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TMI Blog1964 (3) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... to the grant of permits under the relevant provisions of the Act has figured prominently in the Madras High Court in the form of writ petitions invoking the said High Court s jurisdiction under Art. 226 of the Constitution and several aspects of the impugned order have come to be examined. The echoes of such litigation have frequently been heard in this Court and this Court has had occasion to deal with the impugned order, its character, its scope and its effect-, but on no occasion in the past, the validity of the order appears to have been questioned. The legislative and judicial background of the order and the course of judicial decisions in regards to the points raised in the enforcement of this order would prima facie and at the first blush suggest that the attack against the validity of the order may not be wellfounded and that would tend to make the initial judicial response to the said challenge more hesitant and reluctant. But Mr. Kumaramangalam contends that s. 43A under which the order purports to have been passed would clearly show that the said order is outside the purview of the authority conferred on the State Government and is therefore invalid. It is obvious that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals were allowed, the order under appeal was set aside and two permits were granted to them. This order was passed on July 4, 1959. The appellant then invoked the jurisdiction of the Madras High Court under Art. 226 of the Constitution by this writ petition No. 692 of 1959. In his writ petition the appellant challenged the validity of the order passed by the Appellate Tribunal on several grounds. One of them was that the impugned order on which the decision of the Appellate Tribunal was based, was invalid. This plea along with the other contentions raised by the appellant failed and the learned Single Judge who heard his writ petition dismissed the petition, on October 18, 1962. The appellant then challenged the correctness of this decision by a Letters Patent Appeal No. 214 of 1962 before a Division Bench of the said High Court. The Division Bench, however, agreed with the view taken by the Single Judge and dismissed the Letters Patent Appeal preferred by the appellant. The appellant then moved the said High Court for leave, but failed to secure it, and that brought him here with an application for special leave which was granted on November 14, 1963. It is with this specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... renewal of permits. That is how it was established by this decision that as the Act stood, the State Government had no authority to issue directions as to how applications for permits or their renewal should be dealt with by the Tribunals constituted under the Act. This judgment was pronounced on November 19, 1947. As a result of this judgment, the Madras Legislature amended the Central Act by Act XX of 1948 which came into force on December 19, 1948. Amongst the amendments made by this Act was the insertion of s. 43A with which we are concerned in the present appeal. This section clothed the State Government with powers to issue certain directions and orders. As we have already indicated, the point which we are, considering in the present appeal is whether the impugned order falls within the purview of the power and authority conferred on the State Government by this section. We will read this section later when we address ourselves to the question of its construction. The amendment of the Central Act led to the next round of controversy between the bus operators and the State Government and that resulted in the decision of the Madras High Court in C.S.S. Motor Service Tenk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its authority derived from s. 43A which was held to be valid. The impugned order deals with five topics. The first topic has relation to the instructions which had to be borne in mind whilst screening the applicants who ask for permits. This part of the order provides that the applicants may be screened and disqualified on one or more of the principles enunciated in cls. 1 to 4 in that part. The second part deals with the system of assigning marks to the several claimants, under four columns. In laying down these principles, the impugned order intended to secure precision in the disposal of claims for permits and to enable quick consideration of the merits of such claimants. This part of the order, however, made it clear that in cases where the system of marking worked unfairly the Regional Transport Authority may ignore the marks obtained for reasons to be stated. It is this part of the order which has introduced the marking system which has been the special feature of adjudication of claims for permits in the State of Madras. These two parts are described as A. in the Government order. Part 3 deals with the variation, or extension of routes granted under the permits. Part 4 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, Madras and others(A.I.R. (1959) S.C. 896) this Court held by a majority decision that the orders and directions issued under s. 43A were merely executive or administrative in character and their breach, even if patent, would not justify the issue of a writ of certiorari. It was also observed that though the orders were executive and did not amount to statutory rules, they were rules binding on the transport authorities for whose guidance they have been issued, but that did not confer any right on the citizen and so a plea that a contravention of the orders should be corrected by the issue ,of an appropriate writ was rejected. Such contravention, it was held, might expose the Tribunal to the risk of disciplinary or other appropriate action, but cannot entitle a citizen to make a complaint under Art. 226. It is necessary to emphasise that in both these cases no argument was urged that the impugned order was itself invalid and should have been ignored by the Tribunals exercising quasi-judicial authority under the relevant provisions of the Act. The Court was no doubt called upon to consider the character of the impugned order and some of the reasons given in support of the conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective parties, the transport authorities are exercising quasi-judicial powers and are discharging quasijudicial functions, and so, orders passed by them in exercise of those powers and in discharging those functions are quasijudicial orders which are subject to the jurisdiction of the High Court under Art. 226, vide New Prakash Transport Co. Ltd. v. New Suwarna Transport Co. Ltd.(1) and M/s Raman and Raman Ltd. v. The State of Madras and others(3) and R. Abdulla Rowther v. The State Transport Appellate Tribunal Madras and others(3) so that when we examine the question about the validity of the impugned order, we cannot lose sight of the fact that the impugned order is concerned with matters which fall to be determined by the appropriate transport authorities in exercise of their quasi-judicial powers and in discharge of their quasi-judicial functions. The other broad consideration relevant in dealing with the present controversy is that there are three sets of provisions under the Act which confer legislative, judicial and administrative powers respectively on the State Government. Section 67 which confers on the State Government power to make rules as to stage carriages and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any matter relating to road transport, to the State Transport Authority or a Regional Transport Authority; and such Transport Authority shall give effect to all such orders and directions . It is the construction of this section which is the basis of the challenge to, the validity of the impugned rules in the present appeal. It may be conceded that there are some words in the section which are against the construction for which Mr. Kumaramangalam contends. The words in respect of any matter relating to road transport are undoubtedly wide enough to take in not merely administrative matters but also matters which form the area of the exercise of quasijudicial authority by the Tribunals constituted under the Act. Prima facie, there are no words of limitation in this clause and it would, therefore, be possible to take the view that these are matters which are scrutinised by the appropriate authorities in exercising their quasi-judicial jurisdiction. Similarly, the State Transport Authority and the Regional Transport Authority to which reference is made in this section are clothed not only with administrative power but also with quasijudicial jurisdiction so that reference to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders and directions shall be followed by the appropriate tribunals. Therefore, it seems to us that on a fair and Leasonable construction of s. 43A, it ought to be held that the said section authorises the State Government -.R. [1931] Mad. 304 to issue orders and directions of a general character only -tin respect of administrative matters which fall to be, dealt with by the State Transport Authority or Regional Transport Authority under the relevant provisions of the Act in their administrative capacity. In reaching this conclusion, we have been influenced by certain other considerations which are both relevant and material. In interpreting s. 43A, we think, it would be legitimate to assume that the legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi-judicial function, the tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment purports to exercise its authority under s. 68, would be meaningless. If orders and directions can be issued by the State Government which are not distinguishable from statutory rules, it is difficult to see why s. 68 would have dealt with that topic separately and should have provided safeguards controlling the exercise of that power by s. 133. It is likewise significant that the directions and orders issued under s. 43A are not required to be published nor are they required to be communicated to the parties whose claims are affected by them. Proceedings before the Tribunals which deal with the applications for permits are in the nature of quasijudicial proceedings and it would, indeed, be very strange if the Tribunals are required to act upon executive orders or directions issued under s. 43A without conferring on the citizens a right to know what those orders are and to see that they are properly enforced. The very fact that these orders and directions have been consistently considered by judicial decisions as administrative or executive orders which do not confer any right on the citizens emphatically brings out the true position that these orders and directions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons prescribing the grant and refusal of permits, has been sustained substantially because this important function has been left to the decision of the Tribunals constituted by the Act and these Tribunals are required to function fairly and objectively with a view to exercise their powers quasijudicially, and so, any attempt to trespass on the jurisdiction of these Tribunals must be held to be outside the purview of s. 43A. We are conscious of the fact that the impugned order was issued after and presumably in response to the decision of Madras High Court in the case of C.S.S. Motor Service(1) though it Would appear that what the High Court had suggested was presumably the making of the rules under s. 68 of the Act. It cannot also be disputed that the main object of the State Government in issuing this order was to avoid vagaries, and introduce an element of certainty and objectivity, in the decision of rival claims made by applicants in respect of their applications for permits. It may have been thought by the State Government that if the Tribunals are allowed to exercise their discretion without any guidance, it may lead to inconsistent decisions in different areas and that ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one, is to act upon the principles which are sound and the fact that these principles have been enunciated by an invalid order should not nullify the decision of the Appellate Tribunal itself. Thus presented, the argument is no doubt plausible; but a closer examination of the argument reveals the fallacy under-lying it. If the Appellate Transport Authority had considered these, matters on its own without the compulsive force of the impugned order, it would have been another matter-, but the order pronounced by the Appellate Authority clearly and unambiguously indicates that it held and in a sense rightly, that it was bound to follow the impugned order unless in the exercise of its option it decided to depart from it and was prepared to record its reasons for adopting that course. It would, We think, be idle to suggest that any Transport Authority functioning in the State would normally refuse to comply with the order issued by the State Government itself. Therefore, we have no hesitation in holding that the decision of the Appellate Tribunal is based solely on the provisions of the impugned order and since the said order is invalid, the decision itself must be corrected by the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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