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TMI Blog1983 (5) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Dharmavaram" (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apur" 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions 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 alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um 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, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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-s (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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the other". (See: Crawford on Construction of Statutes, 1940 Edn. Art. 261). Supreme Court in Pratap Singh v. Krishna Gupta, [1955]2SCR1029 : "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 objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs 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 rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, [1981]1SCR746 said: "24 ............In our view the principles of natural justice know of no exclusionary rule dependent on whether it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y exercised the jurisdiction of the 'STA' in this behalf and granted the 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot;(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, [1960]2SCR146 : "(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, [1962]2SCR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Judge 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, [1980]1SCR1170 the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 that 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 vari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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