{"id":212890,"date":"1964-03-05T00:00:00","date_gmt":"1964-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/b-rajagopala-naidu-vs-state-transport-appellate-on-5-march-1964"},"modified":"2016-10-17T13:00:18","modified_gmt":"2016-10-17T07:30:18","slug":"b-rajagopala-naidu-vs-state-transport-appellate-on-5-march-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/b-rajagopala-naidu-vs-state-transport-appellate-on-5-march-1964","title":{"rendered":"B. Rajagopala Naidu vs State Transport Appellate … on 5 March, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
B. Rajagopala Naidu vs State Transport Appellate … on 5 March, 1964<\/div>\n
Equivalent citations: 1964 AIR 1573, \t\t 1964 SCR (7)\t 1<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Shah, J.C., Ayyangar, N. Rajagopala, Sikri, S.M.<\/div>\n
           PETITIONER:\nB.   RAJAGOPALA NAIDU\n\n\tVs.\n\nRESPONDENT:\nSTATE TRANSPORT APPELLATE TRIBUNAL & ORS.\n\nDATE OF JUDGMENT:\n05\/03\/1964\n\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nWANCHOO, K.N.\nSHAH, J.C.\nAYYANGAR, N. RAJAGOPALA\nSIKRI, S.M.\n\nCITATION:\n 1964 AIR 1573\t\t  1964 SCR  (7)\t  1\n CITATOR INFO :\n RF\t    1966 SC1366\t (1,4,6,7)\n R\t    1969 SC  48\t (10)\n R\t    1970 SC1241\t (6)\n R\t    1972 SC2250\t (14,15,16,19,20)\n R\t    1974 SC1117\t (4)\n R\t    1974 SC2297\t (5)\n R\t    1977 SC 416\t (3)\n\n\nACT:\nMotor Vehicles Act, 1939 (4 of 1939), s. 43A (as inserted by\nMadras Amending Act 20 of 1948) Madras G.O. No. 1298,  dated\nApril  28,  1956-Government order prescribing the  award  of\nmarks-If  direction to Regional Transport Authority  in\t the\ndischarge  of its quasi-judicial function-Section  43A-Scope\nof--if authorises only administrative directions.\n\n\n\nHEADNOTE:\nThe appellant is a bus operator in the State of Madras.\t  On\nan  invitation for applications for the grant of  two  stage\ncarriage  permits he submitted his applications\t along\twith\nmany  others.  The State Transport Authority considered\t the\nmerits of the application awarding marks in accordance\twith\nthe  principles\t prescribed by Madras G.O. No.\t1298,  dated\nApril  28,  1956 issued under s. 43A of the  Motor  Vehicles\nAct,  1939 inserted by the Madras Amending Act 20  of  1948.\nThe  Transport\tAuthority  on this  basis  granted  the\t two\npermits\t to the appellant.  Against this order a  number  of\nappeals\t were filed by some of the  unsuccessful  applicants\nincluding  respondents Nos. 2 and 3 in the  present  appeal.\nThe Appellate Tribunal re-allotted marks in accordance\twith\nthe  above G.O. and respondents 2 and 3 having\tsecured\t the\nmaximum\t number of marks were granted the permits.   On\t the\nrejection  of a petition under Art. 226 of the\tConstitution\nand after appealing without success to a Division Bench\t the\nappellant applied for a certificate to appeal to this  Court\nwhich  rejected.   The present appeal was filed\t on  special\nleave granted by this Court.\nIt  was\t contended on behalf of the  appellant\tbefore\tthis\nCourt that since Madras G.O. No. 1298, dated April 28, 1956,\npurports  to issue direction to the Transport  Authority  in\nthe  discharge of its quasi-judicial functions it is  beyond\nthe  powers  conferred by s. 43A of the Motor  Vehicles\t Act\nwhich  authorises only the issue of directions to  the\tsaid\nauthority  in the discharge of its administrative  functions\nand therefore it is bad.\nHeld, (i) Section 43A confers power on the State  Government\nto  issue  orders  and directions  to  the  State  Transport\nAuthority only in relation to its administrative functions.\nM\/s.  Raman and Raman v. The State of Madras<\/a> [1959] 2 S.C.R.\n227, relied on.\n(ii)It\tis well settled that ss. 47, 48, 57, 60, 64 and\t 64A\ndeal  with quasi-judicial functions and when  the  transport\nauthorities  are dealing with applications for\tpermits\t and\nevaluating  the\t respective  claims  of\t the  parties,\t the\ntransport   authorities\t  are\tdischarging   quasi-judicial\nfunctions and their orders are quasi-judicial orders subject\nto the jurisdiction of the High Court under Art. 226.\nL\/P(D)1SCI-1\n2\nNew Prakash Transport Co. Ltd. v. Suwarna Transport Co. Ltd.<\/a>\n[1957]\tS.C.R.,\t 98  M\/s Raman and Raman Ltd.  v.  State  of\nMadras,<\/a>\t [1959]\t 2 S.C.R. 227, B. Abdulla Rowther  v.  State\nTransport Appellate Tribunal, Madras, A.I.R. 1959, S.C. 896,\nrelied on.\n(iii)\t  In interpreting s. 43A it is legitimate to  assume\nthat  the  legislature\tintended to respect  the  basic\t and\nelementary postulate of the, rule of law that in  exercising\ntheir\tauthority  and\tdischarging   their   quasi-judicial\nfunctions,  the tribunals constituted under the Act must  be\nleft  absolutely free to deal with the matter  according  to\ntheir  best  judgement.\t It is of the essence  of  fair\t and\nobjective administration of law that the decision of  judges\nor tribunals must be absolutely unfettered by any extraneous\nguidance  by  the executive or administrative  wing  of\t the\nState.\n(iv) The  impugned  order is outside the purview of  s.\t 43A\ninasmuch  as  it purports to give directions in\t respect  of\nmatters\t  which\t have  been  entrusted\tto   the   tribunals\nconstituted under the Act and which have to be dealt with by\nthem in quasi-judicial manner.\n(v)  The decision of the appellate Tribunal is solely  based\non  the provisions of the impugned order and since the\tsaid\norder is invalid, the decision is also bad.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 19 of 1964.
\nAppeal\tby special leave from the judgment and\torder  dated
\nOctober\t 29, 1963, of the Madras High Court in\tWrit  Appeal
\nNo. 214 of 1962.\n<\/p>\n
S.   Mohan Kumar amagalam, M. N. Rangachari, R. K. Garg,  M.
\nK. Ramamurthi, for the appellant.\n<\/p>\n
R.   Ganapathy Iyer, for respondents Nos. 2 and 3.
\nA.   Ranganadham Chetty and A. V. Rangam, for respondent No.\n<\/p>\n
4.
\nM.   C.\t Setalvad, N. C. Krishna Iyengar and 0.\t C.  Mathur,
\nfor Intervener.\n<\/p>\n
March 5, 1964.\tThe judgment of the Court was delivered by-
\n GAJENDRAGADKAR,  C.J.-The short but important point of\t law
\nwhich  has  been raised for our decision in this  appeal  by
\nspecial\t leave is whether G.O. No. 1298 issued by  the\tGov-
\nernment\t of  Madras  on April 28, 1956 in  exercise  of\t its
\npowers\tconferred by s. 43A of the Motor Vehicles Act,\t1939
\n(Central  Act  IV  of 1939)  (hereinafter  called  the\tAct)
\ninserted  by the Madras Amending Act 20 of 1948,  is  valid.
\nMr.  Mohan  Kumaramangalam  who appears\t for  the  appellant
\ncontends  that the impugned Government order is invalid\t for
\nthe simple reason that it is outside the purview of s.\t43A.
\nThe  impugned  order was issued as early as 1956  and  since
\nthen, its validity
\n3<\/span>
\nhas  never been impeached in judicial proceedings.   Litiga-
\ntion  in regard to the grant of permits under  the  relevant
\nprovisions of the Act has figured prominently in the  Madras
\nHigh  Court in the form of writ petitions invoking the\tsaid
\nHigh Court’s jurisdiction under Art. 226 of the Constitution
\nand  several aspects of the impugned order have come  to  be
\nexamined.   The\t echoes of such litigation  have  frequently
\nbeen heard in this Court and this Court has had occasion  to
\ndeal  with the impugned order, its character, its scope\t and
\nits effect-, but on no occasion in the past, the validity of
\nthe order appears to have been questioned.  The\t legislative
\nand  judicial  background  of the order and  the  course  of
\njudicial  decisions in regards to the points raised  in\t the
\nenforcement of this order would prima facie and at the first
\nblush  suggest that the attack against the validity  of\t the
\norder may not be wellfounded and that would tend to make the
\ninitial\t judicial  response  to\t the  said  challenge\tmore
\nhesitant  and  reluctant.  But Mr.  Kumaramangalam  contends
\nthat  s.  43A under which the order purports  to  have\tbeen
\npassed would clearly show that the said order is outside the
\npurview\t of the authority conferred on the State  Government
\nand  is\t therefore  invalid.  It is  obvious  that  if\tthis
\ncontention  is upheld, its impact on the  administration  of
\nthe  system  adopted  in the State of  Madras  for  granting
\npermits under the Act would be very great and so though\t the
\nquestion  lies within a narrow compass, it needs to be\tvery
\ncarefully  examined.   The facts which lead to\tthe  present
\nappeal conform to the usual pattern of the permit litigation
\nin  which  the grant or refusal to grant a permit  is  chal-
\nlenged\tunder the writ jurisdiction of the High Court  under
\nArt. 226.\n<\/p>\n
The  appellant B. Rajagopala Naidu is a bus operator in\t the
\nState  of  Madras and he runs a number of buses\t on  various
\nroutes.\t On June 26, 1956, the State Transport Authority  by
\na  notification\t invited applications for the grant  of\t two
\nstage  carriage permits on the route Madras to\tKrishnagiri.
\nThe  buses on this route were to be run as express  service.
\nThe appellant and 117 bus operators including respondents  2
\nand   3\t  D.   Rajabahar   Mudaliar,   proprietor   of\t Sri
\nSambandamoorthy\t Bus  Service  and  K.\tH.  Hanumantha\tRao,
\nproprietor of Jeevajyoti Bus Service respectively, submitted
\napplications  for  the two permits in question.\t  The  State
\nTransport Authority considered the said applications on\t the
\nmerits.\t  In  doing  so,  it proceeded\tto  award  marks  in
\naccordance  with the principles prescribed by  the  impugned
\norder  and  came  to  the  conclusion  that  the   appellant
\nsatisfied the requirements enunciated by the State Transport
\nAuthority for running an efficient bus service on this\tlong
\nroute,\tand so, it granted the two permits to the  appellant
\non May 8, 1958.\n<\/p>\n
L\/P(D)1SCI-1(a)
\n4<\/span>
\nAgainst\t this  decision, 18 appeals were  preferred  by\t the
\nunsuccessful  applicants including respondents 2 and 3.\t All
\nthese appeals were heard together by the State Transport Ap-
\npellate\t Tribunal,  Madras in June 1959.   It  appears\tthat
\nbefore the appeals were thus heard, the State Government had
\nsuperseded the principles enunciated in the order in so\t far
\nas  they related to the grant of stage carriage permits\t and
\nhad issued another direction under s. 43A known as G.O. 2265
\non  August 9, 1958.  Incidentally, it may be added  that  by
\nthis  order,  different\t criteria had  been  prescribed\t for
\nselection  and a different marking system had been  devised.
\nThe  Appellate Tribunal considered the claims of  the  rival
\nbus  operators\tand allotted marks in  accordance  with\t the
\nprinciples  laid  down by the earlier order.  As  a  result,
\nrespondents  2\tand 3 secured the highest  marks  and  their
\nappeals\t were allowed, the order under appeal was set  aside
\nand two permits were granted to them.  This order was passed
\non July 4, 1959.\n<\/p>\n
The  appellant then invoked the jurisdiction of\t the  Madras
\nHigh  Court under Art. 226 of the Constitution by this\twrit
\npetition  No.  692 of 1959.  In his writ  petition  the\t ap-
\npellant\t challenged the validity of the order passed by\t the
\nAppellate Tribunal on several grounds.\tOne of them was that
\nthe  impugned order on which the decision of  the  Appellate
\nTribunal  was based, was invalid.  This plea along with\t the
\nother  contentions  raised by the appellant failed  and\t the
\nlearned\t Single Judge who heard his writ petition  dismissed
\nthe  petition,\ton  October 18, 1962.\tThe  appellant\tthen
\nchallenged  the\t correctness of this decision by  a  Letters
\nPatent Appeal No. 214 of 1962 before a Division Bench of the
\nsaid  High Court.  The Division Bench, however, agreed\twith
\nthe view taken by the Single Judge and dismissed the Letters
\nPatent\tAppeal\tpreferred by the appellant.   The  appellant
\nthen  moved  the said High Court for leave,  but  failed  to
\nsecure it, and that brought him here with an application for
\nspecial leave which was granted on November 14, 1963.  It is
\nwith this special leave that the appellant has brought\tthis
\nappeal before us for final disposal.\n<\/p>\n
Before\tdealing with the points raised by the appellant,  it
\nis  necessary  to consider the background  of  the  impugned
\norder, and that takes us to the decision of the Madras\tHigh
\nCourt  in  Sri Rama Vilas Service Ltd. v. The  Road  Traffic
\nBoard,\tMadras,\t by  its Secretary(1).\tIn  that  case,\t the
\nappellant had challenged the validity of a Government  order
\nNo.  3898 which had been issued by the Madras Government  on
\nDecember  9,  1946.   This order  purported  to\t direct\t the
\ntransport authorities to issue only temporary permits as the
\nGovernment   intended\tto  nationalise\t  motor\t  transport.
\nAccordingly,  instruction  No.\t2  in  the  said  order\t had
\nprovided that when
\n(1)  (1948) 1 M.L.J. 85.\n<\/p>\n
5<\/span><\/p>\n
applications  were  made for new routes or  new\t timings  in
\nexisting routes, then small units should be preferred to old
\nones.\tIn  accordance\twith  this  instruction,  when\t the
\napplication for permit made by the appellant, Sri Rama Vilas
\nService\t was rejected, the order stated that it so  rejected
\nin  the interests of the public generally under s.  47(1)(a)
\nof  the Act.  The appellant preferred ,-in’  appeal  against
\nthe  order  to\tthe  Central  Board  namely  the  Provincial
\nTransport  Authority  which  had  been\tconstituted  by\t the
\nGovernment  under s. 44 of the Act.  His appeal\t failed\t and
\nso,  he\t moved\tthe Madras High Court under  s.\t 45  of\t the
\nSpecific  Relief Act for an order directing the\t respondent-
\nthe Road Traffic Board, Madras–to consider the\t application
\nof  the appellant in accordance with the provisions  of\t the
\nAct and the rules made thereunder for renewal of the  permit
\nfor  plying buses.  The High Court held that G. O. No.\t3898
\nwas in direct conflict with the proviso to s. 58 sub-s.\t (2)
\nof the Act, and so, was invalid.  This decision showed\tthat
\nthere  was no authority or right in the State Government  to
\nissue  instructions  such  as were  contained  in  the\tsaid
\nGovernment order.  In reaching this decision, the High Court
\nemphasised the fact that the Central Transport Board and the
\nRegional Transport Board were completely independent of\t the
\nGovernment  except that they must observe the  notifications
\nmade pursuant to s. 43 of the Act.  It was conceded that  if
\nand  when the Government acted as an Appellate Tribunal,  it
\nhad  judicial functions to discharge.  But  these  functions
\ndid not include the power to give orders to any Board  which
\nwas  seized of an application for renewal of permits.\tThat
\nis  how it was established by this decision that as the\t Act
\nstood,\tthe  State  Government had  no\tauthority  to  issue
\ndirections  as\tto  how applications for  permits  or  their
\nrenewal\t should be dealt with by the  Tribunals\t constituted
\nunder the Act.\tThis judgment was pronounced on November 19,
\n1947.\n<\/p>\n
As a result of this judgment, the Madras Legislature amended
\nthe  Central Act by Act XX of 1948 which came into force  on
\nDecember 19, 1948.  Amongst the amendments made by this\t Act
\nwas  the insertion of s. 43A with which we are concerned  in
\nthe   present  appeal.\t This  section\tclothed\t the   State
\nGovernment  with  powers  to issue  certain  directions\t and
\norders.\t  As we have already indicated, the point  which  we
\nare,  considering  in  the present  appeal  is\twhether\t the
\nimpugned  order\t falls within the purview of the  power\t and
\nauthority conferred on the State Government by this section.
\nWe will read this section later when we address ourselves to
\nthe question of its construction.\n<\/p>\n
The  amendment of the Central Act led to the next  round  of
\ncontroversy  between  the bus operators and the\t State\tGov-
\nernment and that resulted in the decision of the Madras High
\n6<\/span>
\nCourt in C.S.S. Motor Service Tenkasi v. The State of Madras
\nand  another(1).   In  that case, the  validity\t of  several
\nprovisions of the Act including the provisions introduced by
\nthe  Madras  Amendment\tAct were  challenged.\tIt  will  be
\nrecalled that at the time when this challenge was made,\t the
\nConstitution  had come into force and the  appellant  C.S.S.
\nMotor  Service urged before the High Court that\t under\tArt.
\n19(1)(g) it had a fundamental right to ply motor vehicles on
\nthe  public pathways and the impugned provisions of the\t Act
\ninvaded\t its  aforesaid\t fundamental  right  and  were\t not
\njustified  by  Art.  19(6).   The  High\t Court\t elaborately
\nconsidered the first part of the contention and it took\t the
\nview, and we think rightly, that a citizen has a fundamental
\nright to ply motor vehicles on the public pathways for\thire
\nor otherwise and that if any statutory provision purports or
\nhas  the  effect of abridging such  fundamental\t right,\t its
\nvalidity  would have to be judged under the relevant  clause
\nof  Art.  19.  Proceeding to deal with the dispute  on\tthis
\nbasis,\tthe High Court examined the validity of the  several
\nimpugned  provisions of the Act.  In regard to s.  43A,\t the
\nHigh Court came to the conclusion that the said section\t was
\nvalid  though  it  took the precaution of  adding  that\t the
\norders\tpassed\tthereunder  might be open  to  challenge  as
\nunconstitutional.   It is, however, necessary  to  emphasise
\nthat  the main reason which weighed with the High  Court  in
\nupholding  the\tvalidity of this section was that  the\tHigh
\nCourt  was satisfied that the said section was “intended  to
\nclothe the Government with authority to issue directions  of
\nan  administrative character.” Thus, s. 43A was held  to  be
\nvalid in this case and the correctness of this conclusion is
\nnot disputed before us.\t In other words, we are dealing with
\nthe  appellant’s  challenge  against  the  validity  of\t the
\nimpugned  order\t on the basis that s. 43A itself  is  valid.
\nThis judgment was pronounced on April 25, 1952.
\nSome years after this judgment was pronounced, the  impugned
\nGovernment  order was issued on April 28, 1956.\t This  order
\npurported  to  issue  instructions  or\tdirections  for\t the
\nguidance  of  the Tribunals constituted under the  Act.\t  In
\nfact, it refers to the judgment of the Madras High Court  in
\nthe case of C.S.S. Motor Service.  It would appear that\t the
\nMadras Government wanted to give effect to the said decision
\nby  issuing  appropriate  directions  under  its   authority
\nderived\t from  s.  43A\twhich was held\tto  be\tvalid.\t The
\nimpugned order deals with five topics.\tThe first topic\t has
\nrelation  to the instructions which had to be borne in\tmind
\nwhilst\tscreening the applicants who ask for permits.\tThis
\npart  of  the  order provides that  the\t applicants  may  be
\nscreened  and disqualified on one or more of the  principles
\nenunciated  in cls.  1 to 4 in that part.  The\tsecond\tpart
\ndeals with the system of assigning marks to
\n(1)  A.L.R. (1953) Mad. 304.\n<\/p>\n
7<\/span><\/p>\n
the  several claimants, under four columns.  In laying\tdown
\nthese
\nprinciples, the impugned order intended to secure  precision
\nin  the disposal of claims for permits and to  enable  quick
\nconsideration of the merits of such claimants.\tThis part of
\nthe  order, however, made it clear that in cases  where\t the
\nsystem\tof  marking worked unfairly the\t Regional  Transport
\nAuthority  may ignore the marks obtained for reasons  to  be
\nstated.\t It is this’ part of the order which has  introduced
\nthe  marking  system which has been the special\t feature  of
\nadjudication  of claims for permits in the State of  Madras.
\nThese  two  parts are described as “A.”\t in  the  Government
\norder.\t Part  3 deals with the variation, or  extension  of
\nroutes\tgranted\t under the permits.  Part 4 deals  with\t the
\nrevision  of timings and Part 5 has reference to  suspension
\nor cancellation of permits.  That in brief is the nature  of
\nthe directions issued by the impugned order.
\nAfter  this order was issued and the  Tribunals\t constituted
\nunder the Act began to deal with applications for permits in
\naccordance  with  the  principles  prescribed  by  it,\t the
\ndecisions  ,of\tthe  said Tribunals came  to  be  frequently
\nchallenged  before the Madras High Court and these  disputes
\nhave,  often  been brought before this court  as  well.\t  In
\nthese  cases,  the  character of the  order  passed  by\t the
\nTribunal was examined, the nature of the instructions issued
\nby  the impugned order was considered and the rights of\t the
\nparties\t aggrieved  by the quasi-judicial decisions  of\t the
\ntribunals also fell for discussion and decision.  A question
\nwhich  was often raised was whether it was open to  a  party
\naggrieved  by the decision of the Tribunal to  contend\tthat
\nthe  said decision was based either on a misconstruction  of
\nthe  impugned  order  or in contravention  of  it,  and\t the
\nconsensus   of\tjudicial  opinion  on  this  part   of\t the
\ncontroversy  appears to be that the proceedings\t before\t the
\nTribunals  constituted\tunder  the  Act\t are   quasijudicial
\nproceedings  and as such liable to be corrected\t under\tArt.
\n226 of the Constitution.  It also appears to be well  estab-
\nlished\tthat the impugned order is not a statutory rule\t and
\nhas  therefore no force of law.\t It is an administrative  or
\nexecutive  direction and it is binding on the tribunals;  it
\ndoes not, however, confer any right on the citizen and\tthat
\nmeans,\tthat a citizen cannot be allowed to contend  that  a
\nmisconstruction\t of  the order or its contravention  by\t any
\ndecision of the Tribunal functioning under the Act should be
\ncorrected under Art. 226.\n<\/p>\n
In  M\/s\t Raman\tand Raman Ltd. v. The State  of\t Madras\t and
\nothers<\/a>(1),  this Court by a majority decision held  that  s.
\n43A of the Act as amended by the Madras Amendment Act,\t1948
\nmust  be given a restricted meaning and the jurisdiction  it
\nconferred  on  the  State Government  to  issue\t orders\t and
\ndirections must be confined to administrative functions.  An
\norder or
\n(1)  [1959] 2 S.C.R. 227.\n<\/p>\n
8<\/span><\/p>\n
direction  made thereunder by the State Government was\tcon-
\nsequently  denied  the status of law  regulating  rights  of
\nparties. and was treated as partaking of the character of an
\nadministrative\torder.\tSimilarly, in R. Abdulla Rowther  v.
\nThe State Transport Appellete Tribunal, Madras and others(1)
\nthis  Court held by a majority decision that the orders\t and
\ndirections  issued  under s. 43A were  merely  executive  or
\nadministrative\tin  character  and  their  breach,  even  if
\npatent, would not justify the issue of a writ of certiorari.
\nIt  was also observed that though the orders were  executive
\nand  did  not  amount to statutory rules,  they\t were  rules
\nbinding on the transport authorities for whose guidance they
\nhave  been issued, but that did not confer any right on\t the
\ncitizen\t and  so a plea that a contravention of\t the  orders
\nshould be corrected by the issue ,of an appropriate writ was
\nrejected.  Such contravention, it was held, might expose the
\nTribunal  to the risk of disciplinary or  other\t appropriate
\naction,\t but  cannot entitle a citizen to make\ta  complaint
\nunder  Art. 226.  It is necessary to emphasise that in\tboth
\nthese  cases no argument was urged that the  impugned  order
\nwas  itself  invalid  and should have been  ignored  by\t the
\nTribunals  exercising  quasi-judicial  authority  under\t the
\nrelevant  provisions  of the Act.  The Court  was  no  doubt
\ncalled upon to consider the character of the impugned  order
\nand  some of the reasons given in support of the  conclusion
\nthat the impugned order is administrative or executive\tseem
\nto suggest that the said order would, prima facie, be incon-
\nsistent\t with  the  provisions of s. 43A  which\t received  a
\nnarrow\t and   limited\t construction\tfrom   the    court.
\nNevertheless,  since  the point about the  validity  of\t the
\nimpugned order was not raised before the court, this  aspect
\nof  the\t question was not examined and\tthe  discussion\t and
\ndecision proceeded on the basis that the impugned order\t was
\nvalid.\tNow that the question has been raised before us,  it
\nhas become necessary to examine the validity of the impugned
\norder.\n<\/p>\n
Before\tproceeding  to examine the scope and effect  of\t the
\nprovisions  of s. 43A, it is necessary to bear in  mind\t two
\ngeneral considerations.\t The first broad consideration which
\nis relevant has relation to the scheme of the Act in general
\nand  the scheme of Ch.\tIV in particular.  The Act  consists
\nof 10 chapters and deals mainly with administrative problems
\nin  relation  to  motor vehicles.   Chapter  11\t deals\twith
\nlicensing  of drivers of motor vehicles.  Chapter IIA  deals
\nwith licensing of conductors of State carriages and  Chapter
\nIII  with  registration of motor vehicles.   Chapter  IV  is
\nconcerned with the control of transport vehicles and in this
\nchapter\t are  included\tthe  relevant  provisions  for\t the
\napplications  for  grant of permits,  the  consideration  of
\nthose  applications  and other allied topics.\tChapter\t IVA
\nincludes the provisions relating to
\n(1)  A.I.R. (1959) S.C. 896.\n<\/p>\n
9<\/span><\/p>\n
State Transport Undertakings.  Chapter V addresses itself to
\nthe  construction, equipment and maintenance of motor  vehi-
\ncles, Chapter VI deals with the control of traffic, Chapter’
\nVII  has reference to motor vehicles temporarily leaving  or
\nvisiting India, Chapter VIII with the question of  insurance
\nof  motor  vehicles against third party\t risks,\t Chapter  IX
\nprescribes  offences,  penalties and procedures to  try\t the
\noffences -and Chapter X contains miscellaneous provisions.
\nThis  scheme  shows that the hierarchy of  transport  autho-
\nrities contemplated by the relevant provisions of the Act is
\nclothed\t  both\t with  administrative\tand   quasi-judicial
\nfunctions  and powers.\tIt is well settled that ss. 47,\t 48,
\n57,  60,  64  and 64A deal with\t quasi-judicial\t powers\t and
\nfunctions.   In other words, when applications are made\t for
\npermits\t under -the relevant provisions of the Act and\tthey
\nare considered ,on the merits, particularly in the light  of
\nthe evaluation of the claims of the respective parties,\t the
\ntransport  authorities are exercising quasi-judicial  powers
\nand are discharging quasijudicial functions, and so,  orders
\npassed\t by  them  in  exercise\t of  those  powers  and\t  in
\ndischarging  those functions are quasijudicial orders  which
\nare subject to the jurisdiction of the High Court under Art.
\n226,  vide  New Prakash Transport Co. Ltd.  v.\tNew  Suwarna
\nTransport  Co. Ltd.<\/a>(1) and M\/s Raman and Raman Ltd.  v.\t The
\nState of Madras and others<\/a>(3) and R. Abdulla Rowther v.\t The
\nState  Transport Appellate Tribunal Madras and others(3)  so
\nthat when we examine the question about the validity of\t the
\nimpugned  order, we cannot lose sight of the fact  that\t the
\nimpugned  order is concerned with matters which fall  to  be
\ndetermined  by\tthe  appropriate  transport  authorities  in
\nexercise of their quasi-judicial powers and in discharge  of
\ntheir quasi-judicial functions.\n<\/p>\n
The  other broad consideration relevant in dealing with\t the
\npresent\t controversy is that there are three sets of  provi-
\nsions  under the Act which confer legislative, judicial\t and
\nadministrative powers respectively on the State\t Government.
\nSection\t 67 which confers on the State Government  power  to
\nmake rules as to stage carriages and contract carriages\t and
\ns.  68 which confers power on the State Government  to\tmake
\nrules for the purposes of Ch.  IV are obviously\t legislative
\npowers, and in exercise of these powers, when the rules\t are
\nframed, they become statutory rules which have the force  of
\nlaw.  Naturally, the exercise of these legislative powers is
\ncontrolled  by the safeguard provided by s. 133 of the\tAct.
\nThis latter section requires that when power is exercised by
\nthe  State  Government to make rules, it is subject  to\t the
\ncondition that the rules must be previously published before
\nthey are
\n(1)  [1957]  S.C.R.  98\t p. 118. [1959]\t 2  S.C.R.  p.\t227.
\nA.I.R. (1959) S.C. 896.\n<\/p>\n
10<\/span><\/p>\n
made.\tThat is the effect of s. 133(i).  Sub-cl. (2) of  s.
\n133  provides  that all rules made under this Act  shall  be
\npublished  in the Official Gazette after they are  made\t and
\nshall, unless some later date, is appointed, come into force
\non the date of such publication.  Clause 3 is important.  It
\nprovides that all rules made under the Act shall be laid for
\nnot   less  than  fourteen  days  before   the\t appropriate
\nLegislature  as\t soon as possible after they are  made,\t and
\nshall  be subject to such modifications as  the\t appropriate
\nLegislature may make during the session in which they are so
\nlaid.  So that if statutory rules are made by the Government
\nin exercise of legislative powers conferred on it by ss.  67
\nand  68, they are subject to the control of the\t appropriate
\nlegislature  which can make changes or modifications in\t the
\nsaid rules if it is thought necessary or expedient to do so.
\nPublication before the rules are made and publication  after
\nthey  are  made also afford another statutory  safeguard  in
\nthat  behalf.  That is the nature of the  legislative  power
\nconferred on the State Government.\n<\/p>\n
Section\t 64A confers judicial power on the  State  Transport
\nAuthority,  because the said authority is  given  revisional
\njurisdiction to deal with orders therein specified,  subject
\nto  the\t limitations and conditions prescribed\tby  the\t two
\nprovisos  to  the said section.. This is a  clear  provision
\nconferring judicial power on the State Transport Authority.
\nAlong  with the legislative and judicial powers\t which\thave
\nthus been conferred, there is the administrative power\tcon-
\nferred on the State Government by s. 43A.  Section 43A reads
\nthus:\n<\/p>\n
,,The State Government may issue such orders and  directions
\nof  a  general character as it may  consider  necessary,  in
\nrespect\t of  any matter relating to road transport,  to\t the
\nState Transport Authority or a Regional Transport Authority;
\nand  such Transport Authority shall give effect to all\tsuch
\norders and directions”.\n<\/p>\n
It is the construction of this section which is the basis of
\nthe challenge to, the validity of the impugned rules in\t the
\npresent\t appeal.   It may be conceded that  there  are\tsome
\nwords in the section which are against the construction\t for
\nwhich Mr. Kumaramangalam contends.  The words “in respect of
\nany matter relating to road transport” are undoubtedly\twide
\nenough to take in not merely administrative matters but also
\nmatters\t which\tform  the area of  the\texercise  of  quasi-
\njudicial  authority by the Tribunals constituted  under\t the
\nAct.  Prima facie, there are no words of limitation in\tthis
\nclause and it would, therefore, be possible to take the view
\nthat  these  are  matters  which  are  scrutinised  by\t the
\nappropriate  authorities in exercising their  quasi-judicial
\njurisdiction.  Similarly, the State Transport Authority\t and
\nthe Regional Transport
\n11<\/span>
\nAuthority  to  which reference is made in this\tsection\t are
\nclothed\t not  only with administrative power but  also\twith
\nquasijudicial  jurisdiction  so that reference\tto  the\t two
\nauthorities  and  reference to any matter relating  to\troad
\ntransport would indicate that both administrative and quasi-
\njudicial matters come within the sweep of s. 43A.
\nBut there are several other considerations which support Mr.
\nKumaramangalam’s construction.\tThe first is the setting and
\nthe  context of the section.  As we have already seen,\tthis
\nsection\t has been introduced by the Legislature in  response
\nto  the\t decision of the Madras High Court in  C.S.S.  Motor
\nService\t case(1)  and that would indicate  that\t the  Madras
\nLegislature intended to confer on the State Government power
\nto  issue administrative orders or directions of  a  general
\ncharacter.  Besides, the two preceding sections s. 42 and s.
\n43  and\t s. 44 which follows support the argument  that\t the
\nfield covered by s. 43A like that covered by ss. 42, 43\t and
\n44 is administrative and does not include the area which  is
\nthe   subjectmatter  of\t the  exercise\t of   quasi-judicial
\nauthority by the relevant Tribunals.\n<\/p>\n
Then  again,  the use of the words ‘orders  and\t directions’
\nwould not be appropriate in regard to matters which fall  to
\nbe  considered\tby  authorities\t exercising   quasi-judicial
\npowers.\t  These\t words\twould be appropriate  if  they\thave
\nreference to executive matters.\n<\/p>\n
And  lastly,  the  provision  that  the\t relevant  transport
\nauthority  shall  give effect to all orders  and  directions
\nissued\tunder s. 43A would be clearly inappropriate  if\t the
\ninstructions issued under the said section are meant for the
\nguidance  of  quasi-judicial bodies.  If  the  direction  is
\nissued\tby  the appropriate Government in  exercise  of\t its
\npowers under s. 43A and it is intended for the guidance of a
\ntribunal  discharging  its quasi-judicial functions,  it  is
\nhardly necessary to say that the authority shall give effect
\nto such directions.  Section 43A being valid, if the  orders
\nand  directions of a general character having the  force  of
\nlaw can be issued within the scope of the said section, then
\nsuch orders or directions would by themselves be binding  on
\nthe transport authorities for whose guidance they are  made;
\nand  it\t would be superfluous to make a\t specific  provision
\nthat they are so binding.  On the other hand, if the  orders
\nand  directions are in the nature of  administrative  orders
\nand  directions,  they do not have the\tforce  of  statutory
\nrules  and cannot partake of the character of provisions  of
\nlaw,  and so, it may not be inappropriate to that  the\tsaid
\norders\tand directions shall be followed by the\t appropriate
\ntribunals.   Therefore,\t it seems to us that on a  fair\t and
\nLeasonable construction of s. 43A, it ought to be held\tthat
\nthe said section authorises the State Government\n<\/p>\n
-.R. [1931] Mad. 304
\n12<\/span>
\nto  issue orders and directions of a general character\tonly\n<\/p>\n
-tin  respect  of administrative matters which fall  to\t be,
\ndealt  with  by the State Transport  Authority\tor  Regional
\nTransport Authority under the relevant provisions of the Act
\nin their administrative capacity.\n<\/p>\n
In  reaching  this conclusion, we have\tbeen  influenced  by
\ncertain\t other\tconsiderations which are both  relevant\t and
\nmaterial.   In\tinterpreting s. 43A, we think, it  would  be
\nlegitimate  to\tassume\tthat  the  legislature\tintended  to
\nrespect\t the basic and elementary postulate of the  rule  of
\nlaw,  that in exercising their authority and in\t discharging
\ntheir  quasi-judicial  function, the  tribunals\t constituted
\nunder the Act must be left absolutely free to deal with\t the
\nmatter\taccording  to  their best judgment.  It\t is  of\t the
\nessence of fair and objective administration of law that the
\ndecision  of  the Judge or the Tribunal must  be  absolutely
\nunfettered  by any extraneous guidance by the  executive  or
\nadministrative\twing  of  the State.   If  the\texercise  of
\ndiscretion  conferred on a quasi-judicial tribunal  is\tcon-
\ntrolled\t by any such direction, that forges fetters on\tthe-
\nexercise  of  quasi-judicial authority and the\tpresence  of
\nsuch  fetters  would  make the exercise\t of  such  authority
\ncompletely  inconsistent  with the well-accepted  notion  of
\njudicial  process.   It is true that law  can  regulate\t the
\nexercise  of judicial powers.  It may indicate\tby  specific
\nprovisions  on what matters the tribunals constituted by  it
\nshould\tadjudicate.  It may by specific provisions lay\tdown
\nthe principles which have to be followed by the Tribunals in
\ndealing\t  with\tthe  said  matters.   The.  scope   of\t the
\njurisdiction  of  the Tribunals constituted by\tstatute\t can
\nwell be regulated by the statute and principles for guidance
\nof  the\t said tribunals may also be  prescribed\t subject  of
\ncourse\tto the inevitable requirement that these  provisions
\ndo  not contravene the fundamental rights guaranteed by\t the
\nConstitution.\tBut what law and the provisions of  law\t may
\nlegitimately  do cannot be permitted to be done by  adminis-
\ntrative\t or  executive\torders.\t This position\tis  so\twell
\nestablished  that we are reluctant to hold that in  enacting
\ns.  43A the Madras Legislature intended to confer  power  on
\nthe State Government to invade the domain of the exercise of
\njudicial power.\t In fact, if such had been the intention  of
\nthe  Madras Legislature and had been the true effect of\t the
\nprovisions  of\ts.  43A, s. 43A itself would  amount  to  an
\nunreasonable contravention of fundamental rights of citizens
\nand may have to be struck down as unconstitutional.  That is
\nwhy the Madras High Court in dealing with the validity of s.
\n43A had expressly observed that what s. 43A purported to  do
\nwas  to\t clothe\t the  Government  with\tauthority  to  issue
\ndirections of an administrative character and nothing  more.
\nIt  is somewhat unfortunate that though\t judicial  decisions
\nhave  always emphasised this aspect of the matter,  occasion
\ndid not arise so long
\n13<\/span>
\nto  consider the validity of the Government order  which  on
\nthe  construction suggested by the respondent would  clearly
\ninvade the domain of quasi-judicial administration.
\nThere is another consideration which is also important.\t  If
\ns.  43A authorises the State Government to issue  directions
\nor  orders in that wide sense, s. 68 would become  redundant
\nand  safeguards so elaborately provided by s. 133 while\t the
\nState Government purports to exercise its authority under s.
\n68,  would be meaningless.  If orders and directions can  be
\nissued by the State Government which are not distinguishable
\nfrom statutory rules, it is difficult to see why s. 68 would
\nhave  dealt  with  that topic  separately  and\tshould\thave
\nprovided  safeguards controlling the exercise of that  power
\nby s. 133.\n<\/p>\n
It  is likewise significant that the directions\t and  orders
\nissued under s. 43A are not required to be published nor are
\nthey required to be communicated to the parties whose claims
\nare  affected  by them.\t Proceedings  before  the  Tribunals
\nwhich  deal  with the applications for permits\tare  in\t the
\nnature of quasijudicial proceedings and it would, indeed, be
\nvery  strange  if  the Tribunals are required  to  act\tupon
\nexecutive  orders or directions issued under s. 43A  without
\nconferring on the citizens a right to know what those orders
\nare  and to see that they are properly enforced.   The\tvery
\nfact that these orders and directions have been consistently
\nconsidered  by\tjudicial  decisions  as\t administrative\t  or
\nexecutive  orders  which  do not confer\t any  right  on\t the
\ncitizens  emphatically\tbrings out the\ttrue  position\tthat
\nthese  orders  and directions are not  statutory  rules\t and
\ncannot therefore seek to fetter the exercise of\t quasi-judi-
\ncial  powers  conferred\t on the Tribunals  which  deal\twith
\napplications for permits and other cognate matters.
\nIt  is, however, urged that the principles laid down in\t the
\nimpugned order are sound principles and no challenge can  be
\nmade  to the validity of the order when it is conceded\tthat
\nthe  order  enunciates very healthy  and  sound\t principles.
\nThis  order,  it  is argued, can  be  considered  as  expert
\nopinion\t the  assistance of which is afforded by  the  State
\nGovernment  to\t,he Tribunals dealing with the\tquestion  of
\ngranting  permits.  We are not impressed by  this  argument.
\nIt  is\tnot the function of the executive to  assist  quasi-
\njudicial Tribunals by issuing directions in the exercise  of
\nits  powers conferred under s. 43A.  Besides, if s.  43A  is
\nvalid  and an order which is issued under it does  not\tfall
\noutside\t its  purview,\tit  would  be  open  to\t the   State
\nGovernment to issue a direction and require the Tribunal  to
\nfollow that direction unquestionably, in every case.  It  is
\ntrue that in regard to the marking system evolved by the im-
\npugned\trule, liberty is left to the Tribunal not  to  adopt
\nthat system for reasons to be recorded by it.  This  liberty
\nin practice
\n14<\/span>
\nmay  not mean much; but even theoretically, if the  impugned
\norder  is  valid, nothing can prevent the  State  Government
\nfrom issuing another order requiring that the marking system
\nprescribed by it shall always be followed.  We have  already
\nseen that s. 43A itself provides that effect shall be  given
\nto  the orders issued under it, and so, if an  order  issued
\nunder  s.  43A\titself were to prescribe that  it  shall  be
\nfollowed, it will have to be followed by the Tribunal and no
\nexception can be made in that behalf.  Therefore, we  cannot
\naccept\tthe  argument  strongly pressed\t before\t us  by\t Mr.
\nGanapathy  Iyer\t on  behalf of respondent  No.\t1  that\t the
\nvalidity  of  the order cannot be challenged on\t the  ground
\nthat  the principles laid down by it are sound and  healthy.
\nWe have, therefore, come to the conclusion that the impugned
\norder  is  outside  the purview of s.  43A  inasmuch  as  it
\npurports to give directions in respect of matters which have
\nbeen  entrusted to the Tribunals constituted under  the\t Act
\nand  which  have to be dealt with by these  Tribunals  in  a
\nquasi-judicial manner.\tWe cannot overlook the fact that the
\nvalidity  of  the  Act\tparticularly  in  reference  to\t its
\nprovisions prescribing the grant and refusal of permits, has
\nbeen sustained substantially because this important function
\nhas  been left to the decision of the Tribunals\t constituted
\nby  the\t Act and these Tribunals are  required\tto  function
\nfairly and objectively with a view to exercise their  powers
\nquasijudicially,  and  so, any attempt to  trespass  on\t the
\njurisdiction  of these Tribunals must be held to be  outside
\nthe purview of s. 43A.\n<\/p>\n
We  are\t conscious of the fact that the impugned  order\t was
\nissued\tafter and presumably in response to the decision  of
\nMadras\tHigh  Court in the case of C.S.S.  Motor  Service(1)
\nthough\tit  Would  appear  that\t what  the  High  Court\t had
\nsuggested was presumably the making of the rules under s. 68
\nof the Act.  It cannot also be disputed that the main object
\nof  the State Government in issuing this order was to  avoid
\nvagaries,  and introduce an element of certainty and  objec-
\ntivity,\t in the decision of rival claims made by  applicants
\nin  respect of their applications for permits.\tIt may\thave
\nbeen  thought by the State Government that if the  Tribunals
\nare  allowed  to  exercise  their  discretion  without\t any
\nguidance, it may lead to inconsistent decisions in different
\nareas  and  that may create dissatisfaction  in\t the  public
\nmind.\tIt does appear, however, that in some  other  States
\nthe  problem of granting permits has been  resolved  without
\nrecourse to the marking
\n15<\/span>
\nsystem.\t  But  apart from that, even if it is  assumed\tthat
\nthe,  marking  system,\tif properly applied,  may  make\t the
\ndecisions in regard to the grant of permits more  objective,
\nfair  and consistent, we do not see how\t that  consideration
\ncan  assist the decision of the problem raised before us  If
\nthe  State  Government thinks that the application  of\tsome
\nkind of marking
\nsystem is essential for a fair administration of the Act, it
\nmay  adopt such course as may be permissible under the\tlaw.
\nSection\t 47(1)(a) requires inter alia that the interests  of
\nthe  public  generally\thave  to be borne  in  mind  by\t the
\nRegional Transport Authority in considering applications for
\nstage  carriage permits.  The said section refers  to  other
\nmatters which have, to be borne in mind.  It is\t unnecessary
\nto  indicate them for our present purpose.  The\t Legislature
\nmay  amend  s. 47 by  indicating  additional  considerations
\nwhich  the Transport Authority has to bear in mind;  or\t the
\nLegislature  may  amend\t s. 47 by conferring  on  the  State
\nGovernment expressly and specifically a power to make  rules
\nin  that behalf or the State Government may proceed to\tmake
\nrules  under  s. 68 without amending s. 47.  These  are\t all
\npossible steps which may be taken if it is thought that some
\ndirections  in\tthe  nature of the provisions  made  by\t the
\nimpugned  order must be issued.\t That, however, is a  matter
\nwith  which  we are not concerned and on which\twe  wish  to
\nexpress no opinion.  As this court has often emphasised,  in
\nconstitutional\tmatters it is of utmost importance that\t the
\ncourt should not make any obiter observations on points, not
\ndirectly  raised before it for its decision.  Therefore,  in
\nindicating the possible alternatives which may be adopted if
\nthe  State Government thinks that the marking  system  helps
\nthe  administration  of the Act, we should not be  taken  to
\nhave  expressed\t any opinion on the validity of any  of\t the
\ncourses specified.\n<\/p>\n
That leaves only one point to be considered.  Mr.  Ganapathy
\nIyer urged that even though the impugned order may be valid,
\nthat  is  no reason why the order passed  by  the  Appellate
\nTribunal  which has been confirmed by the High Court in\t the
\npresent writ proceedings should be reversed.  He argues that
\nwhat  the  Appellate Tribunal has done, is to act  upon\t the
\nprinciples   which  are\t sound\tand  the  fact\tthat   these
\nprinciples  have been enunciated by an invalid order  should
\nnot  nullify the decision of the Appellate Tribunal  itself.
\nThus  presented, the argument is no doubt plausible;  but  a
\ncloser\texamination  of\t the argument  reveals\tthe  fallacy
\nunder-lying  it.  If the Appellate Transport  Authority\t had
\nconsidered these, matters on its own without the  compulsive
\nforce  of  the impugned order, it would\t have  been  another
\nmatter-, but the order pronounced by the Appellate Authority
\nclearly\t and unambiguously indicates that it held and  in  a
\nsense  rightly,\t that it was bound to  follow  the  impugned
\norder  unless  in the exercise of its option it\t decided  to
\ndepart\tfrom it and was prepared to record its\treasons\t for
\nadopting  that\tcourse.\t  It would, We\tthink,\tbe  idle  to
\nsuggest\t that  any Transport Authority\tfunctioning  in\t the
\nState would normally refuse to comply with the order  issued
\nby the State Government itself.\t Therefore,
\n16<\/span>
\nwe  have no hesitation in holding that the decision  of\t the
\nAppellate Tribunal is based solely on the provisions of\t the
\nimpugned  order\t and since the said order  is  invalid,\t the
\ndecision itself must be corrected by the issue of a writ  of
\ncertiorari.\n<\/p>\n
In  the\t result, we allow the appeal, set  aside  the  order
\npassed\tby the High Court in Writ Petition No. 692  of\t1959
\nand  direct that the said Writ Petition be  allowed.   There
\nwould  be  no order as to costs throughout.   In  accordance
\nwith  this  decision a writ of certiorari  shall  be  issued
\nsetting aside the order passed by the Appellate Tribunal and
\nremanding the matter to the Regional Transport Authority for
\ndisposal in accordance with law.\n<\/p>\n
Appeal allowed
\n17<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India B. Rajagopala Naidu vs State Transport Appellate … on 5 March, 1964 Equivalent citations: 1964 AIR 1573, 1964 SCR (7) 1 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Shah, J.C., Ayyangar, N. Rajagopala, Sikri, S.M. PETITIONER: B. RAJAGOPALA NAIDU Vs. RESPONDENT: STATE TRANSPORT APPELLATE TRIBUNAL & ORS. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-212890","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nB. 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