned
counsel advanced two arguments-firstly, that s. 57(3) in
Chapter IV of the Act, requires such prior publication with
notice of the date before which representations in
connection with the application may be submitted and that in
consequence of s. 68-B of Chapter IV-A the above provisions
of s. 57(3) of Chapter IV have to be followed. The second
argument is that the Regional Transport Authority acts in a
quasi-judicial capacity when dealing with applications for
permits made under s. 68-F and so the petitioner who will be
affected by the issue of the permits is entitled to notice.
Section 68-B on which reliance has been placed provides
inter alia that the provisions of Chapter IV-A
912
shall have effect “notwithstanding anything inconsistent
therewith contained in Chapter IV”. It says nothing
positive as regards any of the provisions of Chapter IV
being applicable to matters under Chapter IV-A but provides
negatively that if any question arises as regards any
provisions of the Act in Chapter IV-A and there is
difficulty in applying it on the ground that there is
conflict between it and some provisions of Chapter IV, the
provisions of Chapter IV-A will prevail. Mr. Iyengar has
argued that it is implicit in this provision that if there
is no such difficulty all the provisions of Chapter IV will
apply to matters dealt with under Chapter IV-A. This
argument, in our opinion, is fallacious. All that s. 68-B
pre-supposes is that there are some provisions in Chapter IV
which may apply to matters under Chapter IV-A; on that
assumption it proceeds to say that if on a matter to which
provisions of Chapter IV would prima facie apply there is a
provision in Chapter IV-A also which appears applicable the
provision in Chapter IV-A will prevail to the extent of its
inconsistency with the corresponding provision in Chapter
IV. As to what provisions in Chapter IV will apply or not
s. 68-B says nothing and provides no guidance either expres-
sly or by implication. To find out whether a particular
provision in Chapter IV (not being inconsistent with any
provisions in Chap. IV-A) will apply or not to a matter
under Chapter IV-A, we have to examine the matter in
question and then decide whether it is of such a nature that
it attracts that particular provision of Chapter IV.
What then is the matter dealt with under s. 68-F(1) with
which we are concerned in the present case? Section 68-F(1)
comes into operation when a scheme has already been approved
by the State Government under s. 68-D(2). In order that the
approved scheme may be implemented the State Transport
Undertaking which is to run and operate. the Transport
Service under the scheme must have a permit from the Regio-
nal Transport Authority. Section 68-F(1) provides that the
State Transport Undertaking will have to apply for a permit
(i) in pursuance of the approved
913
scheme and (ii) in the manner specified in Chapter IV. Once
that is done, the sub-section proceeds to say “‘A Regional
Transport Authority shall issue such permit to the State
Transport Undertaking”, and this “notwithstanding anything
to the contrary contained in Chapter IV.” It appears clear
to us that the provisions of s. 57(3) have nothing to do
with these matters dealt with by s. 68-F(1). Section 57(3)
lays on the Regional Transport Authority certain duties when
it considers an application for a permit. These conditions
are (1) to make the application available for inspection at
the office of the Authority, (2) to publish the application
or the substance thereof in the prescribed manner together
with a notice of the date before which representations in
connection therewith may be submitted and the date and the
time and place at which the application and any representa-
tions, received will be considered. Under s. 68-F(1) as
already mentioned the Regional Transport Authority has no
option to refuse the grant of the permit provided it has
been made in pursuance of the approved scheme and in the
manner mentioned in Chap. IV. The duty of the Regional
Transport Authority on receipt of the application from the
State Transport Undertaking for a permit is therefore to
examine the application for itself to see whether it is in
pursuance of an approved scheme and secondly whether it has
been made in the manner laid down in Chapter IV. This is a
duty which the Regional Transport Authority has to perform
for itself and there is no question of its asking for
assistance from the public or existing permit holders for
Transport Services on the route. Neither the public in
general nor the permit holder has any part to play in this
matter.
The provisions of s. 57(3) for making the application made
under Chapter IV, available for inspection, for publishing
the application or a substance thereof with a notice of the
date by which the representations may be submitted and the
date, time and place when the representations will be
considered are required to enable the Regional Transport
Authority to come to a
115
914
correct conclusion as to whether the application should be
granted or not. An application not made in the manner laid
down in Chapter IV will not be con sidered by the Regional
Transport Authority at all. But the mere fact that it has
been made in the proper manner will not entitle the
applicant to a permit. it is the duty of the Regional
Transport Authority to decide on a consideration of all
relevant matters whether the application should be allowed.
Other operators and even the public have a legal right to
make representations to persuade the Authority not to grant
the permit on the merits of the case. It is for this reason
that there was necessity to make the provisions in sub-
section 3 of s. 57 so that the Regional Transport Authority
may receive every assistance in coming to a proper
conclusion. When however a scheme prepared and published
under s. 68-C has been approved and an application has been
made in pursuance of the scheme and in the proper manner as
specified in Chapter IV nothing more remains to be decided
by the Regional Transport Authority. The nature of the
matter dealt with under s. 68-F(1) is thus such as does not
and cannot attract any of the provisions of s. 57(3).
It may be mentioned here that in Srinivasa Reddy. & Or.3. v.
The State of Mysore & Ors. (1) a question was raised whether
s. 57(3) applied or not to an application made under s. 68-
F(1). The Court considered it unnecessary then to go into
the matter as on the facts of that case it was found that
the application had not been made in the manner provided in
Chapter IV and was actually in breach of s. 57(2) of the Act
and so no permit could be issued on such an application.
The provision in s. 57(2) which was applicable to applica-
tions under s. 68-F is that an application for a permit
shall be made not less than six weeks before the date on
which it is desired that the permit shall take effect or if
the Regional Transport Authority appoints dates for the
receipt of such application on such dates. In that case the
Court held that this provision in s. 57(2) is in reality a
manner of making the
(1) [1960] 2 S. C.R. 130.
915
application and consequently it applied to applications made
under s. 68-F(1). The provisions of s. 57(3) cannot however
be said to have anything to do with the manner of making the
application and the nature of the matter dealt with under s.
68-F(1) is such that provisions of s. 57(3) are not
attracted,
The next argument is that the Regional Transport Authority
functions as a quasi-judicial authority when dealing with an
application made by the State Transport Undertaking under s.
68-F(1). It is said that as under s. 68-F(2) the Regional
Transport Authority may refuse to entertain an application
for renewal of any other permit or cancel an existing permit
or modify in certain matters the terms of an existing
permit, for the purpose of giving effect to the approved
scheme there is a lis between the existing permit holders
and the State Transport Undertaking when an application
under s. 68-F(1) is dealt with.
It appears to us that when deciding what action to take
under s. 68-F(2) the authority is tied down by the terms and
conditions of the approved scheme and his duty is merely to
do what is necessary to give effect to the provisions of the
scheme. , The refusal to entertain applications for renewal
of permits or cancellation of permits or modification of
terms of existing permits really flow from the scheme. The
duty is therefore merely mechanical; and it will be
incorrect to say that there is in these matters any lis
between the existing operators and the State Transport
Undertaking which is to be decided by the Regional Transport
Authority. There is no justification therefore for saving
that when taking action under- s. 68-F(2) the regional
Transport Authority is exercising a quasi-judicial function.
Apart from this it has to be pointed out that action under
s. 68-F(2) is really independent of the issue of the permits
under s. 68-F(1). Once the scheme has been approved, action
under s. 68-F(1) flows from it and at the same time action
under s. 68-F(2) flows from the same scheme. The argument
that the Regional Transport Authority should be held to be
exercising quasi-judicial function in dealing with
applications for permits under s. 68-F(1)
916
because of the action it may take under s. 68-F(2) therefore
fails.
It was next said that when the Regional Transport Authority
issues the permit it can attach to the permit conditions
under s. 48(3) of the Act. Section 48(3) authorises the
Regional, Transport Authority if it decides to grant a stage
carriage permit, to attach to the permit any of the
conditions specified in the subsection. It has to be
noticed that s. 68-F(1) does not speak of the “grant” of a
permit but provides that the Regional Transport Authority
shall “issue” a permit. In any case, if the Regional
Transport Authority has to decide what conditions to attach
to such a permit, it is not possible to say that it is then
exercising a quasi-judicial function. For, in deciding that
matter the Regional Transport Authority is to have regard to
the interests of the public but there is no question because
of that, of any lis between the State Transport Undertaking
on the one hand and the public on the other.
In our opinion, the Regional Transport Authority acts wholly
in a ministerial capacity while dealing with an application
of the State Transport Undertaking under s. 68-F(1). The
fact that on other occasions and in other matters the
Regional Transport Authority has quasi-judicial functions to
perform cannot make its function under, s. 68-F(1) a quasi-
judicial function.
Our conclusion therefore is that the petitioner’s contention
that no permit can be granted to the State Transport
Undertaking until the applications for permit have been duly
published and notices have been given to the petitioner of
these applications is unsound Consequently, the petitioner
is not entitled to any relief.
The petition is dismissed with costs.
Petition dismissed.
917