1. These three writ appeals by respondents 6, 8 and 10 respectively in Writ Petition No. 1379 of 1983 are directed against the order dt. 8-4-1983 of the learned Chief Justice, allowing the said writ petition. The writ petition arose out of certain proceedings under the Motor Vehicles Act, 1939 (the ‘Act’ for short) before the, State Transport Authority (the ‘STA’) in the matter of the prayer of the petitioner for grant of variation in the conditions, of his stage carrier’s permit by way of additional trips with additional vehicles on an inter-State route.
By the sad order the learned Chief Justice set aside the order dt. 25-11-1982 of the ‘STA’ declining the variation sought for, granted petitioner’s application for the variation and directed the ‘STA’ to make the consequential and requisite endorsements on the permit.
Sri Pungappa, petitioner in the writ petition is the common respondent 2 in each of the appeals. The parties will hereinafter be referred to with reference to their array in the writ petition.
2. The relevant and material facts are these :
The Inter-State route concerned in this case is “Bangalore to Dharma varam” (183.4 Km) via Yelahanka, Doddaballapur, Thondebhavi, Gowribidanur, Kudumalakunte, Hindupur, Penukonda, Nagasamudram, Gutti. Kudumulkunte is on Karnataka State border. In the year 1968 Government approved the “Kolar Pocket Scheme” which nationalised the passenger transport services between Bangalore and various places in Kolar District and several routes within Kolar District as specified in the scheme. This Inter-State ‘Bangalore to Dharmavaram’ route overlaps the Kolar Pocket Scheme. Though the scheme is one of total exclusion, existing permit holders operating on the Inter-State route were saved on condition that they should not pick-up and set down passengers on the over lapping portion. Petitioner Pungappa is one such existing operator who holds a permit to operate State Carriage Services on the said inter-State route between Bangalore and Dharmavaram Which is covered by the inter-State agreement at entry No. 87 in Part A of the appendix to the agreement. His permit which had been granted by the ‘STA’ of Karnataka had been duly counter-signed by the ‘STA’ of Andhra Pradesh originally the permit was for one round tried with one vehicle. It was subsequently varied by the inclusion of an addition of one more round trip with one more vehicle exhausting the maximum quota fixed by that entry. As an existing permit holder saved under the scheme he could ask for variation of the conditions of the permit under Section 57 (8) of the ‘Act’ by increasing the number of trips with additional vehicles. This prayer he could make if flow additional quota was permissible under the terms of the inter-State agreement or even outside such agreement in which latter event the question of need would have to be established and the concession of a single tax would also not be available. On 14-1-1980 the petitioner Pungappa made an application under S. 57 (8) of the ‘Act’ for grant of two additional round trips on the same inter-State route “Bangalore and Dharmavaram” with the inclusion of two additional vehicles. The said application was notified under S. 57 (3) in the gazette dt. 24-4-1980 inviting objections.
Respondent No. 6 viz., the ‘KSRTC’, appellant in W. A. 514/83, which is a State undertaking had applied on 10-4-1981 for a new permit on the said inter-State route “Bangalore to Dharmavaram”. The said application was also notified on 14-7-1981 inviting objections.
R. Siddamma, respondent 10 in the writ petition is appellant in W. A. 522 of 1983. She was also an existing operator saved under the scheme. On 19-7-1979 she sought the grant of a fresh permit in respect of the same inter-State route of “Bangalore-Dharmavaram”. That application was also duly notified in the gazette inviting objections.
Sri K. G. Jagannath, respondent 8, who is appellant in W. A. 523 of 1983 is also an existing operator on another inter-State route between “Bangalore and Ananthapur” covered by the inter-State agreement. His route overlaps “Bangalore and Dharmavaram” route for a distance of 106 miles out of 116 miles of the latter. He made an application on 31-8-1979 for grant of two additional round trips from “Bangalore to Ananthapur”. The said application also was notified on 17-9-1979 inviting objections.
3. Another set of facts which requires to be noticed is that petitioner Pungappa aggrieved by what he considered an unreasonable delay in the consideration and dispose of his application dt. 14-9-1980 moved this court in W. P. 12681 of 1981 for a mandamus directing the ‘STA’ to consider and dispose of that application. In that said writ petition the ‘STA’ undertook to consider and dispose of the petitioner Pungappa’s application within three months from 19-7-1982. That submission was recorded and directions issued to the ‘STA’ accordingly.
Similarly, respondent 8, K. G. Jagannath, aggrieved by the delay in the disposal of disposal of his application dt. 31 -8- 1979 for grant of additional trips on the route between Bangalore and Ananthapur moved this Court in Writ. Petition 34927 of 1982 seeking a mandamus to the ‘STA’ to consider and dispose of that application. In the said writ petition, it would appear respondent 8 had also sought a writ of prohibition against ‘STA’ from considering the application of the petitioner Pungappa. That relief was not granted. Even at the stage of preliminary hearing respondent 8 was directed to delete the name of petitioner. Pungappa from the array of parties in the writ petition. That writ petition came to be considered along with certain other writ petitions and was allowed. on 14-10-1981 by Puttaswamy, J. A direction was issued to the ‘STA’ in these terms :
“In the light of my above discussion, I allow these writ petitions. Issue a writ in the nature of mandamus to the respondent to consider and dispose of the applications made by the petitioners along with the rival applications of others for the same route or substantially the same route.” (Underlining supplied)
4. What emerges from the foregoing is that on the date petitioner Pungappa’s application for grant of additional trips was taken up by the ‘STA’ there were other applications preferred by other operators for grant of fresh permits or for additional trips under the existing permits for the same route or substantially the same route. This circumstance assumes materiality in the context of one of the contentions urged by the appellants that as these applications were pending and ripe for consideration when the ‘STA’ took up petitioner Pungappa’s application, the ‘STA’ should have clubbed all these applications and considered them together. Admittedly this was not done by the ‘STA’.
5. The ‘STA’ considered the application of the petitioner Pungappa independently. As a source of this additional quota petitioner claimed that, apart from the inter-State route “Bangalore to Dharmavaram” at entry 87 of part ‘A’ to the appendix to the inter-State agreement dt. 1-9-1975, there was yet another inter-State route “Bangalore to Dharmavaram” covered by the said inter-State agreement at St. No. 153 of appendix to Part-A to the same agreement as published by the Karnataka State. Appellant-objectors, however, contended that though the inter-State agreement as published by the Karnataka Government showed this inter-State route “Bangalore to Dharmavaram” at entry 153 of the Part A of the Appendix to the agreement as one of the inter-State routes reserved for stage-carriage operators of Karnataka, factually no such agreement in that behalf was shown to exist nor any such agreement could be inferred by reason alone of the Karnataka Gazette publication as no corresponding entry, reflecting this position, obtained in the Gazette publication of Andhra Pradesh. The quota under the alleged entry 153 for grant of additional trips was therefore, it was contended, not available within the inter-State agreement.
The ‘STA’ accepted this contention of the objectors and held:
“……….. We have particularly examined this contention and found that the route Bangalore to Dharmavaram with certain provision for operation of Stage Carriage has been included, under the agreement pertaining to Karnataka. But under the corresponding reciprocal agreement published by the Andhra Pradesh Government, this route does not find its entry and hence is non-existent”
“………. In this particular case, as the applicant has applied for grant of additional trips on an inter-State permit under the existing inter-State agreement vide St No. 153 published by the Karnataka Government the non-existence of the route in the published agreement by the Andhra Pradesh Government would amount to non-fulfilment of the conditions stipulated under S. 63 of the M. V. Act, 1939.”
The ‘STA’ accordingly by its order dt. 25-11-1982 rejected the application dt. 14-1-1980 of petitioner Pungappa for grant of additional trips. In view of this conclusion, the STA found it unnecessary to examine and pronounce upon various other contentions urged by the parties before it.
6. Aggrieved by this order of rejection, the petitioner filed Writ Petition 1379 of 1983 from the order in which these appeals arise.
The learned Chief Justice by his order dt. 8-4-1983, now under appeal, allowed the writ petition and held. That the view of the STA as to the effect and consequences of the non-inclusion in the Gazette publication of the Andhra Pradesh . Government of the inter-State route at. S1. No. 153 shown. in Part-A to the appendix to the inter- State agreement dt. 1-9-1975 as published in the Karnataka Gazette was erroneous. The learned Chief Justice was of the view that as the said route found a place at S1. No. 153 in the Gazette publication made by the Karnataka State, the ‘STA’ had the jurisdiction to consider that as a source for grant of additional trips.
In regard to the question of need for the additional trips the learned Chief Justice held that in view of the circumstances that there was an inter-State agreement covering the said inter-State route under entry 153 the, existence of the need did not require to be established separately.
As to relief grantable to the petitioner, the learned Chief Justice did not consider it necessary to remit the matter to the ‘STA’ for a fresh consideration; and granted the additional trips. Learned Chief Justice did not also find any merit in the contentions of the appellants-respondents that while their applications which were in effect for grant or variation of permits respecting the same or substantially the same route, all the applications, including that of petitioner Pungappa, required to be considered together. Learned Chief Justice did not also accept the contention that the writ petition should not be entertained in view of the remedy by way of appeal available under the ‘Act’ against the refusal to grant the, variation of the conditions of the permit.
Pursuant to the order of the learned single Judge dt, 8-4-1983, the ‘STA’ made a consequential endorsement granting the additional trips with additional vehicles.
7. Aggrieved by the order of the learned Chief Justice, respondents 6, 8 and 10 have brought up the present appeals.
We have heard Sri M. Pangaswamy, learned counsel for the appellant KSRTC in Writ Appeal No. 514 of 1983; Sri J. Srinivasalu, learned counsel for the appellant in Writ Appeal No. 522 of 1983 and Sri V.Krishnamurthi learned senior counsel for appellant in Writ Appeal. No. 523 of 1983. Sri S. G. Sundaraswami learned counsel appeared for the petitioner Pungappa who is arrayed as common respondent No. 2 in all the three appeals and addressed arguments. Sri Mandappa, learned Government Advocate for the ‘STA’ made available the records at the hearing. We have been taken through the records of the case, the order of the ‘STA’ as well as that of the learned Chief Justice.
8. The contentions urged in support of these appeals by learned counsel for the appellants admit of being formulated thus:
Point (a) : That in view of the existence of an equally efficacious alternative remedy of appeal under S. 64 (1) (a) of the ‘Act’, petitioner should not be permitted to invoke the extraordinary jurisdiction of this court under Art. 226 of the Constitution.
Point (b) : That in the present case no inter-State agreement covering route at Sl. No. 153 had been established; that the alleged inter-State route at Entry 153 as published in the Karnataka Gazette was one respecting which the permit had to be countersigned by the authorities in the other State viz., Andhra Pradesh and was therefore required, under S. 63 (3-B) to be notified in the Gazette publication of that State and that in view of the admitted omission of this route in the notification published by that State it could not be held that there was an inter-State agreement covering the said route and that, therefore, the application for additional trips could not be considered under the agreement.
Point (c) : That the respondents 6, 8 and 10 were also pending and ripe for consideration; and the omission to club and consider all the applications together was violative of the rules of natural justice; apart from constituting a violation of the specific directions of this Court in. W. P. 34927/ 82; and.
That the order of the learned Chief Justice granting the application ever without a consideration of the claims of other similarly circumstanced applicants would partake of and suffer from the same infirmity.
Point (d) That the order under appeal in granting the additional trips went beyond what the High Court could grant under Art. 226.
9. Re: Point (a) : Sri M. Rangaswamy learned counsel for the ‘KSRTC’, contended that the order impugned in the writ petition was one respecting which an appeal was provided under S. 64 (I) (a) of the ‘Act’; that the ‘Act’ was a self-contained Code which created new rights and remedies and prescribed a procedure for enforcement of those rights and remedies and that having regard to the frame of the writ petition and the nature of the relief sought the prayer in substance was one for issue of a writ of mandamus directing the performance of a statutory duty and that the Court will, as a general rule and in exercise of its discretion refuse the issue of a writ of mandamus when there is a specific remedy at law which is both beneficial and effective.
It is, no doubt, true, that some averments in the memorandum of writ petition are characteristic of and peculiar to a prayer for a writ of mandamus and lend some support to Sri Rangaswamy’s contention. It is also true that in the matter of a petition for mandamus the position in regard to the existence of an alternative remedy as a ground for declining relief is stricter and more exacting than in the case of certiorari. The frame of the petition and the pleadings therein might not be very elegant and appropriately worded. But the petition read as a whole would indicate that petitioner was aggrieved by what, according to him, was a quasi-judicial decision rejecting petitioner’s application in a manner and on grounds which according to petitioner, vitiated it. The prayer in effect, was to have that quasi-judicial decision declared “illegal and improper”.
In our opinion, the refusal of the ‘STA’ to consider the application of the petitioner dehors the inter-State agreement on the grounds set out in the order would show that there is a failure to exercise jurisdiction vested on it besides constitution an error of law apparent on the face of the record. Even where an equally efficacious alternative remedy exists, where, however, fundamental rights are effected where rules of natural justice are violated, or where there is a failure on the part of the authority concerned to confine itself within the bounds of its legitimate jurisdiction or where there is a failure to exercise a jurisdiction vested in it or where there is an error of law apparent on the face of the record a person aggrieved can invoke the extraordinary jurisdiction of this Court under Article 226 without reference to any remedy however equally efficacious it be. The existence of an alternative remedy does not oust the jurisdiction of the High Court under Art. 226. The rule that the Court does not entertain a petition under Art. 226 when there is an equally efficacious alternative remedy is not a rule of law, but is a principle the courts have evolved for the guidance of their own discretion.
“There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute.
That apart, the learned Chief Justice exercised his discretion in entertaining the writ petition. It may not be appropriate for us, in appeal to interfere with that discretion unless it is shown that the exercise of that discretion is arbitrary. An appeal against a discretionary order is an appeal on principle. Appellate Court would not be justified in interfering with the exercise of discretion under appeal on the ground that if it had itself considered the matter if may have declined to exercise the discretion in that way. In the present case we find no grounds to interfere with the exercise of the discretion by the learned Chief Justice.
We accordingly hold and answer point (a) against the appellants.
10. Re : Point (b) : The contention is that petitioner in relation to his application for additional trips cannot draw support from or rest on the interstate agreement dt. 1-9-1975 between the state of Andhra Pradesh and the State of Karnataka. It is urged that there is only one inter-State route “Bangalore-Dharmavaram” covered by Entry 87. The quota under that item is admittedly, exhausted. The route “Bangalore-Dharmavaram” as particularized at Entry 153 in Part-A of the appendix to the inter-State agreement as published by the Karnataka State in its Gazette cannot, in the absence of publication by Andhra Pradesh Government, be said to be covered by the inter-State agreement.
In order that this contention is Put and appreciated in its true perspective, a reference to some statutory provisions is necessary. Section 63 (1) of the ‘Act’ provides:
“Except as may be otherwise Prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned :”
* * *
(provisos omitted as unnecessary)
Section 63 (3) says :
“The provisions of this Chapter relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of countersignatures of permits:
Provided that it should not be necessary to follow the procedure laid down in S. 57 for the grant of countersignatures of permits, where the permits granted in any one State are required to be countersigned by the STA of mother State or by the RTA Concerned as a result of any agreement arrived at between the States, after complying with the requirements of sub-sec (2-A), or for the grant of countersignatures of permits in pursuance of any direction issued by the commission under, Cl (c) of sub-section (2) of S. 63-A.”
Sections 63 (3-A) and 63 (3-B) provide:
“63 (3-A). Every proposal to enter into an agreement between the States referred to in the proviso to sub-section (3) and every proposal in such agreement to fix the number of permits which is ‘Proposed to be granted or counter signed in respect of each route or area shall be published by each of the State Governments concerned in the Official Gazette together with a notice of the date before which presentations in connection therewith may be submitted and the date, not being less than thirty days from the date of such publication on which and the authority by which, and the time and place at which, the I proposal and any representations received in connection therewith will be considered :”
“63 (3-B). Every agreement arrived at between the States shall, in so far as it relates to the grant of countersignature of permits, be published in the Official Gazette by each of the States concerned and the State Transport Authority of the State and the Regional Transport Authority concerned shall give effect to it.”
Section 63 (3-A) sets out the conditions precedent to be fulfilled before the agreement is entered into. It says that every proposal to enter into an agreement and every proposal in such agreement to fix the number of permits which are proposed to be granted or countersigned in respect of each route or area shall be published by each of the State Governments concerned in the Official Gazette together with the notice of the dates for submission of representations and their consideration.
On 1-9-1975 or thereabouts the Government of Karnataka published the agreement in its Gazette. Part-A of the Appendix to that agreement is a statement showing the inter-State routes to be operated by Karnataka operators. The permits in respect of them are to be granted by the authorities of the Karnataka State and countersigned by the authorities in Andhra Pradesh. The Karnataka Gazette publication, apparently shows that there me two inter-State routes. “Bangalore to Dharmavaram covered by the inter-State agreement. One is at entry 87 and the other is at entry 153 of the said Part-A of the Appendix. The publication of this statement is the particular duty enjoined upon the Government of Andhra Pradesh under S. 63 (3-B), as the statement relates to routes respective which permits are required to be countersigned by the authorities in Andhra Pradesh.
Sri Rangaswamy contends that both the existence and the terms of an inter-State agreement are to be gathered only in the manner provided for by sub-secs. (3-A and 3-B). Sub-section (3-A) prescribes the mandatory conditions precedent for the formation of an inter-State agreement, sub-section (3-B) prescribes the mandatory requirements which constitute conditions precedent for its enforceability. Sri Rangaswamy’s contortion is that in the present case so far as inter-State route 153 is concerned neither of the statutory conditions precedent under sub-ss. (3-A) and (3-B) are shown to have been complied with. He contended that if an inter State agreement is reached after due compliance with the requirements of sub-section (3-A) even that, by itself, Would not be sufficient to impart enforceability to the agreement unless the requirements of sub-section (3-B), which he claimed were mandatory, were also complied with. Each of the contracting States, says Sri Rangaswamy, must publish in, its Gazette the details of the proposal including. the particulars of each of the inter-State routes covered by the agreement respecting which the permits have to be countersigned by the authorities of that State and that this publication is a condition precedent for the enforceability of the agreement. It is only by putting, together the two Gazette notifications of the two States that the scope, content and terms of the inter-State agreement relating to the routes which can be said to be agreed upon could be gathered. Sri Rangaswamy contends that the learned Chief Justice erred in apprehending the true scope and significance of Section 63 (3-B) in that the learned Chief Justice, according to Sri Rangaswamy proceeded on the erroneous premise that under section (3-B) both the contracting States were required to cause publication of the whole of the agreement and, in that view, thought that the publication in its Official Gazette by the Karnataka Government of the statement in Part-A of the Appendix was a statutory publication entitled to due weight: It ought to have been noticed, says Sri Rangaswamy, that that statement in the Karnataka Gazette relating as it did to routes respecting which permits were required to be countersigned by the authorities in Andhra Pradesh was required to be published by Andhra Pradesh. The conclusion of the learned Chief Justice, therefore, that there was a statutory publication at the instance of the Karnataka State of the agreement and that that by itself was sufficient to establish the existence of the agreement covering the route at Sl. No. 153 suffers from, an infirmity imparted by that erroneous understanding of the scheme of subsection (3-B). Sri Rangaswamy invited our attention to the following observations of the learned Chief justice.
“Coming to the question of interpretation of S. 63 (3-B) 61 the Act, and the jurisdiction of the authority under the Constitution, that even though a duty is cast upon the respective State Governments to publish the inter-State agreement in the respective official Gazette of each of the States, it is not the jurisdiction of the quasi-judicial authority like the R.T.A. or the STA to give effect to it. Reading the Section as stated by Sri M. Rangaswamy would be reading too much into the Section which would ultimately destroy the very meaning of the Section. Though it is the duty of the State to publish it in the official Gazette, it would not follow, that the STA shall not give effect to it. It is clearly stated in S. 63 (3-B) that the STA of the States concerned shill give effect to it. Hence, it is improper on the part of the STA of Karnataka to reject the application of the petitioner when the agreement is published in Karnataka that merely on the around that corresponding entry is not (sic) found in the Andhra Gazette:” (Underlining supplied)
Sri Rangaswamy says that the above statement of the learned Chief Justice shows that his Lordship was of the view that the agreement in its entirety was required under sub-section (3-B) to be published by each of the States and that if one State had published the agreement in its entirety and in the publication of the other State there was an omission in regard to a particular entry that should not be allowed to be made much of.
11. Sri S. G. Sundaraswamy learned counsel for the petitioner suggested that while dealing with the scope of sub-sections (3-A) and (3-B) we should not miss the relevance and purposes of Section. 63. Sri Sundaraswami says that S. 63 deals with grant of countersignatures and S. 63 (3) requires that procedure for grant of countersignature is the same as is prescribed for an application for grant of a permit and that he proviso to the said sub-section (3) qualifies the position by providing that where 1h6re is an inter-State agreement covering a route that procedure need not be followed.
Sri. Sundaraswami contended that S. 63 is a provision dealing with countersignatures of the permits granted by the authorities of one State by the authorities of the other. The effect of nod-compliance with sub-section (3-B) must, accordingly be confined to that context. According to Sri Sundaraswami if there is an omission to mention this inter-State route in the publication made by the Andhra Pradesh, that circumstance, having regard to the purposes of S. 63 itself, must be confined to the question of countersignature and should not be allowed to affect the proceedings for grant- of permits and should be irrelevant in the matter of grant of permits or variations of its conditions.
Sri Sundaraswami also contended that the requirement of sub-section (3-B) should be treated as merely directory and not mandatory and its non-compliance should not detract from or nullify the inter-Stale agreement.
12. As there was some confusion in regard to the factual position we asked Sri Mandappa, learned Government Advocate, whether this inter-State route “Bangalore to Dharmavaram” particularised at Entry 153 of Part-A of the Appendix to the inter-State agreement dt. 1-9-1975, as published by the Karnataka Government, was included in the proposals published under S. 63 (3-A). Sri Mandappa, after examining the records of the proceedings relational to compliance with S. 63 (3-A), submitted that this inter-State route “Ban galore to Dharmavaram” as included in S1. No. 153 (as distinct from a similar route Bangalore to Dharmavaram, at entry 87) was not included in the proposals as one of the inter-State routes reserved for Karnataka operators. Sri Mandappa could not also show any appendix corresponding to Part ‘A’ as published in the Karnataka Gazette, signed both the representatives of the contracting States. In this state of the matter, it is, indeed, difficult for the petitioner to assert that the said inter-State rotate at Entry 153 really constituted a part of’ the bilateral agreement-between the two States as one of the inter-State routes reserved for stage carriage operators of Karnataka State. It is in this background that the significance of the omission to mention this route in the publication effected under sub-section (3-B) by the Andhra Pradesh State assumes added importance and significance.
13. We may here dispose of the contention of Sri Sundaraswami that noncompliance of the requirements of S. 63 (3-B) should be confined only to the context of grant of counter-signature. In other words what the learned counsel says is that even if as a result of want of compliance with sub-section (3-B), it is to be held that there is no inter-State agreement covering this route at Sl. No. 153, the absence of such agreement is to be taken note of only in the matter of grant of counter-signature and not of grant of -permits or variations in their conditions.
We do not think we can accept this argument, Proviso to sub-section 63 (3) deals with the effect of the existence of such agreements and sub-secs. (3-A) and (3-B) relate to the statutory requirements of such agreements. Though S. 63 deals with counter-signature of permits sub-secs. (3-A) and (3-B) deal with the manner in which inter-State agreements touching inter-State routes are to be reached and enforced. It will, in our opinion be incorrect to say that the effect of non-compliance with the requirements of sub-secs. (3-A) and (3-B) should be 1imited to the context of counter-signatures. These sub-sections, though occurring in S. 63 deal with the procedure for the formation and enforcement of inter-State agreements. If this argument of Sri. Sundaraswami is accepted it will lead to this position, somewhat anomalous, that there can be an inter-State agreement respecting a particular inter-State route for purposes of grant of permit or of variations of its conditions but no such agreement for purposes of grant of counter-signatures.
14. The next argument of Sri Sundaraswami is that the requirements of S. 63 (3-B) are merely director and not mandatory and that failure to comply with the requirements of S- 63 (3-B) will not detract either from the existence of the inter-State agreement covering an inter-State route or its enforceability. Sri Sundaraswami contends that the requirements of sub-section (3-B) arise at the post-agreement stage and that the nature of the obligations enjoined in sub-section (3-B) would itself presuppose and proceed on the premise that there is already a concluded agreement and that the requirement of publication being merely incidental and procedural should not be construed as having peremptory effect. This argument incidentally, involves the implication that the two sub-secs. (3-A) and (3-B) are to be construed independently.
15-16. The controversy on this point admits of being disposed of on a short ground. The larger question whether the requirements of sub-section (3-B) are peremptory or merely directory may not assume all that importance in this case. In the present case, it is not as if the existence of an inter-State agreement covering the route at S1. No. 153 was satisfactorily proved before the ‘STA’ by evidence aliened and that the agreement respecting that route, otherwise so established, is denied its efficacy by reason alone of want of publication in the Andhra Gazette. The contention advanced for the petitioner and accepted by the learned Chief Justice was that the mere publication of the agreement in the Karnataka Gazette was itself sufficient to establish the existence of an inter State agreement covering that route. We have already noticed a plain reading of sub-section (3-B) shows that Part ‘A’ of the Appendix is not what is required by sub-section (3-B) to be published by the Karnataka State. There was no other material on record before the ‘STA’ to prove the existence of the agreement covering this route. Admittedly, the publication in its Gazette by the Andhra State of the Inter-State routes, permits respecting which had to be counter-signed by the authorities of that State, did not contact this route. On the material placed on record, it is not possible to say that the existence of the inter-State agreement covering this route is at all established. On this short ground alone apart altogether from the question whether requirements of S. 63 (3-B) are mandatory or not – this route at Sl. No. 153 cannot be said to be a route covered by an inter-State agreement.
Even otherwise, the contention of Sri Sundaraswamy that sub-section (3-B) is merely directory is not an acceptable one. Indeed, sub-secs. (3-A) and (3-B) were introduced into the ‘Act’ by Act No. 56 of 1969. These amendments were envisaged in Cls. 29 (c) and (d) of the Amending Bill. In the notes of clauses on these two provisions, this is what is stated:
“Sub-clauses (c) and (d):- There is no uniformity at present in the procedure being followed by the different State Governments in regard to the grant or counter-signature of permits in pursuance of the reciprocal agreements into which they enter. It has been represented that the existing operators providing services in the State in which a permit is countersigned do not sometimes get a reasonable opportunity to make representation about the adequacy of the services for traffic available on the routes in question. It hag been further represented that once an inter-State agreement is finalized its revision may become difficult. This amendment requires a State Government to publish in its Gazette the draft of an agreement which it proposes to conclude with another State Government for the operation of transport, vehicles of any inter-State route and provides an opportunity to the existing operators and other interests concerned to file objections. The agreement is to be finalised after considering the objections and it is to be published in the Gazette before implementation.” (Underlining supplied)
There is no provision independently of S. 63 (3-B) contemplating Gazette publication and the publication referred to in the notes is obviously the one envisaged under sub-section (3-B). This would suggest that the publication is mandatory and would constitute a condition precedent for implementation.
The question whether a provision is directory or mandatory “arises out of a phenomenon, judicially noticed, but otherwise disputed, that sometimes the legislature does not say what it means.” When the legislature employs the expression ‘shall’ it must normally be construed to mean ‘shall’ and not ‘may’. Indeed as Cotton L. J. once observed the word ‘may’ never can mean ‘must’, so long as the English language retains its meaning Re: Baker (1890) 44 Ch D 262, at p. 270. “The question whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. Meaning and intention of the legislature must alone govern and these are to be ascertained, not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it one way or 1he other”. (See: Crawford on Construction of Statutes, 1940 Edn. Art. 261).
Supreme Court in Pratap Singh v. Krishna Gupta, :
“We deprecate this tendency towards technicality. it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice ensues; and when the Legislature does not itself state which is which, Judges must determine the matter and exercising a nice discrimination sort out one class from the other along broad-based, commonsense lines.” (Underlining supplied)
In a task such as this viz., courts cannot safely go further than that in each case, it must look to the subject-matter, consider the importance of the provision that has been disregarded and the relevance of that provision to the general objective intended to be secured by the Act. The language is not always a sure index. The provision may be directory in form, but mandatory in substance. Some provisions in a statute may be mandatory some others merely directory. The difference arises where the legislature has used a language of apparent compulsive force, but has not prescribed the consequence of its disregard. No rule of general application is possible to be enunciated either. But some tests which the courts have evolved have worked effectively and with reasonable assurance of success.
In the Presidential election case , Supreme Court said:
“12. plainly, “shall” must normally be construed to mean “shall” and not “may”, for the distinction between the two is fundamental. Granting the application of mind there is little or no chance that one who intends to leave a lee-way will use the language of command in the performance of an act. But since, even lesser directions are occasionally clothed in words of authority, it becomes necessary to delve deeper and ascertain the true meaning lying behind mere words.”
As a general rule, a provision which indicates rule of public policy or a condone precedent for purposes of benefiting the public would be regarded as peremptory. The question to be ascertained is whether the thing directed to be done is of the essence or is a mere matter of form. In Crawford on ‘Construction of Statutes, it is stated:
“………..The basic test by which to determine whether the requirement is essential or not, is to consider the consequences of the failure to follow the statute. In this way, the importance of the requirement will be revealed. If the requirement is revealed to be important, it may logically be assumed that the legislature intended that it be met; if found to be unimportant, that it need not be met ……..” (P. 518)
Sub-sections (3-A) and (3-B) of S. 63 are part of the same scheme. The requirement is that Karnataka Government do publish the agreement in so far as it relates to inter-State routes permits respecting which require to be countersigned by the ‘STA’ Karnataka State. Sub-section (3-B) does not require the whole agreement and all the inter-State routes covered thereby to be published by each of the States. The authorities which are required to implement and give effect to the inter-State agreement such as the RTA or STA are different from the contracting parties. These authorities must have a common source from which the existence and contents of the inter-State agreements could authentically be ascertained. They cannot, on each occasion, summon- the original agreement or require the parties before them to establish the terms of agreement by independent evidence. This is the important purpose sub-section (3-B) seeks to serve.
Then again the latter part of sub-section (3-B) provides:
“and the State Transport Authority of the State and the Regional Trans port Authority concerned shall give effect to it.”
The conjunction ‘and’, in our opinion, introduces the idea of a sequence of events and connotes that the obligation to give effect to the agreement follows, and does not proceed, in the contemplated publication.
There is, in our opinion, force in the argument of Sri Rangaswamy that the view that the learned Chief Justice took was guided by what his Lordship took to be the requirement of sub-section (3-B) that it required the State of Karnataka to publish in the Gazette the agreement in its entirety. With respect, we are unable to agree with the reasoning of and conclusion reached by the learned Chief Justice. The proper view to take, in our opinion, is that unless the inter-State routes respecting which permits are to be countersigned by the authorities in Andhra Pradesh are included in the notification published by that State in its Gazette, it cannot be said that there is an inter-State agreement respecting these inter-State routes. In our opinion the requirement of publication in that manner in obedience to sub-section (3-B) is mandatory.
17. We, accordingly, hold that first there is no material to hold that there is an inter-State agreement covering the inter-State route at Sl. No. 153 and that secondly, in the face of the admitted non-inclusion of an inter-State route in the Andhra Pradesh Gazette publication under sub-section (3-B) of the route corresponding to Entry 153, the ‘STA’ cannot proceed on the premise that there is an inter-State agreement covering that inter-State route. We, accordingly, hold and answer Point (b) in favour of the appellants.
18. Re: Point (c) – The question is whether where there are several applications pending for grant of permits or for variation of the conditions of permits respecting the same route or substantially the same route the authority should take up all the applications and dispose them of together.
In K. Pandyaraja Ballal v. State Transport Appellate Tribunal, Bangalore W. P. Nos. 1200, 1215 and 1216 of 1960, D/- 10-11-1961) the Division Bench of: this Court observed:
“……….If two persons make art application for the grant of a permit and if the routes to which their applications relate are substantially the same, it is obvious that under the provisions of the Motor Vehicles Act, the Regional Transport Authority cannot take up only one of those applications and refuse to consider the other. If it does so, it would be acting beyond its powers. In my opinion, the procedure by which the Regional Transport Authority granted the permit to Achuthan was so defective and so irregular as to justify the conclusion that the permit granted by the adoption of that procedure was not validly granted.”
This decision was followed and the principle applied in K. G. Jagannath v. S. T. A., Bangalore W. P. No. 34927 of 1982 which pertained to the very proceedings before the ‘STA’ from which the present writ proceedings before this Court arise. Puttaswamy, J. issued directions to the ‘STA’ to dispose of the application of K. G. Jagannath (appellant in W. A. 523/83) along with the rival applications of others. Learned Judge disposing of the writ petition of respondent 8 said:
“all applications made under the Act before the same transport authority for grant of fresh SCPs. or variation of conditions of an SCP that will have the effect of granting a fresh SCP for the same route or substantially the same route that are ripe for consideration in the very nature of things and to do substantial justice to all should be considered together by that transport authority. As to what decision the transport authority will take on a consideration of all those applications, which cannot also be predicted before consideration, is a matter for the transport authority to decide after consideration of all the applications together. On a consideration of all or some of the applications only, the transport authority may grant a fresh permit only or may grant a variation only. But without a consideration of all the rival applications that are ripe for consideration, the authority would be virtually rejecting the applications of the persons whose applications are not considered and will be occasioning grave failure of justice to such an applicant.” (Vide para 9) (Underlining supplied)
After saying this, the learned Judge proceeded to issue directions for clubbing of the applications in terms excerpted earlier (vide para 3 supra).
19. Sri. Sundaraswamy learned counsel for the petitioner, however, contended that this was not a case where the grant of petitioner’s application for variation of the conditions of the permit would necessarily or inevitably result in the rejection of the prayers made by respondents 6, 8 and 10 in their applications and that consistently with the grant of petitioner’s prayer, the STA could also give in effective and purposeful consideration to the applications of respondents 6, 8 and 10 and that the principle that all the applications should be taken up and disposed of together is not in the present case an inviolable rule.
20. There are at least two answers to this contention of Sri Sundaraswamy. The first is that in view of the operative part of the order in W. P. 34927/82, the STA which was a party to that writ petition had hardly any choice and was obliged to consider the application of respondent 8 along with the rival applications of others for the same route or substantially the same, route together. The clear effect of this mandamus was that the application of petitioner as well as of respondents 6, 8 and 10 had to be considered together. The ‘STA’ was clearly in error in taking up the application dated 14-1-1980 of petitioner Pungappa alone and disposing of the same without reference to other applications. In the face of this mandamus in W. P. 34927/82 issued by Puttaswami J, it was quite improper for the ‘STA’ to have isolated the case of petitioner and taken it un for consideration. The reasons assigned by the ‘STA’ for not clubbing the applications are specious and quite unconvincing. Two reasons are assigned by the ‘STA’ for this extraordinary step of dealing with petitioner’s application independently. The first is that in Writ Petition 34927/82 the name of petitioner Pungappa, who was originally in the array of respondents, was directed to be deleted and that therefore the directions issued therein were not binding on him. But that deletion was in the context of the prayer for issue of a writ of prohibition against ‘STA’ from considering petitioner’s application. But what the ‘STA’ ignores is that the ‘STA’ itself was very much a party to the said writ petition and it was specifically directed to consider all the applications together. The second reason, somewhat of an extraordinary one at that, is that a certified copy of the order in W. P 34927/82 was not filed before the ‘STA’. Apart from the submission of Shri Rangaswamy that he had appeared for the parties in those proceedings and did in fact file a copy of the order of Puttaswamy, J. in W. P. No. 34927/82 before the Chairman of the STA well before the date of its order, it is seen that Puttaswamy, J. himself in Para 16 of his order directed Sri pandurangaswamy, learned High Court Government Pleader, who appeared for the ‘STA’ in that writ petition, to communicate the result of the writ petition to the ‘STA’ forthwith. Pursuantly on 14/15-10-1982, Sri Pandurangaswamy, learned High Court Government Pleader, addressed a letter to the Secretary of the ‘STA’. The letter reads:
“Sub : Writ Petitions Nos. 34927, 27330 and 27331 of 1982 on the file of the High Court of Karnataka – K. G. Jagannath and others v. The Karnataka State Transport Authority, Bangalore, and others.
The above writ petitions came up for hearing in ‘B’ group on 14-10-1982. The Court has finally taken the matter for hearing and dispose of the same with a direction to STA to consider the petitioner’s application along with other rival applications. This Court, while disposing of the above writ petitions has held that the non-consideration of the rival applications by STA, in not considering the applications for the same route or substantially the same route, it has failed to exercise the discretion vested in it, in not considering the applications together. This Court hag further directed me to communicate the orders passed immediately by telephonic message. It appears that the connected cases are being considered tomorrow. As directed by the Court, I have entered appearance for the respondents. Kindly issue necessary authorisation in this regard.
This is for your kind information.”
This letter, it is not disputed, was before the ‘STA’ at the time the application of petitioner was taken up. In view of these facts, it appears to us that the reasons advanced by the ‘STA’ for its disinclination to club all applications together could only be characterised as laboured to say the least.
21. The second answer to Sri Sundaraswami’s contention is that the requirement that all the rival applications should be clubbed and considered together stems from the rides of natural justice. There were rival claims as to the additional trips relating substantially to the same route. There are statable possibilities in this case that if an application for additional trips or for grant of a new permit was allowed in favour of one of the applicants, that circumstance might possibly be weighed against the similar prayer of other applicants particularly when the prayer is considered outside the inter-State agreement where the question of need would have to be examined. All these questions in the matter of grant of relief’s, either as sought by the rival applicants or in any modified form, would depend upon a consideration and inter-play of a variety of diverse factors a satisfactory consideration and assessment of the effects of which could be ensured only when all the applications were dealt with together. It is not possible to prefect what conclusions the ‘STA’ would reach on each of these applications if a simulative assessment of these rival and diverse claims put forward by petitioner and respondents 6, 8 and 10 was made. It is an ever at simplification of the situation to say that the grant of application of petitioner Pungappa would not come in the way of grant of prayers made by other applicants such as respondents 6, 8 and 10. It might come in the way; or it might not. In such a situation the question would equally well rise as to whose application is to be taken up first. It is, therefore, not possible to subscribe to the condition of Sri Sundaraswami that there would be no legal infirmity stemming, from a consideration of the application of petitioner Pungappa in isolation. The nonobservance of the rules of natural justices would by itself, without more, vitiate the proceedings as such non-observance is itself an injury and no further injury need be demonstrated. The Supreme Court in S. L. Kapok v. Jagmohan, said:
“24 …………In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is it self prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary ………..”
22. The positive direction issued by the learned Chief Justice granting the variation of conditions of the permit, in our opinion, results in violation of the rights of respondents 6, 8 and 10 to have their cases considered along with the application of petitioner Pungappa. The order of the learned Chief Justice, if we may say so with utmost respect, suffers from the same legal infirmity which the proceedings of the ‘STA’ suffer from by virtue of the application of petitioner Pungappa having been taken up alone for consideration and disposed of independently of other similar applications. Presumably, the directions issued by Puttaswamy, J., in W. P. 34927/ 82 were not brought to the notice of the learned Chief Justice.
23. We, accordingly, hold that all the applications, of petitioner and respondents 6, 8and 10 along with such other applications as may relate to the same route or substantially the same route as are ripe for consideration shall have to be clubbed, considered and disposed of by the ‘STA’ together and that the directions issued by the learned Chief Justice granting petitioner’s application requires to be set aside. We hold and answer point (c) accordingly.
24. Re. point (d). This relates to the permissibility in law of the form of relief in writ petition as granted by the learned Chief Justice. In view of our answer to Point (c), this question might become academic. However, learned counsel addressed elaborate arguments on the point before us. We may refer to the, points raised and authorities cited.
Learned counsel for the KSRTC contended that if this Court in exercise of its jurisdiction under Art. 226 finds that an order suffers from any legal infirmity calling for interference, the course open is to quash the order impugned and remit the matter to the authority concerned for a fresh disposal in accordance with law. He urged that the form and nature of relief granted by the learned Chief Justice not only goes beyond what is normally grantable under Art. 226 but also beyond even the prayer made in the writ petition itself. The learned Chief Justice, says Sri Rangaswamy, virtually exercised the jurisdiction of the ‘STA’ in this behalf and granted tile application where all that was called for was to remit the matter to the ‘STA’ for fresh disposal in accordance with law, particularly in view of the circumstance that the ‘STA’ had disposed of the matter on a preliminary ground of maintainability and had declined to examine the other contentions urged by the parties. Sri Rangaswamy relied upon several authorities in regard to the scope of relief permissible under proceedings under Art. 226 of the Constitution.
In Halsbury’s Laws of England, IV Edn., Vol. I, Para 108, it is stated :
“108. Licensing Justices. Upon the same principle a mandamus will issue to licensing it unless who have failed to hear and determine according to law an application in respect of a licence, commanding them to hear and determine an application for the grant, renewal, or transfer of a licence, or in respect of the compensation payable on the non renewal of an old licence; but as a general rule no mandamus will go commanding the actual grant, renewal, or transfer ……….” (Underlining supplied)
In Para 113 it is stated :
“113. Where discretion has been given and exercised. In cases where application made for the issue of an order of mandamus to tribunals of a judicial character, the order will not issue for the purpose of dictating to them in what manner they are to decide. Their duty being only to hear and determine according to law.” (Underlining supplied)
De Smith in ‘Judicial Review of Administrative Act’. Fourth Edition says:
“……….. The Courts cannot, if they are to keep within the accepted limits of their own jurisdiction, order the competent authority to exercise its discretion in the applicant’s favor, but they may circumscribe its discretion by indicating what are the factors to which it may lawfully havoc regard, and if the original decision was based solely upon a factor which is held to have been irrelevant, or if a condition attached to a discretionary grant of a licence is held to he invalid, the authority may well feel impelled to accede to the application when it is renewed before it.” (vide page 545) (Underlining supplied)
In Wada’s ‘A’ in startive Law’ Fifth Edn., it is stated :
“If the inferior court or tribunal merely makes a wrong decision within its jurisdiction, as opposed to refusing to exercise it, mandamus cannot be employed to make it change its conclusion. This is merely the familiar rule that the Court cannot interfere with action which is intra vires.” (Vide page 637)
Sri Sundaraswami, however, pointed out that having regard to the width of the language of Art. 226, it would not be proper to import the technical Rules which guide the administration of the prerogative writs in England and that courts in India car, in appropriate cases, issue, in the interest of justice, positive directions by deciding the controversy finally.
It is also true that the jurisdiction under Art. 226, which is at once extraordinary and discretionary, cannot be encapsulated and confined in terminological and technical formulations so as to limit the plenitude of that jurisdiction. This extraordinary constitutional power cannot be cribbed and confined in legal absolutisms. We agree with Sri Sundaraswamy that technicalities of English Rules guiding judicial review cannot be fastened on the jurisdiction of the High Courts under Art. 226.
In T. C. Basappa v. T. Nagappa, , Supreme Court said (at P. 443)
“(6) The language used in Arts. 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of ‘habeas corpus, mandamus, quo warranto, prohibition and certiorari’ as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges ………” (Underlining supplied)
Reiterating these principles Supreme Court in Mahaboob Sheriff & Sons v. Mysore S. T. Authority, :
“(11) The next question is what order should be passed in the circumstances. This depends on the exigencies of each case, for this Court is not confined by the technical rules relating to issue of writs by the English Courts………” (Underlining supplied)
Again in P. J. Irani v. State of Madras, , Supreme Court affirmed these principles :
“(14 …………We do not consider that immunity from interference by the Courts could be sought for orders which are plainly ultra vires merely, because they were passed, bona fide in the sense of being without indirect motive. Particularly so when the rower of the High Court under Art. 226 of the Constitution is not limited, to the issue of writs falling under particular groupings, such as the certiorari, mandamus. etc. as these writs have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well an. for other purposes.”
In Dwarakanath v. I T. Officer, , Supreme Court referring to the scope of Art. 226 said :
“This article in couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can ‘one exercised. It can inure writs in the nature of prerogative writs as, understood in England; but. the scope of those writs also is widened by the use of the expression “nature”, for the said expression does not equate the writs that can be issued in India with those in. England, but only draws an analogy from them. That apart High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art, 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself……” (vide para 4) (Underlining supplied)
In State of Kerala v. T. P. Roshana, , Krishna Iyer, J. said (at p. 774) :
“Here comes the play of processual realism in moulding the relief in the given milieu. The rule of law should not partly life or be inflexibly mulish. It is tempered by experience, mellowed by principled compromise, informed by the anxiety to avoid injustice and softens the blow within the marginal limits of legality. That is the karuna of the law.” (vide para 33)
“Had we left the judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady – confusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the ‘adversary system’ makes the fudge a mere umpire, traditionally, speaking, the community orientation of the judicial function, so desirable in the Third World remedial Jurisprudence, transforms the court’s power into affirmative structuring of readdress so as to make it personally meaningful and socially relevant. Frustration of invalidity is quart of the judicial fulfilment of legality is complementary. This principle of affirmative action is within our jurisdiction under Art. 136 and Art. 32 and we think the present cases deserve its exercises.” (vide para 40). (Underlining supplied)
In Shiva Shanker Dal Mills v. State of Haryana, the same learned judge said :
“Article 226 grants an extraordinary remedy which is essentially discretionary although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order such as public interest dictates and equity projects………..” (vide para 6) (Underlining supplied)
In Gujarat Steel Tubes Ltd, v. Its Mazdoor Sabha, , Krishna Iyer, J. noticed the argument against the Court itself exercising under Art. 226 the powers vested in an authority, thus :
“……….. The position taken lap by Sri Sen was that the High Court could not, under Art. 226, direct reinstatement, and even if it felt that the arbitrator had gone wrong in reusing reinstatement, the court could only demolish the order and direct the arbitrator to reconsider the issue. What belonged as a dictionary power, to a tribunal or other adjudicatory body could not be wrested by the writ court. To put it pithily, regarding the relief of’ reinstatement, the arbitrator could but would not and the High Court would but could not……..” (vide para 78).
Repelling this suggested limitation on the powers of the Court the Supreme Court said :
“The basis of this submission as we conceive it, is the traditional limitations woven around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Art. 226 has been inspired by the royal writs its sweep and scope exceed hidebound British processes of yore. We are what we are because our Constitution framers have felt the need for a. pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring’ nor custom constrict where the language age used is widely wide. The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in Art. 226 that any order which should have been made by the lower authority could be made by the High Court…….” (vide para 79) (Underlining supplied)
“Even apart, from, but while approving, the Gujarat ruling in (1978) 19 Guj LR 108 cited before us, we are satisfied that the writ power is largely given illegality and injustice, even if its use is severaly discretionary as decided cases have repeatedly laid down.
We overrule the objected of invalidity of the High Court’s order for went of power.” (vide part 82) (Underlining supplied)
“In the second chapter of our sum-up, the first thing we decide is that Article 226, however restrictive in practice, is a power wide enough, in all conscience to be a friend in, need, hence the summons comes in a crisis from a victim of injustice and mere importantly, this extraordinary reserve power is unsheathed to grant final relief without necessary recourses to a remand. What the tribunal may, in Its discretion, do the High Court too, under Art. 226 can if facts compel, do…” (vide para 146)
These authoritative, pronouncement should serve to lay this controversy to rest. The existence of the power need not be put in doubt. Where an extraordinary situation arises calling for an extraordinary remedy, the Court need not fold up its hands and. Withhold reground alone of some limitations imposed by conventional and technical Rules of, English practice and procedure.
But, at the same time, exceptional situations apart, the normal and conventional preface in the exercise of this extraordinary jurisdiction under Article 226 is merely to quash the impugn ed proceedings, where the exercise of a discretionary power by an authority is vitiated by procedural errors, and to do remit the matter for consideration afresh by the, authority in the light of the observations made and guidelines given by the Court. That the High Court can. in exercise of power under Art. 226, do what the authority vested with the discretionary power could it self have done does not mean.-that that should be the approach in every case. Though the powers under Art. 226 are wide, there are limitations, inherent in the very width of the power, not only in the matter of the choice of the class of cases in which that jurisdiction to allowed to be invoked but also the manner in which it is exercised and the forms of relief conventionally considered apposite and appropriate. Indeed after referring to the permissibility of affirmative and positive action and of final decisions in exercise of this jurisdiction Supreme Court, however, has had this to say in T. C. Basappa’s case as to the need to keep in mind certain fundamental principles regulating this jurisdiction :
"........We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English Law ............." (vide para 6) Again after referring to the width of the power under Art. 226, Supreme Court in Dwarakanath's case said this as to the need for limitation on that power: ".......... To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels (vide para 4) In Gujarat Steel Tubes case, referring to the limitations arising out of and inherent in the very width of the power (the Court) said : "...........The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power." (vide para 79)
Consistent with these well accepted, though self-imposed limitations, occasions for exercise on the discretionary powers by the High Court that the authorities themselves could exercise are, indeed, not the rule but, constitute exceptions, resorted to only where the exceptional and the compelling requirements of justice demand. The usual and conventional approach is still that the judicial review is directed not against the decision itself, but against the decision making process which, in its wake, brings certain well recognised limitations on the scope of the relief generally to be granted in proceedings under Art. 226. The normal and conventional limitations of the scope of interference in judicial review is illustrated in the case of Chief Constable v. Evans (1992) 1 WLR 1155 thus :
“Since the range of authorities, and the circumstances of the use of their power, almost infinitely various, it is of course unwise to lay down rules for the application of the remedy which appear to be of universal validity in every type of case. But it is important to remember in every case hat the purpose of the remedies is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.
“There are passages in the judgment of Lord Denning M. R. (and perhaps in the other judgments of the Court of Appeal) in the instant case and quoted by my noble and learned friend which might be read as giving the courts carte blanche to review the decision of the authority on the basis of what the courts themselves consider fair and reasonable on the merits. I am not sure whether the Master of the Rolls really intended his remarks to be construed in such a way as to permit the court to examine, as for instance in the present case, the reasoning of the Subordinate authority with a view to substituting its own opinion. If so, I do not think this is a correct statement of principle. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.” (per Lord Hailsham, pp. 1100-1101).
“Judicial review is concerned, not with the decision but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.” (per Lord Brightman, page1173)
“…………. With profound respect to the Court of Appeal, I dissent from the view that “Not only must (the probationer constable) be given a fair bearing but the decision itself must be fair and reasonable.”
“If that statement of the law passed into authority without comment, it would in ray opinion transform, and wrongly transform, the remedy of judicial review. Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision, was made ………….. .” (per Lord Brightman p. 1174)
In any event, the view of the learned Chief Justice as to the form of relief grantable in this case is not supportable on the facts of this case. In this case the question is not one of existence of the power; but is one of justification and propriety in its exercise in the manner now done. We, accordingly, hold and answer Point (d) in favour of the appellants.
25. In view of our finding on point (b) petitioner is not entitled to rely, upon the quota for additional trips sought fair by him an entry 153 of the agreement as it is now published. But he was entitled to have his application for variation of the condition of the permit by grant of additional trips outside the agreement. But the ‘STA’ has, declined to consider the application outside the agreement. The reassessing of the ‘STA’ in this behalf is this :
In the normal circumstances, where the route has not been included and not covered by the agreements published by the two States, permit could have perhaps been considered for grant on double point taxation. But unfortunately in this particular case since the route has already been published in the list published by Karnataka and has not been published by the Andhra Pradesh Government the issue takes a different shape altogether ….. Therefore, unless certain amendments or rectifications are made in the inter-State agreement in accordance with the provisions of the MV Act, 1939, under S.63, we do not find it necessary to grant the variation as applied since such a grant would be outside the scope of the agreement.
This reasoning is untenable. The ‘STA’ rejects the consideration of petitioner’s application under the agreement on the ground that there is, according to it no inter-State agreement covering the inter-State route under Entry 153 and at the same it also, strangely, declines to consider the application outside the agreement on the ground that there is, though inchoate, an agreement. This reasoning is self-contradictory and can hardly be sustained. Petitioner’s application is entitled to be considered outside the agreement in accordance with law.
26. In view of our finding on Points (b) (c) and (d), we allow these appeals and set aside the order dt. 8-4-1983 of the learned Chief Justice in Writ Petition No. 1379 of 1983 as also the order dt. 25-11-1982 of the ‘STA’. The application dt. 14-1-1980 made by petitioner Pungappa before the ‘STA’ is remitted to the ‘STA’ with a direction that the same be taken back on file : considered and disposed of along with the applications made by respondents 6, 8 and 10 and other similar applications, if any, of others in accordance with law and in the right of the observations and directions contained in the ‘STA’ shall proceed on as the matter now stands inter-State agreement inter-State route shown put of appendix to the inter-State agreement as published by the Karnataka State in its Gazette.
In the circumstances of the case, we leave the parties to bear their own costs in these appeals.
Sri Mandappa, learned Government Advocate, is permitted to file his memo of appearance within three weeks from today.
Order on oral application under Article 134A of the Constitution for grant of certificate under Art. 133 to appeal to the Supreme Court.
At the conclusion of the dictation of the above appellate judgment, Sri Sundaraswamy, learned counsel for petitioner, made an oral application under Art. 134A for grant of certificate under Art. 133 to appeal to the Supreme Court from the judgment. In our opinion these appeals do not involve any substantial question or questions of law of general importance needing to be decided by the Supreme Court. Accordingly, we refuse the certificate sought for and dismiss the oral application made by Sri Sundaraswarny.
Sri Sundaraswamy, however, submitted that petitioner intends to move the Supreme Court for grant of Special Leave and for an order of stay of our judgment in appeal and that therefore the operation of our judgment in these appeals be stayed for a period of eight weeks from today as else petitioner would, even before he has had an opportunity of moving the Supreme Court for special leave. have to stop the additional services which he is operating pursuant to the order of the learned Chief Justice. This prayer is opposed by the learned counsel for appellants. We, however, consider the prayer of Sri Sundaraswamy reasonable. We, accordingly, stay the operation of our judgment in these appeals for a period of 8 weeks from today so as to enable the petitioner to move the Supreme Court.
27. Order accordingly.